Petition for Writ of Certiorari — Charles G. Kinney, Petitioner v. Three Arch Bay Community Services District, et al.

INDEX TO APPENDIX

Sequential No.

In Document

Appendix numbers at top of page

Appendix A: 3/3/21 “final” decision by the Ninth

Circuit which denied Kinney’s petitions for

rehearings in his CWA appeal [NC Dk #62] . . . 1

Appendix B: 11/16/20 dismissal order by the Ninth

Circuit for Kinney’s pending appeal of his CWA

citizen’s lawsuit [NC Dk #57-1]

3

Appendix C: 1947 aerial photo showing road

grading in Three Arch Bay and “white” fill

(grading spoils) dumped into the steep ravine

above Kinney’s location [USDC Dk #138-2] .... 7

Appendix D: 1964 aerial photo showing more road

grading in Three Arch Bay and several areas of

new fill (spoils) dumped into the steep ravine

above Kinney’s location [USDC Dk #138-3] .... 9

Appendix E: 3 photos showing the muddy storm

water runoff coming down the hill from CSD, onto

Kinney’s land, and flooding CalTrans’ South Coast

Highway where the City’s primary storm water

drain (to the ocean) is located [NC Dk #61] .... 11

Appendix F: photo of the exact location in Laguna

Beach where muddy storm water runoff comes out

from the City’s primary storm water drain and

goes into the ocean [at the red “X” mark] .... 12

1

APPENDIX A

Case: 18-56550

03/03/2021

DktEntry: 62

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY

Plaintiff-Appellant,

v.

No. 18-56550

D.C. No. 8:17-cv-01693-RGK-JC

Central District of California

Santa Ana (sic)

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al„

Defendants-Appellees.

FILED

MAR 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ORDER

Before: THOMAS, Chief Judge, TASHIMA and W.

FLETCHER, Circuit Judges.

The panel has voted to deny the petition for

panel rehearing.

The full court has been advised of the

petition for rehearing en banc and no judge has

requested a vote on whether to rehear the matter

en banc. See Fed. R. App. P. 35.

2

Kinney’s petition for panel rehearing and

petition~for "rehearing en banc (DockeF~Entry No7

61) are denied.

Non-party

Lukashin’s

request

publication (Docket Entry No. 59) is denied.

for

No further filings will be entertained in this

closed case.

3

APPENDIX B

Case: 18-56550

11/16/2020

DktEntry: 57-1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY

Plaintiff-Appellant,

v.

No. 18-56550

D.C. No. 8:17-cv-01693-RGK-JC

Central District of California

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al„

Defendants-Appellees.

FILED

NOV 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MEMORANDUM *

Appeal from the United States District Court for

the Central District of California R. Gary

Klausner, District Judge, Presiding

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W.

FLETCHER, Circuit Judges.

Charles G. Kinney appeals pro se from the

district court’s judgment dismissing his action

4

alleging violations of the Clean Water Act

(“CWA”), 33 UtS.G. §—lr365. We-have jurisdictionunder 28 U.S.C. § 1291. We review de novo a

dismissal for lack of subject matter jurisdiction

under the CWA. Wash. Trout v. McCain Foods,

Inc., 45 F.3d 1351, 1353 (9th Cir. 1995) (dismissal

for lack of subject matter jurisdiction under the

CWA). We may affirm on any basis supported by

the record. Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008). We affirm.

The district court properly dismissed for

lack of subject matter jurisdiction Kinney’s claims

in the first amended complaint against defendants

Three Arch Bay Community Services District,

Three Arch Bay Association, City of Laguna

Beach,

and

California

Department

of

Transportation. Dismissal of Kinney’s claims in

the complaint against defendants Viviani, John

Chaldu, and Lynn Chaldu was also proper

because Kinney failed to provide defendants with

adequate notice of the alleged CWA violations.

See 40 C.F.R. § 135.3 (notice under CWA must

provide sufficient information to permit recipient

to identify violation); Wash. Trout, 45 F.3d at

1354-55 (affirming dismissal of CWA action for

lack of subject matter jurisdiction where notice

was “insufficient as required by the regulations

promulgated under the CWA”).

The district court did not abuse its

discretion by dismissing the first amended

complaint without leave to amend because

amendment would have been futile. See

Cervantes v. Countrywide Home Loans, Inc., 656

5

F.3d 1034, 1041 (9th Cir. 2011) (setting forth

without leave to amend is proper when

amendment would be futile). The district court did

not abuse its discretion by declaring Kinney a

vexatious litigant and entering a pre-filing review

order against him because all of the requirements

for entering a pre-filing review order were met.

See Ringgold Lockhart v. County of Los Angeles,

761 F.3d 1057, 1062 (9th Cir. 2014) (setting forth

requirements for pre-filing review orders).

The district court did not abuse its

discretion by transferring the case to Judge

Klausner in the Western Division of the U.S.

District Court for the Central District of

California. See 28 U.S.C. § 1404(b) (intradistrict

transfer between divisions is within the discretion

of the district court); Jones v. GNC Franchising,

Inc., 211 F.3d 495, 498 (9th Cir. 2000) (standard

of review). \

We do not consider matters not specifically

and distinctly raised and argued in the opening

brief, or arguments and allegations raised for the

first time on appeal. See Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

* This disposition is not appropriate for

publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

6

** The panel unanimously concludes this case is

suitaMe-for“decision~without-orai~argument—See'

Fed. R. App. P. 34(a)(2). Kinney’s request for oral

argument, set forth in the opening brief, is denied.

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Case 8:17-cv-01693-RGK-JC Document 146 Filed 08/30/18 Page lot 10 PagelD#:2476

UNITED STATES DISTRICT COURT

GENT-RAL-DISTRIGT-OF-CALIFORNIA

CIVIL MINUTES - GENERAL

1

Case No. ; 8:17-cv-01693-RGK-JC

JS-6

I

| Date : August 30, 2018

Kinney v. Three Arch Bay Community Services District et al.

Title

nr

[ Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

Sharon L. Williams

Not Reported

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(IN CHAMBERS) Order Re: Defendant Three Arch Bay’s Motion for

Summary Judgment (DE 128); Defendant Charles Viviani’s Motion for

Security and Control (DE 15)

INTRODUCTION

On September 28, 2017, plaintiff Charles Kinney (“Kinney”) filed a complaint against

Defendants Three Arch Bay Community Services District (“TAB”), Charles Viviani (“Viviani”), John

and Lynn Chaldu (collectively, the “Chaldus”), and Does 1-10. Kinney later added the City of Laguna

Beach (the “City”), the Three Arch Bay Association (“TABA”), and the California Department of

Transportation (“Caltrans”) as defendants in this action. Kinney alleges three claims against the

defendants: (1) violation of the Clean Water Act (the “CWA”) for discharging pollutants without a

permit; (2) violation of the applicable permit; and (3) declaratory relie'f seeking a determination of the

parties’ rights and duties with respect to the CWA.

On January 5, 2018, the Court dismissed Kinney’s claims against Viviani and the Chaldus. The

Court has also now dismissed Kinney’s claims against Caltrans and the City for failure to comply with

the CWA’s notice requirement.

Now before the Court is TAB’S Motion for Summary Judgment and Viviani’s Motion for

Security and Control (DE 15, DE 128). For the following reasons, the Court GRANTS Viviani’s Motion

for Security and Control (DE 15). The Court also DISMISSES this case for lack of subject matter

jurisdiction so DENIES AS MOOT TAB Motion for Summary Judgment (DE 128).

II.

FACTUAL BACKGROUND

In the FAC, Kinney alleges the following:

Kinney owns a duplex on Virginia Way in Laguna Beach, California. His property sits below

Three Arch Bay, a subdivision managed by TAB or TABA, and across the street from properties owned

by Viviani and the Chaldus.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 10

Case 8:17-cv-01693-RGK-JC Document 146 Filed 08/30/18 Page 2 of 10 PagelD#:2477

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL

Date

Case No.

8:17-cv-01693-RGK-JC

Title

Kinney v. Three Arch Bay Community Services District et al.

August 30, 2018

Over the last 16 years, TAB has discharged pollutants along with storm water runoff from lands

under its control. More severe during rainstorms, the pollutants travel through Kinney’s property, across

his neighbors’ properties, across the Caltrans-controlled Pacific Coast Highway, into the City’s drainage

system, and eventually into the Pacific Ocean.

Kinney alleges that the defendants have violated the Clean Water Act by discharging pollutants

into the ocean either without or in violation of a National Pollutant Discharge Elimination System

(“NPDES”) permit. He requests damages as well as civil penalties and declaratory and injunctive relief.

III.

MOTION FOR SUMMARY JUDGMENT

A.

Judicial Standard: Subject Matter Jurisdiction

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) where a court lacks

subject matter jurisdiction over the plaintiffs claims. Fed. R. Civ. P. 12(b)(1). The burden of

demonstrating subject matter jurisdiction rests on the party asserting jurisdiction. Kokkonen v. Guardian

Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994).

B.

Discussion

TAB argues that the Court does not have subject matter jurisdiction over Kinney’s claims against

TAB due to a defective Sixty-Day Notice of Intent to File Suit. The Court agrees.

The CWA prohibits the discharge of pollutants into navigable waterways except as authorized by

the statute, and allows a citizen to bring a private suit against alleged violators. A citizen who wishes to

bring an action under the CWA must first comply with the statute’s sixty-day notice requirement. 33

U.S.C. § 1365(b)(1)(A). The notice must alert the violator of the “alleged violation,” the “specific

standard, limitation, or order” at issue, the activity that constitutes the violation, the persons responsible,

and the dates. 40 C.F.R. § 135.3(a).

If a plaintiff does not meet the statute’s requirements for notice, the action must be dismissed for

lack of jurisdiction. Wash. Trout v. McCain Foods, 45 F.3d 1351, 1354 (9th Cir. 1995) (citing Hallstrom

v. Tillamook Cty., 493 U.S. 20, 33 (1989)). The notice requirement is “strictly construed,” and merely

giving notice is not enough if the requirements set forth in the regulation are not satisfied. Id.

Here, Kinney’s Sixty-Day Notice is deficient because the notice fails to identify the “specific

standard, limitation, or order” that TAB allegedly violated. 40 C.F.R. § 135.3(a). Kinney’s notice states

that “over the last five years,” the “initial acts” of TABA and/or TAB have resulted in the discharge of

mud, silt, and other pollutants into the ocean. (See Notice, ECF No. 114-2, at 2.) It also states that the

“polluted discharges collected and directed by TABA and/or [TAB] that go into the ocean occur during

storm events, on the day(s) after a storm event(s), and/or during non-storm events.” Id. at 3. The notice

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 10

Case 8:17-cv-01693-RGK-JC Document 146 Filed 08/30/18 Page 3 of 10 PagelD#:2478

UNITED STATES DISTRICT COURT

CENTRAL.DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL

F

j Case No.

8:17-cv-01693-RGK-JC

Date ; August 30, 2018

!. Title..........

Kinney v. Three Arch Bay Community Services District et al.

further states that TABA and/or TAB “at various times” engage in construction projects and use goats

for fire control, which result in pollutant discharge into the ocean. Id. at 5. But Kinney’s notice does not

identify any “specific standard, limitation or order” that TAB is alleged to have violated. 40 C.F.R. §

135.3(a).

Kinney does not appear to dispute this. Instead, he argues that because TAB has no NPDES

permit, he need not identify the narrative and/or numeric standards that TAB violated. (Pl.’s Opp’n

2:13-15, ECF No. 135.) The CWA’s notice requirement, however, is “strictly construed.” Wash. Trout,

45 F.3d at 1354. The notice must identify “sufficient information to permit the recipient to identify the

alleged violations and bring itself into compliance.” S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d

1153, 1157-58 (9th Cir. 2002) (citation omitted). Here, Kinney’s notice fails to identify the specific

effluent standard or standards that TAB allegedly violated, so TAB did not have sufficient information

to identify the violation or bring itself into compliance. See id. Accordingly, Kinney’s Sixty-Day Notice

is deficient. The Court therefore must dismiss his claims against TAB for lack of subject matter

jurisdiction. l

Further, the Court sua sponte finds that Kinney’s notice is also deficient as to defendant TABA.

See Fed. R. Civ. P. 12(b)(1); 12(h)(3); Maria v. Loretta Lynch, No. CV 16-3107-AG (GJS), 2016 WL

4445225, at *3 (C.D. Cal. Aug. 19, 2016) (explaining that courts may raise the issue of subject matter

jurisdiction at any time during the action). As Kinney’s contentions against TAB and TABA are the

same, Kinney’s notice also fails to identify any specific standard, limitation, or order that TABA

allegedly violated. Accordingly, the Court must also dismiss Kinney’s claims against TABA for lack of

subject matter jurisdiction.

IV.

MOTION FOR SECURITY AND CONTROL

A.

Judicial Standard

Local Rule 83-8.1 declares that it is the policy of the Court to “discourage vexatious litigation.”

C.D. Cal. Civ. R. 83-8.1. To effectuate this stated policy, the Local Rules authorize courts in the Central

District of California to “order a party to give security in such amount as the Court determines to be

appropriate to secure the payment of any costs, sanctions, or other amounts which may be awarded

against a vexatious litigant.” C.D. Cal. Civ. L.R. 83-8.2. In addition to the Local Rules, the All Writs

Act vests the Court with inherent power to enter pre-filing orders against vexatious litigants. 28 U.S.C. §

1651.

Because the Court dismisses Kinney’s claims under Rule 12(b)(1), it does not reach TAB’S other arguments.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 10

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL

Date

Case No.

8:17-cv-01693-RGK-JC

Title

Kinney v. Three Arch Bay Community Services District et al.

B.

August 30, 2018

Discussion

Viviani asks the Court to declare Kinney a vexatious litigant, citing a flurry of litigation in state

and federal court initiated by Kinney pertaining to water drainage and flooding near Kinney’s Virginia

Way property. Viviani requests that the Court require Kinney to post security in the amount of $5,000

and enter a pre-filing order prohibiting Kinney from filing future actions in the Central District without

the Court’s preapproval.

A court may impose a pre-filing order only if it: (1) provides the vexatious litigant notice and an

opportunity to be heard, (2) compiles an adequate record of the cases and motions justifying the pre­

filing order, (3) makes substantive findings as to the frivolous or harassing nature of the litigant’s

conduct, and (4) narrowly tailors the pre-filing order to the specific harassing conduct at issue. De Long

v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). The first two requirements are procedural while the

latter two are substantive considerations that help the court to determine whether a party is a vexatious

litigant and fashion an appropriate remedy to prevent the party’s abusive litigation practices without

unduly restricting the party’s right to access the courts. Ringgold-Lockhart v. Cty. ofL.A., 761 F.3d

1057, 1062 (9th Cir. 2014).

1.

Notice

“Due process requires notice and an opportunity to be heard.” De Long, 912 F.2d at 1147

(citation omitted). Accordingly, a litigant must receive a chance to be heard before a court issues a pre­

filing order, which can be satisfied when the opposing party serves a motion to impose such an order.

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007). Here, Viviani filed a noticed

motion. Kinney received timely notice of the motion and responded with an opposition. {See Pl.’s Opp’n

to Def.s’ Mot. For Payment of Security, ECF No. 13.) The notice requirement is therefore satisfied.

2.

Adequate Record for Review

The district court must create an adequate record for review. To the extent possible, a court

should list all cases, litigation history, and other filings that it relies on to conclude that a party is, in fact,

a vexatious litigant. Ringgold-Lockhart, 761 F.3d at 1063-64; De Long, 912 F.2d at 1147 (“An

adequate record for review should include a listing of all the cases and motions that led the district court

to conclude that a vexatious litigant order was needed.”). The Court provides a synopsis of Kinney’s

vexatious activity below.

As Viviani points out, Kinney has filed at least twelve cases and twenty-five appeals since 2001

on matters related to his real property. In about half of these cases, Kinney sued his neighbors for

matters involving fences and easements near Kinney’s real property on Femwood Avenue in the Silver

Lake neighborhood of Los Angeles (the “Femwood Matter”). See Order Granting Motion to Declare

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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Case 8:17-cv-01693-RGK-JC Document 146 Filed 08/30/18 Page 5 of 10 Page ID #:2480

UNITED STATES DISTRICT COURT

CENTRAL.DISTRICT-OF-CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL

Date

Case No.

8:17-cv-01693 -RGK-JC

: Title

Kinney v. Three Arch Bay Community Services District et al.

August 30, 2018

Charles Kinney a Vexatious Litigant, Kinney v. Cooper, No. 2:15-cv-08910-PSG-JC (C.D. Cal. May 13,

2016), ECF No. 70. In the other half, Kinney sued regarding flooding or pooling of water near his real

property on Virginia Way in Laguna Beach, California. See, e.g., Kinney v. Three Arch Bay Cmty. Servs.

Dist., 8:16-cv-00796-RGK-JC, 2017 WL 2999684 (C.D. Cal. June 15, 2017); Keegan v. Viviani,

G048609, 2015 WL 3633602 (Cal. Ct. App. June 11, 2015) (collecting three cases); Kinney v. Chaldu,

No. G042618, 2010 WL 2746338, at *1 (Cal. Ct. App. July 13, 2010). For his conduct in the Femwood

Matter, courts have declared Kinney a vexatious litigant three times: Once in 2008, in Los Angeles

Superior Court; then in 2011, in the California Court of Appeal; and then in 2016, in the Central District

of California. See Kinney v. Clark, 12 Cal. App. 5th 724, 728-32 (Ct. App. 2017). Additionally, in 2014,

the State Bar of California Review Department disbarred Kinney for his vexatious conduct. See Matter

of Kinney, No. 09-0-18100, 2014 WL 7046611, at *1, *9 (Cal. Bar Ct. Dec. 12, 2014). While these

sanctions pertain to matters other than Kinney’s Virginia Way property at issue here, the Court takes

notice of Kinney’s vexatious activity throughout the state and federal court systems.

In the Virginia Way matter at hand, Kinney began filing complaints as early as 2002, when

Kinney sued Viviani, the Chaldus, the City, and other entities alleging that they impaired the drainage

system on Virginia Way and thereby caused flooding and water pooling. Chaldu, 2010 WL 2746338. In

that case, Kinney alleged state law claims of nuisance and trespass against the defendants. Id. Kinney

filed at least five appeals over the course of the litigation. See Kinney v. City ofLaguna Beach, No.

G041499, 2009 WL 4693266, at *1 (Cal. Ct. App. Dec. 10, 2009); Kinney v. Overton, 153 Cal. App. 4th

482, 497-98 (Ct. App. 2007). Although many of the appeals related to procedural matters, he appears to

have lost on all issues.2 Id. In one instance, a court sanctioned Kinney for appealing a non-appealable

order. See Kinney v. Overton, No. G037708, 2007 WL 2045560, at *1 (Cal. Ct. App. July 18, 2007). In

another instance, the California Court of Appeal allowed the lower court to grant Kinney leave to

amend, but lamented that Kinney’s pleading was “inartful” and “sloppy.” City of Laguna Beach, 2009

WL 4693266, at * 11. Opining that the “frustration” of the trial court was “understandable” and that the

trial court must be “exasperated at this point,” the appellate court explained that Kinney failed in his

pleadings to include all defendants he thought might be liable and failed purposely to pursue causes of

action he knew were possible options. Id. Finally, in 2010, having had enough of Kinney’s dilatory

tactics, the trial court dismissed Kinney’s nuisance and trespass complaint for failure to prosecute.

Chaldu, 2010 WL 2746338, at *3-*4. The Court of Appeal affirmed the dismissal. Id. at *11.

But Kinney was undeterred. In 2010 and 2011, Kinney again filed three separate lawsuits in state

court against TAB, Viviani, and the Chaldus, asserting state law claims of nuisance and trespass, again

arising from drainage problems on Virginia Way.3 Keegan, 2015 WL 3633602 at *1. Once again, the

2 In City ofLaguna Beach, the California Court of Appeal partially reversed the lower court’s judgment against Kinney, but

only on the ground that Kinney might be able to amend his complaint to state a claim. See 2009 WL 4693266, at *12.

3 To be sure, some of these lawsuits were filed by Marian Keegan, not Charles Kinney. However, Kinney served as Keegan’s

lawyer in the lawsuits, and Kinney is known to use other plaintiffs as puppets for the purpose of pursuing frivolous lawsuits.

See Matter ofKinney, 2014 WL 7046611, at *4.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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Case 8:17-cv-01693-RGK-JC Document 146 Filed 08/30/18 Page 6 of 10 Page ID #:2481

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL

Date

Case No.

8:17-cv-01693-RGK-JC

Title

Kinney v. Three Arch Bay Community Services District et al.

August 30, 2018

trial court granted summary judgment to all defendants and disposed of the action. Id. In affirming the

trial court’s holding on appeal, the California Court of Appeal noted in frustration that “[tjhese are the

seventh and eighth appeals arising out of the knock-down drag-out saga engulfing what must surely be a

residential area bereft of neighborly pleasantries.” Id. Kinney then tried to appeal the matter to the

United States Supreme Court, but it declined to grant certiorari. Kinney v. Three Arch Bay Cmty. Servs.

Dist., 136 S. Ct. 1181 (2016). Predictably, Kinney then appealed the trial court’s award of costs to

defendants. Keegan v. Viviani, No. G050032, 2015 WL 4576384, at *4 (Cal. Ct. App. June 11, 2015).

The Court of Appeal affirmed the trial court’s award, and this time sanctioned Kinney for his appeal. Id.

The court noted that the primary arguments in the lawsuit were “utterly absurd” and that the “need to

discourage the conduct of Attorney Kinney, whose bad tactics are well known, [was] great.” Id. In

response, Kinney then filed a motion to strike or tax costs. Exasperated, the California Court of Appeal

denied Kinney’s appeal yet again, opining that the appeal had an “utter lack of merit,” that Kinney

exhibited “continuing shamelessness in the face of irrefutable facts,” and that his lawsuits had, at that

point, “degenerated into what can reasonably be characterized as an attempt by plaintiff Charles Kinney

... to inflict as much pain and expense on his neighbors as he possibly can.” Kinney v. Three Arch Bay

Cmty. Servs. Dist., No. G053727, 2017 WL 6276437, at *1, *3 (Cal. Ct. App. Dec. 11, 2017), reh’g

denied (Jan. 4, 2018), review denied (Feb. 21,2018).

Finding no recourse in state court, Kinney turned to federal court. Instead of alleging claims of

nuisance and trespass, he came up with a new theory: the Clean Water Act. In July 2016, Kinney filed

his first lawsuit in this Court, alleging that TAB, Viviani and the Chaldus violated the Clean Water Act

by discharging pollutants into the Pacific Ocean, again near Kinney’s Virginia Way property. See First

Am. Compl., Kinney v. Three Arch Bay Cmty. Servs. Dist., 8:16-cv-00796-RGK-JC, ECF No. 14. On

June 15, 2017, this Court dismissed the case due to Kinney’s failure to satisfy the notice requirement of

the Clean Water Act. Kinney v. Three Arch Bay Cmty. Servs. Dist., 2017 WL 2999684, at *3 (C.D. Cal.

Jun. 15, 2017). Kinney had argued that his 2011 state court complaint was sufficient to satisfy the notice

requirement, but the Court explained why it was not. See id. at *2-3. Kinney then appealed the Court’s

decision, but the Ninth Circuit affirmed the Court’s ruling, explaining that the Court “properly

determined” that Kinney’s CWA notice was inadequate. Kinney v. Three Arch Bay Cmty. Servs. Dist.,

723 Fed. Appx. 553 (9th Cir. 2018).

After all this, however, Kinney again filed the present action in this Court, this time after sending

a CWA notice to the defendants. Despite knowing at this point who all defendants should have been in

the action, he again failed to include all defendants in his initial complaint. Instead, he opted to add new

defendants piecemeal as the litigation progressed. (See ECF Nos. 32, 87, 88.) But the Court has now

ruled that, yet again, Kinney’s suit against all defendants must be dismissed because his CWA notice

continues to be inadequate.

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3.

August 30, 2018

Substantive Findings ofFrivolousness or Harassment

The third requirement to impose a pre-filing order focuses on the substance of the party’s

litigation history to determine whether the party has engaged in a pattern of frivolous or abusive

lawsuits. Under Local Rule 83-8.4, the Court may, at its discretion, rely on California law to determine

whether a party has engaged in a pattern of activity sufficient to render him a vexatious litigant. See

C.D. Cal. L.R. 83-8.4; Ringgold-Lockhart, 761 F.3d at 1061 n.l; Huggins v. Hynes, 117 Fed. Appx. 517

(9th Cir. 2004). Under California Code of Civil Procedure section 391(b), a party is a “vexatious

litigant” if he does any of the following:

(1) In the immediately preceding seven-year period has commenced,

prosecuted, or maintained in propria persona at least five litigations other

than in a small claims court that have been (i) finally determined adversely

to the person or (ii) unjustifiably permitted to remain pending at least two

years without having been brought to trial or hearing.. ..

(3) In any litigation while acting in propria persona, repeatedly files

unmeritorious motions, pleadings, or other papers, conducts unnecessary

discovery, or engages in other tactics that are frivolous or solely intended

to cause unnecessary delay.

Cal. Code Civ. Proc. § 391(b)(1), (3).

Kinney satisfies the criteria of section (b)(1) of the vexatious litigant statute. A “litigation” under

section (b)(1) includes proceedings in both trial and appellate courts. McComb v. Westwood Park Ass’n,

62 Cal. App 4th 1211, 1216 (Ct. App. 1998). Kinney has “commenced, prosecuted, or maintained” at

least five litigations in the seven year period preceding the filing of this lawsuit that have been finally

determined adversely to him.4 See Cal. Code Civ. Proc. § 391(b)(1). Indeed, the California Court of

Appeal noted in a recent opinion that it was “either the ninth or tenth appeal (we have long lost count).”

4 Those litigations are:

1. Kinney v. Three Arch Bay Cmty. Servs. Dist.—8:16-cv-00796-RGK-JC

2. Kinneyv. Three Arch Bay Cmty. Servs. Dist.—8:17-cv-Ol 693-RGK-JC

3. Kinneyv. Cooper—2:15-cv-08910-PSG-JC

4. Kinneyv. Chomsky—2:14-cv-05895-PSG-MRW

5. Keegan v. Viviani—Court of Appeal No. G048609

6. Keegan v. Viviani—Court of Appeal No. G050032

7. Kinney v. Three Arch Bay Cmty. Servs. Dist.—Court of Appeal No. G053727

8. Kinneyv. Three Arch Bay Cmty. Servs. Dist.—Ninth Cir. No. 17-55899

9. Kinney v. Three Arch Bay Cmty. Servs. Dist.—U.S. Supreme Court No. 15-7297

10. Kinney v. Three Arch Bay Cmty. Servs. Dist.—Orange Cty. Super Ct. Nos. 30-2010-00409507, 30-2011-00529377,

30-2011-00529382

This is only a sampling of Kinney’s vexatious activity; it is not intended to be comprehensive.

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August 30, 2018

Kinney, 2017 WL 6276437, at *1. Because Kinney has “commenced, prosecuted, or maintained” so

many litigations in the last five years, Kinney is a vexatious litigant under section (b)(1).

Kinney also satisfies the criteria of section (b)(3) of the statute. He repeatedly files

“unmeritorious motions, pleadings, or other papers,” and regularly engages in tactics that are “frivolous

or solely intended to cause unnecessary delay.” Cal. Code Civ. Proc. § 391(b)(3). For example, in this

case alone, Kinney filed a frivolous motion to transfer the case to the Southern Division {See ECF No.

48.), even though the Court already explained in Kinney’s last case that the matter was properly before

this Court. {See Case No. 8:16-cv-00796-RGK-JC, ECF No. 12.) Kinney also filed baseless motions for

reconsideration of the Court’s orders, ignoring the stringent criteria of Local Rule 7-18. (ECF Nos. 52,

74.) And in the prior lawsuit before this Court, Kinney filed a frivolous appeal to the Ninth Circuit; the

Ninth Circuit summarily dismissed the appeal. Kinney, 723 Fed. Appx. 553 (9th Cir. 2018). More

generally, the Court has already described Kinney’s pattern of excessive frivolous lawsuits before other

state and federal courts, sometimes pertaining to the Virginia Way property, and other times pertaining

to other matters. Despite repeatedly failing to prevail in these lawsuits, Kinney persists in filing new

actions and appeals. Kinney engages in other dilatory tactics as well. In his original litigation, for

example, the California Court of Appeal expressed its frustration at Kinney’s repeated failure to include

defendants and allege causes of action. City ofLaguna Beach, 2009 WL 4693266, at * 11. He continues

to engage in the same conduct here, failing to include defendants in his initial pleadings, and failing to

provide adequate notice under the CWA not once, but twice. Kinney is aware of the CWA’s notice

requirement, yet has twice now failed to comply with its demands. The Court therefore finds, as the

California Court of Appeal found, that Kinney’s tactics are purposely and solely intended “to cause

unnecessary delay” and “to inflict as much pain and expense on his neighbors as he possibly can.”

Kinney, 2017 WL 6276437, at *1.

Accordingly, based on Kinney’s satisfaction of the criteria set forth in the California Vexatious

Litigant Statute, the Court concludes that Kinney has engaged in a pattern of frivolous and abusive

actions that satisfies the third DeLong factor.

4.

Breadth of the Order

Lastly, the Court may impose a pre-filing order only if it narrowly tailors the order to the specific

harassing conduct at issue. De Long, 912 F.2d at 1147.

A pre-filing order must be narrowly tailored to the specific abusive practice at issue “to prevent

infringement on the litigator’s right of access to the courts.” De Long, 912 F.2d at 1148 (internal

quotation marks omitted). The Court does not take lightly its inherent power to issue a pre-filing order.

Ringgold-Lockhart, 761 F.3d at 1062 (“In light of the seriousness of restricting litigants’ access to the

courts, pre-filing orders should be a remedy of last resort.”). Kinney is already prohibited from filing in

the Central District any new lawsuits related to the Fernwood Matter without the express written

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August 30, 2018

authorization of a judge of this Court. See Order Granting Motion to Declare Charles Kinney a

Vexatious Litigant, Kinney v. Cooper, No. 2:15-cv-08910-PSG-JC (C.D. Cal. May 13, 2016), ECF No.

70. Viviani now asks that Kinney be prohibited from filing suits related to any matter in the Central

District without preapproval, and that the Court enter an order requiring Kinney to post security in the

amount of $5,000.

The Court modifies this request in two ways. First, to comply with the narrow tailoring

requirement, the Court will apply the pre-filing order only to lawsuits against Viviani, the Chaldus,

TAB, TABA, the City of Laguna Beach, and/or the California Department of Transportation relating to

Kinney’s property on Virginia Way. The vexatious activity discussed herein pertains to flooding,

drainage, and pollution near that property, so it is appropriate to tailor the pre-filing order in this manner.

Second, the Court declines to impose a security requirement at this time. The present case has been

dismissed, and the pre-filing order will apply to any future lawsuits. If this or another court within this

district determines that that future complaint is not duplicative, frivolous, or harassing, then Kinney

should be able to proceed with his case.

V.

CONCLUSION

The Court concludes that it has no subject matter jurisdiction over TAB or TABA because

Kinney’s CWA notice is inadequate. Because all of the defendants are now dismissed from this case, the

Court DISMISSES the case for lack of subject matter jurisdiction, and DENIES AS MOOT TAB’s

Motion for Summary Judgment (DE 128). In addition, the Court finds that Kinney is a vexatious litigant

because he has been filing frivolous and harassing litigation against the defendants for many years. See

Cal. Code Civ. Proc. § 391. The Court accordingly GRANTS Viviani’s Motion for Security and Control

(DE 15). The Court imposes the following pre-filing restrictions on Kinney:

•

Charles Kinney and any person acting on his behalf must obtain written authorization

from a Judge of this Court before initiating a new action related to his Virginia Way

property, where the pleading asserts claims against Charles Viviani, John and Lynn

Chaldu, the City of Laguna Beach, the Three Arch Bay Association, the Three Arch Bay

Community Services District, and/or the California Department of Transportation.

•

Asa condition of being allowed to file any such action, Charles Kinney or anyone acting

on his behalf must persuade the Court that the lawsuit is neither frivolous, duplicative,

nor harassing.

IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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i Date

Case No.

8:17-cv-01693-RGK-JC

! Title

Kinney v. Three Arch Bay Community Services District et al.

Initials of Preparer

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VRV

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