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CHARLES R. GREBING, State Bar No. 47927c gr e b in g@w ingert I aw. c omANDREW A. SERVAIS, State Bar No. 239891as erv ai s @w ing er tl aw, c omDWAYNE H. STEIN, State Bar No. 261841ds t ein@w ingertl aw. c omWINGERT GREBING BRUBAKER & JUSKIE LLPOne AmericaPlaza, Suite 1200600 West BroadwaySan Diego, CA 92101(619) 232-815 1 ; Fax (619) 232-466sAttorneys for DefendantsSHARON BLANCHET ANd ASH\MORTH, BLANCHET, CHRISTENSEN &KALEMENKARIAN UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIACALIFORNIA COALITION FORFAMILIES AND CHILDREN, a DelawareCorporation, LEXEVIA, PC, a CaliforniaProfessiona[ Corooration. and COLBERTC. STUART, an individuI,

Plaintiffs,

Case No. : 3: 13- Iv-01944-CAB-BLMMEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANTS SHARONBLANCHET AND ASHWORTH,BLANCHET, CHRISTENSEN &KALEMENKARIAN'S MOTION TODISMISS PLAINTIFFS'6ed. R. Civ. P.and Fed. R. Civ. P.AS SOCIATION" a California Corporation;SAN DIEGO CUNTY SFIERIF'S

VS.SAN DIEGO COLINTY BAR

t00649477.DOCX)

COMPLAINT12(bX1), 12(bXe(b)lDate: January 24,2014Time: 2:00 o.m.Ctrm: Couriroom 4CJudge: Cathy Ann Bencivengo, Presidin

arrRAD

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

Case 3:13-cv-01944-CAB-BLM Document 53-1 Filed 12/03/13 Page 1 of 31

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FAMILY JUSTICE CENTER ALLIANCE,

IERER ANDS a Professionalan,aco{poratlon,Defendants.

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u.

VII.

LANHAM ACT CLAIMS AGAINST BLANCHET ARE NOT VIABLE...............A. The Complaint Fails to Allege Blanchet and ABC&K are Competitors withPlaintiffs.....B. Plaintiffs' Lanham Act Allegations must be analyzed under Heightened FraudPleading StandardPLAINTIFFS' VIOLATE RULE 9(B) BECAUSE THEIR RICO CLAIMS FAIL TOALLEGE PREDICATE ACTS WITH PARTICULARITYVIII. CONCLUSION

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TABLE OF AUTHORITIPS

Supreme Court OpinionsAllen v. Wright,468 U.S. 737 (1984)Ashcroft v. Iqbal,556 U.S. 662 (2009)BE&K Constr. Co. v. NLRB,536 U.S' 516 (2002) ..',.Betl Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....,..Cipollonev. Liggett Group, lnc,,505 U.S. 504, 120L.F,d.2d407,112 S. Ct. 2608 (1992) ""'E. R.R. Presidents conf, v. Noerr Motor Freight, lnc.,365U.5.I27 (1961)Erie R.R. v, Tompkins, 304 U.S. 64 (1938)Gotdfarb v. va. state Br,421 U.S. 773,95 S. Ct. 2004, 44 L.Ed.2d 572 (1975) '...Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,545 U.S. 308 (2005) '.....Gunnv. Minton,133 S. Ct. 1059 (2013) ...'.Johnsonv. De Grandy,5l2 U.S. 997 (1994)Kokkonen v. Guardian Life Ins. Co' of Am., 511 U'S. 375 (1994) ....'Morylandv. Louisiana,45Ill.S.725,68 L. Ed. 2d576,101 S. Ct.2114 (1981)Metro, Life Ins. Co. v. Massachusetts,4Tl rJ.5.724,85 L. Ed. 2d728,105 S' Ct. 2380(1e8s) ...Mine't/orkers v. Pennington,3Sl U'S. 657 (1965)N.Y. State Conf of Btue Cross & Blue Shietd Ptans v. Travelers Ins. Co., 115 S. Ct' 1671

(1ees) .......Ohratikv. Ohio State Bar Ass'n,436 U.S. 447,98 S. Ct. 1912,56 L' Ed. 2d 444 (1978)PolkCnty. v. Dodson,454 U.S.312 (1981)West v. Atkins,487 U.S. 42 (1988)Third Circuit OpinionsAccenture Gtobal Servs, GmbH v. Guidewire Soft'wre, nc.,581 F. Supp. 2d654 (D' Del'2008) .......Raitport v. Provident Nat'l Bank,451 F. Stpp. 522 (8.D. Pa. 1978)Warner-Lambert Co. v. BreathAsure, Inc.,204F.3d87 (3dCir' 2000)Fourth Circuit OpinionsCoyne & Delany Co. v. Selman, gS F.3d 1457 (4thCit.1996)Custer v. Sweeney, 89 F.3d 1156 (4rh Cir. 1996)Seventh Circuit OpinionsUnited States v. Lockheed-Martin Corp.,328 F.3d 374 (7th Cir. 2003)

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Ninth Circuit OpinionsAragonv. Federated Dep't Stores, nc,,750F.2d1447 (9th Cir. 1985)Balistreri v. Pacifica Police Dep't,901 F.2d 696 (gth Cir. 1988) .'.'....Cafasso v. Gen. Dynamics C4 Sys.,637 F.3d 1047 (9th Cir. 2011)Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115 (9th Cir. 2010) .......Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42F.3d 1541 (9th Cir. 1994) 20,22Edwards v. Marin Park, hnc.,356 F.3d 1058 (9th Cir.2004) .... 2Federal Reserve Bank of San Francisco v HK Systems,1997 WL227955, at*3 (N.D. Cal 2teeT) ....FLIR, s. v. Sierra Media, nc.,903 F. Supp. 2dlI20 (D. Or.2012)Franklinv. Or., Stte lelfare Div.,662F.2d1337 (9th Cir. 1981) .Hatch v. Reliance Ins. Co.,758 F,2d 409 (9th Ctu. 1985) ....Jack Russell Terrier Network v. Am. Kennel Club, Inc., 407 F .3d 1027 (9th Cir. 2005)Johnsenv. Rogers,551 F. Supp. 281 (C.D. Cal.1982)Jurinv. Google, hnc.,695 F. Supp.2dlllT (8.D. CaI.2010) .'.Kearneyv. Foley & Lrdner, 553 F. Supp. 2dII78 (S.D. Cal. 2008)Ketchum v. Cnty. of Alameda, 81 I F.2d 1243 (9th Cir. 1987) ...Knievel v. ESPN, 393 F.3d 1 068 (9th Cir. 2005) .......................Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (9th Cit. 1991) ........Lee v. City of L.A,,250 F.3d 668 (9th Cir. 2001) .MclIenry v. Renne,84 F.3d Il72 (gthCfu.1996)

2003) .....Usher v. Los Angeles,828F.2d 556 (9th Cit. 1987)Yourishv. CaL Amplffier,191 F.3d 983 (9th Cir. 1999)

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Neibel v. Trans World Assur. Co.,108 F.3d II23 (gthCir. 1997) ....Nevijelv. N. Coast Life Ins. Co.,65lF.2d67l (9th Cir. 1981)Svage v. Council on Am.-Islamic Relations, Inc., 2008 WL2951281 (NLD. Cal. July 25,2008) 2Schmidt v. Herrmann, 614 F.2d 1221 (9th Cir. 1980)Simmons v. Samento Cnty. Superior Court,318 F.3d 1156 (9th Cir. 2003)Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006)Southland Sod Farms v. Stover Seed Co., 108 F.3d lI34 (gthCir.1997) ........

1

2St. Clir v. Chico,880 F.2d 199 (9th Cir. 1989) .5Sw ar tz v. KP MG L. L. P., 47 6 F .3 d 7 5 6 (gth Cir. 2007) ....... 2Tahoe-Sierca Pres. Council, Inc, v, Tahoe Reg'l Planning Agency,322F.3d 1064 (9th Cir

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Eleventh Circuit OpinionsPelletier v. ZweiJel,92l r-.2d 1465 (l1th Cir. l99I)Federal Circuit OpinionsParadise Creations, Inc. v. (J V Sales, Inc.,315 F.3d 1304 (Fed. Cir. 2003)United States Code18 U.S.C. $ 1e6l (2006)28 U.S.C. $ 314 (2006)28 U.S.C. $ 1331 (2006)California State OpinionsAlfaro v. Cmty. Hous, Improvement Sys. & Planning Ass'n,I7l Cal. App. 4th 1356 (2009)Eichman v. Fotomat Corp., 147 CaL App. 3d 1 170 (1983) ...Friends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,200 Cal. App. 4lh1470

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(2011) ............,.,'''.'.'......... 1......... t2.........1

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Gutierrez v. G & M Oil Co.,l84 Cal. App. 4th 551 (2010)Jacksonv. Johnson,5 Cal. App.4th 1350 (1992) ..............Locktonv. O'Rourke,l84 Cal. App. 4th 1051 (2010) ........Zevnikv. Superior Court,159 Cal. App. 4th 76 (2008) ........California State StatutesCal. Civ. Proc. Code $ 335.1 (Deering)Cal. Civ. Proc. Code $ 3a0.6(a) (Deering)Cal. Corp. Code $$ 2205(c),5008.6(c) (Deering)Delaware State OpinionsRobbins v. P'shipfor Bank Capital, L.P.,2010 Del. Ch. LEXIS 167 (Del. Ch. July 23,2010)RulesFed. R. Civ. P. 8(a)(2) ....Fed. R. Civ. P.9(b) .........Fed. R. Civ. P. I7(b)(2) ..S.D. Cal. Civ. R. 83.3(k)

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I. INTRODUCTIONPlaintiff Colbem Stuart ( Stuart ) already sued Sharon Blanchet ( Blanchet )

and her firm, Ashworth, Blanchet, Christenson, & Kalemenkarian (collectivelyABC8K ) in 2010. (See Exhibit 14.) This complaint stated 8 causes of actionalleging ABC&K should not have recommended Stuart stipulate to retaining StephenDoyne as a mediator in the family law matter. (Exhibit 14 at ITT 11 ,I4.) Stuart wenton to allege Blanchet made several representations as to Doyne's qualifications andmethods. (Exhibit 14 at'lT'lT 14-16.) Stuart aileged Blanchet failed to advise him ofDoyne's close relationships with opposing counsel in Stuart's divorce proceeding(Exhibit 14 at TT 17- 1 8), and his alleged lack of qualifications to perform family courtmediations (Exhibit 14 atI|] 20-65).

ABC&K fled an Anti-SLAPP Motion to Strike arguing Stuart's allegations werebased on protected petitioning activities. In striking Stuarts complaint in its entirety,the trial court found Stuart's First Amended Complaint invoked the SLAPP statutebecause the statements or conduct allegedly performed by Blanchet are protectedwritten or oral statements made before or in connection with the family court judicialproceeding and Stuart's attempts to mask this action as a claim for legal malpracticewhen the gravamen of his allegations focuses on the protected conduct of Dr. Doyneand Judge Schall not Blanchet or her firm's malpractice or breach of fiduciary duty.(RIN at Ex. 1, September 24,2010 San Diego County Superior Court Order StrikingStuart' s First Amended Complaint.)

The trial court found Stuart failed to oppose this motion and provides noevidence to support the contention he would have obtained a more favorablecustody/visitation order or divorce decree but for Blanchet's conduct. (RlN at Ex. 1.)

ABC&K requests this Court dismiss Plaintiffs' Complaint with prejudicebecause the allegations against ABC&K have all been previously decided in state court.Additionally, Plaintif' have'failed to state valid claims against ABC&K for severalother reasons, including lack of standing, failure to file within applicable statutes of{00649477.DOCXiMEMORANDUM ISO MOTION TO DISMISS COMPLAINT- Case No.3:13-CV-01944-CAB-BLM


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limitations, and failure to properly plead the allegations in the Complaint.il. ALLEGATIONS AGAINST ABC&K IN CURRENT COMPLAINTOn September 12,2008, Stuart entered into a contract with Doyne, Inc. to provide

family law mediator services; Doyne allegedly breached the contract and retaliatedagainst Stuart by, among other things, filing false reports, perjuring himself, and makingterroristic threats against Stuart. (Complaint at flfl 216-217,219, and225-230.)

Stuart hired Doyne o'pursuant to various representations andwarranties byBlanchet, as set forth in Stuart's 2010 verified complaint for legal malpractice againstABC&K. (Complaint at flfl 232,235.)

On April 15,2010, Stuart was involved in an incident while attending a seminarat the San Diego County Bar Association, labeled in the Complaint as the "StuartAssault." (Complaint at J|fl ll4,124-140.) As a result, Sherifls deputies forced Stuartto leave the seminar. Qd. at fl 135.) The Complaint does not allege Blanchet orABC&K were involved in the "Stuart Assault."

The Complaint fuither alleges "DEFENDANTS" owed one or more professionalduties to plaintiffs, including the duty of ordinary reasonable care, the duty to actreasonably, and,to avoid acfingunreasonably and culpably. (Complaint at Jfll l5l-152,subd. A.)

Doyne, acting under color of law, allegedly induced Plaintiff into engagingDoyne's services, and each defendant "facilitated, encouraged, was deliberatelyindifferent to, was aware of and acquiesced to" Doyne's actions. (Complair atll\254,256.) "In reliance on Defendants' acts and omissions" Plaintiff was induced intoretaining unspecified DEFENDANTS, and paid in excess of $350,0 00. (Id. at u 258.)ABC&K allegedly represented they "abide by ordinary and professional standardof care" which is false and misleading because all "defendants" allegedly operatecriminal enterprises depriving Plaintif of their property and liberty, utilizingmisrepresentations in their commercial speech. (Compl aint at \11265 , 266.)

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The Complaint alleges 48 named 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 flfl 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. (Compl aint at1t284.) DefendantsBlanchet, Bierer, Ftz, Viviano, Doyne, Inc., form the "Stuart Ad Hoc CriminalEnterprise" which commits several frauds in the practice family law, child custody, anddomestic relations. (Complaint at flfl 288-299.)

In December 2007, ABC&K delivered invoices for services to Stuart through themail, and fraudulentlyoocommunicated" invoices to Stuart from December 2007 throughNovember 2008 in the approximate amount of $250,000. (Complaint at 1[1[337-338,340.)

Plaintif appear to allege the following causes of action against ABC&K, inaddition to numerous other defendants:

o Count 3-Culpable Breach of Duty under Govt. Code $ 820 /Deprivation ofConstitutional Rights 42 USC 1983 (Complaint at u$ 15 1- 1 57.)r Count 12-Obstructing justice; intimidating party, witness, or juror 42 USCI98s(2) (Complaint at flfl 193-204.)o Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 1985(3)(a)(Complaint at flfl 205-206.)o Count l4-Conspiracy deprive of Constitutional Rights 42USC 1985(3Xb)(Complaint at flfl 207-208.)o Count 1S-Conspiracy to Deprive of Constitutional Rights 42 USC 1985(3)(c)(Complaint at fltl 209-210.)o Count L7-Breach of Contract, Fraud, Abuse of Process, Culpable Breach ofDuty 42USC 1983 (Complaint at Ifi 216-235.)

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a Count 19-Fraud, Breach of Contract, Breach of Covenant of Good Faith andFair Dealing, Deprivation of Rights Under Color of Law 42 USC 1983(Complaint at flfl 253-257.)C ount 2 O-Unj ust Enri chment (Comp lairx at \n 25 8 -2 5 9 .)Count 2l-False Designation of Origin, False Description Lanham Act 15 USClt25 (Complaint at tffl 260-267.)RICO Enterprise l-California Domestic Dispute Criminal Enterprise(Complaint at flfl 273-274.)RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal(Complaint at flfl 275-280.)RICO Enterprise 4-Forensic Investigator Criminal Enterprise (Complaint at flfl284-286.)RICO Enterprise 5- DDIA/DDIPS Ad Hoc Criminal Enterprise (Complaint at'tTT287-289.)Racketeering Claim 1-18 USC 1962(c)(d) Frauds and Swindles 18 USC $ 1341(Complaint at flfl 337-344.)Racketeering Claim 2-18 USC 1962(c)(d) Honest Service Fraud 18 USC 13461B USC $ 1346 (Complaint at flfl 345-347.)Declaratory Judgment2S USC S 2201(Complaint at fl.|| 392-396.)

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o III. THERE IS NO .IIIRISDICTION FOR THE COMPLAINTA. Standard for 12(bl(1) Motion to Dismiss for Lack of Subiect MatterJurisdiction

Article III of the U.S. Constitution limits the subject matter jurisdiction of federalcourts to matters that are ripe and where the Plaintiffs have standing. Allen v. Wrieht,468 U.S. 737,750 (1984). 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., 51 1 U.S. 375, 377 (1994). The doctrine of ripeness

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allows 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 in fact," i.e., an"invasion of a legally protected interest which is (a) concrete andparticularized, and (b) actual or imminent, not conjectural or hypothetical,"id. at 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.

Chandler v. State F Mut. Auto. Ins. Co.. 598 F.3d 1115 ,ll2l-22 (9th Cir. 2010)(quoting Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61 (1992)). Standing andripeness are properly raised in a motion to dismiss under Rule l2(b)(l). St. Clair v.Chico, 880 F.2d 199,201(9th Cir. 1989)B. Cornorate En Plaintiffs Lack Standins to This Lawsuit

I a dren isCounsel

Whether a corporation can file suit in federal court is determined "by the law inwhich it was organized." Fed. R. Civ. P.I7(b)(2). The California Coalition forFamilies and Children, Inc. ("CCFC") is a Delaware corporation, incorporated the daybefore the current action was filed. (Complaint at l 1; RIN at Ex. 2, November 25,2013, Delaware Department of State "Entity Details" print-out for Plaintiff CaliforniaCoalition for Families and Children.) Accordingly, CCFC's ability to fle a lawsuit isgoverned by Delaware law, 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, af *2 (Del. Ch. July 23,2010). Additionally, this Court only allows acorporation to appear through an attorney permitted to practice in the Southern Districtof California. S.D. Cal. Civ. R. 83.3(k).

The Complaint in this action identifies Colbern Stuart and Dean Browning Webbas attorneys of record for Plaintif CCFC and Lexevia, PC. (Complaint at page 1, lines{,00649477 .DOCXI 5

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1-8.) The Complaint alleges Stuart is an attorney licensed and admitted to practice inCalifornia , Arizona, andNevada, as well as many federal district courts. (Complaint atTT 3, 102-106,Ex.2.)

However, Stuart is unable to appear as counsel for CCFC because was disbarredin California in December 2012 due to his criminal conviction for threatening andharassing his ex-wife. (RJN at Ex. 3, December 2,2013, State Bar of Californiaattorney status printout for Colbem Stuart, with State Bar Court decision and orderattached.) Further, Stuart's Nevada and Arizona legal licenses are currently suspended.(RIN at Ex. 4, December 2,2013, State Bar of Nevada attorney status print out forColbern Stuart, with State Bar Court decision and order attached; and, RJN atBx. 5,December 2,2}I3,State Bar of Arizona attorney status print out for Colbern Stuart.)Because Stuart is not licensed to practice in the Southern I)istrict, or anywhere else, hecannot 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 "pro hac vicepending." (Compl aint atpage 1, line 4.) However, this application is not reflected inthe Court's docket for this case. Additionally, Mr. Webb failed to sign the Complaint.(Complairrt atpage 171, lines 11-14.) Thus, Mr. Webb cannot act as CCFC's counseleither.

Because CCFC is attempting to proceed without counsel in violation of Delawarelaw, the Court should dismiss all of CCFC's claims with prejudice.2. Lexevia is a Suspended Corporation

Lexevia 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. 6, November 25,2013, California Secretary ofState Business Entity detail status printout for Lexevia, PC.) A suspended corporationlacks capacity to file suit in f eS Inc. vDorado, 200 Cal. App. 4th 1470, 1482 (2011); Cal. Corp. Code $$ 2205(c), 5008.6(c)

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(Deering). Additionally, a plaintiff corporation must have standing to sue in federalcourt under Paradise Creations. Inc. v. U V Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir.2003), Standing is determined at the inception of the suit; thus, a suspended corporationlacks capacity to sue even if it revives its status following commencement 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 California corporation may only appear in an action through counsel. Gutierrez v.G & M Oil Co., I84Ca1. App. 4th 551, 564(2010); see also S.D. Cal. Civ. R. 83.3(k).Because Lexevia is not represented by counsel, the Court should dismiss all Lexevia'sclaims with prejudice.C. Jurisdiction co Never be Sustained because Comnlaint Violates

Rule 8Federal Rule of Civil Procedure 8 requires that a complaint contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ.P. 8(a)(2). In analyzing this issue, the Ninth Circuit has stated:

[W]e have never held - and we know of no authority supporting theproposition -- that a pleadingmay be of unlimited length and opacity. Ourcases instruct otherwise. See e.g., McHenry v. Renne, 84 F.3d lI72,II77'80 (9th Cir. 1996) (upholding a Rule 8(a) dismissal of a complaint that wasargumentative, prolix, replete with redundancy, and largely irrelevant );Hatch v. Reliance Ins. Co. ,758F.2d 409,415 (9th Cir. 1985) (upholding aRule 8(a) dismissal of a complaint that exceeded 70 pages in length, [andwas confusing and conclusory ]) (upholding a Rule 8(a) dismissal of acomplaint that exceeded 70 pages in length, [and was confusing andconclusory ); Nevijel v. N. Coast Life Ins. Co. ,651F.2d 67I,674 (9th Cir.1981) (holding that Rule 8(a) is violated when a complaint is excessivelyverbose, confusing and almost entirely conclusory ); Schmidt vHerrmann,6l4F.2d 1221, 1224 (9th Cir. 1980) (upholding a Rule 8(a)dismissal of confusing, distracting, ambiguous, and unintelligiblepleadings ).... Rule 8(a) has been held to be violated by a pleading thatwas needlessly long, or a complaint that was highly repetitious, orconfused, or consisted of incomprehensible rambling. fCitation.] Ourdistrict courts are busy enough without having to penetrate a tome

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approaching the magnitude of War and Peace to discern a plaintiff s claimsand allegations.Cafasso v. Gen. amics C4 Svs.^ 637 F.3d 1047 , 1058 (9th Cir. 20Il) (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 conspiracy between 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 279.)

Thus, the Complaint consists of incomprehensible rambling and requires thedefendants and the Court to penetrate atome approaching the magnitude of War andPeace to discem [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-LqqkheedrMartin Corp.,328F.3d374,378 (7thCir.2003). The Court should dismiss theComplaint with prejudice for failure to comply with Rule 8.IV. PLAINTIFFS ' LEGAL MALPRACTICE CLAIMS AGAIN ST ABC&K

A. Standard for 12ARE NOT SUSTAINABLE

116l Motion to Dismiss for Fail to State a ClaimFederal Rules of Civil Procedure rule 12(b)(6) allows a defendant to challengesufficiency of the pleadings where the pleadings either lack a cognizable legal theory

or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.Pacifica lice l)eo'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

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See Ashcroft v. Iqbal,556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544(2007).'fo survive a motion to dismiss under this new standard, "a complaint mustcontain sufficient factual matter, accepted as true, to 'state a claim for relief that isplausible on its face."' Ashcroft, 556 U.S. at 678 (citingsso u.s. s44, s70 (2007)).

. v. Twomb

"A clairn 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 cornplaint states a plausible claim for relief will ... bea context-specific task that requires the reviewing court to draw on its judicialexperience and common sense." Id. at 679 (citing Iqbal v. Hasty , 490 F.3 d 143 , 157 -58(2d Cir.2007)).

The Court must therefore "identifi, the allegations in the complaint that are notentitled to the assumption of truth" and evaluate "the factual 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, "ft]hreadbare recitals of the elements of a cause of action, supported bymere conclusory statements, do not suffice." Id. Factual allegations "must be enough toraise a right to relief above the speculative level." Bell Atl. Corp., 550 U.S. at 555."[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 Court may take judicial notice ofmatters of public record thaf are not subject to reasonable dispute. Lee v. City of L.4.,250 F.3d 668,689 (9th Cir. 2001). The Ninth Circuit has "extended the 'incorporationby reference' doctrine to situations in which the plaintiff s claim depends on thecontents of a document, the defendan| attaches the document to its motion to dismiss,and the parties do not dispute the authenticity of the document, even though the plaintif100649477.DOCX\ 9MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


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does 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 pleadings and state court orders filed in Plaintiff Stuart's statecourt complaint for legal malpractice against Blanchet and ABC&K, and thegovernment issued documents associated with Stuart's status as a disbarred orsuspended attorney.B. Counts 17.19, and 20 are State Claims for al Malnractice

Ixcept in matters governed by the Federal Constitution or by acts of Congress,the law to be applied in any case is the law of the state. Erie R.R. v. Tompkins,304U.S. 64, 73 (1938). Legal malpractice is a state law cause of action, not a federal causeof action. See, e.g., Aragon v. Federated Dep't Stores Inc.,750F,2d 1447,1457-58(9th Cir. 1985), cert. denied , 479 U .5. 902 ( 1986).

Under California law, the elements of a cause of action in tort for professionalnegligence are: (1) the duty of the professional to use such skill, prudence, and diligenceas other members of his profession commonly possess and exercise; (2) breach of thatduty; (3) a proximate causal connection between the negligent conduct and the resultinginjury; and (4) actual loss or damage resulting from the professional's negligence.Jackson v. Johnson,5 Cal. App. 4th 1350, 1355 (1992).

Plaintif' claims for breach of contract and duty against ABC&K (Complaint at,lllT 21 6-235), while referencing Stuart's 2010lawsuit for legal malpractice againstBlanchet and ABC&K, and alleging unjust enrichment for attomey services, aregoverned by state law. (Complaint at'lTT 232'235,253-259.)

C. State Co Claims for Lesal lnractice are not nted bv

{00649471 DOCX\

Federal LawCongress may expressly preempt state law; however:as the Supreme Court has made cIear, courts never assumef] lightly thatCongress has derogated state regulation. N.Y. State Conf. of Blue Cross &Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671,1676 (1995).Instead, courts address claims of preemption with the starting presumptionthat Congress does not intend to supplant state law. Id.; see Mar)rland v.

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Louisiana,45l[J.5.725,746,68 L. Ed. 2d 576,101 S. Ct".2114 (1981).This is especially true in cases involving fields of traditional stateregulation, including common law tort liability. See N.Y. State Conf. ofBlue Cross & B ue Shield Plans. 1 15 S. Ct. at 1676. See also Cipollone v.Liggett Group. Inc., 505 U.S. 504, 518, 120 L. Ed. 2d 407,1 12 S. Ct.2608(1992\;Metro. Life Ins. Co.v. ,47IU.S.724,740,85 L. Ed2d728,105 S. Ct.2380 (1985); Custer v. Sweeney, 89 F.3d 1156,1167(4th Cir. 1996).Coyne & Delan) Co. v. Selman, 98 F.3d 1457,1467 (4th Cir. 1996)

ln Grable & Sons Metal Prods.. Inc. v. Darue n's &" Mfs^- 54s U.S. 308 (200s)the United States Supreme Court developed the test for determining whether a claimarises "under the Constitution, laws, or treaties of the United States" for purposes offederal-question jurisdiction as provided in 28 U.S.C. $ 1331 (2006). In order forfederal courts to have subject-matter jurisdiction pursuant to 28 U.S.C. $ 133 1, a state-law claim with an embedded federal question must (1) raise a stated federal issue that is(2) actually disputed and (3) substantial, which a federal forum may entertain withoutdisturbing any congressionally approved balance of federal and state judicialresponsibilities. Id. $ 3 14. In analyzingthe final prong of the Grabietest in the contextof legal malpractice claims, the Supreme Court has held:

That requirement is concerned with the appropriate "balance of federal andstate judicial responsibilities." Id. 'We have already explained the absenceof a substantial federal issue within the meaning of Grable. The States, onthe other hand, have "a special responsibility for maintaining standardsamong members of the licensed professions." Ohralik v. Ohio State BarAss',n, 436 U.S. 447, 460,98 S. Ct. 1912, 56L.Ed. 2d 444 (1978). Their"interest . . . in regulating lawyers is especially great since lawyers areessential to the primary governmental function of administering justice, andhave historically been officers of the courts." Goldfarb v. Va. State Bar,421 U.S. 773,792,95 S. Ct.2004,44L.Ed.2d572 (1975) (internalquotation marks omitted).

Gunn v. Minton,I33 S. Ct. 1059, 1068 (2013).Plaintiffs' claims against ABC&K are based on alleged negligence in their

representation of Stuart in his divorce proceeding. As the basis for these claims,1006494',t7 .DOCX\ 11MEMORANDUM ISO MOTION TO DISMISS COMPLAINT_ CaSC NO.3:13.CV-01944-CAB-BLM


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Plaintiffs altach Stuart's state court complaint against ABC&K for legal malpractice.(,See Exhibit 14.) Legal malpractice is a "field of traditional state regulation;" hence,Plaintits must shor'any federal claims in their complaint is substantial. They havefailed to do this because their claims against ABC&K are based solely on state legalmalpractice claims. Thus, there is no federal law preemption in this case, and Californialaw must be applied to Plaintiffs' claims against ABC&K.

D. ractice Claims are barred thStatute of Limitations

An action, other than for actual fraud, against an attorney arising out of theperformance of professional services must be commenced "within one year after theplaintiff discovers, or through the use of reasonable diligence should have discovered,the facts constituting the wrongful act or omission, or four years from the date of thewrongful act or omission, whichever occurs first." Lockton v. O'Rourke, I84 Cal. App.4th 1051,1062 (2010); Cal. Civ. Proc. Code $ 3a0.6(a) (Deering). An action for fraudor mistake must be filed within three years of discovering the underlying facts of theclaim. . Hous t .8. 171 CaL App. 4th1356,1391 (2009) (Cal. App. 6th Dist. 2009)

Counts 17,79,20, and2I, are all based on Stuart's retention of Doyne, Inc.during his divorce proceedings. ABC&K represented Stuart during the divorceproceedings. Stuart hired Doyne in September 12,2008. (Complaint at flJ[ 216-2f7.)Plaintiffs filed their Complaint in this action on August20,2073, almost five years laterThus, the legal malpractice claims are barred by the one-year statute of limitations. Tothe extent, arLy of these claims meet the pleading standard for fraud causes of action;they are also barred by the three-year fraud statute of limitations.

Plaintiffs' legal malpractice and fraud claims against ABC&K must be dismissedwith prejudice because they are barred by the applicable statutes of limitation.

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E. Plaintiffso Lesal Malnractice Claims are barred bv Res Judicatabecause Thev were Alreadv Decided in State Court

In California, "[r]es judicata bars the litigation not only of issues that wereactually litigated in the prior proceeding, but also issues that could have been litigatedin that proceeding." Zevnik v. Superior Court, 159 Cal. App. 4th76,82 (2008)(emphasis added). If, "two actions involve the same injury to the plaintiff and the samewrong by the defendant then the same primary right is at stake even if in the second suithe plaintiff pleads different theories of recovery, seeks different forms of relief andloradds new facts supporting recovery." Eichman v. Fotomat Corp. , 147 Cal. App. 3dtt70, 1174 (1983).

Plaintiffs' claims against ABC&K are barred by res judicata because they weredecided in state court. The allegations in Stuart's 2010lawsuit against ABC&K forlegal malpractice arise out of Stuart hiring Doyne in 2008 as his family court mediator.(Exhibit 14 atTT 11-18.) Similarly, Plaintiffs' allegations of breach of duties in thecurrent Complaint arise out of Stuart's same retention of Doyne in 2008. (Complaint atllfl253-259.) These are the exact same allegations. These same allegations wereanalyzed and decided against Stuart in the trial court's ruling on ABC&K's Anti-SLAPP Motion to Strike. The trial court unambiguously ruled Stuart's claims againstABC&K could not go forward because they were based on protected activity. On thisbasis, the trial court deemed Stuart's lawsuit stricken in its entirety, without leave toamend. (RJN at Ex. 1.)

Plaintif in this case cannot re-litigate the exact same issues already decidedagainst Stuart in his 2010 complaint against ABC&K. Accordingly:The fact that res judicata depends on an "identity of claims" does not meanthat an imaginative attorney may avoid preclusion by attaching a differentlegal label to an issue that has, or could have, been litigated. Rather,"fi]dentity of claims exists when two suits arise from'the sametransactional nucleus of facts.' " Id. (quoting v. KaiserHealth Plan" Inc.,244 F.3d 708,714 (9th Cir. 2001))

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Tahoe-S ierra Pres. Council - Tnc. v. T Res'l Plannins Asencv^ 322F.3d 1064,1077-78 (gthCir. 2003).

Each of the federal claims asserted in Plaintiffs' current Complaint should havebeen brought as part of the 2010 state court lawsuit because they arise out of the samefacts: ABC&K's representation of Stuart in his divorce proceedings. Therefore,Plaintif' Complaint should be dismissed with prejudice.F. Plaintiffs barred from Claim State Court Judgmen t Violates

Their Fed RishtsFurther, Plaintiffs are attempting to re-litigate Stuart's unsuccessful state-court

action in federal court. \Mhen asserting a state-court claim in federal court, a losingparty may not "seekf ] what in substance would be appellate review of the statejudgment in a United States district court, based on the losing party's claim that the statejudgment itself violates the loser's federal rights." Johnson v. De Grand), 512 U.S.997,1005-06 (1994).

Nonetheless, this is exactly what Plaintif are trying to accomplish. TheComplaint goes to great lengths to create a civil and criminal conspiracy between thestate court judicial system and the attorneys who worked on any matter decided againstStuart. The facts alleged against ABC&K are based on their divorce courtrepresentation. Plaintiffs even go as far as attaching Stuart's 2010legal malpracticelawsuit as evidence of the conduct alleged against ABC&K in the current lawsuit. TheComplaint should be dismissed with prejudice because Plaintif cannot have their statecourt claims reheard in federal court

G. The Do e Presents a te Bar1 ofThe Noerr-Pennington doctrine provides that "those who petition any department

of the government for redress are generally immune from statutory liability for theirpetitioning conduct." Sosa v. DIRECTV. Inc. ,437 F.3d 923,929 (9th Cir. 2006). [email protected]

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Freieht. Inc.,365U.S. 127 (1961); Mine Workers v. Pennington,33l U.S.657 (1965).Recognizing the "'right to petition extends to all departments of the governmenl"' andincludes access to courts, the Supreme Court extended the doctrine to provide immunityfor the use of "'the channels and procedures' of state and federal courts to advocatecauses." Sosa, 437 F.3d at929-30 (quoting Cal. Motor T . Co. v. Truckinsunlimited,404 u.s. 508, 510-11 (1972)).

"Ijnder the Noerr-Pennngton rule of statutory construction, we must construefederal statutes so as to avoid burdening conduct that implicates the protections affordedby the Petition Clause unless the statute clearly provides otherwise." Id. at937. "[T]helaw of this circuit establishes that communications between private parties aresufficiently within the protection of the Petition Clause to trigger the Noerr-Penningtondoctrine, so long as they are sufficiently related to petitioning activity." Id. Federalcourts have determined that the lt{oerr-Pennington doclrine is analogous to California'santi-SLAPP statute and applies to protect defendants whose alleged conduct invokes theright to petition the government for a redress of grievances. Kearney v. Foley &Lardner,553 F. Supp. 2d ll78,ll81 (S.D. Cal. 2008).

In BE&K Constr Co. v. NLRB.536 tl.S. 516 ,525 (2002), the Supreme Courtadopted a three-part test to determine whether the defendant's conduct is immunized:(1) identiff whether the lawsuit imposes a burden on petitioning rights, (2) decidewhether the alleged activities constitute protected petitioning activity, and (3) analyzewhether the statutes at issue may be construed to preclude that burden on the protectedpetitioning activity. BE&K Constr. Co.,536 U.S. at 530-33,535-37.t9

On their face, Plaintiffs' allegations against ABC&K fall within the Noerr'Pennington protection because all three prongs of the test are met. First, it cannot bequestioned that ABC&K's petitioning rights would be burdened if they were held liablefor complying with the terms of decrees of the San Diego Superior Court DomesticDivision in their representation of Stuart in his divorce proceedings.

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This is the exact type of activity protected by Noerr-Pennington. ABC&K'spetitioning activities would unquestionably be burdened if they could be held liableunder RICO or for federal civil rights violations for advice given to their own clientduring the litigation of the matter for which they were retained. Being held liable forthe acts of Doyne, afamily law mediator, would clearly hinder their ability to act withinthe procedures of the family court system

Second, Plaintiffs' have not alleged any facts against ABC&K which fall outsideof protected petitioning activity. The allegations in the Complaint and judicially noticeddocuments establish ABC&K's conduct was directly linked to the representation ofStuart in his divorce proceedings. The Ninth Circuit has held, "the law of this circuitestablishes that communications between private parties are sufficiently within theprotection of the Petition Clause to trigger the Noerr-Pennngton doctrine, so long asthey are suffciently related to petitioning activity." Sosa,437 F.3d at 935.Furthermore, "in the litigation context, not only petitions sent directly to the court in thecourse of litigation, but also 'conduct incidental to the prosecution of the suit' isprotected." Id. at934.

Finally, Ninth Circuit authority has made clear that, under these circumstances,the RICO statute cannot be construed to preclude the burden on this petitioning activity.Id. at 933. Plaintif' vague allegations that ABC&K was somehow indirectly involvedin certain misrepresentations changes nothing. In Sosa, the court described a similarsituation of a RICO suit predicated on "fraudulent discovery conduct in prior litigationthat induced the plaintiffs to settle the suit for a lower amount than they would have inthe absence of the fraud." Id. at 940. Taken as true, Plaintiffs' allegations thatABC&K's representations induced Stuart to hire Doyne are protected:

[W]e hold that RICO and the predicate statutes at issue here do not permitthe maintenance of a lawsuit for the sending of a prelitigation demand tosettle legal claims that do not amount to a sham. Because the demandletters at issue here sought settlement of claims against Sosa under theFederal Communications Act, and no sham is claimed, they cannot formthe basis of liability under RICO.t6CX}006L94 '77MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


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Id. at942.For all of these reasons Plaintiffs' claims, which seek to impute protected

petitioning activity, arebarredby Noeru-Pennington doctrine, and Plaintif' Complaintshould be dismissed with prejudice.

2 to tate RICO 's ActionsNoerr-Penn

RICO is primarily a criminal statute Johnsen v. Rogers, 55 1 F. Supp. 28I,284(C.D. CaL 1982) whose purpose is to seek the eradication of organized crime. 18U.S.C. g 1961 (2006). In order for Plaintiffs to allege a RICO conspiracy, a violation oRICO must be alleged. 1S U.S.C. $ 1962(d) makes unlawful conspiracy to violate anyof the provisions of $ 1962. [I]f the section 1962(c) claim does not state an action uponwhich relief could ever be granted, regardless of the evidence, then the section I962(d)claim cannot be entertained. Neibel v. Trans World Assur. Co., 108 F.3d 1123,ll27(9th Cir. 1997). 18 U.S.C. $ 1962(c) makes it unlawful for any person employed by orassociated with any enterprise engaged in, or the activities of which affect, interstate orforeign commerce, to conduct or participate, directly or indirectly, in the conduct ofsuch enterprise's affairs through apatternof racketeering activity or collection of anunlawful debt.

Plaintiffs allege ABC&K is liable for a RICO violations for Frauds andSwindles under 18 U.S.C. $ 1341 which makes mail fraud illegal, and HonestServices Fraud under 18 U.S.C. $ 1346 which bars deprivation of intangible propertyrights. (Complaint at fltl 337-347.) The Complaint alleges ABC&K fraudulentlycommunicated invoices for services provide worth approximately $250,000.(Complaint at fl 340)ABC&K have not violated any sections of RICO as they are immune fromliability based on the Noerr-Pennington doctrine. The allegations against the otherattorney and non-judicial defendants are invalid for the same reasons-their actions,

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litigating on behalf of and against Plaintiffs, are also protected by the Noerr-Pennngtondoctrine.

The remaining defendants are judicial officers of court ranging from the SanDiego Superior Court to the California Supreme Court, as well as officers of the SanDiego County Sheriff s Department. All these defendants are also immune fromliability under the Eleventh Amendment. See Simmons v. Sacramento Cnty. SuperiorCourt, 3 1 8 F.3d 1156, I 161 (9th Cir. 2003).

Each type of "RICO Enterprise" alleged against ABC&K is immune from aRICO claim. Each of these Enterprises is a description of the everyday activities of theSan Diego Family Court system. These are exactly the type of activities protected bythe Noerr-Pennington doctrine. There cannot be a RICO cause of action because alldefendants are immune from liability for the acts alleged in the Complaint. Therefore,Plaintif' Complaint should be dismissed with prejudice.V. PLAINTIFFS' RIGHTS CLAIMS ARE UNSUSTAINABLEA. Counts 3, . 13. 14. and 15 are barred bv the Two-Y Statute of

Limitations 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 claim inCalifornia must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code$ 335.1.Plaintiff s 1983 and 1985 civil rights claims against ABC&K are based on the so-called "stuart Assault." Count 12 alleging obstructing justice, etc. is based on theallegation that the Stuart Assault hindered the administration ofjustice for Plaintif.(Complaint at fl 203.) Counts 12 through 15 allege Defendants violated Plaintiffs' civilrights by committing the Stuart Assault. (Complaint at flJf 205-210.) Thus, each ofthese claims is based on the facts concerning the Stuart Assault. However, theComplaint alleges the Stuart Assault occurred on April 15,2010. (Complaint at tT 114.){00649477.DOCXi l8MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


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Plaintif filed their Complaint on Augus|20,2013, three years and four months afterthe Stuart Assault.

Counts 12 through 15 needed to be filed in 2012 and Count 17 needed to be filedin 2010. This did not occur; hence, these claims must be dismissed with prejudiceagainst ABC&K.

1. Counts 3^ 12.I3.14. and 15 Fail to Alleee v Facts asainstABC&K

As discussed above, Counts 12 through 15 allege Defendants violated Plaintiffs'civil rights by committing the Stuart Assault. (Complaint at flfl 205-210.) However, theComplaint fails to identifli ABC&K's connection to the Stuart Assault. The Complaintdoes not allege ABC&K was present at the seminar on April 15,2010. The Complaintdoes not state facts alleging ABC&K was part of the "conspiracy" to have Stuart ejectedfrom the seminar. In fact, the Complaint does not mention ABC&K at a\l in referenceto 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.

2. Plaintiff s Civil Rishts Claims are barred because ABC&K are notState ActorsTo state a claim under Section 1983, a plaintiff must allege: (1) u 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(9th Cir. 1987).In this case, the Plaintif' allegations against ABC&K consist of general, legalmalpractice claims based on their representation of Stuart in his divorce proceeding.However,"aprivate attorney, while participating in the trial of a private state courtaction, is not acting under color of state law." Raitport v. Provident Nat'l Bank, 45I F.

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Supp. 522,531 (8.D. Pa. 1978) (emphasis added) (quoting Hansen v. Ahlgrimm,520F.2d768,770 (7th Cir. 1975) (citations omitted)).

The Complaint does not allege any facts suggesting ABC&K acted in a mannerthat went beyond the traditional functions of a lawyer. See Polk Cnty, v. Dodson, 454U.S. 3 12,325 (1981). Accordingly, Plaintiff s allegations of general, legal malpracticefail to state a cognizable claim under Section1983 and must be dismissed. See Franklinv. Or.. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (holding that plaintiff slegal malpractice claims do not come within the jurisdiction of federal courts).Accordingly, Plaintiffs claims against for civil rights violations against ABC&K areinvalid, and should be dismissed with prejudice.VI. LANHAM ACT CLAIMS AGAINST BLANCHET ARE NOT VIABLE

To allege aLanhamAct violation, Plaintif must allege Blanchet (1) made falseor misleading statements as to his own product for another's] ; (2) othere is actualdeception or at least a tendency to deceive a subsl'airfal portion of the intendedaudience ; (3) the deception is material in that it is likely to influence purchasingdecisions ; (4) the advertised goods traveled in interstate commerce; and (5) there isa likelihood of inju.y to the plaintiff in terms of declining sales, loss of good will, etc.'Warner- bert Co. v. stlre Inc 204F.3d87,91-92 (3d Cir. 2000); SouthlandSod Farms v. Stover Seed Co.. 108 F.3d 1134,ll39 (9th Cir. 1997). Under thisstandard, a plaintiff 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.),42F.3d 15411548 (9th Cir. 1994). To allege aLanhamAct claim due to misleading statements,plaintiffs are required to allege facts suggestingthatthe marketplace was actuallyconfused or misled, not just that the marketplace could have been confused or misled.Accenture Glo Servs. GmbH v. Guidewire Software. Inc.. 581 F. SWp.2d 654, 666-67 (D. Del. 2008).

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A. The Complaint Fails to Alleee Blanchet and ABC&K are Competitorswith Plaintiffs

A claim for false advertising under the Lanham Act will not be sustained[w]ithout a showing of direct competition. Jurin v. Google. Inc.,695 F. Supp. 2d1177,ll22 (8.D. Cal.2010). In Jurin, the court granted defendant's 12(b)(6) motion todismiss 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 theLanhamAct the parties have to be direct competitors. Id. A claim for false advertisingunder the Lanham act requires: 'othat the injury is 'competitive,' or harmful to theplaintiff s ability to compete with the defendant. Jack Russell Terrier Network v. Am.Kennel Club, Inc.,407 F.3d 1027 ,1037 (9th Cir. 2005). In the Ninth Circuit a plaintiffmust be in actltal or direct competition with the defendant and assert a competitiveinjury to establish standing. FLIR Sys. v. Siena Media. Inc. ,903 F. Supp. 2d 1120,tI42 (D. Or.2012) (Dist. Or.20t2).

Count 2l of the Complaint alleges violation of the LanhamAct against allDefendants. However, the Complaint fails to allege ABC&K are direct competitorswith Plaintif. Plaintiff Stuart is a disbarred attorney, and cannot be in competitionwith attorney Blanchet and her frrm ABC&K because he is no longer an attorney.Plaintiff Lexevia is a suspended corporation, and cannot by definition be in competitionwith the ABC&K law firm. Plaintiff CCFC did not even exist until the day before theComplaint was filed, thus it could not have been in competition with ABC&K at thetime of the events alleged in the Complaint.

Plaintiffs'Lanham act claims must fail because not one of the Plaintiffs is incompetition with ABC&K, and should be dismissed with prejudice.

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Plaintiffs have done none of these things. "Rule 9(b) does not allow a complaintto merely lump multiple defendants together but lrequirefs] plaintif to differentiatetheir allegations when suing more than one defendant ... and inform each defendantseparately of the allegations surrounding his alleged participation in the fraud."'Swa1rtzKPM L.L.P. 47 6 F .3d 7 56, 7 64-65 (9th Cir. 2007). Courts have repeatedly insistedthat, in addition to particularity of time, place, and manner of each act of fraud, the roleof each defendant in each scheme be described in RICO actions alleging the predicateacts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist. ,940 F .2d 397405 (9th Cir. 1991).

In Pelletier v. Zweifel, 92I F .2d 1465, 15 18-19 (1 lth Cir. lggl),the EleventhCircuit affirmed the district court's dismissal of a RICO claim because it constituted"shotgun" pleadings that made it extremely diffrcult for the court and opposing partiesto identiff the facts that would give rise to a cognizable claim. Pelletier, 92I 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 asserteda difficult and laborious task indeed."); see also Savage v. Council on Am.-IslamicRelations" Inc., 2008 WL 2951281, ati"14 (N.D. Cal. July 25,2008) (RICO claiminsuficient where plaintiff set forth a "redundant"narrative 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 Sn Francisco v HK Systems,1997WL 227955, aL *3 (N.D. Cal. 1997) (complaint insufficient for failure to "identiffexactly which acts are 'predicate acts' for RICO liability").

Similarly here, Plaintiffs' RICO allegations, just like the majority of allegations inthe CompIairft, "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 for

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themselves which were material to the particular cause[s] of action asserted" againstthem. Under these circumstances, it is nearly impossible for ABC&K to determinewhich, if any, predicate acts are alleged against them. This format of Complaintviolates Rule 9(b).Plaintif' complete failure to plead this element requires dismissal withprejudice. VIII. CONCLUSIOI{

For the above reasons, Defendants Sharon Blanchet and ABC&K request theCourt dismiss Plaintiffs' Complaint with prejudice.

Dated: December 3,2073Respectfully submitted,\MINGERT GREBING BRUBAKER & JUSKIELLPBy: s/ Charles R. tnsCHARLES R. GREBINGANDREW A. SERVAISDWAYNE H. STEINAttornevs for DefendantsSHARN BLANCHET ANdASHWORTH, BLANCFIET,CHRISTENSEN & KALEMENKARIAN


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