Andrews v. California Department of Consumer Affairs et al

Filing 69

ORDER by Judge William H. Orrick granting 48 , 49 , 51 Motions to Dismiss. Defendants' motions to dismiss are granted without prejudice. Andrews has 30 days to amend his complaint. (jmdS, COURT STAFF) (Filed on 12/28/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK T. ANDREWS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-00252-WHO
ORDER GRANTING MOTION TO
DISMISS

v.
CALIFORNIA DEPARTMENT OF
CONSUMER AFFAIRS, et al.,
Defendants.

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INTRODUCTION
Plaintiff Mark Andrews brings several claims related to the suspension of his California

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driver’s license and California Bureau of Automotive repair license in connection with child

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support proceedings in California Superior Court, County of Sonoma, against the California

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Department of Consumer Affairs, which includes the California Bureau of Automotive Repair

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(“BAR”) and the California Department of Motor Vehicles (“DMV”), the Sonoma County

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Department of Child Support Services (“DCSS”), Kirk Gorman, an attorney for the DCSS, Kathy

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Simon, a case worker for DCSS, and Superior Court Commissioner Louise Bayles-Fightmaster,

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who presided over his child support matter. Second Amended Complaint (“SAC”) (Dkt. No. 47).

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I am deprived of jurisdiction under the Rooker-Feldman doctrine because Andrews’s case has

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been decided in state court and should have been pursued there if Andrews was dissatisfied with

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the results. For the reasons discussed below, the defendants’ motions to dismiss are GRANTED.

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BACKGROUND
At some point prior to May 2013, Andrews was held in contempt of court for failure to

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make court-ordered child support payments. See SAC ¶¶ 22, 29. As a result, on May 19, 2013, he

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received a notice from the BAR, stating that his license to pursue a private occupation would be

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suspended, effective on June 23, 2013, pursuant to Family Code § 17520 and an order from the

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DCSS. Id. ¶ 19. On June 14, 2013, he also received a notice from the DMV, stating that his

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driver’s license would be suspended, effective July 14, 2013, pursuant to Family Code § 17520

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and a DCSS order. Id. ¶ 20.

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On June 26, 2013, Andrews sent a letter to DCSS, requesting an administrative hearing

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regarding the suspensions of his BAR and DMV licenses. Id. ¶ 21. DCSS. Id. ¶ 22. DCSS held

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multiple hearings to find Andrews in contempt of court for failure to pay child support. It refused

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to file an appeal with the Office of Administrative Hearings regarding the suspension of his

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licenses. Id.

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On September 18, 2013, Andrews asked Commissioner Bayles-Fightmaster to return his

United States District Court
Northern District of California

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licenses. Id. ¶ 23. She told Andrews that he was not entitled to a hearing over his licenses under

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the child support laws. Id. She further told him that no one had received a notice of any request

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for a hearing. Id. Kirk Gorman, the attorney for DCSS, did not inform Bayles-Fightmaster that

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DCSS had received a letter requesting an appeal from Andrews. Id. ¶ 25. Kathy Simon, a DCSS

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caseworker, was also aware of the letter. Id. ¶ 26. Comissioner Bayles-Fightmaster allegedly

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denied Andrews’s request that his licenses be returned. Id. ¶ 31.

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Over the next six months, multiple hearings were held in Andrews’s child support case.

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Id. ¶ 28. Kirk Gorman told Andrews and his attorney that “if you want a hearing on the license

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suspension, file a motion.” Id. It appears that Andrews did not file a motion.

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On February 19, 2014, Gorman told Andrews that, to get his licenses back and avoid jail

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time, he could either pay full child support arrearage or plead guilty to three counts of contempt,

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pay $500 immediately and agree to pay $125 per month. Id. ¶ 29. Andrews pleaded guilty “under

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duress” to get his licenses back. Id. ¶ 30.

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Andrews asserts that his due process rights were violated because his licenses were not

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returned to him on September 18, 2013 when he requested them before Bayles-Fightmaster. Id. ¶

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31. He contends that Bayles-Fightmaster denied him a fair hearing in violation of his Fourteenth

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and Fifth Amendment rights. Id. ¶ 32. He contends that DCSS similarly violated these rights by

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refusing to hold an appeals hearing before taking away his licenses. Id. ¶ 22. He contends that
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Gorman contributed to his injuries by failing to inform Commissioner Bayles-Fightmaster that

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Andrews had submitted a request for an appeal to DCSS and that Simon “was complicit in the

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intentional damage to Plaintiff” because she was also aware of the letter. Id. ¶¶ 25, 26.
Andrews previously brought a claim under 42 U.S.C. § 1983 against defendants. First

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Amended Complaint (Dkt. No. 8). I granted defendants’ motions to dismiss with leave for

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Andrews to amend. Order Granting Motions to Dismiss (Dkt. No. 38). Andrews now brings four

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claims against defendants seeking to redress these injuries. (Dkt. No. 47). He seeks a declaratory

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judgment that he was unconstitutionally denied his due process rights to a fair hearing, $200

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million in damages, attorney’s fees and costs.
LEGAL STANDARD

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A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject

United States District Court
Northern District of California

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matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited

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jurisdiction,” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v.

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Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the

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federal court bears the burden of establishing that the court has the requisite subject matter

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jurisdiction to grant the relief requested. Id.
A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

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1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

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allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

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The challenger asserts that the allegations in the complaint are insufficient “on their face” to

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invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

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2004). To resolve this challenge, the court assumes that the allegations in the complaint are true

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and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe, 392 F.3d

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at 362.1

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I recognize that defendants also seek to dismiss under Rule 12 (b)(6), and have good reasons to
to do so. As the Rooker-Feldman doctrine appears to be dispositive and deprives me of
jurisdiction, however, this Order focuses on it and not the other challenges to the SAC.
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DISCUSSION

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Andrews alleges that his constitutional rights were violated because he was not provided

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with a hearing in state court on the suspension of his licenses to which he asserts he was entitled

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under state law. He further alleges that Bayles-Fightmaster and Gorman committed fraud upon

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the court by misleading him as to the established law relevant to his state court proceeding. As to

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his § 1985 and § 1986 claims, Andrews claims that he was denied an administrative hearing as

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part of a conspiracy by all defendants, and that each defendant had a duty and obligation to stop

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the conspiracy but failed to do so. For the purpose of these motions, I take his allegations as true.

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I.

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THE ROOKER-FELDMAN DOCTRINE
Under the Rooker–Feldman doctrine, the United State Supreme Court is the only federal

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Northern District of California

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court that has jurisdiction to review final state court judgments. Rooker v. Fidelity Trust Co., 263

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U.S. 413, 416 (1923); see also Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (“a federal

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district court does not have subject matter jurisdiction to hear a direct appeal from the final

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judgment of a state court”). When an unsuccessful state court plaintiff attempts to set aside the

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state court judgment in a federal district court, “the federal suit is a forbidden de facto appeal.”

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Noel, 341 F.3d at 1156. “To reverse or modify the judgment of the state court because of such

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errors would be an exercise of appellate jurisdiction possessed only by the Supreme Court.” Id.

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(internal quotations omitted).

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Rooker–Feldman does not bar federal jurisdiction over claims asserting that state-court

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judgments have been obtained by extrinsic fraud upon the court. Kougasian v. TMSL, Inc., 359

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F.3d 1136 (9th Cir. 2004). Rooker–Feldman applies “only when the plaintiff both asserts as []

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injury legal error or errors by the state court and seeks as her remedy relief from the state court

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judgment.” Id. at 1140. But if a plaintiff “asserts as a legal wrong an allegedly illegal act or

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omission by an adverse party, Rooker–Feldman does not bar jurisdiction.” Noel, 341 F.3d at

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1164. Andrews argues that Rooker-Feldman doctrine does not apply in this case because the state

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court judgment was procured by fraud.

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The SAC fails to allege sufficient facts to state a plausible claim for extrinsic fraud that
precludes the application of the Rooker–Feldman doctrine. It offers no specific facts or
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particularized details in support of Andrews’s allegation that Bayles-Fightmaster “knowingly,

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intentionally, and deliberately misstated established law” or that Gorman ““knowingly,

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intentionally, and deliberately misstated established facts.” Indeed, Andrews has not contended

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that he paid his child support timely or challenged the basis for the suspension of his licenses

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under CA. Fam. Code § 17520. He did not appeal Commissioner Bayles-Fightmaster’s orders. In

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fact, he pleaded guilty to contempt of court for failure to pay child support in order to get his

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licenses back. (SAC, ¶ 30.) Under these facts, his claims must be DISMISSED.
Andrews believes that he was denied a hearing on his claims in Superior Court. In light of

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the law governing license suspensions and Andrews’s plea of guilty for failing to pay child
support, I am skeptical that he can state a plausible fraud claim. But in light of his pro se status, I

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United States District Court
Northern District of California

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will allow him to amend one last time. Unless he can meet Rule 9(b)’s heightened pleading

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requirements for causes of action that are based in fraud, his federal claims are barred by the

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Rooker–Feldman doctrine and this Court is without jurisdiction to consider them.

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II.

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OTHER POTENTIAL GROUNDS FOR DISMISSAL
Although I said at the hearing that I would consider granting some of the defendsants’

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motions with prejudice, I have decided to allow Andrews to make whatever allegations he believes

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the evidence will show concerning the purported fraud of the defendants before I do so. That will

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insure that I do not overlook any plausible theory of relief.

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That said, if Andrews is able to successfully plead around the Rooker-Feldman doctrine

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and I have jurisdiction over his claims, there are still a number of other compelling grounds for

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dismissal. For example, his claims appear barred by the statute of limitations. Sections 1983,

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1985, and 1986 claims are subject to the state’s statute of limitations for personal injury torts. See

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Owens v. Okure, 488 U.S. 235 (1989) (section 1983 claims are governed by the state’s statute of

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limitations for personal injury torts); Johnson v. State of Cal., 207 F.3d 650, 653 (9th Cir. 2000)

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(applying California’s statute of limitations for personal injury actions). In California, the current

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statute of limitations for personal injury torts is two years. See C.C.C.P § 335.1. Because

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Andrews’s claims all relate to events that took place in March 2014 and before that he knew about

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at the time, and this case was not filed until 2017, his claims are likely barred by the statute of
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limitations. Andrews hopes to circumvent this statute of limitations by relying on allegations of

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fraud upon the court. In Andrews’s view, Bayles-Fightmaster and Gorman each lost the

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protection of the statute of limitation when they committed fraud upon the court. Oppo. at 3.

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Given his persistent efforts to obtain a hearing at the time and thereafter, I am skeptical that he

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would be able to bypass the statute of limitations.

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And even if the law allows the avoidance of the statute of limitations bar due to fraud, both

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Bayles-Fightmaster and Gorman appear to have absolute immunity. Bayles-Fightmaster is

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entitled to judicial immunity for actions taken in the course of her official duties as a judicial

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officer, and all of the actions she is alleged thus far to have taken were within that capacity. See
Pierson v. Ray, 386 U.S. 547, 553-55 (1967) (“Few doctrines were more solidly established at

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United States District Court
Northern District of California

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common law than the immunity of judges from liability for damages for acts committed within

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their judicial jurisdiction.”). Gorman, as the government attorney in this case, is also entitled to

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immunity. See Fry v. Melaragno, 939 F.2d 832, 836-37 (9th Cir. 1991) (“agency officials

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such. . . agency attorneys who conduct trials and present evidence on the record to the trier of fact

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are absolutely immune from liability in damages for their decisions”).

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These are only some of the other plausible grounds for dismissal that the defendants have

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raised. But given Federal Rule of Civil Procedure 15’s liberal amendment standard, I will grant

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leave once more. This will be Andrews’s last opportunity.

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CONCLUSION

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For the reasons discussed above, I GRANT defendants’ motions to dismiss without

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prejudice. Andrews has 30 days to amend his complaint.
IT IS SO ORDERED.
Dated: December 28, 2017

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William H. Orrick
United States District Judge

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