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Joan Brown Kearney v. Foley and Lardner

March 28, 2011


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


Defendants Foley & Lardner, Gregory V. Moser, and Larry L. Marshall (collectively "Foley defendants") move to dismiss plaintiff's second amended complaint ("SAC"). The motion has been fully briefed and considered without oral argument. For the reasons set forth below, the Court enters the following decision.


Plaintiff is the former owner of a 52.06 acre parcel of land in Ramona, California. The Ramona Unified School District ("District" or "RUSD") board adopted a resolution declaring it necessary to acquire plaintiff's property through eminent domain proceedings for construction of a new school. Defendants include the law firm of Foley and Lardner, LLC, and two individuals, Moser and Marshall, who were Foley partners during the relevant time and who represented the District in the eminent domain action. Defendant Michael T. McCarthy*fn1 was an assistant superintendent of the RUSD. The District was granted an order authorizing it to take possession of the property on December 29, 2000.

The condemnation trial began on April 29, 2002, and ended on May 9, 2002. At issue in the trial was the fair market value of the property, which is defined as the highest price on the date of valuation that would be agreed to by the seller. (CAL. CODE CIV. P. § 1263.320). The fair market value is determined by residential use of the property and how many buildings could be built on the property. The number of buildings supportable on the property is dependent upon the number of septic systems permitted which is dependent upon how well the soil would percolate. (FAC ¶ 28). After the presentation of witnesses and evidence, the jury awarded plaintiff $953,000.00 as the fair market value of her property.

Soon thereafter, plaintiff filed a motion for new trial contending that the District's counsel had wrongfully argued that the District had not performed percolation ("perc") tests on her property even though the District had expended money to conduct such a test. Plaintiff's motion was denied with the trial court noting there was no evidence that the District withheld any information from plaintiff. Plaintiff appealed the decision denying her motion for a new trial. On March 3, 2004, the California Court of Appeal, Fourth Appellate District, affirmed the judgment of the Superior Court.

During the time plaintiff's appeal was pending, she filed a motion to set aside the judgment and for a new trial on the ground that the District and its counsel had concealed evidence of additional perc tests. The trial court denied plaintiff's motion finding it had no jurisdiction because of plaintiff's then-pending appeal.

Thereafter, plaintiff filed another motion for reconsideration of the trial court's order denying its motion to set aside the judgment. Again the court denied the motion for lack of jurisdiction.

Plaintiff filed a notice of appeal challenging the motion to set aside the judgment and the motion for reconsideration. The appeal was styled as a petition for writ of error coram vobis. The court of appeals took up all the appellate matters and affirmed the judgment denying plaintiff's motion for a new trial; affirmed the denial of the motion to set aside the judgment; and denied the appeal for writ of coram vobis. The court of appeals denied a petition for rehearing. Plaintiff then petitioned the California Supreme Court for review. On May 19, 2004, the Supreme Court denied review.

Plaintiff filed the present action on November 14, 2005. On January 20, 2006, plaintiff filed a First Amended Complaint in this Court alleging causes of action for Racketeer Influenced and Corrupt Organizations Act ("RICO"); conspiracy to violate RICO under section 1962(c); 42 U.S.C. § 1983; false promise; fraud and deceit; spoliation of evidence; and prima facie tort against defendants. Defendants filed motions to dismiss. The Court dismissed the federal causes of action based upon the Noerr-Pennington Doctrine and the state law causes of action. Plaintiff appealed the decision.

The Ninth Circuit affirmed dismissal of plaintiff's state law causes of action but reversed the dismissal of the federal claims finding that the Noerr-Pennington doctrine's sham litigation exception applied to plaintiff's claims thereby preventing the immunization of defendants' petitioning conduct. Kearney v. Foley & Lardner, 590 F.3d 638 (9th Cir. 2009). The action was remanded to consider plaintiff's federal law claims. After remand, plaintiff filed a second amended complaint ("SAC") to which the Foley defendants filed the present motion to dismiss.


Section 1983 Claim

1. Acting Under Color of State Law

The Foley defendants move to dismiss plaintiff's 42 U.S.C. § 1983 claim for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). A complaint may be dismissed as a matter of law if it lacks a cognizable legal theory or states insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

The factual allegations of a complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). A plaintiff must plead more than conclusory allegations to show "plausible liability" and avoid dismissal. at 1966 n. 5. The pleading standard of Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation" and a complaint does not suffice "if it tenders 'naked assertion[s]' devoid ...

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