1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 BRIAN H SONG, Case No. 26-cv-01209-NC 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS WITHOUT LEAVE TO AMEND 13 THOMAS MOORE, Re: ECF 13 14 Defendant. 15 16 17 Plaintiff Brian Song asserts two causes of action against Thomas Moore arising 18 from a Santa Clara County Superior Court proceeding in which they represented opposing 19 parties. The Superior Court found Plaintiff committed (1) fraud on the court by omitting 20 key facts in a motion to compel discovery, and (2) abusive litigation tactics, including 21 threatening a sanctions motion. Defendant moves to strike the complaint or dismiss it. 22 Because witness immunity and California’s litigation privilege bar Plaintiff’s claims 23 against Defendant, the Court GRANTS Defendant’s Motion to Dismiss the complaint 24 without leave to amend. 25 I. BACKGROUND 26 A. Factual Background 27 Plaintiff alleges as follows. Plaintiff and Defendant are attorneys licensed to 1 Superior Court, Defendant made false and fabricated statements. Id. ¶ 9. The Superior 2 Court issued an order which relied upon Defendant’s statements. Id. ¶ 12. Then, 3 Defendant filed a disciplinary complaint against Plaintiff with the California State Bar 4 based on the Court’s order. Id. ¶ 13. The State Bar has indicated its’ intent to rely upon 5 the Superior Court’s order which places Plaintiff’s law license and livelihood at risk. Id. ¶ 6 14. 7 B. Procedural Background 8 On February 9, 2026, Plaintiff filed the complaint in the present action. ECF 1. On 9 April 13, 2026, Defendant moved to strike the complaint in accordance with California 10 Code of Civil Procedure Section 425.16 (anti-SLAPP statute) or, in the alternative, to 11 dismiss the complaint. ECF 13. Plaintiff opposed. ECF 14. Defendant replied. ECF 15. 12 The parties have consented to magistrate judge jurisdiction. ECF 9, 11. 13 II. LEGAL STANDARD 14 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 15 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To 16 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 17 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 19 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the 20 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail 21 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 22 2014). A court, however, need not accept as true “allegations that are merely conclusory, 23 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 24 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows 25 the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted 27 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. 1 III. DEFENDANT IS ENTITLED TO IMMUNITY FOR ALL OF PLAINTIFF’S 2 CLAIMS 3 A. Witness Immunity Bars Plaintiff’s Claims 4 Under long-standing common law doctrine, witnesses are given absolute immunity 5 from civil liability for their testimony in judicial proceedings. See Briscoe v. LaHue, 460 6 U.S. 325, 330–34 (1983); Franklin v. Terr, 201 F.3d 1098, 1101 (9th Cir. 2000) (witness 7 immunity is based on protecting the judicial process). The Supreme Court emphasized the 8 durability of this immunity by observing that it was even extended in cases where the 9 witnesses “knew the statements were false and made them with malice.” Briscoe, 460 U.S. 10 at 332. Witness immunity applies to testimony offered in sworn statements and in pretrial 11 proceedings. Burns v. Cty. of King, 883 F.2d 819, 823 (9th Cir. 1989). 12 Plaintiff cannot maintain any claims against Defendant because he is entitled to 13 witness immunity. The complaint alleges Defendant “made false and fabricated assertions 14 about Plaintiff in filings submitted to a California Superior Court” and, by extension of the 15 Court’s order relying on those assertions, the State Bar. Compl. ¶¶ 9–14. Defendant 16 functioned as a witness by submitting sworn statements regarding Plaintiff’s litigation 17 tactics in the Superior Court proceeding. ECF 13-28 (Defendant’s sworn declaration in 18 support of the motion for sanctions in the Santa Clara action). As such, even if 19 Defendant’s statements were false or fraudulent when made, he is entitled to witness 20 immunity. Briscoe, 460 U.S. at 332. This immunity also applies to individuals who make 21 State Bar complaints. See Krause v. Chawla, No. 2:23-cv-02307-DAD-DB, 2024 WL 22 3637488, at *6 (E.D. Cal. Aug. 2, 2024), appeal dismissed sub nom. Frederick Mitchell et 23 al. v. Manjari Chawla et al., No. 24-6827, 2025 WL 4718842 (9th Cir. Dec. 17, 2025) 24 (citing Kinney v. California, No. 14-cv-01591-PSG-MRW, 2014 WL 12966059, at *3 25 (C.D. Cal. Sept. 10, 2014) (“[T]he Court finds that Cooper is entitled to absolute immunity 26 for . . . her initial complaint to the State Bar.”), aff’d sub nom. Kinney v. State Bar of Cal., 27 676 F. App’x 661, 663 (9th Cir. 2017)) (affirming immunity for State Bar complaint). 1 883 F.2d 819, 821 (9th Cir. 1989) (“witnesses are absolutely immune from suits for 2 damages under 42 U.S.C. § 1983 for testimony given at trial, or for testimony given during 3 adversarial pretrial proceedings”). Plaintiff’s opposition brief does not address this 4 immunity or its’ application. See ECF 15 at 12 (only presenting arguments about 5 California’s litigation and State Bar reporting privileges). Accordingly, and because 6 Plaintiff cannot plead additional facts to avoid immunity, the Court grants Defendant’s 7 Motion to Dismiss Plaintiff’s § 1983 and Bane Act claims without leave to amend. 8 B. California’s Litigation Privilege Also Bars Plaintiff’s Bane Act Claim 9 “California’s litigation privilege applies to any communication ‘(1) made in judicial 10 or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to 11 achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation 12 to the action.’” Graham-Sult v. Clainos, 756 F.3d 724, 741 (9th Cir. 2014) (quoting 13 Mansell v. Otto, 108 Cal. App. 4th 265, 271 (2003)). “The privilege ‘immunizes 14 defendants from virtually any tort liability (including claims for fraud), with the sole 15 exception of causes of action for malicious prosecution.’” Id. (quoting Olsen v. Harbison, 16 191 Cal. App. 4th 325, 333 (2010)). 17 Plaintiff’s Bane Act claim is also precluded by California’s litigation privilege. 18 Defendant filed the sworn statement at issue in a judicial proceeding to obtain sanctions 19 against Plaintiff for abusive discovery tactics. ECF 13 at 25; ECF 13-28 (Defendant’s 20 sworn declaration). “The California litigation privilege absolutely bars all claims but 21 malicious prosecution attacking ‘any publication required or permitted by law in the course 22 of a judicial proceeding to achieve the objects of the litigation.’” Duncan v. Cnty.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 BRIAN H SONG, Case No. 26-cv-01209-NC 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS WITHOUT LEAVE TO AMEND 13 THOMAS MOORE, Re: ECF 13 14 Defendant. 15 16 17 Plaintiff Brian Song asserts two causes of action against Thomas Moore arising 18 from a Santa Clara County Superior Court proceeding in which they represented opposing 19 parties. The Superior Court found Plaintiff committed (1) fraud on the court by omitting 20 key facts in a motion to compel discovery, and (2) abusive litigation tactics, including 21 threatening a sanctions motion. Defendant moves to strike the complaint or dismiss it. 22 Because witness immunity and California’s litigation privilege bar Plaintiff’s claims 23 against Defendant, the Court GRANTS Defendant’s Motion to Dismiss the complaint 24 without leave to amend. 25 I. BACKGROUND 26 A. Factual Background 27 Plaintiff alleges as follows. Plaintiff and Defendant are attorneys licensed to 1 Superior Court, Defendant made false and fabricated statements. Id. ¶ 9. The Superior 2 Court issued an order which relied upon Defendant’s statements. Id. ¶ 12. Then, 3 Defendant filed a disciplinary complaint against Plaintiff with the California State Bar 4 based on the Court’s order. Id. ¶ 13. The State Bar has indicated its’ intent to rely upon 5 the Superior Court’s order which places Plaintiff’s law license and livelihood at risk. Id. ¶ 6 14. 7 B. Procedural Background 8 On February 9, 2026, Plaintiff filed the complaint in the present action. ECF 1. On 9 April 13, 2026, Defendant moved to strike the complaint in accordance with California 10 Code of Civil Procedure Section 425.16 (anti-SLAPP statute) or, in the alternative, to 11 dismiss the complaint. ECF 13. Plaintiff opposed. ECF 14. Defendant replied. ECF 15. 12 The parties have consented to magistrate judge jurisdiction. ECF 9, 11. 13 II. LEGAL STANDARD 14 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 15 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To 16 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 17 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 19 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the 20 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail 21 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 22 2014). A court, however, need not accept as true “allegations that are merely conclusory, 23 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 24 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows 25 the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted 27 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. 1 III. DEFENDANT IS ENTITLED TO IMMUNITY FOR ALL OF PLAINTIFF’S 2 CLAIMS 3 A. Witness Immunity Bars Plaintiff’s Claims 4 Under long-standing common law doctrine, witnesses are given absolute immunity 5 from civil liability for their testimony in judicial proceedings. See Briscoe v. LaHue, 460 6 U.S. 325, 330–34 (1983); Franklin v. Terr, 201 F.3d 1098, 1101 (9th Cir. 2000) (witness 7 immunity is based on protecting the judicial process). The Supreme Court emphasized the 8 durability of this immunity by observing that it was even extended in cases where the 9 witnesses “knew the statements were false and made them with malice.” Briscoe, 460 U.S. 10 at 332. Witness immunity applies to testimony offered in sworn statements and in pretrial 11 proceedings. Burns v. Cty. of King, 883 F.2d 819, 823 (9th Cir. 1989). 12 Plaintiff cannot maintain any claims against Defendant because he is entitled to 13 witness immunity. The complaint alleges Defendant “made false and fabricated assertions 14 about Plaintiff in filings submitted to a California Superior Court” and, by extension of the 15 Court’s order relying on those assertions, the State Bar. Compl. ¶¶ 9–14. Defendant 16 functioned as a witness by submitting sworn statements regarding Plaintiff’s litigation 17 tactics in the Superior Court proceeding. ECF 13-28 (Defendant’s sworn declaration in 18 support of the motion for sanctions in the Santa Clara action). As such, even if 19 Defendant’s statements were false or fraudulent when made, he is entitled to witness 20 immunity. Briscoe, 460 U.S. at 332. This immunity also applies to individuals who make 21 State Bar complaints. See Krause v. Chawla, No. 2:23-cv-02307-DAD-DB, 2024 WL 22 3637488, at *6 (E.D. Cal. Aug. 2, 2024), appeal dismissed sub nom. Frederick Mitchell et 23 al. v. Manjari Chawla et al., No. 24-6827, 2025 WL 4718842 (9th Cir. Dec. 17, 2025) 24 (citing Kinney v. California, No. 14-cv-01591-PSG-MRW, 2014 WL 12966059, at *3 25 (C.D. Cal. Sept. 10, 2014) (“[T]he Court finds that Cooper is entitled to absolute immunity 26 for . . . her initial complaint to the State Bar.”), aff’d sub nom. Kinney v. State Bar of Cal., 27 676 F. App’x 661, 663 (9th Cir. 2017)) (affirming immunity for State Bar complaint). 1 883 F.2d 819, 821 (9th Cir. 1989) (“witnesses are absolutely immune from suits for 2 damages under 42 U.S.C. § 1983 for testimony given at trial, or for testimony given during 3 adversarial pretrial proceedings”). Plaintiff’s opposition brief does not address this 4 immunity or its’ application. See ECF 15 at 12 (only presenting arguments about 5 California’s litigation and State Bar reporting privileges). Accordingly, and because 6 Plaintiff cannot plead additional facts to avoid immunity, the Court grants Defendant’s 7 Motion to Dismiss Plaintiff’s § 1983 and Bane Act claims without leave to amend. 8 B. California’s Litigation Privilege Also Bars Plaintiff’s Bane Act Claim 9 “California’s litigation privilege applies to any communication ‘(1) made in judicial 10 or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to 11 achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation 12 to the action.’” Graham-Sult v. Clainos, 756 F.3d 724, 741 (9th Cir. 2014) (quoting 13 Mansell v. Otto, 108 Cal. App. 4th 265, 271 (2003)). “The privilege ‘immunizes 14 defendants from virtually any tort liability (including claims for fraud), with the sole 15 exception of causes of action for malicious prosecution.’” Id. (quoting Olsen v. Harbison, 16 191 Cal. App. 4th 325, 333 (2010)). 17 Plaintiff’s Bane Act claim is also precluded by California’s litigation privilege. 18 Defendant filed the sworn statement at issue in a judicial proceeding to obtain sanctions 19 against Plaintiff for abusive discovery tactics. ECF 13 at 25; ECF 13-28 (Defendant’s 20 sworn declaration). “The California litigation privilege absolutely bars all claims but 21 malicious prosecution attacking ‘any publication required or permitted by law in the course 22 of a judicial proceeding to achieve the objects of the litigation.’” Duncan v. Cnty. of 23 Humboldt, No. 23-cv-01847-JSC, 2024 WL 3228085, at *9 (N.D. Cal. June 27, 2024) 24 (quoting Silberg v. Anderson, 50 Cal.3d 205, 212 (1990), as modified (Mar. 12, 1990)). 25 “So, Plaintiff cannot maintain a Bane Act claim against Defendant [] for h[is] statements in 26 [Santa Clara] court filings logically related to the [] proceedings, even if those statements 27 ‘are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal.’” Id. (quoting 1 Plaintiff argues this privilege does not “extend to malicious, extra-judicial actions 2 designed to weaponize state machinery, as opposed to protected speech or routine 3 advocacy.” ECF 15 at 12 (emphasis in original). But the complaint only alleges that 4 Defendant submitted false statements in a Superior Court filing. Compl. ¶ 9. Such 5 statements are the exact type of conduct protected by the litigation privilege and do not 6 constitute “noncommunicative conduct” as Plaintiff suggests. Plaintiff’s authority 7 supports this finding. See Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 8 4th 1232, 1249 (2007) (there is “no communication that is more clearly protected by the 9 ligation privilege than the filing of a legal action”). Defendant’s court filings fall clearly 10 within the bounds of California’s litigation privilege.1 Accordingly, the Court grants 11 Defendant’s Motion to Dismiss Plaintiff’s Bane Act claim on this additional basis. 12 IV. EVEN IF DEFENDANT WAS NOT ENTITLED TO IMMUNITY, 13 PLAINTIFF’S CLAIMS FAIL 14 A. Plaintiff Cannot State a § 1983 Claim 15 “To state a claim for relief under section 1983, [a plaintiff] must plead two essential 16 elements: 1) that the Defendants acted under color of state law; and 2) that the Defendants 17 caused them to be deprived of a right secured by the Constitution and laws of the United 18 States.” Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997). Normally, private 19 parties are not acting under color of state law, and as such, no cause of action under 20 Section 1983 is available. Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991). The 21 Ninth Circuit has articulated four tests for determining whether a private person acted 22 under color of law: (1) the public function test, (2) the joint action test, (3) the government 23 nexus test, and (4) the government coercion or compulsion test. Franklin v. Fox, 312 F.3d 24 423, 445 (9th Cir. 2002). 25 1 “California’s statutory litigation privilege does not apply to bar an action brought 26 under 42 U.S.C. § 1983.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 851 (9th Cir. 2004). This is because of the Supremacy Clause of the U.S. Constitution. Kimes v. Stone, 27 84 F.3d 1121, 1127 (9th Cir. 1996) (citing Martinez v. California, 444 U.S. 277, 284 n.8 1 Because the complaint alleges “joint action,” the Court will only evaluate that test. 2 See Compl. ¶ 20 (“By willfully participating in joint action with state actors through the 3 misuse of state-created judicial and regulatory procedures, Defendant Moore acted under 4 color of state law”). The joint action test asks “whether state officials and private parties 5 have acted in concert in effecting a particular deprivation of constitutional rights.” Tsao v. 6 Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (internal quotation marks 7 omitted). This requirement can be satisfied “by showing that the private party was a 8 willful participant in joint action with the State or its agents.” Id. “Ultimately, joint action 9 exists when the state has so far insinuated itself into a position of interdependence with 10 [the private entity] that it must be recognized as a joint participant in the challenged 11 activity.” Id. 12 The complaint does not plausibly allege that Defendant jointly acted with the 13 Superior Court or State Bar. The complaint alleges that the Superior Court issued an order 14 relying upon Defendant’s false statements, and that the State Bar has indicated its’ intent to 15 rely upon the Superior Court’s order. Compl. ¶¶ 12–14. These conclusory allegations do 16 not demonstrate that Defendant “was a willful participant in joint action with the State or 17 its agents.” Tsao, 698 F.3d at 1140. The allegations lack any detail regarding how the 18 Superior Court or State Bar were so intertwined with Defendant beyond simply accepting 19 his testimony as true. See Ferguson v. Waid, 798 F. App’x 986, 988 (9th Cir. 2020) 20 (complaints to state bar association did not constitute action under color of state law). 21 These allegations cannot form the basis of a § 1983 claim. 22 Further, Plaintiff cannot allege deprivation of a constitutional right in his 23 professional reputation or license to practice law. Plaintiff’s cited authority stands for the 24 proposition that individuals cannot be excluded from an occupation for reasons which 25 contravene the Fourteenth Amendment. See Schware v. Bd. of Bar Exam. of State of N.M., 26 353 U.S. 232, 238–239 (1957); Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 27 1999). But Plaintiff does not allege that he has been excluded from the practice of law, or 1 violation in pursing one’s chosen profession, there must be “a complete prohibition on the 2 right to engage in a calling, and not [a] sort of brief interruption.” Guzman v. Shewry, 552 3 F.3d 941, 954 (9th Cir. 2009) (emphasis in original) (citation omitted); Dittman, 191 F.3d 4 at 1029 (requiring more than a “brief interruption” in one’s ability to pursue an occupation 5 to state a liberty interest). Nor can reputational harm alone state a viable § 1983 claim. 6 Miller v. California, 355 F.3d 1172, 1178 (9th Cir. 2004); Paul v. Davis, 424 U.S. 693, 7 712 (1976). Accordingly, the Court grants Defendant’s Motion to Dismiss without leave 8 to amend. 9 B. Plaintiff Cannot State a Bane Act Claim 10 The Bane Act provides a private right of action for interference with state or federal 11 rights by threat, intimidation, or coercion. Cal. Civ. Code § 52.1(b)–(c). To state 12 a Bane Act claim, Plaintiff must allege 1) interference with h[is] rights by “threat, 13 intimidation, or coercion” and 2) [Defendant’s] specific intent to violate h[is] rights. Reese 14 v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). “Speech alone is not 15 sufficient to support an action . . . , except upon a showing that the speech itself threatens 16 violence . . . ; and the person or group of persons against whom the threat is directed 17 reasonably fears that, because of the speech, violence will be committed against them or 18 their property and that the person threatening violence had the apparent ability to carry out 19 the threat.” Cal. Civ. Code § 52.1(k). 20 The complaint does not assert a Bane Act claim. The complaint alleges 21 Defendant’s “coercive conduct included knowingly supplying fabricated factual assertions 22 to invoke judicial authority and then leveraging the resulting order as a means of 23 regulatory intimidation by threatening and initiating professional discipline against 24 Plaintiff.” Compl. ¶ 26. The Bane Act explicitly states that “speech alone” is insufficient 25 to state a claim and there must be a threat that “violence will be committed against [the 26 plaintiff].” Cal. Civ. Code § 52.1(k). The complaint does not allege any acts of violence, 27 threatened or otherwise. Accordingly, the Court grants Defendant’s Motion to Dismiss 1 || V. CONCLUSION 2 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss without leave to 3 || amend as it would be futile. Because the Court grants Defendant’s Motion to Dismiss 4 || without leave to amend, this Order does not reach the anti-SLAPP issues in Defendant’s 5 || Motion. The Court orders that judgment be entered in favor of Defendant. 6 7 IT IS SO ORDERED. 8 9 || Dated: May 18, 2026 —> NATHANAEL M. COUSINS 10 United States Magistrate Judge 11 12
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