54-1 Viviano Mtd

8/13/2019 54-1 Viviano Mtd

1/23

1

2aJ456789

1011t213t415l61,718t9202t22232425262728

CHARLES R. GREBING, State Bar No. 47927cgr e b in g@w i n g er t Iaw. c o mANDREW A. SERVAIS, State Bar No. 239891a s erv ai s @wingertl aw. c omDWAYNE H. STEIN, State Bar No. 261841d s t ein@winger tl aw. c o mWINGERT GREBING BRUBAKER & JUSKIE LLPOne AmeicaPlaza, Suite 1200600 West BroadwaySan Diego, CA 92101(619) 232-815 1 ; Fax (619) 232-466sAttorneys for DefendantsLORI CLARK VIVIANO and LAV/ OFFICES OF LORI CLARK VIVIANO

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF' CALIF'ORNIA

CALIFORNIA COALITION FORFAMILIES AND CHILDREN a DelawareCorporation. LEXEVIA. PC. a' CalifomiaProfessionaf Corporatio, and COLBERNC. STUART, an individual,Plaintiffs,

Case No. : 3 : 1 3- ;v-01944-CAB-BLMMEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEF'ENDANTS LORI CLARKVIVIAI{O & LA\ry OFF'ICES OFLORI CLARI( VIVIANO'S MOTIONTO DISMISSCOMPLAINT ed. R. Civ. P.and Fed. R. Civ. P.S.SAN DIEGO COTINTY BAR

a California Corporation; LISA SCHALL,

lffittr' 12(bx

Date: Il24l14Time:Ctrm: 2:00 .m. 4CJudge: Cathy Ann Bencivengo, Presiding

fo0649573.DOCX)MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT - CASC NO.3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 1 of 23

8/13/2019 54-1 Viviano Mtd

2/23

I2J4567891011T2l3l415t6t718t9202l22232425262728

Defendants.

{00649573.DOCX}MEMORAND{jM ISO MOTION TO DISMISS COMPLAINT - Case No. 3 :13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

3/23

I23456789

1011t2t31,415T6T718t9202l22232425262728

TABLE OF CONTENTSI. INTRODUCTION

ALLEGATIONS AGAINST VIVIANO IN COMPLAINTTHERE IS NO JURISDICTION FOR THE COMPLAINT

Page

il.ilI1

24A.B.

Standard for 12(bX1) Motion to Dismiss for Lack of Subject Matter 4urisdictionCorporate Entity Plaintif Lack Standing to File This Lawsuit......... .........41. California Coalition for Families and Children is notRepresented by Counsel 42. Lexevia is a Suspended Corporation...........Jurisdiction could Never be Sustained because the Complaint ViolatesRule 8.............IV. PLAINTIFFS' CLAIMS AGAINST VIVIANO ARE NOT

V

C.668

9

SUSTAINABLEA. Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim........8PLAINTIFF'S' CIVIL RIGHTS CLAIMS AGAINST VIVIANO ARETINSUSTAINABLE oA. Counts 3. 12.13 14, and 15Limitations for Tort -Claims are barred by the Two-Year Statute ofB. Counts 3,12,13,14, and 15 Fail to Allege any Facts against Viviano ..... 10C Plaintiffls Civil Rights Claims are barred because Viviano is not aState Actor

VI THE NOERR-PENNINGTON DOCTRINE PRESENTS A SEPARATEBAR.A. The Allegations Against Viviano Consist of Protected Activity.....VII. LANHAM ACT CLAIMS AGAINST VIVIANO ARE NOT VIABLEA. The Complaint Fails to Allege Viviano is a Competitor with Plaintiffs....

B. be Analyzed under

1011t113I4t415VIII. PLAINTIFFS' VIOLATE E THEIR RICO CLAIMSFAIL TO ALLEGE PRED PARTICULARITYULE 9(B) BECAUSICATE ACTS WITHrX. CONCLUSION ,.,....T7

{06s57i DCX}MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

4/23

1

2aJ456789

1011I2t3l415l6t718t9202T22232425262728

TABLE OF AUTHORITIESPage

Supreme Court OpinionsAllen v. Wright, 468 U.S. 737 (1984)Ashcroft v. Iqbal,556 U.S. 662 (2009)BE K Constr. Co. v. NLfuB,536 U.S. 516 (2002)Bell Att. Corp. v. Twombly,550 U.S. 544 (2007)CaL Motor Transp. Co. v. Trucking Unlimited,404 U.S. 508 (1972) ...... .... 1 1E. R.R. Presidents Conf v. Noerr Motor Freight, Lnc.,365 U.S. I 27 (1961) 11Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994)

8,9T2,8

4

44ujan v. Defenders of Wildlife,504 U.S. 555 (1992)Mine Workers v. Pennington,3Sl U.S. 657 (1965)

West v. Atkins,487 U.S. 42 (1988)Second Circuit OpinionsIqbat v. Hastyt,490 F.3d 143 (2dCir.2007)Third Circuit OpinionsAccenture Global Servs. GmbH v. Guidewire Soffi,vare, nc.,581 F. Supp. 2d 654 (D.DeI.2008)Raitport v. Provident Nat'l Bank,451 F. Supp. 522 (B.D.Pa. 1978)Warner-Lambert Co. v. BreathAsure, Inc.,204F.3d 87 (3d Cir.2000) ....Seventh Circuit OpinionsHansen v. Ahlgrimm, 520 F .2d 7 68 (7th Cir. 197 5)United States v. Lockheed-Martin Corp.,328 F.3d 374 (7thCir. 2003)Ninth Circuit OpinionsBalistreri v. Pacifica Police Dep't,901F.2d 696 (9th Cir. 1988)Cafasso v. Gen. Dynamics C4 9ys.,637 F.3d 1047 (9th Cir. 20lL)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 l54l

.10ll

8

7

t311t3

11

874

(9th Cir. t994) 13,15{00649573.DOCX}MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

5/23

1

2J456789

1011t213t415t61718t9202I22232425262128

I(earney v. Foley & Lardner,553 F. Supp. 2d LI78 (S.D. Cal. 2008) ,,........ 12I(etchum v. CnQ. of Alameda, 811 F.2d 1243 (9th Cir. 1987)

Edwards v. Marin Park, nc.,356 F.3d 1058 (9th Cir. 2004) ............... 15Fed. Reserve Bank of S.F. v. HK Sys.,1997 WL 227955, at *3 (N.D. Cal. 1997) ........ 16FLIR Sys. v. Sierra Media, Lnc.,903 F. Supp. 2d Il20 (D. Or. 2012) 14Jack Russell Terrier Network v. Am. Kennel Club, nc.,407 F.3d 1027

(9th Cir. 200s) I4Jurin v. Google, nc.,695 F. Supp. 2d Il17 (E.D. Cal. 2010) t410

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

25,2008) T6Sosa v. DIfuECTV, Inc., 437 F.3d 923 (gthCir. 2006)Southland Sod Farms v. Stover Seed Co.,l08 F.3d 1I34 (9thCir. 1997)

Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (gthCir. 1991) .16Lee v. City of L.A.,250 F.3d 668 (9th Cir. 2001) ............. 9Savage v. Council on Am.-Islamic Relations, nc.,2008 WL 2951281 (N.D. Cal. July

rr,12,1313

St. Clair v. Chico,880 F.2d 199 (gth Cir. 1989)Swartz v. KPMG L. L. P., 47 6 F .3 d 7 56 (gth Cir. 2007)Usher v. Los Angeles,828 F .2d 556 (9th Cir. 1987)Yourish v. CaL Amplifier,79l F.3d 983 (9th Cir. 1999)Eleventh Circuit OpinionsPelletier v. Zweifel,92I F.2d 1465 (1 lth Cir. 1991)Federal Circuit OpinionsParadise Creations, Inc. v. U V Sales, 1nc.,315 F.3d 1304 (Fed. Cir. 2003)California State OpinionsFriends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,200 CaI. App. 4th1470 (20rt)Gutierrez v. G & M Oil Co.,184 Cal. App. 4th551 (2010)California State StatutesCal. Civ. Proc. Code 335.1 (Deering)Cal. Corp. Code 2205(c), 5008.6(c) (Deering){00649573.DOCX} ll1

15

16

1549

6

66

9

MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM6


8/13/2019 54-1 Viviano Mtd

6/23

1

2

456789

10111,213t415t6l718T9202l22232425262728

Delaware State OpinionsRobbins v. P'ship r Bank Capital, L.P., 2010 Del. Ch. LEXIS 167 (DeI. Ch. July 23,20t0) 5

6

4

RulesFed. R. Civ. P. 8(a)(2)Fed. R. Civ. P. I7(b)(2)S.D. Cal. Civ. R. 83.3(k) 5r6

{00649573.DOCX} 11/MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT - CaSE NO. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

7/23

1

2J456789

1011t213l415t6l718t9202l22232425262728

I. INTRODUCTIONPlaintiffs Colbern Stuart and his two corporate entities ( Plaintiffs) allege at least

12 causes of action against Defendants Lori Clark Viviano and the Law Offices of LoriClark Viviano (collectively Viviano ); however, the Complaint fails to allege anyactual facts to support these claims. In fact, the Complaint fails to allege any conductspecific to Viviano except that in 2007 she billed Plaintiff Stuart for legal services onhis behalf. Notably, the Complaint is silent on the nature of Viviano's connection toPlaintif, what services Viviano performed, or the basis for Viviano's liability relatedto her work for Plaintif.

In order to determine the basis for any other claims, Viviano must decipherPlaintiffs' crypticlT1-page Complaint with 1,300 pages of exhibits attached. But evenclose analysis of the Complaint does not reveal the basis for the claims against Viviano.Unlike many of the other attorney Defendants, the Complaint does not provide citationto or quotes from Viviano's marketing materials, or statements Viviano made toPlaintiffs.

The majority of the Complaint makes allegations against a11 defendants, butfails to make specific allegations against each individual defendant to substantiateclaims with heightened pleading standards like fraud, false advertising, and RICOviolations. Thus, Viviano cannot determine the basis for these claims against her. Thistype of complaint violates the federal court requirement that pleadings be concise. Forthis reason alone, Plaintiffs Complaint should be dismissed with prejudice.

Additionally, Viviano requests the Court dismiss with prejudice the Complaintbecause Plaintiffs' have failed to state valid claims against Viviano for several otherreasons, including: lack of standing, failure to file within applicable statutes oflimitations, and failure to properly plead the allegations in the Complaint.

{00649s73.DOCX} IMEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

8/23

1

2J456789

101112t3T415I6T718T9202l22232425262728

II. ALLEGATIONS AGAINST VIVIA.NO IN COMPLAINTOn April 15,2010, Plaintiff Stuart was involved in an incident while attending a

seminar at the San Diego County Bar Association, labeled in the Complaint as the"stuart Assault." (Complaint at lffl Il4,124-140.) As a result, Sheriffls deputies forcedStuart to leave the semin ar. (Id. at fl 135.) The Complaint does not allege Viviano wasinvolved in the Stuart Assault.

The Complaint alleges "Defendants" owed one or more professional duties toplaintiffs, including the duty of ordinary reasonable cae, the duty to act reasonably, andto avoid acting rnreasonably and culpably. (Complaint at flfl I5I-I52, subd. A.)

The Complaint alleges Defendants utilize false and misleading commercialspeech to advertise and offer their legal services. (Complaint at fl 260.) Defendants'cofimercial speech represents they abide by ordinary and professional standards of care.(Complaint at Jf 26I.) Defendants operate criminal enterprises depriving Plaintiffs oftheir property and liberty,lutllizing misrepresentations in their commercial speech(Complaint at fl 266.)

Forty-eight named Defendants engaged in activities constituting a RICOenterprise through apatternof racketeering activity. (Complaint at ufl 268-27L ) Forexample, Defendants engaged in the San Diego Family Law Community DomesticDispute Industry Enterprise (SD-DDICE) civil and criminal conspiracy. (Complaint at1[1275-276.) The DDICE complete illegally in the markelace through "mutualanticompetitive pacts, fraudulent licensing, certification, specialization, excluding ordeterring fair competition." (Complaint at tf 280.)

Defendants Blanchet, Bierer,Frrn, Viviano, Doyne, Inc., form the "Stuart AdHoc Criminal Enterprise" which commits several frauds in the practice family law, childcustody, and domestic relations. (Complaint at nn288-2gg.)

Between July 2007 and Decernber 2007 Viviano communicated fraudulentinvoices for payment worth approximately $45,000. (Complaint at i 339.)

2MEMORANDI]M ISO MOTION DISMISS COMPLAINT - Case No. 3:13-CV-01944'CAB-BLM


8/13/2019 54-1 Viviano Mtd

9/23

1

2aJ456789

1011t213T415I6t718t9202t22232425262728

Plaintif appear to allege the following causes of action against Viviano, inaddition to numerous other defendants:. Count 3-Culpable Breach of Duty under Govt. Code 820 /Deprivation of

Constitutional Rights 42 USC 1983 (Complaint at llt] 15 l-157 .). Count 12-Obstructing justice; intimidatinEpa,witness, or juror 42 USC198s(2) (Complaint at lffl 193-204.) Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 1985(3)(a)(Complaint at flfl 205-206.). Count l4-Conspiracy deprive of Constitutional Rights 42 USC 1985(3Xb)(Complaint at flfl 207-208.) Count 15-Conspiracy to Deprive of Constitutional Rights 42 USC 1985(3)(c)(Complaint at flfl 209-210.)o Count 2l-False Designation of Origin, False Description Lanham Act 15 USC1125 (Complaint at ffi260-267.)o RICO Enterprise l-California Domestic Dispute Criminal Enterprise(Complaint at tffl 273-274.)

. RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal(Complaint at flfl 275-280.)o RICO Enterprise 5- DDIA/DDIPS Ad Hoc Criminal Enterprise (Complaint at flfl257-28s.) Racketeering Claim 1-18 USC 1962(c)(d) Frauds and Swindles 18 USC 1341(Complaint at flfl 337-344.)o Racketeering Claim 2-18 USC 1962(c)(d) Honest Service Fraud 18 USC 134618 USC 1346 (Complaint at lffl 34s-347.). Declaratory Judgm ent 28 USC 2201 (Complaint at lffl 392-396.)

{00649573.DOCX} aJMEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

10/23

1

2J456789

1011t213l415t6t718I9202l22232425262728

III. R THE COMPLAII{TA. Standard for 12(bX1) Motion to Dismiss for Lack of Subiect MatterJurisdictionArticle 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. Wright,

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., 511 U.S. 375, 377 (lgg4). The doctrine of ripenessallows a court to dispose of matters that arepremature or too speculative. To establishfederal subj ect matter j urisdiction:F'irst, the plaintiff must prove that he suffered an injury infact, i.e., an invasion of alegally protected interest which is (a) concrete and particulanzed, and (b) actual orimminent, not conjecfural or hypothetical, Id. at 560 (citations, internal quotationmarks, and footnote omitted). Second, the plaintiff must establish a causal connectionby provingthather injury is fairly traceable to the challenged conduct of the defendant.Id. at 560-6L Third, the plaintiff must show that her injury will likely be redressed bya favorable decision.Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d 1ll5,II2l-22 (gthCir.2010), quoting Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61(1992). Standing and ripeness are properly raised in a motion to dismiss under RuleIz(b)(l). Sr. Clair v. Chico,880 F.2d 799,201(9th Cir. 1989).B. Cornorate Entitv Plaintiffs Lack Sfandin to File This f,awsuit

1 California Coalition for Families and Chilrlren is not Reoresented bvCounsel

Whether a corporation can fle suit in federal court is determined by the law inwhich it was organized.l' 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 atfl 1; RIN, at Ex. 1, November 25,2013, Delaware Department of State Entity Details print-out for Plaintiff California10049573.DOCX) 4MEMORANDTM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

11/23

1

2J456789

1011l213l415t6l718t9202l22232425262728

Coalition for Families and Children.) Accordingly, CCFC's abilify to file 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, at*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 V/ebb,as attorneys of record for Plaintiffs CCFC and Lexevia, PC. (Complaint atpage 1, lines1-8.) The Complaint alleges Stuart is an attorney licensed and admitted to practice inCalifornia, Arizona, ffidNevada, as well as many federal district courts. (Complaint atlTT 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. (RIN at Ex. 3, Decernber 2,2013, State Bar of Californiaattomey status printout for Colbern Stuart, with State Bar Court decision and orderattached.) Further, Stuart's Nevada and Anzonalegal licenses are cuffently 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 at Ex. 5,December 2,2}l3,State Bar of Arizonaattorney status print out for Colbern Stuart.)Because Stuart is not licensed to practice in the Southern District, or anywhere else, hecannot act as CCFC's counsel in this matter.

CCFC's other purported counsel, Mr. V/ebb, is licensed in the state ofV/ashington. The Complaint states Mr. Webb has an application for pro hac vicepending. (Complaint 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.(Complaint at page 171, lines 11-14.) Thus, Mr. V/ebb cannot act as CCFC's counseleither.

Because CCFC is attempting to proceed without counsel in violation of{00649s73.DOCX} 5MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

12/23

1

2

456789

1011T213T415l61118l9202I22232425262728

Delaware law, the Court should dismiss with prejudice all of CCFC's claims in thisaction.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. 5, Novemb er 25,2013, California Secretary ofState Business Entity detail status printout for Lexevia, PC.) A suspended corporationlacks capacity to sue in California. Friends of Shingle Springs Interchange, Inc. v. CnQ.of El Dorado,200 CaI.App. 4th 1470,1482 (2011);Cal. Corp. Code $$ 2205(c),5008.6(c) (Deering). Additionally, a plaintiff corporation must have standing to sue infederal court under Article III of the Constitution. Paradise Creations, Inc. v. U VSales, nc,,315 F.3d 1304, 1308 (Fed. Cir. 2003). Standing is determined at theinception of the suit; thus, a suspended corporation lacks capacity to sue even if itrevives its status following cofnmencement 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 appe ar in anaction through counsel. Gutierrez v.G &M Oit Co., 184 Cal. App. 4th551,564 (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. Jqrisdiction could Never be Sustained becauqe the Complai4t Violates Rule 8

Federal Rule of Civil Procedure 8 requires hat a complaint contain a short andplain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ.P. S(aX2) . ln analyzing 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 1 172, ll77'80 (9th Cir. 1996) (upholding a Rule 8(a) dismissal of a complaint that wasargumen tative, prolix, replete with redun dancy, and largely irrelev ant );Hatch v. Reliance Ins. Co.,758F.2d409,415 (gthCir. 1985) (upholding a{oo649573.DOCX} 6MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT - CASE NO. 3:13.CV-01 944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

13/23

-

r'1

1

2J456789

10111213l415t6t718t9202l22232425262728

ll nule 8(a) dismissat of a complaint that exceeded 70 pages in length, fandll *us confusing and conclusory ); Nevijel v. North Coast Life Ins. Co.,651ll r 2d 671,674 (9th Cir. 1981) (holding rhat Rule 8(a) is violated when all .omplaint is excessively verbose, confusing and almost entirelyll .onclusory'); Schmidt v. Herrmann,614F.2d 1221,1224 (9th Cir. 1980)ll (upholding a Rule 8(a) dismissal of confusing, distracting, ambiguous, andll u intelligible pleadings ).... Rule 8(a) has been held to be violated by all pteading that was needlessly long, or a complaint that was highlyll r.petitious, or confused, or consisted of incomprehensible rambling.ll tCitation.l Our district courts are busy enough without having to penetratell r tome approaching the magnitude of War and Peace to discern all plaintiffls claims and allegations.lllCofotto v. Gen. Dynamics C4 }ys.,637 F.3d 1047,1058 (9th Cir. 201 1) (request to filellr',t-o^r amended complaint denied).ll tne Complaint in this action is 175 pages in length. The length balloons tollannroximately 1,300 pages when the voluminous exhibits are included. The Comnlaintllis also extremely difficult to follow. It attempts to weave a complicated criminal andll.iuil conspiracy between everyone who ever touched one of Mr. Stuart's court matters.ll ,lsn rtilizes an incomnrehensihle network of acronr ,llfne Complaint also utilizes an incomprehensible network of acronyms with passagerlllike ltlhe SD-DDICE acting in concert with the San Diego DDIJO, SCCDC, SDCBA,IIDDISO, and the SAC engage in... (Complaint at fl 279.)ll t*s, the Complaint consists of incomprehensible rambling and requires thelldefendants and the Court to penetrale a tome approaching the magnitude of War andllrr*rto discern [the] plaintiff s claims and allegat ions;' Id. Additionally, thellComplaint asserts no less than 12 claims against Viviano that are confusing andllrorrrfuro

ry. Id..This Complaint requires the Court and Defendants to try to fsh allgof coin from a bucket of mud[,] (Jnited States v. Lockheed-Martin Corp.,328 F.3dlluo,37' (7thcir.2oo3).ll' -rJi:;iii:u1d

dismiss withprejudice the entire compraint ror ra'ure toil

{00649s73.DOCX} 7MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

14/23

ll

A

1

2J456789

1011l213t415L6

l718t9202I22232425262728

II ,". PLAINTIFFS, CLAIMS AGAINST VIVIANO ARE NOT SUSTAINABLEll"'1ll t***"les of Civil Procedure rule 12(b)(6) allows a defendant to challengel

llsufficiency of the pleadings where the pleadings either "lack a cognzable legal theory"llor "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v.llfornrt Police Dep't, g0l F.2d 696,699 (9th Cir. 19SS). In recent years, the U.S.

ll'4i:1:::ji::'* ::illro"tui" suffrcient factual matter, accepted as true, to 'state a claim for relief that isllnlausible on its face. "' Ashcroft, 556 U.S. at 678 (citin g Bell Atl. Corp. v. Twombly, 550llu s s44, s70 (2007)).ll "O claim has facial plausibility when the plaintiff pleads factual content thatllattows the court to draw the reasonable inference that the defendant is liable for thellmisconduct alleged|' Id. (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 556 (2007)).ll"D.t.r-ining whether a complaint states a plausible claim for relief will ... be a context-lllspecific task that requires the reviewing court to draw on its judicial experience andll.o-*on sense." Id. at 679 (citing Iqbat v. Hasty, 4g0 F.3,143,157-58 (2d, Cir.2007)).ll tfre Court must therefore "identiff the allegations in the complain tthatare notl

llentitled to the assumption of truth" and evaluate "the factual allegations in [the]llcomplaint to determine if they plausibly suggest an entitlement to relief." Ashcroft,556llu t at 680-81 . But only factual allegations must be accepted as true, not legalllconclusi ons. Id. at 678.ll Urrther, "[t]hreadbare recitals of the elements of a cause of action, supported byll**. conclusory statements, do not sufftce." Id. Factual allegations "must be enough tollraise a right to relief above the speculative level." Bell Atl. Corp.,550 U.S. at 555.il

{oo649573.DOCX} 8MEMORANDIJM ISO MOTION TO DISMISS COMPLAINT - Case No.3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

15/23

rFFIfM)

1

2J456789

1011t213t415l6l7181,9202T22232425262728

[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 that 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 defendant attaches the document to its motion to dismiss,and the parties do not dispute the authenticity of the document, even though theplaintiff does not explicitly allege the contents of that document in the complaint. SeeKnievel v. ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) (9th Cir. 2005.) Accordingly,this Court may appropriately review the government issued documents associated withStuart's status as a disbarred or suspended attomey and the status of the corporateplaintiffs.V. PLAINTIF'tr'S' CIVIL RIGHTS AGAINST VIVIANO ARE

UNSUSTAINABLEA. Counts 3.12.13.14. and 15 are ed bv the Two-Year Statute ofLimitations for Tort ClaimsFederal court claims brought under Sections 1983 and 1985 are regulated by the

applicable statute of limitations of the forum state in which the claim is brought. Usherv. Los Angeles,828 F.2d 556, 558 (9th Cir. 1987). Accordingly, a tort claim inCalifornia must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code$ 335.1 (Deering).

Although Count 3 alleges civil rights violations for defendants' breach ofambiguous duties, Plaintiffls 1983 and 1985 claims against Viviano are actually basedon the so-called stuart Assault. Count 12 alleging obstruction ofjustice, etc. is basedon the allegation that the Stuart Assault hindered the administration ofjustice forPlaintiffs. (Compl aint aLn2.) Counts 13 through 15 allege all Defendants violatedPlaintif' civil rights by committing the Stuart Assault. (Complaint at flfl 205-210,216-{oo649573.DOCX} 9MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

16/23

HF

I2J456789

1011T2131415t6t718t9202T22232425262728

ilililllZlS. Thus, each of these claims is based on the facts concerning the Stuart Assault.illlEach of these claims is a tort-based action controlled by California law.illl However, the Complaint alleges the Stuart Assault occurred on April 15,2010.llLaL)ll(Complaint at tT 114.) Plaintiffs filed their Complaint on August 20, 2013, three yearsllun fou, months after the Stuart Assault. Because Counts 3 and l2-I5 are tort basedilllclaims, they must have been filed within Califomia's two-year statute of limitations.illlThis did not occur; hence, each of the 1983 and 1985 claims against Viviano must beilll dismissed with prejudice.illlB. Counts 3, 12, L3. 14. and L5 Fail to Allese any Facts asainst Vivianoll

ll O, discussed above, Counts 3 and 12 tl'trough 15 allege all Defendants violatedlletaintiffs' civil rights by committing the Stuart Assault. (Complaint at lffl 205-210,216-ll e11235.) However, the Complaint fails to identifu Viviano's connection to the StuartllAssault. The Complaint does not allege Viviano was present at the seminar on April 15,il112010. The Complaint does not state facts alleging Viviano was part of the conspiracyllro nuu. Stuart ejected from the seminar. In fact, the Complaint does not mentionIIllViuiutro at all in reference to the Stuart Assault.ll *ithout facts alleging Viviano's participation in the Stuart Assault, the claimedil-llcivil rights violations against Viviano are not valid claims, and must be dismissed withilllpre.udtce.illlC. Plaintiff's Civil Rishts Claims are barred because Viviano is not a Statell-ll Actorr-ll t state a claim under Section 1983, a plaintiff must allege: (1) a violation of allright secured by the Constitution and the laws of the United States; and (2)that theillldeprivation was committed by a person acting under color of state law. See West v.illlAtkins,487 U.S. 42, 48 (1988); Ketchum v. Cnty. of Alameda, 8l 1 F .2d 1243, 1245 (9thilllCir. 1987).illl I this case, the Plaintiffs' allegations against Viviano consist of general issuesllffui.rtiff, have with the family court system. Other than Viviano's connection to theil

{00649s73.DOCX} 10MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

17/23

il

I2aJ456789

1011L2T3T415t61718t9202t22232425262728

family court system as a practicing attorney, the Complaint fails to allege Viviano hasany relation to the government, or was working under color of state law. This does notmake Viviano a state actor because aprivate attorney, while participating in the trial ofa private state court action, is not acting under color of state law. Raitport v. ProvidentNat'l Bank,451 F. Supp. 522,531 (8.D. Pa. 1978) (emphasis added) (quoting Hansen v.Ahlgrimm, 520 F .2d 7 68, 7 7 0 (7 th Cir. 1 97 5) (citations omitted)).

There are simply no facts alleged that support a claim Viviano is a state actor.Without said allegations, Viviano cannot be liable for civil rights violations underSections 1983 and 1985. Accordingly, Plaintiffs claims against for civil rightsviolations against Viviano are invalid, and should be dismissed with prejudice.VI. THE I{OERR.PEN{INGTON D INE PRESENTS A SEPARATEA. The Allesations Asainst Viviano BARnsist ofo Protected Activitv

The Noerr-Pennington doctrine provides that those who petition any departmentof the government for redress are generally immune from statutory liability for theirpetitioning conduct. Sosa v. DIRECTV, nc.,437 F.3d923,929 (9th Cir. 2006). Itinitially emerged in the antitrust context. E. R.R. Presidents Conf v. Noerr MotorFreight, nc.,365U.5.127 (1961); Mine llorkers v. Pennington,38l U.S. 657 (1965).Recognizing the 'rightto petition extends to all departments of the government ' 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 at 929-30 (quoting Cal. Motor Transp. Co. v. TruckingUnlimited,404 U.S. 508, 510-11 (1972)).

Under the Noerr-Pennington 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. Sosa,437 F.3d at937. lTlhe law of this circuit establishes that communications between private partiesare sufficiently within the protection of the Petition Clause to trigger the Noerr-{00649573.DOCX} 11MEMORANDUM ISO MOTION TO DISMISS COMPLAINT- Case No.3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

18/23

HFIFItv)

q

1

2J456789

1011t213I41516T718t9202l22232425262728

llr*r--on docffine, so long as they are suffciently related to petitioning activi ty;'Id.lle..ruf courts have determined that lheNoerr-Pennington docfrine is analogous toll urrro*ia's anti-SLAPP statute and applies to protect defendants whose allegedl

llconduct invokes the right to petition the government for a redress of grievances.illl(Kearnel v. Foley & Lardner,553F. Supp. 2d 1178,1181 (S.D. Cal. 2008).)ll t BE&K Constr. Co. v. NLRB,536 U.S. 516,525 (2002), the Supreme Courtlladopted a three-part test to determine whether the defendant's conduct is immunized:llf f I irntify whether the lawsuit imposes a burden on petitioning rights, (2) decidell*n tn , the alleged activities constitute protected petitioning activity, and (3) analyzelllwhether the statutes at issue may be construed to preclude that burden on the protectedllpetitioni,rg activity . Id. at530-33, 535-37 .illl O the face of the Complaint, it is difficult to determine the basis for thellallegations against Viviano. However, the claims asserted against Viviano showllt,.t*t*.' base them on alleged actions taken by Viviano acting in an attorney-clientllrelationship with Stuart. Count 3 alleges Viviano breached the professional dutiesilllassociated with her one-time role as Stuart's attorney. Counts 12-15 are based onll af feeations of civil rights violations perpetr ated against Stuart as part of the familyllcourt system. According to the Complaint, the RICO allegations against Viviano arellrrur. on invoices sent for legal work performed for Stuart.lll tnis is the exact type of activity protected by Noerr-Pennington. Yiviano'slln.titiorring activities would unquestionably be burdened if she could be held liablellunder RICO or for federal civil rights violations for advice given to her own clien,llduring the litigation of the matter for which she was retained. This would clearly hinderllne, aUifitv to act within the procedures of the family court system.illl S.cond, Plaintif have not alleged any facts against Viviano which fall outsid. ofllprotected petitioning activity. The allegations in the Complaint establish Viviano'sil

llconaurt was directly linked to Stuart's divorce proceedings, just like all the otherllalleeations in the Complaint. Furthermore, in the litigation context, not only petitions

{oo649573.DOCX} t2MEMORANDT]M ISO MOTION TO DISMISS COMPLAINT _ CASC NO.3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

19/23

1

2J456789

10111,213t4l5t6T718T9202t22232425262728

sent directly to the court in the course of litigation, but also oconduct incidental to theprosecution of the suit' is protected." Sosa,437 F.3d at.934. Hence, all the conductaileged against Viviano is protected.

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. Plaintiffs' vague allegations that Viviano was somehow indirectly involvedin certain misrepresentations changes nothing. Viviano's conduct while acting both asan attorney in the family court and as Stuart's attorney is protected.

For all of these reasons Plaintiffs' claims, which seek to impute protectedpetitioning activity, arebarredby Noerr-Pennington doctnne, ffid Plaintiffs' Complaintshould be dismissed with prejudice.VII. LANHAM ACT CLAIMS A T VIVIANO ARE NOT VIABLE

To allege aLanhamAct violation, Plaintiffs must allege Viviano (1) "made falseor misleading statements as to his own product for another's]"; (2) "there is actualdeception or at least a tendency to deceive a subst antialportion 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) "thereis a likelihood of injury to the plaintiff in terms of declining sales, loss of good will,etc." L/arner-Lambert Co. v. BreathAsure, fnc.,204F.3d87,91-92 (3d Cir.2000);Southland Sod Farms v. Stover Seed Co.,108F.3d I 134,1139 (9th Cir. 1997). Underthis standard, a'laintiff must set forth what is false or misleading about a statement,and why it is false." Decker v. GlenFed, Inc. Qn re GlenFed, Inc. Sec. Litig.), 42 F.3d154I,1548 (9th Cir. Igg4). To allege aLarrttarnAct claim due to misleadingstatements, plaintif are "required to allege facts suggestingthat the marketplace was,actually confused or misled, not just that the marketplace could have been confused ormisled." Accenture Global Servs. GmbH v. Guidewire Softwre, fnc.,581 F. Supp. 2d6s4,666-67 (D. Del. 2008).

{00649573.DOCX} 13MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT _ Case No.3:13-CV.01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

20/23

A

1

2aJ456l89

10t1t213t415l61718t9202t22232425262728

A. The Complaint Fails to Alleee Viviano is a CoTnpetitor with PlaintiffsA claim for false advertising under the Lanham Act will not be sustained

[w]ithout a showing of direct competition. Jurin v. Google, [nc.,695 F. Supp. 2dIII7, lI22 (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 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 Networkv. Am.Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir. 2005). In the Ninth Circuit a plaintiffmust be in acfi)al or direct competition with the defendant and assert a competitiveinjury to establish standing. FLIR ^s. v. Sierra Media, nc.,903 F. Supp. 2d 1120,II42 (D. Or. 2012).

Count 2I ofthe Complaint alleges violation of the Lanham Act against allDefendants. However, the Complaint fails to allege Viviano is a direct competitor withPlaintiffs. Plaintiff Stuart is a disbarred attorney, and cannot practice in the family courtsystem. Plaintiff Lexevia is a suspended corporation, and cannot by definition be incompetition with Viviano. Plaintiff CCFC did not even exist until the day before theComplaint was filed, thus it could not have been in competition with Viviano at the timeof the events alleged in the Complaint.

Plaintiffs'LanharnAct claims must fail because none of the Plaintiffs is incompetition with Viviano, and these claims should be dismissed with prejudice.B. Plaintiffs' Lanham Act Allesations must be Analvzed under Heishtened

X'raud Pleadine StandardUnder Federal Rule of Civil Procedure 9(b), claims alleging fraud are subject to a

heightened pleading standard requiring the plaintiff to 'istate with particularity thecircumstances constituting fraud. Fed. R. Civ. P. 9(b). [T]he plaintiff must set forth{00649s73.DOCX} t4MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

21/23

FIF.ll

1

2aJ456789

1011t213l415t61718l9202t22232425262728

an explanation as to why the statement or omission complained of was false ormisleading. Yourish v. CaL Amplifier,l9l F.3d 983, 993 (gthCir. 1999). To avoiddismissal, Rule 9(b) requires plaintif to allege the time, place and specific content ofthe false representations as well as the identities of the parties to this representation.Edwards v. Marin Park, 1nc.,356 F.3d 1058, 1065-66 (9th Cir.2004).

The Lanham Act allegations against Viviano fail to meet the Rule 9 pleadingstandard. The Complaint merely alleges misleading advertising against all Defendants.(Complaint at flfl 260,265.). The complaint contains no further allegations specific toViviano related to the LanharnAct claims. Unlike many other RICO Defendants, theComplaint fails to provide specific statements attributed to Viviano. Thus, theComplaint fails to explain how Viviano has been misleading or the exact the statementswhich are allegedly fraudulent.

For these reasons, Plaintif Lanham Act claims are not properly pleaded againstViviano and must be dismissed with prejudice.VIII. PLAINTIFFS' VIOLATE RULE BECAUSE THEIR RICO CLAIMS

F'AIL TO ALLEGE PREDICATE ACTS WITI{ PARTICULARITYThe Complaint fails to expressly identifu any RICO predicate acts by Viviano,but again simply 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 representation. Id.Further, a plaintiff must set forth what is false or misleading about a statement, andwhy it is false. Decker v. GlenFed, Inc.,42F.3d I54I,1548 (9th Cir. 1994).

Plaintiffs have done none of these things. Rule 9(b) does not allow a complaintto 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 surrounding his alleged participation in the fraud. ' Swartzv. KPMG L.L.P.,476F.3d756,764-65 (9th Cir. 2007). Courts have repeatedly insistedthat, in addition to particularity of time, place, and manner of eachacir of fraud, the role{00649s73.DOCX} 15MEMORANDUM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

22/23

1

2J456789

1011t2t3t415T6

t718T9202T22232425262728

of each defendant in each scheme be described in RICO actions alleging the predicateacts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397,405 (gthCir. 199I). The Complaint fails to identify the time, place or manner of anyact of fraud alleged against Viviano. The Complaint also fails to state Viviano's role inany of the alleged RICO schemes.

In Pelletier v. Zweifel,92l F.2d 1465, 1518-19 (1 1th Cir. I 991), the EleventhCircuit affirmed the district court's dismissal of a RICO claim because it constituted"shotgun" pleadings that made it extremely difficult for the court and opposing partiesto identify the facts that would give rise to a cognizable claim. Id. aI 1518 (noting thatdefendant and "the district court had to sift through the facts presented and decide forthemselves which were material to the particular cause of action asserted, a difficult andlaborious task indee d."; see also Savage v. Council on Am.-Islamic Relations, Inc., 2008WL 2951281, at *14 (N.D. Cal. July 25, 2008) (RICO claim insufficient where plaintiffset forth a "redund antnarrative of allegations and conclusions of law, but fmade] noattempt to allege what facts are malerial to his claims under the RICO statute, or whatfacts are used to support what claims under particular subsections of RICO"); Fed.Reserve Bank of S.F. v. HK Sys., 1997 f|/L 227955, at *3 (N.D. Cal. 1997) (complaintinsufficient for failure to "identify exactly which acts are 'predicate acts' for RICOliability").

Similarly here, Plaintiffs' 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, Viviano is 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 Viviano to determinewhich, if any, predicate acts are alleged against her. This format of Complaint violatesRule 9(b).{0064es73.DOCX} r6MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT - CASE NO. 3:13-CV-01944-CAB-BLM


8/13/2019 54-1 Viviano Mtd

23/23

iI

1

2J456789

1011t213T415T6

t718T9202l22232425262728

Plaintiffs' complete failure to properly plead the RICO claims against Vivianowith the specificity required by Rule 9 requires dismissal with prejudice.IX. CONCLUSION

For the above reasons, Defendants Lori Clark Viviano and The Law Offices ofLori Clark Viviano request the Court dismiss Plaintiffs' Complaint with prejudice.

Dated: December 4,2013Respectfully submitted,WINGERT GREBING BRUBAKER JUSKIELLPBy: s/ Charles R. GrebLn

CHARLES R. GREBINGANDREW A. SERVAISAttornevs for DefendantsLORI CTANI( VIVIANO ANd LAWOFFICES OF'LORI CLARK VIVIANO


54-1 Viviano Mtd

Documents

Transcript of 54-1 Viviano Mtd