Bashkin v. Coffee et al

Filing 30

ORDER Granting 14 and 15 Motions to Dismiss; and ORDER of Dismissal: Defendants' motions to dismiss are granted and Defendant W&O's motion to strike is denied as moot. Plaintiff's federal claims are dismissed without leave to amend . His supplemental state claims are dismissed without prejudice but without leave to amend. W&O's request for attorney's fees is denied without prejudice. W&O may file a noticed motion for attorney's fees no later than 14 calendar day s from the date this order is entered. If at that time W&O has not moved for an award of fees, judgment will be entered and the case terminated. Signed by Judge Larry Alan Burns on 2/13/09. (All non-registered users served via U.S. Mail Service).(pdc)

1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 ORDER OF DISMISSAL 14 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, proceeding pro se, brought suit, alleging Defendants wronged him in various ways in connection with state court litigation. Pursuant to 28 U.S.C. § 1915(e)(2), the February 10, 2009 Court screened and dismissed his original complaint and granted him leave to amend. Plaintiff then filed his first amended complaint ("FAC"), which the Court again screened, dismissing some but not all claims. Following screening, the three MICHAEL J. HICKMAN, an individual; MUSICK, PEELER & GARRETT, LLP, a limited liability partnership; WHITE & OLIVER, a professional corporation; and DOES 1 through 100, inclusive, [Dkt. Nos. 14, 15, 16] PAUL BASHKIN, Plaintiff, CASE NO. 07cv0995-LAB (CAB) ORDER GRANTING MOTIONS TO DISMISS; AND

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

remaining Defendants were Michael Hickman, the law firm of Musick, Peeler & Garrett, LLP ("MPG"), and the law firm of White & Oliver, PC ("W&O"). The only remaining claims were claims against these Defendants under 42 U.S.C. §§ 1983 and 1985 for nominal damages because of their alleged conspiracy to deprive him

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of due process rights.1 The Court's screening order issued January 17, 2008 explained Plaintiff could not maintain a claim for compensatory damages because of the state court's allegedly erroneous ruling declaring him a vexatious litigant. Rather, Plaintiff could only potentially bring a claim for nominal damages for depriving him of due process rights in connection with the vexatious litigant proceeding. (See Order of January 17, 2008 at 5:7­23, 7:15­28, 10:2­6.) All other claims were dismissed without prejudice but without leave to amend. (Id. at 10:6, 10:15­16.) Defendants then simultaneously brought three motions: W&O's motion to dismiss the complaint (Dkt. no. 14), Hickman and MPG's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. no. 15), and W&O's motion to strike the FAC's second and third causes of action under California's Anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16 (Dkt. no. 16.) W &O requested an award of attorney's fees. Plaintiff and W&O asked the Court to take judicial notice of certain documents. (Dkt. nos. 14-4, 16-4, 28-2.) Because it is clear the motions to dismiss should be granted, the Court will address their arguments and need not reach the issues raised in the anti-SLAPP motion. I. Legal Standards At the pleading stage, the Court accepts all allegations of material fact in the complaint as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Med. Cent. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). The Court does not, however, accept as true allegations

contradicting documents referenced in the complaint or that are properly subject to judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (citations omitted). Because Plaintiff is proceeding pro se and bringing civil rights claims, the Court liberally construes his pleadings. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The Court does not, however, supply essential elements of the claim

Plaintiff also brought various state-law claims. The Court held it could only exercise supplemental jurisdiction over these, and they would be dismissed if the related federal claims were also dismissed. (Order of January 17, 2008 ("Second Screening Order") at 3:27­4:2.) -207cv0995

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that were not in initially pled. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The Court's previous screenings notwithstanding, 28 U.S.C. § 1915(e)(2) imposes a continuing duty on the Court to dismiss if at any time it finds the action is frivolous or malicious or fails to state a claim. II. Requests for Judicial Notice Pursuant to Fed. R. Evid. 201, Defendant W&O asks the Court to take notice of two state court records in unpublished California state case No. D043857, Bashkin v. Glickman, et al. (Cal. 4 App. Dist., Div. 1): W&O's motion to have Bashkin declared a vexatious litigant, and the state court's order granting the motion. (Dkt. nos. 14-4, 16-4.) Plaintiff asks the Court to take judicial notice of three other records in the same case: the notice of entry of judgment, a portion of the register of actions, and the docket. (Dkt. no. 28-2.) The Court may take notice of state court records or proceedings, though not the findings of fact contained in them. Wyatt v. Terhune, 315 F.3d 1108, 1114 & n.5 (9th Cir. 2003). Furthermore, the FAC refers to the documents proffered by W&O as forming the basis for Plaintiff's claim. The requests are therefore GRANTED for the purpose of showing the existence and contents of the records, and the nature of the proceedings. III. Discussion A. Plaintiff's Claim

As the Court's Second Screening Order explains, Plaintiff alleges "defendants" conspired with judges in Division One of California's Fourth District Appellate Court to deprive him of his right to an adequate hearing on various legal issues, including a motion to have him declared a vexatious litigant. (See Second Screening Order at 7:15­17; FAC ¶¶ 27­29.) Specifically, he says the alleged conspirators agreed that Defendants would file and the judges would grant a motion declaring Plaintiff a vexatious litigant, after which they did so, thus terminating his lawsuit and two pending appeals. As the screening order pointed out, this Court lacks jurisdiction under the RookerFeldman doctrine to entertain a challenge the state court's order declaring him a vexatious -3-

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litigant. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (holding the Rooker-Feldman doctrine prevents federal district courts from considering de facto appeals from earlier state-court judgments). At the time of the screening, the Court liberally construed the FAC and concluded Plaintiff could apparently bring a claim for denial of procedural due process rights even without challenging the correctness of the state court's order. Plaintiff cannot maintain an action in this Court seeking to have the state court's judgment vacated or set aside, but it does not necessarily follow that he cannot bring a claim for denial of procedural due process rights even if the state court's judgment remains unchallenged. B. Motion to Dismiss by Defendants Hickman and MPG

Defendants Hickman and MPG argue Plaintiff has not alleged Defendant W&O, not Hickman or MPG, conspired with state court judges to have him declared a vexatious litigant. If this is the case, Hickman's and MPG's motion should be granted because, as the Court has already held, Plaintiff's other claims must all be dismissed for lack of jurisdiction or for failure to state a claim. A closer review of ¶¶ 27 through 30 of the FAC makes clear Defendants Hickman and MPG are correct. In ¶¶ 27­29, Plaintiff alleges "defendants, through their counsel,

W &O" conspired with the judges and "it was agreed that the defendants, through their counsel, would file a vexatious-litigant motion against BASHKIN. . . ." (FAC at 9:19­21.) While these paragraphs ambiguously make allegations against "defendants," in context this term must mean the defendants in Bashkin v. Glickman, not Defendants in this case. Plaintiff is alleging the vexatious litigant motion was filed by W&O in connection with Bashkin v. Glickman in order to terminate that case and no others. (FAC ¶¶ 28 (alleging the purpose of the vexatious litigant motion was to terminate Bashkin's lawsuit and dismiss his two pending appeals), 30 (alleging that Bashkin's being declared a vexatious litigant successfully terminated Bashkin v. Glickman and both pending appeals in that case).) The judicially-noticed documents from Bashkin v. Glickman make clear the only defendants there were David Glickman and the law firm of Glickman & Glickman. The Court -4-

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therefore concludes the only reasonable construction of these allegations is that Plaintiff is bringing this claim against W&O only, and not against Hickman or MPG. C. Claim Against W&O

The FAC's allegations underlying Plaintiff's surviving claim did not initially appear ambiguous, but in view of the nature and contents of the judicially noticed documents it is now apparent they are. The FAC could be reasonably construed as saying the conspirators agreed in advance what the outcome would be, such that Plaintiff's arguments and evidence would never be considered and the whole proceeding was a mere pretense. Because this states a claim for denial of procedural due process rights, see In re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process."), the Court liberally construed the FAC in this way. The allegations could also -- though this initially appeared less likely -- be construed to mean the judges and opposing parties improperly discussed the case privately and agreed amongst themselves that a motion to have Plaintiff declared a vexatious litigant was bound to succeed. Depending on the content of the conversation (which is not specifically alleged), such ex parte communications might or might not intractably prejudice judges against Plaintiff, see Alexander Shokai, Inc. v. C.I.R., 34 F.3d 1480, 1484 (9th Cir. 1994), though they would of course be highly irregular. They would not necessarily result in a due process violation so long as Plaintiff was presented with the information against him and had an opportunity to rebut it. See id. Although the Court accepts most allegations as true in deciding a motion to dismiss, it does not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted). The Court is likewise not required to accept as true conclusory allegations which are contradicted by documents referenced in the complaint or that are properly subject to judicial notice. Lazy Y Ranch, 546 F.3d at 588. /// -5-

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Plaintiff has alleged W&O conspired with judges to fix the vexatious litigant proceedings so that Bashkin v. Glickman and the two pending appeals would be terminated. W hen a California court declares a plaintiff in a pending case a vexatious litigant, the consequence provided for under Cal. Civ. Proc. Code § 391 et seq. is not immediate dismissal, but rather an order requiring the plaintiff to furnish security. §§ 391.1, 391.3. Only if security is not furnished as ordered may the litigation be dismissed. § 391.4. Other consequences such as prefiling orders are possible, see § 391.7, though such an order would not terminate a pending action or appeal. In spite of these provisions, Plaintiff has alleged the state court acted on its own accord to terminate both the case itself and the two pending appeals. The documents from Bashkin v. Glickman that are now before this Court make clear this did not happen. Rather, the state court's order issued September 30, 2004 required Bashkin to furnish a $35,000 bond before proceeding with his appeal, and subjected him to a prefiling order forbidding him from filing new litigation without leave. (W&O Req. for Judicial Notice in Supp. of Mot. to Dismiss, ex. 2 ("State Court Order") at 13­14.) The appellate docket in Bashkin v. Glickman reflects the appeal was dismissed on November 23, 2004, because Bashkin failed to post security within the time permitted. (Pl.'s Req. for Judicial Notice in Supp. of Opp'n to Mot. to Dismiss, (Dkt. no. 28-2), ex. 3 at 5.) The state court's order did not address the case at the trial level, which had already been terminated by a different judge pursuant to California's anti-SLAPP statute. (Id., ex. 1 (Notice of Entry of Judgment, filed February 13, 2004).) Plaintiff then filed a petition for review in the California Supreme Court, which was denied on March 2, 2005. (Id., ex. 3 at 6.) The State Court Order also shows Plaintiff did have an opportunity to present arguments to the court, because the court identified and considered them at length. (State Court Order at 1­13.) While the state court's ruling is of course not reviewed for

correctness, the Court does note its reasoning is based primarily on a rather straightforward review of other state court judgments against Bashkin and an application of the definition of "vexatious litigant" as set forth in Cal. Civ. Proc. Code § 391(b)(1) (providing that a "vexatious -6-

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litigant" includes anyone who, within the preceding seven years, has maintained in pro per at least five ultimately unsuccessful litigations other than in small claims court). In other words, the analysis leading up to the court's declaration that Bashkin was a vexatious litigant amounted to little more than tallying up his seven recent unsuccessful actions and noting he met the definition. The court then determined Bashkin was unlikely to prevail and ordered him to post security within 20 days. In short, the noticed documents demonstrate the events did not occur in the manner the Court originally construed the FAC as saying they did. Rather, at most, the FAC construed as alleging some kind of ex parte communication about the likely outcome of a vexatious litigant motion. Because it is obvious Plaintiff's arguments were presented to and considered by the state court, Plaintiff did not suffer a deprivation of due process rights. Alexander Shokai, Inc., 34 F.3d at 1484. Moreover, Plaintiff also sought review by the state supreme court, whose justices were not involved in this alleged conspiracy. D. Dismissal

Ordinarily when granting a motion to dismiss, the Court will grant a plaintiff leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The Court need not and will not do so, however, when it is clear amendment would be futile. Id. Here, Plaintiff has amended his complaint once. Following the second dismissal of his claims he also brought a motion seeking leave to amend again, which was also denied on the merits. In addition to these repeated failed attempts to amend, the noticed documents also make clear he cannot successfully amend his complaint even if he were given another opportunity. Furthermore, under 28 U.S.C. § 1915(e)(2)(B)(i), the Court must dismiss this action sua sponte if at any time it determines the action is frivolous or malicious. In view of Plaintiff's misrepresentation of the state court's actions and Plaintiff's willingness to have Hickman and MPG served with process even though he knew the only remaining claim arose out of Bashkin v. Glickman, to which they were not parties, the Court finds this action to be malicious and largely frivolous. Therefore even in the absence of arguments from the parties, the Court would dismiss this action without leave to amend. -7-

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E.

Attorney's Fees

Both W&O and Plaintiff cite Witte v. Kaufman, 141 Cal. App. 4th 1201 (Cal. App. 4 Dist. 2006), which held that a law firm represented by its own members had not "incurred" fees in bringing a motion to strike. W&O also cites Dowling v. Zimmerman, 85 Cal. App. 4th 1400, 1426 (Cal. App. 4 Dist. 2001), contending it may justify an award of fees anyway. W &O did not brief the issue further, such as by arguing or citing authority to show why Dowling or Witte should control. It appears W&O may be entitled to attorney's fees under 42 U.S.C. § 1988 as requested in W&O's motion to dismiss even though its own members represented it. Elwood v. Drescher, 456 F.3d 943, 947 (9th Cir. 2006). However, it may not recover fees for claims dismissed for lack of subject matter jurisdiction. Id. at 948. The parties did not have the benefit of this ruling at the time fees were requested, and therefore could not have considered it in crafting their briefing. The Court cannot find, on the basis of the thin briefing before it, that W&O has shown why the Court can and should award fees. IV. Conclusion and Order For reasons set forth above, Defendants' motions to dismiss are GRANTED and Defendant W&O's motion to strike is DENIED AS MOOT. Plaintiff's federal claims are DISMISSED WITHOUT LEAVE TO AMEND. His supplemental state claims are DISMISSED WITHOUT PREJUDICE BUT WITHOUT LEAVE TO AMEND. W&O's request for attorney's fees is DENIED WITHOUT PREJUDICE. W&O may, if it wishes, file a noticed motion for attorney's fees no later than 14 calendar days from the date this order is entered. If at that time W&O has not moved for an award of fees, judgment will be entered and the case terminated. IT IS SO ORDERED. DATED: February 13, 2009

HO N O R AB LE LARRY ALAN Burns United States District Judge -807cv0995