131-1 Omnibus Memo

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 1 of 22
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Stephen D. Lucas (74726)

slucas@lucashaverkamp.com
LUCAS & HAVERKAMP LAW FIRM
A Professional Corporation
Attorneys at Law
4350 Executive Drive, Suite 260
San Diego, California 92121
(858) 535-4000 Facsimile (858) 535-4001
Attorne_ys for Defendant SAN DIEGO
COUNTY BAR ASSOCIATION
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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CALIFORNIA COALITION FOR

FAMILIES AND CHILDREN, a Delaware
Q_ublic benefit com9ration; and
COLBERT C. STUART, an individual,
Plaintiffs,
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v.
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SAN DIEGO COUNTY BAR

ASSOCIATION, a California corporation;
et al.,
Defendants.
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III
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III
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III
Case No. 3:13-cv-01944-CAB-BLM

MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' OMNIBUS
MOTION TO DISMISS
PLAINTIFFS' FIRST AMENDED
COMPLAINT
rFed.R.Civ.P. 8(a), 8(e), 9(b), 12(b)(l),
l2(b)(6) and 41 (b)]
Date:
June 6, 2014
Time: 2:00 p.m.
Ctrm: Courtroom 4C
Judge: Cathy Ann Bencivengo
rNo ORAL ARGUMENT UNLESS
lIBQUESTED BY THE COURT]
Complaint filed: August 20, 2013
3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
TABLE OF CONTENTS
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TABLE OF AUTHORITIES ...................................................................................... ii

I
II
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INTRODUCTION AND SUMMARY OF MOTION ....................................... 1

THE FAC SHOULD BE DISMISSED WITH PREJUDICE
PURSUANT TO RULE 41(b) FOR FAILURE TO
COMPLY WITH FRCP 8 AND 91 ................................................................... 2
A. Failure To Comply With Rule 8(a) and 8)e) .............................................. 2
B. Violation Of The Court Order .................................................................... 5
C. Violation Of Rules Warrant Dismissal Under Rule 41(b) ....................... 6
D. Leave To Amend Should Be Denied ........................................................... 7
III PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTE

OF LIMITATIONS ............................................................................................. 9
13
IV THE FAC SHOULD BE DISMISSED FOR LACK OF

JURISDICTION UNDER FRCP 12(b)(l) AND/OR
ROOKER-FELDMAN .................................................................................... 11
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PLAINTIFFS' CLAIMS ARE BARRED BY THE

ELEVENTH AMENDMENT ......................................................................... 12
VI THE FAC SHOULD BE DISMISSED FOR FAILURE TO

STATE A CLAIM PURSUANT TO 12(b)(6) ................................................
A. Plaintiffs Fail To State Claims Under 42 U.S.C. 1983
Against The SDCBA And Numerous Others Because
They Are Not State Actors .......................................................................
B. Plaintiffs Fail To State Claims For Violations Of
15 U.S.C. 1125 (The Lanham Act) ...........................................................
C. Plaintiffs Fail To State RICO Claims ......................................................
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13
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15
CONCLUSION ......................................................................................................... 16
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i
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
TABLE OF AUTHORITIES
CASES
Action Apartment Assoc. v. Santa Monica Rent Control

509 F .3d 1020 (9th Cir. 2007) .............................................................................. 9
4
5
8
9
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................... 12

Bell At/. Corp. v. Twombley, 550 U.S. 54r (2007) ................................... 12, 13, 14, 16
Cafasso, US. ex rel. v. General Dynamics C4 Systems, Inc.
637 F.3d 1047 (9th Cir. 2011) .............................................................................. 7
Carmona v. Carmona, 603 F.3d 1041 (9th Cir. 2010) ................................................ 11
10
11
Chol/a Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004) ............................... 13
12
District a/Columbia Court ofAppeals v. Feldman, 460 U.S. 462 ............................ 11
13
Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ................. 11
14
15
Edwards v. Marin Park, Inc. 356 F.3d 1058 (9th Cir. 2004) ..................................... 15
16
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ...................... 11
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18
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Greater L.A. Council on Deafness, Inc. v. Zolin

812 F.2d 1103 ((9th Cir. 1987)
Jurin v. Google, Inc., 695 F.Supp.2d 1117 (E.D. Cal. 2010) .................................... 15
20
21
Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343 ...................................... 8
23
Krainski v. State ofNevada ex.rel. Bd. ofRegents

616 F.3d 963 (9th Cir. 2010) ............................................................................. 14
24
Lantzy v. Centex Homes, 31Cal.4th363 (2003) ........................................................ 10
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Lee v. City ofLos Angeles, 250 F.3d 668 (9th Cir. 2001) .......................................... 13
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McDade v. West, 223 F.3d 1135 (9th Cir. 2000) ....................................................... 13
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McDougal v. County ofImperial, 942 F.2d 668 ........................................................... 9

ii
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3
4
McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ......................................................... 5

Mendoza v. Golden West Savings Assoc. Services Co.
2009 WL 2050486 ................................................................................................. 3
Metzler Inv. GMBH v. Corinthian Calls., Inc., 540 F .3d 1049 (9th Cir. 2008) ........ 6, 7
Moss v. US. Secret Service, 572 F.3d 962 (9th Cir. 2009) ........................................ 14
Nevijel v. North Coast Life Ins. Co., 651F.2d671 (9th Cir. 1981) ......................... 2, 7
Pennhurst v. Halderman, 465 U.S. 89 (1984) ............................................................ 12
Presidio Group, LLCv. GMAC Mortg. LLC, 2008 WL 1595675 ................................ 8
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Presidio Group, LLC v. Juniper Lakes Development, LLC,

2010 WL 1331138 ................................................................................................ 8
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Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183 (9th Cir. 1996) ...................... 8
14
Schucker v. Rockwood, 846 F.2d 1202 (9th Cir. 1988) ............................................. 14
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Simmons v. Sacramento Superior Court, 318. F.3d 1156 (9th Cir. 2003) ................. 14
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Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997)
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Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920 ...................... 8
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! ...............
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Uribe v. Countrywide Financial, 2009 WL 1953413 ................................................... 3
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Vess v. Ciba-Geigy Corp., 317 F.3d 1097 (9th Cir. 2003) ........................................ 16
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VonSaher v. Norton Simon Museum ofArt at Pasadena

592 F.2d 954 (9th Cir. 2010) ................................................................................ 9
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West v. Atkins, 487 U.S. 42 (1988) ............................................................................ 13
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World Thrust Films, Inc. v. International Family Entertainment, Inc.

41 F.3d 1454 (11th Cir. 1995) .............................................................................. 7
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Yourish v. California Amplifier, 191F.3d983 (9th Cir. 1999) ..................................... 7

iii
STATUTES
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California Government Code, 6254.21 ....................................................................... 6

California Penal Code
207 ....................................................................................................................... 4
602 ................................................................................................................... 10
802 .................................................................................................................. 10
Federal Rules of Civil Procedure
Rule 8(a) ............................................................................................... 1, 2, 5, 15
Rule 8(e) ........................................................................................... 1, 2, 5, 7, 15
Rule 9(b) .............................................................................................. 2, 5, 7, 15
Rule 12(b)(1) ................................................................................................ 1, 11
Rule 12(b)(6) .......................................................................... 1, 9, 12, 13, 15, 16
Rule41(b) .......................................................................................... 1,2,5,6,7
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15
United States Code

1125 ................................................................................................................ 14
1983 ...................................................................................................... 9, 13, 14
1985 ................................................................................................................... 9
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Constitution, Eleventh Amendment ........................................................................... 12
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INTRODUCTION AND SUMMARY OF MOTION
Pursuant to the court's order [Doc. 107], this omnibus motion is brought on
behalf of all defendants in order to ease the burden on the court and parties imposed by
plaintiffs' prolixity.
Amended Complaint ["F AC" Doc. 90] that was filed after the court granted prior
motions to dismiss for failure to comply with Federal Rule of Civil Procedure 81 and
issued a thorough Order allowing plaintiffs leave to amend with instructions that
plaintiff, a former member of the California State Bar, comply with Rule 8 and
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coherently identify his claims "without unnecessary verbiage, argument, and rhetoric."
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[Doc. 88.] The FAC is even worse than the original complaint. It is 76 pages longer,
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adds new defendants and new claims, and is unreasonably convoluted, confusing, and
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incomprehensible.
This motion seeks dismissal with prejudice of plaintiffs' First
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The FAC should be dismissed with prejudice on the following grounds:
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1) pursuant to Rule 41 (b) for failure to comply with Rules 9(b ), 8(a), 8(e) and
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for violations of the court's order and other rules;

2) pursuant to Rule 12(b)(l) for lack of jurisdiction under the Eleventh
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Amendment and the Rooker/Feldman doctrine;

3) pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be
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granted.
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III
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III
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III
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III
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III
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III
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All references to Rules are to the Federal Rules of Civil Procedure unless otherwise
indicated.
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II
THE FAC SHOULD BE DISMISSED WITH PREJUDICE PURSUANT
TO RULE 41(b) FOR FAILURE TO COMPLY WITH FRCP 8 AND 9
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A complaint that fails to comply with Rules 8(a) and 8(e) may be dismissed with
prejudice pursuant to Rule 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,
673-674 (9th Cir. 1981). Rule 41(b) provides that defendants may move for dismissal
due to plaintiffs' failure to comply with the rules or any order of the court. Plaintiffs
have failed to comply with the rules governing pleadings, as well as other rules, and
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have failed to comply with this court's Order filed December 23, 2013 [Doc. 88.]
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dismissal with prejudice is justified under the circumstances here.

A.
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Failure To Comply With Rule 8(a) and 8(e)
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Rule 8(a) states a pleading "shall" contain a "short and plain statement of
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the grounds on which the court's jurisdiction depends" ... and a "short and plain
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statement of the claim showing that the pleader is entitled to relief. ... " Rule 8(e)
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states a pleading shall be simple, concise, and direct."

The FAC totally fails to comply with these rules. It is 251 pages long with
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over 1250 pages of attachments. [Doc. 90, 90-1 to 90-13.]
The attachments appear to
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be exhibits but are not readily identifiable, indexed, marked, or organized. (Deel.
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Lucas ~~2, 3.)
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The original complaint identified three plaintiffs, one of which, Lexevia, is
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a suspended corporation and appeared without counsel. Accordingly, Lexevia's claims
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were dismissed. [Doc. 88 at p. 5.]
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Colbern C. Stuart III, appearing pro se, and California Coalition For Families and
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Children, a Delaware Public Benefit Corporation.
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III
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III
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III
The FAC now identifies only two plaintiffs,
California Coalition is now
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represented by Dean Browning Webb, pro hac vice. 2 Local Counsel, Eric Ching, has
moved to withdraw as counsel in this case, which would again leave California
Coalition without counsel. [Doc. 97, 98.]
The F AC identifies over 58 defendants including the San Diego County
Bar Association, numerous judges, the San Diego Superior Court, the City and the
County of San Diego, other officials, officers, the Sheriff, and numerous individuals
and firms related to the family law system. [Doc. 90 at pp. 2-14.] The FAC caption
page identifies only four claims, but it actually contains over 130 "titled" claims and
many of those contain multiple sub-claims alleged shotgun style in one long sentence
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within the text.
For example, Claim 2.3 is titled "wrongful inducement to breach
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contract, covenant of good faith and fair dealing against Stuart Assault Coordinator
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defendants." [FAC Doc. 90 at p. 66.]
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by Stuart for wrongful inducement to breach contract, breach of covenant of good faith
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and fair dealing, wrongful interference with prospective contractual relations, and
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defamation against all Stuart Assault Coordinator Defendants under California State
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law and 42 U.S.C. 1983 and Cal. Const. art.I, 26." [Id. at
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claims has its own set of elements and cannot be combined in one claim under Rule 8.
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There is no good way to respond to this multi-theory combination-claim since it
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incorporates numerous separate and distinct theories against numerous defendants.
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United States
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(7th Cir. 2003) [dismissal with prejudice of 155-page "sprawling" complaint was
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proper so the court and parties "need not try to fish a gold coin from a bucket of mud"].
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This is on point here: each defendant is forced to comb through pages of verbose,
ex.rel.
Garst v.
But the first paragraph states, "This is a Claim
Lockheed-Martin Corp.,
~319.]
Each of these
328 F.3d 374,
378
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Defense counsel located orders by California District Courts denying and reversing
attorney Webb's pro hac vice appointments, but was unable to locate a database that
would show whether his appointment in this case is improper because, for example, he
has applied pro hac vice in other cases within the past year. (See Mendoza v. Golden
West Savings Assoc. Services Co., 2009 WL 2050486 and Uribe v. Countrywide
Financial, 2009 WL 1953413.)
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convoluted material to try to find any facts supporting any claim against them.
Multi-theory combination claims exist throughout the FAC and make it impossible for
the court to analyze and for defendants to respond. (See FAC at
716, 761.)
~~349,
541, 545,
The list of "Stuart Assault Coordinator Defendants," named in numerous
claims, is buried somewhere among numerous acronyms and disorganized lists
scattered throughout the FAC.
wrongdoers they allegedly belong to, there are allegations that "all defendants"
conspired or belong to vaguely defined criminal enterprises, such that it is literally
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impossible to determine who is being sued for what. [See, e.g., FAC Doc. 90 at p. 125
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Count 6; p. 147 Count 9; p. 157 Count 10; p. 172 Count 12, and p. 175 Count 13.]
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Even if a defendant can locate what group of
Many claims fail to provide clear notice as to who is being sued. For
example, Racketeering Claim 3.2 provides:
"Racketeering Claim For Relief 3.2
Kidnapping
Cal.Pen. C. 207(a)
Against City Attorney Defendants, Groch, Gore"
"~1049.
This is a claim for kidnapping ... against each City

Attorney defendant, SDCBA, SDCBA Doe 2, Chubb, Chubb
Doe 1, Groch, and Gore based upon their activities in the
MALICIOUS
PROSECUTION,
PROSECUTORIAL
six FALSE
MISCONDUCT,
and each of the
IMPRISONMENTS."
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The SDCBA is not named in the title, but is identified in the paragraph
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beneath the title, which appears to be a tactic to force all 58 defendants to read through
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every page and line of this manifesto to try to figure out who is suing whom for what.
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Also, it is unclear who is claiming damages. Many of the claims state they
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are brought "by Stuart" and appear to stem from one of his individual claims related to
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his arrests or divorce or his personal problems with Dr. Doyne, but then the claim
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concludes with the allegation that "plaintiffs" were injured. [F AC Doc. 90 at Claims 1.1
to 1.12.] Such plural damage allegations are especially defective here because the FAC
still contains allegations about Lexevia, even though it is no longer in the caption,
making it unclear whether it is still attempting to recover. [FAC Doc. 90 at if~lOl, 102.]
To the extent these plural damage claims are intended to include the
California Coalition, they must be dismissed because that corporation was not formed
until the day before the complaint was filed and therefore did not exist at the time these
events occurred. (See Request for Judicial Notice Ex. 3.)
In addition, as discussed more fully below, Rule 9(b) requires many of the
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claims alleged here to be pled with heightened particularity because they are based
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upon fraud.
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The FAC so utterly defies the law set forth in Rules 8 and 9 that a
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dismissal with prejudice is proper, especially given this is not a case where a layperson
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plaintiff might be unfairly prejudiced by poor lawyering out of his control. Plaintiff
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was a lawyer, he represents himself pro se, he is the president and CEO of the
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corporation he formed the day before filing suit, he knows the rules and chose to violate
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them. A dismissal with prejudice is proper here. McHenry v. Renne, 84 F.3d 1172,
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1177 (9th Cir. 1996).
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B.
Violation Of The Court Order
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Rule 41 (b) grants discretion to dismiss the FAC for failure by the plaintiff
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to comply with the rules or any order of the court. Plaintiffs' original complaint
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violated Rule 8 and was dismissed on that ground with clear instructions to comply
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with Rule 8 and state claims "without unnecessary verbiage, argument, and rhetoric."
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[Court Order, Doc. 88 at p. 9.]
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Plaintiffs' FAC is even worse than the original. It is pages longer, adds
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new defendants, and contains a whole new set of claims for "obstruction of justice"
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against those who demanded plaintiffs remove the publication of judges' personal
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addresses, and contains facts indicating plaintiff failed to comply with the demand to
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remove the information after receiving a proper demand to do so pursuant to Cal. Gov't
Code section 6254.21. [FAC Doc. 90 at pp. 101-110.]
The FAC so totally fails to comply with the court's Order that it reflects a
measure of disrespect for the court and the law. The court has discretion to dismiss
with prejudice under these circumstances. Metzler Inv. GMBH v. Corinthian Coils.,
Inc., 540 F.3d 1049. 1072 (9th Cir. 2008)

C.
Violations Of Rules Warrant Dismissal Under Rule 41(B).
In addition to the above- described violations, Stuart has violated other
rules since day one. The original complaint was filed on behalf of corporations with no
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attorney as required by law, and Lexevia was not even a valid corporation with the
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capacity to sue. [Doc. No. 1 at 1; Doc. 88 at p. 5.]
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The title page of the original complaint indicated Dean Browning Webb as
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attorney for the corporations ''pro hac vice pending." [Doc. 1 at p. 1.] However, the
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Pro Hae Vice Application for Dean Browning Webb was not submitted to the court
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until January 2014, over five months after the representation it was "pending."
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[Doc. 94.]
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The original complaint published the addresses of judges and when
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plaintiffs were told to remove this information from the internet pursuant to
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Government Code section 6254.21, plaintiff alleges, "as a courtesy" he complied.
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[FAC, Doc. 90 at i!i!525, 538.]
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law. He then sued the parties who requested removal of this information. [FAC p. 101,
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Count 4.]
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attachments to the FAC) states it is a violation of the Southern District General Orders
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to publish home addresses.
He says this as if he had a choice to comply with the
The demand letter from court counsel Nesthus (which is among the
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Plaintiffs next filed a motion for preliminary injunction on the same day of
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the court hearing for a case management conference [Doc. 102.] that was rejected for
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violation of the rules requiring the motion to be filed within three days of receipt of the
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III
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hearing date and noting it was not signed by counsel on behalf of the corporate
plaintiff. [Doc. 106.]
A dismissal for violations under Rule 41 (b) includes violations of local
rules, oral orders, and minute orders. Yourish v. California Amplifier, 191 F.3d 983,
987 (9th Cir. 1999); World Thrust Films, Inc. v. International Family Entertainment,
Inc., 41 F.3d 1454, 1456 (I Ith Cir. 1995).
D.
Leave To Amend Should Be Denied.
In addition to the above-described grounds to dismiss with prejudice, the
court has discretion to dismiss for Rule 8 and 9 pleading failures without leave to
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amend, and that discretion is particularly broad where, as here, plaintiff has previously
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amended the complaint. Metzler Inv. GMBH v. Corinthian Colts., Inc., 540 F.3d 1049.
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1072 (9th Cir. 2008). The denial of leave to amend is proper where there is undue
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prejudice to defendants, bad faith by the plaintiffs, and futility. Cafasso, US. ex rel. v.
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General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011).
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On point here, in Nevijel v. North Coast Life Ins. Co., 651 F.2d 671
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(9th Cir. 1981) the court also looked at the plaintiffs history of alleging conspiracies
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and repeated failures to comply with the Rules of Civil Procedure. (Id. at pp. 674-675.)
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The plaintiffs history in other cases supported the conclusion that dismissal with
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prejudice was not an abuse of discretion. (Id.)
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Applying this law, the court would be well within its discretion in denying
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leave to amend. Plaintiffs' prior amendment defiantly violated the court's Order and
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Rule 8 by adding parties, claims, and pages of verbose argument and rhetoric, which
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indicates bad faith.
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inordinate amount of time and resources needed to review the FAC and respond.
The prejudice to the court and defendants is obvious in the
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Stuart and his counsel have engaged in a pattern of violating the Rules
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indicative of an unwillingness to comply such that another request to comply would be
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futile. In addition to the violations thus far in this case, attorney Dean Browning Webb
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has been engaged in similar conduct for over 15 years despite being sanctioned by the
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Ninth Circuit Court of Appeals for it.
74 F.3d 183 (9th Cir. 1996) [sanctions against Dean Browning Webb affirmed for bad
faith based on number and length of pleadings, timing of the filings, and substance of
claims, converting a simple debt collection into a full-fledged assault].
Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920, stating: "Many
courts in this district and elsewhere have consistently and repeatedly warned Webb that
his litigation practices are improper and problematic." The Stephens court cites several
cases involving Webb's history of defective pleadings and prior warning he may be
personally liable for "unreasonably and vexatiously multiplying proceedings." (See
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Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343; Presidio Group, LLC v.
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Juniper Lakes Development, LLC, 2010 WL 1331138.
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limerick about him. Presidio Group, LLC v. GMAC Mortg. LLC, 2008 WL 2595675.
See also,
One judge even wrote a
This case is proof that Webb has ignored repeated warnings which shows
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Salstrom v. Citicorp Credit Services, Inc.,
another chance to amend would be futile.

Besides, as shown below, none of the claims passes muster under
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Rule 12(b)(6).
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III
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III
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III
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III
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III
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III
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III
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III
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III
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III
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III
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III
8
III
PLAINTIFFS' CLAIMS ARE BARRED
BY THE STATUTE OF LIMITATIONS
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A motion to dismiss under FRCP 12(b)(6) can be granted where the facts and
dates in the complaint show the claims are barred by the statute of limitations.
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969
(9th Cir. 2010)
Stuart admits a "central subject of this litigation" occurred on April 15, 2010 at
the San Diego County Bar Association seminar where he was allegedly forcibly
~~109,
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removed. [FAC Doc. 90 at
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claims brought under 42 U.S.C. 1983 and 1985, all of which are barred by the
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two-year statute of limitations. Action Apartment Assoc. v. Santa Monica Rent Control,
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509 F.3d 1020, 1026 (9th Cir. 2007) [1983 claims borrow the forum State's statute of
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limitations for personal injury claims and in California that is two years]; McDougal v.
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County of Imperial, 942 F.2d 668, 673-674 [1985 and 1983 governed by the same
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statute of limitations]. The statute begins to run when plaintiff knows or has reason to
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know of the injury. (Id.)
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121-133.] This event is the basis for numerous
The complaint was filed August 20, 2013, more than three years after the
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seminar.
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conclusory allegations of equitable tolling based on duress supposedly due to threats by
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SDCBA's insurance carrier, Chubb. Stuart alleges that after the seminar, he made a
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claim for damages by letter to the SDCBA and in response Chubb threatened that if he
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moved forward with a claim, Chubb and the SDCBA would prosecute him for
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committing a criminal trespass at the seminar. He alleges such a criminal trespass
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claim would be false, but that as a result of this threat, he was intimidated and
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frightened by what he considered to be a threat to his personal security. [F AC Doc. 90
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at ~~353-368.] He alleges this duress and fear caused him to cease pursuing his claim
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and operates to toll the running of the statute of limitations. [Id. at ~466.]
Stuart's amended complaint tries to avoid the statute of limitations with
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The court must reject Stuart's equitable tolling claim as follows.
First, assuming arguendo a threat to prosecute Stuart for a trespass at the
seminar, the statute of limitations on that trespass charge expired one year after the date
of the event pursuant to California Penal Code section 802(a). (See Cal. Pen. Code
602, 602.1, trespass or interference with business establishment are misdemeanors
triggering the one-year statute under Pen. Code 802(a).)
limitations on the threatened charge expired April 15, 2011, the alleged "tolling event"
concluded, yet he still did not file the instant complaint for over two years after that -
long after any threat of a trespass charge was gone.
Because the statute of
Equitable tolling only suspends
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the running of the limitations period while the tolling event is occurring and the statute
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begins to run again when the tolling event is concluded. Lantzy v. Centex Homes,
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31Cal.4th363, 370-371 (2003).
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Equitable tolling is a judge-made doctrine that operates to suspend the statute of
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limitations as necessary to ensure fundamental practicality and fairness. Lantzy,
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31 Cal.4th at 370. It will be applied in "carefully considered situations to prevent
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unjust technical forfeiture of causes of action, where the defendant would suffer no
17
prejudice." (Id.) Also, as an equitable principle, the court must balance the equities and
18
consider the important public policy expressed by the statutes of limitations. (Id. at
19
p. 371.)
20
Applying this law to the facts here, the equities do not tip in Stuart's favor. The
21
SDCBA seminar was almost four years ago. Memories fade, making it more difficult
22
to defend against old claims, and in this case Stuart is trying to sue dozens of people
23
related to this event, many of whom are alleged to be conspirators of some kind making
24
it even more difficult to respond.
25
Thus, in addition to all the other grounds supporting a dismissal of plaintiffs'
26
case, the fact the majority of claims are plainly time barred on the face of the complaint
27
further justifies a dismissal with prejudice.
28
III
10
3: 13-cv-1944-CAB-BLM
IV
THE FAC SHOULD BE DISMISSED FOR LACK OF
JURISDICTION UNDER FRCP 12(b)(l) AND/OR ROOKER-FELDMA~
Although the FAC contains incomprehensible ramblings making it impossible to
assert focused pleading attacks, Stuart alleges at several points that he has been the
victim of illegal court orders issued by the San Diego Superior Court as well as arrests
and incarcerations by San Diego authorities that were all unlawful. [F AC Doc. 90 at
~~373-374,
de facto appeals from state court judgments and orders. Federal district courts do not
10
have jurisdiction to hear de facto appeals from state court judgments or to review
11
alleged errors in state court decisions. Dist. of Columbia Court of Appeals v. Feldman,
12
460 U.S. 462, 476; Carmona v. Carmona, 603 F.3d 1041, 1050-1051 (9th Cir. 2010).
13
Known as the Rooker-Feldman doctrine, a federal district court is precluded from
14
hearing "cases brought by state-court losers complaining of injuries caused by state-
15
court judgments .... " Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
16
284 (2005), and this rule applies not only to final state court orders and judgments but
17
to interlocutory orders and non-final state court judgments as well. Doe & Assoc. Law
18
Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).
392, 416, 462-464, 821, 837-838.]
These claims are nothing more than
19
Stuart alleges he is the victim of the unlawful orders and judgments of the state
20
court and that numerous (or possibly all) defendants including the SDCBA are
21
somehow part of this unlawful court system. [F AC Doc. 90 at
22
p. 14 7.] Putting aside the implausible nature of the allegations that the SDCBA and
23
many other private individual/entity defendants are all conspirators against Stuart in the
24
state court orders and actions - some of which occurred before the SDCBA seminar
25
took place, each claim related to the unlawful orders and judgments against Stuart
26
should be dismissed for lack of jurisdiction. (Request for Judicial Notice, Exhs. 1, 2.)
27
Ill
28
Ill
~462
and Count 9 at
11
3: 13-cv-1944-CAB-BLM
PLAINTIFFS' CLAIMS ARE BARRED BY THE ELEVENTH AMENDMENT
The Eleventh Amendment bars suit against a state or its agencies, such as the
superior court, for all types of relief, absent unequivocal consent by the state.
Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Greater L.A. Council on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 n.10 (9th Cir. 1987) [Eleventh
Amendment bars suit against California State Superior Court for damages, injunctive
and declaratory relief].
As stated, many of Stuart's claims allege unlawful orders by the state court for
10
which he alleges many other private party defendants are somehow jointly liable. [See
11
e.g., FAC Doc 90 at pp. 14-15, ,-r,-r462-464.] All these claims are barred by the Eleventh
12
Amendment.
13
VI
14
THE FAC SHOULD BE DISMISSED FOR
15
FAILURE TO STATE A CLAIM PURSUANT TO 12(b)(6)
16
The court should dismiss each claim alleged in the FAC under FRCP 12(b)( 6) for
17
failure to state a claim, especially given the more recent 12(b)(6) pleading standards
18
authorized by the United States Supreme Court allowing district courts to dismiss
19
claims earlier by analyzing whether the plaintiff has pled a claim that is plausible, and
20
in making that determination the court is to look at the context of the case and draw on
21
the judge's judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S. 662
22
(2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007).
23
of a claim's elements supported by mere conclusory statements do not suffice. Iqbal,
24
556 U.S. at 676. For example, as in this case, conclusory statements that defendants
25
conspired to violated plaintiffs rights are not sufficient. Twombly, 550 U.S. at 557.
Further, threadbare recitals
26
In ruling on a Rule 12(b)( 6) motion, the court may consider material not attached
27
to the complaint if their authenticity is not contested, the plaintiffs' complaint
28
necessarily relies on them, and may consider matters of public record. Lee v. City of
12
3: l 3-cv-1944-CAB-BLM
Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2001). Accordingly, filed here in the
Request For Judicial Notice are records showing there was an arrest warrant issued for
Stuart before the SDCBA seminar.
Because the FAC is too difficult to understand as far as exactly who is asserting
what claim against which defendant, the following may not cover every 12(b)(6) defect.
These are essentially those that jumped out.
A.
Plaintiffs Fail To State Claims Under 42 U.S.C. 1983 Against The
SDCBA And Numerous Others Because They Are Not State Actor~.
Almost all plaintiffs' claims are alleged violations of their civil rights
10
actionable under 42 U.S.C. 1983 (either directly alleged or by incorporation of all
11
prior allegations). [F AC Doc. 90 at Counts 1-8, 11-15.] Section 1983 does not create a
12
cause of action, but is a vehicle by which plaintiffs can bring federal constitutional
13
challenges to actions by state and local officials. Challa Ready Mix, Inc. v. Civish,
14
382 F.3d 969, 978 (9th Cir. 2004). The purpose of section 1983 is to deter state actors
15
from using the badge of their authority to deprive individuals of the federally
16
guaranteed rights. McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000).
17
An essential element of plaintiffs' claim missing here is a set of plausible
18
facts, and not mere "boiler-plate-conclusory statements" showing the SDCBA and
19
other defendants were state or local officials acting under color of state law or had
20
conspired with state officials to violate plaintiffs' rights. West v. Atkins, 487 U.S. 42,
21
48 (1988); Twombly, 550 U.S. at 557.

Plaintiffs allege the SDBCA is a California corporation. [FAC Doc. 90
22
23
at ,-rs.]
24
entities. [FAC Doc. 90 at ilil36-62.]
25
against all defendants under 42 U.S. 1983.
26
showing an agreement between all these private parties and any state actor acting under
27
color of law. Count 3 for "Malicious Prosecution, Obstruction of Justice" on page 70,
28
simply lumps together City Attorney defendants with the SDCBA and numerous
Likewise, many other defendants are alleged to be private individuals or

The FAC purports to state numerous claims
However, there are no specific facts
13
private party defendants for deprivation of rights "under color of law" with no facts
establishing the necessary elements of an agreement or conspiracy.
Although it is nearly impossible to find facts anywhere in this massive
pleading, the occasional conclusory phrase can be found to the effect that defendants all
conspired with each other. Such conclusory allegations are insufficient to state a claim.
Twombly, 550 U.S. at 557; Simmons v. Sacramento Superior Court, 318 F.3d 1156,
1161 (9th Cir. 2003) [conclusory allegations that private attorney conspired with state
officer insufficient to support Section 1983 claim]; Schucker v. Rockwood, 846 F.2d
1202,1205 (9th Cir. 1988) [conclusory allegations of conspiracy between judge and law
10
firm insufficient for Section 1983 claim]; see also, Moss v. US. Secret Service,
11
572 F.3d 962, 970 (9th Cir. 2009) [conclusory allegations that Secret Service removed
12
protesters with the intent to suppress freedom of expression is insufficient]; Krainski v.
13
State ofNevada ex.rel. Bd ofRegents, 616 F.3d 963, 969 (9th Cir. 2010) [allegation that
14
police officers knew or should have known statements about plaintiff leading to her
15
arrest were false was too conclusory].
16
Applying the plausible test, and drawing upon the court's judicial
17
experience and common sense, the court can determine plaintiffs cannot state claims
18
under 42 U.S.C. section 1983 against all defendants.
19
B.
Plaintiffs Fail To State Claims For Violations
20
Of 15 U.S.C. 1125 (The Lanham Act).
21
Count 13 of the FAC is against all defendants for "false description of
22
services" under the Lanham Act codified at 15 U.S.C. 1125.
23
The elements of a Lanham Act violation are: 1) a false or misleading
24
statement by defendant about his or another's product, 2) actual deception or a
25
tendency to deceive a substantial segment of the intended audience, 3) the deception is
26
material in that it is likely to influence purchasing decisions, 4) the advertised goods
27
travel in interstate commerce, and 5) a likelihood of injury to plaintiff in lost sales
28
III
14
or good will. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139
(9th Cir. 1997).
This is essentially a false advertising claim against every defendant in
which plaintiffs must show they actually and directly compete with the defendants.
Jurin v. Google, Inc., 695 F.Supp.2d 1117, 1122 (E.D. Cal.2010) [12(b)(6) motion
granted for failure to show direct competition].
This claim is also subject to the heightened pleading standard for fraud
under FRCP 9(b); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066
(9th Cir. 2004) [plaintiff must allege the time, place and specific content of false
10
representations].
11
The fatal flaw here is plaintiffs' allegation at FAC paragraph 912 that
12
''plaintiffs compete with defendants for provision of legal services. ... " As a matter
13
of public record, Stuart has been disbarred or suspended from practicing law in every
14
state where he was admitted. (See Request for Judicial Notice, Exs. 4, 5, 6, 7, 8, 9.),
15
Lexevia is no longer a party and is a suspended corporation, and California Coalition is
16
not a law firm or otherwise licensed to practice law and did not even exist until one day
17
before the complaint was filed. (Request for Judicial Notice, Exs. 3, 10.)
Accordingly, Count 15 must be dismissed with prejudice under Rules 8,
18
19
9, and 12(b)(6).
20
c.
Plaintiffs Fail To State RICO Claims.
21
There are about 31 RICO claims alleged against the SDCBA and over
22
57 other defendants, including allegations of violations of "tens of thousands" of laws
23
including "Enticement into slavery," "Sale into involuntary servitude," and "Service on
24
vessels in slave trade." [FAC Doc. 90 at pp. 208-209.]
25
In addition to the gross violation of FRCP 8 set forth above, there is a total
26
lack of specificity as to each defendant and the predicate acts as required by law. For
27
RICO claims based on fraud against multiple defendants, the requirements of
28
FRCP 9(b) must be met. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066
15
(9th Cir. 2004). The FAC alleges RICO claims against multiple defendants based upon
fraud. [FAC Doc. 90 at p. 208.]
the standards of pleading under 9(b ). Vess v. Ciba-Geigy Corp., 317 F .3d 1097, 1107-
1108 (9th Cir. 2003).
Such claims should be dismissed for failure to meet
To the extent plaintiffs allege RICO claims on non-fraudulent acts, the
claims are deficient under Rule 12(b)(6) for failing to state facts, as opposed to
conclusory statements, that would support relief. Twombly, 550 U.S. 544, 557.
CONCLUSION
9
10
11
Based on the foregoing, defendants respectfully request the court dismiss the
FAC with prejudice.
12
13
Respectfully submitted,
14
LUCAS & HAVERKAMP LAW FIRM
15
16
17
18
Dated: March 28, 2014.
sf Stephen D .. Lucas
STEPHEN D. LUCAS
Attome_ys for Defendant SAN DIEGO
COUNTY BAR ASSOCIATION
slucas@lucashaverkamp.com
By:
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20
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22
23
24
25
26
27
28
16
CCFC/Stuart v. San Di~o County Bar Association; et al.
USDC Case No. 3:cv-19 4-CAB-BLM
PROOF OF SERVICE
I am over the age of 18 and not a party to this adversary proceeding. My
business address is 4350 Executive Drive, Suite 260, San Diego, California 92121.
A true and correct copy of the foregoing document described as:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF DEFENDANT'S OMNIBUS MOTION TO DISMISS
PLAINTIFFS' FIRST AMENDED COMPLAINT
[Fed.R.Civ.P. S(a), S(e), 9(b), 12(b)(l), 12(b)(6) AND 4l(b)
8
9
10
11
12
13
14
15
will be served or was served on the interested parties in the form and manner required
by this Court pursuant to controlling General Orders: via NEF on the Electronic Mail
List to receive NEF transmission in .this matter. I declare under penalty of perjury
under the laws of the United States of America that the foregoing is true and correct.
Dated March 28, 2014 at San Diego, California.
16
ls/Janis Moore
Janis Moore
17
18
19
20
21
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25
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27
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Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 1 of 22

Stephen D. Lucas (74726)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR

SAN DIEGO COUNTY BAR

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

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 2 of 22

TABLE OF AUTHORITIES ...................................................................................... ii

INTRODUCTION AND SUMMARY OF MOTION ....................................... 1

III PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTE

IV THE FAC SHOULD BE DISMISSED FOR LACK OF

PLAINTIFFS' CLAIMS ARE BARRED BY THE

VI THE FAC SHOULD BE DISMISSED FOR FAILURE TO

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 3 of 22

Action Apartment Assoc. v. Santa Monica Rent Control

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................... 12

District a/Columbia Court ofAppeals v. Feldman, 460 U.S. 462 ............................ 11

Greater L.A. Council on Deafness, Inc. v. Zolin

Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343 ...................................... 8

Krainski v. State ofNevada ex.rel. Bd. ofRegents

Lantzy v. Centex Homes, 31Cal.4th363 (2003) ........................................................ 10

McDade v. West, 223 F.3d 1135 (9th Cir. 2000) ....................................................... 13

McDougal v. County ofImperial, 942 F.2d 668 ........................................................... 9

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 4 of 22

McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ......................................................... 5

Pennhurst v. Halderman, 465 U.S. 89 (1984) ............................................................ 12

Presidio Group, LLCv. GMAC Mortg. LLC, 2008 WL 1595675 ................................ 8

Presidio Group, LLC v. Juniper Lakes Development, LLC,

Schucker v. Rockwood, 846 F.2d 1202 (9th Cir. 1988) ............................................. 14

Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920 ...................... 8

Uribe v. Countrywide Financial, 2009 WL 1953413 ................................................... 3

VonSaher v. Norton Simon Museum ofArt at Pasadena

West v. Atkins, 487 U.S. 42 (1988) ............................................................................ 13

World Thrust Films, Inc. v. International Family Entertainment, Inc.

Yourish v. California Amplifier, 191F.3d983 (9th Cir. 1999) ..................................... 7

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 5 of 22

California Government Code, 6254.21 ....................................................................... 6

United States Code

Constitution, Eleventh Amendment ........................................................................... 12

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 6 of 22

INTRODUCTION AND SUMMARY OF MOTION

This motion seeks dismissal with prejudice of plaintiffs' First

The FAC should be dismissed with prejudice on the following grounds:

for violations of the court's order and other rules;

Amendment and the Rooker/Feldman doctrine;

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 7 of 22

THE FAC SHOULD BE DISMISSED WITH PREJUDICE PURSUANT

TO RULE 41(b) FOR FAILURE TO COMPLY WITH FRCP 8 AND 9

dismissal with prejudice is justified under the circumstances here.

Failure To Comply With Rule 8(a) and 8(e)

states a pleading shall be simple, concise, and direct."

over 1250 pages of attachments. [Doc. 90, 90-1 to 90-13.]

The attachments appear to

Lucas ~~2, 3.)

The original complaint identified three plaintiffs, one of which, Lexevia, is

a suspended corporation and appeared without counsel. Accordingly, Lexevia's claims

were dismissed. [Doc. 88 at p. 5.]

Children, a Delaware Public Benefit Corporation.

The FAC now identifies only two plaintiffs,

California Coalition is now

Case 3:13-cv-01944-CAB-BLM Document 131-1 Filed 03/28/14 Page 8 of 22

Coalition without counsel. [Doc. 97, 98.]

The F AC identifies over 58 defendants including the San Diego County