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Joan Brown Kearney v. Lardner

November 29, 2012


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge


Before the Court is Defendant Michael T. McCarty's Motion for Judgment on the Pleadings. (Doc. No. 169). The Plaintiff filed an opposition, (Doc. No. 186), and Defendant McCarty filed a reply, (Doc. No. 187). Defendant McCarty is the sole-remaining defendant in this action. In accordance with Civil Local Rule 7.1.d.1, the Court finds this motion suitable for determination on the papers and without oral argument. Accordingly, the motion hearing scheduled for December 14, 2012, is hereby vacated. For the reasons set forth herein, the Defendant's Motion is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. Accordingly, the Clerk of the Court is instructed to enter judgment accordingly and close the case.

Factual and Procedural Background

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 ("F&L"), 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. McCarty was an assistant superintendent of the RUSD. The District was granted an order authorizing it to take possession of the property on December 29,

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"). Defendants filed a motion to dismiss the SAC, (Doc. No. 106), which was subsequently granted with leave for Plaintiff to amend her RICO claims. (Doc. No. 122).

The Plaintiff then filed her Third Amended Complaint ("TAC"), alleging two causes of action against the Attorney Defendants and Michael McCarty. Plaintiff's first cause of action was for violation of 18 U.S.C. § 1963(c), the Racketeer Influence and Corrupt Organization Act (RICO), against all named defendants. The second cause of action was for conspiracy to violate RICO against Defendant F&L. The Honorable Judge Lorenz, who previously presided over this case, issued a recusal on April 26, 2011. The Attorney Defendants moved to dismiss the TAC. (Doc. No. 126). This Court granted the motion to dismiss on July 22, 2011. (Doc. No. 139).

Plaintiff filed her Fourth Amended Complaint ("FAC") on August 15, 2011, in which she again brought a cause of action for violation of RICO against all named defendants, and for conspiracy to violate RICO against Defendant F&L. Attorney Defendants moved to dismiss the FAC on September 1, 2011. (Doc. No. 142). Defendant McCarty did not join in the motion. On March 15, 2012, the ...

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