Pacific Almaden Investments, LLC v. Hettinga et al

Filing 59

ORDER by Judge Ronald M. Whyte granting 34 Motion to Dismiss; granting 38 Motion to Withdraw as Attorney. Attorney Jaime Nichole Harris and Jamie N. Harris terminated; granting 39 Motion to Dismiss; denying 48 Motion for Extension of Time to File Response/Reply ; granting 26 Motion to Dismiss; granting 30 Motion to Dismiss (rmwlc1, COURT STAFF) (Filed on 10/1/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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PACIFIC ALMADEN INVESTMENTS, LLC,
Plaintiff,

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Case No. C-14-1631-RMW
ORDER GRANTING MOTIONS TO
DISMISS AND GRANTING MOTION
TO WITHDRAW

v.
WYLMINA E. HETTINGA, et al.,

[Re: Docket Nos. 26, 30, 34, 38, 39, 48]
Defendants.

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Defendants Scott Raley and Jeanie O’Connor move to dismiss plaintiff Pacific Almaden

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Investments, LCC’s (“PAI”) complaint. Dkt. Nos. 26, 34; see Dkt. No. 1 (“Complaint”). Cross-

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complaint defendants Walter Hammon, Travis Krepelka, and Chicago Title Company, along with

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defendants Scott Raley and Jeanie O’Connor, move to dismiss cross-complainant Wylmina

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Hettinga’s cross-complaint. Dkt. Nos. 30, 34, 39; see Dkt. No. 10, cross-complaint (“XC”). Because

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the court finds that it lacks subject matter jurisdiction over both the complaint and the cross-

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complaint, the court GRANTS the motions to dismiss and dismisses the complaint and cross-

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complaint against all defendants. 1

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Plaintiff filed a motion for an extension of time to respond to the motion to dismiss the crosscomplaint filed by defendants Hammon and Krepelka. Dkt. No. 48. However, because the court
finds that it lacks subject matter jurisdiction over the cross-complaint, and because plaintiff had the
ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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Counsel for plaintiff Pacific Almaden Investments, LLC, Jamie Harris, also moves to

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withdraw. Dkt. No. 38. Harris states that she has been unable to communicate with her client, as her

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client has not returned her calls or emails since June 2014. Id. The court finds this to be a sufficient

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justification for withdrawal and GRANTS Harris’ motion.

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I. BACKGROUND
This case arises out of cross-complainant Hettinga and defendant Timothy Loumena’s state
court divorce case, which has been ongoing since 2005. Defendants O’Connor and Chicago Title

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Company represent in their motion that “Hettinga is a principle [sic] of PAI.” The complaint and

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cross-complaint allege similar facts and claims, all of which are nearly identical to the claim brought

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United States District Court
For the Northern District of California

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by Hettinga in an earlier case in this district against the same defendants. See Case No. 13-cv-2217.

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This court recently dismissed that case for lack of subject matter jurisdiction under Rooker-Feldman

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and declared Hettinga to be a vexatious litigant. Id., Dkt. No. 107.

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Cross-complainant, who is pro se, alleges in the cross-complaint that “[o]n February 27,

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2013, [defendant] Kennedy, purporting to be acting under the color of law, fraudulently claimed that

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Wylmina E. Hettinga, trustee of The Loumena 2000 Revocable Trust Agreement, established the

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6th of December, 2000, Wylmina E [sic] Hettinga as an individual, had, for a valuable

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consideration, receipt of which was acknowledged, granted the Property to Defendants.” XC ¶ 30.

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The cross-complaint further states that “[a]t first glance it appears that Hettinga was acting as a part

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of the [orchestrated actions of defendants] in order to violate PAI’s rights to hold [Hettinga and

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Loumena’s former family residence (the “property”)] or receive consideration from it, especially

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since approximately $200,000 of the proceeds of a subsequent sale of the Property were used to pay

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off Hettinga’s debts, but that is false.” Id. ¶ 17. The complaint similarly alleges that “[t]he Grant

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Deed specifically says FOR A VALUABLE CONSIDERATION which of course PAI received no

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consideration whatsoever.” Complaint ¶ 20 (emphasis in original). According to the Complaint, a

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grant deed was executed and the property was sold. Id. ¶ 21; see also XC ¶ 32. The proceeds were

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then divided among various creditors. XC ¶ 32.

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opportunity to respond to identical arguments in at least three different filings, see Dkt. Nos. 41, 45,
51, the court DENIES plaintiff’s motion.
ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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Documents from the state divorce case reveal that the state court repeatedly ordered that the

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property be sold, with the proceeds being placed in a trust account. 2 See Dkt. No. 34. In an order

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filed January 23, 2013, the state court wrote:
This Court previously ordered this property sold on 1 September 2011
(order filed 28 March 2012). Under that Order, Respondent Timothy
Loumena was to select the realtor, both parties were to sign any and all
necessary paperwork, and the net proceeds were to be placed into an
interest-bearing trust account. The Court reiterates and modifies that Order
as follows:

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(a) The property shall be listed and sold forthwith. The listing agent shall
be the individual named on the record by Mr. Loumena – Scott Raley
of Customer Service Realty. Mr. Loumena shall be the sole lister of
the property.

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United States District Court
For the Northern District of California

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(b) Mr. Loumena shall work with the realtor to prepare the property for
sale and make decisions concerning the appropriate list price, what to
do with offers received, and any other necessary elements of the sales
process. . . . As to any documents requiring any signatures from Ms.
Hettinga, . . . Mr. Loumena shall provide them, and those parties shall
promptly sign and return the documents to Mr. Loumena. If three (3)
days after presenting the documents, Mr. Loumena has not received
the necessary signatures, he may bring the documents to Department
83 for the Court Clerk to sign as elisor on behalf of Ms. Hettinga, . . . .

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Id. Ex. L. It appears that, pursuant to the January 23, 2013 state court order, Mr. Loumena was

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required to have the court clerk, defendant Kennedy, sign as elisor on behalf of Hettinga. The

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complaint alleges that “KENNEDY was not granted any right to transfer PAI’s interest in the

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Property to Timothy P. Loumena, an unmarried man.” Complaint ¶ 22 (emphasis in original).

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Plaintiff and cross-complainant each bring a single claim, for a civil rights violation under

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42 U.S.C. § 1983. Plaintiff and cross-complainant’s allegations arise directly out of the sale of the

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property in Hettinga’s divorce case. Specifically, plaintiff and cross-complainant assert that the

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forced sale of the property violated the Fourth Amendment and the Takings Clause of the Fifth and

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Fourteenth Amendments. Complaint ¶¶ 61-63, 66; XC ¶¶ 35-37, 40. The Complaint names as

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defendants Hettinga, Timothy Loumena, Hettinga’s ex-husband; Pamela Kennedy, the state court

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clerk; Scott Raley, the court-appointed real estate listing agent; and Jeanie O’Connor, who

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Defendants Jeanie O’Connor and Chicago Title Company request that the court take judicial notice
of various court documents, including several from the state court divorce case. Dkt. No. 34. This
motion is GRANTED.
ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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apparently has some relationship with Chicago Title Company. The cross-complaint names as

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defendants PAI; Loumena; Kennedy; Raley; O’Connor; Chicago Title Company, which was

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involved in the sale of the property; Walter Hammon, the attorney appointed by the state court to

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represent plaintiff’s children; and Travis Krepelka, Loumena’s attorney.

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II. ANALYSIS

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A. Legal Standard

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A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency
of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering whether the

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complaint is sufficient to state a claim, the Court must accept as true all of the factual allegations

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United States District Court
For the Northern District of California

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contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the Court need

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not accept as true “allegations that contradict matters properly subject to judicial notice or by

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exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

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inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint

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need not allege detailed factual allegations, it “must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court

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to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

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“Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task

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that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

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B. Motions to Dismiss

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Defendants argue that the court lacks subject matter jurisdiction over the plaintiff and cross-

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complainant’s claims based on the Rooker-Feldman doctrine. Under the Rooker-Feldman doctrine,

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a federal district court has no authority to review the final determinations of a state court in judicial

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proceedings. Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v.

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Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). “The purpose of the doctrine is to protect state

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judgments from collateral federal attack. Because district courts lack power to hear direct appeals

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from state court decisions, they must decline jurisdiction whenever they are ‘in essence called upon

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to review the state court decision.’” Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026,
ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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1030 (9th Cir. 2001) (quoting Feldman, 460 U.S. at 482 n.16). The Rooker-Feldman doctrine

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precludes not only review of decisions of the state’s highest court, but also those of its lower courts.

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See Dubinka v. Judges of Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). A challenge under the

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Rooker-Feldman doctrine is a challenge for lack of subject matter jurisdiction. Olson Farms, Inc. v.

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Barbosa, 134 F.3d 933, 937 (9th Cir. 1998).

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The Rooker-Feldman doctrine applies when a plaintiff in federal court alleges a “de facto

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appeal” by (1) asserting errors by the state court as an injury and (2) seeking relief from the state

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court judgment as a remedy. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139-40 (9th Cir. 2004). “A

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federal action constitutes such a de facto appeal where ‘claims raised in the federal court action are

United States District Court
For the Northern District of California

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‘inextricably intertwined’ with the state court’s decision such that the adjudication of the federal

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claims would undercut the state ruling or require the district court to interpret the application of state

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laws or procedural rules.’” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)

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(quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003)).

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In this case, plaintiff and cross-complainant each bring a § 1983 claim based on the state

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court’s alleged violation of the Fourth, Fifth, and Fourteenth Amendments in ordering and executing

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the sale of plaintiff’s property. Plaintiff and cross-complainant argue that the state court was wrong

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to order the sale of the family residence and compel the proceeds to be placed in a trust account.

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Plaintiff and cross-complainant seek relief in the form of monetary damages. Both pleadings also

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focus on the state court’s order requiring the property to be sold and the state court’s order

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distributing the proceeds of the sale to various creditors. Clearly, this is the sort of collateral attack

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on a state court order contemplated by Rooker and Feldman. “The Rooker-Feldman doctrine,

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generally speaking, bars a plaintiff from bringing a § 1983 suit to remedy an injury inflicted by the

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state court’s decision.” Jensen v. Foley, 295 F.3d 745, 747 (7th Cir. 2002). Here, plaintiff and cross-

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complainant’s § 1983 claims are barred by Rooker-Feldman, and the court thus dismisses with

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prejudice to further filings in federal court plaintiff’s complaint and the cross-complaint for lack of

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subject matter jurisdiction. Durbin v. Dubuque, 348 F. App’x 294, 295 (9th Cir. 2009) (ordering the

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district court to dismiss without prejudice to filing in state court).

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ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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III. ORDER

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For the foregoing reasons, the court GRANTS defendants’ motions to dismiss with prejudice
as to further filings in federal court. The court also GRANTS attorney Jamie Harris’ motion to
withdraw.

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Dated: October 1, 2014

_________________________________
RONALD M. WHYTE
United States District Judge

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United States District Court
For the Northern District of California

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ORDER GRANTING MOTION TO DISMISS
Case No. C-14-1631-RMW
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