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Missud v. City and County of San Francisco

United States District Court, N.D. California

March 21, 2017

PATRICK A. MISSUD, Plaintiff,
v.
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

          JOSEPH C. SPERO Chief Magistrate Judge

         I. INTRODUCTION

         On 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), [1]the 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.[2]

         II. BACKGROUND

         Missud 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 review orders.

         The 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.[3] 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”);[4] and (3) Missud v. California, case number 14-cv-1503-EMC (N.D. Cal., initiated April 1, 2014) (hereinafter “Missud II”).

         The 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.

         A. Judicial Notice

         1. The Requests

         The 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:

         1. The 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.

         2. The 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.

         3. The 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.

         4. The 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.

         5. The 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.

         In 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.

         2. Judicial Notice Analysis

         Under 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)).

         The 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.

         The 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. 189).
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, 2016).
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, 2016).
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).

         The 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.

         B. The Prior Actions

         1. Missud I - the First Federal Action

         On 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.[5] 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.

         In an 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).

         The 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.” Id.

         After 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.

         2. Initiation and Removal of Case 537723

         On 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.[6] 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.

         3. Missud II - the Second Federal Action

         After 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.

         The 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.

         First, 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.

         4. Case 537723 After Remand

         After 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.

         On 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).

         On 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 ...


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