Case 2:10-cv-00048-JFW-CW Document 15 Filed 04/20/10 Page 1 of 14

1 LAWRENCE C. YEE (84208)

email: Lawrence.Yee@calbar.ca.gov
2 MARK TORRES-GIL (91597)
email: mark.torresgil@calbar.ca.gov
3 TRACEY L. MCCORMICK (172667)
email: tracey.mccormick@calbar.ca.gov
4 STATE BAR OF CALIFORNIA
OFFICE OF GENERAL COUNSEL
5 180 Howard Street
San Francisco, CA 94105-1639
6 Tel: (415) 538-1639
Fax: (415) 538-2321
7
MICHAEL VON LOEWENFELDT (178665)
8 email: mvl@kerrwagstaffe.com
KERR & WAGSTAFFE LLP
9 100 Spear Street, 18th Floor
San Francisco, CA 94105–1528
10 Telephone: (415) 371-8500
Fax: (415) 371-0500
11
Attorneys for State Bar Defendants
12 STATE BAR OF CALIFORNIA, BOARD
OF GOVERNORS OF THE STATE BAR
13 OF CALIFORNIA, and SCOTT DREXEL
14
UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
16
RICHARD I. FINE,
17 Case No. CV-10-0048 JFW (CW)
18 Plaintiff, RESPONSE TO ORDER TO
SHOW CAUSE RE DEFAULT
19 v.
20 Honorable Carla Woehrle
STATE BAR OF CALIFORNIA,
21
BOARD OF GOVERNORS OF THE
22 STATE BAR OF CALIFORNIA, and
SCOTT DREXEL, Chief Trial Counsel
23
of the State Bar of California; and THE
24 SUPREME COURT OF CALIFORNIA
(only as a necessary party);
25

26 Defendants.
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1 TABLE OF CONTENTS
2 I.  INTRODUCTION ............................................................................................................ 1 

3 II.  PROCEDURAL HISTORY.............................................................................................. 2 

4 III.  ARGUMENT.................................................................................................................... 4 
5 A.  Defendants Are Part Of California’s State Government And Agents Of
6 The California Supreme Court.............................................................................. 4 

7 B.  Default Should Not Be Entered As A Result of Counsel’s Error In Filing .......... 4 

8 C.  Default Cannot Be Entered In Any Event Because The Court Lacks
Subject Matter Jurisdiction Over This Action ...................................................... 5 
9
IV.  CONCLUSION............................................................................................................... 10 
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1 TABLE OF AUTHORITIES
2 Cases 

3 County of Orange v. Superior Court,

155 Cal. App. 4th 1253 (2007) ......................................................................................... 9
4
Craig v. State Bar of California,
5 141 F.3d 1353 (9th Cir. 1998) .......................................................................................... 7
6 District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983)...................................................................................................... 5, 6
7
Doe v. State Bar of California,
8 415 F. Supp. 308 (N.D. Cal. 1976)
aff’d 582 F.2d 25 (9th Cir. 1978)...................................................................................... 6
9
Fine v. State Bar of California,
10 130 S. Ct. 172 (2009).................................................................................................... 3, 8
11 Gregorian v. Izvestia,
871 F.2d 1515 (9th Cir. 1989) .......................................................................................... 5
12
Hirsh v. Justices of the Sup. Ct. of Cal. et al.,
13 67 F.3d 708 (9th Cir. 1995) .............................................................................................. 5
14 In re Att’y Disc. Sys.,
19 Cal. 4th 582 (1998) ...................................................................................................... 4
15
In re Intermagnetics America, Inc.,
16 926 F.2d 912 (9th Cir. 1991) ............................................................................................ 9
17 In re Rose,
22 Cal. 4th 430, 438 (2000) .......................................................................................... 4, 5
18
Kougasian v. TMSL, Inc.,
19 359 F.3d 1136 (9th Cir. 2004) ...................................................................................... 8, 9
20 Lupert v. Cal. State Bar,
761 F.2d 1325 (9th Cir. 1985), ......................................................................................... 5
21
McKay v. Nesbett,
22 412 F.2d 846 (9th Cir. 1969) ............................................................................................ 6
23 Mothershed v. Justices of the Supreme Court,
410 F.3d 602 (9th Cir. 2005) ........................................................................................ 5, 7
24
O’Neil v. State Bar of Montana,
25 2009 WL 3075355 (D. Mont. June 19, 2009)................................................................... 9
26 Partington v. Gedan,
961 F.2d 852 (9th Cir. 1992.............................................................................................. 7
27
Reusser v. Wachovia Bank,
28 525 F.3d 855 (9th Cir. 2008) ............................................................................................ 9
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1 Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923).......................................................................................................... 5
2
Rosenthal v. Justices of the Supreme Court of California,
3 910 F.2d 561 (9th Cir. 1990) ............................................................................................ 7

4 Scholastic Entertainment, Inc. v. Fox Entertainment Group, Inc.,

336 F.3d 982 (9th Cir. 2003) ............................................................................................ 9
5
Tofano v. Supreme Court of Nevada,
6 718 F.2d 313 (9th Cir. 1983) ........................................................................................ 6, 7

7 Westchester Fire Ins. Co. v. Mendez,

585 F.3d 1183 (9th Cir. 2009) .......................................................................................... 4
8
Statutes 
9
28 U.S.C. § 1257........................................................................................................................... 5
10
28 U.S.C. § 1291........................................................................................................................... 5
11
28 U.S.C. § 1331........................................................................................................................... 5
12
Bus. & Prof. Code § 6010............................................................................................................. 4
13
Bus. & Prof. Code § 6079.5.......................................................................................................... 4
14
Other Authorities 
15
State Bar Rule of Procedure 2.42.................................................................................................. 4
16
Constitutional Provisions 
17
Cal. Const. art. VI § 9 ................................................................................................................... 4
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1 I. INTRODUCTION
2 The State Bar of California, its Board of Governors, and its former Chief
3 Trial Counsel (the “State Bar Defendants”) file this response to the Court’s April 9,
4 2010 Order to Show Cause why defendants’ motion to dismiss should not be
5 stricken and default entered against them.
6 Plaintiff Richard Fine was a California attorney who was disbarred by the
7 California Supreme Court on March 25, 2009. He brings this action against the
8 State Bar Defendants and California Supreme Court (which appears not to have
9 been served) asking this Court to overturn his disbarment order and reinstate him
10 to the active California bar. Although the State Bar Defendants intended to file a
11 motion to dismiss properly supported by a memorandum of points and authorities
12 and request for judicial notice, their initial filing was inadvertently incomplete.
13 The State Bar Defendants agree that their motion should be withdrawn and a new,
14 complete motion filed. They are prepared to do that promptly upon receiving
15 permission from the Court.
16 Default, however, should not, and indeed cannot, be entered because the
17 Court lacks subject matter jurisdiction over this action. Fine is asking this Court to
18 overturn his disbarment by the California Supreme Court, and preliminary orders
19 by the State Bar Court, because he claims those prior state decisions are void. This
20 presents a straightforward application of the Rooker-Feldman doctrine – federal
21 district courts have no power to review or overturn decisions of state courts.
22 Because Fine clearly and only seeks such improper relief, the Court has no
23 jurisdiction over his claims and, indeed, would be justified in dismissing them sua
24 sponte. In addition, Fine’s claims are barred by the Eleventh Amendment, another
25 jurisdictional defect preventing default and requiring dismissal.
26 The State Bar Defendants apologize for their defective initial filing and any
27 inconvenience it has caused. Defendants’ filing snafu, however, cannot justify
28 entry of default in favor of a disbarred California attorney asking the federal court
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1 to overturn his disbarment. Accordingly, the State Bar Defendants’ respectfully

2 request that no default be entered and that either the Court dismiss this action sua
3 sponte or allow them to file a properly supported motion to dismiss.
4 II. PROCEDURAL HISTORY
5 Fine was first admitted to the State Bar of California in 1973. (See Request
6 For Judicial Notice In Support Of Response To Order To Show Cause Re Default
7 [“RJN”] Ex. 1, p. 31.)
8 On October 12, 2007, following State Bar Court disciplinary trial and
9 appellate review proceedings against Fine in Case No. 04-O-14366, the State Bar
10 Court Review Department issued a recommendation of disbarment for extensive
11 misconduct including abuse of the judicial system, violation of court orders, filing
12 of numerous baseless lawsuits and repeatedly pursuing judicial relief for which
13 there was no legitimate basis - acts found to evince moral turpitude in violation of
14 California Business & Professions Code, section 6106. (RJN Ex. 1, pp 28-34.)
15 The State Bar Court Review Department found specifically that Fine
16 “deliberately and for an extended period of time misused this state’s statutory
17 process for challenging a judicial officer’s qualification (i.e. impartiality) to decide
18 a proceeding … then deliberately and repeatedly filing frivolous federal court
19 actions against any judicial officer … who ruled against him, in an attempt to
20 coerce or intimidate the judicial officer into ruling in [his] favor and to have those
21 same judicial officers improperly removed from cases to which they had been duly
22 assigned.” (RJN Ex. 1, p. 28.)
23 As part of the Review Department’s findings of culpability and disbarment
24 recommendation in State Bar Court Case No. 04-O-14366, and in accordance with
25 the requirements of Business and Professions Code, section 6007(c)(4), Fine was
26 placed on involuntary inactive status, effective October 17, 2007 (RJN Ex. 1, p.
27 35), continuing through the date of the California Supreme Court’s order of
28 disbarment on February 11, 2009, which became effective on March 13, 2009.
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1 (RJN Ex. 2.) The California Supreme Court denied Fine’s petition for rehearing on
2 March 25, 2009. (RJN Ex. 3). Fine’s subsequent petition for a writ of certiorari in
3 the United States Supreme Court (No. 08-1573) was denied on October 5, 2009.
4 Fine v. State Bar of California, 130 S. Ct. 172 (2009).
5 On January 5, 2010, Fine filed this action against the State Bar of California,
6 its Board of Governors, its (now former) Chief Trial Counsel Scott Drexel, and the
7 California Supreme Court. Fine brings a single cause of action under 42 U.S.C. §
8 1983 wherein he claims that the disbarment order and preceding State Bar Court
9 order of involuntary inactive enrollment were procured by “extrinsic fraud.” He
10 asks this Court to “void and annul” these orders, and to order the State Bar to list
11 him as “an active member of the Bar as if no disbarment had occurred.”
12 (Complaint pp. 49-50.) Plaintiff purports to have served Mr. Drexel, now no
13 longer working for the State Bar, by substitute service on February 10, 2010, and
14 did serve the State Bar and Board of Governors on February 18, 2010.
15 The State Bar Defendants intended to file a timely motion to dismiss Fine’s
16 patently inappropriate lawsuit. Regrettably, two errors occurred. First,
17 defendants’ counsel at the State Bar’s Office of General Counsel miscalculated the
18 response date. Second, although a motion to dismiss was drafted with a
19 memorandum of points and authorities, only the notice of motion (mis-titled “re-
20 notice”) was filed. (Declaration of Tracey McCormick ¶¶ 4-6.)
21 Counsel was surprised by Fine’s Request for Clerk’s Entry of Default and
22 Combined Reponse. (Id. ¶ 7.) Upon reviewing the file, counsel began preparing a
23 response and properly supported motion to dismiss. This Court’s OSC was issued
24 before counsel completed that task. (Id. ¶¶ 7-8.)
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1 III. ARGUMENT
2 A. Defendants Are Part Of California’s State Government And
Agents Of The California Supreme Court
3

4 The State Bar of California is a public corporation within the judicial branch
5 of state government. Cal. Const. art. VI § 9. The State Bar is the California
6 Supreme Court’s administrative arm for the purpose of assisting in matters of
7 admission, discipline and regulation of the State’s attorneys. In re Rose, 22 Cal.
8 4th 430, 438 (2000); In re Att’y Disc. Sys., 19 Cal. 4th 582, 599-600 (1998). The
9 Board of Governors is the State Bar’s governing body. Bus. & Prof. Code § 6010.
10 The Office of the Chief Trial Counsel (“OCTC”) is the prosecutorial arm of
11 the State Bar in attorney discipline and regulatory matters, under the direction of
12 the Chief Trial Counsel. Bus. & Prof. Code § 6079.5; State Bar Rule of Procedure
13 2.42. Scott J. Drexel is a former Chief Trial Counsel.
14 B. Default Should Not Be Entered As A Result of Counsel’s Error In
Filing
15

16 The policy of the law is to decide cases on the merit, and procedural defaults
17 are disfavored. “As a general rule, default judgments are disfavored; cases should
18 be decided upon their merits whenever reasonably possible.” Westchester Fire Ins.
19 Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009). Counsel for the State Bar
20 Defendants readily admits that the filing of the motion to dismiss did not proceed
21 in the intended, or required, manner. (McCormick Decl. ¶¶ 4-9.) Counsel accepts
22 full responsibility for this failure, and has taken steps to ensure it will not occur
23 again, including retaining additional outside counsel to assist with this case. (Id. ¶¶
24 7-9.) No conceivable prejudice has resulted to Fine as a result of these errors, and
25 only approximately one month of delay has been caused. The State Bar
26 Defendants should not suffer the extreme sanction of default as a result of their
27 counsel’s administrative error. Thus, if this were a discretionary issue for the
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1 Court, the State Bar Defendants believe that it would be entirely proper to allow
2 them to cure the defect in their filing and proceed.
3 C. Default Cannot Be Entered In Any Event Because The Court
Lacks Subject Matter Jurisdiction Over This Action
4

5 This issue is not, however, discretionary because this Court lacks subject
6 matter jurisdiction over this case and therefore no default may be entered. See
7 Gregorian v. Izvestia, 871 F.2d 1515, 1526-27 (9th Cir. 1989) (reversing denial of
8 request for relief from default where the Court lacked subject matter jurisdiction
9 over some of plaintiff’s claims).
10 The primary jurisdictional defect here1 is that federal district courts have no
11 jurisdiction to overturn the decisions of state courts, particularly with respect to
12 membership in the state’s bar. Attempts to overturn state bar disciplinary decisions
13 present “a straightforward application of the Rooker-Feldman doctrine.”
14 Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 607 & n.4 (9th Cir.
15 2005).
16 In establishing a system of Article III courts across the country, Congress
17 expressly reserved the power to review the decisions of state courts to the United
18 States Supreme Court, not to federal district courts or the Court of Appeals. 28
19 U.S.C. §§ 1257, 1291, 1331. This limitation on the federal court’s power is known
20 as the Rooker-Feldman doctrine, named after Rooker v. Fidelity Trust Co., 263
21 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S.
22 462 (1983).
23 Issues concerning attorney admission and discipline fall squarely within the
24 Rooker-Feldman doctrine. Decades before Feldman (an attorney admissions case),
25 1
The Eleventh Amendment also bars these claims. See Hirsh v. Justices of
26 the Sup. Ct. of Cal. et al., 67 F.3d 708, 715 (9th Cir. 1995); see also Lupert
v. Cal. State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985). In addition, Fine’s
27
challenge is barred by the res judicata effect of the underlying Supreme
28 Court order disbarring him. In re Rose, 22 Cal. 4th at 448.
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1 the Ninth Circuit held that district courts have no jurisdiction over bar membership
2 or discipline decisions:
3 [O]rders of a state court relating to the admission,
discipline, and disbarment of members of its bar may be
4 reviewed only by the Supreme Court of the United States
on certiorari to the state court, and not by means of an
5 original action in a lower federal court. The rule serves
substantial policy interests arising from the historic
6 relationship between state judicial systems and the
members of their respective bars, and between the state
7 and federal judicial systems.
8 McKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969) (dismissing for lack of
9 jurisdiction action seeking to enjoin and declare invalid order suspending attorney
10 from the practice of law for one year).2 This reasoning was quoted with approval
11 by the Supreme Court in Feldman which, as discussed above, was an attorney-
12 admission case. Feldman, 460 U.S. at 482 n.16. The Supreme Court also
13 emphasized that “it is important to note in the context of this case the strength of
14 the state interest in regulating the state bar. ‘[T]he interest of the States in
15 regulating lawyers is especially great since lawyers are essential to the primary
16 governmental function of administering justice, and have historically been ‘officers
17 of the courts.’’” Id. (citation omitted).
18 In the two decades since Feldman, the Ninth Circuit has reaffirmed the
19 district court’s lack of jurisdiction to review state bar decisions in five separate
20 published decisions. In Tofano v. Supreme Court of Nevada, 718 F.2d 313 (9th
21 Cir. 1983), the Ninth Circuit affirmed the general constitutionality of Nevada’s
22 essay bar examination, and held that the district court lacked subject matter
23
2
24 See also Doe v. State Bar of California, 415 F. Supp. 308, 311-12 (N.D. Cal.
1976) (“Because federal courts do not have jurisdiction to interfere with
25
disciplinary proceedings of the State Bar of California, this case will be
26 dismissed and judgment entered in favor of defendants”), aff’d 582 F.2d 25,
26 (9th Cir. 1978) (“the trial judge correctly concluded that the federal
27
courts do not have jurisdiction to interfere with disciplinary proceedings of
28 the State Bar of California…”).
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1 jurisdiction to review plaintiff’s claim that his exam was unconstitutionally graded.
2 Id. at 314-15. In Rosenthal v. Justices of the Supreme Court of California, 910
3 F.2d 561 (9th Cir. 1990), the Ninth Circuit held that the California State Bar’s
4 disbarment proceedings were constitutionally adequate in general, and that any
5 challenge to the fairness of the disbarment in Rosenthal’s particular case was
6 beyond the district court’s jurisdiction. Id. at 566 (citing Feldman). In Partington
7 v. Gedan, 961 F.2d 852 (9th Cir. 1992), the Court held in relevant part that the
8 district court had no jurisdiction to review a disciplinary fine assessed against a
9 Hawaii attorney by the Hawaii Supreme Court. Id. at 864-65 (“Partington’s
10 request thus collides head-on with the jurisdictional bar of Rooker-Feldman
11 doctrine.”). In Craig v. State Bar of California, 141 F.3d 1353 (9th Cir. 1998), the
12 Ninth Circuit again held that it lacked jurisdiction to evaluate the denial of
13 admission to the bar. “Under California law, only the state supreme court, not the
14 Committee, has the authority to grant or deny admission to the bar. . . . Orders of a
15 state court relating to the admission of an individual to the state bar may be
16 reviewed only by the United States Supreme Court on writ of certiorari to the state
17 court, and not by means of an original action in a lower federal court.” Id. at 1354
18 (refusing to analyze claim that California’s oath requirement violated Craig’s
19 religious beliefs). This Court rejected Craig’s assertion that his claim was
20 “general” – “[t]hese allegations are specific to Craig’s application for a waiver or
21 modification of the oath requirement, and do not constitute a general attack on the
22 oath itself.” Id.
23 Finally, in Mothershed, 410 F.3d 602, the Ninth Circuit reaffirmed that
24 under Rooker-Feldman district courts lack subject matter jurisdiction to review the
25 Oklahoma bar’s disciplinary proceedings against attorney Mothershed. Id. at 606-
26 08.
27 Ninth Circuit law has thus clearly and consistently held for decades that the
28 district courts have no subject matter jurisdiction to review the application of the
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1 State Bar’s admission or discipline rules to particular attorneys or would-be

2 attorneys.
3 Fine’s complaint falls squarely within the Rooker-Feldman doctrine; he
4 directly asks the Court to “void and annul” the disbarment orders entered against
5 him. He does so despite the decades of law discussed above and the U.S. Supreme
6 Court’s denial of Fine’s own petition for writ of certiorari after he was disbarred.
7 Fine, 130 S. Ct. 172.
8 Fine appears to be attempting to plead around Rooker-Feldman by insisting
9 that his disbarment was procured by “extrinsic fraud.” In Kougasian v. TMSL,
10 Inc., 359 F.3d 1136 (9th Cir. 2004), the Ninth Circuit recognized a narrow
11 exception to Rooker-Feldman where the plaintiff does not claim that the state court
12 erred, but rather that the defendants engaged in extrinsic fraud, i.e. “conduct which
13 prevents a party from presenting his claim in court.” Kougasian, 359 F.3d at 1140.
14 Kougasian involved a wrongful death action where the plaintiff was re-litigating
15 claims she lost in state court, and alleged that the defendant had committed
16 extrinsic fraud in the state proceedings by submitting a false declaration while
17 preventing her from locating the declarant to question him.
18 Any Kougasian argument fails for two reasons here. First, neither
19 Kougasian nor any of its progeny suggest that a federal district court can directly
20 overturn a State Supreme Court disbarment order despite decades of law to the
21 contrary. Such a ruling would represent a dramatic infringement of the California
22 Supreme Court’s plenary control over membership in the California bar.
23 Second, Fine does not actually allege any “extrinsic” fraud. As his
24 complaint clearly shows, the allegations of so-called “fraud” are nothing more than
25 his insistence that the claims against him were false. He repeatedly alleges that
26 “extrinsic fraud” occurred because the State Bar “knew” the charges against him
27 were “false and a sham.” (Complaint ¶¶ 82-116.) The Complaint does not allege
28 any facts that would show that Fine was “prevent[ed] from presenting his claim in
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1 court.” Kougasian, 359 F.3d at 1140; In re Intermagnetics America, Inc., 926 F.2d
2 912, 916 (9th Cir. 1991) (“Extrinsic fraud occurs ‘where a party is prevented by
3 trick, artifice or other fraudulent conduct from fairly presenting his claim or
4 defenses or introducing relevant and material evidence.’”); County of Orange v.
5 Superior Court, 155 Cal. App. 4th 1253, 1261 (2007) (“Extrinsic fraud occurs
6 when a party is deprived of the opportunity to present his claim or defense to the
7 court; where he was kept ignorant or, other than from his own negligence,
8 fraudulently prevented from fully participating in the proceeding.”).
9 Nor does Fine allege any injury other than the Supreme Court’s disbarment
10 decision. Compare Kougasian, 359 F.3d at 1141. Indeed, any assertion that the
11 disciplinary claims brought against Fine was meritless was necessarily rejected by
12 the California Supreme Court when it disbarred him. Reusser v. Wachovia Bank,
13 525 F.3d 855, 860 (9th Cir. 2008).
14 Kougasian does not authorize this Court to review the California Supreme
15 Court’s disbarment of Fine simply because Fine claims the prosecutors “knew” he
16 did not commit the ethical violations he was found to have committed. See O’Neil
17 v. State Bar of Montana, 2009 WL 3075355 (D. Mont. June 19, 2009). Because
18 the Court has no jurisdiction to review Fine’s disbarment proceedings it cannot
19 enter default against the State Bar defendants.
20 The Court can, however, sua sponte dismiss this action for lack of subject
21 matter jurisdiction. Scholastic Entertainment, Inc. v. Fox Entertainment Group,
22 Inc., 336 F.3d 982, 985 (9th Cir. 2003) (“While a party is entitled to notice and an
23 opportunity to respond when a court contemplates dismissing a claim on the
24 merits, [citations] it is not so when the dismissal is for lack of subject matter
25 jurisdiction.”). Absent such a sua sponte dismissal, the State Bar Defendants
26 respectfully request that the Court grant them permission to re-file a properly
27 supported motion to dismiss.
28
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1 IV. CONCLUSION
2 For the foregoing reasons, the State Bar Defendants respectfully request the
3 Court to sua sponte dismiss this action for lack of subject matter jurisdiction or,
4 alternatively, discharge the Order to Show cause and allow the State Bar
5 Defendants to file a properly supported motion to dismiss the complaint.
6 DATED: April 20, 2010 Respectfully submitted,
7
KERR & WAGSTAFFE LLP
8

9
By_/s Michael von Loewenfeldt__________
10 Michael von Loewenfeldt
11
Attorneys for State Bar Defendants
12 STATE BAR OF CALIFORNIA, BOARD OF
GOVERNORS OF THE STATE BAR OF
13 CALIFORNIA, and SCOTT DREXEL

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