1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN PAVONE, Case No.: 3:21-cv-1743-BTM-BLM Plaintiff, 12 ORDER DENYING PLAINTIFF’S 13 APPLICATION FOR A v. TEMPORARY RESTRAINING 14 GEORGE CARDONA, Chief Trial ORDER 15 Counsel, Office of the Chief Trial 16 Counsel of the State Bar of [ECF NOS. 3, 4, 5, 6, 7, 8, 9, 10, California; LEAH WILSON, 11, 12] 17 Executive Director of the State Bar 18 of California; ANDREW VASICEK, Senior Attorney, Office of Chief Trial 19 Counsel, 20 Defendants. 21 22 23 24 25 26 27 28 1 Plaintiff Benjamin Pavone has filed an Application for a Temporary 2 Restraining Order (“TRO”). (ECF Nos. 3-12.) Plaintiff is the subject of an ongoing 3 California State Bar disciplinary proceeding, in which a Notice of Disciplinary 4 Charges was filed against him on August 11, 2020. (ECF No. 7-4.) In his 5 Application for a TRO, Plaintiff argues that “this Court should assume jurisdiction 6 over this matter and temporarily enjoin the pending State Bar proceedings to 7 review [various] serious constitutional defects [of the California State Bar 8 disciplinary system].” (ECF No. 3 at 26.) 9 “The standard for issuing a temporary restraining order is identical to the 10 standard for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. 11 v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also 12 Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 13 839 n.7 (9th Cir. 2001) (standards for issuing a TRO are “substantially identical” to 14 those for issuing a preliminary injunction). A plaintiff seeking a preliminary 15 injunction must establish: (1) a likelihood of success on the merits; (2) a likelihood 16 that plaintiff will suffer irreparable harm in the absence of preliminary relief; (3) that 17 the balance of equities tips in his favor; and (4) that an injunction is in the public 18 interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). 19 Defendants oppose Plaintiff’s Application for a TRO, arguing that: (1) this 20 district is not the proper venue, and (2) the Court must abstain from exercising 21 jurisdiction under the Younger doctrine. (ECF No. 19.) The Court held a hearing 22 on November 8, 2021. (ECF No. 22.) 23 I. Improper Venue 24 Defendants argue that venue is improper in the Southern District of California 25 because “Plaintiff does not allege that any Defendant resides within the Southern 26 District of California,” “the State Bar’s offices are located in San Francisco and Los 27 Angeles,” and “all the events or omissions that allegedly support the TRO 28 application have occurred and are occurring outside of this district.” (ECF No. 19 1 at 12.) 2 Under 28 U.S.C. § 1391(b), “[a] civil action may be brought in”: 3 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; 4 (2) a judicial district in which a substantial part of the events or 5 omissions giving rise to the claim occurred, or a substantial part of 6 property that is the subject of the action is situated; or 7 (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant 8 is subject to the court's personal jurisdiction with respect to such action. 9 28 U.S.C. § 1391(b). Further, “a natural person . . . shall be deemed to reside in 10 the judicial district in which that person is domiciled.” 28 U.S.C. § 1391(c)(1). 11 Plaintiff has named individuals George Cardona, Leah Wilson, and Andrew 12 Vasicek as defendants in this case. (ECF No. 1 at 10.) Plaintiff alleges that “[a]s 13 defendants do business throughout the state and conduct substantial activity by 14 hailing attorneys located all over the state into their preferred forums in Los 15 Angeles and San Francisco, this is a proper venue pursuant to 28 U.S.C. § 16 1391(b).” (Id. at 11.) Plaintiff failed to address Defendants’ venue challenge in his 17 reply brief. (See ECF No. 21.) Plaintiff does not allege that any of the named 18 Defendants reside in the Southern District of California. Plaintiff also does not 19 allege that any part of his California State Bar disciplinary proceedings have 20 occurred or are occurring within this District. Plaintiff has not met his burden to 21 show that venue is proper in this District. See Synoptek, LLC v. Synaptek Corp., 22 326 F. Supp. 3d 976, 986 (C.D. Cal. 2017) (“Once venue is challenged, the plaintiff 23 bears the burden of showing that venue is proper.”) (citing Piedmont Label Co. v. 24 Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979)); Lucero v. Ramirez, 25 2021 WL 1529932, at *8 (S.D. Cal. Apr. 16, 2021) (“Plaintiff has not satisfied his 26 burden to demonstrate that venue is proper in this district” because “[a]ll of 27 Plaintiff's claims arise out of Defendants’ conduct in connection with his disciplinary 28 1 proceedings before the State Bar Court. The FAC does not allege that the State 2 Bar Court was located in San Diego, or that any of the Defendants were in San 3 Diego when the alleged wrongdoing occurred, and Plaintiff does not argue 4 otherwise in his opposition.”). 5 II. Younger Abstention 6 Even if Plaintiff had met his burden to establish that venue is proper in this 7 District, the Court holds that it must abstain from exercising jurisdiction over this 8 matter under the Younger doctrine. 9 “Younger and its progeny generally direct federal courts to abstain from 10 granting injunctive or declaratory relief that would interfere with pending state 11 judicial proceedings. Absent extraordinary circumstances, abstention in favor of 12 state judicial proceedings is required if the state proceedings (1) are ongoing, (2) 13 implicate important state interests, and (3) provide the plaintiff an adequate 14 opportunity to litigate federal claims.” Hirsh v. Justs. of Supreme Ct. of State of 15 Cal., 67 F.3d 708, 712 (9th Cir. 1995) (internal citations and quotations omitted) 16 (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 17 (1982)). The Ninth Circuit has already held that ongoing California State Bar 18 disciplinary proceedings satisfy the three Middlesex prongs for purposes of 19 Younger abstention. See Canatella v. California, 404 F.3d 1106, 1110-11 (9th Cir. 20 2005) (“California's attorney discipline proceedings are judicial in character for 21 purposes of Younger abstention,” “implicate important state interests,” and 22 “provide [a defendant] with an adequate opportunity to litigate his federal 23 constitutional claims”). 24 // 25 // 26 // 27 // 28 // 1 With respect to the extraordinary circumstances exception to Younger 2 abstention, Plaintiff points to “the exceptional nature of [his] system-wide criticism 3 of the California discipline system1,” as well as the implication of free speech rights 4 in his case.2 (See ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN PAVONE, Case No.: 3:21-cv-1743-BTM-BLM Plaintiff, 12 ORDER DENYING PLAINTIFF’S 13 APPLICATION FOR A v. TEMPORARY RESTRAINING 14 GEORGE CARDONA, Chief Trial ORDER 15 Counsel, Office of the Chief Trial 16 Counsel of the State Bar of [ECF NOS. 3, 4, 5, 6, 7, 8, 9, 10, California; LEAH WILSON, 11, 12] 17 Executive Director of the State Bar 18 of California; ANDREW VASICEK, Senior Attorney, Office of Chief Trial 19 Counsel, 20 Defendants. 21 22 23 24 25 26 27 28 1 Plaintiff Benjamin Pavone has filed an Application for a Temporary 2 Restraining Order (“TRO”). (ECF Nos. 3-12.) Plaintiff is the subject of an ongoing 3 California State Bar disciplinary proceeding, in which a Notice of Disciplinary 4 Charges was filed against him on August 11, 2020. (ECF No. 7-4.) In his 5 Application for a TRO, Plaintiff argues that “this Court should assume jurisdiction 6 over this matter and temporarily enjoin the pending State Bar proceedings to 7 review [various] serious constitutional defects [of the California State Bar 8 disciplinary system].” (ECF No. 3 at 26.) 9 “The standard for issuing a temporary restraining order is identical to the 10 standard for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. 11 v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also 12 Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 13 839 n.7 (9th Cir. 2001) (standards for issuing a TRO are “substantially identical” to 14 those for issuing a preliminary injunction). A plaintiff seeking a preliminary 15 injunction must establish: (1) a likelihood of success on the merits; (2) a likelihood 16 that plaintiff will suffer irreparable harm in the absence of preliminary relief; (3) that 17 the balance of equities tips in his favor; and (4) that an injunction is in the public 18 interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). 19 Defendants oppose Plaintiff’s Application for a TRO, arguing that: (1) this 20 district is not the proper venue, and (2) the Court must abstain from exercising 21 jurisdiction under the Younger doctrine. (ECF No. 19.) The Court held a hearing 22 on November 8, 2021. (ECF No. 22.) 23 I. Improper Venue 24 Defendants argue that venue is improper in the Southern District of California 25 because “Plaintiff does not allege that any Defendant resides within the Southern 26 District of California,” “the State Bar’s offices are located in San Francisco and Los 27 Angeles,” and “all the events or omissions that allegedly support the TRO 28 application have occurred and are occurring outside of this district.” (ECF No. 19 1 at 12.) 2 Under 28 U.S.C. § 1391(b), “[a] civil action may be brought in”: 3 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; 4 (2) a judicial district in which a substantial part of the events or 5 omissions giving rise to the claim occurred, or a substantial part of 6 property that is the subject of the action is situated; or 7 (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant 8 is subject to the court's personal jurisdiction with respect to such action. 9 28 U.S.C. § 1391(b). Further, “a natural person . . . shall be deemed to reside in 10 the judicial district in which that person is domiciled.” 28 U.S.C. § 1391(c)(1). 11 Plaintiff has named individuals George Cardona, Leah Wilson, and Andrew 12 Vasicek as defendants in this case. (ECF No. 1 at 10.) Plaintiff alleges that “[a]s 13 defendants do business throughout the state and conduct substantial activity by 14 hailing attorneys located all over the state into their preferred forums in Los 15 Angeles and San Francisco, this is a proper venue pursuant to 28 U.S.C. § 16 1391(b).” (Id. at 11.) Plaintiff failed to address Defendants’ venue challenge in his 17 reply brief. (See ECF No. 21.) Plaintiff does not allege that any of the named 18 Defendants reside in the Southern District of California. Plaintiff also does not 19 allege that any part of his California State Bar disciplinary proceedings have 20 occurred or are occurring within this District. Plaintiff has not met his burden to 21 show that venue is proper in this District. See Synoptek, LLC v. Synaptek Corp., 22 326 F. Supp. 3d 976, 986 (C.D. Cal. 2017) (“Once venue is challenged, the plaintiff 23 bears the burden of showing that venue is proper.”) (citing Piedmont Label Co. v. 24 Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979)); Lucero v. Ramirez, 25 2021 WL 1529932, at *8 (S.D. Cal. Apr. 16, 2021) (“Plaintiff has not satisfied his 26 burden to demonstrate that venue is proper in this district” because “[a]ll of 27 Plaintiff's claims arise out of Defendants’ conduct in connection with his disciplinary 28 1 proceedings before the State Bar Court. The FAC does not allege that the State 2 Bar Court was located in San Diego, or that any of the Defendants were in San 3 Diego when the alleged wrongdoing occurred, and Plaintiff does not argue 4 otherwise in his opposition.”). 5 II. Younger Abstention 6 Even if Plaintiff had met his burden to establish that venue is proper in this 7 District, the Court holds that it must abstain from exercising jurisdiction over this 8 matter under the Younger doctrine. 9 “Younger and its progeny generally direct federal courts to abstain from 10 granting injunctive or declaratory relief that would interfere with pending state 11 judicial proceedings. Absent extraordinary circumstances, abstention in favor of 12 state judicial proceedings is required if the state proceedings (1) are ongoing, (2) 13 implicate important state interests, and (3) provide the plaintiff an adequate 14 opportunity to litigate federal claims.” Hirsh v. Justs. of Supreme Ct. of State of 15 Cal., 67 F.3d 708, 712 (9th Cir. 1995) (internal citations and quotations omitted) 16 (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 17 (1982)). The Ninth Circuit has already held that ongoing California State Bar 18 disciplinary proceedings satisfy the three Middlesex prongs for purposes of 19 Younger abstention. See Canatella v. California, 404 F.3d 1106, 1110-11 (9th Cir. 20 2005) (“California's attorney discipline proceedings are judicial in character for 21 purposes of Younger abstention,” “implicate important state interests,” and 22 “provide [a defendant] with an adequate opportunity to litigate his federal 23 constitutional claims”). 24 // 25 // 26 // 27 // 28 // 1 With respect to the extraordinary circumstances exception to Younger 2 abstention, Plaintiff points to “the exceptional nature of [his] system-wide criticism 3 of the California discipline system1,” as well as the implication of free speech rights 4 in his case.2 (See ECF No. 3 at 34.) The Court finds that Plaintiff has not 5 established extraordinary circumstances to warrant an exception to Younger 6 abstention. See Hirsh, 67 F.3d at 713-15 (arguments that the California State Bar 7 justices and State Bar court judges were biased and that the California State Bar 8 disciplinary system’s structure was unconstitutional did not qualify as exceptions 9 to abstention); Canatella, 404 F.3d at 1112 (“the extraordinary circumstances 10 exception d[id] not apply” where the plaintiff argued that “the California Supreme 11 Court ha[d] an inherent conflict of interest in considering constitutional challenges 12 to state bar disciplinary proceedings” and that “the state bar statutes [were] 13 patently unconstitutional”). 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 22 23 1 Plaintiff’s system-wide criticism of the California State Bar disciplinary system includes allegations of corruption related to the actions of attorney Thomas Girardi, selective prosecution of solo and small firm attorneys, deficient 24 charging standards for ethical offenses, disciplinary charges that infringe on constitutional rights, insufficient pretrial procedures, unresponsiveness to pretrial challenges, the imposition of impermissible costs related to 25 disciplinary proceedings, and rulings by the State Bar courts that are not sufficiently substantive. (See ECF No. 3.) 26 2 Plaintiff cannot rely on Dombrowski v. Pfister, 380 U.S. 479 (1965) to create a general exception to Younger 27 abstention for free speech related cases. See Andersen v. United States, 298 F.3d 804, 810 (9th Cir. 2002) (characterizing Younger as “limiting [Dombrowski] to its facts and abstaining despite an underlying First 28 Amendment claim”). 1 lll. Conclusion 2 Because Plaintiff has not met his burden to establish that venue is proper in 3 || this District, and because the Court must abstain from exercising jurisdiction over 4 ||this case under the Younger doctrine®, Plaintiff's Application for a TRO is DENIED. 5 6 || IT IS SO ORDERED. 7 8 || Dated: November 19, 2021
10 Honora le Barry Ted Mosko United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
28 Because the Court denies Plainti's TRO application on the basis of venue and Younger abstention, it does not