1 Colbern C. Stuart III Email: Cole.Stuart@Lexevia.com 2 4891 Pacific Highway Ste.

102 San Diego, CA 92110 3 Telephone: 858-504-0171 Facsimile: 619-231-9143 4 In Pro Se 5 Dean Browning Webb (pro hac vice pending) Email: ricoman1968@aol.com 6 Law Offices of Dean Browning Webb 515 E 39th St. 7 Vancouver, WA 98663-2240 Telephone: 503-629-2176 8 Attorney for Plaintiffs California Coalition for Families and Children, PBC, and 9 Lexevia, PC 10 11 12 13 CALIFORNIA COALITION FOR 14 FAMILIES AND CHILDREN, et al., 15 16 v. Plaintiffs, Case No. 13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR SANCTIONS; F.R.C.P. 11(b) Date: January 24, 2014 Time: 2:00 p.m. Courtroom: 4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

17 SAN DIEGO COUNTY BAR ASSOCIATION, et al., 18 Defendants 19 20 21 22 23 24 25 26 27 28

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

CONTENTS I. INTRODUCTION ................................................................................................... 1 II. DISCUSSION .......................................................................................................... 4 A. Request for Judicial Notice .................................................................................. 6 B. Nesthus Declaration.............................................................................................. 9 C. Motion To Dismiss ............................................................................................... 9 1. The MTD Ignores Defendants Burden of Proof on Immunities............................9 2. Conflation of Rule 12 Grounds for Relief.....................................................................11 3. The MTDs Arguments Even Under Relevant Standards are Meritless, or Efficiently Resolved by Leave to Amend Requested in the M&C ....................... 13 4. Rooker-Feldman Cannot Bar Any Count ........................................................ 20 5. RICO Allegations ............................................................................................ 21 6. Defendants Assert Meritless Claims for Lack of Standing, and Refused Reasonable Informal Resolutions .......................................................................... 22 7. Defendants Misrepresent the Record and Law Relating to Corporate Plaintiffs Capacity, Standing, and Representation ................................................................ 23 Conclusion .......................................................................................................... 24

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TABLE OF AUTHORITIES 10 14, 15 9, 18 12

2 Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) 4 Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) 5 C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1170 (E.D.Cal.2010).

6 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011) 10 19 7 Conley v. Gibson, 355 U.S. 41 (1957) 8 Corr. USA v. Dawe, 504 F. Supp. 2d 924 (E.D. Cal. 2007). 9 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) 10 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir.1993). 11 Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir.1997) 12 Gomez v. Toledo, 446 U.S. 635 (1980) 13 Gray v. Evercore Restructuring L.L.C., 544 F3d 320 (1st Cir. 2008). 14 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987) 15 16 Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) 17 In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992) 18 Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir. 1980) 19 Jardin v. Datalegro, 2011 WL 137511 (S.D. Ca) 20 Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) 21 Jonas v. Lake Cnty. Leader, 2013 WL 3088795 (D. Mont. June 12, 2013) 22 Keil v. Coronado, 52 F. App'x 995, 996 (9th Cir. 2002) 23 Kennedy v. Full Tilt Poker, 2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010) 13 20 9 12 9 9

10 19 6 6, 9 12 17 13 12 11

17 24 Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir.1991) 25 Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 26 163 (1993)Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.2001) 6 19 12 27 Lombardo v. Huysentruyt, 91 Cal.App.4th 656 (2001) 28 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
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1 Moss v. U.S. Secret Serv., 675 F.3d 1213 (9th Cir. 2012) 2 N. Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010 WL 1499289, at *1 3 (S.D.Cal. Apr.12, 2010)

17

11, 12 23 13 16 6

4 Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994) 5 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) 6 OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012) 7 Rauch v. Day and Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978)

8 Rodriguez v. Unknown-Named disciplinary Hearings Agent, 2010 WL 1407772 (E.D. 9 Cal. Mar. 9, 2010) 6 9

10 Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) 11 SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 12 (9th Cir.1996)

13 13

13 SmileCare, supra; Corr. USA v. Dawe, 504 F. Supp. 2d 924 (E.D. Cal. 2007 14 17

15 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) cert. denied, 132 S. Ct. 2101, 182 L. Ed. 16 2d 882 (2012) 15 10 12, 19 13 11 13 19

17 Supreme Court of Va. v. Consumers Union, 446 U.S. 719 (1980) 18 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) 19 Thompson v. Paul 657 F.Supp.2d 1113 (D AZ 2009) 20 U.S. v. Lockheed-Martin Corp., 328 F.3d 374 (7th Cir. 2003) 21 United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963). 22 Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219 (E.D. Cal. 2009)

23 Weinstein & Distler, Comments on Procedural Reform: Drafting Pleading Rules, 57 24 25 26 27 28

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Colum. L.Rev. 518, 520521 (1957)

15

1 2

I.

INTRODUCTION

On August 20, 2013, Plaintiffs California Coalition for Families and Children,

3 a Delaware Public Benefit Corporation (CCFC), Lexevia, a California Professional 4 Corporation (LEXEVIA), and Colbern C. Stuart, an individual (STUART) filed 5 the instant Complaint (Dkt#1). The Complaint asserts 34 Counts seeking 6 compensatory damages under federal and related state law, and two Counts seeking 7 injunctive relief under federal law, against 51 named Defendants, and numerous 8 unknown defendants. The federal law Counts are asserted under the Civil Rights Act 9 of 1871, the Racketeering and Corrupt Organizations Act of 1970 (RICO), the 10 Lanham Act, the declaratory judgment statutes, and the Criminal and Penal Code. 11 The Complaint identifies the commission of 27 categories of related predicate 12 crimes under 18 U.S.C. 1961(5) and sets forth 34 federally-indictable civil rights 13 Counts (FICRO) under 18 U.S.C. 241, 242, and 371, which mirror the civil 14 rights civil Counts seeking compensatory relief. The Complaint totals 177 pages, and 15 references or incorporates four dozen exhibits. 16 On September 30, 2013, Defendants, the San Diego County Superior Court,

17 Robert J. Trentacosta, Michael M. Roddy, Lisa Schall, Lorna A. Alksne, Christine K. 18 Goldsmith, Jeannie Lowe, William H. McAdam, Jr., Edlene C. McKenzie, and Joel 19 R. Wohlfeil (collectively, "SUPERIOR COURT DEFENDANTS ") filed a Motion to 20 Dismiss Complaint (MTD) (Dkt.# 16) requesting the Court dismiss the entire 21 action with prejudice and without leave to amend. 22 On October 18, 2013 SUPERIOR COURT DEFENDANTS served a notice of

23 intent to seek Rule 11 sanctions against all Plaintiffs. SUPERIOR COURT 24 DEFENDANTS asserted that the Complaint (1) was presented for an improper 25 purpose, namely to harass defendants (2) contains claims which are not warranted 26 by existing law or by a nonfrivolous argument for extending, modifying, or reversing 27 existing law or for establishing new law; and (3) contains factual contentions with 28
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1 no evidentiary support in violation of Rule 11(b)(l)-(3). Defendants Rule 11 2 motion mirrors the arguments asserted in the MTD. 3 On October 28, 2013, Plaintiff Colbern Stuart (STUART) delivered a meet

4 and confer letter (M&C) under Local Rule 26.1 (a) and F.R.C.P. Rule 26(f) 5 identifying inadmissible pleadings and evidence filed with the MTD, including the 6 Request for Judicial Notice and exhibits thereto, the Declaration of Kristine P. 7 Nesthus, and detailing a number of inaccurate or irrelevant statements, arguments, 8 and authority advanced in the MTD. The M&C further offered informal resolution of 9 certain other arguments in the MTDsuggesting to avoid formal adjudication of 10 issues likely to resolve by the Court granting leave to amend. The M&C requested: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1.

Withdrawal of Pleadings: The RJN, Nesthus Declaration, and all exhibits thereto are controversial evidentiary matter inappropriate for admission by judicial notice or under a Motion to Dismiss under Rule 12(b)(6).

2.

Withdrawal of Arguments: The following arguments in the MTD are meritless: a. CCFC and LEXEVIA May Not Proceed Represented by Webb (MTD IV A); b. All Immunity Arguments (MTD IV C): Immunity is an affirmative defense not properly asserted as an attack on the present Complaint. As the Complaint admits no immunities, the immunity portions of the MTD are futile; c. d. e. Rooker-Feldman Bar (MTD IV H); Lanham Act Violation By Government (MTD IV I); and RICO Claims Lack pattern and ongoing organization averments (MTD IV J).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

3.

Stipulation to Amend: The following arguments in the MTD are easily curable and so insignificant I cannot imagine burdening the Court with their simple resolution either by waiver at this stage or stipulation to amend. Should you insist on pressing them, I suggest I will successfully obtain leave to amend to cure, and therefore request that you either (1) waive at this stage without prejudice to re-assert at any future time, or (2) stipulate to the Court granting leave to amend, obviating the necessity for the Courts devotion of time to easily resolved issues: a. b. c. LEXEVIA Capacity Cure (MTD IV A); Statute of Limitations Cures (MTD IV G, H); and Standing Cure (MTD IV K).

As to remaining issues, I am hopeful that your consideration of the authority on which you bring your motion and the additional authority and analysis herein will distill the truly justiciable issues. To the extent that reasonable compromise is possible, I have and am available to additional suggestions. I look forward to your reply toward further meet and confer discussions.

20 Exhibit A to Declaration of Colbern Stuart In Support of Motion to 21 Strike/Opposition to Motion to Dismiss (M&C). 22 SUPERIOR COURT DEFENDANTS refused to cooperate with the M&C

23 requests, necessitating an expansive and largely unnecessary pleading in opposition, 24 25 26 27 28

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1 including a lengthy Motion to Strike (Dkt#19) and overlength1 Opposition filed with 2 the Court on November 8, 2013 (Dkt#21). 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 Plaintiffs Ex Parte Request (Dkt#17) on November 5, 2013 (Dkt#18).
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1

II.

DISCUSSION

This Motion is brought pursuant to F.R.C.P. Rule 11 and Local Rule 83.1 against SUPERIOR COURT SUPERIOR COURT DEFENDANTS on the grounds that the MTD:

(1) is being presented for an improper purpose to continue a pattern of retaliation, HARASSMENT and ABUSE, and CHILLING described more fully in the Complaint and the August 26, 2013 Ex Parte Application and Motion for a Harassment Protective Order (Dkt #4);

(2) contains claims which are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and

(3) contains factual contentions including a Request for Judicial Notice with no evidentiary support in violation of Rule 11(b)(l)-(3).

The MTD is a not focused attack on specific legal issues, but instead a from the hip scattergun glancing every Count in the Complaint. The MTD asserts fifteen separate attacks under Rule 12(b)(6) and (1), requesting the Court to dismiss the

The Court graciously extended Plaintiffs and Defendants briefing limits upon

1 entire Complaint with prejudice and without leave to amend. This shoot first aim 2 later approach produces predicable resultsSUPERIOR COURT DEFENDANTS 3 assert the wrong Rule 12 subsection for the relief they seek, cite irrelevant authority 4 under other rules of civil procedure, seek to introduce controversial evidence in 5 support of a Rule 12(b)(6) motion, overreach in requesting unheard of relief 6 dismissal with prejudice of an initial Complaint,assert highly controversial 7 affirmative defenses of immunity, fail to cite to this Court at least four recent cases 8 within this Circuit which are fatal to their attack on the civil rights Counts, misstate or 9 inexcusably misunderstand the RICO legal standards relevant to the Complaint, 10 dramatically misrepresent the caption of the Complaint, and misrepresent Plaintiffs 11 averments relevant to standing and capacity matters. Whats more, when these errors 12 were called to SUPERIOR COURT DEFENDANTS attention in the M&C in a 13 detailed explanation of the Complaint requesting withdrawal of meritless arguments 14 and offering stipulation to amend to address other concerns, SUPERIOR COURT 15 DEFENDANTS refused, insisting on absorbing Court and party resources to litigate 16 meritless or easily-resolved issues. 17 Given the lack of merit to the MTD, Plaintiff submits that the MTD was filed

18 to continue the pattern of retaliation and HARRASSMENT and ABUSE, to cause 19 unnecessary delay, and needlessly increase the litigation costs to Plaintiffsa pattern 20 identified in the Complaint as HARRASSMENT and ABUSE and demonstrated to be 21 ongoing in the Ex Parte Application for Leave to File a Motion for Harassment 22 Restraining Order (Dkt#4). Plaintiffs are a parents and children rights and support 23 organization and their advocates who have fallen victim to defendantsan 24 insubordinated Domestic Dispute Industry preying on parents and children through 25 abuse of public resources by private criminal enterprises detailed in the Complaint. 26 The MTD is but the latest in what will be proven to be a grotesque and shameful 27 abuse of state law police power and color of law authority. 28
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The MTD is further unwarranted by existing law or by nonfirvious arguments

2 to extend, modify, or reverse existing law or for establishment of new law. As 3 detailed below, the arguments raised are not simply incorrecttheyre entirely off the 4 mark. Defendants assert the wrong rules of civil procedure, the wrong authority 5 thereunder, misrepresent authority they do cite, and submit highly controverted 6 evidence at the Rule 12(b)(6) stage. If first year civil procedure law students would 7 fail miserably in an attempt to pass off such error, state court judges should be 8 tolerated at no lower standard. 9 Defendants pattern of ongoing and outrageous defiance of the rule of law and

10 shameful abuse of the dignity and authority of their offices is evidenced as follows: 11 12 13 A. Request for Judicial Notice The Request for Judicial Notice (RJN) (1) seeks to introduce highly

14 controversial evidence not appropriately noticeable, (2) is not appropriate for 15 consideration at this stage, and (3) contains material which is irrelevant, scurrilous, 16 and inadmissible at any stage. 17 Facts subject to judicial notice are those which are either (1) generally known

18 within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 19 determination by resort to sources whose accuracy cannot reasonably be questioned. 20 Fed.R.Evid. 201(b). A court may not take judicial notice of a matter that is in dispute. 21 Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The party requesting 22 judicial notice bears the burden of persuading the court that the particular fact is not 23 reasonably subject to dispute and is capable of immediate and accurate determination 24 by resort to a source whose accuracy cannot reasonably be questioned. In re 25 Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992); Rodriguez v. 26 Unknown-Named disciplinary Hearings Agent, 209CV02195FCDKJNPS, 2010 WL 27 1407772 (E.D. Cal. Mar. 9, 2010); Rodriguez v. Unknown-Named Disciplinary 28 Hearings, 2010 WL 1407789 (E.D. Cal. Apr. 7, 2010).
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Exhibits A through I do not meet this test at thisthe Rule 12 stage.

2 Rauch v. Day and Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978) (Rule 12(b)(6) 3 permits the court to consider a motion to dismiss accompanied by affidavits as a 4 motion for summary judgment. If the motion is treated as one for summary judgment, 5 all parties shall be permitted to present all material pertinent to the motion.). Jablon 6 v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). 7 1. Exhibits A-Declaration of Emily Garson in Support of Arrest Warrant,

8 (Garson Declaration) and B-Ex Parte Minutes (SDSC Form CRM-177). A 9 sworn probable cause declaration by a witness in an unrelated state court criminal 10 investigation and a record of Ex Parte Minutes in what appears to be the same state 11 court matter are out of court statements apparently presently offered for the truth of 12 the matters therein assertedthat STUART was arrested pursuant to warrant 13 (MTD 1:25, 3:22, 4:3, 23:28). This allegation and the relevance, foundations, and 14 veracity of the documents themselves are not referenced in the Complaint. Should 15 Defendants attempt to introduce them, they will be vigorously controverted. 16 In addition, the Garson Declaration, also extrinsic to the four corners of the

17 Complaint, itself incorporates inadmissible multiple hearsay and extrinsic evidence 18 given on information and belief about the contents of an unidentified and 19 inadmissible file of an unidentified San Diego City Police Department officer. The 20 document is fraught with infirmities. As such the Garson Declaration and Superior 21 Court Minutes are multiples of inadmissible controversial hearsay and is inadmissible 22 at each level. 23 Both exhibits are further inadmissible by judicial notice as they are irrelevant

24 to any issue raised in the Complaint, are scurrilous, without foundation, and in fact 25 reflect apparent illegal activity on behalf of Ms. Garson. SUPERIOR COURT 26 DEFENDANTS apparently assert that the exhibits establish that a witness to a 27 criminal investigation, Ms. Emily Garson, executed and filed what STUART 28 contends is a perjurous declaration on or about April 5, 2010, and that the San Diego
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1 Superior Court criminal division filed form Ex Parte Minutes referencing an arrest 2 warrant and bail set for an unidentified individual (presumably SUPERIOR COURT 3 DEFENDANTS will at some point attempt to introduce this evidence asserting that 4 the individual is STUART) in a state superior court criminal matter extrinsic to the 5 Complaint. The Superior Court Minutes do not identify the subject of the 6 declaration, establish that any warrant actually issued or to whom the warrant was 7 issued, or reflect any other facts relating to the affirmative defense of qualified 8 immunity SUPERIOR COURT DEFENDANTS apparently assert it is related to, and 9 provide no facts or foundation to support admission. 10 Further, SUPERIOR COURT DEFENDANTS representations that Contrary

11 to his allegations, at the time of the seminar, there was an outstanding warrant for 12 Stuarts arrest in connection with a criminal action (MTD 3:22), and that Stuart was 13 arrested pursuant to the outstanding warrant (MTD 4:3) are false, and to the extent 14 SUPERIOR COURT DEFENDANTS clients intend to assert such an extrinsic 15 claim, they are not judicially-noticeable, highly controversial, and inadmissible under 16 any circumstances for purposes of a Rule 12 motion. 17 2. Exhibit C H Internet Printouts Of State Bar Status in Three States:

18 These exhibits suffer the same defectsthey are inadmissible hearsay references to 19 state bar proceedingsonline status printouts offered for the truth of the matters 20 asserted therein. They are hearsay, foundationless, an extrinsic to any assertion in the 21 Complaint. Because they are based upon the same illegal conduct of the declaration 22 that is Exhibit A to the MTD, the facts are controverted, and if injected into this 23 action by proper procedure, will be vigorously contested. To the extent that the 24 exhibits reflect STUARTS status with the State Bar of California, Arizona, and 25 Nevada, they are also non-probative of any issue at issue in the Complaint as 26 STUART does not appear as counsel for any party. 27 3. Exhibit I An Internet Printout from the California Secretary of State of

28 LEXEVIAs Tax Status: LEXEVIAs tax status is not an issue fatal to the Complaint
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1 as it may and is being cured by procedures extrinsic to a Rule 12 proceeding. See 2 M&C sec. I 2. 3 4 B. Nesthus Declaration For many of the same reasons the Nesthus Declaration is inappropriately filed.

5 The Declaration is testimony of irrelevant events relating to Ms. Nesthus activities 6 pursuant to becoming aware of the Complaint. None of Ms. Nethus activities 7 calling around to parties and counsel requesting withdrawal of the Complaint, 8 demands to remove addresses from the Complaint, the hearsay allegations 9 regarding Ms. Nesthus conversations with Mr. Webb about his representation of 10 plaintiffsare relevant to the MTD or Complaint. 11 The entire declaration is further inadmissible hearsay, without foundation, and

12 not properly admissible matter to support a Rule 12 motion. To the extent 13 SUPERIOR COURT DEFENDANTS intend to assert the facts in the Declaration in a 14 proper manner, they are and will be contested. 15 STUART has requested that the RJN, exhibits thereto, and the Nesthus

16 Declaration, be withdrawn. Defendants have failed to do so. 17 STUART has separately moved to strike this evidence under F.R.C.P. 12(f)

18 providing that a court may order stricken from any pleading ... any redundant, 19 immaterial, impertinent or scandalous matter. Fed.R.Civ.P. 12(f). [I]mmaterial 20 matter is that which has no essential or important relationship to the claim for relief 21 or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 22 Cir.1993). Those arguments are incorporated herein by reference. 23 24 25 26 C. Motion To Dismiss 1. The MTD Ignores Defendants Burden of Proof on Immunities MTD sections C, D, and E raise the substantive affirmative defenses of

27 absolute immunities. Immunity, both absolute and qualified, is an affirmative 28 defense for which Defendants bear the burden of proof. Butler v. Elle, 281 F.3d
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1 1014, 1021 (9th Cir. 2002); Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 2 1924, 64 L. Ed. 2d 572 (1980); Fed.Rule Civ.Proc. 8(c) (defendant must plead any 3 matter constituting an avoidance or affirmative defense). Affirmative defenses 4 generally may not be raised in a Rule 12(b)(6) motion unless based on some non5 controversial preclusive legal defense. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th 6 Cir. 1984). A defendant may bring a Rule 12(b)(6) motion based upon an affirmative 7 defense in unusual circumstances: where the face of the Complaint admits a 8 defense. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)). A Rule 9 12(b)(6) motion asserting that the complaint admits a defense must prove the 10 defense is (i) definitively ascertainable from the complaint and other allowable 11 sources of information, and (ii) suffice to establish the affirmative defense with 12 certitude. Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008). 13 14 a. The Complaint admits no affirmative defenses The Complaint admits no immunity and no facts disclosed in the Complaint

15 establish any affirmative defense with certitude. Compl. 147, 159. The issues 16 relevant to determining immunity are dependent on facts which are not, and will not 17 be pled. Should Defendants attempt to do so, the elements of their burden of proof 18 and pleading is significant. 19 i. 11th Amendment Immunity: Eleventh Amendment immunity applies only to

20 States (i.e., the State of California). The Complaint does not name the State of 21 California, and no defendant is a state agency or department. Non-state defendants 22 may assert 11th Amendment immunity only if they can prove facts establishing that 23 they are arms of the state. See, e.g., Greater Los Angeles Council on Deafness, Inc. 24 v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). Such a proving is not possible in this 25 case, and is entirely inappropriate pleading via a Rule 12(b)(6) motion. 26 ii. Absolute Immunity: Functions qualifying for absolute immunity require a

27 factual showing. Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). Judicial 28 immunity is available for government actors acting within the scope of their authority
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1 performing a judicial function. Id. This analysis requires the party asserting to 2 establish that the accused act was a judicial act requiring exercise of discretion in 3 the independent decision-making adjudication of controversies. Ashelman at 1076 4 (9th Cir. 1986); Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980) 5 (judicial functions arise out of the adjudication of controversies). 6 The analysis necessary to resolve these immunities is significant and based on

7 questions of fact, the burden of proving which rests with the movant. As the 8 Complaint admits no immunity, a Rule 12(b)(6) motion cannot be in good faith. 9 10 11 2. Conflation of Rule 12 Grounds for Relief The MTD is brought under only Rules 12(b)(6) and Rule 12(b)(1), yet the

12 authority cited are relevant to different rules and procedural context. The MTD cites 13 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1052 (9th Cir. 14 2011), a motion to amend a third amended complaint while plaintiff faced a Rule 15 12(c) motion for judgment on the pleadings. The District Court granted defendants 16 Rule 12(c) motion for judgment on the pleadings and denied Plaintiff leave to file a 17 third amended complaint attempting to resurrect an abandoned claim. Id. at 1052. 18 After amending her complaint once and a two year period of acrimonious discovery 19 defendants sought discovery on what the plaintiffs alleged her false claim was. In 20 response, plaintiff mistakenly denied the need to prove a false claim. Defendants 21 moved to dismiss under Rule 12(c), the District Court refused plaintiff leave to 22 correct her error, and the Court of Appeals affirmed. 23 The MTD cites U.S. v. Lockheed-Martin Corp., 328 F.3d 374 (7th Cir. 2003), a

24 denial of a Rule 15 motion to amend a second amended complaint. The case also 25 involved False Claims Act complaint required to be pled under a Rule 9(b) standard. 26 The District Court denied leave to amend a third amended complaint after the court 27 had directed, but plaintiff failed, three times to allege facts establishing a prima facia 28 case of fraud under Rule 9. Plaintiff requested leave to amend again, proffering
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1 confusing 700 page third amended complaint which still did not a single fraud claim. 2 Id. The Court of Appeals affirmed denial of leave to amend. Id. 3 The string cites from the Lockheed-Martin case were brought variously under

4 Rule 12(e) motions for a more definite statement. The MTDs analysis in the bucket 5 of mud attack consists of general aspersions to the Complaint without specific 6 identification of any absent elements or facts. Such an attack is not appropriate 7 grounds for a Rule 12(b)(6) motion. 8 The MTDs conflation of Rules 12(c), (e), and (f) with a Rule 12(b) motion is

9 not faithful litigation conduct. The MTD seeks dismissal with prejudice based on 10 an analysis that cannot achieve such reliefparticularly when brought against an 11 original complaint. MTD 11:8. A court may rarely dismiss any complaint on Rule 12 12(e) grounds, as leave to amend for a more definite statement is virtually 13 mandatory. The class of pleadings that are appropriate subjects for a motion under 14 Rule 12(e) is quite small. Kennedy v. Full Tilt Poker, 2010 WL 1710006, at *23 15 (C.D.Cal. Apr.26, 2010). A motion for more definite statement is used to provide a 16 remedy for an unintelligible pleading rather than a correction for lack of detail. N. 17 Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010 WL 1499289, at *1 18 (S.D.Cal. Apr.12, 2010). A motion for a more definite statement may be denied 19 where the detail sought is obtainable through discovery. C.B. v. Sonora Sch. Dist., 20 691 F.Supp.2d 1170, 119091 (E.D.Cal.2010). Rule 12(e) provides a remedy for 21 unintelligible pleadings; it does not provide correction for lack of detail or a 22 substitute for discovery. N. Cnty. Commc'ns, 2010 WL 1499289, at *1. See also 23 Jardin v. Datalegro, 2011 WL 137511 at *2 (S.D. Ca). Id. 24 Moreover, motions to dismiss on a bucket of mud attack have been

25 specifically rejected by the Court of Appeals. Whether [plaintiff] states a claim for 26 purposes of Rule 12(b)(6) should not have been analyzed under the framework of 27 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which sets forth an 28 evidentiary standard relevant at the summary judgment stage. Rather, consistent with
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1 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and Gilligan v. Jamco Dev. Corp., 2 108 F.3d 246, 249 (9th Cir.1997), at the pleading stage the inquiry is simply whether 3 the facts pled show that the plaintiff is entitled to relief. Fed.R.Civ.P. 8(a)(2). As the 4 district court applied McDonnell Douglas, we must reverse. . . . Even if Defendants 5 claim that the Complaint is not a model of clarity was true, that would not be 6 grounds for dismissal under Rule 12(b)(6). Keil v. Coronado, 52 F. App'x 995, 996 7 (9th Cir. 2002). 8 As the authority Defendants cite conducts analysis under standards different

9 from the analysis relevant to a Rule 12(b)(6) motion on Rule 8 grounds, the MTD 10 applies incorrect pleading standards, conflating the resulting analysis. For that 11 ground alone the entire MTD is wildly off-mark. 12 13 14 15 3. The MTDs Arguments Even Under Relevant Standards are Meritless, or Efficiently Resolved by Leave to Amend Requested in the M&C Under this Circuits authority, a defendant may obtain dismissal of a Complaint

16 for either: (1) lack of a cognizable legal theory or (2) insufficient facts under a 17 cognizable legal claim. SmileCare Dental Group v. Delta Dental Plan of 18 California, Inc., 88 F.3d 780, 783 (9th Cir.1996); Navarro v. Block, 250 F.3d 729, 19 732 (9th Cir. 2001); Jonas v. Lake Cnty. Leader, CV 13-30-M-DLC-JCL, 2013 WL 20 3088795 (D. Mont. June 12, 2013). 21 22 a. Cognizable Legal Theory The first ground for dismissal under Rule 12(b)(6) is an assertion that the

23 complaint does not state a cognizable legal theory. SmileCare, supra; Corr. USA v. 24 Dawe, 504 F. Supp. 2d 924 (E.D. Cal. 2007). To state lack of a cognizable legal 25 theory a defendant must establish that, assuming all allegations in the complaint to 26 be true, the complaint as a whole does not articulate a legally theory recognized 27 within the jurisdiction. Corr. USA v. Dawe at 934.; United States v. Howell, 318 F.2d 28
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1 162, 166 (9th Cir.1963). It is not directed to claims or claim elements Id.; 2 Thompson v. Paul, 657 F.Supp.2d 1113, 1129 (D AZ 2009) . 3 Dismissals for failure to state a cognizable theory are rare. They arise, for

4 example, where a civil plaintiff accurately pleads facts satisfying a statute, but the 5 statute only permits a state attorney general to seek civil recovery. Corr. USA v. 6 Dawe, 504 F. Supp. 2d 924, 934 (E.D. Cal. 2007). Even in such cases, however, 7 where the plaintiffs claims may sound under othereven unpledcauses of actions 8 recognized in the jurisdiction, the complaint states a cognizable theory. Id. 9 (Plaintiffs do not dispute that California Corporations Code 8816 does not provide 10 for a private right of action. That said, a claim should only be dismissed if there is no 11 cognizable legal theory upon which relief could be granted. Here, plaintiffs have set 12 forth sufficient facts which could establish a cause of action for invasion of privacy, 13 trademark infringement, or breach of the implied covenant of good faith and fair 14 dealing, among other conceivable tort and/or contacts claims.). 15 The MTD recites a lack of cognizable legal theory as the foundation of

16 several sections, yet this assertion is so off-mark that it cannot be taken as faithful 17 litigation conduct. The Complaint cites 34 cognizable claims on at least as many 18 statutory and constitutional grounds, broken down by elements, and alleges facts 19 tracking the elements of each theory. The BACKGROUND and COMMON 20 ALLEGATIONS sections plead abundant factual context elaborating on the facts 21 and theories, which are incorporated into each claim by reference. Compl. 141. If 22 anything, the Complaint pleads an abundance of cognizable legal theories; here 23 Defendants have declared the Complaint exhausting. MTD 18:22. 24 SUPERIOR COURT DEFENDANTS inability to recognize cognizable claims

25 likely results from an artificially restrictive reading of the Complaintisolating 26 certain conclusory words or passages, and thereupon asserting that an otherwise 27 cognizable claim is not cognizable. For example, the MTD asserts that the Complaint 28 fails to allege a cognizable claim or lacks a cognizable claim (a Rule 12(b)(6)
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1 first ground, attack), then proceeds to attacks the Complaint in hunt and peck 2 fashion (a Rule 12(f) tactic), identifying numerous specific terms as conclusory. 3 Yet in artificially isolating conclusory terms, the MTD ignores other related 4 passages in the Complaint which provide the additional facts establishing the 5 plausibility of the cognizable claims in which the conclusory terms appear. Such 6 an artificially cabined reading and hunt and peck attack is impermissible. When 7 called out in the M&C, SUPERIOR COURT DEFENDANTS yet refused even to 8 consider withdrawal of such arguments. 9 10 b. Insufficient Facts Under a Cognizable Legal Claim In asserting the second, insufficient facts under a cognizable claim ground

11 for relief under Rule 12(b)(6), the MTD relies on inapposite authority to assert a 12 failure of sufficient facts under a cognizable claim: Bell Atl. Corp. v. Twombly, 550 13 U.S. 544, 548-49, 127 S. Ct. 1955, 1961, 167 L. Ed. 2d 929 (2007). In Twombly, the 14 Court imposed a heightened pleading standard on antitrust pleading under Rule 8, 15 requiring the antitrust class action plaintiffs to plead enough factual context to 16 make the allegation of an agreement plausible. Id. at 548. The question in this 17 putative class action is whether a 1 complaint can survive a motion to dismiss when 18 it alleges that major telecommunications providers engaged in certain parallel 19 conduct unfavorable to competition, absent some factual context suggesting 20 agreement, as distinct from identical, independent action. Id. (emphasis added). 21 In Twombly the absence of factual context was established by evaluating

22 the facts pled by plaintiff pointing to an agreement in restraint of trade. Because 23 the facts identified, when evaluated in the context of antitrust law, did not establish 24 that the behavior of SUPERIOR COURT DEFENDANTS was anything other than 25 permissible conscious parallel conduct, the court affirmed dismissal of the 26 complaint. Id. 27 Yet Defendants MTD does not conduct the analysis required under

28 Rule12(b)(6) sufficient facts groundit simply identifies the existence of what it

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1 alleges are conclusory terms at locations in the Compliant. Yet the relevant inquiry 2 is not whether a given claim contains conclusions, but whether a claim consists of 3 nothing more than bare conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 574 4 (2007); see also Starr v. Baca, 652 F.3d 1202, 1221 (9th Cir. 2011) cert. denied, 132 5 S. Ct. 2101 (2012). The existence of conclusions in virtually any pleading is 6 inevitable, frequent, and in most cases useful context. [I]t is virtually impossible 7 logically to distinguish among ultimate facts, evidence, and conclusions. 8 Essentially any allegation in a pleading must be an assertion that certain occurrences 9 took place. The pleading spectrum, passing from evidence through ultimate facts to 10 conclusions, is largely a continuum varying only in the degree of particularity with 11 which the occurrences are described. Id.; Weinstein & Distler, Comments on 12 Procedural Reform: Drafting Pleading Rules, 57 Colum. L.Rev. 518, 520521 13 (1957). As the MTD conducts an irrelevant hunt and peck analysis, it is not 14 faithful litigation conduct. 15 16 i. Twombly is inapposite to the present civil rights matter

Moreover, the MTDs heavy reliance on Twomblys nothing more than

17 analysis is of marginal relevance in the civil rights context, as four recent cases from 18 the Court of Appeals have held. Twombly is an antitrust case. The instant case is not. 19 In the antitrust context, industry defendants are able to submit a history of antitrust 20 caselaw and findings showing that mere parallel conduct is not a reliable indicator of 21 an agreement. That studied understanding of the history of antitrust cases 22 allowed the Court to conclude that a case relying only on parallel conduct could not 23 survive summary judgment, and therefore proceeding to expensive discovery would 24 inevitably be fruitless for plaintiffs, and unnecessarily expensive for defendnats. 25 This history of caselaw showing a likelihood of innocent collusion is

26 unavailable in the civil rights and RICO contexts, in which parallel conduct 27 between government and private putative adversaries is, if anything, prima facia 28 evidence of culpable conspiracy.
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1 2

ii.

This Circuits Treatment of Twombly/Iqbal in Civil Rights Cases

While relying on Twomblys antitrust pleading standard might be forgivable

3 optimistic overreaching, Defendants failure to cite to this Court far more relevant 4 authority in this Circuit directly opposite to their pleading is not. In civil rights 5 matters this Circuits Court of Appeals has refused to apply Twombly an Iqbal to 6 impose any new Rule 8 pleading requirements beyond those traditionally recognized. 7 In OSU Student Alliance v. Ray, 699 F.3d 1053, 1058 (9th Cir. 2012) the Court of 8 Appeals, considering Twombly, found that a plaintiffs 42 U.S.C. 1983 complaint 9 alleging that Oregon State Universitys acts in rounding up and disposing of a 10 student newspapers on-campus distribution newsbins adequately pled first 11 amendment deprivation counts against university administrative officials not directly 12 causing the roundup. The complaint alleged only that: (1) named university 13 officials were aware of the accused university practice and policy, (2) the practice and 14 policy were within the supervisory officials power and duty to create, implement, 15 control, and (3) the injury sustained (destruction of student newspapers in the targeted 16 bins) was consistent with the policys allegedly unconstitutional application. 17 In Moss v. U.S. Secret Serv., 675 F.3d 1213, 1225 (9th Cir. 2012) amended,

18 711 F.3d 941 (9th Cir. 2013) the Court of Appeals reversed a District Courts grant of 19 a Rule 12 motion to dismiss a section 1983 complaint brought by protesters of 20 President Bush alleging First Amendment viewpoint discrimination. In the complaint 21 the protesters alleged merely that at the direction of the Secret Service agents, they 22 were moved to a location where they had less opportunity than the pro-Bush 23 demonstrators to communicate their message to the President and those around him, 24 both while the President was dining at the Inn and while he was en route to the 25 Honeymoon Cottage. The Court of Appeals held: These allegations support a 26 plausible claim of viewpoint discrimination. Id. 27 In Starr v. Baca, 652 F.3d 1202, 1215-16 (9th Cir. 2011) cert. denied, 132 S.

28 Ct. 2101 (2012), an inmate sued Los Angeles County Sheriff Baca and numerous
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1 jailhouse deputies, their supervisors, and Sheriff Baca himself under 42 U.S.C. 2 1983 for failure to prevent a group of inmates from stabbing the plaintiff 23 times. 3 After three amendments, the complaint continued to plead no specific facts beyond 4 the fact that Sheriff Baca had supervisory deputies for the safety of the jail, and 5 general knowledge of several prior unrelated attacks. The District The Court of 6 Appeals reversed the District Courts grant of a Rule 12(b)(6) motion to dismiss, 7 stating [w]e have long permitted plaintiffs to hold supervisors individually liable in 8 1983 suits when culpable action, or inaction, is directly attributed to them. We have 9 never required a plaintiff to allege that a supervisor was physically present when the 10 injury occurred. Id., (citing Larez v. City of Los Angeles, 946 F.2d 630 (9th 11 Cir.1991)). 12 The MTD nowhere cites this near-controlling post-Twombly/Iqbal authority

13 affirming decades of this Circuits civil rights law pertaining to facts and theories 14 consistent with those pled in the instant Complaint. Such gross failure could 15 rightfully be characterized as unfaithful litigation conduct. 16 17 iii. The Complaint Alleges Sufficient Facts Under a Cognizable Legal Claim: The MTD asserts that the Complaint lacks even a single cognizable

18 Constitutional legal theory under 42 U.S.C. 1983, 1985, or 1986. MTD 13-16. 19 This proposition is staggering in its inaccuracy. 20 a) 21 Constitutional Rights Violated (MTD 13:13-15) The MTD admits that Counts 1-6, 9-15, 17-19 identify specific constitutional

22 amendments and the facts relating to each violation, yet claims this does not 23 sufficiently identify the constitutional rights violated. It would seem odd to conclude 24 that a Complaint asserting violation of a statute which identifies the statute, cites the 25 relevant provisions allegedly violated, and avers abundant facts alleged to constitute 26 the violation would fail to give notice to a defendant of the claim sufficient to permit 27 a defense. Yet that is the claim of SUPERIOR COURT DEFENDANTS. Moreover, 28 such an attack does not sound as an attack that the constitutional claims are absent
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1 some factual contextbut instead as a motion for a more definite statement, which 2 SUPERIOR COURT DEFENDANTS have not brought. Further, SUPERIOR 3 COURT DEFENDANTS assertion that a Complaint must detail specifics of the 4 constitutional rights violated has been rejected by Leatherman v. Tarrant Cnty. 5 Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). 6 b) 7 8 facts establishing that any conduct by the Superior Court Defendants caused the purported Constitutional violations. (MTD 13:16-18) SUPERIOR COURT DEFENDANTS have inexcusably misunderstood (i) the

9 relevant legal theories under which SUPERIOR COURT DEFENDANTS may be 10 liable and (ii) the facts alleged in the Complaint thereunder. 11 12 i. Causation

The MTD references cause as a missing element, though SUPERIOR

13 COURT DEFENDANTS appear not to be concerned with cause, but instead the acts 14 forming the foundation of the injury. MTD 12:16-18. Causation in civil rights cases 15 is properly averred generally. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 16 Outside of the securities litigation context in which loss causation is often 17 attenuated by a complex string of market events, but for tort causation is a de 18 reguiere fact issue for a jury, and as such need not be pled with particularity. Id. 19 Averments as to cause are not subject to heightened pleading standards imposed by 20 Rule 9(b) or under Twombly/Iqbal, and thus are satisfactory as judged under 21 traditional pleading standards of Rule 8(a) under Conley v. Gibson, 355 U.S. 41 22 (1957) and Swierkiewicz, supra. As such, the claims as stated provide SUPERIOR 23 COURT DEFENDANTS adequate notice to plead and defend. 24 25 ii. Acts

Even given a generous revision of the MTD as directed at acts, it evinces a

26 reckless blindness to the abundant details of culpable acts alleged in the Complaint. 27 See M&C pp.39-63. Direct acts, indirect acts, acts setting in motion, 28 conspiratorial acts, aiding and abetting acts, acts of enterprise affiliation, and failures
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1 to act in breach of duties and responsibilities requiring action have been well-known 2 to the bench and bar for decades as acts which may form the foundation for liability 3 for constitutional injury resulting therefrom. Johnson v. Duffy, 588 F.2d 740, 743-44 4 (9th Cir. 1978); Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 1240 5 (E.D. Cal. 2009); OSU, Starr, supra. California law expressly imposes liability on a 6 public employee for his own act or omission. (Cal.Gov't.Code 820 (a public 7 employee is liable for injury caused by his act or omission to the same extent as a 8 private person, except as otherwise provided by statute . . . . Further, an omission 9 to act, in violation of the duties imposed upon him by statute and by regulations, thus 10 may subject him to liability under section 1983. Hesselgesser v. Reilly, 440 F.2d 11 901 (9th Cir. 1971). 12 The Complaint, M&C pp. 33-64, and related sections of the Opposition detail

13 abundant facts of SUPERIOR COURT DEFENDANTS culpable acts. SUPERIOR 14 COURT DEFENDANTS willful blindness to the well-established cognizable legal 15 theories and related facts thereunder pled in the Complaint cannot be asserted in good 16 faith abidance to relevant standards of pleading. 17 18 19 4. Rooker-Feldman Cannot Bar Any Count (MTD Sec. H) SUPERIOR COURT DEFENDANTS assert a sweeping attack under the

20 Rooker-Feldman doctrine, despite a long line of recent authority from the U.S. 21 Supreme Court and this and other Circuits which have eviscerated the doctrine. 22 The RookerFeldman doctrine, we hold today, is confined to cases of the kind from 23 which the doctrine acquired its name: cases brought by state-court losers complaining 24 of injuries caused by state-court judgments rendered before the district court 25 proceedings commenced and inviting district court review and rejection of those 26 judgments. RookerFeldman does not otherwise override or supplant preclusion 27 doctrine or augment the circumscribed doctrines that allow federal courts to stay or 28 dismiss proceedings in deference to state-court actions. Exxon Mobil Corp. v. Saudi
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1 Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 1521-22, 161 L. Ed. 2d 454 2 (2005). Granting a motion to dismiss based upon Rooker Feldman is exceedingly 3 rare. Since Feldman, this Court has never applied RookerFeldman to dismiss an 4 action for want of jurisdiction. The few decisions that have mentioned Rooker and 5 Feldman have done so only in passing or to explain why those cases did not dictate 6 dismissal. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 287, 125 S. 7 Ct. 1517, 1523, 161 L. Ed. 2d 454 (2005) (collecting cases refusing dismissal). 8 In an odd tactic to resurrect this defense, the MTD artificially cabins the

9 numerous averments against WOHLFEIL and SCHALL in Counts 17-19, then 10 proceeds to mischaracterize those few it acknowledges as nothing more than 11 judicial acts subject to a Rooker-Feldman bar. Yet as detailed in the Opposition and 12 M&C pp. 69-75, the allegations regarding WOHLFEIL and SCHALL are far more 13 extensive than the MTD misrepresents. 14 Moreover, even under whatever authority remains of the Rooker-Feldman

15 doctrine, it would not bar the acts alleged in the Complaint. The Complaint avers 16 grounds for liability against SUPERIOR COURT DEFENDANTS which neither (1) 17 arises out of an allegedly erroneous decision by a state court nor (2) seeks relief 18 from a state court judgment based on that decision. WOHLFEILS referral to and 19 endorsement of a private forensic psychologist DOYNE INC. was not an appealable 20 decision. Nowhere does the Complaint seek relief from the state court dissolution 21 proceeding, which involved only issues of child custody and spousal support. 22 As the Rooker-Feldman defense is near legal bankruptcy and plainly

23 inapplicable on these facts, these sections of the MTD are meritless, and their 24 assertion in the MTD and refusal to withdraw during meet and confer is unfaithful 25 litigation conduct. 26 27 28 5. RICO Allegations (MTD Section J) a. The Complaints RICO Allegations are Complex, Yet Fully Cognizable
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SUPERIOR COURT DEFENDANTS attack on the RICO allegations reads as

2 an uninformed shotgun approach containing wildly off-mark attacks which 3 Defendants appear simply not to understand. While RICO is complex, SUPERIOR 4 COURT DEFENDANTS and counsel have a duty to research the relevant legal issues 5 and raise only those supported by good faith belief in their merit. F.R.C.P. Rule 6 11(b)(3). As the defenses raised in this section of Defendants MTD are not 7 waivable, counsel could have taken necessary time to study the relevant law before 8 raising them at a later stage. They did not, instead jumping the gun with a 9 blunderbuss Rule 12(b)(6) attack. 10 M&C section G sets forth the defects in SUPERIOR COURT

11 DEFENDANTS understanding of RICO and lays out an accurate analysis in near12 excruciating detaildetail perhaps sufficient to constitute a partial discovery 13 response. SUPERIOR COURT DEFENDANTS have defaulted on the M&Cs 14 request to withdraw these arguments, necessitating unnecessary pleading in 15 Opposition. Such pleading and behavior fails to abide by Rule 11s standards. 16 17 18 19 6. Defendants Assert Meritless Claims for Lack of Standing, and Refused Reasonable Informal Resolutions SUPERIOR COURT DEFENDANTS arguments regarding Article III

20 standing are similarly misguided. The MTD grossly mischaracterizes the Complaint 21 averments relevant to standing. At paragraph 21:12-13 the MTD alleges The 22 Complaint generally asks the Court to enjoin Defendants from further alleged 23 violations of Stuart's rights. At 22:2-5: Absent from the Complaint are any 24 allegations that Stuart is likely to be wronged in the future by any of the Superior 25 Court Defendant. Stuart's claim for prospective relief is simply in response to alleged 26 past wrongs committed by the Superior Court SUPERIOR COURT 27 DEFENDANTS. The MTD claims that the Complaint averments are simply in 28 response to alleged past wrongs committed by the Superior Court SUPERIOR
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1 COURT DEFENDANTS and a mere desire to effectuate what he believes to be the 2 proper application of the law (MTD 21). 3 This is a gross mischaracterization of the Complaint, which explicitly details

4 the past, current, and ongoing injury and future threat to plaintiffs existing exercise, 5 support, advocacy, (FFRRESA), BUSINESS DEVELOPMENT, and PUBLIC 6 BENEFIT ACTIVITIES and alleges ongoing continuing HARRASSMENT and 7 ABUSE as detailed in the Ex Parte Application for Temporary Harassment 8 Restraining Order, MTD Opposition, and M&C sec. H. These gross 9 misrepresentations to the Court, and have ignited unnecessary controversy, 10 necessitating wasteful effort to respond to a meritless attack. 11 12 13 14 15 7. Defendants Misrepresent the Record and Law Relating to Corporate Plaintiffs Capacity, Standing, and Representation a. Corporate Plaintiffs Representation SUPERIOR COURT DEFENDANTS MTD asserts that [n]either Stuart nor

16 Mr. Webb are counsel for CCFC (MTD 7), and Lexevia has appeared in this action 17 without counsel (MTD 9). This is plainly incorrect. The caption page of the 18 Complaint clearly identifies Mr. Webb as Attorney for Plaintiffs California 19 Coalition for Families and Children, Inc. and Lexevia, PC. (Compl. p. 1). STUART 20 nowhere claims to be counsel for any party and has consistently appeared only pro se 21 in each pleading. See Verified Complaint, Verification (Compl. 171, 272); Ex 22 Parte Application for Temporary Harassment Protective Order (Dkt #4); Ex Parte 23 Application for Leave To Utilize Electronic Filing System (Dkt #6). All pleadings 24 plainly identify that CCFC and LEXEVIA are represented only by counsel. Mr. 25 Webbs notation that he is in process of obtaining pro hac vice admission is accurate 26 yet irrelevant to the MTDs assertion. See M&C sec. I. 27 28
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1 2

b. LEXEVIAS Capacity and Standing to Sue LEXEVIA has averred facts and possesses standing to sue both as a

3 corporation and unincorporated association. See, e.g., Nat'l Org. for Women, Inc. v. 4 Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127 L. Ed. 2d 99 (1994). The 5 MTD acknowledges LEXEVIAs present ability to revive its capacity to sue, but 6 asserts that dismissal is appropriate because LEXEVIA lacked standing under Article 7 III at the time that the law suit was filed. MTD 8. As detailed in the Opposition, this 8 assertion is incorrecta confusion of the concepts of capacity and standing. The 9 lack of capacity has no impact on the issues of standingthe critical question on 10 standing relates to the existence of injurynot permission to sueat the time of 11 filing of the Complaint. See M&C sec. I. 12 As LEXEVIA has pled injury in existence at the time the Complaint was filed,

13 the MTDs assertion that it lacks standing based on that injury is clear and 14 inexcusable error. Given that the M&C alerted SUPERIOR COURT DEFENDANTS 15 to this confusion and presented opportunity to withdraw the argument, the assertion 16 can only be construed as a violation of Rule 11. 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION SUPERIOR COURT DEFENDANTS have asserted the wrong Rule 12 grounds for their MTD, cited irrelevant authority, misrepresented the authority they did cite, overreached in requesting dismissal of the Complaint with prejudice, failed to cite to this Court at least four recent cases within this Circuit directly on point which denied the relief SUPERIOR COURT DEFENDANTS request in this Court, misstated or inexcusably misunderstood relevant law, and dramatically misrepresented easily-verifiable representation, standing, and capacity matters. They have refused Plaintiffs request to withdraw the errant pleadings and exhibits, and refused stipulations to resolve pleading matters which are properly and regularly resolved by leave to amend by stipulating thereto, necessitating unnecessary,

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1 burdensome, and harassing motion practice before this Court. A clearer case for 2 failure to reasonably investigate claims and bad faith litigation conduct would be 3 difficult to make. 4 5 6 DATED: November 26, 2013 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC, Lexevia, PC in Pro Se

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

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this 26th day of November, 2013. By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children, Lexevia, PC in Pro Se

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