Opinion
No. C 03-03358 CRB
October 21, 2003
MEMORANDUM AND ORDER
This is the third in a series of cases brought by plaintiff Andrew Shalaby in which he attempts to challenge the constitutionality of California's SLAPP statute, Code of Civil Procedure section 425.16. In this action plaintiff sues an Alameda County Superior Court judge, Robert B. Freedman, and the "Judicial Officers of the State of California" under 42 U.S.C. § 1983. Now before the Court is defendants' motion to dismiss on the ground of Eleventh Amendment immunity, among other reasons. After carefully considering the papers submitted by the parties, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and GRANTS defendants' motion.
BACKGROUND
I. The State Court ProceedingsPlaintiff Andrew W. Shalaby ("Shalaby") is a lawyer. The root of the present action originates in Perez v. King, a state case in which he represented the landlord Perezes in an action for unlawful detainer against tenant Carolyn King. King appeared proper. The case was eventually settled.
The Perezes, with Shalaby as their counsel, subsequently sued lawyers for the Eviction Defense Center ("EDC") in state court, alleging that although King had appeared pro per, EDC lawyers had ghostwritten pleadings on her behalf. The first suit, Perez v. Omura. was brought against EDC lawyer Anne Omura, claiming abuse of process, barratry, fraud, and intentional infliction of emotional distress. The second suit, Perez v. Jacobowitz, was brought against both Omura and a second EDC lawyer, Ira Jacobowitz, claiming violation of California's Business and Professional Code.
These suits were separately dismissed, both dismissals arising from motions brought under California Code of Civil Procedure section 425.16, (often called the "SLAPP statute"), a procedural rule allowing a defendant to move to strike causes of action deemed to be a "Strategic Lawsuit Against Public Participation." The statute defines such "SLAPP suits" as those "arising from any act of [the defendant] in furtherance of the personal right of petition or free speech." Cal. Civ. Proc. Code § 425.16(b)(1) (2003). A defendant who prevails on the motion to strike is awarded attorneys fees and costs. Id., at § 425.16(c). The Perezes were ordered to pay approximately $31,776 in the dismissal ofPerez v. Omura and $17,290 in the dismissal of Perez v. Jacobowitz.
King (represented by the EDC) then sued the Perezes in state court for breach of the settlement agreement in Perez v. King and for wrongful eviction. The claim was settled, with the Perezes agreeing to pay damages of $75,000 in an exchange for a release of all claims.
The Perezes subsequently sued Shalaby in state court (Perez v. Shalaby) for malpractice regarding his conduct in litigating and precipitating the above cases.
II. Shalaby's First Federal Suit: Shalaby v. Jacobwitz
Claiming that the EDC's ghostwriting on behalf of King was actually responsible for the Perezes' damages, Shalaby, proceeding in pro per, brought a separate action in this Court against Jacobowitz and Susan Burnett Luten. Shalaby v. Jacobowitz (No. 03-0227 CRB). Among Shalaby's claims in Shalaby v. Jacobowitz was a challenge to the constitutionality of section 425.16. Shalaby claimed that the statute could be "applied unconstitutionally to chill or abridge the valid exercise of FIRST AMENDMENT rights of freedom of speech and petition for redress of grievances," and that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Compl. at ¶¶ 3-6, Shalaby v. Jacobowitz (No. 03-0227-CRB).
Jacobowitz moved to dismiss due to a lack of a sufficient case or controversy. Shalaby argued standing based on both individual injury and injury to the public. With respect to the individual injury, Shalaby argued that the threat of sanctions under section 425.16 deterred him from seeking indemnification from Jacobowitz in the malpractice action.Shalaby v. Jacobowitz 2003 U.S. Dist. LEXIS 6551, at *4. This Court found that:
Plaintiffs claim against Jacobowitz is too attenuated to be justiciable and is unripe. [Plaintiff] has not even filed the anticipated cross-claim, so any exposure to SLAPP sanctions is purely hypothetical. This Court may not issue an advisory opinion on a claim that may never arise. Thus, the Court does not have jurisdiction over plaintiffs declaratory relief claim arising out of the possible imposition of SLAPP sanctions in the malpractice claim.Id at *11. With respect to the injury to the public, this Court found that although Shalaby might have standing to make a facial overbreadth challenge to the statute, such a claim did not implicate Jacobowitz. To hold otherwise would mean that a plaintiff could name anyone as a defendant in a lawsuit challenging the constitutionality of a state statute.
In sum, the Court held that Shalaby's constitutional challenge to the SLAPP statute as applied to the malpractice proceeding was unripe, and to the extent he was making a facial overbreadth challenge to the statute he had not sued the right defendant. III. Shalaby's Second Federal Suit: Shalaby v. State of California
Shalaby then filed another case challenging the constitutionality of section 425.16, this time with the State of California and its Attorney General, Bill Lockyer, as defendants. Shalaby v. State of California (03-1922 CRB). With respect to himself, Shalaby claimed that section 425.16 "chilled the First Amendment rights of [the Perezes] to petition the Court for redress" and that "but for the mandatory sanctions provision of subsection (c), [the current malpractice suit] would not have resulted." Compl. at ¶ 7. He further claimed that the statute generally violates the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id at ¶¶ 12-17. He also sought ten statements of declaratory relief stating that section 425.16 is facially unconstitutional (which Shalaby labels his "general challenge" and his "overbroad" challenge) and that it is unconstitutional as applied in a variety of situations. See id. at ¶¶ 18-27.
Defendants moved to dismiss on the ground, among others, that plaintiffs suit against them in federal court is barred by Eleventh Amendment immunity. The Court granted the motion as to both the State of California and the Attorney General. With respect to the Attorney General, the Court held that the Ex Parte Young exception to Eleventh Amendment immunity did not apply because the Attorney General does not enforce the SLAPP statute; instead, SLAPP motions are brought by private parties.
IV. Shalaby's Third Federal Lawsuit: Shalaby v. Freedman
Undeterred by his lack of success in federal court, Shalaby immediately filed a third federal lawsuit. He makes the same claims as Shalaby v. State of California. This time, however, he names Robert B. Freedman, a California Superior Court judge and the judge who presided over the Perez v. Omura matter, and the "Judicial Officers of the State of California" as defendants. Since Shalaby sues Judge Freedman in his official capacity, and he seeks only prospective relief, that is a declaration that the statute is unconstitutional and an injunction enjoining California's "judicial officers" from enforcing the statute, it is unclear why he specifically names Judge Freedman as a defendant. In any event, the intent of Shalaby's lawsuit is clear: to enjoin the application of California's SLAPP statute.
DISCUSSION
Defendants move to dismiss on the ground, among others, that this lawsuit is barred by the Eleventh Amendment to the United States Constitution.I. Burden of Proof
Eleventh Amendment immunity is treated as an affirmative defense. See ITSI T.V. Prods., Inc. v. Aerie. Ass'ns, 3 F.3d 1289, 1291 (9th Cir. 1993). "Like any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance." Id. Thus the burden here rests with defendants Robert B. Freedman and the "Judicial Officers of the State of California."
II. Shalaby's Claims Against California Are Barred
While Shalaby does not explicitly name "the State of California" as a defendant, his claims against the "Judicial Officers of the State of California" are claims against the State of California; he is attempting to proceed against the entire California judiciary. The Eleventh Amendment bars Shalaby from bringing such claims in federal court. See Hirsh v. Justices of S.Ct. of the State of Ca!., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam): see also Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) ("The Eleventh Amendment's jurisdictional bar covers suits naming state agencies and departments as defendants, and applies whether the relief sought is legal or equitable in nature.").
III. Ex Parte Young Does Not Apply
As the Court noted in its order dismissing Shalaby's previous lawsuit against the State of California, even where the state itself may not be named as a defendant, it may still be possible to sue an individual state officer in his official capacity for injunctive or declaratory relief under the doctrine announced in Ex Parte Young. 209 U.S. 123 (1908). The idea behind Young is that a state officer may not hide behind the power of the state in committing an unconstitutional act. See id at 159-60.
Young does not, however, create an indiscriminate exception to the Eleventh Amendment. A plaintiff may not challenge any statute's constitutionality simply by naming some random state officer, rather than the state itself, as the defendant. Instead, Young requires the defendant officer to have "some connection with the enforcement of the act or else [the suit] is merely making him a party as a representative of the State, and thereby attempting to make the State a party." Id. at 157. This connection "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Snoeck v. Brussa. 153 F.3d 984, 986 (9th Cir. 1998) (citing L.A. County Bar Assoc. v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).
Plaintiff cites Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001), to support his argument that Judge Freedman and the California judiciary are state officers responsible for enforcing the SLAPP statute. InOkpalobi, the plaintiff physicians made a facial attack on the constitutionality of a Louisiana statute providing women who undergo an abortion a private tort remedy against the physicians who perform the abortion. Plaintiffs named as defendants the Attorney General and Governor of Louisiana. Id. at 409. The Fifth Circuit, sitting en bane, held that the Eleventh Amendment barred the lawsuit from being heard in federal court. It concluded that the Ex Parte Young exception applies only when the "named defendant state officers have some connection with the enforcement of the act and `threaten and are about to commence proceedings' to enforce the unconstitutional act.'" Id. at 416. The exception did not apply to the attorney general and governor because the statute is "a purely private tort statute, which can be invoked only by private litigants." Id. at 422.
Similarly, in Summit Med. Assocs. P.C. v. Prvor. plaintiffs sued the governor, attorney general, and district attorney of Alabama challenging statutes creating both criminal and civil liability for physicians who performed certain types of abortions. 180 F.3d 1326, 1329-30 (11th Cir. 1999). The court found that the Young exception applied only to the criminal liability portions of the statutes; the Eleventh Amendment barred suing these defendants to challenge the creation of civil liability since the defendants "had no enforcement authority over those specific provisions." Id. at 1329. The Seventh Circuit has arrived at the same conclusion when faced with a very similar abortion statute. See Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) ("[T]he states' Attorneys General and local prosecutors have nothing to do with civil suits. Relief against the public officials therefore would be pointless even if the civil-liability provisions were problematic."), vacated on other rounds by 530 U.S. 1271 (2000).
California's SLAPP statute is similarly a private statute "which can be invoked only y private litigants." Neither the Attorney General, nor the Governor, nor Judge Freedman, or any member of the California judiciary can commence, or even threaten to commence, proceedings under section 416. It is thus unsurprising that Shalaby has not cited a single case, and the Court has not located any, in which a plaintiff challenging a civil statute enforced by private litigants was able to avoid the Eleventh Amendment bar by suing the judges of a state.
Shalaby's reliance on Alia v. Michigan Supreme Court 906 F.2d 1100 (6th Cir. 1989) 5 equally unhelpful. In Alia the plaintiffs challenged the Michigan Supreme Court's authority to promulgate mediation rules. The court held that the individual justices were entitled to absolute legislative immunity from suit. Id. at 1102. The court no where suggests hat the Ex Parte Young exception applies to a lawsuit brought against a state judiciary, or an individual member of that judiciary, seeking a declaration that a state civil statute which provides a private cause of action is unconstitutional.
CONCLUSION
Shalaby's claims against Judge Robert B. Freedman and the "Judicial Officers of the State of California" are barred by the Eleventh Amendment to the United States Constitution, The Court's holding today, and in Shalaby's previous cases, does not mean that California's SLAPP statute is "insulated from attack;" instead, Shalaby must make his claim in a state forum. Alia, 906 F.2d at 1102. It also does not mean that the SLAPP statute is insulated from federal review. As the Okpalobi court noted, "the Eleventh Amendment is no bar to the United States Supreme Court's consideration of a case against state officers brought to it by way of state courts." 244 F.3d at 429 n. 4O (citing South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 166 (1999)). Accordingly, defendants' motion to dismiss is GRANTED without leave to amend.