usdc - dkt 22 - calif supreme court's motion to dismiss - filed 5-5-2010

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DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S

NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT

Kevin M. McCormick CSBN 115973BENTON, ORR, DUVAL & BUCKINGHAMA PROFESSIONAL CORPORATION39 North California StreetPost Office Box 1178Ventura, California 93002Telephone: (805) 648-5111Facsimile: (805) 648-7218E-mail: [email protected]

Attorneys for Defendant, The Supreme Courtof California

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

RICHARD I. FINE,

Plaintiff,

v.

STATE BAR OF CALIFORNIA,BOARD OF GOVERNORS OF THESTATE BAR OF CALIFORNIA,SCOTT DREXEL, CHIEF TRIALCOUNSEL OF THE STATE BAR OFCALIFORNIA, AND THE SUPREMECOURT OF CALIFORNIA (ONLY ASA NECESSARY PARTY),

Defendants.

CASE NO. CV 10-00048 JFW (CW)

NOTICE OF DEFENDANT, THES U P R E M E C O U R T O FCALIFORNIA’S NOTICE OFMOTION AND MOTION TOD I S M I S S C O M P L A I N T ;MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORTTHEREOF

[Federal Rules of Civil Procedure,Rules 12(b)(1) and (6)]

Date: June 1, 2010Time: 10:00 a.m.Ctrm: 640

255 E. Temple StreetLos Angeles, California

M. Judge: Hon. Carla Woerhle

NOTICE IS HEREBY GIVEN that on June 1, 2010 at 10:00 a.m., or as soon

thereafter as the parties may be heard, in Courtroom 640 of the United States District

Court, Central District, Western Division, located at 255 E. Temple Street, Los

Angeles, California, defendant, the Supreme Court of California, will and hereby does

move this court pursuant to Federal Rules of Civil Procedure (“F.R.Civ.P.”),

Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 of 22

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Rules12(b)(1) & (6), for dismissal of plaintiff in pro se, Richard I. Fine’s (“Fine”)

Complaint on the following grounds:

• This court lacks subject matter jurisdiction of the matters alleged in

Plaintiff’s Complaint as against the Court; and

• Plaintiff’s Complaint fails to set forth any cognizable claim upon which

relief may be granted as against the Court.

This Motion is based upon the Notice of Motion, the accompanying

Memorandum of Points and Authorities, the concurrently filed Request for Judicial

Notice (“RJN”), all pleadings and papers on file in this action and upon such other

matters as the court may allow to be presented at the time of the hearing on this

matter.

Pursuant to CD CA, L.R. 7-3 and 16-12(c), regarding pro se plaintiffs, no

prefiling conference is required prior to the filing of this Motion to Dismiss.

Dated: May 5, 2010 BENTON, ORR, DUVAL &BUCKINGHAM

By: /s/ Kevin M. McCormick Kevin M. McCormick

Attorneys for Defendant, the Supreme Courtof California


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TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . 3

I. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . 3

II. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. This Court Lacks Subject Matter Jurisdiction of Fine’sClaims for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The State Court Decision Disbarring Fine re Res Judicata and Cannot be Collaterally Attacked . . . . . . . . . . . . . . . . . . . 6

2. Fine’s Claims for Relief Are Barred by the Rooker-FeldmanDoctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Fine’s Complaint Fails to Allege Sufficient Facts to Statea Cognizable Legal Theory Against the Court, Let AloneAny Other Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Fine Cannot State a Cognizable Claim for Relief as Judicial Officers Who Receive Local Judicial BenefitsDo Not Have a Direct, Personal, Substantial, PecuniaryInterest in Matters Before Them Requiring Recusal . . . . . . 10

2. The Eleventh Amendment Bars Fines's 42 U.S.C. §1983 ClaimAgainst the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3. Fine’s Claims for Injunctive Relief is Barred by 42 U.S.C.§§1983 and 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4. Fine’s Prayer for Attorney’s Fees and Costs is Barredby Absolute Judicial Immunity. . . . . . . . . . . . . . . . . . . . . . .15

a. The First Prong of Absolute Judicial Immunity is Satisfied Because All of the Acts Alleged by Fine WerePerformed by the Court in its Official Capacity . . . . . 16

b. The Second Prong of Absolute Judicial Immunity is Satisfied Because the Acts Alleged Were Performed inMatters Which Were Before the Court . . . . . . . . . . . 16

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


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TABLE OF AUTHORITIES

Federal Cases

Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,9

Barren v. Harrington,152 F.3d 1193 (9th Cir. 1998), cert. den., 525 U.S. 1154 (1999) . . . . . . . . 14

Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Brown v. Felsen, 422 U.S. 127, 131(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bureerong v. Uvawas, 922 F.Supp. 1450(C.D.Cal.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Caperton v. A.T. Massey Coal Co., Inc., ___U.S.____ 129 S.Ct. 2252 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12

Cato v. United States, 70 F.3d 1103 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8

Emrich v. Touche Ross & Company, 846 F.2d 1190, 1194 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Federated Department Stores v. Mottie, 452 U.S. 394 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Forrester v. White, 484 U.S. 219, 108 S.Ct. 538 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Franceschi v. Schwartz, 57 F.3d 828 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hansen v. Black, 885 F.2d 642 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Johnson v. Duffy,588 F.2d 740 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


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Kentucky v. Graham,473 U.S. 159, 105 S.Ct. 3099 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Kruse v. Hawaii, 68 F.3d 331 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Lance v. Dennis, 546 U.S. 459, 126 S.Ct. 1198, 1201 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Leer v. Murphy,844 F.2d 628 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Meek v. County of Riverside, 183 F.3d 962 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 15

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 150 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Thompson v. City of Los Angeles,885 F.2d 1439, 1443 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Viqueira v. First Bank, 140 F.3d 12 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

West v. Atkin, 487 U.S. 42, 108 S.Ct. 2250 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Worldwide Church of God. v. McNair, 805 F.2d 888 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


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Federal Statutes and Rules

42 U.S.C.§1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14

42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Federal Rules of Civil Procedure, Rule 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Rules of Civil Procedure, Rule 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Rules of Civil Procedure, Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Rules of Civil Procedure, Rule 12(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State Cases

Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,11,12

State Statutes and Rules

California Code of Civil Procedure

Section 526a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

California Government Code

Section 68220-68222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 77000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Law Review Articles

Rooker-Feldman, From The Ground Up74 Notre Dame L.Rev. 1129, 1135 (1999) . . . . . . . . . . . . . . . . . . . 4,5,6,8,9


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1 RJN, Exhibit “B,” Records from the State Bar of California reflecting Fine’sdisbarment effective March 13, 2009.

2 Although Fine trumpets the various actions that he has filed against judicialofficers as evidence of his successful prosecution of alleged judicial corruption, hehas never prevailed in any attempt to disqualify a judicial officer (state or federal)based solely on the receipt of “local judicial benefits.” Complaint, ¶¶24-25. See also

RJN, Exhibit “A,” pp. 8-15 (outlining Fine’s numerous and unsuccessful attempts todisqualify judicial officers on the basis of receipt of local judicial benefits).Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los

Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. TheSturgeon decision specifically found that the payment of local judicial benefits wasneither a waste of taxpayer money nor a basis to seek recusal of a judicial officerreceiving such benefits. Id. at 637-39.

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MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTUAL AND PROCEDURAL BACKGROUND

Fine brings the present action against defendants, the Supreme Court of

California (the “Court”) and the State Bar of California, et al, arising from his

disbarment effective March 13, 2009.1 By way of his allegations, Fine charges the

Court, among others, with acts of fraud and moral turpitude (in connection with

the proceedings that ultimately led to his disbarment) on the basis that the Court

and other judicial officers received local judicial benefits.

As this court is well aware, Fine has a longstanding history of challenging

state and federal judicial officers who receive, or have received, local judicial

benefits - but only when that particular judicial officer ruled adversely to Fine or

his clients. When Fine prevailed in matters before judicial officers who received

such benefits, he remained curiously silent on the issue.

Notwithstanding Fine’s multiple and unsuccessful attempts to discredit

both state and federal judicial officers,2 he again, and in bad faith, raises the

specter of the payment of “local judicial benefits” as a purportedly valid basis to


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3 As is set forth in more detail at section III., infra, Fine’s petition to theSupreme Court of the United States to overturn the decision disbarring him wasdenied October 5, 2009, thereby barring this action under the principles of Res

Judicata and the Rooker-Feldman Doctrine. The decision of disbarment of theSupreme Court of California is now final and this court, being one of originaljurisdiction, lacks subject matter jurisdiction to act on Fine’s claims. See RJN,Exhibit “C,” ( Supreme Court docket reflecting that Fine’s Petition for Certiorari wasdenied on October 5, 2009).

4 Complaint, ¶¶2-3.

5 Complaint, ¶¶31-42; 44-47.

6 Initially, Fine claims that he named the Court for the sole purpose of it beinga “necessary party.” (Complaint, ¶16.) Fine’s true intent as to the naming of theCourt is evidenced by the multiple allegations of judicial corruption based uponreceipt of local judicial benefits and especially those leveled against Chief Justice

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overturn the final decision of the Court disbarring him from the practice of law in

the State of California.3

The crux of Fine’s Complaint alleges that the root of his disbarment arose

from his crusade to expose claimed illegal and unconstitutional payment of “local

judicial benefits” by the County of Los Angeles to Superior Court of California,

County of Los Angeles judicial officers.4

Fine goes on to claim that due to the failure of judicial officers to disclose

the receipt of local judicial benefits, every previous order and/or judgment entered

against Fine was the product of a void order as the judicial officers should have

recused themselves. Fine then concludes that the failure of the judicial officers to

recuse themselves voided all subsequent orders and/or judgments ab initio.5

By way of this action, Fine maliciously and disingenuously seeks to

impugn the integrity of the Court, and other judicial officers, by claiming that the

Court, among others, sought to fraudulently and corruptly prosecute Fine because

of Fine’s claim that they had acted criminally by accepting local judicial benefits.6


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George and Associate Justices Chin, Corrigan, Kennard, and Moreno. (Complaint,¶¶21-24; 27-29; 51; 65-67; 75-80; ) Fine is simply trying to relitigate an issue thathe has lost time and time again.

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Fine’s Complaint must be dismissed on the basis that this court lacks

subject matter jurisdiction as the Complaint is barred under Res Judicata and/or

the Rooker-Feldman doctrine. Alternatively, the Complaint must be dismissed as

it fails to set forth any legally cognizable claim for relief against the Court based

upon the receipt of local judicial benefits.

II. STANDARD OF REVIEW

A complaint may be dismissed, pursuant to F.R.Civ.P, Rule 12(b)(1), for

lack of subject matter jurisdiction. Neitzke v. Williams, 490 U.S. 319, 327 fn.6,

109 S.Ct. 1827 (1989) (patently insubstantial complaint may be dismissed under

Rule 12(b)(1) for lack of subject matter jurisdiction). Moreover, “[w]henever it

appears by suggestion of the parties or otherwise that the court lacks jurisdiction

of the subject matter, the court shall dismiss the action.” F.R.Civ.P., Rule

12(h)(3). A challenge to the court’s subject matter jurisdiction may be raised at

any time, including sua sponte by the court. Emrich v. Touche Ross & Company,

846 F.2d 1190, 1194, fn.2 (9th Cir. 1988).

Additionally, a complaint may be dismissed, pursuant to F.R.Civ.P., Rule

12(b)(6), for failure to state a claim for relief based on either a lack of a viable

legal theory or insufficient facts alleged under a cognizable legal theory.

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir 1990). F.R.Civ.P.,

Rule 8(a) requires that a complaint must contain a “short and plain” statement of

the claim showing that the plaintiff is entitled to relief. F.R.Civ.P., Rule 8(a)

further requires that “[e]ach averment of a pleading shall be simple, concise, and

direct.” A complaint may also be dismissed for failure to state a claim if it


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7 As stated, Fine’s attempt to gain United States Supreme Court review of theMarch 25, 2009 Order disbarring him was unsuccessful making that order final andnon-reviewable. That fact alone bars this lawsuit.

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discloses some fact that will defeat the claim.7 Franklin v. Murphy, 745 F.2d

1221, 1228-29 (9th Cir. 1984).

III. ARGUMENT

A. This Court Lacks Subject Matter Jurisdiction of Fine’s Claims

for Relief

The party asserting subject matter jurisdiction has the burden of proving

that the court has jurisdiction over the claims. Viqueira v. First Bank, 140 F.3d

12, 16 (1st Cir. 1998). Moreover, federal district courts are courts of original

jurisdiction and may not serve as appellate tribunals to review errors allegedly

committed by state courts. District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 476, 103 S.Ct. 1303, 1311(1983); Rooker v. Fidelity Trust Co., 263 U.S.

413, 415-16, 44 S.Ct. 149, 150 (1923) (the Rooker and Feldman decisions have

become known as the Rooker-Feldman doctrine). This Court lacks subject matter

jurisdiction as set forth below.

1. The State Court Decision Disbarring Fine is Res Judicata

and Cannot Be Collaterally Attacked

Fine’s claim for relief against the Court is barred under Res Judicata as

Fine now seeks federal district court review of a final decision of the Supreme

Court of the State of California after review was denied by the United States

Supreme Court. As stated by the Supreme Court in Brown v. Felsen, 442 U.S.

127, 131, 99 S.Ct. 2205 (1979):

“Res judicata ensures the finality of decisions. Under res judicata, ‘a

final judgment on the merits bars further claims by parties or their

privies based on the same cause of action.’ (Citation omitted). Res


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8 It is respectfully submitted that Fine’s continuing attack on the state andfederal judiciary for receipt of local judicial benefits has risen to the level ofvexatious litigation and should be treated as such.

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judicata prevents litigation of all grounds for, or defenses to,

recovery that were previously available to the parties, regardless of

whether they were asserted or determined in the prior proceeding.

(Citations omitted). Res judicata thus encourages reliance on judicial

decisions, bars vexatious litigation, and frees the courts to resolve

other disputes.” (Emphasis added.)8

The Supreme Court further elaborated on Res Judicata in Federated

Department Stores v. Mottie, 452 U.S. 394, 401-02, 101 S.Ct. 2424 (1981)

wherein it stated:

“This Court has long recognized that ‘[p]ublic policy dictates that

there be an end of litigation; that those who have contested an issue

shall be bound by the result of the contest, and that matters once

tried shall be considered forever settled as between the parties.’

(Citation omitted.) We have stressed that ‘[the] doctrine of res

judicata is not a mere matter of practice or procedure inherited from

a more technical time than ours. It is a rule of fundamental and

substantial justice, ‘of public policy and of private peace,’ which

should be cordially regarded and enforced by the courts....’

(Citation omitted.) ‘The predicament in which respondent finds

himself is of his own making ....[W]e cannot be expected, for his

sole relief, to upset the general and well-established doctrine of res

judicata, conceived in the light of the maxim that the interest of the

state requires that there be an end to litigation-a maxim which

comports with common sense as well as public policy.’”


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9 As stated, Fine sought and was denied review of his disbarment by theSupreme Court of the United States on October 5, 2009. See RJN, Exhibit “C.”

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The decision of the Court in disbarring Fine has become final and is not

subject to further review or collateral attack under Res Judicata. Fine’s Complaint

is barred and should be dismissed.

2. Fine's Claims for Relief Are Barred by the

Rooker-Feldman Doctrine

Under the Rooker-Feldman doctrine, “[t]he United States District Court, as

a court of original jurisdiction, has no authority to review the final determinations

of a state court in judicial proceedings.” Worldwide Church of God. v. McNair,

805 F.2d 888, 890 (9th Cir. 1986). “[T]he proper court in which to obtain such

review is the United States Supreme Court.” Id. (citing District of Columbia

Court of Appeals v. Feldman, supra, 460 U.S. 462, 103 S.Ct. at 1311).9

“This doctrine applies even when the challenge to the state court decision

involves federal constitutional issues.” Id. (citing District of Columbia Court of

Appeals v. Feldman, supra, 460 U.S. at 482-86 & n. 16, 103 S.Ct. at 1314-17 & n.

16). The district court may not consider constitutional claims if they are

“inextricably intertwined” with the state court’s decision in a particular case.

District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. at 483-84, n.

16, 103 S.Ct. at 1315, n. 16. The purpose behind the foregoing is to allow “the

state the first opportunity to consider a state statute or rule in light of federal

constitutional arguments.” Id. “In other words, Rooker-Feldman will bar not only

federal issues actually raised in the state court, but also those inextricably

intertwined issues that could have been raised there.” Barry Friedman & James E.

Gaylord, Rooker-Feldman, From the Ground Up, 74 Notre Dame L.Rev. 1129,

1135 (1999).

Moreover, the United States Supreme Court held the proper application of


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the Rooker-Feldman doctrine is to a federal lawsuit "brought by [a] state court

loser[] complaining of injuries caused by [a] state-court judgment[]." Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517 (2005);

accord Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 1201 (2006).

Simply stated, the basis of the Complaint, as it relates to the Court, is that a

majority of its members somehow acted unlawfully in disbarring Fine. Fine

obviously disagrees with this result and now seeks to have this adverse state court

decision reviewed by the federal district court, notwithstanding a previous denial

of his petition for certiorari to the Supreme Court of the United States.

The decision of the Court in disbarring Fine has become final and is not

subject to further review or collateral attack under the Rooker-Feldman doctrine.

Fine’s Complaint is barred and should be dismissed.

B. FINE’S COMPLAINT FAILS TO ALLEGE SUFFICIENT

FACTS TO STATE A COGNIZABLE LEGAL THEORY

AGAINST THE COURT, LET ALONE ANY OTHER

DEFENDANT

A motion to dismiss is proper where there is either a “lack of a cognizable

legal theory” or “the absence of sufficient facts alleged under a cognizable legal

theory.” Balistreri v. Pacifica Police Dept., supra, 901 F.2d 696, 699. The

Complaint is subject to dismissal where, as here, “one cannot determine from the

complaint who is being sued, for what relief, and on what theory, with enough

detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

While pro se pleadings are liberally construed, a pro se action should be

dismissed if, after careful consideration, the court concludes that the allegations of

the complaint disclose that no cognizable claim can be stated and that amendment

would be futile. Cato v. United States, 70 F.3d 1103, passim (9th Cir. 1995). The

court need not accept as true unreasonable inferences, unwarranted deductions of


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10 By Fine’s reasoning, in any California state court matter where the Stateitself is a party, any state court judicial officer would be automatically disqualifiedand must recuse themselves as the state legislature is responsible for setting andpaying the judicial officer’s compensation. Taking this argument to the extreme, Fineappears to contend that in any federal matter where the United States is a party resultsin the automatic disqualification of any federal jurist as their compensation is set andpaid by the United States government. This would be an absurd result.

10



fact, or conclusory legal allegations cast in the form of factual allegations.

Bureerong v. Uvawas, 922 F.Supp. 1450, 1462 (C.D.Cal.1996).

1. Fine Cannot State a Cognizable Claim for Relief as

Judicial Officers Who Receive Local Judicial Benefits Do

Not Have a Direct, Personal, Substantial, Pecuniary

Interest in Matters Before Them Requiring Recusal

Fine contends that the mere receipt of local judicial benefits, in and of

itself, establishes that judicial officers receiving such benefits are required to

recuse themselves from litigation involving the County of Los Angeles.10 Fine

bases this contention on the notion that the receipt of local judicial benefits

constituted a direct, personal, substantial, pecuniary interest in the outcome of the

litigation. This contention is the foundation of Fine’s claim that he was somehow

the subject of a fraud and wrongfully disbarred. This argument has no basis in fact

or law.

Fine will no doubt argue that the holding in Caperton v. A.T. Massey Coal

Co., Inc., ___U.S.___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), somehow

supports his contention regarding the payment of local judicial benefits. In

Caperton, the United States Supreme Court dealt with an extreme example of a

judicial election campaign contribution resulting is an objectively verifiable

appearance of judicial bias. At issue was a $3 million dollar contribution made by

a state court litigant to the election campaign of a practicing attorney in an effort


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to elect that individual to a seat on the West Virginia Supreme Court. The state

court litigant knew that it would seek review of the $50 million trial court verdict

rendered against it and made the contribution for the purpose of substantially

increasing the chances of the recipient of the contribution to be elected to that

reviewing court. Ultimately, though by a narrow margin, the challenger was

elected to the West Virginia Supreme Court. Notwithstanding challenges by the

victorious state court litigant for disqualification, the motions were denied and the

newly elected jurist presided over the appeal of the $50 million verdict, ultimately

voting with the majority to reverse the judgment entered against the party that had

made the $3 million election campaign contribution.

In reviewing the fact of the campaign contribution, the amount the

contribution bore in relation to all other contributions made for the benefit of the

challenger, and the entire campaign budget of the incumbent justice, the Supreme

Court found that the $3 million contribution was so disproportionate so as to

objectively establish that the newly elected justice was biased and should have

recused himself from the matter. The Supreme Court formulated the test for bias

in that circumstance as follows:

“The inquiry is an objective one. The Court asks not whether the

judge is actually, subjectively biased, but whether the average judge

is his position is ‘likely’ to be neutral, or whether there is an

unconstitutional ‘potential for bias.’” Id. at 129 S.Ct. 2262.

In the matter of Sturgeon v. County of Los Angeles, supra, 167 Cal.App.4th

630, the California Court of Appeal held that the payment of local judicial benefits

by the County of Los Angeles to judicial officers of the Superior Court of

California, County of Los Angeles was not unconstitutional per se. In so holding,

the California Court of Appeal emphasized that:

• The payment of local judicial benefits by the County of Los Angeles


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11 Effective May 21, 2009, and subsequent to the Sturgeon decision, theCalifornia legislature enacted Senate Bill 11 which explicitly extended existingcounty-provided benefits for judges, establishing standards, and specificallyproviding as follows:

"Notwithstanding any other law, no governmental entity, or officer or employeeof a governmental entity, shall incur any liability or be subject to prosecution ordisciplinary action because of benefits provided to a judge under the official actionof a governmental entity prior to the effective date of this act on the ground that thosebenefits were not authorized under the law." See 2009 Cal. Legis. Serv., 2nd Ex.Sess., Chap. 9 (S.B. 11). Senate Bill 11 has since been codified as California

Government Code, sections 68220-68222.12



was unconstitutional only because the duty to set compensation for

state judicial officers was a non-delegable duty imposed upon the

state legislature;

• Local judicial benefits were statutorily authorized by the Lockyer-

Isenberg Trial Court Funding Act of 1997, California Government

Code, section 77000, et seq.; and

• The argument that the payment of local judicial benefits represented

an unconstitutional gift of public funds under the California

Constitution or represented a waste of public funds pursuant to

California Code of Civil Procedure, section 526a was without merit.

Id. at 635, 642-630.

Based upon the holdings of the Caperton and Sturgeon decisions, and the

subsequent enactment of California Senate Bill 11,11 it is clear that Fine’s

contention that a judicial officer’s receipt of local judicial benefits as creating an

objective probability of actual bias is without either factual or legal support. The

character of the benefits do not bear any resemblance to the facts of the Caperton

decision and simply do not provide a basis for recusal of the judicial officer

receiving those benefits.


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The receipt of local judicial benefits does not in any manner support or

corroborate Fine’s allegation that his disbarment was the result of fraud

perpetuated on and/or participated in by the Court. Fine cannot state a cognizable

claim for relief on the basis of the receipt of local judicial benefits and his

Complaint should be dismissed.

2. The Eleventh Amendment Bars Fines’s 42 U.S.C. §1983

Claim Against the Court

Fine simply names the Court as a party defendant in this action. The

Eleventh Amendment to the United States Constitution bars §1983 suits against

States. It has been stated "that ‘States or governmental entities that are considered

"arms of the state" for Eleventh Amendment purposes' are not persons within the

meaning of 1983." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th

Cir. 1989). Judges acting in their official capacity are considered "arms of the

state". Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995). Moreover,

state officials may not be sued for damages in their official capacities. Leer v.

Murphy, 844 F.2d 628 (9th Cir. 1988).

Further, "[p]ersonal-capacity suits seek to impose personal liability upon a

governmental official for actions he takes under color of law." Kentucky v.

Graham 473 U.S. 159, 165, 105 S.Ct. 3099, 3105 (1985). Conversely,

"[o]fficial-capacity suits . . . ‘generally represent only another way of pleading an

action against an entity of which the officer is an agent.'" Id.

To state a civil rights claim against an individual defendant, a plaintiff must

allege facts showing the defendant's personal involvement in the constitutional

deprivation or a causal connection between the defendant's alleged wrongful

conduct and the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642,

646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). "A

plaintiff must allege facts, not simply conclusions, that show an individual was


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personally involved in the deprivation of his civil rights." Barren v. Harrington,

152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).

Fine simply fails to allege any fact establishing the personal involvement of

any member of the Court in the alleged deprivation of his civil rights. As a result,

Fine's Complaint against the Court is barred and must be dismissed.

3. Fine’s Claim for Injunctive Relief is Barred by 42 U.S.C. §§

1983 and 1985

42 U.S.C. § 1983 provides in relevant part:

“[I]n any action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.”

Specifically, to establish a claim for injunctive relief under Section 1983, a

plaintiff must establish two elements: 1) a violation of a right secured by the

Constitution or laws of the United States; and 2) that the violation was committed

by a person acting under color of state law. See, e.g., West v. Atkin, 487 U.S. 42,

48, 108 S.Ct. 2250 (1988). “To obtain injunctive relief, a reasonable showing of a

sufficient likelihood that plaintiff will be injured again is necessary.” Kruse v.

Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and alteration

omitted.) Under this provision, Fine cannot seek injunctive relief as there are no

allegations of any declaratory decree which has been violated or that declaratory

relief was unavailable to him. Fine sought United States Supreme Court review of

his disbarment which was denied.

To establish a claim under Section 1985(3), Fine must demonstrate four

elements: 1) a conspiracy 2) for the purpose of depriving a person of equal

protection of the laws; 3) an act in furtherance of the conspiracy; and that 4)

deprives a person of a legally protected right. Sever v. Alaska Pulp Corp., 978


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F.2d 1529, 1536 (9th Cir. 1992).

Fine has failed to demonstrate a substantial likelihood that he will be injured

in the future by any act on the part of the named defendants (the complained of

acts have already occurred) and all that he has alleged against the defendants are

acts occurring during valid state court proceedings resulting in his disbarment.

Based upon the foregoing, Fine’s Complaint fails to set forth any cognizable

claim for relief, injunctive or otherwise, and should be dismissed.

4. Fine’s Prayer for Attorney’s Fees and Costs is Barred by

Absolute Judicial Immunity

“A long line of United State Supreme Court’s precedents acknowledges

that, generally, a judge is immune from a suit for money damages.” Mireles v.

Waco, 502 U.S. 9, 112 S.Ct. 286 (1991). “Like other forms of official immunity,

judicial immunity is an immunity from suit, not just from ultimate assessment of

damages.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985).

Further, the Ninth Circuit has held that subordinate state court officers (such as

court commissioners) enjoy judicial immunity. Meek v. County of Riverside, 183

F.3d 962 (9th Cir. 1994); Franceschi v. Schwartz, supra, 57 F.3d 828. Judicial

immunity is a defense to an action under 42 U.S.C.§1983. See Bauers v. Heisel,

361 F.2d 581 (3d Cir. 1966), and cases cited therein; Pierson v. Ray, 386 U.S. 547,

87 S. Ct. 1213 (1967).

The United States Supreme Court, in Stump v. Sparkman, 435 U.S. 349,

362, 98 S.Ct. 1099 (1978), made clear that "whether an act by a judge is a 'judicial'

one relate[s] to the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties, i.e., whether they

dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 1108; see

also Forrester v. White, 484 U.S. 219, 227-229, 108 S.Ct. 538 (1988).


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It is a judicial officer’s duty to decide all cases within the court’s

jurisdiction that are brought before that officer, including controversial cases that

arouse the most intense feelings in the litigants. Errors may be corrected on

appeal, but the judicial officer should not have to fear that unsatisfied litigants

may hound the court with litigation charging malice or corruption. Imposing such

a burden on the court and its judicial officers would contribute not to principled

and fearless decision making, but lead to intimidation. Pierson v. Ray, supra, 386

U.S. at 554, 87 S.Ct. at 1218.

a. The First Prong of Absolute Judicial Immunity is

Satisfied Because All of The Acts Alleged by Fine

Were Performed by the Court in its Official Capacity

Fine admits that the Court acted in its official capacity during the pendency

of the disbarment proceedings thus establishing the first prong for judicial

immunity is satisfied.

b. The Second Prong of Absolute Judicial Immunity is

Satisfied Because the Alleged Acts Were Performed

in Matters Which Were Before the Court.

Fine admits that the alleged acts occurred in matters before state courts,

meeting the second prong of the immunity inquiry. As a result, Fine’s claim for

recovery of attorney’s fees and costs is barred by absolute judicial immunity.

V. CONCLUSION

Based upon the foregoing, it is respectfully submitted that the Complaint be

dismissed with prejudice and that this court find that any further litigation brought

by Fine regarding the receipt of local judicial benefits be declared vexatious in

nature and subject to summary dismissal.

/ / / / /

/ / / / /


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Dated: May 5, 2010 BENTON, ORR, DUVAL &BUCKINGHAM

By: /s/ Kevin M. McCormick Kevin M. McCormick

Attorneys for Defendant, the Supreme Courtof California


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PROOF OF SERVICEFine v. State Bar of California, et al.Case No.: CV10-00048 JFW (CW)

STATE OF CALIFORNIA, COUNTY OF VENTURA

I am employed in the County of Ventura, State of California. I am over theage of 18 and not a party to the within action. My business address is 39 N.California Street, Ventura, CA 93001.

On May 5, 2010, I served the foregoing document(s) described as: DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S NOTICE OFMOTION AND MOTION TO DISMISS COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT THEREOF on theinterested parties in this action by placing ____ an original XXX a copy thereofenclosed in a sealed envelope addressed as follows:

Richard I. Fine, BK # 1824367Twin Towers Correctional Facility 450 Bauchet StreetLos Angeles, CA 90012

Tracey L. McCormickOffice of General Counsel180 Howard StreetSan Francisco, CA 94105-1639

XXX BY FIRST CLASS MAIL) ____ (BY EXPRESS MAIL) I caused suchenvelope with postage thereon fully prepared to be placed in the United Statesmail at Ventura, California. I am “readily familiar” with the firm’s practice ofcollection and processing correspondence for mailing. It is deposited with theU.S. Postal Service on that same day in the ordinary course of business. I amaware that on motion of the party served, service is presumed invalid if postalcancellation date or postage meter date is more than one day after date of depositfor mailing in affidavit.

XXX (Federal) I declare that I am employed in the office of a member of thebar of this court at whose direction the service was made. I declare under penaltyof perjury that the foregoing is true and correct.

Executed on May 5, 2010, at Ventura, California

/s/ Valerie Lopez Valerie Lopez


usdc - dkt 22 - calif supreme court's motion to dismiss - filed 5-5-2010

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