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Case 3:13-cv-01944-CAB-BLM Document 166 Filed 05/22/14 Page 1 of 9

1 Colbern C. Stuart III


E-Mail: 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)
Email: RICOman1968@aol.com
6 Law Offices of Dean Browning Webb
515 E 39th St.
7 Vancouver, WA 98663-2240
Telephone: 503-629-2176
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Eric W. Ching, Esq. SBN 292357
9 5252 Balboa Arms Dr. Unit 132
San Diego, CA 92117
10 Phone: 510-449-1091
Facsimile: 619-231-9143
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Attorneys for Plaintiff California Coalition for Families and Children, PBC
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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16 CALIFORNIA COALITION FOR
FAMILIES AND CHILDREN, et al.,
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Plaintiffs,
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v.
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SAN DIEGO COUNTY BAR
20 ASSOCIATION, et al.,
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Case No. 3:13-cv-1944-CAB (BLM)


Judge: Hon. Cathy Ann Bencivengo
OBJECTIONS TO AND MOTION TO
STRIKE DECLARATION OF STEPHEN
LUCAS; OMNIBUS MEMORANUM;
REQUEST FOR JUDICIAL NOTICE

Defendants Date: June 6, 2014


Time: 2:00 p.m.
Courtroom: 4C
ORAL ARGUMENT REQUESTED
SUBJECT TO COURT APPROVAL
Complaint Filed: August 20, 2013

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Plainitffs hereby object to and move to strike the Declaration of Stephen D. Lucas

2 In Support of Defendants Omnibus Motion to Dismiss Plaintiffs First Amended


3 Complaint (Doc. No. 131-2) and portions of the Memorandum of Points and
4 Authorities In Support of Defendants Omnibus Motion to Dismiss Plaintiffs First
5 Amended Complaint (Doc. No. 131-1) as follows:
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I.

PROCEDURAL HISTORY

On March 28, 2014, Defendants filed an Omnibus Motion to Dismiss First

8 Amended Complaint (Doc. No. 131), Memorandum of Points and Authorities In


9 Support of Defendants Omnibus Motion to Dismiss First Amended Complaitn (Doc.
10 No. 131-1), Declaration of Stephen D. Lucas In Support of Omnibus Motion to
11 Dismiss First Amended Complaint (Doc. No. 131-2), and Request for Judicial Notice
12 and Exhibits in Support (Doc. No. 131-3).
On May 20, 2014, Plaintiffs filed an Emergency Motion to Take Early Discovery

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14 (Doc. No. 164). The Motion to Take Early Discovery identified portions of Mr.
15 Lucas Declaration which were evidentiary, testimonial, and highly prejudicial to
16 Plaintiffs as portions of the Omnibus could not stand without the testimony.
17 Plaintiffs requested leave to depose Mr. Lucas and call him to testify at hearing.
On May 21, 2014, the Court denied Plaintiffs Motion to Take Early Discovery

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19 (Doc. No. 165), stating:


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If any party has submitted material inappropriate at this stage for consideration,
the court will not consider it.

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These Objections and Motion to Strike follow on the Courts denial of leave.
II.

OBJECTIONS AND MOTION TO STRIKE LUCAS DECLARATION


AND OMNIBUS SECTION II:
The Court indicated that it would disregard aspects of the Lucas Declaration

27 which were objectionable. Plaintiffs respectfully submit these objections and


28 motion to strike to assist the Court in disregarding the Lucase testimony, object
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1 to any consideration of identified portions of the Declaration and Memo, move


2 that the identified portions be stricken from the Memo and Court records.
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Further, because the identified portions of the Lucas Declaration and Omnibus

4 Memo are testimonial, substantial, and so interwoven with the Omnibus Memo, the
5 entire Section II must be similarly "disregarded. See Motion to Take Early
6 Discovery, Doc. No. 164, Sec. II, incorporated herein in its entirety as if set forth in
7 full. Even if the a human mind could accomplish the cognitively-impossible feat of
8 un-ringing the bell, the disregarding such substantial portions of the Lucas
9 Declaration and Omnibus Memo resting upon it cripples entire sections of each
10 document. These sections of the Omnibus Motion must therefore be stricken entirely.
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This conclusion may be illustrated by examining versions of the Declaration

12 and Memo with the objectionable matter redacted. Attached hereto as exhibit A is
13 a copy of the Lucas Declaration marked in red to indicate portions of testimony that
14 are evidentiary and testimonial. Attached hereto as Exhibit A.1 is the same
15 declaration with the same portions redacted. Attached hereto as Exhibit B is a copy
16 of the Omnibus Memo marked to indicate portions of the memo that are dependent
17 upon the redacted sections of the Lucas Declaration, as well as the Omnibus
18 foundationless1 citations to other cases which Mr. Webb as appeared in, which
19 Defendants offer as citation of authority, but which are in fact improper attempts to
20 inject testimony directed at Mr. Webbs prior engagements. Attached hereto as
21 Exhibit B.1 is a copy of the Omnibus Memo with those same sections redacted.
The redacted Memo based on non-evidentiary assertions is nonsensical.

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23 Most of Section II, supporting the already-outrageous request for a dismissal


24 sanction, is crippled. This section of the Memo simply cannot stand without the
25 impermissible sections. On that basis alone, the Omnibus request for sanctions, all
26 joinders based
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Even as evidence the citations are without foundation as they must be introduced
28 via a request for judicial notice which would be and hereby is objected to. See
objections below.
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1 thereon, and any other relief related to an alleged failure to comply with Rule 8, is
2 hobbled. Plaintiffs therefore move to strike these sections, and request the Court
3 deny these Omnibus and all joinders based thereon on this additional ground.
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In addition, Plaintiffs hereby object to the Lucas Declaration and Omnibus

5 Memo as follows.
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Objection 1: Contravention of this Courts February 26, 2014 Order:

Mr. Lucas Declaration violates this Courts February 26, 2013 Order and the

8 Federal Rules of Civil Procedure. At hearing the Court instructed as follows (See
9 Doc. No. 125):
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THE COURT: MR. WEBB, DO YOU HAVE ANYTHING?

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MR. WEBB: YES, IF I MAY. IF IT PLEASE THE COURT,

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WITH REGARD TO PLAINTIFFS' CONSOLIDATED COMBINED

14 RESPONSE BRIEF WOULD THE SAME NUMBER MUCH PAGES, PAGE


15 LIMITATION APPLY?
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THE COURT: OH, DEAR GOD. YES, BUT YOUR RESPONSE TO

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THE OMNIBUS BRIEF CAN'T EXCEED 30 PAGES.

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MR. WEBB: THANK YOU, YOUR HONOR.

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THE COURT: I DON'T WANT A BUNCH OF ATTACHMENTS THAT

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SAY, GO SEE SOMETHING ELSE. I WANT A RESPONSE THAT'S 30

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MR. WEBB: YES, YOUR HONOR.

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THE COURT: OR LESS. WITH REGARD TO THE SUPPLEMENTAL

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BRIEFS, YOU'RE ALSO LIMITED TO 10 PAGES IN RESPONSE TO EACH

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SUPPLEMENTAL BRIEF THAT MIGHT BE FILED BY ANY OF THE

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DEFENDANTS. THIS IS STILL GOING BE A LOT OF PAPER.

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MR. GREBING: CHARLES GREBING. SORRY TO BE PICKY. I

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REPRESENT SHARON BLANCHET. SHE WAS THE SUBJECT OF A PRIOR


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ACTION BROUGHT BY PLAINTIFF AGAINST HER WHICH WAS

2 DISMISSED IN
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THE SUPERIOR COURT AFTER A HEARING. I HAVE PRESENTED IN MY

ORIGINAL MOTION TO THE COURT ON HER BEHALF THE

5 DOCUMENTS FOR
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THE COURT TO TAKE JUDICIAL NOTICE OF TO DEMONSTRATE THAT

7 FACT.
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IF I CAN'T GO BEYOND THE 10, I NEED SOME PAGES TO BE ABLE TO

GIVE YOU THOSE DOCUMENTS.

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THE COURT: THAT'S FINE. EXHIBITS THAT THE COURT IS BEING

11 ASKED TO TAKE JUDICIAL NOTICE OF ARE NOT PART OF YOUR 10-PAGE


12 LIMIT.
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MR. GREBING: THANK YOU.

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THE COURT: THE 10 PAGES IS FOR YOUR ARGUMENT. BUT

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WHAT I DON'T WANT TO SEE IS IF YOU GET TO YOUR 10 PAGES

16 AND THEN YOU START DOING DECLARATIONS TO GET STUFF IN, IT'S
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MR. GREBING: UNDERSTOOD. THANK YOU.

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THE COURT: -- THAT ARE REAL EXHIBITS. THANK YOU.

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(Doc. No. 125, pp 19-20)

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Mr. Lucas Declaration is not a real exhibit, its a proffer to give testimonya

22 Declaration to get stuff inin support of a motion that knows no evidence.


23 Similarly, the sections of the Omnibus which reference prior cases in which Mr.
24 Webb has appeared are not authority, they are irregular references to evidencean
25 attempt to get stuff in. Plaintiff hereby objects to these attempts to get stuff in as
26 volatile of the Courts instructions and moves to strike the same.
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Objection 2: Violation of Federal Rule of Civil Procedure 12(b)(6):

Mr. Lucass proffer to testify also violates the Rules of Evidence and Civil

3 Procedure governing matter that may be considered in a Rule 12(b)(6) motion. As a


4 general rule, a district court may not consider any material beyond the pleadings in
5 ruling on a Rule 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
6 Cir. 2001). Mr. Lucas submission of proffered testimony is matter outside of the
7 First Amended Complaint in support of their Rule 12(b)(6) motion. The court must
8 exclude all such matter, or convert the Omnibus Motion to a motion for summary
9 judgment under Rule 56. Rule 12(d) provides:
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(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS.

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If, on a motion under Rule 12(b)(6) or12(c), matters outside the pleadings are

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presented to and not excluded by the court, the motion must be treated as one for

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summary judgment under Rule 56. All parties must be given a reasonable

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opportunity to present all the material that is pertinent to the motion.

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Rule 12(d) requires that when a moving party introduces matter outside pleadings,

18 the Court convert the motion to a Rule 56 motion for summary judgment or exclude
19 the matter. Because Mr. Lucas misrepresentations, accusations, insults, and
20 condescending demeanor are inextricably woven throughout the Omnibus, it is not
21 possible to simply ignore the corresponding section of the Omnibus. See Motion to
22 Take Early Discovery, Doc. No. 164. As demonstrated above, an interlineated
23 version renders the Omnibus section nonsensical. See Exs. A, A.1, B, B.1 hereto.
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The Lucas declaration is entirely matter outside of the pleadings, and must either

25 be excluded by the Court, or the Omnibus must be converted to a Rule 56 Motion. In


26 the event the Motion is converted, Plaintiffs are entitled to take testimony from Mr.
27 Lucas. Fed.R.Civ. Pro. 26. Permitting any version of the Rule 8 sections of the
28 Memo and joinders to survive without cross examination would deprive Plaintiffs of
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1 their Fifth and Seventh Amendment rights to confrontation and due process. Should
2 the Court convert the motion, Plaintiffs hereby renew the Motion to Take Early
3 Discovery, or in the alternative request that the entire portion of the Omnibus Motion
4 based on Mr. Lucas testimony (Section II) and all joinders based thereon be denied.
5 III.
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OBJECTIONS TO TREATING THE LUCAS DECLARATION AND


OMNIBUS AS A REQUEST FOR JUDICIAL NOTICE
A.

Objection and Motion to Strike Matter Outside of the Pleadings Not


Capable of Judicial Recognition
Neither the Lucas Declaration nor RJN establish the foundation necessary to

admit any of the Omnibus Section II matter by judicial notice. Facts subject to
judicial notice are those which are either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid.
201(b). A court may not take judicial notice of a matter that is in dispute. Lee v. City
of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The party requesting judicial
notice has the burden of persuading the court that the particular fact is not reasonably
subject to dispute and is capable of immediate and accurate determination by resort to
a source whose accuracy cannot reasonably be questioned. In re Tyrone F. Conner
Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992); Rodriguez v. Unknown-Named
disciplinary Hearings Agent, 209CV02195FCDKJNPS, 2010 WL 1407772 (E.D.
Cal. Mar. 9, 2010).
1. ObjectionLacks Foundation
The Omnibus references opinions of other courts relating to allegations of
litigation behavior in other cases. Omnibus 131-1, 7:7-8:14. These are not judicially
noticeable facts, but controversial, scurrilous, unprofessional, and simply
disrespectful attempts to besmirch Mr. Webb. They are objected to and Plaintiffs
hereby move to strike the same.

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For the same reason, Mr. Lucas testimony and opinions in his Declaration are

2 not judicially noticeable. Plaintiffs hereby object and move to strike the same.
3 2. Objection--Relevance
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Documents or facts offered for admission by judicial notice must be relevant.

5 Mr. Webbs prior engagements and Mr. Lucas opinion testimony are irrelevant to
6 any issue. Defendants submit the matter in support of their attempt to fit into the
7 disregarded Nevijal case. Omnibus 131-1, 7:7-8:14. Nevijel is disregarded authority
8 not on point in many respects, but presently is also irrelevant because it relies on the
9 Nevijal plaintiffs prior litigation behavior, not his counsel. The Omnibus and Lucas
10 reference to Mr. Webbs prior litigation behavior are not only inaccurate, theyre
11 irrelevant to the present proceeding.
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Respectfully Submitted,

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15 DATED: May 22, 2014

By: /s/

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Dean Browning Webb

DEAN BROWNING WEBB


ATTORNEYS AND COUNSELORS AT
LAW FOR PLAINTIFF:
COALITION FOR FAMILIES and
CHILDREN, PBC, a Delaware Corporation

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21 DATED: May 22, 2014

By: /s/

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Colbern C. Stuart III

Colbern C. Stuart, III, President,


California Coalition for Families and
Children, PBC
in Pro Se

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CERTIFICATE OF SERVICE

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3 The undersigned hereby certifies that all counsel of record who are deemed to have
4 consented to electronic service are being served with a copy of this document via the
5 court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other
6 counsel of record will be served by facsimile transmission and/or first class mail this
7 22nd day of May, 2014.
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By: /s/

Colbern C. Stuart III

Colbern C. Stuart, III, President,


California Coalition for Families and
Children, PBC
in Pro Se

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