Vela v. The State Bar of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PASTOR ISABEL VELA, Case No. 1:23-cv-01638-JLT-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION 13 v. (Doc. 9) 14 STATE BAR OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff Pastor Isabel Vela (“Plaintiff”), proceeding pro se and in forma pauperis, initiated 18 this civil rights action on November 22, 2023. (Doc. 1.) On December 27, 2023, the Court 19 screened Plaintiff’s complaint and granted her leave to amend. (Doc. 7.) Plaintiff’s first 20 amended complaint, filed on January 10, 2023, is currently before the Court for screening. (Doc. 21 9.) 22 I. Screening Requirement and Standard 23 The Court screens complaints brought by persons proceeding in pro se and in forma 24 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 25 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 26 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 27 U.S.C. § 1915(e)(2)(B)(ii). 28 A complaint must contain “a short and plain statement of the claim showing that the 1 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 2 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 5 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 6 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 7 To survive screening, Plaintiff’s claims must be facially plausible, which requires 8 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 9 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 10 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 11 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 12 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 13 II. Summary of Plaintiff’s Allegations 14 Plaintiff names the State Bar of California as the defendant in this action. (Doc. 9 at 2, 9.) 15 Plaintiff also appears to assert claims against Emerly Cruz, an investigator for the State Bar. (Id. 16 at 7.) Plaintiff identifies that the First Amendment, Ninth Amendment, Fourteenth Amendment, 17 and the Free Exercise Clause of the United States Constitution are issue in this litigation. She 18 also cites 22 U.S.C. § 6401. (Id. at 4.) 19 In relevant part, Plaintiff alleges as follows:

20 In August 2023, [Plaintiff] received communication from the defendants, with Agent Emerly Cruz acting as the investigator for the state of California. Mrs. 21 Cruz sought information from [Plaintiff] regarding allegations of practicing law without a license intending to either accuse or dismiss the charges. [Plaintiff] 22 declined to provide information, invoking the separation of Church and State, asserting the right to safeguard personal beliefs from state interference. 23 Additionally, [Plaintiff] emphasized that information shared between a Pastor and their congregants is considered private and confidential, and any Church-related 24 matters are protected from state intrusion. [¶] Agent Emerly Cruz expressed displeasure at [Plaintiff’s] exercise of this right, subsequently serving a notice on 25 [Plaintiff] and a third party to cease practicing law. 26 (Doc. 9 at pp. 7-8.) 27 Plaintiff further contends that the “third party,” motivated by the notice, engaged in 28 extortion against Plaintiff, demanding $4,000.00. The “third party” also contacted the Tulare 1 County District Attorney multiple times to instigate an investigation. Plaintiff asserts that she has 2 “endured harassment from the third party, experiencing duress and defamation due to 3 unwarranted requests for information.” (Id. at p. 8.) 4 Plaintiff contends that under the California Tort Claims Act, defendant is subject to being 5 held accountable. Plaintiff claims that this Court has appropriate jurisdiction because the 6 defendant is a governmental state agent. Plaintiff further alleges that the actions of defendant’s 7 agent not only infringed upon the rights of the Church and Pastor, but also encouraged others to 8 violate those rights. 9 As relief, Plaintiff seeks an injunction to prevent further investigations and interference 10 with Church affairs and pastoral duties. She also seeks damages. (Id. at p. 6.) 11 III. Discussion 12 A. Eleventh Amendment Immunity 13 Plaintiff brings this action for monetary damages and injunctive relief against the State 14 Bar of California. However, the State Bar of California enjoys Eleventh Amendment protection 15 and is entitled to immunity from suit in federal court. Kohn v. State Bar of California, 87 F.4th 16 1021 (9th Cir. 2023) (affirming precedent that California State Bar is entitled to immunity from 17 suit in federal court); Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 18 1995) (“The Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state 19 agencies such as California’s Bar Association and Bar Court.”). 20 Plaintiff also appears to suggest that the State Bar may be sued under the California Tort 21 Claims Act, but “[t]he classification of the State Bar as a public agency under the California Tort 22 Claims Act does not affect the State Bar’s status for purposes of sovereign immunity.” Allegrino 23 v. State Bar of Cal., Nos. C06–05490 MJJ, C07–00301, 2007 WL 1450312, at *4 (N.D. Cal. 24 May 14, 2007). “While California has consented to be sued in its own courts pursuant to the 25 California Tort Claims Act, such consent does not constitute consent to suit in federal court.” See 26 Manson v. State of California, No. 2:21-cv03054-PSG (AFM), 2022 WL 16859597, at *4 (C.D. 27 Cal. Feb. 3, 2022) (citing BV Eng’g v. Univ. of Cal., 858 F.2d 1394, 1396 (9th Cir. 1988)). 28 Plaintiff’s claims against the California State Bar are barred by the Eleventh Amendment. 1 The Court will therefore recommend that all claims against the State Bar of California be 2 dismissed with prejudice. 3 2. Individual State Bar Employee – Emerly Cruz 4 a. Official Capacity 5 To the extent Plaintiff is attempting to bring suit against Emerly Cruz in her official 6 capacity as an investigator for the State Bar, the Eleventh Amendment also “bars a federal action 7 for damages, or other retroactive relief, against a state official acting in his or her official 8 capacity.” Diviacchi v. State Bar of California, No. 23-cv-02417-LB, 2023 WL 5763054, at *3 9 (N.D. Cal. Sept. 6, 2023) (quoting Khanna v. State of Cal., 505 F. Supp. 2d 633, 6455 (N.D. Cal. 10 2007)); Allegrino, 2007 WL 1450312, at *4 (The Eleventh Amendment “bars a federal action for 11 damages, or other retroactive relief, against a state official acting in his or her official 12 capacity.”). Accordingly, Emerly Cruz, the individual State Bar defendant, has Eleventh 13 Amendment immunity from suit in her official capacity for monetary damages and other 14 retroactive relief. 15 The Court recognizes, however, that the Eleventh Amendment does not bar a claim 16 against a state official in his or her official capacity for prospective relief to end a continuing 17 violation of federal law. Diaviacchi, 2023 WL 5763053, at *3; Allegrino, 2007 WL 1450312, at 18 *4. Plaintiff here appears to seek prospective relief to enjoin further investigations related to 19 allegations of the unauthorized practice of law. 20 b. Individual Capacity 21 The Eleventh Amendment also would not implicate claims against the individual State 22 Bar defendant in her individual capacity. Allegrino, 2007 WL 1450312, at *5. 23 B. First Amendment 24 Plaintiff generally claims the First Amendment is at issue in this case. (Doc. 9 at 4.) The 25 First Amendment to the United States Constitution provides: “Congress shall make no law 26 respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the 27 freedom of speech, or of the press; or the right of the people peaceably to assemble, and to 28 petition the Government for a redress of grievances.” U.S. Const. amend. I. A number of rights 1 are encompassed within the First Amendment. 2 With the exception of the Free Exercise Clause, which Plaintiff separately references, 3 Plaintiff fails to identify which other First Amendment rights she believes were violated. The 4 Court will not speculate as to Plaintiff’s causes of action. Nevertheless, Plaintiff appears to 5 imply that the State Bar investigator, Emerly Cruz, interfered with Plaintiff’s First Amendment 6 rights by expressing displeasure at the exercise of those rights and serving notice to cease 7 practicing law. Plaintiff’s allegations appear to implicate the Establishment Clause of the First 8 Amendment, which provides that “Congress shall make no law respecting an establishment of 9 religion.” U.S. Const. amend. I. The Establishment Clause “applies not only to official 10 condonement of a particular religion or religious belief, but also to official disapproval or 11 hostility towards religion.” Am. Family Ass’n, Inc. v. City & County of San Francisco, 277 F.3d 12 1114, 1120-21 (9th Cir. 2002). In Lemon v. Kurtzman, 403 U.S. 602, (1971), “the Supreme Court 13 established the now widely known ‘Lemon test’ for analyzing government conduct under the 14 Establishment Clause of the First Amendment. To survive the test, the government conduct at 15 issue must (1) have a secular purpose, (2) not have as its principal or primary effect advancing or 16 inhibiting religion and (3) not foster an excessive government entanglement with religion.” Id. at 17 1121. 18 Plaintiff alleges only that the State Bar’s investigator, Emerly Cruz, attempted to ask 19 Plaintiff questions regarding allegations of practicing law without a license and subsequently 20 issued a notice to cease the unauthorized practice of law. It is apparent that the questions and 21 notice were done for a secular purpose, i.e., to regulate the practice of law, and do not advance or 22 inhibit religion, nor do they foster any entanglement between government and religion. 23 Plaintiff’s facts, as alleged, do not support an Establishment Clause claim. 24 C. First Amendment - Free Exercise Clause 25 Plaintiff asserts a claim for violation of the Free Exercise Clause of the First Amendment. 26 As best as can be inferred from the allegations in her amended complaint, Plaintiff appears to 27 assert that her right to the free exercise of her religion was violated by the attempt to prevent her 28 from engaging in the unauthorized practice of law when advising her congregants. 1 “In very general terms, there may be a Free Exercise violation if a government action 2 ‘substantially burdens’ a religious practice.” Bridgeman v. San Joaquin Child Protective Servs., 3 No. 2:19-cv-02108-JAM AC (PS), 2019 WL 5682824, at *3 (E.D. Cal. Nov. 1, 2019) (citing Am. 4 Family Ass’n, Inc., 277 F.3d at 1124). The alleged government actions here, questioning 5 Plaintiff regarding allegations of practicing law without a license and a subsequent notice to 6 cease practicing law without a license, do not burden the exercise of religion. The Free Exercise 7 Clause is not violated by limiting legal representation of others to licensed attorneys. See, e.g., 8 Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (concluding Free Exercise 9 Clause not violated by limiting legal representation of others to licensed attorneys authorized to 10 practice law before the court). The United States Supreme Court has long recognized that states 11 have broad authority to regulate against the unauthorized practice of law. See Sperry v. Florida 12 ex rel. Florida Bar, 373 U.S. 379 (1963). 13 D. Ninth Amendment 14 To the extent Plaintiff is attempting to state a claim directly under the Ninth Amendment, 15 her amended complaint fails to state a claim. The Ninth Amendment provides that “[t]he 16 enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage 17 others retained by the people.” U.S. Const. amend. IX. Such amendment “has never been 18 recognized as independently security any constitution right, for purposes of pursuing a civil 19 rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); accord Jenkins v. 20 C.I.R., 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of 21 individual rights . . . .”) Accordingly, Plaintiff cannot state a claim under the Ninth Amendment. 22 E. Fourteenth Amendment 23 Plaintiff generally cites the Fourteenth Amendment. The nature of this claim is unclear. 24 The Fourteenth Amendment provides that no State shall “make or enforce any law which shall 25 abridge the privileges or immunities of citizens of the United States; nor shall any State deprive 26 any person of life, liberty or property, without due process of law; nor deny to any person within 27 its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 28 /// 1 1. Due Process 2 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 3 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 4 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due 5 process clause of the Fourteenth Amendment confers both substantive and procedural 6 protections. Albright v. Oliver, 510 U.S. 266, 272 (1994). 7 “The protections of substantive due process have for the most part been accorded to 8 matters relating to marriage, family, procreation, and the right to bodily integrity.” Albright, 510 9 U.S. at 272. Substantive due process “prevents the government from engaging in conduct that 10 ‘shocks the conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty.’ ” 11 United States v. Salerno, 481 U.S. 739, 746 (1987) (internal citations omitted). “[O]nly the most 12 egregious official conduct can be said to be ‘arbitrary in the constitutional sense,’” County of 13 Sacramento v. Lewis, 523 U.S. 833, 846 (quoting Collins v. Harker Heights, 503 U.S. 115, 129 14 (1992)), and thus government action must be such that it “shocks the conscience” in order to be 15 actionable as a substantive due process claim, id. at 846-47. 16 Plaintiff’s first amended complaint alleges an investigation into allegations of practicing 17 law without a license and a notice to cease the unauthorized practice of law. The conduct alleged 18 is not sufficiently egregious to be arbitrary in the constitutional sense. There is nothing in 19 Plaintiff’s allegations that “shocks the conscience.” Plaintiff’s first amended complaint therefore 20 fails to state a substantive due process claim. 21 To state a claim for a violation of procedural due process, a plaintiff must allege (1) a 22 deprivation of a constitutionally protected liberty or property interest, and (2) a denial of 23 adequate procedural protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). Here, 24 the claim fails because the amended complaint does not allege any due process Plaintiff did not 25 receive. 26 2. Equal Protection 27 “The Equal Protection Clause requires the State to treat all similarly situated people 28 equally.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) 1 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). There are two 2 different ways to state an equal protection claim. First, a plaintiff may state an equal protection 3 claim by alleging facts plausibly showing that “the defendants acted with an intent or purpose to 4 discriminate against [her] based upon membership in a protected class.” Id. (quoting Thornton v. 5 City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005)). Alternatively, a plaintiff may state an 6 equal protection claim under a “class of one” theory by alleging facts that she “has been 7 intentionally treated differently from others similarly situated and that there is no rational basis 8 for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 9 Here, Plaintiff does not state sufficient facts to establish an equal protection claim under 10 either theory. First, Plaintiff’s amended complaint does not allege facts plausibly showing 11 discrimination based on a protected class, such as a particular religion. Plaintiff’s amended 12 complaint merely alleges an investigation into allegations of practicing law without a license and 13 a resulting notice to cease such activities. The amended complaint’s vague implication of 14 religious discrimination is insufficient where there are no facts showing that a defendant was 15 motivated by religious considerations. Second, the amended complaint does not include factual 16 allegations suggesting that Plaintiff “has been intentionally treated differently from others 17 similarly situated and that there is no rational basis for the difference in treatment.” Indeed, 18 Plaintiff’s own allegations demonstrate that she was treated the same as a “third party,” who also 19 was issued a notice to cease practicing law. 20 F. 22 U.S.C. § 6401 21 Plaintiff cites the International Religious Freedom Act, 22 U.S.C. § 6401. However, the 22 International Religious Freedom Act does not provide a private cause of action in a civil case. 23 See, e.g., Strege v. Dep’t of Motor Vehicles, No. 15-1907(DSD/HB), 2015 WL 1954452, *2 n.2 24 (D. Minn. Apr. 29, 2015); Bey v. Ohio, No. 1:11 CV 1213, 2011 WL 5024188, *2 (N.D. Ohio 25 Oct. 19, 2011). 26 G. State Law Claims 27 Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original 28 jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims that are 1 so related to claims in the action within such original jurisdiction that they form part of the same 2 case or controversy under Article III of the United States Constitution,” except as provided in 3 subsections (b) and (c). The Supreme Court has stated that “if the federal claims are dismissed 4 before trial, . . . the state claims should be dismissed as well.” United Mine Workers of Am. v. 5 Gibbs, 383 U.S. 715, 726 (1966). Although the Court may exercise supplemental jurisdiction 6 over state law claims, Plaintiff must first have a cognizable claim for relief under federal law. 28 7 U.S.C. § 1367. Plaintiff has not stated a cognizable claim for relief under federal law. 8 H. Leave to Amend 9 “A pro se litigant must be given leave to amend his or her complaint, and some notice of 10 its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be 11 cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (1995). Because it does not 12 appear possible that the deficiencies identified herein can be cured by amending the complaint, 13 leave to amend is not warranted. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en 14 banc). 15 IV. Conclusion and Recommendation 16 For the reasons stated, IT IS HEREBY RECOMMENDED as follows: 17 1. Plaintiff’s claims against the State Bar of California be dismissed with prejudice; 18 2. To the extent the individual State Bar defendant is not entitled to immunity or the 19 requested relief is not barred, Plaintiff’s federal claims against her be dismissed with 20 prejudice for failure to state a claim upon which relief may be granted; and 21 3. The Court decline to exercise supplemental jurisdiction over any purported state law 22 claims against the individual State Bar defendant. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 26 file written objections with the Court. The document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 28 objections within the specified time may result in the waiver of the “right to challenge the 1 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4

5 Dated: May 1, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28