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Dorsey v. Kreep

United States District Court, S.D. California

March 28, 2018

WESLEY C. DORSEY, JR., MARGARETE S. DORSEY, Plaintiff,
v.
GARY KREEP, KERRY WELLS, CHARLES R. GILL, GALE E.KANESHIRO, Defendants.

          ORDER

          Hon. William Q. Hayes United States District Court.

         The 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.

         I. Background

         On May 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).

         II. Allegations of the First Amended Complaint

         In late 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.

         Under 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 residence;
(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.

         On 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.

         On 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 Procedure[1]applied 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.

         On 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.

         On 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. ΒΆ 54. The Dorseys do not allege ...


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