United States v. 2020-07-23 | 18-56527 | PAUL VIRIYAPANTHU V. STATE BAR OF CALIFORNIA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL VIRIYAPANTHU,

Plaintiff-Appellant,

v.

STATE BAR OF CALIFORNIA; STATE
OF CALIFORNIA; KENNETH E. BACON;
JOHN NELSON; RICHARD GREEN;
ORANGE COUNTY BAR ASSOCIATION,

Defendants-Appellees.

No. 18-56527

D.C. No.
8:17-cv-02266-JVS-JDE

MEMORANDUM
*

PAUL VIRIYAPANTHU,

Plaintiff-Appellant,

v.

STATE BAR OF CALIFORNIA; STATE
OF CALIFORNIA; ORANGE COUNTY
BAR ASSOCIATION; KENNETH E.
BACON; JOHN NELSON; RICHARD
GREEN,

Defendants-Appellees.

No. 19-55482

D.C. No.
8:17-cv-02266-JVS-JDE

Appeal from the United States District Court
for the Central District of California

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED

JUL 23 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
James V. Selna, District Judge, Presiding

Submitted July 21, 2020
**

Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

The Orange County Bar Association ruled against Paul Viriyapanthu in a fee
arbitration, requiring him to pay $4,313.00 to a former client. Viriyapanthu refused
to pay and so the State Bar of California suspended his license. He then initiated
this lawsuit in which he seeks $6,000,000.00 in compensatory damages for
discrimination in violation of the Americans with Disabilities Act and the Fourteenth
Amendment, discrimination in violation of 42 U.S.C. § 1981, and a conspiracy in
violation of the Sherman and Clayton Acts. He appeals from the dismissal of the
entire case. The facts are known to the parties and we do not repeat them here.
I
The district court properly dismissed Viriyapanthu’s damages claims made
under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. The State
of California, State Bar of California, and Kenneth Bacon (in his official capacity)
are each entitled to sovereign immunity. Hirsh v. Justices of Supreme Ct. of State of
Cal., 67 F.3d 708, 715 (9th Cir. 1995). Viriyapanthu’s theory of a Fourteenth

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

3
Amendment violation does not justify the abrogation of such immunity. The
conduct allegedly in violation of the Fourteenth Amendment (racial discrimination
and bias) is not made actionable by Title II, which only prohibits discrimination “by
reason of [a] disability.” 42 U.S.C. § 12132; see United States v. Georgia, 546 U.S.
151, 159 (2006) (recognizing Title II’s abrogation of state sovereign immunity when
the same conduct violates both Title II and the Fourteenth Amendment).
The district court appropriately exercised its discretion in denying
Viriyapanthu’s ex parte application for reconsideration of denial of leave to amend
to state a claim under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Such an
amendment would be futile because § 504 proscribes discrimination “solely by
reason of [a qualified individual’s] disability” and Viriyapanthu was alleging racial
discrimination and a failure to accommodate his financial position. Id.
II
The district court correctly dismissed Viriyapanthu’s § 1981 claim against the
Orange County Bar Association. The OCBA is entitled to immunity for decisional
acts taken within its jurisdiction. Sacks v. Dietrich, 663 F.3d 1065, 1069–70 (9th
Cir. 2011). It is therefore immune from liability for its fee award and for its alleged
non-enforcement of its own disclosure rules. Viriyapanthu’s assertion that the
OCBA discriminated against him in judicial nominations was not raised before the
district court and is therefore waived. See Bolker v. Comm’r, 760 F.2d 1039, 1042

4
(9th Cir. 1985).
III
The district court correctly dismissed Viriyapanthu’s claim that John Nelson
and Richard Green conspired in restraint of trade in violation of the Sherman Act,
15 U.S.C. § 1, and the Clayton Act, 15 U.S.C. § 15. The substance of his claim is
fraudulent conduct. However, Viriyapanthu’s “averments of fraud” failed to meet
Fed. R. Civ. P. 9(b)’s particularity requirement. See Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1103–06 (9th Cir. 2003). All that remains are conclusory accusations
of conspiracy, which fail to state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556–57 (2007).
The denial of leave to amend was an appropriate exercise of discretion
because it was done at Viriyapanthu’s request. See Rick-Mik Enters., Inc. v. Equilon
Enters. LLC, 532 F.3d 963, 977 (9th Cir. 2008).
IV
Because we affirm all of the district court’s rulings, Viriyapanthu’s request
for reassignment to a different district judge upon remand is moot.
1

1
Viriyapanthu’s Amended Motion to Take Judicial Notice, ECF No. 75 (Dkt.
No. 18-56827), ECF No. 34 (Dkt. No. 19-55482), is GRANTED with respect to
documents 2, 5, and 7 and DENIED with respect to documents 1, 3, 4, and 6.
Viriyapanthu’s Supplemental Motion to Take Judicial Notice, ECF No. 120 (Dkt.
No. 18-56827), ECF No. 79 (Dkt. No. 19-55482), is GRANTED with respect to
documents 9 and 12 and DENIED with respect to documents 8, 10, and 11. See Fed.
R. Evid. 201(b), 902(5). Viriyapanthu’s Motion to Take Judicial Notice, ECF No.

5
AFFIRMED.

57 (Dkt. No. 18-56827), ECF No. 15 (Dkt. No. 19-55482), is DENIED as moot.
Viriyapanthu’s Motion to Take Judicial Notice, ECF No. 62 (Dkt. No. 18-56827),
ECF No. 21 (Dkt. No. 19-55482), is DENIED as moot.
The State Bar’s Motion to Take Judicial Notice, ECF No. 100 (Dkt. No. 18-
56827), ECF No. 59 (Dkt. No. 19-55482), is GRANTED.