(PS) Henreid v. Haynes

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL HENREID, No. 2:23-cv-2797-DJC-SCR 12 Plaintiff, 13 v. ORDER AND AMENDED FINDINGS AND RECOMMENDATIONS 14 RAYMOND NEAL HAYNES, DAVID SOTELO, and RICHARD SKAGGS, 15 Defendants. 16 17 18 Plaintiff Paul Henreid is proceeding pro se in this action, which was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the undersigned is a joint motion by Defendants Richard Skaggs and Raymond Haynes to 21 dismiss this action for failure to state a claim (ECF No. 17), their joint motion for $10,000 in 22 sanctions (ECF No. 18), and Defendant Judge David Sotelo’s motion to dismiss this action both 23 for lack of subject matter jurisdiction and failure to state a claim (ECF No. 19). On March 18, 24 2025, the undersigned recommended the motions to dismiss be granted without leave to amend 25 and the motion for sanctions be granted. ECF No. 37. Plaintiff then filed objections to the 26 findings and recommendations (ECF No. 39) and a motion seeking leave to file a second 27 amended complaint (ECF No. 40). Plaintiff also moved to recuse the undersigned. ECF No. 41. 28 The undersigned issues these amended findings and recommendations to address Plaintiff’s 1 objections and new motions, along with the other pending motions. 2 In this action, Plaintiff is effectively seeking to relitigate in federal court a defamation 3 lawsuit that he pursued and lost in state court. Plaintiff alleges defamation and other causes of 4 action against Skaggs (the defendant in the underlying defamation lawsuit), Haynes (who 5 represented Skaggs in that lawsuit), and Judge Sotelo (the state court judge in that lawsuit). As 6 explained below, Plaintiff’s asserted causes of action are either barred by the litigation privilege, 7 absolute immunity, or are not cognizable. The undersigned accordingly recommends that the 8 Court dismiss all causes of action without leave to amend and grant the motion for sanctions in 9 full. The undersigned also denies Plaintiff’s recusal motion. 10 BACKGROUND AND PROCEDURAL HISTORY 11 I. The Underlying Defamation Litigation in State Court 12 In 2018, Plaintiff was a member of the Oso Town Council (“Council”), a local group in an 13 unincorporated community in Los Angeles County, until a 20-year-old allegation of criminal 14 activity resurfaced. ECF No. 17-1 at 6. In 1999, Plaintiff had been accused of using a hidden 15 camera to record sexual encounters with various dates without their knowledge in Missouri. Id. at 16 179. The charges were later expunged pursuant to Missouri law, but Plaintiff still agreed to 17 resign from the Council after it learned about this history. Id. at 6-7. When someone applied to 18 fill the vacancy, Defendant Skaggs—then-president of the Council—sent an email to the other 19 Council members stating that the Council would not be deceived like it was with “Paul Henreid, 20 who has a history of criminal convictions[.]”1 Id. at 7. 21 Based on Skaggs’ email, Plaintiff filed a lawsuit against him in Los Angeles County 22 Superior Court (“LASC”), Henreid v. Skaggs, Case No. 19STCV20592 (“Henreid I”), alleging 23 defamation per se and invasion of privacy by false light. Id. Defendant Haynes represented 24 Skaggs in that action, while Defendant Judge Sotelo, who has since retired from the LASC, 25 presided over the jury trial. ECF No. 5 (First Amended Complaint (“FAC”)) at 6. 26 Prior to trial, Judge Sotelo ruled that Plaintiff was either a public figure or involved in a 27 1 The email contained a brief additional phrase characterizing Plaintiff’s alleged criminal conduct 28 1 matter of public concern and therefore needed to prove actual malice by clear and convincing 2 evidence to prevail on his defamation claim. ECF No. 17-1 at 8. At trial, the jury found that 3 although Skaggs had made false statements about Plaintiff, Plaintiff failed to show by clear and 4 convincing evidence that Skaggs either knew the statements were false or had serious doubts 5 about their veracity. Id. at 10. Judge Sotelo entered judgment against Plaintiff. 6 Plaintiff appealed. See Henreid v. Skaggs, Case No. B314741 (Ct. of App. 2d App. Dist.) 7 (“Henreid II”); ECF No. 17-1 at 10. On February 10, 2023, while the appeal was pending and 8 after Judge Sotelo’s retirement, Plaintiff moved the LASC to strike from the trial court record any 9 allegations of criminal conduct by Plaintiff (collectively, the “Representations”).2 ECF No. 17-1 10 at 29-30. He also moved to sanction Haynes and hold him in contempt for spreading the 11 Representations through an objection to Plaintiff’s proposed Statement on Appeal, despite 12 knowing the Representations were false. Id. at 30. Plaintiff argued that although Haynes had 13 invoked the litigation privilege in an email to Plaintiff, this privilege did not apply to 14 “premeditated, libelous, and criminal misrepresentations to courts[.]” Id. at 37, 43. Haynes and 15 Skaggs opposed the motion for sanctions on April 27, 2023. Id. at 46, 51. 16 On July 10, 2023, LASC Judge Anne Richardson granted Plaintiff’s motion to strike the 17 Representations from Haynes’ objection to Plaintiff’s proposed Statement on Appeal. ECF No. 18 21-1 at 42, 44. Judge Richardson also struck from the record and sealed any reference to the 19 Representations in the objection, the opposition brief to Plaintiff’s motion for sanctions, and her 20 own order. Id. at 42-43. Citing California Rules of Court, Rule 2.550(d), she held there was “an 21 overriding interest in protecting” Plaintiff from having the erroneous Representations reproduced 22 in the public sphere. Id. at 43. Judge Richardson denied the request for sanctions, however, 23 because she found insufficient evidence that Skaggs had engaged in or agreed to any deceit or 24 collusion. Id. She also advised Plaintiff that her rulings extended only to the trial court record, 25 and that sealing such Representations in the appellate record would require a separate request to 26

27 2 As the FAC in the instant action indicates, the specific Representations to which Plaintiff objects are that he has a “conviction for statutory rape” and was “charge[d]” with “distributing 28 1 the appellate court. Id. By then Plaintiff had already sought sanctions in Henreid II based on the 2 reiteration of Representations in the appellate record. ECF No. 17-1 at 62-63, 82. 3 On February 16, 2024, the appellate court in Henreid II affirmed the LASC’s judgment 4 against Plaintiff. ECF No. 17-1 at 5, 27. Because Plaintiff had not objected to Skaggs’ pre-trial 5 motion concerning a heightened standard of proof, the Henreid II court held Plaintiff failed to 6 preserve any such objection for appeal. Id. at 15. Plaintiff also failed to provide an adequate 7 record for review of that issue. Id. at 16. The appellate court also found that Plaintiff failed to 8 show that Judge Sotelo had erred in his rulings in Henreid I. Id. at 20. 9 The Henreid II court also denied Plaintiff’s motion for sanctions against Haynes, finding 10 he failed to show that Haynes’ conduct was sanctionable under the California Rules of Court. Id. 11 at 26. As to Plaintiff’s request to redact any reference to the Representations in the appellate 12 record, the court found that he had failed to file a properly noticed motion to that effect. Id. 13 II. Allegations in the First Amended Complaint 14 Plaintiff, an attorney in good standing with the California Bar, commenced this action on 15 December 1, 2023. The initial complaint named Haynes as the sole defendant. ECF No. 1. The 16 operative FAC, filed May 13, 2024, adds Skaggs and Judge Sotelo as defendants. 17 The FAC alleges that in filings made in Henreid I, Skaggs and Haynes “intentionally and 18 repeatedly” lied about Plaintiff having a “conviction for statutory rape, and the charges for 19 distributing child pornography and child molestation … [and] child abuse” (again, collectively 20 referred to as the “Representations”). FAC at 8. Judicially noticed government records establish 21 that the Representations are not true. Id. Plaintiff accuses Skaggs and Haynes of intentionally 22 discrediting and defaming Plaintiff through these knowingly false assertions, including by using 23 his name instead of “Plaintiff.” Id. at 8-9. Skaggs and Haynes sought to use court filings to 24 spread the Representations online, insofar as searching Plaintiff’s name would yield snippets of 25 filings that repeated the Representations. Id. at 9. 26 The FAC further alleges that Judge Sotelo’s ruling on Plaintiff’s motion for summary 27 judgment in Henreid I, dated February 2, 2021, stated that one claim “factually involved a ‘sex 28 crime’ with a minor[.]” Id. at 23. The FAC alleges that this statement, once republished online, 1 would make Plaintiff look guilty of a crime even though the charges were dismissed decades ago 2 and the case is deemed confidential under Missouri law. Id. at 24-25. Plaintiff moved for 3 reconsideration of Judge Sotelo’s summary judgment ruling, but Judge Sotelo’s amended ruling 4 still contained these “defamatory fabrications[.]” Id. at 25. Judge Sotelo then repeated them in a 5 subsequent ruling on a different motion. Id. 6 On June 11, 2021, the jury in Henreid I returned a verdict in Skaggs’ favor because 7 Plaintiff failed to show that Skaggs knew the Representations were false or acted with reckless 8 disregard for that possibility. Id. at 20. The FAC argues that the jury only applied this standard 9 because Judge Sotelo ruled that Plaintiff was a public figure. Id. The FAC also alleges that 10 Judge Sotelo should not have even submitted the truth of the Representations to the jury, and that 11 he did so because it provided another opportunity for Plaintiff to lose. Id. at 20, 25. 12 On October 11, 2022, Plaintiff emailed Skaggs and Haynes a “Demand to Retract 13 Defamatory Statements From Public Court Record[.]” Id. at 9. Haynes denied that he had done 14 anything wrong and threatened to move for Rule 11 sanctions if Plaintiff did not withdraw the 15 demand.3 Id. Haynes filed for such sanctions on the same day that Plaintiff moved for summary 16 judgment in Henreid I, on the basis that whether Plaintiff had a criminal record was a question of 17 law to be resolved by a judge rather than a jury. Id. at 9-10. 18 The FAC also alleges that Judge Sotelo emboldened Haynes and Skaggs by continuously 19 ruling in their favor, even when the law unambiguously favored Plaintiff. Id. at 10. Judge Sotelo 20 improperly prevented Plaintiff from showing the jury laws that Plaintiff believes would have 21 exposed Judge Sotelo’s erroneous legal rulings. Id. at 19. He allowed Haynes to testify at trial 22 because Skaggs was absent, and to submit irrelevant newspaper articles during cross-examination 23 of Plaintiff, despite this exceeding the scope of permissible cross-examination. Id. at 28. Judge 24 Sotelo retired one day after Plaintiff filed his opening appellate brief in Henreid II. Id. at 10. 25 Plaintiff also complains of Defendants’ actions with respect to Henreid II. Id. On January 26 13, 2023, despite being retired, Judge Sotelo issue a Settled Statement of Appeal for the Record 27 3 One presumes that Plaintiff meant Rule 11 of the Federal Rules of Criminal Procedure, even 28 1 on Appeal (“Settled Statement”), which still included the Representations. Id. at 11. Haynes then 2 admitted during appellate oral argument on November 30, 2023 that he had made mistakes, only 3 to repeat the Representations thirty seconds later. Id. 4 The FAC asserts the following causes of action and theories of liability: (1) defamation 5 per se based on the allegation that Defendants repeated the Representations while Henreid I was 6 on appeal, both in the trial court record and the Settled Statement; (2) fraud based on Defendants’ 7 attempt to improperly leverage the legal system, by spreading the Representations from court 8 filings online so Defendants could later use the affirmative defense in some states that protects 9 reliance on “contents of public records”; (3) negligence as to Skaggs and Haynes, for making the 10 damaging and clearly erroneous Representations; and (4) negligence per se as to Skaggs and 11 Haynes, because charges from a dismissed case are made confidential by California law, and 12 disclosure of those charges was therefore illegal.4 ECF No. 5 at 14-15, 36 (citing Cal. Penal Code 13 § 13303; Cal. Rules of the Court, Rule 2.503). 14 The FAC separately alleges tax fraud based on an income tax notice Plaintiff received on 15 August 30, 2023, alleging he owed $11,890.95 to the Franchise Tax Board (“FTB”) for the 2020 16 tax year. Id. at 34. Plaintiff lived in Oklahoma between 2018 and 2021, yet he never received 17 such a notice for any other year that he was not living and earning an income in California. Id. at 18 34-35. In October 2023, the FTB removed the income tax notice and explained it had stemmed 19 from Plaintiff having an active law license throughout 2020 and not filing a return, despite his law 20 license being active since 2001. Id. at 34. Plaintiff ties this notice to Haynes’ status as a veteran 21 California litigator with many government connections. Id. at 35. It accuses Defendants of 22 colluding with the government to retaliate against Plaintiff for questioning Skaggs about the 23 Council, its use of funds, and its relationship with the IRS. Id. 24 The FAC seeks $1,000,000 in economic and non-economic damages, for pain and 25 suffering, and punitive damages. Id. at 37. It also seeks injunctive relief enjoining Defendants 26

27 4 Although the FAC’s title page also alleges “Invasion of Privacy – False Light and Intrusion Upon Seclusion” and “Intentional Infliction of Emotional Distress” (“IIED”), the FAC itself does 28 1 from continuing to spread the Representations and compelling them to redact or delete them from 2 the public court record, databases, and any other records on the internet or in print. Id. 3 III. Pending Motions 4 Defendants Skaggs and Haynes filed both of their motions on August 24, 2024. ECF Nos. 5 17-18. Judge Sotelo filed his motion to dismiss the FAC as against him on September 9, 2024. 6 ECF No. 19. Plaintiff has filed opposition briefs and other responses to the motions and 7 Defendants have filed replies.5 The motions were fully briefed and taken under submission 8 without oral argument. 9 On March 18, 2025, the undersigned recommended the motions to dismiss be granted 10 without leave to amend and the motion for sanctions be granted. ECF No. 37. Plaintiff then filed 11 objections to the findings and recommendations (ECF No. 39) and a motion seeking leave to file 12 a second amended complaint (ECF No. 40). Plaintiff also moved to recuse the undersigned 13 pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455. ECF No. 41. Much of Plaintiff’s recent filings 14 concern an explosion and fire that reportedly destroyed much of his property on March 27, 2025 15 and the purported government cover-up concerning the assassination of John F. Kennedy. 16 LEGAL STANDARDS 17 I. Motion to Dismiss 18 A defendant may move to dismiss a claim under Rule 12(b)(1) if the court lacks subject- 19 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Alternatively, a defendant may move to dismiss a 20 claim under Rule 12(b)(6) if the allegation “fail[s] to state a claim upon which relief can be 21 granted.” Fed. R. Civ. P. 12(b)(6). To survive, the plaintiff’s complaint “must contain sufficient 22 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 23 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 24 (2007)). 25 A claim is facially plausible “when the plaintiff pleads factual content that allows the 26

27 5 On March 4, 2025, Plaintiff filed notice of related cases, including Henreid I and Henreid v. Feuer et al, Case No. 2:25-cv-01379-DSF-PVC (C.D. Cal. Feb. 18, 2025). ECF No. 36. No 28 1 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 2 Iqbal, 556 U.S. at 678. This standard is a “context-specific task that requires the reviewing court 3 to draw on its judicial experience and common sense,” Iqbal, 556 U.S. at 679, and to “draw all 4 reasonable inferences in favor of the nonmoving party.” Boquist v. Courtney, 32 F.4th 764, 773 5 (9th Cir. 2022) (quoting Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 6 938, 945 (9th Cir. 2014) (internal quotation marks omitted)). Stating a claim “requires more than 7 labels and conclusions, and a formulaic recitation of the elements.” Twombly, 550 U.S. at 555. 8 The factual allegations must be sufficient to “raise a right to relief above the speculative level” 9 and “raise a reasonable expectation that discovery will reveal evidence” needed to support the 10 claim. Id. at 556. 11 On a Rule 12(b)(6) motion, the court may consider all materials incorporated into the 12 complaint by reference, as well as evidence properly subject to judicial notice. Weston Fam. 13 P’ship LLLP v. Twitter, Inc., 29 F.4th 611, 617-18 (9th Cir. 2022). “Ultimately, dismissal is 14 proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of 15 facts to support its claims.” Boquist, 32 F.4th at 773–74 (internal citation and quotation marks 16 omitted) (cleaned up). A pro se plaintiff's factual allegations are interpreted liberally on a 17 12(b)(6) motion, and the court must apply a less stringent pleading standard than if the plaintiff 18 was represented by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). 19 The court may dismiss for failure to state a claim when the allegations of the complaint 20 and judicially noticeable materials establish an affirmative defense or other bar to recovery, such 21 as the expiration of the statute of limitations. See Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th 22 Cir. 2013) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)); see also Goddard v. Google Inc., 23 640 F. Supp. 2d 1193, 1199, n. 5 (N.D. Cal. 2009) (noting that “affirmative defenses routinely 24 serve as a basis for granting Rule 12(b)(6) motions where the defense is apparent from the face of 25 the [c]omplaint”). However, dismissal under Rule 12(b)(6) is improper if the allegations of the 26 complaint and judicially noticeable materials concerning the defense raise disputed issues of fact. 27 ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (citing Scott v. 28 Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam)). 1 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 2 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 3 Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 4 II. Motion for Sanctions 5 Whenever filing a pleading, written motion, or other paper with the court, the attorney or 6 unrepresented party implicitly:

7 certifies to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 8 (1) it is not being presented for any improper purpose, such as to 9 harass, cause unnecessary delay, or needlessly increase the cost of litigation; 10 (2) the claims, defenses, and other legal contentions are warranted 11 by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; 12 (3) the factual contentions have evidentiary support or, if specifically 13 so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and 14 (4) the denials of factual contentions are warranted on the evidence 15 or, if specifically so identified, are reasonably based on belief or a lack of information. 16 17 Fed. R. Civ. P. 11(b). When making such certification, a party or its counsel has a duty to both 18 “conduct a reasonable factual investigation” and “perform adequate legal research that confirms 19 whether the theoretical underpinnings of the complaint are ‘warranted by existing law or a good 20 faith argument for an extension, modification or reversal of existing law.’” Christian v. Mattel, 21 Inc, 286 F. 3d 1118, 1127 (9th Cir. 2002) (quoting Golden Eagle Distrib. Corp. v. Burroughs 22 Corp., 801 F.2d 1531, 1537 (9th Cir.1986)). 23 A party may move for the court to award sanctions based on a violation of Rule 11(b) by 24 filing a separate motion outlining the specific conduct that allegedly violates this rule. Fed. R. 25 Civ. P. 11(c)(1)-(2). When the complaint is the subject of the motion, the court must ask “(1) 26 whether the complaint is legally or factually ‘baseless’ from an objective perspective, and (2) if 27 the attorney has conducted ‘a reasonable and competent inquiry’ before signing and filing it.” 28 Christian, 286 F. 3d at 1127 (citing Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997)). 1 If the court grants the motion, the amount of such sanction must be limited to an amount 2 sufficient “to deter repetition of the conduct or comparable conduct by others similarly situated.” 3 Fed. R. Civ. P. 11(c)(4). This can include, “if imposed on motion and warranted for effective 4 deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s 5 fees and other expenses directly resulting from the violation.” Id. 6 III. Recusal 7 Under 28 U.S.C. § 455(a), “recusal is required if ... [the judge’s] ‘impartiality might 8 reasonably be questioned.’” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 916 9 (2004). The fact that a judge made rulings adverse to a party, standing alone, is not a basis for 10 disqualification under Section 455. See Liteky v. United States, 510 U.S. 540, 555 (1994); United 11 States v. Hernandez-Escarsega, 886 F.2d 1560, 1581 (9th Cir. 1989). 12 The standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: 13 “[W]hether a reasonable person with knowledge of all the facts would conclude that the judge’s 14 impartiality might reasonably be questioned.” United States v. Hernandez, 109 F.3d 1450, 1453- 15 54 (9th Cir. 1997) (per curiam) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 16 1986)) (internal quotation marks omitted). Impermissible “personal bias” is generally a bias 17 derived from extra-judicial origins, as opposed to an opinion formed during the course of 18 litigation. Craven v. United States, 22 F.2d 605, 607 (1st Cir. 1927); accord United States v. 19 Carignan, 600 F.2d 762, 763-64 (9th Cir. 1979). 20 ANALYSIS 21 I. Judicial Notice 22 A court may judicially notice facts “not subject to reasonable dispute because,” inter alia, 23 they “can be accurately and readily determined from sources whose accuracy cannot reasonably 24 be questioned.” Fed. R. Evid. 201(b)(2). 25 A. Defendants’ Requests 26 Defendants Haynes and Skaggs seek judicial notice of (1) the decision in Henreid II, filed 27 February 16, 2024 (Exhibit 1) (ECF No. 17-1 at 4-27); (2) Plaintiff’s motion for sanctions in 28 Henreid I, filed February 10, 2023 (Exhibit 2) (ECF No. 17-1 at 28-44); (3) Skagg’s opposition 1 thereto, filed in May 2023 (Exhibit 3) (ECF No. 17-1 at 45-60); (4) Plaintiff’s motion for 2 sanctions in Henreid II (Exhibit 4) (ECF No. 17-1 at 61-84); (5) Designation of Record on Appeal 3 by Plaintiff (Exhibit 5) (ECF No. 17-1 at 85-90); (6) Plaintiff’s motion to augment the record of 4 Henreid II (Exhibit 6) (ECF No. 17-1 at 91-104); (7) a Minute Order on the Settled Statement 5 (Exhibit 7) (ECF No. 17-1 at 105-106); (8) a Record of Proceedings on the Settled Statement 6 (Exhibit 8) (ECF No. 17-1 at 107-167); (9) the Final Settled Statement (Exhibit 9) (ECF No. 17-1 7 at 168-177); and (10) an article entitled From 1999: Law student who taped sex partners gets jail 8 term by The Post-Dispatch, dated August 28, 1999 (Exhibit 10) (ECF No. 17-1 at 178-180). 9 Plaintiff objects to judicial notice of Exhibits 1, 3, 5, and 7-10. Plaintiff first argues that 10 these documents are not relevant at the pleading stage because the court must take the pleadings 11 as true. ECF No. 23 at 1. To the contrary, it is axiomatic that a court may take judicial notice of 12 properly noticeable records on a motion to dismiss. See Khoja v. Orexigen Therapeutics, Inc, 899 13 F.3d 988, 999 (9th Cir. 2018) (“[a] court may take judicial notice of matters of public record 14 without converting a motion to dismiss into a motion for summary judgment”). 15 As to Exhibit 1, Plaintiff then argues that California appellate opinions are not citeable if 16 unpublished. ECF No. 23 at 2 (citing Cal. Rules of the Court, Rule 8.1115). The applicable rule 17 includes an exception for cases “relevant under the doctrines of law of the case, res judicata, or 18 collateral estoppel[,]” which are among the arguments Defendants Haynes and Skaggs raise here. 19 Cal. Rules of the Court, Rule 8.1115(b)(1). In any event, the California Rules of Court do not 20 apply in federal court. 21 Plaintiff then argues that as to Exhibit 1, no preclusive effect or litigation privilege 22 attaches to sanction motions. ECF No. 23 at 2 (citing Wright v. Ripley, 65 Cal.App.4th 1189, 23 1191 (Cal. Ct. App. 1998); In re Marriage of Anka & Yeager, 31 Cal. App. 5th 1115, 1121 (Cal. 24 Ct. App. 2019)). As to Exhibit 3, Plaintiff argues that the relevant motion for sanctions was not 25 fully briefed because of the timing of service. ECF No. 23 at 2-3. As to Exhibits 7-9, Plaintiff 26 accuses Defendants of using the “convoluted mess” of litigation surrounding the Settled 27 Statement to selectively have specific facts judicially noticed. Id. at 3. 28 These arguments are more relevant—if at all—to the merits of the pending motions, rather 1 than the request for judicial notice. Additionally, these arguments fail to distinguish between 2 judicial notice of the documents and judicial notice of the allegations or assertions therein. While 3 it is true that a court generally cannot consider as true the content of judicially noticed documents, 4 documents remain noticeable for other purposes. See Khoja, 899 F.3d at 999-1000. 5 Plaintiff argues that Exhibit 5 is irrelevant, and that its admission would violate the Best 6 Evidence Rule because it was not the operative Designation of Record. ECF No. 23 at 3. After 7 the Court of Appeal granted Plaintiff’s motion to augment the record in Henreid II, it issued a 8 different Designation of Record that replaced the original. Id. The Best Evidence Rule provides 9 only that unless the Federal Rules of Evidence state otherwise, a litigant can only prove the 10 “content” of a “writing, recording, or photograph” through an original copy. Fed. R. Evid. 1002. 11 The original Designation of Record is still relevant if Defendants seek to make arguments based 12 on what that Designation said, even if it did not remain the operative version. 13 Finally, Plaintiff argues that Exhibit 10 is a veiled attempt to inject an out-of-court 14 statement at the pleading stage to confuse the Court by repeating the same purported falsehoods 15 Defendants have spread about Plaintiff. ECF No. 23 at 4-5; ECF No. 24 at 2. Plaintiff again 16 mischaracterizes the extent of any judicial notice. The Ninth Circuit has permitted judicial notice 17 of published articles as proof of “what was in the public realm at the time, not whether the 18 contents of those articles were in fact true.” Von Saher v. Norton Simon Museum of Art at 19 Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (citing Premier Growth Fund v. Alliance Capital 20 Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2001)). Defendants’ motion cites the article to challenge 21 the FAC’s defamation claim and the assertion that “no such allegations” of criminal conduct 22 “ever existed…” ECF No. 17 at 8 (citing FAC at 5-6) (emphasis added). Challenging this only 23 requires that the article made such allegations to the public, not that the allegations were true. 24 Defendants do not seek admission of this article for an improper purpose. 25 All ten of Skaggs and Haynes’ requests for judicial notice are granted. The Court 26 emphasizes, however, that judicial notice only extends to the authenticity and content of each 27 document, not to the truth of such contents. 28 1 B. Plaintiff’s Requests 2 Plaintiff seeks judicial notice of (1) his response, filed June 1, 2023, to the LASC order in 3 Henreid I granting his motion to strike defamatory statements from Defendants’ filings in the 4 court record (Exhibit A) (ECF No. 21-1 at 3-40); (2) the fact that the LASC docket shows 5 Defendants never replied to this response; (3) the order in Henreid I to redact defamatory per se 6 content from the public court record, dated July 10, 2023 (Exhibit C) (ECF No. 21-1 at 40-44); 7 (4) a letter from the State of California Department of Justice, dated September 10, 2018, stating 8 that a search for Plaintiff’s fingerprints did not yield criminal records (Exhibit D) (ECF No. 21-1 9 at 45-46); (5) a No Match Notification from the Missouri Highway Patrol, dated February 17, 10 2020 (Exhibit E) (ECF No. 21-1 at 47-48); (6) a screenshot from Backgroundchecks.com of a 11 national criminal background check yielding no results for Plaintiff (Exhibit F) (ECF No. 21-1 at 12 49-57); and (7) an Audit Agreement with the Council dated November 1, 2018 (Exhibit G) (ECF 13 No. 21-1 at 58-59). 14 Plaintiff cites no authority suggesting that either Backgroundchecks.com or a handwritten 15 agreement could be “sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 16 201(b)(2). Nor does Plaintiff provide any evidence that the docket would show no reply to 17 Exhibit A, as Plaintiff claims in his second request. Judicial notice is granted only as to Exhibits 18 A and C-E. 19 II. Plaintiff’s Purported “Tax Fraud” Claim 20 Plaintiff argues that his claims are not precluded under the various doctrines discussed 21 below because the FAC’s allegations of “tax fraud” have no connection to the underlying civil 22 actions. ECF No. 21 at 9. The FAC alleges that the FTB assessed Plaintiff for taxes owed in 23 2020 three years later, that Haynes has the government contacts necessary to collude with FTB by 24 virtue of his tenure with the Republican Party, and that the tax assessment is “no coincidence.” 25 FAC at 35. However, there is no private cause of action for tax fraud as conceived by Plaintiff. 26 Tax fraud is a criminal offense that can be pursued by the proper government authorities, but not 27 private litigants. Moreover, neither the FAC nor Plaintiff’s opposition to the motion to dismiss 28 identify facts that would elevate the substance of his tax-related allegations beyond pure 1 speculation. See Twombly, 550 U.S. at 556. “It is the conclusory nature of respondent's 2 allegations, rather than their extravagantly fanciful nature, that disentitles them to the 3 presumption of truth.” Iqbal, 556 U.S. at 681. Plaintiff’s tax fraud claim should be dismissed. 4 The remaining claims all concern Henreid I and Henreid II. 5 III. Haynes and Skaggs’ Motion to Dismiss 6 Defendants Haynes and Skaggs assert that Plaintiff’s claims against them are entirely 7 barred by the litigation privilege. ECF No. 17 at 7-9. Defendants note that every reference to 8 purportedly defamatory comments is to Defendants’ actions in Henreid I or Henreid II. Id. at 8-9 9 (citing FAC at 5-6, 8, 11, 14, 16, 20, 22-23, 25-26, 36, 39). Defendants identify the instant action 10 as the exact form of harassment that the litigation privilege was designed to guard against. Id. at 11 10. They characterize the claims as the product of Plaintiff’s frustration at the outcome of the 12 underlying defamation action, and as his attempt to retaliate at anyone who ever told him his prior 13 claims lacked legal basis. Id. 14 The litigation privilege is a creature of California law. Set out in California Civil Code § 15 47(b)(2), it “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) 16 by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and 17 (4) that have some connection or logical relation to the action.” Silberg v. Anderson, 50 Cal. 3d 18 205, 212 (1990). “The litigation privilege is absolute” and “[a]ny doubt as to whether the 19 privilege applies is resolved in favor of applying it.” Gamble v. Kaiser Foundation Health Plan, 20 Inc., 348 F.Supp.3d 1003, 1029 (N.D. Cal. 2018) (quotations omitted). 21 A. Plaintiff’s Arguments 22 Plaintiff argues that Haynes and Skaggs misrepresent the scope of the litigation privilege. 23 ECF No. 21 at 3. He first argues that it does not protect “malicious and untruthful persons” like 24 Defendants, who he argues made defamatory statements during a jury trial, despite judicially 25 noticed documents establishing the falsehood of those statements. Id. (quoting Friedman v. 26 Knecht, 248 Cal. App. 2d 455, 463 (Cal Ct. App. 1967)). 27 These documents, Plaintiff argues, also prevent Defendants from claiming the statements 28 had “reasonable relevance to the action.” ECF No. 21 at 10-11 (citing Financial Corp. of 1 America v. Wilburn, 189 Cal.App.3d 764, 771 (Cal. Ct. App. 1987)). As Plaintiff reasons, 2 because the Representations in the underlying civil action were about convictions and not 3 dismissed charges, the allegations of dismissed charges were also not relevant to the civil action. 4 ECF No. 21 at 11. Plaintiff cites Judge Richardson’s order in Henreid I that struck the 5 Representations from the trial court record on the basis that the Representations were irrelevant, 6 clearly erroneous, and prejudicial if left unsealed. Id. at 11-12 (citing ECF No. 21-1 at 40-44). 7 Plaintiff argues that Haynes’ persistence in repeating the Representations after Judge 8 Richardson’s order proves malice, oppressiveness, and fraud. ECF No. 21 at 12-13 (citing Cal. 9 Civil Code § 3294). 10 Relatedly, Plaintiff argues that the statements at issue were not “[i]n the proper discharge 11 of an official duty” and would be exempt from the litigation privilege as false reports of someone 12 committing a criminal act. ECF No. 21 at 9-10 (citing Cal. Civil Code §§ 47(a), (b)(5). Plaintiff 13 also cites case law refraining from applying the privilege to “perjury (Pen. Code § 118 et seq.); 14 subornation of perjury (id. § 127); criminal prosecution under Business and Professions Code 15 section 6128; [and] false report of a criminal offense (Pen. Code § 148.5)[.]” ECF No. 21 at 10 16 (quoting Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246 (Cal. Ct. 17 App. 2007)) (corrected). 18 Finally, Plaintiff argues that even if litigation privilege attaches to Haynes and Skaggs’ 19 statements, the privilege does not prevent attorneys from being sanctioned or held in contempt for 20 such statements. ECF No. 21 at 6-7 (citing In re Marriage of Anka & Yeager, 31 Cal. App. 5th at 21 1121; Smith v. Hatch, 271 Cal.App.2d 39, 50 (Cal. Ct. App. 1969)). 22 B. Analysis 23 Plaintiff’s citation to California Civil Code § 47(a) has no relevance because Civil Code § 24 47(b) is the source of the litigation privilege. Additionally, the cited exception for falsely 25 reporting a crime only applies to “communication between a person and a law enforcement 26 agency[.]” Cal. Civil Code § 47(b)(5). The FAC never alleges that Defendants made the 27 Representations outside of court, let alone to law enforcement. 28 Plaintiff’s citation to Friedman discusses the policy reasons for the existence of the 1 litigation privilege, not its application. See 248 Cal. App. 2d at 462-63. In any case, the scope of 2 litigation privilege has since expanded. As Defendants note, although the litigation privilege was 3 originally enacted to apply only in defamation cases, it has since expanded to any relevant 4 communication and prevents the use thereof in any case except for malicious prosecution. ECF 5 No. 30 at 5; Silberg v. Anderson, 50 Cal.3d 205, 211 (Cal. 1990). The privilege even extends to 6 communications outside the courtroom and without involvement of the court or its officers, if the 7 communication was made to achieve the objects of the litigation. Id. (citing Albertson v. Raboff, 8 46 Cal.2d 375, 381 (Cal. 1956); Rosenthal v. Irell & Manella, 135 Cal. App. 3d 121, 126 (Cal. Ct. 9 App. 1982); Pettitt v. Levy, 28 Cal. App. 3d 484, 489 (Cal. Ct. App. 1972)). 10 Nor do any of the exemptions referenced in Action Apartment Association apply. See 41 11 Cal.4th at 1246. A private citizen like Plaintiff cannot bring an action for perjury, let alone use it 12 to defeat the litigation privilege. See Lambert v. Carneghi, 158 Cal.App.4th 1120, 1143 n.9 (Cal. 13 Ct. App. 2008) (citing Pollock v. University of Southern California, 112 Cal.App.4th 1416, 1429 14 (Cal. Ct. App. 2003)). A similar logic applies to a purported violation of California Business and 15 Professions Code § 6128. Action Apartment Association emphasized that litigation privilege does 16 not apply when there is “criminal prosecution” under this statute, which the FAC does not allege. 17 See 41 Cal.4th at 1246. Finally, false report of a criminal offense only applies when the false 18 report is made to a peace officer or grand jury, which the FAC never alleges. See Cal. Penal 19 Code § 148.5(a)-(d). 20 The scope of matter relevant to Henreid I was also broader than Plaintiff asserts. The 21 FAC alleges that Judge Sotelo improperly ruled that because Plaintiff was a public figure, his 22 defamation claim required that Skaggs knew that the Representations were false or acted with 23 reckless disregard as to their truth when he first published them in 2019. FAC at 20. Whether 24 Judge Sotelo was correct, past allegations of wrongdoing were therefore relevant to whether 25 Skaggs could have reasonably believed that Plaintiff was guilty of other wrongdoing. The fact 26 that judicially noticed documents showed Plaintiff was never convicted of a crime did not end the 27 inquiry. 28 Nor did the trial court’s decision striking the Representations from the record in Henreid I 1 invalidate the litigation privilege. See ECF No. 21-1 at 41-44. Plaintiff argues that continuing to 2 spread the Representations demonstrates malice, oppressiveness, and fraud. ECF No. 21 at 12-13 3 (citing Cal. Civil Code § 3294). If a communication was legitimately related to the litigation, 4 however, the privilege can apply even if the communication was “fraudulent, perjurious, 5 unethical, or even illegal.” Kashian v. Harriman, 98 Cal.App.4th 892, 920 (Cal. Ct. App. 2002). 6 In any case, the order granting the motion to strike was clear that it did not apply to the ongoing 7 appellate proceedings, and that Plaintiff had failed to prove that Defendants had engaged in the 8 deceit or collusion necessary to merit sanctions. ECF No. 21-1 at 43. This shows that repeating 9 the Representations in appellate proceedings after Judge Richardson granted a motion to strike 10 them from the trial record did not necessarily render them beyond the scope of the litigation 11 privilege. 12 Finally, Plaintiff’s argument that litigation privilege does not apply to sanction or 13 contempt proceedings is irrelevant. One of the cases Plaintiff cites, In re Marriage of Anka & 14 Yeager, did hold that litigation privilege does not apply to sanctions imposed by the trial court. 15 31 Cal. App. 5th at 1121 (citing In re Marriage of Davenport, 194 Cal.App.4th 1507, 1527 (Cal. 16 Ct. App. 2011)). The case it cites, however, distinguishes between contempt proceedings in the 17 same action and separate actions for tort liability. In re Marriage of Davenport, 194 Cal.App.4th 18 at 1527. The instant action is a separate action for tort liability under various theories, including 19 defamation and negligence. 20 C. Conclusion 21 Plaintiff has failed to articulate why the litigation privilege does not apply to any of the 22 Representations at issue in the FAC. The court therefore recommends GRANTING the motion to 23 dismiss all claims against Haynes and Skaggs. The court need not address Haynes and Skaggs’ 24 arguments as to collateral estoppel. See ECF No. 17 at 6-7. 25 III. Judge Sotelo’s Motion to Dismiss 26 A. Rooker-Feldman Doctrine 27 Under the Rooker-Feldman doctrine, federal district courts may not “review the final 28 determinations of a state court in judicial proceedings.” Worldwide Church of God v. McNair, et 1 al., 805 F.2d 888, 890 (9th Cir. 1986). The doctrine reflects the fact that the only federal court 2 with the jurisdiction to review state court decisions is the United States Supreme Court. See 3 Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Lower courts can review the 4 constitutionality of laws, but not the judgment of a state court in the application thereto in a 5 particular case. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). 6 District courts therefore lack subject matter jurisdiction if the current claims are 7 “inextricably intertwined” with a state court decision and “the adjudication of the federal claims 8 would undercut the state ruling or require the district court to interpret the application of state 9 laws or procedural rules[.]” Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). This 10 doctrine is analogous to res judicata, insofar as the district court cannot act if “there has already 11 been actual consideration of and a decision on the issue presented.” McNair, 805 F.2d at 892 12 (quoting Robinson v. Ariyoshi, 753 F.2d 1468, 1472 (9th Cir. 1985)). 13 Judge Sotelo argues that the Rooker-Feldman doctrine applies because the FAC 14 challenges his decisions to, inter alia, prevent Plaintiff from citing statutory law to the jury in 15 Henreid I, allow submission of newspaper articles through cross-examination of Plaintiff, instruct 16 the jury to treat Plaintiff as a public figure for defamation purposes, leave the veracity of the 17 Representations as a question of fact-finding for the jury, and include language regarding 18 Plaintiff’s former criminal charges in several of his orders. ECF No. 19 at 8. 19 Plaintiff responds that while he does challenge the last point, the FAC only included the 20 remaining information as proof of the malice that led Judge Sotelo to allow Representations to 21 persist in court filings for Henreid I. ECF No. 27 at 6. Plaintiff adds that because Judge Sotelo 22 retired before Plaintiff filed his motion for sanctions, this Court would not be undercutting any 23 ruling on such a motion. Id. at 7. Plaintiff further argues that the Rooker-Feldman doctrine only 24 applies to “state-court losers complaining of injuries” resulting from the loss, whereas Plaintiff 25 did not lose the motion to strike Representations from the state court record. Id. at 6-7 (quoting 26 Los Molinos Mut. Water Co. v. Ekdahl, 695 F. Supp. 3d 1174, 1192 (E.D. Cal. 2023) (quoting 27 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 291-92 (2005))). 28 Judge Sotelo responds that in addition to Plaintiff admitting that the language in some of 1 Judge Sotelo’s orders is at issue, the FAC’s Prayer for Relief specifically asks for an order to 2 removing any damaging misrepresentations of Plaintiff’s past from the state-court record. ECF 3 No. 32 at 4 (citing FAC at 37). This would, in turn, require this court to review whether the 4 language in such orders was defamatory. ECF No. 32 at 4. Judge Sotelo also argues that whether 5 Plaintiff was a “state-court loser” on his motion to strike in Henreid I is irrelevant because the 6 order granting that motion is not what Plaintiff asks this court to review. Id. 7 The court agrees that even if Judge Sotelo’s order denying Plaintiff’s motion for summary 8 judgement and subsequent orders are the only orders at issue, Rooker-Feldman bars the review 9 that Plaintiff requests. The motion for reconsideration quoted in the FAC underscores this point. 10 In that motion, Plaintiff argued that if Judge Sotelo did not remove allegations of Plaintiff’s prior 11 criminal conduct from Judge Sotelo’s previous order, “Plaintiff would have to sue the Court for 12 what the Ruling states is factually [sic] about dismissed charges twenty-five years later in order to 13 avoid having that statement become accepted as true in the future.” FAC at 24. Despite that, 14 Judge Sotelo’s final ruling still contained the contested language, and Plaintiff now asks to have 15 that language and similar statements removed from the public record. Id. at 24, 37. 16 Under the Rooker-Feldman doctrine, this court lacks jurisdiction to review Judge Sotelo’s 17 challenged orders, including any reference therein to Plaintiff’s prior criminal charges. This 18 alone merits dismissal of the case against Judge Sotelo. 19 B. Judicial Immunity 20 Judges are entitled to absolute immunity from actions for damages “for their judicial acts, 21 even when such acts are in excess of jurisdiction, and are alleged to have been done maliciously 22 or corruptly.” Tagliavia v. County of Los Angeles, 112 Cal. App. 3d 759, 761-62 (Cal Ct. App. 23 1980) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); see also Lund v. Cowan, 5 F.4th 964, 24 972 (9th Cir. 2021) (“a judicial act does not stop being a judicial act even if the judge acted with 25 ‘malice or corruption of motive’”) (citation omitted). The Ninth Circuit has noted that although 26 judicial independence can result in unfairness to a litigant, that is precisely when “judicial 27 immunity may be more necessary to preserve judicial independence.” Lund, 5 F.4th at 971-72. 28 Judge Sotelo argues that this immunity merits dismissal of any claims against him in the FAC. 1 ECF No. 19 at 9-10. 2 Plaintiff first argues that this immunity does not apply to his allegations of tax fraud, 3 which did not concern any judicial action. ECF No. 27 at 4. While this is technically true, as 4 discussed above, Plaintiff cannot state a claim for tax fraud. See supra. Moreover, as to any 5 purported tax fraud cause of action, the allegations against Judge Sotelo are even less substantial 6 than those against Haynes. Whereas the FAC alleges that Haynes had the political connections to 7 compel the FTB to issue a fraudulent tax assessment, it makes no such allegations about Judge 8 Sotelo. See FAC at 35. Plaintiff’s tax fraud theories thus do nothing to pierce Judge Sotelo’s 9 judicial immunity. 10 As to the remaining claims, the FAC alleges Judge Sotelo knew the Representations about 11 Plaintiff’s criminal past were false. ECF No. 27 at 5 (citing FAC at 38). Plaintiff argues that 12 because judicially noticed documents demonstrated any such allegations were false, Judge Sotelo 13 effectively rewrote the applicable statute and therefore performed “a legislative and not a judicial 14 function.” ECF No. 27 at 5 (citing Hung v. Wang, 8 Cal. App. 4th 908, 931 (Cal. Ct. App. 15 1992)). The FAC also alleges that in the underlying litigation Defendants disclosed cases made 16 confidential by law, which violates the California Penal Code. ECF No. 27 at 5 (citing FAC at 17 39). Plaintiff argues that committing a crime is not a “function normally performed by a judge” 18 and therefore is not protected under judicial immunity. ECF No. 27 at 5 (quoting Mireles v. 19 Waco, 502 U.S. 9, 12 (1991)). 20 Plaintiff’s arguments lack support. The cited portion of Hung did not directly concern 21 judicial immunity. 8 Cal. App. 4th 931. Rather, in Hung the Second District Court of Appeal 22 distinguished between the requirement that a court construe laws to avoid unconstitutionality 23 when possible and the prohibition against rewriting a statute to add provisions necessary to make 24 a statute constitutional. Id. at 930-31. Nothing shows that Judge Sotelo rewrote a statute in 25 Henreid I. Even if he had, Plaintiff offers no authority suggesting that doing so would eliminate 26 judicial immunity. 27 Plaintiff also misconstrues Mireles’ statement that particular acts, like ordering police to 28 execute a judicial order with excessive force, are not “normally performed by a judge.” 502 U.S. 1 at 12 (citing Stump v. Sparkman, 435 U.S. 349, 362 (1978)). In Mireles, the Supreme Court 2 clarified that “[i]f judicial immunity means anything,” it cannot depend on whether a specific act 3 was “in error” or exceeded the bounds of a judge’s authority. 502 U.S. at 12-13. Rather, “the 4 relevant inquiry is the ‘nature’ and ‘function’ of the action, not the ‘act itself.’” Id. at 13 (quoting 5 Stump, 435 U.S. at 362). In the instant action, Judge Sotelo’s contested orders were issued in the 6 ordinary course of adjudicating disputes—nor did he order a third party to do something clearly 7 illegal. Assuming arguendo that Judge Sotelo’s decisions were legally incorrect or somehow 8 exceeded his judicial authority, under the Stump/Mireles nature-and-function test they are 9 immune from challenge in this action. 10 C. Conclusion 11 Plaintiff’s claims against Judge Sotelo are precluded by both the Rooker-Feldman doctrine 12 and judicial immunity. The Court therefore recommends GRANTING the motion to dismiss all 13 causes of action against Judge Sotelo. 14 IV. Plaintiff’s Motion for Leave to File a Second Amended Complaint 15 For the reasons explained above, all of Plaintiff’s claims in the FAC should be dismissed. 16 The question is whether Plaintiff should be granted leave to file an amended pleading. A pro se 17 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, 18 unless the complaint’s deficiencies could not be cured by amendment. See Akhtar, 698 F.3d at 19 1213. Plaintiff has specifically sought leave to file a Second Amended Complaint. ECF No. 38. 20 Plaintiff’s proposed Second Amended Complaint (“Proposed SAC”) purports to allege the 21 following causes of action: (1) 42 U.S.C. §1983; (2) defamation per se; (3) invasion of privacy; 22 (4) IIED; (5) tax fraud; (6) negligence; (7) negligence per se; (8) injunctive relief; (9) specific 23 performance; (10) equitable estoppel; (11) fraud or deceit – intentional misrepresentations; (12) 24 malicious prosecution; and (13) declaratory relief. ECF No. 38-2 at 1. The Proposed SAC 25 contains apparently identical factual allegations to the FAC. Id. at 7-34. The body of the 26 Proposed SAC also contains apparently identical causes of action to the causes of action in the 27 FAC, despite the lengthier listed causes of action on the caption sheet. Id. at 14-15, 34-37. 28 Given that Plaintiff’s Proposed SAC is substantively identical to the FAC, it reinforces the 1 conclusion in the original findings and recommendations that leave to amend should not be 2 granted. Plaintiff’s objections to the original findings and recommendations also provide no 3 reason to believe that Plaintiff could amend to state a claim on which relief could be granted. All 4 of Plaintiff’s claims in the Proposed SAC, like his claims in the FAC, are barred as a matter of 5 law—against Haynes and Skaggs based on the litigation privilege and against Judge Sotelo are 6 based on the Rooker-Feldman doctrine and absolute judicial immunity. Moreover, Plaintiff’s 7 purported tax fraud claim suffers from incurable defects and should be dismissed without leave to 8 amend. See SmileCare Dental Grp. v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 9 (9th Cir. 1996) (“The court may dismiss a complaint as a matter of law for (1) lack of a 10 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.”) (internal 11 quotations omitted). Leave to amend should be DENIED. 12 V. Motion for Sanctions 13 In the original findings and recommendations, the undersigned recommended awarding 14 Haynes and Skaggs $10,000 as a sanction for Plaintiff’s pursuit of frivolous claims. ECF No. 37 15 at 20-23. The Court now reconsiders that recommendation in light of recent hardship that 16 Plaintiff has reportedly endured. Plaintiff represents that on March 27, 2025, a fire at his 17 residence caused what “by insurance standards would likely be considered at total loss.”6 ECF 18 No. 39 at 3; see also ECF No. 38 at 5-9 (Plaintiff’s declaration accompanied by photos of the 19 destroyed residence). Plaintiff states that he “does not have liquid assets to pay” any sanctions 20 amount and notes that his “residence and vehicle were blown up and incinerated” on March 27. 21 ECF No. 41 at 10. While the undersigned is sympathetic to the hardship that Plaintiff is facing as 22 a result of this fire, Plaintiff has not attempted to document his financial situation and has not 23 represented that he would be unable to liquidate assets to pay any assessed sanctions. On the 24 record before the Court, this is accordingly not a case where it is clear that a monetary sanction 25 would “impose[] a requirement” by Plaintiff that “could not be performed.” Thomas v. Gerber 26

27 6 Plaintiff believes the incident was a “domestic terrorist attack” connected “to this litigation.” ECF No. 39 at 3. The undersigned ignores those unsubstantiated conspiracy theories in 28 1 Productions, 703 F.2d 353, 357 (9th Cir.1983). The undersigned accordingly turns to substantive 2 analysis of the requested sanctions. 3 Plaintiff was on notice that claims against Haynes and Skaggs related to Representations 4 in the underlying defamation action were barred by the litigation privilege. Before Plaintiff filed 5 this lawsuit, in an email in October 2022, Haynes warned Plaintiff that the litigation privilege 6 applied to statements “that are, or are alleged to be, fraudulent, perjurious, unethical, or even 7 illegal.” ECF No. 17-1 at 84 (quoting Kashian, 98 Cal.App.4th at 920). Then, on February 16, 8 2024, the Second Appellate District of California, in Henreid II, affirmed Judge Sotelo’s 9 judgment in Henreid I. ECF No. 17-1 at 5. In a footnote invoking the litigation privilege, the 10 appellate court cited authority for the proposition that privilege attaches “to all publications, 11 irrespective of their maliciousness.” ECF No. 17-1 at 26. (quoting RGC Gaslamp, LLC v. 12 Ehmcke Sheet Metal Co., Inc., 56 Cal.App.5th 413, 435 (Cal. Ct. App. 2020)). Haynes and 13 Skaggs argue that although Plaintiff filed the original complaint in this action before that decision 14 issued in Henreid II, he should have thereafter dismissed this action rather than filing an amended 15 complaint adding Skaggs and Judge Sotelo as Defendants. ECF No. 18 at 6. Regardless, 16 particularly given that Plaintiff is an attorney, even perfunctory legal research would have 17 revealed that the legal theories Plaintiff asserts in this lawsuit are meritless. 18 Haynes and Skaggs further argue that Plaintiff has repeated several of his current 19 arguments in other forums, seen them repudiated, and retaliated by making even more outrageous 20 claims in a new forum. Id. As a lawyer, Plaintiff can continue to harass Defendants with these 21 allegations at no cost to himself unless sanctions are imposed to deter him. Id. Haynes and 22 Skaggs therefore request that the court award them $10,000 in sanctions from Plaintiff, reflecting 23 20 hours of billable work by Haynes at $500 per hour. Id. at 6-7; ECF No. 28 at 3. 24 Plaintiff first responds that because the FAC’s allegations of tax fraud are new, no prior 25 court has ruled against them and Defendants cannot argue they are frivolous or covered by 26 litigation privilege. ECF No. 22 at 1. He then notes that when Judge Richardson in Henreid I 27 granted Plaintiff’s motion to strike, she held that the record included “damaging and clearly 28 erroneous representations of his past criminal history” that should be sealed to prevent their 1 “reproduction in the public sphere.” Id. at 2 (citing ECF No. 21-1 at 43). Third, because Plaintiff 2 never filed a separate motion for sanctions as Judge Richardson required, there was never a full 3 presentation or ruling on the merits concerning misconduct that occurred while Henreid I was on 4 appeal. ECF No. 22 at 2. Finally, many of the factual issues in the instant action were never 5 raised in Henreid I because of the “inherent conflict of interest” with Judge Sotelo, even after he 6 retired.7 Id. at 2-3. 7 Plaintiff then argues that the Court should sanction Defendants Haynes and Skaggs, if 8 anyone, for filing a frivolous motion for sanctions. Id. at 4-7. Several of his arguments, however, 9 mirror those from his opposition to Haynes’ and Skaggs’ motion to dismiss and fail for the same 10 reasons. Plaintiff again cites California Rules of Court, Rule 8.1115’s prohibition on citing 11 unpublished appellate opinions, and he again ignores Rule 8.1115(b)’s exception for opinions 12 “relevant under the doctrines of law of the case, res judicata, or collateral estoppel[.]” Compare 13 ECF No. 22 at 4 with ECF No. 23 at 2. Plaintiff’s citation to In re Marriage of Anka & Yeager 14 again fails to distinguish between contempt proceedings in the original trial and tort litigation in a 15 new trial. Compare ECF No. 22 at 4 with ECF No. 23 at 6-7.8 16 As to the Henreid I court’s order granting Plaintiff’s motion to strike, Haynes and Skaggs 17 note that the trial court’s decision did not reflect any wrongdoing by Haynes. ECF No. 26 at 2. A 18 holistic reading of Henreid I court’s analysis confirms this. Judge Richardson did find that the 19 statement from an objection Skaggs filed misstated Plaintiff’s expunged criminal history. ECF 20 No. 21-1 at 42. Judge Richardson declined to impose sanctions, however, because she could not 21 find that Skaggs had intended to deceive the court or any party. Id. at 43. The order sealed 22 portions of the record because of the “overriding interest” in protecting Plaintiff, and the cited test 23 does not list defendant misconduct or fraud among the relevant factors. Id. (citing Cal. Rules of 24 Court, Rule 2.550(d)). In short, nothing in Henreid I could have reasonably made Plaintiff 25

26 7 Any perceived conflict of interest with Judge Sotelo is irrelevant to the question of whether sanctions are warranted in the instant action. In any event, Plaintiff’s belief in a conflict of 27 interest stems solely from Judge Sotelo ruling against Plaintiff, in decisions which are protected by judicial immunity. See supra; ECF No. 22 at 2-3. 28 8 Plaintiff’s argument regarding his tax fraud claim is disposed of by the explanation that such 1 believe that he could file a new action in federal court seeking to further litigate issues finally 2 decided in state court. 3 The various holdings from state court proceedings, combined with doctrines that 4 precluded their reintroduction in federal litigation, undermine any argument that Plaintiff 5 reasonably believed the claims raised in his FAC had merit. Defendants have demonstrated that 6 the FAC’s arguments are clearly not “warranted by existing law or by a nonfrivolous argument 7 for extending, modifying, or reversing existing law or for establishing new law[,]” and that 8 Plaintiff should have known as much. See Fed. R. Civ. P. 11(b)(2). The rate of $500 requested 9 by Haynes and Skaggs is reasonable, as are the 20 hours expended in preparing the motions, 10 given the array of issues Plaintiff included in the FAC. See United Food & Commercial Workers 11 Union Local No. 115 v. Armour and Co., 106 F.R.D. 345, 349 (N.D. Cal. 1985) (“Sanctions also 12 insure, to a large degree, that victims of frivolous lawsuits do not pay the expensive legal fees 13 associated with defending such lawsuits.”). Defendants Haynes and Skaggs’ motion for $10,000 14 in sanctions against Plaintiff should be GRANTED, and Plaintiff’s request for sanctions against 15 Defendants DENIED. 16 VI. Recusal Motion 17 Plaintiff moves to recuse the undersigned pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 18 455. ECF No. 41. Plaintiff’s motion is based on his disagreements with the original findings and 19 recommendations. That is not a basis for recusal. See Liteky, 510 U.S. at 555; Hernandez- 20 Escarsega, 886 F.2d at 1581. The undersigned has treated Plaintiff’s claims with the 21 consideration demanded by applicable legal standards. There is no reasonable basis to question 22 the impartiality of the undersigned. Plaintiff’s recusal motion will be denied. 23 CONCLUSION 24 Accordingly, it is hereby ORDERED THAT: 25 1. The previously issued Findings and Recommendations (ECF No. 37) are withdrawn; 26 and 27 2. Plaintiff’s Motion to Recuse Magistrate Judge Sean C. Riordan (ECF No. 41) is 28 DENIED. 1 Moreover, IT IS HEREBY RECOMMENDED THAT: 2 1. Defendants Skaggs and Haynes’ Motion to Dismiss (ECF No. 17) be GRANTED as to 3 all causes of action WITHOUT LEAVE TO AMEND; 4 2. Defendant Judge Sotelo’s Motion to Dismiss (ECF No. 19) be GRANTED as to all 5 causes of action WITHOUT LEAVE TO AMEND; 6 3. Defendants Skaggs and Haynes’ Motion for Sanctions against Plaintiff (ECF No. 18) 7 be GRANTED in the amount of $10,000. 8 These amended findings and recommendations are submitted to the United States District 9 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 10 | (14) days after being served with these findings and recommendations, Plaintiff may file written 11 | objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 13 | objections within the specified time may waive the right to appeal the District Court’s order. 14 | Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 15 || DATED: April 14, 2025 food SEAN C. RIORDAN 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 26