Opinion

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5

6 BHS LAW LLP, Case No. 25-cv-09864-WHO

7 Plaintiff,

ODER ON MOTION TO DISMISS

v.

8

Re: Dkt. Nos. 18, 24, 32

9 MICHAEL MARKMAN,

Defendant.

10

11

12 Plaintiff BHS Law, LLP (“BHS”) brings this lawsuit against the Hon. Michael Markman

13 (“Judge Markman”), Presiding Judge of the Superior Court of California, County of Alameda, for

14 alleged misconduct during a civil proceeding in which BHS was counsel. BHS alleges that Judge

15 Markman threatened criminal prosecution after concluding that the firm had “intimidate[d] Class

16 Members” in the case. It also claims that he made “materially false” statements about the firm’s

17 “attorney misconduct,” which ultimately led the firm’s client to terminate its representation.

18 Judge Markman now moves to dismiss for lack of subject matter jurisdiction. He is entitled to

19 immunity under the doctrine of judicial immunity and under the Eleventh Amendment.1 I

20 GRANT Judge Markman’s motion to dismiss WITHOUT LEAVE TO AMEND.

21 BACKGROUND

22 BHS is a California law firm located in Santa Clara County, California. Complaint

23 (“Compl.”) [Dkt. No. 1] ¶ 5. BHS was retained in 2018 by West Coast Quartz Corporation

24 (“WCQ”) to assist in defending the corporation against a lawsuit before Judge Markman, Mendoza

25 et al. v. W. Coast Quartz Corp., RG18927787 (Alameda Super. Ct. 2018) (the “Mendoza case”).

26 Id. ¶ 2. The Mendoza case was a class action challenging “WCQ’s break policies under California

27

1 labor law.” Id. ¶ 10. As WCQ prepared to file a cross-complaint for indemnity against certain

2 supervisory Class Members, Judge Markman allegedly “accused BHS of intending to ‘intimidate

3 Class Members” into “contradicting [plaintiff] Mendoza’s allegations.” Id. ¶¶ 13, 23. While BHS

4 “repeatedly advised” Judge Markman that “cross-complaints for indemnity are legally permitted

5 and do not constitute intimidation,” Judge Markman “issued escalating threats of criminal

6 referral.” Id. ¶ 24. This caused BHS to withdraw its cross-complaint. See id. ¶ 25.

7 In addition to these remarks, Judge Markman also allegedly “incorporated false and

8 unsubstantiated findings of ‘attorney misconduct’ into his written orders, statements of decision,

9 and judgment.” Id. ¶ 27. As a result, in May 2025, WCQ “abruptly terminated BHS,” citing its

10 purported misconduct as the reason for dismissal. See id. ¶ 29. BHS then brought this lawsuit

11 against Judge Markman in his individual capacity, alleging violations of 28 U.S.C. § 1983 and the

12 First and Fourteenth Amendments of the United States Constitution. See id. ¶ 7. The firm seeks

13 various forms of relief, including compensatory damages, a “temporary, preliminary, and

14 permanent injunction to restrain Hon. Michael Markman from falsely accusing Plaintiff of

15 misconduct of intimidating Class Members,” declaratory relief, and attorney’s fees. See id. Prayer

16 for Relief.

17 On February 9, 2026, Judge Markman moved to dismiss the complaint as lacking subject

18 matter jurisdiction. See Motion to Dismiss Complaint (“Mot.”) [Dkt. No. 18]. BHS filed an

19 opposition on February 11, 2026. See Plaintiff BHS Law LLP’s Opposition to Defendant’s

20 Motion to Dismiss (“Oppo.”) [Dkt. No. 24]. Judge Markman replied on March 3, 2026. See

21 Defendant Michael Markman’s Reply to Plaintiff’s Opposition to Motion to Dismiss Plaintiff’s

22 Complaint (“Repl.”) [Dkt. No. 32].

23 LEGAL STANDARD

24 A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject

25 matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited

26 jurisdiction,” and it is to be “presumed that a cause lies outside this limited jurisdiction.”

27 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is the burden of the party

1 matter jurisdiction to grant the relief requested. Id.

2 A challenge under Rule 12(b)(1) may be facial or factual. See Safe Air for Everyone v.

3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the jurisdictional challenge is

4 confined to the allegations pleaded in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362

5 (9th Cir. 2004). The challenger asserts that the allegations in the complaint are true and draws all

6 reasonable inference in favor of the party opposing dismissal. See id.

7 By contrast, “in a factual attack, the challenger disputes the truth of the allegations that, by

8 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve

9 this challenge, courts “need not presume the truthfulness of the plaintiff’s allegations.” Id.

10 (citation omitted). Instead, courts “may review evidence beyond the complaint without converting

11 the motion to dismiss into a motion for summary judgment.” Id. (citations omitted). “Once the

12 moving party has converted the motion to dismiss into a factual motion by presenting affidavits or

13 other evidence properly before the court, the party opposing the motion must furnish affidavits or

14 other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id.

15 (quoting Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir.

16 2003)).

17 DISCUSSION

18 I. Absolute Immunity

19 “Although unfairness and injustice to a litigant may result on occasion, ‘it is a general

20 principle of the highest importance to the proper administration of justice that a judicial officer, in

21 exercising the authority vested in him, shall be free to act upon his own convictions, without

22 apprehension of personal consequences to himself.’” Mireles v. Waco, 502 U.S. 9, 9–10 (1990)

23 (quoting Bradley v. Fisher, 80 U.S. 333, 335 (1871)). “A judge is not deprived of immunity

24 because he takes actions which are in error, are done maliciously, or are in excess of his

25 authority.” Meek v. Cnty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (citing Stump v.

26 Sparkman, 435 U.S. 349, 355–56 (1978)). Immunizing even intentional and malicious conduct

27 stems from the belief that “judges should be free to make controversial decisions and act upon

1 The Supreme Court has only identified two situations where a judicial officer may be

2 stripped of absolute immunity. “First, a judge is not immune from liability for nonjudicial actions,

3 i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions,

4 though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at

5 11–12 (citations omitted). To determine whether a particular act is judicial in nature, the Ninth

6 Circuit has outlined various factors courts to consider, including whether:

7 (1) [T]he precise act is a normal judicial function; (2) the events

occurred in the judge’s chambers; (3) the controversy centered

8 around a case then pending before the judge; and (4) the events at

issue arose directly and immediately out of a confrontation with

9 the judge in his or her official capacity.

10 New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1302 (9th Cir. 1989). And the “complete

11 absence of all jurisdiction” is only met when there is a “clear lack of all subject matter

12 jurisdiction.” Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828 F.2d 1385, 1389 (9th Cir. 1987); see,

13 e.g., Stump, 435 U.S. at 357 n.7 (1978) (“[I]f a probate judge, with jurisdiction over only wills and

14 estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and

15 would not be immune from liability for his actions; on the other hand, if a judge of a criminal

16 court should convict a defendant of a nonexistent crime, he would merely be acting in excess of

17 his jurisdiction and would be immune.”).

18 Neither situation is met here. BHS challenges three actions by Judge Markman it

19 considers “non-judicial”: (1) issuing “threats of criminal prosecution” to “chill [its] First

20 Amendment right to file a lawful cross-complaint”; (2) making “knowingly false criminal

21 accusations” against it; and (3) “publishing stigmatizing ‘misconduct’ findings that were

22 ‘unnecessary to any judicial determination.’” Oppo. at 6. The alleged misconduct occurred

23 entirely on the record and stemmed directly from BHS’s purported actions in the Mendoza case.

24 Taken together, even if Judge Markman’s conduct was in “error,” “done maliciously,” or in

25 “excess of his authority,” it was certainly “taken in [his] judicial capacity.” Mireles, 502 U.S. at

26 11–12. These actions qualify as routine judicial functions. Meek, 183 F.3d at 965; New Alaska

27 Dev. Corp., 869 F.2d at 1302.

1 Venture LLC v. Real Soda in Real Bottles, Ltd. (“Drink Tank”) to argue that a “court lacks subject

2 matter jurisdiction when a statute-based cause of action fails to meet statutory prerequisites.” Mot.

3 at 3; Compl. ¶ 18; see 71 Cal. App. 5th 528 (2021). In BHS’s view, “where the law prohibits a

4 conduct, the court cannot assume jurisdiction over a party, who did not commit the prohibited

5 conduct.” Id. Applying this interpretation of Drink Tank, BHS asserts that Judge Markman

6 lacked jurisdiction over the entire Mendoza case because the state court plaintiff’s “six-hour” meal

7 break theory “did not state a violation” of the California Labor Code. Compl. ¶ 19.

8 That view is mistaken. “To lose the protection of judicial immunity . . . a judge must act in

9 clear absence of all subject matter jurisdiction, not merely in excess of jurisdiction.” Mullis, 828

10 F.2d at 1389. “Where a court has some subject-matter jurisdiction, there is sufficient jurisdiction

11 for immunity purposes.” Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993). Even

12 assuming arguendo that the state court plaintiff failed to state a violation of the California Labor

13 Code, the plaintiff successfully stated other claims against WCQ, including violations of

14 California’s Unfair Competition Law and PAGA. That alone suggests Judge Markman’s actions,

15 at worst, were in “excess of jurisdiction,” rather than “absen[t] . . . all subject matter jurisdiction.”

16 Id.

17 Because neither exception to the doctrine applies, absolute immunity bars BHS from

18 bringing this action against Judge Markman for his conduct in the Mendoza case. Judge

19 Markman’s motion to dismiss is accordingly GRANTED.

20 II. Eleventh Amendment

21 Although my ruling on judicial immunity, I address an alternative argument by Judge

22 Markman under the Eleventh Amendment of the United States Constitution. The Eleventh

23 Amendment declares that the judicial power of federal courts “shall not be construed to extend to

24 any suit in law or equity” brought against a State or its officials by “Citizens of another State.”

25 U.S. Const. amend. XI. Courts have not been textualist in their reading of the Eleventh

26 Amendment, which has been understood as standing for a broader principle of sovereign

27 immunity embedded within the structure of the United States Constitution. See, e.g., Blatchford v.

1 Eleventh Amendment to stand not so much for what it says, but for the presumption of our

2 constitutional structure which it confirms . . .”).

3 “[S]tate case law and constitutional provisions make clear that the [California Superior]

4 Court is a state agency.” Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110

5 (9th Cir. 1987), superseded by statute on other grounds. This case was not filed against the

6 Superior Court; it was brought against Judge Markman, a judge “paid by the state.” Hyland v.

7 Wonder, 117 F.3d 405, 413 (9th Cir. 1997). A state agent or employee is not “automatically

8 entitled to sovereign immunity.” Id. Instead, immunity under the Eleventh Amendment extends

9 to Judge Markman if he can “show that the action is in essence one for recovery of money from

10 the state, [and that] the state is the real, substantial party in interest.” Id. (internal quotation marks

11 omitted).

12 BHS claims that Judge Markman’s motion to dismiss “never explains how [his purported

13 misconduct] constitute actions of the State itself rather than personal unconstitutional conduct.”

14 Oppo. at 4. But both the California Rules of Court and the California Government Code provide

15 that the State of California, through the Judicial Council of California, offers representation and

16 indemnification of judicial officers. See Cal. Rules of Court, rule 10.202(b); Cal. Gov Code §

17 811.9. Should Judge Markman be found liable in this case, the State of California could

18 potentially indemnify him for all monetary damages—including BHS’s request for compensatory

19 damages. These facts show that the “state is the real, substantial party in interest,” and that this

20 case therefore should be barred under the Eleventh Amendment. Hyland, 117 F.3d at 413.

21 III. Leave to Amend

22 Finally, BHS requests that I provide leave to amend its complaint if I dismiss it. That

23 request is DENIED. When a court dismisses a complaint, it “should grant leave to amend even if

24 no request to amend the pleading was made, unless it determines that the pleading could not

25 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

26 2000). In making this determination, courts should consider factors such as “the presence or

27 absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by

1 amendment.” Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

2 BHS asserts that should I grant leave to amend, it would add the following facts to its

3 amended complaint:

4 • The Transition of O’Hagan Meyer LLP: Plaintiff can detail

the abrupt transition in mid-May 2025 where WCQ replaced

5 BHS with O’Hagan Meyer LLP. This transition was the direct

result of the “false intimidation narrative” orchestrated by

6 Judge Hon. Markman.

• Chilling Impact of Threats of Criminal Prosecution: Plaintiff

7 can also detail the telephone conversation that Plaintiff held

with O’Hagan Meyer LLP where O’Hagan Meyer expressed

8 interests (presumably in the interests of WCQ) in filing cross-

complaint against the class members of Mendoza Action but

9 sounded surprise and alarm when the undersigned informed

them of Judge Hon. Markman’s threat of criminal prosecution

10 in case of filing such cross-complaint. Plaintiff is aware that

since then WCQ hasn’t commenced such cross-complaint.

11 • The Pending State Appeal: As evidenced by the records of the

First Appellate District (Case No. A173947), WCQ is

12 currently pursuing an appeal of the Mendoza judgment

through O'Hagan Meyer LLP. Pleading this fact would further

13 clarify that BHS is not seeking to challenge the state-court

judgment here, but is seeking redress for personal, collateral

14 injuries that the state appeal cannot remedy.

• The Specific Impact of the Misconduct Findings: Plaintiff can

15 bolster the allegations with additional testimony from WCQ

officers like Steve Ko, whose declaration confirms that BHS

16 was fired solely because of the “misconduct” findings

incorporated into the Defendant's written orders.

17 • Jurisdictional Detail: Plaintiff can further elaborate on the

holding of Drink Tank (no subject matter jurisdiction when

18 the subject alleged wrongdoing is not prohibited by the subject

statute) and NLRA preemption theories, providing additional

19 factual context to show that Judge Markman’s actions

occurred in the “clear absence of all jurisdiction”.

20 • Now, another attorney in another State case quoted the same

problematic wordings of Defendant to attack the credibility

21 and professionalism of Plaintiff. Please see Dkt. 13 in this

Action, Plaintiff’s Response to OSC Why Case Should Not be

22 Transferred, ecf. p. 3:5-14.

23 Oppo. at 9–10; id. at 9 n.3. These alleged facts do not overcome the hurdles of absolute immunity

24 and the Eleventh Amendment. Because the doctrinal bars would make amendment “futile,”

25 BHS’s request for leave is DENIED. See Moore, 885 F.2d at 538.

26 CONCLUSION

27 For the foregoing reasons, Judge Markman’s motion to dismiss is GRANTED WITHOUT

1 LEAVE TO AMEND.

2 IT IS SO ORDERED.

3 Dated: April 3, 2026

4

I . Orrick

6 nited States District Judge

7

8

9

10

1]

a 12

13

14

15

16

(17

Z 18

19

20

21

22

23

24

25

26

27

28