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Michal Wawrzynski v. Byron Hibshman; Marko

March 18, 2011


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court


On January 28, 2011, Defendants Siavish Pazargadi and Marko Radovanovic filed a motion to dismiss Plaintiff's first amended complaint. (Doc. No. 11.) On February 28, 2011, Plaintiff filed a response in opposition to Defendants' motion. (Doc. No. 12.) On March 7, 2011, Defendants filed their reply. (Doc. No. 14.) The Court determined this matter to be appropriate for resolution without oral argument and submitted it on the parties' papers pursuant to Local Civil Rule 7.1(d)(1). (Doc. No. 13.) For the reason below, the Court GRANTS Defendants' motion to dismiss.


On September 9, 2010, Plaintiff, the owner and operator of a small fleet of pedicabs, filed a complaint in San Diego Superior Court against Defendants Pazargadi, Radovanovic, and Byron Hibshman alleging that they violated his constitutional rights entitling Plaintiff to damages under 42 U.S.C. § 1983. (Doc. No. 1, Compl.) Plaintiff alleges that from January 14, 2010 to December 31, 2010, Defendant police officers conspired to retaliate against Plaintiff for filing a lawsuit that challenged the constitutionality of San Diego's new pedicab ordinance and related lottery system. (Doc. No. 9 ¶¶ 19, 28.) On November 15, 2010, Defendants removed the action to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. (Doc. No. 1, Notice of Removal.) Defendants argue that Plaintiff's complaint does not contain any allegations of wrongdoing by Defendants or allegations that Defendants acted in bad faith or with malice towards Plaintiff. (Doc. No. 11-1 at 6-7.) Defendants also argue that the conduct complained of by Plaintiff was already determined to be non-actionable in prior state court proceedings. (Doc. No. 11-1.)

On December 20, 2010, the Court dismissed Plaintiff's complaint with leave to amend on res judicata grounds based on Plaintiff's previous action against Defendants in San Diego Superior Court, Wawryzynski v. City of San Diego, No. 37-2010-00065138 (Cal. Sup. Ct. 2010). (Doc. No. 8.) In that action, the court sustained Defendants Hibshman, Pazargardi, and Radovanovic's demurrers on Plaintiff's third amended complaint without leave to amend. (Doc. No. 3-6.)*fn1 The state court held that Plaintiff could not state a cause of action against the Defendants because his allegations only stated that Defendants were following city procedures and Defendants were thus immune. (Id. at 1.) That court also stated that "[Plaintiff] has been given several opportunities to allege a viable [cause of action] and has failed to do so." (Id. at 1.)

On January 19, 2011, Plaintiff filed his first amended complaint ("FAC"). (Doc. No. 9.) Plaintiff's FAC added Kevin Friedman as a Defendant, added additional factual allegations about incidents occurring after August 2010, and added additional causes of actions against the Defendants for violations of Cal. Civ. Code § 52.1. (Id.)


I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). "All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at 555.

II. Plaintiff's § 1983 claims

Defendants Pazargardi and Radovanovic argue that Plaintiff's § 1983 claims should be dismissed because his claims are barred on the grounds of res judicata. (Doc. No. 11-1.) Defendants argue that Plaintiff's claims were decided in prior state court proceedings where that court sustained Defendants' demurrer without leave to amend. (Id.) In response, Plaintiff argues that his FAC added a new Defendant Kevin Freidman, and contains new factual allegations in support of his causes of action that occurred after the state court ruling. (Doc. No. 12.)

A defendant may raise the affirmative defense of res judicata by motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). Federal courts must afford full faith and credit to state court judgments. 28 U.S.C. § 1738; San Remo Hotel, L.P. v. City and Cnty. of San Francisco, 545 U.S. 323, 336 (2005). Federal courts look to state law to determine the preclusive effect of a state court judgment. Manufactured Home Cmtys. v. City of San Jose, 420 F.3d 1022, 1031 (9th Cir. 2005). Accordingly, the Court applies California's res judicata law in ruling on Defendants' motion to dismiss. See Park Ass'n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir. 1993).

Under California law,

[t]he doctrine of res judicata precludes the relitigation of certain matters which have been resolved in a prior proceeding under certain circumstances. Its purpose is "to preserve the integrity of the judicial system, promote judicial economy, ...

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