MELISSA KAY COOK, Individually v. CYNTHIA ANNE HARDING, M.P.H., Director of the Los Angeles County Department of…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ELISSA KAY C OOK, Individually;
M ELISSA KAY C OOK, as Guardian Ad
Litem of Baby A, Baby B, and Baby
C,
Plaintiffs-Appellants,
v.
C YNTHIA ANNE HARDING, M.P.H.,
Director of the Los Angeles County
Department of Public Health, in her
official capacity; J EFFERY D.
GUNZENHAUSER , M.D., M.H.P.,
Health Officer and Medical Director
for the Los Angeles County
Department of Public Health; DEAN
C. LOGAN , Registrar-
Recorder/County Clerk for Los
Angeles County in his official
capacity; EDMUND G. BROWN, J R .,
Governor of the State of California;
KAREN S MITH, M.D., M.P.H.,
Director and State Public Health
Officer for the California
Department of Public Health; C. M.,
an adult male believed to be the
genetic father of Baby A, Baby B
and Baby C; KAISER F OUNDATION
HOSPITAL; P ANORAMA C ITY
No. 16-55968
D.C. No.
2:16-cv-00742-
ODW-AFM
OPINION

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2 C OOK V . HARDING
M EDICAL C ENTER ; P AYMAN
R OSHAN , Senior Vice President and
Patient Administrator of Panorama
City Medical Center; XAVIER
BECERRA,* Attorney General,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted November 9, 2017
Pasadena, California
Filed January 12, 2018
Before: Stephen Reinhardt and Kim McLane Wardlaw,
Circuit Judges, and Wiley Y. Daniel,** District Judge.
Opinion by Judge Reinhardt
* Xavier Becerra is substituted for his predecessor, Kamala Harris.
Fed. R. App. P. 43(c)(2).
** The Honorable Wiley Y. Daniel, United States District Judge for
the U.S. District Court for Colorado, sitting by designation.

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C OOK V . HARDING 3
SUMMARY***
Civil Rights
The panel affirmed, on issue preclusion grounds, the
district court’s dismissal of an action challenging the
constitutionality of California Family Code Section 7962,
which codified California cases that found gestational
surrogacy contracts enforceable.
The panel first held that the district court was wrong to
abstain from hearing this case under Younger v. Harris, 401
U.S. 37 (1971). The panel held that this case did not fall
within the two limited categories of civil cases that define
Younger’s scope, as set forth in Sprint Commc’ns., Inc. v.
Jacobs, 134 S. Ct. 584, 593-94 (2013). Thus, the panel
determined that plaintiff’s then pending state court
constitutional challenge to Section 7962 was neither a civil
enforcement proceeding, nor was it within the category of
cases that involve the State’s interest in enforcing the orders
and judgments of its courts.
The panel affirmed the district court on the basis that the
subsequent state court decision on the merits of plaintiff’s
constitutional claims precluded further litigation of the
issues in federal court. The panel stated that it was required
to give the same preclusive effect to a California Court of
Appeal’s judgment involving plaintiff’s claims as California
courts would. The panel determined that given the Court of
Appeal’s thorough and well-reasoned opinion, which
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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4 C OOK V . HARDING
addressed each of plaintiff’s constitutional challenges, there
was no question that the constitutional claims were
necessarily decided in the state court proceeding.
COUNSEL
Harold J. Cassidy (argued), Joseph Zakhary, and Thomas J.
Viggiano, The Cassidy Law Firm, Shrewsbury, New Jersey;
Michael W. Caspino and Robert M. Dato, Buchalter Nemer,
Irvine, California; for Plaintiffs-Appellants.
Daniel P. Barer (argued), Pollak Vida & Fisher, Los
Angeles, California, for Defendants-Appellees Cynthia
Anne Harding, M.P.H.; Jeffery D. Gunzenhauser, M.D.,
M.H.P.; and Dean C. Logan.
Robert R. Walmsley (argued) and Marlea F. Jarrette, Jarette
& Walmsley LLP, Los Olivos, California, for Defendant-
Appellee C.M.
Chara L. Crane (argued), Deputy Attorney General; Jennifer
M. Kim, Supervising Deputy Attorney General; Julie Weng-
Gutierrez, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
Los Angeles, California; for Defendants-Appellees Edmund
G. Brown, Jr. and Karen Smith, M.D., M.P.H.
Dean Masserman, Vorzimer/Masserman – Fertility &
Family Law Center, Woodland Hills, California, for
Defendants-Appellees Kaiser Foundation Hospital,
Panorama City Medical Center, and Payman Roshan.

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C OOK V . HARDING 5
OPINION
REINHARDT, Circuit Judge:
The California legislature enacted California Family
Code Section 7962 (“Section 7962”) to codify California
cases that found gestational surrogacy contracts
enforceable.1 Among other matters, Section 7962 authorizes
the judicial determination of legal parentage in accordance
with the terms of a gestational surrogacy agreement prior to
the birth of any child so conceived.
Melissa Cook entered into a gestational surrogacy
agreement with C.M. pursuant to Section 7962. By the terms
of the 75-page contract, titled “In Vitro Fertilization
Surrogacy Agreement” (“Agreement”), Cook agreed to the
implantation of embryos created with ova from an
anonymous woman and sperm from C.M., to carry any
pregnancy to term, and to surrender upon birth the child or
children to C.M. Under the contract, Cook’s parental rights
would be terminated by court order prior to the birth of any
child or children in accordance with Section 7962, and C.M.
would be declared the only legal parent. Following the
embryo transfer, Cook became pregnant, and eventually
learned that she was carrying three fetuses. Cook’s
relationship with C.M. soured when they disagreed during
her pregnancy about selective reduction of the fetuses.
Triplets were born on February 22, 2016.
Prior to the birth, Cook began her legal quest to
challenge the constitutionality of Section 7962. On January
1 See Cal. Assem. Com. on Judiciary, Analysis of Assem. Bill No.
1217 (2011–2012 Reg. Sess.) as amended April 26, 2011, at pp. 1–3;
Cal. Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1217 (2011–
2012 Reg. Sess.) as amended June 11, 2012, at p. 4.

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4, 2016, she filed a complaint in the Los Angeles County
Superior Court alleging that Section 7962 was
unconstitutional and seeking a parentage declaration. The
court struck this complaint because it was filed in the wrong
court and without proper service. On January 6, 2016, C.M.
filed a petition in the Children’s Court within the Los
Angeles County Superior Court to enforce the contract and
be declared the sole legal parent of the children. On February
1, 2016, Cook filed a counterclaim in response to C.M.’s
petition, again challenging the validity of the Agreement and
the constitutionality of Section 7962. The following day, she
filed a nearly identical complaint in federal district court
against C.M. as well as state and county personnel, raising
her constitutional claims under 42 U.S.C § 1983. The district
court abstained pursuant to Younger v. Harris, 401 U.S. 37
(1971), and dismissed the case. Cook v. Harding, 190 F.
Supp. 3d 921, 938 (C.D. Cal. 2016). Cook appealed.
DISCUSSION
“We review a district court’s decision to abstain under
Younger de novo and do not defer to the view of the district
judge.” Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d
716, 727 (9th Cir. 2017). We conduct the Younger analysis
“in light of the facts and circumstances existing at the time
the federal action was filed.” Potrero Hills Landfill, Inc. v.
Cty. of Solano, 657 F.3d 876, 881 n.6 (9th Cir. 2011).
“We may affirm the district court on any ground[]
supported by the record.” Schechner v. KPIX-TV, 686 F.3d
1018, 1022–23 (9th Cir. 2012).
I. Younger Abstention
“Younger ‘abstention remains an extraordinary and
narrow exception to the general rule that federal courts “have

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C OOK V . HARDING 7
no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.”’” Nationwide,
873 F.3d at 727 (quoting Potrero Hills, 657 F.3d at 882
(quoting New Orleans Pub. Serv., Inc. v. Council of City of
New Orleans, 491 U.S. 350, 358 (1989) (“NOPSI”))).
Abstention in civil cases “is appropriate only when the state
proceedings: (1) are ongoing, (2) are quasi-criminal
enforcement actions or involve a state’s interest in enforcing
the orders and judgments of its courts, (3) implicate an
important state interest, and (4) allow litigants to raise
federal challenges.” ReadyLink Healthcare, Inc. v. State
Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) (citing
Sprint Commc’ns., Inc. v. Jacobs, 134 S. Ct. 584, 593–94
(2013)).
At issue is the second prong of the ReadyLink test:
whether this case falls within either of the two types of civil
cases—quasi-criminal enforcement actions or cases
involving a state’s interest in enforcing the orders and
judgments of its courts—in which Younger abstention is
appropriate. The district court ignored Supreme Court
precedent and our circuit’s controlling law when it abstained
without conducting this required analysis. See Cook, 190 F.
Supp. 3d at 934–38. Instead, it relied on previous
applications of Younger abstention to family law cases and
the state’s unique interest and sole jurisdiction in the law of
domestic relations. See id. We write to clarify that Younger
abstention is improper in civil cases outside of the two
limited categories referred to above, regardless of the subject
matter or the importance of the state interest.
We explained in ReadyLink that the extension of
Younger began shortly after that case was decided. See
754 F.3d at 758. This steady expansion included the
application of Younger abstention to family law cases.

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Moore v. Sims, 442 U.S. 415, 435 (1979) (abstaining from
constitutional challenge to state custody removal
proceedings); see also, e.g., H.C. ex rel. Gordon v. Koppel,
203 F.3d 610, 613–14 (9th Cir. 2000) (abstaining where
plaintiff sought injunction to vacate child custody
determinations). As the class of cases in which federal courts
abstained pursuant to Younger continued to grow, at least
some eminent jurists objected that this thwarted the federal
courts’ “virtually unflagging obligation,” Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817
(1976), to exercise the jurisdiction vested in them by
Congress. See, e.g., Juidice v. Vail, 430 U.S. 327, 343–44
(1977) (Brennan, J., dissenting) (“It stands the § 1983
remedy on its head to deny the § 1983 plaintiff access to the
federal forum . . . . Rather than furthering principles of
comity and our federalism, forced federal abdication in this
context undercuts . . . the protection and vindication of
important and overriding federal civil rights . . . .”).
After more than forty years of unchecked doctrinal
expansion, the Supreme Court changed course and made
clear that Younger abstention was appropriate only in the
two “exceptional” categories of civil cases it had previously
identified: (1) “civil enforcement proceedings”; and
(2) “civil proceedings involving certain orders . . . uniquely
in furtherance of the state courts’ ability to perform their
judicial functions.” Sprint, 134 S. Ct. at 591 (quoting NOPSI,
491 U.S. at 368). Our circuit soon adapted our law to comply
with this holding. We explained that Sprint resolved any
“interpretive dilemmas” about the types of proceedings to
which Younger applies when it “squarely” held that
abstention in civil cases is limited to these two categories.
See ReadyLink, 754 F.3d at 759. Other circuits have done
the same. See, e.g., Doe v. Univ. of Ky., 860 F.3d 365, 369
(6th Cir. 2017); Google, Inc. v. Hood, 822 F.3d 212, 222 (5th

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C OOK V . HARDING 9
Cir. 2016); Banks v. Slay, 789 F.3d 919, 923 (8th Cir. 2015);
Sirva Relocation, LLC v. Richie, 794 F.3d 185, 189, 191–93
(1st Cir. 2015); Falco v. Justices of the Matrimonial Parts of
Sup. Ct. of Suffolk Cty., 805 F.3d 425, 427–28 (2d Cir. 2015);
Mulholand v. Marion Cty. Election Bd., 746 F.3d 811, 815–
16 (7th Cir. 2014); ACRA Turf Club, LLC v. Zanzuccki,
748 F.3d 127, 129, 132–38 (3d Cir. 2014).
We emphasize that federal courts cannot ignore Sprint’s
strict limitations on Younger abstention simply because
states have an undeniable interest in family law. See Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004);
see also Moore, 442 U.S. at 435. Sprint gave us cause to once
more “believe that wherever the Federal courts sit, human
rights under the Federal Constitution are always a proper
subject for adjudication, and that we have not the right to
decline the exercise of that jurisdiction simply because the
rights asserted may be adjudicated in some other forum.”
Zwickler v. Koota, 389 U.S. 241, 248 (1967) (citation
omitted). Indeed, the law of domestic relations often has
constitutional dimensions properly resolved by federal
courts. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584
(2015); Loving v. Virginia, 388 U.S. 1 (1967). We must
enforce the mandated constraints on abstention so that such
constitutional rights may be vindicated.
This case does not fall within either category of civil
cases which Sprint held warrant Younger abstention. 134 S.
Ct. at 593–94; ReadyLink, 754 F.3d at 759. First, Cook’s
state court constitutional challenge to Section 7962 is not a
civil enforcement proceeding. In Sprint, the Court explained
that civil enforcement proceedings are generally “akin to a
criminal prosecution” in “important respects”:
Such enforcement actions are
characteristically initiated to sanction the

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10 C OOK V . HARDING
federal plaintiff, i.e., the party challenging
the state action, for some wrongful act. In
cases of this genre, a state actor is routinely a
party to the state proceeding and often
initiates the action. Investigations are
commonly involved, often culminating in the
filing of a formal complaint or charges.
134 S. Ct. at 592 (internal citations omitted). Sprint cited
Moore as an example of a quasi-criminal enforcement
action. Id. In Moore, parents challenged the constitutionality
of parts of the Texas Family Code that permitted removal of
their children following allegations of child abuse. See
442 U.S. at 418–20. Prior to the parents’ action, the state had
initiated proceedings alleging child abuse, leading to an
investigation and subsequent custody hearings. See id.
Although this case, like Moore, involves a constitutional
challenge to a state family law scheme, none of the
characteristics of an enforcement proceeding exemplified in
Moore are present here.
Defendants nonetheless argue that the state court
proceedings are “a civil enforcement proceeding brought by
C.M. to enforce the terms of a properly executed assisted
reproduction agreement.” We have squarely foreclosed this
broad interpretation of an enforcement proceeding: “If the
mere ‘initiation’ of a judicial . . . proceeding were an act of
civil enforcement, Younger would extend to every case in
which a state judicial officer resolves a dispute between two
private parties.” ReadyLink, 754 F.3d at 760. The
interpretation of a provision of the California Family Code
also does not transform this into a civil enforcement
proceeding because “litigants request that a court . . .
interpret a statute, a regulation, or the common law” in most
every case. Id.

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C OOK V . HARDING 11
Second, Cook’s state action is not within the category of
cases that involve “the State’s interest in enforcing the orders
and judgments of its courts.” ReadyLink, 754 F.3d at 759
(citations omitted). Defendants contend that the case falls
within this category because challenges to parentage
determinations could impede the state courts’ ability to make
other decisions based on that parental status, such as custody
and child support. This is an argument regarding the state
courts’ power to apply its laws in subsequent proceedings
and the state’s interest in its interrelated family laws. It does
not relate to the state courts’ ability to enforce compliance
with judgments already made. See Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 13–14 (1987) (abstaining from challenge to
state court’s procedures regarding bonds on appeal after
entry of a monetary judgment); Juidice, 430 U.S. at 336
(abstaining from challenge to state court’s civil contempt
process).
Following Sprint, we have made clear that the category
of cases involving the state’s interest in enforcing its courts’
orders and judgments does not include cases involving “a
‘single state court judgment’ interpreting [a private
agreement] and state law” because such cases do not
implicate “the process by which a state ‘compel[s]
compliance with the judgments of its courts.’” ReadyLink,
754 F.3d at 759 (quoting Potrero Hills, 657 F.3d at 886).
Cook does not question the process by which California
courts compel compliance with parentage determinations
under state law. Rather, she alleges that Section 7962 is
unconstitutional. Cook accordingly challenges the
legislative prescriptions of Section 7962. As the Court held
even before Sprint, Younger does not “require[] abstention
in deference to a state judicial proceeding reviewing
legislative . . . action.” NOPSI, 491 U.S. at 368.

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This case does not fall within the two limited categories
of civil cases that “define Younger’s scope.” Sprint, 134 S.
Ct. at 591. The district court thus was wrong to abstain.
II. Preclusion
We may not consider events after the filing of the
complaint for purposes of our Younger analysis, Potrero
Hills, 657 F.3d at 881 n.6, but we must consider subsequent
developments for purposes of preclusion, see ReadyLink,
754 F.3d at 760–61. Here, the subsequent state court
decision on the merits of Cook’s constitutional claims
precludes further litigation of these issues in federal court.
On February 9, 2016—just one week after Cook filed her
complaint in federal court—the Children’s Court denied
Cook’s counterclaim to C.M.’s parentage petition, which
included her constitutional claims. Cook appealed to the
California Court of Appeal, which affirmed in a published
opinion on January 26, 2017. C.M. v. M.C., 213 Cal. Rptr.
3d 351 (Ct. App. 2017). The California Supreme Court
denied review, and the Supreme Court denied certiorari,
M.C. v. C.M., 138 S. Ct. 239 (2017), cert. denied.
We must give the same preclusive effect to the California
Court of Appeal’s judgment as California courts would.
Gonzales v. Cal. Dep’t of Corrs., 739 F.3d 1226, 1230–31
(9th Cir. 2014). “Issue preclusion ‘bars “successive litigation
of an issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment,”
even if the issue recurs in the context of a different claim.’”
ReadyLink, 754 F.3d at 760 (quoting Taylor v. Sturgell,
553 U.S. 880, 892 (2008)). California’s test for issue
preclusion has five threshold requirements:
First, the issue sought to be precluded from
relitigation must be identical to that decided

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C OOK V . HARDING 13
in a former proceeding. Second, this issue
must have been actually litigated in the
former proceeding. Third, it must have been
necessarily decided in the former proceeding.
Fourth, the decision in the former proceeding
must be final and on the merits. Finally, the
party against whom preclusion is sought must
be the same as, or in privity with, the party to
the former proceeding.
Id. at 760–61 (quoting Lucido v. Superior Court, 795 P.2d
1223, 1225 (Cal. 1990) (in bank)).
Cook does not and could not credibly argue that the
issues in the two proceedings are different; the factual
allegations she made in both state and federal court are
almost identical in the literal sense of the word. See
Hernandez v. City of Pomona, 207 P.3d 506, 514 (Cal. 2009)
(“The ‘identical issue’ requirement addresses whether
‘identical factual allegations’ are at stake in the two
proceedings, not whether the ultimate issues or dispositions
are the same.” (quoting Lucido, 795 P.2d at 1225)). Nor does
Cook dispute the finality of the Court of Appeal’s opinion or
that she was a party in the state court proceeding. Instead,
her arguments against issue preclusion appear to be directed
at the second and third requirements: whether the issues
were actually litigated and necessarily decided in the state
court proceeding.
In the context of issue preclusion, an issue is actually
litigated “[w]hen [it] is properly raised, by the pleadings or
otherwise, and is submitted for determination, and is
determined.” People v. Sims, 651 P.2d 321, 331 (Cal. 1982)
(quoting Rest. 2d, Judgments (1982) § 27, com. d, p. 255);
see also Hernandez, 207 P.3d at 514. To be necessarily

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decided, California law requires “only that the issue not have
been ‘entirely unnecessary’ to the judgment in the initial
proceeding.” Lucido, 795 P.2d at 1226. The two
requirements are therefore interrelated. Inasmuch as an issue
was necessarily decided in a prior proceeding, it was also
actually litigated. See In re Baldwin, 249 F.3d 912, 919 (9th
Cir. 2001); see also In re Harmon, 250 F.3d 1240, 1248 n.9
(9th Cir. 2001) (explaining that the converse proposition is
not true).
Cook’s position is that her constitutional claims “have
never been directly addressed and decided.” This is baseless
in light of the Court of Appeal’s thorough and well-reasoned
opinion, which devotes over eight pages to addressing each
of her constitutional challenges in turn. See C.M., 213 Cal.
Rptr. 3d at 363–70. The relevant section of the opinion
begins with the heading “[Cook]’s Constitutional
Challenges Fail.” Id. at 363. After finding that Cook had
standing, the Court of Appeal explicitly proceeded to the
merits of her constitutional claims, id. at 366 (“We therefore
proceed to the merits of [Cook]’s constitutional claims.”),
and finally concluded “that the Agreement did not violate the
constitutional rights of [Cook] or the children,” id. at 370.
On the basis of this language and the Court of Appeal’s
analysis, there is no question that any and all constitutional
claims were necessarily decided in the state court
proceeding.
Cook nevertheless insists that the Court of Appeal did
not decide her claims because it relied upon prior California
cases that were decided on public policy rather than
constitutional grounds. She argues that because the cited
precedent did not address or decide all of the constitutional
issues she raised, the Court of Appeal’s decision is likewise
limited and engaged in no further, independent analysis. We

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C OOK V . HARDING 15
need not parse Cook’s reading of the earlier California cases.
Whether the Court of Appeal relied on cases that addressed
only public policy considerations or on no cases at all, it still
had the authority to decide Cook’s constitutional claims, see
Cal. Const. Art. 6, §§ 1, 3; see also, e.g., Schmoll v.
Chapman Univ., 70 Cal. App. 4th 1434, 1436 (1999)
(deciding establishment and free exercise issues of first
impression); People v. Bye, 116 Cal. App. 3d 569, 573
(1981) (deciding due process issue of first impression); In re
David G., 93 Cal. App. 3d 247, 250 (1979) (deciding equal
protection issue of first impression), and it unequivocally
decided them here. Moreover, it squarely addressed this
exact argument:
[W]e are not persuaded by [Cook]’s assertion
that “the public policy considerations raised
in [Johnson v. Calvert, 851 P.2d 776 (Cal.
1993) (in bank)] are not applicable to a
constitutional challenge.” We do not believe
that our Supreme Court would have held that
the surrogacy contract in Calvert was
consistent with public policy if it believed
that the surrogacy arrangement violated a
constitutional right.
C.M., 213 Cal. Rptr. 3d at 370 n.14; see also id. at 368 n.12.
Throughout its lengthy opinion, the Court of Appeal
acknowledged the limits of Calvert before extending
Calvert’s reasoning to Cook’s claims and completing its own
constitutional analysis. See id. at 367–70.We thus find that
all of Cook’s constitutional claims were necessarily decided
as well as actually litigated.
If the threshold requirements of issue preclusion are met,
a court must consider “whether preclusion would be

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16 C OOK V . HARDING
consistent with the ‘preservation of the integrity of the
judicial system, promotion of judicial economy, and
protection of litigants from harassment by vexatious
litigation.’” ReadyLink, 754 F.3d at 761 (quoting Lucido,
795 P.2d at 1227). Preclusion in this case furthers these
“public policies underlying the doctrine.” Lucido, 795 P.2d
at 1226. Giving the Court of Appeal’s opinion preclusive
effect is in the interest of both comity and consistency. See
id. at 1229. It preserves judicial resources by ending this
two-year set of proceedings in which Cook chose to litigate
her identical claims simultaneously in two forums. Finally,
Cook’s pursuit of her constitutional claims may not have
been “baseless or unjustified,” see id. at 1232, but the legally
irrelevant and deeply disparaging allegations about C.M’s
ability, intellect, and socioeconomic status throughout her
pleadings are wholly inappropriate. For these reasons, we
decline to “tackle anew the precise legal issue[s] resolved by
the California Court of Appeal.” ReadyLink, 754 F.3d at 762.
CONCLUSION
The district court was wrong to abstain pursuant to
Younger. Notwithstanding this error, we AFFIRM the
dismissal of the complaint because the California Court of
Appeal’s decision precludes further litigation of Cook’s
constitutional claims.

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