Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dorsey v. Kreep

United States District Court, S.D. California

November 13, 2019

GARY KREEP, Defendant, LEAVITT INVESTMENT CO., Real Party in Interest.



         Pro se Plaintiffs Wesley C. Dorsey, Jr. and Margarete S. Dorsey (“Plaintiffs”) filed a Complaint against Defendant Judge Gary Kreep (“Defendant Judge Kreep”) alleging fraud on the court and violation of the Due Process Clause of the Fourteenth Amendment. (Doc. No. 1.) Plaintiffs have not paid the $400 filing fee required to commence this action, but instead have filed Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) For the reasons set forth below, the Court DISMISSES Plaintiffs' Complaint WITH PREJUDICE and DENIES AS MOOT Plaintiffs' IFP Motions.

         I. Sua Sponte Screening Under 28 U.S.C. § 1915(e)

         A. Standard of Review

         Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the Court if it finds the complaint is 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[.]”). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         B. Factual Background and Plaintiffs' Allegations

         In 2015, Leavitt Investment Company (“Leavitt”) filed an unlawful detainer action against Plaintiffs in the Superior Court for the County of San Diego. (Doc. No. 1 at 4) (citing Leavitt Investment Company v. Dorsey, Case No. 37-2015-00038520-CL-UD-CTL). Defendant Judge Kreep presided over Plaintiffs' unlawful detainer trial. (Id. at 5.) A key issue at trial was whether the notice Leavitt provided was proper. (See Id. at 5-8.) On this issue, Plaintiff Wesley C. Dorsey, Jr. testified, “I received three-day notices. I continued to make payments. I continued to receive three-day notices up until November 10th.” (Id. at 5.) What happened next is the focus of Plaintiffs' Complaint. (See id.) Based on Mr. Dorsey's testimony, Defendant Judge Kreep made an implied finding of fact that Mr. Dorsey admitted to receiving notice, thus curing any alleged defect in service. (Id. at 5, 7-8.) Plaintiffs allege that Defendant Judge Kreep misconstrued Mr. Dorsey's testimony. (Id. at 5.) Specifically, Plaintiffs allege that Mr. Dorsey's testimony regarding the “November 10th” date was in reference to the date that Leavitt returned Plaintiffs' uncashed rent check via certified mail, not the date that Mr. Dorsey received the three-day notice. (Id.) After trial, judgment was entered for Leavitt, Plaintiffs' lease was forfeited, and a writ of possession was issued and effected on March 14, 2016. (Id.)

         Plaintiffs filed two motions for a new trial, both of which were denied. (Id. at 6.) In his denial of Plaintiffs' renewed motion for a new trial, Defendant Judge Kreep stated that Plaintiffs waived any objection to the service of the three-day notice by failing to object at trial. (Id.) Plaintiffs appeared ex parte on December 5, 2016 to argue the point further. (Id.) Defendant Judge Kreep denied Plaintiffs' ex parte application. (Id. at 6-7.)

         Plaintiffs appealed Defendant Judge Kreep's judgment to the Appellate Division of the Superior Court for the County of San Diego. (Id. at 4, 6.) The Appellate Division affirmed. (Id. at 7.) On February 29, 2017, Plaintiffs filed a petition for rehearing. (Id.) On March 2, 2017, the Appellate Division issued a modified statement of decision denying the petition for rehearing and reaffirming their prior ruling. (Id. at 8.)

         Plaintiffs then filed a Complaint in this Court. (Doc. No. 1.) Plaintiffs' Complaint alleges Defendant Judge Kreep committed fraud on the court and violated Plaintiffs' due process rights when, at Plaintiffs' renewed motion for new trial and ex parte hearing, he failed to advise Plaintiffs that he had made an implied finding of fact that Mr. Dorsey's testimony constituted an admission that he had received notice. (Id. at 10-14.)

         Plaintiffs' Complaint asks this Court to (1) declare Defendant Judge Kreep's judgment void for fraud on the court, (2) dismiss the unlawful detainer action against Plaintiffs with prejudice, and (3) direct the San Diego Superior Court to seal the records from Plaintiffs' unlawful detainer case. (Id. at 14-15.) In the alternative, Plaintiffs request that this Court require the San Diego Superior Court to grant Plaintiffs a new trial. (Id. at 15.)

         C. The Court Does Not Have Jurisdiction over Plaintiffs' Claims

         District courts lack subject matter jurisdiction to review appeals from state court judgments. Rooker v. Fid. Tr. Co., 263 U.S. 413, 415-16 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 (1983). Accordingly, lower federal courts cannot adjudicate actions brought by “state-court losers” seeking relief from “state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 546 U.S. 459, 460 (2006) (quoting Exxon Mobile Corp. v. Saudi Basic Industries, Corp., 544 U.S. 280, 284 (2005)). The Rooker-Feldman doctrine precludes a federal district court from exercising jurisdiction over general constitutional challenges that are “inextricably intertwined” with claims asserted in state court. Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d 987, 992 (9th Cir. 2002) (quoting Feldman, 460 U.S. at 486 n.16). “Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined.” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).

         Here, although Plaintiffs state two causes of action against Defendant Judge Kreep, Plaintiffs are essentially arguing against the judgment he rendered in their state unlawful detainer action. (See generally Doc. No. 1.) For instance, in their Complaint, Plaintiffs state the actions that allegedly violated their rights occurred during two hearings during their unlawful detainer case. (Id.) If this Court were to declare that Defendant Judge Kreep violated Plaintiffs' rights at these hearings by not advising them that Mr. Dorsey's testimony amounted to an admission that he received notice, this Court would essentially be reversing Defendant Judge Kreep's state court judgment. Thus, Plaintiffs' claims in this Court are ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.