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Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 1 of 30 Page ID #:4002

1 Sarah L. Overton (SBN 163810)


2 CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C.
3801 University Avenue, Suite 560
3 Riverside, CA 92501
4 (951) 276-4420
(951) 276-4405 facsimile
5
soverton@cmda-law.com
6 Attorneys for Defendants
the Honorable Tani G. Cantil-Sakauye,
7 Chief Justice of California; Martin N. Hoshino,
8 Administrative Director

9 UNITED STATES DISTRICT COURT


10 CENTRAL DISTRICT OF CALIFORNIA
11 ) CASE: CV 14-01413 VBF (E)
)
12 ) Judge: Hon. Valerie B. Fairbanks
MICHAELWALDEN SMITH, )
13 )
) NOTICE OF MOTION FOR SUMMARY
14 Plaintiff, ) JUDGMENT/PARTIAL SUMMARY
) JUDGMENT OR IN THE
15 ) ALTERNATIVE DISMISSAL OF THE
v. ) ACTION FOR LACK OF SUBJECT
16 ) MATTER JURISDICTION;
) [Fed. R. Civ. P 12(h)(3) & 56]
17 SUPERIOR COURT OF )
RIVERSIDE COUNTY, et al, ) DECLARATION OF SARAH L.
18 ) OVERTON AND EXHIBITS
)
19 Defendants. ) DECLARATION OF KURT DUECKER
) AND EXHIBIT
20 )
) REQUEST FOR JUDICIAL NOTICE
21 ) AND EXHIBITS
)
22 ) [PROPOSED] ORDER
)
23 ) Date: October 20, 2017
) Time: 9:30 a.m. th
24 ) Dept.: Crtrm 750, 7 Floor
) Judge: Hon. Charles Eick
25 )
)
26
27 NOTICE IS HEREBY GIVEN that on October 20, 2017 at 9:30 a.m. or
28 as soon thereafter as counsel may be heard in Courtroom 750, Seventh Floor, of
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
1
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 2 of 30 Page ID #:4003

1 the above-entitled court located at 255 E. Temple St., Los Angeles, California,
2 defendants the Honorable Tani G. Cantil-Sakauye, Chief Justice of California
3 (Chief Justice), and Martin N. Hoshino, Administrative Director (Hoshino) will
4 and hereby do move this court for summary judgment/partial summary judgment
5 or in the alternative dismissal of the action on the ground that the action has no
6 merit, there is no triable issue as to any material fact and that the defendants are
7 entitled to judgment as a matter of law and/or the court lacks subject matter
8 jurisdiction as follows:
9 1. The court lacks subject matter jurisdiction on the basis of the
10 Rooker-Feldman Doctrine;
11 2. The fourth amended complaint is moot;
12 3. The Eleventh Amendment bars this action against the defendants
13 based upon the undisputed facts;
14 4. The first claim for violation of 42 U.S.C. 1983 deprivation of
15 Equal Protection lacks merit because there is no triable issue as to any material
16 fact and defendants are entitled to judgment as a matter of law;
17 5. The second claim for violation of 42 U.S.C. 1983 deprivation of
18 Due Process/First Amendment right to petition lacks merit because there is no
19 triable issue as to any material fact and defendants are entitled to judgment as a
20 matter of law;
21 6. The fourth claim for a prior restraint to the right to petition lacks
22 merit because there is no triable issue as to any material fact and defendants are
23 entitled to judgment as a matter of law;
24 7. The ninth claim for violation of the California Constitution
25 substantive and procedural Due Process lacks merit because there is no triable
26 issue as to any material fact and defendants are entitled to judgment as a matter of
27 law.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
2
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 3 of 30 Page ID #:4004

1 This motion is based upon this Notice of Motion and Motion, the
2 accompanying Memorandum of Points and Authorities, the Separate Statement of
3 Uncontroverted Facts and Conclusions of Law, the declaration of Kurt Duecker
4 and exhibit, the declaration Sarah L. Overton and exhibits, the Request for
5 Judicial Notice and exhibits and of all pleadings and papers on file in this action,
6 and upon such other matters as may be presented to the Court at the time of the
7 hearing.
8 Pursuant to L.R. 7-3, the conference of counsel was held on August 28 &29,
9 2017.
10 Dated: September 5, 2017
11 CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C.
12 /S/ Sarah L. Overton
13 By:
Sarah L. Overton
14 Attorneys for Defendants
15 the Honorable Tani G. Cantil-Sakauye,
Chief Justice of California; Martin N. Hoshino,
16
Administrative Director
17
18
19
20
21
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 4 of 30 Page ID #:4005

1 TABLE OF CONTENTS
2
TABLE OF AUTHORITIES..ii
3
MEMORANDUM OF POINTS AND AUTHORITIES1
4
I. INTRODUCTION...1
5
A. FACTUAL HISTORY....1
6
1. Vexatious Litigant Order of 20041
7
2. Bond Order of 2012.1
8
3. Juvelyns Motion to Obtain Permanent Out of State Custody.2
9
4. Throughout the Family Law Case, Smith has Sought and Obtained
10
Prefiling Orders to File New Motions.............3
11
B. SUMMARY OF ARGUMENT..3
12
II. SUMMARY JUDGMENT OR DISMISSAL OF THE ACTION MUST BE
13
GRANTED .5
14
III. THE CALIFORNIA VEXATIOUS LITIGANT STATUTE IS
15
CONSTITUTIONAL..7
16
IV. THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER
17
PLAINTIFFS CLAIMS TO ADJUDICATE PAST ORDERS OR JUDGMENTS
18
OF THE SUPERIOR COURT....8
19
V. THE FAC IS MOOT..10
20
VI. EX PARTE YOUNG DOES NOT PREVENT THE APPLICATION OF THE
21
ELEVENTH AMENDMENT TO DEFENDANTS PURSUANT TO THE
22
UNDISPUTED FACTS IN THIS CASE11
23
VII. SMITHS FIRST CLAIM FOR VIOLATION OF 42 U.S.C. 1983
24
DEPRIVATION OF EQUAL PROTECTION LACKS MERIT13
25
A. SMITH HAS NOT BEEN TREATED DIFFERENTLY FROM OTHERS
26
SIMILARLY SITUATED14
27
B. A RATIONAL BASIS EXISTED FOR THE TREATMENT OF SMITH
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
i
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 5 of 30 Page ID #:4006

1 AS A VL..15
2 C. SMITH CANNOT SHOW THAT ANY ACTION OF DEFENDANTS
3 DEPRIVED HIM OF A RIGHT..15
4 VIII. PLAINTIFFS SECOND CLAIM FOR 42 U.S.C. 1983 VIOLATION OF DUE
5 PROCESS/FIRST AMENDMENT RIGHT TO PETITION LACKS MERIT16
6 IX. PLAINTIFFS FOURTH CLAIM THAT THE VLS IS AN UNLAWFUL
7 PRIOR RESTRAINT OF HIS RIGHT TO PETITION LACKS MERIT18
8 X. PLAINTIFFS NINTH CLAIM FOR VIOLATION OF THE CALIFORNIA
9 CONSTITUTION LACKS MERIT.20
10 XI. CONCLUSION.21
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
ii
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 6 of 30 Page ID #:4007

1 TABLE OF AUTHORITIES
2
Cases
3
Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398
4
U.S. 281, 296, 90 S. Ct. 1739, 1748, 26 L.Ed.2d 234, 246 (1970) ......... 8
5
Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S. Ct. 2161,
6
2169, 76 L. Ed. 2d 277 (1983) .............................. 19
7
Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113
8
(1971) .......................................... 16, 17
9
California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 913 (9th Cir.
10
1989) ................................................ 6
11
Childs v. PaineWebber Inc., 29 Cal. App. 4th 982, 992 (1994) ........ 7, 20
12
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249,
13
3254, 87 L. Ed. 2d 313 (1985) .............................. 14
14
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483, n.16 , 103
15
S. Ct. 1303, 75 L. Ed. 2d 206 (1983) ........................ 8, 9
16
Durning v. Citibank, N.A., 950 F.2d 1419, 1422-1423 (9th Cir. 1991) ....... 12
17
Engstrum v. First Natl Bank, 47 F.3d 1459, 1462 (5th Cir. 1995) .......... 6
18
Ex Parte Young, 209 U.S. 123, 166, 28 S.Ct. 441, 456, 52 L.Ed. 714 (1908) . 12,
19 13
20
Hall v. Callahan, 727 F.3d 450, 456 (6th Cir. 2013) .............. 14, 19
21
Heidelberg v. Illinois Pirsoner Review Board, 163 F.3d 1025 (7th Cir. 1998) . 20
22
Johnson-Kennedy Radio Corp. v. Chicago Bears Football Club, 97 F.2d 223, 225
23
(7th Cir. 1938) ......................................... 11
24
Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987) .......... 13
25
Lance v. Dennis, 546 U.S. 459, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006), ... 8
26
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013) ............. 17
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
iii
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 7 of 30 Page ID #:4008

1 Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584 F.3d 1232, 1236 (9th Cir.
2 2009) ............................................... 16
3 Moran v. Murtaugh Miller Meyer & Nelson, LLP, 40 Cal.4th 780, 786 (2007) . 7,
4 20
5 Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 586, 96 S. Ct. 2791, 281516, 49 L.
6 Ed. 2d 683 (1976) ...................................... 19
7 Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th
8 Cir. 2000) ............................................. 6
9 Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003) .................... 9
10 Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir. 1998 ........... 9
11 Papasan v. Allain, 478 U.S. 265, 278, 106 S. Ct. 2932, 2940, 92 L. Ed. 2d 209
12 (1986) .............................................. 12
13 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900,
14 908, 79 L. Ed. 2d 67 (1984) ................................ 12
15 Pierce v. Cantil-Sakauye, 628 F. App'x 548, 549 (9th Cir. 2016) ... 7, 14, 17
16 Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 ,44 S. Ct. 149, 68 L. Ed. 362
17 (1923) ............................................... 8
18 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) ........ 6
19 Sec. & Exch. Comm'n v. Med. Comm. for Human Rights, 404 U.S. 403, 407, 92 S.
20 Ct. 577, 57980, 30 L. Ed. 2d 560 (1972) ....................... 10
21 Sinaloa Lake Owners Ass'n v. City of Simi Valley, 864 F.2d 1475, 148182 (9th
22 Cir.) ............................................... 16
23 Soundview Assocs. v. Town of Riverhead, 973 F. Supp. 2d 275, 288 (E.D.N.Y.
24 2013) ............................................... 19
25 Summers v. Earth Island Inst., 555 U.S. 488, 492, 129 S. Ct. 1142, 1148, 173 L.
26 Ed. 2d 1 (2009) ........................................ 11
27 Taliaferro v. Hoogs, 236 Cal.App.2d 521 (1965) .................... 20
28 Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) ................ 18
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
iv
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 8 of 30 Page ID #:4009

1 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 107475, 145 L.
2 Ed. 2d 1060 (2000) ...................................... 14
3 West v. Sec'y of Dep't of Transp., 206 F.3d 920, 924 (9th Cir. 2000) ....... 11
4 Wolfe v. George, 486 F.3d 1120, 112627 (9th Cir. 2007) .......... passim
5 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) .................... 9
6 Wolfgram v. Wells Fargo, 58 Cal.App.4th 43 (1997) ............... 7, 20
7 Worldwide Church of God v. McNair, 805 F.2d 888, 891-92 (9th Cir. 1986) ... 9
8
Statutes
9
28 U.S.C. 1257 ......................................... 9
10
42 U.S.C. 1983 .................................... 13, 16
11
California Code of Civil Procedure 391 .......................... 7
12
California Code of Civil Procedure 391.7 ......................... 7
13
Other Authorities
14
Cal. Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 14-B (Rutter Group 2017) ... 6
15
Cal. Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 2E-3 (Rutter Group 2017) .. 11
16
17 Rules
18 Fed. R. Civ. P. 12 ......................................... 6
19 Fed. R. Civ. P. 56 ......................................... 6
20
21
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
v
3801 University Avenue, ____________________________________________________________________________________________________________________
Suite 560
Riverside, CA 92501
Telephone (951) 276-4420 MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Facsimile (951) 276-4405 ALTERNATIVE DISMISSAL OF THE ACTION
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 9 of 30 Page ID #:4010

1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I.
3 INTRODUCTION
4 A. FACTUAL HISTORY
5 1. Vexatious Litigant Order of 2004
6 Plaintiff Michael Walden Smith (Smith) filed his family law case in April
7 2000 in the Superior Court of California, County of Riverside (Superior Court).
8 After years of Smith filing repetitive and frivolous petitions in the family law
9 case, Smiths ex-wife Juvelyn Smith (Juvelyn) filed a motion to declare Smith a
10 vexatious litigant (VL). Smith filed an opposition to that motion. At the hearing
11 where Juvelyn and Smith were present, the court continued the matter so that
12 Juvelyn could amend her motion. Thereafter, Juvelyn filed an amended VL
13 motion. Smith did not file any opposition to the amended VL motion but he was
14 present at the hearing on the amended motion. At the hearing on September 9,
15 2004, for the reasons set forth in the amended motion, the judge declared Smith
16 to be a VL pursuant to California Code of Civil Procedure 391(b)(2) and (3),
17 i.e. a pro se litigant who repeatedly litigates the same motions and files
18 unmeritorious motions. The court further held that as a VL, Smith was subject to
19 a prefiling order. Separate Statement of Uncontroverted Facts and Conclusions
20 of Law (SS) # 1-11.
21 2. Bond Order of 2012
22 Smith continued to file frivolous motions in the family law case causing
23 increased expense to Juvelyn and causing the court to expend needless judicial
24 resources on adjudicating the same issues. Consequently, when Smith was
25 present at a hearing in March 2012, the judge issued an amended VL order which
26 required Smith to post a bond prior to the filing of further proceedings in that
27 matter (bond order). Thereafter, Smith sought reconsideration of the bond order
28 and filed a motion which set forth Smiths reasons for voiding that order. At a
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-1-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 10 of 30 Page ID #:4011

1 hearing on the motion for reconsideration, the judge explained that the bond
2 order did not prevent Smith from filing new motions by seeking a prefiling order
3 pursuant to the vexatious litigant statute. SS #12, 22, 24.
4 3. Juvelyns Motion to Obtain Permanent Out of State Custody
5 In June 2012, Juvelyn filed a motion to obtain out of state custody of Smith
6 and Juvelyns daughter (hereinafter, referred to as AS) (the custody motion).
7 At the time, AS was already staying with Juvelyn out of state for the summer. SS
8 ##13, 19, 20.
9 In July 2012, Smith attempted to file documents which he now contends
10 were for the purpose of opposing the motion; but which were actually labelled as
11 a new motion and responsive declaration. Indeed, Smith has admitted that the
12 motion and declaration he attempted to file were set forth on Judicial Council
13 forms FL-300 which is entitled Request for an Order and on FL-302 which is
14 entitled Responsive Declaration to Request for an Order. The documents that
15 Smith attempted to file did not state that they were an opposition to the custody
16 motion. Consequently, since a motion brought in a case filed under the
17 California Family Code, is considered new litigation, pursuant to California
18 Code of Civil Procedure 391.7(d), the motion and declaration were rejected for
19 filing by the clerk because no bond had been posted. SS ## 14-16.
20 A hearing was held on the custody motion in July 2012. At the hearing,
21 Smith did not attempt to file any opposing documents. At the hearing, Smith was
22 present and argued his opposition to the motion. Based upon the immediate
23 needs of AS, the court issued an interim order that allowed AS to remain with
24 Juvelyn pending the next court hearing (interim order) and pending an evaluation
25 of AS by a psychologist. SS ##17-21.
26 Thereafter, instead of actively opposing the motion, Smith instead sought
27 to continue the trial of the custody motion for two years while he appealed the
28 bond order and the interim order for temporary custody. SS ##25-30.
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-2-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 11 of 30 Page ID #:4012

1 Finally, in November 2014, a trial was held on the custody motion. Smith
2 presented witnesses, documentary evidence and legal arguments. After listening
3 to all testimony, reviewing all evidence and hearing arguments from all parties
4 including minors counsel, the court made a detailed finding that pursuant to the
5 California Family Code it was in the best interests of AS to continue to reside
6 with Juvelyn. AS has now graduated from high school and has started college.
7 SS ##31-44.
8 4. Throughout the Family Law Case, Smith has Sought and Obtained
9 Prefiling Orders to File New Motions
10 Smith has admitted that he is not aware of any time after the one instance
11 in July 2012, where his documents were rejected for filing on the basis that he
12 had not posted a bond. 1 In fact, the bond order did not affect Smiths right under
13 the 2004 VL order to seek a prefiling order of the Presiding Judge to file a new
14 motion or petition in his family law case. Indeed, Smith did seek prefiling orders
15 from the Presiding Judge for new motions in his family law case many times. In
16 those instances where the filings were not repetitive of issues already adjudicated
17 or frivolous, the Presiding Judge ordered the motions/petitions filed and the
18 matters set for hearing. SS ##12, 22-24, 45-49.
19 B. SUMMARY OF ARGUMENT
20 The operative fourth amended complaint (FAC) alleges that the California
21 vexatious litigant statutes (VLS) as applied to plaintiff Smith in his family law
22 case, violates 42 U.S.C. 1983 with regard to the Equal Protection and Due
23 Process clauses, acts as a prior restraint of Smiths First Amendment right to
24
25
1 According to the case report for RIDIND064209, there was one time prior to July
26
2012, on June 19, 2012, when Smith attempted to file a California Code of Civil
27 Procedure 170.6 peremptory challenge to Judge Counelis to prevent him from
28
hearing the case. That peremptory challenge was rejected for filing because no
bond had been posted. That filing should have been denied because it was untimely
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-3-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 12 of 30 Page ID #:4013

1 petition and violates the California Constitution regarding Due Process.2 The
2 FAC seeks prospective injunctive/declaratory relief against defendants the
3 Honorable Tani G. Cantil-Sakauye, Chief Justice of California (Chief Justice),
4 and Martin N. Hoshino, Administrative Director (Hoshino). The FAC alleges
5 that the VLS has prevented and is preventing Smith from adjudicating a
6 fundamental right to a relationship with his daughter AS in his family law case.
7 The FAC alleges that the VLS has prevented and is preventing Smith from
8 opposing the motion of his ex-wife Juvelyn Smith (Juvelyn) to move AS out of
9 state.
10 Contrary to the allegations in the FAC, Smiths Equal Protection and Due
11 Process rights have not been violated. Contrary to the FAC, there has been no
12 unconstitutional prior restraint of Smiths access to the Superior Court nor have
13 his rights under the California Constitution been violated. Instead, Smith has
14 been given every opportunity to fully litigate his family law case and to oppose
15 the custody motion. Smith has admitted that throughout his family law case, he
16 was permitted to file opposing papers to the custody motion, and to present
17 witnesses and evidence at trial in opposition to that motion. Moreover, Smith has
18 admitted that, regardless of the 2012 bond order, whenever he has desired to file
19 a new motion or a new petition in his family law case, he has sought a prefiling
20 order from the Presiding Judge. Finally, Smith had admitted that the present
21 action is not about AS or about Juvelyn. Rather, according to Smith, the FAC is
22 about the crooked judge who issued the bond order and the one time in July
23 2012 where his motion and declaration were not filed. The FAC is not about any
24 ongoing or future application of the VLS to Smith. SS##1-60.
25
26
since Judge Counelis had already presided over multiple hearings in the case.
27 2 These are the claims remaining in the FAC as set forth by the court after

28
defendants motion to dismiss. See, Report & Recommendation, Dkt 85 & order
Dkt #93.
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-4-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 13 of 30 Page ID #:4014

1 In addition, contrary to the allegations in the FAC, Smith is not currently


2 litigating his family law case. There is nothing left to be adjudicated in that case
3 as Smith was divorced from Juvelyn at least by 2002 and the trial of the custody
4 motion occurred in 2014. There are no pending hearings or issues in the family
5 law case. Indeed, Smiths only child AS is currently attending college. Thus, the
6 entire FAC is moot. SS## 1-3, 33-37, 43, 44.
7 Moreover, despite the allegation in the FAC, Smith is not seeking
8 prospective injunctive/declaratory relief from defendants. Instead, Smith is
9 seeking adjudication of past Superior Court orders. However the FAC alleges
10 only that the VLS as applied to Smith in his family law case violates his rights.
11 The FAC does not pertain to future litigation in other matters and the family law
12 case has concluded. Thus, the Eleventh Amendment bars this action against the
13 defendants who were sued in their official administrative capacities. This is all
14 the more apparent since the vexatious litigant list (VL list) maintained pursuant to
15 California Code of Civil Procedure 391.7 does not now show, nor has it ever
16 shown, that Smith as a VL is or ever was required to post a bond; it shows only
17 that he is subject to a prefiling order. SS##50, 51.
18 Finally, since Smith has admitted that he is actually complaining of past
19 orders of the Superior Court in his family law case, the Rooker-Feldman Doctrine
20 acts as a complete bar to this case. Consequently, based upon Smiths own
21 admissions and statements, and based upon the official court records of the
22 Superior Court, it is clear that Smiths claims lack merit and that there are no
23 triable issues of material fact. Thus, the instant motion must be granted and
24 judgment entered in favor of defendants.
25 II.
26 SUMMARY JUDGMENT OR DISMISSAL OF THE ACTION MUST BE
27 GRANTED
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-5-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 14 of 30 Page ID #:4015

1 The court shall grant summary judgment if the movant shows that there is
2 no genuine dispute as to any material fact and the movant is entitled to judgment
3 as a matter of law. Fed. R. Civ. P. 56.
4 In order to carry its burden of production, the moving party must either
5 produce evidence negating an essential element of the nonmoving party's claim
6 or defense or show that the nonmoving party does not have enough evidence of
7 an essential element to carry its ultimate burden of persuasion at trial. Nissan
8 Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.
9 2000). Indeed, all that is required by the defendant is to show that there is an
10 absence of evidence as to any essential element of plaintiffs case. Engstrum v.
11 First Natl Bank, 47 F.3d 1459, 1462 (5th Cir. 1995) Further, summary judgment
12 may be granted by the court even on a ground not raised in the moving papers.
13 Cal. Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 14-B (Rutter Group 2017).
14 Additionally, a party may raise the issue of subject matter jurisdiction at
15 any time during the proceedings. Fed. R. Civ. P. 12(h)(3). A challenge based
16 upon subject matter jurisdiction may be facial or factual. Safe Air for Everyone v.
17 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the challenger
18 asserts that the allegations contained in a complaint are insufficient on their face
19 to invoke federal jurisdiction. By contrast, in a factual attack, the challenger
20 disputes the truth of the allegations that, by themselves, would otherwise invoke
21 federal jurisdiction. Id. Where the District Court lacks jurisdiction over an
22 action, the proper disposition is to dismiss the action. California Save Our
23 Streams Council, Inc. v. Yeutter, 887 F.2d 908, 913 (9th Cir. 1989).
24 In the present action, the undisputed facts show that Smiths claims lack
25 merit and that either judgment must be entered for defendants as a matter of law
26 or the action entirely dismissed for want of subject matter jurisdiction.
27 III.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-6-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
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Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 15 of 30 Page ID #:4016

1 THE CALIFORNIA VEXATIOUS LITIGANT STATUTE IS


2 CONSTITUTIONAL
3 Pursuant to California Code of Civil Procedure 391(b), a VL includes one
4 who:
5 (2) In any litigation while acting in propria persona, repeatedly files
6 unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are
7 frivolous or solely intended to cause unnecessary delay.
8 (3) Has previously been declared to be a vexatious litigant by any
state or federal court of record in any action or proceeding based
9
upon the same or substantially similar facts, transaction, or
10 occurrence.
11
California Code of Civil Procedure 391.7(a) states that a court may issue a
12
pre-filing order which prohibits a VL from filing any new litigation with any court
13
without first obtaining leave from the presiding judge of that court. In addition, the
14
court may condition the filing of the litigation upon the furnishing of security for
15
the benefit of the defendants. Cal. Code Civ. Proc. 391.7(b).
16
Litigation for proceedings filed pursuant to the Family Code include any
17
petition, application or motion other than a discovery motion. Cal. Code Civ.
18
Proc. 391.7(d).
19
The courts in California have held that the VLS is Constitutional. Moran v.
20
Murtaugh Miller Meyer & Nelson, LLP, 40 Cal.4th 780, 786 (2007); Wolfgram v.
21
Wells Fargo, 58 Cal.App.4th 43 (1997); Childs v. PaineWebber Inc., 29 Cal. App.
22
4th 982, 992 (1994); Taliaferro v. Hoogs, 236 Cal.App.2d 521 (1965).
23
Likewise, in federal court, the Ninth Circuit has found that the VLS is
24
Constitutional. See, Wolfe v. George, 486 F.3d 1120, 112627 (9th Cir. 2007);
25
Pierce v. Cantil-Sakauye, 628 F. App'x 548, 549 (9th Cir. 2016).
26
Here, the bond order has not prevented Smith from opposing the custody
27
motion of Juvelyn or from seeking a prefiling order before filing new motions in
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-7-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
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1 his family law case. Thus, since application of the VLS to Smith which requires
2 him to obtain a prefiling order has been held to pass Constitutional muster,
3 Smiths rights have not been violated and the FAC must fail.
4 IV.
5 THE COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION
6 OVER PLAINTIFFS CLAIMS TO ADJUDICATE PAST ORDERS OR
7 JUDGMENTS OF THE SUPERIOR COURT
8 Smiths lawsuit does not concern present or future application of the VLS
9 to him in his family law case because Smiths family law case is over. Smiths
10 daughter AS is in college. There are no more issues to litigate in family court.
11 Nevertheless, Smith wants a declaration from this Court that the bond order from
12 2012 and the interim order from 2012 were unconstitutional. Smith wants this
13 court to review what Smith claims to be the order of, in his words, a crooked
14 judge in 2012 and to find that there has been fraud committed by the court in
15 his family law case. SS ##31-60.
16 In fact, Smith is not entitled to the relief he seeks because the federal court
17 does not have jurisdiction to review past state court orders and judgments.
18 Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398
19 U.S. 281, 296, 90 S. Ct. 1739, 1748, 26 L.Ed.2d 234, 246 (1970).
20 The Rooker-Feldman doctrine prevents the lower federal courts from
21 exercising jurisdiction over cases brought by "state-court losers" challenging
22 "state-court judgments rendered before the district court proceedings
23 commenced." Lance v. Dennis, 546 U.S. 459, 126 S. Ct. 1198, 163 L. Ed.2d
24
1059 (2006). See also, District of Columbia Court of Appeals v. Feldman, 460
25
U.S. 462, 483, n.16 , 103 S. Ct. 1303, 75 L. Ed.2d 206 (1983); Rooker v. Fidelity
26
Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L. Ed. 362 (1923); Doe &
27
Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001); Olson
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-8-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 17 of 30 Page ID #:4018

1 Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir. 1998; Worldwide Church of
2 God v. McNair, 805 F.2d 888, 891-92 (9th Cir. 1986). The Rooker-Feldman
3 doctrine applies where a party in effect seeks to take an appeal of an
4 unfavorable state-court decision to a lower federal court. Lance v. Dennis, 546
5
U.S. 459, 126 S. Ct. 1198.
6
The federal district court may not review the decisions of state courts even
7
where the plaintiff alleges that the decisions of the state court violate the
8
plaintiffs constitutional rights. Feldman, 460 U.S. at 486, 103 S. Ct. at 1317, 75
9
L. Ed.2d at 225. It is only the United States Supreme Court that may review the
10
decisions of a state court. 28 U.S.C. 1257.
11
Reduced to its essence, Rooker held that when a losing plaintiff in state
12 court brings a suit in federal district court asserting as legal wrongs the
13 allegedly erroneous legal rulings of the state court and seeks to vacate or
set aside the judgment of that court, the federal suit is a forbidden de facto
14
appeal.
15
16 Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003).
17 The present case is a forbidden de facto appeal. Smith complains about
18 orders issued prior to the time the case was filed in federal court.
19 The case of Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) is
20 instructive. In Wolfe, plaintiff alleged that he had previously been declared a VL
21 and was seeking injunctive and declaratory relief against the future enforcement
22 of the VLS in potential future state court actions. Id. at 363. Unlike in this case,
23 in Wolfe plaintiff was not seeking a review of past orders in the state court. Id.
24 The court stated:
25 We construe Wolfe's references to the prior judicial actions as
26 showing that Wolfe has, in the past, acted in such a way as to subject
himself to the operation of the Vexatious Litigant Statute, thereby
27
tending to show that he will act in this way again and that the statute
28 will be enforced against him again. These references are thus part of
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-9-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 18 of 30 Page ID #:4019

1 his demonstration that he is sufficiently threatened with actual harm


2 from the future operation of the Vexatious Litigant Statute that he
has standing to bring the present suit. We do not construe these
3 references as de facto appeals from the decisions in those prior
4 actions.
5
Id. at 364.
6
7
Unlike in Wolfe v. Strankman, Smith wants this court to review the past

8 Superior Court orders. He is not using the 2012 bond order to show how the

9
VLS is currently being applied or will be applied in the future in his family law

10 case. He cannot do this because the 2012 bond order has not and did not prevent

11 Smith from adjudicating the family law case. Indeed, there is no present family

12 law case in which to demonstrate potential future harm. Rather, Smith simply

13 wants a declaration that the bond order was wrong. Smith believes that if this

14
court issues such a declaration, he can expose all of the fraud in the family

15 court. SS## 41-45, 55-60. However, this court does not have subject matter

16
jurisdiction to review past final orders and judgments and, consequently, the

17 action must be dismissed.

18 V.

19 THE FAC IS MOOT

20 The United States Constitution, Article III, section 2, grants to federal

21
courts jurisdiction to hear only cases or controversies. (I)t is well settled

22 that federal courts may act only in the context of a justiciable case or

23 controversy. (Citations.) Sec. & Exch. Comm'n v. Med. Comm. for Human

24 Rights, 404 U.S. 403, 407, 92 S. Ct. 577, 57980, 30 L. Ed. 2d 560 (1972).

25
In limiting the judicial power to Cases and Controversies,
Article III of the Constitution restricts it to the traditional role of
26 AngloAmerican courts, which is to redress or prevent actual or
27 imminently threatened injury to persons caused by private or official
violation of law.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-10-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 19 of 30 Page ID #:4020

1 Summers v. Earth Island Inst., 555 U.S. 488, 492, 129 S. Ct. 1142, 1148, 173 L.
2 Ed. 2d 1 (2009).
3 Specifically, a federal court has no authority to give opinions upon moot
4 questions. Cal. Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 2E-3, 2:4287
5 (Rutter Group 2017). A case becomes moot whenever it los[es] its character as
6 a present, live controversy of the kind that must exist if we are to avoid advisory
7 opinions on abstract propositions of law. (Citation.) West v. Sec'y of Dep't of
8 Transp., 206 F.3d 920, 924 (9th Cir. 2000).
9 In Johnson-Kennedy Radio Corp. v. Chicago Bears Football Club, 97 F.2d
10 223, 225 (7th Cir. 1938) the court dismissed an action for an injunction as moot
11 where the event described in the complaint had already occurred by the time of
12 the appeal. The duty of this court, as of every other judicial tribunal, is to
13 decide actual controversies by a judgment which can be carried into effect, and
14 not to give opinions upon moot questions or abstract propositions, or to declare
15 principles or rules of law which cannot affect the matter in issue in the case
16 before it. Id. at 225.
17 The present action is moot. The FAC claims that the VLS is
18 unconstitutional as applied to him in his family law case. However, Smiths
19 family law case is over. Smith was divorced by 2002. Smiths child is in
20 college in Florida. The instant action is moot because the sole relief being sought
21 is prospective injunctive/declaratory relief in a case which has finally concluded.
22 SS## 41-45, 55-60. Thus, since there is no live controversy, the FAC must be
23 dismissed.
24 VI.
25 EX PARTE YOUNG DOES NOT PREVENT THE APPLICATION OF
26 THE ELEVENTH AMENDMENT TO DEFENDANTS PURSUANT TO
27 THE UNDISPUTED FACTS IN THIS CASE
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-11-
__________________________________________________________________________________________________________________
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Suite 560
Riverside, CA 92501
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Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 20 of 30 Page ID #:4021

1 The Eleventh Amendment to the United States Constitution states [t]he


2 judicial power of the United States shall not be construed to extend to any suit in
3 law or equity, commenced or prosecuted against one of the United States by
4 citizens of another state, or by citizens or subjects of any foreign state.
5 The Eleventh Amendment bars suits which seek damages or injunctive
6 relief against a state, an arm of the state, its instrumentalities, or its agencies.
7 Durning v. Citibank, N.A., 950 F.2d 1419, 1422-1423 (9th Cir. 1991). In
8 addition to the Eleventh Amendment bar against actions involving the state or
9 state agencies, [t]he 11th Amendment [also] bars suit against state officials
10 when the state is the real, substantial party in interest. Pennhurst State Sch. &
11 Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67
12 (1984).
13 Although the Eleventh Amendment generally applies to state officials,
14 such as the Chief Justice and Hoshino, an exception exists for lawsuits brought
15 solely against state officials to enjoin them from continuing to enforce an
16 allegedly unconstitutional statute pursuant to Ex Parte Young, 209 U.S. 123, 166,
17
28 S.Ct. 441, 456, 52 L.Ed. 714 (1908).
18
First, pursuant to the undisputed facts, there is no continuing enforcement
19
of an allegedly unconstutitional statute. Smiths action is limited to the VLS as
20
applied in his family law case and the family law case is over. SS## 41-45.
21
Second, any relief requested for past actions in enforcing the alleged
22
unlawful statute is precluded by the Eleventh Amendment. Papasan v. Allain,
23
478 U.S. 265, 278, 106 S. Ct. 2932, 2940, 92 L. Ed. 2d 209 (1986).
24
Here, Smith only wants relief from past actions. Smith wants past orders
25
of the Superior Court in his family law case declared unconstitutional.
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-12-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 21 of 30 Page ID #:4022

1 Third, in order for the exception in Ex Parte Young to apply, the official
2 must currently have some connection to the enforcement of the statute. Ex Parte
3 Young at 157, 28 S.Ct. at 453.
4 Here, although the Judicial Council is charged with maintaining the official
5
VL list pursuant to California Code of Civil Procedure 391.7, the official VL
6
list does not show that Smith has any bond requirement as part of the VL order.
7
SS ## 50, 51. With regard to application of the bond order in 2012, defendants
8
have had no connection to any past enforcement of that order. Therefore, since
9
Ex Parte Young does not apply pursuant to these undisputed facts, the Eleventh
10
Amendment bars this action against these defendants who have been sued in their
11
official administrative capacities.
12
VII.
13
SMITHS FIRST CLAIM FOR VIOLATION OF 42 U.S.C. 1983
14
DEPRIVATION OF EQUAL PROTECTION LACKS MERIT
15
In the present case, there are no disputed facts as to any material issue
16
which would support Smiths first claim for a violation of 42 U.S.C. 1983
17
based upon a deprivation of Equal Protection. Smiths first claim therefore lacks
18
merit.
19
To demonstrate a claim under 42 U.S.C. 1983, the plaintiff must show:
20
(1) the conduct that harms the plaintiff must be committed under color of state
21
law (i.e., state action), and (2) the conduct must deprive the plaintiff of a
22
constitutional right. Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir.
23
1987).
24
With regard to a deprivation of rights, the Fourteenth Amendment states
25
that no state shall deny to any person within its jurisdiction the equal protection
26
of the laws. The Equal Protection Clause is essentially a direction that all
27
persons similarly situated should be treated alike. (Citation.) City of Cleburne,
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-13-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 22 of 30 Page ID #:4023

1 Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed.
2 2d 313 (1985). [T]he purpose of the equal protection clause of the Fourteenth
3 Amendment is to secure every person within the State's jurisdiction against
4 intentional and arbitrary discrimination, whether occasioned by express terms of
5 a statute or by its improper execution through duly constituted agents.
6 (Citation.) Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073,
7 107475, 145 L. Ed. 2d 1060 (2000). To demonstrate a violation of the Equal
8 Protection Clause, the plaintiff must show that she has been intentionally treated
9 differently from others similarly situated and that there is no rational basis for the
10 difference in treatment. Id.
11 A. SMITH HAS NOT BEEN TREATED DIFFERENTLY FROM
12 OTHERS SIMILARLY SITUATED
13 In the present case, plaintiff alleges that he received unequal protection of
14 the laws because of the VLS and the bond order. Plaintiff, however, cannot
15 demonstrate that he has been treated differently from others similarly situated.
16 With regard to Smiths claim that he was treated differently because of the bond
17 order, such claim is a red herring. The bond order has had no effect on Smiths
18 right to seek a prefiling order under the VLS.
19 In making an equal protection challenge, the plaintiff must demonstrate
20 that a discrimination of some substance has occurred which has not occurred
21 against other individuals who were similarly situated. (Citations.) Hall v.
22 Callahan, 727 F.3d 450, 457 (6th Cir. 2013).
23 The court in Wolfe v. George, 486 F.3d at 112627, held that the VLS does
24 not violate equal protection because [f]requent pro se litigants are not a suspect
25 class meriting strict scrutiny. Likewise, frequent pro se litigants subject to the
26 VLS in family law case are not in a suspect class. See, e.g., Pierce v. Cantil-
27 Sakauye, 628 F. App'x 548, 549 (9th Cir. 2016).
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-14-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 23 of 30 Page ID #:4024

1 Thus, Smith cannot show that, as a VL, he was a member of a suspect class
2 as a matter of law.
3 B. A RATIONAL BASIS EXISTED FOR THE TREATMENT OF
4 SMITH AS A VL
5 A state can rationally distinguish litigants who sue and lose often, sue the
6 same people for the same thing after they have lost, and so on, from other
7 litigants. Wolfe v. George, 486 F.3d at 112627. [T]he California prefiling
8 order does little more than require sua sponte review of a vexatious litigant's
9 complaint to see whether it states a claim before imposing the burden of litigation
10 on a defendant. The defendant could move to dismiss for the same reason, so the
11 statute is not a substantial or irrational bar to access. Wolfe v. George, 486 F.3d
12 at 112627.
13 In the instant case, there was a rational basis for plaintiff being declared a
14 VL in the family law case because he filed repetitive unmeritorious motions
15 which had already been previously adjudicated. SS ## 4-12, 22-24
16 C. SMITH CANNOT SHOW THAT ANY ACTION OF
17 DEFENDANTS DEPRIVED HIM OF A RIGHT
18 Smith cannot show that defendants had or have a personal involvement of
19 any deprivation of right in his family law case. Smith complains of the orders
20 previously entered in his family law case, not how the VLS currently deprives
21 him of any right. Defendants have had no direct personal involvement in past
22 orders in his family law case. Even if the family law case were ongoing, which it
23 is not, the VL list maintained pursuant to 391.7 only reflects a prefiling order
24 requirement. It does not show any bond requirement. SS ##50, 51. Thus, since
25 there are no facts to support Smiths Equal Protection claim, judgment must be
26 entered for defendants.
27 VIII.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-15-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
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Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 24 of 30 Page ID #:4025

1 PLAINTIFFS SECOND CLAIM FOR 42 U.S.C. 1983 VIOLATION OF


2 DUE PROCESS/ FIRST AMENDMENT RIGHT TO PETITION LACKS
3 MERIT
4 In the present case, there are no disputed facts as to any material issue
5 which would support Smiths second claim for a violation of 42 U.S.C. 1983
6 based upon a deprivation of Due Process/First Amendment Right to Petition.
7 Smiths second claim therefore lacks merit.
8 The Fourteenth Amendment states that no State may deprive any person
9 of life, liberty, or property, without due process of law.
10 [D]ue process requires, at a minimum, that absent a countervailing
11 state interest of overriding significance, persons forced to settle their
claims of right and duty through the judicial process must be given a
12 meaningful opportunity to be heard.
13
Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113
14
(1971).
15
16
At the core of the due process clause is the right to notice and a hearing

17 at a meaningful time and in a meaningful manner. Sinaloa Lake Owners Ass'n

18 v. City of Simi Valley, 864 F.2d 1475, 148182 (9th Cir.). Ordinarily, due

19
process of law requires an opportunity for some kind of hearing prior to the

20 deprivation of a significant property interest. Id. at 1482. To satisfy

21
procedural due process, a deprivation of life, liberty, or property must be

22 preceded by notice and opportunity for hearing appropriate to the nature of the

23 case. Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584 F.3d 1232, 1236

24 (9th Cir. 2009).

25 Here, Smith was not deprived of any right without notice and an

26
opportunity to be heard. When Smith was declared a VL it was only after: 1. a

27 motion made by Juvelyn in 2004; 2. an opposition to that motion filed by Smith;

28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-16-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 25 of 30 Page ID #:4026

1 3. two hearings at which Smith was personally present; and, 4. a specific VL


2 order of the court.
3 Nevertheless, the FAC contends that the bond order was unconstitutional
4 because it acted as a bar which prevented Smith from litigating his fundamental
5 relationship of a parent/child in family court. Smith no doubt would cite to
6 Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), to
7 support his contention. In Boddie, welfare recipients brought an action alleging
8 that the payment of court fees and costs for service of process, restricted their
9 access to the courts in their effort to bring an action for divorce. Id. at 372, 91 S.
10 Ct. at 783. However, in discussing whether the plaintiffs had stated a
11 constitutional violation, the Court stated: We do not decide that access for all
12 individuals to the courts is a right that is, in all circumstances, guaranteed by the
13 Due Process Clause of the Fourteenth Amendment so that its exercise may not be
14 placed beyond the reach of any individual.
15 Indeed, since Boddie, the federal court has found that the VLS does not
16 deprive a VL of Due Process even in family law cases. See, e.g., Pierce v.
17 Cantil-Sakauye, 628 F. App'x 548, 549 (9th Cir. 2016); Wolfe v. George, 486
18 F.3d at 112527.
19 With regard to the bond order, that order has not imposed a financial
20 barrier to Smith litigating his family law case. That order has never deprived
21 Smith of any right either to oppose the custody motion or to file new non-
22 frivolous motions after seeking a prefiling order. SS ##4-12, 22-24, 45-49.
23 As the court stated in Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir.
24 2013):
25 Even onerous conditions may be imposed upon a litigant as long as
26 they are designed to assist the ... court in curbing the particular
abusive behavior involved, except that they cannot be so
27 burdensome ... as to deny a litigant meaningful access to the courts.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-17-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
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Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 26 of 30 Page ID #:4027

1 [T]here must be some guidelines as to what [a party] must do to


2 obtain the court's permission to file an action.
3 In Smiths family law case, Smith knew that if he wished to file a new
4 motion in the family law case, he could seek a prefiling order. Indeed, Smith has
5 been seeking such prefiling orders since 2012. SS ##12, 22-24, 45-49.
6 In sum, the right of access to the courts is neither absolute nor
7 unconditional and there is no constitutional right of access to the
courts to prosecute an action that is frivolous or malicious.
8
(Citaitons.) No one, rich or poor, is entitled to abuse the judicial
9 process.
10
Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989).
11
12 Here, plaintiff wanted unfettered access to the courts to relitigate the same
13 frivolous issues. He was therefore declared a vexatious litigant after notice and
14 an opportunity to be heard in 2004. He has not been prevented from opposing
15 Juvelyns petitions or filing meritorious petitions in his family law case. SS ##1-
16 50. Thus, Smiths right to Due Process has not been violated, he has not been
17 unconstitutionally deprived of access to the courts and summary judgment must
18 be entered for defendants.
19 IX.
20 PLAINTIFFS FOURTH CLAIM THAT THE VLS IS AN UNLAWFUL
21 PRIOR RESTRAINT OF HIS RIGHT TO PETITION LACKS MERIT
22 In the present case, there are no disputed facts as to any material issue
23 which would support Smiths fourth claim for an unconstitutional prior restraint
24 of his First Amendment right to petition. Smiths fourth claim therefore lacks
25 merit.
26 The First Amendment grants the right to petition the government for a
27 redress of grievances. The First Amendment protections are applied to the
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-18-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 27 of 30 Page ID #:4028

1 states through the Fourteenth Amendment. Nebraska Press Ass'n v. Stuart, 427
2 U.S. 539, 586, 96 S. Ct. 2791, 281516, 49 L. Ed. 2d 683 (1976).
3 Here the FAC alleges that Smith has been restrained from accessing the
4 courts because of the VLS.
5 [T]he right of access to the courts is an aspect of the First Amendment
6 right to petition the Government for redress of grievances. Bill Johnson's
7 Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S. Ct. 2161, 2169, 76 L. Ed.
8 2d 277 (1983). However, the right to petition the government for redress of
9 grievances is not absolute. Soundview Assocs. v. Town of Riverhead, 973 F.
10 Supp. 2d 275, 288 (E.D.N.Y. 2013). Just as false statements are not immunized
11 by the First Amendment right to freedom of speech baseless litigation is not
12 immunized by the First Amendment right to petition. Bill Johnson's
13 Restaurants, Inc. v. N.L.R.B., 461 U.S. at 743, 103 S. Ct. at 2170. See also,
14 Wolfe v. George, 486 F.3d 1120, 112627 (9th Cir. 2007). Likewise, the court in
15 Hall v. Callahan, 727 F.3d 450, 456 (6th Cir. 2013) stated that: Although access
16 to courts is a fundamental right, the ability to file frivolous lawsuits is not.
17 In fact, in Wolfe v. George, 486 F.3d at 1125, the court found that the VLS
18 did not violate the First Amendment because a vexatious litigant could still file
19 meritorious claims.
20 Here the fourth claim alleges that the VLS as applied to Smith in his
21 family law case, acted as a prior restraint of his right to petition the courts.
22 However, the undisputed facts demonstrate that there has been no prior restraint
23 because as a VL Smith has always had the right in his family law case to seek a
24 prefiling order before filing new meritorious claims. SS ##4-12, 22-24, 45-49.
25 Moreover, Smith has never been restrained from opposing the custody order
26 regardless of the prefiling order. SS ##13-44. Thus, the vexatious litigant statute
27 as applied to plaintiff in his family law case did not act as a prior restraint on
28 Smiths right to petition and judgment must be entered in favor of defendants.
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-19-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 28 of 30 Page ID #:4029

1 X.
2 PLAINTIFFS NINTH CLAIM FOR VIOLATION OF THE CALIFORNIA
3 CONSTITUTION LACKS MERIT
4 In the present case, there are no disputed facts as to any material issue
5 which would support Smiths ninth claim for denial of rights pursuant to the
6 California Constitution, Declaration of Rights, Deprivation of State
7 Constitutional Rights Under Color of Law, Substantive Due Process and
8 Procedural Due Process via Unlawful Application of VLS 391. Smiths ninth
9 claim therefore lacks merit.
10 In construing a state statute, the federal court must follow the interpretation
11 of that statute by the highest court in that state. Heidelberg v. Illinois Pirsoner
12 Review Board, 163 F.3d 1025 (7th Cir. 1998). In that regard, the court in Wolfe
13 v. George, 486 F.3d at 1125 noted with favor that A long line of California
14 decisions upholds [the VLS] statutory scheme against constitutional challenges
15 . The court went on to state: We see no reason to disagree with them. Id.
16 In fact, the California Supreme Court has specifically held that the VLS is
17 constitutional under the California Constitution. Moran v. Murtaugh Miller
18 Meyer & Nelson, LLP, 40 Cal.4th 780, 786 (2007). Many other California courts
19 considering the issue have also upheld the VLS as meeting the requirements of
20 the California Constitution. See, Wolfgram v. Wells Fargo, 58 Cal.App.4th 43
21 (1997); Childs v. PaineWebber Inc., 29 Cal. App. 4th 982, 992 (1994); Taliaferro
22 v. Hoogs, 236 Cal.App.2d 521 (1965). Specifically, the VLS does not violate a
23 plaintiffs right to due process under the California Constitution. Wolfgram, 58
24 Cal.App.4th at 60.
25 In the present case, Smith was declared a VL after notice and an
26 opportunity to be heard pursuant to the VLS. The VL order subjected Smith to a
27 prefiling order. SS ##4-11. The later bond order did not alter Smiths right to
28 seek to file any new motion by seeking a prefiling order. SS ## 22-24, 45-49.
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-20-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 29 of 30 Page ID #:4030

1 After Smiths new motion was rejected in July 2012 because Smith failed to post
2 a bond, no other documents were rejected because a bond hadnt been posted. SS
3 #16. Indeed, the undisputed facts show that Smith fully litigated his family law
4 case to its conclusion. SS ##1-49. Thus, since the undisputed facts show that
5 Smith has not been deprived of his rights under the California Constitution,
6 Smiths ninth claim for violation of the California Constitution lacks merit and
7 judgment must be entered in defendants favor.
8 XI.
9 CONCLUSION
10 For all of the foregoing reasons, the motion of defendants the Honorable
11 Tani G. Cantil-Sakauye, Chief Justice of California, and Martin N. Hoshino,
12 Administrative Director for summary judgment/partial summary judgment or in
13 the alternative dismissal of the action must be granted and judgment entered in
14 defendants favor.
15 Dated: September 5, 2017
16 CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C.
17 /S/ Sarah L. Overton
18 By:
Sarah L. Overton
19 Attorneys for Defendants
20 the Honorable Tani G. Cantil-Sakauye,
Chief Justice of California; Martin N. Hoshino,
21
Administrative Director
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-21-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-E Document 135 Filed 09/05/17 Page 30 of 30 Page ID #:4031

1 PROOF OF SERVICE
2 SMITH V. SUPERIOR COURT OF RIVERSIDE COUNTY, ET AL
3 CASE NO: EDCV14-01413 VBF (E)
4 I, the undersigned, declare as follows:
5 I am employed in the County of Riverside, State of California. I am over
6 the age of 18 years, and not a party to the within action. I am an employee of or
7 agent for Cummings, McClorey, Davis, Acho & Associates, P.C., 3801
8 University Avenue, Suite 560, Riverside, California 92501.
9 I hereby certify that on September 5, 2017, I electronically filed the
10 foregoing NOTICE OF MOTION FOR SUMMARY
11 JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
12 ALTERNATIVE DISMISSAL OF THE ACTION FOR LACK OF
13 SUBJECT MATTER JURISDICTION; [Fed. R. Civ. P 12(h)(3) & 56], with
14 the Clerk of the Court by using the CM/ECF system. I certify that participants in
15 the case that are registered CM/ECF users will receive service that will be
16 accomplished by the appellate CM/ECF system. I further certify that a copy of the
17 foregoing was sent by U.S. First-Class Mail, postage prepaid, as follows:
18
19 MICHAEL WALDEN SMITH
74-801 HOVLEY LANE EAST, UNIT #10776
20
PALM DESERT, CA 92255
21
22 Executed on September 5, 2017, in Riverside, California. I declare under
23 penalty of perjury under the laws of the State of California that the above is true
24 and correct.
25 /S/ Marsha Bradley
26
27
Marsha Bradley

28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
-22-
__________________________________________________________________________________________________________________
3801 University Avenue, MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT OR IN THE
Suite 560
Riverside, CA 92501
ALTERNATIVE DISMISSAL OF THE ACTION
Telephone (951) 276-4420
Facsimile (951) 276-4405