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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 CASE NO. CV 10-00048 JFW (CW)

RICHARD I. FINE,

Plaintiff, NOTICE OFE DEFENDANT, THE SUPREM COURT OF CALIFORNIA’S NOTICE OF v. MOTION AND MOTION TO STATE BAR OF CALIFORNIA, D I S M I S S C O M P L A I N T ; BOARD OF GOVERNORS OF THE MEMORANDUM OF POINTS AND STATE BAR OF CALIFORNIA, AUTHORITIES IN SUPPORT SCOTT DREXEL, CHIEF TRIAL THEREOF COUNSEL OF THE STATE BAR OF [Federal Rules of Civil Procedure, CALIFORNIA, AND THE SUPREME Rules 12(b)(1) and (6)] COURT OF CALIFORNIA (ONLY AS A NECESSARY PARTY), Date: June 1, 2010 Time: 10:00 a.m. Defendants. 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 (“F.R.Civ.P.”),
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Rules12(b)(1) & (6), for dismissal of plaintiff in pro se, Richard I. Fine’s (“Fine”) Complaint on the following grounds: • • This court lacks subject matter jurisdiction of the matters alleged in Plaintiff’s Complaint as against the Court; and Plaintiff’s 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 (“RJN”), 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

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TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . 3 I. II. III. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . 3 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. This Court Lacks Subject Matter Jurisdiction of Fine’s Claims for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. 2. B. The State Court Decision Disbarring Fine re Res Judicata and Cannot be Collaterally Attacked . . . . . . . . . . . . . . . . . . . 6 Fine’s Claims for Relief Are Barred by the Rooker-Feldman Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fine’s 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 The Eleventh Amendment Bars Fines's 42 U.S.C. §1983 Claim Against the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Fine’s Claims for Injunctive Relief is Barred by 42 U.S.C. §§1983 and 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fine’s Prayer for Attorney’s 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 The Second Prong of Absolute Judicial Immunity is Satisfied Because the Acts Alleged Were Performed in Matters Which Were Before the Court . . . . . . . . . . . 16

2. 3. 4.

b.

V.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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TABLE OF AUTHORITIES Federal Cases Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,9 Barren v. Harrington, th 152 F.3d 1193 (9 Cir. 1998), cert. den., 525 U.S. 1154 (1999) . . . . . . . . 14 Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Brown v. Felsen, 422 U.S. 127, 131(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Bureerong v. Uvawas, 922 F.Supp. 1450(C.D.Cal.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Caperton v. A.T. Massey Coal Co., Inc., ___U.S.____ 129 S.Ct. 2252 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12 Cato v. United States, th 70 F.3d 1103 (9 Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8 Emrich v. Touche Ross & Company, 846 F.2d 1190, 1194 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Federated Department Stores v. Mottie, 452 U.S. 394 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Forrester v. White, 484 U.S. 219, 108 S.Ct. 538 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Franceschi v. Schwartz, 57 F.3d 828 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15 Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Hansen v. Black, 885 F.2d 642 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Kruse v. Hawaii, 68 F.3d 331 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Lance v. Dennis, 546 U.S. 459, 126 S.Ct. 1198, 1201 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Meek v. County of Riverside, 183 F.3d 962 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 15 Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16 Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 150 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Viqueira v. First Bank, 140 F.3d 12 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 West v. Atkin, 487 U.S. 42, 108 S.Ct. 2250 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Worldwide Church of God. v. McNair, 805 F.2d 888 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Federal Statutes and Rules 42 U.S.C.§1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14 42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Federal Rules of Civil Procedure, Rule 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Federal Rules of Civil Procedure, Rule 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Federal Rules of Civil Procedure, Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Federal Rules of Civil Procedure, Rule 12(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 State Cases Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,11,12 State Statutes and Rules California Code of Civil Procedure Section 526a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 California Government Code Section 68220-68222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 77000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Law Review Articles Rooker-Feldman, From The Ground Up 74 Notre Dame L.Rev. 1129, 1135 (1999) . . . . . . . . . . . . . . . . . . . 4,5,6,8,9

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL AND PROCEDURAL BACKGROUND Fine brings the present action against defendants, the Supreme Court of California (the “Court”) and the State Bar of California, et al, arising from his disbarment effective March 13, 2009.1 By way of his allegations, Fine charges the Court, among others, with acts of fraud and moral turpitude (in connection with the proceedings that ultimately led to his disbarment) on the basis that the Court and other judicial officers received local judicial benefits. As this court is well aware, Fine has a longstanding history of challenging state and federal judicial officers who receive, or have received, local judicial benefits - but only when that particular judicial officer ruled adversely to Fine or his clients. When Fine prevailed in matters before judicial officers who received such benefits, he remained curiously silent on the issue. Notwithstanding Fine’s multiple and unsuccessful attempts to discredit both state and federal judicial officers,2 he again, and in bad faith, raises the specter of the payment of “local judicial benefits” as a purportedly valid basis to

RJN, Exhibit “B,” Records from the State Bar of California reflecting Fine’s disbarment effective March 13, 2009. Although Fine trumpets the various actions that he has filed against judicial officers as evidence of his successful prosecution of alleged judicial corruption, he 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 RJN, Exhibit “A,” pp. 8-15 (outlining Fine’s numerous and unsuccessful attempts to 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 Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The Sturgeon decision specifically found that the payment of local judicial benefits was 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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overturn the final decision of the Court disbarring him from the practice of law in the State of California.3 The crux of Fine’s Complaint alleges that the root of his disbarment arose from his crusade to expose claimed illegal and unconstitutional payment of “local judicial benefits” by the County of Los Angeles to Superior Court of California, County of Los Angeles judicial officers.4 Fine goes on to claim that due to the failure of judicial officers to disclose the receipt of local judicial benefits, every previous order and/or judgment entered against Fine was the product of a void order as the judicial officers should have recused themselves. Fine then concludes that the failure of the judicial officers to recuse themselves voided all subsequent orders and/or judgments ab initio.5 By way of this action, Fine maliciously and disingenuously seeks to impugn the integrity of the Court, and other judicial officers, by claiming that the Court, among others, sought to fraudulently and corruptly prosecute Fine because of Fine’s claim that they had acted criminally by accepting local judicial benefits.6 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 denied October 5, 2009, thereby barring this action under the principles of Res Judicata and the Rooker-Feldman Doctrine. The decision of disbarment of the 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, Exhibit “C,” ( Supreme Court docket reflecting that Fine’s Petition for Certiorari was denied on October 5, 2009).
4 5 6 3

Complaint, ¶¶2-3. Complaint, ¶¶31-42; 44-47.

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 Court is evidenced by the multiple allegations of judicial corruption based upon 27 receipt of local judicial benefits and especially those leveled against Chief Justice
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Fine’s Complaint must be dismissed on the basis that this court lacks subject matter jurisdiction as the Complaint is barred under Res Judicata and/or the Rooker-Feldman doctrine. Alternatively, the Complaint must be dismissed as it fails to set forth any legally cognizable claim for relief against the Court based upon the receipt of local judicial benefits. II. STANDARD OF REVIEW A complaint may be dismissed, pursuant to F.R.Civ.P, Rule 12(b)(1), for lack of subject matter jurisdiction. Neitzke v. Williams, 490 U.S. 319, 327 fn.6, 109 S.Ct. 1827 (1989) (patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction). Moreover, “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” F.R.Civ.P., Rule 12(h)(3). A challenge to the court’s subject matter jurisdiction may be raised at any time, including sua sponte by the court. Emrich v. Touche Ross & Company, 846 F.2d 1190, 1194, fn.2 (9th Cir. 1988). Additionally, a complaint may be dismissed, pursuant to F.R.Civ.P., Rule 12(b)(6), for failure to state a claim for relief based on either a lack of a viable legal theory or insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir 1990). F.R.Civ.P., Rule 8(a) requires that a complaint must contain a “short and plain” statement of the claim showing that the plaintiff is entitled to relief. F.R.Civ.P., Rule 8(a) further requires that “[e]ach averment of a pleading shall be simple, concise, and direct.” A complaint may also be dismissed for failure to state a claim if it

George and Associate Justices Chin, Corrigan, Kennard, and Moreno. (Complaint, ¶¶21-24; 27-29; 51; 65-67; 75-80; ) Fine is simply trying to relitigate an issue that 27 he has lost time and time again.
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discloses some fact that will defeat the claim.7 Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). III. ARGUMENT A. This Court Lacks Subject Matter Jurisdiction of Fine’s Claims for Relief The party asserting subject matter jurisdiction has the burden of proving that the court has jurisdiction over the claims. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). Moreover, federal district courts are courts of original jurisdiction and may not serve as appellate tribunals to review errors allegedly committed by state courts. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150 (1923) (the Rooker and Feldman decisions have become known as the Rooker-Feldman doctrine). This Court lacks subject matter jurisdiction as set forth below. 1. The State Court Decision Disbarring Fine is Res Judicata and Cannot Be Collaterally Attacked Fine’s claim for relief against the Court is barred under Res Judicata as Fine now seeks federal district court review of a final decision of the Supreme Court of the State of California after review was denied by the United States Supreme Court. As stated by the Supreme Court in Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205 (1979): “Res judicata ensures the finality of decisions. Under res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.’ (Citation omitted). Res
7

As stated, Fine’s attempt to gain United States Supreme Court review of the March 25, 2009 Order disbarring him was unsuccessful making that order final and 27 non-reviewable. That fact alone bars this lawsuit.
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judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. (Citations omitted). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” (Emphasis added.)8 The Supreme Court further elaborated on Res Judicata in Federated Department Stores v. Mottie, 452 U.S. 394, 401-02, 101 S.Ct. 2424 (1981) wherein it stated: “This Court has long recognized that ‘[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.’ (Citation omitted.) We have stressed that ‘[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, ‘of public policy and of private peace,’ which should be cordially regarded and enforced by the courts....’ (Citation omitted.) ‘The predicament in which respondent finds himself is of his own making ....[W]e cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation-a maxim which comports with common sense as well as public policy.’”
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It is respectfully submitted that Fine’s continuing attack on the state and federal judiciary for receipt of local judicial benefits has risen to the level of 27 vexatious litigation and should be treated as such.
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The decision of the Court in disbarring Fine has become final and is not subject to further review or collateral attack under Res Judicata. Fine’s Complaint is barred and should be dismissed. 2. Fine's Claims for Relief Are Barred by the Rooker-Feldman Doctrine Under the Rooker-Feldman doctrine, “[t]he United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in judicial proceedings.” Worldwide Church of God. v. McNair, 805 F.2d 888, 890 (9th Cir. 1986). “[T]he proper court in which to obtain such review is the United States Supreme Court.” Id. (citing District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. 462, 103 S.Ct. at 1311).9 “This doctrine applies even when the challenge to the state court decision involves federal constitutional issues.” Id. (citing District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. at 482-86 & n. 16, 103 S.Ct. at 1314-17 & n. 16). The district court may not consider constitutional claims if they are “inextricably intertwined” with the state court’s decision in a particular case. District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. at 483-84, n. 16, 103 S.Ct. at 1315, n. 16. The purpose behind the foregoing is to allow “the state the first opportunity to consider a state statute or rule in light of federal constitutional arguments.” Id. “In other words, Rooker-Feldman will bar not only federal issues actually raised in the state court, but also those inextricably intertwined issues that could have been raised there.” Barry Friedman & James E. Gaylord, Rooker-Feldman, From the Ground Up, 74 Notre Dame L.Rev. 1129, 1135 (1999). Moreover, the United States Supreme Court held the proper application of 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.”
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the Rooker-Feldman doctrine is to a federal lawsuit "brought by [a] state court loser[] complaining of injuries caused by [a] state-court judgment[]." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517 (2005); accord Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 1201 (2006). Simply stated, the basis of the Complaint, as it relates to the Court, is that a majority of its members somehow acted unlawfully in disbarring Fine. Fine obviously disagrees with this result and now seeks to have this adverse state court decision reviewed by the federal district court, notwithstanding a previous denial of his petition for certiorari to the Supreme Court of the United States. The decision of the Court in disbarring Fine has become final and is not subject to further review or collateral attack under the Rooker-Feldman doctrine. Fine’s Complaint is barred and should be dismissed. B. FINE’S COMPLAINT FAILS TO ALLEGE SUFFICIENT FACTS TO STATE A COGNIZABLE LEGAL THEORY AGAINST THE COURT, LET ALONE ANY OTHER DEFENDANT A motion to dismiss is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., supra, 901 F.2d 696, 699. The Complaint is subject to dismissal where, as here, “one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). While pro se pleadings are liberally construed, a pro se action should be dismissed if, after careful consideration, the court concludes that the allegations of the complaint disclose that no cognizable claim can be stated and that amendment would be futile. Cato v. United States, 70 F.3d 1103, passim (9th Cir. 1995). The court need not accept as true unreasonable inferences, unwarranted deductions of
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fact, or conclusory legal allegations cast in the form of factual allegations. Bureerong v. Uvawas, 922 F.Supp. 1450, 1462 (C.D.Cal.1996). 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 Fine contends that the mere receipt of local judicial benefits, in and of itself, establishes that judicial officers receiving such benefits are required to recuse themselves from litigation involving the County of Los Angeles.10 Fine bases this contention on the notion that the receipt of local judicial benefits constituted a direct, personal, substantial, pecuniary interest in the outcome of the litigation. This contention is the foundation of Fine’s claim that he was somehow the subject of a fraud and wrongfully disbarred. This argument has no basis in fact or law. Fine will no doubt argue that the holding in Caperton v. A.T. Massey Coal Co., Inc., ___U.S.___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), somehow supports his contention regarding the payment of local judicial benefits. In Caperton, the United States Supreme Court dealt with an extreme example of a judicial election campaign contribution resulting is an objectively verifiable appearance of judicial bias. At issue was a $3 million dollar contribution made by a state court litigant to the election campaign of a practicing attorney in an effort

By Fine’s reasoning, in any California state court matter where the State 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 paying the judicial officer’s compensation. Taking this argument to the extreme, Fine appears to contend that in any federal matter where the United States is a party results 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.
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to elect that individual to a seat on the West Virginia Supreme Court. The state court litigant knew that it would seek review of the $50 million trial court verdict rendered against it and made the contribution for the purpose of substantially increasing the chances of the recipient of the contribution to be elected to that reviewing court. Ultimately, though by a narrow margin, the challenger was elected to the West Virginia Supreme Court. Notwithstanding challenges by the victorious state court litigant for disqualification, the motions were denied and the newly elected jurist presided over the appeal of the $50 million verdict, ultimately voting with the majority to reverse the judgment entered against the party that had made the $3 million election campaign contribution. In reviewing the fact of the campaign contribution, the amount the contribution bore in relation to all other contributions made for the benefit of the challenger, and the entire campaign budget of the incumbent justice, the Supreme Court found that the $3 million contribution was so disproportionate so as to objectively establish that the newly elected justice was biased and should have recused himself from the matter. The Supreme Court formulated the test for bias in that circumstance as follows: “The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge is his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Id. at 129 S.Ct. 2262. In the matter of Sturgeon v. County of Los Angeles, supra, 167 Cal.App.4th 630, the California Court of Appeal held that the payment of local judicial benefits by the County of Los Angeles to judicial officers of the Superior Court of California, County of Los Angeles was not unconstitutional per se. In so holding, the California Court of Appeal emphasized that: • The payment of local judicial benefits by the County of Los Angeles
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was unconstitutional only because the duty to set compensation for state judicial officers was a non-delegable duty imposed upon the state legislature; • Local judicial benefits were statutorily authorized by the LockyerIsenberg Trial Court Funding Act of 1997, California Government Code, section 77000, et seq.; and • The argument that the payment of local judicial benefits represented an unconstitutional gift of public funds under the California Constitution or represented a waste of public funds pursuant to California Code of Civil Procedure, section 526a was without merit. Id. at 635, 642-630. Based upon the holdings of the Caperton and Sturgeon decisions, and the subsequent enactment of California Senate Bill 11,11 it is clear that Fine’s contention that a judicial officer’s receipt of local judicial benefits as creating an objective probability of actual bias is without either factual or legal support. The character of the benefits do not bear any resemblance to the facts of the Caperton decision and simply do not provide a basis for recusal of the judicial officer receiving those benefits.

Effective May 21, 2009, and subsequent to the Sturgeon decision, the California legislature enacted Senate Bill 11 which explicitly extended existing county-provided benefits for judges, establishing standards, and specifically providing as follows: "Notwithstanding any other law, no governmental entity, or officer or employee 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 of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under the law." See 2009 Cal. Legis. Serv., 2nd Ex. Sess., Chap. 9 (S.B. 11). Senate Bill 11 has since been codified as California Government Code, sections 68220-68222.
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The receipt of local judicial benefits does not in any manner support or corroborate Fine’s allegation that his disbarment was the result of fraud perpetuated on and/or participated in by the Court. Fine cannot state a cognizable claim for relief on the basis of the receipt of local judicial benefits and his Complaint should be dismissed. 2. The Eleventh Amendment Bars Fines’s 42 U.S.C. §1983 Claim Against the Court Fine simply names the Court as a party defendant in this action. The Eleventh Amendment to the United States Constitution bars §1983 suits against States. It has been stated "that ‘States or governmental entities that are considered "arms of the state" for Eleventh Amendment purposes' are not persons within the meaning of 1983." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). Judges acting in their official capacity are considered "arms of the state". Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995). Moreover, state officials may not be sued for damages in their official capacities. Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988). Further, "[p]ersonal-capacity suits seek to impose personal liability upon a governmental official for actions he takes under color of law." Kentucky v. Graham 473 U.S. 159, 165, 105 S.Ct. 3099, 3105 (1985). Conversely, "[o]fficial-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which the officer is an agent.'" Id. To state a civil rights claim against an individual defendant, a plaintiff must allege facts showing the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's alleged wrongful conduct and the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). "A plaintiff must allege facts, not simply conclusions, that show an individual was
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personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). Fine simply fails to allege any fact establishing the personal involvement of any member of the Court in the alleged deprivation of his civil rights. As a result, Fine's Complaint against the Court is barred and must be dismissed. 3. Fine’s Claim for Injunctive Relief is Barred by 42 U.S.C. §§ 1983 and 1985 42 U.S.C. § 1983 provides in relevant part: “[I]n any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” Specifically, to establish a claim for injunctive relief under Section 1983, a plaintiff must establish two elements: 1) a violation of a right secured by the Constitution or laws of the United States; and 2) that the violation was committed by a person acting under color of state law. See, e.g., West v. Atkin, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988). “To obtain injunctive relief, a reasonable showing of a sufficient likelihood that plaintiff will be injured again is necessary.” Kruse v. Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and alteration omitted.) Under this provision, Fine cannot seek injunctive relief as there are no allegations of any declaratory decree which has been violated or that declaratory relief was unavailable to him. Fine sought United States Supreme Court review of his disbarment which was denied. To establish a claim under Section 1985(3), Fine must demonstrate four elements: 1) a conspiracy 2) for the purpose of depriving a person of equal protection of the laws; 3) an act in furtherance of the conspiracy; and that 4) deprives a person of a legally protected right. Sever v. Alaska Pulp Corp., 978
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F.2d 1529, 1536 (9th Cir. 1992). Fine has failed to demonstrate a substantial likelihood that he will be injured in the future by any act on the part of the named defendants (the complained of acts have already occurred) and all that he has alleged against the defendants are acts occurring during valid state court proceedings resulting in his disbarment. Based upon the foregoing, Fine’s Complaint fails to set forth any cognizable claim for relief, injunctive or otherwise, and should be dismissed. 4. Fine’s Prayer for Attorney’s Fees and Costs is Barred by Absolute Judicial Immunity “A long line of United State Supreme Court’s precedents acknowledges that, generally, a judge is immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286 (1991). “Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985). Further, the Ninth Circuit has held that subordinate state court officers (such as court commissioners) enjoy judicial immunity. Meek v. County of Riverside, 183 F.3d 962 (9th Cir. 1994); Franceschi v. Schwartz, supra, 57 F.3d 828. Judicial immunity is a defense to an action under 42 U.S.C.§1983. See Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), and cases cited therein; Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213 (1967). The United States Supreme Court, in Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099 (1978), made clear that "whether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 1108; see also Forrester v. White, 484 U.S. 219, 227-229, 108 S.Ct. 538 (1988).

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It is a judicial officer’s duty to decide all cases within the court’s jurisdiction that are brought before that officer, including controversial cases that arouse the most intense feelings in the litigants. Errors may be corrected on appeal, but the judicial officer should not have to fear that unsatisfied litigants may hound the court with litigation charging malice or corruption. Imposing such a burden on the court and its judicial officers would contribute not to principled and fearless decision making, but lead to intimidation. Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. at 1218. 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 Fine admits that the Court acted in its official capacity during the pendency of the disbarment proceedings thus establishing the first prong for judicial immunity is satisfied. b. The Second Prong of Absolute Judicial Immunity is Satisfied Because the Alleged Acts Were Performed in Matters Which Were Before the Court. Fine admits that the alleged acts occurred in matters before state courts, meeting the second prong of the immunity inquiry. As a result, Fine’s claim for recovery of attorney’s fees and costs is barred by absolute judicial immunity. V. CONCLUSION Based upon the foregoing, it is respectfully submitted that the Complaint be dismissed with prejudice and that this court find that any further litigation brought by Fine regarding the receipt of local judicial benefits be declared vexatious in nature and subject to summary dismissal. ///// /////
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Dated: May 5, 2010

BENTON, ORR, DUVAL &BUCKINGHAM

By: /s/ Kevin M. McCormick Kevin M. McCormick Attorneys for Defendant, the Supreme Court of California

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PROOF OF SERVICE Fine v. State Bar of California, et al. Case No.: CV10-00048 JFW (CW) STATE OF CALIFORNIA, COUNTY OF VENTURA

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. 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:
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Richard I. Fine, BK # 1824367 Twin Towers Correctional Facility 450 Bauchet Street 11 Los Angeles, CA 90012
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Tracey L. McCormick Office of General Counsel 13 180 Howard Street San Francisco, CA 94105-1639
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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.
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XXX (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 5, 2010, at Ventura, California /s/ Valerie Lopez Valerie Lopez