Professional Documents
Culture Documents
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WINGERT GREBING BRUBAKER & JUSKIE LLP One AmeicaPlaza, Suite 1200 600 West Broadway San Diego, CA 92101 (619) 232-815 1 ; Fax (619) 232-466s Attorneys for Defendants LORI CLARK VIVIANO and LAV/ OFFICES OF LORI CLARK VIVIANO
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CALIFORNIA COALITION FOR FAMILIES AND CHILDREN" a Delaware 15 Corporation. LEXEVIA. PC. a' Califomia Professionaf Corporatio, and COLBERN l6 C. STUART, an individual,
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Case No. :
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Plaintiffs,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEF'ENDANTS LORI CLARK VIVIAI{O & LA\ry OFF'ICES OF LORI CLARI( VIVIANO'S MOTION TO DISMISS COMPLAINT ed. R. Civ. P. 12(bx and Fed. R. Civ. P.
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Date:
Time: Ctrm:
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a California Corporation;
fo0649573.DOCX)
LISA SCHALL,
CASC
NO.3:13-CV-01944-CAB-BLM
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Defendants.
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TABLE OF CONTENTS
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Jurisdiction
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1. 2.
C.
California Coalition for Families and Children is not Represented by Counsel Lexevia is a Suspended Corporation...........
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Jurisdiction could Never be Sustained because the Complaint Violates Rule 8.............
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Counts 3,12,13,14, and 15 Fail to Allege any Facts against Viviano ..... 10
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Plaintiffls Civil Rights Claims are barred because Viviano is not State Actor
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A. A.
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rX. CONCLUSION
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,.,....T7
TABLE OF AUTHORITIES
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Supreme Court Opinions Allen v. Wright, 468 U.S. 737 (1984) Ashcroft v. Iqbal,556 U.S. 662 (2009)
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BE&K Constr. Co. v. NLfuB,536 U.S. 516 (2002) Bell Att. Corp. v. Twombly,550 U.S. 544 (2007)
CaL Motor Transp. Co. v. Trucking Unlimited,404 U.S. 508 (1972) ......
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....
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E. R.R. Presidents Conf v. Noerr Motor Freight, Lnc.,365 U.S. I 27 (1961) Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994)
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CA
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Mine Workers v. Pennington,3Sl U.S. 657 (1965) West v. Atkins,487 U.S. 42 (1988)
Second
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Circuit Opinions
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l6 Third Circuit Opinions t7 Accenture Global Servs. GmbH v. Guidewire Soffi,vare, nc.,581 F. Supp. 2d 654 (D. t3 DeI.2008)
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Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115 (9th Cir. 2010) Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42F.3d (9th Cir. t994)
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Case No.3:13-CV-01944-CAB-BLM
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Fed. Reserve Bank of S.F. v. HK Sys.,1997 WL 227955, at *3 (N.D. Cal. 1997) ........ 16
FLIR Sys. v. Sierra Media, Lnc.,903 F. Supp. 2d Il20 (D. Or. 2012)
Jack Russell Terrier Network v. Am. Kennel Club, nc.,407 F.3d 1027
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,,........ 12
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Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (gthCir. 1991) .16
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2001)
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25,2008)
Sosa v. DIfuECTV, Inc., 437 F.3d 923
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(gthCir. 2006) 13 Southland Sod Farms v. Stover Seed Co.,l08 F.3d 1I34 (9thCir. 1997) t4 St. Clair v. Chico,880 F.2d 199 (gth Cir. 1989)
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Swartz v. KPMG
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Friends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,200 CaI. App. 4th
1470
(20rt)
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20t0)
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r Bank Capital, L.P., 2010 Del. Ch. LEXIS 167 (DeI. Ch. July 23,
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Rules
Fed. R. Civ. P. 8(a)(2) Fed. R. Civ. P. I7(b)(2) S.D. Cal. Civ. R. 83.3(k)
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{00649573.DOCX}
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CaSE NO.
3:13-CV-01944-CAB-BLM
I.
12 causes
INTRODUCTION
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Plaintiffs Colbern Stuart and his two corporate entities ("Plaintiffs) allege at least
of action against Defendants Lori Clark Viviano and the Law Offices of Lori
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Clark Viviano (collectively "Viviano"); however, the Complaint fails to allege any
actual facts to support these claims. In fact, the Complaint fails to allege any conduct
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his behalf. Notably, the Complaint is silent on the nature of Viviano's connection to
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Plaintif, what services Viviano performed, or the basis for Viviano's liability related
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In order to determine the basis for any other claims, Viviano must decipher Plaintiffs' crypticlT1-page Complaint with 1,300 pages of exhibits attached. But even
close analysis of the Complaint does not reveal the basis for the claims against Viviano.
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l4 Unlike many of the other attorney Defendants, the Complaint does not provide citation
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Plaintiffs.
The majority of the Complaint makes allegations against "a11 defendants," but
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violations. Thus, Viviano cannot determine the basis for these claims against her. This
type of complaint violates the federal court requirement that pleadings be concise. For this reason alone, Plaintiffs Complaint should be dismissed with prejudice.
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Additionally, Viviano requests the Court dismiss with prejudice the Complaint
because Plaintiffs' have failed to state valid claims against Viviano for several other reasons, including: lack of standing, failure to file within applicable statutes
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II.
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seminar at the San Diego County Bar Association, labeled in the Complaint as the
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a result,
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plaintiffs, including the duty of ordinary reasonable cae, the duty to act reasonably, and
to avoid acting rnreasonably and culpably. (Complaint at flfl I5I-I52, subd. A.)
The Complaint alleges Defendants utilize false and misleading commercial
speech to advertise and offer their legal services. (Complaint at
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fl 260.) Defendants'
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cofimercial speech represents they abide by ordinary and professional standards of care. (Complaint at Jf 26I.) Defendants operate criminal enterprises depriving Plaintiffs of
their property and liberty,lutllizing misrepresentations in their commercial speech
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) For
example, Defendants engaged in the San Diego Family Law Community Domestic
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Hoc Criminal Enterprise" which commits several frauds in the practice family law, child
custody, and domestic relations. (Complaint at nn288-2gg.) Between July 2007 and Decernber 2007 Viviano communicated fraudulent invoices for payment worth approximately $45,000. (Complaint at !i 339.)
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DISMISS COMPLAINT
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Count 3-Culpable Breach of Duty under Govt. Code $ 820 /Deprivation Constitutional Rights 42 USC 1983 (Complaint at llt]
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l-157 .)
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Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 1985(3)(a) (Complaint at flfl 205-206.) Count l4-Conspiracy deprive of Constitutional Rights 42 USC 1985(3Xb) (Complaint at flfl 207-208.) Count 15-Conspiracy to Deprive of Constitutional Rights 42 USC 1985(3)(c) (Complaint at flfl 209-210.)
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RICO Enterprise l-California Domestic Dispute Criminal Enterprise (Complaint at tffl 273-274.)
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RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal (Complaint at flfl 275-280.)
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Racketeering Claim
$ 1341
o Racketeering Claim 2-18 USC 1962(c)(d) Honest Service Fraud 18 USC 1346
18 USC $ 1346 (Complaint at lffl 34s-347.)
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III.
R THE COMPLAII{T
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A.
Jurisdiction
Article III of the U.S. Constitution limits the subject matter jurisdiction of federal
courts to matters that are ripe and where the Plaintiffs have standing. Allen v. Wright, 468 U.S. 737,750 (1984). 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
v.
(lgg4).
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legally protected interest which is (a) concrete and particulanzed, and (b) actual or
imminent, not conjecfural or hypothetical," Id. at 560 (citations, internal quotation
l4 marks, and footnote omitted). Second, the plaintiff must establish a causal connection
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Id. at 560-6L Third, the plaintiff must show that her injury will likely be redressed by
a favorable decision.Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d
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(1992). Standing and ripeness are properly raised in a motion to dismiss under Rule
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Whether a corporation can fle suit in federal court is determined "by the law in
which it was organized.l' Fed. R. Civ. P.I7(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 atfl 1; RIN, at Ex. 1, November 25,
2013, Delaware Department of State "Entity Details" print-out for Plaintiff California
10049573.DOCX)
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Coalition for Families and Children.) Accordingly, CCFC's abilify to file a lawsuit is
governed by Delaware law, which states a corporation must appear through counsel and cannot proceed in propria persona. Robbins v. P'ship
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Ch. LEXIS 167, at*2 (Del. Ch. July 23,2010). Additionally, this Court only allows a
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1-8.) The Complaint alleges Stuart is an attorney licensed and admitted to practice in California, Arizona, ffidNevada,
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well
as many federal
3, 102-106,Ex.2.)
However, Stuart is unable to appear as counsel for CCFC because was disbarred
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in California in December 2012 due to his criminal conviction for threatening and
attomey status printout for Colbern Stuart, with State Bar Court decision and order
l4 harassing his ex-wife. (RIN at Ex. 3, Decernber 2,2013, State Bar of California
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attached.) Further, Stuart's Nevada and Anzonalegal licenses are cuffently suspended.
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Colbern Stuart, with State Bar Court decision and order attached; and, RJN at Ex. 5,
December 2,2}l3,State Bar of Arizonaattorney status print 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.
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CCFC's other purported counsel, Mr. V/ebb, is licensed in the state of V/ashington. The Complaint states Mr. Webb has an application for "pro hac vice
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pending." (Complaint atpage 1, line 4.) However, this application is not reflected in
the Court's docket for this case. Additionally, Mr. Webb failed to sign the Complaint.
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(Complaint at page 171, lines 11-14.) Thus, Mr. V/ebb cannot act as CCFC's counsel
either. Because CCFC is attempting to proceed without counsel in violation
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Case No.3:13-CV-01944-CAB-BLM
Delaware law, the Court should dismiss with prejudice all of CCFC's claims in this
action.
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lacks capacity to sue in California. Friends of Shingle Springs Interchange, Inc. v. CnQ.
of El Dorado,200 CaI.App. 4th 1470,1482 (2011);Cal. Corp. Code $$ 2205(c),
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5008.6(c) (Deering). Additionally, a plaintiff corporation must have standing to sue in federal court under Article
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Sales, nc,,315 F.3d 1304, 1308 (Fed. Cir. 2003). Standing is determined at the
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inception of the suit; thus, a suspended corporation lacks capacity to sue even if revives its status following cofnmencement of a lawsuit. Id. at 1309-10.
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G &M Oit Co., 184 Cal. App. 4th551,564 (2010); see also S.D. Cal. Civ. R.83.3(k).
l9 Because Lexevia is not represented by counsel, the Court should dismiss with prejudice
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C.
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ.
P. S(aX2)
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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 1 172, ll77' 80 (9th Cir. 1996) (upholding a Rule 8(a) dismissal of a complaint that was "argumen tativ e, prolix, replete with redun dancy, and largely irrelev ant"); Hatch v. Reliance Ins. Co.,758F.2d409,415 (gthCir. 1985) (upholding a
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CASE NO.
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nule 8(a) dismissat of a complaint that "exceeded 70 pages in length, *us confusing and conclusory"); Nevijel v. North Coast Life Ins. Co.,651 r 2d 671,674 (9th Cir. 1981) (holding rhat Rule 8(a) is violated when a .omplaint is excessively "verbose, confusing and almost entirely .onclusory'); Schmidt v. Herrmann,614F.2d 1221,1224 (9th Cir. 1980) (upholding a Rule 8(a) dismissal of "confusing, distracting, ambiguous, and u"intelligible pleadings").... Rule 8(a) has "been held to be violated by a
pteading that was needlessly long, or a complaint that was r.petitious, or confused, or consisted of incomprehensible tCitation.l Our district courts are busy enough without having to r tome approaching the magnitude of War and Peace to discern plaintiffls claims and
fand
allegations."
llCofotto v. Gen. Dynamics C4 }ys.,637 F.3d 1047,1058 (9th Cir. 201 1) (request to file
complaint
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denied).
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llannroximately l4 llis also extremely difficult to follow. It attempts to weave a complicated criminal who ever touched one of Mr. Stuart's court matters. 15 ll.iuil conspiracy between everyone
Comnlaint
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llfne
lllike
,lsn rtilizes incomnrehensihle network of acronyms acronr with utilizes an incomprehensible Complaint also
passager ,
"ltlhe SD-DDICE acting in concert with the San Diego DDIJO, SCCDC, SDCBA,
and the SAC engage
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the ll lldefendants and the Court "to penetrale a tome approaching the magnitude of War and discern [the] plaintiff s claims and allegat ions;' Id. Additionally, the llrr*rto llComplaint asserts no less than 12 claims against Viviano that are "confusing and Id..This Complaint requires the Court and Defendants to "try to fsh a llrorrrfuro ry."
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the Complaint consists of "incomprehensible rambling" and requires
IIDDISO,
(Complaint at fl
279.)
lluo,37'
(7thcir.2oo3).
F.3d
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to
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,".
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t***"les
challenge
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of the pleadings where the pleadings either "lack a cognzable legal theory"
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llsufficiency "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri llor Police Dep't, g0l F.2d 696,699 (9th Cir. 19SS). In recent years, the
v.
U.S.
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suffrcient factual matter, accepted as true, to 'state a claim for relief that
on its face.
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"' Ashcroft,
(2007)).
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llattows
"O claim has facial plausibility when the plaintiff pleads factual content
that the court to draw the reasonable inference that the defendant is liable for the
alleged|' Id. (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 556 (2007)).
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sense." Id.
at
679
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tfre Court must therefore "identiff the allegations in the complain tthatare
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llentitled Ashcroft,556 llcomplaint to determine if they plausibly suggest an entitlement to relief." at 680-81 . But only factual allegations must be accepted as true, not
not to the assumption of truth" and evaluate "the factual allegations in [the] legal
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ons. Id. at
678.
by
to
Id.
Factual allegations "must be enough
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right to relief above the speculative level." Bell Atl. Corp.,550 U.S. at
555.
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Case No.3:13-CV-01944-CAB-BLM
"[O]nly
relief survives
motion to dismiss."
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Finally, in ruling on a motion to dismiss, this Court may take judicial notice of
matters of public record that are not subject to reasonable dispute. Lee v. City of L.4., 250 F.3d 668,689 (9th Cir. 2001). The Ninth Circuit has "extended the 'incorporation
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plaintiff does not explicitly allege the contents of that document in the complaint."
See
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Knievel v. ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) (9th Cir. 2005.) Accordingly,
this Court may appropriately review the government issued documents associated with Stuart's status as a disbarred or suspended attomey and the status of the corporate
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plaintiffs.
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UNSUS TAINABLE
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applicable statute of limitations of the forum state in which the claim is brought. Usher
v. Los Angeles,828 F.2d 556, 558 (9th
California must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code
$ 335.1 (Deering).
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flfl 205-210,216-
I llZlS. Thus, each of these claims is based on the facts concerning the Stuart Assault.
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However, the Complaint alleges the Stuart Assault occurred on April 15,2010.
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ll(Complaint at
114.) Plaintiffs filed their Complaint on August 20, 2013, three years
llun fou, months after the Stuart Assault. Because Counts 3 and
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llclaims, they must have been filed within Califomia's two-year statute of limitations. llThis did not occur; hence, each of the 1983 and 1985 claims against Viviano must be
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Counts 3, 12, L3. 14. and L5 Fail to Allese any Facts asainst Viviano
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ll lletaintiffs' civil rights by committing the Stuart Assault. (Complaint at lffl 205-210,216ll"e
However, the Complaint fails to identifu Viviano's connection to the Stuart
llAssault. The Complaint does not allege Viviano was present at the seminar on April 15,
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112010.
II
The Complaint does not state facts alleging Viviano was part of the "conspiracy"
llro nuu. Stuart ejected from the seminar. In fact, the Complaint does not mention
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llcivil rights violations against Viviano are not valid claims, and must be dismissed with
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Plaintiff's Civil Rishts Claims are barred because Viviano is not a State Actor
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state a claim under Section 1983, a plaintiff must allege: (1) a violation of a
llright secured by the Constitution and the laws of the United States; and (2)that the
lldeprivation was committed by a person acting under color of state law. See West v.
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llCir. 1987).
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this case, the Plaintiffs' allegations against Viviano consist of general issues
llffui.rtiff, have with the family court system. Other than Viviano's connection to the
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family court system as a practicing attorney, the Complaint fails to allege Viviano has
any relation to the government, or was working under color of state
law. This
does not
make Viviano a state actor because "aprivate attorney, while participating in the trial
a private state court action, is not acting under
of
v.
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Nat'l Bank,451 F. Supp. 522,531 (8.D. Pa. 1978) (emphasis added) (quoting Hansen
Ahl grimm, 520 F .2d 7 68, 7 7 0
(7
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8
th Cir.
97
5) (citations omitted)).
There are simply no facts alleged that support a claim Viviano is a state actor.
Without said allegations, Viviano cannot be liable for civil rights violations under
Sections 1983 and 1985. Accordingly, Plaintiffs claims against for civil rights
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violations against Viviano are invalid, and should be dismissed with prejudice.
VI. A.
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of the government for redress are generally immune from statutory liability for their
initially emerged in the antitrust context. E. R.R. Presidents Conf v. Noerr Motor
Freight, nc.,365U.5.127 (1961); Mine llorkers v. Pennington,38l U.S. 657 (1965).
Recognizing the
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"'rightto petition
includes access to courts, the Supreme Court extended the doctrine to provide immunity
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for the use of "'the channels and procedures' of state and federal courts to advocate
causes." Sosa, 437 F.3d at 929-30 (quoting Cal. Motor Transp. Co. v. Trucking
Unlimited,404 U.S. 508, 510-11 (1972)). "Under the Noerr-Pennington rule of statutory construction, we must construe
federal statutes so as to avoid burdening conduct that implicates the protections afforded by the Petition Clause unless the statute clearly provides otherwise." Sosa,437 F.3d at
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937. "lTlhe law of this circuit establishes that communications between private parties
are sufficiently within the protection of the Petition Clause to trigger the Noerr{00649573.DOCX}
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to ll"urrro*ia's anti-SLAPP statute and applies to protect defendants whose alleged llconduct invokes the right to petition the government for a redress of grievances. v. Foley & Lardner,553F. Supp. 2d 1178,1181 (S.D. Cal. 2008).) ll(Kearnel t BE&K Constr. Co. v. NLRB,536 U.S. 516,525 (2002), the Supreme Court ll is immunized:
lle..ruf courts have determined that lhe Noerr-Pennington docfrine is analogous
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docffine,
activi ty;'Id.
decide
(3) analyze
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preclude that burden on the llwhether the statutes at issue may be construed to llpetitioni,rg activity . Id. at530-33, 535-37
protected
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the llallegations against Viviano. However, the claims asserted against Viviano show
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O" the face of the Complaint, it is difficult to determine the basis for
base them on alleged actions taken by Viviano acting in an
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llunder llduring the litigation of the matter for which she was retained. This would clearly hinder
duties with her one-time role as Stuart's attorney. Counts 12-15 are based on llassociated feeations of civil rights violations perpetr ated against Stuart as part of the family llcourt system. According to the Complaint, the RICO allegations against Viviano are llrrur. on invoices sent for legal work performed for Stuart. tnis is the exact type of activity protected by Noerr-Pennington. Yiviano's ll activities would unquestionably be burdened if she could be held liable lln.titiorring RICO or for federal civil rights violations for advice given to her own clien,
llrelationship with Stuart. Count 3 alleges Viviano breached the professional
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system.
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S.cond, Plaintif have not alleged any facts against Viviano which fall outsid.
26 llprotected 27
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Viviano's
llconaurt
was directly linked to Stuart's divorce proceedings, just like all the
other
petitions
I I
llalleeations
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NO.3:13-CV-01 944-CAB-BLM
oconduct
incidental to the
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prosecution of the suit' is protected." Sosa,437 F.3d at.934. Hence, all the conduct
aileged against Viviano is protected.
4
5
Finally, Ninth Circuit authority has made clear that, under these circumstances,
the RICO statute cannot be construed to preclude the burden on this petitioning activity.
6 7
8
Id. at 933. Plaintiffs' vague allegations that Viviano was somehow indirectly involved
in certain misrepresentations changes nothing. Viviano's conduct while acting both
an attorney in the family court and as Stuart's attorney is protected.
as
9 10
11
1,2
For all of these reasons Plaintiffs' claims, which seek to impute protected
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To allege aLanhamAct violation, Plaintiffs must allege Viviano (1) "made false
or misleading statements as to his own product for another's]"; (2) "there is actual deception or at least a tendency to deceive a subst antialportion of the intended
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it is false." Decker v. GlenFed, Inc. Qn re GlenFed, Inc. Sec. Litig.), 42 F.3d 154I,1548 (9th Cir. Igg4). To allege aLarrttarnAct claim due to misleading
plaintif are "required to allege facts suggestingthat the marketplace
was,
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statements,
actually confused or misled, not just that the marketplace could have been confused or
26 27 28
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A.
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A claim for false advertising under the Lanham Act will not be sustained "[w]ithout a showing of direct competition." Jurin v. Google, [nc.,695 F. Supp. 2d
4
5
dismiss because there was no showing plaintiff and defendant were direct competitors,
stating: "fd]efendant nonetheless does not directly sell, produce, or otherwise compete
l
8
in the building materials market." To maintain a claim for false advertising under the
Lanham Act the parties have to be direct competitors.
rl
9 10
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under the Lanham act requires: "that the injury is 'competitive,' or harmful to the
plaintiff
ability to compete with the defendant." Jack Russell Terrier Networkv. Am.
a
fl
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Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir. 2005). In the Ninth Circuit
plaintiff
t2
13
must be in "acfi)al" or "direct" competition with the defendant and assert a competitive
v
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injury to establish standing. FLIR ^s. v. Sierra Media, nc.,903 F. Supp. 2d 1120, t4 II42 (D. Or. 2012).
15
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Count
tl
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l6 Defendants. However, the Complaint fails to allege Viviano is a direct competitor with
17 18
family court
t9
20
Complaint was filed, thus it could not have been in competition with Viviano at the time of the events alleged in the Complaint.
2t
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heightened pleading standard requiring the plaintiff to 'istate with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). "[T]he plaintiff must set forth
{00649s73.DOCX}
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misleading." Yourish v. CaL Amplifier,l9l F.3d 983, 993 (gthCir. 1999). To avoid
dismissal, Rule 9(b) requires plaintif to allege the "time, place and specific content the false representations as well as the identities of the parties to this representation."
of
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5 6
7
8
standard. The Complaint merely alleges misleading advertising against all Defendants.
(Complaint at flfl 260,265.). The complaint contains no further allegations specific to Viviano related to the LanharnAct claims. Unlike many other RICO Defendants, the Complaint fails to provide specific statements attributed to Viviano. Thus, the Complaint fails to explain how Viviano has been misleading or the exact the statements
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For these reasons, Plaintif Lanham Act claims are not properly pleaded against
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but again simply refers to several acts by "Defendants." To avoid dismissal, Rule 9(b)
l9 requires that Plaintif state the "time, place and specific content of the false
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Further, a"plaintiff must set forth what is false or misleading about a statement, and
why it is false." Decker v. GlenFed, Inc.,42F.3d I54I,1548 (9th Cir. 1994). 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
their allegations when suing more than one defendant... and inform each defendant
separately of the allegations surrounding his alleged participation in the fraud."' Swartz
v. KPMG
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that, in addition to particularity of time, place, and manner of eachacir of fraud, the role
{00649s73.DOCX}
15
of each defendant in each scheme be described in RICO actions alleging the predicate
acts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. 405
2 J
Dist.,940F.2d397,
(gthCir. 199I). The Complaint fails to identify the time, place or manner of any
4
5
act of fraud alleged against Viviano. The Complaint also fails to state Viviano's role in any of the alleged RICO schemes.
6 7
8
In Pelletier v. Zweifel,92l F.2d 1465, 1518-19 (1 1th Cir. I 991), the Eleventh
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. Id. aI 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
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t2 laborious task indee d."; see also Savage v. Council on Am.-Islamic Relations, Inc., 2008
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WL 2951281, at *14 (N.D. Cal. July 25, 2008) (RICO claim insufficient where plaintiff
set forth a "redund antnarrative of allegations and conclusions of law, but fmade] no
t4
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attempt to allege what facts are malerial to his claims under the RICO statute, or what facts are used to support what claims under particular subsections of RICO"); Fed.
Reserve Bank of S.F. v.
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18
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insufficient for failure to "identify exactly which acts are 'predicate acts' for RICO
liability").
Similarly here, Plaintiffs' 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
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paragraphs. Due to the length of the Complaint and its continual use of confusing acronyms, Viviano is required to "sift through the facts presented and decide for themselves which were material to the particular causefs] of action asserted" against
24
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if any, predicate acts are alleged against her. This format of Complaint
r6
violates
Rule 9(b).
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CASE NO.
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Plaintiffs' complete failure to properly plead the RICO claims against Viviano with the specificity required by Rule 9 requires dismissal with prejudice.
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IX.
CONCLUSION
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For the above reasons, Defendants Lori Clark Viviano and The Law Offices
of
Lori Clark Viviano request the Court dismiss Plaintiffs' Complaint with prejudice.
Respectfully submitted,
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By:
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s/ Charles R. Greb Ln CHARLES R. GREBING ANDREW A. SERVAIS Attornevs for Defendants LORI CTANI( VIVIANO ANd LAW OFFICES OF'LORI CLARK VIVIANO
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