Free Reply - District Court of California - California

Case 3:07-cv-02090-JM-BLM

Document 36

Filed 05/21/2008

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DARLENE A. DORNAN, Court Counsel (Bar No. 182228) Superior Court of California, County of San Diego By CHERYL L. BRIERTON, Litigation Attorney (Bar No. 108242) 220 West Broadway San Diego, California 92101 Telephone: (619) 531-3036 Facsimile: (619) 685-6606 Attorneys for Defendant, the Honorable Allan J. Preckel, Judge of the Superior Court of California, County of San Diego UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RUSSO BAILEY, Plaintiff, vs. STATE OF CALIFORNIA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07CV02090 JM (BLM) REPLY BY DEFENDANT, THE HONORABLE ALLAN J. PRECKEL, JUDGE OF THE CALIFORNIA COURT, IN SUPPORT OF MOTION TO STRIKE; OPPOSITION TO PLAINTIFF'S REQUEST FOR SANCTIONS [NO ORAL ARGUMENT REQUESTED] Date : Time : Crtrm: Judge: June 6, 2008 1:30 p.m. 16 (5th Floor) Honorable Jeffrey T. Miller

Defendant, the Honorable Allan J. Preckel, Judge ("Judge Preckel") of the Superior Court of California, County of San Diego ("California Court"), hereby submits the following reply in support of his Motion to Strike Plaintiff's First Amended Complaint. Plaintiff's Opposition once again confirms that in this pending action, Plaintiff is challenging the proceedings in the underlying state criminal case. (People v. Russell

REPLY - 1

07cv2090

Case 3:07-cv-02090-JM-BLM

Document 36

Filed 05/21/2008

Page 2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Lorin Bailey, California Court Case. No. SCE267015, appeal pending, D051309. 1 ) Plaintiff continues to argue that in the underlying California Court criminal action, in which Plaintiff herein was a defendant, Judge Preckel made rulings with which Plaintiff still disagrees. (Opposition, 3:13-15, 6:13-22, 8:15-22; Plaintiff's "Exhibit A" to Opposition.) In so doing, Plaintiff confirms that judicial immunity applies. Other than to excoriate them as "fraudulent contingencies of quackery law" and the like, Plaintiff does not address the authorities set forth in Judge Preckel's Motion to Dismiss concerning state sovereign immunity, 2 abstention doctrine, Heck v. Humphrey, 512 U.S. 477 [114 S. Ct. 2364, 129 L. Ed. 2d 383] (1994), or other substantive arguments. (Opposition, 2:25, 6:1-7, 7:1-8:13, 9:1-25.) These principles also operate as a dispositive bar to Plaintiff's claims against Judge Preckel. There is no basis for sanctions against Judge Preckel under Federal Rule of Civil Procedure section 11. All Judge Preckel's arguments are meritorious. Moreover,
1

As of May 15, 2008, the website of the California Court of Appeal, Fourth Appellate District, Division One, shows that the Court of Appeal filed its opinion in plaintiff's case (D051309) on March 21, 2008, affirming Judge Preckel, with the remittitur scheduled to issue on May 21, 2008. http://appellatecases.courtinfo.ca.gov/search/case/scheduledActions.cfm?dist=41&doc_i d=735535&doc_no=D051309 ; http://www.courtinfo.ca.gov/cgibin/npopinions.cgi?Courts=D Plaintiff refers to Judge Preckel as an employee of "the State of California Department of Justice" (Opposition, 1:28, 3:22-23.), or alternatively, as an employee of the Supreme Court of California (Opposition, 4:7). However, Judge Preckel is a state constitutional officer. Cal. Const. art. VI, § 4. Plaintiff dismisses state sovereign immunity doctrine and abstention doctrine as based on falsehoods. (Opposition, 6:237:2.) In any event, the authorities cited in Judge Preckel's Motion to Strike, as in his initial Motion to Dismiss With prejudice granted by this court, establish that this doctrine also protects him from this suit. Indeed, state sovereign immunity even protects against actions by Californians in California state courts. Kirchmann v. Lake Elsinore Unified School Dist., 83 Cal. App. 4th 1098, 1104 (2000). There has been no waiver: the defense has been raised at the first opportunity.
2

REPLY - 2

07cv2090

Case 3:07-cv-02090-JM-BLM

Document 36

Filed 05/21/2008

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff has not served a separate motion seeking sanctions, or otherwise complied with the provisions of Federal Rule of Civil Procedure 11, subdivision (c)(2). Plaintiff's "Request for Sanctions" filed January 18, 2008 also references Code of Civil Procedure section 1218, the California contempt statute. State statutes do not govern the federal court's contempt powers (Lambert v. Montana, 545 F.2d 87, 91 (9th Cir. 1976)), but in any event, the federal court has made no order with which Judge Preckel has failed to comply. This court has already dismissed Judge Preckel with prejudice. As such, Judge Preckel's Motion to Strike the First Amended Complaint against him should be granted, with prejudice, and a judgment entered in his favor. DATED: May 21, 2008 By: __s/ Cheryl L. Brierton_____________________ CHERYL L. BRIERTON, Litigation Attorney Attorneys for Defendant, the Honorable Allan J. Preckel, Judge of the Superior Court of California, County of San Diego DARLENE A. DORNAN, Court Counsel Superior Court of California, County of San Diego

REPLY - 3

07cv2090

Case 3:07-cv-02090-JM-BLM

Document 36

Filed 05/21/2008

Page 4 of 5

Case 3:07-cv-02090-JM-BLM

Document 36

Filed 05/21/2008

Page 5 of 5