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
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A Professional Corporation
Attorneys at Law
4350 Executive Drive, Suite 260
4 San Diego, California 92121
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(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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v.
Plaintiffs,
SAN DIEGO COUNTY BAR
16 ASSOCIATION, a California corporation;
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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
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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
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C. Violation Of Rules Warrant Dismissal Under Rule 41(b) ....................... 6
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D. Leave To Amend Should Be Denied ........................................................... 7
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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
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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
7
8
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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
14
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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
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616 F.3d 963 (9th Cir. 2010) ............................................................................. 14
24 Lantzy v. Centex Homes, 31Cal.4th363 (2003) ........................................................ 10
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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
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1
McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ......................................................... 5
2 Mendoza v. Golden West Savings Assoc. Services Co.
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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
6
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
10
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Presidio Group, LLC v. Juniper Lakes Development, LLC,
2010 WL 1331138 ................................................................................................ 8
12
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
15
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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
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1 I
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 8
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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
20 granted.
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All references to Rules are to the Federal Rules of Civil Procedure unless otherwise
indicated.
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II
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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1 represented by Dean Browning Webb, pro hac vice.
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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 ~ 3 1 9 ] 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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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.)
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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 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"
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
28 his arrests or divorce or his personal problems with Dr. Doyne, but then the claim
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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 f ~ l O l 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
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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
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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 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 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
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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
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
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 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
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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
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 A c t o r ~
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
13 3:13-cv-1944-CAB-BLM
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
14 3:13-cv-1944-CAB-BLM
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
15 3:13-cv-1944-CAB-BLM
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]
16 3:13-cv-1944-CAB-BLM
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CCFC/Stuart v. San i ~ 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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Defs. Simi and Battsons Joinder and Supplement to Mot. to Dismiss First Am. Compl.
(13-cv-1944-CAB-BLM)
KAMALA D. HARRIS
Attorney General of California
RICHARD F. WOLFE
Supervising Deputy Attorney General
State Bar No. 85346
110 West A Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2482
Fax: (619) 645-2012
E-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 FOR
FAMILIES AND CHILDREN., a
Delaware Corporation, LEXEVIA, PC,
a California Professional Corporation,
and COLBERN C. STUART, an
individual,
Plaintiffs,
v.
ASSOCIATION, et al.,
Defendants.
13-cv-1944-CAB (BLM)
DEFENDANTS SIMI AND
BATTSONS 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
Action Filed: August 20, 2013
NO ORAL ARGUMENT UNLESS
REQUESTED 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 dismissed
with 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 Simi
and Battson. However, any such claims would not be cognizable. To prevail on a
request for injunctive relief, the moving party must either show a likelihood of
success on the merits and the possibility of irreparable injury, or demonstrate that
serious questions are raised and the balance of hardships tips sharply in the
movants 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 Courts
decisions consistently hold that a citizen lacks standing to contest the policies of
the prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution. 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 any
particular 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 examiners
and investigators employed by the commission shall be absolutely
immune from suit for all conduct at any time in the course of their
official 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. HARRIS
Attorney General of California
s/Richard F. Wolfe
RICHARD F. WOLFE
Supervising Deputy Attorney General
Attorneys for Defendants
Lawrence J. Simi, and Brad Battson
SD2013705982
70852420.doc
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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. 183986
Daniel S. Agle, Bar No. 251090
Kyle T. Overs, Bar No. 286158
KLINEDINST PC
501 West Broadway, Suite 600
San Diego, California 92101
(619) 239-8131/FAX (619) 238-8707
[email protected]
[email protected]
[email protected]
Attorneys for Defendant
MARILYN BIERER d.b.a. BIERER
AND ASSOCIATES, erroneously sued
as BIERER AND ASSOCIATES, a
California Professional Corporation
FAMILIES AND CHILDREN., a
Delaware Public Benefit
Corporation, and COLBERN C.
STUART, an individual,,
Plaintiffs,
v.
ASSOCIATION, a California
Corporation, et al.,
Defendants.
Case No. 13-cv-1944 CAB (BLM)
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO DISMISS
FIRST AMENDED COMPLAINT
Date: June 6, 2014
Time: 2:00 p.m.
Courtroom: 4C
Magistrate Judge: Barbara L. Major
Complaint Filed: August 20, 2013
Trial Date: None set
[NO ORAL ARGUMENT UNLESS
REQUESTED 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 Bierers 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 8s 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
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 to
this action, yet Lexevia is still referenced throughout the First Amended Complaint
and its exhibits.
2
Bierer joins and incorporates the arguments of section IV in so much that
Plaintiffs lack jurisdiction under FRCP 12(b)(1) and to any extent that Plaintiffs
allege that Bierer is somehow responsible for orders and judgments that Plaintiffs
take 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 Stuarts 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 plaintiffs 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 Complaints claims relating to the Stuart
Assault and Bierers 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 FACs claims relating to the Stuart Assault and Bierers
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 Californias 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 Californias 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 Stuarts ex-wife in a 2007 divorce proceeding. (FAC 237-250,
1007-1008.) Given that this representation of Stuarts 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 Bierers professional duties are also barred by the
statute of limitations.
C. The First Amended Complaints 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 FACs 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
participatein the conduct of such enterprises 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 by
Colbern Stuart, contains flat-out lies about Stuart being a licensed attorney in
California, 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 countrys 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 the
implausible assertions that these RICO enterprises are involved in interstate and
foreign commerce as domestic violence orders may be enforced in other states,
child support can be enforced in other countries by revoking passports, child
support awards can be enforced in U.S. Military Courts, and family affairs is a
worldwide industry. (FAC 962.) If these allegations were enough to establish
interstate or foreign commerce, every single action by any person would constitute
interstate or foreign commerce because one of the actors could potentially move to
a 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. Agle
Heather L. Rosing
Daniel S. Agle
Kyle T. Overs
Attorneys for Defendant
MARILYN BIERER d.b.a. BIERER
AND ASSOCIATES, erroneously
sued as BIERER AND ASSOCIATES,
a California Professional Corporation
15869676v1

DEFENDANTS AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTEAND ROBERT
OBLOCK 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

Attorneys for Defendants American College of Forensic Examiners Institute and
Robert L. OBlock


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

Plaintiff,

vs.

corporation; et al.,

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

DEFENDANTS AMERICAN
COLLEGE OF FORENSIC
EXAMINERS INSTITUTE AND
ROBERT OBLOCK 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

Complaint Filed: August 20, 2013



____________________________________________________________________________________________
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 OBlock (OBlock) join in the
omnibus Motion to Dismiss Plaintiffs First Amended Complaint (the Omnibus
Motion to Dismiss) filed by defendant San Diego County Bar Associations
pursuant to the courts 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 OBlock.
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 OBlock 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 OBlock
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 OBlock
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 OBlock 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
OBlock because neither ACFEI or OBlock 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 OBlock
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 OBlock 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 OBlock
The First Amended Complaint, and each and every purported cause of action
alleged therein, should be dismissed with prejudice as to ACFEI and OBlock 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 OBlock or ACFEI. Hence, ACFEI and OBlock 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 OBlock pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure because neither ACFEI nor OBlock 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 OBlock is subject to personal
jurisdiction before this Court. ACFEI and OBlock 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
OBlock pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure because
neither ACFEI nor OBlock 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 OBlock is subject to venue in this judicial district. ACFEI and OBlock
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
American College of Forensic Examiners
Institute and Robert OBlock


____________________________________________________________________________________________
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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

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. OF
MOT. TO DISMISS FIRST AM. COMPL.
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1
JAMES B. GILPIN, Bar No. 151466
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]
BEST BEST & KRIEGER LLP
655 W. Broadway, 15th Floor
San Diego, CA 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
SUPERIOR COURT OF CALIFORNIA, COUNTY
OF SAN DIEGO (erroneously sued as SUPERIOR
COURT OF SAN DIEGO COUNTY); HON.
ROBERT J. TRENTACOSTA, Presiding Judge of
the Superior Court (erroneously sued as Robert J.
Trentacosta); MICHAEL M. RODDY, Executive
Officer of the Superior Court; JUDICIAL
COUNCIL OF CALIFORNIA; HON. STEVEN
JAHR, Administrative Director of the Courts;
ADMINISTRATIVE OFFICE OF THE COURTS;
HON. TANI G. CANTIL-SAKAUYE, Chief Justice
of California; HON. LISA SCHALL, Judge of the
Superior Court; HON. LORNA A. ALKSNE, Judge
of the Superior Court; HON. CHRISTINE K.
GOLDSMITH, Judge of the Superior Court; HON.
JEANNIE LOWE, Commissioner of the Superior
Court (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 Superior
Court; HON. MICHAEL GROCH, Judge of the
Superior Court; and KRISTINE P. NESTHUS
FAMILIES AND CHILDREN, et al.,
Plaintiffs,
v.
Defendants.
Case No. 13-cv-1944-CAB (BLM)
Judge: Hon. Cathy Ann Bencivengo
JUDICIAL DEFENDANTS
SUPPLEMENTAL MEMORANDUM
OF POINTS AND AUTHORITIES IN
SUPPORT OF OMNIBUS MOTION TO
DISMISS FIRST AMENDED
COMPLAINT
Date: June 6, 2014
Time: 2:00 p.m.
Courtroom: 4C
REQUESTED BY COURT]
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25508.00086\8697610.1 -1-
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The Judicial Defendants
1
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 Courts Order Setting Briefing Schedule. (Doc. No. 107.)
I.
INTRODUCTION
On March 28, 2014, pursuant to the Courts 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;
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The Judicial Defendants consist of (1) the Superior Court of California, County of San
Diego, erroneously sued as Superior Court of San Diego County (Superior Court), (2) the
Honorable Robert J. Trentacosta, Presiding Judge of the Superior Court, erroneously sued as
Robert 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 the
Courts, (6) Administrative Office of the Courts, (7) the Honorable Tani G. Cantil-Sakauye, Chief
Justice of California, (8) the Honorable Lisa Schall, Judge of the Superior Court, (9) the
Honorable 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 the
Superior 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) the
Honorable 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 Courts Director of Legal
Services 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 FACTS
SUFFICIENT TO STATE A CLAIM AGAINST ANY JUDICIAL
DEFENDANTS
Count 3 of the FAC alleges Section 1983 claims against Judges Goldsmith
and Groch, among others, relating to Stuarts 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 Claim
Against 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 Stuarts 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 A
COGNIZABLE CLAIM AGAINST ANY JUDICIAL
DEFENDANTS
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 Courts Director of Legal Services and General Counsel, Mr. Roddy, the
Superior Courts 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 Courts General Order 550. Finally, Ms. Nesthus
communications are protected by Californias 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 FACTS
SUFFICIENT TO STATE A CLAIM FOR SUPERVISOR
LIABILITY 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 subordinates 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
supervisors 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 JUDICIAL
DEFENDANTS IS BARRED BY ELEVENTH AMENDMENT
IMMUNITY
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.
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(Doc. No.
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Eleventh Amendment immunity also bars claims against judges and court employees in
their official capacities, as they are considered arms of the state. Simmons v. Sacramento County
Superior 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 CANNOT
STATE FACTS SUFFICIENT TO STATE A CLAIM UNDER
SECTIONS 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 Sheriffs
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-
FELDMANDOCTRINE 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 Stuarts 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 PROSPECTIVE
RELIEF
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 Commn, 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. Green
JAMES B. GILPIN
MATTHEW L. GREEN
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO (erroneously
sued as SUPERIOR COURT OF SAN
DIEGO COUNTY); HON. ROBERT J.
TRENTACOSTA, Presiding Judge of the
Superior Court (erroneously sued as Robert
J. Trentacosta); MICHAEL M. RODDY,
Executive Officer of the Superior Court;
JUDICIAL COUNCIL OF CALIFORNIA;
HON. STEVEN JAHR, Administrative
Director of the Courts;
ADMINISTRATIVE OFFICE OF THE
COURTS; HON. TANI G. CANTIL-
SAKAUYE, Chief Justice of California;
HON. LISA SCHALL, Judge of the
Superior Court; HON. LORNA A.
ALKSNE, Judge of the Superior Court;
HON. CHRISTINE K. GOLDSMITH,
Judge of the Superior Court; HON.
JEANNIE LOWE, Commissioner of the
Superior Court (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
Superior Court; HON. MICHAEL
GROCH, Judge of the Superior Court; and
KRISTINE 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 courts 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

Attorneys for Defendant County of San Diego (also erroneously sued herein as San
Diego County Sheriffs Department), and William D. Gore

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Delaware Corporation, LEXEVIA, PC, a
California Professional Corporation, and
COLBERN C. STUART, an individual,

Plaintiffs,

v.

ASSOCIATION, a California Corporation;
et al.,

Defendants.

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

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
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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STATEMENT OF CASE
Plaintiff Stuarts 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 Stuarts 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 Sheriffs 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 Dept, 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 states 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 municipalitys policies or customs directed the commission of a constitutional
violation. Monell v. N.Y. City Dept 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 Sheriffs Department maintain a culture
of deliberate indifference, fail to train and supervise, make policies for the States
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 Dept, 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. Admr 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 plaintiffs 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 Stuarts 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.4
th
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 Stuarts 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 Assn 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.
Moore v. Kayport Package Express, 885 F.2d 531, 541 (9th Cir. 1989); see also Alan

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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 SHERIFFS DEPARTMENT IS NOT A PROPER
DEFENDANT IN THIS ACTION

The San Diego County Sheriffs 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 Sheriffs department. The section 1983 claims are not cognizable against

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the Sheriffs 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 Dept, 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 Gores 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
Sheriffs Department) and William Gore

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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
Plaintiff,
vs.
Defendants.
Case No.: 13cv1944 CAB (BLM)
Judge: Hon. Cathy Ann Bencivengo
Complaint Filed: August 20,2013
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
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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
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: (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
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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
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(l3cv1944 CAB (BLM
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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
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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 (9
th
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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(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
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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
(9
th
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 (9
th
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 (8
th
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 (6
th
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.
(l3cv1944 CAB (BLM
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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
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
(l3cv1944 CAB (BLM
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____________________________________________________________________________
DEFENDANTS JOINDER AND SUPPLEMENT TO OMNIBUS MOTION TO DISMISS FIRST AMENDED
COMPLAINT
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J ames R. Rogers/SBN 99102
[email protected]
Keith E. Zwillinger/SBN 99216
[email protected]
LAW OFFICES OF J AMES R. ROGERS
125 S. Highway 101, Suite 101
Solana Beach, CA 92075
Telephone: 858-792-9900
Facsimile: 858-792-9509

LORI LOVE; LARRY CORRIGAN;
LOVE & ALVAREZ PSYCHOLOGY, INC.




Plaintiffs,

v.


Defendants.

________________________________
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Case No. 13-CV-1944 CAB (BLM)
[Hon. Cathy Ann Bencivengo]

DEFENDANTS' J OINDER AND
SUPPLEMENT TO OMNIBUS
AMENDED COMPLAINT

Date: J une 6, 2014
Time: 2:00 p.m.
Courtroom: 4C
Trial Date: None

REQUESTED BY COURT

Defendants LARRY CORRIGAN ("Corrigan"), LORI LOVE and LOVE &
ALVAREZ PSYCHOLOGY, INC. (collectively "Love") respectfully submit the
following J oinder and Supplement to Omnibus Motion to Dismiss First Amended
Complaint.

2
____________________________________________________________________________
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 plaintiffs 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 J ustice [not alleged against Love or
Corrigan];
COUNT FIVE--Obstruction of J ustice [not alleged against Love or
Corrigan];

3
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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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 ELEVENDoyne 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

4
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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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

5
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
plaintiffs 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

6
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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Hosp. (2010) 2010 U.S. Dist. LEXIS 17406, 3 [citing Jensen v. Lane County, 222
F.3d 570, 574 (9
th
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 partys 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 plaintiffs
Complaint). There are no allegations that even remotely suggest that any State

7
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
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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 entitys 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 (9
th
Cir. 2002). This test requires a substantial degree of

8
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 plaintiffs rights.
Based on the foregoing Love and Corrigan cannot be held liable for any
state action claim as noted above.
/ / / / / /
/ / / / / /
/ / / / / /
/ / / / / /
/ / / / / /

9
____________________________________________________________________________
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 J AMES R. ROGERS

James R. Rogers
By: _________________________________
J ames R. Rogers, Esq.
LORI LOVE; LARRY CORRIGAN;
LOVE & ALVAREZ PSYCHOLOGY,
INC.

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CHARLES R. GREBING, State Bar No. 47927
c gr eb in g@win gert I aw. c o m
ANDREW A. SERVAIS, State Bar No. 239891
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DWAYNE H. STEIN, State Bar No. 261841
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WINGERT GREBING BRUBAKER & JUSKIE LLP
One AmecaPlaza, Suite 1200
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San Diego, CA 92101
(619) 232-81 5 I
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Fax (619) 232-466s
SHARON BLANCHET ANd ASHWORTH, BLANCHET, CHRISTENSEN &
KALEMKIARIAN
SOUTHERN DISTRICT OF' CALIFORNIA
Comoration. LEXEVIA. PC. a California
Professionaf Corooratio. and COLBERN
C. STUART, an individul,
Plaintiffs,
Case No.: 3: I 3-cv-01 944-CAB-BLM
DEFENDANTS SHARON
BLANCHET AND ASH\ryORTH,
BLANCHET. CHRISTENSEN &
KALEMKIAfuAN'S JOINDER TO
OMNIBUS MOTION TO DISMISS
COMPLAINT, AND
SUPPLEMENTAL BRIEF IN
SUPPORT OF MOTION TO
DISMISS
vs.
ASSOCIATION.
SAN DIEGO CO
a California C
UNTY S
,S
Date: June 6, 2014
Time: 2:00 o.m.
Ctrm: Courtroom 4C
Judge: Cathy Ann Bencivengo, Presiding
{oo5s577.DOCX}
1
DEFEND.A,NTS ABC&K'S JOINDBR AND SUPPLEMENTAL BRJEF
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Case No. 3:13-CV-01944-CAB-BLM
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BATSON. an individual; NATIONAL
FAMILY JUSTICE CENTER ALLIANCE,
a California LISA SCHALL,
FORENSIC
{00655577.DOCX}
2
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DEFENDANTS ABC&K,S JOINDER AND SUPPLEMENTAL BRIEF,.
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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 frm's malpractice or breach of
fduciary 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}
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DEFENDANTS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF
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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 Claim 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
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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 & Mf.,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 for
maintaining 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 especially
great since lawyers are essential to the primary governmental function of
administering
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," Plaintif 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 Plaintif' 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 Srart. 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}
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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 ltigated
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
ll
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 AID SUPPLEMENTAL BRIEF
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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 Plaintif 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-Pe1gl 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
{005ss77.Docx}
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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, Plaintif 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 Plaintif 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
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CASC NO.3:13-CV.01944-CAB-BLM
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Federal Communications Act, and no sham is claimed, they cannot form
the basis of liability under RICO.
Id. at942.
For all of these reasons, Plaintif' 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 & JUSKIE
LLP
By: s/ Charles R.
g
CHARLES R. GREBING
ANDREW A. SERVAIS
DWAYNE H. STEIN
Attornevs for Defendants
SHARN BLANCHET ANd
ASHWORTH. BLANCHET"
CHRISTENSN & KALEMKIAzuAN
Email : cgre aw.com
Email:
Email:
aw.com
v/.com ds
{00655577.DOCX }
10
DEFENDAI\TS ABC&K'S JOINDER AND SUPPLEMENTAL BRIEF
_
CASC NO.3:13-CV.01944-CAB.BLM
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c gr eb ing@w ing er tl aw, c o m
as erv i s
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in ger tl aw. c om
DWAYNIE H. STEIN, State Bar No. 261841
ds t e n@w ing er tl aw. c o m
One AmericaPlaza" Suite 1200
600 West Broadway
San 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
Plaintif,
VS.
SANI DIEGO COUNTY BAR
ASSOCIATION, a California Corporation;
SAN DIEGO COLTNTY SFIERIFF'S
DEFENDANT NATIONAL FAMILY
JUSTICE CENTER ALLIAI{CE'S
JOINDER TO OMNIBUS MOTIOI{
TO DISMISS PLAII{TIFFS' FIRST
AMET\DED COMPLAINT, ANI)
SUPPORT OF MOTIOI{ TO
DISMISS
June 6,20I Date:
Time:
Ctrm:
4
4C
2:00 .m.
Judge: Cathy Ann Bencivengo, Presiding
{00655578.DOCX}
1
DEFENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF
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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)OMNIBUS 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. SUPPLEMENT
AL 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 Clai ms Asainst Alliance
1. The Allesations As Alliance Cons st of Protected tv
The Noerr-Pennington
doctrine provides that "those
who petition any department
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 Unlmited
(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. (Kerney 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)
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DEF'ENDANT NFJCA'S JOINDER AND SUPPLEMENTAL BRIEF_ CASE NO.3:13-CV-01944-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,Plaintif' 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}
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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 Sos, the court described a similar situation of a RICO suit predicated on
"fraudulent discovery conduct in prior litigation that induced the plaintif 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, Plaintif' 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.
(Sos v. DIRECTV, Inc., suprq) 437 F .3d at p. 942.)
Thus, Plaintif' 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
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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
LLP
By: s/ Chqrles R. Grebins
CHARLES R. GREBING
ANDREW A. SERVAIS
D\MAYNE H. STEIN
Attornevs
FAMILY
for Defendan NATIO}{AL
JUSTICE
ALLIANCE
Email : cgreb aw.com
Email : aservals w.com
Email:
.com
{0055578.DOCX}
6
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CasE NO. 3:13.CV-01944-CAB-BLM
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c gr e b in g@w nger tl aw. c om
a s erv ai s
@w
in ger tl aw. c om
DWAYNE H. STEIN, State Bar No. 261841
ds t ein@w in ger tl w. c om
One AmericaPlaza, Suite 1200
600 West Broadway
San Diego, CA 92101
(619) 232-815 1
;
Fax (619) 232-466s
LORI CLARK VIVIANO ANd LAW OFFICES OF LORI CLARK VIVIANIO
Comoration. LEXEVIA. PC, a California
Professionaf Corporation, and COLBERN
C. STUART, an individual,
Plaintiffs,
Case No. : 3 : 1 3- :v-01944-CAB-BLM
DEFEI{DANTS LORI CLARK
VIVIANO AND LAW OFFICES OF
LORI CLARK VIVIANO'S JOINDER
TO OMNIBUS MOTION TO
DISMISS PLAINTIFFS' FIRST
AMEI{DED COMPLAINTO AND
SUPPORT OF MOTION TO
DISMISS
VS
AS SOCIATION, a California Corpo-ration;
SAN DIEGO COLINTY STTERIFF'S
DEPARTMENT. a municipal entity;
WILLIAM D. GORE, an individual,;
COLINTY OF SAN DIEGO, a municipal
entitv; SUPERIOR COURT OF SAN
-
DIEGO COLTNTY, a munlcipal entity;
ROBERT J. TRE|ITACOSTSA, an
individual; MICHAEL RODDY, an
individual; JUDICIAL COLINCIL, a
municioal entitv: ADMINISTRATIVE
OFFICE oF TfIl CouRTS, a municipal
entitv; TANI G. CANTIL-SAKAUYE, an
indiidual; COMMISSION ON JLIDICIAL
PERFORMANCE. a municipal entitv;
LAWRENCE J. SMI, an individual;BRAD
BATSON, an individual; NATIONAL
Date:
Time:
Ctrm:
Judge
June 6, 2014
2:00 n.m.
Courtroom 4C
Cathy Ann Bencivengo, Presiding
{00655579.DOCX}
1
DEFENDANTS' VIVIANO JOINDER AND SUPPLEMENTAL BRIEF
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FAMILY JUSTICE CENTER ALLIANCE,
a California LISA SCHALL,
FORENSIC INS
{oo655579.DOCX}
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DEFENDANTS, VIVIANO JOINDER AND SUPPLEMENTAL BRIEF
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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 Plaintif' 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
Malpractice
o'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 Engneering & 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}
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approved balance of federal and state
judicial
responsibilities.
(1d.,

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 for
maintaining 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. Vrginia 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. & Plannng Ass'n (2009) l7l Cal.App.4th 1356,l39I
(Cal. App. 6th Dist. 2009)
{0065557e.DOCX}
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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
The Noerr-Pennington doctrine provides that "those who petition any department
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 Californa
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}
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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 Plaintif' claims, which seek to impute protected
{00655579,DOCX}
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Case No. 3; 13-CV-01944-CAB-BLM
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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 Plaintif' First Amended Complaint with
prejudice.
Dated: April Il,2Al4
Re sp ectfully submitted,
LLP
By s/ Charles R. Grebins
CHARLES R. GREBING
ANDREW A. SERVAIS
D\MAYNE H. STEIN
Attornevs for Defendants
LORI CTANT VIVIANO ANd LAW
OFFICES OF LORI CLARK VIVIANO
Email:
Email:
Email:
aservals
dste
.com
com
.com
{00655579.DOCX)
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CAsC NO. 3:13.CV-01944-CAB-BLM
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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
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)
Plaintiffs,
vs.
Defendants.
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Case No. 13-cv-01944-CAB-BLM
LAWYER DEFENDANTS
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: J une 6, 2014
Time: 2:00p.m.
J udge: Hon. Cathy Ann Bencivengo
Courtroom 4C
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-i-

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 Pursuant
to 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 TO
FEDERAL RULE OF CIVIL PROCEDURE 9(b) .........................................9
III. PLAINTIFFS ARE NOT ENTITLED TO PROSPECTIVE RELIEF......10
IV. CONCLUSION..............................................................................................10
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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 Dept, 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. Assn, 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.4
th
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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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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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-

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 J anis 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 Dept, 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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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, 26667 (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, Stuarts 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).
Stuarts 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, Stuarts 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 Stuarts 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 sheriffs
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
Stuarts 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. Assn, 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.4
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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 to
Cal. Civil Code 47(b) Fail
The FACs description of the Stuart Assault alleges that during the SDCBA
seminar, J udge Lorna A. Alksne and other unspecified individuals conferred with San
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Diego Sheriffs Deputies prior to the sheriffs deputies and off-duty officers
approaching Stuart. [See FAC 126-128.] Significantly, plaintiffs do not allege that
the Lawyer Defendants even spoke to the sheriffs 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 Sheriffs 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, LLP
750 B Street, Suite 2550
Telephone: (619) 544-3204
(619) 544-3216
Facsimile: (213) 630-1027
[email protected]
[email protected]
Attorneys for Defendants,
TERRY CHUCAS and SUSAN GRIFFIN
FAMILIES AND CHILDREN.,
a Delaware Corporation, and
COLBERNC. STUART, an individual,
Plaintiffs,
vs.
corporation, et al.,
Defendants.
CASE NO. 3:13-cv-01944-CAB-BLM
NOTICE OF JOINDER AND JOINDER
TO OMNIBUS MOTION TO DISMISS
COMPLAINT; SUPPLEMENTAL
BRIEF
[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.
Ctrm: 4C
Assigned Judge: Hon. Cathy Ann Bencivengo
Magistrate: Hon. Barbara Lynn Major
Action Filed: August 20, 2013
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 TERRYCHUCAS and SUSANGRIFFINhereby
join in the Notice of Defendants' Omnibus Motion to Dismiss Plaintiffs' First Amended
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Complaint, Memorandumof 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' LanhamAct 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. Och
KENNETH H. MORENO
J. LYNN FELDNER
GINA E. OCH
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MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF SUPPLEMENTAL BRIEF
Defendants TERRYCHUCAS (hereinafter "Mr. Chucas") and SUSANGRIFFIN
(hereinafter "Ms. Griffin") submit the following Memorandumof 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.4
th
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 plaintiffs suffering severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the defendants outrageous
conduct.'"'" [Citations.]' [Citation.]" Plotnik v. Meihaus, 208 Cal.App.4
th
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 (9
th
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 (10
th
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 claimrequires
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 (9
th
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 claimunder 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 (9
th
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 LanhamAct "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 (9
th
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 (9
th
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 (9
th
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 (9
th
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 Plaintiffsor 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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8 3:13-cv-01944-CAB-BLM
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 (9
th
Cir. 1996) ("Aparty 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 (9
th
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 LanhamAct, 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 (9
th
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 CCFCon 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
harmqualifies as injury to his business or property; and (2) that his harmwas '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 (9
th
Cir. 2008) (internal
citation omitted). Here, Plaintiffs have not alleged harm to a specific business or
property interestor 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 fromthis action.
DATED: April 11, 2014 MURCHISON & CUMMING, LLP
By: s/ Gina E. Och
KENNETH H. MORENO
J. LYNN FELDNER
GINA E. OCH
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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. I
am employed in the County of Los Angeles, State of California. My business address
is 801 South Grand Avenue, Ninth Floor, Los Angeles, California 90017-4613.
On April 11, 2014, a true copy of the following document described as
NOTICE OF JOINDER AND JOINDER TO OMNIBUS MOTION TO DISMISS
PLAINTIFFS' FIRST AMENDED COMPLAINT; SUPPLEMENTAL BRIEF
on the interested parties in this action as follows:
CM/ECF SERVICE: By electronically filing the foregoing document using
the CM/ECF system maintained by the CM/ECF system of the United States District
Court, Southern District of California website. Service to users who have consented to
electronic service is deemed complete upon the transmission of the Notice of
Electronic Filing.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that I am employed in the office of a
member 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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J AN 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
Telephone: (619) 533-5800
Facsimile: (619) 533-5856

Attorneys for Defendants CITY OF SAN DIEGO,
J AN GOLDSMITH AND EMILY GARSON

FAMILIES AND CHILDREN, A
DELAWARE PUBLIC BENEFIT
CORPORATION, AND COLBERN C.
STUART, AN INDIVIDUAL,

Plaintiffs

v.

ASSOCIATION, ET AL.,

Defendants.

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DEFENDANTS CITY OF SAN
DIEGO, JAN GOLDSMITH AND
EMILY GARSONS 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: J une 6, 2014
Time: 2:00 p.m.
J udge: Cathy Ann Bencivengo
Court Room: 4C
Trial: Not Set

REQUESTED BY COURT

Defendants City of San Diego, J an Goldsmith and Emily Garson
(City Defendants) respectfully submit this J oinder to Omnibus Motion to Dismiss,
J oinder to the County of San Diegos 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 (9
th
Cir. 2012).
Plaintiffs 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 (9
th
Cir.2003)
In Thompson v. Santa Cruz Cnty. Human Servs. Dept, 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 Circuits 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
Plaintiffs 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 Stuarts state court criminal case.
B. Litigation Privilege
The federal common law litigation privilege precludes Plaintiffs 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 J an 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 Stuarts Malicious

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Prosecution, Obstruction of J ustice 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. Govt 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 supervisors wrongful conduct and the
constitutional violation. Hansen v. Black, 885 F.2d 642 645-646 (9
th
Cir. 1989)
Here, there are no allegations regarding the City Attorneys personal involvement
in the prosecution of Plaintiff Stuart, or any causal connection between the City
Attorneys 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 municipalitys
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, Plaintiffs 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. Govt 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. Govt Code 945.4) The claim must be filed within six months of
the accrual of the cause of action. (Cal. Govt 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. KarimPanahi 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 states statute of limitations for
personal injury torts. Usher v. Los Angeles, 828 F.2d 556, 558 (9
th
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.4
th
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 Plaintiffs 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. PLAINTIFFS 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, Plaintiffs 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 (9
th
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 (4
th
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 (9
th
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 Diegos 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, J an Goldsmith, and Emily Garson (City Defendants).

Dated: April 11, 2014 J AN I. GOLDSMITH, City Attorney

By /s/ Rayna A. Stephan
Rayna A. Stephan
Deputy City Attorney

CITY OF SAN DIEGO, J AN
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
Telephone: (619) 321-6200
Facsimile: (619) 321-6201
Bruno.katz wilsonelser.com
Kelly.vannort wilsonelser.corn
Attorneys for Defendant,
OFF DUTY OFFICERS, INC.
Delaware Corporation, LEXEVIA, PC,
a California Professional Corporation,
and COLBERT C. STUART, an
individual,
Plaintiffs,
v.
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
COMPLAINT; ALTERNATIVELY,
REQUEST TO ENLARGE TIME
TO FILE MOTION TO DISMISS
COMPLAINT
Date:
Time:
Ctrm:
Judge:
June 6, 2014
4C
2:00 p.m.
Hon. Cathy Ann Bencivengo
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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
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
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
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
3:13-cv-01944-CAB-BLB

131 Master Omnibus and Joinder

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

1 Stephen D. Lucas (74726)

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