Michael Smith v. Superior Court of Riverside County et al

Filing 161

ORDER ADOPTING THE REPORT AND RECOMMENDATION by Judge Valerie Baker Fairbank. The 11/20/17 Report and Recommendation is ADOPTED. The motion for leave to file a First Amended Answer filed by defendants Tani Cantil-Sakauye and Martin N. Hoshino is GR ANTED. The motion for summary judgment filed by defendants Tani Cantil-Sakauye and Martin N. Hoshino on 9/5/17 is GRANTED. Plaintiff's 9/7/17 "Request to File Document Two Days Past File Date Due to Mix-Up" is GRANTED. Plaintiff' ;s 8/11/17 "Ex Parte Request to Continue Case 30 Days Due to Time Required to Complete Deposition of Chief Justice is DENIED as moot. Plaintiff's 10/11/17 "Ex Parte Request to Continue Case Four Days Due to Difficulties is DENIED as moot. This action is dismissed. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL WALDEN SMITH, 12 13 14 15 16 ) NO. ED CV 14-1413-VBF(E) ) Plaintiff, ) ) v. ) REPORT AND RECOMMENDATION OF ) SUPERIOR COURT OF RIVERSIDE ) UNITED STATES MAGISTRATE JUDGE COUNTY, et al., ) ) Defendants. ) ______________________________) 17 18 This Report and Recommendation is submitted to the Honorable 19 Valerie Baker Fairbank, United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Plaintiff filed this civil rights action pursuant to 42 U.S.C. 26 section 1983 on July 16, 2014. 27 Defendants the Riverside County Superior Court, two Superior Court 28 judges, a private attorney, and Plaintiff’s ex-wife who is the mother The original Complaint named as 1 of Plaintiff’s minor daughter. Plaintiff asserted claims arising out 2 of state court orders in family law proceedings declaring Plaintiff a 3 vexatious litigant pursuant to California’s Vexatious Litigant Statute 4 (“VLS”)1 and imposing a bond requirement. 5 bond requirement prevented Plaintiff from filing an opposition to the 6 mother’s application for a “move-away” order approving the mother’s 7 move to Virginia with Plaintiff’s minor daughter. According to Plaintiff, the 8 9 On September 3, 2014, United States Magistrate Judge 10 David T. Bristow screened the Complaint and issued an order dismissing 11 the Complaint with leave to amend. 12 filed a First Amended Complaint, naming the same Defendants and adding 13 four new Defendants: the California Judicial Council, California 14 Supreme Court Chief Justice Tami Cantil-Sakauye, former Judicial 15 Council Administrative Director Steven Jahr and the presiding Justice 16 of the California Court of Appeal, Fourth Judicial District, Manuel 17 Ramirez. On December 8, 2014, Plaintiff 18 19 1 27 The California legislature adopted the Vexatious Litigant Statute in 1963 to ease the “unreasonable burden placed upon the courts by groundless litigation.” [citation]. The statute provides that a defendant in any state court may move the court to require a pro se plaintiff who qualifies as a “vexatious litigant” to post a security bond before proceeding. Cal. Civ. Proc. Code § 391.1. The statute also allows a judge to enter a prefiling order prohibiting a vexatious litigant from filing any new pro se litigation without the permission of the presiding judge of the court where the litigant seeks to file. Id. § 391.7(a). Parties subject to prefiling orders are placed on a statewide list—“the Vexatious Litigant List”—maintained by the Judicial Council of California and disseminated to clerks of the state courts. Id. § 391.7(e). 28 Wolfe v. Strankman, 392 F.3d 358, 360-61 (9th Cir. 2004). 20 21 22 23 24 25 26 2 1 On January 20, 2015, Plaintiff filed a Second Amended Complaint, 2 naming the same Defendants as those named in the First Amended 3 Complaint, except for Defendant Jahr, and adding California Judicial 4 Council Administrative Director Martin N. Hoshino. 5 6 On February 3, 2015, Magistrate Judge Bristow issued a screening 7 order dismissing the Second Amended Complaint with leave to amend. 8 March 6, 2015, Plaintiff filed a Third Amended Complaint. 9 2015, Magistrate Judge Bristow issued a screening order dismissing the 10 Third Amended Complaint with leave to amend. 11 On On July 13, On August 27, 2015, Plaintiff filed a Fourth Amended Complaint. 12 13 The Fourth Amended Complaint named as Defendants the California 14 Judicial Council, California Supreme Court Chief Justice Tami Cantil- 15 Sakauye, former Judicial Council Administrative Director Steven Jahr, 16 current Judicial Council Administrative Director Martin N. Hoshino and 17 Superior Court Judge Steven Counelis. 18 Complaint, Plaintiff asserted the following ten claims for relief: In the Fourth Amended 19 20 21 Claim One: Defendants’ alleged application of the VLS to Plaintiff assertedly violated Equal Protection. 22 23 Claim Two: Defendants’ alleged application of the VLS to 24 Plaintiff assertedly violated Due Process and the First Amendment 25 right to petition. 26 27 28 Claim Three: The VLS allegedly is vague and overbroad on its face as applied to child custody cases. 3 1 Claim Four: The VLS as applied to Plaintiff assertedly creates a 2 prior restraint in alleged violation of the First Amendment right to 3 petition; 4 5 6 Claim Five: Purported unwritten rules and procedures implementing VLS prefiling orders allegedly violate Due Process. 7 8 9 Claim Six: The VLS purportedly functions as an improper bill of attainder. 10 11 12 Claim Seven: The VLS assertedly functions as an improper Ex Post Facto law. 13 14 Claim Eight: Defendant Superior Court Judge Counelis allegedly 15 violated Plaintiff’s right to familial association, assertedly by 16 issuing a “void” VLS order imposing a $25,000 bond on Plaintiff 17 without a valid hearing, the effect of which assertedly was to deny 18 Plaintiff the right to oppose a motion to move Plaintiff’s child to 19 Virginia. 20 21 Claim Nine: Defendants assertedly applied the VLS to Plaintiff 22 in alleged violation of Plaintiff’s rights to substantive and 23 procedural due process under the California Constitution. 24 25 Claim Ten: Plaintiff allegedly is entitled to declaratory 26 judgment and injunctive relief on the issue of whether the VLS as 27 applied in Family Court, as opposed to civil court, violates “basic 28 fundamental rights.” 4 1 On September 30, 2015, Magistrate Judge Bristow screened the 2 Fourth Amended Complaint and issued a Minute Order. The Minute Order 3 stated that: (1) because the doctrine of judicial immunity shields 4 Judge Counelis from suit, the Fourth Amended Complaint failed to state 5 a claim against Judge Counelis; and (2) the Fourth Amended Complaint 6 stated a claim against the Judicial Council and Defendants Cantil- 7 Sakauye, Jahr and Hoshino, in their administrative capacities, “at 8 least at this initial stage of the proceedings.” 9 gave Plaintiff the option to continue to pursue an action against The Minute Order 10 Judge Counelis by filing a Fifth Amended Complaint within thirty (30) 11 days. 12 choosing instead to pursue the action only against the other 13 Defendants named in the Fourth Amended Complaint. Plaintiff did not file a timely Fifth Amended Complaint, 14 15 On January 7, 2016, Defendants Judicial Council, Cantil-Sakauye, 16 Jahr and Hoshino filed a motion to dismiss the Fourth Amended 17 Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil 18 Procedure. Plaintiff filed opposition papers on February 19, 2016. 19 20 On September 7, 2016, Magistrate Judge Bristow issued a Report 21 and Recommendation recommending that the Court: (1) dismiss all claims 22 against the Judicial Council and Defendant Jahr without prejudice; 23 (2) dismiss the Equal Protection and Due Process claims contained in 24 Claims One and Two to the extent those claims challenged the VLS as 25 applied to all family court litigants; and (3) dismiss Claims Three, 26 Five, Six, Seven and Ten with prejudice. 27 Recommendation observed that the Court already had screened out Claim 28 Eight in the September 30, 2015 Minute Order (Report and 5 The Report and 1 Recommendation filed September 7, 2016, at p. 9, n.3). The Report and 2 Recommendation further observed that Defendants had not moved to 3 dismiss Plaintiff’s section 1983 claims for alleged violation of the 4 First Amendment right to petition, alleged prior restraint or alleged 5 violation of the California Constitution (id., p. 18, n.10).2 6 Report and Recommendation stated that Plaintiff’s claims in Claims One 7 and Two challenging the VLS as applied specifically to Plaintiff were 8 sufficient to withstand the motion to dismiss and recommended that the 9 Court order Defendants Cantil-Sakauye and Hoshino to file an Answer to The 10 the Fourth Amended Complaint with respect to the “as applied” claims 11 asserted in Claims One and Two. 12 13 On October 17, 2016, the District Judge issued an order adopting 14 the Report and Recommendation, inter alia, ordering Defendants Cantil- 15 Sakauye and Hoshino (the only remaining Defendants) to file an Answer 16 to the surviving portions of Claims One and Two of the Fourth Amended 17 Complaint. 18 19 On November 23, 2016, Defendants Cantil-Sakauye and Hoshino 20 (“Defendants”) filed an Answer to the Fourth Amended Complaint which 21 denied Claims One and Two and asserted, inter alia, that Claim Four 22 (alleged violation of First Amendment right to petition) and Claim 23 Nine (alleged violations of California Constitution) had been 24 dismissed in the October 17, 2016 Order. 25 26 2 27 28 And yet, the Report and Recommendation recommended that Defendants Cantil-Sakauye and Hoshino be ordered to file an Answer only to Claims One and Two of the Fourth Amended Complaint (see Report and Recommendation, p. 36). 6 1 2 On June 21, 2017, the case was transferred to the undersigned Magistrate Judge. 3 4 On July 28, 2017, Defendants filed a “Motion for Leave to File a 5 First Amended Answer, etc.,” seeking leave to amend the Answer to add 6 denials to Claims Four and Nine of the Fourth Amended Complaint in 7 light of statements in Magistrate Judge Bristow’s Report and 8 Recommendation indicating that Defendants had not moved to dismiss 9 those claims. 10 11 On August 11, 2017, Plaintiff filed an “Ex Parte Request to 12 Continue Case 30 Days Due to Time Required to Complete Deposition of 13 Chief Justice, etc.,” accompanied by two declarations of Plaintiff. 14 On August 16, 2017, Defendants filed an opposition to the Ex Parte 15 Application. 16 Defendants’ Opposition to the “Ex Parte Application to Continue Case 17 30 Days, etc.,” accompanied by various documents. On August 29, 2017, Plaintiff filed a “Rebuttal” to 18 19 On August 31, 2017, Plaintiff filed an opposition to Defendants’ 20 “Motion for Leave to File an Amended Answer, etc.,” accompanied by 21 various documents. 22 23 On September 5, 2017, Defendants filed a “Motion for Summary 24 Judgment/Partial Summary Judgment or in the Alternative Dismissal of 25 the Action for Lack of Subject Matter Jurisdiction” (the “motion for 26 summary judgment”), accompanied by various documents and a request for 27 judicial notice. 28 /// 7 1 On September 7, 2017, Plaintiff filed “Plaintiff[’]s Request to 2 File Document Two Days Past File Date Due to Mix-Up,” apparently 3 seeking leave to file a belated response to Defendants’ “Motion for 4 Leave to File a First Amended Answer, etc.” 5 issued a Minute Order on October 11, 2017, indicating that the Court 6 had permitted the filing of the opposition to the “Motion for Leave to 7 File A First Amended Answer, etc.” The Magistrate Judge 8 9 On October 11, 2017, Plaintiff filed an “Ex Parte Request to 10 Continue Case Four Days Due to Difficulties Experienced By Plaintiff 11 When Arrested on Friday September 29th, 2017 By San Bernardino Police 12 Department, etc.”3 13 Opposition to Defendants’ Motion for Summary Judgment, accompanied by 14 various documents. 15 Plaintiff’s Opposition. Also on October 11, 2017, Plaintiff filed an On October 24, 2017, Defendants filed a Reply to 16 17 DEFENDANTS’ MOTION TO FILE A FIRST AMENDED ANSWER 18 19 Rule 15(a)(2) of the Federal Rule of Civil Procedure provides 20 that a court “should freely give leave” to amend a pleading “when 21 justice so requires. 22 liberality.” 23 654 F.3d 975, 985 (9th Cir. 2011), cert. denied, 565 U.S. 1200 (2012) 24 (citations and internal quotations omitted; affirming order permitting “This policy is to be applied with extreme C.F. ex rel. Farnan v. Capistrano United School Dist., 25 26 3 27 28 In light of the for filing of Plaintiff’s judgment, and the Court’s “Ex Parte Request” should passage of time, the Court’s receipt opposition to the motion for summary consideration of the opposition, this be denied as moot. 8 1 amendment of answer). Defendants seek to amend the Answer to plead 2 denials to certain claims due to an asserted lack of clarity in the 3 Report and Recommendation with respect to the claims Defendants were 4 required to answer. 5 Answer, there is no indication that amendment would be futile, and 6 there is no showing of undue delay, bad faith, dilatory motive or 7 undue prejudice to Plaintiff. 8 File a First Amended Answer should be granted. Defendants have not previously amended the See id. Accordingly, the Motion to 9 10 STANDARDS GOVERNING MOTION FOR SUMMARY JUDGMENT 11 12 Summary judgment is appropriate if the evidence, viewed in the 13 light most favorable to the nonmoving party, demonstrates that there 14 is no genuine issue of material fact and that the moving party is 15 entitled to judgment as a matter of law. 16 party moving for summary judgment bears the initial burden of offering 17 proof of the absence of any genuine issue of material fact. 18 Corp. v. Catrett, 477 U.S. 317, 323 (1986). 19 burden is met, the party opposing the motion is required to go beyond 20 the pleadings and, by the party’s own affidavits or by other evidence, 21 designate “specific facts showing that there is a genuine issue for 22 trial.” 23 Inc., 454 F.3d 975, 987 (9th Cir. 2006). 24 motion must submit evidence sufficient to establish the elements that 25 are essential to that party’s case, and for which that party will bear 26 the burden of proof at trial. 27 322. 28 /// Fed. R. Civ. P. 56(c). The Celotex Once the moving party’s Fed. R. Civ. P. 56(e); Miller v. Glenn Miller Productions, The party opposing the Celotex Corp. v. Catrett, 477 U.S. at 9 1 The Court must “view the facts in the light most favorable to the 2 non-moving party and draw reasonable inferences in favor of that 3 party.” 4 2007). 5 summary judgment is inappropriate. 6 Productions, Inc., 454 F.3d at 988. 7 the court does not make credibility determinations or weigh 8 conflicting evidence.” 9 F.3d 885, 891 (9th Cir. 2005) (citation omitted). Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. Where different ultimate inferences reasonably can be drawn, Miller v. Glenn Miller “At the summary judgment stage, Porter v. California Dep’t of Corrections, 419 10 11 A factual dispute is “genuine” only if there is a sufficient 12 evidentiary basis upon which a reasonable jury could return a verdict 13 for the nonmoving party. 14 242, 248 (1986). 15 affect the outcome of the lawsuit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. A factual dispute is “material” only if it might Id. 16 17 “Evidence may be offered ‘to support or dispute a fact’ on 18 summary judgment only if it could be presented in an admissible form 19 at trial.” 20 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036- 21 37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal 22 quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona, 23 Inc., 374 F.3d 840, 846 (9th Cir. 2004) (“Even the declarations that 24 do contain hearsay are admissible for summary judgment purposes 25 because they ‘could be presented in an admissible form at trial.’”) 26 (citations omitted). 27 summary judgment. 28 Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. Southern California Darts Ass’n v. Zaffina, 762 F.3d 921, Conclusory statements are insufficient to defeat Comite de Jornaleros de Redondo Beach v. City of 10 1 denied, 565 U.S. 1200 (2012). 2 SUMMARY OF EVIDENCE4 3 4 5 On April 14, 2000, Plaintiff filed a petition for dissolution of 6 his marriage in the Riverside County Superior Court (Defendants’ Ex. 7 1, p. 3). 8 December 1, 1999 (Defendants’ Ex. 11, Requests for Admission No. 58; 9 Defendants’ Ex. 12, Responses to Requests for Admission No. 58). Plaintiff is the father of a minor daughter, born on More 10 than a decade of state court litigation followed, including litigation 11 concerning the custody of Plaintiff’s daughter. 12 himself during most of the state court litigation. 13 the challenged vexatious litigant bond order, the state court case 14 file comprised twenty-seven volumes (see Defendants’ Ex. 2, p. 84). Plaintiff represented As of the date of 15 16 On May 7, 2004, Plaintiff’s ex-wife (the child’s mother), Juvelyn 17 Smith (“Juvelyn”), filed a motion for imposition of a vexatious 18 litigant sanction against Plaintiff (Defendants’ Ex. 1, p. 149). 19 Plaintiff filed opposition to the motion (Defendants’ Ex. 4). On 20 4 21 22 23 24 25 26 27 28 Defendants seek judicial notice of the docket and documents filed in the state court family law proceeding. Defendants’ request for judicial notice of these documents is granted. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records) Plaintiff has submitted a number of documents relating to Plaintiff’s criticism of the actions of his ex-wife, judges, social workers and/or others in connection with dependency and custody proceedings concerning Plaintiff’s daughter, most of which actions allegedly occurred prior to the events at issue in the present proceeding. Such documents are immaterial to the issues presented here. 11 1 July 8, 2004, the court denied the motion without prejudice for 2 failure to effect proper service of the motion, but granted Juvelyn 3 leave to file an amended motion (Defendants’ Ex. 1, pp. 166-67, 169; 4 Defendants’ Ex. 5). 5 (Defendants’ Ex. 1, p. 170; Defendants’ Ex. 6). 6 at which Plaintiff was present and argued, the court issued an order 7 on September 9, 2004, declaring Plaintiff a vexatious litigant and 8 “preventing Michael Walden Smith from filing any new litigation in the 9 courts of this state in propria persona without first obtaining leave Juvelyn filed an amended motion on July 26, 2004 Following a hearing 10 of the Presiding Judge of the court where the litigation is supposed 11 to be filed” (Defendants’ Ex. 1, pp. 173-74; Defendants’ Ex. 7). 12 order further prohibited Plaintiff “from filing any motions/orders to 13 show cause and ex parte filings in this action in propria persona 14 without first obtaining leave of the Presiding Judge” (Defendants’ Ex. 15 1, p. 174). 16 time (id., p. 173). The The court declined to impose a bond requirement at that 17 18 During a hearing on March 9, 2012, however, the court described 19 the history of Plaintiff’s filings during the years of litigation, and 20 the court then ordered that Plaintiff would be required to post a 21 $25,000 bond before making any further filings with the court 22 (Defendants’ Ex. 2, pp. 89-91; Defendants’ Ex. 8). 23 24 On June 18, 2012, Juvelyn filed an application for a “move-away” 25 order seeking leave to move to Virginia with the child (Defendants’ 26 Ex. 1, p. 92). 27 because the application had been filed by an attorney who was not 28 counsel of record, it appears the court subsequently permitted the Although the court initially rejected this application 12 1 substitution of counsel and set a hearing on the application for 2 July 10, 2012 (see Defendants’ Ex. 2, pp. 92-93). 3 4 On July 3, 2012, Plaintiff submitted for filing a “Notice of 5 Motion/Responsive Declaration, etc.,” opposing Juvelyn’s application 6 for a “move away” order (id., p. 95; Deposition of Michael Walden 7 Smith, Respondent’s Lodgment 13, Ex. 5 thereto; Plaintiff’s Ex. 10). 8 The court clerk rejected Plaintiff’s document for filing because 9 Plaintiff had not posted a bond as required by the court’s March 9, 10 2012 order (Defendants’ Ex. 2, p. 95; Declaration of Michael Walden 11 Smith, Respondents’ Lodgment 13, Ex. 6 thereto). 12 the case was rejected for filing due to Plaintiff’s failure to satisfy 13 the bond requirement (Deposition of Michael Walden Smith, Defendants’ 14 Ex. 13, pp. 59-60). No other document in 15 16 Plaintiff appeared at the hearing on July 10, 2012, and presented 17 argument objecting to Juvelyn’s request to move the child to Virginia 18 (Defendants’ Ex. 9). 19 leave for Juvelyn to move the child to Virginia (Defendants’ Ex. 2, p. 20 96; Defendants’ Ex. 9). Over Defendant’s objection, the court granted 21 22 Thereafter, Plaintiff requested an order vacating the move-away 23 order and the vexatious litigant order, including the bond requirement 24 (Defendants’ Ex. 10; Deposition of Michael Walden Smith, Defendants’ 25 Ex. 13, at pp. 88-89, Ex. 12 thereto; Plaintiff’s Ex. 15). 26 hearing on November 16, 2012, the court denied Plaintiff’s requests 27 (id.). 28 /// 13 At a 1 Plaintiff filed a petition for mandate in the California Court of 2 Appeal inter alia challenging the vexatious litigant bond order 3 (Defendants’ Ex. 11, Requests for Admission Nos. 32, 33; Defendants’ 4 Ex. 12, Responses to Requests for Admission Nos. 32, 33). 5 of Appeal denied the petition, stating that Plaintiff had “failed to 6 make any legally cognizable argument supporting his contentions that 7 the superior court abused its discretion and violated due process in 8 permitting his former spouse to move out of state with their child and 9 that the vexations litigant statute is unconstitutional” (Plaintiff’s 10 The Court Ex. 12). 11 12 Plaintiff filed a petition for mandate in the Court of Appeal 13 inter alia challenging the Superior Court’s July 10, 2012 orders 14 (Defendants’ Ex. 11, Requests for Admission Nos. 41 and 42; 15 Defendants’ Ex. 12, Responses to Requests for Admission Nos. 41 and 16 42). The Court of Appeal denied the petition (id.). 17 18 At a hearing before the Superior Court on January 14, 2013, 19 Plaintiff agreed to a stipulation allowing his daughter to live with 20 Juvelyn in Virginia (Defendants’ Ex. 2, p. 102). 21 March 18, 2013, Plaintiff again stipulated to allow the child to 22 continue to reside in Virginia (Deposition of Michael Walden Smith, 23 Defendants’ Ex. 13, p. 171). At a hearing on 24 25 In November of 2014, at the conclusion of a two-day trial, the 26 Superior Court issued a judgment awarding joint legal custody to 27 Plaintiff and Juvelyn, with physical custody to Juvelyn and visitation 28 to Plaintiff (Defendants’ Ex. 2, pp. 139-40; Defendants’ Ex. 14). 14 1 DISCUSSION 2 3 I. 4 As the Court Previously Ruled, Plaintiff’s Facial Challenges to the VLS Lack Merit. 5 6 Despite this Court’s previous dismissal of Plaintiff’s claims 7 asserting facial challenges to the VLS, Plaintiff persists in arguing 8 those claims in his papers opposing summary judgment (see e.g., 9 “Memorandum of Points and Authorities in Support of Plaintiff’s 10 Opposition to Defendants’ Motion for Summary Judgment”). 11 Magistrate Judge Bristow explained in his Report and Recommendation 12 (which the Court adopted), Plaintiff’s facial Due Process and Equal 13 Protection claims, his facial claims of alleged overbreadth and 14 vagueness, his claims that the VLS assertedly constitutes a bill of 15 attainder and an ex post facto law and his claims that the VLS 16 purportedly violates “basic fundamental rights” all lack merit. 17 Wolfe v. George, 486 F.3d 1120, 1124-27 (9th Cir. 2007); see also 18 Pierce v. Cantil-Sakauye, 628 Fed. App’x 548, 549 (9th Cir. 2016). As See 19 20 II. This Court Lacks Jurisdiction Over Plaintiff’s “Aa Applied” 21 Challenges5 to the State Court’s Custody and Vexatious Litigant- 22 Related Determinations. 23 24 Under the “Rooker-Feldman” doctrine, a federal district court 25 lacks subject matter jurisdiction to review final state court 26 decisions. See District of Columbia Court of Appeals v. Feldman, 460 27 5 28 Plaintiff’s “as-applied” challenges include that alleged in Claim 4. 15 1 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 2 (1923).6 3 is the United States Supreme Court, by petition for writ of 4 certiorari. 5 U.S. at 476; 28 U.S.C. § 1257. 6 brought by state-court losers complaining of injuries caused by state- 7 court judgments rendered before the district court proceedings 8 commenced and inviting district court review and rejection of those 9 judgments.” The only proper federal court in which to obtain such review District of Columbia Court of Appeals v. Feldman, 460 Rooker-Feldman applies to “cases Exxon Mobil Corp. v. Saudi Basic Industries, Inc., 544 10 U.S. 280, 294 (2005). 11 plaintiff both asserts as [his or her] injury legal error or errors by 12 the state court and seeks as [his or her] remedy relief from the state 13 court judgment." 14 Cir. 2004). 15 state court decision involves federal constitutional issues." 16 Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986) 17 (citations omitted). 18 Feldman purposes when the state courts finally resolve the issue that 19 the federal court plaintiff seeks to relitigate in a federal forum, 20 even if other issues remain pending at the state level.” 21 v. Justices of Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005). Rooker-Feldman applies "only when the federal Kougasian v. TMSL, Inc., 359 F.3d 1136, 1440-41 (9th "This doctrine applies even when the challenge to the In this Circuit, “[p]roceedings end for Rooker- Mothershed 22 23 24 In Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), after the state court rescinded a previously issued VLS prefiling order, the 25 26 27 28 6 The Rooker-Feldman doctrine “may be raised at any time by either party or sua sponte by the court.” Riding v. Cach LLC, 992 F. Supp. 2d 987, 992 (C.D. Cal. 2014). Magistrate Judge Bristow’s Report and Recommendation did not discuss the possible application of the Rooker-Feldman doctrine. 16 1 plaintiff filed six pro se lawsuits in the state courts. In federal 2 court, the plaintiff sought only injunctive and declaratory relief 3 against threatened future harm from a potential future application of 4 the VLS to the plaintiff. 5 held that Rooker-Feldman did not bar the plaintiff’s exclusively 6 prospective challenge because the plaintiff thereby was not seeking 7 relief from any state court judgment. In those circumstances, the Ninth Circuit Id. at 363-64.7 8 9 In the present case, by contrast, Plaintiff’s remaining claims 10 that the VLS “as applied” to Plaintiff by the state court purportedly 11 violated the federal and state constitutions clearly challenge the 12 validity of the state court’s prior orders imposing a prefiling order, 13 imposing a bond requirement and issuing a judgment concerning child 14 custody, as demonstrated more fully below: 15 16 In the Fourth Amended Complaint, Plaintiff alleges that 17 Judge Counelis’ order setting a bond requirement allegedly 18 violated Due Process and “asks the court to make a 19 Declaratory Judgment on this issue and confirm that 20 Plaintiff’s rights were violated by the ‘administrative 21 actions’ of Judge Counelis” (Fourth Amended Complaint, p. 22 10). 23 jurisdiction to make such an order, he was acting without 24 any authority or jurisdiction” (id.). 25 Court to affirm that this act was outside of his Plaintiff alleges that “since Judge Counelis had no “Plaintiff asks the 26 27 28 7 The Ninth Circuit subsequently upheld judgment on the pleadings against the plaintiff. See Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007). 17 1 jurisdiction or allow Plaintiff to appeal this particular 2 issue . . .” 3 separate [Plaintiff] from his daughter unlawfully” (id., p. 4 11). 5 Plaintiff’s appeals . . .” 6 all of these acts were unconstitutional and asks the Court 7 “to find [Plaintiff’s] arguments correct . . .” (id.). (id.). “Judge Counelis used the law to “The Appellate Judges used the VLS law to deny (id.). Plaintiff alleges that 8 9 In the Fourth Amended Complaint’s prayer for relief, 10 Plaintiff seeks, inter alia: (1) a declaration that the 11 vexatious litigant order issued against Plaintiff assertedly 12 was unlawful; (2) a declaration that the $25,000 bond 13 imposed on March 9, 2012 and the rejection of Plaintiff’s 14 responsive declaration opposing the application for a move- 15 away order assertedly were unlawful; (3) a declaration that 16 the move-away order was unlawful; and (4) a declaration that 17 various judges’ impositions of the VLS on Plaintiff 18 assertedly to deny Plaintiff the ability to file documents 19 and to separate Plaintiff from his child for over two years 20 were unlawful (Fourth Amended Complaint, pp. 12-14). 21 22 In his Opposition to the Motion for Summary Judgment, 23 Plaintiff states: “The Family Law Court under Judge Counelis 24 issued a void order in direct due process violation of 25 Plaintiff’s rights, by ordering that the child shall remain 26 in Virginia, when the court order clearly specified the 27 child was to return to the father at the end of summer 28 vacation. Then the Family Court AND the Appellate Court 18 1 went on to violate father’s due process rights further by 2 refusing to adjudicate any of his pleadings (of several 3 types including appeals) to void the unconstitutional and 4 void orders.” 5 Support of Plaintiff’s Opposition to Defendants’ Motion for 6 Summary Judgment, p. 6) (original emphasis).8 (Memorandum of Points and Authorities in 7 8 9 In his Opposition to the Motion for Summary Judgment, Plaintiff incorporates arguments contained in Plaintiff’s 10 Opposition to Defendants’ Amended Answer to Plaintiff’s 11 Fourth Amended Complaint (Plaintiff’s Opposition to 12 Defendants’ Motion for Summary Judgment, ¶ 12 & Ex. Five 13 thereto). 14 court allegedly violated Plaintiff’s due process rights by 15 granting the move-away order; (2) Plaintiff allegedly 16 suffered injury “at the hands of the Family Law Court under 17 Judge Counelis and the Appellate Court”; and (3) the state 18 court’s orders supposedly were void and rendered void all 19 subsequent actions. Therein, Plaintiff argues that: (1) the superior 20 21 Plaintiff also incorporates arguments contained in 22 Plaintiff’s “Rebuttal of Michael Smith to Opposition of 23 8 24 25 26 27 28 However, at his deposition, Plaintiff testified that: (1) Plaintiff did not recall whether any document other than the responsive declaration to the application for the move-away order was ever rejected for filing for failure to comply with the bond requirement; (2) no one prevented Plaintiff from seeking permission of the presiding judge to file documents; and (3) Plaintiff could and did file documents with the permission of the presiding judge without posting bond (Deposition of Michael Walden Smith, Respondent’s Ex. 13, pp. 57-59). 19 1 Defendants to Plaintiff’s Ex Parte Request for 30-Day 2 Continuance of Discovery, etc.” (Plaintiff’s Opposition to 3 Defendants’ Motion for Summary Judgment, ¶ 12 & Ex. Six 4 thereto). 5 court which issued the move-away order was “corrupt and 6 refused to obey the law”; (2) the “entire scenario was void 7 from the moment Judge Counelis issued an unconstitutional 8 and unlawful order that [Plaintiff] post a $25,000 bond”; 9 (3) “[the] Family Law Court carried out a rape of this Therein, Plaintiff argues that: (1) the state 10 child’s best interests by refusing to order the mother to 11 MOVE-BACK to California. . . .”; and (4) Defendants 12 purportedly are blocking Plaintiff’s efforts “to accumulate 13 all correct and relevant information to support the claim of 14 the civil rights violation and the mishandling of the cases 15 in the Family Law Courts by misapplying the CCP 391 law.” 16 17 Plaintiff further contends his child “should never have 18 been taken from him” (Plaintiff’s Opposition to Defendants’ 19 Motion for Summary Judgment, p. 4) (emphasis deleted). 20 21 At his deposition, Plaintiff testified inter alia that: 22 (1) the present action “is only about that crooked judge 23 over there and what he did in denying me due process”; and 24 (2) Plaintiff’s goal in this action is “to eventually expose 25 the fraud of the family law courts” (Deposition of Michael 26 Walden Smith, Defendants’ Ex. 13, pp. 24, 174). 27 advocates the closure of California’s family law courts and 28 the restoration of family relations “to its original 20 Plaintiff 1 accepted location, THE CHURCH” (“Declaration of Michael 2 Smith in Support of Opposition to defendants’ Motion 3 for Summary Judgment,” ¶ 8).9 4 5 Thus, it is clear that Plaintiff complains “of injuries caused by 6 state-court judgments rendered before the district court proceedings 7 commenced and invit[es] district court review and rejection of those 8 judgments.” 9 544 U.S. at 294; Scheer v. Kelly, 817 F.3d 1183, 1186 (9th Cir.), See Exxon Mobil Corp. v. Saudi Basic Industries, Inc., 10 cert. denied, 137 S. Ct. 240 (2015) (attorney’s as-applied First 11 Amendment, Equal Protection and Due Process challenges to State Bar 12 suspension order barred by Rooker-Feldman); Ignacio v. Judges of the 13 United States Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 14 1165 (9th Cir. 2006) (Rooker-Feldman barred challenges to state 15 court’s child custody and vexatious litigant determinations in family 16 law case); compare Morrison v. Peterson, 809 F.3d 1059, 1070 (9th Cir. 17 2015), cert. denied, 136 S. Ct. 2021 (2016) (Rooker-Feldman did not 18 bar the plaintiff’s as-applied challenge to statute regarding post- 19 conviction use of DNA where, according to the Circuit, the plaintiff 20 did not seek an order that he be allowed the relief denied to him in 21 state court but rather made a categorical challenge to a defect not 22 apparent on the face of the statute and “not limited to the 23 particulars of [the plaintiff’s] situation”). Under Rooker-Feldman, 24 25 26 27 28 9 The Court observes that any request for relief concerning the custody of Plaintiff’s daughter will become moot on December 1, 2017, when Plaintiff’s daughter turns 18. See Marriage of Jensen, 114 Cal. App. 4th 587, 594-95, 7 Cal. Rptr. 3d 701 (2003) (court lacks jurisdiction to enforce custody order with respect to a child who has reached the age of 18). 21 1 this Court lacks jurisdiction to entertain Plaintiff’s state law 2 claims as well as Plaintiff’s federal law claims. 3 California, 564 Fed. App’x 296, 296-97 (9th Cir. 2014) (affirming 4 dismissal of state law claims on Rooker-Feldman grounds); Mothershed 5 v. Justices of Supreme Court, 410 F.3d 602, 607-08 (9th Cir. 2005) 6 (same).10 See McDowell v. 7 8 III. Plaintiff Has Not Shown Any Entitlement to Additional Discovery. 9 10 On January 3, 2017, Magistrate Judge Bristow issued a Case 11 Management and Scheduling Order setting the discovery cut-off to occur 12 six months from the date of the Order. 13 service of the Order on Plaintiff, Magistrate Judge Bristow issued a 14 Minute Order on February 9, 2017 deeming the six-month discovery 15 period to commence on February 7, 2017. 16 Order set the discovery cut-off to occur July 7, 2017. 17 2017, on the application of Plaintiff, Magistrate Judge Bristow 18 extended the discovery cut-off to August 3, 2017. Due to an apparent lack of Accordingly, this Minute On March 3, 19 20 On August 11, 2017, prior to the filing of Defendants’ summary 21 judgment motion, Plaintiff filed an “Ex Parte Request to Continue Case 22 30 Days Due to Time Required to Complete Deposition of Chief Justice, 23 10 24 25 26 27 28 In dismissing a family law-related action under the Rooker-Feldman doctrine, another District Court aptly noted “it should be remembered that, in the area of family law, the [United States] Supreme Court has long held that ‘[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the States and not the laws of the United States.[’] Ex parte Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500 (1890).” Roselle v. State of Montana, 2008 WL 3914974, at *8 n.5 (D. Mont. Aug. 20, 2008). 22 1 Obtain Information from Navy Via Subpoena; and Obtain Contact 2 Information of Mediator Ron Woods Via Subpoena” (“Ex Parte Request to 3 Continue Case 30 Days”). 4 5 The proposed discovery concerning a Navy subpoena and the 6 mediator’s contact information involve the merits of the move-away 7 order, specifically who supposedly was responsible for causing the 8 mother’s move to Virginia.11 9 to the dispositive issues in the present proceeding. The proposed discovery is not material 10 11 With respect to the proposed deposition of Defendant Chief 12 Justice Cantil-Sakauye, Plaintiff alleges that it was only during his 13 own deposition on July 31, 2017 that Plaintiff supposedly first 14 realized why the deposition of the Chief Justice assertedly was “a 15 significant priority in this case, because the Chief Justice is 16 supposed to administer the courts and make sure the judges follow the 17 laws correctly.” 18 Plaintiff also alleges that, previously, he lacked funds for 19 deposition costs and only recently reportedly has secured commitments 20 from “volunteers” to pay the deposition fees (id.). 21 /// 22 /// (“Ex Parte Request to Continue Case 30 Days,” p. 5). 23 11 24 25 26 27 28 Plaintiff seeks a Navy subpoena to “verify who initiated the move of the minor child’s mother from San Diego to Norfolk VA with her husband . . . ,” to determine whether Plaintiff’s ex-wife was attempting to alienate the child from Plaintiff (“Ex Parte Request to Continue Case 30 Days,” pp 3-4). Plaintiff seeks contact information of the mediator who allegedly “adjudicated the child’s mother’s first attempt in spring of 2011 to ‘move away’ the child from California to Norfolk VA. . . .” (id., p. 4). 23 1 As of the time Plaintiff filed his Opposition to the Motion for 2 Summary Judgment, Plaintiff apparently had not deposed Defendant 3 Cantil-Sakauye. 4 would show that: (1) the asserted harms to Plaintiff (and other family 5 law litigants) supposedly were the result of Cantil-Sakauye’s acts as 6 an administrator; (2) Cantil-Sakauye allegedly did not ensure that the 7 VLS bond requirements “pass the strict scrutiny tests as to the 8 application of [the VLS] in the courts and especially in the Family 9 law Courts”; and (3) the “strict scrutiny tests” purportedly are not 10 being utilized when judges set bonds for VLS litigants (“Plaintiff’s 11 Opposition to Defendants’ Motion for Summary Judgment,” ¶ 34). Plaintiff alleges that the deposition purportedly 12 13 Under Rule 56(d) of the Federal Rules of Civil Procedure, a court 14 may defer consideration of a motion for summary judgment and allow 15 additional time for discovery “[i]f a nonmovant shows by affidavit or 16 declaration that, for specified reasons, it cannot present facts 17 essential to justify its opposition.” 18 continue a summary judgment motion upon a good faith showing by 19 affidavit that the continuance is needed to obtain facts essential to 20 preclude summary judgment.” 21 772, 779 (9th Cir.), cert. denied, 525 U.S. 822 (1998). 22 in memoranda and declarations to a need for discovery do not qualify 23 as motions under Rule [56(d)].” 24 omitted). 25 summary judgment motion must submit an affidavit setting forth “the 26 particular facts expected from further discovery” (id.). 27 comply with these requirements is a proper ground for denying relief.” 28 United States v. Kitsap Phys. Serv., 314 F.3d 995, 1000 (9th Cir. A district court “should State of California v. Campbell, 138 F.3d “References Id. (citation and internal quotations Rather, a party seeking a continuance to respond to a 24 “Failure to 1 2002) (citations omitted). 2 3 Here, Plaintiff fails to identify any “essential” evidence which 4 Plaintiff does not already possess and which would bear on the 5 dispositive issues in the present proceeding. 6 concerning what information he might elicit is insufficient. 7 Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 8 888 (9th Cir. 1996). 9 deposition testimony concerning the facial challenges to the VLS which Plaintiff’s speculation See Moreover, Plaintiff appears to seek to elicit 10 previously were dismissed and which are foreclosed by Ninth Circuit 11 law. 12 such circumstances, granting a continuance for the purpose of 13 permitting Plaintiff to depose Defendant Cantil-Sakauye would be an 14 idle act. 15 Corp., 81 F.3d at 887-888 (motion to pursue additional discovery 16 properly denied where nonmoving party “listed a number of facts that, 17 even if established, would not have precluded summary judgment”); 18 Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 19 1994) (district court did not abuse discretion in denying motion where 20 “the information sought by [the party opposing summary judgment] would 21 not have shed light on any of the issues upon which the summary 22 judgment decision was based”). 23 Request to Continue Case 30 Days, etc.” should be denied. 24 /// 25 /// 26 /// 27 /// 28 /// See Wolfe v. George, 486 F.3d 1120, 1124-27 (9th Cir. 2007). In See Maljack Productions, Inc. v. GoodTimes Home Video Therefore, Plaintiff’s “Ex Parte 25 1 RECOMMENDATION 2 3 For the foregoing reasons,12 IT IS RECOMMENDED that the Court 4 issue an Order: (1) accepting and adopting this Report and 5 Recommendation; (2) granting Defendants’ “Motion for Leave to File a 6 First Amended Answer, etc.”; (3) denying Plaintiff’s “Ex Parte Request 7 to Continue Case Four Days, etc.” as moot; (4) granting Defendants’ 8 motion for summary judgment; (5) denying “Plaintiff’s Ex Parte Request 9 to Continue Case 30 Days, etc.”; and (6) dismissing the action. 10 11 DATED: November 20, 2017. 12 13 14 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 The Court need not and does not reach any of the issues raised in Defendants’ motion for summary judgment other than the issues discussed herein. 26 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No notice of appeal pursuant to the

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