Professional Documents
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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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OBJ & MTN TO STRIKE LUCAS DECL/OMNIBUS
3:13-cv-1944 CAB BLM
Plainitffs hereby object to and move to strike the Declaration of Stephen D. Lucas
I.
PROCEDURAL HISTORY
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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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These Objections and Motion to Strike follow on the Courts denial of leave.
II.
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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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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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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OBJ & MTN TO STRIKE LUCAS DECL/OMNIBUS
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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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5 Memo as follows.
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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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21 PAGES.
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2 DISMISSED IN
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5 DOCUMENTS FOR
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7 FACT.
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16 AND THEN YOU START DOING DECLARATIONS TO GET STUFF IN, IT'S
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Mr. Lucas Declaration is not a real exhibit, its a proffer to give testimonya
Mr. Lucass proffer to testify also violates the Rules of Evidence and Civil
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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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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
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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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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OBJ & MTN TO STRIKE LUCAS DECL/OMNIBUS
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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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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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By: /s/
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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/
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-1OBJ & MTN TO STRIKE LUCAS DECL/OMNIBUS
3:13-cv-1944 CAB BLM