Opinion
NO. CV 17-250-JLS(E)
05-10-2019
WAYNE SPINDLER, Plaintiff, v. CITY OF LOS ANGELES, et al., Defendant.
ORDER OF DISMISSAL
PROCEEDINGS
Plaintiff, a practicing attorney proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. section 1983 on January 11, 2017. The original Complaint named as Defendants: (1) the City of Los Angeles ("City"); (2) City Councilman and City Council President Herman S. Wesson, Jr., sued in his individual and official capacities; (3) Hugo S. Rossitter, an employee of the Los Angeles City Attorney's Office, sued in his individual and official capacities; and (4) Los Angeles Police Department detectives Eric Reade and Nelly Nava-Mercado.
On June 22, 2017, Defendants filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as a motion to strike. Plaintiff filed an opposition on July 21, 2017. The opposition contained allegations more appropriately made in a pleading than in an opposition brief. On November 20, 2017, the Court issued a "Memorandum and Order" granting the motion to dismiss in part with leave to amend, denying the motion to dismiss in part, and denying the motion to strike as moot. On December 12, 2017, Plaintiff filed a First Amended Complaint.
The First Amended Complaint repeated verbatim many of the defective allegations in the original Complaint. On January 16, 2018, Defendants filed a motion to dismiss the First Amended Complaint. On February 16, 2018, Plaintiff filed an opposition to the motion to dismiss, which again contained pleading-type allegations. On April 17, 2018, the Court issued a "Memorandum and Order Dismissing First Amended Complaint With Leave to Amend." On May 11, 2018, Plaintiff filed a Second Amended Complaint.
On May 24, 2018, Defendants filed a motion to dismiss the Second Amended Complaint. On June 22, 2018, Plaintiff filed an opposition to the motion to dismiss, which again contained pleading-like allegations and also contained allegations taken verbatim from Plaintiff's opposition to the motion to dismiss the First Amended Complaint. On October 10, 2018, the Court issued a "Memorandum and Order re Second Amended Complaint." As described in more detail below, the Court dismissed some of Plaintiff's claims and allegations without leave to amend. On November 1, 2018, Plaintiff filed a Third Amended Complaint, the operative pleading.
On December 4, 2018, Defendants filed "Defendants' Motion to Dismiss the Third Amended Complaint, etc." ("Motion to Dismiss"), accompanied by a Request for Judicial Notice. On January 4, 2019, Plaintiff filed an "Opposition to Defendants' Motion to Dismiss Third Amended Complaint, etc.," accompanied by a Request for Judicial Notice.
On February 13, 2019, the Magistrate Judge issued a Minute Order requiring Plaintiff to show cause in writing, if there be any, why the action should not be dismissed without prejudice as against the purported fictitious "Doe" Defendants for failure to effect timely service of process and/or for want of prosecution. Plaintiff filed a response to this Minute Order on February 27, 2019.
BACKGROUND
I. Overview
Much of the Third Amended Complaint appears to be a verbatim copy of the Second Amended Complaint. Because the Court dismissed portions of the Second Amended Complaint without leave to amend, it is appropriate to begin with a summary of the allegations of Plaintiff's Second Amended Complaint and a brief description of the Court's "Memorandum and Order re Second Amended Complaint." /// ///
II. The Second Amended Complaint
The Second Amended Complaint concerned events beginning with a May 11, 2016 City Council meeting allegedly chaired by Defendant Wesson. At this meeting, Plaintiff assertedly submitted a "speaker card" from "Wayne from Encino" (see Second Amended Complaint, Ex. 1). This card bore drawings of a burning cross, a person hanging from a tree, and a cartoon figure with a sign stating "Herb = Nigger" (id.). The back of the speaker card bore the handwritten statement "FUCK-U HERB" (id.). Plaintiff assertedly was ejected from the meeting, and two days later, was arrested and detained for allegedly having made a criminal threat in violation of California Penal Code section 422.
The City Attorney's Office allegedly sought and obtained a temporary restraining order and a three-year injunction against Plaintiff pursuant to California's Workplace Violence Safety Act, California Civil Procedure Code section 527.8. The California Court of Appeal affirmed the order granting the injunction (see Office of the City Attorney v. Spindler, 2018 WL 1180277 (Cal. App. Mar. 7, 2018, as modified March 13, 2018) (directing the trial court to modify the injunction to identify the City of Los Angeles as the petitioner but otherwise affirming)). /// ///
The Court of Appeal modified its original opinion in ways immaterial to the issues presented here (see Office of the City Attorney v. Spindler, 2018 Cal. App. Unpub. LEXIS 1704 (Mar. 13, 2018)).
In the Second Amended Complaint, Plaintiff alleged:
Plaintiff is a "private non-public person" who speaks at and participates in meetings of various municipal bodies including the Los Angeles City Council, the Los Angeles Police Commission and various committees. Plaintiff has attended over 100 meetings and is considered a "gadfly" (Second Amended Complaint, ¶ 11). Plaintiff opposed "Measure RRR," a proposal concerning the governance of the Los Angeles Department of Water and Power ["DWP"] (id., ¶ 16).
Plaintiff attended a City Council meeting on May 11, 2016, which Defendant Wesson chaired and at which Measure RRR was to be discussed (id., ¶¶ 12, 16). Plaintiff submitted two "speaker cards" and spoke twice (id.). After Plaintiff spoke the second time, Defendant Wesson announced Plaintiff's "true identity" (rather than his "anonymous identifier" on the speaker cards) (id.). Wesson described statements and drawings on one of the speaker cards (id.). Defendant Wesson accused Plaintiff of being a coward and "not 'saying' 'it' to [Wesson's] face" (id.). Plaintiff tried to respond, but Wesson deemed Plaintiff's response a "disruption" and "threw out Plaintiff from the meeting" (id.). Plaintiff left without further incident (id.).
Thereafter, Defendant Wesson falsely stated that Plaintiff had made a criminal threat against Wesson (id., ¶ 38). Wesson lied on police reports used to effect the false arrest of Plaintiff (id., ¶30).
On May 13, 2016, Plaintiff was walking to a City Council meeting when he saw Defendant John Doe 1 using a cell phone and heard Doe saying, "he's coming" (id., ¶ 13). When Plaintiff reached the steps of the City Hall building, Plaintiff was surrounded by ten LAPD officers and handcuffed (id.). Plaintiff was shown a folder with Plaintiff's photograph on it and "a purported arrest warrant on a felony complaint" (id.).
Plaintiff was put into a police car, driven to the police station and booked on a charge of making a criminal threat, with a "hate crime" enhancement (id., ¶ 14). Plaintiff's bond was set at $75,000 (id.).
At the police station, Defendant Reade said he did not want to hear anything about Plaintiff's "rights" (id., ¶ 15). Plaintiff was not read his rights "correctly," was not permitted three phone calls, and was not allowed to review his bond amount (id.). Instead, Defendants Reade and Nava-Mercado took Plaintiff into a closed room, where they handcuffed Plaintiff to a chair and gave Plaintiff a pad and a pen to "sign a statement" to "confess" to what Plaintiff "did" (id.). Reade and Nava-Mercado told Plaintiff the speaker card was a criminal threat, and said that the best thing Plaintiff could do was write a statement admitting "it" (id.). Reade and Nava-Mercado also told Plaintiff that they could reduce the bond to at least $50,000, if Plaintiff would speak to them without an attorney (id.).
Plaintiff did not sign a confession or any other statement (id., ¶ 16). Plaintiff explained to the officers that the speaker card was a "parody of the Council being like the KKK . . . [which] was lynching taxpayers" and attempting to "trick" voters to approve Measure RRR (id.). Plaintiff said that the City had "made a KKK like blue hooded figure for the DWP's conservation warnings," and that Plaintiff used the "blue City [H]all figure" on his speaker card (id.)[] Plaintiff said he "saw Wesson as trying along with City Hall to be lynching the voters and acting like a 'nigger' or 'sellout'" (id.).
Defendants Reade and Nava-Mercado did not lower Plaintiff's bond (id., ¶ 17). After eight and a half hours in detention, Plaintiff posted bond and was released on $75,000 bail (id., ¶¶ 17, 20). The arrest prevented Plaintiff from attending public meetings on May 13, 2016 (id., ¶ 51). Defendants Reade and Nava-Mercado had no evidence that Plaintiff had threatened a crime against anyone (id., ¶ 49).
On May 13, 2016, John Doe 2 made a "false and misleading" news report in front of City Hall, falsely stating that, at the May 11, 2016 meeting, Plaintiff had worn a white hood and had handed Defendant Wesson the
speaker card "as a threat" (id., ¶¶ 18, 34). Defendant John Doe 2, a long time friend and employee of Defendant Rossitter, reported that Plaintiff's law license was going to be revoked (id., ¶ 34). As a result of the false and misleading news reports, Plaintiff has suffered "incalculable" damage to his business, including harm because a "score" of clients fired or refused to hire Plaintiff (id., ¶ 18).
In the days following the May 11, 2016 incident, Defendant Wesson furthered his "campaign" against Plaintiff, including speaking at a "huge gathering" of people at the L.A. Sentinel headquarters (id., ¶ 25). There, Wesson said how "unbelievably angry" he was at Plaintiff, but Wesson did not then say he was afraid of Plaintiff (id., ¶ 25). Wesson disclosed Plaintiff's name, profession and home address while stating falsely that Plaintiff was engaging in terrorist threats against African-Americans (id., ¶ 35). Publisher Danny Bakewell, Sr., called for Plaintiff to be "jailed, disbarred, and run out of town" (id., ¶ 25). Thereafter, Plaintiff received death threats and was put in fear for his life (id.). Plaintiff's clients fired him (id.). Court appearances were impossible, and Plaintiff argued with other lawyers who accused Plaintiff of being a racist and a terrorist (id.). Plaintiff was "ill, weakened, and destroyed" (id.).
On May 16, 2016, Defendant Wesson lied to Defendant
Rossitter about being in fear of Plaintiff (id., ¶ 21). Defendant Rossitter advised Wesson that, if Wesson said he was in fear, Rossitter could obtain a "workplace violence order" that would "kick out [Plaintiff] from City Hall," "further destroy" Plaintiff's reputation, and require Plaintiff to turn in Plaintiff's guns and ammunition (id.).
On May 19, 2016, Defendant Rossitter, representing the Office of the City Attorney, filed a petition for a temporary restraining order ("TRO")[] and for a workplace violence injunction pursuant to California Code of Civil Procedure section 527.8, based on perjured documents (id.; Ex. 3, pp. 38-48). Rossitter "coached" Wesson to make false statements to obtain the TRO (id., ¶ 39). Wesson falsely stated in "court documents" that Plaintiff had put Wesson in fear of Wesson's life and safety (id., second ¶ 33).[] Defendant Rossitter filed a false affidavit in support of the petition, backdated to April 2016, stating that Plaintiff was so dangerous that special LAPD officers would have to serve the TRO (id., ¶ 39).
The Superior Court granted the TRO that afternoon and
set a June 10, 2016 hearing on the petition for a workplace violence injunction (id.; Ex. 3, pp. 32-37).[] On May 19, 2016, Defendant Reade personally served the TRO on Plaintiff (id.).
On June 10, 2016, the District Attorney's Office refused to file the criminal threats charge (id., ¶ 23). In December of 2016, the District Attorney again refused to file any criminal charges, expressing doubt that the known evidence was sufficient to prove beyond a reasonable doubt "that Spindler crossed the sometimes nebulous line between constitutionally protected speech and punishable 'true threat'" (id., Ex. 4).
Meanwhile, on June 10, 2016, the Superior Court issued a three-year injunction "restraining Plaintiff from City Hall whenever Wesson is present a certain distance" (id., ¶ 22). As a result of the injunction, Plaintiff was compelled to surrender his guns, including a "grandfathered AK-47" (id., ¶ 22, 52). The injunction also limited Plaintiff's ability to engage in public activities at City Hall and caused Plaintiff to be harassed and monitored when he enters federal buildings (id., ¶¶ 41, 53). Plaintiff has been put
on the "no-fly" list (id.).
In April of 2017, City Attorney Mike Feuer falsely prosecuted Plaintiff for misdemeanor possession of the gun, although Plaintiff had "paperwork going back to 1989" (id., ¶ 22). In July of 2017, the City forced Plaintiff to plead guilty to a charge of disturbing the peace and obtained an agreement allowing the City to destroy Plaintiff's AK-47 and remaining ammunition and clips (id., ¶ 54).
Plaintiff filed an appeal from the June 10, 2016 injunction (id., ¶ 24). In March of 2018, the California Court of Appeal affirmed the injunction "without regard to U.S. Supreme Court precedents to the contrary" (id., ¶ 24). The Court of Appeal's ruling was "in clear violation of First Amendment precedent in the 9th Circuit and Supreme Court," "disregard[ed] First Amendment protections under Federal Law and the Brown Act" and was "Unconstitutional as applied" (id., ¶¶ 17, 44). The Court of Appeal's application of California Code of Civil Procedure section 527.8 was "ultra vires [sic] the First Amendment" (id., ¶ 47). The Court of Appeal's award of costs to the City imposed a retaliatory monetary fine on Plaintiff (id., ¶ 45). If the Court of Appeal's decision stands, it will have a chilling effect on free speech in the City of Los Angeles (id., ¶ 46).
In 2017, the City Attorney's Office published a
statement falsely contending that Plaintiff had been convicted of a misdemeanor (id., ¶55.1). In August of 2017, the State Bar filed two false disbarment charges against Plaintiff (id.). The State Bar Court dismissed these charges in September of 2017 (id.).
Plaintiff attached to the Second Amended Complaint an alleged DWP flyer purporting to encourage conservation and featuring a cartoon figure resembling a blue drop of water (Second Amended Complaint, Ex. 2).
The Second Amended Complaint appeared to use the term "TRO" varyingly to mean the TRO application, the TRO itself and the three-year injunction. This regrettable lack of precision caused some confusion and ambiguity. The Court has attempted to discern from the context which meaning Plaintiff ascribed to which use of the term "TRO."
The Second Amended Complaint contained two paragraphs numbered 33.
The TRO prohibited Plaintiff from coming within 100 yards of Wesson's home, within 10 yards of Wesson's district office, within two yards of Wesson's council office, and within 10 yards of Wesson himself (Second Amended Complaint, Ex. 3, pp. 32-37). However, the TRO also provided that nothing in the TRO "shall be construed as prohibiting [Plaintiff] from peacefully and in an orderly manner presenting grievances or comments to the City Council or any City agencies" (id.).
The Second Amended Complaint for the first time contained charging allegations against two Doe Defendants (although Plaintiff had not sought leave of court to add claims against any new Defendants). Plaintiff alleged that Defendant John Doe 1 was employed by the City of Los Angeles as deputy City clerk assigned to the City Council (Second Amended Complaint, ¶ 9). Defendant John Doe 2 allegedly had an FCC license and was employed previously by Defendant Rossitter (id., ¶ 10). Plaintiff alleged that he purportedly saw John Doe 1 on his cellphone before Plaintiff's alleged arrest and assertedly heard John Doe 1 say "he's coming" (id., ¶ 13). Plaintiff alleged that John Doe 2 falsely reported that Plaintiff had handed a "threat" to Defendant Wesson while wearing a white hood, assertedly on an incorrect date (id., ¶ 18).
The Second Amended Complaint contained the following claims for relief: ///
(a) False arrest in violation of the Fourth Amendment, Article I, Section 13 of the California Constitution and state law against Defendants Reade, Nava-Mercado, Wesson, John Doe 1 and the City (First and Sixth Claims for Relief);
(b) Defamation, invasion of privacy and false light against Defendants Wesson, Rossitter and John Doe 2 (Second Claim for Relief);
(c) Violation of the right to assemble and to speak at public meetings under the First, Fourth, and Fourteenth Amendments, Article I, Section 2 of the California Constitution, and the Ralph M. Brown Act, against Defendants Wesson, Reade, Nava-Mercado, and the City, based on allegations that Defendant Wesson allegedly expelled Plaintiff from a meeting on May 11, 2016 "for an illicit reason" and allegedly filed false statements against Plaintiff to engineer Plaintiff's arrest (Third Claim for Relief);
The Ralph M. Brown Act, codified at California Government Code section 54950 et seq., regulates open meetings of California public bodies.
(d) A claim that the TRO and the injunction violated Plaintiff's First Amendment rights to remain free of restraint, to speak and to assemble, against Defendants Wesson, Rossitter and the City (Fourth Claim for Relief);
(e) A claim that the California Court of Appeal's application of California Code of Civil Procedure section 527.8 to Plaintiff violated the First Amendment (Fifth Claim for Relief);
(f) Violation of the Bane Act, California Civil Code section 52.1, against Defendants Wesson, Rossitter, Reade and Nava-Mercado (Seventh Claim for Relief); and
(g) False imprisonment against Defendants Reade and Nava-Mercado (Eighth Claim for Relief).
The Second Amended Complaint sought to enjoin Defendants from: (1) "enforcing the Law, including "the Rules" and Penal Code to deny the right to assemble and speak" at meetings; and (2) enforcing the "TRO issued on June 10, 2016" (Second Amended Complaint, ¶ 57). Plaintiff further sought an order expunging the May 13, 2016 criminal threats citation, and a declaratory judgment that the City's unspecified "rules," as interpreted and applied in his case, violate the First, Fourth and Fourteenth Amendments, the California Constitution and the Brown Act. Plaintiff also sought compensatory and punitive damages (id.).
III. The Memorandum and Order re Second Amended Complaint
In the October 2, 2018 "Memorandum and Order re Second Amended Complaint," the Court made the following rulings:
1. The Rooker-Feldman doctrine deprived the Court of subject matter jurisdiction to adjudicate the Fourth and Fifth Claims for Relief. The Rooker-Feldman doctrine also deprived the Court of subject matter jurisdiction over: (1) the portion of the Second Claim for Relief alleging that Defendant Rossitter and Wesson purportedly presented false testimony to the state courts; and (2) the portion of the Seventh Claim for Relief alleging that Defendants' assertedly false statements led to the issuance of the TRO. The Court dismissed the Fourth and Fifth Claims for Relief and the above-described portions of the Second and Seventh Claims for Relief without prejudice but without leave to amend.
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
2. The Court dismissed without leave to amend and with prejudice the portion of the Seventh Claim for Relief alleging that Defendants reported Plaintiff to the State Bar and/or initiated or participated in State Bar proceedings against Plaintiff.
3. Plaintiff failed to comply with the claims presentation requirements of the California Government Claims Act with respect to his state law claims arising out of actions or omissions occurring after May 13, 2016. The Court dismissed those state law claims without prejudice but without leave to amend.
Plaintiff attaches to his Opposition to the present Motion to Dismiss a purported tort claim concerning an alleged incident on December 2, 2016 during which Defendant Wesson assertedly blocked Plaintiff from exiting a meeting. This purported tort claim is irrelevant to the issues here. The Third Amended Complaint contains no claim concerning any such alleged December 2, 2016 incident.
4. Plaintiff again had failed to state a cognizable municipal liability ("Monell") claim against the City. The Court dismissed the federal law claims against the City without leave to amend and with prejudice.
5. Because Plaintiff did not seek leave of court to add purported fictitious "Doe" Defendants, the claims against John Doe 1 and John Doe 2 were dismissed without prejudice.
6. The Court otherwise dismissed the Second Amended Complaint with leave to amend, but expressly ordered Plaintiff not to "reallege claims dismissed without leave to amend."
IV. The Third Amended Complaint
Notwithstanding the Court's "Memorandum and Order re Second Amended Complaint," much of the Third Amended Complaint appears to be a verbatim copy of the Second Amended Complaint. The following allegations contained in the Third Amended Complaint appear identical or virtually identical to those contained in the Second Amended Complaint: (1) the first eleven pages of introductory and factual allegations; (2) the First Claim for Relief; (3) the Second Claim for Relief, except for the substitution of the word "case" for "TRO" and the addition of the phrase "having practiced for 23 years" in paragraph 36; (4) the Third Claim for Relief; (5) the Fourth Claim for Relief (originally the Sixth Claim for Relief in the Second Amended Complaint); (6) all but three sentences of the Fifth Claim for Relief (originally the Seventh Claim for Relief in the Second Amended Complaint); and (7) the Sixth Claim for Relief (originally the Eighth Claim for Relief in the Second Amended Complaint). The Third Amended Complaint contains the same allegations against the purported Doe Defendants contained in the Second Amended Complaint.
The Third Amended Complaint contains the following claims for Relief:
1. False arrest in violation of the Fourth Amendment, Article I, Section 13 of the California Constitution and state law against Defendants Reade, Nava-Mercado, Wesson, John Doe 1 and the City (First and Fourth Claims for Relief);
2. Defamation, invasion of privacy and false light against Defendants Wesson, Rossitter and John Doe 2 (Second Claim for Relief);
3. Violation of the right to assemble and to speak at public meetings under the First, Fourth, and Fourteenth Amendments, Article, Section 2 of the California Constitution, and the Brown Act, against Defendants Wesson, Reade, Nava-Mercado, and the City (Third Claim for Relief);
4. Violation of the Bane Act, California Civil Code section 52.1, against Defendants Wesson, Rossitter, Reade and Nava-Mercado (Fifth Claim for Relief); and /// /// /// /// ///
5. False imprisonment against Defendants Reade and Nava-Mercado (Sixth Claim for Relief).
Thus, Plaintiff reasserted his false imprisonment claim despite the Court's previous ruling, in the October 2, 2018 "Memorandum and Order re Second Amended Complaint" at p. 27 n.23, that, in California, false arrest and false imprisonment are not separate torts. Levin v. United Airlines, 158 Cal. App. 4th 1002, 1016 n.16, 70 Cal. Rptr. 3d 535 (2008) (citations omitted). False arrest is simply one way of committing a false imprisonment. Id.
In the prayer for relief, Plaintiff again seeks to enjoin Defendants from "enforcing the Law, including the Rules and Penal Code to deny the right to assemble and speak" at meetings. Again, Plaintiff does not identify the "Rules" or the Penal Code section(s) to which he refers. Plaintiff also seeks a declaration "that the City's Rules, as interpreted and applied in the case of violating [sic] the First, Fourth, and Fourteenth Amendments to the U.S. Constitution and Article I, Section 2 of the California Constitution and the Brown Act." Plaintiff again seeks an order expunging the May 13, 2016 citation. Plaintiff also seeks compensatory and punitive damages.
DISMISSAL OF PURPORTED "DOE" DEFENDANTS
In Plaintiff's Opposition to the motion to dismiss the Second Amended Complaint, Plaintiff identified the two purported "Doe" Defendants as Deputy City Attorney Alietto (not a City clerk) and "KCAL/KCBS" (Opposition to Motion to Dismiss Second Amended Complaint, ¶ 55). In that document Plaintiff stated that the "Doe Defendants were offered for clarity [sic]," and that Plaintiff supposedly did not name the purported "Doe" Defendants in the pleading "because the Court will not permit any Defendant to be added without permission as per the Court's prior orders" (id.). Plaintiff repeated these allegations in the Opposition to the present Motion to Dismiss (Opposition, ¶ 57). Plaintiff never filed any motion for leave to add or substitute Alietto and KCAL/KCBS as Defendants. Plaintiff also has not filed any proofs of service showing service of the Summons and the Second Amended Complaint, or the Third Amended Complaint, on the purported "Doe" Defendants. The purported Doe Defendants have not appeared in the action.
Under Rule 4(m) of the Federal Rules of Civil Procedure, a court may dismiss the action without prejudice as against any defendant as to whom proper service of process has not been effected within ninety (90) days after the filing of the complaint, unless the plaintiff shows good cause for the failure to effect service. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (applying prior version of Rule 4(m)). "At a minimum, 'good cause' means excusable neglect." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). Inadvertance or mistake of counsel is insufficient. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). Good cause may exist where service was attempted but not completed, the plaintiff was confused about the requirements of service, or the plaintiff was prevented from effecting service by circumstances beyond the plaintiff's control. Chemehuevi Indian Tribe v. Wilson, 181 F.R.D. 438, 440 (N.D. Cal. 1998). /// ///
In response to the Court's February 13, 2019 Order to Show Cause, Plaintiff offers a number of transparently invalid excuses for his failure to effect timely service of process on the purported Doe Defendants. Plaintiff states that the Court's prior orders stating that Plaintiff should not add Defendants without leave of court supposedly led Plaintiff to believe that he had no "unilateral right to Move for leave to amend to add parties UNLESS the Court ruled that The complaint FIRST stated a cause of action, and what causes of Action would be ruled to move forward" (Opposition, p. 1) (original capitalization and emphasis). The Court's prior orders did not place any such limitation on Plaintiff's ability to seek leave to add defendants, however. Any reasonable plaintiff (much less any reasonable attorney) would have known of Plaintiff's right to move for leave to amend to add Defendants.
Plaintiff also contends that he has been suffering from an illness which Plaintiff purportedly believes may be typhus contracted from the environment of the Los Angeles City Hall buildings. Plaintiff further contends he suffered a "severe shock" from watching videos of one of Plaintiff's arrests, that he allegedly suffered emotionally from having his deposition taken, and that his computer supposedly crashed at some point. Plaintiff further alleges that the press of business from his immigration case workload and from the work associated with pursuing his four pro se cases in this Court purportedly have caused Plaintiff to suffer severe stress and have put him "through hell." /// ///
Plaintiff is a licensed attorney who has chosen to pursue four cases pro se in this Court between 2016 and the present. Plaintiff is aware of, and is charged with knowledge of, the Federal Rules of Civil Procedure, and in particular the provisions of Rule 4. Plaintiff purported to sue fictitious Defendants in his Second Amended Complaint and Third Amended Complaint in this case. As Plaintiff knew or reasonably should have known, a plaintiff may sue a fictitious defendant only where the plaintiff actually lacks knowledge of the true name of the defendant. See Dover v. Sadowinski, 147 Cal. App. 3d 113, 116, 194 Cal. Rptr. 866 (1983) (citation and internal quotations omitted); see also Estate of Nunez by and through Nunez v. County of San Diego, 2018 WL 5817091, at *18 (S.D. Cal. Nov. 5, 2018). Here, Plaintiff's suit against the fictitious Doe Defendants was improper because Plaintiff admittedly was aware of the identities of the purported "Doe" Defendants at least as of the date Plaintiff filed his Second Amended Complaint. Since the filing of the Second Amended Complaint, Plaintiff has failed to effect timely service of process on these Defendants. Plaintiff's specious argument that he supposedly was waiting for the Court to rule one of his pleadings wholly sufficient before attempting service is unavailing. A plaintiff's concern that amendment of a complaint may be necessary does not constitute good cause for a failure to effect timely service under Rule 4(m). See Wei v. State of Hawaii, 763 F.3d at 372 (plaintiff's desire to amend a complaint is not good cause for failing to effect timely service); see also Television Signal Corp. v. City and County of San Francisco, 193 F.R.D. 645, 657 (N.D. Cal. 2000), clarified, 2000 WL 1022962 (N.D. Cal. July 11, 2000) (rejecting argument that delayed service of process allowed for "efficient administration and judicial conservation" by allowing plaintiff to await the court's rulings on common issues in related cases before amending the complaint; "[t]hat is not good cause"). Plaintiff could have served the Second Amended Complaint on the purported "Doe" Defendants at any time between the filing of that pleading and the filing of the "Memorandum and Order re Second Amended Complaint." Plaintiff also could have served the Third Amended Complaint on the purported "Doe" Defendants at any time after he filed that pleading. Yet, Plaintiff does not allege that he ever made any attempt to effect service of process on the purported "Doe" Defendants (whose identities Plaintiff knew all along).
Plaintiff's other pro se cases are: (1) Spindler v. City of Los Angeles, et al., CV 16-5655-JLS(E); (2) Spindler v. Los Angeles Police Dep't, et al., CV 18-2566-JLS(E); and (3) Spindler v. State Bar of Calif., et al., CV 18-8712-JLS(E). On February 14, 2019, the Court entered judgment in the 2016 case dismissing Plaintiff's federal claims without leave to amend and with prejudice and dismissing Plaintiff's state law claims without leave to amend but without prejudice. The cases filed in 2018 remain pending.
Plaintiff's equally specious argument that he supposedly was too busy to effect timely service of process does not show good cause or excusable neglect. See Azor v. Peake, 2008 WL 5170566, at *1 (N.D. Cal. Dec. 9, 2008) ("Counsel's decision to allocate resources . . . to assign a lower priority to timely service of the instant complaint, does not constitute good cause for a failure to comply with the requirements of Rule 4.") (citation omitted); see also Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) ("Intentional delay of service is more inexcusable than inadvertence."). ///
The Court declines to exercise its discretion to extend the time for service on the purported "Doe" Defendants. See Efaw v. Williams, 473 F.3d at 1040-41. Plaintiff is not an unsophisticated litigant; he is a practicing lawyer. Plaintiff chose not to sue by name two Defendants of whose names and alleged wrongdoing Plaintiff admittedly was aware. Plaintiff effected timely service of process on the named Defendants and litigated three motions to dismiss in this case (and has litigated three other pro se cases filed in this Court). Yet now Plaintiff claims that he supposedly has been too busy, too ill and/or too stressed to effect timely service of process on known purported "Doe" Defendants. The Court takes judicial notice of the fact that, during the relevant time period (from the filing of the Second Amended Complaint to the present), Plaintiff has filed papers in many different cases pending before the Ninth Circuit. See, e.g., Alfaro-Lopez v. Barr, case number 19-70480, petition for review filed Feb. 28, 2019; Quinteros v. Whitaker, case number 18-73614, petition for review filed December 31, 2018; Cruz v. Sessions, case number 18-72929, petition for review filed October 29, 2018; Villasenor v. Sessions, case number 18-72609, petition for review filed September 25, 2018; Reyes-Antonio v. Sessions, case number 18-72112, petition for review filed July 26, 2018; Colorado-Moran v. Sessions, case number 18-72017, petition for review filed July 17, 2018; Raymundo-Lima v. Barr, case number 16-70206, supplemental brief for review filed December 10, 2018; Ghahremani-Nejad v. Whitaker, case number 17-73413, opening brief filed July 6, 2018; see also Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). Especially in light of Plaintiff's demonstrated ability to litigate during the relevant time period, Petitioner's present contentions that he was too ill or too stressed to effect timely service of process on the purported "Doe" Defendants, (or that a computer crash allegedly prevented Petitioner from doing so), are rejected.
For all of the above reasons, the Court will dismiss the action as against Defendants John Doe 1 and John Doe 2 without prejudice.
MOTION TO DISMISS
I. Standards Governing Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
The Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes as true all non-conclusory factual allegations in the complaint and construes the complaint in the light most favorable to the plaintiff). Ordinarily the court must construe a pro se litigant's pleading liberally and hold a pro se plaintiff "to less stringent standards than formal pleadings drafted by lawyers." See Erickson v. Pardus, 551 U.S. at 94 (citation omitted). However, licensed attorneys representing themselves, such as Plaintiff, "are not entitled to the same liberal treatments as pro se litigants. . . ." Osgood v. Main Streat Marketing, LLC, 2017 WL 131829, at *3 (S.D. Cal. Jan. 13, 2017) (citing cases).
"Generally, a court may not consider material beyond the complaint in ruling on a Fed. R. Civ. P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider "only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted). In ruling on the motion, the Court may not consider new factual allegations raised in Plaintiff's Opposition. See Schneider v. Calif. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (new allegations contained in opposition to motion to dismiss "are irrelevant for Rule 12(b)(6) purposes"); BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 780 F. Supp. 2d 1061, 1075 n.10 (D. Haw. 2011) ("[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.") (citation and internal quotations omitted). /// /// /// /// ///
II. Defendants' Contentions
Defendants contend:
1. The Third Amended Complaint violates the Court's "Memorandum and Order re Second Amended Complaint" by reasserting claims and allegations the Court dismissed without leave to amend or deemed insufficient; accordingly, the Court should dismiss the Third Amended Complaint in its entirety without leave to amend.
2. The First Claim for Relief allegedly names impermissible Defendants and assertedly attempts improperly to relitigate the constitutionality of the speaker card;
3. The Second Claim for Relief does not allege any defamatory conduct for which Defendants may be held liable;
4. The Third Claim for Relief: (a) is incoherent and duplicative; (b) impermissibly bundles claims; (c) asserts an as-applied challenge to the City's Rules of Decorum unsupported by any factual allegations; and (d) fails to allege facts showing violations of the First Amendment or the Brown Act;
5. The Fifth Claim for Relief (Bane Act claim): (a) is barred by the Rooker-Feldman doctrine; (b) reasserts allegations the Court previously dismissed without leave to amend or otherwise deemed insufficient; and ///
6. The prayer for relief seeks relief untethered to Plaintiff's charging allegations, and Plaintiff has not alleged any facts supporting an award of punitive damages.
III. Plaintiff's Opposition
Much of Plaintiff's Opposition again resembles a pleading rather than an opposition to a motion to dismiss. Plaintiff's Opposition also imports entire arguments previously made in Plaintiff's opposition to the motion to dismiss the Second Amended Complaint. Unfortunately, such abusive tactics are familiar to the Court, not only in the present case but also in another of Plaintiff's pro se cases. In Spindler v. City of Los Angeles, et al., CV 16-5655-JLS(E), Plaintiff also vexatiously filed oppositions to motions to dismiss which read like pleadings and which imported verbatim arguments made in earlier oppositions to motions to dismiss prior, superseded pleadings.
Equally improperly, the Opposition contains new allegations appearing to have no relationship to the allegations in the Third Amended Complaint, including allegations that:
1. In a "Huizar Probe," the FBI and the IRS purportedly are investigating allegations that the City and Defendant Wesson supposedly engaged in a kickback scheme with developers;
2. Plaintiff allegedly "got in the way of this 'pay to play' scheme";
3. For the past two and a half years, Plaintiff allegedly has been subjected to five false arrests, six false State Bar complaints, State Bar charges, death threats, a cut-off of his utilities, threats "by City Council members, Developers, Non-Profit associates, City Staffers, LAPD cops, Sheriff's deputies (retired, off duty.)," vandalization of Plaintiff's car, burglary of Plaintiff's home and car, sabotage of Plaintiff's water main, sabotage of Plaintiff's business, harassment and fines by the Building Inspector, and thousands of dollars incurred for parking fines and towing;
4. The City supposedly is a "R.I.C.O. operation";
5. The City Attorney allegedly "is engaged in a cover-up of multiple dealings, including how and why Plaintiff's law license was filed against [sic] last year"; and
6. On March 30, 2017 the California Highway Patrol allegedly detained Plaintiff "and were about to do what the City did to [Plaintiff] back on May 13, 2016," but released Plaintiff after "viewing the PACER." (Opposition, ¶¶ 2-4, 14).
Also improperly, the Opposition makes arguments concerning claims which the Court previously dismissed without leave to amend, including the following arguments: /// ///
1. The TRO allegedly was "phony" and allegedly violated the Second Amendment (Opposition, pp. 7-8, 12);
2. Defendants Wesson and Rossitter allegedly made false assertions in support of the TRO application (Opposition, pp. 8, 12-14);
3. The City allegedly is liable for the acts of its employees (Opposition, pp. 9-10);
4. California Civil Code section 527.8 allegedly is unconstitutional (Opposition, pp. 15, 22);
5. Defendants allegedly violated state law by engaging in purported wrongdoing after May 13, 2016 (Opposition, pp. 19-20); and
6. The California Court of Appeal allegedly erred in ruling that the speaker card was not protected speech (Opposition, pp. 21-22).
IV. Discussion
A. In Obvious Violation of the Court's October 2 , 2018 Order, the Third Amended Complaint Asserts Claims Previously Dismissed Without Leave to Amend.
As indicated above, in the Court's October 2, 2018 "Memorandum and Order re Second Amended Complaint," the Court specifically ordered Plaintiff not to include, in any Third Amended Complaint, any claim the Court was dismissing without leave to amend. Nevertheless, Plaintiff violated this order in multiple respects:
In the First and Third Claims for Relief, Plaintiff again pleads federal claims of municipal liability against the City.
Plaintiff again alleges that Defendant Rossitter and Wesson presented false testimony to the state courts and that Defendants' assertedly false statements led to the issuance of the TRO (Third Amended Complaint, ¶ 21, 42). These allegations are contained in the statement of alleged facts which is incorporated into the First, Third and Fourth Claims for Relief and are contained in the Fifth Claim for Relief (Bane Act claim).
Plaintiff again alleges, in his Bane Act claim, that the TRO purportedly violated the Second Amendment and led to Plaintiff's placement in a "central police database" and on the "no-fly list" (Third Amended Complaint, ¶ 42).
Plaintiff again challenges the correctness of the California Court of Appeal's ruling (Third Amended Complaint, ¶ 24, incorporated by reference into the First, Third and Fourth Claims for Relief).
Plaintiff again asserts state law claims based on alleged wrongdoing arising out of actions or omissions
occurring after May 13, 2016 (Third Amended Complaint, ¶¶ 24, 33, 42, 44 & n.1).
Plaintiff again alleges that Defendants Rossitter and Wesson, along with the City Attorney, assertedly attempted to stop Plaintiff from practicing law, and that a City Attorney's Office spokesman allegedly falsely stated that Plaintiff had been convicted of a misdemeanor, resulting in supposedly false State Bar charges (Third Amended Complaint, ¶ 44 n.1).
Plaintiff's repleading of numerous assertions and claims which the Court previously dismissed without leave to amend demonstrates deliberate defiance of court order.
B. Plaintiff Again Fails to State a Cognizable False Arrest Claim.
Plaintiff again alleges that his arrest was made pursuant to a "purported" warrant (see Third Amended Complaint, ¶ 13). As the Court advised Plaintiff in the October 2, 2018 "Memorandum and Order re Second Amended Complaint," if an arrest warrant is facially valid, the arresting officer is not liable unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its [existence] unreasonable. . . ." See Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (citations omitted); see Cal. Civ. Code § 43.55(a) ("There shall be no liability on the part of, and no cause of action shall arise against, any peace officer who makes an arrest pursuant to a warrant of arrest regular upon its face if the peace officer in making the arrest acts without malice and in the reasonable belief that the person arrested is the one referred to in the warrant.").
The Third Amended Complaint, like the Second Amended Complaint, does not contain a description of the alleged warrant. Nor did Plaintiff attach a copy of the alleged warrant to the Third Amended Complaint. Plaintiff again does not allege any facts showing that the warrant was facially invalid. Accordingly, Plaintiff's federal and state law false arrest and false imprisonment claims again are insufficient.
C. The Second Claim for Relief Is Insufficient.
The Second Claim for Relief purports to allege claims for defamation, invasion of privacy and false light against Wesson and Rossitter. These claims are insufficient. /// /// /// ///
The false light claim again is redundant. As the Court previously advised Plaintiff, in California, "when a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action." Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1264, 217 Cal. Rptr. 3d 234 (2017) (citation and internal quotations and brackets omitted). See "Order Dismissing First Amended Complaint With Leave to Amend," p. 34.
Plaintiff alleges that Defendant Wesson:
falsely stated he was put in fear of his life and safety in court documents, on May 16, 2016 and May 19, 2016; despite at the May 11, 2016 meeting and press statements saying he was "unbelievably angry" at Plaintiff and said on May 11, 2016 that Plaintiff wasn't "man enough to say it to his face" (Third Amended Complaint, ¶ 33).Plaintiff also alleges that Wesson publicly identified Plaintiff at meetings (Third Amended Complaint, ¶ 35). As the Court previously ruled in the October 2, 2018 "Memorandum and Order re Second Amended Complaint": (1) the Rooker-Feldman doctrine bars Plaintiff's claims that Wesson made false statements in connection with the TRO proceedings; and (2) Defendant Wesson is immune from suit for state torts arising out of his remarks at a legislative meeting. See "Memorandum and Order re Second Amended Complaint," filed October 2, 2018, p. 41. Moreover, the Court previously dismissed without leave to amend any state tort claims arising out of alleged actions or omissions occurring after May 13, 2016.
Plaintiff also alleges that Defendant Wesson "furthered" the "false narrative" at a press conference at the "L.A. Sentinel Headquarters" in May 2016. . . ." (Third Amended Complaint, ¶ 34). In the Third Amended Complaint, Plaintiff does not allege the exact date of the press conference. However, Plaintiff attached to his Second Amended Complaint a newspaper article titled "Leaders call for hate-speech probe," purporting to describe a press conference regarding Plaintiff occurring at the Los Angeles Sentinel office the day before the publication of the article (see Second Amended Complaint, Ex. 6). Plaintiff also attached an alleged front page from the Los Angeles Daily News, dated May 24, 2016, bearing the same photograph as that in the other article and the caption "Leaders call for [sic]" (Second Amended Complaint, Ex. M [sic]). In his opposition, Plaintiff alleges that "press conferences and media coverage on a mass scale" assertedly occurred on May 23, 2016 (Opposition, p. 12). Plaintiff does not oppose Defendants' request for judicial notice of news articles indicating that the press conference occurred on May 23, 2016 (see Defendants' Request for Judicial Notice, Exs. C, D, E). Again, the Court previously dismissed without leave to amend all of Plaintiff's state tort claims allegedly arising out of actions or omissions occurring after May 13, 2016, including the alleged press conference.
Plaintiff further alleges that, on May 13, 2016, Defendant John Doe 2 purportedly published a photo of Plaintiff wearing a hood at a City meeting, falsely stating that the photo depicted a hooded Plaintiff handing the speaker card directly to Wesson on May 11, 2016 (Third Amended Complaint, ¶¶ 18, 33-34). Plaintiff alleges that Defendant Rossitter purportedly was a "long time employee and friend of John Doe 2" and "coordinated" the May 13, 2016 press coverage "along with Wesson" (id., ¶ 34). Plaintiff's conclusory allegations that Defendants Wesson and Rossitter "coordinated" with John Doe 2 to publish the allegedly false information are insufficient to state any cognizable claim for relief against Defendants Wesson and Rossitter. See Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 521, 223 Cal. Rptr. 58 (1986) ("Conspiracy is not in itself a tort; it is simply a legal theory which will render all the participating members responsible for the wrong committed. [citation] In order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. [citation] In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient. [citation]"). The Court repeatedly has advised Plaintiff, both in this case and in another of Plaintiff's pending /// /// /// /// cases, that conclusory allegations are insufficient to state a cognizable claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009). Plaintiff nevertheless has persisted in making factually unsupported, conclusory allegations of Wesson's and Rossitter's involvement in the allegedly false media report.
Plaintiff does not deny that the photograph accurately depicted Plaintiff wearing a hood at a City meeting, but alleges that the photograph was taken at a "long ago unrelated meeting" (Third Amended Complaint, ¶ 34). Plaintiff does not explain how a report that Plaintiff, in a hood, had handed a speaker card directly to Wesson could harm Plaintiff's reputation any more profoundly than would Plaintiff's admitted wearing of KKK and Nazi garb at prior City meetings and Plaintiff's admitted submission of a speaker card bearing the word "Nigger," and the depiction of a burning cross and a person hanging from a tree. See First Amended Complaint, ¶¶ 25, 31.
As indicated above, the Court is also dismissing the action as against Defendant John Doe 2 for failure to effect timely service.
See, e.g., "Memorandum and Order Dismissing First Amended Complaint with Leave to Amend, filed April 17, 2018, at p. 22; "Memorandum and Order" filed November 20, 2017, at p. 20.
See, e.g., "Order Dismissing First Amended Complaint with Leave to Amend," filed March 12, 2018, at p. 19, and "Order, etc.," filed August 4, 2017, at p. 13, in Spindler v. City of Los Angeles, et al., 16-5655-JLS (E).
D. The Third Claim for Relief Is Insufficient.
The Third Claim for Relief is defective for a number of reasons. First, Plaintiff brings this claim against the City, despite the fact that the Court previously dismissed the claims against the City without leave to amend. Second, Plaintiff incorporates into the Third Claim for Relief all of Plaintiff's previous allegations, including allegations challenging the TRO, the Court of Appeal's decision and the constitutionality of California Civil Code section 527.8 as well as allegations otherwise barred by the Rooker-Feldman doctrine and/or legislative immunity - all allegations previously dismissed without leave to amend. Third, the Court previously advised Plaintiff that there is no damages remedy for violation of the free speech clause of the California Constitution. See Memorandum and Order filed November 20, 2017, at p. 26, citing DeGrassi v. Cook, 29 Cal. 4th 333, /// /// /// 343-44, 127 Cal. Rptr. 2d 508, 58 P.3d 360 (2002). Fourth, to the extent Plaintiff alleges Defendant Wesson made false statements to cause Plaintiff's arrest on May 13, 2016, Plaintiff, again, fails specifically to describe the alleged statements and fails to allege how the statements assertedly effectuated the arrest by warrant. Fifth, Plaintiff's allegation that Defendant Wesson expelled Plaintiff from the May 11, 2016 meeting for an "illicit" reason fails because Plaintiff does not describe the purported "illicit" reason or allege facts demonstrating how the expulsion assertedly violated the First Amendment. See Ashcroft v. Iqbal, 556 U.S. at 678, 686 (conclusory allegations insufficient to state federal civil rights claim); Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (same).
The Court also gave Plaintiff this same advisement in one of Plaintiff's other cases. See "Order Dismissing First Amended Complaint With Leave to Amend" in Spindler v. City of Los Angeles, et al., CV 16-5655-JLS(E), at p. 30.
See "Memorandum and Order re Second Amended Complaint," p. 28.
In any event, the California Court of Appeal's March, 2018 decision rejecting Plaintiff's First Amendment argument now may bar such a claim under the doctrine of issue preclusion. In the November 20, 2017 "Memorandum and Order," this federal Court ruled that the Complaint alleged facts sufficient to show that Plaintiff's speaker card was protected by the First Amendment. However, this "Memorandum and Order" was filed before Plaintiff litigated the issue to a contrary and final decision in the California Court of Appeal. Moreover, as noted above, the Third Amended Complaint (unlike the Complaint) does not allege any facts concerning the reason for Plaintiff's expulsion from the meeting. Nevertheless, the fact that, in 2017, the Court believed Plaintiff had alleged a legally sufficient claim might counsel in favor of granting Plaintiff further leave to amend, even perhaps a fourth leave to amend. However, for the reasons discussed herein, Plaintiff's obdurate conduct has demonstrated that the granting of leave to amend a fourth time ultimately would prove an idle act.
E. Plaintiff's Bane Act Claim Again Is Insufficient.
Plaintiff's Bane Act claim repeats his previous allegations concerning the alleged violation of the Second Amendment by the TRO and injunction, the alleged "lies" of Defendant Wesson in seeking the TRO, and Plaintiff's alleged placement in a "central police database" and on the "no-fly" list purportedly as a result of the TRO (see Third Amended Complaint, ¶¶ 42-44). The Bane Act claim also contains allegations concerning events in 2017 (Third Amended Complaint, ¶¶ 44-45 & n.1). The Court previously dismissed all of these claims and allegations without leave to amend.
Plaintiff's Bane Act claim also appears to be based in part on the alleged false arrest (see Third Amended Complaint, ¶ 41). Because Plaintiff's federal false arrest claim is insufficient for the reasons stated above, Plaintiff's Bane Act claim based on the alleged false arrest also is insufficient.
The Bane Act creates a cause of action against a person if that person "interferes by threat, intimidation, or coercion . . . with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States." Cal. Civ. Code § 52.1.
F. In the Remarkable Circumstances of This Case , Granting Further Leave to Amend Is Unwarranted; Plaintiff's History of Failing to Heed the Court's Orders Persuades the Court that Further Amendment Ultimately Would Be Futile.
A court "considers five factors in assessing the propriety of leave to amend - bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). Consideration of these factors yields the conclusion that the granting of another leave to amend would be unwarranted.
Plaintiff, a licensed attorney in active practice, filed this action more than two years ago. The action still has not progressed beyond the pleading stage. The Court's three prior orders granting leave to amend painstakingly described the manifold deficiencies in Plaintiff's previous pleadings. Heedless of these prior Orders, Plaintiff filed amended pleadings in which he copied large portions verbatim from his prior, insufficient pleadings. Plaintiff has persisted in asserting claims and allegations which the Court has informed Plaintiff are legally insufficient or have been dismissed without leave to amend. The present Third Amended Complaint is only the latest example of Plaintiff's contumacy.
In Plaintiff's oppositions to Defendants' motions to dismiss, Plaintiff repeatedly has incorporated lengthy passages copied verbatim from his pleadings. Plaintiff also has incorporated into his latest oppositions portions of oppositions filed in relation to prior motions to dismiss prior pleadings.
Plaintiff is not an untrained, unsophisticated pro se litigant. Plaintiff's continued disregard of the Court's orders concerning the insufficiency of his pleadings demonstrates bad faith. See Primus Automotive Financial Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) ("A party demonstrates bad faith by "delaying or disrupting the litigation or hampering enforcement of a court order" or where it "knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.") (citations omitted). Furthermore, Plaintiff's recalcitrance has required Defendants to file multiple motions to dismiss repetitive pleadings over a span of a year and a half, which has caused undue delay necessarily resulting in prejudice to Defendants.
As to the factor of previous amendments, in this case the Court previously granted Plaintiff leave to amend three times. Each time Plaintiff failed and refused to file an amended pleading containing cognizable claims for relief. See Ecological Rights Foundation v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (affirming dismissal without leave to amend where plaintiff had received three opportunities to amend its complaint to state a viable claim); Rubke v. Capitol Bancorp Ltd, 551 F.3d 1156, 1167 (9th Cir. 2009) (affirming dismissal of complaint with prejudice where plaintiff had been granted leave to amend but failed to correct deficiencies in amended pleading); Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims).
Given the manner in which Plaintiff has chosen to conduct himself in litigation herein, the granting of further leave to amend would be futile. As described above, Plaintiff has refused to heed the Court's orders detailing the deficiencies in his pleadings. Plaintiff has chosen instead to replead large portions of his dismissed, insufficient pleadings and to ignore the Court's admonitions that his amended complaint must comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff repeatedly has insisted on his own peculiar manner of pleading rather than the manner of pleading required by the Federal Rules of Civil Procedure and the orders of this Court. "Pleading is not like playing darts: a plaintiff can't keep throwing claims at the board until she gets one that hits the mark." R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1124 (9th Cir. 2011) (citation, internal brackets and quotations omitted). Plaintiff keeps throwing darts wherever he wants, while stubbornly ignoring all of the Court's efforts to direct him toward the mark. ///
In sum, Plaintiff has proven himself repeatedly willing to defy Court orders but repeatedly unwilling and/or unable to file a proper amended complaint. See Destfino v. Reiswig, 630 F.3d 952, 958-59 (9th Cir. 2011) ("Plaintiffs had three bites at the apple, and the court acted well within its discretion in disallowing a fourth.") (citation omitted); Plumeau v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile); see also Stanard v. Nygren, 658 F.3d 792, 801 (7th Cir. 2011) ("The principle that leave to amend should be freely granted does not require district judges to repeatedly indulge attorneys who show little ability or inclination to comply with the rules."); Gottschalk v. Litt, 2009 WL 1704991, at *6 (C.D. Cal. June 15, 2009) (in denying leave to amend, court recognized that "the pro se litigant is a licensed attorney and is not entitled to the deference ordinarily given to pro se plaintiffs"). In these remarkable circumstances, dismissal of the action without leave to amend and with prejudice is warranted.
ORDER
For the foregoing reasons: (1) the claims against the purported John Doe Defendants are dismissed without leave to amend but without /// /// /// /// /// /// prejudice; and (2) the Third Amended Complaint and the action otherwise are dismissed without leave to amend and with prejudice.
IT IS SO ORDERED.
Dated: May 10, 2019.
/s/_________
JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE Presented this 12th day of March, 2019, by: /s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE