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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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MICHAEL WALDEN SMITH,
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) 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.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Valerie Baker Fairbank, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Plaintiff filed this civil rights action pursuant to 42 U.S.C.

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section 1983 on July 16, 2014.

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Defendants the Riverside County Superior Court, two Superior Court

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judges, a private attorney, and Plaintiff’s ex-wife who is the mother

The original Complaint named as

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of Plaintiff’s minor daughter.

Plaintiff asserted claims arising out

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of state court orders in family law proceedings declaring Plaintiff a

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vexatious litigant pursuant to California’s Vexatious Litigant Statute

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(“VLS”)1 and imposing a bond requirement.

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bond requirement prevented Plaintiff from filing an opposition to the

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mother’s application for a “move-away” order approving the mother’s

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move to Virginia with Plaintiff’s minor daughter.

According to Plaintiff, the

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On September 3, 2014, United States Magistrate Judge

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David T. Bristow screened the Complaint and issued an order dismissing

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the Complaint with leave to amend.

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filed a First Amended Complaint, naming the same Defendants and adding

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four new Defendants: the California Judicial Council, California

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Supreme Court Chief Justice Tami Cantil-Sakauye, former Judicial

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Council Administrative Director Steven Jahr and the presiding Justice

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of the California Court of Appeal, Fourth Judicial District, Manuel

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Ramirez.

On December 8, 2014, Plaintiff

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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).

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Wolfe v. Strankman, 392 F.3d 358, 360-61 (9th Cir. 2004).

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On January 20, 2015, Plaintiff filed a Second Amended Complaint,

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naming the same Defendants as those named in the First Amended

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Complaint, except for Defendant Jahr, and adding California Judicial

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Council Administrative Director Martin N. Hoshino.

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On February 3, 2015, Magistrate Judge Bristow issued a screening

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order dismissing the Second Amended Complaint with leave to amend.

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March 6, 2015, Plaintiff filed a Third Amended Complaint.

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2015, Magistrate Judge Bristow issued a screening order dismissing the

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Third Amended Complaint with leave to amend.

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On

On July 13,

On August 27, 2015,

Plaintiff filed a Fourth Amended Complaint.

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The Fourth Amended Complaint named as Defendants the California

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Judicial Council, California Supreme Court Chief Justice Tami Cantil-

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Sakauye, former Judicial Council Administrative Director Steven Jahr,

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current Judicial Council Administrative Director Martin N. Hoshino and

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Superior Court Judge Steven Counelis.

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Complaint, Plaintiff asserted the following ten claims for relief:

In the Fourth Amended

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Claim One: Defendants’ alleged application of the VLS to
Plaintiff assertedly violated Equal Protection.

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Claim Two: Defendants’ alleged application of the VLS to

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Plaintiff assertedly violated Due Process and the First Amendment

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right to petition.

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Claim Three: The VLS allegedly is vague and overbroad on its face
as applied to child custody cases.
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Claim Four: The VLS as applied to Plaintiff assertedly creates a

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prior restraint in alleged violation of the First Amendment right to

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petition;

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Claim Five:

Purported unwritten rules and procedures

implementing VLS prefiling orders allegedly violate Due Process.

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Claim Six:

The VLS purportedly functions as an improper bill of

attainder.

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Claim Seven:

The VLS assertedly functions as an improper Ex Post

Facto law.

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Claim Eight:

Defendant Superior Court Judge Counelis allegedly

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violated Plaintiff’s right to familial association, assertedly by

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issuing a “void” VLS order imposing a $25,000 bond on Plaintiff

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without a valid hearing, the effect of which assertedly was to deny

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Plaintiff the right to oppose a motion to move Plaintiff’s child to

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Virginia.

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Claim Nine:

Defendants assertedly applied the VLS to Plaintiff

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in alleged violation of Plaintiff’s rights to substantive and

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procedural due process under the California Constitution.

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Claim Ten:

Plaintiff allegedly is entitled to declaratory

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judgment and injunctive relief on the issue of whether the VLS as

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applied in Family Court, as opposed to civil court, violates “basic

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fundamental rights.”
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On September 30, 2015, Magistrate Judge Bristow screened the

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Fourth Amended Complaint and issued a Minute Order.

The Minute Order

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stated that: (1) because the doctrine of judicial immunity shields

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Judge Counelis from suit, the Fourth Amended Complaint failed to state

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a claim against Judge Counelis; and (2) the Fourth Amended Complaint

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stated a claim against the Judicial Council and Defendants Cantil-

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Sakauye, Jahr and Hoshino, in their administrative capacities, “at

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least at this initial stage of the proceedings.”

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gave Plaintiff the option to continue to pursue an action against

The Minute Order

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Judge Counelis by filing a Fifth Amended Complaint within thirty (30)

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days.

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choosing instead to pursue the action only against the other

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Defendants named in the Fourth Amended Complaint.

Plaintiff did not file a timely Fifth Amended Complaint,

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On January 7, 2016, Defendants Judicial Council, Cantil-Sakauye,

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Jahr and Hoshino filed a motion to dismiss the Fourth Amended

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Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

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Procedure.

Plaintiff filed opposition papers on February 19, 2016.

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On September 7, 2016, Magistrate Judge Bristow issued a Report

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and Recommendation recommending that the Court: (1) dismiss all claims

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against the Judicial Council and Defendant Jahr without prejudice;

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(2) dismiss the Equal Protection and Due Process claims contained in

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Claims One and Two to the extent those claims challenged the VLS as

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applied to all family court litigants; and (3) dismiss Claims Three,

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Five, Six, Seven and Ten with prejudice.

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Recommendation observed that the Court already had screened out Claim

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Eight in the September 30, 2015 Minute Order (Report and
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The Report and

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Recommendation filed September 7, 2016, at p. 9, n.3).

The Report and

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Recommendation further observed that Defendants had not moved to

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dismiss Plaintiff’s section 1983 claims for alleged violation of the

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First Amendment right to petition, alleged prior restraint or alleged

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violation of the California Constitution (id., p. 18, n.10).2

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Report and Recommendation stated that Plaintiff’s claims in Claims One

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and Two challenging the VLS as applied specifically to Plaintiff were

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sufficient to withstand the motion to dismiss and recommended that the

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Court order Defendants Cantil-Sakauye and Hoshino to file an Answer to

The

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the Fourth Amended Complaint with respect to the “as applied” claims

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asserted in Claims One and Two.

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On October 17, 2016, the District Judge issued an order adopting

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the Report and Recommendation, inter alia, ordering Defendants Cantil-

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Sakauye and Hoshino (the only remaining Defendants) to file an Answer

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to the surviving portions of Claims One and Two of the Fourth Amended

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Complaint.

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On November 23, 2016, Defendants Cantil-Sakauye and Hoshino

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(“Defendants”) filed an Answer to the Fourth Amended Complaint which

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denied Claims One and Two and asserted, inter alia, that Claim Four

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(alleged violation of First Amendment right to petition) and Claim

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Nine (alleged violations of California Constitution) had been

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dismissed in the October 17, 2016 Order.

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2

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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).
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On June 21, 2017, the case was transferred to the undersigned
Magistrate Judge.

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On July 28, 2017, Defendants filed a “Motion for Leave to File a

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First Amended Answer, etc.,” seeking leave to amend the Answer to add

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denials to Claims Four and Nine of the Fourth Amended Complaint in

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light of statements in Magistrate Judge Bristow’s Report and

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Recommendation indicating that Defendants had not moved to dismiss

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those claims.

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On August 11, 2017, Plaintiff filed an “Ex Parte Request to

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Continue Case 30 Days Due to Time Required to Complete Deposition of

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Chief Justice, etc.,” accompanied by two declarations of Plaintiff.

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On August 16, 2017, Defendants filed an opposition to the Ex Parte

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Application.

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Defendants’ Opposition to the “Ex Parte Application to Continue Case

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30 Days, etc.,” accompanied by various documents.

On August 29, 2017, Plaintiff filed a “Rebuttal” to

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On August 31, 2017, Plaintiff filed an opposition to Defendants’

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“Motion for Leave to File an Amended Answer, etc.,” accompanied by

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various documents.

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On September 5, 2017, Defendants filed a “Motion for Summary

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Judgment/Partial Summary Judgment or in the Alternative Dismissal of

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the Action for Lack of Subject Matter Jurisdiction” (the “motion for

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summary judgment”), accompanied by various documents and a request for

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judicial notice.

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///
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On September 7, 2017, Plaintiff filed “Plaintiff[’]s Request to

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File Document Two Days Past File Date Due to Mix-Up,” apparently

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seeking leave to file a belated response to Defendants’ “Motion for

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Leave to File a First Amended Answer, etc.”

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issued a Minute Order on October 11, 2017, indicating that the Court

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had permitted the filing of the opposition to the “Motion for Leave to

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File A First Amended Answer, etc.”

The Magistrate Judge

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On October 11, 2017, Plaintiff filed an “Ex Parte Request to

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Continue Case Four Days Due to Difficulties Experienced By Plaintiff

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When Arrested on Friday September 29th, 2017 By San Bernardino Police

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Department, etc.”3

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Opposition to Defendants’ Motion for Summary Judgment, accompanied by

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various documents.

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Plaintiff’s Opposition.

Also on October 11, 2017, Plaintiff filed an

On October 24, 2017, Defendants filed a Reply to

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DEFENDANTS’ MOTION TO FILE A FIRST AMENDED ANSWER

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Rule 15(a)(2) of the Federal Rule of Civil Procedure provides

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that a court “should freely give leave” to amend a pleading “when

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justice so requires.

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liberality.”

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654 F.3d 975, 985 (9th Cir. 2011), cert. denied, 565 U.S. 1200 (2012)

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(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.,

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3

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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.
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amendment of answer).

Defendants seek to amend the Answer to plead

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denials to certain claims due to an asserted lack of clarity in the

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Report and Recommendation with respect to the claims Defendants were

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required to answer.

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Answer, there is no indication that amendment would be futile, and

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there is no showing of undue delay, bad faith, dilatory motive or

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undue prejudice to Plaintiff.

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File a First Amended Answer should be granted.

Defendants have not previously amended the

See id.

Accordingly, the Motion to

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STANDARDS GOVERNING MOTION FOR SUMMARY JUDGMENT

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Summary judgment is appropriate if the evidence, viewed in the

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light most favorable to the nonmoving party, demonstrates that there

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is no genuine issue of material fact and that the moving party is

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entitled to judgment as a matter of law.

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party moving for summary judgment bears the initial burden of offering

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proof of the absence of any genuine issue of material fact.

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Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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burden is met, the party opposing the motion is required to go beyond

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the pleadings and, by the party’s own affidavits or by other evidence,

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designate “specific facts showing that there is a genuine issue for

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trial.”

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Inc., 454 F.3d 975, 987 (9th Cir. 2006).

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motion must submit evidence sufficient to establish the elements that

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are essential to that party’s case, and for which that party will bear

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the burden of proof at trial.

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322.

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///

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

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The Court must “view the facts in the light most favorable to the

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non-moving party and draw reasonable inferences in favor of that

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party.”

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2007).

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summary judgment is inappropriate.

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Productions, Inc., 454 F.3d at 988.

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the court does not make credibility determinations or weigh

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conflicting evidence.”

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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

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A factual dispute is “genuine” only if there is a sufficient

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evidentiary basis upon which a reasonable jury could return a verdict

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for the nonmoving party.

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242, 248 (1986).

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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.

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“Evidence may be offered ‘to support or dispute a fact’ on

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summary judgment only if it could be presented in an admissible form

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at trial.”

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925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-

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37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal

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quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona,

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Inc., 374 F.3d 840, 846 (9th Cir. 2004) (“Even the declarations that

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do contain hearsay are admissible for summary judgment purposes

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because they ‘could be presented in an admissible form at trial.’”)

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(citations omitted).

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summary judgment.

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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

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1

denied, 565 U.S. 1200 (2012).

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SUMMARY OF EVIDENCE4

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On April 14, 2000, Plaintiff filed a petition for dissolution of

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his marriage in the Riverside County Superior Court (Defendants’ Ex.

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1, p. 3).

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December 1, 1999 (Defendants’ Ex. 11, Requests for Admission No. 58;

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Defendants’ Ex. 12, Responses to Requests for Admission No. 58).

Plaintiff is the father of a minor daughter, born on

More

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than a decade of state court litigation followed, including litigation

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concerning the custody of Plaintiff’s daughter.

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himself during most of the state court litigation.

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the challenged vexatious litigant bond order, the state court case

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file comprised twenty-seven volumes (see Defendants’ Ex. 2, p. 84).

Plaintiff represented
As of the date of

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On May 7, 2004, Plaintiff’s ex-wife (the child’s mother), Juvelyn

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Smith (“Juvelyn”), filed a motion for imposition of a vexatious

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litigant sanction against Plaintiff (Defendants’ Ex. 1, p. 149).

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Plaintiff filed opposition to the motion (Defendants’ Ex. 4).

On

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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.
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July 8, 2004, the court denied the motion without prejudice for

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failure to effect proper service of the motion, but granted Juvelyn

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leave to file an amended motion (Defendants’ Ex. 1, pp. 166-67, 169;

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Defendants’ Ex. 5).

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(Defendants’ Ex. 1, p. 170; Defendants’ Ex. 6).

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at which Plaintiff was present and argued, the court issued an order

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on September 9, 2004, declaring Plaintiff a vexatious litigant and

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“preventing Michael Walden Smith from filing any new litigation in the

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courts of this state in propria persona without first obtaining leave

Juvelyn filed an amended motion on July 26, 2004
Following a hearing

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of the Presiding Judge of the court where the litigation is supposed

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to be filed” (Defendants’ Ex. 1, pp. 173-74; Defendants’ Ex. 7).

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order further prohibited Plaintiff “from filing any motions/orders to

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show cause and ex parte filings in this action in propria persona

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without first obtaining leave of the Presiding Judge” (Defendants’ Ex.

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1, p. 174).

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time (id., p. 173).

The

The court declined to impose a bond requirement at that

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During a hearing on March 9, 2012, however, the court described

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the history of Plaintiff’s filings during the years of litigation, and

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the court then ordered that Plaintiff would be required to post a

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$25,000 bond before making any further filings with the court

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(Defendants’ Ex. 2, pp. 89-91; Defendants’ Ex. 8).

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On June 18, 2012, Juvelyn filed an application for a “move-away”

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order seeking leave to move to Virginia with the child (Defendants’

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Ex. 1, p. 92).

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because the application had been filed by an attorney who was not

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counsel of record, it appears the court subsequently permitted the

Although the court initially rejected this application

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substitution of counsel and set a hearing on the application for

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July 10, 2012 (see Defendants’ Ex. 2, pp. 92-93).

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4

On July 3, 2012, Plaintiff submitted for filing a “Notice of

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Motion/Responsive Declaration, etc.,” opposing Juvelyn’s application

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for a “move away” order (id., p. 95; Deposition of Michael Walden

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Smith, Respondent’s Lodgment 13, Ex. 5 thereto; Plaintiff’s Ex. 10).

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The court clerk rejected Plaintiff’s document for filing because

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Plaintiff had not posted a bond as required by the court’s March 9,

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2012 order (Defendants’ Ex. 2, p. 95; Declaration of Michael Walden

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Smith, Respondents’ Lodgment 13, Ex. 6 thereto).

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the case was rejected for filing due to Plaintiff’s failure to satisfy

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the bond requirement (Deposition of Michael Walden Smith, Defendants’

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Ex. 13, pp. 59-60).

No other document in

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Plaintiff appeared at the hearing on July 10, 2012, and presented

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argument objecting to Juvelyn’s request to move the child to Virginia

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(Defendants’ Ex. 9).

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leave for Juvelyn to move the child to Virginia (Defendants’ Ex. 2, p.

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96; Defendants’ Ex. 9).

Over Defendant’s objection, the court granted

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Thereafter, Plaintiff requested an order vacating the move-away

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order and the vexatious litigant order, including the bond requirement

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(Defendants’ Ex. 10; Deposition of Michael Walden Smith, Defendants’

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Ex. 13, at pp. 88-89, Ex. 12 thereto; Plaintiff’s Ex. 15).

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hearing on November 16, 2012, the court denied Plaintiff’s requests

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(id.).

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///
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At a

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Plaintiff filed a petition for mandate in the California Court of

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Appeal inter alia challenging the vexatious litigant bond order

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(Defendants’ Ex. 11, Requests for Admission Nos. 32, 33; Defendants’

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Ex. 12, Responses to Requests for Admission Nos. 32, 33).

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of Appeal denied the petition, stating that Plaintiff had “failed to

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make any legally cognizable argument supporting his contentions that

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the superior court abused its discretion and violated due process in

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permitting his former spouse to move out of state with their child and

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that the vexations litigant statute is unconstitutional” (Plaintiff’s

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The Court

Ex. 12).

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12

Plaintiff filed a petition for mandate in the Court of Appeal

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inter alia challenging the Superior Court’s July 10, 2012 orders

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(Defendants’ Ex. 11, Requests for Admission Nos. 41 and 42;

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Defendants’ Ex. 12, Responses to Requests for Admission Nos. 41 and

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42).

The Court of Appeal denied the petition (id.).

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At a hearing before the Superior Court on January 14, 2013,

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Plaintiff agreed to a stipulation allowing his daughter to live with

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Juvelyn in Virginia (Defendants’ Ex. 2, p. 102).

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March 18, 2013, Plaintiff again stipulated to allow the child to

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continue to reside in Virginia (Deposition of Michael Walden Smith,

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Defendants’ Ex. 13, p. 171).

At a hearing on

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In November of 2014, at the conclusion of a two-day trial, the

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Superior Court issued a judgment awarding joint legal custody to

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Plaintiff and Juvelyn, with physical custody to Juvelyn and visitation

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to Plaintiff (Defendants’ Ex. 2, pp. 139-40; Defendants’ Ex. 14).
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1

DISCUSSION

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3

I.

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As the Court Previously Ruled, Plaintiff’s Facial Challenges to
the VLS Lack Merit.

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6

Despite this Court’s previous dismissal of Plaintiff’s claims

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asserting facial challenges to the VLS, Plaintiff persists in arguing

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those claims in his papers opposing summary judgment (see e.g.,

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“Memorandum of Points and Authorities in Support of Plaintiff’s

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Opposition to Defendants’ Motion for Summary Judgment”).

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Magistrate Judge Bristow explained in his Report and Recommendation

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(which the Court adopted), Plaintiff’s facial Due Process and Equal

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Protection claims, his facial claims of alleged overbreadth and

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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

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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

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20

II.

This Court Lacks Jurisdiction Over Plaintiff’s “Aa Applied”

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Challenges5 to the State Court’s Custody and Vexatious Litigant-

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Related Determinations.

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24

Under the “Rooker-Feldman” doctrine, a federal district court

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lacks subject matter jurisdiction to review final state court

26

decisions.

See District of Columbia Court of Appeals v. Feldman, 460

27
5

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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).

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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

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the federal court plaintiff seeks to relitigate in a federal forum,

20

even if other issues remain pending at the state level.”

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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

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23
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In Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), after the
state court rescinded a previously issued VLS prefiling order, the

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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