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BRUCE D. GOLDSTEIN #135970 

County Counsel 

JOSHUA A. MYERS #250988 

Deputy County Counsel 

County of Sonoma 

575 Administration Drive, Room 105A 

Santa Rosa, California 95403 

Telephone: (707) 565-2421 

Facsimile: (707) 565-2624 

E-mail: joshua.myers@sonoma-county.org

Attorneys for Defendants 

SONOMA COUNTY DEPARTMENT OF 

CHILD SUPPORT SERVICES; KIRK GORMAN; 

and KATHY SIMON 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

MARK ANDREWS, 

Plaintiff, 

vs. 

CALIFORNIA DEPARTMENT OF 

CONSUMER AFFAIRS, et al. 

Defendants. 

/

Case No. 17-cv-00252-WHO 

DEFENDANT SONOMA COUNTY 

DEPARTMENT OF CHILD SUPPORT 

SERVICES, KIRK GORMAN and 

KATHY SIMON’S NOTICE OF 

MOTION AND MOTION TO DISMISS 

FIRST AMENDED COMPLAINT; 

MEMORANDUM OF POINTS AND 

AUTHORITIES 

Date: July 19, 2017 

Time: 2:00 p.m. 

Courtroom: 2, 17th Floor 

Judge: Hon. William H. Orrick

TO PLAINTIFF MARK ANDREWS, IN PRO PER, AND TO ALL PARTIES 

AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE THAT on July 19, 2017, at 2:00 p.m., or as soon 

thereafter as the matter may be heard in Courtroom 2 of the above-entitled Court located 

at 450 Golden Gate Avenue, San Francisco, California, Defendants SONOMA COUNTY 

DEPARTMENT OF CHILD SUPPORT SERVICES, KIRK GORMAN, and KATHY 

SIMON (collectively “County Defendants”) will and hereby do move this Court for an 
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order granting dismissal of the First Amended Complaint filed on April 13, 2017, by 

Plaintiff Mark Andrews. 

This Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 

Rule 12(b)(1) & (6), for dismissal of the complaint is warranted based on the following 

separate and independent grounds: 

STATEMENT OF ISSUES 

(A) Whether either or both the Rooker-Feldman Doctrine and/or the Younger

Abstention Doctrine prohibit federal court jurisdiction over this lawsuit? 

(B) Whether the lawsuit is barred by the applicable statutes of limitations? 

(C) Whether the lawsuit are barred by the doctrine of res judicata or collateral 

estoppel? 

(D) Whether Defendant Gorman has absolute immunity from Plaintiff’s claims? 

(E) Whether Plaintiff pled sufficient facts to state a cause of action for Monell

liability against the Sonoma County Department of Child Support Services? 

 (F) Whether Plaintiff pled sufficient facts to state a cause of action against 

Defendant Simon. 

This Motion to Dismiss is based on the attached Memorandum of Points and 

Authorities in support thereof, the accompanying Request for Judicial Notice, the papers 

and pleadings on file herein, and on such further arguments or evidence as may be 

presented prior to adjudication of the motion. 

Dated: May 19, 2017 BRUCE D. GOLDSTEIN, County Counsel 

By: /s/ Joshua A. Myers 

Joshua A. Myers 

Deputy County Counsel 

Attorneys for Defendants 

SONOMA COUNTY DEPARTMENT 

OF CHILD SUPPORT SERVICES; 

KIRK GORMAN; KATHY SIMON 
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TABLE OF CONTENTS 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION ...................................................................................... 8 

II. STATEMENT OF THE CASE ...................................................................... 8 

III. FRCP 12 MOTION TO DISMISS STANDARDS ..................................... 10 

IV. LEGAL ANALYSIS ................................................................................... 11 

A. Federal Jurisdiction of Plaintiff’s FAC is Barred ............................ 11 

 1. The Rooker-Feldman Doctrine ............................................. 11 

2. Younger Abstention ............................................................... 12 

B. Statute of Limitations ....................................................................... 14 

C. Res Judicata and Collateral Estoppel ............................................... 15 

D. Defendant Gorman Has Absolute Immunity from Plaintiff’s Claims ..................................................................... 16 

E. FAC Fails to Allege Facts Sufficient to State a Cause 

of Action Against the County under Monell Liability ...................... 17 

F. FAC Fails to Allege Sufficient Facts to Support a Cognizable Legal Theory Against Defendant Kathy Simon ........... 19 

V. CONCLUSION ......................................................................................... 19 
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TABLE OF AUTHORITIES 

Cases

Allen v. McCurry

 449 U.S. 90 (1980) ...................................................................................... 15 

Amaral v. County of Los Angeles 

 U.S. Dist. Ct., Central Dist. of Cal., (2016 U.S. Dist. LEXIS 104421) ...... 13

Arpin v. Santa Clara Valley Transp. Agency 261 F.3d 912 (9th Cir. 2001) ........................................................................ 14 

Ashoff v. City of Ukiah

 130 F.3d 409 (9th Cir. 1997) ........................................................................ 10 

Ashcroft v. Iqbal 

 129 S.Ct. 1937 (2009) ................................................................................. 10 

Agustin v. Count of Alameda

 234 Fed.App’x 521 (9th Cir. 2007) .............................................................. 13 

Barren v. Harrington 

 152 F.3d 1193 (9th Cir. 1998) ....................................................................... 19 

Bell Atlantic v. Twombly 

 550 U.S. 544 (2007) .............................................................................. 10, 17 

Bender v. Williamsport Area School Dist. 475 U.S. 534 (1986) .................................................................................... 11 

Bianchi v. Rylaarsdam

 334 F.3d 895 (9th Cir. 2003) ........................................................................ 11 

Broughton v. Cutter Labs 

 622 F.2d 458 (9th Cir. 1980) ........................................................................ 11 

Busch v. Torres

 905 F.Supp. 766 (C.D. Cal. 1995) ............................................................... 11 

C.D. Anderson & Co., Inc. v. Lemos

 832 F.2d 1097 (9th Cir. 1987) ..................................................................... 15 

Chen-Cheng Wang ex rel. United States v. FMC Corp. 975 F.2d 1412 (9th Cir. 1992) ...................................................................... 11 

City of Canton v. Harris 489 U.S. 378 (1989) .................................................................................... 18 

Clark v. Yosemite Community College Dist. 785 F.2d 781 (9th Cir. 1986) ...................................................................... 15
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Coverdell v. Dept. of Social & Health Services

 834 F.2d 758 (9th Cir. 1987) ....................................................................... 16

D.C. Court of Appeals v. Feldman

 460 U.S. 462 (1983) ............................................................................. 11, 12 

Del Perico v. Thornsley 877 F.2d 785 (9th Cir. 1989) ........................................................................ 14 

Erdman v. Cochise County, Arizona

 926 F.2d 877 (9th Cir. 1991) ........................................................................ 18 

Fleming v. Travenol Laboratories, Inc. 707 F.2d 829 (5th Cir. 1983) ....................................................................... 15 

Fry v. Melaragno

 939 F.2d 832 (9th Cir. 1991) ...................................................................... 16 

Gibson v. United States

 781 F.2d 1334 (9th Cir. 1986) ...................................................................... 17 

Gilbertson v. Albright

 381 F.3d 965 (9th Cir. 2004) ........................................................................ 12 

Henrichs v. Valley View Dev. 

 474 F.3d 609 (9th Cir. 2007), cert.denied, 552 U.S. 1037 (2007) ................ 11 

International Evangelical Church v. Church of the Soldiers 54 F.3d 587 (9th Cir. 1995) ......................................................................... 15 

Johnson v. Riverside Healthcare Sys.

 534 F.3d 1116 (9th Cir. 2008) ....................................................................... 10 

Johnson v. State of Cal. 207 F.3d 650 (9th Cir. 2000) ........................................................................ 14 

Kokkonen v. Guardian Life Ins. Co. of America 

 511 U.S. 375, 114 S.Ct. 1673 (1994) .......................................................... 10 

Lee v. City of Los Angeles

 250 F.3d 668 (9th Cir. 2001) ........................................................................ 17 

Lopez v. Smith

 203 F.3d 1122 (9th Cir. 2000) ....................................................................... 11 

Lukovsky v. City and County of San Francisco

 535 F.3d 1044 (9th Cir. 2008) ...................................................................... 14 

Marsh v. County of San Diego

 680 F.3d 1148 (9th Cir. 2012) ....................................................................... 18 

McClain v. Apodaca 

 793 F.2d 1031 (9th Cir. 1986) ..................................................................... 15 

Migra v. Warren City School Dist. Bd. of Educ. 465 U.S. 75 (1984) ..................................................................................... 15 
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Monell v. Department of Soc. Servs.

 436 U.S. 658 (1978) .............................................................................. 17, 18 

Moore v. Sims

 442 U.S. 415; 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979) .............................. 13 

Noel v. Hall

 341 F.3d 1148 (9th Cir. 2003) ....................................................................... 12 

Noll v. Carlson

 809 F.2d 1446 (9th Cir. 1987) ..................................................................... 11 

Olson Farms, Inc., v. Barbosa 

 134 F.3d 933 (9th Cir. 1998) ........................................................................ 11 

Owens v. Okure 488 U.S. 235 (1989) .................................................................................... 14 

Readylink Healthcare, Inc., v. State Compensation Ins. Fund 754 F.3d 754 (9th Cir. 2014) ........................................................................ 12 

Reusser v. Wachovia

 525 F.3d 855 (9th Cir. 2008) ....................................................................... 11 

Rooker v. Fidelity Trust Co.

 263 U.S. 413 (1923) ................................................................................... 11 

Smith v. City of Chicago

 820 F.2d 916 (7th Cir. 1987) ....................................................................... 15 

Sprint Communs., Inc. v. Jacobs

 134 S. Ct. 584 (2013) .................................................................................. 12 

Trevino v. Gates

 99 F.3d 911 (9th Cir. 2008) ........................................................................... 18 

United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.

 971 F.2d 244 (9th Cir. 1992) ....................................................................... 11 

Usher v. City of Los Angeles 828 F.2d 556 (9th Cir. 1987) ........................................................................ 14 

Van Ort v. Estate of Stanewich

 92 F.3d 831 (9th Cir. 1996) .......................................................................... 18 

Von Saher v. Norton Simon Museum of Art at Pasadena 592 F.3d 954 (9th Cir. 2010) ........................................................................ 14 

Walden v. Wishengrad

 745 F.2d 149 (2d Cir. 1984) ........................................................................ 16 

Wallace v. Kato 549 U.S. 384 (2007) .................................................................................... 14 

Wilson v. Garcia

 471 U.S. 261 (1985) ................................................................................... 14 
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World Famous Drinking Emporium, Inc. v. City of Tempe 820 F.2d 1079 (9th Cir. 1987) ...................................................................... 13

Statutes

28 United States Code 

 Section 1738 ............................................................................................... 15 

42 United States Code 

 Section 1983 ............................................................................. 13, 14, 15, 17

California Code of Civil Procedure 

 Section 340(3) ............................................................................................. 14 

 Section 335.1 ............................................................................................... 14 

 Section 1085 ............................................................................................... 12

California Family Code 

 Section 17450 .............................................................................................. 17 

 Section 17520 ................................................................................................ 9 

 Section 17520(b) ........................................................................................... 8 

Rules 

Federal Rule of Civil Procedure 

 Rule 8(a) ............................................................................................... 10 

 Rule 12(b)(1) ............................................................................................... 10 

 Rule 12(b)(6) ................................................................................... 10, 17, 18 
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MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

 The First Amended Complaint (“FAC”) filed herein by Plaintiff Mark Andrews 

(“Plaintiff”) alleges that he was not afforded an “administrative hearing” as part of his 

state court child support enforcement action regarding certain California state issued 

licenses that were suspended as a result of his failure to pay child support as ordered by 

the Superior Court of California, County of Sonoma, in February of 2014. 

This Court should dismiss Plaintiff’s claims against the County Defendants for 

several independent reasons: (1) the Rooker-Feldman doctrine bars federal court 

jurisdiction over this de facto appeal of a state court order; (2) the Younger Abstention 

Doctrine prohibits federal court jurisdiction over the on-going state court child support 

enforcement action; (3) the lawsuit was filed beyond the applicable statutes of limitation; 

(4) the claims in the lawsuit are barred by res judicata or collateral estoppel; (5) 

Defendant Gorman is immune from Plaintiff’s claims; (6) Plaintiff failed to adequately 

plead a cause of action for Monell liability against the Sonoma County Department of 

Child Support Services (“DCSS”); and (7) Plaintiff failed to plead sufficient facts to state 

a cause of action against Defendant Simon. County Defendants request that the Court 

dismiss this lawsuit with prejudice as Plaintiff cannot cure the many defects in his First 

Amended Complaint with another amendment. 

II. STATEMENT OF THE CASE 

Regarding the heart of Plaintiff’s complaint, DCSS does not have the authority or 

ability to suspend a California state issued license – the type of license Plaintiff 

complains was suspended without due process. Instead, a local county child support 

agency such as DCSS only transmits limited information to the State of California that 

consists of a list of individuals who have been found by a court to have not paid their 

court ordered child support. (Cal. Family Code § 17520(b).) Then, it is up to the 

California agencies to take some action on the license. In other words, DCSS does not 
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suspend any State issued licenses. It could not afford Plaintiff the due process he claims 

he was denied. 

 Regarding the allegations in his FAC, Plaintiff admits that he was a participant in 

the state court proceedings regarding his child support obligation – Andrews v. Andrews, 

Superior Court of California, County of Sonoma, case No. SFL-15804. (See also, County 

Defendants’ Request for Judicial Notice [“RJN”], Exhibits 1 & 2, filed concurrently 

herewith.) Plaintiff admits that he was held in contempt for failing to comply with a 

court order to pay child support. (See Dkt. #8, FAC, ¶ 20.) 

 Plaintiff alleges that he received a notice dated May 19, 2013, from Defendant 

California Bureau of Automotive Repair stating his license would be suspended effective 

June 23, 2013 pursuant to Family Code section 17520 and a Department of Child Support 

Services Order. (Id., ¶ 17.) 

Plaintiff alleges that he received a notice dated June 14, 2013, from Defendant 

California Department of Motor Vehicles that his driver’s license would be suspended 

effective July 14, 2013 pursuant to Family Code section 17520 and a Department of 

Child Support Services notice. (Id., ¶ 17.) 

Plaintiff alleges DCSS refused Plaintiff’s request that they file an appeal with an 

“Office of Administrative Hearings.” (Id., ¶ 20.) On September 18, 2013, Plaintiff 

alleges he requested an administrative hearing from the judge presiding over the State 

Court matter but she refused. (Id., ¶ 21.) 

Plaintiff claims that “No appeal hearing is held” regarding the suspension of his 

licenses by either Defendant California Bureau of Automotive Repair or Defendant 

California Department of Motor Vehicles. (Id., ¶ 20, 22.) However, during the time 

period between June 2013 and February 2014, Plaintiff appeared in court multiple times 

represented by counsel. (Id., ¶ 25.) 

 Finally, Plaintiff admits that on February 19, 2014, pursuant to the advice of his 

attorney, he pled guilty to the charges in the child support action “to get his licenses 
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back.” (Id., ¶ 27; see also RJN, Exhibit 2.) Plaintiff claims his licenses were not 

reinstated by the California state agencies for two weeks, or March 3, 2014. (Id., ¶ 28.) 

Plaintiff apparently did not appeal this aspect of the child support enforcement 

case to the California appellate courts. 

III. FRCP 12 MOTION TO DISMISS STANDARDS 

 Federal Rule of Civil Procedure 8(a) requires that a complaint filed in federal 

court contain “a short and plain statement” of the grounds for the court’s jurisdiction and 

the claims for relief. (Fed. R. Civ. Proc. 8(a).) 

 A claim for relief may be dismissed under Federal Rule of Civil Procedure 

12(b)(1) for lack of subject-matter jurisdiction. (Fed. R. Civ. Proc. 12(b)(1) (“Rule 

12(b)(1)”).) A plaintiff bears the burden of establishing subject matter jurisdiction; in 

effect, the court presumes lack of jurisdiction until plaintiff proves otherwise. (Kokkonen 

v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 1675 (1994).) 

Pursuant to Rule 12(b)(1), a complaint should be dismissed if the plaintiff has failed to 

satisfy this burden. (Ashoff v. City of Ukiah, 130 F.3d 409, 410 (9th Cir. 1997).) 

A claim for relief may also be dismissed under Federal Rule of Civil Procedure 

12(b)(6) for a “failure to state a claim upon which relief can be granted.” (Fed. R. Civ. 

Proc. 12(b)(6) (“Rule 12(b)(6)”).) A request for dismissal under Rule 12(b)(6) may be 

based on the lack of a cognizable legal theory, or the absence of sufficient facts alleged 

under a cognizable legal theory. (Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 

1121 (9th Cir. 2008).) To withstand a Rule 12(b)(6) motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a claim for relief that is 

plausible on its face. (Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).) Bare assertions 

which amount to “nothing more than a formulaic recitation of the elements” of a claim 

for relief are conclusory and not entitled to be assumed true. (Iqbal, 129 S. Ct. at p. 1951, 

quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).) 

When considering a motion to dismiss, the Court may consider undisputed matters 

of public record through a request for judicial notice, including state court records. 
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(United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 

248 (9th Cir. 1992); Busch v. Torres, 905 F.Supp. 766, 769, fn. 1 and 2 (C.D. Cal. 1995).) 

Leave to amend should only be denied is it is clear that the deficiencies in the 

complaint cannot be cured by amendment. (See Lopez v. Smith, 203 F.3d 1122, 1130 (9th

Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. 

Cutter Labs, 622 F.2d 458, 460 (9th Cir. 1980).) 

IV. LEGAL ANALYSIS 

A. Federal Jurisdiction of Plaintiff’s FAC is Barred 

Federal courts are courts of limited jurisdiction. (See Bender v. Williamsport Area 

School Dist., 475 U.S. 534, 541 (1986).) They lack subject matter jurisdiction and must 

dismiss a claim if they are not given the power to consider the claim under the United 

States Constitution or a federal statute. (See Chen-Cheng Wang ex rel. United States v. 

FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992).) 

 1. The Rooker-Feldman Doctrine 

The Rooker-Feldman doctrine takes its name from two Supreme Court decisions 

explaining the “jurisdictional rule prohibiting federal courts from exercising appellate 

review over final state court judgments.” (Reusser v. Wachovia, 525 F.3d 855, 859 (9th

Cir. 2008); see also D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. 

Fidelity Trust Co., 263 U.S. 413 (1923); Olson Farms, Inc., v. Barbosa, 134 F.3d 933, 

937 (9th Cir. 1998) (Rooker-Feldman doctrine is a jurisdictional bar).) At its core, the 

Rooker-Feldman doctrine stands for the proposition that a case must be dismissed “when 

a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state 

court, and seeks relief from a state court judgment based on that decision.” (Reusser, 525 

F.3d at 859, quoting Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007), 

cert.denied, 552 U.S. 1037 (2007).) This is true “regardless of whether the state-court 

proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate [his] 

claims.” (Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003) (quotation omitted).) 
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Additionally, the doctrine prohibits federal court jurisdiction to issues that are 

“inextricably intertwined” with the state court action. (Noel v. Hall, 341 F.3d 1148, 1157-

58 (9th Cir. 2003); see also Feldman, supra, 460 U.S. at 483-484 n.16.) 

 Here, Plaintiff claims he requested that the County Defendants and the Superior 

Court of California, County of Sonoma, afford him an “administrative hearing” regarding 

the suspension of his state issued licenses as a part of his child support enforcement 

proceedings in California State Court. Plaintiff claims their failure to do so violated his 

constitutional right to due process. 

Further, Plaintiff claims California Family Code sections required such a hearing 

in the child support action. (See FAC, ¶¶ 21, 29, 30.) As such, Plaintiff could have 

requested relief from the California Court of Appeals through an extraordinary writ such 

as a writ of mandate. (Cal. Code of Civ. Pro., § 1085, et seq.) However, Plaintiff does 

not allege he appealed the court’s determination that he was not entitled to an 

administrative hearing as part of his child support enforcement case. In fact, he likely 

would have been prohibited from doing so because he pled guilty to the contempt charges 

he was facing at that time. (See RJN, Exhibit 2.) In doing so, he waived his 

constitutional rights in connecting with that guilty plea. (Id.) 

 2. Younger Abstention 

Plaintiff’s state court child support enforcement action is still pending. (See RJN, 

Exhibit 1.) In civil cases, the Younger Abstention Doctrine is: “appropriate only when the 

state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement actions or involve 

a state’s interest in enforcing the orders and judgments of its courts, (3) implicate an 

important state interest, and (4) allow litigants to raise federal challenges.” (Readylink 

Healthcare, Inc., v. State Compensation Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) 

(citing Sprint Communs., Inc. v. Jacobs, 134 S. Ct. 584, 593-94 (2013).) “If these 

‘threshold elements’ are met, we then consider whether the federal action would have the 

practical effect of enjoining the state proceedings and whether an exception to Younger

applies.” (Id., quoting Gilbertson v. Albright, 381 F.3d 965, 983-84 (9th Cir. 2004).) 
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A recent decision from the United States District Court for the Central District of 

California upheld applying the Younger Abstention Doctrine to a 42 U.S.C. section 1983 

lawsuit challenging an on-going state court child support enforcement action. (Amaral v. 

County of Los Angeles, U.S. Dist. Ct., Central Dist. of Cal., Case No. 2:16-cv-4767-VBF 

(2016 U.S. Dist. LEXIS 104421).) There, the court took judicial notice of the docket of 

the underlying Los Angeles County Superior Court child support enforcement action. It 

then cited several cases that support Younger Abstention in these situations: 

The pending state court family law/child support proceedings 

implicate important state court interests. See Moore v. Sims, 442 

U.S. 415, 435, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979) (“Family 

relations are a traditional area of state concern.”); Agustin v. Count of 

Alameda, 234 Fed.App’x 521, 552 (9th Cir. 2007) (state effort to 

collect child support implicate important state interests for purposes 

of Younger abstention). Plaintiff has an adequate opportunity to 

present her constitutional claims in the state trial and/or appellate 

court. See World Famous Drinking Emporium, Inc. v. City of Tempe, 

820 F.2d 1079, 1083 (9th Cir. 1987). 

(Amaral, at *6.) 

Here, the on-going child support enforcement proceedings in Andrews v. Andrews

meet every part of the four-part test articulated in Readylink, as articulated in Amaral. 

Plaintiff’s child support enforcement action (1) is on-going (see RJN, Exhibit 1); (2) is a 

quasi-criminal enforcement action that involves California’s interest in enforcing its child 

support orders – Plaintiff was charged with contempt for failure to pay his court ordered 

child support; (3) child support order are important state interests; and (4) Plaintiff could 

have raised his federal constitutional challenges in the Superior Court but chose not to 

and instead pled guilty to the contempt charges. (See RJN, Exhibit 2.) Therefore, the 

Court should dismiss Plaintiff’s claims against the County Defendants on the basis of the 

Younger Abstention Doctrine. 

/ / / / 

/ / / / 
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 B. Statute of Limitations 

 Plaintiff has alleged violations of his constitutional right to due process through 42 

U.S.C. section 1983. Constitutional Amendments do not create direct causes of action. 

(Arpin v. Santa Clara Valley Transp. Agency (9th Cir. 2001) 261 F.3d 912, 929.) Plaintiff 

must bring his claims pursuant to 42 U.S.C. section 1983. “Section 1983 does not 

contain its own statute of limitations period, but the Supreme Court has held that the 

appropriate period is that of the forum state’s statute of limitations for personal injury 

torts.” (Johnson v. State of Cal., 207 F.3d 650, 653 (9th Cir. 2000) (citing Wilson v. 

Garcia, 471 U.S. 261, 276 (1985); see also Owens v. Okure (1989) 488 U.S. 235.) The 

Ninth Circuit has looked to California’s general personal injury statute of limitations for 

section 1983 lawsuits. (See Del Perico v. Thornsley (9th Cir. 1989) 877 F.2d 785 

(applying former California Code of Civil Procedure § 340(3); Usher v. City of Los 

Angeles (9th Cir. 1987) 828 F.2d 556 (same).) California’s current statute of limitations 

for personal injury actions is contained in California Code of Civil Procedure section 

335.1, which provides a two year statute of limitations. 

Under federal law, an action accrues when a plaintiff has a complete and present 

cause of action, i.e., when a plaintiff can “file suit and obtain relief.” (Wallace v. Kato

(2007) 549 U.S. 384 (holding that federal law controls the accrual of a cause of action 

under 42 U.S.C. § 1983); see also Lukovsky v. City and County of San Francisco, 535 

F.3d 1044, 1048 (9th Cir. 2008).) 

Plaintiff’s alleges the County Defendants failed to provide him with an 

administrative hearing from June to March of 2014. (FAC, ¶¶ 21-31.) Two years from 

March 2014 is March 2016. Plaintiff filed his original complaint on January 17, 2017. 

(Dkt. #1.) Plaintiff filed his complaint approximately nine (9) months beyond the statute 

of limitations. Plaintiff’s claims against the County Defendants should be dismissed 

pursuant to Rule 12(b)(6) as it is barred by the statute of limitations. (Von Saher v. 

Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).) 

/ / / / 
County Defendants’ Motion to Dismiss 15 17-cv-00252-WHO 

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 C. Res Judicata and Collateral Estoppel 

Plaintiff’s allegations that he was wrongfully denied a hearing regarding his 

license suspensions is barred by res judicata and collateral estoppel because (1) the judge 

heard and denied his request; and (2) he resolved the issue by pleading guilty to contempt 

charges regarding his failure to pay child support in order to have his licenses reinstated 

by the California agencies who suspended them. (FAC, ¶¶ 26, 27.) 

The Court may examine the preclusive effect of a prior judgment sua sponte. 

(McClain v. Apodaca, 793 F.2d 1031, 1032-33 (9th Cir. 1986).) The doctrine of res 

judicata, or claim preclusion, “‘bars all grounds for recovery which could have been 

asserted, whether they were or not, in a prior suit between the same parties ... on the 

same cause of action.’” (C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th 

Cir. 1987) (citing McClain, 793 F.2d at 1033).) 

Under the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, “a federal court 

must give to a state court judgment the same preclusive effect as would be given that 

judgment under the law of the State in which the judgment was rendered.” (Migra v. 

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); International Evangelical 

Church v. Church of the Soldiers, 54 F.3d 587, 590 (9th Cir. 1995).) 

The Supreme Court has made it clear that a section 1983 claim brought in federal 

court is subject to collateral estoppel and res judicata by a prior state court judgment. 

(See Allen v. McCurry, 449 U.S. 90, 97-98 (1980).) There is no exception to the rules of 

issue and claim preclusion for federal civil rights actions under 42 U.S.C. § 1983. (Clark 

v. Yosemite Community College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986); see also 

Smith v. City of Chicago, 820 F.2d 916, 920 (7th Cir. 1987) (res judicata applies where 

single core of operative facts forms basis of both lawsuits and plaintiff neglected to raise 

§ 1983 claim until years after it occurred and not until adverse judgment was rendered on 

cause of action for employment discrimination); Fleming v. Travenol Laboratories, Inc., 

707 F.2d 829, 834 (5th Cir. 1983) (res judicata applies where factual basis for Title VII 

claim is same as factual basis for §1983 claim raised earlier; even though legal theory is 
County Defendants’ Motion to Dismiss 16 17-cv-00252-WHO 

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different same wrong is sought to be vindicated in each instance and plaintiff could have 

amended prior action to include Title VII claim).) 

In this case, Plaintiff is alleging DCSS violated his constitutional due process 

rights by failing to afford him a hearing regarding the suspension of his California state 

issued licenses – the same claims he made in the child support action and the same claims 

he gave up when he pled guilty to the contempt charges. The same parties were involved 

in the child support action as are here – Plaintiff and DCSS. The only other County 

parties here are Defendants Kirk Gorman and Kathy Simon. Mr. Gorman appeared in his 

official capacity as an attorney for the Department in the child support enforcement 

proceedings where Plaintiff was also represented by counsel. (FAC, ¶¶ 22, 25, 26, 27.) 

Ms. Simon was allegedly the case worker at the Department who in some way touched 

Plaintiff’s file. (FAC, ¶ 23.) That is hardly any conduct that presents any new factual 

basis for a claim against either Defendant Gorman or Simon. 

All claims raised in the FAC should be dismissed based on the principles of res 

judicata and collateral estoppel. 

 D. Defendant Gorman Has Absolute Immunity from Plaintiff’s Claims 

There is no actionable conduct alleged against Defendant Kirk Gorman other than 

his appearances in Plaintiff’s child support enforcement proceedings – for which he is 

immune from any liability. 

Government attorneys are entitled to absolute immunity for actions taken in close 

or intimate association with the judicial process, including representation of a plaintiff in 

a civil action. (See Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991); see also Walden 

v. Wishengrad, 745 F.2d 149, 151-52 (2d Cir. 1984) (providing absolute immunity for 

government attorney in parental termination case).) Immunity has been extended beyond 

criminal proceedings to cover other prosecutorial duties as well as those who assist the 

prosecutor in his or her duties. (See e.g. Coverdell v. Dept. of Social & Health Services, 

834 F.2d 758, 762-764 (9th Cir. 1987).) Here, the only allegations against Defendant 

Gorman are that (1) he appeared on behalf of DCSS in Plaintiff’s child support 
County Defendants’ Motion to Dismiss 17 17-cv-00252-WHO 

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enforcement proceedings, and (2) that instead of filing Plaintiff’s request for a hearing for 

Plaintiff, he informed Plaintiff and Plaintiff’s counsel that if they wanted a hearing they 

needed to file their own motion. (FAC, ¶¶ 22, 25, 26, 27.) These child enforcement 

proceedings are authorized by California Family Code section 17450, et seq. 

Thus, Defendant Gorman is immune from Plaintiff’s claims because all of his 

actions were taken as a government attorney representing a government agency in an 

enforcement proceeding authorized by state statute. Pursuant to Rule 12(b)(6), all claims 

in the FAC should be dismissed as to Defendant Gorman with prejudice. 

E. FAC Fails to Allege Facts Sufficient to State a Cause of Action Against 

the County under Monell Liability 

Municipalities – including counties and their subdivisions – are considered 

“persons” under 42 U.S.C. section 1983 and may be liable for causing constitutional 

deprivations. (Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978) 

(“Monell”).) However, counties cannot be held liable merely for employing a tortfeasor 

under a respondeat superior theory. (Id., at 691.) Instead, a county can only be held 

liable under § 1983 where the county itself caused the constitutional violation through 

“execution of a government’s policy or custom, whether made by its lawmakers or those 

whose edicts are acts may fairly be said to represent official policy.” (Id., at 694.) 

Accordingly, “a plaintiff must allege that the action inflicting injury flowed from either 

an explicitly adopted or a tacitly authorized [municipal] policy.” (Gibson v. United 

States, 781 F.2d 1334, 1337 (9th Cir. 1986).) 

Hence, to allege a § 1983 claim against a municipal defendant (or an individual 

public official sued in his or her official capacity), a plaintiff must show that: (1) he was 

deprived of his constitutional rights by defendants and their employees acting under color 

of state law; (2) the defendants have customs or policies which amount to deliberate 

indifference to constitutional rights; and (3) the policies were the moving force behind, or 

proximate cause of, the constitutional violations. (Lee v. City of Los Angeles, 250 F.3d 

668, 681-682 (9th Cir. 2001), abrogated on other grounds by Bell Atlantic v. Twombly, 
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550 U.S. 544, 555 (2007); Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 

1996).) A plaintiff’s allegation that a policy exists, without more, is insufficient to trigger 

local government liability under § 1983. (City of Canton v. Harris (1989) 489 U.S. 378, 

388-389.) 

Single or isolated events in the context of this type of case are simply insufficient 

to state a plausible claim under Monell: “[l]iability for improper custom may not be 

predicated on isolated or sporadic incidents; it must be founded upon practices of 

sufficient duration, frequency, and consistency that the conduct has become a traditional 

method of carrying out policy.” (Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 2008).) That 

is, under Monell standards, an “isolated instance . . . is insufficient evidence of a ‘policy 

statement, ordinance, regulation, or decision officially adopted and promulgated by’ the 

County.” (See Marsh v. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) 

(internal citations omitted).) Further, a plaintiff must allege a “direct causal link” 

between the constitutional deprivation and a municipal policy or custom. (Erdman v. 

Cochise County, Arizona, 926 F.2d 877, 882 (9th Cir. 1991), quoting City of Canton v. 

Harris, 489 U.S. 378, 385 (1989).) This requires that a plaintiff actually allege the 

specific “policy” that caused the constitutional deprivation and resulting injury – 

mistakes or isolated events of municipal officials do not arise to the level of “policy” 

sufficient for § 1983 liability. (Id.) 

Plaintiff fails to allege facts demonstrating that DCSS had a policy, custom or 

practice of violating Plaintiff’s constitutional rights. The mere fact that DCSS did not 

initiate an administrative hearing as part of Plaintiff’s child support enforcement 

proceedings regarding whether or not a separate California State agency should 

suspended Plaintiff’s license (something that no statute or rule compels it to do nor can it 

do) does not provide Plaintiffs with a viable claim for relief against DCSS. Accordingly, 

Plaintiff’s claims against DCSS should be dismissed pursuant to Rule 12(b)(6) for failure 

to state a claim under Monell. 

/ / / / 
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F. FAC Fails to Allege Sufficient Facts to Support a Cognizable Legal 

Theory Against Defendant Kathy Simon 

Plaintiff’s only allegations against Defendant Kathy Simon are that she is a 

“caseworker at DCSS” and “having known about the letter requesting the appeal, and 

having known the appeal never happened, was complicit in the intentional damage to 

Plaintiff.” (FAC, ¶ 23.) Plaintiff makes no allegations that Defendant Simon had any 

role whatsoever in processing Plaintiff’s letter requesting an appeal or whether she had 

any duty or obligation to act on Plaintiff’s request. Plaintiff has failed to allege facts 

showing that Defendant Simon was in any way responsible for his claimed violation of 

his constitutional rights. (Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A 

plaintiff must allege facts, not simply conclusions, that show that an individual was 

personally involved in the deprivation of his [or her] civil rights.”).) Plaintiff’s 

allegations against Defendant Simon could be made against almost anyone at DCSS. 

Plaintiff has failed to allege facts that demonstrate how Defendant Simon is responsible 

for Plaintiff’s alleged denial of due process. 

V. CONCLUSION 

Plaintiff is improperly seeking to re-litigate misguided, stale and incorrect legal 

theories in federal court. This court should abstain from asserting jurisdiction over 

Plaintiff’s baseless claims and dismiss this lawsuit for the numerous reasons described 

above. 

Dated: May 19, 2017 BRUCE D. GOLDSTEIN, County Counsel 

By: /s/ Joshua A. Myers 

Joshua A. Myers 

Deputy County Counsel 

Attorneys for Defendants 

SONOMA COUNTY DEPARTMENT 

OF CHILD SUPPORT SERVICES; 

KIRK GORMAN; KATHY SIMON