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Joan Brown Kearney v. Foley and Lardner

March 28, 2011


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


Defendant Michael T. McCarty*fn1 moves to dismiss the two causes of action alleged against him in plaintiff's SAC. The motion has been fully briefed. The Court finds this matter suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).


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. Defendant McCarty was an assistant superintendent of the RUSD during the time at issue in the underlying condemnation proceeding. 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 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 was determined by residential use of the property and how many buildings could be built on the property. The number of buildings was dependent upon the number of septic systems permitted which was dependent upon how well the soil would percolate. FAC ¶28. The jury awarded plaintiff $953,000 as the fair market value of her property.

Soon thereafter, plaintiff filed a motion for new trial contending that the District's counsel 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. The motion was denied with the trial court noting there was no evidence that the District withheld any information. Plaintiff then appealed that 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 to grant her a new trial on the ground that the District and its counsel had concealed evidence of the perc tests. The trial court denied plaintiff's motion finding it had no jurisdiction because of plaintiff's then-pending appeal.

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.

Then plaintiff filed a notice of appeal challenging the motion to set aside the judgment and the motion for reconsideration. The appeal was 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 two federal statutory claims, RICO and 42 U.S.C. § 1983, and claims of spoliation of evidence; and prima facie tort against McCarty. Defendant McCarty was sued in his individual capacity although he contends that his actions were taken in his official capacity on behalf of the District which was not a named defendant in this action.

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 defendant McCarty filed the present motion to dismiss.


Section 1983 Claim

McCarty contends plaintiff's 42 U.S.C. ยง 1983 cause of action must be dismissed as time barred under the statute of limitations. "A motion to dismiss based on the running of the statute of limitations period may be granted only 'if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove the statute was tolled.'" Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995), quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). The untimeliness must ...

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