Delacruz v. The State Bar of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 DANIEL DELACRUZ, Case No. 19-CV-03241-LHK 13 Plaintiff, ORDER GRANTING MOTIONS TO DISMISS, DENYING PLAINTIFF’S 14 v. MOTIONS FOR SANCTIONS AND GRANTING IN PART DEFENDANTS’ 15 THE STATE BAR OF CALIFORNIA, et MOTION FOR SANCTIONS al., 16 Re: Dkt. Nos. 33, 34, 35, 49 Defendants. 17 18 Plaintiff Daniel Delacruz, Sr. brings suit against a number of individuals and entities 19 related to the denial of his license to practice law. Before the Court are two motions to dismiss: a 20 motion to dismiss filed by Defendants City of Fresno, the Fresno Police Department, Steven Card, 21 Cathy Sherman, and the law firm Ferguson, Praet, & Sherman APC (collectively, the “Fresno 22 Defendants”), ECF No. 33; and a motion to dismiss filed by Defendants the State Bar of 23 California and Steven James Moawad (collectively, the “State Bar Defendants”), ECF No. 34. 24 Additionally, both Delacruz and the State Bar Defendants have moved for sanctions. ECF Nos. 25 35, 49. Having considered the submissions of the parties, the relevant law, and the record in this 26 case, the Court GRANTS both motions to dismiss, DENIES Delacruz’s motion for sanctions, and 27 1 1 GRANTS in part the State Bar Defendants’ motion for sanctions. 2 I. BACKGROUND 3 This suit is the latest chapter in the protracted litigation between Delacruz and the State 4 Bar of California (the “State Bar”). Because Delacruz’s prior cases provide important factual 5 context for the instant case, the Court considers them relevant background information and 6 describes them briefly below. 7 A. Delacruz I 8 In N.D. Cal. Case No. 14-CV-05336-EJD (“Delacruz I”), Delacruz filed suit in this 9 District, in which he alleged nineteen causes of action against 54 defendants, including the State 10 Bar, various officers of the State Bar, and numerous other individuals and entities. Delacruz I, 11 ECF No. 1 at 1–2. Delacruz’s allegations begin in February 1997, when Officer Steven Card 12 arrested Delacruz for domestic violence on the basis of a police report that Delacruz claimed was 13 fabricated. Id. at ¶¶ 32–39. Delacruz pled nolo contendere to one count of domestic violence, 14 which Delacruz claims he did to avoid prison time and to deal with his serious medical condition 15 of Fabry’s Disease. Id. at ¶ 40. After receiving successful treatment and mitigating symptoms of 16 his condition, Delacruz completed law school studies and took the California State Bar exam in 17 February 2011, which he passed. Id. at ¶¶ 41–48. However, in September 2011, the State Bar 18 denied Delacruz’s bar license on the basis of his moral character and upheld that determination 19 following Delacruz’s administrative appeal. Id. at ¶¶ 48–51. Delacruz appealed this decision to 20 both the California Supreme Court and the United States Supreme Court, both of which declined 21 review. See Delacruz on Admission, No. S213363, petition for review denied (Cal. Oct. 20, 22 2013); Delacruz v. Comm. of Bar Examiners of the State Bar of California, 572 U.S. 1089 (2014). 23 Delacruz’s complaint in Delacruz I, which spans 105 pages, details a multitude of 24 grievances with the State Bar’s process and alleges a vast network of countless individuals and 25 entities that had conspired to “benefit Defendant State Bar of California in denying Plaintiff a 26 license to practice law by engaging in tortious conduct at the expense of Plaintiff’s Civil Rights, 27 2 1 inter alia.” See id. at ¶ 27. Delacruz brought numerous claims, including claims for 2 discrimination based on race and disability, fraud, extortion, and breach of contract. Id. at 1–2. 3 Ultimately, in Delacruz I, United States District Judge Edward Davila dismissed all of Plaintiff’s 4 claims without leave to amend and entered judgment in favor of the defendants. Delacruz I, ECF 5 No. 332. The Ninth Circuit affirmed in an unpublished memorandum disposition and later denied 6 Delacruz’s petition for rehearing en banc. Ninth Circuit Case No. 17-17340, ECF Nos. 66, 68. 7 The United States Supreme Court denied Delacruz’s petition for writ of certiorari. Delacruz I, 8 ECF No. 354. 9 B. Delacruz II 10 In N.D. Cal. Case No. 16-06858-BLF (“Delacruz II”), Delacruz again sued the State Bar 11 and various officials associated with the State Bar, as well as unnamed Does 1 through 64. 12 Delacruz II, ECF No. 1 at 1. After United States District Judge Beth Labson Freeman dismissed 13 with leave to amend the Complaint in part, Delacruz filed a First Amended Complaint, which 14 added a law firm and its employee as defendants. Delacruz II, ECF No. 52 (“FAC”) at 1. In the 15 FAC, Delacruz alleged that, after he was denied admission to the State Bar the first time, in 16 September 2013, he applied a second time for a law license. Id. ¶ 16. As part of this process, he 17 created a survey and published it on his website “seeking the public’s opinion about the moral 18 character of several individuals” who Delacruz alleged had “unjustly denied [his] first law license 19 application. Id. ¶ 17. Officials at the State Bar attempted to investigate Delacruz’s website. 20 However, Delacruz had imposed various disclaimers as terms and conditions to access Delacruz’s 21 website, such as requiring waiver of immunities including “Eleventh Amendment Immunity, 22 absolute litigation privilege, Judicial Immunity, Anti-SLAPP statute, Rooker-Feldman doctrine, 23 and Noerr-Pennington doctrine.” Id. ¶¶ 24–26. Delacruz alleged that, in March 2015, he again 24 received correspondence indicating that he “lacks the good moral character to become an attorney 25 in the State of California at this time.” Id. ¶ 37. 26 Based on those allegations, Delacruz brought claims of conspiracy to commit computer 27 3 1 fraud, conspiracy to violate equal protection and race and disability discrimination laws, and 2 violation of the California Public Records Act. Id. Judge Freeman dismissed the claims without 3 leave to amend and entered judgment in favor of the defendants. Delacruz II, ECF Nos. 97, 98. 4 The Ninth Circuit again affirmed in an unpublished memorandum disposition and again denied 5 Delacruz’s petition for rehearing en banc. Ninth Circuit Case No. 18-16956, ECF Nos. 42, 46. 6 C. Delacruz III 7 In the instant suit, N.D. Cal. Case No. 19-CV-03241-LHK (“Delacruz III”), Delacruz filed 8 his Complaint on June 10, 2019. ECF No. 1 (“Complaint”), in which he alleges RICO violations 9 against the State Bar and Steven James Moawad, who serves as the Chief Trial Counsel for the 10 State Bar (collectively, the “State Bar Defendants”), as well as against the City of Fresno, the 11 Fresno Police Department, Officer Steve Card, Cathy Sherman, and the law firm of Ferguson, 12 Praet, & Sherman APC (collectively, the “Fresno Defendants”). Specifically, in Claim One, 13 Delacruz alleges against all defendants: 14 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 15 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 16 aforementioned federal and constitutional rights would be recognized pursuant to Business & Professions Code §6085 of the State Bar Act. 17 Id. at 6. In Claim Two, Delacruz alleges against Ferguson, Praet, & Sherman1: 18 The law firm of Ferguson, Praet & Sherman representing the City of Fresno, the 19 Fresno Police Department and police officer Steve Card violated RICO because they violated Delacruz’ constitutional rights to privacy when they disseminated a police 20 report around June 11, 2015 - that was falsified by police officer Steve Card containing Delacruz' social security number - via email to . . . twenty four email 21 addresses. 22 Id. Although the Complaint provides scant detail about the facts underlying the alleged RICO 23 violations, Delacruz contends that he “is preparing to submit his third law license application.” Id. 24 25 1 Although the Complaint is unclear whether Delacruz alleges this claim against only the law firm, 26 see Compl. at 6, construing the Complaint liberally, the Court concludes that Delacruz likely meant to allege this claim against Sherman too as it appears to be Sherman’s only involvement in 27 the alleged conduct. 4 1 at 2–3. As a result, Delacruz’s Complaint seeks, inter alia, over $2,100,000 in damages from “lost 2 income as an attorney,” an injunction against all of the defendants to stop conspiring in violation 3 of RICO, and an injunction requiring all of the defendants to “destroy all physical and digital 4 copies” of Officer Card’s police report. Id. at 7. The Complaint also includes a request for a 5 preliminary injunction. Id. at 6–7. 6 On September 12, 2019, the Fresno Defendants filed a motion to dismiss for failure to state 7 a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 33 (“Fresno MTD”). On 8 September 24, 2019, Delacruz filed an opposition, ECF No. 38 (“Opp’n to Fresno MTD”), and, on 9 October 3, 2019, the Fresno Defendants filed a reply, ECF No. 43 (“Reply to Fresno MTD”). 10 Separately, on September 18, 2019, the State Bar Defendants filed a separate motion to 11 dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) and for failure to state a 12 claim pursuant to Rule 12(b)(6). ECF No. 34 (“State Bar MTD”). On October 1, 2019, Delacruz 13 filed an opposition. ECF No. 41 (“Opp’n to State Bar MTD”). On October 9, 2019, the State Bar 14 Defendants filed a reply. ECF No. 45 (“Reply to State Bar MTD”). 15 On the same day that the State Bar Defendants filed their motion to dismiss, the State Bar 16 Defendants also filed a motion for Rule 11 Sanctions. ECF No. 35 (“Defs.’ Mot. for Sanctions”). 17 On October 1, 2019, Delacruz filed an opposition to the motion for sanctions. ECF No. 42 18 (“Opp’n to Defs.’ Mot. for Sanctions”). On October 9, 2019, the State Bar Defendants filed a 19 reply. ECF No. 46 (“Reply to Defs.’ Mot. for Sanctions”). 20 On October 15, 2019, Delacruz filed his own motion for sanctions pursuant to Rule 11 and 21 28 U.S.C. § 1927. ECF No. 49 (“Pl.’s Mot.”). The Fresno Defendants filed an opposition on 22 October 28, 2019, ECF No. 50 (“Fresno Opp’n to Pl.’s Mot.”), and the State Bar Defendants filed 23 a separate opposition on October 29, 2019, ECF No. 51 (“State Bar Opp’n to Pl.’s Mot.”). 24 Delacruz filed a reply on November 4, 2019. ECF No. 52 (“Reply to Pl.’s Mot.”). 25 Finally, in support of their motions, the parties filed a number of requests and motions for 26 judicial notice. Specifically, in support of their motion to dismiss, the Fresno Defendants 27 5 1 requested that the Court judicially notice filings in Delacruz I, ECF No. 33-2, which Delacruz 2 opposed, ECF No. 39. A court “may take notice of proceedings in other courts, both within and 3 without the federal judicial system, if those proceedings have a direct relation to matters at issue.” 4 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th 5 Cir. 1992). Because the proceedings in Delacruz I are clearly relevant to the case at hand, and 6 because the Court determines that Delacruz’s objections are without merit, the Court GRANTS 7 Defendants’ request for judicial notice. 8 Delacruz also requested that the Court judicially notice a number of filings in various other 9 court proceedings, ECF No. 40, which the Fresno Defendants opposed, ECF No. 44. In his reply 10 Delacruz moved the Court to judicially notice additional documents that he argues are relevant to 11 the motion for sanctions, ECF No. 48, such as an order from Delacruz’s criminal proceedings in 12 California state court. Because judicially noticing these documents does not impact the Court’s 13 decision below, the Court GRANTS Delacruz’s motions for judicial notice. However, while a 14 court may take judicial notice of the existence of matters of public record, the Court may not 15 accept the truth of the disputed facts cited therein. Lee v. City of Los Angeles, 250 F.3d 668, 689– 16 90 (9th Cir. 2001). 17 II. LEGAL STANDARD 18 A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1) 19 A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant 20 to Federal Rule of Civil Procedure 12(b)(1). A jurisdictional challenge may be facial or factual. 21 See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is 22 facial, the court determines whether the complaint's allegations are sufficient on their face to 23 invoke federal jurisdiction and accepts all material allegations as true and construes them in favor 24 of the party asserting jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the 25 attack is factual, “the court need not presume the truthfulness of the plaintiff's allegations.” Safe 26 Air, 373 F.3d at 1039. In resolving a factual dispute regarding subject matter jurisdiction, a court 27 6 1 may review extrinsic evidence beyond the complaint without converting a motion to dismiss into 2 one for summary judgment. See id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) 3 (holding that a court “may review any evidence, such as affidavits and testimony, to resolve 4 factual disputes concerning the existence of jurisdiction”). Once a party has moved to dismiss for 5 lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of 6 establishing the Court's jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 7 375, 377 (1994); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 8 “[A]lthough sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is still 9 a proper vehicle for invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 10 1111 (9th Cir. 2015). Thus, once a defendant has asserted sovereign immunity pursuant to Rule 11 12(b)(1), “‘the party asserting subject matter jurisdiction has the burden of proving its existence,’ 12 i.e. that immunity does not bar the suit.” Id. (quoting Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 13 2013)). 14 B. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 15 Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short 16 and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that 17 fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). 18 Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its 19 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 20 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that 21 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 22 “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 23 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). For 24 purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the 25 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 26 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 27 7 1 The Court, however, need not accept as true allegations contradicted by judicially 2 noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look 3 beyond the plaintiff's complaint to matters of public record” without converting the Rule 12(b)(6) 4 motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 5 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in 6 the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per 7 curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere 8 “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 9 dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 10 C. Leave to Amend 11 If the Court determines that a complaint should be dismissed, it must then decide whether 12 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to 13 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 14 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 15 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 16 marks omitted). When dismissing a complaint for failure to state a claim, “a district court should 17 grant leave to amend even if no request to amend the pleading was made, unless it determines that 18 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 19 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 20 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 21 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 22 (9th Cir. 2008). 23 III. DISCUSSION 24 A. Defendants’ Motion to Dismiss 25 As an initial matter, Delacruz repeatedly argues that Defendants’ filings, including both 26 motions to dismiss, should be denied because they are “defective” for failing to include an 27 8 1 affidavit or declaration. See, e.g., Opp’n to Fresno MTD at 1 (citing 7-5). Civil L.R. 7-5 provides 2 that “Factual contentions made in support of or in opposition to any motion must be supported by 3 an affidavit or declaration and by appropriate references to the record.” However, as the State Bar 4 Defendants correctly note, on a motion to dismiss, the Court accepts factual allegations in the 5 Complaint as true and merely construes the allegations in the plaintiff’s complaint in the light 6 most favorable to the nonmoving party. See Reply to State Bar MTD at 1; Manzarek, 519 F.3d at 7 1031 (explaining that, on a motion to dismiss, a court “accept[s] factual allegations in the 8 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 9 party.”). Accordingly, Defendants’ motions are not defective and the Court proceeds to address 10 Defendants’ arguments on the merits. 11 The State Bar Defendants move to dismiss pursuant to Rule 12(b)(1) on the ground that the 12 State Bar Defendants are entitled to sovereign immunity. Additionally, both the State Bar 13 Defendants and the Fresno Defendants move for dismissal pursuant to Rule 12(b)(6). State Bar 14 MTD at 4–13; Fresno MTD at 3–14. The Court first considers the State Bar Defendants’ 15 argument for dismissal under Rule 12(b)(1), and then turns to the Defendants’ arguments for 16 dismissal pursuant to Rule 12(b)(6). 17 1. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1) 18 The State Bar Defendants argue that the Court lacks subject matter jurisdiction over 19 Delacruz’s claims against the State Bar Defendants because the Eleventh Amendment bars 20 Delacruz from raising his claims against the State Bar and against Moawad. State Bar MTD at 4– 21 8. The Court agrees that the Eleventh Amendment bars Delacruz’s claims against the State Bar, 22 but disagrees that Moawad is also entitled to Eleventh Amendment immunity for all of Delacruz’s 23 claims. 24 The Eleventh Amendment provides: 25 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 26 Citizens of another State, or by Citizens or Subjects of any Foreign State. 27 9 1 U.S. Const. amend. XI. As such, “the Eleventh Amendment bars suits which seek either damages 2 or injunctive relief against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.” 3 Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995). 4 The Ninth Circuit has explicitly held that the “Eleventh Amendment’s grant of sovereign 5 immunity bars monetary relief from state agencies such as California’s Bar Association.” Hirsch 6 v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995). Thus, the Court 7 lacks subject matter jurisdiction to adjudicate claims brought against the State Bar unless an 8 exception applies. Specifically, the Court may retain subject matter jurisdiction where: (1) 9 Congress has abrogated that immunity pursuant to its lawmaking powers conferred by the United 10 States Constitution, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000); (2) a state has waived its 11 Eleventh Amendment immunity by consenting to suit, College Sav. Bank Florida v. Prepaid 12 Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); or (3) the plaintiff sues a state 13 official in his or her official capacity for prospective injunctive relief under the Ex parte Young 14 doctrine, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996). Here, Delacruz argues that 15 the following two exceptions apply: that Congress has abrogated the State Bar Defendants’ 16 sovereign immunity, Opp’n to State Bar MTD at 3–5, and that the Ex parte Young doctrine allows 17 him to raise his claims for prospective injunctive relief, Opp’n to State Bar MTD at 1–2. The 18 Court addresses each argument in turn. 19 First, Delacruz’s argument that Congress has abrogated the State Bar Defendants’ 20 immunity in this case is without merit. Specifically, Delacruz argues that the Americans with 21 Disabilities Act (“ADA”) abrogates state sovereign immunity, and that the State Bar Defendants 22 “violated Plaintiff’s ADA rights.” Opp’n to State Bar MTD at 3–4. Delacruz quotes the 23 applicable provision of the ADA, which states: 24 A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction 25 for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) 26 are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. 27 10 1 42 U.S.C. § 12202 (emphasis added). 2 Having acknowledged that this provision abrogates sovereign immunity only for violations 3 of the ADA, Delacruz proceeds to recite elements supporting an ADA claim that are wholly absent 4 from the Complaint. Compare Opp’n to State Bar MTD at 4, with Compl. at 6–7. In the 5 Complaint, other than listing the ADA as one of the statutes giving rise to federal question 6 jurisdiction, see Compl. at 4, Delacruz does not assert any claims involving his disability. 7 Delacruz may not amend the Complaint through briefing, and “allegations raised for the first time 8 in the briefing are not considered in determining the sufficiency of the complaint.” Diamond S.J. 9 Enterprise, Inc. v. City of San Jose, No. 18-CV-01353-LHK, 2018 WL 5619746, at *6 (N.D. Cal. 10 Oct. 29, 2018) (quoting SriCom, Inc. v. EbisLogic, Inc., 2012 WL 4051222, at *6 (N.D. Cal. Sept. 11 13, 2012) (alteration omitted)). Delacruz was previously admonished that, “[a]lthough a pro se 12 litigant’s pleading and papers should be construed liberally, argument in opposition cannot cure a 13 defect in the pleading.” Delacruz II, 2017 WL 3129207, at *3. Accordingly, because Delacruz 14 failed to plead any ADA claim in the Complaint, the ADA’s abrogation of state sovereign 15 immunity for ADA claims is wholly inapposite to the case at hand. Moreover, Delacruz has raised 16 his ADA claims previously in other suits. Most recently, in Delacruz II, the court found his ADA 17 claim barred by res judicata because the California Supreme Court had previously denied this 18 claim on the merits. See Delacruz II, 2018 WL 3077750, at *11. 19 Second, the Ex parte Young doctrine does not apply to the State Bar. The Ex parte Young 20 doctrine only permits federal court jurisdiction “over a suit against a state official when that suit 21 seeks only prospective injunctive relief.” Seminole Tribe, 517 U.S. at 73. Thus, as the Delacruz II 22 court previously explained, the Ex parte Young doctrine does not apply to suits “against a state, an 23 ‘arm of the state,’ its instrumentalities, or its agencies.” Delacruz II, 2017 WL 3129207, at *2 24 (quoting Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995)). Because the State Bar is a 25 state agency and not a state official, Ex parte Young does not apply, and sovereign immunity 26 pursuant to the Eleventh Amendment bars Delacruz’s claims against the State Bar. Similarly, 27 11 1 sovereign immunity bars Delacruz’s request for “damages over seven years in excess of 2 $2,100,000” from both the State Bar and Moawad, Compl. at 7, because the request seeks 3 remedial, monetary relief, rather than prospective, injunctive relief, see Seminole Tribe, 517 U.S. 4 at 73. In fact, the Delacruz II court previously dismissed with prejudice claims for monetary 5 damages against the State Bar and related officials on the same ground of sovereign immunity. 6 See Delacruz II, 2017 WL 3129207, at *2. Accordingly, the Court dismisses without leave to 7 amend all of Delacruz’s claims against the State Bar, as well as Delacruz’s claim for damages 8 against Moawad. 9 However, the Ex parte Young doctrine does permit Delacruz to bring claims for 10 prospective, injunctive relief against Moawad in his official capacity. See Seminole Tribe, 517 11 U.S. at 73. Delacruz asserts two such claims for prospective, injunctive relief. Delacruz requests 12 that the Court enjoin all of the defendants “from colluding with the State Bar [in] violating the 13 RICO Act through the State Bar’s pattern of collecting thousands of dollars in fees.” Compl. at 7. 14 Delacruz also requests that the Court enjoin all of the defendants from “disclosing or 15 disseminating the aforementioned false police report . . . and to destroy all physical and digital 16 copies therefore.” Id. These claims for relief appear to request prospective, injunctive relief from 17 Moawad in his official capacity, and they therefore fall into the Ex parte Young exception to 18 sovereign immunity. See Seminole Tribe, 517 U.S. at 73. 19 The Court is unpersuaded by the State Bar Defendants’ remaining immunity arguments as 20 to Moawad. Specifically, the State Bar Defendants argue that Moawad is entitled to absolute or 21 qualified immunity. State Bar MTD at 6–7. However, these immunities are personal immunities 22 available only to individuals sued in their individual capacities. In Lewis v. Clarke, 137 S. Ct. 23 1285, 1291 (2017), the United States Supreme Court clarified the distinction between an official- 24 capacity suit and an individual-capacity suit and explained, “An officer in an individual-capacity 25 action . . . may be able to assert personal immunity defenses, such as, for example, absolute 26 prosecutorial immunity in certain circumstances.” Similarly, the Ninth Circuit has held that 27 12 1 qualified immunity is “a defense available only to government officials sued in their individual 2 capacities.” Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 965 (9th Cir. 2010). Because the 3 State Bar Defendants acknowledge that “the Court must construe the suit to be against Moawad in 4 his official capacity,” State Bar MTD at 6, they cannot also claim that personal immunities apply. 5 In sum, sovereign immunity bars all of Delacruz’s claims against the State Bar, as well as 6 its claim for monetary damages against Moawad. Accordingly, the Court GRANTS the State Bar 7 Defendants’ motion to dismiss these claims. Because amendment of these claims would be futile 8 in light of the State Bar Defendants’ immunity, dismissal is without leave to amend. See 9 Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). By contrast, Moawad 10 is not entitled to any form of immunity for claims against him requesting prospective, injunctive 11 relief, although the Court finds dismissal of these claims appropriate on other grounds as 12 explained below. 13 2. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 14 Defendants also move for dismissal under Rule 12(b)(6) on the grounds of (1) Noerr- 15 Pennington immunity, as to Claim Two against Defendant Sherman and Defendant Ferguson, 16 Praet, & Sherman APC (“FP&S”); (2) statute of limitations, as to Claim One against all 17 defendants; (3) Heck preclusion, as to Claim One against all Defendants; and (4) failure to state a 18 RICO violation, as to Claim One and Claim Two against all Defendants.2 The Court considers the 19 Defendants’ arguments in turn below. 20 a. Noerr-Pennington Immunity 21 The Fresno Defendants argue that Sherman and FP&S are entitled to immunity under the 22 Noerr-Pennington doctrine as to Claim Two. The Court agrees. 23 “Under the Noerr–Pennington doctrine, those who petition any department of the 24 25 2 The parties also dispute whether Delacruz has standing to bring claims under Cal. Bus & Prof. 26 Code section 6085 because he is not licensed by the bar. See Fresno MTD at 4–5; Opp’n to Fresno MTD at 1–3. In light of the numerous reasons warranting dismissal as discussed below, 27 the Court need not reach this dispute. 13 1 government for redress are generally immune from statutory liability for their petitioning 2 conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). This doctrine derives from 3 the First Amendment’s guarantee of “the right of the people . . . to petition the Government for a 4 redress of grievances.” See U.S. Const. amend. I. While the Noerr–Pennington doctrine arose in 5 the antitrust context, the United States Supreme Court has since held that “Noerr-Pennington 6 principles ‘apply with full force in other statutory contexts’ outside antitrust.” Kearney v. Foley & 7 Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009) (quoting Sosa, 437 F.3d at 930). Moreover, the 8 Ninth Circuit has specifically applied the Noerr–Pennington doctrine to claims brought under 9 RICO. See, e.g., Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643–48 (9th Cir. 2009); Sosa, 10 437 F.3d at 929–32. 11 To determine whether a defendant’s conduct is immunized under Noerr-Pennington, a 12 court must apply a three-part test, whereby a court must “(1) identify whether the lawsuit imposes 13 a burden on petitioning rights, (2) decide whether the alleged activities constitute protected 14 petitioning activity, and (3) analyze whether the statutes at issue may be construed to preclude that 15 burden on the protected petitioning activity.” Kearney, 590 F.3d at 644. Here, the only conduct 16 Delacruz alleges against Sherman and FP&S3 is that they “violated RICO because they violated 17 Delacruz’[s] constitutional rights to privacy when they disseminated a police report around June 18 11, 2015 . . . via email” to twenty-four email addresses. Compl. at 6. The Court finds that this 19 alleged conduct is protected under Noerr-Pennington. 20 As to the first element, the Court finds that Delacruz’s lawsuit would “impose a burden” 21 on Sherman’s and FP&S’s petitioning rights. See Kearney, 590 F.3d at 644. Noerr-Pennington 22 immunity exists, in part, to “ensure citizens may enjoy the right of access to the courts without 23 fear of prosecution.” Sosa, 437 F.3d at 934. As the Ninth Circuit concluded in Sosa, “[a] 24 successful RICO claim would quite plainly burden” the ability of Sherman and FP&S to freely 25 26 3 As discussed supra note 1, the Court construes Claim Two to be alleged against both Sherman 27 and FP&S. 14 1 engage in future litigation due to imminent threat of treble RICO damages for discovery 2 communications. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 932 (9th Cir. 2006); 18 U.S.C. § 3 1964(c) (treble damages for civil RICO). Moreover, Delacruz’s argument that his lawsuit would 4 “discourage[] . . . future violations of constitutionally protected privacy rights” concedes that the 5 instant suit would impact how Sherman and FP&S conduct litigation in the future. See Opp’n to 6 Fresno MTD at 22. The Court thus finds that the first prong of the test for Noerr-Pennington 7 immunity is met because “the lawsuit imposes a burden on [Sherman & FP&S’s] petitioning 8 rights.” See Kearney, 590 F.3d at 644. 9 As to the second element, Ninth Circuit precedent clearly demonstrates that “the alleged 10 activities constitute protected petitioning activity.” See Kearney, 590 F.3d at 644. Specifically, 11 the United States Supreme Court has held that the “right of access to the court is [an] aspect of the 12 right of petition.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). 13 Accordingly, courts have held that protected petitioning activities include representing another in 14 court proceedings and filing papers with the court. See, e.g., Rupert v. Bond, No. 12-CV-05292- 15 LHK, 2013 WL 5272462, at *8 (N.D. Cal., Sept. 17, 2013) (holding that Noerr–Pennington barred 16 plaintiff’s claims against defendants “for their conduct representing parties in a court 17 proceeding.”). In Kearney, the Ninth Circuit applied those protections to a lawsuit that challenged 18 “discovery communications, interactions with expert witnesses and contractors, and statements to 19 the court.” 590 F.3d at 645. The Ninth Circuit found that the plaintiff’s challenge to those facets 20 of litigation would ultimately burden the defendants’ right to petition the courts because even a 21 lawsuit challenging “conduct incidental to litigation” implicates protected petitioning rights. Id. at 22 645. The court reasoned that the First Amendment required “breathing space” to allow for “the 23 effective exercise of petitioning rights.” Id. (quoting Sosa, 437 F.3d at 933). As in Kearney, 24 Delacruz here challenges “discovery communications”: namely, an email to twenty-four parties 25 that shared a police report. See Compl. at 6. Because the Ninth Circuit has squarely held that 26 discovery communications are protected “conduct incidental to litigation,” the Court finds that 27 15 1 “the alleged activities constitute protected petitioning activity.” See Kearney, 590 F.3d at 644–45. 2 As to the third element, the Court finds that RICO does not authorize the burden that 3 Delacruz’s suit would place on Sherman’s and FP&S’s right to petition the courts. Id. at 644. 4 Specifically, for the third prong of the test for Noerr-Pennington immunity, a court must “analyze 5 whether the statutes at issue may be construed to preclude that burden on the protected petitioning 6 activity.” Id. Put another way, “[t]he question at this stage is whether, given the important goals 7 of RICO, the [RICO] statute proscribes” the circulation of a police report containing an 8 individual’s social security number during litigation. See Sosa, 437 F.3d at 939. As discussed 9 infra Section III.A.2.d, RICO does not proscribe the violation of constitutional rights, including 10 any right to information privacy, but instead enumerates specific predicate acts that constitute 11 “racketeering activity.” See 18 U.S.C. § 1961(1) (defining “racketeering activity”). Accordingly, 12 the Court finds that RICO does not provide special authorization for Delacruz to burden 13 Sherman’s and FP&S’s petitioning rights. 14 Even if the challenged conduct would otherwise be immunized petitioning activity under 15 the Noerr-Pennington three-part test, a court must determine whether the “sham litigation” 16 exception applies. Id. The sham litigation exception “prevent[s] the immunization of conduct that 17 used ‘governmental process . . . as an anticompetitive weapon.’” See Kearney, 590 F.3d at 644 18 (quoting Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998)). “The Ninth Circuit has 19 held that a defendant's activities may fall into this exception if they include making intentional 20 misrepresentations to the court that then “deprive[s] the litigation of its legitimacy.” Id. (quoting 21 Kottle, 146 F.3d at 1060 (alteration in original)). 22 Here, the “sham litigation” exception does not apply. Delacruz makes no argument that 23 Sherman and FP&S were engaged in a sham lawsuit at the time of the discovery communications. 24 See Opp’n to Fresno MTD at 22–24. In fact, Sherman and FP&S emailed Officer Card’s police 25 report in the course of their representation of the City of Fresno, the Fresno Police Department, 26 and Officer Card in a lawsuit brought by Delacruz (specifically, Delacruz I). See Fresno MTD at 27 16 1 2–3, 13. Instead, Delacruz argues only that Officer Card’s police report itself was fraudulent, even 2 though the court in Delacruz I held that claims premised on the invalidity of Officer Card’s police 3 report are barred by the Heck preclusion doctrine. See infra Section III.A.2.c; Delacruz I, 2015 4 WL 5697365, at *7. As such, Delacruz presents no argument that Sherman and FP&S were 5 engaged in their discovery communications “as an anticompetitive weapon.” See Kearney, 590 6 F.3d at 644. Thus, the Court finds that the sham litigation exception does not apply. 7 In sum, the Court holds that Sherman’s and FP&S’s email dissemination of the police 8 report during discovery communications in the litigation of Delacruz I qualifies for Noerr- 9 Pennington immunity. Claim Two only alleges that Sherman and FP&S violated RICO because 10 their email, which allegedly shared Delacruz’s social security number, “violated Delacruz’ 11 constitutional rights to privacy.” Compl. at 6. Therefore, because all of Sherman’s and FP&S’s 12 alleged conduct in Count Two is protected, Delacruz may not bring Claim Two. Additionally, the 13 Court finds that any amendment of Claim Two would be futile in light of this immunity. See 14 Leadsinger, 512 F.3d at 532; see Delacruz I, 2017 WL 3670791, at *8 (“[T]here are no additional 15 facts that would render Plaintiff’s federal claims capable of overcoming Noerr-Pennington 16 immunity because they stem from protected petitioning activity that does not fall within the sham 17 exception.”). Accordingly, the Court GRANTS the Fresno Defendants’ motion to dismiss Claim 18 Two in its entirety with prejudice. 19 b. Heck Preclusion 20 The Fresno Defendants argue that the Court should dismiss Claim One with prejudice 21 because of the Heck preclusion doctrine. Fresno MTD at 5–7. The Court agrees that the Heck 22 preclusion doctrine may apply. However, because Delacruz fails to plead his RICO claims with 23 particularity, the Court need not reach the Heck preclusion issue. 24 Specifically, in Delacruz I, United States District Judge Davila held that Delacruz’s claims 25 against Officer Card were barred by the Heck preclusion doctrine. 2015 WL 5697365, at *7. 26 Judge Davila so held because “[a] judgment in favor of Plaintiff in this case, based partly on a 27 17 1 finding that Officer Card falsified the facts underlying Plaintiff's domestic violence conviction, 2 would ‘necessarily imply’ the invalidity of that conviction, which is not alleged to have been 3 nullified by the state court.” Id. Thus, the Heck preclusion doctrine continues to bar claims that 4 are premised on the falsity of Officer Card’s police report, absent any nullification of Delacruz’s 5 conviction. 6 In the instant case, the Fresno Defendants again argue that the Heck preclusion doctrine 7 applies because Delacruz’s claims “arise from [Delacruz]’s criminal conduct.” Fresno MTD at 5. 8 However, as explained infra Section III.A.2.d, Delacruz fails to articulate Claim One of the 9 Complaint exactly what fraudulent acts constitute a RICO violation. The Complaint merely states: 10 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 11 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 12 aforementioned federal and constitutional rights would be recognized pursuant to Business & Professions Code §6085 of the State Bar Act. 13 Compl. at 6. However, Delacruz’s prayer for relief requests that Defendants be enjoined “from 14 disclosing or disseminating the aforementioned false police report,” id. at 7, and Delacruz makes 15 numerous references in his opposition to the falsity of the police report, see, e.g., Opp’n to Fresno 16 MTD at 22. Accordingly, it is unclear whether the allegations of fraud in fact include allegations 17 about the falsity of Officer Card’s police report. Because Delacruz fails to plead Defendant’s 18 alleged fraud with sufficient particularity and because dismissal is warranted on other grounds, the 19 Court need not reach the Fresno Defendants’ Heck preclusion arguments. 20 c. Statute of Limitations 21 The Fresno Defendants argue that the Court should dismiss the remaining RICO claim in 22 Claim One as barred by the four-year statute of limitations. Fresno MTD at 10 (citing Agency 23 Holding Corp. v. Malley-Duff Assocs., Inc., 483 U.S. 143, 156 (1987)). Plaintiff responds that his 24 claim is not time-barred because he “began to prepare for his third law license application in June 25 of 2019.” Opp’n to Fresno MTD at 24. The Court agrees with the Fresno Defendants that Claim 26 One is time-barred. 27 18 1 As far as timing is concerned, Delacruz’s theory of RICO liability in Claim One is 2 internally contradictory. In the Complaint, Delacruz alleges that “the events giving rise” to Claim 3 One occurred “[b]eginning around June 2019.” Compl. at 5. However, in describing the facts 4 underlying his claim, Delacruz alleges that the pattern of wire fraud and mail fraud “span[ned] 5 several years.” Id. at 6. In his opposition, Delacruz explains that the June 2019 date is when he 6 began to prepare his third law license application. See Opp’n to Fresno MTD at 8, 24. 7 Specifically, Delacruz attempts to rectify the discrepancy by arguing: “[T]his Court can draw on 8 its experience and common sense pursuant to Iqbal, 556 U.S. at 679[,] that June 2019 is the date 9 that Plaintiff began to prepare for his third law license application and ‘spanning several years’ are 10 the dates of the ‘predicate acts’ and ‘continuity’ elements that RICO requires . . . .” Id. at 8. Thus, 11 Delacruz concedes that the predicate acts and continuity elements precede the preparation of his 12 third law license application in June 2019. By Delacruz’s own admission, his claim did not accrue 13 as recently as June 2019, but rather “several years” earlier when the alleged “predicate acts” 14 occurred. Id. 15 The Complaint provides further clarity on the nature and timing of the alleged RICO 16 violation in Claim One. Delacruz explains that the conduct in Claim One would lead to 17 irreparable harm because “Delacruz’[s] two previous law licenses were denied because the 18 defendants as private and public enterprises colluded with the State Bar by using the U.S. postal 19 service, telephone and internet spanning several years to conduct their pattern of multiple false 20 pretenses and fraudulent misrepresentations to Delacruz in violation of the RICO Act.” Compl. at 21 7. Delacruz’s prayer for relief is consistent; he requests “damages over seven years in excess of 22 $2,100,000 because of lost income as an attorney and from at least $5,051 in fees that Delacruz 23 paid the State Bar.” Id. Accordingly, even construing the Complaint liberally, the Court finds that 24 the alleged RICO violation in Claim One must necessarily have involved predicate acts “over 25 seven years” ago. See id. 26 Under the Ninth Circuit’s claim accrual rules for RICO violations, this RICO claim is 27 19 1 untimely. Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996), is instructive. In Grimmett, the 2 Ninth Circuit explained the two components of the Ninth Circuit’s longstanding “injury 3 discovery” rule for RICO claims: 4 First, the civil RICO limitations period “begins to run when a plaintiff knows or should know of the injury that underlies his cause of action.” The plaintiff need not 5 discover that the injury is part of a “pattern of racketeering” for the period to begin to run. The second part of the “injury discovery” rule is the “separate accrual rule,” 6 which provides that a new cause of action accrues for each new and independent injury, even if the RICO violation causing the injury happened more than four years 7 before. 8 Id. at 510 (citations omitted). Applying this rule, the Ninth Circuit rejected as untimely a 9 plaintiff’s RICO claim that she had been deprived of half of her ex-husband’s medical practice 10 interest. Id. at 512. The court reasoned that, because the plaintiff had knowledge of her injury at 11 least by May 1989, when she filed a complaint alleging a fraudulent scheme, her RICO claim filed 12 over four years later was untimely. Id. The Court rejected the plaintiff’s argument that the 13 “separate accrual rule” applied based on her allegations that she continued to suffer injuries. Id. at 14 513–14. The Court explained that for a claim to have separately accrued, “[i]t must be a new and 15 independent act that is not merely a reaffirmation of a previous act,” and “[i]t must inflict new and 16 accumulating injury on the plaintiff.” Id. at 513 (quoting Pace Indus., Inc. v. Three Phoenix Co., 17 813 F.2d 234 (9th Cir. 1987)). Because her injuries all stemmed from the loss of her interest in 18 her former husband’s medical practice, the Court found that there was no new and independent 19 injury that could render the plaintiff’s claim timely. 20 Grimmett is on all fours with the instant case. As in Grimmett, Delacruz indisputably 21 knew of his injury, the denial of his law license, when he filed his first complaint in Delacruz I on 22 December 4, 2014, which alleged nineteen causes of action against 54 defendants, including a 23 claim for conspiracy that “the State Bar repeatedly violated Plaintiff’s foregoing civil rights by 24 colluding” to “have Plaintiff’s law license denied.” See Delacruz I, ECF No. 1, at ¶ 341. Thus, 25 given the four-year statute of limitations, Delacruz had until December 2018 at the latest to file 26 suit alleging a RICO violation, which he failed to do. 27 20 1 Moreover, having now filed suit, Delacruz fails to allege a “separate accrual” because he 2 does not assert any “new and independent” act or injury. See Grimmett, 75 F.3d at 513. “[T]he 3 injuries [Delacruz] claims are identical to those alleged previously,” see id. at 514; namely, the 4 repeated denial of his law license and the loss of his income as an attorney over seven years. See, 5 e.g., Delacruz I, Complaint, ECF No. 1 at ¶ 341 (alleging “damages to Plaintiff by depriving a 6 United States citizen of a livelihood”). In the instant case, Delacruz again bases his claims, at least 7 in part, on the fact that his “two previous law licenses were denied,” Compl. at 7, an issue he has 8 twice raised previously in federal court. See Delacruz I, ECF No.1; Delacruz II, ECF No. 1. 9 Finally, even as to Delacruz’s anticipated third application for a law license, any new allegations 10 would at most constitute “merely a reaffirmation of a previous act,” see Grimmett, 75 F.3d at 513: 11 namely, the State Bar’s two previous denials of his law license. Absent any new and independent 12 injury, Delacruz has not separately accrued a cause of action that could render the instant suit 13 timely. 14 As a result, Delacruz’s RICO claim in Claim One is untimely, and the Court dismisses that 15 claim in its entirety as to all Defendants. Furthermore, the Court finds that amending Claim One 16 would be futile. See Leadsinger, 512 F.3d at 532. Plaintiff has admitted that Claim One is based 17 on conduct “spanning several years” as the predicate acts supporting a RICO violation. See Opp’n 18 to Fresno MTD at 8. Similarly, “damages may not be recovered for injuries sustained as a result 19 of acts committed outside the limitations period.” Grimmett, 75 F.3d at 512 (quoting State Farm 20 Mut. Auto Ins. Co. v. Ammann, 828 F.2d 4, 5 (9th Cir. 1987)). Thus, Plaintiff simply cannot 21 amend his RICO claim to allow him to recover for his pleaded injury, including “over seven 22 years” worth of lost income. See Compl. at 7. The Court thus GRANTS the Fresno Defendants’ 23 motion to dismiss Claim One with prejudice. 24 d. Failure to Plead a RICO Violation 25 The State Bar Defendants and the Fresno Defendants also argue that dismissal pursuant to 26 Fed. R. Civ. P. 12(b)(6) is appropriate because Plaintiff failed to adequately plead a violation of 27 21 1 RICO. State Bar MTD at 8–13; Fresno MTD at 4–14. Although the Court has already dismissed 2 with prejudice Claim One in its entirety as untimely and Claim Two in its entirety under Noerr- 3 Pennington, the Court agrees that neither of Delacruz’s two claims plausibly alleges a RICO 4 violation. Accordingly, the Court addresses these pleading deficiencies below, as they provide 5 additional reasons that warrant dismissal of Delacruz’s complaint. 6 As discussed above, in Delacruz’s Complaint, Delacruz alleges two RICO violations. In 7 Claim One, Delacruz alleges against all defendants a pattern of racketeering based on acts of mail 8 fraud and wire fraud spanning several years. See Compl. at 6. In Claim Two, Delacruz alleges a 9 RICO claim against Sherman and FP&S because of their email circulation of a police report that 10 included Delacruz’s social security number during discovery communications in Delacruz I. Id. 11 Although Delacruz does not allege specifically which subsection of 18 U.S.C. § 1962 the 12 Defendants allegedly violated, the Court construes Delacruz’s pro se Complaint liberally and 13 determines that Delacruz alleges both claims under 18 U.S.C. § 1962(c). To successfully plead a 14 RICO claim under § 1962(c), “Plaintiffs must plausibly allege that Defendants participated, 15 directly or indirectly, in (1) the conduct (2) of an enterprise that affects interstate commerce, (3) 16 through a pattern (4) of racketeering activity.” In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales 17 Practices, & Prod. Liab. Litig., 295 F. Supp. 3d 927, 957 (N.D. Cal. 2018). A RICO plaintiff 18 must also satisfy “RICO’s statutory standing requirements, which require Plaintiffs to plausibly 19 allege (1) an injury to ‘business or property,’ that is (2) ‘by reason of a violation of section 1962.’” 20 Id. (quoting § 1964(c)). “RICO is to be read broadly” and should “be liberally construed to 21 effectuate its remedial purposes.” Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007) (en 22 banc) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497-98 (1985)). Nonetheless, the 23 Court finds that neither claim adequately pleads a RICO violation, and addresses each claim in 24 turn. 25 In Claim One, the Court finds that Delacruz fails to adequately allege the predicate acts to 26 support a RICO claim. Delacruz merely alleges that all of the defendants colluded through “the 27 22 1 U.S. postal service, telephone and internet in violation of 18 U.S.C. § 1341 (mail fraud) and § 2 1343 (wire fraud),” and that this scheme spanned “several years to conduct their pattern of 3 multiple false pretenses and fraudulent misrepresentations to Delacruz.” Compl. at 6–7. 4 These conclusory allegations are plainly insufficient under Ninth Circuit precedent. The Ninth 5 Circuit has long applied the heightened pleading requirements of Federal Rule of Civil Procedure 6 9(b) for claims of fraud, including for predicate acts in RICO claims. See Lancaster Cmty. Hosp. 7 v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991). Specifically, to meet Rule 8 9(b)’s requirements, Delacruz must “detail with particularity the time, place, and manner of each 9 act of fraud, plus the role of each defendant in each scheme.” Id. However, the Complaint lacks 10 any allegation whatsoever regarding the time, place, manner, and role of each of the seven named 11 defendants in Delacruz’s alleged scheme of mail fraud and wire fraud. Accordingly, Claim One 12 fails to meet the pleading requirements of Rule 9(b), and Claim One would thus otherwise be 13 subject to dismissal for failure to state a claim. 14 Similarly, in Claim Two, Delacruz fails to adequately allege predicate acts for a RICO 15 violation. Rather than alleging any enumerated predicate acts defined to be “racketeering 16 activity,” see 18 U.S.C. § 1961(1), Delacruz alleges that the act of disseminating a police report 17 that included his social security number “violated [his] constitutional rights to privacy,” Compl. at 18 6. “There is no RICO predicate based on allegations of unspecified ‘civil rights violations.’” 19 Yagman v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017). The Ninth Circuit has regularly affirmed 20 dismissals of RICO claims based on vague allegations of predicate acts that do not fall within the 21 statutory definition of “racketeering activity.” See, e.g., id.; Banks v. ACS Educ., 638 Fed. App’x 22 587, 589 (9th Cir. 2016). Accordingly, Delacruz fails to adequately allege a RICO conspiracy in 23 Claim Two. This is yet another ground to dismiss Claim Two for failure to state a claim. 24 Although the Court would ordinarily grant leave to amend these pleading deficiencies, the 25 Court has already granted dismissal of both claims in their entirety with prejudice for the reasons 26 stated above. See supra Section III.A.1–2. Thus, Delacruz’s failure to adequately allege a RICO 27 23 1 violation merely provides additional grounds for dismissal, and the Court need not grant leave to 2 amend. 3 B. Delacruz’s Request for a Preliminary Injunction 4 Because the Court dismisses with prejudice the Complaint in its entirety, the Court 5 DENIES as moot Delacruz’s request for a preliminary injunction. 6 C. Delacruz’s Motion for Sanctions 7 Delacruz also filed a motion for sanctions against all of the defendants pursuant to Federal 8 Rule of Civil Procedure 11 and 28 U.S.C. § 1927. In light of Defendants’ meritorious arguments, 9 the Court finds that sanctions are inappropriate. 10 As an initial matter, Defendants argue that the motion is procedurally defective for lack of 11 compliance with Rule 11’s safe harbor requirements. ECF Nos. 50 at 2; 51 at 1. Specifically, 12 Rule 11 provides a “safe harbor” to parties by requiring a 21-day period between service and filing 13 of the sanctions motion, during which time the non-movant may withdraw or correct any 14 sanctionable filings. See Fed. R. Civ. P. 11. In this case, Delacruz failed to serve Defendants with 15 a copy of the motion before it was filed. See ECF No. 49-2 at 1 (proof of service through ECF on 16 date of filing). Because Delacruz failed to comply with Rule 11’s requirements, the Court may not 17 award any sanctions pursuant to Rule 11. See Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 18 789 (9th Cir. 2001). 19 Delacruz also moved for sanctions under 28 U.S.C. § 1927. Unlike Rule 11, Section 1927 20 does not contain a safe harbor requirement. See 28 U.S.C. § 1927. However, even though 21 Delacruz’s motion for sanctions pursuant to Section 1927 is not procedurally deficient, it is 22 without merit. Specifically, Section 1927 permits sanctions where an attorney “multiplies the 23 proceedings in any case unreasonably and vexatiously.” Although Delacruz contends that 24 Defendants misinterpreted case law in their motions to dismiss, he fails to show how Defendants 25 have “multiplie[d] the proceedings . . . unreasonably and vexatiously.” See 28 U.S.C. § 1927. 26 Moreover, as explained supra Section III.A, Defendants’ positions are meritorious and have 27 24 1 resulted in dismissal of the entirety of Delacruz’s Complaint with prejudice. Accordingly, 2 Delacruz’s motion for sanctions is DENIED as meritless. 3 D. State Bar Defendants’ Motion for Sanctions 4 The State Bar Defendants moved under Rule 11 for the Court to enter sanctions against 5 Delacruz. Defs.’ Mot. for Sanctions at 1. Specifically, the State Bar Defendants request that the 6 Court enter an injunctive sanction to impose prefiling restrictions on Delacruz to prevent further 7 meritless lawsuits. Id. at 5. The State Bar Defendants also request that the Court impose a $1,000 8 fine on Delacruz “as a sanction for the waste of the court’s resources.” Id. at 6. In opposition, 9 Plaintiff makes a multitude of scattershot arguments, none of which are meritorious. Although 10 the Court agrees that Delacruz’s history warrants sanctions, the Court opts for monetary sanctions 11 rather than imposing a pre-filing order at this time. 12 With regard to the injunctive sanction, the Ninth Circuit has explained that “such pre-filing 13 orders should rarely be filed,” and set forth four requirements that must be met before such a 14 condition is imposed. De Long v. Hennessey, 912 F.2d 1144, 1147–48 (9th Cir. 1990). 15 Specifically, a court must: 16 (1) give litigants notice and “an opportunity to oppose the order before it [is] entered”; (2) compile an adequate record for appellate review, including “a listing of 17 all the cases and motions that led the district court to conclude that a vexatious litigant order was needed”; (3) make substantive findings of frivolousness or harassment; 18 and (4) tailor the order narrowly so as “to closely fit the specific vice encountered.” 19 Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (quoting De 20 Long, 912 F.2d at 1147–48). The first and second of these requirements are merely procedural, 21 while the last two are substantive. Id. The Ninth Circuit closely scrutinizes pre-filing orders for 22 compliance with both the procedural and substantive requirements and will vacate pre-filing 23 orders that fail to comply with any of these requirements. See, e.g., id. at 1067 (vacating a pre- 24 filing order that complied with the procedural requirements but failed to meet substantive 25 requirements). 26 Here, although a close call, the Court finds that an injunctive sanction requiring pre-filing 27 25 1 screening is not yet warranted. The Court agrees that Delacruz’s history of litigation is replete 2 with meritless filings, which have been denied almost without exception. This history includes: 3 Delacruz I before United States District Judge Davila: 4 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 1 (complaint; dismissed); 5 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 194 (motion to strike; denied); 6 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 197 (motion to strike; denied); 7 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 201 (request for judicial notice; denied as 8 irrelevant); 9 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 253 (amended complaint; dismissed); 10 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 277 (motion to recover expenses and costs; 11 denied as “misplaced”); 12 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 296 (motion seeking partial summary 13 judgment; denied as “premature”); 14 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 297 (motion for mandated default; denied); 15 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 278 (motion for mandated default; denied); 16 • N.D. Cal. Case No. 14-CV-05336-EJD, ECF No. 334 (motion for relief from judgment; denied 17 as “without valid justification”); 18 Delacruz I before the Ninth Circuit Court of Appeals: 19 • Ninth Circuit Case No. 17-17340, ECF No. 61 (motion to expedite case and motion for 20 injunction pending appeal; denied); 21 • Ninth Circuit Case No. 17-17340, ECF No. 66 (denying appeal); 22 • Ninth Circuit Case No. 17-17340, ECF No. 67 (petition for rehearing en banc; denied); 23 Delacruz I before the United States Supreme Court: 24 • United States Supreme Court Case No. 19-194 (petition for writ of certiorari; denied); 25 Delacruz II before United States District Judge Freeman: 26 • N.D. Cal. Case No. 16-CV-06858-BLF, ECF No. 1 (complaint; dismissed); 27 26 1 • N.D. Cal. Case No. 16-CV-06858-BLF, ECF No. 52 (amended complaint; dismissed); 2 • N.D. Cal. Case No. 16-CV-06858-BLF, ECF No. 83 (second amended complaint; stricken as 3 improperly filed); 4 • N.D. Cal. Case No. 16-CV-06858-BLF, ECF No. 91 (motion for relief from order striking 5 second amended complaint; denied as meritless); 6 • N.D. Cal. Case No. 16-CV-06858-BLF, ECF No. 99 (motion for relief from final order; 7 denied); 8 Delacruz II before the Ninth Circuit Court of Appeals: 9 • Ninth Circuit Case No. 18-16956, ECF No. 29, 36 (motions to expedite case and motion for 10 injunction pending appeal; denied); 11 • Ninth Circuit Case No. 18-16956, ECF Nos. 42 (denying appeal); and 12 • Ninth Circuit Case No. 18-16956, ECF Nos. 45 (petition for rehearing en banc; denied). 13 Additionally, in this Order, the Court dismisses Plaintiff’s complaint, ECF No. 1, in its 14 entirety, and denies Plaintiff’s motion for sanctions, ECF No. 49, as meritless. Examining “both 15 the number and content of the filings as indicia” of frivolousness, the Court finds that this record 16 more than adequately demonstrates that Delacruz’s claims have been and continue to be “patently 17 without merit.” See Ringgold-Lockhart, 761 F.3d at 1064 (quoting Molski v. Evergreen Dynasty 18 Corp., 500 F.3d 1047, 1057 (9th Cir. 2007)). In fact, in three separate cases against countless 19 defendants (but always the State Bar) and throughout a plethora of unsupported legal claims, 20 Delacruz has not once stated a meritorious claim nor filed a successful substantive motion. 21 However, given the demanding standards required of such “vexatious litigant” orders, the 22 Court views the State Bar Defendants’ alternative request for monetary sanctions to be the better 23 path. Specifically, Federal Rule of Civil Procedure 11(b) requires attorneys and pro se litigants to 24 certify that, to the best of their knowledge, information, and belief, “the claims, defenses, and 25 other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, 26 modifying, or reversing existing law or for establishing new law.” Rule 11(c) authorizes the 27 27 1 imposition of appropriate sanctions for violations of Rule 11(b). 2 The Court agrees with the State Bar Defendants that a $1,000 fine payable to the Clerk of 3 Court is an appropriate sanction under Rule 11(c) to compensate the Courts for the resources spent 4 continuously adjudicating arguments that were previously found to be without merit. For 5 example, Delacruz should have been aware of the State Bar’s entitlement to sovereign immunity 6 under the Eleventh Amendment, see Delacruz II, 2017 WL 3129207, at *2. Yet in his opposition 7 to the State Bar Defendants’ motion to dismiss, Delacruz provides circuitous and irrelevant 8 arguments to justify the filing of yet another complaint against the State Bar. See Opp’n to State 9 Bar MTD at 1–3. Similarly, Delacruz should have been aware that claims premised on the falsity 10 of Officer Card’s police report would be barred by operation of the Heck preclusion doctrine, see 11 Delacruz I, 2015 WL 5697365, and yet continues to base his arguments on the “sham police 12 report,” see Opp’n to Fresno MTD at 22. Through numerous, substantive rulings issued in 13 Delacruz I and Delacruz II, the Court finds that Delacruz has been provided ample notice that his 14 legal contentions are legally unsupported. As a result, the Court holds that his lengthy and 15 repetitive filings in this case violate Rule 11(b) and warrant the imposition of a $1,000 fine 16 payable to the Clerk of Court. 17 In sum, Delacruz has filed three federal cases designed to overturn the State Bar’s decision 18 denying him a law license, a decision that he has already appealed directly to the California 19 Supreme Court and the United States Supreme Court and that neither accepted for review. See 20 State Bar MTD at 2–3. Delacruz has repeatedly declined to accept the well-reasoned decisions 21 articulated by the Delacruz I and Delacruz II courts, both of which were upheld on appeal and 22 denied en banc rehearing. In the instant, Delacruz again dresses his arguments in different 23 clothing to attempt to procure a different outcome. The Court accordingly GRANTS in part the 24 State Bar Defendants’ motion for Rule 11 sanctions. Should Delacruz attempt to once again 25 relitigate his disputes regarding his law license with the State Bar in a fourth federal lawsuit, 26 additional sanctions, including the imposition of a pre-filing order, would likely be justified by 27 28 1 this record. 2 IV. CONCLUSION 3 For the foregoing reasons, the Court rules as follows: 4 e The Fresno Defendants’ motion to dismiss, ECF No. 33, is GRANTED; 5 e The State Bar Defendants’ motion to dismiss, ECF No. 34, is GRANTED; 6 e Delacruz’s motion for sanctions, ECF No. 49, is DENIED; and 7 e The State Bar Defendants’ motion for sanctions, ECF No. 35, is GRANTED in 8 part. 9 || All of Delacruz’s claims are dismissed with prejudice. Moreover, Delacruz is hereby ORDERED 10 || to pay $1,000 to the Clerk of the Court within thirty days of this Order. 11 IT IS SO ORDERED. a 12 13 Dated: January 15, 2020 14 Jey Hh LUCY @& KOH IS United States District Judge 16 & = 17 Z 18 19 20 21 22 23 24 25 26 27 29 28 Case No. 19-CV-03241-LHK ORDER GRANTING MOTIONS TO DISMISS, DENYING PLAINTIFF’S MOTIONS FOR SANCTIONS AND