Darren Chaker Civil RICO

Case: 17-56676, 01/18/2019, ID: 11159769, DktEntry: 84, Page 1 of 80
No. 17-56676
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
SCOTT A. MCMILLAN;
THE MCMILLAN LAW FIRM, APC,
Plaintiffs and Appellants,
v.
DARREN D. CHAKER, an individual, and as trustee of

PLATINUM HOLDINGS GROUP TRUST, DBA COUNTER
FORENSICS, et al.,
Defendants and Appellees.
From the United States District Court Southern District of

California No. 3:16-cv-02186-WQH-MDD
Hon. William Q. Hayes
APPELLEE DARREN CHAKER’S ANSWERING BRIEF
*Stephen G. Larson, SBN 145225

Jerry A. Behnke, SBN 180462
Steven A. Haskins, SBN 238865
Michael E. Talent, SBN 322220
LARSON O’BRIEN LLP
555 South Flower Street, Suite 4400
Los Angeles, California 90071
Tel: 213.436.4888
*SLarson@larsonobrienlaw.com
Attorneys for DARREN D. CHAKER an individual and as trustee of

PLATINUM HOLDINGS GROUP TRUST, dba COUNTER
FORENSICS
TABLE OF CONTENTS
PAGE
I. INTRODUCTION ................................................................... 11
II. STATEMENT OF JURISDICTION ....................................... 13
III. ISSUES PRESENTED FOR REVIEW ................................... 14
IV. STATEMENT OF THE CASE ................................................ 16
A. STATEMENT OF FACTS ............................................. 16
1. McMillan’s Publication of Zaya v. Chaker and

Chaker’s Alleged Reaction...................................... 17
2. Chaker’s Alleged Web Activities ............................ 19
3. McMillan’s Intervention in Chaker’s Lawsuits and

the Settlement Offer ............................................... 21
4. Alleged Emails ........................................................ 23
B. PROCEDURAL HISTORY ............................................ 24
1. The Complaint ........................................................ 24
2. The District Court Dismisses McMillan’s Meritless

Suit .......................................................................... 28
V. SUMMARY OF ARGUMENT ................................................ 30
VI. LEGAL ARGUMENT ............................................................. 32
A. THE FAC FAILS TO ALLEGE A SECTION 1962(c)

RICO VIOLATION ........................................................ 32
1. Standards for Analyzing Whether a RICO Cause of

Action Has Been Pled. ............................................ 33
2. This Court Should Affirm the District Court’s

Ruling Dismissing the Section 1962(c) RICO Claim
Against Chaker Because the FAC Failed To Plead
An Extortionate Act ................................................ 34
2
3. The Ninth Circuit Can Affirm the District Court’s

Order Because of the FAC’s Failure to Plead RICO
Act Standing ........................................................... 49
4. The FAC Failed to Plead a RICO Enterprise or

Sufficient Racketeering Activity ............................ 58
B. NOERR-PENNINGTON IMMUNITY BARS THE

CLAIMS ASSERTED IN THE FAC .............................. 70
C. THE RICO CONSPIRACY FALLS WITH THE FAC’S

FAILURE TO PLEAD A SUBSTANTIVE RICO CLAIM
........................................................................................ 73
D. THE DISTRICT COURT PROPERLY DISMISSED

MCMILLAN’S STATE LAW CLAIM ............................ 75
VII. CONCLUSION........................................................................ 76
3
TABLE OF AUTHORITIES
Page(s)
Cases
Allwaste, Inc. v. Hecht,

65 F.3d 1523 (9th Cir. 1995) ....................................................... 67
Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ..................................................................... 54
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................. passim
Balisteri v. Pacifica Police Dep’t,

901 F.2d 696 (9th Cir. 1990) ....................................................... 33
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) overruled in different
part by statute.............................................................................. 42
BE & K Constr. Co. v. N.L.R.B.,

536 U.S. 516 (2002) ..................................................................... 71
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .............................................................. passim
Boyle v. United States,

556 U.S. 938 (2009) ..................................................................... 59
Canyon County v. Syngenta Seeds, Inc.,

519 F.3d 969 (9th Cir. 2008) ..................................................54, 58
Christie v. Tuesday Morning, Inc.,

Case No. 2:14-cv-06505-PSG-AGR, 2015 WL
12781053 (C.D. Cal. May 27, 2015) ............................................ 17
Coyotzi v. Countrywide Fin. Corp.,

Case No. CV F 09-1036 LJO SMS, 2009 WL 2985497
(E.D. Cal. Sept. 16, 2009) .......................................................60, 63
4
Curtis & Assocs. v. Law Offices of David M. Bushman,

758 F. Supp. 2d 153 (E.D.N.Y. 2010) .....................................44, 53
Diaz v. Gates,
420 F.3d 897 (9th Cir. 2005) (en banc) ....................................... 49
Doe v. Roe,
958 F.2d 763 (7th Cir. 1992) ..................................................52, 56
Eclectic Props. E., LLC v. Marcus & Millichap Co.,

751 F.3d 990 (9th Cir. 2014) ...................................... 33, 34, 58, 59
FindTheBest.com, Inc. v. Lumen View Tech. LLC,

20 F. Supp. 3d 451 (S.D.N.Y. 2014) ............................................ 60
Gonzales v. Lloyds TSB Bank, PLC,

532 F. Supp. 2d 1200 (C.D. Cal. 2006) ........................................ 66
H.J. Inc. v. Nw. Bell Telephone,

492 U.S. 229 (1989) ..................................................................... 67
Hamm v. Rhone-Poulanc Rorer Pharms.,

187 F.3d 941 (8th Cir. 1999) ....................................................... 53
Hassell v. Bird,
5 Cal. 5th 522 (2018) ..............................................................43, 45
Hemi Grp., LLC v. City of New York,

559 U.S. 1 (2010) .............................................................. 54, 56, 57
Holmes v. Sec. Investor Prot. Corp.,

503 U.S. 258 (1992) .......................................................... 49, 53, 54
Howard v. Am. Online, Inc.,

208 F.3d 741 (9th Cir. 2000) ..................................................67, 73
Knoell v. Petrovich,
76 Cal. App. 4th 164 (1999)......................................................... 47
Lerette v. Dean Witter Organization, Inc.,

60 Cal. App. 3d 573 (1976) .......................................................... 47
5
Levitt v. Yelp! Inc.,

Nos. C-10-1321 EMC, C-10-2351 EMC, 2011 WL
5079526 (N.D. Cal. Oct. 6, 2011)................................................. 43
Malin v. Singer,
217 Cal. App. 4th 1283 (2013)..................................................... 48
Manistee Town Ctr. v. City of Glendale,

227 F.3d 1090 (9th Cir. 2000) ..................................................... 70
Medallion Television Enterprises, Inc. v. SelecTV of

California, Inc.,
833 F.2d 1360 (9th Cir. 1987) ..................................................... 68
Moore v. City of E. Cleveland,

431 U.S. 494 (1977) ..................................................................... 65
Myers v. Lee,
Case No. 1:10-CV-131, 2010 WL 3745632 (E.D. Va.
Sept. 21, 2010) ............................................................................. 63
Notrica v. Bd. of Supervisors,

925 F.2d 1211 (9th Cir. 1991) ..................................................... 76
Odom v. Microsoft Corp.,

486 F.3d 541 (9th Cir. 2007) ............................................ 33, 58, 59
People v. Kozlowski,
96 Cal. App. 4th 853 (2002)....................................................50, 51
People v. Kwok,
63 Cal. App. 4th 1236 (1998)....................................................... 50
People v. Torres,
33 Cal. App. 4th 37 (1995)........................................................... 41
Pillsbury, Madison & Sutro v. Lerner,

31 F.3d 924 (9th Cir. 1994) ......................................................... 54
Premier Commc’n Network, Inc. v. Fuentes,

880 F.2d 1096 (9th Cir. 1989) ..................................................... 46
6
Pride v. Correa,
719 F.3d 1130 (9th Cir. 2013) ..................................................... 33
Religious Tech. Ctr. v. Wollersheim,

971 F.2d 364 (9th Cir. 1992) ....................................................... 73
Salinas v. United States,

522 U.S. 52 (1997) ..................................................................73, 74
Sanford v. Memberworks, Inc.,

625 F.3d 550 (9th Cir. 2010) ....................................................... 66
Scheidler v. National Organization for Women, Inc.,

537 U.S. 393 (2003) .............................................................. passim
Schultz v. Sundberg,
759 F.2d 714 (9th Cir. 1985) ....................................................... 75
Sea-Land Serv., Inc. v. Atlantic Pac. Int., Inc.,

57 F. Supp. 2d 1048 (D. Haw. 1999) ......................................60, 63
Sedima, S.P.R.L. v. Imrex Co., Inc.,

473 U.S. 479 (1985) .......................................................... 49, 54, 65
Sekhar v. United States,

570 U.S. 729 (2013) .................................................... 36, 37, 38, 39
Sever v. Alaska Pulp Corp.,

978 F.2d 1529 (9th Cir. 1992) ..................................................... 68
Sosa v. DirectTV, Inc.,

437 F.3d 923 (9th Cir. 2006) ............................................ 70, 71, 72
Stansfield v. Starkey,
220 Cal. App. 3d 59 (1990) .......................................................... 53
Steam Press Holdings, Inc. v. Haw. Teamsters, Allied

Workers Union, Local 996,
302 F.3d 998 (9th Cir. 2002) ....................................................... 67
Steinberg Moorad & Dunn Inc. v. Dunn,

136 F. App’x 6 (9th Cir. 2005) ..................................................... 46
7
Sun Sav. & Loan Ass’n v. Dierdorff,

825 F.2d 187 (9th Cir. 1987) ....................................................... 65
United States v. Kirsch,

903 F.3d 213 (2d Cir. 2018) ........................................................ 36
United States v. Marino,

277 F.3d 11 (1st Cir. 2002) .......................................................... 66
United States v. Salerno,

868 F.2d 524 (2d Cir. 1989) ......................................................... 62
United States v. Turkette,

452 U.S. 576 (1981) .......................................................... 59, 60, 64
Upjohn Co. v. United States,

449 U.S. 383 (1981) ..................................................................... 64
Wegner v. Wells Fargo Bank Nat’l Assn.,

Case No. 2:17-CV-1429 JCM (PAL), 2018 WL
3114528 (D. Nev. June 25, 2018) ................................................ 53
Statutes
18 U.S.C. § 1951(b)(2) ...................................................................... 41
18 U.S.C. § 1961(4) .......................................................................... 59
18 U.S.C. § 1962(d) .....................................................................73, 75
28 U.S.C. § 1367(c)(3) ...................................................................... 75
47 U.S.C. § 230(c)(1) ...................................................................42, 43
Cal. Civ. Code § 47 ........................................................................... 46
Cal. Penal Code § 518 .................................................................41, 45
Cal. Penal Code § 519 ...................................................................... 47
8
Other Authorities
Cal. R. of Prof’l Conduct 1.4.1.......................................................... 48
S. Comm. on the Judiciary, Report on Organized Crime

Control Act of 1969, S. Rep. No. 617, 91st Cong. 1st
Sess. 122 (1969) ......................................................................11, 65
U.S. Dep’t of Justice, Criminal RICO: 18 U.S.C. §§ 1961-

1968: A Manual for Federal Prosecutors, 303 n.365
(6th ed. 2016) ............................................................................... 62
Unpublished Opinions, Cal. Courts,

http://www.courts.ca.gov/ opinions-nonpub.htm (last
visited Dec. 14, 2018) .................................................................. 37
9
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel
for Defendant and Appellee Darren D. Chaker, an individual, and as
trustee of Platinum Holdings Group Trust, dba Counter Forensics,
states that he is an individual and that Platinum Holdings Group
Trust is a trust, has no parent corporation, and that no publicly held
corporation owns a 10% or greater interest in it.
Dated: January 18, 2019 LARSON O’BRIEN LLP
By:/s/ Stephen G. Larson

Stephen G. Larson
Jerry A. Behnke
Steven A. Haskins
Michael E. Talent
Attorneys for Defendant and

Appellee DARREN D. CHAKER
an individual, and as trustee of
PLATINUM HOLDINGS
GROUP TRUST, dba
COUNTER FORENSICS
10
I. INTRODUCTION
In 1970, Congress adopted the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) to seek the “elimination of
infiltration of organized crime and racketeering into legitimate
organizations operating in interstate commerce.” 1 The RICO Act
gave law enforcement a powerful tool to counter the proliferation of
national crime organizations too broad and too powerful for local law
enforcement organizations to combat. Unfortunately, it also gave
vindictive plaintiffs a potential vehicle for frivolous lawsuits like this
one.
This case is the latest salvo in Plaintiff-Appellant Scott
McMillan’s 2 personal vendetta against Defendant-Appellee Darren
D. Chaker. The dispute began when Chaker requested that
McMillan, an attorney, remove from his website an unpublished
1S. Comm. on the Judiciary, Report on Organized Crime Control

Act of 1969, S. Rep. No. 617, 91st Cong. 1st Sess. 122 (1969).
2 McMillan’s law firm, The McMillan Law Firm, APC, was also a
plaintiff below, and is ostensibly an appellant here. However,
McMillan’s opening brief does not distinguish between McMillan
individually and his law firm, so except where otherwise stated, the
brief refers to both as “McMillan.”
11
court opinion involving Chaker. McMillan refused, and a quarrel
ensued. Over time, the feud escalated and gave rise to this lawsuit.
In his First Amended Complaint (the FAC), McMillan takes the
organized crime “family” metaphor far too literally, suing Chaker,
his mother, Nicole Chaker, and his sister, Vania Chaker, on the
ground that their natural familial relationship constitutes a RICO
association-in-fact, while casting Chaker as a kind of Al Capone for
the internet age. The district court dismissed McMillan’s RICO
claims for failing to state a plausible claim for relief without
prejudice and with leave to amend.3
Its decision was sound and should be affirmed. Not only does
McMillan fail to allege a viable RICO claim, his allegations are
internally inconsistent and highly implausible. For example, the
FAC alleges Chaker extorted his intangible property interests to
“practice law free of threats and in accordance with California’s
ethical rules and to publish decisions on the internet.” But McMillan
cannot demonstrate that those rights are legally recognized and
3 McMillan has since refiled his state claims in state court, and they
are stayed pending this appeal.
12
protected property rights. Nor—as the district court held—are
McMillan’s alleged interests obtainable by another party, even if
they could be classified as “property.” McMillan further insists on
building the alleged RICO enterprise out of normal and mundane
family and attorney-client relationships, while failing to allege any
of the specific and proper indicia of an actual RICO association-in-
fact. Permitting the FAC to proceed on such flimsy allegations reads
the “enterprise” requirement entirely out of the RICO Act,
undermining Congressional intent and sound public policy.
A review of the FAC demonstrates that far from alleging a
viable RICO claim, McMillan has attempted to weaponize the law to
make Chaker (and others) a scapegoat for McMillan’s own failings.
Put another way, McMillan is his own worst enemy, and his
disjointed and incredible FAC merely emphasizes that fact. The
Ninth Circuit should affirm the District Court’s decision to dismiss
the FAC for failure to state a viable legal claim.
II. STATEMENT OF JURISDICTION
Chaker agrees with McMillan’s statement of jurisdiction.
13
III. ISSUES PRESENTED FOR REVIEW
1. To survive a motion to dismiss for failure to state a claim,
a complaint must plead “enough facts to state a claim . . . that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007). The FAC alleges a RICO Act violation. It therefore needed
to plead facts illustrating all elements of a Section 1962(c) RICO
claim. The issue is whether the FAC did so.
a. A RICO violation requires the plaintiff to plead
predicate racketeering acts. Here, the alleged predicate acts
are generic extortion. The FAC must therefore allege that
Chaker received McMillan’s obtainable property by obtaining
it with McMillan’s consent. Property is obtainable if it is
exercisable, transferable, or sellable. The FAC alleges that
Chaker extorted McMillan’s “ability to practice law free of
threats and in accordance with California’s ethical rules and to
publish cases on the internet,” but those things are not
exercisable, transferable, or sellable. Was the district court
correct in finding that the FAC failed to plead that McMillan’s
property was obtainable? And, if not, does the FAC otherwise
fail to state a RICO claim by failing to allege McMillan’s

14
consent and, with respect to at least five predicate acts, by
resting the predicate acts on CDA-immunized conduct and a
non-extortionate settlement letter?
b. Pleading statutory RICO standing requires
plausible allegations of an injury to business or to property and
proximate cause linking the injury to the RICO violation.
Proximate cause exists where a direct relationship exists
between the injury and the violation. State law defines the
scope of protectable property interests. California does not
recognize the intangible right to practice law or the
dissemination of court opinions as property interests. Did the
FAC sufficiently plead the necessary RICO standing
prerequisites?
c. A RICO enterprise is a structured organization.
The FAC bases the alleged RICO enterprise on familial and
attorney-client relationships between Chaker, his mother, and
sister. Do such relationships support an allegation of a
racketeering enterprise?
d. A pattern of racketeering activity requires related
and continuous acts. If a defendant directs his racketeering

15
acts toward one person and one object, there is no continuity; if
the racketeering acts significantly vary, there is no
relatedness. The FAC’s allegations of relatedness involve
actions Chaker directed at McMillan to achieve a single
purpose, while the allegations of continuity reference different
people, different objectives, and different members of the
alleged enterprise. Under those circumstances, did the FAC
allege the necessary relatedness and continuity?
2. Is a RICO conspiracy claim properly alleged if there is no
properly pled substantive RICO violation?
3. Did the district court abuse its discretion by declining
supplemental jurisdiction over McMillan’s state law claims after
dismissing the RICO and RICO conspiracy claims?
IV. STATEMENT OF THE CASE
A. STATEMENT OF FACTS
A motion to dismiss challenges a complaint’s sufficiency, and,
therefore, accepts its factual allegations as true. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The following statement of facts is
based upon the FAC’s allegations. Unfortunately, the FAC contains
much irrelevant and salacious material, such as allegations of sex

16
trafficking. (7 ER 1148 ¶ 21). The allegations presented here are
those relevant to McMillan’s legal claims. 4
1. McMillan’s Publication of Zaya v. Chaker and

Chaker’s Alleged Reaction
Scott McMillan is a California-licensed attorney who operates
an unaccredited law school, the McMillan Academy of Law, and a
website that posts unpublished California courts of appeal decisions.
(7 ER 1141-42, ¶ 5; id. 1154-55, ¶ 30).5 The FAC alleges that, in
November 2010, Chaker asked McMillan to remove one of the
decisions, Zaya v. Chaker, McMillan had posted on his website. (Id.
1155 ¶ 31). McMillan refused. In response, the FAC claims that
Chaker pressured McMillan to take down the Zaya opinion by
4 Furthermore, the vast majority of McMillan’s allegations—

especially the ones having nothing to do with McMillan—are alleged
as some form of “information and belief.” (See, e.g., 7 ER 1143-44
¶¶ 10-12; id. 1147-48 ¶¶ 17-21; id. 1151-54 ¶¶ 27-29). They are
therefore irrelevant. See Christie v. Tuesday Morning, Inc., Case No.
2:14-cv-06505-PSG-AGR, 2015 WL 12781053, at *3 (C.D. Cal. May
27, 2015) (“information and belief” pleading suffices only where
plaintiff “states the factual basis for the belief”). Moreover, many of
the allegations lack a specific date or provide dates that are outside
any date range of the racketeering acts the FAC alleges. (See, e.g., 7
ER 1143-48 ¶¶ 10-22).
5McMillan’s Excerpts of Record are abbreviated as “ER.” Volume

numbers precede the “ER,” page numbers come after.
17
vandalizing the McMillan family’s cars. (Id. ¶¶ 32-33). McMillan
believes that Chaker was responsible because of a reference to
McMillan’s website in one case of vandalism, a neighbor’s report that
he saw a car matching the model Chaker drove at the scene of
another act of vandalism, and emails Chaker sent to McMillan. (Id.)
The FAC also alleges that Chaker pressured him by sending emails
“making implicit threats against [McMillan’s] property” in 2010. (Id.
1176 ¶ 99; see id. 1156 ¶ 34 (describing the alleged threat)).
The FAC alleges that those acts form the basis of an attempt to
extort McMillan’s “intangible property right to practice law and
publish court decisions on the internet . . . .” (7 ER 1176 ¶ 99
(Racketeering Act One)). The alleged vandalism also serves as one
basis for the FAC’s claim that the Chaker family “assisted each
other.” (Id. 1173 ¶ 91). 6
6 The cross-reference in the paragraph including the enterprise

allegation appears to be incorrect, but McMillan seems to be
referring to his allegation, based on information and belief, that
“Vania Chaker accompanied [Chaker] during that vandalism.” (7 ER
1155 ¶ 32).
18
2. Chaker’s Alleged Web Activities
The FAC also alleges that, after McMillan’s refusal to remove
the Zaya decision, Chaker started criticizing McMillan on “Internet
gripe sites and consumer review sites . . . .” (7 ER 1156 ¶ 37). Some
of Chaker’s alleged postings appear to be reacting to McMillan’s later
decision to represent individuals in litigation against Chaker. (See,
e.g., id. ¶ 36; id. 1161-62 ¶¶ 43-46). The FAC also claims—often
based on nothing but McMillan’s own surmise (see id. 1164 ¶ 55; id.
1168 ¶ 63)—that Chaker 7:
• Criticized McMillan’s legal work and unaccredited law
school. (See, e.g., id. 1165 ¶¶ 57-58; id. 1166 ¶ 60; id. 1168
¶ 66).
• Posted false and poor reviews of McMillan’s firm. (Id. 1168
¶ 68; 1169 ¶ 69).
7McMillan also “believe[s] that [Chaker] has attempted to hack into

[his] twitter [sic] and paypal [sic] accounts. . . . [d]ue to the timing of
the notice[s]” McMillan received about suspicious activity on the
accounts. (7 ER 1161 ¶ 42). The FAC also alleges that someone—
though it does not allege that it was Chaker—sent an email using
McMillan’s email address. (7 ER 1162 ¶ 47). The FAC does not say
how those accusations relate to the RICO claim.
19
• Posted false blog pieces accusing McMillan of child
molestation. (E.g., id. 1161 ¶ 43; id. 1162 ¶ 46; id. 1168
¶ 67; see also id. 1162 ¶ 48 (posting that provides a link to a
blog post)).
• Used McMillan’s name, name of his law firm, and law firm’s
logo on websites and blog posts. (E.g., id. 1162 ¶ 45; 1166-
67 ¶ 61; id. 1170-71 ¶ 79).
• Used search optimization techniques to increase the
likelihood of people finding the posts and sites. (E.g., id.
1161-62 ¶ 44; id. 1168 ¶ 64; id. 1169 ¶ 70).
The FAC alleges that the internet postings are part of Chaker’s
racketeering activity. Altogether, postings accusing McMillan of
child abuse and criticizing McMillan and his firm form the basis of
four allegations that Chaker extorted McMillan’s “intangible
property right to practice law free of threats, and in accordance with
the California Rules of Professional Conduct.” (7 ER 1176-77 ¶ 101
(Racketeering Act Two); id. 1178 ¶ 105 (Racketeering Act Six); id.
1179-80 ¶ 108 (Racketeering Act Nine); id. 1180 ¶ 109 (Racketeering
Act Ten)). The FAC also alleges that the internet postings show the
20
alleged RICO enterprise’s effect on interstate commerce. (Id. 1174
¶ 93).8
3. McMillan’s Intervention in Chaker’s Lawsuits

and the Settlement Offer
After Chaker asked McMillan to take down the Zaya opinion,
McMillan began representing individuals opposite Chaker in
paternity-related suits. (E.g., 7 ER 1156-57 ¶¶ 39-40). In one of
those suits, McMillan received a letter from Chaker, via Chaker’s
mother, Nicole, saying: “You [McMillan] never considered the fact
that due to your conduct your client may suffer. I should remind you
the First Amendment is a 2 way street and I have the right to express
my opinion as well.” (Id. 1159 ¶ 40(h)).
In the same case, Chaker emailed McMillan a settlement offer.
(7 ER 1159-61 ¶ 41). The settlement email included Chaker’s offer
to remove blog posts or to “pay . . . to have SEO performed to push
down the links . . . ” in return for a settlement. (Id. 1160 ¶ 41). It
also said that Chaker “wins” “by having [McMillan and his family]
spending money on cameras, watching the monitors, looking out the
8 McMillan also alleges that activity the Chakers directed at others

is part of the interstate activity of the “Chaker Enterprise.” (See 7
ER 1174 ¶ 93).
21
window, and drawing drapes . . . [,]” forcing McMillan to spend time
on cases, and losing McMillan clients. (Id. 1160-61 ¶ 41). The email
concluded by declaiming responsibility for any conduct necessitating
that behavior. (Id. 1161 ¶ 41).
The FAC also alleges that Chaker, and members of Chaker’s
family, attempted to threaten a state investigator and a private
investigator involved in the same paternity case against Chaker.
Specifically, the FAC alleges that:
• Chaker videotaped McMillan and the state investigator who
was to testify for McMillan’s client while the two were
walking in the courthouse. (7 ER 1157 ¶ 40(b)).
• Vania Chaker blocked McMillan and the state and private
investigator from leaving the courtroom. (Id. 1158 ¶ 40(c)).
• Chaker “demand[ed] that [the state investigator] be
arrested for being armed.” (Id. 1158 ¶ 40(d)).
• Vania Chaker and Chaker followed the investigators in their
SUV after they left the courtroom. (Id. 1158 ¶ 40(e)).
Finally, the FAC alleges that Chaker’s mother, Nicole Chaker,
appeared on his behalf and filed papers for Chaker in the paternity
case. (7 ER 1159 ¶¶ 40(g), 40(i)).

22
According to the FAC, the letter and settlement offer constitute
three of Chaker’s alleged extortions of McMillan’s “intangible
property right to practice law free of threats, and to practice in
accordance with the California Rules of Professional Conduct . . . .”
(7 ER 1177-78 ¶¶ 102-04 (Racketeering Acts Three through Five)).
The FAC also alleges that Vania Chaker’s and Nicole Chaker’s
actions are “proof” of a RICO enterprise compromised of them and
Chaker. (Id. 1173-74 ¶ 92).
4. Alleged Emails
The FAC alleges that Chaker sent “e-mails to many members
of the local legal community[] accusing [McMillan] of molesting his
daughter.” (7 ER 1163 ¶ 49). The FAC also alleges that Chaker
claimed that he sent emails to Foothills Bar Association members
stating that McMillan molested his daughter. (Id. 1163-64 ¶ 52).
But McMillan does not allege that Chaker actually sent the email,
only that Chaker claimed to have done so. (See id. (quoting the
email)).
The FAC alleges that those acts constitute two predicate
racketeering acts of extortion of McMillan’s “intangible property
right to practice law free of threats, and to practice in accordance
23
with the California Rules of Professional Conduct . . . .” (7 ER 1179
¶¶ 106-07 (Racketeering Acts Seven and Eight)).
B. PROCEDURAL HISTORY
1. The Complaint
a. The RICO Act claim against Chaker
McMillan initiated this action on August 29, 2016, in the U.S.
District Court for the Southern District of California against Chaker,
Vania Chaker, and Nicole Chaker. (7 ER 1369). After Chaker filed
a motion to dismiss, McMillan filed the FAC, which is the basis of
this appeal. (See id. 1371).
The FAC alleges that Chaker violated 18 U.S.C. § 1962(c). (7
ER 1172 ¶ 86). To establish the elements of a RICO claim, the FAC
alleges that the Chaker family constituted a RICO enterprise whose
“common purpose” was to obtain McMillan’s property. (Id. 1172
¶ 88).9 It also alleges effects on interstate commerce—insofar as the
allegations affect McMillan—because of Chaker’s internet-based
activity. (Id. 1174 ¶ 93). And it contends that the alleged Chaker
9 McMillan also claims the enterprise had a common purpose to

perform acts that had nothing to do with him, such as filing Fair
Credit Reporting Act lawsuits and harassing lawyers. (7 ER 1172-
73 ¶ 90-91).
24
family enterprise affected interstate commerce because its activities
affected people besides McMillan. (Id.)
The FAC asserts a pattern of racketeering activity based on
Chaker’s alleged intent to obtain McMillan’s “intangible property
right to adequately represent victims in his practice of law and
prosecute his case on behalf of his clients free of threats” through
violations of California’s extortion laws. (7 ER 1174-75 ¶ 95).
Chaker’s acquisition of those personal property rights allegedly, and
derivatively, injured McMillan’s business. (Id. 1175 ¶ 96).10
Moreover, the FAC claims that Chaker’s activities “were related to
each other, and related to the activities and purposes of the
Enterprise.” (Id. ¶ 98). It alleges that “the ‘continuity’ of the pattern
of racketeering activity is both closed-ended inasmuch as a series of
related predicate offenses extended over at least ten years [and] also
are ‘open-ended’ inasmuch as the racketeering activities of extortion
themselves carry a specific threat of repetition extending indefinitely
10While the FAC does not describe the harm, or how Chaker’s actions
caused the harm, an earlier paragraph does mention the fact that
“[o]pposing counsel[s]” have mentioned Chaker’s posts and that
“McMillan believes that jurors” he has practiced in front of read and
took the posts “into account in determining cases.” (7 ER 1171 ¶ 80).
25
into the future.” (Id.) The predicate acts allegedly continued because
of the enterprise’s conduct towards others. (Id. 1176 ¶ 98). The FAC
alleges ten supposed predicate acts of extortion. (See id. 1176-80
¶¶ 99-109).
The FAC seeks treble damages, injunctive relief, revocation of
Chaker’s supervised release, and an order requiring him to remove
blog posts. (7 ER 1180-81 ¶¶ 110-12). The FAC also asks for “an
order . . . requiring [Chaker] to request the removal of his posts from
the Internet forums in a form that may be published to third parties.”
(Id. 1181 ¶ 113). And, finally, the FAC asks for “an order with
findings such that can be published to those search engines that have
indexed the posts . . . [a]nd that [Chaker] be ordered to request the
removal of such posts from such search indices.” (Id. ¶ 114). Both
requests state either McMillan’s hope or belief that third parties
would comply with the request. (Id. ¶¶ 113-14).
b. The RICO conspiracy claim against

Chaker, Vania Chaker, and Nicole
Chaker
The FAC alleges that all the defendants—Chaker, his sister,
and his mother—“conspired to violate section 1962(c), i.e., each
defendant agreed that a conspirator (DARREN) would conduct or

26
participate in the affairs of the Enterprise through a pattern of
racketeering, including acts involving extortion in violation of
California state law, as more fully described in the First Claim for
Relief.” (7 ER 1182 ¶ 116). The defendants’ “conspiratorial
objective” was “to obtain [McMillan’s] interests in property.” (Id.) As
proof of the alleged agreement, the FAC claims that defendants filed
“meritless lawsuits under the Fair Credit Reporting Act, the Fair
Debt Collections Practices Act and other litigation,” none of which
involved McMillan. (Id. ¶ 117). The defendants’ activity during
Chaker’s paternity suit—which did involve McMillan—is also part of
the alleged basis of the supposed conspiracy. (Id.)
c. The state law claim
The FAC alleges a civil extortion claim against Chaker and his
mother, Nicole Chaker, claiming the taking of several supposed
property interests. (7 ER 1183 ¶¶ 123-26). Two of those—“the right
to continue to practice law consistent with the California Business
and Professions Code, and the California Rules of Professional
Conduct, with respect to the advocacy on behalf of Susan A” and to
publish cases on the internet (id. ¶¶ 123, 125)—are alleged as part
of the predicate racketeering acts in McMillan’s RICO claim. The

27
remainder—“the right to collect on a debt due and owing by virtue of
the fee award in the Chaker v. Mateo action” and “an official act of a
public officer, i.e., a judge, through Plaintiffs’ clients acquiescence”
(id. ¶¶ 124, 126)—are unique to the civil extortion cause of action
dismissed by the district court for lack of jurisdiction.
2. The District Court Dismisses McMillan’s

Meritless Suit
Chaker, his sister, and his mother moved to dismiss and to
strike the FAC. (1 ER 7 (discussing the motions before the district
court)). Chaker also moved for sanctions pursuant to Federal Rule
of Civil Procedure 11. (Id. 20-21 (ruling on the motion)).
On August 28, 2017, the district court granted the motion and
dismissed the FAC without prejudice.11 (1 ER 7-22). In doing so, it
noted that to constitute a predicate act of extortion, McMillan needed
to allege that Chaker had committed generic extortion by “obtaining
something of value from another with his consent induc[ed] by the
wrongful use of force, fear, or threats.” (Id. 12-13 (quoting United
Bhd. of Carpenters & Joiners of Am. v. Bldg. & Constr. Trades Dep’t,
11The district court denied Chaker’s motion for Rule 11 sanctions,

and denied his motion to strike as moot. (1 ER 16, 21).
28
770 F.3d 834, 843 (9th Cir. 2014))). The district court then noted
that the Supreme Court, in Scheidler v. National Organization for
Women, Inc., 537 U.S. 393 (2003), had held that “obtaining property”
for generic extortion purposes required more than interfering with a
person’s business. (Id. 13). Rather, it required that the defendant
receive “‘something of value from’ respondents that they could
exercise, transfer, or sell.” (Id. (quoting Scheidler, 537 U.S. at 405)).
Turning to the FAC’s factual allegations, the district court
identified McMillan’s allegations that the property Chaker extorted
was “the ‘intangible right to practice law and publish decisions on
the internet’ and the ‘intangible property right to practice law free of
threats, and to practice in accordance with the California Rules of
Professional Conduct.’” (1 ER 14). But those allegations were
“insufficient to establish that . . . Chaker obtained something of
value from [McMillan].” (Id.)
Because McMillan failed to allege a substantive RICO
violation, the district court also dismissed the RICO conspiracy
29
claim. (1 ER 14-15). It then declined to exercise supplemental
jurisdiction over the FAC’s state extortion claims. (Id. 15).12
On October 10, 2017, after McMillan did not amend the FAC,
the district court closed the case. (1 ER 6). McMillan then pursued
this appeal. (2 ER 122-23).
V. SUMMARY OF ARGUMENT
Numerous grounds exist for affirming the district court’s
decision to dismiss the FAC for failure to state a viable claim:
1. McMillan failed to allege the predicate crime of extortion.
As the District Court correctly concluded, McMillan failed to claim
that Chaker “obtained” any “property” from McMillan. McMillan’s
“intangible property”—a personal right to practice law threat-free
and to publish decisions on the internet—is not transferable, and
thus not “obtainable property.” The FAC also never alleges that
McMillan consented to give Chaker his intangible property, another
necessary element of generic extortion. Moreover, many of the FAC’s
predicate acts fail to allege a wrongful use of force, fear, or threats.
12The district court also quashed service of process on Vania Chaker.

(1 ER 20).
30
2. McMillan failed to plead statutory standing to bring a
RICO claim because he did not allege that he suffered “injury to
business or property” as RICO requires, or that Chaker’s actions
proximately caused any such injury.
3. The FAC failed to allege the existence of an “enterprise,”
or a pattern of racketeering activity. There is no “enterprise”
because the FAC has not plausibly alleged an association-in-fact.
Instead, he alleges only ordinary and unremarkable familial and
attorney-client relationships unsuited in their own right to
establishing an existing RICO enterprise. Permitting a civil RICO
claim to go forward on those minimal allegations presupposes an
unnecessary—if not outright dangerous—expansion of potential
RICO liability. And McMillan failed to allege facts showing a
“pattern” of racketeering because the FAC merely offers conclusory
statements that the alleged racketeering acts are somehow related
and continuous.
4. Even if the FAC had alleged the necessary elements of a
civil RICO claim, the Noerr-Pennington doctrine immunizes Chaker
from liability. The FAC bases the alleged predicate acts on protected,
31
expressive conduct related to legal action. Chaker is immune from
civil liability for those acts.
5. McMillan did not allege a RICO conspiracy. As the
district court concluded, there can be no RICO conspiracy if the
plaintiff fails to allege a RICO violation. Because McMillan failed to
plead a viable RICO violation, his RICO conspiracy claim fails.
6. The district court did not abuse its discretion in
dismissing McMillan’s state law claim. There was no reason for the
district court to exercise pendent jurisdiction where, as here, there
are no properly pled federal claims and a state court can adjudicate
any well-pled state claims.
VI. LEGAL ARGUMENT
A. THE FAC FAILS TO ALLEGE A SECTION 1962(c)
RICO VIOLATION
Section 1962(c) of the RICO Act prohibits any defendant person
from operating or managing an enterprise through a pattern of
racketeering activity. The elements of a Section 1962(c) cause of
action are (1) a defendant person, (2) must be employed by or
associated with an enterprise, (3) operated or managed, (4) through
32
a pattern (5) of racketeering activity. The FAC fails to allege
plausibly any of the key elements of a RICO claim against Chaker.
1. Standards for Analyzing Whether a RICO

Cause of Action Has Been Pled.
A district court’s dismissal for failure to state a claim is subject
to de novo review. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.
2013); Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007). A
complaint survives a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) if it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007). A complaint can fail to state a claim because it
lacks a valid legal theory or because it lacks facts supporting its legal
theory. Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990). A “formulaic recitation of the elements” of a claim is not
enough. Twombly, 550 U.S. at 555.
Reviewing a complaint’s plausibility is a two-step, “context-
specific” process “that requires the reviewing court to draw on its
own judicial experience and common sense.” Eclectic Props. E.,
LLC v. Marcus & Millichap Co., 751 F.3d 990, 995-97 (9th Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). First, a court
33
identifies—and ignores—pleadings that are “no more than
conclusions [and thus,] not entitled to the assumption of truth.” Id.
at 996 (quoting Iqbal, 556 U.S. at 679). Second, the court “assume[s]
the veracity” of the remaining “well-pleaded factual allegations” and
decides whether they “plausibly give rise to an entitlement to relief.”
Id. (quoting Iqbal, 556 U.S. at 678). Facts “merely consistent with a
defendant’s liability” do not state a plausible claim to relief. Iqbal,
556 U.S. at 678.
2. This Court Should Affirm the District Court’s

Ruling Dismissing the Section 1962(c) RICO
Claim Against Chaker Because the FAC
Failed To Plead An Extortionate Act
The District Court correctly dismissed the FAC because it
failed to allege that Chaker had obtained “something of value from”
McMillan as a result of extortionate acts. That conclusion is reason
alone to affirm the District Court’s order.
To plead a RICO violation, the FAC needed to allege
racketeering activity. 18 U.S.C. § 1962(c). Here, the FAC alleges
racketeering activity in violation of California state extortion laws.
(7 ER 1176-1180 ¶¶ 99-109 (claiming that Chaker’s actions were “all
in violation of [California Penal Code] sections 523 and 519”)).
34
However, “for a state offense to be [extortion under RICO], the
conduct must be capable of being generically classified as
extortionate.” Scheidler v. Nat’l Org. for Women, 537 U.S. 393, 409
(2003). To demonstrate extortionate conduct, McMillan needed to
plead that Chaker 1) “obtain[ed] something of value,” 2) “with
[McMillan’s] consent,” and 3) that “[McMillan’s] consent was induced
by the wrongful use of force, fear, or threats.” Id. (quoting United
States v. Nardello, 393 U.S. 286, 290 (1969)). The FAC pleads none
of those things. First, Chaker obtained nothing of value. Second,
McMillan never consented to any transfer of property. And, finally,
many of the FAC’s allegations fail to allege any “wrongful” use of
force, fear, or threats.
a. The FAC does not plead the taking of

“obtainable” property capable of being
extorted.
The District Court dismissed the FAC because McMillan failed
to allege that Chaker obtained something of value from McMillan.
(1 ER 11-14 (relying on Scheidler)). It correctly determined that
because the property the FAC alleges Chaker extorted is not
obtainable, Chaker did not obtain something of value from McMillan.
35
The predicate racketeering act of generic extortion requires
that the defendant “obtain[] something of value.” Scheidler, 537 U.S.
at 409. The key is the word “obtain.” If a person does not “obtain”
property, there is no extortion. See id. at 405. Property is
“obtainable,” and thus extort-able, if it is transferable, that is
“capable of passing from one person to another.” Sekhar v. United
States, 570 U.S. 729, 734 (2013). 13 Put another way, the extortion
must result in the extorter gaining a property interest he can
“exercise, transfer, or sell.” Scheidler, 537 U.S. at 405; see also id.
(noting “that merely interfering with or depriving someone of
property” does not constitute extortion).
Here, the FAC alleges that Chaker obtained two things of
value:
13 While Sekhar interprets the Hobbs Act, “[t]he ‘generic’ definition

of extortion applicable to RICO state law extortion predicate acts and
the Hobbs Act definition of extortion are nearly identical.” United
States v. Kirsch, 903 F.3d 213, 225-26 (2d Cir. 2018) petition for cert.
filed. Thus, Sekhar “is a clarification of what it means to ‘obtain’
property” for generic extortion purposes. Id. at 226; see also
Scheidler, 537 U.S. at 409 (noting the similarity between extortion
under the Hobbs Act and generic extortion).
36
• McMillan’s “intangible property right to . . . publish court
decisions on the internet.” (E.g., 7 ER 1176 ¶ 99).
• McMillan’s “intangible property right to practice law free
of threats, and to practice in accordance with the
California Rules of Professional Conduct.” (E.g., id. 1177
¶ 102).
But those things cannot be obtained, much less transferred or
sold. Everyone has a personal right to disseminate, circulate, or
otherwise publish unpublished California Court of Appeal decisions.
See Unpublished Opinions, Cal. Courts, http://www.courts.ca.gov/
opinions-nonpub.htm (last visited Dec. 14, 2018) (calling
unpublished opinions “public information”). And McMillan’s alleged
right to practice law “free of threats” and in accordance with state
ethical guidelines is an even more abstract “property interest” than
the right to publish court opinions on the internet. Chaker cannot
practice law in McMillan’s place. See Sekhar, 570 U.S. at 738. Nor
does McMillan define the “threats” he demands to practice law
37
without. 14 In any event, none of those activities are transferrable—
and, thus, not obtainable—property rights that can be extorted.
The Supreme Court reached the same conclusion when
considering a similarly alleged property right in Sekhar. Sekhar
involved a defendant convicted of extortion under the Hobbs Act. Id.
at 731. The victim was a general counsel of a state pension fund; the
defendant was a fund manager who threatened to expose the general
counsel’s affair if he did not recommend that the state invest in the
defendant’s fund. Id. at 731-32. The defendant was convicted of
extorting “the General Counsel’s recommendation to approve” the
investment. Id. at 732 (quoting the record).
The government argued that the extorted property was the
general counsel’s “intangible property right to give his disinterested
legal opinion to his client free of improper outside interference.” Id.
at 737-38 (quoting Br. for United States 39). The Supreme Court
disagreed, going so far as to call the argument “absurd.” Id. at 738.
The government’s theory implied that the extorter obtained “the
intangible property right to give his own disinterested legal opinion
14Whether McMillan practices law ethically appears, self-evidently,

to be entirely up to him.
38
to his own client free of improper influence” or “a right to give the
general counsel’s disinterested legal opinion to the general counsel’s
client.” Id. at 738. The claim, the Court noted, “make[s] nonsense of
words,” for “[n]o fluent speaker of English would say that ‘petitioner
obtained and exercised the general counsel’s right to make a
recommendation . . . .’” Id. (emphasis in original). That is, the
extorter could not exercise the alleged intangible property right
himself, meaning the right was not obtainable and could not support
the defendant’s extortion conviction. See id.
Similarly here, McMillan’s extortion argument necessarily
implies that Chaker “obtained and exercised McMillan’s intangible
right to practice law ethically and free of threats, and obtained and
exercised McMillan’s right to publish cases on the internet.” Again,
Chaker cannot take, much less exercise, McMillan’s personal right
to practice law or McMillan’s right to publish court opinions on the
internet. Because Chaker cannot “exercise” those alleged rights—
only, at most, interfere with their use—they are not obtainable. See
Scheidler, 537 U.S. at 405.
McMillan attempts to pivot away from the FAC’s allegations
and assert here other property rights, but he did not allege them in
39
the FAC. (Compare Appellants’ Opening Br. 46-47 [hereinafter
AOB] (listing the “something[s] of value” that Chaker allegedly
“pursued and received”), with 7 ER 1176-80 ¶¶ 99-109 (repeating
that Chaker extorted McMillan’s intangible property rights)).
McMillan cannot shift his approach at this late date; the FAC’s
allegations are what matters, not McMillan’s belated arguments on
appeal. See Twombly, 550 U.S. at 555.
And even if those arguments were viable, Chaker did not obtain
any such property. In his brief, McMillan says
[Chaker] pursued and received something of value from

Appellants: (1) access to McMillan’s financial and social
media accounts, (2) using Appellants’ name/likeness on
a website which Darren could utilize, transfer or sell, (3)
sending emails using TMLF’s likeness and purporting to
be the same, (4) creating other online accounts in
Appellants’ names, and (5) using TMLF’s logo for
[Darren’s] nefarious purposes. (AOB 46-47).
“Using” or “access to” something is a different way of saying
that Chaker interfered, disrupted, or deprived McMillan of those
items of value. Thus, here, McMillan’s own words show that Chaker
did not obtain anything from him, and, thus, there was no extortion.
See Scheidler, 537 U.S. at 404-05.
40
b. The FAC never alleged that McMillan

consented to give Chaker his property.
The FAC also failed to allege McMillan’s consent to any taking
of property. Extortion is “the obtaining of property from another,
with his consent . . . .” 18 U.S.C. § 1951(b)(2) (emphasis added);
Scheidler, 537 U.S. at 409; accord Cal. Penal Code § 518 (“Extortion
is the obtaining of property from another, with his consent . . . .”);
People v. Torres, 33 Cal. App. 4th 37, 50 (1995) (“[I]n extortion[,]
property is taken from another by force or fear ‘with his consent.’”)
But the FAC did not allege McMillan’s consent—a point McMillan
emphasizes here. (See, e.g., AOB 35 (“Here, Appellants alleged that
Darren obtained Appellants’ names and identities . . . as well as
TMLF’s logo, without consent . . . .”) (emphasis added)).15 Quite the
opposite, it alleges that McMillan never consented to give Chaker
anything, much less something that qualifies as a valid property
interest. (See, e.g., 7 ER 1161 ¶ 43 (“Plaintiff had not authorized
15McMillan’s factual allegations of the “intangible property” extorted

from him are limited to the right to practice law free of threats and
to republish unpublished Court of Appeal opinions. McMillan’s
arguments that other property may have been extorted are not
supported by the FAC’s factual allegations. (See 7 ER 1176-80 ¶¶ 99-
109 (alleging the predicate acts)).
41
Defendants to use Plaintiff’s name in any manner.” (emphasis
added)); id. 1162 ¶ 45 (“Plaintiff had not authorized [Chaker] to use
the firm’s name in this manner.” (emphasis added)); id. 1164 ¶¶ 53-
54 (alleging that “Google removed [scott-mcmillan-
attorney.blogspot.com and mcmillanlawfirm.blogspot.com], which
defendants had created without Plaintiffs [sic] authorization”
(emphasis added)). Far from pleading generic extortion, the FAC
establishes its absence. And if the FAC alleges no extortionate act,
there can be no Section 1962(c) RICO claim, just as the District Court
concluded below.
c. CDA immunity applies to much of

Chaker’s internet activities, and thus they
cannot be RICO predicate acts
The FAC also fails to plead any wrongful act because Chaker’s
conduct is legal under federal law. The Communications Decency
Act (“CDA”) bars liability for a “provider or user of an interactive
computer service” who republishes information from “another
information content provider.” 47 U.S.C. § 230(c)(1); see also
Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003) overruled in
different part by statute (holding that § 230(c)(1) immunity applies to
republication of information that a reasonable person would believe

42
a third party provided for publication). Section 230(c)(1) has a broad
reach to ensure that lawsuits do not “chill online speech.” See
Hassell v. Bird, 5 Cal. 5th 522, 539 (2018) (plurality opinion)
(quoting Barrett v. Rosenthal, 40 Cal. 4th 33, 56 (2006)) petition for
cert. filed (discussing application of the CDA to defamation). That
breadth means that CDA immunity bars claims of extortion
premised on republication of web content. See Levitt v. Yelp! Inc.,
Nos. C-10-1321 EMC, C-10-2351 EMC, 2011 WL 5079526, at *9
(N.D. Cal. Oct. 6, 2011) aff’d on other grounds, 765 F.3d 1123 (9th
Cir. 2014) (“[E]ven assuming Plaintiffs have adequately pled
allegations stating a claim of an extortionate threat . . . Defendant is
immune from suit under § 230(c)(1).”).
The FAC here alleges several acts of CDA-immunized conduct.
First, it alleges that, in posting online, Chaker was a “user of an
interactive computer service . . . .” 47 U.S.C. § 230(c)(1). Second, a
number of the alleged defamatory—and, per McMillan’s logic,
extortionate—acts involve the republication of information. That is
the case for racketeering act ten, for instance, which broadly
references posts “on the internet at pissedconsumer.com.” (7 ER
1180 ¶ 109 (referencing, inter alia, id. 1262 (Exhibit Y) (including a

43
docket report in a post))). Racketeering act nine also explicitly
references four acts of republication. (See id. 1180 ¶ 108 (cross-
referencing paragraphs 55-62 and Exhibits O-V); see also, e.g., id.
1214-19 (Exhibit O) (referencing via screenshots a number of third-
party web-postings)). One is Chaker’s posting of a “partial news
article” (id. 1165 ¶ 57(c)), another is his posting of “a webpage print-
out” (id. ¶ 58(b)), a third is his posting of “a news article” (id. 1166
¶ 59(a)), and the fourth is his republication of a docket (id. ¶ 60(b)).
Racketeering act two involves a post containing links to sites
connecting McMillan and a Miss Maura Larkins. (Id. 1176 ¶ 101
(cross-referencing paragraph 46 and Exhibit G)). CDA immunity
covers those republications, thus making them legal.
The CDA also bars at least part of McMillan’s desired relief.
The FAC seeks an order requiring Chaker “to request the removal of
his posts from . . . Internet forums.” (7 ER 1181 ¶¶ 113).16 However,
the CDA bars court orders directing a publisher to remove content,
16The request also highlights the fact that the posts, if anything, are
defamatory, and thus not extortionate. See Curtis & Assocs. v. Law
Offices of David M. Bushman, 758 F. Supp. 2d 153, 169 n.19
(E.D.N.Y. 2010) (“[D]efamation does not meet the definition of a
RICO predicate act . . . .”).
44
even where the publisher is a non-party to the original suit. See
Hassell, 5 Cal. 5th at 541 (plurality opinion) (holding that the CDA
immunizes a non-party publisher from a court order to remove
defamatory postings). Though the FAC frames the relief as a request
to the forums, it comes too close to requiring Internet forums’
“compliance with demands for relief that . . . assign [the forums] the
legal role and responsibilities of a publisher qua publisher.” Id. at
544. The CDA thus bars the request. See id. at 541 (rejecting a
mandatory order as violating the CDA’s immunity provision).
In short, the FAC relies in large part on communications
immunized by the CDA and for relief that is contrary to law. Acts
based on such republication cannot form the basis of a predicate
racketeering act.
d. The settlement offer was not a wrongful

act and cannot be predicate to a RICO
claim as a matter of law
Similarly, the settlement letter McMillan alleges he received is
not extortion under any definition. Generic extortion and extortion
under California state law have similar elements. Compare
Scheidler, 537 U.S. at 409 (listing elements of generic extortion),
with Cal. Penal Code § 518 (defining extortion under California law).
45
Logic therefore dictates that, if something is not extortion under
California law, it cannot be generic extortion, since California law is
coterminous with, or even broader than, generic extortion. 17
The gist of the settlement letter as it relates to McMillan is
that, in return for a resolution of ongoing litigation, Chaker would
remove blog posts concerning McMillan, or work to minimize their
visibility. (See 7 ER 1160-61 ¶ 41 (providing the text of the letter)).
The FAC claims that is potentially extortionate conduct, but that
assertion is contrary to Chaker’s well-established First Amendment
rights to resolve litigation through settlement.18
17 The analysis here does not mean to imply that a violation of

California Penal Code section 518 always constitutes generic
extortion.
18 In addition, many of the alleged racketeering acts took place in the

context of litigation. (See, e.g., 7 ER 1173 ¶ 91 (alleging that one of
the purposes of the alleged enterprise was to harass McMillan
because he opposed the enterprise’s members in litigation); 7 ER
1177-78 ¶¶ 103-05 (racketeering acts involving litigation between
Chaker and a McMillan-represented party)). California’s litigation
privilege thus immunizes those acts, barring them from being
predicate acts. See Premier Commc’n Network, Inc. v. Fuentes, 880
F.2d 1096, 1102-03 (9th Cir. 1989) (analyzing whether California’s
litigation privilege applies to a RICO claim); cf. Steinberg Moorad &
Dunn Inc. v. Dunn, 136 F. App’x 6, 12 (9th Cir. 2005) (questioning
the admission of “extortionate communications” as evidence of a
RICO violation because “it appears that . . . the extortionate
46
At the outset, the safeguarding of zealous advocacy is so
important that the law broadly protects demand letters and pre-
litigation communications. See Knoell v. Petrovich, 76 Cal. App. 4th
164, 169 (1999) (holding that California’s litigation privilege “has
been broadly construed to apply to demand letters and prelitigation
communications”); Lerette v. Dean Witter Organization, Inc., 60 Cal.
App. 3d 573, 577 (1976) (holding that it is “well established legal
practice” to communicate with adversary parties about settlement
and “warning of the alternative of judicial action”). Any allegation
that a settlement letter is somehow actionable is subject to the
strictest scrutiny.
Here, the alleged settlement communication does not meet any
standard for extortive conduct. First, the letter does not threaten
McMillan with anything. Rather, it references Chaker’s willingness
to compromise on various issues if McMillan’s client agreed to settle.
(See 7 ER 1160-61 ¶ 41). Such offers of mitigation or resolution
logically cannot be a threat. See Cal. Penal Code § 519 (defining, by
example, threats that constitute “[f]ear, such as will constitute
communications . . . are privileged . . . under Cal. Civ. Code section

47”).
47
extortion”). And without some sort of affirmative threat causing
McMillan to acquiesce voluntarily to the loss of some property right,
he cannot plead an extortionate act.
Second, the alleged object of the letter—and thus, the alleged
extortion—is a settlement. (See 7 ER 1160 ¶ 40 (claiming the letter
“threatens further actions against [McMillan] unless he convinced
his client . . . to grant [Chaker] concessions . . . .”). McMillan,
however, could not authorize the settlement, only his client could.
Cf. Cal. R. of Prof’l Conduct 1.4.1 (requiring lawyers to communicate
settlement offers to clients). Because McMillan could not give
Chaker the object of the alleged extortion, he did not plausibly plead
extortion. Cf. Malin v. Singer, 217 Cal. App. 4th 1283, 1299 (2013)
(threatening an unrelated third party does not constitute extortion
of the property owner). As to McMillan, therefore, the settlement
letter is not criminal extortion as a matter of law. See id.
Third, the demand letter is not extortionate because there is no
property alleged to have been extorted, as explained before. (See
discussion supra Section VI.A.2.a.) As a result, any predicate act
based on the settlement letter cannot, in fact, be extortionate and
thus a RICO-predicate.
48
3. The Ninth Circuit Can Affirm the District

Court’s Order Because of the FAC’s Failure to
Plead RICO Act Standing
There are other reasons to affirm the District Court’s order
beside the failure to plead a predicate act of extortion. For one, the
FAC fails to plead McMillan’s RICO Act standing. To plead statutory
RICO standing, a plaintiff must first show an injury to “business or
property by the conduct constituting the violation.” Sedima,
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). Next, the
plaintiff must demonstrate proximate cause between the injury and
the defendant’s conduct. Holmes v. Sec. Investor Prot. Corp., 503
U.S. 258, 268 (1992). The FAC alleges neither.
a. The FAC failed to allege that Chaker

injured any legally recognized business
or property interest
Under RICO, a “plaintiff only has standing if . . . he has been
injured in his business or property by the conduct constituting the
violation.” Sedima, 473 U.S. at 496. Standing is therefore available
only if there is an (i) an injury to (ii) business or property. See Diaz v.
Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc) (per curiam).
Taking the second requirement first, McMillan needed to show that
he suffered harm to a valid state-law property interest. Id. at 900.
49
But as previously explained, he has not. In California, for
theft-based offenses, an object is property if a person has “the
exclusive right to use or possess” it; that is, it is “susceptible of
possession or disposition.” People v. Kozlowski, 96 Cal. App. 4th 853,
866 (2002); see also People v. Kwok, 63 Cal. App. 4th 1236, 1250-51
(1998) (“[P]roperty is something that one has the exclusive right to
possess and use.”). But the FAC claims that the extorted property
interests were McMillan’s oft-stated iteration of intangible property
rights to practice law free of threats19 and to “publish court decisions
on the internet . . . .” (7 ER 1176 ¶ 99; see also 1 ER 14 (the district
court’s order) (noting that the FAC alleged only those property
rights)).20 But, for the same reasons that those supposed rights are
19 See, e.g., 7 ER 1174-75 ¶ 95 (“[The] intangible property right to

adequately represent victims in his practice of law and prosecute his
case on behalf of his clients free of threats . . . .”); 7 ER 1177 ¶ 101
(“[The] “intangible property right to practice law free of threats and
to practice in accordance with the California Rules of Professional
Conduct . . . .”).
20As discussed earlier, McMillan has largely abandoned those rights

in favor of property interests the district court did not discuss
because he did not allege them. Compare AOB 36-37 (identifying the
two “intangible property rights” and the goodwill of McMillan’s
“business and the TMLF website; [McMillan’s] identity and likeness;
and TMLF’s logo” as “the proprietary interests at issue”), with 7 ER
1174 ¶ 95 (alleging that the property the “Enterprise members”
50
not “obtainable,” they are also not “susceptible of possession or
disposition.” (See discussion supra Section VI.A.2.) No one has an
“exclusive right to use or possess” those rights, they are not
obtainable, they carry no other indicia of property, and no state law
defines them as such. Kozlowski, 96 Cal. App. 4th at 866 (emphasis
added). They are not property.
Moreover, for all practical purposes, McMillan fails to contest
those arguments, relying instead on a series of conclusory
statements. For example, McMillan argues that “California state
courts have given broad interpretation to the term ‘property’ for the
purposes of extortion.” (AOB 33). Yet even a “broad interpretation”
of property implies a legal standard for determining whether
something is property, and McMillan tests his alleged “property”
against no such standard.
intended to extort was McMillan’s “intangible property right to

adequately represent his victims . . . and prosecute his case . . . ”),
and 7 ER 1176-80 ¶¶ 99-109 (providing the alleged racketeering acts
and only mentioning McMillan’s intangible property right to practice
law and to publish cases on the internet). However, a motion to
dismiss tests a complaint’s allegations. See Twombly, 550 U.S. at
555 (discussing the plaintiff’s duty to provide the grounds of relief in
the complaint).
51
McMillan also argues that extortion, and thus RICO, covers
what he calls “intangible” property interests. (See AOB 37-39). Even
if true, that is not a standard against which to measure McMillan’s
claim either. Rather, it merely assumes that he has actually alleged
intangible property interests. And to the extent McMillan provides
a standard to determine what constitutes property, he provides the
wrong one: Chaker. (See AOB 40-41 (suggesting that McMillan’s
intangible rights had value as property because Chaker sought to
“return” them)). But what is relevant here is whether California—
not Chaker—recognizes a property right. McMillan offers no law
suggesting that his alleged rights constitute “property,” even if those
rights exist.
Ultimately, McMillan merely slaps a property label on his
personal interests in his reputation. (See, e.g., 7 ER 1181 ¶ 113
(asking the district court to order that Chaker remove his “harassing
and defamatory [internet] posts . . . .”; see also id. 1171 ¶ 80
(implying that “McMillan’s reputation” was something Chaker
damaged)). But merely saying something is a property interest does
not make it so. See Doe v. Roe, 958 F.2d 763, 768-70 (7th Cir. 1992)
(analyzing plaintiff’s purported property rights and concluding that

52
they were not so under state law). The FAC’s allegations of
reputational harm cannot support a RICO claim. See Stansfield v.
Starkey, 220 Cal. App. 3d 59, 70 n.13 (1990) (RICO Act offers no relief
for personal injury or loss of reputation); see also Hamm v. Rhone-
Poulanc Rorer Pharms., 187 F.3d 941, 954 (8th Cir. 1999) (“Damage
to reputation is generally considered personal injury and thus is not
an injury to ‘business or ‘property’” under the RICO Act). 21 Its
conclusory allegation that Chaker “injured Plaintiffs’ business
and/or property interests . . . including proximately causing concrete
financial losses” (7 ER 1175 ¶ 96) is simply a “formulaic recitation of
the elements” of a RICO claim, Twombly, 550 U.S. at 555. It is a
pleading strategy that cannot overcome a motion to dismiss. See id.
b. The FAC failed to allege proximate cause
To establish RICO standing, a plaintiff must also allege that
the defendant’s conduct actually and proximately caused the injury.
Holmes, 503 U.S. at 268. Allegations of “but for” cause alone do not
21 See also Wegner v. Wells Fargo Bank Nat’l Assn., Case No. 2:17-
CV-1429 JCM (PAL), 2018 WL 3114528, at *7 (D. Nev. June 25,
2018) (holding that defamation is not a predicate act under RICO);
Curtis & Assocs., 758 F. Supp. 2d at 169 n.19 (E.D.N.Y. 2010)
(“[D]efamation does not meet the definition of a RICO predicate
act . . . .”).
53
establish RICO standing. Sedima, 473 U.S. at 496-97.
Proximate cause exists where there is “some direct relation
between the injury asserted and the injurious conduct alleged.”
Holmes, 503 U.S. at 268; see also Hemi Grp., LLC v. City of New York,
559 U.S. 1, 2 (2010); Anza v. Ideal Steel Supply Corp., 547 U.S. 451,
461 (2006). Determining the existence of a direct relationship
requires denoting the “basis of the RICO violation” and the “alleged
harm.” Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 982
(9th Cir. 2008). Speculative assertions of harm lack the “direct
relation” the RICO Act requires. Pillsbury, Madison & Sutro v.
Lerner, 31 F.3d 924, 928-29 (9th Cir. 1994). Furthermore, a “direct
relation” cannot be attenuated, for “[t]he general tendency of the law,
in regard to damages at least, is not to go beyond the first step.”
Holmes, 503 U.S. at 271 (quoting Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 534 (1983)
(quoting another source)).
Here, the FAC failed to plead the existence of a “direct
connection” between Chaker’s conduct and McMillan’s injury. As a
fundamental matter, the FAC cannot have pled proximate cause
because it did not allege any RICO predicate acts. See Anza, 547
54
U.S. at 458 (nothing that “[t]he proper referent of the proximate-
cause analysis is” to the predicate acts alleged); see supra Section
VI.A.2. Where no predicate acts are alleged, it follows that
proximate cause has not been alleged.
Even assuming properly pled predicate acts, the connection
between the acts and the alleged harm stemming from them is too
attenuated. The basis for the alleged RICO violation is Chaker’s
alleged extortion of McMillan’s “intangible” property. (See 7 ER
1176-80 ¶¶ 99-109 (providing the racketeering allegations)). The
alleged resulting injury is “tangible harm to [McMillan’s] business
and concrete financial losses.” (Id. 1175 ¶ 95; see also id. ¶ 96
(reiterating the same harm)). But the alleged link between them is
that “[o]pposing counsel [and] [c]lients have mentioned the existence
of the [defamatory] posts and their content.” (Id. 1171 ¶ 80). The
FAC alleges, on McMillan’s belief alone, “that jurors that [he] has
tried cases in front of have accessed the posts and taken them into
account in determining the cases.” (Id.) 22
22 Because the allegation is premised on faith, not fact, it is not

relevant to the Rule 12 analysis. See Iqbal, 556 U.S. at 679.
55
Those allegations cannot establish proximate causation. First,
McMillan’s claim relies on the alleged effect of Chaker’s statements
on McMillan’s reputation. But injuries to McMillan’s reputation are
derivative of personal injuries—not an injury to property or to
business—and thus cannot support RICO standing. See Doe, 958
F.2d at 770 (purchasing a security system in response to threats is
“derivative[] of [plaintiff’s] emotional distress” and is therefore a
personal injury).
Second, far from establishing proximate cause, those
allegations refute McMillan’s claims of proximate cause and injury:
The very existence of opposing counsel, clients, and jury trials all
mean McMillan practices law—the opposite of the injury the FAC
alleges. (7 ER 1175 ¶¶ 95-96).
Third, the harm McMillan claims is more than a “single step”
from the alleged conduct. See Hemi Grp., 559 U.S. at 10. Assume,
for example, that McMillan’s “injuries” occurred because he lost
cases after jurors read and “[took Chaker’s statements] into account
in determining cases.” (7 ER 1171 ¶ 80). “Took into account” implies
that Chaker’s statements, even if jurors heard them, would have
been only one factor of a far more complex analysis. Other variables
56
at play include the weight of the evidence and the credibility of the
witnesses. McMillan’s allegations merely assume that his losses are
attributable to Chaker, and only to Chaker.
Those causal factors are far more complex than McMillan
would like to admit, but this Court need not concern itself with
sorting them out because doing so would require going “well beyond
the first step” in a chain of causation. Hemi Grp., 559 U.S. at 10.
Victory or defeat in litigation involves a near-infinite number of (1)
actors—the judge, opposing counsel, clients, witnesses, and so on—
(2) actions—McMillan’s and opposing counsel’s conduct of the case,
rulings on evidentiary motions, and so on—and (3) intangibles—the
skills of McMillan and his counsel, witness credibility, and so on.
The analysis is extensive and requires a number of intervening
factors and links in the chain of causation. Most importantly here,
that McMillan’s claim would require such analysis means that he
“cannot meet RICO’s direct relationship requirement.” Id.
All of that reveals a deeper problem with the FAC’s allegations.
The complex causal factors the FAC hints at actually illustrate many
obvious and innocent explanations for McMillan’s business losses.
Yet McMillan’s burden was to plead facts showing that Chaker’s

57
actions, not those “obvious alternative explanation[s]” caused his
injuries—to establish, in short, that this is not McMillan’s desperate
attempt to abuse the RICO statute to salvage his reputation, or his
failing law firm. See Iqbal, 556 U.S. at 682. In failing to meet that
burden, McMillan failed to state a plausible claim for relief. See
Twombly, 550 U.S. at 568-69 (noting that “an obvious alternative
explanation” to an antitrust conspiracy means that a complaint fails
to state such a conspiracy).
4. The FAC Failed to Plead a RICO Enterprise

or Sufficient Racketeering Activity
The FAC lacks yet other necessary elements of a section 1962(c)
RICO claim, namely, allegations of an enterprise and a pattern of
racketeering activity. See Eclectic Properties E., 751 F.3d at 997;
Canyon Cty., 519 F.3d at 972; see also Odom, 486 F.3d at 547 (“To
state a claim under § 1962(c), a plaintiff must allege ‘(1) conduct (2)
of an enterprise (3) through a pattern (4) of racketeering activity.’”
(quoting Sedima, 473 U.S. at 496)). As to those elements, the FAC
relies on conclusory allegations, verbatim recitations of statutory
elements, and references to irrelevant materials insufficient to make
a plausible claim for relief. See, e.g., Twombly, 550 U.S. at 555
58
(requiring more than “a formulaic recitation of the elements of a
cause of action” to sustain a complaint against a motion to dismiss).
a. The FAC failed to allege a RICO

enterprise
A successfully-pled RICO claim must allege the existence of an
enterprise devoted to certain defined criminal activities. A RICO
“enterprise” may be a legal entity or an association-in-fact. 18 U.S.C.
§ 1961(4). A plaintiff seeking to show the existence of an association-
in-fact enterprise must properly allege the requisite structure: “a
purpose, relationships among those associated with the enterprise,
and longevity sufficient to permit those associates to pursue the
enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 945-47
(2009); see also Eclectic Properties E., 751 F.3d at 997; Odom, 486
F.3d at 551-52. The pleading must allege “evidence of an ongoing
organization, formal or informal” or “evidence that the various
associates function as a continuing unit.” United States v. Turkette,
452 U.S. 576, 583 (1981); see also Odom, 486 F.3d at 552 (quoting
id.). Nor does proof of racketeering constitute proof of an enterprise:
“[t]he ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an
entity separate and apart from the pattern of activity in which it
59
engages.” Turkette, 452 U.S. at 583; see also Coyotzi v. Countrywide
Fin. Corp., Case No. CV F 09-1036 LJO SMS, 2009 WL 2985497, at
*15 (E.D. Cal. Sept. 16, 2009) (providing the same quote). Thus,
“proof of one does not necessarily establish the other.” Id. Finally,
“Ninth Circuit law is clear that a RICO person may not be held
directly liable under § 1962(c) when it and the RICO enterprise are
identical.” Sea-Land Serv., Inc. v. Atlantic Pac. Int., Inc., 57 F. Supp.
2d 1048, 1056 (D. Haw. 1999).
To the extent the FAC alleges any relationship between the
defendants, it alleges only familial and attorney-client relationships
that fall far short of a RICO association-in-fact. For example, the
FAC alleges that Chaker’s sister acted as his attorney in certain
litigation, but does not explain why that relationship constitutes an
“association-in-fact” enterprise. (See, e.g., 7 ER 1143-44 ¶¶ 10-11). 23
23 McMillan also attacks Vania Chaker for filing various consumer

protection lawsuits on her own behalf, attributing to Vania nefarious
motives for doing so. (7 ER 1143 ¶ 10). Whatever Vania’s motive or
the result, McMillan never provides a connection to Chaker or Nicole
Chaker. Thus, he fails to allege the existence of an association-in-
fact enterprise. See Turkette, 452 U.S. at 583. And the filing of
litigation—even meritless or, in extreme cases, malicious litigation—
is not a RICO predicate act in any event. See FindTheBest.com,
Inc. v. Lumen View Tech. LLC, 20 F. Supp. 3d 451, 457 (S.D.N.Y.
60
There is no allegation, for example, of the enterprise’s common
purpose.24 Nor did the FAC plead that the association between the
two had the longevity necessary to accomplish the enterprise’s
purposes. Rather, it appears that McMillan thinks that every
attorney-client relationship is, without more, an association-in-fact.
That is a thin, implausible, and dangerous reed on which to rest a
RICO claim.
McMillan’s allegations involving Chaker’s mother, Nicole
Chaker, are flimsier still. He alleges that she assisted Chaker with
certain submissions in the family law matters to which Chaker was
a party, and with the mailing of a certain letter. (See, e.g., 7 ER 1159
¶¶ 40(g)-(i)). That is literally all McMillan offers to support the
existence of a RICO association-in-fact enterprise between the two;
2014) (“[T]he filing of meritless litigation is not a RICO predicate

act.”).
24And when the FAC attempts to do so, it is incoherent. As just one

example, it notes the RICO statutory prohibition against the
“collection of unlawful debt” and similar phrases, but alleges that
Vania Chaker’s consumer protection lawsuits were brought to
prevent unlawful debt collection practices by others. (See 7 ER 1143
¶ 10 (“Defendant VANIA brought a class action complaint for
violation [sic] of the Fair Debt Collections Practices Act . . .”)
(emphasis added)). Thus, McMillan’s bizarre claim is that the
Chakers violated RICO by shaking down debt collectors.
61
there are no common purposes or longevity allegations, nor
allegations of any “enterprise” outside of normal familial
relationships. Finally, there no allegations linking the three
individual defendants beyond their familial relationship.
To underscore the FAC’s insufficiency on this point, consider
the paradigmatic RICO enterprise: a hierarchical criminal
organization. There might be, for example, a group controlling and
facilitating constituent criminal organizations. See United States v.
Salerno, 868 F.2d 524, 528 (2d Cir. 1989) (describing the
“‘Commission’ of La Cosa Nostra”). Each constituent organization
might have a boss, who is above one or more underbosses or a
consigliere. See id. There might be a corporate entity in the chain.
Id. There might even be unknown individuals. See U.S. Dep’t of
Justice, Criminal RICO: 18 U.S.C. §§ 1961-1968: A Manual for
Federal Prosecutors, 303 n.365 (6th ed. 2016). Yet there is a
structure: a leader with underlings where each has a defined role in
an active and self-perpetuating organizational structure where, as
members of the criminal machine leave, are arrested, or die, others
take their place.
62
By contrast, the FAC twists mere familial relationships by
reframing them with conclusory (and loaded) words like “assist” or
“conspire” or “accompanied.” (See, e.g., 7 ER 1155 ¶ 32 (“Plaintiff is
informed and believes . . . that [Vania Chaker] accompanied
[Chaker] during that vandalism.”); id. 1173 ¶ 91 (“The common
purpose of the Enterprise members was to assist each other in the
filing of false and meritless lawsuits . . . .”); id. (“Enterprise members
also assisted each other in committing vandalism . . . .”); id. 1182
¶¶ 116-17 (alleging a RICO conspiracy among the family)).
However, claiming that the Chakers are the Corleones does not
make it so—not in life, and not for pleading purposes. See Iqbal, 556
U.S. at 679 (pleadings that “are no more than conclusions, are not
entitled to the assumption of truth” when analyzing a complaint
under a motion to dismiss); see also Coyotzi, 2009 WL 2985497, at
*15 (dismissing RICO complaint for lacking “sufficient allegations of
an ongoing organization that functions as a unit”). Indeed, by
alleging that the Chakers are the RICO enterprise, the FAC
implicitly pleads that “[the RICO person] and the RICO enterprise
are identical,” thus falling short of its pleading burden on that point
as well. Sea-Land Serv., 57 F. Supp. 2d at 1055-56; see also Myers v.

63
Lee, Case No. 1:10-CV-131 (AJT/JFA), 2010 WL 3745632, at *3 (E.D.
Va. Sept. 21, 2010).
In sum, permitting McMillan’s bare allegations to support a
RICO cause of action here would expand the RICO Act in ways
contrary to Congressional intent and common sense. 25 If the FAC
sufficiently pleads a RICO enterprise, then every lawyer and law
firm, and every family, no matter how disparately or infrequently
connected, is open to allegations that it is a RICO enterprise merely
by dint of familial, social, or commercial interaction. Plaintiffs, like
McMillian, with a personal beef are then free to use the RICO Act to
attack some of the most important and trusting interpersonal
relationships that any American can enjoy—the familial relationship
and the attorney-client relationship. See Upjohn Co. v. United
25 Conceivably, a lawyer could form, in a given factual context, part

of an “ongoing” RICO organization. Turkette, 452 U.S. at 593
(holding that RICO covers legitimate businesses). And a lawyer and
other lawyers or paralegals and legal assistants might evidence
“various associates function[ing] as a continuing unit.” Id. But
“conceivability” is not the pleading standard. Plausibility is. A
lawyer assisting a party who is also her brother (or a mother
assisting a son), in family law or consumer protection proceedings,
as the FAC alleges, fails to establish even the minimum description
of a RICO enterprise, no matter how far it goes in torturing the words
“enterprise” and “association.”
64
States, 449 U.S. 383, 389 (1981) (noting that the attorney-client
privilege “promote[s] broader public interests”); Moore v. City of E.
Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion) (“When a city
undertakes such intrusive regulation of the family . . . the usual
judicial deference to the legislature is inappropriate.”) Congress
enacted the RICO Act to eliminate “infiltration of organized crime
and racketeering into legitimate organizations operating in
interstate commerce.”26 RICO was not enacted to give McMillan—
or anyone else—a legal cudgel to settle personal scores.
b. The FAC failed to allege acts of

racketeering in connection with the
conduct of an enterprise
An alleged RICO violation under Section 1962(c) requires the
plaintiff to demonstrate that racketeering acts have been committed
“in connection with the conduct of an enterprise.” Sedima, 473 U.S.
at 497. The connection requirement entails some kind of
“relationship between the enterprise and the racketeering activity.”
Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 195 (9th Cir.
1987). Such a connection exists when the racketeering activity stems
26S. Comm. on the Judiciary, Report on Organized Crime Control

Act of 1969, S. Rep. No. 617, 91st Cong. 1st Sess. 122 (1969).
65
from the “enterprise’s activities or otherwise [has] some relationship
to the enterprise.” Gonzales v. Lloyds TSB Bank, PLC, 532 F. Supp.
2d 1200, 1212 (C.D. Cal. 2006) (quoting id.).
Here, not only is there no alleged enterprise, the FAC fails to
allege that Chaker committed “the predicate acts by means of, by
consequence of, by reason of, by the agency of, or by the
instrumentality of his association with the [Chaker enterprise].”
United States v. Marino, 277 F.3d 11, 27 (1st Cir. 2002). Rather, it
states that “a common purpose” of the enterprise was to “obtain
[McMillan’s] property.” (7 ER 1172 ¶ 88). Besides being mere
conclusion, the concept is absurd: what could be the possible
relationship between the alleged Chaker enterprise and McMillan’s
right to practice law free of threats and to publish court cases on the
internet? Not even McMillan has a plausible answer.
c. The FAC failed to allege a “pattern” of

racketeering activity
To state a RICO civil claim, a complaint must also allege a
pattern of racketeering activity—that is, at least two predicate
racketeering acts. Sanford v. Memberworks, Inc., 625 F.3d 550, 557
(9th Cir. 2010). Here, the FAC alleges no actionable predicate acts,
66
but even if it had, the alleged “pattern” is not “related and
continuous.” Steam Press Holdings, Inc. v. Haw. Teamsters, Allied
Workers Union, Local 996, 302 F.3d 998, 1011 (9th Cir. 2002).
Predicate acts are “related” when the “criminal
conduct . . . embraces criminal acts that have the same purposes,
results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are
not isolated events.” H.J. Inc. v. Nw. Bell Telephone, 492 U.S. 229,
240 (1989).
“Continuity” requires “a series of related predicates extending
over a substantial period of time, i.e., closed-ended continuity, or past
conduct that by its nature projects into the future with a threat of
repetition, i.e., open-ended continuity.” Howard v. Am. Online, Inc.,
208 F.3d 741, 750 (9th Cir. 2000) (citations omitted); see also
Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995). “Open-
ended continuity is the threat that criminal conduct will continue
into the future” and can be demonstrated by “a specific threat of
repetition extending indefinitely into the future” or that predicate
acts are “part of an ongoing entity’s regular way of doing business.”
Allwaste, 65 F.3d at 1527 (quoting H.J., 492 U.S. at 242).

67
Moreover, there is no continuity where the defendant’s
“conduct is in a sense a single episode having [a] singular purpose.”
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535 (9th Cir. 1992).
That was the case in Medallion Television Enterprises, Inc. v.
SelecTV of California, Inc., 833 F.2d 1360 (9th Cir. 1987). There, the
plaintiff had alleged at least two RICO predicate acts. Id. at 1364.
Both acts furthered a single end: fraud. Id. As a result, there was
no continuity. Id. at 1365.
Besides making mere conclusory, and therefore insufficient,
allegations, the FAC’s allegations of relatedness and continuity are
illogical. Take relatedness first. McMillan claims to have alleged
relatedness because “the predicate acts were related to each other,
and related to the activities and purposes of the Enterprise.” (7 ER
1175 ¶ 98). Yet the relation between the predicate acts—which
involve different actions, at different times, and different
combinations of the Chaker family—is McMillan. Thus, what the
FAC argues is “relatedness” is in truth McMillan’s admission that he
is a single victim. Yet where there is a single victim of an alleged
scheme, there is no continuity. Medallion, 833 F.2d at 1364; see also
Sever, 978 F.2d at 1535 (noting that a scheme with a single purpose
68
and the same victim lacks continuity). Thus, what the FAC pleads
to show relatedness also demonstrates a lack of continuity, and thus
no pattern of racketeering activity.
Likewise, the FAC cannot show continuity without
undermining relatedness. The FAC claims that the alleged
enterprise’s “extortionate conduct toward attorneys who represented
clients against [Chaker]” was “the ‘regular way the enterprise
conducted its business’ . . . and thus constitute[s] continuing
racketeering activity.” (7 ER 1175-76 ¶ 98). However, the cross-
referenced alleged conduct showing the “regular way the enterprise
conducted its business” varies. One allegation involved Chaker
sending an attorney a fax containing threats and personal
information. (Id. 1153-54 ¶ 28(d)). Another involved Chaker using
an attorney’s name to set up a website. (Id. 1170-71 ¶ 79). Those
two allegations are quite different from the FAC’s allegations
regarding Chaker’s supposed extortionate conduct toward McMillan.
(Compare, e.g., id. 1155-56 ¶¶ 32-34 (alleging threats and property
damage), and id. 1163-64 ¶¶ 49-52 (sending emails with allegations
of child molestation)). Nor do the prior two acts involve Vania or
Nicole Chaker. Indeed, in pleading continuity, McMillan simply

69
ignores those two. (See id. 1175-76 ¶ 98 (“[T]he FAC describes that
the extortionate conduct towards attorneys who represented clients
against him [presumably, Chaker] was the ‘regular way the
enterprise conducted its business’ . . . .” (emphasis added)). In
pleading continuity, McMillan relies on different acts, involving
different people, and excluding the other two members of the
supposed RICO enterprise. Any alleged acts showing continuity thus
demonstrate the lack of relatedness, and therefore the lack of a
pattern of racketeering activity.
In short, McMillan’s pleading of relatedness and continuity are
mutually exclusive. To accept one means rejecting the other. As a
result, McMillan failed to plead a pattern of racketeering.
B. NOERR-PENNINGTON IMMUNITY BARS THE
CLAIMS ASSERTED IN THE FAC
Noerr-Pennington immunity offers another basis for
affirmance. Rooted in the First Amendment, the doctrine
“immunizes petitions directed at any branch of government,
including . . . judicial . . . agencies.” Manistee Town Ctr. v. City of
Glendale, 227 F.3d 1090, 1092 (9th Cir. 2000). Thus, civil RICO
liability cannot attach to petitioning activity. See Sosa v. DirectTV,

70
Inc., 437 F.3d 923, 942 (9th Cir. 2006) (“[W]e hold [under Noer-
Pennington] that RICO and the predicate statutes at issue here do
not permit the maintenance of a lawsuit for the sending of a
prelitigation demand to settle legal claims that do not amount to a
sham.”). Moreover, to ensure “breathing space” for free speech,
petitioning activity is broader than just petitions to the court. See
BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516, 531 (2002) (refusing
to classify an “entire class of objectively baseless litigation” as
outside Noerr-Pennington). Thus, in the litigation context,
“[c]onduct incidental to the prosecution of [a] suit” that is related to
the suit falls within Noerr-Pennington’s ambit. Sosa, 437 F.3d at
934-35 (quoting Columbia Pictures Indus., Inc. v. Professional Real
Estate Investors, Inc., 944 F.2d 1525, 1528-29 (9th Cir. 1991), aff’d
508 U.S. 49 (1993)).
Here, McMillan’s extortion claims rest in large part upon
“communications between private parties” in a lawsuit. As the FAC
alleges, the so-called RICO enterprise’s purpose as to McMillan was
to “conduct a campaign of harassment, defamation, and extortion
against attorneys, such as Plaintiffs, who represented parties
adverse to the interest of the Enterprise members.” (7 ER 1173

71
¶ 91). Likewise, most of the alleged acts of racketeering occurred
during litigation between McMillan’s client and Chaker. (Id. 1176-
80 ¶¶ 101-109). 27 Indeed, a settlement letter underlies alleged
racketeering acts four and five. Both predicate acts claim as the
extortionate threat a communication “demanding [McMillan] to
convince Susan A. to grant [Chaker] concessions in the paternity
case.” (Id. 1177-78 ¶¶ 103-04; see also id. 1160 ¶ 41 (quoting the
letter, which says it is “a request to settle pending claims . . .”). In
short, the actions underlying the alleged racketeering predicates
center on litigation. They are therefore constitutionally-protected
petitioning activity and receive Noerr-Pennington protection. See
Sosa, 437 F.3d at 942 (applying Noerr-Pennington to find that
prelitigation settlement demand letters cannot support a RICO
claim in order “to avoid burdens on activity arguably falling within
the scope of the Petition Clause”).
27Litigation, moreover, into which McMillan inserted himself, thus

making it necessary for Chaker to communicate with him. (See 7 ER
1171 ¶¶ 80-83).
72
C. THE RICO CONSPIRACY FALLS WITH THE FAC’S
FAILURE TO PLEAD A SUBSTANTIVE RICO
CLAIM
The FAC also alleged RICO conspiracy claims under 18 U.S.C.
§ 1962(d). (7 ER 1182-83 ¶¶ 115-19). The district court dismissed
this claim as well, noting that there can be no RICO conspiracy
absent a substantive RICO claim. (1 ER 14-15). The district court
is right; it is clear, well-settled, and logical that if plaintiffs “do not
adequately plead a substantive RICO violation,” there cannot be a
conspiracy to commit the nonexistent violation. Howard, 208 F.3d
at 751; see also Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367
n.8 (9th Cir. 1992) (per curiam) (“Because we find that RTC has
failed to allege the requisite substantive elements of RICO, the
conspiracy cause of action cannot stand.”). Because the FAC fails to
allege a substantive RICO claim, it fails to allege a RICO conspiracy
as well.
Indeed, that a RICO conspiracy only exists to commit a
substantive RICO offense is implicit in Salinas v. United States, 522
U.S. 52 (1997), which McMillan cites with much sound and fury.
McMillan is right that Salinas held a person can violate RICO’s

73
conspiracy provision even if he “does not himself commit or agree to
commit the two or more predicate acts requisite to the underlying
offense.” Id. at 65. But what McMillan ignores is that “[a]
conspirator must intend to further an endeavor which, if completed,
would satisfy all of the elements of a substantive criminal
offense . . . .” Id. In short, conspiracies do not exist in a vacuum;
they exist to accomplish something. In the context of RICO, that
“something” must be a RICO violation. See id. at 66 (noting “that
Salinas knew about and agreed to facilitate” racketeering activity).
All Salinas stands for is that a conspirator need not actually commit
the predicate act to be part of the conspiracy—an issue not relevant
to the analysis here.
Ultimately, McMillan’s claim that he adequately pled a RICO
conspiracy signifies nothing but an exercise in question begging. For
a properly pled RICO conspiracy to exist, there must be a properly
pled RICO substantive act animating the conspiracy. McMillan
avoids addressing the underlying premise—what racketeering
act?—merely by assuming the existence of one. (See AOB 60
(claiming that Vania Chaker “was part of the Enterprise alleged in
the FAC”); see also id. at 61 (“Here, the substantive RICO violation,
74
in violation of Section 1962(c) was adequately pleaded, but,
arguendo, even if not, the District Court erred in not analyzing
whether Vania and/or Nicole are liable as co-conspirators, i.e., failing
to determine whether an agreement by Appellees to violate the
substantive provision of RICO existed.”) (emphasis added)).
Assumptions and conclusions are not sufficient to plead a claim, so
the district court properly dismissed the section 1962(d) cause of
action.
D. THE DISTRICT COURT PROPERLY DISMISSED
MCMILLAN’S STATE LAW CLAIM
McMillan raises no arguments unique to his state extortion
claim. Instead, he argues it stands or falls with his federal RICO
extortion argument. (AOB 53-54). This Court should take him at
his word and affirm the District Court’s dismissal on that basis.
Regardless, the District Court did not abuse its discretion by
dismissing McMillan’s state law claim. After dismissing the federal
RICO claims, the district court had the discretion to dismiss the
pendent state claim. 28 U.S.C. § 1367(c)(3); Schultz v. Sundberg, 759
F.2d 714, 718 (9th Cir. 1985) (“When federal claims are dismissed
before trial, the question whether pendent state claims should still
75
be entertained is within the sound discretion of the district court”).
Here there was no abuse of discretion; “‘the balance of factors to be
considered . . . will point towards declining to exercise jurisdiction’
over state law claims when all federal claims have been dismissed.”
Notrica v. Bd. of Supervisors, 925 F.2d 1211, 1213-14 (9th Cir. 1991)
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)).
VII. CONCLUSION
McMillan’s pleading is as intangible and inscrutable as the
property he claims Chaker extorted from him. Chaker respectfully
asks this Court to affirm the District Court’s decision dismissing the
FAC for failure to state a claim under Rule 12.

Stephen G. Larson
Jerry A. Behnke
Steven A. Haskins
Michael E. Talent
Attorneys for Defendant and Appellee

DARREN D. CHAKER an individual,
and as trustee of PLATINUM
HOLDINGS GROUP TRUST, dba
COUNTER FORENSICS
76
STATEMENT OF RELATED CASES
Pursuant to 9th Circuit Rule 28-2.6, counsel for Appellee
Darren D. Chaker hereby indicates that the only related case
pending before this Court that he is aware of is:
• Scott A. McMillan et al. v. Nicole Chaker, No. 18-55343.
The case involves the same transaction or events as this case
and, since it is Nicole Chaker’s cross-appeal of the district court’s
denial of her motion to strike, arises out of the same case district
court case.

Stephen G. Larson
Attorney for Defendant and

PLATINUM HOLDINGS
GROUP TRUST, dba
COUNTER FORENSICS
77
CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP.

P. RULES 5(c)(1) & 32(A)(7)(C) AND CIRCUIT RULE 32-1
Pursuant to the Federal Rules of Appellate Procedure, rules
5(c)(1) and 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the
attached petition is proportionally spaced, has a typeface of 14 points
and does not exceed 13,039 words.

Stephen G. Larson
Attorney for Defendant and

PLATINUM HOLDINGS
GROUP TRUST, dba
COUNTER FORENSICS
78
PROOF OF SERVICE
I am a citizen of the United States. My business address is

Larson O’Brien LLP, 555 S. Flower Street, Suite 4400, Los Angeles,
CA 90071. I am employed in the County of Los Angeles where this
service occurs. I am over the age of 18 years, and not a party to the
within cause. My electronic email address is
ygutierrez@larsonobrienlaw.com.
On the date set forth below, according to ordinary business

practice, I served the foregoing document(s) described as:
APPELLEE DARREN CHAKER’S ANSWERING BRIEF
(BY TRUEFILING ELECTRONIC SERVICE) On this date, a

true and correct copy of the above-referenced document(s) was
electronically served on counsel by means of transmitting the
document through the TrueFiling website portal.
(BY OVERNIGHT DELIVERY) On this date, I placed the

documents in envelope(s) addressed to the person(s) on the attached
service list, and caused those envelopes to be delivered to an
overnight delivery carrier, with delivery fees provided for, for next-
business-day delivery to whom it is to be served.
I declare under penalty of perjury under the laws of the State

of California that the foregoing is true and correct.
Executed on January 18, 2019 at Los Angeles, California.
/s/ Yvonne Gutierrez

Yvonne Gutierrez
79
SERVICE LIST
Scott A. McMillan Attorneys for Scott A. McMillan, an

The McMillan Law Firm individual
4670 Nebo Drive, STE 200
La Mesa, CA 91941
Rebecca Jo Smith Attorneys for Nicole Chaker, an

Timothy W. Kenna individual, and trustee of Nicole
Freeman Mathis & Gary, LLP Chaker Trust One
550 S. Hope Street, 22nd Floor
Los Angeles, CA 90071
Ryan G. Baker Attorneys for Vania Chaker, an

Teresa Huggins individual and as beneficiary of the
Baker Marquart, LLP Island Revocable Trust under
2029 Century Park East Declaration of Trust dated June 2,
Ste 1600 2015
Los Angeles, CA 90067
Attorneys for Marcus Mack, as trustee
of the Island Revocable Trust under
Declaration of Trust dated June 2,
2015
VIA OVERNIGHT DELIVERY ONLY
Hon. William Q. Hayes

United Stated District Court
Southern District of California
333 West Broadway, Suite 1480
San Diego, CA 92101
80

Darren Chaker Civil RICO

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Darren Chaker Civil RICO

Hochgeladen von

Copyright:

Verfügbare Formate

Case: 17-56676, 01/18/2019, ID: 11159769, DktEntry: 84, Page 1 of 80

UNITED STATES COURT OF APPEALS

DARREN D. CHAKER, an individual, and as trustee of

From the United States District Court Southern District of

APPELLEE DARREN CHAKER’S ANSWERING BRIEF

*Stephen G. Larson, SBN 145225

Attorneys for DARREN D. CHAKER an individual and as trustee of

II. STATEMENT OF JURISDICTION ....................................... 13

III. ISSUES PRESENTED FOR REVIEW ................................... 14

IV. STATEMENT OF THE CASE ................................................ 16

A. STATEMENT OF FACTS ............................................. 16

1. McMillan’s Publication of Zaya v. Chaker and

2. Chaker’s Alleged Web Activities ............................ 19

3. McMillan’s Intervention in Chaker’s Lawsuits and

4. Alleged Emails ........................................................ 23

B. PROCEDURAL HISTORY ............................................ 24

1. The Complaint ........................................................ 24

2. The District Court Dismisses McMillan’s Meritless

V. SUMMARY OF ARGUMENT ................................................ 30

VI. LEGAL ARGUMENT ............................................................. 32

A. THE FAC FAILS TO ALLEGE A SECTION 1962(c)

1. Standards for Analyzing Whether a RICO Cause of

2. This Court Should Affirm the District Court’s

3. The Ninth Circuit Can Affirm the District Court’s

4. The FAC Failed to Plead a RICO Enterprise or

B. NOERR-PENNINGTON IMMUNITY BARS THE

C. THE RICO CONSPIRACY FALLS WITH THE FAC’S

D. THE DISTRICT COURT PROPERLY DISMISSED

Allwaste, Inc. v. Hecht,

Anza v. Ideal Steel Supply Corp.,

Balisteri v. Pacifica Police Dep’t,

BE & K Constr. Co. v. N.L.R.B.,

Bell Atl. Corp. v. Twombly,

Boyle v. United States,

Canyon County v. Syngenta Seeds, Inc.,

Christie v. Tuesday Morning, Inc.,

Coyotzi v. Countrywide Fin. Corp.,

Curtis & Assocs. v. Law Offices of David M. Bushman,

Eclectic Props. E., LLC v. Marcus & Millichap Co.,

FindTheBest.com, Inc. v. Lumen View Tech. LLC,

Gonzales v. Lloyds TSB Bank, PLC,

H.J. Inc. v. Nw. Bell Telephone,

Hamm v. Rhone-Poulanc Rorer Pharms.,

Hemi Grp., LLC v. City of New York,

Holmes v. Sec. Investor Prot. Corp.,

Howard v. Am. Online, Inc.,

Lerette v. Dean Witter Organization, Inc.,

Levitt v. Yelp! Inc.,

Manistee Town Ctr. v. City of Glendale,

Medallion Television Enterprises, Inc. v. SelecTV of

Moore v. City of E. Cleveland,

Notrica v. Bd. of Supervisors,

Odom v. Microsoft Corp.,

Pillsbury, Madison & Sutro v. Lerner,

Premier Commc’n Network, Inc. v. Fuentes,

Religious Tech. Ctr. v. Wollersheim,

Salinas v. United States,

Sanford v. Memberworks, Inc.,

Scheidler v. National Organization for Women, Inc.,

Sea-Land Serv., Inc. v. Atlantic Pac. Int., Inc.,

Sedima, S.P.R.L. v. Imrex Co., Inc.,

Sekhar v. United States,

Sever v. Alaska Pulp Corp.,

Sosa v. DirectTV, Inc.,