Freeze v. Gallagher

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON — 8 — AT SEATTLE — 9 — 10 ERIC STEPHEN FREEZE, CASE NO. C23-1135JLR 11 Plaintiff, ORDER v. — 12 — ELIZABETH E. GALLAGHER, et — 13 — al., — 14 — Defendants. — 15 — I. INTRODUCTION — 16 — Before the court is the renewed motion to dismiss filed by Defendants Elizabeth E. — 17 — Gallagher, Ann G. Freeze Revocable Trust, Ronald L. Freeze Revocable Trust (together — 18 — with Ann G. Freeze Revocable Trust, the “Trusts”), James Massingale, and Angela — 19 — Massingale (collectively, the “Gallagher Defendants”). (MTD (Dkt. # 63).) Plaintiff Eric — 20 — Stephen Freeze, who is proceeding pro se in this action, opposes the motion (MTD Resp. — 21 — (Dkt. # 69)) and filed a request for judicial notice in which he includes additional — 22 — 1 arguments opposing dismissal (Request (Dkt. # 79)). Defendant Jose T. Acuna joins in 2 the Gallagher Defendants’ motion to dismiss. (Joinder (Dkt. # 77).) On July 12, 2024, 3 the court held a hearing in which, in relevant part, it heard argument from the parties on 4 the motion to dismiss. (See 7/12/24 Min. Entry (Dkt. # 75).) The court has considered 5 the motion, the parties’ arguments and submissions, the relevant portions of the record, 6 and the governing law. Being fully advised, the court GRANTS the Gallagher 7 Defendants’ motion to dismiss and Mr. Acuna’s joinder thereto. 8 II. BACKGROUND 9 Mr. Freeze’s claims in this matter arise from his eviction from a property in 10 Concrete, Washington (“the Property”). The court discusses the relevant factual and 11 procedural background below. 12 A. General Background 13 Ms. Gallagher is the daughter of Ann G. and Ronald L. Freeze, the beneficiaries of 14 the Trusts, and is the trustee for the Trusts. (6/28/24 Taylor Sanctions Decl. (Dkt. # 62) 15 ¶ 27, Ex. 1 (“Gallagher Complaint”) ¶ 1.1.1) Mr. Freeze is the grandson of Ann and 16 Ronald Freeze. (Id. ¶ 1.2; Am. Compl. (Dkt. # 5) ¶ 3.3.) Mr. Freeze alleges that his 17 father, Peter Freeze—Ann and Ronald Freeze’s son—borrowed money with his parents 18 to buy the Property. (Am. Compl. ¶ 3.3.) Ann and Ronald Freeze then put the Property 19 into the Trusts and, according to Mr. Freeze, gave Peter Freeze power of attorney for the 20 Trusts. (Id. ¶¶ 3.3-3.4) As Mr. Freeze acknowledges, the Property was never removed — 21 — 1 As discussed below, the court grants the Gallagher Defendants’ request for the court to — 22 — take judicial notice of documents and orders filed in Gallagher. 1 from the Trusts prior to the events underlying this matter. (Id. ¶¶ 3.3, 3.6; see also 2 6/28/24 Taylor Sanctions Decl. ¶ 27, Ex. 3 (“Gallagher Damages Order”) ¶¶ 1.2-1.3 3 (finding that the Property was quit-claimed to the Trusts in 1994).) Mr. Freeze alleges, 4 however, that he and Peter Freeze entered into an oral contract in which Mr. Freeze 5 would “guard, maintain and repair” the Property in exchange for ownership of the 6 Property upon Peter Freeze’s demise. (Am. Compl. ¶ 3.4) Mr. Freeze asserts that he 7 maintained the Property for 20 years in accordance with that oral agreement. (Id.) Peter 8 Freeze died on November 13, 2021. (Id. ¶ 3.5.) 9 According to Mr. Freeze, within two days of his father’s death, Ms. Gallagher and 10 Mr. Acuna—a tenant of the Property who had “agreed to buy all the property as soon as 11 [Mr. Freeze] was removed from the property”—“conspired to forcibl[y] attempt to vacate 12 and remove [Mr. Freeze] from the property by breaking, entering, stealing documents, 13 property, and then changing the entry locks to [Mr. Freeze’s] home . . . without his 14 foreknowledge, permission or compensation[.]” (Id. ¶¶ 3.6-3.7.) Mr. Freeze further 15 alleges that Ms. Gallagher and Mr. Acuna “worked in concert with” Skagit County 16 Sheriff Donald L. McDermott to “cause [Mr. Freeze] to be robbed, made homeless, 17 destitute, and without solace in a time of grievance and with willful intent to deprive and 18 deny [Mr. Freeze] that he is worthy of his hire and of his promised inheritance.” (Id. 19 ¶ 3.8.) Mr. Freeze asserts that Sheriff McDermott refused to investigate his allegations 20 that Ms. Gallagher and Mr. Acusa were conspiring to violate his rights. (Id.) 21 Mr. Freeze alleges that Ms. Gallagher “fabricated a scheme of a false story that the 22 ‘Trust had died and was in Probate’” in order to remove him from the Property. (Id.) He 1 also states that he sent Ms. Gallagher and the Trusts an invoice for “equipment, materials, 2 expenses, labor, monies, and time” that he “invested in the Property” and “three affidavit 3 invoices” along with an “affidavit of Notice of Default,” but Ms. Gallagher and the Trusts 4 “did not answer or respond to [his] request for payment.” (Id. ¶¶ 3.9-3.10.) In December 5 2021, Mr. Freeze recorded a purported lis pendens and UCC-1 lien against the Property. 6 (See id. ¶ 3.11; Gallagher Damages Order ¶ 1.9.) 7 B. Gallagher v. Freeze 8 In February 2022, Ms. Gallagher, as trustee for the Trusts, filed a quiet title action 9 in Skagit County Superior Court. See Gallagher v. Freeze, No. 22-2-00163-4 (Skagit 10 Cnty. Super. Ct.) (hereinafter, “Gallagher”). Ms. Gallagher brought claims against Mr. 11 Freeze for trespass, ejectment, quiet title, nuisance, and slander of title. (Gallagher 12 Compl. ¶¶ 4.1-8.4.) Mr. Freeze answered the complaint and asserted counterclaims. (See 13 6/28/24 Taylor Sanctions Decl. ¶ 27, Ex. 2 (“Gallagher Summary Judgment Order”) at 1 14 (listing documents the Superior Court considered in deciding Ms. Gallagher’s motion for 15 summary judgment).) 16 On June 2, 2022, the Superior Court granted Ms. Gallagher’s motion for summary 17 judgment and denied Mr. Freeze’s counter-motion for summary judgment. (See 18 generally id.) The Superior Court concluded, in relevant part, that (1) Ms. Gallagher, as 19 trustee, had “superior title and the right to possess and transfer ownership of the 20 Property”; (2) Mr. Freeze had “no legal or equitable ownership of the Property under 21 Washington law”; (3) the lien filed by Mr. Freeze had no legal or equitable basis and no 22 legal effect; (4) Mr. Freeze’s actions interfered with Ms. Gallagher’s right to “use, sell, 1 and possess the Property”; and (5) Mr. Freeze’s refusal to vacate the Property “constitutes 2 a continuing trespass on the Property.” (Id. ¶¶ 2.1-2.10.) As a result, the Superior Court 3 (1) quieted title in the Property in Ms. Gallagher on behalf of the Trusts; (2) ordered Mr. 4 Freeze to vacate and remove all personal property from the Property by July 18, 2022; 5 (3) awarded Ms. Gallagher damages, attorney’s fees, and costs in an amount to be 6 determined at a later hearing; and (4) authorized the removal of Mr. Freeze and his 7 personal property from the Property “either by a Writ of Ejectment procedure or through 8 the contempt powers of the Court.” (Id. ¶¶ 3.1-3.12.) 9 Mr. Freeze failed to vacate the property by the deadline. (See Gallagher Damages 10 Order ¶ 1.18.) Instead, he filed an appeal of the Superior Court’s summary judgment 11 order and a motion for a preliminary injunction. (See id. at 1-2 (listing documents the 12 court considered in deciding Ms. Gallagher’s motion for damages).) 13 On October 31, 2022, the Superior Court granted Ms. Gallagher’s motion for 14 damages, for a supersedeas bond pending the resolution of Mr. Freeze’s appeal, and for 15 contempt. (See generally id.) The Superior Court found, in relevant part, that (1) Mr. 16 Freeze “claimed to have an ownership interest in the Property based upon a common law 17 theory that has no other legal or equitable basis”; (2) Mr. Freeze had stored 18 approximately 100 “unlicensed and/or inoperable vehicles” on the Property “without any 19 lawful authority”; (3) Mr. Freeze had “no legal or equitable right to reside or even 20 continue to be present on the Property;” (4) Ms. Gallagher, as trustee for the Trusts, “has 21 and has always had superior title to the Property”; (5) Mr. Freeze had filed frivolous 22 motions and requests during the lawsuit; and (6) although Mr. Freeze performed work on 1 the Property, “any amount of value added to the property by [Mr. Freeze] has not been 2 shown, particularly in light of the damage he has done to the property and [Ms. 3 Gallagher’s] ability to resell the property.” (Id. ¶¶ 1.10-1.19, 1.25-1.26, 1.30; see also id. 4 ¶¶ 2.1-2.12 (conclusions of law).) As a result, the Superior Court ordered Mr. Freeze to 5 vacate and remove his personal property from the Property by no later than December 1, 6 2022, and awarded Ms. Gallagher $79,600 in damages and $13,250 in attorney’s fees. 7 (Id. ¶¶ 3.1-3.11.) The Superior Court also imposed monetary sanctions against Mr. 8 Freeze for “maintain[ing] a clearly frivolous action despite prior warnings from the 9 Court.” (Id. ¶ 3.12.) 10 Mr. Freeze did not pursue his appeal of the Superior Court’s orders, and the 11 Washington Court of Appeals dismissed the appeal as abandoned on July 26, 2023. See 12 Order, Gallagher v. Freeze, No. 842544-I (Wash. Ct. App. July 26, 2023), available at 13 https://acdocportal.courts.wa.gov/PublicAccess/search_ca.html (last visited August 6, 14 2024). 15 C. Freeze v. McDermott 16 Mr. Freeze filed his first federal lawsuit arising from his eviction on December 29, 17 2022. (See Freeze v. McDermott, No. C22-1844JLR (W.D. Wash.) (hereinafter, 18 “McDermott”).) He amended his complaint on March 29, 2023. (See generally 19 McDermott Am. Compl. (McDermott, Dkt. # 3).) Mr. Freeze asserted a litany of federal 20 and state-law claims against Ms. Gallagher, the Trusts, and their attorney, Paul W. Taylor 21 (together, the “Trust Defendants”); certain Skagit County officials (“the Skagit 22 Defendants”); and Mr. Acuna. (See generally id.) 1 On May 23, 2023, the court granted the Skagit Defendants’ motion to dismiss and 2 dismissed Mr. Freeze’s claims against all of the McDermott defendants except Mr. 3 Acuna. (See generally 5/23/23 McDermott Order (McDermott, Dkt. # 27).) The court 4 concluded that dismissal was warranted because Mr. Freeze “failed to substantively 5 respond to the arguments raised in the Skagit Defendants’ motion to dismiss and the 6 Trust Defendants’ joinder and thus ha[d] ‘effectively abandoned’ his claims.” (Id. at 11 7 (quoting Montgomery v. Specialized Loan Servicing, LLC, 772 F. App’x 476 , 477 (9th 8 Cir. 2019)).) The court denied leave to amend “because the Skagit County Superior 9 Court conclusively ruled that Mr. Freeze had no legal or equitable right to the Property 10 that is the subject of this action and because Mr. Freeze effectively abandoned his claims 11 by failing to respond substantively to the Skagit Defendants’ motion.” (Id. at 14.) 12 On July 13, 2023, the court ordered Mr. Freeze to show cause why it should not 13 dismiss his remaining claim against Mr. Acuna for failure to state a claim. (7/13/23 14 McDermott Order (McDermott, Dkt. # 53).) Mr. Freeze did not respond substantively to 15 the order to show cause. (See McDermott OSC Resp. (McDermott, Dkt. # 63).) 16 Accordingly, the court dismissed the matter with prejudice and without leave to amend 17 on July 28, 2023. (See generally 7/28/23 McDermott Order (McDermott, Dkt. # 64).) 18 Mr. Freeze did not appeal any of the court’s orders in McDermott. (See generally 19 McDermott Dkt.) 20 C. Freeze v. Gallagher 21 Mr. Freeze filed his original complaint in this matter on July 31, 2023—just three 22 days after the court entered judgment in McDermott. (See Compl. (Dkt. # 1).) He 1 originally named only Ms. Gallagher, the Trusts, and Mr. Acuna as defendants. (See 2 generally id.) 3 On August 25, 2023, Ms. Gallagher, as trustee, executed a statutory warranty deed 4 conveying the Property to Mr. Massingale and Ms. Massingale. (6/28/ 24 Taylor 5 Sanctions Decl. ¶ 27, Ex. 6 (“Statutory Warranty Deed”).) The deed was recorded on 6 October 19, 2023. (Id. at 1.) Shortly thereafter, on October 26, 2023, Mr. Freeze 7 amended his complaint to add Mr. Massingale and Ms. Massingale as Defendants. (See 8 generally Am. Compl.) He alleges claims for “Frauds and Swindles” under common law 9 and 18 U.S.C. § 1341 ; for violation of the federal Racketeering Influenced and Corrupt 10 Organizations Act (“RICO”), 18 U.S.C. §§ 1961 , 1962; and for intentional infliction of 11 emotional distress in violation of 15 U.S.C. § 6602 (5)(B). (Id. ¶¶ 5.1-5.10; see also id. 12 ¶¶ 4.1-4.3 (explaining in a section labeled “NATURE OF ACTION” that his claims arise 13 from Defendants’ “schemes” to defraud him of his inheritance and evict him from the 14 Property).) 15 The Gallagher Defendants filed their original motion to dismiss on March 19, 16 2024. (1st MTD (Dkt. # 35).) On April 19, 2024, the court denied the motion without 17 prejudice for failure to include legal argument and citations to the record and authority. 18 (4/19/24 Order (Dkt. # 49).) 19 The Gallagher Defendants filed the instant motion to dismiss on June 28, 2024. 20 (See generally MTD.) On that same day, the court ordered the parties to show cause why 21 the court should not dismiss this action without prejudice for failure to timely file a joint 22 status report. (6/28/24 OSC (Dkt. # 58).) The court subsequently ordered the parties to 1 appear at a hearing on July 12, 2024. (7/3/24 Min. Order (Dkt. # 65).) Mr. Freeze 2 responded to the motion to dismiss on July 8, 2024. (See generally MTD Resp.) 3 During the July 12, 2024 hearing, the court heard argument from the parties 4 regarding the order to show cause and the motion to dismiss. (See 7/12/24 Min. Order 5 (Dkt. # 76).2) In relevant part, the Gallagher Defendants argued, as they do in their 6 motion, that Mr. Freeze’s claims are barred based on the Skagit County Superior Court’s 7 orders concluding that Mr. Freeze had no legal or equitable right to own or be on the 8 Property and evicting Mr. Freeze from the Property. Mr. Freeze, meanwhile, argued that 9 he is the legal owner of the Property based on a contract between himself, his late father, 10 and his grandfather. Mr. Freeze confirmed, in response to the court’s questioning, that he 11 understands that this court cannot overrule or overturn the Skagit County Superior 12 Court’s rulings. He then stated that this case is not about ownership of the Property and 13 that he instead seeks “equity” of over $75,000 based on the alleged contract. He asserted 14 that although he raised his contract claim before the Skagit County Superior Court, the 15 Superior Court judge did not read the documents he presented on that issue. 16 On July 15, 2024, Mr. Freeze filed a document in which he (1) asks the court to 17 take judicial notice of certain documents he filed in McDermott; (2) discusses the 18 purported contract with his father that, he asserts, establishes his right to inherit the 19 Property, and (3) explains why he believes that Mr. Acuna and the Massingales are 20 proper defendants in this action. (See generally Request.) Mr. Acuna filed his joinder in — 21 — 2 The court reviewed the rough transcript of the July 12, 2024 hearing in preparing to — 22 — draft this order. 1 the Gallagher Defendants’ motion to dismiss on July 16, 2024. (See generally Joinder.) 2 The Gallagher Defendants did not file a reply in support of their motion to dismiss. 3 Accordingly, the motion is ripe for decision. 4 III. ANALYSIS 5 The Gallagher Defendants argue that this matter must be dismissed with prejudice 6 because Mr. Freeze’s claims arise from his eviction from the Property and are thus 7 precluded by the Skagit County Superior Court’s rulings in Gallagher. (See MTD at 4-5; 8 see also Joinder at 2).) Mr. Freeze does not respond substantively to the Gallagher 9 Defendants’ preclusion argument. (See generally MTD Resp.; see also Request.) To the 10 contrary, in his response to the motion to dismiss he urges the court to liberally construe 11 his complaint and grant him leave to amend “with specific instructions on how to correct 12 any such deficiencies.” (MTD Resp. at 1-2 (citing cases discussing the liberal 13 construction of pro se pleadings).) In his request for judicial notice, meanwhile, Mr. 14 Freeze asserts that Defendants “received affidavits via certified mail in which they were 15 made aware of the contractual agreement of unpaid funds due” to Mr. Freeze and 16 “tacit[ly] assent[ed] to the contract’s validity” by failing to rebut those affidavits. 17 (Request at 2-4.) For the reasons set forth below, the court grants the Gallagher 18 Defendants’ motion to dismiss. 19 A. Standard of Review 20 Because the pleadings are closed in this case (see Am. Compl. (Dkt. # 5); 21 Gallagher Defs. Ans. (Dkt. # 9); Acuna Ans. (Dkt. # 11)), the court construes the 22 Gallagher Defendants’ motion to dismiss as a motion for judgment on the pleadings 1 pursuant to Federal Rule of Civil Procedure 12(c). See Fed. R. Civ. P. 12(c) (“After the 2 pleadings are closed—but early enough not to delay trial—a party may move for 3 judgment on the pleadings.”). Judgment on the pleadings is proper when, “taking all the 4 allegations in the pleadings as true, the moving party is entitled to judgment as a matter 5 of law.” Gregg v. Haw., Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017) (quoting 6 Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998) ). “Because a Rule 12(c) 7 motion is functionally identical to a Rule 12(b)(6) motion [to dismiss for failure to state a 8 claim], the same standard of review applies to motions brought under either rule.” Id. 9 (quoting Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 , 1054 n.4 (9th Cir. 10 2011)) (internal quotation marks omitted). 11 Under the Rule 12(b)(6) standard, the complaint “must contain sufficient factual 12 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 13 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 14 570, (2007)). “A claim has facial plausibility when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. In reviewing the plausibility of a complaint, courts “accept 17 factual allegations in the complaint as true and construe the pleadings in the light most 18 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 19 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, courts need not “accept as true allegations 20 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” 21 or “that contradict matters properly subject to judicial notice or by exhibit.” Sprewell v. 22 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 Because Mr. Freeze is proceeding pro se in this action, the court must construe his 2 pleadings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, Mr. 3 Freeze must still plead factual allegations sufficient to state a plausible claim for relief. 4 Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010); see also Muñoz v. United States, — 5 — 28 F.4th 973, 978 (9th Cir. 2022) (pro se litigants must adhere to the same procedural 6 requirements as other litigants). 7 B. Judicial Notice 8 The court begins by resolving the parties’ requests for judicial notice. 9 1. The Gallagher Defendants’ Request for Judicial Notice 10 The Gallagher Defendants ask the court to take judicial notice of filings and orders 11 in Gallagher and McDermott, as well as of the statutory warranty deed recorded in Skagit 12 County and Ronald Freeze’s death certificate. (MTD at 4; see 6/28/24 Taylor Sanctions 13 Decl. ¶ 27, Exs. 1-7.) Under Federal Rule of Evidence 201, the court can judicially 14 notice “a fact that is not subject to reasonable dispute because it (1) is generally known 15 within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 16 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Civ. 17 P. 201 (b). The district court may take judicial notice of court filings and other matters of 18 public record. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 746 n.6 (9th 19 Cir. 2006) (taking judicial notice of court filings made in a separate litigation). Because 20 all of the documents for which the Gallagher Defendants seek notice are court filings and 21 public records, they are appropriate subjects of judicial notice and the court will consider — 22 — 1 them in resolving the motion to dismiss. See Fed. R. Evid. 201(b); Harris v. Cnty. of 2 Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). 3 2. Mr. Freeze’s Requests for Judicial Notice 4 Mr. Freeze seeks judicial notice of two types of documents. First, Mr. Freeze asks 5 the court to take judicial notice of Mr. Acuna’s petition for a protective order against Mr. 6 Freeze, filed in the Skagit County Superior Court on July 29, 2022. (See Request at 1 7 (citing McDermott, Dkt. # 1-2 at 14-23).) Because the petition is a court filing, the court 8 takes judicial notice of it for the reasons set forth above. 9 Second, Mr. Freeze asks the court to take judicial notice of “unrebutted affidavits” 10 he filed in McDermott. (See Request at 1 (citing McDermott, Dkt. # 1-2 at 3-7, 32-35, 11 39-42 (excerpts of documents sent to Ms. Gallagher, Mr. Acuna, the Trusts, and Mr. 12 Taylor, among others (“Affidavits”))).) In January 2022 and February 2023, Mr. Freeze 13 sent versions of a document titled “Common Law Affidavit/Declaration of Truth” to the 14 Trust Defendants and several other individuals. (See Affidavits.) Mr. Freeze asserts that 15 the recipients’ failure to respond to the Affidavits before the deadlines he set therein 16 “reflects Defendants[’] . . . tacit agreement to the unrebutted affidavits” and “could 17 reasonably be construed as tacit assent to the contract’s validity.” (Request at 1, 4.) 18 This court has already rejected the proposition that Mr. Freeze’s “unrebutted 19 Affidavits” have any legal significance. As the court held in McDermott, Defendants’ 20 failure to respond to Mr. Freeze’s Affidavits does not constitute an admission of the 21 allegations therein absent some duty or contractual obligation to respond. (See 5/23/23 22 McDermott Order at 12-13 (citing Patao v. Equifax, Inc., No. CV 19-00677 JMS-WRP, — 1 — 2020 WL 5033561 , at *6 (D. Haw. Aug. 25, 2020) (rejecting plaintiff’s assertion that 2 defendant’s failure to respond to his “Notice of Fault and Opportunity to Cure and 3 Contest Acceptance” and “Affidavit and Notice of Default” constituted an admission of 4 the allegations set forth therein)).) Although Mr. Freeze lists cases that he contends 5 support his assertion that “silence or inaction can constitute agreement or acceptance,” 6 none of this authority calls the court’s conclusion in McDermott into question. (See 7 Request at 3-4 (citing cases).) The court also rejects Mr. Freeze’s attempt to analogize 8 his Affidavits to declarations filed in support of or in opposition to a motion for summary 9 judgment. (See id. at 6-7 (citing cases)); see Fed. R. Civ. P. 56(c)(1) (providing, in the 10 summary judgment context, that “[a] party asserting that a fact cannot be or is genuinely 11 disputed must support the assertion by . . . citing to particular parts of materials in the 12 record,” including affidavits or declarations). Accordingly, the court denies Mr. Freeze’s 13 request for the court to take judicial notice of the Affidavits. 14 C. Abandonment 15 The court concludes that dismissal is warranted because Mr. Freeze has failed to 16 respond substantively to the arguments raised in the Gallagher Defendants’ motion and 17 Mr. Acuna’s joinder and thus has “effectively abandoned” his claims. Montgomery, 772 18 F. App’x at 477 (citing Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th 19 Cir. 2006)); see also Renato v. Beaulieu, No. C20-0708RSM, 2022 WL 1607919 , at *11 20 (W.D. Wash. May 20, 2022) (accepting plaintiff’s failure to “substantively respond” to 21 defendant’s legal arguments “as an admission that the motion has merit”); El v. San 22 Diego Unified Sch. Dist., No. 20-CV-00257-AJB-AGS, 2021 WL 3240298 , at *2 (S.D. 1 Cal. June 29, 2021) (construing plaintiff’s failure to respond to the arguments in 2 defendant’s motion to dismiss as a waiver and granting the motion to dismiss), aff’d, No. 3 21-55805, 2022 WL 1714284 (9th Cir. May 27, 2022); (see also 5/23/23 McDermott 4 Order at 11 (dismissing Mr. Freeze’s claims in McDermott for failure to respond 5 substantively to the the motion to dismiss)). Rather than respond to the Gallagher 6 Defendants and Mr. Acuna’s assertions that his claims are precluded by the Skagit 7 County Superior Court’s rulings, Mr. Freeze argues only that the court should liberally 8 construe the allegations in his complaint because he is a pro se litigant and grant him 9 leave to amend his complaint to cure any deficiencies therein. (See generally MTD 10 Resp.; Request.) Because Mr. Freeze has abandoned his claims, the court grants the 11 Gallagher Defendants’ motion to dismiss and Mr. Acuna’s joinder therein. 12 D. Issue Preclusion 13 Although dismissal is appropriate based solely on Mr. Freeze’s abandonment of 14 his claims, the court nevertheless addresses the Gallagher Defendants’ argument that Mr. 15 Freeze’s claims are precluded by the Superior Court’s rulings. Issue preclusion applies 16 when “(1) the issue at stake was identical in both proceedings; (2) the issue was actually 17 litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to 18 litigate the issue; and (4) the issue was necessary to decide the merits.” Love v. 19 Villacana, 73 F.4th 751, 754 (9th Cir. 2023) (quoting Janjua v. Neufeld, 933 F.3d 1061 , 20 1065 (9th Cir. 2019)). “When deciding the preclusive effect of an earlier decision, courts 21 review the judgment’s ‘natural reading.’” Id. (quoting Ruiz v. Snohomish Cnty. Pub. Util. 22 Dist. No. 1, 824 F.3d 1161, 1167 (9th Cir. 2016). “A final judgment is afforded 1 preclusive effect even if erroneous.” Id. (citing Curlott v. Campbell, 598 F.2d 1175 , 1178 2 (9th Cir. 1979); B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138 , 157 (2015)). 3 The court concludes that the Skagit County Superior Court’s orders and judgments in 4 Gallagher have preclusive effect on this action. 5 Mr. Freeze raises three claims in this action. First, he alleges that Ms. Gallagher 6 and Mr. Acuna committed “[f]rauds and swindles” under common law and 18 U.S.C. 7 § 1341 by “conspir[ing] to forcefully evict [Mr. Freeze] from his home . . . to make [the] 8 Property available to [Mr. Acuna] to purchase, as [Mr. Acuna] had agreed to buy the 9 property as soon as [Mr. Freeze] was removed from the property.” (Am. Compl. 10 ¶¶ 5.1-5.2; see also id. ¶ 4.1 (alleging Ms. Gallagher violated 18 U.S.C. § 1341 by 11 “plann[ing] a scheme . . . to defraud [Mr. Freeze] of his inheritance, and 20 years of labor 12 and expenses”).) Second, he alleges that Defendants violated RICO by “working across 13 state lines to deny due process to [Mr. Freeze] and unlawfully evict him from his home of 14 35 years,” “conspir[ing] to allow Mr. Acuna to break in, steal and vandalize [Mr. 15 Freeze’s] home and possessions so the Trust’s probate procedures would not be delayed”; 16 and “forcefully remov[ing] [Mr. Freeze] so the Trust . . . could sell the property to [Mr. 17 Acuna].” (Id. ¶ 5.3.) And third, Mr. Freeze alleges that Defendants violated “15 U.S.C. 18 § 6602(5)(B) intentional infliction of emotional distress” by “breaking into [his] home 19 shortly after the passing of [his] father, stealing crucial documents of ownership, personal 20 belongings, and changing locks,” “attempt[ing] to force [him] out of a home of 35 years,” 21 and filing the Gallagher lawsuit, “which left [him] homeless since December 2022.” (Id. 22 ¶¶ 5.7, 5.9.) 1 The elements of issue preclusion are satisfied here. First, the key issues in 2 Gallagher, as in this case, included whether, and to what extent, Mr. Freeze (1) had a 3 right to possess the Property; (2) had a right to remain on the Property; and (3) was 4 entitled to remuneration for work he performed at the Property. (See generally Gallagher 5 Summary Judgment Order; Gallagher Damages Order.) 6 Second, these issues were actually litigated and decided in Gallagher. The 7 Superior Court held in its summary judgment order that (1) Ms. Gallagher, as trustee, had 8 “superior title and the right to possess and transfer ownership of the Property”; (2) Mr. 9 Freeze had “no legal or equitable ownership of the Property under Washington law”; 10 (3) the lien filed by Mr. Freeze had no legal basis and no legal effect; (4) Mr. Freeze’s 11 actions interfered with Ms. Gallagher’s right to use, sell, and possess the Property; and 12 (5) Mr. Freeze’s refusal to vacate the Property “constitutes a continuing trespass on the 13 Property.” (Gallagher Summary Judgment Order ¶¶ 2.1-2.10.) Then, the Superior Court 14 held in its order on Ms. Gallagher’s motion for damages, for a supersedeas bond pending 15 the resolution of Mr. Freeze’s appeal, and for contempt that (1) Mr. Freeze “claimed to 16 have an ownership interest in the Property based upon a common law theory that has no 17 other legal or equitable basis”; (2) Mr. Freeze had stored approximately 100 “unlicensed 18 and/or inoperable vehicles” on the Property “without any lawful authority”; (3) Mr. 19 Freeze had “no legal or equitable right to reside or even continue to be present on the 20 Property;” (4) Ms. Gallagher, as trustee for the Trusts, “has and has always had superior 21 title to the Property”; and (5) although Mr. Freeze performed work on the property, “any 22 amount of value added to the property by [Mr. Freeze] has not been shown, particularly 1 in light of the damage he has done to the property and [Ms. Gallagher’s] ability to resell 2 the property.” (Gallagher Damages Order ¶¶ 1.10-1.19, 1.25-1.26, 1.30.) 3 Third, Mr. Freeze had a full and fair opportunity to litigate these issues in 4 Gallagher. Mr. Freeze filed an answer and counterclaims; motions for a preliminary 5 injunction and for summary judgment; responses to Ms. Gallagher’s motions and replies 6 in support of his own motions; and various “frivolous motions and requests.” (See 7 Gallagher Summary Judgment Order at 1 (listing filings considered by the court); 8 Gallagher Damages Order at 1-2 (same); id. ¶ 1.28 (noting Mr. Freeze’s frivolous 9 filings); id. ¶ 1.31 (concluding that “all briefing and declarations [regarding the motion] 10 were provided pursuant to the agreed briefing schedule set by this Court with input from 11 the parties at hearing in August”).) He also had an opportunity to be heard at a hearing in 12 August 2022. (Gallagher Damages Order ¶ 1.31.) Although Mr. Freeze filed an appeal, 13 he did not pursue it, and the Court of Appeals eventually dismissed the appeal as 14 abandoned. 15 Finally, all of these issues were necessary to decide the merits in Gallagher, which 16 arose from a dispute over ownership and possession of the Property after Peter Freeze’s 17 death. (See generally Gallagher Complaint.) For these reasons, the court concludes that 18 Mr. Freeze’s claims are precluded by the Superior Court’s decisions in Gallagher. 19 To the extent Mr. Freeze argues that this case is really about interference with a 20 contract between himself, his father, and his grandfather (see Request at 1-2), that 21 argument, too, is foreclosed. Mr. Freeze stated at the July 12, 2024 hearing that he raised 22 his contract issue before the Skagit County Superior Court. After considering Mr. 1 Freeze’s filings, however, that court (1) ruled that Mr. Freeze had no legal or equitable 2 ownership interest in the Property or right to be present on the Property; (2) rejected Mr. 3 Freeze’s assertion that the work he performed on the Property resulted in an increase in 4 the value of the Property; and (3) concluded that Mr. Freeze had not shown that the work 5 he performed justified offsetting any amount of the supersedeas bond on appeal. 6 (Gallagher Damages Order at 1-2; id. ¶¶ 1.10, 1.16, 1.30, 2.11.) If Mr. Freeze believed 7 that the Superior Court’s rulings were incorrect or that it failed to consider arguments that 8 he raised before it, his recourse was to pursue his appeal of those orders in state court. 9 Rather than do so, he abandoned his appeal. Accordingly, the court concludes that the 10 Superior Court’s orders also preclude Mr. Freeze’s contract-based claims. 11 E. Leave to Amend 12 In general, a district court must provide a pro se litigant with notice of the 13 deficiencies of the complaint and an opportunity to amend if those deficiencies can be 14 cured. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). The court may, 15 however, deny leave to amend where amendment would be futile. Flowers v. First Haw. 16 Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. 17 Collection Serv., Inc., 911 F.2d 242 , 247 (9th Cir. 1990)). The court concludes that 18 amendment would be futile because Mr. Freeze effectively abandoned his claims by 19 failing to respond substantively to the Gallagher Defendants’ motion to dismiss and Mr. 20 Acuna’s joinder therein and because the claims are precluded by the Skagit County — 21 — — 22 — 1 Superior Court’s orders.3 Accordingly, the court dismisses Mr. Freeze’s claims, and this 2 action, with prejudice and without leave to amend. 3 IV. CONCLUSION 4 For the foregoing reasons, the court GRANTS the Gallagher Defendants’ motion 5 to dismiss (Dkt. # 63) and Mr. Acuna’s joinder therein (Dkt. # 77) and DISMISSES this 6 action with prejudice and without leave to amend. The court VACATES all unexpired 7 deadlines set in its July 12, 2024 minute order (Dkt. # 76). 8 Dated this 9th day of August, 2024. — 9 — A — 10 — 11 JAMES L. ROBART United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — 19 3 The court further notes that Mr. Freeze cannot state a claim under 18 U.S.C. § 1341 because it is a criminal statute for which there is no private civil right of action. See, e.g., Valero 20 v. Bac Home Loans Servicing, LP, 667 F. App’x 255, 255 (9th Cir. 2016) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979)). And Mr. Freeze cannot state a claim under 15 U.S.C. § 6602 (5)(B), which governs actions arising from a “Y2K failure” and expressly does not — 21 — create a new cause of action. 15 U.S.C. § 6602 (2) (defining a “Y2K failure” as the failure of a device or system to properly handle “year-2000 date-related data”); 15 U.S.C. § 6603 (b) — 22 — (“Nothing in this chapter creates a new cause of action[.]”).