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Cunningham v. Singer

United States District Court, N.D. California

January 8, 2015

ARCHIBALD CUNNINGHAM, Plaintiff,
v.
KEVIN SINGER, JOHN SCOTT MCKAY, MICHAEL COOMBS, TAMARA WOODS, DONALD EVANS QUIDACHAY, LILLIAN SING, MING LEE, T. MICHAEL YUEN, CANTIL SAKAUYE, ANTHONY KLINE, JAMES RICHMOND, RECEIVER SPECIALISTS, and A. JAMES ROBERTSON, II, Defendants.

ORDER RE DEFENDANTS' MOTIONS TO DISMISS, DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT, DEFENDANTS' MOTION TO EXPUNGE LIS PENDENS, PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT, AND PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this action, defendants Singer, McKay, Coombs, and Woods move to dismiss the operative complaint for failure to state a claim and for lack of subject-matter jurisdiction, to declare plaintiff a vexatious litigant, and to expunge lis pendens. Plaintiff moves for a preliminary injunction and moves to amend his complaint. To the extent stated below, defendants' motion to dismiss is GRANTED and the complaint is STRICKEN. Defendants' motion to declare plaintiff a vexatious litigant is GRANTED. Defendants' motion to expunge lis pendens is GRANTED. Plaintiff's motions for a preliminary injunction and to amend his complaint are DENIED.

STATEMENT

Plaintiff Archibald Cunningham is an attorney and member of the California bar who has previously been designated a vexatious litigant by the San Francisco Superior Court. Defendants are Michael Coombs and Tamara Woods (who formerly engaged in a tenancy in common agreement with plaintiff), Scott McKay, their lawyer, Kevin Singer, a court-appointed receiver, and several California state court judges and officers who have issued rulings against Cunningham.

This case arises from an underlying state court proceeding in which plaintiff sued defendants Coombs, Woods, and McKay for fraud, deceit, breach of contract, and declaratory relief. After a dispute arose relating to a tenancy in common agreement between the parties, defendant Coombs commenced an arbitration. After an arbitration award was issued, Cunningham appealed and lost in state court. He then filed a second state court action, collaterally attacking the judgment in the first action and suing the judges who issued the orders dismissing Cunningham's first case. When that was dismissed, Cunningham filed three appeals and was denied each time. He was then declared a vexatious litigant by the San Francisco Superior Court (First Amd. Compl. ¶¶ 14, 47-49).

Next, Cunningham filed a federal action alleging essentially the same claims. Archibald Cunningham v. John Scott McKay, et al., No. 13-cv-04627, 2014 WL 129645 (N.D.Cal. 2014) (Judge William Orrick). Judge Orrick dismissed Cunningham's claims, without leave to amend.

Now, Cunningham has filed this suit in federal court. He sues the same non-judicial defendants as he had in previous actions, along with several state court judges who adjudicated his prior claims. This latest claim relates to the efforts of a court-appointed receiver, who was appointed after the Cunningham's first unsuccessful state court action, to enforce a judgment of the court and sell Cunningham's condo.

The nub of Cunningham's latest complaint is that the receiver in the state court proceeding, Kevin Singer, who was appointed to sell defendant's condo under the state court judgment against Cunningham in 2011, practiced law without a license and thus violated plaintiff's constitutional and civil rights. After the state court appointed Singer as the receiver, Singer filed a motion with the state court, on his own behalf as receiver, seeking instructions from that court on moving forward with his duties. After a hearing in which Cunningham participated, the state court granted Singer a writ of possession. Plaintiff argues the filing of this motion constituted an unauthorized practice of law and violated his constitutional and civil rights. Plaintiff further alleges that the other defendants named in the complaint conspired with Singer to help him practice law without a license, and thus also violated his constitutional and civil rights (First Amd. Compl. ¶¶ 1-8, 57-66).

The operative complaint alleges the following eight claims: (1) violation of constitutional and civil rights under Section 1983 in relation to all defendants engaging in a conspiracy against plaintiff; (2) violation of plaintiff's constitutional rights and Section 1983 in relation to the underlying judgment of possession; (3) violation of Section 1983 also in relation to the underlying judgment and property; (4) violation of plaintiff's constitutional rights and Section 1983 against the judicial defendants for violating the separation of powers clause; (5) violation of plaintiff's constitutional rights and Section 1983 in relation to defendants allegedly allowing court receivers to practice law without a license; (6) wrongful eviction; (7) intentional infliction of emotional distress; and (8) declaratory and injunctive relief related to the above seven claims.

The short answer is that the state court system is perfectly capable of adjudicating the claims listed above and if the trial judge there errs in some manner, then it can be corrected on appeal. The present claims should have been submitted in state court. Federal court is not a super appellate court meant to supervise the conduct of the state court system. Nevertheless, this order will go through each of plaintiff's claims to show that they are meritless.

ANALYSIS

1. JUDICIAL NOTICE.

Defendants request judicial notice of Exhibits 1-32 and Exhibits A-F. Plaintiff has not opposed. Plaintiff requests judicial notice of Exhibits A-L. Many of these exhibits overlap. This order only relies on defendants' Exhibits 1-8, 11, 12, 14, and Exhibits A, B, E, and F. All of these are documents that have been publicly filed in state and federal court.

A court may judicially notice a fact that is not subject to reasonable dispute because it: "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned" FRE 201(b).

Accordingly, defendants' requests for judicial notice of Exhibits 1-8, 11, 12, 14, and Exhibits A, B, E, and F are GRANTED. Because this order need not consider any other documents for which defendants and plaintiff request judicial notice, those requests for judicial notice are DENIED AS MOOT.

2. PLAINTIFF'S CLAIMS.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Rule 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a ...


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