United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
motions are pending in this action, which are addressed
Defendant Carlena Tapella's motion to dismiss
plaintiff's complaint for lack of subject matter
jurisdiction and failure to state a claim pursuant to Federal
Rules of Civil Procedure (“Rule”) 12(b)(1) and
Rule 12(b)(6) or, alternatively, for a more definite
statement under Rule 12(e) (ECF No. 6);
Tapella's motion to strike under the anti-SLAPP
(Strategic Lawsuit Against Public Participation) provisions
set forth in California Civil Procedure Code section 425.16
(ECF No. 7);
Plaintiff's motions for injunctive relief (ECF Nos. 20
Plaintiff's motions to amend the complaint (ECF Nos. 23,
Tapella's motion to strike and/or dismiss plaintiff's
first and second amended complaints (ECF No. 26);
pending is the court's January 7, 2019 order directing
plaintiff to show cause why sanctions should not be imposed
for failure to timely respond to defendant Tapella's
motions to dismiss and to strike under California's
anti-SLAPP statute. ECF No. 11. For the following reasons,
the order to show cause is discharged and no sanctions are
imposed. Further, it is recommended that Tapella's motion
to dismiss be granted and the remaining motions be
Order to Show Cause
Tapella originally noticed for hearing on October 22, 2018,
her motions to dismiss and to strike under California's
anti-SLAPP statute. In violation of Local Rule 230(c),
plaintiff failed to timely respond to the motions.
Accordingly, the hearing on the motions was continued and
plaintiff was ordered to show cause why sanctions should not
be imposed for his failure to timely respond to the motions.
ECF No. 11. Plaintiff was also ordered to file an opposition
or statement of non-opposition to the pending motions.
response, plaintiff filed a document entitled “Cause of
Action, ” which contains additional factual allegations
related to plaintiff's claims. ECF No. 13.
Plaintiff's filing does not respond to the arguments
raised in Tapella's motion, nor does it show cause why
sanctions should not be imposed for his failure to file an
opposition or statement of non-opposition to the pending
motions. Id. Nevertheless, in light of
plaintiff's pro se status, the order to show cause is
discharged without the imposition of sanctions.
Defendant Tapella's Motion to Dismiss
action arises out of state court conservatorship proceedings
commenced by the Public Guardian of Sacramento County
(“Public Guardian”) seeking the appointment of a
conservator for Teruko Selck, plaintiff's mother. ECF No.
1. Plaintiff alleges that defendant County of Sacramento (the
“County”) obtained guardianship over his mother
and placed her in a care facility where she is not receiving
adequate medical care. Id. at 8. He also claims that
the County, through the appointed conservator, has withdrawn
money from Ms. Selck's bank accounts and prevented her
from transferring to plaintiff the deed of trust for her
home. Id. at 7. He further alleges that the County
unlawfully seized his family's assets and imprisoned him
and his mother against their will. Id.
court records reflect that in May 2018, the Public Guardian
filed a petition seeking to be appointed as the conservator
for Ms. Selck. ECF No. 6-4 at 2-12. Defendant Tapella was
appointed as counsel to represent Ms. Selck in the
conservatorship proceedings. Id. at 15-16. In July
2018, the state court granted the petition and appointed the
Public Guardian as conservator for Ms. Selck. Id. at
24-25. The state court also granted the conservator the power
to sell her personal property and home. Id.
Plaintiff, apparently dissatisfied with the outcome of the
state court proceedings, filed this action against the County
and Tapella, alleging claims styled as conversion of real
property, abuse in process, malicious prosecution, real
estate fraud, negligence, and malpractice. ECF No. 1 at 5, 9.
now moves to dismiss plaintiff's complaint for lack of
subject matter jurisdiction and ...