Roshan v. Lawrence

• Court: District Court, N.D. California
• Decided: January 18, 2021
• Docket: 3:20-cv-04770
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PEYMAN ROSHAN, Case No. 20-cv-04770-AGT

8 Plaintiff, ORDER (1) GRANTING MOTION TO DISMISS, (2) DENYING MOTION FOR 9 v. LEAVE TO AMEND, (3) DENYING MOTION TO DEFER 10 MELANIE J. LAWRENCE, et al., CONSIDERATION OF MOTION TO DISMISS Defendants. 11 Re: ECF Nos. 9, 28, 30 12

13 14 In this action for declaratory and injunctive relief, Peyman Roshan, a California lawyer 15 facing discipline by the State Bar of California (“State Bar”) for numerous counts of professional 16 misconduct, seeks to enjoin his ongoing disciplinary proceedings and an order declaring the State 17 Bar’s disciplinary rules and procedures unconstitutional. The State Bar’s Office of Chief Trial 18 Counsel (“OCTC”) and the head of OCTC, Melanie J. Lawrence (“Defendants”), have moved to 19 dismiss, without leave to amend, on abstention grounds under Younger v. Harris, 401 U.S. 37 20 (1971). ECF No. 9. After that motion was fully briefed, Roshan filed a motion for leave to amend 21 (ECF No. 28), followed by a motion to defer consideration of the pending motion to dismiss until 22 February 2021, when he believes his pending State Bar disciplinary proceedings will have 23 concluded (ECF No. 30).1 For the reasons that follow, the Court finds that Younger abstention 24 applies and requires dismissal of this case, right now, without leave to amend and without 25 prejudice. Defendants’ motion to dismiss is therefore granted; Roshan’s motions are denied. 26

27 1 Pursuant to Civil Local Rule 7-1(b), the Court previously found Defendants’ pending motion to 1 I. BACKGROUND 2 A. California’s Attorney Disciplinary System 3 Under California law, attorney disciplinary matters are handled by the State Bar, a state 4 constitutional entity that serves as an administrative arm of the California Supreme Court. See In 5 re Rose, 22 Cal. 4th 430, 438 (2000). Defendant OCTC is the department of the State Bar 6 responsible for prosecuting attorney discipline cases in the State Bar Court, and the head of OCTC 7 is the Chief Trial Counsel, defendant Melanie J. Lawrence. 8 The State Bar Court “exercises no judicial power, but rather makes recommendations to 9 [the California Supreme Court], which then undertakes an independent determination of the law 10 and the facts, exercises its inherent jurisdiction over attorney discipline, and enters the first and 11 only disciplinary order.” Id. at 436. The California Supreme Court has described the structure 12 and process of California’s attorney discipline system as follows:

13 The State Bar Court Hearing Department (Hearing Department) conducts evidentiary hearings on the merits in disciplinary matters. 14 An attorney charged with misconduct is entitled to receive reasonable notice, to conduct discovery, to have a reasonable opportunity to 15 defend against the charge by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. 16 The Hearing Department renders a written decision recommending whether the attorney should be disciplined. 17 Any disciplinary decision of the Hearing Department is reviewable 18 by the State Bar Court Review Department (Review Department) at the request of the attorney or the State Bar. In such a review 19 proceeding, the matter is fully briefed, and the parties are given an opportunity for oral argument. The Review Department 20 independently reviews the record, files a written opinion, and may adopt findings, conclusions, and a decision or recommendation at 21 variance with those of the Hearing Department.

22 A recommendation of suspension or disbarment, and the accompanying record, is transmitted to this court after the State Bar 23 Court’s decision becomes final. 24 Id. at 439 (internal citations omitted and paragraph breaks added). The attorney may then file a 25 petition for review with the California Supreme Court within 60 days after the State Bar Court 26 files a certified copy of the decision recommending suspension or disbarment. See id. at 440 27 (citing Cal. Bus. & Prof. Code §§ 6082, 6083; Cal. R. Ct. 952(a), subsequently renumbered to Cal. 1 denies review, in which case the State Bar Court’s disciplinary recommendation is filed as an 2 order of the California Supreme Court. Id. at 440–41 (citing Cal. R. Ct. 954, subsequently 3 renumbered to Cal. R. Ct. 9.16). Throughout this process, the California Supreme Court retains 4 inherent judicial authority over all attorney discipline matters. Id. at 442. 5 B. Roshan’s Ongoing State Bar Disciplinary Proceedings2 6 Plaintiff and California attorney Peyman Roshan is the subject of ongoing disciplinary 7 proceedings in State Bar Court Case Nos. 17-O-01202; 17-O-05799 (consolidated). Compl. ¶ 28. 8 OCTC issued a notice of disciplinary charges (“NDC”) against Roshan in December 2018, 9 charging him with 19 counts of misconduct based on his representation of a client with whom he 10 developed a business relationship. See Defs.’ RJN, Exs. 1 & 2. On April 9, 2019, OCTC filed an 11 amended NDC, adding two additional counts relating to that same matter. See id.; Compl. ¶¶ 28, 12 38. The misconduct alleged in the amended NDC included, among other things, that Roshan 13 practiced law without authorization prior to receiving his license, failed to perform legal services 14 with competence, engaged in improper business transactions with his client, and engaged in moral 15 turpitude and misrepresentation. See ECF No. 9 at 7–8; Defs.’ RJN, Ex. 1. A five-day trial began 16 on April 18, 2019, and four months later, the State Bar Court Hearing Department issued a 46- 17 page decision finding Roshan culpable of 12 counts of misconduct and recommending a two-year 18 actual suspension. See ECF No. 9 at 8; Defs.’ RJN, Ex. 2. Roshan sought review of the decision 19 with the State Bar Court Review Department in October 2019. Defs.’ RJN, Ex. 4. 20 On July 16, 2020—the same day Roshan filed this federal action—the Review Department 21

22 2 Defendants request judicial notice of the following documents relating to Roshan’s disciplinary proceedings in State Bar Court Case Nos. 17-O-01202, 17-O-05799 (consolidated): (1) OCTC’s 23 Amended Notice of Disciplinary Charges, filed April 9, 2019; (2) State Bar Court Hearing Department Decision, dated August 7, 2019; (3) Roshan’s Request for Review by the State Bar 24 Court Review Department, filed October 18, 2019; and (4) a copy of the State Bar Court docket, printed August 19, 2020. See ECF No. 10 (“Defs.’ RJN”), Exs. 1–4. Defendants’ request is 25 granted. See Fed. R. Evid. 201; U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take notice of proceedings in other courts, both 26 within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”). The Court also takes judicial notice of the updated docket in State Bar Court 27 Case Nos. 17-O-01202, 17-O-05799 (available via https://apps.statebarcourt.ca.gov/dockets.aspx) 1 held oral argument in his disciplinary case. Id. In August 2020, the Review Department issued a 2 decision finding Roshan culpable of seven counts of misconduct, including breach of fiduciary 3 duty and moral turpitude by misrepresentation, and recommending that Roshan be suspended for 4 two years. See id; ECF No. 30 at 3–4. The respective online dockets reflect that the State Bar 5 Court’s disciplinary recommendation and accompanying record in Case Nos. 17-O-01202, 17-O- 6 05799 were transmitted to the California Supreme Court on October 7, 2020, and that Roshan filed 7 a petition for review with the California Supreme Court in Case No. S265119 on December 7, 8 2020, which currently remains pending and has not been decided. 9 C. This Action 10 Roshan filed the instant action on July 16, 2020, while his disciplinary proceedings were 11 pending before the State Bar Court Review Department. He alleges that the State Bar disciplinary 12 system is unconstitutional and deprives him and other attorney-defendants of federal due process 13 rights. Roshan does not seek monetary damages; he asserts two claims, seeking only injunctive 14 and declaratory relief:

15 1. Injunctive relief for violation of constitutional rights: “The ongoing proceedings against ROSHAN should be enjoined, and all other State Bar attorney discipline 16 proceedings should be enjoined, until such time as the OCTC has drafted amended Rules of Procedure that grant attorney respondents the due process rights to which they 17 are entitled, including, without limitation, the right to a preliminary hearing that is the equivalent to a criminal preliminary hearing.” Compl. ¶ 38. 18 2. Declaratory Judgement: “ROSHAN is entitled to a declaratory judgment that the State 19 Bar Rules of Procedure and Rules of Practice are facially unconstitutional, and that all attorney discipline proceedings that occurred in whole or in part after 2010 are 20 unconstitutional and violated the due process rights of the attorney defendants. A declaratory judgment should be entered that all attorney discipline orders and 21 judgments entered from and after 2010 other than exonerations are unconstitutional, and that all attorney discipline proceedings that are ongoing are unconstitutional.” Id. 22 ¶ 41. 23 He also requests attorney’s fees and costs. See id., Prayer for Relief. 24 Following full briefing on Defendants’ pending motion to dismiss, Roshan filed a motion 25 for leave to “amend the complaint on or after February 4, 2021 to change the pleadings to allege 26 that the state court proceedings are ended.” ECF No. 28 at 4. The accompanying proposed 27 amended complaint (ECF No. 28-1) is largely identical to the operative complaint except it 1 his pending, yet undecided petition for review “was denied on __________, 2021” (id. ¶ 30); and 2 that “[t]he order suspending ROSHAN should be enjoined” (id. ¶ 38). Roshan then filed an 3 administrative motion requesting the Court to “defer consideration of the pending motion to 4 dismiss to February 4, 2021.” ECF No. 30. Defendants oppose both motions. 5 II. DISCUSSION 6 Defendants contend that Roshan’s claims are barred and must be dismissed, without leave 7 to amend, on abstention grounds under Younger v. Harris, 401 U.S. 37 (1971). The Court agrees, 8 and finds that because Younger abstention is appropriate, amendment would be futile. 9 A. Younger Abstention 10 “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 11 equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action 12 Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). “Younger and its progeny 13 generally direct federal courts to abstain from granting injunctive or declaratory relief that would 14 interfere with pending state judicial proceedings,” including “disciplinary proceedings” initiated 15 by the California State Bar. Hirsh v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 712 16 (9th Cir. 1995); see also Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005) 17 (“California’s attorney discipline proceedings are ‘judicial in character’ for purposes of Younger 18 abstention.”) (citation omitted). 19 Under Younger, federal courts must abstain from exercising jurisdiction where: “(1) a 20 state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) 21 the federal plaintiff is not barred from litigating federal constitutional issues in the state 22 proceeding; and (4) the federal court action would enjoin the proceeding or have the practical 23 effect of doing so.” City of San Jose, 546 F.3d at 1092. An exception to Younger abstention 24 exists if there is a “showing of bad faith, harassment, or some other extraordinary circumstance 25 that would make abstention inappropriate.” Id. (quoting Middlesex Cty. Ethics Comm. v. Garden 26 State Bar Ass’n, 457 U.S. 423, 435 (1982)). In this case, all four requirements for Younger 27 abstention are met, and no extraordinary circumstances exist. 1 1. Ongoing State Proceedings 2 It is undisputed that Roshan’s State Bar disciplinary proceedings were ongoing when he 3 filed this action—he even adds an allegation in his proposed amended complaint alleging, “[a]t the 4 time the complaint was filed, the state court proceedings were ongoing,” ECF No. 28-1 ¶ 37. See 5 Beltran v. State of Cal., 871 F.2d 777, 782 (9th Cir. 1988) (“Younger abstention requires that the 6 federal courts abstain when state court proceedings were ongoing at the time the federal action 7 was filed.”); see also ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th 8 Cir. 2014) (“[T]he date for determining whether Younger applies ‘is the date the federal action is 9 filed.’”) (citation omitted). Roshan also concedes that the proceedings are still ongoing, as the 10 California Supreme Court has not yet ruled on his petition for review currently pending in 11 California Supreme Court Case No. S265119.3 See ECF No. 28 at 4–5; see also Hirsh, 67 F.3d at 12 712 (finding State Bar disciplinary proceedings “ongoing” for Younger purposes where the 13 California Supreme Court had not yet filed an order regarding the State Bar Court’s disciplinary 14 recommendation). Roshan’s “prediction” that “the California Supreme Court will deny [his] 15 petition, baring [sic] a virtual miracle,” by February 2021 (see ECF No. 28 at 5; ECF No. 33 at 2– 16 3), is simply not relevant to this Court’s Younger analysis, which is conducted “in light of the facts 17 and circumstances existing at the time the federal action was filed.” Rynearson v. Ferguson, 903 18 F.3d 920, 924 (9th Cir. 2018) (quoting Potrero Hills Landfill, Inc. v. Cty. of Solano, 657 F.3d 876, 19 881 n.6 (9th Cir. 2011)). 20 2. Important State Interests 21 It is also undisputed that Roshan’s ongoing disciplinary proceedings involve important 22 state interests. See Hirsh, 67 F.3d at 712 (“California’s attorney disciplinary proceedings 23 implicate important state interests.”); Middlesex, 457 U.S. at 434 (“The State . . . has an extremely 24 important interest in maintaining and assuring the professional conduct of the attorneys it 25 licenses.”). 26 3 As noted, the California Supreme Court will either grant review of Roshan’s petition and issue 27 an order of discipline, or it will deny review, in which case the State Bar Court’s decision 1 3. Opportunity to Litigate Federal Claims 2 Third, “California’s attorney disciplinary proceedings provide [attorneys] with an adequate 3 opportunity to litigate [their] federal constitutional claims.” Canatella, 404 F.3d at 1111 (citing 4 Hirsh, 67 F.3d at 713). Although the California Constitution precludes the State Bar Court from 5 considering federal constitutional claims, “such claims may be raised in judicial review of the Bar 6 Court’s decision.” Hirsh, 67 F.3d at 713; see Cal. R. Ct. 9.13 (providing process for petitioning 7 the California Supreme Court for review of State Bar Court decisions). The Ninth Circuit has 8 repeatedly held that this opportunity to seek review by the California Supreme Court “satisfies the 9 third requirement of Younger.” Hirsh, 67 F.3d at 713 (citing cases); see Canatella, 404 F.3d at 10 1111 (“Although judicial review is wholly discretionary, its mere availability provides the 11 requisite opportunity to litigate.”). The Supreme Court has also, on multiple occasions, affirmed 12 decisions to abstain notwithstanding a state agency’s inability to consider federal challenges in the 13 initial administrative proceedings, where those challenges could be presented during state-court 14 judicial review. See, e.g., Middlesex, 457 U.S. at 435–36; Ohio Civil Rights Comm’n v. Dayton 15 Christian Schools, Inc., 477 U.S. 619, 629 (1986). 16 Roshan nevertheless contends that “California’s current system of Supreme Court review 17 fails the Younger test because the five articulated grounds for review [enumerated in California 18 Rules of Court 9.16(a)] do not allow for raising federal facial arguments, overbreadth arguments, 19 equal protection arguments, or any kind of procedural due process contention.” ECF No. 17 at 20 23–24. The Ninth Circuit has already rejected that argument, see Hirsh, 67 F.3d at 713, and 21 contrary to Roshan’s contentions, Hirsh remains good law and is binding on this Court.4 As the 22 4 Roshan discusses Hirsh at length in his opposition and then dubiously claims that “Hirsh might 23 control the outcome in this case but for the fact that five years later, intervening authority by the California Supreme Court was issued, In re Rose, [22 Cal. 4th 430 (2000)].” ECF No. 17 at 9; see 24 also id. at 24 (arguing that “Hirsh and the cases which cite to it are no longer binding precedent”). These contentions—unsupported by citation to any authority—are wrong: In re Rose did not 25 overrule or otherwise undermine the Ninth Circuit’s key decision in Hirsh, and the Ninth Circuit continues to hold, relying on Hirsh, that attorneys facing State Bar disciplinary proceedings have 26 adequate opportunity to raise federal constitutional claims in the California Supreme Court. See Canatella, 404 F.3d at 1111 (citing Hirsh, 67 F.3d at 711–12, 713); see also Kay v. State Bar of 27 California, No. 09-cv-1135 PJH, 2009 WL 1456433, at *3 (N.D. Cal. May 21, 2009) (citing Hirsh 1 Hirsh court emphasized, “[j]udicial review is inadequate only when state procedural law bars 2 presentation of the federal claims.” Id. (emphasis in original); see also Commc’ns Telesystems 3 Int’l v. California Pub. Util. Comm’n, 196 F.3d 1011, 1020 (9th Cir. 1999) (“Younger requires 4 only the absence of ‘procedural bars’ to raising a federal claim in the state proceedings.”). As the 5 party opposing abstention, Roshan has the burden of showing “that state procedural law barred 6 presentation of [his federal] claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (citation 7 omitted). He has not met that burden. 8 Nothing in California’s procedural rules governing review of State Bar Court disciplinary 9 decisions precludes Roshan from raising, or the California Supreme Court from considering, his 10 federal constitutional claims. As noted, an attorney may petition for review of a State Bar Court 11 decision recommending disbarment or suspension under California Rules of Court 9.13(a), as 12 Roshan has done here. The California Supreme Court then “thoroughly review[s] the attorney’s 13 contentions [presented in the petition] and the entire record, and reach[es] an independent 14 determination whether he or she should be disciplined as recommended.” In re Rose, 22 Cal. 4th 15 at 457. California Rules of Court 9.16(a)—the rule Roshan erroneously claims is a “procedural 16 barrier” to raising his federal constitutional arguments—simply sets forth the five circumstances in 17 which the California Supreme Court “will order review” of the State Bar Court’s decision (e.g., 18 “when it appears . . . [n]ecessary to settle important questions of law” or that the “[p]etitioner did 19 not receive a fair hearing” Cal. R. Ct. 9.16(a)). Moreover, the California Supreme Court has made 20 clear that it “retain[s] inherent authority to grant review in any disciplinary matter, 21 notwithstanding the criteria set forth in [that] rule.” In re Rose, 22 Cal. 4th at 459 (emphasis 22 added); see also id. at 441 (“Under the present scheme, we expressly retain the authority both to 23 grant review of any petition and to review any disciplinary recommendation on our own 24 motion.”). In short, “[t]he fact that review is discretionary does not bar presentation of [Roshan’s] 25 federal claims—[he] can raise the claims in a petition for review.” Hirsh, 67 F.3d at 713. 26

27 proceeding by the State Bar of California”); Robinson v. California State Bar, No. 15-mc-80129- 1 Relatedly, the fact that Roshan “withdrew and reserved all constitutional arguments” in the 2 State Bar Court proceedings and “only addresses non-constitutional issues” in his pending petition 3 for review does not change the analysis.5 ECF No. 30 at 4. His “failure to avail himself of the 4 opportunity [to raise federal claims] does not mean that the state procedures are inadequate.” 5 Gilbertson v. Albright, 381 F.3d 965, 983 (9th Cir. 2004) (en banc) (citing Juidice v. Vail, 430 6 U.S. 327, 337 (1977)); see also Pennzoil, 481 U.S. at 15 (“[W]hen a litigant has not attempted to 7 present his federal claims in related state-court proceedings, a federal court should assume that 8 state procedures will afford an adequate remedy.”). What matters is Roshan could have presented 9 his constitutional claims to the California Supreme Court. “No more is required to invoke 10 Younger abstention.” Juidice, 430 U.S. at 337. 11 Roshan also argues that the absence of recent California Supreme Court decisions granting 12 petitions for review raising federal constitutional issues in State Bar Court proceedings is proof 13 “that no such review is available.” ECF No. 17 at 16–17. This argument is unpersuasive. To 14 start, “[t]he fact that state courts may reject (or have rejected) arguments on the merits [] does not 15 mean those courts have deprived a plaintiff of the opportunity to make the argument.” Dubinka v. 16 Judges of Superior Court of State of Cal. for Cty. of Los Angeles, 23 F.3d 218, 224–25 (9th Cir. 17 1994) (emphasis in original; ellipsis and citation omitted) (applying Younger even though state 18 courts are compelled to reject a federal constitutional claim under state precedent; relying on 19 absence of procedural bar to raising the federal claim). And more importantly, refusing to abstain 20 here “would require presuming that the California Supreme Court will not adequately safeguard 21 federal constitutional rights, a presumption the U.S. Supreme Court squarely rejected in 22 Middlesex, 457 U.S. at 431.” Hirsh, 67 F.3d at 713; see also Confederated Tribes of Colville 23 Reservation v. Superior Court of Okanogan Cty., 945 F.2d 1138, 1141 (9th Cir. 1991) (noting 24 “[t]he supremacy clause of the Constitution requires state judges to discern and apply federal law 25 5 The Ninth Circuit has rejected attempts by plaintiffs to evade Younger abstention by declining to 26 pursue their federal claims in state court proceedings. See, e.g., Beltran, 871 F.2d at 783 & n.8. (explaining that “when Younger abstention applies, federal plaintiffs cannot reserve their federal 27 claim from state court adjudication for later decision by the federal court”; “Younger abstention 1 where it is controlling”; rejecting argument based on presumption that state judges “will not do so 2 unless a federal court tells them to”). This the Court declines to do. 3 4. Interference 4 The fourth and final Younger requirement—that the federal action “would ‘interfere’ with 5 the ongoing state proceeding (i.e., enjoin or have the practical effect of enjoining the 6 proceeding)”—is also satisfied here. City of San Jose, 546 F.3d at 1095–96 (citation omitted). 7 Roshan seeks, among other equitable relief, an injunction stopping Defendants from advancing his 8 and all other attorney disciplinary proceedings and an order declaring California’s attorney 9 discipline system unconstitutional. 10 5. Extraordinary Circumstances Exception 11 Even when the requirements for Younger abstention are satisfied, federal intervention may 12 be appropriate if the “state proceedings are conducted in bad faith or to harass the litigant, or other 13 extraordinary circumstances exist,” Baffert v. California Horse Racing Bd., 332 F.3d 613, 621 (9th 14 Cir. 2003), like when a state statute “flagrantly and patently” violates “express constitutional 15 prohibitions in every clause, sentence and paragraph, and in whatever manner and against 16 whomever” it is applied,” Younger, 401 U.S. at 53–54 (citation omitted). Roshan argues that the 17 “bad faith” and “extraordinary circumstances” exceptions to Younger apply here because, 18 according to him, the State Bar procedural rules are “plainly unconstitutional” and devoid of 19 federal due process protections. See ECF No. 17 at 21–24. These unsupported contentions fall 20 woefully short of establishing an exception for bad faith or any other extraordinary circumstance. 21 Bad faith in the Younger context “means that a prosecution has been brought without a 22 reasonable expectation of obtaining a valid conviction,” and requires “evidence of bad faith, such 23 as bias against Plaintiff, or of a harassing motive.” Baffert, 332 F.3d at 621. There are no 24 allegations (let alone evidence) to that effect here, and nothing in the record suggests that the State 25 Bar pursued disciplinary charges against Roshan without reasonable expectation of success, or 26 solely to harass him. See Juidice, 430 U.S. at 338 (holding that “unless it is alleged and proved 27 that [state adjudicators] are enforcing the [state] procedures in bad faith or are motivated by a 1 Roshan’s rambling diatribes about the California Supreme Court’s alleged refusal to protect 2 federal constitutional rights (see, e.g., ECF No. 17 at 8–25; Compl. ¶¶ 9–10, 19, 33, 35, 37) can be 3 construed as an attempt to allege bias, Roshan likewise “fails to offer any ‘actual evidence’ to 4 overcome the ‘presumption of honesty and integrity in those serving as adjudicators.’” Canatella, 5 404 F.3d at 1112 (quoting Hirsh, 67 F.3d at 713–14). 6 Roshan’s claim that State Bar rules are “plainly unconstitutional” also “does not, by itself, 7 support an extraordinary circumstances exception to Younger abstention.” Id.; see also Baffert, 8 332 F.3d at 621 (noting that the Supreme Court “has repeatedly rejected the argument that a 9 constitutional attack on state procedures themselves automatically vitiates the adequacy of those 10 procedures for purposes of the Younger-Huffman line of cases”) (citation and internal quotation 11 marks omitted). And Roshan has not come close to demonstrating that Younger’s rare exception 12 for “flagrantly and patently” unconstitutional statutes—i.e., statutes that are “violative of express 13 constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and 14 against whomever” they might be applied—is implicated here. Younger, 401 U.S. at 53–54. This 15 exception is “very narrow” and may not be utilized “if the constitutionality of the state statute is 16 unclear or if the statute may be applied constitutionally in some cases.” Dubinka, 23 F.3d at 225. 17 For instance, Roshan alleges “the applications of the [State Bar Court’s] Rules of Procedure are 18 unconstitutional in a majority of the cases brought by the OCTC since 2010.” Compl. ¶ 36 19 (emphasis added); see also id. ¶¶ 22–27 (listing “instances” and “cases” in which the State Bar 20 rules allegedly violate constitutional rights). Thus, by his own implicit admission, the State Bar 21 rules are not patently unconstitutional in “every clause, sentence and paragraph” and in “whatever 22 manner and against whomever” they are applied. See Dubinka, 23 F.3d at 225 (holding that, “even 23 if appellants are correct that some applications of Proposition 115 are unconstitutional, the 24 [challenged] provisions are not so ‘flagrantly and patently’ unconstitutional as to invoke federal 25 jurisdiction”). And in any event, the Ninth Circuit has previously found that California’s State Bar 26 rules do not fall within the patently unconstitutional exception contemplated by Younger. See 27 Hirsh, 67 F.3d at 714; see also Canatella, 404 F.3d at 1112. 1 would warrant departure from the “longstanding public policy against federal court interference 2 with state court proceedings.” Younger, 401 U.S. at 43. 3 * * * 4 Having determined that Younger applies without exception, abstention in favor of the state 5 proceedings is required. Because Roshan seeks injunctive and declaratory relief but not damages, 6 the Court must abstain permanently and dismiss this action. See Gilbertson, 381 F.3d at 981 7 (“When an injunction is sought and Younger applies . . . dismissal (and only dismissal) is 8 appropriate.”).6 9 B. Motion for Leave to Amend 10 Given that this action is barred by Younger abstention, Roshan’s motion for leave to file an 11 amended complaint is denied as futile.7 See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) 12 (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”); Saul v. 13 United States, 928 F.2d 829, 843 (9th Cir. 1991) (affirming denial of leave to amend “where the 14 amendment would be futile or where the amended complaint would be subject to dismissal”). 15 Roshan argues, incorrectly, that “[e]ven if this Court does decide that abstention is 16 appropriate, it can simply elect to stay the action until the California Supreme Court has acted on 17 Plaintiff’s petition for review, then grant leave to amend, or defer its decision [on the motion to 18 dismiss”] as requested in the pending motion to defer.” ECF No. 33 at 9. Under binding 19 precedent, neither course of action is permissible: “Where Younger abstention is appropriate, a 20 district court cannot refuse to abstain, retain jurisdiction over the action, and render a decision on 21 the merits after the state proceedings have ended. To the contrary, Younger abstention requires 22

23 6 In contrast, when damages are sought and Younger applies, “an abstention-based stay order, rather than a dismissal, is appropriate.” Gilbertson, 381 F.3d at 975. 24 7 Because Younger abstention is appropriate, the Court finds it unnecessary to address Defendants’ arguments against amendment. The Court does note, however, that Defendants are correct that 25 Roshan’s motion to amend is improper because the proposed amended complaint—which Roshan seeks to file “on or after February 4, 2021,” when he prophesizes the California Supreme Court 26 will have denied his pending petition for review—is incomplete, leaving a placeholder for a future date (see ECF No. 28-1 ¶ 30, “ROSHAN filed a petition for review with the California Supreme 27 Court, which was denied on __________, 2021”), and impermissibly pleads speculative possible ] dismissal of the federal action.” Beltran, 871 F.2d at 782 (emphasis in original);* see also Gibson 2 || v. Berryhill, 411 U.S. 564, 577 (1973) (“Younger v. Harris contemplates the outright dismissal of 3 the federal suit, and the presentation of all claims, both state and federal, to the state courts.”). 4 || I. CONCLUSION 5 For the reasons set forth above, the Court declines to exercise jurisdiction in this case 6 || under the Younger abstention doctrine. Defendants’ motion to dismiss (ECF No. 9) is granted; 7 || Roshan’s motion for leave to file an amended complaint (ECF No. 28) is denied as futile; 8 || Roshan’s motion to defer consideration of the motion to dismiss (ECF No. 30) is denied as moot; 9 || and all other pending motions are denied as moot. The Clerk of the Court is directed to enter 10 || judgment of dismissal without prejudice and close the case file. 1] IT ISSO ORDERED. 12 || Dated: January 18, 2021

13 «4 EEG TSE United States Magistrate Judge 2 15 16

Z 18 19 20 21 22 23 24 25 26 s Roshan cites to this portion of Be/tran in his untimely filed reply in support of leave to amend 97 || and, citing inapposite decisions, argues that “this Court is barred from relying on Beltran” because “Beltran and the cases it relies upon have been invalidated by intervening United States Supreme 28 Court and en bane Ninth Circuit opinions.” ECF No. 33 at 4, 7. These arguments are rejected as meritless.