Case 3:13-cv-01944-CAB-JLB Document 183 Filed 06/02/14 Page 1 of 19

1 Colbern C. Stuart III

E-Mail: Cole.Stuart@Lexevia.com
2 4891 Pacific Highway Ste. 102
San Diego, CA 92110
3 Telephone: 858-504-0171
Facsimile: 619-231-9143
4 In Pro Se
5 Dean Browning Webb (pro hac vice)
Email: RICOman1968@aol.com
6 Law Offices of Dean Browning Webb
515 E 39th St.
7 Vancouver, WA 98663-2240
Telephone: 503-629-2176
8
Eric W. Ching, Esq. SBN 292357
9 5252 Balboa Arms Dr. Unit 132
San Diego, CA 92117
10 Phone: 510-449-1091
Facsimile: 619-231-9143
11
Attorneys for Plaintiff California Coalition for Families and Children, PBC
12
13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15
16 CALIFORNIA COALITION FOR
FAMILIES AND CHILDREN, et al.,
17
Plaintiffs,
18
v.
19
SAN DIEGO COUNTY BAR
20 ASSOCIATION, et al.,
21
22
23
24

Case No. 3:13-cv-1944-CAB (JLB)

Judge: Hon. Cathy Ann Bencivengo

PLAINTIFFS OBJECTIONS AND

MOTION TO STRIKE NEW
AUTHORITY AND ARGUMENT
SUBMITTED BY DEFENDANTS IN
REPLIES TO OMNIBUS;
ALTERNATIVE APPLICATION TO
Defendants SUBMIT SUR-REPLY
Date: June 6, 1014
Time: 2:00 p.m.
Courtroom: 4C

25

ORAL ARGUMENT REQUESTED

SUBJECT TO COURT APPROVAL

26

Complaint Filed: August 20, 2013

27
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2
3
4

CONTENTS
I.

OBJECTION AND MOTION TO STRIKE NEW AUTHORITY......................... 1

5 II. AUTHORITY .......................................................................................................... 1

6 III. DISCUSSION.................. ........................................................................................2
7
8
9
10

A. OMNIBUS/SAN DIEGO COUNTY BAR ASSOCIATION .............................. 2

B. DOYNE, DOYNE, INC. ...................................................................................... 3
C. JUDICIAL DEFENDANTS ................................................................................. 6

11

D. LAWYER DEFENDANTS ................................................................................ 11

12

E. LOVE/CORRIGAN & LAWYER DEFENDANTS ......................................... 12

13 IV.
14

CONCLUSION .................................................................................................. 14

15
16
17
18
19
20
21
22
23
24
25
26
27
28
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2

CASES

3 Ashcroft v. Iqbal, 556 U.S. 662, 664, (2009) ............................................................... 13

4 Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) ............................. 10
5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007) ........................................ 13
6 Boyle v. United States, 556 U.S. 938, 948 (2009) ......................................................... 6
7 Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989) ....................................... 12
8 Carr v. OLeary, 167 F.3d 1124, 1127 (7th Cir. 1999) ............................................... 10
9 Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010) ........................................ 9
10 CrawfordEl v. Britton, 523 U.S. 574 (1998) ............................................................. 12
11 Csibi v. Fustos, 670 F.2d 134, (9th Cir. 1982) .............................................................. 4
12 Davis v. Powell, 901 F.Supp.2d 1196, 1217 (S.D. Cal. 2012) .................................... 12
13 Edwards v. Balisok, 520 U.S. 641 (1997) ...................................................................... 8
14 Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) ................... 12
15 Harden v. Pataki, 320 F.3d 1289 (11th Cir. 2003) ........................................................ 9
16 Harris v. Roderick, 126 F.3d 1189, 119596 (9th Cir.1997) ...................................... 12
17 Heck v. Humphrey 512 U.S. 477, 484 (1994) ................................................................ 7
18 Huang ex rel. Yu v. Johnson, 251 F.3d 65 (2d Cir. 2001) ........................................... 10
19 In re Ames Dept. Stores, Inc., 76 F.3d 66, 70 (2d Cir.1996) ......................................... 2
20 Jackson v. Beckham, 217 Cal.App.2d 264 (1963); ...................................................... 11
21 Jaffe v. Stone, 18 Cal.2d 146 (1941) ............................................................................ 10
22 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951) .................. 2
23 Lackner v. LaCroix, 25 Cal.3d 747 (1979) .................................................................. 10
24 Lantzy v. Centex Homes, 31 Cal.4th 363, 370-371 (2003). ........................................... 2
25 Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 168 (1993) ........................................................................................................ 12
26
27 Lee v. Gates, CV 03-03126-GAF, 2005 WL 67087 (C.D. Cal. Jan. 10, 2005) ............. 2
28 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ........................................................... 2
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1 Minasian v. Sapse, 80 Cal.App.3d 823 (1978) ............................................................ 11

2 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978)..................... 6
3 Monroe v. Pape, 365 U.S. 167, 169 (1961) ................................................................... 6
4 Muhammad v. Close, 540 U.S. 749 (2004). ................................................................... 9
5 Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002).............................................. 9
6 Oglesby v. McEwen, 2013 WL 4517839 (S.D. Cal. Aug. 22, 2013) ........................... 12
7 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir. 2004) ................... 12
8 Powers v. Hamilton Cnty. Pub. Defender Commn, 501 F.3d 592 (6th Cir. 2007) ...... 9
9 Preiser v. Rodriguez, 411 U.S. 475 (1973) .................................................................... 8
10 Spencer v. Kemma, 523 U.S. 1, 19 (1998) ................................................................. 7, 9
11 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)..................................................... 12
12 Wilson v. Garcia, 471 U.S. 261 (1985) ......................................................................... 4
13 Wilson v. Johnson, 535 F.3d 262, 268 (4th Cir. 2008) .................................................. 9
14
15

STATUTES

16 28 U.S.C. 1331 ............................................................................................................ 5

17 28 U.S.C. 1332 ........................................................................................................ 4, 5
18 28 U.S.C. 1343 ............................................................................................................ 6
19 28 U.S.C. 2254(a) ....................................................................................................... 8
20 42 U.S.C. 1983 ............................................................................................................ 9
21 Cal. Pen. Code 136.2................................................................................................. 5
22
23
24

CONSTITUTIONAL PROVISIONS
U.S. Const. Amend V..................................................................................................... 2

25
26
27
28
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I.

2
3
4
5
6
7
8
9

OBJECTION AND MOTION TO STRIKE NEW

AUTHORITY/ARGUMENT

Plaintiffs California Coalition for Families and Children, PBC and Colbern Stuart
hereby object to and move to strike the specific citations to new authority and
argument based thereon contained in certain Defendants Replies to Omnibus Motion
to Dismiss (Doc. Nos. 167-181). In the alternative, Plaintiffs request leave to
supplement their Opposition (Doc. No. 161) with this sur-reply limited to the specific
new matter. 1
II.

10

AUTHORITY

Several Reply Memoranda submitted in support of the Omnibus Motion cited

11

12 new authority or arguments not submitted in original Omnibus or Joinder

13 memoranda. Because the Omnibus requests a sanction of dismissal under Fed. R.Civ.
14 P. 41(b), Plaintiffs submit these objections and sur-reply as a matter of right. [D]ue
15 process requires that courts provide notice and opportunity to be heard before
16 imposing any kind of sanctions. In re Ames Dept. Stores, Inc., 76 F.3d 66, 70 (2d
17 Cir.1996) (emphasis in original); Lee v. Gates, CV 03-03126-GAF, 2005 WL 67087
18 (C.D. Cal. Jan. 10, 2005) (Under any sanctions theory, the attorney should be given
19 notice of the sanctionable conduct and an opportunity to be heard.). The
20 fundamental requirement of due process is the opportunity to be heard at a
21 meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319,
22 333 (1976); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164
23 (1951); U.S. Const. Amend V (No person shall . . . be deprived of life, liberty, or
24 property, without due process of law.).
25
26
27
28

Plaintiffs offer only limited sur-reply to new matter, and by refraining from a more thorough
sur-reply do not concede points not herein addressed.

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2
3
4

III.

DISCUSSION

A. OMNIBUS/SAN DIEGO COUNTY BAR ASSOCIATION

(Doc. No. 181)
1. Lantzy v. Centex Homes: Defendant San Diego County Bar Association,

5 responding for all Omnibus Defendants, asserts that tolling or estoppel are
6 unavailable under the California Supreme Court case of Lantzy v. Centex Homes, 31
7 Cal.4th 363, 370-371 (2003). Lantzy involved Californias ten year statute of repose
8 for suits for construction defect claims based upon latent defects to improvements to
9 real property, California Code of Civil Procedure 337.15, which provides:
10

(a) No action may be brought to recover damages from any person, or the

11

surety of a person, who develops real property or performs or furnishes the

12

design, specifications, surveying, planning, supervision, testing, or observation

13

of construction or construction of an improvement to real property more than

14

10 years after the substantial completion of the development or improvement

15

for any of the following:(1) Any latent deficiency in the design, specification,

16

surveying, planning, supervision, or observation of construction or construction

17

of an improvement to, or survey of, real property.(2) Injury to property, real or

18

personal, arising out of any such latent deficiency.

19 The California Supreme Court explained the statute of repose concept as distinct
20 from a statute of limitations concept in Lantzy:
21

Thus the Legislature, faced with a developing body of common law on the

22

subject, carefully considered how to provide a fair time to discover

23

construction defects, and to sue upon such defects if necessary, while still

24

protecting a vital industry from the damaging consequences of indefinite

25

liability exposure. For latent deficiencies, the lawmakers rejected shorter

26

periods in favor of a limit in the upper range of those previously adopted by

27

other jurisdictions. Moreover, by placing exemptions in the latent defect statute

28

for personal injury, willful misconduct, and fraudulent concealment, the

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legislators demonstrated an intent to pick and choose the particular exceptions

they wished to allow and those particular aspects of the prior case law they

wished to embrace. The implication arises that except as stated, and for

important policy reasons, the Legislature meant the generous 10year period

set forth in section 337.15 to be firm and final.

6 Lantzy at 377. [T]he purpose of section 337.15 is to protect contractors and other
7 professionals and tradespeople in the construction industry from perpetual exposure
8 to liability for their work. The statute reflects a legitimate concern that expanding
9 concepts of liability could imperil the construction industry unless a statute of
10 limitations was enacted. Such concerns legitimately include the prohibitive cost of
11 insurance against a perpetual and never ending risk. Id. at 374 (internal citations
12 omitted).
13

Plainly this is not a construction defect action. The absolute cut-off rationale

14 of a repose statute is distinct from the statute of limitations present here. Tolling
15 principles relevant to a state construction defect statute of repose are not relevant to
16 the federal racketeering or civil rights claims here.
17
18

B. DOYNE, DOYNE, INC. (Doc. No. 168)

1. Wilson v. Garcia: DOYNE, INC. cites and analyzes under new authority,

19 Wilson v. Garcia, 471 U.S. 261 (1985) at Doc. No. 168, 1:7-17. Wilson was a 1983
20 claim for the personal injuries [plaintiff] suffered which were caused by the acts and
21 omissions of the [petitioners] acting under color of law. Id. at 263. Plaintiff brought
22 the claim under the Fourth, Fifth, and Fourteenth Amendments claiming only
23 personal injury. Plaintiff alleged New Mexicos residual four year statute of
24 limitations should apply. Defendants alleged New Mexicos shorter two year Tort
25 Claims Act statute of limitations period should apply. Id. The Court held that the
26 shorter two year statute was the most closely analogous statute under the
27 circumstances. Wilson was published in 1985, prior to the 1987 Agency Holding
28 case relied on by Plaintiffs in the Opposition, holding that a district court may decline
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1 to borrow state law when the applicable state limitations period would have
2 frustrated the policy of the federal statute, concluding that in such a case no
3 limitations period governs the suit. Oppo., Doc. No. 161, 29:9-30:25.
4

2. Csibi v. Fustos: DOYNE, INC. cites and analyzes under new authority,

5 Csibi v. Fustos, 670 F.2d 134, (9th Cir. 1982) at Doc. No. 168, 6:6:9-8:5. DOYNE,
6 INC. asserts that Csibi expands the Domestic Relations Exception to federal
7 diversity jurisdiction to exclude this Action. Csibi, like all other cases involving a
8 Domestic Relations Exception was a diversity action brought under 28 U.S.C.
9 1332 involving competing claims of two women, both of whom claimed to be heirs to
10 a decedents estate by virtue of their being his wife at the time of his death. The
11 district court found that the case turns on a determination of the marital status of [the
12 two wife/litigants and the decedent] and that because plaintiff/wifes prayer for
13 relief is a request for an annulment of defendant wifes marriage to the decedent, the
14 primary issue in the instant case concerns the status of husband and wife, and federal
15 courts lack subject-matter jurisdiction under the test announced in Buechold.
16

Csibi, like Beuchold, is inapposite here for the same reasons detailed in the

17 Opposition: No plaintiff here asserts diversity jurisdiction, but federal question and
18 pendant jurisdiction. See Oppo., Doc. No. 161, 151:5-152:15. DOYNE INC.S
19 references to state pendant claims against him for fraud, extortion, bribery, unfair
20 competition, are federal law claims properly and exclusively present under 28 U.S.C.
21 1331, and all state law business torts are properly present under pendant jurisdiction
22 under 28 U.S.C. 1332. No plaintiff here asserts remedies under state domestic
23 relations law, and no issue to be resolved in this case will depend upon resolution of a
24 domestic relations issue relevant in Stuart v. Stuart, which involved only child
25 custody and spousal support. See Oppo., Doc. No. 161, 151:5-152:15.
26

DOYNE, INC. attempts to convert this Action into a domestic dispute by

27 asserting that STUART seeks relief from an order of a domestic court. This is
28 untrue. The Domestic Violence Intervention Legislative Scheme (DVILS) and its
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1 form restraining orders are criminal protective orders, one set of which is adapted for
2 use in Family Court. See, FAC 417(b), 438, 462, 464 (These DVILS ORDERS
3 are themselves illegal and unconstitutionally vague and overbroad. The several
4 DVILS ORDERS are founded on a form prepared and made mandatory by
5 Defendant Judicial Council; form CR-160, 964-966; Cal. Pen. Code 136.2,
6 1203.097(a), 273.5(i), 646.9(k); forms CR-160 (entitled Criminal Restraining Order,
7 Judicial Council Form 160) (Ex. 35). STUART is presently deprived of liberty
8 under the criminal version of order until about May, 2015. Plaintiffs seek
9 prospective relief declaring the criminal and domestic versions of the order forms and
10 statutes authorizing them unconstitutional. This relief is in the form of an attack on
11 the validity of a statute under the Constitution of the United Statesnot an attack on
12 a specific issued Order of a domestic court. To the extent DOYNE INC. asserts
13 Csibi for the proposition that United States Courts somehow lack original jurisdiction
14 to determine validity of state laws in conflict with superior federal law, the
15 proposition has been error for over a century. 28 U.S.C. 1343 provides:
16

(a) The district courts shall have original jurisdiction of any civil action

17

authorized by law to be commenced by any person: . . . (3) To redress the

18

deprivation, under color of any State law, statute, ordinance, regulation, custom

19

or usage, of any right, privilege or immunity secured by the Constitution of the

20

United States or by any Act of Congress providing for equal rights of citizens

21

or of all persons within the jurisdiction of the United States

22 See also, Monroe v. Pape, 365 U.S. 167, 169 (1961) overruled on other grounds by
23 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
24

3. New Enterprise Attack: DOYNE, INC. asserts a new attack that The

25 amended complaint does not set forth any common purpose in which the defendants
26 are engaged-to the contrary, participants in the family law system often fulfill
27 adversarial roles. Likewise, the amended complaint fails to set forth an ongoing
28 organization. Doc. No. 168, 10:2-6. DOYNE, INC. did not assert this attack in his
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1 joinder. The FAC does set forth both common purpose and ongoing organization
2 relating to DOYNE, INC. and DOYNE. See discussion at Oppo. 161, 99:1-101:20.
3

To the extent that DOYNE, INC. asserts that the Family Law System is not an

4 enterprise, but merely cars on a freeway or shoppers in a store (Doc. No. 168,
5 10:10-11), he is entitled to make that case upon presence of a trier of fact. U.S.
6 Const., Amend. VII. That attorneys within the Family Law System occasionally have
7 interests adverse to one another does not erode their common purpose in
8 conducting the enterprise. See, e.g., Boyle v. United States, 556 U.S. 938, 948 (2009)
9 (decisions may be made on an ad hoc basis and by any number of methodsby
10 majority vote, consensus, a show of strength, etc.). Upkeep of this appearance of
11 adversity is in fact one of the schemes to defraud. See Poser Advocacy, False
12 Flag schemes. FAC 948, 957, 961, 985, 984-986, 988-990, 996, Racketeering
13 Count 2 (Honest Services Fraud) 1034-1036. Quintessential racketeers such as
14 such as the mafia and drug lords are not known for their internal tranquility, and even
15 the best-behaved criminals might have occasion to disagree on means of splitting up
16 the loot. Present defendants shed less blood, but are no less guilty in their coordinated
17 direction of racketeering through fraud and extortion schemes toward one of their
18 common purposes: enriching their practices. FAC 756.
19

C. JUDICIAL DEFENDANTS (Doc. No. 170)

1. Heck v. Humphrey: JUDICIAL DEFENDANTS cite and analyze under new

20

21 authority to them,2 Heck v. Humphrey 512 U.S. 477, 484 (1994). Doc. No. 170, 2:322 17. JUDICIAL DEFENDANTS assert that the FAC must plead termination of the
23 prior criminal proceeding in favor of the accused. Doc. No. 170, 2:12. This is false
24 for two reasons. First, the FAC does plead termination of the People v. Stuart matter
25 in favor of STUART. Doc. No. 90, 416. The favorable termination issue relevant
26 to CITY ATTORNEY DEFENDANTS is analyzed at Oppo. Doc. No. 161, 120:4-22
27

CITY ATTORNEY DEFENDANTS did cite and analyze under Heck at Doc. No. 151, 7:2128 8:21; Plaintiffs Opposed CITY ATTORNEY DEFENDANTS analysis at Doc. No. 161, 120:4-22.
Plaintiffs re-assert that analysis here.

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1 and relevant here. Second, the interpretation of Heck as imposing a favorable

2 termination requirement has been refined to apply only to Plaintiffs who are
3 wrongfully imprisoned. The favorable termination confusion is described by
4 Justice Souter in Spencer v. Kemma, 523 U.S. 1, 19 (1998) (Souter, J., joined by
5 Breyer, J., Ginsberg, J, OConnor, J., concurring):
6

To be sure, the majority opinion in Heck can be read to suggest that this

favorable-termination requirement is an element of any 1983 action alleging

unconstitutional conviction, whether or not leading to confinement and whether

or not any confinement continued when the 1983 action was filed. Heck v.

10

Humphry, 512 U.S., at 483484, 486487. Indeed, although Heck did not

11

present such facts, the majority acknowledged the possibility that even a

12

released prisoner might not be permitted to bring a 1983 action implying the

13

invalidity of a conviction or confinement without first satisfying the favorable-

14

termination requirement. Id., at 490, n. 10. Concurring in the judgment in

15

Heck, I suggested a different rationale for blocking an inmate's suit with a

16

requirement to show the favorable termination of the underlying proceedings.

17

In the manner of Preiser v. Rodriguez, 411 U.S. 475 (1973), I read the

18

general 1983 statute in light of the specific federal habeas statute, which

19

applies only to persons in custody, 28 U.S.C. 2254(a), and requires them to

20

exhaust state remedies, 2254(b). Heck v. Humphry, 512 U.S., at 497. I agreed

21

that the statutory scheme must be read as precluding such attacks, id., at 498,

22

not because the favorable-termination requirement was necessarily an element

23

of the 1983 cause of action for unconstitutional conviction or custody, but

24

because it was a simple way to avoid collisions at the intersection of habeas

25

and 1983. Ibid. I also thought we were bound to recognize the apparent

26

scope of 1983 when no limitation was required for the sake of honoring some

27

other statute or weighty policy, as in the instance of habeas. Accordingly, I

28

thought it important to read the Court's Heck opinion as subjecting only

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inmates seeking 1983 damages for unconstitutional conviction or

confinement to a requirement analogous to the malicious-prosecution tort's

favorable-termination requirement, id., at 500, lest the plain breadth of 1983

be unjustifiably limited at the expense of persons not in custody within the

meaning of the habeas statute. The subsequent case of Edwards v. Balisok, 520

U.S. 641 (1997), was, like Heck itself, a suit by a prisoner and so for present

purposes left the law where it was after Heck. Now, as then, we are forced to

recognize that any application of the favorable-termination requirement to

1983 suits brought by plaintiffs not in custody would produce a patent

10

anomaly: a given claim for relief from unconstitutional injury would be placed

11

beyond the scope of 1983 if brought by a convict free of custody (as, in this

12

case, following service of a full term of imprisonment), when exactly the same

13

claim could be redressed if brought by a former prisoner who had succeeded in

14

cutting his custody short through habeas.

15
16

The better view, then, is that a former prisoner, no longer in custody, may

17

bring a 1983 action establishing the unconstitutionality of a conviction or

18

confinement without being bound to satisfy a favorable-termination

19

requirement that it would be impossible as a matter of law for him to satisfy.

20

Thus, the answer to Spencer's argument that his habeas claim cannot be moot

21

because Heck bars him from relief under 1983 is that Heck has no such

22

effect. After a prisoner's release from custody, the habeas statute and its

23

exhaustion requirement have nothing to do with his right to any relief.

24 Spencer v. Kemna, 523 U.S. 1, 19-21 (1998) (internal parallel citations omitted). See
25 also Muhammad v. Close, 540 U.S. 749 (2004).
26

Justice Souters articulation of Hecks favorable-termination rule is followed

27 in this Circuit. See Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002) ([g]iven
28 the Courts holding that petitioner does not have a remedy under the habeas statute, it
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1 is perfectly clear . . . that he may bring an action under 42 U.S.C. 1983.). Other
2 Circuits also follow. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010)
3 (holding plaintiff released from custody had no habeus remedy and thus Heck
4 inapplicable). Wilson v. Johnson, 535 F.3d 262, 268 (4th Cir. 2008) (holding that the
5 sweeping breadth, high purposes, and unique[ness] of 1983 would be
6 compromised if it were not applied to plaintiffs lacking habeas relief (quoting
7 Wilson v. Garcia, 471 U.S. 261, 272 (1985))), appeal denied, 353 F. Appx 837 (4th
8 Cir. 2009), cert. denied, 131 S. Ct. 71 (2010); Powers v. Hamilton Cnty. Pub.
9 Defender Commn, 501 F.3d 592 (6th Cir. 2007) (holding that because the plaintiff
10 was challenging the procedures that incarcerated him, and not his actual
11 incarceration, the Heck favorable-termination requirement did not apply), cert.
12 denied, 129 S. Ct. 44 (2008); Harden v. Pataki, 320 F.3d 1289 (11th Cir. 2003)
13 (holding that Heck does not bar a plaintiff seeking relief under 1983 for violations
14 of his extradition rights as a prisoner); Huang ex rel. Yu v. Johnson, 251 F.3d 65 (2d
15 Cir. 2001) (holding that a plaintiff lacking a habeas remedy may attack the duration
16 of his incarceration by seeking 1983 relief); Carr v. OLeary, 167 F.3d 1124, 1127
17 (7th Cir. 1999) (holding that [t]he dictum in Spencer v. Kemna casts sufficient doubt
18 on the applicability of Heck to entitle a plaintiff without habeas relief from pursuing
19 relief under 1983).
20

Under the controlling authority of Spencers plurality, Muhammad, and

21 Nonette, Heck is read as simply a requirement that imprisoned Plaintiffs may not
22 bypass habeus remedies, if then available, before seeking relief under section 1983.
23 As STUART is no longer imprisoned, he has no habeus standing, and Heck is no bar
24

2. Awabdy v. City of Adelanto: JUDICIAL DEFENDANTS cite and analyze

25 under new authority of See also Awabdy v. City of Adelanto, 368 F.3d 1062, 1068
26 (9th Cir. 2004) for the same favorable termination proposition. Awabdy actually
27 supports that Plaintiffs malicious prosecution cause of action is not barred by Heck
28
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1 because STUART was acquitted of stalking and harassment by telephone charges

2 (See FAC 416, Oppo. at 120:20-22):
3

Nor is Awabdy's malicious prosecution claim foreclosed because the prior

criminal proceedings concluded when the Superior Court granted a motion by a

deputy District Attorney to dismiss the embezzlement charge in the interests of

justice. An individual seeking to bring a malicious prosecution claim must

generally establish that the prior proceedings terminated in such a manner as to

indicate his innocence. Heck, 512 U.S. at 484-85, 114 S.Ct. 2364; Lackner v.

LaCroix, 25 Cal.3d 747 (1979); Jaffe v. Stone, 18 Cal.2d 146 (1941). Similar to

10

other terminations short of a complete trial on the merits, a dismissal in the

11

interests of justice satisfies this requirement if it reflects the opinion of the

12

prosecuting party or the court that the action lacked merit or would result in a

13

decision in favor of the defendant. Minasian v. Sapse, 80 Cal.App.3d 823

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(1978); Jackson v. Beckham, 217 Cal.App.2d 264 (1963); De LaRiva, 61

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Cal.Rptr. at 296. When such a dismissal is procured as the result of a motion by

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the prosecutor and there are allegations that the prior proceedings were

17

instituted as the result of fraudulent conduct, a malicious prosecution plaintiff

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is not precluded from maintaining his action unless the defendants can

19

establish that the charges were withdrawn on the basis of a compromise among

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the parties or for a cause that was not inconsistent with his guilt.

21 Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) (internal parallel
22 citations omitted).
23

3. New Standing Attack: JUDICIAL DEFENDANTS misrepresent the

24 Opposition, claiming Plaintiffs sole argument regarding this standing requirement is

25 that Stuart and others are under illegal domestic violence restraining orders or in
26 jeopardy of becoming subject to such orders. (Doc. No. 161 at 148:26-149:4.) This
27 is untrue. Plaintiffs standing is much broader than past, present and future jeopardy
28 under criminal and domestic DVILS ORDERS. Against JUDICIAL DEFENDANTS
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1 the FAC also asserts standing by virtue of STUART and California Coalition
2 members, affiliates, and those similarly situated, i.e., Families3 for past and ongoing
3 victimization by the fraud, extortion, deprivation, and violence perpetrated by
4 JUDICIAL DEFENDANTS as part of the Family Law System. So long as Families
5 are forced to seek resolution of domestic dispute matters within domestic relations
6 courts and at unequal jeopardy for prosecution in state criminal courts, they are
7 presently and in the future at outrageous unequal jeopardy for deprivation of
8 fundamental rights and equal protection of the laws by JUDICIAL DEFENDANTS
9 and their municipal level colleagues statewide as key conductors of the various SAD
10 acting in enterprise and conspiracy Plaintiffs are presently and will be subject to such
11 forced processes constituting heinous, intentional, and malicious oppression and
12 crime today and so long as they remain members of any EQUAL PROTECTION
13 CLASS.
D. LAWYER DEFENDANTS (Doc. No. 173)

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1. Olsen v. Idaho State Bd. of Medicine: LAWYER DEFENDANTS persist

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16 to assert a heightened pleading standard for conspiracy claims despite the

17 abrogation of all authority articulating that standard in Galbraith v. Cnty. of Santa
18 Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). See Oppo. Doc. No. 161, 81:17-28.
19 They assert new authority and analysis for their claim that The heightened pleading
20 standard for claims alleging a conspiracy to violate constitutional rights is still the
21 law. They assert: To state a claim for conspiracy to violate constitutional rights,
22
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For present purposes, ones Family shall include those relationships defined under California
law as . . . an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or
person with whom [one] has had a child or is having or has had a dating or ENGAGEMENT
relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living
together for a substantial period of time, resulting in some permanency of relationship. Factors that
may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations
between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife,
(5) the continuity of the relationship, and (6) the length of the relationship. Cal. Fam. C. 6211,
Pen. C. 13700. Family includes grand-relations. Troxel v. Granville, 530 U.S. 57 (2000). See
FAC 777-781.

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1 the plaintiff must state specific facts to support the existence of the claimed
2 conspiracy. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir. 2004)
3 (quoting Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989)) (discussing
4 conspiracy claim under 1985). Doc. No. 174, 5:5-17. They also assert new
5 authority for the same analysis through Davis v. Powell, 901 F.Supp.2d 1196, 1217
6 (S.D. Cal. 2012) (citing Olsen, 363 F.3d at 929; Burns, 883 F.2d at 821; Harris v.
7 Roderick, 126 F.3d 1189, 119596 (9th Cir.1997)); and Oglesby v. McEwen, 2013
8 WL 4517839 (S.D. Cal. Aug. 22, 2013). Doc. No. 174, 5:25-28.
9

There is no controversy that the heightened pleading standard for section

10 1983 claims is a long-dead horse. It was abrogated in CrawfordEl v. Britton, 523

11 U.S. 574 (1998) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). See also
12 Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
13 163, 168 (1993) (We think that it is impossible to square the heightened pleading
14 standard applied by the Fifth Circuit in this case with the liberal system of notice
15 pleading set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include
16 only a short and plain statement of the claim showing that the pleader is entitled to
17 relief.).
18

Today, instead of heightened pleading Plaintiffs must plead plausible

19 claims. See, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007); Ashcroft v.
20 Iqbal, 556 U.S. 662, 664, (2009); Oppo. 161, 10:3-13:2. To assert an attack on
21 claims Defendants believe to be implausible, they must traverse the Moss I multi22 stage analysis. Id. Defendants have failed to do so, and the Omnibus and Joinders
23 may be denied for this reason alone.
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25
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E. LOVE/CORRIGAN (Doc. No. 167)

& LAWYER DEFENDANTS (Doc. No. 173)
Defendants LOVE and CORRIGAN and LAWYER DEFENDANTS for the

27 first time offer a calculation of the period of limitations not previously offered in their
28 moving papers. They did not attack the FACs calculation of dates of imprisonment
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1 in their original moving papers, but offer an erroneous calculation in Reply. In so

2 doing they misrepresent the length and periods of time during which STUART was
3 falsely imprisoned.
4

LAWYER DEFENDANTS at Doc. No. 174, 2-3; CORRIGAN at Doc. No.

5 167, 6, fn. 6 offer: the period of time plaintiff alleges he was incarcerated or
6 imprisoned is at most 93 days.6 This calculation omits the 422 day
7 (approximately fourteen months) time period of FALSE IMPRISONMENT 6
8 described at at FAC 453: STUART was imprisoned by GORE, who knew or
9 should have known of the malicious and retaliatory nature of the prosecution until
10 release on May 15, 2013. Such constitutes a false imprisonment for approximately
11 fourteen months (FALSE IMPRISONMENT 6).
12

The FAC offered a total period of physical confinement of STUART in the

13 custody of GORE of approximately 522 days. (FAC 384, 392, 398, 402, 421,
14 453). The FAC identified STUARTS confinement under suspended sentence and
15 illegal criminal restraining orders from May 9, 2011 until April 10, 2012, for 288
16 days. FAC 461-466. The total period of physical confinement (imposed or
17 suspended sentence) of STUART offered in the FAC was 810 days. Id. STIART
18 remains under deprivation of liberty by orders imposed by GROCH, C.
19 GOLDSMITH, and COUNTY by two protective orders, one expiring in about May,
20 2015 and a second expiring in about May, 2022. FAC 465.
21

Defendants mis-calculate the time period of FALSE IMPRISONMENT 1:

22 Plaintiffs false imprisonment number one occurred as a result of an April 6, 2010

23 pre seminar arrest for ten hours (FAC 379-384). The FAC does not identify
24 FALSE IMPRISONMENT 1 to be pre-seminar, or April 6, 2010. The FAC does
25 not identify the date of FALSE IMPRISONMENT 1 at all. The April 6, 2010 date
26 was the date of GARSON PERJURY ONE: On about April 6, 2010, GARSON
27 caused to be filed a second perjurous Declaration In Support of Arrest Warrant
28 relating to People v. Stuart containing similar false statements and misrepresentations
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1 based upon the same purported evidence. This documents is filed, though not
2 authenticated, in this matter at Dkt#16-1, Ex. A. FAC 379.
3
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5
6
7
8
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IV.

CONCLUSION

Defendants had full notice and opportunity to present argument and authority
on these issues in their Omnibus and Joinders. Plaintiffs object and move to strike all
authority and argument cited above as improperly noticed. In the event the Court will
consider such late authority and argument over Plaintiffs objection and motion to
strike, Plaintiffs hereby request leave to supplement the Opposition (Doc. No. 161)
with the authority and rebuttal provided herein.

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Respectfully Submitted

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DATED: June 2, 2014

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17

By: /s/

Colbern C. Stuart III

Colbern C. Stuart, III, President,

California Coalition for Families and
Children, PBC
in Pro Se

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19 DATED: June 2, 2014
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By: /s/

Dean Browning Webb

DEAN BROWNING WEBB

ATTORNEYS AND COUNSELORS AT
LAW FOR PLAINTIFF:
COALITION FOR FAMILIES and
CHILDREN, PBC, a Delaware Corporation

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1
2

CERTIFICATE OF SERVICE

3
4 The undersigned hereby certifies that all counsel of record who are deemed to have
5 consented to electronic service are being served with a copy of this document via the
6 court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other
7 counsel of record will be served by facsimile transmission and/or first class mail this
8 2nd day of June, 2014.
9
By: /s/

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Colbern C. Stuart III

Colbern C. Stuart, III, President,

California Coalition for Families and
Children, PBC
in Pro Se

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