143-1 doyne memo

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1 CHRISTOPHER J. ZOPATTI, Esq. (SBN 129497) JOAN E. TRIMBLE, Esq. (SBN 205038)

2 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 2601 Main Street, Suite 800

3 Irvine, California 92614 Tel: (619) 222-5700

4 Fax: (619) 232-2206 Email: czoattictsclaw.com

5 tnm e ctsc aW.com

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Attorne),s for Defendant STEPHEN E. DOYNE, PH.D, and STEPHEN E. DOYNE, A Psychological Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.,

Plaintiff,

vs.

SAN DIEGO COUNTY BAR ASSOCIATION, et al.,

Defendants.

Case No.: 13cv1944 CAB (BLM) Judge: Hon. Cathy Ann Bencivengo

Complaint Filed: August 20,2013

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT

Date: June 6, 2014 Time: 2:00 p.m. Courtroom: 4C

rNO ORAL ARGUMENT UNLESS --_________ ------l REQUESTED BY THE COURT.]

(l3cv1944 CAB (BLM» MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS

Case 3:13-cv-01944-CAB-BLM Document 143-1 Filed 04/11/14 of 12

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(13cv1944 CAB (BLM»

- 1 -

SUPPLEMENTAL BRIEF OF STEPHEN E. DOYNE'S IN SUPPORT OF MOTION TO DISMISS


1 1. INTRODUCTION

2 STEPHEN E. DOYNE, PH.D. and STEPHEN E. DOYNE, A Psychological

3 Corporation (collectively referred to as Dr. DOYNE) file this supplemental brief

4 concurrently with a joinder in the defense omnibus motion to dismiss pursuant to the

5 court's order of February 26, 2014. In addition to the relief sought by way of the

6 joinder in the omnibus motion to dismiss, Dr. DOYNE requests this Court dismiss

7 this action pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) because the

8 acts alleged against Dr. DOYNE are time barred. The underlying acts began in

9 2008, the alleged breach by Dr. DOYNE occurred in March 1, 2009 and the SDCBA

10 incident occurred on April 15, 2010. [Amended Complaint ~~ 109, 818.] The

11 amended complaint fails to set forth grounds for equitable tolling of the statute of

12 limitations, and instead sets forth facts that undermine the alleged grounds for

13 tolling. The applicable statutes of limitation therefore bar this lawsuit in its entirety.

14 Dr. DOYNE also is immune from suit in this matter pursuant to the doctrines of

15 domestic relations exception, Rooker-Feldman, and quasi-judicial immunity.

16 2. STATEMENT OF THE CASE

17 Plaintiffs appear to assert the following categories of causes of action against

18 Dr. DOYNE i: (1) Violation of 42 U.S.C. sections 1983, 1985, and 1986; (2)

19 California state law claims including assault and battery, breach of contract,

20 wrongful inducement to breach of contract, unjust enrichment, interference with

21 economic relations, defamation, fraud, Business & Professions Code section

22 172000, extortion, bribery, and intentional infliction of emotional distress; (3)

23 Violation of 15 U.S.C. section 1125, the Lanham Act; (4) Violation of 18 U.S.C.

24 section 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act

25 ("RICO"); and (5) Prospective relief pursuant to 28 U.S.C. section 2201 and 18

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1 As set forth in the omnibus motion to dismiss, plaintiffs' violation ofFRCP Rule 8 makes it difficult to discern which causes of action are asserted against which parties.

(l3cv1944 CAB (BLM» - 1 -

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS


1 U.S.C. section ISI4(b).

2 Dr. DOYNE is a psychologist licensed by the state of California who

3 performs forensic psychology and child custody evaluation/mediation services.

4 [Amended Complaint ~~ 47-48.] Dr. DOYNE was court appointed to act as

5 mediator in Mr. STUART's dissolution case. [Request for Judicial Notice ("RJN") ~

6 1; Amended Complaint ~~ 809-814.] The amended complaint alleges that Dr.

7 DOYNE and Mr. STUART entered into a written agreement wherein Dr. DOYNE

8 would provide mediation services related to Mr. STUART's dissolution

9 proceedings, and that at some unspecified time prior to March 1,2009, Dr. DOYNE

10 breached the mediation agreement. [Amended Complaint ~~ 817-819.] Mr.

11 STUART alleges that in September of 2008 Dr. DOYNE agreed to act as a mediator

12 in his custody dispute, and that during the course of his services Dr. DOYNE

13 reported Mr. STUART to San Diego County Child Protective Services because Mr.

14 STUART held his son "upside down over a balcony." [Amended Complaint ~ 817.]

15 The amended complaint further alleges Dr. DOYNE made a "false and misleading"

16 child abuse report and forced Mr. STUART to pay for unnecessary services.

17 [Amended Complaint ~ 817.]

18 As a result of the various "breaches" identified in the amended complaint, Mr.

19 STUART alleges that "[i]n addition to complaining to and firing DOYNE, Plaintiff

20 also filed formal complaints with DOYNE' s landlord, Scripps Memorial Hospital,

21 the State of California Board of Psychology" as well as federal law enforcement

22 officers. [Amended Complaint ~ 819.] The amended complaint alleges that Dr.

23 DOYNE retaliated against Mr. STUART by falsely testifying and reporting facts

24 related to Mr. STUART's son, and by demanding to be paid-which Mr. STUART

25 alleges constitutes extortion and bribery. [Amended Complaint ~~ 821-830.] Mr.

26 STUART refused to pay Dr. DOYNE further, but claims he was "intimidated,

27 terrified, oppressed, and under duress" because Dr. DOYNE remained a witness in

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(l3cv1944 CAB (BLM»

- 2 -MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STEPHEN E. DOYNE'S MOTION TO DISMISS


1 Mr. STUART's family law matter, thus prohibiting Mr. STUART "from taking

2 formal action" until August 20, 2013. [Amended Complaint ~ 828-830.] This

3 argument is contradicted by the pleadings, in that Mr. STUART alleges he filed

4 complaints against Dr. DOYNE with the Board of Psychology, Scripps Memorial

5 Hospital, Dr. DOYNE' s landlord, and even federal agents. [Amended Complaint ~

6 819.] Mr. STUART also filed an amicus curiae brief in an action against Dr.

7 DOYNE on November 20,2009, in which he both acted as the attorney for CCFC

8 and was the first signatory. [RJN 3, Exhibits to Amended Complaint, P654-P686.]

9 Mr. STUART also filed a legal malpractice action against SHARON BLANCHET

10 and ASHWORTH, BLANCHET, KRISTENSEN & KALEMENKARIAN

11 (collectively "BLANCHET") on January 15, 2010, which was is based upon the

12 BLANCHET firm's representations to Mr. STUART regarding the efficacy of Dr.

13 DOYNE's mediation services. [RJN 2, Exhibits to Amended Complaint, P1353-

14 P1366.]

LEGAL ANALYSIS 15 3.

16 A. Plaintiffs' Claims Are Time Barred

17 Plaintiff's complaint was filed on or about August 20, 2013. The amended

18 complaint alleges that the underlying acts of Dr. DOYNE were discovered in March

19 of 2009, thus each and every one of Plaintiffs' claims against Dr. DOYNE are time

20 barred by the respective statutes of limitation regardless of whether the limitations

21 period is one year under Code of Civil Procedure section 340.5 or 4 years for a civil

22 RICO claim. The amended complaint alleges causes of action for breach of

23 contract, fraud, intentional infliction of emotional distress, extortion, and bribery, all

24 stemming from professional services provided by Dr. DOYNE in the context of his

25 role as a court appointed mediator. The Supreme Court held in Wilson v. Garcia

26 that the appropriate statute of limitations period for 42 U.S.C. section 1983 actions is

27 that of the state's statute of limitations for personal injury cases. (Wilson v. Garcia,

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471 U.S. 261, 276,105 S. Ct. 1938 (1985).) In California, the statute of limitations

for personal injury causes of action is two years. (California Code of Civil

Procedure section 335.1.) However, for claims against a health care provider, the

time for commencement of the action begins one year from the discovery of the

claim. (California Code of Civil Procedure section 340.5.) Section 1985 claims are

likewise governed by the state personal injury limitations period. (Taylor v. Regents

ofUniv. 01 Cal. , 993 F.2d 710,711-712 (9th Cir. Cal. 1993).) Section 1986 contains

its own limitations period of one year. (Kennar v. North American Rockwell Corp.,

1974 U.S. Dist. LEXIS 5678, 4 (C.D. Cal. Nov. 19, 1974).) Given that the claims

arising from Dr. DOYNE's professional services accrued in 2009 or 2010, all tort

claims as well as the sections 1983, 1985, and 1986 causes of action are time barred

by the one year statute of limitations.

Although the original complaint was silent regarding allegations of purported

duress, the amended complaint attempts to assert a claim for equitable tolling of the

statute of limitations by pleading that plaintiff was subjected to fraud, duress, undue

influence, and oppression. [Amended complaint ~~ 827-830.] The amended

complaint fails to set forth sufficient allegations to support equitable tolling of the

limitations period. To demonstrate that a defendant is equitably estopped from

asserting the limitations period has expired, the plaintiff must demonstrate conduct

on behalf of the defendant that actually and reasonably induced forbearance of filing

suit. (Lauter v. Anoufrieva (C.D. Cal. 2009) 642 F.Supp.2d 1060, 1101.) In the case

of Ateeq v. Najar (1993) 15 Cal.AppAth 1351, 1356-57, the court found that the

doctrine of equitable estoppel applied where a jury found that the defendant

repeatedly threatened the plaintiff with deportation if he caused any problems with

the accounting of their financial dealings. The amended complaint is absent of

allegations indicating that Dr. DOYNE in any way attempted to influence Mr.

STUART from filing actions against him. To the contrary, the amended complaint

(l3cvI944 CAB (BLM»



1 alleges that Mr. STUART filed complaints against Dr. DOYNE with the Board of

2 Psychology, Scripps Memorial Hospital, and even Dr. DOYNE's landlord.

3 [Amended Complaint ~~ 821-830.] The amended complaint alleges that Mr.

4 STUART was not delayed from taking formal action against Dr. DOYNE, as one of

5 the exhibits to the amended complaint is the November 20, 2009 amicus curiae brief

6 Mr. STUART prepared on behalf of CCFC in an action against Dr. DOYNE. [RJN

7 3, Exhibits to Amended Complaint, P654-P686.] Mr. STUART further was not

8 delayed from filing a legal malpractice action against BLANCHET on January 25,

9 2010 in which the entirety of the complaint alleges malpractice based upon

10 BLANCHET's alleged recommendation that Mr. STUART retain the services of Dr.

11 DOYNE. [RJN 3, Exhibits to Amended Complaint, PI353-PI366.] The complaint

12 against BLANCHET sets forth various alleged wrongdoings of Dr. DOYNE. Based

13 upon the allegations showing that Mr. STUART took formal action against Dr.

14 DOYNE, Mr. STUART has failed to demonstrate conduct that actually and

15 reasonably delayed him from filing suit and thus this action is time barred ..

16 B. All Claims Al'ising From Dr. DOYNE's Participation In

17 STUART's Family Law Matter Are Barred By The Domestic

18 Relations Exception To Federal Jurisdiction.

19 The burden of establishing federal court jurisdiction falls on the party seeking

20 to invoke jurisdiction. (Kokkonen v. Guardian Life Ins. Co. of America (1994) 511

21 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed. 2d 291.) In this case, plaintiffs

22 cannot meet their burden because the gravamen of this lawsuit seeks to invalidate

23 orders of the San Diego Superior court pertaining to the management of family law

24 cases. The Ninth Circuit's test for subject matter jurisdiction in domestic relations

25 cases was set forth in Buechold v. Ortiz (9th Cir. 1968) 401 F.2d 371, 372, in which

26 the court held that family law matters are the province of state courts.

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The Buechold v. Ortiz court notes that state courts have developed

(13cv1944 CAB (BLM))



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1 methodologies for determining child custody orders, which involve the

2 consideration of criteria such as living standards and wages that are dependent upon

3 conditions in the area where the parties reside, and thus regulation of domestic

4 matters should be left to state courts. (Id.) As was the case in Buechold v. Ortiz,

5 where the party failed to seek relief in the California state courts, there is no

6 indication in Mr. STUART's complaint as to why he cannot seek relief in the state

7 court.

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C. To The Extent That This Action Seeks To Challenge Any Order Of

The Family Law Court It Is Barred By The Rooker-Feldman

Doctrine.

The Rooker-Feldman doctrine precludes a federal court from having

jurisdiction over general constitutional challenges if such claims are inextricably

intertwined with the claims asserted in state court. (Rooker v. Fidelity Trust Co.

(U.S. 1923) 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362, 1923 U.S. LEXIS 2824;

District of Columbia Court of Appeal v. Feldman (U.S. 1983) 460 U.S. 462, 103 S.

Ct. 1303, 75 L. Ed. 2d 206.) In Rooker v. Fidelity Trust Co. the plaintiffs alleged an

adverse state court judgment violated the constitution, and sought redress in the

federal court. (Rooker v. Fidelity Trust Co. (U.S. 1923) 263 U.S. 413, 44 S. Ct. 149,

68 L. Ed. 362.) The Supreme Court held in Rooker that if the state court's ruling

was wrong, the appropriate action was to pursue an appeal. (Id. at 416.) Similarly,

the Supreme Court in Feldman that the federal court lacked authority to review a

final judicial determination of the District of Columbia high court. (Id. at 476.) The

principals of these holdings have come to be known as the Rooker-Feldman

doctrine, which applies to cases wherein a losing party in a state case seeks to have a

federal court reject a judgment of the state court. (Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., (U.S. 2005) 544 U.S. 280,291,125 S. Ct. 1517, 161 L. Ed. 2d 454

("Rooker-Feldman doctrine is confined to cases of the kind from which it acquired




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its name: cases brought by state-court losers complaining of injuries caused by state

court judgments rendered before the federal district court proceedings commenced

and inviting district court review and rejection of those judgments.").)

Prospective Relief Count 2 asks the court to issue an order finding that

orders of the superior court in family law matters are unconstitutional and thereby

invalid, and as such this case falls squarely within the parameters of the Rooker

Feldman doctrine. [Amended Complaint ~~ 1198-1203.] As stated in Noel v. Hall

(9th Cir. 2003) 341 F.3d 1148, 1165, "(t)he 'inextricably intertwined' analysis of

Feldman applies to defeat federal district court subject matter jurisdiction when a

plaintiff s suit in federal district court is at least in part a forbidden de facto appeal of

a state court judgment, and an issue in that federal suit is 'inextricably intertwined'

with an issue resolved by the state court in its judicial decision." (ld. at 1158.) The

stated purpose of plaintiffs' action is to have this court invalidate state court orders,

and thus all issues are inextricably intertwined with issues resolved by state courts.

D. Plaintiff's Claims Are Barred By The Doctrine Of Quasi-Judicial

Immunity.

Dr. DOYNE was court appointed to act as mediator in Mr. STUART's

dissolution case, and as such is protected by the doctrine of quasi-judicial immunity.

[RJN ~ 1, Exh. G p. 23.] He was appointed for the purpose of making

recommendations to the court regarding custody and visitation. [RJN ~ 1, Exh. G ~

p. 23.] It is clear that Congress did not intend section 1983 to abrogate immunities

"well grounded in history and reason." (Buckley v. Fitzsimmons (1993) 509 U.S.

259, 268, 113 S. Ct. 2606, 2612-13, 125 L.Ed. 2d 209.) The United States Supreme

Court addressed the issue of witness immunity and section 1983 in the case of

Briscoe v. Lahue (U.S. 1983) 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96,

wherein the Court held that section 1983 does not abrogate the immunity provided to

27 participants in judicial proceedings. The Supreme Court has recognized that "when

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1 Congress enacted § 1983 it was aware of a well-established and well-understood

2 common-law tradition that extended absolute immunity to individuals performing

3 functions necessary to the judicial process." (Miller v. Gammie (9th Cir. 2003) 335

4 F.3d 889, 895-96, (Abrogated in part on other grounds).) The common law provided

5 absolute immunity from subsequent damages liability for all persons - governmental

6 or otherwise - who were integral parts of the judicial process." (Briscoe, supra, 40

7 U.S. at 335.)

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This protection extended to private counsel and witnesses for their

involvement in the "judicial proceeding itself." (Id. at 334.) Non-judicial persons

who fulfill quasi-judicial functions intimately related to the judicial process have

absolute immunity for damage claims arising from their performance of the

delegated functions. (Myers v. Morris (8th Cir. 1987) 810 F.2d 1437, 1466-67.)

Absolute immunity may properly be raised in support of a motion to dismiss for

failure to state a claim. (See Imbler v. Pachtman (1976) 424 U.S. 409, 416; 96 S.Ct.

984, 988; Mullis v. United States Bankruptcy Court, (9th Cir. 1987) 828 F.2d 1385,

1387). Further, the absolute immunity of therapists extends beyond the function of

testifying before the family court and encompasses the provisions of their reports

and recommendations to the family court. (Myers v. Morris (1987) 810 F.2d 1437,

1465.) Psychologists who fulfill quasi-judicial functions intimately related to the

judicial process have absolute immunity for damage claims resulting from their

performance of the delegated functions. (Kurzawa v. Meuller (6th Cir. 1984) 732

F.2d 1456, 1548.)

In Kurzawa, the defendants included a psychologist who examined the

plaintiffs' child and made findings used by the state court to determine what

environment best served the interests of the child. The court found that this function

of providing information to be analogous to that of a witness and under Briscoe and

its predecessors entitled the psychologist to immunity from a section 1983 lawsuit.




1 (Id. at 1458) The court noted that psychologists must be able to perform the tasks

2 necessary to achieve the goal of determining what is best for the child without the

3 "worry of intimidation and harassment from dissatisfied parents." (Id.)

4 The functions of a court-appointed 730 expert are "to investigate, to render a

5 report as may be ordered by the court, and to testify as an expert at the trial of the

6 action relative to the fact or matter as to which the expert evidence is or may be

7 required." (California Evidence Code section 730.) Because it is plain from the face

8 of the Complaint that Dr. DOYNE was engaged in judicial or quasi-judicial acts, and

9 that he was not acting in the clear absence of all jurisdiction, he is immune from

10 damages. (Id. at 1394.)

11 E. Dr. DOYNE is Immune from Liability Based Upon Reports of

12 Suspected Child Abuse

13 Dr. DOYNE is legally obligated by California Penal Code section 11166 to

14 report suspected child abuse as he is a mandated reported as defined by California

15 Penal Code section 11165.7(21). To the extent that the amended complaint alleges

16 that Dr. DOYNE was negligent or otherwise culpable in reporting suspected child

17 abuse of Mr. STUART's son, Dr. DOYNE is immunized from liability by California

18 Penal Code section 11172, which provides that "no mandated reporter shall be

19 civilly or criminally liable for any report required or authorized by this article ... "

20 To the extent that paragraph 817 of the amended complaint alleges that Dr. DOYNE

21 was culpable based upon Dr. DOYNE's report of suspected child abuse, Dr.

22 DOYNE is immune from liability.

23 F. Plaintiffs' Complaint Fails To Establish The Elements of A Civil

24 RICO Claim.

25 The elements of a civil Racketeering Influenced and Corrupt Organizations

26 Act ("RICO") are as follows: "(1) conduct (2) of an enterprise (3) through a pattern

27 (4) of racketeering activity (known as predicate acts) (5) causing injury to plaintiffs

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business or property." (United Bhd. of Carpenters & Joiners of Am. v. Bldg. &

Constr. Trades Dep't, 911 F. Supp. 2d 1118, 1124 (E.D. Wash. 2012).) As set forth

in the omnibus motion to dismiss, the amended complaint fails to adequately plead

predicate acts, and it also fails to plead the existence of an enterprise. The Supreme

Court in United States v. Turkette noted that an enterprise is "proved by evidence of

an ongoing organization, formal or informal, and by evidence that the various

associates function as a continuing unit." (United States v. Turkette, 452 U.S. 576,

583 (U.S. 1981).) Here, there is no enterprise. The complaint fails to allege

sufficient facts demonstrating the existence of a continuing unit separate and apart

from the ambiguously alleged predicate acts, and thus the elements of a RICO claim

cannot be met.

4. CONCLUSION

For the reasons set forth above, the motion to dismiss of Dr. DOYNE should

be granted without leave to amend.

DATED: April 10,2014 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP

By CHRIST PHER 1. ZOPAITI JOAN E. 1RIMBLE Attorn,~ys for Defendant, STEPHEN E. DOYNE, PH.I!: and STEPHEN E. DOYNE, A.P .L.

G:\ACE\0130009\Mtns\Mot. to Dismiss - Doyne\Doyne Mot to Dismiss P&A.docx




143-1 doyne memo

Documents

doyne i

doyne file

support of stephen

defendant stephen

support of motion

doynes motion

cabblm document

supplemental brief of