Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 1 of 22

1 Kevin M. McCormick CSBN 115973

BENTON, ORR, DUVAL & BUCKINGHAM
2 A PROFESSIONAL CORPORATION
39 North California Street
3 Post Office Box 1178
Ventura, California 93002
4 Telephone: (805) 648-5111
Facsimile: (805) 648-7218
5 E-mail: kmccormick@bentonorr.com
6 Attorneys for Defendant, The Supreme Court
of California
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11
12 RICHARD I. FINE, CASE NO. CV 10-00048 JFW (CW)
13 Plaintiff, NOTICE
SUPREME
OF DEFENDANT, THE
COURT OF
14 v. CALIFORNIA’S NOTICE OF
MOTION AND MOTION TO
15 STATE BAR OF CALIFORNIA, D ISMISS COMPLAINT;
16 BOARD OF GOVERNORS OF THE AUTHORITIES OF
MEMORANDUM
IN
POINTS AND
SUPPORT
STATE BAR OF CALIFORNIA, THEREOF
17 SCOTT DREXEL, CHIEF TRIAL
COUNSEL OF THE STATE BAR OF [Federal Rules of Civil Procedure,
18 CALIFORNIA, AND THE SUPREME Rules 12(b)(1) and (6)]
COURT OF CALIFORNIA (ONLY AS
19 A NECESSARY PARTY), Date: June 1, 2010
Time:
Defendants. Ctrm: 10:00 a.m.
20 640
255 E. Temple Street
21 Los Angeles, California
22 M. Judge: Hon. Carla Woerhle
23 NOTICE IS HEREBY GIVEN that on June 1, 2010 at 10:00 a.m., or as soon
24 thereafter as the parties may be heard, in Courtroom 640 of the United States District
25 Court, Central District, Western Division, located at 255 E. Temple Street, Los
26 Angeles, California, defendant, the Supreme Court of California, will and hereby does
27 move this court pursuant to Federal Rules of Civil Procedure (“F.R.Civ.P.”),
28
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1 Rules12(b)(1) & (6), for dismissal of plaintiff in pro se, Richard I. Fine’s (“Fine”)
2 Complaint on the following grounds:
3 • This court lacks subject matter jurisdiction of the matters alleged in
4 Plaintiff’s Complaint as against the Court; and
5 • Plaintiff’s Complaint fails to set forth any cognizable claim upon which
6 relief may be granted as against the Court.
7 This Motion is based upon the Notice of Motion, the accompanying
8 Memorandum of Points and Authorities, the concurrently filed Request for Judicial
9 Notice (“RJN”), all pleadings and papers on file in this action and upon such other
10 matters as the court may allow to be presented at the time of the hearing on this
11 matter.
12 Pursuant to CD CA, L.R. 7-3 and 16-12(c), regarding pro se plaintiffs, no
13 prefiling conference is required prior to the filing of this Motion to Dismiss.
14
15 Dated: May 5, 2010 BENTON, ORR, DUVAL &BUCKINGHAM
16
17 By: /s/ Kevin M. McCormick
Kevin M. McCormick
18 Attorneys for Defendant, the Supreme Court
of California
19
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1 TABLE OF CONTENTS
2
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . 3
3
I. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . 3
4
II. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5
III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6
A. This Court Lacks Subject Matter Jurisdiction of Fine’s
7 Claims for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8 1. The State Court Decision Disbarring Fine re Res Judicata
and Cannot be Collaterally Attacked . . . . . . . . . . . . . . . . . . . 6
9
2. Fine’s Claims for Relief Are Barred by the Rooker-Feldman
10 Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11 B. Fine’s Complaint Fails to Allege Sufficient Facts to State
a Cognizable Legal Theory Against the Court, Let Alone
12 Any Other Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13
1. Fine Cannot State a Cognizable Claim for Relief as
14 Judicial Officers Who Receive Local Judicial Benefits
Do Not Have a Direct, Personal, Substantial, Pecuniary
15 Interest in Matters Before Them Requiring Recusal . . . . . . 10
16 2. The Eleventh Amendment Bars Fines's 42 U.S.C. §1983 Claim
Against the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17
3. Fine’s Claims for Injunctive Relief is Barred by 42 U.S.C.
18 §§1983 and 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19 4. Fine’s Prayer for Attorney’s Fees and Costs is Barred
by Absolute Judicial Immunity. . . . . . . . . . . . . . . . . . . . . . .15
20
a. The First Prong of Absolute Judicial Immunity is
21 Satisfied Because All of the Acts Alleged by Fine Were
Performed by the Court in its Official Capacity . . . . . 16
22
23 b. The Second Prong of Absolute Judicial Immunity is
Satisfied Because the Acts Alleged Were Performed in
24 Matters Which Were Before the Court . . . . . . . . . . . 16
25
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
26
27
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1 TABLE OF AUTHORITIES
2 Federal Cases
3 Balistreri v. Pacifica Police Dept.,
901 F.2d 696 (9th Cir 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,9
4
Barren v. Harrington, th
5 152 F.3d 1193 (9 Cir. 1998), cert. den., 525 U.S. 1154 (1999) . . . . . . . . 14
6 Bauers v. Heisel,
361 F.2d 581 (3d Cir. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7
Brown v. Felsen,
8 422 U.S. 127, 131(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9 Bureerong v. Uvawas,
922 F.Supp. 1450(C.D.Cal.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10
Caperton v. A.T. Massey Coal Co., Inc.,
11 ___U.S.____ 129 S.Ct. 2252 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12
12 Cato v. United States, th
70 F.3d 1103 (9 Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13
District of Columbia Court of Appeals v. Feldman,
14 460 U.S. 462, 103 S.Ct. 1303 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8
15 Emrich v. Touche Ross & Company,
846 F.2d 1190, 1194 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
16
Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
17 544 U.S. 280, 125 S.Ct. 1517 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 Federated Department Stores v. Mottie,
452 U.S. 394 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
19
Forrester v. White,
20 484 U.S. 219, 108 S.Ct. 538 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
21 Franceschi v. Schwartz,
57 F.3d 828 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
22
Franklin v. Murphy,
23 745 F.2d 1221 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
24 Hansen v. Black,
885 F.2d 642 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
25
Johnson v. Duffy,
26 588 F.2d 740 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
27
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1 Kentucky v. Graham,
473 U.S. 159, 105 S.Ct. 3099 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2
Kruse v. Hawaii,
3 68 F.3d 331 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Lance v. Dennis,
546 U.S. 459, 126 S.Ct. 1198, 1201 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 9
5
Leer v. Murphy,
6 844 F.2d 628 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7 McHenry v. Renne,
84 F.3d 1172 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8
Meek v. County of Riverside,
9 183 F.3d 962 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10 Mireles v. Waco,
502 U.S. 9, 112 S.Ct. 286 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11
Mitchell v. Forsyth,
12 472 U.S. 511, 105 S.Ct. 2806, 2815 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 15
13 Neitzke v. Williams,
490 U.S. 319, 109 S.Ct. 1827 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
14
Pierson v. Ray,
15 386 U.S. 547, 87 S. Ct. 1213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16
16 Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S.Ct. 149, 150 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
17
Sever v. Alaska Pulp Corp.,
18 978 F.2d 1529 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19 Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
20
Thompson v. City of Los Angeles,
21 885 F.2d 1439, 1443 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
22 Viqueira v. First Bank,st
140 F.3d 12 (1 Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
23
West v. Atkin,
24 487 U.S. 42, 108 S.Ct. 2250 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25 Worldwide Church of God. v. McNair,
805 F.2d 888 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
26
27
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1 Federal Statutes and Rules

2 42 U.S.C.§1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14
3 42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Federal Rules of Civil Procedure, Rule 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Federal Rules of Civil Procedure, Rule 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6 Federal Rules of Civil Procedure, Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7 Federal Rules of Civil Procedure, Rule 12(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8 State Cases
9 Sturgeon v. County of Los Angeles,
167 Cal.App.4th 630 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,11,12
10
State Statutes and Rules
11
California Code of Civil Procedure
12
Section 526a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13
California Government Code
14
Section 68220-68222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15
Section 77000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16
Law Review Articles
17
Rooker-Feldman, From The Ground Up
18 74 Notre Dame L.Rev. 1129, 1135 (1999) . . . . . . . . . . . . . . . . . . . 4,5,6,8,9
19
20
21
22
23
24
25
26
27
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. FACTUAL AND PROCEDURAL BACKGROUND
3 Fine brings the present action against defendants, the Supreme Court of
4 California (the “Court”) and the State Bar of California, et al, arising from his
5 disbarment effective March 13, 2009.1 By way of his allegations, Fine charges the
6 Court, among others, with acts of fraud and moral turpitude (in connection with
7 the proceedings that ultimately led to his disbarment) on the basis that the Court
8 and other judicial officers received local judicial benefits.
9 As this court is well aware, Fine has a longstanding history of challenging
10 state and federal judicial officers who receive, or have received, local judicial
11 benefits - but only when that particular judicial officer ruled adversely to Fine or
12 his clients. When Fine prevailed in matters before judicial officers who received
13 such benefits, he remained curiously silent on the issue.
14 Notwithstanding Fine’s multiple and unsuccessful attempts to discredit
15 both state and federal judicial officers,2 he again, and in bad faith, raises the
16 specter of the payment of “local judicial benefits” as a purportedly valid basis to
17
18
1
RJN, Exhibit “B,” Records from the State Bar of California reflecting Fine’s
19
disbarment effective March 13, 2009.
20
2
Although Fine trumpets the various actions that he has filed against judicial
21 officers as evidence of his successful prosecution of alleged judicial corruption, he
22 has never prevailed in any attempt to disqualify a judicial officer (state or federal)
based solely on the receipt of “local judicial benefits.” Complaint, ¶¶24-25. See also
23
RJN, Exhibit “A,” pp. 8-15 (outlining Fine’s numerous and unsuccessful attempts to
24 disqualify judicial officers on the basis of receipt of local judicial benefits).
Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los
25
Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The
26 Sturgeon decision specifically found that the payment of local judicial benefits was
27
neither a waste of taxpayer money nor a basis to seek recusal of a judicial officer
receiving such benefits. Id. at 637-39.
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1 overturn the final decision of the Court disbarring him from the practice of law in
2 the State of California.3
3 The crux of Fine’s Complaint alleges that the root of his disbarment arose
4 from his crusade to expose claimed illegal and unconstitutional payment of “local
5 judicial benefits” by the County of Los Angeles to Superior Court of California,
6 County of Los Angeles judicial officers.4
7 Fine goes on to claim that due to the failure of judicial officers to disclose
8 the receipt of local judicial benefits, every previous order and/or judgment entered
9 against Fine was the product of a void order as the judicial officers should have
10 recused themselves. Fine then concludes that the failure of the judicial officers to
11 recuse themselves voided all subsequent orders and/or judgments ab initio.5
12 By way of this action, Fine maliciously and disingenuously seeks to
13 impugn the integrity of the Court, and other judicial officers, by claiming that the
14 Court, among others, sought to fraudulently and corruptly prosecute Fine because
15 of Fine’s claim that they had acted criminally by accepting local judicial benefits.6
16
3
17 As is set forth in more detail at section III., infra, Fine’s petition to the
Supreme Court of the United States to overturn the decision disbarring him was
18
denied October 5, 2009, thereby barring this action under the principles of Res
19 Judicata and the Rooker-Feldman Doctrine. The decision of disbarment of the
20
Supreme Court of California is now final and this court, being one of original
jurisdiction, lacks subject matter jurisdiction to act on Fine’s claims. See RJN,
21 Exhibit “C,” ( Supreme Court docket reflecting that Fine’s Petition for Certiorari was
22 denied on October 5, 2009).
4
23 Complaint, ¶¶2-3.
24 5
Complaint, ¶¶31-42; 44-47.
25 6
Initially, Fine claims that he named the Court for the sole purpose of it being
26 a “necessary party.” (Complaint, ¶16.) Fine’s true intent as to the naming of the
27
Court is evidenced by the multiple allegations of judicial corruption based upon
receipt of local judicial benefits and especially those leveled against Chief Justice
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1 Fine’s Complaint must be dismissed on the basis that this court lacks
2 subject matter jurisdiction as the Complaint is barred under Res Judicata and/or
3 the Rooker-Feldman doctrine. Alternatively, the Complaint must be dismissed as
4 it fails to set forth any legally cognizable claim for relief against the Court based
5 upon the receipt of local judicial benefits.
6 II. STANDARD OF REVIEW
7 A complaint may be dismissed, pursuant to F.R.Civ.P, Rule 12(b)(1), for
8 lack of subject matter jurisdiction. Neitzke v. Williams, 490 U.S. 319, 327 fn.6,
9 109 S.Ct. 1827 (1989) (patently insubstantial complaint may be dismissed under
10 Rule 12(b)(1) for lack of subject matter jurisdiction). Moreover, “[w]henever it
11 appears by suggestion of the parties or otherwise that the court lacks jurisdiction
12 of the subject matter, the court shall dismiss the action.” F.R.Civ.P., Rule
13 12(h)(3). A challenge to the court’s subject matter jurisdiction may be raised at
14 any time, including sua sponte by the court. Emrich v. Touche Ross & Company,
15 846 F.2d 1190, 1194, fn.2 (9th Cir. 1988).
16 Additionally, a complaint may be dismissed, pursuant to F.R.Civ.P., Rule
17 12(b)(6), for failure to state a claim for relief based on either a lack of a viable
18 legal theory or insufficient facts alleged under a cognizable legal theory.
19 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir 1990). F.R.Civ.P.,
20 Rule 8(a) requires that a complaint must contain a “short and plain” statement of
21 the claim showing that the plaintiff is entitled to relief. F.R.Civ.P., Rule 8(a)
22 further requires that “[e]ach averment of a pleading shall be simple, concise, and
23 direct.” A complaint may also be dismissed for failure to state a claim if it
24
25
26 George and Associate Justices Chin, Corrigan, Kennard, and Moreno. (Complaint,
27
¶¶21-24; 27-29; 51; 65-67; 75-80; ) Fine is simply trying to relitigate an issue that
he has lost time and time again.
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1 discloses some fact that will defeat the claim.7 Franklin v. Murphy, 745 F.2d
2 1221, 1228-29 (9th Cir. 1984).
3 III. ARGUMENT
4 A. This Court Lacks Subject Matter Jurisdiction of Fine’s Claims
5 for Relief
6 The party asserting subject matter jurisdiction has the burden of proving
7 that the court has jurisdiction over the claims. Viqueira v. First Bank, 140 F.3d
8 12, 16 (1st Cir. 1998). Moreover, federal district courts are courts of original
9 jurisdiction and may not serve as appellate tribunals to review errors allegedly
10 committed by state courts. District of Columbia Court of Appeals v. Feldman, 460
11 U.S. 462, 476, 103 S.Ct. 1303, 1311(1983); Rooker v. Fidelity Trust Co., 263 U.S.
12 413, 415-16, 44 S.Ct. 149, 150 (1923) (the Rooker and Feldman decisions have
13 become known as the Rooker-Feldman doctrine). This Court lacks subject matter
14 jurisdiction as set forth below.
15 1. The State Court Decision Disbarring Fine is Res Judicata
16 and Cannot Be Collaterally Attacked
17 Fine’s claim for relief against the Court is barred under Res Judicata as
18 Fine now seeks federal district court review of a final decision of the Supreme
19 Court of the State of California after review was denied by the United States
20 Supreme Court. As stated by the Supreme Court in Brown v. Felsen, 442 U.S.
21 127, 131, 99 S.Ct. 2205 (1979):
22 “Res judicata ensures the finality of decisions. Under res judicata, ‘a
23 final judgment on the merits bars further claims by parties or their
24 privies based on the same cause of action.’ (Citation omitted). Res
25
7
26 As stated, Fine’s attempt to gain United States Supreme Court review of the
27
March 25, 2009 Order disbarring him was unsuccessful making that order final and
non-reviewable. That fact alone bars this lawsuit.
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1 judicata prevents litigation of all grounds for, or defenses to,

2 recovery that were previously available to the parties, regardless of
3 whether they were asserted or determined in the prior proceeding.
4 (Citations omitted). Res judicata thus encourages reliance on judicial
5 decisions, bars vexatious litigation, and frees the courts to resolve
6 other disputes.” (Emphasis added.)8
7 The Supreme Court further elaborated on Res Judicata in Federated
8 Department Stores v. Mottie, 452 U.S. 394, 401-02, 101 S.Ct. 2424 (1981)
9 wherein it stated:
10 “This Court has long recognized that ‘[p]ublic policy dictates that
11 there be an end of litigation; that those who have contested an issue
12 shall be bound by the result of the contest, and that matters once
13 tried shall be considered forever settled as between the parties.’
14 (Citation omitted.) We have stressed that ‘[the] doctrine of res
15 judicata is not a mere matter of practice or procedure inherited from
16 a more technical time than ours. It is a rule of fundamental and
17 substantial justice, ‘of public policy and of private peace,’ which
18 should be cordially regarded and enforced by the courts....’
19 (Citation omitted.) ‘The predicament in which respondent finds
20 himself is of his own making ....[W]e cannot be expected, for his
21 sole relief, to upset the general and well-established doctrine of res
22 judicata, conceived in the light of the maxim that the interest of the
23 state requires that there be an end to litigation-a maxim which
24 comports with common sense as well as public policy.’”
25
8
26 It is respectfully submitted that Fine’s continuing attack on the state and
27
federal judiciary for receipt of local judicial benefits has risen to the level of
vexatious litigation and should be treated as such.
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1 The decision of the Court in disbarring Fine has become final and is not
2 subject to further review or collateral attack under Res Judicata. Fine’s Complaint
3 is barred and should be dismissed.
4 2. Fine's Claims for Relief Are Barred by the
5 Rooker-Feldman Doctrine
6 Under the Rooker-Feldman doctrine, “[t]he United States District Court, as
7 a court of original jurisdiction, has no authority to review the final determinations
8 of a state court in judicial proceedings.” Worldwide Church of God. v. McNair,
9 805 F.2d 888, 890 (9th Cir. 1986). “[T]he proper court in which to obtain such
10 review is the United States Supreme Court.” Id. (citing District of Columbia
11 Court of Appeals v. Feldman, supra, 460 U.S. 462, 103 S.Ct. at 1311).9
12 “This doctrine applies even when the challenge to the state court decision
13 involves federal constitutional issues.” Id. (citing District of Columbia Court of
14 Appeals v. Feldman, supra, 460 U.S. at 482-86 & n. 16, 103 S.Ct. at 1314-17 & n.
15 16). The district court may not consider constitutional claims if they are
16 “inextricably intertwined” with the state court’s decision in a particular case.
17 District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. at 483-84, n.
18 16, 103 S.Ct. at 1315, n. 16. The purpose behind the foregoing is to allow “the
19 state the first opportunity to consider a state statute or rule in light of federal
20 constitutional arguments.” Id. “In other words, Rooker-Feldman will bar not only
21 federal issues actually raised in the state court, but also those inextricably
22 intertwined issues that could have been raised there.” Barry Friedman & James E.
23 Gaylord, Rooker-Feldman, From the Ground Up, 74 Notre Dame L.Rev. 1129,
24 1135 (1999).
25 Moreover, the United States Supreme Court held the proper application of
26
9
27
As stated, Fine sought and was denied review of his disbarment by the
Supreme Court of the United States on October 5, 2009. See RJN, Exhibit “C.”
28 8
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
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1 the Rooker-Feldman doctrine is to a federal lawsuit "brought by [a] state court

2 loser[] complaining of injuries caused by [a] state-court judgment[]." Exxon Mobil
3 Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517 (2005);
4 accord Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 1201 (2006).
5 Simply stated, the basis of the Complaint, as it relates to the Court, is that a
6 majority of its members somehow acted unlawfully in disbarring Fine. Fine
7 obviously disagrees with this result and now seeks to have this adverse state court
8 decision reviewed by the federal district court, notwithstanding a previous denial
9 of his petition for certiorari to the Supreme Court of the United States.
10 The decision of the Court in disbarring Fine has become final and is not
11 subject to further review or collateral attack under the Rooker-Feldman doctrine.
12 Fine’s Complaint is barred and should be dismissed.
13 B. FINE’S COMPLAINT FAILS TO ALLEGE SUFFICIENT
14 FACTS TO STATE A COGNIZABLE LEGAL THEORY
15 AGAINST THE COURT, LET ALONE ANY OTHER
16 DEFENDANT
17 A motion to dismiss is proper where there is either a “lack of a cognizable
18 legal theory” or “the absence of sufficient facts alleged under a cognizable legal
19 theory.” Balistreri v. Pacifica Police Dept., supra, 901 F.2d 696, 699. The
20 Complaint is subject to dismissal where, as here, “one cannot determine from the
21 complaint who is being sued, for what relief, and on what theory, with enough
22 detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
23 While pro se pleadings are liberally construed, a pro se action should be
24 dismissed if, after careful consideration, the court concludes that the allegations of
25 the complaint disclose that no cognizable claim can be stated and that amendment
26 would be futile. Cato v. United States, 70 F.3d 1103, passim (9th Cir. 1995). The
27 court need not accept as true unreasonable inferences, unwarranted deductions of
28 9
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 14 of 22

1 fact, or conclusory legal allegations cast in the form of factual allegations.

2 Bureerong v. Uvawas, 922 F.Supp. 1450, 1462 (C.D.Cal.1996).
3 1. Fine Cannot State a Cognizable Claim for Relief as
4 Judicial Officers Who Receive Local Judicial Benefits Do
5 Not Have a Direct, Personal, Substantial, Pecuniary
6 Interest in Matters Before Them Requiring Recusal
7 Fine contends that the mere receipt of local judicial benefits, in and of
8 itself, establishes that judicial officers receiving such benefits are required to
9 recuse themselves from litigation involving the County of Los Angeles.10 Fine
10 bases this contention on the notion that the receipt of local judicial benefits
11 constituted a direct, personal, substantial, pecuniary interest in the outcome of the
12 litigation. This contention is the foundation of Fine’s claim that he was somehow
13 the subject of a fraud and wrongfully disbarred. This argument has no basis in fact
14 or law.
15 Fine will no doubt argue that the holding in Caperton v. A.T. Massey Coal
16 Co., Inc., ___U.S.___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), somehow
17 supports his contention regarding the payment of local judicial benefits. In
18 Caperton, the United States Supreme Court dealt with an extreme example of a
19 judicial election campaign contribution resulting is an objectively verifiable
20 appearance of judicial bias. At issue was a $3 million dollar contribution made by
21 a state court litigant to the election campaign of a practicing attorney in an effort
22
23 10
By Fine’s reasoning, in any California state court matter where the State
24 itself is a party, any state court judicial officer would be automatically disqualified
and must recuse themselves as the state legislature is responsible for setting and
25
paying the judicial officer’s compensation. Taking this argument to the extreme, Fine
26 appears to contend that in any federal matter where the United States is a party results
27
in the automatic disqualification of any federal jurist as their compensation is set and
paid by the United States government. This would be an absurd result.
28 10
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 15 of 22

1 to elect that individual to a seat on the West Virginia Supreme Court. The state
2 court litigant knew that it would seek review of the $50 million trial court verdict
3 rendered against it and made the contribution for the purpose of substantially
4 increasing the chances of the recipient of the contribution to be elected to that
5 reviewing court. Ultimately, though by a narrow margin, the challenger was
6 elected to the West Virginia Supreme Court. Notwithstanding challenges by the
7 victorious state court litigant for disqualification, the motions were denied and the
8 newly elected jurist presided over the appeal of the $50 million verdict, ultimately
9 voting with the majority to reverse the judgment entered against the party that had
10 made the $3 million election campaign contribution.
11 In reviewing the fact of the campaign contribution, the amount the
12 contribution bore in relation to all other contributions made for the benefit of the
13 challenger, and the entire campaign budget of the incumbent justice, the Supreme
14 Court found that the $3 million contribution was so disproportionate so as to
15 objectively establish that the newly elected justice was biased and should have
16 recused himself from the matter. The Supreme Court formulated the test for bias
17 in that circumstance as follows:
18 “The inquiry is an objective one. The Court asks not whether the
19 judge is actually, subjectively biased, but whether the average judge
20 is his position is ‘likely’ to be neutral, or whether there is an
21 unconstitutional ‘potential for bias.’” Id. at 129 S.Ct. 2262.
22 In the matter of Sturgeon v. County of Los Angeles, supra, 167 Cal.App.4th
23 630, the California Court of Appeal held that the payment of local judicial benefits
24 by the County of Los Angeles to judicial officers of the Superior Court of
25 California, County of Los Angeles was not unconstitutional per se. In so holding,
26 the California Court of Appeal emphasized that:
27 • The payment of local judicial benefits by the County of Los Angeles
28 11
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 16 of 22

1 was unconstitutional only because the duty to set compensation for

2 state judicial officers was a non-delegable duty imposed upon the
3 state legislature;
4 • Local judicial benefits were statutorily authorized by the Lockyer-
5 Isenberg Trial Court Funding Act of 1997, California Government
6 Code, section 77000, et seq.; and
7 • The argument that the payment of local judicial benefits represented
8 an unconstitutional gift of public funds under the California
9 Constitution or represented a waste of public funds pursuant to
10 California Code of Civil Procedure, section 526a was without merit.
11 Id. at 635, 642-630.
12 Based upon the holdings of the Caperton and Sturgeon decisions, and the
13 subsequent enactment of California Senate Bill 11,11 it is clear that Fine’s
14 contention that a judicial officer’s receipt of local judicial benefits as creating an
15 objective probability of actual bias is without either factual or legal support. The
16 character of the benefits do not bear any resemblance to the facts of the Caperton
17 decision and simply do not provide a basis for recusal of the judicial officer
18 receiving those benefits.
19
20
11
Effective May 21, 2009, and subsequent to the Sturgeon decision, the
21 California legislature enacted Senate Bill 11 which explicitly extended existing
22 county-provided benefits for judges, establishing standards, and specifically
providing as follows:
23
"Notwithstanding any other law, no governmental entity, or officer or employee
24 of a governmental entity, shall incur any liability or be subject to prosecution or
disciplinary action because of benefits provided to a judge under the official action
25
of a governmental entity prior to the effective date of this act on the ground that those
26 benefits were not authorized under the law." See 2009 Cal. Legis. Serv., 2nd Ex.
27
Sess., Chap. 9 (S.B. 11). Senate Bill 11 has since been codified as California
Government Code, sections 68220-68222.
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DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 17 of 22

1 The receipt of local judicial benefits does not in any manner support or
2 corroborate Fine’s allegation that his disbarment was the result of fraud
3 perpetuated on and/or participated in by the Court. Fine cannot state a cognizable
4 claim for relief on the basis of the receipt of local judicial benefits and his
5 Complaint should be dismissed.
6 2. The Eleventh Amendment Bars Fines’s 42 U.S.C. §1983
7 Claim Against the Court
8 Fine simply names the Court as a party defendant in this action. The
9 Eleventh Amendment to the United States Constitution bars §1983 suits against
10 States. It has been stated "that ‘States or governmental entities that are considered
11 "arms of the state" for Eleventh Amendment purposes' are not persons within the
12 meaning of 1983." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th
13 Cir. 1989). Judges acting in their official capacity are considered "arms of the
14 state". Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995). Moreover,
15 state officials may not be sued for damages in their official capacities. Leer v.
16 Murphy, 844 F.2d 628 (9th Cir. 1988).
17 Further, "[p]ersonal-capacity suits seek to impose personal liability upon a
18 governmental official for actions he takes under color of law." Kentucky v.
19 Graham 473 U.S. 159, 165, 105 S.Ct. 3099, 3105 (1985). Conversely,
20 "[o]fficial-capacity suits . . . ‘generally represent only another way of pleading an
21 action against an entity of which the officer is an agent.'" Id.
22 To state a civil rights claim against an individual defendant, a plaintiff must
23 allege facts showing the defendant's personal involvement in the constitutional
24 deprivation or a causal connection between the defendant's alleged wrongful
25 conduct and the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642,
26 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). "A
27 plaintiff must allege facts, not simply conclusions, that show an individual was
28 13
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 18 of 22

1 personally involved in the deprivation of his civil rights." Barren v. Harrington,

2 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).
3 Fine simply fails to allege any fact establishing the personal involvement of
4 any member of the Court in the alleged deprivation of his civil rights. As a result,
5 Fine's Complaint against the Court is barred and must be dismissed.
6 3. Fine’s Claim for Injunctive Relief is Barred by 42 U.S.C. §§
7 1983 and 1985
8 42 U.S.C. § 1983 provides in relevant part:
9 “[I]n any action brought against a judicial officer for an act or
10 omission taken in such officer’s judicial capacity, injunctive relief
11 shall not be granted unless a declaratory decree was violated or
12 declaratory relief was unavailable.”
13 Specifically, to establish a claim for injunctive relief under Section 1983, a
14 plaintiff must establish two elements: 1) a violation of a right secured by the
15 Constitution or laws of the United States; and 2) that the violation was committed
16 by a person acting under color of state law. See, e.g., West v. Atkin, 487 U.S. 42,
17 48, 108 S.Ct. 2250 (1988). “To obtain injunctive relief, a reasonable showing of a
18 sufficient likelihood that plaintiff will be injured again is necessary.” Kruse v.
19 Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and alteration
20 omitted.) Under this provision, Fine cannot seek injunctive relief as there are no
21 allegations of any declaratory decree which has been violated or that declaratory
22 relief was unavailable to him. Fine sought United States Supreme Court review of
23 his disbarment which was denied.
24 To establish a claim under Section 1985(3), Fine must demonstrate four
25 elements: 1) a conspiracy 2) for the purpose of depriving a person of equal
26 protection of the laws; 3) an act in furtherance of the conspiracy; and that 4)
27 deprives a person of a legally protected right. Sever v. Alaska Pulp Corp., 978
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DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
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 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 19 of 22

1 F.2d 1529, 1536 (9th Cir. 1992).

2 Fine has failed to demonstrate a substantial likelihood that he will be injured
3 in the future by any act on the part of the named defendants (the complained of
4 acts have already occurred) and all that he has alleged against the defendants are
5 acts occurring during valid state court proceedings resulting in his disbarment.
6 Based upon the foregoing, Fine’s Complaint fails to set forth any cognizable
7 claim for relief, injunctive or otherwise, and should be dismissed.
8 4. Fine’s Prayer for Attorney’s Fees and Costs is Barred by
9 Absolute Judicial Immunity
10 “A long line of United State Supreme Court’s precedents acknowledges
11 that, generally, a judge is immune from a suit for money damages.” Mireles v.
12 Waco, 502 U.S. 9, 112 S.Ct. 286 (1991). “Like other forms of official immunity,
13 judicial immunity is an immunity from suit, not just from ultimate assessment of
14 damages.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985).
15 Further, the Ninth Circuit has held that subordinate state court officers (such as
16 court commissioners) enjoy judicial immunity. Meek v. County of Riverside, 183
17 F.3d 962 (9th Cir. 1994); Franceschi v. Schwartz, supra, 57 F.3d 828. Judicial
18 immunity is a defense to an action under 42 U.S.C.§1983. See Bauers v. Heisel,
19 361 F.2d 581 (3d Cir. 1966), and cases cited therein; Pierson v. Ray, 386 U.S. 547,
20 87 S. Ct. 1213 (1967).
21 The United States Supreme Court, in Stump v. Sparkman, 435 U.S. 349,
22 362, 98 S.Ct. 1099 (1978), made clear that "whether an act by a judge is a 'judicial'
23 one relate[s] to the nature of the act itself, i.e., whether it is a function normally
24 performed by a judge, and to the expectations of the parties, i.e., whether they
25 dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 1108; see
26 also Forrester v. White, 484 U.S. 219, 227-229, 108 S.Ct. 538 (1988).
27
28 15
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 20 of 22

1 It is a judicial officer’s duty to decide all cases within the court’s

2 jurisdiction that are brought before that officer, including controversial cases that
3 arouse the most intense feelings in the litigants. Errors may be corrected on
4 appeal, but the judicial officer should not have to fear that unsatisfied litigants
5 may hound the court with litigation charging malice or corruption. Imposing such
6 a burden on the court and its judicial officers would contribute not to principled
7 and fearless decision making, but lead to intimidation. Pierson v. Ray, supra, 386
8 U.S. at 554, 87 S.Ct. at 1218.
9 a. The First Prong of Absolute Judicial Immunity is
10 Satisfied Because All of The Acts Alleged by Fine
11 Were Performed by the Court in its Official Capacity
12 Fine admits that the Court acted in its official capacity during the pendency
13 of the disbarment proceedings thus establishing the first prong for judicial
14 immunity is satisfied.
15 b. The Second Prong of Absolute Judicial Immunity is
16 Satisfied Because the Alleged Acts Were Performed
17 in Matters Which Were Before the Court.
18 Fine admits that the alleged acts occurred in matters before state courts,
19 meeting the second prong of the immunity inquiry. As a result, Fine’s claim for
20 recovery of attorney’s fees and costs is barred by absolute judicial immunity.
21 V. CONCLUSION
22 Based upon the foregoing, it is respectfully submitted that the Complaint be
23 dismissed with prejudice and that this court find that any further litigation brought
24 by Fine regarding the receipt of local judicial benefits be declared vexatious in
25 nature and subject to summary dismissal.
26 /////
27 /////
28 16
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 21 of 22

1 Dated: May 5, 2010 BENTON, ORR, DUVAL &BUCKINGHAM

2
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By: /s/ Kevin M. McCormick
4 Kevin M. McCormick
Attorneys for Defendant, the Supreme Court
5 of California
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DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
 Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 22 of 22

1 PROOF OF SERVICE
Fine v. State Bar of California, et al.
2 Case No.: CV10-00048 JFW (CW)
3 STATE OF CALIFORNIA, COUNTY OF VENTURA
4 I am employed in the County of Ventura, State of California. I am over the
age of 18 and not a party to the within action. My business address is 39 N.
5 California Street, Ventura, CA 93001.
6 On May 5, 2010, I served the foregoing document(s) described as:
DEFENDANT, THE SUPREME COURT OF CALIFORNIA’S NOTICE OF
7 MOTION AND MOTION TO DISMISS COMPLAINT; MEMORANDUM
OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the
8 interested parties in this action by placing ____ an original XXX a copy thereof
enclosed in a sealed envelope addressed as follows:
9
Richard I. Fine, BK # 1824367
10 Twin Towers Correctional Facility
450 Bauchet Street
11 Los Angeles, CA 90012
12 Tracey L. McCormick
Office of General Counsel
13 180 Howard Street
San Francisco, CA 94105-1639
14
15 XXX BY FIRST CLASS MAIL) ____ (BY EXPRESS MAIL) I caused such
envelope with postage thereon fully prepared to be placed in the United States
16 mail at Ventura, California. I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. It is deposited with the
17 U.S. Postal Service on that same day in the ordinary course of business. I am
aware that on motion of the party served, service is presumed invalid if postal
18 cancellation date or postage meter date is more than one day after date of deposit
for mailing in affidavit.
19
XXX (Federal) I declare that I am employed in the office of a member of the
20 bar of this court at whose direction the service was made. I declare under penalty
of perjury that the foregoing is true and correct.
21
22 Executed on May 5, 2010, at Ventura, California
23 /s/ Valerie Lopez
Valerie Lopez
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