Kimberly Owens v. David J. Cowan et al

NOTICE OF MOTION AND MOTION to Dismiss Case In its entirety with prejudice

C.D. Cal.July 7, 2017

2 3 4 5 6 7 8 9 10 11 12 N >- ~g 13 O:'. <"> N :::> '" 0 CD§~ 14 . "'en 0 - C'O 0 a: 7i) ·- ~ o~El() 15 ~U5~~ ~ - """ ~ (,) . mU::~~ 16 . .c c co z "' "' 00€ U) z " °'gm 17 LU ->-w a. 18 19 20 21 22 23 24 25 26 27 28 Avi Burkwitz, Esq., Bar No.: 217225 Gagik Stepanyan.._E_sg . .,_Bar No.: 296814 PETERSON · BKAD.t< ORD · BURKWITZ I 00 North First Street, Suite 300 Burbank, California 91502 Exempt From Filing Fee Government Code Section 6103 T: 818.562.5800 F: 818.562.5810 Attorneys for Defendant COUNTY OF LOS ANGELES (Erroneously sued as County of Los Angeles Child Support Services Department) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KIMBERLY OWENS TRUSTEE OF RUBY C. LEWIS LIVING TRUST Plaintiff, vs. JUDGE DA YID J. COWAN; COUNTY OF LOS ANGELES CHILD SUPPORT SERVICES DEPARTMENT; LARRY D. LEWELLYN, ESQ.; LAW OFFICES OF LARRY. D. LEWELLYN Defendants. Case No.: 2: l 7-CV-03674-FMO-(JDE) f Assigned to the Honorable: John D. Early, Courtroom 6B- 6th Floor] DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED ORDER] [Filed concurrently with (Proposed) Order & Request ;or JudiciaTNotice} D.ate: August 10, 2017 Time: 10:00 A.M. Dept: 6B- 6th Floor _____________ ___, Complaint Filed: May 16, 2017 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE AND NOTICE IS HEREBY GIVEN that on August I 0, 2017, at I 0:00 a.m. in Courtroom 6B of the United States District Court for the Central District of California, located at 411 W. Fourth St., Santa Ana, CA 92701. I DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2:17-CV-03674-FMO-(JDE) N:\files\1882-0wens (COLA)\Pleadings\Mtn to Dismiss FAC\p-Mtn to Dismiss FAC (Revised} docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 1 of 20 Page ID #:384 2 3 4 5 6 7 8 9 10 11 12 \::! ~ C> 13 "' C> a:: "' "' :::> "' C> ID :'§ ~ 14 . "' "' ~ af .~ ~ 0 ~ EID 15 u.. ...... 0 . 0~~&;1 ;?g;uo; mu:::..::.:: ...... 16 . ..c:: c:: a:> z "' "' o~~ "' C> 0) 17 a:: C> LU -I- LU Q_ 18 19 20 21 22 23 24 25 26 27 28 Defendant County of Los Angeles (erroneously sued as County of Los Angeles Child Support Services Department) (the "County") will, and hereby does, move this Court, to dismiss, with prejudice, Plaintiff Kimberly Owens, Trustee of Ruby C. Lewis Living Trust's ("Plaintiff') Complaint, with a single cause of action, against the County, pursuant to Federal Rules of Civil Procedure, Rule 12(b)(l), Federal Rules of Civil Procedure, Rule 12(b)(6) and corresponding case law. The County's Motion is brought on the following grounds: 1. Plaintiffs First Cause of Action for Violations of Due Process Rights under 42 U.S.C. § 1983 is barred by the Rooker-Feldman doctrine. 2. Plaintiffs First Cause of Action for Violations of Due Process Rights under 42 U.S.C. § 1983 fails to state facts to rise a claim above the speculative level. This Motion to Dismiss is exempted from Central District Local Rule 7-3 's meet and confer requirement because Plaintiff is appearing pro se and is not an attorney. C.D. CA. Local R. 7-3, 16-12(c). This Motion is based on this notice, the court file, the attachment memorandum of points and authorities, the County's Request for Judicial Notice, filed concurrently with this motion, and any other matter the Court may judicially notice at the time for hearing and/or oral arguments. DATED: July 7, 2017 PETERSON · BRADFORD · BURKWITZ By: Isl Gagik Stepanyan 2 Avi Burkwitz, Esq. Gagik Stepanyan, Esq. Attorneys for Defendant, COUNTY OF LOS ANGELES DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(I) AND RULE 12(B)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) N:\fi!esll 882~0wens (COLA)\Pleadings\Mtn to Dismiss FAClp~Mtn to Dismiss FAC (Revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 2 of 20 Page ID #:385 2 3 4 5 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................ l 6 II. SUMMARY OF FACTS ALLEGED ............................................................... 2 7 8 9 A. Relevant Factual Allegations Set Forth In The Third Amended Complaint ....................................................................................... 2 B. Facts Adjudicated in State Probate Proceeding ............................ .4 LEGAL STANDARD ....................................................................................... 6 THE DISTRICT COURT LACKS JURISDICTION OVER PLAINTIFF'S CLAIMS FOR RELIEF PURSUANT TO THE ROOKER-FELDMAN DOCTRINE ...................................................................................................... 7 PLAINTIFF'S ONLY CLAIM FOR RELIEF, PURSUANT TO 42 U.S.C. §1983 FAILS TO STATE A CLAIM AGAINST THE COUNTY ............... 10 A. Procedural Due Process ........................................................................ l 0 B. Substantive Due Process ...................................................................... 11 LEA VE TO AMEND IS FUTILE .................................................................. 12 CONCLUSION ............................................................................................... 13 16 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2:17-CV-03674-FMO-(JDE) n:\flles\1882-owens (cola)\pleadingslmtn to dismiss faclp-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 3 of 20 Page ID #:386 /::! ~ C> "' C> t>'. O? N "' "' C> m"§~. en en o..., "'8 gs ~ "E ~ ~U5~~ ~ (;) rn l.q ·= u co co LL. .:,,:;- ..... • ..c:: c: 00 z i5 _gj Oz~ U) C> co "' C> w- I-w Q_ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases AE ex rel. Hernandez v. County of Tulare, 66 F Jd 631 (9th Cir. 2012) ................... 7 Allen v. City of Beverly Hills, 911 F. 2d 367 (9th Cir. 1990) .................................. 12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................... 7 Assoc. of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000) ................ 6 Bartholomew V. Triay, No. 16-cv-05361-WHO (N.D. Cal. Oct. 3, 2016) ................ 9 Bell Atlantic Corp v. Twombly, 50 U.S. 544 (2007) .................................................. 7 Brittain v. Hansen, 451 F Jd 982 (9th Cir. 2006) ..................................................... 11 Carmona v. Carmona, 603 F.3d I 041 (9th Cir. 2010) ................................................ 7 County of Sacramento v. Lewis, 523 U.S. 833 (1998) ............................................. 12 Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005) ............................................................. 8 Dubinkav. Judges of Sup.Ct., 23 11FJd218 (9th Cir. 1994) .................................. 8 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ................. 8, 9 Grondal v. United States, 2012 U.S. Dist. LEXIS 19398 (E.D. Wash. Feb. 16, 2012) ................................................................................................................................. 6 Harris v. County of Riverside, 904 F.2d (9th Cir. 1990) .......................................... I 0 Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014) ........................................................ 7 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) N:\fi!es\1882·0wens (COLA)\Pleadings\Mtn to Dismiss FAC\p-Mtn to Dismiss FAC (Revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 4 of 20 Page ID #:387 , 1 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ........................... 6 2 3 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (9th Cir. 1994) ............. 7 4 Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007) ................................................ 8,9 5 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) ........................................ 7 6 7 Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) ............................................................... 6 8 9 Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998) ................................... 11 10 Pellegrini v. Fresno County, No. 1: 16-cv-O 1292 LJO BAM (E.D. Cal. Apr. 6, 2017) 11 ................................................................................................................................. 9 12 Snell v. Cleveland, Inc., 316 F.3d 822 (9th Cir. 2002) ............................................... 6 13 14 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ............................. 7 16 Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) ........................ 11 17 Statutes 18 42 u.s.c. § 1983 ......................................................................................................... 2 19 20 C.D. CA. Local R. 7-3, 16-12(c) ................................................................................. 2 21 22 F.R.C.P. 12(b)(l) ................................................................................................... 2,6,7 23 F.R.C.P. 12(b)(6), ..................................................................................................... 2,7 24 25 26 27 ii 2811-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~1 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) N:\files\1882·0wens (COLA)\Pleadings\Mtn to Dismiss FAC\p-Mtn to Dismiss FAC (Revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 5 of 20 Page ID #:388 N ,__ ~g Q'. MN :::> ""0 co ."!;; l.O " -· en en O~ro8 gj ~ .E ffi ~U5~~ ~ - "'"' ~ (,) cci cou..~..- • ..c:: c: co zt"' 00€ en z " Q'. g "' w-,__ w a. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action is brought before this court to dispute a state court ruling. On March 6, 2017, the County appeared in Superior Court in Los Angeles County ("Superior Court"), in the matter of Estate of Ruby C. Lewis, Case No.: BP108183, and filed an ex parte application to protect its interest in a lien/levy regarding the child support obligations owed by Chappelle Dubose, a beneficiary of the estate. (See Exhibit A, the County's Ex Parte Application, p. 3-4). The County sought relief ex parte because Plaintiff, as an executrix of the Estate of Ruby C. Lewis, had elected to sell the two properties in the Estate of Ruby C. Lewis in early February 2017 without court approval even though Plaintiff was appointed executrix with no power to sell or exchange real property or engage in other such transactions without court supervision and approval. (See Exhibit B, Order for Probate; Exhibit C, Letters Testamentary). Having heard and considered the County's application, the Superior Court, on March 6, 2017, ordered the following: (1) that the Plaintiff, as the executrix in that matter, be stayed from issuing all distributions and/or disbursements from the estate and/or trust pending an accounting and court approval; (2) if any distributions or disbursements have been issued but the checks are outstanding, that Plaintiff be ordered to stop payment on each outstanding item; (3) If any distributions or disbursements have been issued and the checks have been cashed by recipients, that Plaintiff be ordered to contact the recipients, retrieve the funds, and return the monies to the estate and/or trust account forthwith; and (4) that the Plaintiff be immediately suspended as executrix of estate. (See Exhibit D, Order on County's Ex Parte Application). Upset over the Superior Court's ruling, Plaintiff has filed this matter. However, Plaintiffs speculative and conclusory pied Complaint is an impermissible attack on a state court judgment in violation of the Rooker-Feldman doctrine. Therefore, the 1 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) n:\ftles\1882-owens (cola)\pleadings\mtn lo dismiss fac\p-mtn !o dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 6 of 20 Page ID #:389 ::::i :!: 0 "'0 er~ N :::>.,a O'.l :!;;;: li.l ,,_ • U) "' a - ro a a:: ID ·- ffl o~E ~us~~ ~-"'"' .~ () oO Ql LL. ,.::.:.- ....... . ..c c:: 00 z"'"' 00€ "'z "' "' 0 "' UJ $' f- UJ a_ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Court must dismiss Plaintiff's FAC, in its entirety, pursuant to under and Federal Rule of Civil Procedure, Rule 12(b)(l) and Federal Rule of Civil Procedure, Rule 12(b)(6). II. SUMMARY OF FACTS ALLEGED The First Amended Complaint ("F AC") raises one (I) cause of action against the County, that of due process violations pursuant to 42 U.S.C. § 1983. Plaintiff does not specify if she is raising a procedural due process violation or substantive due process violation. For purposes of clarity, the County will set for the relevant factual allegations from Plaintiffs' Complaint followed by the facts ruled on by the Los Angeles County Superior Court. A. Relevant Factual Allegations Set Forth In The Third Amended Complaint. Plaintiff's claims of constitutional violations are based on the following allegations (mostly untrue) in the First Amended Complaint (F AC): 1. On June 8, 2004, Plaintiffs Grandmother, Ruby C. Lewis, established the Ruby C. Lewis Living Trust. (See DKT #18, FAC iJl4). 2. On June 8, 2004, Plaintiffs Grandmother, Ruby C. Lewis attested to the Trust. (See DKT #21, FAC iJ14). 3. The Ruby C. Lewis Living Trust contains a Pour Over Will. (See DKT 20 #21,FACiJ3-4). 21 4. The Pour Over Will states: "I [Ruby C. Lewis] give the entire residue of 22 my estate to the trustee then in office under this trust designated as the Ruby C. Lewis 23 Living Trust. (See DKT #18, FAC iJ23). 24 5. On September 20, 2007, Plaintiff became the Trustee of the Ruby C. 25 Lewis Living Trust. (See DKT # 18, F AC iJ2). 26 6. Since the death of the Settlor, Ruby C. Lewis, was on September 20, 27 2007, the Ruby C. Lewis Living Trust is valid until 2028, as a proposed revoke or 28 2 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(I) AND RULE 12(B)(6) Case No.: 2: I 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)\pleadingslmtn to dismiss fac\p-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 7 of 20 Page ID #:390 1 2 3 4 5 6 7 8 9 10 11 12 N >-- ~8 13 et: MN => .ru GS Cl) ·:s ..- 14 . z5jg ozs ~ 8 CD 17 w~ >-- UJ a. 18 19 20 21 22 23 24 25 26 27 28 termination proceeding has never occurred. (See DKT # 18, F AC iJ 18). 7. The County used the Order for Probate, filed in Superior Court in 2008, to hypothecate Plaintiff's property to collect on a child support debt owed by one of the beneficiaries of the Ruby C. Lewis Living Trust, Chapelle Dubose. (See DKT #18, FAC iJ4). 8. The Plaintiffs Trust Properties, however, are not under the custody of the probate court because said properties are not part of the Estate of Ruby C. Lewis. (Id). 9. The Ruby C. Lewis Living Trust contains a spendthrift provision that provided the displacement of such a lien. (See DKT # 18, F AC iJ41 ). 10. In January 2008, Plaintiff signed an application for probate. (See DKT #18, FAC iJ27). 11. In 2015, all of the family members of Ruby C. Lewis came to an agreement to sell the two Trust properties of Ruby C. Lewis Living Trust. (See DKT # 18, F AC iJ29). 12. On or around November 10, 2016, the County personally served Plaintiff with a lien and levy on the Estate Ruby C. Lewis Living Trust as result of the child support obligations to the County from a beneficiary of the Estate Ruby C. Lewis, Chappelle Dubose (Mr. Dubose"). (See DKT #18, FAC iJ38). 13. Mr. Dubose's beneficial interest is subject of the Ruby C. Lewis Living Trust's spendthrift provision, and, as a result, "he may not transfer an interest in violation of the Ruby C. Lewis Living Trust's valid spendthrift provision." (See DKT #18, FAC iJ41). 14. In February 2017, Plaintiff entered into two Trust Purchase Agreements to sell two Trust properties and sold the two Trust properties. (Id.). 15. Defendants went on a crusade to try to undue the sale of the Plaintiffs Trust properties. (See DKT # 18, F AC iJ46). 3 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(J) AND RULE 12(B)(6) Case No.: 2: I 7-CV-03674-FMO-(JDE) n:\nles\1882-owens (cola)lpleadings\mtn to dismiss fac\p-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 8 of 20 Page ID #:391 1 2 3 4 5 6 7 8 9 10 11 12 N ,_ ~8 13 a:'."'"' :::> "'0 ca:'§~ 14 . (/) "' a - ro o a:: ~ ·;:: :i5 ~-=.E~ 15 O~'f6fg ;::; ~u . ·- "' ca u.. ..)>t!- ....- 16 . ..c: c:: a:> z t= "' 0 0 -e (/) z " a:'. 8 aJ 17 w~ ,_ w o._ 18 19 20 21 22 23 24 25 26 27 28 16. The County filed "petitions" "suspending Plaintiffs powers," "demanding an accounting of the funds, etc." even though Plaintiff Jacked standing to file a petition over the Plaintiffs Trust assets. (See DKT # 18, F AC if45). 17. At an unspecified time, the County contacted the "Title company" (not named or identifiable) to inquire about the terms of the Trust Purchase Agreement. As a result of the County's actions, the Title company sent letters to both buyers informing said buyers that the title company is prepared to defend the buyers in any legal action regarding the issue of title insurance. (See DKT #18, FAC, 46). 18. The County contacted the Bond company, and, as a result, the Bond company sent an infringing and threatening letter to the Plaintiff. (See DKT #18, FAC if48). 19. Plaintiff's FAC attached an exhibit, a Jetter from the surety company (Surety Group). The letter stated the following: "we received notice of the Los Angeles County Department of Child Support Services' petition to remove you and compel an account of estate assets. We are also aware that you were suspended as executor on March 6, 2017." (See DKT #18, FAC, Exhibit 0). B. Facts Adjudicated in State Probate Proceeding The following facts have been adjudicated in superior court, in a matter of Estate of Ruby C. Lewis, Case No.: BP108183, which is still active. The County is asking that the court take judicial notice, filed concurrently with this motion, of the following: 1. On March 4, 2008, in the matter of Estate of Ruby C. Lewis, Plaintiff filed an Order for Probate. (See Exhibit A, Order for Probate). 2. On March 5, 2008, in the matter of Estate of Ruby C. Lewis, Plaintiff filed Letters Testamentary. (See Exhibit B, Letters Testamentary). 3. Pursuant to the court's grant of the Order of Probate and Letters Testamentary, the court granted Plaintiff limited authority to administer the Estate of 4 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) n:\filesl 1882-owens (cola)lpleadings\mtn to dismiss faclp-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 9 of 20 Page ID #:392 1 2 3 4 5 6 7 8 9 10 11 12 N !::: s: C> 13 "' C> "'"""" :::> Q) C> co :!:::: tr.I 14 " -• Cl) Cf> Cl ~rn° a:: 1i) ·- g o~El.O 15 ~C/5~~ C2 - "' ~(.) -·- "" COLL~-..- 16 . .c: c:: 00 z 15 jg Oz 5 Cl) C> co 17 "' C> w->-w a. 18 19 20 21 22 23 24 25 26 27 28 Ruby C. Lewis as an Executrix, and not, as the Trustee of Ruby C. Lewis Living Trust. (See Exhibit A and B). 4. In the matter of Estate of Ruby C. Lewis, the County was an interested party with respect to the interest it held against beneficiary of estate, Chappelle Dubose ("Mr. Dubose"), under the matter of Arnold v. Dubose, Case No.: BF022257. Mr. Dubose owed the County child support obligations. (See, Exhibit C, the County's Ex Parte Application, p. 3-4). 5. On or around November I 0, 2016, the County personally served Plaintiff with a Notice ofLien, Notice of Levy, and Writ ofExecution in regard to the County's lien/writ against the Estate of Ruby C. Lewis in the amount of $55,246.24 as of November 8, 2016. (Id.). 6. On February 28, 2017, the County discovered that Plaintiff had sold the two properties of the estate on February 3, 2017, and February 7, 2017, without court approval. 7. In the matter of Estate of Ruby C. Lewis, and on or around March 6, 2017, The County's filed an ex parte application to protect its interest in the underlying estate. (See, Exhibit C). 8. In the matter of Estate of Ruby C. Lewis, having reviewed of the County's moving papers and oral arguments, the Court granted the application and ordered the following: (I) that the Plaintiff, as the executrix in that matter, be stayed from issuing all distributions and/or disbursements from the estate and/or trust pending an accounting and court approval; (2) if any distributions or disbursements have been issued but the checks are outstanding, that Plaintiff be ordered to stop payment on each outstanding item; (3) if any distributions or disbursements have been issued and the checks have been cashed by recipients, that Plaintiff be ordered to contact the recipients, retrieve the funds, and return the monies to the estate and/or trust account forthwith; and ( 4) that the Plaintiff be immediately suspended as 5 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: 17-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)lpleadingslmtn to dismiss faclp-mtn le dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 10 of 20 Page ID #:393 executrix of estate. (See Exhibit D, Order on the County's Ex Parte Application). 2 9. The Matter of Estate of Ruby Lewis is currently active. (See Exhibit E, 3 Printout of Docket of Estate of Ruby C. Lewis). 4 III. LEGAL STANDARD 5 Plaintiff is unable to establish this Court's jurisdiction over this case and unable 6 to advance a claim upon which relief can be granted. As such, Plaintiff's Complaint 7 must be dismissed, with prejudice. 8 Federal Rule of Civil Procedure, Rule 12(b)(l) provides for dismissal of an 9 action for "lack of subject matter jurisdiction." See Fed. R. Civ. P. 12(b)(l). A Rule 10 12(b )( 1) motion can challenge the sufficiency of the pleadings to establish jurisdiction 11 (facial attack), or a lack of any factual support for subject matter jurisdiction despite 12 the pleading's sufficiency (factual attack). See Grondal v. United States, 2012 U.S. 13 Dist. LEXIS 19398, at *11-13 (E.D. Wash. Feb. 16, 2012) (Quackenbush, J.). For a 14 facial attack, all allegations are accepted as true. Id. For a factual attack, evidence 15 outside the pleadings needed to resolve factual disputes as to jurisdiction may be 16 considered. See Assoc. of Am. Med. Coll. v. United States, 217 F.3d 770, 778 (9th 17 Cir. 2000). 18 The issue of subject matter jurisdiction is always before the Court. See 19 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal 20 courts are courts of limited jurisdiction. They possess only that power authorized by 21 Constitution and statute."); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) 22 ("[A] court may raise the question of subject matter jurisdiction, sua sponte, at any 23 time during the pendency of the action.") Accordingly, whether claims are barred 24 under the Rooker-Feldman doctrine is a question of the Court's subject matter 25 jurisdiction properly brought pursuant to Rule 12(b)(l). See Fed.R.Civ.P., Rule 26 12(b)(l ); Noel v. Hall, 341F.3d1148, 1154 (9th Cir. 2003). Plaintiffs have the burden 27 of establishing jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 6 28 11-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~1 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(8)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)l!)eadingslmtn to dismiss fac\p-mtn to cf1smiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 11 of 20 Page ID #:394 1 2 3 4 5 6 7 8 9 10 11 12 N f-- ;;:;: 0 13 "'0 Q'. M N :::> " 0 co'§~ 14 • Cl) en O _. ro 8 a: * ·- "' o._Eln 15 u..-J2N 0 ~ 'ffi r:g iii !" u . ·- "' COLL~...-- 16 • ..c:: c:::: co z" "' 0 0 -e (/) z " erg"' 17 LU~ f-- ~ 18 19 20 21 22 23 24 25 26 27 28 375, 377 (1994). Federal Rule of Civil Procedure, Rule l 2(b )( 6), in tum, provides for dismissal of an action for failure to state a claim for which relief can be granted may be made by motion. To survive a motion to dismiss, the factional allegations in a complaint "must be enough to raise a right of relief above the speculative level." Bell Atlantic Com v. Twombly 50 U.S. 544, 555 (2007). The court is "not required to accept as true conclusory, unwarranted deductions of fact or unreasonable inferences." Sprewell v. Golden State Warriors 266 F.3d 979, 988 (9th Cir. 2001). A Plaintiff may not plead the bare elements of his cause of action, affix a label to it, and expect his complaint to survive a motion to dismiss. See Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). The complaint must state sufficient facts that show more than a "sheer possibility" that the defendant acted unlawfully. See Id. 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 Service, 572 F.3d 962, 969 (9th Cir. 2009). The requirements of Twombly and Iqbal, that facts be pied to demonstrate plausibility, apply to Monell claims. See Jackson v. Barnes, 749 F.3d 755, 763-64 (9th Cir. 2014), see also AE ex rel. Hernandez v. County of Tulare, 66 F.3d 631, 637 (9th Cir. 2012). IV. THE DISTRICT COURT LACKS JURISDICTION OVER PLAINTIFF'S CLAIMS FOR RELIEF PURSUANT TO THE ROOKER-FELDMAN DOCTRINE Federal Rule of Civil Procedure, Rule 12(b)(l) allows dismissal for "lack of jurisdiction over the subject matter" of claims asserted in the Complaint under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine "stands for the relatively straightforward principle that federal district courts do not have jurisdiction to hear de facto appeals from state court judgments." Carmona v. Carmona, 603 F.3d 1041, 1050-51 (9th Cir. 2010); Dubinka v. Judges of Sup.Ct., 23 11 F .3d 218, 221 (9th 7 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(I) AND RULE 12(B)(6) Case No.: 2: 17-CV-03674-FMO-(JDE) n:\fllesl 1882-owens {cola)\pleadingslmtn !o dismiss faclp-mtn to dismiss lac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 12 of 20 Page ID #:395 r:: ~8 0:: MN :::> .,o co~ lO :> - • Cl) "' ~ 1if .~ ~ o ~ E io ~us~~ ~-"'"' ~ <.> . coiL..:.£~ . ..c c::: co z t:"' 0 0 -e Cl) z :> "' 0 al w S? .... w Cl. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cir.1994). Under the Rooker-Feldman doctrine, a district court is precluded from hearing "cases brought by state-court losers complaining of injuries caused by state- court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Com. v. Saudi Basic Indus., 16 Corp., 544 U.S. 280, 284 (2005). "[T]he Rooker-Feldman doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in 'which a party losing in state court' seeks what in substance would be appellate review of the state judgment in a United States District Court, based on the losing party's claim that the state judgment itself violates the loser's federal rights."' Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005). Here, Plaintiffs first, and only, claim for relief consist of nothing more than an attack on the credibility and/or sufficiency of a California Superior Court's order to grant the County's ex parte application filed to protect its lien/levy, attacking the legal reasoning and intent behind the filing on the part of the County. (See Exhibit C). In Mann v. Boatright, a Tenth Circuit United States Court of Appeals, by applying the reasoning of the Supreme Court ruling in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., established the standard that a pro se litigant, similar to the Plaintiffs position in the matter at hand, cannot obtain a do-over in federal court against the judges and interested persons in a state court probate proceeding. "[H]aving lost in probate court, [the petitioner] cannot file a federal complaint seeking review and reversal of the unfavorable judgment. Even ifthe probate court's decision was wrong, that does not make its judgment void, but merely leaves it 'open to reversal or modification in an appropriate and timely appellate proceeding' .... [petitioner's] claims against the individual defendants assert injuries based on the probate court's judgments and, for her to prevail, would require the district court to review and reject those judgments. As such, her claims are inextricably intertwined with the probate court judgments and are therefore barred by the Rooker-Feldman 8 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(8)(1) AND RULE 12(8)(6) Case No.: 2: I 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)lp!eadings\mtn to dismiss fac\p-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 13 of 20 Page ID #:396 N !::: ~g 0:: <""> N :::> '"'' ro :'§ ~ . "' "' O ~ ro o °'*·-g ~.b ~U"? Cl~~~ ~ ~u . ·- 00 a::i u.. ~~ • ..c: c: a) z 5"' Oz~ "' 0 "' a:: UJ -I- UJ Q_ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 doctrine." Mann v. Boatright, 477 F.3d 1140, 1146-1147 (10th Cir .2007), (quoting Exxon Mobil Com. v. Saudi Basic Indus. Com., 544 U.S. 280, 284 (2005)). Since Mann v. Boatright, the Ninth Circuit has followed suit and held that a federal review of state court probate decision is precisely the kind of matter that the Rooker-Feldman doctrine was designed to estop. See, Bartholomew V. Triay, No. 16-cv-05361-WHO (N.D. Cal. Oct. 3, 2016). Observing that "because all of plaintiffs [due process] claims are based upon the actions and rulings of [Probate] Judge Freedman, they are barred as a matter oflaw by the Rooker-Feldman doctrine." Similarly, in Pellegrini v. Fresno County, the county dismissed the plaintiffs alleged general violations of due process due under the Rooker-Feldman doctrine because none of her claims were pied distinctly as causes of action against particular defendants, but rather, as an amalgamation of the various reasons why the defendants lacked jurisdiction over plaintiffs trust, made incorrect legal determinations, and issued a judgment that was void due to fraud on the court's ruling in regard to trust administration/accounting. Pellegrini v. Fresno County, No. 1: 16-cv-01292 LJO BAM (E.D. Cal. Apr. 6, 2017). The matter at hand is no different than the cases mentioned above. Plaintiff is essentially seeking relief from a state probate proceeding. Plaintiff is illogically concluding that the County violated her alleged due process rights by: ( 1) placing a lien on the Estate of Ruby C. Lewis even though there is a spendthrift provision in a trust that has no bearing in the Estate of Ruby C. Lewis; and, (2) seeking, and obtaining an order that granted, and obtain an order granting, the suspension of Plaintiff as executrix of the Estate of Ruby C. Lewis and the stay of all distributions of the Estate of Ruby C. Lewis until an accounting is completed with court approval. (See FAC at iii! 56-61.) However, those matters were already adjudicated following the state court's Order on County's Ex Parte Application. (See Exhibit C). If Plaintiff wishes to bring her objections to another judicial body's attention, 9 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(I) AND RULE 12(B)(6) Case No.: 2: 17-CV-03674-FMO-(JDE) n:lfiles\ 1882.owens (cola)\pleadingslm!n to dismiss faclp-mln tc dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 14 of 20 Page ID #:397 N f- ~8 0::'° N :::> '" 0 cc ;!::::: lt) ~ -. (/) "' Cl..:rn8 o:::ru·2co E2-=..Q~ 0 (./) = -- ~g 0:: M N :::> "'0 CD:<.:::;: LO " -. "' "' o hroo 0::: Ci)·- g o~§"' ~U)::=~ i'2 - "' "' .~ (.) cci CO LL .xh ......- . .c c: 0() z t'. "' 00€ "' z " a: g CJl w->--w 0. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Cowan did not rule in her favor. (See DKT # 18, F AC if 55). As such, Plaintiff cannot claim, and has not claimed any facts to support, a procedural due process violation against the County. B. Substantive Due Process To state a claim for a violation of substantive due process, a plaintiff "must show both a deprivation of her liberty and conscience shocking behavior by the government." Brittain v. Hansen, 451F.3d982, 991-92 (9th Cir. 2006). As a threshold matter, in order to establish a substantive due process violation, claim a plaintiff must show a government deprivation of life, liberty, or property. See Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.1998). This is because "there is no general liberty interest in being free from capricious government action." Id. at 949. Here, Plaintiffs alleges that the County "launch[ed] a crusade against Plaintiff' and "wanted Plaintiff to breach her fiduciary duty." (See DKT #18, FAC if46). To this end, and as stated above, Plaintiff alleges the County accomplished such a violation by: (I) placing a lien on the Estate of Ruby C. Lewis even though there is a spendthrift provision in a trust that has no bearing in the Estate of Ruby C. Lewis; and (2) seeking, and obtaining an order that granted, the suspension of Plaintiff as executrix of the Estate of Ruby C. Lewis and the stay of all distributions of the Estate of Ruby C. Lewis until an accounting is completed with court approval. (See Exhibit C and Exhibit D). However, Plaintiff does not state which liberty she was deprived by the County. Since the county had no determination as to what property was included in the Estate of Ruby C. Lewis (this issue was determined by the Superior Court prior to the County's involvement in matter PB 108183), it appears that Plaintiff is alleging that the County deprived her of the liberty of being the executor of the Estate of Ruby C. 27 Lewis. (See Exhibit C and D). 28 11 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: I 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)\pleadingslmtn to dismiss faclp-mtn to dismiss tac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 16 of 20 Page ID #:399 N f- ~8 0:: M N ffi :m g "~ "" "' Cl....:-roO a::: Q) ·- g fi:~§U? oCl)::!E~ ~ (;) rn lQ ·= u co cou..;,,£..- . ..ccCO z -c: "' 0 0 -e "' z " "' 0 co w~ f-w a._ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Assuming that is the case, Plaintiff cannot assert such a liberty violation because (1) Plaintiff is suing as Trustee of Ruby C. Lewis Living Trust, and Trustee of Ruby C. Lewis Living Trust the was not suspended/removed as the executrix of the Estate of Ruby C. Lewis; and (2) the County did not suspend Plaintiff as the executrix of the estate, the state probate court did pursuant to Order on County's Ex Parte Application. (See Exhibit D). Even if Plaintiff was deprived of the alleged liberty, substantive due process only protects individuals from arbitrary deprivation of their liberty by government, and as such, Plaintiff must allege conscience shocking action on the party of the County. See County of Sacramento v. Lewis, 523 U.S. 833, 845-49 (1998). "[O]nly the most egregious official conduct can be said to be arbitrary in a constitutional sense." Id. Such conduct can be shown by "conduct intended to injure in some way unjustifiable by any government interest." Id. at 849. Here, Plaintiffs alleges that the County "launch[ ed] a crusade against Plaintiff' and "wanted Plaintiff to breach her fiduciary duty." (See DKT # 18, F AC iJ46). These conclusory statements her only basis for alleging a due process violation against the County. For the County only engaged in two actions: (1) it properly served Plaintiff with a lien on the Estate of Ruby C. Lewis, by executing personal service, to protect its rightful interest; and (2) it filed an ex parte application, with proper service, which requested that the court hear and pass judgement on the Plaintiffs actions as the executrix of the Estate of Ruby C. Lewis. (See Exhibit C). Issuing a legal lien with proper service and filing an ex parte application to protect that lien is far from a "crusade" or a "conscience shocking action." To conclude otherwise is not only absurd but unsupported by the alleged facts of Plaintiffs FAC. VI. LEA VE TO AMEND IS FUTILE Leave to amend a Complaint is not an abuse of discretion where it is clear that amendment will prove futile. See Allen v. City of Beverly Hills, 911 F. 2d 367, 373 12 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(I) AND RULE 12(B)(6) Case No.: 2: 17-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)\pleadings\mtn to dism·1ss fac\p-mtn to dismiss fac {rev"1sed).dOC){ Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 17 of 20 Page ID #:400 1 2 3 4 5 6 7 8 9 10 11 12 N ..... ~8 13 0:: M N :::> "'0 OJ~ l('} 14 " -• Cf> en 0.......-rno a::: Q) ·- g o~Ei.n 15 LL ..... 0 . Q (I) :!: ~ (2 (j) rn ll1 .!:::Uc::o al LL .:i.t ~ 16 . ..c c 00 z t= "' 00€ Cf) z " "' 8 "' 17 w-..... w 0.. 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 1990). The County respectfully assert that it is futile to allow Plaintiffs to amend any claim that is barred by Rooker-Feldman doctrine. Accordingly, the first, and only, claim asserted against the County for relief should be dismissed with prejudice. VII. CONCLUSION Based on the foregoing, the Defendant respectfully requests that this Court grant Defendant's motion in its entirety and dismiss, with prejudice, this matter against the County of Los Angeles. DATED: July7,2017 PETERSON · BRADFORD · BURK.WITZ By: 13 _:..::::._~c=c=.=.==..:.=:.~~~~~---J Avi Burkwitz, Esq. Gagik Stepanyan, Esq. Attorneys for Defendant, COUNTY OF LOS ANGELES DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)\p!eadingslmtn to 01smiss faclp-mtn le· 01smiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32 Filed 07/07/17 Page 18 of 20 Page ID #:401 1 2 3 PROOF OF SERVICE ST ATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over 4 the age of 18 and not a party to the within action; my business address is 100 North First Street, Suite 300, Buroank, California 91502. 5 6 7 8 On July , 2017 ,) served the foregoing document described as: [PROPOSED] ORD.r.,R ON DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)(l) AND 12(B)(6) on interested parties in this action by placing a true and correct copy thereof 9 enclosed in a sealed envelope addressed as follows: 10 11 !BJ 12 13 14 15 16 17 18 19 !BJ 20 21 22 23 24 25 26 27 28 SEE ATTACHED MAILING LIST BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed document(s) with the Clerk of the Court by using the CM/ECF system. Participants in this case who are registered CM/ECF users will be served by the CM/ECF system. Participants in this case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. BY MAIL: I deposited such envelope in the mail at Burbank, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of co11ection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day witli postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation unly Child Support Services Department . s ("County"), located at 20221 South Hamilton Avenue, Torrance, California 90502. 6 2. The County is an interested party with respect to the distribution of this 7 estate, as it asserts a claim against the interest of beneficiary Chappelle Dubose s ("beneficiary/obliger"). The County is a local child support agency who is mandated by 9 · statutory to enforce child support obligations. Beneficiary/obligor owes substantial child 10 support arrears, and the agency is seeking to attach his distributions from this estate 11 and apply the funds toward his child support debt. 12 3. The County asks the court to take judicial notice of the Order for Probate 13 filed on March 4, 2008 and the Letters Testamentary filed on March 5, 2008. The court 14 granted the executrix, Kimberly Owens, limited authority to administer the estate~ Both · 1 s documents expressly provided that the executrix had no power to sell or exchange real 16 property or engage In other such transactions without court supervision. 17 4. I was personally present at the November 16, 2016 hearing in this matter. 1s The.executrix appeared, along with one other beneficiary. Attorney Larry Lewellyn 19 appeared via courtcall. The executrix told the court that there were prospective buyers 20 for the two properties at issue in this action, and that the buyers might back out If the 21 sales did not occur soon. The executrix insisted that she did not need court approval to 22 complete the sales, because shewould be complying with the testator's wishes and all 23 the beneficiaries had the poww to resolve the situation without the court's intervention. (£24 There was a prolonged exchange on the record, where the court informed the executrix ii -'25 more than once that she could not sell the properties without prior court approval. ', c2e 5. At the November 16, 2016 hearing, the County personally served the ' 7'21 executrix with the County's Notice of Lien, Notice of Levy, and. Writ of Execution and ' . 1J8 supporting documents, related to the child support debt owed by beneficiary/obligor COUN"fYS EX PARTE APPLICATION Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 4 of 20 Page ID #:407 1 Chappelle Dubose. Attached hereto as Exhibit 1 is a copy of the minute order from Iha 2 proceeding, which reflects that the papers were delivered to the executrix. The 3 County's lien/writ was for $55,246.24 as of November 8, 2016. 4 6. On February 23, 2017, there was a hearing at the Central Civil West s courthouse in LASC Case No. BF022257 (Arnold v. Dubose). The respondent on that 6 family law case, Chappelle Dubose, is a beneficiary of this estate. and the County is 7 seeking to attach his beneficial interest to apply toward his substantial child support s arrears; At the hearing, Mr. Dubose made several cryptic comments ·about not being to .9 discuss these probate proceedings. 10 7. On February 28, 2017. I looked on the Redfin website for an update on th 11 status of the real property at issue in this estate case. There were notations that the 12 Brynhurst property was sold on February 7, 2017 for $590,000 and the Edgehill proper! ' ' . 13 was sold for $580,000 on February 3, 2017. Attached hereto as Exhibit 2, collectively, 14 are the first pages of those printouts. 15 8. I then went into the Los Angeles County Recorder's database to find out if 16 indeed the properties had been sold. Attached hereto as Exhibit 3, collectively, are the 17 printouts from the database, verifying that the sales had indeed occurred. The County 1 s will provide certified copies of these documents, if necessary, for the court to review at 19 the next hearing. 20 9. The properties were sold at the beginning of last month. Even though the 21 executrix is clearly aware of the County's interest in this case, she has not contacted th 22 agency to address the wriVlevy. 23 10. The County is deeply concerned that the executrix has blatantly violated. (".:'24 1_,_~5 court orders and proceeded with the sale of the properties. She has manifested no Intention to comply with either the court's orders or the County's writ. Without drastic and singular court intervention, she can arbitrarily conceal, divert or dissipate the estate assets in the manner that she wishes. Irreparable harm could be done to the County's ·· .. '• .. ·· .. J COUNTY$ EX PAR TE APPLICATION I I ., •.• ' I il f ' ' I • Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 5 of 20 Page ID #:408 effort to collect the beneficiary/obliger's child support debt if the court does not step in 2 and take immediate control of this situation. J 11. Therefore, the County is requesting that the court stay all distributions and 4 disbursements from the estate and trust accounts, order the executrix to stop payment 5 on any uncashed distributions and disbursements, and order her to recover all 6 distributions and disbur~ements that have already been issued. 7 12. The County is well aware that this is an estate case, not a trust case. But 8 the executrix and beneficlary/obligor, both in pro per, continue to jnsist that this is a trust 9 matter. The County suspects that this is how the sale transactions were accomplished, 10 .since the executrix is also successor trustee and that is how she signed the conveyance 11 documents. The court has decreed that all property should be distributed through the 12 estate, not through the trust. Given the continued intransigence of the executrix and 13 beneficiary/obligor, and willful misconduct of the executrix, the County asks for these 14 orders to encompass both the estate. and trust accounts. 1s 13. The County has also prepared a petition fo·r removal of the executrix and 16 suspension of her powers. The County is asking the court to Issue an order shortening 11 time for hearing on that peUtion. 18 19 Dated: 20 ~ By: . 21 Staff Attorney 22 23 (;_24 (; i ·25 ., <::?6 (~1 ' !,?,8 (::::.i ,..., "<· •• ; COUNTY$ EX PARTE APPLICATION Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 6 of 20 Page ID #:409 (:;:\ ' l_.;.J '·., . ~-..!. i ~·T; '. "·· t··.J . ~) ,.... ' ''".J . 1 . ' • • . EXHIBIT 1 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 7 of 20 Page ID #:410 ,CPaqe 1 of 1) BP108183 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGEi.ES Probate Division Stanley Mosk Courthouse Department ST79 In re: LEWIS, RUBY C. • DECEDENT November 10, 2016 8:30AM Honorable David J. Cowan, Judge p Erick Amaya, Judicial Assistant Trena Arismendez, Court Services Assistant Ronald Kim (1112299), Court Reporter Joseph l Emmert, Deputy Sheriff NATURE OF PROCEEDINGS: Order to Show Cause Hearing The following parties arc presellt for tbe aforemclltioned proceeding: Ruby Dubose, Objector Larry Lewellyn, Attorney Tn Pro Per (via CourtCall) Kimberly Owens, Petitioner · Roye Randall, Lo~ Angeles County Child Support Seivi~ The matter is ca lied for hearing. The Court's Order to Show Cause Hearing is contioued to Tuesday, May 16, 2017, ar 8:30 AM in this department. Ms. Randall states on the rec.ord her service of a Notice of Levy, Writ of Execution and other related docwnent~ uoder·case number BF022257, matter of Arnold vs. Dubose. · Mr. Lewellyn shall file a Request for S_pecial Notice. '·· ··-. Minute Order P•ge 1of1 Doell l Page• l ~ Doc: ID "' 167033,481 - Doc Type • h.i.n1.1tc otd~r Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 8 of 20 Page ID #:411 •1) iiJ . ~ . . . ·. :~ EXHIBIT 2 1-) c I--' · .... ! Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 9 of 20 Page ID #:412 1;r:i t:..! .... ;.71 ~ (;Ji i-•• ;-..._i 1:;) ,.,.. ·:··I 5345 Brynhurst Ave, Los Anr•~· (City), CA 900431MLS#16-128024 Pagelofl3 REDFIN ·--·----------••·-----·'---• .. •••••••• .. •--··.,-;~·--------·-·-••--. --·--·--,..,.,_,_, _____ w ___ ,,.,,,_,,,,~ 5345 Brynhurst Ave Les Angeles (Ciiy), CA 90043 StatlJS', Closed .; $587,679 $590,000 4 2 1,950 Sq. Ft. Redfin Estimate Sokl Feb 7, 2017 Beds Ba1hs 5301 I Sq. Ft. Built: t92J Is This :V our Home?· I'm the Owner https:l/www.redfin .corrl/CA/Los•Angeles/534 5-Brynhurst· A ve-9004 3/home/6865 221 212812017. Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 10 of 20 Page ID #:413 3015 Edgehill Dr, Los Angeles rCity), CA 900181MLS#16·1277681 F~.;zse_!~;~fmoocument Info l~;;;;f LQW Sit~!. bl.!..~ BtN.~~~ Li:!!'.P. · S ROi.:.11 L.tt ;?!otA .. Rit!!,~ . l .. RECORDING REQUESTED BY: F'ldelily Nalional Title Company ANO WHEN RECORDED MAIL TO: Mr. and Mrs. Sung Hwan Kim 1311 Acacia Avenue Torr.ince,CA 90501 Tltle Order No.: 0087273-992.SD1-0S1 AP#: 505f.032.Qt7 THE UNDERSIGNED GRANTOR[S) OEClARE(S) THIS SPACE FOR RECORDER'S us· Escrow No.: 001149-ll GRANT DEED DOCUMENTARY TRANSFER TAX is $638.00 CITY TRANSFER TAX $2,610.00 pq computed on luO value of property conveyed, or ( l computed on lull value less value of liens or encumbrances remaining at time al sale. I I Unincorporated area (X) City of Los.Mgeles AND FOR A VALUABLE CONSIDERATION, receipt of which is hereby aclmawl&dged, Kimberly Lavette Owens, SUccessor Trustee of The Ruby C. Lewis Living Trust hereby GRANT(s) to: . . Sung Hwan Kim and Claire S. Kim, husband and wife as Community Property with Right of Sur the real property in the City of Los Angeles, County of Los Angeles, SI.ale of California, descrit Lot 13 of Block Hof Traci No. 5580, in the City of Los Angeles, Col.Sltyof Los Angeles, Slate of Cafifo Map reooided in Boo!< 62. Pages 24 and 25 of Maps, in the Office of the County Recorder of said Cou fuDy described I~ the Exhibit "A· attached hereto and made a part hereof Also Known as: 3015. 3017 EdgehiH Olive, LosAngetes, CA 90018 Dated January 12, 2017 Copyright 2017 tos A"gelt-' C0Ut1ty lleginrar·Recorder/Covnty Clerk Ver 7 .4.0.6 f Prodvction) • http://10.166.68.114/Client. Web.Yoda.RecorderNiewer.aspx 2/28/2017 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 14 of 20 Page ID #:417 Los Angeles County Registrar-Recorder/County Clerk - Your Online Document Archive Page I of 1 ·· .. , ..... .I ' ·· .. '·· .. J , .. Los Angeles county Your Online Document Archive Registrar-Recorder/County Clerk [_~ Ho~J J 1'\: Sear0_J I 'ti ?!~!.ch Re_~•.! I 0 Document lrifo i l i.,U Preview 1 !W'llJI! I @to Copyright 2017 los An9c-les(p1,mty Reg:istrilf•Recon:tirr/County Clerk; Ver 7 .4 0.6 (PrDdvcticrnl http://! 0.166.68.114/Clienl. Web. Yoda.RecorderNiewer.aspx 2/28/2017 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 15 of 20 Page ID #:418 1::) Los Angeles County Registrar-Recorder/County Clerk - Your Online Document Archive Page I of I ' los Angeles County Registrar-Recorder/County Clerk Your Online Document Archive $1!ru. ~ .. ~!~!.' \§ Rotate.U:ft .Rotate-Rig~ ~'O\.!..oo_m..:=ls~"'"-F"-• -"-'¥1 ~Toor,.,.,----...-, - ..... - _IN-"'~' --~vi RECORDING REQUESTED BY: FideNty National TI~ AND WHEN RECORDED MAIL TO: THIS SPACE FOR RECORDER'S use 'litle Order Na.: 0087274·992..S01·051 Escrow No.: 001163-MI AP.t: 5007-ll01·009 .. GRANT DEED TliE UNDERSIGNED GRANTOR(S) DECLARE($) OOCUMENTARY TRANSl=ER TAX is $649.00 CITY TRANSFER TAX $2,655.00 (X) computed on'.tun value of proporty conveyed; or I J computed on full value less value of Uena or encumbrances 1emalning at time of sale. I ) Unincotp0rated area [XI City of Los Angeles AND FOR A VALUABLE CONSIDERATION, reoeipt Of which i$ hereby acknov~edged, Kimberly Owens, Successor Truslee Df Ille Ruby C.l.Bwls Uvlng Tmst dated 6/lll%004 hereby GRANT(&) to: ""- • . l •· ... rvu1 s. Fin ey, a married man as his sole a1 Nilrl>#t..Jrfi/;'Ht~,'I Se para t~ property lhe real propert).· In the City of Los Angeles, County of Los Angeles, State of CaUfQmla, clesorlbed as: lol 188'of.fract No. 911, il'lthe Cltv of Los Angeles, County of Los Angeles, State of California. as per recordod in Book 16, Page($) 188 of Maps, In tile Olllce of the County Recorder of said County. Also Known as: 5345 6rynhuf$1 Avenue, Los Angeles, CA 90043 Dated January 12, 2017 ' . C~pyrlght 2017 LosAngt1esCounty RegFstrar·Recordtt/Caunry Clerk Ver 7 4 0.6 (Proouction) • http://IO .166 .68. I 14/Client. Web. Yoda. RecorderNiewer.aspx 2/28/2017 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 16 of 20 Page ID #:419 MEMORANDUM OF POINTS AND AUTHORITIES 2 3 THE COURT HAS JURISDICTION OVER THIS ESTATE PROCEEDING. 4 Statutory Authority. Probate Code §7050 gives the superior c0urt jurisdiction as . . . I 5 to proceedings under this code concerning the administration of the decedent's estate. 6 Probate Code §7001 states thatthe decedent's property is subject to administration 1 under this code, except a!J otherwise provided by law, and is s~bject to the rights of a beneli'ciaries, creditors, and other persons as provided by law. 9 10 THE COURT HAS THE POWER TO GRANT RELIEF ON AN EXPARTE 11 RELIEF IN CERTAIN CIRCUMSTANCES. 12 State Court Rule. California Rule of Court §3.1202(c) states an ex parte 13 application must include allegations of "irreparable harm, iml'Tl!ldiate danger, or any 14 oth~r statutory basis for grantin~ relief ex parte." 1s ·In this case, the County is requesting that the court stop any distributions 1s and/or disbursements by the executrix and for related relief, which is essentially a 11 suspension of her powers. The County discovered that the executrix has sold the real 1s property held by the estate, despite express and clear court orders forbidding these ·. 19 actions without prior approval. The total sales proceeds exceed $1,00.0,000.00. She 20 has also failed to contact the County to resolve the. $55,246.24 levy/writ for child suppo 21 arrears issued against beneficiary/obligor. 22 In light of these serious breaches of her fiduciary duties and willful 23 disrespect for the court's authority, and considering the great potential for improper c~e •721 disposition of the sale proceeds, the County asserts that there is ample cause for ex parte relief to protect the estate. Unless the court takes control, there is grave danger that the executrix will disburse the sale proceeds improperly and there will be no way to recoup the funds, which represents the quintessential Irreparable harm contemplated by the state court rule. tv!EMORANDUM OF POINTS AND AUTHORITIES Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 17 of 20 Page ID #:420 2 THIS COURT HAS THE STATUTORY AUTHORITY TO ISSUE AN 3 ORDER SHORTENING TIME. 4 Statutory Provision. Code of Cjvi! Procedure §1005(b) simply states that "the s court, or a judge thereof, may prescribe a shorter time" for service of a motion. The e court has the statutory discretion to grant this relief. 7 In this case, the executrix has violated court orders and completely a ignored her fiduciary duty to the estate. The County asks the court to shorten time for 9 hearing on its petition for removal/suspense of the executrix and for an accounting. The 10 delay associated with a hearing on the regular calendar can only cause a substantial 11 hardship to the County because it would allow the executrix more time to conceal, divert 12 or dissipate the estate assets. 13 14 15 16 Dated: 17 ~ By: 16 Staff Attorney · 19 20 21 22 23 (£4 ·ts ' '·. i£.6 ,~., !?"8 I•: ;- ··.: MEMORANOUM OF POINTS ANO AUTHORITIES , :; Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 18 of 20 Page ID #:421 Case Summary - Online Services - LA Court I-Jome Unlinc Scrvic~s Fonns & Filings Self-Help Pay Fioe5, Search Records ... ONLINE SERVICES Case Summary CASE SUMMARY Case Number: BC664737 PAM FAIRE ET AL VS JOEL HENRIOD DDS ET AL Filing Date: 06/1 2/2017 Case Type: Med Malpractice (Ors & Surgeons) (General jurisdiction) Status: Pending Future Hearings Divisions 06/12/2020 at 08:30 am in Department 97 at 111 North Hill Street, Los Angeles, CA 90012 osc RE Dismissal 11/26/2018 at 10:00 am in Department 97 at 111 North Hiii Street, Los Angeles, CA 90012 Final Status Conference 12/12/2018 at08;30 am in Department 97 at 111 North Hill Street, Los Angeles, CA 90012 Jury Trial Documents Filed J Proceeding Information Parties DOES 1 THROUGH 25 - Defendant/Respondent FAIRE KEN - Plaintiff/Petitioner FAIRE PAM - Plaintiff/Petitioner GOLDBERG ROBERT D. ESQ. -Attorney for Plaintiff/Petitioner HENRIOD JOEL D.D.S. - Defendant/Respondent MHS - Defendant/Respondent Mll,.LER & HENRIOD DENTAL PARTNERSHIP· Defendant/Respondent MILLER RONDALD W. D.D.S. ·Defendant/Respondent PASADENA PERIODONTICS - Defendant/Respondent's DBA Case Information I Parry Information I Proceeding Information Documents Filed {Filing dates listed in descending order) 06/20/2017 Demand for Jury Trial Filed by Attorney for Plaintiff/Petitioner http://www.lacourt.org/casesummary/ui/casesummary .aspx? Page I of2 Jury General Info 71612017 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 19 of 20 Page ID #:422 Case Summary - Online Services - LA Court 06/12/2017 Complaint Ca:.e lnforrnJtion I PMty Information I Do(urncnts riled Proceedings Held (Proceeding dates listed in descending order) None Cuse lnformatior) I Party lnform.;ition j Oou;rnents Filed I Proceeding Information Art Showuised in Los Angeles Courthouse jury Rooms "Morning Workour' by April Carl 2003 2nd Place lntr.rm0diate http://www.lacourt.org/casesummary /ui/casesummary .aspx? Page 2 of2 7/6/2017 Case 2:17-cv-03674-FMO-JDE Document 32-1 Filed 07/07/17 Page 20 of 20 Page ID #:423 EXHIBIT B I t I Case 2:17-cv-03674-FMO-JDE Document 32-2 Filed 07/07/17 Page 1 of 2 Page ID #:424 DE-140 ATIORNEY OR PARTY WITHOUT ATTORNEY (Namff, stale barnutrtlter. and a'hl . · --- - - ....... _ . ..:...· a 1'i1e lir11e fo1 sar1iee eftlle Ce1:1Aty's petilisR is s~c;u:teAed. Service of this 9 order and the petition, including all supporting documents, shall be accomplished by- Vl .c;~ 10 'fhst elase ~ail a~d fassir:nil& transwissio0 or e!ectropjc maftno later tha~ ' \t "ti.t. • . • " I . 0y. ~ ,\JI~ 11 I•-.. N '\\Mi oJ)J.\}i:i,A,'W\;"1..Q. ~ ~ Q ~I{ . ~ ) 12 13 14 Dated: l2 • 15 16 . ;~~~~or court LESLEY C. GREEN 17 18 19 20 21 22 23. ,g,<1 l.j. 25 "'"' al·'§~ 14 . en "' 0 . "'8 o:::m·2c.o 0 ........ lO 15 ~u;~~ ill: - "'"' "'U . co~.::.t~ 16 . ..c: c: «> z t: "' 0 0 -e en z ~ Cl'. 8"' 17 UJ -f- 8: 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 100 North First Street, Suite 300, Buroank, California 91502. On July 7, 2017, I served the foregoing document described as: DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6); MEMORANDUM OF POINTS AND ADT90RITIES; [PROPOSED ORDER] on interested parties in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED MAILING LIST ~ BY CMIECF NOTICE OF ELECTRONIC FILING: I electronically filed document(s) with the Clerk of the Court by using the CM/ECF system. Participants in this case who are registered CM/ECF users will be served b)'. the CM/ECF system. Participants in this case who are not registered CMIECF users will be served by mail or by other means permitted by the court rules. ~ BY MAIL: I deposited such envelope in the mail at Burbank, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day witli postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or posta_ge meter date is more than one day after date of deposit for mailing in atlidavit. ~ FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July 7, 2017, at Burbank, California. Isl Marisela Tesillo Marisela Tesillo 14 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: I 7-CV-03674-FMO-(JDE) n:lfiles\1882..owens (cola)\pleadingslmtn to dismiss fac\p-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32-4 Filed 07/07/17 Page 4 of 5 Page ID #:431 2 3 4 5 6 7 8 9 10 11 12 N >- ~8 13 """""' ::> '0 co·'§~ 14 . Cf) <;> Cl...,"' 8 O:::)H·coo fi:.=5~ 15 o~~~ C2 .~ (.) w co u.. ,.:,,,:- ~ 16 • .r::. c ex::> zt"' 0 0 -e cnz~ ""8 co 17 LU ->- LU a. 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST RE: Owens v. County of Los Angeles, et. al, Case No.: 2: l 7-CV-03674-FMO-(JDE) Kimberly Owens 5234 Limelight Court N. Las Vegas, NV 89031 T:(2 l 3)-804-l 343 In Pro Per Daniel L.Helfat CAAG- Office of Attorney General of California 300 S Spring St. Suite 1700 Los Angeles, CA 90013-1230 T:213-897-2810 F: 213-897-2810 Email: dan.helfat@doj.ca.gov Attorney for Defendant Judge David J. Cowan Larry D Lewellyn Larry D. Lewellyn Law Offices 3255 Wilshire Blvd Suite 1024 Los Angeles, CA 900 l 0 T: 213-389-5582 F: 213-389-1143 Email: lewellynlaw@sbcglobal.net Attorney for Defendant Larry D. Lewellyn, Esq. and Law Offices of Larry D. Lewellyn 15 DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(B)(l) AND RULE 12(B)(6) Case No.: 2: l 7-CV-03674-FMO-(JDE) n:\files\1882-owens (cola)\pleadings\mtn to dismiss fac\p-mtn to dismiss fac (revised).docx Case 2:17-cv-03674-FMO-JDE Document 32-4 Filed 07/07/17 Page 5 of 5 Page ID #:432 1 Avi Burkwitz, Esq., Bar No.: 217225 Gagik Ste2anyan, Esg., Bar No.: 296814 2 PETERSON · BRADFORD · BURKWITZ 100 North First Street, Suite 300 3 Burbank, California 91502 T: 818.562.5800 4 F: 818.562.5810 5 Attorneys for Defendant COUNTY OF LOS ANGELES Exempt From Filing Fee Government Code Section 6103 6 (Erroneously sued as County of Los Angeles Child Support Services Department) 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 11 KIMBERLY OWENS, TRUSTEE OF RUBY C. LEWIS LIVING TRUST Case No.: 2:17-CV-03674-FMO-(JDE) fAssigned to the Honorable: John D. Early, Courtroom 6B- 6th Floor] 12 13 vs. Plaintiff, 14 JUDGE DA YID J. COWAN; COUNTY 15 OF LOS ANGELES CHILD SUPPORT SERVICES DEPARTMENT; LARRY D. 16 LEWELLYN, ESQ.; LAW OFFICES OF LARRY. D. LEWELLYN [PROPOSED] ORDER ON DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)(l) AND 12(B)(6) 17 18 19 20 21 22 23 24 25 26 Defendants. [Filed concurrently1 County of Los Angeles' Notice o; Motion ana Motion to Dismiss Plaintiffs First Amended Complaint & County of Los Angeles ' Request for Judicial N'otice J D.ate: August 10, 2017 Time: 10:00 A.M. Dept: 6B- 6th Floor -------------~ Complaint Filed: May 16, 2017 !PROPOSED] ORDER Defendant COUNTY OF LOS ANGELES' Motion to Dismiss Plaintiffs First Amended Complaint, came for hearing on August 10, 2017, in Courtroom 6B, 27 before the Honorable John D. Early, U.S. Magistrate Judge. The Court read and 28 1 [PROPOSED] ORDER ON DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(8)(1) AND 12(8)(6) N:\files\1882-0wens (COLA)\Pleadings\Mtn to Dismiss FAC\Proposed Order.docx Case 2:17-cv-03674-FMO-JDE Document 32-5 Filed 07/07/17 Page 1 of 2 Page ID #:433 1 considered the papers submitted both in support of and in opposition to the Motion, 2 and based upon the papers and pleadings on file in this matter, as well as the oral 3 arguments, 4 IT IS HEREBY ORDERED ADJUDGED AND DECREED that: 5 Plaintiffs First Amended Complaint against Defendant COUNTY OF LOS 6 ANGELES is dismissed, in its entirety, with prejudice. 7 8 IT IS SO ORDERED: 9 10 DATED: July_,2017 11 HON. JOHN D. EARLY 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER ON DEFENDANT COUNTY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(B)(l) AND 12(B)(6) N:lfiles\ I 882-0wens (COLA)\Pleadings\Mtn to Dismiss FAC\Proposed Order.docx Case 2:17-cv-03674-FMO-JDE Document 32-5 Filed 07/07/17 Page 2 of 2 Page ID #:434