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1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

BERNARD JOSEPH ROSA, JR.,

NO. CIV. S-04-945 WBS PAN

Plaintiff,

v. MEMORANDUM AND ORDER

RE: PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT AND

DEFENDANTS’ MOTION TO DISMISS

STATE OF CALIFORNIA,

CALIFORNIA BOARD OF

ACCOUNTANCY, CAROL SIGMANN,

GREGORY P. NEWINGTON, LAWRENCE

KNAPP, BILL LOCKYER, JOEL

PRIME, RONALD DEIDRICH,

MICHAEL R. GRANEN, and STEPHEN

J. SMITH,

Defendants.

----oo0oo---- 

Plaintiff, a pro se litigant, brings claims against the

State of California; the California Board of Accountancy (“CBA”);

Carol Sigmann, Gregory P. Newington, and Lawrence Knapp as

individuals and as agents and employees of the CBA; Bill Lockyer

as Attorney General of California; Stephen J. Smith as 

Administrative Law Judge; and Joel Prime, Ronald Deidrich, and

Michael R. Granen as individuals and as agents and employees of

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1 Unless otherwise noted, all facts in this section are

taken from plaintiff’s First Amended Complaint.

2

the California Attorney General. Plaintiff alleges violations of

42 U.S.C. §§ 1983, 1985, and 1986; violations of the California

Constitution; California Government Code § 1222; California

Business and Professions Code § 6068; California Civil Code §

52.1; intentional infliction of emotional distress; negligent

infliction of emotional distress; and defamation. He also asks

for reinstatement of his Certified Public Accountant (“CPA”)

license, general damages in the amount of $2,000,000, punitive

damages against each defendant in the amount of $1,500,000, costs

of suit, and attorneys’ fees.

Jurisdiction is predicated upon 28 U.S.C. §§ 1331

(federal question) and 1367 (supplemental jurisdiction). 

Plaintiff moves for summary judgment on all of his claims

pursuant to Federal Rule of Civil Procedure 56. Defendants move

to dismiss all plaintiff’s claims pursuant to Federal Rule of

Civil Procedure 12(b)(6).

I. Factual and Procedural Background1

Plaintiff received his CPA certificate in 1969. (First

Am. Compl. ¶ 7). In 1974, after working for several different

employers, he became a sole practitioner providing professional

accounting services. Around 1983, plaintiff developed what he

refers to as a “tax strategy” to reduce and in some cases

eliminate the self-employment tax. One of plaintiff’s former

clients complained to the CBA, and the CBA commenced an action

against the plaintiff. (Id. ¶ 7).

After the CBA commenced action against plaintiff, the

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2 With the exception of Joel Primes, plaintiff does not

explain the individual involvement of any of the named defendants

in his complaint. He refers only to “defendant” and “defendants”

without explaining to which defendant or defendants he is

referring.

3

Attorney General’s Office and the CBA began negotiations designed

to settle the action. (Id. ¶ 8). Sometime in November 1993,

plaintiff orally agreed to a stipulation presented by defendant

Joel Primes, Supervising Deputy Attorney General. (Id. at 19

n.iv). The exact provisions of the stipulation are not explained

by plaintiff. In December 1993, plaintiff reassessed his

decision and refused to agree to the stipulation unless any and

all references to “fraud, dishonesty, and gross negligence” were

removed. (Id.) Plaintiff alleges that defendant Primes agreed

to make the changes if plaintiff signed a blank signature page

which Primes would later attach to the modified stipulation. 

When plaintiff expressed his reluctance to sign a blank signature

page, Primes allegedly threatened to withdraw the offer to settle

the case. (Id. ¶ 11). Plaintiff relented, signed the signature

page, and faxed it to Primes. (Id. ¶ 8).

In April 1994, plaintiff received the modified

stipulation with his attached signature. (Id. ¶ 12). He alleges

that he assumed all the terms were correct, and did not become

aware that the agreed-upon changes had not been made until he

reviewed the stipulation sometime around November 1994. (Id. ¶¶

9, 13). Plaintiff alleges that one of the defendants told him

the matter would be resolved at a probation hearing.2 At this

probation hearing, plaintiff alleges that the judge “refused” to

hear plaintiff’s attempts to explain the situation with the

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3 The court assumes for the purposes of these motions

that the judge referred to in the complaint is defendant Stephen

J. Smith, the Administrative Law Judge named in plaintiff’s

complaint.

4

stipulation.3 (Id. ¶ 15). In December 1995, plaintiff’s CPA

certificate was revoked. (Id. ¶ 16).

It appears that approximately four years passed before

plaintiff decided to petition the CBA for reinstatement of his

license. (See id. ¶¶ 16-19). In October 1999, this petition was

denied by the CBA, which allegedly still relied at least in part

on the disputed stipulation. The CBA allegedly stated that it

was too late for any action and that plaintiff had not provided

adequate proof of rehabilitation. (Id. ¶ 19). Plaintiff’s

petition for reinstatement was again denied in March of 2001,

July of 2002, sometime in 2003, and March of 2004. All of these

denials were allegedly for the same reasons. (Id. ¶¶ 20-22).

On May 10, 2004, plaintiff filed a complaint and

initiated the present lawsuit. The matter was referred to United

States Magistrate Judge Peter A. Nowinski pursuant to 28 U.S.C.

§§ 636, et seq., and Local Rule 72-302. Defendants responded to

plaintiff’s complaint on June 14, 2004 with a motion to dismiss,

and an amended motion to dismiss on June 21, 2004. Plaintiff

filed a first amended complaint (“FAC”) on July 14, 2004,

rendering the motion to dismiss moot. Without filing an answer,

defendants renewed their motion to dismiss on August 9, 2004, and

then filed an amended motion on August 10, 2004. On April 14,

2005, plaintiff filed a motion for summary judgment. 

The magistrate judge issued findings and

recommendations recommending that defendants’ motion to dismiss

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4 Plaintiff objects to defendants’ response to his

objections to the magistrate judge’s findings and recommendations

as untimely. (See Pl.’s Objections to Defs.’ Untimely Response

to Objections to Magistrate Judge’s Findings & Recommendations at

1-2). However, this objection is moot because the court need not

rely on any of the arguments in the defendants’ response to

decide the motions before it, which it reviews de novo. 

5

be granted and that plaintiff’s motion for summary judgment be

denied. (June 6, 2005 Magistrate Judge’s Findings and

Recommendations). On June 15, 2005, plaintiff filed objections

to the findings and recommendations. On June 28, 2005,

defendants filed a response to plaintiff’s objections to the

findings and recommendations. The court reviews both plaintiff’s

motion for summary judgment and defendants’ motion to dismiss de

novo. See 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b); Local

Rule 72-304.4 

II. Discussion

A. Plaintiff’s Motion for Summary Judgment

The court must grant summary judgment to a moving party

“if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). The party adverse to a motion for summary

judgment may not simply deny generally the pleadings of the

movant; the adverse party must designate “specific facts showing

that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e);

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Simply put, “a

summary judgment motion cannot be defeated by relying solely on

conclusory allegations unsupported by factual data.” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989). The nonmoving party

must show more than a mere “metaphysical doubt” as to the

material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 587 (1986). 

Plaintiff essentially makes two arguments: First,

defendants’ motion to dismiss was untimely. Plaintiff does not

explain why summary judgment would be warranted if defendants’

motion were untimely. Presumably, the argument would be that the

court should disregard the untimely motion and grant a default

judgment against all defendants for failure to respond to

defendant’s FAC. Second, plaintiff argues that because

defendants’ motion to dismiss fails to deny any of the

allegations in plaintiff’s FAC, the court should deem defendants

to have admitted all the allegations in plaintiff’s FAC, and

enter judgment in plaintiff’s favor as a matter of law.

i. The Motion to Dismiss Was Not Untimely

Plaintiff argues, without citing any order or

authority, that defendant’s response to his first amended

complaint was due “on or before July 22, 2004,” which was ten

(10) days after the filing of the amended complaint. Were this

true, it would be strange indeed, since the Ninth Circuit has

explicitly held that “a motion under Federal Rule of Civil

Procedure 12(b) [may be filed] any time before the responsive

pleading is filed.” Aetna Life Ins. Co. v. Alla Med. Servs.,

Inc., 855 F.2d 1470, 1474 (9th Cir. 1988)(emphasis added). In

reversing the district court that found a Rule 12(b)(6) motion to

be untimely, the Aetna court held that because “[t]he [Rule]

12(b)(6) motion to dismiss was filed . . . before an answer to

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the complaint,” the motion was timely, and the district court had

erred in ruling otherwise. Id. Here, the motion to dismiss was

filed before the filing of any answer. Thus, as a matter of law,

the motion to dismiss was timely.

ii. It Would Be Improper to Deem Plaintiffs’

Allegations Admitted by Defendants

Plaintiff argues that since defendants have not filed

an answer, they have not denied any of the allegations in his

complaint, and that defendants must therefore be deemed to have

admitted all the allegations in plaintiff’s FAC. This is not the

law. In fact, other district courts in this circuit have denied

motions for summary judgment in nearly identical situations. In

Batdorf v. Trans Union, a pro se plaintiff moved for summary

judgment on three causes of action after the defendant filed a

motion to dismiss on the other causes of action in the complaint,

contending that the defendant had admitted the allegations of

his complaint relating to the claims he did not move to dismiss

by failing to file an answer. 2000 U.S. Dist. LEXIS 6796, at

*11-12 (N.D. Cal. May 16, 2000). The district court denied the

motion, stating that the filing of a motion to dismiss enlarges

the time for a defendant to respond to the entire complaint,

including the causes of action it did not move to dismiss. Id.

at 12. Likewise, in Terry v. Internal Revenue Service, another

district court denied a similar “motion for default judgment or

in the alternative motion for summary judgment” brought by a

plaintiff, finding that because the defendants filed a motion to

dismiss pursuant to Rule 12(b), they were not yet required to

file an answer. 1997 U.S. Dist. LEXIS 17025, at *6-7 (D. Az.

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Sept. 30, 1997). The reasoning of these cases is persuasive. 

Therefore, the court follows its sister courts and denies

plaintiff’s motion for summary judgment. 

B. Defendants’ Motion to Dismiss

Defendants move to dismiss under Federal Rule of Civil

Procedure 12(b)(6), arguing that plaintiff can prove no set of

facts which would entitle him to relief. In ruling on such a

motion, the court must assume all of plaintiff’s allegations are

true and construe the complaint in the light most favorable to

plaintiff. United States v. City of Redwood City, 640 F.2d 963,

966 (9th Cir. 1981). However, the court need not assume the

truth of legal conclusions cast in the form of factual

allegations. Western Mining Council v. Watt, 643 F.2d 618, 624

(9th Cir. 1981). Defendants base their motion on several

arguments and authorities, many of which they contend

independently warrant dismissal.

i. The Younger Abstention Doctrine Forbids the Court

From Interfering in State Administrative

Proceedings

Plaintiff seeks, among other things, reinstatement of

his CPA license. The administrative proceeding for seeking

reinstatement is, however, judicial in nature. It involves a

hearing before a state administrative law judge, and at such

hearing, plaintiff is required to show rehabilitation sufficient

to warrant reinstatement of his CPA license. Should plaintiff be

dissatisfied with the results of these state administrative

remedies, he can seek relief in state court by way of a petition

for writ of mandate. Cal. Civ. Proc. Code § 1094.5.

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The nature of the proceeding is important because the

Younger abstention doctrine states that except in exceptional and

extremely limited circumstances, a federal court must not

intervene by way of injunction or declaration in a state criminal

proceeding or administrative proceeding that is judicial in

nature. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc.,

477 U.S. 619, 626 (1986); Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 432-34 (1982); Younger v. Harris,

401 U.S. 37, 56 (1971); cf. Geiger v. Jenkins, 401 U.S. 985

(1971)(summarily affirming district court which dismissed claims

under 42 U.S.C. §§ 1983, 1985, and 1988 to abstain from

interfering with medical license revocation proceedings). The

policy underlying this doctrine has been described as:

[A] proper respect for state functions, a recognition of the

fact that the entire country is made up of a Union of

separate state governments, and a continuance of the belief

that the National Government will fare best if the States

and their institutions are left free to perform their

separate functions in their separate ways.

Middlesex, 457 U.S. at 431 (citing Younger, 401 U.S. at 44).

Because the proceeding for reinstatement of plaintiff’s

CPA license is judicial in nature, and generally to be obtained

from the state, the Younger abstention doctrine and its

underlying policies of respect for state authority over state

matters militate against entertaining plaintiff’s request for

reinstatement of his CPA license. Therefore, the court will

abstain from reaching this issue. 

///

///

///

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ii. Eleventh Amendment Immunity Bars Plaintiff’s

Federal Claims Against the State of California and

the CBA

States and state agencies are immune from suit in

federal court by virtue of the Eleventh Amendment to the United

States Constitution. Seminole Tribe of Fla v. Florida, 517 U.S.

44, 53 (1996); Belanger v. Mader Unified Sch. Dist., 963 F.2d

248, 250 (9th Cir. 1992)(holding that Eleventh Amendment immunity

extended to school district as state agency). The type of relief

sought is irrelevant, as the Eleventh Amendment does not exist

solely to prevent federal court judgments that must be paid out

of a state’s treasury, but to prevent the indignity of subjecting

a State to the judicial process at the behest of a private

individual. Seminole, 517 U.S. at 58. This immunity can be

abrogated, but only where Congress has acted with clear and

unequivocal intent to abrogate the immunity, and where Congress

acted pursuant to a valid exercise of its power. Id. at 55.

There is no “clear and unequivocal” language in 42

U.S.C. §§ 1983, 1985, or 1986 to abrogate Eleventh Amendment

immunity. See also Quern v. Jordan, 440 U.S. 332, 341 (1979)(“§

1983 does not abrogate the State’s Eleventh Amendment

immunity.”). Therefore, the State of California and the CBA, as

an agency of the State of California, are both immune from suit. 

See Carberry v. State Bd. of Accountancy, 28 Cal. App. 4th 770,

772 (1994)(defining California Board of Accountancy as “the state

agency empowered to license certified public accountants”)

(emphasis added). Accordingly, all of plaintiff’s claims against

defendants the State of California and the California Board of

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Accountancy are barred by the Eleventh Amendment.

iii. Plaintiff’s Federal Claims Against the Attorney

General and His Employees are Time-Barred

To the extent that Eleventh Amendment immunity does not

bar plaintiff’s claims brought against the Attorney General and

his employees in their individual capacities, such claims are

time-barred. Federal courts turn to state law on personal injury

claims for statutes of limitations in actions brought under 42

U.S.C. §§ 1983 and 1985. Burnett v. Grattan, 468 U.S. 42, 48-49

(1984); see also Wilson v. Garcia, 471 U.S. 261, 266-67

(1985)(applying state personal injury statute of limitations to

action filed under § 1983). Prior to 2002, the statute of

limitations on personal injury actions in California was one (1)

year. Cal. Civ. Proc. Code § 340(c)(2001). Since all of the

allegations regarding plaintiff’s claims against these defendants

under §§ 1983 and 1985 refer to actions taken before 2002,

California’s previous one-year statute of limitations applies to

them. Plaintiff’s claims under § 1986 have an explicit one (1)

year statute of limitations. 42 U.S.C. § 1986 (“But no action

under the provisions of this section shall be sustained which is

not commenced within one year after the cause of action has

accrued.”). 

According to plaintiff’s complaint, the

misrepresentations and misdeeds by defendant Primes and other

members of the Attorney General’s office occurred in 1994 and

earlier. (Compl. ¶¶ 8-12, id. at 19 n.iv). There are no factual

allegations implicating anyone from the Attorney General’s office

after 1994. Nor does plaintiff argue or present any facts to

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suggest that the statute of limitations was tolled. Further, it

appears from plaintiff’s complaint that since the stipulation was

issued in 1994, plaintiff has been dealing solely with the CBA in

his attempts to get his CPA license reinstated. Thus, all of

plaintiff’s federal claims against defendants Lockyer, Primes,

Diedrich, Granen, and Werner are barred by the relevant statutes

of limitations, whether such claims are brought against them in

their official or individual capacities.

iv. Plaintiff’s Claims Against Agents of the CBA and

the Attorney General are also Barred by

Prosecutorial Immunity

Although the Eleventh Amendment does not protect the

Attorney General, his agents, and the agents of the CBA to the

extent they are sued in their individual capacities,

prosecutorial immunity does. Kleinman v. Multnomah Cty., 2004

U.S. Dist. LEXIS 21466, at *16-17 (D. Or. Oct. 15, 2004)(citing

Imbler v. Pachtman, 424 U.S. 409, 419 (1976)). “Absolute

immunity extends to agency officials when they preside over

hearings, initiate agency adjudication, or otherwise perform

functions analogous to judges and prosecutors.” Romano v. Bible,

169 F.3d 1182, 1186 (9th Cir. 1999)(citing Butz v. Economou, 438

U.S. 478, 514-15 (1978)). Intent and motivation is relevant to

qualified immunity, but irrelevant to absolute immunity; absolute

immunity defeats a suit regardless of the underlying intent as

long as the actions were closely associated with the judicial

process. Imbler, 424 U.S. at 419; Romano, 169 F.3d at 1186. 

“Prosecutorial immunity extends to the process of plea bargaining

as an integral part of the judicial process.” Briley v. State of

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California, 564 F.2d 849, 856 (9th Cir. 1977). Additionally, the

Supreme Court looks to the “nature of the function performed, not

the identity of the actor who performed it.” Romano, 169 F.3d at

1186 (emphasis added); see also Hirsh, 67 F.3d at 715(holding

that California Attorney General was entitled to absolute

immunity for his limited role in State Bar disciplinary system).

The hearings before the CBA and an administrative law

judge are, at a minimum, quasi-judicial. The actions taken by

the CBA and its agents and employees in revoking plaintiff’s

license, and later denying his application for reinstatement,

were closely associated with this process. “[A]gency officials

performing certain functions analogous to those of a prosecutor

should be able to claim absolute immunity with respect to such

acts.” Butz, 438 U.S. at 515. Since these defendants were

behaving as prosecutors in an adjudicative process, plaintiffs’

claims against defendants Sigmann, Newington, and Knapp are

barred by prosecutorial immunity. 

Further, all of the allegations of misconduct

plaintiffs makes against the agents and employees of the Attorney

General’s office involve actions undertaken in connection with

the prosecution of plaintiff and the eventual revocation of his

CPA license. The “stipulation” that plaintiff alleges was

fraudulent was essentially a plea bargain. Thus, even if

plaintiffs’ claims against the Attorney General and his employees

were not time-barred, they would be barred by prosecutorial

immunity, notwithstanding the capacity in which they were named

as defendants. See Briley, 564 F.2d at 856.

///

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v. Plaintiff’s Claim Against Administrative Law Judge

Smith is Barred by Absolute Judicial Immunity

It is well-established that judges and those performing

judge-like functions are absolutely immune from damage liability

for acts performed in their official capacities. Stump v.

Sparkman, 435 U.S. 349, 355-56 (1978); Ashelman v. Pope, 793 F.2d

1072, 1075 (9th Cir. 1986). This doctrine applies to

administrative law judges. Butz, 438 U.S. at 513-14. The

factual allegations involving defendant Smith concern only his

role as a judge in the administrative adjudicative process. 

Thus, plaintiff’s claims against defendant Smith are barred by

judicial immunity.

vi. Further Amendments Would Be Futile

Generally, leave to amend should be granted when a

motion to dismiss is granted. Schreiber Dist. Co. v. Serv-Well

Furniture Co., 806 F.2d 1393, 1401 (1986). However, if the court

determines that the allegation of other facts consistent with the

challenged pleading could not possibly cure the deficiency, the

court may dismiss without leave to amend. Id. Here, no other

facts that could be alleged consistent with plaintiff’s FAC would 

defeat defendants’ multiple immunities and the relevant statutes

of limitations. Therefore, the court will dismiss all of

plaintiff’s federal claims with prejudice.

C. Remaining State-Law Claims

The court has supplemental jurisdiction over

plaintiff’s state-law claims pursuant to 28 U.S.C. § 1367(a). 

Under 28 U.S.C. § 1367(c)(3), a district court may decline to

exercise supplemental jurisdiction over state-law claims where

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the court has dismissed all claims over which it has original

jurisdiction. Voigt v. Savell, 70 F.3d 1552, 1565 (9th Cir.

1995). “In the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine – judicial economy,

convenience, fairness, and comity - will point toward declining

to exercise jurisdiction over the remaining state-law claims.” 

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). 

The balance of factors generally indicates that a case belongs in

state court when the federal-law claims have dropped out of the

lawsuit in its early stages and only state-law claims remain. Id.

Here, plaintiff’s federal claims will all be dismissed

prior to trial. Because the court was able to decide plaintiff’s

federal claims without reaching the issues underlying plaintiff’s

state-law claims remaining in this case, the court will decline

to exercise supplemental jurisdiction over the state-law claims

pursuant to 28 U.S.C. § 1367(c)(3).

IT IS THEREFORE ORDERED that:

(1) plaintiff’s motion for summary judgment be, and the

same hereby is, DENIED;

(2) defendants’ motion to dismiss be, and the same 

hereby is, GRANTED;

(3) plaintiff’s claims under 42 U.S.C. §§ 1983, 1985, 

and 1986 be, and the same hereby are, DISMISSED WITH PREJUDICE;

and

(4) plaintiff’s state-law claims be, and the same 

///

///

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hereby are, DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). 

DATED: August 5, 2005

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