Gomez et al v. Arizona, State of et al, No. 2:2016cv04228 - Document 172 (D. Ariz. 2017)

Court Description: ORDER granting 164 County Defendants' Motion to Dismiss as to Count Seven. Plaintiff's complaint (Doc. 141 ) is dismissed. IT IS FURTHER ORDERED denying as moot 147 Motion to Amend/Correct; 152 Motion to Dismiss Party; and 154 Motion to Dismiss for Lack of Jurisdiction. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 11/17/17.(LSP)

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Gomez et al v. Arizona, State of et al 1 Doc. 172 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Raymond P Gomez, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-16-04228-PHX-DGC State of Arizona, et al., 13 Defendants. 14 15 This case has been pending for almost one year. Four different complaints have 16 been filed. Docs. 1, 57, 60, 141. In the most recent second amended complaint, Plaintiff 17 Jesus Gomez, in his capacity as guardian for Catalina Gomez, filed a complaint with a 18 federal cause of action under 42 U.S.C. § 1983. Doc. 141. Plaintiff relies on this federal 19 claim to trigger supplemental jurisdiction over her remaining state-law claims. Id. ¶ 14 20 (citing 28 U.S.C. § 1367). As the Court previously noted, it will first consider the 21 viability of this federal claim before addressing arguments regarding the dismissal of 22 state-law claims against various Defendants. Doc. 140. 23 The Maricopa County Public Fiduciary, Maricopa County Attorney’s Office, 24 Andrea Cummings, and Jennifer Murphy (collectively, “County Defendants”) have 25 moved for judgment on the pleadings on the § 1983 claim. Doc. 164. The motion is 26 fully briefed, and no party requests oral argument. For the reasons that follow, the Court 27 will dismiss the § 1983 claim and decline to exercise jurisdiction over the remaining 28 state-law claims. Dockets.Justia.com 1 I. Background. 2 For purposes of this motion, Plaintiff’s factual allegations are accepted as true. 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Catalina Gomez stands at the factual heart 4 of this case. In connection with an ongoing conservatorship/guardianship matter brought 5 in Maricopa County Superior Court (PB2015-091767), Ms. Gomez was found 6 incompetent. Doc. 141 ¶ 15. Shortly before this finding of incompetence, Ms. Gomez 7 executed a deed of trust on a commercial parcel she owned located at 202 E. Broadway 8 Road in Mesa, Arizona (the “Property”), in return for a $175,000 loan. Id. ¶¶ 19-20. 9 On March 24, 2016, the probate court appointed the Maricopa County Public 10 Fiduciary (“MCPF”) as temporary conservator of Ms. Gomez’s estate. Id. ¶¶ 31-32; 11 Doc. 164-1 at 3. MCPF employee Jennifer Murphy handled the estate with the help of 12 Andrea Cummings from the Maricopa County Attorney’s Office (“MCAO”). Id. ¶¶ 33- 13 34. On April 25, 2016, the beneficiary of the deed of trust, Dafni LLC, recorded a notice 14 of trustee’s sale on the Property. Id. ¶ 21; Doc. 164-1 at 16; Doc. 170-1 at 45. On 15 May 16, 2016, the County Defendants filed an emergency motion to stay this sale for 180 16 days (Doc. 164-1 at 11), and the probate court addressed the motion at a June 16, 2016, 17 evidentiary hearing. Doc. 141 ¶¶ 37, 39; Doc. 170-2 at 41. The County Defendants did 18 not make an oral argument at the hearing (id. ¶ 42), but the court later prohibited sale of 19 the Property without its prior approval. Doc. 164-1 at 46; Doc. 170-2 at 58. 20 On July 6, 2016, the probate court replaced the County Defendants with a 21 permanent conservator, Southwest Fiduciary, Inc. Id. ¶ 16. On September 30, 2016, the 22 trustee’s sale occurred and Dafni purchased the Property with a credit bid of $179,118.16. 23 Id. ¶ 22. On October 4, 2016, the trustee executed a deed conveying the Property to 24 Dafni. Id. ¶ 23. 25 Southwest Fiduciary subsequently filed an initial inventory and appraisement of 26 Ms. Gomez’s estate, which estimated the value of the Property at $290,800. Id. ¶¶ 18-19; 27 Doc. 164-1 at 83. It also identified the deed of trust on the Property securing a $175,000 28 loan. Doc. 141 ¶¶ 18-19. These figures suggest that Ms. Gomez had more than $100,000 -2- 1 equity in the Property, but sale of the Property for a credit bid effectively eliminated any 2 equity. See id. ¶¶ 19-20, 22, 27. 3 Plaintiff alleges that the County Defendants failed to take any action to avoid the 4 trustee’s sale. Id. ¶ 26. Plaintiff asserts a claim against the County Defendants pursuant 5 to 42 U.S.C. § 1983 under this theory: “the Plaintiff was deprived of her property and 6 valuable property rights, including, among other things, her property and due process 7 rights under the Fourteenth Amendment to the United States Constitution, in violation of 8 the Constitution, and other Federal laws.” Id. ¶ 81. 9 II. Legal Standard. 10 Rule 12(c) is functionally identical to Rule 12(b)(6) and the same standard applies 11 to motions brought under either rule. Cafasso v. United States ex. rel. Gen. Dynamics C4 12 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). Thus, a successful Rule 12(c) motion 13 must show either that the complaint lacks a cognizable legal theory or fails to allege facts 14 sufficient to support its theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 15 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a 16 motion for judgment on the pleadings as long as it contains “sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 18 at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 19 facial plausibility when the plaintiff pleads factual content that allows the court to draw 20 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 21 (citing Twombly, 550 U.S. at 556). 22 III. Scope of Review. 23 The County Defendants ask the Court to take judicial notice of several exhibits, 24 which they characterize as public records. Doc. 164 at 3 n.3. A court may not consider 25 evidence outside the pleadings unless it converts the Rule 12(c) motion into a Rule 56 26 motion for summary judgment and gives the nonmovant an opportunity to respond. Fed. 27 R. Civ. P. 12(d); United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). A court 28 may, however, consider matters of judicial notice without converting the motion into one -3- 1 for summary judgment. See Northstar Fin. Advisors, Inc. v. Schwab Invs., 779 F.3d 2 1036, 1042 (9th Cir. 2015); Ritchie, 342 F.3d at 908. The Ninth Circuit has explained: 3 Courts may only take judicial notice of adjudicative facts that are “not subject to reasonable dispute.” Fed. R. Evid. 201(b). Facts are indisputable, and thus subject to judicial notice, only if they are either “generally known” under Rule 201(b)(1) or “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned” under Rule 201(b)(2). 4 5 6 7 8 Ritchie, 342 F.3d at 908-09. 9 Plaintiff does not object to the authenticity of the County Defendants’ exhibits. 10 The Court therefore takes judicial notice of Exhibits A through K, and N, which are 11 public records of the probate court proceedings. The Court will not consider Exhibits L, 12 M, and O, which do not appear to be official public records. 13 Plaintiff likewise refers to several exhibits in her response. See Doc. 170. The 14 County Defendants do not object to their consideration or their authenticity. The Court 15 therefore takes judicial notice of Exhibits 1 through 5, 7, 10 through 15, 19, and 20, 16 which are public records of the probate court proceedings. The Court will not consider 17 Exhibits 6, 8, 9, 16 through 18, or 21, as they do not appear to be official public records 18 and Plaintiff identifies no avenue through which the Court might otherwise consider 19 them. The Court notes, however, that consideration of these materials would not change 20 its decision. 21 IV. Discussion. 22 “Section 1983 is a vehicle by which plaintiffs can bring federal constitutional and 23 statutory challenges to actions by state and local officials.” Naffe v. Frey, 789 F.3d 1030, 24 1035 (9th Cir. 2015) (quotation marks and citation omitted). To state a claim under 25 § 1983, a plaintiff must allege two elements: (1) the violation of a right secured by the 26 Constitution or laws of the United States (2) by a person acting under the color of state 27 law. West v. Atkins, 487 U.S. 42, 48 (1988). Dismissal of a § 1983 claim “is proper if 28 the complaint is devoid of factual allegations that give rise to a plausible inference of -4- 1 either element.” Naffe, 789 F.3d at 1036. 2 A. 3 The County Defendants contend that their conduct was not the proximate cause of 4 the trustee’s sale. Doc. 164 at 8-9. Specifically, they argue that they acted only as the 5 temporary conservator until the permanent conservator’s appointment in July 2016. Id. 6 Because their involvement was terminated approximately three months before the 7 trustee’s sale, they argue, Plaintiff cannot show proximate causation. 8 counters that the County Defendants’ inaction despite knowledge of a potential trustee’s 9 sale was a contributing factor, even if the harm occurred after they were discharged. 10 Doc. 170 at 6. In particular, Plaintiff argues that although the County Defendants made a 11 motion to stay the sale, they did not make an oral argument in support of the motion or 12 assert any substantive basis to challenge the validity of the deed of trust. Id. at 4, 6. In 13 any event, Plaintiff argues that this point is an issue of fact that is more suitable for 14 summary judgment or trial. Id. at 6-7. Proximate Causation. Id. Plaintiff 15 The Court agrees with Plaintiff. “[A] question of causation is preeminently a 16 question of fact, to be decided after trial.” Tahoe Sierra Pres. Council., Inc. v. Tahoe 17 Reg’l Planning Agency, 34 F.3d 753, 756 (9th Cir. 1994). Plaintiff’s complaint, accepted 18 as true, suggests that the County Defendants neglected to take action to prevent the 19 trustee’s sale. According to Plaintiff’s complaint, this contributed to the harm. The 20 Court cannot grant judgment on the pleadings for lack of proximate causation. 21 B. 22 The County Defendants argue that the complaint fails to establish the requirements 23 for municipal liability under § 1983. Doc. 164 at 11-12. Plaintiff counters that the 24 complaint establishes municipal liability by alleging MCPF and MCAO’s failure to train 25 Ms. Cummings and Ms. Murphy. Doc. 170 at 10-11. Monell Liability. 26 Under § 1983, municipalities may not be held vicariously liable for their 27 employees’ violations of constitutional rights. Flores v. Cty. of L.A., 758 F.3d 1154, 28 1158 (9th Cir. 2014). “[W]hile a municipality may not be held liable under § 1983 for -5- 1 the torts of its employees on a theory of respondeat superior,” Fairley v. Luman, 281 2 F.3d 913, 916 (9th Cir. 2002), a municipality may be held liable “where the failure to 3 train [its employees] amounts to deliberate indifference to the rights of persons with 4 whom the [employees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 5 (1989). 6 The complaint alleges: “On information and belief, MCAO and/or MCPF failed to 7 train and supervise its employees and representatives, including Ms. Cummings and Ms. 8 [Murphy], with respect to the handling of conservatorships that included commercial 9 properties, properties in foreclosure, or avoidance of contracts entered into by an 10 incapacitated adult.” Doc. 141 ¶ 85. Plaintiff provides no factual allegations to support 11 this contention. Instead, she merely offers a conclusion that the MCAO or MCPF failed 12 to train Ms. Cummings and Ms. Murphy. Id. The lack of factual allegations to establish 13 a failure to train means that the Court cannot “infer more than the mere possibility of 14 misconduct[.]” Iqbal, 556 U.S. at 679. For this reason, the Court will grant judgment in 15 favor of the MCAO and MCPF. 16 C. 17 The County Defendants contend that Plaintiff’s § 1983 claim fails because 18 Plaintiff received procedural due process in the probate court. Doc. 164 at 12. Plaintiff 19 counters that the poor quality of County Defendant’s representation in those proceedings 20 effectively deprived them of procedural due process. Doc. 170 at 11. Procedural Due Process. 21 “To obtain relief on § 1983 claims based upon procedural due process, the plaintiff 22 must establish the existence of (1) a liberty or property interest protected by the 23 Constitution; (2) a deprivation of the interest by the government; and (3) lack of process.” 24 Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) 25 (internal quotation marks omitted). 26 The complaint fails to identify any relevant procedures Plaintiff was denied. Nor 27 does Plaintiff cite any authority to suggest that the County Defendants’ failure to make an 28 oral argument or assert the invalidity of the deed of trust denied her the procedural -6- 1 protections of probate court. Indeed, the complaint is replete with references to probate 2 court filings, hearings, and orders. E.g., Doc. 141 ¶¶ 15-18, 24, 30-32, 37-39, 42-43. 3 The complaint does not allege that the County Defendants circumvented probate court 4 procedures or orders to facilitate the trustee’s sale. The Court will grant judgment in 5 favor of the County Defendants on the procedural due process claim.1 6 V. Disposition. 7 Plaintiff’s complaint asserts seven state-law claims against various Defendants. 8 Doc. 141. Plaintiff alleges that the Court has supplemental jurisdiction over her state 9 claims pursuant to 28 U.S.C. § 1367. Id. ¶ 14. But with the only federal claim dismissed, 10 the Court has discretion to dismiss the remaining state-law claims. 11 § 1367(c)(3). “To decline jurisdiction under section 1367(c)(3), the district court must 12 first identify the dismissal that triggers the exercise of discretion and then explain how 13 declining jurisdiction serves the objectives of economy, convenience and fairness to the 14 parties, and comity.” Trs. of Constr. Indus. & Laborers Health & Welfare Tr. v. Desert 15 Valley Landscape and Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003). 28 U.S.C. 16 Plaintiff’s state-law claims are most properly addressed by the courts of Arizona – 17 courts charged with administering the laws of Arizona and more familiar with state-law 18 claims. This is particularly true given the state-court origins of this case and the state 19 procedures governing guardianships. Courts have recognized that when all federal claims 20 are eliminated early in a case and only state claims remain, the district court has “a 21 powerful reason to choose not to continue to exercise jurisdiction.” Carnegie-Mellon 22 Univ. v. Cohill, 484 U.S. 343, 351 (1988); see Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 23 1 24 25 26 27 28 Plaintiff does not suggest that she is asserting a substantive due process claim, and the Court concludes that she could not assert such a claim. “To violate substantive due process, the alleged conduct must ‘shock the conscience’ and ‘offend the community’s sense of fair play and decency.’” Marsh v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)). This is a heavy burden – the complaint must identify conduct “so egregious, so outrageous, that it may be fairly said to shock the contemporary conscience.” Goldyn v. Clark Cty., 346 F. App’x 153, 155 (9th Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998)). Mere negligence is insufficient – “the Constitution does not guarantee due care on the part of state officials.” Lewis, 523 U.S. at 848-49. Plaintiff’s complaint alleges no conduct that could satisfy this high standard. -7- 1 2001) (holding that the district court properly declined to exercise supplemental 2 jurisdiction after granting defendants’ motion to dismiss federal claims). The Court 3 elects not to exercise supplemental jurisdiction over the state claims. 4 IT IS ORDERED: 5 1. 6 The County Defendants’ motion to dismiss (Doc. 164) is granted as to Count Seven. 7 2. Plaintiff’s complaint (Doc. 141) is dismissed. 8 3. All remaining motions (Docs. 147, 152, 154) are found to be moot. 9 4. The Clerk is directed to terminate this action. 10 Dated this 17th day of November, 2017. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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