Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 1 of 20

CHARLES R. GREBING, State Bar No. 47927

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CHRISTOPHER W. TODD, ESQ./BAR NO. 127087 ctodd@wingertlaw.com ANDREW A. SERVAIS, State Bar No. 239891
as erv ai s @w in ger tl aw. c o m

DWAYNE H. STEIN, State Bar No. 261841

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WINGERT GREBING BRUBAKER & JUSKIE LLP 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

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF' CALIFORNIA

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CALIFORNIA COALITION FOR FAMILIES AND CHILDREN. a Delaware t6 Corporation, LEXEVIA, PC, a' California Professional Corooration. and COLBERT t7 C. STUART, an individul,
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Case No. :

I 3-

Iv-01944-CAB-BLM

Plaintiffs,
VS.

MEMORANDUM OF' PONTS AND AUTHORITIES IN SUPPORT OF DEFENDAT\T NATIOI{AL F'AMILY JUSTICE CENTER ALLIANCE'S MOTION TO DISMISS PLAINTIF'F'S' COMPLAINT [Fed. R. Civ. P. 12(bX1),
12(bX6) and Fed. R. Civ. P. 9(b)l

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SAN DIEGO COUNTY BAR ASSOCIATION, a California Corporation; SAN DIEGO COUNTY SHERIFF'S

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Date: Time: Ctrm:

2:00 o'm. Courfroom 4C Judge: Cathy Ann Bencivengo, Presiding

January 24,2014

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MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM

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corporation,
Defendants.

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MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM

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TABLE OF'CONTENTS
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I. II. M.

INTRODUCTION ALLEGATIONS AGAINST ALLIANCE IN COMPLAINT

THERE IS NO JURISDICTION FOR THE COMPLAINT

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A.
B.

Jurisdiction

Standard for 1 2(bX1) Motion to Dismiss for Lack of Subject Matter

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Corporate Entity Plaintiffs Lack Standing to File This Lawsuit.........

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1. 2. C. IV.
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Represented by Counsel

California Coalition for Families and Children is not

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Lexevia is a Suspended Corporation

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Jurisdiction could Never be Sustained because Complaint Violates

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PLAINTIFFS' CLAIMS AGAINST ALLIANCE ARE NOT

SUSTAINABLE

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Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim

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PLAINTIFFS' CryIL RIGHTS CLAIMS AGAINST ALLIANCE ARE UNSIJSTAINABLE

Counts 3,72,1 3,14, and l5 are barred by the Two-Year Stafute of Limitations for Tort Claims

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1. 2.
VI

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Counts 3 ,12,13, Blanchet and AB

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not a State

Plaintiff S

Claims are barred because Alliance is

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LANHAM ACT CLAIMS AGAINST ALLIANCE ARE NOT VIABLE..........

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A.
B

The Complaint Fails to Allege Alliance is a Competitor with Plaintif...

Plaintiffs' Lanham Act Alle

Heightened Fraud Pleading

t be Analyzed under

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VII.

PLAINTIFFS' VIOLATE RULE 9(B) BECAUSE THEIR RICO CLAIMS FAIL TO ALLEGE PREDICATE ACTS AGAINST ALLIANCE VITH

PARTICULARITY
VM. CONCLUSION

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TABLE OF AUTHORITIES
Supreme Court Opinions Allen v. Wright,468U.S.737 (1984) Ashcroft v. Iqbal,556 U.S. 662 (2009) Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) ...
Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994)
West v.

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8,9
8

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Atkins,487 U.S. 42 (1988)

Third Circuit Opinions

Accenture Global Serys. GmbHv. Guidewire Software, 1nc.,581 F. Supp. 2d654 (D. .... Del.2008) Warner-Lambert Co. v. BreathAstre, Inc.,204F.3d 87 (3d Cir. 2000) Seventh
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.... 1 I

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Circuit Opinions
Ahlgrimm, 450 F .2d 7 68, 770 (7th Cir.
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See e.g. Hansen v.

5)

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United States v. Lockheed-Martin Corp.,328 F.3d 374 (7thCir.2003)

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Ninth Circuit Opinions

Balistreri v. Pacifca Police Dep't, 901 F .2d 696 (9fh Cir. 1988)
Cafasso v. Gen. Dynamics C4 9ys.,637 F.3d 1047 (9th Cir. ...... 8

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20II)

......7

Chandlerv. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115 (9th Cir. 2010) ..................4
Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42F.3d 1541 (9th Cir. 1994) Edwards v. Marin Park, lnc.,356 F.3d 1058 (9th Cir. 2004)

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11,13
..... 13

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Federal Reserve Bank of San Francisco v. HK Systems,1997 WL 227955, at *3 (N.D. I4 Cal. 1997

T2 FLIR dys. v. Sierra Media, hnc.,903 F. Supp. 2d ll20 (D. Or. 2012) 6 Hatch v. Reliance Ins. Co.,7 58 F .2d 409 (9th Cir. 1985) 24 Jack Russell Terrier Network v. Am. Kennel Club, nc.,407 F.3d 1027 (9th Cir. 2005) 12 25

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Jurinv. Google, nc.,695F. Supp.2dIIl7 (E.D. Cal.2010) Ketchum v. Cnty. of Alameda, 811 F.2d 1243 (gth Cir. 1987) Knievel v. ESPN,393 F.3d 1068 (9th Cir. 2005)

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...... 10

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MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 5 of 20

Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (ghhCir. 1991) . 1 4

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Leev. City of L.A.,250 F.3d 668 (9th Cir.200l)

McHenry v. Renne,84 F.3d Il72 (9th Cir. 1996) Nevijel v. N. Coast Life Ins. Co.,651 F.2d 671 (9th Cir. 1981)
Schmidt v. Herrmann,614F.2d 1221 (gthCir. 1980) Southland Sod Farms v. Stover Seed Co.,708 F.3d 1134 (gthCir. 1997)
St.

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Clair v. Chico,880 F.2d 199 (9h Cir. 1989)

47 6 F .3d
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Swartz v. KPMG L.L.P.,

56 (9th Cir. 2001)

Usher v. Los Angeles,828 F.2d 556 (9th Cir. 1987) ............. Yourish v. Cal. Amplffier, 191 F.3d 983 (9th Cir. 1999)

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Eleventh Circuit Opinions

Pelletier v. Zweifel,92l F.2d 1465 (l lth Cir. 1991) Federal Circuit Opinions
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Paradise Creations, Inc. v. U

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nc.,315 F.3d 1304 (Fed. Cir. 2003)

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California State Opinions

Friends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,2}} CaL App.4th 1470 (2011) 6
Gutierrez v. G

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&M Oil Co.,I84

Cal. App. 4th551 (2010)

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California State Statutes

Cal. Civ. Proc. Code $ 335.1 (Deering) Cal. Corp. Code $$ 2205(c), 5008.6(c) (Deering)
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I)elaware State Opinions

Robbins v. P'shp for Bank Capital, L.P.,2010 Del. Ch. LEXIS 167 (DeI. Ch. July 23,

20r0)

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Rules
F ed. R. Civ. P. 8(a)(2)
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F ed. R. Civ. F. 9(b) F ed. R. Civ. P. t7(b)(2) S.D. Cal. Civ. R. 83.3(k)
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Case No. 3:13-CV-01944-C^B-BLM

MEMORANDIJM ISO MOTION TO DISMISS COMPLAINT

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I.

INTRODUCTION

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Plaintiffs allege at least 12 causes of action against Defendant National Family

Justice Center Alliance ("Alliance"); however, the Complaint fails to allege any actual facts to support these claims. The Complaint quotes statements from and cites to

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Alliance's website; but other than that, there are no other factual allegations in the Complaint. The Complaint fails to provide facts showing how Alliance has any
connection to Plaintiff Stuart or the two corporate plaintiff entities.

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Alliance requests the Court dismiss with prejudice the Complaint because

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Plaintiffs' have failed to state valid claims against Alliance for several other reasons,
including: lack of standing, failure to file within applicable statutes of limitations, and failure to properly plead the allegations in the Complaint.

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ALLEGATIONS AGAII{ST ALLIANCE IN COMPLAINT

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April 15,2010, Plaintiff Stuart was involved in an incident while attending a

a result,

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seminar at the San Diego County Bar Association, labeled in the Complaint as the

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l6 "stuart Assault." (Complaint at !f!f 114,124-140.) As

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Sheriff s deputies forced

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Stuart to leave the seminar. (Id. at

fl 135.) The Complaint

does not allege Alliance was

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involved in the Stuart Assault.

The Complaint alleges "DEFENDANTS" owed one or more professional duties to plaintif, including the duty of ordinary reasonable care, the duty to act reasonably,
and to avoid acting unreasonably and culpably. (Complaint at ufl 151-152, subd. A.)

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The Complaint alleges Defendants utilize false and misleading commercial

speech to advertise and offer their legal services. (Complaint at

tf 260.) Alliance

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represents they abide by ordinary and professional standards of care. (Complaint at

11261,

subd. D;

Exhibit4I.)

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Alliance operates the lead "technical assistance" center for the development of
Family Justice Centers across the United States and around the world. (Complaint at fl
262,
subd,.

A.) "Alliance

is the coordinator of the current California Family Justice I

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MEMORANDUM ISO MOTION TO DISMISS COMPLAINT * Case No.3:13-CV-01944-CAB-BLM

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initiative, funded by the Blue Shield of California Foundation," and together they are
setting up additional centers in California. (Complaint atn262, subd. E.) Alliance staffs the "FJC Legal Network, the Client Services Program, Camp HOPE, and the Teen Relationship Violence Program in the San Diego Family Justice Center." (Complaint at
11262, subd. F.)

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All defendants claims are false and misleading. (Complaint at fl 265.)

Defendants operate criminal enterprises depriving Plaintiffs of their property and

liberty, utilizing misrepresentations in their commercial speech (Complaint at fl 266.)

The Complaint further names 48 defendants who purportedly engage in the San

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CA

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Diego Family Law Community Domestic Dispute Industry Enterprise (SD-DDICE)

which is a civil and criminal conspiracy. (Complaint at flJf 274-275.) The DDICE
compete illegally in the marketplace through "mutual anticompetitive pacts, fraudulent

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licensing, certification, specialization, excluding or deterring fair competition." (Complaint at fl 280.) The DDICE constitutes a criminal enterprise providing alleged "forensic psychology" services to the public. (Complaint at fl 284.)

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Additionally, the Complaint alleges Alliance engaged in Domestic Dispute

Industry Intervention Advocate Criminal Enterprise (DDI-IACE) which formulates and
implements policies relative to family law, child custody, and domestic relations.

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(Complaint at !f 281r) The DDI-IACE allegedly commits harassment and abuse through "the illegal process of law, abuse of process, illegal advice, guidance, form selection,

individual litigant support, advocacy, and services." (Complaint

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282,285.) The

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DDI-IACE's commercial purpose is to generate revenue and income by expanding the

ENTERPRISE through fraud on the United States, and state and local charities. (Complaint at fl 283.) Alliance assists citizens in obtaining DVILS ORDERS through illegal formwork,
technical assistance and unauthorized practice of law. Alliance provides "detailed, case

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specific advice, instructions, guidance direction advocacy, oversight and monitoring of

the process bywhich the DVILS ORDERS are issued." (Complaint atfl 31S.)
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2 MEMORA.NDUM ISO MOTION TO DISMISS COMPLAINT

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Plaintif

appear to allege the

following causes of action against Alliance, in

) addition to numerous other defendants:

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o Count 3-Culpable Breach of Duty under Govt. Code $ S20 / Deprivation of

Constitutional Rights 42USC 1983 (Complunt atIlT 151-157.)

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o Count l2-Obstructing justice; intimidatingparty,witness,

1985(2) (Complaint at lJfl 193-204.)

or

juror 42 USC

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Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 19S5(3)(a) (Complaint at flfl 205-206.)

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o Count l4-Conspiracy deprive of Constitutional Rights 42 USC 1985(3Xb)

(Complaint at flfl 207-205.)

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o Count 15-Conspiracy .
Count

to Deprive of Constitutional Rights 42 USC 1985(3)(c)

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(Complaint at ]n 209 -210.)

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2l-False Designation of Origin,

False Description Lanham

Act

15 USC

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1125 (Complaint at [n260-267.)

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o RICO Enterprise l*California Domestic Dispute Criminal Enterprise

(Complaint at tftl 273-274.)

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o RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal
(Complaint at lffl 275-280.)

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o RICO Enterprise 3-Domestic Dispute Industry Intervention Advocate Criminal

Enterprise (Complalrnt at
lTll

281-283.)

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RICO Enterprise 4-Forensic Investigator Criminal Enterprise (Complaint at flfl

284-286.) Racketeering Claim

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2-18 USC

1962(c)(d) Honest Service Fraud 18 USC 1346

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18 USC $ 1346 (Complaint at'lifl 345-347.)

Declaratory Judgment 28 USC 2201 (Complaint at tfll 392-396.)

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III. A.

THERE IS I\O JURISDICTION FOR THE COMPLAINT

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Standard for L2(bX1,) Motion to Dismiss for Lack of Subiect Matter

Jurisdiction
Article III of the U.S. Constitution limits the subject matter jurisdiction of federal
courts to matters that arc ripe and where the Plaintiffs have standing. Allen v. Wright, 468 U.S. 737,750 (19S4). The party asserting subject matter jurisdiction has the burden

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of establishing it is the proper party to bring the matter before the court. Kokkonen
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The doctrine of ripeness

v.

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allows a court to dispose of matters that

federal subj ect matter jurisdiction:

are

premature or too speculative. To establish

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First, the plaintiff must prove that he suffered an "injury infacl," i.e., an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," id. a|560 (citations, internal quotation marks, and footnote omitted). Second, the plaintiff must establish a causal connection by proving that her injury is fairly traceable to the challenged conduct of the defendant. Id. at 560-61. Third, the plaintiff must show that her injury will likely be redressed by a favorable decision. Chandlerv. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115, 1I2l-22 (9th Cir. 2010)
(quoting Lujan v. Defenders of Witdtife,504 U.S. 555, 560- 6l
ripeness are properly raised in a motion to dismiss under Rule

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(lgg2)).

Standing and
St.

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lz(b)(I).

Clair

v.

Chico,880 F.2d 199,201(9th Cir. 1989)

B.

Corporate Entity Plaintiffs Lack Standins to File This Lawsuit

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1.

California Coalition for Families and Children is not Renresented bv

Counsel

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Whether a corporation can file suit in federal court is determined "by the law in

which it was organized." Fed. R. Civ. P. l7(b)(2). The California Coalition for
Families and Children, Inc. ("CCFC") is a Delaware corporation, incorporated the day before the current action was filed. (Complaint at fl 1; RIN, at Ex. 1, November 25,
2013, Delaware Department of State "Entify Details" print-out for Plaintiff California
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MEMORANDUM ISO MOTION TO DISMISS COMPLAINT

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

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Coalition for Families and Children.) Accordingly, CCFC's ability to file a lawsuit is
governed by Delawarelaw, which states a corporation must appear through counsel and cannot proceed in propria persona. Robbins v. P'ship Ch. LEXIS 167,

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for Bank Capital, L.P.,2010 Del.

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at*2 (Del. Ch. July 23,2010). Additionally, this Court only allows

corporation to appear through an attorney permitted to practice in the Southem District

of California. S.D. Cal. Civ. R. 83.3(k).

The Complaint in this action identifies Colbern Stuart and Dean Browning Webb,

as attorneys of record for

Plaintif CCFC and Lexevia, PC. (Complaint

at page 1, lines

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1-8.) However, Stuart is unable to appear as counsel for CCFC. The Complaint alleges
Stuart is an attomey licensed and admitted to practice in California, Arizona, and Nevada, as well as many federal court district (Complaint at lffl 3,102-106,8x.2.)

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Flowever, Stuart was disbarred in Califomia in December 2012 due to his

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criminal conviction for threatening and harassing his ex-wife. (RIN at Ex. 2, December

2,2013, State Bar of California attorney status printout for Colbern Stuart, with State
Bar Court decision and order attached.) Further, Stuart's Nevada and Arizona legal
licenses are cuffently suspended. (RJN at Ex. 3, December 2,2013, State Bar of Nevada

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attorney status print out for Colbem Stuart, with State Bar Court decision and order
attached; and, RIN at Ex. 4, December 2,2}I3,State Bar

of

Arzona attorney status print

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out for Colbern Stuart.) Because Stuart is not licensed to practice in the Southern

District, or anywhere else, he cannot act as CCFC's counsel in this matter.

CCFC's other purported counsel, Mr. Webb, is licensed in the state of Washington. The Complaint states Mr. Webb has an application for'ro hac vice

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pending." (Complaint atpage 1.) However, this application is not reflected in the
Court's docket for this case. Additionally, Mr. Webb failed to sign the Complaint. (Complaint atpage 1, line 4.) Thus, Mr. V/ebb cannot act as CCFC's counsel either.
Because CCFC is attempting to proceed without counsel in violation of Delaware

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law, the Court should dismiss with prejudice all of CCFC's claims in this action.

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2.

Lexevia is a Suspended Corporation

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Lexevia is a California professional corporation, governed by California law.

(Complaint at fl 1.) According to the California Secretary of State, Lexevia is currently

a suspended corporation. (RIN at Ex. 5, Novemb er

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25,z}I3,Califomia Secretary of
PC.) A suspended corporation

State Business Entity detail status printout for Lexevia,

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lacks capacity to sue in Friends of Shingle Springs Interchange, Inc. v. Cnty. of El

Dorado,200 CaI. App. 4h1470,1482 (2011); Cal. Corp. Code $$ 2205(c), 5008.6(c) (Deering). Additionally,
court under Article
a

plaintiff corporation must have standing to sue in federal

III of the Constitution. Paradise Creations, Inc. v. U V Sales, Inc.,

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315 F.3d 1304,1308 (Fed. Cir. 2003). Standing is determined at the inception of the

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suit; thus, a suspended corporation lacks capacity to sue even if it revives its status
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lawsuit. Id. at 1309-10.

As a suspended corporation, Lexevia lacks capacity to maintain this action.

Further, Lexevia has appeared in this action without counsel. Similar to Delaware law,
a Califomia corporation may only appear in an action through counsel. Gutierrez v.

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&M Oil Co.,184

Cal. App.4th55I,564 (2010); see also S.D. Cal. Civ. R.83.3(k).

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Because Lexevia is not represented by counsel, the Court should dismiss with prejudice

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all Lexevia's claims in this action.

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C.

Jurisdiction could Never be Sustained because Complaint Violates Rute

Federal Rule of Civil Procedure 8 requires that a complaint contain "a short and

2l plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ.
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P. 8(a)(2). Inanalyzing this issue, the Ninth Circuit has stated:

and we know of no authority supporting the [W]e have never held proposition that a pleading may be of unlimited length and opacity. Our cases instruct otherwise. See, e.g., McHenry v. Renne,84 F.3d lI72,lI7780 (gth Cir.1996) (upholding a Rule 8(a) dismissal of a complaint that was "argumentative, prolix, replete with redundancy, and largely irrelevmt"); Hatch v. Reliance Ins. Co., 7 58 F .2d 409, 415 (9th Cir. 1985) (upholding a Rule 8(a)) dismissal of a complaint that "exceeded 70 pages in length, fand was confusing and conclusory"); Nevijel v. N. Coast Life Ins. Co.,651 F.2d 677,674 (9th Cir. 1981) (holding that Rule 8(a) is violated when a

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complaint is excessively "verbose, confusing and almost entirely conclusory"); Schmidt v. Herrmann,614F.2d 1221,1224 (9th Cir. 1980) (upholding a Rule 8(a) dismissal of "confusing, distracting, ambiguous, and unintelligible pleadings").... Rule 8(a) has "been held to be violated by a pleading that was needlessly long, or a complaint that was highly repetitious, or confused, or consisted of incomprehensible rambling." [Citation.] Our district courts are busy enough without having to penetrate a tome approaching the magnitude of War and Peace to discem a plaintiff s claims and allegations."
Cafasso v. Gen. Dynamics C4
773

Sys.

, 637

.3d 1047 ,

105

8 (9th Cir.

20II)

(request to file

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-page amended complaint denied).

The Complaint in this action is 175 pages in length. The length balloons to

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approximately 1,300 pages when the voluminous exhibits are included. The Complaint
is also extremely difficult to follow. It attempts to weave a complicated criminal and

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civil

cons pfuacybetween everyone who ever touched one of

Mr. Stuart's court matters.

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The Complaint also utilizes an incomprehensible network of acronyms with passages

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like "[t]he SD-DDICE, acting in concert with the San Diego DDIJO, SCCDC, SDCBA,
DDISO, and the SAC engage in. . . " (Complaint at fl 2:79.)
Thus, the Complaint consists of "incomprehensible rambling" and requires the
defendants and the Court "to penetrate atome approaching the magnitude of War and

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20

Id.

Additionally, the

Complaint asserts no less than 16 claims against Blanchett and ABC&K that are "confusing and conclusory."

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Id.

This Complaint requires a court and the adverse

parties to "try to fish a gold coin from a bucket of mud[,]" United States v. Lockheed-

Martin Corp.,328 F.3d 374,378 (7th Cir. 2003). The Court should dismiss with
prejudice the entire Complaint for failure to comply with Rule 8.

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Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 13 of 20

IV. A.

PLAINTIF'F'S' CLAIMS AGAINST ALLIANCE ARE NOT

SUSTAINABLE

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Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim

Federal Rules of Civil Procedure rule 12(b)(6) allows a defendant to challenge

4
5

sufficiency of the pleadings where the pleadings either "lack a cognizable legal theory"
or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri
v.

6 7
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Pacffica Police Dep't,901 F.2d 696,699 (9th Cir. 1988). In recent years, the U.S.
Supreme Court established a more stringent standard of review
See

for 12(b)(6) motions.

9
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Ashcroft v. Iqbal,556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,550U.S. 544

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(2007).

M (t)
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To survive a motion to dismiss under this new standard, "a complaint must
contain sufficient factual matter, accepted as true, to ostate a claim for relief that is plausible on its face."' Ashcroft,556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly,550

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u.s. s44, s70 (2007)).

"A claim has facial plausibility when
misconduct alleged
the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the

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." Id. (citing Bell Atl.

Corp. v. Twombly,550 U.S. 544, 556 (2007)).

18

"Determining whether a complaint states a plausible claim for relief will ... be a context-

l9 specific task that requires the reviewing court to draw on its judicial experience and
20

common sense." Id. at 679 (citng lqbat v. Hasty,490 F.3d 143, 157-58 (2d Cir.2007)).
The Court must therefore "identify the allegations in the complaint that are not

2l
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entitled to the assumption of truth" and.evaluate "the factu complaint to determine

al

allegations in [the]

if

they plausibly suggest an entitlement to

relief." Id. at 680-81.

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But only factual allegations must be accepted as true, not legal conclusions. Id. at 678.
Further, "[t]hreadb are recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffic e." raise a right to relief above the speculative

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Id. Factual allegations

"must be enough to

level." Bell Atl. Corp.,550 U.S. at 555.

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Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 14 of 20

"[O]nly

a complaint that states a plausible claim for

relief survives

motion to dismiss."

Ashcroft,556 U.S. at 679. Finally, in ruling on a motion to dismiss, this Courtmay 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

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by reference' doctrine to situations in which the plaintiffls 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

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does not explicitly allege the contents of that document in the complaint." See Knievel

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v. ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) Accordingly, this Court may
appropriately review the government issued documents associated with Stuart's status
as a disbarred or suspended attorney and the status of the corporate

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plaintif.

V. A.

PLAINTIF'F'S'

CIVI

RIGHTS CLAIMS AGAINST ALLIANCE ARE UNSUSTAINABLE

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Counts 3,12,13,14, and 15 are barred by the Two-lfear Statute

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Limitations for Tort Claims

Federal court claims brought under Sections 1983 and 1985 are regulated by the

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applicable statute of limitations of the forum state in which the claim is brought. Usher
v. Los Angeles,828F.2d 556, 558 (9th

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Cir. 1987). Accordingly,atort claimin

California must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code
$ 335.1 (Deering).

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Plaintiffls 1983 and 1985 claims against Alliance are based on the so-called
"stuart Assault." Count 12 allegng obstructing justice, etc. is based on the allegation
that the Stuart Assault hindered the administration ofjustice for Plaintiffs. (Complaint

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at][z.)

Counts 12 through 15 allege all Defendants violated Plaintiffs' civil rights by

committing the Stuart Assault. (Complaint at lifl 205-210,216-235.) Thus, each of

these claims is based on the facts concerning the Stuart Assault.

MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 15 of 20

However, the Complaint alleges the Stuart Assault occurred on April 15, 2010. (Complaint at fl

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II4.) Plaintif filed their Complaint on August20,2073,

three years

and four months after the Stuart Assault. Because Counts 3 and 12-15 are tort based

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claims, they must have been filed within California's two-year statute of limitations.

This did not occur; hence, these claims must be dismissed with prejudice against Alliance.

6 7 8

1.

Counts 3" 12"

13.ll"and

15 Fail to

Allese anv Facts asainst Blanchet and

ABC&K
As discussed above, Counts 3 and 12 through 15 allege all Defendants violated

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Plaintiffs' civil rights by committing the Stuart Assault. (Complaint

at fllf 205-210,216-

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235.) However, the Complaint fails to identify Alliance's connection to the Stuart

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Assault. The Complaint does not allege Alliance was present at the seminar on April 15,2010. The Complaint does not state facts alleging Alliance was part of the
"conspiracy" to have Stuart ejected from the seminar. In fact, the Complaint does not
mention Alliance at aII in reference to the Stuart Assault.

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Without facts alleging ABC&K's participation in the Stuart Assault, the claimed

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civil rights violations against ABC&K

prejudice.

are not

valid claims, and must be dismissed with

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2.

Plaintiffls Civil Rights Claims are barred because Alliance is not a State Actor

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To state a claim under Section 1983, a plaintiff must allege: (1) a violation of a

right secured by the Constitution and the laws of the United States; and (2) that the
deprivation was committed by a person acting under color of state law. See West v.

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Atkins,487 U.S. 42,48 (1988); Ketchum v. Cnty. of Alameda, 811 F.2d 1243,1245 (gth

Cir. 1987).
In this case, the Plaintiffs' allegations against Alliance consist of general citations
to the Alliance website and its relation to the San Diego County Family Court system. Other than the work it provides to individuals related to family court proceedings, the
{0o6494s4.DOCX}

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MEMORANDIJM ISO MOTION TO DISMISS COMPLAINT

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Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 16 of 20

Complaint fails to allege Alliance has any relation to the government, or was working
under color of state law. Just like the attomey defendants to the Complaint, Alliance is not rendered a state actor merely by participating in the Family Court system. See e.g.
Hansen v. Ahlgrimm,450 F.2d,768,770

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(7thCir. I 975).

There are simply no'facts alleged that support a claim Alliance is a state actor.

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Without said allegations, Alliance cannot be liable for civil rights violations under
Sections 1983 and 1985. Accordingly, Plaintiffs claims against for civil rights

violations against Alliance are invalid, and should be dismissed with prejudice.

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VI.

LANHAM ACT CLAIMS AGAII\ST ALLIANCE ARE I\OT VIABLE

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To allege aLarfrtarnAct violation, Plaintiffs must allege Alliance (1) "made false
or misleading statements as to his own product for another's]"; (2) "there is acfual deception or at least a tendency to deceive a substantial portion of the intended

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audience"; (3) "the deception is material in that it is likely to influence purchasing

l4 decisions"; (4) "the advertised goods traveled in interstate cormece;" and (5) "there is
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a likelihood of injury to the

plaintiff in terms of declining sales, loss of good will, etc."

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Warner-Lambert Co. v. BreathAsure, [nc.,204F.3d87,9I-92 (3d Cir. 2000); Southland

l7 Sod Farms v. Stover Seed Co.,I08 F.3d

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II34,lI39

(9th Cir. 1997). Under this

about a statement, and

standard,

a'laintiff must set forth what is false or misleading

why it is false." Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42 F.3d 1541,
1548 (9th

20

Cir. 1994). To allege aLanhamAct claim due to misleading statements,

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plaintiffs are "required to allege facts suggesting that the markelace was actually
confused or misled, not just that the markelace could have been confused or misled."

Accenture Global Servs. GmbH v. Guidewire Softwar"e, 1nc.,581 F. Supp. 2d 654,66667 (D. Del. 2008).

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A.

The Complaint Fails to Allese Alliance is a Competitor with Plaintiffs

A claim for false advertising under the Lanham Act will not be sustained
"fw]ithout a showing of direct competition." Jurin v. Google, nc.,695 F. Supp. 2d

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1Il7,Il22
{006494s4.DOCX}

(E.D. CaL.2010). In Jurin, the court granted defendant's 12(b)(6) motion to

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Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 17 of 20

dismiss because there was no showing plaintiff and defendant were direct competitors,

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stating: "fd]efendant nonetheless does not directly sell, produce, or otherwise compete

in the building materials market." To maintain a claim for false advertising under the
Lanham Act the parties have to be direct competitors.

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5

Id. A claim for false advertising

v. Am.

under the Lanham act requires: "that the injury is 'competitive,' or harmful to the

6 7 8 9
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plaintiff s ability to compete with the defendant." Jack Russell Terrier Network
Kennel Club, nc.,407 F.3d 1027,1037 (9th Cir. 2005). In the Ninth Circuit
a

plaintiff

must be in "actval" or "direct" competition with the defendant and assert a competitive

injury to establish standin g. FLIR,lys. v. Sierra Media, hnc.,903 F. Supp. 2d,1120,

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rt42 (D. or. 2012).

Count

2l of the Complaint alleges violation of the Lanham Act against all

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Defendants. However, the Complaint fails to allege Alliance is direct competitors with

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Plaintiffs. Plaintiff Stuart is a disbarred attorney, trtd cannot practice in the family court
system. Plaintiff Lexevia is a suspended corporation, and cannot by definition be in competition with the Alliance. Plaintiff CCFC did not even exist until the day before
the Complaint was filed, thus

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it could not have been in competition with Alliance

at the

time of the events alleged in the Complaint.

Plaintiffs'Lanhartact claims must fail because not one of the Plaintif is in

competition with Alliance, and should be dismissed with prejudice.

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B.

Plaintiffs' Lanham Act Alleeations must be Analyzed under Heishtened

Fraud Pleadins Standard
Under Federal Rule of Civil Procedure 9(b), claims alleging fraud are subject to a

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heightened pleading standard requiring the plaintiff to "state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). "[T]he plaintiff must set forth
an explanation as to why the statement or omission complained of was false or

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26 27 28

misleading." Yourishv. Cal. Amplifier, 191 F.3d g83,gg3 (9th Cir. lggg). To avoid
dismissal, Rule 9(b) requires plaintiffs to allege the "time, place and specific content

of

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the false representations as well as the identities of the parties to this representation."

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3

Edwards v. Marin Park, lnc.,356 F.3d 1058,1065-66 (9th Cir. 2004). The Lanham Act allegations against Alliance fail to meet the Rule 9 pleading

4
5

standard. The Complaint merely alleges misleading advertising against all Defendants. (Complaint at lffl 260,265.). As to Alliance, the Complaint offers a citation to an exhibit containing pages from the Alliance website, and quoted language from the

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website. (Complaint at fl 261, subd. A-G; Exhibit 41.) The complaint contains no
further allegations against Alliance related to the Lanham Act claims. Thus, the Complaint fails to explain why the Alliance website is misleading or the exact nature of why the statements are fraudulent. For these reasons, Plaintiffs Lanham Act claims are
not properly pleaded and must be dismissed with prejudice.

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VII.

PLAINTIF'FS' VIOLATE RULE 9) BECAUSE THEIR RICO CLAIMS

FAIL TO ALLEGE PREDICATE ACTS AGAINST ALLIANCE WITH

PARTICULARITY
The Complaint fails to expressly identify any RICO predicate acts by Alliance, but again sirply refers to several acts by "Defendants." To avoid dismissal, Rule 9(b)

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t7 requires that Plaintif state the "time, place and specific content of the false
18

representations as well as the identities of the parties to this representatton." Id.

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Further, a"plaintiff must set forth what is false or misleading about a statement, and

why it is false." Decker,42F.3d at 1548. Plaintiffs have done none of these things. "Rule 9(b) does not allow a complaint
to merely lump multiple defendants together but 'require[s] plaintiffs to differentiate

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their allegations when suing more than one defendant ... and inform each defendant
separately of the allegations surounding his alleged participation in the fraud.
v. KPMG

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"' Swartz

L.L.P.,476F.3d 756,764-65 (9th Cir.2007). Courts have repeatedly insisted

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that, in addition to particulanrty of time, place, and manner of each act of fraud, the role

of each defendant in each scheme be described in RICO actions alleging the predicate

{00649454.DOCX}

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acts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940

.2d 397

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40s (9th Cir. 199r). In Pelletier v. Zweifel,92I F.2d 1465, 1518-19 (11th Cir. l99l), the Eleventh

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Circuit affirmed the district court's dismissal of a RICO claim because it constituted
"shotgun" pleadings that made it extremely difficult for the court and opposing parties
to identify the facts that would give rise to a cognizable claim. Pelletier,92l
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.2d at

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1518 (noting that defendant and "the district court had to sift through the facts presented and decide for themselves which were material to the particular cause of action asserted,
a

difficult and laborious task indeed."; see also Savage v. Council on American-Islamic

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l0 Relations, Inc., 2008 WL 2951281, at*14 (N.D. Cal. July 25,2008) (RICO claim
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v)

insufficient where plaintiff set forth a "redundantnarrative of allegations and

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l2 conclusions of law, but fmade] no attempt to allege what facts are material to his claims
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under the RICO statute, or what facts are used to support what claims under particular

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l4 subsections of RICO")); Federal Reserve Bank of San Francisco v. HK Systems,1997 15 WL 227955, at *3 (N.D. CaL 1997) (complaint insufficient for failure to "identify
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exactly which acts are 'predicate acts' for RICO liability")

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Similarly here, Plaintif' RICO allegations, just like the majority of allegations in
the Complaint, "merely lump multiple defendants together" to allege wide ranging
schemes and conspiracies. The Complaint is 175 pages long with almost 400

20

paragraphs. Due to the length of the Complaint and its continual use of confusing acronyms, Defendants are required to "sift through the facts presented and decide for
themselves which were material.to the particular causefs] of action asserted" against

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them. Under these circumstances, it is nearly impossible for Alliance to determine

which, if any, predicate acts are alleged against them. This format of Complaint
violates Rule 9(b).

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Plaintiffs' complete failure to plead this element requires dismissal with

prejudice.

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VIII. CONCLUSION
For the above reasons, Defendant National Family Justice Center Alliance
requests the Court dismiss Plaintiffs' Complaint with prejudice.

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Respectfully submitted,

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Dated: December 3, 2013

WINGERT GREBING BRUBAKER & JUSKIE LLP

By:

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s/ Charles R. Grebins CHARLES R. GREBING CHRISTOPHER W. TODD ANDREW A. SERVAIS D'WAYNE H. STEIN Attornevs for Defendant. NATIONAL FAMILV JUSTICE CETER ALLIANCE

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