183-objections and motion to strike, motion for leave to file surreply

PLTFS OBJ & MTN TO STRIKE NEW MATTER IN REPLIES TO OMNIBUS

3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

Colbern C. Stuart III E-Mail: [email protected] 4891 Pacific Highway Ste. 102 San Diego, CA 92110 Telephone: 858-504-0171 Facsimile: 619-231-9143 In Pro Se Dean Browning Webb (pro hac vice) Email: [email protected] Law Offices of Dean Browning Webb 515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 Eric W. Ching, Esq. SBN 292357 5252 Balboa Arms Dr. Unit 132 San Diego, CA 92117 Phone: 510-449-1091 Facsimile: 619-231-9143 Attorneys for Plaintiff California Coalition for Families and Children, PBC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., Plaintiffs,

v. SAN DIEGO COUNTY BAR ASSOCIATION, et al.,

Defendants

Case No. 3:13-cv-1944-CAB (JLB)Judge: Hon. Cathy Ann Bencivengo

PLAINTIFFS OBJECTIONS AND MOTION TO STRIKE NEW AUTHORITY AND ARGUMENT SUBMITTED BY DEFENDANTS IN REPLIES TO OMNIBUS; ALTERNATIVE APPLICATION TO SUBMIT SUR-REPLY

Date: June 6, 1014 Time: 2:00 p.m. Courtroom: 4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013

Case 3:13-cv-01944-CAB-JLB Document 183 Filed 06/02/14 Page 1 of 19

1 PLTFS OBJ & MTN TO STRIKE NEW MATTER IN REPLIES TO OMNIBUS

3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

CONTENTS I. OBJECTION AND MOTION TO STRIKE NEW AUTHORITY ......................... 1 II. AUTHORITY .......................................................................................................... 1III. DISCUSSION.................. ........................................................................................2

A. OMNIBUS/SAN DIEGO COUNTY BAR ASSOCIATION .............................. 2 B. DOYNE, DOYNE, INC. ...................................................................................... 3 C. JUDICIAL DEFENDANTS ................................................................................. 6 D. LAWYER DEFENDANTS ................................................................................ 11 E. LOVE/CORRIGAN & LAWYER DEFENDANTS ......................................... 12

IV. CONCLUSION .................................................................................................. 14



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

CASESAshcroft v. Iqbal, 556 U.S. 662, 664, (2009) ............................................................... 13 Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) ............................. 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007) ........................................ 13 Boyle v. United States, 556 U.S. 938, 948 (2009) ......................................................... 6 Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989) ....................................... 12 Carr v. OLeary, 167 F.3d 1124, 1127 (7th Cir. 1999) ............................................... 10 Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010) ........................................ 9 CrawfordEl v. Britton, 523 U.S. 574 (1998) ............................................................. 12 Csibi v. Fustos, 670 F.2d 134, (9th Cir. 1982) .............................................................. 4 Davis v. Powell, 901 F.Supp.2d 1196, 1217 (S.D. Cal. 2012) .................................... 12 Edwards v. Balisok, 520 U.S. 641 (1997) ...................................................................... 8 Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) ................... 12 Harden v. Pataki, 320 F.3d 1289 (11th Cir. 2003) ........................................................ 9 Harris v. Roderick, 126 F.3d 1189, 119596 (9th Cir.1997) ...................................... 12 Heck v. Humphrey 512 U.S. 477, 484 (1994) ................................................................ 7 Huang ex rel. Yu v. Johnson, 251 F.3d 65 (2d Cir. 2001) ........................................... 10 In re Ames Dept. Stores, Inc., 76 F.3d 66, 70 (2d Cir.1996) ......................................... 2 Jackson v. Beckham, 217 Cal.App.2d 264 (1963); ...................................................... 11 Jaffe v. Stone, 18 Cal.2d 146 (1941) ............................................................................ 10 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951) .................. 2 Lackner v. LaCroix, 25 Cal.3d 747 (1979) .................................................................. 10 Lantzy v. Centex Homes, 31 Cal.4th 363, 370-371 (2003). ........................................... 2 Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 168 (1993) ........................................................................................................ 12 Lee v. Gates, CV 03-03126-GAF, 2005 WL 67087 (C.D. Cal. Jan. 10, 2005) ............. 2 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ........................................................... 2



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

Minasian v. Sapse, 80 Cal.App.3d 823 (1978) ............................................................ 11 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) ..................... 6 Monroe v. Pape, 365 U.S. 167, 169 (1961) ................................................................... 6 Muhammad v. Close, 540 U.S. 749 (2004). ................................................................... 9 Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002) .............................................. 9 Oglesby v. McEwen, 2013 WL 4517839 (S.D. Cal. Aug. 22, 2013) ........................... 12 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir. 2004) ................... 12 Powers v. Hamilton Cnty. Pub. Defender Commn, 501 F.3d 592 (6th Cir. 2007) ...... 9 Preiser v. Rodriguez, 411 U.S. 475 (1973) .................................................................... 8 Spencer v. Kemma, 523 U.S. 1, 19 (1998) ................................................................. 7, 9 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ..................................................... 12 Wilson v. Garcia, 471 U.S. 261 (1985) ......................................................................... 4 Wilson v. Johnson, 535 F.3d 262, 268 (4th Cir. 2008) .................................................. 9

STATUTES28 U.S.C. 1331 ............................................................................................................ 5 28 U.S.C. 1332 ........................................................................................................ 4, 5 28 U.S.C. 1343 ............................................................................................................ 6 28 U.S.C. 2254(a) ....................................................................................................... 8 42 U.S.C. 1983 ............................................................................................................ 9 Cal. Pen. Code 136.2 ................................................................................................. 5

CONSTITUTIONAL PROVISIONSU.S. Const. Amend V..................................................................................................... 2



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

I. OBJECTION AND MOTION TO STRIKE NEW AUTHORITY/ARGUMENT

Plaintiffs California Coalition for Families and Children, PBC and Colbern Stuart hereby object to and move to strike the specific citations to new authority and argument based thereon contained in certain Defendants Replies to Omnibus Motion to Dismiss (Doc. Nos. 167-181). In the alternative, Plaintiffs request leave to supplement their Opposition (Doc. No. 161) with this sur-reply limited to the specific new matter. 1

II. AUTHORITYSeveral Reply Memoranda submitted in support of the Omnibus Motion cited

new authority or arguments not submitted in original Omnibus or Joinder memoranda. Because the Omnibus requests a sanction of dismissal under Fed. R.Civ. P. 41(b), Plaintiffs submit these objections and sur-reply as a matter of right. [D]ue process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions. In re Ames Dept. Stores, Inc., 76 F.3d 66, 70 (2d Cir.1996) (emphasis in original); Lee v. Gates, CV 03-03126-GAF, 2005 WL 67087 (C.D. Cal. Jan. 10, 2005) (Under any sanctions theory, the attorney should be given notice of the sanctionable conduct and an opportunity to be heard.). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951); U.S. Const. Amend V (No person shall . . . be deprived of life, liberty, or property, without due process of law.).

1 Plaintiffs offer only limited sur-reply to new matter, and by refraining from a more thorough sur-reply do not concede points not herein addressed.



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

III. DISCUSSIONA. OMNIBUS/SAN DIEGO COUNTY BAR ASSOCIATION

(Doc. No. 181) 1. Lantzy v. Centex Homes: Defendant San Diego County Bar Association,

responding for all Omnibus Defendants, asserts that tolling or estoppel are unavailable under the California Supreme Court case of Lantzy v. Centex Homes, 31 Cal.4th 363, 370-371 (2003). Lantzy involved Californias ten year statute of repose for suits for construction defect claims based upon latent defects to improvements to real property, California Code of Civil Procedure 337.15, which provides:

(a) No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following:(1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.(2) Injury to property, real or personal, arising out of any such latent deficiency.

The California Supreme Court explained the statute of repose concept as distinct from a statute of limitations concept in Lantzy:

Thus the Legislature, faced with a developing body of common law on the subject, carefully considered how to provide a fair time to discover construction defects, and to sue upon such defects if necessary, while still protecting a vital industry from the damaging consequences of indefinite liability exposure. For latent deficiencies, the lawmakers rejected shorter periods in favor of a limit in the upper range of those previously adopted by other jurisdictions. Moreover, by placing exemptions in the latent defect statute for personal injury, willful misconduct, and fraudulent concealment, the



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

legislators demonstrated an intent to pick and choose the particular exceptions they wished to allow and those particular aspects of the prior case law they wished to embrace. The implication arises that except as stated, and for important policy reasons, the Legislature meant the generous 10year period set forth in section 337.15 to be firm and final.

Lantzy at 377. [T]he purpose of section 337.15 is to protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work. The statute reflects a legitimate concern that expanding concepts of liability could imperil the construction industry unless a statute of limitations was enacted. Such concerns legitimately include the prohibitive cost of insurance against a perpetual and never ending risk. Id. at 374 (internal citations omitted).

Plainly this is not a construction defect action. The absolute cut-off rationale of a repose statute is distinct from the statute of limitations present here. Tolling principles relevant to a state construction defect statute of repose are not relevant to the federal racketeering or civil rights claims here.

B. DOYNE, DOYNE, INC. (Doc. No. 168) 1. Wilson v. Garcia: DOYNE, INC. cites and analyzes under new authority,

Wilson v. Garcia, 471 U.S. 261 (1985) at Doc. No. 168, 1:7-17. Wilson was a 1983 claim for the personal injuries [plaintiff] suffered which were caused by the acts and omissions of the [petitioners] acting under color of law. Id. at 263. Plaintiff brought the claim under the Fourth, Fifth, and Fourteenth Amendments claiming only personal injury. Plaintiff alleged New Mexicos residual four year statute of limitations should apply. Defendants alleged New Mexicos shorter two year Tort Claims Act statute of limitations period should apply. Id. The Court held that the shorter two year statute was the most closely analogous statute under the circumstances. Wilson was published in 1985, prior to the 1987 Agency Holding case relied on by Plaintiffs in the Opposition, holding that a district court may decline



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

to borrow state law when the applicable state limitations period would have frustrated the policy of the federal statute, concluding that in such a case no limitations period governs the suit. Oppo., Doc. No. 161, 29:9-30:25.

2. Csibi v. Fustos: DOYNE, INC. cites and analyzes under new authority,Csibi v. Fustos, 670 F.2d 134, (9th Cir. 1982) at Doc. No. 168, 6:6:9-8:5. DOYNE, INC. asserts that Csibi expands the Domestic Relations Exception to federal diversity jurisdiction to exclude this Action. Csibi, like all other cases involving a Domestic Relations Exception was a diversity action brought under 28 U.S.C. 1332 involving competing claims of two women, both of whom claimed to be heirs to a decedents estate by virtue of their being his wife at the time of his death. The district court found that the case turns on a determination of the marital status of [the two wife/litigants and the decedent] and that because plaintiff/wifes prayer for relief is a request for an annulment of defendant wifes marriage to the decedent, the primary issue in the instant case concerns the status of husband and wife, and federal courts lack subject-matter jurisdiction under the test announced in Buechold. Csibi, like Beuchold, is inapposite here for the same reasons detailed in the Opposition: No plaintiff here asserts diversity jurisdiction, but federal question and pendant jurisdiction. See Oppo., Doc. No. 161, 151:5-152:15. DOYNE INC.S references to state pendant claims against him for fraud, extortion, bribery, unfair competition, are federal law claims properly and exclusively present under 28 U.S.C. 1331, and all state law business torts are properly present under pendant jurisdictionunder 28 U.S.C. 1332. No plaintiff here asserts remedies under state domestic relations law, and no issue to be resolved in this case will depend upon resolution of a domestic relations issue relevant in Stuart v. Stuart, which involved only child custody and spousal support. See Oppo., Doc. No. 161, 151:5-152:15.

DOYNE, INC. attempts to convert this Action into a domestic dispute by asserting that STUART seeks relief from an order of a domestic court. This is untrue. The Domestic Violence Intervention Legislative Scheme (DVILS) and its



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

form restraining orders are criminal protective orders, one set of which is adapted for use in Family Court. See, FAC 417(b), 438, 462, 464 (These DVILS ORDERS are themselves illegal and unconstitutionally vague and overbroad. The several DVILS ORDERS are founded on a form prepared and made mandatory by Defendant Judicial Council; form CR-160, 964-966; Cal. Pen. Code 136.2, 1203.097(a), 273.5(i), 646.9(k); forms CR-160 (entitled Criminal Restraining Order, Judicial Council Form 160) (Ex. 35). STUART is presently deprived of liberty under the criminal version of order until about May, 2015. Plaintiffs seek prospective relief declaring the criminal and domestic versions of the order forms and statutes authorizing them unconstitutional. This relief is in the form of an attack on the validity of a statute under the Constitution of the United Statesnot an attack on a specific issued Order of a domestic court. To the extent DOYNE INC. asserts Csibi for the proposition that United States Courts somehow lack original jurisdiction to determine validity of state laws in conflict with superior federal law, the proposition has been error for over a century. 28 U.S.C. 1343 provides:

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States

See also, Monroe v. Pape, 365 U.S. 167, 169 (1961) overruled on other grounds by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

3. New Enterprise Attack: DOYNE, INC. asserts a new attack that Theamended complaint does not set forth any common purpose in which the defendants are engaged-to the contrary, participants in the family law system often fulfill adversarial roles. Likewise, the amended complaint fails to set forth an ongoing organization. Doc. No. 168, 10:2-6. DOYNE, INC. did not assert this attack in his



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

joinder. The FAC does set forth both common purpose and ongoing organization relating to DOYNE, INC. and DOYNE. See discussion at Oppo. 161, 99:1-101:20.

To the extent that DOYNE, INC. asserts that the Family Law System is not an enterprise, but merely cars on a freeway or shoppers in a store (Doc. No. 168, 10:10-11), he is entitled to make that case upon presence of a trier of fact. U.S. Const., Amend. VII. That attorneys within the Family Law System occasionally have interests adverse to one another does not erode their common purpose in conducting the enterprise. See, e.g., Boyle v. United States, 556 U.S. 938, 948 (2009) (decisions may be made on an ad hoc basis and by any number of methodsby majority vote, consensus, a show of strength, etc.). Upkeep of this appearance of adversity is in fact one of the schemes to defraud. See Poser Advocacy, False Flag schemes. FAC 948, 957, 961, 985, 984-986, 988-990, 996, Racketeering Count 2 (Honest Services Fraud) 1034-1036. Quintessential racketeers such as such as the mafia and drug lords are not known for their internal tranquility, and even the best-behaved criminals might have occasion to disagree on means of splitting up the loot. Present defendants shed less blood, but are no less guilty in their coordinated direction of racketeering through fraud and extortion schemes toward one of their common purposes: enriching their practices. FAC 756.

C. JUDICIAL DEFENDANTS (Doc. No. 170) 1. Heck v. Humphrey: JUDICIAL DEFENDANTS cite and analyze under new

authority to them,2 Heck v. Humphrey 512 U.S. 477, 484 (1994). Doc. No. 170, 2:3-17. JUDICIAL DEFENDANTS assert that the FAC must plead termination of theprior criminal proceeding in favor of the accused. Doc. No. 170, 2:12. This is false for two reasons. First, the FAC does plead termination of the People v. Stuart matter in favor of STUART. Doc. No. 90, 416. The favorable termination issue relevant to CITY ATTORNEY DEFENDANTS is analyzed at Oppo. Doc. No. 161, 120:4-22

2 CITY ATTORNEY DEFENDANTS did cite and analyze under Heck at Doc. No. 151, 7:21-8:21; Plaintiffs Opposed CITY ATTORNEY DEFENDANTS analysis at Doc. No. 161, 120:4-22. Plaintiffs re-assert that analysis here.



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

and relevant here. Second, the interpretation of Heck as imposing a favorable termination requirement has been refined to apply only to Plaintiffs who are wrongfully imprisoned. The favorable termination confusion is described by Justice Souter in Spencer v. Kemma, 523 U.S. 1, 19 (1998) (Souter, J., joined by Breyer, J., Ginsberg, J, OConnor, J., concurring):

To be sure, the majority opinion in Heck can be read to suggest that this favorable-termination requirement is an element of any 1983 action alleging unconstitutional conviction, whether or not leading to confinement and whether or not any confinement continued when the 1983 action was filed. Heck v. Humphry, 512 U.S., at 483484, 486487. Indeed, although Heck did not present such facts, the majority acknowledged the possibility that even a released prisoner might not be permitted to bring a 1983 action implying the invalidity of a conviction or confinement without first satisfying the favorable-termination requirement. Id., at 490, n. 10. Concurring in the judgment in Heck, I suggested a different rationale for blocking an inmate's suit with a requirement to show the favorable termination of the underlying proceedings. In the manner of Preiser v. Rodriguez, 411 U.S. 475 (1973), I read the general 1983 statute in light of the specific federal habeas statute, which applies only to persons in custody, 28 U.S.C. 2254(a), and requires them to exhaust state remedies, 2254(b). Heck v. Humphry, 512 U.S., at 497. I agreed that the statutory scheme must be read as precluding such attacks, id., at 498, not because the favorable-termination requirement was necessarily an element of the 1983 cause of action for unconstitutional conviction or custody, but because it was a simple way to avoid collisions at the intersection of habeas and 1983. Ibid. I also thought we were bound to recognize the apparent scope of 1983 when no limitation was required for the sake of honoring some other statute or weighty policy, as in the instance of habeas. Accordingly, I thought it important to read the Court's Heck opinion as subjecting only



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

inmates seeking 1983 damages for unconstitutional conviction or confinement to a requirement analogous to the malicious-prosecution tort's favorable-termination requirement, id., at 500, lest the plain breadth of 1983 be unjustifiably limited at the expense of persons not in custody within the meaning of the habeas statute. The subsequent case of Edwards v. Balisok, 520 U.S. 641 (1997), was, like Heck itself, a suit by a prisoner and so for present purposes left the law where it was after Heck. Now, as then, we are forced to recognize that any application of the favorable-termination requirement to 1983 suits brought by plaintiffs not in custody would produce a patent anomaly: a given claim for relief from unconstitutional injury would be placed beyond the scope of 1983 if brought by a convict free of custody (as, in this case, following service of a full term of imprisonment), when exactly the same claim could be redressed if brought by a former prisoner who had succeeded in cutting his custody short through habeas.

The better view, then, is that a former prisoner, no longer in custody, may bring a 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy. Thus, the answer to Spencer's argument that his habeas claim cannot be moot because Heck bars him from relief under 1983 is that Heck has no such effect. After a prisoner's release from custody, the habeas statute and its exhaustion requirement have nothing to do with his right to any relief.

Spencer v. Kemna, 523 U.S. 1, 19-21 (1998) (internal parallel citations omitted). See also Muhammad v. Close, 540 U.S. 749 (2004).

Justice Souters articulation of Hecks favorable-termination rule is followed in this Circuit. See Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002) ([g]iven the Courts holding that petitioner does not have a remedy under the habeas statute, it



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

is perfectly clear . . . that he may bring an action under 42 U.S.C. 1983.). Other Circuits also follow. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010) (holding plaintiff released from custody had no habeus remedy and thus Heck inapplicable). Wilson v. Johnson, 535 F.3d 262, 268 (4th Cir. 2008) (holding that the sweeping breadth, high purposes, and unique[ness] of 1983 would be compromised if it were not applied to plaintiffs lacking habeas relief (quoting Wilson v. Garcia, 471 U.S. 261, 272 (1985))), appeal denied, 353 F. Appx 837 (4th Cir. 2009), cert. denied, 131 S. Ct. 71 (2010); Powers v. Hamilton Cnty. Pub. Defender Commn, 501 F.3d 592 (6th Cir. 2007) (holding that because the plaintiff was challenging the procedures that incarcerated him, and not his actual incarceration, the Heck favorable-termination requirement did not apply), cert. denied, 129 S. Ct. 44 (2008); Harden v. Pataki, 320 F.3d 1289 (11th Cir. 2003) (holding that Heck does not bar a plaintiff seeking relief under 1983 for violations of his extradition rights as a prisoner); Huang ex rel. Yu v. Johnson, 251 F.3d 65 (2d Cir. 2001) (holding that a plaintiff lacking a habeas remedy may attack the duration of his incarceration by seeking 1983 relief); Carr v. OLeary, 167 F.3d 1124, 1127 (7th Cir. 1999) (holding that [t]he dictum in Spencer v. Kemna casts sufficient doubt on the applicability of Heck to entitle a plaintiff without habeas relief from pursuing relief under 1983).

Under the controlling authority of Spencers plurality, Muhammad, and Nonette, Heck is read as simply a requirement that imprisoned Plaintiffs may not bypass habeus remedies, if then available, before seeking relief under section 1983. As STUART is no longer imprisoned, he has no habeus standing, and Heck is no bar

2. Awabdy v. City of Adelanto: JUDICIAL DEFENDANTS cite and analyzeunder new authority of See also Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) for the same favorable termination proposition. Awabdy actually supports that Plaintiffs malicious prosecution cause of action is not barred by Heck



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

because STUART was acquitted of stalking and harassment by telephone charges (See FAC 416, Oppo. at 120:20-22):

Nor is Awabdy's malicious prosecution claim foreclosed because the prior criminal proceedings concluded when the Superior Court granted a motion by a deputy District Attorney to dismiss the embezzlement charge in the interests of justice. An individual seeking to bring a malicious prosecution claim must generally establish that the prior proceedings terminated in such a manner as to indicate his innocence. Heck, 512 U.S. at 484-85, 114 S.Ct. 2364; Lackner v. LaCroix, 25 Cal.3d 747 (1979); Jaffe v. Stone, 18 Cal.2d 146 (1941). Similar to other terminations short of a complete trial on the merits, a dismissal in the interests of justice satisfies this requirement if it reflects the opinion of the prosecuting party or the court that the action lacked merit or would result in a decision in favor of the defendant. Minasian v. Sapse, 80 Cal.App.3d 823 (1978); Jackson v. Beckham, 217 Cal.App.2d 264 (1963); De LaRiva, 61 Cal.Rptr. at 296. When such a dismissal is procured as the result of a motion by the prosecutor and there are allegations that the prior proceedings were instituted as the result of fraudulent conduct, a malicious prosecution plaintiff is not precluded from maintaining his action unless the defendants can establish that the charges were withdrawn on the basis of a compromise among the parties or for a cause that was not inconsistent with his guilt.

Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) (internal parallel citations omitted).

3. New Standing Attack: JUDICIAL DEFENDANTS misrepresent theOpposition, claiming Plaintiffs sole argument regarding this standing requirement is that Stuart and others are under illegal domestic violence restraining orders or in jeopardy of becoming subject to such orders. (Doc. No. 161 at 148:26-149:4.) This is untrue. Plaintiffs standing is much broader than past, present and future jeopardy under criminal and domestic DVILS ORDERS. Against JUDICIAL DEFENDANTS



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

the FAC also asserts standing by virtue of STUART and California Coalition members, affiliates, and those similarly situated, i.e., Families3 for past and ongoing victimization by the fraud, extortion, deprivation, and violence perpetrated by JUDICIAL DEFENDANTS as part of the Family Law System. So long as Families are forced to seek resolution of domestic dispute matters within domestic relations courts and at unequal jeopardy for prosecution in state criminal courts, they are presently and in the future at outrageous unequal jeopardy for deprivation of fundamental rights and equal protection of the laws by JUDICIAL DEFENDANTS and their municipal level colleagues statewide as key conductors of the various SAD acting in enterprise and conspiracy Plaintiffs are presently and will be subject to such forced processes constituting heinous, intentional, and malicious oppression and crime today and so long as they remain members of any EQUAL PROTECTION CLASS.

D. LAWYER DEFENDANTS (Doc. No. 173) 1. Olsen v. Idaho State Bd. of Medicine: LAWYER DEFENDANTS persist

to assert a heightened pleading standard for conspiracy claims despite the abrogation of all authority articulating that standard in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). See Oppo. Doc. No. 161, 81:17-28. They assert new authority and analysis for their claim that The heightened pleading standard for claims alleging a conspiracy to violate constitutional rights is still the law. They assert: To state a claim for conspiracy to violate constitutional rights,

3 For present purposes, ones Family shall include those relationships defined under California law as . . . an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom [one] has had a child or is having or has had a dating or ENGAGEMENT relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship. Cal. Fam. C. 6211, Pen. C. 13700. Family includes grand-relations. Troxel v. Granville, 530 U.S. 57 (2000). See FAC 777-781.



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

the plaintiff must state specific facts to support the existence of the claimed conspiracy. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir. 2004) (quoting Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989)) (discussing conspiracy claim under 1985). Doc. No. 174, 5:5-17. They also assert new authority for the same analysis through Davis v. Powell, 901 F.Supp.2d 1196, 1217 (S.D. Cal. 2012) (citing Olsen, 363 F.3d at 929; Burns, 883 F.2d at 821; Harris v. Roderick, 126 F.3d 1189, 119596 (9th Cir.1997)); and Oglesby v. McEwen, 2013 WL 4517839 (S.D. Cal. Aug. 22, 2013). Doc. No. 174, 5:25-28.

There is no controversy that the heightened pleading standard for section 1983 claims is a long-dead horse. It was abrogated in CrawfordEl v. Britton, 523 U.S. 574 (1998) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). See also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (We think that it is impossible to square the heightened pleading standard applied by the Fifth Circuit in this case with the liberal system of notice pleading set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only a short and plain statement of the claim showing that the pleader is entitled to relief.).

Today, instead of heightened pleading Plaintiffs must plead plausible claims. See, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007); Ashcroft v. Iqbal, 556 U.S. 662, 664, (2009); Oppo. 161, 10:3-13:2. To assert an attack on claims Defendants believe to be implausible, they must traverse the Moss I multi-stage analysis. Id. Defendants have failed to do so, and the Omnibus and Joinders may be denied for this reason alone.

E. LOVE/CORRIGAN (Doc. No. 167) & LAWYER DEFENDANTS (Doc. No. 173)

Defendants LOVE and CORRIGAN and LAWYER DEFENDANTS for the first time offer a calculation of the period of limitations not previously offered in their moving papers. They did not attack the FACs calculation of dates of imprisonment



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

in their original moving papers, but offer an erroneous calculation in Reply. In so doing they misrepresent the length and periods of time during which STUART was falsely imprisoned.

LAWYER DEFENDANTS at Doc. No. 174, 2-3; CORRIGAN at Doc. No. 167, 6, fn. 6 offer: the period of time plaintiff alleges he was incarcerated or imprisoned is at most 93 days.6 This calculation omits the 422 day (approximately fourteen months) time period of FALSE IMPRISONMENT 6 described at at FAC 453: STUART was imprisoned by GORE, who knew or should have known of the malicious and retaliatory nature of the prosecution until release on May 15, 2013. Such constitutes a false imprisonment for approximately fourteen months (FALSE IMPRISONMENT 6).

The FAC offered a total period of physical confinement of STUART in the custody of GORE of approximately 522 days. (FAC 384, 392, 398, 402, 421, 453). The FAC identified STUARTS confinement under suspended sentence and illegal criminal restraining orders from May 9, 2011 until April 10, 2012, for 288 days. FAC 461-466. The total period of physical confinement (imposed or suspended sentence) of STUART offered in the FAC was 810 days. Id. STIART remains under deprivation of liberty by orders imposed by GROCH, C. GOLDSMITH, and COUNTY by two protective orders, one expiring in about May, 2015 and a second expiring in about May, 2022. FAC 465.

Defendants mis-calculate the time period of FALSE IMPRISONMENT 1: Plaintiffs false imprisonment number one occurred as a result of an April 6, 2010 pre seminar arrest for ten hours (FAC 379-384). The FAC does not identify FALSE IMPRISONMENT 1 to be pre-seminar, or April 6, 2010. The FAC does not identify the date of FALSE IMPRISONMENT 1 at all. The April 6, 2010 date was the date of GARSON PERJURY ONE: On about April 6, 2010, GARSON caused to be filed a second perjurous Declaration In Support of Arrest Warrant relating to People v. Stuart containing similar false statements and misrepresentations



3:13-CV-1944 CAB (JLB)

123456789

10111213141516171819202122232425262728

based upon the same purported evidence. This documents is filed, though not authenticated, in this matter at Dkt#16-1, Ex. A. FAC 379.

IV. CONCLUSIONDefendants had full notice and opportunity to present argument and authority

on these issues in their Omnibus and Joinders. Plaintiffs object and move to strike all authority and argument cited above as improperly noticed. In the event the Court will consider such late authority and argument over Plaintiffs objection and motion to strike, Plaintiffs hereby request leave to supplement the Opposition (Doc. No. 161) with the authority and rebuttal provided herein.

Respectfully Submitted

DATED: June 2, 2014 By: /s/ Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

DATED: June 2, 2014 By: /s/ DEAN BROWNING WEBB ATTORNEYS AND COUNSELORS AT LAW FOR PLAINTIFF: COALITION FOR FAMILIES and CHILDREN, PBC, a Delaware Corporation

Colbern C. Stuart III

Dean Browning Webb


-1-3:13-cv-1944 CAB BLM

123456789

10111213141516171819202122232425262728

CERTIFICATE OF SERVICE

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

By: /s/ Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

Colbern C. Stuart III


183-objections and motion to strike, motion for leave to file surreply

Documents