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Brent Allen Winters, et al v. Delores Jordan

March 8, 2011


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


Presently before the court is defendant Dewey Harpainter's motion to dismiss plaintiffs' Third Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn1 (See Dkt. No. 131.) Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, recommends that all of plaintiffs' claims against Harpainter, except the claim of trespass on land asserted by plaintiffs Cacey and Jennifer Winters, be dismissed with prejudice.


Plaintiffs' Third Amended Complaint*fn2 is a wide-ranging, 25-page complaint that alleges, in eight-point font, over two-dozen claims for relief against over 60 defendants.*fn3 (Dkt. No. 66.) Several of plaintiffs' claims are alleged against "All Defendants," with no differentiation in regards to the alleged conduct of each defendant that supports each such claim. 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.*fn4 (Order and Findings & Recommendations, Aug. 24, 2009, at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)

Generally, the claims against Harpainter arise out of an underlying family dispute between the Winters family and defendant Virginia Armstrong, who is, among other things, the mother of plaintiff Susan Winters and grandmother to other plaintiffs. 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 permanently returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties, including the residence at 11318 Via Vista in Nevada City, California, 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, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son. (Id.)

The relationship between Virginia Armstrong and plaintiffs, which apparently gave rise to allegations of possible elder abuse, resulted in several proceedings in the Nevada County Superior Court. For example, restraining orders were sought by other named defendants to keep plaintiffs away from Virginia Armstrong, and plaintiff Susan Winters sought a restraining order to keep certain of the named defendants away from Virginia Armstrong. Relevant here, on April 21, 2008, a judge of the Nevada County Superior Court, Judge Thomas Anderson, "instituted proceedings for restraining orders" against plaintiffs Susan Winters, Brent Winters, and all of their children, and such restraining order was allegedly for the protection of Virginia Armstrong. (Third Am. Compl. ¶ 46.) That same day, Judge Anderson, on his own motion, appointed Harpainter, an attorney, to represent Virginia Armstrong "to prosecute the restraining orders." (Id. ¶ 47.) All of plaintiffs' claims against Harpainter arise from Harpainter's representation of Virginia Armstrong and predominantly involve Harpainter's filings with and representations in the Nevada County Superior Court.

Also relevant to plaintiffs' claims against Harpainter, plaintiffs allege that on May 1, 2008, "Harpainter tried to clandestinely trespass" into plaintiff's home, "alleging he was trying to find his client Virginia and was concerned about her well-being." (Third Am. Compl. ¶ 51.) On May 14, 2008, plaintiffs Cacey and Jennifer Winters allegedly filed for a restraining order against Harpainter because, in part, they feared for their safety. (Id. ¶ 56.) Judge Anderson allegedly denied the application for a restraining order, stating: "I appointed this attorney and this is not what Restraining Orders are for." (Id. ¶ 57 (quotation marks omitted).)

Plaintiffs' Third Amended Complaint alleges the following claims against Harpainter: abuse of process (claim 6); violation of plaintiffs' rights of equal protection (claim 7); violation of plaintiffs' Fifth Amendment and Fourteenth Amendment due process rights (claim 8); trespass to land (claim 12); trespass to chattels (claim 13), which is alleged against "All Defendants"; violation of 42 U.S.C. § 1983 (claim 14), which is alleged against "All Defendants"; civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15), which is alleged against "All Defendants"; civil conspiracy (claim 18), which is alleged against "All Defendants"; "Slander, Libel, and Slander & Libel Per Se" (claim 21); violation of plaintiffs' First Amendment rights of religious expression (claim 27); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31), which is alleged against "All Defendants"; loss of consortium (claim 36), which is alleged against "All Defendants"; and intentional infliction of emotional distress (claim 38), which is alleged against "All Defendants." In response to the filing of the Third Amended Complaint, Harpainter filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).


A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) ("In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 'affidavits or any other evidence properly before the court . . .. It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." (citation omitted, modification in original)).

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"). In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).


A. Harpainter's Arguments Premised on Jurisdictional and Abstention Doctrines

At the outset, Harpainter argues that this court lacks jurisdiction over plaintiffs' claims or should abstain from adjudicating those claims on the basis of the Rooker-Feldman doctrine, the Younger abstention doctrine, the trust and domestic relations exception to federal subject matter jurisdiction, and the probate exception to federal subject matter jurisdiction. (See County Defendants' Mot. to Dismiss at 5-7.) It readily appears that Harpainter simply copied the same unsuccessful arguments offered by other defendants who previously moved to dismiss plaintiff's Third Amended Complaint. (See, e.g., Mot. to Dismiss, Feb. 16, 2010, Dkt. No. 107.) Harpainter's jurisdictional and abstention arguments premised on the above-referenced doctrines and principles are unpersuasive for the same reasons provided in the undersigned's previously entered findings and recommendations, which were adopted in full. (See Findings & Recommendations, July 20, 2010, at 11-17, Dkt. No. 144, adopted by, Order, Sept. 14, 2010, Dkt. No. 177.)

B. Harpainter's Arguments Premised on California's Litigation

Privilege Next, Harpainter argues that plaintiffs' claims are barred by the absolute litigation privilege provided in California Civil Code § 47(b). The undersigned assumes that Harpainter argues that all of the claims alleged against him are barred by the privilege because Harpainter does not specify which claims he believes are subject to the privilege. Although the undersigned agrees that claims six and twenty-one should be dismissed pursuant to the litigation privilege, and that claims thirty-six and thirty-eight are subject to the privilege in part, the remaining claims are not subject to that privilege.

California's litigation privilege, found at California Civil Code § 47(b), provides, in part, that a publication or broadcast made as part of a judicial proceeding is privileged. See also Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241, 163 P.3d 89, 95 (2007). The California Supreme Court recently summarized this litigation privilege as follows:

This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.

Id. (citations and internal quotation marks omitted, modification in original). "[W]here the gravamen of the complaint is a privileged communication . . . the privilege extends to necessarily related non-communicative acts. . . ." Rusheen v. Cohen, 37 Cal. 4th 1048, 1062, 128 P.3d 713, 722 (2006). The California Supreme Court has given this privilege "a broad interpretation" in furtherance of the purpose of the privilege, which is "to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." Action Apartment Ass'n, Inc., 41 Cal. 4th at 1241, 163 P.3d at 95. Thus, although the privilege was originally enacted with reference to claims of defamation, "'the privilege is now held applicable to any communication, whether ...

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