Case 5:18-cv-03915-NC Document 13 Filed 08/14/18 Page 1 of 7

1 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 




ZIMMERMAN,
 
11 REPLY BRIEF RE: MOTION TO
Plaintiff, DISMISS PLAINTIFF'S COMPLAINT
12
vs. Date: September 12, 2018
13 Time: 1 :00 p.m.
JUDGE JAMES E. TOWERY, et al. Courtroom: 5
14 Hon. Nathanael Cousins
Defendants.
15

16

17

18

19 I. INTRODUCTION

20 Plaintiff fails to provide any jurisdictional basis for his complaint, or to refute the

21 application of absolute judicial immunity to defeat the Motion to Dismiss of the Superior

22 Court of California, County of Santa Clara ("Superior Court") and the Honorable James E.

23 Towery, Judge of the Superior Court of California, County of Santa Clara (hereinafter

24 collectively referred to as "the Judicial Defendants"). Accordingly, the Judicial Defendants'

25 Motion to Dismiss must be granted.

26 The Eleventh Amendment of the United States Constitution bars suits for damages

27 brought against state entities, such as the Superior Court, and state officials, such as Judge

28 Towery, in federal court. Further, to rule on Plaintiffs allegations, this Court would need to
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REPLY BRIEF RE: MOTION TO DISMISS PLAINTIFF'S COMPLAINT
 Case 5:18-cv-03915-NC Document 13 Filed 08/14/18 Page 2 of 7

1 re-evaluate Judge Towery's decisions in an underlying state court action, which is prohibited

2 by the Rooker-Feldman doctrine. Lastly, the Younger abstention doctrine bars Plaintiffs

3 complaint, as Plaintiffs family law matter remains pending in the state court. For these

4 reasons, this Court lacks subject matter jurisdiction.

5 Even if Plaintiff could establish subject matter jurisdiction, any cause of action

6 against the Judicial Defendants is barred by the doctrine of absolute judicial immunity.

7 Because Plaintiff cannot cure these defects by amending his complaint, the Judicial

8 Defendants' Motion to Dismiss Plaintiffs complaint must be granted without leave to

9 amend.

10 II. 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). Once a party moves to dismiss for lack of subject matter

13 jurisdiction, the opposing party bears the burden of establishing the court's jurisdiction.

14 Chandler v. State Farm Mutual Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Plaintiff

15 fails to establish subject matter jurisdiction here.

16 A. The 11th Amendment Bars Plaintiff's Complaint

17 Plaintiff claims that the Eleventh Amendment does not bar his complaint, citing Ex

18 Parte Young, 209 U.S. 123 (1908.) Plaintiffs reliance upon Ex Parte Young is misplaced, as

19 that case stands for the proposition that the Eleventh Amendment does not bar suit against a

20 state official when the plaintiff is requesting prospective injunctive relief. Committee to

21 Protect Our Agricultural Water v. Occidental Oil and Gas, 235 F. Supp.3d 1132, 1160-1161.

22 Ex Parte Young applies when "the complaint alleges an ongoing violation of federal law and

23 seeks relief properly characterized as prospective." Id. citing Verizon Maryland, Inc. v. Public

24 Service Com 'n. of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

25 Here, Plaintiff is not seeking prospective injunctive relief and admits, in his Opposition, that he

26 has suffered monetary damages of at least $600,000, and that he does not seek to "restrain any

27 state proceeding or invalidate any state law." (Opposition p. 3, 5.)

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1 Further, while Plaintiffs complaint is unclear, several elements of Plaintiffs complaint

2 confirm that he seeks only damages, not injunctive relief. First, Plaintiff demands a jury trial

3 (Docket 1.) A jury is not available when a plaintiff seeks an injunction. Hernandez v. County

4 of Monterey, 306 F.R.D. 279, 292-293 (2015.) Second, he alleges a cause of action under 42

5 U.S.C. § 1983, which typically concerns compensatory damages only. See, Carey v. Piphus,

6 435 U.S. 247, 255, 98 S.Ct. 1042, 1047 (1978) (The basic purpose of Section 1983 is to

7 compensate plaintiffs for constitutional rights violations.)

8 While Plaintiff requests that this Court transfer his family-law matter to federal court,

9 moreover, this request cannot properly be considered injunctive relief because Plaintiff states

10 that Judge Towery no longer presides over his family law action. (Opposition p. 6.) Plaintiffs

11 allegations solely relate to Judge Towery's purported past, and not continuing, conduct. "Past

12 exposure to illegal conduct does not in itself show a present case or controversy regarding

13 injunctive relief ... if unaccompanied by any continuing, present adverse effects." 0 'Shea v.

14 Littleton, 414 U.S. 488, 495-496, 94 S.Ct. 669 (1974.) Therefore, Plaintiff cannot demonstrate

15 the present controversy requirement for injunctive relief. Moreover, federal courts do not have

16 jurisdiction over family law claims based upon state law. Coats v. Woods, 819 F.2d 236, 237

17 (9th Cir. 1987) (Federal courts traditionally abstain from hearing cases involving domestic

18 issues.)

19 Lastly, Plaintiff fails to refute moving party's assertion that his claims against the

20 Superior Court are barred by the Eleventh Amendment. Nor can he, as courts have firmly

21 established that that state courts are state entities for purposes of Eleventh Amendment

22 immunity. See, Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110

23 (1987.)

24 B. The Rooker-Feldman Doctrine Bars Plaintiff's Complaint

25 Plaintiff asserts that the Rooker-Feldman doctrine does not bar his complaint because

26 he does not request that this Court alter a judgment or order of the state court. (Opposition p.

27 3.) Plaintiff misconstrues both the relief he seeks and the nature of the Rooker-Feldman

28 doctrine.
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1 Plaintiffs allegations stem from his belief that Judge Towery erred in making rulings in

2 Plaintiffs family law matter. For example, Plaintiff alleges:

3 • "Judge Towery consistently ruled against me and violated many Rules of Court

4 to my detriment." (Docket 1 p. 3.)

5 • "Judge Towery vacated all ofmy hearings without my consent." (Docket 1, p.

6 3.)

7 • Judge Towery had no basis to increase Plaintiffs support obligations. (Docket

8 1, p.4.)

9 • Judge Towery had insufficient evidence to issue a restraining order. (Docket 1,

10 p.5.)

11 These actions do not exist in a vacuum, but as part of the state-court litigation in

12 Plaintiffs family law matter. In order for this Court to determine that Judge Towery deprived

13 Plaintiff of due process, this Court would necessarily need to review Judge Towery's actions

14 and determine his rulings were made erroneously. The Court is not permitted to take such

15 action.

16 As noted by the court in Le/court v. Superior Court, "the district court does not have

17 jurisdiction if it cannot evaluate the constitutional claims without conducting a review of the state

18 court's legal determinations in a particular case." Le/court v. Superior Court, 63 F .Supp.2d 1095,

19 1098 (N.D. Cal. 1999). Therefore, this Court is barred from asserting jurisdiction over Plaintiffs

20 complaint based upon the Rooker-Feldman doctrine and the complaint must be dismissed.

21

22

23

24

25

26 III

27 III

28 III
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1 c. Plaintiff's Complaint Should Be Dismissed Based Upon the Younger

Abstention Doctrine
2
The Younger' abstention doctrine is based upon "a strong federal policy against federal-
3
court interference with pending state judicial proceedings absent extraordinary circumstances."
4
Middlesex Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 431 (1982).
5
Here, Plaintiff contends that Younger does not apply because Commissioner
6
Saldivar, not Judge Towery, presides over Plaintiffs ongoing child support obligations in
7
the Superior Court. (Opposition p. 6.) Whether nor not Judge Towery continues to
8
preside over Plaintiffs family law case is irrelevant to the pending nature of the state court
9
action. The fact remains that Plaintiffs family law matter remains pending in state court.
10
See In re Marriage ofArmato, 88 Cal. App. 4th 1030, 1040 (2001) ("a dissolution action
11
remains pending for purposes of child support.") Based upon the Younger abstention
12
doctrine, Plaintiffs complaint should be dismissed.
13
III. ABSOLUTE JUDICIAL IMMUNITY BARS PLAINTIFF'S COMPLAINT
14
Plaintiff contends that Judge Towery does not enjoy absolute judicial immunity
15
because "the relief requested is injunctive and my constitutional rights [Due Process] were
16
violated." (Opposition p. 6.) As set forth in more detail above, Plaintiff admits in his
17
Opposition that he is asserting a claim for damages. Moreover, a review of Plaintiffs
18
complaint reveals that he seeks damages, not injunctive relief.
19
Judicial immunity is not just immunity from damages, but immunity from suit.
20
Mireles v. Waco, 502 U.S. 9, 11 (1991). The United States Supreme Court has established
21
a very broad scope for judicial immunity:
22
This immunity applies even when the judge is accused of acting maliciously
23 and corruptly, and it 'is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public whose interest it is that the
24 judges should be at liberty to exercise their functions with independence
and without fears of consequences.'
25

26

27
I
Younger v. Harris, 401 U.S. 37, 43-44 (1971).
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1 Pierson v. Ray, 386 U.S. 547, 554 (1967) (citations omitted). As explained by the court

2 in Duvall v. County of Kitsap, 260 F .3d 1124, 1144 (9th Cir. 2001 ):

3 As the Supreme Court has observed, [m]ostjudicial mistakes or wrongs are

open to correction through ordinary mechanisms of review, which are
4 largely free of the harmful side-effects inevitably associated with exposing
judges to personal liability.
5
In the present case, Plaintiff seeks damages based upon Judge Towery's actions
6
while presiding over Plaintiffs family law proceeding. The events described in Plaintiffs
7
complaint are precisely the type of judicial acts protected by the doctrine of judicial
8
immunity. If Plaintiff believed that Judge Towery acted improperly, Plaintiffs remedy was
9
within the underlying case or a writ or appeal, not to sue Judge Towery for civil damages.
10
Because Plaintiffs complaint arises from actions taken by Judge Towery in his judicial
11
capacity, Judge Towery is entitled to absolute judicial immunity, Plaintiffs claims against
12
him are barred as a matter of law,and the motion to dismiss must be granted.
13
IV. CONCLUSION
14
This Court does not have subject matter jurisdiction to hear the claims in Plaintiffs
15
complaint. In addition, Judge Towery enjoys absolute judicial immunity. Because this Court
16
lacks subject matter jurisdiction and Plaintiff has failed to state a claim upon which relief can
17
be granted, the complaint against the Judicial Defendants must be dismissed without leave to
18
amend.
19

20
DATE: August 4, 2018 BOLD, POLISNER, MADDOW, NELSON & JUDSON
21

22
By: /s/ Sharon M. Nagle
23 SHARON M. NAGLE
Attorneys for Judicial Defendants
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25

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1 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 August 14, 2018, I served:

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REPLY BRIEF RE: MOTION TO DISMISS PLAINTIFF'S COMPLAINT
8
upon the following at the address( es) stated below via:
9
--�- By UNITED ST A TES MAIL, I enclosed the documents in a sealed envelope or
10 package addressed to the persons at the addresses listed above and placing the envelope for
collection and mailing, following our ordinary business practices. I am readily familiar with
11 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
course of business with the United States Postal Service, in a sealed envelope with postage
13 fully prepaid.

14 BY ELECTRONIC TRANSMISSION I transmitted a PDF version of this document

by electronic mail to the party(s) identified above.
15

16 Ben Zimmerman
501 West Glenoaks Blvd., #604
17 Glendale, CA 91202

18
I declare under penalty of perjury under the laws of the United States of America that
19
the foregoing is true and correct, and that this declaration was executed on August 14, 2018, at
20
Walnut Creek, California.
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REPLY BRIEF RE: MOTION TO DISMISS PLAINTIFF'S COMPLAINT