123 Motion To Strike Improper Supplemental Excerpts

Case: 14-56140, 02/13/2015, ID: 9421305, DktEntry: 123, Page 1 of 127
Case No. 14-56140

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN,
PBC, a Delaware public benefit corporation, COLBERN C. STUART, III
Plaintiffs-Appellants
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et al.
Defendants-Appellees
Appeal From The United States District Court
For The Southern District of California
Case No. 03-cv-1944 CAB (JLB)
The Honorable Cathy Ann Bencivengo
APPELLANTS MOTION TO STRIKE IMPROPER

SUPPLEMENTAL EXCERPTS OF RECORD
Colbern C. Stuart III, J.D.

President, California Coalition for
Families and Children, PBC
4891 Pacific Highway Ste. 102
San Diego, CA 92110
Telephone: 858-504-0171
Cole.Stuart@Lexevia.com
Plaintiff-Appellant In Pro Se
Dean Browning Webb, Esq.

Law Offices of Dean Browning Webb
515 E 39th St.
Vancouver, WA 98663-2240
Telephone: 503-629-2176
RICOman1968@aol.com
Counsel for Plaintiff-Appellant
California Coalition for
I.
MOTION AND RELIEF SOUGHT
PLEASE TAKE NOTICE that Appellants California Coalition for Families

and Children, PBC, and Colbern Stuart (collectively California Coalition) hereby
move this Court pursuant to Circuit Rule 30-2 for sanctions consisting of:
(1) Striking supplemental excerpts of record filed by certain of appellees
containing material not part of the district court record;
(2) Striking Commission on Judicial Performance Appellees Addendum of
Primary Authority (DktEntry 62 p. 29-47);
(3) Striking sections of the Appellees Answering Briefs based thereon; and
(4) Monetary sanctions.
II.
CERTAIN APPELLEES SUPPLEMENTAL EXCERPTS OF THE
RECORD INCLUDE MATERIAL NOT PART OF THE DISTRICT COURT
RECORD, AND NOT OTHERWISE ADMISSIBLE ON APPEAL
Appellees have filed fourteen separate answering briefs, some also filing
supplemental excerpts. Relevant to this motion are the following:
Fritz Appellees
DktEntry 45: Answering Brief of Jeffrey Fritz and Basie & Fritz (Frtz. Brf.);
DktEntry 45-2: Supplemental Excerpts of Record to Frtz. Brf. (Frtz Excerpts);
Judicial Appellees
DktEntry 51-1: Superior Court of San Diego County, Robert J. Trentacosta,
Michael Roddy, Judicial Council, AOC, Tani CantiSakauye, Lorna Alksne,
Christine K. Goldsmith, Jeannie Lowe, William Mcadam, Edlene McKenzie,
Michael S. Groch, Kristine P. Nesthus, Steven Jahr, Lisa Schall and Joel R.
Wohlfeil (Jud. Brf.);
DktEntry 51-2: Judicial Defendants-Appellees Supplemental Excerpts of
Record, Volume I (Jud. Brf. Excerpts);
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Commission Appellees:
DktEntry 62: Brad Batson, Commission on Judicial Performance and Lawrence
J. Simi (Comm. Brf.) including what Commission Appellees call Addendum of
Primary Authority (Comm. Addend.);
Doyne Appellees:
DktEntry 64: Stephen Doyne and Dr. Stephen Doyne, Inc. (Doyne Brf.);
DktEntry 64-2: Supplemental Excerpts of Record to Doyne Brf. (Doyne
Excerpts);
Federal (Chubb) Appellees:

DktEntry 65: Chubb Group of Insurance Companies (Federal Brf.);
DktEntry 65-2: Supplemental Excerpts of Record to Federal Brf. (Federal
Excerpts);
Alliance Appellees:
DktEntry 95-1: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon
Blanchet, National Family Justice Center Alliance (Alliance Brf. 73);
DktEntry 95-3 & 95-4: Volumes I and II, Supplemental Excerpts of Record to
Defendant-Appellee Alliances Answering Brief (Alliance Excerpts);
And all Joinders therein.
See Declaration of Colbern Stuart attached hereto.
A. Excerpts Consisting of Matter Not Within the District Court

Record May Be Stricken
Circuit Rule 30-1.1(a) provides:
Purpose
The purpose of the excerpts of record is to provide each member of the panel
with those portions of the record necessary to reach a decision. The parties
should ensure that . . . those parts of the record necessary to permit an
informed analysis of their positions are included in the excerpts.
(emphasis added).
Circuit Rule 30-1.7 provides:
Appellees Supplemental Excerpts of Record
If the appellee believes that the excerpts of record filed by the appellant
exclude items which are required under this rule, or if argument in the
answering brief requires . . . documents not included by appellant in the
excerpts, the appellee shall, submit supplemental excerpts of record, prepared
pursuant to this rule, comprised of the omitted items.
(emphasis added). Circuit Rule 30-2 provides:
If materials required to be included in the excerpts under these rules are
omitted, or irrelevant materials are included, the Court may take one or more
of the following actions:
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(a) strike the excerpts and order that they be corrected and resubmitted;
(b) order that the excerpts be supplemented;
(c) if the -Court concludes that a party or attorney has vexatiously or
unreasonably increased the cost of litigation by inclusion of irrelevant
materials, deny that portion of the costs the Court deems to be excessive;
and/or
(d) impose monetary sanctions.
Irrelevant excerpts may be disregarded or stricken. Allarcom Pay Television, Ltd. v.
Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995).
Any portion of
supplemental excerpts of record that contain unauthorized documents or matters that

were not part of the district court record may be stricken. Lowry v. Barnhart, 329
F3d 1019, 10241026 (9th Cir. 2003); Barcamerica Int'l USA Trust v. Tyfield
Importers, Inc., 289 F3d 589, 595 (9th Cir. 2002); Kirshner v. Uniden Corp. of
America, 842 F2d 1074, 1078 (9th Cir. 1988).
This limitation is fundamental. As a court of appeals, we lack the means to
authenticate documents submitted to us, so we must be able to assume that
documents designated part of the record actually are part of the record. To be
sure, the fact that a document is filed in the district court doesn't resolve all
questions of authenticity, but it does ensure that both opposing counsel and
the district court are aware of it at a time when disputes over authenticity can
be properly resolved. Litigants who disregard this process impair our ability
to perform our appellate function.
Lowry at 1024.
B. Appellees Supplemental Excerpts Contain Matter That May be

Stricken
Attached as Exhibit A (Exh. A) to the declaration of Colbern Stuart filed
herewith are tables identifying portions of Appellees Supplemental Excerpts which
violate one or more of this Courts rules. Attached as Exhibit B (Exh. B) to the
declaration are pages of answering briefs containing with references to the
inappropriate excerpts highlighted in red.
Offending excerpts include Fritz Appellees (DktEntry 45-2), Judicial
Appellees (DktEntry 51-2), Doyne Appellees (DktEntry 64-2) and Alliance
Appellees (DktEntry 95-3). Exhibit A Tables I-V identify offending excerpts and
detail each violation of this Courts rules.
In these excerpts Appellees attempt to introduce documents they offered via
requests for judicial notice in the district court, but which were withdrawn, vacated,
or not admitted. Generally, the requests for judicial notice sought admission of
dozens of documents which were (1) controversial, (2) inauthentic, (3) hearsay, (4)
irrelevant, (5) scurrilous, and/or (6) evidentiary matter inappropriate for admission
in support of defendants pleading motions to dismiss. Exh. A, col. 3. California
Coalition below timely objected to and/or moved to strike all request for judicial
notice, filing detailed memoranda. See Doc. No. 19 (Motion to Strike); Doc. No.
39-1 (Motion for Sanctions); Doc. No. 72, 72-1 (Motion to Strike Request for
Judicial Notice); Doc. No. 162 (Objections to Requests for Judicial Notice). Ex. A,
col. 3. See Stuart Decl.
The district court ignored all requests for judicial notice and objections
theretoneither striking, admitting, citing, nor relying on them in any order. ER 612, 41-49. None of the controversial evidence achieved judicial notice or admission
into evidence. Detailed below, the offending matter was withdrawn and/or should
have been stricken from the district court record, and is thus inappropriate for
admission on appeal via excerpts of the record. See Stuart Decl.
1. Fritz Appellees Excerpts Contain Exhibits to Requests for
Judicial Notice That Were Withdrawn Below, Never
Adjudicated, and Could Never Have Achieved Admission (Doc.
No. 48)
a. Fritz Request for Judicial Notice was Withdrawn
Fritz Supplemental Excerpts (DktEntry 45-2, Supp. ER 2-97) contain portions
of a request for judicial notice which Fritz offered below (Doc. No. 48), but which
was deemed withdrawn by the district court. The controversial exhibits are
identified at Exhibit A, Table I. See also AOB (DktEntry 43) p. 20-22.
In the first round of motions to dismiss, only Commission and Superior Court
motions scheduled for December 19, 2013 were adjudicated. All other defendants
motionsincluding the Fritz motion to dismiss and his request for judicial notice
(Doc. No. 48)were scheduled for hearing in January, 2014. Id.
At hearing on December19, 2013 and by order dated December 23, 2013, the
district court adjudicated only the Commission and Superior Court motions, and
deemed withdrawn and vacated the then-pending motions to dismiss
including the Fritz Appellees motion to dismiss (Doc. No. 48) and Request for
Judicial Notice and all exhibits thereto (Doc. Nos. 48-3-48-23). See AOB p. 22.
Fritz Appellees request for judicial notice therefore never achieved the record
below. As matter outside of the district court record, the Fritz Request for Judicial
Notice an exhibits thereto may not be part of the record on appeal. Circuit Rule 301.7, 30-1.1(a).
b. The Fritz Request for Judicial Notice (Doc. No. 48)
Could Never Have Achieved Admission in the District
Courtor on AppealBecause it Offers Matter
Inappropriate for Judicial Notice
The Fritz motion to dismiss attacked the complaint on Lexevias capacity and
representation, California Civil Code section 47 litigation privilege, statute of
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limitations for Section 1983, 1985, and 1986 claims, pleading sufficiency of Section
1985
claims, a Lanham Act common markets pleading sufficiency attack,
standing under RICO and prospective relief, and various Rule 9(b) fraud pleading
particularity issues. See Doc. No. 48-1 (Fritz memo in support of motion to dismiss);
Stuart Decl.
Fritz Appellees Request for Judicial Notice in support (Doc. No. 48-3-48-23)
attached exhibits consisting of pleadings in other litigation including (1) hearsay
pleadings from the Stuart dissolution (Stuart v. Stuart), (2) the City Attorneys
prosecution (People v. Stuart); (3) proceedings in the California State Bar (In re
Stuart); (4) prints of Internet web pages regarding Stuarts bar status in California,
Arizona, and Nevada, (5) hearsay emails between Fritzs counsel Mr. Van Dyke and
California Coalition counsel Mr. Webb; and (6) hearsay prints of Internet pages
regarding Lexevia, PC. See Stuart Decl. None of these exhibits were appropriate
for admission via judicial notice.
California Coalition immediately communicated objections to Fritzs
improper request for judicial notice tactic to counsel for Fritz here and below, Ms.
Debra Hurst and Mr. Kyle Van Dyke, demanding withdrawal of inappropriate
matter. Attached to the Declaration of Colbern Stuart as Exhibit C is a true and
correct copy of the December 6, 2013 letter from Colbern Stuart to Ms. Hurst and
Mr. Van Dyke.
Stuart objected that the exhibits were controversial hearsay
irrelevant to a pleading-stage motion to dismiss and inappropriate matter for

submission in a request for judicial notice. See Stuart Decl. Stuart also objected
certain exhibits contained confidential information regarding Mr. Fritz former
client, Ms. Stuart and her minor son, were not even referenced in Fritzs pleading
motion, and were filed solely to besmirch Stuart. See Stuart Decl. Stuart notified
Mr. Van Dyke of his intent to move to strike the exhibits from the record and seek
sanctions. Stuart Decl. Exh. C.
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Before Stuart could so move, at the December 19, 2013 hearing the district
court deemed withdrawn the Fritz motion and request for judicial notice. AOB
p. 21-22. Fritz Appellees did not attempt to re-introduce these exhibits in their
joinder to the Omnibus motion to dismiss (Doc. No. 138), and have not moved for
judicial notice to introduce these exhibits in this appeal. See Stuart Decl.
Detailed in Exhibit A Table I, rows A-G, the Fritz supplemental
excerpts improperly attempt to revive the withdrawn matter, are outside of the
record, irrelevant, controversial, scurrilous hearsay, and inappropriate excerpts in
violation of several of this Courts rules.
2. Judicial Appellees Excerpts Contain Exhibits to Two Requests
for Judicial Notice Not Adjudicated Below, and Could Never
Have Achieved Admission
Judicial Appellees also offer supplemental excerpts consisting of exhibits
offered below via a request for judicial notice. Stuart Decl. Exh. A, Table II, rows
A D. Doyne Appellees also offer the same exhibitJudicial Appellees request for
judicial notice in support of the Omnibus below. See Stuart Decl. Exh. A, Table III,
row C. Like Fritz, Judicial Appellees requests were not admitted or adjudicated in
the district court, were inappropriate there and on appeal, and may be stricken.
Judicial Appellees filed two requests for judicial notice below: (1) Doc. No.
16-2 in support of their initial motion to dismiss, and (2) Doc. No. 131-3 in support
of the Omnibus motion to dismissfiled by the lead drafter of the Omnibus (in
which all defendants below joined), appellee San Diego County Bar Association.
See Stuart Decl. The Omnibus request for judicial notice was nearly identical to the
Superior Courts initial request. Compare Doc. 131-3 (Omnibus request) with Doc.
No. 16-2 (Superior Courts request).
Judicial Appellees motions to dismiss in the district court asserted pleading
attacks similar to those Judicial Appellees have asserted in this appeal. See Doc.
Nos. 16 (initial motion) and 131 (Omnibus), 139 (supplemental to Omnibus) and
8
140 (joinder in Omnibus). Like Fritz, Judicial appellees attacked Rule 8, statute of
limitations, Lanham Act, RICO, and prospective relief standing, particularity under
Rule 9(b), pleading adequacy under civil rights act sections, and plausibility of
certain claims. See Stuart Decl. In addition, Judicial Appellees asserted judicial and
Eleventh Amendment immunities, an absolute quasi-judicial immunity for court
administrator Roddy, and Rooker-Feldman. Id.
In support of these pleading-stage motions, Judicial Appellees offered (1) a
hearsay declaration from the complaining witness in People v. Stuart, Assistant City
Attorney Emily Garson, (2) an arrest warrant from People v. Stuart, (3) a printed
page from the Internet reflecting California Coalitions corporate status in Delaware,
and (4) various pleadings in Stuarts State Bar prosecution in California Arizona and
Nevada (In re Stuart). See Stuart Decl.; California Coalitions Objections and
Motion to Strike at Doc. Nos. 21, 162. Like Fritzs exhibits, the documents were
controversial, hearsay, foundationless, scurrilous toward Stuart, and irrelevant to a
pleading-stage motionthus inappropriate matter for admission via a request for
judicial notice. See Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d
381, 385 (9th Cir.1995). California Coalition objected to both requests. Doc. Nos.
21, 162; Stuart Decl.
The district courts December 19 and 23, 2013 orders granting in part and
denying in part Judicial Appellees Motion to Dismiss (ER 41-49) neither granted
requests for judicial notice nor admitted or relied on the controversial evidence
submitted. Similarly, the district courts July 9, 2014 order dismissing the case with
prejudice (ER 6-12) neither granted, admitted, nor relied on any request for judicial
notice or exhibits submitted in the Omnibus round. See Stuart Decl.
Detailed in Exhibit A, Table II, rows A and D, the Judicial Appellees
supplemental excerpts attempt to revive matter that never achieved, and could never
achieve, the record in the district court in violation of several of this Courts rules.
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3. Doyne Supplemental Excerpts Contain Exhibits to a Request

For Judicial Notice Not Adjudicated Below, and Could Never
Have Achieved Admission
Doyne Appellees have also submitted exhibits to their request for judicial
notice which, like that of Fritz and Judicial Appellees, was filed but not adjudicated
or relied on by the district court, and could never have achieved admission. Exh. A,
Table III. The request was filed in support of Doyne Appellees separate joinder to
the Omnibus motion at Doc. No. 143. Exh. A, Table III, row E. The documents
consist of pleadings in California state court matters including Stuart v. Stuart;
Stuart v. Blanchet; and Tadros v. Doyne. See Stuart Decl.
Doyne Appellees offered the documents in support of their other grounds
arguments attempting to controvert the presumed-true allegations of the FAC which
alleges (1) Doyne acted as a commercial mediator on referral from and Judge
Wohlfeil, and (2) Stuart has been delayed by Doyne and others in filing this lawsuit
to support delayed accrual, tolling, and estoppel. See Doyne Appellees Answering
Brief at 17-18, 21-24; see also Stuart Decl. Ex. B. The authenticity of one of these
exhibits (DSER 87-93) was vigorously refuted by California Coalition below. See
Doc. No. 162 p. 6-8; Stuart Decl.
Doyne also offers the evidentiary declaration of lead counsel on the Omnibus,
Mr. Stephen Lucas. See Stuart Decl. Exh. A, Table III, row B. California Coalition
objected, and the district court ignored, this exhibit below. See AOB (DktEntry 43)
p. 34.
None of the exhibits are relevant to any issue in Doynes pleading-stage
motion (see Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381,
385 (9th Cir.1995)), none were admitted by judicial notice in the district court, and
for the same reasons none could achieve the record in this appeal by judicial notice
even if Doyne Appellees would have properly sought such admission.
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4. Federal (Chubb) Supplemental Excerpts Contain Exhibits to a

Request For Judicial Notice Not Adjudicated Below, and Could
Never Have Achieved Admission
Federal Insurance Company (sued as Chubb Group of Insurance Companies)
(Federal) offers in this appeal two exhibits from its request for judicial notice in
support of its joinder in the Omnibus below. Stuart Decl. Exh. A, Table IV, row B.
The exhibits are (1) a letter from a Federal (Chubb) liability claim adjuster to Stuart
and (2) the form RICO Case Statement used by the Southern district. See Stuart
Decl.
Federal offered the adjusters letter to support of argument contradicting the
FAC. Federal claims its involvement in the case ended with its adjusters denial of
Stuarts liability claim for the Stuart Assault. See Fed. Brf. p. 8-10. The FAC alleges
otherwise, that Federals adjuster threatened to prosecute Stuart for criminal
trespass if he proceeded with his claim, and subsequently did so by conspiring with
the county bar association, the Stuart Assault Coordinators, and the City Attorney
Defendants to prosecute Stuart for harassing judges by his attendance at the April
15, 2010 SDCBA Litigants Behaving Badly seminar. See ER 43, 135-137 (Stuart
Assault); Count 3 (ER 177-190) (Malicious Prosecution), claim 3.1 (naming Chubb)
(ER 201-202), Count 8 (naming Chubb) (ER 252-254), Racketeering Enterprises 1,
2, 5; Racketeering Count 3, Claims for Relief 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 (kidnapping),
Count 4, Claims for Relief 4.1, 4.2 (extortion); Count 5, Claims for Relief 5.1, 5.2.
5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10 (obstruction of justice), Count 6 (ViCAR),
Counts 7-10 (racketeering conspiracy and aiding and abetting) and Count 11 (RICO
prospective relief). See Stuart Decl.
California Coalition did not contest Federals offer of the non-controversial
Southern District RICO Case Statement form, but asserted the noncontroversial
existence of an available form is not a defense to California Coalitions FAC
pleading RICO independently of the form. See Doc. No. 161 p. 96.
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None of Federals exhibits are relevant to any issue in its pleading-stage

motion, none were admitted by judicial notice in the district court, and for the same
reasons none could achieve the record in this appeal by judicial notice even if Federal
would have properly sought such admission.
5. Alliance Appellees Supplemental Excerpts Contain Exhibits to
a Request For Judicial Notice Not Adjudicated Below, and
Could Never Have Achieved Admission
Alliance Appellees also submitted excerpts consisting supplemental exhibits
consisting of exhibits to their request for judicial notice below which, like that of
Fritz Appellees, Judicial Appellees, Doyne Appellees and Federal, were filed but not
adjudicated or relied on by the district court below, and could never have achieved
admission. Exh. A, Table V. The request was filed in support of Alliance Appellees
separate joinder to the Omnibus motion at Doc. No. 143. Exh. A, Table V, row E.
The documents consist of pleadings in a California state court matter Stuart v.
Blanchet. See Stuart Decl.
Stuart did not object to the Alliances request for judicial notice below and
concedes the veracity of the exhibits. However, none of the exhibits are relevant to
any issue in Alliance Appellees pleading-stage motion, none were admitted by
judicial notice in the district court, and for the same reasons none could achieve the
record in this appeal by judicial notice even if Alliance Appellees would have
properly sought such admission. See Stuart Decl.
C. Appellees Answering Briefs Reference Supplemental Excerpts Not
Part of the District Court Record
Certain Appellees answering briefs incorporate the improper excerpts
described above. The shaded portions of the tables in Exhibit A to the Declaration
of Colbern Stuart, column 4, identify excerpts improperly referenced. Exhibit B
contains copies of pages of answering briefs on which references to improperly-filed
excerpts are locatedhighlighted in red.
12
This Court gives no consideration to materials stricken from the record in

adjudicating an appeal. Kirshner v. Uniden Corp. of America, supra, 842 F2d at
1077; Tonry v. Security Experts, Inc., 20 F3d 967, 974 (9th Cir. 1994). Portions of
the answering briefs containing references to improper excerpts may be disregarded
or stricken. Id.
D. Commission on Judicial Performance Addendum of Primary
Authority is Utilized as Fact, Not Law
Federal Rule of Appellate Procedure 28(f) permits reproduction of law in an
addendum at the end of a brief. Detailed at Appellants Joint Consolidated Reply
Brief, DktEntry 119 (Reply) p. 38-40, Commission Appellees Addendum
(DktEntry 62 p. 29-47) is not citation to authority but an attempt to assert law as fact
supporting the Commissions claim to statehood under the Eleventh Amendment
an issue of fact. See Reply p. 38-39. Stuart Declaration Exhibit B highlights in red
the Commission Appellees offending addendum and references thereto in
Commission Appellees Answering brief.
In the district court Commission Appellees did not, and could not at the
pleading stage, introduce the addendum. They offer the addendum in this context as
controversial, inadmissible hearsay offered for the truth of the matters asserted.
Such is inadmissible here or in the district court. Federal Rule of Evidence 201;
Federal Rule of Civil Procedure 12(b)(6).
The addendum thus may be stricken under Circuit Rule 30-1.7 and 30-1.1(a)
as controversial factual matter not admitted or admissible in the district court, and
thus outside of the record.
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E. Appellees Improperly Attach Entire Memoranda Filed Below and

Incorporate Same by Reference
Detailed in Exhibit A, Tables I-V, column 5, all appellees have submitted
entire memoranda filed in the district court. Circuit Rule 28-1(b) Provides:
Parties must not append or incorporate by reference briefs submitted to the
district court or agency or this Court in a prior appeal, or refer this Court to
such briefs for the arguments on the merits of the appeal.
Circuit Rule 30-1.5 provides:
Items Not to Be Included in the Excerpts of Record
The excerpts of record shall not include briefs or other memoranda of law
filed in the district court unless necessary to the resolution of an issue on
appeal, and shall include only those pages necessary therefor.
The excerpts identified in Stuart Declaration Exhibit A, Table I, column 5, rows BG, H, I; Table II, column 5, rows A-E; Table III, column 5, rows A, C-E; Table IV,
column 5, rows A-C; and Table V, column 5, rows A-J are improper copies of entire
memoranda and attempts to incorporate same by reference, and may be stricken.
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III.
MONETARY SANCTIONS ARE APPROPRIATE
This Court may sanction a party or attorney for improperly filing or relying
on materials that are not part of the record. Circuit Rule 30-2(d); Lowry at 1024
1026. Under 28 U.S.C. 1927:
Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys' fees reasonably incurred
because of such conduct.
We have held that filing a frivolous appeal qualifies as unreasonably and
vexatiously multipl[ying] the proceedings. Cruz v. Savage, 896 F.2d 626, 635 (1st
Cir.1990); Sanchez-Rodriguez v. AT & T Mobility Puerto Rico, Inc., 673 F.3d 1, 16
(1st Cir. 2012).
Most of the inappropriate matter submitted by Appellees was objected to in
the district court. See Exhibt A, Tables I-V, column 3. The district court refused to
admit or disregarded appellees offending excerpts. See Table A, columns 3, 4;
AOB and Reply. Appellees are thus aware of the impropriety of their excerpts. That
Appellees submit these same objectionable exhibits on appeal while so aware is
unreasonable, an unfaithful litigation tactic, and vexatious. Monetary sanctions
awarding costs to Appellants in preparing this Motion and relevant portions of the
Reply are therefore appropriate.
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IV.
CONCLUSION
Pursuant to Circuit Rule 30-2(a), (c), and (d), California Coalition respectfully
requests this Court impose sanctions on Appellees by (1) striking offending
supplemental excerpts identified in Table A, (2) striking portions of answering
briefs relying thereon as identified in Table B, (3) striking Commission Appellees
Addendum of Primary Authority, and (4) ordering monetary sanctions from and/or
denying costs on appeal to referenced Appellees for filing and relying on the
offending material unreasonably and vexatiously.
Respectfully Submitted,
Dated: February 13, 2015
By: s/ Colbern C. Stuart III

Colbern C. Stuart, III
Families and Children, PBC,
in Pro Se
By: s/ Dean Browning Webb

Law Offices of Dean Browning Webb
Counsel for Plaintiff-Appellant
California Coalition for
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DECLARATION OF COLBERN STUART IN SUPPORT OF MOTION TO

STRIKE IMPROPER SUPPLEMENTAL EXCERPTS OF RECORD
I, Colbern C. Stuart, III declare:
1.
I am a plaintiff-appellant in this action and President of plaintiff-appellant
California Coalition for Families and Children, PBC. I have personal knowledge of
the facts stated herein.
2.
I submit this declaration in support of the accompanying Plaintiffs-
Appellants motion to Strike Improper Excerpts.

A. Relevant Pleadings:
3.
Appellees have filed fourteen separate answering briefs, some also filing
supplemental excerpts. Relevant to this motion are the following:
Fritz Appellees
DktEntry 45: Answering Brief of Jeffrey Fritz and Basie & Fritz (Frtz. Brf.);
DktEntry 45-2: Supplemental Excerpts of Record to Frtz. Brf. (Frtz Excerpts);
Judicial Appellees
DktEntry 51-1: Superior Court of San Diego County, Robert J. Trentacosta,
Michael Roddy, Judicial Council, AOC, Tani CantiSakauye, Lorna Alksne,
Christine K. Goldsmith, Jeannie Lowe, William Mcadam, Edlene McKenzie,
Michael S. Groch, Kristine P. Nesthus, Steven Jahr, Lisa Schall and Joel R.
Wohlfeil (Jud. Brf.);
DktEntry 51-2: Judicial Defendants-Appellees Supplemental Excerpts of
Record, Volume I (Jud. Brf. Excerpts);
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Commission Appellees:
DktEntry 62: Brad Batson, Commission on Judicial Performance and Lawrence
J. Simi (Comm. Brf.) including what Commission Appellees call Addendum of
Primary Authority (Comm. Addend.);
Doyne Appellees:
DktEntry 64: Stephen Doyne and Dr. Stephen Doyne, Inc. (Doyne Brf.);
DktEntry 64-2: Supplemental Excerpts of Record to Doyne Brf. (Doyne
Excerpts);
Federal (Chubb) Appellees:

DktEntry 65: Chubb Group of Insurance Companies (Federal Brf.);
DktEntry 65-2: Supplemental Excerpts of Record to Federal Brf. (Federal
Excerpts);
Alliance Appellees:
DktEntry 95-1: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon
Blanchet, National Family Justice Center Alliance (Alliance Brf. 73); and
DktEntry 95-3 & 95-4: Volumes I and II, Supplemental Excerpts of Record to
Defendant-Appellee Alliances Answering Brief (Alliance Excerpts).
And all Joinders therein.
B. Exhibits Hereto
4. Attached hereto as Exhibit A and incorporated herein as if set forth in full is a
chart identifying portions of Appellees Supplemental Excerpts which violate one
or more of the rules of Appellate Procedure, Circuit Rules, or Federal Rules of
Evidence.
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5. Attached hereto as Exhibit B are copies of pages from Appellees Answering

Briefs on which references or incorporations of the supplemental excerpts
identified in Exhibit A are locatedhighlighted in red.
C. Supplemental Excerpts Contain Requests for Judicial Notice Not
Granted or Admitted Below
6. In their Supplemental Excerpts certain Appellees attempt to introduce documents
they offered via requests for judicial notice in the district court, but which were
withdrawn, vacated, or not admitted. Generally, the requests for judicial notice
sought admission of dozens of documents which were (1) controversial, (2)
inauthentic, (3) hearsay, (4) irrelevant, (5) scurrilous, and/or (6) evidentiary
matter inappropriate for admission in support of defendants pleading motions to
dismiss. Exh. A, col. 3.
7. California Coalition below timely objected to and/or moved to strike all request
for judicial notice, filing detailed memoranda. See Doc. No. 19 (Motion to
Strike); Doc. No. 39-1 (Motion for Sanctions); Doc. No. 72, 72-1 (Motion to
Strike Request for Judicial Notice); Doc. No. 162 (Objections to Requests for
Judicial Notice). Ex. A, col. 3.
8. The district court ignored all requests for judicial notice and objections thereto
neither striking, admitting, citing, nor relying on them in any order. ER 6-12, 4149. None of the controversial evidence achieved judicial notice or admission into
evidence.
9. The offending matter was withdrawn and/or should have been stricken from the
district court record, and is thus inappropriate for admission on appeal via
excerpts of the record.
19
1. Fritz Appellees Excerpts

10. Fritz Supplemental Excerpts (DktEntry 45-2, Supp. ER 2-97) contain portions of
a request for judicial notice which Fritz offered below (Doc. No. 48), but which
was deemed withdrawn by the district court. The controversial exhibits are
identified at Exhibit A, Table I. See also AOB (DktEntry 43) p. 20-22.
11. In the first round of motions to dismiss, only Commission and Superior Court
motions scheduled for December 19, 2013 were adjudicated.
All other
defendants motionsincluding the Fritz motion to dismiss and his request for
judicial notice (Doc. No. 48)were scheduled for hearing in January, 2014. Id.
12. At hearing on December19, 2013 and by order dated December 23, 2013, the
district court adjudicated only the Commission and Superior Court motions, and
deemed withdrawn and vacated the then-pending motions to dismiss
including the Fritz Appellees motion to dismiss (Doc. No. 48) and Request for
Judicial Notice and all exhibits thereto (Doc. Nos. 48-3-48-23). See AOB p. 22.
Fritz Appellees request for judicial notice therefore never achieved the record
below.
13. The Fritz motion to dismiss attacked the complaint on Lexevias capacity and
representation, California Civil Code section 47 litigation privilege, statute of
limitations for Section 1983, 1985, and 1986 claims, pleading sufficiency of
Section 1985 claims, a Lanham Act common markets pleading sufficiency
attack, standing under RICO and prospective relief, and various Rule 9(b) fraud
pleading particularity issues. See Doc. No. 48-1 (Fritz memo in support of
motion to dismiss).
14. Fritz Appellees Request for Judicial Notice in support (Doc. No. 48-3-48-23)
attached exhibits consisting of pleadings in other litigation including (1) hearsay
pleadings from the Stuart dissolution (Stuart v. Stuart), (2) the City Attorneys
prosecution (People v. Stuart); (3) proceedings in the California State Bar (In re
Stuart); (4) prints of Internet web pages regarding Stuarts bar status in
20
California, Arizona, and Nevada, (5) hearsay emails between Fritzs counsel Mr.
Van Dyke and California Coalition counsel Mr. Webb; and (6) hearsay prints of
Internet pages regarding Lexevia, PC. None of these exhibits were appropriate
for admission via judicial notice.
15. I and California Coalition immediately communicated objections to Fritzs
improper request for judicial notice tactic to counsel for Fritz here and below,
Ms. Debra Hurst and Mr. Kyle Van Dyke, demanding withdrawal of
inappropriate matter. Attached hereto as Exhibit C is a true and correct copy
of my December 6, 2013 letter to Ms. Hurst and Mr. Van Dyke.
16. In this letter I objected that Fritz Appellees exhibits were controversial hearsay
irrelevant to a pleading-stage motion to dismiss and inappropriate matter for
submission in a request for judicial notice. I also objected certain exhibits
contained confidential information regarding Mr. Fritz former client, Ms. Stuart
and her minor son.
17. Most of Fritz scurrilous, irrelevant exhibits were not even referenced in Fritzs
pleading motion. The only possibly reason Fritz Appellees and their counsel
could have for filing such documents was to reveal confidential information
about my dissolution proceeding, Ms. Stuarts and my son, Croix Stuart.
18. I believe Fritz Appellees sole purpose for filing these documentsand their sole
purpose for filing them again in this appealis to defame and besmirch me and
my family.
19. In my letter I demanded Ms. Hurst and Mr. Van Dyke withdraw the exhibits and
informed of my intent to move to strike the exhibits from the record and seek
sanctions. See Exhibit C hereto.
20. Before I could so move, at the December 19, 2013 hearing the district court
deemed withdrawn the Fritz motion and request for judicial notice. AOB p.
21-22. Fritz Appellees did not attempt to re-introduce these exhibits in their
21
joinder to the Omnibus motion to dismiss (Doc. No. 138), and have not moved
for judicial notice to introduce these exhibits in this appeal.
21. Detailed in Exhibit A Table I, rows A-G, the Fritz supplemental excerpts
improperly attempt to revive the withdrawn matter, are outside of the record,
irrelevant, controversial, scurrilous hearsay, and inappropriate excerpts in
violation of several of this Courts rules.
2. Judicial Appellees Excerpts
22. . Judicial Appellees also offer supplemental excerpts consisting of exhibits
offered below via a request for judicial notice. See Exh. A, Table II, rows A D.
Doyne Appellees also offer the same exhibitJudicial Appellees request for
judicial notice in support of the Omnibus below. See Exh. A, Table III, row C.
Like Fritz, Judicial Appellees requests were not admitted or adjudicated in the
district court, were inappropriate there and on appeal, and may be stricken.
23. Judicial Appellees filed two requests for judicial notice below: (1) Doc. No. 162 in support of their initial motion to dismiss, and (2) Doc. No. 131-3 in support
of the Omnibus motion to dismissfiled by the lead drafter of the Omnibus
(in which all defendants below joined), appellee San Diego County Bar
Association. The Omnibus request for judicial notice was nearly identical to the
Superior Courts initial request. Compare Doc. 131-3 (Omnibus request) with
Doc. No. 16-2 (Superior Courts request).
24. Judicial Appellees motions to dismiss in the district court asserted pleading
attacks similar to those Judicial Appellees have asserted in this appeal. See Doc.
Nos. 16 (initial motion) and 131 (Omnibus), 139 (supplemental to Omnibus)
and 140 (joinder in Omnibus).
25. Like Fritz, Judicial appellees attacked Rule 8, statute of limitations, Lanham Act,
RICO, and prospective relief standing, particularity under Rule 9(b), pleading
adequacy under civil rights act sections, and plausibility of certain claims. In
22
addition, Judicial Appellees asserted judicial and Eleventh Amendment

immunities, an absolute quasi-judicial immunity for court administrator
Roddy, and Rooker-Feldman. Id.
26. In support of these pleading-stage motions, Judicial Appellees offered (1) a
hearsay declaration from the complaining witness in People v. Stuart, Assistant
City Attorney Emily Garson, (2) an arrest warrant from People v. Stuart, (3) a
printed page from the Internet reflecting California Coalitions corporate status
in Delaware, and (4) various pleadings in Stuarts State Bar prosecution in
California Arizona and Nevada (In re Stuart).
See California Coalitions
Objections and Motion to Strike at Doc. Nos. 21, 162.

27. Like Fritzs exhibits, the documents were controversial, hearsay, foundationless,
scurrilous toward Stuart, and irrelevant to a pleading-stage motionthus
inappropriate matter for admission via a request for judicial notice. California
Coalition objected to both requests. Doc. Nos. 21, 162.
28. The district courts December 19 and 23, 2013 orders granting in part and
denying in part Judicial Appellees Motion to Dismiss (ER 41-49) neither granted
requests for judicial notice nor admitted or relied on the controversial evidence
submitted. Similarly, the district courts July 9, 2014 order dismissing the case
with prejudice (ER 6-12) neither granted, admitted, nor relied on any request for
judicial notice or exhibits submitted in the Omnibus round.
29. Detailed in Exhibit A, Table II, rows A and D, the Judicial Appellees
supplemental excerpts attempt to revive matter that never achieved, and could
never achieve, the record in the district court in violation of several of this Courts
rules.
3. Doyne Appellees Excerpts
30. Doyne Appellees have also submitted exhibits to their request for judicial notice
which, like that of Fritz and Judicial Appellees, was filed but not adjudicated or
23
relied on by the district court, and could never have achieved admission. Exh. A,
Table III. The request was filed in support of Doyne Appellees separate joinder
to the Omnibus motion at Doc. No. 143. Exh. A, Table III, row E. The
documents consist of pleadings in California state court matters including Stuart
v. Stuart; Stuart v. Blanchet; and Tadros v. Doyne.
31. Doyne Appellees offered the documents in support of their other grounds
arguments attempting to controvert the presumed-true allegations of the FAC
which alleges (1) Doyne acted as a commercial mediator on referral from and
Judge Wohlfeil, and (2) Stuart has been delayed by Doyne and others in filing
this lawsuit to support delayed accrual, tolling, and estoppel.
See Doyne
Appellees Answering Brief at 17-18, 21-24; see also Stuart Decl. Ex. B. The
authenticity of one of these exhibits (DSER 87-93) was vigorously refuted by
California Coalition below. See Doc. No. 162 p. 6-8.
32. Doyne also offers the evidentiary declaration of lead counsel on the Omnibus,
Mr. Stephen Lucas. See Stuart Decl. Exh. A, Table III, row B. California
Coalition objected, and the district court ignored, this exhibit below. See AOB
(DktEntry 43) p. 34.
33. None of the exhibits are relevant to any issue in Doynes pleading-stage motion,
none were admitted by judicial notice in the district court, and for the same
reasons none could achieve the record in this appeal by judicial notice even if
Doyne Appellees would have properly sought such admission.
4. Federal (Chubb) Excerpts
34. Federal Insurance Company (sued as Chubb Group of Insurance Companies)
(Federal) offers in this appeal two exhibits from its request for judicial notice
in support of its joinder in the Omnibus below. Exh. A, Table IV, row B. The
exhibits are (1) a letter from a Federal (Chubb) liability claim adjuster to Stuart
and (2) the form RICO Case Statement used by the Southern district.
24
35. Federal offered the adjusters letter to support of argument contradicting the
FAC. Federal claims its involvement in the case ended with its adjusters denial
of Stuarts liability claim for the Stuart Assault. See Fed. Brf. p. 8-10. The FAC
alleges otherwise, that Federals adjuster threatened to prosecute me for criminal
trespass if I proceeded with my claim against SDCBA and the Stuart Assault
Coordinators, and subsequently did so by conspiring with the county bar
association, the Stuart Assault Coordinators, and the City Attorney Defendants
to prosecute me for harassing judges by his attendance at the April 15, 2010
SDCBA Litigants Behaving Badly seminar. See ER 43, 135-137 (Stuart
Assault); Count 3 (ER 177-190) (Malicious Prosecution), claim 3.1 (naming
Chubb) (ER 201-202), Count 8 (naming Chubb) (ER 252-254), Racketeering
Enterprises 1, 2, 5; Racketeering Count 3, Claims for Relief 3.2, 3.3, 3.4, 3.5, 3.6,
3.7 (kidnapping), Count 4, Claims for Relief 4.1, 4.2 (extortion); Count 5, Claims
for Relief 5.1, 5.2. 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10 (obstruction of justice),
Count 6 (ViCAR), Counts 7-10 (racketeering conspiracy and aiding and abetting)
and Count 11 (RICO prospective relief).
36. I and California Coalition did not contest Federals offer of the non-controversial
Southern District RICO Case Statement form, but asserted the noncontroversial
existence of an available form is not a defense to California Coalitions FAC
pleading RICO independently of the form. See Doc. No. 161 p. 96.
37. None of Federals exhibits are relevant to any issue in its pleading-stage motion,
Federal would have properly sought such admission.
5. Alliance Appellees Excerpts
38. . Alliance Appellees also submitted excerpts consisting supplemental exhibits
consisting of exhibits to their request for judicial notice below which, like that of
25
Fritz Appellees, Judicial Appellees, Doyne Appellees and Federal, were filed but
not adjudicated or relied on by the district court below, and could never have
achieved admission. Exh. A, Table V. The request was filed in support of
Alliance Appellees separate joinder to the Omnibus motion at Doc. No. 143.
Exh. A, Table V, row E. The documents consist of pleadings in a California state
court matter Stuart v. Blanchet.
39. Neither I nor California Coalition objected to the Alliances request for judicial
notice below and I concede the veracity of the exhibits. However, none of the
exhibits are relevant to any issue in Alliance Appellees pleading-stage motion,
Alliance Appellees would have properly sought such admission.
D. References to Excerpts in Answering Briefs
40. . Certain Appellees answering briefs incorporate the improper excerpts
described above.
The shaded portions of the tables in Exhibit A to the
Declaration of Colbern Stuart, column 4, identify excerpts improperly

referenced. Exhibit B contains copies of pages of answering briefs on which
references to improperly-filed excerpts are locatedhighlighted in red.
E. Commission Appellees Submit Law in an Addendum as Fact
Detailed at Appellants Joint Consolidated Reply Brief, DktEntry 119
(Reply) p. 38-40, Commission Appellees Addendum (DktEntry 62 p. 29-47) is
not citation to authority but an attempt to assert law as fact supporting the
Commissions claim to statehood under the Eleventh Amendmentan issue of fact.
See Reply p. 38-39. My Declaration Exhibit B highlights in red the Commission
Appellees offending addendum and references thereto in Commission Appellees
Answering brief.
26
41. In the district court Commission Appellees did not, and could not at the pleading
stage, introduce the addendum. They offer the addendum in this context as
controversial, inadmissible hearsay offered for the truth of the matters asserted.
42. Attached hereto as Exhibit C is a true and correct copy of my letter of
December 6, 2013 letter from Colbern Stuart to Ms. Hurst and Mr. Van Dyke.
F. Monetary Sanctions Are Appropriate
43. I and California Coalition objected to most of the inappropriate matter submitted
by Appellees in the district court. See Exhibt A, Tables I-V, column 3. The
district court refused to admit or disregarded appellees offending excerpts. See
Table A, columns 3, 4; AOB and Reply.
44. Appellees are thus aware of the impropriety of their excerpts.
45. That Appellees submit these same objectionable exhibits on appeal while so
aware is unreasonable, an unfaithful litigation tactic, and vexatious. Monetary
sanctions awarding costs to Appellants in preparing this Motion and relevant
portions of the Reply are therefore appropriate.
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct.
By:
Colbern C. Stuart III
Colbern C. Stuart, III, JD

In Pro Se
27
Case No. 14-56140

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et al.,
Exhibits to Declaration of Colbern Stuart in Support of
Appellants Motion to Strike Improper Supplemental Excerpts
Exhibit A
Exhibit A
To Declaration of Colbern Stuart in Support of Motion to
Strike Improper Supplemental Excerpts of Record
Legend for Tables
Column 1 is the page number of the supplemental excerpt from appellees submission in
this appeal;
Column 2 is a description of the excerpt from the offering appellees table of contents;
Column 3 is the district court Docket Number and treatment of the excerpt in the district
court;
Column 4 is the location in an answering brief referencing the excerpt (if any);
Column 5 is Appellants objection/violation under Federal Rules of Appellate
Procedure/Evidence.
Shaded areas relate to section X of the Motion discussing references to improper excerpts
in briefing.
Table I
Fritz Supplemental Excerpts (DktEntry 45-2)
(and Bierer Joinder, County Joinder; See Exh. B hereto)
#
1
2
Excerpt
Description
Page
No.
A Supp.ER Print of Internet
1
page purporting to
be incorporation
information for
California
Coalition for
Families and
Children, PBC;
3
Dist. Court
Disposition
4
Answr.
Brf. Ref.
Excerpt was filed DktEntry

as exhibit to
45-1 p. 9
Judicial
Defendants
Request for
Judicial Notice
(Doc. No. 16-2
in district court)
in Support of
Judicial
Defendants
Motion to
Dismiss
Complaint (Doc.
No. 16)
1
5
Objection Here
1. Same as below (Doc.
No. 19): Factual matter
submitted in support a
pleading motion; lacks
foundation; irrelevant to
any issue below or on
appeal (Circuit Rule 302);
2. Exhibit not judicially
noticeable in district
court or on appeal
(Federal Rule of
Evidence 201).
Appellant Stuart
objected/moved
to strike as
irrelevant,
lacking
foundation in
Motion to Strike
(Doc. No. 19);
B Supp.ER Pleadings from

2-72
Stuart v. Stuart
dissolution
District court did

not admit or rely
on exhibit in
ruling on Motion
to Dismiss (ER
41-49)
Excerpt was filed DktEntry
as exhibit to Fritz 45-1 p. 9Request for
10
Judicial Notice
(Doc. No. 48-3)
in support of
Fritz Motion to
Dismiss (Doc.
No. 48) in
district court
Fritz motions to
dismiss and
request for
judicial notice
were deemed
withdrawn and
vacated by
district court.
Doc. No. 86, ER
16 (minute
order); ER 45,
49 (Order); ER
60 (transcript
2
3. Violation of Circuit
Rule 30-1.7, 30-1.1(a)
(matter withdrawn/not
part of record below);
4. Appellees failed to
file motion for judicial
notice on appeal.
Rule 30-1.7, 30-1.1(a)
(matter not part of
record below). The
excerpt is factual matter
(withdrawn) pleading
motion below;
2. Excerpt is not
judicially noticeable as
controversial hearsay in
district court or on
appeal (Federal Rule of
Evidence 201); lacks
foundation;
3. Excerpt is irrelevant
to any issue below or
on appeal (Circuit Rule
30-2)
ordering motions
vacated);
C Supp.ER Criminal
73-79
Complaint in
People v. Stuart
D Supp.ER Order entering
80-81 & default in state bar
88-89
proceedings
E Supp.ER Order of
82-87
Involuntary
Active
Enrollment for
Stuart in Nevada
F Supp.ER Internet web
90-93
pages re: Stuart
bar status for
California,
Arizona
G Supp.ER Order of
94-97
Temporary
Suspension,
Nevada
H Supp.ER Omnibus motion
107-131 to dismiss
memorandum of
points and
authorities
I Supp.ER Defendants
132-140 Reply to Omnibus
motion to dismiss
memorandum
Exhibit was
never admitted
below
Same
Same
DktEntry Same
45-1 p.
10-11
DktEntry Same
45-1 p. 11
Same
DktEntry Same
45-1 p. 11
Same
DktEntry Same
45-1 p. 11
Same
DktEntry Same
45-1 p. 11
Doc. No. 131 in

district court
Violation of Circuit
Rule 30-1.5 (copy of
entire memorandum
from district court)
Doc. No. 181 in

district court
Same
Table II
Judicial Defendants Supplemental Excerpts (DktEntry 51-2
and all Joinders; see Exh. B hereto)
#
1
2
Excerpt
Description
Page
Judicial
A SER
64-94
Defendants
Request for
Judicial Notice in
support of motion
to dismiss, exhibits
3
Dist. Court
Disposition
Excerpt was
filed as exhibit
to Judicial
Defendants
Request for
Judicial Notice
(Doc. No. 16-2
in district court)
in Support of
Judicial
Defendants
Motion to
Dismiss
Complaint (Doc.
No. 16)
Appellant Stuart
objected/moved
to strike as
irrelevant,
lacking
foundation in
Motion to Strike
(Doc. No. 19);
District court
did not admit or
rely on exhibit
in ruling on
Motion to
Dismiss (ER 4149)
4
4
Answr
Brf. Ref.
Jud. Brf.
p. 19-21
(and
joinders)
5
Objection Here
1. Same as below (Doc.
No. 19): Factual matter
court or on appeal
(Federal Rule of
Evidence 201).
Rule 30-1.7, 30-1.1(a)
(matter withdrawn/not
notice on appeal.
Judicial
B SER
134-154 Defendants Reply
to Opposition to
Motion to Dismiss
Omnibus motion to
C SER
159-183 dismiss
memorandum
Request for
D SER
184-219 Judicial Notice in
Support of
Omnibus Motion to
Dismiss (and all
exhibits thereto).
Exhibits include (1)
a declaration in
support of arrest
warrant in People
v. Stuart; (2) an
arrest warrant in
People v. Stuart;
(3) Print of Internet
page purporting to
be incorporation
information for
California
Coalition for
Families and
Children, PBC; (4)
Print of Internet
page referencing
Stuarts bar
admission status;
(5) Decision and
Order from State
Bar of California
regarding Stuarts
bar status; (6)
Order Entering
Default and Order
Enrolling Inactive
Doc. No. 70
Jud. Brf.
p. 56
Doc. No. 131 in

district court
various
Filed by Judicial
DefendantsAppellees as
Doc. No. 131-3
in district court;
California
Coalition
objected at Doc.
No. 162; district
court did not
grant request for
judicial notice
and did not rely
on exhibits in
Order
dismissing case
(ER 6-12).
Jud.Brf.
p. 18-19;
53;
Bierer
Brf. 8, 9,
19, 20
entire memorandum
Same
Same as Doc. No. 131-3
in the district court:
1. Factual matter
court or on appeal
(Federal Rule of
Evidence 201).
Rule 30-1.7, 30-1.1(a)
(matter not admitted by
judicial notice thus not
notice on appeal.
regarding Stuarts
California bar
status; (7) Print of
Internet page
regarding Stuarts
Arizona Bar status;
page regarding
Stuarts Nevada bar
status; (9) pleading
from Supreme
Court of Nevada
regarding Stuarts
Nevada bar status;
(10) Print from
Internet regarding
Lexevia PCs
business entity
status.
Doc. Nos. 139Judicial
E SER
140 in district
220-235 Defendants
court;
Supplemental
Memo in support
of omnibus motion
to dismiss; notice
of joinder
entire memorandum
from district
court)memorandum
Table III
Doyne Supplemental Excerpts (DktEntry 64-2)
#
1
Excer
pt
Page
2
Description
3
Dist. Court
Disposition
A DSER Omnibus notice and Doc. No. 131 in

4-28
motion to dismiss
district court
memorandum
B DSER Declaration of
29-33 Stephen Lucas in
support of Omnibus
Motion to Dismiss
Doc. No. 131-2

in district court;
California
Coalition moved
to take early
discovery re:
Lucas
expert/percipient
testimony (Doc.
164); district
court denied but
conceded to
ignore
inappropriate
matter at Doc.
No. 165;
California
Coalition
objected and
moved to strike
at Doc. No. 166.
C DSER Request for Judicial Filed by Judicial
34-69 Notice in Support of Defendants(same Omnibus Motion to Appellees as
Doc. No. 131-3
Dismiss (and all
as
in district court;
Judici exhibits thereto).
Exhibits include (1) California
al
Coalition
Appel a declaration in
7
4
Ans
wr.
Brf.
Ref.
5
Objection Here
Violation of Circuit Rule 301.5 (copy of entire

memorandum from district
court)
1. The excerpt is
expert/opinion testimony
foundation; irrelevant to any
issue below or on appeal
(Circuit Rule 30-2);
2. Violation of Circuit Rule
30-1.7, 30-1.1(a) (not part of
record below). The
declaration was disregarded
by district court, but should
have been stricken (see AOB
34-36) and not part of record
below);
1. Factual matter submitted in

support a pleading motion;
lacks foundation; irrelevant to
any issue below or on appeal
lees
SER
184219)
support of arrest
warrant in People v.
Stuart; (2) an arrest
warrant in People v.
Stuart; (3) Print of
Internet page
purporting to be
incorporation
information for
California Coalition
for Families and
Children, PBC; (4)
Print of Internet
page referencing
Stuarts bar
admission status;
(5) Decision and
Order from State
Bar of California
regarding Stuarts
bar status; (6) Order
Entering Default
and Order Enrolling
Inactive regarding
Stuarts California
bar status; (7) Print
of Internet page
regarding Stuarts
Arizona Bar status;
page regarding
Stuarts Nevada bar
status; (9) pleading
from Supreme
Court of Nevada
regarding Stuarts
Nevada bar status;
(10) Print from
Internet regarding
Lexevia PCs
objected at Doc.
No. 162; district
court did not
grant request for
judicial notice
and did not rely
on exhibits in
Order
dismissing case
(ER 6-12).

noticeable in district court or
on appeal (Federal Rule of
Evidence 201).
30-1.7, 30-1.1(a) (matter not
admitted by judicial notice
thus not part of record
below);
4. Appellees failed to file
motion for judicial notice on
appeal.
business entity
status.
D DSER Doynes Motion
70-83 and memorandum
to dismiss first
amended complaint
E DSER Doynes Request
for Judicial Notice
84in support of motion
147
(simil to dismiss first
amended complaint;
ar to
exhibits consist of
Fritz
Supp. pleadings in
ER 2- California state
court matters
72)
including Stuart v.
Stuart; Stuart v.
Blanchet; Tadros v.
Doyne
Doc. No. 143,

143-1 in district
court.
Doc. Nos. 1433, 143-4, 143-5
in district court;
California
Coalition
objected in
opposition (Doc.
No. 161);
district court did
not grant request
for judicial
notice and did
not rely on
exhibits
Violation of Circuit Rule 301.5 (copy of entire

court)
Doyn 1. Factual matter submitted in
Brf. support a pleading motion;
p. 21 lacks foundation; irrelevant to
any issue below or on appeal
noticeable in district court or
on appeal (Federal Rule of
Evidence 201).
30-1.7, 30-1.1(a) (matter not
admitted by judicial notice
thus not part of record
below);
motion for judicial notice on
appeal.
Table IV
Federal Supplemental Excerpts (DktEntry No.65-2)
#
1
Excerpt
Page
2
Description
3
Dist. Court
Disposition
4
Answr.
Brf.
Ref.
A SER-F
4-10
Federals joinder
to Omnibus
Doc. No. 145 in

district court
B SER-F
11-32
Federals Request
for Judicial
Notice; exhibits A
(letter from Chubb
to Stuart); exhibit
B (Southern
Districts RICO
case statement)
Doc. No. 145-1 Fed.

in district court; Brf. p.
district court
11, 17
did not grant
request for
judicial notice
and did not rely
on exhibits
5
Objection Here
Violation of Circuit Rule
30-1.5 (copy of entire
court)
1. Factual matter submitted
in support a pleading
motion; lacks foundation;
irrelevant to any issue
below or on appeal (Circuit
Rule 30-2);
noticeable in district court
or on appeal (Federal Rule
of Evidence 201).
30-1.7, 30-1.1(a) (matter
not admitted by judicial
notice thus not part of
record below);
C SERF65-74
Federals
memorandum in
support of motion
to dismiss first
amended
complaint; joinder
Doc. Nos. 173,

184 in district
court;
10

motion for judicial notice
on appeal.
court)
Table V
Alliance Excerpts Vols. I and II (incl. ABC&K, Viviano) (DktEntry 95-3)
#
1
Excerpt
Page
2
Description
Supp.
ER 1
Supp.
ER 21
Supp.
ER 52
Memorandum of
Points and
Authorities in
Support of
Defendants
National Family
Justice Center
Alliances Motion
to Dismiss
Plaintiffs
Complaint
Memorandum of
Points and
Authorities in
Support of
Defendants
Sharon Blanchet
and Ashworth,
Blanchet,
Kristensen &
Kalemenkarians
Motion to Dismiss
Plaintiffs
Complaint
Memorandum of
Points and
Authorities in
Support of
Defendants Lori
Clark Viviano,
Law Offices of
Lori Clark
Vivianos Motion
3
Dist. Court
Disposition
4
Answr.
Brf.
Ref.
5
Objection Here
Doc. No. 52 in
district court

court)
Doc. No. 53 in
district court

court)
Doc. No. 54 in
district court

court)
11
to Dismiss
Plaintiffs
Complaint
D Supp. Notice of Joinder
ER 94 by Sharon
Blanchet and
Ashworth,
Blanchet,
Kristensen &
Kalemenkarian to
Omnibus Motion
to Dismiss
Plaintiffs First
Amended
Complaint; and
Supplemental
Brief
E Supp. Request for
ER 104- Judicial Notice in
114
Support of
Defendants
Sharon Blanchet
and Ashworth,
Blanchet,
Kristensen &
Kalemenkarians
Joinder to
Omnibus Motion
to Dismiss
Plaintiffs First
Amended
Complaint; and
Supplemental
Brief
Doc. No. 146 in

district court

court)
Doc. No. 146-1 Alliance 1. Factual matter submitted

in district court. Brf. p.
in support a pleading
The district
13-14
motion; lacks foundation;
court did not
irrelevant to any issue
grant request
below or on appeal (Circuit
for notice; the
Rule 30-2);
district court
did not rely on
matter in July
noticeable in district court
order
or on appeal (Federal Rule
dismissing case
of Evidence 201).
Rule 30-1.7, 30-1.1(a)
(matter not admitted by
judicial notice thus not part
of record below);
motion for judicial notice
on appeal.
12
Supp. Notice of Joinder

ER 115 by National
Family Justice
Center Alliance re
Motion to Dismiss
for Failure to
State a Claim and
Supplemental
Brief
G Supp. Notice of Joinder
ER 121 by Lori Clark
Viviano, Law
Offices of Lori
Clark Viviano re
Motion to Dismiss
for Failure to
State a Claim and
Supplemental
Brief
H Supp. Defendants Lori
ER 143 Clark Viviano and
Law Offices of
Lori Clark
Vivianos Reply
to Plaintiffs
Opposition to
Omnibus Motion
to Dismiss
Plaintiffs First
Amended
Complaint
Supp. Defendant
I
ER 150 National Family
Justice Center
Alliances Reply
to Plaintiffs
F
Doc. No. 147 in

district court
Rule 30-1.5 (copy of entire
court).
court)
Doc. No. 148 in

district court

court)
Doc. No. 175 in

district court

court)
Doc. No. 176 in

district court

court)
13
Opposition to
Omnibus Motion
to Dismiss
Plaintiffs First
Amended
Complaint
Supp. Defendants
ER 155 Sharon Blanchet
and Ashworth,
Blanchet,
Kristensen &
Kalemenkarians
Reply to
Plaintiffs
Opposition to
Omnibus Motion
to Dismiss
Plaintiffs First
Amended
Complaint
Doc. No. 177 in

district court
14

court)
Case No. 14-56140

v.
Exhibit B
Case:
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ID:9421305,
9348957,DktEntry:
DktEntry:123,
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Page451 of
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35
Case No. 14-56140

UNITED STATE COURT OF APPEALS
PBC, a Delaware public benefit corporation, COBERT C. STAURT, III
Plaintiffs-Appellants
v.
Defendants-Appellees

ANSWERING BRIEF OF DEFENDANTS-APPELLEES

Kyle Van Dyke
HURST & HURST
701 B Street, Suite 1700
San Diego, CA 92101
Tel.: (619) 236-0016
Fax.: (619) 238-8569
kvandyke@hurst-hurst.com
Attorneys for Defendants-Appellees Jeffrey Fritz and Jeffrey C. Fritz, APC
dba Basie & Fritz erroneously sued as Basie & Fritz, APC
Case:
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35
& Fritz constitute lawful conduct, those allegations do not plausibly establish an
entitlement to relief under Rule 8. The district courts order should be affirmed.
II.
STATEMENT OF THE CASE AND RELEVANT FACTS

Contrary to California Coalition and Stuarts assertion, this action has
nothing to do with an extended series of conflicts between California Coalition

and the San Diego Family Law Community. (Opening Brief, p.4.) Nor could it.
California Coalition did not come into existence until the very day before the
original complaint was filed in this case. (Doc. No. 1; Supp. ER 1.) This action
has been instigated by Stuart in retaliation for the poor outcome he experienced in
his underlying dissolution of marriage action, his criminal prosecution and
incarceration for sending his former wife a series of deeply offensive emails and
text messages, and his disbarment from the practice of law in California as a
consequence of his criminal conviction.
A.
Stuarts Dissolution Action

Lyndolyn D. Stuart (Lynn) and Stuart married in 1993. They have one
son. Lynn petitioned for divorce in San Diego Superior Court Case No. D504196
(the dissolution action). (Supp. ER 2-7.) Lynn came to be represented in the
dissolution action by Fritz and Basie & Fritz. (Supp. ER 8-14.)
Stuart fared poorly in the dissolution action. He was dogged throughout by
accusations of alcohol abuse. (Supp. ER 15-28.) He consistently failed to timely
3
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pay court-ordered child support for his then toddler son. (Supp. ER 1, 29-33.) Due
to his increasingly erratic behavior, Stuart was eventually permitted only
supervised visitation with his son. (Supp. ER 1, 24-25.)
For his repeated disobedience of the family courts processes and
procedures, Stuart was sanctioned several thousand dollars and eventually was
assessed a terminating sanction resulting in his responsive pleading being stricken.
(Supp. ER 34-42.) The dissolution action thus concluded with a
default/uncontested judgment against Stuart. Among other things, the Judgment
found Stuart: (1) to be in arrears on his child support obligation; (2) to have
breached his fiduciary duties; and (3) to be obligated to pay 80% of Lynns
attorneys fees to Basie & Fritz. (Supp. ER 43-49.)
B.
Stuarts Criminal Prosecution And Incarceration

Two months after judgment was entered in the dissolution action, Stuart
began sending Lynn a series of offensive emails and text messages. (ER 181-182;
Supp. ER 50-72.) A criminal Complaint was lodged against Stuart in San Diego
Superior Court Case No. M104094DV. (ER 181-182; Supp. ER 73-79.)
Following trial by jury, Stuart was convicted criminally of sending nearly two
dozen threatening and harassing messages to Lynn and was sentenced to 4.25 years
in custody with service of most of that time suspended conditionally. (ER 181192.)
4
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Following his initial period of incarceration, Stuart violated the conditional

terms of his suspended sentence. (ER 194-196.) He was therefore returned to
custody. (ER 196.)
C.
Stuart Is Disbarred In California And Is Suspended From Practice In

Arizona And Nevada
As a consequence of his criminal conviction, Stuart was disbarred in
California. (Supp. ER 80-91.) Stuart is similarly suspended from the practice of

law in both Arizona and Nevada. (Supp. ER 92-97.) Nevertheless, he alleges to be
licensed and admitted to practice law in California, Arizona, and Nevada. (ER
111.)
D.
California Coalition, Stuart, And Lexevia, PCs Complaint

California Coalition, Stuart and Lexevia, PC (Lexevia) filed the original
complaint asserting approximately 36 claims against 49 defendants purportedly

involved in San Diegos family law community, including judges, lawyers, law
firms, psychologists, social workers, and various state and municipal entities.
(Supp. ER 99.) The district court sealed the complaint because it contained the
home addresses of several judges. (Supp. ER 99.)
The complaint totaled 175 pages, with an additional 1156 pages in exhibits
and numerous acronyms of California Coalition, Stuart, and Lexevias invention.
(Supp. ER 99.) Specific factual allegations as to defendants challenged conduct
5
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Appeal No. 14-56140

IN THE
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC
a Delaware public benefit corporation, COLBERN C. STUART, III,
Plaintiffs-Appellants,
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et. al.,
Defendants-Appellees.
Appeal from the United States District Court

for the Southern District of California
Case No. 13-CV-1944-CAB-BLM
JOINT ANSWERING BRIEF OF JUDICIAL DEFENDANTSAPPELLEES
James B. Gilpin, Bar No. 151466

Matthew L. Green, Bar No. 227904
BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
Attorneys for Judicial DefendantsAppellees SUPERIOR COURT OF

CALIFORNIA, COUNTY OF SAN
DIEGO, et. al.
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Stuart avers that Dr. Doyne caused Stuart to lose shared custody of his son
and for sole custody to be awarded to Ms. Stuart. (ER 265, 817(F).) Stuart
makes numerous other accusations against Dr. Doyne and alleges that Judges
Wohlfeil and Schall did not properly discharge their oversight responsibilities.
(ER 266-71, 816-17, 821, 822-30, 838.) Based on the same purported conduct,
Stuart also alleges supervisory failures by the Honorable Lorna A. Alksne, the
Supervising Family Court judge at the time, the Honorable Robert J. Trentacosta,
the former Presiding Judge of the Superior Court, Michael Roddy, the Executive
Officer of the Superior Court, and the Superior Court itself. (ER 111-12, 9-10;
ER 113, 19; ER 276, 873.)
B.
Stuarts Criminal Proceeding People v. Stuart
This action also stems from the criminal prosecution of Stuart in the matter
of People of the State of California v. Stuart, Superior Court of California, County
of San Diego, Case No. M104094DV (People v. Stuart). In March 2010, Stuart
was charged with multiple violations of California Penal Code section 653m(a) and
(b),2 as well as one count of stalking under California Penal Code section 646.9(a),
based on conduct directed at Ms. Stuart. (ER 181, 373.) Citing to Stuarts
Subdivision (a) generally prohibits the harassment of others by telephone or

e-mail with obscene language or threats to inflict injury, while subdivision (b)
generally prohibits a person from harassing others with repeated telephone calls or
e-mails.
-6-
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ongoing obscene and threatening messages, an arrest warrant was requested by

the San Diego City Attorneys Office, which was granted on April 14, 2010. (SER
68, 70.)
According to Stuart, the Assistant City Attorney prosecuting the case, Emily
Garson, conspired with her boss, San Diego City Attorney Jan Goldsmith, and
his spouse, the Honorable Christine K. Goldsmith, Judge of the Superior Court
(Ret.), in initiating criminal proceedings and obtaining the arrest warrant against
Stuart. (ER 181, 373; ER 183, 381; ER 204, 486-89.) Stuart also claims
that Judge Goldsmiths purported involvement with People v. Stuart, by virtue of
her marriage to Jan Goldsmith, was with the knowledge and support of Judges
Schall and Wohlfeil. (ER 183, 382.)
The Honorable Michael S. Groch, also a Superior Court judge, was assigned
as the trial judge in People v. Stuart. (ER 187, 402.) Stuart was ultimately
convicted of multiple violations of California Penal Code section 653m and
sentenced by Judge Groch in March 2011. (ER 190, 416-17.) After serving
approximately 90 days in jail, Stuart was conditionally released from custody in
May 2011.
(ER 191, 421-22.)
As a result of violating the terms of his
suspended sentence, however, Stuart was arrested in April 2012, and returned to
jail until May 2013. (ER 194-95, 433, 439.) Stuart also alleges that Judge
Groch issued multiple domestic violence restraining orders prohibiting any contact
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3.
The Claims Against Judicial Defendants In Count 3, Which Relate To

People v. Stuart, Also Fail To State Sufficient Facts.
Count 3 of the FAC includes claims against Judicial Defendants, particularly

Judges Groch and Goldsmith, under section 1983 for malicious prosecution in
connection with People v. Stuart. The Supreme Court has recognized that [o]ne
element that must be alleged and proved in a malicious prosecution action is
termination of the prior criminal proceeding in favor of the accused. Heck v.
Humphrey, 512 U.S. 477, 484 (1994); see also Awabdy v. City of Adelanto, 368
F.3d 1062, 1068 (9th Cir. 2004). Given Stuart was convicted in his criminal
proceeding, (ER 181-82, 373-74; ER 190, 415-17; SER 198, 200), the FAC
does not and cannot satisfy the innocence element for a 1983 claim for malicious
prosecution.
4.
The Claims In Count 3 Against Judge Groch Are Also Barred By The
Rooker-Feldman Doctrine.
Under the Rooker-Feldman doctrine, a federal district court lacks subject

matter jurisdiction to hear an appeal from a state court judgment. Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also Dist. of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415 (1923). Rooker-Feldman is a powerful
doctrine that prevents federal courts from second-guessing state court decisions by
barring the lower federal courts from hearing de facto appeals from state-court
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and the removal of the home addresses impacted Appellants access to the courts,
or the outcome of this case.
The only justification for including judges home addresses ever offered by
Appellants is that the addresses were necessary to establish venue under 28 U.S.C.
1391(b). (See SER 145:5-8; SER 146:11-13.) Not only did the complaint only
include the home addresses of certain judicial officers, as well as the CJPs
Chairperson, (Compl. 11, 17, 19, 22-23, 29), but all that need be alleged to
establish venue based on the residency of a defendant is that the defendant resides
in a particular judicial district. 28 U.S.C. 1391(b)(1). The district courts
dismissal of Count 4 was therefore appropriate.18
6.
The Claims For Supervisory Liability In Count 6 Are Devoid Of

Sufficient Facts.
Count 6 of the FAC asserts section 1983 claims under the theory of
supervisor liability against Judges Trentacosta, Alksne, and Jahr, Chief Justice
Cantil-Sakauye, and Mr. Roddy. (ER 237-41, 666-84; ER 242-45, 690-712.)
A supervisor is not liable under section 1983 unless he or she was personally
involved in the constitutional deprivation, or his or her conduct caused the
constitutional violation. Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989).
For the same reasons, the district courts denial of Stuarts ex parte
application for leave to file and/or supplement motion for harassment restraining
order was proper. (ER 67-68, 358-77; AOB 51.)
18
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Docket No. 14-56140

In the

For the
NINTH CIRCUIT
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.
vs.
APPEAL FROM JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
CASE NO. 13-CV-01944-CAB-JLB
HON. CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
NOTICE OF PARTIAL JOINDER OF DEFENDANTS/APPELLEES
SHARON BLANCHET/ASHWORTH BLANCHET CHRISTENSON &
KALEMKIARIAN, LORI CLARK VIVIANO/LAW OFFICE OF LORI
CLARK VIVIANO AND NATIONAL FAMILY JUSTICE CENTER
ALLIANCE TO ANSWERING BRIEF OF JUDICIAL
DEFENDANTS/APPELLEES
Charles R. Grebing, Esq., California State Bar No. 47927
Andrew A. Servais, Esq., California State Bar No. 239891
Dwayne H .Stein, Esq. California State Bar No. 261841
WINGERT GREBING BRUBAKER & JUSKIE LLP

ONE AMERICA PLAZA, SUITE 1200, 600 WEST BROADWAY
SAN DIEGO, CA 92101
(619) 232-8151; FAX (619) 232-4665
Attorneys for Defendants/Appellees Sharon Blanchet/ABC&K/Lori Clark
Viviano/Law office of Viviano & National Family Justice Center Alliance
{00667109.DOCX}
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Defendants-Appellees Sharon Blanchet, Ashworth Blanchet Christenson &

Kalemkiarian, Lori Clark Viviano, Law Office of Lori Clark Viviano and National
Family Justice Center Alliance respectfully submit a partial joinder in the Joint
Answering Brief of Judicial Defendants-Appellees, Docket number 51, filed on
December 19, 2014. Defendants-Appellees join in Arguments I, II issue nos. (1)
through (4); III(A) through III.(C), IV(A) through IV(C), V, VI, VII(A) and
VIII. Defendants-Appellees decline to join in Arguments II issue no. (4), III(D),
VII(B) and (C).
Additionally, Defendants-Appellees will concurrently file their own
Answering Briefs expanding on arguments unique to these Defendants-Appellees.
Respectfully submitted,
Dated: December 19, 2014 WINGERT GREBING BRUBAKER & JUSKIE LLP
By: s/ Charles R. Grebing_______________
CHARLES R. GREBING
cgrebing@wingertlaw.com
ANDREW A. SERVAIS
aservais@wingertlaw.com
DWAYNE H. STEIN
dstein@wingertlaw.com
Attorneys for Defendants/Appellees
SHARON BLANCHET/ASHWORTH BLANCHET
CHRISTENSON & KALEMKIARIAN, LORI
CLARK VIVIANO/LAW OFFICE OF LORI
CLARK VIVIANO and NATIONAL FAMILY
JUSTICE CENTER ALLIANCE
{00667109.DOCX}
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C.A. No. 14-56140

___________________________________________________________
PBC, a Delaware public benefit corporation, and COLBERN C. STUART, III,
Plaintiffs/Appellants,
v.
Defendants/Appellees.
____________________________________________________________
On Appeal from the United States District Court
Honorable Cathy Ann Bencivengo
__________________________________________________________________
APPELLEES COUNTY OF SAN DIEGO AND WILLIAM GORES
ANSWERING BRIEF
__________________________________________________________________
THOMAS E. MONTGOMERY, County Counsel
County of San Diego
RICKY R. SANCHEZ, Senior Deputy (SBN 107559)
1600 Pacific Highway, Room 355
San Diego, California 92101-2469
Telephone: (619) 531-4874
Attorneys for Appellees County of San Diego,
and William D. Gore
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INTRODUCTION
Pursuant to rule 28(i) of the Rules of Appellate Procedure, County Appellees
adopt by reference the introduction in the Joint Answering Brief of Judicial
Defendants-Appellees filed in this appeal as document 51-1 on December 19,
2014, commencing at page 1 thereof as it relates to the County Appellees.
ISSUES PRESENTED
Pursuant to rule 28(i) of the Rules of Appellate Procedure County Appellees
adopt by reference the statement of issues presented and overview in the
Answering Brief of Defendants-Appellees Jeffrey Fritz and Jeffrey C. Fritz, APC
filed in this appeal on December 15, 2014, as document No.45-1, commencing at
page 1 thereof as it relates to the County Appellees alleged participation in alleged
conspiratorial, criminal, and wrongful conduct.
adopt by reference the statement of issues 1, 3 and 4 in the Joint Answering Brief
of Judicial Defendants-Appellees filed in this appeal as document 51-1 on
December 19, 2014, commencing at page 4 thereof and as it relates to the County
Appellees.
STATEMENT OF THE CASE
adopt by reference the statement of case and relevant facts in the Answering Brief
of Defendants-Appellees Jeffrey Fritz and Jeffrey C. Fritz, APC filed in this appeal
on December 15, 2014, as document No.45-1, commencing at page 3 thereof.
adopt by reference the statement of facts at pages 5-11 and the procedural history
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at pages 11-16 in the Joint Answering Brief of Judicial Defendants-Appellees filed

in this appeal as document 51-1 on December 19, 2014.
This multi-claim lawsuit against the San Diego Superior Court, its judges,
family law practitioners, counselors, the County Appellees and numerous others,
appears to have grown out of Plaintiff-Appellant Stuarts disgruntlement with the
California family law dissolution process. One discernable factual event on which
the claims are premised appears to be Plaintiff-Appellant Stuarts removal from a
San Diego County Bar Association seminar on April 15, 2010, by two private
security officers. (First Amended Complaint FAC 132.) Appellants
conclusorily alleged without supporting facts in their first amended complaint that
Stuarts removal from the seminar was the result of a conspiracy among the
numerous defendants. Other non-fact based illusionary allegations specific to the
County Appellees are that these Appellees make policies for the States judiciary,
operate the state courts, and have supervisorial authority over some private
corporation. (FAC 716, 745, 873, 875.) Plaintiffs-Appellants first amended
complaint did not in compliance with Federal Rules of Civil Procedure, rule 8 set
forth a short and plain statement of facts showing a plausible claim against the
County Appellees.
In the District Court proceedings below the County Appellees joined in the
omnibus motion to dismiss the first amended complaint (Doc. 141-2) and also filed
a supplemental memorandum of points and authorities to the omnibus motion
addressing the bar of the statute of limitations, the absence of a government
damages claim form that would have been required for plaintiffs to pursue tort
claims, the failure to state any claim, and the corporation California Coalition for
Families and Childrens lack of standing to sue relative to claim arising out of
Stuarts removal from the San Diego County Bar Association seminar on April 15,
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2010, because the corporation did not exist on that date. (Doc. 141-1.) The
omnibus motion was granted by the court and is the subject of this appeal.
STANDARD OF REVIEW
adopt by reference the standard of review in the Answering Brief of DefendantsAppellees Jeffrey Fritz and Jeffrey C. Fritz, APC filed in this appeal on December
15, 2014, as document No.45-1, at page 13 thereof.
adopt by reference the standard of review in the Joint Answering Brief of Judicial
Defendants-Appellees filed in this appeal as document 51-1 on December 19,
2014, commencing at page 16 thereof.
SUMMARY OF ARGUMENT
adopt by reference the summary of argument in the Answering Brief of
Defendants-Appellees Jeffrey Fritz and Jeffrey C. Fritz, APC filed in this appeal
on December 15, 2014, as document No.45-1, at page 14 thereof; the issues
identified also apply to the County Appellees.
adopt by reference the summary of argument in the Joint Answering Brief of
Judicial Defendants-Appellees filed in this appeal as document 51-1 on December
19, 2014, commencing at page 17 thereof.
ARGUMENT
adopt by reference Argument A, C1-6, C8-13, and D in the Joint Answering Brief
of Judicial Defendants-Appellees filed in this appeal as document 51-1 on
December 19, 2014, commencing at page 20 thereof.
3
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Appeal No. 14-56140

81,7('67$7(6&28572)$33($/6
)257+(1,17+&,5&8,7
__________________________________________________________________
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et. al.,
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
Case No. 13-CV-1944-CAB-JLB
The Honorable Cathy Ann Bencivengo, United States District Judge
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
127,&(2)-2,1'(52)'()(1'$176$33(//((6$0(5,&$1
&2//(*(2))25(16,&(;$0,1(56,167,787($1'52%(57
2%/2&.72$16:(5,1*%5,()2)-8',&,$/
'()(1'$176$33(//((6
__________________________________________________________________
Gregory P. Goonan, Esq., California State Bar No. 119821
The Affinity Law Group
5755 Oberlin Drive, Suite 301
San Diego, CA 92121
Phone: 858-750-1615 | Fax: 619-243-0088
Thomas Schafbuch, Esq., Missouri State Bar No. 65159
American College of Forensic Examiners Institute
2750 E Sunshine St.
Springfield, MO, 65804
Phone: 417-881-3818
Attorneys for American College of Forensic Examiners Institute and Robert
OBlock
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Defendants-Appellees American College of Forensic Examiners Institute

and Robert OBlock (collectively ACFEI) respectfully join in the Joint
Answering Brief of the Judicial Defendants-Appellees, Docket Number 51, filed
on December 19, 2014.
Specifically, ACFEI joins in and adopt by this reference the following
sections of the Joint Answering Brief of the Judicial Defendants-Appellees: (i)
Table of Contents; (ii) Table of Authorities; (iii) Introduction; (iv) Statement of
Issues (Issue Nos. 1, 3 and 4); (v) Statement of Facts; (vi) Procedural History; (vii)
Standard of Review; (viii) Summary of Argument; (ix) Argument (Sections A, C
and D); and (x) Conclusion.
Additionally, ACFEI notes that neither defendant-appellee the American
College of Forensic Examiners Institute nor defendant-appellee Robert OBlock
are even mentioned in Appellants appeal to this Court. Nor were any alleged
injuries or damages to Plaintiff-Appellant from any conduct of ACFEI coherently
alleged or identified in the complaint at issue. Since Plaintiff-Appellant has failed
and neglected to even mention either defendant-appellant the American College of
Forensic Examiners Institute or defendant-appellant Robert OBlock in their
appellate brief, ACFEI cannot prepare any additional arguments on this appeal.
/././
/././
/././
/././
/././
/././
/././
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Appellate Case No.:
14-56140

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC, a
Delaware public benefit corporation, COLBERN C. STUART, III
Plaintiff and Appellant,
v.
SAN DIEGO COUNTY BAR ASSOCIATION, ET AL.
Defendants and Respondents.
Appeal from the United States District Court for the Southern District of
California in case no. 03-CV-1944 CAB (JLB)
ANSWERING BRIEF OF DEFENDANT-APPELLEE

MARILYN BIERER
Heather L. Rosing, Bar No. 183986
Daniel S. Agle, Bar No. 251090
Kyle T. Overs, Bar No. 286158
KLINEDINST PC
501 West Broadway, Suite 600
(619) 239-8131/FAX (619) 238-8707
hrosing@klinedinstlaw.com
dagle@klinedinstlaw.com
kovers@klinedinstlaw.com
Attorneys for Defendant MARILYN BIERER d.b.a. BIERER AND
ASSOCIATES, erroneously sued as BIERER AND ASSOCIATES, a
California Professional Corporation
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317, 1007-1008.) Based on the FAC, it is abundantly clear that

Stuart was dissatisfied with the result of the Stuart Dissolution.
2.
Stuarts Criminal Proceeding and The Stuart

Assault.
This action also appears to stem for the criminal prosecution of

Stuart in the matter of People of the State of California v. Stuart,
Superior Court of California, County of San Diego, Case No.
M104094DV (People v. Stuart). In March 2010, Stuart was
charged with multiple violations of California Penal Code section
653m(a) and (b), as well as one count of stalking under California
Penal Code section 646.9(a), based on conduct directed at Ms. Stuart.
(ER 181-182, 373.) Citing to Stuarts ongoing obscene and
threatening messages, an arrest warrant was requested by the San
Diego City Attorneys Office and granted on April 14, 2010. (SER
189-190, 192.)
On April 15, 2010, Stuart was arrested at a family law seminar
hosted by the San Diego County Bar Association pursuant to that
outstanding arrest warrant. (ER 140, 131-132.) Following his
arrest, Stuart was convicted on multiple violations contained within
the arrest warrant and was sentenced on March 1, 2011. (ER 190,
4
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415-417.) Based on this conviction, Stuart was disbarred by the State

of California on July 9, 2013 for committing crimes of moral
turpitude. (SER 197-198, 200-205.)
Notably, Bierer did not speak at the April 15, 2010 event, nor
was she involved in its planning. There is not a single factual
allegation in the FAC stating otherwise. Despite this fact, the FAC
makes the conclusory allegation that Bierer was somehow part of the
coordination of Stuarts arrest (or as the FAC refers to it, the Stuart
Assault). (ER 143-144, 152.)
B.
Procedural History
1.
The motions to dismiss the complaint.
Bierer herein incorporates by reference section IV(A) of the

judicial defendants joint answering brief (The Motions to Dismiss
the Complaint), and adds the following:
Bierers motion to dismiss the initial complaint was filed on
December 3, 2013. (Doc. No. 49.) The grounds for Bierers motion
to dismiss included Plaintiffs failure to comply with Federal Rule of
Civil Procedure 8, failure to state a claim against Bierer due to a
complete lack of factual allegations, the applicable statutes of
limitations, and lack of standing.
5
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3.
Plaintiffs claim relating to the Lanham Act fails to

state a claim upon which relief can be granted.
To have standing to assert a false advertising claim, a plaintiff

must compete with a defendant in the same marketplace. Halicki v.
United Artists Communications, Inc., 812 F.2d 1213, 1214 (9th Cir.
1987). According to the FAC, Bierer violated the Lanham Act by
using words, terms, names, symbols, and devices that were false and
misleading. (ER 284-292, 904-914.) Yet there are no factual
allegations against Bierer as to what words, terms, names, symbols, or
devices were used by Bierer and how they were false or misleading.
(Ibid.) There are also no factual allegations as to how Plaintiffs
compete in the same marketplace as Bierer. (Ibid.) This is not
surprising given that Plaintiffs do not compete in the same family
law industry as Bierer. (SER 197-198, 200-205, 210, 212, 214-217
(showing that Stuart is disbarred not only in California, but also
Arizona and Nevada); See also Doc. No. 90-7, pp. 47-48, Exhibit 24,
(stating that Stuart practices intellectual property law).) Similarly, it
is impossible that Plaintiff California Coalition for Families and
Children (CCFC) ever competed in the family law industry with
Bierer as CCFC was not formed until one day before this action was
15
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filed. (SER 194-195.) As Plaintiffs merely rely on legal conclusions

and a recitation of elements, with no factual allegations, dismissal of
Plaintiffs claim relating to the Lanham Act against Bierer was
appropriate.
4.
Plaintiffs fail to allege any RICO violations by

Bierer.
Bierer herein incorporates by reference section VII(C)(12) of

the judicial defendants answering brief (The FAC Does Not Allege
Facts Sufficient To State A Civil RICO Claim Against The Judicial
Defendants), and adds the following:
As another grounds for dismissal, the FAC fails to allege any
RICO violations by Bierer. The FAC appears to bring nine claims
against Bierer for alleged RICO violations under sections 18 U.S.C.
1962(c) and 18 U.S.C. 1962(d), which all seem to rise out of the
Stuart Assault. 18 U.S.C. 1962(c) makes it unlawful for a person
associated with a RICO enterprise that is engaged in, or the activities
which affect, interstate or foreign commerce, to conduct or participate
. . . in the conduct of such enterprises affairs through a pattern of
racketeering activity. 18 U.S.C. 1962(d) makes it unlawful to
conspire to commit a violation of 18 U.S.C. 1962(c). Further, civil
16
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14-56140
IN THE UNITED STATES COURT OF APPEALS
CALIFORNIA COALITION FOR

FAMILIES AND CHILDREN; COLBERN
C. STUART, III,
v.
SAN DIEGO COUNTY BAR
ASSOCIATION; et al.,
No. 3:13-cv-01944-CAB-JLB
The Honorable Cathy Ann Bencivengo, Judge
ANSWERING BRIEF OF COMMISSION DEFENDANTS
KAMALA D. HARRIS
Attorney General of California
KRISTIN G. HOGUE
Senior Assistant Attorney General
RICHARD F. WOLFE
Supervising Deputy Attorney General
State Bar No. 85346
110 West A Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2482
Fax: (619) 645-2012
Email: Richard.Wolfe@doj.ca.gov
Attorneys for Defendants-Appellees
Commission on Judicial Performance,
Lawrence J. Simi, and Brad Battson
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STATEMENT OF ISSUES
There are two issues. The first is whether the district court properly
dismissed with prejudice Stuarts claims against the Commission, and
against Simi and Battson to the extent they are sued for money damages in
their official capacities, based on sovereign immunity under the Eleventh
Amendment.
The second is whether the district court properly dismissed with
prejudice Stuarts state law claims against Simi and Battson for conduct in
their official duties, based on absolute immunity under Cal. Const. art. VI,
18(h).
Both decisions are correct. The Commission is a state agency created
by Californias Constitution. Simi is the Commissions former chairperson,
and Battson is one of its attorneys. Sovereign immunity under the Eleventh
Amendment is properly raised by motion to dismiss. The Commissions
role in Californias government is well defined in Californias Constitution
and statutes. And the district courts have repeatedly held that the
Commission and its members and employees sued for damages in their
official capacities are immune under the Eleventh Amendment. In addition,
Stuart does not dispute that Simi and Battson have absolute immunity under
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any other basis of jurisdiction may override the Eleventh Amendment), and
Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1133-1134 (9th Cir.
2006) (Thus, we hold that 28 U.S.C. 1367 does not abrogate state
sovereign immunity for supplemental State law claims.).
Sovereign immunity also bars claims against a state agency for
declaratory and injunctive relief. Unless a State has waived its Eleventh
Amendment immunity or Congress has overridden it, however, a State
cannot be sued directly in its own name regardless of the relief sought.
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). See also, Montana v.
Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1195 (9th Cir. 2005)
(claim for injunctive relief barred).
IV.
THE COMMISSION ON JUDICIAL PERFORMANCE IS A STATE

AGENCY ENTITLED TO IMMUNITY UNDER THE ELEVENTH
AMENDMENT.
The California Constitution establishes the Commission.
The Commission on Judicial Performance consists of
one judge of a court of appeal and two judges of
superior courts, each appointed by the Supreme Court;
two members of the State Bar of California who have
practiced law in this State for 10 years, each appointed
by the Governor; and six citizens who are not judges,
retired judges, or members of the State Bar of
California, two of whom shall be appointed by the
Governor, two by the Senate Committee on Rules, and
two by the Speaker of the Assembly. Except as
provided in subdivisions (b) and (c), all terms are for
8
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four years. No member shall serve more than two fouryear terms, or for more than a total of 10 years if
appointed to fill a vacancy.
Cal. Const. art. VI, 8(a).
The Commission plays an important role in Californias judicial
system, described in Californias Constitution as follows.
Except as provided in subdivision (f), the Commission
on Judicial Performance may (1) retire a judge for
disability that seriously interferes with the performance
of the judge's duties and is or is likely to become
permanent, or (2) censure a judge or former judge or
remove a judge for action occurring not more than 6
years prior to the commencement of the judge's current
term or of the former judges last term that constitutes
willful misconduct in office, persistent failure or
inability to perform the judge's duties, habitual
intemperance in the use of intoxicants or drugs, or
conduct prejudicial to the administration of justice that
brings the judicial office into disrepute, or (3) publicly
or privately admonish a judge or former judge found to
have engaged in an improper action or dereliction of
duty. The commission may also bar a former judge
who has been censured from receiving an assignment,
appointment, or reference of work from any California
state court. Upon petition by the judge or former judge,
the Supreme Court may, in its discretion, grant review
of a determination by the commission to retire, remove,
censure, admonish, or disqualify pursuant to subdivision
(b) a judge or former judge. When the Supreme Court
reviews a determination of the commission, it may
make an independent review of the record. If the
Supreme Court has not acted within 120 days after
granting the petition, the decision of the commission
shall be final.
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Cal. Const. art. VI, 18(d).2

The Commissions duties are not limited to the above. The
Commission may also investigate retired judges and order termination of
senior status. Cal. Govt Code 68701.5. It has discretionary jurisdiction
with regard to the oversight and discipline of subordinate judicial officers.
Cal. Const. art. VI, 18.1. The Commission processes state judges
disability retirement applications, under Cal. Govt Code 75060 through
75064 and 75560 through 75564. The Commission enforces restrictions on
state judges receipt of gifts as set forth in Cal. Code Civ. P. 170.9. And
the Commission has independent rule-making authority under Cal. Const.
art. VI, 18(i).
Plaintiffs argue the issue of state-funding was unsolved by the district
court. However, Californias Constitution makes clear that the Commission
is a state-funded agency. The budget of the commission shall be separate
from the budget of any other state agency or court. Cal. Const. art. VI,
Cal. Const. art. VI, 18(f) provides: A determination by the Commission

on Judicial Performance to admonish or censure, a judge or former judge of
the Supreme Court or remove or retire a judge of the Supreme Court shall be
reviewed by a tribunal of 7 court of appeal judges selected by lot.
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18(l). Moreover, the Commissions authority to expend state funds is set

forth in Cal. Govt Code 68702, which provides as follows.
The commission may employ such officers, assistants,
and other employees as it deems necessary for the
performance of the duties and exercise of the powers
conferred upon the commission and upon the masters,
may arrange for and compensate medical and other
experts and reporters, may arrange for attendance of
witnesses, including witnesses not subject to subpena,
and may pay from funds available to it all expenses
reasonably necessary for effectuating the purposes of
Section 8 and Section 18 of Article VI of the
Constitution, whether or not specifically enumerated
herein. The Attorney General shall, if requested by the
commission, act as its counsel generally or in any
particular investigation or proceeding. The commission
may employ special counsel from time to time when it
deems such employment necessary.
In addition, Each member of the commission and each master shall
be allowed his necessary expenses for travel, board, and lodging incurred in
the performance of his duties. Cal. Govt Code 68703.
This Court has not addressed the issue of the Commissions Eleventh
Amendment immunity. However, the district courts have consistently held
that the Commission is a state agency entitled to immunity. In Ricotta v.
California, 4 F. Supp. 2d 961 (S.D. Cal. 1998), the court held that a suit
against a state agency, in this case the Commission on Judicial Performance
is considered to be a suit against the state and is also barred by the Eleventh
11
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Among other things, section 18(h) makes clear that commission staff
and employees cannot be sued for any act undertaken in the course of their
official duties. Recorder v. Comm'n on Judicial Performance, 72 Cal. App.
4th 258, 267 (1999). Plaintiffs appear to concede that 18(h) provides for
absolute immunity for conduct done in the course of official duties.
Plaintiffs simply argue they alleged conduct outside the course of official
duties. However, they fail to identify any such allegations. See AJOB at
34.
CONCLUSION
This Court should affirm the district courts December 23, 2013, order
dismissing Stuarts claims against the Commission and against Simi and
Battson to the extent they are sued for damages in their official capacities.
The Commission on Judicial Performance is a state agency created by
Californias Constitution. One need look no further than Californias
Constitution and statutes to see that it performs important governmental
functions in the states judicial system. The district courts have consistently
held that the Commission and it members and employees acting in their
official capacities are entitled to immunity under the Eleventh Amendment.
And Plaintiffs do not dispute that members and employees of the
17
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ADDENDUM OF PRIMARY AUTHORITY
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Attorneys for Defendants William Hargreaves; Hargreaves & Taylor LLP
(erroneously sued as Hargreaves & Taylor, PC); Meredith Levin; AllenLevin, Inc. (formerly known as Allen-Slattery, Inc.); Janis Stocks; Stocks &
Colburn (erroneously sued as Stocks & Colburn, a professional
corporation); Carole Baldwin; Laury Baldwin; and Baldwin & Baldwin
(collectively, the Lawyer Appellees)
Case:
Case:
14-56140,
14-56140,
02/13/2015,
12/22/2014,
ID:ID:
9421305,
9358863,
DktEntry:
DktEntry:
123,
68,Page
Page105
10 of
of36
127
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)ULW]DQG-HIIUH\&)ULW]$3&GED%DLVH )ULW]
Case:
14-56140,
02/13/2015,
ID: ID:
9421305,
DktEntry:
123,
Page
106
of4127
Case:
14-56140,
12/22/2014,
9358883,
DktEntry:
69,
Page
1 of
No. 14-56140

============================
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC,
===========================
On Appeal from the United States District Court for the Southern
District of California, Case. No. 03-cv-1944 CAB (JLB)
The Honorable Cathy Ann Bencivengo, District Judge
===========================
NOTICE OF JOINDER OF DEFENDANTSAPPELLEES TERRY CHUCAS and SUSAN

GRIFFIN TO JOINT ANSWERING BRIEF OF
JUDICIAL DEFENDANTS-APPELLEES
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO, et al.
============================
Gina E. Och (SBN 170520)
MURCHISON & CUMMING, LLP
801 South Grand Avenue, 9th Floor

Los Angeles, California 90017-4613
Telephone: (213) 623-7400
Facsimile: (213) 623-6336
E-Mail:
goch@murchisonlaw.com
Attorneys for Defendants-Appellees,
TERRY CHUCAS and SUSAN GRIFFIN
Case:
Case:
14-56140,
14-56140,
02/13/2015,
12/22/2014,
ID: ID:
9421305,
9358883,
DktEntry:
DktEntry:
123,
69,
Page
Page
107
2 of
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Pursuant to Federal Rule of Appellate Procedure 28(i),

Defendants-Appellees TERRY CHUCAS and SUSAN GRIFFIN
respectfully join in and adopt by reference the Joint Answering Brief
(Docket Entry No. 51), filed by Judicial Defendants-Appellees,
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN
DIEGO, et al., on December 19, 2014.
Specifically, Defendants-Appellees TERRY CHUCAS and
SUSAN GRIFFIN join in and adopt by reference the following
Sections of the Judicial Defendants-Appellees' Joint Answering Brief:
I Introduction, II Statement of Issues (Issue Nos. (1), (3) and (4)); III
Statement of Facts (Sections (A) through (C)), IV Procedural History,
V Standard of Review, VI Summary of Argument, VII Argument
(Sections (A), (C), and (D)), and VIII Conclusion.
Finally, Plaintiffs-Appellants' Joint Opening Brief (Docket
Entry No. 43) fails and neglects to mention or make reference to
either Mr. Chucas or Ms. Griffin, make any argument specific to
either Mr. Chucas or Ms. Griffin, or address any ground raised by
either Mr. Chucas or Ms. Griffin in the proceedings below and/or in
Case:
Case:
14-56140,
14-56140,
02/13/2015,
12/22/2014,
ID: ID:
9421305,
9358941,
DktEntry:
DktEntry:
123,
71,
Page
Page
108
1 of
of8127
Case No. 14-56140

IN THE UNITED STATES COURT OF APPEALS
_______________________________________________
PBC, a Delaware public benefit corporation, COLBERN C. STUART, III
Appellants/Plaintiffs,
vs.
Appellees/Defendants
________________________________________________
For the Southern District of California
_________________________________________________
ANSWERING BRIEF OF APPELLEES
LORI LOVE; LARRY CORRIGAN; LOVE & ALVAREZ PSYCHOLOGY,
INC.
___________________________________________________
Joshua D. Blitt (State Bar No. 264303)
James R. Rogers (State Bar No. 99102)
Keith E. Zwillinger (State Bar No. 99216)
LAW OFFICES OF JAMES R. ROGERS
125 S. Highway 101, Suite 101
Solana Beach, CA 92075
Telephone: 858-792-9900
Facsimile: 858-792-9509
Attorneys for Defendants/Appellees
LORI LOVE; LARRY CORRIGAN; LOVE & ALVAREZ PSYCHOLOGY, INC.
Case:
Case:
14-56140,
14-56140,
02/13/2015,
12/22/2014,
ID: ID:
9421305,
9358941,
DktEntry:
DktEntry:
123,
71,
Page
Page
109
5 of
of8127
I.
JOINDER PURSUANT TO FRAP 28(i)
Pursuant to Federal Rule of Appellate Procedure 28(i), Appellees Lori Love,
Larry Corrigan and Love & Alvarez Psychology, Inc. (Appellees), hereby join
the Joint Answering Brief of Judicial Defendants-Appellees filed on or about
December 22, 2014. Appellees hereby incorporate by reference the entire Joint
Answering Brief of Judicial Defendants-Appellees.
Respectfully submitted,
LAW OFFICES OF JAMES R. ROGERS
Dated: December 22, 2014
By:
______/s James R. Rogers____________

James R. Rogers, Esq.
Attorneys for Appellees
LORI LOVE; LARRY
CORRIGAN; LOVE &
ALVAREZ PSYCHOLOGY,
INC.
(1 of 207)
Case:
Case:14-56140,
14-56140,02/13/2015,
12/29/2014,ID:
ID:9421305,
9364429,DktEntry:
DktEntry:123,
95-1,
Page
Page
110
1 of
of 34
127
Docket No. 14-56140

In the

For the
NINTH CIRCUIT
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.
vs.
APPEAL FROM JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
CASE NO. 13-CV-01944-CAB-JLB
HON. CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
DEFENDANTS/APPELLEES SHARON BLANCHET, ASHWORTH
BLANCHET CHRISTENSON & KALEMKIARIAN, LORI CLARK
VIVIANO, LAW OFFICES OF LORI CLARK VIVIANO AND
NATIONAL FAMILY JUSTICE CENTER ALLIANCES
ANSWERING BRIEF
Charles R. Grebing, Esq., California State Bar No. 47927
Andrew A. Servais, Esq., California State Bar No. 239891
Dwayne H .Stein, Esq. California State Bar No. 261841
WINGERT GREBING BRUBAKER & JUSKIE LLP

ONE AMERICA PLAZA, SUITE 1200
600 WEST BROADWAY
SAN DIEGO, CA 92101
(619) 232-8151; FAX (619) 232-4665
Attorneys for Defendants/Appellees Sharon Blanchet, Ashworth Blanchet
Christenson & Kalemkiarian, Lori Clark Viviano, Law Offices Of Lori Clark
Viviano and National Family Justice Center Alliance
{00667420.DOCX}
(13 of 207)
Case:
Case:14-56140,
14-56140,02/13/2015,
12/29/2014,ID:
ID:9421305,
9364429,DktEntry:
DktEntry:123,
95-1,Page
Page111
13 of
of 127
34
defendants as participants in the family court system, there are no other allegations
in the FAC against VIVIANO.
3.
FAC Allegations against ALLIANCE
The allegations against ALLIANCE in the FAC, as far as can reasonably be

ascertained, are all based on ALLIANCEs representation of Stuart during his
divorce proceeding. The FAC alleges Alliance assists in drafting domestic
violence orders (ER 119-200 at 463), operates as legal advisors to victims (ER
284-288 at 907-908), and generally participates in the family court system (ER
297-301, 309-310 at 931, 938, and 975.)
D.
THE DISTRICT COURT DISMISSES THE ENTIRE FAC

WITH PREJUDICE
On February 26, 2014, the district court held a status hearing at which the
court requested the defendants join in an omnibus motion to dismiss comprising
arguments for dismissal that would apply to all defendants. Additionally, the
district court allowed each individual defendant to file a short supplemental brief
outlining any additional arguments for dismissal unique to that particular
defendant. (Supp. ER 92.)
On March 28, 2014, the Omnibus Motion to Dismiss was filed (Judicial
Defendants Supp. ER 162), to which ABC&K, VIVIANO, and ALLIANCE each
filed Joinders and Supplemental Briefs arguing several other reasons dismissal
with prejudice was proper. (Supp. ER 94-103, 115-120, and 121-134.) ABC&K
{00667420.DOCX}
(14 of 207)
Case:
Case:14-56140,
14-56140,02/13/2015,
12/29/2014,ID:
ID:9421305,
9364429,DktEntry:
DktEntry:123,
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Page112
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34
also filed a Request for Judicial Notice attaching the state-court Order granting
ABC&Ks anti-SLAPP Motion to Strike (Supp. ER 104-114.) Appellants filed one
lengthy Opposition attempting to address to all the Motions to Dismiss. (District
Court Docket No. 161.) ABC&K, VIVIANO, and ALLIANCE filed Reply Briefs
to address the opposition arguments which applied to the claims against them
individually. (Supp. ER 143-149, 150-154, and 155-161.)
On July 9, 2014, the district court dismissed the entire FAC with prejudice
solely on the arguments in the Omnibus Motion to Dismiss relating Rule 8.1 The
district court did not comment on any other basis for dismissal argued by ABC&K,
VIVIANO, and ALLIANCE or any other similarly situated defendants. (ER 4, 6.)
III. SUMMARY OF ARGUMENT
The district court was correct in dismissing Appellants FAC with prejudice
pursuant to Rule 8. ABC&K agrees with the arguments put forth by the Judicial
Defendants, and has joined their Answering Brief insofar as it addresses the Rule 8
issue. (Docket No. 52.)
Additionally, this Court is able to analyze the entire record in addressing this
appeal. The district courts dismissal with prejudice was correct based on the
The district court also addressed issues such as judicial immunity unique to
the Judicial Defendants and other public entity defendants. These issues are not
addressed here because they do not apply ABC&K, VIVIANO, ALLIANCE or the
other defendants who joined the Omnibus Motion to Dismiss.
{00667420.DOCX}
Case:
Case:
14-56140,
14-56140,
02/13/2015,
01/13/2015,
ID:ID:
9421305,
9379959,
DktEntry:
DktEntry:
123,
111,
Page
Page
113
1 of 5
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Appeal No. 14-56140

THE UNITED STATES COURT OF APPEALS
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, a Delaware
Public Benefit Corporation, and COLBERN C. STUART, an individual,
PLAINTIFFS-APPELLANTS,
v.
DEFENDANTS-APPELLEES.

Case No. 13-CV-1944 CAB (JLB)
The Honorable Cathy Ann Bencivengo, Presiding
NOTICE OF JOINDER OF
DEFENDANTS-APPELLEES CITY
OF SAN DIEGO, JAN GOLDSMITH
AND EMILY GARSON TO JOINT
ANSWERING BRIEF OF JUDICIAL
DEFENDANTS-APPELLEES
JAN I. GOLDSMITH, City Attorney
RAYNA A. STEPHAN, Deputy City Attorney
California State Bar No. 135001
Office of the City Attorney
1200 Third Avenue, Suite 1100
San Diego, California 92101-4178
Telephone: (619) 533-5800
Facsimile: (619) 533-5856
Attorneys for Defendants-Appellees City of San
Diego, Jan Goldsmith and Emily Garson
Case:
Case:
14-56140,
14-56140,
02/13/2015,
01/13/2015,
ID:ID:
9421305,
9379959,
DktEntry:
DktEntry:
123,
111,
Page
Page
114
2 of 5
127
JOINDER IN ANSWERING BRIEF OF JUDICIAL DEFENDANTSAPPELLEES

Pursuant to FRAP 28(i), Defendants-Appellees City of San Diego, Jan
Goldsmith and Emily Garson (collectively City Appellees) hereby join in and
adopt by reference the Joint Answering Brief of Judicial Defendants-Appellees
filed on December 19, 2014, by James B. Gilpin, Matthew L. Green, Best Best &
Krieger LLP (DktEntry No. 51-1), with the exception of the argument at VII E.
regarding sanctions, which issue does not apply to the City Appellees.
Dated: January 13, 2015
JAN I. GOLDSMITH, City Attorney

By /s/ Rayna A. Stephan
Rayna A. Stephan
Deputy City Attorney
Attorneys for Defendants-Appellees,
City of San Diego, Jan Goldsmith and
Emily Garson
Case:
Case:
14-56140,
14-56140,
02/13/2015,
01/19/2015,
ID:ID:
9421305,
9388309,
DktEntry:
DktEntry:
123,
114,
Page
Page
115
1 of 4
127
__________________14-56140_____________________
______________________________________
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC,
a Delaware public benefit corporation, COLBERN C. STUART, III
Plaintiff and Appellant,
v.
Defendants and Respondents.
Case Number 03-cv-1944-CAB (JLB)
ROBERT A. SIMON, Ph.D.S NOTICE IN JOINDER

IN JUDICIAL DEFENDANTS ANSWERING BRIEF
LEWIS BRISBOIS BISGAARD & SMITH LLP

Brian A. Rawers, SBN 123619
brian.rawers@lewisbrisbois.com
Telephone: 619.233.1006
Facsimile: 619.233.8627
Attorneys for Defendant/Appellee
ROBERT A. SIMON, Ph.D.
Case:
Case:
14-56140,
14-56140,
02/13/2015,
01/19/2015,
ID:ID:
9421305,
9388309,
DktEntry:
DktEntry:
123,
114,
Page
Page
116
2 of 4
127
JOINDER IN ANSWERING BRIEF OF JUDICIAL DEFENDANTS

Pursuant to FRAP 28(i), defendant/appellee Robert A. Simon,
Ph.D. hereby joins in and adopts in by reference the Answering Brief
of defendants/appellees Judicial Defendants and Superior Court of
California, County of San Diego filed by James B. Gilpin, Matthew
Green, Best Best & Kreiger LLP (Dkt Entry No. 51-1) filed on
December 19, 2014, with the exception of the argument at VII B.
regarding judicial immunity and VII E. regarding sanctions, which
issues do not apply to Robert A. Simon, Ph.D.
LEWIS BRISBOIS BISGAARD AND SMITH LLP
Dated: January 16, 2014
By:
/s/ Brian A. Rawers
Brian A. Rawers
Attorney for Defendant/Appellee Robert
A. Simon, Ph.D.
Case No. 14-56140

v.
Exhibit C
California Coalition for Families and Children PBC

4891 Pacific Hwy., Ste. 102
San Diego, CA 92110
Cole.Stuart@Lexevia.com
D: 858.504.0171
December 6, 2013
DEBRA L. HURST
dhurst@hurst-hurst.com
KYLE VANDYKE
kvand_yke@hurst-hurst.com
HURST & HURST
San Diego, LA 92101
Re:
California Coalition for Families and Children et al. v. San Diego

County Bar Association et al., United States District Court,
Southern District of California Case No. 13CV1944
Ms. Hurst and Mr. VanDyke:

I write to demand that you immediately withdraw certain exhibits and matter from the
Motions do Dismiss of your clients Jeffrey C. Fritz, APC, d/b/a Basie & Fritz, and Jeffrey C.
Fritz (FRITZ), in the above-referenced matter, Dkt#48 and #50, as violative of the
certifications required under Fed.R.Civ.P Rules 11(B)(1), (2), and (3). Please allow this to serve
as notice of Plaintiffs intent to move for sanctions against you and your clients under the same
in the event you fail to comply with this demand and notice within 21 days. Fed.R.Civ.P.
11(c)(2). I have reserved time for the hearing of this motion to coincide with the January 24,
2013 hearing for other motions in this case at 2:00 p.m. in Department 4C of the above entitled
Court. Motion papers will follow.
I.
Authority
By executing a pleading, an attorney certifies that the pleading:
it is not being presented for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation (FRCP 11(b)(1));
the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing
new law (FRCP 11(b)(2)); and
1
the factual allegations have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery (FRCP
11(b)(3)).
Scandalous matter is that which improperly casts a derogatory light on someone, most
typically a party to the action. 2 Moores Federal Practice 12.37 at 12-97. Scandalous
generally refers to any allegation that unnecessarily reflects on the moral character of an
individual or states anything in repulsive language that detracts from the dignity of the court.
While motions to strike are generally disfavored, the disfavored character of Rule 12(f) is
relaxed somewhat in the context of scandalous allegations and matter of this type often will be
stricken from the pleadings in order to purge the courts files and protect the subject of the
allegations. 5A C. Wright and A. Miller, Federal Practice and Procedure (Civil) 2d 1382, at
714 (1990). See Metrokane, Inc. v. The Wine Enthusiast, 160 F. Supp. 2d 633, 641-42 (S.D.N.Y.
2001) (Generally, motions to strike are disfavored and usually granted only for scandalous
material.)(citation omitted).
The striking of offensive material is particularly appropriate when the offensive material
is not responsive to an argument but, rather, constitutes an inappropriate attempt to abuse the
Courts process to attack an individual personally. See, e.g., Magill v. Appalachia Intermediate
Unit 08, 646 F. Supp. 339, 343 (W.D. Pa. 1986) (striking allegations that reflect adversely on
the moral character of an individual who is not a party to this suit which were unnecessary to a
decision on the matters in question); see also Pigford v. Veneman, 215 F.R.D. 2, 4-5 (D.D.C.
2003)(striking unfounded accusations that opposing counsel was racist); Murray v. Sevier, 156
F.R.D. 235, 258 (D. Kan. 1994) (striking allegation that defendant and his counsel bought off
and paid hush money to prospective witnesses); Cairns v. Franklin Mint Co., 24 F. Supp. 2d
1013, 1037 (C.D. Cal. 1998) (striking allegation that defendants are [l]ike vultures feeding on
the dead); Nault's Automobile Sales, Inc. v. American Honda Motor Co., 148 F.R.D. 25, 29-34
(D.N.H. 1993) (noting that [w]ith each passing week the pleadings assumed a more hostile and
accusatory tone and striking scandalous assertions).
II.
Discussion
Your Motions violate the certifications as follows:

1. Improper purpose to harass, cause unnecessary delay, or needlessly increase the costs
of litigation (Fed.R.Civ.P 11(b)(1))
Your Motions include a request for judicial notice and twenty three exhibits totaling 162
pages, consisting almost entirely of impertinent, controversial, and scandalous materials
unrelated to this action or your motion. Their irrelevance is aptly demonstrated by the fact that
in your arguments to the relevant standards for your motionsRule 12(b)(6) pleadings matters
of lawyou cite only two exhibits totaling three pages (RJN 19 (an email to corporate plaintiffs
attorney regarding the fact that he has not obtained permission to appear pro hac vice) at MTD
8:11, and RJN 20 (a secretary of state print-out regarding corporate Plaintiff Lexevias status
with the Secretary of State) at MTD 8:19). Outside of the disparaging, impertinent soliloquy that
is your statement of facts, no other RJN page or Exhibit is cited.
2
In your impertinent regurgitation you also disclose confidential details relating to Mr.
Fritz own clientLynn Stuartand a minor child. The manner with which you characterize
these details is not merely controversial, it is as a gouging personal attack on Plaintiff and his exwifes character, and the details of a divorce proceeding relating to a minor child that have thus
far been assiduously maintained in confidence. At the very least, your inclusion of such details
is a violation of Mr. Fritzs ethical duties to his client and her familys interests in maintaining
their confidences. Your facilitation of it in an unrelated action is a second compounding and
outrageous offense. Your and your clients introduction of such matters in this litigation should
be seen as no more than a despicable effort to abuse client and party confidences in this federal
District Court, and abuse its processes to attempt low-blow larded scuttlebutt, bespeaking
volumes of the character and integrity of the party you represent, and apparently your own.
Whatever aspersions your clients crave to abusively campaign for, they have no place in
this litigation, and their inclusion in a motion which cannot weigh evidence is at best unfaithful
litigation conduct with no purpose greater than to harass. I am in process of alerting the state bar
and relevant professional organizations of your and your clients reprehensible conduct. I hereby
demand that you withdraw exhibits 1-17 and all matter based thereon immediately.
2. Hearsay Evidence Improperly Submitted Via a Request for Judicial Notice
Moreover, such matters are not properly the subject of a judicial notice. Facts subject to
judicial notice are those which are either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). A court may not take judicial
notice of a matter that is in dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001);
In re Mora (9th Cir. 1999) 199 F3d 1024, 1026, fn. 3; Lustgraaf v. Behrens (8th Cir. 2010) 619
F3d 867, 886. The party requesting judicial notice bears the burden of persuading the court that
the particular fact is not reasonably subject to dispute and is capable of immediate and accurate
determination by resort to a source whose accuracy cannot reasonably be questioned. In re
Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992); Rodriguez v. Unknown-Named
disciplinary Hearings Agent, 209CV02195FCDKJNPS, 2010 WL 1407772 (E.D. Cal. Mar. 9,
2010) report and recommendation adopted sub nom. Rodriguez v. Unknown-Named Disciplinary
Hearings, CIVS092195FCDKJNPS, 2010 WL 1407789 (E.D. Cal. Apr. 7, 2010).
You rely on this evidence not to establish the existence of legal proceedings, but
asserting truth of the matters therein assertedscandalous and controversial facts relating to a
dissolution proceeding. For the record, all such matters and your self-serving characterization of
them are controverted, though entirely irrelevant now or at any future time to any matter at issue
in this case, and therefore constitution unfaithful litigation misconduct.
3. Frivolous Claims not warranted by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law or for establishing new law (FRCP
11(b)(2)), or evidencing lack of reasonable inquiry (Fed.R.Civ.P. 11(b)(3)
a. Lanham Act Count 21
Your attack on the False Advertising Count is similarly frivolous and conducted without
having accomplished even a basic review of the allegations of the Complaint. You assert that the
Complaint does not identify an item of commercial advertising. MTD 16:10. This is plainly
false. Complaint paragraphs 261 and 266.B identify your clients website and
misrepresentations, and Ex. 46 is a copy of the same.
You assert the Complaint lacks an allegation of falsity. MTD 16:11. Complaint
paragraphs 265, 261, 260, 266.A-E allege and describe the falsity of your clients representations
of theirs and others services. Paragraph 265 asserts The claims of all Defendants described in
this count and elsewhere are false and misleading.
You assert the Complaint lacks an allegation of injury or likelihood of injury. Complaint
paragraph 267 avers PLAINTIFFS have been damaged and reasonably believe they are likely to
be damaged again by such acts.
You allege the Plaintiffs lack standing to assert this injury because they lack capacity,
and because I have been disbarred. This is false. The Complaint alleges all Plaintiffs past and
ongoing efforts to provide the relevant competitive market with alternative goods and services to
your clients disasterously harmful and illegal services. For example, the Complaint avers:
Domestic Dispute Industry Legal Services Marketplace

297. The ENTERPRISES are successful due to manipulation of unique factors characterizing
the marketplace for Domestic Dispute Industry legal services. DDIL are ordinarily families
in crisis seeking to resolve their personal difficulties by altering relationships. In doing so
they must often seek the involvement of the state. For contested or unusually complex
matters, DDIL enlist experts to help navigate the market. Hence, a market for family law
experts to assist in navigating the complexity and/or maximizing outcome exists. (DDI
MARKET).
299. ENTERPRISE affiliates who serve or cultivate the illegal purposes of the enterprise
black hat operativesview DDIL as a raw material: a resource from which to extract net
profit. While each case may present different circumstances, and while DDICE associates
market their services as specialized, in fact the DDICE operate in conspiracy with common
SAD applied to each DDIL in the DDI MARKET; providing white hat services to those
seeking simple, healthy solutions, while still preserving, promoting, misrepresenting, and
protecting the ability to deliver illegal, unhealthy, yet far more profitable black hat
services.
4
300. However, to maintain long-term vitality, DDICE operatives must govern themselves to
avoid exposure of their illegal SAD, or overfisingextracting so much value from one or
more DDIL that they sour to the DDIL marketplace or reveal the ENTERPRISE and SAD,
thereby inducing reform such as FFRRESA, and DUE COURSE OF JUSTICE.
301. Yet the balance necessary to achieve maximum TCE extraction without fair
competition, revelation, or overfishing cannot be achieved without cooperation between the
petitioners and respondents counselhence False Flag and other fraudulent SAD by
which DDIA, DDIJO, and DDIPS exercise client control by refraining from zealous
advocacy or honest services in hopes of lowering extraction costs for Petitioners counsel,
maximizing TCE extraction, and leaving at least one unburned DDIL to perpetuate future
SAD on future DDIL market entrants.
302. Petitioner and Respondent counsel (seeking to maximize wealth transfer) evaluate each
case early through compelled disclosures known as Income and Expense Declarations.
These forced sworn statements require both parties to reveal extensive details regarding
income, assets, and expenses. The putative goal is for the determination of support levels.
However ENTERPRISE operators and affiliates also use the declarations to plan how to
maximize extraction of value from the TCE. This collaboration is evidenced by the common
observation that DDICE operators and affiliate follow the business rule to bill until the
client runs out of money or patience, then quit. (or, in the case of even white hat
operatives, finish for free). DDIJO fully comply by allowing DDIA withdrawals for
nonpayment with unusual ease, in further violation of the equal protection of the laws.
303. Unfortunately, unlike commercial legal markets populated by business clients and inhouse counsel, many DDIL lack the sophistication, intelligence, market awareness, or
general psychological stability in a time of crisis to recognize the SAD until it is too lateif
then. As such, educating the DDIL marketplace to improve awareness and thereby eliminate
the competitive advantage of illegal black hat operators has been a central theme both in
PLAINTIFFS FFRRESA and BUSINESS DEVELOPMENT.
304. For the DDICE operatives, the market for perpetrating the SAD on unwary DDIL has
become almost too easythe main goal is no longer to facilitate the illegal extraction but to
avoid overfishing. DDICE operatives must seek to maximize the value extracted from the
TCE in the short term without achieving a burned DDIL rate that deters potential future
market entrants from seeking services, or becoming too aware of the market dynamics
enabling crime. This balance can only be achieved through coordination among DDIA,
DDIPS, and DDIJO Enterprise operatives who must defy their PROFESSIONAL DUTIES to
coordinate the cabal.
305. They do so by the False Flag SAD described below, including Poser Advocacy
paperwads and kite bombs to achieve maximum TCE extraction with as little risk for
deterrence and exposure. Hence the tendency of the DDICE to utilize irrational motivating
tactics such as The PIT fear or anger or DDI-FICE (selfishness, greed), with balancing
tactics such as illegal conspiracy through SAD, drives illegal market collusion.
The Complaint describes Plaintiffs past and ongoing efforts to effect reform by proving
alternative services in competition with your clients:
Commercial Purposes of Plaintiffs (COMMERCIAL PURPOSES)

100. CCFC: California Coalition for families and Children is a public benefit corporation
educating, supporting, protecting, and promoting parents and childrens rights and interests
which are presently under- or misrepresented by existing marketplace or government institutions,
particularly in domestic dispute and child custody matters. Since 2008 CCFC has assisted
mothers, fathers, and children in defending and supporting family autonomy in relations with one
another and government interests with related jurisdiction. CCFC is active in protecting,
empowering, and promoting parents and children through education, community support,
lobbying, litigation, and public and private entity awareness.
101. Recognizing the widespread deprecation to tens of thousands of victim parents and children
wrought by Californias unchecked operation of its uniquely pernicious Domestic Dispute
Industry in violation of the FFR, CCFCs commercial activities have been directed toward
educating, empowering, supporting, and representing parents and children to withstand and
eventually reverse this well-armed invidious bureaucratic tide eroding parents and childrens
welfare. CCFC has advanced public and governmental awareness of the underserved needs of the
Domestic Relations Class including defending parents against numerous alarming deprivations
of parents and childrens financial interests by the steamroller public-private enterprise
Domestic Dispute Industry. CCFC works closely with national parenting organizations such the
National Parents Organization, ACFC, and Up To Parents to provide healthy, safe, and legal
counseling, resources, representation, services, and support alternatives to traditional domestic
dispute services.
CCFC as a corporation in good standing and I as its President, maintain positions in this
marketplace giving adequate standing to seek prospective relief. Upon revival, Lexevia will
continue to do so as well. None of these courses require a license to practice law.
Your motion disingenuously misrepresents allegations plain on the face of the Complaint.
Such is unfaithful litigation conduct.
b. Capacity and Standing Issues
You incorrectly assert that a lack of capacity entitles your clients to dismissal. This is
factually and legally frivolous. LEXEVIA has averred and possesses capacity sufficient to
maintain standing to sue both as a corporation and unincorporated association. Nat'l Org. for
Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127 L. Ed. 2d 99 (1994). This
term covers any group (profit or nonprofit) whose members share a common purpose and who
function under a common name. This includes churches, labor unions, political parties,
professional or trade associations, social clubs, homeowners' associations, etc. See Committee
for Idaho's High Desert, Inc. v. Yost (9th Cir. 1996) 92 F3d 814, 819. As I am the sole
remaining member of the firm I founded, LEXEVIA has been devastated by the events described
6
in the Complaint. It is presently in process of reviving its corporate status pursuant to the
Revenue and Tax Code 23305a which provides: Upon the issuance of the certificate by the
Franchise Tax Board the taxpayer therein named shall become reinstated but the reinstatement
shall be without prejudice to any action, defense or right which has accrued by reason of the
original suspension or forfeiture, except that contracts which were voidable pursuant to Section
23304.1, but which have not been rescinded pursuant to Section 23304.5, may have that
voidability cured in accordance with Section 23305.1. The certificate of revivor shall be prima
facie evidence of the reinstatement and the certificate may be recorded in the office of the county
recorder of any county of this state. Cal. Rev. & Tax. Code 23305a (West). This process is
underway. See Declaration Colbern Stuart In Support of Opposition to Superior Court Motion
for Sanctions, Dkt#56-2, Ex. B.
Paragraph 3 of the Complaint avers sufficient capacity to permit this action to proceed
without amendment on this issue. In the event that your clients will insist on pressing this issue I
have sought seek leave to amend to allege these facts. Leave to amend shall be freely given
when justice so requires, Fed.R.Civ.P. 15(a), and this policy is to be applied with extreme
liberality. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987).
Any assertion that LEXEVIA lacked standing under Article III at the time that the law
suit was filed is legally frivolousa confusion of the concepts of capacity and standing. A
corporation has Article III standing if it can satisfy the three elements described in Lujan: (1) it
suffered an injury in fact, (2) a causal connection between the injury and the conduct complained
of, and (3) the injury will be redressed by a favorable decision. See also Paradise Creations,
Inc. v. UV Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir. 2003). Capacity to sue is a distinct
doctrine; it is simply the permission necessary to utilize state and federal court systems. ColorVue, Inc. v. Abrams, 53 Cal.Rptr. 2d 443, 446 (1996); Cal. Rev. & Tax. Code 23301. The lack
of capacity has no impact on the issues of standingthe critical question on standing relates to
injury, not permission to sue. As LEXEVIA has pled injury in existence at the time the
Complaint was filed, the MTDs assertion that it lacks standing based on that injury is error. See
Opposition to Motion to Dismiss (Dkt#21) and Declaration and Exhibits thereto (Dkt#21-1).
c. Representations regarding Mr. Webb:
Your Motions assert that the email from Mr. Webb at RJN Ex. 20 confirmed that he does
not represent any party to this litigation. This is false. The email accurately relates that Mr.
Webb does not appear as counsel in this litigation (emphasis added). CCFC is in process of
hiring local counsel to sponsor Mr. Webb, and as such Mr. Webb cannot yet appear, yet does
represent both corporate plaintiffs. The caption page of each pleading in this matter accurately
reflects that Plaintiffs are seeking local counsel to sponsor Mr. Webb. Further, your motion cites
no authority that this issue is grounds for dismissal of a claim with prejudice. As such, this
attack is frivolous.
d. Frivolous Assertions that Inadmissible Emails Contain threats or obscenity.
You claim that certain of the communications contained in the inadmissible Request for
Judicial Notice exhibits contain nearly two dozen threatening, obscene, and harassing
7
messages. MTD 4:15-16. This is a false statement contrary to law of which you are certainly
aware. The exhibits you improperly attempt to introduce contain no obscenity or threats as
those terms are identified in controlling authority within this state and in this and all federal
jurisdictions. The well-established test for obscenity is:
1. whether the average person, applying contemporary community standards, would find
that the work, taken as a whole, appeals to the prurient interest;
2. whether the work depicts or describes, in a patently offensive way, sexual conduct;
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
Miller v. California, 413 U.S. 15 (1973).
The language you reference in your exhibits is not obsceneit is ordinary cursing
given with the intent to insult, not appeal to a prurient or sexual interest. See, e.g., In re
C.C., (2009) 178 Cal.App.4th 915 (finding insulting language not obscene because not appealing
to prurient, or sexual, interests). Harassment is not a crime. The relevant test for a threat is
whether the language used expresses an intent to commit an immediate and unconditional act of
violence. See, Cal. Pen.C. 420; Watts v. United States, 394 U.S. 705 (1969); United States v.
Cassell, 452 F.2d 533 (1971) Brandenburg v. Ohio, 395 U.S. 444 (1969); In re C.C., supra.
None of the language referenced in your emails satisfies this test. To the extent that your facts
recite irrelevant issues of emails between your client and I containing obscenity, your claims
have no evidentiary support and will not likely have evidentiary support after a reasonable
opportunity for further investigation or discovery (FRCP 11(b)(3)). As your assertions are
directly contradicted by controlling state and federal authority, they cannot be based on
reasonable investigation, and are both scandalous and frivolous as a matter of law.
e. Irrelevant Litigation Privilege Defenses
Your Motions assert a legal defense of litigation privilege, yet fail to identify any conduct
that would be subject to that privilege. Assertions of a factual defense to a state law civil
defamation cause of action is irrelevant the federal law claims against your client in this case,
and your Motion fails its burden of proving otherwise. Fed.R.Civ.P. 8(c) (defendant must plead
any matter constituting an avoidance or affirmative defense). To the extent that the defense
may be available to a state law claim, it is your clients burden of proof, and not properly
asserted in a motion to dismiss unless plain from the face the Complaint. The Complaint does
not assert defamation against your client, but various counts for fraud, violation of civil rights,
and obstruction of justice, primarily under federal law. To the extent that the Complaint asserts
state law causes of action related to defamation against your clients, they do not relate to any
state court proceeding, as your inability to identify any Counts that make such an assertion
indicates. As no Count in the Complaint is subject to a state law litigation privilege, this attack is
frivolous and unfaithful litigation conduct.
f. Lack of Duty in Absence of Attorney-Client Relationship is Irrelevant to Any Count and

Thus Frivolous
Your assertion that the Complaint asserts malpractice against your client is further
frivolous. The Complaint asserts mail, wire, bank, and honest services fraud under 18 U.S.C.
1341, 1343, and 1346 as a racketeering predicate act under 18 U.S.C. 1962 (c) and (d).
Though your clients clearly breached their duties to their own client, Lynn Stuart, in perpetrating
the schemes and artifices to defraud detailed in the Complaint, these Plaintiffs do not, and need
not rely on any duty owed by your client to Ms. Stuart. See, e.g., Bridge v. Phoenix Bond &
Indem. Co., 553 U.S. 639 (2008). Your assertion to the contrary is a clear misrepresentation or
inexcusable misunderstanding of the Complaint, and therefore frivolous.
g. Pleading Prospective Relief Counts Need Not Satisfy Grounds for a Preliminary
Injunction Motion
Finally, your attack on the prospective relief counts of the Complaint are frivolous as they
assert grounds other than those relevant to an attack on the pleadings at the Rule 12(b)(6) stage.
This attack asserts that the Complaint fails for lacking averments that it is entitled to a
preliminary injunction or temporary restraining order. See, e.g., MTD 20:17-21:9. The
arguments contained at 21:10-22:5 claim that the Complaint is defective for failing to aver
likelihood of success on the merits, irreparable harm, balance of equities and public
interest. While such an attack would be relevant to a defense of a motion for a temporary
restraining order or preliminary injunction, they are entirely irrelevant to an attack on the
Complaint.
The relevant pleading standard test for a Complaint seeking prospective relief is the
standing test articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130,
2136, 119 L. Ed. 2d 351 (1992): To allege Article III Standing [f]irst the plaintiff must have
suffered an injury in factan invasion of a legally protected interest which is (a) concrete and
particularized, see id., at 756, 104 S.Ct., at 3327; Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct.
2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740741, n. 16, 92
S.Ct. 1361, 13681369, n. 16, 31 L.Ed.2d 636 (1972);1 and (b) actual or imminent, not
conjectural or hypothetical, Whitmore, supra, 495 U.S., at 155, 110 S.Ct., at 1723 (quoting
Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). Second,
there must be a causal connection between the injury and the conduct complained ofthe injury
has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result
[of] the independent action of some third party not before the court. Simon v. Eastern Ky.
Welfare Rights Organization, 426 U.S. 26, 4142, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976).
Third, it must be likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision. Id., at 38, 43, 96 S.Ct., at 1924, 1926. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). As detailed in the M&C
and Opposition to Superior Court Defendants MTD, the Complaint satisfies this standard, and
no Plaintiff has yet asserted a claim for preliminary relief. Your attack on the irrelevant grounds
relating to standards for granting preliminary relief is therefore frivolous.
The remaining grounds of attack in your motion are also meritless, but do not arise to the
level of frivolous, and will therefore be addressed in opposition. My demand that you
immediately withdraw those identified herein, however, stands.
III.
Conclusion
Your Motion to Dismiss evidences the deplorable practice standards of a legal practice in
which our communities are forced to entrust the care and safety of children, strife-stricken
families, and future. Your Motion requests to walk the Court through twenty-three exhibits of
extraneous, impertinent, private, and degeneratively scandalous matterin support of a motion
that cannot weight evidence. The ears of many from your clients home forum now present in
this one may have grown callous to such aberrant, disrespectful practices. I suggest that the one
in which your clients now appear will not be so.
Plaintiffs hereby demand that you immediately withdraw the matter as identified above. In
the event that your clients fail to do so, I will move the court for sanctions for their failure to do
so on Thursday, January 24, 2013 at 2:00 p.m. at Department 4C of the above-identified Court.
Sincerely,
Colbern C. Stuart, III

Colbern Stuart
President, California Coalition for Families and
Children
cc:
All counsel
10

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Case: 14-56140, 02/13/2015, ID: 9421305, DktEntry: 123, Page 1 of 127

Case No. 14-56140

APPELLANTS MOTION TO STRIKE IMPROPER

Colbern C. Stuart III, J.D.

Dean Browning Webb, Esq.

Case: 14-56140, 02/13/2015, ID: 9421305, DktEntry: 123, Page 2 of 127

MOTION AND RELIEF SOUGHT

PLEASE TAKE NOTICE that Appellants California Coalition for Families

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Federal (Chubb) Appellees:

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A. Excerpts Consisting of Matter Not Within the District Court

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supplemental excerpts of record that contain unauthorized documents or matters that

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B. Appellees Supplemental Excerpts Contain Matter That May be

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claims, a Lanham Act common markets pleading sufficiency attack,

Stuart objected that the exhibits were controversial hearsay

irrelevant to a pleading-stage motion to dismiss and inappropriate matter for

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3. Doyne Supplemental Excerpts Contain Exhibits to a Request

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4. Federal (Chubb) Supplemental Excerpts Contain Exhibits to a

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None of Federals exhibits are relevant to any issue in its pleading-stage

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This Court gives no consideration to materials stricken from the record in

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E. Appellees Improperly Attach Entire Memoranda Filed Below and

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MONETARY SANCTIONS ARE APPROPRIATE

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Dated: February 13, 2015

By: s/ Colbern C. Stuart III

Dated: February 13, 2015

By: s/ Dean Browning Webb

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DECLARATION OF COLBERN STUART IN SUPPORT OF MOTION TO

I am a plaintiff-appellant in this action and President of plaintiff-appellant

I submit this declaration in support of the accompanying Plaintiffs-

Appellants motion to Strike Improper Excerpts.

supplemental excerpts. Relevant to this motion are the following:

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Federal (Chubb) Appellees:

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5. Attached hereto as Exhibit B are copies of pages from Appellees Answering

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1. Fritz Appellees Excerpts

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addition, Judicial Appellees asserted judicial and Eleventh Amendment

See California Coalitions

Objections and Motion to Strike at Doc. Nos. 21, 162.

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