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Bauman v. Harbor View Home Owners Association

United States District Court, S.D. California

April 10, 2017

JORDANA BAUMAN, Plaintiff,
v.
HARBOR VIEW HOME OWNERS ASSOCIATION; CASTLE BRECKENRIDGE MANAGEMENT PARTNERS; JOHN C. KALAS; MARQUIS HUNTSMAN; SHERI WHITE-NEWTON; VLADY DMYTRENKO; EPSTEIN GRINNELL & HOWELL, INC.; DEBORAH ZUMWALT; and ELISA M. PEREZ, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS;GRANTING MOTION TO FILE UNDER SEAL; SUA SPONTE DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C.§ 1915(e)(2)

          HON. MICHAEL M. ANELLO United States District Judge.

         Plaintiff Jordana Bauman, proceeding pro se, has filed the instant action against Defendants Harbor View Home Owners Association, Castle Breckenridge Management Partners, John C. Kalas, Marquis Huntsman, Sheri White-Newton, Vlady Dmytrenko, Epstein Grinnell & Howell, Inc., Deborah Zumwalt, and Elisa M. Perez. See Doc. No. 1. Plaintiff also moves for leave to proceed in this action in forma pauperis ("IFP"), and moves to seal financial records and medical records that she attached to her motion to proceed IFP.

         Motion for Leave to Proceed IFP

         All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). Plaintiffs IFP application details her net monthly income and her monthly expenses. Based thereon, the Court concludes that Plaintiff should be allowed to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169F.3d 1176, 1177 (9th Cir. 1999). Plaintiffs submission demonstrates that she lacks the financial resources to pay the costs of commencing this action. Accordingly, the Court GRANTS Plaintiffs motion to proceed IFP, and, because of the sensitive nature of Plaintiff s medical and financial records, GRANTS Plaintiffs motion to seal. See A.B. ex rel. W.F.B. v. San Francisco Unified Sch. Dist, No. C 07-4738 PJH, 2007 WL 2900527, at *1 (N.D. Cal. Oct. 2, 2007).

         Screening Pursuant To 28 U.S.C. S 1915(E)(2)(B)

         1. Legal Standard

         When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and the Court must order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In addition, the Court has a duty to liberally construe a pro se plaintiffs pleadings. See Id. In giving liberal interpretation to apro se complaint, however, the court may not "supply essential elements of claims that were not initially pled." See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "enough facts to state a claim to relief that is plausible on its face." See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (citation omitted).

         2. Analysis

         Plaintiff alleges causes of action for willful violations of a bankruptcy stay and a violation of the Civil Rights Act, 42 U.S.C. § 1983.[1]

         i. Willful Violations of the Bankruptcy

         Stay "Once a debtor files for bankruptcy, the Bankruptcy Code imposes an automatic stay prohibiting creditors from attempting to collect pre-petition debts against the debtor." In re Dingley, No. 14-60055, 2017 WL 1208454, at *1 (9th Cir. Apr. 3, 2017); 11 U.S.C. § 362; In re Ozenne, 337 B.R. 214, 218-19 (B.A.P. 9th Cir. 2006) ("The filing of a petition for bankruptcy relief automatically stays both the continuation of proceedings against the debtor and the commencement of any act to obtain possession of, or enforce a lien against, property of the debtor or of the estate."). The Bankruptcy Code also "creates a statutory remedy for individual debtors who are injured by a violation of the automatic stay." See In re Bertuccio, 414 B.R. 604, 611 (Bankr. N.D. Cal. 2008); see 11 U.S.C. § 362(k)(1). Section 362(k)(1) states that "an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." 11 U.S.C.A. § 362(k)(1). "A party seeking damages for violation of the automatic stay must prove by a preponderance of the evidence that (1) a bankruptcy petition was filed; (2) the debtor is an individual; (3) the creditor received notice of the petition; (4) the creditor's actions were in willful violation of the stay; and (5) the debtor suffered damages." See In re Bertuccio, 414 B.R. at 611.

         Plaintiff alleges she filed a Chapter 13 bankruptcy petition on July 5, 2011, which commenced an automatic bankruptcy stay pursuant to 11 U.S.C. § 362. Plaintiff states that the bankruptcy court erroneously dismissed her bankruptcy action on September 10, 2012. Thereafter, Plaintiff alleges she appealed the bankruptcy court's order of dismissal to the United States District Court for the Southern District of California. According to Plaintiffs pleadings, on August 30, 2013, the district court determined that the bankruptcy court had violated Plaintiffs statutory and constitutional due process rights by failing to afford her notice and a hearing prior to dismissing her Chapter 13 petition, and thus, the bankruptcy court's order dismissing her case was void. See Compl. Exh. D. The district court vacated the dismissal and remanded the case to the bankruptcy court for further proceedings. See Compl. Exh. D. Plaintiff contends Defendants violated the automatic bankruptcy stay in the interim by filing a lawsuit against her in December 2012 in which they sought to foreclose on her home.

         Typically, an automatic stay terminates upon dismissal of a bankruptcy case, and while reinstatement of the bankruptcy case restores the automatic stay, it does not do so retroactively. See 11 U.S.C. § 362(c); In re Sewell,345 B.R. 174, 179 (B.A.P. 9th Cir. 2006); In re Williams, No. A12-00620-GS, 2013 WL 1089262, at *2 (Bankr. D. Alaska Mar. 13, 2013) ("The reinstated stay ... does not generally attach retroactively to void acts taken in the gap period between dismissal and reinstatement."). However, where a court finds that a prior order dismissing a bankruptcy case is "void for lack of due process, " a "stay [is deemed to have been] continuously in effect from the time of the filing of the petition." See In re Krueger,88 B.R. 238, 241 (B.A.P. 9th Cir. 1988); In re Slyman, 234 F.3d 1081, 1087 (9th Cir. 2000); In re Sillman, No. 2:14-CV-00587-MCE, 2015 WL 1291427, at *4 (E.D. Cal. ...


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