Look v. Harris et al

Filing 46

ORDER by Judge Charles R. Breyer granting 17 Motion to Dismiss; granting 22 Motion to Dismiss. (crblc1, COURT STAFF) (Filed on 1/24/2017)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 WILLIAM B. LOOK, JR., Plaintiff, 12 ORDER GRANTING MOTIONS TO v. 13 14 No. C 16-5465 CRB DISMISS KAMALA HARRIS et al., Defendants. 15 / 16 Pro se Plaintiff William B. Look, a California lawyer, has brought suit against the 17 18 State Bar, several of its employees (collectively, “the State Bar Defendants”),1 and Attorney 19 General Kamala Harris (“Harris”) in connection with state disciplinary proceedings. See 20 generally Compl. (dkt. 1). The State Bar Defendants and Harris separately move to dismiss. 21 See generally Harris MTD (dkt. 17); Bar MTD (dkt. 22).2 As discussed below, the Court 22 GRANTS both motions. 23 I. 24 25 BACKGROUND Judge Koh referred Look to the State Bar. See Von Haar v. City of Mountain View, No. 10-cv-02995-LHK, 2012 WL 5828511 (N.D. Cal. Nov. 15, 2012). On July 9, 2014, the 26 1 27 28 The State Bar Defendants are the California State Bar, Catherine D. Purcell, Terese Laubscher, Alma Cueto, Terrie Goldade, and Tracey McCormick, as well as Does 1-100. 2 Look filed an untimely and improper “Supplemental Memorandum of Law in Opposition to State Bar Defendants’ Rule 12(B) Motion,” in which he asks the Court to bifurcate the issue of the constitutionality of Cal. Bus. & Prof. Code § 6103. See Supp. Opp’n (dkt. 30). The Court DENIES this request. 1 California Supreme Court disciplined Look, and ordered him to take and pass the Multistate 2 Professional Responsibility Exam (MPRE). See Compl. ¶ 14. Look alleges that the State 3 Bar gave him two years to comply. Id. Look passed the MPRE on March 28, 2015, and the 4 company administering the exam transmitted the results to the State Bar in May 2015. Id. 5 Nevertheless, on September 17, 2015, State Bar employee Laubscher sent a letter directly to 6 State Bar employee Purcell, an administrative hearing officer of the Review Department of 7 the State Court Bar, for the purposes of securing an “automatic suspension.” Id. ¶ 18. Look 8 alleges that the letter represented that he had not taken or passed the MPRE. Id. In fact, the 9 letter stated that Look had not “filed with the Office of Probation proof of successful United States District Court For the Northern District of California 10 completion of the [MPRE].” See RJN (dkt. 23) Ex. 4 (9/17/2015 Laubscher letter).3 Look 11 objected, notifying the Review Department on September 21, 2015, that he had in fact taken 12 and passed the MPRE. Compl. ¶ 19. 13 On September 25, 2015, without any notice or hearing, Purcell issued an order stating 14 that Look had failed to take and pass the MPRE, and suspending Look from practicing law. 15 Id. ¶ 20. Look alleges that no evidence supported this decision, and that in fact the State Bar 16 had in its possession records demonstrating that he had passed the MPRE. Id. ¶ 21. Look’s 17 suspension ran from October 19, 2015 to April 19, 2016, when the Review Department 18 vacated the order. Id. ¶ 22. Look was unable to earn a living practicing law during that time. 19 Id. In addition, from October 19, 2015 until the present, the State Bar has falsely published 20 on its website that Look acted unethically in failing to take the MPRE. Id. ¶ 23. 21 On September 30, 2015, Look attempted to invoke California Rule of Court 9.13 and 22 seek review in the California Supreme Court. Id. ¶ 27. All of his papers were returned as 23 unfiled, and the Court directed him to seek review in the Review Department. Id. ¶ 28. Look 24 also sent a letter to Harris, alerting her to the conspiracy he believed was afoot. Id. ¶ 27. 25 Harris returned that letter to him for lack of jurisdiction, explaining that the State Bar was an 26 arm of the California Supreme Court. Id. ¶ 28. Look endeavored to obtain the copy of his 27 3 28 Look objects to the Court taking judicial notice of any of the documents Defendants submitted, see Objection to RJN (dkt. 25), but his Complaint explicitly referenced the letter, and so it is judicially noticeable, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 2 1 MPRE record, which he contends was in the possession of the State Bar, but no record was 2 ever disclosed. Id. ¶ 30. Look brought suit in this Court in September 2016, alleging (1) Denial of substantive 3 4 due process by imposition of licensing sanction based on administrative falsehood; (2) 5 Willful violation of his civil rights under 42 U.S.C. § 1983; (3) Civil and criminal conspiracy 6 to deny him due process under 42 U.S.C. § 1945 (the Court presumes that he means 42 7 U.S.C. § 1985); (4) Failure to prevent violation of civil rights by failure to disclose 8 exculpatory evidence under 42 U.S.C. § 1946 (the Court presumes that he means 42 U.S.C. 9 § 1986); (5) Denial of due process and equal protection under the law pursuant to 18 U.S.C. § United States District Court For the Northern District of California 10 241; (6) Denial of due process and equal protection under the law pursuant to 28 U.S.C. 11 § 1983 (the Court presumes that he means 42 U.S.C. § 1983); and (7) seeking declaratory 12 relief. See generally id. Harris and the State Bar defendants move to dismiss. See generally Harris MTD; Bar 13 14 MTD. 15 II. 16 LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a 17 federal court’s subject matter jurisdiction. “A federal court is presumed to lack jurisdiction 18 in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. 19 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The party invoking federal 20 jurisdiction bears the burden of establishing that such jurisdiction exists. See Kokkonen v. 21 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asserts that the 23 complaint fails to state a claim upon which relief may be granted. Dismissal may be based 24 on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged 25 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 26 Cir. 1990). For purposes of evaluating a motion to dismiss, a court “must presume all factual 27 allegations of the complaint to be true and draw all reasonable inferences in favor of the 28 nonmoving party.” Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). A complaint 3 1 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads 3 factual content that allows the court to draw the reasonable inference that the defendant is 4 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 5 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements, do not suffice.” Id. 7 III. 8 9 DISCUSSION Defendant Kamala Harris and the State Bar Defendants have each filed a motion to dismiss the complaint. United States District Court For the Northern District of California 10 A. 11 The Court grants Harris’s motion to dismiss because it correctly argues that Look has 12 13 Harris Motion to Dismiss no standing to bring his claim against her. See Harris MTD at 4. To have standing to sue in federal court, a plaintiff must satisfy three elements: (1) an 14 injury in fact; (2) a causal connection between the injury and the defendant’s conduct, and (2) 15 a likelihood that the injury will be redressed by a favorable decision. See Lujan v. Defenders 16 of Wildlife, 504 U.S. 555, 560 (1992). The party invoking the federal court’s jurisdiction has 17 the burden of establishing these elements. Id. Harris argues that Look does not meet his 18 burden on the element of redressability. Harris MTD at 4. 19 Look complains in this case about the past injury of having had his law license 20 suspended. See Compl. ¶ 20. He also complains that Harris did not help him when the State 21 Bar suspended his license. See id. ¶¶ 27–28. But the only claim in the Complaint against 22 Harris is for declaratory relief. See id. ¶¶ 76–86. Look seeks a declaration that the Attorney 23 General, “as the executive officer charged with enforcing the law of the State of California, 24 has an affirmative duty to enforce the California State Bar Act . . . and the due process rights 25 of attorneys” in the disciplinary process. Id. ¶ 77. He also seeks a declaration that the 26 Attorney General has a duty to protect attorneys from discrimination and unequal practices of 27 the State Bar. Id. Look further seeks a declaration that the creation of the California State 28 Bar and the enactment of the California State Bar Act was an exercise of the Legislative 4 1 Power, not the Judicial Power, and therefore the Attorney General has the power and 2 authority to enforce the State Bar Act. Id. ¶ 78.4 These declarations would not redress 3 Look’s injury. 4 “A plaintiff who has standing to seek damages for a past injury, or injunctive relief for 5 an ongoing injury, does not necessarily have standing to seek prospective relief such as a 6 declaratory judgment.” Mayfield v. U.S., 599 F.3d 964, 969 (9th Cir. 2010). A declaration 7 that the California Attorney General is obligated to act in a certain way going forward does 8 not redress Look’s injury of having had his license suspended— it neither restores his license 9 nor compensates him for its temporary loss. Nor could it impact Harris’s failure to help Look United States District Court For the Northern District of California 10 when his license was suspended, as that event is in the past. See Villegas v. U.S., 926 F. 11 Supp. 2d 1185, 1199 (E.D. Wash. 2013) (explaining that declaratory relief is “‘essentially an 12 equitable cause of action,’ which the Court may ‘grant or withhold . . . on the basis of 13 traditional equitable principles’” and that “Plaintiff lacks standing to seek equitable relief for 14 wholly-past injuries.”). 15 The only way that Look would have standing is if he could point to a significant 16 possibility of future harm. See San Diego Cty. Gun Rights Committee v. Reno, 98 F.3d 17 1121, 1126 (9th Cir. 1996) (“Because plaintiffs seek declaratory relief . . . there is a further 18 requirement that they show a very significant possibility of future harm; it is insufficient for 19 them to demonstrate only a past injury.”); Lujan, 504 U.S. at 564 n.2 (requiring “that the 20 injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a 21 case in which no injury would have occurred at all.”). The Complaint does not do so. In his 22 opposition brief, Look argues that “Plaintiff will be injured if, in [the] future, further actions 23 by the State Bar of California (alleged to exceed its statutory authority or to be unlawful) 24 continue as a result of inaction by the Attorney General.” Opp’n to Harris MTD (dkt. 18) at 25 13. But that claimed injury is too speculative. He also asserts in his opposition brief: “the 26 underlying dispute with the State Bar is still ‘live’ and plaintiff was forced to give warning in 27 28 4 Look additionally seeks various declarations regarding the operation of the State Bar, which are unrelated to the Attorney General. See id. ¶¶ 79–86. 5 1 October to the State Bar that he would seek injunctive relief if the Office of Probation 2 attempted to pursue another false claim of a probation violation, a threat that originated with 3 defendant Laubscher after the complaint in this case was filed.” Id. at 13. The dispute Look 4 mentions in his opposition brief is too speculative to confer standing. See Lujan, 504 U.S. at 5 560 (requiring “concrete and particularized,” not “conjectural or hypothetical,” injury). 6 7 Because Look does not complain of a redressable injury caused by Harris, he lacks standing, and his lone claim against Harris is DISMISSED. 8 B. State Bar Defendants Motion to Dismiss 9 The State Bar Defendants move to dismiss on several bases. Pursuant to Rule United States District Court For the Northern District of California 10 12(b)(1), they argue that the Court should dismiss the Complaint under the Eleventh 11 Amendment and under Rooker-Feldman.5 Pursuant to Rule 12(b)(6), they argue that the 12 Complaint fails to state a claim for a variety of reasons. The Court addresses the dismissal 13 arguments as to both types of Bar defendant separately. 1. 14 15 State Bar Itself In the absence of consent, the Eleventh Amendment prohibits a plaintiff from suing 16 the state in federal court. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 17 (1984). That prohibition applies regardless of the relief sought. Id. The Ninth Circuit has 18 recognized that the State Bar is a “state agency” for the purposes of sovereign immunity. 19 See Hirsh v. Justices of the Sup. Ct. of Cal., 67 F.3d 708, 715 (9th Cir. 1995). Although 20 Look contends that the State Bar has waived its sovereign immunity by agreeing to sue and 21 be sued, see Compl. ¶ 10, Opp’n to Bar MTD (dkt. 29) at 4, he cites to no authority for this, 22 see also Ramos v. Cal. Comm. of Bar Examiners of State Bar of Cal., 857 F. Supp. 702, 705 23 24 25 26 27 28 5 The Court does not dismiss on the basis of Rooker-Feldman. Another court in this district explained in a similar case that Rooker-Feldman did not apply when an attorney was not actually seeking relief from the California Supreme Court decision disbarring him (i.e., he was not seeking readmission or reinstatement), but was seeking damages from the Bar and its employees “for alleged wrongs committed by these actors against him.” See Khanna v. State Bar of Cal., 505 F. Supp. 2d 633, 642 (N.D. Cal. 2007) (explaining that such an “attack is collateral, not frontal.”). Look here is not trying to reverse an order of the California Supreme Court (after all, his suspension has already been lifted); instead, he is suing the State Bar and its employees for alleged wrongs committed against him. He is therefore not a state court loser barred by Rooker-Feldman. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S.Ct. 1517, 1521–22 (2005). 6 1 (N.D. Cal. 1994) (rejecting argument that Cal. Bus. Code § 6001, which provides that Bar 2 “may sue and be sued,” is a waiver of Eleventh Amendment rights). Accordingly, the Court 3 DISMISSES Look’s claims against the State Bar pursuant to the Eleventh Amendment. 2. 4 a. 5 6 State Bar Employees 12(b)(1) Arguments State officials acting in their official capacities are also immune from suit under the 7 Eleventh Amendment. Hirsh, 67 F.3d at 715. This is because a suit against state officials is 8 in fact a suit against a state. Pennhurst, 465 U.S. at 101–02. Look sued the individual Bar 9 employees in their individual capacities, and only in their official capacities as applicable to United States District Court For the Northern District of California 10 11 the declaratory relief claim. See Compl. ¶¶ 11–13. While the Eleventh Amendment does not prevent suits for declaratory judgment 12 against state officials acting in their official capacity under Ex Parte Young, 209 U.S. 123 13 (1908), the Ex Parte Young doctrine applies only to prospective relief, Summit Med. 14 Associates. P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999). The Complaint here does 15 not pertain to a present violation of federal law; it pertains to Defendants’ allegedly 16 unconstitutional past acts. See Semiole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996); 17 Compl. ¶¶ 14–36. There is no ongoing discipline as the State Bar lifted Look’s suspension. 18 See Compl. ¶ 36. Accordingly, Ex Parte Young does not apply and the Court DISMISSES 19 the claim for declaratory relief against the Bar employee defendants pursuant to the Eleventh 20 Amendment. 21 The Court, however, rejects the State Bar Defendants’ argument that, despite Look’s 22 conclusory labeling, the other claims against the individual defendants are official capacity 23 claims, and therefore also barred by the Eleventh Amendment. See Bar MTD at 6; Hirsh, 67 24 F.3d at 715. In determining whether a suit is an individual or official capacity suit, courts are 25 to consider the essential nature of the proceeding. See Eaglesmith v. Ward, 73 F.3d 857, 859 26 (9th Cir. 1995). The Complaint here attributes some of Defendants’ actions to a policy of the 27 Bar but also seems to complain of malfeasance independent of any Bar policy. See, e.g., 28 Compl. ¶¶ 25, 40, 43, 50. The Court cannot conclude that the individual Bar employee 7 1 defendants are being sued simply for doing their jobs. Accordingly, the Eleventh 2 Amendment only bars the declaratory relief claim against the individual Bar employees. 3 4 As discussed above, the Court also rejects the argument for dismissal on the basis of Rooker-Feldman. b. 5 6 The individual Bar Defendants’ efforts under Rule 12(b)(6) are more successful.6 i. 7 8 9 12(b)(6) Arguments Failure to State a Claim As an initial matter, the argument that the Complaint fails to state a claim under 42 U.S.C. §§ 1985 and 1986 is correct. See Bar MTD at 14–15. These sections require “some United States District Court For the Northern District of California 10 racial, or perhaps otherwise class-based, invidiously discriminatory animus,” and there are no 11 such allegations in the Complaint. See United Broth. of Carpenters & Joiners of Am., Local 12 610, AFL-CIO v. Scott, 463 U.S. 825, 835 (1983); see generally Compl. Defendants are also 13 correct that 18 U.S.C. § 241 is a criminal statute with no private right of action. See Bar 14 MTD at 15; Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). 15 Accordingly, the Court DISMISSES the third, fourth and fifth causes of action for failing to 16 state a claim. ii. 17 18 Res Judicata The individual Bar Defendants’ argument under res judicata is also persuasive. 19 “Whether a prior state court judgment precludes relitigation of an identical claim in federal 20 court depends on the preclusion rules of the state.” Gupta v. Thai Airways Int’l, Ltd., 487 21 F.3d 759, 765 (9th Cir. 2007). In California, courts apply res judicata where “(1) A claim or 22 issue raised in the present action is identical to a claim or issue litigated in a prior 23 proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the 24 party against whom the doctrine is being asserted was a party or in privity with a party to the 25 prior proceeding.” People v. Barragan, 32 Cal. 4th 236, 253 (2004). A party may not re- 26 litigate issues that were or could have been raised in a previous action. Takahashi v. Bd. of 27 6 28 Not all of them; the argument that the individual Bar defendants are not persons subject to suit depends on the Court’s concluding that the State Bar defendants are sued in their official capacity, see Bar MTD at 13, and therefore fails. 8 1 2 Educ. of Livingston Union Sch. Dist., 202 Cal. App. 3d 1464, 1481 (1988). The Bar Defendants argue that the California Supreme Court’s November 10, 2015 judgment was final and on the merits, that the issues raised in both proceedings are identical, 4 and that the party against whom the doctrine is being asserted (Look) is identical. Bar MTD 5 at 12. The second two elements are met and undisputed—Look was a party to the prior 6 proceeding, and in the prior proceeding he raised the same issues as in this case. See, e.g.. 7 RJN (dkt. 23) Ex. 87 (Request for Stay of Ultra Vires Sua Sponte Order of Suspension by 8 Review Department of State Bar Court) ¶ 4 (“based on an ex parte letter. . . . contrary 9 evidence of Petitioner’s verified Petition and sworn statements that show Petitioner did take 10 United States District Court For the Northern District of California 3 the MPRE. . . . actually alleging is that Petitioner was tardy in reporting the MPRE results. . . 11 . the Order was in error in suspending Petitioner for tardy report of the examination.”); ¶ 6 12 (“unlawful and collusive ex parte procedure employed by the Probation Department and the 13 Review Department, over Petitioner’s attempt to object, before the Review Department 14 issued its 9/25/15 order of suspension sua sponte . . . based on nothing more than an unsworn 15 ex parte communication from the Probation Office.”); ¶ 7 (“State Bar has also posted 16 reference to the Order on the website with the indication Petitioner is not authorized to 17 practice.”); ¶ 9 (“production of the examination report in its possession . . . simply accessed 18 the report of the examination results already in their actual or constructive possession”); 19 ¶ 13(C) (“without a prior hearing on facts contradicted by exculpatory evidence in the 20 possession of the State Bar”). 21 Look disputes that the first element is met, arguing that “there was no final state 22 action.” See Opp’n at iii, 12–15. He contends that “there was no California Supreme Court 23 Review and there were no findings of fact rendered in the Review Department to support 24 either action, the 9/25/2015 Order or the denial of Petitioner’s Motion on the ambiguous 25 26 27 28 7 Look argues that the Court should not take judicial notice of the filings in his disciplinary proceedings. See Objection to RJN (dkt. 25). The Court denies this objection, as the documents are public records and many are referenced in his Complaint. See Tellabs, Inc., 551 U.S. at 322 (documents referenced in complaint); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (matters of public record); see also State Bar Opp’n to Objection to RJN (dkt. 28) at 3–5 (recounting references in the Complaint). The Court does not take notice of the underlying facts. 9 1 grounds of lack of ‘good cause.’” Id. at 13. Look provides no authority for his suggestion 2 that the Review Department must make findings of fact in order for the Supreme Court’s 3 review to have preclusive effect.8 To the extent that he contends that the Supreme Court’s 4 order was not final because it was so brief, he provides no authority for that contention and 5 the law is to the contrary, see In re Rose, 22 Cal. 4th 430, 448 (2000) (summary denial is still 6 a final judicial determination on the merits for purposes of establishing re judicata); see 7 also Khanna, 505 F. Supp. 2d at 649 (“The ruling of the California Supreme Court disbarring 8 Mr. Khanna, even though summary, is on the merits.”). If what Look intends to argue is that there was no final determination because he did 10 United States District Court For the Northern District of California 9 not appeal the Review Department’s order to the California Supreme Court, he is mistaken. 11 On October 27, 2015, the Bar’s Review Department denied Look’s motion to vacate the 12 September 25, 2015 order suspending him from the practice of law. See RJN Ex. 7. That 13 same day, Look filed with the California Supreme Court a “Request for Stay of Ultra Vires 14 Sua Sponte Order of Suspension by Review Department of State Bar Court,” which he 15 identified as having been “Filed in aid of Petition from an ex Parte Order of the Review 16 Department Of the State Bar Imposing a Suspension under Rule 9.10(b) on 9/25/15.” See 17 RJN Ex. 8. That motion stated that because Look was unclear what rules applied in his case, 18 he was resubmitting his request for relief from the ex parte order. Id. at 1 (“the original 19 Petition is resubmitted with this Request. . . In an excess of caution lest the 14 day deadline 20 be treated as jurisdictional, Petitioner resubmits the Petition within 14 days.”). The 21 California Supreme Court treated the motion as a petition for review by denying the stay. 22 See RJN Ex. 9. The Complaint concedes that the California Supreme Court returned a 23 subsequent attempt at a petition for review in November 2015, “stating the case was closed.” 24 See Compl. ¶ 35. 25 As the individual Bar defendants point out, if Look is correct that the California 26 27 28 8 The Review Department’s order was short, though it noted that “respondent has not passed the Multistate Professional Responsibility Examination within the time prescribed in the Supreme Court order filed July 9, 2014” and, “[f]inding no good cause,” it denied the motion for relief from the September 25, 2015 order. See RJN Ex. 7 (Review Dept. Order). 10 Supreme Court’s November 10, 2015 order is not final, then the Review Department’s 2 October 27, 2015 order is final. See Cal. Bus. & Prof. Code § 6084(a) (“When no petition to 3 review or to reverse or modify has been filed by either party within the time allowed therefor 4 . . . the decision or order of the State Bar Court shall be final and enforceable.”).9 The Bar 5 defendants also note that Look’s argument that “[t]he very fact that the Review Department 6 reversed its original Order in April 2016 . . . shows it was not a final determination,” Opp’n 7 to Bar MTD at 14, improperly characterizes the April 2016 order as a reversal. See Reply re 8 Bar MTD (dkt. 32) at 14 n.9. The April 2016 Order terminated Look’s suspension, stating 9 that the State Bar received evidence that Look complied with the conditions of his probation. 10 United States District Court For the Northern District of California 1 See RJN Ex. 11 (4/21/16 Review Dept. Order) (“On April 12, 2016, the Office of Probation 11 of the State Bar notified the court that respondent has submitted proof that he passed the 12 [MPRE].”). 13 Because there was a final judgment, the issues raised are identical, and the party 14 against whom preclusion is sought is identical, res judicata applies. See Khanna, 505 F. 15 Supp. 2d at 648 (holding that collateral estoppel barred claims against State Bar employees). 16 The Court DISMISSES counts one through five against the individual State Bar employees 17 for this reason. iii. 18 19 Judicial and Quasi-Judicial Immunity The individual Bar employees are also correct that they are entitled to judicial or 20 quasi-judicial immunity. The federal common law doctrine of judicial immunity precludes 21 suits against state bar employees when such actions are based on alleged wrongdoing in the 22 course of administering attorney discipline in a court-like manner. See Hirsh, 67 F.3d at 715 23 (“The Bar Court judges and prosecutors have quasi-judicial immunity from monetary 24 25 26 27 28 9 This alternative ground would preclude the Court from holding that the State Bar took no “state action” under counts 1–4 and 6, as the State Bar Defendants argue, see Bar MTD at 13–14 (“the State Bar does not actually impose any discipline, but only makes recommendations to the California Supreme Court.”), but that argument fails anyway. The cases the State Bar Defendants cite in support on this point all relate to the power of the State Bar to “grant or deny admission to the bar,” which is not at issue here. See id. (citing Chaney v. State Bar of Cal., 386 F.2d 962, 966 (9th Cir. 1967); Margulis v. State Bar of Cal., 845 F.2d 215, 216–17 (9th Cir. 1988); Giannini v. Comm. of Bar Examiners, 847 F.2d 1434, 1435 (9th Cir. 1988)). 11 1 damages. . . . so long as they perform functions similar to judges and prosecutors in a setting 2 like that of a court.”). A “prosecuting attorney, as a quasi-judicial officer, enjoys immunity 3 from suit . . . insofar as his prosecuting functions are concerned.” See Clark v. Wash., 366 4 F.2d 678, 681 (9th Cir. 1966). Look argues, correctly, that the State Bar employees should not be entitled to 5 6 immunity for their administrative functions: 7 The myriad of non-judge employees of the California State Bar include door security, clerical and investigative staff personnel, phone bank operators, the publishing staff of its journal and webpages, as well as attorney employees and its governing board and its staff. Few of their job functions have a common law anologue traditionally accorded immunity. 8 9 United States District Court For the Northern District of California 10 Opp’n to Bar MTD at 9. The problem with his argument is that his Complaint complains not 11 of phone bank operators performing administrative functions but of a judge and lawyers 12 performing legal functions. Although the allegations in the Complaint are difficult to track, 13 the individual Bar defendants are accused of the following: 14 • Laubscher (a “probation ‘deputy’”) submitted to Purcell an unsworn ex parte 15 communication, falsely asserting that Look had not taken the MPRE. Compl. ¶¶ 12, 16 18. Laubscher then refused to produce to Look the records showing that he really had 17 passed the MPRE. Id. ¶ 32. Laubscher subsequently submitted a second ex parte 18 communication admitting that Look had taken and passed the MPRE. Id. ¶ 36. 19 Laubscher engaged in a conspiracy with the other individual defendants to harass 20 Look and “engender a probation violation.” Id. ¶ 53. 21 • Purcell (a “Judge of the Review Department”) issued a sua sponte order stating that 22 Look had failed to take and pass the MPRE and suspending him from the practice of 23 law. Id. ¶¶ 11, 20. Purcell engaged in a conspiracy with the other individual 24 defendants to harass Look and “engender a probation violation.” Id. ¶ 53; see also id. 25 ¶ 58 (“Whatever her role before . . . Purcell became a knowing part of the foregoing 26 conspiracy.”). 27 • Cueto (a “supervising attorney”) refused to produce to Look the records showing that 28 he really had passed the MPRE. Id. ¶¶ 12, 32. Cueto engaged in a conspiracy with 12 1 the other individual defendants to harass Look and “engender a probation violation.” 2 Id. ¶ 53. 3 • Goldade (a “supervising attorney”) refused to produce to Look the records showing 4 that he really had passed the MPRE. Id. ¶¶ 12, 32. Goldade engaged in a conspiracy 5 with the other individual defendants to harass Look and “engender a probation 6 violation.” Id. ¶ 53. 7 • McCormick (an “employee of the Office of State Bar Trial Counsel” and “attorney 8 employed within . . . [the] State Bar Trial Counsel’s Office”) refused to produce to 9 Look the records showing that he really had passed the MPRE. Id. ¶¶ 12, 30, 32. United States District Court For the Northern District of California 10 There is no doubt that Look is suing Purcell, a State Bar judge, for performing 11 functions similar to judges in a court—issuing an order suspending Look in a disciplinary 12 proceeding is much like issuing an order sentencing a defendant in a court. See Hirsh, 67 13 F.3d at 715. Purcell is even immune from the allegation that she engaged in a conspiracy. 14 See Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (“conspiracy between judge and 15 prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, 16 nevertheless does not pierce the immunity extended to judges and prosecutors.”); see also 17 Wolfgram v. State Bar of Cal., 91 F.3d 158 (9th Cir. 1996) (State Bar judge has quasi- 18 judicial immunity from monetary damages); Khanna, 505 F. Supp. 2d at 646 (applying 19 common law judicial immunity to State Bar judge in case involving allegations “that she was 20 doing all that she could to decide the case in a particular way—i.e., against him”). 21 Look’s allegations against Laubscher, Cueto, Goldade and McCormick essentially 22 involve failing to turn over exculpatory evidence, and conspiring against Look with Purcell. 23 But prosecutors also have immunity from conspiring, see Ashelman, 793 F.2d at 1078, and in 24 the Ninth Circuit “[a] prosecutor’s decision not to preserve or turn over exculpatory material 25 before trial, during trial, or after conviction,” while a Brady violation, is “an exercise of the 26 prosecutorial function and entitles the prosecutor to absolute immunity from a civil suit for 27 damages,” see Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003). The additional 28 allegation as to Laubscher is that she initiated the lawsuit by falsely claiming that Look had 13 1 not passed the MPRE. See Compl. ¶ 18. But initiating a lawsuit is also a prosecutorial act 2 protected by quasi-judicial immunity. See Imber v. Pachtman, 424 U.S. 409, 424–31 (1976) 3 (“in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from 4 a civil suit for damages.”); see also Broam, 320 F.3d at 1029–30 (recognizing immunity for 5 failing to investigate accusations against a defendant before filing charges, and immunity 6 from knowing use of false testimony at trial). The Complaint complains of actions the individual Bar defendants took that are akin 7 8 actions taken by judges and prosecutors in court. Accordingly, they are entitled to immunity 9 and the Court DISMISSES counts one through five against them.10 United States District Court For the Northern District of California 10 IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS both motions with prejudice. 12 IT IS SO ORDERED. 13 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE Dated: January 24, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 The declaratory relief claim is also dismissed because 28 U.S.C. § 2201 does not provide an independent basis for jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). The declaratory relief claim fails for lack of an underlying cause of action. See Sires v. State of Wash., 314 F.2d 883, 884 (9th Cir. 1963). 14

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