United States District Court, S.D. California
WESLEY C. DORSEY, JR., MARGARETE S. DORSEY, Plaintiff,
GARY KREEP, KERRY WELLS, CHARLES R. GILL, GALE E.KANESHIRO, Defendants.
William Q. Hayes United States District Court.
matter before the Court is the Motion to Dismiss
Plaintiffs' First Amended Complaint with Prejudice (ECF
No. 14) filed by Defendants Judge Gary Kreep, Judge Kerry
Wells, Judge Charles Gill, and Judge Gale Kaneshiro.
1, 2017, Plaintiffs Wesley C. Dorsey, Jr. and Margarete S.
Dorsey (the “Dorseys”) initiated this action by
filing the Complaint (ECF No. 1) against Defendants Judge
Gary Kreep, Judge Kerry Wells, Judge Charles Gill, and Judge
Gale Kaneshiro. On September 28, 2017, the Dorseys filed the
First Amended Complaint (FAC) (the “FAC”). The
FAC brings claims under 42 U.S.C. § 1983 alleging
violations of the Dorseys' Fourteenth Amendment rights to
due process and equal protection. Id. On October 12,
2017, Defendants filed the Motion to Dismiss'
Plaintiffs' First Amended Complaint with Prejudice (ECF
No. 14). On October 19, 2017, the Dorseys filed an Opposition
to the Motion to Dismiss. (ECF No. 15). On November 13, 2017,
Defendants filed a Reply to the Opposition to the Motion to
Dismiss. (ECF No. 16).
Allegations of the First Amended Complaint
2015, the Dorseys were renting an apartment from the Leavitt
Investment Company (“Leavitt”). FAC Ex. 4, ECF
No. 8, at 37. The Dorseys and Ms. Cuevas, Leavitt's
property manager, entered into an agreement after the Dorseys
encountered financial hardship. Id. at 43. Under the
terms of that agreement, the Dorseys were permitted to pay
partial rent but Leavitt had the right to demand payment of
the full amount due at any time. Id. at 45.
California law, Leavitt could file a complaint to evict the
Dorseys three days after serving the Dorseys with a notice of
eviction (a “three-day notice”). Cal. Civ. Proc.
Code § 1161. California Civil Procedure Code § 1162
provides that three-day notices may be served
(1) By delivering a copy to the tenant personally;
(2) If he or she is absent from his or her place of
residence, and from his or her usual place of business, by
leaving a copy with some person of suitable age and
discretion at either place, and sending a copy through the
mail addressed to the tenant at his or her place of
(3) If such place of residence and business cannot be
ascertained, or a person of suitable age or discretion there
cannot be found, then by affixing a copy in a conspicuous
place on the property, and also delivering a copy to a person
there residing, if such person can be found; and also sending
a copy through the mail addressed to the tenant at the place
where the property is situated.
Cal. Civ. Proc. Code § 1162.
November 10, 2015, Ms. Cuevas posted and mailed a three-day
notice to the Dorsey's place of residence. FAC at ¶
20; FAC Ex. 2, ECF No. 8, at 21.
November 17, 2015, the Leavitt Investment Company
(“Leavitt”) filed an unlawful detainer complaint
against the Dorseys in the Superior Court for the County of
San Diego. FAC at ¶ 25 (citing Leavitt Investment
Company v. Dorsey, No. 37-2015- 00038520-Cl-UD-CTL
(hereinafter the “Detainer Action”)). The
Detainer Action was assigned to Defendant Judge Kreep. FAC
Ex. 4, ECF No. 8, at 33. At trial, the Dorseys argued that
Leavitt's complaint was filed prematurely because the
three-day notice was posted and mailed on Tuesday, November
10, 2015, and the following day was Veterans Day, so only two
business days elapsed between the mailing and posting of the
three-day notice and the filing of the complaint on Tuesday,
November 17, 2015. Id. at 52:6-13. The Dorseys
argued a trial that Section 1013(a) of the California Code of
Civil Procedureapplied to extend the notice requirement
from three days to five days because the notice was mailed.
Id. at 52:14-27. At trial, Judge Kreep held that
Section 1013(a) only applied to post-litigation notices and
that the complaint was filed properly on November 17, 2015.
Id. at 54:6-13. On February 29, 2016, Judge Kreep
entered judgment against the Dorseys, which resulted in their
eviction from the property that they were then occupying. FAC
at ¶¶ 31-35. The Dorseys filed two motions for a
new trial, both of which were denied by Judge Kreep.
Id. ¶¶ 39-42.
March 11, 2016, the Dorseys appealed Judge Kreep's
judgment and denial of the motions for a new trial to the
Appellate Division of the Superior Court for the County of
San Diego. Id. ¶¶ 34-46. The Dorseys'
appeal was assigned to Defendants Judge Wells, Judge Gill,
and Judge Kaneshiro (the “Defendant Appellate
Judges”). Id. ¶ 34. On January 31, 2017,
the “Defendant Appellate Judges” issued a
Statement of Decision that rejected the Dorseys'
arguments on appeal and unanimously affirmed the judgment
entered by Judge Kreep. Id. ¶¶ 46, 50. In
their Statement of Decision, the Defendant Appellate Judges:
(1) declined to review the Dorseys' renewed motion for
new trial, holding that an order denying a motion for new
trial is not an appealable order; (2) held that Leavitt's
unlawful detainer complaint was timely filed after the
expiration of the three-day notice period; (3) held that
Cuevas's service by mail of the three-day notice was
proper; and (4) held that the Dorseys waived the argument
that there was no showing of reasonable diligence in
Cuevas's attempt at personal service by failing to object
to the admission of the notice at trial. Id.
February 9, 2017, the Dorseys filed a petition for rehearing.
Id. ¶ 47. On March 2, 2017, in its modified
decision, the Defendant Appellate Judges denied the petition
for rehearing. Id. ¶ 50. On March 13, 2017, the
Defendant Appellate Judges denied the Dorseys' petition
for transfer to the California Court of Appeals, Fourth
Appellate District, Division One. Id. ¶ 54. The
Dorseys do not allege ...