United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTIONS TO DISMISS, DENYING
PLAINTIFF'S MOTIONS FOR SANCTIONS AND GRANTING IN PART
DEFENDANTS' MOTION FOR SANCTIONS RE: DKT. NOS. 33, 34,
H. KOH, UNITED STATES DISTRICT JUDGE.
Daniel Delacruz, Sr. brings suit against a number of
individuals and entities related to the denial of his license
to practice law. Before the Court are two motions to dismiss:
a motion to dismiss filed by Defendants City of Fresno, the
Fresno Police Department, Steven Card, Cathy Sherman, and the
law firm Ferguson, Praet, & Sherman APC (collectively,
the “Fresno Defendants”), ECF No. 33; and a
motion to dismiss filed by Defendants the State Bar of
California and Steven James Moawad (collectively, the
“State Bar Defendants”), ECF No. 34.
Additionally, both Delacruz and the State Bar Defendants have
moved for sanctions. ECF Nos. 35, 49. Having considered the
submissions of the parties, the relevant law, and the record
in this case, the Court GRANTS both motions to dismiss,
DENIES Delacruz's motion for sanctions, and GRANTS in
part the State Bar Defendants' motion for sanctions.
suit is the latest chapter in the protracted litigation
between Delacruz and the State Bar of California (the
“State Bar”). Because Delacruz's prior cases
provide important factual context for the instant case, the
Court considers them relevant background information and
describes them briefly below.
Cal. Case No. 14-CV-05336-EJD (“Delacruz
I”), Delacruz filed suit in this District, in
which he alleged nineteen causes of action against 54
defendants, including the State Bar, various officers of the
State Bar, and numerous other individuals and entities.
Delacruz I, ECF No. 1 at 1-2. Delacruz's
allegations begin in February 1997, when Officer Steven Card
arrested Delacruz for domestic violence on the basis of a
police report that Delacruz claimed was fabricated.
Id. at ¶¶ 32-39. Delacruz pled nolo
contendere to one count of domestic violence, which Delacruz
claims he did to avoid prison time and to deal with his
serious medical condition of Fabry's Disease.
Id. at ¶ 40. After receiving successful
treatment and mitigating symptoms of his condition, Delacruz
completed law school studies and took the California State
Bar exam in February 2011, which he passed. Id. at
¶¶ 41-48. However, in September 2011, the State Bar
denied Delacruz's bar license on the basis of his moral
character and upheld that determination following
Delacruz's administrative appeal. Id. at
¶¶ 48-51. Delacruz appealed this decision to both
the California Supreme Court and the United States Supreme
Court, both of which declined review. See Delacruz on
Admission, No. S213363, petition for review denied (Cal.
Oct. 20, 2013); Delacruz v. Comm. of Bar Examiners of the
State Bar of California, 572 U.S. 1089 (2014).
complaint in Delacruz I, which spans 105 pages,
details a multitude of grievances with the State Bar's
process and alleges a vast network of countless individuals
and entities that had conspired to “benefit Defendant
State Bar of California in denying Plaintiff a license to
practice law by engaging in tortious conduct at the expense
of Plaintiff's Civil Rights, inter alia.” See
Id. at ¶ 27. Delacruz brought numerous claims,
including claims for discrimination based on race and
disability, fraud, extortion, and breach of contract.
Id. at 1-2. Ultimately, in Delacruz I,
United States District Judge Edward Davila dismissed all of
Plaintiff's claims without leave to amend and entered
judgment in favor of the defendants. Delacruz I, ECF
No. 332. The Ninth Circuit affirmed in an unpublished
memorandum disposition and later denied Delacruz's
petition for rehearing en banc. Ninth Circuit Case No.
17-17340, ECF Nos. 66, 68. The United States Supreme Court
denied Delacruz's petition for writ of certiorari.
Delacruz I, ECF No. 354.
Cal. Case No. 16-06858-BLF (“Delacruz
II”), Delacruz again sued the State Bar and
various officials associated with the State Bar, as well as
unnamed Does 1 through 64. Delacruz II, ECF No. 1 at
1. After United States District Judge Beth Labson Freeman
dismissed with leave to amend the Complaint in part, Delacruz
filed a First Amended Complaint, which added a law firm and
its employee as defendants. Delacruz II, ECF No. 52
(“FAC”) at 1. In the FAC, Delacruz alleged that,
after he was denied admission to the State Bar the first
time, in September 2013, he applied a second time for a law
license. Id. ¶ 16. As part of this process, he
created a survey and published it on his website
“seeking the public's opinion about the moral
character of several individuals” who Delacruz alleged
had “unjustly denied [his] first law license
application. Id. ¶ 17. Officials at the State
Bar attempted to investigate Delacruz's website. However,
Delacruz had imposed various disclaimers as terms and
conditions to access Delacruz's website, such as
requiring waiver of immunities including “Eleventh
Amendment Immunity, absolute litigation privilege, Judicial
Immunity, Anti-SLAPP statute,
Rooker-Feldman doctrine, and
Noerr-Pennington doctrine.” Id.
¶¶ 24-26. Delacruz alleged that, in March 2015, he
again received correspondence indicating that he “lacks
the good moral character to become an attorney in the State
of California at this time.” Id. ¶ 37.
on those allegations, Delacruz brought claims of conspiracy
to commit computer fraud, conspiracy to violate equal
protection and race and disability discrimination laws, and
violation of the California Public Records Act. Id.
Judge Freeman dismissed the claims without leave to amend and
entered judgment in favor of the defendants. Delacruz
II, ECF Nos. 97, 98. The Ninth Circuit again affirmed in
an unpublished memorandum disposition and again denied
Delacruz's petition for rehearing en banc. Ninth Circuit
Case No. 18-16956, ECF Nos. 42, 46.
instant suit, N.D. Cal. Case No. 19-CV-03241-LHK
(“Delacruz III”), Delacruz filed his
Complaint on June 10, 2019. ECF No. 1
(“Complaint”), in which he alleges RICO
violations against the State Bar and Steven James Moawad, who
serves as the Chief Trial Counsel for the State Bar
(collectively, the “State Bar Defendants”), as
well as against the City of Fresno, the Fresno Police
Department, Officer Steve Card, Cathy Sherman, and the law
firm of Ferguson, Praet, & Sherman APC (collectively, the
“Fresno Defendants”). Specifically, in Claim One,
Delacruz alleges against all defendants:
The defendants are colluding with the State Bar to use the
U.S. postal service, telephone and internet in violation of
18 U.S.C. § 1341 (mail fraud) and § 1343 (wire
fraud) spanning several years to conduct their pattern of
multiple false and fraudulent misrepresentations to Delacruz
in violation of 18 U.S.C. § 1962 a.k.a. RICO that his
aforementioned federal and constitutional rights would be
recognized pursuant to Business & Professions Code
§6085 of the State Bar Act.
Id. at 6. In Claim Two, Delacruz alleges against
Ferguson, Praet, & Sherman:
The law firm of Ferguson, Praet & Sherman representing
the City of Fresno, the Fresno Police Department and police
officer Steve Card violated RICO because they violated
Delacruz' constitutional rights to privacy when they
disseminated a police report around June 11, 2015 - that was
falsified by police officer Steve Card containing
Delacruz' social security number - via email to . . .
twenty four email addresses.
Id. Although the Complaint provides scant detail
about the facts underlying the alleged RICO violations,
Delacruz contends that he “is preparing to submit his
third law license application.” Id. at 2-3. As
a result, Delacruz's Complaint seeks, inter
alia, over $2, 100, 000 in damages from “lost
income as an attorney, ” an injunction against all of
the defendants to stop conspiring in violation of RICO, and
an injunction requiring all of the defendants to
“destroy all physical and digital copies” of
Officer Card's police report. Id. at 7. The
Complaint also includes a request for a preliminary
injunction. Id. at 6-7.
September 12, 2019, the Fresno Defendants filed a motion to
dismiss for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6). ECF No. 33 (“Fresno
MTD”). On September 24, 2019, Delacruz filed an
opposition, ECF No. 38 (“Opp'n to Fresno
MTD”), and, on October 3, 2019, the Fresno Defendants
filed a reply, ECF No. 43 (“Reply to Fresno
on September 18, 2019, the State Bar Defendants filed a
separate motion to dismiss for lack of subject matter
jurisdiction, pursuant to Rule 12(b)(1) and for failure to
state a claim pursuant to Rule 12(b)(6). ECF No. 34
(“State Bar MTD”). On October 1, 2019, Delacruz
filed an opposition. ECF No. 41 (“Opp'n to State
Bar MTD”). On October 9, 2019, the State Bar Defendants
filed a reply. ECF No. 45 (“Reply to State Bar
same day that the State Bar Defendants filed their motion to
dismiss, the State Bar Defendants also filed a motion for
Rule 11 Sanctions. ECF No. 35 (“Defs.' Mot. for
Sanctions”). On October 1, 2019, Delacruz filed an
opposition to the motion for sanctions. ECF No. 42
(“Opp'n to Defs.' Mot. for Sanctions”).
On October 9, 2019, the State Bar Defendants filed a reply.
ECF No. 46 (“Reply to Defs.' Mot. for
October 15, 2019, Delacruz filed his own motion for sanctions
pursuant to Rule 11 and 28 U.S.C. § 1927. ECF No. 49
(“Pl.'s Mot.”). The Fresno Defendants filed
an opposition on October 28, 2019, ECF No. 50 (“Fresno
Opp'n to Pl.'s Mot.”), and the State Bar
Defendants filed a separate opposition on October 29, 2019,
ECF No. 51 (“State Bar Opp'n to Pl.'s
Mot.”). Delacruz filed a reply on November 4, 2019. ECF
No. 52 (“Reply to Pl.'s Mot.”).
in support of their motions, the parties filed a number of
requests and motions for judicial notice. Specifically, in
support of their motion to dismiss, the Fresno Defendants
requested that the Court judicially notice filings in
Delacruz I, ECF No. 33-2, which Delacruz opposed,
ECF No. 39. A court “may take notice of proceedings in
other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to
matters at issue.” United States ex rel. Robinson
Rancheria Citizens Council v. Borneo, Inc., 971 F.2d
244, 248 (9th Cir. 1992). Because the proceedings in
Delacruz I are clearly relevant to the case at hand,
and because the Court determines that Delacruz's
objections are without merit, the Court GRANTS
Defendants' request for judicial notice.
also requested that the Court judicially notice a number of
filings in various other court proceedings, ECF No. 40, which
the Fresno Defendants opposed, ECF No. 44. In his reply
Delacruz moved the Court to judicially notice additional
documents that he argues are relevant to the motion for
sanctions, ECF No. 48, such as an order from Delacruz's
criminal proceedings in California state court. Because
judicially noticing these documents does not impact the
Court's decision below, the Court GRANTS Delacruz's
motions for judicial notice. However, while a court may take
judicial notice of the existence of matters of public record,
the Court may not accept the truth of the disputed facts
cited therein. Lee v. City of Los Angeles, 250 F.3d
668, 689- 90 (9th Cir. 2001).
Dismissal Pursuant to Federal Rule of Civil Procedure
defendant may move to dismiss an action for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). A jurisdictional challenge may be facial
or factual. See Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial,
the court determines whether the complaint's allegations
are sufficient on their face to invoke federal jurisdiction
and accepts all material allegations as true and construes
them in favor of the party asserting jurisdiction. See
Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the
attack is factual, “the court need not presume the
truthfulness of the plaintiff's allegations.”
Safe Air, 373 F.3d at 1039. In resolving a factual
dispute regarding subject matter jurisdiction, a court may
review extrinsic evidence beyond the complaint without
converting a motion to dismiss into one for summary judgment.
See id.; McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988) (holding that a court
“may review any evidence, such as affidavits and
testimony, to resolve factual disputes concerning the
existence of jurisdiction”). Once a party has moved to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the opposing party bears the burden of establishing
the Court's jurisdiction. See Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d
1115, 1122 (9th Cir. 2010).
sovereign immunity is only quasi-jurisdictional in nature,
Rule 12(b)(1) is still a proper vehicle for invoking
sovereign immunity from suit.” Pistor v.
Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015). Thus, once
a defendant has asserted sovereign immunity pursuant to Rule
12(b)(1), “‘the party asserting subject matter
jurisdiction has the burden of proving its existence,'
i.e. that immunity does not bar the suit.” Id.
(quoting Miller v. Wright, 705 F.3d 919, 923 (9th
Dismissal Pursuant to Federal Rule of Civil Procedure
8(a) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). Rule 8(a) requires a plaintiff to plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
(internal quotation marks omitted). For purposes of ruling on
a Rule 12(b)(6) motion, the Court “accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into a motion for summary judgment, Shaw
v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor
must the Court “assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (quoting W. Mining
Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).
Mere “conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
Leave to Amend
Court determines that a complaint should be dismissed, it
must then decide whether to grant leave to amend. Under Rule
15(a) of the Federal Rules of Civil Procedure, leave to amend
“shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 to facilitate decisions on the merits, rather than on the
pleadings or technicalities.” Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations
and internal quotation marks omitted). When dismissing a
complaint for failure to state a claim, “a district
court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Id. at 1130 (internal quotation marks
omitted). Accordingly, leave to amend generally shall be
denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the
moving party has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
Defendants' Motion to Dismiss
initial matter, Delacruz repeatedly argues that
Defendants' filings, including both motions to dismiss,
should be denied because they are “defective” for
failing to include an affidavit or declaration. See,
e.g., Opp'n to Fresno MTD at 1 (citing 7-5). Civil
L.R. 7-5 provides that “Factual contentions made in
support of or in opposition to any motion must be supported
by an affidavit or declaration and by appropriate references
to the record.” However, as the State Bar Defendants
correctly note, on a motion to dismiss, the Court accepts
factual allegations in the Complaint as true and merely
construes the allegations in the plaintiff's complaint in
the light most favorable to the nonmoving party. See
Reply to State Bar MTD at 1; Manzarek, 519 F.3d at
1031 (explaining that, on a motion to dismiss, a court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.”). Accordingly, Defendants'
motions are not defective and the Court proceeds to address
Defendants' arguments on the merits.
State Bar Defendants move to dismiss pursuant to Rule
12(b)(1) on the ground that the State Bar Defendants are
entitled to sovereign immunity. Additionally, both the State
Bar Defendants and the Fresno Defendants move for dismissal
pursuant to Rule 12(b)(6). State Bar MTD at 4-13; Fresno MTD
at 3-14. The Court first considers the State Bar
Defendants' argument for dismissal under Rule 12(b)(1),
and then turns to the Defendants' arguments for dismissal
pursuant to Rule 12(b)(6).
Dismissal Pursuant to Federal Rule of Civil Procedure
State Bar Defendants argue that the Court lacks subject
matter jurisdiction over Delacruz's claims against the
State Bar Defendants because the Eleventh Amendment bars
Delacruz from raising his claims against the State Bar and
against Moawad. State Bar MTD at 4- 8. The Court agrees that
the Eleventh Amendment bars Delacruz's claims against the
State Bar, but disagrees that Moawad is also entitled to
Eleventh Amendment immunity for all of Delacruz's claims.
Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
Const. amend. XI. As such, “the Eleventh Amendment bars
suits which seek either damages or injunctive relief against
a state, an ‘arm of the state,' its
instrumentalities, or its agencies.” Franceschi v.
Schwartz, 57 F.3d 828, 831 (9th Cir. 1995).
Ninth Circuit has explicitly held that the “Eleventh
Amendment's grant of sovereign immunity bars monetary
relief from state agencies such as California's Bar
Association.” Hirsch v. Justices of Supreme Court
of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995).
Thus, the Court lacks subject matter jurisdiction to
adjudicate claims brought against the State Bar unless an
exception applies. Specifically, the Court may retain subject
matter jurisdiction where: (1) Congress has abrogated that
immunity pursuant to its lawmaking powers conferred by the
United States Constitution, Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 80 (2000); (2) a state has waived
its Eleventh Amendment immunity by consenting to suit,
College Sav. Bank Florida v. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999); or (3) the
plaintiff sues a state official in his or her official
capacity for prospective injunctive relief under the Ex
parte Young doctrine, Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 73 (1996). Here, Delacruz argues
that the following two exceptions apply: that ...