1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CYRUS SANAI, Case No. 22-cv-01818-JST

8 Plaintiff,

ORDER DENYING MOTION FOR

9 v. INJUNCTION PENDING APPEAL

10 GEORGE CARDONA, et al., Re: ECF No. 81 Defendants. 11

12 13 Before the Court is Plaintiff Cyrus Sanai’s motion seeking the entry of a temporary 14 restraining order and issuance of an order to show cause why an injunction pending appeal should 15 not issue. ECF No. 81. The Court will deny the motion. 16 I. BACKGROUND 17 Sanai, a California lawyer, initiated this action for declaratory and injunctive relief against 18 Defendants George Cardona, the State Bar Chief Trial Counsel, and Leah Wilson, the State Bar 19 Executive Director, in March 2022, shortly after receiving a letter notifying him that the State Bar 20 would initiate disciplinary proceedings against him. ECF No. 1; ECF No. 28 ¶ 30; ECF No. 77 21 ¶ 30. Sanai is now the subject of a pending State Bar disciplinary proceeding; the Notice of 22 Disciplinary Charges (“NDC”), which initiates the proceeding, was filed on February 23, 2023. 23 See ECF No. 81-7 at 4; Rules of Procedure of the State Bar of California, Rule 5.351(A) (“A 24 proceeding begins when a notice of disciplinary charges is filed and served on the attorney.”). 25 Before the NDC was filed—but after he had received a copy of the draft NDC—Sanai filed 26 an application for a temporary restraining order and request for an order to show cause why a 27 preliminary injunction should not issue to prevent Defendants from “taking any action to advance 1 action based on the same or similar facts,” including by filing the NDC. ECF No. 52. On 2 February 22, 2023, the Court denied the application. ECF No. 58. 3 Sanai filed a notice of appeal of the Court’s February 22 order and a motion for leave to 4 file a motion for reconsideration. ECF Nos. 68, 69. The Court denied leave to file a motion for 5 reconsideration, concluding that the notice of appeal divested it of jurisdiction to reconsider its 6 February 22 order. ECF No. 75. 7 Sanai now requests that the Court issue a temporary restraining order and an order to show 8 cause why Defendants should not be enjoined from “taking any action to advance the disciplinary 9 matter or matters docketed as 17-0-0572 and 20-0-14956 or any other disciplinary action based on 10 the same or similar facts pending appeal of the Court’s denial of a motion for preliminary 11 injunction.” ECF No. 81 at 2. 12 II. LEGAL STANDARD 13 “The standard for evaluating an injunction pending appeal is similar to that employed by 14 district courts in deciding whether to grant a preliminary injunction.” Feldman v. Ariz. Sec’y of 15 State’s Off., 843 F.3d 366, 367 (9th Cir. 2016). “[P]laintiffs must make a ‘threshold showing’ of 16 four factors.” E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 975 (9th Cir. 2020) (quoting 17 Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam)). They must 18 “demonstrate[] that they are likely to succeed on the merits, that they are likely to suffer 19 irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, 20 and that an injunction is in the public interest.” S. Bay United Pentecostal Church v. Newsom, 959 21 F.3d 938, 939 (9th Cir. 2020). The Ninth Circuit also permits an alternative balancing test, under 22 which “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the 23 plaintiff can support issuance of an injunction, assuming the other two elements are also met.” 24 All. for the Wild Rockies v. Cottrell, 532 F.3d 1127, 1132 (9th Cir. 2011). 25 III. DISCUSSION 26 Reviewing the motion and the Court’s February 22 order, the Court concludes that Sanai is 27 unlikely to succeed on appeal because Younger abstention applies to this action. 1 the “strong federal policy against federal-court interference with pending state judicial 2 proceedings absent extraordinary circumstances.” Middlesex Cnty. Ethics Comm. v. Garden State 3 Bar Ass’n, 457 U.S. 423, 431 (1982). “Younger abstention may be raised sua sponte at any point 4 in the appellate process.” H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). 5 “Absent ‘extraordinary circumstances,’ abstention in favor of state judicial proceedings is required 6 if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the 7 plaintiff an adequate opportunity to litigate federal claims.” Hirsh v. Justs. of Sup. Ct. of State of 8 Cal., 67 F.3d 708, 712 (9th Cir. 1995). 9 Sanai’s attorney discipline proceeding is an ongoing state judicial proceeding. 10 “California’s attorney discipline proceedings are ‘judicial in character’ for purposes of Younger 11 abstention.” Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005) (quoting Hirsh, 67 F.3d 12 at 712). “Younger abstention is required . . . when state court proceedings are initiated ‘before any 13 proceedings of substance on the merits have taken place in federal court.’” Haw. Hous. Auth. v. 14 Midkiff, 467 U.S. 229, 238 (1984) (quoting Hicks v. Miranda, 422 U.S. 332, 349 (1975)). While 15 “[a] federal proceeding may be deemed to have passed beyond the ‘embryonic stage’ if the federal 16 court has conducted extensive hearings on a motion for a preliminary injunction or granted such a 17 motion,” the “denial of a temporary restraining order is not considered a proceeding of substance 18 on the merits.” Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987) (internal citations 19 omitted). Though this case was filed a year ago, no proceedings of substance on the merits have 20 yet taken place. Other than its February 22 order denying a temporary restraining order, the Court 21 has not issued any substantive orders in this case.1 Because the NDC was filed prior to 22 proceedings of substance on the merits in this case, the attorney discipline proceeding is an 23 ongoing state judicial proceeding under Younger. 24 Attorney discipline proceedings implicate important state interests. Canatella, 404 F.3d at 25 1110-11 (“[The Ninth Circuit] ha[s] clearly stated that ‘California’s attorney discipline 26

27 1 The Court has not even had the opportunity to evaluate the sufficiency of the pleadings; though 1 proceedings implicate important state interests.’” (quoting Hirsh, 67 F.3d at 712)); Middlesex, 457 2 U.S. at 434 (holding that the state “has an extremely important interest in maintaining and assuring 3 the professional conduct of the attorneys it licenses”). 4 The California attorney discipline process provides an adequate opportunity for Sanai to 5 litigate his federal constitutional claims. “Federal constitutional rights may be asserted in 6 [California attorney] discipline proceedings, and on judicial review of such proceedings.” 7 Canatella, 404 F.3d at 1111 (internal citation omitted). “Although judicial review is wholly 8 discretionary, its mere availability provides the requisite opportunity to litigate.” Id.; see also 9 Hirsh, 67 F.3d at 713 (“The fact that review is discretionary does not bar presentation of 10 appellants’ federal claims—appellants can raise the claims in a petition for review.”). Because 11 Sanai can raise his federal constitutional claims in the attorney discipline proceeding, Younger 12 abstention is appropriate. That his claims concern the constitutionality of the attorney discipline 13 proceedings themselves does not affect this outcome. See Hirsh, 67 F.3d at 713 (“Refusing to 14 abstain would require presuming that the California Supreme Court will not adequately safeguard 15 federal constitutional rights, a presumption the U.S. Supreme Court square rejected in Middlesex, 16 457 U.S. at 431.”); Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 619 (9th Cir. 2003) (“The 17 Supreme Court has ‘repeatedly rejected the argument that a constitutional attack on state 18 procedures themselves automatically vitiates the adequacy of those procedures for purposes of the 19 Younger-Huffman line of cases.’” (quoting Ohio C.R. Comm’n v. Dayton Christian Schs, Inc., 477 20 U.S. 619, 628 (1986))). 21 Even where Younger applies, federal courts may exercise jurisdiction where “state 22 proceedings are conducted in bad faith or to harass the litigant, or other extraordinary 23 circumstances exist.” Baffert, 332 F.3d at 621; see also Gibson v. Berryhill, 411 U.S. 564, 577-79 24 (1973) (rejecting abstention where state administrative board had a pecuniary interest in the 25 outcome of the proceedings); Younger, 401 U.S. at 53-54 (explaining that extraordinary 26 circumstances could exist where a statute is “flagrantly and patently violative of express 27 constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and 1 313 U.S. 387, 402 (1941))). Sanai alleges widespread corruption throughout the State Bar, 2 generally relating to Tom Girardi, and argues that various aspects of California’s attorney 3 discipline system are unconstitutional. These are not extraordinary circumstances that justify 4 rejecting abstention. See Canatella, 404 F.3d at 1112 (extraordinary circumstances exception did 5 not apply where plaintiff argued that “the California Supreme Court has an inherent conflict of 6 interest in considering constitutional challenges to state bar disciplinary proceedings” and “the 7 state bar statutes are patently unconstitutional”); Hirsh, 67 F.3d at 713 (extraordinary 8 circumstances exception did not apply where plaintiff argued that California Supreme Court 9 justices and Bar Court judges are biased and the attorney discipline system is unconstitutional); 10 Pavone v. Cardona, No. 3:21-cv-1743-BTM-BLM, 2022 WL 1060440, at *5 (S.D. Cal. Mar. 7, 11 2022) (extraordinary circumstances exception did not apply where plaintiff argued California State 12 Bar is corrupt, “primarily referencing the example of Thomas Girardi”); Kinney v. State Bar of 13 Cal., No. C-13-1396 MMC, 2013 WL 1331971, at *2 (N.D. Cal. Mar. 29, 2013) (extraordinary 14 circumstances exception did not apply where plaintiff argued his federal rights would be violated 15 during attorney discipline proceedings because, “if plaintiff is subjected to an adverse decision by 16 the State Bar in violation of his constitutional rights, ‘such claims may be raised in judicial review 17 of the Bar Court’s decision’” (quoting Hirsh, 67 F.3d at 712)). 18 Because Younger abstention applies, Sanai is unlikely to succeed on the merits of his 19 appeal. Where a party fails to “establish[] serious questions going to the merits . . ., [courts] need 20 not consider the remaining factors for” injunctive relief. Doe v. San Diego Unified Sch. Dist., 19 21 F.4th 1173, 1181 (9th Cir. 2021). Absent the necessary “threshold showing” of a likelihood of 22 success on the merits, this Court cannot grant an injunction pending appeal. E. Bay Sanctuary, 23 994 F.3d at 975 (quoting Leiva-Perez, 640 F.3d at 966). 24 / / / 25 / / / 26 / / / 27 / / / 1 CONCLUSION 2 The Court concludes that Sanai has failed to make a sufficient showing to justify the entry 3 || of a temporary restraining order or to demonstrate a basis for an order to show cause regarding the 4 || issuance of an injunction pending appeal. Sanai’s motion is therefore denied. 5 IT IS SO ORDERED. 6 Dated: June 8, 2023 . 7

JON S. TIGAR

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