131 Master Omnibus and Joinder

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.

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



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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,

28 simply lumps together City Attorney defendants with the SDCBA and numerous




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.

19

20

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.

8

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

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28 1Defs.’ Simi and Battson’s Joinder and Supplement to Mot. to Dismiss First Am. Compl.

(13-cv-1944-CAB-BLM)

KAMALA D. HARRISAttorney General of CaliforniaRICHARD F. WOLFESupervising Deputy Attorney GeneralState Bar No. 85346

110 West A Street, Suite 1100San Diego, CA 92101P.O. Box 85266San Diego, CA 92186-5266Telephone: (619) 645-2482Fax: (619) 645-2012E-mail: [email protected]

Attorneys for Defendants Lawrence J. Simi,and Brad Battson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FORFAMILIES AND CHILDREN., aDelaware Corporation, LEXEVIA, PC,a California Professional Corporation,and COLBERN C. STUART, anindividual,

Plaintiffs,

v.

SAN DIEGO COUNTY BARASSOCIATION, et al.,

Defendants.

13-cv-1944-CAB (BLM)

DEFENDANTS SIMI ANDBATTSON’S JOINDER ANDSUPPLEMENT TO OMNIBUSMOTION TO DISMISS FIRSTAMENDED COMPLAINT

Date: June 6, 2014Time: 2:00 p.m.Courtroom: 4CJudge: Cathy Ann BencivengoTrial Date: NoneAction Filed: August 20, 2013

NO ORAL ARGUMENT UNLESSREQUESTED BY COURT

Defendants Lawrence J. Simi and Brad Battson (erroneously named as

“Batson”) respectfully submit this Joinder and Supplement to Omnibus Motion to

Dismiss First Amended Complaint.1

1 Defendant Commission on Judicial Performance was previously dismissedwith prejudice. Order [Doc. No. 88] at 8:5-9.

Case 3:13-cv-01944-CAB-BLM Document 134 Filed 04/09/14 Page 1 of 3

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DISCUSSION

I. ELEVENTH AMENDMENT IMMUNITY

Defendant Simi is a former Chairperson and current member of the

Commission on Judicial Performance (CJP). Defendant Battson is a licensed

California attorney employed by CJP.

All claims for money damages against Defendants Simi and Battson in their

official capacities were previously dismissed with prejudice, because such claims

are barred by the Eleventh Amendment. Order [Doc. 88] at 8. In order to avoid the

Eleventh Amendment, Plaintiffs argue they bring personal-capacity claims against

Defendants. However, Plaintiffs have failed to make the requisite showing.

It takes more than a general averment that Defendants engaged in bad acts in

their personal capacities. Specific factual allegations are required. Omnibus Mot.

[ECF 131] at 12. See Ricotta v. California 4 F. Supp. 2d 961, 976 (leave to amend

to name chairperson of CJP denied because all claims against chairperson would be

barred by the Eleventh Amendment). See also, Junho Hyon v. Sei Shimoguchi, No.

CIV 12-1235 JAM EFB PS, 2012 U.S. Dist. LEXIS 74100 at *5 (E.D. Cal. May 29,

2012) (allegations against CJP attorney supported only official-capacity claim and

thus barred by Eleventh Amendment); Borchardt v. Reid, No. CV 08-3086 DOC,

2008 U.S. Dist. LEXIS 91363 at *8-9, 2998 WL 4810791 *3 (C.D. Cal. Oct. 31,

2008) (same as to director-chief counsel of CJP).2

2 It is not clear whether Plaintiffs seek injunctive relief as to Defendants Simiand Battson. However, any such claims would not be cognizable. “To prevail on arequest for injunctive relief, the moving party must either show a likelihood ofsuccess on the merits and the possibility of irreparable injury, or demonstrate thatserious questions are raised and the balance of hardships tips sharply in themovant’s favor.” Kirkland v. Sheriff, No. CIV S-07-1124 WBS DAD, 2008 U.S.Dist. LEXIS 91671 at *13, 2008 WL 4826122 at *4 (N.D. Cal. Nov. 4, 2008)(denying request for injunctive relief against CJC). Moreover, the Supreme Court’s“decisions consistently hold that a citizen lacks standing to contest the policies ofthe prosecuting authority when he himself is neither prosecuted nor threatened withprosecution.” Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973). In short,Plaintiffs cannot use this action to force Defendants Simi and/or Battson to take anyparticular action.


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II. ABSOLUTE IMMUNITY UNDER CALIFORNIA CONSTITUTION

Defendants Simi and Battson have absolute constitutional immunity from

claims brought under California law.

CAL. CONST. ART. VI, § 18(H) provides as follows:

Members of the commission, the commission staff, and the examinersand investigators employed by the commission shall be absolutelyimmune from suit for all conduct at any time in the course of theirofficial duties.

Section 18(h) was enacted by the California voters in 1994 as part of

Proposition 190. Recorder v. Comm'n on Judicial Performance, 72 Cal. App. 4th

258, 263 (1999). Section 18(h) makes clear that Defendants Simi and Battson

“cannot be sued for any act undertaken in the course of their official duties.”

Recorder, 72 Cal. App. 4th at 267. Plaintiffs cannot avoid immunity by simply

proclaiming that Defendants engaged in ultra vires conduct. As with their attempt

to avoid Eleventh Amendment immunity, Plaintiffs fail to allege specific facts

showing the conduct of Defendants was outside the course of their official duties.

CONCLUSION

In addition to all grounds raised in the Omnibus Motion to Dismiss, Plaintiffs

fail to state facts sufficient to avoid immunity under the Eleventh Amendment and

immunity under the California Constitution.

Dated: April 9, 2014 Respectfully submitted,

KAMALA D. HARRISAttorney General of California

s/Richard F. WolfeRICHARD F. WOLFESupervising Deputy Attorney GeneralAttorneys for DefendantsLawrence J. Simi, and Brad Battson

SD201370598270852420.doc


- 1 -POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT

13-cv-1944 CAB (BLM)

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Heather L. Rosing, Bar No. 183986Daniel S. Agle, Bar No. 251090Kyle T. Overs, Bar No. 286158KLINEDINST PC501 West Broadway, Suite 600San Diego, California 92101(619) 239-8131/FAX (619) [email protected]@[email protected]

Attorneys for DefendantMARILYN BIERER d.b.a. BIERERAND ASSOCIATES, erroneously suedas BIERER AND ASSOCIATES, aCalifornia Professional Corporation



CALIFORNIA COALITION FORFAMILIES AND CHILDREN., aDelaware Public BenefitCorporation, and COLBERN C.STUART, an individual,,

Plaintiffs,

v.

SAN DIEGO COUNTY BARASSOCIATION, a CaliforniaCorporation, et al.,

Defendants.

Case No. 13-cv-1944 CAB (BLM)

POINTS AND AUTHORITIES INSUPPORT OF MOTION TO DISMISSFIRST AMENDED COMPLAINT

Date: June 6, 2014Time: 2:00 p.m.Courtroom: 4CJudge: Cathy Ann BencivengoMagistrate Judge: Barbara L. MajorComplaint Filed: August 20, 2013Trial Date: None set

[NO ORAL ARGUMENT UNLESSREQUESTED BY THE COURT]

Defendant Marilyn Bierer d.b.a. Bierer and Associates, erroneously sued as

BIERER AND ASSOCIATES, a California Professional Corporation (“Bierer”),

respectfully submits the following memorandum of points and authorities in

support of her Motion to Dismiss the First Amended Complaint filed by Plaintiffs

///

///

///




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California Coalition for Families and Children (“CCFC”) and Colbern C. Stuart

(“Stuart”) (collectively, “Plaintiffs”).1

Bierer herein joins and incorporates sections I, II, III, IV, and VI of

Defendants’ Omnibus Motion to Dismiss Plaintiffs’ First Amended Complaint.2

The following points and authorities are meant to supplement that Omnibus Brief.

I. INTRODUCTION

Plaintiffs’ approximately 1,500 page First Amended Complaint (FAC) is a

nearly incomprehensible rambling of legal conclusions, excessive acronyms, and

definitional phrasings that requires the now 59 defendants and the Court to attempt

to “fish a gold coin from a bucket of mud.” U.S. v. Lockheed-Martin Corp, 328

F.3d 374, 379 (7th Cir. 2003). The FAC not only fails to make cognizable factual

allegations against Bierer, it fails to even bring forth a plausible theory for

recovery. Furthermore, most, if not all, of Plaintiffs’ claims are time-barred by the

applicable statutes of limitations. Additionally, the FAC smacks with concerns of

Plaintiffs’ standing to request the relief he seeks. Accordingly, the Court should

grant Bierer’s motion to dismiss without leave to amend.

II. ARGUMENT

A. Dismissal is appropriate as the First Amended Complaint does

not meet Federal Rule of Civil Procedure 8’s requirements of a

short and plain statement that rises to the level of plausibility.

Bierer herein incorporates the arguments made in sections II and VI of

Defendants’ Omnibus Motion to Dismiss Plaintiffs’ First Amended Complaint.

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

1 It is of note that Lexevia, PC (“Lexevia”) appears to no longer be a party tothis action, yet Lexevia is still referenced throughout the First Amended Complaintand its exhibits.

2 Bierer joins and incorporates the arguments of section IV in so much thatPlaintiffs’ lack jurisdiction under FRCP 12(b)(1) and to any extent that Plaintiffsallege that Bierer is somehow responsible for orders and judgments that Plaintiffstake issue with.




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Although for the purposes of a motion to dismiss a court must take all of the

factual allegations in the complaint as true, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A “pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.’” Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)).

Furthermore, all civil complaints must state claims that rise beyond

speculation, to a level of plausibility. Ashcroft, supra, 556 U.S. at 679, 684. The

task of determining plausibility requires a “court to draw on its judicial experience

and common sense” in determining whether well-pled facts “permit the court to

infer more than the mere possibility of misconduct.” Id. at 679. Failure to do so

results in a complaint alleging, but not showing, that the pleader is entitled to relief

under Federal Rule of Civil Procedure 8(a)(2). Id.

As Plaintiffs fail to allege anything but unsupported conclusions against

Bierer, the FAC should be dismissed. Indeed, the only arguably factual allegations

against Bierer in the entire FAC appear to be: (1) her alleged activities involving

an April 15, 2010 San Diego County Bar Association event; and (2) her

representation of Stuart’s ex-wife in a divorce proceeding in 2007. (FAC ¶¶ 237-

250, 1007-1008.) In addition to not rising to the level of stating a claim against

Bierer, these allegations are also clearly barred by the applicable statutes of

limitation (as discussed further in section B of this motion).

That said, assuming, arguendo, that the allegations against Bierer are

considered factual in nature, the FAC still fails to rise to the level of plausibility.

Although difficult to discern, it appears that the crux of the FAC boils down to: 1)

Colbern Stuart was arrested at a family law seminar hosted by the San Diego

County Bar Association in April 2010 (Request for Judicial Notice (RJN), Exs. A,

B, C); and 2) the “family law system” is a massive conspiracy set out to violate




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Plaintiffs’ rights. As none of these allegations meet the plausibility standard laid

out by the Supreme Court in Bell Atlantic Corp. and Ashcroft, dismissal is

appropriate.

In Ashcroft, the Supreme Court found that dismissal of an action was

appropriate as the plaintiff’s complaint lacked “factual content to ‘nudg[e]’ his

claim of purposeful discrimination ‘across the line from conceivable to plausible.’”

Id. 683 (quoting Bell Atlantic Corp., supra, 550 U.S. at 570).

Here, the FAC lacks any factual content necessary to even approach the line

of plausibility, much less nudge the claims across the line from conceivable to

plausible. Plaintiffs allege that everyone and anyone involved in the family law

process is part of a grandiose scheme against them and their rights. Put simply,

there are no factual allegations in the FAC to support this contention against any of

the defendants, let alone Bierer. The lack of factual allegations aside, the alleged

“scheme” and “conspiracy” against Plaintiffs is so implausible as to borderline on

ludicrous. Instead, a much more likely explanation is that Plaintiffs, including

Colbern Stuart, had poor experiences with the “family law system,” and now hold

a grudge against the system as a whole.

B. The First Amended Complaint’s claims relating to the “Stuart

Assault” and Bierer’s professional duties are barred by the

applicable statutes of limitations.

Bierer herein incorporates the arguments made in section III of Defendants’

Omnibus Motion to Dismiss Plaintiffs’ First Amended Complaint.

Additionally, the FAC’s claims relating to the “Stuart Assault” and Bierer’s

professional duties should be dismissed as they are barred by the applicable

statutes of limitations. Plaintiffs’ claims brought under Sections 1983 and 1985

fall under California’s applicable statute of limitations. Usher v. City of Los

Angeles, 828 F.2d 556, 558 (9th Cir. 1993); Taylor v. Regents of Univ. of Cal., 993

F.2d 710, 711-12 (9th Cir. 1993). In California, the statute of limitations for




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personal injury claims is two years. Cal. Code Civ. Proc. § 335.1. The statute of

limitations for any claim against an attorney arising from professional services,

other than fraud, is one year. Cal. Code Civ. Proc. § 340.6.

Here, Plaintiffs assert multiple claims against Bierer relating to the “Stuart

Assault.” 3 These claims are therefore governed by California’s personal injury

statute of limitations. As the alleged assault took place on April 15, 2010,

Plaintiffs had to file their Complaint by April 15, 2012. Instead, the original

Complaint in this action was filed on August 20, 2013. All of Plaintiffs’ causes of

action relating to the “Stuart Assault” are therefore barred by the statute of

limitations.

Any claims that are brought against Bierer for allegedly breaching her

professional duties are also time-barred. (See FAC ¶¶ 904-907.) As Bierer is an

attorney, any alleged breach falls under the legal malpractice statute of limitations

of one year. The only directly attributable allegations against Bierer are that she

was involved somehow in the coordination of the “Stuart Assault” and that she

represented Stuart’s ex-wife in a 2007 divorce proceeding. (FAC ¶¶ 237-250,

1007-1008.) Given that this representation of Stuart’s ex-wife took place in 2007

and that the alleged assault took place on April 15, 2010, the statute of limitations

had long run before Plaintiffs’ original Complaint was filed on August 20, 2013.

As such, any claims relating to Bierer’s professional duties are also barred by the

statute of limitations.

C. The First Amended Complaint’s claim relating to the Lanham

Act fails to state a claim upon which relief can be granted.

Bierer herein incorporates the arguments made in sections II and VI(B) of


3 As it is difficult to discern what claims are actually being made against Bierer,reference is made to all claims. That said, it appears the FAC brings Counts 1, 2,9, 10, 12, 13, 15, and RICO counts 2, 3, 5, 6, 7, 8, 9, 10, and 11 against Bierer.Since all of these Counts appear to relate to the “Stuart Assault,” they are all time-barred.




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Further, the FAC’s claim relating to the Lanham Act (Count 15) should be

dismissed as it fails to state a claim upon which relief can be granted. There are no

factual allegations against Bierer as to what words, terms, names, symbols, and

devices were used by Bierer and how they were false or misleading; rather,

Plaintiffs’ rely solely on generalized conclusions and the recitation of the elements

of a Lanham Act claim. (FAC ¶¶ 904-914.) There are also no factual allegations

as to how Plaintiffs compete in the same marketplace as Bierer. This is not

surprising given that Plaintiffs do not compete in the same “family law industry” as

Bierer. (See FAC, Ex. 24, stating that Stuart practices intellectual property law;

RJN, Exs. D, E, F showing that Stuart is disbarred not only in California, but also

Arizona and Nevada.4) As such, dismissal of Count 15 against Bierer is

appropriate.

D. The First Amended Complaint fails to allege any RICO violations

by Bierer.

Bierer herein incorporates the arguments made in sections II and VI(C) of


The FAC fails to state a claim for RICO violations against Bierer as it fails

to bring forth any factual allegations involving Bierer. 18 U.S.C. 1962(c) makes it

unlawful for a person associated with a RICO enterprise that is “engaged in, or the

activities which affect, interstate or foreign commerce, to conduct or

participate…in the conduct of such enterprise’s affairs through a pattern of

racketeering activity.” 18 U.S.C. 1962(d) makes it unlawful to conspire to commit

a violation of 18 U.S.C. 1962(c). Further, civil RICO claims must show: “(1) the

existence of a RICO ‘enterprise’; (2) the existence of a ‘pattern of racketeering

activity’; (3) a nexus between the defendant and either the pattern of racketeering

activity or the RICO ‘enterprise’; and (4) resulting injury to plaintiff, in his

4 It is certainly not lost on Bierer that the First Amended Complaint, signed byColbern Stuart, contains flat-out lies about Stuart being a licensed attorney inCalifornia, Arizona, and Nevada. (FAC ¶ 3, Ex. 24.)




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‘business or property.’” Occupational-Urgent Health Sys., Inc. v. Sutro & Co.,

711 F.Supp. 1016, 1021 (E.D. Cal. 1989). To satisfy the RICO pattern

requirement, a plaintiff must plead two or more predicate acts with specificity,

while identifying the individual actions of each defendant sufficient to constitute a

pattern of racketeering activity. Blake v. Dierdorff, 856 F.2d 1365, 1370 (9th Cir.

1988).

Here, the FAC fails to state any specific facts regarding the alleged predicate

acts of Bierer. In fact, the only references to actions by Bierer are found in a count

that Plaintiffs’ do not bring against Bierer. (FAC ¶¶ 1007-1008.) As such, all of

the RICO claims against Bierer fail to state a claim upon which relief can be

granted.

Further, Plaintiffs’ RICO claims fail as they do not make factual allegations

regarding the effect the alleged racketeering activities have on interstate and

foreign commerce. In the Ninth Circuit, the determination of interstate or foreign

commerce for the purpose of RICO is as strict as that for the purpose of the

Sherman Act. Musick v. Burke, 913 F.2d 1390, 1398 (9th Cir. 1990). Under this

standard, local activities that “have incidental effects on interstate commerce” do

not meet the interstate or foreign commerce requirement of a RICO claim. Id. The

plaintiff must therefore make a showing of a substantial effect on interstate or

foreign commerce by the defendants’ activities. Id. at 1395. In Musick, the Court

found that the interstate requirement was not met even though defendants

purchased the majority of their products through interstate commerce. Id. at 1397.

Here, there are no factual allegations that Bierer or any of her alleged RICO

enterprise “members” are involved in any racketeering activities outside of the

state of California. In fact, it appears that all allegations relate to activities that

///




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took place in the San Diego, California area.5 As such, the FAC also fails to state a

claim under 18 U.S.C. 1962(d).

E. Plaintiffs lack standing to assert any claims for prospective relief.

Plaintiffs cannot bring claims for prospective relief as they lack standing.

To declare injunctive or declaratory relief, a plaintiff must show both that: 1) he

has suffered or is threatened with a “concrete and particularized” legal harm; and

2) a “sufficient likelihood that he will again be wronged in a similar way.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); City of Los Angeles v. Lyons,

461 U.S. 95, 111 (1983). As such, “[t]o obtain injunctive relief, a reasonable

showing of a sufficient likelihood that plaintiff will be injured again is necessary.”

Kruse v. Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and

alterations omitted). A mere interest in the faithful execution of the Constitution or

other laws, “undifferentiated” from the public at large, is not sufficient to show

standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106 (1998).

At the end of their FAC, Plaintiffs assert a claim for prospective relief

against all defendants, including asking the Court to enjoin defendants from further

alleged violations of Plaintiffs’ rights. (FAC ¶¶ 1197, 1202-1203.) Similar to

Plaintiffs’ conclusory allegations of prior violations of their rights by Bierer, is the

absence of any factual allegations by Plaintiffs that they are likely to suffer future

injury. Plaintiffs’ desires to have this country’s laws and Constitution upheld,

while at least facially noble, are not enough to show standing. Indeed, a plaintiff

seeking injunctive relief “must demonstrate a real or immediate threat that

defendants will again subject him to [the harm complained of].” B.C. v. Plumas

5 In an attempt to overcome these solely local activities, Plaintiffs rely on theimplausible assertions that these “RICO enterprises” are involved in interstate andforeign commerce as domestic violence orders may be enforced in other states,child support can be enforced in other countries by revoking passports, childsupport awards can be enforced in U.S. Military Courts, and family affairs is aworldwide industry. (FAC ¶ 962.) If these allegations were enough to establishinterstate or foreign commerce, every single action by any person would constituteinterstate or foreign commerce because one of the actors could potentially move toa different state or country.




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Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The FAC fails to make

any such allegation. As such, Plaintiffs lack standing to bring this action and it

should be dismissed.

III. CONCLUSION

Based on the foregoing reasons, as well as those expressed in Defendants’

Omnibus Motion to Dismiss, Bierer respectfully requests the Court dismiss

Plaintiffs’ First Amended Complaint with prejudice.

DATED: April 10, 2014

KLINEDINST PC

By: s/ Daniel S. AgleHeather L. RosingDaniel S. AgleKyle T. OversAttorneys for DefendantMARILYN BIERER d.b.a. BIERERAND ASSOCIATES, erroneouslysued as BIERER AND ASSOCIATES,a California Professional Corporation

15869676v1


DEFENDANTS AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTEAND ROBERT

O’BLOCK NOTICE OF JOINDER IN AND SUPPLEMENT TO DEFENDANTS’ OMNIBUS MOTION TO

DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

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Thomas Schafbuch (Pro Hac Vice Appearance) American College of Forensic Examiners Institute 2750 E Sunshine St Springfield, MO, 65807 Tel: 417-881-3818 Fax: 417-881-4702 E-Mail: [email protected] Gregory P. Goonan (Cal. Bar #119821) The Affinity Law Group APC 5755 Oberlin Drive, Suite 301 San Diego, CA 92121 Tel: 858-750-1615 Fax: 619-243-0088 E-Mail: [email protected] Attorneys for Defendants American College of Forensic Examiners Institute and Robert L. O’Block



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, a Delaware public benefit corporation; and Colbern C. Stuart, an individual

Plaintiff,

vs. SAN DIEGO COUNTY BAR ASSOCIATION, a California corporation; et al.,

Defendant.

Case No. 3:13-cv-01944-CAB-BLM DEFENDANTS AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTE AND ROBERT O’BLOCK NOTICE OF JOINDER IN AND SUPPLEMENT TO DEFENDANTS’ OMNIBUS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Date: June 6, 2014 Time: 2:00 p.m. Ctrm: 4C Judge: Cathy Ann Bencivengo Complaint Filed: August 20, 2013 [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]


mailto:[email protected]

https://owa.mgmtexec.com/owa/redir.aspx?C=2b8ce9f489624901a488435fa0ebbbab&URL=https%3a%2f%2fecf.casd.uscourts.gov%2fcgi-bin%2fDktRpt.pl%3f422127

____________________________________________________________________________________________

DEFENDANTS AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTE AND ROBERT



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TO THE COURT, THE PARTIES HERETO AND THEIR ATTORNEYS OF

RECORD:

A. Joinder in Defendants’ Omnibus Motion To Dismiss

PLEASE TAKE NOTICE that defendants American College of Forensic

Examiners Institute (“ACFEI”) and Robert O’Block (“O’Block”) join in the

omnibus Motion to Dismiss Plaintiff’s First Amended Complaint (the “Omnibus

Motion to Dismiss”) filed by defendant San Diego County Bar Association’s

pursuant to the court’s order [Doc. 107]. For all of the reasons set forth and

explained in detail in the Omnibus Motion to Dismiss, and the Memorandum of

Points and Authorities, the Declaration of Stephen D. Lucas, and the Request for

Judicial Notice filed in support of the Omnibus Motion to Dismiss, the entire First

Amended Complaint, and each and every purported cause of action alleged therein,

should be dismissed with prejudice as to ACFEI and O’Block.

Specifically, as explained in detail in the Omnibus Motion to Dismiss and

supporting documents, the First Amended Complaint, and each and every purported

cause of action alleged therein, should be dismissed with prejudice against ACFEI

and O’Block for the following reasons:

1. The First Amended Complaint, and each and every purported cause of

action alleged there, should be dismissed with prejudice as to ACFEI and O’Block

because the First Amended Complaint, and each purported cause of action alleged


____________________________________________________________________________________________




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therein, violates Rule 8(a) of the Federal Rules of Civil Procedure for the reasons

explained in the Omnibus Motion to Dismiss.


action alleged therein, should be dismissed with prejudice as to ACFEI and O’Block

because the First Amended Complaint, and each purported cause of action alleged

therein, violates Rule 8(e) of the Federal Rules of Civil Procedure for the reasons

explained in the Omnibus Motion to Dismiss.

3. All purported fraud and fraud-based causes of action, as well as the

purported RICO cause of action, in the First Amended Complaint should be

dismissed with prejudice because the First Amended Complaint does not comply

with the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure

for the reasons explained in the Omnibus Motion to Dismiss.



pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Plaintiffs

violated Rule 8(a), 8(e), 9(b), orders of this Court, and court rules in filing the First

Amended Complaint for the reasons explained in the Omnibus Motion to Dismiss.



because each and every purported cause of action in the First Amended Complaint is


____________________________________________________________________________________________




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barred by the applicable statute of limitations as explained in the Omnibus Motion

to Dismiss.


action based in whole or in part on a supposed violation of 42 U.S.C. § 1983

(ACFEI and O’Block cannot tell exactly which claims are brought in whole or in

part under 42 U.S.C. § 1983), should be dismissed with prejudice as to ACFEI and

O’Block because neither ACFEI or O’Block is a “state actor” as required under 42

U.S.C. § 1983.

7. The purported cause(s) of action for violation of Lanham Act section 42(a)

(15 U.S.C. § 1125(a)) should be dismissed with prejudice as to ACFEI and O’Block

for the reasons discussed in the Omnibus Motion to Dismiss.

8. All of the purported RICO claims should be dismissed with prejudice as to

ACFEI and O’Block because Plaintiffs have not come close to properly pleading

RICO claims for the reasons alleged in the Omnibus Motion to Dismiss.

B. Additional Reasons Why The First Amended Complaint Should Be

Dismissed With Prejudice As To ACFEI and O’Block

The First Amended Complaint, and each and every purported cause of action

alleged therein, should be dismissed with prejudice as to ACFEI and O’Block for


____________________________________________________________________________________________




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the following separate and additional reasons:

1. No Damages Allegations: The First Amended Complaint does not allege

any specific injury or damages that are, or can be, coherently linked directly or

indirectly to either O’Block or ACFEI. Hence, ACFEI and O’Block cannot prepare

an answer to the First Amended Complaint given that it is completely devoid of

substance and the requisite damages allegations.

2. No Personal Jurisdiction: The First Amended Complaint, and each and

every purported cause of action alleged therein, should be dismissed with prejudice

as to ACFEI and O’Block pursuant to Rule 12(b)(2) of the Federal Rules of Civil

Procedure because neither ACFEI nor O’Block is subject to personal jurisdiction

before this Court. Plaintiffs have not alleged any facts whatsoever, much less

sufficient facts, to show that either ACFEI or O’Block is subject to personal

jurisdiction before this Court. ACFEI and O’Block specifically assert, and do not

waive, lack of personal jurisdiction as an affirmative defense to the First Amended

Complaint. [See Fed.R.Civ.Proc. 12(h)(1)(B)(2).]

3. No Venue: The First Amended Complaint, and each and every purported

cause of action alleged therein, should be dismissed with prejudice as to ACFEI and

O’Block pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure because

neither ACFEI nor O’Block is subject to venue in this judicial district. Plaintiffs

have not alleged any facts whatsoever, much less sufficient facts, to show that either


____________________________________________________________________________________________




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ACFEI or O’Block is subject to venue in this judicial district. ACFEI and O’Block

specifically assert, and do not waive, improper venue as an affirmative defense to

the First Amended Complaint. [See Fed.R.Civ.Proc. 12(h)(1)(B)(2).]

DATED: April 10 2014

By: /s/ Thomas Schafbuch Thomas Schafbuch Attorneys for Defendants

American College of Forensic Examiners Institute and Robert O’Block


____________________________________________________________________________________________




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PROOF OF SERVICE

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

address is 2750 E Sunshine St. Springfield, MO, 65807. A true and correct copy of

the foregoing document described as:

NOTICE OF JOINDER OF DEFENDANTS’ OMNIBUS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

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 the ECF/CM

System on the Electronic Mail List to receive electronic service in this matter. I

declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct.

Dated April 10, 2014 at Springfield, Missouri

/s/ Thomas Schafbuch Thomas Schafbuch









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25508.00086\8697610.1

SUPPLEMENTAL MEM. OF P. & A. IN SUPP. OFMOT. TO DISMISS FIRST AM. COMPL.

13-cv-1944-CAB (BLM)

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JAMES B. GILPIN, Bar No. [email protected] L. GREEN, Bar No. [email protected] BEST & KRIEGER LLP655 W. Broadway, 15th FloorSan Diego, CA 92101Telephone: (619) 525-1300Facsimile: (619) 233-6118

Attorneys for DefendantsSUPERIOR COURT OF CALIFORNIA, COUNTYOF SAN DIEGO (erroneously sued as SUPERIORCOURT OF SAN DIEGO COUNTY); HON.ROBERT J. TRENTACOSTA, Presiding Judge ofthe Superior Court (erroneously sued as Robert J.Trentacosta); MICHAEL M. RODDY, ExecutiveOfficer of the Superior Court; JUDICIALCOUNCIL OF CALIFORNIA; HON. STEVENJAHR, Administrative Director of the Courts;ADMINISTRATIVE OFFICE OF THE COURTS;HON. TANI G. CANTIL-SAKAUYE, Chief Justiceof California; HON. LISA SCHALL, Judge of theSuperior Court; HON. LORNA A. ALKSNE, Judgeof the Superior Court; HON. CHRISTINE K.GOLDSMITH, Judge of the Superior Court; HON.JEANNIE LOWE, Commissioner of the SuperiorCourt (Ret.); HON. WILLIAM H. McADAM, JR.,Judge of the Superior Court; HON. EDLENE C.McKENZIE, Commissioner of the Superior Court;HON. JOEL R. WOHLFEIL, Judge of the SuperiorCourt; HON. MICHAEL GROCH, Judge of theSuperior Court; and KRISTINE P. NESTHUS



CALIFORNIA COALITION FORFAMILIES AND CHILDREN, et al.,

Plaintiffs,

v.

SAN DIEGO COUNTY BARASSOCIATION, et al.,

Defendants.

Case No. 13-cv-1944-CAB (BLM)Judge: Hon. Cathy Ann Bencivengo

JUDICIAL DEFENDANTS’SUPPLEMENTAL MEMORANDUMOF POINTS AND AUTHORITIES INSUPPORT OF OMNIBUS MOTION TODISMISS FIRST AMENDEDCOMPLAINT

Date: June 6, 2014Time: 2:00 p.m.Courtroom: 4C

[NO ORAL ARGUMENT UNLESSREQUESTED BY COURT]


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25508.00086\8697610.1 -1-SUPPLEMENTAL MEM. OF P. & A. IN SUPP. OF

MOT. TO DISMISS FIRST AM. COMPL.13-cv-1944-CAB (BLM)

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The Judicial Defendants1 respectfully submit the following supplemental

memorandum of points and authorities in support of the omnibus motion to dismiss

the First Amended Complaint (“FAC”) filed by Plaintiffs California Coalition for

Families and Children and Colbern C. Stuart (“Stuart”) (collectively, “Plaintiffs”)

pursuant to the Court’s Order Setting Briefing Schedule. (Doc. No. 107.)

I.

INTRODUCTION

On March 28, 2014, pursuant to the Court’s Order Setting Briefing Schedule,

Defendant San Diego County Bar Association (“Bar Association”) filed an omnibus

motion to dismiss the FAC on numerous grounds. (Doc. No. 131.) Among other

grounds, the omnibus motion seeks dismissal of the FAC on the following grounds:

1. Plaintiffs failed to comply with the pleading standards set forth in Rules 8

and 9 of the Federal Rules of Civil Procedure;

2. Plaintiffs’ claims relating to the April 15, 2010 Bar Association seminar,

which Plaintiffs admit is a “central subject of this litigation,” are barred by

the statute of limitations;

3. Plaintiffs’ claims challenging various court orders are barred by the Rooker-

Feldman doctrine;

4. Plaintiffs’ claims against the state or arms of the state are barred by the

Eleventh Amendment;

1 The Judicial Defendants consist of (1) the Superior Court of California, County of SanDiego, erroneously sued as Superior Court of San Diego County (“Superior Court”), (2) theHonorable Robert J. Trentacosta, Presiding Judge of the Superior Court, erroneously sued asRobert J. Trentacosta, (3) Michael M. Roddy, Executive Officer of the Superior Court, (4)Judicial Council of California, (5) the Honorable Steven Jahr, Administrative Director of theCourts, (6) Administrative Office of the Courts, (7) the Honorable Tani G. Cantil-Sakauye, ChiefJustice of California, (8) the Honorable Lisa Schall, Judge of the Superior Court, (9) theHonorable Lorna A. Alksne, Judge of the Superior Court, (10) the Honorable Christine K.Goldsmith, Judge of the Superior Court, (11) the Honorable Jeannie Lowe, Commissioner of theSuperior Court (Ret.), (12) the Honorable William H. McAdam, Jr., Judge of the Superior Court,(13) the Honorable Edlene C. McKenzie, Commissioner of the Superior Court, (14) theHonorable Joel R. Wohlfeil, Judge of the Superior Court, (15) the Honorable Michael Groch,Judge of the Superior Court, and (16) Kristine P. Nesthus, the Superior Court’s Director of LegalServices and General Counsel.


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5. Plaintiffs’ civil rights claims under 42 U.S.C. § 1983 fail to state a claim

against several of the defendants on the basis that they are not state actors;

6. Plaintiffs’ false advertising claim under the Lanham Act fails to state a claim

because Plaintiffs have not and cannot satisfy the competition element for

such claims; and

7. Plaintiffs fail to state any facts that would support a violation of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”).

While the foregoing grounds require dismissal of the action with prejudice, the

purpose of this supplemental memorandum is to advance those additional grounds

supporting dismissal of the action as against the Judicial Defendants.

II.

ARGUMENT

A. COUNT 3 OF THE FAC FAILS TO STATE FACTSSUFFICIENT TO STATE A CLAIM AGAINST ANY JUDICIALDEFENDANTS

Count 3 of the FAC alleges Section 1983 claims against Judges Goldsmith

and Groch, among others, relating to Stuart’s criminal prosecution for stalking in

People v. Stuart, Superior Court of California, County of San Diego, Case No.

M104094DV. (FAC ¶¶ 349-508.) Count 3 alleges that Judge Goldsmith, as a

Family Court judge and the wife of City Attorney Jan Goldsmith, was somehow

involved with initiating criminal proceedings against Stuart on March 24, 2010.

(FAC ¶¶ 373-378, 381, 486-489.) Count 3 also challenges any “non-immune” acts

of Judge Groch in connection with his handling of the criminal action against

Stuart. (FAC ¶¶ 350, 402-403, 417-419, 425, 443-446, 491-497.) Count 3 fails to

state facts sufficient to state any claims against Judges Goldsmith and Groch.

1. Count 3 Does Not State Facts Sufficient To State A ClaimAgainst Judge Goldsmith And Is Otherwise Untimely.

The FAC fails to allege that any conduct by Judge Goldsmith violated any

rights secured by the Constitution or federal laws, let alone that Judge Goldsmith


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caused the deprivation of such rights. Long v. County of Los Angeles, 442 F.3d

1178, 1185 (9th Cir. 2006) (§ 1983 claims require plaintiff to show “that a right

secured by the Constitution or the laws of the United States was violated”); Estate

of Brooks v. U.S., 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a

required element of a § 1983 claim”). The claims against Judge Goldsmith are also

barred by the two-year statute of limitations that governs Section 1983 actions, as

such claims began to accrue on March 24, 2010. (Doc. No. 131-1 at 9:12-17.)

2. Judge Groch Is Immune From The Claims In Count 3.

As to the claims against Judge Groch, all of which arise out of his presiding

over Stuart’s criminal action, they are barred by the doctrine of judicial immunity.

Judges are generally immune from civil liability for damages for acts performed in

their judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam); Mullis

v. United States Bankr. Ct., 828 F.2d 1385, 1394 (9th Cir. 1987); Ashelman v.

Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). An act is “judicial” for

purposes of judicial immunity where it is a function normally performed by a judge

and the plaintiff dealt with the judge in his or her judicial capacity. Stump v.

Sparkman, 435 U.S. 349, 362 (1978).

Judicial immunity applies even where a judge is accused of acting in bad

faith, maliciously, corruptly, erroneously, or in excess of jurisdiction. Mireles, 502

U.S. at 11-13; Stump,435 U.S. at 356; Gjurovich v. Cal., 10-cv-01871, 2010 U.S.

Dist. LEXIS 118797, at *7 (E.D. Cal. Oct. 26, 2010). Judicial immunity is not

limited to suits for damages, “but extends to actions for declaratory, injunctive and

other equitable relief.” Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996).

While the FAC acknowledges that Count 3 identifies immune acts, Plaintiffs

attempt to limit Count 3 to only “the non-immune acts.” (FAC ¶¶ 350, 491.) The

FAC, however, fails to identify any acts of Judge Groch beyond those exercised in

his judicial capacity. Accordingly, the claims against Judge Groch in Count 3 are

clearly barred by the doctrine of judicial immunity.


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B. COUNT 4 OF THE FAC DOES NOT AND CANNOT STATE ACOGNIZABLE CLAIM AGAINST ANY JUDICIALDEFENDANTS

Count 4 of the FAC alleges claims for “obstruction of justice” against a

group identified as the “Nesthus Defendants,” which includes Ms. Nesthus, the

Superior Court’s Director of Legal Services and General Counsel, Mr. Roddy, the

Superior Court’s Executive Officer, and Judges Trentacosta, Alksne, Wohlfeil,

Schall, Goldsmith, McAdam, and Groch, and Commissioners Lowe and McKenzie.

(FAC ¶¶ 509-550.) As referenced in the omnibus motion, (Doc. No. 131-1 at 5:25-

6:2), Count 4 arises out of Plaintiffs’ inclusion of residential addresses of judicial

officers in the original Complaint, Plaintiffs’ posting of the same on the Internet,

and Ms. Nesthus’ demands that such information be removed from the Internet and

that steps be taken to remove the information from PACER. (FAC ¶¶ 510-526.)

Plaintiffs’ “obstruction of justice” claims in Count 4 are subject to dismissal

on numerous grounds. First, Plaintiffs lack standing to assert such claims because

there is no private cause of action for obstruction of justice. Womack v. Metro.

Transit Sys., 09cv2679, 2010 U.S. Dist. LEXIS 41739, at *1-2 (S.D. Cal. Apr. 28,

2010) (Moskowitz, J.). Second, Ms. Nesthus’ demands were entirely proper, as the

posting of home addresses on the Internet violates California Government Code

section 6254.21, and the inclusion of such information in court filings violates

Section 1(h)(5) of the Court’s General Order 550. Finally, Ms. Nesthus’

communications are protected by California’s litigation privilege, which applies to

“any communication (1) made in judicial or quasi-judicial proceedings; (2) by

litigants or other participants authorized by law; (3) to achieve the objects of the

litigation; and (4) that [has] some connection or logical relation to the action.”

Olsen v. Harbison, 119 Cal. Rptr. 3d 460, 466-67 (Ct. App. 2010); Cal. Civ. Code §

47. Count 4 of the First Amended Complaint therefore should be dismissed with

prejudice.

/ / /


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C. COUNT 6 OF THE FAC FAILS TO STATE FACTSSUFFICIENT TO STATE A CLAIM FOR SUPERVISORLIABILITY AGAINST ANY JUDICIAL DEFENDANTS

Without alleging any facts supporting their purported subordinates’

constitutional violations, Count 6 of the FAC asserts Section 1983 claims against

Judges Trentacosta, Alksne, and Jahr, Chief Justice Cantil-Sakauye, and Mr. Roddy

under a theory of supervisor liability. (FAC ¶¶ 666-684, 690-712.) Where liability

hinges on an alleged subordinate’s constitutional violation, there is no liability

where the subordinate commits no constitutional violation. Forrett v. Richardson,

112 F.3d 416, 421 (9th Cir. 1997). Moreover, a supervisor is not liable under

Section 1983 unless “there exists either (1) his or her personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” Hansen v. Black,

885 F.2d 642, 645-46 (9th Cir. 1989).

Given the FAC does not and cannot allege that any supervisor Judicial

Defendants were personally involved in any purported constitutional deprivation, or

that there is a causal connection between the supervisor Judicial Defendants’

actions and any alleged constitutional injury, Count 6 should be dismissed for

failure to state a claim. See, e.g., Freemanvibe v. Valley Arts and Science Academy,

12-cv-1727, 2013 U.S. Dist. LEXIS 49130, at *16-17 (E.D. Cal. Apr., 4, 2013).

D. COUNT 7 OF THE FAC AS AGAINST THE JUDICIALDEFENDANTS IS BARRED BY ELEVENTH AMENDMENTIMMUNITY

Count 7 of the FAC next seeks to impose Section 1983 “municipal liability”

against the Superior Court, Judicial Council, and Administrative Office of the

Courts (“AOC”). (FAC ¶¶ 719-742.) As set forth in the omnibus motion, the

Eleventh Amendment bars suits against a state or an arm of the state.2 (Doc. No.

2 Eleventh Amendment immunity also bars claims against judges and court employees intheir official capacities, as they are considered arms of the state. Simmons v. Sacramento CountySuperior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Oliver v. Placer Superior Court, 2:12-cv-2655, 2013 U.S. Dist. LEXIS 82627, at *9-10 (E.D. Cal. Jun. 10, 2013); Mahaley v. Mapes,EDCV 12-01896, 2013 U.S. Dist. LEXIS 65897, at * 19 (C.D. Cal. Apr. 16, 2013).


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131-1 at 12:2-12); see also Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.

1995).

Contrary to Plaintiffs’ legal conclusion that the entity Judicial Defendants are

“governments beneath the state level,” (FAC ¶ 714), it is well-established that such

entities are arms of the state and thus enjoy Eleventh Amendment immunity. Wolfe

v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004) (Judicial Council); Simmons v.

Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (superior

courts); Greater Los Angeles Council of Deafness, Inc. v. Zolin, 812 F.2d 1103,

1110 (9th Cir. 1987) (superior courts); Borchardt v. Reid, CV 08-3086, 2008 U.S.

Dist. LEXIS 91363, at *7-8 (C.D. Cal. Oct. 31, 2008 (AOC)). Accordingly, the

Court should dismiss the claims against the Superior Court, Judicial Council, and

AOC with prejudice under the Eleventh Amendment.

E. COUNTS 9 AND 10 OF THE FAC DO NOT AND CANNOTSTATE FACTS SUFFICIENT TO STATE A CLAIM UNDERSECTIONS 1985 AND 1986

Counts 9 and 10 of the FAC purport to assert claims under 42 U.S.C. §§

1985(1)-(3) and 1986 against a group labeled the “Color of Law Defendants.”

(FAC ¶¶ 764-801.) Section 1985(1) prohibits conspiracies to prevent a United

States officer from performing his or her duties. Canlis v. San Joaquin Sheriff’s

Posse Comitatus, 641 F.2d 711, 717 (9th Cir. 1981); see also Bretz v. Kelman, 773

F.2d 1026, 1027 n.3 (9th Cir. 1985). Section 1985(2) prohibits conspiracies to

intimidate parties, witnesses, or jurors in federal courts and interfere with the

administration of justice in state courts. Kush v. Rutledge, 460 U.S. 719, 724-25

(1983); Bretz, 773 F.2d at 1027 n.3. Section 1985(3) prohibits conspiracies to

deprive a person of the equal protection of the laws, to hinder state authorities from

securing equal protection of the laws, or to interfere with federal elections. Kush,

460 U.S. at 720-25; Bretz, 773 F.2d at 1027 n.3.

At a minimum, a claim under Section 1985 must allege that the defendants

conspired together and set forth a factual basis for the allegation of conspiracy; a


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mere allegation of conspiracy, without factual sufficiency, is insufficient. Karim-

Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988). Moreover,

to state a claim under Section 1985(2) and (3), the acts of the alleged conspirators

must be motivated by “some racial, or perhaps class-based, invidiously

discriminatory animus ….” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); RK

Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002); Portman v.

County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). A valid Section 1985

claim is also a prerequisite to claim under Section 1986, which “authorizes a

remedy against state actors who have negligently failed to prevent a conspiracy that

would be actionable under § 1985.” Cerrato v. San Francisco Cmty. Coll. Dist., 26

F.3d 968, 971 n.7 (9th Cir. 1994); Sekerke v. Kemp, 11cv2688, 2013 U.S. Dist.

LEXIS 35041, at *33 (S.D. Cal. Mar. 12, 2013) (Moskowitz, J.) (citing Karim-

Panahi, 839 F.2d at 626).

The principle flaw with Plaintiffs’ Section 1985 and 1986 claims is that the

FAC fails to allege facts with sufficient particularity showing a conspiracy

involving any Judicial Defendant. See Garcia v. Strayhorn, 13-cv-0907, 2013 U.S.

Dist. LEXIS 135998, at *3 (S.D. Cal. Sep. 23, 2013 (Benitez, J.). Plaintiffs’

conclusory allegation that the so-called “Color of Law Defendants” “conspired”

together is insufficient. The absence of such factual allegations, by itself, warrants

the dismissal of Plaintiffs’ Section 1985 and 1986 claims.

The specific allegations required to state a claim under Section 1985(1), (2),

and (3) are also absent from the FAC. “Section 1985(1)’s protections extend

exclusively to the benefit of federal officers.” Jacobson v. Pettersson, No. CV6-

1117, 2007 U.S. Dist. LEXIS 14952, at *19 (W.D. Wash. Mar. 2, 2007). While

Stuart describes himself as an “officer of the federal courts,” (FAC ¶¶ 768-769),

such characterizations do not render Stuart a federal officer for purposes of Section

1985(1). Jacobson, 2007 U.S. Dist. LEXIS 14952, at *19-20 (lawyer licensed to

practice in federal jurisdictions not a federal officer for purposes of Section


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1985(1)). Because Stuart does not and cannot allege he is an employee of the

federal government, or that he is authorized to perform any official federal duties,

the Section 1985(1) claim should be dismissed. Id.

As to Plaintiffs’ claims under 42 U.S.C. § 1985(2) and (3), the FAC must

allege facts showing that the Judicial Defendants deprived Plaintiffs of another right

with “invidiously discriminatory animus” based on their membership in a protected

class. Griffin, 403 U.S. at 102; see also Orin v. Barclay, 272 F.3d 1207, 1217 n.4

(9th Cir. 2001) (protected class extends beyond race “only when the class in

question can show that there has been a governmental determination that its

members require and warrant special federal assistance in protecting their civil

rights”). Aside from alleging membership in certain alleged “equal protection

classes,” (FAC ¶ 777), the FAC offers no factual allegations showing that any

Judicial Defendants acted with a discriminatory animus. See, e.g., Rosen v. Cmty.

Educ. Ctrs., Inc., CV-10-0584, 2010 U.S. Dist. LEXIS, at *7-9 (D. Ariz. Oct. 8,

2010) (rejecting Section 1985(3) claim based on gender discrimination).

F. COUNT 11 OF THE FAC IS BARRED BY THE ROOKER-FELDMAN DOCTRINE AND IS UNTIMELY

Count 11 of the FAC alleges Section 1983 claims against Judges Wohlfeil

and Schall arising out of their recommendation to use Dr. Stephen M. Doyne as the

mediator in Stuart’s dissolution proceeding. (FAC ¶¶ 808-888.) Not only is Count

11 barred by the Rooker-Feldman doctrine for the reasons set forth in the omnibus

motion, (Doc. No. 131-1 at 11:1-26), but Count 11 is also untimely. Given the

FAC alleges that the recommendation to use Dr. Doyne occurred on April 10, 2008,

and this action was filed on August 20, 2013, Count 11 is barred by the two-year

statute of limitations that applies to Section 1983 claims in California.

/ / /

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G. PLAINTIFFS LACK STANDING TO PURSUE PROSPECTIVERELIEF

Finally, the FAC asserts counts for prospective relief, which generally ask

that all defendants be enjoined from further violating Plaintiffs’ rights. (FAC ¶¶

1192-1203.) Notwithstanding Plaintiffs’ inability to establish past violations by

any Judicial Defendants, Plaintiffs lack standing to pursue prospective relief.

Article III requires that “federal courts take jurisdiction only over ‘definite

and concrete, not hypothetical or abstract’ cases and controversies.” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).

In the context of injunctive and declaratory relief, a plaintiff must show that he has

suffered or is threatened with a “concrete and particularized” legal harm, Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992), coupled with “a sufficient

likelihood that he will again be wronged in a similar way.” City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1983). “To have standing to seek injunctive relief,

[plaintiff] must demonstrate a real or immediate threat that defendants will again

subject him to [the harm complained of].” B.C. v. Plumas Unified Sch. Dist., 192

F.3d 1260, 1264 (9th Cir. 1999). An undifferentiated interest shared with the

public at large in the proper application of the Constitution or other laws is not

sufficient to show standing. Steel Co. v. Citizens for a Better Environment, 523

U.S. 83, 106 (1998) (“vindication of the rule of law” insufficient for Article III

standing).

Absent from the FAC are any allegations that Plaintiffs are likely to be

wronged in the future by any Judicial Defendants. Plaintiffs’ mere desire to

effectuate what they believe to be the proper application of the law is insufficient to

establish standing. Insofar as Stuart may claim that he may be subject to orders in

the future in his dissolution proceeding that he believes to be unlawful, not only is

there no “real or immediate threat” that such orders may be entered, but an attack

on such orders would clearly be barred by the Rooker-Feldman and Younger


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abstention doctrines. See, e.g., Doc. No. 11, Monteagudo v. Alksne, 11-CV-1089,

at 4:4-7:9, 8:2-21 (S.D. Cal. Sep. 6, 2011) (Gonzalez, J.) (dismissing with prejudice

civil rights action challenging legal standard used in making child custody

determinations on standing, Rooker-Feldman, and Younger abstention grounds).

III.

CONCLUSION

For the reasons set forth above and in the omnibus motion to dismiss, the

Court should dismiss the FAC without leave to amend.

Dated: April 10, 2014 BEST BEST & KRIEGER LLP

By: /s/ Matthew L. GreenJAMES B. GILPINMATTHEW L. GREENAttorneys for DefendantsSUPERIOR COURT OF CALIFORNIA,COUNTY OF SAN DIEGO (erroneouslysued as SUPERIOR COURT OF SANDIEGO COUNTY); HON. ROBERT J.TRENTACOSTA, Presiding Judge of theSuperior Court (erroneously sued as RobertJ. Trentacosta); MICHAEL M. RODDY,Executive Officer of the Superior Court;JUDICIAL COUNCIL OF CALIFORNIA;HON. STEVEN JAHR, AdministrativeDirector of the Courts;ADMINISTRATIVE OFFICE OF THECOURTS; HON. TANI G. CANTIL-SAKAUYE, Chief Justice of California;HON. LISA SCHALL, Judge of theSuperior Court; HON. LORNA A.ALKSNE, Judge of the Superior Court;HON. CHRISTINE K. GOLDSMITH,Judge of the Superior Court; HON.JEANNIE LOWE, Commissioner of theSuperior Court (Ret.); HON. WILLIAM H.McADAM, JR., Judge of the SuperiorCourt; HON. EDLENE C. McKENZIE,Commissioner of the Superior Court; HON.JOEL R. WOHLFEIL, Judge of theSuperior Court; HON. MICHAELGROCH, Judge of the Superior Court; andKRISTINE P. NESTHUS


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed

to have consented to electronic service are being served with a copy of this

document via the court’s CM-ECF system per Federal Rule of Civil Procedure

5(b)(2)(E). Any other counsel of record will be served by facsimile transmission

and/or first class mail this 10th day of April 2014.

/s/ Matthew L. Green _______


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THOMAS E. MONTGOMERY, County Counsel (State Bar No. 109654) County of San Diego By RICKY R. SANCHEZ, Senior Deputy (State Bar No. 107559) 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4874; Fax: (619) 531-6005 E-mail: [email protected] Attorneys for Defendant County of San Diego (also erroneously sued herein as “San Diego County Sheriff’s Department”), and William D. Gore

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, a Delaware Corporation, LEXEVIA, PC, a California Professional Corporation, and COLBERN C. STUART, an individual, Plaintiffs, v. SAN DIEGO COUNTY BAR ASSOCIATION, a California Corporation; et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 13-cv-1944-CAB(BLM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT SUPPLEMENTAL TO OMNIBUS MOTION TO DISMISS Date: June 6, 2014 Time: 2:00 p.m. Ct rm: 4C Honorable Cathy Ann Bencivengo

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- 1 - 13-cv-1944-CAB(BLM)

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STATEMENT OF CASE

Plaintiff Stuart’s disgruntlement with the California family law dissolution process

is the basis for this lawsuit against the Superior Court, judges, family law practitioners,

counselors, and numerous others. The County and Sheriff Gore are expressly named in

thirty-seven largely redundant claims all apparently stemming from Stuart’s removal

from a San Diego County Bar Association seminar on April 15, 2010, by two Off Duty

Officers, Inc., employees. (First Amended Complaint “FAC” ¶ 132.) As concerns the

County and Sheriff’s involvement, Stuart alleges there were 15 sheriff deputies at the

seminar watching him. (FAC ¶ 124.) Stuart goes on to conclusorily allege that his

removal was the result of a conspiracy among the numerous defendants.

STANDARD FOR DISMISSAL

A Rule 12(b)(6) motion tests the legal sufficiency of claims. See Fed. R. Civ. P.

12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). Dismissal is appropriate

when the complaint fails to allege a cognizable legal theory for recovery or sufficient

facts to support such a theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

Cir. 1988). Under Federal Rule of Civil Procedure, rule 8(a)(2), a pleading must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief,”

and although Rule 8 “does not require ‘detailed factual allegations,’ it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 677-78 (2009). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. at 678. Allegations of legal

conclusions are not accepted as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And

the court is not obliged to accept as true allegations that require “unwarranted

deductions” or “unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d

979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir.

2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not

accept as true unreasonable inferences or conclusions of law cast in the form of factual

allegations). To survive a motion to dismiss for failure to state a claim, a complaint must


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contain sufficient factual matter, which when taken as true, demonstrates the claim is

“plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial

plausibility when the factual content of the pleading allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. Moss v. U.S.

Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

I ALL STATE TORT AND SECTION 1983, 1985 and 1986 CLAIMS

ARE BARRED BY THE STATUTE OF LIMITATIONS

Claims brought under Sections 1983, 1985, and 1986 must be filed within the time

specified by the state’s statute of limitations for personal injury torts. Usher v. Los

Angeles, 828 F.2d 556, 558 (9th Cir. 1987); Taylor v. Regents of Univ. of Cal., 993 F.2d

710, 711-12 (9th Cir. 1993) (noting that same limitations period applies to both § 1983

and § 1985 claims). California law sets a two-year statute of limitations for personal

injury claims. Cal. Civ. Proc. Code § 335.1; Hacienda Valley Mobile Estates v. City of

Morgan Hill, 353 F.3d 651, 655 n.2 (9th Cir. 2003). “Although state law determines the

length of the limitations period, federal law determines when a civil rights claim

accrues.” Morales v. City of L.A., 214 F.3d 1151, 1153-54 (9th Cir. 2000). Under federal

law, a cause of action accrues when the “plaintiff knows or had reason to know” of the

injury which is the basis of the action. Morales v. City of L.A., 214 F.3d 1151, 1153-54

(9th Cir. 2000). Counts 1.1, 1.11, 2, 6, 6.2, 6.3, 7, 7.4. 9, 9.1, 9.2, 9.3, 9.4, 9.5, 10, 11.11,

12, 13, and 15 purport to allege claims under 42 U.S.C. §§ 1983, 1985, and 1986 and

state law based on the alleged assault of Stuart on April 15, 2010. The statute of

limitations on these claims expired more than a year before this action was filed on

August 20, 2013. The claims are barred by the statute of limitations.

II BECAUSE NO TIMELY GOVERNMENT DAMAGE CLAIM WAS FILED

ALL STATE LAW CAUSES OF ACTION ARE BARRED

The submission of a government damages claim to a government entity is a

condition precedent to any claim for money damages against the entity or its employees.

(Cal. Gov't Code § 945.4.) The damage claim must be presented within six months of


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accrual of the cause of action. (Cal. Gov't Code § 911.2.) "[F]ailure to file a claim is

fatal to a cause of action." Dilts v. Cantua Elem. Sch. Dist., 189 Cal. App. 3d 27, 31

(1987). Statutes for commencement of actions against public entities "'are mandatory and

must be strictly complied with...'[citations omitted.]" Smith v. City and County of San

Francisco, 68 Cal.App.3d 227, 230 (1977). Each cause of action asserted in a complaint

must correspond to the factual circumstances stated in a timely damages claim. Watson

v. State, 21 Cal. App. 4th 836, 844 (1993); Nelson v. State, 139 Cal. App. 3d 72, 80

(1982) Fall River Joint Unified Sch. Dist. v. Superior Court, 206 Cal. App. 3d 431, 434

(1988). Counts 1.1, 1.11, 2, 6, 6.2, 6.3, 7, 7.4, 9. 9.1, 9.2, 9.3, 9.4, 9.5, 10, 11.11, 12, and

13 by reference to state law purport to allege not only federal but also state law claims

premised on the April 15, 2010, ejectment of Stuart from a family law seminar. Because

no damage claim is alleged to have been filed, all state law claims are time barred.

III

NO PLAUSIBLE MUNICIPAL CIVIL RIGHTS CLAIM IS STATED

For a 42 U.S.C. § 1983 municipal civil rights claim, facts must be alleged showing

one of the municipality’s policies or customs directed the commission of a constitutional

violation. Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). This

“‘official policy’ requirement was intended to distinguish acts of the municipality from

acts of employees of the municipality, and thereby make clear that municipal liability is

limited to action for which the municipality is actually responsible.” Pembaur v.

Cincinnati, 475 U.S. 469, 479 (1986). This is because municipalities “cannot be held

liable under § 1983 on a respondeat superior theory” for constitutional violations

committed by any of its officers or employees. Monell at 436 U.S. 691, 694.

Plaintiffs’ allegations that the County and Sheriff’s Department maintain a culture

of deliberate indifference, fail to train and supervise, make policies for the State’s

judiciary, operate the courts, and had power to supervise the Doyne corporation are but

conclusions without factual support and thus insufficient to state a claim. (FAC ¶¶ 716,

745, 873, 875.) In Ashcroft, 556 U.S. 662, plaintiff a post-September-11th detainee sued


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Attorney General Ashcroft and FBI Director Robert Mueller alleging they "knew of,

condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of

confinement "as a matter of policy, solely on account of [his] religion, race, and/or

national origin and for no legitimate penological interest", that Ashcroft was the

"principal architect" of the policy, and Mueller "instrumental" in adopting and executing

it. The Court found the assertions to be conclusory and a "formulaic recitation of the

elements" of a constitutional discrimination claim not entitled to an assumption of truth

and insufficient for a claim. Id. at 681. In Moss v. United States Secret Serv., plaintiffs’

demonstration against President George W. Bush was relocated to put the President out

of weapons range. Claiming First Amendment violations, plaintiffs alleged the Secret

Service relocated the demonstration because of its anti-Bush message, and in conformity

with an officially authorized Secret Service policy of suppressing speech critical of the

President. The allegations were found to be conclusory, not entitled to an assumption of

truth and insufficient to state a claim. Moss 572 F.3d at 970. The municipal civil rights

allegations against defendants should be dismissed because they are similarly conclusory,

without factual support, and insufficient to state a plausible claim.

IV NO CLAIM IS STATED AGAINST WILLIAM E. GORE

WHO WAS UNINVOLVED IN ANY INCIDENT

The first amended complaint contains no factual allegations against William Gore

on which federal or state tort liability can attach. Count 6 and 6.3 purport to state a claim

against him based on the doctrine of respondeat superior. There are only general

conclusory allegations that he is the Sheriff with authority to manage Sheriff deputies.

Such allegations are not against him individually but rather the office he occupies in his

official capacity. A lawsuit against the Sheriff in his official capacity is but a lawsuit

against the County itself. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Mitchell

v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996). No specific misconduct is alleged to have

been committed by him on which any claim can be premised. Under federal law he is not

subject to vicarious liability. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Palmer


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v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993); Jones v. Williams, 286 F.3d 1159,

1163 (9th Cir. 2002). Likewise under state law he is not subject to vicarious liability for

the acts or omissions of subordinates absent personal involvement. Cal. Govt. Code

820.8; Michel v. Smith, 188 Cal. 199, 201 (1922). The first amended complaint should be

dismissed as to William Gore because there is no factual basis for personal liability.

V THE FIRST AMENDED COMPLAINT FAILS TO STATE CLAIMS

UNDER 42 U.S.C. SECTIONS 1985 AND 1986

Section 1985 prohibits conspiracies to interfere with civil rights. Karim-Panahi v.

L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Count 9 and the subpart claims

thereof allege claims based on 42 U.S.C. section 1985(1) preventing a federal officer

from performing duties, section 1985(2) obstructing justice in federal courts, and 1985(3)

depriving another of equal protection. An allegation of racial or class-based

discrimination is required to state a claim for relief under subsections (2) and (3). See RK

Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002); Portman v. Cnty. of

Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). “‘Discriminatory purpose’ . . . implies

more than intent as volition or intent as awareness of consequences . . . . It implies that

the decision maker . . . selected or reaffirmed a particular course of action at least in part

‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Conclusory allegations are

insufficient. Ashcroft, 556 U.S. at 678. A 15 U.S.C. § 1985 (2006) claim “must allege

facts to support the allegation that defendants conspired together. A mere allegation of

conspiracy without factual specificity is insufficient.” Karim-Panahi, 839 F.2d at 626.

To establish existence of a conspiracy, a plaintiff is required to produce “concrete

evidence” of an agreement or “meeting of the minds” between defendant and others to

deprive the plaintiff of one of plaintiff’s constitutional rights. Radcliffe v. Rainbow

Constr. Co., 254 F.3d 772, 782 (9th Cir. 2001).

Section 1985(1) is here inapplicable because Stuart was not an officer holding

federal office. Also, the first amended complaint does nothing more than conclusorily


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attribute to defendants the so-called “Stuart Assault” and Stuart’s disbarment. Stuart

alleges he believes there was a conspiracy and that Sheriff Gore was or should have been

aware of the assault. (FAC ¶ 278, 279, 1051.) It fails to allege with specificity facts

showing a meeting of the minds sufficient for conspiracy, or facts establishing racial or

class-based discrimination, and thus fails to state any claim under section 1985.

Count 10 of the first amended complaint alleges a violation of § 1986, which

“authorizes a remedy against state actors who have negligently failed to prevent a

conspiracy that would be actionable under § 1985.” Cerrato v. S.F. Cmty. Coll. Dist., 26

F.3d 968, 971 n.7 (9th Cir. 1994). A conspiracy under § 1985 is therefore a prerequisite

to a valid claim under § 1986. Sekerke v. Kemp, 2013 U.S. Dist. LEXIS 35041, at *33

(S.D. Cal. Mar. 12, 2013) (Moskowitz, J.) (citing Karim-Panahi, 839 F.2d at 626).

Because no section 1985 claim is stated, the section 1986 claim also fails.

VI NEGLIGENT SUPERVISION IS NOT A COGNIZABLE STATE LAW THEORY

OF RECOVERY UNDER THE CALIFORNIA TORT CLAIMS ACT (CTCA)

Count six, 6.2, 6.3, and 11.11 appear to allege a lack of supervision claim possibly

on state law and under section 1983. To the extent those counts may purport to assert a

state law claim for negligent supervision, it fails because under the CTCA all tort liability

against a public entity or its employees is dependent on an authorizing statute; and

negligent hiring, training, and supervision is not a cognizable statutory theory of recovery

under the California Tort Claims Act. De Villers v. Cnty. of San Diego, 156 Cal. App.

4th 238, 253, 256 (2007); Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802

(1986); Cal. Gov't Code § 815(a). “[T]here is no statutory basis for declaring a

governmental entity liable for negligence in its hiring and supervision practices and,

accordingly, plaintiffs' claim against County based on that theory is barred.” DeVillers

156 Cal.App.4th at 253.

/ / /

/ / /

/ / /


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VII THE FIRST AMENDED COMPLAINT FAILS TO STATE A LANHAM ACT

FALSE ADVERTISING CLAIM IS STATED AGAINST DEFENDANTS

Count 15 of the first amended complaint purports to assert a false advertising claim

against defendants under the Lanham Act, 15 U.S.C. § 1125. Plaintiffs allege unspecified

advertisements, promotions, sale and offers for sale of legal services were false and

misleading. (FAC ¶ 906.) Section 43(a) of the Lanham Act prohibits the use of false

designations of origin and false descriptions or representations in the advertising and sale

of goods and services. Smith v. Montoro, 648 F.2d 602, 605 (9th Cir. 1981); 15 U.S.C.

§ 1125(a). A false advertising claim requires the plaintiff to “allege commercial injury

based upon a misrepresentation about a product, and also that the injury was

‘competitive,’ i.e., harmful to the plaintiff's ability to compete with the defendant.”

Barrus v. Sylvania, 55 F.3d 468, 470 (9th Cir. 1995).1 No claim is stated because the

County of San Diego and the Sheriff do not engage in the advertisement or sale of goods

or services; are not involved in interstate commerce; and the County defendants do not

compete with plaintiffs in any commercial activity. And the complaint does not allege

facts to the contrary. The first amended complaint therefore fails to state a Lanham Act

claim against the County of San Diego and Sheriff Gore.

VIII

THE FIRST AMENDED COMPLAINT FAILS TO STATE A RICO CLAIM

Numerous Racketeer Influenced and Corrupt Organizations (RICO) claims are

alleged against many defendants. Against Sheriff Gore RICO claims based on

kidnapping; obstruction of justice by interfering with Stuart’s professional duties (Exh.

4, 7, 8, 9 to Request for Judicial Notice docket no. 131-3 indicate Stuart is an attorney

1 A false advertising claim under the Lanham Act has five elements: (1) a false

statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement is actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused the statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by lessening of the goodwill associated with its products. Skydive Ariz., Inc. v. Quattrocchi. 673 F.3d 1105, 1110 (9th Cir. 2012); 15 U.S.C. § 1125(a)(1)(B).


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disbarred in California and suspended in Arizona and Nevada); tampering with or

retaliating against a federal criminal proceeding witness (there is no such proceeding);

aiding and abetting the commission of a violent crime (no criminal charges against

defendants exist); against both the County and Sheriff there are RICO claims based on

honest service fraud, witness retaliation, and aiding and abetting conspiracy. (FAC

racketeering cts 2, 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 5.1, 5.2, 5.3, 5.8, 5.11, 6, 7, 8, 9, 10, and

11.)

No RICO claim can be stated against the County of San Diego because as a

government entity it is incapable of forming mens rea necessary to perform an act of

racketeering, it is not subject to vicarious liability for alleged RICO violations of natural

persons, and is immune to actions for treble damages which RICO provides. Lancaster

Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991).

No plausible RICO claim is otherwise stated. "[T]he following are essential

elements of any civil RICO action: (1) the existence of a RICO 'enterprise'; (2) the

existence of a 'pattern of racketeering activity'; (3) a nexus between the defendant and

either the pattern of racketeering activity or the RICO 'enterprise'; and (4) resulting injury

to plaintiff, in his 'business or property."' Occupational-Urgent Care Health Sys., Inc. v.

Sutro & Co., 711 F. Supp. 1016, 1021 (E.D. Cal. 1989). “To establish the existence of ...

an enterprise, a plaintiff must provide both ‘evidence of an ongoing organization, formal

or informal,’ and ‘evidence that the various associates function as a continuing unit.’”

Odom v. Microsoft Corp., 486 F.3d 541, 552 (9th Cir. 2007). To satisfy RICO's pattern

requirement, a plaintiff must allege two or more predicate acts of racketeering in

furtherance of a criminal scheme. Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 193

(9th Cir. 1987). The plaintiff must plead such acts with specificity and identify the

individual actions of each defendant sufficient to constitute a pattern of racketeering

activity. Blake v. Dierdorff, 856 F.2d 1365, 1370 (9th Cir. 1988). The Ninth Circuit has

applied Rule 9(b )' s particularity requirements to RICO claims under Section 1962.

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Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988) (default on

RICO claim overturned because the allegations of predicate acts in the complaint were

“entirely general,” and “no specifics of time, place, or nature of the alleged

communications are pleaded”). No RICO claim is stated because the first amended

complaint does not allege specific facts sufficient for such claims.

The “enterprise” element appears to be related to family law legislation with which

plaintiffs are disgruntled. (FAC ¶ 964.) The allegation is unintelligible. Absent are

factual allegations specifying participation of William Gore or the County in an

enterprise or facts showing any pattern of racketeering and crime. Accordingly, the

RICO claims should be dismissed

IX THERE IS NO BASIS FOR INJUNCTIVE RELIEF

The first amended complaint requests a restraining order and order enjoining

defendants under 18 U.S.C. § 1514(d) from prospectively violating plaintiffs’ rights.

(FAC ¶ 1192.) To obtain an injunction, the plaintiff must establish that a "real or

immediate threat" exists that he will be wronged again. City of Los Angeles v. Lyons, 461

U.S. 95, 111 (1983). The alleged threat cannot be "conjectural" or "hypothetical." Id at

101-102. Where the activities sought to be enjoined have already occurred, and the Court

cannot undo what has already been done, and there is no prospective harm to the plaintiff,

the action is moot and no injunction can be granted. ICR Graduate Sch. v. Honig, 758 F.

Supp. 1350, 1354-55 (S.D. Cal. 1991) (citing Friends of the Earth, Inc. v. Bergland, 576

F.2d 1377, 1379 (9th Cir. 1978)). Here, no conduct is threatened against plaintiff.

Therefore no claim for injunctive relief is stated.

X “SAN DIEGO COUNTY SHERIFF’S DEPARTMENT” IS NOT A PROPER

DEFENDANT IN THIS ACTION

The “San Diego County Sheriff’s Department” is not identified as a defendant in

the caption , but count 7 directs a municipal federal civil rights claim against both the

County and the Sheriff’s department. The section 1983 claims are not cognizable against


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the Sheriff’s department because as a county department it is not a “person” within the

meaning of 42 U.S.C. § 1983, as stated in Pellum v. Fresno Police Dept., 2011 U.S. Dist.

Lexis 10698, [6-7] (E.D. Cal. Feb. 2, 2011):

The Fresno Police Department is a municipal department of the City of Fresno and is not considered a “person” within the meaning of Section 1983. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (Ferguson, J., concurring) (noting that municipal police departments and bureaus are generally not considered “persons” within the meaning of Section 1983); Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996) (dismissing sua sponte Santa Clara Department of Corrections as improper defendant); Jewett v. City of Sacramento Fire Dep't, No. CIV. 2:10-556 WBS KJN, 2010 WL 3212774, at *2 (E.D. Aug. 12, 2010) (finding fire department not a “person” under Section 1983 and dismissing suit against it); Wade v. Fresno Police Dep’t, No. Civ. 09-0588 AWI DLB, 2010 WL 2353525, at *4 (E.D. Cal. June 9, 2010) (finding police department is not a “person” under Section 1983); Morris v. State Bar of Cal., No. Civ. 09-0026 LJO GSA, 2010 WL 966423, at *3 (E.D. Cal. Mar. 11, 2010) (finding that a fire department is a municipal department and therefore not a “person” under Section 1983); Sanders v. Aranas, No. 1:06-CV-1574 AWI SMS, 2008 WL 268972, at *3 (E.D. Cal. Jan. 29, 2008) (finding Fresno Police Department improper defendant because it is a sub-division of the City of Fresno); Brockmeier v. Solano Cnty. Sheriff's Dep't, 2006 WL 3760276, *4 (E.D.Cal. Dec.18 2006) (dismissing Sheriff's Department as an improperly named defendant for purposes of Section 1983).

XI

CALIFORNIA COALITION FOR FAMILIES LACKS CAPACITY TO SUE

For standing to sue in federal court a corporate plaintiff must allege that it suffered

an injury in fact – an invasion of a legally protected interest. Paradise Creations, Inc. v.

U V Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir. 2003). Because CCFC did not exist on

April 15, 2010, (see Exh. 3 to Request for Judicial Notice docket no. 131-3) when Stuart

was escorted out of a Bar association seminar, which event is the basis for the County

and Sheriff Gore’s inclusion in this lawsuit, CCFC does not have standing to sue.

CONCLUSION

The first amended complaint should be dismissed as to the County and William

Gore.

DATED: April 10, 2014 THOMAS E. MONTGOMERY, County Counsel

By s:/ RICKY R. SANCHEZ, Senior Deputy Attorneys for Defendants County of San Diego (also erroneously sued as “San Diego County Sheriff’s Department”) and William Gore E-mail: [email protected]











~ j

~ «J

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I

1 CHRISTOPHER J. ZOPATTI, Esq. (SBN 129497) JOAN E. TRIMBLE, Esq. (SBN 205038)

2 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 2601 Main Street, Suite 800

3 Irvine, California 92614 Tel: (619) 222-5700

4 Fax: (619) 232-2206 Email: czoattictsclaw.com

5 tnm e ctsc aW.com

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Attorne),s for Defendant STEPHEN E. DOYNE, PH.D, and STEPHEN E. DOYNE, A Psychological Corporation



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.,

Plaintiff,

vs.

SAN DIEGO COUNTY BAR ASSOCIATION, et al.,

Defendants.

Case No.: 13cv1944 CAB (BLM) Judge: Hon. Cathy Ann Bencivengo

Complaint Filed: August 20,2013

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT

Date: June 6, 2014 Time: 2:00 p.m. Courtroom: 4C

rNO ORAL ARGUMENT UNLESS --_________ ------l REQUESTED BY THE COURT.]

(l3cv1944 CAB (BLM» MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS


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(13cv1944 CAB (BLM»

- 1 -

SUPPLEMENTAL BRIEF OF STEPHEN E. DOYNE'S IN SUPPORT OF MOTION TO DISMISS


1 1. INTRODUCTION

2 STEPHEN E. DOYNE, PH.D. and STEPHEN E. DOYNE, A Psychological

3 Corporation (collectively referred to as Dr. DOYNE) file this supplemental brief

4 concurrently with a joinder in the defense omnibus motion to dismiss pursuant to the

5 court's order of February 26, 2014. In addition to the relief sought by way of the

6 joinder in the omnibus motion to dismiss, Dr. DOYNE requests this Court dismiss

7 this action pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) because the

8 acts alleged against Dr. DOYNE are time barred. The underlying acts began in

9 2008, the alleged breach by Dr. DOYNE occurred in March 1, 2009 and the SDCBA

10 incident occurred on April 15, 2010. [Amended Complaint ~~ 109, 818.] The

11 amended complaint fails to set forth grounds for equitable tolling of the statute of

12 limitations, and instead sets forth facts that undermine the alleged grounds for

13 tolling. The applicable statutes of limitation therefore bar this lawsuit in its entirety.

14 Dr. DOYNE also is immune from suit in this matter pursuant to the doctrines of

15 domestic relations exception, Rooker-Feldman, and quasi-judicial immunity.

16 2. STATEMENT OF THE CASE

17 Plaintiffs appear to assert the following categories of causes of action against

18 Dr. DOYNE i: (1) Violation of 42 U.S.C. sections 1983, 1985, and 1986; (2)

19 California state law claims including assault and battery, breach of contract,

20 wrongful inducement to breach of contract, unjust enrichment, interference with

21 economic relations, defamation, fraud, Business & Professions Code section

22 172000, extortion, bribery, and intentional infliction of emotional distress; (3)

23 Violation of 15 U.S.C. section 1125, the Lanham Act; (4) Violation of 18 U.S.C.

24 section 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act

25 ("RICO"); and (5) Prospective relief pursuant to 28 U.S.C. section 2201 and 18

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1 As set forth in the omnibus motion to dismiss, plaintiffs' violation ofFRCP Rule 8 makes it difficult to discern which causes of action are asserted against which parties.

(l3cv1944 CAB (BLM» - 1 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS


1 U.S.C. section ISI4(b).

2 Dr. DOYNE is a psychologist licensed by the state of California who

3 performs forensic psychology and child custody evaluation/mediation services.

4 [Amended Complaint ~~ 47-48.] Dr. DOYNE was court appointed to act as

5 mediator in Mr. STUART's dissolution case. [Request for Judicial Notice ("RJN") ~

6 1; Amended Complaint ~~ 809-814.] The amended complaint alleges that Dr.

7 DOYNE and Mr. STUART entered into a written agreement wherein Dr. DOYNE

8 would provide mediation services related to Mr. STUART's dissolution

9 proceedings, and that at some unspecified time prior to March 1,2009, Dr. DOYNE

10 breached the mediation agreement. [Amended Complaint ~~ 817-819.] Mr.

11 STUART alleges that in September of 2008 Dr. DOYNE agreed to act as a mediator

12 in his custody dispute, and that during the course of his services Dr. DOYNE

13 reported Mr. STUART to San Diego County Child Protective Services because Mr.

14 STUART held his son "upside down over a balcony." [Amended Complaint ~ 817.]

15 The amended complaint further alleges Dr. DOYNE made a "false and misleading"

16 child abuse report and forced Mr. STUART to pay for unnecessary services.

17 [Amended Complaint ~ 817.]

18 As a result of the various "breaches" identified in the amended complaint, Mr.

19 STUART alleges that "[i]n addition to complaining to and firing DOYNE, Plaintiff

20 also filed formal complaints with DOYNE' s landlord, Scripps Memorial Hospital,

21 the State of California Board of Psychology" as well as federal law enforcement

22 officers. [Amended Complaint ~ 819.] The amended complaint alleges that Dr.

23 DOYNE retaliated against Mr. STUART by falsely testifying and reporting facts

24 related to Mr. STUART's son, and by demanding to be paid-which Mr. STUART

25 alleges constitutes extortion and bribery. [Amended Complaint ~~ 821-830.] Mr.

26 STUART refused to pay Dr. DOYNE further, but claims he was "intimidated,

27 terrified, oppressed, and under duress" because Dr. DOYNE remained a witness in

28

(l3cv1944 CAB (BLM»

- 2 -MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS


1 Mr. STUART's family law matter, thus prohibiting Mr. STUART "from taking

2 formal action" until August 20, 2013. [Amended Complaint ~ 828-830.] This

3 argument is contradicted by the pleadings, in that Mr. STUART alleges he filed

4 complaints against Dr. DOYNE with the Board of Psychology, Scripps Memorial

5 Hospital, Dr. DOYNE' s landlord, and even federal agents. [Amended Complaint ~

6 819.] Mr. STUART also filed an amicus curiae brief in an action against Dr.

7 DOYNE on November 20,2009, in which he both acted as the attorney for CCFC

8 and was the first signatory. [RJN 3, Exhibits to Amended Complaint, P654-P686.]

9 Mr. STUART also filed a legal malpractice action against SHARON BLANCHET

10 and ASHWORTH, BLANCHET, KRISTENSEN & KALEMENKARIAN

11 (collectively "BLANCHET") on January 15, 2010, which was is based upon the

12 BLANCHET firm's representations to Mr. STUART regarding the efficacy of Dr.

13 DOYNE's mediation services. [RJN 2, Exhibits to Amended Complaint, P1353-

14 P1366.]

LEGAL ANALYSIS 15 3.

16 A. Plaintiffs' Claims Are Time Barred

17 Plaintiff's complaint was filed on or about August 20, 2013. The amended

18 complaint alleges that the underlying acts of Dr. DOYNE were discovered in March

19 of 2009, thus each and every one of Plaintiffs' claims against Dr. DOYNE are time

20 barred by the respective statutes of limitation regardless of whether the limitations

21 period is one year under Code of Civil Procedure section 340.5 or 4 years for a civil

22 RICO claim. The amended complaint alleges causes of action for breach of

23 contract, fraud, intentional infliction of emotional distress, extortion, and bribery, all

24 stemming from professional services provided by Dr. DOYNE in the context of his

25 role as a court appointed mediator. The Supreme Court held in Wilson v. Garcia

26 that the appropriate statute of limitations period for 42 U.S.C. section 1983 actions is

27 that of the state's statute of limitations for personal injury cases. (Wilson v. Garcia,

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471 U.S. 261, 276,105 S. Ct. 1938 (1985).) In California, the statute of limitations

for personal injury causes of action is two years. (California Code of Civil

Procedure section 335.1.) However, for claims against a health care provider, the

time for commencement of the action begins one year from the discovery of the

claim. (California Code of Civil Procedure section 340.5.) Section 1985 claims are

likewise governed by the state personal injury limitations period. (Taylor v. Regents

ofUniv. 01 Cal. , 993 F.2d 710,711-712 (9th Cir. Cal. 1993).) Section 1986 contains

its own limitations period of one year. (Kennar v. North American Rockwell Corp.,

1974 U.S. Dist. LEXIS 5678, 4 (C.D. Cal. Nov. 19, 1974).) Given that the claims

arising from Dr. DOYNE's professional services accrued in 2009 or 2010, all tort

claims as well as the sections 1983, 1985, and 1986 causes of action are time barred

by the one year statute of limitations.

Although the original complaint was silent regarding allegations of purported

duress, the amended complaint attempts to assert a claim for equitable tolling of the

statute of limitations by pleading that plaintiff was subjected to fraud, duress, undue

influence, and oppression. [Amended complaint ~~ 827-830.] The amended

complaint fails to set forth sufficient allegations to support equitable tolling of the

limitations period. To demonstrate that a defendant is equitably estopped from

asserting the limitations period has expired, the plaintiff must demonstrate conduct

on behalf of the defendant that actually and reasonably induced forbearance of filing

suit. (Lauter v. Anoufrieva (C.D. Cal. 2009) 642 F.Supp.2d 1060, 1101.) In the case

of Ateeq v. Najar (1993) 15 Cal.AppAth 1351, 1356-57, the court found that the

doctrine of equitable estoppel applied where a jury found that the defendant

repeatedly threatened the plaintiff with deportation if he caused any problems with

the accounting of their financial dealings. The amended complaint is absent of

allegations indicating that Dr. DOYNE in any way attempted to influence Mr.

STUART from filing actions against him. To the contrary, the amended complaint

(l3cvI944 CAB (BLM»



1 alleges that Mr. STUART filed complaints against Dr. DOYNE with the Board of

2 Psychology, Scripps Memorial Hospital, and even Dr. DOYNE's landlord.

3 [Amended Complaint ~~ 821-830.] The amended complaint alleges that Mr.

4 STUART was not delayed from taking formal action against Dr. DOYNE, as one of

5 the exhibits to the amended complaint is the November 20, 2009 amicus curiae brief

6 Mr. STUART prepared on behalf of CCFC in an action against Dr. DOYNE. [RJN

7 3, Exhibits to Amended Complaint, P654-P686.] Mr. STUART further was not

8 delayed from filing a legal malpractice action against BLANCHET on January 25,

9 2010 in which the entirety of the complaint alleges malpractice based upon

10 BLANCHET's alleged recommendation that Mr. STUART retain the services of Dr.

11 DOYNE. [RJN 3, Exhibits to Amended Complaint, PI353-PI366.] The complaint

12 against BLANCHET sets forth various alleged wrongdoings of Dr. DOYNE. Based

13 upon the allegations showing that Mr. STUART took formal action against Dr.

14 DOYNE, Mr. STUART has failed to demonstrate conduct that actually and

15 reasonably delayed him from filing suit and thus this action is time barred ..

16 B. All Claims Al'ising From Dr. DOYNE's Participation In

17 STUART's Family Law Matter Are Barred By The Domestic

18 Relations Exception To Federal Jurisdiction.

19 The burden of establishing federal court jurisdiction falls on the party seeking

20 to invoke jurisdiction. (Kokkonen v. Guardian Life Ins. Co. of America (1994) 511

21 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed. 2d 291.) In this case, plaintiffs

22 cannot meet their burden because the gravamen of this lawsuit seeks to invalidate

23 orders of the San Diego Superior court pertaining to the management of family law

24 cases. The Ninth Circuit's test for subject matter jurisdiction in domestic relations

25 cases was set forth in Buechold v. Ortiz (9th Cir. 1968) 401 F.2d 371, 372, in which

26 the court held that family law matters are the province of state courts.

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The Buechold v. Ortiz court notes that state courts have developed

(13cv1944 CAB (BLM))



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1 methodologies for determining child custody orders, which involve the

2 consideration of criteria such as living standards and wages that are dependent upon

3 conditions in the area where the parties reside, and thus regulation of domestic

4 matters should be left to state courts. (Id.) As was the case in Buechold v. Ortiz,

5 where the party failed to seek relief in the California state courts, there is no

6 indication in Mr. STUART's complaint as to why he cannot seek relief in the state

7 court.

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C. To The Extent That This Action Seeks To Challenge Any Order Of

The Family Law Court It Is Barred By The Rooker-Feldman

Doctrine.

The Rooker-Feldman doctrine precludes a federal court from having

jurisdiction over general constitutional challenges if such claims are inextricably

intertwined with the claims asserted in state court. (Rooker v. Fidelity Trust Co.

(U.S. 1923) 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362, 1923 U.S. LEXIS 2824;

District of Columbia Court of Appeal v. Feldman (U.S. 1983) 460 U.S. 462, 103 S.

Ct. 1303, 75 L. Ed. 2d 206.) In Rooker v. Fidelity Trust Co. the plaintiffs alleged an

adverse state court judgment violated the constitution, and sought redress in the

federal court. (Rooker v. Fidelity Trust Co. (U.S. 1923) 263 U.S. 413, 44 S. Ct. 149,

68 L. Ed. 362.) The Supreme Court held in Rooker that if the state court's ruling

was wrong, the appropriate action was to pursue an appeal. (Id. at 416.) Similarly,

the Supreme Court in Feldman that the federal court lacked authority to review a

final judicial determination of the District of Columbia high court. (Id. at 476.) The

principals of these holdings have come to be known as the Rooker-Feldman

doctrine, which applies to cases wherein a losing party in a state case seeks to have a

federal court reject a judgment of the state court. (Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., (U.S. 2005) 544 U.S. 280,291,125 S. Ct. 1517, 161 L. Ed. 2d 454

("Rooker-Feldman doctrine is confined to cases of the kind from which it acquired




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its name: cases brought by state-court losers complaining of injuries caused by state

court judgments rendered before the federal district court proceedings commenced

and inviting district court review and rejection of those judgments.").)

Prospective Relief Count 2 asks the court to issue an order finding that

orders of the superior court in family law matters are unconstitutional and thereby

invalid, and as such this case falls squarely within the parameters of the Rooker

Feldman doctrine. [Amended Complaint ~~ 1198-1203.] As stated in Noel v. Hall

(9th Cir. 2003) 341 F.3d 1148, 1165, "(t)he 'inextricably intertwined' analysis of

Feldman applies to defeat federal district court subject matter jurisdiction when a

plaintiff s suit in federal district court is at least in part a forbidden de facto appeal of

a state court judgment, and an issue in that federal suit is 'inextricably intertwined'

with an issue resolved by the state court in its judicial decision." (ld. at 1158.) The

stated purpose of plaintiffs' action is to have this court invalidate state court orders,

and thus all issues are inextricably intertwined with issues resolved by state courts.

D. Plaintiff's Claims Are Barred By The Doctrine Of Quasi-Judicial

Immunity.

Dr. DOYNE was court appointed to act as mediator in Mr. STUART's

dissolution case, and as such is protected by the doctrine of quasi-judicial immunity.

[RJN ~ 1, Exh. G p. 23.] He was appointed for the purpose of making

recommendations to the court regarding custody and visitation. [RJN ~ 1, Exh. G ~

p. 23.] It is clear that Congress did not intend section 1983 to abrogate immunities

"well grounded in history and reason." (Buckley v. Fitzsimmons (1993) 509 U.S.

259, 268, 113 S. Ct. 2606, 2612-13, 125 L.Ed. 2d 209.) The United States Supreme

Court addressed the issue of witness immunity and section 1983 in the case of

Briscoe v. Lahue (U.S. 1983) 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96,

wherein the Court held that section 1983 does not abrogate the immunity provided to

27 participants in judicial proceedings. The Supreme Court has recognized that "when

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1 Congress enacted § 1983 it was aware of a well-established and well-understood

2 common-law tradition that extended absolute immunity to individuals performing

3 functions necessary to the judicial process." (Miller v. Gammie (9th Cir. 2003) 335

4 F.3d 889, 895-96, (Abrogated in part on other grounds).) The common law provided

5 absolute immunity from subsequent damages liability for all persons - governmental

6 or otherwise - who were integral parts of the judicial process." (Briscoe, supra, 40

7 U.S. at 335.)

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This protection extended to private counsel and witnesses for their

involvement in the "judicial proceeding itself." (Id. at 334.) Non-judicial persons

who fulfill quasi-judicial functions intimately related to the judicial process have

absolute immunity for damage claims arising from their performance of the

delegated functions. (Myers v. Morris (8th Cir. 1987) 810 F.2d 1437, 1466-67.)

Absolute immunity may properly be raised in support of a motion to dismiss for

failure to state a claim. (See Imbler v. Pachtman (1976) 424 U.S. 409, 416; 96 S.Ct.

984, 988; Mullis v. United States Bankruptcy Court, (9th Cir. 1987) 828 F.2d 1385,

1387). Further, the absolute immunity of therapists extends beyond the function of

testifying before the family court and encompasses the provisions of their reports

and recommendations to the family court. (Myers v. Morris (1987) 810 F.2d 1437,

1465.) Psychologists who fulfill quasi-judicial functions intimately related to the

judicial process have absolute immunity for damage claims resulting from their

performance of the delegated functions. (Kurzawa v. Meuller (6th Cir. 1984) 732

F.2d 1456, 1548.)

In Kurzawa, the defendants included a psychologist who examined the

plaintiffs' child and made findings used by the state court to determine what

environment best served the interests of the child. The court found that this function

of providing information to be analogous to that of a witness and under Briscoe and

its predecessors entitled the psychologist to immunity from a section 1983 lawsuit.




1 (Id. at 1458) The court noted that psychologists must be able to perform the tasks

2 necessary to achieve the goal of determining what is best for the child without the

3 "worry of intimidation and harassment from dissatisfied parents." (Id.)

4 The functions of a court-appointed 730 expert are "to investigate, to render a

5 report as may be ordered by the court, and to testify as an expert at the trial of the

6 action relative to the fact or matter as to which the expert evidence is or may be

7 required." (California Evidence Code section 730.) Because it is plain from the face

8 of the Complaint that Dr. DOYNE was engaged in judicial or quasi-judicial acts, and

9 that he was not acting in the clear absence of all jurisdiction, he is immune from

10 damages. (Id. at 1394.)

11 E. Dr. DOYNE is Immune from Liability Based Upon Reports of

12 Suspected Child Abuse

13 Dr. DOYNE is legally obligated by California Penal Code section 11166 to

14 report suspected child abuse as he is a mandated reported as defined by California

15 Penal Code section 11165.7(21). To the extent that the amended complaint alleges

16 that Dr. DOYNE was negligent or otherwise culpable in reporting suspected child

17 abuse of Mr. STUART's son, Dr. DOYNE is immunized from liability by California

18 Penal Code section 11172, which provides that "no mandated reporter shall be

19 civilly or criminally liable for any report required or authorized by this article ... "

20 To the extent that paragraph 817 of the amended complaint alleges that Dr. DOYNE

21 was culpable based upon Dr. DOYNE's report of suspected child abuse, Dr.

22 DOYNE is immune from liability.

23 F. Plaintiffs' Complaint Fails To Establish The Elements of A Civil

24 RICO Claim.

25 The elements of a civil Racketeering Influenced and Corrupt Organizations

26 Act ("RICO") are as follows: "(1) conduct (2) of an enterprise (3) through a pattern

27 (4) of racketeering activity (known as predicate acts) (5) causing injury to plaintiffs

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business or property." (United Bhd. of Carpenters & Joiners of Am. v. Bldg. &

Constr. Trades Dep't, 911 F. Supp. 2d 1118, 1124 (E.D. Wash. 2012).) As set forth

in the omnibus motion to dismiss, the amended complaint fails to adequately plead

predicate acts, and it also fails to plead the existence of an enterprise. The Supreme

Court in United States v. Turkette noted that an enterprise is "proved by evidence of

an ongoing organization, formal or informal, and by evidence that the various

associates function as a continuing unit." (United States v. Turkette, 452 U.S. 576,

583 (U.S. 1981).) Here, there is no enterprise. The complaint fails to allege

sufficient facts demonstrating the existence of a continuing unit separate and apart

from the ambiguously alleged predicate acts, and thus the elements of a RICO claim

cannot be met.

4. CONCLUSION

For the reasons set forth above, the motion to dismiss of Dr. DOYNE should

be granted without leave to amend.

DATED: April 10,2014 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP

By CHRIST PHER 1. ZOPAITI JOAN E. 1RIMBLE Attorn,~ys for Defendant, STEPHEN E. DOYNE, PH.I!: and STEPHEN E. DOYNE, A.P .L.

G:\ACE\0130009\Mtns\Mot. to Dismiss - Doyne\Doyne Mot to Dismiss P&A.docx




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DEFENDANTS’ JOINDER AND SUPPLEMENT TO OMNIBUS MOTION TO DISMISS FIRST AMENDED COMPLAINT

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James R. Rogers/SBN 99102 [email protected] Keith E. Zwillinger/SBN 99216 [email protected] LAW OFFICES OF JAMES R. ROGERS 125 S. Highway 101, Suite 101 Solana Beach, CA 92075 Telephone: 858-792-9900 Facsimile: 858-792-9509 Attorneys for Defendants LORI LOVE; LARRY CORRIGAN; LOVE & ALVAREZ PSYCHOLOGY, INC.



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., Plaintiffs, v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., Defendants. ________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 13-CV-1944 CAB (BLM) [Hon. Cathy Ann Bencivengo] DEFENDANTS' JOINDER AND SUPPLEMENT TO OMNIBUS MOTION TO DISMISS FIRST AMENDED COMPLAINT Date: June 6, 2014 Time: 2:00 p.m. Courtroom: 4C Trial Date: None NO ORAL ARGUMENT UNLESS REQUESTED BY COURT

Defendants LARRY CORRIGAN ("Corrigan"), LORI LOVE and LOVE & ALVAREZ PSYCHOLOGY, INC. (collectively "Love") respectfully submit the following Joinder and Supplement to Omnibus Motion to Dismiss First Amended Complaint.


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The supplemental briefing of Corrigan and Love is limited to two issues: (1) the statute of limitations; and (2) Corrigan and Love are not state actors.

I. PLAINTIFFS' ACTION IS TIME-BARRED

(SECTION III OF OMNIBUS MOTION COMMENCING PAGE 9, LINE 4 TO PAGE 10,

LINE 27)

A. Summary of Relevant Pleadings Reading and trying to digest and understand the allegations set forth in plaintiffs' 251 page first amended complaint is certainly a linguistic challenge; however, the gist of the alleged claims against Corrigan and Love can be broken down into the following primary rights: (1.) tortious injury to the person and tortious injury to personal property. The theories of recovery are varied and cover the whole spectrum of potential torts starting with ordinary negligence followed by professional negligence and ending with intentional torts.

As more fully set forth below, it does not matter which primary right or theory of recovery is alleged they are all time barred by either a one or two year limitation period.

Below is a brief summary of the allegations set forth in plaintiff’s 251 page complaint.

COUNT ONE--Assault; COUNT TWO--Assault, Wrongful Inducement to Breach Contract,

Interference with Economic Relations, Defamation and Intentional Infliction of Emotional Distress;

COUNT THREE--Malicious Prosecution; COUNT FOUR--Obstruction of Justice [not alleged against Love or

Corrigan]; COUNT FIVE--Obstruction of Justice [not alleged against Love or

Corrigan];


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COUNT SIX--Supervisory Liability [not alleged against Love or Corrigan]; COUNT SEVEN--Municipal Liability [not alleged against Love or

Corrigan]; COUNT EIGHT--Respondeat Superior [not alleged against Love or

Corrigan]; COUNT NINE--Conspiracy to Interfere with Rights U.S.C. § 1985 Under

Color of Law (state actors claim); COUNT TEN--Failure to Prevent or Aide in Preventing Deprivation of

Constitutional Rights Under 42 U.S.C. § 1986 (state actors claim incorporating allegations of COUNTS ONE, THREE, FOUR, FIVE, SIX and SEVEN);

COUNT ELEVEN—Doyne Terrorism Claim pursuant to 42 U.S.C. 1983 [not alleged against Love or Corrigan];

COUNT TWELVE--Deprivation of Substantive Due Process pursuant to 42 U.S.C. § 1983 Against "Color of Law" Defendants (state actors claim);

COUNT THIRTEEN--Trespass pursuant to 42 U.S.C. § 1983 against each defendant (state actors claim);

COUNT FOURTEEN--Unjust Enrichment [not alleged against Love or Corrigan];

COUNT FIFTEEN--False Designation of Origin, False Description under 15 U.S.C. § 1125 [no factual specifics alleged against Love or Corrigan]; and alleged RICO violations based upon kidnapping and other personal injury type of claims.

As can be gleaned from the above the following COUNTS are not alleged against Love or Corrigan: FOUR, FIVE, SIX, SEVEN, EIGHT, ELEVEN AND FOURTEEN. That leaves COUTS ONE, TWO, THREE, NINE, TEN, TWELVE, THIRTEEN AND FIFTEEN that are alleged against Love and Corrigan.

The following COUNTS are governed by the one year limitation period under California Code of Civil Procedure section 340(c): COUNT ONE AND


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COUNTS NINE, TEN AND TWELVE (to the extent they are based on false imprisonment). To the extent any claim is based on professional negligence they are also subject to a one year limitation period under California Code of Civil Procedure section 340.5.

The following COUNTS are governed by a two year limitation period under either Code of Civil Procedure section 339(1) or California Code of Civil Procedure section 335.1: COUNT TWO and COUNTS THREE, THREE, NINE, TEN, TWELVE, THIRTEEN AND FIFTEEN.

B. Claims Based on Defamation and False Imprisonment Pursuant to California Code of Civil Procedure section 340(c), "[a]n action for libel, slander, false imprisonment . . . [shall be brought] [w]ithin one year. . . ." Shively v. Bozanich, (2003) 31 Cal.4th 1230, 1246-47. Moreover, in a claim for defamation, as with other tort claims, the period of limitations commences when the cause of action accrues. California Code of Civil Procedure section 312; Norgart v. Upjohn Company, (1999) 21 Cal.4th 383, 395-396. An action accrues at the time of injury, and a cause of action for defamation accrues at the time the defamatory statement is "published." Bernson v. Browning-Ferris Industries, Inc., (1994) 7 Cal.4th 926, 931; Jolly v. Eli Lily & Co., (1988) 44 Cal.3d 1103, 1109. It likewise holds true that a claim for false imprisonment occurs on the date of the alleged false imprisonment. In this case, that occurred on April 15, 2010 during the SDCBA seminar.

C. Causes of Action for Interference with Contract and Economic Interest are Governed by the Two Year Statute Pursuant to California Code of Civil Procedure section 339(1) A cause of action for interference with contract is governed by a two year statute of limitations. Code of Civil Procedure section 339, subd. (1); Kolani v. Gluska, (1998) 64 Cal.App.4th 402, 408; Trembath v. Digardi, (1974) 43 Cal.App.3d 834, 836. The general rule is that such cause of action accrues at the


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time of the actual breach. Trembath v. Digardi, supra, 43 Cal.App.3d at p. 836. Similarly, an action for interference with economic interest is subject to the two year statute of limitations set forth in Code of Civil Procedure section 339(1). Agusta v. United Service Automotive Assn., (1993) 13 Cal.App.4th 4, 10.

D. Theories of Recovery Based Upon Assault, Intentional Infliction of Emotional Distress and Malicious Prosecution Governed by Two Year Statute Set Forth in Code of Civil Procedure section 335.1 Plaintiffs' theories of recovery based on assault and battery or injury to an individual are subject to a two year statute of limitation pursuant to California Code of Civil Procedure section 335.1. This section provides that an action must be brought "[w]ithin two years; an action for assault, battery, or injury to, or the death of, an individual caused by the wrongful act or neglect of another." Accordingly, all claims based on these theories of recovery are time-barred. Similarly, section 335.1 applies to claims based upon malicious prosecution. Stavropoulos v. Superior Court, (2006) 141 Cal.App.4th 190, 197. The seminal event that triggered and provided the foundation to all of plaintiff’s claims was the April 15, 2010 SCBA seminar. Thus, based upon the foregoing all of the counts or claims asserted against Love and Corrigan procedurally expired no later than April 15, 2012. The subject complaint was first filed on August 20, 2013, more than three years after the seminar.

II. DEFENDANTS CORRIGAN AND LOVE ARE NOT STATE ACTORS (SEE OMNIBUS MOTION SECTION VI(A.) AT PAGE 13 COMMENCING LINE 9 TO

PAGE 14, LINE 18)

COUNTS NINE, TEN, TWELVE AND THIRTEEN are alleged state actor claims alleged against Love and Corrigan. In order to be found liable in a state actor claim a party must be acting under color of state law. Sturm v. El Camino


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Hosp. (2010) 2010 U.S. Dist. LEXIS 17406, 3 [citing Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000)].

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…” (42 U.S.C. § 1983).

A private party “may be found to be a state actor” only if “its conduct is ‘chargeable to the state.’ Sturm v. El Camino Hosp. at 3 [citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937]. The Supreme Court has articulated four separate tests for determining whether or not a “private party’s conduct constitutes state action: (1) the state compulsion test, (2) the public function test, (3) the joint action test, and (4) the governmental nexus test.” Id. Each of those tests and their applicability to the facts alleged by plaintiff are set forth below.

The State Compulsion Test Under this test, a private individual may be found to have acted under color of state law “only when [the State] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, (1982) 457 U.S. 991, 1004. The Blum court further stated that the “’mere fact that a business is subject to state regulation does not by itself convert its action into that of the State…’” Id. [citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350.] Plaintiff merely alleges that Love and Corrigan are licensed psychologists who participated as panel members at the SDCBA seminar and as such were acting as agents of the SDCBA. (Paragraphs 39, 50 and 51 of plaintiff’s Complaint). There are no allegations that even remotely suggest that any State


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agency “exercised coercive power or . . . provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, (1982) 457 U.S. 991, 1004. Thus, the alleged acts or omissions of Love and Corrigan cannot be deemed to be state action under the state compulsion test.

The Public Function Test State action may be found to be present where a private entity exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352. The Jackson court held that not even the provision of public utility services was a function of the state, even though regulated utilities had a clear statutory obligation to furnish such services. Id. at 353. Rather, the Jackson court found that merely performing a function “that serves the public is insufficient to make the private entity’s conduct state action.” Sturm v. El Camino Hosp. at 6. Indeed, the Sturm court, supra, held that even “detaining plaintiff for mental health treatment and evaluation” did not involve an exercise of “power that is ‘traditionally the exclusive prerogative of the State.’” Sturm v. El Camino Hosp. at 8 [citing Caviness v. Horizon Comty. Learning Ctr., Inc., 590 F.3d 806.] The case presently before this Court is even more removed from what could possibly be considered State action. Defendants are private individuals presenting at a local bar association seminar. Thus, under the public function test, Love and Corrigan cannot be deemed to have been a State actor for purposes of any alleged State action claim.

The Joint Action Test Pursuant to the joint action test, a “private individual may be liable under § 1983 if he or she conspired or entered joint action with a state actor.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). This test requires “a substantial degree of


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cooperation” between the private individual and state actor “before imposing civil liability for actions by private individuals that impinge on civil rights.” Id. at 445. Plaintiff does not allege any facts that could or would remotely suggest, much less establish, that Love or Corrigan did anything to cooperate with or have any “substantial degree of cooperation” with the alleged wrongful state actions that allegedly occurred at the April 15, 2010 seminar. They were merely two of the panel members who were to participate in the seminar. This certainly does not constitute the “substantial degree of cooperation” required under the joint action test. Sturm v. El Camino Hosp. at 8-9.

The Governmental Nexus Test The appropriate inquiry under the governmental nexus test to test whether or not the actions of a private person or entity can be deemed to be those of the state is whether or not “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351. Generally state action will be attributed to a private party where the state “so far insinuate[s] itself into a position of interdependence with the [private entity] that it [is] a joint participant” in the activity. Id. at 357-358. There are simply no allegations that Love or Corrigan engaged in, much less had a close nexus with, any actions that allegedly involved the State that infringed on plaintiff’s rights. Based on the foregoing Love and Corrigan cannot be held liable for any state action claim as noted above. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / /


9 ____________________________________________________________________________


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III. CONCLUSION

For the reasons set forth in the Omnibus Motion to Dismiss and, in addition, as set forth above, Plaintiffs claims are time barred and those based on state action fail to state facts sufficient to establish the right to pursue such claims against Love and Corrigan. Dated: April 11, 2014 LAW OFFICES OF JAMES R. ROGERS

James R. Rogers By: _________________________________ James R. Rogers, Esq. Attorneys for Defendants

LORI LOVE; LARRY CORRIGAN; LOVE & ALVAREZ PSYCHOLOGY, INC.









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CHARLES R. GREBING, State Bar No. 47927c gr eb in g@win gert I aw. c o mANDREW A. SERVAIS, State Bar No. 239891as erv ai s @w inger tl aw. c o mDWAYNE H. STEIN, State Bar No. 261841d s t eín @w i n g er t I aw. c o m

WINGERT GREBING BRUBAKER & JUSKIE LLPOne AmeñcaPlaza, Suite 1200600 V/est BroadwaySan Diego, CA 92101(619) 232-81 5 I ; Fax (619) 232-466s

Attorneys for DefendantsSHARON BLANCHET ANd ASHWORTH, BLANCHET, CHRISTENSEN &KALEMKIARIAN


SOUTHERN DISTRICT OF' CALIFORNIA

CALIFORNIA COALITION FORFAMILIES AND CHILDREN, a DelawareComoration. LEXEVIA. PC. a CaliforniaProfessionaf Corooratioá. and COLBERNC. STUART, an individuâl,

Plaintiffs,

Case No.: 3: I 3-cv-01 944-CAB-BLM

DEFENDANTS SHARONBLANCHET AND ASH\ryORTH,BLANCHET. CHRISTENSEN &KALEMKIAfuAN'S JOINDER TOOMNIBUS MOTION TO DISMISSPLAINTIFFS' FIRST AMENDEDCOMPLAINT, ANDSUPPLEMENTAL BRIEF INSUPPORT OF MOTION TODISMISS

vs.

SAN DIEGO COUNTY BARASSOCIATION.SAN DIEGO CO

a California CUNTY S

,S

Date: June 6, 2014Time: 2:00 o.m.Ctrm: Courtroom 4CJudge: Cathy Ann Bencivengo, Presiding

{ooó5s577.DOCX} 1

DEFEND.A,NTS ABC&K'S JOINDBR AND SUPPLEMENTAL BRJEF - Case No. 3:13-CV-01944-CAB-BLM


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BATSON. an individual; NATIONALFAMILY JUSTICE CENTER ALLIANCE,a California LISA SCHALL,

FORENSIC

{00655577.DOCX} 2

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DEFENDANTS ABC&K,S JOINDER AND SUPPLEMENTAL BRIEF,. _ CasC NO. 3:I3-CV-01944-CAB-BLM


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I .IOINDER TO OMNIBT]S MOTION To DISMISS FIRST AMENDEI)

COMPLAINT

Pursuant to the Court's February 26,2013 Order Setting Brief Scheduling, and

Local Rule 7 .l j.2, Defendants SHARON BLANCHET and ASHWORTH,

BLANCHET, CHRISTENSEN, & KALEMKIARIAN (collectively "ABC&K") hereby

join the Omnibus Motion to Dismiss Plaintiffs' First Amended Complaint filed on

behalf of all Defendants.

II. SUPPLEMENTAL BRIEF IN S RT OF'ABC&K'S MOTION TO

DISMISS F'IRST AMENDED COMPLAINT

Defendant ABC&K files this Supplemental Brief and requests the Court dismiss

the First Amended Complaint based on the following additional arguments unique to the

allegations made against ABC&K.

Plaintiff Colbem Stuart ("Stuart") sued Blanchet and ABC&K in state court in

2010. ABC&K filed an Anti-SLAPP Motion to Strike arguing Stuart's allegations

were based on protected petitioning activities. In striking Stuart's Complaint in its

entirety, the trial court found Stuart's First Amended Complaint invoked the SLAPP

statute because the "statements or conduct allegedly performed by Blanchet are

protected written or oral statements made before or in connection with the family court

judicial proceeding" and Stuart's "attempts to mask this action as a claim for legal

malpractice when the gravamen of his allegations focuses on the protected conduct of

Dr. Doyne and Judge Schall not Blanchet or her fîrm's malpractice or breach of

fîduciary duty." (RIN at Ex. 1, September 24,2010 San Diego County Superior Court

Order Striking Stuart's First Amended Complaint.)

ABC&K requests this Court dismiss Plaintiffs' FAC with prejudice because the

allegations against ABC&K have all been previously decided in state court.

Additionally, the allegations against ABC&K in the FAC are based on ABC&K's

representation of Stuart and their participation in the San Diego County Family Court

{00655s77.DOCX} J

DEFENDANTS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF - Case No.3:13-CV-01944-CAB-BLM


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system, and are thus protected petitioning activities.

A. Plaintiffs'Leeal Malpractice Claims Aeainst ABC&K are not Sustainable

1. Standard for 12lb)16) Motion to Dismiss for Failure to State a Claim

To survive a motion to dismiss under Federal Rules of Civil Procedure rule

l2(bX6), "a complaint must contain sufficient factual matter, accepted as true, to ostate a

claim for relief that is plausible on its face."' Ashcroft v. Iqbal556 U.S. 622,678

(2009) (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007)).

In ruling on a motion to dismiss, this Court may take judicial notice of matters of

public record that are not subject to reasonable dispute. Lee v. City of L.A., 250 F.3d

668, 689 (9th Cir. 2001). The Ninth Circuit has "extended the 'incorporation by

reference' doctrine to situations in which the plaintiff s claim depends on the contents of

a document, the defendant attaches the document to its motion to dismiss, and the

parties do not dispute the authenticity of the document, even though the plaintiff does

not explicitly allege the contents of that document in the complaint." See Knievel v.

ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) Accordingly, this Court may appropriately

review the pleadings and state court orders filed in Plaintiff Stuart's state court

complaint for legal malpractice against Blanchet and ABC&K. See RJN at Ex. l.

B. Counts 11. 12. 14. and 15 are State Claimç for Lesal Malpractice

"Except in matters governed by the Federal Constitution or by acts of Congress,

the law to be applied in any case is the law of the state." Erie R.R. v. Tompkins,304

U.S. 64, 78 (1933). Legal malpractice is a state law cause of action, not a federal cause

of action. See, e.g.,Aragonv. Federated Dep't Stores, \nc.,750F.2d1447,1457'58

(9th Cir. 1985), cert. denied,479 U.S. 902 (1936).

Under California law, the elements of a cause of action in tort for professional

negligence are: (1) the duty of the professional to use such skill, prudence, and diligence

as other members of his profession commonly possess and exercise; (2) breach of that

duty; (3) a proximate causal connection between the negligent conduct and the resulting

{00655577.DOCX } 4

DEFENDAI{TS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF - Case No. 3:13-CV-01944-CAB-BLM


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injury; and (4) actual loss or damage resulting from the professional's negligence.

Jaclrson v. Johnson, 5 Cal. App. 4th 1350, 1355 (1992).

Plaintiffs' claims for breach of contract and duty against ABC&K (First Amended

Complaint "FAC" at lJ'!J 808-830), which reference Stuart's 2010lawsuit for legal

malpractice against Blanchet and ABC&K, and allege unjust enrichment related to

providing attorney services, are governed by state law. (FAC at'!TlJ 901-903.)

C. State Court Claims for Lesal ractice are not Preemnted bv

Federal Law

In Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfç.,545 U.S. 308 (2005)

the United States Supreme Court developed the test for determining whether a claim

arises "under the Constitution, laws, or treaties of the lJnited States" for purposes of

federal-question jurisdiction as provided in 28 U.S.C. $ l33l (2006). In order for

federal courts to have subject-matter jurisdiction pursuant to 28 U.S.C. $ 133 1, a state-

law claim with an embedded federal question must (1) raise a stated federal issue that is

(2) actually disputed and (3) substantial, which a federal forum may entertain without

disturbing any congressionally approved balance of federal and state judicial

responsibilities. Id. at 314. In analyzing the final prong of the Grable test in the context

of legal malpractice claims, the Supreme Court has held:

The States, on the other hand, have "a special responsibility formaintaining standards among members of the licensed professions."Ohralikv. Ohio State Bar Ass'n,436U.5.447,460,98 S. Ct. 1912,56L.Ed.2d 444 (1978). Their "interest . . . in regulating lawyers is especiallygreat since lawyers are essential to the primary governmental function ofadministering justice, and have historically been officers of the courts."Goldfarb v. Va, State Bar, 421 tJ.S. 773,792,95 S. Ct. 2004, 44 L. Ed. 2d

572 (1975) (internal quotation marks omitted).

Gunn v. Minton, 133 S. Ct. 1059, 1068 (2013).

Plaintiffs' claims against ABC&K are based on alleged negligence in their

representation of Stuart in his divorce proceeding. As the basis for these claims,

Plaintiffs attach Stuart's state court complaint against ABC&K for legal malpractice.

{006s5577.DOCX} 5

DEF'ENDANTS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF - CASE NO.3:13.CV-01944-CAB-BLM


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(^See Exhibit 14 to FAC.) Because legal malpractice is a "field of traditional state

regulation," Plaintifß must show any federal claims against ABC&K are substantial.

They have failed to do this because their claims against ABC&K are based solely on

state legal malpractice claims. Thus, there is no federal law preemption in this case, and

California law must be applied to Plaintifß' claims against ABC&K.

D. Plaintiffs'Legal Malpractice Claims are Barred bv the One-Year

Statute of Limitations

An action, other than for actual fraud, against an attorney arising out of the

performance of professional services must be commenced "within one year after the

plaintiff discovers, or through the use of reasonable diligence should have discovered,

the facts constituting the wrongful act or omission, or four years from the date of the

wrongful act or omission, whichever occurs first." Lockton v. O'Rourke, 184

Cal.App.4th 1051,1062 (2010); Cal. Civ. Proc. Code $ 3a0.6(a). An action for fraud or

mistake must be filed within three years of discovering the underlying facts of the claim.

Atfaro v. Cmty. Hous. Improvement Sys. & Planning Ass'n,171 Cal.App.4th 1356, l39l

(2009) (Cal. App. 6th Dist. 2009)

Counts Il, 12, 14, and 15, are all based on Stuart's retention of Doyne, Inc.

during his divorce proceedings, during which ABC&K represented S¡rart. Stuart hired

Doyne in September 12,2008. (FAC at 1|fl 812-813.) Plaintiffs filed the original

Complaint in this action on August20,2013 (and filed the FAC on January 9,2014),

almost five years later. Thus, the legal malpractice claims are barred by the one-year

statute of limitations. To the extent any of these claims meet the pleading standard for

fraud causes of action; they are also barred by the three-year fraud statute of limitations.

Plaintiffs' legal malpractice and fraud claims against ABC&K must be dismissed

with prejudice because they are barred by the applicable statutes of limitation.

{00655577,DOCX} 6

DEFENDANTS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF _ CaSC NO. 3:13-CV-O1944.CAB.BLM


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E. Plaintiffs'Lesal Malnractice Claims are Barred bv Res .fudicata

because They were Alreadv Decided in State Court

In California, "[r]es judicata bars the litigation not only of issues that were

actually litigated in the prior proceedin g, but also issues that could have been lítigated

in that proceeding." Zevnik v. Superior Court, 159 Cal. App. 4th 7 6, 82 (2008)

(emphasis added). If, "two actions involve the same injury to the plaintiff and the same

wrong by the defendant then the same primary right is at stake even if in the second suit

the plaintiff pleads different theories of recovery, seeks different forms of relief and/or

adds new facts supporting recovery." Eichman v. Fotomat Corp.,l47 Cal. App. 3d

rl70, tr74 (1983).

Plaintiffs' claims against ABC&K are barred by res judicata because they were

decided in state court. The allegations in Stuart's 2010 lawsuit against ABC&K for

legal malpractice arise out of Stuart hiring Doyne in 2008 as his family court mediator.

(Exhibit 14 to FAC at llï l1-1S.) Similarly, Plaintiffs' allegations of breach of duties in

the current FAC arise out of Sfuart's same retention of Doyne in 2008. (FAC at lJtT 843-

847,857-861,862-866,870-871,872,889-895.) These are the exact same allegations.

These same allegations were analyzed and decided against Stuart in the trial court's

ruling on ABC&K's Anti-SLAPP Motion to Strike. The trial court unambiguously

ruled Stuart's claims against ABC&K could not go forward because they were based on

protected activity. On this basis, the trial court deemed Stuart's lawsuit stricken in its

entirety, without leave to amend. (RIN at Ex. 1.)

Plaintiffs in this case cannot re-litigate the exact same issues already decided

against Stuart in his 2010 complaint against ABC&K. Each of the federal claims

asserted in Plaintiffs' FAC should have been brought as part of the 2010 state court

lawsuit because they arise out of the same facts: ABC&K's representation of Stuart in

his divorce proceedings.

{0065s577,DOCX } 7

DEFENDANTS ABC&K'S JOINDER A¡ID SUPPLEMENTAL BRIEF - Case No.3:13-CV-01944-CAB-BLM


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tr'. Plaintiffs are Barred from Claiming State Court Judement Violates

Their Federal Rishts

Further, Plaintiffs are attempting to re-litigate Stuart's unsuccessful state-court

action in federal court. When asserting a state-court claim in federal court, a losing

party may not "seekf ] what in substance would be appellate review of the state

udgment in a United States district court, based on the losing party's claim that the state

itself violates the loser's federal rights." Johnson v. De Grandy,5l2 U.S.

997, r00s-06 (1994).

Nonetheless, this is exactly what Plaintifß are trying to accomplish. The FAC

goes to great lengths to create a civil and criminal conspiracy between the state court

judicial system and the attorneys who worked on any matter decided against Stuart. The

facts alleged against ABC&K are based on their family court representation of Stuart.

Plaintiffs even go as far as attaching Stuart's 2010legal malpractice lawsuit as evidence

of the conduct alleged against ABC&K in the current lawsuit. The FAC should be

dismissed with prejudice because Plaintiffs cannot have their state-court claims reheard

in federal court

G. The rYoerr-Pe¿¿1¿gl¿¿ Doctrine Presents a Separate Bar

l. ABC&K Consist

The Noerr-Pennington doctrine provides that "those who petition any department

of the govemment for redress are generally immune from statutory liability for their

petitioning conduct ." Sosa v. DIRECTV, Inc., 437 F .3d 923, 929 (9th Cir. 2006).

Because the doctrine includes protection for access to courts, the Supreme Court

extended the doctrine to provide immunity for the use of "'the channels and procedures'

of state and federal courts to advocate causes.' ' Sos;a, 437 F .3d, at 929-30 (quoting Cal.

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 5 10- 1 | (1972)). Federal courts

have determined that the Noerr-Pennington doctrine is analogous to California's Anti-

SLAPP statute and applies to protect defendants whose alleged conduct invokes the

{00ó5ss77.Docx} 8

DEFENDANTS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF - Case No.3:13-CV-01944-CAB-BLM


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right to petition the government for a redress of grievance s. Kearney v. Foley &

Lardner,553 F. Supp. 2d 1178,1,181 (S.D. Cal. 2008).

InBE&K Constr. Co. v. NLRB,536 U.S. 516 (2002), the Supreme Court adopted

a three-part test to determine whether the defendant's conduct is immunized: (1)

identify whether the lawsuit imposes a burden on petitioning rights, (2) decide whether

the alleged activities constitute protected petitioning activity, and (3) analyze whether

the statutes at issue may be construed to preclude that burden on the protected

petitioning activity. BE&K Constr. Co.,536 U.S. at 530-33, 535-37.

On their face, Plaintiffs' allegations against ABC&K fall within the Noerr-

Pennington protection because all three prongs of the test are met. The first and second

prongs are met because ABC&K's petitioning rights would be burdened if they were

held liable for complying with the terms of decrees of the San Diego Superior Court

Domestic Division in their representation of Stuart in his divorce proceedings.

Further, Plaintifß have not alleged any facts against ABC&K which fall outside

of protected petitioning activity. The allegations in the FAC and judicially noticed

documents establish ABC&K's conduct was directly linked to the representation of

Stuart in his divorce proceedings. The Ninth Circuit has held, "in the litigation context,

not only petitions sent directly to the court in the course of litigation, but also 'conduct

incidental to the prosecution of the suit' is protected." Sosa,437 F.3d at 934.

Finally, the third prong is met because Plaintiffs' vague allegations of incoherent

RICO claims do not allow Plaintifß to circumvent the protection for petitioning activity.

In Sosa, the court described a similar RICO suit predicated on "fraudulent discovery

conduct in prior litigation that induced the plaintiffs to settle the suit for a lower amount

than they would have in the absence of the fraud." Id. at 940. Taken as true, Plaintiffs'

allegations that ABC&K's representations induced Stuart to hire Doyne are protected:

[V/]e hold that RICO and the predicate statutes at issue here do not peTmit

the maintenance of a lawsuit for the sending of a prelitigation demand to

settle legal claims that do not amount to a sham. Because the,demand

letters at issue here sought settlement of claims against Sosa under the

{00655s77.DOCX} 9

DEFENDANTS ABC&K,S JOINDER AND SUPPLEMENTAL BRIEF - CASC NO.3:13-CV.01944-CAB-BLM


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Federal Communications Act, and no sham is claimed, they cannot formthe basis of liability under RICO.

Id. at942.

For all of these reasons, Plaintifß' claims, which seek to impute protected

petitioning activity, are barre dby Noerr-Pennington do,ctnne, and Plaintiffs' First

Amended Complaint should be dismissed with prejudice.

III. COI\CLUSIOI{

For the above reasons, Defendants Sharon Blanchet and ABC&K request the

Court dismiss Plaintiffs' First Amended Complaint with prejudice

Dated: April ll,2014


WINGERT GREBING BRUBAKER & JUSKIELLP

By: s/ Charles R. g

CHARLES R. GREBINGANDREW A. SERVAISDWAYNE H. STEINAttornevs for DefendantsSHARÕN BLANCHET ANdASHWORTH. BLANCHET"CHRISTENSÉN & KALEMKIAzuANEmail : cgre aw.comEmail:Email:

aw.comv/.comds

{00655577.DOCX } 10

DEFENDAI\TS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF _ CASC NO.3:13-CV.01944-CAB.BLM


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CHARLES R. GREBING, State Bar No. 47927c gr eb ing@w ing er tl aw, c o mANDREW A. SERVAIS, State Bar No. 239891as erv øi s @w in ger tl aw. c omDWAYNIE H. STEIN, State Bar No. 261841ds t e ín@w ing er tl aw. c o m

WINGERT GREBING BRUBAKER & JUSKIE LLPOne AmericaPlaza" Suite 1200600 West BroadwaySan Diego, CA 92101(619) 232-81 5 1 ; Fax (619) 232-466s

Attorneys for Defendant, NATIONAL FAMILY JUSTICE CENTER ALLIANCE

UI{ITED STATES DISTRICT COURT


CALIFORNIA COALITION FOR Case No. : 3 : I3-Iv-01944-CAB-BLM

Plaintifß,

VS.

SANI DIEGO COUNTY BARASSOCIATION, a California Corporation;SAN DIEGO COLTNTY SFIERIFF'S

DEFENDANT NATIONAL FAMILYJUSTICE CENTER ALLIAI{CE'SJOINDER TO OMNIBUS MOTIOI{TO DISMISS PLAII{TIFFS' FIRSTAMET\DED COMPLAINT, ANI)SUPPLEMENTAL BRIEF INSUPPORT OF MOTIOI{ TODISMISS

June 6,20IDate:Time:Ctrm:

4

4C2:00 .m.

Judge: Cathy Ann Bencivengo, Presiding

{00655578.DOCX} 1

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Defendants.

{00655s78.DOCX} 2

DEF.ENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF _ CAse NO. 3:I3-CV-01944-CAB-BLM


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I .IOINDR, RTc)OMNIBU S MOTION TO DI SS F'IRST NI)ED

COMPLAINT

Pursuant to the Court's February 26,2013, Order Setting Brief Scheduling, and

Local Rule 7.1j.2,Defendant NATIONAL FAMILY JUSTICE CENTER ALLIANCE

("Alliance") hereby joins the Omnibus Motion to Dismiss Plaintiffs' First Amended

Complaint filed on behalf of all Defendants.

II. SUPPLEMENTAL F'IN SUPP OF CE'S MOTION TO

DISMISS FIRST AMENDED COMPLAINT

Defendant Alliance files this Supplemental Brief and requests the Court dismiss

the First Amended Complaint ("FAC") because the allegations against Alliance in the

FAC are based on Alliance's participation in the San Diego County Family Court

system, and arethus protected petitioning activity.

A. The ninston ctrine Bars the Claims Asainst Alliance

1. The Allesations As Alliance Cons st of Protected tv


of the government for redress are generally immune from statutory liability for their

petitioning conduct ;' (Sosa v. DIRECTV, Inc, (9th Cir. 2006) 437 F .3d 923, 929.)


extended the doctrine to provide immunity for the use of "'the channels and procedures'

of state and federal courts to advocate causes." (Id. atpp.929-930, quoting Califurnia

Motor Transport Co. v. Trucking Unlímited (Ig72)404 U.S. 508, 510-511.) Federal

courts have determined that fhe Noerr-Pennington doctrine is analogous to California's

anti-SLAPP statute and applies to protect defendants whose alleged conduct invokes the

right to petition the government for a redress of grievances. (Keørney v. Foley &

Lqrdner (S.D.Ca1. 2008) 553 F.Sup p.2d 1178, 1181 .)

In BE&K Constr. Co. v. NLRB (2002) 536 U.S. 516,525,the Supreme Court

adopted a three-part test to determine whether the defendant's conduct is immunized:

(1) identiSr whether the lawsuit imposes a burden on petitioning rights, (2) decide

{00655578.DOCX) J

DEF'ENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF_ CASE NO.3:13-CV-01 944-CAB-BLM


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whether the alleged activities constitute protected petitioning activity, and (3) analyze

whether the statutes at issue may be construed to preclude that burden on the protected

petitioning activity . (Id. atpp.530-533, 535-537 .)

The allegations against Alliance are based on its participation in the San Diego

Family Court system. The FAC alleges Alliance assists in the drafting of domestic

violence orders (FAC atll463.) The FAC alleges Alliance operates as legal advisors to

victims of domestic violence, and assists the completion of the necessary domestic

violence forms. (FAC at TtT907-908.) Finally, the FAC alleges Alliance's participation

in the "Family Law Community" makes it privy to a conspiracy to harass and abuse

Plaintiffs. (FAC at llfl 931,938, 97 5.)

On their face,Plaintifß' allegations against Alliance fall within The Noerr-

Pennington'proteclion because all three prongs of the test are met. First, it cannot be

questioned that Alliance's petitioning rights would be burdened if they were held liable

for providing assistance to victims of domestic violence pursuant to the dictates of the

San Diego Superior Court Domestic Division. This is the exact type of activity

protected by Noeru-Pennington. Alliance's petitioning activities would unquestionably

be burdened if they could be held liable under RICO or for federal civil rights violations

for assistance given to victims as part of their assigned role in the San Diego Superior

Court Domestic Division. Being held liable for providing this assistance would clearly

hinder Alliance's ability to act in accordance with the procedures of the family court

system.

Second, Plaintiffs' have not alleged any facts against Alliance which fall outside

of protected petitioning activity. The allegations in the FAC establish Alliance's

conduct was directly linked to its general participation in the San Diego Superior Court

Domestic Division. The Ninth Circuit has held, "the law of this circuit establishes that

communications between private parties are sufficiently within the protection of the

Petition Clause to trigger the l{oeru-Pennington doctrine, so long as they are sufficiently

related to petitioning activity." (,Sos a v. DIKECTV, Inc., supra, 437 F.3d at p. 935.)

4{00655578.DOCX}

DEFENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF - CASC NO. 3:13-CV-01944-CAB.BLM


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Furthermore, "in the litigation context, not only petitions sent directly to the court in the

course of litigation, but also 'conduct incidental to the prosecution of the suit' is

protected ." Qd. at p. 934.)

Finally, Ninth Circuit authority has made clear that, under these circumstances,

the RICO statute cannot be construed to preclude the burden on this petitioning activity.

(Sosa v. DIRECTV, Inc., suprq) 437 F.3d atp,933.) Plaintiffs' vague allegations that

Alliance was somehow indirectly involved in certain misrepresentations changes

nothing. In Sosø, the court described a similar situation of a RICO suit predicated on

"fraudulent discovery conduct in prior litigation that induced the plaintifß to settle the

suit for a lower amount than they would have in the absence of the fraud." Qd, af p.

g40.) Taken as true, Plaintifß' non-specific allegations that Alliance has made

misrepresentations as part of its role in the San Diego Family Court system are

protected:

[IV]e hold that RICO and the predicate statutes at issue here do not permit

the maintenance of a lawsuit for the sending of a prelitigation demand to

settle legal claims that do not amount to a sham. Because the demand

letters at issue here sought settlement of claims against Sosa under the

Federal Communications Act, and no sham is claimed, they cannot form

the basis of liability under RICO.

(Sosø v. DIRECTV, Inc., suprq) 437 F .3d at p. 942.)

Thus, Plaintifß' claims against Alliance, which seek to impute protected

petitioning activity, arebarredby Noerc-Penningtorz doctrine, andthe FAC should be

dismissed with prejudice,

5{00655578.DOCX}

DEFENDANT NFJCA,S JOINDER AND SUPPLEMENTAL BRIEF - CASE NO. 3:13-CV-01944.C48-BLM


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III. CONCLUSION

For the above reasons, Defendant National Family Justice Center Alliance

requests the Court dismiss Plaintiffs' First Amended Complaint with prejudice.

Dated: April II,2014



By: s/ Chqrles R. GrebinsCHARLES R. GREBINGANDREW A. SERVAISD\MAYNE H. STEINAttornevsFAMILY

for Defendan NATIO}{ALJUSTICE ALLIANCE

Email : cgreb aw.comEmail : aservals w.comEmail: .com

{00ó55578.DOCX} 6

DEFENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF _ CasE NO. 3:13.CV-01944-CAB-BLM


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CHARLES R. GREBING, State Bar No. 47927c gr e b in g@w ínger tl aw. c omANDREW A. SERVAIS, State Bar No. 239891a s erv ai s @w in ger tl aw. c om

DWAYNE H. STEIN, State Bar No. 261841ds t ein@w in ger tl øw. c om

WINGERT GREBING BRUBAKER & JUSKIE LLPOne AmericaPlaza, Suite 1200600 West BroadwaySan Diego, CA 92101(619) 232-815 1 ; Fax (619) 232-466s

Attorneys for DefendantsLORI CLARK VIVIANO ANd LAW OFFICES OF LORI CLARK VIVIANIO



CALIFORNIA COALITION FORFAMILIES AND CHILDREN, a DelawareComoration. LEXEVIA. PC, a CaliforniaProfessionaf Corporation, and COLBERNC. STUART, an individual,

Plaintiffs,

Case No. : 3 : 1 3- :v-01944-CAB-BLM

DEFEI{DANTS LORI CLARKVIVIANO AND LAW OFFICES OFLORI CLARK VIVIANO'S JOINDERTO OMNIBUS MOTION TODISMISS PLAINTIFFS' FIRSTAMEI{DED COMPLAINTO ANDSUPPLEMENTAL BRIEF INSUPPORT OF MOTION TODISMISS

VS

SAN DIEGO COUNTY BARAS SOCIATION, a California Corpo-ration;SAN DIEGO COLINTY STTERIFF'SDEPARTMENT. a municipal entity;WILLIAM D. GORE, an individual,;COLINTY OF SAN DIEGO, a municipalentitv; SUPERIOR COURT OF SAN -

DIEGO COLTNTY, a munlcipal entity;ROBERT J. TRE|ITACOSTSA, anindividual; MICHAEL RODDY, anindividual; JUDICIAL COLINCIL, amunicioal entitv: ADMINISTRATIVEOFFICE oF TfIÍl CouRTS, a municipalentitv; TANI G. CANTIL-SAKAUYE, anindiíidual; COMMISSION ON JLIDICIALPERFORMANCE. a municipal entitv;LAWRENCE J. SÍMI, an individual;BRADBATSON, an individual; NATIONAL

Date:Time:Ctrm:Judge

June 6, 20142:00 n.m.Courtroom 4CCathy Ann Bencivengo, Presiding

{00655579.DOCX} 1

DEFENDANTS' VIVIANO JOINDER AND SUPPLEMENTAL BRIEF - Case No. 3:13-CV-01944-CAB-BLM


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FAMILY JUSTICE CENTER ALLIANCE,a California LISA SCHALL,

FORENSIC INS

{oo655579.DOCX} 2

DEFENDANTS, VIVIANO JOINDER AND SUPPLEMENTAL BRIEF - CasC NO. 3:13-CV.01944-CAB-BLM


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I. JOINDER OMNIBUS MOTIO TO DISMISS FIRST AMENDEI)

COMPLAINT

Pursuant to the Court's February 26,2013 Order Setting Brief Scheduling, and

Local Rule 7 .I j.2,Defendants LORI CLARK VIVIANO and LAW OFFICES OF'

LORI CLARK VIVIANO (collectively "Viviano") hereby join the Omnibus Motion to

Dismiss Plaintifß' First Amended Complaint filed on behalf of all Defendants.

il. SUPP AL BRIEF IN ST]PPORT OF VIVIANO'S M ON TO

DISMISS FIRST AMENDED COMPLAINT

Defendant Viviano files this Supplemental Brief and requests the Court dismiss

the First Amended Complaint based on the following additional arguments unique to the

allegations made against Viviano.

Plaintiff Colbern Stuart's ("Stuart") First Amended Complaint ("FAC") fails to

allege any conduct specif,rc to Viviano except that in 2007 she billed Plaintiff Stuart for

legal services on his behalf. Notably, the FAC is silent on the nature of the legal

services Viviano performed, or the basis for Viviano's liability related to her work for

Plaintiff Stuart in his divorce proceeding. Each allegation in the FAC against Viviano

is based on her role as attorney for Stuart in his divorce proceeding.

A. o are s for

Malpracticeo'Except in matters governed by the Federal Constitution or by acts of Congress,

the law to be applied in any case is the law of the state." (Erie Railroad Co, v.

Tompkins (1933) 304 U.S. 64,78.) Legalmalpractice is a state law cause of action, not

a federal cause of action. (See, e.g., Aragon v. Federated Dep't Stores, Inc. (9th Cit.

1985) 750 F.2d 1447, 1457-1458, cert. denied,479 U.S. 902.)

Under California law, the elements of a cause of action in tort for professional

negligence are: (1) the duty of the professional to use such skill, prudence, ffid diligence

as other members of his profession commonly possess and exercise; (2)breach of that

{oo655579.DOCX} J

DEF.ENDANTS' VIVIANO JOINDER AND SUPPLEMENTAL BRIEF _ CAsE NO. 3:13-CV-01944-CAB.BLM


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duty; (3) u proximate causal connection between the negligent conduct and the resulting

injury; and (4) actual loss or damage resulting from the professional's negligence.

(Jacksonv. Johnson (1992) 5 Cal.App.4th 1350, 1355.)

The allegations in the FAC against Viviano are state claims for legal malpractice

because they relate to Viviano's representation of Stuart in his divorce proceeding. The

FAC alleges Viviano is an attorney who works with co-defendants as part of the San

Diego Family Court community (FAC at lTT 47,50, and 55). As part of her

representation of Stuart in his divorce proceeding, the FAC alleges Viviano was unjustly

enriched when Stuart paid her for her legal services. (FAC at IT 901-903.)

The FAC further alleges Viviano is part of the "STUART AHCE" which,

although confusingly pleaded, relates to the retention of co-defendant Doyne in Stuart's

divorce proceeding. (FAC at T'1T g44-g45.) Finally, the FAC alleges Viviano was a

participant in a conspiracy to kidnap his child and commit extorlion, as part of

Viviano's representation of him in his divorce proceeding. (FAC at TT 1005, 1064,

toTs-r081.)

Each allegation in the FAC made against Viviano relates to alleged breaches of

the standard of care in Viviano's representation of Stuart in his divorce proceeding.

Thus, each of these allegations is a claim for legal malpractice.

B. State Court Claims for Lesal Malpractice are not preempted bv

Federal Law

In Grable & Sons Metal Products, Inc. v, Darue Engíneering & Manufacturing

(2005) 545 U.S. 308 the LJnited States Supreme Court developed the test for

determining whether a claim arises "under the Constitution, laws, or treaties of the

United States" for purposes of federal-question jurisdiction as provided in 28 United

States Code section 1331. In order for federal courts to have subject-matter jurisdiction

pursuant to 28 United States Code section 133 1, a state-law claim with an embedded

federal question must (1) raise a stated federal issue that is (2) actually disputed and (3)

substantial, which a federal forum may entertain without disturbing any congressionally

{00655579.DOCX} 4

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approved balance of federal and state judicial responsibilities. (1d., ç 314.) Inanalyzing

the final prong of the Grable test in the context of legal malpractice claims, the Supreme

Court has held:

The States, on the other hand, have "a special responsibility formaintaining standards among members of the licensed professions."

(Ohratikv. Ohio State Bqr Association (1978) 436 U.S. 447,460 [98 S.Ct.

Igl2, 56 L.Ed.2d 4441) Their "interest . . . in regulating lawyers is

especially great since lawyers are essential to the primary governmental

function of administering justice, and have historically been offltcers of the

courts." (Gotdfarb v. Vírginia State Bar (1975) 421[J.5.773,792195 S.Ct.

2004, 44 L.Ed.zd 57 2l finternal quotation marks omitted] .)

(Gunn v. Minton (2013) 133 S.Ct. 1059, 1068.)

Plaintiffs' claims against Viviano are based on alleged negligence in their

representation of Stuart in his divorce proceeding. Because legal malpractice is a "field

of traditional state regulation," Plaintiffs must show any federal claims against Viviano

are substantial. They have failed to do this because their claims against Viviano are

based solely on state legal malpractice claims. Thus, there is no federal law preemption

in this case, and California law must be applied to Plaintiffs' claims against Viviano.

C. Plaintiffs' sal Malnractice ims are barred bv th One-Year

Statute of Limitations

An action, other than for actual fraud, against an attorney arising out of the

performance of professional services must be commenced "within one year after the

plaintiff discovers, or through the use of reasonable diligence should have discovered,

the facts constituting the wrongful act or omission, or four years from the date of the

wrongful act or omission, whichever occurs first." (Lockton v. O'Rourke (2010) 184

Cal.App.4th 1051,1062; Code Civ. Proc., $ 340.6(a).) An action for fraud or mistake

must be filed within three years of discovering the underlying facts of the claim. AIfuro

v. Cmty. Hous, Improvement Sys. & Planníng Ass'n (2009) l7l Cal.App.4th 1356,l39I

(Cal. App. 6th Dist. 2009)

{0065557e.DOCX} 5

DEFENDANTS' VIVIANO JOINDER AND SUPPLEMENTAL BRIEF - CASE NO. 3:13.CV-01944.C48-BLM


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Many of the allegations against Viviano relate back to Stuart's retention of

Doyne, Inc. at the time of his divorce proceedings, during which Viviano represented

Stuart. Stuart hired Doyne in September 12,2008. (FAC at TT 812-813.) Plaintiffs

filed the original Complaint in this action on August2},2013 (and filed the FAC on

January 9,2014), almost five years later. Other allegations against Viviano, although

unclearly pleaded, are related to an April 2009 hearing where the FAC alleges several

defendants conspired to kidnap Stuart's son. (See e.g. FAC at fl 1027.)

Thus, these legal malpractice claims are barred by the one-year statute of

limitations. To the extent any of these claims meet the pleading standard for fraud

causes of action, they are also barred by the three-year fraud statute of limitations.

Plaintiffs' legal malpractice and fraud claims against Viviano must be dismissed

with prejudice because they are bamed by the applicable statutes of limitation.

III. THE NOERR.PENNINGTON DO INE PRESEI{TS A E,P,ARATE

BAR

A. The Allesations Asainst Viviano Consist of Activitv


of the government for redress are generally immune from statutory liability for their

petitioning conduct ," (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F .3d 923,929.)


extended the doctrine to provide immunity for the use of "'the channels and procedutes'

of state and federal courts to advocate causes." (Id.at pp. 929-930, quoting Californía

Motor Transport Co. v, Trucking Unlimited (1972) 404 U.S. 508, 510-511.) Federal

courts have determined that the Noerr-Pennington doctrine is analogous to California's

anti-SLAPP statute and applies to protect defendants whose alleged conduct invokes the

right to petition the government for a redress of grievances. (Kearney v, Foley &

Lardner (S.D.Cal. 2008) 553 F.Supp,2d 1178, | 181 .)

In BE & K Constr. Co. v. NLRB,536 U.S. 516,525 (2002), the Supreme Court

adopted a three-part test to determine whether the defendant's conduct is immunized:

{006555?9.DOCX} 6

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(1) identifu whether the lawsuit imposes a burden on petitioning rights, (2) decide

whether the alleged activities constitute protected petitioning activity, and (3) analyze

whether the statutes at issue may be construed to preclude that burden on the protected

petitioning activity. Id. at 530-33, 535-37.

On the face of the FAC, it is difficult to determine the basis for the atrlegations

against Viviano. However, the claims asserted against Viviano are based on actions

taken by Viviano acting in an attorney-client relationship with Stuart. Count 14 alleges

Viviano was unjustly enriched through payments made by Plaintiff and Ms. Stuart

associated with Viviano's one-time role as Stuart's attorney. Similarly, the RICO

allegations against Viviano are based on invoices sent for legal work performed for

Stuart.

The facts alleged against Viviano are the exact type of activity protected by

Noerr-Pennington, and all three prongs of the test are met. First, Viviano's petitioning

activities would unquestionably be burdened if she could be held liable under RICO or

for federal civil rights violations for advice given to her own client during the litigation

of the matter for which she was retained. This would clearly hinder her ability to act

within the procedures of the family court system.

Second, Plaintiffs have not alleged any facts against Viviano which fall outside of

protected petitioning activity. The allegations in the FAC establish Viviano's conduct

was directly linked to Stuart's divorce proceedings. Furthermore, "in the litigation

context, not only petitions sent directly to the court in the course of litigation, but also

'conduct incidental to the prosecution of the suit' is protected ." Sose,437 F.3d at 934.

Hence, all the conduct alleged against Viviano is protected.

Finally, Ninth Circuit authority has made clear that, under these circumstances,

the RICO statute cannot be construed to preclude the burden on this petitioning activity.

Sosa, 437 F.3d at 933. Viviano's conduct while acting both as an attorney in the family

court and as Stuart's attorney is protected.

For all of these reasons Plaintifß' claims, which seek to impute protected

{00655579,DOCX} 7

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petitioning activity, are barre dby lt{oerr-Pennington doctrine, and Plaintiffs' First

Amended Complaint should be dismissed with prejudice.

IV CON I]SION

For the above reasons, Defendants Lori Clark Viviano and The Law Offices of

Lori Clark Viviano request the Court dismiss Plaintifß' First Amended Complaint with

prejudice.

Dated: April Il,2Al4

Re sp ectfully submitted,


By s/ Charles R. GrebinsCHARLES R. GREBINGANDREW A. SERVAISD\MAYNE H. STEINAttornevs for DefendantsLORI CTANT VIVIANO ANd LAWOFFICES OF LORI CLARK VIVIANOEmail:Email:Email:

aservalsdste

.comcom

.com

{00655579.DOCX) 8

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MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC

CASE NO.: 13-cv-01944-CAB-BLM

PESTOTNIK + GOLD LLP Timothy R. Pestotnik, State Bar No. 128919 [email protected] Russell A. Gold, State Bar No. 179498 [email protected] Russell F. Winslow, State Bar No. 245031 [email protected] 501 W. Broadway, Suite 1025 San Diego, California 92101 Tel: (619) 237-5080 Fax: (619) 342-8020

Attorneys for Defendants William Hargreaves; Hargreaves & Taylor, LLP (erroneously sued as Hargraeves & Taylor, PC); Meredith Levin; Law Offices of Allen-Slattery, Inc.; Janis Stocks; Stocks & Colburn (erroneously sued as Stocks & Colburn, a professional corporation); Carole Baldwin; Laury Baldwin; and Baldwin & Baldwin (collectively the “Lawyer Defendants”)



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.,

Plaintiffs, vs.

SAN DIEGO COUNTY BAR ASSOCIATION, et al.,

Defendants.

))))))))))))) )))))))))

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

LAWYER DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUPPLEMENTAL MOTION TO DISMISS FIRST AMENDED COMPLAINT [F.R.C.P. 8(a)(2); 9(b), 12(b)(6); 41(d)]

[SPECIAL BRIEFING SCHEDULE ORDERED; NO ORAL ARGUMENT REQUESTED]

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


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-i- MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


TABLE OF CONTENTS

Page

I. PLAINTIFFS’ FAC SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)...................................1

A. Plaintiffs’ Civil Rights Claims and California Tort Claims Against the Lawyer Defendants Are Barred by the Applicable Statutes of Limitation ............................................................................1

1. Plaintiffs’ Civil Rights Claims Pursuant to Sections 1983,1985 and 1986 Are Time Barred ................................................2

2. Plaintiffs’ California Tort Claims Are Time Barred...................2

B. Plaintiffs Fail to Allege Facts Necessary for Equitable Tolling ...........3

C. Plaintiffs’ Allegations Are Implausible Under the Twombly and Iqbal Standards......................................................................................4

1. Plaintiffs Do Not Allege Any Plausible Civil Rights Claims .........................................................................................5

a. The Lawyer Defendants Are Not State Actors .....................5

2. Plaintiffs Do Not allege a Plausible California Tort Claim........6

a. Stuart Fails to Allege Tort Claim as a UCL Claim...............6

b. Tort Claims Based on Privileged Statements Pursuantto Cal. Civil Code § 47(b) Fail .............................................7

3. Plaintiffs Do Not Allege A Plausible Lanham Act.....................8

4. Plaintiffs Do Not Allege A Plausible RICO Claim ....................9

II. PLAINTIFFS’ FAC SHOULD BE DISMISSED PURSUANT TOFEDERAL RULE OF CIVIL PROCEDURE 9(b) .........................................9

III. PLAINTIFFS ARE NOT ENTITLED TO “PROSPECTIVE RELIEF” ......10

IV. CONCLUSION..............................................................................................10


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- ii - MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


TABLE OF AUTHORITIES Page

CASES

Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th Cir. 2007) ........................................................................................2

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........................................................4, 5, 8, 9

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1989) ............................1

B.C. v. Plumas Unified School Dist., 192 F.3d 1260 (1999) ...................................10

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...............................4, 5, 6, 8, 9

Bird v. Lewis & Clark College, 303 F.3d 1015 (9th Cir. 2002) ..............................10

Campion v. Old Republic Home Protection Co., Inc. 272 F.R.D. 517 (S.D. Cal. 2011) ...............................................................................................7

Casault v. Federal Nat. Mortg. Ass’n, 915 F.Supp.2d 1113 .....................................6

Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997) .....................................................10

DC Comics v. Pacific Pictures Corp., 938 F.Supp.2d 941 (C.D. Cal 2013).............3

Decker v. GlenFed, Inc., 42 F.3d 1541 (9th Cir.1994)............................................10

Diaz v. Gates, 420 F.3d 897 (9th Cir.2005)...............................................................9

Fraklin v. Fox, 312 F.3d 423 (9th Cir. 2002) ............................................................6

Harris v. Roderick, 126 F.3d 1189 (9th Cir.1997) ....................................................5

Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006)..............................2

In re Firearm Cases, 126 Cal.App.4th 959 (2005).....................................................7

Jack Russell Terrier Network of Northern Ca. v. American Kennel Club, Inc., 407 F.3d 1027 (9th Cir. 2005) .................................................................8

Ketchum v. Alameda County, 811 F.2d 1243 (9th Cir. 1987) ...................................5

Khoury v. Maly's of California, Inc., 14 Cal.App.4th 612 (1993).............................7

Lauter v. Anoufrieva, 642 F.Supp.2d 1060 (C.D. Cal. 2009)................................6, 8

McDougal v. County of Imperial, 942 F.2d 668 (9th Cir. 1991)...............................2

Moore v. Kayport Package Express, Inc., 885 F.2d 531 (9th Cir. 1989) ..................9

Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) .........................................4

Polk County v. Dodson, 454 U.S. 312 (1981)............................................................5

Pugliese v. Superior Court, 146 Cal.App.4th 1444 (2007) .......................................3


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- iii - MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir.1984) ...................1

Roberts v. McAfee, Inc., 660 F.3d 1156 (9th Cir. 2011)............................................3

Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010) .................................................................................................2

Rubio v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010) ......................................7

Sedima, S.P. R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985)........................................9

Selfhelpworks.com v. 1021018 Alberta Ltd., 2010 WL 5396042 (S.D. Cal. Dec. 23, 2010) ................................................................................3

Stoll v. Runyon, 165 F.3d 1238 (9th Cir. 1999) .........................................................3

Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999) .................................................................................................5

Wasco Prods., Inc. v. Southwall Technologies, Inc., 435 F.3d 989 (9th Cir. 2006) .................................................................................................3

West v. Atkins, 487 U.S. 42 (1988) ............................................................................5

Wilson v. Garcia, 471 U.S. 261 (1985) .....................................................................2

Yanting Zhang v. Superior Court, 57 Cal.4th 364 (2013) .........................................7

Yates v. Allied Intern. Credit Corp., 578 F.Supp.2d 1251 (2008).............................8

STATUTES

15 U.S.C. § 1125..................................................................................................8, 10

18 U.S.C. § 1962........................................................................................................9

42 U.S.C. § 1983................................................................................................2, 5, 6

42 U.S.C. § 1985................................................................................................2, 5, 6

42 U.S.C. § 1986................................................................................................2, 5, 6

Cal. Bus. & Prof. Code. § 17200 ...........................................................................6, 7

Cal. Bus. & Prof. Code. § 17204 ...............................................................................7

Cal. Code Civ. Proc. § 47(b)..................................................................................7, 8

Cal. Code Civ. Proc. § 335.1 .....................................................................................3

Cal. Code Civ. Proc. § 339(1)....................................................................................3

Cal. Code Civ. Proc. § 340(c) ....................................................................................3


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-iv - MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


RULES

Fed. R. Civ. Proc. 8(a)(2).....................................................................................4, 10

Fed. R. Civ. Proc. 9(b) .........................................................................................9, 10

Fed. R. Civ. Proc. 12(b)(6) ..............................................................................1, 4, 10

Fed. R. Civ. Proc. 41(b) ...........................................................................................10


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-1- MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


The Lawyer Defendants respectfully submit this memorandum of points and

authorities in support of their supplemental motion to dismiss plaintiffs’ First Amended

Complaint (hereinafter, “FAC”).

Plaintiffs apparently sue the Lawyer Defendants because they were panelists at a

SDCBA seminar four years ago. [FAC ¶¶ 109-110.] Presenting at a CLE seminar does

not give rise to liability, and plaintiffs fail to allege any facts that could plausibly support

any claim for relief against the Lawyer Defendants. All of plaintiffs claims against the

Lawyer Defendants fall into one of two categories: (1) claims against the “Stuart Assault

Coordinators” [FAC ¶ 152], which includes some of the individual Lawyer Defendants

(Carole and Laury Baldwin, William Hargreaves, Meredith Levin, and Janis Stocks); or

(2) claims against all defendants generally (there are over 60 named defendants). In an

attempt to bring order to chaos, the Lawyer Defendants here group all the claims against

them into four groups: (i) civil rights claims, (ii) California law tort claims, (iii) Lanham

Act claim, and (iv) RICO claims.1 In addition to the reasons cited in the Omnibus Brief,

which the Lawyer Defendants join, all claims against the Lawyer Defendants should be

dismissed with prejudice and without leave to amend for the reasons stated below.

I. PLAINTIFFS’ FAC SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable

legal theory or fails to plead essential facts under that theory. Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1989); Robertson v. Dean Witter Reynolds,

Inc., 749 F.2d 530, 534 (9th Cir.1984).

A. Plaintiffs’ Civil Rights Claims and California Tort Claims against the Lawyer Defendants Are Barred by the Applicable Statutes of Limitations

“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by

the applicable statute of limitations only when ‘the running of the statute is apparent on

1 See Lawyer Defendants’ Notice of Motion and Motion to Dismiss for list of 44 claims that appear to be alleged against the Lawyer Defendants, which could be read in conjunction with this brief for ease of organization/reference.


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- 2 - MEMORANDUM OF POINTS AND AUTHORITIES ISO SUPP. MOTION TO DISMISS FAC


the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena,

592 F.3d 954, 969 (9th Cir. 2010) citing Huynh v. Chase Manhattan Bank, 465 F.3d

992, 997 (9th Cir. 2006). Here, the FAC shows that the claims are time barred. The

alleged civil rights claims and California law tort claims against the Lawyer Defendants

arise from the Lawyer Defendants’ alleged conduct (particularly as defined as “Stuart

Assault Coordinators”) on or before the SDCBA Seminar on April 15, 2010. [FAC ¶¶

109-148, 152.] Plaintiffs filed the complaint on August 20, 2013 – nearly three and a

half years after the incident on April 15, 2010.

1. Plaintiffs’ Civil Rights Claims Pursuant to Sections 1983, 1985,and 1986 Are Time Barred

Here, all of plaintiffs’ civil rights claims against the Lawyer Defendants (Claim

1.12, Claim 1.13, Claim 2.7, Count 3, Claims 9.1- 9.5, Count 10, Count 12, and Count

13) are untimely and should be dismissed with prejudice. “It is well-established that

claims brought under § 1983 borrow the forum state's statute of limitations for personal

injury claims . . . and in California, that limitations period is two years.” Action

Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir.

2007) citing Wilson v. Garcia, 471 U.S. 261, 266–67 (1985) and Cal. Code Civ. P. §

335.1. Section 1985 claims “are governed by the same statute of limitations as actions

under § 1983.” McDougal v. County of Imperial, 942 F.2d 668, 673-674 (9th Cir.

1991). A Section 1986 claim must be commenced within one year. 42 U.S.C. § 1986

(“But no action under the provisions of this section shall be sustained which is not

commenced within one year after the cause of action has accrued.”) Thus, the claims

are also barred by either a two year or one year statute of limitations.

2. Plaintiffs’ California Tort Claims Are Time Barred

Plaintiffs’ California tort claims against the Lawyer Defendants (Claim 2.1 and

Claims 2.3-2.7) are also barred by either a two year or one year statute of limitations.

“An action for assault, battery, or injury to, or for the death of, an individual caused by

the wrongful act or neglect of another” must be commenced within two years. Code


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Civ. Proc. § 335.1; Pugliese v. Superior Court, 146 Cal.App.4th 1444, 1450 (2007)

(“Causes of action for assault, battery and intentional infliction of emotional distress are

governed by the two-year statute of limitations set forth in Code of Civil Procedure

section 335.1”). Thus, Stuart’s assault, battery and intentional infliction of emotional

distress claims should be dismissed with prejudice.

Similarly, plaintiffs’ claims for wrongful inducement to breach contract and

interference with economic relations face a two year statute of limitations period and

should be dismissed with prejudice. “Claims for interference with prospective business

advantage or contractual obligations are subject to the two year limitations period of

section 339 of the California Code of Civil Procedure.” Selfhelpworks.com v. 1021018

Alberta Ltd., 2010 WL 5396042 at *3 (S.D. Cal. Dec. 23, 2010); see also DC Comics v.

Pacific Pictures Corp., 938 F.Supp.2d 941, 948 (C.D. Cal 2013); Cal. C.C.P. § 339(1).

Stuart’s defamation claim faces a one year statute of limitations period. Cal.

Code Civ. Proc. § 340(c); see also Roberts v. McAfee, Inc., 660 F.3d 1156, 1166 (9th

Cir. 2011). Thus, Stuart’s defamation claim should be dismissed with prejudice as well.

B. Plaintiffs Fail to Allege Facts Necessary for Equitable Tolling

It is the plaintiffs’ burden to allege facts necessary for equitable tolling. Wasco

Prods., Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 991 (9th Cir. 2006).

“Equitable tolling applies when the plaintiff is prevented from asserting a claim by

wrongful conduct on the part of the defendant, or when extraordinary circumstances

beyond the plaintiff's control made it impossible to file a claim on time.” Stoll v. Runyon,

165 F.3d 1238, 1242 (9th Cir. 1999). Nowhere does the FAC allege that wrongful

conduct by the Lawyer Defendants prevented plaintiffs from asserting a claim. [See FAC

¶¶ 372, 466.] Further, plaintiffs do not allege extraordinary circumstances beyond the

plaintiffs’ control which made it impossible to file a timely claim. Therefore, plaintiffs

do not meet their burden in alleging facts necessary for equitable tolling as to the claims

against the Lawyer Defendants. Moreover, as set forth in the Omnibus Motion, even if

the Court were to take into account an alleged threat by the SDBCA or Chubb to


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prosecute Stuart for trespass, the claims would still be time barred.

C. Plaintiffs’ Allegations Are Implausible under the Twombly and Iqbal Standards

The Supreme Court established a more stringent standard of review for motions to

dismiss under Rule 12(b)(6) motions. Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) now require that, in order to survive a

motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The Court

must first “identify[] the allegations in the complaint that are not entitled to the

assumption of truth,” and then consider “the factual allegations in [the] complaint to

determine if they plausibly suggest an entitlement to relief.” Id. at 680-681.

Moreover, to establish a “plausible” claim, the complaint must contain “more than

labels and conclusions” or “formulaic recitations of the elements of a cause of action.”

Twombly, supra, 550 U.S. at 555 (analyzing Fed.R.Civ.P. 8(a)(2) and holding that a bare

assertion of conspiracy will not alone suffice to state a claim under the Sherman Act).

“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Iqbal, supra, 556 U.S. at 679; see also Moss v. U.S.

Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“In sum, for a complaint to survive a

motion to dismiss, the non-conclusory factual content, and reasonable inferences from

that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”)

Here, none of Plaintiffs’ allegations pertaining to the Lawyer Defendants meet the

plausibility standards of Twombly and Iqbal. Plaintiffs have plead no facts to support

unlawful conduct by any of the Lawyer Defendants or any plausible claim for relief

against the Lawyer Defendants.

/ / /


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1. Plaintiffs Do Not Allege Any Plausible Civil Rights Claims

Plaintiffs’ civil rights claims (Claim 1.12, Claim 1.13, Claim 2.7, Count 3,

Claims 9.1- 9.5, Count 10, Count 12, and Count 13) do not meet the plausibility

standards of Twombly and Iqbal, because they are merely conclusory allegations, void

of any specific factual support. Plaintiffs have not sufficiently plead facts that state a

claim under Sections 1983, 1985 or 1986. Plaintiffs offer no allegations to support

claims that the Lawyer Defendants acted under the color of state law (§1983),

participated in a conspiracy to interfere with plaintiffs’ civil rights (§1985), or neglected

to prevent a conspiracy to interfere with plaintiffs’ civil rights (§1986).

a. The Lawyer Defendants Are Not State Actors

To state a claim under Section 1983, a plaintiff must both (1) allege the

deprivation of a right secured by the federal Constitution or statutory law, and (2) allege

that the deprivation was committed by a person acting under color of state law. West v.

Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th

Cir. 1987). When addressing whether a private party acted under color of law, there is

a presumption that private conduct does not constitute governmental action. Sutton v.

Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999). A private

attorney is not a state actor for the purposes of a Section 1983 claim. Polk County v.

Dodson, 454 U.S. 312, 325 (1981) (holding that a private attorney, even if appointed

and paid for by the state, is not acting under color of state law when performing his

function as counsel).

Plaintiffs apparently attempt to establish liability under § 1983 by alleging the

Lawyer Defendants conspired or entered into joint action with a state actor, apparently

based on Stuart’s ejection from the MCLE seminar. (To do so, plaintiffs use conclusory

phrases like “obstruction of justice,” “deprivation of rights” and “malicious

prosecution”.) This fails. To survive a motion to dismiss, a plaintiff alleging

conspiracy to deprive him of his civil rights must include in his complaint

nonconclusory allegations with evidence of unlawful intent. Harris v. Roderick, 126


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F.3d 1189, 1195 (9th Cir.1997). In evaluating alleged joint action, the Ninth Circuit

“require[s] a substantial degree of cooperation before imposing civil liability for actions

by private individuals that impinge on civil rights.” Fraklin v. Fox, 312 F.3d 423, 445

(9th Cir. 2002).

The FAC fails to allege any facts sufficient to show that the Lawyer Defendants

acted unlawfully, or under color of state law. The FAC only offers conclusory

allegations of conspiracy. [See also Omnibus Motion discussing failure to state a claim

under Section 1983 at Section VI.A.] The FAC fails to allege any specific facts

showing cooperation by any of the Lawyer Defendants and a state actor, much less a

substantial degree of cooperation required to state a claim. Further, plaintiffs cannot

amend their complaint to allege a conspiracy based on allegations that the Lawyer

Defendants allegedly provided information (even false information) to sheriff’s

deputies, for example, because such conduct does not transform the Lawyer Defendants

into state actors. See Lauter v. Anoufrieva, 642 F.Supp.2d 1060, 1087 (C.D. Cal. 2009).

Thus, plaintiffs fail to allege a plausible claim pursuant to Section 1983, 1985 or 1986.

2. Plaintiffs Do Not Allege a Plausible California Tort Claim

Plaintiffs allege various California tort claims against the Lawyer Defendants

(Claim 2.1 and Claims 2.3-2.7), all stemming from an alleged conspiracy to have Stuart

removed from the SDCBA event on April 15, 2010. However, nowhere do plaintiffs

allege any specific conduct by the Lawyer Defendants to support their claims for assault

and battery, wrongful inducement to breach contract, interference with economic

relations, defamation, or intentional infliction of emotional distress. All such claims fail.

a. Stuart Fails to Allege Tort Claim as a UCL Claim

Stuart’s Claim 2.1 against the “Stuart Assault Coordinators” alleging “Assault

and Battery; Cal. Bus. & Prof. Code § 17200” attempts to characterize a tort claim as a

Unfair Competition Law (“UCL”) claim, which is forbidden. “[T]o allege a UCL

claim, a plaintiff must show that the defendant's business practice was ‘unlawful, unfair,

or fraudulent’ by stating with reasonable particularity the facts supporting the


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violations.” Casault v. Federal Nat. Mortg. Ass’n, 915 F.Supp.2d 1113, 1128 (C.D. Cal.

2012) (citing Twombly to dismiss plaintiffs’ UCL claim that failed to state particular

facts to support their claim but only re-alleged and incorporated every allegation in the

151pg. pleading); Khoury v. Maly's of California, Inc., 14 Cal.App.4th 612, 619 (1993).

Moreover, a violation of the UCL cannot be established without a link between a

defendant's business practice or act and the alleged harm. Campion v. Old Republic

Home Protection Co., Inc. 272 F.R.D. 517, 532 (S.D. Cal. 2011) citing In re Firearm

Cases, 126 Cal.App.4th 959, 979 (2005). Here, Stuart fails to allege any link between

the Lawyer Defendants’ business acts or practices and the alleged harm. Because, “a

UCL claim is equitable in nature and damages cannot be recovered,” prevailing

plaintiffs are generally limited to injunctive relief and restitution. Id. Thus, to maintain

standing for a UCL claim, the plaintiff must “have ‘suffered injury in fact and ... lost

money or property as a result of the unfair competition.’” Rubio v. Capital One Bank,

613 F.3d 1195, 1203 (9th Cir. 2010) (citing Bus. & Prof. Code § 17204). Here, FAC

Claim 2.1 fails as plaintiff Stuart alleges that he has been “damaged” but not that he has

lost money or property as a result of any alleged unfair competition. [FAC ¶ 313.]

Importantly, the California Supreme Court has “made it clear that an action under

the UCL is not an all-purpose substitute for a tort or contract action.” Yanting Zhang v.

Superior Court, 57 Cal.4th 364, 371 (2013). The UCL was designed to “provide a

streamlined procedure for the prevention of ongoing or threatened acts of unfair

competition.” Id. However, in Claim 2.1, Stuart attempts to do exactly what the

California Supreme Court forbids. [See FAC ¶¶ 310-313.] Stuart attempts to combine a

UCL claim with a tort claim for assault and battery based on a single incident – the

alleged “Stuart Assault”. These claims fail.

b. Tort Claims Based on Privileged Statements Pursuant toCal. Civil Code § 47(b) Fail

The FAC’s description of the “Stuart Assault” alleges that during the SDCBA

seminar, Judge Lorna A. Alksne and other unspecified individuals conferred with San


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Diego Sheriff’s Deputies prior to the sheriff’s deputies and off-duty officers

approaching Stuart. [See FAC ¶¶ 126-128.] Significantly, plaintiffs do not allege that

the Lawyer Defendants even spoke to the sheriff’s deputies, ever. Even if a charitable

reading of the FAC allowed for such an allegation though, it does not create a

cognizable cause of action against the Lawyer Defendants. Under California law,

“reports to police of suspected criminal activities, even false reports made with malice,

are absolutely privileged and may not serve as predicates for tort claims, except the tort

of malicious prosecution.” Lauter, supra, 642 F.Supp.2d at 1090 (analyzing Cal. Civ.

Code § 47(b)); see also Yates v. Allied Intern. Credit Corp., 578 F.Supp.2d 1251, 1254

(2008). Therefore, to the extent plaintiffs’ claims against the Lawyer Defendants are

predicated on communications to the San Diego Sheriff’s Deputies, those claims fail

because they are based on privileged statements pursuant to California Civil Code

section 47(b) and should be dismissed without leave to amend. See Lauter,642 F. Supp.

2d at 1091 (“any amendment would be futile”).

3. Plaintiffs Do Not Allege A Plausible Lanham Act Claim

Plaintiffs’ Lanham Act claim pursuant to 15 U.S.C. § 1125 (Count 15) is equally

void of required specificity and support. Like all of plaintiffs’ claims against the

Lawyer Defendants, plaintiffs’ Lanham Act allegations fail to meet the plausibility

standards of Twombly and Iqbal. There are no specific facts to support the bare legal

conclusions. It appears that plaintiffs attempt generally to plead false and misleading

advertising. To have standing for this cause of action, a plaintiff must show: (1) a

commercial injury based upon a misrepresentation about a product; and (2) that the

injury is “competitive,” or harmful to the plaintiff's ability to compete with the

defendant. Jack Russell Terrier Network of Northern Ca. v. American Kennel Club,

Inc., 407 F.3d 1027, 1037 (9th Cir. 2005). Here, the FAC is void of any allegations

related to either of the two prongs establishing plaintiffs’ standing. None of the

plaintiffs compete with the Lawyer Defendants. (Plaintiff California Coalition for

Families and Children is not a law firm or lawyer, and Stuart is disbarred and cannot


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lawfully compete in the practice of law.) Thus, the Lanham Act claim fails as well.

4. Plaintiffs Do Not Allege A Plausible RICO Claim

Similarly, nowhere do plaintiffs establish a “plausible” RICO claim against the

Lawyer Defendants by alleging “more than labels and conclusions” or “formulaic

recitations of the elements of a cause of action.” Twombly, supra, 550 U.S. at 555. (See

FAC: RICO Enterprise 1 & 2, Racketeering Counts 2 & 3, Racketeering Claim for

Relief 3.1, 3.6, 5.1-5.11, Racketeering Counts 6-11.)

Plaintiffs allege RICO claims against the Lawyer Defendants under 18 U.S.C. §

1962(c) and conspiracy to commit RICO under § 1962(d). A prima facie case for RICO

under § 1962(c) requires “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.” Sedima, S.P. R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).

A plaintiff must also show harm of a specific business or property interest by the

racketeering conduct. Id.; Diaz v. Gates, 420 F.3d 897, 900 (9th Cir.2005).

Here, plaintiffs attempt to form the basis for RICO liability with conclusory

allegations of predicate acts by using words like fraud, bribery, kidnapping, false

imprisonment, obstruction of justice, tampering with a witness, victim or informant,

retaliation, conspiracy, among other factually-devoid allegations. Plaintiffs do not

allege any specific conduct by the Lawyer Defendants to support claims that the Lawyer

Defendants have ever been part of a RICO enterprise through a pattern of racketeering

activity. Under Iqbal, plaintiffs’ allegations do not allow the Court to draw the

reasonable inference that the Lawyer Defendants could plausibly be liable for

participating in any such enterprise or pattern of conduct giving rise to RICO liability.

II. PLAINTIFFS’ FAC SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 9(B)

Plaintiffs’ RICO claims alleging fraud and their Lanham Act claim alleging false

and misleading representation must meet the stringent pleading requirements of Rule

9(b). Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541 (9th Cir. 1989)

(applying Rule 9(b) particularity requirements to RICO claims). Rule 9(b) requires that


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the pleader state the time, place, and specific content of the false representations as well

as the identities of the parties to the misrepresentation. Id. Allegations of fraud must

include “the who, what, when, where, and how” of the misconduct alleged. Cooper v.

Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (internal quotation marks omitted). Plaintiffs

must allege “more than the neutral facts necessary to identify the transaction. The

plaintiff must set forth what is false or misleading about a statement, and why it is

false.” Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir.1994).

Plaintiffs failed to plead their RICO claims alleging fraud or their Lanham Act

claim alleging misrepresentation with particularity. Here, the RICO claims alleging

fraud (“Racketeering Counts” 2, 8, 9, 10, 11) and Lanham Act claim (Count 15) are

only based on bare legal conclusions. Plaintiffs do not identify any specific

misrepresentations or fraudulent acts, or by whom, or when they occurred, or how and

why they are false. Plaintiffs’ bare-bones allegations warrant dismissal under Rule 9(b).

III. PLAINTIFFS ARE NOT ENTITLED TO “PROSPECTIVE RELIEF”

Plaintiffs alleged claims for “prospective relief” [FAC ¶¶ 1181-1203] are

implausible because they are predicated on plaintiffs’ other claims – all of which should

be dismissed pursuant to Rule 12(b)(6) and/or 9(b). Moreover, to have standing to seek

injunctive relief, plaintiffs have not established that they have has suffered or are

threatened with a “concrete and particularized” legal harm, coupled with a sufficient

likelihood that they will again be wronged in a similar way. Bird v. Lewis & Clark

College, 303 F.3d 1015, 1019 (9th Cir. 2002); B.C. v. Plumas Unified School Dist., 192

F.3d 1260, 1264 (1999). Here, plaintiffs have not and cannot do so.

IV. CONCLUSION

The Lawyer Defendants respectfully request that plaintiffs’ claims asserted

against them be dismissed with prejudice pursuant to Rule 9(b) and Rule 12(b)(6).

Additionally, for the reasons stated in the Omnibus Motion, which the Lawyer

Defendants have joined, the Lawyer Defendants respectfully request that plaintiffs’

claims asserted against them be dismissed with prejudice pursuant to Rule 8(a)(2), Rule


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9(b), Rule 12(b)(6), and Rule 41(b).


April 11, 2014 PESTOTNIK + GOLD LLP

s/ Timothy R. Pestotnik Timothy R. Pestotnik Email: [email protected] Attorneys for Defendants William Hargreaves; Hargreaves & Taylor, LLP (erroneously sued as Hargraeves & Taylor, PC); Meredith Levin; Law Offices of Allen-Slattery, Inc. (erroneously sued as Allen Slattery, Inc.); Janis Stocks; Stocks & Colburn(erroneously sued as Stocks & Colburn, a professional corporation); Carole Baldwin; Laury Baldwin; and Baldwin & Baldwin


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1 3:13-cv-01944-CAB-BLM

Kenneth H. Moreno (SBN 108890)J. Lynn Feldner (SBN 132913)Gina E. Och (SBN 170520)MURCHISON & CUMMING, LLP750 B Street, Suite 2550San Diego, California 92101-8114Telephone: (619) 544-3204

(619) 544-3216Facsimile: (213) 630-1027E-Mail: [email protected]

[email protected]@murchisonlaw.com

Attorneys for Defendants,TERRY CHUCAS and SUSAN GRIFFIN



CALIFORNIA COALITION FORFAMILIES AND CHILDREN.,a Delaware Corporation, andCOLBERN C. STUART, an individual,

Plaintiffs,

vs.

SAN DIEGO COUNTY BARASSOCIATION, a Californiacorporation, et al.,

Defendants.

CASE NO. 3:13-cv-01944-CAB-BLM

NOTICE OF JOINDER AND JOINDERTO OMNIBUS MOTION TO DISMISSPLAINTIFFS' FIRST AMENDEDCOMPLAINT; SUPPLEMENTALBRIEF

[Fed.R.Civ.P. 8(a), 8(e), 9(b), 12(b)(1), 12(b)(6),and 41(b)]

Date: June 6, 2014Time: 2:00 p.m.Ctrm: 4C

Assigned Judge: Hon. Cathy Ann BencivengoMagistrate: Hon. Barbara Lynn MajorAction Filed: August 20, 2013

[NO ORAL ARGUMENT UNLESSREQUESTED BY THE COURT]

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, pursuant to this Court's Order Setting Briefing

Schedule (Dkt. No. 107), Defendants TERRY CHUCAS and SUSAN GRIFFIN hereby

join in the Notice of Defendants' Omnibus Motion to Dismiss Plaintiffs' First Amended


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Complaint, Memorandum of Points and Authorities in Support of Defendants' Omnibus

Motion to Dismiss Plaintiffs' First Amended Complaint, Request for Judicial Notice and

Exhibits attached thereto, and Declaration of Stephan D. Lucas [Dkt. No. 131, 131-1,

131-2, 131-3], and the grounds stated therein, and set for hearing before the Honorable

Cathy Ann Bencivengo, on June 6, 2014, at 2:00 p.m., in Courtroom 4C of this Court.

Specifically, as explained and set forth in detail Defendants' Omnibus Motion to

Dismiss Plaintiffs' First Amended Complaint:

1. Plaintiffs' First Amended Complaint should be dismissed with prejudice

pursuant to Federal Rule of Civil Procedure 41(b) for failing to satisfy the requirements

of Federal Rules of Civil Procedure 8(a) and (e), and 9(b), the orders of this Court, and

the rules of this Court.


pursuant to Federal Rule of 12(b)(1) for lack of jurisdiction and/or the Rooker-Feldman

doctrine.


pursuant to Federal Rule of Civil Procedure 12(b)(6) because it is barred by the statute of

limitations.

4. Plaintiffs' 42 U.S.C. § 1983 count should be dismissed with prejudice

pursuant to Federal Rule of Civil Procedure 12(b)(6) because: (a) it does not contain

sufficient factual matter to state a claim for relief against either Mr. Chucas or Ms.

Griffin; and (b) it does not and cannot allege that either Mr. Chucas or Ms. Griffin,

private individuals, acted under the color of law in connection with the alleged "Stuart

Assault."

5. Plaintiffs' Lanham Act count should be dismissed with prejudice pursuant to

Federal Rules of Civil Procedure 9(b) and 12(b)(6) because: (a) Plaintiffs lack standing

to sue these moving Defendants; and (b) it does not contain sufficient factual matter to

state a claim for relief against either Mr. Chucas or Ms. Griffin.

//


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6. Plaintiffs' RICO counts should be dismissed with prejudice pursuant to

Federal Rules of Civil Procedure 9(b) a12(b)(6) because it does not contain sufficient

factual matter to state a claim for relief against either Mr. Chucas or Ms. Griffin.

Moreover, as further set forth in the following Memorandum of Points and

Authorities in support of Defendants' Supplemental Brief, there are additional grounds

upon which this Court may dismiss Defendants TERRY CHUCAS and SUSAN

GRIFFIN from this action with prejudice.

Accordingly, pursuant to Federal Rules of Civil Procedure 8(a), 8(e), 9(b),

12(b)(1), 12(b)(6), and 41(b), each and every cause of action pled against Defendants

TERRY CHUCAS and SUSAN GRIFFIN should be dismissed with prejudice.

This Joinder is based upon this Notice of Joinder, the Defendants' Omnibus

Motion to Dismiss Plaintiffs' First Amended Complaint and supporting documents

previously filed, and the accompanying Memorandum of Points and Authorities in

support of the Supplemental Brief, and such further oral and/or documentary evidence as

may properly be presented at the time of the hearing of this matter, if any.

DATED: April 11, 2014 MURCHISON & CUMMING, LLP

By: s/ Gina E. OchKENNETH H. MORENOJ. LYNN FELDNERGINA E. OCHAttorneys for Defendants,TERRY CHUCAS and SUSAN GRIFFIN


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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF SUPPLEMENTAL BRIEF

Defendants TERRY CHUCAS (hereinafter "Mr. Chucas") and SUSAN GRIFFIN

(hereinafter "Ms. Griffin") submit the following Memorandum of Points and Authorities

in support of their Supplemental Brief to advance and set forth additional grounds for

their dismissal.

II.

ARGUMENT

A. To the Extent Count 2 for California State Claims is Asserted Against these

Defendants, It Should be Dismissed.

To the extent Plaintiffs' California common law claims are directed against Mr.

Chucas or Ms. Griffin because of the alleged "Stuart Assault," then these claims should

also be dismissed. In addition to being barred by the two-year statute of limitations for

personal injury or tort claims as set forth in the Omnibus Motion to Dismiss, these claims

fail to state a claim.

For example, to prevail on a defamation cause of action, a plaintiff must establish

the following elements: "the intentional publication of a statement of fact which is false,

unprivileged, and has a natural tendency to injure or which causes special damage."

Ringler Associates Inc. v. Maryland Cas. Co., 80 Cal.App.4th 1165, 1179 (2000). As

another example, "'[a] cause of action for intentional infliction of emotional distress

exists when there is "'"(1) extreme and outrageous conduct by the defendant with the

intention of causing, or reckless disregard of the probability of causing, emotional

distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual

and proximate causation of the emotional distress by the defendant’s outrageous

conduct.'"'" [Citations.]' [Citation.]" Plotnik v. Meihaus, 208 Cal.App.4th 1590, 1609


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(2012).

In this case, neither count sets forth any facts against either Mr. Chucas or Ms.

Griffin to show that they either defamed Plaintiffs or intended to cause Plaintiffs severe

or extreme emotional distress. In fact, there are no facts showing that either Defendant

published a false, unprivileged statement about Plaintiffs or that either Defendant acted

outrageously against any Plaintiff. Simply, these counts, as well as any other California

state claims alleged under Count 2, should be dismissed with prejudice.

B. Plaintiffs' 42 U.S.C. § 1985 Count 9 Should also be Dismissed.

Plaintiffs' count is based on subdivisions (1), (2), and (3) of 42 U.S.C. § 1985, but

each fails to state a claim against these Defendants as follows:

Section 1985(1), which deals with conspiracies to impede federal officials in the

performance of their official duties is not implicated by Plaintiffs' First Amended

Complaint, nor can it. The allegations do not allege, for example, Mr. Stuart was a

federal officer or held a federal office at the time of "the Stuart Assault," which is

required. See Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 717 (9th

Cir. 1981) (§ 1985(1) did not afford any rights or protections to plaintiff, a county

official, because he was not a federal officer). Hence, Mr. Stuart (as well as the other

Plaintiffs) cannot state a claim or have standing to sue under this provision.

Section 1985(2) is divided into two types of violations. The first clause—

conspiracy to intimidate a party, witness, or juror under § 1985(2) requires: (1) a

conspiracy, (2) to deter testimony or attendance in federal court, and (3) injury to the

plaintiff. Timmerman v. US. Bank, N.A., 483 F.3d 1106, 1124 (10th Cir. 2007). The

second clause is further separated into two sub-clauses of conspiracies: (1) conspiracies

to impede the due course of justice in any state with the intent to deny to any citizen the

equal protection of the laws; and (2) conspiracies to injure a person for enforcing, or

attempting to enforce, the right of any person to the equal protection of the laws. See 42

U.S.C. § 1985(2). Under either sub-clause, an additional predicate for the claim requires

some class-based animus on the part of the defendant. See Portman v. County of Santa


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Clara, 995 F.2d 898, 909 (9th Cir. 1993) ("It is well-settled that the equal protection

language of the second clause of section 1985(2) requires an allegation of class-based

animus for the statement of a claim under that clause.") (alteration, citation, and internal

quotation marks omitted).

None of the Plaintiffs was a party or witness in a federal proceeding at the time of

"The Stuart Assault," and surely there is no factual allegation that Mr. Chucas or Ms.

Griffin did anything to deter any Plaintiff from testifying or attending any federal

proceeding. While Plaintiffs conclude there was a "conspiracy" among various or all of

the Defendants, there are simply no facts to support that Mr. Chucas and Ms. Griffin

conspired between themselves or with others to deter Plaintiffs from testifying or

attending a particular federal proceeding, and injuring Plaintiffs.

Further, Plaintiffs have failed to plead facts supporting that they were

discriminated on the basis of race, ethnicity, or membership in a protected class by Mr.

Chucas or Ms. Griffin, and that these Defendants had an intent to deny Plaintiffs equal

protection or had an intent to injure Plaintiffs for enforcing their rights of equal

protection.

Section 1985(3) of 42 U.S.C. similarly fails. Section 1985(3) is divided into three

parts. The first part prohibits conspiracies to deprive "any person or class of persons of

the equal protection of the laws or of equal privileges and immunities under the laws." 42

U.S.C. § 1985(3). The second part prohibits conspiracies to interfere with federal

elections. Id. The third part provides a cause of action in federal court for the victim of

conspiracies prohibited by § 1985(3). Id. As with subdivision (2), subdivision (3)

requires a class-based, invidious animus on the part of the conspiring defendant. See

Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

Plaintiffs have not demonstrated that Mr. Chucas and Ms. Griffin conspired

between themselves or with others to deprive any Plaintiff of his or its constitutional

rights. Indeed, Plaintiffs have not alleged that moving Defendants acted in such a

manner that is in violation of any part of 42 U.S.C. § 1985(3). More critically, Plaintiffs


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have not alleged that any actionable conspiracy involving moving Defendants was

motivated by a class-based discrimination.

Overall, Plaintiffs' First Amended Complaint (once again) fails to state a

cognizable or viable § 1985 claim against Mr. Chucas and Ms. Griffin; thus, this count

should be dismissed with prejudiced.

C. Plaintiffs' Lanham Act Count is Not Only Time-Barred, Plaintiffs Do Not

Even Have the Standing to Sue Under this Claim.

The Lanham Act "contains no explicit statute of limitations," thus, federal courts

"presume that Congress intended to 'borrow' the limitations period from the closely

analogous action under state law." Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304

F.3d 829, 836 (9th Cir. 2002) (citing Reed v. United Transp. Union, 488 U.S. 319, 323-

24, 109 S. Ct. 621 (1989)). Consequently, in California, courts rely on the relevant state

statute of limitations period for fraud, which is a closely analogous to false-advertising

claims arising under the Lanham Act. See, e.g., Karl Storz Endoscopy-Am., Inc. v.

Surgical Techs., Inc., 285 F.3d 848, 857 (9th Cir. 1992) (applying California's three-year

fraud statute of limitations to Lanham Act claims); Cal. Civ. Proc. Code §338(d)

(California law provides a three-year statute of limitations for fraud). This three-year

period "runs from the time the plaintiff knew or should have known about his § 43(a)

cause of action." Jarrow, supra, 304 F.3d at 838 (citing Gen. Bedding Corp. v.

Echevarria, 947 F.2d 1395, 1397 n.2 (9th Cir. 1991)). The burden of determining

whether and whom to sue within the statutory period rests on the plaintiff. Davis v.

United States, 642 F.2d 328, 331 (9th Cir. 1981).

Accordingly, Plaintiffs' Lanham Act count is barred because Plaintiffs knew or

should have known, as of April 15, 2010 ("The Stuart Assault")—the only connection

allegedly between moving Defendants and Plaintiffs—or anytime prior to this incident,

about their Lanham Act cause of action. Yet, Plaintiffs did not file this action until

August 20, 2013, which is more than three years after the alleged offending incident or

last act of whatever false advertising may have occurred. Therefore, the Court can reach


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no other conclusion but to find Plaintiffs' Lanham Act is time-barred.

Furthermore, Plaintiffs have the burden of establishing Article III standing. See

Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal

court's jurisdiction has the burden of proving the actual existence of subject matter

jurisdiction."). "In a false advertising suit, a plaintiff establishes Article III injury if

some consumers who bought the defendant's product under a mistaken belief fostered by

the defendant would have otherwise bought the plaintiff's product." TrafficSchool.com,

Inc. v. Edriver Inc., 653 F.3d 820, 825 (9th Cir. 2011) (internal quotations and citation

omitted). "[D]irect competition is strong proof that plaintiffs have a stake in the outcome

of the suit, so their injury isn't 'conjectural' or 'hypothetical.'" Id. at 825-26 (citing Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992)). Stated

differently, to have standing to sue under the Lanham Act, Plaintiffs must allege specific

facts, not legal conclusions, that show "(1) a commercial injury based upon a

misrepresentation about a product; and (2) that the injury is 'competitive,' or harmful to

the plaintiff's ability to compete with the defendant." Jack Russell Terrier Network of N.

Cal. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir. 2005); see also

TrafficSchool.com, supra, 653 F.3d at 826.

Plaintiffs, in this case, have not and cannot plead specific facts showing that they

compete with Mr. Chucas and Ms. Griffin for the same business, or that they could be or

have been harmed by Defendants' alleged false advertising. Plaintiffs allege Mr. Chucas

is a licensed, individual attorney, but offer nothing more. (FAC, ¶ 42.) As for Ms.

Griffin, they admit she does not provide any legal services whatsoever because she is a

psychologist. (FAC, ¶ 44.) By contrast, Mr. Stuart is a disbarred attorney, who no longer

can practice law or provide legal services. California Coalition for Families and

Children ("CCFC") is alleged to be a public benefit corporation that provides no legal or

psychological services, and LEXEVIA, PC ("Lexevia") no longer exists, was allegedly

acquired by CCFC on January 2, 2014 (FAC, ¶ 103), and did not exist when the original

Complaint was filed.


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For these additional reasons, the Lanham Act count should be dismissed with

prejudice.

D. Plaintiffs Similarly Lack Standing to Sue Under RICO.

To have standing to sue, "a civil RICO plaintiff must show: (1) that his alleged

harm qualifies as injury to his business or property; and (2) that his harm was 'by reason

of' the RICO violation, which requires the plaintiff to establish proximate causation."

Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (internal

citation omitted). Here, Plaintiffs have not alleged harm to a specific business or

property interest—or a "concrete financial loss"—as required under RICO caused by

either Mr. Chucas or Ms. Griffin. Id. at 975. As a result, they do not have the requisite

standing to sue under RICO.

III.

CONCLUSION

For the reasons stated above, Defendants TERRY CHUCAS and SUSAN

GRIFFIN respectfully request that the Court dismiss these Defendants from this action.

DATED: April 11, 2014 MURCHISON & CUMMING, LLP

By: s/ Gina E. OchKENNETH H. MORENOJ. LYNN FELDNERGINA E. OCHAttorneys for Defendants,TERRY CHUCAS and SUSAN GRIFFIN


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3:13-cv-01944-CAB-BLM

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Los Angeles, State of California. My business addressis 801 South Grand Avenue, Ninth Floor, Los Angeles, California 90017-4613.

On April 11, 2014, a true copy of the following document described asNOTICE OF JOINDER AND JOINDER TO OMNIBUS MOTION TO DISMISSPLAINTIFFS' FIRST AMENDED COMPLAINT; SUPPLEMENTAL BRIEFon the interested parties in this action as follows:

CM/ECF SERVICE: By electronically filing the foregoing document usingthe CM/ECF system maintained by the CM/ECF system of the United States DistrictCourt, Southern District of California website. Service to users who have consented toelectronic service is deemed complete upon the transmission of the Notice ofElectronic Filing.

I declare under penalty of perjury under the laws of the United States ofAmerica that the foregoing is true and correct and that I am employed in the office of amember of the bar of this Court at whose direction the service was made.

Executed on April 11, 2014, at Los Angeles, California.

MARJORIE K. DE JOHNETTE

KHM\35492


Document Number: 762965 1 Case No. 3:13-CV-1944 CAB BLM

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JAN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney RAYNA A. STEPHAN, Deputy City Attorney California State Bar No. 135001

Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533-5800 Facsimile: (619) 533-5856

Attorneys for Defendants CITY OF SAN DIEGO, JAN GOLDSMITH AND EMILY GARSON



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, A DELAWARE PUBLIC BENEFIT CORPORATION, AND COLBERN C. STUART, AN INDIVIDUAL, Plaintiffs v. SAN DIEGO COUNTY BAR ASSOCIATION, ET AL., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:13-CV-1944 CAB BLM DEFENDANTS CITY OF SAN DIEGO, JAN GOLDSMITH AND EMILY GARSON’S JOINDER AND SUPPLEMENT TO OMNIBUS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [FED.R.CIV.P.8(a), 8(e), 9(b), 12(b) (1), 12(b)(6) AND 41(b)] Date: June 6, 2014 Time: 2:00 p.m. Judge: Cathy Ann Bencivengo Court Room: 4C Trial: Not Set NO ORAL ARGUMENT UNLESS REQUESTED BY COURT

Defendants City of San Diego, Jan Goldsmith and Emily Garson

(City Defendants) respectfully submit this Joinder to Omnibus Motion to Dismiss,

Joinder to the County of San Diego’s Motion to Dismiss (III, V, VI, VII, VIII, IX,

and XI), and Supplement to Omnibus Motion to Dismiss First Amended Complaint.

/ / /

/ / /

/ / /



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DISCUSSION

1. MALICIOUS PROSECUTION/PROSECUTORIAL IMMUNITY

A. The Rooker-Feldman Doctrine

Plaintiff Stuart alleges that he is the victim of malicious prosecution and

prosecutorial misconduct by the City Defendants who conspired with other private

individual/entity defendants. However, the FAC is nothing more than

incomprehensible ramblings and conclusory allegations because Plaintiff Stuart is

disgruntled over his prior arrests, convictions in state court and ensuing prison

sentences. Plaintiff Stuart is barred from reframing his state court litigation here.

This Court is without jurisdiction, as instructed by the Rooker-Feldman doctrine, to

hear direct appeals from prior state court judgments. Cooper v. Ramos, 704 F.3d

772 (9th Cir. 2012).

Plaintiff’s purported claims for relief against the City Defendants fail as

insufficient facts have been pled under a cognizable theory and because there is a

lack of subject matter jurisdiction. Rule 12(b)(1) permits a defendant to move to

dismiss an action for lack of subject matter jurisdiction. See Savage v. Glendale

Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003)

In Thompson v. Santa Cruz Cnty. Human Servs. Dep’t, 12-CV-03894-LHK,

2013 WL 1750960 (N.D. Cal. Apr. 23, 2013), the Court applied the Rooker-

Feldman doctrine in dismissing claims against non-judicial defendants brought

under 42 USC §§1983, 1985, and 1986 for alleged misconduct including

“conspiracy” which occurred in the underlying State court custody proceedings.

The Ninth Circuit’s decision in Cooper v. Ramos, 704 F.3d 772 (9th Cir.

2012), illustrated the application of this doctrine. In Cooper the Plaintiff brought a

§ 1983 conspiracy claim alleging that, in violation of his substantive due process

rights, various public officials conspired to tamper with and falsify evidence during

the murder investigation and trial in which plaintiff was convicted of murder. The



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Ninth Circuit ruled that Plaintiff's federal case to obtain additional DNA testing of

evidence was inextricably intertwined with state court's order denying his request to

obtain DNA testing, and thus was barred by the Rooker-Feldman doctrine as

Plaintiff’s Federal claim could only be established by proving an agreement to

engage in evidence tampering, an issue on which the state court, in denying further

DNA testing in the criminal proceedings, had already determined that plaintiff's

allegations were speculative and unsupported.

Here, as in Cooper, Plaintiff Stuart should be barred from claiming that he

was wronged through the alleged prosecutorial misconduct and malicious

prosecution committed by the City Defendants, as this Court lacks subject matter

jurisdiction to essentially retry Plaintiff Stuart’s state court criminal case.

B. Litigation Privilege

The federal common law “litigation privilege” precludes Plaintiff’s lawsuit

against the City Defendants. The foundation for this privilege and immunity from

suit is founded upon the holding of Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir.

1991). In Fry, the privilege was described as:

Whether the government attorney is representing the plaintiff or the defendant, or is conducting a civil trial, criminal prosecution or an agency hearing, absolute immunity is “necessary to assure that ... advocates ... can perform their respective functions without harassment or intimidation.” Butz, 438 U.S. at 512, 98 S.Ct. at 2913. Given the similarity of functions of government attorneys in civil, criminal and agency proceedings, and the numerous checks on abuses of authority inherent in the judicial process, we reiterate our statement in Flood that “[t]he reasons supporting the doctrine of absolute immunity apply with equal force regardless of the nature of the underlying action.” 532 F.2d at 1251 (citation omitted). If the government attorney is performing acts “intimately associated with the “judicial phase” of the litigation, that attorney is entitled to absolute immunity from damage liability (emphasis added).

/ / / / / /



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Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991), treated as dictum/receded

from in, Stapley v. Pestalozzi, 12-16145, 2013 WL 4266907 (9th Cir. Aug. 16,

2013).

Although Plaintiff Stuart does not set forth a specific factual statement for the

claims against Defendant City Attorney Jan Goldsmith and Emily Garson, it is

reasonable to infer that this action is brought against them for some act or acts

within the scope of their prosecutorial functions in initiating, pursuing or in

presenting a criminal prosecution against Plaintiff. However, officials performing

prosecutorial functions are entitled to absolute immunity from damages liability

because their function is integral to the judicial process. Imbler v. Pachtman, 424

U.S. 409, 96 S. Ct. 984, (1976). Further, in Imbler, supra, the Court held that

absolute immunity of prosecuting officers was held equally applicable to civil

rights suits for damages under 42 U.S.C. §1983. Therefore, given the prosecutorial

immunity afforded to the City Defendants, Plaintiffs’ claims within the FAC related

to violations under 42 U.S.C. §1983, should be equally dismissed.

Additionally, California Government Code section 821.6 provides: “[a]

public employee is not liable for injury caused by his instituting or prosecuting any

judicial or administrative proceeding within the scope of his employment, even if

he acts maliciously and without probable cause.” “This immunity applies to a

public prosecutor.” Miller v. Filter, 150 Cal. App. 4th 652, 666 (2007). “This

immunity is also absolute, applying even if the prosecutor “acts maliciously and

without probable cause’ [citation omitted] such as by concealing exculpatory

evidence.” Id. “California courts construe [Government Code] section 821.6

broadly in furtherance of its purpose to protect public employees in the

performance of their prosecutorial duties from the threat of harassment through

civil suits.” Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007).

Therefore, the City Defendants are entitled to the litigation privilege, whether

the claim is brought under State or Federal law and Plaintiff Stuart’s Malicious



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Prosecution, Obstruction of Justice and Prosecutorial Misconduct claims should be

dismissed.

2. THERE IS NO SUPERVISORY LIABILITY

Any claim in the FAC regarding lack of supervision should fail, if based on

negligent supervision under state law. Under the California Tort Claims Act, all

tort liability against a public entity or its employees should be based on an

authorizing statute. Negligent hiring, training, and supervision is not a cognizable

statutory based theory of recovery. Searcy v. Hemet Unified Sch. Dist., 177 Cal.

App. 3d 792, 802 (1986); Cal. Gov’t Code section 815(a).

Additionally, a supervisor is not liable under §1983 unless “there exists either

(1) his or her personal involvement in the constitutional deprivation, or (2) a

sufficient causal connection between the supervisor’s wrongful conduct and the

constitutional violation.” Hansen v. Black, 885 F.2d 642 645-646 (9th Cir. 1989)

Here, there are no allegations regarding the City Attorney’s personal involvement

in the prosecution of Plaintiff Stuart, or any causal connection between the City

Attorney’s conduct and the violation.

3. THERE IS NO ENTITY LIABILITY

Plaintiff does not plead, independently, any facts to warrant liability against

the City. Any allusion to entity liability by this Plaintiff is dependent upon the

liability of the individual City employees. As demonstrated above, there is no claim

stated against the individual defendants. Therefore, no claim should stand against

the City. Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658 (1978).

Further, Plaintiff has also failed to plead the elements of entity liability under

Monell. Plaintiff failed to allege facts showing that one of the municipality’s

policies or customs directed the commission of a constitutional violation. Monell,

supra at 690-691. Evidence of a single, isolated or sporadic incident is an

insufficient basis for a Monell claim. Trevino v. Gates, 99 F.3d 911, 918 (9th

Cir.1996); see Stanley v. New York, 587 F.Supp. 393 (E.D.N.Y. 1984). A



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municipality cannot be held liable under §1983 on a respondeat superior theory for

constitutional violations committed by any of its officers or employees. Monell,

supra at 691, 694. Therefore, Plaintiff’s claims for Municipal Liability against

Defendant City of San Diego should be dismissed. 4. PLAINTIFFS’ STATE LAW CLAIMS ARE TIME BARRED

FOR FAILURE TO FILE A TIMELY CLAIM

With respect to the claims under state law, Plaintiffs failed to present a claim

to the City of San Diego in a timely manner, and therefore all of the state law

claims should be dismissed without leave to amend.

The California Government Tort Claims Act (“the Act”) established uniform

procedures for claims brought against public employees and public entities in the

State of California. Cal. Gov’t Code §§ 900-935.4 and 940-951. Under the Act,

the submission of a government damages claim to a government entity is a

condition precedent to any claim for money damages against the entity or its

employees. (Cal. Gov’t Code §945.4) The claim must be filed within six months of

the accrual of the cause of action. (Cal. Gov’t Code §945.4) The claims

presentation requirement is not required in actions brought under federal law, such

as Section 1983. See Donovan v. Reinbold (9th Cir. 1970) 433 F.2d 738.

However, if pendent causes of action in federal court are based on state claims,

those causes of action are subject to the claims presentation requirements of the

Act. Karim·Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir.

1988). In the case at bar, Plaintiffs filed their Complaint on August 20, 2013.

Plaintiffs failed to submit a timely claim to the City of San Diego. Not only was a

claim not filed prior to the filing of the subject lawsuit, it was not filed within the

specified statutory period after the date of occurrence giving rise to the claim.

Finally, since no allegations were made that any damage claim was filed, all claims

pursuant to state law are time barred.

/ / /



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5. PLAINTIFFS’ STATE AND FEDERAL CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS

California law prescribes a 2-year statute of limitations for personal injury

claims. Cal. Civ. Proc. Code §335.1. Further, section 1983, 1985, and 1986 claims

must be filed within the time specified by the state’s statute of limitations for

personal injury torts. Usher v. Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987).

Finally, the court held that malicious prosecution has a 2-year statute of limitations.

Stavropoulos v. Superior Court of the Los Angeles County, 141 Cal. App.4th 190

(2006). The Court in Stavropoulos held that the malicious prosecution cause of

action accrues at the time of entry of judgment in the underlying action in the trial

court.

Here, it appears that all of Plaintiff’s claims against the City Defendants

emanate from the underlying criminal action in state court whereby Plaintiff was

convicted and imprisoned. Plaintiff alleges in the FAC that following a series of

alleged prosecutorial misconduct, he was sentenced on March 1, 2011, and falsely

imprisoned. At the latest, the statute began to accrue on March 1, 2011. Plaintiffs’

Complaint was not filed until August 20, 2013, well beyond the expiration of the 2

year statute of limitations. Any allegations by Plaintiff of equitable tolling is not

substantiated or properly pled within the FAC. Therefore, all the claims against the

City Defendants are barred by the stature of limitations.

6. PLAINTIFF’S § 1983 CLAIMS ARE BARRED BY HECK V. HUMPHREY

Section 1983 by itself does not establish or create any substantive rights.

“[O]ne cannot go into court and claim a ‘violation of section 1983’ – for section

1983 by itself does not protect anyone against anything.” Chapman v. Houston

Welfare Rights Organization, 441 U.S. 600, 617 (1979). Rather, Section 1983

provides a cause of action against state and local officials who, acting within the

scope of their duties, have deprived an individual of any rights, privileges, or



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immunities guaranteed by the United States Constitution or other federal laws. 42

U.S.C. § 1983; Baker v. McCollan, 443 U.S. 137, 140 (1979).

Section 1983 does not permit collateral attacks on prior criminal proceedings

or judgments. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness could render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into questions by a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under section 1983.

Id. at 486-487 (citations omitted) (emphasis in original).

The Supreme Court has held that the threshold requirements of Heck apply

even to those claims challenging the validity of a particular procedure but not

directly attacking a conviction, sentence, or its result, since it is often the case that

“the nature of the challenge to the procedures could be such as necessarily to imply

the invalidity of the judgment.” Edwards v. Balisok, 520 U.S. 641, 645 (1997).

Claims potentially barred by Heck include wrongful arrest, false imprisonment,

malicious prosecution and conspiracy to bring false charges. Guerrero v. Gates,

442 F.3d 697, 703 (9th Cir. 2006).

Here, based on Heck v. Humphrey, supra, Plaintiff’s 1983 claims against the

City Defendants are barred and should be dismissed.

6. PLAINTIFFS’ FAILED TO PLEAD CLAIMS UNDER §§ 1985 AND 1986

In order to successfully state a section 1985 conspiracy claim, a plaintiff

must allege each element with particularity. Sherman v. Yakahi, 549 F.2d 1287,

1290 (9th Cir. 1977); Soto v. Schembri, 960 F. Supp. 751, 760 (S.D.N.Y. 1997).

This includes an express or implied agreement among the defendants, and actual

deprivation of rights in the form of overt acts in furtherance of the agreement.



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Chicago Miracle Temple Church, Inc. v. Fox, 901 F. Supp. 1333, 1347 (N.D. Ill.

1995). The FAC fails to state a claim under section 1985.

Section 1985(1) prevents a federal officer from performing duties. This

section is inapplicable as Plaintiff Stuart was not a federal officer.

Section 1985 (2) relates to obstructing justice in federal courts, and section

1985 (3) relates to deprivation of equal protection. These are equally inapplicable

here. None of these claims were plead with particularity in the FAC and instead

include conclusory allegations. In addition, the Supreme Court in Griffin

v. Breckenridge, 403 U.S. 88, 102 (1971), clearly held that a section 1985(3)

action required, “that there must be some racial, or perhaps otherwise class-

based invidiously discriminatory animus behind the conspirators’ action.”

Without question, allegations and proof of invidious discrimination motivation “is a

required element of a cause of action under section 1985(3).” Miller v. Indiana

Hosp., 562 F. Supp. 1259, 1282 (W.D. Pa. 1983) (emphasis added). A “dismissal

of the section 1985(3) claims for failure to allege or show some racial or other

class-based discriminatory animus behind the alleged conspirators’ actions” was

held to be proper. Mears v. Town of Oxford, Md., 762 F.2d 368, 374 (4th r. 1985).

Finally, Section 1986 “authorizes a remedy against state actors who have

negligently failed to prevent a conspiracy that would be actionable under §1985.”

Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 971 n.7 (9th Cir. 1994). Since the

FAC fails to state a claim under section 1985, then any claim under section 1986

cannot be sustained.

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /



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CONCLUSION

Based on the foregoing, and pursuant to the City Defendants’ joinder in the

Omnibus Motion to Dismiss and joinder in the County of San Diego’s Motion to

Dismiss (III, V, VI, VII, VIII, IX, and XI), it is respectfully requested that the First

Amended Complaint be dismissed without leave to amend as to the City of San

Diego, Jan Goldsmith, and Emily Garson (City Defendants).

Dated: April 11, 2014 JAN I. GOLDSMITH, City Attorney

By /s/ Rayna A. Stephan Rayna A. Stephan Deputy City Attorney Attorneys for Defendants CITY OF SAN DIEGO, JAN GOLDSMITH, AND EMILY GARSON [email protected]


Bruno W. Katz, Es (SBN 174876) Kelly A. Van Nort,sq._ (SBN 206400) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 655 West Broadway, Suite 900 San Diego, California 92101 Telephone: (619) 321-6200 Facsimile: (619) 321-6201 Bruno.katz wilsonelser.com Kelly.vannort wilsonelser.corn

Attorneys for Defendant, OFF DUTY OFFICERS, INC.



CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, a Delaware Corporation, LEXEVIA, PC, a California Professional Corporation, and COLBERT C. STUART, an individual,

Plaintiffs,

v.

SAN DIEGO COUNTY BAR ASSOCIATION, a California Corporation; SAN DIEGO COUNTY SHERIFF'S DEPARTMENT, a municipal entity; WILLIAM D. GORE, an individual, COUNTY OF SAN DIEGO, a municipal entity; SUPERIOR COURT OF SAN DIEGO COUNTY, a municipal entity; ROBERT J. TRENTACOSTSA, an individual; MICHAEL RODDY, an individual; JUDICIAL COUNCIL, a municipal entity; ADMINISTRATIVE OFFICE OF THE COURTS, a municipal entity; TANI G, CANTIL-SAKAUYE, an individual; COMMISSION ON JUDICIAL PERFORMANCE, a municipal entity; LAWRENCE J. SIMI: an individual; BRAD BATSON, an individual; NATIONAL FAMILY JUSTICE CENTER ALLIANCE, a California Corporation: LISA SCHALL. an

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

OFF DUTY OFFICERS, INC.'S JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT; ALTERNATIVELY, REQUEST TO ENLARGE TIME TO FILE MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT

Date: Time: Ctrm: Judge:

June 6, 2014

4C2:00 p.m.

Hon. Cathy Ann Bencivengo

[NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]

I

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1728386v.] OFF DUTY OFFICERS' JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS

3:13-cy-01944-CAB-BLB


individual; LORNA ALKSNE, an individual; OFF DUTY OFFICERS, INC., a business entity of unknown form., CHRISTINE GOLDSMITH, an individual; JEANNIE LOWE, an individual; WILLIAM MCADAM, an individual; EDLENE MCKENZIE, an individual; JOEL WOHLFEIL, an individual; CAROLE BALDWIN, an individual: LARRY BALDWIN,an individual; BALDWIN AND BALDWIN, a California professional corporation; LARRY CORRIGAN, an individual; WILLIAM HARGRAEVES, an individual; HARGRAEVES & TAYLOR, PC, a California Professional Corporation; TERRY CHUCAS, an individual; MERIDITH LEVIN,an individual; ALLEN SLATTERY, INC., a California Corporation, a Corporation; JAMS STOCKS, an individual; STOCKS & COLBURN, a California professional corporation; DR. STEPHEN DOYNE, an individual; DR. STEPHEN DOYNE, INC., a professional corporation; SUSAN GRIFFIN, an individual; DR. LORI LOVE, an individual; LOVE AND ALVAREZ PSYCHOLOGY, INC., a California corporation; ROBERT A, SIMON, PH.D., an individual; AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTE, a business entity of unknown form; ROBERT O'BLOCK, an individual; LORI CLARK VIVIANO, an individual; LAW OFFICES OF LORI CLARK VIVIANO, a business entity of unknown form; SHARON BLANCHET, an individual; ASHWORTH, BLANCHET, KRISTENSEN, & KALEMENKARIAN, a California Professional Corporation; MARILYN BIERER, an individual; BIERER AND ASSOCIATES, A California Professional Corporation; JEFFRY FRITZ, an individual; BASTE AND FRITZ, a professional corporation,

Defendants.

2

OFF DUTY OFFICERS' JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS 1728386v.1 3:13 -u-01944-CAB-BLB


TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF

RECORD:

PLEASE TAKE NOTICE that, pursuant to this Court's Order Setting

Briefing Schedule [Dkt. No. 107], Defendant, OFF DUTY OFFICERS, INC.

("ODO") hereby joins in the Notice of Defendants' Omnibus Motion to Dismiss

Plaintiffs' First Amended Complaint, Memorandum of Points and Authorities in

Support of Defendants' Omnibus Motion to Dismiss Plaintiffs' First Amended

Complaint, Request for Judicial Notice and Exhibits attached thereto, and

Declaration of Stephan D. Lucas [Mt. No. 131, 131-1, 131-2, 131-3], and the

grounds stated therein, and set for hearing before the Honorable Cathy Ann

Bencivengo, on June 6, 2014, at 2:00 p.m., in Courtroom 4C of the above-captioned

court.

Dismissal of Plaintiffs' First Amended Complaint is warranted, as explained

and set forth in detail in Defendants' Omnibus Motion to Dismiss Plaintiffs' First

Amended Complaint, on the following grounds:

1. Plaintiffs' First Amended Complaint should be dismissed with

prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure

to comply with the requirements of Federal Rules of Civil Procedure

8(a) and (e), and 9(b) violation of orders of this Court, and the rules of

this Court.


prejudice pursuant to Federal Rule of 12(b)(1) for lack of jurisdiction

under the Eleventh Amendment and/or the Rooker/Feldman doctrine.


prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief may be granted.

3

OFF DUTY OFFICERS' JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS 1728386v,1 3:13-cv-01944-CAB-BLB


4. Plaintiffs' First Amended Complaint and each claim therein is barred

by the statute of limitations.

5. Plaintiffs' 42 U.S.C. § 1983 count should be dismissed with prejudice

pursuant to Federal Rule of Civil Procedure 12(b)(6) because: (a) it

does not contain sufficient factual matter to state a claim for relief

against ODO and (b) ODO, a private entity, was not a state actor.

6. Plaintiffs' Lanham Act count should be dismissed with prejudice

pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) because:

(a) Plaintiffs lack standing to sue ODO and (b) the First Amended

Complaint does not contain sufficient factual matter to state a claim for

relief against ODO.

7. Plaintiffs' RICO count should be dismissed with prejudice pursuant to

Federal Rules of Civil Procedure 9(b)a12(b)(6) because it does not

contain sufficient factual matter to state a claim for relief against ODO.

Accordingly, pursuant to Federal Rules of Civil Procedure 8(a), 8(e), 9(b),

12(b)(1), 12(b)(6), and 41(b), each and every cause of action pled against ODO

should be dismissed without leave to amend.

This Joinder is based upon this Notice of Joinder, Notice of Defendants'

Omnibus Motion to Dismiss Plaintiffs' First Amended Complaint, Memorandum of

Points and Authorities in Support of Defendants' Omnibus Motion to Dismiss

Plaintiffs' First Amended Complaint, Request for Judicial Notice and Exhibits

attached thereto, Declaration of Stephan D. Lucas [Dkt. No, 131, 131-1, 131-2, 131-

3] and supporting documents previously filed, and such further oral and/or

documentary evidence as may properly be presented at the time of the hearing of

this matter, if any.

Moreover, service was not even attempted on ODO as a party to this litigation

until after entry of the Order Setting Briefing Schedule [Dkt. No. 107] was entered

on February 26, 2014, and therefore, ODO4 did not have notice of the deadlines

OFF DUTY OFFICERS' JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS 1728386v.1 3:13-ev-01944-CAB-BLI3


therein. Accordingly, ODO respectfully requests the Court deem the instant Joinder

as timely. Alternatively, ODO respectfully requests the Court enlarge the time for

ODO to bring a motion to dismiss Plaintiffs' First Amended Complaint.

Dated: April 17, 2014 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

/s/ Kelly A. Van Nort By:

Bruno W. Katz, Esq. Kelly A. Van Nort, Esq. Attorneys for Defendant, OFF DUTY OFFICERS. INC.

5

1728386v.1 OFF DUTY OFFICERS' JOINDER IN DEFENDANTS' OMNIBUS MOTION TO DISMISS

3:13-cv-01944-CAB-BLB


Documents

131 Master Omnibus and Joinder