131-1 Omnibus Memo

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 1 of 22

1 Stephen D. Lucas (74726) [email protected]

2 LUCAS & HA VERKAMP LAW FIRM

3 A Professional Corporation Attorneys at Law 4350 Executive Drive, Suite 260

4 San Diego, California 92121

5 (858) 535-4000 • Facsimile (858) 535-4001

Attorne_ys for Defendant SAN DIEGO 6 COUNTY BAR ASSOCIATION

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

11 CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, a Delaware

12 Q_ublic benefit com9ration; and COLBERT C. STUART, an individual,

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15 v.

Plaintiffs,

SAN DIEGO COUNTY BAR 16 ASSOCIATION, a California corporation;

17 et al.,

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Defendants.

Case No. 3:13-cv-01944-CAB-BLM

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT rFed.R.Civ.P. 8(a), 8(e), 9(b), 12(b)(l), l2(b)(6) and 41 (b)]

Date: June 6, 2014 Time: 2:00 p.m. Ctrm: Courtroom 4C Judge: Cathy Ann Bencivengo

rNo ORAL ARGUMENT UNLESS lIBQUESTED BY THE COURT] Complaint filed: August 20, 2013

3:13-cv-1944-CAB-BLM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT


1 TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ...................................................................................... ii

3 I INTRODUCTION AND SUMMARY OF MOTION ....................................... 1 4 II

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THE FAC SHOULD BE DISMISSED WITH PREJUDICE PURSUANT TO RULE 41(b) FOR FAILURE TO

6 COMPLY WITH FRCP 8 AND 91 ................................................................... 2

7 A. Failure To Comply With Rule 8(a) and 8)e) .............................................. 2 B. Violation Of The Court Order .................................................................... 5

8 C. Violation Of Rules Warrant Dismissal Under Rule 41(b) ....................... 6

9 D. Leave To Amend Should Be Denied ........................................................... 7

10 III PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTE

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OF LIMITATIONS ............................................................................................. 9

IV THE FAC SHOULD BE DISMISSED FOR LACK OF JURISDICTION UNDER FRCP 12(b)(l) AND/OR ROOKER-FELDMAN .................................................................................... 11

14 V PLAINTIFFS' CLAIMS ARE BARRED BY THE

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ELEVENTH AMENDMENT ......................................................................... 12

VI THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM PURSUANT TO 12(b)(6) ................................................ 12 A. Plaintiffs Fail To State Claims Under 42 U.S.C. §1983

Against The SDCBA And Numerous Others Because They Are Not State Actors ....................................................................... 13

B. Plaintiffs Fail To State Claims For Violations Of 15 U.S.C. 1125 (The Lanham Act) ........................................................... 14

C. Plaintiffs Fail To State RICO Claims ...................................................... 15

CONCLUSION ......................................................................................................... 16

i 3:13-cv-1944-CAB-BLM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT


1 TABLE OF AUTHORITIES

2 CASES

3 Action Apartment Assoc. v. Santa Monica Rent Control

509 F .3d 1020 (9th Cir. 2007) .............................................................................. 9 4

5 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................... 12

6 Bell At/. Corp. v. Twombley, 550 U.S. 54r (2007) ................................... 12, 13, 14, 16

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Cafasso, US. ex rel. v. General Dynamics C4 Systems, Inc. 637 F.3d 1047 (9th Cir. 2011) .............................................................................. 7

Carmona v. Carmona, 603 F.3d 1041 (9th Cir. 2010) ................................................ 11

Chol/a Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004) ............................... 13

12 District a/Columbia Court of Appeals v. Feldman, 460 U.S. 462 ............................ 11

13 Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ................. 11

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15 Edwards v. Marin Park, Inc. 356 F.3d 1058 (9th Cir. 2004) ..................................... 15

16 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ...................... 11

17 Greater L.A. Council on Deafness, Inc. v. Zolin

18 812 F.2d 1103 ((9th Cir. 1987)

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20 Jurin v. Google, Inc., 695 F.Supp.2d 1117 (E.D. Cal. 2010) .................................... 15

21 Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343 ...................................... 8

22 Krainski v. State of Nevada ex.rel. Bd. of Regents

23 616 F.3d 963 (9th Cir. 2010) ............................................................................. 14

24 Lantzy v. Centex Homes, 31Cal.4th363 (2003) ........................................................ 10

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26 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .......................................... 13

27 McDade v. West, 223 F.3d 1135 (9th Cir. 2000) ....................................................... 13

28 McDougal v. County of Imperial, 942 F.2d 668 ........................................................... 9 ii 3:13-cv-1944-CAB-BLM

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT


1 McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ......................................................... 5

2 Mendoza v. Golden West Savings Assoc. Services Co.

3 2009 WL 2050486 ................................................................................................. 3

4 Metzler Inv. GMBH v. Corinthian Calls., Inc., 540 F .3d 1049 (9th Cir. 2008) ........ 6, 7

5 Moss v. US. Secret Service, 572 F.3d 962 (9th Cir. 2009) ........................................ 14

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7 Nevijel v. North Coast Life Ins. Co., 651F.2d671 (9th Cir. 1981) ......................... 2, 7

8 Pennhurst v. Halderman, 465 U.S. 89 (1984) ............................................................ 12

9 Presidio Group, LLCv. GMAC Mortg. LLC, 2008 WL 1595675 ................................ 8

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11 Presidio Group, LLC v. Juniper Lakes Development, LLC, 2010 WL 1331138 ................................................................................................ 8

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13 Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183 (9th Cir. 1996) ...................... 8

14 Schucker v. Rockwood, 846 F.2d 1202 (9th Cir. 1988) ............................................. 14

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16 Simmons v. Sacramento Superior Court, 318. F.3d 1156 (9th Cir. 2003) ................. 14

17 Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997) ! ............... 15

18 Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920 ...................... 8

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Uribe v. Countrywide Financial, 2009 WL 1953413 ................................................... 3

Vess v. Ciba-Geigy Corp., 317 F.3d 1097 (9th Cir. 2003) ........................................ 16

VonSaher v. Norton Simon Museum of Art at Pasadena 592 F.2d 954 (9th Cir. 2010) ................................................................................ 9

West v. Atkins, 487 U.S. 42 (1988) ............................................................................ 13

World Thrust Films, Inc. v. International Family Entertainment, Inc. 41 F.3d 1454 (11th Cir. 1995) .............................................................................. 7

Yourish v. California Amplifier, 191F.3d983 (9th Cir. 1999) ..................................... 7

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STATUTES

California Government Code, §6254.21 ....................................................................... 6

California Penal Code §207 ....................................................................................................................... 4

§602 ................................................................................................................... 10 §802 .................................................................................................................. 10

Federal Rules of Civil Procedure Rule 8(a) ............................................................................................... 1, 2, 5, 15 Rule 8(e) ........................................................................................... 1, 2, 5, 7, 15 Rule 9(b) .............................................................................................. 2, 5, 7, 15 Rule 12(b )(1) ................................................................................................ 1, 11 Rule 12(b)(6) .......................................................................... 1, 9, 12, 13, 15, 16 Rule41(b) .......................................................................................... 1,2,5,6,7

United States Code §1125 ................................................................................................................ 14 §1983 ...................................................................................................... 9, 13, 14 § 1985 ................................................................................................................... 9

Constitution, Eleventh Amendment ........................................................................... 12

iv 3:13-cv-1944-CAB-BLM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF



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2 INTRODUCTION AND SUMMARY OF MOTION

3 Pursuant to the court's order [Doc. 107], this omnibus motion is brought on

4 behalf of all defendants in order to ease the burden on the court and parties imposed by

5 plaintiffs' prolixity. This motion seeks dismissal with prejudice of plaintiffs' First

6 Amended Complaint ["F AC" Doc. 90] that was filed after the court granted prior

7 motions to dismiss for failure to comply with Federal Rule of Civil Procedure 81 and

8 issued a thorough Order allowing plaintiffs leave to amend with instructions that

9 plaintiff, a former member of the California State Bar, comply with Rule 8 and

10 coherently identify his claims "without unnecessary verbiage, argument, and rhetoric."

11 [Doc. 88.] The FAC is even worse than the original complaint. It is 76 pages longer,

12 adds new defendants and new claims, and is unreasonably convoluted, confusing, and

13 incomprehensible.

14 The F AC should be dismissed with prejudice on the following grounds:

15 1) pursuant to Rule 41 (b) for failure to comply with Rules 9(b ), 8( a), 8( e) and

16 for violations of the court's order and other rules;

17 2) pursuant to Rule 12(b)(l) for lack of jurisdiction under the Eleventh

18 Amendment and the Rooker/Feldman doctrine;

i9 3) pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be

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28 1 All references to Rules are to the Federal Rules of Civil Procedure unless otherwise indicated.

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THE FAC SHOULD BE DISMISSED WITH PREJUDICE PURSUANT

TO RULE 41(b) FOR FAILURE TO COMPLY WITH FRCP 8 AND 9

5 A complaint that fails to comply with Rules 8(a) and 8(e) may be dismissed with

6 prejudice pursuant to Rule 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,

7 673-674 (9th Cir. 1981). Rule 41(b) provides that defendants may move for dismissal

8 due to plaintiffs' failure to comply with the rules or any order of the court. Plaintiffs

9 have failed to comply with the rules governing pleadings, as well as other rules, and

10 have failed to comply with this court's Order filed December 23, 2013 [Doc. 88.] A

11 dismissal with prejudice is justified under the circumstances here.

12 A. Failure To Comply With Rule 8(a) and 8(e)

13 Rule 8(a) states a pleading "shall" contain a "short and plain statement of

14 the grounds on which the court's jurisdiction depends" ... and a "short and plain

15 statement of the claim showing that the pleader is entitled to relief. ... " Rule 8( e)

16 states a pleading shall be simple, concise, and direct."

17 The F AC totally fails to comply with these rules. It is 251 pages long with

18 over 1250 pages of attachments. [Doc. 90, 90-1 to 90-13.] The attachments appear to

19 be exhibits but are not readily identifiable, indexed, marked, or organized. (Deel.

20 Lucas ~~2, 3.)

21 The original complaint identified three plaintiffs, one of which, Lexevia, is

22 a suspended corporation and appeared without counsel. Accordingly, Lexevia's claims

23 were dismissed. [Doc. 88 at p. 5.] The FAC now identifies only two plaintiffs,

24 Colbern C. Stuart III, appearing pro se, and California Coalition For Families and

25 Children, a Delaware Public Benefit Corporation. California Coalition is now

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2 3: 13-cv-1944-CAB-BLM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF



1 represented by Dean Browning Webb, pro hac vice.2 Local Counsel, Eric Ching, has

2 moved to withdraw as counsel in this case, which would again leave California

3 Coalition without counsel. [Doc. 97, 98.]

4 The F AC identifies over 58 defendants including the San Diego County

5 Bar Association, numerous judges, the San Diego Superior Court, the City and the

6 County of San Diego, other officials, officers, the Sheriff, and numerous individuals

7 and firms related to the family law system. [Doc. 90 at pp. 2-14.] The FAC caption

8 page identifies only four claims, but it actually contains over 130 "titled" claims and

9 many of those contain multiple sub-claims alleged shotgun style in one long sentence

10 within the text. For example, Claim 2.3 is titled "wrongful inducement to breach

11 contract, covenant of good faith and fair dealing against Stuart Assault Coordinator

12 defendants." [FAC Doc. 90 at p. 66.] But the first paragraph states, "This is a Claim

13 by Stuart for wrongful inducement to breach contract, breach of covenant of good faith

14 and fair dealing, wrongful interference with prospective contractual relations, and

15 defamation against all Stuart Assault Coordinator Defendants under California State

16 law and 42 U.S.C. §1983 and Cal. Const. art.I, §26." [Id. at ~319.] Each of these

17 claims has its own set of elements and cannot be combined in one claim under Rule 8.

18 There is no good way to respond to this multi-theory combination-claim since it

19 incorporates numerous separate and distinct theories against numerous defendants.

20 United States ex.rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378

21 (7th Cir. 2003) [dismissal with prejudice of 155-page "sprawling" complaint was

22 proper so the court and parties "need not try to fish a gold coin from a bucket of mud"].

23 This is on point here: each defendant is forced to comb through pages of verbose,

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2 Defense counsel located orders by California District Courts denying and reversing attorney Webb's pro hac vice appointments, but was unable to locate a database that would show whether his appointment in this case is improper because, for example, he has applied pro hac vice in other cases within the past year. (See Mendoza v. Golden West Savings Assoc. Services Co., 2009 WL 2050486 and Uribe v. Countrywide Financial, 2009 WL 1953413.)




1 convoluted material to try to find any facts supporting any claim against them.

2 Multi-theory combination claims exist throughout the F AC and make it impossible for

3 the court to analyze and for defendants to respond. (See FAC at ~~349, 541, 545,

4 716, 761.)

5 The list of "Stuart Assault Coordinator Defendants," named in numerous

6 claims, is buried somewhere among numerous acronyms and disorganized lists

7 scattered throughout the F AC. Even if a defendant can locate what group of

8 wrongdoers they allegedly belong to, there are allegations that "all defendants"

9 conspired or belong to vaguely defined criminal enterprises, such that it is literally

10 impossible to determine who is being sued for what. [See, e.g., FAC Doc. 90 at p. 125

11 Count 6; p. 147 Count 9; p. 157 Count 10; p. 172 Count 12, and p. 175 Count 13.]

12 Many claims fail to provide clear notice as to who is being sued. For

13 example, Racketeering Claim 3.2 provides:

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"Racketeering Claim For Relief 3.2 Kidnapping

Cal.Pen. C. §207(a) Against City Attorney Defendants, Groch, Gore"

"~1049. This is a claim for kidnapping ... against each City Attorney defendant, SDCBA, SDCBA Doe 2, Chubb, Chubb Doe 1, Groch, and Gore based upon their activities in the MALICIOUS PROSECUTION, PROSECUTORIAL MISCONDUCT, and each of the six FALSE IMPRISONMENTS."

23 The SDCBA is not named in the title, but is identified in the paragraph

24 beneath the title, which appears to be a tactic to force all 58 defendants to read through

25 every page and line of this manifesto to try to figure out who is suing whom for what.

26 Also, it is unclear who is claiming damages. Many of the claims state they

27 are brought "by Stuart" and appear to stem from one of his individual claims related to

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1 concludes with the allegation that "plaintiffs" were injured. [F AC Doc. 90 at Claims 1.1

2 to 1.12.] Such plural damage allegations are especially defective here because the FAC

3 still contains allegations about Lexevia, even though it is no longer in the caption,

4 making it unclear whether it is still attempting to recover. [FAC Doc. 90 at if~lOl, 102.]

5 To the extent these plural damage claims are intended to include the

6 California Coalition, they must be dismissed because that corporation was not formed

7 until the day before the complaint was filed and therefore did not exist at the time these

8 events occurred. (See Request for Judicial Notice Ex. 3.)

9 In addition, as discussed more fully below, Rule 9(b) requires many of the

10 claims alleged here to be pled with heightened particularity because they are based

11 upon fraud.

12 The F AC so utterly defies the law set forth in Rules 8 and 9 that a

13 dismissal with prejudice is proper, especially given this is not a case where a layperson

14 plaintiff might be unfairly prejudiced by poor lawyering out of his control. Plaintiff

15 was a lawyer, he represents himself pro se, he is the president and CEO of the

16 corporation he formed the day before filing suit, he knows the rules and chose to violate

17 them. A dismissal with prejudice is proper here. McHenry v. Renne, 84 F.3d 1172,

18 1177 (9th Cir. 1996).

19 B. Violation Of The Court Order

20 Rule 41 (b) grants discretion to dismiss the F AC for failure by the plaintiff

21 to comply with the rules or any order of the court. Plaintiffs' original complaint

22 violated Rule 8 and was dismissed on that ground with clear instructions to comply

23 with Rule 8 and state claims "without unnecessary verbiage, argument, and rhetoric."

24 [Court Order, Doc. 88 at p. 9.]

25 Plaintiffs' F AC is even worse than the original. It is pages longer, adds

26 new defendants, and contains a whole new set of claims for "obstruction of justice"

27 against those who demanded plaintiffs remove the publication of judges' personal

28 addresses, and contains facts indicating plaintiff failed to comply with the demand to




1 remove the information after receiving a proper demand to do so pursuant to Cal. Gov't

2 Code section 6254.21. [FAC Doc. 90 at pp. 101-110.]

3 The FAC so totally fails to comply with the court's Order that it reflects a

4 measure of disrespect for the court and the law. The court has discretion to dismiss

5 with prejudice under these circumstances. Metzler Inv. GMBH v. Corinthian Coils.,

6 Inc., 540 F.3d 1049. 1072 (9th Cir. 2008)

7 C. Violations Of Rules Warrant Dismissal Under Rule 41(B).

8 In addition to the above- described violations, Stuart has violated other

9 rules since day one. The original complaint was filed on behalf of corporations with no

10 attorney as required by law, and Lexevia was not even a valid corporation with the

11 capacity to sue. [Doc. No. 1 at 1; Doc. 88 at p. 5.]

12 The title page of the original complaint indicated Dean Browning Webb as

13 attorney for the corporations ''pro hac vice pending." [Doc. 1 at p. 1.] However, the

14 Pro Hae Vice Application for Dean Browning Webb was not submitted to the court

15 until January 2014, over five months after the representation it was "pending."

16 [Doc. 94.]

17 The original complaint published the addresses of judges and when

18 plaintiffs were told to remove this information from the internet pursuant to

19 Government Code section 6254.21, plaintiff alleges, "as a courtesy" he complied.

20 [FAC, Doc. 90 at i!i!525, 538.] He says this as if he had a choice to comply with the

21 law. He then sued the parties who requested removal of this information. [FAC p. 101,

22 Count 4.] The demand letter from court counsel Nesthus (which is among the

23 attachments to the F AC) states it is a violation of the Southern District General Orders

24 to publish home addresses.

25 Plaintiffs next filed a motion for preliminary injunction on the same day of

26 the court hearing for a case management conference [Doc. 102.] that was rejected for

27 violation of the rules requiring the motion to be filed within three days of receipt of the

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1 hearing date and noting it was not signed by counsel on behalf of the corporate

2 plaintiff. [Doc. 106.]

3 A dismissal for violations under Rule 41 (b) includes violations of local

4 rules, oral orders, and minute orders. Yourish v. California Amplifier, 191 F.3d 983,

5 987 (9th Cir. 1999); World Thrust Films, Inc. v. International Family Entertainment,

6 Inc., 41 F.3d 1454, 1456 (I Ith Cir. 1995).

7 D. Leave To Amend Should Be Denied.

8 In addition to the above-described grounds to dismiss with prejudice, the

9 court has discretion to dismiss for Rule 8 and 9 pleading failures without leave to

10 amend, and that discretion is particularly broad where, as here, plaintiff has previously

11 amended the complaint. Metzler Inv. GMBH v. Corinthian Colts., Inc., 540 F.3d 1049.

12 1072 (9th Cir. 2008). The denial of leave to amend is proper where there is undue

13 prejudice to defendants, bad faith by the plaintiffs, and futility. Cafasso, US. ex rel. v.

14 General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011).

15 On point here, in Nevijel v. North Coast Life Ins. Co., 651 F.2d 671

16 (9th Cir. 1981) the court also looked at the plaintiffs history of alleging conspiracies

17 and repeated failures to comply with the Rules of Civil Procedure. (Id. at pp. 674-675.)

18 The plaintiffs history in other cases supported the conclusion that dismissal with

19 prejudice was not an abuse of discretion. (Id.)

20 Applying this law, the court would be well within its discretion in denying

21 leave to amend. Plaintiffs' prior amendment defiantly violated the court's Order and

22 Rule 8 by adding parties, claims, and pages of verbose argument and rhetoric, which

23 indicates bad faith. The prejudice to the court and defendants is obvious in the

24 inordinate amount of time and resources needed to review the F AC and respond.

25 Stuart and his counsel have engaged in a pattern of violating the Rules

26 indicative of an unwillingness to comply such that another request to comply would be

27 futile. In addition to the violations thus far in this case, attorney Dean Browning Webb

28 has been engaged in similar conduct for over 15 years despite being sanctioned by the




1 Ninth Circuit Court of Appeals for it. Salstrom v. Citicorp Credit Services, Inc.,

2 74 F.3d 183 (9th Cir. 1996) [sanctions against Dean Browning Webb affirmed for bad

3 faith based on number and length of pleadings, timing of the filings, and substance of

4 claims, converting a simple debt collection into a full-fledged assault]. See also,

5 Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920, stating: "Many

6 courts in this district and elsewhere have consistently and repeatedly warned Webb that

7 his litigation practices are improper and problematic." The Stephens court cites several

8 cases involving Webb's history of defective pleadings and prior warning he may be

9 personally liable for "unreasonably and vexatiously multiplying proceedings." (See

10 Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343; Presidio Group, LLC v.

11 Juniper Lakes Development, LLC, 2010 WL 1331138. One judge even wrote a

12 limerick about him. Presidio Group, LLC v. GMAC Mortg. LLC, 2008 WL 2595675.

13 This case is proof that Webb has ignored repeated warnings which shows

14 another chance to amend would be futile.

15 Besides, as shown below, none of the claims passes muster under

16 Rule 12(b )(6).

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III

PLAINTIFFS' CLAIMS ARE BARRED

BY THE STATUTE OF LIMITATIONS

A motion to dismiss under FRCP 12(b )( 6) can be granted where the facts and

dates in the complaint show the claims are barred by the statute of limitations.

Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969

(9th Cir. 2010)

Stuart admits a "central subject of this litigation" occurred on April 15, 2010 at

the San Diego County Bar Association seminar where he was allegedly forcibly

removed. [FAC Doc. 90 at ~~109, 121-133.] This event is the basis for numerous

claims brought under 42 U.S.C. §1983 and §1985, all of which are barred by the

two-year statute of limitations. Action Apartment Assoc. v. Santa Monica Rent Control,

509 F.3d 1020, 1026 (9th Cir. 2007) [§1983 claims borrow the forum State's statute of

limitations for personal injury claims and in California that is two years]; McDougal v.

County of Imperial, 942 F.2d 668, 673-674 [§1985 and §1983 governed by the same

statute of limitations]. The statute begins to run when plaintiff knows or has reason to

know of the injury. (Id.)

The complaint was filed August 20, 2013, more than three years after the

seminar. Stuart's amended complaint tries to avoid the statute of limitations with

conclusory allegations of equitable tolling based on duress supposedly due to threats by

SDCBA's insurance carrier, Chubb. Stuart alleges that after the seminar, he made a

claim for damages by letter to the SDCBA and in response Chubb threatened that if he

moved forward with a claim, Chubb and the SDCBA would prosecute him for

committing a criminal trespass at the seminar. He alleges such a criminal trespass

claim would be false, but that as a result of this threat, he was intimidated and

frightened by what he considered to be a threat to his personal security. [F AC Doc. 90

at ~~353-368.] He alleges this duress and fear caused him to cease pursuing his claim

and operates to toll the running of the statute of limitations. [Id. at ~466.] 9 3: 13-cv-1944-CAB-BLM



1 The court must reject Stuart's equitable tolling claim as follows.

2 First, assuming arguendo a threat to prosecute Stuart for a trespass at the

3 seminar, the statute of limitations on that trespass charge expired one year after the date

4 of the event pursuant to California Penal Code section 802(a). (See Cal. Pen. Code

5 § §602, 602.1, trespass or interference with business establishment are misdemeanors

6 triggering the one-year statute under Pen. Code §802(a).) Because the statute of

7 limitations on the threatened charge expired April 15, 2011, the alleged "tolling event"

8 concluded, yet he still did not file the instant complaint for over two years after that -

9 long after any threat of a trespass charge was gone. Equitable tolling only suspends

10 the running of the limitations period while the tolling event is occurring and the statute

11 begins to run again when the tolling event is concluded. Lantzy v. Centex Homes,

12 31Cal.4th363, 370-371 (2003).

13 Equitable tolling is a judge-made doctrine that operates to suspend the statute of

14 limitations as necessary to ensure fundamental practicality and fairness. Lantzy,

15 31 Cal.4th at 370. It will be applied in "carefully considered situations to prevent

16 unjust technical forfeiture of causes of action, where the defendant would suffer no

17 prejudice." (Id.) Also, as an equitable principle, the court must balance the equities and

18 consider the important public policy expressed by the statutes of limitations. (Id. at

19 p. 371.)

20 Applying this law to the facts here, the equities do not tip in Stuart's favor. The

21 SDCBA seminar was almost four years ago. Memories fade, making it more difficult

22 to defend against old claims, and in this case Stuart is trying to sue dozens of people

23 related to this event, many of whom are alleged to be conspirators of some kind making

24 it even more difficult to respond.

25 Thus, in addition to all the other grounds supporting a dismissal of plaintiffs'

26 case, the fact the majority of claims are plainly time barred on the face of the complaint

27 further justifies a dismissal with prejudice.

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IV THE FAC SHOULD BE DISMISSED FOR LACK OF

JURISDICTION UNDER FRCP 12(b)(l) AND/OR ROOKER-FELDMA~

Although the F AC contains incomprehensible ramblings making it impossible to

assert focused pleading attacks, Stuart alleges at several points that he has been the

victim of illegal court orders issued by the San Diego Superior Court as well as arrests

and incarcerations by San Diego authorities that were all unlawful. [F AC Doc. 90 at

~~373-374, 392, 416, 462-464, 821, 837-838.] These claims are nothing more than

de facto appeals from state court judgments and orders. Federal district courts do not

have jurisdiction to hear de facto appeals from state court judgments or to review

alleged errors in state court decisions. Dist. of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 476; Carmona v. Carmona, 603 F.3d 1041, 1050-1051 (9th Cir. 2010).

Known as the Rooker-Feldman doctrine, a federal district court is precluded from

hearing "cases brought by state-court losers complaining of injuries caused by state

court judgments .... " Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005), and this rule applies not only to final state court orders and judgments but

to interlocutory orders and non-final state court judgments as well. Doe & Assoc. Law

Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).

Stuart alleges he is the victim of the unlawful orders and judgments of the state

court and that numerous (or possibly all) defendants including the SDCBA are

somehow part of this unlawful court system. [F AC Doc. 90 at ~462 and Count 9 at

p. 14 7.] Putting aside the implausible nature of the allegations that the SDCBA and

many other private individual/entity defendants are all conspirators against Stuart in the

state court orders and actions - some of which occurred before the SDCBA seminar

took place, each claim related to the unlawful orders and judgments against Stuart

should be dismissed for lack of jurisdiction. (Request for Judicial Notice, Exhs. 1, 2.)

Ill

Ill 11 3: 13-cv-1944-CAB-BLM

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT


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v PLAINTIFFS' CLAIMS ARE BARRED BY THE ELEVENTH AMENDMENT

The Eleventh Amendment bars suit against a state or its agencies, such as the

superior court, for all types of relief, absent unequivocal consent by the state.

Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Greater L.A. Council on

Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 n.10 (9th Cir. 1987) [Eleventh

Amendment bars suit against California State Superior Court for damages, injunctive

and declaratory relief].

As stated, many of Stuart's claims allege unlawful orders by the state court for

which he alleges many other private party defendants are somehow jointly liable. [See

e.g., FAC Doc 90 at pp. 14-15, ,-r,-r462-464.] All these claims are barred by the Eleventh

Amendment.

VI

THE FAC SHOULD BE DISMISSED FOR

FAILURE TO STATE A CLAIM PURSUANT TO 12(b)(6)

The court should dismiss each claim alleged in the F AC under FRCP 12(b )( 6) for

failure to state a claim, especially given the more recent 12(b )( 6) pleading standards

authorized by the United States Supreme Court allowing district courts to dismiss

claims earlier by analyzing whether the plaintiff has pled a claim that is plausible, and

in making that determination the court is to look at the context of the case and draw on

the judge's judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S. 662

(2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007). Further, threadbare recitals

of a claim's elements supported by mere conclusory statements do not suffice. Iqbal,

556 U.S. at 676. For example, as in this case, conclusory statements that defendants

conspired to violated plaintiffs rights are not sufficient. Twombly, 550 U.S. at 557.

In ruling on a Rule 12(b )( 6) motion, the court may consider material not attached

to the complaint if their authenticity is not contested, the plaintiffs' complaint

necessarily relies on them, and may consider matters of public record. Lee v. City of

12 3: l 3-cv-1944-CAB-BLM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF



1 Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2001). Accordingly, filed here in the

2 Request For Judicial Notice are records showing there was an arrest warrant issued for

3 Stuart before the SDCBA seminar.

4 Because the F AC is too difficult to understand as far as exactly who is asserting

5 what claim against which defendant, the following may not cover every 12(b )( 6) defect.

6 These are essentially those that jumped out.

7 A. Plaintiffs Fail To State Claims Under 42 U.S.C. §1983 Against The

8 SDCBA And Numerous Others Because They Are Not State Actor~.

9 Almost all plaintiffs' claims are alleged violations of their civil rights

10 actionable under 42 U.S.C. § 1983 (either directly alleged or by incorporation of all

11 prior allegations). [F AC Doc. 90 at Counts 1-8, 11-15.] Section 1983 does not create a

12 cause of action, but is a vehicle by which plaintiffs can bring federal constitutional

13 challenges to actions by state and local officials. Challa Ready Mix, Inc. v. Civish,

14 382 F.3d 969, 978 (9th Cir. 2004). The purpose of section 1983 is to deter state actors

15 from using the badge of their authority to deprive individuals of the federally

16 guaranteed rights. McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000).

17 An essential element of plaintiffs' claim missing here is a set of plausible

18 facts, and not mere "boiler-plate-conclusory statements" showing the SDCBA and

19 other defendants were state or local officials acting under color of state law or had

20 conspired with state officials to violate plaintiffs' rights. West v. Atkins, 487 U.S. 42,

21 48 (1988); Twombly, 550 U.S. at 557.

22 Plaintiffs allege the SDBCA is a California corporation. [F AC Doc. 90

23 at ,-rs.] Likewise, many other defendants are alleged to be private individuals or

24 entities. [FAC Doc. 90 at ilil36-62.] The FAC purports to state numerous claims

25 against all defendants under 42 U.S. §1983. However, there are no specific facts

26 showing an agreement between all these private parties and any state actor acting under

27 color of law. Count 3 for "Malicious Prosecution, Obstruction of Justice" on page 70,

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1 private party defendants for deprivation of rights "under color of law" with no facts

2 establishing the necessary elements of an agreement or conspiracy.

3 Although it is nearly impossible to find facts anywhere in this massive

4 pleading, the occasional conclusory phrase can be found to the effect that defendants all

5 conspired with each other. Such conclusory allegations are insufficient to state a claim.

6 Twombly, 550 U.S. at 557; Simmons v. Sacramento Superior Court, 318 F.3d 1156,

7 1161 (9th Cir. 2003) [conclusory allegations that private attorney conspired with state

8 officer insufficient to support Section 1983 claim]; Schucker v. Rockwood, 846 F.2d

9 1202,1205 (9th Cir. 1988) [conclusory allegations of conspiracy between judge and law

10 firm insufficient for Section 1983 claim]; see also, Moss v. US. Secret Service,

11 572 F.3d 962, 970 (9th Cir. 2009) [conclusory allegations that Secret Service removed

12 protesters with the intent to suppress freedom of expression is insufficient]; Krainski v.

13 State of Nevada ex.rel. Bd of Regents, 616 F.3d 963, 969 (9th Cir. 2010) [allegation that

14 police officers knew or should have known statements about plaintiff leading to her

15 arrest were false was too conclusory].

16 Applying the plausible test, and drawing upon the court's judicial

17 experience and common sense, the court can determine plaintiffs cannot state claims

18 under 42 U.S.C. section 1983 against all defendants.

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B. Plaintiffs Fail To State Claims For Violations

Of 15 U.S.C. 1125 (The Lanham Act).

21 Count 13 of the F AC is against all defendants for "false description of

22 services" under the Lanham Act codified at 15 U.S.C. 1125.

23 The elements of a Lanham Act violation are: 1) a false or misleading

24 statement by defendant about his or another's product, 2) actual deception or a

25 tendency to deceive a substantial segment of the intended audience, 3) the deception is

26 material in that it is likely to influence purchasing decisions, 4) the advertised goods

27 travel in interstate commerce, and 5) a likelihood of injury to plaintiff in lost sales

28 I I I




1 or good will. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139

2 (9th Cir. 1997).

3 This is essentially a false advertising claim against every defendant in

4 which plaintiffs must show they actually and directly compete with the defendants.

5 Jurin v. Google, Inc., 695 F.Supp.2d 1117, 1122 (E.D. Cal.2010) [12(b)(6) motion

6 granted for failure to show direct competition].

7 This claim is also subject to the heightened pleading standard for fraud

8 under FRCP 9(b); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066

9 (9th Cir. 2004) [plaintiff must allege the time, place and specific content of false

10 representations].

11 The fatal flaw here is plaintiffs' allegation at FAC paragraph 912 that

12 ''plaintiffs compete with defendants for provision of legal services . ... " As a matter

13 of public record, Stuart has been disbarred or suspended from practicing law in every

14 state where he was admitted. (See Request for Judicial Notice, Exs. 4, 5, 6, 7, 8, 9.),

15 Lexevia is no longer a party and is a suspended corporation, and California Coalition is

16 not a law firm or otherwise licensed to practice law and did not even exist until one day

17 before the complaint was filed. (Request for Judicial Notice, Exs. 3, 10.)

18 Accordingly, Count 15 must be dismissed with prejudice under Rules 8,

19 9, and 12(b)(6).

20 c. Plaintiffs Fail To State RICO Claims.

21 There are about 31 RICO claims alleged against the SDCBA and over

22 57 other defendants, including allegations of violations of "tens of thousands" of laws

23 including "Enticement into slavery," "Sale into involuntary servitude," and "Service on

24 vessels in slave trade." [FAC Doc. 90 at pp. 208-209.]

25 In addition to the gross violation of FRCP 8 set forth above, there is a total

26 lack of specificity as to each defendant and the predicate acts as required by law. For

27 RICO claims based on fraud against multiple defendants, the requirements of

28 FRCP 9(b) must be met. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066




1 (9th Cir. 2004). The FAC alleges RICO claims against multiple defendants based upon

2 fraud. [FAC Doc. 90 at p. 208.] Such claims should be dismissed for failure to meet

3 the standards of pleading under 9(b ). Vess v. Ciba-Geigy Corp., 317 F .3d 1097, 1107-

4 1108 (9th Cir. 2003).

5 To the extent plaintiffs allege RICO claims on non-fraudulent acts, the

6 claims are deficient under Rule 12(b )( 6) for failing to state facts, as opposed to

7 conclusory statements, that would support relief. Twombly, 550 U.S. 544, 557.

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9 CONCLUSION

10 Based on the foregoing, defendants respectfully request the court dismiss the

11 F AC with prejudice.

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Dated: March 28, 2014.

Respectfully submitted,

LUCAS & HA VERKAMP LAW FIRM

By: sf Stephen D .. Lucas STEPHEN D. LUCAS

Attome_ys for Defendant SAN DIEGO COUNTY BAR ASSOCIATION [email protected]




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CCFC/Stuart v. San Di~o County Bar Association; et al. USDC Case No. 3 :cv-19 4-CAB-BLM

PROOF OF SERVICE

I am over the age of 18 and not a party to this adversary proceeding. My

business address is 4350 Executive Drive, Suite 260, San Diego, California 92121.

A true and correct copy of the foregoing document described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S OMNIBUS MOTION TO DISMISS

PLAINTIFFS' FIRST AMENDED COMPLAINT [Fed.R.Civ.P. S(a), S(e), 9(b), 12(b)(l), 12(b)(6) AND 4l(b)

will be served or was served on the interested parties in the form and manner required

by this Court pursuant to controlling General Orders: via NEF on the Electronic Mail

List to receive NEF transmission in . this matter. I declare under penalty of perjury

under the laws of the United States of America that the foregoing is true and correct.

Dated March 28, 2014 at San Diego, California.

ls/Janis Moore Janis Moore

111739.DOC 3:13-cv-1944-CAB-BLM

Documents

131-1 Omnibus Memo