Bribiesca v. Procopio, Cory, Hargreaves, and Savitch, LLP et al

Filing 50

ORDER Granting Motions to Dismiss and Dismissing Case for Lack of Jurisdiction. Signed by Judge Roger T. Benitez on 1/10/2017. (All non-registered users served via U.S. Mail Service)(knb) (jao).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DR. JUAN BRIBIESCA, M.D., C.C.P.,

Case No.: 3:16-cv-01225-BEN-WVG

Plaintiff,

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v.

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ORDER GRANTING MOTIONS TO
DISMISS AND DISMISSING CASE
FOR LACK OF JURISDICTION

PROCOPIO, CORY, HARGREAVES,
AND SAVITCH, LLP, et al.,

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Defendants.

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Plaintiff Dr. Juan Bribiesca (“Plaintiff” or “Bribiesca”), proceeding pro se, filed a

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complaint on the basis of federal question jurisdiction under the Racketeering and

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Corrupt Organizations (“RICO”) Act of 1970 against twenty-seven (27) defendants

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related to events that occurred at Plaintiff’s former place of employment, which he has

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already litigated to final judgment in state court. (Compl., ECF No. 1.) Presently before

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the Court are nine (9) motions to dismiss:

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(1)

Motion to Dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), filed by Defendants Chris Van Gorder; Gary Fybel; Lisa

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Thakur; Brad Ellis; Scripps Health dba Scripps Memorial Hospital, La Jolla;

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John Spinosa, M.D.; Richard Unger, M.D.; Irma Flores; Steve Peterson; and
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Aimee Dovidio [hereinafter “Scripps Defendants”] (Scripps MTD, ECF No.

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5);

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(2)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 8, 12(b)(1),

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12(b)(6), and 41(b), filed by Defendant The Honorable Randa Trapp, Judge

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of the Superior Court of California, County of San Diego (J. Trapp MTD,

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ECF No. 10);

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(3)

Amended Motion to Dismiss for failure to state a claim under Federal Rule

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of Civil Procedure 12(b)(6), filed by Defendant Mark Kalish, M.D. (Kalish

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Am. MTD, ECF No. 11);

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(4)

Amended Motion to Strike Plaintiff’s Complaint under California’s anti-

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SLAPP statute, filed by Defendant Mark Kalish, M.D. (Kalish Am. Mot. to

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Strike, ECF No. 12);

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(5)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

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12(b)(6), filed by Defendants County of San Diego, Sheriff William Gore,

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and Larry Trapp [hereinafter “County Defendants”] (County MTD, ECF No.

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13);

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(6)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

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12(b)(6), filed by Defendants Procopio, Cory, Hargreaves, & Savitch, LLP;

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Timothy Salter; and Paul Tyrell [hereinafter the “Procopio Defendants”];

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Pacific Perfusion, Inc.; Richard Julien; and Holly Colavin [hereinafter the

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“PPI Defendants”] (Procopio & PPI MTD, ECF No. 15);

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(7)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

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12(b)(6), filed by Defendant Alexander S. Giritsky, M.D. (Giritsky MTD,

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ECF No. 21);

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(8)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

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12(b)(6), filed by Defendants Michael Meenen and Razorback Perfusion,

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Inc. (Meenen MTD, ECF No. 23); and

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(9)

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

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12(b)(6), filed by Defendant Kelly Brinkman (Brinkman MTD, ECF No.

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44).

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Plaintiff filed an untimely combined opposition to the motions filed by the Scripps

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Defendants, Kalish, The Honorable Randa Trapp, the County Defendants, the Procopio

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and PPI Defendants, and Giritsky. (Comb. Opp’n, ECF No. 24.) Two days later,

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Plaintiff filed a “Corrected Combined Opposition.” (Corr. Comb. Opp’n, ECF No. 27.)1

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Both of Plaintiff’s opposition briefs exceed eighty (80) pages, despite the Local Rules

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requiring that opposition briefs must not exceed twenty-five (25) pages without leave of

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Court. See CivLR 7.1(h). Plaintiff did not seek leave of Court to file the excess pages.

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He separately filed an opposition to Defendants Meenen and Razorback Perfusion’s

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motion (Meenen Opp’n, ECF No. 36.), and later, Objections and a Motion to Strike

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Exhibits from Meenen and Razorback Perfusion’s motion (ECF No. 43). He also filed an

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opposition to Defendant Brinkman’s motion to dismiss. (ECF No. 45.)

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Defendants filed replies. (Scripps Reply, ECF No. 29; Giritsky Reply, ECF No.

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30; J. Trapp Reply, ECF No. 31; Kalish Am. MTD Reply, ECF No. 32; Kalish Am. Mot.

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to Strike Reply, ECF No. 33; Procopio & PPI Reply, ECF No. 34; County Reply, ECF

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No. 35; Meenen Reply, ECF No. 40; Brinkman Reply, ECF No. 46.)

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In connection with Plaintiff’s Corrected Combined Opposition, he filed a Request for
Judicial Notice. (ECF No. 28.) He asks the Court to take judicial notice of photocopies
of diplomas and certificates of completion for educational courses from the 1970s and
1980s. Plaintiff proffers these documents in response to the Procopio and PPI
Defendants’ statement in its motion to dismiss that Plaintiff is not a medical doctor. To
take judicial notice of a fact, the fact must “not [be] subject to reasonable dispute because
it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201. These photocopied documents are subject
to reasonable dispute. For instance, the Court knows nothing about the schools or
organizations that issued these documents and what they purport to stand for. Therefore,
the Court DENIES Plaintiff’s Request for Judicial Notice.
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For the following reasons, the Court GRANTS the motions to dismiss and
DISMISSES the complaint for lack of subject matter jurisdiction.
BACKGROUND2

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Plaintiff Dr. Juan Bribiesca practiced at Defendant Scripps Memorial Hospital in

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La Jolla (“Scripps La Jolla”) as a perfusionist from 1990 until April 2009. (Compl. ¶¶

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32, 34.) A perfusionist is a member of the cardiothoracic surgical team who operates the

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heart and lung machine during open heart surgery. (Id. ¶ 32.) From 1990 until 2003,

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Bribiesca worked as an independent contractor at Scripps La Jolla. (Id. ¶ 35.) From

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2003 to 2008, Plaintiff performed his work through La Jolla Perfusion, a partnership that

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he had formed with Defendants Richard Julien and Holly Colavin, pursuant to a five-year

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contract between La Jolla Perfusion and Scripps La Jolla. (Id. ¶ 37.) La Jolla Perfusion

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was the combination of Julien and Colavin’s partnership, Defendant Pacific Perfusion,

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and Bribiesca’s business, J.B. Coastal, Inc., which he had incorporated in 2003. (Compl.

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¶¶ 36-37.) Colavin withdrew from La Jolla Perfusion at the end of 2008, leaving

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Bribiesca and Julien as equal co-owners. (Id. ¶ 49.)
La Jolla Perfusion’s contract with Scripps La Jolla ended in 2008, thereafter the

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parties began operating under a month-to-month contract. (Id. ¶ 38.) In early 2009,

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Bribiesca and Julien began negotiations with Scripps La Jolla to enter into a longer term

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contract. (Id. ¶ 50.) Scripps La Jolla’s Vice President of Operations, Defendant Lisa

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Thakur, represented the hospital in the negotiations. (Id. ¶ 51.) During negotiations,

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Thakur mentioned complaints she had heard from two La Jolla Perfusion subcontractors,

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Defendants Michael Meenen and Kelly Brinkman. (Id. ¶ 54.) Bribiesca and Julien

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assured Thakur that they would address the complaints. (Id. ¶ 57.) Bribiesca and Julien

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then met with Meenen and Brinkman. (Id. ¶ 58.) Meenen and Brinkman asked for a

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The Court is not making any findings of fact, but rather summarizing the relevant
allegations of the Complaint and, where applicable, matters of judicial notice for
purposes of evaluating Defendants’ motions.
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higher salary and a partnership interest, but Bribiesca and Julien explained that they could

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not negotiate those issues until La Jolla Perfusion had a long term contract in place with

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Scripps La Jolla. (Id.) The parties left the meeting understanding that the personnel

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issues within La Jolla Perfusion would be placed on hold pending completion of the

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contract negotiation with Scripps La Jolla. (Id. ¶ 59.)
Subsequently, Thakur and Julien allegedly schemed to “lock out” Bribiesca from

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La Jolla Perfusion’s contract opportunity. (Id. ¶ 60, 63.) Julien approached Colavin,

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Meenen, and Brinkman about starting a new partnership to take over La Jolla Perfusion’s

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contract with Scripps La Jolla. (Id. ¶ 61.) Plaintiff alleges that Thakur suggested, and

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Julien agreed, that Meenen and Brinkman should fabricate false complaints about

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Bribiesca. (Id. ¶¶ 62-64.) Julien and Brinkman thereafter manufactured false statements

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about Bribiesca, and Julien provided the false statements to Thakur in mid April 2009.

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(Id. ¶¶ 65-67.)

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Julien and Thakur agreed that Julien and Colavin, who had already left La Jolla

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Perfusion (id. ¶ 49), would dissolve La Jolla Perfusion without Bribiesca’s knowledge or

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consent. (Id. ¶ 68.) Defendant law firm Procopio, Cory, Hargreaves, and Savitch LLP

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(“Procopio”) and one of its partners, Defendant Timothy Salter, advised Julien and

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Colavin about the “lock out” plan. (Id. ¶ 69.) Plaintiff alleges that Procopio and Salter

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had previously represented Bribiesca in a medical malpractice insurance dispute in the

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mid 1990s and thereafter continued to perform various legal work for Bribiesca, Julien,

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Colavin, and La Jolla Perfusion. (Id. ¶¶ 39, 43.)

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In mid April 2009, Colavin and Julien organized a sham meeting to vote out

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Bribiesca without his notice. (Id. ¶ 70.) Thakur informed Defendant Gary Fybel, CEO of

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Scripps La Jolla, and Defendant Chris Van Gorder, President and CEO of Defendant

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Scripps Health, about the sham vote, and Fybel and Van Gorder agreed with it. (Id. ¶

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71.) On April 21, 2009, Julien notified Bribiesca about the partnership dissolution. (Id. ¶

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76.)

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///
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Eight days later, on April 29, 2009, Bribiesca was at the hospital and started a

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conversation with Defendant Aimee Dovidio, a hospital security guard. (Id. ¶ 77.) He

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asked her whether she carried pepper spray and how she would handle an aggressive

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patient. (Id. ¶ 78.) She replied that she did not need pepper spray because she had a

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radio and backup assistance. (Id.) The conversation ended shortly thereafter, and

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Bribiesca proceeded to his next patient. (Id. ¶ 79.)

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Dovidio informed Defendant Steve Peterson, Director of Security at the hospital,

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about her conversation with Bribiesca. (Id. ¶ 80.) Peterson then spoke to Thakur, who

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considered the conversation to be inappropriate and decided to immediately evict

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Bribiesca from hospital property. (Id.) Thakur found Bribiesca and began to interrogate

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him about his conversation with Dovidio. (Id. ¶ 82.) Bribiesca was flanked by four

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security guards that Thakur had brought with her. (Id.) Bribiesca cooperated and was

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confused that anyone would consider his friendly conversation with Dovidio to be

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threatening. (Id.) Thakur informed Bribiesca that she had decided to immediately evict

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him and that he was not free to return because he was a threat to the hospital. (Id. ¶ 83.)

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Thakur dispatched two security guards to break into Bribiesca’s locker and search and

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seize his property. (Id. ¶ 84.) The guards found no weapons or evidence of a crime. (Id.)

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Surrounded by four security guards under Thakur and Peterson’s command,

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Bribiesca was forced off hospital property. (Id. ¶ 85.) Thakur told Julien and Defendant

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John Spinosa, Chief of Medical Staff at Scripps La Jolla, that Bribiesca had been ejected

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because he was a threat to the hospital. (Id. ¶¶ 86-87.) In early May 2009, Bribiesca

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received a letter from Scripps La Jolla, signed by Spinosa, stating that his privileges at

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the hospital had been terminated. (Id. ¶ 93.) The letter alleged that the termination was

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because Bribiesca no longer had a staff physician sponsor. (Id. ¶ 93.) However,

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Bribiesca’s sponsor, Defendant Dr. Alexander Giritsky, later testified that he never

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withdrew his sponsorship. (Id. ¶ 94.)

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Thakur and Peterson reported Bribiesca’s conversation with Dovidio to the San
Diego Police and Federal Bureau of Investigation (“FBI”), and in June, two FBI agents
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interviewed Bribiesca. (Id. ¶¶ 90-92.) After the interview, the agents informed him that

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they saw no evidence of a crime and were closing the investigation. (Id. ¶ 92.)

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On June 17, 2009, Bribiesca sued certain present defendants in the Superior Court

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of California, County of San Diego, for damages arising from the termination of the La

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Jolla Perfusion partnership and his removal from the hospital (the “State Court Action”).3

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(Id. ¶ 95.) Plaintiff’s Fourth Amended Complaint was the operative pleading at the time

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of trial, bringing thirteen (13) causes of action against Defendants Pacific Perfusion,

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Julien, Colavin, Meenen, Brinkman, and Scripps Memorial Hospital. (Judgment in State

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Court Action, Procopio & PPI Notice of Lodgment (“NOL”) Ex. 1; Fourth Amended

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Complaint in State Court Action, Procopio & PPI NOL Ex. 2.)4

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Procopio represented present Defendants Pacific Perfusion, Julien, and Colavin,

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despite Procopio and Salter’s prior representation of Bribiesca. (Compl. ¶ 96.)

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Procopio’s lead attorney on the case was Defendant Paul Tyrell, but Salter also

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participated in the representation against Bribiesca. (Id. ¶ 97.)

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Defendant the Honorable Randa Trapp, Judge of the Superior Court, presided over

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the State Court Action. (Id. ¶ 101.) Plaintiff contends Judge Trapp improperly granted

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motions for discovery, for summary judgment, and in limine against him. (Id. ¶¶ 102-

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The State Court Action was captioned Juan Bribiesca, et al. v. Pacific Perfusion, Inc.,
et al., San Diego Superior Court Case No. 37-2012-0000091932.
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The Procopio and PPI Defendants request that the Court take judicial notice of certain
court filings from the State Court Action and its related appeals. See Request for Judicial
Notice, ECF No. 15-5; Request for Judicial Notice, ECF No. 34-4. A court “may take
notice of proceedings in other courts, both within and without the federal judicial system,
if those proceedings have a direct relation to matters at issue.” United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992);
see also United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004)
(“While the authenticity and existence of a particular order, motion, pleading or judicial
proceeding, which is a matter of public record, is judicially noticeable, veracity and
validity of its contents (the underlying arguments made by the parties, disputed facts, and
conclusions of applicable facts or law) are not.”). Accordingly, the Court GRANTS the
requests.
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104, 107-109.) These prejudicial rulings “polluted” the trial. (Id. ¶ 108.) Plaintiff

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believes Judge Trapp should have recused herself because she had a conflict of interest

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favoring Scripps La Jolla. (Id. ¶ 115.) He contends that Judge Trapp was conflicted

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because her husband, Defendant Deputy Trapp, “maintained a business relationship with

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a key defendant in the case, President and CEO of Scripps Health, Mr. Van Gorder.” (Id.

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¶ 110.) In support of this allegation of a “business relationship” between Deputy Trapp

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and Van Gorder, Plaintiff attaches a 2014 article stating that Van Gorder “was recently

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named reserve assistant sheriff of the San Diego County Sheriff’s Department,” a

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volunteer position. (Id. Ex. C.) Van Gorder had been serving as a volunteer deputy

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sheriff since 2003. (Id.) Plaintiff alleges that Van Gorder’s volunteer position makes

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him a “co-worker with Judge Trapp’s husband, Deputy Trapp.” (Id. ¶ 113.) Moreover,

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Plaintiff contends that Judge Trapp was conflicted because deputies from the San Diego

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Sheriff’s Department provide security to Judge Trapp in her courtroom. (Id. ¶ 114.)

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Despite this alleged conflict, Judge Trapp did not recuse herself, which Plaintiff alleges

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deprived him of due process and an impartial tribunal. (Id. ¶¶ 116-117.)
In August 2011, Plaintiff filed a “Motion for Peremptory Challenge and

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Disqualification,” requesting that Judge Trapp recuse herself because she is “prejudiced

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against Plaintiffs and/or their attorney, or the interests of same, so that the Plaintiffs

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and/or their attorney cannot, or believe that they cannot, have a fair and impartial trial or

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hearing before said Judge.” (Motion for Peremptory Challenge and Disqualification,

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County’s Request for Judicial Notice (“RJN”) Ex. B.)5 Superior Court Judge Ronald S.

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Prager denied the motion as being untimely. (Order Denying Motion for Peremptory

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Challenge and Disqualification, County’s RJN Ex. C.)

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The County Defendants ask the Court to take judicial notice of certain court filings from
the State Court Action and its related appeals. (ECF No. 14.) The Court GRANTS their
request.
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The case went to trial in August 2012.6 (Judgment in State Court Action, Procopio

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& PPI NOL Ex. 1.) At the close of evidence, the Court ruled in Defendants’ favor on the

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declaratory relief and breach of contract claims, and the jury returned a verdict in favor of

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all Defendants on all remaining causes of action. (Id.) Later, Judge Trapp awarded

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Pacific Perfusion, Julien, and Colavin $370,850 in attorneys’ fees and $11,616.96 in

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costs, and awarded Scripps $78,861.23 in costs.7 (Id.) Plaintiff appealed to the Fourth

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Appellate District of the California Court of Appeal, which affirmed the judgment in

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September 2014. (Opinion of the Fourth Appellate District of the California Court of

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Appeal dated Sept. 17, 2014, Procopio & PPI NOL Ex. 3.) He then tried without success

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Before trial, Plaintiff settled with Defendants Meenen and Brinkman, and they were
dismissed with prejudice from the State Court Action. (See Request for Dismissal Signed
by Clerk of Superior Court, Brinkman RJN Ex. 1.)

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Defendants Meenen and Razorback Perfusion, Inc. and Defendant Brinkman have filed
requests for judicial notice. (ECF Nos. 44-3 & 23-2.) Each ask the Court to take judicial
notice of the Fourth Amended Complaint in the State Court Action; the Settlements and
General Release Agreements between Juan Bribiesca and JB Coastal, Inc., on the one
hand, and Meenen and Brinkman on the other hand; and the Request for Dismissal of
Meenen and Brinkman from the State Court Action. The Meenen Defendants later
refiled the Settlement and General Release Agreement between Bribiesca and Meenen, as
they had previously filed Brinkman’s agreement. (ECF No. 40-2.) Bribiesca objects and
moves to strike the two settlement agreements filed by the Meenen Defendants, claiming
the agreements to be inauthentic and exhibiting forgery. The Court OVERRULES
Plaintiff’s objections and GRANTS Defendants’ requests for judicial notice of the
documents. The Meenen agreement is no different from the Brinkman agreement, and
Plaintiff does not object to the authenticity of the Brinkman agreement. Nowhere does
Plaintiff claim that he did not settle with these Defendants or that the terms of the
settlements are unenforceable. The Meenen Defendants made a mistake when they first
filed the document, which they corrected in filing their Reply. This is not evidence of
bad faith, as Plaintiff contends, and he is not entitled to costs and attorney’s fees for this
mistake.

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Plaintiff alleges that Procopio is now “reprehensibly attempting to collect” these
attorneys’ fees from Bribiesca, which were billed “while representing parties adverse to
Dr. Bribiesca in the” State Court Action. (Compl. ¶ 47.)
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to petition the California Supreme Court for review. (Notice of California Supreme

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Court’s denial of Bribiesca’s Petition for Review dated Dec. 10, 2014, Procopio & PPI

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NOL Ex. 4.)

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Subsequently, Plaintiff filed documents in state trial and appellate courts seeking to

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recuse Judge Trapp. On November 20, 2015, Plaintiff filed a Notice of Appeal

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concerning Judge Trapp’s failure to recuse herself for bias. (Notice of Appeal, J. Trapp

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RJN Ex. 6.)8 A few days later, on December 2, 2015, Plaintiff filed a document in the

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Superior Court entitled “Notice to stay pending appeal,” in which he alleged that Judge

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Trapp was prejudiced against him and that he could not have fair and impartial

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proceedings before her. (Notice to Stay Pending Appeal, J. Trapp RJN Ex. 4.) Judge

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Trapp treated the notice as a Statement of Disqualification filed under California Code of

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Civil Procedure sections 170.1 and 170.3 and, on December 7, 2015, issued an order

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striking the document on the basis that it was untimely and failed to state any legal basis

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for disqualification. (Order Striking Plaintiff’s Statement of Disqualification of Judge

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Randa Trapp, J. Trapp RJN Ex. 5.) Later, on February 19, 2016, the Court of Appeal

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concluded that Plaintiff had not sought review of an appealable order. (Court of Appeal

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Docket, J. Trapp RJN Ex. 7.) The Court of Appeal exercised its discretion to treat the

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appeal as a petition for writ of mandate and, upon consideration of the state court hearing

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transcript and Plaintiff’s appeal brief, denied the petition. (Id.)

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On May 23, 2016, Plaintiff filed the present lawsuit. Plaintiff now brings RICO

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claims against the Defendants in the State Court Action, as well as several other people

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and entities tangentially involved in the underlying events. He contends that several

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criminal enterprises exist. First, he names the “Procopio Criminal Enterprise,” which

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Defendant Judge Trapp requests that the Court take judicial notice of certain court
filings from the State Court Action and related appeals. (ECF No. 10-2.) The Court
GRANTS her request. Additionally, Defendants Kalish and Giritsky seek judicial notice
of court records from the State Court Action and related appeals. (ECF Nos. 11-1, 12-2,
21-3.) The Court GRANTS those requests.
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consists of Procopio, Salter, Tyrell, Pacific Perfusion, La Jolla Perfusion, Julien, Colavin,

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Meenen, Brinkman, and Defendant Jennifer Foes.9 (Compl. ¶ 121.) The purpose of the

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Procopio Criminal Enterprise is “to act as or on behalf of Dr. Bribiesca despite having

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conflicts of interest in being adversarial to Dr. Bribiesca in the” State Court Action. (Id.

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¶ 122.)
The second criminal enterprise is the “Scripps La Jolla-San Diego County-San

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Diego County Sheriff’s Department Criminal Enterprise” (hereinafter “Scripps-County

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Criminal Enterprise”). This criminal enterprise consists of Van Gorder, Fybel, Thakur,

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Defendant Brad Ellis,10 Defendant Sheriff William D. Gore,11 Deputy Larry Trapp,12

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Judge Trapp, Scripps La Jolla, Scripps Health, Defendant County of San Diego, and the

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San Diego County Sheriff’s Department. (Id. ¶ 123.) He contends that the purpose of

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this enterprise is “to consolidate and protect the interests of Scripps La Jolla and its

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enterprise members by use of San Diego County Sheriff’s Department, its Sheriff,

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[Defendant] Sheriff Gore, and its numerous deputies, including Mr. Van Gorder, and his

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subordinates, including Mr. Fybel, Ms. Thakur, Mr. Peterson, and each administrative

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and medical staff employee, agent, or contractor of Scripps” and “to conspire to cover up

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the fraudulent and wrongful ‘lock out’ scheme and kidnapping of Dr. Bribiesca and

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wrongful usurpation of business opportunities and decades of goodwill established by Dr.

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Bribiesca.” (Id. ¶¶ 124-125.)

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Defendant Foes worked as a subcontractor at La Jolla Perfusion. (Id. ¶ 29.) Julien
allegedly fabricated a written statement by Foes, which he provided to Thakur. (Id. ¶¶
66-67.) The record contains no proof of service as to Foes, and she has not filed a motion
to dismiss.
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Defendant Ellis serves as in-house counsel at Scripps Health and Scripps La Jolla. (Id.
¶ 10.) The Complaint contains no factual allegations about Ellis.
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Defendant Sheriff Gore is the Sheriff of the San Diego County Sheriff’s Department.
(Id. ¶ 20.) There are no allegations about Gore’s personal involvement in any of the facts
in dispute. He is only mentioned as the head of the Sheriff’s Department.
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Deputy Trapp is a Deputy Sheriff in the County of San Diego and Judge Trapp’s
husband. (Id. ¶ 22.)
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Plaintiff also contends that Procopio, Scripps Health, Scripps La Jolla, the County

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of San Diego, the San Diego County Sheriff’s Department, Pacific Perfusion, La Jolla

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Perfusion, and Defendant Razorback Perfusion, Inc.13 constitute enterprises.

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Plaintiff alleges ten claims for relief. His RICO claims are based on the predicate

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acts of mail fraud, wire fraud, honest services fraud, kidnapping, and extortion. The

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Complaint does not specify how the Defendants committed mail, wire, or honest services

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fraud, but instead merely sets forth boilerplate pleading with a formulaic recitation of

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some of the elements of the claims for relief. It appears that the kidnapping allegation

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relates to the events at Scripps La Jolla when Thakur questioned Bribiesca and removed

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him from the hospital. The extortion allegation relates to the Procopio Criminal

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Enterprise’s attempts to collect attorneys’ fees and costs from Bribiesca, fees and costs

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that were billed and awarded by the state courts despite Procopio’s alleged conflict of

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interest.

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He seeks damages arising from lost profits and/or lost business opportunities as a

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result of Defendants’ conduct and an order dissolving each identified enterprise. (Id. ¶¶

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186, 189.)

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of subject

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matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A plaintiff has the burden to establish that

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subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins., Co., 511 U.S. 375,

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377 (1994).
Under Rule 12(b)(1), a jurisdictional attack may be either “facial” or “factual.”

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Thornhill Publishing Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.

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1979). When a defendant challenges jurisdiction “facially,” all material allegations in the

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complaint are assumed true, and the question for the court is whether the lack of federal

26
27
28

13

Defendant Meenen is the President of Defendant Razorback Perfusion, Inc. (Id. ¶¶ 27,
30.) The Complaint contains no factual allegations about Razorback Perfusion.
12
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jurisdiction appears from the face of the pleading itself. Id. In a factual attack, the

2

“defendant disputes the truth of the allegations that, by themselves, would otherwise

3

invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

4

Cir. 2004). In considering a factual attack, the “court may look beyond the complaint to

5

matters of public record without having to convert the motion into one for summary

6

judgment.” White v. Lee, 227 F.3d 1213, 1242 (9th Cir. 2000). The court “need not

7

presume the truthfulness of the plaintiff’s allegations.” Id. Once the moving party has

8

converted the motion to dismiss into a factual motion by presenting affidavits or other

9

evidence properly brought before the court, the party opposing the motion must furnish

10

affidavits or other evidence necessary to satisfy its burden of establishing subject matter

11

jurisdiction. Safe Air for Everyone, 373 F.3d at 1039.

12

DISCUSSION

13

Plaintiff’s Complaint contains rambling allegations of an implausible conspiracy

14

and the wrongs done to him by the twenty-seven Defendants. His Complaint is replete

15

with pleading deficiencies and fatal legal flaws. He has sued defendants he has alleged

16

no facts regarding, he has sued defendants immune from suit, and he fails to state non-

17

conclusory facts to support his claims, among other problems. Having failed to win in

18

state court in an action based on the same underlying facts, Plaintiff now alleges a vast

19

conspiracy against him, unsupported by facts. Plaintiff’s Complaint is an improper

20

attempt to relitigate issues he lost on in the State Court Action. Accordingly, this Court

21

lacks subject matter jurisdiction to hear such a de facto appeal. Because the Court

22

concludes it lacks jurisdiction, it need not address the other arguments raised by

23

Defendants.

24

///

25

///

26

///

27

///

28

///
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I.

This Court Lacks Subject Matter Jurisdiction

2

A. The Rooker-Feldman Doctrine

3

The Rooker-Feldman doctrine14 prevents federal district courts from exercising

4

subject matter jurisdiction over cases “brought by state-court losers complaining of

5

injuries caused by state-court judgments rendered before the district court proceedings

6

commence and inviting district court review and rejection of those judgments.” Exxon

7

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine bars a

8

district court from exercising jurisdiction not only over an action explicitly styled as a

9

direct appeal, but also over de facto appeals. Cooper v. Ramos, 704 F.3d 772, 777 (9th

10

Cir. 2012). “It is a forbidden de facto appeal under Rooker-Feldman when the plaintiff in

11

federal district court complains of a legal wrong allegedly committed by the state court,

12

and seeks relief from the judgment of that court.” Noel v. Hall, 341 F.3d 1148, 1163 (9th

13

Cir. 2003).

14

Once a federal plaintiff seeks to bring a forbidden de facto appeal, the federal

15

plaintiff may not seek to litigate an issue that is “inextricably intertwined” with the state

16

court judicial decision from which the de facto appeal is brought. Id. at 1158. “[C]laims

17

raised in the federal court action are ‘inextricably intertwined’ with the state court’s

18

decision” when “adjudication of the federal claims would undercut the state ruling or

19

require the district court to interpret the application of state laws or procedural rules.”

20

Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003); see also Cooper, 704 F.3d at

21

779 (“[W]e have found claims inextricably intertwined where the relief requested in the

22

federal action would effectively reverse the state court decision or void its ruling.”).

23

Under such circumstances, “the federal complaint must be dismissed for lack of subject

24

matter jurisdiction.” Bianchi, 334 F.3d at 898.

25
26
27
28

The Rooker-Feldman doctrines takes its name from the Supreme Court’s decisions in
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
14

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B. Application of Rooker-Feldman

2

Plaintiff has brought a forbidden de facto appeal and claims that are “inextricably

3

intertwined” with the state court’s judgment. He seeks a federal court “win” on the same

4

issues that he already lost on in state court. The Rooker-Feldman bars such claims.

5

Plaintiff’s claims against Judge Trapp are a “pure horizontal appeal of the state

6

court’s decision.” Cooper, 704 F.3d at 779. Both of the elements of a de facto appeal are

7

present. First, it is clear that Plaintiff “complains of a legal wrong allegedly committed

8

by the state court.” Noel, 341 F.3d at 1163. Throughout his Complaint, Plaintiff

9

explicitly attacks Judge Trapp’s rulings, contending, for example, that she “granted many

10

of [Defendants’] motions improperly,” “inexplicably denied [Plaintiff’s] motion in

11

limine, . . . depriving [Plaintiff] of an ability to call . . . a witness at trial, placing highly-

12

relevant, corroborative testimony out of reach of [Plaintiff],” “inexplicably denied

13

[Plaintiff’s] motion in limine despite the clear-inadmissibility of . . . ‘statements’ and

14

unavailability of [a witness] for cross-examination” and granted Defendants’ motions in

15

limine that “impacted [Plaintiff’s] opportunity to present evidence which would have

16

greatly improved his chances to prevail at trial.” (Compl. ¶¶ 102, 107, 109.) Plaintiff

17

pleads that, because of these improper rulings, “the trial was polluted by oceans of highly

18

prejudicial double and triple hearsay, rumor, innuendo, and inauthentic ‘evidence’ at trial.

19

Such highly-irregular evidentiary decisions greatly prejudiced [Plaintiff’s] case before the

20

jury, leading to an unfavorable outcome.” (Id. ¶ 108.) He alleges that Judge Trapp was

21

conflicted and should have recused herself, but did not, instead “making the biased

22

rulings . . . , depriving [Plaintiff] of due process and impartial tribunal.” (Id. ¶¶ 116,

23

117.) At heart, Plaintiff’s claimed injury is that he was denied an impartial trial because

24

of Judge Trapp’s, as well as Procopio’s, conflicts of interest. (See Corr. Comb. Opp’n at

25

15 (admitting that the Complaint is “focused primarily on (1) Procopio, Salter, and

26

Tyrell’s breach of fiduciary duty based on the plain conflict of interest in representing a

27

party adverse to their own client, and (2) Judge Trapp’s similar breach of fiduciary duty

28

and deprivation of due process by presiding over a trial in which her husband’s
15
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employer—the County/Sheriff’s Department—was closely integrated with to [sic] a

2

party-defendant—Van Gorder/Scripps.”))

3

Second, Plaintiff seeks relief from the state court judgment. Noel, 341 F.3d at

4

1163. In the State Court Action, Plaintiff sought damages for past and future lost

5

earnings. (Procopio & PPI NOL, Ex. 2.) But, he was denied all relief and ordered to pay

6

attorneys’ fees and costs to the prevailing defendants. Here, Plaintiff seeks to escape

7

those obligations and to overturn the state court judgment. He asks this Court to review

8

the same facts litigated in the State Court Action and to award him damages “arising

9

from lost profits and/or lost business opportunities attributable to the activities engaged in

10

by defendants.” (Compl. ¶ 186.) His RICO claim based on extortion is aimed at

11

avoiding paying the attorneys’ fees and costs awarded in the State Court Action.

12

Plaintiff’s remaining claims against the other Defendants are inextricably

13

intertwined with the state court’s decision. Plaintiff alleges, based on Judge Trapp’s

14

conflict involving Scripps and the Sheriff’s Department that allegedly prejudiced her

15

against him, that the Scripps-County Criminal Enterprise15 “conspired to cover up the

16

fraudulent and wrongful ‘lock out’ scheme and kidnapping of [Plaintiff] and wrongful

17

usurpation of business opportunities.” (Compl. ¶ 125.) However, the state courts have

18

already decided the issues underlying the claims against the Scripps-County Enterprise.

19

Plaintiff has twice sought to recuse Judge Trapp based on allegations of bias towards

20

him, and both attempts have been unsuccessful. Further, the state courts ruled against

21

Plaintiff on the issues that he alleges are at the heart of the enterprise: the lock-out

22

scheme, kidnapping, and usurpation of business opportunities. Plaintiff’s first, second,

23

third, fourth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth claims in the State

24

Court Action were based on the lock-out scheme. (Procopio & PPI NOL, Ex. 2.)

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26
27
28

15

As a reminder, the Scripps-County Criminal Enterprise consists of Defendants Van
Gorder, Fybel, Thakur, Ellis, Gore, Deputy Trapp, Judge Trapp, Scripps La Jolla, Scripps
Health, County of San Diego, and non-defendant San Diego County Sheriff’s
Department. (Compl. ¶ 123.)
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Plaintiff admits that the lock out scheme allegations proceeded to trial in the State Court

2

Action. (Compl. ¶ 104.) The kidnapping allegation also arose in the State Court Action.

3

The trial court denied Plaintiff leave to amend to add a false imprisonment claim,16 and

4

the Court of Appeal affirmed that decision. (Procopio & PPI NOL, Ex. 3.) Finally,

5

Plaintiff’s allegation of usurped business opportunities (i.e., his lost contract with Scripps

6

La Jolla) was litigated in the eleventh and twelfth claims in the State Court Action.

7

(Procopio & PPI NOL, Ex. 2.) As noted, Plaintiff lost on all claims in the State Court

8

Action and the judgment was affirmed by the Court of Appeal. To credit Plaintiff’s new

9

RICO claims based on the same allegations litigated and rejected by state trial and

10

appellate courts is just another way of saying that “the state court wrongly decided the

11

issues before it.” Cooper, 704 F.3d at 783 (quoting other case).
The claims related to the Procopio Criminal Enterprise17 are also inextricably

12
13

intertwined with the Superior Court’s decisions. The Procopio Criminal Enterprise is

14

based on Procopio’s alleged conflicts of interest. (Compl. ¶ 122.) But Plaintiff alleges

15

no injury from this conflict beyond his loss at trial and attendant court-ordered obligation

16

to pay attorneys’ fees and costs. To consider the RICO claims against the Procopio

17

Criminal Enterprise and assess Plaintiff’s injury, the Court would have to revisit and

18

reverse Judge Trapp’s rulings on pre-trial and post-trial motions and at trial.

19

Accordingly, the RICO claims are inextricably intertwined with the merits of the state

20

court’s decision and are effectively a prohibited appeal of the state court judgment.

21
22
23
24
25
26
27
28

Under California law, the proper civil claim for relief for “kidnapping” is the tort claim
for false imprisonment. Chipman v. Nelson, No. 2:11-cv-2770, 2013 WL 1007285, at
*17 n.8 (E.D. Cal. Mar. 13, 2013.)
17
The Procopio Criminal Enterprise consists of Procopio, Salter, Tyrell, Pacific
Perfusion, La Jolla Perfusion, Julien, Colavin, Meenen, Brinkman, and Foes. (Compl. ¶
121.) Notably, the Enterprise includes non-attorneys and Defendants who played no role
in Procopio’s representation of the PPI Defendants. Nowhere does Plaintiff explain how
such individuals could plausibly have participated in such an enterprise, the purpose of
which was “to act as or on behalf of Dr. Bribiesca despite having conflicts of interest in
being adversarial to Dr. Bribiesca” in the State Court Action. (Id. 122.)
16

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Perhaps realizing that the Rooker-Feldman doctrine bars the review he seeks,

2

Plaintiff relies on Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004), and argues

3

that Rooker-Feldman is inapplicable because he asserts new claims based on extrinsic

4

fraud. Kougasian explained that Rooker-Feldman bars subject matter jurisdiction when

5

“a federal plaintiff both asserts as her injury legal error or errors by the state court and

6

seeks as her remedy relief from the state court judgment.” 359 F.3d at 1140 (emphasis in

7

original). In Kougasian, the Ninth Circuit held that Rooker-Feldman did not apply

8

because the plaintiff did not allege that she had been harmed by legal errors made by the

9

state court. See id. at 1140-41. Rather, the plaintiff alleged extrinsic fraud on the state

10

court—specifically, defendants submitted a false declaration in state court and refused to

11

supply contact information for the declarant, preventing plaintiff from challenging the

12

declaration, and the court based its judgment on the declaration. See id. at 1138-39. The

13

Ninth Circuit explained that “[e]xtrinsic fraud is conduct which prevents a party from

14

presenting his claim in court.” Id. at 1140. With regard to the Rooker-Feldman doctrine,

15

the court reasoned that a “plaintiff alleging extrinsic fraud on a state court is not alleging

16

a legal error by the state court; rather, he or she is alleging a wrongful act by the adverse

17

party.” Id. at 1140-41.

18

Despite Plaintiff’s protests, Kougasian is consistent with the Court’s conclusion

19

that it lacks jurisdiction. In this case, unlike in Kougasian, Plaintiff claims injury from

20

errors committed by the state court and seeks relief from that judgment. That is,

21

Bribiesca brings a de facto appeal, unlike the plaintiff in Kougasian. Thus, Kougasian is

22

inapposite.

23

Moreover, Plaintiff has not stated any claim for extrinsic fraud. Plaintiff alleges

24

extrinsic fraud based on Procopio and Judge Trapp’s conflicts. (Comb. Corr. Opp’n at

25

15.) As noted, “[e]xtrinsic fraud is conduct which prevents a party from presenting his

26

claim in court.” Kougasian, 359 F.3d at 1140. The “essential characteristic” of extrinsic

27

fraud is that the “successful party has by inequitable conduct, either direct or insidious in

28

nature, lulled the other party into a state of false security, thus causing the latter to refrain
18
3:16-cv-01225-BEN-WVG

1

from appearing in court or asserting legal rights” or “from fully participating in the

2

proceeding.” Gibble v. Car-Lene Research, Inc., 67 Cal. App. 4th 295, 314 (1998)

3

(citation omitted). “Examples of extrinsic fraud are: concealment of the existence of a

4

community property asset, failure to give notice of the action to the other party,

5

convincing the other party not to obtain counsel because the matter will not proceed (and

6

it does proceed).” Id. at 315 (citation omitted). “On the other hand, [f]raud is intrinsic

7

and not a valid ground for setting aside a judgment when the party has been given notice

8

of the action and has had an opportunity to present his case and to protect himself from

9

any mistake or fraud of his adversary, but has unreasonably neglected to do so.” Id.

10

(citation omitted).

11

Here, Plaintiff fully participated in the proceedings in the state courts. He fails to

12

state that he was prevented from presenting any claims or defenses in the State Court

13

Action because of the alleged conflicts of Judge Trapp and Procopio. By Plaintiff’s own

14

allegations, he was aware that Procopio was adverse to him during the State Court

15

Action, yet he did nothing to question or contest its representation of certain Defendants.

16

At most, he raises issues of intrinsic fraud.18 As to Judge Trapp’s alleged conflict,

17

Plaintiff did seek to recuse her for being prejudiced against him, but failed. When

18

extrinsic fraud allegations are separately litigated in state court, the extrinsic fraud

19

exception to the Rooker-Feldman doctrine does not apply. See Reusser v. Wachovia

20

Bank, N.A., 525 F.3d 855, 859-60 (9th Cir. 2008).

21

Plaintiff also seeks to avoid Rooker-Feldman by arguing that the state court

22

judgment was void due to Judge Trapp’s undisclosed conflict. He cites noncontrolling

23

authority in support of his argument that void judgments are not subject to the Rooker-

24

Feldman doctrine. Plaintiff is wrong. “Rooker–Feldman applies [even] where the

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26
27
28

18

Even if Plaintiff raises plausible issues of a conflict of interest involving Procopio—
which this Court does not decide—the proper avenue to make such allegations is a state
court claim, not a federal RICO claim.
19
3:16-cv-01225-BEN-WVG

1

plaintiff in federal court claims that the state court did not have jurisdiction to render a

2

judgment.” Doe v. Mann, 415 F.3d 1038, 1042 (9th Cir. 2005); see Fletcher v. Gilbert,

3

262 F. App’x 791, 791 (9th Cir. 2007) (rejecting plaintiff’s argument that “the Rooker–

4

Feldman doctrine should not apply because the state court lacked subject matter

5

jurisdiction and rendered a void judgment”).

6

Finally, Plaintiff argues that his new federal RICO claims, unlitigated state law

7

claims, and attorney misconduct claims are not subject to Rooker-Feldman. They are.

8

All of Plaintiff’s claims are barred because they are inextricably intertwined with his de

9

facto appeal of the state court’s judgment.19
Artful pleading will not save Plaintiff’s federal complaint. However Plaintiff

10
11

attempts to characterize his claims now, the Complaint and history of the State Court

12

Action make clear that his Complaint is grounded on claims of legal error with which he

13

disagrees. This Court could not rule on any of Plaintiff’s RICO claims without implicitly

14

overruling Judge Trapp, the state court jury, and the California Court of Appeal.20

15

Plaintiff has not carried his burden to demonstrate this Court has subject matter

16

jurisdiction. Therefore, the entire action is dismissed.

17

CONCLUSION

18
19

The Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine.
Accordingly, the Court GRANTS Defendants’ motions to dismiss and DISMISSES the

20
21
22
23
24
25
26
27
28

19

Additionally, the unlitigated state law claim that Plaintiff raises—one for kidnapping—
was litigated in the State Court Action. The Superior Court denied Plaintiff leave to
amend to add a claim for false imprisonment, and the Court of Appeal affirmed that
decision.
20
Unsurprisingly, other plaintiffs have brought RICO claims in federal court, alleging
that defendants defrauded them in state court. Federal courts have held that those RICO
claims are barred by the Rooker-Feldman doctrine. See, e.g., McDowell v. California,
No. C 11-02569 CRB, 2011 WL 6141045, at *3-4 (N.D. Cal. Dec. 9, 2011) (“RICO
claims constitute a de facto appeal of state court decision and are barred by the RookerFeldman doctrine.”); Bounds v. Wells Fargo Bank Minnesota, No. 02 C 9010, 2003 WL
21466939, at *2-3 (N.D. Ill. June 25, 2003).
20
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1

action. (ECF Nos. 5, 10, 11, 13, 15, 21, 23, and 44.) The Court DENIES Defendant

2

Kalish’s request for attorneys’ fees under his anti-SLAPP motion to strike (ECF No. 12)

3

because it lacks jurisdiction to consider the issue. See Stahl Law Firm v. Judicate West,

4

No. C13-1668 TEH, 2013 WL 6200245, at *7 (N.D. Cal. Nov. 27, 2013) (denying

5

defendants’ motions for prevailing party anti-SLAPP attorneys’ fees because court lacked

6

subject matter jurisdiction). The Court OVERRULES and DENIES Plaintiff’s

7

Objections and Motion to Strike Exhibits to Meenen Defendants’ Motion to Dismiss and

8

Reply. (ECF No. 43.)

9
10

IT IS SO ORDERED.
Dated: January 10, 2017

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