19-1 ccfc mem iso mtn strike mtd

8/13/2019 19-1 Ccfc Mem Iso Mtn Strike Mtd

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TABLE OFCONTENTS

I. INTRODUCTION ................................................................................................... 1

II. DISCUSSION .......................................................................................................... 1

A. Authority ............................................................................................................... 1B. Request for Judicial Notice .................................................................................. 2

1. RJN Exhibits A and B: Declaration of Emily Garson in Support of Arrest

Warrant (Garson Declaration); Superior Court of California Ex Parte Minutes

Form (Ex Parte Minutes)...................................................................................... 3

2. RJN Exhibits D, F, and G: Printouts of Internet Pages at

http://members.calbar.org, http://www.azbar.org, and www.nvbar.org ....... 5

3. RJN Exhibit E: Decision and Order of Inactive Enrollment: .................... 6

4. RJN Exhibit H: Order Of Temporary Suspension ..................................... 6

5. RJN Exhibits C and I: Printouts from Internet Pages at

https://delcorp.delaware.gov/tin/controller and http://kepler.sos.ca.gov/ ............... 7

C. Nesthus Declaration (Dkt#16-3) ........................................................................ 10

D. Scandalous and Scurrilous Matter ............................................................... 11

E. Immaterial or Impertinent Matter ................................................................ 11

1. All Immunity Affirmative Defenses ............................................................... 11

2. All Authority Under Rules of Civil Procedure Not Asserted ......................... 13

III. CONCLUSION ..................................................................................................... 18


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Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) 17

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed.

2d 195 (1989) 15

Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) 14

Imbler v. Pachtman, 424 U.S. 409, 429, 96 S. Ct. 984, 994, 47 L. Ed. 2d 128 (1976)

17

In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) 11

In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992) 2

Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 3, 12

Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) 16

Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). 5

Kennedy v. Full Tilt Poker, 2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010) 13

Kush v. Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983)

16

Larry v. City of the Dalles, 09-CV-663-AC, 2009 WL 4894485 (D. Or. Dec. 16,

2009) 3

Leatherman v. Tarrant Cnty. NarcoticsIntelligence & Coordination Unit, 507 U.S.

163, 167, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) 12

Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001) 2

Lewis v. Russell,838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012) 9

Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA, 2008 WL 4856144 (N.D.

Cal. Nov. 7, 2008). 13

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L.

Ed. 2d 351 (1992) 9, 10

Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925 F. Supp. 191, 193 (S.D.N.Y.

1996) 16

Mertens v. Permanente Med. Grp. Long Term Disability Plan, C 10-1457 RS, 2010

WL 5138815 (N.D. Cal. Dec. 10, 2010) 2


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RULESFed.R.Evid. 201(b) ......................................................................................................... 2

Fed.R.Civ.Proc. 8(c) ..................................................................................................... 12

Fed.R.Civ.Proc. 12(f) ..................................................................................... 1 et passim


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I. INTRODUCTION

This Memorandum in Support of Plaintiff Colbern Stuarts Motion to Strike

Matter Submitted in Support of Defendants Motion to Dismiss (Motion to Strike)

is filed in support of Plaintiffs Opposition to Defendants the San Diego County

Superior Court, Robert J. Trentacosta, Michael M. Roddy, Lisa Schall, Lorna A.

Alksne, Christine K. Goldsmith, Jeannie Lowe, William H. McAdam, Jr., Edlene C.

McKenzie, and Joel R. Wohlfeil ("Defendants") Motion to Dismiss Complaint

(MTD) (Dkt.#16-1), the Request for Judicial Notice and exhibits thereto (RJN)

(Dkt#16-2) and the Declaration of Kristine P. Nesthus (Dkt#16-3).

Relevant case history predating this Motion is set for in Plaintiffs Opposition

to the MTD and incorporated here by reference. In addition, Plaintiffs October 28,

2013 meet and confer letter (M&C) attempted to resolve informally the issues

raised herein. See Ex. A to Declaration of Colbern Stuart in Support of Motion To

Strike, Opposition to Motion to Dismiss (Stuart Decl.). Defendants have rejected

the M&C. Stuart Decl. Ex. B.

Plaintiff moves to strike (1) Defendants Request for Judicial Notice, and

exhibits thereto, (2) Declaration of Kristine P. Nesthus submitted in support of

Defendants MTD, and (3) certain insufficient defenses, immaterial,

impertinent, and scandalous matter in the MTD as follows.

II. DISCUSSIONA.AuthorityFederal Rule of Civil Procedure 12(f) provides:

(f) Motion to Strike. The court may strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter. The

court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading


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threatening messages via email despite criminal pending criminal action against

him.

In the Declaration Ms. Garson requested issuance of a warrant for Plaintiffs

arrest based upon her sworn representations as to the criminal nature of the obscene

and threatening emails contained in the official reports of the San Diego City

Police Department. She executed but did not date the declaration under oath.

The Declaration bears the April 6, 2010 signature of San Diego County

Superior Court Judge Krauel, and the language Declaration read; probable cause to

arrest found; warrant to issue. The Declaration bears a Filed stamp of April 6,

2010.

RJN Exhibit Bis an Ex Parte Minutes form (CRM-177) relating to the

same misdemeanor criminal case. The form references issuance of a misdemeanor

warrant and bears a stamp Roger Krauel, is dated April 14, 2010, but bears no

reference to the Garson Declaration, does not identify for whom the warrant was

issued, and does not identify any agency receiving the warrant.

As presented, the exhibits lack foundation to establish their materiality or

pertinence to any issue in this litigation. Presumably Defendants intend to attempt

their introduction to build an affirmative defenseof qualified immunity in support of

the contention that the STUART ASSAULT was pursuant to warrant. MTD 1:25,

3:22, 4:3, 23:28. Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) (qualified

immunity is an affirmative defense for which asserting party bears the burden of

proof); Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572

(1980); Fed.R.Civ.Proc. 8(c) (defendant must plead any matter constituting an

avoidance or affirmative defense). Yet as offered, the exhibits lack necessary

foundation for introduction at this or any stage, and are thus immaterial or

impertinent to any matter properly at issue here.

Moreover, should Defendants attempt to perfect their foundation to establish

materiality to the affirmative defense, it will be vigorously contested, including that


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the Garson declaration contains numerous false statements under oath. See Genzler v.

Longanbach, 410 F.3d 630, 636 (9th Cir. 2005);Morley v. Walker, 175 F.3d 756, 760

(9th Cir.1999) (prosecutor not immune for false probable cause declaration leading to

issuance of warrant); Fenters v. Chevron, CV-F-05-1630 OWW DLB, 2010 WL

5477710 (E.D. Cal. Dec. 30, 2010);Burns v. Reed, 500 U.S. 478, 486487 (1991);

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Kalina v. Fletcher, 522 U.S. 118,

126 (1997). As such the controversial evidence may also be stricken an insufficient

defense at this Rule 12 stage.

Further, the documents are inadmissible under any circumstances as they are

multiple hearsayout of court statements presently offered for the truth of the

matters therein asserted; The declaration is hearsay to this action, referencing a file,

itself hearsay to the criminal action and this action, containing hearsay statements or

other foundationless matter by a San Diego City Police Department officer, relating

to emails, further hearsay, containing obscene and threatening language, also

potentially hearsay.

Related Allegations in the MTD:

Defendants representations that Contrary to his allegations, at the time of the

seminar, there was an outstanding warrant for Stuarts arrest in connection with a

criminal action (MTD 3:22), and that Stuart was arrested pursuant to the

outstanding warrant (MTD 4:3) are false, at least controversial, and as such are

constitute an insufficient defense at the Rule 12 stage. As such these sections of

the MTD may also be stricken.

2. RJN Exhibits D, F, and G: Printouts of Internet Pages athttp://members.calbar.org, http://www.azbar.org, and

www.nvbar.org

These printouts of pages from internet websites purporting to reflect

proceedings and matters within the State Bars of California, Arizona, and Nevada are

foundationless, inadmissible hearsay, and not material to any matter properly at issue


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5. RJN Exhibits C and I: Printouts from Internet Pages athttps://delcorp.delaware.gov/tin/controllerand http://kepler.sos.ca.gov/

Similar to RJN Exhibits D, F, and G above, Exhibits C and I are

foundationless hearsay printouts from the Delaware and California Secretaries of

State and may be stricken for evidentiary reasons alone. However, the matters

asserted therein are not controvertedCCFC is a Delaware Public Benefit

Corporation in good standing, and Lexeiva, PC is a California Professional

Corporation which has its license presently suspended for reasons unrelated to this

action.

Yet these noncontroversial matters are immaterial or impertinent to any issue

in the Complaint or MTD. The MTDs analysis in reliance on them exhibits two

fundamental confusions between state and federal law on capacity and standing.

The MTDs confusion will be first explained, then an accurate analysis offered.

a. Capacity vs. Standing Under State LawThe exhibits are offered in support of Defendants claims that CCFC and

LEXEVIA lack capacityto sue: As a Delaware corporation, which was only

incorporated the day before filing this action, CCFC' s capacity to sue is governed by

Delaware law. . . Under Delaware law, CCFC must appear in this action through

counsel and cannot proceed in propria persona. . . . (MTD 7:11). With regard to

Lexevia, its capacity to sue is determined by California law. (Compl. at 1.)

According to the California Secretary of State, it is a suspended professional

corporation. (RJN, Ex. I.) MTD 8:13-15.

CCFC and Lexevias capacityto sue are immaterial, impertinent, and raise

insufficient grounds for relief available by Rule 12(b)(1) or (6) as requested in the

MTD. Capacity and standing are distinct issues, and a plaintiffs lack of capacityto

sue is not an appropriate ground on which to bring a motion to dismiss for lack of

standing. This distinction is explained in the California Court of Appeals case

Defendants themselves cite: Respondents' arguments are based on their belief that


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ColorVue's suspension for failure to pay its taxes deprived ColorVue of standing to

prosecute its action. Respondents are mistaken. Suspension of corporate powers

results in a lack of capacity to sue, not a lack of standing to sue. Color-Vue, Inc. v.

Abrams, 44 Cal. App. 4th1599, 1603-1604, 52 Cal. Rptr. 2d 443, 446 (Ct. App.

1996). The California Court of Appeals for the Second District (applying California

Code of Civil Procedure disanalogous to the Federal Rules on the question of

standing) diagnosed defendant/respondents confusion: [defendants] confusion

may have arisen from the fact that a suspended corporation is often described as not

in good standing with the State of California or the Secretary of State. Color-Vue

at fn. 3.

Defendants here exhibit the same confusion as the defendants in the state court

of appeals case they cite.

b. Capacity vs. Standing Under Federal LawCapacity and standing are also distinct issues under federal law, but for a

different reason that is also fatal to Defendants analysis in the MTD. Under both

state and federal law, capacity may be raised by a defendant at any time in the

lawsuit, yet is curable by revival. Color-Vue, supra;Ameripride Services, Inc. v.

valley Industrial service, Inc., 2008 WL 5068672 (E.D. Cal. 2008). The analysis

under federal law is reported as follows:

Federal Rule of Civil Procedure 9(a)(1) states that a pleading need not

allege ... a party's capacity to sue or be sued. Therefore, to raise incapacity as

an issue, a party must do so in a responsive pleading; failure to do so forfeits

any incapacity argument.De Saracho v. Custom Food Mach., Inc., 206 F.3d

874, 878 (9th Cir.2000). . . . These statements are themselves sufficient to

satisfy FRCP 9(a). The primary purpose of this rule is to provide notice to the

opposing party, and once notice of the defense is provided, FRCP 9 itself does

not require a party to file an early dispositive motion based on the defense. See


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Silliman v. Du Pont, 302 A.2d 327, 330 (Del.Super.Ct.1972) (citing 5 Wright

& Miller, Federal Practice and Procedures Section 1295)).

Id.(lack of standing to sue can be raised at any time, even for the first time on

appeal.). See alsoLewis v. Russell,838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012)

(Defendants do not waive defense of plaintiffs lack of capacity by failure to assert in

initial responsive pleading).

Thus, a lack of capacityto sue is not grounds for a motion to dismiss provided

a party can revive. The MTD acknowledges LEXEVIAs present ability to revive its

capacity to sue, and the accompanying Stuart Decl. represents that revival is

underway.

The MTD nevertheless asserts dismissal under Rule 12(b)(1), reasoning that in

lacking capacity, LEXEVIA lacks standingunder Article III. MTD 8:19-23. This

analysis is incorrect. Article III 2, clause 1 of the United States Constitution

confers jurisdiction to federal courts only over cases and controversies. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d

351 (1992) (Though some of its elements express merely prudential considerations

that are part of judicial self-government, the core component of standing is an

essential and unchanging part of the case-or-controversy requirement of Article III.).

UnderLujan, a plaintiff must establish standing by showing (1) injury in fact, (2) a

causal connection between the injury and the relief sought, and (3) that the injury will

be redressed by a favorable decision. Id. Capacity is not relevant to establish Article

III standing.

c. LEXEVIAS Article III StandingLEXEVIA has averred facts sufficient to establish Article III standing. Injury

in fact includes injury to individuals, corporations, as well as unincorporated

associations. See, e.g.,Lujan, supra;Nat'l Org. for Women, Inc. v. Scheidler, 510

U.S. 249, 255, 114 S. Ct. 798, 802, 127 L. Ed. 2d 99 (1994). Both Lexevia and


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CCFC have suffered and pled injury in fact as entities existing as one or more of a

corporation, unincorporated association, or individuals. See analysis at Oppo.__;

M&C IV.I.

d. Corporate Plaintiffs Representation Is Immaterial to a Request for DismissalUnder Rule 12(b)(1) or (6)

The MTD asserts that RJN Exhibits C and I are material to establish that

the corporate plaintiffs are not represented by counsel: Neither Stuart nor Mr. Webb

are counsel for CCFC (MTD 7), and Lexevia has appeared in this action without

counsel (MTD 9). As detailed at M&C IV.I.2, Both CCFC and LEXEVIA are

represented only by counsel, Mr. Dean Webb. The caption page of the Complaint

clearly identifies Mr. Webb as Attorney for Plaintiffs California Coalition for

Families and Children, Inc. and Lexevia, PC. (Compl. p. 1). STUART nowhere

claims to be counsel for any party and has consistently appeared only pro se in each

pleading. See Verified Complaint, Verification (Compl. pp. 171, 172); Ex Parte

Application for Temporary Harassment Protective Order (Dkt #4); Ex Parte

Application for Leave To Utilize Electronic Filing System (Dkt #6); Ex Parte

Application for Leave to File Over-length Brief (Dkt #17), this Memorandum,

Motion, and related Opposition. Mr. Webbs notation that he is in process of

obtaining pro hac vice admission is an accurate disclosure that he is not admitted in

this District, and is in process of obtaining admission by appropriate procedure. See

M&C sec. I.

As corporate representation is a capacity issue immaterial to standing, RJN

Exhibits C and I are impertinent, immaterial, and an insufficient defense within a

Rule 12 motion. They may thus be stricken.

C.Nesthus Declaration (Dkt#16-3)For many of the same reasons, the Nesthus Declaration is evidentiary,

controversial, immaterial, impertinent, and inappropriately filed at any stage. The

Declaration is testimony of irrelevant events by Ms. Nesthus after she became aware


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Court has never indicated that qualified immunity is relevant to the existence of the

plaintiff's cause of action; instead we have described it as a defense available to the

official in question.); Procunier v. Navarette, 434 U.S. 555, 562 (1978); Pierson v.

Ray, 386 U.S. 547, 556 (1967);Butz v. Economou, 438 U.S. 478, 508 (1978); Siegert

v. Gilley, 500 U.S. 226 (1991);Leatherman v. Tarrant Cnty. NarcoticsIntelligence &

Coordination Unit, 507 U.S. 163, 167 (1993).

The burden of pleading and proving any affirmative defense rests with the

defendant. Fed.Rule Civ.Proc. 8(c) (defendant must plead any matter constituting an

avoidance or affirmative defense); 5 C. Wright & A. Miller, Federal Practice and

Procedure 1271 (1969). It is for the official to claim that his conduct was justified

by an objectively reasonable belief that it was lawful. We see no basis for imposing

on the plaintiff an obligation to anticipate such a defense by stating in his complaint

that the defendant acted in bad faith. Gomez, supra. The same is true for the defense

of reasonableness. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982);Butz, supra.

Affirmative defenses generally may not be raised in a Rule 12(b)(6) motion

unless based on some non-controversial preclusive legal defense. Scott v. Kuhlmann,

746 F.2d 1377, 1378 (9th Cir. 1984). A defendant may bring a Rule 12(b)(6) motion

based upon an affirmative defense in unusual circumstances: where the face of the

Complaint admits a defense. See, e.g.,Jablon v. Dean Witter & Co., 614 F.2d 677,

682 (9th Cir. 1980) (If the running of the statute is apparent on the face of the

complaint, the defense may be raised by a motion to dismiss.); Graham v. Taubman,

610 F.2d 821 (9th Cir.1979). A Rule 12(b)(6) motion asserting that the complaint

admits a defense must show the defense is (i) definitively ascertainable from the

complaint and other allowable sources of information, and (ii) suffice to establish

the affirmative defense with certitude. Gray v. Evercore Restructuring L.L.C., 544

F3d 320, 324 (1st Cir. 2008).

As detailed in the Opposition, the Complaint admits no affirmative defense of

immunity. See also M&C III.B. MTD sections IV.C, D, and E may therefore be


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stricken as immaterial, impertinent matter and insufficient defenses in the present

Rule 12(b)(6) context.

2. All Authority Under Rules of Civil Procedure Not AssertedThe MTD requests relief of dismissal with prejudice or without leave under

Rule 12(b)(6), yet presents arguments which cannot achieve that result. MTD IV.3:4,

11:8, 23:4. Rule 12(f) may be used to strike any part of the prayer for relief when the

relief sought is not recoverable as a matter of law.Bureerong v. Uvawas,922 F.Supp.

1450, 1478 (C.D.Cal.1996);Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA,

2008 WL 4856144 (N.D. Cal. Nov. 7, 2008).

As detailed in the Opposition, the MTD conflates authority under Rules 12(c), (e),

and (f) with Rule 12(b)(6), and attacks the Complaint for failing to satisfy Rule 9(b)s

fraud pleading standard when the relevant standard is fact pleading under Rules 9 and

8(a) per Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)andGilligan v. Jamco

Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). The result is a confusing morass of

immaterial and impertinent argument and authority seeking unavailable relief, and

rising to the level of strikeable matter.

Though the Court may convert a Rule 12(b)(6) motion to a Rule 12(e) motion,

doing so in this case would be improper. The class of pleadings that are appropriate

subjects for a motion under Rule 12(e) is quite small. Kennedy v. Full Tilt Poker,

2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010). A motion for more definite

statement is used to provide a remedy for an unintelligible pleading rather than a

correction for lack of detail.N.Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P.,

2010 WL 1499289, at *1 (S.D.Cal. Apr.12, 2010). Length, complexity, or even

unnecessary prolixity are not grounds for dismissal with or without leaveunder Rule

12(b)(6). See, e.g., Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th

Cir. 2008). Where a complaint exceeds reasonable inclusion of supplemental

particulars, the proper disposition of such matter is to simply ignore it. U.S. v.

Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (Some complaints are


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windy but understandable. Surplusage can and should be ignored.); Wynder v.

McMahon, 360 F.3d 73, 80 (2d Cir.2004) (holding that district court erred in

dismissing on Rule 8 grounds when the complaint, though long, was not so

confused, ambiguous, vague or otherwise unintelligible that its true substance, if any,

is well disguised.)

Analysis

Defendants, with some prolixity, assail the Complaint as incomprehensible

rambling (MTD 1, 10:2), of the magnitude of War and Peace (MTD 2), bucket of

mud, sprawling, incomprehensible, confusing, distracting, ambiguous, and

unintelligible (MTD 9), confusing and conclusory (MTD 10), and that a reader

must "try to fish a gold coin from a bucket of mud[,]". Yet the Complaints length

and complexity cannot be accused as a defect of pleading; the statutes it is brought

under are notoriously complex and perhaps confusing even to the accomplished

jurists present in this litigation.

Yet such insults, even if accurate, are not grounds for dismissal under Rule

12(b)(6). The MTD asserts authority under Rules 12(e) and (f), or motions for leave

to amend under Rule 15, in support of the MTDs arguments under Rule 12(b)(6).

See Oppo., M&C III.A. The MTDs authority and arguments thereunder are thus

disenabling to the relief sought, and may be stricken. Bureerong, supra.

Moreover, the Complaint, like the complex criminal enterprises RICO and the

civil rights statutes are intended to extinguish, is by designcomplex. The heavy

artillery of federal law RICO mechanisms are targeted to combat onlycomplex

organizations. United States v. Frega, 179 F.3d 793, 800 (9th Cir. 1999)). The

statement of findings that prefaces the Organized Crime Control Act of 1970 reveals

that Congress enacted RICO to redress a highly sophisticated, diversified, and

widespread activity that annually drains billions of dollars from America's economy

by unlawful conduct and the illegal use of force, fraud, and corruption using social

exploitation deriving money and power . . . increasingly used to infiltrate and


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corrupt legitimate business . . . and to subvert and corrupt our democratic processes.

The breadth of the organized crime activities in the United States weaken the

stability of the Nation's economic system, harm innocent investors and competing

organizations, interfere with free competition, seriously burden interstate and foreign

commerce, threaten the domestic security, and undermine the general welfare of the

Nation and its citizens. Congress intended RICO to supplement state laws under

which organized crime continues to grow because of defects in the evidence-

gathering process of the law inhibiting the development of the legally admissible

evidence necessary to bring criminal and other sanctions or remedies to bear on the

unlawful activities of those engaged in organized crime and because the sanctions and

remedies available to the Government are unnecessarily limited in scope and impact.

84 Stat. 922923. U.S. v. Turkette, 452 U.S. 576, 588-89 (1981). Four decades of

caselaw have confirmed Congress intent that RICO is not targeted toward mom-n-

pop backroom scams, but to inoculate erstwhile legitimate enterprises, including

unions, public corporations, mass market retailers, and public institutions such as law

enforcement, political office, and the courtsincluding one case identifying

Defendant San Diego Superior Court itself. See, e.g.,H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed. 2d 195 (1989)

(telecommunications corporations);Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S.

249, 260, 114 S. Ct. 798, 805, 127 L. Ed. 2d 99 (1994) (civil rights organizations);

Odom v. Microsoft Corp., 486 F.3d 541, 546 (9th Cir. 2007) (Microsoft Corporation

and Best Buy software retailing operations); Vierria v. California Highway Patrol,

644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009);Dow Chem. Co. v. Exxon Corp., 30 F.

Supp. 2d 673, 694 (D. Del. 1998); U.S. v. Angelilli, 660 F.2d 23 (2d Cir. 1981) (civil

courts); United States v. Frega, 179 F.3d 793 (1999) (the San Diego Superior

Court).

One civil rights conspiracy statute asserted, 42 U.S.C. 1985(1), (2), and (3) is

drafted as a single sentenceof 590 words insix paragraphs. It has been generously


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assailed by Justice John Paul Stevens as somewhat difficult to parse. Kush v.

Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983). RICO

too has been bewailed as "arcane," "tormented," "complicated," "agonizingly

difficult" and "fraught with arcane mysteries."Bryant v. Yellow Freight Sys., 989 F.

Supp. 966, 968 (N.D. Ill. 1997);Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925

F. Supp. 191, 193 (S.D.N.Y. 1996) ("arcane eccentricities of RICO jurisprudence");

Combs v. Bakker, 886 F.2d 673, 677 (4th Cir. 1989) (a "tormented statute"); Sadighi

v. Daghighfekr, 36 F. Supp. 2d 267 (D.S.C. 1999) (noting statute's "torment"); Tafflin

v. Levitt, 493 U.S. 455, 465 (1990); Cent. Distribs. of Beer [,] Inc. v. Conn., 5 F.3d

181, 184 (6th Cir. 1993) ("one of the most complex statutes ever enacted by

Congress");Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) (a complex

statute);Murray v. Midwest Real Estate Inv. Co., No. 98C1569, 1998 WL 919694,

at *2 (N.D. Ill. Dec. 30, 1998) ("exceedingly complicated").

Without doubt, the asserted statutes are complexhoned power tools to enable

citizens to combat collusion by public and private officers wielding the devastating

potential of state police power and private wealth to leverage racketeering and civil

rights crimes:

The section's purpose was to provide redress for the deprivation of civil rights.

It was recognized that certain members of the judiciary were instruments of

oppression and were partially responsible for the wrongs to be remedied. The

parade of cases coming to this Court shows that a similar condition now obtains in

some of the States. Some state courts have been instruments of suppression of

civil rights. The methods may have changed; the means may have become more

subtle; but the wrong to be remedied still exists.

Pierson v. Ray, 386 U.S. 547, 563 (1967); Gregoire v. Biddle, 177 F.2d 579, 581 (2d

Cir. 1949) (It does indeed go without saying that an official, who is in fact guilty of


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using his powers to vent his spleen upon others, or for any other personal motive not

connected with the public good, should not escape liability for the injuries he may so

cause; and, if it were possible in practice to confine such complaints to the guilty, it

would be monstrous to deny recovery.);Imbler v. Pachtman, 424 U.S. 409, 429

(1976) (This Court has never suggested that the policy considerations which compel

civil immunity for certain governmental officials also place them beyond the reach of

the criminal law. Even judges, cloaked with absolute civil immunity for centuries,

could be punished criminally for willful deprivations of constitutional rights on the

strength of 18 U.S.C. 242, the criminal analog of 1983.).

To plead to these statutes, the Complaint mustdetail the complex and diverse

duties, acts, and enterprises harming plaintiffs and impacting a wide class of U.S.

citizens numbering in the millions. The Complaint asserts 32 distinct civil causes of

action and 32 related indictable federal felonies, 27 categories of predicate crimes

and 13 RICO Claims for Relief, based on seven Schemes and Artifices to Defraud

under nine federal mail, wire, bank, and honest services fraud criminal statutes,

including related obstruction of justice, and witness tampering and retaliation. It

asserts two counts for prospective relief including a Motion for a Harassment

Restraining Order and requests to enjoin enforcement of an entire body of

unconstitutional family and criminal law. The Complaint names 49 distinct public

and private entities comprising a nationwide Domestic Dispute Industry Criminal

Enterprise (DDICE). Even counsel experienced in this rapidly-evolving body of

federal civil and criminal law would be understandably paused to comprehend the

Complaints necessary depth and complexity.

It is no fault of Defendants that, despite their relative acumen in the law, they did

not immediately grasp the gravity of the statutes posed against them. Their refusal to

pause to comprehend that message before insulting its messenger is far less innocent.


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III. CONCLUSIONDefendants have attempted to introduce immaterial, impertinent, controversial,

scandalous, and inadmissible evidence in support of a motion that cannot weigh

evidence. They have submitted a perjurous declaration and foundationless,

incomplete, and potentially fraudulent documentsvia a request for judicial notice.They have misunderstood and misrepresented capacity and standing under both

state and federal law. The have requested the wrong relief under the wrong authority.

They have refused Plaintiffs efforts toward informal resolution by withdrawal of the

errant pleadings and exhibits, and refused stipulations to resolve pleading matters

which are properly and regularly resolved by leave to amend, forcing unnecessary

pleading in opposition.

Plaintiff respectfully requests the Court strike the following as insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter under

Federal Rule of Procedure 12(f):

1. The RJN and all Exhibits thereto (II.B supra);

2. The Nesthus Declaration (II.C supra);

3. MTD IV.C (11thAmendment Immunity Affirmative Defenses) (II.D.1

supra.);

4. MTD IV.D (Judicial Immunity Affirmative Defenses) (II.D.1 supra);

5. MTD IV.E (Quasi-Judicial Immunity Affirmative Defenses) (II.D.1

supra);

6. MTD IV.B (Bucket of Mud Attack) (II.D.3 supra);

7. MTD IV.A.1 (Corporate Plaintiffs Capacity) (II.B.5 supra);


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8. MTD IV.F.1 (Immaterial and Impertinent Arguments Under Rules 12(c),

(e), (f), Rule 9(b)) (II.D.2, 3 supra).

Respectfully Submitted

DATED: November 7, 2013 By: /s/

Colbern C. Stuart, III, President,

California Coalition for Families and

Children

in Pro Se

Colbern C. Stuart, III


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have

consented to electronic service are being served with a copy of this document via the

court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other

counsel of record will be served by facsimile transmission and/or first class mail this

7th day of November, 2013.

By: /s/

Co ern C. Stuart, III, Pres ent,California Coalition for Families andChildrenin Pro Se

Colbern C. Stuart, III

19-1 ccfc mem iso mtn strike mtd

Documents