Free Motion to Dismiss - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 TOM BLAKE Deputy Attorney General 3 State Bar No. 51885 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664 4 Telephone: (415) 703-5506 Fax: (415) 703-5480 5 Email: [email protected] 6 Attorneys for Defendants, The Honorable David Ballati; The Honorable Yolanda Northridge; The 7 Honorable Frank Roesch; the Honorable Carl Morris; The Honorable George C. Hernandez, Jr.; Superior 8 Court of California, County of Alameda; Superior Court of California, County of San Francisco 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on July 30, 2008, at 9:00 a.m., or as soon thereafter as counsel may be heard in Courtroom 3 (17th Floor) of the above entitled court, located at 450 Golden Gate Avenue, San Francisco, California 94102, the above-captioned defendants will move for an order under Rule 12(b), Federal Rules of Civil Procedure, dismissing the complaint and each of the claims alleged therein as to moving defendants on the grounds that the complaint fails to state a claim upon which relief can be granted against the State of California and its judicial agencies and
Notice of hearing; Motion to Dismiss; Points and Authorities; Req. for Judicial Notice Case No. CV08 1618 PJH

FRED A. WHITAKER, Plaintiff, v. THE HONORABLE DAVID BALLATI; THE HONORABLE YOLANDA NORTHRIDGE; THE HONORABLE FRANK ROESCH; THE HONORABLE CARL MORRIS; THE HONORABLE GEORGE C. HERNANDEZ, JR.; SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA; SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO, Defendants.

CV08 1618 PJH NOTICE OF HEARING; MOTION TO DISMISS COMPLAINT [RULE 12(B) F.R.C.P.]; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; REQUEST FOR JUDICIAL NOTICE Date: Time: Dept.: July 30, 2008 9:00 a.m. Courtroom 3, 17th Floor

Contemporaneously filed: Motion for Pre-filing Review

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officers. PLEASE TAKE FURTHER NOTICE that judicial notice is requested of the court decisions, records and other matters attached hereto as exhibits. THIS MOTION WILL BE BASED on this notice of motion and motion; the memorandum of points and authorities in support thereof, and the exhibits thereto; the pleadings, papers, and documents on file herein; and such oral and documentary evidence as shall be introduced at the time of the hearing. MOTION TO DISMISS Defendants move to dismiss the complaint on file herein on the specific grounds that the complaint fails to state a claim upon which relief can be granted against the moving defendants. WHEREFORE, moving defendants pray as follows: 1. That the complaint on file herein and each claim for relief alleged therein be dismissed as against moving defendants, and 2. That plaintiff be ordered to take nothing from moving defendants, and 3. That judgment be entered in favor of the moving defendants. Dated: June 25, 2008 Respectfully submitted,

/s/ Tom Blake TOM BLAKE Deputy Attorney General Attorneys for Defendants the Honorable David Ballati; the Honorable Yolanda Northridge; the Honorable Frank Roesch; the Honorable Carl Morris; the Honorable George C. Hernandez, Jr.; Superior Court of California, County of Alameda; Superior Court of California, County of San Francisco.

Notice of hearing; Motion to Dismiss; Points and Authorities; Req. for Judicial Notice

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff again seeks to invoke the jurisdiction of this Court to overturn a state court judgment

4 that he is a vexatious litigant within the meaning of California Code of Civil Procedure § 391. 5 Plaintiff has frequently brought suit in this Court and in state courts asking for the same relief, 6 burdening a variety of state and federal courts and judges; a motion to renew this Court's 1992 order 7 requiring pre-filing review is filed contemporaneously.1/ 8 In 1991, the Superior Court of California, County of Alameda, found pro se plaintiff Whitaker

9 to be a vexatious litigant within the meaning of California Code of Civil Procedure § 391.2/ Pursuant 10 to § 391.7, the Superior Court entered a pre-filing order prohibiting Mr. Whitaker from filing new 11 lawsuits in the California courts in propria persona without first obtaining leave of court. (See Ex. 12 A, Whitaker v. Bay Area Rapid Transit, No. 687320-0 (Cal. Super. Ct. Nov. 22, 1991) (order 13 granting motion for pre-filing order).) In 1992, in a separate action, the California Court of Appeal 14 also held that plaintiff is a vexatious litigant and entered a pre-filing review order. (See Exs. B & 15 C, In re Whitaker (1992) 6 Cal.App.4th 54, 55.) 16 Plaintiff now again alleges that § 391 et seq. (see Ex. D) is unconstitutional (Compl. ¶ 36.0.),

17 and asks this Court to enjoin the Superior Court of California and its judges from including his name 18 on the list of vexatious litigants and from maintaining the pre-filing orders against him. (Compl. ¶ 19 51.3; see also Exs. A & B.) Plaintiff's complaint should be dismissed because it is it well 20 established that § 391 et seq. is constitutional and that this Court is without jurisdiction to review 21 the California appellate and trial court determinations that Mr. Whitaker is appropriately subject to 22 pre-filing review in state court. 23 24 1. The plaintiff did not obey Judge Lynch's 1992 order requiring pre-filing review before filing the instant action. The Clerk's office accepted the complaint, apparently unaware of the pre25 filing order. A magistrate judge of this Court reviewed the instant complaint, also apparently 26 without being made aware of the 1992 pre-filing order and, given the record then before him, reserved decision as to whether this lawsuit was frivolous (see Docket No. 9). 27 2. Statutory references hereafter are to the California Code of Civil procedure unless 28 otherwise stated.
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It is uncontested that plaintiff is on the state vexatious litigant list. (See Exs. A, B & C; Compl.

2 ¶ 1.0.) He was placed on the list in 1991 by a judge of the Alameda Superior Court after he had an 3 opportunity to submit written and oral opposition. (See Ex. A, Whitaker v. Bay Area Rapid Transit, 4 No. 687320-0 (Superior Court order granting pre-filing review).) 5 In the 1992 action, the plaintiff was put on the vexatious litigant list by the California Court

6 of Appeal. The state appellate court noted: 7 8 9 10 (See Exs. B & C, In re Whitaker,6 Cal.App.4th at 55 (citing Whitaker v. Bay Area Rapid Transit 11 District, A049779, nonpub. opn. filed April 23, 1991).) The court had issued an order to Whitaker 12 to show cause why the motion for a pre-filing order should not be granted; the matter was set for 13 hearing at which Whitaker appeared and submitted arguments. Id. In its partially published opinion, 14 the state Court of Appeal held that plaintiff had misused the courts of California: 15 16 17 . . .Whitaker is again contending that the vexatious litigant statutes are unconstitutional, an argument we expressly rejected in one of his cases only last year. This identical argument has also been rejected by other divisions of this court in cases in which he was a party. By coming forward again with this argument, Whitaker is engaging in frivolous conduct. Our attention was first drawn by the fact that the primary emphasis of Whitaker's briefs was a challenge to the constitutionality of the vexatious litigant statutes, an argument identical to one rejected by this court in an unrelated appeal only last year.

18 Id. The court also noted that, since 1985, Whitaker had filed at least twenty-four (24) unsuccessful 19 actions in the Alameda Superior Court and no less than thirty-five (35) writs and appeals in the state 20 Court of Appeal. Id. The court held that "Fred A. Whitaker is a vexatious litigant within the 21 meaning of section 391" and ordered that "Fred A. Whitaker may not file any litigation in the courts 22 of this state in propria persona without first obtaining leave of the presiding judge . . ." Id. 23 Along with his state court lawsuits, Whitaker brought actions in federal court, challenging

24 both the constitutionality of the state vexatious litigant statute and the correctness of the state court 25 judgments enforcing it as to him. In November 1991, this Court dismissed plaintiff's action against 26 the Superior Court, and the Ninth Circuit affirmed. (See Exs. E & F; Whitaker v. Alameda County 27 Superior Court, 972 F.2d 1348 (9th Cir. 1992) (dismissing and ordering sanction in the amount of 28 $250), aff'g No. C-91-2425, cert. denied, 507 U.S. 932 (1993).)
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In August 1992, this Court dismissed plaintiff's suit against the California Court of Appeal and

2 issued an order to the Clerk of this Court not to file any further complaints from plaintiff without 3 a prior judicial determination that they are not frivolous. The Ninth Circuit affirmed. (See Exs. E 4 & G; Whitaker v. Alameda County Superior Court, 12 F.3d 1111 (9th Cir. 1993), aff'g No. C-925 1821 EFL (N.D. Cal. Aug. 22, 1992) (order dismissing with prejudice and entering pre-filing order), 6 cert. denied, 513 U.S. 846 (1994).) 7 In this case, plaintiff returns to this Court again challenging the constitutionality of the

8 California vexatious litigant statute. The state-court decision to designate plaintiff a vexatious 9 litigant was a judicial decision, made by both a judge of the Superior Court of California and a panel 10 of the California Court of Appeal. (Exs. A, B & C). The judge making that decision3/ and the judges 11 enforcing that decision enjoy absolute judicial immunity. Further, federal district courts do not have 12 jurisdiction to review state court decisions, including vexatious litigant orders. The decision that 13 plaintiff is a vexatious litigant subject to pre-filing review cannot be appealed in this Court. 14 15 16 17 18 ARGUMENT I. CALIFORNIA'S VEXATIOUS LITIGANT LAW, CODE OF CIVIL PROCEDURE SECTIONS 391 ET SEQ., IS CONSTITUTIONAL. Whitaker's complaint alleges that §§ 391 et seq. is unconstitutional, (Compl. ¶¶ 6, 8, 10, 37,

19 38.1), in particular because "defendant's current judicial procedures under CCP 391.4 are to take 20 plaintiff's property rights (legal complaint) . . . without hearing on the merits." (Compl. ¶ 9, 12.) 21 Neither the California Supreme Court nor the U.S. Supreme Court have ruled on the vexatious

22 litigant statutes, but California courts have uniformly upheld their validity. Taliaferro v. Hoogs, 236 23 Cal.App.2d 521, 527-30 (1965); First Western Development Corp. v. Super. Ct. (Andrisani)212 24 Cal.App.3d 860, 868 (1989). In First Western Development Corp., the state Court of Appeal 25 explained: 26 27 3. This action does not name the trial court judge who decided that the vexatious litigant 28 provisions are appropriate.
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In discussing the provisions of subdivision (b)(2) of section 391, the Taliaferro court held: "The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts. . . . .... Constitutional challenges to the statutory scheme were disposed of in Taliaferro v. Hoogs, in which the court held (1) the vexatious litigant statutes do not unlawfully discriminate against litigants proceeding in propria persona; (2) the statutes do not operate to deprive a litigant of due process of law; and (3) the requirement that security must be furnished by one found a vexatious litigant if there is no reasonable probability he will prevail is not vague or uncertain.

9 First Western Development Corp., 212 Cal.App.3d at 868 (citation omitted). 10 Nothing in the concept of reasonably limiting a private person's power to involuntarily involve

11 others in judicial proceedings is foreign to American constitutional principles. 12 Plaintiff mistakenly relies on Beaudreau v. Superior Court of Los Angeles (1975) 14 Cal.3d

13 448 (hereafter Beaudreau) (See Ex. H.), to support this contention. (Compl. ¶¶ 4, 5, 13, 25, 51.3(c), 14 (d).) Plaintiff's reliance on Beaudreau is misplaced. Contrary to plaintiff's assertions, §§ 391 et 15 seq. satisfies the constitutional requirements set out in Beaudreau. In Beaudreau, the California 16 Supreme Court held that the fundamental notions of due process require that a taking of a person's 17 "right to file a bona fide and potentially meritorious legal claim "must be preceded by a hearing in 18 the particular case in order to determine whether the statutory purpose is promoted by the imposition 19 of the [taking]." See Beaudreau v. Super. Ct. of Los Angeles, 14 Cal.3d. at 460. Where the purpose 20 of the statute is to prevent frivolous lawsuits, "a due process hearing would necessarily inquire into 21 the merit of the plaintiff's action . . ." Id. Section 391 et seq. does just that. 22 Although plaintiff's complaint repeatedly alleges that §§ 391 et seq. takes his "property rights

23 without a hearing on the merits," and thus violates the holding in Beaudreau, (Compl. ¶¶ 4, 5, 13, 24 25), he plainly misstates the statutory language of §§ 391 et seq., which, "explicitly provides for 25 notice and opportunity to be heard before the plaintiff is subjected to any adverse effects of the 26 statute." Wolfe v. George, 385 F. Supp. 1004, 1010 (N.D. Cal. 2005), aff'd, 2007 U.S. App. LEXIS 27 9908 (9th Cir. Apr. 30, 2007). As Judge Armstrong held in the Wolfe case: 28
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Moreover, even when a prefiling order has been entered, there is never a "blanket" prohibition on further filings; a plaintiff deemed to be a vexatious litigant may always file a new action so long as the presiding judge determines that the litigation has merit and has not been filed for the purpose of harassment or delay. Cal. Code Civ. Proc. § 391.7(b). Such determinations are appropriately made on a case-by-case basis. Id. If the plaintiff believes that he has been wrongly denied of the opportunity to pursue meritorious litigation, relief by way of mandamus is immediately available to challenge the presiding judge's abuse of discretion. Cal. Code Civ. Proc. § 1085.

6 Wolfe v. George, 385 F. Supp. at 1010. 7 8 Thus, §§ 391 et seq. provides every individual alleged to be a vexatious litigant with both: 1) an opportunity for a hearing both before he is declared a vexatious litigant who should be

9 subject to pre-filing review and, 10 2) a judicial determination as to each proposed lawsuit by the pre-filing review. See Code Civ.

11 Proc. §§ 391 et seq. No person subject to the state vexatious litigant provisions is denied the 12 opportunity to commence any non-frivolous litigation without due process. See Wolfe v. George, 385 13 F. Supp. at 1010; Code Civ. Proc. §§ 391 et seq. 14 The Beaudreau case arose from the application of Government Code, §§ 947 and 951, which

15 pertained to a since-repealed requirement that plaintiffs suing a public entity post undertakings as 16 security for costs which might be awarded. The plaintiffs in Beaudreau claimed that Gov. Code, §§ 17 947, 951, by requiring plaintiffs to file an undertaking or suffer dismissal of their claim, affected 18 a deprivation of property without a hearing, and therefore violated due process. Beaudreau v.

19 Super. Ct. of Los Angeles, 14 Cal.3d at 454-55. The California Supreme Court agreed with the 20 Beaudreau plaintiffs on two grounds. Id. at 456-60. First, the court found that a legal claim or 21 grievance, assuming that it is a bona fide and potentially meritorious claim, does constitute a 22 "property interest" within the meaning of the due process clause. Id. at 456. Second, the court held 23 that since the statutory procedures subjected the plaintiffs to a taking of property, the statute must 24 satisfy due process by providing for "some form of notice and a hearing" before the requiring of 25 an undertaking on pain of dismissal of the claim. Id. at 458. Gov. Code § 947 was repealed by the 26 Legislature in 1980. Cal. Gov. Code § 947 (repealed 1980). 27 Contrary to plaintiff's assertions, §§ 391 et seq. satisfies the constitutional limits set out in

28 Beaudreau. See id. at 460. Although plaintiff's complaint repeatedly alleges that §§ 391 et seq.
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1 takes plaintiff's "property rights without a hearing on the merits," and thus violates the holding in 2 Beaudreau, (Compl. ¶¶ 4, 5, 13, 25), plaintiff fails to recognize that only non-frivolous claims are 3 cognizable and plainly misstates the statutory language of §§ 391 et seq., which, "explicitly provides 4 for notice and opportunity to be heard before the plaintiff is subjected to any adverse effects of the 5 statute." Wolfe v. George, 385 F. Supp. 1004, 1010 (N.D. Cal. 2005), aff'd, 2007 U.S. App. LEXIS 6 9908 (9th Cir. Apr. 30, 2007); see Cal. Civ. Proc. Code § 391.3 (judge may only require plaintiff 7 to post a security or order dismissal after finding that there is "no reasonable probability that [the 8 plaintiff] will prevail in the litigation against the moving defendant"). 9 California courts have consistently held that the state's vexatious litigant scheme is

10 "constitutional and [does] not deprive a litigant of due process of law." Bravo v. Ismaj, 99 11 Cal.App.4th 211, 222 (2002). Plaintiff's as-applied challenge is precluded by the Rooker-Feldman 12 doctrine, see infra, because he is seeking relief from a prior state court vexatious litigant order. See 13 Bianchi v. Rylaarsdam, 334 F.3d 895, 900-01 (9th Cir. 2003) (Rooker-Feldman doctrine "precludes 14 review of all `state court decisions in particular cases arising out of judicial proceedings even if 15 those challenges allege that the state court's action was unconstitutional."')(citation omitted). 16 17 18 19 II. UNDER THE ROOKER-FELDMAN DOCTRINE, THE DISTRICT COURT LACKS JURISDICTION TO REVIEW STATE COURT JUDGMENTS AND ORDERS. Plaintiff petitions this Court to enjoin the Superior Court of California from maintaining him

20 on the list of litigants subject to the pre-filing provisions that the Legislature has enacted for the 21 protection of the public (See Compl. ¶ 51.3). However, plaintiff has been found to be a vexatious 22 litigant after a contested hearing at which he submitted written opposition and had an opportunity 23 to be heard. (Exs. A & B.) To entertain the prayer for relief in this action would be, in effect, to 24 review the merits of the California Superior Court judgment. Such a review by this Court would 25 violate a basic precept that federal district courts are not appellate tribunals. 26 In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983), the U.S.

27 Supreme Court held that district courts may exercise only original jurisdiction. The U.S. Supreme 28 Court has exclusive jurisdiction to review state decisions. Id. at 486; see also 28 U.S.C. § 1257.
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1 The instant complaint asks this Court to review the state court's conduct of litigation there, but the 2 district court is powerless to do so. See Barry v. Brower, 864 F.2d 294, 300 (3d Cir. 1988) 3 ("principles of federalism preclude a federal court's direct interference with a state court's conduct 4 of state court litigation"). 5 The Court should dismiss this action for lack of subject matter jurisdiction under the

6 Rooker-Feldman doctrine because the relief plaintiff seeks is "inextricably intertwined" with the 7 state court proceedings. D.C. Court of Appeals v. Feldman, 460 U.S. at 486-87. 8 The federal district courts are not appellate tribunals to review state court actions for alleged

9 errors. Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 10 296 (1970). A federal court has no jurisdiction over issues that are "inextricably intertwined" with 11 allegations underlying the judgment of a state court. D. C. Court of Appeals v. Feldman, 460 U.S. 12 at 486-87. The federal district courts lack jurisdiction to review state court judgments. Allah v. 13 Super. Ct. of the State of California, 871 F.2d 887, 890-91(9th Cir. 1989); Rooker v. Fidelity Trust 14 Co., 263 U.S. 413, 415 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. at 486-87. 15 District courts lack jurisdiction to review final state court determinations even when the

16 challenge to the state court decision involves federal constitutional issues. Branson v. Nott, 62 F.3d 17 287, 291-92 (9th Cir. 1995); Worldwide Church of God v. McNair, 805 F.2d 888, 890-891 (9th Cir. 18 1986). Characterizing this action as a general constitutional challenge is of no avail to plaintiff; 19 district courts have no jurisdiction where it appears on the face of the complaint that the action 20 seeks, in effect,"a review of the merits of a state court action." A district court may, sua sponte, 21 even sanction such a frivolous and abusive use of judicial process by awarding attorney fees under 22 42 U.S.C. §1988. Branson v. Nott, 62 F.2d at 292. As the court noted in Louis v. Supreme Ct. of 23 Nevada, 490 F. Supp. 1174, 1179 (D. Nev. 1980): 24 25 26 Louis v. Supreme Ct. of Nevada, 490 F. Supp. at 1179 (citing Rooker v. Fidelity Trust Co., 263 U.S. 27 413) (emphasis added). 28
Notice of hearing; Motion to Dismiss; Points and Authorities; Req. for Judicial Notice Case No. CV08 1618 PJH

If the constitutional issues had been raised in the State Supreme Court and decided erroneously, appeal to the United States Supreme Court would have been the only available procedure to correct the error; the jurisdiction of the U.S. District Courts is original only, and not appellate.

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III. ABSOLUTE JUDICIAL QUASI-IMMUNITY BARS THIS SUIT AGAINST THE STATE OF CALIFORNIA'S JUDICIAL BRANCH. The justices and judges of the state's judicial branch are immune from suit because they enjoy

5 absolute and unqualified immunity for the judicial acts that the complaint alleges. The U.S. 6 Supreme Court long ago established the rule that judges are immune from civil suits arising out of 7 the exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9, 11 (1991); Pierson v. Ray, 386 8 U.S. 547, 554 (1967). Indeed, "it is a general principle of the highest importance to the proper 9 administration of justice that a judicial officer, in exercising the authority vested in him, shall be free 10 to act upon his own conviction, without apprehension of personal consequences to himself." 11 Bradley v. Fisher, 80 U.S. 335, 346 (1872). Judges are absolutely immune from liability for 12 damages for their judicial acts, "even when such acts are in excess of their jurisdiction, and are 13 alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. at 356; 14 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) In Crooks v. Maynard, 913 F.2d 699, 701 15 (9th Cir. 1990), the Ninth Circuit cites Stump v. Sparkman for the proposition that, in this context, 16 jurisdiction is to be broadly construed. In the instant case, plaintiff does not, and cannot truthfully, 17 allege anything other than that the judges he is suing have applied the state's vexatious litigant 18 provisions, as is their duty. 19 20 21 22 The State, its agencies and its judicial officers in their official capacities are immune from suit IV. THE ELEVENTH AMENDMENT IS A FURTHER BAR TO THIS SUIT AGAINST THE STATE AND ITS JUDICIARY.

23 in this Court by reason of the Eleventh Amendment of the United States Constitution. The Eleventh 24 Amendment bars such suits in federal court unless the defendant has waived immunity or Congress 25 has exercised its power under the Fourteenth Amendment to override that immunity. Will v. 26 Michigan Dept. of State Police, 491 U.S. 58, 66 (1967). The Eleventh Amendment provides: 27 28 The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
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1 U.S. Const. amend. XI. 2 The Eleventh Amendment bar applies to suits seeking injunctive or declaratory relief against

3 a state or its agencies as well as to suits seeking damages. Alabama v. Pugh, 438 U.S. 781, 782 4 (1973). In Alabama v. Pugh, the State of Alabama and its Department of Corrections maintained 5 that a mandatory injunction against them was unconstitutional because the Eleventh Amendment 6 prohibits federal courts from entertaining suits against states and their agencies. Id. 7 The Eleventh Amendment bars suits that seek either damages or injunctive relief against a state,

8 an arm of a state, or a state's instrumentalities or agencies. Durning v. Citibank, N.A., 950 F.2d 9 1419, 1422-23 (9th Cir. 1991). Thus, the State, the state courts, and the judges of the state courts 10 in their official capacities are entitled to Eleventh Amendment immunity. Austin v. State Indus. 11 Insur. Sys., 939 F.2d 676, 677 (9th Cir. 1991); Franseschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 12 1994); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). 13 The amendment clearly prohibits actions for damages against an official's office, for they are in 14 reality suits against the state. Stivers v. Pierce, 71 F.3d. 732, 749 (9th Cir. 1995). 15 In O'Connor v. Nevada, 507 F.Supp. 546, 550 (D.Nev., 1981), aff'd 686 F.2d 749 (9th Cir.

16 1982), cert. denied 459 U.S. 1071 (1982), the Nevada Supreme Court was recognized as an arm of 17 the state itself and dismissed on Eleventh Amendment grounds. The Courts of California are 18 similarly an arm of the state itself under the California Constitution, and therefore, immune from this 19 lawsuit. 20 21 CONCLUSION The complaint does not state a claim upon which relief can be granted. This Court is without

22 jurisdiction to hear what is, in effect, plaintiff's long-delayed appeal from a state court judgment. 23 Nothing in the complaint gives reason to believe that it could be amended to state a claim, and it 24 therefore should be dismissed without leave to amend. 25 26 27 28
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Dated: June 25, 2008

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Respectfully submitted, 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
Notice of hearing; Motion to Dismiss; Points and Authorities; Req. for Judicial Notice Case No. CV08 1618 PJH

/s/ Tom Blake TOM BLAKE Deputy Attorney General Attorneys for Defendants, The Honorable David Ballati; The Honorable Yolanda Northridge; The Honorable Frank Roesch; the Honorable Carl Morris; The Honorable George C. Hernandez, Jr.; Superior Court of California, County of Alameda; Superior Court of California, County of San Francisco

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: WHITAKER, Fred A. v. Alameda County Superior Court, et al.

C-08-1618-BZ

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On June 25, 2008, I served the attached NOTICE OF HEARING; MOTION TO DISMISS COMPLAINT [RULE 12(B) F.R.C.P.]; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; REQUEST FOR JUDICIAL NOTICE by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Fred A. Whitaker 872 69th Avenue Oakland. CA 94621

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 25, 2008, at San Francisco, California.

Jacinto P. Fernandez, Jr. Declarant
40266646.wpd

/s/ Jacinto P. Fernandez, Jr. Signature