Kleidman v. Buchanan et al

Filing 26

ORDER granting 17 Motion to Dismiss; granting 23 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge William Q. Hayes on 03/10/2025. (stn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PETER KLEIDMAN,

Case No.: 23-cv-1251-WQH-JLB
Plaintiff,

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v.

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JUSTICE MARTIN N.
BUCHANAN; JUSTICE JOSE S.
CASTILLO; JUSTICE
RICHARD D. HUFFMAN; and
CHIEF JUDGE MARY H.
MURGUIA,

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ORDER

Defendants.
HAYES, Judge:
The matters before the Court are (1) the Motion to Dismiss First Amended
Complaint filed by Defendants Justices Martin N. Buchanan, Jose S. Castillo, and Richard
D. Huffman (collectively, the “Justice Defendants”) (ECF No. 17) and (2) the Motion to
Dismiss Plaintiff’s First Amended Complaint filed by Defendant Chief Judge Mary H.
Murguia (“Chief Judge Murguia”) (ECF No. 23).
I.

BACKGROUND
On July 6, 2023, Plaintiff Peter Kleidman (“Plaintiff”), proceeding pro se, initiated

this action by filing a Complaint against the Justice Defendants, alleging claims for
violations of his due process and equal protection rights. (ECF No. 1.)
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On November 3, 2023, the Justice Defendants filed a motion to dismiss. (ECF No.

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10.) On July 8, 2024, the Court granted the motion to dismiss and dismissed the Complaint

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without prejudice and with leave to amend. (ECF No. 14 at 14–15.)

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On July 29, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”).

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(ECF No. 15, FAC.) In addition to Plaintiff’s previously asserted claim against the Justice

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Defendants for violation of due process, the FAC reframed Plaintiff’s equal protection

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claim against the Justice Defendants as a second claim for violation of due process.

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(Compare ECF No. 1 ¶¶ 16–21, with FAC ¶¶ 25–33.) The FAC also added a third claim

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for violations of Plaintiff’s due process and equal protection rights against “the California

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judiciary,” which Plaintiff asserts against the Justice Defendants “because they are in

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privity with the California judiciary.” (FAC ¶ 34.) Finally, the FAC added a claim for

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violations of Plaintiff’s due process rights against a new defendant, Chief Judge Murguia,

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“in her official capacity as the Chief Judge of the Ninth Circuit US Court of Appeals.” Id.

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¶¶ 1, 43–51.

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On August 12, 2024, the Justice Defendants filed their Motion to Dismiss First
Amended Complaint. (ECF No. 17.)

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On September 9, 2024, Plaintiff filed a Response in Opposition to the Justice

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Defendants’ Motion to Dismiss First Amended Complaint (ECF No. 18), as well as an

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Amended Response in Opposition (ECF No. 19).1 The same day, Plaintiff filed a Notice of

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Errata in First Amended Complaint, which contained revisions to paragraphs 18–19, 24,

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29, 33, and 42 of the FAC. (ECF No. 20.)

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On September 16, 2024, the Justice Defendants filed a Reply in support of their
Motion to Dismiss First Amended Complaint. (ECF No. 21.)

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Plaintiff explained that, although his initial Response in Opposition was “substantively complete,” the
Amended Response would contain “the proper Table of Contents and Table of Authorities.” (ECF No. 18
at 1 & n.1.)
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On December 19, 2024, Chief Judge Murguia filed her Motion to Dismiss Plaintiff’s
First Amended Complaint. (ECF No. 23.)

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On January 13, 2025, Plaintiff filed a Response in Opposition to Chief Judge
Murguia’s Motion to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 24.)

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On January 17, 2025, Chief Judge Murguia filed a Reply in support of her Motion

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to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 25.)

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II.

ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

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A.

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Plaintiff initiated an action in the Superior Court of California, captioned “Kleidman

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v. RFF Family Partnership LP,” where he sought money damages (“Action 1”). (FAC ¶ 4.)

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The Superior Court dismissed Plaintiff’s complaint. Id. ¶ 5. Plaintiff appealed the dismissal

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in the California Court of Appeal for the Second Appellate District, case number B260735.

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Id. The Second District Court of Appeal Administrative Presiding Justice (“AJP”)

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dismissed the appeal on the grounds that the appeal was untimely. Id. ¶ 6.

Allegations Related to the Justice Defendants

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Plaintiff filed a subsequent lawsuit in the Superior Court of California against the

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Second District Court of Appeal and the APJ, captioned “Kleidman v. California Court of

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Appeal Second Appellate District” (“Action 2”). Id. ¶ 7. In Action 2, Plaintiff alleged that

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the APJ “had no judicial power to singlehandedly dismiss B260735” because, under the

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California Constitution and Government Code, the Second District Court of Appeal “is

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organized into eight divisions … and no justice in [the Second District Court of Appeal]

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can exert judicial power except as a member of one of these Eight Divisions.” Id. The APJ

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had “acted independently of the Eight Divisions, and therefore his act of dismissing

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B260735 was altogether void for want of judicial power.” Id. Plaintiff also alleged in

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Action 2 that “under the California Constitution, no justice has the judicial power to

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singlehandedly dismiss an appeal (against the will of the appellant), because such a

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dismissal requires the concurrence of two justices,” but the APJ dismissed the action

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singlehandedly. Id. ¶ 8. Plaintiff had requested the Superior Court of California deem the

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dismissal of B260735 as void and that case B260735 be reopened, assigned to one of the
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Eight Divisions, and that if determination of timeliness should be made, that it be made by

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the concurrence of two justices. Id. ¶ 9. Plaintiff “lost” Action 2 in the Superior Court. Id.

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¶ 10. Plaintiff appealed, “giving rise to three appellate cases in [the California Court of

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Appeal for the Fourth Appellate District], Nos. D079855, D079856, D079933.” Id. “These

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appeals were deemed to be a single appeal” (collectively, “the Appeal”). Id.

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The Justice Defendants in the present case presided over the Appeal, rendering an

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opinion on June 23, 2023 (the “6/23/2023 Opinion”). Id. The Justice Defendants raised

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“new arguments and issues for the first time in the 6/23/2023 Opinion, sua sponte, without

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giving Kleidman the opportunity to be heard.” Id. ¶ 11. The Justice Defendants ignored

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Plaintiff’s arguments “advanced in his briefing in support of the Appeal.” Id. ¶ 12. The

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6/23/2023 Opinion “was adjudicated in a manner that violated [Plaintiff’s] right to due

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process, because [the Justice Defendants] raised new arguments without giving [Plaintiff]

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the opportunity to be heard, and ignored [Plaintiff’s] arguments.” Id. ¶ 15. “[Plaintiff’s]

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injury is not the 6/23/23 Opinion itself, but that it was rendered in a manner which violated

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[Plaintiff’s] due process rights.” Id. ¶ 21. “In this action, [Plaintiff] is not looking for a

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different result in the Appeal, but rather he is looking solely for due process in the Appeal’s

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proceedings.” Id. “[Plaintiff] seeks prospective relief because the purpose of this action is

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to reopen the Appeal for future proceedings, whereby the Appeal is adjudicated in a manner

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which complies with due process in the future.” Id. ¶ 22. The Justice Defendants “persist

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in depriving [Plaintiff] of a fair trial. The [Justice Defendants] have, and continue to have,

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the power to hold a fair trial, but they refuse to hold one.” Id. ¶ 23. “By refusing, and

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continuing to refuse, to reopen the proceedings so that a fair trial may be had, they

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unconstitutionally deprive, and continue to deprive, [Plaintiff] of the fair trial he deserves

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but has never had.” Id.

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Plaintiff’s “due process rights” were also “violated in the decisionmaking [sic]

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process in the Appeal’s proceedings” by the Justice Defendants “opt[ing] to keep the

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6/23/23 Opinion unpublished, i.e., non-precedential and outside the body of California’s

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common law.” Id. ¶ 28. Plaintiff “request[s] that this Court adjudge that the Justice
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[Defendants’] manner of deciding the Appeal, whereby they chose to keep their decision

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unpublished and thereby excluded from California common law, was unconstitutional

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(because the Justices were less incentivized to get it right).” Id. ¶ 30.

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The California Judiciary deprived Plaintiff “of equal protection and due process

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because B260735 was dismissed as untimely by a single justice.” Id. ¶ 37. “The decision

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to dismiss B260735 as untimely was more error-prone because the decision was not

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adjudicated by a three-justice panel with the concurrence of two,” and “[s]ince the decision

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was more error-prone, it was determined in violation of [Plaintiff’s] due process rights.”

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Id. B260735 “was dismissed in violation of equal protection because other appeals are

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dismissed by a three-justice panel with the concurrence of two, whereas the APJ arbitrarily

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decided that B260735 should be decided by a single justice.” Id. Plaintiff asserts this claim

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against the Justice Defendants because “they are in privity with the California judiciary.”

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Id. ¶ 34. “If this Court finds insufficient privity, then [Plaintiff] requests leave to amend so

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as to sue the California Chief Justice, in her capacity as the Chair of the Judicial Council

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responsible for overseeing the procedural rules and practices followed by the California

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judiciary.” Id.

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Plaintiff seeks reopening of the Appeal to allow him to be “duly heard on the new

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arguments and issues raised by the [Justice Defendants], and whereby the [Justice

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Defendants] duly consider the arguments that [Plaintiff] had made which they had

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previously ignored.” Id. ¶ 13. Specifically, as to Count One, Plaintiff seeks a “declaration

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that the manner in which the 6/23/23 Opinion was rendered violated [Plaintiff’s] right to

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due process.” Id. ¶ 51, i. Plaintiff also seeks a “declaration that the Appeal should be

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reopened so that [Plaintiff] may have the fair trial that he deserves but has never had.” Id.

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¶ 51, ii.

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As to Count Two, Plaintiff seeks a “declaration that the practice of issuing appellate

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decisions which are not part of California’s common law violates due process.” Id. ¶ 51,

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iii. Plaintiff also seeks a “declaration that the Appeal should be reopened so that it is

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re-decided with a published opinion which is part of California's common law.” Id. ¶ 51,

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iv.

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As to Count Three, Plaintiff seeks a “declaration that the system and practice,

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whereby some appeals are dismissed as untimely by a single justice, whereas other appeals

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are dismissed as untimely by a three-justice panel with the concurrence of two, violates

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due process and equal protection.” Id. ¶ 51, v. Plaintiff further seeks a “declaration that

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B260735 should be reopened so that the timeliness of the appeal is decided by a

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three-justice panel with the concurrence of two.” Id. ¶ 51, vi.

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Plaintiff seeks additional remedies of costs and other such relief the Court deems
just and proper. Id. ¶¶ 51, x–xi.

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B.

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“It is almost certain that this case will be appealed,” and “[Plaintiff] intends to appeal

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if he loses in this Court.” Id. ¶ 44. Plaintiff therefore asserts “a pre-enforcement

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constitutional challenge to the Ninth Circuit’s rules and practices,” including the Rule of

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Interpanel Accord, the practice of issuing non-precedential decisions, and the “practice of

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disposing of cases with perfunctory decisions.” Id. ¶¶ 44–45. With respect to this claim,

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Chief Judge Murguia “is sued solely in her executive capacity as the person who oversees

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the Ninth Circuit’s enforcement of the rules which the Ninth Circuit promulgates and who

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oversees the practices which it employs.” Id. ¶ 1.

Allegations Related to Chief Judge Murguia

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The Rule of Interpanel Accord “is unconstitutional because it forces a three-judge

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panel to mindlessly, blindly follow prior three-judge panels[’] decisions in the Ninth

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Circuit.” Id. ¶ 45. Additionally, “the practice of issuing non-precedential decisions”

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“violates due process because it increases the risk of error among the decisions without

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precedential value.” Id. ¶ 48. Lastly, the “practice of disposing of cases with perfunctory

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decisions (memoranda and orders) violates due process and implied rights under [Federal

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Rule of Appellate Procedure (‘FRAP’)] 40.” Id. ¶ 50.

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Plaintiff seeks declarations that: “the [Rule of Interpanel Accord] is

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unconstitutional”; “the practice of issuing non-precedential decisions is unconstitutional”;
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and “the practice of issuing decisions which do not adequately state the facts and do not

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adequately address the losing party’s arguments violates due process and parties’ rights

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under FRAP 40.” Id. ¶¶ 51, vii–ix.

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Plaintiff seeks additional remedies of costs and other such relief the Court deems

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just and proper. Id. ¶¶ 51, x–xi.

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III.

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MOTIONS TO DISMISS
A.

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Contentions
1.

The Justice Defendants

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The Justice Defendants move to dismiss the claims against them in the FAC on the

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following grounds: (1) Plaintiff’s claims are barred by the Justice Defendants’ Eleventh

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Amendment sovereign immunity and the Ex parte Young exception does not apply because

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the Justice Defendants are state court judges and Plaintiff continues to seek retrospective

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relief; (2) Plaintiff’s claims are barred by the Rooker-Feldman doctrine because Plaintiff’s

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claims are a de facto appeal of a state court decision; and (3) Plaintiff fails to state claims

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for violations of the due process and equal protection clauses.2 The Justice Defendants also

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contend that Count Three fails because the Justice Defendants, as justices of the Fourth

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Appellate District, did not participate in the dismissal of B260735, which was dismissed

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by the Second Appellate District.

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Plaintiff contends that his claims against the Justice Defendants are not barred by

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the Eleventh Amendment because the Ex parte Young doctrine applies to this case in that

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claims for prospective relief are permitted. Plaintiff contends that his general constitutional

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challenges seek prospective relief. Plaintiff contends that the relief he requests in

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connection with the state court decisions is also prospective because he seeks “relief which

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affects the future conduct of [the Justice] Defendants” where they are required “to provide

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[Plaintiff] with the fair trial that he never had.” (ECF No. 19 at 10.) Plaintiff contends that

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See Ex Parte Young, 209 U.S. 123 (1908); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of
Appeals v. Feldman, 460 U.S. 462 (1983).
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his claims against the Justice Defendants are not barred by Rooker-Feldman for the

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following reasons: because his injury was being deprived of due process and equal

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protection, Plaintiff is not seeking review of the 6/23/2023 Opinion or the decision to have

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B260735 dismissed by a single justice; the state court proceedings had not ended prior to

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his filing of this action; the state court did not adjudicate whether his due process and equal

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protection rights were violated; Plaintiff is not alleging as a legal wrong an erroneous

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decision by the state court; the Justice Defendants’ initial determination that the 6/23/2023

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Opinion be unpublished and the Second District Court of Appeal’s decision to have

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B260735 dismissed by a single justice are not “judgments,” but rather decisions “made in

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an executive, quasi-attorney general capacity”; and Rooker-Feldman is inapplicable to

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general constitutional challenges. Plaintiff contends that he adequately alleges claims for

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violation of due process and equal protection.

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As for Count Three, Plaintiff concedes that this claim should be dismissed as to the

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Justice Defendants but contends that he should receive leave to amend so he may “proceed

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against the appropriate defendants.” Id. at 25–26. Plaintiff contends the Eleventh

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Amendment and the Rooker-Feldman doctrine would not bar Count Three, as amended,

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for the reasons discussed above.

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2.

Chief Judge Murguia

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Chief Judge Murguia contends that Plaintiff’s claim against her must be dismissed

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for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)

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on the following grounds: (1) Plaintiff’s claim is barred by the doctrine of sovereign

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immunity and (2) Plaintiff lacks standing because any alleged harm Plaintiff might suffer

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as a result of the challenged Ninth Circuit rule and practices is purely speculative.

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Plaintiff contends that his claim against Chief Judge Murguia is not barred by

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sovereign immunity because he seeks to enjoin her from “enforcing unconstitutional rules

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and practices in the Ninth Circuit.” (ECF No. 24 at 3.) Plaintiff contends that he has

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standing to assert his claim against Chief Judge Murguia because this Court must accept

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as true Plaintiff’s allegation in the FAC that, should Plaintiff lose in this Court, he intends
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to appeal this Court’s decision to the Ninth Circuit. Alternatively, Plaintiff requests that

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the Court should either permit Plaintiff to amend the FAC to allege that the Justice

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Defendants will appeal this Court’s decision to the Ninth Circuit or permit Plaintiff to

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engage in jurisdictional discovery as to the standing issue. Plaintiff contends that he has

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alleged more than the mere existence of the challenged rules and practices, as Ninth Circuit

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statistics support the probability that his hypothetical appeal will be decided by a

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non-precedential decision using a “perfunctory memorandum or order.” Id. at 7. With

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respect to his challenge to the Rule of Interpanel Accord, Plaintiff requests leave to amend

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to allege why there is a significant risk that the Rule will be applied adversely to him in a

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hypothetical appeal of this Court’s anticipated decision.

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B.

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Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move

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for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed. R.

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Civ. P. 12(b)(1). When a Rule 12(b)(1) motion is brought, the “party asserting federal

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subject matter jurisdiction bears the burden of proving its existence.” Chandler v. State

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Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

Legal Standards

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Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure

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to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state

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a claim for relief, a pleading “must contain ... a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Id. 8(a)(2). Dismissal under Rule 12(b)(6) is

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“proper only where there is no cognizable legal theory or an absence of sufficient facts

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alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs.,

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Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

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(alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as

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true allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual

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content,’ and reasonable inferences from that content, must be plausibly suggestive of a

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claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009) (citation omitted).

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An Eleventh Amendment immunity defense is “quasi-jurisdictional” in nature and

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“may be raised in either a Rule 12(b)(1) or 12(b)(6) motion.” Sato v. Orange Cnty. Dep’t

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of Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017); compare Savage v. Glendale Union High

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Sch. Dist. No. 205, 343 F.3d 1036, 1040 (9th Cir. 2003) (treating Eleventh Amendment

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immunity as a matter of subject matter jurisdiction), with Elwood v. Drescher, 456 F.3d

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943, 949 (9th Cir. 2006) (“‘[D]ismissal based on Eleventh Amendment immunity is not a

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dismissal for lack of subject matter jurisdiction,’ but instead rests on an affirmative

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defense.” (quoting Miles v. California, 320 F.3d 986, 988–89 (9th Cir. 2003))). Where a

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defendant raises an Eleventh Amendment challenge based on the face of the complaint, it

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makes no difference whether the court examines immunity under Rule 12(b)(1) or Rule

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12(b)(6) because the standards are materially the same. The court assumes that all factual

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allegations in the complaint are true and draws all reasonable inferences in the plaintiff’s

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favor. See Syed v. M-I, LLC, 853 F.3d 492, 499 n.4 (9th Cir. 2017) (discussing Rule

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12(b)(6) standard); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (discussing Rule

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12(b)(1) standard), overruled on other grounds, Munoz v. Superior Ct. of L.A. Cnty., 91

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F.4th 977 (9th Cir. 2024); Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th

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Cir. 2003) (explaining that “[w]here jurisdiction is intertwined with the merits, we must

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‘assume[ ] the truth of the allegations ....’” (quoting Roberts v. Corrothers, 812 F.2d 1173,

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1177 (9th Cir. 1987))).

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C.

Discussion
1.

The Justice Defendants
a.

Eleventh Amendment Immunity

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The Justice Defendants move to dismiss the claims against them in the FAC on the

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ground that Plaintiff’s claims are barred by Eleventh Amendment sovereign immunity

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because the Justice Defendants are state court judges and the exception in Ex parte Young

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does not apply as Plaintiff is not seeking prospective equitable relief. Plaintiff contends

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that the Ex parte Young exception applies to the claims against the Justice Defendants in

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the FAC because he is seeking prospective relief in the form of “declaratory relief whereby

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the Appeal is reopened so that he may have a fair trial in the future” (ECF No. 19 at 8), and

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“a remedy whereby B260735 is reopened so that, prospectively, a new adjudication occurs

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by a three-justice panel with the concurrence of two,” id. at 27. Plaintiff contends that his

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“injury is ongoing because to this very day he has been, and continues to be, deprived of

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the fair trial which he deserves under the Constitution.” Id. at 10. Plaintiff contends that his

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general constitutional challenges seek “only prospective relief to ensure the challenged

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rule[s] will not be enforced in the future.” Id. at 21–22.

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The Eleventh Amendment of the United States Constitution provides: “The Judicial

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power of the United States shall not be construed to extend to any suit in law or equity,

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commenced or prosecuted against one of the United States by citizens of another State, or

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by citizens or subjects of any foreign State.” U.S. Const. amend. XI. The Eleventh

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Amendment presupposes that “each State is a sovereign entity in our federal system” and

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that “‘[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an

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individual without [the sovereign’s] consent.’” Seminole Tribe of Fla. v. Florida, 517 U.S.

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44, 54 (1996) (first alteration in original) (quoting Hans v. Louisiana, 134 U.S. 1, 13

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(1890)). The Eleventh Amendment “enacts a sovereign immunity from suit,” and it shields

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a state except “where there has been ‘a surrender of this immunity....’” Idaho v. Coeur
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d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (quoting Principality of Monaco v.

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Mississippi, 292 U.S. 313, 322–23 (1934)). Eleventh Amendment immunity shields a state

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from suits brought by the state’s own citizens as well as in suits invoking federal question

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jurisdiction. Id. at 268.

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“State immunity extends to state agencies and to state officers, who act on behalf of

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the state and can therefore assert the state’s sovereign immunity.” NRDC v. Cal. Dep’t of

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Transp., 96 F.3d 420, 421 (9th Cir. 1996) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf

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& Eddy, Inc., 506 U.S. 139, 142–46 (1993); Pennhurst State Sch. & Hosp. v. Halderman,

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465 U.S. 89, 101 (1984)). A state official “sued in his official capacity has the same

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immunity as the state, and is entitled to [E]leventh [A]mendment immunity.” Pena v.

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Gardner, 976 F.2d 469, 473 (9th Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21, 25–26,

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(1991)); see also Simmons v. Sacramento Cnty. Superior Ct., 318 F.3d 1156, 1161 (9th Cir.

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2003) (“Plaintiff cannot state a claim against the Sacramento County Superior Court (or its

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employees), because such suits are barred by the Eleventh Amendment.”).

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There are three exceptions to the general rule that states, state agencies, and state

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officers are protected by the Eleventh Amendment from suits brought by citizens in federal

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court. Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001), amended,

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285 F.3d 1226 (9th Cir. 2001).

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First, a state may waive its Eleventh Amendment defense. Second, Congress
may abrogate the States’ sovereign immunity by acting pursuant to a grant of
constitutional authority. Third, under the Ex parte Young doctrine, the
Eleventh Amendment does not bar a “suit against a state official when that
suit seeks ... prospective injunctive relief.”

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Id. at 817–18 (internal citations omitted) (quoting Seminole Tribe of Fla., 517 U.S. at 73).

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In this case, the Justice Defendants are judicial officers, and all the challenged

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actions were undertaken in their official capacities. See Munoz, 91 F.4th at 980 (“Judge

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Taylor also has Eleventh Amendment immunity as a state judge.”). Thus, the claims against

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the Justice Defendants are barred by the Eleventh Amendment, absent an applicable

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exception.3

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Plaintiff contends that Eleventh Amendment immunity does not apply to suits for

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prospective relief. The Ex parte Young doctrine provides that the Eleventh Amendment

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“does not [ ] bar actions for prospective declaratory or injunctive relief against state officers

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in their official capacities for their alleged violations of federal law.” Coal. to Def.

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Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012); see Ex parte Young, 209

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U.S. at 155–56. The Ex parte Young doctrine is available “where ‘a plaintiff alleges an

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ongoing violation of federal law, and where the relief sought is prospective rather than

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retrospective.’” Doe v. Lawrence Livermore Nat’l Lab’y, 131 F.3d 836, 839 (9th Cir. 1997)

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(quoting Coeur d’Alene Tribe of Idaho, 521 U.S. at 294 (O’Connor, J., concurring)). “In

12

determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar

13

to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint

14

alleges an ongoing violation of federal law and seeks relief properly characterized as

15

prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)

16

(alteration in original) (quoting Coeur d’Alene Tribe of Idaho, 521 U.S. at 296 (O’Connor,

17

J., concurring)). When determining whether the relief sought is prospective or

18

retrospective, courts must “look to the substance rather than to the form of the relief

19

sought.” Papasan v. Allain, 478 U.S. 265, 279 (1986).

20

The FAC attempts to recast the relief that Plaintiff seeks with respect to reopening

21

the Appeal and B260735 as prospective. (See, e.g., FAC ¶ 22 (“[Plaintiff] seeks prospective

22

relief because the purpose of this action is to reopen the Appeal for future proceedings,

23

whereby the Appeal is adjudicated in a manner which complies with due process in the

24

future.”); id. ¶ 40 (“[Plaintiff] seeks prospective relief because he seeks to reopen B260735

25
26
27
28

3

Plaintiff contends that Munoz “should not be taken as binding precedent to the effect that every state
judge always has Eleventh Amendment immunity in every circumstance.” (ECF No. 19 at 12.) The Court
does not so hold, as evidenced by the Court’s consideration of the Ex parte Young exception below.
13
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1

for future proceedings, whereby the timeliness of the appeal is determined, in the future,

2

by a three-justice panel with the concurrence of two.”).) The Justice Defendants contend

3

that the FAC’s reframing “is merely a newly worded attempt to invalidate the state court

4

Decision.” (ECF No. 17 at 14.) The Court agrees with the Justice Defendants. While

5

Plaintiff alleges that the relief he seeks is prospective, the substance of the relief he seeks

6

is retrospective. Plaintiff seeks “a declaratory judgment declaring the 6/23/23 Opinion void

7

for being constitutionally infirm” and a declaration “that the Appeal should be reopened so

8

that [Plaintiff] may have the fair trial that he deserves.” (FAC ¶¶ 13, 51, ii.) He further

9

seeks declarations that “the Appeal should be reopened so that it is re-decided with a

10

published opinion” and that “B260735 should be reopened so that the timeliness of the

11

appeal is decided by a three-justice panel with the concurrence of two.” Id. ¶¶ 51, iv, vi.

12

As the Justice Defendants point out, it would be impossible to “reopen” the Appeal and

13

B260735 without first invalidating the state court decisions, as any “‘new’ appeal would

14

simply be dismissed by the Court of Appeal as already decided.” (ECF No. 21 at 7.) The

15

FAC’s requests to reopen the Appeal and B260735 thus seek inherently retrospective relief,

16

rendering these claims ineligible for the Ex parte Young exception to Eleventh Amendment

17

immunity.4

18

The FAC also alleges that the Justice Defendants are “engag[ing] in an ongoing

19

violation of federal law because they have refused, and continued to refuse, to allow

20

[Plaintiff] to have a fair trial.” (FAC ¶ 23.) If the FAC’s allegations of an “ongoing

21

violation” could invoke the Ex parte Young exception, every litigant who wished to

22

“reopen” a state court’s decision could evade the Eleventh Amendment’s immunity bar by

23

claiming to experience an “ongoing” injury from the state court’s “continued” refusal to

24
25
26
27
28

4

The Court recognizes that, as Plaintiff contends, “[t]he fact that [a plaintiff’s] claims depend in part upon
past conduct … is not dispositive.” (ECF No. 19 at 8 (emphasis added) (quoting Cardenas v. Anzai, 311
F.3d 929, 938 (9th Cir. 2002)).) In this case, however, Plaintiff’s claims related to reopening his state court
cases rest entirely upon the Justice Defendants’ past conduct in deciding the Appeal (as well as the Second
District Court of Appeal’s past conduct in disposing of B260735). Unlike the plaintiffs in Cardenas, the
FAC does not “seek to remedy an ongoing violation of federal law.” 311 F.3d at 938.
14
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1

allow him to relitigate. Such a broad reading of the Ex parte Young exception would

2

swallow the rule. Here, any purported wrongdoing on the Justice Defendants’ part occurred

3

in the context of deciding the Appeal and B260735. Both proceedings are concluded. As

4

such, the FAC does not sufficiently allege an “ongoing” or “continuing” violation with

5

respect to the Appeal or B260735. 5

6

Plaintiff also contends that the Justice Defendants are not entitled to Eleventh

7

Amendment sovereign immunity because they acted “in their executive, enforcement

8

capacities as quasi-attorney generals of the State” “when deciding to keep their opinion [in

9

the Appeal] non-precedential (unpublished).” (ECF No. 19 at 20–21.) The Justice

10

Defendants contend that “judges’ decisions on whether to publish their rulings fall within

11

their adjudicative duties.” (ECF No. 21 at 9.) Notably, even if the Justice Defendants were

12

acting in some official capacity other than their judicial roles, Eleventh Amendment

13

sovereign immunity extends not only to judges, but also to any state official “sued in his

14

official capacity.” Pena, 976 F.2d at 473; see, e.g., Bolbol v. Brown, 120 F. Supp. 3d 1010,

15

1017 (N.D. Cal. 2015) (“Eleventh Amendment sovereign immunity applies to plaintiffs’

16
17
18
19
20
21
22
23
24
25
26
27
28

5

Plaintiff’s reliance on Los Angeles County Bar Association v. Eu, 979 F.2d 697, 704 (9th Cir. 1992),
does not establish that his claims against the Justice Defendants are premised upon an ongoing violation.
Plaintiff cites Los Angeles County Bar Association for the proposition that “[d]eclaratory relief against a
state official may not be premised on a wholly past violation of federal law, because such relief … would
be useful only as a basis for a damages award ….” (ECF No. 19 at 8 (quoting L.A. Cnty. Bar Ass’n, 979
F.2d at 704).) Plaintiff contends that “[t]he logical equivalent of this statement is that when a claim for
declaratory relief is useful without the need for damages, then it is not premised on a wholly past
violation.” Id. Plaintiff appears to believe that because the equitable relief he seeks “is useful without the
need for damages,” it is necessarily prospective in nature. See id. In this instance, Plaintiff’s willingness
to forgo seeking damages cannot alone entitle him to application of the Ex parte Young exception. Indeed,
equitable relief, like the relief sought in the FAC with respect to reopening the Appeal and B260735, can
be retrospective. Retrospective equitable relief is not available under Ex parte Young. See Edelman v.
Jordan, 415 U.S. 651, 667 (1974) (“[E]quitable relief may be barred by the Eleventh Amendment.”); see
also Williams v. Or. Dep’t of Corr., 542 F. App’x 602, 603 (9th Cir. 2013) (“To whatever extent the
defendants were sued in their official capacities for money damages or retrospective equitable relief,
Eleventh Amendment immunity bars those claims.”); Alvarado v. Recksiek, No. ED CV 15-2654 FMO
(AS), 2016 WL 1090609, at *3 n.5 (C.D. Cal. Mar. 21, 2016) (“[T]he Eleventh Amendment bars Plaintiff’s
[section] 1983 claims for damages and retrospective declaratory relief against [the defendant] in her
official capacity.” (citing Dittman v. California, 191 F.3d 1020, 2026 (9th Cir. 1999); Green v. Mansour,
474 U.S. 64, 73–74 (1985))).
15
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federal claims against the Governor and Attorney General of California.”). Here, the

2

decision of whether to publish their opinion in the Appeal is a decision the Justice

3

Defendants made in their “official capacity,” which results in sovereign immunity.

4

Furthermore, regardless of which “capacity” the Justice Defendants were acting in,

5

Plaintiff unquestionably seeks retrospective relief with respect to his request for a

6

declaration “that the Appeal should be reopened so that it is re-decided with a published

7

opinion.” (FAC ¶ 51, iv.)

8

Based upon the allegations in the FAC, Plaintiff’s claims seeking to “reopen” the

9

Appeal and B260735 do not “allege[] an ongoing violation of federal law and seek[] relief

10

properly characterized as prospective.’” Verizon Md., 535 U.S. at 645. The Court finds

11

that, based on the allegations of the FAC, the Ex parte Young exception to Eleventh

12

Amendment immunity does not apply and Plaintiff’s claims against the Justice Defendants

13

in the FAC are accordingly barred to the extent he seeks to challenge “the manner in which

14

the 6/23/23 Opinion was rendered” and “reopen” the Appeal or B260735.6 (See FAC ¶¶ 51,

15

i–ii, iv, vi.)

16

Plaintiff also asserts general constitutional challenges to California court rules and

17

practices. See id. ¶ 51, iii (seeking “[a] declaration that the practice of issuing appellate

18

decisions which are not part of California’s common law violates due process”); id. ¶ 51,

19

v (seeking “[a] declaration that the system and practice, whereby some appeals are

20

dismissed as untimely by a single justice, whereas other appeals are dismissed as untimely

21
22
23
24
25
26
27
28

6

As the Court previously determined (see ECF No. 14 at 9 n.2), the cases Plaintiff cites in support (see
ECF No. 19 at 8–10) of his contention that reopening the state court cases would afford him prospective
relief are dissimilar to the case before the Court. See Lawrence Livermore Nat’l Lab’y, 131 F.3d at 839
(discussing whether the plaintiff sought prospective injunctive relief in a reinstatement of employment
context); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (addressing, in a student records context,
that “the injunctions Flint seeks as related to past violations serve to expunge from University records the
2003 censure and 2004 denial of his Senate seat, which actions may cause Flint harm”); Hason v. Med.
Bd. of Cal., 279 F.3d 1167, 1171 (9th Cir. 2002) (holding in the context of medical licensure, “Dr. Hason’s
complaint clearly seeks prospective injunctive relief to enjoin the individual defendants’ refusal to issue
Dr. Hason a medical license”).
16
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1

by a three-justice panel with the concurrence of two, violates due process and equal

2

protection”). The Court agrees with Plaintiff that, to the extent the FAC broadly seeks to

3

invalidate these California appellate court practices independent of “reopening” the Appeal

4

or B260735, the relief Plaintiff seeks is prospective. See Kleidman v. Willhite, No.

5

2:20-cv-02365-PSG-JDE, 2020 WL 5823278, at *13 (C.D. Cal. Aug. 20, 2020) (“The

6

Court agrees with Plaintiff, however, that the Ex Parte Young exception would apply to his

7

general constitutional challenges seeking prospective relief.… however, as noted,

8

[Plaintiff] lacks standing to pursue these claims.”), adopted by No. 2:20-cv-02365-PSG-

9

JDE, 2020 WL 5824163 (C.D. Cal. Sept. 29, 2020), aff’d as modified sub nom. Kleidman

10

v. Cal. Ct. of App. for the Second App. Dist., No. 20-56256, 2022 WL 1153932 (9th Cir.

11

Apr. 19, 2022) (affirming the district court’s dismissal for lack of subject matter

12

jurisdiction, but instructing the district court “to amend the judgment to reflect that the

13

dismissal of the federal claims is without prejudice”).

14

The Ex parte Young exception to Eleventh Amendment immunity is accordingly

15

applicable to Plaintiff’s claims against the Justice Defendants solely to the extent he asserts

16

general constitutional challenges seeking prospective relief. (See FAC ¶¶ 51, iii, v.)

17

Nevertheless, as the Court concludes below, Plaintiff lacks standing to assert these claims.

18

See infra at 25–27.

19

b.

Rooker-Feldman Doctrine

20

The Justice Defendants additionally move to dismiss the claims against them in the

21

FAC on the ground that Plaintiff’s claims for due process and equal protection are barred

22

by the Rooker-Feldman doctrine because the claims are “de facto appeal[s]” of the Justice

23

Defendants’ 6/23/2023 Opinion and the dismissal of B260735, and the relief sought would

24

require this Court to adjudicate issues that are “inextricably intertwined” with those in the

25

6/23/2023 Opinion. (ECF No. 17 at 15, 16 n.5.)

26

Plaintiff contends that his claims are not barred by the Rooker-Feldman doctrine

27

because he “does not allege as a legal wrong an erroneous decision [by the state court].

28

Rather, the alleged legal wrong is [the Justice Defendants’] violation of his due process in
17
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1

the course of adjudicating the Appeal.” (ECF No. 19 at 12–13.) Plaintiff contends that the

2

state court did not adjudicate whether his due process and equal protection rights were

3

violated. Plaintiff contends that he is not asking the Court to review or reject the 6/23/2023

4

Opinion; rather, “[t]he only question before this Court is whether [Plaintiff] was afforded

5

a fair trial in the state-court appellate proceedings.” Id. at 13. Plaintiff contends that he is

6

not asking the Court to review the decision to have B260735 dismissed by a single justice

7

because he does not ask the Court “to find that any rulings in B260735 are erroneous.” Id.

8

at 28. Plaintiff contends that the state court action had not ended when he filed the present

9

action as is required under the Rooker-Feldman doctrine. Plaintiff contends that the Justice

10

Defendants’ initial determination that the 6/23/2023 Opinion be unpublished and the

11

Second District Court of Appeal’s decision to have B260735 dismissed by a single justice

12

are not “judgments” barred by the Rooker-Feldman doctrine. Plaintiff contends that the

13

Rooker-Feldman doctrine is inapplicable to his general constitutional challenges.

14

The Rooker-Feldman doctrine applies to “cases brought by state-court losers

15

complaining of injuries caused by state-court judgments rendered before the district court

16

proceedings commenced and inviting district court review and rejection of those

17

judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

18

“The doctrine holds that ‘a federal district court does not have subject matter jurisdiction

19

to hear a direct appeal from the final judgment of a state court.’” Gouveia v. Espinda, 926

20

F.3d 1102, 1107 (9th Cir. 2019) (quoting Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.

21

2003)).

22

The Rooker-Feldman doctrine applies where a federal court action functions as a “de

23

facto appeal” of a state court action, Noel, 341 F.3d at 1158, and the district court is “in

24

essence being called upon to review the state court decision.” Reusser v. Wachovia Bank,

25

N.A., 525 F.3d 855, 859 (9th Cir. 2008) (quoting Feldman, 460 U.S. at 482 n.16). “To

26

determine whether an action functions as a de facto appeal, [courts] ‘pay close attention to

27

the relief sought by the federal-court plaintiff.’” Cooper v. Ramos, 704 F.3d 772, 777–78

28

(9th Cir. 2012) (quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003)). “[T]he
18
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1

clearest case for dismissal based on the Rooker-Feldman doctrine occurs when a federal

2

plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks

3

relief from a state court judgment based on that decision.” Reusser, 525 F.3d at 859

4

(quoting Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007)). In Noel v. Hall,

5

the Ninth Circuit provided a test to determine whether the doctrine applies: “If a federal

6

plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks

7

relief from a state court judgment based on that decision, Rooker-Feldman bars subject

8

matter jurisdiction in federal district court.” 341 F.3d at 1164.

9

Here, the FAC alleges due process violations as a result of the 6/23/2023 Opinion

10

and due process and equal protection violations as a result of the dismissal of B260735 by

11

a single justice. The FAC seeks declaratory relief that “reopen[s]” both the Appeal and

12

B260735, as well as declarations that the Appeal should be “re-decided with a published

13

opinion” and that B260735 should be “decided by a three-justice panel with the

14

concurrence of two.” (FAC ¶¶ 51, ii, iv, vi.) Plaintiff alleges in the FAC that his injury is

15

the 6/23/2023 Opinion—in which the Justice Defendants raised a new argument, did not

16

consider an argument Plaintiff raised in his opening brief, and decided that the opinion

17

would be unpublished, id. ¶¶ 11–12, 28—and the dismissal of B260735 by a single justice

18

of the Second District Court of Appeal, rather than by a three-justice panel with the

19

concurrence of two, id. ¶ 37. Based upon the allegations in the FAC, Plaintiff alleges that

20

his injuries resulted from legal errors by the Justice Defendants (and the Second District

21

Court of Appeal). See, e.g., id. ¶ 51, i (praying for relief as to “Count 1,” “[a] declaration

22

that the manner in which the 6/23/23 Opinion was rendered violated [Plaintiff’s] right to

23

due process”); id. ¶ 37 (“[Plaintiff] has been deprived of equal protection and due process

24

because B260735 was dismissed as untimely by a single justice.”). Plaintiff is seeking as

25

his remedy relief from the 6/23/2023 Opinion and the dismissal of B260735. Although

26

Plaintiff contends that his claims are not a de facto appeal and thus not barred by the

27

Rooker-Feldman doctrine, the FAC challenges these state court decisions and seeks relief

28
19
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1

that would require them to be vacated or voided. 7 Again, it would be impossible to “reopen”

2

the Appeal and B260735 to afford Plaintiff the relief he seeks without first invalidating the

3

state court decisions.

4

Additionally, Plaintiff’s claims are inextricably intertwined with the issues in the de

5

facto appeal because this Court would have to find that the Justice Defendants (and the

6

APJ in the Second District Court of Appeal) erred in order for Plaintiff to prevail. See

7

Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir. 2004) (“The federal plaintiff is

8

also barred from litigating, in a suit that contains a forbidden de facto appeal, any issues

9

that are ‘inextricably intertwined’ with issues in that de facto appeal.”); Doe & Assocs. L.

10

Offs. v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001) (“Where the district court must

11

hold that the state court was wrong in order to find in favor of the plaintiff, the issues

12

presented to both courts are inextricably intertwined.”). Plaintiff’s requests for relief related

13

to the Appeal and B260735 fall squarely within the Rooker-Feldman prohibition. See

14

Kougasian, 359 F.3d at 1140 (“Rooker-Feldman thus applies only when the federal

15

plaintiff both asserts as her injury legal error or errors by the state court and seeks as her

16

remedy relief from the state court judgment.”); see also Marciano v. White, 431 F. App’x

17

611, 612 (9th Cir. 2011) (approving dismissal under the Rooker-Feldman doctrine because

18

“Marciano claims that Judge White’s decisions defaulting him and awarding damages

19

against him caused him injury by violating his constitutional rights, and he seeks injunctive

20

relief overturning those decisions”).

21

With respect to Plaintiff’s contention that the Justice Defendants’ initial

22

determination not to publish the 6/23/2023 Opinion is not a “judgment” subject to the

23
24
25
26
27
28

7

As the Court previously noted, Plaintiff’s contention that he is not seeking review or rejection of the
6/23/2023 Opinion or this Court’s determination that the state court’s decision was erroneous (see ECF
No. 19 at 13, 23) is in contradiction with the relief sought in the FAC. (See FAC ¶ 14 (seeking a remedy
of a “declaratory judgment declaring the 6/23/23 Opinion void for being constitutionally infirm, and
declaring the Appeal reopened for future proceedings”); id. ¶ 38 (seeking a remedy “whereby B260735 is
reopened so that the question of timeliness can be determined by a three-justice panel with the concurrence
of two”).)
20
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1

Rooker-Feldman doctrine, district courts within the Ninth Circuit have held that challenges

2

to a state court decision not to publish an opinion are barred by Rooker-Feldman. See Rygg

3

v. Hulbert, No. C11-1827JLR, 2012 WL 12847290, at *8 (W.D. Wash. July 16, 2012)

4

(concluding that the plaintiffs’ allegations “that the creation of unpublished decisions [was]

5

unconstitutional,” which were based upon “the Court of Appeals’ decision not to publish

6

the opinions in Plaintiffs’ cases,” were “barred by Rooker-Feldman because the alleged

7

injuries stem from allegedly erroneous state court decisions”), aff’d, 611 F. App’x 900 (9th

8

Cir. 2015); Hild v. Cal. Sup. Ct., No. C 07-5107 TEH, 2008 WL 544469, at *8 (N.D. Cal.

9

Feb. 26, 2008) (determining that the plaintiff’s claim that the California Court of Appeal

10

“intentionally misapplied the criteria for certifying an opinion for publication” was “an

11

argument that the Court of Appeal acted improperly in Plaintiff’s state court case” and thus

12

“barred by Rooker-Feldman”).

13

Plaintiff’s related contention that the Rooker-Feldman doctrine is inapplicable to

14

“the decision to have B260735 determined by a single justice” because it “is not a judicial

15

judgment or order, but rather a decision made in an executive, quasi-attorney general

16

capacity” (ECF No. 19 at 28) is devoid of support. Plaintiff cites Verizon Md., 535 U.S. at

17

644 n.3, for the proposition that “Rooker-Feldman is inapplicable to administrative and/or

18

executive decisions.” (ECF No. 19 at 23, 28.) The footnote Plaintiff cites, however, merely

19

states that Rooker-Feldman “has no application to judicial review of executive action,

20

including determinations made by a state administrative agency.” Verizon Md., 535 U.S.

21

at 644 n.3 (emphasis added). Verizon Md. did not discuss the possibility of judges acting

22

in anything other than a judicial capacity, much less in a “quasi-attorney general capacity.”

23

The Court rejects Plaintiff’s contention that this Court’s review of the state court’s

24

“decision to have B260735 determined by a single justice” is exempt from the

25

Rooker-Feldman doctrine.8

26
27
28

8

The other cases Plaintiff cites are similarly unconvincing as to this issue. As the Justice Defendants point
out, Grant v. Johnson, 15 F.3d 146, 148 (9th Cir. 1994), explicitly held that a state court judge “acted in
21
23-cv-1251-WQH-JLB

1

As to Plaintiff’s timing argument, the Court of Appeal docket reflects that the state

2

court issued the final decision on June 23, 2023, which was prior to the filing of the present

3

case in federal court.9 Plaintiff contends that the state court decision had not ended prior to

4

the filing of the Complaint because Plaintiff had not filed his petition for rehearing or

5

petition for review in the California Supreme Court. The Court does not find that this

6

argument is sufficient for the Court to conclude the Rooker-Feldman doctrine is

7

inapplicable. See Marciano, 431 F. App’x at 613 (“Marciano has argued that

8

Rooker-Feldman cannot apply because there has not been a final state court decision in his

9

case. Marciano points to pending state court appeals, which he argues must be concluded

10

before Rooker-Feldman can apply. We disagree. The fact that Marciano filed his federal

11

suit before his state court appeals have concluded cannot be enough to open the door for a

12

federal district court to review the state court decisions. To hold otherwise would run

13

counter to the doctrine’s underlying principle that review of state court decisions must

14

proceed through the state appellate procedure and then to the United States Supreme

15

Court…. That the California Supreme Court has not yet resolved Marciano’s claim does

16

not mean Marciano can redirect that review so that it will be conducted by a federal district

17

court.”); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n.3 (9th Cir. 1986) (“We

18
19
20
21
22
23
24
25
26
27
28

an adjudicative capacity” when appointing a guardian. (See ECF No. 21 at 9 n.1.) Additionally, in
Georgevich v. Strauss, 772 F.2d 1078, 1087–88 (3d Cir. 1985), the United States Court of Appeals for the
Third Circuit concluded that state court judges were the proper defendants in a case challenging state
parole procedures because the judges were not “sued in their judicial capacity as neutral adjudicators of
disputes,” but rather “as enforcers of the statutes” and “administrators of the parole power.” Georgevich
did not, however, address the Rooker-Feldman doctrine, and it is unclear how Georgevich’s discussion of
judges’ “parole power” relates to the case at bar, which challenges the Second District Court of Appeal’s
dismissal of the B260735 appeal, an inherently judicial action taken in a judicial capacity as the “neutral
adjudicator” of a dispute. Id. at 1087.
9

The Court previously granted (see ECF No. 14 at 12 n.4) the Justice Defendants’ request to take judicial
notice of the Appeal docket (ECF No. 10-1 at 97–104). As to the other facts and documents the Justice
Defendants request judicial notice of (ECF No. 17-1 at 2–4), these requests are denied because the Court
need not consider them in ruling on the pending Motion to Dismiss First Amended Complaint. See Asvesta
v. Petroutsas, 580 F.3d 1000, 1010 n.12 (9th Cir. 2009) (denying request for judicial notice where judicial
notice would be “unnecessary”).
22
23-cv-1251-WQH-JLB

1

agree with the Second and Fifth Circuits that the Feldman doctrine should apply to state

2

judgments even though state court appeals are not final.”); Eicherly v. O’Leary, 721 F.

3

App’x 625, 627 (9th Cir. 2018) (“[W]e are satisfied that the state court decisions at issue

4

in this case are sufficiently final for Rooker-Feldman purposes. The purpose of the

5

Rooker-Feldman doctrine is to ensure that review of state court decisions proceeds through

6

the state appellate process and then, if necessary, to the Supreme Court of the United

7

States.”); see also Spindler v. City of Los Angeles, No. CV 17-250-JLS(E), 2018 WL

8

6164796, at *12 (C.D. Cal. Oct. 2, 2018) (collecting Ninth Circuit cases finding that the

9

Rooker-Feldman doctrine still applies despite pending appeals).10

10

As to Plaintiff’s contention that Rooker-Feldman does not apply because the state

11

court has not adjudicated or considered whether Plaintiff was afforded process, the Ninth

12

Circuit addressed this issue in Bianchi, 334 F.3d at 895. 11 The court found that the

13

plaintiff’s “claims would still be barred under Rooker-Feldman even if the state court had

14

not actually decided his constitutional claims.” Id. at 900. The court stated that “[t]he

15

Rooker-Feldman doctrine does not require us to determine whether or not the state court

16

fully and fairly adjudicated the constitutional claim.” Id. Elaborating on the distinction, the

17

court provided that “unlike res judicata, the Rooker-Feldman doctrine is not limited to

18
19
20
21
22
23
24
25
26
27
28

10

To the extent Plaintiff also intends to apply this timing argument to his claims relating to B260735, this
argument is belied by the allegations in the FAC and likewise fails. Because the FAC alleges that the
Appeal challenged the dismissal of the B260735 proceeding, the B260735 proceeding was necessarily
concluded prior to the filing of the Appeal, and, consequently, prior to the filing of the present case.
Moreover, while Plaintiff contends that Exxon Mobil Corp., 544 U.S. at 280, and Mothershed v.
Justs. of Sup. Ct., 410 F.3d 602 (9th Cir. 2005), suggest that a state court proceeding has only “ended”
when it is resolved by the state’s highest court (see ECF No. 19 at 15), the Ninth Circuit explicitly rejected
such an argument in Marciano. See Marciano, 431 F. App’x at 613 (stating that the plaintiff-appellant’s
reliance on Exxon and Mothershed to challenge the finality requirement was “unconvincing”).
11

Plaintiff contends that Bianchi was “overruled” by the Supreme Court’s decision in Exxon Mobil Corp.
in 2005. (ECF No. 19 at 17.) However, the Ninth Circuit has continued to rely upon the holding from
Bianchi that Plaintiff challenges. See, e.g., Hooper v. Brnovich, 56 F.4th 619, 626 (9th Cir. 2022) (holding
that the Rooker-Feldman doctrine barred federal courts from “adjudicating [the plaintiff-appellant’s]
procedural due process claim”). Plaintiff also contends that the Ninth Circuit “wrongly decided” Bianchi.
(ECF No. 19 at 16–18.) This Court, however, is bound by Ninth Circuit authority.
23
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1

claims that were actually decided by the state courts, but rather it precludes review of all

2

state court decisions in particular cases arising out of judicial proceedings even if those

3

challenges allege that the state court’s action was unconstitutional.” Id. at 901 (quotation

4

and citation omitted). “Stated plainly, Rooker-Feldman bars any suit that seeks to disrupt

5

or undo a prior state-court judgment, regardless of whether the state-court proceeding

6

afforded the federal-court plaintiff a full and fair opportunity to litigate her claims.” Id.

7

(quotation and citation omitted). Pursuant to Ninth Circuit authority, Plaintiff’s claims are

8

still barred under Rooker-Feldman even if the state court did not consider Plaintiff’s due

9

process and equal protection claims.

10

Accordingly, Plaintiff’s claims against the Justice Defendants that challenge “the

11

manner in which the 6/23/23 Opinion was rendered” and seek to “reopen” the Appeal and

12

B260735 are barred by the Rooker-Feldman doctrine, and the Court lacks subject matter

13

jurisdiction over these claims. (See FAC ¶¶ 51, i–ii, iv, vi.)

14

However, the Court agrees with Plaintiff that the FAC’s general constitutional

15

challenges to California court “system[s] and practice[s]” are not barred by

16

Rooker-Feldman because they do not require the Court to review a judicial decision in a

17

particular case. See id. ¶ 51, iii (seeking “[a] declaration that the practice of issuing

18

appellate decisions which are not part of California’s common law violates due process”);

19

id. ¶ 51, v (seeking “[a] declaration that the system and practice, whereby some appeals are

20

dismissed as untimely by a single justice, whereas other appeals are dismissed as untimely

21

by a three-justice panel with the concurrence of two, violates due process and equal

22

protection”); see also Kleidman v. RFF Fam. P’ship, LP, No. 2:22-cv-03947-SPG-AFM,

23

2023 WL 4495237, at *4 (C.D. Cal. Jan. 11, 2023) (concluding that the Rooker-Feldman

24

doctrine would not bar similar general constitutional challenges), aff’d, No. 23-55610,

25

2024 WL 3963837 (9th Cir. Aug. 28, 2024). As discussed below, however, Plaintiff lacks

26

standing to assert such claims. See infra at 25–27.

27

///

28

///
24
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c.

Article Three Standing

2

The Article III standing doctrine limits federal court jurisdiction. See La Asociacion

3

de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir.

4

2010). “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.”

5

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504

6

U.S. 555, 560 (1992)). In order to satisfy Article III’s standing requirements, a plaintiff

7

must show “(i) that he suffered an injury in fact that is concrete, particularized, and actual

8

or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury

9

would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413,

10

423 (2021) (citing Lujan, 504 U.S. at 560–61). Where a plaintiff seeks declaratory relief,

11

the plaintiff must show not only that he “has suffered or is threatened with a concrete and

12

particularized legal harm,” but also that there is “a sufficient likelihood that he will again

13

be wronged in a similar way.” Meinecke v. City of Seattle, 99 F.4th 514, 520 (9th Cir. 2024)

14

(citation omitted). “[A]llegations of possible future injury are not sufficient.” Davidson v.

15

Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (quoting Clapper v. Amnesty Int’l

16

USA, 568 U.S. 398, 409 (2013)). The party invoking federal jurisdiction bears the burden

17

of establishing that the standing requirements of Article III are satisfied. TransUnion LLC,

18

594 U.S. at 430–31. Although the Justice Defendants do not challenge Plaintiff’s Article

19

III standing in their Motion to Dismiss First Amended Complaint, the Court can—and

20

must—raise this issue sua sponte because it relates to the Court’s subject-matter

21

jurisdiction. 12 R.R. 1900, LLC v. City of Sacramento, 604 F. Supp. 3d 968, 973 n.2 (E.D.

22

Cal. 2022) (“Although the question of standing is not expressly raised in the [defendant’s]

23

motion to dismiss, standing is essential to the existence of subject matter jurisdiction, an

24

issue which may be raised sua sponte.” (citing Fed. R. Civ. P. 12(h)(3); Snell v. Cleveland,

25
26
27
28

12

The Justice Defendants’ Reply brief raises the issue of standing, but only in the context of contending
that the Court should not grant Plaintiff leave to amend to substitute the Chief Justice of the California
Supreme Court as a defendant with respect to Count Three. (See ECF No. 21 at 17–18.)
25
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Inc., 316 F.3d 822, 826 (9th Cir. 2002))); see Bernhardt v. County of Los Angeles, 279 F.3d

2

862, 868 (9th Cir. 2002) (“The district court had both the power and the duty to raise the

3

adequacy of [the plaintiff’s] standing sua sponte.”).

4

The Court specifically considers Plaintiff’s standing to bring the general

5

constitutional challenges that the FAC asserts against the Justice Defendants. (See FAC

6

¶ 51, iii (seeking “[a] declaration that the practice of issuing appellate decisions which are

7

not part of California’s common law violates due process”); id. ¶ 51, v (seeking “[a]

8

declaration that the system and practice, whereby some appeals are dismissed as untimely

9

by a single justice, whereas other appeals are dismissed as untimely by a three-justice panel

10

with the concurrence of two, violates due process and equal protection”).) Here, as

11

discussed above, the Rooker-Feldman doctrine bars Plaintiff from “reopening” the Appeal

12

or B260735. Because the Appeal and B260735 cannot be reopened by this Court in this

13

case, Plaintiff’s “only interest” in his “general constitutional challenge[s]” “is prospective

14

and hypothetical in nature.” Bianchi, 334 F.3d at 900 n.3 (quoting Facio v. Jones, 929 F.2d

15

541, 543 (10th Cir. 1991)). Plaintiff cannot rely solely on prospective and hypothetical

16

relief to establish standing. See Meinecke, 99 F.4th at 520; Davidson, 889 F.3d at 967. In

17

other words, Plaintiff’s general constitutional challenges are “inextricably intertwined”

18

with the relief he seeks with respect to the Appeal and B260735. Rooker-Feldman’s bar

19

against “reopening” the Appeal or B260735 renders the injuries Plaintiff allegedly suffered

20

as a result of the challenged rules or practices unable to “be redressed by judicial relief.”

21

TransUnion LLC, 594 U.S. at 423. Plaintiff thus lacks Article III standing to assert his

22

general constitutional challenges because “his situation is indistinguishable from anyone

23

else, without any palpable chance of being subjected to the [California courts’ practices]

24

in the future, who might desire to challenge the [practices].” Willhite, 2020 WL 5823278,

25

at *11.

26

Notably, on multiple occasions, the United States District Court for the Central

27

District of California has applied this same logic to reject Plaintiff’s similar general

28

challenges to California statutes and court rules for lack of standing. See, e.g., RFF Fam.
26
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P’ship, LP, 2023 WL 4495237, at *5 (“[B]ecause Rooker-Feldman precludes Plaintiff from

2

seeking a declaratory judgment invalidating the Vexatious Litigant Order, Plaintiff may

3

not ‘seek a declaratory judgment invalidating the state court rule on which the state court

4

decision relied, for [P]laintiff’s “request for declaratory relief [is] inextricably intertwined

5

with his request to [reopen] the state court’s judgment….”’ Plaintiff lacks Article III

6

standing to seek a declaratory judgment declaring the Vexatious Litigant Statute

7

unconstitutional.” (quoting Noel, 341 F.3d at 1158)); Willhite, 2020 WL 5823278, at *10

8

(“Plaintiff’s claims seeking a declaratory judgment invalidating the [California Supreme

9

Court’s “Great Public Importance Rule”] and Cal. R. Ct. 8.1115(a) are inextricably

10

intertwined with his request to vacate and set aside the state court judgments. Though

11

framed in the SAC as general constitutional challenges, only if his state court judgments

12

are set aside will he have standing to assert these constitutional challenges…. Plaintiff lacks

13

standing to assert these general constitutional challenges.”).

14

In sum, the FAC fails to allege “an injury in fact” that “would likely be redressed by

15

judicial relief” with respect to the FAC’s general constitutional challenges that are alleged

16

against the Justice Defendants. Plaintiff thus lacks Article III standing to assert his general

17

constitutional challenges to the California appellate courts’ practice of issuing unpublished

18

appellate decisions or of single-justice dismissals of untimely appeals. (See FAC ¶¶ 51, iii,

19

v.) Accordingly, these claims must be dismissed for lack of subject-matter jurisdiction,

20

leaving no viable claims remaining against the Justice Defendants. The Justice Defendants’

21

Motion to Dismiss First Amended Complaint is granted. 13

22

2.

Chief Judge Murguia

23

Chief Judge Murguia moves to dismiss the claim against her in the FAC on the

24

ground that Plaintiff lacks standing to assert such a claim. She contends Plaintiff “has failed

25

to allege a concrete injury in fact arising from either of the Ninth Circuit Rules he seeks to

26
27
28

13

The Court need not reach the remainder of the Justice Defendants’ arguments raised in the Motion to
Dismiss First Amended Complaint given the Court’s findings above.
27
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1

challenge.” (ECF No. 23 at 4.) Chief Judge Murguia contends Plaintiff’s challenge of Ninth

2

Circuit rules and practices relies upon an assumption that a theoretical chain of events will

3

occur—specifically, “this Court must … conclude that any decision issued by the Ninth

4

Circuit on a hypothetical future appeal would hypothetically be incorrect and that the

5

Supreme Court would deny further review.” Id. at 5.

6

Plaintiff contends that he has standing to assert his claim against Chief Judge

7

Murguia because this Court must accept as true Plaintiff’s allegation in the FAC that,

8

should Plaintiff lose in this Court, he intends to appeal this Court’s decision to the Ninth

9

Circuit. Alternatively, Plaintiff requests that, in order to establish standing, the Court

10

should either permit Plaintiff to amend the FAC to allege that the Justice Defendants will

11

appeal this Court’s decision to the Ninth Circuit or permit Plaintiff to engage in

12

jurisdictional discovery as to the standing issue. Plaintiff contends that he has alleged more

13

than the mere existence of the challenged rules and practices, as Ninth Circuit statistics

14

support the probability that his hypothetical appeal will be decided by a non-precedential

15

decision reflected in a “perfunctory memorandum or order.” (ECF No. 24 at 7.) With

16

respect to his challenge to the Rule of Interpanel Accord, Plaintiff requests leave to amend

17

to allege why there is a significant risk that the rule will be applied adversely to him in a

18

hypothetical appeal of this Court’s anticipated decision.

19

As the Court stated above, in order to have standing, a plaintiff must show, among

20

other things, “that he suffered an injury in fact that is concrete, particularized, and actual

21

or imminent.” TransUnion LLC, 594 U.S. at 423. While a threat of future harm can satisfy

22

the injury-in-fact requirement, a plaintiff “must show that the threat of future injury is

23

‘actual and imminent, not conjectural or hypothetical.’” Bolden-Hardge v. Off. of Cal. State

24

Controller, 63 F.4th 1215, 1220 (9th Cir. 2023) (quoting Summers v. Earth Island Inst.,

25

555 U.S. 488, 493 (2009)).

26

The FAC alleges that Plaintiff “has standing to prosecute a pre-enforcement

27

constitutional challenge to the Ninth Circuit’s rules and practices” because “[i]t is almost

28

certain that this case will be appealed” and “[Plaintiff] intends to appeal if he loses in this
28
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1

Court.” (FAC ¶ 44.) The FAC alleges “[t]here is a substantial probability (based on Ninth

2

Circuit statistics) that this case will be decided [by the Ninth Circuit] with a

3

non-precedential decision” and “a perfunctory memorandum or order, and so [Plaintiff]

4

now has standing to challenge the validity of [these practices] as a pre-enforcement

5

challenge.” Id. ¶¶ 48, 51.

6

The FAC’s claim against Chief Judge Murguia relies on mere statistical

7

probabilities, rather than actual threats of future injury. This claim is based upon a series

8

of presumptions: (1) a presumption that Plaintiff will lose the present case in this Court and

9

file an appeal, (2) a presumption that the challenged Ninth Circuit rule and practices—the

10

Rule of Interpanel Accord, the practice of issuing non-precedential decisions, and the

11

“practice of disposing of cases with perfunctory decisions”—will be applied in a manner

12

that is harmful to Plaintiff when the Ninth Circuit decides his hypothetical appeal, (3) a

13

presumption that the Ninth Circuit would deny en banc review of the panel’s hypothetical

14

decision in Plaintiff’s hypothetical appeal, and (4) a presumption that the Supreme Court

15

would hypothetically deny Plaintiff’s hypothetical petition for a writ of certiorari. Such a

16

speculative sequence of hypothetical events cannot satisfy Plaintiff’s burden of alleging

17

that the threat of future injury from the Ninth Circuit rule and practices is “actual and

18

imminent, not conjectural or hypothetical.” Bolden-Hardge, 63 F.4th at 1220.14

19
20
21
22
23
24
25
26
27
28

14

The cases Plaintiff cites in his Response in Opposition fail to persuade the Court otherwise. Although
Plaintiff is correct that, when analyzing standing at the pleading stage, the Court must “accept as true all
material allegations of the complaint and construe the complaint in favor of the complaining party,” taking
the allegations of the FAC as true does not negate the fact that the FAC relies upon a hypothetical sequence
of events that is not sufficiently concrete to establish Plaintiff’s standing. (See ECF No. 24 at 3–4 (citing
In re Silver Lake Grp., LLC Sec. Litig., 108 F.4th 1178, 1188 (9th Cir. 2024)).) Additionally, Plaintiff’s
“stated intent” to appeal to the Ninth Circuit if he loses in this Court does not alone establish a concrete
threat of future injury from the Ninth Circuit rule and practices and is thus distinguishable from a
plaintiff’s “stated intent to cast ballots.” See id. at 4 (citing Townley v. Miller, 722 F.3d 1128, 1134 (9th
Cir. 2013)). Finally, the discussion of standing in the false advertising context in Davidson, 889 F.3d at
967–70, is inapposite. Davidson answered the narrow question of “to what extent a previously deceived
consumer who brings a false advertising claim can allege that her inability to rely on the advertising in the
future is an injury insufficient to grant her Article III standing to seek injunctive relief,” id. at 967, which
29
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1

The Court’s reasoning is bolstered by other district courts’ conclusions that Plaintiff

2

lacked standing to assert similar preemptive challenges to the constitutionality of Ninth

3

Circuit rules. See, e.g., Kleidman v. Lui, No. 2:24-cv-02353-PA-JDE, 2024 WL 4338356,

4

at *6 (C.D. Cal. Aug. 27, 2024) (concluding that Plaintiff lacked standing to assert his

5

claim against Chief Judge Murguia challenging, inter alia, the Ninth Circuit’s Rule of

6

Interpanel Accord because Plaintiff’s “speculat[ion] that this action will be decided on

7

appeal and the Ninth Circuit ‘will adhere’ to the [Rule of Interpanel Accord]” is a “type of

8

conjecture [that] does not satisfy Article III standing”), adopted by No. 2:24-cv-02353-PA-

9

JDE, 2024 WL 4341543 (C.D. Cal. Sept. 26, 2024); Kleidman v. Danner, 743 F. Supp. 3d

10

1138, 1144 (N.D. Cal. 2024) (holding that the “connection between Mr. Kleidman’s

11

purported future injury and the Rule of Interpanel Accord is far too attenuated and

12

speculative to establish his Article III standing to challenge that Rule”); Willhite, 2020 WL

13

5823278, at *11 (“The mere existence of [Ninth Circuit Rule 36-3], which may or may not

14

be applied to Plaintiff in the future, is not sufficient to create a case or controversy within

15

the meaning of Article III…. Plaintiff’s alleged injury is entirely speculative, based on

16

multiple levels of conjecture and hypothetical future events.”).

17

Accordingly, the Court finds Plaintiff lacks Article III standing to contest the

18

constitutionality of the Ninth Circuit rules and practices challenged in the FAC. The FAC’s

19
20
21
22
23
24
25
26
27
28

is markedly distinct from the threat of future harm that Plaintiff attempts to establish through the
hypothetical chain of events in the case at bar.
Plaintiff’s request to conduct jurisdictional discovery “on the factual question of whether the
Justices intend to appeal if they lose in this Court” is similarly unavailing. (ECF No. 24 at 5.) Plaintiff’s
very proposal for jurisdictional discovery relies on a conditional, hypothetical circumstance—“if [the
Justice Defendants] lose in this Court.” Id. (emphasis added). Even supposing that the Justice Defendants
confirmed that they intend to appeal if they were to lose in this Court, answering that question alone would
not obviate the remaining series of hypotheticals upon which Plaintiff bases his standing to assert this
claim. The Court finds that, in the case at bar, conducting jurisdictional discovery would not aid Plaintiff
in establishing Article III standing.
30
23-cv-1251-WQH-JLB

1

claim against Chief Judge Murguia must be dismissed for lack of subject-matter

2

jurisdiction. 15

3

IV.

LEAVE TO AMEND

4

The Justice Defendants contend that the Court should deny Plaintiff leave to amend

5

because Plaintiff previously received leave to amend, Plaintiff “failed to cure any of the

6

deficiencies,” and further attempts to amend would be futile and create undue delay and

7

prejudice to the Justice Defendants. (ECF No. 17 at 21.) Plaintiff “requests leave to amend

8

to name Chief Justice Guerrero as the defendant in Count 3.” (ECF No. 19 at 26.) In their

9

Reply brief, the Justice Defendants contend that permitting Plaintiff to amend Count Three

10

to add Chief Justice Guerrero as a defendant would be futile because the claim would

11

continue to be barred by Eleventh Amendment sovereign immunity and the

12

Rooker-Feldman doctrine.

13

Chief Judge Murguia does not explicitly address whether the Court should grant

14

Plaintiff leave to amend. (See generally ECF Nos. 23 & 25.) Plaintiff requests leave to

15

amend his claim against Chief Judge Murguia “to better allege threatened harm.” (ECF No.

16

24 at 5; see also id. at 6–8, 11.)

17

Federal Rule of Civil Procedure 15 mandates that the court should “freely give”

18

leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be

19

applied with extreme liberality.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051

20

(9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court

21

considers whether there is “undue delay,” “bad faith,” “undue prejudice to the opposing

22

party,” or “futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “[L]eave to

23

amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v.

24

Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). “[W]e have held that a

25

district court does not abuse its discretion in denying a motion to amend where the movant

26
27
28

15

The Court need not reach the remainder of Chief Judge Murguia’s arguments raised in the Motion to
Dismiss Plaintiff’s First Amended Complaint in light of the Court’s findings above.
31
23-cv-1251-WQH-JLB

1

presents no new facts but only new theories and provides no satisfactory explanation for

2

his failure to fully develop his contentions originally.” Bonin v. Calderon, 59 F.3d 815,

3

845 (9th Cir. 1995); see also Boehm v. Shemaria, 478 F. App’x 457, 457 (9th Cir. 2012).

4

When amendment would be futile, the district court need not grant leave to amend. See

5

Carrico v. City & County of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011); Gompper

6

v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

7

Here, it is apparent that granting leave to amend as to Plaintiff’s claims against the

8

Justice Defendants would be futile because Plaintiff cannot cure the Justice Defendants’

9

Eleventh Amendment immunity, the applicability of the Rooker-Feldman doctrine, or his

10

lack of standing. See Steinmeyer v. Lab’y Corp. of Am. Holdings, 676 F. Supp. 3d 851, 867

11

(S.D. Cal. 2023) (denying leave to amend because “no amendment can fix the fundamental

12

defects that the Court lacks jurisdiction over Plaintiff’s de facto appeal and that Judge

13

Bubis is immune from suit for injunctive relief”); DJ St. John v. Tatro, No. 15-cv-2552-

14

GPC-JLB, 2016 WL 1162678, at *10 (S.D. Cal. Mar. 23, 2016) (denying leave to amend

15

due to incurable standing issues and the applicability of the Rooker-Feldman doctrine),

16

aff’d, 698 F. App’x 917 (9th Cir. 2017).

17

Plaintiff’s request to amend the FAC to name Chief Justice Guerrero as the defendant

18

in Count Three does not alter the Court’s analysis. Naming Chief Justice Guerrero as a

19

defendant would not remedy the immunity, standing, and Rooker-Feldman issues that

20

preclude the Court from exercising subject-matter jurisdiction over Count Three of the

21

FAC. Cf. Willhite, 2020 WL 5823278, at *13 (recommending that leave to amend be denied

22

because “even if the Court were to allow leave in order to name this additional defendant,

23

this would not alter the analysis on standing”); Matthews v. Foss, No. 23-cv-02800 BLF

24

(PR), 2024 WL 3678020, at *6 (N.D. Cal. Aug. 6, 2024) (“Because qualified immunity

25

would apply to any prison officer that was involved in the underlying events, the Court will

26

not grant leave to amend to attempt to name other defendants as such a claim would be

27

futile.”). For the reasons stated above, the Court dismisses the FAC without leave to amend

28

as to the claims against the Justice Defendants.
32
23-cv-1251-WQH-JLB

1

Although Plaintiff has not previously amended the claim against Chief Judge

2

Murguia, the Court has reviewed the amendments Plaintiff proposes in his Response in

3

Opposition, which continue to impermissibly rely upon hypotheticals and conjectures that

4

are insufficient to establish Plaintiff’s standing to assert his claim against Chief Judge

5

Murguia. (See, e.g., ECF No. 24 at 6 (requesting leave to amend to allege “that the

6

probability is upwards of 90% … that the upcoming appeal will be decided by a

7

non-precedential decision” (emphasis added)); id. at 7 (requesting leave to amend to allege

8

Plaintiff “will likely lose if the panel issues a perfunctory memorandum or perfunctory

9

dispositive order” (emphasis added)); id. at 8–9 (requesting leave to amend to allege “why

10

there is a significant risk that the [Rule of Interpanel Accord] will be applied adversely to

11

[Plaintiff] in the (likely) upcoming appeal” (emphasis added)).) Because the Court finds

12

that Plaintiff’s proposed amendments would be futile, the Court dismisses the FAC without

13

leave to amend as to the claim against Chief Judge Murguia. See Lui, 2024 WL 4338356,

14

at *7 (concluding that leave to amend was not warranted because the “deficiencies are not

15

the result of inartful pleading but are instead the result of legal deficiencies that cannot be

16

cured by further amendment”).

17

V.

CONCLUSION

18

IT IS HEREBY ORDERED that the Justice Defendants’ Motion to Dismiss First

19

Amended Complaint (ECF No. 17) is granted. The FAC is dismissed as to the claims

20

against the Justice Defendants without prejudice and without leave to amend.

21

IT IS FURTHER ORDERED that Chief Judge Murguia’s Motion to Dismiss

22

Plaintiff’s First Amended Complaint (ECF No. 23) is granted. The FAC is dismissed as to

23

the claim against Chief Judge Murguia without prejudice and without leave to amend. The

24

Clerk of the Court shall close this case.

25

Dated: March 10, 2025

26
27
28
33
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