Albertini v. San Diego County Sheriff Department

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CATHERINE E. ALBERTINI; and Case No.: 3:24-cv-00284-JES-SBC GREGORY E. ALBERTINI, 12 ORDER: Plaintiffs, [13] (1) DENYING MOTION FOR v. 14 EMERGENCY INJUNCTION SAN DIEGO COUNTY SHERIFF’S AND STAY OF EXECUTION [15] DEPARTMENT; SUPERIOR COURT; AS MOOT; 16 ANNE ACEBO-HOULIHAN; JESSE HOULIHAN; KEVIN T. RHINE, ESQ., (2) DENYING MOTION TO [17] GREGORY M. GARRISON, ESQ., DISQUALIFY JUDGE; 18 RODNEY DONOHOO., AND DOES 1250, (3) DENYING MOTION FOR [19] JUDICIAL NOTICE AS Defendants. 20 MOOT; [21] (4) DENYING MOTION TO [22] CORRECT PLEADING TITLE 23 PAGE AS MOOT; and [24] (5) DISMISSING CASE FOR 25 LACK OF FEDERAL SUBJECT MATTER [26] JURISDICTION [27] [ECF Nos. 1, 8, 11, 13] [28] 1 On February 22, 2024, Plaintiffs filed the instant action against various 2 Defendants, appearing to allege, in part, unlawful foreclosure and auctioning of property, 3 elder abuse, and judicial misconduct. ECF No. 1. Plaintiffs are partially requesting an 4 emergency injunction and declaratory judgment. Id. Plaintiffs also filed a motion to 5 disqualify and recuse district judge and magistrate judge based on perceived bias (ECF 6 No. 8), motion for judicial notice (ECF No. 11) and motion to correct pleading title page 7 to add defendants (ECF No. 13). The Court finds the matter suitable for determination on 8 the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. After due 9 consideration and for the reasons below, the Court DENIES the motion to disqualify and 10 recuse district judge and magistrate judge and DENIES AS MOOT the motion 11 emergency injunction and stay of execution, motion for judicial notice and motion to 12 correct pleading title page. Further, the Court DISMISSES this action for lack of federal 13 subject matter jurisdiction. 14 I. PROCEDURAL BACKGROUND 15 The Court recites the procedural background of the case as it relates to the pending 16 motions. On February 12, 2024, Plaintiffs filed the original complaint and motion for 17 emergency injunction and stay of execution in this case and a summons was issued the 18 same day. ECF Nos. 1, 2. On February 21, 2024, the Court issued an Order to Show 19 Cause (“OSC”) as to why this action should not be dismissed for lack of federal subject 20 matter jurisdiction. ECF No. 3. That same day, the Court issued an Amended OSC 21 correcting the original OSC, because a hearing date was mistakenly set and struck the 22 original OSC. ECF No. 4. On February 22, 2024, Plaintffs then filed a motion to 23 disqualify the district judge and magistrate judge. ECF No. 8. On February 26, 2024, the 24 Court issued a Second Amended OSC correcting a mistake in the Amended OSC (ECF 25 No. 4) which ordered “Defendants” to show cause as to why this action should not be 26 dismissed and struck the Amended OSC. ECF No. 9. The Second Amended OSC ordered 27 “Plaintiffs” to show cause why this action should not be dismissed for lack of federal 28 subject matter jurisdiction in writing by March 8, 2024. Id. 1 On March 7, 2024, Plaintiffs filed a motion for mandatory judicial notice 2 requesting the Court take judicial notice of numerous things, including the procedural 3 history of this case. ECF No. 11. On March 7, 2024, Plaintiffs also filed a response to the 4 Second Amended OSC and a motion to correct pleading title page to add Defendants due 5 to a filing mistake. ECF Nos. 12, 13. 6 II. MOTION TO DISQUALIFY JUDGE 7 A judge “shall disqualify himself in any proceeding in which his impartiality might 8 reasonably be questioned” or “[w]here he has a personal bias or prejudice concerning a 9 party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” [10] 28 U.S.C. § 455 (a), (b). Any bias must be evaluated under an “objective” standard that 11 focuses on if it would appear to a reasonable person with all the facts that a judge’s 12 impartiality may be questioned. United States v. Holland, 519 F.3d 909, 914 (9th Cir. 13 2008). The burden to show bias rests with the party moving to disqualify the judge. First 14 Interstate Bank v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000). “The 15 motion or affidavit must allege with particularity the facts that would convince a 16 reasonable person that a bias exists of a personal, not judicial, nature.” Guadarrama v. 17 Small, No. 09-CV-2544, 2010 WL 3171465 , at *1 (S.D. Cal. Aug. 10, 2010) (citing 18 United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)). Thus, “judicial rulings alone 19 almost never constitute [a] valid basis for a bias or partiality motion.” Liteky v. United 20 States, 510 U.S. 540, 555 (1994). 21 Plaintiffs explain their basis for perceived bias as follows. First, Plaintiffs state 22 “Petitioners argue that the honorable judges assigned to this case in this honorable court 23 are of honorable intent and both share stellar and enviable reputations, positions, 24 credentials, educational achievements, careers, statuses and character.” ECF No. 8 at ¶ 25 13. However, “Petitioners concern is bias due to the background, and career histories of 26 the district and magistrate judges assigned to [this] case.” ECF No. 8 at ¶ 14. Plaintiffs 27 then state, “[m]ost attorneys and justices share a liberal ideology based on Petitioners 28 experience.” ECF No. 8 at ¶ 15. Plaintiffs further state, “[t]he assigned justices share 1 financial interests in government insurance, employment, pension plans, and other 2 government incentives attaching to their backgrounds.” ECF No. 8 at ¶ 16. In the next 3 paragraph, Plaintiffs then begin a discussion of their political beliefs, stating “Petitioners 4 have other concerns related to the political climate in the United States today.” ECF No. 5 8 at ¶ 17. Plaintiffs further state that they “voted to recall Governor Newsome and do not 6 believe that Joe Biden lawfully won the Presidential election in 2020.” ECF No. 8 at ¶ 21. 7 Plaintiffs then state the grounds for disqualification as follows: 8 “30. One of the judges in this case was appointed by Joe Biden, another it appears was appointed by Governor Newsome. [9] 10 31. One judge was endorsed by Senator Alex Padilla, and Diane Feinstein. The Petitioners filed complaints with both, one was ignored. Feinstein wrote a scathing [11] letter. [12] 32. One judge spent 7 years of his recent career working for the Superior Court in [13] San Diego as a judge. The Superior Court is a party in this case. [14] 33. The District judge, Honorable James Simmons, spent his entire pre-bench [15] career working for the San Diego County District Attorney’s office for the County 16 of San Diego as a deputy DA. The County is a party to this case, although has not been named as a Respondent in this petition. Without relief, the DA will be named [17] as a civil and criminal defendant should a lawsuit become necessary. [18] 34. The Petitioners would not be in court had the District Attorney investigated [19] these crimes, and done their job. Instead, the DA was a nexus in allowing these 20 crimes to persist. Catherine has sent a multitude of emails to Summer Stephan documenting serious crimes, harassment, and elder abuse, all of which were [21] ignored. [22] 35. The Petitioners suspect that a conflict of interest applies in this case. [23] 24 36. In 2021, Petitioner wrote a scathing letter to Honorable judge Pamela Parker who forwarded the correspondence to Judge Michael Smyth. Judge Smyth [25] endorsed Judge Simmons. Smyth wrote back to the Petitioner that she was 26 ‘unhappy with a court decision,’ ignoring crimes complained of.” [27] ECF No. 8 at ¶¶ 30-36. Plaintiffs then spend the remainder of their fifteen-page motion [28] 1 discussing their complaints and causes of action against the various defendants, including 2 their voting history and political party affiliation. ECF No. 8 at ¶¶ 18-25. 3 Plaintiff’s complaints all pertain to innuendo and perceived bias based on their 4 political beliefs. Plaintiffs have not stated any information that either judge worked on 5 any underlying matter involved in this action prior to their appointment. Further, 6 Plaintiffs have not alleged that either judge has a personal bias or prejudice either against 7 them or in favor of any adverse party. None of the stated reasons for disqualification 8 bears upon the impartially of either judge. In addition, this motion was not brought until 9 after the Court’s OSC for lack of subject matter jurisdiction. It appears this motion is 10 based solely on judicial actions taken by this Court. An adverse judicial ruling, without 11 more, fails to show bias on the part of the judge. See Liteky, 510 U.S. at 555 ; Holland, [12] 519 F.3d at 914 n.5. 13 Thus, Plaintiffs have failed to meet their burden to show a basis for bias and the 14 motion to disqualify judges is DENIED. 15 III. FAILURE TO ESTABLISH FEDERAL SUBJECT MATTER 16 JURISDICTION 17 “Federal courts are courts of limited jurisdiction ….” Gunn v. Minton, 568 U.S. 18 251, 256 (2013). There are two bases for federal subject matter jurisdiction: (1) federal 19 question jurisdiction under 28 U.S.C. § 1331 , and (2) diversity jurisdiction under 28 20 U.S.C. § 1332 . A federal court is constitutionally required to examine their subject matter 21 jurisdiction, before proceeding to the merits of a case, whether or not the parties raise the 22 issue. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Ruhrgas AG v. Marathon 23 Oil Co., 625 U.S. 574 , 577 (1999); United Inv’rs Life Ins. Co. v. Waddell & Reed, Inc., [24] 360 F.3d 960, 966 (9th Cir. 2004). “A plaintiff suing in a federal court must show in his 25 pleading, affirmatively and distinctly, the existence of whatever is essential to federal 26 jurisdiction, and, if he does not do so, the court, on having the defect called to its 27 attention or on discovering the same, must dismiss the case, unless the defect be corrected 28 by amendment.” Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th 1 Cir. 2001) (internal citations and quotation marks omitted), abrogated on other grounds 2 by Hertz Corp. v. Friend, 559 U.S. 77, 82-83 (2010). 3 In their response to the Second Amended OSC, Plaintiffs assert that federal subject 4 jurisdiction exists under the RICO Act, 18 U.S.C. § 1964 (a) and 42 U.S.C. § 1983 and 5 1985. ECF No. 12 at 3. Further Plaintiffs state that they made a mistake in their original 6 complaint by stating jurisdiction was made on the issue of diversity. ECF No. 12 at 3. 7 Plaintiffs then argues that this Court has a lawful requirement to “launch a criminal 8 investigation into insurance fraud, RICO crimes, and a conspiracy to violate the Plaintiffs 9 Constitutional and civil rights under 42 U.S.C. 1983, 1985, and 18 U.S.C. §241 , §242, 10 and §1033.” ECF No. 12 at 6. Plaintiffs allege they are “victims of an ongoing and 11 organized criminal enterprise scheme that will not cease until criminal investigations are 12 conducted, and prosecution is feared.” ECF No. 12 at 9. 13 The United States Constitution grants solely the Executive Branch the power to 14 enforce laws. U.S. Const. art. II, § 2, cl. 1; see also Springer v. Government of Philippine 15 Islands, 277 U.S. 189 . 202 (1928). The judiciary cannot exercise executive power. Id. 16 Plaintiffs request for this Court to “launch a criminal investigation” is not relief this Court 17 can grant. Only the Executive Branch can launch a criminal investigation. Further, 18 18 U.S.C. §§ 241 , 242 and 1033 are all criminal statutes and cannot be the basis of a civil 19 lawsuit. Although Plaintiffs style this action as an action to protect their constitutional 20 rights and cite to the civil Racketeer Influenced and Corrupt Organizations (“RICO”) 21 Act, all of Plaintiffs’ claims implicate the same injury, the loss of their property. 22 See Laconico v. Cal-Western Reconveyance Corp., No. 17-cv-698, 2017 WL 2877098 , at 23 *5 (N.D. Cal. July 6, 2017) (“Courts have consistently found that actions challenging 24 foreclosures implicate the same unitary harm.”) 25 Plaintiffs causes of action and remedies sought include unjust enrichment in the 26 auction sale of their home and seeks to quiet title. ECF No. 1 at 42. They also seek a stay 27 of execution and injunction prohibiting the Sheriff from auctioning their home. Id. These 28 causes of action revolve around the auction sale of their home. Plaintiffs civil RICO Act 1 claim is also premised on the same harm—loss of their home. 2 If the constitutional claims presented to a United States District Court are 3 inextricably intertwined with the state court’s judicial proceeding, then the District Court 4 is in essence being called upon to review the state court decision. Feldman, 460 U.S. at 5 482 fn. 16. This, the District Court may not do. Id. The ultimate relief Plaintiffs seek is 6 for this Court to enjoin and prevent the auction sale of their home that was ordered in San 7 Diego Superior Court. This Court cannot grant that relief. This Court lacks jurisdiction to 8 grant that relief. In their complaint, Plaintiffs state the Rooker-Feldman doctrine does not 9 apply, they are mistaken. See District of Columbia Court of Appeals v. Feldman, 460 10 U.S. 462 , 482 (1983) (“A United States District Court has no authority to review final 11 judgments of a state court in judicial proceedings. Review of such judgments may be had 12 only in [the U.S. Supreme Court].”) Further, federal courts must give full faith and credit 13 to state court judgments under 28 U.S.C. § 1738 and Article IV section 1 of the U.S. 14 Constitution. 15 Therefore, Plaintiffs’ response fails to establish federal subject matter jurisdiction 16 and this matter is DISMISSED with prejudice for lack of federal subject matter 17 jurisdiction. 18 IV. CONCLUSION 19 For the reasons set forth above, the Court: 20 1. DENIES as moot Plaintiffs motion for emergency injunction and stay of 21 execution; 22 2. DENIES Plaintiffs motion to disqualify judge; 23 3. DENIES as moot Plaintiffs motion for judicial notice; 24 4. DENIES as moot Plaintiffs motion to correct pleading title page; and 25 5. DISMISSES with prejudice this action for lack of subject matter jurisdiction. 26 The Clerk is directed to close the case. 27 / / / [28] I IT IS SO ORDERED. [2] 3 Dated: March 8, 2024 = 4, 4 Honorable James E. Simmons Jr. 5 United States District Judge