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Hettinga v. Loumena

United States District Court, N.D. California, San Jose Division

September 30, 2014

TIMOTHY P. LOUMENA, et al., Defendants.


RONALD M. WHYTE, District Judge.

All defendants move to dismiss plaintiff Wylmina Hettinga's first amended complaint. Dkt. Nos. 29, 38, 41, 44, 51, 62; see Dkt. No. 7 (first amended complaint, "FAC"). Defendants Jeanie O'Connor and Chicago Title Company also request that the court declare plaintiff to be a vexatious litigant. Dkt. No. 53, at 14-16. Plaintiff brings a "motion for stay, " which the court interprets as a motion for a preliminary injunction. Dkt. Nos. 87, 100. For the reasons explained below, the court GRANTS defendants' motions to dismiss without prejudice, GRANTS defendants Chicago Title Company and Jeanie O'Connor's motion to declare plaintiff to be a vexatious litigant, GRANTS an injunction for pre-filing review of plaintiff's future filings, and DENIES plaintiff's motion for stay.


This case arises out of plaintiff and defendant Timothy Loumena's state divorce case, which has been ongoing since 2005. Plaintiff, who is pro se, alleges in the FAC that "[o]n February 27, 2013, [defendant] Kennedy, purporting to be acting under the laws of the State of California, fraudulently claimed that Wylmina E. Hettinga, trustee of The Loumena 2000 Revocable Trust Agreement, established the 6th of December, 2000, Wylmina E [sic] Hettinga as an individual, and Pacific Almaden Investments, LLC a California Limited Liability Company had, for a valuable consideration, receipt of which was acknowledged, granted the Property to Defendants." FAC ¶ 21. The FAC further states that plaintiff "did not receive any such valuable consideration, did not acknowledge receipt of any such valuable consideration, and did not grant [Hettinga and Loumena's former family residence (the "property")] to Defendants." Id. ¶ 22. According to the FAC, the property was sold. Id. ¶ 23. It appears from Exhibit B to the FAC that the proceeds were divided among various creditors. Id. Ex. B.

Documents from the state court divorce case reveal that the state court repeatedly ordered that the property be sold, with the proceeds being placed in a trust account.[1] See Dkt. No. 31. In an order filed January 23, 2013, the state court wrote:

This Court previously ordered this property sold on 1 September 2011 (order filed 28 March 2012). Under that Order, Respondent Timothy Loumena was to select the realtor, both parties were to sign any and all necessary paperwork, and the net proceeds were to be placed into an interest-bearing trust account. The Court reiterates and modifies that Order as follows:
(a) The property shall be listed and sold forthwith. The listing agent shall be the individual named on the record by Mr. Loumena - Scott Raley of Customer Service Realty. Mr. Loumena shall be the sole lister of the property.
(b) Mr. Loumena shall work with the realtor to prepare the property for sale and make decisions concerning the appropriate list price, what to do with offers received, and any other necessary elements of the sales process.... As to any documents requiring any signatures from Ms. Hettinga, ... Mr. Loumena shall provide them, and those parties shall promptly sign and return the documents to Mr. Loumena. If three (3) days after presenting the documents, Mr. Loumena has not received the necessary signatures, he may bring the documents to Department 83 for the Court Clerk to sign as elisor on behalf of Ms. Hettinga, ....

Id. Ex. C. It appears that, pursuant to the January 23, 2013 state court order, Mr. Loumena was required to have the court clerk, defendant Kennedy, sign as elisor on behalf of plaintiff.

Plaintiff brings a single claim in the FAC, for violation of her civil rights under 42 U.S.C. § 1983. Plaintiff's allegations arise directly out of the sale of the property in her divorce case. Specifically, plaintiff asserts that the forced sale of the property violated her Fourth Amendment rights, and her rights under the Takings Clause of the Fifth and Fourteenth Amendments. The FAC names as defendants Timothy Loumena, plaintiff's ex-husband; Pamela Kennedy, the state court clerk; the State of California; Walter Hammon, the attorney appointed by the state court to represent plaintiff's children; Travis Krepelka, Loumena's attorney; Scott Raley, the court-appointed real estate listing agent; Chicago Title Company, which was involved in the sale of the property; and Jeanie O'Connor, who apparently has some relationship with Chicago Title Company.


A. Legal Standard

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering whether the complaint is sufficient to state a claim, the Court must accept as true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the Court need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference that ...

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