Opinion
3:20-cv-01085-JO-MDD
03-29-2022
NANCY SUSSMAN, MICHAEL SUSSMAN ESTATE THEREOF BY AND THRU HIS SPECIAL ADMINISTER FOR THE ESTATE, Plaintiff, v. SAN DIEGO POLICE DEPARTMENT, et. al., Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
HON. JINSOOK OHTA UNITED STATES DISTRICT JUDGE
Defendants Judge Kenneth So; Judge Gregory Pollack; District Attorney Summer Stephan; Assistant District Attorney Wendy Patrick; City Attorney Mara Elliot; former Deputy City Attorney Ryan Scott; the San Diego Police Department; individually named San Diego Police Department Officers; the California Department of Motor Vehicles; the Certified Board of Registered Nursing; Alfonso and Esperanza Martinez; Joel and Mary Johnson; California Highway Patrol Officer Erick Parra; Allstate Northbrook Indemnity Company; Prime Healthcare Paradise Valley, LLC dba Paradise Valley Hospital; and Dr. Prakash Bhatia filed motions to dismiss Plaintiffs Second Amended Complaint on various grounds, including res judicata; judicial, prosecutorial, and state immunity; improper service of process; and failure to state a claim. Dkts. 73, 76, 78, 80-81, 83-86, 89-90. For the reasons stated below, the Court grants Defendants' motions to dismiss.
I. BACKGROUND
Plaintiff Nancy Sussman's son, Michael Sussman, was convicted in San Diego Superior Court for a variety of misdemeanors related to a domestic violence incident and was given a one-year sentence. Shortly after being released from jail, Mr. Sussman died of a drug overdose. In the instant action, the second of two lawsuits she has filed in the Southern District of California, Plaintiff brings fourteen claims based in part on a conspiracy between Judges, attorneys, government organizations, and private parties to harm her and her son and violate their civil rights during the prosecution and conviction of Mr. Sussman. See Dkt. 70 (the "SAC"). Plaintiff also brings claims based on a series of apparently unrelated grievances, including allegedly unlawful arrests, confinement to a psychiatric unit, and revocation of her driver's license and nursing license.
A. Plaintiff's Prior Federal Court Action
On June 6, 2019, Plaintiff sued in the United States District Court for the Southern District of California, alleging a conspiracy to falsely prosecute and convict Mr. Sussman. Nancy Sussman, et al. v. San Diego Police Dept, et al, Case No. 19cv1063-DMS-JLB (the "Prior Action"). In the Prior Action, the purported conspirators included Judge Kenneth So, the San Diego Police Department (the "SDPD"), the San Diego City Attorney's Office (the "City Attorney's Office"), City Attorney Mara Elliot, former Deputy City Attorney Ryan Scott, Lieutenant Jeff Jordon, and Alfonso Martinez, among other defendants. See Prior Action Dkt. 9. On November 4, 2019, the District Court dismissed Plaintiff s Second Amended Complaint with prejudice. See Prior Action Dkt. 110. On September 15, 2020, the Ninth Circuit affirmed. See Prior Action Dkt. 128.
B. The Instant Action
After the dismissal of her Prior Action, Plaintiff filed the instant action on June 15, 2020. The Defendants described below have moved to dismiss the claims against them.
i. Judicial Defendants
In the SAC, Plaintiff claims that Defendants Judge Kenneth So and Judge Gregory Pollack (together, the "Judicial Defendants") illegally acted to harm Plaintiff and Mr. Sussman in violation of their civil rights. Plaintiff contends, as she did in the Prior Action, that Judge So unfairly presided over the criminal trial of Mr. Sussman, which resulted in Mr. Sussman's "fake conviction" and death. SAC at 11-13, 17-18. Unrelated to the criminal prosecution of her son, Plaintiff claims Judge Pollack presided over a civil harassment matter during which he wrongfully issued a "forged" restraining order against Plaintiff and in favor of Plaintiffs neighbors. See Alfonso Martinez v. Nancy Sussman, Superior Court of California, County of San Diego, Case No. 37-2016-0004513 6-CU-HRCTL; SAC at 6, 9, 16-17. Based on the above, Plaintiff alleges the following claims against the Judicial Defendants: (1) violations of unspecified rights under § 1983 (Count I); (2) abuse of process (Count II); (3) RICO (Count V); (4) interference with a federal lawsuit (Count VIII); and (5) interference with prospective economic advantages (Count XIV).
Because Plaintiff has not assigned a unique number to each Count in her SAC, for the purpose of this opinion, the Counts are referred to sequentially in the order they appear. Additionally, Plaintiff names certain Defendants in the Count headings but alleges no facts with respect to them. For the purposes of its analysis, the Court has only considered Defendants against whom some facts are alleged within each Count as Defendants to that Count.
ii. The Prosecutorial Defendants
Plaintiff also names District Attorney Summer Stephan ("DA Stephan"), Assistant District Attorney Wendy Patrick ("ADA Patrick"), City Attorney Mara Elliot, and former Deputy City Attorney Ryan Scott (together, the "Prosecutorial Defendants"). Plaintiffs allegations against the Prosecutorial Defendants appear to center around the prosecution of Mr. Sussman. Plaintiff alleges that DA Stephan subjected her and her son to unidentified "fake trials" and concealed the SDPD's and DA's conspiracy of regularly conducting fake trials. SAC at 4. Plaintiff does not further clarify the contours of this alleged conspiracy.: Plaintiff also claims that DA Stephan refused to investigate her son's death in 2018. Id. at 23. According to Plaintiff, ADA Patrick participated in these events, although her role is not specified. Id. 4, 12-13, 23. As to City Attorney Elliot and former Deputy City Attorney Scott, Plaintiff claims that they improperly prosecuted Mr. Sussman by "condoning perjury and false evidence" but does not allege further facts in support. Id. at 12.
Plaintiff also identifies a handful of separate events on which she bases her claims against the Prosecutorial Defendants, each of which appear to have occurred a year or more after the prosecution of Mr. Sussman. Plaintiff alleges DA Stephan arrested Plaintiff in 2019, on the false charge of criminally threatening Defendant Alfonso Martinez to improperly influence the outcome of the Prior Action. Id. at 14-15. Plaintiff further appears to claim that ADA Patrick participated in this wrong by falsely representing to the state court in the same criminal action that Plaintiff had threatened Alfonso Martinez. Id. at 15-16. Other than claiming that she was in fact innocent of having threatened Defendant Martinez, Plaintiff does not plead further detail. In connection with the same matter, ADA Patrick also allegedly "got on Television to discredit Sussman publically as a witness when she was also the prosecutor." Id. at 15. Plaintiff does not identify the statements that ADA Patrick made to the press.
Plaintiff further claims that Defendant City Attorney Elliot committed abuse of process by "filing a felony restraining order against Sussman using false document provided to her by the District Attorney." Id. at 15. Plaintiff does not state any further context or facts in support of this allegation. Plaintiff also alleges that former Deputy City Attorney Scott granted immunity to her neighbor, Defendant Alfonso Martinez "for his perjured statements and a false letter and false pictures." Id. at 7. Plaintiff does not provide any additional detail, although this allegation appears to be unrelated to Mr. Sussman's prosecution. Former Deputy City Attorney Scott also allegedly sent defamatory letters to the Certified Board of Registered Nursing, along with Defendants Alfonso and Esperanza Martinez and Joel and Mary Johnson, reporting "Sussman as 'crazy' mentally Ill' under arrest, in jail etc. Criminal etc, in essence defaming Sussman." Id. at 31.
Based on the foregoing, Plaintiff alleges violations of unspecified rights under § 1983 and RICO against the Prosecutorial Defendants (Counts I and V); conspiracy to obstruct justice and interference with a federal lawsuit against DA Stephan and ADA Patrick (Count VII-VIII); abuse of process against DA Stephan, ADA Patrick, and City Attorney Elliot (Count II); and defamation and interference with prospective economic advantage against former Deputy City Attorney Scott (Counts XIII-XIV).
ii. The State Agency Defendants
Plaintiff brings claims against two state agencies, the California Department of Motor Vehicles (the "DMV") and the California Board of Registered Nursing (the "CBRN") based on discrete events unrelated to the prosecution of Mr. Sussman. With respect to the DMV, Plaintiff appears to allege that it wrongfully suspended her license on an unidentified date and again in 2020. SAC at 9, 28-29. After the first suspension, Plaintiff "demanded of the DMV the suspension be removed it was not." Id. at 28. Then, in 2020, she contends that the DMV knowingly suspended her license based on false police reports, despite her "excellent driving skills." Id. at 9, 28-29. Based on the above, Plaintiff brings a claim fashioned as "discrimination . . . excessive fines and wrongful suspensions of Sussman license to drive" (Count XI).
The Court liberally construes this pro se claim as arising under § 1983, because Plaintiff appears to allege that her license was suspended wrongfully and without due process of law. In addition, although the DMV is named in Plaintiffs RICO claim alleging a conspiracy related to the prosecution of Mr. Sussman, Plaintiff does not specifically allege what role the DMV played in any conspiracy.
Unrelatedly, Plaintiff claims that the CBRN violated its fiduciary duty to her and deprived her of due process when it revoked her nursing license in 2019. Id. at 30-33. According to Plaintiff, the CBRN wrongfully inactivated her nursing license even though Plaintiff had satisfied the applicable licensing requirements, and the CBRN failed to inform her of same. Id. The CBRN also allegedly wrongfully relied on defamatory complaints about Plaintiff in revoking Plaintiffs license. Id. Plaintiff further claims that the CBRN failed to disclose the complaints to Plaintiff or give her a chance to rebut them, and that her nursing license was ultimately revoked "behind [her] back" and without giving Plaintiff an opportunity to contest. Id. at 31-32. Based on the foregoing, Plaintiff brings an unspecified claim against the CBRN, which the Court liberally construes as a claim brought under § 1983 (Count XIII).
Plaintiff appears to claim that her nursing license was revoked wrongfully and without due process of law. Like the DMV, although the CBRN is named in Plaintiffs RICO claim, Plaintiff does not specify the CBRN's alleged role in any conspiracy.
iv. The SDPD Defendants
Plaintiff brings claims against the SDPD and certain individually named SDPD Officers (the "SDPD Defendants") as members of an alleged conspiracy to prosecute Mr. Sussman. Plaintiff states that Mr. Sussman's prosecution was "was being done for the police dept." SAC at 12. Plaintiff does not further elaborate on the SDPD Defendants' role in any conspiracy.
Plaintiff also brings claims against the SDPD Defendants based on three arrests unrelated to Mr. Sussman's prosecution. Id. at 14-15, 18-19. During Plaintiff s first arrest on August 17, 2019, the SDPD and individually named Officer Tharp allegedly "performed an illegal search of Sussman glove compartment and during that search placed a knife in the glove compartment." Id. at 19. During Plaintiffs second arrest on October 28, 2019, the SDPD allegedly used "brutal force" and "used unlawful search and seizure to obtain warrant on Sussman." Id. at 14. With respect to Plaintiffs third arrest on December 30, 2019, Plaintiff claims that the SDPD "took Sussman on a wild and reckless police chase in her vehicle based upon a false warrant." Id. at 18. During this arrest, Plaintiff states that individually named SDPD Officers Highhorse and Mondello jumped on her and "put Sussman handcuffs on so tight Sussman suffered heart pains," respectively. Id. at 18-19. Based on the above, Plaintiff brings the following claims against the SDPD Defendants: (1) violations of unspecified rights under § 1983 (Count I); (2) abuse of process (Count II); (3) unlawful search and seizure, excessive force, and unlawful arrest under § 1983 (Counts III-IV); and (4) RICO (Count V).
v. The Neighbor Defendants
Plaintiff names four of her neighbors as Defendants: Alfonso and Esperanza Martinez and Joel and Mary Johnson. As in the Prior Action, Plaintiff names Defendant Alfonso Martinez as a member of a conspiracy to wrongfully prosecute and convict Mr. Sussman. SAC at 18. Unrelated to those claims concerning her son, Plaintiff also alleges that Defendant Alfonso Martinez submitted a false police report in 2019 that Plaintiff threatened him. Id. at 7-8, 14-16. In yet another incident, unspecified persons purportedly "hired" Defendant Alfonso Martinez "to spy on the Sussman with 24/7 cameras from his roof and report all activities to them for entrapment purposes ... and instructed him to video tape the Sussman's and easedrop on them 24/7 and report activities to the SDPD so he could testify against the Sussman's with immunity." Id. at 6. As to Defendant Esperanza Martinez, the spouse of Defendant Alfonso Martinez, Plaintiff states that she "fabricated evidence in a police report and submitted false testimony at a court hearing." Id. at 8. Plaintiff does not specify, however, what evidence was fabricated, what testimony was false, nor the court hearing at which testimony took place.
Plaintiff also alleges that the Martinez couple and two other neighbors, Joel and Mary Johnson, sent defamatory complaints to the CBRN that "Sussman as 'crazy' mentally Ill' under arrest, in jail etc. Criminal etc, in essence defaming Sussman," which caused Plaintiff to lose her nursing license. Id. at 30-36.
Based on the above, Plaintiff brings the following claims against Defendants Alfonso and Esperanza Martinez and Joel and Mary Johnson: RICO (Count V); an unspecified claim that the Court construes as defamation (Count XIII); and interference with prospective economic advantages (Count XIV). Plaintiff also brings an abuse of process claim against Defendant Alfonso Martinez (Count II).
vi. Defendant CHP Officer Parra
Plaintiff alleges that Defendant California Highway Patrol ("CHP") Officer Erick Parra falsely arrested Plaintiff in January 2020, failed to mirandize her, and wrongfully reported her to the DMV. SAC at 28-30. Although Plaintiff appears to claim that CHP Officer Parra's report resulted in the DMV's suspension of her license in 2020, Plaintiffs claim against CHP Officer Parra is otherwise unrelated to her remaining claims. Based on these contentions, Plaintiff brings an unspecified claim for false arrest against CHP Officer Parra (Count XII). Plaintiff also names CHP Officer Parra in her RICO claim, although she alleges no further facts with respect to him and does not identify his role in any conspiracy.
The Court construes Plaintiffs claim against Officer Parra as arising under state law because Plaintiff explicitly pleads counts under federal law on each of her allegedly unlawful arrests but does not cite to federal law in the claim against Officer Parra. See SAC at 28-30.
vii. Defendant Allstate
Plaintiff brings a claim against Defendant Allstate Northbrook Indemnity Company ("Allstate") based on an insurance dispute that is unrelated to the rest of her claims. Plaintiff states that she was in a car accident on August 17, 2019, that resulted from the other driver's negligence. SAC at 25. Plaintiff alleges that Allstate promised to do an independent investigation into the accident but ultimately failed to do so. Id. at 25-27. Plaintiff concludes that Allstate violated the implied covenant of good faith and fair dealing by failing to perform an adequate investigation, settling with the other driver, filing a SR 22 form indicating Plaintiff was at fault, and lying to Plaintiff regarding the fact of the SR 22 form and the settlement. Id. Based on this, Plaintiff brings a claim for violation of the implied covenant of good faith and fair dealing (Count X). Plaintiff also names Allstate in her RICO claim but does not allege Allstate's involvement in any conspiracy.
viii. Defendants Paradise and Dr. Bhatia
Plaintiff brings claims against Prime Healthcare Paradise Valley, LLC dba Paradise Valley Hospital ("Paradise") and Dr. Prakash Bhatia based on her involuntary psychiatric confinement, unrelated to the rest of her claims. SAC at 24-25. Plaintiff does not specify the dates or circumstances of her confinement but appears to suggest that she was wrongfully confined to the psychiatric unit without her consent. Plaintiff claims that Paradise and Dr. Bhatia accepted transfer of Plaintiff to Paradise's psychiatric unit without Plaintiffs consent and that Defendant Dr. Bhatia knew that Plaintiff did not have a mental health condition but refused to release her. Id. at 24. Plaintiff purportedly was only allowed to leave the psychiatric hospital after Dr. Bhatia fraudulently "orchestrated a pretend hearing." Id. at 24-25. Based on this, Plaintiff brings state law claims of false imprisonment, fraud, and deceit against Paradise and Dr. Bhatia (Count IX).
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12 (b)(6) is read in conjunction with Rule 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While Rule 8 does not require detailed factual allegations, at a minimum, a complaint must allege enough facts to provide "fair notice" of both the particular claims being asserted and "the grounds upon which [those claims] rest[]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citations omitted).
In deciding a motion to dismiss, all material factual allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A court, however, need not accept all conclusory allegations as true. Rather it must "examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 115, 1121 (9th Cir. 1992). A motion to dismiss should be granted if a plaintiff s complaint fails to contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Pro se complaints are "held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). A pro se plaintiffs complaint must be construed liberally to determine whether a claim has been stated. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). However, a pro se litigant's pleadings still must meet some minimum threshold in providing the defendants with notice of what it is that they allegedly did wrong. See Brazil v. U.S. Dep 't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
III. DISCUSSION
A. Judges, Prosecutors, and State Agencies are Immune from Suit
The Judicial Defendants, the Prosecutorial Defendants, the DMV, and the CBRN each seek to dismiss Plaintiffs claims against them on grounds of judicial immunity, prosecutorial immunity, and state immunity, respectively. For the reasons set forth below, the Court finds that the Judicial Defendants, the Prosecutorial Defendants, the DMV and the CBRN are immune from suit, and the claims against them are dismissed.
i. Judicial Defendants
Plaintiffs claims for violations of unspecified rights under § 1983, abuse of process, RICO, interference with a federal lawsuit, and interference with prospective economic advantages against Judge So and Judge Pollack are barred by judicial and Eleventh Amendment immunity. Judges are "immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Judicial immunity "applies 'however erroneous the act may have been, and however injurious in its consequences it may have proved to plaintiff." Id. (quoting Cleavinger v. Saxner, 474 U.S. 193, 199 (1985)); Butler v. Gammick, 173 F.3d 859 (9th Cir. 1999) (noting judicial immunity bars claims that judge conspired with others to render an adverse ruling). "The factors relevant in determining whether an act is judicial relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Ashelman, 793 F.2d at 1075-76 (citation and internal quotation marks omitted). State judges are further insulated from suit by the Eleventh Amendment. Lund v. Cowan, 5 F.4th 964, 969 (9th Cir. 2021), cert, denied, 142 S.Ct. 900 (2022).
Accordingly, the Court examines whether the Judicial Defendants performed the acts stated in the SAC in their judicial capacity to determine whether Plaintiffs claims are barred by judicial and Eleventh Amendment immunity. Here, the SAC alleges acts that are judicial in nature because each-presiding over Mr. Sussman's trial, issuing a restraining order, and issuing court documents-are functions typically performed by a judge and, according to Plaintiff, were done in connection with criminal and civil proceedings over which the Judicial Defendants had jurisdiction. SAC at 6, 9, 11-13, 16-18. Plaintiff, who used to be an attorney, also appears to contend that Judge Pollack retaliated against her when he reported her conduct to the State Bar of California. This act is also judicial in nature because reporting unethical attorney conduct is well within the typical acts of a judge. Id. at 23; California Code of Judicial Ethics, Canon 3(D)(2). Because all the Judicial Defendants' acts are judicial in nature, Plaintiffs claims against the Judicial Defendants are barred by both judicial immunity and Eleventh Amendment immunity.
The Court rejects Plaintiffs conclusory statement in the SAC that Judge Pollack is sued in his individual capacity because the Court finds that the alleged conduct falls squarely within Judge Pollack's judicial role. See SAC at 6.
ii. Prosecutorial Defendants
Plaintiffs claims against Defendants DA Stephan, ADA Patrick, City Attorney Elliot, and former Deputy City Attorney Scott are barred by the doctrine of prosecutorial immunity. Prosecutorial immunity shields prosecutors from civil damages suits premised upon acts committed within the scope of their official duties which are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Bums v. Reed, 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor's malicious or dishonest action deprived defendant of his or her liberty. Ashelman, 793 F.2d at 1075. Prosecutorial immunity applies wherever a prosecutor "acts as an advocate in initiating a prosecution and in presenting the state's case." Id. at 1076 (citation and quotations omitted).
Nearly all of Plaintiffs allegations concerning the Prosecutorial Defendants involve prosecutorial acts closely tied to the initiation and presentation of state prosecutions. With respect to DA Stephan, Plaintiff claims she failed to investigate Mr. Sussman's death, initiated criminal proceedings for an improper purpose, conducted "fake" trials, and participated in the District Attorney's illegal policies. SAC at 4, 12-15, 23. ADA Patrick likewise allegedly initiated criminal proceedings for an improper purpose, and misrepresented facts to the court. Id. at 12-16. As to City Attorney Elliot, she allegedly filed a felony restraining order against Plaintiff. Id. at 15. Finally, with respect to former Deputy City Attorney Scott, Plaintiff primarily contends that he granted a witness immunity, and that the witness ultimately committed perjury. Id. at 7. Each of these acts involves Defendants DA Stephan, ADA Patrick, Elliot, and Scott initiating prosecutions and presenting the state's case in court. Therefore, these acts cannot form a basis for liability.
Plaintiffs only allegations against the Prosecutorial Defendants not covered by prosecutorial immunity is that ADA Patrick made statements to the press. In Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor's statements to the press are not protected by prosecutorial immunity because prosecutors do not make press statements as advocates for the state. 509 U.S. at 277-78. Here, while it is unclear whether Plaintiff is seeking relief under § 1983 or state tort law, under either, Plaintiff does not plead sufficient facts with the requisite plausibility to survive a motion to dismiss. To the extent Plaintiffs allegations are brought under § 1983, no constitutional violation has been alleged. West v. Atkins, 487 U.S. 42, 48 (1988) ("To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution"). To the extent Plaintiffs claim arises under state tort law, Plaintiff has not pleaded compliance with the California Tort Claims Act. Cal. Gov. Code §§911.2, 945.4; Mangold v. California Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (noting that the CTCA requires "timely presentation of a written claim and [] rejection" and a "plaintiff must allege compliance or circumstances excusing compliance"). Plaintiff further fails to identify what ADA Patrick said to the press or how her statements harmed Plaintiff. Accordingly, Plaintiffs claim against ADA Patrick based on her statements to the press is dismissed.
Plaintiff suggests that ADA Patrick's actions deprived Plaintiff of her right to appeal the Prior Action, but Plaintiff successfully filed an appeal. See Prior Action Dkt. 128.
iii. State Agency Defendants
Because the CBRN and the DMV are California state agencies, Plaintiffs § 1983 claims in Counts XI and XIII are barred by the Eleventh Amendment. Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); Sabatini v. California Bd. of Registered Nursing, 2019 WL 1082445, at *2 (S.D. Cal. Mar. 7, 2019); Cal. Bus. & Prof. Code § 2701; Cal. Vehicle Code § 1500. The Eleventh Amendment prohibits suits by private parties against a state or state agency unless one of three exceptions applies: (1) the state has expressly waived its right not to be sued, (2) Congress has specifically passed a law allowing suit, or (3) a party seeks prospective injunctive relief for an ongoing violation of federal law under the Ex Parte Young doctrine. In re Lazar, 237 F.3d 967, 976 (9th Cir. 2001) (recognizing consent and abrogation as exceptions to Eleventh Amendment immunity); Yakama Indian Nation v. State of Wash. Dep't of Revenue, 176F.3d 1241, 1245 (9th Cir. 1999) (state's consent must be unequivocal and express); Doe v. Regents of the Univ. of California, 891 F.3d 1147, 1153 (9th Cir. 2018) (holding the Ex Parte Young doctrine allows for prospective injunctive relief against state officials named in their official capacity). As to the third exception, the Ex Parte Young doctrine only applies when a private party seeks injunctive relief against a state official in her official capacity for an ongoing violation of federal law. Doe v. Lawrence Livermore Nat. Lab 'y, 131 F.3d 836, 839 (9th Cir. 1997). Claims brought under state law, for non-injunctive relief, or for retrospective relief are not permitted. See id.
None of the exceptions to Eleventh Amendment immunity saves Plaintiffs claims against the CBRN and the DMV; the claims therefore must be dismissed. Here, Plaintiff does not allege either the CBRN or the DMV has consented to suit. In fact, both agencies have specifically denied consenting to suit in moving to dismiss the SAC. Dkt. 73 at 9-10 (denying consent); Dkt. 76 at 9 (same). Moreover, Congress has not specifically allowed suits against states or their agencies under § 1983. Dittman, 91 F.3d at 1025-26. Finally, the Ex Parte Young doctrine does not apply because Plaintiffs claim against the CBRN, requesting her reinstatement, is alleged against the agency, not individuals in their official capacity. Moreover, her claim against the DMV does not seek prospective injunctive relief. Accordingly, Plaintiffs Counts XI and XIII against the CBRN and the DMV are dismissed.
B. Plaintiffs Claims Arising Out of the Trial, Conviction, and Death of Michael Sussman are Barred by Res Judicata
Plaintiffs Counts I and V appear to allege that Defendants conspired to and did in fact harm Plaintiff and Mr. Sussman by prosecuting and convicting Mr. Sussman, and ultimately causing his death. Because these allegations were litigated in the Prior Action, Counts I and V are barred by res judicata.
Res judicata, also known as claim preclusion, precludes parties from relitigating issues that were or could have been raised in a prior action, and can serve as the basis for granting a motion to dismiss. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); see also Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Res judicata is applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity of the parties. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'I Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).
i. There is an Identity of Claims
In determining whether res judicata bars Plaintiffs current claims regarding her son's trial and death, the Court first examines whether they are essentially the same as those in the Prior Action. Identity of claims exists "when two suits arise from 'the same transactional nucleus of facts.'" Tahoe-Sierra, 322 F.3d at 1078 (citation omitted). Even "[n]ewly articulated claims based on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been brought in the earlier action." Id. Although the specifics of Plaintiff s allegations in both actions are difficult to discern, it is clear that Plaintiffs Prior Action arose out of the trial, conviction, and death of Mr. Sussman. Prior Action Dkt. 110 at 2. There, Plaintiff alleged a conspiracy to wrongfully convict Mr. Sussman, and ultimately cause his death. See Id. Here, Plaintiffs claims likewise appear to arise out of the same transactional nucleus of facts, i.e., the trial, conviction, and death of Mr. Sussman. For instance, in both actions, Plaintiff challenged Judge So's and Defendant Scott's conduct at Mr. Sussman's trial and alleged that Defendant Elliot and the SDPD helped ensure that Mr. Sussman was convicted. As such, the Court finds an identity of claims between the two actions, and the first element is met.
ii. There is a Final Judgment on the Merits
The second element of res judicata is met because Plaintiffs Prior Action was resolved on the merits. A dismissal with prejudice constitutes a "final judgment on the merits" for res judicata purposes. Leon v. IDX Systems Corp., 464 F.3d 951, 962 (9th Cir. 2006); see also Beard v. Sheet Metal Workers Union, Local 150, 908 F.2d 474, 477 n.3 (9th Cir. 1990) ("Federal law dictates that a dismissal with prejudice bars a later suit under res judicata."). Plaintiffs Prior Action seeking redress for the death of her son was dismissed with prejudice and affirmed on appeal, satisfying the second element. See Prior Action Dkts. 110, 128.
iii. The Relevant Parties Are Identical
Finally, the third element of res judicata is met with regard to Defendants the SDPD, City Attorney Elliot, former Deputy City Attorney Scott, Alfonso Martinez, and Judge So, because they were also defendants to the conspiracy claims surrounding Plaintiffs son in the Prior Action. In both actions, Nancy Sussman is the Plaintiff and the SDPD, the San Diego City Attorney's Office, Mara Elliot, Ryan Scott, Alfonso Martinez, and Judge So are Defendants. Thus, the third element of res judicata is clearly met as to Counts I and V against these Defendants. (In the instant action, Plaintiff names additional Defendants to these conspiracy counts. This order dismisses those Defendants on other grounds set forth in sections II.A and II.C-D.)
Because all the elements for res judicata are met, Plaintiffs Count I and Count V are dismissed as to the aforementioned Defendants.
C. Plaintiffs RICO Claim Does Not State a Claim for Relief
Plaintiffs Count V is a RICO claim against all Defendants for causing the death of Mr. Sussman. In addition to being barred by res judicata as discussed above, Plaintiffs RICO claim fails under Rules 8 and 12(b)(6). To state a claim for a RICO violation, a plaintiff must allege: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). An "enterprise" includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). "Racketeering activity" is any act indictable under the several provisions of Title 18 of the United States Code. Id. § 1961(1). A "pattern of racketeering activity" requires at least two predicate acts. Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008). To establish a RICO injury, the plaintiff must show "harm to a specific business or property interest and if the alleged business or property interest is cognizable under state law." Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1055 (9th Cir. 2008) (citation omitted).
Plaintiffs civil RICO claim against all Defendants does not appear to plead any of the required elements. Plaintiff claims that Defendants committed multiple illegal acts over the past ten years, ranging from "Satanic Jury trials" to "causing the death of Michael Sussman." The following is the entirety of Plaintiff s RICO allegations:
All the defendants named herein engaged in multiple acts of corruption, Obstruction of Justice, murders, mail fraud, obstruction of justice, violation of 18 USC Sec 4. Aggressive, Public Corruption, and repeated brutality by the Police Dept. Fake and Satanic Jury trials, Conspiracy to take property rights away from Nancy Sussman and causing the death of Michael Sussman... Defendants have engaged in said criminal conduct for at least the last ten years Nancy Sussman asked for prosecution for murder of Michael... All defendants named took part in deprivation of constitutional rights and fraud and all are responsible for Rico violations named and for the covert murder of Michael Sussman age 24 and conspiracy to obstruction of justice, theft as described herein, false imprisonment, tampering with evidence, mail fraud. Public corruption which resulted in death. The actions of the named defendants are equivalent to the actions of the Mafia ... Tampering with evidence also. Plaintiff seeks damages according to proof, per civil Rico statute and hopefully a criminal indictment as well. . . Defendants So and Pollack retalaiated againsta witness to deny their civil rights. SAC at 20.
As seen above, Plaintiff does not properly allege the existence of an enterprise or predicate acts and does not identify cognizable relief. For one, Plaintiff does not plead the existence of an enterprise, the nature of the alleged enterprise, or Defendants' purported roles in the enterprise. Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) ("To show the existence of an enterprise under the second element, plaintiffs must plead that the enterprise has (A) a common purpose, (B) a structure or organization, and (C) longevity necessary to accomplish the purpose.").
Nor does Plaintiff identify any predicate acts, let alone a pattern of racketeering activity. Yagman v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017) (holding that unspecified civil rights violations and conclusory references to mail fraud do not constitute predicate acts). Finally, as was the case in the Prior Action, deprivation of constitutional rights and false imprisonment are not cognizable injuries under RICO. Diaz v. Gates, 420 F.3d 897, 899-900 (9th Cir. 2005) (holding that plaintiff cannot recover under RICO based upon allegations of false imprisonment); Lauter v. Anoufrieva, 642 F.Supp. 1060, 1085-86 (CD. Cal. 2009) (holding that deprivation of constitutional rights is not compensable under RICO). For these reasons, Plaintiffs RICO claim is dismissed.
D. Plaintiff's Remaining Federal Claims Based On Her Arrests Are Dismissed
The SDPD Defendants seek dismissal of Plaintiff s claims for violations of civil rights under § 1983, abuse of process, and RICO under Counts I-V on the grounds that the SDPD is not a proper Defendant, and the individually named SDPD Officers have not been properly served. For the reasons stated below, Plaintiffs claims against the SDPD Defendants are dismissed.
First, Plaintiff may not sue the SDPD under § 1983 absent allegations of a policy or custom because the SDPD is a municipality, not a "person" as required by the statute. 42 U.S.C. § 1983; United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005) (Ferguson, J., concurring) ("[M]unicipal police departments and bureaus are generally not considered 'persons' within the meaning of section 1983"); Rodriguez v. Cnty. of Contra Costa, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (noting that outside of the Monell exception, "sub-departments or bureaus of municipalities, such as the police departments, are not generally considered 'persons' within the meaning of § 1983."). Plaintiff does not argue, nor can she, that the SDPD is not a municipality. Nor can Plaintiff argue that the SDPD is a proper Defendant based on Plaintiffs factual allegations concerning discrete arrests and the SDPD's alleged involvement in her son's conviction and trial. Therefore, Plaintiff cannot pursue her § 1983 claims against the SDPD and her claims against it are dismissed.
Second, Plaintiffs claims against various SDPD Officers fail for insufficient service of process. "A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4." Lawrence v. Krahne, 698 Fed.Appx. 504, 504 (9th Cir. 2017) (citation omitted). To properly serve the Defendants, Plaintiff needed to comply with Fed.R.Civ.P. 4(e) and a file a separate proof of service as to each Defendant to demonstrate compliance. Fed.R.Civ.P. 4(e) (provides that service can be effected by (1) personal delivery, (2) delivery at dwelling to someone of suitable age and discretion residing there, (3) delivery to authorized agent, or (4) by compliance with applicable state laws. California state law specifies that a summons can be served by personal delivery, substitute service following reasonable diligence, service by mail with notice and acknowledgement of receipt, or by publication. Cal. Code Civ. Proc. §§ 415.10-50. "Once service is challenged, plaintiff[] bear[s] the burden of establishing that service was valid under Rule 4." Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
The Court agrees with Defendants that Plaintiff "did not properly serve the individually named Defendants under California law or Federal law." Dkt. 86-1 at 16. Plaintiff apparently served the SDPD Officers-including City Attorney Jeff Jordon, erroneously sued as Officer Jordan of the SDPD-by leaving copies at the SDPD with an Officer "McAndrew." See Dkts. 8, 12-18, 21-22. This method of substitute service does not comply with Rule 4 because there is no evidence that Plaintiff made prior reasonable efforts to personally serve the Defendants, generally defined as two to three attempts, pursuant to Cal. Code Civ. Proc. § 415.20. Jes Solar Co. Ltd. v. Tong Soo Chung, 725 Fed.Appx. 467, 469-70 (9th Cir.), amended on denial of reh'g, 716 Fed.Appx. 635 (9th Cir. 2018) (finding insufficient service where plaintiff did not argue prior attempts were made and there was no evidence in the record of same); Avalos v. MMDEOL Inc., 2021 WL 540380, at *4 (E.D. Cal. Jan. 12, 2021) (collecting cases). Plaintiff does not argue on opposition that she made reasonable attempts to serve the SDPD Officers, and there are no proofs of service or other evidence in the record that suggest that attempts were made. Thus, the Court does not have personal jurisdiction over the SDPD Officers, and the claims against them are dismissed.
E. The Court Declines To Exercise Supplemental Jurisdiction Over Plaintiffs Remaining State Law Claims
With the dismissals set forth above, the only remaining claims are state law claims for suspected murder (Count VI); false imprisonment (Count IX); violation of the implied covenant of good faith and fair dealing (Count X); false arrest (Count XI); defamation (Count XIII); and interference with prospective economic advantages (Count XIV). Plaintiffs remaining state law claims are dismissed for lack of supplemental jurisdiction. The Court has "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). In determining whether to exercise supplemental jurisdiction, the Court examines whether the federal and state law claims "derive from a common nucleus of operative fact[s] ... such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Even where supplemental jurisdiction exists, the Court may decline to exercise supplemental jurisdiction if "(1) the claim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c); Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 2002). In deciding whether to exercise supplemental jurisdiction, the court should consider the interests of judicial economy, convenience, fairness, and comity. City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 172-73 (1997); Smith v. Lenches, 263 F.3d 972, 977 (9th Cir. 2001).
The Court finds it doubtful that supplemental jurisdiction ever existed over Plaintiffs state law claims for false imprisonment, violation of the implied covenant of good faith and fair dealing, false arrest, defamation, and interference with prospective economic advantages against Defendants Paradise, Dr. Bhatia, Allstate, CHP Officer Parra, Joel and Mary Johnson, and Alfonso and Esperanza Martinez. Plaintiffs only federal claim against all of these Defendants is her RICO claim. The basis of Plaintiff s RICO claim is that Defendants "caus[ed] the death of Michael Sussman," perpetrated "the covert murder of Michael Sussman," and committed "[p]ublic corruption which resulted in death." SAC at 20; see also Section III.B supra. In contrast, Plaintiffs state law claims are based on an array of discrete events, including (1) Allstate's alleged bad faith settlement of a car accident, (2) Paradise's and Dr. Bhatia's alleged confinement of Plaintiff to a psychiatric award, (3) Joel and Mary Johnson's and Alfonso and Esperanza Martinez's alleged interference with Plaintiffs nursing license, and (4) CHP Officer Parra's false arrest of Plaintiff. These events are wholly unrelated to the facts underlying the RICO claim, and thus, even reading Plaintiffs SAC liberally, there is no common nucleus of operative facts permitting supplemental jurisdiction.
Plaintiff also brings a claim against Anders Holthaus for "suspected murder," (Count VI), which is dismissed for lack of supplemental jurisdiction along with the other state law claims.
Even if the Court were to find that supplemental jurisdiction over the remaining state law claims once existed under 28 U.S.C. § 1367(a), the Court would decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c). Because the Court has dismissed all of Plaintiffs federal claims-the claims that conferred original jurisdiction-the Court need not exercise supplemental jurisdiction over the remaining unrelated state law claims. See Section III.A-B supra; 28 U.S.C. § 1367(c); Sanford v. Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.") (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), superseded on other grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 (10th Cir. 2000)). Thus, Plaintiffs remaining claims are dismissed.
F. Dismissal With Prejudice
The Court finds that certain of Plaintiff s claims must be dismissed with prejudice. Dismissal with prejudice is warranted where amendment would be futile because flaws in the claims cannot be cured. Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (finding leave to amend futile where "plaintiffs cannot cure the basic flaw in their pleading"); Upton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (same; noting that where flaws cannot be cured, there is "no need to prolong the litigation by permitting further amendment"). When claims are barred by immunity or by res judicata, amendment is plainly futile. Riggs v. Jud. Conf. of U.S., 137 Fed.Appx. 72 (9th Cir. 2005) (affirming dismissal with prejudice on res judicata grounds); Strand v. Gov't of U.S., 846 F.2d 1383, at *2 (9th Cir. 1988) (affirming dismissal with prejudice on immunity grounds); see also Golden v. Hubbell Inc., 343 Fed.Appx. 226, 227-28 (9th Cir. 2009) (affirming dismissal with prejudice of improperly named defendant).
Plaintiffs claims against the Judicial Defendants, the Prosecutorial Defendants, and the SDPD must be dismissed with prejudice because amendment would be futile. First, Plaintiffs claims against the Judicial Defendants are absolutely barred by judicial immunity, and thus Plaintiff cannot cure her claims as to them. Similarly, except for Plaintiffs claim against ADA Patrick based on her statements to the press, Plaintiff cannot cure her claims against the Prosecutorial Defendants because they are absolutely barred by prosecutorial immunity. Lastly, the SDPD is an improperly named Defendant and Plaintiffs § 1983 claims against it cannot be cured by any restatement of the facts. Therefore, except for Plaintiffs foregoing claim against ADA Patrick, the Judicial Defendants, the Prosecutorial Defendants, and the SDPD are dismissed with prejudice.
Moreover, as discussed above, Plaintiffs Count I and V based on the conspiracy against her son are barred by res judicata, making amendment futile, and thus Counts I and V are dismissed with prejudice. Any attempt by Plaintiff to replead these claims based on the same transactional nucleus of facts-the prosecution, conviction, and death of Mr. Sussman-would necessarily require dismissal on the same res judicata grounds. Amendment would therefore be futile and only prolong the litigation. Accordingly, Counts I and V are dismissed with prejudice.
Plaintiffs remaining claims are dismissed without prejudice because amendment would not be clearly futile at this juncture. Nevertheless, Plaintiff is on notice that the SAC does not provide a short and plain statement of claims or state a claim as required by Rules 8 and 12(bX6). Plaintiff has 45 days from the date of this order to file an amended complaint on the claims dismissed without prejudice.
IV. CONCLUSION AND ORDER
For the reasons set out above, the Court grants Defendants' motions to dismiss [Dkts. 73, 76, 78, 80-81, 83-86, 89-90].
IT IS SO ORDERED.