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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

Kimberly M, Drake, SBN: 209090

JARVIS, FAY, DOPORTO & GIBSON, LLP

492 Ninth Street, Suite 310

Oakland, CA 94607

Telephone: (510) 238-1400

Facsimile: (510) 238-1404

kdrake@jarvisfay.com

Attorneys for Defendant

LOUISE BAYLES-FIGHTMASTER

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARK ANDREWS,

Plaintiff, 

v.

CALIFORNIA DEPARTMENT OF 

CONSUMER AFFAIRS, SONOMA COUNTY 

DEPARTMENT OF CHILD SUPPORT 

SERVICES, CALIFORNIA DEPARTMENT OF 

MOTOR VEHICLES, CALIFORNIA BUREAU 

OF AUTOMOTIVE REPAIR, LOUISE BAYLES 

FIGHTMASTER, KIRK GORMAN, KATHY 

SIMON, and DOES 1 through 20,

Defendants.

CASE NO. 17-CV-00252-WHO

DEFENDANT LOUISE BAYLESFIGHTMASTER’S SUPPLEMENTAL 

REPLY BRIEF 

Date: July 19, 2017

Time: 2:00 p.m.

Courtroom: 2, 17th Floor

Judge: Hon. William H. Orrick

Action Filed: January 17, 2017

Defendant Louise Bayles-Fightmaster hereby submits her supplemental reply to Plaintiff Mark 

Andrews’ late-filed opposition pursuant to the Court’s July 25, 2017 Order. See Dkt. No. 31. 

I. INTRODUCTION

In her moving papers, Louise Bayles-Fightmaster, a former Commissioner of the Superior Court 

of California, County of Sonoma, itemized the First Amended Complaint’s substantial flaws. Dkt. No. 

13. The plaintiff now has submitted a late-filed opposition (Dkt. No. 28), which this Court has agreed to 

consider. Dkt. No. 31. Plaintiff’s opposition fails to meaningfully refute Commissioner Bayles-
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

Fightmaster’s arguments. Plaintiff does not offer any legal analysis or facts to overcome the motion to 

dismiss. In addition to highlighting these omissions in the Plaintiff’s opposition, Commissioner BaylesFightmaster more particularly replies as follows. 

II. ARGUMENT

A. The Motion to Dismiss Should be Granted

In his opposition, Plaintiff spends considerable energy setting forth his views on pro se pleadings 

and the standard of review for a motion to dismiss. Dkt. No. 28, pp. 3-6. Although it is true that pro se 

complaints are to be liberally construed and are held to less stringent standards than formal pleadings 

drafted by lawyers (Erickson v. Pardus, 551 U.S 89, 94 (2007), pro se pleadings must still allege facts 

sufficient to allow a reviewing court to determine whether a claim has been stated. Ivey v. Bd. of 

Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). “A liberal 

interpretation of a civil rights complaint may not supply essential elements of the claim that were not 

initially pled. Vague and conclusory allegations of official participation in civil rights violations are not 

sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. Here, Plaintiff has not asserted 

facts, even if taken as true, that are sufficient to state a plausible claim against Commissioner BaylesFightmaster for alleged deprivation of a federal statutory or constitutional right. Howerton v. Gabica, 

708 F.2d 380, 382 (9th Cir. 1983). He has also failed to state a claim that is not otherwise barred by the 

Rooker-Feldman doctrine, absolute judicial immunity, or on other grounds. The First Amended 

Complaint should therefore be dismissed.

1. The federal court lacks subject matter jurisdiction to hear this matter.

In her moving papers, Commissioner Bayles-Fightmaster has noted that the Rooker-Feldman 

doctrine prohibits federal jurisdiction because Plaintiff seeks the de facto equivalent of review of 

unfavorable state-court rulings. The Rooker-Feldman doctrine prevents federal district courts “from 

exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.” 

See e.g., Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); Noel v. Hall, 341 F.3d 1148, 

1163-65 (9th Cir. 2003) (discussing Rooker-Feldman doctrine and providing, at p. 1164: “If 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, Rooker-Feldman bars subject matter jurisdiction in federal 
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

district court.”); Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003) (“Stated plainly, RookerFeldman bars any suit that seeks to disrupt or ‘undo’ a prior state-court judgment, regardless of whether 

the state-court proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate her 

claims.”) (internal quotations omitted). Although the First Amended Complaint facially asserts alleged 

constitutional violations, its substance challenges the state court’s denial of Plaintiff’s motion seeking 

the release of his licenses. See e.g., Grimes v. Alameda Cnty. Soc. Servs., No. C11-02977 WHA, 2011 

WL 4948879, at *3 (N.D. Cal. Oct. 18, 2011). The complaint is, at its core, an appeal of and 

inextricably intertwined with the state court’s decision and an improper collateral attack on its prior 

rulings. Accordingly, this Court lacks subject matter jurisdiction under Rooker-Feldman.1

Plaintiff argues that Rooker-Feldman does not apply because Plaintiff “did not have a full 

opportunity to argue his claim on appeal.” Dkt. No. 28, at p. 6. Plaintiff does not say what claim he is 

referring to or why he did not have a fully opportunity to argue his claim on appeal. However, his

statement underscores the idea that Plaintiff’s lawsuit is a de facto appeal from a disagreeable state court 

decision. 

Plaintiff also argues that the holding of Universal Oil Products Company v. Root Refining 

Company, 328 U.S. 575 (1946), a patent infringement suit, gives this court jurisdiction to “investigate a 

question as to whether there is a fraud in the procurement of the judgment.” Dkt. No. 28, at p. 6. 

Federal courts are courts of limited jurisdiction. The cited cases do not expand this jurisdiction or confer 

jurisdiction as Plaintiff suggests. Nor has Plaintiff alleged facts showing “fraud in the procurement of 

the judgment” or warranting an investigation.

2. Plaintiff’s claims are barred by the doctrines of res judicata and collateral 

estoppel.

Plaintiff’s suggestion that “corruption” or other unlawful conduct in the state court proceedings 

prevented him from challenging the legality of the license suspension, or from getting his licenses back 

earlier than he did (Dkt. No. 28, at p. 7), are barred by the doctrines of res judicata and collateral 

estoppel. “Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims that were raised or could 

 1 Commissioner Bayles-Fightmaster also raised dismissal of Plaintiff’s claims on abstention grounds. Plaintiff does not address this in his opposition.
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

have been raised’ in a prior action.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) 

(quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Res judicata 

applies when there is: (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or 

privity between the parties. Stewart, 297 F.3d at 956. Under California law, the doctrine encompasses 

specific matters that are within the scope and related to the subject-matter litigated in the prior suit, even 

if the issue subsequently raised was not expressly pleaded or litigated in the prior suit. See Thibodeau v. 

Crum, 4 Cal.App.4th 749, 755 (1992). “The reason for this is manifest. A party cannot, by negligence 

or design, withhold issues and litigate them in consecutive actions. Hence the rule is that the prior 

judgment is res judicata on matters which were raised or could have been raised, on matters litigated or 

litigable.” Id. at 755 (citation omitted). 

The three elements for res judicata are met here. There is an identity of claims because the 

grounds supporting Plaintiff’s current constitutional claims were raised or should have been raised with

Plaintiff’s motion seeking the return of his licenses, and again when he pled guilty to three counts of 

contempt of court to “get [his] licenses back.” (FAC, ¶¶ 21-23, 27-29.) There was a final judgment on 

the merits in the trial court when Plaintiff pled guilty. There is also an identity of parties. Plaintiff 

cannot re-litigate claims decided against him in the prior state court proceedings. They are barred by res 

judicata. See Haupt v. Dillard, 17 F.3d 285, 288 (9th Cir. 1994). 

Plaintiff’s claim that he was denied a hearing regarding the license suspension is also barred by 

collateral estoppel. Collateral estoppel or issue preclusion, applies to “prevent[ ] a party from 

relitigating an issue decided in a previous action if four requirements are met: (1) there was a full and 

fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated in that 

action; (3) the issue was lost as a result of a final judgment in that action; and (4) the person against 

whom the collateral estoppel is asserted in the present action was a party or in privity with a party in the 

previous action.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050 (9th Cir. 2008) (citation and 

quotation marks omitted). Collateral estoppel applies because the four requirements are met. Plaintiff’s

licenses were admittedly suspended for failing to make court-ordered child support payments. (FAC, ¶¶

17-28.) Plaintiff challenged the propriety of the suspension by motion. (FAC, ¶ 17-28.) The court 

denied the motion. Plaintiff subsequently pled guilty to contempt of court for failing to pay court-
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

ordered child support. (FAC, ¶¶ 27-28.) The court ordered that his licenses be released. (Id.) Plaintiff 

had a full and fair opportunity to litigate the propriety of the license suspension in the trial court. The 

guilty plea was a final judgment and undermines Plaintiff’s allegations that the license suspension was 

unlawful. Plaintiff is also the party against whom collateral estoppel is asserted. Plaintiff may not now 

re-litigate the same issues that were decided against him in the earlier child custody proceeding. 

3. Plaintiff’s claims are barred by absolute judicial immunity.

Commissioner Bayles-Fightmaster, who is sued in her role as Commissioner for the Superior

Court, has raised absolute judicial immunity in response to Plaintiff’s claims. Pierson v. Ray, 386 U.S. 

547, 553-55 (1967) (applying judicial immunity to actions under § 1983). A state court judge is 

absolutely immune from civil liability for damages for acts performed in her judicial capacity and will 

not be deprived of that immunity because the action she took “was in error, was done maliciously, or in 

excess of [her] authority[.]” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (citing Bradley v. Fisher, 

80 U.S. (13 Wall.) 335, 351 (1872)); see also Mireles v. Waco, 502 U.S. 9, 11 (1991) (judicial immunity 

is not overcome by allegations of bad faith or malice); Sadorski v. Mosley, 435 F.3d 1076, 1079 n.2 (9th 

Cir. 2006) (mistake alone is not sufficient to deprive a judge of absolute immunity). Plaintiff’s claims 

asserted against Commissioner Bayles-Fightmaster arise out of a September 18, 2013 ruling she made in 

adjudicating Plaintiff’s case at the trial level. The actions of Commissioner Bayles-Fightmaster are 

protected from Plaintiff’s claims by absolute judicial immunity. Plaintiff does not allege or offer any 

facts showing that immunity is lost. The Bulloch and Owen cases he cites are also inapplicable and 

presented without legal analysis or argument. Dkt. No. 28, at pp. 6-7. Plaintiff’s claims against 

Commissioner Bayles-Fightmaster are barred as a matter of law and must be dismissed.

4. Plaintiff’s claims are barred by the Eleventh Amendment.

In her moving papers, Commissioner Bayles-Fightmaster has noted that she is a state employee 

who has Eleventh Amendment immunity from suit in this forum. Flint v. Dennison, 488 F.3d 816, 824-

825 (9th Cir. 2007); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (“a claim that 

state officials violated state law in carrying out their official responsibilities is a claim against the State 

that is protected by the Eleventh Amendment.”). This immunity is a complete bar to the Plaintiff’s 

damages claims. Plaintiff’s opposition does not offer any facts or legal basis suggesting otherwise. 
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

Plaintiff asserts that Commissioner Bayles-Fightmaster “failed to perform her judicial 

functions,” and that “the impartial function of the court [has] been directly corrupted.” Dkt. No. 28, at p. 

6. These are legal conclusions devoid of specific facts. Plaintiff’s own facts also confirm that 

Commissioner Bayles-Fightmaster is being sued for carrying out her judicial function because he 

complains solely about her rulings in his case and her denial of his motion. The claims asserted against 

her in her official capacity are barred by the Eleventh Amendment.

5. Plaintiff’s claims are barred by the applicable statute of limitations.

Commissioner Bayles-Fightmaster has noted that Plaintiff’s claims are barred by the 2-year 

statute of limitations applicable to personal injury actions. Plaintiff argues there was “fraud in the 

procurement of the judgment,” and appears to be arguing that the 3-year statue of limitations for fraud 

should apply. Dkt. No. 28, at p. 7. The claim that there was “fraud in the procurement of the judgment” 

is a legal conclusion devoid of specific facts. The claim is contradicted by other allegations in the First 

Amended Complaint. Plaintiff also has not sufficiently alleged that Commissioner Bayles-Fightmaster 

caused him to be deprived of a constitutional right to state a claim under § 1983. Howerton, supra, 708 

F.2d at 382. Even assuming Plaintiff could state a cause of action for fraud and a 3-year statute of 

limitations applied, moreover, Plaintiff’s First Amended Complaint is still barred by the applicable 

statute of limitations. According to the pleadings, Commissioner Bayles-Fightmaster wrongfully denied 

his September 13, 2013 motion seeking the return of his licenses. (FAC, ¶¶ 21-23.) At that time, 

Plaintiff knew or had reason to know of the injury which is the basis of this action. Yet Plaintiff did not 

file his complaint until January 17, 2017, which is after expiration of the 3-year statute of limitations. 

Since Plaintiff can prove no set of facts that would establish the timeliness of his claims against 

Commissioner Bayles-Fightmaster, his claims should be dismissed. 

6. Plaintiff fails to state a plausible claim upon which relief may be granted.

Commissioner Bayles-Fightmaster has noted that there are no allegations in the First Amended 

Complaint that are sufficient to support a claim under 42 U.S.C. § 1983 against her. In his opposition, 

Plaintiff argues that Commissioner Bayles-Fightmaster “failed to perform her judicial function” and 

“caus[ed] the impartial function of the court to be directly corrupted.” Dkt. No. 28, at sp. 7. He also 

repeats his generalized allegations of “fraud.” Id. at pp. 6-7. However, these are legal conclusions
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

devoid of specific facts. Nothing in the pleading prompts an inference that Commissioner BaylesFightmaster’s actions were contrary to law or that she acted outside of her official role. Nor can it 

reasonably be said that she acted to abridge any of the Plaintiff’s federally-protected rights. In addition, 

there are no facts establishing what Commissioner Bayles-Fightmaster did or did not do that allegedly 

amounted to “fraud,” or how any judgment referred to in Plaintiff’s pleadings was procured by fraud or 

the result of a “fraud on the court.” Plaintiff’s allegation that he was denied a hearing is also 

contradicted by other allegations in the First Amended Complaint that there were hearings and that the 

Court ruled on a motion brought by Plaintiff seeking return of his licenses. (FAC, ¶¶ 21-23, 25, 27, 29.) 

Thus, Plaintiff fails to state a plausible § 1983 claim against Commissioner Bayles-Fightmaster and his 

First Amended Complaint against her should be dismissed. See e.g., Taylor v. List, 880 F.2d 1040, 1045 

(9th Cir. 1989); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 

7. Plaintiff fails to state a tort claim under California law.

Commissioner Bayles-Fightmaster also noted in her moving papers that Plaintiff, in addition to 

failing to state a claim under § 1983, has failed to sufficiently allege a claim for damages under state law 

because he has not alleged facts showing compliance, or excuse from compliance, with claim 

presentation requirements under the Government Claims Act. Plaintiff’s opposition does not make any 

mention of this requirement. Plaintiff also does not offer any facts showing compliance or excuse from 

compliance. Any alleged tort claims under state law are therefore barred as a matter of law and should 

be dismissed.

B. Leave to Amend Should be Denied

If there is strong evidence that amendment would be futile, a court should dismiss the complaint 

without leave to amend. See Sonoma County Ass’n of Retired Employees v. Sonoma County, 708 F.3d 

1109, 1117 (9th Cir. 2013); Fed. R. Civ. P. 15. In determining the futility of amendment, the court 

should examine whether the complaint could be amended to cure the defect “without contradicting any 

of [the] original complaint.” Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990). Plaintiff’s First 

Amended Complaint and late-filed opposition make plain that amendment would be futile. The claims 

are implausible. Amendment of the pleadings would not cure the jurisdictional defect or bar to suit 

based on judicial immunity. Leave to amend should not be allowed.
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

III. CONCLUSION

For all the foregoing reasons, this Court should grant Commissioner Bayles-Fightmaster’s 

motion to dismiss without leave to amend.

JARVIS, FAY, DOPORTO & GIBSON, LLP

Dated: August 1, 2017 By: /s/ .

Kimberly M. Drake

Attorneys for Defendant

LOUISE BAYLES-FIGHTMASTER
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Defendant Bayles-Fightmaster’s Supplemental Reply Brief Case No. 17-CV-00252-WHO

CERTIFICATE OF SERVICE

I, the undersigned, declare as follows:

I am a citizen of the United States and employed in the County of Alameda; I am over the age of 

eighteen years and not a party to the within entitled action; my business address is Jarvis, Fay, Doporto 

& Gibson, LLP, 492 Ninth Street, Suite 310, Oakland, California 94607.

On August 1, 2017, I served the within:

DEFENDANT LOUISE BAYLES-FIGHTMASTER’S SUPPLEMENTAL REPLY BRIEF 

(X) (By First Class Mail) I caused this envelope, with postage thereon fully prepaid, to be placed in 

the United States mail to be mailed by First Class mail at Oakland, California, to:

Mark T. Andrews

3436C Mendocino Avenue

Santa Rosa, CA 95403

Plaintiff in pro per

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct. 

Executed on August 1, 2017, at Oakland, California.

 /s/ _

Chelsea L. Torres