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Gavin v. Arntz

United States District Court, Ninth Circuit

August 30, 2013

LYNN GAVIN, Plaintiff,
v.
JOHN ARNTZ, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS

PHYLLIS J. HAMILTON, District Judge.

The motion of defendants City and County of San Francisco, its Board of Supervisors, former Supervisor Sean Elsbernd, the Office of the Mayor of San Francisco, Mayor Edwin Mah Lee, the San Francisco Department of Elections, Elections Commission and the Director of Elections John Arntz (together "City defendants") to dismiss plaintiff Lynn Gavin's ("Gavin") claims against them came on for hearing before this court on July 24, 2013. The City defendants appeared through their counsel Wayne Snodgrass. Plaintiff, who is proceeding in pro per, did not appear at the hearing. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the City defendants' motion to dismiss as follows.

BACKGROUND

On January 4, 2013, plaintiff filed a complaint in this court, asserting twelve causes of action against the City defendants, as well as against Parkmerced Investors Properties, LLC ("Parkmerced"), Seth Mallen and Bert Polacci (together "Parkmerced defendants"). Plaintiff's claims are for (1) declaratory relief, (2) injunctive relief, (3) fraud, (4) negligence, (5) defamation of character, (6) false claims, (7) nuisance, (8) unconscionability, (9) civil R.I.C.O., (10) deprivation of civil rights, (11) accounting and (12) interpleader.

A. Factual Background

Plaintiff's complaint is not clear as to the exact conduct that supports each cause of action. Nor does plaintiff attribute any of the alleged wrongful acts or omissions to specific defendants. However, the allegations seem to separate into three major categories: (1) events related to the denial of plaintiff's request for disability accommodations at her residence and subsequent unlawful detainer case, which pertain to the Parkmerced defendants; (2) conduct by various San Francisco officials and agencies, including the San Francisco Municipal Transportation Agency's ("SFMTA") denial of plaintiff's request for a handicapped parking space designation near her home and the San Francisco Sheriff's eviction of plaintiff; and (3) allegations against the City and its election officials concerning plaintiff's unsuccessful race for Supervisor in San Francisco's District 7.

Starting with category (1), on March 1, 2010, plaintiff entered into a lease with Parkmerced. Complaint, ¶ 7. Plaintiff alleges that sometime during the lease term, prompted by her medical condition, she requested that Parkmerced install grab bars in her bathroom, a reasonable accommodation that Parkmerced refused to make. Id., ¶ 32. Plaintiff asserts that this refusal constitutes discrimination against her as a person with disabilities. Id., ¶ 33. On August 24, 2011, and again on September 19, 2011, plaintiff received three-day notices to perform covenant or quit for non-payment of utilities, which she insists were "fraudulently issued" in retaliation against her, because she "is a disabled person who asserts her rights." Id., ¶¶ 68-70, 74. Eventually, Parkmerced filed an unlawful detainer claim in San Francisco Superior Court, and on July 2, 2012, obtained a default judgment against plaintiff. Id., ¶ 99. On July 10, 2012, plaintiff filed an ex parte request to set aside the default judgment, which the court denied on July 17, 2012, only staying the judgment until July 25, 2012. Id., ¶ 110. Plaintiff alleges that the Superior Court's ruling was "wrongful" and that it violates her right to a jury trial. Id., ¶ 111. On July 25, 2012, plaintiff was evicted by the San Francisco Sheriff's Department. Id., ¶ 118.

As to category (2), plaintiff also had interactions with several San Francisco agencies during the course of the above-mentioned events. Plaintiff alleges that she contacted the SFMTA, requesting the designation of a handicapped parking spot near her home, but that the agency denied her request via a letter sent on August 18, 2011. Id., ¶¶ 62-63. Plaintiff also mentions several hearings and findings of the Sunshine Task Force between August 2011 and April 2012, but does not elaborate about the nature or subject matter of these events. Id., ¶¶ 64-66, 73, 76, 85. Plaintiff alleges that she filed complaints against several City Supervisors, the City Attorney and various other officials, and that the Sunshine Task Force held hearings and made findings, but offers no specifics. Id . Additionally, plaintiff represents that she received a verification from the San Francisco Human Rights Commission ("SFHRC") that she has an "open complaint against [d]efendants, " but does not describe the basis for the complaint. Id., ¶ 105. Plaintiff also alleges that another city agency, the San Francisco Housing Authority ("SFHA"), has on record plaintiff's statement to the SFHA inspector that Parkmerced "would not pay for grab bars." Id., ¶ 83.

Turning to category (3), on August 10, 2012, plaintiff declared her candidacy for District 7 Supervisor on the San Francisco Board of Supervisors. Id . ¶ 123. Plaintiff voted for herself in the November 6, 2012 election. Id., ¶¶ 125-26. Plaintiff alleges that during the vote counting on November 7, 2013, there was a power outage at the San Francisco City Hall, and that a "false fire alarm" was triggered. Id., ¶ 128. Plaintiff asserts that she "does not know what occurred to the vote she cast for herself in the [e]lection after she cast her vote." Id., ¶ 130. Norman Yee was declared the winner of the District 7 Supervisor seat, while plaintiff placed eighth out of nine candidates. Id . ¶ 136; Id . Ex. 2. Subsequently, plaintiff obtained three election reports: (1) the Final Certified Summary Report issued by the City Department of Elections, which indicates that plaintiff received 716 votes out of 31, 334; (2) a tally published on the website westideobserver.com, showing that she received 719 out of 31, 385 votes; and (3) a report posted on the website wikipedia.org, which states that plaintiff won 716 of the 31, 351 total votes, and 719 "ranked-choice" votes.[1] Id . ¶¶ 136-40; see also id. Ex. 3; id. Ex. 4. Plaintiff asserts that she was deprived of her right to vote, as well as of the right to have her vote "counted equally with the vote of any other person who voted in the election, " because she does not know what happened to the vote she cast, and because "[d]efendants may have discarded" her vote, "thereby minimizing or potentially canceling out her ability to elect herself in the [e]lection." Id., ¶¶ 130-34. Although it is not entirely clear in the complaint, these allegations seem to be proffered as support for plaintiff's deprivation of civil rights claim against the City defendants.

B. Procedural Background

Along with her complaint, on January 4, 2013, plaintiff filed an application to proceed in forma pauperis ("IFP") and an application for a temporary restraining order ("TRO") enjoining the swearing in of Norman Yee as the representative of District 7 on the San Francisco Board of Supervisors. Dkt. 3. Plaintiff's IFP application was granted on January 7, 2013. Dkt. 5. The court held a hearing on the TRO application on January 8, 2013, and the request was denied, based on the lack of factual allegations supporting plaintiff's claims. Dkt. 11. The court then scheduled a case management conference ("CMC"), which was continued at plaintiff's request to May 30, 2013. Plaintiff did not file a case management statement, and did not appear at the CMC. However, counsel for the Parkmerced defendants did appear, and informed the court that plaintiff's complaint in this case may be duplicative of a previous action filed by plaintiff in this court. See Gavin v. Parkmerced, No. 12-5864 RS (N.D. Cal. 2013) (filed Nov. 25, 2012; and dismissed Apr. 29, 2013). Accordingly, the court ordered plaintiff to show cause why the case should not be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41, and to show that the instant case involves issues that were not already litigated in her previous suit against the Parkmerced defendants. Dkt. 17. A hearing on the matter was scheduled for June 27, 2013. Plaintiff also filed a motion to change venue to San Francisco, which the court decided to include as part of the June 27 hearing.

On June 24, 2013, the Parkmerced defendants filed a response to the order to show cause ("OSC"), explaining that the current claims against them (i.e., the claims arising out of category (1) above) are identical to the ones previously dismissed with prejudice by the Hon. Richard Seeborg in Gavin v. Parkmerced. Plaintiff did not file a response to the Parkmerced defendants' OSC response, and did not appear at the June 27, 2013 hearing as ordered. After the hearing, the court agreed with the Parkmerced defendants that plaintiff's claims against them are barred as duplicative, and dismissed with prejudice all claims pertaining to the Parkmerced defendants. Dkt. 30. Because plaintiff did not appear at the hearing, the court also denied her motion for change of venue. Id . Additionally, the court noted in a written order that the City defendants had filed the instant motion to dismiss for (1) failure to state a claim, and (2) failure to comply with the California Tort Claims Act[2], and that a hearing on that motion would be held on July 24, 2013. The court stated that plaintiff's appearance at the July 24 hearing was mandatory, and that plaintiff's non-compliance with the order would constitute grounds for dismissal for failure to prosecute.

Plaintiff did not file an opposition to the City defendants' motion to dismiss. Plaintiff also did not appear at the hearing scheduled for 9:00am on July 24, 2013, despite the court's warning that her non-appearance would warrant dismissal for failure to prosecute. Instead, at 11:43 am on July 24, 2013, Gavin filed a ...


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