Steinmeyer v. Laboratory Corporation of America Holdings

Opinion

1 2 3 4 5 6 7 10 Case No.: 22-cv-01213-DMS-DDL RANDALL HENRI STEINMEYER,

11 Plaintiff, ORDER GRANTING DEFENDANTS’ 12 v. MOTIONS TO DISMISS AMERICA HOLDINGS, a Delaware 14 corporation; GEORGE MAHA, an 15 individual; GARY BUBIS, as Judge of Superior Court of San Diego; ROB 16 BONTA, as Attorney General of 17 California, 18 Defendants. 19 20 Before the Court are Defendants’ Motions to Dismiss. (ECF Nos. 6, 8, 9, 36.) For 21 the following reasons, Defendants’ Motions to Dismiss are GRANTED. Plaintiff’s claims 22 against Defendants Laboratory Corporation of America Holdings (“Labcorp”), George 23 Maha (“Maha”), Attorney General Rob Bonta (“Bonta”), and San Diego Superior Court 24 Judge Gary Bubis (“Bubis”) are DISMISSED WITHOUT LEAVE TO AMEND. 26 In March 2017, Defendant Labcorp administered a “motherless 2 person test[]” 27 pursuant to a court order in a state court dependency proceeding. (First Amended Compl. 28 (“FAC”) ¶¶ 53, 141, ECF No. 4.) The test determined that Plaintiff was the biological 1 father of the minor child and the court so decreed. (FAC ¶ 71.) Accordingly, the state 2 court issued several Income Withholding Orders against Plaintiff for child support between 3 2018 and 2022. (See Def. Bubis’s Mot. to Dismiss, Ex. D, ECF No. 8-2.) Plaintiff alleges 4 that Defendants Labcorp and Maha have concealed a portion of the paternity test or 5 generated false test results. (FAC ¶¶ 196, 203, 205–08.) Plaintiff claims that Defendants 6 Labcorp and Maha lied to Plaintiff about the validity of the paternity test they administered, 7 (FAC ¶ 74), and Plaintiff argues that Defendant Maha “caused or otherwise induced a judge 8 . . . to hide the material DNA and therefore the paternity evidence.” (FAC ¶ 185.) In this 9 Action, Plaintiff seeks primarily money damages against Defendants Labcorp and Maha, 10 and injunctive relief against Defendants Bonta and Bubis in the form of an order 11 commanding them to stop withholding Plaintiff’s income for child support. 12 The procedural history of this case is convoluted. Plaintiff filed this action on 13 August 18, 2022, (ECF No. 1), and filed an amended complaint on November 8, 2022. 14 (See generally FAC.) Against Defendants Labcorp and Maha, Plaintiff brought various 15 state tort law claims, (id. ¶¶ 198–211, 264–69), claims alleging violations of the California 16 Business and Professional Code, (id. ¶¶ 212–25), and claims alleging violations of the 17 California Family Code, (id. ¶¶ 226–53). Against Defendant Labcorp only, Plaintiff 18 brought claims for breach of contract, (id. ¶¶ 257–60), negligent manufacture, (id. ¶¶ 261– 19 63), strict products liability, (id. ¶¶ 270–73), and a Sherman Act claim, (id. ¶¶ 274–78). 20 Lastly, Plaintiff brought claims under 42 U.S.C. § 1983 against Defendants Bonta and 21 Bubis for constitutional violations. (Id. ¶¶ 279–86.) Plaintiff alleges that the paternity test 22 results published in court and related court orders injured him primarily in the following 23 two ways: First, after the genetic test yielded positive results of Plaintiff’s paternity, the 24 state court decreed Plaintiff to be the father of the minor child and accordingly ordered a 25 portion of his income be withheld for child support. (See id. ¶ 184.) And second, Plaintiff 26 was required to reimburse the state for the cost of the test because it yielded positive 27 evidence of Plaintiff’s paternity. (See id. ¶ 190.) Nowhere in the FAC does Plaintiff plainly 28 allege that he is not the father of minor child. 1 Defendants Labcorp, Maha, and Bubis timely filed motions to dismiss. (See ECF 2 Nos. 6, 8, 9.) On January 6, 2023, Plaintiff moved for entry of default judgment against 3 Defendant Bonta. (Pl.’s Req. for Entry of Default J., ECF No. 16.) On February 10, 2023, 4 Plaintiff filed an ex parte application for temporary restraining order (TRO) against 5 Defendant Bonta seeking an order from this Court “to enjoin Defendant Bonta from taking 6 Plaintiff’s property using fictitious, non-statutory test results, immediately.” (Pl.’s Ex 7 Parte Appl. for TRO at 2, ECF No. 28.) The Court denied the application for lack of 8 jurisdiction over the claim. (ECF No. 27.) Then, on March 1, 2023, in response to 9 Plaintiff’s Motion for Default Judgment against Defendant Bonta, the Court ordered 10 Plaintiff to show cause why his claim against Defendant Bonta should not be dismissed for 11 lack of subject matter jurisdiction. (ECF No. 34.) 12 On March 2, 2023, Plaintiff filed a motion for leave to file a second amended 13 complaint. (ECF No. 35.) And on March 8, 2023, Defendant Bonta filed a Motion to 14 Dismiss for Lack of Jurisdiction and Failure to State a Claim. (ECF No. 36.) 15 Then on March 10, 2023, Plaintiff filed a second ex parte application for a TRO 16 against Defendants Labcorp and Maha, alleging that they had concealed some portions of 17 the results of the paternity test they administered in 2017, and seeking an order to “forc[e]” 18 them to disclose the entirety of the results. (Pl.’s Ex Parte Appl. for TRO, ECF No. 37; 19 Pl’s Mem. in Supp. of Ex Parte Appl. for TRO at 16 n.8, ECF No. 37-1.) The Court denied 20 the application due to Plaintiff’s failure to show irreparable harm. (ECF No. 39.) 21 On April 17, 2023, the Court denied Plaintiff’s motion for leave to file a second 22 amended complaint. (ECF No. 54.) 24 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 25 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 26 Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal 27 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 28 a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, 1 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 2 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 3 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 5 “Determining whether a complaint states a plausible claim for relief will . . . be a context- 6 specific task that requires the reviewing court to draw on its judicial experience and 7 common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief 8 above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged 9 [his] claims across the line from conceivable to plausible,” the complaint “must be 10 dismissed.” Id. at 570. 11 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 12 “accept factual allegations in the complaint as true and construe the pleadings in the light 13 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 14 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 15 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 16 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 17 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). A court may also 18 consider “matters of judicial notice” in ruling on a motion to dismiss. United States v. 19 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 20 Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss for 21 lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When ruling on such a 22 motion, a court may consider extrinsic evidence beyond the face of the complaint. Wolfe 23 v. Stankman, 392 F.3d 358, 362 (9th Cir. 2004). A challenge for lack of subject matter 24 jurisdiction “may be raised by a party, or by a court on its own initiative, at any stage in 25 the litigation, even after trial and the entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 26 500, 506 (2006). 27 When a court grants a motion to dismiss a complaint, it must then decide whether to 28 grant leave to amend. Leave to amend should be “freely given” where there is no (1) 1 “undue delay,” (2) “bad faith or dilatory motive,” (3) “undue prejudice to the opposing 2 party” if amendment were allowed, or (4) “futility” in allowing amendment. Foman v. 3 Davis, 371 U.S. 178, 182 (1962). Dismissal without leave to amend is proper only if it is 4 clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest 5 Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). “Leave need not be granted where the 6 amendment of the complaint . . . constitutes an exercise in futility . . . .” Ascon Props., Inc. 7 v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 9 In this Action, Plaintiff brings twenty claims against four defendants. Plaintiff 10 brings the following claims against both Defendants Labcorp and Maha: negligent 11 misrepresentation, fraudulent concealment, negligence per se, violation of the California 12 Consumer Legal Remedies Act, violation of the California False Advertising Act, violation 13 of the California Unfair Competition Law, various violations of the California Family 14 Code, battery, conversion, and false imprisonment. Plaintiff brings the following claims 15 against Defendant Labcorp only: breach of contract, negligent manufacture, strict product 16 liability, and a violation of § 2 of the Sherman Act. Finally, Plaintiff brings claims for 17 constitutional violations under 42 U.S.C. § 1983 against Defendants Bonta and Bubis. For 18 the reasons explained below, the Court GRANTS Defendants’ Motions to Dismiss without 19 leave to amend. 20 A. Family Code Claims 21 Plaintiff alleges that Defendants Labcorp and Maha violated California Family Code 22 §§ 7551, 7552, 7552.5, 7554, and 7555. (FAC ¶¶ 226–53, counts seven–eleven). These 23 statutes govern the use of blood tests in paternity proceedings to determine parentage. 24 Defendants argue that California law provides no private right of action permitting Plaintiff 25 to bring claims for damages for violations of the Family Code. The Court agrees. 26 “A violation of a state statute does not necessarily give rise to a private cause of 27 action.” Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592, 596 (2010). A private 28 cause of action exists when a statute “contain[s] ‘clear, understandable, unmistakable 1 terms,’ which strongly and directly indicate that the Legislature intended to create a private 2 cause of action.” Id. at 597 (quoting Moradi-Shalal v. Fireman’s Fund Ins. Cos., 46 Cal. 3 3d 287, 295 (1988)); see, e.g., Cal. Civ. Code § 51.9 (“A person is liable in a cause of 4 action for sexual harassment” when a plaintiff proves certain elements); Cal. Health & 5 Safety Code § 1285(c) (“Any person who is detained in a health facility solely for the 6 nonpayment of a bill has a cause of action against the health facility for the detention . . . 7 .”); Cal. Bus. & Prof. Code § 17070 (“Any person . . . may bring an action to enjoin and 8 restrain any violation of this chapter and, in addition thereto, for the recovery of 9 damages.”). If a private cause of action is not apparent in the text of the statute, California 10 courts look to legislative history to determine whether “the Legislature intended to create 11 a private cause of action.” Lu, 50 Cal. 4th at 597. 12 The text of California Family Code §§ 7551–55 contains no language authorizing a 13 private cause of action as a remedy for violations of those statutes. Section 7551 provides 14 a legal standard governing when a court may order genetic testing on its own motion or on 15 the motion of the parties in a “civil action or proceeding in which parentage is a relevant 16 fact.” Cal. Fam. Code § 7551(a). Sections 7552 and 7552.5 provide a set of evidentiary 17 and procedural rules governing the admission of genetic tests results as evidence in a 18 “hearing or trial to establish parentage.” Cal. Fam. Code § 7552.5(b). Sections 7554 and 19 7555 set rules for when a positive test creates a presumption of paternity, and specify the 20 process by which a presumed genetic parent may challenge the presumption. None of these 21 statutes create a private cause of action. Instead, these statutes function as part of a 22 comprehensive framework to provide procedural and evidentiary rules governing the “use 23 of genetic testing in a proceeding to determine parentage.” Cal. Fam. Code § 7550(b). 1 24 / / / 25 26 27 1 In fact, the chapter of the California Family Code governing the use of blood tests to determine parentage, §§ 7550 – 7562, was formerly codified in the California Evidence Code at §§ 890–897 before 28 1 Nor is the Court aware of any legislative history evincing the Legislature’s intent to 2 create a private cause of action to enforce the provisions of the California Family Code 3 governing the use of blood tests as evidence for determining parentage. The Senate and 4 Assembly Floor Analyses of the Legislature’s latest amendment revision to these statutes 5 make no mention of any intent to create a private cause of action. See Assembly Floor 6 Analysis on A.B. 2684, Assemb. 2017–18 Reg. Sess. (Cal. Aug. 30, 2018); Senate Floor 7 Analysis on A.B. 2684, S. 2017–18 Reg. Sess. (Cal. Aug. 27, 2018). And Plaintiff’s 8 Responses in Opposition to Defendants Labcorp and Maha’s Motions to Dismiss provide 9 no argument as to why he has a cause of action under the California Family Code provisions 10 under which he asserts his claims. Further, as other courts have noted, California Family 11 Code §§ 7551–55 “do[] not create a duty of care on the part of LabCorp” to Plaintiff, 12 Falcon v. Long Beach Genetics, Inc., 224 Cal. App. 4th 1263, 1270 n.5 (2014), because, 13 as explained above, the statutes only prescribe a set of procedural and evidentiary rules and 14 governing the “use of genetic testing in a proceeding to determine parentage,” Cal. Fam. 15 Code § 7550(b). Lastly, the Court is aware of no case in which a plaintiff has brought a 16 private cause of action under California Family Code §§ 7551, 7552, 7552.5, 7554, or 17 7555; nor has Plaintiff brought any such case to the attention of the Court. This confirms 18 the Court’s conclusion. 19 Plaintiff could have sought a remedy for violations of California Family Code §§ 20 7551–55 in two ways: (1) he could have timely appealed the trial court’s alleged error, or 21 (2) he could have challenged the paternity determination with “other genetic testing 22 satisfying the requirements of” the California Family Code “that either excludes the person 23 as a genetic parent of the child or identifies another person as a possible genetic parent.” 24 Cal. Fam. Code § 7555(b).2 A collateral suit for damages in federal court, however, is not 25 a remedy Plaintiff may pursue. Accordingly, the court grants Defendants Labcorp and 26

27 2 Section 7560 provides that “[t]he court . . . shall order additional genetic testing upon the request of a 28 1 Maha’s Motions to Dismiss Plaintiff’s claims alleging violations of the California Family 2 Code. Because there is no private right of action, leave to amend would be futile. See 3 Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 4 1983) (“[F]utile amendments should not be permitted.”). Plaintiff’s claims for violations 5 of the California Family Code are dismissed with prejudice. 6 B. Other State Law Claims Against Labcorp and Maha 7 Defendants Labcorp and Maha argue that all of Plaintiff’s state law claims are barred 8 by California’s litigation privilege. (Def. Labcorp’s Mem. of P. & A. in Supp. of Mot. to 9 Dismiss (“Def. Labcorp’s Mem.”) at 3–4, ECF No. 6-1; Def. Maha’s Mem. of P. & A. in 10 Supp. of Mot. to Dismiss (“Def. Maha’s Mem.”) at 3–4, ECF No. 9-1.) For the reasons 11 explained below, the Court concludes that all of Plaintiff’s remaining state court claims3 12 are barred by the litigation privilege.4 13 1. California Litigation Privilege 14 Under California law, a publication or broadcast made in any judicial proceeding is 15 privileged. Cal. Civ. Code § 47(b); see also Action Apartment Ass’n v. City of Santa 16 Monica, 41 Cal. 4th 1232, 1241 (2007) (interpreting Cal Civ. Code § 47(b)). The litigation 17 privilege has “been held to immunize defendants from tort liability” based on a broad array 18 of legal theories. Silberg v. Anderson, 50 Cal. 3d 205, 215–16 (1990); see also Olsen v. 19 Harbison, 191 Cal. App. 4th 325, 333 (2010) (“It immunizes defendants from virtually any 20 tort liability . . . with the sole exception of causes of action for malicious prosecution.”). 21 “The principal purpose of [the litigation privilege] is to afford litigants and witnesses . . . 22

23 3 This includes Plaintiff’s following claims against Defendants Labcorp and Maha: negligent 24 misrepresentation (count one), fraudulent concealment (count two), negligence per se (count three), 25 violation of the California Consumer Legal Remedies Act (count four), violation of the California False Advertising Act (count five), violation of the California Unfair Competition Law (count six), battery 26 (count twelve), conversion (count fifteen), and false imprisonment (count sixteen); and the following claims against Defendant Labcorp only: third party contract (count thirteen), negligent manufacture 27 (count fourteen), and strict liability (count seventeen). 4 Because the Court concludes that the California Family Code claims fail for lack of a private cause of 28 1 the utmost freedom of access to the courts without fear of being harassed subsequently by 2 derivative tort actions.” Silberg, 50 Cal. 3d at 213. “In order to achieve this purpose of 3 curtailing derivative lawsuits,” the California Supreme Court has given the litigation 4 privilege “a broad interpretation.” Action Apartment Ass’n, 41 Cal. 4th at 1241. 5 “Despite its broad and absolute nature, the litigation privilege only protects 6 publications and communications.” Falcon, 224 Cal. App. 4th at 1272. 7 “[A] threshold issue in determining the applicability of the privilege is whether the defendant’s conduct was communicative or noncommunicative. . 8 . . The distinction between communicative and noncommunicative conduct 9 hinges on the gravamen of the action. . . . That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an 10 act that was communicative in its essential nature.” 11 12 Id. (quoting Rusheen v. Cohen, 37 Cal. 4th 1048, 1058 (2006)) (emphasis added). 13 And, if the gravamen of the action is based on a communicative act, “the litigation privilege extends to noncommunicative acts that are necessarily 14 related to the communicative conduct . . . . [U]nless it is demonstrated that an 15 independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” 16

17 Id. at 1272–73 (quoting Rusheen, 37 Cal. 4th at 1065). Thus, to determine whether the 18 litigation privilege applies, a court must determine whether the injury complained of was 19 caused by “an act that was communicative in its essential nature,” Rusheen, 37 Cal. 4th at 20 1058, which occurred as part of a judicial proceeding. 21 Courts in California have applied the litigation privilege against claims related to 22 court-ordered paternity tests. See Falcon, 224 Cal. App. 4th at 1273–78 (holding that the 23 litigation privilege shielded a laboratory’s production of erroneous paternity test results 24 from tort liability because the test was conducted in connection with paternity proceeding 25 in court); Garnica v. Lab’y Corp. of Am. Holdings, No. 20-cv-02411, 2021 WL 4065717 26 (E.D. Cal. Sept. 7, 2021) (same). 27 / / / 28 / / / 1 2. Analysis 2 The injuries alleged in each of Plaintiff’s remaining state law claims stem from the 3 announcement of the paternity test results in state court or preceding noncommunicative 4 acts that were necessarily related to the communication. Defendants Labcorp and Maha 5 conducted the genetic test pursuant to a court order and announced the results of the test in 6 a judicial proceeding. (See Benoff Decl. in Supp. of Def. Labcorp’s Mot. to Dismiss, Ex. 7 A, ECF No. 6-3.5) The genetic test results showed that Plaintiff was the genetic father, and 8 as a result, the state court issued several Income Withholding Orders against Plaintiff for 9 child support between 2018 and 2022. (See Def. Bubis’s Mot. to Dismiss, Ex. D, ECF No. 10 8-2.) In addition, the court ordered Plaintiff to pay for the cost of administering the genetic 11 test. (FAC ¶ 93.) These two injuries appear to be the basis of all of Plaintiff’s remaining 12 state law claims, (see id. ¶¶ 73, 83–84, 93), except for the battery and false imprisonment 13 claims. Because these two injuries are both the result of a communicative act that occurred 14 in a judicial proceeding—i.e., the communication of the court ordered paternity test results 15 to the court—Plaintiff’s state law claims based on these injuries are barred by the litigation 16 privilege.6 Courts in California have applied the litigation privilege to claims of 17 negligence, negligent misrepresentation, and fraud, see, e.g., Rubenstein v. Rubenstein, 81 18 Cal. App. 4th 1131, 1147 (2000); and statutory violations of the California Business and 19 Professional Code, see, e.g., Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125 (2014) 20 (“When . . . the litigation privilege . . . renders the conduct complained of immune from 21 tort liability, a plaintiff cannot use the [Unfair Competition Law] to ‘plead around’ that 22 23

24 25 5 The Court takes judicial notice of the state court’s order for genetic testing. In re Kathryn Steinmeyer, No. CJ1363 (Cal. Super. Ct. San Diego Cnty. Mar. 24, 2017) (order for genetic testing). 26 6 This includes the following claims: negligent misrepresentation (count one), fraudulent concealment (count two), negligence per se (count three), violation of the California Consumer Legal Remedies Act 27 (count four), violation of the California False Advertising Act (count five), violation of the California Unfair Competition Law (count six), breach of contract (count thirteen), negligent manufacture (count 28 1 immunity.”) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 2 182 (Cal. 1999)). 3 Plaintiff’s battery and false imprisonment claims are barred by the litigation 4 privilege as well. For his battery claim, plaintiff alleges his injury to be the following: 5 “Defendants caused Plaintiff to be touched with the intent to harm or offend him. . . . 6 Defendant [Labcorp] touched plaintiff for purposes of pretending to conduct a paternity 7 test . . . . Plaintiff consented to a paternity test, not a meaningless test.” (FAC ¶ 255.) 8 However, “the litigation privilege extends not only to defendants’ communication of the 9 genetic test results, but [to] the noncommunicative act of the DNA testing itself that is 10 necessarily related to the communication” as well. Falcon, 224 Cal. App. 4th at 1275; see 11 also Rusheen, 37 Cal. 4th at 1057 (explaining that the privilege “is not limited to statements 12 made during a trial or other proceedings, but may extend to steps taken prior thereto, or 13 afterwards”). California courts have applied the litigation privilege to claims of battery. 14 See, e.g., Hunsucker v. Sunnyvale Hilton Inn, 23 Cal. App. 4th 1498, 1502–05 (1994) 15 (concluding that claims of false imprisonment, assault, and battery were barred by the 16 litigation privilege because they stemmed from a “report[] made by citizens to police 17 regarding potential criminal activity,” which are communications made for the purpose of 18 litigation). Therefore, Plaintiff’s battery claim is barred by the litigation privilege. 19 The same is true for Plaintiff’s false imprisonment claim. For this claim, Plaintiff 20 alleges his injury to be the following: “[T]he meaningless, albeit positive ‘test,’ caused 21 plaintiff to be restrained, confinement [sic] and detained in meaningless proceedings . . . 22 throughout 2017 and 2018 and . . . intermittently through 2022.” (FAC ¶ 267.) Plaintiff 23 argues that because of the positive paternity test and the state court’s resulting 24 determination of paternity, he was required to attend subsequent court proceedings related 25 to the paternity proceeding. This “injury” stems from Defendants’ Labcorp and Maha’s 26 act of reporting the paternity test to the state court, “an act that was communicative in its 27 essential nature.” Rusheen, 37 Cal. 4th at 1058. California courts have applied the 28 1 litigation privilege to claims of false imprisonment. See, e.g., Hunsucker, 23 Cal. App. 4th 2 at 1502–05. Therefore, this claim too is barred by the litigation privilege. 3 For the reasons explained above, the Court grants Defendants’ Labcorp and Maha’s 4 Motions to Dismiss Plaintiff’s remaining state claims. The claims are dismissed with 5 prejudice because there would be no way for Plaintiff to plead around the key defect that 6 the paternity test was conducted pursuant to court order. See Klamath-Lake Pharm. Ass’n, 7 701 F.2d at 1293 (“[F]utile amendments should not be permitted.”). Because the Court 8 concludes that all of Plaintiff’s remaining state law claims against Defendants Labcorp and 9 Maha are barred by the litigation privilege and dismisses the claims with prejudice, it need 10 not consider Defendants’ other arguments. 11 C. Sherman Act Claim 12 Plaintiff’s Sherman Act claim alleges that Labcorp’s acquisition of Orchid Labs in 13 2011 had the effect of “controlling prices or excluding competition,” and “has destroyed 14 the commercial paternity testing market and caused injury to Plaintiff.” (FAC ¶¶ 275–78.) 15 Defendants argue that this claim fails because it is both untimely and based on 16 demonstrably false allegations. (Def. Labcorp’s Mem. at 7–10.) The Court agrees and 17 grants Defendants’ Motion to Dismiss. Because no amendment can cure these central 18 defects, Plaintiff’s Sherman Act claim is dismissed with prejudice. 19 1. Statute of Limitations 20 Plaintiff’s Sherman Act claim fails because it is barred by a rigid four-year statute 21 of limitations. Any action alleging a Sherman Act claim “shall be forever barred unless 22 commenced within four years after the cause of action accrued.” 15 U.S.C. § 15b. Plaintiff 23 alleges that Labcorp violated Section 2 of the Sherman Act when it acquired Orchid Labs 24 in 2011. Plaintiff brought his claim in 2022—eleven years after the alleged acquisition 25 injured him. And even if Plaintiff’s claim had accrued in 2017, when the paternity test 26 took place, his claim brought in 2022 would still be outside the four-year limitations period. 27 In his Opposition, Plaintiff argues that his claim is timely because “[a] cause of 28 action in antitrust accrues each time a plaintiff is injured by an act of the defendant and the 1 statue of limitations runs from the commission of the act.” (Pl.’s Opp’n at 12, ECF No. 24 2 (quoting Intel Corp. v. Fortress Inv. Grp. LLC, No. 19-cv-07651-EMC, 2020 WL 6390499, 3 at *19 (N.D. Cal. July 15, 2020)) (alteration in original).) Plaintiff argues that he has 4 continued to be injured by Defendant’s conduct through 2022. (Pl.’s Opp’n at 12–13.) 5 However, this argument fails because Plaintiff does not allege any such continuing injury 6 in the FAC. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 7 2002) (“Ordinarily, a court may look only at the face of the complaint to decide a motion 8 to dismiss.”). Plaintiff has pointed to no act committed within the limitations period. 9 And Plaintiff cannot raise a discovery rule argument that his claim did not accrue 10 until he discovered it in 2022. It is settled law that there is no discovery rule for antitrust 11 actions governed by 15 U.S.C. § 15(b). See Beneficial Standard Life Ins. Co. v. Madariaga, 12 851 F.2d 271, 274–75 (9th Cir. 1988) (“In [antitrust] actions governed by 15 U.S.C. § 15b, 13 the plaintiff's knowledge is generally irrelevant to accrual, which is determined according 14 to the date on which injury occurs.”); see also In re Packaged Seafood Prods. Antitrust 15 Litig., No. 15-md-2670, 2017 WL 35571, at *14 (S.D. Cal. Jan. 3, 2017) (concluding that 16 the discovery rule does not apply to Sherman Act claims); In re Animation Workers 17 Antitrust Litig., 87 F. Supp. 3d. 1195, 1208–10 (N.D. Cal. 2015) (collecting cases across 18 circuits and concluding that the discovery rule does not apply to antitrust cases). 19 2. Demonstrably False Basis 20 Plaintiff’s Sherman Act claim fails for the separate and independent reason that the 21 alleged basis for the claim is demonstrably false. “A Section 2 monopolization claim ‘has 22 two elements: (1) the possession of monopoly power in the relevant market and (2) the 23 willful acquisition or maintenance of that power as distinguished from growth or 24 development as a consequence of a superior product, business acumen, or historic 25 accident.’” Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 998 (9th Cir. 2023) (quoting 26 United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966)). Plaintiff alleges that 27 Labcorp obtained monopoly power over the paternity testing market when it acquired the 28 paternity testing business of the company Orchid Labs. (FAC ¶ 275.) This is demonstrably 1 false. After Labcorp agreed to acquire Orchid in 2011, the Federal Trade Commission 2 ordered Labcorp to sell Orchid’s paternity testing business to DNA Diagnostic Corp. 3 (DDC) within ten days of Labcorp’s acquisition of Orchid. Decision and Order, Lab’y 4 Corp. of Am. Holdings, FTC Docket No. C-4341, at 7 (Jan. 30, 2012).7 This confirms that 5 Labcorp never willfully acquired or maintained monopoly power as a result of its 6 acquisition of Orchid in 2011–12. 7 Therefore, the Court grants Defendants Labcorp and Maha’s Motion to Dismiss the 8 Sherman Act claim. The claim is dismissed with prejudice because leave to amend would 9 be futile: The claim will always be untimely and cannot be saved by a discovery rule 10 argument; and Plaintiff will not be able to show that the second element of a Section 2 11 claim can be satisfied by Labcorp’s acquisition of Orchid Labs. 12 D. Section 1983 Claim Against Defendant Bonta 13 Plaintiff brings a claim against Defendant Bonta under 42 U.S.C. § 1983 for a 14 violation of the Fifth and Fourteenth Amendments to the United States Constitution. (FAC 15 ¶¶ 279-81.) Plaintiff alleges that Defendant Bonta “oversees the garnishment of Plaintiffs 16 accounts using non-statutory test and non-statutory procedure to result in significant 17 takings on Plaintiff.” (Id. ¶ 281.) The remedy Plaintiff seeks for this claim is injunctive 18 relief in the form of an order commanding Defendant Bonta to stop withholding his income. 19 (Id. ¶ 282.) Bonta argues that this Court lacks jurisdiction to hear Plaintiff’s claim because 20 it is a forbidden de facto appeal of a state court judgment. (Def. Bonta’s Mot. to Dismiss 21 at 3, ECF No. 36.) The Court agrees.8 22 The Rooker-Feldman doctrine bars federal courts from adjudicating actions 23 “brought by state-court losers complaining of injuries caused by state-court judgments 24 25 7 The Court takes judicial notice of the FTC Decision and Order, which are public records. 26 8 The Court need not consider the issue of whether Defendant Bonta’s Motion to Dismiss was timely. The Court may consider Defendant Bonta’s motion to the extent it raises a challenge for lack of subject 27 matter jurisdiction because a challenge for lack of subject matter jurisdiction “may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of 28 1 rendered before the district court proceedings commenced.” Exxon Mobile Corp. v. Saudi 2 Basic Indus. Corp., 544 U.S. 280, 284 (2005). This is because a federal court is a court of 3 limited jurisdiction and possesses “only the power that is authorized by Article III of the 4 Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. 5 Williamsport Area Sch. Dist., 475 U.S. 535, 541 (1986). Federal district courts lack 6 appellate jurisdiction over decisions of state courts and may not second guess state court 7 decisions. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003); see also Kougasian 8 v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (“Rooker-Feldman prohibits a federal 9 district court from exercising subject matter jurisdiction over a suit that is a de facto appeal 10 from a state court judgment.”). Where a plaintiff’s claims are “inextricably intertwined” 11 with a state court decision such that ruling in the plaintiff’s favor would render the state 12 court decision without effect, “the federal complaint must be dismissed for lack of subject 13 matter jurisdiction.” Bianchi, 334 F.3d at 898. 14 Plaintiff alleges that the withholding of his income pursuant to the state court’s order 15 deeming Plaintiff to be the father of the minor child was procedurally defective and 16 therefore in violation of the Fifth and Fourteenth Amendments to the Constitution. (FAC 17 ¶¶ 279–81.) Adjudication of this claim would require the Court to effectively review the 18 soundness of a state court ruling rendered before Plaintiff brought this action in federal 19 court, contrary to Rooker-Feldman. First, the state court’s order of paternity falls within 20 the purview of Rooker-Feldman because it was issued in 2017, (FAC ¶ 71), well before 21 Plaintiff commenced this federal court action in 2022. Second, granting Plaintiff the 22 requested relief would require the Court to render without effect the 2017 state court order 23 of paternity, on which the subsequent income withholding orders issued are based. Such 24 collateral review of state court decisions in federal court is precisely what the Rooker- 25 Feldman doctrine prohibits. 26 Further, the extrinsic fraud exception to the Rooker-Feldman doctrine does not apply 27 here. The exception applies when a plaintiff asserts that “an adverse party engaged in 28 ‘conduct which prevent[ed] [plaintiff] from presenting his claim in court.’” Reusser v. 1 Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008) (quoting Kougasian, 359 F.3d at 2 1140). Plaintiff argues in his Opposition that the extrinsic fraud exception applies here 3 because “Plaintiff does not . . . allege legal errors by the state courts; . . . he alleges illegal 4 conduct by the co-Defendants intentionally switching” the paternity test results to “create[] 5 an optical illusion on the Court itself.” (Pl.’s Mem of P. & A. re Applicability of Rooker- 6 Feldman Doctrine at 12, ECF No. 40-1.) This may be what Plaintiff alleges against co- 7 Defendants Labcorp and Maha; but Plaintiff has not alleged, and cannot plausibly allege, 8 anything to indicate that Defendant Bonta, against whom he brings this claim, participated 9 in a scheme to defraud Plaintiff. 10 Accordingly, the Court grants Defendant Bonta’s Motion to Dismiss Plaintiff’s 11 claim for lack of jurisdiction. Because there would be no way for Plaintiff to plead around 12 the fact that his claim against Defendant Bonta is an impermissible de facto appeal of state 13 court decisions in violation of the Rooker-Feldman doctrine, the Court dismisses the claim 14 without leave to amend. See Klamath-Lake Pharm. Ass’n, 701 F.2d at 1293 (“[F]utile 15 amendments should not be permitted.”).9 Because the Court concludes that it lacks 16 jurisdiction over this claim, it need not consider Defendant Bonta’s other arguments. 17 E. Section 1983 Claim Against Defendant Bubis 18 Lastly, Plaintiff brings a claim against Judge Gary Bubis, a state court judge of the 19 San Diego County Superior Court. Plaintiff alleges that Defendant Bubis injured Plaintiff 20 by causing significant, bi-weekly withholdings of his income to occur when he decreed 21 Plaintiff to be the father of the minor child based on a faulty paternity test. (FAC ¶¶ 283– 22 23 24 9 The Court’s dismissal of this claim for lack of subject matter jurisdiction is a dismissal without prejudice. 25 See Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (“Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims 26 in a competent court.”). However, a district court may dismiss a claim for lack of jurisdiction without leave to amend even though the dismissal is without prejudice. See Cooper v. Ramos, 704 F.3d 772, 777 27 (9th Cir. 2012) (“It is not uncommon for courts to frame a jurisdictional dismissal as being ‘without prejudice’ because the merits have not been considered. . . . [This] does not necessarily reflect that the 28 1 85.) The remedy Plaintiff seeks for this claim is injunctive relief in the form of an order 2 commanding Defendant Bubis to issue an order for a new paternity test or for termination 3 of the order authorizing withholding of Plaintiff’s income. (Id. ¶ 286.) Defendant Bubis 4 argues that Plaintiff’s claim is barred by judicial immunity. (Def. Bubis’s Mot. to Dismiss 5 at 4–6, ECF No. 8-1.) Alternatively, Defendant Bubis argues that Plaintiff’s claim against 6 him, like his claim against Defendant Bonta, is barred by the Rooker-Feldman doctrine as 7 an impermissible de facto appeal of a state court order. (Def. Bubis’s Mot. to Dismiss at 8 9–10, ECF No. 8-1.) The Court agrees. 9 1. Jurisdiction 10 Plaintiff effectively argues that Judge Bubis’s determination that Plaintiff is the 11 biological father of the minor child was error. (FAC ¶ 285.) As with the claim against 12 Defendant Bonta, granting Plaintiff the relief he seeks here would require this Court to 13 review and render without effect the 2017 state court order decreeing Plaintiff to be the 14 father of the minor child. For the reasons explained above, Plaintiff’s claim against 15 Defendant Bubis is therefore an impermissible de facto appeal of a “state-court judgment 16 rendered before” this “district court proceeding[] commenced,” Exxon Mobile Corp., 544 17 U.S. at 284, and is likewise barred by the Rooker-Feldman doctrine. 18 2. Judicial Immunity 19 Even if the Court had jurisdiction, the claim would be barred by judicial immunity. 20 Plaintiff correctly notes that that judicial immunity only bars suits for damages and does 21 not preclude a court from granting declaratory or injunctive relief. Pulliam v. Allen, 466 22 U.S. 522, 541–42 (1984). However, in 1996, Congress passed the Federal Courts 23 Improvement Act (FICA), which expanded the scope of judicial immunity such that “in 24 any action brought against a judicial officer for an act or omission taken in such officer’s 25 judicial capacity, injunctive relief shall not be granted unless a declaratory decree was 26 violated or declaratory relief was unavailable.” Moore v. Urquhart, 899 F.3d 1094, 1104 27 (9th Cir. 2018) (quoting 42 U.S.C. § 1983). Thus, FICA effectively “immunizes judicial 28 1 officers against suits for injunctive relief.” Roth v. King, 449 F.3d 1272, 1286 (D.C. Cir. 2 2006). 3 Judicial immunity bars Plaintiff’s claim for injunctive relief against Defendant 4 Bubis. Plaintiff does not allege that a declaratory decree was violated or unavailable. 5 “Declaratory relief against a judge for actions taken within his or her judicial capacity is 6 ordinarily available by appealing the judge’s order.” La Scalia v. Driscoll, No. 10-cv- 7 5007, 2012 WL 1041456, at *7 (E.D.N.Y. Mar. 26, 2012) (quoting LeDuc v. Tilley, No. 8 05-cv-157, 2005 WL 1475334, at *7 (D. Conn. June 22, 2005)). In fact, Plaintiff had the 9 ability to appeal and attempted to do so: he filed a notice of appeal, but his appeal was 10 dismissed due to his failure to file an opening brief on time. (See Def. Bubis’s Req. for 11 Judicial Notice in Supp. of Mot. to Dismiss, Ex. A, ECF No. 8-2.10) 12 Accordingly, the Court grants Defendant’s Motion to Dismiss Plaintiff’s claim 13 against Defendant Bubis for lack of jurisdiction, and in the alternative, holds that the claim 14 would be barred by judicial immunity. As with Plaintiff’s claim against Defendant Bonta, 15 the Court denies leave to amend because amendment would be futile: no amendment can 16 fix the fundamental defects that the Court lacks jurisdiction over Plaintiff’s de facto appeal 17 and that Judge Bubis is immune from suit for injunctive relief. The Court need not consider 18 Defendant Bubis’s other arguments.11 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25

26 10 The Court takes judicial notice of the California Court of Appeal order dismissing Plaintiff’s appeal. 27 In re K.S., No. D073380, (Cal. Ct. App. Apr. 3, 2018). 11 As with the claim against Defendant Bonta, Plaintiff’s claim against Defendant Bubis is dismissed 28 I IV. CONCLUSION AND ORDER 2 For the reasons explained above, the Court GRANTS Defendants Labcorp, Maha, 3 ||Bonta, and Bubis’s Motions to Dismiss. All of Plaintiff's claims against Defendants 4 Labcorp and Maha are DISMISSED WITH PREJUDICE. Plaintiffs’ claims against 5 || Defendants Bonta and Bubis are DISMISSED WITHOUT LEAVE TO AMEND. 7 8 Dated: June 8, 2023 9 Vine Yn. Hon. Dana M. Sabraw, Chief Judge 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28