Levi v. State Bar of California et al

MEMORANDUM of Points and Authorities in Support of 11 Motion to Dismiss Plaintiff's First Amended Complaint

N.D. Cal.October 4, 2007

Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARIE M. MOFFAT (62167) LAWRENCE C. YEE (84208) MARK TORRES-GIL (91597) DANIELLE A. LEE (223675 STATE BAR OF CALIFORNIA OFFICE OF GENERAL COUNSEL 180 Howard Street San Francisco, CA 94105-1639 Telephone: (415) 538-2012 Fax: (415) 538-2321 Email: mark.torresgil@calbar.ca.gov JAMES M. WAGSTAFFE (95535) MICHAEL VON LOEWENFELDT (178665) KERR & WAGSTAFFE LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105–1528 Telephone: (415) 371-8500 Fax: (415) 371-0500 Attorneys for Defendants The State Bar Of California, Judy Johnson, Debra Lawson, Patrice McElroy, State Bar Court, Committee Of Bar Examiners, Allen Malmquist IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (San Francisco) SIMON LEVI, Plaintiff, v. STATE BAR OF CALIFORNIA, JUDY JOHNSON, DEBRA LAWSON, PATRICE McELROY, STATE BAR COURT, COMMITTEE OF BAR EXAMINERS, ALLEN MALMQUIST, CALIFORNIA SUPREME COURT, CHIEF JUSTICE RONALD M. GEORGE, ASSOCIATE JUSTICE CARLOS R. MORENO, ASSOCIATE JUSTICE JOYCE L. KENNARD, ASSOCIATE JUSTICE KATHRYN MICKLE WERDEGAR, ASSOCIATE JUSTICE MING W. CHIN, ASSOCIATE JUSTICE MARVIN R. BAXTER, ASSOCIATE JUSTICE CAROL A. CORRIGAN, Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE BAR DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Case No. C 07-04378-MHP Date: November 26, 2007 Time: 4:00 p.m. Place: Courtroom 15, 18th Floor Hon. Marilyn Hall Patel Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 1 of 29 i Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGES I. INTRODUCTION ...............................................................................................................1 II. BACKGROUND .................................................................................................................2 A. Nature Of The State Bar Of California ....................................................................2 B. The Individual State Bar Defendants.......................................................................4 C. Levi’s Long Moral Character History With The State Bar......................................4 1. Levi’s First Failed Application ....................................................................5 2. Levi’s Second Failed Application................................................................6 3. Levi’s Failed Petition to the Supreme Court of California ..........................7 4. Levi’s Lawsuit in Superior Court ................................................................7 III. ARGUMENT ......................................................................................................................8 A. Under FRCP Rule 12(b)(1), Levi’s Complaint Should Be Dismissed For Lack Of Subject Matter Jurisdiction .................................................................8 1. The Eleventh Amendment Bars Levi’s Suit ................................................8 a. The Eleventh Amendment Bars All Claims Against the State Bar and the State Bar Court, and the Committee of Bar Examiners...........................................................8 b. The Eleventh Amendment Bars All Claims Against Individually Named State Bar Defendants, Judge McElroy and Staff of the Committee of Bar Examiners Acting in Their Official Capacities ................................8 2. Rooker-Feldman Jurisdictionally Bars Levi’s Claims.................................9 3. The Court Lacks Subject Matter Jurisdiction to Hear Levi’s Claims as there is No Case or Controversy ...................................12 B. Rule 12(b)(6) Dictates That Levi’s Complaint Should Be Dismissed For Failure To State A Claim Upon Which Relief Can Be Granted .....................13 1. Legal Standard for Motion to Dismiss.......................................................13 2. Res Judicata and Collateral Estoppel Bar Levi’s Claims...........................14 3. Levi Fails to Allege a Federal Deprivation................................................17 4. Levi Fails to State a State Law Claim for Fraud........................................19 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 2 of 29 ii Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGES 5. Levi’s Request for Injunctive Relief Is Improper and Should Be Denied ......................................................................................20 IV. CONCLUSION..................................................................................................................21 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 3 of 29 iii Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pages Federal Cases Abbot Labs v. Gardner, 387 U.S. 136, 87 S.Ct. 1507 (1967)...................................................................................12 American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (9th Cir. 1991) .............................................................................................12 Armstrong v Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)..........................................................18 Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, ___, L.Ed.2d ___ (2007)..................................................13,14,17 Bullen v. De Brettville, 239 F.2d 824 (9th Cir. 1956) ..............................................................................................12 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336 (9th Cir. 1996) ................................................................................................13 Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967) ..............................................................................................13 Chappel v. Robbins, 73 F.3d 918 (9th Cir. 1960) ................................................................................................13 Clinton v. Acequia, Inc., 94 F.3d 568 (9th Cir. 1996) ................................................................................................12 Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)..................................................................14 Craig v. State Bar of California, 141 F.3d 1353 (9th Cir. 1998) .............................................................................................9 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 75 L.Ed.2d 206 (1983)............................................2,9,10,11 DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53 (9th Cir. 1999) ...............................................................................................17 Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)..........................................................9 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)....................................................10 Giannini v. Committee of Bar Examiners of the State Bar of California, 847 F.2d 1434 (9th Cir. 1988) ............................................................................................13 Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) ..........................................................................................3,18 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 4 of 29 iv Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pages Gupta v. Thai Airways, Int’l, LTD, 487 F.3d 759 (9th Cir. 2007) ..............................................................................................14 Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)..........................................................9 Hirsh v. Justices of the Supreme Court of California et al., 67 F.3d 708 (9th Cir. 1995) ................................................................................3,8,11,13,18 Kenneally v. Lungren, 967 F.2d 329 (9th Cir. 1992) .............................................................................................18 Lupert v. California State Bar, 761 F.2d 1325 (9th Cir. 1985), cert. denied, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985) .................................................................................8 MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969) ...............................................................................................9 Margulis v. State Bar of California, 845 F.2d 215 (9th Cir. 1988) ..............................................................................................13 Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)............................................................18 Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)......................................................10 Miller v. Rykoff –Sexton, Inc., 845 F.2d 209 (9th Cir. 1998) .............................................................................................21 Missouri v. Fiske, 290 U.S 18, 54 S.Ct. 18, 78 L.Ed. 145 (1933)....................................................................... Mothershed v. Justices of Supreme Court, 410 F.3d 602 (9th Cir. 2005) ................................................................................................8 Nunes v. Ashcroft, 348 F.3d 815 (9th Cir. 2003) .............................................................................................21 Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) .............................................................................................20 Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992) ............................................................................................8,9 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ..........................................................................8 Peterson v. Jensen, 371 F.3d 1199 (9th Cir. 2004).........................................................................................................13 Price v. Akaka, 928 F.2d 824 (9th Cir. 1990).............................................................................................................2 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 5 of 29 v Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pages Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984 .......................................................21 Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923)................................................................8 In re Rosenthal, 854 F.2d 1187 (9th Cir. 1988) ...........................................................................................18 Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561 (9th Cir. 1990) ............................................................................................2,3 Saul v. United States, 928 F.2d 829 (9th Cir. 1991) .............................................................................................21 Seaborn v. State of Florida, Dept. of Corrections, 143 F.3d 1405 (11th Cir. 1998) ...........................................................................................8 Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377 (1916).......................................................................................18 Western Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ..............................................................................................13 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). ....................................................................................13 California Cases In re Attorney Discipline System, 19 Cal.4th 582, 79 Cal.Rptr.2d 836 (1998)..........................................................................2 Bostick v. Flex Equip. Co. Inc., 147 Cal.App.4th 80 (2007) ................................................................................................15 Goehring v. Chapman Univ., 121 Cal.App.4th 353, 17 Cal.Rptr.3d 39 (4th Dist. 2004)............................................19,20 Green v. Zank 158 Cal.App.3d 497 (1984) .................................................................................................3 Los Angeles Airways, Inc. v. Hughs Tool Co., 95 Cal.App.3d 1 (1979) .....................................................................................................15 In Re Menna, 11 Cal.4th 975, 47 Cal.Rptr.2d 2 (1995)...............................................................................3 People v. Barragan, 32 Cal.4th 236, 9 Cal.Rptr.3d 76 (2004)............................................................................14 Roos v. Red, 130 Cal.App.4th 870 (2005) ..............................................................................................16 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 6 of 29 vi Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Comp. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pages In re Rose, 22 Cal.4th 430, 93 Cal.Rptr.2d 298 (2000)...............................................................2,3,4,15 Small v. Fritz Co., Inc., 30 Cal.4th 167, 132 Cal.Rptr.3d 490 (2003)......................................................................19 Vandenberg v. Superior Court, 21 Cal.4th 815, 88 Cal.Rptr.2d 366 (1999)........................................................................15 Constitutions California Constitution Article VI, Section 9 ..........................................................................................................2 Rules California Rules of Court Rule 9.12 ......................................................................................................................3 Rule 9.13 ......................................................................................................................4 Rule 9.13(d) ......................................................................................................................3 Rule 9.16(b) ......................................................................................................................4 Rule 9.18(c) ......................................................................................................................4 Federal Rules of Civil Procedure Rule 8(a)(2) ....................................................................................................................14 Rule 12(b)(1) ......................................................................................................................8 Rule 12(b)(6) ....................................................................................................................13 Rules of Procedure of the State Bar of California Rule 300 ...............................................................................................................................3 Rules Regulating the Practice of Law in California Rule I ..................................................................................................................................3 Rule X, Section 1 ................................................................................................................3 Statutes California Business and Professions Code Section 6000 ......................................................................................................................3 Section 6001 ......................................................................................................................2 Section 6060, subdivision 9d)..............................................................................................3 Section 6064 ......................................................................................................................3 Section 6066 ......................................................................................................................3 California Civil Code Section 1709.......................................................................................................................19 United States Code Title 28, Section 1257..........................................................................................................9 Title 28, Section 1291..........................................................................................................9 Title 28, Section 1331..........................................................................................................9 Title 28, Section 1738........................................................................................................14 Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 7 of 29 1 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Mr. Levi is yet again attempting to sue his way into the California bar. He has filed two unsuccessful moral character applications (“First Failed Application” and “Second Failed Application”) and he has no other application pending.1 He has drafted numerous pleadings and filed lawsuits as part of his attempts to gain admission.2 This complaint, however, may well violate every known judicial pleading requirement, law school education notwithstanding. Instead of stating his legal and factual basis for a federal claim, Mr. Levi asserts a self-styled cause of action called “recusal.” Levi then engages in a two-part discussion of his Second Failed Application that the California Supreme Court rejected for review and of a state court lawsuit he dismissed regarding matters related to the same failed application. Levi then asks this court to dismantle fundamental state government infrastructure by 1) voiding the entire basis of his Second Failed Application, 2) neutering the entire State Bar of California3 for the purposes of some hypothetical future application and 3) commandeering one of the Governor’s regulatory agencies in the event he should ever decide to submit another moral character application. Well-established federal decisional law renders each and every part of his requested injunction worthless. 1) The Eleventh Amendment immunizes the State Bar and its employees in their official capacity4 against Levi’s lawsuit; 2) the ripeness doctrine prevents this court from 1 In his First Amended Complaint (“FAC”), Levi omits the allegation that was in his original complaint that he has submitted a third application to the California bar. In his original complaint, he named the California bar and its officials; in his First Amended Complaint, he has added the Supreme Court of California and its Chief Justice and Associate Justices. 2 Levi appears pro se in this matter. Though in some circumstances pro se litigants are entitled to some leeway in pleadings, the rule is premised in their presumed unfamiliarity with the law and legal proceedings. Levi, however, graduated from law school and passed the California Bar examination. Thus, the rationale for flexibility in reviewing claims by pro se litigants does not apply to Levi. 3 “State Bar.” 4 Levi’s complaint does not state whether defendants are being sued in their personal or official capacities. Indeed, he is not suing defendants for monetary damages but is solely seeking injunctive relief relating to the official functions of the State Bar. Moreover, the basis for relief Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 8 of 29 2 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 considering Levi’s claims as the Court has no way of knowing whether Levi will ever submit a third moral character application; and 3) the Rooker Feldman5 doctrine forecloses Levi’s attempt to appeal the decision in his state court proceedings to this federal district court.6 Moreover, Levi fails to state a claim, he is estopped from relitigating his claims, and his requested equitable relief is plainly improper. Levi’s lawsuit should be dismissed with prejudice. II. BACKGROUND A. Nature Of The State Bar Of California Article VI, section 9 of the California Constitution establishes the State Bar and expressly acknowledges it as intrinsic to the judiciary.7 The California Supreme Court characterizes it as sui generis – its “administrative arm” for attorney admission and discipline.8 Although the State Bar enjoys statutory authority, the California Supreme Court explicitly and emphatically retains absolute control over all attorney matters. Only the California Supreme Court has the authority to grant or deny admission to the bar.9 The State Bar's Board of Governors established the Committee of Bar Examiners10 to: sought arises from conduct in connection with his moral character proceedings. Therefore, it is clear that Levi sues defendants in their official capacities only. See Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990) (where a plaintiff fails to identify the capacity in which the state actor is sued, the Ninth Circuit looks beyond the caption of the complaint to the “basis of the claims asserted and the nature of the relief sought.” 5 Named after Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 75 L.Ed.2d 206 (1983). 6 There are far too many legal insufficiencies in Mr. Levi’s complaint to be thoroughly vetted in Defendants’ motion. 7 See Cal. Const., art. VI, § 9; Cal. Bus. & Prof. Code, § 6001; In re Rose, 22 Cal.4th 430, 438, 93 Cal.Rptr.2d 298 (2000). 8 See In re Attorney Discipline System, 19 Cal.4th 582, 598-600, 79 Cal.Rptr.2d 836 (1998); see also Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561, 566 (9th Cir. 1990). 9 In re Rose, 22 Cal.4th at 436. 10 “Committee”. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 9 of 29 3 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) examine applicants; (b) administer admissions requirements; and (c) certify successful applicants to the Supreme Court.11 The Committee can only certify applicants with good moral character.12 ‘Good moral character’ includes honesty, fairness, candor, trustworthiness, observance or fiduciary responsibility, respect for and obedience to state and national law, respect for others’ rights and the judicial process. The applicant must establish that he has good moral character.13 Again, the Committee’s decision is only a recommendation,14 as the California Supreme Court retains its authority to admit individuals to practice.15 California provides constitutionally sufficient procedural due process in admissions and discipline.16 If the Committee determines that the applicant does not have good moral character, he has the right to several levels of review. First, he may partake in a State Bar Court Hearing Department17 formal evidentiary hearing.18 Second, the State Bar Court Review Department19 then conducts an independent de novo review.20 Third, the California Supreme Court reviews petitions from applicants refused certification.21 The California Supreme Court review follows 11 See Rules Regulating Admission to Practice Law in California, rule I, Cal. Bus. & Prof. Code, § 6064. See also Green v. Zank 158 Cal.App.3d 497, 505 (1984). 12 Cal. Bus. & Prof. Code, § 6060, subd. (d). 13 Rules Regulating Admission to Practice Law in California, rule X, Section 1. 14 Green, 158 Cal.App.3d at 505. 15 In re Menna, 11 Cal.4th 975, 984-985, 47 Cal.Rptr.2d 2 (1995); Rose, 22 Cal.4th at 453. See Cal. Bus. & Prof. Code, § 6000 et seq. 16 Giannini v. Real, 911 F.2d 354, 357 (9th Cir. 1990) (state rules providing for State Supreme Court to review State Bar’s denial of an applicant's admission to practice law satisfies the requirements of due process); Rosenthal, 910 F.2d at 564-65; see Hirsh v. Justices of the Supreme Court of California et al., 67 F.3d 708, 713 (9th Cir. 1995) (California’s disciplinary procedures provide adequate opportunity for judicial review of federal claims). 17 “Hearing Department”. 18 In re Menna, 11 Cal.4th at 984-985. 19 “Review Department”. 20 Cal. Rules of Ct., rule 9.12; State Bar Procedural Rules, rule 300, et seq. 21 Cal. Rules of Ct, rule 9.13(d); Cal. Bus. & Prof. Code, § 6066. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 10 of 29 4 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 naturally from the admissions process, as State Bar Court decisions are only recommendations. The California Supreme Court undertakes an independent determination as to whether the attorney should be disciplined (or denied admission) as recommended.22 The California Supreme Court’s denial of a State Bar Court decision is a final judicial determination on the merits.23 B. The Individual State Bar Defendants 1. Judy Johnson: The State Bar employs Ms. Johnson as its Executive Director. Ms. Johnson has direct oversight authority over all bar operations. 2. Hon. Patrice McElroy: The Honorable Patrice McElroy is a State Bar Court Hearing Department judge. As part of her employment duties and responsibilities, Judge McElroy presided over and heard Levi’s request for review of his Second Failed Application. Judge McElroy issued the Hearing Department decision filed March 18, 2004.24 3. Debra Lawson: The State Bar employs Ms. Lawson as Moral Character Determination Office Director. 4. Allen Malmquist (Malmquist’s first name is incorrectly spelled “Alan” in the First Amendment Complaint): The State Bar employs Mr. Malmquist as a Moral Character Analyst in the Moral Character Determinations Office. C. Levi’s Long Moral Character History With The State Bar Levi twice attempted unsuccessfully to gain admission to the bar. Levi’s two prior applications for admission were denied on moral character grounds. Each time, the Hearing Department conducted an extensive evidentiary hearing. Levi did not seek California Supreme Court review of his First Failed Application. The California Supreme Court denied his petition for review of his Second Failed Application. Levi then sued the State Bar in superior court 22 See In re Rose, 22 Cal.4th at 439. 23 Id., at 443-45; Cal. Rules of Ct., rules 9.13, 9.16(b), 9.18(c). 24 See March 2004 Hearing Order “Judge McElroy’s Order” a true and correct copy of which is attached to State Bar Defendants’ Request for Judicial Notice (“RJN”), filed herewith, as Exhibit 3. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 11 of 29 5 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleging, inter alia, that State Bar law clerk, Rachel Abelson (“Abelson”), improperly disclosed confidential information about him to Sara Raymond (“Raymond”), a fellow Golden Gate Law School student he sexually harassed. Levi ultimately dismissed the superior court action. These proceedings are summarized in more detail below. 1. Levi’s First Failed Application. Levi graduated from San Francisco Law School, passed the California Bar examination, and submitted his first moral character application in or about 1997.25 The Committee denied his first moral character application in June 1998.26 Levi requested review of the Committee’s determination in the Hearing Department.27 On December 7, 1999, the Hearing Department issued its decision denying Levi’s application for admission due to multiple incidents reflecting inadequate moral character. The Hearing Department found that Levi had filed frivolous lawsuits against Safeway, behaved aggressively and threatening towards Safeway’s counsel, impersonated a police officer while working as a process server, assaulted – and was convicted for – physically attacking a woman and pepper-spraying both her and her five-year-old daughter while serving papers, and that Levi lacked candor while presenting his case.28 Levi appealed to the Review Department. On April 12, 2001, the Review Department affirmed the Hearing Department’s conclusion. The Review Department expressed concern that Levi’s past misconduct raised serious issues as to his reliability and ability as a lawyer to handle 25 See State Bar Court Review Department’s April 12, 2001 Order In the Matter of Simon S. Levi, An Applicant for Admission, Case No 99-M-10079, “First Review Dept. Denial” a true and correct copy of which is attached to RJN, as Exhibit 2, p 5, ¶3. 26 Judge McElroy’s Order, RJN, Exh 3, p. 3, line 26. 27 See State Bar Court Hearing Department’s December 7, 1999 Order In the Matter of Simon S. Levi, Applicant for Admission, Case No 99-M-10079 NRL, “First Hearing Dept. Denial,” a true and correct copy of which is attached to RJN as Exhibit 1, p. 2, lines 1-12. 28 First Hearing Dept. Denial, RJN, Exh 1, p. 15, Conclusions, ¶2 –5. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 12 of 29 6 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 serious affairs in an appropriate and non-violent or abusive manner.29 Levi did not seek further review of this decision. 2. Levi’s Second Failed Application. In August 1999, Levi enrolled in an L.L.M. program at Golden Gate Law School.30 On March 20, 2001, he filed his second moral character application.31 On June 13, 2002, again, the Committee declined to certify him.32 On June 18, 2002, again, Levi requested a hearing.33 Judge Patrice McElroy held a three-day hearing before filing her decision on March 18, 2004, affirming the Committee’s conclusion due to his sexual harassment of Raymond and his failure to report such conduct on his application, among other things. Again, Levi appealed. On September 16, 2005, the Review Department affirmed the Hearing Department’s conclusion. The Review Department found that Levi continued to resort to intemperate, intimidating, and inappropriate behavior, such that his efforts at rehabilitation were unfinished and insufficient. The Review Department noted that at the same time that Levi was litigating the first denial of admission, he on numerous occasions seriously disregarded the rights of others.34 He repeatedly sexually harassed Raymond, abused the law school’s e-mail communication system, sending a barrage of unwanted messages to students, and launched a vituperative, personal and inappropriate verbal attack against the Dean of Golden Gate Law School.35 This time Levi sought review by the California Supreme Court. 29 First Review Dept. Denial, RJN, Exh 2, p. 41, ¶1. 30 Judge McElroy’s Order, RJN, Exh. 3, page 6, lines 1-2. 31 Judge McElroy’s Order, RJN, Exh. 3, page 1, lines 21-22. 32 Judge McElroy’s Order, RJN, Exh. 3, page 1, lines 22-23. 33 Judge McElroy’s Order, RJN, Exh. 3, page 1, lines 23-24. 34 See State Bar Court Review Department’s September 16, 2005 Order In the Matter of Simon S. Levi, Applicant for Admission to Practice Law, Case No. 02-M-12939, “Second Review Dept. Denial,” a true and correct copy of which is attached to RJN as Exhibit 4, p. 2, ¶2. 35 Second Review Dept. Denial, RJN, Exh. 4, p. 2, ¶2. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 13 of 29 7 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Levi’s Failed Petition in the Supreme Court of California On November 15, 2005, Levi petitioned the California Supreme Court for review of the Review Department’s September 16, 2005 decision. Levi alleged that the Review Department committed numerous factual and legal errors. Levi also alleged, among other things, that the Hearing Department erred by not reopening discovery regarding his sexual harassment of Raymond. He contended that he had discovered that a fellow Golden Gate Law School student, Abelson, disclosed confidential information about him to Raymond; information that Abelson purportedly obtained while working as a law clerk for the State Bar’s disciplinary prosecution division – the Office of the Chief Trial Counsel.36 On January 4, 2006, the California Supreme Court denied Levi’s petition for review.37 4. Levi’s Lawsuit in Superior Court On November 24, 2004, Levi sued the State Bar, a senior State Bar prosecutor, and Abelson, in the superior court alleging various causes of action stemming from Abelson’s purported disclosure of confidential State Bar information to Raymond, his intended paramour. Levi voluntarily dismissed the action while the parties were engaged in an interim appeal of the court’s decision denying in part and granting in part defendants’ special motion to strike. The superior court made no factual determinations as to the merits of Levi’s accusations, particularly as to whether or not Abelson disclosed confidential information. Contrary to Levi’s assertion that the State Bar improperly disclosed confidential information38 there has been no finding by any court in this regard. Indeed, the State Bar denies that any such improper disclosure ever occurred. 36 See November 15, 2006 Petition for Review of State Bar Court Decision Denying Certification, In re Simon S. Levi on Admission Supreme Court Case S138884, “Supreme Court Petition” a true and correct copy of which is attached to RJN, as Exhibit 5, page 26, section G. 1. 37 See January 4, 2006 Supreme Court Order In re Simon S. Levi on Admission S.B.C. No. 02-12939, S138884, “Supreme Court Denial,” a true and correct copy of which is attached to RJN as Exhibit 6. 38 See e.g. FAC, p. 4:23-27. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 14 of 29 8 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. Under FRCP Rule 12(b)(1), Levi’s Complaint Should Be Dismissed For Lack Of Subject Matter Jurisdiction 1. The Eleventh Amendment Bar’s Levi’s Suit a. The Eleventh Amendment Bars All Claims Against the State Bar, the State Bar Court, and the Committee of Bar Examiners The Eleventh Amendment proscribes federal court suits against a state or one of its agencies absent consent.39 The State Bar’s character as ‘arm of the State’ extends to Eleventh Amendment immunity.40 This jurisdictional bar applies regardless of the nature of the relief sought.41 Eleventh Amendment immunity applies to pendent or supplemental state law claims as well.42 Accordingly, the Eleventh Amendment bars all claims against the State Bar and the State Bar Court. Since Levi fails to state facts sufficient to invoke the Court’s subject matter jurisdiction, his complaint should be dismissed in its entirety.43 b. The Eleventh Amendment Bars Levi’s Claims Against the Individually Named State Bar Defendants, Judge McElroy, and Staff of the Committee of Bar Examiners Acting in Their Official Capacities The Eleventh Amendment also extends its bar to federal action for damages, or other retroactive equitable relief, against government agencies to its state officials acting in their 39 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). 40 Hirsh, 67 F.3d at 715 (“The Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state agencies such as California’s Bar Association and Bar Court.”); see also Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985), cert. denied, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985). 41 Pennhurst, 465 U.S. at 100-01; see also Missouri v. Fiske, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145 (1933). 42 Pennhurst, 465 U.S. at 120-121. 43 Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (defense of Eleventh Amendment is a jurisdictional bar); Seaborn v. Florida Dep’t. of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 15 of 29 9 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 official capacities.44 The Eleventh Amendment, however, does not bar a request for prospective injunctive relief for continuing federal law violations.45 Levi requests two forms of equitable relief: both against the individually named defendants for actions in their official capacity; one retroactive, i.e. nullification of the State Bar Court’s second decision rejecting his application for admission, and one prospective, i.e. disqualification of the State Bar from processing some hypothetical third application. The Eleventh Amendment bars Levi’s request for retroactive injunctive relief against the individually named State Bar defendants in their official capacities. 2. Rooker-Feldman Jurisdictionally Bars Levi’s Claims Levi’s claims solely arise from the California Supreme Court’s decision to deny him admission. The relief he asks this court for is review and reversal of the unfavorable California Supreme Court judgment denying his admission: i.e. issue an order nullifying Judge McElroy Decision on his Second Failed Application.46 Congress left the authority to review state court decisions with the United States Supreme Court when it established an Article III court system and not with the lower federal courts.47 Only the United States Supreme Court can review final state court judgments on attorney admission, discipline, and disbarment of members. The lower federal courts have no authority to review such decisions via an original action.48 This jurisdictional limitation on the federal court's power is known as the Rooker-Feldman doctrine.49 Attorney regulatory matters are at the core of the Rooker-Feldman doctrine. In Feldman, District of Columbia Bar rules denied Marc Feldman permission to sit for the bar examination 44 Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hafer v. Melo, 502 U.S. 21, 24-25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Pena, 976 F.2d at 472 (same). 45 Id., at n. 5, Edelman, 415 U.S. at 664. 46 FAC, p. 13:7-8. 47 28 U.S.C. §§ 1257, 1291, 1331. 48 See MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969); Craig v. State Bar of California, 141 F.3d 1353 (9th Cir. 1998). 49 Rooker, 263 U.S. at 413; Feldman, 460 U.S. at 465-66. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 16 of 29 10 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because he did not attend law school.50 Feldman argued that the denial of his petition violated the Fifth Amendment and federal antitrust laws, and sought an injunction either admitting him or permitting him to take the exam.51 The Supreme Court analogized admissions decisions to disciplinary proceedings thereby finding that admissions decisions are judicial in nature.52 Next, the Supreme Court parsed Feldman’s claims: (1) denial of the plaintiffs' application – not within the district court's jurisdiction – and (2) a general constitutional challenge to the bar rule. The Court decided that only it could hear challenges to allegedly unconstitutional individual judicial state court decisions, and that the lower district court could hear most general constitutional challenges to state bar rules. The Court, however, also kept original jurisdiction for those general constitutional challenges where it was impossible to analyze the general challenge without reviewing an individual final state court decision or without interpreting state law or procedure53 – this is Rooker Feldman’s inexorably intertwined doctrine.54 The Ninth Circuit55 and the Supreme Court56 have both reaffirmed Rooker-Feldman’s core principles. Here, granting Levi’s request would necessarily require this court to reverse the California Supreme Court’s decision denying 50 Id. at 465-66. A companion case alleged the same claim for another applicant. Id. at 470- 73. 51 Id. at 468-69. 52 Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Feldman, 460 U.S. at 482. 53 Id. at 485. 54 Id. at 486-87. 55 Mothershed v. Justices of Supreme Court, 410 F.3d 602 (9th Cir. 2005) (dismissing action on Rooker-Feldman grounds concluding that district court lacked subject matter jurisdiction to hear plaintiff’s allegation that defendants’ failed to properly apply State Bar rule to his own disciplinary action). 56 See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (federal complaints that invite review and reversal of unfavorable state- court judgments out of bounds.). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 17 of 29 11 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his petition for review. This is exactly the type of individualized challenge and de facto appeal prohibited under the Rooker-Feldman doctrine that cannot be brought in federal district court.57 United States District Courts ... have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional. Review of those decisions may be had only in [the United States Supreme Court].58 If claims raised in the federal action are ‘inextricably intertwined’ with the state court's decision such that adjudication of the federal claims would undercut the state ruling or require the district court to interpret the application of state laws or procedural rules, then the federal complaint must be dismissed for lack of subject matter jurisdiction.59 Though Rooker-Feldman does not prohibit a general constitutional challenge,60 Levi does not even allege a general challenge: Levi only challenges his treatment during the State Bar proceedings and blatantly seeks to undercut the California Supreme Court’s decision by voiding the State Bar Court’s recommendation denying him admission to the bar.61 Indeed, Levi’s complaint constitutes a textbook individualized challenge to the California Supreme Court’s decision to reject his application for admission. Therefore, this Court lacks subject matter jurisdiction to hear Levi’s claims.62 57 Mothershed, 410 F.3d at 607. 58 Feldman, 460 U.S. at 486. 59 Id. at 486-487. 60 Id. at 483. 61 See e.g. FAC, pp. 6:22 – 8:22. 62 Levi suggests that there exists a bias exception to the Rooker-Feldman doctrine. FAC at 12: n. 1. There is no such exception. It appears Levi is confusing the Rooker-Feldman doctrine with the Younger abstention doctrine that does provide that abstention is inappropriate if the state tribunal is incompetent by reason of bias. See Hirsh, 67 F.3d at 713. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 18 of 29 12 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Court Lacks Subject Matter Jurisdiction to Hear Levi’s Claims as there Is No Case or Controversy Levi’s primary objective in this complaint is to prevent the State Bar from evaluating a theoretical third moral character application, should he decide to submit one in the future.63 Any action that rests on a future contingency that may or may not occur, however, is not ripe for review.64 Levi has not alleged that he has a third moral character application pending and, in fact, he may never do so. In a very real sense, his claims are theoretical and abstract with no immediate and real concrete impact on any of the parties. The “basic rationale” of Article III ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”65 Nor can Levi claim hardship should the Court decline to consider his claims.66 Levi alone has the means to determine the timing of his next moral character application. Of course, it is entirely possible that Levi won’t file a third application at all given his last two failed attempts as well as his reluctance to reform or accept responsibility for his malfeasance. In fact, Levi may very well be betting on this Court’s intervention to make his decision for him. Levi’s gambling impulses aside, however, he will suffer no harm should the Court reject his claims on ripeness grounds. The full and fair procedures of the California Supreme Court’s admissions and moral 63 Levi’s First Amended Complaint no longer alleges that Levi submitted a third moral character application to the State Bar (see Complaint, former paragraph 18 [alleging that Levi “recently” submitted an incomplete moral character application to the State Bar]). Therefore, for purposes of considering the State Bar’s motion to dismiss Levi’s First Amended Complaint, there are no allegations that Levi has submitted a third moral character application to the State Bar, that one is presently pending, or that he ever intends to do so, Bullen v. De Brettville, 239 F.2d 824, 833 (9th Cir. 1956) (an amended pleading supercedes the original). 64 Clinton v. Acequia, Inc., 94 F.3d 568, 572-73 (9th Cir. 1996) (breach of contract claim is unripe and presents no case or controversy where dispute hangs on whether party will or will not exercise agreement to liquidate corporation in the future). 65 Abbot Labs v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507 (1967). 66 American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501, 510 (9th Cir. 1991) (in deciding whether controversy is “ripe” for judicial determination, court should consider whether issues are fit for judicial decision and whether parties will suffer hardship if court declines to consider issues). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 19 of 29 13 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 character process will remain available to him. This action would present no case or controversy unless and until he applied for a new moral character determination and, if there is a third negative recommendation, has sought review by the California Supreme Court. The Ninth Circuit has clearly held that any plaintiff who fails to appeal a State Bar recommendation for admission to the California Supreme Court has not been denied any cognizable rights.67 68 B. Rule 12(b)(6) Dictates That Levi’s Complaint Should Be Dismissed For Failure To State A Claim Upon Which Relief Can Be Granted69 1. Legal Standard for Motion to Dismiss. Rule 12(b)(6) tests the legal sufficiency of a complaint’s claims.70 Statutory or common law immunity can also be the basis for dismissal.71 While the Court must assume all factual allegations to be true, it need not accept legal conclusions disguised as factual allegations.”72 In Bell Atlantic Corp. v. Twombly,73 the Supreme Court cast aside the commonly accepted principle that a complaint should not be dismissed unless it appears beyond doubt that 67 See Giannini v. Comm. Of Bar Exam’rs of the State Bar of California, 847 F.2d 1434, 1435 (9th Cir. 1988); Margulis v. State Bar of California, 845 F.2d 215, 216-217 (9th Cir. 1988); Chaney v. State Bar of California, 386 F.2d 962, 963, 966 (9th Cir. 1967). 68 Levi appears to have omitted the allegation that he has submitted a third moral character application to the State Bar in order to avoid the application of Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). The Younger abstention doctrine requires “abstention in favor of state proceedings (1) that are ongoing, (2) implicate important state interests, and (3) provide the plaintiff with an adequate opportunity to litigate federal claims.” See Hirsh, 67 F.3d at 712. If Levi had a third application pending, abstention would be appropriate to avoid interfering with an ongoing judicial proceeding in an area of particular interest to the state, i.e. attorney admissions matters. 69 Federal Rules of Civil Procedure, or FRCP (“Rule”). 70 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337 (9th Cir. 1996). 71 Peterson v. Jensen, 371 F.3d 1199, 1201-02 (9th Cir. 2004); Chappel v. Robbins, 73 F.3d 918, 920 (9th Cir. 1960). 72 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 73 ___ U.S. ___, 127 S.Ct. 1955, 1974, ___, L.Ed.2d ___ (2007). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 20 of 29 14 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no set of facts74 would entitle plaintiff to relief. The Court refined and heightened the “plain statement”75 pleading standard to assess a pleading’s adequacy: it requires the plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.”76 The Supreme Court’s decision suggest pleadings now require “enough heft” to show plausible entitlement to relief.77 2. Res Judicata and Collateral Estoppel Bar Levi’s Claims Levi impermissibly attempts to re-litigate issues that his state court proceedings claims already addressed. Specifically, Levi asks the court to review (1) his own conflict waiver of Judge McElroy’s sua sponte disclosure that she once worked for Golden Gate Law School Dean, Peter Keane,78 (2) Abelson’s alleged disclosure of confidential State Bar information concerning Levi, (3) his sexual harassment of a fellow law student and his treatment by Golden Gate Law School officials, (4) various alleged due process violations from his Second Failed Application and (5) allegedly false statements made during his Second Application about monies he owed to the Internal Revenue Service.79 The Ninth Circuit and the Full Faith and Credit Statute require application of California law to determine whether California Supreme Court affirmation of the State Bar Court recommendation, has any preclusive effect on the issues Levi raises.80 Under California law, res judicata precludes parties or their privies from relitigating a cause of action finally resolved in a prior proceeding.81 “Res judicata also includes the broader principle of collateral estoppel. Collateral estoppel makes a party live with the decision in an earlier suit if that party raises the 74 Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). 75 Rule 8(a)(2). 76 Twombly, 127 S.Ct. at 1974 (emphasis added). 77 Id. at 1966. 78 FAC, p. 9:19-24; see Judge McElroy’s Order, RJN, Exh 3, p. 8, fn. 4. 79 FAC, p. 7:2-13. 80 See Gupta v. Thai Airways, Int’l, LTD, 487 F.3d 759, 765 (9th Cir. 2007); see also 28 U.S.C. § 1738. 81 See People v. Barragan, 32 Cal.4th 236, 252-53, 9 Cal.Rptr.3d 76 (2004). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 21 of 29 15 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 same issue in two different lawsuits. This conclusive determination applies only if the issue was “necessarily decided” as part of the earlier suit.82 “Necessarily decided” means that the issue’s resolution cannot have been entirely unnecessary to the earlier suit’s judgment.83 Finality and judicial economy make courts reluctant to reopen a final judgment.84 Levi asks that this court revisit Judge McElroy’s alleged conflict of interest.85 It is an unavoidable inference that the California Supreme Court considered this issue when rejecting Levi’s petition for review because the basis for the denial of admission was his Second Failed Application: 1) His moral character was litigated in the state proceeding; 2) he alleges Judge McElroy tainted his moral character proceeding; and 3) the California Supreme Court affirmed the refusal to certify moral character.86 That decision is final and on the merits, even without oral argument or written decision.87 Levi claims that he has newly discovered information that Judge McElroy’s interactions were more extensive than was previously disclosed and that he would not have waived any conflict if he had that knowledge. This allegedly new information is not new “evidence” – it does not impact any fact at issue in the underlying proceedings. Nor has Levi demonstrated that this information was not previously available to him. Judge McElroy disclosed their connection: Levi made the choice to waive the conflict. And Levi made the choice not to explore the matter further: 1) he could have followed up on the letter he purportedly sent to Judge McElroy for 82 See Vandenberg v. Superior Court, 21 Cal.4th 815, 828, 99 Cal.Rptr.2d 366 (1999). 83 Bostick v. Flex Equip. Co. Inc., 147 Cal.App.4th 80, 97 (2007) (internal quotations marks omitted). 84 Los Angeles Airways, Inc. v. Hughs Tool Co., 95 Cal.App.3d 1, 6-7 (1979). 85 Judge McElroy discussed the issue of her prior employment with Dean Keane in her Hearing Department decision of March 18, 2004. See Judge McElroy’s Order, RJN, Exh 3, p. 8, fn. 4. 86 Supreme Court Denial, Exh. 6. 87 In re Rose, 22 Cal.4th at 446-48. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 22 of 29 16 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more information88, 2) he could have asked for a continuance to consider the issue, or 3) he could have simply not waived the conflict.89 Finally, even if this information constituted new previously unavailable “evidence”, collateral estoppel will still apply if the new evidence goes only to the weight of the evidence that supports Levi.90 The alleged new information proffered by Levi regarding Judge McElroy’s interactions with Dean Keane has no impact on the weight of the evidence at all. The facts that support his denial for admission are strong, indisputable and well supported by independent evidence. Moreover, Levi does not allege that Judge McElroy made any improper disclosures to Dean Keane related to his State Bar Court proceeding. He alleges only that Judge McElroy’s personal interactions with Dean Keane was more extensive than he originally believed and that they communicated about “personal issues.”91 Accordingly, Levi’s purported new information concerning Judge McElroy’s relationship with Dean Kean does not defeat collateral estoppel. Collateral estoppel likewise bars Levi’s attempts to relitigate Abelson’s alleged disclosure of confidential information, his sexual harassment of a fellow law student and his ultimate departure from Golden Gate University Law School, his alleged due process violations, and the allegedly false information provided about his IRS matter. Indeed, Levi raised most of these these matters as points of contention in his petition for California Supreme Court review. To the extent he didn’t, he had every opportunity to do so. Nevertheless, the Court still denied his petition.92 Hence, this Court should conclude that the doctrines of res judicata and collateral estoppel bar Levi from the relitigating these issues. 88 FAC, p. 11:22-27. 89 See Roos v. Red, 130 Cal.App.4th 870, 888 (2005). 90 Id. 91 FAC, p.11:10-14. 92 Supreme Court Petition, RJN, Exh. 5, pp. 16-31. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 23 of 29 17 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Levi Fails to Allege a Federal Deprivation Many of Levi’s allegations are conclusory and supported solely on “information and belief.”93 A complaint based on conclusory allegations generally does not meet the federal pleading standard because, standing alone they are a danger sign that the plaintiff is engaged in a fishing expedition.94 Levi’s complaint also alleges a plethora of improper legal arguments and conclusions. Therefore, Levi fails to set forth discrete legal claims with “enough heft” to drag the defendants past the pleading threshold.95 Second, Levi alleges that his due process rights were violated in various and sundry ways in his Second Failed Application. Specifically, he alleges that defendants State Bar, Malmquist and Lawson overlooked the exculpatory nature of Abelson’s purported disclosure of confidential State Bar information about him96 that Judge McElroy committed procedural errors by failing to disqualify Dean Kean as Raymond’s counsel97 and failing to order completion of Raymond’s deposition, and that Judge McElroy failed to fully disclose her relationship with Dean Kean.98 State court determinations are entitled to “great deference” and recognition unless (1) the state procedures failed to provide adequate notice and opportunity to be heard and (2) “the proof of facts establishing the ‘want of a fair private and professional character’ were so infirm that the court should not accept the state court’s decision; or (3) some other grave reason existed that 93 For example, the following allegations are prefaced with “Plaintiff is informed and believes” “Abelson, … disclosed confidential information pertaining to Plaintiff’s case to Sara Raymond … (FAC, p. 4:8-11); “on August 15, 2000, Abelson met with Raymond at a burrito store near GGU, and pressured and otherwise conspired with Raymond for Raymond to file a complaint against Plaintiff (FAC, p. 4:19-23); “Abelson also disclosed further information about Plaintiff from his confidential filed at the State Bar…” (FAC, p. 4:23-27); “he will not be provided with a fair hearing before the State Bar” (FAC, p. 6:22-25) etc. 94 See DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (9th Cir. 1999) 95 See Twombly, 127 S.Ct. at 1966. 96 FAC, p. 6:25-7:2. 97 FAC, p. 9:3-7. 98 Levi makes no specific allegations concerning defendant Judy Johnson and only one vague reference to defendant Debra Lawson (Complaint, p. 8:1). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 24 of 29 18 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should prevent the court from recognizing the state court’s determination.”99 Levi does not contend that his admission rejection was accomplished inconsistent with the Bar’s statutory scheme. California’s disciplinary process provides more than constitutionally sufficient procedural due process.100 The State Bar’s procedures for reviewing moral character decisions is the same as its disciplinary process and is, therefore, similarly constitutionally sufficient. Levi is not entitled to be heard in a particular forum or pursuant to a particular procedure. Indeed, he was granted his constitutionally required opportunity to be heard “at a meaningful time and in a meaningful manner”, including Supreme Court review. 101 Indeed, California’s rules provide that an unsuccessful applicant can petition the state supreme court for review of the denial of his admission satisfies the requirements for due process.102 Clearly, Levi was afforded more than adequate due process. Levi’s threadbare allegations of conflict and bias against Judge McElroy are nowhere near sufficient to justify granting the extreme remedies he requests. These allegations, even if true, would not be enough to overcome the presumption of adjudicators’ honesty and integrity.103 Levi has asserted only that he was unaware that Judge McElroy had more extensive personal interactions with Dean Kean than he previously thought and that they had “personal” conversations.104 He concedes, however, that he was aware of their prior ties.105 Nor can any credence be given to Levi’s conclusory allegations that Judge McElroy accepted an improper gift 99 In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988), quoting Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377 (1916). 100 Hirsh, 67 F.3d at 713; Rosenthal, 910 F.2d at 564-565. 101 Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) quoting Armstrong v Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). 102 Giannini, 911 F.2d at 357. 103 Hirsh, 67 F.3d at 713, quoting Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992). 104 FAC, p.11:10-13. 105 FAC, p. 9:18-24. Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 25 of 29 19 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from Dean Keane106 or allegedly altered the record to conceal her purported misconduct. These assertions fall far short of establishing that Judge McElroy was anything other than even-handed and fair. Nor does he specify how this purported conflict was so grave and prejudicial as to require that (1) the entire State Bar be disqualified from considering some hypothetical third moral character application or that (2) Judge McElroy’s decision of March 8, 2004 be voided. The rest of his alleged “due process” violations allegations are, in fact, substantively minor and do not constitute the type of grave error that would prevent this Court from recognizing the California Supreme Court’s decision rejecting Levi’s application for admission.107 4. Levi Fails to State a State Law Claim for Fraud. Levi appears to claim some kind of state common law fraud against Judge McElroy. To begin with, the Eleventh Amendment gives Judge McElroy immunity against such a claim. Her Eleventh Amendment immunity notwithstanding, Levi fails to allege sufficient information to state a claim for fraud because he fails to allege several key factual elements. Under California law, a tort for fraud entail (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.108 Any state law claim for fraud Levi attempts has the same factual and legal contagion as his meritless due process claim. Levi has made no factual allegation that would support any intent to mislead or defraud by Judge McElroy. In fact, her disclosure demonstrates Judge McElroy’s good faith. He jumps to the conclusion that this additional information is the only possible reason for his second failed moral character application, in complete abdication of any personal responsibility and steadfast refusal 106 FAC, p. 10:26-28. 107 Levi alleges that he was denied equal protection (FAC, p.2:12-13) and that defendants are biased against him because of his national origin, political and religious views (FAC, p. 7:16-19), but he makes no specific allegations to support this claim. 108 Cal. Civil. Code, § 1709; see also Goehring v. Chapman Univ., 121 Cal.App.4th 353, 17 Cal.Rptr.3d 39 (4th Dist. 2004), citing Small v. Fritz Co., Inc., 30 Cal.4th 167, 173, 132 Cal.Rptr.3d 490 (2003). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 26 of 29 20 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to acknowledge the impact of his own actions on his failed applications. Without an allegation of how this additional information caused Levi harm, Levi has no actionable fraud claim.109 5. Levi’s Request for Injunctive Relief Is Improper and Should Be Denied Levi’s requests that the Court issue two extraordinary orders: (1) an order disqualifying the State Bar from processing his moral character application and directing that another state agency accomplish this task and (2) an order nullifying Judge McElroy’s decision, filed March 18, 2004, recommending that Levi not be certified for admission. Both requests are improper, to say the least, and should be denied. Granting Levi’s first claim for injunctive relief would improperly truncate the State Bar’s role as the California Supreme Court’s administrative arm and seriously impede its ability to fulfill its statutory obligations. It would also, not surprisingly, give Levi a free pass from State Bar oversight of his admissions application. “[A]ny injunction regarding governmental functions is generally only permitted in extraordinary circumstances … as officials should be given the widest latitude possible while performing their official duties.”110 Levi has presented no well- pleaded facts to support such an ostentatious request. Levi’s allegations in his Complaint crumble under the weight of the extraordinary injunctive relief he seeks. Levi has not alleged (and cannot allege) that any one of the defendants have the authority to rearrange the three branches of government by transferring a judicial function –attorney admissions – to the executive or legislative branch. Nor are defendants aware of any authority that would allow this Court to order an arm of the California Supreme Court to recuse itself from an attorney admissions proceeding and also order a wholly unrelated California administrative agency (part of California’s executive branch) to perform the State Bar’s functions. Yet that is the relief Levi brashly seeks. As to his second claim for injunctive relief, this request for retroactive equitable relief is void under the Eleventh Amendment. Under Rooker-Feldman, this court cannot vacate Judge 109 Goehring, 121 Cal.App.4th at 364. 110 Olagues v. Russoniello, 770 F.2d 791, 799 (9th Cir. 1985) (internal quotations omitted). Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 27 of 29 21 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McElroy’s decision without vaporizing California Supreme Court’s final decision as well. Moreover, the only basis for this request is his claim that Judge McElroy did not disclose some superfluous information about mundane details of her interactions with Dean Keane. Injunctive relief is awarded only if there is a showing of inadequate remedies at law and of serious risk of irreparable harm.111 Paltry and specious allegations are wholly insufficient to form the basis of such extreme injunctive relief.112 IV. CONCLUSION For each of the foregoing reasons, State Bar defendants respectfully request that the Court grant the motion to dismiss without leave to amend. Dismissal without leave to amend is appropriate in this case as amendment is futile.113 Dated: October 4, 2007 Respectfully submitted, MARIE M. MOFFAT LAWRENCE C. YEE MARK TORRES-GIL DANIELLE LEE JAMES M. WAGSTAFFE MICHAEL VON LOEWENFELDT By: s/Mark Torres-Gil Mark Torres-Gil Attorneys for Defendants The State Bar Of California, Judy Johnson, Debra Lawson, Patrice McElroy, State Bar Court, Committee Of Bar Examiners, Allen Malmquist 111 See Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). 112 All defendants are also entitled to various immunities from damages claims, including without limitation, Eleventh Amendment immunity, absolute judicial immunity (for Judge McElroy) or quasi-judicial immunity. Because Levi does not request damages, these immunities are not briefed but are expressly reserved. 113 See Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003); Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (futility justifies denial of leave to amend); see also Miller v. Rykoff – Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1998) (amendment is futile if no set of facts can be proven under the amendment that would constitute a valid claim or defense.) Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 28 of 29 22 Memo of Ps &As in Support of Defs’ Motion to Dismiss 1st Amended Compl. 07-04378 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAIL I, Joan Sundt, hereby declare: that I am over the age of eighteen years and am not a party to the within above-entitled action, that I am employed in the City and County of San Francisco, that my business address is The State Bar of California, 180 Howard Street, San Francisco, CA 94105. On October 4, 2007, following ordinary business practice, I placed for collection for mailing at the offices of the State Bar of California, 180 Howard Street, San Francisco, California 94105, one copy of Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint fully prepaid in an envelope addressed as follows: Simon Levi 25-A Crescent Drive, #351 Pleasant Hill, CA 94523 I am readily familiar with the State Bar of California’s practice for collection and processing correspondence for mailing with the U.S. Postal Service and, in the ordinary course of business, the correspondence would be deposited with the U.S. postal mail service on the day on which it is collected at the business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California this 4th day of October, 2007. s/Joan Sundt Case 3:07-cv-04378-MHP Document 12 Filed 10/04/2007 Page 29 of 29