United States District Court, C.D. California
MARILYN S. SCHEER, Plaintiff,
DAVID J. PASTERNAK et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S.
L. REAL U.S. DISTRICT L JUDGE.
Court has reviewed de novo the Complaint, the pleadings and
records on file, and the Report and Recommendation of U.S.
Magistrate Judge, which recommends that Defendants'
motions to dismiss the Complaint be granted and the action be
dismissed with prejudice. See 28 U.S.C. § 636.
On January 25, 2017, Plaintiff filed objections to the R.
first contends that the R. & R. is based on grounds not
raised by Defendants in their motions to dismiss. (Objs. at
5.) Specifically, she argues that Defendants did not make res
judicata or collateral estoppel arguments based on Scheer
v. Kelly, 817 F.3d 1183 (9th Cir.) (“Scheer
I”), cert. denied, 137 S.Ct. 240 (2016).
(Objs. at 5.) The R. & R. does not treat Scheer
I as having preclusive effect; it treats it as binding
precedent. (See R. & R. at 16-17, 23-27 &
n.5.) The Court also rejects Plaintiff's contention that
the Magistrate Judge showed favoritism toward Defendants in
her rulings on procedural matters relating to the motions to
dismiss. (Objs. at 5-6 & n.3.) Contrary to
Plaintiff's contention (see id.), she never
objected to the font size used by Defendants in their
pleadings but only to their alleged lack of double spacing
(see generally Pl.'s Req. to Strike); the
Magistrate Judge properly denied that objection.
next contends that the R. & R. erroneously found that
claims one through three were barred by
Rooker-Feldman and preclusion doctrines. (Objs. at
10.) She argues that this finding rests on a misunderstanding
of her Complaint because she challenges the constitutionality
of Rule 9.16 of the California Rules of Court only on its
face, not as applied to her. (Id. at 6, 10-12.)
Because the Complaint is ambiguous on this point, the
Magistrate Judge properly analyzed it as asserting both a
facial and an as-applied challenge to Rule 9.16. The
Magistrate Judge concluded that Plaintiff's as-applied
claims were barred by the Rooker-Feldman doctrine
but that her facial claims (which Plaintiff now contends are
her only claims) were not barred by either
Rooker-Feldman or claim or issue preclusion. (R.
& R. at 17-20, 27.) Rather, the Magistrate Judge found
that those claims failed on the merits. (Id. at
23-27.) Thus, Plaintiff's objections are not well taken.
objects to the R. & R.'s reliance on Scheer I. (Objs.
at 7.) She argues that it does not govern here because it was
not a disciplinary case but arose from an administrative
suspension of her law license after she failed to pay an
arbitration award to a former client. (Id.)
Plaintiff refers the Court to her companion bankruptcy case,
In re Scheer, 819 F.3d 1206 (9th Cir. 2016), but
that case's analysis of whether the arbitration award was
dischargeable in bankruptcy has no bearing on the
precedential effect of Scheer I in this action. In
Scheer I, Plaintiff challenged California's
attorney-discipline system on essentially the same grounds as
in this action. 817 F.3d at 1189. Under settled principles of
law, Scheer I is binding Ninth Circuit authority.
See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir.
renews her argument that Scheer I is not on point
because the Ninth Circuit did not expressly mention the First
Amendment's Petition Clause in its analysis. (Objs. at
12-16.) As discussed in the R. & R. (R. & R. at 25),
the Ninth Circuit necessarily considered the Petition Clause
when it addressed Plaintiff's access-to-courts claim
because the right of access to courts is an aspect of the
right to petition protected by the First Amendment. See
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508, 510 (1972); L.A. Cnty. Bar Ass'n v. Eu, 979
F.2d 697, 706 (9th Cir. 1992).
next contends that the Magistrate Judge erroneously applied a
rational-basis standard to her due process and
equal-protection claims. (Objs. at 9, 16-17.) She argues that
strict scrutiny is required because her claims involve a
fundamental right under the Petition Clause. (Id.)
Scheer I applied a rational-basis standard to the
same claims because it rejected the related access-to-courts
claim and, therefore, no fundamental right was involved. 817
F.3d at 1189. The same is true here. See also Eu,
979 F.2d at 707 (applying rational-basis test to
equal-protection claim challenging judge shortage causing
delays in adjudication).
contends that the R. & R. erroneously found that her
constitutional challenge to California Civil Code section
2944.7 was barred by claim and issue preclusion. (Objs. at
9-10, 22-23.) She argues that the State Bar Court's
decision is ultra vires because administrative agencies have
no power to make constitutional determinations and,
therefore, the decision is not entitled to preclusive effect.
(Id.) But the R. & R. found that the California
Supreme Court's decision, not the State Bar Court's
decision, was entitled to preclusive effect. (R. & R. at
20-22.) The California Supreme Court did not
“abdicat[e] its exclusive judicial function, ” as
Plaintiff claims, merely because it did not explain its
reasons for denying review. (See Objs. at 22-23.) It
has expressly held that its summary denial of review of a
State Bar Court disciplinary decision is a final
“judicial” determination for purposes of res
judicata. In re Rose, 22 Cal.4th 430, 448 (2000).
Plaintiff may not agree with Rose, as witnessed by
her repeated citations to the dissents in that case (see,
e.g., Objs. at 3-4, 18), but that does not mean it is
not the law.
reviewed de novo those portions of the R. & R. to which
Plaintiff objected, the Court accepts the findings and
recommendations of the Magistrate Judge.
THEREFORE IS ORDERED that the Complaint is dismissed without
leave to amend and Judgment be entered dismissing this action
See Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman,