Case 5:18-cv-03915-NC Document 9 Filed 07/26/18 Page 1 of 11

CRAIG L. JUDSON - 114926

SHARON M. NAGLE- 179124
2 Bold, Polisner, Maddow, Nelson & Judson
A Professional Corporation
3 2125 Oak Grove Road, Suite 210
Walnut Creek, CA 94598
4 (925) 933-7777 - Telephone
(925) 933-7804 - Fax
5 Email: snagle@bpmnj.com

6 Attorneys for the Superior Court of

California, County of Santa Clara
7 and the Honorable James E. Towery
8
UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA

10 Case No. 5:18-cv-03915-NC

BEN
11 MEMORANDUM OF POINTS AND
Plaintiff,
AUTHORITIES IN SUPPORT OF
12 MOTION TO DISMISS PLAINTIFF'S
vs. COMPLAINT
13
JUDGE JAMES E. TOWERY, et al.
Date: September 12, 2018
14 Time: 1 :00 p.m.
Defendants.
Courtroom: 5
15 Hon. Nathanael Cousins

16

17 I. INTRODUCTION
18 Plaintiff brings this action against the Superior Court of California, County of Santa

19 Clara ("Superior Court") and the Honorable James E. Towery, Judge of the Superior Court

20 of California, County of Santa Clara (hereinafter collectively referred to as "the Judicial

21 Defendants"). Plaintiff alleges civil rights violations pursuant to 42 U.S.C. § 1983 but, in

22 essence, Plaintiff disagrees with rulings Judge Towery made in Plaintiffs underlying family

23 law litigation ("the State Court Litigation.")

24 As discussed in detail below, Plaintiffs entire complaint (Docket 1) must be dismissed

25 pursuant to Federal Rule of Civil Procedure Rule 12(b)(l) and Rule 12(b)(6) because this

26 Court does not have subject matter jurisdiction and the complaint does not contain facts which

27 "state a claim to relief that is plausible on its face." Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th

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Cir. 2010). "[D]ismissal may be based on either a lack of a cognizable legal theory or the

2 absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside

3 Healthcare Sys., 534 F.3d 1116, 1121 (2008).

4 This Court lacks subject matter jurisdiction because the Eleventh Amendment strips

5 federal courts of any jurisdiction over claims against states, state agents, and state

6 instrumentalities including state courts and judicial officers in the performance of their official

7 duties such as Judicial Defendants. Additionally, Plaintiffs complaint is barred by the

8 Rooker-Feldman doctrine and should be dismissed pursuant to the Younger abstention

9 doctrine. Further, Plaintiff lacks Article III standing.

10 Aside from the fatal jurisdictional defects, Plaintiffs complaint must also be

11 dismissed because it does not state a claim for relief. All possible cause of action are

12 barred by the doctrine of absolute judicial immunity, which bars any claim for damages

13 against Judge Towery and the Superior Court. Plaintiff cannot cure these defects by

14 amending his complaint and, therefore, the complaint should be dismissed against the

15 Judicial Defendants without leave to amend.

16 II. STATEMENT OF FACTS

17 This action arises out of Plaintiffs state-court family law proceedings, over which

18 Defendant the Honorable James E. Towery allegedly presided. (Docket 1, p. 2.) Plaintiff

19 alleges that Judge Towery "consistently ruled against me and violated many Rules of Court to
20 my detriment throughout the remaining proceedings." (Docket 1, p. 3.) Plaintiff states that he

21 hired an attorney, "Ms. Amini", and a therapist, Valerie Houghton, in connection with the

22 dissolution proceedings but eventually fired both. (Docket 1, p. 2-3.) After Plaintiff

23 terminated his relationship with Ms. Amini and Ms. Houghton, Plaintiff contends that Judge

24 Towery retaliated by vacating all hearings without his consent in 2014. (Docket 1, p. 3,

25 Exhibit B.) Plaintiff further contends that counsel and Judge Towery engaged in ex-parte

26 communications and that Judge Towery employed Ms. Houghton while in private practice.

27

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1 (Docket 1, pp. 3-4.) Plaintiff further contends that he asked Judge Towery to recuse himself on

2 multiple occasions, but Judge Towery refused. (Docket 1, p. 5.)

3 At some point, Plaintiff became homeless and filed a motion to lower his child support

4 obligation but the court refused to grant the motion and instead increased his obligation.

5 (Docket 1, p. 4.)
6 In January 2015, Judge Towery signed a restraining order, which ordered Plaintiff to

7 stay away from Plaintiffs ex-wife and children.1 (Docket 1, Exhibit F.) In June 2017, the

8 Court renewed the restraining order. (Docket 1, Exhibit J.) Plaintiff contends there is no basis

9 for the restraining order. (Docket 1, p. 5.)

10 III. THE DISTRICT COURT LACKS SUBJECT MATTER JURISDICTION

11 A motion to dismiss is appropriate when the district court lacks subject matter

12 jurisdiction. Fed. R. Civ. P. 12(b)(l). The party asserting subject matter jurisdiction has the

13 burden of proving that the court has jurisdiction over the claims. Robinson v. United States,

14 586 F.3d 683, 685 (9th Cir. 2009). This Court lacks subject matter jurisdiction here for at

15 least four reasons:

16 1. The Rooker-Feldman doctrine holds that a United States District Court, as a court

17 of original jurisdiction, has no authority to review final determinations of a state court in

18 judicial proceedings;
19 2. The Eleventh Amendment bars suits which seek damages or injunctive relief

20 against state courts and its judicial officers sued in their official capacities;

21 3. The Younger Abstention Doctrine bars complaints in federal court to the extent

22 the state court case in question is ongoing and involves important state interests;

23

24 I While Plaintiff does not allege specific dates for many alleged judicial acts, Plaintiffs
25 purported § 1983 claim is time-barred as to most of them. The statute of limitations for claims
under § 1983 is the same as the state law statute of limitations for personal injury actions (here,
26 2 years, pursuant to California Code of Civil Procedure section 335.1.) See West Shield
Investigations & Security Consultants v. Superior Court, 82 Cal.App.4th 935, 953 (2000).
27

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1 4. Plaintiff lacks standing to bring his claims, as there is no controversy between

2 Plaintiff and the Judicial Defendants.

3 Without jurisdiction, this Court must dismiss Plaintiffs Complaint.

4 A. Plaintiff's Complaint is Barred Under the Rooker-Feldman Doctrine

5 Plaintiffs complaint is based upon final determinations in the State Court Litigation

6 and, therefore, he cannot obtain relief here. "The United States District Court, as a court of

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

8 judicial proceedings." Worldwide Church of God v. McNair, et al., 805 F .2d 888, 890 (9th Cir.

9 1986). In other words, district courts "may not exercise appellate jurisdiction over state

10 courts[.]" Ibid. (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).)

11 This rule applies "even when the challenge to the state court decision involves federal

12 constitutional issues." McNair, supra, 805 F.2d at 891 (citing District Court of Columbia

13 Court ofAppeals v. Feldman, 460 U.S. 462, 484-86 (1983).) State courts are "as competent as

14 federal courts to decide federal constitutional issues" and "any other rule would result in a

15 waste of judicial resources and unnecessary friction between state and federal courts." McNair,

16 supra, 805 F.2d at 891 (internal citations omitted). The rule also applies to the decisions of

17 both the state's highest court as well as the state's lower courts. Id. at 893, n.3.

18 To the extent Plaintiff asserts constitutional claims, such constitutional claims are

19 "inextricably intertwined" with the state court's decision, such that the district court does not

20 have jurisdiction. McNair, supra, at 891-92; Feldman, supra, 460 U.S. at 482 ("[i]fthe

21 constitutional claims presented to a United States district court are inextricably intertwined

22 with the state court's denial in a judicial proceeding ... then the district court is in essence

23 being called upon to review the state court decision."). In other words, "the district court does

24 not have jurisdiction if it cannot evaluate the constitutional claims without conducting a review

25 of the state court's legal determinations in a particular case." Le/court v. Superior Court, 63

26 F.Supp.2d 1095, 1098 (N.D. Cal. 1999).

27

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The Rooker-Feldman doctrine strictly forbids this Court from reviewing or altering

2 state court decisions. Plaintiffs complaint is plainly based upon allegations that Judge Towery

3 erred in his rulings, as Plaintiff contends that Judge Towery "consistently ruled against me ... "

4 (Complaint p. 3.) To evaluate Plaintiffs constitutional claims, this Court would need to

5 review Judge Towery's rulings related to the domestic violence restraining orders, the

6 contempt order, and support orders, as well as Judge Towery's alleged refusal to recuse

7 himself. (Complaint pp. 3, 4, 6, Exhibit F.)2 All of Plaintiffs claims relate to prior rulings by

8 Judge Towery and, therefore, this Court lacks subject matter jurisdiction pursuant to Rooker-

9 Feldman. Thus, the motion to dismiss must be granted.

10 B. The Eleventh Amendment Bars Plaintiff's Complaint

11 The Eleventh Amendment to the United States Constitution states "[t]he judicial

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

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

14 by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI.

15 "The Eleventh Amendment bars suits which seek either damages or injunctive relief

16 against a state, an 'arm of the state,' its instrumentalities, or its agencies." Franceschi v.

17 Schwartz, 57 F.3d 828, 831 (9th Cir. 1995), citing Durning v. Citibank, NA,. 950 F.2d 1419,

18 1422-23 (9th Cir. 1991). In other words, the Eleventh Amendment grants sovereign

19 immunity to states against suits filed in federal court. See Regents of the University of

20 California, et al. v. Doe, 519 U.S. 425, 429 (1997).

21 State courts are state entities for purposes of Eleventh Amendment immunity. Greater

22 Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (1987) ("state case law

23 and constitutional provisions make clear that the Court is a State agency.") Thus, Plaintiffs

24 complaint against the Superior Court is barred by the Eleventh Amendment.

25

26
2
Even assuming Plaintiff had alleged that he timely and properly challenged Judge Towery,
27 his remedy if dissatisfied with the ruling was a writ, not a lawsuit for damages against Judge
Towery. See e.g., Cal. Civ. Proc. Code§ l 70.3(d).
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1 Further, "[t]he Eleventh Amendment bars a suit against state officials when 'the state

2 is the real, substantial party in interest."' Pennhurst State School & Hosp. v. Halderman, 465

3 U.S. 89, 101 (1984) (internal citations omitted). Consequently, the Eleventh Amendment

4 precludes a district court from asserting jurisdiction over claims against state officials sued

5 in their official capacities. Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988).

6 Here, Plaintiff alleges that Judge Towery "is a judge with the Superior Court of

7 California, Santa Clara County." (Complaint p. 2.) Therefore, Judge Towery is a state

8 official for purposes of the Eleventh Amendment. Plaintiffs allegations relate solely to

9 Judge Towery acting within his official duties as a judge and within the context of the State

10 Court Litigation. Thus, Plaintiffs claims against the Judicial Defendants are barred by the

11 Eleventh Amendment and the complaint must be dismissed.

12 c. Plaintiff's Complaint Should Be Dismissed Based Upon the Younger

Abstention Doctrine
13

14 It is the general rule that federal courts must abstain from granting injunctive or

15 declaratory relief that would interfere with pending state judicial proceedings. Younger v.

16 Harris 401 U.S. 37, 40-41, n.2 (1971). Absent extraordinary circumstances, abstention in

17 favor of state court proceedings is required if the state court proceedings: ( 1) are ongoing,

18 (2) implicate important state interests, and (3) provide the plaintiff an adequate

19 opportunity to litigate federal claims. Hirsh v. Justices of the Supreme Court of the State of

20 California 67 F.3d 708, 712 (9th Cir. 1995). This is known as the Younger abstention

21 doctrine.

22 When the Younger abstention doctrine applies, the complaint must be dismissed.

23 Gibson v. Berryhill 411 U.S. 564, 577 ( 1973). Abstention is appropriate where a party seeks to

24 invoke federal jurisdiction for the purpose of restraining state proceedings or invalidating a

25 state law. See United States v. Adair 723 F .2d 1394, 1402 n.5 (9th Cir. 1983 ).

26 Here, to the extent the state-court support judgment is a continuing obligation,

27 Plaintiffs family law matter may be considered pending. See In re Marriage ofArmato, 88

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1 Cal. App. 4th 1030, 1040 (2001) ("a dissolution action remains pending for purposes of child

2 support."). Further, the enforcement of state-mandated support obligations implicates an

3 important state interest. See In re Marriage of Fellows, 39 Cal.4th 179, 190 (2006) ("the

4 state's interests in protecting California's children and enforcing support obligations are

5 compelling"); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (federal courts traditionally

6 abstain from hearing cases involving domestic issues.):' Therefore, Plaintiffs complaint for

7 damages, injunctive and declaratory relief in this Court should be dismissed pursuant to the

8 Younger abstention doctrine.

9 D. Plaintiff Lacks Article III Standing

10 Article III standing is mandatory and not subject to waiver. US. v. Hays, 515 U.S. 737,

11 742 (1995). Article III standing requires: 1.) an actual or imminent injury in fact that is

12 concrete and particularized; 2.) a causal connection between the injury and the conduct

13 complained of; and 3.) redressability such that it is likely (as opposed to merely speculative)

14 that the injury will be redressed by a favorable decision. Hays, supra, at 742-43. A party who

15 cannot meet the requirements of Article III standing may not litigate in federal court. Valley

16 Forge Christian College v. Americans United/or Separation of Church & State, Inc., 454

17 U.S. 464, 475-476, (1982). As stated in O'Shea v. Littleton, 414 U.S. 488, 493-494 (1974)

18 (internal citations omitted):

19 Plaintiffs in the federal courts 'must allege some threatened or

actual injury resulting from the putatively illegal action before a
20 federal court may assume jurisdiction.' ... Abstract injury is not
enough. It must be alleged that the plaintiff 'has sustained or is
21
immediately in danger of sustaining some direct injury' as the result
22 of the challenged statute or official conduct. ... The injury or threat
of injury must be both 'real and immediate,' not 'conjectural' or
23 'hypothetical.'
In the present action, there is no direct, "real and immediate" injury that Plaintiff seeks
24
to redress. There is no legal controversy between the Judicial Defendants and Plaintiff.
25

26

27 3 For this same reason, this Court does not have jurisdiction to grant Plaintiffs request to have
the State Litigation transferred to this Court. See Cal. Fam. Code § 2010.
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1 Plaintiff simply wants this Court to declare, in general, that Judge Towery made improper

2 rulings in the State Court Litigation.

3 The Ninth Circuit has affirmatively stated, "Article III prevents federal courts from

4 adjudicating claims when the parties lack the required adverse legal interests. Suits against

5 state judges who are adjudicating cases pursuant to state law raise serious questions about the

6 existence of a justiciable controversy between the parties." Grant v. Johnson, 15 F .3d 146,

7 147 (9th Cir. 1994) (emphasis added). This is precisely the situation here, as Judge Towery's

8 involvement in this matter arises solely from his role presiding over the State Court Litigation.

9 There is no justiciable controversy between the Judicial Defendants and Plaintiff and, as a

10 result, Plaintiff lacks standing.

11 IV. PLAINTIFF'S COMPLAINT MUST BE DISMISSED FOR FAILURE TO

STATE A CLAIM BECAUSE JUDICIAL IMMUNITY BARS PLAINTIFF'S
12 COMPLAINT
13 Even if this Court had jurisdiction to hear Plaintiffs complaint, it must be

14 dismissed because Plaintiff fails to state a claim for relief. A complaint can survive a Rule

15 12(b)(6) motion to dismiss only if it contains "sufficient factual matter. .. to 'state a claim

16 to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

17 Bell v. Twombly, 550 U.S. 544, 570 (2007)). Any possible cause of action by Plaintiff

18 against the Judicial Defendants relating to the State Court Litigation is barred by the

19 doctrine of judicial immunity.

20 Judicial officers, such as Judge Towery, are entitled to absolute judicial immunity.

21 The U.S. Supreme Court established the rule that judges are immune from civil suits

22 arising out of the exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9, 11

23 (1991 ). Therefore, the complaint must be dismissed pursuant to Rule l 2(b )( 6).

24 "[I]t is a general principle of the highest importance to the proper administration of

25 justice that a judicial officer, in exercising the authority vested in him, shall be free to act

26 upon his own convictions, without apprehension of personal consequences to himself."

27 Bradley v. Fisher, 80 U.S. 335, 347 (1871).

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The Court in Stump v. Sparkman, 435 U.S. 349, 362 (1978) stated that:

2 [T]he factors determining whether an act by a judge is a

"judicial" one relate to the nature of the act itself, i.e., whether it
3 is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the
4
judge in his judicial capacity.
5
6 "A judge loses absolute immunity only when he acts in the clear absence of all

7 jurisdiction or performs an act that is not judicial in nature." Shucker v. Rockwood, 846

8 F .2d 1202, 1204 (9th Cir. 1988). Even the determination of whether a court has

9 jurisdiction in the first instance is a judicial act for immunity purposes:" ... error in such

10 determination is itself within the rule of immunity. In general, if any reasonable ground for

11 the assumption of jurisdiction is shown, the immunity applies." Taliaferro v. County of

12 Contra Costa, 182 Cal.App.2d 587, 593 (1960).

13 Here, Plaintiffs allegations relate solely to Plaintiffs State Court Litigation.

14 Plaintiff encountered Judge Towery only in his official capacity as a judicial officer, within

15 a courtroom while presiding over the State Court Litigation. Because Judge Towery's

16 judicial acts are protected by absolute judicial immunity, Plaintiffs claims are barred as a

17 matter of law and Plaintiffcannot state a cause of action against him.

18 The Superior Court is entitled to the same immunity as an individual judge. A public

19 entity is not liable for an injury resulting from an act or omission by an employee of the

20 public entity where the employee is immune from liability. Cal. Gov. Code,§ 815.2(b).

21 Consequently, the Superior Court can only be liable to the extent that Judge Towery is

22 liable. Because Judge Towery enjoys absolute judicial immunity, that immunity extends

23 to the Superior Court. Accordingly, the motion to dismiss must be granted without leave to

24 amend.

25 v. CONCLUSION

26 This Court does not have subject matter jurisdiction to hear the claims in Plaintiffs

27 Complaint. In addition, both the Superior Court and Judge Towery enjoy absolute judicial

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immunity. Plaintiff cannot remedy these errors by amendment. Because this Court lacks

2 subject matter jurisdiction and Plaintiff has failed to state a claim upon which relief can be

3 granted, the Complaint against Judicial Defendants should be dismissed without leave to

4 amend.

6 DATE: July 26, 2018 BOLD, POLISNER, MADDOW, NELSON & JUDSON

8 By: Isl Sharon M. Nagle

SHARON M. NAGLE
9 Attorneys for Judicial Defendants

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PROOF OF SERVICE
USDC-Northern District of CA Case No: 5:18-cv-03915-NC
2
I am a citizen of the United States, over the age of 18 years, employed in the County of
3
4 Contra Costa, and not a party to the within action; my business address is 2125 Oak Grove

5 Road, Suite 210, Walnut Creek, CA 94598.

6 On July 26, 2018, I served:

7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
8 DISMISS PLAINTIFF'S COMPLAINT

9 upon the following at the address( es) stated below via:

10 __'1_ By UNITED ST ATES MAIL, I enclosed the documents in a sealed envelope or

package addressed to the persons at the addresses listed above and placing the envelope for
11 collection and mailing, following our ordinary business practices. I am readily familiar with
this business's practice for collecting the processing correspondence for mailing. On the same
12
day that correspondence is placed for collection and mailing, it is deposited in the ordinary
13 course of business with the United States Postal Service, in a sealed envelope with postage
fully prepaid.
14
BY ELECTRONIC TRANSMISSION I transmitted a PDF version of this document
15 by electronic mail to the party(s) identified above.
16

17

18

19 I declare under penalty of perjury under the laws of the United States of America that
20 the foregoing is true and correct, and that this declaration was executed on July 26, 2018, at
21 Walnut Creek, California.
22

23
�ill�
Shannon Wurth
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