NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL DELACRUZ, Sr., No. 17-17340
Plaintiff-Appellant, D.C. No. 5:14-cv-05336-EJD
v.
MEMORANDUM*
THE STATE BAR OF CALIFORNIA, a
California public entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted April 11, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Daniel Delacruz, Sr., appeals pro se from the district court’s judgment
dismissing his action alleging federal and state-law claims arising from the denial
of admission to practice law by the State Bar of California stemming from the
State Bar’s moral character determination requirements. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo. ASARCO, LLC v. Union Pac. R.R.
Co., 765 F.3d 999, 1004 (9th Cir. 2014) (dismissal for failure to state a claim under
Fed. R. Civ. P. 12(b)(6)); Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643
(9th Cir. 2009) (dismissal based on the Noerr–Pennington doctrine); Lukovsky v.
City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal
on statute of limitations grounds); Noel v. Hall, 341 F.3d 1148, 1154 (9th
Cir. 2003) (dismissal based on the Rooker–Feldman doctrine). We may affirm on
any ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59
(9th Cir. 2008). We affirm.
The district court properly dismissed Delacruz’s claims against all
defendants associated with the State Bar of California and the Judicial Council of
California because Delacruz’s claims constitute a forbidden “de facto appeal” of
prior state court judgments against Delacruz and are “inextricably intertwined”
with those judgments. See Noel, 341 F.3d at 1163-65 (discussing proper
application of the Rooker–Feldman doctrine); Craig v. State Bar of Cal., 141 F.3d
1353, 1354 n.1 (9th Cir. 1998) (noting that “the [Rooker–Feldman] doctrine is
especially appropriate when applied to a state’s regulation of its own bar”).
Dismissal of Delacruz’s request to modify a state court injunction was also
proper under the Rooker–Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 283-84 (2005) (noting that district courts do not have
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jurisdiction over cases in which plaintiffs complain of injuries caused by state
court judgments).
The district court properly dismissed Delacruz’s claims against defendants
associated with the City of Salinas and the City of Fresno as barred by the
applicable statutes of limitation. See Cal. Civ. Proc. Code § 335.1 (two-year
statute of limitations for personal injury claims); Lukovsky, 535 F.3d at 1048
(California’s statute of limitations for personal injury torts applies to § 1983 and
§ 1985 claims).
The district court properly dismissed all federal claims in Delacruz’s first
amended complaint because the conduct alleged was incidental to defendants’
petitioning activities and is therefore protected under the Noerr–Pennington
doctrine. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 934-35 (9th Cir. 2006)
(explaining the Noerr–Pennington doctrine). Because Delacruz failed to allege
sufficiently that defendants’ actions were objectively baseless and that they had an
improper motive, Delacruz’s federal claims do not fall within the narrow sham
litigation exception. See Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60-61 (1993) (discussing application of the sham
litigation exception to the Noerr–Pennington doctrine); Kottle v. Nw. Kidney Ctrs.,
146 F.3d 1056, 1063 (9th Cir. 1998) (a “heightened pleading standard” applies to
alleged intentional misrepresentations invoking the sham litigation exception, and
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the standard “would have no force if in order to satisfy it, a party could simply
recast disputed issues from the underlying litigation as misrepresentations by the
other party” (citation and internal quotation marks omitted)). To the extent that
Delacruz alleged non-petitioning activities, the conduct alleged relates to
Delacruz’s state law claims, over which the district court declined supplemental
jurisdiction, and Delacruz does not challenge the district court’s decision to decline
supplemental jurisdiction.
The district court did not abuse its discretion in denying Delacruz’s motion
for partial summary judgment as premature. Fed. R. Civ. P. 56(d); Burlington N.
Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323
F.3d 767, 773 (9th Cir. 2003) (standard of review).
The district court did not abuse its discretion by denying Delacruz’s motion
for reconsideration because Delacruz failed to establish any basis for relief. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (requirements for reconsideration under Fed. R. Civ. P. 60(b)).
We do not consider matters not specifically and distinctly raised in the
opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
We reject as unsupported by the record Delacruz’s contentions concerning
bias of the district judge.
Delacruz’s motion for an expedited injunction (Docket Entry No. 61) is
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denied.
AFFIRMED.
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