1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WESLEY C. DORSEY, Case No.: 18-cv-02588-AJB-MSB MARGARETE S. DORSEY, 12 ORDER: Plaintiffs, 13 (1) DISMISSING COMPLAINT v. WITH PREJUDICE AS 14 FRIVOLOUS PURSUANT TO GARY KREEP,

(e)(2)(B)(i); and 15 Defendant, (2) DENYING MOTION TO 16 PROCEED IN FORMA PAUPERIS LEAVITT INVESTMENT CO., AS MOOT 17 18 Real Party in Interest. (Doc. Nos. 1, 2) 19 20 Pro se Plaintiffs Wesley C. Dorsey, Jr. and Margarete S. Dorsey (“Plaintiffs”) filed 21 a Complaint against Defendant Judge Gary Kreep (“Defendant Judge Kreep”) alleging 22 fraud on the court and violation of the Due Process Clause of the Fourteenth Amendment. 23 (Doc. No. 1.) Plaintiffs have not paid the $400 filing fee required to commence this action, 24 but instead have filed Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (Doc. No. 2.) For the reasons set forth below, the Court DISMISSES Plaintiffs’ 26 Complaint WITH PREJUDICE and DENIES AS MOOT Plaintiffs’ IFP Motions. 27 // 28 // 1 I. Sua Sponte Screening Under

(e) 2 A. Standard of Review 3 Any complaint filed pursuant to the IFP provisions of

(a) is subject 4 to a mandatory and sua sponte review and dismissal by the Court if it finds the complaint 5 is frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking 6 monetary relief from a defendant immune from such relief.

(e)(2)(B); 7 Calhoun v. Stahl,

(9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 8 § 1915(e)(2)(B) are not limited to prisoners[.]”). “The purpose of [screening] is ‘to ensure 9 that the targets of frivolous or malicious suits need not bear the expense of responding.’” 10 Nordstrom v. Ryan,

, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 11 Health Sources, Inc.,

(7th Cir. 2012)). 12 B. Factual Background and Plaintiffs’ Allegations 13 In 2015, Leavitt Investment Company (“Leavitt”) filed an unlawful detainer action 14 against Plaintiffs in the Superior Court for the County of San Diego. (Doc. No. 1 at 4) 15 (citing Leavitt Investment Company v. Dorsey, Case No. 37-2015-00038520-CL-UD- 16 CTL). Defendant Judge Kreep presided over Plaintiffs’ unlawful detainer trial. (Id. at 5.) 17 A key issue at trial was whether the notice Leavitt provided was proper. (See

at 5–8.) 18 On this issue, Plaintiff Wesley C. Dorsey, Jr. testified, “I received three-day notices. I 19 continued to make payments. I continued to receive three-day notices up until November 20 10th.” (Id. at 5.) What happened next is the focus of Plaintiffs’ Complaint. (See id.) Based 21 on Mr. Dorsey’s testimony, Defendant Judge Kreep made an implied finding of fact that 22 Mr. Dorsey admitted to receiving notice, thus curing any alleged defect in service. (Id. at 23 5, 7–8.) Plaintiffs allege that Defendant Judge Kreep misconstrued Mr. Dorsey’s testimony. 24 (Id. at 5.) Specifically, Plaintiffs allege that Mr. Dorsey’s testimony regarding the 25 “November 10th” date was in reference to the date that Leavitt returned Plaintiffs’ 26 uncashed rent check via certified mail, not the date that Mr. Dorsey received the three-day 27 notice. (Id.) After trial, judgment was entered for Leavitt, Plaintiffs’ lease was forfeited, 28 and a writ of possession was issued and effected on March 14, 2016. (Id.) 1 Plaintiffs filed two motions for a new trial, both of which were denied. (Id. at 6.) In 2 his denial of Plaintiffs’ renewed motion for a new trial, Defendant Judge Kreep stated that 3 Plaintiffs waived any objection to the service of the three-day notice by failing to object at 4 trial. (Id.) Plaintiffs appeared ex parte on December 5, 2016 to argue the point further. (Id.) 5 Defendant Judge Kreep denied Plaintiffs’ ex parte application. (Id. at 6–7.) 6 Plaintiffs appealed Defendant Judge Kreep’s judgment to the Appellate Division of 7 the Superior Court for the County of San Diego. (Id. at 4, 6.) The Appellate Division 8 affirmed. (Id. at 7.) On February 29, 2017, Plaintiffs filed a petition for rehearing. (Id.) On 9 March 2, 2017, the Appellate Division issued a modified statement of decision denying the 10 petition for rehearing and reaffirming their prior ruling. (Id. at 8.) 11 Plaintiffs then filed a Complaint in this Court. (Doc. No. 1.) Plaintiffs’ Complaint 12 alleges Defendant Judge Kreep committed fraud on the court and violated Plaintiffs’ due 13 process rights when, at Plaintiffs’ renewed motion for new trial and ex parte hearing, he 14 failed to advise Plaintiffs that he had made an implied finding of fact that Mr. Dorsey’s 15 testimony constituted an admission that he had received notice. (Id. at 10–14.) 16 Plaintiffs’ Complaint asks this Court to (1) declare Defendant Judge Kreep’s 17 judgment void for fraud on the court, (2) dismiss the unlawful detainer action against 18 Plaintiffs with prejudice, and (3) direct the San Diego Superior Court to seal the records 19 from Plaintiffs’ unlawful detainer case. (Id. at 14–15.) In the alternative, Plaintiffs request 20 that this Court require the San Diego Superior Court to grant Plaintiffs a new trial. (Id. at 21 15.) 22 C. The Court Does Not Have Jurisdiction over Plaintiffs’ Claims 23 District courts lack subject matter jurisdiction to review appeals from state court 24 judgments. Rooker v. Fid. Tr. Co.,

, 415–16 (1923); D.C. Court of Appeals v. 25 Feldman,

(1983). Accordingly, lower federal courts cannot adjudicate 26 actions brought by “state-court losers” seeking relief from “state-court judgments rendered 27 before the district court proceedings commenced.” Lance v. Dennis,

, 460 28 (2006) (quoting Exxon Mobile Corp. v. Saudi Basic Industries, Corp.,

, 284 1 (2005)). The Rooker-Feldman doctrine precludes a federal district court from exercising 2 jurisdiction over general constitutional challenges that are “inextricably intertwined” with 3 claims asserted in state court. Fontana Empire Ctr., LLC v. City of Fontana,

, 4 992 (9th Cir. 2002) (quoting Feldman,

n.16). “Where the district court 5 must hold that the state court was wrong in order to find in favor of the plaintiff, the issues 6 presented to both courts are inextricably intertwined.” Doe & Assocs. Law Offices v. 7 Napolitano,

, 1030 (9th Cir. 2001). 8 Here, although Plaintiffs state two causes of action against Defendant Judge Kreep, 9 Plaintiffs are essentially arguing against the judgment he rendered in their state unlawful 10 detainer action. (See generally Doc. No. 1.) For instance, in their Complaint, Plaintiffs state 11 the actions that allegedly violated their rights occurred during two hearings during their 12 unlawful detainer case. (Id.) If this Court were to declare that Defendant Judge Kreep 13 violated Plaintiffs’ rights at these hearings by not advising them that Mr. Dorsey’s 14 testimony amounted to an admission that he received notice, this Court would essentially 15 be reversing Defendant Judge Kreep’s state court judgment. Thus, Plaintiffs’ claims in this 16 Court are “inextricably intertwined” with the state court claims, and this Court lacks 17 jurisdiction to hear them under the Rooker-Feldman doctrine. See Does & Assocs. Law 18 Offices, 252 F.3d at 1030. 19 D. Plaintiffs’ Claims are Duplicative 20 In addition, a preliminary review of Plaintiffs’ Complaint shows that it is subject to 21 sua sponte dismissal because it is duplicative of two other actions filed, and dismissed, in 22 the Southern District of California in 2017 and 2018, respectively. They are: 23 1) Dorsey v. Leavitt Investment Company, Case No. 3:17-cv-00615-DMS-JMA (“Dorsey I”) (Doc. No. 1) 24 2) Dorsey v. Kreep, 25 Case No. 3:17-cv-00871-WQH-NLS (“Dorsey II”) (Doc. No. 8)1 26

27 1 In Dorsey I, Judge Sabraw granted Plaintiffs leave to proceed IFP, but sua sponte dismissed Plaintiffs’ 28 1 A court may take judicial notice of “proceedings in other courts, both within and 2 without the federal judicial system, if those proceedings have a direct relation to matters at 3 issue.” Bias v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. 4 Medtronic, Inc.,

, 803 n.2 (9th Cir. 2002)); see also United States ex rel. 5 Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 1992). 6 A complaint is considered frivolous under

(e)(2)(B)(i) if it “merely 7 repeats pending or previously litigated claims.” Cato v. United States,

, 1105 8 n.2 (9th Cir. 1995) (construing former

(d)) (citations omitted). To 9 determine whether a suit is duplicative, courts in the Ninth Circuit “borrow from the test 10 for claim preclusion.” Adams v. Cal. Dep’t of Health Servs.,

, 688 (9th Cir. 11 2007), overruled on other grounds by Taylor v. Sturgell,

(2008). This is 12 a two-part test.

at 689 “[I]n assessing whether the second action is duplicative of the 13 first, [the court] examine[s] whether the causes of action and relief sought, as well as the 14 parties or privies to the action, are the same.”

; see also Chatman v. Super 8 Motel Co., 15 No. 3:18-cv-00213-BAS (NLS),

, at *3 (S.D. Cal. Feb. 20, 2018); Green 16 v. Solis, No. 3:18-cv-01804-CAB (BLM),

, at *4 (S.D. Cal. Oct. 3, 17 2018). Courts apply a transactional test to determine whether two causes of action are 18 similar. Adams, 487 F.3d at 689. “Whether two events are part of the same transaction or 19 series depends on whether they are related to the same set of facts and whether they could 20 conveniently be tried together.” Id. (quoting W. Sys., Inc. v. Ulloa,

(9th 21 Cir. 1992) and citing RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (AM. LAW. INST. 22 1982)). Courts consider four criteria: 23 (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether 24 substantially the same evidence is presented in the two actions; (3) whether 25 the two suits involve infringement of the same right; and (4) whether the two 26 27 I, Doc. No. 4.) In Dorsey II, Judge Hayes dismissed Plaintiffs’ action with prejudice finding that the federal court lacked jurisdiction under the Rooker-Feldman doctrine. (Dorsey II, Doc. No. 18 at 11–12.) Further, 28 1 suits arise out of the same transactional nucleus of facts. 2 Id. (quoting Constantini v. Trans World Airlines,

, 1201–02 (9th Cir. 1982)). 3 “The last of these criteria is the most important.” Constantini,

. 4 The Court holds that Plaintiffs’ claims in this instant action are duplicative of those 5 in Dorsey I and Dorsey II. First, in Dorsey I and Dorsey II, Plaintiffs alleged, as they do in 6 this case, that Defendant Judge Kreep violated their due process rights at the renewed 7 motion for a new trial in their unlawful detainer case. (Doc. No. 1 at 11–13); (Dorsey I, 8 Doc. No. 1 at 18–19); (Dorsey II, Doc. No. 8 at 12.) Additionally, in Dorsey I and Dorsey 9 II, Plaintiffs alleged Defendant Judge Kreep violated these rights when he: (1) failed to 10 address Plaintiffs’ contentions that service of the three-day notice was defective and that 11 Leavitt filed their complaint prematurely, and (2) when he failed to rule on whether there 12 was sufficient evidence to justify the court’s decision. (Dorsey I, Doc. No. 1 at 18–19); 13 (Dorsey II, Doc. No. 8 at 12.) And in Dorsey I and Dorsey II, Plaintiffs alleged Defendant 14 Judge Kreep violated their due process rights at the ex parte hearing when he failed to 15 address Plaintiffs’ contention that an objection to service cannot be waived. (Dorsey I, Doc. 16 No. 1 at 19–20); (Dorsey II, Doc. No. 8 at 13.) In this case, Plaintiffs again contend that 17 Defendant Judge Kreep violated Plaintiffs’ due process rights at the renewed motion for 18 new trial and ex parte hearing. (Doc. No. 1 at 11–14.) 19 Here, however, Plaintiffs additionally argue Defendant Judge Kreep violated their 20 rights when he failed to disclose his implied finding of fact that Mr. Dorsey’s testimony 21 amounted to an admission that he received notice. (Id.) But while Plaintiffs’ current due 22 process claims differ slightly from those in Dorsey I and Dorsey II, they ultimately allege 23 the same cause of action, against the same party, for conduct that arises out of the same 24 “transactional nucleus of facts” as the due process claims pled in Dorsey I and Dorsey II. 25 See Adams, 487 F.3d at 689. 26 The other remaining claim in Plaintiffs’ Complaint before this Court—fraud on the 27 court—is also duplicative. (Doc. No. 1 at 10–11.) In their original complaint in Dorsey II, 28 Plaintiffs alleged, as they do here, that Defendant Judge Kreep committed fraud on the 1 court at the ex parte hearing in their unlawful detainer case. (Doc. No. 1 at 11); (Dorsey II, 2 Doc. No. 1 at 16–17.) Specifically, Plaintiffs previously alleged that Defendant Judge 3 Kreep committed fraud by “act[ing] intentionally to ensure the trial courts judgment . . . 4 remained in favor of Leavitt” by failing to address Plaintiffs’ contention that their objection 5 to service could not be waived. (Dorsey II, Doc. No. 1 at 16–17.) Plaintiffs omitted their 6 allegations of “fraud on the court” from their first amended complaint in Dorsey II. (Dorsey 7 II, Doc. No. 8.) However, their allegations against Defendant Judge Kreep—that they were 8 harmed when he failed to address their contention that their objection to service could not 9 be waived—were substantively the same. (Dorsey II, Doc. No. 1 at 16–17, Doc. No. 8 at 10 13.) In the Complaint before this Court, Plaintiffs’ factual allegations are slightly different. 11 (Doc. No. 1 at 10–11.) Plaintiffs allege Defendant Judge Kreep committed fraud at both 12 the ex parte hearing and renewed motion for new trial by failing to disclose his implied 13 finding of fact that Mr. Dorsey’s testimony amounted to an admission that he received 14 notice. (Id.) Nevertheless, Plaintiffs’ fraud on the court claims allege almost identical 15 harms, against the same party, arising out of the same “transactional nucleus of facts” as 16 those from Dorsey I and Dorsey II. See Adams, 487 F.3d at 689. 17 Because Plaintiffs’ pending Complaint alleges the same facts, based on the same 18 incident, and re-alleges the same claims against Defendant Judge Kreep as in the 19 previously-filed complaints in Dorsey I and Dorsey II, this Court must dismiss this action 20 as duplicative and frivolous pursuant to

(e)(2)(B)(i). See Cato,

1105 n.2; Nordstrom,

n.1. 22 II. Conclusion and Orders 23 Accordingly, the Court DISMISSES this action with prejudice as frivolous pursuant 24 to

(e)(2)(B)(i) (Doc. No. 1), and DENIES Defendant’s request to proceed 25 IFP AS MOOT (Doc. No. 2). See Rosati v. Igbinoso,

(9th Cir. 2015) 26 (leave to amend is not required if “it is absolutely clear that the deficiencies of the 27 complaint could not be cured by amendment.”) (internal citations omitted); Lopez v. Smith, 28

, 1127 n.8 (9th Cir. 2000) (en banc) (noting that if claims are frivolous, “there 1 |/is, by definition, no merit to the underlying action and so no reason to grant leave to 2 ||amend.’’). 3 The Clerk of Court is DIRECTED to CLOSE this matter. 4 5 || IT IS SO ORDERED. 6 || Dated: November 13, 2019 | ZS i : Le 7 Hon. Anthony J.Battaglia 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28