Ricotta v. State of California
| Decision Date | 15 April 1998 |
| Docket Number | No. 97CV1667-J (CGA).,97CV1667-J (CGA). |
| Citation | 4 F.Supp.2d 961 |
| Parties | Thomas Daniel RICOTTA, Plaintiff, v. STATE OF CALIFORNIA et al., Defendant. |
| Court | U.S. District Court — Southern District of California |
Thomas Daniel Ricotta, in pro per.
Daniel E. Lungren, Atty. Gen., Karen M. Walter, Deputy Atty. General, San Diego, CA, for State of Cal., Commission on Judicial Performance.
Marie M. Moffat, Gen. Counsel, Dina E. Goldman, Asst. Gen. Counsel, San Francisco, CA, for State Bar of Cal.
John J. Sansone, County Counsel, Deborah A. McCarthy, Deputy County Counsel, San Diego, CA, for County of San Diego, Judges, Judges Pro Tem, and Commissioner in Official Capacities.
Matthew D. Murphey, Murphey Law Offices, A.P.C., Carlsbad, CA, for Individual Defendants in their Private Capacities.
John Farrell, El Cajon, CA, for Potential Contemnor Lois Brown Kelly.
On November 5, 1997, Thomas Ricotta ("Plaintiff") filed an Amended Complaint ("Am.Compl.") alleging the following four causes of action: 1) violations of his civil rights under 42 U.S.C. § 1983, 2) violations of the Racketeer Influenced and Corrupt Organizations Act, ("RICO") 18 U.S.C. § 1962(c), 3) conspiracy to interfere with his civil rights pursuant to 18 U.S.C. §§ 1985 and 1986, and 4) a cause of action for equitable, injunctive, declaratory relief and restitution. In his Amended Complaint Plaintiff names eighteen Defendants who allegedly harmed him during dissolution proceedings initiated by his former wife on April 30, 1991, and culminated in September of 1996. For the purpose of this Order the Court has categorized the eighteen Defendants into four separate groups identified as: 1) the "County,"1 2) the "State,"2 3) the "Bar"3 and, 4) the "Individuals."4
This matter comes before the Court on all Defendants' (except Fred Weedon) motions to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) & 12(b)(6). The Defendants have all filed various notices of motions, memorandums of points and authorities, and notices of joinder in each others motions and memorandums. Subsequent to the filing of the motions to dismiss, Fred Weedon ("Weedon") filed a motion to set aside the entry of default. Weedon's motion is also addressed in this Order.
Additionally, the Individuals filed an ex parte application for an order to show cause why Plaintiff and his alleged ghost-writing attorney, Lois Brown Kelly, should not be held in contempt of court. On February 2, 1998, this Court issued an Order to Show Cause and has received memorandums of points and authorities, and declarations from defense counsel, Plaintiff, and the claimed ghost-writing attorney Lois Brown Kelly. The request for a finding of contempt is also analyzed in this Order.
On Tuesday, February 16, 1998, the Court heard oral argument from all parties on all of the above mentioned motions, except for Weedon's request to set aside the entry of default.5 Subsequently, this Court took the matters under submission, and on February 20, 1998, issued an order requesting supplemental briefing from the County and Plaintiff to explain what Judgment Plaintiff claimed Commissioner Etta C. Gillivan allegedly signed which resulted in her inclusion in his Amended Complaint.
For the reasons set forth below this Court:
1) DISMISSES with PREJUDICE Plaintiff's first and third causes of action as to all Defendants for lack of subject matter jurisdiction.6
2) DISMISSES with PREJUDICE Plaintiff's second cause of action for RICO violations as to all Defendants for failure to state a claim.7
3) DISMISSES with PREJUDICE Plaintiff's fourth cause of action for equitable relief as to all Defendants because the requested relief is beyond the Court's subject matter jurisdiction.
4) GRANTS Defendant Weedon's request to set aside the entry of default.
5) DENIES the Individual Defendants' request for finding Plaintiff and Lois Brown Kelly in contempt of court, and
6) DIRECTS the Clerk of the Court to close this case file in its entirety.
The facts and circumstances of this case arise from marriage dissolution proceedings between Plaintiff and his former wife Ellen Ricotta. On April 30, 1991, Ellen Ricotta filed a petition for dissolution against Plaintiff in San Diego County Superior Court. (Am.Compl.¶ 2). The dissolution trial commenced on January 24, 1992, at which time Plaintiff was represented by counsel. (Am. Compl.¶ 10). On March 19, 1992, Judge William Howatt, Jr., issued a Statement of Decision. (Am.Compl.¶ 16). Plaintiff requested several clarification hearings which resulted in a second trial in February of 1993. (County's Mem. at 4). Since that time, there have been numerous motions and hearings, four separate appeals brought by Plaintiff, and several complaints filed by Plaintiff to the Commission on Judicial Performance and the California State Bar. (Am.Compl.¶ 5). As a result of the trials, hearings, and rehearings, Ellen Ricotta was awarded certain amounts of money and property from the marital estate. (Individuals' Mem. at 2). In addition, Plaintiff was assessed portions of Ellen Ricotta's attorneys' fees. (Individuals' Mem. at 2).
On September 15, 1997, Plaintiff filed his original complaint. On October 15, 1997, Plaintiff filed a RICO case statement. On November 5, 1997, Plaintiff filed an Amended Complaint naming Commissioner Etta C. Gillivan as a Defendant. The essence of Plaintiff's lawsuit is his contention that the Judges, Commissioner, attorneys, and individuals involved in the marriage dissolution proceedings conspired to deprive him of his rights under the First, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments of the United States Constitution. Accordingly, Plaintiff wants this Court to award damages in the amount of the judgments plus interest on all monies, "he wrongfully was compelled to pay in satisfaction of judgments." (Am. Compl. ¶ 113). Plaintiff also wants damages for the loss of his business reputation and credit status that prevented him from earning a livelihood. Plaintiff requests compensatory and punitive damages. (Am. Compl.¶ 115).
The Court spent considerable time reading and re-reading Plaintiff's Amended Complaint. At the outset the Court must note that it found the Amended Complaint very difficult to follow. More importantly, the Amended Complaint is filled with conclusory allegations. Plaintiff alleges that "the State Law upon which the Superior Court has (sic) seized and relinquished and will relinquish in the future is invalid, in that the law was used by a CRIMINAL ENTERPRISE, Racketeer influenced and corrupt organization act (CIVIL RICO) and a violation of plaintiff's Constitutional Rights." (Am. Compl. at 2). In support of this argument, Plaintiff summarizes a trilogy of events from the dissolution proceedings that allegedly substantiate the causes of action. For instance, Plaintiff asserts that on January 24, 1992, the first day of trial, Ellen Ricotta's attorney, Defendant Paul E. Gavin ("Gavin"), (Am. Compl.¶ 10). Plaintiff continues to accuse Defendant Gavin of wrongdoing by stating that:
[Gavin] has a history of milking a case like this one which he has called, "Cash Cow." When there is an estate of $1,000,000 he feels he has a right to 10%, and he has a history of getting $100,000 dollars in fees out of case. Then he runs just as he did in this case. Attorney Gavin also bragged how he never will compromise, unless, his client makes him. This is a statement he has made to other attorneys. He uses this symbiotic relationship with the judges to get his ill goten gains to wine and dine judges to get personal favors to in rich his criminal enterprise.
Plaintiff makes a series of allegations against various judges that presided over his dissolution proceedings. For instance, Plaintiff proclaims that:
[w]hen [Plaintiff] first entered Judge Howatt's courtroom on January 24, 1992, his clerk Karen Knard stated that the Judge hates family law and she hates family law and neither wanted any part of this case. [Plaintiff] could hear Judge Howatt's speaking to someone in his chambers. [Plaintiff] heard Judge Howatt mention his name and talking about the case. From the judge's opening statement [Plaintiff] could tell he was already prejudiced.
Plaintiff then accuses Judge Thomas R. Murphy of bribery by stating that "Judge Murphy refused to rule and then offered [Old Republic Title Company] a bribe ... of $10,000 to close the escrow." (Am.Compl.¶ 56).
Next, Plaintiff submits a request to the Court to take judicial notice that:
the San Diego County Superior Court is corrupt by the Federal Convictions of Presiding Judge Greer, and Superior Court Judge Malkus and Superior Court Judge Adams. This Federal Case # 96-698 et. al. is the same kind Modis Aperandi of Attorneys bribing judges to get exorbitant legal fees, and gain advantage by this illegal act, but just different players .... (90) The history of corruption in the San Diego County Courts, and chain of bias all the way to the Appeals court is the same kind of corruption as in this case, [Plaintiff] request a judge from outside San Diego County hear this case. [Plaintiff] request that the same rights afforded to Judges Greer, Malkus, and Adams be afforded him, to have unbiased judge.
(91) The plaintiff requests the court to take Judicial Notice of United States Supreme Court Justice Brandies statement in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72...
To continue reading
Request your trial
-
Teaupa v. U.S. Nat'l Bank N.A.
...[Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.”); Ricotta v. California, 4 F.Supp.2d 961, 968 n. 7 (S.D.Cal.1998) (“The Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to dismiss under Fed.R.Civ.P. ......
-
Marzan v. Bank of Am.
...[Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.”); Ricotta v. California, 4 F.Supp.2d 961, 968 n. 7 (S.D.Cal.1998) (“The Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to dismiss under Fed.R.Civ.P. ......
-
Ram v. Mortgage
...by other defendants which had appeared."). See also Bach v. Mason, 190 F.R.D. 567, 571 (D. Idaho 1999); Ricotta v. California, 4 F. Supp. 2d 961, 978-79 (S.D. Cal. 1998). Here, non-appearing defendant Lawyers Incorporation Services and non-moving defendant Western Reconveyance Corporation a......
-
Mackintosh v. Lyft, Inc.
...by other defendants which had appeared"); see also Bach v. Mason, 190 F.R.D. 567, 571 (D. Idaho 1999); Ricotta v. California, 4 F. Supp. 2d 961, 978-79 (S.D. Cal. 1998). Here, all Defendants are similarly situated, as the Court's Rule 8 logic is applicable to each and every Defendant—whethe......
-
Planning discovery
...v. Vaudenberg , 95 F.3d 580, 583 (7th Cir. 1996); Pilgrim v. Littlefield , 92 F.3d 413, 416 (6th Cir. 1996); Ricotta v. California , 4 F. Supp. 2d 961, 971-72 (S.D. Cal. 1998); Toms v. Pizzo , 4 F. Supp. 2d 178, 183 (W.D.N.Y. 1998); Slaby v. Fairbridge , 3 F. Supp. 2d 22, 27 (D.D.C. 1998); ......
-
Planning discovery
...v. Vaudenberg , 95 F.3d 580, 583 (7th Cir. 1996); Pilgrim v. Littlefield , 92 F.3d 413, 416 (6th Cir. 1996); Ricotta v. California , 4 F. Supp. 2d 961, 971-72 (S.D. Cal. 1998); Toms v. Pizzo , 4 F. Supp. 2d 178, 183 (W.D.N.Y. 1998); Slaby v. Fairbridge , 3 F. Supp. 2d 22, 27 (D.D.C. 1998); ......
-
Planning discovery
...v. Vaudenberg , 95 F.3d 580, 583 (7th Cir. 1996); Pilgrim v. Littleield , 92 F. 3d 413, 416 (6th Cir. 1996); Ricotta v. California , 4 F. Supp. 2d 961, 971-72 (S.D. Cal. 1998); Toms v. Pizzo , 4 F. Supp. 2d 178, 183 (W.D.N.Y. 1998); Slaby v. Fairbridge , 3 F. Supp. 2d 22, 27 (D.D.C. 1998); ......
-
Planning Discovery
...v. Vaudenberg , 95 F.3d 580, 583 (7th Cir. 1996); Pilgrim v. Littlefield , 92 F.3d 413, 416 (6th Cir. 1996); Ricotta v. California , 4 F. Supp. 2d 961, 971-72 (S.D. Cal. 1998); Toms v. Pizzo , 4 F. Supp. 2d 178, 183 (W.D.N.Y. 1998); Slaby v. Fairbridge , 3 F. Supp. 2d 22, 27 (D.D.C. 1998); ......