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Selck v. County of Sacramento

United States District Court, E.D. California

September 6, 2019

MORREY SELCK, Plaintiff,
v.
COUNTY OF SACRAMENTO; CARLENA TAPELLA, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Several motions are pending in this action, which are addressed herein[1]:

         1. 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);

         2. 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);

         3. Plaintiff's motions for injunctive relief (ECF Nos. 20 & 22);

         4. Plaintiff's motions to amend the complaint (ECF Nos. 23, 24, 33)[2];

         5. Tapella's motion to strike and/or dismiss plaintiff's first and second amended complaints (ECF No. 26);

         6. Also 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 denied.[3]

         I. Order to Show Cause

         Defendant 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.

         In 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.

         II. Defendant Tapella's Motion to Dismiss

         A. Background

         This 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.

         State 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.[4] 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.

         Tapella now moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction and ...


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