Sikking v. Housing of Urban Development (HUD)

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JEFF SIKKING, et al. Case No.: 19CV1004-LAB (KSC)

12 Plaintiffs,

ORDER GRANTING IN PART

13 v. MOTIONS TO DISMISS; AND

14 RICHARDSON C. GRISWOLD, et

ORDER DISMISSING CLAIMS

al.

15 FOR LACK OF STANDING

Defendants.

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[DOCKET NUMBERS 30, 32.]

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20 Defendant filed two motions (Docket nos. 30, 32) to dismiss the second

21 amended complaint (“SAC”) (Docket no. 27). When Plaintiffs submitted what

22 appeared to be multiple oppositions to each motion, the Court issued an order

23 requiring them to file a single written opposition. (See Docket no. 51.) The Court

24 also pointed out that the oppositions they had filed up to that point were

25 inadequate, and if allowed to stand as Plaintiffs’ opposition, the motions would be

26 granted. Plaintiffs filed a new opposition (Docket no. 59), which the Court accepts

27 as their opposition to the motions to dismiss. The motions are fully briefed and

28 ready for adjudication.

1 The Court also separately ordered Plaintiff Qiyam-Leon Pogue to show

2 cause why his claims should not be dismissed for lack of standing. His standing is

3 addressed separately below.

4 Motions to Dismiss

5 Legal Standards

6 The Court construes pro se pleadings liberally, King v. Atiyeh, 814 F.2d 565,

7 567 (9th Cir.1987), but will not supply facts plaintiffs have not pleaded. See Ivey v.

8 Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982).

9 A Rule12(b)(6) motion to dismiss tests the sufficiency of the complaint.

10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Fed. R. Civ. P. 8(a)(2),

11 only “a short and plain statement of the claim showing that the pleader is entitled

12 to relief,” is required, in order to “give the defendant fair notice of what the . . . claim

13 is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.

14 544, 554–55 (2007). “Factual allegations must be enough to raise a right to relief

15 above the speculative level . . . .” Id. at 555. “[S]ome threshold of plausibility must

16 be crossed at the outset” before a case is permitted to proceed. Id. at 558 (citation

17 omitted). The well-pleaded facts must do more than permit the Court to infer “the

18 mere possibility of conduct”; they must show that the pleader is entitled to relief.

19 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

20 When determining whether a complaint states a claim, the Court accepts all

21 allegations of material fact in the complaint as true and construes them in the light

22 most favorable to the non-moving party. Cedars-Sinai Medical Center v. National

23 League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation

24 omitted). But the Court is “not required to accept as true conclusory allegations

25 which are contradicted by documents referred to in the complaint,” and does “not

26 . . . necessarily assume the truth of legal conclusions merely because they are

27 cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328

28 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted).

1 Request for Judicial Notice

2 Defendant Richardson Griswold’s motion (Docket no. 30) includes a request

3 for judicial notice of state and federal court records and documents, which the

4 request authenticates. The documents are all relevant and appropriate for judicial

5 notice. See Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014).

6 Plaintiffs have not opposed this request and do not dispute the documents’

7 authenticity.

8 The request is GRANTED. The Court takes notice of these records for the

9 purpose of recognizing the judicial acts or events that the orders or filings

10 represent. See Ramirez v. United Airlines, Inc., 416 F. Supp. 2d 792, 795 (N.D.

11 Cal., 2005).

12 The noticed documents show that the State of California brought an action

13 against Jeffrey and Barbara Sikking for public nuisance and violations of the San

14 Diego Municipal Code, and seeking appointment of a receiver. The complaint

15 alleged that since 2015 various code violations on the Sikkings’ property required

16 remediation, and that efforts to correct the violations had been ineffective.

17 Specifically, the house was alleged to be dilapidated, infested with insects,

18 extensively altered by unpermitted and unsafe means, and unsafe to live in. The

19 house was alleged to present a fire hazard, and the outdoor area was alleged to

20 be filled with piles of garbage and discarded belongings such as indoor furniture

21 and carpeting. The property was alleged to be the site of extensive nuisance and

22 violent criminal activity, which from 2014 through early 2017 resulted in the police

23 being called to the property 117 times.

24 According to the complaint, Jeffrey Sikking told a City Attorney Investigator

25 there were only two legitimate tenants on the property, and that he was trying to

26 evict the transients, prostitutes, and drug users who were squatting on the

27 property. The complaint alleges that in 2016, the house was damaged by two

28 separate fires, both of which were determined to be caused by arson. The records

1 show that the state court appointed Griswold as receiver, and issued an order

2 authorizing him to sell the property.

3 Plaintiffs brought two earlier actions in this Court. In case 17cv1091-BAS

4 (JMA), Leon-Qiyam Pogue, Jeff Sikking, and Barbara Sikking sued both Griswold

5 and the San Diego Superior Court. The case was dismissed after Plaintiffs failed

6 to pay the filing fee or comply with Court orders. In case 18cv634-MMA (JMA), Jeff

7 and Barbara Sikking sued Griswold, the San Diego City Attorney, and San Diego

8 Code Enforcement. Griswold moved to dismiss for lack of jurisdiction as well as

9 failure to state a claim. The motion, which Plaintiffs failed to oppose, was granted

10 but the case was not immediately dismissed. Instead, the Court ordered Plaintiffs

11 to show cause why the action should not be dismissed for lack of jurisdiction. When

12 they failed to respond, the case was dismissed for lack of jurisdiction.

13 Subject Matter Jurisdiction

14 The Court is required to raise and address jurisdictional questions, sua

15 sponte if necessary, whenever a doubt arises. Mt. Healthy City School Dist. Bd. of

16 Ed. v. Doyle, 429 U.S. 274, 278 (1977). Subject matter jurisdiction is presumed to

17 be lacking, until the party invoking the Court’s jurisdiction proves otherwise.

18 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

19 The SAC cites various federal statutes in support of some of its eleven

20 claims. These include claim 1 (quiet title), claim 4 (due process and equal

21 protection), claim 5 (perjury and related claims), claim 6 (racketeering based on

22 fraud, conspiracy, and embezzlement), claim 7 (fraud), and claim 8 (unjust

23 enrichment and various torts). The SAC also includes a laundry list of violations

24 of federal law. (SAC, ¶ 2.) The statutes are interwoven among the various claims.

25 The parties are not diverse. The SAC must therefore rely on federal question

26 jurisdiction. However, it is clear almost none of the claims arise under the U.S.

27 Constitution or any provision of federal law. For the bulk of the claims, the SAC

28 must rely on supplemental jurisdiction. But before the Court can exercise

1 supplemental jurisdiction, the SAC must include a substantial federal claim. See

2 Hoeck v. City of Portland, 57 F.3d 781, 785 (9th Cir.1995) (citing 28 U.S.C. §

3 1367(a)). As discussed below, none of the claims — including the federal claims

4 — are adequately pled.

5 Defendants’ briefing raised an additional jurisdictional issue, namely the rule

6 announced in Barton v. Barbour, 104 U.S. 126 (1881). See Freeman v. County of

7 Orange, 669 Fed. Appx. 348, 348 (9th Cir. 2016) (holding that the Barton rule is

8 jurisdictional and applies to receivers appointed by state courts). Plaintiffs’

9 opposition failed to address this at all. In its earlier order, the Court warned

10 Plaintiffs that their failure to offer an effective opposition would result in the

11 motions’ being granted. The Court therefore finds that it lacks jurisdiction over any

12 claims against Griswold.

13 Abandonment

14 When they amended, Plaintiffs omitted a number of Defendants they had

15 named in their earlier complaints. As a result, claims against those Defendants are

16 no longer part of this action, and those Defendants are no longer parties. See Hal

17 Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

18 1990) (because amended complaint supersedes earlier complaint, defendants not

19 named in the amended complaint are no longer parties).

20 Res Judicata, Collateral Estoppel, and Abstention

21 The Court ordered Defendants to show whether the state court action was

22 still pending, and Defendant Griswold filed a response (Docket no. 100) showing

23 that the state court enforcement action is still pending and is likely to remain so for

24 some time.

25 Defendants raise the defenses of res judicata and collateral estoppel. These

26 both require a final decision on the merits. See Stewart v. U.S. Bancorp, 297 F.3d

27 953, 956 (9th Cir. 2002). See also Myung Choi v. Bd. of Trustees of Calif. State

28 Univ., 2015 WL 13762166, at *4 (C.D. Cal., Feb. 13, 2015) (staying federal action

1 while waiting for a likely claim-preclusive state court order to become final on

2 appeal). The state court action is not yet final. The dismissal in case 17cv1091 was

3 based on failure to pay the filing fee. The decision in case 18cv634-MMA (JMA)

4 that the Court lacked jurisdiction over the Sikkings’ claims is final, though dismissal

5 for lack of jurisdiction is not a decision on the merits for most purposes. See

6 generally Stewart, 297 F.3d 953. Its preclusive effect is limited to issues actually

7 decided, i.e., that the Court had no jurisdiction over the claims raised there. See

8 Iinuma v. Bank of Am., N.A., 2015 WL 1247015, at *3 (D. Haw. Mar. 17, 2015).

9 The only issue decided in case 18cv634 was that the Sikkings’ sole claim, for an

10 injunction prohibiting the sale of their home, had become moot when the home

11 was sold. It has little application here.

12 Abstention, by contrast, applies when the state court action is still pending.

13 Defendants ask the Court to abstain under Younger v. Harris, 401 U.S. 37 (1971),

14 although abstention under Colorado River Water Conservation Dist. v. United

15 States, 424 U.S. 800 (1976) may apply. But identifying which one applies is not

16 crucial. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987) (recognizing

17 that identifying the correct type of abstention is less important than giving force to

18 a “complex of considerations” intended to promote comity).

19 The Supreme Court has made clear that lower courts should not act to

20 restrain either a state court criminal action or a civil action implicating important

21 state interests, if the plaintiff has an adequate remedy at law. Pennzoil, 481 U.S.

22 at 10–11. Here, entertaining Jeff and Barbara Sikking’s claims that seek to

23 relitigate or call into question the state court’s rulings would fall afoul of Younger.

24 To the extent any of those claims survive, the Court would likely be required to

25 stay the case, pending the outcome of the state court enforcement action. See

26 Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004) (en banc) (holding that

27 when damages are at issue, court should abstain by deferring judgment, rather

28 than by dismissing the action).

1 Receiver’s Absolute Immunity

2 Defendant Griswold also raised the defense of quasi-judicial immunity. As a

3 court-appointed receiver, he contends, he is absolutely immune for acts taken to

4 carry out the state court’s orders. Plaintiffs have not attempted to show he acted

5 in the clear absence of all jurisdiction, nor could they do so on the facts here. See

6 Mullis v. U.S. Bkrtcy Ct. for Dist. of Nev., 828 F.2d 1385, 1390 (9th Cir. 1987)

7 (holding that a receiver derives his immunity from the judge who appointed him,

8 and loses it only if he acts in the clear absence of all jurisdiction). The state court

9 ordered Griswold to bring the property into compliance, and authorized him to sell

10 it. At most, Plaintiffs claim Griswold acted improperly as he was carrying out those

11 orders. This is not enough to strip him of immunity. See New Alaska Development

12 Corp. v. Guetschow, 869 F.2d 1298, 1304 (9th Cir. 1989) (holding that malice,

13 corrupt motives, or dishonesty do not deprive a court-appointed receiver of

14 absolute immunity). His argument is well taken, see id. at 1302–03 (discussing

15 immunity for court-appointed receivers) and Plaintiffs have not opposed it.

16 Immunity is not jurisdictional. Alta Gold Mining Co. v. Aero-Nautical Leasing

17 Corp., 656 Fed. Appx. 316, 318 (9th Cir., 2016). Nevertheless, it is clear Plaintiffs’

18 claims against Griswold cannot succeed for this reason as well, and any

19 amendment of claims against him would be futile.

20 Failure to State a Claim

21 The only named Defendants still in the case, besides Griswold, are the City

22 of San Diego and the San Diego City Planning & Development, Code Enforcement

23 Division. The only allegations the SAC makes against these two Defendants are

24 that Griswold used their facilities to carry out his wrongful activities, that they knew

25 what Griswold was doing, and that they could have prevented him from doing it but

26 “sat idly by.” (SAC, ¶¶ 7–8, 24–26.) The complaint never says which facilities were

27 used, or how. It is likely that the SAC means (in part) that Code Enforcement

28 agents were involved in the eviction. But if so, they are shielded by the same quasi-

1 judicial immunity, because they were carrying out the state court’s orders and

2 acting under its authority.

3 While sitting idly by while someone else commits a preventable wrong may

4 be morally wrong, it generally does not create liability — at least, without a showing

5 of some duty to act or some other involvement (such as ratification of the wrongful

6 act). See Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002) (rejecting bystander

7 liability for constitutional violations); Chuman v. Wright, 76 F.3d 292, 294–95 (9th

8 Cir. 1996) (refusing to lump all defendants together for purposes of § 1983 claim,

9 and instead requiring that liability be based on each individual’s own conduct).

10 None of the claims are adequately pled. In particular, those claims with a

11 higher pleading standard (e.g. those premised on fraud or conspiracy to violate

12 civil rights) are wholly conclusory. See Blue Oak Medical Group v. State

13 Compensation Ins. Fund, 809 Fed. Appx. 344, 345 (9th Cir. 2020) (citing Fed. R.

14 Civ. P. 9(b)) (holding that RICO claim premised on mail and wire fraud had to be

15 pled with particularity); Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989)

16 (requiring that § 1983 claim for conspiracy to violate civil rights must be pled with

17 particularity). The SAC alleges generally that “each Defendant conspired with each

18 other,” without providing any specifics, such as what they agreed to do. (Id., ¶ 14.)

19 the SAC also concludes, without pleading facts, that the underlying foreclosure

20 and eviction were fraudulent and wrongful.

21 Furthermore, it is clear that some of the claims cannot be salvaged by

22 amendment. For example, Plaintiffs attempt to sue Defendants under criminal

23 statutes or other statutes that lack a private right of action. See Grajeda v. Bank

24 of America, 2013 WL 2481548, at *2 (S.D. Cal., June 10, 2013) (collecting cases

25 for the principle that criminal statutes generally do not create private rights of

26 action).

27 The SAC as a whole cites numerous statutes and theories of recovery,

28 without alleging any facts that would show why they apply. Claims 4 through 10

1 consist solely of labels, conclusions, and demands for damages or other relief; and

2 reiterating that the eviction was wrongful, without explaining why. And the caption

3 strings together at least 22 federal statutes, several California statutes, and various

4 other torts or forms of relief (e.g., defamation, libel and slander of title, quiet title,

5 wrongful eviction, fraud, bad faith, trespass, malicious prosecution, bad faith,

6 embezzlement, intentional infliction of emotional distress, stalking, and elder

7 abuse).

8 At the heart of it, however, Plaintiffs are arguing that Griswold, with the City’s

9 complicity, wrongly took the property, evicted them, and sold it. The SAC implies

10 that Griswold somehow deceived the state court into issuing orders permitting him

11 to do all this for his own benefit, without explaining what he did or how any of the

12 other Defendants were involved.

13 Assuming Plaintiffs have one or more viable claims, the Court will likely be

14 required to abstain until the state court action concludes. But at present, they have

15 not pled a substantial federal claim, or any other claim for that matter. There is no

16 reason to stay the case over which the Court lacks jurisdiction. Unless Plaintiffs

17 can plead at least one federal claim, this action must be dismissed.

18 Plaintiff Pogue’s Standing

19 On January 11, the Court ordered Plaintiff Leon-Qiyam Pogue to show why

20 he has standing to bring his claims. The Court is required to raise jurisdictional

21 issues, sua sponte if necessary. Mt. Healthy,429 U.S. at 278. This includes Article

22 III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992).

23 The Court cautioned Pogue that the burden fell on him to show he has

24 standing, see id. at 560, and that until he did, jurisdiction is presumed to be lacking.

25 See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pogue

26 filed a response, which almost entirely fails to address injury-in-fact or traceability

27 under Lujan.

28 / / /

1 Pogue’s response argues vehemently that his rights were violated, and that

2 this by itself is enough to establish standing. His interest in the property appeared

3 to be indirect and speculative, however. The Court’s order pointed out that Pogue

4 said he had been living in a homeless shelter in downtown San Diego for the past

5 seven years. Accepting that as true, it was unclear what interest of his in the

6 Sikkings’ property was invaded. To be sure, the Sikkings’ loss of their home

7 amounts an injury-in-fact for them. But it does not follow that Pogue, whose

8 relationship with the Sikkings appeared to be entirely contractual, did.

9 Pogue alleged he had an agreement with the Sikkings to perform

10 maintenance on the property. In is reply, he explains that the Sikkings agreed to

11 compensate him for this out of rent proceeds or the sale of their home. But his

12 interest in that contract appears to be incidental to any duty Defendants may have

13 owed to the Sikkings, or any interest the Sikkings may have had in owning their

14 property. See In re Gold Strike Heights Homeowners Ass’n, 2018 WL 3405473, at

15 *6 (9th Cir. B.A.P. July 12, 2018) (holding that non-owner’s contractual relationship

16 with property owner did not confer standing to sue for wrongful foreclosure). See

17 also Dang v. Oakland Police Dept., 2014 WL 793613, at *12 (N.D. Cal., Feb. 26,

18 2014) (non-party to promissory note lacked standing to challenge nonjudicial

19 foreclosure).

20 Pogue also fails to show that any of his claimed injuries are fairly traceable

21 to Defendants. The Sikkings’ failure to pay Pogue for work he did on the property,

22 and the death of Pogue’s common law wife in a car accident long after the eviction

23 are not fairly traceable to Defendants.

24 The only point in Pogue’s response addressing anything in the Court’s order

25 to show cause is his claim that he stored tools and other property at the Sikkings’

26 house, and that at the time of the eviction Griswold would not allow Pogue to enter

27 the house to retrieve them. He also argues that Griswold had Jeff Sikking

28 handcuffed, but that injury is Sikking’s, not Pogue’s. Pogue says Griswold

1 threatened to have him arrested, but does not say he was ever arrested or even

2 detained. Griswold is the only Defendant alleged to have participated in these

3 actions. While loss of his tools would amount to an injury-in-fact, the Court lacks

4 jurisdiction over claims against Griswold, as discussed above.

5 The Court therefore finds he has not met his burden of establishing

6 jurisdiction over any of his claims. Pogue’s claims are DISMISSED WITHOUT

7 PREJUDICE, BUT WITHOUT LEAVE TO AMEND, for lack of jurisdiction.

8 Conclusion and Order

9 For the reasons set forth above, all claims by Plaintiff Pogue are DISMISSED

10 for lack of jurisdiction. The motions to dismiss are GRANTED IN PART. All claims

11 against Defendant Griswold are DISMISSED WITHOUT PREJUDICE BUT

12 WITHOUT LEAVE TO AMEND, for lack of jurisdiction. All other claims are

13 DISMISSED for failure to state a claim and failure to invoke the Court’s jurisdiction.

14 Abstention is likely appropriate. However, Plaintiffs cannot plead at least one

15 substantial federal claim, this action can be dismissed without the need for

16 abstention.

17 No later than 28 calendar days from the date this order is issued,

18 Plaintiffs may seek leave to file a third amended complaint. They should file an ex

19 parte motion for leave to amend that complies fully with Civil Local Rule 15. An ex

20 parte motion that does not comply fully with this rule may be rejected for filing,

21 which could result in dismissal of the case.

22 The proposed third amended complaint must correct the defects this order

23 has identified. It must not include claims against Griswold, Chase Bank, or any of

24 the previously-dismissed Defendants.

25 Defendants may file an opposition within 21 calendar days of the date a

26 motion for leave to amend is filed.

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1 If Plaintiffs fail to show that they can successfully amend their complaint or

2 ||fail to file an ex parte motion within in the time permitted, this action may be

3 || dismissed without further notice to them.

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5 IT IS SO ORDERED.

6 || Dated: February 1, 2021

7 ( Lif 4. (By Wy

8 Honorable Larry Alan Burns

9 United States District Judge

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