Lopez v. Morley 25 LLC (LP)

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LEON G. LOPEZ OWNER & Case No.: 23-cv-00591-DMS-JLB EXECUTOR & TRUSTEE & [12] ADMINISTRATOR OF THE JOHN R. ORDER (1) GRANTING 13 DUNSTAN ESTATE AND LIVING PLAINTIFF’S MOTION TO TRUST, PROCEED IN FORMA PAUPERIS [14] AND (2) DISMISSING COMPLAINT Plaintiff, 15 FOR FAILING TO STATE A CLAIM v. UPON WHICH RELIEF CAN BE [16] GRANTED PURSUANT TO 28 U.S.C. MORLEY 25 LLC/LP, HALLA 17 § 1915(e)(2)(B)(ii) ELSINEITTI, ANTHONY LANG, RAEA 18 LANG, JAMES CAPUTO, TARA BURD, STUART FURMAN, MICHAEL [19] CONTRERAS, AND ANDREW 20 GREEFFIN, 21 Defendants. [22] 23 Plaintiff Leon G. Lopez has submitted a Complaint (ECF No. 1) along with a request 24 to proceed in forma pauperis (“IFP”). (ECF No. 2.) For the following reasons, Plaintiff’s 25 motion to proceed IFP is granted, and Plaintiff’s complaint is dismissed. 26 A. Motion to Proceed IFP 27 Plaintiff’s application to proceed IFP indicates his only source of income is his 28 spouse’s monthly employment income of $1,400, and retirement of $874 per month. (Id. 1 at 1-2.) Plaintiff reports owning two vehicles, one of which he reports is in the junk yard, 2 and the other salvaged and having a value of $5,000. (Id. at 3.) This Court finds Plaintiff’s 3 application and affidavit are sufficient to show he is unable to pay the fees or post securities 4 required to maintain this action. See Civil Local Rule 3.2(a). Accordingly, Plaintiff’s 5 motion to proceed IFP pursuant to 28 U.S.C. § 1915 (a) is GRANTED. 6 B. Sua Sponte Screening Under 28 U.S.C. § 1915 (e)(2) 7 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 8 any person proceeding IFP pursuant to 28 U.S.C. § 1915 (a) is subject to a mandatory and 9 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 10 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 11 immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 12 845, 845 (9th Cir. 2001) (stating “the provisions of 28 U.S.C. § 1915 (e)(2)(B) are not 13 limited to prisoners.”). Prior to its amendment by the Prison Litigation Reform Act, the 14 former 28 U.S.C. § 1915 (d) permitted sua sponte dismissal of only frivolous and malicious 15 claims. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). The newly enacted [16] 28 U.S.C. § 1915 (e)(2), however, mandates that the court reviewing a complaint filed 17 pursuant to the IFP provisions of section 1915 make and rule on its own motion to dismiss 18 before directing that the complaint be served by the U.S. Marshal pursuant to Fed. R. Civ. 19 P. 4 (c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits, but requires a district court to 20 dismiss an in forma pauperis complaint that fails to state a claim.”); see also Barren v. 21 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting the “the language of 22 § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 23 A complaint must have a “short and plain statement of the claim showing the pleader 24 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the defendant fair 25 notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 545 (2007) (cleaned up). A complaint devoid of this is subject to 27 dismissal for failure to state a claim upon which relief can be granted. Id. at 545-55 . 28 / / / 1 1. Background 2 Plaintiffs allegations stem from the distribution of the estate of John R. Dunstan, 3 Plaintiff’s late son-in-law, and the sale of apartments by that estate. The apartments at 4 issue are located at 2551-2555 Ulric St, San Diego, CA 92101. (See ECF No. 1-2 at 5.) 5 Plaintiff alleges Mr. Dunstan’s will was falsified by Defendant Halla Elsineitti, therefore 6 the distribution of Mr. Dunstan’s estate was improper; and the sale of the Ulric Street 7 property by the estate to Defendant Morely 25, LP was fraudulent. (Compl. ¶ 2.) 8 Plaintiff brings this action against Morley 25, LP and Halla Elsineitti who “formed 9 a RICO Court Cartel,” and attorneys Rachael Callahan, Andrew H. Griffin, James Caputo, 10 Stuart Furman, and Tara Burd. (See generally Compl.; Civil Case Coversheet.) Though 11 not named as Defendants in the case caption or civil case cover sheet, Plaintiffs allegations 12 suggest the following individuals are also alleged to be defendants in this matter: Anthony 13 Lang, Rayea Lang, the Honorable Katherine Bacal, the Honorable Julia C. Kelty, and 14 Harold G. Ayer. (Compl. ¶¶ 4, 8, 13.) Plaintiff asks this Court to find that certain 15 Defendants committed forgery, falsification of documents and fraud. Plaintiff further asks 16 this Court to find there to be a “RICO Court Cartel” where Defendants used the courts to 17 launder fraudulent money. Plaintiff additionally asks this Court to order the arrest of Ms. 18 Elsineitti, Mr. Lang, Ms. Lang, and their attorneys for allegedly falsifying Mr. Dunstan’s 19 will. (Id. ¶ 13.) Plaintiff additionally alleges attorneys Mr. Furman, Ms. Burd, and Mr. 20 Caputo violated their ethical duties as attorneys. (Id. ¶¶ 3, 7.) Finally, Plaintiff asks this 21 Court to issue a declaratory judgment that Plaintiff is the owner of the property at issue. 22 (Id. ¶ 12.) 23 2. Maliciousness 24 A “district court may dismiss a complaint as malicious if it is plainly abusive of the 25 judicial process or merely repeats pending or previously litigated claims.” Adefumi v. 26 Prosper, 368 F.Supp.3d 811, 813 (E.D. Pa. 2019) (citation omitted). A claim is malicious 27 when it is “filed with the intention or desire to harm another.” Knapp v. Hogan, 738 F.3d 28 1106, 1109 (9th Cir. 2013). “The test for maliciousness is a subjective one and requires 1 the court to determine the good faith of the applicant.” Vega v. JPMorgan Chase Bank, 2 N.A., 654 F.Supp.2d 1104, 1121 (E.D. Cal. 2009) (cleaned up). 3 Plaintiff has filed at least fifteen prior lawsuits involving variations of the same 4 parties in this case in San Diego Superior Court. See, e.g., Morley 25 LP v. Leon Lopez, 5 37-2018-00010600-CU-PO-CTL (fraud); Elsineitti v. Leon Lopez, 27-2014-000819886 CU-BC-CTL (breach of contract); Leon Lopez v. Michael Contreras, 37-2022-000333547 CU-PT-CTL (elder/dependent adult abuse); Leon Lopez v. Michael Contreras, 37-20228 00000156-CU-PT-CTL (elder/dependent adult abuse); Leon Lopez v. Michael Contreras, 9 37-2021-00045651-CU-PT-CTL (temporary restraining order); Elsineitti v. Leon Lopez, 10 37-2017-00006633-CU-HR-CTL (harassment); Leon Lopez v. The State Bar of California 11 and James Caputo, 37-2016-00036669-CU-MC-CTL (complaint against attorney James 12 Caputo); Leon Lopez v. The State Bar of California and Harold Ayer, 37-2016-0003665813 CU-MC-CTL (complaint against attorney Harold Ayer); Leon Lopez v. County of San 14 Diego, 37-2016-00033771-CU-RI-CTL (civil RICO); Lopez v. City of San Diego, 3715 2016-00027693-CU-OR-CTL (property dispute); Leon Lopez v. Janice Hall, 37-201716 00003411-CU-PT-CTL (temporary restraining order); Leon Lopez v. Elsineitti, 37-201617 00023484-CU-MC-CTL (strategic lawsuit against public participation (SLLAP)); Leon 18 Lopez v. James Caputo, 37-2016-00021719-CU-MC-CTL (SLLAP); Leon Lopez v. 19 Elsineitti, 37-2014-00044097-CU-RI-CTL (civil RICO); Leon Lopez v. Elsineitti, 3720 2014-00012506-CU-MC-CTL (breach of contract). The Court takes notice of these related 21 San Diego Superior Court Cases.1 22 In addition to Plaintiff’s litigation history in San Diego Superior Court, he has 23 developed a record in this Court as well. The claims at issue are not new to this Court. 24 Plaintiff filed a nearly identical lawsuit less than two years ago. See Leon G. Lopez v. [26] 27 1 A “court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute.” Intri28 1 Michael Contreras, et al., No. 21-cv-1329, ECF No. 1 (S.D. Cal. 2021). This Court 2 dismissed with prejudice Plaintiff’s claims for falsification of documents, forgery, fraud, 3 money laundering, and under the False Claims Act. Lopez v. Contreras, No. 21-cv-1329, [4] 2021 WL 8450443 , at *2 (S.D. Cal. Dec. 1, 2021). The Court dismissed Plaintiff’s RICO 5 claim without prejudice, with leave to amend. Id. at *2-3 . Plaintiff makes similar 6 allegations here. 7 Given Plaintiff’s history litigating the same issues in this matter in his prior Superior 8 Court cases, the Court finds Plaintiff is not bringing this lawsuit in good faith. Indeed, this 9 Court already dismissed with prejudice Plaintiff’s exact forgery, fraud, and falsification of 10 documents claims in his prior federal court case. See Lopez, 2021 WL 8450443 , at *2. 11 Rather than filing an amended complaint in his prior federal action as to the RICO claim, 12 Plaintiff brought an entirely new lawsuit with nearly identical allegations. The Court 13 therefore finds Plaintiff’s allegations of fraud, falsification of documents, forgery, and 14 ethical complaints are both brought in bad faith and malicious. For the reasons set forth 15 below, in addition to being malicious, Plaintiff’s allegations are insufficient to state a claim. 16 3. Failure to State a Claim 17 a. Forgery, Fraud, and Money Laundering 18 Plaintiff alleges Defendants falsified documents, laundered money, forged his son19 in-law’s signature, and committed fraud. These allegations stem from an allegedly false 20 will of Plaintiff’s late son-in-law, John R. Dunstan, and probate proceedings in San Diego 21 Superior Court. As there is no civil cause of action for falsification or forgery of 22 documents, nor for money laundering, only Plaintiff’s fraud claim remains. Kilgore v. 23 Wells Fargo Home Mortg., No. 1:12-CV-0899, 2014 WL 3687494 , at *4 (E.D. Cal. July 24 23, 2014) (“forgery … cannot be maintained in a civil cause of action.”). There is a 25 heightened pleading standard for fraud, the circumstances of which must be pled “with 26 particularity.” Fed. R. Civ. P. 9(b). “Averments of fraud must be accompanied by ‘the 27 who, what, when, where, and how’ of the misconduct charged.” Kearns v. Ford Motor 28 Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (internal citation omitted). A fraud claim must 1 also plead the elements for fraud under state law. In California, those elements are “(a) 2 misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of 3 falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; 4 and (e) resulting damage.” Id. at 1126 (internal citation omitted). 5 For his fraud claim, Plaintiff requests this Court to issue a declaratory judgment 6 finding fraud “by defrauding Leon G. Lopez/John R. Dunstan Living/Trust ESTATE 7 (Owner, Leon G. Lopez).” (Compl. ¶¶ 14-15.) Plaintiff fails to state allegations with 8 particularity. It is unclear what the specific misrepresentation is, who knew it was false 9 and how, and whether there was an intent to defraud. Furthermore, the record in Plaintiff’s 10 first case in this Court demonstrates Plaintiff cannot establish he relied on the allegedly 11 fraudulent will. See Lopez, 2021 WL 8450443 , at *2 (stating “Plaintiff cannot plausibly 12 assert the justifiable reliance element” because he “disregarded, rather than relied on” the 13 will). The same is true here. Thus, the Court dismisses Plaintiff’s fraud claim with 14 prejudice. 15 b. RICO 16 “To state a civil RICO claim under 18 U.S.C. § 1964 (c), a plaintiff must allege (1) 17 conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as 18 ‘predicate acts’) (5) causing injury to the plaintiff's ‘business or property.’” Abcarian v. 19 Levine, 972 F.3d 1019, 1028 (9th Cir. 2020) (internal quotations and citations omitted). 20 Plaintiff alleges a “RICO Court Conspiracy” resulted in Plaintiff losing the Ulric 21 Street property. (Compl. ¶¶ 9, 12.) Plaintiff asks this Court to issue a declaratory judgment 22 finding Plaintiff to be the owner of that property and pay treble damages under RICO in 23 the amount of $11,006,172. (Id. ¶ 12.) Plaintiff alleges the attorneys involved in the 24 probate matter of his son’s estate misled Judge Katherine Bacal, presiding over the probate 25 matter, by submitting fraudulent documents to the court, (id. ¶ 3), and thereby inducing the 26 court to issue an improper ruling. (Id.) Accepting these facts as true, Plaintiff’s complaint 27 fails to allege a plausible claim for relief. Twombly, 550 U.S. at 570 . [28] 1 First, it is unclear if Plaintiff is attempting to name Judges Julia C. Kelety or 2 || Katherine Bacal as defendants in this matter. To the extent Plaintiff is attempting to do so, 3 is impermissible. Judges “are granted absolute immunity for their judicial actions in 4 ||order to safeguard independent and principled judicial decision making.” Meek v. Cty. of 5 || Riverside, 183 F.3d 962, 966 (9th Cir. 1999) (citing Forrester v. White, 484 U.S. 219 , □□□□ 6 ||27 (1988)). As such, Judges Kelety and Bacal are immune from civil liability for acts 7 || performed in their judicial capacity. Plaintiff's claims against Judges Kelety and Bacal are 8 || therefore dismissed without leave to amend. See Martinez v. United States, 838 Fed.App’x 9 || 662, 664 (9th Cir. 2020) (affirming district court dismissal without leave to amend because 10 || lawsuit challenged judicial conduct covered by immunity). 11 Second, Plaintiff has failed to sufficiently allege the pattern and predicate acts to his 12 ||RICO claim. Additionally, it is unclear from the pleadings who 1s involved in the alleged 13 |/enterprise. Without these details, Plaintiff's complaint fails to provide notice of the 14 |/particulars of his RICO claim. Accordingly, Plaintiff's RICO claim is dismissed, with 15 || leave to amend. 16 C. Conclusion and Order 17 For these reasons: 18 1. Plaintiff's Motion to Proceed IFP is GRANTED; 19 2. The Complaint is DISMISSED with prejudice as to the falsification of 20 documents, forgery, fraud, ethical, and money laundering claims; and 21 3. The Complaint is DISMISSED with leave to amend, as to the RICO claim. 22 Plaintiff may file an amended complaint within fourteen (14) days of this 23 Order. 24 IT IS SO ORDERED. 25 Dated: May 1, 2023 , ron Yn 26 Hon. Dana M. Sabraw, Chief Judge 17 United States District Court