52-1 Alliance Mtd

8/13/2019 52-1 Alliance Mtd

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CHARLES R. GREBING, State Bar No. 47927c gr eb in g@w ing er tl aw. c o mCHRISTOPHER W. TODD, ESQ./BAR NO. [email protected] A. SERVAIS, State Bar No. 239891as erv ai s @w in ger tl aw. c o mDWAYNE H. STEIN, State Bar No. 261841d s t ein@wing er t I aw. c omWINGERT GREBING BRUBAKER JUSKIE LLPOne AmericaPlaza, Suite 1200600 West BroadwaySan Diego, CA 92101(619) 232-81 5 1 ; Fax (619) 232-466sAttorneys for Defendant, NATIONAL FAMILY JUSTICE CENTER ALLIANCE

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF' CALIFORNIA

CALIFORNIA COALITION FORFAMILIES AND CHILDREN. a DelawareCorporation, LEXEVIA, PC, a' CaliforniaProfessional Corooration. and COLBERTC. STUART, an individul,Plaintiffs,

Case No. : 3 : I 3- Iv-01944-CAB-BLMMEMORANDUM OF' PONTS ANDAUTHORITIES IN SUPPORT OFDEFENDAT\T NATIOI{AL F'AMILYJUSTICE CENTER ALLIANCE'SMOTION TO DISMISS PLAINTIF'F'SCOMPLAINT [Fed. R. Civ. P. 12(bX1)12(bX6) and Fed. R. Civ. P. 9(b)l

ASSOCIATION, a California Corporation;SAN DIEGO COUNTY SHERIFF'SVS.

SAN DIEGO COUNTY BAR

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Date: January 24,2014Time: 2:00 o'm.Ctrm: Courfroom 4CJudge: Cathy Ann Bencivengo, Presiding

MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 52-1 Filed 12/03/13 Page 1 of 20


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acorporation,

ANDa Professionalan,aDefendants.

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TABLE OF'CONTENTS PageI. INTRODUCTION 1

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II. ALLEGATIONS AGAINST ALLIANCE IN COMPLAINTM. THERE IS NO JURISDICTION FOR THE COMPLAINTA. Standard for 1 2(bX1) Motion to Dismiss for Lack of Subject MatterJurisdictionB. Corporate Entity Plaintiffs Lack Standing to File This Lawsuit.........1. California Coalition for Families and Children is notRepresented by Counsel2. Lexevia is a Suspended CorporationC. Jurisdiction could Never be Sustained because Complaint ViolatesIV. PLAINTIFFS' CLAIMS AGAINST ALLIANCE ARE NOTSUSTAINABLE

VA. Standard for 12(b)(6) Motion to Dismiss for Failure to State a ClaimPLAINTIFFS' CryIL RIGHTS CLAIMS AGAINST ALLIANCE AREUNSIJSTAINABLEA

.8

.8

.9Counts 3,72,1Limitations for1. Counts 3Blanchet2. Plaintiffnot a State

3,14, and l5Tort Claims are barred by the Two-Year Stafute of,12,13,and AB 15 Fail to Allege any Facts againstClaims are barred because Alliance is

9

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VI LANHAM ACT CLAIMS AGAINST ALLIANCE ARE NOT VIABLE.......... 11A. The Complaint Fails to Allege Alliance is a Competitor with Plaintif... 11Plaintiffs' Lanham Act AlleHeightened Fraud Pleading t be Analyzed underVII. PLAINTIFFS' VIOLATE RULE 9(B) BECAUSE THEIR RICO CLAIMSFAIL TO ALLEGE PREDICATE ACTS AGAINST ALLIANCE VITHPARTICULARITY ................ 13VM. CONCLUSION

B .12

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TABLE OF AUTHORITIESSupreme Court OpinionsAllen v. Wright,468U.S.737 (1984)Ashcroft v. Iqbal,556 U.S. 662 (2009)Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) ...Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994)West v. Atkins,487 U.S. 42 (1988)Third Circuit OpinionsAccenture Global Serys. GmbHv. Guidewire Software, 1nc.,581 F. Supp. 2d654 (D.

48,984

Del.2008)Warner-Lambert Co. v. BreathAstre, Inc.,204F.3d 87 (3d Cir. 2000)Seventh Circuit OpinionsSee e.g. Hansen v. Ahlgrimm, 450 F .2d 7 68, 770 (7th Cir. 197 5)United States v. Lockheed-Martin Corp.,328 F.3d 374 (7thCir.2003) 7Ninth Circuit OpinionsBalistreri v. Pacifca Police Dep't, 901 F .2d 696 (9fh Cir. 1988)Cafasso v. Gen. Dynamics C4 9ys.,637 F.3d 1047 (9th Cir. 20II)Chandlerv. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115 (9th Cir. 2010) ..................4Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42F.3d 1541(9th Cir. 1994)Edwards v. Marin Park, lnc.,356 F.3d 1058 (9th Cir. 2004)Federal Reserve Bank of San Francisco v. HK Systems,1997 WL 227955, at *3 (N.D.Cal. 1997 I4FLIR dys. v. Sierra Media, hnc.,903 F. Supp. 2d ll20 (D. Or. 2012) T2Hatch v. Reliance Ins. Co.,7 58 F .2d 409 (9th Cir. 1985) 6Jack Russell Terrier Network v. Am. Kennel Club, nc.,407 F.3d 1027 (9th Cir. 2005) 1Jurinv. Google, nc.,695F. Supp.2dIIl7 (E.D. Cal.2010)Ketchum v. Cnty. of Alameda, 811 F.2d 1243 (gth Cir. 1987)

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10

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11,13..... 13

II, 12...... 10

Knievel v. ESPN,393 F.3d 1068 (9th Cir. 2005)oor5s54 DOI]X

MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM

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Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (ghhCir. 1991) . 1Leev. City of L.A.,250 F.3d 668 (9th Cir.200l)McHenry v. Renne,84 F.3d Il72 (9th Cir. 1996)Nevijel v. N. Coast Life Ins. Co.,651 F.2d 671 (9th Cir. 1981)Schmidt v. Herrmann,614F.2d 1221 (gthCir. 1980)Southland Sod Farms v. Stover Seed Co.,708 F.3d 1134 (gthCir. 1997)

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11St. Clair v. Chico,880 F.2d 199 (9h Cir. 1989)Swartz v. KPMG L.L.P., 47 6 F .3d 7 56 (9th Cir. 2001)Usher v. Los Angeles,828 F.2d 556 (9th Cir. 1987) .............Yourish v. Cal. Amplffier, 191 F.3d 983 (9th Cir. 1999)Eleventh Circuit OpinionsPelletier v. Zweifel,92l F.2d 1465 (l lth Cir. 1991)Federal Circuit OpinionsParadise Creations, Inc. v. U V Sales, nc.,315 F.3d 1304 (Fed. Cir. 2003)California State OpinionsFriends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,2}} CaL App.4th1470 (2011)Gutierrez v. G &M Oil Co.,I84 Cal. App. 4th551 (2010)California State StatutesCal. Civ. Proc. Code 335.1 (Deering)Cal. Corp. Code 2205(c), 5008.6(c) (Deering)I)elaware State OpinionsRobbins v. P'shp for Bank Capital, L.P.,2010 Del. Ch. LEXIS 167 (DeI. Ch. July 23,

20r0)Rules

ed. R. Civ. P. 8(a)(2)ed. R. Civ. F. 9(b)ed. R. Civ. P. t7(b)(2)

S.D. Cal. Civ. R. 83.3(k)

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I. INTRODUCTIONPlaintiffs allege at least 12 causes of action against Defendant National Family

Justice Center Alliance ("Alliance"); however, the Complaint fails to allege any actualfacts to support these claims. The Complaint quotes statements from and cites toAlliance's website; but other than that, there are no other factual allegations in theComplaint. The Complaint fails to provide facts showing how Alliance has anyconnection to Plaintiff Stuart or the two corporate plaintiff entities.

Alliance requests the Court dismiss with prejudice the Complaint becausePlaintiffs' have failed to state valid claims against Alliance for several other reasons,including: lack of standing, failure to file within applicable statutes of limitations, andfailure to properly plead the allegations in the Complaint.il. ALLEGATIONS AGAII{ST ALLIANCE IN COMPLAINT

On April 15,2010, Plaintiff Stuart was involved in an incident while attending aseminar at the San Diego County Bar Association, labeled in the Complaint as the"stuart Assault." (Complaint at f f 114,124-140.) As a result, Sheriff s deputies forcedStuart to leave the seminar. (Id. at fl 135.) The Complaint does not allege Alliance wasinvolved in the Stuart Assault.

The Complaint alleges "DEFENDANTS" owed one or more professional dutiesto plaintif, including the duty of ordinary reasonable care, the duty to act reasonably,and to avoid acting unreasonably and culpably. (Complaint at ufl 151-152, subd. A.)

The Complaint alleges Defendants utilize false and misleading commercialspeech to advertise and offer their legal services. (Complaint at tf 260.) Alliancerepresents they abide by ordinary and professional standards of care. (Complaint at11261, subd. D; Exhibit4I.)

Alliance operates the lead "technical assistance" center for the development ofFamily Justice Centers across the United States and around the world. (Complaint at fl262, subd,. A.) "Alliance is the coordinator of the current California Family Justice

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initiative, funded by the Blue Shield of California Foundation," and together they aresetting up additional centers in California. (Complaint atn262, subd. E.) Alliancestaffs the "FJC Legal Network, the Client Services Program, Camp HOPE, and the TeenRelationship Violence Program in the San Diego Family Justice Center." (Complaint at11262, subd. F.)All defendants claims are false and misleading. (Complaint at fl 265.)Defendants operate criminal enterprises depriving Plaintiffs of their property andliberty, utilizing misrepresentations in their commercial speech (Complaint at fl 266.)

The Complaint further names 48 defendants who purportedly engage in the SanDiego Family Law Community Domestic Dispute Industry Enterprise (SD-DDICE)which is a civil and criminal conspiracy. (Complaint at flJf 274-275.) The DDICEcompete illegally in the marketplace through "mutual anticompetitive pacts, fraudulentlicensing, certification, specialization, excluding or deterring fair competition."(Complaint at fl 280.) The DDICE constitutes a criminal enterprise providing alleged"forensic psychology" services to the public. (Complaint at fl 284.)

Additionally, the Complaint alleges Alliance engaged in Domestic DisputeIndustry Intervention Advocate Criminal Enterprise (DDI-IACE) which formulates andimplements policies relative to family law, child custody, and domestic relations.(Complaint at f 281r) The DDI-IACE allegedly commits harassment and abuse through"the illegal process of law, abuse of process, illegal advice, guidance, form selection,individual litigant support, advocacy, and services." (Complaint T1[ 282,285.) TheDDI-IACE's commercial purpose is to generate revenue and income by expanding theENTERPRISE through fraud on the United States, and state and local charities.(Complaint at fl 283.)

Alliance assists citizens in obtaining DVILS ORDERS through illegal formwork,technical assistance and unauthorized practice of law. Alliance provides "detailed, casespecific advice, instructions, guidance direction advocacy, oversight and monitoring ofthe process bywhich the DVILS ORDERS are issued." (Complaint atfl 31S.){006494s4.DOCX} 2

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Plaintif appear to allege the following causes of action against Alliance, inaddition to numerous other defendants:o Count 3-Culpable Breach of Duty under Govt. Code S20 / Deprivation of

Constitutional Rights 42USC 1983 (Complunt atIlT 151-157.)o Count l2-Obstructing justice; intimidatingparty,witness, or juror 42 USC1985(2) (Complaint at lJfl 193-204.). Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 19S5(3)(a)(Complaint at flfl 205-206.)o Count l4-Conspiracy deprive of Constitutional Rights 42 USC 1985(3Xb)(Complaint at flfl 207-205.)o Count 15-Conspiracy to Deprive of Constitutional Rights 42 USC 1985(3)(c)(Complaint at ]n 209 -210.). Count 2l-False Designation of Origin, False Description Lanham Act 15 USC1125 (Complaint at [n260-267.)o RICO Enterprise l*California Domestic Dispute Criminal Enterprise(Complaint at tftl 273-274.)

o RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal(Complaint at lffl 275-280.)o RICO Enterprise 3-Domestic Dispute Industry Intervention Advocate CriminalEnterprise (Complalrnt at lTll 281-283.) RICO Enterprise 4-Forensic Investigator Criminal Enterprise (Complaint at flfl284-286.). Racketeering Claim 2-18 USC 1962(c)(d) Honest Service Fraud 18 USC 134618 USC 1346 (Complaint at'lifl 345-347.). Declaratory Judgment 28 USC 2201 (Complaint at tfll 392-396.)

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III. THERE IS I\O JURISDICTION FOR THE COMPLAINTA. Standard for L2(bX1,) Motion to Dismiss for Lack of Subiect MatterJurisdictionArticle III of the U.S. Constitution limits the subject matter jurisdiction of federal

courts to matters that arc ripe and where the Plaintiffs have standing. Allen v. Wright,468 U.S. 737,750 (19S4). The party asserting subject matter jurisdiction has the burdenof establishing it is the proper party to bring the matter before the court. Kokkonen v.Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The doctrine of ripenessallows a court to dispose of matters that are premature or too speculative. To establishfederal subj ect matter jurisdiction:

First, the plaintiff must prove that he suffered an "injury infacl," i.e., an"invasion of a legally protected interest which is (a) concrete andparticularized, and (b) actual or imminent, not conjectural or hypothetical,"id. a|560 (citations, internal quotation marks, and footnote omitted).Second, the plaintiff must establish a causal connection by proving that herinjury is fairly traceable to the challenged conduct of the defendant. Id. at560-61. Third, the plaintiff must show that her injury will likely beredressed by a favorable decision.Chandlerv. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115, 1I2l-22 (9th Cir. 2010)(quoting Lujan v. Defenders of Witdtife,504 U.S. 555, 560- 6l (lgg2)). Standing andripeness are properly raised in a motion to dismiss under Rule lz(b)(I). St. Clair v.Chico,880 F.2d 199,201(9th Cir. 1989)B. Corporate Entity Plaintiffs Lack Standins to File This Lawsuit1. California Coalition for Families and Children is not Renresented bv

CounselWhether a corporation can file suit in federal court is determined "by the law in

which it was organized." Fed. R. Civ. P. l7(b)(2). The California Coalition forFamilies and Children, Inc. ("CCFC") is a Delaware corporation, incorporated the daybefore the current action was filed. (Complaint at fl 1; RIN, at Ex. 1, November 25,2013, Delaware Department of State "Entify Details" print-out for Plaintiff California{o064e4s4.DOCX} 4




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Coalition for Families and Children.) Accordingly, CCFC's ability to file a lawsuit isgoverned by Delawarelaw, which states a corporation must appear through counsel andcannot proceed in propria persona. Robbins v. P'ship for Bank Capital, L.P.,2010 Del.Ch. LEXIS 167, at*2 (Del. Ch. July 23,2010). Additionally, this Court only allows acorporation to appear through an attorney permitted to practice in the Southem Districtof California. S.D. Cal. Civ. R. 83.3(k).

The Complaint in this action identifies Colbern Stuart and Dean Browning Webb,as attorneys of record for Plaintif CCFC and Lexevia, PC. (Complaint at page 1, lines1-8.) However, Stuart is unable to appear as counsel for CCFC. The Complaint allegesStuart is an attomey licensed and admitted to practice in California, Arizona, andNevada, as well as many federal court district (Complaint at lffl 3,102-106,8x.2.)

Flowever, Stuart was disbarred in Califomia in December 2012 due to hiscriminal conviction for threatening and harassing his ex-wife. (RIN at Ex. 2, December2,2013, State Bar of California attorney status printout for Colbern Stuart, with StateBar Court decision and order attached.) Further, Stuart's Nevada and Arizona legallicenses are cuffently suspended. (RJN at Ex. 3, December 2,2013, State Bar of Nevadaattorney status print out for Colbem Stuart, with State Bar Court decision and orderattached; and, RIN at Ex. 4, December 2,2}I3,State Bar of Arzona attorney status printout for Colbern Stuart.) Because Stuart is not licensed to practice in the SouthernDistrict, or anywhere else, he cannot act as CCFC's counsel in this matter.

CCFC's other purported counsel, Mr. Webb, is licensed in the state ofWashington. The Complaint states Mr. Webb has an application for'ro hac vicepending. (Complaint atpage 1.) However, this application is not reflected in theCourt's docket for this case. Additionally, Mr. Webb failed to sign the Complaint.(Complaint atpage 1, line 4.) Thus, Mr. V/ebb cannot act as CCFC's counsel either.

Because CCFC is attempting to proceed without counsel in violation of Delawarelaw, the Court should dismiss with prejudice all of CCFC's claims in this action.

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2. Lexevia is a Suspended CorporationLexevia is a California professional corporation, governed by California law.

(Complaint at fl 1.) According to the California Secretary of State, Lexevia is currentlya suspended corporation. (RIN at Ex. 5, Novemb er 25,z}I3,Califomia Secretary ofState Business Entity detail status printout for Lexevia, PC.) A suspended corporationlacks capacity to sue in Friends of Shingle Springs Interchange, Inc. v. Cnty. of ElDorado,200 CaI. App. 4h1470,1482 (2011); Cal. Corp. Code $$ 2205(c), 5008.6(c)(Deering). Additionally, a plaintiff corporation must have standing to sue in federalcourt under Article III of the Constitution. Paradise Creations, Inc. v. U V Sales, Inc.,315 F.3d 1304,1308 (Fed. Cir. 2003). Standing is determined at the inception of thesuit; thus, a suspended corporation lacks capacity to sue even if it revives its statusfollowing comencement of a lawsuit. Id. at 1309-10.

As a suspended corporation, Lexevia lacks capacity to maintain this action.Further, Lexevia has appeared in this action without counsel. Similar to Delaware law,a Califomia corporation may only appear in an action through counsel. Gutierrez v.G &M Oil Co.,184 Cal. App.4th55I,564 (2010); see also S.D. Cal. Civ. R.83.3(k).Because Lexevia is not represented by counsel, the Court should dismiss with prejudiceall Lexevia's claims in this action.C. Jurisdiction could Never be Sustained because Complaint Violates Rute I

Federal Rule of Civil Procedure 8 requires that a complaint contain a short andplain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ.P. 8(a)(2). Inanalyzing this issue, the Ninth Circuit has stated:

[W]e have never held - and we know of no authority supporting theproposition - that a pleading may be of unlimited length and opacity. Ourcases instruct otherwise. See, e.g., McHenry v. Renne,84 F.3d lI72,lI77-80 (gth Cir.1996) (upholding a Rule 8(a) dismissal of a complaint that wasargumentative, prolix, replete with redundancy, and largely irrelevmt );Hatch v. Reliance Ins. Co., 7 58 F .2d 409, 415 (9th Cir. 1985) (upholding aRule 8(a)) dismissal of a complaint that exceeded 70 pages in length, fandwas confusing and conclusory ); Nevijel v. N. Coast Life Ins. Co.,651 F.2d677,674 (9th Cir. 1981) (holding that Rule 8(a) is violated when a{0064e454.DOCX} 6




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complaint is excessively verbose, confusing and almost entirelyconclusory ); Schmidt v. Herrmann,614F.2d 1221,1224 (9th Cir. 1980)(upholding a Rule 8(a) dismissal of confusing, distracting, ambiguous, andunintelligible pleadings ).... Rule 8(a) has been held to be violated by apleading that was needlessly long, or a complaint that was highlyrepetitious, or confused, or consisted of incomprehensible rambling.[Citation.] Our district courts are busy enough without having to penetratea tome approaching the magnitude of War and Peace to discem aplaintiff s claims and allegations.

Cafasso v. Gen. Dynamics C4 Sys. , 637 F .3d 1047 , 105 8 (9th Cir. 20II) (request to file7 7 3 -page amended complaint denied).

The Complaint in this action is 175 pages in length. The length balloons toapproximately 1,300 pages when the voluminous exhibits are included. The Complaintis also extremely difficult to follow. It attempts to weave a complicated criminal andcivil cons pfuacybetween everyone who ever touched one of Mr. Stuart's court matters.The Complaint also utilizes an incomprehensible network of acronyms with passageslike [t]he SD-DDICE, acting in concert with the San Diego DDIJO, SCCDC, SDCBA,DDISO, and the SAC engage in. . . (Complaint at fl 2:79.)

Thus, the Complaint consists of incomprehensible rambling and requires thedefendants and the Court to penetrate atome approaching the magnitude of War andPeaceto discern [the] plaintiff s claims and allegations. Id. Additionally, theComplaint asserts no less than 16 claims against Blanchett and ABC&K that areconfusing and conclusory. Id. This Complaint requires a court and the adverseparties to try to fish a gold coin from a bucket of mud[,] United States v. Lockheed-Martin Corp.,328 F.3d 374,378 (7th Cir. 2003). The Court should dismiss withprejudice the entire Complaint for failure to comply with Rule 8.

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IV. PLAINTIF'F'S' CLAIMS AGAINST ALLIANCE ARE NOTSUSTAINABLEA. Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim

Federal Rules of Civil Procedure rule 12(b)(6) allows a defendant to challengesufficiency of the pleadings where the pleadings either lack a cognizable legal theoryor the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.Pacffica Police Dep't,901 F.2d 696,699 (9th Cir. 1988). In recent years, the U.S.Supreme Court established a more stringent standard of review for 12(b)(6) motions.See Ashcroft v. Iqbal,556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,550U.S. 544(2007).

To survive a motion to dismiss under this new standard, a complaint mustcontain sufficient factual matter, accepted as true, to ostate a claim for relief that isplausible on its face. ' Ashcroft,556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly,550u.s. s44, s70 (2007)).

A claim has facial plausibility when the plaintiff pleads factual content thatallows the court to draw the reasonable inference that the defendant is liable for themisconduct alleged . Id. (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 556 (2007)).Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience andcommon sense. Id. at 679 (citng lqbat v. Hasty,490 F.3d 143, 157-58 (2d Cir.2007)).

The Court must therefore identify the allegations in the complaint that are notentitled to the assumption of truth and.evaluate the factu al allegations in [the]complaint to determine if they plausibly suggest an entitlement to relief. Id. at 680-81.But only factual allegations must be accepted as true, not legal conclusions. Id. at 678.

Further, [t]hreadb are recitals of the elements of a cause of action, supported bymere conclusory statements, do not suffic e. Id. Factual allegations must be enough toraise a right to relief above the speculative level. Bell Atl. Corp.,550 U.S. at 555.

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[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.Ashcroft,556 U.S. at 679.

Finally, in ruling on a motion to dismiss, this Courtmay take judicial notice ofmatters of public record that are not subject to reasonable dispute. Lee v. City of L.A.,250 F.3d 668,689 (9th Cir. 2001). The Ninth Circuit has extended the 'incorporationby reference' doctrine to situations in which the plaintiffls claim depends on thecontents of a document, the defendant attaches the document to its motion to dismiss,and the parties do not dispute the authenticity of the document, even though the plaintiffdoes not explicitly allege the contents of that document in the complaint. See Knievelv. ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) Accordingly, this Court mayappropriately review the government issued documents associated with Stuart's statusas a disbarred or suspended attorney and the status of the corporate plaintif.V. PLAINTIF'F'S' CIVI RIGHTS CLAIMS AGAINST ALLIANCE ARE

UNSUSTAINABLEA. Counts 3,12,13,14, and 15 are barred by the Two-lfear Statute dLimitations for Tort ClaimsFederal court claims brought under Sections 1983 and 1985 are regulated by theapplicable statute of limitations of the forum state in which the claim is brought. Usher

v. Los Angeles,828F.2d 556, 558 (9th Cir. 1987). Accordingly,atort claiminCalifornia must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code$ 335.1 (Deering).Plaintiffls 1983 and 1985 claims against Alliance are based on the so-calledstuart Assault. Count 12 allegng obstructing justice, etc. is based on the allegationthat the Stuart Assault hindered the administration ofjustice for Plaintiffs. (Complaintat][z.) Counts 12 through 15 allege all Defendants violated Plaintiffs' civil rights bycommitting the Stuart Assault. (Complaint at lifl 205-210,216-235.) Thus, each ofthese claims is based on the facts concerning the Stuart Assault.

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However, the Complaint alleges the Stuart Assault occurred on April 15, 2010.(Complaint at fl II4.) Plaintif filed their Complaint on August20,2073, three yearsand four months after the Stuart Assault. Because Counts 3 and 12-15 are tort basedclaims, they must have been filed within California's two-year statute of limitations.This did not occur; hence, these claims must be dismissed with prejudice againstAlliance.1. Counts 3" 12" 13.ll"and 15 Fail to Allese anv Facts asainst Blanchet and

ABC&KAs discussed above, Counts 3 and 12 through 15 allege all Defendants violated

Plaintiffs' civil rights by committing the Stuart Assault. (Complaint at fllf 205-210,216-235.) However, the Complaint fails to identify Alliance's connection to the StuartAssault. The Complaint does not allege Alliance was present at the seminar on April15,2010. The Complaint does not state facts alleging Alliance was part of the"conspiracy" to have Stuart ejected from the seminar. In fact, the Complaint does notmention Alliance at aII in reference to the Stuart Assault.

Without facts alleging ABC&K's participation in the Stuart Assault, the claimedcivil rights violations against ABC&K are not valid claims, and must be dismissed withprejudice.2. Plaintiffls Civil Rights Claims are barred because Alliance is not a State

ActorTo state a claim under Section 1983, a plaintiff must allege: (1) a violation of a

right secured by the Constitution and the laws of the United States; and (2) that thedeprivation was committed by a person acting under color of state law. See West v.Atkins,487 U.S. 42,48 (1988); Ketchum v. Cnty. of Alameda, 811 F.2d 1243,1245 (gthCir. 1987).

In this case, the Plaintiffs' allegations against Alliance consist of general citationsto the Alliance website and its relation to the San Diego County Family Court system.Other than the work it provides to individuals related to family court proceedings, the{0o6494s4.DOCX} 10

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Complaint fails to allege Alliance has any relation to the government, or was workingunder color of state law. Just like the attomey defendants to the Complaint, Alliance isnot rendered a state actor merely by participating in the Family Court system. See e.g.Hansen v. Ahlgrimm,450 F.2d,768,770 (7thCir. I 975).

There are simply no'facts alleged that support a claim Alliance is a state actor.Without said allegations, Alliance cannot be liable for civil rights violations underSections 1983 and 1985. Accordingly, Plaintiffs claims against for civil rightsviolations against Alliance are invalid, and should be dismissed with prejudice.VI. LANHAM ACT CLAIMS AGAII\ST ALLIANCE ARE I\OT VIABLE

To allege aLarfrtarnAct violation, Plaintiffs must allege Alliance (1) "made falseor misleading statements as to his own product for another's]"; (2) "there is acfualdeception or at least a tendency to deceive a substantial portion of the intendedaudience"; (3) "the deception is material in that it is likely to influence purchasingdecisions"; (4) "the advertised goods traveled in interstate cormece;" and (5) "there isa likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc."Warner-Lambert Co. v. BreathAsure, [nc.,204F.3d87,9I-92 (3d Cir. 2000); SouthlandSod Farms v. Stover Seed Co.,I08 F.3d II34,lI39 (9th Cir. 1997). Under thisstandard, a'laintiff must set forth what is false or misleading about a statement, andwhy it is false." Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42 F.3d 1541,1548 (9th Cir. 1994). To allege aLanhamAct claim due to misleading statements,plaintiffs are "required to allege facts suggesting that the markelace was actuallyconfused or misled, not just that the markelace could have been confused or misled."Accenture Global Servs. GmbH v. Guidewire Softwar"e, 1nc.,581 F. Supp. 2d 654,666-67 (D. Del. 2008).A. The Complaint Fails to Allese Alliance is a Competitor with Plaintiffs

A claim for false advertising under the Lanham Act will not be sustained"fw]ithout a showing of direct competition." Jurin v. Google, nc.,695 F. Supp. 2d1Il7,Il22 (E.D. CaL.2010). In Jurin, the court granted defendant's 12(b)(6) motion to{006494s4.DOCX} 11




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dismiss because there was no showing plaintiff and defendant were direct competitors,stating: fd]efendant nonetheless does not directly sell, produce, or otherwise competein the building materials market. To maintain a claim for false advertising under theLanham Act the parties have to be direct competitors. Id. A claim for false advertisingunder the Lanham act requires: that the injury is 'competitive,' or harmful to theplaintiff s ability to compete with the defendant. Jack Russell Terrier Network v. Am.Kennel Club, nc.,407 F.3d 1027,1037 (9th Cir. 2005). In the Ninth Circuit a plaintiffmust be in actval or direct competition with the defendant and assert a competitiveinjury to establish standin g. FLIR,lys. v. Sierra Media, hnc.,903 F. Supp. 2d,1120,rt42 (D. or. 2012).

Count 2l of the Complaint alleges violation of the Lanham Act against allDefendants. However, the Complaint fails to allege Alliance is direct competitors withPlaintiffs. Plaintiff Stuart is a disbarred attorney, trtd cannot practice in the family coursystem. Plaintiff Lexevia is a suspended corporation, and cannot by definition be incompetition with the Alliance. Plaintiff CCFC did not even exist until the day beforethe Complaint was filed, thus it could not have been in competition with Alliance at thetime of the events alleged in the Complaint.Plaintiffs'Lanhartact claims must fail because not one of the Plaintif is incompetition with Alliance, and should be dismissed with prejudice.B. Plaintiffs' Lanham Act Alleeations must be Analyzed under Heishtened

Fraud Pleadins StandardUnder Federal Rule of Civil Procedure 9(b), claims alleging fraud are subject to a

heightened pleading standard requiring the plaintiff to state with particularity thecircumstances constituting fraud. Fed. R. Civ. P. 9(b). [T]he plaintiff must set forthan explanation as to why the statement or omission complained of was false ormisleading. Yourishv. Cal. Amplifier, 191 F.3d g83,gg3 (9th Cir. lggg). To avoiddismissal, Rule 9(b) requires plaintiffs to allege the time, place and specific content of{00649454.DOCX} t2




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the false representations as well as the identities of the parties to this representation.Edwards v. Marin Park, lnc.,356 F.3d 1058,1065-66 (9th Cir. 2004).

The Lanham Act allegations against Alliance fail to meet the Rule 9 pleadingstandard. The Complaint merely alleges misleading advertising against all Defendants.(Complaint at lffl 260,265.). As to Alliance, the Complaint offers a citation to anexhibit containing pages from the Alliance website, and quoted language from thewebsite. (Complaint at fl 261, subd. A-G; Exhibit 41.) The complaint contains nofurther allegations against Alliance related to the Lanham Act claims. Thus, theComplaint fails to explain why the Alliance website is misleading or the exact nature ofwhy the statements are fraudulent. For these reasons, Plaintiffs Lanham Act claims arenot properly pleaded and must be dismissed with prejudice.VII. PLAINTIF'FS' VIOLATE RULE 9) BECAUSE THEIR RICO CLAIMSFAIL TO ALLEGE PREDICATE ACTS AGAINST ALLIANCE WITH

PARTICULARITYThe Complaint fails to expressly identify any RICO predicate acts by Alliance,

but again sirply refers to several acts by Defendants. To avoid dismissal, Rule 9(b)requires that Plaintif state the time, place and specific content of the falserepresentations as well as the identities of the parties to this representatton. Id.Further, a plaintiff must set forth what is false or misleading about a statement, and

why it is false. Decker,42F.3d at 1548.Plaintiffs have done none of these things. Rule 9(b) does not allow a complaint

to merely lump multiple defendants together but 'require[s] plaintiffs to differentiatetheir allegations when suing more than one defendant ... and inform each defendantseparately of the allegations surounding his alleged participation in the fraud. ' Swartzv. KPMG L.L.P.,476F.3d 756,764-65 (9th Cir.2007). Courts have repeatedly insistedthat, in addition to particulanrty of time, place, and manner of each act of fraud, the roleof each defendant in each scheme be described in RICO actions alleging the predicate

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acts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940 F .2d 397 ,40s (9th Cir. 199r).

In Pelletier v. Zweifel,92I F.2d 1465, 1518-19 (11th Cir. l99l), the EleventhCircuit affirmed the district court's dismissal of a RICO claim because it constitutedshotgun pleadings that made it extremely difficult for the court and opposing partiesto identify the facts that would give rise to a cognizable claim. Pelletier,92l F .2d at1518 (noting that defendant and the district court had to sift through the facts presentedand decide for themselves which were material to the particular cause of action asserted,a difficult and laborious task indeed. ; see also Savage v. Council on American-IslamicRelations, Inc., 2008 WL 2951281, at*14 (N.D. Cal. July 25,2008) (RICO claiminsufficient where plaintiff set forth a redundantnarrative of allegations andconclusions of law, but fmade] no attempt to allege what facts are material to his claimsunder the RICO statute, or what facts are used to support what claims under particularsubsections of RICO )); Federal Reserve Bank of San Francisco v. HK Systems,1997WL 227955, at *3 (N.D. CaL 1997) (complaint insufficient for failure to identifyexactly which acts are 'predicate acts' for RICO liability )

Similarly here, Plaintif' RICO allegations, just like the majority of allegations inthe Complaint, merely lump multiple defendants together to allege wide rangingschemes and conspiracies. The Complaint is 175 pages long with almost 400paragraphs. Due to the length of the Complaint and its continual use of confusingacronyms, Defendants are required to sift through the facts presented and decide forthemselves which were material.to the particular causefs] of action asserted againstthem. Under these circumstances, it is nearly impossible for Alliance to determinewhich, if any, predicate acts are alleged against them. This format of Complaintviolates Rule 9(b).

Plaintiffs' complete failure to plead this element requires dismissal withprejudice.

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VIII. CONCLUSIONFor the above reasons, Defendant National Family Justice Center Alliance

requests the Court dismiss Plaintiffs' Complaint with prejudice.

Dated: December 3, 2013Respectfully submitted,WINGERT GREBING BRUBAKER JUSKIELLPBy: s/ Charles R. GrebinsCHARLES R. GREBINGCHRISTOPHER W. TODDANDREW A. SERVAIS

D'WAYNE H. STEINAttornevs for Defendant. NATIONALFAMILV JUSTICE CETER ALLIANCE


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