Ervin v. California
| Decision Date | 11 July 2018 |
| Docket Number | Case No.: 3:18-cv-00442-GPC-RBB |
| Court | U.S. District Court — Southern District of California |
| Parties | JOHN L. ERVIN, an individual, Pro Se, Plaintiff, v. STATE OF CALIFORNIA, XAVIER BECERRA, in his official capacity as attorney general of the state of California, and DOES 1-10 inclusive, Defendants. |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Before the Court is Defendants State of California and Attorney General Xavier Becerra's Motion to Dismiss the First Amended Complaint.1 Dkt. No. 11. Plaintiff filed his opposition on May 25, 2018. Dkt. No. 13. Defendants filed a reply on June 8, 2018. Dkt. No. 15. Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the reasons set forth below, the Court GRANTS Defendants' Motion to Dismiss without leave to amend.
Plaintiff is a resident of the County of San Diego in the State of California. FAC ¶ 2. According to the FAC, Plaintiff was romantically involved with Carolina Altafulla Tarraga ("Altafulla") between March 2012 until February 2014. FAC ¶ 10. They purchased a home together as joint tenants in San Diego, CA in December 2013 and lived there together. Id. Altafulla allegedly began to cheat on Ervin with another man. Id. ¶ 11. On February 14, 2014, Ervin was allegedly sent in the mail a report made by a private investigator showing pictures of Altafulla performing felatio on another man in an airport parking lot. Id. ¶ 11. Plaintiff and Altafulla decided to end the relationship and Plaintiff agreed to buy her out of the house for $20,000. Afterwards, Altafulla began to repeatedly call the police on Ervin; the police negotiated a new living arrangement; and Altafulla and Plaintiff rearranged furniture pursuant to that arrangement. Id. ¶ 16.
On March 2, 2014, Ervin was served with a restraining order issued against him removing him from the home and requiring him not to have any weapons. Id. ¶ 17. On March 17, 2014, the family court extended the restraining order for five years, removed his right to bear arms, and removed his right to live in the common house. Id. ¶ 18. Several acts of abuse were identified including inter alia: Ervin's distribution of information about Altafulla's affair, statements regarding felatio made to Altafulla's children, and prior death threats. See Altafulla v. Ervin, 238 Cal. App. 4th 571, 580 (2015). The California Court of Appeal affirmed the rulings of the trial court finding (1) Ervin's conduct constituted harassment under the DVPA and was sufficient to support the issuance of a restraining order; (2) the DVPA withstood Ervin's challenges to the statute under the First and Second Amendments; (3) the trial court did not abuse its discretion in failing to grant his application for a restraining order against Altafulla; and (4) rejected Altafulla's request for sanctions. Ervin, 238 Cal. App. 4th at 577-582.
Plaintiff filed suit against Altafulla for partition and various causes of action in Civil Court in April 2014. FAC ¶ 19. In June 2016, Ervin obtained an injunction against Altafulla which assigned a referee to sell the house and evict Altafulla. Id. ¶ 22. In December 2016, Altafulla indicated to Ervin that she was nearly bankrupt and no judgment against her could be enforced, and thus Ervin settled for 100% of house proceeds. Id.
On February 27, 2018, Plaintiff filed this instant suit against the State of California and later amended his complaint to add the California Attorney General in his official capacity. See Dkt. No. 1, 9. Plaintiff raises four causes of action: (1) Deprivation of freedom of expression under the first amendment under 42 U.S.C. § 1983 against Defendant Becerra; (2) Deprivation of the Right to Bear Arms under 42 U.S.C. § 1983 against Defendant Becerra; (3) a violation of equal protection against Defendant Becerra because the protective order prevents Ervin from publicly discussing his former girlfriend's activities while others can do so; and (4) a common law claim for inverse condemnation alleging that the protective order denied plaintiff all economically viable use of his property against Defendants State of California and Becerra.
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests thesufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a plaintiff need not give "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Id. at 545. "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Mktg. Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998).
In addition, courts "liberally construe[]" documents filed pro se, Erickson v. Pardus, 551 U.S. 89, 94 (2007), affording pro se plaintiffs benefit of the doubt. Thompson, 295 F.3d at 895; see also Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (). However, the Ninth Circuit has declined to ensure that district courts advise pro se litigants of rule requirements. See Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986) ().
Defendants request that the Court take judicial notice of the California Court of Appeal's decision in Altafulla v. Ervin, 238 Cal. App. 4th 571 (2015). The Court will take judicial notice of this document as it is a matter of public record. See Intri-Plex Technologies, Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
Plaintiff requests that the Court take judicial notice of (1) a request to vacate a temporary restraining order from Ervin's ex-wife in In re Marriage of Ervin and Ben-Nun, San Diego Family Court Number DV033786, dated September 9, 2011; (2) a second request to vacate a temporary restraining order from Ervin's ex-wife in In re Marriage of Ervin and Ben-Nun, San Diego Family Court Number DV033786, dated January 13, 2012; (3) transcript excerpts from a restraining order hearing in In re Marriage of Ervin and Ben-Nun, San Diego Family Court Number DV033786, dated June 6, 2013; (4) minute order in Ervin v. County of San Diego, San Diego Superior Court Case No. 2014-00207, dated September 12, 2014. Plaintiff seeks to discount the assertion that he previously threatened his ex-wife and their three children by allegedly stating "One day I will take a gun and shoot all four of you." RJN, Dkt. No. 13-1 at 2. The Court need not consider the veracity of this fact in assessing the issues below. While these documents are properly subject to judicial notice as matters within the public record, the Court concludes that these documents are not relevant to the issues in the instant motion. Accordingly, the Court willdecline to take judicial notice of these documents.
As courts of original jurisdiction, federal district courts lack jurisdiction to review the final determinations of a state court in judicial proceedings. Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001). However, federal district courts do have jurisdiction over a "general constitutional challenge," i.e. one that does not require review of a final state court decision in a particular case. Id. (citing Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). This distinction between a permissible general constitutional challenge and an impermissible appeal of a state court determination may be subtle and difficult to make. Id. (citing Worldwide Church of God v. Mcnair, 805 F.2d 888, 891 (9th...
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