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USDC - Dkt 22 - Calif Supreme Court's Motion to Dismiss - filed 5-5-2010

USDC - Dkt 22 - Calif Supreme Court's Motion to Dismiss - filed 5-5-2010

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Published by Honor in Justice

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Published by: Honor in Justice on May 14, 2010
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02/01/2013

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DEFENDANT, THE SUPREME COURT OF CALIFORNIA\u2019S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT

Kevin M. McCormick CSBN 115973
BENTON, ORR, DUVAL & BUCKINGHAM
A PROFESSIONAL CORPORATION
39 North California Street
Post Office Box 1178
Ventura, California 93002

Telephone: (805) 648-5111
Facsimile: (805) 648-7218
E-mail: kmccormick@bentonorr.com
Attorneys for Defendant, The Supreme Court
of California

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

RICHARD I. FINE,
Plaintiff,
v.

STATE BAR OF CALIFORNIA, BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA, SCOTT DREXEL, CHIEF TRIAL COUNSEL OF THE STATE BAR OF CALIFORNIA, AND THE SUPREME COURT OF CALIFORNIA (ONLY AS A NECESSARY PARTY),Defendants.

CASE NO. CV 10-00048 JFW (CW)
NOTICE OF DEFENDANT, THE
S U P R E M E
C O U R T

O F CALIFORNIA\u2019S NOTICE OF MOTION AND MOTION TO DISMISS

COMPLAI NT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[Federal Rules of Civil Procedure,
Rules 12(b)(1) and (6)]
Date:
June 1, 2010
Time:
10:00 a.m.
Ctrm:

640
255 E. Temple Street
Los Angeles, California

M. Judge: Hon. Carla Woerhle
NOTICE IS HEREBY GIVEN that on June 1, 2010 at 10:00 a.m., or as soon

thereafter as the parties may be heard, in Courtroom 640 of the United States District Court, Central District, Western Division, located at 255 E. Temple Street, Los Angeles, California, defendant, the Supreme Court of California, will and hereby does move this court pursuant to Federal Rules of Civil Procedure (\u201cF.R.Civ.P.\u201d),

Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 1 of 22
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DEFENDANT, THE SUPREME COURT OF CALIFORNIA\u2019S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
Rules12(b)(1) & (6), for dismissal of plaintiff in pro se, Richard I. Fine\u2019s (\u201cFine\u201d)
Complaint on the following grounds:
\u2022
This court lacks subject matter jurisdiction of the matters alleged in
Plaintiff\u2019s Complaint as against the Court; and
\u2022
Plaintiff\u2019s Complaint fails to set forth any cognizable claim upon which
relief may be granted as against the Court.

This Motion is based upon the Notice of Motion, the accompanying Memorandum of Points and Authorities, the concurrently filed Request for Judicial Notice (\u201cRJN\u201d), all pleadings and papers on file in this action and upon such other matters as the court may allow to be presented at the time of the hearing on this matter.

Pursuant to CD CA, L.R. 7-3 and 16-12(c), regarding pro se plaintiffs, no
prefiling conference is required prior to the filing of this Motion to Dismiss.
Dated: May 5, 2010
BENTON, ORR, DUVAL &BUCKINGHAM
By: /s/ Kevin M. McCormick

Kevin M. McCormick
Attorneys for Defendant, the Supreme Court
of California

Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 2 of 22
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i
DEFENDANT, THE SUPREME COURT OF CALIFORNIA\u2019S
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT
TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . 3
I.
FACTUAL AND PROCEDURAL BACKGROUND. . . . . . . . . . . . . . . . . . . 3
II.
STANDARD OF REVIEW..................................... 5
III.
ARGUMENT. ............................................... 6
A.
This Court Lacks Subject Matter Jurisdiction of Fine\u2019s
Claims for Relief........................................ 6
1.
The State Court Decision Disbarring Fine re Res Judicata
and Cannot be Collaterally Attacked................... 6
2.
Fine\u2019s Claims for Relief Are Barred by theRo o k er -Feld m a n
Doctrine.......................................... 8
B.

Fine\u2019s Complaint Fails to Allege Sufficient Facts to State
a Cognizable Legal Theory Against the Court, Let Alone
Any Other Defendant..................................... 9

1.

Fine Cannot State a Cognizable Claim for Relief as
Judicial Officers Who Receive Local Judicial Benefits
Do Not Have a Direct, Personal, Substantial, Pecuniary
Interest in Matters Before Them Requiring Recusal..... . 10

2.
The Eleventh Amendment Bars Fines's 42 U.S.C. \u00a71983 Claim
Against the Court. ................................ . 13
3.
Fine\u2019s Claims for Injunctive Relief is Barred by 42U.S .C.
\u00a7\u00a71983 and 1985. ................................. 14
4.
Fine\u2019s Prayer for Attorney\u2019s Fees and Costs is Barred
by Absolute Judicial Immunity. .................... ..15
a.

The First Prong of Absolute Judicial Immunity is
Satisfied Because All of the Acts Alleged by Fine Were
Performed by the Court in its Official Capacity.... . 16

b.

The Second Prong of Absolute Judicial Immunity is
Satisfied Because the Acts Alleged Were Performed in
Matters Which Were Before the Court. . . . . . . . . . . 16

V.
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Case 2:10-cv-00048-JFW-CW Document 22 Filed 05/05/10 Page 3 of 22

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