“We have repeatedly held that a privately-retained attorney does not 4 act under color of state law for purposes of actions brought under the Civil Rights Act.”
How later courts described this case
- “We have repeatedly held that a privately-retained attorney does not 4 act under color of state law for purposes of actions brought under the Civil Rights Act.”
- distinguishing federal 23 challenges to state statutes or rules and reiterating that Rooker-Feldman “prohibits federal 24 courts from adjudicating cases brought by state-court losing parties challenging state-court 25 judgments.”
- explaining that “a plaintiff must show that the conduct 19 allegedly causing the deprivation of a federal right be fairly attributable to the State.”
- “[C]onclusory allegations that [a Judge] conspired with [attorneys] are 8 insufficient to support [a] section 1983 claim.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ELEANOR BALLESTER, Case Nos.: 3:23-cv-1730-RBM-VET;
3:23-cv-01839-RBM-VET
12 Plaintiff,
13 v. ORDER DISMISSING CASES
WITHOUT LEAVE TO AMEND
14 LEAH BOUCEK, et al,
15 Defendants.
[Case No. 3:23-cv-1730-RBM-VET
16
Docs. 3, 17, 18, 19, 21, 22, 26, 34, 36,
17
41, 42, 43, 45, 48, 49, 50, 51, 54]
18
[Case No. 3:23-cv-1839-RBM-VET
19
Docs. 3, 4, 14, 17, 22, 23, 24, 27–28]
20
21
22 On September 19, 2023, Plaintiff Eleanor Ballester, proceeding pro se,1 filed a
23 Complaint in Case No. 3:23-cv-01730-RBM-VET (hereinafter, “1730 Complaint”) under
24 28 U.S.C. § 1983 alleging a violation of her rights under the Fourteenth Amendment.
25
26
27
1 The Court notes that while Plaintiff is proceeding pro se, she is not proceeding in forma
28
1 (1730 Case-Doc. 1. ) This action names twelve Defendants that each allegedly have some
2 association with Plaintiff’s state court family law case, San Diego County Superior Court
3 Case 21FL009971C (hereinafter, the (“family law case”) wherein Plaintiff seeks to void a
4 Domestic Violence Restraining Order (“DVRO”) issued against her.3 (1730 Compl. at 1–
5 6, 100–105, 112-113.4)
6 On October 5, 2023, Plaintiff filed another § 1983 Complaint in Case No. 3:23-cv-
7 1839-RBM-VET (1839 Case-Doc. 1) with an application to set aside a state judgment
8 (1839 Case-Doc. 3). Plaintiff’s allegations in the 1839 Complaint are based on the same
9 family law case (1839 Compl. at 12, 14, 29, 50–51, 61), name six of the same Defendants
10 as in the 1730 Complaint (1839 Complaint at 4–5) and also seeks to enjoin the DVRO as
11 an allegedly “illegal restraining order” (id. at 57). Additionally, Plaintiff’s application to
12 set aside a state judgment, filed in conjunction with the 1839 Complaint, seeks to void the
13 same DVRO Plaintiff seeks to enjoin in the 1730 Complaint. (1839 Case-Doc. 3.)
14 Because these cases are based on Plaintiff’s challenge to the same family law case
15 in state court, name six of the same Defendants, and the same state court DVRO, the Court
16 addresses the pending motions in both cases in one order. Between the two cases, there
17 are more than twenty motions and five separately filed requests for judicial notice before
18 the Court.5 (1730 Case-Docs. 3, 17–19, 21–22, 26, 34, 41–42, 48, 49, 50, 51, 54 (motions);
19
20
21 2 When citing documents filed in either case, the Court will include “1730 Case” or “1839
Case” before citing the specific document number. Similarly, when referring to the two
22
complaints, the Court refers to them as either the “1730 Complaint” or the “1839
23 Complaint” or collectively “the Complaints.”
3 This is the first of five civil cases brought under § 1983 that Plaintiff has filed in this
24
Court that are associated with the same family law case. (See also Case Nos. 3:23-cv-
25 1839-RBM-VET, 3:23-cv-1854-RBM-VET, 3:24-cv-0454-RBM-VET, 3:24-cv-2244-
RBM-VET). This Order addresses pending motions filed in two of the cases. The Court
26
notes that Plaintiff also unsuccessfully attempted to remove the family law case to federal
27 court multiple times.
4 The Court cites the CM/ECF electronic pagination unless otherwise noted.
28
1 1730 Case-Docs. 36, 43, 45 (requests for judicial notice); 1839 Case-Docs. 3, 4, 14, 17,
2 22–24 (motions); 1839 Case-Docs. 27–28 (requests for judicial notice).) As detailed
3 below, Defendants’ motions to dismiss in the 1730 Case seek to dismiss the 1730
4 Complaint and to strike Plaintiff’s filing titled “2nd Amended Complaint” (1730 Case-
5 Doc. 47) (“2nd Amended Complaint”). (1730 Case-Docs. 17, 18, 19, 21–22, 34 41–42
6 (motions to dismiss); 1730 Case-Docs. 48, 49, 50, 51, 54 (motions to strike 2nd Amended
7 Complaint).) Similarly, the Defendants move to dismiss the 1839 Complaint. (1839 Case-
8 Docs. 14, 17, 22–24.) Plaintiff has not filed any response or opposition to any of the
9 motions or requests for judicial notice in either case.
10 For the reasons set forth below, the motions seeking to strike the 2nd Amended
11 Complaint in the 1730 Case are GRANTED. The motions to dismiss in the 1730 Case and
12 1839 Case are GRANTED as set forth below and both cases are DISMISSED WITHOUT
13 LEAVE TO AMEND.
14 I. BACKGROUND
15 A. Complaints
16 The Court briefly summarizes the allegations of the 1730 and 1839 Complaints. The
17 Court has considered the entirety of both Complaints but has not included every allegation
18 in this summary. Both Complaints contain many paragraphs of allegations that are
19 repeated as to numerous Defendants without any factual distinctions between them. Those
20 repeated paragraphs also tend to be legal conclusions. The Court’s summary of the
21 allegations attempts to identify the factual basis for Plaintiff’s claims sufficiently to fully
22 address the pending motions in these cases.6
23
24
25 6 The Court notes that the 1730 Complaint has two attachments: (1) “Affidavit (Petitioner);
Notice of Liability Regarding Trespass, Fee Schedule and Remedy” and (2) “Affidavit of
26
Truth Natural Person.” However, neither appears to contain any allegations related to the
27 case. The first appears to be a list of financial charges to be assessed for general actions
taken or harm suffered as a result of government activities. (1730 Case-Doc. 1-2.) The
28
1 1. 1730 Complaint
2 The overall claim presented in the 1730 Complaint is that the DVRO issued by
3 Defendant Commissioner Boucek on June 21, 2023 was invalid and illegal because
4 Defendant Commissioner Boucek should have been disqualified from issuing the DVRO
5 based on her personal connections. (1730 Compl. at 8–18, 100–102, 104–105.) Plaintiff
6 asks the Court to void the June 21, 2023 DVRO and stop Defendant Commissioner Boucek
7 from taking any further action in the family law case. (Id. at 112–13.)
8 Plaintiff alleges Defendant Commissioner Leah Boucek “violated Plaintiff’s
9 Constitutional Right to Liberty of locomotion … [under] the 14th Amendment” because
10 she did not disqualify herself from hearing Plaintiff’s family law case. (Id. at 10.) More
11 specifically, Plaintiff claims Defendant Commissioner Boucek issued “a False
12 PERMANENT Restraining Order against Plaintiff, Restraining [Plaintiff] from her
13 children without any evidence of any harm to [Plaintiff’s] children, or to Defendant
14 [Samuel] Martinette . . . .” (Id. at 15.)
15 Plaintiff asserts numerous reasons for Defendant Commissioner Boucek’s
16 disqualification, including: she lived “five houses away from Defendant Samuel
17 Martinette”7 (id. at 13, 101); had personal connections to Defendant Martinette through
18 Commissioner Boucek’s spouse (id. at 13–14); and discussed the family law case with a
19 neighbor and a kindergarten teacher (id. at 14).
20 Plaintiff asserts that Defendant Commissioner Boucek’s issuance of the DVRO
21 against Plaintiff when Defendant Commissioner Boucek should have been disqualified
22 denied Plaintiff her “right to have her case heard by an unbiased Governor Appointed
23 Judge, which is a Fundamental Right of liberty guaranteed by the 14th Amendment.” (Id.
24
25
in government programs does not alter her status as “a natural, freeborn Sovereign … [not]
26
subject to any entity anywhere.” (1730 Case-Doc. 1-3.) Additionally, as noted above, in
27 conjunction with the filing of the 1839 Complaint, Plaintiff filed an application seeking to
set aside the DVRO. (1839 Case-Doc. 3.)
28
1 at 16.) Plaintiff alleges this caused her to be “forced to set hearings, file documents,
2 research law, serve court documents, attend court hearings, pay filing fees, make copies,
3 and set up court calls” and suffer “a loss of time, breakdown of family relationships, loss
4 of reputation, injury, bodily pain, mental suffering, humiliation, distress, anguish,
5 humiliation of mind, shame, public ridicule, loss of time, loss of earnings, loss of sleep,
6 interruptions in occupation, injury to reputation, and great physical inconvenience and
7 discomfort, loss of motherhood, and a breakdown in the relationship with her children.”
8 (Id. at 17.8)
9 Plaintiff asserts that Defendant Commissioner Boucek harmed Plaintiff by issuing
10 an “invalid” and “illegal” restraining order that was invalid and illegal because Defendant
11 Commissioner Boucek did not disclose her personal connections to Plaintiff’s ex-husband
12 and those connections should have resulted in her disqualification prior to issuing the
13 DVRO. (Id. at 100–05.) Plaintiff alleges the restraining order should be void because
14 Defendant Commissioner Boucek should have been “disqualified from serving as a court-
15 appointed judge in [the family law case].” (Id. at 104.)
16 Plaintiff claims that “Defendant Judge Michael T. Smyth had actual knowledge of
17 subordinate’s violation of Plaintiff’s Fundamental rights, … acquiesced in that violation
18 through his silent acceptance, … was the supervisor over the subordinate [Defendant
19 Commissioner Boucek] [and] had a duty to control the court process, and to oversee and
20 to make sure [Defendant Commissioner Boucek’s] court orders are in accordance with
21 law.” (Id. at 25–26.)
22 As to other named Defendants, Plaintiff’s claims are based on allegations they:
23 should have intervened to stop Defendant Commissioner Boucek from issuing the DVRO
24 against Plaintiff when she should have been disqualified (see e.g., id. at 33–35); caused
25
26
27 8 These same allegations regarding the costs of legal proceedings, humiliation, and injury
to relationships and reputation are repeated verbatim throughout the Complaint as to each
28
1 Defendant Commissioner Boucek “to act beyond her authority” (see e.g. id., at 44–45);
2 “refus[ed] to file a Statement of Disqualification against [Defendant Commissioner
3 Boucek]” (id. at 63); “set in motion a series of actions of [Defendant Commissioner
4 Boucek] … which caused Plaintiff injuries” (see e.g., id. at 37–38); or conspired with
5 Defendant Commissioner Boucek to issue the DVRO (see e.g., id. at 29).9
6 The factual allegations as to the other Defendants only state their connection to the
7 family law case. As examples, Plaintiff alleges which Defendants represented certain
8 parties in the family law case. (Id. at 29 (Defendant Yip “represented Defendant Samuel
9 Martinette in [the family law case]”); Id. at 54 (Defendant Sachdev “is the attorney for the
10 minor children.”); Id. at 71 (Defendant Willmore “add[ed] additional litigation of a civil
11 lawsuit”).) Plaintiff also alleges other Defendants falsely testified in the family law case
12 and this “cause[d] an invalid restraining order to be issued against Plaintiff.” (Id. at 46, 75,
13 79, 84, 88, 91–92.)
14 Plaintiff seeks an order “[f]or a withdrawal and voiding of the [r]estraining [o]rder
15 issued on June 21, 2023, and a [v]oid of any and all court orders, and findings of fact made
16 by [Defendant Commissioner Boucek]” and “[f]or a preliminary injunction ordering …
17 Defendants to cease from taking any further action … in the family law case.” (Id. at 112–
18 13.) Plaintiff also seeks $10,000,000 in compensatory damages as to each Defendant and
19 $30,000,000 in punitive damages as to each Defendant. (Id. at 113.)
20 2. 1839 Complaint
21 Plaintiff’s 1839 Complaint is also based on the underlying allegation that Defendant
22 Commissioner Boucek should have been disqualified from Plaintiff’s family law case and
23 that other named Defendants had a duty to raise her disqualification. (1839 Compl. at 14–
24 16, 42.) The primary variation in the factual allegations of the 1839 Complaint is the
25
26
27 9 These same allegations are repeated throughout the Complaint as to each Defendant,
however, given their repetition without any additional factual basis, the Court declines to
28
1 assertion that each Defendant participated in, failed to intervene to stop, or was a witness
2 to a September 21, 2023 ex parte hearing. (See id. at 4, 14–16, 218 (general allegations
3 regarding ex parte hearing); Id. at 30, 33 (Yip); Id. at 41–42 (Sachdev); Id. at 47
4 (Heinrich).) Plaintiff alleges Defendant Commissioner Boucek “held ex parte
5 communication on September 21, 2023 and d[i]sguised it as a lawful[] court hearing, where
6 orders were made while she was disqualified and without subject matter, or personal
7 jurisdiction.” (Id. at 56.) She goes on to allege Defendant Commissioner Boucek “did not
8 have jurisdiction, due to the fact she was violating the law by staying on the case, she was
9 required to remove herself, and notify the court” and prohibited from “hav[ing] ex parte
10 communications with any of the Party’s without the notice, and consent of the other party.”
11 (Id. at 57.)
12 The 1839 Complaint alleges this ex parte hearing in the family law case “caused an
13 invalid order to be issued against Plaintiff.” (Id. at 50.) Like the 1730 Complaint, the 1839
14 Complaint alleges Plaintiff “was forced to defend, and abide by an unlawful Restraining
15 Order Petition, against the will of Plaintiff.” (Id. at 57.) She seeks an order that no further
16 action be taken in the family law case. (Id. at 61.) Plaintiff seeks “a withdrawal and
17 voiding of the Court Order issued on 9/21/2023, and a Void of any and all court orders,
18 and findings of facts made by” Defendant Commissioner Boucek. (Id.)
19 Plaintiff’s allegations as to Defendant Judge Smyth are the same as those asserted in
20 the 1730 Complaint, including that he was required to supervise, evaluate, and take action
21 regarding Defendant Commissioner Boucek’s alleged violation of Plaintiff’s rights under
22 the Fourteenth Amendment in issuing the DVRO with the only change being he should
23 have acted regarding Defendant Commissioner proceeding with a hearing on September
24 21, 2023 in the family law case without Plaintiff present. (See id. at 18–28.)
25 Other than their participation in or presence at the September 21, 2023 hearing noted
26 above, the allegations against the other Defendants also are largely the same as in the 1730
27 Complaint, including allegations each “conspired with Defendant Commissioner Boucek,”
28 “set in motion a series of actions of” Defendant Commissioner Boucek, and “failed to
1 intervene to stop the violation.” (Id. at 28, 32 (Yip); Id. at 37 (Sachdev); Id. at 46
2 (Heinrich); Id. at 50 (Samuel Martinette.) Like the 1730 Complaint, the 1839 Complaint
3 identifies Defendants’ connections to the family law case. (See e.g., id. at 29 (Yip
4 represents Defendant Samuel Martinette in the family law case); see e.g., id. at 41 (Sachdev
5 represents the minor children in the family law case).) The 1839 Complaint seeks an order
6 from this Court to stop any action in the family law case and void the DVRO, the September
7 21, 2023 Order, and all other orders from Defendant Commissioner Boucek. (1839 Compl.
8 at 61.)
9 B. Judicial Notice
10 Judicial notice and incorporation-by-reference are exceptions to the general rule that
11 courts should not consider materials outside the pleading on a motion to dismiss. Khoja v.
12 Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
13 “Judicial notice under Rule 201 permits a court to notice an adjudicative fact if it is
14 ‘not subject to reasonable dispute.’” Id. at 999 (quoting Fed. R. Evid. 201(b)). This means
15 that “‘a court may take judicial notice of matters of public record without converting a
16 motion to dismiss into a motion for summary judgment,’ … [b]ut a court cannot take
17 judicial notice of disputed facts contained in such public records.” Id. (quoting Lee v. City
18 of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)).
19 Under the incorporation by reference doctrine, courts may “take into account
20 documents whose contents are alleged in a complaint and whose authenticity no party
21 questions, but which are not physically attached to the [plaintiff’s] pleading.” Davis v.
22 HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (internal quotations and
23 citations omitted). “[I]ncorporation-by-reference is a judicially created doctrine that treats
24 certain documents as though they are part of the complaint itself.” Khoja, 899 F.3d at
25 1002. It allows a defendant to seek incorporation of “a document into the complaint ‘if the
26 plaintiff refers extensively to the document, or the document forms the basis of the
27 plaintiff’s claim.’” Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
28
1 Multiple Defendants have filed requests for judicial notice either in conjunction with
2 a motion or as a separate filing in the 1730 Case, the 1839 Case, or both. (1730 Case-Docs.
3 17-2, 19-2, 26-3, 34-8, 54-1 (filed with motions), 36, 43, 45 (separately filed), and 53
4 (lodgment for Doc. 45); 1839 Case-Docs. 22-2, 24-2 (filed with motions), 27–28
5 (separately filed), 31 (lodgment for Doc. 28).10) There is also significant overlap in their
6 requests with multiple Defendants asking the Court to take judicial notice of the same
7 documents.
8 The Court need not rely on many of these documents to address the pending motions
9 and is not inclined to take judicial notice of or incorporate documents by reference when it
10 is not necessary to ruling on the pending motions, particularly when the Court is dismissing
11 these cases without leave to amend. Accordingly, the Court takes judicial notice of the
12 following: (1) the June 21, 2023 Minute Order in the family law case (Ex. 5 to Defendant
13 Yip’s Motion to Dismiss [1730 Case-Doc. 19-3 at 85–88]); (2) the September 8, 2023
14 Proposed Statement of Decision (Ex. 3 to Defendant Yip’s Motion to Dismiss [1730 Case-
15 Doc. 19-3 at 44–73]; (3) June 28, 2023 Notice of Hearing for the September 21, 2023
16 Hearing (Ex. K in support of Defendant Sachdev’s Motion to Dismiss [1839 Case-Doc.
17 22-2 at 100–104]; (4) Minutes of the September 21, 2023 Hearing (Ex. 11 to [1839 Case-
18 Doc. 24-3 at 119–121]; and (5) the December 19, 2023 Final Statement of Decision (Ex.
19 13 to Defendant Yip’s Supplemental Request for Judicial Notice and Notice of Lodgment
20 [1730 Case-Docs. 28 (Supplemental Request for Judicial Notice), 53 (Notice of Lodgment)
21 at 6–35]).
22 The Court takes judicial notice of these public records but does not take judicial
23 notice of any disputed facts within them. See Khoja, 899 F.3d at 999. The Defendants’
24
25
10 Defendant Yip filed two Supplemental Requests for Judicial Notice asking the Court to
26
take judicial notice of the state court’s December 19, 2023 Final Statement of Decision.
27 (1730 Case-Doc. 45; 1839 Case-Doc. 28.) The Notices of Lodgment that included the
document were filed separately from the Supplement Requests for Judicial Notice in each
28
1 other requests for judicial notice are DENIED because the documents are not necessary to
2 the resolution of the pending motions. Limcaco v. Wynn, No. 21-56285, 2023 WL 154965,
3 at * (9th Cir. Jan. 11, 2023) (finding district court “did not abuse its discretion in denying
4 the motion to take judicial notice of these documents, which it did not rely upon, and which
5 were not necessary to its rulings on the motions to dismiss.”) (citing Great Basin Mine
6 Watch v. Hankins, 456 F.3d 955, 976 (9th Cir. 2006)).
7 C. Motions
8 Currently pending before the Court in the 1730 Case are fourteen motions, including
9 two supplemental motions (1730 Case-Docs. 17–19, 21–22, 26, 34, 41–42 (supplements to
10 1730 Case-Docs. 21–22), 48, 49, 50, 51, and 54) and four separately filed requests for
11 judicial notice (1730 Case-Docs. 36, 43, 45, 53). Seven of the Defendants named in the
12 1730 Complaint have filed motions to dismiss. (1730 Case-Doc. 17 (Defendant Sachdev),
13 18 (Defendants Commissioner Boucek and Judge Smyth), 19 (Defendant Yip), 21, 41 (pro
14 se Defendant Louis Martinette), 22, 42 (pro se Defendant Marie Martinette), 34 (Defendant
15 Joseph Willmore).) Defendant Sherman filed a Special Motion to Strike Plaintiff’s
16 Complaint Pursuant to California Code of Civil Procedure Section 425.16 (hereinafter,
17 “Anti-SLAPP Motion”). (1730 Case-Doc. 26.) And then after Plaintiff filed her 2nd
18 Amended Complaint (1730 Case-Doc. 47), six of the Defendants filed motions to strike it
19 as untimely. (1730 Case-Docs. 48, 49, 50, 51, 54.)
20 All six named Defendants filed motions to dismiss in the 1839 Case. (1839 Case-
21 Docs. 14 (pro se Defendant Samuel Martinette), 17 (pro se Defendant Mark Heinrich), 22
22 (Defendant Sachdev), 23 (Defendants Commissioner Boucek and Judge Smyth), 24
23 (Defendant Yip).) There are also three separately filed requests for judicial notice (1839
24 Case-Docs. 27–28, 31) in addition to the previously noted application to set aside filed by
25 Plaintiff in conjunction with the filing of the 1839 Complaint (1839 Case-Doc. 3).
26
27
28
1 II. DISCUSSION
2 The Court first addresses Plaintiff’s 2nd Amended Complaint filed in the 1730 Case
3 and the motions to strike it. The Court then addresses Defendants’ arguments for dismissal
4 of both cases including addressing Defendants’ requests for judicial notice.
5 A. Motions to Strike Plaintiff’s 2nd Amended Complaint
6 Plaintiff’s Complaint was filed on September 19, 2023 and the motions to dismiss
7 and strike detailed above followed from October 10, 2023 to October 24, 2023 with two
8 supplemental motions to dismiss filed by pro se Defendants on December 20, 2023 (1730
9 Case-Docs. 17–19. 21–22, 26, 34, 41–42.) Plaintiff filed the 2nd Amended Complaint on
10 February 1, 2024. (1730 Case-Doc. 47.) The Court concludes this filing was untimely as
11 an amendment as a matter of right under Federal Rule of Civil Procedure 15(a)(1) and
12 Plaintiff failed to obtain the stipulation of Defendants or permission from the Court to
13 amend under Rule 15(a)(2).
14 1. Amending as a Matter of Right – Rule 15(a)(1)
15 Rule 15(a)(1) addresses amending as a matter of course and states that:
16 A party may amend its pleading once as a matter of course no later than:
(A) 21 days after serving it, or
17
(B) if the pleading is one to which a responsive pleading is required, 21
18 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
19
20 To the extent Plaintiff’s filing of the 2nd Amended Complaint was an attempt to file
21 an amended complaint as a matter of right under Rule 15(a)(1)(A), it was untimely. The
22 2nd Amended Complaint, filed on February 2, 2024, was filed well more than 21 days after
23 Plaintiff claims to have served her initial Complaint. Plaintiff asserts she served the
24 Complaint on Defendants on September 19, 2023, September 20, 2023, or September 21,
25 2023, depending on the Defendant.11 (1730 Case-Docs. 3–16.) The 2nd Amended
26
27
11 As explained further below, pro se Defendants Louis and Marie Martinette both assert
28
1 Complaint was filed on February 1, 2024. (1730 Case-Doc. 47.) Because this is
2 significantly more than 21 days after Plaintiff claims she served the Complaint, the 2nd
3 Amended Complaint could not be filed as a matter of course under Rule 15(a)(1)(A).
4 Amendment under Rule 15(a)(1)(B) was also not timely. Under that Rule, a
5 complaint is a pleading “to which a responsive pleading is required” and numerous
6 Defendants filed “motion[s] under Rule 12(b) [and] (f).” Fed. R. Civ. P. 15(a)(1)(B).
7 Because the 2nd Amended Complaint was not filed within 21 days of service of any of the
8 Defendants’ motions to dismiss, the filing was not timely under Rule 15(a)(1)(B).
9 Thus, Plaintiff’s 2nd Amended Complaint was not timely under Rule 15(a)(1).
10 2. Amending By Consent or With Leave of Court – Rule 15(a)(2)
11 Rule 15(a)(2) addresses other amendments and states, “[i]n all other cases, a party
12 may amend its pleading only with the opposing party’s written consent or the court’s
13 leave.” Plaintiff did not obtain leave from the Court to file her 2nd Amended Complaint
14 and the parties’ motions to strike the 2nd Amended Complaint reflect that she did not obtain
15 the consent of any party to file the 2nd Amended Complaint. (1730 Case-Docs. 48, 49, 50,
16 51, and 54.)
17 Because Plaintiff’s 2nd Amended Complaint is not timely as an amendment as a
18 matter of right under Rule 15(a)(1) or permitted by the Court or with the consent of the
19 Defendants, the motions to strike the 2nd Amended Complaint (1730 Case-Docs. 48, 49,
20 50, 51, and 54) are GRANTED and Plaintiff’s 2nd Amended Complaint (Doc. 47) is
21 STRICKEN.
22 B. Motions to Dismiss
23 1. Federal Rules of Civil Procedure
24 Defendants in both the 1730 Case and the 1839 Case seek dismissal under: Rule
25 12(b)(1) based on lack of subject-matter jurisdiction; Rule 12(b)(6) for failure to state
26 claim; and Rule 8 for failing to provide a short and plain statement of each claim. (1730
27 Case-Docs. 17–19, 21–22, 34, 41–42; 1839 Case-Docs. 14, 17, 22–24.) Because the Court
28
1 finds the Complaint must be dismissed under Rule 12(b)(1) and 12(b)(6), the Court does
2 not additionally address whether the Complaint fails to comply with Rule 8.
3 a) Rule 12(b)(1)
4 Rule 12(b)(1) allows a defendant to move to dismiss a complaint based on a lack of
5 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “When subject matter jurisdiction is
6 challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of
7 proving jurisdiction in order to survive the motion.” Tosco Corp. v. Cmtys. for a Better
8 Env., 236 F.3d 495, 499 (9th Cir. 2001), overruled on other grounds by Hertz Corp. v.
9 Friend, 559 U.S. 77 (2010). “A Rule 12(b)(1) jurisdictional attack may be facial or
10 factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (quoting
11 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “In a facial attack, the challenger
12 asserts that the allegations contained in a complaint are insufficient on their face to invoke
13 federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the
14 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. (citation
15 omitted).
16 b) Rule 12(b)(6)
17 Pursuant to Rule 12(b)(6), an action may be dismissed for failure to allege “enough
18 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
19 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
20 content that allows the court to draw the reasonable inference that the defendant is liable
21 for the misconduct alleged. The plausibility standard is not akin to a
22 probability requirement, but it asks for more than a sheer possibility that a defendant acted
23 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
24 citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s]
25 factual allegations in the complaint as true and construe[s] the pleadings in the light most
26 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d
27 1025, 1031 (9th Cir. 2008).
28 ///
1 However, the Court is “not bound to accept as true a legal conclusion couched as a
2 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the
3 Court “required to accept as true allegations that contradict exhibits attached to the
4 Complaint or matters properly subject to judicial notice, or allegations that are merely
5 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v.
6 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive
7 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from
8 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss
9 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted).
10 2. Specific Grounds for Dismissal Raised in Motions to Dismiss
11 Defendants’ motions to dismiss assert numerous grounds for dismissing the 1730
12 and 1839 Complaints without leave to amend and with prejudice: (1) the Rooker-Feldman
13 doctrine; (2) judicial immunity; (3) Defendants not being state actors;12 (4) failing to allege
14 a plausible constitutional violation; (5) the domestic relations exception; (6) Younger
15 abstention; (7) the Noerr-Pennington doctrine; (8) failing to comply with Rule 8; (9) the
16 frivolity of the Complaint; and (10) failure to properly serve as to certain Defendants.
17 (1730 Case-Docs. 17–19, 21–22, 34, 41–42; 1839 Case-Docs. 14, 17, 22–24.) Most of
18 these issues are raised by multiple Defendants.
19 The Court need not reach every basis argued because the Rooker-Feldman doctrine,
20 judicial immunity, and all Defendants other than Defendant Commissioner Boucek and
21 Defendant Judge Smyth not being state actors require dismissal of both cases without leave
22 to amend. Rather than addressing each individual motion, the Court addresses these issues
23 collectively.
24
25
26
27
12 Defendants assert other deficiencies in stating any plausible claim, including failing to
28
1 a) Rooker-Feldman Doctrine
2 “Under Rooker–Feldman, a federal district court does not have subject matter
3 jurisdiction to hear a direct appeal from the final judgment of a state court. The United
4 States Supreme Court is the only federal court with jurisdiction to hear such an appeal.”
5 Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). The “doctrine bars a district court from
6 exercising jurisdiction … over an action explicitly styled as a direct appeal, but also over
7 the ‘de facto equivalent’ of such an appeal.” Cooper v. Ramos, 704 F.3d 772, 777 (2012)
8 (quoting Noel, 341 F.3d at 1155). A case presents “a forbidden de facto appeal under
9 Rooker-Feldman when the plaintiff in federal district court complains of a legal wrong
10 allegedly committed by the state court and seeks relief from the judgment of that court.”
11 Id. at 777–78 (explaining that in “determin[ing] whether an action functions as a de facto
12 appeal, we ‘pay close attention to the relief sought by the federal-court plaintiff.”) (quoting
13 Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003)). “If a federal plaintiff asserts
14 as a legal wrong an allegedly erroneous decision by a state court and seeks relief from a
15 state court judgment based on that decision, Rooker–Feldman bars subject matter
16 jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a
17 legal wrong an allegedly illegal act or omission by an adverse party, Rooker–Feldman does
18 not bar jurisdiction.” Noel, 341 F.3d at 1164.
19 “Rooker–Feldman ‘is confined to cases … brought by state-court losers ... inviting
20 district court review and rejection of [the state court’s] judgments. Skinner v. Switzer, 562
21 U.S. 521, 532 (2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
22 280, 284 (2005)); see also Reed v. Goertz, 598 U.S. 230, 235 (2023) (distinguishing federal
23 challenges to state statutes or rules and reiterating that Rooker-Feldman “prohibits federal
24 courts from adjudicating cases brought by state-court losing parties challenging state-court
25 judgments.”) (citations omitted).
26 “A federal district court dealing with a suit that is, in part, a forbidden de facto appeal
27 from a judicial decision of a state court must refuse to hear the forbidden appeal. As part
28 of that refusal, it must also refuse to decide any issue raised in the suit that is ‘inextricably
1 intertwined’ with an issue resolved by the state court in its judicial decision.” Noel, 341
2 F.3d at 1158. “[C]laims [are] inextricably intertwined where the relief requested in the
3 federal action would effectively reverse the state court decision or void its ruling.” Cooper,
4 704 F.3d at 779 (internal quotation marks and citations omitted). Or stated another way,
5 “the federal claim is inextricably intertwined with the state-court judgment if the federal
6 claim succeeds only to the extent that the state court wrongly decided the issues before it.
7 Where federal relief can only be predicated up upon a conviction that the state court was
8 wrong, it is difficult to conceive the federal proceeding as, in substance, anything other
9 than a prohibited appeal of the state court judgment.” Id. (quoting Pennzoil Co. v. Texaco,
10 Inc., 481 U.S. 1 (1987)).
11 Plaintiff does not “explicitly style[] [her claims] as a direct appeal,” however, the
12 1730 and 1839 Complaints are “the ‘de facto equivalent’ of such an appeal.” Cooper, 704
13 F.3d at 777. Plaintiff’s claims in both cases are based on her allegation that the DVRO
14 issued by Defendant Commissioner Boucek against Plaintiff was unlawful or invalid
15 because Defendant Commissioner Boucek allegedly should have disqualified herself from
16 the family law case. (1730 Compl. at 100–05; 1839 Compl. at 14, 16, 42.) Additionally,
17 the claims against all other Defendants in both cases are based on Plaintiff’s assertion they
18 failed to intervene to stop Defendant Commissioner Boucek or conspired with Defendant
19 Commissioner Boucek in some respect to issue the allegedly illegal or invalid DVRO
20 against Plaintiff. (See e.g., 1730 Compl. at 29, 33–35, 37–38, 44–45, 63; 1839 Compl. at
21 28, 32, 37, 46, 50.) The allegations of the 1839 Complaint additionally take issue with an
22 alleged ex parte hearing, but the 1839 Complaint is still also based on Defendant
23 Commissioner Boucek not disqualifying herself and Plaintiff ‘s effort to void the DVRO
24 and all other orders from Defendant Commissioner Boucek. (1839 Compl. at 14, 16, 42,
25 61.)
26 Plaintiff’s Complaints fall within Rooker-Feldman’s jurisdictional bar because they
27 are a de facto appeal of the DVRO issued against Plaintiff. Plaintiff is complaining of “a
28 legal wrong committed by the state court”—the issuance of the DVRO against Plaintiff in
1 the family law case—“and seeks relief from the judgment of that court”—withdrawal or
2 voiding of the DVRO. Cooper, 704 F.3d at 778. The legal wrong alleged in the Complaints
3 is the issuance of the DVRO order against Plaintiff by Defendant Commissioner Boucek
4 when she allegedly should have been disqualified. (1730 Compl. at 15 (characterizing
5 DVRO as “false permanent restraining order against Plaintiff”); id. at 100–05 (describing
6 harm as issuance of “invalid” and “illegal” restraining order); see e.g., 1839 Compl. at 57
7 (challenging DVRO based on Defendant Commissioner Boucek staying on the case when
8 she should have been removed).)
9 The relief Plaintiff seeks is the “withdrawal and voiding of the [r]estraining order
10 issued on June 21, 2023, and a void of any and all court orders and findings of fact by
11 [Defendant Commissioner Boucek].” (1730 Compl. at 112–113; 1839 Compl. at 61.)
12 Plaintiff has lost in state court and is asking this Court to review and reject the state court’s
13 DVRO against her and to void it and any other decision by Defendant Commissioner
14 Boucek. Skinner, 562 U.S. at 532 (“Rooker–Feldman is confined to cases … brought by
15 state-court losers ... inviting district court review and rejection of [the state court’s]
16 judgments.”) (citations omitted).
17 Because this case is a de facto appeal from the state court’s DVRO, this Court must
18 refuse to hear it and “also refuse to decide any issue raised in the suit that is inextricably
19 intertwined with” the state court’s issuance of the DVRO against Plaintiff. Noel, 341 F.3d
20 at 1158. Plaintiff asserts several reasons for asking this Court to find the state court DVRO
21 illegal and void it—disqualification and a conspiracy. To the extent these challenges to
22 the state court’s issuance of the DVRO could be considered in any respect separate from
23 her de facto appeal of the DVRO, they are inextricably intertwined with the state court’s
24 DVRO.
25 The primary relief requested in this case to remedy these alleged errors—voiding or
26 withdrawing the DVRO—“would effectively reverse the state court decision or void its
27 ruling.” Cooper, 704 F.3d at 779 (“claims [are] inextricably intertwined where the relief
28 requested in the federal action would effectively reverse the state court decision or void its
1 ruling.”) (internal quotation marks and citations omitted). Plaintiff alleges that the other
2 Defendants conspired with Defendant Commissioner Boucek and did not intervene to stop
3 her from issuing the DVRO when she should have been disqualified.13 Similarly, although
4 the 1839 Complaint adds Defendant Commissioner Boucek holding of the September 21,
5 2023 hearing without Plaintiff present, the challenge is still based, at least in part, on
6 Plaintiff’s allegation that Defendant Commissioner Boucek should have been disqualified.
7 Granting the damages sought or voiding the DVRO would necessarily rely on the alleged
8 illegality of the DVRO and “effectively reverse the state court decision or void its ruling.”
9 Cooper, 704 F.3d at 779. “Where federal relief can only be predicated up upon a conviction
10 that the state court was wrong, it is difficult to conceive the federal proceeding as, in
11 substance, anything other than a prohibited appeal of the state court judgment.” Id.
12 (citation omitted); see also Boudette v. Oskerson, No. 22-36003, 2024 WL 1342613, at *2
13 (9th Cir. Mar. 29, 2024) (finding case “clearly barred by Rooker-Feldman” when the
14 plaintiff’s alleged injuries “flow from a series of state court judgments that ha[d] been
15 entered against [her] in protracted litigation” with an ex-spouse over property); see also
16 Bianchi, 334 F.3d at 898 (finding district court lacked jurisdiction under Rooker-Feldman
17 when a federal plaintiff is “essentially ask[ing] the federal court to review the state court’s
18 denial in a judicial proceeding … and to afford him the same individual remedy he was
19 denied in state court.”) (citations omitted). Plaintiff is “essentially ask[ing] [this] [C]ourt
20 to review the state court’s denial in a judicial proceeding … and to afford [her] the same
21 individual remedy [she] was denied in state court.” Bianchi, 334 F.3d at 898–99 (internal
22 citation omitted).
23
24
25 13 The Court will not cite the allegations as to each individual Defendant among the lengthy
Complaints, but notes they are similar as to each Defendant attorney. For example,
26
Plaintiff alleges Defendant Yip “conspired with Defendant Commissioner Leah Boucek”
27 (1730 Compl. at 29), was obligated to raise disqualification of Defendant Commissioner
Boucek and intervene to stop her (id. at 33–35) and forced Plaintiff to participate in a legal
28
1 Thus, Plaintiff’s claims in the 1730 and 1839 cases are barred by Rooker-Feldman
2 and these cases must both be dismissed for lack of subject matter jurisdiction. Id. at 898
3 (“If claims raised in the federal court action are ‘inextricably intertwined’ with the state
4 court’s decision such that the adjudication of the federal claims would undercut the state
5 ruling or require the district court to interpret the application of state laws or procedural
6 rules, then the federal complaint must be dismissed for lack of subject matter jurisdiction.”)
7 This is a sufficient basis for dismissal of both Complaints. However, given the Court’s
8 obligation to consider whether leave to amend should be granted, the Court addresses two
9 additional issues that require dismissal of these cases.
10 a) Judicial Immunity
11 Defendants Commissioner Boucek and Judge Smyth move to dismiss Plaintiff’s
12 claims without leave to amend based on judicial immunity. (1730 Case-Doc. 18-1 at 7–9;
13 1839 Case-Doc. 23-1 at 4–7.) Defendant Commissioner Boucek argues she is entitled to
14 absolute judicial immunity because Plaintiff’s claims arise from actions she took as a state
15 judicial officer in a case before her. (1730 Case-Doc. 18-1 at 8; 1839 Case-Doc. 23-1 at
16 7.) More specifically, she explains that granting the DVRO against Plaintiff and
17 determining whether she should have been disqualified and holding a hearing in the state
18 court are judicial in nature. (1730 Case-Doc. 18-1 at 8; 1839 Case-Doc. 23-1 at 7.)
19 Similarly, Judge Smyth argues the conduct alleged against him—that he failed to properly
20 supervise or correct Defendant Commissioner Boucek’s rulings—are based on his duties
21 as Presiding Judge that were “very much a function of his judicial office.” (1730 Case-
22 Doc. 18-1 at 9; 1839 Case-Doc. 23-1 at 7.)
23 State judges and commissioners of the superior courts are entitled to immunity for
24 their judicial acts. Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (“It is well
25 established that state judges are entitled to absolute immunity for their judicial acts.”)
26 (citations omitted); Franchesi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995); see also
27 Ricotta v. State of California, 4 F. Supp. 2d 961, 973 (S.D. Cal. 1998) (“Judicial immunity
28 extends to municipal court commissioners.”). “The primary policy of extending immunity
1 to judges … is to ensure independent and disinterested judicial … decisionmaking.”
2 Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (citations omitted).
3 Judicial immunity applies in cases brought under § 1983. Stump v. Sparkman, 435
4 U.S. 349, 356 (1978) (citation omitted). “A judge will not be deprived of immunity
5 because the action he took was in error, was done maliciously, or was in excess of his
6 authority; rather, he will be subject to liability only when he has acted in the ‘clear absence
7 of all jurisdiction.’” Id. at 356–57. Additionally, “allegations that a conspiracy produced
8 a certain decision should no more pierce the actor’s immunity than allegations of bad faith,
9 personal interest or outright malevolence.” Ashelman, 793 F.2d at 1078 (citations omitted).
10 Plaintiff’s claims—that Defendant Commissioner Boucek violated her constitutional
11 rights by issuing the DVRO against Plaintiff when Defendant Commissioner Boucek
12 should have disqualified herself from the case and not held a hearing without Plaintiff
13 present (see supra I.A)—clearly fall within Defendant Commissioner Boucek’s judicial
14 capacity. See Stump, 435 U.S. at 356; Ashelman, 793 F.2d at 1075. Similarly, Judge
15 Smyth’s alleged conduct—not supervising Defendant Commissioner Boucek’s rulings,
16 including her not disqualifying herself and issuing the DVRO against Plaintiff, and holding
17 a hearing without a party present—falls squarely within his judicial capacity.
18 Defendants Commissioner Boucek and Judge Smyth are both entitled to judicial
19 immunity. Accordingly, Plaintiff’s claims against Defendant Commissioner Boucek and
20 Defendant Judge Smyth are DISMISSED.14
21 b) Non-Judicial Defendants – State Actor Requirement
22 The only Defendants named in the 1730 Complaint and 1839 Complaint that appear
23 to be judicial officers are Defendant Commissioner Boucek and Defendant Judge Smyth.
24 The remaining Defendants (hereinafter, “Non-Judicial Defendants”) are not judicial
25 officers. Numerous Non-Judicial Defendants, in addition to raising the Rooker-Feldman
26
27
28
1 bar, also move to dismiss based on the Non-Judicial Defendants not being state actors as
2 required for a § 1983 claim. (1730 Case-Doc. 17-1 at 12–13; 1730 Case-Doc. 19-1 at 14–
3 15; 1730 Case-Doc. 34 at 7; 1839 Case-Doc. 22-1 at 14–15, 1839 Case-Doc. 24 at 16–17.)
4 “A § 1983 plaintiff must demonstrate a deprivation of a right secured by the
5 Constitution or laws of the United States,15 and that the defendant acted under color of
6 state law.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins,
7 487 U.S. 42, 48 (1988) (emphasis added)). “In order to recover under § 1983 for conduct
8 by the defendant, a plaintiff must show ‘that the conduct allegedly causing the deprivation
9 of a federal right be fairly attributable to the State.’” Caviness v. Horizon Cmty. Learning
10 Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (emphasis added) (quoting Lugar v.
11 Edmondson Oil Co., 457 U.S. 922, 937 (1982)) (citations omitted). “The state-action
12 element in § 1983 ‘excludes from its reach merely private conduct, no matter how
13 discriminatory or wrongful.’” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
14 40, 50 (1999)).
15
16
17 15 Plaintiff’s Complaints also fail to plausibly allege the requisite deprivation of a
constitutional right, as raised by multiple Defendants. (1730 Case-Doc. 17 at 14 (“Plaintiff
18
provides no factual evidence to show she was denied due process [and] [t]he fact remains,
19 Plaintiff was given every opportunity to be heard (and then some) on the permanent DVRO
over the four evidentiary hearings.”).); 1730 Case-Doc. 18-1 at 10 (“There is simply
20
nothing irregular or improper about judicial officers deciding whether they are disqualified
21 or granting or denying DVRO requests after a hearing.”); 1730 Case-Doc. 19-1 at 14
(“Here, the conclusory allegations are based solely on Plaintiff’s wild speculation and
22
unsupported assumptions that Defendant Yip, [counsel for Plaintiff’s ex-husband in the
23 family law case,] was involved in a conspiracy with the other participants in the restraining
order hearing.”); 1730 Case-Doc. 34 at 6 (“no facts are pled to show that this moving
24
defendant, [Plaintiff’s own counsel in the family law case] was part of any conspiracy or
25 joint action with Commissioner Boucek, nor are there any allegations which would support
such a serious and inflammatory accusation.”). However, because the Court finds the case
26
are barred by the Rooker-Feldman doctrine, the judicial officer Defendants are immune,
27 and the Non-Judicial Defendants cannot be considered state actors, the Court need not
additionally address the lack of a plausible constitutional violation under the Fourteenth
28
1 The allegations in the Complaints indicate that the Non-Judicial Defendants’ alleged
2 roles in the issuance of the DVRO and the September 21, 2023 hearing, or even in the
3 family law case in general, were only as private actors. First, to the extent the Complaints
4 identify a Defendant’s connection to the family law case, the role alleged makes clear they
5 are not a state actor. Although challenging to deduce from the lengthy and repetitive
6 allegations, the connections fall into two groups: (1) those that provided testimony or
7 information used in the DVRO proceeding or were at the September 21, 2023 hearing and
8 (2) those that served as counsel for a party in the family law case or some other legal
9 proceeding related to the family law case. For example, Defendant Yip is alleged to have
10 represented Defendant Martinette, Plaintiff’s ex-husband, in the family law case, and
11 Defendant Sachdev “is the attorney for the minor children.” (1730 Compl. at 29 (Yip); 54
12 (Sachdev); see also supra I.A (summarizing allegations of the Complaint, including
13 examples or allegations regarding the roles of Defendants).) Defendants Wise, Heinrich,
14 Samuel Martinette, Louis Martinette, and Marie Martinette are alleged to have falsely
15 testified in the family law case in the DVRO proceeding (id. at 46, 75, 79, 84, 92), but that
16 would not make them state actors. The factual allegations in the Complaints do not even
17 suggest the conduct of the Non-Judicial Defendants could “be fairly attributable to the
18 State.” Caviness, 590 F.3d at 812 (explaining that “a plaintiff must show that the conduct
19 allegedly causing the deprivation of a federal right be fairly attributable to the State.”)
20 Second, Plaintiff’s allegations that the Non-Judicial Defendants conspired with
21 Defendant Commissioner Boucek in the issuance of the DVRO or in conducting of the
22 September 21, 2023 hearing are insufficient to meet the state actor requirement of § 1983.
23 Plaintiff alleges repeatedly throughout the Complaints numerous Defendants “set in motion
24 a series of actions of the State Agent Commissioner Leah Boucek,” or were “acting under
25 color of law because [their] actions caused a Government State Agent,” Defendant
26 Commissioner Boucek, “to subject the Plaintiff to a deprivation of Plaintiff’s liberty of
27 locomotion.” (See e.g., 1730 Compl. at 67, 70, 77–78; see e.g., 1839 Compl. at 23, 32, 37,
28 46, 50.) However, the allegations are conclusory and completely insufficient to consider
1 these individuals state actors based on a conspiracy. As detailed above, the only factual
2 allegations are that they participated in the family law case as a witness or attorney and did
3 not seek Defendant Commissioner Boucek’s disqualification or stop her from conducting
4 a noticed hearing Plaintiff did not appear for. “[M]erely resorting to the courts … does not
5 make a party a co-conspirator or a joint actor with the judge.” Price v. State of Hawaii,
6 939 F.2d 702, 708 (1991) (citation omitted); Schucker v. Rockwood, 846 F.2d 1202, 1205
7 (9th Cir. 1988) (“[C]onclusory allegations that [a Judge] conspired with [attorneys] are
8 insufficient to support [a] section 1983 claim.”) (citing Aldabe v. Aldabe, 616 F.2d 1089,
9 1092 (9th Cir.1980)). (per curiam).
10 Third, Plaintiff’s repeated conclusory assertions that Defendants were state actors
11 are insufficient to show that any of the Non-Judicial Defendants were acting under color
12 of state law. Kirtley, 326 F.3d 1088, 1092 (“plaintiff must demonstrate … that the
13 defendant acted under color of state law.”). Here, Plaintiff recognizes the Non-Judicial
14 Defendants are private actors, but attempts to get around the requirement by simply
15 asserting they are state actors. Plaintiff alleges “[a]lthough [each Defendant] is a private
16 individual and not a state official, I instruct you … that [the] relationship between [each
17 Defendant] and the state was sufficiently close that [they] were acting under color of state
18 law.” (1730 Compl. at 53 (example of allegation repeated throughout the Complaints as
19 to numerous Defendants) (emphasis added).) The Complaints go on to state “[t]his element
20 of Plaintiff’s claim is not in dispute, and you must find that this element has been
21 established.” (Id.) There are no facts supporting this assertion. To the extent Plaintiff
22 relies on their roles in the family law case—the only facts alleged as to the Non-Judicial
23 Defendants—that is insufficient to make them state actors. “Invoking state legal
24 procedures does not constitute ‘joint participation or ‘conspiracy’ with state officials
25 sufficient to satisfy section 1983’s state action requirement.” Schucker, 846 F.2d at 1205
26 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 n.21 (1982)).
27 Plaintiff also alleges Defendants were “acting under color of law because [they were]
28 judicial officer[s] of the court who subjected Plaintiff to a deprivation of her liberty, and
1 by [their] conduct, under State Law, deprived Plaintiff of her liberty without due process.”
2 But generally, private attorneys are not state actors. Briley v. California, 564 F.2d 849,
3 855 (9th Cir. 1977) (“We have repeatedly held that a privately-retained attorney does not
4 act under color of state law for purposes of actions brought under the Civil Rights Act.”).
5 In family law cases, like this one, courts regularly reject attempts to label an attorney for
6 an opposing party as a state actor under § 1983. See Plasola v. California, Case No. CV
7 19-5592 JAK (SS), 2019 WL 8013107, at *2 (C.D. Cal. Nov. 8, 2019) (collecting cases).
8 The Non-Judicial Defendants are either private attorneys or private individuals and
9 there are no factual allegations from which the Court could even infer they were acting
10 under color of state law. Accordingly, the Court DISMISSES the claims against all Non-
11 Judicial Defendants.
12 3. Denial of Leave to Amend
13 “[A] district court should grant leave to amend even if no request to amend the
14 pleading was made, unless it determines that the pleading could not possibly be cured by
15 the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d
16 242, 247 (9th Cir. 1990) (citations omitted). Here, in addition to not seeking leave to amend
17 or explaining how she could, Plaintiff did not respond to any of the motions filed in these
18 cases.
19 When determining whether to grant leave to amend, courts generally consider five
20 factors, known as the Foman factors as stated by the Supreme Court in Foman v. Davis,
21 371 U.S. 178, 182 (1962). These factors include: (1) undue delay; (2) bad faith on the part
22 of the party seeking leave to amend; (3) undue prejudice to the non-moving party; (4)
23 futility of amendment; and (5) whether the plaintiff has previously amended the complaint.
24 Id. “Dismissal of a complaint without leave to amend is proper where it is clear that the
25 complaint could not be saved by amendment,” i.e. amendment would be futile. Cooper,
26 704 F.3d at 783.
27 The Court finds Plaintiff should not be granted leave to amend her claims. Plaintiff
28 has not previously amended the claims or engaged in undue delay in these two cases.
1 However, based on the record in these cases and the related cases, it appears Plaintiff may
2 have been attempting obstruct the proceedings in the family law case and harass or be a
3 nuisance to the Defendant attorneys and witnesses in the family law case because she was
4 displeased with the outcome of the DVRO proceedings. This Court would be enabling or
5 extending that harassment and risk undue prejudice to these Defendants in having to file
6 another round of motions to dismiss an amended pleading when Plaintiff did not even
7 respond to their first set of motions.
8 However, the Court need not rely only on undue prejudice or bad faith, because any
9 amendment would be futile. The Court lacks subject-matter jurisdiction under Rooker-
10 Feldman and that is not issue that could be cured under the circumstances of this case.
11 Plaintiff’s claims in both cases are challenges to state court decisions in her family law
12 case. That cannot be cured by amendment. When claims are barred by Rooker-Feldman
13 and there is no basis for finding the claims could be cured, dismissal without leave to amend
14 is permissible. See Boudette, 2024 WL 1342613, at * 2 (explaining that when “there is no
15 basis to conclude [a plaintiff] could replead [their] claims to avoid the Rooker-Feldman
16 jurisdictional bar, there is no prejudicial error in the district court’s refusal to grant leave
17 to amend.”) (citing Cervantes v. Countrywide Home Loans, 656 F.3d 1034, 1041 (9th Cir.
18 2011)).
19 Even if the claims were not barred by Rooker-Feldman, Plaintiff’s claims could still
20 not be cured by amendment because the Defendants are either not state actors or entitled
21 to judicial immunity. “If judicial … immunity bar[s] recovery, no amendment could cure
22 the deficiency and the action [is] properly terminated on a motion to dismiss.” Ashelman,
23 793 F.2d at 1075. Similarly, Plaintiff’s claims against all other Defendants are also futile
24 because, as detailed above, they are all private actors. Plaintiff’s Complaints make clear
25 that she was aware of this deficiency, she states they were private actors in the Complaints,
26 and she attempted to overcome it by instructing the Court that they are state actors.
27 However, as discussed above, allegations of a conspiracy are insufficient when the only
28 conduct any Defendant allegedly engaged in was providing testimony or information in a
1 state court family law proceeding or being an attorney for a party in the family law case.
2 Any amendment would be futile and allowing Plaintiff to amend would be unduly
3 prejudicial to the Defendants. Accordingly, the Court DENIES leave to amend.
4 4. Other Motions Filed
5 Pro se Defendants Marie Martinette and Louis Martinette filed Motions to Dismiss
6 based on improper service of the 1730 Complaint (1730 Case-Docs. 21–22) and
7 supplemented those Motions (1730 Case-Docs. 41–42). Given the Court’s dismissal of the
8 1730 Complaint without leave to amend, the Court DENIES these Motions as MOOT.
9 (1730 Case-Docs. 21–22, 41–42.)
10 Defendant Sherman’s Anti-SLAPP Motion seeks to strike the 1730 Complaint
11 pursuant to California Code of Civil Procedure Section 425.16. (1730 Case-Doc. 26.)
12 Given the Court’s dismissal of the 1730 Complaint without leave to amend, the Court need
13 not reach whether it should also be stricken as to Defendant Sherman under § 425.16.
14 Accordingly, Defendant Sherman’s Anti-SLAPP Motion is DENIED as MOOT.
15
16
17
16 Defendant Yip’s Motion to Dismiss the 1839 Complaint includes a request for sanctions
18
under the Court’s inherent powers based on Plaintiff filing these two cases (1730 Case and
19 1839 Case) and Case No. 3:23-cv-1854-RBM-VET against him under § 1983 despite
Plaintiff admitting in the Complaints that he is a private individual. (Doc. 24-1 at 20
20
(arguing Plaintiff has acted in bad faith by naming him as a Defendant despite
21 acknowledging he is not a state actor).) As discussed above, Plaintiff did acknowledge that
the Non-Judicial Defendants were “private individual[s] and not … state official[s].” (See
22
supra II.B.2.b) (quoting 1730 Compl. at 53 (example of allegation as to numerous
23 Defendants); see also 1839 Compl. at 32 (same allegation as to Defendant Yip). However,
as also detailed above, Plaintiff attempted to overcome the state actor requirement and
24
Defendants being private individuals with allegations of a conspiracy among all the
25 Defendants. (See supra II.B.2.b).) While Plaintiff’s state actor allegations against the Non-
Judicial Defendants are, at best, insufficient legal conclusions that cannot be cured by
26
amendment (see id.; see also II.B.3 (denial of leave to amend)), the Court is not persuaded
27 that sanctions based on bad faith are warranted on this basis at this point. Defendant Yip’s
request for sanctions under the Court’s inherent powers based on Plaintiff’s state actor
28
1 III. CONCLUSION
2 For the foregoing reasons and as set forth above, the Court DISMISSES the 1730
3 and 1839 Cases WITHOUT LEAVE TO AMEND. The requests for judicial notice are
4 GRANTED in part as set forth above (see supra I.B) and otherwise DENIED.
5 As set forth in detail above, the Court rules as follows in the 1730 Case:
6 • GRANTS Defendant Sachdev’s Motion to Dismiss (Doc. 17);
7 • GRANTS Defendant Commissioner Boucek and Defendant Judge Smyth’s Motion
8 to Dismiss (Doc. 18);
9 • GRANTS Defendant Yip’s Motion to Dismiss (Doc. 19);
10 • DENIES as MOOT Defendant Sherman’s Motion to Strike (Doc. 26);
11 • GRANTS Defendant Willmore’s Motion to Dismiss (Doc. 34);
12
• GRANTS Defendant Willmore’s Motion to Strike 2nd Amended Complaint (Doc.
13
48);
14
• GRANTS Defendant Boucek and Defendant Smyth’s Ex Parte Motion to Strike 2nd
15
Amended Complaint (Doc. 49);
16
• GRANTS Defendant Sherman’s Motion to Strike 2nd Amended Complaint (Doc.
17
50);
18
• GRANTS Defendant Yip’s Ex Parte Motion to Strike 2nd Amended Complaint
19
(Doc. 51);
20
• GRANTS Defendant Sachdev’s Motion to Strike 2nd Amended Complaint (Doc.
21
54);
22
• DENIES as MOOT pro se Defendant Louis Martinette and Defendant Marie
23
Martinette’s motions to dismiss and supplements to motions to dismiss based on
24
improper service (Docs. 21–22, 41–42);
25
• DENIES as MOOT Plaintiff’s Request to Electronically File (Doc. 3).
26
For the foregoing reasons and as set forth in detail above, the Court rules as follows in
27
the 1839 Case:
28
I e GRANTS Defendant Sachdev’s Motion to Dismiss (Doc. 22);
2 e GRANTS Defendant Commissioner Boucek and Defendant Judge Smyth’s Motion
3 to Dismiss (Doc. 23);
4 e GRANTS Defendant Yip’s Motion to Dismiss and DENIES the request for
5 sanctions (Doc. 24);
6 e DENIES as MOOT pro se Defendants’ Motions to Dismiss (Docs. 14, 17);
7 e DENIES as MOOT Plaintiff's Motion to Set Aside Void Judgment (Doc. 3) and
8 Request to Electronically File (Doc. 4).
? The Clerk shall enter judgment dismissing the 1730 Case and 1839 Case without
10 eave to amend and close the case.
IT IS SO ORDERED.
12 || Dated: May 14, 2024 ZB Ba
13
HON. RUTH BERMUDEZ MONTENEGRO
14 UNITED STATES DISTRICT JUDGE
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