Petition for Writ of Certiorari — Cyrus Mark Sanai, Petitioner v. Melanie J. Lawrence, et al.

Supreme Court briefSep 16, 2024

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FILED

SEP 1 6 2024

In The

Supreme Court of the United States

Sm^l^,|FCOUPiTlflgj<J

CYRUS MARK SANAI,

Petitioner,

MELANIE LAWRENCE, et. al.

Respondents,

CYRUS MARK SANAI,

Petitioner,

LEONDRA KRUGER, et. al.

Respondents,

CYRUS MARK SANAI,

Petitioner,

GEORGE CARDONA, et. al.

Respondents

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 21-15771 (sub nom Roshan v. Lawrence)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Cyrus Sanai

9440 Santa Monica Blvd #301

Beverly Hills CA 90210

310-717-9840

received

SEP 2 0 202^

QUESTIONS PRESENTED

Petitioner Cyrus Sanai presents the following

questions:

1. Does the endorsement by the Ninth Circuit

Courts of Appeals (among others) to raising Younger

abstention sua sponte at the District Court or Court

of Appeals violate the party presentation principle

and is thus improper?

2. Did the Ninth Circuit Court of Appeals err

when it found that Younger abstention applied

without addressing the additional requirement of

determining whether the California attorney

discipline proceedings fall into one of the NOPSI

categories, given that after this Court of Appeals

found that California State Bar attorney discipline

proceedings meet the Middlesex factors in Hirsh v.

Justices of Supreme Ct. of Cal., 67 F.3d 708, 712 (9th

Cir. 1995) (per curiam) (citing Middlesex Cnty. Ethics

Comm. u. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982)), and so are protected by Younger abstention,

the California Supreme Court held that such

proceedings are not civil enforcement proceedings nor

criminal proceedings, thus avoiding the California

Constitution’s requirement that

the California

Supreme Court hear oral argument on all civil and

criminal cases before it? See In re Rose, 22 Cal.4th

430, 440 (2000).

3. Did the Court of Appeals err in holding that

the Younger abstention requirement of a fair

opportunity to raise federal claims is ignored if the

federal court does not think the federal constitutional

argument is meritorious on a pre-emptive basis?

Sanai also joins in the accompanying petition for a

writ of certiorari from the same decision challenged

by Peyman Roshan presenting the following

questions:

4. At what point or points in time should federal

courts analyze the factors for application of Younger

abstention? There are at least six views expressed in

the case law, five of which are present in Ninth

Circuit case law; these six views are that the federal

courts:

a. Only look at the time the complaint is filed, a

view set out in the Ninth Circuit’s en banc

authority and many other cases.

b. Look at the time the complaint is filed and

perform a second check, as accepted in some

Ninth Circuit case law, the panel in this

appeal, and this Court in Hawaii Housing

Authority v. Midkiff, 467 U.S. 229, 238 (1984).

c. Look at the state proceedings at the time of

the district court hearing and separately upon

appellate review, as the majority held in Duke

v. Gastelo, 64 F.4th 1088, 1096 (9th Cir.

2023).

Ill

d. Look at matters as the case progresses, in the

same way constitutional standing and

mootness are evaluated, which is the position

of the Appellants, the Eighth Circuit, the

Tenth Circuit, and arguably this Court in

Middlesex, supra.

e. Look at the time the complaint is filed and

matters before, as advocated by Judge

Bumatay in his dissent in Duke, infra, and

held by the Fourth Circuit.

■?

f. Look at the situation upon remand from the

Court of Appeal, as the Ninth Circuit panel

decided in the unpublished decision Big Sky

Scientific LLC, v. Bennetts, Case No. 19-35138

(9th Cir. Sept. 4, 2019).

5. Given that Younger abstention’s application to

civil cases was premised on the availability of

Supreme Court review of allegedly unconstitutional

statutes which has since been eliminated and a view

that 42 U.S.C. §1983 does not guarantee a federal

forum for constitutional claims against state action

that has now been rejected, should Younger

abstention’s application to civil cases be eliminated

on grounds that it violates equal protection and

access to the federal Courts?

PARTIES TO THE CASE

This petition is in respect of four federal actions

with two different plaintiffs and two different sets of

Defendants. The four actions were consolidated for

hearing and decision, though they were litigated and

briefed separately.

The plaintiff appellant and petitioner in this

petition is CYRUS SANAI, an individual. It

addresses the following appeals.

Sanai v. Lawrence, Ninth Circuit Docket No. 2256215, Central District of California Case No. 2:21cv-07745-JFW-KES, the Defendants as to which are

Cynthia Valenzuela, George Cardona, W. Kearse

McGill and Richard Honn, all of whom are employees

of the State Bar of California and sued in their

individual and official capacities.

Sanai v. Kruger, Ninth Circuit Docket No. 2316104, Northern District of California Case No. 23cv-01057-AMO, the defendants as to which the

members of the California Supreme Court in their

individual and official capacities: Leondra Kruger,

Joshua P. Groban, Martin J. Jenkins, Kelli M.

Evans, Carol A. Corrigan, Goodwin H. Lieu, and

Patricia Guerrero, all of whom elected not to appear

after valid service was made for reasons explained

below.

Sanai u. Cardona, Ninth Circuit Docket No. 2315618, Northern District of California Case No. 22cv-01818-JST, the defendants as to which are George

Cardona and Leah Wilson, employees of the State

Bar of California sued in their individual and official

capacities.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS......

TABLE OF AUTHORITIES

vii

PETITION FOR A WRIT OF CERTIORARI

ORDERS BELOW.

BASIS FOR JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS AND RULES...............................

STATEMENT OF THE CASE

Procedural Background................................

1. Overview of Three Complaints..............................

2. Procedural History -Sanai v. Lawrence................

3. Procedural History - Sanai v. Kruger...................

4. Procedural History - Sanai v. Cardona................

5. Procedural History ofSanai I...............................

B. Procedural Background................................

WHY THE PETITION SHOULD BE GRANTED

A. Younger Abstention

B. The Courts of Appeal are Completely Inconsistent on

the Propriety of Raising Younger abstention or other

Abstention Doctrines Sua Sponte and Raising it Sua Sponte

Violates the Party Presentation Principle...................

C. California State Bar Proceedings are Not “Civil

Enforcement Actions.”........................................................

D. The Panel Invented a New Middlesex Factor............

CONCLUSION

APPENDIX A

Memorandum Decision of the Ninth

Circuit Court of Appeals.

APPENDIX B

Dismissal Order in Sanai u. Lawrence.

APPENDIX C

Order Denying Ex Parte Application for

Temporary Restraining Order in Sanai

v. Cardona.

APPENDIX D

Order Denying Motion for Injunction

Pending Appeal in Sanai v. Cardona.

APPENDIX E

Amended Order Dismissing Case in

Sanai v. Kruger.

APPENDIX F

Letter from the California Supreme

Court.

APPENDIX G

Order Denying Petition for Panel

Rehearing.

APPENDIX H

Order denying Motion to Recall Mandate

APPENDIX I

Relevant Statutes and Constitutional

Provisions

Vll

TABLE OF AUTHORITIES

Cases

Arizona v. California 530 U.S. 392 (2000)

Barichello v. McDonald, 98 F.3d 948

(7th Cir. 1996)..........................;................

Bracy v-. Gramley, 520 U.S. 899 (1997).....

32, 33,36

Bracy v. Schomig, 286 F.3d 406 (7th Cir. 2002)..... 33

Columbia Basin Apartment Ass'n v. City of Pasco,

268 F.3d 791 (9th Cir. 2001).................................. 23

Cook v. Harding, 879 F. 3d 1035 (9th Cir. 2018) 26, 27

Doe v. Univ. of Kentucky,

860 F.3d 365 (6th Cir. 2017)................

Edwards v. Balisok, 520 U.S. 641 (1997)

Federal Exp. Corp. u. Tenn. Pub. Serv. Comm'n, 925

F.2d 962 (6th Cir. 1991).......................................... 23

Geddes v. United Fin. Grp., 559 F.2d 557 (9th Cir.

8,37

1977)

Herrera v. City of Palmdale, 918 F.- 3d 1037 (9th Cir

2019)

Hirsh v. Justices of Supreme Ct. of Cal., 67 F.3d 708

(9th Cir. 1995).................................... 25, 27, 29, 34

In Re Jenkins, 14 Cal.5th 493 (Cal. 2023)

In Re Rose, 22 Cal.4th 430 (2000)............. 28, 29,30,31

Jack Farenbaugh & Son v. Belmont Construction,

Inc., 194 Cal. App.3d 1023 (1987)............

Kaufman v. Court of Appeal,

31 Cal.3d 933 (1982)...................................

34,35

Lawrence u. McCarthy,

344 F.3d 467 (5th Cir. 2003).....................

Liteky v. United States 510 U.S. 540 (1994)

Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996) ..23

New Orleans Public Service, Inc. v. Council of New

Orleans, 491 U.S. 350 (1989)

Vlll

O'Neill v. City of Philadelphia,

32 F.3d 785 (3d Cir. 1994)....

Roitz v. Coldwell Banker Residential Brokerage Co.,

62 Cal.App.4th 716 (1998)...................................

Rynearson v. Ferguson,

903 F.3d 920 (9th Cir. 2018)..............................

San Remo Hotel v. San Francisco,

145 F.3d 1095 (9th Cir. 1998)............................

Shannon v. Telco Communications, Inc.,

824 F.2d 150 (1st Cir. 1987)................................

Sprint Communications Inc. v. Jacobs,

571 US 69 (2014)....................................... ..........

State Farm Mutual Automobile Insurance Co. u.

Metcalf, 902 F. Supp. 1216 (D. HI 1995)..........

TeleVideo Systems, Inc. u. Heidenthal,

826 F.2d 915 (9th Cir. 1987).............................. 8,37

U.S. v. Thum, 749 F. 3d 1143, 1147 (9th Cir. 2014).. 15

United States u. Sineneng-Smith, 590 U.S. 371, 140

S. Ct. 1575, 206 L. Ed. 2d 866 (2020)

2,24

Universal Amusement Co. v. Vance, 587 F.2d 159 (5th

Cir. 1978) (en banc)

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ;...35

Winston v. Children & Youth Servs.,

948 F.2d 1380 (3d Cir. 1991)............

Wisconsin Cent. Ltd. v. United States,

585 US 274 (2018)..............................

Statutes

28 U.S.C. §1254(1).......................

42 U.S.C. §1983............................

Cal. Bus. & Prof. Code §6085(b)

Cal. Bus. & Prof. Code 6068(g)..

Cal. Code Civ. Proc. § 170.2(b)...

32, 34

Cal. Code Civ. Proc. §282 (1872)...............................

Other Authorities

Case Note, First Conviction Under New York

Barratry Statute, 11 CATHOLIC LAWYER 250

(Summer 1965).......................................................... 16

Estrada, E. Martin (2005) "Pushing Doctrinal Limits:

The Trend toward Applying Younger Abstention to

Claims for Monetary Damages and Raising

Younger Abstention Sua Sponte on Appeal," North

Dakota Law Review: Vol. 81: No. 3, Article 18 23, 24

•*.

Rules

Fed. R. App. Proc. 4(a)(4)(B)(i)...........

Fed. R. Civ. P. 58(c)(2)(B)....................

Fed. R. Civ. P. 60(b).............................

Rules Proc. of State Bar, rule 5.46(A)

Rules Proc. of State Bar, rule 5.46(C)

Rules Proc. of State Bar, rule 56(C)...

7,9

Constitutional Provisions

U.S. Const., amend. V, § 1...................

U.S. Const., amend. XIV......................

In The

Supreme Court of the United States

CYRUS MARK SANAI,

Petitioner,

MELANIE LAWRENCE, et. al.

Respondents,

CYRUS MARK SANAI,

Petitioner,

LEONDRA KRUGER, et. al.

Respondents,

CYRUS MARK SANAI,

Petitioner,

GEORGE CARDONA, et. al.

Respondents

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 21-15771 (sub nom Roshan v. Lawrence)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

On Petition for a Writ of Certiorari to the Ninth

Circuit Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

ft'

.'Vi.

The lead question presented in this petition is a

question discussed but never decided by this Court

which the lower courts have never resolved: whether

Younger abstention can be raised sua sponte by a

district or appellate court. The case law which

suggests this is proper has been put into doubt by

this Court’s unanimous decision in United States v.

Sineneng-Smith, 590 U.S. 371, 140 S. Ct. 1575, 206

L. Ed. 2d 866 (2020). In this decision this Court for

the first time reversed the Court of Appeals for

raising an issue sua sponte.

Disposing of the cases by raising issues sua

sponte is one of the tools that the Ninth Circuit has

utilized to avoid following the precedent of this Court

with which circuit judges disagree. A second method,

manipulation of the en banc process to avoid

resolving circuit splits but instead attacking

disfavored Supreme Court precedent, has been the

subject of an extraordinary number of dissents from

denial of en banc hearings this year.

Duarte u.

United States, 108 F.4th 786, 788 (9th Cir. 2024)

(Van Dyke, J, diss. from order granting pet. for

rehearing en banc) (“if a panel upholds a party's

Second Amendment rights, it follows automatically

that the case will be taken en banc”).

The third tool used by the Ninth Circuit is anti

precedent. For decades the Ninth Circuit operated

on a consensus that three judge panels were free to

depart from governing precedent if all three agreed

that was the result they wanted. This has been

recognized from time to time; a recent dissent from

rehearing en banc suggests that the consensus may

be breaking down. Malone v. Williams, Ninth Cir.

Docket No. 22-16671, Order Denying Petition for En

Banc Review, August 15, 2024. Bybee, J, diss.

(requesting Supreme Court to summarily reverse

unpublished memorandum opinion and instructing

other appellate courts not to follow it; noting that

refusal to grant en banc review “reflects a quixotic

assessment that litigants and courts will readily

observe that the panel's unpublished decision is so

far afield of clearly established law that it cannot

possibly be read to cast doubt on our precedential

AEDPA decisions.”). Any inference from Judge

Bybee’s dissent that departure from established

precedent is in any way exceptional should be cast

away, as it is the standard operating procedure for

the circuit.

In this case the Circuit panel rewrote the one of

the so-called “Middlesex factors”. Because the Ninth

Circuit’s only precedent conceded that there is no

mechanism for a litigant in California state courts to

disqualify an appellate justice, Sanai had a

dispositive argument against its application in two of

the three actions, Sanai u. Kruger and Sanai u.

Lawrence. The panel simply rewrote the relevant

Middlesex factor to add a merits requirement for

constitutional arguments. App. A at A-8.

This petition, along with the accompanying

petition of Peyman Roshan on the consolidated

appeals, provides a guide on how the courts in the

Ninth Circuit toss away meritorious lawsuits by

creating new rules of law on the fly or sua sponte

raising and deciding issues that have no support

from the opposing side, The Court should either

grant review and remand the case after summarily

reversing the panel on issue 3, or grant the petition

as to all questions presented.

ORDERS BELOW

The orders of the Ninth Circuit Court of Appeals

affirming the District Court and denying the

petitions for rehearing and rehearing en banc are set

forth in Appendices (“App.”) A and G. Certain

relevant orders of the District Court are set out in

Apps. B-E. The California Supreme Court’s letter to

Sanai confirming that there is no post-judgment

proceedings to reopen or challenge an attorney

disciplinary order is attached as App. F.

BASIS FOR JURISDICTION

The Ninth Circuit Court of Appeals issued its

decisions affirming the orders of dismissal of the

District Court on January 30, 2024. App. A. Timely

Petitions for Rehearing and Rehearing en Banc were

denied on April 17, 2024. App. G. Petitioner invokes

this Court’s jurisdiction under 28 U.S.C. §1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS AND RULES

The relevant statutory and constitutional

provisions and judicial rules are set forth in App. H,

and include the Fifth and Fourteenth Amendments

to the United States Constitution U.S. Const.,

amend. XIV, and 42 U.S.C. §1983.

STATEMENT OF THE CASE

Procedural Background

1. Overview of Three Complaints

The Ninth Circuit consolidated three separate

actions challenging two interconnected California

State Bar proceedings. The first State Bar

proceeding was litigated under two separate docket

numbers, 10-0-09221 and 12-0-10457 (“Sanai I), and

was challenged in Sanai u. Lawrence in the Central

District of California, where the defendants were

employees of the State Bar, and Sanai v. Kruger in

the Northern District, where the Defendants were

the sitting justices of the California Supreme Court.

The third lawsuit, Sanai v. Cardona, Northern

District of California Docket No. 23-15618, concerns

the follow up to the disciplinary proceeding to Sanai

I, Docket Nos. SBC-23-0-30221-DGS and SBC-23-N31004-DGS (“Sanai IF). Both Sanai v. Cardona and

Sanai II are still being litigated.

Sanai v. Lawrence and Sanai v. Kruger were

both appeals from judgments of dismissal without

prejudice based on Younger abstention. App. B; App.

E. However, while the State Bar litigated Sanai. v.

Lawrence vigorously, the California Supreme Court

chose to default. The District Court judge in Sanai v.

Kruger sua sponte dismissed the lawsuit without

notice or an opportunity to be heard. App. E.

In Sanai v. Cardona the appeal was from a

denial of a motion for a preliminary injunction. App.

C. Younger abstention was only raised when Sanai

, V-

•

filed a motion to stay pending appeal, again raised

sua sponte by the District Court. App. D.

Because the appeals were from judgments of

dismissal and from preliminary injunction motions as

to which no opposition on the merits had been filed,

the allegations of Sanai must be presumed to be true.

The theories of the case developed over time.

However, in consolidating the case, the Ninth Circuit

panel made no distinction in who alleged what and

when. In addition, because Sanai v. Cardona

resumed after issuance of mandate, Sanai was able

in that case to bring motions which resulted in

further admission by the California State Bar that

California attorney discipline proceedings are not

“civil enforcement actions” that would fall into the

NOPSI category professional discipline has

previously been slotted into for purposes of Younger

abstention. Shortly before filing this petition Sanai

and Roshan filed a joint motion to recall the mandate

raising the new facts, which was denied. See App. H.

Citations to the docket and Excerpts of Record

with respect to an action are to the district court

proceedings in those actions, unless otherwise stated.

Thus in Section 3 below all citations to the Docket

are to the District Court docket in Sanai v. Lawrence.

2. Procedural History Sanai v.

Lawrence

Sanai filed a Complaint, Dkt. 1, and the FAC,

Dkt. 41. On March 21, 2022, the district court

dismissed FAC without prejudice and leave to amend

on grounds of Younger abstention grounds. See Dkt.

80. The court did not enter a separate judgment, and

thus the entry of judgment did not occur until 150

days later on August 18, 2022. Fed. R. Civ. P.

58(c)(2)(B). From March 21, 2022 to August 16, 2023

Sanai filed a succession of post judgment motions

under Fed. R. Civ. P. 60(b) all of which were denied

without analysis. Sanai filed a notice of appeal on

December 21, 2022 that appealed the order of

dismissal (now deemed the entered judgment) of

March 21, 2022 judgment and" all of the post

judgment orders listed above. See Dkt. 178.

Even after judgment was entered, Sanai’s

California State Bar discipline case continued to

progress, so Sanai filed a post-judgment motion for

indicative ruling upon remand to bring all arguments

created or augmented by subsequent events before

the trial court. Dkts. 196-198. The motion was

denied on June 20, 2023, Dkt. 202, and an amended

notice of appeal was filed two days later, Dkt. 203.

On August 16, 2023 Sanai filed his last indicative

Rule 60(b) motion. Dkt. 206-7. This was denied and

Sanai filed an amended notice of appeal, Dkt. 209-10.

The parties extensively litigated the issue of

whether Sanai’s successive Rule 60 motions

exhausted the post-judgment tolling. The motions

panel held that it did not but the hearing panel held

that the Sanai v. Lawrence appeal was only of certain

post-judgment motions, but that this made no

difference because all issues had been raised. App. A

at A-7 fn2.

3. Procedural History Sanai v. Kruger

While proceedings were ongoing before the

California Supreme Court, Sanai filed this action.

The Defendants, despite personal service on their

Clerk’s office and follow-up first class mail service,

did not respond. See Dkt. 17-1 C. Sanai Deck, Dkt.

17-2 Roshan Deck, Dkt. 17-3 M. Sanai Deck Default

was entered by the Clerk. Dkt. 18. Six days after

this lawsuit was filed, on March 15, 2023 Sanai’s

Petition for Review before the Supreme Court of

California was denied. Dkt. 21-7.

Because default was entered against the

Defendants, all allegations relevant to the federal

causes of action (i.e., “well-pleaded” allegations) are

deemed true. TeleVideo Systems, Inc. v. Heidenthal,

826 F.2d 915, 917 (9th Cir. 1987); see also Geddes v.

United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)

(“upon default [,] the factual allegations of the

complaint, except those relating to the amount of

damages, will be taken as true.”). The Complaint

includes allegations of the actual bias of the second

State Bar Court Judge, Cynthia Valenzuela, in

Sanai’s attorney discipline proceedings. See “Docket”

at 1; Complaint Dkt. 1 at 20-21 (alleging State Bar

Court Judge Valenzuela “is in actuality biased

against Sanai and any victim of judge/opposing

counsel (unless the victim was Girardi and his

cabal)”). The District Court Judge in this matter

refused to address an ex parte motion for entry of

default for more than a month. An amended motion

for default was filed on July 10, 2023, followed by an

ex parte motion for preliminary relief, including a

preliminary injunction. Dkt. 32; Dkt. 34. At the end

of July 2024 the District Court Judge still declined to

rule on the merits, but instead sua sponte dismissed

the complaint on Younger abstention grounds on a

facial, i.e., pleading, basis; however, she failed to read

or acknowledge the allegations against Judge

Valenzuela. Dkt. 35. Also, she dismissed the

complaint with prejudice, when Younger requires

dismissal without prejudice. See, e.g. State Farm

Mutual Automobile Insurance Co. v. Metcalf, 902 F.

Supp. 1216, 1220 (D. HI 1995) (“Because Younger

abstention is warranted in this case, the Court

dismisses Plaintiffs complaint without prejudice”).

Three days later Sanai filed a combined Rule

59(e) and 60(b) motion to vacate the judgment and

enter the requested default judgment. Dkt. 37. The

Judge declined to act. On August 14, 2023 Sanai

filed a notice of appeal, Dkt. 39, followed on August

14, 2023, by an ex parte motion for injunction

pending appeal, Dkt. 40. The appeal was not at the

time of filing in effect as to dismissal. Fed. R. App.

Proc. 4(a)(4)(B)(i). It was in effect, however, as to the

denial of preliminary relief, Dkt. 34.

The District Court issued an order denying the

motion for stay pending appeal and granting in part

the motion to alter and amend the judgment, Dkt. 43,

and to render the judgment without prejudice. Dkt.

45. Sanai filed new Rule 60(b) and 59(e) motions

which pointed out the specific legal errors made by

the District Court judge. Unable to refute them but

unwilling to grant Sanai relief, the District Court

denied the motions summarily. Dkt. 52. Sanai filed

an amended notice of appeal. Sanai’s first issue on

appeal challenged whether it was proper to dismiss

Sanai’s complaint sua sponte.

4. Procedural History Sanai v. Cardona

-V

■

On March 23, 2022, Sanai filed a lawsuit against

Defendants. Docket No. 1. The trigger for this

lawsuit was a written threat of a disciplinary

proceeding. The current version of the Complaint is

the Second Amended Complaint, Northern District of

California (“CAND”) Docket No. 77 (“SAC”). The

SAC alleges the following facial constitutional

inadequacies of the California State Bar’s attorney

disciplinary rules and practices.

Sanai was forced by the then-imminent filing of

the disciplinary proceeding to file a motion for a

temporary restraining order and preliminary

injunction. CAND Docket No. 52. After briefing, it

was denied. CAND Docket No. 58.

One of the grounds for denying relief was Judge

Tigar’s view that having not seen the draft

complaint, Sanai had not met his burden to show

that the complaint was inadequate as a matter of due

process. Sanai successfully moved for a motion to

extend the time to file a notice of appeal. CAND

Docket No. 63. He filed a motion for leave to file a

motion for reconsideration and the Notice of Appeal

on April 24, 2023. Docket Nos. 68-69. The motion

was denied on grounds of the automatic stay on

appeal. CAND Docket No. 75.

Sanai then obtained a stipulation to file the

Second Amended Complaint and did so. CAND

Docket Nos. 74, 77.

On June 5, 2023, Sanai filed a motion for

injunction pending appeal and for an indicative

ruling pending appeal that injunctive relief should be

granted. CAND Docket No. 81. Without notice or an

opportunity to be heard, Judge Tigar ruled that

Younger abstention applied to this case; however, he

did not dismiss it as Sanai had requested an

indicative ruling. Sanai filed an amended notice of

appeal on June 9, 2023 so that the earlier events

became part of the appellate record and so this Court

had jurisdiction to address all issues.

5. Procedural History of Sanai I

Sanai v. Lawrence and Sanai u. Kruger both

address Sanai I, the now completed attorney

discipline matter against Sanai that was filed in

2014. Sanai was the subject of an out-of-control

prosecution, in which eight of the nine charges were

dismissed when the California State Bar Office of

Chief Trial Counsel (“OCTC”) rested its case in 2015,

several due to misconduct by the OCTC. In two

different orders of dismissal, the State Bar Court

Hearing Department Judge, Donald Miles, found

that for some of the charges covered by the State

Bar’s Notice of Disciplinary Charges (“NDC”), Sanai

v. Saltz, the trial court judge and opposing

counsel conspired to suborn the testimony of a

Los Angeles County Superior Court clerk regarding a

proof of service, who recanted her prior testimony in

Sanai v. Saltz when subpoenaed to appear before the

State Bar Hearing Department:

a contention by Respondent's

opposing counsel in 2006 that

Respondent, after the Memorandum of

Costs had been filed, had made a

notation on the previously-filed service

list regarding the identity of the

designated agents of those corporate

^ •#

defendants for service of process.

However, it is undisputed that this

notation was made by Respondent with

the knowledge and consent of the

court's clerk, in her presence, and at

her request. This clerk was aware that

Respondent, a party to the action, was

not (and could not be) the person who

had signed the proof of service under

penalty of perjury, and there is no

evidence that Respondent was

claiming to modify the proof of service

or that the clerk believed that

Respondent's subsequent notation in

any way modified the original proof of

service.

The disputed issue at that time

was whether the clerk had merely

requested that Respondent write down

the identity of the designated agents

for service of process or whether she

had asked Respondent to write down

the names of the individuals who had

actually been served. At an ex parte

hearing on May 11, 2006, this clerk

was called to testify regarding that

issue. Prior to her being summoned to

testify in 2006, comments by both the

presiding judge and opposing counsel

made clear that each had discussed

with her the substance of her

anticipated testimony. (Ex. 29, pp. 5-6;

cf. p. 11, line 26. During her

testimony, her answers were equivocal,

including acknowledging on crossexamination that her memory of the

event (which had happened less than

three days before) was poor and that

she did not remember exactly the

reason she had given Respondent for

asking him to write down the names of

the designated agents for service of

process. (Ex. 29, pp. 25-26, 44.)

Dkt. 21-7 Vol VI p.1412 (February 6, 2015 Order at

7); see also Dkt 1, Complaint at 12.

However, Judge Miles, notwithstanding his

finding of Superior Court misconduct, elected to stay

the case rather than allow Sanai to defend. Id.

Also at issue were exculpatory documents that

the OCTC refused to produce from its investigatory

records. The status of a Fourteenth Amendment

right to exculpatory evidence from the State Bar was

admitted by Judge Miles. See Dkt. 21-7 Vol. VI p.

1419. This federal right has been explicitly

incorporated and expanded by the California

• Legislature in 1995 when it passed legislation that

confirms Sanai had the right “[t]o receive any and

all exculpatory evidence from the State Bar after

the initiation of a disciplinary proceeding in State

Bar Court, and thereafter when this evidence is

discovered and available.” Cal. Bus. & Prof. Code

§6085(b) (bold emphasis added).

This right is to receive exculpatory evidence from

all parts of the State Bar, not just the OCTC, and is

not subject to any exceptions other than that

mitigating evidence need not be disclosed, so

California law privileges do not apply. After

repeated refusals to produce exculpatory material,

•■jf1

;;;*V

?•

Judge Miles imposed evidence and issue sanctions on

the OCTC, as it is the State Bar Court’s position that

it lacks the authority to impose anything other than

mere discovery sanctions where the State Bar

violates its duty of disclosure. Dkt. 1, Complaint at

12.

By 2015 all but one charge had been dismissed

with prejudice. The only charge left was the

contention that Sanai had violated Cal. Bus. & Prof.

Code 6068(g) by filing an abstract of judgment. This

statute states that “It is the duty of an attorney . . .

(g) Not to encourage either the commencement or the

continuance of an action or proceeding from any

corrupt motive of passion or interest.”

Bus. & Prof. Code §6068(g) was entered into

California law in the original 1872 version of the

California Code of Civil Procedure. It read as follows:

It is the duty of an attorney and counselorNot to encourage either the

commencement or the continuance

of an action or proceeding from any

motive of passion

or interest.

Cal. Code Civ. Proc. §282 (1872)

The 1872 Code of Civil Procedure identifies §511

of the New York Code of Civil Procedure as the

source and the provision is identical. The latter Code

is known as the “Field Code” and was the basis of

California’s Code of Civil Procedure.

When interpreting §6086(g), a court must look at

its plain language with particular attention to what

the words would have signified to an attorney in

1850-72. Wisconsin Cent. Ltd. v. United States, 585

(7)

■■

US 274, 277 (2018). The literal words as written

prohibit a lawyer from encouraging, that is to say

advising or assisting, the filing or continuation of a

lawsuit or other legal proceeding “from any motive or

passion.” The preposition phrase “from any motive of

passion or interest” modifies the verb “encourage”.

The Ninth Circuit has addressed the meaning of the

term “encourage” in statutes:

At the outset, we agree with the

government, and the Seventh Circuit,

that "to encourage" means "to inspire

with courage, spirit, or hope ... to spur

on ... to give help or patronage to."

United States u. He, 245 F.3d 954, 960

(7th Cir.2001) (quoting Merriam

Webster's Collegiate Dictionary 381

(10th ed.1996)). Indeed, we have

previously equated "encouraged" with

"helped." United States v. Yoshida, 303

F.3d 1145, 1150 (9th Cir.2002).

U.S. v. Thum, 749 F. 3d 1143, 1147 (9th Cir.

2014); see also Black’s Law Dictionary 1 ed

(1891) at 419.

The plain language of this statute was its

intended purpose: it barred attorneys from

committing advisory or “common” barratry,

that is to say, encouraging third parties to file

lawsuits, whether or not justified.

At early common law, barratry

was the practice of encouraging or

maintaining suits or quarrels in the

courts by (1) disturbing the peace, (2) '

taking or detaining the possession of

property in question by subtlety and

•S

deceit, or (3) fostering calumny

resulting in discord between

neighbors. Later, the definition

was expanded to include any

incitement of litigation between

subjects of the King.

In order to sustain a

conviction for barratry at common

law, it was necessary to show that

the offender had incited litigation

in several instances and had not

brought any of the suits in his own

right, It was not a defense to claim

that malicious intent or an intent to vex

and annoy was lacking. In addition, it

was immaterial that the suits were in

fact meritorious.

At common law, there was a

strong aversion to the institution of

litigation. Barratry, and its sister

offenses, champerty and maintenance,

were based on a "mind your own

business" philosophy which was, at one

time, carried to the extreme of making it

criminal for one to testify at a trial

without having been previously

subpoenaed.

Case Note, First Conviction Under New York

Barratry Statute, 11 CATHOLIC LAWYER

250, 251 (Summer 1965) (bold emphases

added, footnotes omitted).

At no time was Sanai ever accused of

encouraging anyone to do anything. There

were no allegations that Sanai did anything

forbidden by the statute.

While the stay was ongoing, Judge Miles was

replaced by Judge Cynthia Valenzuela. Dkt. 1,

Complaint at 12.

When the stay was lifted, new information was

trickling out about the corruption of the State Bar by

superstar attorney Thomas Girardi. In a series of

devastating pieces over two years, the Los Angeles

Times demonstrated that Girardi had placed his own

operatives in the State Bar who drew a salary from

the State Bar while doing Girardi’s judicial selection

fixing. Girardi was the powerful judicial gatekeeper,

as to federal judges, because of his relationship with

California Senator’s Dianne Feinstein and Barbara

Boxer, and, as to state judges, because of his

relationship with former Attorney General and fourterm governor Jerry Brown. In California the

Governor selects all Court of Appeals judges and

appoints trial court judges when vacancies arise

between elections. Girardi held a veto on all state

candidates for judicial office when Brown was

Governor, and held a veto on State Court of Appeal

judges when Brown was Attorney General because of

the veto rights that Attorneys General have under

California’s judicial appointment process.

Both Judges Miles and Valenzuela had obtained

their positions through Girardi and were part of his

cabal. Dkt. 1, Complaint at 12-13. Indeed, when

Girardi was finally prosecuted by the State Bar,

Judge Valenzuela recused herself from the case

while refusing to disclose the reason for her recusal

' when asked by Sanai, pre-emptively ruling that she

had no “conflict of interest” under California law.

#■-

• r

Dkt 1, Complaint at 13-4. Sanai took this issue up

on interlocutory appeal to the California Supreme

Court; the Court denied review. See Dkt. 21-7 at

Vol. VI, pp. 1362-81; Exh. 5, Vol. VI, pp. 1484-1485.

No justices recused themselves, even though at least

two of them, Justice Kruger and Justice Groban,

have conflicts of interest that required recusal due to

their relationship with Girardi. Dkt 1, Complaint at

14.

Judge Valenzuela quashed all witness subpoenas.

Dkt 1, Complaint at 13-14. Unable to put on

additional evidence, Sanai did the best he could, and

Judge Valenzuela imposed a suspension. Dkt 1,

Complaint at 14. In doing so, she made clear that

she rejected Judge Miles’ findings of fact exonerating

Sanai, and she increased the discipline

recommended by the OCTC and stated she would

have recommended Sanai be disbarred if she could

have. See Dkt. 21-7 Vol. VI p. 1515 (rejecting Judge

Miles findings that trial court and opposing counsel

prepared witness in advance concerning testimony

she recanted). In addition, Judge Valenzuela

completely rejected the obvious conclusion that the

State Bar prosecutors had committed misconduct by

filing causes of action they knew they would lose,

violating discovery orders, and failing to turn over

exculpatory information. Dkt. 21-7, Vol. VI p. 1520.

Most revealing, Judge Valenzuela castigated Sanai

for seeking to prove the existence of an illegal

judicial conspiracy when her State Bar judicial

employer was enmeshed in a twenty-year corrupt

conspiracy between Girardi and trustee and

employees of the State Bar. Id. Judge Valenzuela

was actually biased against Sanai. Dkt. 1,

Complaint at 20-21.

On appeal to the Review Department of the

California State Bar Court, the Review Department

dismissed Sanai’s appeal on the grounds that he

failed to file it after a clerk’s default notice was

issued, but no such notice was issued or could have

been issued under the California State Bar Court

Rules of Procedure. Dkt. 1, Complaint at 16.

Sanai filed a timely petition for review on

November 1, 2022 with the California Supreme

Court that reserved all federal constitutional issues.

Dkt. 21-7, Vol. VI, p. 1530. At the time of filing the

Complaint in this action on March 9, 2023, the

California Supreme Court had made no decision on

Sanai’s Petition for Review. The next day the State

Bar issued a press release and three heavily

redacted internal reports admitting to decades of

corruption associated with Girardi. See Dkts. 21-2,

Vol. I, pp. 1-155. The California State Bar’s outside

counsel confirmed that the OCTC were unaware of

(or chose to ignore) their ethical duties, which are

the same as criminal prosecutors. Dkts. 21-2, Vol. I,

pp.71-2.

Two weeks later the California Supreme Court

issued an opinion, In re Jenkins, 14 Cal.5th 493 (Cal.

2023). In Jenkins, the Court interpreted federal and

California law to conclude that prosecutors have an

ethical duty after trial and even post-conviction

proceedings to disclose exculpatory information. The

Court noted that this disclosure duty is also an

attorney ethical duty existing even in the absence of

specific rules governing prosecutor duties in

California. Id. at 512-518.

■a

■V.

On March 15, 2023 Sanai’s Petition for Review to

the California Supreme Court was denied. Dkt. 217. He filed a timely petition for rehearing. On April

3, 2023, after the filing of a petition for rehearing,

the finality of the denial of the petition and

imposition of a 60 day suspension was stayed

pending resolution of the petition. Docket 21-7, Vol.

VI, pp. 1530-2. On May 31, 2023 the petition was

denied, and discipline was ordered to be effective on

June 30, 2023. App. VIII, Exh. 8, Docket 21-7, Vol.

VI, p. 1532.

Sanai then filed with the California Supreme

Court a Petition for Rehearing of the order denying

the petition for hearing based on the new facts

regarding the State Bar’s patently false public

announcement that Sanai was suspended. Dkt. 27-2.

The Supreme Court responded with a letter rejecting

the petition because:

The court is unable to file your

submission as there is no

provision in the Rules of Court to

file a rehearing of the denial of a

rehearing. This case is now

closed and cannot be

reconsidered or reinstated.

App. F,

Procedural Background

Sanai filed appeals in each case that were

consolidated with the appeal he filed as counsel for

Mr. Roshan. The Ninth Circuit affirmed the

dismissals based on Younger abstention. App. A.

Four petitions for rehearing which cross-referenced

the others were filed on April 17, 2024, and were

denied. App. B.

WHY THE PETITION SHOULD BE GRANTED

A. Younger Abstention

In this Court’s most recent discussion of Younger

abstention, it explained that:

In the main, federal courts are obliged to

decide cases within the scope of federal

jurisdiction. Abstention is not in order

simply because a pending state-court

proceeding involves the same subject matter.

New Orleans Public Service, Inc. v. Council

of City of New Orleans, 491 U.S. 350, 373,

109 S.Ct. 2506, 105 L.Ed.2d 298 (1989)

(NOPSI). ("[Tjhere is no doctrine that...

pendency of state judicial proceedings

excludes the federal courts."). This Court has

recognized, however, certain instances in

which the prospect of undue interference

with state proceedings counsels against

federal relief. See id., at 368, 109 S.Ct. 2506.

Younger exemplifies one class of cases in

which federal-court abstention is required:

When there is a parallel, pending state

criminal proceeding, federal courts must

refrain from enjoining the state prosecution.

This Court has extended Younger abstention

to particular state civil proceedings that are

akin to criminal prosecutions, see Huffman v.

Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43

L.Ed.2d 482 (1975), or that implicate a

State's interest in enforcing the orders and

judgments of its courts, see Pennzoil Co. v.

Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987). We have cautioned,

however, that federal courts ordinarily

should entertain and resolve on the merits

an action within the scope of a jurisdictional

grant, and should not "refus[e] to decide a

case in deference to the States." NOPSI, 491

U.S., at 368, 109 S.Ct. 2506.

4ft

il.

Circumstances fitting within the Younger

doctrine, we have stressed, are "exceptional";

they include, as catalogued in NOPSI, "state

criminal prosecutions," "civil enforcement

proceedings," and "civil proceedings

involving certain orders that are uniquely in

furtherance of the state courts' ability to

perform their judicial functions." 491 U.S., at

367-368, 109 S.Ct. 2506.

Sprint Communications Inc. u. Jacobs, 571 US

69, 72-78 (2014).

B. The Courts of Appeal are Completely

Inconsistent on the Propriety of Raising

Younger abstention or other Abstention

Doctrines Sua Sponte and Raising it Sua

Sponte Violates the Party Presentation

Principle.

In Sanai v. Kruger and Sanai u. Lawrence the

district courts raised Younger abstention sua sponte.

Ninth Circuit authority permits this. San Remo Hotel

v. San Francisco, 145 F.3d 1095, 1103 fn 5 (9th Cir.

1998)(Tashima, J.), citing Barichello v. McDonald, 98

F.3d 948, 955 (7th Cir. 1996); see also Columbia

Basin Apartment Ass'n u. City of Pasco, 268 F.3d 791,

799 (9th Cir. 2001). Other opinions taking this view

include: Lawrence v. McCarthy, 344 F.3d 467, 470

(5th Cir. 2003); Morrow v. Winslow, 94 F.3d 1386,

1391-92 (10th Cir. 1996); O'Neill v. City of

Philadelphia, 32 F.3d 785, 786 n.l (3d Cir. 1994);

Federal Exp. Corp. v. Tenn. Pub. Serv. Comm'n, 925

F.2d 962, 966 (6th Cir. 1991).

However, sua sponte invocation of Younger is also

often rejected: Winston u. Children & Youth Servs.,

948 F.2d 1380, 1385 (3d Cir. 1991) ("[W]e decline to

decide the abstention issue on our own motion");

Shannon u. Telco Communications, Inc., 824 F.2d

150, 151-52 (1st Cir. 1987) (because state did not

press the abstention issue before the court of appeals,

court addressed merits of appeal); Universal

Amusement Co. u. Vance, 587 F.2d 159, 163 n. 6 (5th

Cir. 1978) (en banc) ("Appellant did not raise the

question of Younger abstention, and that issue, being

nonjurisdictional, is thus not before this court.").

The current Untied States Attorney for the

Central District of California analyzed the conflicting

authority in 2005.

Estrada, E. Martin (2005)

"Pushing Doctrinal Limits: The Trend toward

Applying Younger Abstention to Claims for Monetary

Damages and Raising Younger Abstention Sua

Sponte on Appeal," North Dakota Law Review: Vol.

81: No. 3, Article 18. After surveying the case law

Mr. Estrada wrote that:

The court of appeals decisions stating that

sua sponte implementation of Younger on

appeal is permissible generally do so with

‘i

•

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jin

if;

little discussion. In almost all instances,

their support for this proposition can be

traced to one primary source, a footnote in

Bellotti v. Baird, a Supreme Court

decision addressing Pullman abstention.

The most oft-cited language in

Bellotti is a portion of a footnote that

reads, "[I]t would appear that abstention

may be raised by the court sua sponte."'

Id. at 490 (footnotes omitted).

The Belotti footnote is pure dicta concerning the

theoretical possibility that Pullman abstention could

have been raised earlier in the action. This dictum

was consistent with the then unrestrained practice of

raising new issues in the Courts of Appeals sua

sponte. See Miller, Barry A. (2002) “Sua Sponte

Appellate Rulings: When Courts Deprive Litigants of

an Opportunity to be Heard,” San Diego Law Review:

Vol. 39, 1255,

This Court also focused on sua sponte judicial

action at the same time. In 2000 Justice Ginsberg

penned the first of several opinions that addressed

what she called the “party presentation principle" in

rejecting a call for states for the court to sua sponte

raise the issue preclusion. See Arizona u. California

530 U.S. 392 (2000). Over the next two decades the

principle was invoked with greater frequency, until

this Court took a case solely for the purpose of

reversing sua sponte action of the Ninth Circuit:

United States u. Sineneng-Smith, 140 S. Ct. 1575

(2020).

Sinenneng-Smith stated, for the first time, the

parameters for sua sponte consideration of issues by

federal appellate courts. It held that outside a few

circumscribed areas such as helping pro se parties

and fundamental jurisdictional issues, federal courts

should not be raising issues in litigation.

This petition presents three new and important

aspects of the application of the principle not present

in Sineneng-Smith. First, this case involves sua

sponte actions of a district court. While there is no

articulable reason that this should make a difference,

the fact that it is a different level of court that acted

is the kind of distinction without a difference that

nonetheless can be seized upon by lower courts to

allow unfettered sua sponte issue-raising by district

courts or bankruptcy judges.

Second, the Courts that have put some thought

into the question of sua sponte raising Younger

abstention have dicta from this Court’s decision in

Belotti to cite as support. Only this Court can tell the

lower courts to put aside its non-precedential

discussions. Accordingly this Court should grant

certiorari to address whether or not its Belotti

footnote remains good law or has been superseded by

this Court’s holding in Sineneng-Smith.

Third, in both instances where the district court

invoked Younger abstention, in Sanai u. Kruger and

Sanai v. Lawrence, the finding that Younger applied

was made without notice or an opportunity to be

heard. Each time the judges relied upon the holding

in Hirsh v. Justices of Supreme Ct. of Cal., 67 F.3d

708, 712 (9th Cir. 1995), a case which held that in

1995 California attorney discipline matters met the

Middlesex factors. Hirsh, supra, citing Middlesex,

supra at 432. The Court below made no effort to

determine whether the attorney disciplinary process

is the same today as it was found to be in 1995.

Like Sineneng-Smith, Sanai u. Kruger is the ideal

. case for addressing sua sponte judicial action,

because the California Supreme Court justice

defendants chose, quite wisely, to default. If sua

sponte consideration was appropriate in Sanai v.

Kruger, it will be proper in any circumstances. San

Remo, supra and Sineneng-Smith were both written

decisions of Circuit Judge Tashima, who was on the

panel in the appeals addressed by this petition.

h-‘

£.:

*:•••

■

C. California State Bar Proceedings are Not

“Civil Enforcement Actions.”

The panel decision in this case included no

finding that California attorney discipline matters

fall into the NOPSI categories. In the Sanai u.

Lawrence Petition for Rehearing, Appellants

argued as follows:

For half a century the federal courts

expanded the scope of a long-existing rule

of Anglo-American equity jurisprudence,

that civil equity courts cannot enjoin

criminal proceedings, into a ballooning

bar against federal court enjoining

proceedings in any state tribunal,

whether in the executive, legislative, or

judicial branch. See Sprint Common,

LLC v. Jacobs, 571 U.S. 69, 81 (2014);

ReadyLink Healthcare, Inc. u. State

Comp. Ins. Fund, 754 F.3d 754, 758 (9th

Cir. 2014); Cook v. Harding, 879 F.3d

1035, 1039 (9th Cir. 2018).

In Sprint, the United States Supreme

Court (“SCOTUS”) imposed “strict

limitations on Younger abstention”, to

only three kinds of state judicial

proceedings identified in New Orleans

Public Service, Inc. v. Council of New

Orleans, 491 U.S. 350, 367-68

(1989)(“NOPSF). “[T]hese three

categories are known as the NOPSI

categories. ” Herrera v. City of Palmdale,

918 F.3d 1037, 1044 (9th Cir 2019). As to

Younger abstention SCOTUS “has never

extended it to proceedings that are not

"judicial in nature" and/or that where the

initial proceedings are “legislative or

executive action”. NOPSI at 368-70.

Sprint further limited the qualifying

categories of judicial proceedings to

criminal proceedings, civil enforcement

proceedings, and civil court proceedings at

the core of the state court’s mechanism for

enforcement of its operations. Sprint at

69-70.

The current test thus sets outs five

requirements, starting out with falling

into one of the NOPSI categories. "Each

of these requirements must be 'strictly

metRynearson v. Ferguson, 903 F.3d

920 (9th Cir. 2018) (citation omitted).

The District Court took none of this

case law into account. He did not cite or

discuss in any of the appealed orders,

collected in Volume 1 of the SER the

relevant authority of Sprint, NOPSI,

Readylink, Cook or Herrera, all supra.

Instead, he relied on Hirsh v. Justices of

Supreme Court of California, 67 F.3d 708

(9th Cir. 1995). Hirsh is wildly out of date

and does not have any analysis as to

whether the State Bar of California

(“SBOC”) Court proceedings are judicial

in nature or a civil enforcement

proceeding: instead, the Hirsh panel

wrote that “Appellants point to no

relevant distinction between this

procedure and that held to be judicial in

nature in Middlesex...”. Id. at 712.

The California Supreme Court

(“SCOCA”) in contrast declares that

SBOC exercises no judicial power

whatsoever because SCOCA cannot

delegate it. In Re Rose, 22 Cal.4th 430,

436 (2000) (“Rose”). They are repeatedly

characterized as “quasi-judicial”1 in

nature at pages 439-444 of Rose; see also

AB 21 (“State Bar Disciplinary

Proceeding Are Quasi-judicial

Proceedings”).

State Bar proceedings are also not

“civil enforcement proceedings” because

while they are enforcement proceedings,

they are not civil:

Just as the State Bar Court is

unique, so are the disciplinary

proceedings heard by the State

Bar Court. "Proceedings before

the State Bar are sui generis,

neither civil nor criminal in

“This term [quasi] is used in legal phraseology to indicate that one

subject resembles another, with which it is compared, in certain

characteristics, but that there are intrinsic and material differences

between them.” Black’s Law Diet. (4th ed. 1968) at 1410.

character, and the ordinary

criminal procedural safeguards

do not apply.

Rose at 440 (bold emphasis added).

Hirsh’s determination, made five

years before Rose and nine years before

Sprint, that proceedings before the SBOC

Court are subject to Younger is wrong,

and because Rose incorporates Hirsh’s

analysis on the sufficiency of SCOCA’s

procedures, Rose is necessarily unsound

and out of date as to its substantive

holdings of constitutional sufficiency.

The panel refused to acknowledge

the updated law, and in particular the

restriction that Younger only applies to

civil litigation if the cases fall into the

NOPSI categories.

The panel’s analysis likewise solely

quotes the Middlesex factors and does not

recognize the strict limitations now placed

upon Younger. The panel explicitly stated

that the conditions which must be met are

that the

“state proceedings (1) are

ongoing, (2) implicate important

state interests, and (3) provide

the plaintiff an adequate

opportunity to litigate federal

claims...."Middlesex factors . . .

guide consideration of whether

Younger extends to noncriminal

proceedings"). In addition, "[t]he

js:-

■S>i

■a.

tSE’

requested relief must seek to

enjoin or have the practical

effect of enjoining-ongoing state

proceedings.".... If each of these

conditions is met, Younger

abstention is appropriate unless

"there is a 'showing of bad faith,

harassment, or some other

extraordinary circumstance that

would make abstention

inappropriate.'"

Mem Disp. at 4.

This definition extends Younger to

“virtually all parallel state and federal

proceedings”, in direct rejection of Sprint.

SBOC proceedings are also not

“civil enforcement proceedings”

because they are not civil, but

instead sui generis, neither civil no

criminal in character. Rose at 440.

Appellants believe that NOPSI

requires a civil enforcement

proceeding to meet minimal civil

standards for Younger to apply,

Circuit Judge Siler held it must meet

minimal standards of criminal due

process. Doe v. Univ. of Kentucky, 860

F.3d 365, 370 (6th Cir. 2017)(“while

the proceeding may lack all the

formalities found in a trial, it

contains enough protections and

similarities to qualify as "akin to

criminal prosecutions" for purposes

of Younger abstention.”)

Sanai v Lawrence Pet. for Rehearing at 7-15 (bold

emphasis added).

After the mandate was issued, Sanai was able to

collect more admissions by the State Bar Court that

California attorney discipline matters are not civil,

because, among other things, they do no not

recognize application of the party presentation

principle. See Motion to Recall Mandate, Filed Sept.

3, 2024.

The California Supreme Court in Rose, supra, was

facing a petition for review arguing for written

decision because all civil and criminal proceedings

decided on the merits are required by California law

to be by written decision after oral argument.

However, because the California Supreme Court

wanted out of the burden of writing decisions in

attorney discipline matters, it classified California

State Bar proceedings as something outside the

parameters of both criminal proceedings and civil

proceedings.

Obviously this holding meant that, when faced

with Sanai’s claims against the members of the

California Supreme Court, the members would need

to convince the California attorney general, who

would defend them, to repudiate the Supreme Court’s

clear determination that attorney discipline

proceedings are not civil enforcement proceedings.

Rather than face this difficult task, they instead

astutely allowed Sanai take their default knowing

they could rely upon the Ninth Circuit’s commitment

to its now erroneous Younger abstention precedent as

applied to California State Bar proceedings.

Accordingly, if this Court agrees that first

question presented in this petition should be

addressed, it must necessarily address whether the

Ninth Circuit erred in applying Younger abstention

without addressing into what NOPSI category

California attorney discipline proceedings fall when

concurrently being required to accept the allegations

and evidence presented by Sanai as true.

::;;v

vi'

D. The Panel Invented a New Middlesex

Factor.

California case law does not permit a party to

enter a trial court’s rulings or in-court statements as

evidence to prove bias under either state or federal

law. See Roitz v. Colduiell Banker Residential

Brokerage Co., 62 Cal.App.4th 716, 724 (1998); Jack

Farenbaugh & Son v. Belmont Construction, Inc. 194

Cal. App.3d 1023, 1031 (1987); People v. Guerra, 37

Cal.4th 1067, 1112 (2006). In Guerra, the California

Supreme Court rejected judicial bias claims made

under state and federal law, stating that “Defendant

has a due process right to an impartial trial judge

under the state and federal Constitutions....a trial

court's numerous rulings against a party—even when

erroneous—do not establish a charge of judicial bias”.

Id; see also Cal. Code Civ. Proc. §170.2(b) (excluding

as grounds for disqualification if the judge has “in

any capacity expressed a view on a legal or factual

issue presented in the proceeding.”).

This makes it impossible to raise certain kinds of

judicial disqualification claims, such as compensatory

bias under Bracy v. Gramley, 520 U.S. 899 (1997) and

Gacho v. Wills, 986 F.3d 1067 (7th Cir. 2021).

To establish a claim of absence of impartiality

under Bracy and Gacho, a litigant must, to prove

actual bias, do exactly what Guerra prohibits,

pointing to the adverse rulings as evidence, along

with corruption by third parties. See Bracy u.

Schomig, 286 F.3d 406, 416-419 (7th Cir. 2002)

(exclusively using in-court statements and rulings to

find actual compensatory bias of corrupt judge).

Federal law is the opposite of California, and a

judge’s rulings and statements in courts are

admissible in federal court to show bias, even

without other evidence. Liteky v. United States 510

U.S. 540, 551 (1994). In Liteky the Supreme Court

recognized that the statements and orders of a judge

could, on their own, provide a proper basis for

recusal:

It is wrong in theory, though it may not

be too far off the mark as a practical

matter, to suggest, as many opinions

have, that "extrajudicial source" is the

only basis for establishing disqualifying

bias or prejudice. It is the only common

basis, but not the exclusive one, since it

is not the exclusive reason a

predisposition can be wrongful or

inappropriate.

Id.

But there is another facial barrier to raising

Bracy or indeed any constitutional claims regarding a

State Bar Court judge’s lack of impartiality in the

State Bar Court. The State Bar Court Rules of

Procedure do not allow it. Rules Proc. of State Bar,

rule 5.46(C). The State Bar Court Rules of Procedure

only allow disqualification of State Bar Court judges

;

to be made under specific portions of the California

statutory grounds for disqualification:

Only the provisions of Code of

Civil Procedure §§ 170.1, 170.2,

170.3(b), 170.4, and 170.5(b)-(g) apply

to judicial disqualification in State Bar

Court proceedings.

Rules Proc. of State Bar, rule 56(C).

,-IV-

Accordingly, when it comes to disqualification of

State Bar Court judges under authority emerging

solely from federal law, the California State Bar

Court Rules of Procedure explicitly prohibit raising

federal claims. It also prohibits consideration of the

judge’s statements and rulings. Cal. Code Civ. Proc.

§170.2(b). This means that State Bar recusal

requests can never be perfected for consideration by

the California Supreme Court.

A more serious problem exists at the California

Supreme Court level. There is no procedure to

disqualify or seek the recusal of a Court of Appeal

justice or California Supreme Court justice on any

basis. Kaufman v. Court of Appeal, 31 Cal.3d 933

(1982). This holding is recognized by the Ninth

Circuit. Hirsh, supra at 714 (acknowledging the

“absence of a mandatory statutory recusal

mechanism applicable to justices of the California

Supreme Court”).

The standard for prevailing is to demonstrate

actual, prejudicial bias, which is not the federal

standard. Compare Kaufman, supra at 940 (“in this

court the sole question would be: "Because of his

bias, did the appellate proceeding wherein a justice

participated become illegally and prejudicially

unfair?””) with Williams u. Pennsylvania, 136 S. Ct.

1899, 1905-1909 (2016)(in applying federal standard,

“Court asks not whether a judge harbors an actual,

subjective bias, but instead whether, as an objective

matter, “the average judge in his position is ‘likely’

to be neutral, or whether there is an

unconstitutional ‘potential for bias’” and “a due

process violation arising from the participation of an

interested judge is a defect "not amenable" to

harmless-error review”). Thus under the federal

standard there is no requirement to show the

prejudice required under Kaufman, supra. See also

Gacho, supra, at 1075, citing Edwards v. Balisok,

520 U.S. 641, 647 (1997). It is therefore impossible

to move to disqualify a California Court of Appeal or

California Supreme Court judge or justice under the

federal standard—there is no procedure to do it, and

the standard applied is not the federal standard.

Nor is there any mechanism to obtain disclosures of

potential conflict of interests, or to conduct discovery

against them to determine whether a conflict of

interest exists.

The absence of a recusal mechanism for the

California Supreme Court is particularly

problematic when demanding disclosure of Girardi’s

corrupt relationship with the California judiciary.

Prior to being seated at the California Supreme

Court, Defendant Justice Groban was the

intermediary between Girardi and former Governor

Brown. Complaint, Dkt. No. 1 at If 13. Girardi had a

veto over all judges appointed by Governor Brown.

Groban’s job for eight years was ensuring that

■>:

Girardi’s hold over the judiciary was rock-solid. He

therefore had a disqualifying financial interest in

litigation which sought to raise Bracy and Gacho

compensating bias with the California Supreme

Court as to California State Bar Court judges in

Sanai’s case, including Judge Valenzuela, regarding

Girardi, where the same issue exists to him; but he

did not recuse from such a case, and there was no

mechanism to make him recuse. Justice Groban also

has a disqualifying personal interest to not have

publicly revealed the extent to which his activities

gave Girardi carte blanche in California Courts for

over a decade. Aetna Life Ins. Co. v. Lavoie, 475 U.S.

813 (1986) (Supreme Court justice must recuse

himself from case involving legal issues that will

have an effect on his personal financial interests).

Defendant Justice Jenkins was the intermediary

between Girardi and Governor Newsom. Justice

Jenkins, like Justice Groban, was tasked to ensure

that Girardi’s hold over the judiciary was rock-solid.

He therefore had a disqualifying financial interest in

litigation which sought to raise Bracy and Gacho

compensating bias as to State Bar Court judges in

Sanai’s case, including Judge Valenzuela, regarding

Girardi, where the same issue exists to her, but did

not recuse and there was no mechanism to make him

recuse. He also has a disqualifying personal interest

to not have publicly revealed the extent to which his

activities gave Girardi carte blanche in California

Courts over a decade to his role in appointing them.

Aetna Life Ins. Co., supra. See generally Complaint,

Docket No. 1 at ^fl3.

The District Court is required to accept the truth

of these specific factual allegations because the Court

was conducting a dismissal on a pleading basis, and

because the Defendants defaulted. Upon entry of

default, the well-pleaded factual allegations of a

complaint are deemed true; however, allegations

pertaining to the amount of damages must be proven.

TeleVideo Systems, Inc., supra, at 917; see also

Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th

Cir. 1977) (“[U]pon default[,] the factual allegations

of the complaint, except those relating to the amount

of damages, will be taken as true.”).

The panel refused to accept the truth of Sanai’s

allegations. Moreover, the panel rejected the

allegations in the Complaint that there was no

procedural mechanism to raise constitutional

disqualification arguments as to California State Bar

Court judges or appellate justices.

Appellants relatedly argue that the

State Bar proceedings provide an

inadequate opportunity to litigate

because appellants are precluded from

raising claims of judicial bias or

obtaining discovery related to

suspected bias, as allegedly allowed

under Bracy u. Gramley, 520 U.S. 899

(1994) and Gacho v. Wills, 986 F.3d

1067 (7th Cir. 2021). But in alleging

bias by State Bar officials and state

judges in favor of Thomas Girardi,

appellants have not plausibly

explained the relationship between

Girardi and their State Bar

proceedings. Appellants’ wholly

conjectural bias claims fail to

“overcome [the] presumption of

honesty and integrity in those serving

as adjudicators.” Hirsh, 67 F.3d at 713

(quoting Kenneally v. Lungren, 967

F.2d 329, 333 (9th Cir. 1992)).

App. A at A-8.

Si'

This analysis is completely in conflict with the

requirement that the allegations of the plaintiff be

deemed true. All this Court, and every other

published Ninth Circuit decision, has ever required

for Younger to be defeated is that there will be no

fair opportunity to raise and prove the contention.

See Middlesex, supra, at 434 (“The remaining

inquiries are...whether the federal plaintiff has an

adequate opportunity to present the federal

challenge.”) Evaluating the merits of the federal

challenge is not part of the inquiry, and indeed

would require that the federal court rule on the

merits!

CONCLUSION

The judges in the Ninth Circuit still do not take

the party presentation principle seriously, and

district court judges appear to be believe that it does

not even apply to them.

For the reasons set forth above and in Roshan’s

accompanying petition, this Court should grant both

petitions as to all issues, or grant it only as to

Question 3, summarily reverse, and remand to the

Ninth Circuit to address all other issues raised by

Sanai and Roshan.

Dated this September 16, 2024

Respectfully submitted,

Cyrus Sanai

9440 Santa Monica Blvd.

#301 .

Beverly Hills, CA 90210

tel. 310-717-9840

cyrus@sanaislaw.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.