Guinn v. Apartment Owners Association of Makaha Valley Towers Board of Directors et al

Filing 56

ORDER DISMISSING AMENDED VERIFIED COMPLAINT FOR LACK OF JURISDICTION AND FOR FAILURE TO STATE A CLAIM (ECF No. 28 , 36 , 41 , 42 , 43 , 49 ). Signed by JUDGE HELEN GILLMOR on 2/27/2015. ~ The Amended Verified Complaint is DISMISS ED WITH PREJUDICE in its entirety as to the Association of Apartment Owners of Makaha Valley Towers, Fred Weick, Ted Pond, Joanna Miranda, and Certified Management, Inc. dba Associa Hawaii. The Amended Verified Complaint is vDISMISSED WITH PREJU DICE in its entirety as to Anderson Lahne & Fujisaki, LLC and Amber D. Garcia. The Amended Verified Complaint is DISMISSED WITH PREJUDICE in its entirety as to Ocwen Loan Servicing, LLC, Mortgage Electronic Registration Systems, Inc., and HSBC Ban k USA, National Association, As Trustee for the Registered Holders of Nomura Home Equity Loan, Inc. Asset Backed Certificates, Series 2007-2. Wuick or Quick Loan Funding. The Amended Verified Complaint is DISMISSED WITH PREJUDICE in its entirety as t o Wuick or Quick Loan Funding. The Amended Verified Complaint is DISMISSED WITH PREJUDICE in its entirety as to the Honorable Bert I. Ayabe. Plaintiff is DENIED leave to file a second amended complaint. If Plaintiff has claims that are not barred b y the Rooker-Feldman doctrine, she may file a new case to bring such claims. The Clerk of Court is directed to close this case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HEP Y. GUINN, and individual, on )
behalf of themselves and all
)
others similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
)
APARTMENT OWNERS ASSOCIATION OF )
MAKAHA VALLEY TOWERS BOARD OF
)
DIRECTORS; FRED WEICK,
)
PRESIDENT, TED POND, VICE
)
PRESIDENT, JOANNA MIRANDA, ON
)
SITE GENERAL MANAGER-INDIVIDUAL )
RESPONSIBLE FOR IMPLEMENTING
)
ACCESS POLICY FOR SERVICE OF
)
PROCESS; CERTIFIED MANAGEMENT,
)
INC., DBA ASSOCIA HAWAII; AMBER )
D. GARCIA, ANDERSON LAHNE &
)
FUJISAKI LLP, ATTORNEYS FOR THE )
APARTMENT OWNERS ASSOCIATION OF )
MAKAHA VALLEY TOWERS, FIRST
)
CIRCUIT COURT JUDGE BERT I.
)
AYABE; HSBC BANK USA, NATIONAL
)
ASSOCIATION, AS TRUSTEE, FOR THE )
REGISTERED HOLDERS OF NOMURA
)
HOME EQUITY LOAN, INC. ASSET)
BACKED CERTIFICATES, SERIES
)
2007-2, MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.;
)
WUICK LOAN FUNDING; OCWEN LOAN
)
SERVICING, LLC; ALL PERSONS,
)
CORPORATIONS, ENTITY UNKNOWN,
)
CLAIMING ANY LEGAL OR EQUITABLE )
RIGHT, TITLE, ESTATE, LIEN, OR
)
INTEREST IN THE PROPERTY
)
DESCRIBED IN THE COMPLAINT
)
ADVERSE TO PLAINTIFF’S TITLE, OR )
ANY CLOUD ON PLAINTIFF’S TITLE
)
THERETO AND DOWS 1 THROUGH 50,
)
INCLUSIVE,
)
)
Defendants.
)
1

CIV. NO. 14-00474 HG-RLP

ORDER DISMISSING AMENDED
VERIFIED COMPLAINT FOR LACK OF
JURISDICTION AND FOR FAILURE
TO STATE A CLAIM (ECF No. 28,
36, 41, 42, 43, 49)

ORDER DISMISSING AMENDED VERIFIED COMPLAINT FOR LACK OF
JURISDICTION AND FOR FAILURE TO STATE A CLAIM (ECF No. 28, 36, 41,
42, 43, 49)
This case arises out of a state court foreclosure action
brought by Defendant Association of Apartment Owners of Makaha
Valley Towers against the owners of a condominium unit at Makaha
Valley Towers.

Plaintiff Hep Y. Guinn obtained title to the unit

from the owners by warranty deed and was added as a defendant to
the state court foreclosure action.
The Honorable Bert I. Ayabe, Judge of the First Circuit
Court, State of Hawaii presided over the foreclosure action.
Plaintiff’s Amended Verified Complaint asks this Court to
exercise what amounts to appellate review over the state court
foreclosure action.
For the reasons set forth below, the Court lacks subject
matter jurisdiction over Plaintiff’s claim as pled because of the
Rooker-Feldman doctrine.

See Henrichs v. Valley View Development,

474 F.3d 609, 613 (9th Cir. 2007) (citing Rooker v. Fidelity Trust
Co., 263 U.S. 413, 415-16 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-86 (1983)).

The Court also

does not have jurisdiction because Plaintiff has failed to allege
a basis for federal jurisdiction.

Even if the Complaint had

sufficient allegations to establish federal jurisdiction,
Plaintiff’s Amended Verified Complaint fails to state a claim
2

against any of the Defendants.

PROCEDURAL HISTORY
On October 17, 2014, Plaintiff Hep Y. Guinn1 filed a Verified
Complaint against Defendants Association of Apartment Owners of
Makaha Valley Towers (hereinafter, “AOAO”)2, Fred Weick (“Weick”),
Ted Pond (“Pond”), Joanna Miranda (“Miranda”), Certified
Management, Inc. dba Associa Hawaii (hereinafter “Associa”),
Anderson Lahne & Fujisaki, LLC, Amber D. Garcia (“Garcia”), the
Honorable Bert I. Ayabe, Ocwen Loan Servicing, LLC (“Ocwen”),
Mortgage Electronic Registration Systems, Inc. (“MERS”), Quick
Loan Funding, and HSBC Bank USA, National Association, As Trustee
for the Registered Holders of Nomura Home Equity Loan, Inc. Asset
Backed Certificates, Series 2007-2 (“HSBC”). (ECF No. 1.)
Plaintiff’s Verified Complaint is 54 pages and, according to the
1

In the caption, Plaintiff purports to bring the action as
“an individual, on behalf of themselves and all other similarly
situated.” Similar language is found in class action complaints.
Plaintiff does not otherwise indicate that she intends the case
to be a class action. Nor does she state grounds to bring it as
one.
Plaintiff also names “Wuick Loan Funding” which she may have
intended to be “Quick Loan Funding” as named in her original
Verified Complaint. There also appears to be a typographical
error naming “DOWS” instead of “DOES”.
2

Plaintiff’s Verified Complaint names the Apartment Owners
Association of Makaha Valley Towers Board of Directors as a
defendant. The apartment owners association states that it
should be identified as the Association of Apartment Owners of
Makaha Valley Towers. (Motion to Strike, ECF No. 41.)
3

caption, contains 27 counts and a jury trial demand.
On November 7, 2014, Defendants AOAO, Weick, Pond, Miranda,
and Associa filed a Motion for a More Definite Statement. (ECF No.
16.)
On November 21, 2014, Defendants Anderson Lahne & Fujisaki,
LLC and Garcia filed a motion to join Defendants AOAO, Weick,
Pond, Miranda, and Associa’s motion for a more definite statement.
(ECF No. 22.)
On November 21, 2014, Defendant Ocwen filed a Motion for a
More Definite Statement. (ECF No. 24.)
The Magistrate Judge set a briefing schedule for the motions
for a more definite statement and joinder.
On November 26, 2014, The Honorable Bert I. Ayabe filed a
Motion to Dismiss with Prejudice Verified Complaint for Damages
and Injunctive Relief.

(ECF No. 28.)

On November 28, 2014, the Court issued a Minute Order setting
a briefing schedule for Judge Ayabe’s motion to dismiss.

(ECF No.

29.)
On December 8, 2014, Plaintiff sent a letter to the
Magistrate Judge requesting an extension of time to oppose the
motions for a more definite statement, which was granted. (ECF No.
30, 31.)
On December 9, 2014, Plaintiff filed an Amended Verified
Complaint. (ECF No. 35.) Plaintiff’s Amended Verified Complaint is

4

against the same Defendants, is 9 pages in length, and, according
to the caption, contains 30 counts and a jury trial demand.
On December 22, 2014, Plaintiff filed responses to
Defendants’ motions for a more definite statement and for joinder.
(ECF No. 38, 39.)
On December 23, 2014, Defendants Anderson, Lahne & Fujisaki,
LLC, and Garcia filed a Motion to Dismiss Amended Verified
Complaint.

(ECF No. 36.)

On December 23, 2014, Defendants Anderson, Lahne & Fujisaki,
LLC, and Garcia also filed a Request for Judicial Notice in
support of their Motion. (ECF No. 37.)
On December 23, 2014, Defendants AOAO, Weick, Pond, Miranda,
and Associa filed a Motion to Strike Amended Verified Complaint
for Damages and Declaratory and Injunctive Relief, Filed December
9, 2014, or Alternatively, to Dismiss Count 2. (ECF No. 41.)
On December 23, 2014, Defendant Associa filed a separate
Motion to Dismiss Amended Verified Complaint. (ECF No. 42.)
On December 29, 2014, the Honorable Bert I. Ayabe filed a
Motion to Dismiss with Prejudice the Amended Verified Complaint.
(ECF No. 43.)
On December 29, 2014, the Magistrate Judge denied Defendants
motions for a more definite statement and the joinders thereto as
moot in light of Plaintiff’s Amended Verified Complaint, filed
December 9, 2014. (ECF No. 44.)

The Magistrate Judge indicated

5

that the Defendants could respond to Plaintiff’s Amended Verified
Complaint through the appropriate motion or pleading.
On December 29, 2014, Plaintiff filed a Memorandum in
Opposition to Defendants’ motions to dismiss and/or strike. (ECF
No. 46.)
On January 2, 2015, Defendants Ocwen, MERS, and HSBC filed a
Motion for Substantive Joinder in the Honorable Bert I. Ayabe’s
Motion to Dismiss with Prejudice Amended Verified Complaint.

(ECF

No. 49.)
Neither MERS nor HSBC has been served with the initial (ECF
No. 1) or amended (ECF No. 35) complaints.

As stated in their

motion for substantive joinder, they make only a special
appearance in the matter. (ECF No. 49.)
Defendant “Wuick” or “Quick” Loan Funding has also not been
served.

It does not make a special appearance.

On January 5, 2015, Plaintiff filed an Amended Memorandum in
Opposition to Defendant the Honorable Bert I. Ayabe’s Motion to
Dismiss with Prejudice Amended Verified Complaint for Damages and
Declaratory Relief, filed on December 9, 2014. (ECF No. 50.)
On January 12, 2015, Plaintiff filed a Memorandum in
Opposition to Ocwen Defendants’ Substantive Joinder in Defendant
the Honorable Bert I. Ayabe’s Motion to Dismiss with Prejudice
Amended Verified Complaint for Declaratory and Injunctive Relief,
filed on December 9, 2014. (ECF No. 51.)

6

On January 20, 2015, Defendants Ocwen, MERS, and HSBC filed a
reply in support of their substantive joinder.

(ECF No. 53.)

On January 20, 2015, the Honorable Bert I. Ayabe filed a
reply in support of his motion to dismiss. (ECF No. 54.)

BACKGROUND

Plaintiff challenges state court proceedings which resulted
in the foreclose of her condominium unit.
A.

State Court Proceedings and Transfer of Condominium Unit to
Plaintiff
On October 23, 2012, the Association of Apartment Owners of

Makaha Valley Towers (“AOAO”) filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii against Defendants
James Joseph Eiring, Madeleine Mercer Eiring, and HSBC Bank USA,
National Association.

(Request for Judicial Notice at Exh. 1, ECF

No. 37-2, Association of Apartment Owners of Makaha Valley Towers
v. Eiring et al., Civ. No. 12-1-2621-10 BIA.)3

The AOAO sought

foreclosure on the grounds that the Eirings were delinquent in
paying their common expenses and other sums due the AOAO. (Id.)

3

The Court grants Defendants Anderson, Lahne & Fujisaki, LLC
and Garcia’s Request for Judicial Notice (ECF No. 37) and takes
judicial notice of the state court filings, attached to the
request for judicial notice, as matters of public record. See
Fed. R. Evid. 201(b)(1)-(2); Reyn’s Pasta Bella, LLC v. Visa USA,
Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
7

Defendant HSBC Bank, USA also filed a foreclosure complaint in
state court against the Eirings.

(Request for Judicial Notice at

Exh. 1, ECF No. 37-2.)
The Eirings owned the condominium unit prior to Plaintiff.
On March 5, 2013, the Eirings executed a Warranty Deed conveying
the condominium unit to Plaintiff Guinn. (Request for Judicial
Notice at Exh. 2, ECF No. 37-3.)

The Warranty Deed was recorded

on May 2, 2013. (Id.)
On May 13, 2013, the Honorable Bert I. Ayabe of the Circuit
Court of the First Circuit of the State of Hawaii, entered summary
judgment and a decree of forfeiture in favor of the
AOAO against James Joseph Eiring and Madeline Mercer Eiring.
(Request for Judicial Notice at Exh. 2, ECF No. 37-3, Affidavit of
Counsel.)
On August 29, 2013, after the foreclosure judgment, the state
court entered an order granting the AOAO’s motion to identify
Plaintiff Guinn as Jane Doe 1 to Plaintiff’s Complaint.
for Judicial Notice at Exh. 2, ECF No. 37-3.)

(Request

Pursuant to the

order, Plaintiff Guinn was to be served with a copy of the order
along with the complaint and summons filed in the foreclosure
action against the Eirings.

(Id.)

Based upon the exhibits attached to Plaintiff’s Amended
Verified Complaint, during February 2014, Plaintiff attempted to
negotiate a payment plan with the AOAO, through its law firm,

8

Defendant Anderson Lahne & Fujisaki LLP and its attorney Amber D.
Garcia, in an effort to pay off the amount owed the AOAO by the
Eirings as prior owners. (ECF No. 35.)

The negotiations were

unsuccessful.
On July 9, 2014, the state court issued a writ of possession
for the condominium unit in favor of the AOAO, commanding removal
of Plaintiff Guinn and the Eirings. (Request for Judicial Notice
at Exh. 4, ECF No. 37-5.)
B.

Plaintiff’s Verified Complaint
On October 17, 2014, Plaintiff Guinn filed a Verified

Complaint against the AOAO, Fred Weick and Ted Pond (AOAO board
members), Joanna Miranda (general manager), Associa (the
management company), Anderson Lahne & Fujisaki, LLC and Amber D.
Garcia (the AOAO’s attorneys), the Honorable Bert I. Ayabe (the
state court judge), and Ocwen Loan Servicing, LLC, Mortgage
Electronic Registration Systems, Inc., Quick Loan Funding, and
HSBC Bank USA, National Association. (ECF No. 1.)

Plaintiff’s

Verified Complaint is 54 pages and, according to the caption,
contains 27 counts and a jury trial demand.

The Verified

Complaint contains allegations pertaining to allegedly fraudulent
conduct by the mortgage industry in general as well as allegations
about transactions that do not appear to have any relationship to
the foreclosure of Plaintiff’s condominium unit or to the
Defendants in this case.
9

As to the foreclosure proceedings, Plaintiff alleges that she
never received notice.

Plaintiff alleges that on July 24, 2014

she received a frantic call from her tenant because she was being
told to vacate the premises.

Plaintiff alleges that she was “in

shock unbeknown to Plaintiff this to be the fact”.
Compl., ¶ 30, p. 32, ECF No. 1.)

(Verified

She alleges that she “never

received notice nor served with proper notification of any hearing
dates.”

(Id.)

Plaintiff’s Verified Complaint goes on to describe

various accusations against Defendants, all pertaining to the
state court foreclosure action.
C.

(Id.)

Plaintiff’s Amended Verified Complaint
On December 9, 2014, Plaintiff filed an Amended Verified

Complaint without obtaining leave of court.

Under Fed. R. Civ. P.

15(a), Plaintiff had until December 2, 2014 to file an amended
complaint without seeking leave of court. Because Plaintiff did
not file her amended complaint until December 9, 2014, she was
required to first seek leave of court.
Leave of court to file a first amended complaint is liberally
granted.

See Petersen v. Boeing Co., 715 F.3d 276, 282 (9th Cir.

2013) (“leave to amend should be granted with extreme liberality”)
(citation and quotations omitted).

Given this lenient standard,

the current posture of the case in which the Magistrate Judge
denied as moot Defendants’ motions for a more definite statement
in light of Plaintiff’s filing of her Amended Verified Complaint,
10

and the fact that Plaintiff’s amended complaint was only seven
days late, the Court declines to strike Plaintiff’s Amended
Verified Complaint for failure to comply with Fed. R. Evid. 15(a).
Accordingly, the Court considers Plaintiff’s Amended Verified
Complaint as the operative complaint.

All Defendants who have

appeared have moved to dismiss the Amended Verified Complaint on
various grounds.
The Amended Verified Complaint names the same Defendants in
the caption as the original complaint.4

It lists 30 counts in the

caption along with a demand for jury trial.

The body of the

complaint, now 9 as opposed to 54 pages, contains no counts and
far fewer factual allegations.

The Verified Amended Complaint

focuses on the allegedly unlawful conduct of Defendants Fred
Weick, Ted Pond, and Joanna Miranda.

Plaintiff also makes

allegations against Amber D. Garcia, the attorney with the law
firm of Anderson Lahne & Fujisaki LLP, who represented the AOAO in
the state court foreclosure action, and against the Honorable Bert
I. Ayabe, the state court judge who presided over the foreclosure
action.
1.

Allegations Against Fred Weick, Ted Pond, and Joanna
Miranda

Plaintiff alleges that Defendant Fred Weick (“Weick”) was the

4

The Court notes the only differences between the caption of
the Verified Complaint and the Amended Verified Complaint in
footnote 1.
11

former director of the AOAO and that Defendant Ted Pond (“Pond”)
was the former president of the AOAO and that both refused to
speak or otherwise communicate with her.
at p. 6-7, ECF No. 35.)

(Amended Verified Compl.

Plaintiff accuses Defendants Weick and

Pond of injuring his investment “by using the reserve fund as his
own personal treasure box to pilfer ginned up legal fees to use as
a fulcrum of favor against his selected targets, and to augment
the reserve fund by incurring unjust and unwarranted expenses
against the investors in this project.”
at p. 6-7, ECF No. 35.)

(Amended Verified Compl.

According to Plaintiff, “[s]uch conduct

is most egregious gross negligence and willful misconduct.” (Id.)
Plaintiff alleges that Defendant Joanna Miranda (“Miranda”)
is the general manager of the Makaha Valley Towers Project.
(Amended Verified Compl. at p. 7, ECF No. 35.)

Plaintiff accuses

Miranda of abusing Plaintiff’s tenant and acting outside of her
job description.

Plaintiff alleges that Miranda relies on

attorney Garcia “as her own personal full-time attorney for
matters unrelated to the operation of the project and thereby
abuses the privilege of legal protection through the Association.”
(Amended Verified Compl. at p. 7, ECF No. 35.)
2.

Allegations Against Attorney Amber D. Garcia

As to Defendant Amber D. Garcia (“Garcia”), Plaintiff takes
issue with Garcia instructing her clients, the AOAO and general
manager, not to speak with Plaintiff as to “all matters regarding
12

[her] investment in this project.”
7, ECF No. 35.)

(Amended Verified Compl. at p.

Plaintiff also alleges that Garcia participated

in some type of unspecified “scheme”. (Id. at p. 3.)
3.

Allegations Against the Honorable Bert I. Ayabe

Plaintiff alleges that Judge Ayabe abused his discretion by
allowing default judgment to be entered against Plaintiff when she
had not been served with notice of the hearings.

(Amended

Verified Compl. at p. 8, ECF No. 35.) Plaintiff also complains
that Judge Ayabe did not fully and properly consider the
foreclosure matter. (Id. at p. 3.)
4.

Allegations Against Other Defendants

The Amended Verified Complaint does not contain any
specific allegations pertaining to the other Defendants named in
the caption.

STANDARD OF REVIEW
Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1)
A case is properly dismissed for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) when the court lacks the
constitutional or statutory power to adjudicate the case. A
challenge to the Court's subject matter jurisdiction may be
“facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). In a facial attack, the “challenger
asserts that the allegations contained in a complaint are

13

insufficient on their face to invoke federal jurisdiction.” Id. In
a factual attack, the “challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal
jurisdiction.” Id.
Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows dismissal
where a complaint fails “to state a claim upon which relief can be
granted.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545
F.3d 1220, 1225 (9th Cir. 2008). The complaint must contain “a
short and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. Rule 8(a)(2). Rule 8 of the

Federal Rules of Civil Procedure “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)(quoting Bell Atlantic Corporation v. Twombly,
550 U.S. 544, 555 (2007)). A pleading must provide “more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action.” The factual allegations in a pleading “must
be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
A complaint survives a motion to dismiss when it contains
sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). A claim is facially plausible
14

when the factual content of the complaint allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard does not require
probability, but it requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556). A complaint that pleads facts that are “merely consistent
with” a defendant’s liability “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id.
(quoting Twombly, 550 U.S. at 557).
When considering a Rule 12(b)(6) motion to dismiss, the Court
must presume all allegations of material fact to be true and draw
all reasonable inferences in favor of the non-moving party. Pareto
v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The Court need not
accept as true, however, allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Daniels-Hall v. Nat'l
Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010)(documents attached
to the complaint and matters of public record may be considered on
a motion to dismiss).

15

ANALYSIS
A.

Lack of Federal Jurisdiction
1.

The Rooker-Feldman Doctrine

Pursuant to the Rooker-Feldman doctrine, federal district
courts lack subject matter jurisdiction to exercise appellate
review over final state court judgments.

Henrichs v. Valley View

Development, 474 F.3d 609, 613 (9th Cir. 2007) (citing Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415-16 (1923) and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86
(1983)).

The Rooker-Feldman doctrine precludes a district court

from reviewing state court judgments because the federal authority
to review a state court judgment lies exclusively with the United
States Supreme Court.

Exxon Mobil Corp. v. Saudi Basic Industries

Corp., 544 U.S. 280, 292 (2005).
A complaint challenging a state court’s factual or legal
conclusion constitutes a forbidden de facto appeal under
Rooker-Feldman.

See Manufactured Home Communities, Inc. v. City

of San Jose, 420 F.3d 1022, 1030 (9th Cir. 2005).

The district

court is not required to determine whether or not the state court
fully and fairly adjudicated the constitutional claim.

Bianchi v.

Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003). “Rooker-Feldman bars
any suit that seeks to disrupt or ‘undo’ a prior state-court
judgment, regardless of whether the state-court proceeding
afforded the federal-court plaintiff a full and fair opportunity
16

to litigate her claims.’”

Id. at 901 (quoting Kenmen Eng'g v.

City of Union, 314 F.3d 468, 478 (10th Cir. 2002)).
There are exceptions to the Rooker-Feldman doctrine.

The

Rooker-Feldman doctrine does not apply to a general constitutional
challenge, meaning one that does not require review of a state
court decision. See Worldwide Church of God v. McNair, 805 F.2d
888, 891 (9th Cir. 1986).

That said, if the federal

constitutional claim is “inextricably intertwined” with a state
court’s judgment, the Rooker-Feldman doctrine does apply to bar
the party’s claim. See Doe & Associates Law Offices v. Napolitano,
252 F.3d 1026, 1029 (9th Cir. 2001) (“If the federal
constitutional claims presented to the district court are
“inextricably intertwined” with the state court's judgment, then
Doe is essentially asking the district court to review the state
court's decision, which the district court may not do.”).
Another exception to the Rooker-Feldman doctrine is where a
plaintiff alleges a cause of action for extrinsic fraud on a state
court.

See Kougasian v. TMSL, Inc. , 359 F.3d 1136, 1140-41 (9th

Cir. 2004).

“Extrinsic fraud is conduct which prevents a party

from presenting his claim in court.” Id. at 1140 (quoting Wood v.
McEwen, 644 F.2d 797, 801 (9th Cir. 1981)).

“Extrinsic fraud on a

court is, by definition, not an error by that court.

It is,

rather, a wrongful act committed by the party or parties who
engaged in the fraud.”

Id. at 1141.

17

The exception does not apply

to allegations of intrinsic fraud.

Dixon v. State Bar of

California,

32 Fed.Appx. 355, 356-357, 2002 WL 461719, at *1 (9th

Cir. 2002).

Intrinsic fraud is fraud that goes to the heart of

the issues that were before the state court.

See Green v.

Ancora–Citronelle, 577 F.2d 1380, 1384 (9th Cir. 1978) (extrinsic
fraud “prevents a party from having an opportunity to present his
claim or defense in court”; it is not fraud that “goes to the very
heart of the issues contested in the state court action”).
2.

The Rooker-Feldman Doctrine Applies

The Rooker-Feldman doctrine applies.

All of the allegations

in Plaintiff’s Amended Verified Complaint seek the Court’s review
of the state court foreclosure action.

Plaintiff’s theory is that

the Association of Apartment Owners of Makaha Valley Towers
(“AOAO”) wrongfully foreclosed on her condominium unit, that the
individual board members of the AOAO engaged in conduct that
injured her property investment, and that the Honorable Bert I.
Ayabe, as the state court judge, improperly entered an order and
judgment foreclosing on her condominium unit.

As one of her

requested remedies, Plaintiff asks that the foreclosure be vacated
and that she be granted title to the property.
Compl. at p. 9, ECF No. 35.)

(Amended Verified

Exercising jurisdiction would

involve review of the state court’s order and judgment.
Plaintiff has not made allegations that fall within an
exception to the Rooker-Feldman doctrine.
18

Plaintiff does not make

any constitutional challenge, much less one that is independent
from the state court’s judgment.5

Nor has Plaintiff made

allegations of conduct that would fall within the extrinsic fraud
exception to the Rooker-Feldman doctrine.

Plaintiff makes the

general allegation that she did not receive notice of the state
court foreclosure action.
claim for fraud.

Such an allegation does not state a

Rather, adequacy of service is the type of issue

that could have been raised before the state court.

A claim that

the state court judgment should be vacated for lack of proper
service is precisely the type of claim that the Court cannot
entertain under the Rooker-Feldman doctrine.

Plaintiff fails to

specify how any of the Defendants engaged in fraudulent conduct
that would have prevented her from participating in the
foreclosure proceeding.
The Court lacks subject matter jurisdiction under the RookerFeldman doctrine.
3.

Plaintiff’s Amended Verified Complaint Does Not Allege A
Basis for Federal Jurisdiction

The Court also lacks jurisdiction because Plaintiff’s Amended
Verified Complaint does not allege sufficient facts to establish
jurisdiction in federal district court.

5

See Fed. R. Civ. P.

Even if Plaintiff’s Amended Verified Complaint could be
construed as asserting a due process claim for failure to provide
adequate service, such a claim is inextricably intertwined with
the state court foreclosure action and the Court is barred from
considering it under the Rooker-Feldman doctrine.
19

8(a)(1).

No basis for the Court’s jurisdiction is set forth in

the Amended Complaint.

Plaintiff does not allege sufficient facts

to establish diversity jurisdiction.

Plaintiff does not allege

her residency or the residency of any of the Defendants.

If

Plaintiff is a resident of Hawaii and a Defendant is also a
resident of Hawaii there would be no diversity jurisdiction.

See

42 U.S.C. § 1332.
The face of Plaintiff’s Amended Verified Complaint does not
establish that the Court would have federal question jurisdiction.
The Amended Verified Complaint does not state a cause of action
for violation of a federal law or of the United States
Constitution. See 42 U.S.C. § 1331.
action unless it has jurisdiction.

The Court cannot entertain an
See FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990) (federal courts are always “under
an independent obligation to examine their own jurisdiction”);
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 701 (1982) (federal court may not entertain
an action over which it has no jurisdiction).
B.

Plaintiff’s Amended Verified Complaint Fails to State a Claim
Plaintiff’s Amended Verified Complaint is dismissed for the

additional reason that it fails to state a claim against any of
the Defendants.

Plaintiff’s Amended Verified Complaint does not

contain sufficient factual allegations to state a plausible claim

20

for relief against any of the Defendants.
Plaintiff has also failed to comply with Fed. R. Civ. P.
10(b).

Fed. R. Civ. P. 10(b) requires that a party “state its

claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”

Plaintiff’s

Amended Verified Complaint does not contain separately numbered
paragraphs.
The Court addresses the Amended Verified Complaint against
each of the Defendants, in turn.
1.

Allegations Against the Association of Apartment Owners
of Makaha Valley Towers, Fred Weick, Ted Pond, and
Joanna Miranda

Plaintiff’s Amended Verified Complaint does not make any
allegations directly against the Association of Apartment Owners
of Makaha Valley Towers (“AOAO”).

As to Fred Weick, Ted Pond, and

Joanna Miranda, Plaintiff attempts to allege claims for gross
negligence and fraud.

Under Fed. R. Civ. P. 9(b), fraud claims

must be alleged with particularity.

A party must allege with

particularity the circumstances constituting fraud or mistake.
See Fed. R. Civ. P. 9(b).

To allege circumstances with

particularity, the party must include in her complaint statements
concerning the time, place, and nature of the alleged fraud, and
must set forth what is false or misleading about the defendant’s
statements or actions.

See Edwards v. Marin Park, Inc., 356 F.3d

1058, 1066 (9th Cir. 2004)

(In order to successfully plead claims
21

grounded in fraud, a complaint must “state the time, place, and
specific content of the false representations as well as the
identities of the parties to the misrepresentation”).6
Plaintiff has not done so.

Plaintiff makes broad allegations

about the board members’ and general manager’s alleged
mismanagement of the AOAO’s affairs.
with particularity.

She has not alleged fraud

Moreover, the nature of Plaintiff’s

allegations appear to be grounded in intrinsic fraud, that is,
fraud that led up to the foreclosure of Plaintiff’s condominium
unit.

Any claim based on intrinsic fraud with regard to the state

court foreclosure proceedings is barred by the Rooker-Feldman
doctrine.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to the AOAO, Fred Weick, Ted Pond, and Joanna Miranda.
2.

Allegations Against Certified Management, Inc. dba
Associa Hawaii

Although Associa is mentioned in the caption of Plaintiff’s
Amended Verified Complaint, Plaintiff has failed to set out any
facts or allegations against it.

There is no plausible basis for

6

The AOAO, Weick, Pond, Miranda, and Associa’s Motion to
Strike Amended Verified Complaint, filed December 9, 2014, or
Alternatively, to Dismiss Count 2, erroneously refers to
Plaintiff’s second cause of action for fraud which was included
in Plaintiff’s original Verified Complaint. (ECF No. 41 at p.
6.) Plaintiff’s Amended Verified Complaint attempts to allege
fraud, but does not include separate causes of action. The
argument made regarding lack of particularity, however, applies
with equal force to the allegations made in Plaintiff’s Amended
Verified Complaint.
22

recovery against Certified Management, Inc. dba Associa Hawaii
(“Associa”) set forth in the Amended Verified Complaint.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to Certified Management, Inc. dba Associa Hawaii.

3.

Allegations Against Anderson Lahne & Fujisaki, LLC and
Amber D. Garcia

Defendants Anderson Lahne & Fujisaki, LLC and Amber D. Garcia
(collectively, “Attorney Defendants”) are the law firm and
attorney that represented the AOAO in the state court foreclosure
proceedings.

Plaintiff’s Amended Verified Complaint alleges that

Amber D. Garcia (“Garcia”) engaged in “a deliberate act of willful
misconduct” by instructing the AOAO board and general manager not
to deal with, or speak to, Plaintiff regarding her investment in
the project.

(Amended Verified Compl. at p. 7, ECF No. 35.)

Plaintiff alleges that attorney Garcia’s instructions to her
client somehow violated the bylaws. (Id.)

Plaintiff also makes

the vague allegation that attorney Garcia, along with Weick, Pond,
and Miranda participated in an unspecified “scheme” against
Plaintiff and the court.

(Id. at p. 3.)

Garcia and the law firm of Anderson Lahne & Fujisaki, LLC did
not owe Plaintiff, an adversary to their client, a general duty of
care.

See Buscher v. Boning, 159 P.3d 814, 832 (Haw. 2007)

(“courts which have addressed the issue have uniformly found that
an attorney does not have a duty to a third party, including an
23

opposing party, the breach of which would subject the attorney to
liability”)(quoting Clark v. Druckman, 624 S.E.2d 864, 869
(2005)).

That said, an attorney can be sued by an adverse party

for fraud. See Buscher, 159 P.3d at 832, n. 13.

Plaintiff has not

made any allegations as to the Attorney Defendants that would
state a cause of action for fraud.

Taking as true Plaintiff’s

allegation that Garcia told her clients not to talk to Plaintiff
about the foreclosure action, such an instruction is reasonable
and expected.

Attorney Defendants had a duty to protect their

clients’ interests.

Plaintiff has failed to allege fraud, much

less fraud with particularity or fraud that would avoid
application of the Rooker-Feldman doctrine.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to Anderson Lahne & Fujisaki, LLC and Amber D. Garcia, Esq.
4.

Allegations as to Ocwen Loan Servicing, LLC, Mortgage
Electronic Registration Systems, Inc. and HSBC Bank USA,
National Association

Plaintiff’s Amended Verified Complaint does not contain any
allegations as to Ocwen Loan Servicing, LLC (“Ocwen”), Mortgage
Electronic Registration Systems, Inc. (“MERS”) or HSBC Bank USA,
National Association (“HSBC”).7

Plaintiff has failed to state a

7

Neither MERS nor HSBC has been served with the initial (ECF
No. 1) or amended (ECF No. 35) complaints. As stated in their
motion for substantive joinder, they make only a special
appearance in the matter. (ECF No. 49.)
24

claim against any of these Defendants.

In her Opposition,

Plaintiff attempts to make allegations against Ocwen as a loan
servicer and contends that unspecified “Servicers” violated

state

and federal law by engaging in unfair and deceptive practices.
(ECF No. 51.)

To the extent Plaintiff is attempting to assert

additional claims in her Opposition, this is not permitted by the
Federal Rules of Civil Procedure.

Moreover, the who, what, where,

when, and how of this allegedly deceptive conduct is missing.

It

is unclear how Defendants Ocwen, MERS, or HSBC engaged in any type
of conduct that could have possibly harmed Plaintiff.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to Ocwen Loan Servicing, LLC, Mortgage Electronic Registration
Systems, Inc. and HSBC Bank USA, National Association.
5.

Allegations as to “Wuick” or “Quick” Loan Funding

Plaintiff’s Amended Verified Complaint does not contain any
allegations as to “Wuick” or “Quick” Loan Funding.

“Wuick” or

“Quick” Loan Funding has not been served and does not appear.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to “Wuick” or “Quick” Loan Funding.
6.

Allegations Against the Honorable Bert I. Ayabe

Plaintiff alleges that Judge Ayabe allowed the state court
foreclosure action to commence and proceed without Plaintiff
having been properly served.
8, ECF No. 35.)

(Amended Verified Compl. at p. 3, 7-

Plaintiff further alleges that Judge Ayabe failed
25

to deduce facts that constituted “fraud upon the court”.
Verified Compl. at p. 3, ECF No. 35.)

(Amended

In doing so, she challenges

evidence that was before the state court in the foreclosure
action. (Id.)

Finally, Plaintiff makes a vague allegation of

bias, alleging that Judge Ayabe owns a large portion of stock in
an unspecified bank. (Amended Verified Compl. at p. 7, ECF No.
35.)
All of Plaintiff’s allegations against Judge Ayabe pertain to
the state court foreclosure proceeding and are barred by the
Rooker-Feldman doctrine.

Even if the Court had subject matter

jurisdiction, which it does not, Plaintiff’s claims against the
Honorable Bert I. Ayabe are dismissed because Plaintiff has failed
to state a claim against him in his individual capacity and
Plaintiff’s claims against Judge Ayabe in his official capacity
are barred by the doctrine of absolute judicial immunity.
Plaintiff has not asserted claims against Judge Ayabe in his
individual capacity.

Plaintiff’s claims against Judge Ayabe are

predicated on actions he took in his official capacity as a
circuit court judge presiding over foreclosure actions.
Plaintiff’s allegations that Judge Ayabe stepped outside his
judicial role and abused his discretion are barred by the doctrine
of absolute judicial immunity.

Judges are absolutely immune from

civil liability for action taken in their official capacities.
See Nixon v. Fitzgerald, 457 U.S. 731 (1982).

26

Judicial immunity

applies no matter how “erroneous the act may have been, and
however injurious in its consequences it may have proved to the
plaintiff.”

Ashelman v. Pope, 793 F .2d 1072, 1075 (9th Cir.

1986)(en banc).

The only exceptions are if the judge acts in the

clear absence of jurisdiction or performs an act that is not
judicial in nature. See Stump v. Sparkman, 435 U.S. 349, 357
(1978); Ashelman, 793 F.2d at 1075.

Absolute judicial immunity

applies to immunity from suit, not just immunity from damages.
See Mireles v. Waco, 502 U.S. 9, 11 (1991); Moore v. Brewster, 96
F.3d 1240, 1243 (9th Cir. 1996), superceded by statute on other
grounds in Tia v. Mollway, 2011 WL 2945813 at *4 (D. Haw. July 20,
2011).
Judge Ayabe is entitled to absolute judicial immunity because
he had jurisdiction and performed an act judicial in nature.
Circuit Courts in Hawaii have jurisdiction over foreclosure
actions and proceedings.

See Haw. Rev. Stat. § 603-21.7(a)(3).

Circuit Court judges are authorized to assess the amount due and
render judgment for the amount awarded.
667-1.5.

See Haw. Rev. Stat. §

Judge Ayabe acted within his jurisdictional authority.

Judge Ayabe’s act of entering a foreclosure order and judgment is
judicial in nature because it is an act normally performed by a
judge. See Ashelman, 793 F.2d at 1075.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE as
to the Honorable Bert I. Ayabe.

27

CONCLUSION
The Court lacks subject matter jurisdiction under the RookerFeldman doctrine.

The Court also does not have jurisdiction

because Plaintiff has failed to allege sufficient facts to
establish jurisdiction based on diversity or federal question.
Even if the Court had jurisdiction, Plaintiff’s Amended Verified
Complaint fails to state a claim against any of the Defendants.
The Association of Apartment Owners of Makaha Valley Towers, Fred
Weick, Ted Pond, Joanna Miranda, and Certified Management, Inc.
dba Associa Hawaii
ECF No. 41: ASSOCIATION OF APARTMENT OWNERS OF MAKAHA
VALLEY TOWERS, ERRONEOUSLY SUED AS APARTMENT OWNERS
ASSOCIATION OF MAKAHA VALLEY TOWERS BOARD OF DIRECTORS,
FRED WEICK, TED POND, JOANNA MIRANDA, AND CERTIFIED
MANAGEMENT INC., DBA ASSOCIA HAWAII’S MOTION TO STRIKE
AMENDED VERIFIED COMPLAINT FOR DAMAGES AND DECLARATORY AND
INJUNCTIVE
RELIEF,
FILED
DECEMBER
9,
2014,
OR
ALTERNATIVELY, TO DISMISS COUNT 2 is DENIED as to the
Motion to Strike the Amended Verified Complaint and
GRANTED as to the dismissal of Plaintiff’s fraud based
claim and as to all other claims against the AOAO, Weick,
Pond, Miranda and Associa.
ECF No. 42: CERTIFIED MANAGEMENT INC., DBA ASSOCIA
HAWAII’S MOTION TO DISMISS AMENDED VERIFIED COMPLAINT FOR
DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF, FILED
DECEMBER 9, 2014 is GRANTED.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE in
its entirety as to the Association of Apartment Owners of Makaha
Valley Towers, Fred Weick, Ted Pond, Joanna Miranda, and Certified
Management, Inc. dba Associa Hawaii.
28

Anderson Lahne & Fujisaki, LLC and Amber D. Garcia
ECF No. 36: ANDERSON LAHNE & FUJISAKI, LLC AND AMBER D.
GARCIA’S MOTION TO DISMISS AMENDED VERIFIED COMPLAINT is
GRANTED.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE in
its entirety as to Anderson Lahne & Fujisaki, LLC and Amber D.
Garcia.
Ocwen Loan Servicing, LLC, Mortgage Electronic Registration
Systems, Inc. and HSBC Bank USA, National Association
ECF No. 49: OCWEN DEFENDANTS’ SUBSTANTIVE JOINDER IN [Dkt.
#43] DEFENDANT THE HONORABLE BERT I. AYABE’S MOTION TO
DISMISS WITH PREJUDICE AMENDED VERIFIED COMPLAINT FOR
DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF, FILED ON
DECEMBER 9, 2014 is GRANTED.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE
in its entirety as to Ocwen Loan Servicing, LLC, Mortgage
Electronic Registration Systems, Inc., and HSBC Bank USA, National
Association, As Trustee for the Registered Holders of Nomura Home
Equity Loan, Inc. Asset Backed Certificates, Series 2007-2.
“Wuick” or “Quick” Loan Funding
The Amended Verified Complaint is DISMISSED WITH PREJUDICE in
its entirety as to “Wuick” or “Quick” Loan Funding.

The Honorable Bert I. Ayabe
ECF No. 43: DEFENDANT THE HONORABLE BERT I. AYABE’S MOTION TO
DISMISS WITH PREJUDICE AMENDED VERIFIED COMPLAINT FOR DAMAGES
AND DECLARATORY AND INJUNCTIVE RELIEF, JOINED BY OCWEN LOAN
SERVICING, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
29

INC., AND HSBC BANK USA, NATIONAL ASSOCIATION is GRANTED.
ECF No. 28: DEFENDANT THE HONORABLE BERT I. AYABE’S MOTION TO
DISMISS WITH PREJUDICE THE ORIGINAL VERIFIED COMPLAINT FOR
DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF is DENIED AS
MOOT.
The Amended Verified Complaint is DISMISSED WITH PREJUDICE in
its entirety as to the Honorable Bert I. Ayabe.
Plaintiff is Denied Leave to Amend
Plaintiff is DENIED leave to file a second amended complaint.
Five factors are frequently used to assess the propriety of
whether leave to amend should be granted: (1) bad faith; (2) undue
delay; (3) prejudice to the opposing party; (4) futility of
amendment; and (5) whether plaintiff has previously amended his
complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th
Cir. 1990) (citing Ascon Properties, Inc. v. Mobil Oil Co., 866
F.2d 1149, 1160 (9th Cir.1989)).
for denying leave to amend.

Futility alone may be grounds

See Steckman v. Hart Brewing, Inc.,

143 F.3d 1293, 1298 (9th Cir. 1998). Here, Plaintiff has already
amended her complaint once and granting leave to amend would be
futile.

Plaintiff asks the Court to exercise what amounts to

appellate review over the state court foreclosure action and the
Court lacks jurisdiction to do so under the Rooker-Feldman
doctrine.

Granting leave to amend would be futile because the

Court does not have jurisdiction to award Plaintiff the relief she
seeks from the state court foreclosure action.
30

If Plaintiff has

claims that are not barred by the Rooker-Feldman doctrine, she may
file a new case to bring such claims.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
Dated February 27, 2015, Honolulu, Hawaii.

_________________________________________________________________
HEP Y. GUNN v. APARTMENT OWNERS ASSOCIATION OF MAKAHA VALLEY TOWERS
BOARD OF DIRECTORS, ET AL.; Civ. No. 14-00474 HG-RLP; ORDER
DISMISSING AMENDED VERIFIED COMPLAINT FOR LACK OF JURISDICTION AND
FOR FAILURE TO STATE A CLAIM (ECF No. 28, 36, 41, 42, 43, 49)

31