United States District Court, N.D. California
PATRICK A. MISSUD, Plaintiff,
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS AND DISMISSING
THE CASE WITH PREJUDICE RE: DKT. NOS. 32, 33, 35
C. SPERO Chief Magistrate Judge
April 14, 2015, Plaintiff Patrick A. Missud filed suit in
California Superior Court, County of San Francisco. He
eventually served the Complaint on Defendants the City and
County of San Francisco (the “City”), the San
Francisco Municipal Transportation Authority (SFMTA),
San Francisco City Attorney's Office, City Attorney
Dennis Herrera, SFMTA Board Member Tom Nolan, and Tegsco,
LLC, which does business under the name AutoReturn
(“AutoReturn”). Three motions are before the
Court: (1) a Motion to Dismiss the Complaint filed by the
City, City Attorney Herrera, and SFMTA Board Member Nolan
(collectively, the “City Defendants”); (2) a
Motion for Judgment on the Pleadings filed by AutoReturn; and
(3) a Motion for Summary Judgment filed by Missud. The Court
finds the motions suitable for resolution without oral
argument pursuant to Civil Local Rule 7-1(b). For the reasons
stated below, the City Defendants' Motion to Dismiss and
AutoReturn's Motion for Judgment are GRANTED.
Missud's Motion for Summary Judgment is DENIED as moot.
The case is DISMISSED WITH PREJUDICE.
has been declared a vexatious litigant and is the subject of
two prefiling review orders. See Missud v. S.F. Super.
Ct., No. 12-cv-3117-WHA, dkt. no. 74 (N.D. Cal. Sept.
24, 2012); Patrick Missud v. Nev., No.
11-cv-3567-EMC, dkt. no. 88 (N.D. Cal. Mar. 22, 2012). Those
orders bar him from filing complaints against D.R. Horton,
Inc. and any judicial entities without first obtaining leave
from the Court. See Missud v. Cal., No.
12-cv-5468-EMC, 2013 WL 450391, at *1 (N.D. Cal. Feb. 5,
2013) (hereinafter “Missud I”).
The instant action falls outside the scope of those prefiling
claims and allegations Missud asserts in this action are not
new, however. He has filed three prior actions involving
similar allegations, two in this District and another in the
California Superior Court, County of San Francisco (the
“Superior Court”). In each, he complains that the
defendants towed his cars illegally in retaliation for his
exposure of a far-reaching government conspiracy related to
the City's enforcement of the California Vehicle
Code. See Compl. at 5-13. The prior
actions (“Prior Actions”) are as follows: (1)
Missud I, case number 12-cv-5468-EMC (N.D. Cal.,
initiated Oct. 15, 2012); (2) Missud v. California,
case number CGC-14-537723 (S.F. Super. Ct., initiated Feb.
28, 2014) (hereinafter “Case
537723”); and (3) Missud v. California,
case number 14-cv-1503-EMC (N.D. Cal., initiated April 1,
2014) (hereinafter “Missud II”).
City Defendants request judicial notice of documents filed in
the Prior Actions. Because resolving this matter requires
consideration of the documents for which the City Defendants
request notice and other documents filed in those actions,
the Court begins by addressing judicial notice.
City Defendants request judicial notice of five public
records that they filed as exhibits in support of their
Motion to Dismiss. See City Defs.' Req. for
Judicial Notice, dkt. no. 34 (“RJN”) at 2, Exs.
A-E (dkt. nos. 34-1 to -5). Missud has not opposed or
otherwise responded to this request. The City Defendants seek
judicial notice of the following records:
first amended complaint that Missud filed in Missud
I. No. 12-cv-5468-EMC (N.D. Cal., filed Oct. 24, 2012,
dkt. no. 12); see also RJN, Ex. A.
order granting the defendants' motions to dismiss filed
in Missud I. No. 12-cv-5468-EMC (N.D. Cal., filed
Feb. 5, 2013, dkt. no. 70); see also RJN, Ex. B;
2013 WL 450391.
first amended complaint that Missud filed in Case 537723. No.
CGC-14-537723 (S.F. Super. Ct., filed Feb. 28, 2014); see
also RJN, Ex. C.
order granting the defendants' motion to dismiss and
remanding the plaintiff's state-law claims in Missud
II. No. 14-cv-1503-EMC (N.D. Cal., filed July 8, 2014,
dkt. no. 52); see also RJN, Ex. D; 2014 WL 3367953.
Superior Court's order sustaining the City's demurrer
to Missud's first amended complaint filed in Case 537723.
No. CGC-14-537723 (S.F. Super. Ct., filed Mar. 10, 2015);
see also RJN, Ex. E.
addition to the City Defendants' requests, Missud has
filed several requests for judicial notice in this action.
See dkt. nos. 5, 8, 10, 13, 29, 30, 36, 37. The
Court has also identified several documents from Missud's
prior actions that are relevant to the present matter.
Judicial Notice Analysis
Federal Rule of Evidence 201(b), the Court may take judicial
notice of “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.” Court filings and
judicial orders constitute government records that the Court
may notice to determine issues and claims that were
adjudicated in prior litigation. See Reyn's Pasta
Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th
Cir. 2006) (“We may take judicial notice of court
filings and other matters of public record” to
determine the issues that were litigated in other
proceedings”) (citing Burbank- Glendale-Pasadena
Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364
(9th Cir. 1998)).
City Defendants request judicial notice of five court
filings-two pleadings and three judicial orders-to support
their argument, which is described in greater detail below,
that Missud has advanced claims and allegations in prior
lawsuits against the City that are identical to the claims
and allegations he asserts against the City Defendants
presently. See RJN. These filings constitute matters
of public record that can be noticed under Rule 201(b)(2).
See Reyn's Pasta Bella, 442 F.3d at 746 n.6.
Accordingly, the Court grants the City Defendants'
request for judicial notice in its entirety.
Court is also permitted to take judicial notice of court
filings sua sponte. See Fed. R. Evid. 201(c)(1);
Reyn's Pasta Bella, 442 F.3d at 746 n.6;
Bank of N.Y. Mellon v. Hong Xuan Vo,
14-cv-05110-LHK, 2015 WL 662221, at *1 n.1 (N.D. Cal. Feb.
12, 2015). Several documents filed in the Prior Actions are
relevant to the present matter and fall within the ambit of
Rule 201(c)(1). Those documents are as follows:
1. The district court Summons issued for, inter
alia, AutoReturn in Missud I. No.
12-cv-5468-EMC (N.D. Cal., filed Oct. 31, 2012, dkt. no. 25).
2. The district court Order Re Service of Summons and
Complaint in Missud I. No. 12-cv-5468-EMC (N.D.
Cal., filed Dec. 11, 2012, dkt. no. 42).
3. The City's Motion to Dismiss Missud's Complaint in
Missud I. No. 12-cv-5468-EMC (N.D. Cal., filed Dec.
20, dkt. no. 45).
4. The district court's Final Judgment in Missud
I. No. 12-cv-5468-EMC (N.D. Cal., filed Jan. Feb. 5,
2013, dkt. no. 71).
5. Missud's Notice of Appeal to the Ninth Circuit Court
of Appeals in Missud I. No. 12-cv-5468-EMC (N.D.
Cal., filed Feb. 22, 2013, dkt. no. 89).
6. United States Supreme Court's Notice That Petition for
Writ of Certiorari Was Denied in Missud I. No.
12-cv-5468-EMC (N.D. Cal., filed Feb. 28, 2014, dkt. no.
7. The City's Notice of Removal filed in Missud
II. No. 14-cv-1503-EMC (N.D. Cal., filed April 1, 2014,
dkt. no. 1).
8. The City's Motion to Dismiss Missud's Complaint in
Missud II. No. 14-cv-1503-EMC (N.D. Cal., filed May
30, 2014, dkt. no. 31).
9. The City's Demurrer in Case 537723. No. 14-CGC-537723
(S.F. Super. Ct. filed Feb. 3, 2015).
10. The City's Memorandum of Points and Authorities in
Support of its Demurrer in Case 537723. No. 14-CGC-537723
(S.F. Super. Ct., filed Feb. 3, 2015).
11. Missud's Declaration Re Proof of Service in Case
537723. No. 14-CGC-537723 (S.F. Super. Ct., filed Feb. 17,
12. The Superior Court's Order After Hearing on Order to
Show Cause in Case 537723. No. 14-CGC-537723 (S.F. Super.
Ct., filed Feb. 23, 2016).
13. AutoReturn's Demurrer in Case 537723. No.
14-CGC-537723 (S.F. Super. Ct., filed Mar. 17, 2016).
14. AutoReturn's Memorandum of Points and Authorities in
Support of Its Demurrer in Case 537723. No. 14-CGC-537723
(S.F. Super. Ct., filed Mar. 17, 2016).
15. The Superior Court's Order on AutoReturn's
Demurrer in Case 537723. No. 14-CGC-537723 (S.F. Super. Ct.,
filed May 6, 2016).
16. The Superior Court's Order to Show Cause in Case
537723. No. 14-CGC-537723 (S.F. Super. Ct., filed May 6,
17. The Superior Court's Order After Hearing on Order to
Show Cause in Case 537723. No. 14-CGC-537723 (S.F. Super.
Ct., filed Sept. 7, 2016).
18. The Superior Court's Final Judgment in Case 537723.
No. 14-CGC-537723 (S.F. Super. Ct., filed Sept. 7, 2016).
Court takes judicial notice of these documents under Rule
201(b)(2). As explained below, the City Defendants and
AutoReturn are entitled to dismissal. Missud's requests
for judicial notice are irrelevant to the Court's
analysis of that determination. Therefore, the Court denies
Missud's requests for judicial notice.
The Prior Actions
Missud I - the First Federal Action
October 15, 2012, Missud initiated Missud I. Nine
days later, Missud amended his complaint in that action,
asserting various claims against several named defendants,
among them the City, SFMTA, and AutoReturn. See RJN,
Ex. A; see also Missud v. I, 2013 WL 450391, at
*1-4. There, as here, Missud asserted a 42 U.S.C. § 1983
claim against the City and AutoReturn. The presiding judge,
Judge Chen, described that § 1983 claim and its
underlying allegations as follows:
SFMTA issues multiple citations in rapid succession to cars
with expired registrations, and contracts with AutoReturn to
tow the cars once [those cars] have accumulated five
citations. These cars are then sold at weekly vehicle
auctions. [Missud] alleges that this practice constitutes
“an illegal taking under color of law or without
notice” and “a major violation of the takings
clause.” He further alleges that the City of San
Francisco illegally enforces tickets that are defective
because they do not list the last four digits of the
car's Vehicle Identification Number.
Missud I, 2013 WL 450391, at *1; see also
RJN, Ex. A at 6-8. The City moved to dismiss the § 1983
claim under Federal Rule of Civil Procedure 12(b)(6). See
Missud I, 2013 WL 450391, at *1; see also Missud
I, City's Mot. to Dismiss, dkt. no. 45.
order issued on February 5, 2013, the district court granted
the City's motion with prejudice. See Missud I,
2013 WL 450391, at *8. The district court held that Missud
failed to raise a “cognizable claim under the Takings
Clause of the Fifth Amendment because his allegations concern
actions taken under the City's police powers.”
Id. at *4. The district court reasoned that
“[t]owing cars that have accumulated an excessive
number of parking tickets is an exercise of police power, and
not a taking for public purposes within the meaning of the
Takings Clause.” Id. (citations omitted).
district court also held that Missud failed to establish that
the City violated his procedural due process rights. The
court reasoned that, even accepting as true Missud's
allegation of vehicle citations “issued in rapid
succession, ” the City's practice still provided
“sufficient notice to meet the requirements of due
process.” Id. at *5. The court also explained
that Missud failed to raise a viable due process claim
regarding the City's alleged issuance of “defective
tickets” because due process in the context of a
parking ticket requires “notice of the charges and the
procedures for challenging the ticket, ” and, according
to Missud's allegations, he had in fact
“successfully challenged these tickets.”
granting the City's motion, the district court issued
final judgment against Missud in accordance with its order.
See Missud I, Judgment, dkt. no. 71; see also
Missud II, 2013 WL 450391, at *8. Missud appealed the
district court's judgment to the Ninth Circuit, which
affirmed, and then to the Supreme Court, which denied
certiorari. See Missud I, dkt. nos. 185-189.
Initiation and Removal of Case 537723
February 28, 2014, the day that the Supreme Court denied
certiorari in Missud I, Missud filed a complaint in
the Superior Court and initiated Case 537723. Missud amended
that complaint on March 3, 2014, naming several defendants,
among them the City, SFMTA, SFMTA Board Member Nolan, and
AutoReturn. See RJN, Ex. C at 1. In the amended
complaint, Missud purported to represent a class of
plaintiffs and asserted five causes of action: (1)
“Fraud targeting Missud and the class”; (2)
“Conspiracy to Defraud Missud and the class”; (3)
“Misrepresentations made to Missud and the
class”; (4) “Deceptive Trade Practices targeting
Missud and the class”; and (5) “Intentional
Deprivation of 42 USC §1983 Civil Rights as to Missud
and the class.” See RJN, Ex. C at 8-9, 20.
Missud's causes of action in the amended complaint seem
to refer to a section entitled Points and
Authorities where he claimed that the defendants
violated each of five listed statutes. See Id. at
12-15, 20. The listed statutes are as follows: (1)
“California Civil Code §3294: Fraud”; (2)
“California Civil Code §1770: Misrepresentation
and Deceit”; (3) “California Business and
Professions Code §17200 et seq: Unfair
Competition”; (4) “California Government Code
§12650 et seq: False Claims Act”; and (5)
“STANDING TO SUE IN STATE COURT UNDER 42 USC
§1983: Civil Action for Deprivation of Rights.”
Id. at 12-15. Shortly after Missud filed the amended
complaint, the City removed the case to this
District. See Missud II, Not. of Removal,
dkt. no. 1. The removed action became Case No. 14-1503
(Missud II) and was assigned to Judge Chen.
Missud II - the Second Federal Action
the City removed Case 537723, it moved to dismiss
Missud's amended complaint. See Missud II, 2014
WL 3367953, at *1; see also Missud II, City's
Mot. to Dismiss, dkt. no. 31. On July 8, 2014, the district
court granted the City's motion and dismissed
Missud's 42 U.S.C. § 1983 claim with prejudice.
See Missud II, 2014 WL 3367953, at *1. The court
declined to exercise supplemental jurisdiction over his
state-law claims, remanding those claims to state court. In
the order granting the City's motion to dismiss, the
district court described the allegations that Missud asserted
in the amended complaint as follows:
[Missud] alleges that the San Francisco Police Department and
Municipal Transit Authority issue citations for
“expired tabs” (presumably for not having up to
date registration) and that after the vehicle has accumulated
five such citations, the City of San Francisco and Defendant
Auto-Return tow the car and store it, imposing “hefty
fees” on the vehicle owner. [Missud] alleges that he
received five “expired tabs” tickets in
“rabid succession” [and] that part of
the “racketeering scheme” is the fact that the
City and County of San Francisco have “[i]llegally
demand[ed] ‘holds' on DMV re-registration so that
it$ color-of-law citations are first paid.” Another
alleged racketeering scheme is that the City and County of
San Francisco attempts to “enforce unenforceable,
defective tickets” that do not include the last four
digits of the vehicle's Vehicle Identification Number
(“VIN”). Plaintiff alleges he received a number
of citations which omitted the vehicle's VIN, and yet the
“City insisted on their invalidity.”
Plaintiff's additional allegations of wrongdoing all
revolve around these alleged schemes related to traffic
enforcement and vehicle towing.
Id. at *1; see also RJN, Ex. C at 16-19.
district court held that Missud's § 1983 claim was
barred by the federal doctrine of collateral estoppel because
judgment had already been entered on that claim in Missud
I. See Missud II, 2014 WL 3367953, at *2-4. The
court analyzed this issue under the three-part test for
collateral estoppel, which requires that “(1) the issue
at stake must be identical to the one alleged in the prior
litigation; (2) the issue must have been actually litigated
by the party against whom preclusion is asserted in the prior
litigation; and (3) the determination of the issue in the
prior litigation must have been a critical and necessary part
of the judgment in the earlier action.” Id.
(citing McQuillion v. Schwarzenegger, 369 F.3d 1091,
1096 (9th Cir. 2004)). The court found that all three
requirements were met. Id.
the district court found that the issues raised by the §
1983 claims in Missud I and Missud II were
essentially identical because both were based on the same
alleged racketeering scheme. Id. at 2-3. The court
acknowledged that in Missud II, Missud included
allegations about more recent incidents of unlawful towings
and citations, but found that those incidents were part of
the same scheme that Missud alleged in Missud I.
Id. at *3. Second, the court found that Missud, as
the party who litigated the issues in the prior action, was
subject to the doctrine of collateral estoppel. Id.
at 3. Third, the court found that the issues underlying the
§ 1983 claim in Missud I were actually
litigated in that action and formed an essential and
necessary part of the judgment. Id. at 3. Finding
that Missud's only federal claim was barred under the
doctrine of collateral estoppel, the district court remanded
the case to the Superior Court for further proceedings on
Missud's state-law claims. Id. at 4.
Case 537723 After Remand
the district court remanded Missud II to the
Superior Court, Case 537723 resumed. On February 3, 2015, the
City filed a demurrer to Missud's amended complaint,
asserting that Missud's claims against it failed because
Missud did not file a pre-litigation claim as required under
California Government Code section 945.4. See Case
537723, City's Demurrer, filed Feb. 3, 2015; City's
Mem. of P. & A., filed Feb. 3, 2015. The City further
asserted that Missud failed to allege any valid claims.
Id. The Superior Court agreed with the City as to
the section 945.4 requirement, holding that where a plaintiff
seeks money damages from a local public entity, the timely
filing of a written claim with the proper officer or body
prior to initiating litigation is an element of a valid cause
of action. See RJN, Ex. E. The Superior Court
sustained the City's demurrer on that basis without
addressing whether Missud had alleged valid claims. See
Id. It further found that Missud could not cure the
deficiency because he had offered insufficient evidence to
substantiate his assertions that he had presented claims
prior to litigation and filing such claims after a
lawsuit is initiated does not meet the pre-litigation
presentment requirements. Id. Therefore, the
Superior Court sustained the demurrer without leave to amend
on March 10, 2015. RJN, Ex. E.
February 23, 2016, the Superior Court also dismissed with
prejudice Defendants State of California, Tom Nolan, San
Francisco Trial Courts, Cynthia Lee, Xerox Solutions, LDC
Collections and David Cummins on the basis that Missud had
failed to serve them properly even though the case had been
filed almost two years earlier. See Case 537723,
Order After Hearing, filed Feb. 23, 2016. The Superior Court
found that dismissal with prejudice was an appropriate
sanction because nothing short of terminating sanctions was
likely to deter Missud from future similar conduct.
Id. It explained:
[Missud's] conduct has been willful, he has engaged in
similar conduct in other litigation, he is trained in the
law, the conduct represents a pattern of activity, and he
demonstrates obvious contempt for the rule of law. . . . The
culmination of sham pleadings, dilatory conduct and
unrepentant behavior leads to the conclusion that terminating
sanctions are appropriate.
Id. (citing Cal. Code Civ. P. § 583.150).
March 17, 2016, remaining defendants AutoReturn and John
Wicker (referred to here collectively as AutoReturn) filed a
demurrer to Missud's amended complaint. See Case
537723, AutoReturn's Demurrer, filed Mar. 17, 2016;
AutoReturn's Mem. of P. & A., filed Mar. 17, 2016. In
the demurrer, AutoReturn challenged Missud's claim under
California Civil Code section 3294 on the basis that it does
not constitute a cause of action. Id. It further
asserted that Missud failed to allege facts sufficient to
state valid claims under: 1) the Consumer Legal Remedies Act,
California Civil Code section 1770 (“CLRA”); 2)
California's Unfair Competition Law, California Business
& Professions Code section 17200 et seq.
(“UCL”); and 3) California's False Claims
Act, California Government Code sections 12650 et
seq., (“CFCA”). AutoReturn further argued
that the defects in Missud's complaint could not be fixed
by amendment and therefore, that Missud should not be
permitted to file an amended complaint. The court held a
hearing on the demurrer on April 29, 2016 and subsequently
sustained the ...