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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL SMITH,

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Plaintiff,

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vs.
SUPERIOR COURT OF
RIVERSIDE COUNTY, et al.,
Defendants.

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Case No. EDCV 14-01413-VBF (DTB)
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE

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This Report and Recommendation is submitted to the Honorable Valerie Baker

20 Fairbank, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636
21 and General Order 05-07 of the United States District Court for the Central District
22 of California.
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PROCEEDINGS
Plaintiff filed this pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

26 on July 16, 2014, after being granted leave to proceed in forma pauperis. The
27 gravamen of plaintiff’s claims is that defendants violated his constitutional rights
28 when Riverside County Superior Court Judge Steven Counelis issued an order
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1 pursuant to California’s Vexatious Litigant Statute (“VLS”), codified at Cal. Civ.
2 Proc. Code §§ 391-381.7,1 requiring plaintiff to post a $25,000 security bond in order
3 to file any additional documents in his pending family law case in Riverside County
4 Family Law Court. (Complaint at 9.) The Complaint named the following parties as
5 defendants: The Superior Court of the County of Riverside, Family Law Division
6 (“Superior Court”); Superior Court Judge Steven Counelis (“Counelis”); Superior
7 Court Commissioner Gregory Olson (“Olson”); attorney Marianna A. Hevia-Cockrell
8 (“Hevia-Cockrell”); and the mother of plaintiff’s minor child, Juvelyn Kate-Green
9 (“Kate-Green”), who initiated the underlying family court proceeding giving rise to
10 the Complaint. Plaintiff sued defendants Counelis, Olson, and Hevia-Cockrell in
11 their individual and official capacities and defendant Kate-Green in her individual
12 capacity. The Court screened the Complaint in accordance with 28 U.S.C. §
13 1915(e)(2), and, on September 3, 2014, dismissed the Complaint with leave to amend
14 for failure to state a claim upon which relief might be granted.
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“The California legislature adopted the [VLS] in 1963 to ease the
‘unreasonable burden placed upon the courts by groundless litigation.’” Wolfe v.
Strankman, 392 F.3d 358, 360 (9th Cir. 2004) (quoting Wolfgram v. Wells Fargo
Bank, 53 Cal. App. 4th 43, 49, 61 Cal. Rptr. 2d 694 (1997)), aff’d, Wolfe v. George,
486 F.3d 1120 (9th Cir. 2007). “The statute provides that a defendant in any state
court may move the court to require a pro se plaintiff who qualifies as a ‘vexatious
litigant’ to post a security bond before proceeding.” Id. at 360-61 (quoting Cal. Civ.
Proc. Code § 391.1) (internal footnote omitted). “The statute also allows a judge to
enter a prefiling order prohibiting a vexatious litigant from filing any new pro se
litigation without the permission of the presiding judge of the court where the litigant
seeks to file.” Id. at 361 (citing Cal. Civ. Proc. Code § 391.7(a)). “Parties subject to
prefiling orders are placed on a statewide list–‘the Vexatious Litigant
List’–maintained by the Judicial Council of California and disseminated to clerks of
the state courts.” Id. (citing Cal. Civ. Proc. Code § 391.7(e)).
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On December 8, 2014, after two extensions of time, plaintiff filed a First

2 Amended Complaint (“FAC”).

The FAC named the same defendants as the

3 Complaint, as well as the following additional defendants: The California Judicial
4 Council as the policy-making body of the California courts and the state body
5 responsible for creating vexatious litigant forms; Chief Justice Cantil-Sakauye of the
6 California Supreme Court (“Cantil-Sakauye”), in her capacity as the Director of the
7 Judicial Council; the Administrative Director of the Judicial Council, Steven Jahr
8 (“Jahr”); Superior Court Judge, Mark Cope (“Cope”); and Presiding Justice of the
9 California Court of Appeal, Fourth Appellate District, Division Two, Manuel
10 Ramirez (“Ramirez”). Plaintiff sued defendants Cantil-Sakauye, Jahr, Counelis,
11 Cope, and Ramirez in their official capacity, and defendants Hevia-Cockrell and
12 Kate-Green in their individual capacities. Plaintiff did not allege the capacity in
13 which he sued Olson. On January 8, 2015, prior to the Court’s screening of the FAC,
14 plaintiff filed a “Request to File 2nd Amended Complaint-Reformatted Version of 1st
15 Amended Complaint: Reduced Pages,” which the Court granted.
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Thereafter, plaintiff filed a Second Amended Complaint (“SAC”) on January

17 20, 2015. The SAC named the same defendants as in the FAC, with the following
18 changes: Martin N. Hoshino (“Hoshino”), the Administrative Director of the Judicial
19 Council, was named instead of Jahr. Plaintiff sued defendants Cantil-Sakauye,
20 Hoshino, Counelis, Cope, and Ramirez in their official capacity, and defendants
21 Hevia-Cockrell and Kate-Green in their individual capacity. Plaintiff did not allege
22 the capacity in which he sued defendant Olson. The gravamen of plaintiff’s claims
23 remained essentially the same as that alleged in the previous complaints. Again, after
24 screening the SAC in accordance with 28 U.S.C. § 1915(e)(2), the Court dismissed
25 the SAC with leave to amend on February 3, 2015.
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On March 6, 2015, after one extension of time, plaintiff filed a Third Amended

27 Complaint (“TAC”). The TAC named the same defendants as in the SAC, and also
28 named California Court of Appeal Justice Thomas Hollenhorst (“Hollenhorst”).
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1 Plaintiff sued defendants Cantil-Sakauye, Jahr, Hoshino, Counelis, Olson, Cope,
2 Ramirez, and Hollenhorst in their official capacity, defendant Hevia-Cockrell in her
3 individual and official capacities, and defendant Kate-Green in her individual
4 capacity. The gravamen of plaintiff’s claims remained essentially the same as that
5 alleged in the prior complaints. Again, after screening the TAC prior to service, the
6 Court dismissed the TAC with leave to amend on July 13, 2015.
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On August 27, 2015, after one extension of time, plaintiff filed a Fourth

8 Amended Complaint (“4thAC”). The 4thAC names the following defendants: The
9 Council, Cantil-Sakauye, Jahr, Hoshino, and Counelis.

Plaintiff sues these

10 defendants in their official capacity only. The gravamen of plaintiff’s claims remains
11 essentially the same as that alleged in the prior complaints. On September 30, 2015,
12 upon screening the 4thAC in accordance with 28 U.S.C. § 1915(e)(2), the Court
13 found that plaintiff’s allegations were sufficient to state federal civil rights claims
14 against the Council, Cantil-Sakauye, Jahr, and Hoshino in their administrative
15 capacities, and ordered service on those defendants. The Court, however, dismissed
16 the claims against Counelis for failure to state a claim upon which relief might be
17 granted. The Court granted plaintiff leave to amend within thirty days of the Court’s
18 Order dismissing Counelis, if he desired to pursue such claims. Plaintiff did not file
19 a fifth amended complaint.
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On January 7, 2016, defendants the Council, Cantil-Sakauye, Hoshino, and Jahr

21 filed a Motion to Dismiss the Fourth Amended Complaint (“Motion”), along with a
22 supporting Memorandum of Points and Authorities (“Mot. Mem.”). In the Motion,
23 defendants seek dismissal on the grounds that the Court does not have subject matter
24 jurisdiction over the claims because the Eleventh Amendment bars the claims in
25 federal court and that the 4thAC fails to state a claim upon which relief might be
26 granted. On February 19, 2016, after two extensions of time, plaintiff filed his
27 Opposition (“Opp.”) to the Motion, as well a supporting declaration, a request that
28 the Court take judicial notice of his previously-filed Memorandum of Law Number
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1 Two (“Mem. of Law Two”), and a request that the Court take judicial notice of his
2 previously-filed Request for Judicial Notice in Support of Third Amended Complaint.
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This matter is now ready for decision. For the reasons discussed herein, the

4 Court recommends that the Motion be granted in part and denied in part.
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STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the formal sufficiency of a statement

8 of claim for relief. A complaint may be dismissed as a matter of law for failure to
9 state a claim for two reasons: (1) Lack of a cognizable legal theory; or (2) insufficient
10 facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d
11 696, 699 (9th Cir. 1990) (as amended).2 In determining whether the complaint states
12 a claim on which relief may be granted, its allegations of material fact must be taken
13 as true and construed in the light most favorable to plaintiffs. See Love v. United
14 States, 915 F.2d 1242, 1245 (9th Cir. 1990) (as amended); see also Lazy Y Ranch
15 Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). “[T]he tenet that a court must
16 accept as true all of the allegations contained in a complaint is inapplicable to legal
17 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d
18 868 (2009). Further, since plaintiff is appearing pro se, the Court must construe the
19 allegations of the complaint liberally. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
20 2197, 167 L. Ed. 2d 1081 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338,
21 342 (9th Cir. 2010) (as amended). However, “a liberal interpretation of a civil rights
22 complaint may not supply essential elements of the claim that were not initially pled.”
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The Court notes that Balistreri has been overruled by Bell Atl. Corp. v.
25 Twombly, 550 U.S. 544, 562-63, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), to the
26 extent that it followed the rule that, “[a] complaint should not be dismissed under
27 Rule 12(b)(6) ‘unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.’” 901 F.2d at 699
28 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).
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1 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting
2 Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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Moreover, with respect to plaintiff’s pleading burden, the Supreme Court has

4 held that:
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[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment]

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to relief” requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual

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allegations must be enough to raise a right to relief above the speculative

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level . . . on the assumption that all the allegations in the complaint are

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true (even if doubtful in fact).

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12 Twombly, 550 U.S. at 555 (internal citations omitted and alteration in original). In
13 other words, the allegations must be plausible on the face of the complaint. See Iqbal,
14 556 U.S. at 678. The Supreme Court has also held that:
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The plausibility standard is not akin to a “probability requirement,” but

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it asks for more than a sheer possibility that a defendant has acted

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unlawfully. Where a complaint pleads facts that are “merely consistent

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with” a defendant’s liability, it “stops short of the line between

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possibility and plausibility of ‘entitlement to relief.’”

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21 Id. (citations omitted); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)
22 (“the factual allegations that are taken as true must plausibly suggest an entitlement
23 to relief, such that it is not unfair to require the opposing party to be subjected to the
24 expense of discovery and continued litigation”).
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In assessing the merits of a motion to dismiss, courts may consider documents

26 attached to the complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
27 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (as amended).
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SUMMARY OF PLAINTIFF’S ALLEGATIONS

2 I.

The underlying proceedings in Superior Court.

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The 4thAC alleges that the Riverside County Superior Court “made a

4 determination in September of 2004 that the Plaintiff is a ‘vexatious litigant’ based
5 on the motion of the other parent [Kate-Green].” (4thAC at 9.) “The court . . .
6 grant[ed] the motion (Plaintiff did not even know what that was about and filed no
7 rebuttal)” and “issued a pre-filing order that Plaintiff must have his pleadings
8 reviewed by the Court to approve the filing.” (Id.)
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According to plaintiff, “the pre-filing orders did not result in any detriment

10 until March of 201[2].” (4thAC at 9.) Plaintiff “filed a motion in fall of 2010,” the
11 “motion was finally heard in March of 201[2,] and[,] at the end of the hearing, Judge
12 Counelis stated that in the future, Plaintiff must file a $25,000 bond before he can file
13 any pleadings in the Family Law Court.” (Id.) The “purpose of the [March 9, 2012,]
14 hearing was for a ruling on a motion by Plaintiff.” (Id. at 8.) “Judge Counelis did not
15 give notice to Plaintiff” that he would be considering a bond requirement under the
16 VLS and did not set “a hearing to make a determination [whether to] order[] a pre17 filing requirement [or] to discuss the amount” of the bond. (Id. at 9-10.)
18

On June 18, 2012, Kate-Green filed an Ex Parte Request for Move Away,

19 (Exhibit [“Exh.”] 8 to TAC, attached to 4thAC by Declaration Number Two of
20 Michael Smith in Support of 4thAC [“Smith Decl. No. 2”]), seeking an order from the
21 Superior Court authorizing her to relocate the parties’ minor child’s residence from
22 California to Virginia. (4thAC at 5.) Plaintiff filed a responsive declaration to
23 oppose Kate-Green’s motion, but the Superior Court, “based on Judge Counelis[’s]
24 order, refused to accept Plaintiff’s ‘Responsive Declaration.’” (4thAC at 10.)
25 Minutes from the Superior Court provided as follows:
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REJECTED DOCUMENT(S) . . . SUBMITTED BY MICHAEL
WALDEN SMITH FOR THE FOLLOWING REASON(S): NOTICE
OF MOTION/RESPONSIVE DECLARATION/PROOF OF SERVICE
NOT ACCEPTED FOR FILING DUE TO NO BOND ON FILE. PER
MINUTE ORDER DATED 3/9/12[,] COURT MODIFIES
PETITIONER[’]S VEXATIOUS LITIGANT ORDER TO NOW STATE
PETITIONER WILL HAVE TO POST A $25000.00 BOND WITH
THE CLERK OF THE COURT.

6 (Exh. 8 to TAC, attached to Smith Decl. No. 2.) Because the Superior Court rejected
7 plaintiff’s opposition, plaintiff alleges that he “had no way to oppose [Kate-Green’s]
8 motion and [his] child was moved to Virginia with no rebuttal hearing on the issue.”
9 (4thAC at 10.)
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The Superior Court also rejected other filings of plaintiff because plaintiff

11 failed to post a $25,000 bond. (Exh. 8 to TAC, attached to Smith Decl. No. 2.)
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13 II.

The claims.

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In his first claim, plaintiff alleges that “Defendants have ‘applied’ the vexatious

15 litigant statute (WVL 391) unconstitutionally against [him] and his daughter in
16 Family Law Court” and asserts a Section 1983 claim that the “Vexatious Litigant
17 Statute[] as Applied Violates the Equal Protection Clause of the 14th Amendment.”
18 (4thAC at 5.)
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In his second claim, plaintiff alleges a Section 1983 claim for “[v]iolation of

20 the 14th Amendment’s Due Process Clause and 1st Amendment Right to Petition.”
21 (4thAC at 5.)
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In his third claim, plaintiff alleges that the “[i]mposition of [the] VLS To

23 Custody Cases on Its Face and as Applied Is Unconstitutionally Vague and
24 Overbroad” and violates the Fourteenth Amendment. (4thAC at 5.)
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In his fourth claim, plaintiff alleges that the “Vexatious Litigant Statutes as

26 Here Applied against Plaintiff by the Defendants[] Creates a Prior Restraint in
27 Violation of the 1st Amendment Right to Petition.” (4thAC at 5.)
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1

In his fifth claim, plaintiff alleges that the “[u]nwritten Rules and Procedures

2 Implementing Prefiling Orders Violates [the] Due Process Clause of 14th
3 Amendment.” (4thAC at 5.)
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In his sixth claim, plaintiff alleges that the “VLS Functions as an Improper Bill

5 of Attainder.” (4thAC at 5.)
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In his seventh claim, plaintiff alleges that the “VLS Functions as an Improper

7 Ex Post Law (sic).” (4thAC at 5.)
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In his eighth claim, plaintiff alleges that Counelis violated his right to familial

9 association with his daughter by separating plaintiff from his daughter “[w]ithout
10 Consent, Probable Cause, Without Proper Lawful Hearing or Evaluation of Exigent
11 Circumstances . . . BROUGHT about by the void order imposing a $25,000 pre-filing
12 bond issued without a valid hearing and then for lack of filing, used to deny [plaintiff]
13 the right to oppose the motion to move his child to Virginia.” (4thAC at 5.)3
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In his ninth claim, plaintiff alleges that defendants denied him “Rights Under

15 California Constitution, . . . Substantive Due Process, and Procedural Due Process
16 Via Unlawful Application of [the] VLS 391.” (4thAC at 5.)
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In his tenth claim, plaintiff requests “Declaratory Judgment and Injunctive

18 Relief” on the question of the “Constitutionality of State Statutes–that the VLS391
19 California State Statute as applied in [the] Family Law Court Division against Family
20 Law litigants is unconstitutional, violating basic fundamental rights, that do not apply
21 when the VLS931 is applied to litigants litigating in the ‘Civil Court’ Division of the
22 California Superior Court System.” (4thAC at 5.)
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The Court already has dismissed plaintiff’s eighth claim pursuant to its
28 U.S.C. § 1915(e)(2) screening of the 4thAC. (Minute Order, dated September 30,
28 2015 (holding that Counelis is shielded by the doctrine of judicial immunity).)
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DISCUSSION

2 I.

The Eleventh Amendment bars the claims against the Council and Jahr.

3

Defendants move for dismissal on the ground that the Court lacks subject

4 matter jurisdiction over plaintiff’s 42 U.S.C. § 1983 claims because they are barred
5 by the Eleventh Amendment. (Mot. Mem. at 2.) In his Opposition, plaintiff concedes
6 that Jahr is not a proper defendant, (Opp. at 3), but contends that the exception to
7 sovereign immunity set forth in Ex parte Young preserves his claims against the
8 remaining defendants. (Mem. of Law Two at 2 (citing Fitzpatrick v. Bitzer, 427 U.S.
9 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976)).)
10

The Eleventh Amendment prohibits federal courts from hearing suits brought

11 against an unconsenting state. Pennhurst State School & Hosp. v. Halderman, 465
12 U.S. 89, 100, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984), superseded by statute on
13 other grounds, 28 U.S.C. § 1367; Brooks v. Sulphur Springs Valley Elec. Co-Op., 951
14 F.2d 1050, 1053 (9th Cir. 1991) (citations omitted). “Though its language might
15 suggest otherwise, the Eleventh Amendment has long been construed to extend to
16 suits brought against a state by its own citizens, as well as by citizens of other states.”
17 Id. (citations omitted). The Eleventh Amendment’s jurisdictional bar covers not only
18 states but also suits naming state agencies and state officers in their official
19 capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-66, 109 S. Ct. 2304,
20 105 L. Ed. 2d 45 (1989); Brooks, 951 F.2d at 1053.4 The jurisdictional bar “applies
21 whether the relief sought is legal or equitable in nature.” Brooks, 951 F.2d at 1053.
22

A suit against a state may proceed in federal court only if the state consents to

23 waive its sovereign immunity or Congress has abrogated that immunity; the State’s
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A suit against a state official in his or her official capacity is a suit
26 against the official’s office, and as such is no different from a suit against the State
27 itself, which would be barred by the Eleventh Amendment. See Will, 491 U.S. at 6466; see also Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); Stivers v. Pierce,
28 71 F.3d 732, 749 (9th Cir. 1995).
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1 consent or Congress’ intent must be “unequivocally expressed.” Pennhurst State Sch.
2 & Hosp., 465 U.S. at 99. While California has consented to be sued in its own courts
3 pursuant to the California Tort Claims Act, this consent does not constitute consent
4 to be sued in federal court. BV Eng’g v. Univ. of Cal., L.A., 858 F.2d 1394, 1396
5 (9th Cir. 1988); see also Dittman v. Cal., 191 F.3d 1020, 1025-26 (9th Cir. 1999)
6 (“The State of California has not waived its Eleventh Amendment immunity with
7 respect to claims brought under § 1983 in federal court[.]”.) Furthermore, in Will, the
8 Supreme Court considered whether Congress in passing 42 U.S.C. § 1983, “exercised
9 its undoubted power under § 5 of the Fourteenth Amendment to override [Eleventh
10 Amendment] immunity,” and concluded that Congress “had no intention to disturb
11 the States’ Eleventh Amendment immunity.” 491 U.S. at 65-66. The Supreme Court
12 held that “neither a State nor its officials acting in their official capacities are
13 ‘persons’ under § 1983.” Id. at 71; see also Cortez v. County of Los Angeles, 294
14 F.3d 1186, 1188 (9th Cir. 2002) (explaining that “a state and its officials sued in
15 their official capacity are not considered ‘persons’ within the meaning of § 1983, due
16 to the sovereign immunity generally afforded to states by the Eleventh Amendment”
17 (citing Will, 491 U.S. at 70-71)).
18

The Eleventh Amendment bar, however, is not absolute. The Supreme Court

19 recognized an important exception to Eleventh Amendment immunity in Ex parte
20 Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), wherein it held that the
21 Eleventh Amendment does not bar suit against a state official acting in violation of
22 federal law. Id. at 159-60. The doctrine of Ex parte Young “is premised on the
23 notion that a state cannot authorize a state officer to violate the Constitution and laws
24 of the United States. Thus, an action by a state officer that violates federal law is not
25 considered an action of the state and, therefore, is not shielded from suit by the state’s
26 sovereign immunity.” Natural Resources Defense Council v. Cal. Dep’t of Transp.,
27 96 F.3d 420, 422 (9th Cir. 1996) (citing Pennhurst, 465 U.S. at 102; Ex parte Young,
28 209 U.S. at 159-60). “[U]nder Ex parte Young, . . . ‘a state official in his or her
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1 official capacity, when sued for injunctive relief, is a person under § 1983, because
2 official-capacity actions for prospective relief are not treated as actions against the
3 State.’” Wolfe v. Strankman, 392 F.3d 358, 365 (9th Cir. 2004) (quoting Will, 491
4 U.S. at 71 n.10). A plaintiff alleging a claim pursuant to the Ex parte Young
5 exception to sovereign immunity may not seek an award of retroactive relief that
6 requires the payment of funds from the state treasury, Natural Resources Defense
7 Council, 96 F.3d at 422, but rather may only seek prospective injunctive, id., or
8 declaratory relief, Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 847 (9th Cir.
9 2002) (as amended).
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A.

The Eleventh Amendment bars the claims against the Council

12

The Ninth Circuit held in Strankman,5 that the Council is not a proper party to

13 a suit pursuant to 42 U.S.C. § 1983 because it is shielded by the State of California’s
14 sovereign immunity. 392 F.3d at 364. In Strankman, the plaintiff filed a civil rights
15 action seeking a declaration that the VLS is unconstitutional against the State of
16 California, California’s Judicial Council, various California trial and appellate court
17 judges, and a Judicial Council employee. Id. at 360. The Ninth Circuit, with respect
18 to the Council, affirmed the district court’s dismissal of the claims, explaining that
19 sovereign immunity protects not only the state, but also state agencies from suit under
20 Section 1983. Id. at 364. The Strankman court concluded that the Judicial Council
21 was “clearly a state agency,” id., and therefore held that the Council was not a
22 “person” within the meaning of Section 1983, id. at 367.
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5

The respondent in Strankman was Justice Gary E. Strankman, Presiding
Justice of the First Appellate District of the California Court of Appeal. Following
partial reversal and remand by the Ninth Circuit, the plaintiff in Strankman was again
denied relief in the district court and appealed once more to the Ninth Circuit. The
respondent in the subsequent case was Ronald George, Chief Justice of the California
Supreme Court. (See 486 F.3d at 1120.) For ease of reference, the Court refers to the
subsequent case as Wolfe.
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1

Accordingly, plaintiff’s Section 1983 claims against the Council are subject to

2 dismissal for lack of subject matter jurisdiction. As the Council is a state agency, the
3 Eleventh Amendment bars plaintiff’s claims against it. Moreover, plaintiff cannot
4 state a Section 1983 claim against the Council pursuant to the Ex parte Young
5 exception to sovereign immunity because that exception applies only to state officials
6 and not to a state agency, such as the Council.
7

As such, the Court recommends that defendants’ Motion be granted to the

8 extent it seeks dismissal of plaintiff’s claims against the Council. The Court further
9 recommends that the dismissal be with prejudice, as the Court has granted plaintiff
10 two opportunities to amend his claims against the Council and plaintiff has failed to
11 cure the defects,6 and it is clear that the defects of the claims against the Council are
12 incapable of being cured by amendment.7
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14

6

Although “a pro se litigant is entitled to notice of the complaint’s
15 deficiencies and an opportunity to amend prior to dismissal of the action,” the Court
16 need not grant an opportunity to amend if “it is absolutely clear that no amendment
17 can cure the defect.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir 1995) (per
curiam) (citations omitted); see also Cato v. United States, 70 F.3d 1103, 1106 (9th
18 Cir. 1995) (“A pro se litigant must be given leave to amend his or her complaint, and
19 some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.”).
20
7
Dismissal with prejudice is appropriate when a district court has given
21
a pro se plaintiff multiple opportunities to amend his complaint and the party has
22
failed to correct the defects. See, e.g., Zavala v. Bartnik, 348 F. App’x 211, 213 (9th
23 Cir. 2009) (“Dismissal with prejudice was proper because Zavala was given two prior
24 opportunities to amend his complaint in order to correct the deficiencies identified by
the district court but failed to do so.”); Smith v. Solis, 331 F. App’x 482, 482-83 (9th
25 Cir. 2009) (“The district court properly dismissed the action with prejudice because
26 Smith’s second amended complaint did not state a claim for deliberate indifference
27 and Smith failed to correct the defects.”); Ismail v. County of Orange, 917 F. Supp.
2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s discretion over amendments is
28
(continued...)
13

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1

B.

The Eleventh Amendment bars the claims against Jahr

2

Defendants also seek to dismiss plaintiff’s claims against Jahr on the ground

3 that the Eleventh Amendment bars the claims. Defendants further contend that the
4 exception to sovereign immunity set forth in Ex parte Young does not apply because
5 Jahr, now retired, has no current connection to the enforcement of the VLS and
6 plaintiff has no claim for prospective relief against Jahr. (Mot. Mem. at 4.) Plaintiff
7 “agrees with Defendants’ argument that . . . Jahr is not a proper defendant.” (Opp.
8 at 3.)
9

“‘A state and its officials sued in their official capacity are not considered

10 persons within the meaning of § 1983.’” Strankman, 392 F.3d at 364 (quoting Cortez,
11 294 F.3d at 1188). Eleventh Amendment immunity extends to these officials because
12 official-capacity suits ‘generally represent only another way of pleading an action
13 against an entity of which an officer is an agent.’” Id. at 364-65 (citing Hafer v.
14 Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)). While the
15 exception to sovereign immunity set forth in Ex parte Young allows a plaintiff to
16 bring a Section 1983 claim against a state official in his or her official capacity for
17 injunctive relief, id., this exception does not apply to plaintiff’s claims against former
18 Administrative Director Jahr for two reasons. First, it is undisputed that Jahr is
19 retired and no longer has any responsibility for enforcing the VLS. Plaintiff,
20 therefore, has no basis for seeking prospective injunctive or declaratory relief against
21 Jahr. Second, for the Ex parte Young exception to apply, an official must have some
22 connection to the enforcement of the statute. Ex parte Young, 209 U.S. at 157. Jahr
23 has no such connection, since he is no longer the Administrative Director of the
24 Judicial Council.
25
26

7

(...continued)
27 especially broad ‘where the court has already given a plaintiff one or more
opportunities to amend his complaint.’” (quoting DCD Programs, Ltd. v. Leighton,
28 833 F.2d 183, 186 n.3 (9th Cir. 1987))), appeal filed (Oct. 30, 2013) (No. 13-56866).
14

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1

For the foregoing reasons, the Court concludes that plaintiff’s claims against

2 Jahr are barred by the Eleventh Amendment, and the exception set forth in Ex parte
3 Young does not apply. Accordingly, the Court recommends that the Motion be
4 granted as to the claims against Jahr. Further, it is recommended that the dismissal
5 be with prejudice, as plaintiff has failed to cure such defects by amendment of the
6 pleadings, and it is clear that such defects are incapable of being cured by
7 amendment.
8
9

C.

10
11

The Eleventh Amendment does not bar the claims against CantilSakauye and Hoshino

Plaintiff sues Cantil-Sakauye8 and Hoshino in their administrative capacity,

12 (4thAC at 3-4), and seeks only prospective injunctive and declaratory relief against
13 them. (Id. at 5, 12-14.) “[U]nder Ex parte Young, . . . ‘a state official in his or her
14 official capacity, when sued for injunctive relief, is a person under § 1983, because
15 official-capacity actions for prospective relief are not treated as actions against the
16 State.’” Strankman, 392 F.3d at 365 (quoting Will, 491 U.S. at 71 n.10). Cantil17 Sakauye and Hoshino, therefore, are proper defendants under the Ex parte Young
18 exception to sovereign immunity. Id. at 365, 366 (holding that the plaintiff’s claims
19 against California Supreme Court Chief Justice Ronald M. George, who was chair of
20 the Judicial Council, “for prospective injunctive and declaratory relief . . . fall within
21 the Ex parte Young exception to sovereign immunity and are properly brought under
22 § 1983”); Pierce v. Cantil-Sakauye, 628 F. App’x 548, 548-49 (9th Cir. 2016)
23 (holding that “Chief Justice Cantil-Sakauye, sued in her administrative capacity as
24
25

8

Although Cantil-Sakauye is the Chief Justice of the California Supreme
26 Court, plaintiff does not sue Cantil-Sakauye in her judicial capacity. Cf. Strankman,
27 392 F.3d at 366 (distinguishing the plaintiff’s suit against the Chief Justice in the
Justice’s administrative capacity as the Chair of the Judicial Council from his suit
28 against the Justice in his judicial capacity).
15

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1 Chair of the Judicial Council of California, is a proper defendant under the Ex parte
2 Young exception to sovereign immunity”) (citing Strankman, 392 F.3d at 365-66).9
3

The Court is not persuaded otherwise by defendants’ argument that Strankman

4 “did not discuss the sufficiency of the allegations pled in the complaint as to whether
5 the defendants had direct involvement in administering the vexatious litigant statute.”
6 (Mot. Mem. at 5.) Citing authority from the Eleventh and Fifth Circuits, defendants
7 maintain that, to trigger the Ex parte Young exception, the official must have some
8 “direct” responsibility for the enforcement of the allegedly unconstitutional statute
9 (Mot. Mem. at 4 (citing Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341-42
10 (11th Cir. 1999)), and that a plaintiff may not avoid Eleventh Amendment immunity
11 “‘simply by naming an individual state officer as a party in lieu of the state.’” (Id.
12 (quoting Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001)).
13

In Ex parte Young, the Supreme Court explained that “[i]n making an officer

14 of the state a party defendant in a suit to enjoin the enforcement of an act alleged to
15 be unconstitutional, it is plain that such officer must have some connection with the
16 enforcement of the act, or else it is merely making him a party as a representative of
17 the state, and thereby attempting to make the state a party.” 209 U.S. at 157.
18 Contrary to defendants’ contention, Cantil-Sakauye and Hoshino are directly
19 connected to the enforcement of the VLS. The Ninth Circuit has confirmed that the
20 Chief Justice, in her administrative capacity as the Director of the Judicial Council,
21 is a proper party under the Ex parte Young exception in a suit challenging the
22 constitutionality of the VLS. See Strankman, 392 F.3d at 365, 366; Pierce, 628 F.
23 App’x at 548-49. The Ninth Circuit also has found that California Supreme Court
24 official who administered vexatious litigant orders in his official capacity was a
25
26
9

The position of “Chair” of the Judicial Council now is referred to as
“Director” of the Judicial Council. See Wolfe, 392 F.3d at 365, 366; Pierce, 628 F.
28 App’x at 548-49.
27

16

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1 proper defendant under the Ex parte Young exception. Wolfe, 486 F.3d 1120, 11232 24 (9th Cir. 2007). Although the Ninth Circuit did not discuss the sufficiency of the
3 plaintiffs’ allegations in conjunction with these holdings, defendants have advanced 4 and this Court perceives - no rationale for concluding that the absence of such a
5 discussion renders the Ninth Circuit’s holdings inapplicable here.
6

This is not a case where the officials named are unrelated to any alleged

7 unconstitutional actions of enforcement. Cf. Ex parte Young, 209 U.S. at 157
8 (explaining that “neither of the state officers named held any special relationship to
9 the particular statute alleged to be unconstitutional,” that “[t]hey were not expressly
10 directed to see to its enforcement,” and that, “[i]f, because they were law officers of
11 the state, a case could be made for the purpose of testing the constitutionality of the
12 statute, by an injunction suit brought against them, then the constitutionality of every
13 act passed by the legislature could be tested by a suit against the governor and the
14 attorney general”). Here, the Judicial Council is specifically charged in the VLS with
15 a role in the act’s enforcement. See Cal. Code Civ. Proc. § 391.7.
16

Thus, the Court concludes that Cantil-Sakauye and Hoshino are sufficiently

17 connected in their official capacity to the VLS’s enforcement for purposes of falling
18 within the exception under Ex parte Young regarding sovereign immunity.
19 Accordingly, it is recommended that the Court deny the Motion as to these defendants
20 to the extent it is based on Eleventh Amendment immunity.
21
22 II.

Plaintiff has stated a claim for relief.

23

Defendants also move for dismissal pursuant to Federal Rule of Civil

24 Procedure 12(b)(6) on the ground that plaintiff has failed to state a claim upon which
25 relief might be granted. Defendants contend that the Ninth Circuit’s decision in
26 Wolfe, is controlling, and that the Ninth Circuit has found that the VLS was not
27 unconstitutionally vague, did not violate the Due Process or Equal Protection Clauses
28 of the Fourteenth Amendment, and was not an ex post facto law or bill of attainder.
17

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1 (Mot. Mem. at 6.) Defendants ask the Court to dismiss the similar claims raised in
2 the 4thAC alleging that the VLS violates the Due Process and Equal Protection
3 Clauses, is void for vagueness, constitutes an improper ex post facto law, and is an
4 improper bill of attainder.10 (Mot. Mem. at 5-6.)
5
6

A.

The due process and equal protection claims

7

Plaintiff alleges that the VLS, both as applied to family court litigants in

8 general and as applied to him specifically, violates the Due Process and Equal
9 Protection Clauses of the Fourteenth Amendment. For the reasons stated herein, the
10 Court concludes that plaintiff has failed to state a claim that the VLS, as applied to
11 all family court litigants, violates the Fourteenth Amendment, but finds that he has
12 stated a claim that the VLS, as applied to him individually, violates the Due Process
13 and Equal Protection Clauses.
14
15

1.

As applied to family court litigants generally, the VLS does not

16

violate the Due Process or Equal Protection Clauses

17

Wolfe involved a challenge to the VLS by a civil plaintiff who had filed a

18 number of pro se complaints involving San Francisco taxicab companies. Wolfe, 486
19 F.3d at 1123. In rejecting the plaintiff’s argument that the VLS violated the
20
21
22
23
24
25
26
27
28

10

Defendants do not move to dismiss plaintiff’s Section 1983 claim for
“[v]iolation of the . . . 1st Amendment Right to Petition,” his Section 1983 claim that
the VLS as applied to plaintiff “Creates a Prior Restraint in Violation of the 1st
Amendment Right to Petition,” or his claim that the VLS violates his substantive and
procedural due process rights under California law. (4thAC at 5.) The Court
therefore does not consider whether these claims are subject to dismissal. See Central
District of California Local Rule [“L.R.”] 7-4 (providing that a court “may decline to
consider a motion unless it meets the requirements of L.R. 7-4 through 7-8”); L.R. 75(a) (providing that a party shall file with a notice of motion a “complete
memorandum in support thereof and the points and authorities upon which the
moving party will rely”).
18

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1 Fourteenth Amendment, the Wolfe court distinguished the Supreme Court’s decision
2 in Boddie v. Connecticut, in which the Supreme Court considered whether
3 Connecticut’s procedures for commencing litigation, including requirements for
4 payment of court fees and costs for service of process, restricted welfare recipients’
5 access to the courts in their effort to bring an action for divorce in violation of the
6 Due Process Clause of the Fourteenth Amendment. 401 U.S. 371, 372, 91 S. Ct. 780,
7 28 L. Ed. 2d 113 (1971). The Boddie court held that the Due Process Clause entitles
8 indigent litigants to file for divorce even if they cannot pay a filing fee because of the
9 special status of marriage and divorce in our society. Id. at 383.
10

The Ninth Circuit in Wolfe declined to find that Boddie compelled the

11 conclusion that the state procedure at issue in California’s VLS violated due process.
12 First, the Ninth Circuit noted that “Boddie did not prohibit all financial barriers to
13 litigation, regardless of frivolity or vexatiousness,” Wolfe, 486 F.3d at 1126, and that
14 the Supreme Court in other cases has distinguished the infringement of the right of
15 divorce from the right of access to the courts. Id. (citing United States v. Kras, 409
16 U.S. 434, 444, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973) (holding that access to
17 bankruptcy courts does not “rise to the same constitutional level as divorce”)).
18 Second, the Ninth Circuit determined that, unlike the infringement in Boddie, “the
19 California vexatious litigant statute [did] not deprive [the plaintiff] of the opportunity
20 to vindicate a fundamental right in court.” Wolfe, 486 F.3d at 1126.
21

After concluding that the VLS did not infringe a fundamental right, the Wolfe

22 court reviewed the VLS for a rational basis. Wolfe, 486 F.3d at 1126. The court
23 concluded that “California’s vexatious litigation statute is rationally related to a
24 legitimate state purpose,” and reasoned that “vexatious litigants tie up a great deal of
25 a court’s time” and that “the state has an interest in protecting defendants from
26 harassment by frivolous litigation.” Id. (citation and internal quotation marks
27 omitted). The court, therefore, concluded that the VLS does not violate the Due
28 Process Clause. Id.
19

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1

The Wolfe court also concluded that the VLS does not violate the Equal

2 Protection Clause. Wolfe, 486 F.3d at 1126-27. The Ninth Circuit determined that
3 “[a] state can rationally distinguish litigants who sue and lose often, sue the same
4 people for the same thing after they have lost, and so on, from other litigants,” id., and
5 concluded that the statute’s bond requirement was rationally-based. Id. at 1127. The
6 Ninth Circuit reasoned that “[b]efore the court can require security, it must determine
7 in an individualized hearing that ‘the plaintiff is a vexatious litigant and that there is
8 not a reasonable probability that he will prevail in the litigation.’” Id. (citing Cal.
9 Code Civ. Proc. §§ 391.1, 391.2; Muller v. Tanner, 2 Cal. App. 3d 445, 450 n.2, 82
10 Cal. Rptr. 738 (Cal. Ct. App. 1969)). The court in Wolfe further found that, under the
11 VLS, a “court must also make an individualized determination of the appropriate
12 amount of security.” 486 F.3d at 1127 (citing Cal. Code Civ. Proc. § 391.3; Muller,
13 2 Cal. App. 3d at 465 (holding that a “judge c[an] fix the amount of the fees from his
14 knowledge of legal practice,” but that the judge cannot simply “look at a complaint
15 and determine, without further evidence, the time and labor which will be expended
16 to defeat the claim,” particularly where “[n]ot even the nature of defendant’s defense
17 was disclosed”)).
18

Plaintiff maintains that the VLS violates the Due Process and Equal Protection

19 Clauses only as applied to family court litigants and not generally as applied to civil
20 court litigants. (4thAC at 5.) To the extent plaintiff contends that Wolfe is
21 distinguishable because it involved a civil court litigant, rather than a family court
22 litigant, the Court is not persuaded. Admittedly, the plaintiff in Wolfe did not seek
23 to “vindicate a fundamental right in court,” 486 F.3d at 1126, whereas in Boddie, the
24 plaintiffs’ due process challenge did involve “the adjustment of a fundamental human
25 relationship.” Id. This distinction, however, does not render Wolfe inapplicable.
26

The Ninth Circuit recently concluded that the VLS, as applied to parents

27 involved in custody disputes, does not violate the Due Process and Equal Protection
28 Clauses of the Fourteenth Amendment. Pierce, 628 F. App’x at 548-49. In Pierce,
20

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1 the Ninth Circuit held (without deciding) that even “assuming heightened scrutiny
2 applies,” instead of rational basis analysis, “California’s vexatious litigant statute
3 (VLS) . . . does not violate the Equal Protection or Due Process rights of parents
4 involved in custody disputes.” Id. at 549. The court reasoned that “California has
5 ‘sufficiently important interests’ . . . in ensuring the orderly resolution of disputes and
6 protecting parents and courts from vexatious litigants.” Id. (quoting Zablocki v.
7 Redhail, 434 U.S. 374, 388, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978)). The Pierce court
8 explained that “[t]he VLS is ‘closely tailored,’ . . . to advance those interests.” Id.
9 (citing Zablocki, 434 U.S. at 388).
10

The Ninth Circuit in Pierce, like the court in Wolfe, relied upon the Supreme

11 Court’s decision in Boddie, where “a mandatory filing fee wasn’t sufficiently tied to
12 the state’s interest in preventing frivolous litigation to justify overriding ‘the interest
13 of [indigents] in having access to the only avenue open for dissolving their allegedly
14 untenable marriages.’” 628 F. App’x at 549 (quoting Boddie, 401 U.S. at 381). The
15 Pierce court reasoned, however, that, “[u]nlike a mandatory fee, the VLS doesn’t
16 create an insurmountable hurdle to the ‘adjustment of a fundamental human
17 relationship.’” Id. (quoting Boddie, 401 U.S. at 383). To the contrary, the Pierce
18 court explained that the VLS “calls for an individualized determination that a litigant
19 is vexatious based on specific instances of harassing or frivolous litigation tactics.”
20 Id. (citing Cal. Civ. Proc. Code §§ 391(b), 391.2-391.3; Wolfe, 486 F.3d at 1124-25).
21 It “then requires a court to examine a pro se parent’s proposed filings to ensure that
22 ‘the litigation has merit and has not been filed for the purposes of harassment or
23 delay’ before allowing the parent to seek a custody-order modification,” id. (citing
24 Cal. Civ. Proc. Code § 391.7(b); Wolfe, 486 F.3d at 1126-27), and it also requires “if
25 a court orders a vexatious litigant to post security,” that the court “‘make an
26 individualized determination of the appropriate amount.’” Id. (quoting Wolfe, 486
27 F.3d at 1126-27) (citing Cal. Civ. Proc. Code § 391.7(b)).
28 / / /
21

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1

The Pierce court, citing the Supreme Court’s decision in M.L.B. v. S.L.J., 519

2 U.S. 102, 128, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996), further reasoned that
3 “applying the VLS to parents in custody disputes” does not, as in M.L.B., “‘destroy
4 permanently all legal recognition of the parental relationship.’” 628 F. App’x at 549
5 (quoting M.L.B., 519 U.S. at 128). Rather, while the statute “does pose an additional
6 hurdle to modifying a custody order,” it imposes this hurdle “only after the litigant
7 has been found to be vexatious.” Id. The Ninth Circuit therefore held that the statute
8 “does not unnecessarily perpetuate the ‘unique kind of deprivation’ [i.e., a
9 termination of parental rights] that imposing record preparation fees on parents
10 appealing parental status termination decrees did [in M.L.B.]” Id. (citing M.L.B., 519
11 U.S. at 127).
12

Pursuant to Wolfe (and Pierce), plaintiff’s due process and equal protection

13 challenges to the VLS, as applied to all family court litigants, necessarily fails.
14 Plaintiff’s claims are the same type of claims as those advanced in Wolfe and almost
15 identical to those advanced in Pierce. In both cases, the Ninth Circuit refused to find
16 a categorical due process or equal protection violation. Accordingly, the Court
17 recommends that the Motion be granted as to plaintiff’s claims that the VLS, as
18 applied to family court litigants, violates the Due Process and Equal Protection
19 Clauses of the Fourteenth Amendment. The Court further recommends that the
20 claims be dismissed with prejudice, as plaintiff has had multiple opportunities to
21 amend these claims and has failed to cure the defects, and because it is clear that the
22 claims are incapable of being cured by amendment.
23
24
25
26

2.

Plaintiff has stated a claim that the VLS, as applied to him,
violated the Due Process and Equal Protection Clauses

Plaintiff also challenges the validity of the VLS as applied specifically to him.

27 Cf. Boddie, 401 U.S. at 379 (confirming that its cases “establish that a statute or a
28 rule may be held constitutionally invalid as applied when it operates to deprive an
22

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1 individual of a protected right although its general validity as a measure enacted in
2 the legitimate exercise of state power is beyond question”). The 4thAC, construed
3 in the light most favorable to plaintiff, states a claim that the VLS, as applied,
4 violated plaintiff’s right to due process and equal protection.
5

The 4thAC alleges that, at a hearing on March 9, 2012, on an unrelated motion

6 brought by plaintiff, Judge Counelis entered an order providing that “[p]laintiff must
7 file a $25,000 bond before he can file any pleadings in the Family Law Court,”
8 without providing plaintiff notice that he would be entering and/or amending a VLS
9 order, and without conducting a hearing to determine, among other things, the
10 appropriate amount of the security. (4thAC at 9; see also id. at 5, 8, 9, 10.)
11 Thereafter, on June 18, 2012, Kate-Green, the mother of plaintiff’s minor child, filed
12 an Ex Parte Request for Move Away (Exh. 8 to TAC, attached to Smith Decl. No. 2),
13 requesting the Superior Court to enter an order authorizing her to relocate the
14 residence of plaintiff’s minor child from California to Virginia (4thAC at 5). Plaintiff
15 filed a responsive declaration to oppose Kate-Green’s motion, but the Superior Court
16 rejected his filing because he had failed to post the requisite $25,000 bond. (4thAC
17 at 10; Exh. 8 to TAC, attached to Smith Decl. No. 2.) Thus, plaintiff had no way to
18 oppose the motion, and the court thereafter granted the motion, allowing Kate-Green
19 to relocate their child to Virginia. (4thAC at 10; see also id. 5.) The Superior Court
20 also rejected other filings of plaintiff’s because he had failed to post a $25,000 bond.
21 (Exh. 8 to TAC, attached to Smith Decl. No. 2.)
22

The Court construes the 4thAC as asserting two due process claims: (1) A due

23 process claim that the VLS, as applied to plaintiff, deprived him of his right to access
24 the courts to oppose Kate-Green’s motion to move their minor child from California
25 to Virginia, and (2) a due process claim that the VLS, as applied to plaintiff, deprived
26 plaintiff of his right to access the courts to seek affirmative relief. The Court
27 considers each claim in turn.
28 / / /
23

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1
2

a.

Right of access to oppose Kate-Green’s motion

The Fourteenth Amendment to the Constitution provides that no state shall

3 “deprive any person of life, liberty, or property, without due process of law.” U.S.
4 Const. amend XIV. In Boddie, the Supreme Court recognized that “grave” due
5 process concerns arise when a plaintiff invokes the judicial process and a defendant
6 is not provided with an opportunity to respond. 401 U.S. at 376. The Court
7 explained that “American society . . . bottoms its systematic definition of individual
8 rights and duties, as well as its machinery for dispute settlement[,] on the common9 law model,” looking to the “courts . . . . for the implementation of a regularized,
10 orderly process of dispute settlement,” and that “[o]nly by providing that the [courts]
11 must function strictly within the[] bounds” of the due process clauses’ guarantee that
12 one may not be deprived of his rights without due process of law “can we hope to
13 maintain an ordered society that is also just.” Id. at 375. The court noted that the
14 “legitimacy” of a state’s system of courts “stands unimpaired” “even where some
15 [plaintiffs] are denied access to its use” provided that “recognized, effective
16 alternatives” to judicial dispute resolution remain. Id. at 375-76. In contrast, the
17 court noted that “the successful invocation of this governmental power [of a state’s
18 judicial system] by plaintiffs has often created serious problems for defendants’
19 rights.” Id. at 376. The risk to defendants, unlike that to plaintiffs, is “grave,” for
20 once a plaintiff accesses the courts, there is no alternative forum in which the
21 defendant can resolve the dispute. Id. (explaining that, “[a]t that point [when the
22 plaintiff has filed suit], the judicial proceeding becomes the only effective means of
23 resolving the dispute at hand and denial of a defendant’s full access to that process
24 raises grave problems for its legitimacy.”)
25

Here, plaintiff has alleged that the state, pursuant to the VLS, prevented him

26 from opposing Kate-Green’s motion to remove his minor child out of state.
27 Specifically, officials from the Superior Court rejected plaintiff’s opposition to Kate28 Green’s motion because he had not posted a $25,000 bond, leaving plaintiff with “no
24

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1 way to oppose the motion,” and resulting in the family court authorizing the removal
2 of his child to Virginia, “with no rebuttal hearing on the issue.” (4thAC at 10.) These
3 allegations, construed in plaintiff’s favor, establish that the VLS order and the
4 Superior Court’s enforcement of that order, foreclosed entirely plaintiff’s ability to
5 oppose Kate-Green’s motion to move their child out of state. On these facts, the
6 application of the VLS infringed plaintiff’s right of access to the courts to defend (not
7 prosecute) a claim, which falls within the type of infringement that raises “grave” due
8 process concerns. See Boddie, 401 U.S. at 376.
9

“[D]ue process requires, at a minimum, that absent a countervailing state

10 interest of overriding significance, persons forced to settle their claims of right and
11 duty through the judicial process must be given” notice and a “meaningful
12 opportunity to be heard.” Boddie, 401 U.S. at 377. In Boddie, the Supreme Court
13 concluded that the state’s refusal to admit welfare recipients to its courts without
14 payment of court fees and costs, when the courts were the sole means in Connecticut
15 for obtaining a divorce, “must be regarded as the equivalent of denying them an
16 opportunity to be heard upon their claimed right to a dissolution of their marriages,
17 and, in the absence of a sufficient countervailing justification for the State’s action,
18 a denial of due process.” Id. at 380-81. The Supreme Court declared that the state’s
19 interest in the prevention of frivolous litigation “is substantial, its use of court fees
20 and process costs to allocate scarce resources is rational, and its balance between the
21 defendant’s right to notice and the plaintiff’s right to access is reasonable.” Id. at
22 381. However, “none of these considerations is sufficient to override the interest of
23 the[] plaintiff-appellants in having access to the only avenue open for dissolving their
24 allegedly untenable marriages,” explaining that “[n]ot only is there no necessary
25 connection between a litigant’s assets and the seriousness of his motives in bringing
26 suit, but it is here beyond present dispute that appellants bring these actions in good
27 faith.” Id. The court further reasoned that “other alternatives exist to fees and cost
28 / / /
25

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1 requirements as a means for conserving the time of courts and protecting parties from
2 frivolous litigation.” Id. at 381-82.
3

The Ninth Circuit has defined California’s interests in enforcing the VLS as

4 “protecting defendants from harassment by frivolous litigation” and preventing
5 vexatious litigants from “t[ying] up a great deal of a court’s time, denying that time
6 to litigants with substantial cases.” Wolfe, 486 F.3d at 1126; see also Pierce, 628 F.
7 App’x at 549 (identifying California’s interest in the context of a vexatious family
8 law litigant as “protecting parents” and not just defendants generally). The Ninth
9 Circuit in Wolfe held that this interest is rationally-related to California’s legitimate
10 purpose in enacting the VLS. Cf. Wolfe, 486 F.3d at 1126. Accordingly, the state’s
11 interest in protecting defendants and the courts from vexatious litigants is substantial,
12 its requirement of security by vexatious litigants when a court determines that the
13 plaintiff does not have a reasonable probability of success on the merits is rational,
14 and its balance between a plaintiff’s right of access and the right of defendants and
15 the courts to be free from frivolous litigation is reasonable. Cf. Boddie, 401 U.S. at
16 381.
17

However, while the VLS itself - both on its face and as applied to family court

18 litigants - is rationally related to a legitimate state purpose of protecting defendants
19 from harassment by frivolous litigation and preventing vexatious litigants from
20 wasting judicial resources, as applied to plaintiff on the allegations construed in his
21 favor, the State’s substantial interests are not sufficient to override plaintiff’s due
22 process interest in having access to the courts to defend Kate-Green’s motion.
23

Both Wolfe and Pierce are distinguishable, and do not bar plaintiff’s as-applied

24 due process and equal protection claims. Both of these cases involved the application
25 of the VLS to underlying litigation initiated by a plaintiff. In contrast here, plaintiff
26 alleges that the Superior Court applied the VLS to prohibit him from defending a
27 post-judgment motion brought by Kate-Green. Although the 4thAC does not clearly
28 articulate whether plaintiff was characterized as the “plaintiff” or “defendant” in the
26

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1 underlying family court litigation, this initial characterization is not determinative of
2 the parties’ litigation stance vis-a-vis Kate-Green’s motion to move the parties’ minor
3 child to Virginia. Family courts retain jurisdiction over child custody matters and a
4 party initially named as a defendant in a custody proceeding may move the trial court
5 post-judgment for a modification of the child custody order, thereby acting in the
6 litigation posture of a plaintiff in the post-judgment litigation. Thus, because Kate7 Green filed the motion seeking an ex parte order authorizing her to move the minor
8 child from California to Virginia, on the facts alleged and construed in plaintiff’s
9 favor, Kate-Green was acting as a plaintiff when she sought this relief, and plaintiff
10 was acting as a defendant in opposing it.
11

On these facts, prohibiting plaintiff from opposing the motion to move his child

12 across the country was not rationally related to the State’s legitimate purpose for
13 enacting the VLS, i.e., to protect parent-defendants and courts from vexatious
14 litigants. The VLS defines “vexatious litigant” as a person who (1) “has commenced,
15 prosecuted, or maintained in propria persona” a prescribed number of unsuccessful
16 litigations, (2) “repeatedly relitigates or attempts to relitigate, in propria persona” the
17 validity of prior unsuccessful determinations, (3) “repeatedly files unmeritorious
18 motions, pleadings, or other papers,” or (4) “[h]as previously been declared to be a
19 vexatious litigant by any [court] proceeding based upon the same or substantially
20 similar facts.” Cal. Code Civ. Proc. § 391(b)(1)-(4). The VLS, as relevant here,
21 authorizes a “defendant” to move the court, “upon notice and hearing, for an order
22 requiring the plaintiff to furnish security.” Id. § 391.1. “The motion for an order
23 requiring the plaintiff to furnish security shall be based upon the ground, and
24 supported by a showing, that the plaintiff is a vexatious litigant and that there is not
25 a reasonable probability that he or she will prevail in the litigation against the moving
26 defendant.” Id. “[I]f, after hearing the evidence upon the motion, the court
27 determines that the plaintiff is a vexatious litigant and that there is no reasonable
28 probability that the plaintiff will prevail in the litigation against the moving
27

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1 defendant, the court shall order the plaintiff to furnish, for the benefit of the moving
2 defendant, security in such amount and within such time as the court shall fix.” Id.
3 § 391.3. “When security that has been ordered furnished is not furnished as ordered,
4 the litigation shall be dismissed as to the defendant for whose benefit it was ordered
5 furnished.” Id. § 391.4.
6

The VLS’s definition of “vexatious litigant” and its provisions for relief

7 unequivocally establish that the act is intended to shield defendants from a vexatious
8 plaintiff’s action. The VLS does not protect plaintiffs filing or maintaining suit. Nor
9 does the VLS protect those, such as Kate-Green, who bring a motion for post10 judgment affirmative relief against a vexatious litigant simply because the vexatious
11 litigant, if he were a plaintiff filing a suit instead of defending one, would fall within
12 the parameters of the act. Cf. John v. Superior Ct. of Los Angeles County, No.
13 S222726, 2016 Cal. LEXIS 2562, *18 (Cal. May 5, 2016) (holding that the VLS does
14 not apply to self-represented vexatious litigants who, as defendants, appeal a
15 judgment or interlocutory order in an action filed against them); Mahdavi v. Superior
16 Ct., 166 Cal. App. 4th 32, 41, 82 Cal. Rptr. 3d 121 (2008) (same), overruled in part
17 on different grounds by John, 2016 Cal. LEXIS 2562. Thus, the Superior Court’s
18 enforcement of the VLS bond order, which deprived plaintiff of the opportunity to
19 oppose the motion to remove his child from the state, bore no relationship to the
20 State’s interest in protecting defendants and the courts from litigation or filings by
21 vexatious litigants.

Cf. John, 2016 Cal. LEXIS 2562, at *2-3 (holding that

22 application of the VLS’s prefiling requirements to a self-represented litigant
23 previously declared a vexatious litigant seeking to appeal an adverse judgment in an
24 action where he or she was the defendant would impede the litigant’s right of access
25 to the appellate courts without advancing the underlying purpose of the vexatious
26 litigant statutes).
27

Furthermore, any state interest did not override plaintiff’s interests because, on

28 the facts alleged, the judicial forum – by virtue of Kate-Green’s choice to file a
28

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1 motion seeking relief – was the only avenue open to plaintiff to resolve the dispute.
2 Cf. Boddie, 401 U.S. at 376. As the Supreme Court noted in Boddie, when
3 infringement of the right to access the courts impedes a defendant’s ability to defend
4 litigation, “grave” concerns arise because the judicial proceeding becomes the only
5 forum in which to resolve the dispute. Id. Compare Pierce, 628 F. App’x at 549
6 (explaining that Pierce was not like the deprivation in Boddie because “[u]nlike a
7 mandatory fee, the VLS doesn’t create an insurmountable hurdle”).
8

For these reasons, as well as for the reasons discussed hereafter, the application

9 of the VLS to bar plaintiff’s opposition to Kate-Green’s motion to remove their minor
10 child from California was not rationally related to a legitimate state interest. Plaintiff
11 thus has stated a claim that the VLS, as applied, violated his rights under the Due
12 Process and Equal Protection Clauses of the Fourteenth Amendment. Accordingly,
13 the Court recommends that the Motion be denied as to these claims.
14
15
16

b.

Right of access to seek affirmative relief

Plaintiff also claims that defendants deprived him of his right to access the

17 courts to seek affirmative relief. Although Wolfe and Pierce rejected similar due
18 process and equal protection claims, these cases, on the allegations construed liberally
19 and in plaintiff’s favor, are distinguishable.
20

In Wolfe and Pierce, the courts emphasized that the VLS requires an

21 individualized inquiry which includes the following: (1) The underlying court must
22 make an individualized determination at a hearing that the plaintiff is a “vexatious
23 litigant” within the meaning of the VLS; (2) the underlying court must examine the
24 pro se litigant’s proposed filings and determine that there is not a reasonable
25 probability that the plaintiff will prevail in the litigation; and (3) the underlying court
26 must make an individualized determination of the appropriate amount of security.
27 Wolfe, 486 F.3d at 1127; Pierce, 628 F. App’x at 549. The Wolfe court relied upon
28 the existence of these requirements to conclude that the state court rationally
29

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1 distinguished litigants who “sue and lose often . . . from other litigants,” and to
2 conclude that the state’s interest was legitimate and that the VLS was rationally
3 related to that interest. 486 F.3d at 1126-27 (holding that the state had a rational basis
4 to distinguish between “vexatious” litigants and other litigants in part because the
5 statute required the individualized findings and because “[i]t cannot seriously be said
6 that a state makes such unreasonable use of its power as to violate the Constitution
7 when it provides liability and security for payment of reasonable expenses if a
8 litigation . . . is adjudged to be unsustainable” (citation and internal quotation marks
9 omitted, ) (emphasis in original)). Similarly, the Pierce court relied upon these
10 requirements to determine that the State’s interest was sufficiently important and that
11 the VLS was narrowly tailored to that interest. 648 F. App’x at 549 (holding that the
12 VLS was closely tailored to the state’s sufficiently important interest in ensuring
13 orderly resolution of disputes and protecting parents and courts from vexatious
14 litigants because the VLS does not create an insurmountable hurdle to the adjustment
15 of a fundamental human relationship and because the VLS “calls for an
16 individualized determination”). Moreover, there were no allegations in Wolfe or
17 Pierce suggesting that the defendants did not satisfy these individualized
18 requirements.
19

Here, in contrast, the 4thAC alleges that the state trial court failed to comply

20 with the individualized safeguards prescribed by the VLS. On the facts alleged,
21 plaintiff had no notice of the hearing in which he was found to be a vexatious litigant,
22 the underlying court did not make an individualized determination as to whether there
23 was a reasonable probability that plaintiff would not prevail in the litigation, and the
24 court did not make an individualized determination as to the appropriate amount of
25 security. The facts in Wolfe and Pierce, therefore, are distinguishable from the facts
26 alleged in the 4thAC.
27 / / /
28 / / /
30

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1

Plaintiff alleges that the trial judge, Counelis, entered a VLS order requiring

2 him to post a $25,000 bond prior to filing any pleadings in the underlying family
3 court litigation. (4thAC at 9.) In contravention of the VLS, Counelis, as alleged,
4 entered this order, sua sponte, without notice or hearing, despite the VLS provision
5 requiring both notice and a hearing, and despite the lack of statutory authorization for
6 a sua sponte order to post a bond.11 Cf. Cal. Civ. Proc. Code § 391.1. Counelis also
7 failed, in contravention of the VLS, to enter the order on a showing that there “[wa]s
8 not a reasonable probability that [plaintiff would] prevail in the litigation against the
9 moving defendant.”

Id.

Counelis further failed to make an individualized

10 determination of the amount of the security as required by the VLS. (4thAC at 4.)
11 Finally, when plaintiff failed to post the security, instead of dismissing the case as
12 required by the VLS, cf. id. § 391.4, the court continued to make decisions on the
13 merits in contravention of the VLS, cf. id. § 391.2. (Exh. 8 to TAC, attached to Smith
14 Decl. No. 2.)
15

With respect to plaintiff’s due process claim, in the absence of any

16 individualized inquiry, the State had no rational basis to require plaintiff to post a
17 $25,000 bond prior to filing further pleadings in the Superior Court. California’s
18 interest in enforcing the VLS is to “protect[] defendants from harassment by frivolous
19 litigation” and to prevent vexatious litigants from “t[ying] up a great deal of a court’s
20 time.” Wolfe, 486 F.3d at 1126; see also Pierce, 628 F. App’x at 549. With no
21 individualized determination that plaintiff was a vexatious litigant and no
22 determination that there was not a reasonable probability that plaintiff would prevail
23
24
25
26
27
28

11

The 4thAC does not allege whether Kate-Green moved to amend the
bond amount. The Court, however, consistent with its obligation to construe the
allegations liberally and in plaintiff’s favor, construes the 4thAC as alleging that
Counelis entered the order sua sponte in contravention of the VLS. Cf. Cal. Code
Civ. Proc. § 391.1 (providing that “a defendant may move the court, upon notice and
hearing, for an order requiring the plaintiff to furnish security” and making no
provision for a court to sua sponte require a bond).
31

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1 in the litigation, the $25,000 bond was not rationally related to the State’s interest in
2 protecting defendants from frivolous litigation and preventing vexatious litigants
3 from wasting judicial resources.
4

Moreover, absent an individualized inquiry into Kate-Green’s reasonable

5 expenses incurred in connection with a matter instituted by plaintiff,12 the $25,000
6 security was not rationally related to protecting Kate-Green from frivolous litigation.
7 Indeed, it is unclear how the State could have any rational basis for requiring plaintiff
8 to post a $25,000 bond when Counelis is alleged to have arbitrarily selected the bond
9 amount (4thAC at 4, 8), with no correlation to Kate-Green’s reasonable anticipated
10 expenses to defend against the action. Cf. Muller v. Tanner, 2 Cal. App. 3d 445, 465,
11 82 Cal. Rptr. 728 (1969) (holding that a judge cannot “look at a complaint and
12 determine, without further evidence, the time and labor which will be expended to
13 defeat the claim,” particularly where “[n]ot even the nature of the defendant’s defense
14 was disclosed”); Cal. Code Civ. Proc. §§ 391, 391.1 (defining “security” as an
15 “undertaking to assure payment . . . of the party’s reasonable expenses . . . incurred
16 in or in connection with a litigation instituted . . . by a vexatious litigant” and
17 providing that a defendant may move the court for an order requiring the plaintiff to
18 furnish security).
19

Furthermore, the State also lacked a rational basis for imposing the $25,000

20 security, because, instead of dismissing the action when plaintiff failed to post a bond
21 as required by the VLS, see Cal. Code Civ. Proc. § 391.4 (“When security that has
22 been ordered furnished is not furnished as ordered, the litigation shall be dismissed
23 as to the defendant for whose benefit it was ordered furnished.”), the Superior Court
24 continued to allow Kate-Green to litigate the claims. Minutes from the Superior
25 Court indicate that the court repeatedly rejected filings from the plaintiff; the minutes
26
27

12

As previously noted, it is not clear which party instituted the underlying
28 family court litigation. See supra at 29.
32

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1 also establish that, instead of dismissing the case as required, the court continued
2 proceedings and even granted Kate-Green’s motion to move the parties’ minor child
3 across the country. (4thAC at 10; Exh. 8 to TAC, attached to Smith Decl. No. 2.)
4 Allowing the litigation to continue after plaintiff failed to post the bond was not
5 rationally related to the State’s interests of protecting defendants and the courts from
6 frivolous litigation. Accordingly, defendants lacked a rational basis for imposing the
7 $25,000 security.
8

Similarly, regarding plaintiff’s equal protection claim, the State could not

9 rationally distinguish plaintiff as a “vexatious litigant” within the meaning of the
10 statute from other litigants. In the absence of any individualized findings that, for
11 example, plaintiff was a “vexatious litigant” as defined in the act and that there was
12 not a reasonable probability that plaintiff would prevail in the litigation, the State had
13 no rational basis for categorizing plaintiff as a vexatious litigant.
14

Accordingly, the Court concludes that plaintiff has stated a plausible claim for

15 relief premised upon the theory that the VLS, as applied, barred him from filing any
16 pleadings or documents with the Superior Court absent the posting of a $25,000 bond,
17 thereby violating his rights under the Due Process and Equal Protection Clauses of
18 the Fourteenth Amendment. Therefore, the Court recommends that the Motion be
19 denied as to these claims.
20
21 III.

The Remaining Claims Must be Dismissed.

22

A.

23

It is a basic principle of Due Process that an act is void for vagueness if its

The VLS is not unconstitutionally vague

24 prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108,
25 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). A statute may be void for vagueness if it
26 fails to give adequate notice to people of ordinary intelligence concerning the conduct
27 it proscribes. Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984).
28 / / /
33

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1

The Ninth Circuit in Wolfe held that the VLS is not unconstitutionally vague

2 “because it ‘gives fair notice to those who might violate the statute.’” 486 F.3d at
3 1125 (quoting United States v. Cassel, 408 F.2d 622, 635 (9th Cir. 2005)). Plaintiff’s
4 challenge to the VLS on the basis that it is unconstitutionally vague on its face and
5 as applied to family court litigants is the same type of claim that the Ninth Circuit in
6 Wolfe found to be meritless. Accordingly, plaintiff has failed to state a claim upon
7 which relief might be granted, and the Court therefore recommends that the Motion
8 be granted as to plaintiff’s void for vagueness claims pursuant to Rule 12(b)(6), and,
9 as the defects in these claims are incapable of being cured by amendment, it is further
10 recommended that the dismissal be with prejudice.
11
12

B.

The VLS is not an ex post facto law

13

The Constitution prohibits the states from passing any “Ex Post Facto Law.”

14 Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 131 L. Ed. 2d 588
15 (1995); U.S. Const. art. I, § 10. In Collins v. Youngblood, 497 U.S. 37, 41, 110 S.
16 Ct. 2715, 111 L. Ed. 2d 30 (1990), the Supreme Court reaffirmed that the Ex Post
17 Facto Clause incorporated “a term of art with an established meaning at the time of
18 the framing of the Constitution.” In accordance with this original understanding, the
19 Supreme Court has held that the Clause is aimed at laws that “retroactively alter the
20 definition of crimes or increase the punishment for criminal acts.” Id. at 43 (citations
21 omitted).
22

In Wolfe, the Ninth Circuit confirmed that the VLS does not violate the Ex Post

23 Facto Clause in Article I, Section 10 of the Constitution because the act does not
24 impose criminal penalties. Id. at 1127 (citing Hudson, 522 U.S. at 95-96). Plaintiff’s
25 claim that the VLS violates the Ex Post Facto Clause is the same claim that the Ninth
26 Circuit in Wolfe rejected. Accordingly, plaintiff has failed to state a claim upon
27 which relief might be granted, and the Court therefore recommends that the Motion
28 be granted as to plaintiff’s claim that the VLS functions as an improper Ex Post Facto
34

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1 Law, pursuant to Rule 12(b)(6). Moreover, since the Court has previously provided
2 plaintiff the opportunity to amend this claim, and this claim is incapable of being
3 cured by amendment, it is further recommended that such dismissal be with prejudice.
4
5

C.

The VLS is not a bill of attainder

6

The Constitution instructs Congress that “[n]o Bill of Attainder . . . shall be

7 passed.” U.S. Const. art. I, § 9, cl. 3. A bill of attainder is “a law that legislatively
8 determines guilt and inflicts punishment upon an identifiable individual without
9 provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433
10 U.S. 425, 468, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977). “Three key features brand
11 a statute a bill of attainder: that the statute (1) specifies the affected persons, and (2)
12 inflicts punishment (3) without a judicial trial.” Seariver Mar. Fin. Holdings, Inc. v.
13 Mineta, 309 F.3d 662, 668-69 (9th Cir. 2002) (citations omitted).
14

The Ninth Circuit in Wolfe held that the VLS is not an improper bill of

15 attainder for purposes of Article I, Section 9 of the Constitution because “it does not
16 single anyone out.” 486 F.3d at 1127 (citing Seariver Mar. Fin. Holdings, 309 F.3d
17 at 668). Plaintiff’s claim that the VLS is an improper bill of attainder is the same
18 claim that the Ninth Circuit rejected in Wolfe. Accordingly, plaintiff has failed to
19 state a claim upon which relief might be granted, and the Court therefore recommends
20 that the Motion be granted as to this claim pursuant to Rule 12(b)(6). Further, as the
21 Court has previously granted plaintiff the opportunity to amend his claim, and as this
22 claim is incapable of being cured by amendment, it is further recommended that the
23 dismissal be with prejudice.
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
35

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1
2

RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order:

3 (1) Approving and accepting this Report and Recommendation; (2) denying the
4 Motion to Dismiss Claims 1 and 2 to the extent they challenge the VLS as applied to
5 plaintiff; (3) granting the Motion to Dismiss the due process and equal protection
6 challenges in Claims 1 and 2 to the extent they challenge the VLS as applied to all
7 family court litigants, as well as Claims 3, 5, 6, 7, and 10, dismissing those claims
8 with prejudice; (4) dismissing all claims against the Council and Jahr without
9 prejudice; and (5) ordering defendants Cantil-Sakauye and Hoshino to file an Answer
10 to the 4thAC as to Claims 1 and 2.
11
12 DATED: September 7, 2016
13
14
15
16
17
18
19
20
21

___________________________________
THE HONORABLE DAVID T. BRISTOW
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but
may be subject to the right of any party to file Objections as provided in the Local
Rules and review by the District Judge whose initials appear in the docket number.
No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be
filed until entry of the Judgment of the District Court.

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36