Opposition Brief — Melissa Kay Cook, et al., Petitioners v. Cynthia Ann Harding, et al.

No. 17-1487

IN THE

Supreme Court of the United States

MELISSA KAY COOK, Individually and

MELISSA KAY COOK, as Guardian ad litem

of Baby A, Baby B and Baby C,

Petitioners,

vs.

CYNTHIA ANN HARDING, M.P.H., et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JARRETTE & WALMSLEY, LLP

ROBERT R. WALMSLEY

COUNSEL OF RECORD

EMAIL: ROBERT@JARRETTEWALMSLEY.COM

MARLEA F. JARRETTE

PO Box 552

Los Olivos, California 93441

(805) 697-7390

Counsel for Respondent, C.M.

Courtesy of Lawyers Brief Service • Appellate Brief Printers • (213) 613-1013 • (626) 744-2988

-iOBJECTIONS TO QUESTION PRESENTED

Respondent, C.M., objects to the question

presented.

The proffered question incorrectly

characterizes the state proceedings. Petitioners’

(hereinafter “COOK”), contend that the state courts

held that they lacked jurisdiction to decide federal

questions and refused that undertaking. This is

false. The record specifically reflects that the

California state Court of Appeal, Second District,

Division One, expressly and succinctly considered

each and every federal constitutional issue raised

by COOK. In applying issue preclusion, the federal

Ninth Circuit Court of Appeal also found that the

state court had thoroughly considered and

discussed each of COOK’s federal constitutional

claims. Furthermore, COOK’s presented question

also inaccurately contends that the state courts

failed and refused to allow for the presentation of

relevant evidence. On the contrary, the state trial

court conducted a hearing, allowed examination of

witnesses, and received documentary evidence.

COOK’s objection is not that the court did not allow

the presentation of evidence. Their issue is that

the trial court perceived the additional evidence

COOK sought to introduce was not pertinent. The

federal Ninth Circuit Court of Appeals similarly

observed that many of COOK’s factual claims

against C.M. were “legally irrelevant.” (Pet.: 15a16a.) The Court added that COOK’s assertions

were deeply disparaging allegations about C.M’s

ability, intellect, and socioeconomic status” and

“are wholly inappropriate.” Id.

-iiTABLE OF CONTENTS

OBJECTIONS TO QUESTION PRESENTED.. i

TABLE OF CONTENTS…….…………………… ii

TABLE OF AUTHORITIES….………………….. iii

OPINIONS BELOW

1

JURISDICTION

1

I.

STATEMENT OF ACCURATE AND

RELVENT FACTS………………………….. 2

II.

STATEMENT OF ACCURATE AND

RELEVANT PROCEDURAL HISTORY… 5

III. ARGUMENT………….……………………… 15

A. THE PETITION FAILS TO

SATISFY RUDIMENTARY

GROUNDS FOR GRANTING

CERTIORARI………………………….. 15

B.

1.

Under State Law, Preclusion

Was Required….………………….. 16

2.

Each of COOK’s Federal

Constitutional Claims Were

Addressed By The State Courts… 17

3.

COOK’s Claim That

Unconsidered Facts Prevented

Application Of Issue Preclusion,

Is Baseless………………………… 18

4.

The U.S. Ninth Circuit Court of

Appeal’s Application of Issue

Preclusion Is Consistent With

Applicable Cases And Public

Policies……………………………... 20

CONCLUSION….…………………….. 22

-iiiTABLE OF AUTHORITIES

Cases:

Page(s)

In Allen v. McCurry

449 U.S. 90, S.Ct. 411, 66 L.Ed.2d 308

(1980)…...................................................... 16

C.M. v. M.C.

7 Cal.App.5th 1188, 213 Cal.Rptr.3d 351

(2017).......................................................... 1

Cook v. Harding

879 F.3d 1035 (2018)………….…………… 1

In re Marriage of Buzzanca

61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280,

(1998)………………………………………… 3,6,10

Johnson v. Calvert

5 Cal.4th 84, 851 P.2d 776, 19

Cal.Rptr.2d 494 (1993)...…….……………. Passim

People v. Sims

32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d

321 (1982)……………..................…………. 17

ReadyLink Healthcare, Inc. v. State

Comp. Ins. Fund

754 F.3d 754 (9th Cir. 2014)……………… 14,15

Smith v. Organization of Foster Families

For Equality and Reform

431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d

14 (1977)……………………………………... 20

-ivSprint Communications Inc. v. Jacobs

134 S.Ct. 584, 187 L.Ed.2d 505 (2013)….. 14

Taylor v. Sturgell

553 U.S. 880, 128 S.Ct. 2161, 171

L.Ed.2d 155 (2008)…………………………. 14

Younger v. Harris

401 U.S. 37, 91 S.Ct.746, 27 L.Ed.2d 669

(1971)………………………………………… 9,22

Statutes and Other Authorities:

U.S. Const., Article IV, Section 1………… 21

28 U.S.C.A. § 1738………………..……….. 21

California Family Code §7962…...………. passim

1

OPINIONS BELOW

The opinion of the United States Ninth

Circuit Court of Appeals (Pet.: 1a-16a) is reported

at Cook v. Harding 879 F.3d 1035 (2017). The

opinion of the district court granting defendants’

motions to dismiss COOK’s federal action (Pet.:17a49a) is reported at 190 F.Supp.3d 921 (2016).

The opinion of the California Court of

Appeal, Second District, Division One, (Pet.: 50a88a) is reported at C.M. v. M.C. 7 Cal.App.5th

1188, 213 Cal.Rptr.3d 351 (2017).

JURISDICTION

The judgment of the court of appeals was

entered on January 12, 2018. The petition for a

writ of certiorari was filed April, 12, 2018 and

placed on the Court’s docket April 30, 2018. The

jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

2

I.

STATEMENT OF ACCURATE AND

RELVENT FACTS

C.M. objects to Petitioners’ (“COOK”) factual

presentation.

It is inaccurate and omits all

unfavorable evidence. COOK’s biased presentation

calls into question the entirety of their petition. An

accurate factual recitation is as follows:

In 2014, COOK responded to a solicitation by

C.M’s., attorney and Surrogacy International Inc.,

seeking a gestational surrogate for their client,

C.M. 3ER:314:¶44. COOK offered to serve as a

gestational carrier for C.M. 3ER:314:¶44.1 COOK

represented that she had been a surrogate before

and was aware of the various medical procedures

and risks. 2CSER:409¶ 5.01.

COOK also

represented she had previously been pregnant five

times. Id.

After making contact with C.M. COOK

entered into a gestational carrier agreement

(hereinafter “contract”) with C.M. in the State of

California. 3ER:302:305-306:¶12: ¶19-21. COOK

was represented by an attorney chosen by her but

C.M. was contractually obligated to pay the legal

fees. 3ER:325:¶85; 2CSER:469-470¶30.01; Docket

1 “ER” refers to Petitioners’ excerpt of record filed in the

U.S. Ninth Circuit Court of Appeal of which there are 4

volumes.

The volume number precedes the “ER”

designation. “CSER” refers to the excerpts of record

filed in the U.S. Ninth Circuit Court of Appeal by the

Los Angeles County defendants. There are 2 volumes.

The numerical volume precedes the “CSER” designation.

3

#46-1; 1CSER:155. COOK had not met C.M. before

entering into the contract nor spoken with him on

the telephone.

3ER:315:¶45.

The two

communicated by email. COOK was aware that

C.M. was a single male who lived in Georgia with

his parents, (3ER:315:¶46) was deaf (3ER:315:¶47),

and was employed as a postal worker.

3ER:315:¶48. COOK alleged she was only later

informed that a home study was not performed on

C.M., nor was his living accommodation assessed.

3ER:315-316:¶49. COOK never alleged she was

earlier informed to the contrary.

The contract between C.M. and COOK

contemplated embryos being transferred to COOK’s

uterus. The embryos were created using C.M.’s

sperm with eggs/ova that had been anonymously

donated to C.M. for his exclusive use. 3ER:316:¶50;

2CSER:407-408¶2.01; Docket #46-1.

In entering into the contract COOK

represented to C.M. that she did not, and would

not, have any parental rights as to any child or

children conceived from the embryo transfer

procedure. 3ER:316-317:¶51; 2CSER:409-410¶5.02;

Docket #46-1. COOK also agreed C.M. would be

the exclusive parent of any child born through the

parties undertaking. 2CSER: 330.

C.M. and

COOK also agreed California would have exclusive

jurisdiction over the matter (2CSER:477, ¶42.01),

and that the parties’ parental rights were to be

governed by California laws, specifically California

Family Code, § 7962, Johnson v. Calvert [5 Cal.4th

84, 19 Cal.Rptr.2d 494], 851 P.2d 776 (Cal. 1993)

and In re Marriage of Buzzanca, [61 Cal.App.4th

4

1410, 72 Cal.Rptr.2d 280, (1998). 2CSER:406407¶9-13 and 477: ¶43.01; 3ER:316:¶50.

After the parties executed the contract

C.M.’s viable embryos were transferred to COOK’s

uterus. 3ER:320:¶64. Before the embryo transfer,

COOK underwent a series of medical treatments

involving hormone injections, taking prescribed

medications, and undergoing medical exams.

3ER:317-319:¶54-¶62. COOK represented that as

a result of her prior surrogacy and pregnancies, she

knew about the medical procedures and risks

involved. 2CSER:409¶5.01. Following the embryo

transfer, COOK’s pregnancy was confirmed on

August 31, 2015. 3ER:320¶65. COOK averred that

C.M. is the genetic father of the Children and was

also listed as the Intended Parent in the contract

between her and C.M. 3ER:305¶19.

Following the embryo transfer, COOK

learned she was pregnant with triplets.

3ER:302¶12. Roughly a month after pregnancy

was confirmed C.M. first mentioned the prospect of

reducing the number of fetuses. 3ER:320-321:¶68.

COOK alleged that thereafter C.M. began to

express concerns with the pregnancy costs

associated with a pregnancy of triplets.

3ER:321:lines 1-3]. The fertility clinic wrote to

C.M. that the pregnancy is a high risk pregnancy

and that more frequent medical visits were

necessary. 3ER:321:¶69.

C.M. wrote to COOK expressing that he

wanted COOK to reduce the pregnancy by one.

3ER:322-323:¶77. COOK responded, telling C.M.

5

she would not reduce the pregnancy. 3ER:323:¶78.

COOK alleged that C.M. expressed that he wanted

reduction because of his inability to pay for all of

the children, 3ER:323:¶79, and also that reduction

was due to health risk to COOK and the children.

Id. C.M. expressed that his request for reduction

was multi-faceted.

He had consulted with

physicians and was informed and understood that

the risk to the children, as a whole and

individually, was substantial and significant and

included permanent disabilities for the children,

inclusive of but not limited to, brain damage, major

developmental disabilities, permanent physical

disabilities, and the necessity of lifetime aid and

assistance, as well as risks to COOK. 1CSER:89.

COOK told C.M. in November 2016 that she would

love to raise one of the children. 3ER:324:¶82.

COOK gave birth to the three children on

February 22, 2016. 3ER:298¶:2. Based on the

existing judgment establishing that COOK was not

a parent and had no parental rights, the children

were released to C.M., 3ER:301:¶8, and have been

raised by C.M. since.

II.

STATEMENT OF ACCURATE

RELEVANT PROCEDURAL HISTORY

AND

As with COOK’s factual presentation, their

procedural presentation is also fraught with

inaccuracies. Respondent, C.M. is compelled to

provide this court with a correct procedural

portrayal.

6

On January 4, 2016, COOK first initiated a

civil action on her behalf, and as the selfdesignated guardian ad litem of the unborn

children, in the Los Angeles Superior Court. In

that action she sought to be declared the parent of

at least one of the children and sought to enjoin

C.M. from pursuing his parental rights. 3ER:299300:¶5; 1CSER:11-56/58-59; Docket #84.

Her

action was dismissed without prejudice because she

filed it in the wrong court and she also failed to

comply with procedural requirements for asking for

her appointment as the guardian ad litem before

filing. 2CSER:488-489.

On January 6, 2016 C.M.’s petition to

establish and confirm his parental relationship as

to all three children was filed in the Los Angeles

Superior Court having jurisdiction over surrogacy

matters. 2CSER:229-260; Docket #46-4. C.M.’s

action was brought pursuant to California Family

Code §7962 and existing case law, Johnson v.

Calvert supra, 5 Cal.App.4th 84; In Re Marriage of

Buzzanca 61 Cal. App.4th 1410 (1998). Id. Based

on the parties’ contract and conduct thereby, C.M.

also sought an order that COOK was not a parent.

Id.; 3ER:299-300:¶5; 2CSER:229-260.

Five days before the scheduled hearing in

C.M.’s parentage action, COOK filed an Answer

and Counter Claim in the state action. 3ER:299300:¶5. She sought custody alleging C.M. would

not and could not accept legal responsibility of the

three children because he was deaf and a single

male. 3ER:300:¶6. COOK asked the court to find

7

that California Family Code

unconstitutional. 2CSER:277:¶6.

§7962

was

On February 2, 2016, COOK filed her initial

complaint

in

the

federal

district

court.

3ER:420/Docket #1. That action was not served on

C.M. nor was he a named party. Id. In this action,

C.M. also sought her appointment as the unborn

children’s guardian ad litem without ever serving

C.M. with the action or her application. See C.M.’s

answering brief, filed 03/10/2017 in the U.S. Ninth

Circuit Court of Appeal, ID: 10352356, DktEntry:

34, p. 5, fn. 3; see also U.S. District Court, Docket #

9, filed 02/10/16.

Seven days later C.M.’s state action

proceeded. 2CSER:253-254. Contrary to COOK’s

assertions, this was a contested hearing before the

state trial court where documentary evidence was

presented and received into evidence, notably,

correspondence from COOK’s former counsel,

emails, the declaration of C.M., 4ER 528-541, 2

CSER:231, item 2, declarations of C.M.’s attorney

and the fertility specialist, 2CSER:231, items 6 & 7,

a criminal background check on C.M., earlier

lodged with the court, CSER:231, item 3), and a

copy of the parties’ surrogacy contract. CSER:231,

item 2.

COOK was present and testified,

1CSER:152-153. Her former attorney also testified.

2CSER:149-199, Id.

At the conclusion of the

hearing the Court found COOK had knowingly and

voluntarily signed the gestational agreement and

was

represented

by

independent

counsel.

1CSER:209,211-213.

The court denied all of

COOK’s counter claims.

COOK’s efforts to

8

introduce evidence as to C.M.’s parental fitness

were determined not to be relevant at that stage of

the action – which focused on establishing

parentage. 3 ER 412 , 1CSER 199 (transcript of

hearing, 2/9/17; see also (Pet.: 78a-79a, 83a, citing

Calvert, supra, 5 Cal.4th at pp. 93–94, fn. 10, 19

Cal.Rptr.2d 494, 851 P.2d 776.) The trial court

observed that “I’m happy to hear your argument

but if you start moving into areas that are not

covered under 7962, for example, what is going to

happen to these children, once they are handed

over to [C.M.] that’s none of my business.” 3ER:412

[clarification added]. Nonetheless, during the

hearing the court asked if COOK wished to offer

any further evidence and COOK’s attorney

responded, NO. 1CSER:199, transcript of 2/9/16

hearing. The Court then found that C.M. was the

sole and exclusive parent of the children and that

COOK had no parental rights.

3ER:301¶7-8;

1CSER:211-218; 2CSER:241-253. COOK appealed

this judgment. (Pet.: 50a, 59a.)

After the state court ruling COOK filed a

first amended complaint in her federal action,

adding new defendants and allegations to that

action. 3ER:421/Docket #14. She filed a second

amended complaint (“SAC”) on March 11, 2016.

3ER:296-380,423/Docket #25. The SAC, for the first

time, added C.M. and other defendants.

3ER:423/Docket #25.

On March 30, 2016, COOK filed a Petition

for Writ of Supersedes with the California Court of

Appeal and within her existing state court appeal.

2CSER:263-319/Docket #46-4.

9

COOK’s writ sought, among other relief, that

she be declared a parent and to enjoin C.M. from

leaving California with his children. COOK also

sought a stay of the Los Angeles Superior Court

Judgment. Id. A temporary stay of the superior

court order was issued which temporarily precluded

C.M. from leaving California with his children.

2CSER:322. The writ was subsequently denied.

(Pet.: 59a, fn. 3.)

During the pendency of the state appeal,

each of the defendants in the federal action filed

motions to dismiss COOK’s federal case. 3ER:425428/Docket #44,46,54,60. The motions were based

on various grounds, including: 1) COOK’s lack of

standing; 2) Younger-Harris abstention; 3) Booker

– Feldman abstention; (4) Burford abstention; 5)

Colorado River abstention; and 6) Pullman

abstention. The motions were heard on May 23,

2016 and on June 6, 2016 the Honorable Otis D.

Wright, II granted the motions to dismiss, based on

Younger v. Harris 401 U.S. 37, 91 S.Ct.746, 27

L.Ed.2d 669 (1971). (Pet.: 35a-49a.) The other

grounds for which relief was sought were not

addressed.

(Id.).

The court did not address

COOK’s standing. (Id.) On July 5, 2016 COOK filed

a notice of appeal from the District Court’s order.

1ER:2/Docket #93.

On January 26, 2017 the California Court of

Appeal ruled on COOK’s state appeal. (Pet.: 50a88a.) The Court of Appeal heard, considered, and

rejected each of COOK’s federal constitutional

10

claims raised on her behalf, as well as the children.

(Pet.: 71a-88a.) Specifically, the court observed:

M.C. makes various constitutional

arguments challenging the procedure

for

establishing

a

parent-child

relationship under section 7962 and

the

legitimacy

of

surrogacy

arrangements

generally.

It

is

important to note at the outset that

our Supreme Court has already

rejected constitutional challenges to

surrogacy agreements and ruled that

such agreements are consistent with

the public policy of California. (See

Calvert, supra, 5 Cal.4th at pp. 95, 98–

100, 19 Cal.Rptr.2d 494, 851 P.2d

776.) Indeed, the Legislature’s stated

intent in enacting section 7962 was to

codify the decisions in Calvert and

Buzzanca, supra, 61 Cal.App.4th 1410,

72 Cal.Rptr.2d 280. (See Assembly

Analysis, supra, at p. 2 [“Case law in

California makes clear that the

intended parents are the natural

parents and this bill clarifies and

codifies that case law”]; Senate

Analysis, supra, at p. 4 [“California

case law establishes that even without

a genetic link, the parties who

intended to bring a child into the

world are the child’s legal parents

[citing Calvert and Buzzanca]. This

bill, with respect to surrogacy

agreements, seeks to codify and clarify

11

that case law by requiring parties to

enter into surrogacy agreements, as

specified, prior to the commencement

of any medical treatment related to

the surrogacy arrangement”].) (Pet.:

71a-72a.)

The State court of appeal went on to reject

COOK’s argument that the California Supreme

Court in Calvert only applied to a contest between

two women. “M.C.’s argument misses the broader

implication of the holding in Calvert. The court

held that it could give effect to the parties’

intentions for the parentage of the child as

expressed in their surrogacy contract because the

agreement was “not, on its face, inconsistent with

public policy.” Calvert, supra, 5 Cal.4th at p. 95, 19

Cal.Rptr.2d 494, 851 P.2d 776.

COOK’s argument that section 7962 denied

her, and the children, procedural due process was

also fully considered and addressed. The state

Court of Appeal observed the trial court fully

complied with the nature and scope of the hearing

and provided COOK an opportunity to be heard.

(Pet.: 78a-79a.) The Court observed that COOK’s

counterclaim did not challenge whether the parties

Contract fulfilled the requirements of section 7962

or that the statue was complied with. Instead it

was a broad based attack as to the legitimacy of

surrogacy contracts in general. (Pet.: 79a., see also,

79a, fn.11.) To the extent COOK argued more was

needed, the Court observed that COOK’s further

procedural due process claims are largely

substantive due process contentions. (Pet.: 79a-

12

80a.) The court then proceeded to consider each

substantive due process claim raised by COOK.

(Pet.: 80a-87a.)

Among the many additional reasons in

rejecting COOK’s substantive due process

arguments, was the state court’s observation that

COOK had personally elected to assist C.M. in

having a child knowing she was not genetically the

mother; that COOK had personally acknowledged

she would have no parental rights and was entitled

to contractually agree as she did. “M.C.’s argument

fails in light of her own agreement surrendering

any right to form a parent-child relationship with

the Children. Her argument amounts to a claim

that she either: (1) had no right to make such a

promise; or (2) was permitted to later change her

mind about that promise based upon the best

interests of the Children.” (Pet.: 80a.) That

argument, the court observed, runs afoul of the

public policy concerns expressed in Calvert. More

important, the court observed that COOK’s claims

run afoul of the Calvert court’s observation that

“[t]he argument that a woman cannot knowingly

and intelligently agree to gestate and deliver a

baby for intending parents carries overtones of the

reasoning that for centuries prevented women from

attaining equal economic rights and professional

status under the law.” (Pet.: 81a, citing Calvert, 5

Cal.4th at pp. 97, 19 Cal.Rptr.2d 494, 851 P.2d 776.)

Relevant to COOK’s arguments that she, and

the children, were denied a hearing as to C.M.’s

fitness, the court observed that was not the focus of

the trial court proceeding. That proceeding, held

13

pursuant to Family Code § 7962, was for the

purpose of establishing C.M.’s parentage and that

COOK had no parental rights. The Court of Appeal

went on to explain that COOK confuses the issue of

establishing parentage with custody. The two are

not synonymous. “The determination of parentage

is separate from the question of custody.” (Pet.:

81a, 83a, citing Calvert, supra, 5 Cal.4th at pp. 93–

94, fn. 10, 19 Cal.Rptr.2d 494, 851 P.2d 776.)

“Whether a particular custodial arrangement is

harmful to a child is a subject for the state’s

dependency laws, not for the law governing

surrogacy contracts.” (Pet.: 83a.)

The State Court of Appeal affirmed the

California Superior Court’s judgment. (Pet.: 88a.)

On March 9, 2017, COOK filed a Petition for review

in the California Supreme Court, Case No.

S240517, seeking review of the Court of Appeal

decision. (Pet.: 88a.) The state Supreme Court

denied the petition on April 12, 2017. (Pet.: 88a,

see also DKtEntry: 57.)

COOK then filed a

Petition for Writ of Certiorari with this court

seeking review of the state court decisions,

Supreme Court Case No. 17-129. This Court

denied the Writ on October 2, 2017. Oct. 2, 2017

entry, case No. 17-129.

In an opinion issued January 12, 2018, the

United States Ninth Circuit Court of Appeal

affirmed the dismissal of COOK’s federal action on

the grounds of issue preclusion, in contrast to the

district court’s dismissal based on Younger

abstention. (Pet.: 1a-16a.)

14

The U.S. Ninth Circuit Court of Appeal

observed that abstention had earlier been extended

to incorporate state family law matters but that

more recent applications, as expressed in opinions

of this Court and the Ninth Circuit Court of

Appeal, had limited abstention to a narrower

category of circumstances. “Abstention in civil

cases “is appropriate only when the state

proceedings: (1) are ongoing, (2) are quasi-criminal

enforcement actions or involve a state’s interest in

enforcing the orders and judgments of its courts, (3)

implicate an important state interest, and (4) allow

litigants to raise federal challenges.” Id. 1038,

citing ReadyLink Healthcare, Inc. v. State Comp.

Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) (citing

Sprint Commc’ns., Inc. v. Jacobs, ––– U.S. ––––,

134 S.Ct. 584, 593–94, 187 L.Ed.2d 505 (2013). The

Court then concluded that the matter did not

satisfy the second prong, where the state

proceedings were quasi-criminal enforcement

actions or involve a state’s interest in enforcing the

orders and judgments of its courts.

Nevertheless, the federal Court of Appeal

affirmed the dismissal based on issue preclusion.

“Issue preclusion ‘bars “successive litigation of an

issue of fact or law actually litigated and resolved

in a valid court determination essential to the prior

judgment,” even if the issue recurs in the context of

a different claim.” (Pet.: 11a-12a, citing ReadyLink,

754 F.3d at 760 and quoting Taylor v. Sturgell, 553

U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155

(2008).)

15

The Ninth Circuit next observed that

throughout the state Court of Appeal’s “lengthy

opinion, the Court of Appeal acknowledged the

limits of Calvert before extending Calvert’s

reasoning to Cook’s claims and completing its own

constitutional analysis. See id. at 367–70. We thus

find that all of Cook’s constitutional claims were

necessarily decided as well as actually litigated.”

(Pet.: 15a.)

Finally, the Ninth Circuit considered and

concluded that preclusion in this case furthers

public policy factors as to whether preclusion would

be consistent with the ‘preservation of the integrity

of the judicial system, promotion of judicial

economy, and protection of litigants from

harassment by vexatious litigation.” (Pet.: 15a,

citing, Readylink, supra, 754 F.3d at 761, and

quoting from Lucido v. Superior Court, supra, 5

Cal. 3d 335, 272 Cal.Rptr. 767, 795 P.2d at 1226

(Cal. 1990).) “Giving the state Court of Appeal’s

opinion preclusive effect is in the interest of both

comity and consistency. See id., 272 Cal.Rptr. 767,

795 P.2d at 1229.” (Pet.: 15a.) Preclusion furthers

each of the public policy factors. Id.

III. ARGUMENT

A.

THE PETITION FAILS TO

SATISFY RUDIMENTARY GROUNDS

FOR GRANTING CERTIORARI

COOK’s petition fails to establish that the

Ninth Circuit’s application of issue preclusion

conflicts with any other decision by a sister court,

16

or decided an important federal issue in a way that

conflicts with a decision by a state court of last

resort; or has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for an

exercise of this Court's supervisory power. Fed.

Rules of Court, rule 10 (a). It also fails to

demonstrate why issue preclusion was contrary to

public policies or how granting certiorari in this

matter would resolve a significant conflict in law or

society.

1.

Under State Law, Preclusion

Was Required.

The Ninth Circuit was required to apply

state law in the issue preclusion analysis. “It is

now settled that a federal court must give to a

state-court judgment the same preclusive effect as

would be given that judgment under the law of the

State in which the judgment was rendered.” In

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66

L.Ed.2d 308 (1980), this Court said: “Indeed,

though the federal courts may look to the common

law or to the policies supporting res judicata and

collateral estoppel in assessing the preclusive effect

of decisions of other federal courts, Congress has

specifically required all federal courts to give

preclusive effect to state-court judgments whenever

the courts of the State from which the judgments

emerged would do so....” Id., at 96, 101 S.Ct., at

415. Issue preclusion is an extension of the full

faith and credit clause.

17

For purposes of issue preclusion, an issue is

actually litigated “[w]hen [it] is properly raised, by

the pleadings or otherwise, and is submitted for

determination, and is determined.” People v. Sims,

32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, 331

(1982).

COOK has not cited a single case,

California or otherwise, which reflects any conflict

with this fundamental principle. This principle is

exactly what the Ninth Circuit applied. (Pet.: 13a.)

The court observed:

Cook’s

position

is

that

her

constitutional claims have never been

directly addressed and decided. This

is baseless in light of the Court of

Appeal’s thorough and well-reasoned

opinion, which devotes over eight

pages to addressing each of her

constitutional challenges in turn. See

C.M., 213 Cal.Rptr.3d at 363–70. Id.

at 1041.

2.

Each of COOK’s Federal

Constitutional Claims Were Addressed

By The State Courts.

Other than generalizations, nowhere does

COOK demonstrate a single constitutional

contention that she raised in the federal action that

was not addressed by the state courts. She claimed

the state proceedings denied her procedural due

process. This was addressed by the trial court in

conducting a hearing and further addressed by the

state court of appeal. (Pet.: 57a-59a, 64a-66a, 78a-

18

79a.) COOK then argued that Family Code, 7962

and the trial court denied her substantive due

process. Again, this was addressed at length by the

state Court of Appeal, culminating in the court’s

conclusion that “[we therefore conclude that that

the Agreement did not violate the constitutional

rights of M.C. or the Children.” (Pet.: 87a.) COOK

further argued section 7962 denied the children

procedural and substantive due process. Again,

these were expressly considered and addressed by

the state Court of Appeal. (Pet.: 80a-85a.) The

Court specifically addressed each and every

procedural and substantive due process, including

Equal Protection, claims that were raised. (Id. at

80a-85a.)

3.

COOK’s Claim That Unconsidered

Facts Prevented Application Of Issue

Preclusion, Is Baseless.

COOK provides an asserted laundry list of

facts that she claims the state courts may not have

considered in rendering judgment and in the Court

of Appeal affirming that judgment. COOK argues

that her factual contentions, such as C.M.’s

parental fitness, were pertinent but not litigated

with respect to terminating her parental rights.

Thus, she claims, preclusion would not apply.

(Pet.: 22-25.) The facts she raises have no bearing

or relevance to the parentage determination and

her argument is premised on a baseless quantum

leap contention that she is a parent. As a matter

of California law, COOK had no parental rights.

Family Code, 7962, Johnson v. Calvert supra, 5

Cal.4th at p. 97, 19 Cal.Rptr.2d 494, 851 P.2d 776.

19

COOK had contractually agreed she had no

parental rights. In the constitutional analysis, the

California Court of Appeal observed:

a surrogate can permissibly contract

to surrender whatever parental rights

she has. The court held that the

surrogacy contract in that case was

consistent with public policy. The

court rejected the argument that “a

woman

cannot

knowingly

and

intelligently agree to gestate and

deliver a baby for intending parents”

as antiquated and dismissive of a

woman’s “equal economic rights.”

(Calvert, supra, 5 Cal.4th at p. 97, 19

Cal.Rptr.2d 494, 851 P.2d 776.) Here,

as in Calvert, there is no suggestion

that M.C., who had children of her

own and had previously served as a

surrogate, “lacked the intellectual

wherewithal

or

life

experience

necessary to make an informed

decision to enter into the surrogacy

contract.” (Pet.: 86a, citing Calvert, 5

Cal.4th at 97, 19 Cal.Rptr.2d 494, 851

P.2d 776.)

Furthermore, COOK’s assertions as to how

much money C.M. made each year is not

determinative whether he is a parent nor does it

give rise to COOK suddenly having parental rights;

whether C.M. is deaf has no bearing on his

parentage and does not confer parentage on COOK;

whether C.M.’s parent(s) live with him is

20

immaterial as to whether C.M. is the sole and

exclusive parent of the triplets.

The day such

claims raised by COOK become determinative of

parentage will be the day of an abhorrent

totalitarian government dictating which race,

gender, or the socioeconomics of individuals, may

bear children. A posture not dissimilar to what

COOK is advocating.

COOK’s factual contention that her

purported bond with the children during pregnancy

gave rise to a parental relation deserving of

constitutional protection sufficient to deprive C.M.

of his constitutional right of parentage is equally

baseless. As with due process claims of a foster

parent who has formed a parent-child bond through

their care of a child over a substantial period,

“[w]hatever liberty interest might otherwise exist

in the foster family as an institution, that interest

must be substantially attenuated where the

proposed removal from the foster family is to return

the child to his natural parents.” Smith v.

Organization of Foster Families For Equality and

Reform, 431 U.S. 816, 847, 97 S.Ct. 2094, 53

L.Ed.2d 14 (1977).

4.

The U.S. Ninth Circuit Court of

Appeal’s Application of Issue Preclusion

Is Consistent With Applicable Cases

And Public Policies.

Discussed above, The Ninth Circuit Court of

Appeal applied the correct law to issue preclusion

and its application of issue preclusion is simply not

at odds with any state or appellate decisions.

21

COOK has not shown otherwise. COOK and the

children had a full and fair opportunity, and

availed themselves of the same, to litigate the

relevant legal issues raised.

Finally,

public

policy

considerations

compelled application of issue preclusion. COOK

has litigated this case beyond the pale. She has

taken this case through the entire state court

system and then to this court. Having failed in

those endeavors, she pursued all possible avenues

through the federal system. Each court along the

way denied her claims and her requested relief.

Failure to stop COOK at this point would entirely

undermine the integrity of the judicial system. One

must recognize that from a legal and equitable

point, COOK had expressly agreed, under penalty

of perjury, to the California state Court having

exclusive jurisdiction over the matter, that Family

Code § 7962 would apply and govern the matter,

and to a judgment being issued declaring C.M. the

sole and exclusive parent of the triplets and also

declaring

COOK

was

not

a

parent.

2CSER:408¶2.01, 409,¶5.02, 444,¶9.01, 478,¶43.02.

To not put a stop to COOK now would simply

promote more endless vexatious litigation by

COOK through her constant harassment. The

Ninth Circuit saw what COOK was doing; her

“legally irrelevant and deeply disparaging

allegations about C.M’s ability, intellect, and

socioeconomic status throughout her pleadings are

wholly inappropriate.” (Pet.: 15a-16a.) Moreover,

application of the Full Faith and Credit (Article IV,

Section 1, of the U.S. Constitution Clause and

implementing provision -- 28 U.S.C.A. § 1738) and

22

fundamental principles of comity required issue

preclusion. “[T]he notion of “comity,” that is, a

proper respect for state functions, a recognition of

the fact that the entire country is made up of a

Union of separate state governments, and a

continuance of the belief that the National

Government will fare best if the States and their

institutions are left free to perform their separate

functions in their separate ways.” Younger v.

Harris, 401 U.S. 37, 41, 54, 91 S.Ct. 746, 27

L.Ed.2d 669, (1971).

B.

CONCLUSION

The Petition for Writ of Certiorari should be

denied.

Dated: May 30, 2018

Respectfully Submitted,

JARRETTE & WALMSLEY, LLP

/s/ Robert R. Walmsley

ROBERT R. WALMSLEY

Attorney for Respondent, C.M.