statute of limitations of the prior claims. McClain v. Apodaca, 793 F.2d 1031, 1032-1034 (9th
Cir. 1994) (doctrines of res judicata and collateral estoppel bar subsequent litigation of a
particular issue, but do not involve consideration of the statute of limitations). Moreover,
Plaintiff ignores that his ability to challenge his license suspensions is barred due to his guilty
plea to contempt charges regarding the failure to pay child support. Haupt v. Dillard, 17 F.3d
285, 288, (9th Cir. 1994) (suit alleging denial of a fair trial estopped where issue of probable
cause decided during the allegedly violative criminal action). Plaintiff's present claim, which
alleges that he was prevented from raising the legality of his licenses suspensions in state court, is
the same claim he extinguished when he pleaded guilty to the contempt charges. (FAC, $f 20,
27.) The doctrines of res judicata and collateral estoppel thus prevent the Plaintiff from
collaterally attacking his state-court guilty plea in this court.

The opposition also contends that the applicable statute of limitations is three years,
pursuant to Cal. Code Civ. Proc. § 335, based on a theory of fraud on the court. (Plaintiff's Oppo.
to Mot. Dismiss, 07/19/2017, ECF No. 30, p. 7, In. 9-13.) This point, while irrelevant, is also an
admission by plaintiff that his allegations of fraud were not made against the Defendants, who
were not participants in the state-court proceeding. (FAC, §§ 27-28.) The only allegations against
the Defendants describe their issuance of mandatory notices to Plaintiff during the summer of
2013, informing the Plaintiff of his impending license suspension in June and July 2013,
“pursuant to the FC §17520 and DCSS order”. (FAC, {J 16-17.) Therefore, even assuming a
three-year statute of limitations was somehow applicable in this case, any claims that arose out of
events in 2013 cannot be presented in this lawsuit, as this action was not filed until January 17,
2017. Jones v. Bock, 549 U.S. 199, 215 (2007) (if a complaint’s allegations show that relief is
barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to
state a claim).

Lastly, Plaintiffs opposition fails to demonstrate how the statutorily provided court-review
process under California Family Code section 17520 is inadequate as a matter of law. The facts

in this case indicate that Plaintiff received all the due process to which he was entitled under the

4

Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)



YN Dw fF wWwN

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Angeles, 141 F.3d 1373, 1382 (1998) (Mexican national can not assert Bivens theory against state
actors to avoid express limitation within § 1983); see also Azul—Pacifico, Inc. v. City of Los
Angeles, 973 F.2d 704, 705 (9th Cir.1992); Bretz v. Kelman, 722 F.2d 503, 504 n. 1 (9th
Cir.1983), vacated on other grounds, 773 F.2d 1026 (1985) (en banc). When analyzed under 42
U.S.C. § 1983, Plaintiffs constitutional claim against the state defendants fails because a state
and its agencies are not persons under § 1983. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989); see also Williamson v. Indiana University, 345 F.3d 459, 463 (7th Cir. 2003); (“No
cognizable claim under the civil rights statutes can be brought against a state, because it is not a
“person” for purposes of those provisions”). The holding in Will establishes that Defendants are
not subject to suit under § 1983. Howlett v. Rose, 496 U.S. 356, 365 (1990); Gilbreath v. Cutter
Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (‘arms of the State’ ... are not ‘persons’
under section 1983.”). As a result, the Plaintiff's allegations against the Defendants have no
merit.

Plaintiff's opposition next states that the Eleventh Amendment does not bar his suit, as the
FAC includes claims against individuals. Again, this point is considerably off the mark. The
individual defendants named in the FAC, are not related to the DCA or DMV. (FAC, {{ 1-8.)

More relevantly, the Eleventh Amendment bars suits against state agencies in federal
courts. Mitchell v. Los Angeles, Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988)
(citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)), cert. denied,
490 U.S. 1081 (1989). Recently, Supreme Court decisions have stressed that the Eleventh
Amendment protects the “integrity” and “dignity” of the states. Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30, 39 (1994); Fed. Maritime Comm'n v. South Carolina State Ports Authority,
535 U.S. 743, 759-60 (2002). Here, the relief sought by the Plaintiff is expressly barred by the
Eleventh Amendment, and the claims within the FAC have no merit against the Defendants.

Plaintiff's opposition also argues that the statute of limitations on his claims have not
expired, and thus the doctrines of res judicata and collateral estoppel somehow do not bar his suit.
(Plaintiff's Oppo. to Mot. Dismiss, 07/19/2017, ECF No. 29, p. 8, In. 8-12.) This contention

lacks merit because the doctrines of res judicata and collateral estoppel are not affected by the
— x - - —

Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)



California Family Code and the federal constitution. As a result, the FAC should be dismissed
under Fed. R. Civ. P. 12(b)(6).
B. The Court’s Lack of Subject Matter Jurisdiction and the Plaintiff's Failure

to State a Claim for Relief Are Not Excused Due to Plaintiff’s Pro Se
Status

The Plaintiff's complaint is held to a less strict standard because he is unrepresented.
Estelle v. Gamble, 429 U.S. 97, 106, 97 (1976). However, the court should dismiss an
unrepresented party’s complaint when, as here, it is “beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” /d., quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).

With regard to unrepresented parties, the court “has a duty to ensure that pro se litigants do
not lose their right to a hearing on the merits of their claim due to ignorance of technical
procedural requirements.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
However, “pro se litigants in an ordinary civil case should not be treated more favorably than
parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).
Moreover, there is no general excuse for a pro se plaintiff's missteps in a civil case. McNeil v.
United States, 508 U.S. 106, 113 (1993).

Here, the central issue is whether Plaintiff is entitled to leave to amend the FAC. Given
that the FAC’s deficiencies amount to much more than a failure to comply with minor, technical
procedural requirements, leave should not be granted. Rather, the FAC fails to comply with
significant, substantive legal doctrines that: (1) establish that the court lacks subject matter
jurisdiction over Plaintiffs claim; and (2) prevent the Plaintiff from stating a claim for relief. As
discussed above, the FAC cannot be amended to cure its fatal defects because the Plaintiff's
claims do not have any merit. In these circumstances, allowing an amendment would be a futile
act and prejudice the Defendants by forcing them to defend invalid claims. Leadsinger, Inc. v.
BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (leave to amend properly denied to prevent
undue prejudice or where futile). As a result, the court should dismiss this case with prejudice

against the Defendants.

5

Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)



Xavier Becerra
Attorney General of California
MIGUEL A. NERI
Supervising Deputy Attorney General
CHRISTOPHER D. BEATTY
Deputy Attorney General
State Bar No. 250040
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
Telephone: (510) 879-3313
Fax: (510) 622-2270
E-mail: Christopher.Beatty@doj.ca.gov

Attorneys for Defendants California Department of

Department of Motor Vehicles; California
Department of Consumer Affairs, including the
Bureau of Automotive Repairs

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARK ANDREWS,

PLAINTIFF,

CALIFORNIA DEPARTMENT OF
CONSUMER AFFAIRS; SONOMA
COUNTY DEPARTMENT OF CHILD
SUPPORT SERVICES; CALIFORNIA
DEPARTMENT OF MOTOR VEHICLES;
CALIFORNIA BUREAU OF
AUTOMOTIVE REPAIR; LOUISE
BAYLESS FIGHTMASTER, IN HER
PERSONAL AND OFFICIAL CAPACITY AS THE
COMMISSIONER APPOINTED BY THE STATE
COURT JUDGES; KIRK GORMAN, IN HIS
PERSONAL AND OFFICIAL CAPACITY AS THE
ATTORNEY FOR THE DEPARTMENT OF CHILD
SUPPORT SERVICES; KATHY SIMON, IN HER
PERSONAL AND OFFICIAL CAPACITY AS CASE
WORKER FOR CHILD SUPPORT SERVICES;
DOES 1 THROUGH 20,

DEFENDANTS.

Case No: 3:17-cv-00252-WHO

DEFENDANTS CALIFORNIA
DEPARTMENT OF MOTOR
VEHICLES’; CALIFORNIA
DEPARTMENT OF CONSUMER
AFFAIRS, INCLUDING THE BUREAU
OF AUTOMOTIVE REPAIRS’ REPLY
TO PLAINTIFF’S OPPOSITION TO
MOTION TO DISMISS

Date: August 23, 2017

Time: 2:00 PM

Courtroom: 2, 17" Floor
Judge: Hon. William H. Orrick
Trial Date: None Set

Action Filed: January 17, 2017

Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252- WHO)



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CONCLUSION

Clearly, the plaintiff can prove no set of facts in support of his claim that would entitle him

to relief against the Defendants. For the forgoing reason, the DCA and the DMV respectfully

request that this Court dismiss this action against them in its entirety without leave to amend.

Dated: July 31, 2017

OK2017901208

6

Respectfully Submitted,

XAVIER BECERRA

Attorney General of California
MIGUEL A. NERI

Supervising Deputy Attorney General

/s/ Christopher D. Beatty
CHRISTOPHER D, BEATTY

Deputy Attorney General

Attorneys for Defendant California
Department of Department of Motor
Vehicles

Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)



INTRODUCTION

Defendant California Department of Consumer Affairs (including its Bureau of Automotive
Repairs) (“DCA”) and Defendant California Department of Motor Vehicles (“DMV”)
(collectively “Defendants”) hereby file this Reply to Plaintiff Mark Andrew’s (“Plaintiff”) late-
filed opposition to their motions to dismiss the First Amended Complaint (“FAC”).

Originally, the DCA and the DMV filed individual motions to dismiss the FAC pursuant to
Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). The DCA filed its motion on June 7, 2017,
because it was served before the DMV. (DCA’s Mot. to Dismiss, 06/07/2017, ECF No. 21.) The
DMV filed its motion on June 22, 2017. (DMV’s Mot. to Dismiss, 06/22/2017, ECF No. 23.)
However, the facts, law, and arguments involved in the DCA’s and DMV’s motions to dismiss
are virtually identical. Therefore, the Defendants will reply jointly to the Plaintiff's late-filed
opposition.

The Plaintiff's opposition fails to successfully controvert the well-established law that bars
his claims. The fatal defects in the FAC cannot be cured through amendment. The court lacks
subject matter jurisdiction over the Plaintiffs claims due to a lack of a case or controversy
between Plaintiff and moving defendants. Additionally, the Plaintiff cannot state a claim for
relief against the Defendants as a matter of law based on the alleged facts in this case. As a

result, the Defendants respectfully request that the court dismiss the FAC with prejudice.

I. THE FAC CANNOT BE AMENDED TO STATE A CLAIM FOR RELIEF
AGAINST THE DEFENDANTS AS A MATTER OF LAW

A. The Plaintiff’s Arguments Fail to Controvert the Authorities Cited in
Defendants’ Motions to Dismiss

The Plaintiffs scattered opposition makes numerous erroneous arguments that show his
claims should not survive the Defendants’ motions to dismiss. Moreover, the opposition fails to
show that the Defendants denied the Plaintiff his constitutional rights during the state court
action.

Defendants’ motions establish that the Rooker-Feldman doctrine deprives the court of
subject matter jurisdiction because Plaintiff is simply seeking to re-litigate issues decided in a

state-court proceeding. Noel v. Hall, 341 F.3d 1148, 1163-1164 (9th Cir. 2003). In response,
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Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)



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Plaintiff contends he did not have an opportunity to argue his claims in state court. (Plaintiff's
Oppo. to Mot. Dismiss, 07/19/2017, ECF No. 28, P. 6, In. 11-12.) However, the FAC admits that
Plaintiff contested his license suspensions as unlawful during the state-court action, and the issue
was resolved when defendant Fightmaster denied his motion for return of his licenses. (FAC, {]
21-22, 29.) Plainly, Plaintiff's attempt to re-litigate the lawfulness of his license suspensions in
the present action is barred by the Rooker-Feldman doctrine.

Plaintiff's next contention, that the Defendants caused his injuries, has no evidentiary basis.
As aresult, this court lacks subject matter jurisdiction because there is no Article III case or
controversy in this case. (Plaintiffs Oppo. to Mot. Dismiss, 07/19/2017, ECF No. 30, p. 6, In.
16-23.) The FAC contains no allegations demonstrating a connection between the Defendants’
acts or omissions and the alleged denial of a fair hearing to review Plaintiff's license suspensions.
(FAC, §{ 19-33.) This is intuitively accurate, as Defendants were not parties to the state court
action. Moreover, Defendants’ issuance of notices of license suspension to Plaintiff was required
under state law and not due to any discretionary decision by Defendants. Cal. Fam. Code § 17520
(e)(3). Given Defendants’ limited role in the license suspensions, Defendants’ actions cannot be
connected to the alleged denial of any “fair hearing”, and thus the Plaintiff lacks Article III
standing to sue Defendants. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992)
(plaintiff's allegations must detail a causal connection between an alleged injury and defendant's
acts or omissions to maintain a case or controversy).

Plaintiff further states that his claims for due process constitutional violations can proceed
independently of 42 U.S.C. § 1983. (Plaintiff's Oppo. to Mot. Dismiss, 07/19/2017, ECF No. 30,
p. 6, In. 24-27.) This argument lacks merit because 42 U.S.C. § 1983 constitutes the exclusive
platform for asserting federal constitutional claims against state actors. Where Congress has
created an adequate remedial mechanism for constitutional violations, additional remedies should
not be created. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (no Bivens remedy for improper
denial of Social Security disability benefits). For this reason, the Ninth Circuit has held that a
plaintiff may not sue a state defendant directly under the federal constitution where § 1983

provides a remedy, even if that remedy is not available to the plaintiff. Martinez v. City of Los
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Defs’ Reply to Opposition to Motion to Dismiss (3:17-cv-00252-WHO)