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1
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

KAMALA D. HARRIS
Attorney General of California
RICHARD F. WOLFE
Supervising Deputy Attorney General
State Bar No. 85346
110 West A Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2482
Fax: (619) 645-2012
E-mail: Richard.Wolfe@doj.ca.gov
Attorneys for Defendants Commission on
Judicial Performance, Lawrence J. Simi, and
Brad Battson

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR
FAMILIES AND CHILDREN., a
Delaware Corporation, LEXEVIA, PC,
a California Professional Corporation,
and COLBERN C. STUART, an
individual,
Plaintiffs,
v.
SAN DIEGO COUNTY BAR
ASSOCIATION, et al.,
Defendants.
13-cv-1944-CAB (BLM)
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS BY
DEFENDANTS COMMISSION ON
JUDICIAL PERFORMANCE,
SIMI, AND BATTSON
Date: December 19, 2013
Time: 3:30 p.m.
Courtroom: 4C
Judge: Hon. Cathy Ann
Bencivengo
Trial Date: None
Action Filed: August 20, 2013

Defendants Commission on Judicial Performance, Lawrence J. Simi, and Brad
Battson (erroneously named as Batson) respectfully submit this Memorandum of
Points and Authorities in Support of Motion to Dismiss.
/ / /
/ / /
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2
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

INTRODUCTION
Plaintiffs sue judges, social workers, attorneys, and psychologists involved in
family court proceedings in San Diego Superior Court. Plaintiffs also sue other
persons and entities such as the moving Defendants: 1) the California Commission
on Judicial Performance (Commission), 2) former Commission Chairperson
Lawrence J. Simi, and 3) Commission attorney Brad Battson. Plaintiffs claims
against the moving Defendants are based on the Commissions alleged response to
complaints allegedly filed against several judges. Plaintiffs assert claims for
damages and injunctive relief, primarily under federal civil rights and RICO
statutes.
1

MOTION TO DISMISS
This motion is brought under FED. R. CIV. P 12(b)(6) on the ground the
Commission, Simi, and Battson have sovereign immunity under Eleventh
Amendment immunity. In the Ninth Circuit, Eleventh Amendment immunity is
properly raised by Motion to Dismiss under Rule 12(b)(6). Coalition to Defend
Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012) (our precedent
dictates that we resolve an Eleventh Amendment immunity claim before reaching
the merits), and Thomas v. Nakatani, 309 F.3d 1203, 1205 (9th Cir. 2002) (motion
to dismiss on sovereign immunity grounds). The moving Defendants also have
absolute constitutional immunity under CAL. CONST. ART. VI, 18(H) for all state
law claims.
DISCUSSION
I. SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT
A. Commission on Judicial Performance
The sovereign immunity of the States includes the Eleventh Amendments
immunity from suit in Federal court.

1
It appears the Commission, Simi, and/or Battson are named in Counts 1, 2,
12, 13, 14, 15, and 21, and Racketeering Claims 3 through 13.
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3
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

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 State.


U.S. CONST. AMEND XI.
Sovereign immunity applies even though a plaintiff is a citizen of California.
Although the text of the Amendment refers only to suits against a State by citizens
of another State, we have repeatedly held that an unconsenting State also is immune
from suits by its own citizens. Tennessee Student Assistance Corp. v. Hood, 541
U.S. 440, 446 (2004).
Sovereign immunity applies even though a plaintiff seeks to invoke the
Courts supplemental jurisdiction to entertain State law claims. [W]e hold that [28
U.S.C.] 1367(a)s grant of jurisdiction does not extend to claims against
nonconsenting state defendants. Raynor v. Regents of the University of Minnesota,
534 U.S. 533, 542 (2002). See also Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 120 (1984) (decided before enactment of 28 U.S.C.
1367, that neither pendent jurisdiction nor any other basis of jurisdiction may
override the Eleventh Amendment), and Stanley v. Trustees of Cal. State Univ.,
433 F.3d 1129, 1133-1134 (2006) (Thus, we hold that 28 U.S.C. 1367 does not
abrogate state sovereign immunity for supplemental State law claims.).
Sovereign immunity also bars claims for declaratory and injunctive relief.
Unless a State has waived its Eleventh Amendment immunity or Congress has
overridden it, however, a State cannot be sued directly in its own name regardless
of the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). See
also Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1195 (9th Cir.
2005) (claim for injunctive relief barred).
/ / /
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4
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

Sovereign immunity applies to the Commission. [A] suit against a state
agency, in this case the Commission on Judicial Performance is considered to be a
suit against the state and is also barred by the Eleventh Amendment. Ricotta v.
California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998).
In the absence of a waiver by the state or a valid congressional override,
[t]he Eleventh Amendment bars suits which seek either damages or
injunctive relief against a state, an arm of the state, its instrumentalities,
or its agencies. (Citation.) The . . . Commission on Judicial Performance
(a state agency created by Article VI, Section 8 of the California
Constitution to investigate complaints of judicial misconduct) are arms of
California and therefore entitled to Eleventh Amendment immunity.
Missud v. San Francisco Superior Court, No. C 12-03117 WHA, 2012 U.S. Dist.
LEXIS 137351 at *4 (N.D. Cal. Sept. 24, 2012)
2
(internal quotation marks
omitted).
3

See also, Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS,
2012 U.S. Dist. LEXIS 74100 at *4 (E.D. Cal. May 29, 2012) (plaintiff's claim
against the Commission on Judicial Performance must be dismissed because the
Eleventh Amendment serves as a jurisdictional bar to suits brought by private
parties against a state or state agency unless the state or the agency consents to such
suit, and the Commission on Judicial Performance has not consented to suit); and
Narayan v. Cal. Fair Empl. & Hous., No. CIV S-10-3485 JAM DAD PS, 2011 U.S.
Dist. LEXIS 56535 at *4, 2011 WL 2119191 at *2 (E.D. Cal. May 26, 2011)
(Eleventh Amendment bars federal court action against Commission on Judicial
Performance); and Brown v. California, No. C 07-0174 PJH (PR), 2007 U.S. Dist.
LEXIS 8487 at *1, 2007 WL 163103 at *1 (N.D. Cal. Jan. 18, 2007 (same).

2
Affirmed by Missud v. S.F. Superior Court, No. 12-17622, 2013 U.S. App.
LEXIS 17219, 2013 WL 4412220 (9th Cir. Aug. 19, 2013). Petition for certiorari
filed at Missud v. Superior Court of California, County of San Francisco, No. 13-
6518 (Sept. 9, 2013).

3
Californias Commission on Judicial Performance was established by
legislative constitutional amendment approved by the citizens of California. The
commissions authority is set forth in CAL. CONST. ART. VI, 8, 18, 18.1, 18.5.
See Compl. at 18, 261.F., 263.A., 263.B, and 363-365.
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5
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

B. Simi and Battson
Plaintiffs state they sue Defendants Simi and Battson in their individual and
official capacities. Compl. at 19 and 20. However, the Complaint alleges only
conduct pursuant to officials duties. For example, Battson at all times herein
mentioned was the representative, agent, and employee of the [Commission] in
addressing the DDIJO COMPLAINTS I and II and performing the duties of this
office[.] Compl. at 20.
4
See also Compl. at 363.A.-D.
Eleventh Amendment sovereign immunity bars suits for money damages
against State officials in their official capacities. Edelman v. Jordan, 415 U.S. 651,
666-667 (1974); Flint v. Dennison, 488 F.3d 816-824-825 (9th Cir. 2007); Doe v.
Lawrence Livermore Natl Lab., 131 F.3d 838, 839 (9th Cir. 1997); Eaglesmith v.
Ward, 73 F.3d 857, 859 (9th Cir.); Vierria v. Cal. Highway Patrol, 644 F. Supp. 2d
1219, 1232 (E.D. 2009) (RICO claim barred).
This rule has been applied to members and attorneys of the Commission. In
Ricotta v. California, the court denied leave to amend to name the chairperson of
Commission because all claims against the chairperson would be barred by the
Eleventh Amendment. Ricotta, 4 F. Supp. 2d at 976.
In Hyon, the plaintiff attempted to sue one of the Commissions attorneys.
The court held the action was barred by the Eleventh Amendment.
The claim against [Commission attorney] Shimoguchi is also barred by
the Eleventh Amendment since plaintiff's claims against Shimoguchi are
based entirely on Shimoguhi's conduct in carrying out his/her official
duties, and Shimoguchi has not consented to suit. Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 121 . . . ([A] claim that
state officials violated state law in carrying out their official
responsibilities is a claim against the State that is protected by the
Eleventh Amendment.); Aholelei v. Dept of Public Safety, 488 F.3d
1144, 1147 (9th Cir. 2007) (The Eleventh Amendment bars suits for
money damages in federal court against a state, its agencies, and state
officials acting in their official capacities.).

4
DDIJO refers to Domestic Dispute Industry Judicial Officers. Complaint
at 20. DDIJO COMPLAINT I is described in the Complaint at 83-88. DDIJO
COMPLAINT II is described in the Complaint at 89-90.
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6
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S. Dist.
LEXIS 74100 at *5 (E.D. Cal. May 29, 2012). See also, Borchardt v. Reid, No. CV
08-3086 DOC, 2008 U.S. Dist. LEXIS 91363 at *8-9, 2998 WL 4810791 *3 (C.D.
Cal. Oct. 31, 2008) (Eleventh Amendment bars federal court action against
director-chief counsel of Commission).
Thus, the Eleventh Amendment also bars this action as against former
Commission Chairperson Simi and Commission Attorney Battson.
II. ABSOLUTE IMMUNITY UNDER CALIFORNIA CONSTITUTION
Although the Eleventh Amendment bars this entire action against them,
Defendants Simi and Battson have a separate, absolute constitutional immunity
from claims brought under California law.
CAL. CONST. ART. VI, 18(H) provides as follows:
Members of the commission, the commission staff, and the examiners
and investigators employed by the commission shall be absolutely
immune from suit for all conduct at any time in the court of their official
duties.
Section 18(h) was enacted by the California voters in 1994 as part of
Proposition 190. Recorder v. Comm'n on Judicial Performance, 72 Cal. App. 4th
258, 263 (1999). Among other things, section 18(h) makes clear that commission
staff and employees cannot be sued for any act undertaken in the course of their
official duties. Recorder, 72 Cal. App. 4th at 267.
It appears that only Counts 1 and 2 name Defendants Simi and Battson and
include supplemental state claims. Compl. at 69 and 71. Although the precise
nature of the state law claims is unclear, no state law claims can be brought against
Defendants Simi and Battson and must be dismissed.
5


5
That Plaintiffs combine federal civil rights and supplemental state law
claims in the same count is of no moment. Section 1983 imposes liability for
violations of rights protected by the Constitution, not for violations of duties of care
arising out of tort law. Baker v. McCollan, 443 U.S. 137, 146 (1979).
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7
Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance,
Simi, and Battson (13-cv-1944-CAB-BLM)

CONCLUSION
The Eleventh Amendment bars this action as against Defendants Commission
on Judicial Performance, Lawrence J. Simi, and Brad Battson. Moreover, all state
law claims against Defendants Simi and Battson are barred by absolute
constitutional immunity under California law. The moving Defendants Motion to
Dismiss should be granted without leave to amend, and judgment entered
accordingly.


Dated: November 14, 2013

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
s/Richard F. Wolfe
RICHARD F. WOLFE
Supervising Deputy Attorney General
Attorneys for Defendants
Commission on Judicial
Performance, Lawrence J. Simi, and
Brad Battson




















SD2013705982
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