WestlawNext 49 Full Text Items For Advanced Lisa 3 Schall and San Diego

Verified Complaint for 1.
Violations of The Civil Rights Act of 1964

(42 U.S.C. 1983, 1985, 1986); 2. Racketeering and Corrupt
Organizations Act of 1970 (18 U.S.C. 1962); 3. Delaratory
Judgment (28 U.S.C. 2201); 3. False Advertising (15 U.S.C. 1125);
4. Motion for Harassment Protective Order (18 U.S.C. 1514(b))
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN., a Delaware Corporation, Lexevia, PC, a
California Professional Corporation, and Colbern C. Stuart, an individual, Plaintiffs, v. SAN DIEGO COUNTY BAR
ASSOCIATION, a California Corporation; San Diego County Sheriffs Department, a municipal entity; William D.
Gore, an individual, County of San Diego, a municipal entity; Superior Court of San Diego County, a municipal
entity; Robert J. Trentacostsa, an | United States District Court, S.D. California.
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Lisa Schall Trial Court Documents
2013 Thomson Reuters. No claim to original U.S. Government Works.
CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...
2013 WL 4479840 (S.D.Cal.) (Trial Pleading)

United States District Court, S.D. California.
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN., a Delaware Corporation, Lexevia, PC, a
California Professional Corporation, and Colbern C. Stuart, an individual, Plaintiffs,
v.
SAN DIEGO COUNTY BAR ASSOCIATION, a California Corporation; San Diego County Sheriffs Department, a
municipal entity; William D. Gore, an individual, County of San Diego, a municipal entity; Superior Court of
San Diego County, a municipal entity; Robert J. Trentacostsa, an individual; Michael Roddy, an individual;
Judicial Council, a municipal entity; Administrative Office of the Courts, a municipal entity; Tani G.
Cantil-Sakauye an individual; Commission on Judicial Performance, a municipal entity; Lawrence J. Simi, an
individual; Brad Batson, an individual; National Family Justice Center Alliance, a California Corporation; Lisa
Schall, an individual; Lorna Alksne, an individual; Off Duty Officers, Inc., a business entity of unknown form;
Christine Goldsmith, an individual; Jeannie Lowe, an individual; William McAdam, an individual; Edlene
McKenzie, an individual; Joel Wohlfeil, an individual; Carole Baldwin, an individual; Laury Baldwin, an
individual; Baldwin and Baldiwn, a California professional corporation; Larry Corrigan, an individual; William
Hargraeves, an individual; Hargraeves & Taylor, PC, a California Professional Corporation; Terry Chucas, an
individual; Meridith Levin, an individual; Allen Slattery, Inc., a California Corporation, a Corporation; Janis
Stocks, an individual; Stocks & Colburn, a California professional corporation; Dr. Stephen Doyne, an
individual; Dr. Stephen Doyne, Inc., a professional corporation; Susan Griffin, an individual; Dr. Lori Love, an
individual; Love and Alvarez Psychology, Inc., a California corporation; Robert A. Simon, Ph.D, an individual;
American College of Forensic Examiners Institute, a business entity of unknown form; Robert OBlock, an
individual; Lori Clark Viviano, an individual; Law Offices of Lori Clark Viviano a business entity of unknown
form; Sharon Blanchet, an individual; Ashworth, Blanchet, Kristensen, & Kalemenkarian, a California
Professional Corporation; Marilyn Bierer, an individual; Bierer and Associates, a California Professional
Corporation; Jeffrey Fritz, an individual; Basie and Fritz, a professional corporation, Defendants.
No. 13CV1944 DMS BLM.
August 20, 2013.
Demand for Jury Trial
Verified Complaint for 1. Violations of The Civil Rights Act of 1964 (42 U.S.C. 1983, 1985, 1986); 2. Racketeering
and Corrupt Organizations Act of 1970 (18 U.S.C. 1962); 3. Delaratory Judgment (28 U.S.C. 2201); 3. False
Advertising (15 U.S.C. 1125); 4. Motion for Harassment Protective Order (18 U.S.C. 1514(b))
Colbern C. Stuart III, E-Mail: Cole.Stuart@Lexevia.com, 4891 Pacific Highway Ste. 102, San Diego, CA 92110, Telephone:
858-504-0171, Facsimile: 619-231-9143, Dean Browning Webb (pro hac vice pending), Email: ricoman1968@aol.com, Law
Offices of Dean Browning Webb, 515 E 39th St., Vancouver, WA 98663-2240, Telephone: 503-629-2176, Attorney for
Plaintiffs California Coalition for Families and Children, Inc. and Lexevia, PC.
Plaintiffs, California Coalition for Families and Children, Inc., Lexevia, PC, and Colbern C. Stuart allege as follows:
I. JURISDICTION
1. This Court has jurisdiction pursuant to the following statutes:
A. Federal Question Jurisdiction: Title 28 United States Code 1331;
B. Federal Regulation of Commerce Jurisdiction: Title 28 United States Code 1337;
C. Federal Supplemental Jurisdiction: Title 28 U.S.C. 1367(a);

D. Federal Declaratory Judgment Act of 1946: Title 28 United States Code 2201-2202;
E. Federal Supplemental Jurisdiction: Title 28 United States Code 1367(a)-(b);
F. Section 1964(a) of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) Title 18 United States Code
1964(a), (b), (c), and (d);
G. RICO 18 U.S.C. 1965(a), (b), and (d); and
H. Rules 57 and 65 of the Federal Rules of Civil Procedure; and
I. The general legal and equitable powers of this Court.
2. Venue is proper under 28 U.S.C. 1391(b) as one or more Defendants are located or reside in this District, and a
substantial part of the events and omissions giving rise to Plaintiffs claims occurred in this District.
II. PARTIES
3. Plaintiff Colbern C. Stuart III (STUART) is a citizen of the United States and at all times relevant hereto a citizen of the
state of California, an attorney at law licensed and admitted to practice in the states of California, Arizona, and Nevada, and
certain United States District Courts therein, President and CEO of Plaintiffs CCFC and LEXEVIA, and residing and doing
business in this District.
4. Defendant San Diego County Bar Association (SDCBA) is a corporation organized and existing under the laws of the State
of California, doing business in this District as an association to support, facilitate, and coordinate the San Diego County
legal industry. The SDCBA is the regions oldest and largest law-related organization. The voice for San Diegos diverse
legal community, the SDCBA aims to support and inform the countys lawyers, but also the public and the community.
Programs help clients find qualified lawyers, resolve disputes and educate San Diegans on their legal rights and
responsibilities. The SDCBA, which encompasses 50 unique sections, committees and divisions, strives to provide members
with knowledge and tools to expand and enrich their practices. From over 300 hours of quality continuing legal education
each year, award winning publications, mentor programs and networking opportunities, to discounted pricing on insurance,
office supplies and more, the SDCBA is dedicated to serving San Diegos lawyers.
5. Defendant San Diego County Sherriffs Department (SDSD) is a division of the municipality, the County of San Diego.
The San Diego County Sheriffs Department is the chief law enforcement agency in San Diego County. The department is
comprised of approximately 4,000 employees, both sworn officers and professional support staff. The department provides
general law enforcement, detention and court services for the people of San Diego County in a service area of approximately
4,200 square miles. In addition, the department provides specialized regional services to the entire county, including the
incorporated cities and the unincorporated areas of the county. The SDSD provides court security and related services for
the San Diego Superior Court at several locations throughout the county.
6. Defendant William D. Gore (GORE) is the Sherriff of San Diego County. GORE is elected by the residents of San Diego
County, is the chief executive of the department. He manages seven major detention facilities as well as eight major patrol
stations, four patrol substations, a crime laboratory and an array of support operations necessary to provide full law
enforcement coverage for the County of San Diego. GORE is sued in his individual and official capacities.
7. In such capacities GORE oversees, administers, prepares, and implements all policies, practices, procedures, and
operations of all SDSD facilities, including policies and procedures regarding court security and related services, including
judicial staff and facilities security policies, practices, procedures and operations complained of herein.
8. Defendant County of San Diego is a municipal entity existing within and doing business as the County of San Diego
within this District. The County operates the facilities and certain services at nine San Diego County courthouses; creates and
implements policies, customs, and practices administered by County judicial officers, administrators, and staff; provides
professional legal services and advice to the citizens of San Diego County, including services related to the practice of
family law-divorce and paternity, custody and visitation, child support, domestic violence, restraining orders, self-help
services, frequently asked questions, form selection and advice, and public information regarding court fees, rules, locations,
calendars, and proceedings.
9. Defendant Superior Court San Diego County (SCSDC) is municipal entity chartered under and doing business in the
County of San Diego. In conjunction with the County, SCSDC operates facilities and judicial services at nine San Diego
County courthouses; creates and implements judicial policies, customs, and practices administered by judicial officers,
administrators, and staff; and provides professional legal services and advice to the citizens of San Diego County, including
services related to the practice of family law-divorce and paternity, custody and visitation, child support, domestic violence,
restraining orders, self-help services, frequently asked questions, form selection and advice, and public information regarding
court fees, rules, locations, calendars, and proceedings.
10. SCSDC is part of a network of county courts governed by a 27-member Judicial Council led by Ms. Tani Cantil-Sakauye,
Chief Justice, California Supreme Court. The Judicial Council is the policy-making body of the California Courts and is
responsible for ensuring the consistent, independent, impartial and accessible administration of justice. The Administrative
Office of the Courts (AOC) is the support staff of the Judicial Council.
11.Defendant Hon. Robert J. Trentacosta (TRENTACOSTA) is the chief executive officer and Presiding Judge of SDCSC
residing at 5790 Caminito Pulsera, La Jolla, CA 92037. He oversees, administers, prepares, and implements all policies,
practices, procedures, and operations of all SCSDC facilities and operations, including court security, judicial staff and
facilities security, and the policies, practices, procedures and operations of SCSDC complained of herein. In performing each
of his duties, TRENTACOSTA receives policy advice from an Executive Committee of Judges He is elected by the
citizens of San Diego County, receives all compensation from San Diego County, oversees jurisdiction only in San Diego
County, and is elected to the position of Presiding Judge by other county judges. He exercises direct oversight of day-to-day
oversight and administrative management provided by the SCSDC Court Executive Officer Mr. Michael Roddy. He is sued
in his individual and official capacities.
12.Defendant Michael Roddy (RODDY) is the Court Executive Officer for the SCSDC. He administers and manages the
day to day operation of the SCSDC, including its family law division, SDSD security, the family law facilitators offices,
operations, services, personnel, and paperwork therein. He is sued in his individual and official capacities.
13.Defendant Judicial Council (CJC) is an entity overseeing the administrative functions of the California courts, chartered to
survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and
Legislature, adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute.
CA Const. Art. VI, Sec. 6(d). It is not a subcommittee of the California State Legislature and has no authority to make or
enact state law. Its rulemaking jurisdiction is limited to administrative judicial business and court administration, practice,
and procedure. It has no jurisdiction to make rules inconsistent with state or federal law, as any rules adopted shall not be
inconsistent with statute. Id. It has no authority to perform any judicial acts as that term is defined in Butz v. Economou,
438 U.S. 478 (1978) and Pierson v. Ray, 386 U.S. 547 (1967).
14.The CJC operates under the leadership of the Chief Justice and in accordance with the California Constitution. Its
operations arm, the Administrative Office of the Courts (AOC) implements the councils rules.
15.Defendant Administrative Office of the Courts (AOC) is the staff agency of the CJC, from which it derives authority. Its
officers, including its Administrative Director, are elected by the CJC. The Administrative Director of the Courts is
accountable to the council and the Chief Justice for the performance of the Administrative Office of the Courts. The
Administrative Directors authority is limited to accomplishing the councils goals and priorities. A chart depicting the
relationship between the AOC, CJC, and other related defendants herein is attached at Exhibit 39.
16.The AOC operates the Judicial Branch of California, which claims to be Committed to providing fair and equal access
to justice for all Californians. The Judicial Branch of California operates and oversees the family law facilitator offices
throughout the state of California, providing services and advice for family law subject matter.
17.Defendant Tani G. Cantil-Sakauye (CANTIL-SAKAUYE) is the Chief Justice of the California Supreme Court and head
executive of Defendants AOC, CJC, and CJP, residing at 813 W. Cove Way, Sacramento, CA, 95831. CANTIL-SAKAUYE
chairs and oversees all functions of the CJC, including the preparation, administration, and implementation of all rules,
forms, policies, practices, procedures, and operations of the CJC. Her authority includes oversight and control of the
operation of the family law facilitators offices, operations, services, personnel, and paperwork therein. In such capacity she
operates under the same charter, constitution, jurisdiction, authority, and restrictions as the CJC. She is sued in her individual
and official capacities.
18.Defendant Commission on Judicial Performance (CJP) is an entity with jurisdiction pursuant to Article VI, 18 of the
California Constitution responsible for investigating complaints of judicial misconduct and judicial incapacity and for
disciplining judges.... The commissions mandate is to protect the public, enforce rigorous standards of judicial conduct and
maintain public confidence in the integrity and independence of the judicial system, including in this District.
19. Defendant Lawrence J. Simi (SIMI) is the Chairperson for the CJP residing at 357 Irving Street, San Francisco,
California, doing business in this this District as the Chairperson for the CJP. In that capacity he is authorized and restricted
pursuant to the same laws authorizing and restricting the CJP. He is sued herein his individual and official capacities.
20. Defendant Brad Batson (BATSON) is an individual employed as an investigator for DEFENDANT CJP. BATSON at all
times herein mentioned was the representative, agent, and employee of the CJP in addressing the DDIJO COMPLAINTS I
and II and performing the duties of his office in this District. He is sued herein his individual and official capacities.
21.Defendant National Family Justice Center Alliance (ALLIANCE) is a California Corporation doing business in this
District at 707 Broadway, Suite 700, San Diego, CA.
22. Defendant Hon. Lisa Schall (SCHALL) is a judge of the SCSDC residing at 622 E. Solana Circle, Solana Beach, CA
92075, and at all times relevant herein exercised jurisdiction within the Family Law Division of the SCSDC in this District.
She is an elected official by the citizens of San Diego County, receives all compensation from San Diego County, and
oversees jurisdiction only in San Diego County. She is sued in her individual and official capacities.
23. Defendant Hon. Lorna Alksne (ALKSNE) is a judge of the SCSDC residing at 2890 Moonridge Dr., La Jolla, CA 92037,
and at all times relevant herein was the supervision judge for the Family Division of the SCSDC doing business in this
District. In such capacity ALKSNE oversees, administers, prepares, and implements all policies, practices, procedures, and
operations of all SCSDC Family Law Division operations, including oversight and control of the operation of the family law
facilitators offices, procedures, policies, forms, and personnel. She is an elected official by the citizens of San Diego County,
receives all compensation from San Diego County, oversees jurisdiction only in San Diego County, and is elected or
appointed to the position of Supervising Judge, Family Division by other county judges. Along with TRENTACOSTA and
RODDY, at all times relevant herein she exercised day-to-day oversight and administrative management of the family law
facilitators offices, operations, services, personnel, and paperwork therein. She is sued in her individual and official
capacities.
24.Defendant Off Duty Officers Inc. is a business organization of unknown form doing business at all relevant times within
this District. Defendants ODO DOES 1 and 2 are employees of ODO (collectively ODO). At all relevant times herein,
ODO acted under contract with one or more other defendants, including SDCBA and SCSDC to provide security services at
the April 15, 2010 SDCBA SEMINAR.
25.Defendant Hon. Christine Goldsmith (C. GOLDSMITH) is a judge of the SCSDC, and at all times relevant herein
exercised jurisdiction within the Family Law Division. She is an elected official by the citizens of San Diego County,
receives all compensation from San Diego County, and oversees jurisdiction only in San Diego County. She was an organizer
and panel member of the SDCBA SEMINAR working for or on behalf of the SDCBA and at all times relevant herein acted
as an agent of Defendants SDCBA and SCSDC. She is sued in her individual and official capacities.
26.Defendant Hon. Jeannie Lowe (LOWE) is a judge of the SCSDC, and at all times relevant herein exercised jurisdiction
within the Family Law Division. She is an elected official by the citizens of San Diego County, receives all compensation
from San Diego County, and oversees jurisdiction only in San Diego County. She was an organizer and panel member of the
SDCBA SEMINAR working for or on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants
SDCBA and SCSDC. She is sued in her individual and official capacities.
27.Defendant Hon. William McAdam (McADAM) is ajudge of the SCSDC, and at all times relevant herein exercised
jurisdiction within the Family Law Division. He is an elected official by the citizens of San Diego County, receives all
compensation from San Diego County, and oversees jurisdiction only in San Diego County. He was an organizer and panel
member of the SDCBA SEMINAR working for or on behalf of the SDCBA and at all times relevant herein acted as an agent
of Defendants SDCBA and SCSDC. He is sued in his individual and official capacities.
28.Defendant Hon. Edlene McKenzie (McKENZIE) is a judge of the SCSDC, and at all times relevant herein exercised
jurisdiction within the Family Law Division. She is an elected official by the citizens of San Diego County, receives all
compensation from San Diego County, and oversees jurisdiction only in San Diego County. She was an organizer and panel
member of the SDCBA SEMINAR working for or on behalf of the SDCBA and at all times relevant herein acted as an agent
of Defendants SDCBA and SCSDC. She is sued in her individual and official capacities.
29. Defendant Hon. Joel Wohlfeil (WOHLFEIL) is a judge of the SCSDC residing at 5851 Highplace Dr., San Diego, CA,
and at all times relevant herein exercised jurisdiction within the Family Law Division of the SCSDC within this District. He
is an elected official by the citizens of San Diego County, receives all compensation from San Diego County, and oversees
jurisdiction only in San Diego County. He was an organizer and panel member of the SDCBA SEMINAR working for or on
behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants SDCBA and SCSDC. He is sued in his
individual and official capacities.
30.Defendant Carole Baldwin (C. BALDWIN) is an attorney at law licensed to practice within the State of California
residing and doing business in this District. She was an organizer and panel member of the SDCBA SEMINAR working for
or on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants SDCBA and Baldwin & Baldwin.
31.Defendant Laury Baldwin, CLS-F (L. BALDWIN) is an attorney at law licensed to practice within the State of California
residing and doing business in this District. He was an organizer and panel member of the SDCBA SEMINAR working for or
on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants SDCBA and Baldwin & Baldwin.
32.Defendant Baldwin & Baldwin is a professional law corporation licensed to conduct business as a law firm within this
District.
33.Defendant Larry Corrigan, M.S.W. (CORRIGAN) is a family law professional licensed to practice within the State of
California residing and doing business in this District. He was an organizer and panel member of the SDCBA SEMINAR
working for or on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendant SDCBA.
34.Defendant William Hargreaves, CLS-F (HARGRAEVES) is an attorney at law licensed to practice within the State of
California residing and doing business in this District. He was an organizer and panel member of the SDCBA SEMINAR
working for or on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants SDCBA and
Hargraeves & Taylor, PC.
35.Defendant Harfraeves & Taylor, PC is a professional law corporation licensed to conduct business as a law firm within
this District.
36.Defendant Terry Chucas, Esq. (CHUCAS) is an attorney at law licensed to practice within the State of California residing
and doing business in this District. He was an organizer and panel member of the SDCBA SEMINAR working for or on
behalf of the SDCBA and at all times relevant herein acted as an agent of Defendant SDCBA.
37. Defendant Meredith Levin, CLS-F (LEVIN) is an attorney at law licensed to practice within the State of California
residing and doing business in this District. She was an organizer and panel member of the SDCBA SEMINAR working for
or on behalf of the SDCBA and at all times relevant herein acted as an agent of Defendants SDCBA and Allen, Slattery, Inc.
38.Defendant Allen, Slattery, Inc. is a professional law corporation licensed to conduct business as a law firm within this
District.
39.Defendant Janis Stocks, CLS-F (STOCKS) is an attorney at law licensed to practice within the State of California residing
and doing business providing forensic psychology and child custody evaluation/mediation services in this District. She was
an organizer and panel member of the SDCBA SEMINAR working for or on behalf of the SDCBA and at all times relevant
herein acted as an agent of Defendants SDCBA and Defendant Stocks & Colburn.
40.Defendant Stocks & Colburn is a professional law corporation licensed to conduct business as a law firm within this
District.
41.Defendant Dr. Stephen Doyne, Ph.D. (DOYNE) is a psychologist licensed to practice within the State of California,
residing and doing business providing forensic psychology and child custody evaluation/mediation services in this District.
He is regularly referred business by Defendant SCSDC and performs work in conjunction with, on behalf of, at the request
of, or on referral from other Defendants, including Defendants SCSDC, ABC&K, FRITZ, BIERER, VIVIANO, and LOVE.
In such capacities he operates as an agent thereof. He was an organizer and panel member of the SDCBA SEMINAR
DOYNE, INC. He is sued in his individual and official capacities.
42.Defendant Stephen M. Doyne, a business entity of unknown form, (DOYNE, INC.) is at all times relevant herein a
professional corporation licensed to do business providing forensic psychology and child custody evaluation/mediation
services within this District. Defendants Doyne and DOYNE INC. shall collectively be referred to hereafter as DOYNE,
INC.
43.Defendant Susan Griffin, M.S. (GRIFFIN) is a family law community professional licensed to practice within the State of
California, residing and doing business providing forensic psychology and child custody evaluation/mediation services in this
District. She was an organizer and panel member of the SDCBA SEMINAR working for or on behalf of the SDCBA and at
all times relevant herein acted as an agent of Defendants SDCBA.
44.Defendant Lori Love, Ph.D. (LOVE) is a psychologist licensed to practice within the State of California, providing
forensic psychology and child custody evaluation/mediation services and residing and doing business in this District. She is
regularly referred business by Defendant SCSDC and performs work in conjunction with, on behalf of, at the request of, or
on referral from other Defendants, including Defendants SCSDC, ABC&K, FRITZ, BIERER, VIVIANO, and DOYNE INC.
In such capacities she operates as an agent thereof. She was an organizer and panel member of the SDCBA SEMINAR
defendant Love & Alvarez Psychology, Inc. She is sued in her individual and official capacities.
45.Defendant Love & Alvarez Psychology, Inc. (LOVE INC) is a professional corporation providing forensic psychology
and child custody evaluation/mediation services within this district.
46.Defendant Robert A. Simon, Ph.D. (SIMON) is a psychologist licensed to practice within the State of California, residing
and doing business providing forensic psychology and child custody evaluation/mediation services in this District. At all
times relevant herein he acted as an agent of SDCBA.
47.Defendants American College of Forensic Examiners, American College of Forensic Examiners International (ACFEI) is
a Missouri corporation with a principle place of business of at 2750 E. Sunshine St., Springfield, MO. ACEFI advertises and
promotes itself as the largest forensic science membership association, forensics education, credentials, courses, training and
membership for forensics examiners and conducts such business in this District, including conspiring with other
DEFENDANTS hereinto commit a substantial portion of the acts complained of herein in this District.
48.Defendant Robert OBlock is the founder, President, and CEO of ACEFI and Publisher of The Forensic Examiner. He is a
resident of the State of Missouri and at all times relevant herein was doing business selling the above products and services in
this district. Defendants OBlock and ACEFI shall collectively be referred to as ACEFI, INC.
49.Defendant Lori Clark Viviano, CFLS-F (VIVIANO) is an attorney at law licensed to practice within the State of
California residing and doing business in this District. At all times relevant herein, she acted as an agent of Defendant The
Law Office of Lori Clark Viviano.
50.Defendant The Law Office of Lori Clark Viviano is a professional law corporation licensed to conduct business as a law
firm within this District, VIVIANO and The Law Offices of Lori Clark Viviano will be hereafter referred to as VIVIANO,
INC.
51.Defendant Sharon Blanchet, CLS-F (BLANCHET) is an attorney at law licensed to practice within the State of California
residing and doing business in this District. At all times relevant herein, she acted as an agent of Defendant ABC&K.
52.Defendant ABC&K is a professional law corporation licensed to conduct business as a law firm within this District.
Defendants AB&K and BLANCHET will hereinafter be collectively referred to as BLANCHET.
53.Defendant Marilyn Bierer, CLS-F (BIERER) is an attorney at law licensed to practice within the State of California
residing and doing business in this District. At all times relevant herein, she acted as an agent of Defendant Bierer and
Associates.
54.Defendant Bierer & Associates is a professional law corporation licensed to conduct business as a law firm within this
District. Defendants Bierer & Associates and BIERER will hereinafter be collectively referred to as BIERER.
55.Defendant Jeffrey Fritz, CLS-F (FRITZ) is an attorney at law licensed to practice within the State of California residing
and doing business in this District. At all times relevant herein, he acted as an agent of Defendant Basie & Fritz.
56.Defendant Basie & Fritz is a professional law corporation licensed to conduct business as a law firm within this District.
57.Defendants SDCBA, SDSO, ODO, C. GOLDSMITH, ALKSNE, SCHALL, LOWE, McADAM, McKENZIE,
WOHLFEIL, L. BALDWIN, C. BALDWN, CHUCAS, CORRIGAN, DOYNE, DOYNE INC., GRIFFIN, HARGRAEVES,
LEVIN, LOVE, SIMON, STOCKS and BIERER shall hereinafter be collectively referred to as STUART ASSAULT
COORDINATORS (SAC).
58.Defendants GORE, TRENTACOSTS, RODDY, CANTIL-SAKAUYE, BATSON, ALKSNE, C. GOLDSMITH, LOWE,
MCADAM, MCKENZIE, WOHLFEIL are employees authorized by statute to perform certain duties under color of state
law, and shall hereinafter be collectively referred to as COLOR OF LAW DEFNDANTS (COLD).
59.Defendants acting in concert with COLD at times acted as agents of and therefore are at times named as color of law
defendants by virtue of their relationships with COLD as agents, affiliates, co-conspirators, or superiors of COLD, as more
specifically described below.
60.Collectively, the above-referenced defendants, operating full or part time as part of a broader Family Law Community
of professionals, institutions, entities, practices, methods, products and services and its ancillary arms shall hereafter be
referred to as the Domestic Dispute Industry (DDI). Litigants within the DDI, including STUART and those similarly
situated, are hereafter referred to as Domestic Dispute Industry Litigants (DDIL).
DOE Defendants:
61.DOE Defendants identities are unknown to Plaintiffs and are named by fictitious names as follows.
62. Enterprise DOES: DDICE DOES 1-50: Plaintiffs assert civil racketeering counts under 18 U.S.C. 1962(c), (d) based
upon DEFENDANTS participation in, ownership or, or affiliation with one or more criminal enterprises as that term is
defined under 1964(c). Plaintiffs have identified four enterprises, which together are referred to as the Domestic Dispute
Industry Criminal Enterprise (DDICE). For purposes of DOE allegations herein, DOES shall be identified according to
the enterprise or segment of the enterprise to which they are related.
63.DDIJO DOES: Judges, Commissioners, and other appointed or elected judicial officials of the Family Law Division of the
Superior Court of the State of California, in and for the respective counties of which they are members, are herein
denominated Domestic Dispute Industry Judicial Officers (DDIJO). Unknown DOES which fall into the DDIJO category
shall be denominated DDIJO DOES.
64.DDIA DOES: Attorneys at law licensed by the California Bar confining substantially or all of their practice to Family
Law shall be denominated as Domestic Dispute Industry Advocates (DDIA).
65.DDIPS DOES: Professional service providers, including psychologists, psychiatrists, family-law oriented social workers,
advocates, child care professionals, and other professional-level industry workers not falling into the category of a licensed
attorney shall be denominated as Domestic Dispute Industry Professional Services (DDIPS).
66.DDISO DOES: Professional law enforcement, police, sheriffs, sheriffs deputies, security, or other law enforcement
professionals shall be denominated Domestic Dispute Industry Security Officers or (DDISO).
67.DDISW DOES: Professional social workers engaged in the practice of family law shall be denominated the Domestic
Dispute Industry Social Workers and includes employees and agents of Defendants ALLIANCE, AOC, CJC, and SCSDC
(DDISW).
68.Upon learning the true names and capacities of the DOE defendants, Plaintiffs will amend this Complaint as appropriate.
69.Plaintiffs are informed, believe, and allege that in doing all of the things alleged, COLD, and each of them, acted under
color of statutes, regulations, customs and usages of the State of California, County of San Diego, and/or City of San Diego,
and pursuant to the official policies thereof, except as otherwise alleged.
70.Plaintiffs are informed, believe and allege that at all times mentioned each Defendant was the agent, associate, affiliate,
co-conspirator, superior and/or employee of each other defendant and was acting within the course, scope and purpose of
such relationship in each act ascribed to them herein, except as otherwise alleged.
III. BACKGROUND
Plaintiffs Social and Political Reform, Exercise, Activism, and Support and Advocacy for Federal Laws, Institutions,
Political Candidates
71.California Coalition for Families and Childrens (CCFC) organizers, officers, and affiliates are professionals dedicated to
improving social, governmental, and justice system process concerning domestic relations, child rearing, parenting,
constitutional law, child custody, and domestic violence. Many of CCFCs members are mothers, fathers, and children who
have withstood abundant hardship resulting from the current practices of what is generally described as the Family Law
Community. These injuries and insults include fraudulent, inefficient, harmful, and even dangerous services; an
institutionalized culture of indifference to clearly-established liberties; insults to the autonomy and dignity of parents and
children; extortion, robbery, abuse, and more, delivered at the hands of eager operators within the family law community.
72.CCFCs has expressed its perception that the present-day suffering of so many parents and children has and is being
wrought within a larger system characterized by a widespread institutional failure of-indeed contempt for-the rule of law.
CCFC has endeavored to deliver the message that the present family law system increasingly ignores the supremacy of the
Constitution and the laws of the United States in depriving U.S. Citizens within California of their rights, privileges, and
immunities under U.S. law. California legal institutions such as family courts and the legal community, professional
institutions such as the state bar and psychology boards, and criminal justice institutions have in the recent decade gradually
combined to cultivate a joint enterprise forum in which widespread family practice exceptions to the rule of law are not
only tolerated, but increasingly encouraged. Professional behavior that would only a few years ago be recognized as
unethical, illegal, or otherwise intolerable by American legal, psychological, law enforcement, or social work professionals
has increasingly achieved acceptance-indeed applause-from institutional interests which benefit from ajoint enterprise
enforcing the wisdom of who you know is more important than what you know.i In this lawless behaviors most crass
infestation, California Superior Court Family Division judges are regularly heard to announce, in open court, I am the law
and proceed to act accordingly with impunity, indifference, and without shame.
i
American Fascists: The Christian Right and the War on America, Hedges, C (Free Press 2006) ISBN-10 978-0-7342-8443-1.
73.The effect on parents and children seeking social support within this coalescing family law forum has not been as
advertised by courts and professionals-a new healing-but instead a new affliction: an imposed disabilityii of de rigueur
deprivation of fundamental rights in the name of therapeutic jurisprudence funded by converting college funds into a
bloated ministry of the bariii leaving families and their children with mere crumbs of their own success.
ii
United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307)
iii
Coercing Virtue: The Worldwide Rule of Judges, Bork, Robert H., (American Enterprise Institute 2002), ISBN 0-8447-4162-0
74.Plaintiffs have organized to confront the State of Californias dispossession of law and reason by engaging those within
the Domestic Dispute Industry who administer the decay-family court judges. An astonishingly vast judicial administrative
bureaucracy, domestic dispute industry attorneys, psychologists, and other professionals whose nearly imperceptible
deliberate indifference to the creeping deprivations of parental rights is leaving the family cupboard nearly bare.
75.PLAINTIFFS efforts on behalf of parents and children have included increasing public and governmental awareness of
family rights, representing and supporting parents and children in exercising and enforcing such rights, lobbying state and
federal policymakers to improve protections for federal rights under state law, and undertaking litigation, complaints, or other
formal and informal engagements with state and federal authorities to assert, exercise, communicate regarding, educate,
inform, establish and defend such rights with the goal of enabling parental autonomy and empowerment through reform state
of California domestic dispute laws, practices, and institutions. (ENGAGEMENT)
Constitution and Laws of the United States: The Family Federal Rights
76.Well-established United States law securing parents and childrens civil and other rights (Federal Family Rights or
FFR) which PLAINTIFFS exercise, enforce, support and advocate for includes:
Table 1.0 Federal Family Civil Rights

Federal Family civil and other
Rights(FFR)
Parent-child autonomy, privacy, freedom of association,
belief, thought, and expression are fundamental 584, 602;
Constitutional rights: There is perhaps no more delicate
Citations
Troxel v. Granville, 530 U.S. 57 (2000); Parham v. J. R., 442
U.S. Reno v. Flores, 507 U.S. 292, 304; Jensen v. Wagner,
603 F. 3d 1182 (2010)
10
constitutional barrier protecting individual freedom from

governmental interference than that which protects against
state interference with parental autonomy. Presumption of
Parental Fitness; Parental Autonomy to determine best
interests.
Parenting rights are a liberty interest protected by due
process and equal protection: [t]he fundamental liberty
interest of natural parents in the care, custody, and
management of their child)
Santosky v. Kramer, 455 U.S. 745, 753 (1982)
Facial invalidity of any state law interfering with a parents

fundamental rights to parental autonomy. Heightened
protection against government interference with certain
fundamental rights and liberty interests, including parents
fundamental right to make decisions concerning the care,
custody, and control of their children
Washington v. Glucksberg, 521 U.S. 702, 720; Stanley v.

Illinois, 405 U.S. 645, 651. Pp. 5-8; Meyer v. Nebraska, 262
U.S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268
U.S. 510, 535 (1925); Stanley v. Illinois, 405 U.S. 645, 651
(1972); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972);
Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.
R., 442 U.S. 584, 602 (1979); Santosky v. Kramer, 455 U.S.
745, 753 (1982)
We have recognized on numerous occasions that the

relationship between parent and child is constitutionally
protected
Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
Any state attempt-statutes, laws, rules, acts, policies,

procedures, or formwork-to deprive parents of their
fundamental parent-child rights is presumed invalid, and
must overcome strict scrutiny to be enforceable: parents
have a fundamental constitutional right to rear their children,
including the right to determine who shall educate and
socialize them. The opinions of the plurality, Justice
Kennedy, and Justice Souter recognize such a right, but
curiously none of them articulates the appropriate standard
of review. I would apply strict scrutiny to infringements of
fundamental rights.
To say the least (and as the Court implied in Pierce),
Troxel, supra (Thomas, J., concurring)
parental choice in such matters is not merely a default rule in
the absence of either governmental choice or the
governments designation of an official with the power to
choose for whatever reason and in whatever circumstances.
Meyers repeatedly recognized right of upbringing would
Troxel, supra, (Souter, J., concurring
be a sham if it failed to encompass the right to be free of
judicially compelled visitation by any party at any time a
judge believed he could make a better decision than the
objecting parent had done. The strength of a parents interest
in controlling a childs associates is as obvious as the
11
influence of personal associations on the development of the

childs social and moral character. Whether for good or for
ill, adults not only influence but may indoctrinate children,
and a choice about a childs social companions is not
essentially different from the designation of the adults who
will influence the child in school. Even a States considered
judgment about the preferable political and religious
character of schoolteachers is not entitled to prevail over a
parents choice of private school.
Parental Autonomy Prohibits State Interference in the home, Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923)
values, education, direction, guidance of children absent
parental consent: The liberty protected by the Due
Process Clause includes the right of parents to establish a
home and bring up children and to control the education of
their own.
The rights to be free from state action is one of the family
Parham v. J R., 442 U.S. 584, 602 (1979)
unit-i.e., both parents equally, including the rights of
children: Our jurisprudence historically has reflected
Western civilization concepts of the family as a unit with
broad parental authority over minor children. Our cases have
consistently followed that course
Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925),
The fundamental theory of liberty upon which all
governments in this Union repose excludes any general
power of the State to standardize its children by forcing them
to accept instruction from public teachers only. The child is
not the mere creature of the State; those who nurture him and
direct his destiny have the right, coupled with the high duty,
to recognize and prepare him for additional obligations. It
would be anomalous, then, to subject a parent to any
individual judges choice of a childs associates from out of
the general population merely because the judge might think
himself more enlightened than the childs parent. The
liberty of parents and guardians includes the right to
direct the upbringing and education of children under their
control. The child is not the mere creature of the State;
those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for
additional obligations.
There is a constitutional dimension to the right of parents to
direct the upbringing of their children. It is cardinal with us
that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor
hinder.
Prince v. Massachusetts, 321 U.S. 158 (1944)
12
Any state interest in directing decision-making for the care, Toxel, supra, quoting Stanley v. Illinois, 405 U.S. 645, 651
custody, and control of a child is subordinate to those of the (1972)
parents: In subsequent cases also, we have recognized the
fundamental right of parents to make decisions concerning
the care, custody, and control of their children. (It is plain
that the interest of a parent in the companionship, care,
custody, and management of his or her children come[s] to
this Court with a momentum for respect lacking when appeal
is made to liberties which derive merely from shifting
economic arrangements (citation omitted))
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)
The history and culture of Western civilization reflect a
strong tradition of parental concern for the nurture and
upbringing of their children. This primary role of the parents
in the upbringing of their children is now established beyond
debate as an enduring American tradition
In a long line of cases, we have held that, in addition to the Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
specific freedoms protected by the Bill of Rights, the
liberty specially protected by the Due Process Clause
includes the righ[t] ... to direct the education and upbringing
of ones children (citing Meyer and Pierce)). In light of this
extensive precedent, it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning
the care, custody, and control of their children.
Free Expression is a fundamental right; state laws infringing
free expression are presumed invalid; to overcome the
presumption of invalidity the state must prove the
interference falls within one of the limited historic and
traditional categories long familiar to the bar:
[A]s a general matter, the First Amendment means that
government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content. As a
result, the Constitution demands that content-based
restrictions on speech be presumed invalid ... and that the
Government bear the burden of showing their
constitutionality.
United States v. Alvarez, 567 U.S. ___ (2012); Ashcroft v.

American Civil Liberties Union, 535 U. S. 564, 573 (2002);
United States v. Stevens, 559 U. S. ___ (2010) (slip op., at 7).

Strict Scrutiny Supremacy of Constitution and laws of the
United States, invalidates free floating standards hindering
Free Expression In light of the substantial and expansive
threats to free expression posed by content-based
restrictions, this Court has rejected as startling and
dangerous a free-floating test for First Amendment
coverage ... [based on] an ad hoc balancing of relative social
costs and benefits.
13
content-based restrictions on speech have been permitted,

Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v.
as a general matter, only when confined to the few historic Members of N. Y. State Crime Victims Bd., 502 U. S. 105,
and traditional categories [of expression] long familiar to the 127 (1991) (Kennedy, J., concurring in judgment)).
bar,
The limited historical and traditional categories of
permissive restrictions on free speech include only:
1. Advocacy intended, and likely, to incite imminent lawless
action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per
curiam);
2. Obscenity, see, e.g., Miller v. California, 413 U. S. 15
(1973); Defamation, see, e.g., New York Times Co. v.
Sullivan, 376 U. S. 254 (1964) (providing substantial
protection for speech about public figures); Gertz v. Robert
Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on
liability for defaming a private figure);
3. Speech integral to criminal conduct, see, e.g., Giboney v.
Empire Storage & Ice Co., 336 U. S. 490 (1949); so-called
fighting words, see Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942);
4. Child pornography, see New York v. Ferber, 458 U. S. 747
(1982);
5. Fraud, see Virginia Bd of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 771 (1976);
6. True threats, see Watts v. United States, 394 U. S. 705
(1969) (per curiam);
7. Speech presenting some grave and imminent threat the
Alvarez, supra
government has the power to prevent, see Near v. Minnesota
ex rel. Olson, 283 U. S. 697, 716 (1931), although a
restriction under the last category is most difficult to sustain,
see New York Times Co. v. United States, 403 U. S. 713
(1971) (per curiam).
Content-based restrictions on speech in electronic
communications are presumed invalid unless the state can
prove that technological means for regulating speech are
Ashcroft v. American Civil Liberties Union, 535 U. S. 564,

666 (2002); Alvarez, supra.
14
impossible: In addition, when the Government seeks to

regulate protected speech, the restriction must be the least
restrictive means among available, effective alternatives.
Plaintiffs Support and Advocacy for FFR

77.PLAINTIFFS have been active in supporting and advocating for the FFR, including the institutions, laws, and entities of
the United States that protect, uphold, and defend them against state intrusion. Though the FFR are well-recognized under
federal (and state) laws, it has been PLAINTIFFS collective experience that within the state of California the FFR are
frequently ignored in the hands of those exercising jurisdiction over parents and families, including DEFENDANTS and the
entities of which they are associates and members. Notwithstanding that such state actors may legally exercise their
enormous powers only when according to law, and notwithstanding that such actors enjoy limited immunities only when they
exercise such powers legally, state of California color of law actors regularly wander far off the reservation to inflict unjust,
irrational, and often heinous crimes against civil liberty.
78.PLAINTIFFS have acted to end these trespasses and redress the grievances of those offended. These efforts have included
support and advocacy for the supremacy of the Constitution and laws of the United States vis--vis relevant sections of
California Family and Penal codes, including the Domestic Violence Intervention Legislative Scheme (DVILS) discussed
below and in Ex. 1. PLAINTIFFS have advocated for, supported, sought to educate, exercise, and enforce the FFR and for
the institutions and processes of the United States upholding, protecting, and defending the same. PLAINITIFFS reform
efforts have specifically directed to bringing Californias domestic relations law and practice into compliance with the
protections afforded to all United States citizens under federal institutions, laws, and practice. PLAINTIFFS FFR reform,
exercise, support, and advocacy activity has included:
1. Open exercise of FFR and other civil liberties putatively extinguished by California state domestic relations law (see
DVILS infra); engagement with DEFENDANTS threats, harassment, obstruction, retaliation, intimidation, and injury for
such exercise (Exs. 5-7, 27-30);
2. Public education and awareness campaigns regarding worldwide FFR exercise and government abuse, and encouragement
and facilitation toward broader public exercise of the same (Ex. 10);
3. Sponsoring public events, interviews, and meetings with reform leaders such as Up To Parents, Support, System Down, the
National Coalition for Men, state assembly candidates, local board of supervisors candidate John Van Doorn, to educate,
motivate, and organize to protect the FFR from state deprivation (Exs. 7, 8, 11);
4. The SDSBCA ENGAGEMENT (below and Ex. 5);
5. Direct ENGAGEMENTS in Family Court facilities (Ex. 6);
6. Public education and awareness of family courts disregard for FFR through editorial series on high-profile cases such as
Bonnie Holt, Eric Moelter, Evan Nash, Morse v. Morse, Cindy Dumas, Cynthia Sommer, Chris Nobel, Emad Tadros, Cole
Stuart, with CCFC editorial perspectives (Ex. 7);
7. Appearance on various public interest video blog shows and series such as Face Up To Fred, with Fred Sotilie,
Progress in San Diego with Walter Davis, San Diegos ABC affiliate, and more; (See Internet Links to Plaintiffs
Exhibits incorporated herein by reference);
8. Raising awareness and direct ENGAGEMENT of DDIJO DEFENDANTS ALKSNE, ALLARD, DOYNE, INC.,
SCHALL, WOHLFEIL, TRENTACOSTA, and Judges Lewis, Bloom, So, Hallahan, Trapp, Salcido, of the schemes,
artifices, and devices to defraud such as the SCSDCS systematic failure to observe the laws requiring Child Custody
Evaluators to be properly licensed, educated, trained, and overseen by the Superior Courts (Exs. 1, 2, 4);
15
9. Revealing descriptions of the schemes, artifices and devices to defraud of the DDI, including government abuse and
private schemes to defraud, to the general public, including those of Defendants DOYNE, FRITZ and BIERER (Exs. 7, 10,
12, 18);
10.Co-Promotion and awareness campaigns with leading family civil rights writers and thinkers such as Dr. Stephen
Baskerville, Ned Holstein, Charles Asher, Walter Davis, and others (Exs. 8, 11, 13);
11.Litigation and other confrontational reform efforts adverse to Defendants DOYNE, INC. (Ex. 2, 3, 4, 20), ALLIANCE,
(Ex. 1), BLANCHET (Ex. 14).
79. Formal Advocacy: Plaintiffs have undertaken projects asserting FFR civil rights under federal law throughout California.
These include:
12.Civil Rights Fraud matter filed in the name of CCFC member Dr. Emad Tadros adverse to the chairman of the family law
committee of the San Diego County Bar Association, Mr. Robert Lesh and the State Bar of California, presently-pending in a
Petition for Certiorari before the United States Supreme Court, entitled Tadros v. Lesh, The State Bar of California, case No.
12-1438. (Exs. 2, 20);
13.A parents federal law, civil rights, and state law matter filed in the in the name of CCFC member Dr. Emad Tadros
adverse to defendant herein DOYNE INC asserting civil rights violations, Defamation, HIPPA violations, and state law
commercial fraud, unfair business practices, malpractice, and defamation, entitled Tadros v. Doyne, San Diego Superior
Court Case No. ____________________ (Exs. 3, 4, 20);
14.An Amicus Curie Brief in favor of Plaintiff in the above referenced case (Ex. 3);
15.A cease and desist letter to the City of San Diego, County of San Diego, Superior Court of San Diego County, San Diego
Sheriffs Department, San Diego Police Department, and numerous judges on the family law division bench, including
several defendants herein;
16. Hosting numerous online informational, support, educational, and organizing
www.facebook.com/ccfconline, www.thepubticcourt.com, and www.carpedicta.com (Ex. 15);
sites,
including
17. Organizing support for state reform such as judicial immunity reform proposed in California Assembly Bill AB 2475
which would have clarified that custody evaluators are not entitled to judicial immunity, including publications, public
appearances, and directly appearances at California State Assembly Judiciary Council meetings in Sacramento to advocate
for imposing conformity on California law, lobbying for stronger oversight by state legislatures over administrative and
judicial bodies such as DEFENDANTS, Child Protective Services, Department of Child Support Services (Exs. 10, 16);
18. Organizing public support for redress of the constitutional wrongs committed against attorney former federal prosecutor
and judicial reformer Richard Fine by Judge David Yaffe in Los Angeles County (Ex. 17);
19. Sponsoring public forums in which issues with DDI operatives, including judges, attorneys, and evaluators, may be heard
and publicized at www.carpedicta.com (Ex. 18);
20.Collaborating with professional local and national media to raise awareness of all of these issues and efforts, including
PBS Frontlines Pro Publica series exposing credential fraud of ACFEI No Forensic Background? No Problem, ABC
Channel 10s series on a local forensic psychologists credentials fraud (Ex. 19);
80.PLAINTIFFS protected legal, social, political, and commercial activities toward reform, support and advocacy described
above shall hereafter be referred to as FEDERAL FAMILY RIGHTS REFORM, EXERCISE, SUPPORT, AND
ADVOCACY, or FFRRESA.
16
FFRESSA Engagement in Support and Advocacy for United States Representatives

81.PLAINTIFFS have actively engaged the institutional representatives of the United States in their FFRRESA. This activity
includes federal election support, lobbying, and coordination with Senator Barbara Boxers Office in San Diego and
Washington, DC, Senator Diane Feinsteins Offices in Washington, D.C., Senator Harkins Offices in Washington, DC,
United States Representatives Darrell Isa, Duncan Hunter, Juan Vargas, Scott Peters, and Susan Davis. PLAINTIFFS have
ENGAGED on these issues with the United States Department of Justice, the Ninth Circuit Court of Appeals. See Ex. 1.
PLAINTIFFS have undertaken similar reform ENGAGEMENT with California state representatives Gov. Arnold
Schwarzenegger, Gov. (and attorney general) Jerry Brown, Assemblywomen Karen Bass, Fiona Ma, Assemblyman Nathan
Fletcher, Lynn Daucher, Tim Donnelley, State Assembly reform candidate Peter Thotham, county supervisor candidate John
Van Doom, opposing Defendant GOREs and WHOLFEILS election campaigns and supporting that of opponents of
DEFENDANTS herein; ENGAGED Bonnie Dumanis, Attorney General Kamala Harris, Chief Justices Tani Cantil-Sakauye
and Ronald M. George, Dennis Hollingsworth, Diane Jacobs, Bill Lockyear, Jerry Sanders, Bob Filner, as well as direct
communications with all DEFENDANTS herein. Ex. 1, 2, 20.
82. FFRRESA Engagement in Reform of State Color of Law Actors: Plaintiffs FFRRESA has included numerous
ENGAGEMENTS with state and federal authorities to attempt to enforce FFRRESA reforms on California laws and
institutions, including identification, publication, accusation, formal and informal complaints, ENGAGEMENT, litigation,
and collaborative remedy of the illegal activities of the Domestic Dispute Industry. These efforts include:
83. DIJO COMPLAINTI: In November, 2009, STUART contacted the United States Attorneys Office for the Southern
District of California to report violations of the FFR, specifically identifying numerous provisions of federal law, including
18 U.S.C. 2(a)-(b), 241, 242, 371, 666, 1341, 1343, 1346, 1503, 1505, 1510, 1581-1595, 1951, 1961-1964; and 42 U.S.C.
1981-86 (these statutory provisions shall hereafter be referred to as the Civil Rights Civil and Criminal Statutes, or
CRCCS) by SCHALL, DOYNE, and WOHLFEIL detailing allegations consistent with those asserted herein. STUART
detailed numerous violations of the CRCCS on the part of SCHALL, including deprivation of rights, abuse of process,
abusive behavior and remarks from the bench, a long history of three prior admonishments by Defendant CJP including a
2008 conviction for drunken driving, a persistent pattern of refusals to adhere to state and federal minimum due process
standards in STUARTS case and several others known publically, illegal, unnoticed, and without probable cause searches
and seizure of STUART and STUARTs property inside the a civil (family law) courtroom, and generally extreme and
outrageous unprofessional demeanor.
84.The U.S. Attorneys Office advised STUART as follows:
A. That the DDIJO COMPLAINT I allegations could be violations of federal law, but that because the matters were not all
that serious STUART should proceed instead with the California Commission on Judicial Performance (CJP), the California
State body with jurisdiction to investigate, and enforce standards, rules, and laws, including violations of federal law,
regarding state actors judicial behavior;
B. That the CJP had jurisdiction to impose address, investigate, and discipline or otherwise dispose of STUARTs complaints
under both state and federal law, and was obligated to report any violations of federal criminal law to the appropriate federal
authorities;
C. That if Stuart filed a complaint with both the U.S. Attorneys Office and the CJP, the U.S. Attorneys Office would not
take action until the complaint to the CJPs Office was exhausted.;
D. That the CJP was the first step in the process. The U.S. Attorneys Office advised Stuart that he could, if he wished, file
a complaint with the U.S. Attorney and the Grand Jury, but that because the facts did not indicate anything serious, the
U.S. Attorney would likely not act;
E. That if STUART was unsatisfied with the CJPs response, he could pursue the same complaint directly with the U.S.
Attorney or F.B.I. and rely on the documentation, evidence, facts, and testimony provided to the CJP.
85.Though STUART disagreed that the behavior he described was not serious, he obeyed the instructions of the U.S.
Attorneys Office, contacting the CJP to continue prosecution of the DDIJO COMPLAINT I in the CJP Offices. The CJP
17
representative advised STUART that because DOYNE was not an elected or appointed judicial official, the CJP had no
jurisdiction to hear Complaints regarding him. The CJP further advised that since STUARTs Complaint regarding
WOHLFEIL was related to his appointment of DOYNE, and because SCHALL was the party primarily involved in the
allegations of civil rights deprivations concerning DOYNE, that a complaint regarding WOHLFEIL would not be
appropriate. The CJP advised STUART to deliver a written description of his complaint regarding only SCHALL.
86.STUART did so, detailing violations of the CRCCS by SCHALL. Stuart also detailed facts relating to DOYNE and
WOHLFEILs potential involvement in violations of the FFR and CRCCS. STUART submitted the complaint to the CJP and
copies thereof to the United States Attorneys Office, the Grand Jury of the United States District Court for the Southern
District of California, the Internal Revenue Service, all of Californias representatives in the United States House of
Representatives and the United States Senate, the Federal Bureau of Investigation, and the California Commission on Judicial
Performance (hereafter be referred to as the FEDERAL LAW ENFORCEMENT OFFICERS).
87. STUART also provided a copy of the DDIJO COMPLAINT (I) to numerous DDIJO DEFENDANTS including all
then-sitting DDIJO on the San Diego County Superior Court, Family Law Division, San Diego County Superior Court
supervising Judge Kenneth So, the San Diego Daily Transcript, the San Diego Union Tribune, a number of state and federal
media outlets, parenting groups, and related entities. A true and correct copy of Stuarts letter to the FEDERAL LAW
ENFORCEMENT OFFICERS is unavailable and as such is referenced as if attached (Ex. 22).
88.During the investigation of DDIJO COMPLAINT I, STUART continued to interact with the FEDERAL LAW
ENFORCEMENT OFFICERS, including at or around the time of the STUART ASSAULT, and continues today.
89. DDIJO COMPLAINT II: In October, 2012, STUART supplemented his prior DDIJO COMPLAINT I with more
extensive detail regarding SCHALL, WOHLFEIL, AND DOYNE, INC., and asserting additional allegations against
DEFENDANTS SCHALL, ALKSNE, C. GOLDSMITH, and GROCH. STUART submitted the DDIJO COMPLAINT II to
the FEDERAL LAW ENFORCEMENT OFFICERS regarding substantially the same allegations as asserted herein. A true
and correct copy of the DDIJO COMPLAINT II is attached hereto as Exhibit 21. STUART delivered a copy of DDIJO
COMPLAINT II other DDIJO, the FEDERAL LAW ENFORCEMENT OFFICERS, the public and various media outlets.
90. STUART has continued to interact with the FEDERAL LAW ENFORCEMENT OFFICERS regarding the DDIJO
COMPLAINTS through the present day.
91. DOYNE INC. COMPLAINT I: In May, 2008, and June, 2013, STUART filed complaints with the California Board of
Psychology regarding DOYNE, INC detailing substantially the same allegations herein. The entire body of correspondence
relating the DOYNE INC. COMPLAINT is in the possession of the California Board of Pscyhology and as such is referenced
as exhibit 22 to be produced once obtained from the Board. A true and correct copy of the June, 2013 correspondence is
attached hereto as Exhibit 23.
92. DOYNE, INC. COMPLAINTS II-IV: PLAINTIFFS have filed, assisted, coordinated, advocated for, and supported others
further complaints and lawsuits regarding DOYNE, INC. (Ex. 2, 4, 7, 20, 22, 23)
93. FFRRESA Engagement with National Non-Profits: CCFC has also undertaken FFRRESA ENGAGEMENT with regard
to the City of San Diego and the National Family Justice Center Alliance (ALLIANCE) in a Notice and Demand to Cease
and Desist (Ex. 1) from actions in violation of the FFR. CCFC has delivered the Notice and Demand package, including
abundant evidence of violations of the CRCCS, to FEDERAL LAW ENFORCEMENT OFFICERS, including The United
States Attorney for this District, the Grand Jury, the United States Department of Justice, including Ms. Bea Hanson and Mr.
Eric Holder, the Federal Bureau of Investigation, the Ninth Circuit Court of Appeals, as well as state color of law
administrative defendants with jurisdiction over such matters, including Defendants AOC, CJC, CANTIL- SAKAUYE,
ALKSNE, C. GOLDSMITH, WOHLFEIL, TRENTACOSTA, SCSDC, SDSD, and COUNTY OF SAN DIEGO. Ex. 1.
94. Other CCFC Federal Engagement: CCFC organizers and affiliates have become involved as witnesses and potential
parties in reporting violations of the CRCCS to several FEDERAL LAW ENFORCEMENT OFFICERS. In August, 2011,
Dr. Tadros spoke with Ms. Laura OFarrell of the Federal Bureau of Investigations to report possible deprivations of the FFR
described more fully in the attached exhibits. In 2007 Ms. Eileen Lasher began interacting with Assistant United States
18
Attorneys Mssrs. Jason Forge and Michael Wheat of the U.S. Attorneys Office for the Southern District of California
regarding allegations of racketeering operation of the Superior Court of the County of San Diego, specifically including
RODDY, ALKSNE, and other Family Division judges, for intentionally abusing process and extorting funds from families in
state family court proceedings in violation of the CRCCS. Ms. Lasher has provided detailed information to these LAW
ENFORCEMENT OFFICERS regarding bribery, extortion, fraud, abuse of process, peonage, and deprivation of civil rights
pursuant to the CRCCS and California State bribery and extortion statutes. In 2004 Ms. Lasher provided similar details to
Officer John McCahal of the NYPD Federal Task Force in three separate meetings. Officer McCahal referred the matter to
the Federal Bureau of Investigation, whereupon Ms. Lasher personally and through her attorney provided details to the
United States Attorney for the Southern District of New York regarding similar crimes. Dr. Tadros has also met with the
Federal Bureau of Investigations Ms. Laura OFarrell regarding similar issues.
95.Ms. Lasher has met with Deputy District Attorney for the County of San Diego, Mr. Damon Mosler and Mr. Brian Ahearn
of the San Diego Police Department Internal Affairs Office to provide similar information regarding the violation of the
CRCCS criminal activity described above. PLAINTIFFS have assisted, represented, advised, and advocated on behalf of
CCFC affiliates in these and many similar FFRRESA Engagements.
96.At the time of the STUART ASSAULT, STUART, CCFC member Dr. Emad Tadros and Eileen Lasher and other CCFC
members were in ongoing DUE ADMINISTRATION OF JUSTICE with the FEDERAL LAW ENFORCEMENT
OFFICERS, UNITED STATES REPRESENTATIVES, including Senator Barbara Boxer, and Defendants AOC internal
affairs representatives Eric Pulido and John Judnich, SCSDC, RODDY, CJP, to provide information, documents, assistance,
testimony, and evidence of violation of the CRCCS.
97.CCFC affiliate Emad Tadros has become involved in interstate consumer fraud litigation in District Copurts in this state
and in Missouri with Defendants ACEFI. Ex. 43.
98.On information and belief, state and FEDERAL LAW ENFORCEMENT OFFICERS have and continue to investigate
PLAINTIFFS allegations under the CRCCS toward presentment to a grand jury, indictment, and prosecution under federal
law.
99.The above-described activities of PLAINTIFFS and their affiliates in interaction and cooperation with FEDERAL LAW
ENFORCEMENT OFFICERS, constitutes attendance as a witness or party at proceedings, giving of evidence, documents,
records, objects, or other testimony given or any record, document, any information relating to the commission or possible
commission of a CRCCS violation or otherwise regarding PLAINTIFFS FFRRESA and related matters to the FEDERAL
LAW ENFORCEMENT OFFICERS in pursuit of investigation, presentation, indictment, prosecution, redress, reform, and
punishment of DEFENDANTS shall hereafter be referred to as the DUE ADMINISTRATION OF JUSTICE.
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,
19
representation, services, and support alternatives to traditional domestic dispute services.
STUARTs Position Under the United States

102. STUART has been admitted to practice before the United States District Courts for the Southern Northern, and Central
Districts of the State of California, the District of Nevada, the District of Arizona, and the Eastern District of Texas. He has
appeared on briefs before the Ninth Circuit Court of Appeals, the Court of Appeals for the Federal Circuit, and in predecessor
litigation to the United States Supreme Court. On behalf of CCFC member Dr. Emad Tadros, STUART and CCFC assisted in
preparing briefing in a matter currently on Petition for Certiorari before the United States Supreme Court, entitled Tadros v.
Lesh, The State Bar of California, Case No. 12-1438. (Ex.2).
103. STUART has represented parties in cases involving federal subject matter in federal district courts and courts of appeal,
including civil rights, patent, copyright, trademark laws, antitrust, interstate commerce, racketeering, insurance, and
supplemental state law claims. These engagements include litigation matters now or previously pending within this District
as well as the Central and Northern Districts of California, the District of Arizona, District of Nevada, the Eastern District of
Texas, Northern District of Virginia, District of Delaware, and Southern District of New York. As such, STUART is an
officer of the courts, sworn to numerous oaths to protect, uphold, and defend the Constitution and the laws of the United
States. He has been similarly so bound having been admitted to the bar of three states.
104. STUARTS practice has been focused on federal engagements, including an Internship with the United States
Attorneys Office under Assistant United States Attorney Ronald Dixon (Hon. Ronald M. Dixon, Judge Supreme Court of the
District of Columbia) prosecuting felony crimes within the District of Columbia. STUARTS private practice has been
focused on federal Commerce and Trade and Intellectual Property matters under Titles 15, 17, 28, 35 United States Code and
related state law. He has tried, arbitrated, or mediated dozens of cases in district and state courts in several districts, and
represented clients before foreign and international bodies relating to international intellectual property, commerce, and law.
STUARTS practice shall hereinafter be referred to as STUARTS POSITION UNDER THE U.S.
105. He is a co-founder, President, and Chief Executive Officer of the California Coalition for Families and Children.
106. Details of STUARTS employment history with the United States Attorney for the District of Columbia, legal
engagements in federal-law matters and litigation appear on his resume at Exhibit 24.
LEXEVIA
107. At all times relevant hereto Plaintiff LEXEVIA was a professional law corporation founded by STUART in 2008. As of
April 15, 2010 it included STUART and three members. LEXEVIAS primary practice areas include intellectual property,
licensing, consumer fraud counseling and litigation, child protection regulation, privacy laws, technology, life science,
software, Internet and new media matters, and digital copyright and e-mail spam regulation. LEXEVIA lawyers have
spoken to numerous industry groups and written on related topics.
108. LEXEIVAS public interest or pro bono engagements have included numerous Civil Rights and Constitutional Law
matters, including representation of CCFC and numerous parents affiliated therewith. STUART founded LEXEVIA in 2008
after practicing for thirteen years as a partner or associate at international firms. Ex. 24; www.lexevia.com.
Business Development Activities of PLAINTIFFS

109. In furtherance of PLAINTIFFS FFRRESA and COMMERCIAL PURPOSES, in 2008 PLAINTIFFS established and
began growing independent parent-child-oriented private support networks and services to share resources, improve
awareness, advance joint social, political, and legal goals, protect and promote the independent interests of families and
children in domestic dispute matters, develop superior, more efficient, safer, and legal alternatives to traditional family law
20
practices, and to improve the visibility of parent-child interests to legal institutions including policymakers, law enforcement,
and courts. Recognizing abundant opportunity to fill a demand for more efficient, safe, and legal services within the family
law community, CCFCs early business development efforts focused on gaining intelligence about the Domestic Dispute
Industry to better understand the existing business structures and thereon reform and/or influence and build more efficient,
effective, safe, and legal services for parents and children who have no effective advocates in the present industry. These
goals include improving professional standards of care for DDI professionals-including DDIA, DDIPS, DDIJO, DDISW,
DDISO, and others, providing more consumer-oriented legal and government services, inform and improve industry
governance, improve licensing, certification, discipline, oversight standards, from consumer (parents and childrens)
perspectives, and develop or assist in developing superior service products to compete in that healthier environment.
110. In furtherance of the COMMERCIAL PURPOSES, PLAINTIFFS have undertaken the following business development
activities:
A. Studies of the closed society of the multi-billion dollar Domestic Dispute Industry (DDI) both from outside and
inside to observe and understand the DDI money flow from DDIL to DDIA, DDIP, DDIJO, DDISW, and DDISO;
B. Identification of existing industry-wide fraud schemes and artifices, including consumer fraud, Lanham Act violations,
bribery, kickbacks, invidious discrimination, unchecked abuse of power, nepotism, illegal conduct, and general
inefficiency;
C. Identification of the Domestic Dispute Industry dealmakers; the structure of its commercial relationships and networks
between DDIAS, DDIPS, DDIJOs, and other DDI agents and affiliates;
D. Contribute to the ongoing analysis of the DDI to prepare legal actions to restrain the DDI operatives from violations of
law providing it with unfair competitive advantages;
E. Contribute to preparation of competitive business models to better serve DDI clients with more efficient, less expensive,
less disruptive, ethical and legal services, including law, social/governmental parenting support and dispute resolution
services;
F. Development of personal and professional networks at events such as the SDCBA SEMINAR to convert traditional
Domestic Dispute Industry agents to CCFCs healthier, safer, more efficient, and legal alternative business models;
G. Promote parent/child (consumer) awareness of rights and options in holding existing black hat DDI affiliates to their
PROFESSIONAL DUTIES, and developing strategies for development and promotion of competitive services and increased
self-regulation of professionals to level the playing field for white hat competitors such as CCFC, LEXEVIA, Up To
Parents, and other white hat FLC members which chose to adopt safer, healthier, more efficient, and legal business models
(Ex. 25);
H. Develop understanding and awareness of existing free resources presently discouraged by DDICE affiliates such as
court-sponsored mediation, expert services, and ordinary adjudication; to understand the causes of the common perception
that divorce is inevitably brutalizing, unfair, and expensive (Ex. 25).
I. Obtain awareness useful to state and federal authorities in discipline and reform of the DDI operatives, through the DUE
ADMINISTRATION OF JUSTICE; (Ex. 4.);
J. Obtain awareness useful to CCFC in its activism, social justice, and justice system FFRRESA (Ex. 10);
K. Advance Lexevias marketable legal expertise in representing CCFC, parents, and DDI victims through potential
individual actions, class actions, civil rights, racketeering, or other lawsuits under the CRCCS adverse to the DDI (Ex. 1);
L. Advance CCFCs and LEXEVIAs knowledge and divisibility within the DDI as part of a foundation for building
improved domestic dispute service models for citizens in domestic disputes, including social, financial, psychological,
faith-based, and criminal justice system capabilities such as those presently operated by CCFC affiliate Up To Parents (Ex.
25).
21
111. PLAINTIFFS FFRRESA, COMMERCIAL PURPOSES, and BUSINESS DEVELOPMENT ACTIVITIES shall
hereinafter be collectively referred to as PLAINTIFFS PUBLIC BENEFIT ACTIVITY
IV. COMMON ALLEGATIONS

112. This matter arises out of DEFENDANTS criminal and tortious interference with and retaliation for PLAINTIFFS
PUBLIC BENEFIT ACTIVITY. DEFENDANTS are owners, associates, participants, collaborators, affiliates, benefactors,
associates of entities providing traditional professional, legal, social, and government services as part of the DDI. They
have acted aggressively and illegally against PLAINTIFFS to commit criminal and civil violations of PLAINTIFFS state
and FFR civil rights, obstruct justice, abuse process, interfere with existing and prospective business relations, and commit
civil and criminal violations federal law prohibiting RACKETEERING ACTIVITY under 18 U.S.C. 1961 (b). These and
other civil and criminal statutes set forth herein are collective referred to as the Civil Rights Criminal and Civil Statutes, or
CRCCS. The details of DEFENDANTS activities in violation of the FFR and actionable under the CRCCS have been
described in publications attached hereto as Exs. 1-10.
The SDCBA ENGAGEMENT
113. As part of PLAINTIFFS PUBLIC BENEFIT ACTIVITY, PLAINTIFFS have sought opportunities to ENGAGE FLC
professionals and clients to raise awareness of the ongoing unsafe, inefficient, and illegal activity and harm to clients being
caused by the FLC, and to influence DEFENDANTS toward adoption of safer, more efficient, and legal white hat
alternatives to FLC practices such as those advanced by PLATINTIFFS. In furtherance of those goals PLAINTIFFS have
initiated and/or coordinated numerous ENGAGEMENTS with FLC members, including DEFENDANTS.
114. One such ENGAGEMENT occurring on April 15, 2010 at the San Diego County Bar Association building at 1333 7th
Avenue, San Diego, California is the central subject of this litigation. In February, 2010, CCFC learned of a seminar to be
hosted in April, 2010 by SDCBA for various San Diego FLC professionals. The seminar was advertised to thousands of FLC
professionals and was to feature a panel of speakers including:
115. Family Court Division judicial officials (DDIJO) ALKSNE, C. GOLDSMITH, WOHLFEIL, LOWE, McADAM,
McKENZIE, FLC legal industry professionals (DDIA) C. BALDWIN, L. BALDWIN, CHUCAS, FLC behavioral sciences
professionals (DDIPS) CORRIGAN, DOYNE, GRIFFIN, HARGRAEVES, LEVIN, LOVE, and STOCKS, as well as
numerous other domestic dispute industry professionals, attorneys, and clients at a meeting hosted by Defendant SDCBA at
the SDCBA building (SDCBA SEMINAR).
116. The advertising brochure announcing the seminar and soliciting attendees identified the seminar theme as Litigants
Behaving Badly-Do Professional Services Really Work? is attached hereto as Ex. 26.
117. Though startled by the DDIs attack on its own client base, CCFC thought they had some answers to the FLCS
question, and viewed the seminar as an opportunity to ENGAGE key members of the FLC and their clients to offer answers.
CCFC saw the SDCMA SEMINAR as an excellent opportunity to raise awareness of the CCFC FFRRESA, the FFR, and
ongoing violations of the FFR and rights of action under the CRCCS, promote CCFC alternatives to illegal, harmful business
practices of the FLC, and continue CCFCs PUBLIC BENEFIT ACTIVITIES.
118. PLAINTIFFS determined to use the SDCBA SEMINAR to engage the FLC to advance CCFCs PUBLIC BENEFIT
ACTIVITIES. PLAINTIFFS and their affiliates sought to communicate one of CCFCs central messages that the FLC,
including judges, blame Litigants Behaving Badly (their own clients) for harms enabled-indeed largely manufactured-by
the Domestic Dispute Industrys own longstanding predatory commercial practices. CCFC saw the Litigants Behaving
Badly theme as part of the self-delusional propoganda engaged in by so many FLC members who, rather than recognizing
the harm their industry enables and healing themselvess, instead blame their own clients, who, quite true, do regularly abuse
process, their loved ones, and even themselves-in perfect compliance with DDI instructions.
22
119. To communicate an answer to the DDIs question Do Professional Services Really Work?, CCFC adopted a
counter-theme to LITIGANTS BEHAVING BADLY: JUDGES BEHAVING BADLY-IF YOU DONT FOLLOW THE
LAW, WHY WOULD WE? CCFC created promotional pamphlets and exhibits to distribute and large poster-sized
signage to display, and organized volunteers to participate in the ENGAGEMENT (hereinafter the SDCBA
ENGAGEMENT). True and correct copies of the signage is attached as Ex. 28.
120. In the JUDGES BEHAVING BADLY brochure, CCFC described CCFCs PUBLIC BENEFIT ACTIVITIES and
suggested alternatives to the FLCs diagnosis of the LITIGANTS BEHAVING BADLY problem:
San Diego Family Courts and Professionals are trained and paid to resolve family disputes efficiently. They rarely do. Why?
Courts, attorneys, and service providers are ineffective at assisting families in transition. In fact, they encourage conflict and
expense that harms litigants, their children, and your community.
Reducing conflict may seem impossible, but with a few available and free alternatives, you can make a difference. Heres the
truth you wont hear from tonights panel by the litigants whom you failed to invite.
You were hired to assist litigants in efficiently transitioning through a family dissolution. Litigants come to you hurt, angry
and fearful about an uncertain future for the most important things in their lives: their children, family, and financial
security. Unmanaged, that uncertainty leads to conflict.
Your duty to your clients and your community is to end conflict, end fear, and let them move on.
Yet family courts presently offer few tools to calm emotions, while providing abundant tools to make them even more
destructive. Courts and evaluators sit in passive judgment, yet rarely render guidance. Evaluators are scientifically
incapable of identifying the better parent, yet earn millions from desperate parents by pretending they can. Attorneys
rarely end conflict, but regularly use courts to encourage litigation, absorb resources, and harm their clients, children, and
community.
121. The brochure offered suggestions to supplement their answer to the SDCBAs Do Professional Services Really
Work? question:
1. Change your Attitude: You dont work in a sterile court of appeals. You work in peoples lives. Divorce hurtss. Families in
transition need healing and support-not sharp advocacy, endless services, and harsh judgment. Give compassion in their
crisis.
2. Change your Procedures: Easy OSCs and unpredictable outcomes encourage litigation, drive costs, increase conflict, and
facilitate abuse. Give restraint and predictability.
3. Change your Resources: Books in a waiting room are useless. Free, easy resources like UpToParents. org focus parents
on working together to promote their childs best interests independently. Give education and direction to establish long term
peace.
4. Change Peoples Lives: Years after divorce both parents will say Its a cesspool benefiting attorneys, evaluators, and
courts but immeasurably harmed me and my children. In other words, youre not doing your job.
At the end of your career, will you be able to say I helped to prevent that harm and to achieve peace and prosperity for my
community, clients, and their families.?
We will. Join us.
Ex. 28.iv
23
iv
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior
opportunity of being a good man. There will still be business enough. - Abraham Lincoln
122. The messages and themes of the CCFC Brochure, poster signs, and CCFC representatives communicated to the FLC at
the CCFC Engagement shall hereafter be referred to as the JUDGES BEHAVING BADLY MESSAGE.
123. The brochure referenced CCFCs website presently located at www.facebook.com/ccfconline where FLC members
could learn more about CCFCs PUBLIC BENEFIT ACTIVITIES. CCFC scheduled the ENGAGEMENT to coincide with
the SDCBA SEMINAR in front of the SDCBA Bar Building to enable maximum impact for the MESSAGE, and continue
developing knowledge, networks, contacts, and intelligence to advance CCFCs FFRRESA and BUSINESS
DEVELOPMENT with key FLC members, including DDIJO, DDIA, DDIPS, and DDIL. Ex.28.
The STUART ASSAULT

124. DEFENDANTS received CCFCs press releases announcing the ENGAGEMENT ahead of the Seminar. True and
correct copy of articles identifying a spike in downloads of the CCFC Press Release by DEFENDANTS is attached at
Exhibit 29 and incorporated herein as if set forth in full. DEFENDANTS also knew or had reason to know of the CCFC
FFRRESA by virtue of CCFCs past ENGAGEMENT, and FFRRESA.
125. CCFC members arrived early to the Engagement with signs and brochures. (Exs. 28-30) As attendees arrived, including
family court judges, attorneys, industry professionals, and clients, they could easily see CCFC members peacefully carrying
signs, walking on the sidewalks in front of the SDCBA building and through the crosswalks intersecting 7th and B. Streets.
126. The ENGAGEMENT was peaceful. Pamphlets were distributed as attendees entered the building, establishing
professional relationships valuable to CCFC and LEXEVIAs commercial interests. Numerous contacts were added to
CCFCs network, ideas and business contact information exchanged. No conflict, disruption, obstruction, or breach of the
peace occurred.
127. STUART did not participate in the ENGAGEMENT, but did attend SDCBA SEMINAR. His intent on attending the
SEMINAR was to focus on gaining knowledge in order to advance PLAINTIFFS PUBLIC BENEFIT ACTIVITY.
STUART was then a member of SDCBA and regular attendee at SDCBA events. A week prior to the SEMINAR he
purchased admission through SDCBAS online store as an SDCBA member in the way he has numerous times before
(STUART-SDCBA CONTRACT).
128. STUART entered the seminar as a normal attendee, signed in to the pre-registration table at the front door, received a
name badge, chose a seand awaited quietly for the seminar to begin. He maintained a normal professional demeanor-he was
not seeking and did not exercise FFRRESA at the seminar, but only to gather information about how the judges, attorneys,
and professional service providers conducted their affairs, marketed services, formed and maintained relationships, and made
money. He was dressed professionally, spoke to no one, and attended the seminar like any other attendee.
129. In attendance at the seminar were approximately 100 legal professionals, presumably members of the FLC, as well as
approximately fifteen uniformed armed Sheriffs Deputies spread in a uniformly-spaced perimeter along the walls of the
room. After STUART selected his seat, the Sheriffs Deputies changed their perimeter to positions nearer to STUART along
the walls, effectively surrounding STUART. Each deputy was watching STUART closely.
130. The seminar began with introductory remarks by Family Law Division supervising judge ALKSNE. However, after
only about two minutes of speaking, ALKSNE announced an abrupt break, apologizing that she needed a break so we can
straighten something out. One or more of the SDCBA Defendants had signaled or otherwise drew the attention of Defendant
ALKSNE to alert her of STUARTs presence and that the plan to eject STUART (described below) was underway.
131. ALKSNE left the podium, walked to the back of the conference room, and began speaking in a huddle of several other
24
defendants, including several Sheriffs Deputies, two security guards, and two or three other persons who appeared to be
SDCBA agents or seminar attendees.
132. The group conferred for several minutes, looking in STUARTS direction and referencing his presence with nods,
glances, and gestures. It was apparent that the group was discussing STUART. STUART remained seated quietly during the
unscheduled break.
133. After consulting with ALKSNE and others, two employees of defendant ODO and two Sheriffs Deputies approached
STUART where he was seated. The men asked STUART if he was Colbern Stuart. STUART acknowledged his identity.
The men then asked STUART to accompany them to leave the seminar. STUART declined and inquired why he was being
asked to leave. The men reiterated that the SDCBA wanted him to leave. STUART again refused, stating that he had
purchased a ticket and was intent on attending the entire seminar. STUART asked if he was breaking any laws or interfering
with the seminar in any way. The men replied no. STUART politely again expressed his desire and intent to remain
attending the entire seminar.
134. The men then informed STUART that if he did not leave voluntarily that they would forcibly eject him. STUART
objected, again stating that he intended to remain. The men then returned to where the others were huddled several feet
away. The group again conferred with similar references and gestures toward STUART.
135. Within moments, the same two security guards and two Sheriffs deputies approached STUART, who continued to sit
quietly awaiting the resumption of the seminar. The men again asked STUART to leave. STUART again refused. The men
then forced STUART to stand, grabbed his arms, forced his hands behind his back, and handcuffed him. They searched his
person, emptied his pockets, and eized his property, consisting of a notebook, reading glasses, a mobile phone, pen, spare
change, CCFC and LEXEVIA business cards, and a wallet. They forcibly led STUART out of the SEMINAR in front of
dozens of STUARTs professional colleagues including one of his law partners, fellow bar members, lawyers, judges,
professional service providers, clients, employees, and law enforcement officers.
136. The officers released STUART outside of the SDCBA building and informed him he was not free to return. The seminar
re-convened immediately after STUARTS removal. According PLAINTIFFS witnesses present at the SEMINAR, several
SDCBA panel speakers joked during the seminar I guess he got what he asked for and lets see if that gets them any
publicity. They made puns about CCFC as THE Litigants Behaving Badly, calling CCFC a bunch of borderlines crazy
parents and stating thats why we have to do what we do.
DEFENDANTS Conspiracy to Retaliate and Obstruct Justice in the STUART ASSAULT

137. Subsequent to the formation of the STUART-SDCBA CONTRACT and prior to the STUART ASSAULT,
DEFENDANTS, and each of them, were or became aware of the STUART-SDCBA CONTRACT, the planned
ENGAGEMENT, STUARTS planned attendance at the SEMINAR and ENGAGEMENT, his affiliation with PLAINTIFFS,
and PLAINTIFFS PUBLIC BENEFIT ACTIVITIES. DEFENDANTS considered PLAINTIFFS PUBLIC BENEFIT
ACTIVITIES to be a threat to traditional FLC persons, institutions, businesses, and enterprises, including those identified in
the ENTERPRISE ALLEGATIONS below.
138. Upon learning of the Engagement, DEFENDANTS and each of them affiliated, came to a meeting of the minds, and
agreed to support the STUART ASSAULT in retaliation, abuse of process, and obstruction of justice as described herein. In
doing so, DEFENDANTS and each of them CULPABLY (to be defined as unreasonably, unlawfully, willfully,
intentionally, maliciously, without probable cause, recklessly, knowingly, unjustified, brutal, and offensive to human dignity,
fraudulently, oppressively, wantonly, in premeditation, in deliberate indifference, with the intent to deprive rights, privileges
and immunities of others including plaintiffs and retaliate for exercising same, criminally, wrongfully, in bad faith, in
furtherance of on or more alleged criminal or civil CONSPIRACY, with deliberate indifference, in a manner that was
extreme, outrageous, unjustified, and in reckless disregard for the possibility of causing harm, damage, loss and constitutional
injury as elsewhere alleged) altered their planned behavior for the seminar to respond to PLAINTIFFS presence and the
ENGAGEMENT, including failing to exercise their duty to prevent or aid in preventing the acts of other DEFENDANTS as
alleged herein, to support, permit, facilitate, encourage, affiliate with, coordinate, collaborate, with one another in joint
25
purpose, efforts, enterprise and conspiracy, to CUPLAPLY retaliate for, obstruct, deter, hinder delay, oppress, obstruct,
unfairly compete with, and deprive PLAINTIFFS PUBLICL BENEFIT ACTIVITIES by committing the STUART
ASSAULT in defiance of the rule of law (the CRIMINAL CONSPIRACY).
139. DEFENDANTS acts in furtherance of conspiracy included alerting all other DEFENDANTS of PLAINTIFFS
PUBLIC BENEFIT ACTIVITIES, and the ENGAGEMENT, the STUART-SDCBA CONTRACT, STUARTs planned
attendance at the SDCBA SEMINAR, and the activities of others, including other DEFENDANTS in the CONSPIRACY TO
ASSAULT STUART.
140. One or more of DEFENDANTS communicated with DDISO DOES, and GORE, to coordinate an increased presence of
DDISO Defendants at the seminar, hired, altered, communicated with, or coordinated with ODO Defendants, communicated
with SDCBA, SDSD DOES 16-20, GORE, COUNTY OF SAN DIEGO, TRENTACOSTSA, RODDY, CJC, ALKSNE,
DOYNE, INC., DDIJO DOES 1-10 regarding of the ENGAGEMENT, researched PLAINTIFFS and their PUBLIC
BENEFIT ACTIVITIES, DUE ADMINISTRATION OF JUSTICE, the DDICE and other CRIMINAL and civil
CONSPIRACIES, facilitating ENTERPRISE affiliation, coordination, and cohesion, in defiance of the rule of law.
V. CHARGING ALLEGATIONS: CIVIL RIGHTS

141. For each Count, PLAINTIFFS reallege and incorporate all prior paragraphs as if set forth in full.
Count 1
Illegal Search, Seizure, Assault, Battery, Arrest, and Imprisonment Deprivation of Constitutional Rights Under Color
of State Law 42 U.S.C. 1983
U.S. Const. 1st, 4th, 5th, 6th, 7th, 8th, 14th Amend.
Supplemental State Claims
Against Defendants
SDCBA, ODO, DDISO DOES 1-15, GORE, DDIJO DOES 1-50, SAC, SIMI, BATSON
142. Each act of DEFENDANTS alleged in the STUART ASSAULT was done under color of state law.
143. DEFENDANTS in the STUART ASSAULT have:
Used, attempted, and threatened use of force CULPABLY and UNREASONBLY (to be defined as without due care, in
breach of duty, without provocation, justification, defense, privilege or immunity, and in an unjustified and excessive
manner);
Terrorized, seized, detained, restrained, arrested, imprisoned, assaulted, searched, injured, cruelly and unusually punished,
harassed, intimidated, and annoyed STUART, CCFC, LEXEVIA, and their clients, colleagues, partners, and affiliates in
violation of their and
Deprived STUART of and retaliated for his FFRRESA and PUBLIC BEEFIT ACTIVITIES.
These and other terroristic threats, abuse, assaults, and illegal activity described herein shall be denominated
HARRASSEMENT AND ABUSE.
26
144. At all times relevant hereto, STUART behaved REASONABLY (to be defined as lawfully, with due care, dutifully,
with probable cause), was unarmed, calm, and did not pose a disturbance or threat of death or grievous bodily injury to
defendants or others.
145. Prior to the STUART ASSAULT, no Defendant possessed a search or arrest warrant for STUART.
146. Prior to the STUART ASSAULT, STUART had violated no laws in any DEFENDANTS presence, and no
DEFENDANT had any knowledge of STUARTS having violated any law in or out of their presence.
147. No act alleged against any defendant in the STUART ASSAULT is a judicial act, an act intimately associated with the
criminal judicial process, or, with the potential exception of DDISO DOES, pursuant to any authority, charter, constitution,
regulation, or law.
148. As an actual and proximate result, PLAINTIFFS have been HARMED.
Count 2
Intentional Infliction of Emotional Distress Extreme and Outrageous Breach of Duty Deprivation of Constitutional
Rights Under Color of State Law 42 U.S.C. 1983
Against Defendants
SDCBA, ODO, DDISO DOES 1-15, GORE, DDIJO DOES 1-50, SAC, SIMI, BATSON
149. In performing the acts ascribed to them, DEFENDANTS knew or should have known that STUART was an attorney,
and assaulting him as described in front of dozens of his professional colleagues, clients, and judges would cause him severe
mental distress and resulting business injury. Specifically, DEFENDANTS knew or should have known:
A. PLAINTIFF maintained dozens of business, personal, and professional relationships in San Diego such that the STUART
ASSAULT in the presence of dozens of PLAINTIFFs business, personal, and professional colleagues would cause severe
emotional distress;
B. PLAINTIFF was an attorney at law licensed to practice in three states including California such that the STUART
ASSAULT would jeopardize STUARTS law practice and license, causing emotional severe distress therefrom;
C. PLAINTIFF was a founding member and office of LEXEVIA and CCFC such that assaulting STUART in front of CCFC
members and LEXEVIA partners, business colleagues, and clients would intimidate, threaten, harass, annoy, and terrorize
PLAINTFFS and their affiliates, furthering HARASSMENT AND ABUSE, and causing cause PLAINTIFFS and their
affiliates to:
(i) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an
official proceeding;
(iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in
an official proceeding;
27
(iv) be absent from an official proceeding to which that person has been summoned by legal process; and
(v) be otherwise hindered, deterred, delayed, or wrongfully influenced thereby.
(collectively hereinafter referred to as CHILL) from further DUE ADMINISTRATION OF JUSTICE, FFRRESA, and
PUBLIC BENEFIT ACTIVITY.
D. That CHILLING PLAINTIFFS and their affiliates would further injure PLAINTIFFS affiliates PUBLIC BENEFIT
ACTIVITIES further causing PLAINTIFFS HARM.
E. STUART, was the founder and lead partner of the law firm LEXEVIA, with offices in San Diego and Los Angeles, such
that the STUART ASSAULT and resulting impact on LEXEVIA would cause loss of business assets, income, and good will,
causing further emotional distress to STUART.
Count 3
Culpable Breach of Duty under California Government Code 820 Deprivation of Constitutional Rights 42 U.S.C.
1983
U.S. Const. 1st, 4th, 5th, 6th, 7th, 8th, 14th Amend
All Defendants as Indicated
151. At all times pertinent hereto, DEFENDANTS, and each of them, owed one or more PROFESSIONAL DUTIES to
PLAINTIFFS with respect to their status as citizens, professionals, attorneys, law enforcement officers, fiduciaries, color of
state law actors, judicial officers, employers/employees, and their agents, officers, affiliates, and collaborators.
152. Said PROFESSIONAL DUTIES include:
A. All DEFENDANTS: Duty of ordinary reasonable care: The duty to act REASONABLY, and to avoid acting
UNREASONABLY and CULPABLY.
B. COLD: Exercise color of law powers only in the presence of jurisdiction: those provided under enabling legislation, rules,
charters, or constitutions; protect, uphold, and defend the laws and the Constitution of the United States; act only in the
public interest; provides only honest government services; avoid all conflict, undue influence, bribery, self-dealing, bias,
nepotism; commit no deprivations of clearly established civil rights; create or inflict no HARM unless specifically authorized
after due process of law;
C. DDIPS: Professional duties to observe all professional standards relevant to their respective professional licensure, best
practices, and specialty standards, do no harm (Ex. 36);
D. Fiduciaries (DDIA, DDIPS): Duties of trust and loyalty trustee of treating pecuniary interests of named or foreseeable
beneficiaries equal to own;
E. DDIJO: Protect rights of those in courtroom; ensure rights; all duties enumerated in Canons 1-6 (Ex. 39) and related
codes;
F. DDIAS: Professional competence, loyalty, zealous advocacy and those specifically articulated in the Model Code of
28
Professional Conduct (Ex. 40);

G. Supervisors: train, enforce law, implement, create, monitor policy, background checks, discipline, terminate, exercise
power to prevent or aid in preventing breaches of others with power to influence or control;
H. Contractual: Specific duties under contract, and duty of good faith and fair dealing;
I. Municipal: Enact no policies, rules, laws, customs, behaviors or procedures which are intended to or deliberately
indifferent to constitutional injury;
J. Therapeutic: When acting in any therapeutic capacity-as a DDIJO (therapeutic jurisprudence), DDISW (public
service), DDIPS (psychology, even as a forensic psychologist), or DDIA, observe the ancient rule of genuine healers:
above all else, do no harm.
Exhibits 36, 39, 40 are incorporated herein as if set forth in full.
153. Pursuant to California Govt. Code 820, a public employee is liable for injury caused by his act or omission to the
same extent as a private person. This special ordinary care duty of California state public employees extends not only to
avoid harm by the public employees direct actions, but to avoid harm to all those who are foreseeably injured by virtue of
the public employees actions which set in motion acts that result in constitutional injury.v
v
California law expressly imposes liability on a public employee for his own act or omission. (Cal.Govt.Code 820 (a public
employee is liable for injury caused by his act or omission to the same extent as a private person, except as otherwise provided
by statute).) In the same statute that relieves a public employee of liability for an injury caused by the act or omission of another
person, the Legislature declared: Nothing in this section exonerates a public employee from liability for injury proximately caused
by his own negligent or wrongful act or omission. (Cal.Govt.Code 820.8.) Johnson v. Duffy, 588 F.2d 740 (9th Cir.1978). A
person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, [or]
participates in anothers affirmative acts ... that causes the deprivation of which [the] complaint is made. Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978). However, personal participation is not necessary to establish Section 1983 liability. Id. Anyone
who causes any citizen to be subjected to a constitutional deprivation is also liable. Id. The requisite causal connection can be
established by setting in motion a series of acts ... the actor knows or reasonably should know would cause others to inflict the
constitutional injury. Vierria v. California Hwy Patrol, 644 F.2d 1219 (ED Ca 2009).
154. By virtue of the State of Californias special statutory duties imposed on COLD, PLAIINTIFFS possess reciprocal rights
under state and federal due process to the observance of those duties. (CALIFORNIA FUNDAMENTAL RIGHTS) (CFR).
155. Said PROFESSIONAL DUTIES extend to PLAINTIFFS.vi
vi
To state such a claim under Section 1983, a plaintiff must allege that (1) she was deprived of a right secured by the Constitution
or laws of the United States, and (2) the alleged deprivation was committed under color of state law. American Mfrs. Mut. Ins. Co.,
526 U.S. at 50, 119 S.Ct. 977. A person deprives another of a constitutional right, within the meaning of section 1983, if he does
an affirmative act, [or] participates in anothers affirmative acts ... that causes the deprivation of which [the] complaint is made.
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). However, personal participation is not necessary to establish Section 1983
liability. Id. Anyone who causes any citizen to be subjected to a constitutional deprivation is also liable. Id. The requisite causal
connection can be established by setting in motion a series of acts ... the actor knows or reasonably should know would cause
others to inflict the constitutional injury. Johnson, 588 F.2d at 743-44. Vierria v. California Highway Patrol, 644 F. Supp. 2d
1219 (E.D. Cal. 2009)
156. In performing the acts ascribed to them, DEFENDANTS, and each of them UNREASONABLY and CULPABLY
breached one or more PROFESSIONAL DUTIES, depriving one or more of PLAINTIFFS of their CALIFONRIA
FUNDAMETNAL RIGHTS, PRIVILEGES AND IMMUNITIES.
29
157. As an actual and proximate result, PLAINTIFFS have been HARMED

Count 4
Trespass Under Color of Law 42 U.S.C. 1983
Against All COLD
158. Each Defendant acting under color of state law is empowered and restrained from acting by virtue of the respective
constitutions, charters, articles of incorporation, appointments, or other entity formation documents describing the
Defendants jurisdiction.
159. In proceeding as described in the STUART ASSAULT Defendants, and each of them acted in the complete absence of
jurisdiction, causing off the reservation injury.vii
vii
Butz v. Economou, 438 U.S. 478, 519 (1978) (Rhenquist, J., concurring).
160. In exceeding the limits of their authority, DEFENDANTS, and each of them, committed a trespass onto the property,
persons, rights, privileges, and immunities of PLAINTIFFS and are strictly liable for all HARM resulting therefrom.
Count 5
Supervisory Liability Deprivation of Rights under Color of State Law 42 U.S.C. 1983
Against SUPERVISING DEFENDANTS: SDCBA, SDSD DOES 16-20, GORE, COUNTY OF SAN DIEGO,
TRENTACOSTSA, RODDY, CJC, AOC, CANTIL-SAKAUYE, ALKSNE, DOYNE, INC., DDIJO DOES 1-20
162. SUPERVISING DEFENDANTS, and each of them, at all times had the power to oversee, supervise, train, discipline
one or more other DEFENDANTS herein so as to prevent or aid in preventing the commission of acts of each other
DEFENDANTS as alleged herein, including the DDIJO COMPLAINTS, the DOYNE COMPLAINTS, the FEDERAL
ENGAGEMENT, the RACKETEERING ACTIVITY, and the STUART ASSAULT.
163. SUPERVISING DEFENDANTS knew or should have known of:
A. PLAINTIFFS FFRRESA;
B. The widespread violations of the FFR and CFR, CULPABLE breach of PROFESSIONAL DUTIES, and other illegal
activities of other defendants as alleged herein;
30
C. The DDIJO and DOYNE COMPLAINTS; and

D. The ENGAGEMENTS and DUE ADMINISTRATION OF JUSTICE of PLAINTIFFS and others regarding
DEFENDANTS, the DDIJO, DDIA, DDIPS, SAC, ENTERPRISE and CRIMINAL CONSPIRACY operators and affiliates.
164. After learning of PLAINTIFFS FFRRESA, DEFENDANTS had a duty to investigate, oversee, re-train, discipline,
and/or terminate those over whom they had the power to influence or control. Supervising Defendants failed to implement
remedial measures such as reassignment, removal or other disciplinary actions to prevent further constitutional injuries to
PLAINTIFFS and those similarly situated.
165. Having this knowledge, SUPERVISING DEFENDANTS neglected or refused to prevent or aid in preventing the same.
166. SUPERVISING DEFENDANTS UNREASONABLY and CULPABLY failed to implement appropriate training,
supervision, hiring, discipline, programs to assure persons over whom they had the ability to influence or control would not
commit the acts complained of, including the acts alleged in the DDIJO and DOYNE COMPLAINTS and the STUART
ASSAULT.
167. In performing their supervising duties, SUPERVISING DEFENDANTS implemented customs, policies, or practices
that created unreasonable risks that subordinates would perpetrate the constitutional injuries complained of by PLAINTIFF,
including:
A. Directing, rewarding, encouraging, or acting with deliberate indifference to the actions of subordinates which led to
PLAINTIFFs constitutional injuries; and
B. Failing to change the customs, practices, or policies, or employ corrective practices for subordinates, after having
knowledge of actual or threatened constitutional injury.
C. Facilitating, acquiescing to, endorsing, or ratifying HARRASMENT AND ABUSE
168. Each Supervising Defendant played a role in forming and/or implementing the customs, policies, and/or practices
causing PLAINTIFFs constitutional injury.
169. Each Supervising Defendant had prior knowledge of acts of their subordinates, supervisors and/or trainees which cause
constitutional injury similar to that complained of by PLAINTIFF.
170. Despite the knowledge of past/prior acts causing or likely to cause constitutional injury, Supervising Defendants took no
and/or inadequate corrective action, and in fact encouraged and/or covered up for the past/prior acts that caused or were
likely to cause constitutional injury.
Count 6
Municipal Liability Deprivation of Rights under Color of State Law 42 U.S.C. 1983
U.S. Const. 1st, 4th, 5th, 14th Amend.
Against Defendants County of San Diego, SCSDC, CJC, AOC, CJP, SDSD
172. DEFENDANTS in this Count are governments beneath the state level within the definition of that term in Board of
Commrs v. Brown, 520 U.S. 397 (1997). (MUNICIPAL DEFENDANTS).
31
173. DEFENDANTS maintained rules, policies, customs, procedures, traditions, practices and permitted behaviors by
policymakers themselves which perpetrated an intentional, reckless, and deliberate indifference to the likelihood of
constitutional injury of the type caused to PLAINTIFFS in the DDIJO, DOYNE, INC., COMPLAINTS, and STUART
ASSAULT, including customs and policies in violation of FFR and CALIFORNIA FUNDAMENTAL RIGHTS, and
permitting HARASSMENT AND ABUSE against those exercising FFRRESA.
174. DEFENDANTS were acting pursuant to such custom and policy in committing the acts ascribed to them herein.
Count 7
Respondeat Superior Liability
Against Defendants SDCBA, SDSD, GORE, County of San Diego, ALKSNE, DOYNE, INC., DDIJO DOES 1-10
176. At all times pertinent hereto, each SAC Defendant was acting as an agent or employee of each RESPONDEAT
SUPERIOR DEFENDANT herein. As a result, each of the wrongs or acts alleged against each Defendant herein is
attributable to each Respondeat Superior Defendant.
Count 8
Breach of Contract, Covenant of Good Faith and Fair Dealing
Against SDCBA
177. In committing the STUART ASSAULT, Defendant SDCBA UNREASONABLY and CULPABLY deprived STUART
of his rights under the STAURT-SDCBA CONTRACT without cause, notice, justification, or abatement, thereby breaching
the contract.
178. Based on Defendant SDCBAs participation in the CRIMINAL COSPIRACY, STUART ASSAULT, ENTERPRISES,
and other CULPABLE acts alleged herein, this breach of contract was, in bad faith, malicious, fraudulent, and oppressive in
breach of the covenant of good faith and fair dealing.
Count 9
Wrongful Inducement To Breach of Contract, Covenant of Good Faith and Fair Dealing; Wrongful Interference with
Prospective Contractual Relations; Defamation
Deprivation of Constitutional Rights Under Color of Law U.S.C. 1983
32
Against SAC Defendants
180. DEFENDANTS and each of them were aware of PLAINTIFFS and their affiliates, PLAITNIFFFS PUBLIC
BENEFFIT ACTIVIES and the STUART-SDCBA CONTRACT prior to the STUART ASSAULT.
181. DEFENDANTS, and each of them, CULPABLY planned, coordinated, communicated, and cooperated with SDCBA to
induce and affect the STUART ASSAULT knowing and intending the same to be a breach of the SDCBA CONTRACT and
covenants thereto.
182. DEFENDANTS actions were undertaken willfully, maliciously, and fraudulently with the intent to wrongfully and
illegally, arrest, imprison, intimidate, assault, humiliate, embarrass, and defame and wrongfully HARM PLAINTIFF causing
interference with existing and prospective contractual relations as alleged above.
Count 10
Deprivation of and Retaliation for FFRRESA Under Color of Law 42 U.S.C. 1983
U.S. Const. 1st, 5th, 14th Amend.
Against COLD, DOYNE, INC.
184. DEFENDANTS were aware of the CCFC FFRRESA, BUSINESS DEVELOPMENT and ENGAGEMENT before the
SDCBA SEMINAR.
185. DEFENDANTS disfavored PLAINTIFFS PUBLIC BENEFIT ACTIVITIES; Specifically PLAINTIFFS JUDGES
BEHAVING BADLY MESSAGE, and PLAINTIFFS ongoing FFRRESA.
186. DEFENDANTS affected the STUART ASSAULT to cause PLAINTIFS, their members and affiliates, HARM, injury,
embarrassment, intimidation, and humiliation, to their person and property CULPABLY and in retaliation for and with the
intent to suppress, deprive, interfere with, and obstruct PLAINTIFFS FFRRESA.
187. DEFENDANTS actions were CULPABLE in violation of PLAINTIFFs rights under the First, Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution.
188. By the STUART ASSAULT DEFENDANTS intended, attempted, and did CHILL PLAINTIFFS and their affiliates
from further FFRRESA as PLAINTIFFS, their affiliates, including the DDIA, DDIPS, DDIJO, DDIL, and others at or aware
of the STUART ASSAULT were frightened, worried, demoralized, and emotionally and psychologically traumatized.
PLAITNIFFS and their affiliates have since abandoned further PUBLIC BENEFIT ACTIVITY, dissembled, disassociated,
avoided interactions with other PLAINTIFFS, causing personal and property HARM to PLAINTIFFS. After the STUART
ASSAULT, PLAINTIFFS were inundated with business contacts, queries, and requests for direction which PLAINTIFFS,
compromised, terrorized, and debilitated by the affect of the HARRASSMENT AND ABUSE, could not adequately respond
to, further exacerbating damages to PLAINTIFFS CCFC FFRRESA, and PUBLIC BENEFIT ACTIVITY.
189. Further, PLAINTIFFS clients, professional colleagues, and affiliates at or aware of the STUART ASSAULT who
previously had high opinions of PLAINTIFFS and referred them significant business stopped referring business to
33
PLAINTIFFS and their affiliates out of fear of reprisal by DEFENDANTS.

Count 11
Preventing Officer from Performing Duties 42 U.S.C. 1985(1)
Against SAC Defendants
191. In committing the acts alleged above, Defendants CONSPIRED:
A. To prevent, by force, intimidation, or threat, STUART (1) from accepting or holding a POSITION UNDER THE U.S.; (2)
from discharging his PROFESSIONAL DUTIES; and
B. to induce by like means STUART to leave the State of California, the City of San Diego, the County of San Diego, the
SDCBA SEMINAR where STUARTs PROFESSIONAL DUTIES were and are required to be performed;
C. to injure STUART in his person or property on account of his lawful discharge of his PROFESSIONAL DUTIES under
the United States, while engaged in the lawful discharge thereof; and
D. to injure STUARTs property so as to molest, interrupt, hinder, or impede him in the discharge of his PROFESSIONAL
DUTIES under the United States.
Count 12
Obstructing justice; intimidating party, witness, or juror 42 U.S.C. 1985(2)
Against all Defendants
193. PLAINTIFFS are members of and/or advocates for each of the following three classes subject to historic de facto and de
jure invidious discrimination in violation of the 5th and 14th Amendment rights to Equal Protection of the Laws (collectively
EQUAL PROTECTION CLASSES):
A. Parent-Child Class
194. Parents and Children have been identified as a special class entitled to unique fundamental parental constitutional rights,
including special status under the rights to equal protection of the laws. See Troxel v. Granville, 530 U.S. 57 (2000); FFR
supra.
B. Domestic Relations Class

34
195. Similarly, state and federal authorities in California have identified a special domestic relations class as entitled to
heightened protection under the Equal Protection Clause. The state of California has identified the Domestic Relations
Class as:
... an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with
whom the suspect 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.

196. Like marital status, the DOMESTIC RELATION Class is defined by a relational characteristic: persons in a current or
former identified relationship, but only to interaction between others in the same Class. For example, a husband and wife are
within the DOMESTIC RELATIONS Class with respect to one another, but not the rest of the world.
197. The DOMETIC RELATIONS CLASS is also entitled to special protection because of a lengthy history of invidious
discrimination against its members. This history and a complete explanation of the DOMESTIC RELATIONS CLASS status,
jeopardy, invidious discrimination, and rationale for special status under 42 U.S.C. 1985(2) and (3) are discussed in detail
in the July 24, 2013 letter from CCFC to the City of San Diego, and the San Diego Family Justice Center and the Tadros v.
Lesh Petition for Certiorari, Exhibits 1 and 2 incorporated herein by reference.
198. Discrimination against the DOMESTIC RELATIONS CLASS is invidious social, economic, and legal discrimination
similar to racial, ethnic, gender, or legitimacy. In addition to the inevitable and debilitating economic, social, and
psychological impact of divorce, children and parents within the DOMESTIC RELATIONS CLASS are the historical targets
of ridicule, prejudice, and scorn amounting to invidious discrimination. Domestic Relations Class members are stamped with
stereotypes as broken family, latch-key kids, damaged goods, gold diggers, divorcees, sugar daddies, first
wives, wife beater, histrionics, single moms, broken homers-and the list goes on.
C. Gender Class
199. PLAINTIFF STUART a male within the recognized equal protection class of gender. The invidious discrimination
against males by DEFENDANTS has been described in detail in a publication by Dr. Stephen Baskerville entitled Taken Into
Custody, The War Against Fathers, Marriage, and the Family, Cleveland House Publishing, Inc., 2007 and in Exhibit 1
hereto. Dr. Baskerville has extended permission to reprint portions, but not all of his publication herein. The publication is
therefore referenced and incorporated herein as if set forth in full as Exhibit 13; the entirety is available at ISBN-10:
1581825943, ISBN-13: 978-1581825947.
D. Class of One
200. STUART, CCFC, LEXEVIA each comprise a class of one for purposes of PLAINTIFFS FFRRESA on behalf of
themselves and other equal protection classes.
201. No COLD may legally act with discretion in the absence of jurisdiction established by the constitution, statutes, laws,
contract, or regulation.viii
viii
Butz, supra at ; Stump v. Sparkman, 435 U.S. 349 (1978).
35
202. PLAINTIFFS membership in and advocacy for the EQUAL PROTECTION CLASSES was known to and targeted by
DEFENDANTS prior to the SDCBA SEMINAR. DEFENDANTS CULPABLY undertook each of the acts ascribed to them
with the intent affect the STUART ASSAULT and HARRASSMENT AND ABUSE with the intent to deprive PLAINTIFFS,
and each of them, of equal protections, privileges, and immunities, including rights related to FFRRESA, rights as advocates
for and on behalf of the EQUAL PROTECTION CLASSES.
203. In performing the acts alleged above, DEFENDANTS conspired:
A. to deter, PLAINTIFFS, by the STUART ASSAULT and HARRASSMENT AND ABUSE, from attending or testifying
freely, fully, and truthfully as a party or witness in PLAINTIFFS FFRRESA, or from testifying to any matter, freely, fully,
and truthfully;
B. to injure PLAINTIFFS, by the STUART ASSAULT and HARRASSMENT AND ABUSE, in their person or property on
account of having participated in FFRRESA or testified in conjunction with the FFRRESA and the DUE
ADMINISTRATION OF JUSTICE;
C. to influence, by the STUART ASSAULT and HARRASSMENT AND ABUSE, the verdict, presentment, or indictment of
any grand or petit juror in connection with PLAINTIFFS FFRRESA and the DUE ADMINISTRATION OF JUSTICE;
D. committed the STUART ASSAULT and HARRASSMENT AND ABUSE for the purpose of impeding, hindering,
obstructing, or defeating, the DUE ADMINISTRATION OF JUSTICE and PLAINTIFFS FFRRESA with intent to deny to
PLAINTIFFS as members and advocates for the EQUAL PROTECITON CLASSES the equal protection of the laws and to
E. by STUART ASSAULT and HARRASSMENT AND ABUSE, injure PLAINTIFFS in their property for lawfully
enforcing, or attempting to enforce, the right of PLAINTIFFS and THE EQUAL PROTECTION CLASSES, to the equal
protection of the laws.
204. Hereinafter collectedly referred to as the CIVIL CONSPIRACY.
As an actual an proximate result, PLAINTIFFS have been HARMED.
Count 13
Conspiracy to Deprive Rights and Privileges 42 U.S.C. 1985(3)(a)
205. In committing the STUART ASSAULT, DEFENDANTS CULPABLY acted in CIVIL CONSPIRACY for the purpose
of depriving PLAINTIFFS individually as members of and advocates for the EQUAL PROTECTON CLASSES, of the equal
protection of the laws and equal privileges and immunities under the laws, including but not limited to their FFRRESA, the
DUE ADMINISTRATION OF JUSTICE, and retaliating for exercise thereof, causing PLAINTIFFS deprivation and injury
therefrom.
Count 14
Conspiracy to Deprive of Constitutional Rights 42 U.S.C. 1985(3)(b)
36
207. In committing the STUART ASSAULT, DEFENDANTS CULPABLY CONSPIRED to cause the STUART ASSAULT
for the purpose of preventing or hindering the FEDERAL LAW ENFORCEMENT OFFICERS and color of state law actors
identified herein from giving or securing to all persons within the state of California, including the EQUAL PROTECTION
CLASSES and PLAINTIFFS individually as members of and advocates for the EQUAL PROTECTON CLASSES.
Count 15
Conspiracy to Deprive of Constitutional Rights 42 U.S.C. 1985(3)(c)
209. In committing the STUART ASSAULT, Defendants CULPABLY and UNREASONABLY acted and CONSPIRED to
prevent by force, intimidation, or threat, PLAINTIFFSS FFRRESA as a member or on behalf of each EQUAL
PROTECTION CLASS, in a legal manner, and to injure PLAINTIFFS in person and property on account thereof.
210. PLAINTIFFS FFRRESA included support and advocacy toward and in favor of federal processes and institutions,
including the election of lawfully qualified persons as electors for President or Vice President, or as a Member of Congress of
the United States.
Count 16
Failure to Prevent or Aid in Preventing Deprivation of Constitutional Rights 42 U.S.C. 1986
Against all COLD
211. DEFENDANTS, and each of them, had knowledge of all facts alleged herein, including that the acts CONSPIRED to be
done, and committed as alleged in Counts 11-15 were about to be committed.
212. DEFENDANTS, and each of them, by virtue of their relationships with each other defendant, their authority under color
of law, and PROFESSIONAL DUTIES, had power to prevent or aid in preventing the commission of the same.
213. DEFENDANTS, and each of them, neglected or refused to exercise their powers to prevent or aid in preventing the
commission of the same.
214. The acts as alleged herein were in fact committed as alleged.
Count 17
Breach of Contract, Fraud, Abuse of Process, CULPABLE Breach of Duty 42 U.S.C. 1983
37
U.S. Const. 4th, 5th, 14th Amend.

Against DOYNE, INC., ABC&K, WOHLFEIL, SCHALL
216. On or about September 12, 2008, STUART and DOYNE, INC. entered into written and oral contracts with PLAINTIFF
(STUART- DOYNE CONTRACT). A true and correct copy of which is in DOYNE INCs possession and as such is
referenced as Exhibit 31 as if attached hereto.
217. DOYNE, INC. made further representations and warranties to STUART as follows:
A. That DOYNE was only authorized and would only act to mediate, and could not perform a custody evaluation, therapy,
forensic investigation analysis or evaluation or act as a witness in court;
B. That DOYNE would not permit ex parte contact, and would take no action or recommendation except as authorized by the
court or the parties;
C. That DOYNE would base his reasoning and actions on actual evidence and law;
D. That all parties would be afforded notice and opportunity to be heard before DOYNE took any action or made any
recommendations regarding the matter;
E. That DOYNE INC. was an alternative to court and governmental intervention, safer, more private, and less expensive than
court, but with the same procedural safeguards;
F. That DOYNE would quickly work toward 50/50 custody, that it would only take a few sessions, and that his fees and
expenses would not exceed the initial $5,000 retainer;
G. That the DOYNE INC. mediation process would be completed in a month or two;
H. That DOYNEs contact with the court would be in the form of a written report which both parties would have an
opportunity to review, comment on, contest, supplement, and collaborate over before submission to the court;
I. That DOYNES had no authority to take actions or make judgments, but only to work toward cooperative solutions;
J. That DOYNE would not recommend any solution that would harm, burden, or obstruct any party, and that he was honest,
fair, and completely competent to perform mediation services.
218. These representations were false when made.
219. As described more fully in Exhibits 22 and 23, during the course of performance, on or about June, 2009, DOYNE INC
breached the contracts and representations by failing to abide by each of the above reference promises, his PROFESSIONAL
DUTIES, including duties of disclosure, loyalty, honesty, and good faith, as well as breaching one or more provision of the
written contract.
220. Specifically:
A. DOYNE extended the mediation for over a year, insisting on weekly sessions for months on end to address issues he had
not been authorized to mediate;
B. DOYNE was not only unable to resolve even minor issues successfully, he welcomed and encouraged both parties to bring
up new issues unrelated to child custody, effectively attempting to insert himself as an arbiter for all disputes-real or
imagined-between the parties; and by otherwise extended the mediation for over a year to increase his fees;
C DOYNE refused to investigate STUARTs claims and evidence that MS. STUART was abusing their son, Croix Stuart, in
violation of his professional duties to report child abuse (Ex. 12);
38
D. DOYNE exceeded his authority in filing false and misleading reports with San Diego County child protective services
alleging that PLAINTIFF had held his son upside down over a balcony when DOYNE in fact knew and later admitted, that
claim was untrue;
E. That San Diego County Child Protective Services had performed an investigation of DOYNEs allegations against
PLAINTIFF and found DOYNEs allegation to be false;
F. Because of DOYNEs false and misleading letters and report to San Diego Child Protective Services, DOYNE caused the
removal of PLAINTIFFs son Croix Stuart from PLAINTIFFS shared custody and awarded sole custody to Petitioner Ms.
Stuart;
G. The DOYNE repeatedly ignored or failed to follow up on PLAINTIFFs concerns that Croix Stuart was being abused,
manipulated, and alienated by Petitioner Ms. Stuart;
H. That DOYNE was forcing PLAINTIFF to pay for services of DOYNE which PLAINTIFF objected to, did not request,
and were wasteful and unnecessary; and
I. That DOYNE effectively held Stuarts son hostage, dangling his custody decisions between the couple, increasing
adversarial hostilities, strife, and conflict, in order solely to run up his fees in the case;
J. That DOYNE was in fact unauthorized to perform any work on the matter as he was ineligible, unqualified, and had failed
to establish his eligibility by appropriate procedure; and
K. Further breaches of each representation identified herein and in Exs. 2, 3, 4, 7, 10, 14, 18, 19, 20, 22, and 23 hereto.
DOYNE INC.S Retaliation

221. In response to these breaches, on or about March 1, 2009, STUART terminated DOYNES services.
222. In addition to complaining to and firing DOYNE, PLAINTIFF also filed formal complaints with DOYNEs landlord,
Scripps Memorial Hospital, the State of California Board of Psychology, the LAW ENFORCEMENT OFFICERS as part of
his FFRRESA. Doyne knew of these complaints.
223. A true and correct copy letters to and concerning DOYNE relating to these allegations are attached as Exhibits 22-23.
224. In response to PLAINTIFFs objections and reports detailed above DOYNE INC. retaliated against STUART as
described above relating to the STUART ASSAULT and by committing one or more of the following acts against STUART:
A. Committing perjury in a hearing relating to the PLAINTIFF Stuarts son, Croix Stuart;
B. Continuing to file false reports and encourage the (false) investigation of his initial report against PLAINTIFF Stuart;
C. Attempting to terrorize, intimidate, distress, harm, defraud, extort, and rob Stuart; and
D. Requesting a bribe.
DOYNE INCS Terrorist Threats to extort, defraud, HARM STUART and his son, Croix Stuart
225. In May, 2009, DOYNE telephoned STUART at home requesting that STUART pay DOYNE for services he falsely
39
claimed to have provided.

226. DOYNE advised STUART that he had sent STUART several invoices which STUART had advised DOYNE he would
not pay.
227. DOYNE advised STUART that he should come current and that if he did so, DOYNE would work with you to get
more time with your son.
228. Given DOYNES pattern and history of professional incompetence, fraud, breach of contract, HARRASSMENT AND
ABUSE, deprivation of rights, false CPS report, overbilling, and other CULPABLE conduct as alleged herein, STUART was
horrified at what he regarded as predatory behavior and an apparent threat to commit further acts of perjury, abuse of process,
and manipulation regarding custody of STUARTs son if STUART did not come current.
229. He was further extremely distressed that DOYNE then maintained a relationship with his Croix Stuart and Lynn Stuart
as a therapist, and would inflict further harm or commit further facilitation of Ms. Stuarts child abuse if STUART did not
comply with DOYNEs demand for a bribe. Ex. 4, 22
230. STUART refused to pay DOYNE any more money, but was horrified, traumatized, and severely distressed as a result of
DOYNES behavior.
231. As an actual and proximate result, STUART has been HARMED.
BLANCHETS Agency, Representations, Warranties for DOYNE INC:

232. STUART hired DOYNE INC. pursuant to various material representations and warranties by BLANCHET. These
representations and warranties are set forth in Exhibit 14 and incorporated herein by reference.
233. STUARTS reliance on these representations was reasonable.
234. Said representations and warranties were in fact false when made.
Count 18
CULPABLE Breach of Duty Deprivation of Rights Under Color of Law 42 U.S.C. 1983
Against DOYNE INC Supervising Defendants
WOHLFEIL, SCHALL, ALKSNE, TRENTACOSTA, SCSDC
236. DOYNE SUPERVISING DEFENDANTS, and each of them, at all times had the power to oversee, supervise, train,
discipline DOYNE and DOYNE INC. so as to prevent or aid in preventing the commission of DOYNE and DOYNE INC.s
acts as alleged herein.
237. On or about April 10, 2008, Defendant WOHFEIL recommended to oversee Defendant DOYNE to mediate custody
in the Stuart Dissolution.
40
238. From the date WOHFEIL recommended Defendant DOYNE until the Stuart dissolution was re-assigned to Defendant
SCHALL, Defendant WOHFEIL acted, inter alia, in an administrative capacity in supervising Defendants DOYNE as a
professional Forensic Psychologist and Defendant DOYNE INCs as commercial psychology enterprise and in the Stuart
Dissolution.
239. DOYNE INC. was hired by STUART pursuant to representations and assurances from WOLFEIL and BLANCHET that
DOYNE INC. was a trustworthy, competent mediator. WOHLFEIL retained administrative supervisory authority, oversight,
and ability to prevent or aid in preventing the breaches of duty, fraud, extortion, and abuse of DOYNE INC. described herein.
240. In or about December, 2008, SCHALL took over WOHLFEILS courtroom, including the STUART v STUART matter.
As such, SCHALL undertook WOHLFEILS responsibilities for supervision and oversight of DOYNE and DOYNE INC.
241. From the date the Stuart Dissolution was re-assigned from Defendant WOHFEIL to Defendant SCHALL, until on or
about November, 2009, Defendant SCHALL acted, inter alia, in the same administrative capacity in supervising Defendants
DOYNE and DOYNE INC.
242. Defendants WOHLFEIL and SCHALL had independent and/or joint and several Supervising Authority over Defendants
DOYNE and DOYNE, INC.
243. SCHALL and WOHLFEIL CULPABLY AND UNREASONABLY permitted DOYNE to commit the fraud, abuse of
process, extortion, and terror against STUART.
244. DOYNE SUPERVISING DEFENDANTS knew or should have known:
A. DOYNES history of fraud, abuse, and illegal conduct described herein;
B. The pattern of illegal activities of the CONSPIRACIES and CRIMINAL ENTERPRISES herein;
C. DDIJO and DOYNE COMPLAINTS; and
D. The FEDERAL ENGAGEMENT of PLAINTIFFS and others regarding EFENDANTS, the DDIJO, DDIA, DDIPS, SAC,
ENTERPRISE and CRIMINAL CONSPIRACY operators and affiliates.
245. After learning of DOYNES history of illegal conduct, fraud, and abuse, DOYNE SUPERVISING DEFENDANTS had
a duty to investigate, oversee, re-train, discipline, and/or terminate those over which they had the power to influence or
control including DOYNE and DOYNE, INC. Supervising Defendants failed to implement remedial measures such as
reassignment, removal or other disciplinary actions to prevent further constitutional injuries to PLAINTIFFS and those
similarly situated.
246. Having this knowledge, DOYNE SUPERVISING DEFENDANTS neglected or refused to prevent or aid in preventing
the same.
247. SUPERVISING DEFENDANTS UNREASONABLY and CULPABLY failed to implement appropriate training,
supervision, hiring, discipline, programs to assure persons over whom they had the ability to influence or control would not
commit the acts complained of, including the acts alleged in the DDIJO and DOYNE COMPLAINTS and the STUART
ASSAULT.
248. In performing their supervising authorities, DOYNE SUPERVISING DEFENDANTS implemented customs, policies,
or practices that created unreasonable risks that subordinates would perpetrate the constitutional injuries complained of by
PLAINTIFF, including:
A. Directing, rewarding, encouraging, or acting with deliberate indifference to the actions of subordinates which led to
PLAINTIFFs constitutional injuries; and
B. Failing to change customs and policies, or employ corrective practices for subordinates causing PLAINTIFFS
41
constitutional HARM.
249. Each DOYNE SUPERVISING DEFENDANT played a role in forming and/or implementing the customs, policies,
and/or practices causing PLAINTIFFs HARM.
250. Each DOYNE SUPERVISING DEFENDANT had prior knowledge of acts of their subordinates, supervises and/or
trainees which cause constitutional injury similar to that complained of by PLAINTIFF.
251. Despite the knowledge of past/prior acts causing or likely to cause constitutional injury, DOYNE SUPERVISING
DEFENDANTS took no and/or inadequate corrective action, and in fact encouraged the acts that caused or were likely to
cause constitutional injury.
252. As an actual and proximate result, PLAINTIFF has been HARMED.
Count 19
Fraud, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing Deprivation of Rights Under Color of
Law 42 U.S.C. 1983
U.S. Const. 4th, 5th, and 14th Amend.
AGAINST DOYNE INC, WOELFEIL, SCHALL, BLANCHET
253. At all times herein mentioned, Defendants DOYNE INC., BLANCHET, WOHLFEIL, and SCHALL were agents,
officers, directors, employee/employers, of one another.
254. DOYNE, INC., acting under color of state law, made representations with the intent to induce PLAINTIFF into
engaging the services of DOYNE, INC. and entering into the written and oral CONTRACTS with DOYNE, INC.
255. DOYNE INC.S behavior was a CULPABLE, extreme and outrageous, malicious, oppressive, and fraudulent breach of
one or more PROFESSIONAL DUTIES and deprivation of STUARTS FFR, CRF, and EQUAL PROTECTION CLASS
rights.
256. Each DEFENDANT facilitated, encouraged, was deliberately indifferent to, was aware of and acquiesced to DOYNE
INCS behaviors, actions, representations, inducement, and PLAINTIFFS likely and actual reasonable reliance thereon.
257. As an actual and proximate result, PLAINTIFF has been HARMED.
Count 20
Unjust Enrichment
Against DOYNE, DOYNE INC. ABC&K, BLANCHET
258. In reliance on DEFENDANTS acts and omissions, PLAINTIFF has been wrongfully induced to retain DEFENDANTS,
and as a result has paid in excess of $350,000 to Defendants.
259. As an actual and proximate result of Defendant DEFENDANTS misfeasance and malfeasance described herein,
42
DEFENDANTS have been unjustly enriched in an amount paid by PLAINTIFF and Ms. Stuart, the exact amount to be
proven at trial
Count 21
False designation of origin, false description Lanham Act 15 U.S.C. 1125
Against All Defendants
260. DEFENDANTS, in connection with their businesses, professions, PROFESSIONAL DUTIES, CONSPIRACIES and
ENTERPRISE OPERATIONS, use in their advertisements, promotions, sale and offer for sale of their legal services words,
terms, names, symbols, and devices, and combinations thereof, (COMMERCIAL SPEECH) which are false and misleading.
261. In their COMMERCIAL SPEECH DEFENANTS represent that their services abide by ordinary and professional
standards of care, are legal, efficient, safe, and effective exercise of governmental powers and public licenses provided under
law as follows per defendant:
Entity/ies
A. All Defendants
Misrepresentation/Reference
See below; public and private services are legal, safe,
efficient, obedient to PROFESSIONAL DUTIES and
standards of care.
......................................................................................................................................................................................................................................................
B. DOYNE, INC
See below; child custody evaluations/mediations are safe,

therapeutic, caring and effective, cause no harm to parents
or children ; prices for services are reasonable; services
provider is authorized according to court processes and law;
service provider is and will observe legal, professional, and
moral restraint in his duties; will not abuse power or process;
In collusion with Defendant ACFEI, that DOYNES
certifications, Diplomat/e status, resume are accurate, true,
and authentic.
......................................................................................................................................................................................................................................................
C. ACFEI
See below, Ex. 43; Independently and in collusion with

DOYNE, Defendant offers Certified Diplomat and
Fellow titles and certifications as authentic reflections of
common understanding of such titles; the organizations is a
College institution of higher learning, has a campus on
Sunshine Street in Springfield MO;
......................................................................................................................................................................................................................................................
43
D. ALLIANCE
See below; Ex. 1, 41
......................................................................................................................................................................................................................................................
E. CJC/AOC/SCSDC, ALLIANCE
ALLIANCE and Family Court Facilitator Officers are legal

advisors authorized to provide legal representation and
advice; DV Forms are legal; abuse is a crime; Judges can
legally issue DVILS Orders; the FFR and CFR are not
available to California Citizens; there is no right to jury trial
in liberty or property deprivation hearings; the DVILS are
valid and enforceable.; all Defendants exercise their
authority according to constitutional authority
PROFESSIONAL DUTIES and law. Ex. 42.
......................................................................................................................................................................................................................................................
The CJP protects the rights of litigants from judicial abuse,
transgression, and civil rights violations of the FFR and
CFR; CJP has authority to and does enforce the CRCCS on
behalf of litigants; the CJP is the first stop in proceeding in
federal court for enforcement of civil rights; DDIL need not
proceed to federal court; The CJP is a neutral finder of fact;
The CJP is loyal to PROFESSIONAL DUTIES to serve the
interests of litigants equally as to government lawyers
F. CJP
......................................................................................................................................................................................................................................................
G. FRITZ
Ex. 46
......................................................................................................................................................................................................................................................
H. BIERER
Ex. 47
......................................................................................................................................................................................................................................................
I. BLANCHET
Ex. 48
262. With Respect to Defendant ALLIANCE, it further advertises and promotes:

A. The ALLIANCE legally operates the lead technical assistance center for development of Family Justice Centers across
the United States. The Alliance claims it has been expanding and broadening its services since its inception in response to
the increasing demand for technical assistance (consulting, training, planning, and support services) from existing and
44
developing Family Justice Centers in the United States and around the world. The Alliance serves as the clearinghouse,
research center, and national membership organization for all Family Justice Centers and similar multi-agency,
multi-disciplinary service delivery models serving victims of domestic violence and other forms of abuse and oppression.
B. The ALLIANCE claims it legally serves as the clearinghouse, research center, and national membership organization for
all Family Justice Centers and similar multi-agency, multi-disciplinary service delivery models serving victims of domestic
violence and other forms of abuse and oppression; serves as the comprehensive technical assistance and training provider
for the United States Department of Justice for federally funded Centers; works with Centers outside the federal initiative
in the U.S. and abroad.
C. The ALLIANCE claims there are currently more than 80 operational Centers in the United States with ten international
Centers (Canada, Mexico, England, Jordan, and Sweden). There are over 140 Centers currently developing in the United
States, Europe, the Middle East, Africa, and Central America. The Alliance is currently partnered with the Mexican
government, Management Systems International, and USAID to help open more than twenty Womens Justice Centers in
Mexico.
D. The ALLIANCE hosts an annual international conference, provides shared learning opportunities such as staff exchange
programs, internships, web-based education programs, and training in many areas related to family violence, elder abuse,
child abuse, sexual assault, and human trafficking. At present, the Alliance has over 11,000 members and over 10,000
attendees per year in its online training courses. Over 60,000 unique users per year access the Alliances online resources.
E. The ALLIANCE is the coordinator of the current California Family Justice Initiative, funded by the Blue Shield of
California Foundation, which has helped start ten new Family Justice Centers in California in the last three years. The $2
million Blue Shield of California Foundation California Family Justice Initiative is funding development of a statewide
network of Centers made up of core criminal justice system professionals and a host of community-based non-profit and
government agencies. Today, the Alliance is assisting with the start up of fifteen additional Centers in California.
F. The ALLIANCE staffs the FJC Legal Network, the Client Services Program, Camp HOPE, and the Teen Relationship
Violence Program in the San Diego Family Justice Center. The FJC Legal Network, founded in 2009, is housed at the San
Diego Family Justice Center and provides civil legal assistance to domestic violence victims. The Client Services Program
manages client screenings, intakes, and delivery of services to victims and their children. Camp HOPE is a specialized
camping and mentoring initiative for children exposed to domestic violence, physically and sexually abused children, and
at-risk youth.
G. The ALLIANCE advertises and represents that it is creating a future where: ALL the needs of victims are met; children
are protected; Batterers are held accountable; Violence fades; Economic justice increases; Families heal and thrive; Hope is
realized; and we ALL work together. The Alliance seeks to create a network of national and international Family Justice
Centers and similar co-located service models with close working relationships, shared training and technical assistance,
collaborative learning processes, coordinated funding assistance, and transformational leadership. Exs. 1, 41.
263. With respect to Defendant CJP, it advertises and promotes:
A. The commissions jurisdiction includes oversight, supervision, training, supervision, and discipline over judges of
Californias superior courts and the justices of the Court of Appeal and Supreme Court. The commission also has jurisdiction
over former judges for conduct prior to retirement or resignation. Additionally, the commission shares authority with the
superior courts for the oversight of court commissioners and referees. The Director-Chief Counsel of the commission is
designated as the Supreme Courts investigator for complaints involving the judges of the State Bar Court. The commission
does not have authority over federal judges, judges pro tem or private judges. In addition to its disciplinary function, the
commission is responsible for handling judges applications for disability retirement.
B. The commissions authority is limited to investigating allegations of judicial misconduct and, if warranted, imposing
discipline. Judicial misconduct usually involves conduct in conflict with the standards set forth in the Code of Judicial Ethics.
After investigation, and in some cases a public hearing, the commission may impose sanctions ranging from confidential
discipline to removal from office.
45
264. With respect to Defendant ACEFI:

A. ACEFI advertises and promotes itself as the largest forensic science membership association, forensics education,
credentials, courses, training and membership for forensics examiners. ACEFI sells memberships, certifications,
accreditations, training materials and products, career services, and professional referral networking. It publishes and
circulates a subscription magazine entitled The Forensic Examiner to members and other Subscribers.
B. ACEFI sells certifications in areas such as Certified Forensic Examiner, Certified Forensic Accountant, Cr.FA,
Certified Forensic Nurse, CFN, Certified Criminal Investigator, CCI, Certified Forensic Physician CFP,
Certified Medical Investigator CMI, Certified Master Forensic Social Worker CMF SW, Certified Forensic
Consultant CFC, Certified Survival Mindset CSM, and Certified Instructor CI.
C. ACEFI operates no campus. It sells its certifications nationwide online at a website located at www.acefi.com and at
www.facebook.com/acefi. At its online website it offers the advanced certifications of Diplomat and Fellow to
consumers who want to Become a Diplomat Now! Ex. ___. From its website and its Sunshine Street offices in Springfield,
MO, it offers the following Diplomate Board Certifications: and Accreditations;
1) Diplomate of the American Board of Forensic Accounting-DABFA; Accredited bachelors degree or higher; current and
active CPA or international equivalent;
2) Diplomate of the American Board of Forensic Counselors-DABFC; Minimum of an accredited masters degree; current
and valid license in counseling or mental health field;
3) Diplomate of the American Board of Forensic Dentistry-DABFD, DDS or DMD from an ADA-accredited school or
equivalent non-US academic institution; current, valid license to practice dentistry;
4) Diplomate of the American Board of Forensic Examiners-DABFE; Accredited bachelors degree or higher;
5) Diplomate of the American Board of Forensic Engineering and Technology-DABFET; Accredited bachelors degree or
higher in an engineering or technological discipline;
6) Diplomate of the American Board of Forensic Medicine-DABFM; MD/DO degree in medicine from an accredited medical
school; current, valid medical license;
7) Diplomate of the American Board of Forensic Nursing-DABFN; Minimum of a BSN from an accredited nursing school;
possession of a current, valid RN license;
8) Diplomate of the American Board of Forensic Social Workers-DABFSW; Minimum of an MSW from an accredited
university or college; current, valid social work license (if applicable);
9) Diplomate of the American Board of Recorded Evidence-DABRE;
D. The single requirement for Fellow advanced certifications are available to anyone who has been a Diplomate for three
years, and pay $250.
E. To anyone who can answer No to the questions Have you been convicted of a felony? and Are you under
investigation for fraud?, and pay $250, ACEFI also offers the following Credentials:
10) Certified Master Forensic Social Worker, CMFSW
11) Certified Forensic Accountant, Cr.FA
12) Certified Forensic Consultant, CFC
46
13) Certified in Survival Mindset, CSM

14) Certified Forensic Nurse, CFN
15) Certified Forensic Physician, CFP
16) Certified Medical Investigator, CMI
17) Certified Criminal Investigator, CCI
F. ACEFI describes the Fellow certification as the highest honor ACFEI can bestow upon a member. This designation is
reserved for members with outstanding achievements and excellence as well as participating actively in ACFEI programs.
This Honor is achieved by filling out an online form requiring a name, address and telephone number, and answering the
questions Have you ever been convicted of a felony?* and Have you ever been disciplined, or are you currently under
investigation, by any legal or licensing board? * The Fellow and Diplomat advanced certifications are available online
for $250.
G. ACEFI offers online courses for Behavioral Science, Forensics, Psychotherapy, Integrative Medicine, and
Missouri Sheriffs.
H. The Certifications, Boards, College, school, and classes offered by ACFEI described in paragraphs 1)-24) do
not exist.
265. The claims of all Defendants described in this count and elsewhere are false and misleading.
266. With respect to each Defendant:
A. In their activates described herein, DEFENDANTS operate CRIMINAL ENTERPRISES which defraud, abuse, oppress,
and deprive PLAINTIFFS and the general public of their property and liberty.
B. In their COMMERCIAL SPEECH promotion for such ENTERPRISES, including websites, literature, public appearances,
statements and representations, DEFENDANTS misrepresent theirs and others legal and professional services as legal, fair,
honest, and beneficial, when in fact they are fraudulent, harmful, inefficient, oppressive, and illegal.
C. Further, in their advertising and promotion DEFENDANTS fail to warn consumers of the illegality of their services, the
constitutional deprivations they cause and form the basis of liability for, and the many disastrous pitfalls which occur
regularly from use of such professional services. As such, DEFENDANTS mislead as to the nature, characteristics, qualities,
of their and their ENTERPRISE affiliates services, including the nature of the ENTERPRISE and purposes of the SAD,
D. Defendants mislead consumers by misdirection from superior, legitimate, legal services by one ore more SAD, and by
advising thats how it is in family court, and by failing to advise of the full options consumers have toward legal, healthy,
and safe alternatives to avoid the abundant harm likely to befall those who engage in such activities.
E. DDICE DEFENDANTS operate SAD and black hat operations under the guise of white hat legality and professional
responsibility, thereby deceiving consumers of legal services into engaging such services with the expectations that such is as
safe, lawful, and healthy as standard legal and psychological services. They are not.
267. PLAINTIFFS have been damaged and reasonably believe they are likely to be damaged again by such acts.
VI. RICO ALLEGATIONS:

47
RICO DEFENDANTS
268. In addition to the allegations regarding each Defendant above, certain defendants are each engaged in activities which
constitute a RICO Enterprise, and that each such defendant is a person, as that term is defined pursuant to Section 1961(3)
of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). Such Defendants are:
A. SAN DIEGO COUNTY BAR ASSOCIATION, a California Corporation
B. SAN DIEGO COUNTY SHERIFFS DEPARTMENT, a municipal entity
C. WILLIAM D. GORE, an individual
D. COUNTY OF SAN DIEGO, a municipal entity
E. SUPERIOR COURT OF SAN DIEGO COUNTY, a municipal entity
F. ROBERT J. TRENTACOSTSA, an individual
G. MICHAEL RODDY, an individual
H. JUDICIAL COUNCIL, a municipal entity
I. ADMINISTRATIVE OFFICE OF THE COURTS, a municipal entity
J. TANI G. CANTIL-SAKAUYE, an individual
K. COMMISSION JUDICIAL PERFORMANCE, a municipal entity
L. LAWRENCE J. SIMI, an individual
M. BRAD BATSON, an individual
N. NATIONAL FAMILY JUSTICE CENTER ALLIANCE, a California Corporation
O. LISA SCHALL, an individual
P. LORNA ALKSNE, an individual
Q. OFF DUTY OFFICERS, INC., a business entity of unknown form
R. CHRISTINE GOLDSMITH, an individual
S. JEANNIE LOWE, an individual
T. WILLIAM MCADAM, an individual
U. EDLENE MCKENZIE, an individual
V. JOEL WOHLFEIL, an individual
W. CAROLE BALDWIN, an individual
X. LAURY BALDWIN, an individual
Y. BALDWIN AND BALDIWN, a California professional corporation
48
Z. LARRY CORRIGAN, an individual

AA. WILLIAM HARGRAEVES, an individual
BB. HARGRAEVES & TAYLOR, PC, a California Professional Corporation
CC. TERRY CHUCAS, an individual
DD. MERIDITH LEVIN, an individual
EE. ALLEN SLATTERY, INC., a California Corporation, a Corporation
FF. JANIS STOCKS, an individual
GG. STOCKS & COLBURN, a California professional corporation
HH. DR. STEPHEN DOYNE, an individual
II. DR. STEPHEN DOYNE, INC., a professional corporation
JJ. SUSAN GRIFFIN, an individual
KK. DR. LORI LOVE, an individual
LL. LOVE AND ALVAREZ PSYCHOLOGY, INC., a California corporation
MM. ROBERT A. SIMON, PH.D, an individual
NN. AMERICAN COLLEGE OF FORENSIC EXAMINERS INSTITUTE, a business entity of unknown form
OO. ROBERT OBLOCK, an individual
PP. LORI CLARK VIVIANO, an individual
QQ. LAW OFFICES OF LORI CLARK VIVIANO, a business entity of unknown form
RR. SHARON BLANCHET, an individual
SS. ASHWORTH, BLANCHET, KRISTENSEN, & KALEMENKARIAN, a California Professional Corporation
TT. MARILYN BIERER, an individual
UU. BIERER AND ASSOCIATES, a California Professional Corporation
VV. JEFFREY FRITZ, an individual
WW. BASIE AND FRITZ, a professional corporation
269. By virtue of their affiliations, conspiracy, associations, and collaboration as alleged herein, RICO DEFENDANTS
function collectively as alter ego vehicles of one another facilitate and further the commercial purposes of the
ENTERPRISES alleged herein.
270. Specifically, in addition to the conspiracy allegations detailed above, each defendant is liable as a principal pursuant to
49
18 U.S.C. 2(a)-(b), and that each and every RICO person that is a RICO defendant is liable as a co-conspirator pursuant to
18 U.S.C. 371.
271. DEFENDANTS, and each of them, while affiliated with one or more ENTERPRISES, have operated, affiliated with,
and participated directly and indirectly in the conduct of ENTERPRISE affairs through a pattern of racketeering activity, in
violation of 18 U.S.C. 1964 (b), (c), and (d) as follows:
RICO ENTERPRISES
272. Each of the following configurations, for purposes of plaintiff RICO 1962(c) claims for relief, constitute an enterprise
engaged in, or the activities of which affect, interstate or international commerce as those term is defined pursuant to 3Title
18 United States Code 1961(4) of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) and Odom v.
Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) (collectively RICO ENTERPRISES)
RICO Enterprise 1
The California Domestic Dispute Industry Criminal Enterprise (DDICE)
273. The California Domestic Dispute Industry Criminal Enterprise (DDICE) consists of individual private and public
professionals, professional corporations, professional membership organizations, and governmental entities engaged in that
portion of family law practice in which two or more parties have competing interests, or compete with the government for
such interests, and is described herein as Domestic Dispute Law. Domestic Dispute Law includes marital dissolution,
parentage, child custody, child support, domestic violence, and related areas.
274. All RICO DEFENDANTS including DDICE DOES 1-500 and the entities with which they are associated, including
every other ENTERRISE, civil and criminal CONSPIRACY constitute the DDICE. These entities, acting concert with one
another, are organized and maintained by and through a consensual hierarchy of agents, partners, managers, directors,
officers, supervisors, agents, deputies, and/or representatives that formulate and implement policies, practices, relationships,
rules, and procedures related to Domestic Dispute Law.
RICO Enterprise 2
San Diego Family Law Community Domestic Dispute Industry Criminal Enterprise (SD-DDICE)
275. In San Diego, the relationships among DDICE operators and affiliates are created and supported through what has been
denominated by members of the DDICE as the San Diego family law community Ex. 2, 26. The SD-DDICE is comprised
of individual family law attorneys and law firms, professional service providers, domestic dispute judges, the Family Law
Subsection of the San Diego County Bar Association and SDCBA staff, officers, and employees, specifically including:
SDCBA, SDSD, GORE, SCSDC, TRENTACOSTA, RODDY, CJC, CANTIL-SAKAUYE, ALLIANCE,
SCHALL, ALKSNE, WOHLFEIL, C. GOLDSMITH, LOWE, McADAM, McKENZIE, C. BALDWIN,
L. BALDWIN, CORRIGAN, HARGRAEVES, CHUCAS, LEVIN, STOCKS, ALLEN, SLATTERY,
INC., STOCKS & COLBURN, ACFEI, OBLOCK, DOYNE, DOYNE, INC., GRIFFIN, LOVE, LOVE,
INC., SIMON, VIVIANO, BLANCHET, ABC&K, BIERER, BIERER & ASSOCIATES, FRITZ,
BASIE & FRITZ, DDICE DOES 21-30, and the entities with which they are associated, including
DDICE DOES 501-1000.
276. SD-DDICE utilize and share private and SDCBA, SCSDC, SAC, DDIPS and others communications systems, offices,
50
fixtures and equipment, professional and personal networks, campaign and lobbying vehicles and personnel, and political
organizations and networks. The DDICE and SD-DDICE also conspires to promote DEFENDANTS CIVIL
CONSPIRACIES, HARRASSMENT AND ABUSE, agenda detailed above for the benefit of the enterprise and detriment of
the DDIL.
277. The DDICE and SD-DDICE have been in existence for as long as the FLC has been organized-dating back far longer
than ten years. The DDICE and SD-DDICE have gained influence in recent years since the passage of the Domestic Dispute
Intervention Legislative Scheme (DVILS) in 1993-1997. Since passage of the DVILS, DDICE members have been
empowered and increasingly skilled at utilizing one or more of the schemes and artifices to defraud (SAD) described below
to further the purposes of the ENTERPRISES and commit racketeering activity.
278. These entities, acting concert with one another, are organized and maintained by and through a consensual hierarchy of
agents, partners, managers, directors, officers, supervisors, agents, deputies, and/or representatives that formulate and
implement policies relative to business development coordination, education, social networking, informational services to the
public about various areas and practices of lawyers practicing law, including, but not restricted to, aspects of family law,
child custody, and domestic relations in the San Diego area.
279. The SD-DDICE acting in concert with San Diego DDIJO, SCSDC, SDCBA, DDISO, and the SAC engage in a course
of conduct and a pattern of practice to illegally compete in the DDIL marketplace by illegal antitrust affiliations, barriers to
entry, fraudulent certifications, and predatory tactics such as the STUART ASSAULT and ongoing HARRASSMENT
AND ABUSE.
280. Through mutual anticompetitive pacts, fraudulent licensing, certification, specialization, excluding or deterring fair
competition from the market, the DDICE compete illegally in the DDIL marketplace, sharing access only those attorneys and
law firms that share and promote the interests of the ENTERPRISES, and committing HARRASSMENT AND ABUSE
against entities such as PLAINTIFFS which they view as competition in the DDIL marketplace.
RICO Enterprise 3
Domestic Dispute Industry Intervention Advocate Criminal Enterprise (DDI-IACE)
281. The DDI-IACE consists of Defendants AOC, CJC, CANTIL-SAKAUYE, ALLIANCE, TRENTACOSTA, RODDY,
ALKSNE, SCSDC, SDSD, and DDICE DOES 1001-1500. DDI-IACE constitutes a RICO criminal enterprise, organized and
maintained by and through a consensual hierarchy of, managers, directors, officers, supervisors, agents, deputies, and/or
representatives that formulate and implement policies relative to family law, child custody, and domestic relations.
282. The DDI-IACE ENTERPRISE, acting in concert with AOC, CJC, DDISW, DDIJO, and DDISO Defendants engage in a
course of conduct designed and intended to deprive and conspire to commit one or more SAD, deprive DDIL of FFR and
CFR, and commit HARASSEMENT AND ABUSE as described herein through the illegal practice of law, abuse of process,
illegal advice, guidance, form selection, individual litigant support, advocacy, and services through the ALLIANCE and
county court locations across the state. The DDI-IACEs activities focus on topics such as divorce, restraining orders,
constitutional law, child custody, parents and childrens rights, guardianship, adoption, domestic violence, abuse and
harassment.
283. The DDI-IACE commercial purpose is to generate revenue and income within this District by expanding the
ENTERPRISE and the criminal activities of the DDIJO, DDISW, DDISO, and others associated with it, by committing fraud
on the United States, and state and local charities. Funding for statewide DDI-IACE entities is obtained from billions of
dollars in Violence Against Women Act grants and awards, and private foundations. Ex. I.
Rico Enterprise 4
51
The Domestic Dispute Industry Forensic Investigator Criminal Enterprise (DDI-FICE)

284. The DDI-FICE consists of behavioral science professional custody evaluators, mediators, and the organizations which
certify, oversee, discipline, appoint, refer, conspire, associate, or affiliate with them, and includes Defendants ACFEI,
DOYNE, DOYNE, INC., LOVE, LOVE INC. BLANCHET, BIERER, FRITZ, SCSDC and DDICE DOES 1501-2000.
These RICO DEFENDANTS constitute a criminal enterprise, organized and maintained by and through a consensual
hierarchy of, managers, directors, officers, supervisors, agents, deputies, and/or representatives that formulate and implement
policies relative to providing the rendition of forensic psychology services to the public, including, but not restricted to,
DDIL, their lawyers, judges, and others in the field of family law, child custody, and domestic relations.
285. The DDI-IACE ENTERPRISE Defendants engage in a course of conduct designed and intended to conspire to commit
one or more SAD, deprive of FFR and CFR, and commit HARASSEMENT AND ABUSE as described herein through the
illegal practice of law, abuse of process, illegal advice, guidance, form selection, individual litigant support, advocacy, and
services through the ALLIANCE and county court facilitator offices locations across the state. The DDI-IACEs activities
focus on topics such as parental/domestic dispute mediation, civil rights, child custody, domestic violence, and harassment.
286. The DDI-IACE commercial purpose is to generate revenue and income within this District committing one or more
SAD, false COMMERCIAL SPEECH, including HARASSMENT AND ABUSE.
Rico Enterprise 5
The DDIA/DDIPS Ad Hoc Criminal Enterprise (AHCE)
287. The AHCE is a well-established enterprise formation which is formed when two or more DDIL enter the DDIL
marketplace and hire one or more DDIA. The enterprise affiliates-ordinarily one DDIA attorney for a Petitioner, and one for
Respondent-engage with their clients, make fraudulent COMMERCIAL SPEECH misrepresentations to them regarding their
FFR, the family court laws and processes, and begin exploiting them by use of one or more SAD. Depending on how
malicious the DDIA conduct their fraud, DDIL may be induced into engaging in Poser Advocacy and one or more SAD,
either as initiator or forced responder, thereby generating revenue for both DDIA. The process by which the AHCE enterprise
is ordinarily formed is described in detail in a publication entitled A Promise To Ourselves: A Promise to Ourselves: A
Journey Through Fatherhood and Divorce, Baldwin, A., ISBN-10: 0312586019. PLAINTIFFS have not received permission
to reproduce this publication and therefore reference it as Exhibit 32 as if set forth herein in full.
288. In the present matter, the STUART AHCE consists of Defendants BLANCHET, BIERER, FRITZ, VIVIANO, DOYNE
INC., and DDICE DOES 2001-2010 (collectively STUART AHCE). By execution of various frauds and SAD, the STUART
AHCE introduced additional DEFENDANTS DOYNE, INC. WOHLFEIL, and eventually SCHALL, CJP, BATSON,
SDCBA, STUART ASSAULT COORDINATORS to commit one or more CIVIL and CRIMINAL CONSPIRACIES.
289. The STUART AHCE is organized and maintained by and through a consensual hierarchy of, managers, directors,
officers, supervisors, agents, deputies, and/or representatives that formulate and implement policies relative to the dispensing
and providing the rendition of judicial services to the public, including, but not restricted to, lawyers practicing before,
networking with, funding, and collaborating with this enterprise, including, but not restricted to, aspects of family law, child
custody, and domestic relations. The STUART AHCE enterprise, acting in concert with one and others unknown to
PLAINTIFFS, engaged in a course of conduct and a pattern of practice formulated, designed, intended, implemented, and
executed to as part of one or more SAD.
GENERAL ENTERPRISE ALLEGATIONS

With respect to each ENTERPRISE:
52
Commercial Purpose
290. The constituent members comprising each ENTERPRISE are engaged in a concerted campaign to extort, defraud, trick,
deceive, corruptly persuade, victims, including primarily family court litigants and their children and extended families
(Domestic Dispute Industry Litigants DDIL) to exercise control over, and extract maximum value from, the target
community estate (TCE). The TCE includes all assets of the DDIL, the labor value of the DDIL going forward, and the
custody award value of any children of the DDIL.
291. Further, in unfairly protecting their commercial purposes, each ENTERPRISE harasses, threatens, assaults, abuses,
denigrates, impugn, and/or otherwise harm, or threaten and attempt to harm, competitors, critics, reformers, and others.
292. The ENTERPRISES operate as a cabal, a semi private, sometimes secret, informal affiliation of entities with public
presence and identity that is wholly or partially inaccurate and misleading as to the true goals, affiliations, and processes of
the cabal. The ENTERPRISES achieve their respective purposes by fraudulent collusion among DDICE operators and
affiliates, who in their COMMERCIAL SPEECH represent to their DDIL clients that the relationships among the DDICE
members are in compliance with legal and ethical PROFESSIONAL DUTIES when they in fact are not. See False Flag and
Pose Advocacy SAD below. (COMMERCIAL PURPOSES).
293. The ENTERPRISES also compete unfairly through their COMMERCIAL SPEECH by misrepresenting the legitimacy
of the ENTERPRISES, by representing to DDIL that their illegal behavior is how it is in a take it or leave it breach of
one or more PROFESSIONAL DUTIES.
294. The ENTERPRISES also compete unfairly within the DDI marketplace by creating the impression
ENTERPRISE entities are incapable of representing the interests of family law clients. In the present
ENTERPRISES operated as alleged to suppress and retaliate for PLAINTIFFS FFRRESA and PUBLIC
ACTIVITIES by HARRASSMENT AND ABUSE to restrict the family law marketplace access, knowledge, and
to only ENTERPRISE operators and affiliates.
that noncase, the

BENEFIT
awareness
295. Funded by fraudulent exploitation of the DDIL TCE, ENTERPRISE operators and affiliates engage in bribery,
exchanging value, emoluments, patronage, nepotism, and/or kickback schemes within their networks to assure system-wide
cash flow and continued viability and vitality of the ENTERPRISES. ENTERPRISES refuse such cooperation with
non-affiliates, thereby baring potential competitors. These bars include fraudulently manipulated referrals, representations,
certifications, nepotism, illegal antitrust tactics, and manufactured pitfalls to support the pervasive who you know cabal in
defiance of the rule of law.
296. When necessary, illegal marketplace protections are perpetrated by illegal criminal justice system sanctions by DDIJO
and DDISO, direct attacks such as the STUART ASSAULT DDISO, and HARASSMENT AND ABUSE. This predatory
competitive behavior targets any entity, association, or organization that supports and advocates for DDIL that appears as a
potential or probable threat to these DDICE purposes, including PLAINTIFFS (ENTERPRISE UNFAIR COMPETITION).
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).
298. The DDL view the DDI either as a necessary evil to be treated as a toll, or in some cases a nefarious tool of oppression
to illegally obtain wealth, power, and control at the expense of a former loved one. The DDI can deal with either. However,
for purposes of the civil and criminal enterprises alleged herein, the later represent an exploitation opportunity for DDICE
operatives, and as such special attention is paid to them.
53
299. ENTERPRISE affiliates who serve or cultivate the illegal purposes of the enterprise-black hat operatives-view 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.
300. However, to maintain long-term vitality, DDICE operatives must govern themselves to avoid exposure of their illegal
SAD, or overfising-extracting 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 counsel-hence 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 in-house 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 late-if 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 easy-the 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.
Interstate and International Commerce of the ENTERPRISES

306. The activities of the DDICE affect interstate and international commerce as follows:
A. The DVILS are authorized and enforceable under federal law and entitled to full faith and credit under the multiple state
laws (18 U.S.C. 2261(a)(1), 2265)(Ex.33);
B. Child Support awards may be enforced in foreign countries through bilaterail international treaty including by revoking
passports of U.S. citizens (Ex. 33);
54
C. State child support awards are enforceable in all U.S. Military Courts (Ex. 33);
D. The affairs of families is a worldwide industry generating tens of billions of dollars acquired by the DDICE
ENTERPRISES each year.
Longevity
307. In conducting the affairs of the ENTERPRISES, and in committing the acts, omissions, misrepresentations, and
breaches referred to herein beginning as far back as 1997 and continuing up through initiation of these proceedings, RICO
DEFENDANTS engaged in a pattern of racketeering activity in contravention of Title 18 United States Code 1962(c)
inasmuch as the defendant was employed by, or associated with, one or more ENTERPRISE engaged in activities that affect
federal interstate and/or foreign commerce, and conducted such multiple criminal enterprise affairs by and through a pattern
of racketeering activity.
ENTERPRISE Schemes and Artifice to Defraud Scheme and Artifice to Defraud 1 Illegal Invocation of DVILS
ORDERS: Abuse of Process:
Abuse of Process: The Pit
308. The central tool of the DDICE is the widespread illegal exercise of the enormous equitable powers of state DDI courts.
DDI courts exercise such powers putatively under a set of laws enacted to extend state police powers to intervene in intense
domestic interpersonal conflict to address domestic violence. These laws are ensconced in Family Code 6211 et seq,
including 6200-6219, 6389, 3031, 14325, 6301, 6228, 6300-6306, 6404, 6380, 6384, 3044, 4320, 4007.5, 3190, 6203,
6209, 6205, 2040, 6253, 6306 et seq.; Civil Code 3295 et seq., and Penal Code 13700 et seq., 136.2, 273.6, 273.75,
166, 836, 11161,679.05, 273.83, 868.8, 1203.3, 273.75, 1203.097, 646.91, et seq. These laws shall hereafter be collectively
referred to as the DOMESTIC VIOLENCE INTERVENTION LEGISTLATIVE SCHEME or DVILS. (Ex. 35)
DVILS Orders
309. Collectively, the DVILS create a set of practices and procedures whereby a party asserting that another within the
DOMESTIC RELATIONS CLASS may quickly obtain an injunction imposing severe and onerous deprivations, restrictions,
penalties, pains, and expense on another suspected of undesirable activity. A party seeking a protective order using a state
form DV 110 is requested only to describe the abuse. (Ex. 34) Though committing Abuse can form the basis of highly
invasive property and liberty deprivations, it is nowhere defined in the form, and under California law, is not a crime.
310. Upon overcoming the procedural safeguard of showing of good cause for the existence of abuse, a DDI court may
grant an order imposing the following Personal Conduct, Move Out, Stay Away, Property Control and Child
Custody and Visitation:
Personal Conduct: The person in must not do the following things to the protected people listed...
a. Harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property,
disturb the peace, keep under surveillance, or block movements;
Contact (either directly or indirectly), or telephone, or send messages or mail or e-mail or other electronic means;
Take any action either directly or through others to obtain the address or locations of the person ...
Peaceful written contact through a lawyer or process server as needed to serve Form DV-120 (Response to Request for
55
Domestic Violence Restraining Order) or other legal papers is allowed and does not violate this order ....
Stay Away Order:
The person in must stay at yards away from:
The childrens school or child care
a. The person listed in d.
b. The people listed in e. Other (specify):
c. Home Vehicle of person in Job
Move-Out Order
The person in must take only personal clothing and belongings needed until the hearing and move out immediately from
(address).
Child Custody and Visitation Order
a. You and the other parent must make an appointment for court mediation (address and phone number):
b. Follow the orders listed in Form DV-140, which is attached.
No Guns or Other Firearms or Ammunition
The person ... cannot own, possess, have, buy or try to buy, receive or try to receive, or in any other way get guns, firearms,
or ammunition.
Turn in or sell guns or firearms...
Must sell to a licensed gun dealer or turn in to police any guns or firearms that he or she has or controls. This must be done
within 24 hours of being served with this order.
Must bring a receipt to the court within 48 hours of being served with this order, to prove that guns and firearms have been
turned in or sold.
Property Control
Until the hearing, only the person in can use, control, and possess the following property and things:
Cal. Pen. Code 136.2, 1203.097(a), 273.5(i), 646.9(k); forms DV-110, CR-160 (collectively DVILS ORDERS) (Ex.
35).
311. The DVILS, DVIL ORDERS, and jeopardy of the imposed disability they represent will be referred to as THE PIT.
312. Together, the DVILS, DVILS ORDERS constitute the central foundation of conspiracy to violate civil rights actionable
under at least 18 U.S.C. 241, 242, 42 U.S.C. PLAINTIFFS shall borrow the term used by the DDICE itself to refer to the
device hereafter as THE PIT. By threatening, offering, or processing its (illegal) invocation, DEFENDANTS defraud the
DDIL, perpetrating one or more frauds and swindles, abuse of process, or deprivations of FFR and CFR described herein.
313. In December, 2007 STUART confronted DEFENDANT ABC&K about the legality of the DVILS ORDERS which he
56
had been illegally and without notice subjected to. AC&Ks BLANCHET explained the scheme:
Of course theyre unconstitutional-they re illegal as Hell, but they know its expensive to fight it, so they strike first, throw
you in The Pit and make you pay or work to climb your way out.
BLANCHET advised
You can either pay her to get out of it orjump through the hoops and pray you make it.
314. BLANCHET was quite accurate. She kindly offered her firms assistance toward either end.
315. THE PIT is the embodiment of the pervasive disregard for the rule of law pervading the DDI ENTERPRISES. The
DVILS are illegal, unconstitutional, and criminal to seek and enforce, yet their use in practice has become
unremarkable-largely because those who use them benefit, and those against whom they are used are unaware of their
illegality because they are mislead.
316. The DVILS ORDERS and all acts relating to soliciting, advising, obtaining, adjudicating, issuing, and enforcing are an
illegal abuse of process. First, the laws on which they are based are unconstitutional. See Ex. 1, 2. In addition, the DV and
CR mandatory use Forms on which the orders are inconsistent with extend beyond the statutory authorization articulated
in the DVILS. Third, the terms used, even if statutorily enabled, are fatally and unconstitutionally vague and overbroad. Ex.
35.
317. DDICE operators and affiliates, in soliciting, threatening, offering, advertising, directing, granting, issuing, and
enforcing DVILS ORDERS are violating at least sections 241 and 242 of Title 18. The construction of a non profit or public
enterprise funded by United States grants and fraudulent grant applications is a violation of section 371 of that Title.
Scheme and Artifice to Defraud 2

Abuse of Process: Conspiracy to Obtain DVILS Orders through illegal formwork, technical assistance and
unauthorized practice of law
318. The process of obtaining DVILS ORDERS is further illegal. In most counties, domestic violence courts have
established family law facilitator offices, websites, forms libraries, and self help workers to guide and assist citizens in
obtaining orders operated by Defendants ALLIANCE, AOC, SCSDC, TRENTACOSTA and RODDY. These materials and
workers provide detailed, case specific advice, instructions, guidance, direction, advocacy, oversight, and monitoring of the
process by which the DVILS ORDERS are issued. Exs. 1, 36. Such practice constitutes the illegal practice of law under
California state and federal law. People v. Landlords Professional Services, Inc., 178 Cal.App.3d 68 (1986); People v.
Sipper, 61 Cal.App.Supp.844, 846 (1943); In re Glad. 98 B.R. 976, 977 (9th Cir.BAP 1989); In re Anderson, 79 B.R. 482,
484 (Bkrtcy.S.D.Cal.1987). Ex. 1.
319. The solicitation, enablement, facilitation, advocacy for, issuance, and enforcement is also illegal-a violation of numerous
constitutional rights and criminal laws. Plaintiff CCFCs July 24, 2013 Cease and Desist/Notice to the City of San Diego
describes the illegality of this practice. It is referenced at Exhibit 1 and incorporated herein as if set forth in full.
Scheme or Artifice To Defraud 3

Forensic Child Custody Evaluations
320. DDICE members recommendation, appointment, use, and payment of private child custody constitutes a scheme to
defraud and extort DDIL. Denominated by DDICE as Forensic Psychologists, child custody evaluators in family law
57
disputes have been a longstanding concern for hundreds of thousands of southern California state courts, political
representatives, and the FLC, including PLAINTIFFS. Hotly-contested, or high conflict family law cases frequently center
on disputes over child custody. Unfortunately, the experience of thousands of Southern California parents and children
suggests that the professionals recommended by DDIA, appointed, endorsed, and overseen by DDIJO, and paid for by DDIL
and their children are a sham. Ex. 3.
321. A publication by Dr. Margaret Hagen describes the fraud:
The abuses and excesses of so many child welfare specialists should not be allowed to obscure the indisputable fact that there
are many decent, caring, hardworking professionals who do their absolute best with huge caseloads to help the children as
well as they can be helped with the psychological tools available. It would be cruel and ungrateful and stupid to say
otherwise. The problem for them and for us is that the psychological tools just do not exist for them to do their jobs, and no
one can or is willing to admit that. It is just too difficult to deal with the awful reality that in the three million annual cases of
alleged abuse, our already overworked police forces would be called on to investigate and make determinations essentially
without any evidence at all of where, with whom, and by whom abuse has occurred.
Who can blame the police and the prosecutors offices-along with our courts-for wanting the assistance of professionals who
know what they are doing? It is just too bad that there are none available.
Both in custody cases involving allegations of grave risk to children in the home, and in cases arising where parents cannot
agree on custody for reasons both profoundly serious and dismayingly foolish, our judges-our whole family legal
system-desperately seeks guidance about where to find and where to place the best interests of the children involved.
Agencies, parents, and judges alike turn to psychological professionals to help them find the truth or make their case.
Our common desperation seems to have produced the common delusion that experts actually exist who really can determine
with the unerring instinct of a homing pigeon exactly where the best interests of a child lie, where a child should live,
whether and how a child has been hurt, how a child should be protected, who will be the superior parent, and who is unfit to
be a parent at all, who should have the right and the duty to care for a child, who should see the child only under restricted
conditions, and who should be kept away from the child altogether. Acceptance of their expertise has led us to trust
professionals to make these decisions for the family court system. That means ultimately that we also grant them the power to
make these decisions for our own families. The abstract need of society to protect its children becomes inevitably the rape of
the rights of the real parents of individual children.
Once again, the institutionalization of societys desire to do good results in terrible harm for those in the path of the
dogooders.
The marriage of law and psychology has reached the heights of disproportionate power for the psychologists not just in
family courts but in all legal disputes in which a psychological matter is at issue. Judges buy the validity of the expertise of
the confident psychological practitioner and no doubt welcome the opportunity to make their own decisions on some
foundation other than personal opinion and bias.
322. A true and correct copy of Dr. Hagens publication entitled Whores of the Court: The Fraud of Psychiatric Testimony
and the Rape of American Justice is attached hereto as Ex. 37 and incorporated herein as if set forth in full.
323. PLAINTIFFS have identified the existence and practice of this scheme among the ENTERPRISES, reported the same to
DEFENDANTS SDCBA, brought suit to enjoin the fraud, and are presently pursuing the matter on appeal to the United
States Supreme Court. Tadros v. Lesh, et al., Exhibit 2, incorporated herein in its entirety as if set forth in full. A complete
analysis of the numerous schemes, devices, schemes, and artifices used by Child Custody Evaluators is described in a
publication entitled Equivocal Child Abuse by Sandra B. McPherson and Farshid Afsarifard, ISBN No. ISBN-10:
1439847762 | ISBN-13: 978-1439847763 (CRC Press, 2011) (Ex. 38). The authors have declined permission to reprint the
entire publication with this pleading. As such the publication is referenced and incorporated herein as if set forth in full.
Scheme or Artifice To Defraud 4

58
Custody Evaluator Abuse of Process

324. Petitioners have identified a pattern of deception among DDIPS and DDIA to avoid detection and oversight by refusing
to obtain required authorization to operate as court-appointed agents. Without necessary paperwork, DDIPS are susceptible to
little or no judicial, professional, governmental, or parental oversight. This practice of unauthorized Dark Appointment
creates an environment in which the racketeering activity can exist under the radar of DDIJO, DDIA, and even
unsuspecting DDIL. Exhibit, 2, 3, and 4 include PLAINTIFF CCFCS Amicus Curie Brief Tadros v. Doyne, matter,
explaining this matter are incorporated herein by reference as if set forth in full.
325. Perpetrating one or more of the SAD disclosed herein, evaluators defraud parents and children of millions of dollars
fraudulently claiming that they can determine the best interests of the child by scientific means. The claim is a
demonstrable fraud. Ex. 37.
326. The custody evaluator fraud generates tens of millions of dollars per year from families and children similarly situated.
Based on on DDICE operatives misrepresentations, DDIL are lulled into a false sense of security by the DDIA, the DDIJO,
and other DDIPS who cross-refer one another, and impose threats of severe repercussions for a DDIL failure to obey the
professional referral. See, STUART ASSAULT, HARASSEMENT AND ABUSE, Ex. 2 (Tadros v. Lesh Petition, Statement
of the Case, Section B, pp. 8-12, incorporated herein by reference as if set forth in full).
327. DDIA and DDIJO participate in the SAD by recommending retaining professionals like DOYNE, INC, failing to warn
parents and children for the dangers, expense, and jeopardy of the dangers thereof.
Scheme and Artifice to Defraud 5

False Flag breach of PROFESSIONAL DUTIES
328. DDICE operators regularly breach one or more of their PROFESSIONAL DUTIES of loyalty, zealous advocacy,
fiduciary responsibility, and professional competence through one or more false flag frauds to induce, deprive, or deceive
DDIL. Ex. 32. These False Flag maneuvers involve one or more COMMERCIAL SPEECH misrepresentations to
unsophisticated DDIL, thereby depriving them of the benefits of legal professional services, and perpetrating fraud. False
Flag schemes and artifices include:
329. Poser Advocacy, Paperwads, Kite Bombs: Poser Advocacy is the practice and sale of what appears to be the practice
of law to unsophisticated DDIL. Attorneys engaging in poser advocacy act to appeal to their clients emotions, greed, or other
untoward ends to generate fees with no beneficial legal work performed. Poser advocates write angry letters (paperwads),
exchange worthless formwork discovery, or repeatedly file baseless motions with no hope of success (kite bombs), to
generate what looks like legitimate legal to an unsophisticated DDIL acclimated to a daytime TV diet of Judge Judy drama
and CSI suspense.
330. In the more sophisticated commercial legal marketplace, poser advocacy is not tolerated as clients insist, and attorneys
abide by, legitimate practice and ethical standards. Because of the unique nature of the clients and market, DDICE members
are able to pass off Poser Advocacy as real legal work. It is not.
331. Yet given the nature of the marketplace and absence of DDIL awareness of the fraud, there is little incentive to eradicate
its existence. Because it is highly profitable, even if illegal, it is therefore quietly encouraged. Because it can only exist in a
market place where all players-the attorneys, professional service providers, and even judges-play along, it requires a cabal
enterprise to be successful. Outsiders such as PLAINTIFFS who offer legal, safe, and far more efficient services are market
spoilers, and as such are illegally targeted as described herein.
Scheme and Artifice To Defraud 6

59
DDIA and DDIJO FFR/CFR Abstention

332. DDIAs for both petitioners and respondents conspire to ignore their oaths to protect, uphold and defend the U.S.
Constitution and laws of the United States, thereby providing ineffective, fraudulent, incompetent, and harmful advice to
their clients and community. Both petitioner and respondent counsels ignore the illegality of the DVILs and withhold
objections to increase job security and the billable activity provided by The Pit-either seeking to throw a litigant in it, or
working to dig one out. They fail to advise their clients rights to object to the constitutionality of such orders as doing so
would deprive the DDI of a highly profitable tool. Their failure to do so establishes an industry standard of private abstention
from exercise of constitutional rights, suiting DDIA, DDISW, DDISO, and DDIJO alike.
333. In abstention, DDIAs violate their PROFESSIONAL DUTIES, oaths of office, as well as their duties to individual
clients, and in so doing also commit invidious discrimination against the EQUAL PROTECTON CLASSES.
334. To the extent that DDILs raise objections or observations relating to the illegal acts, DDIA and DDISW CULPABLY
advise that the U.S. Constitution does not prohibit such acts, and that there is nothing you can do to prevent judges from
issuing illegal orders, or otherwise WRONGFULLY DISSUADE DDILs from their own FFRRESA. The representation is
false.
DDIJO Acquiescence
335. These SAD cannot go unnoticed by any competent legal professional, or unacted upon by any ethical one. And yet they
are prolific among Defendants, indicating that the DDIJO themselves are at best deliberately indifferent to the SAD and
ENTERPRISES that run them, further facilitating this pernicious fraud on DDIL in violation of Judicial Canon 2 to ensure
rights, PROFESSIONAL DUTIES, of all parties, and in defiance of the rule of law.
RICO 1961(5) PATTERN OF RACKETEERING ACTIVITY ALLEGATIONS

18 U.S.C. 1961(5)
COMMISSION OF RICO 1961(1)(B) RACKETEERING ACTIVITY:

336. RICO DEFENDANTS engage in the following racketeering activity, as that term is defined pursuant to 18 U.S.C.
1961(c) (RACKETEERING ACTIVITY). RICO DEFENDANTS RACKETEERING ACTIVITY as committing, aiding
and abetting, or conspiring to commit, tens of thousands of violations of the following laws within the past ten years,
including:
A. Fraud and related activity in connection with identification documents, authentication features, and information: 18 U.S.C.
1028;
B. Mail Fraud: 18 U.S.C. 1341
C. Wire Fraud: 18 U.S.C. 1343
D. Bank Fraud: 18 U.S.C. 1344
E. Intangible Personal Property Right Deprivation: Title 18 U.S.C. 1346.
F. Influencing or injuring officer or juror generally: 18 U.S.C. 1503;
G. Obstruction of proceedings before departments, agencies, and committees: 18 USC 1505;
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H. Obstruction of Criminal Investigations: 18 U.S.C. 1510;

I. Tampering with a witness, victim, or an informant: 18 U.S.C. 1512;
K. Retaliating against a witness, victim, or an informant: 18 U.S.C. 1513;
L, Peonage; obstructing enforcement: 18 U.S.C. 1581,
M. Enticement into slavery; 18 U.S.C. 1583;
N. Sale into involuntary servitude: 18 U.S.C. 1584;
O. Seizure, detention, transportation or sale of slaves: 18 U.S.C. 1585;
P. Service on vessels in slave trade: 18 U.S.C. 1586;
Q. Possession of slaves aboard vessel: 18 U.S.C. 1587;
R. Forced labor: 18 U.S.C. 1589;
S. Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor: 18 U.S.C. 1590;
T. Unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or
forced labor: 18 U.S.C. 1592;
U. Benefitting financially from peonage, slavery, and trafficking in persons: 18 U.S.C. 1593A;
V. Conspiracy, attempt to commit acts of peonage, slavery, proscribed: 18 U.S.C. 1594;
W. Interference with commerce by threats or violence: 18 USC 1951;
X. Interstate and foreign travel or transportation in aid of racketeering enterprises: 18 U.S.C. 1952;
Y. Violent crimes in aid of racketeering activity: 18 U.S.C. 1959 Z. Principal and Aider and Abettor, Attempt, Conspiracy Liability: Title 18 U.S.C. 2(a) and (b).
Racketeering Claim for Relief 1 18 U.S.C. 1962(c), (d)
Frauds and Swindles 18 U.S.C. 1341
Against Defendants DOYNE INC, BLANCHET, VIVIANO, FRITZ
337. DEFENDANTS, having affiliated with one or more ENTERPRISE and devising or intending to devise one or more
SAD for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, delivered
invoices, accountings, billing statements, letters, reports, and other correspondence into the U.S. mails, email, telephone
facsimile to STUART.
338. Such use of U.S. mails, emails, facsimile, and wire occurred as follows:
A. VIVIANO:
339. Beginning on or about July, 2007 and every month thereafter through an including December, 2007 having committed
61
or while committing one or more SAD, fraudulently communicated with STUART regarding, SAD misrepresentations,
billing, accountings, filings, and other false statements in furtherance thereof, requesting to be paid therefore in the
approximate amount of $45,000;
B. BLANCHETS and ABC&K

340. Beginning in or about December, 2007 and every month thereafter through and including November, 2008 having
committed or while committing one or more SAD, fraudulently communicated with STUART regarding, SAD
misrepresentations, billing, accountings, filings, and other false statements in furtherance thereof, requesting to be paid
therefore in the approximate amount of $250,000;
C. FRITZ
341. Beginning in or about May, 2008 and every month thereafter through and including March, 2011, for invoices
fraudulently billed and charged in furtherance of one or more SAD requesting to be paid therefore in the approximate amount
of $190,000;
D. DOYNE INC.
342. Beginning in or about May, 2008, and every month thereafter through and including March, 2010, having committed or
while committing one or more SAD, ABUSE OF PROCESS, BREACH OF CONTRACT, FRAUD,
EXTORTION,ROBBERY, and INTENTIONAL INFLICTION OF EMOITNAL DISTRESS, fraudulently communicated
with STUART regarding the same, including delivering SAD misrepresentations, billing, accountings, filings, and other false
statements in furtherance thereof requesting to be paid therefore in the approximate amount of $17,500.
343. DEFENDANTS and each of them further committed fraud by virtue of use of the Internet, describing, advocating, and
supporting their SAD and ENTERPRISES as legitimate and healthy practices, and failing to advise PLAINTIFFS and the
general public of the true nature of their ENTERPRISES and SAD.
Honest Services Fraud 18 U.S.C. 1346
Against All RICO DEFENDANTS
345. DEFENDANTS engaged in one or more SAD by, through, and in conjunction with the ENTERPRISES to deprive
PLAINTIFFS of the intangible right of honest services.
346. DEFENDANTS, and each of them, supported and promoted one another in perpetrating each SAD actionable fraud,
bribery and/or kickbacks, wherein a quid pro quo (monetary, preferential referral, business referral, and/or some other form
of benefit) was provided by the RICO defendants to persons unknown to plaintiffs to assure that PLAINTIFFS in their
PUBLIC BENEFIT ACTIVITIES would be effectively punished, silenced, discredited, and rendered ineffective as an
effectively competing alternative vehicle offering reasonable and realistic forms of professional quality services to counsel
and advise individual parents and guardians addressing family law, child custody, and domestic relations issues. Plaintiff
alleges that such conduct constitutes the deprivation of the intangible personal property right to receive honest-services for
purposes of 18 U.S.C. 1341, 1343, and 1346.
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Influencing or injuring officer or juror generally 18 U.S.C. 1503
Against Defendants Simi, Batson, SDCBA, ODO, SAC
348. DEFENDANTS, by the STUART ASSAULT, corruptly, or by threats or force, or by any threatening letter or
communication, endeavored to influence, intimidate, or impede STUART in performance of his FFRRESA, or corruptly or
by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, PLAINTIFFS from continuing in their cooperation with the FEDERAL LAW
ENFORCEMENT OFFICERS in pursuing the due administration of justice.
Obstruction of proceedings before departments, agencies, and committees: 18 U.S.C. 1505, 1959
350. DEFENDANTS corruptly and by force or threat of force in the STUART ASSAULT endeavored to and did influence,
obstruct, or impede PLAINTIFFS FFRRESA and the DUE ADMINISTRATION OF JUSTICE before the FEDERAL LAW
ENFORCEMENT OFFICERS, and the due and proper exercise of the power of inquiry under which any inquiry or
investigation is being had by either House, or any committee of either House or any joint committee of the Congress of the
United States pursuant to PLAINIFFSS FFRRESA before the Representatives of the United States.
351. In so doing, DEFENDANTS SDCBA, ODO, SDSO, and SAC kidnaped, assaulted with a dangerous weapon, committed
assault resulting in serious bodily injury upon, or threatens to commit a crime of violence to PLAINTIFFS in violation of the
laws of any State or the United States, or attempted or CONSPIRED so to do-in exchange for (i) consideration, a promise or
agreement to pay, pecuniary value, from the ENTERPRISES, or (ii) the purpose of gaining entrance to or maintaining or
increasing position in the ENTERPRISES.
Tampering with a witness, victim, or informant 18 U.S.C. 1512(a)(2)(A)
353. DEFENDANTS, by the STUART ASSAULT, CULPABLY used physical force, including confinement and physical
action, against STUART, and the threat of physical force against PLAINTIFFS and their affiliates, at the SDCBA
SEMINAR, and attempted to do so, with intent to influence, delay, or prevent the testimony of PLAINTIFFS and their
affiliates, in their FFRRESA in THE DUE COURSE OF JUSTICE.
Tampering with a witness, victim, or informant 18 U.S.C. 1512(a)(2)(B), (C)
355. DEFENDANTS, by the STUART ASSAULT, CULPABLY caused or induced PLAINTIFFS and their affiliates to
CHILL, and hindered, delayed, and prevent PLAINTIFFS and their affiliates FFRRESA to a FEDERAL LAW
ENFORCEMENT OFFICER.
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Witness Tampering 18 U.S.C. 1512(b)

357. DEFENDANTS, by the STUART ASSAULT, CULPABLY used and attempted to use intimidation, threatened, and
corruptly persuaded PLAINTIFFS and their affiliates, to
(1) influence, delay, or prevent PLAINTIFFS FFRRESA in the DUE COURSE OF JUSTICE;
(2) cause or induce PLAINTIFFS and their affiliates to CHIILL, and
(3) hinder, delay, or prevent PLAINTIFFS FFRRESA communications to FEDERAL LAW ENFORCEMENT OFFICERS,
the Grand Jury, or a Judge of the United States District Court for the Southern District of California the DDIJO Complaints,
Doyne Complaints, and other violations of the CRCCS.
Racketeering Count 8
Witness Tampering 18 U.S.C. 1512(c)
359. DEFENDANTS, by the STUART ASSAULT, CULPABLY corruptly obstructed, influenced, or impeded the DUE
COURSE OF JUSTICE and attempted to do so.
Tampering with a witness, victim, or informant 18 U.S.C. 1512(c)
361. DEFENDANTS corruptly and CULPABLY obstructed, influenced, or impeded the DUE COURSE OF JUSTICE and
attempted to do so.
362. DEFENDANTS acted corruptly in making the fraudulent statements attributed to them above, thereby acting with an
improper purpose to obstruct, thwart or mislead STUART into diverting his contact with the U.S. Attorneys Office, F.B.I,
and other FFRRESA would be handled appropriately, fully, and competently by the CJP, thereby causing STUART to
continue ENGAGEMENT primarily with the CJP rather than primarily pursuing the matter in federal district court, thereby
obstructing, influencing, or impeding the DUE COURSE OF JUSTICE and attempting to do so.
363. DEFENDANTS false, misleading, deceptive, concealing, or destroying behavior included;
A. That the DDIJO COMPLAINT allegations would be fully and fairly investigated;
B. That the CJP has no jurisdiction over DEFENDANT DOYNE INC. because he is not an elected or appointed judicial
official;
C. That the DDIJO COMPLAINTS would be maintained in confidence and not disclosed to DDIJO DEFENDANTS;
D. That STUART need not pursue the DDIJO COMPLAINT I in federal court as the CJP process was the first step in the
chain of obtaining relief from a federal court.
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364. In fact, the CJP is not an unbiased organization as it largely ignores complaints by litigants when compared with
attention paid to complaints by prosecutors and judges. The CJP takes action in less than 2% of all complaints by the public,
allowing tens of thousands to go without response. A true and correct copy of CJPs 2011 Annual Report is attached at
Exhibit 39; a chart corroborating these allegations is in DEFENDANTS possession and is referenced as part of Exhibit 39 as
if set forth at length herein.
365. As such, the CJP largely misrepresents itself as a legitimate supervisor of judicial misconduct, creating a false sense of
public confidence in the CJP investigative an disciplinary process, tying up litigants who would otherwise seek relief in
federal court, placing them in a years-long maze of investigation until the time for filing a complaint in a legitimate forum
has expired. As such, the CJP misrepresents itself as a legitimate dispute resolution body when in fact it operates as a dead
letter office to hinder, delay, thwart, obstruct, and mislead STUART and other citizens, effectively depriving STUART of
rights to due process, access to courts, right to trial by jury, and other rights, privileges and immunities.
Tampering with a witness, victim, or informant 18 U.S.C. 1512(d)
367. DEFENDANTS CULPABLY by the STUART ASSAULT harassed PLAINTIFFS and their affiliates thereby hindering,
delaying, preventing, dissuading PLAINTIFFS and their affiliates from FFRRESA, and THE DUE COURSE OF JUSTICE,
seeking further FFRRESA with the intent to arrest or seek the arrest of DOYNE INC., ALKSNE, SCHALL, WOHLFEIL,
and other DDIJO entities identified herein.
Retaliating against a witness, victim, or an informant 18 U.S.C. 1513(b)
369. DEFENDANTS CULPABLY threatened, attempted to, engaged in the STUART ASSAULT thereby causing bodily
injury with intent to retaliate against PLAINITFFS for PLAINTIFFS role in FFRRESA and the DUE COURSE OF
JUSTICE.
Retaliating against a witness, victim, or an informant-other harm 18 U.S.C. 1513(e)
371. DEFENDANTS CULPABLY, with the intent to retaliate, committed the acts ascribed to them in the STUART
ASSAULT, thereby causing DAMAGES to PLAINTIFFS and their affiliates, their lawful employment, PUBLIC BENEFIT
EFFORTS, for FFRRESA and the DUE COURSE OF JUSTICE.
Conspiracy to Retaliate against a witness, victim, or an informant 18 U.S.C. 1513(f)
373. DEFENDANTS, and each of them, CULPABLY conspired with each other DEFENANT to commit each act described
above.
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VII. PROSPECTIVE RELIEF

375. For each count seeking prospective relief below, PLAINTIFFS allege:
FICRO COUNTS 1-34:

Fraud; Deprivation of Rights, Privileges and Immunities Pursuant to 42 U.S.C. Sections 241, 242, 371
Against COLD
376. This is an allegation that Defendants in committing the acts alleged in Counts 1-21 and RICO Claims for Relief 1-13,
above, concurrently committed one ore move deprivations of PLAINTIFFS rights, privileges, and immunities in violation of
18 U.S.C. 242, 241, and 371. These allegations are relevant to DEFENDANTS ENTERPRISE, conspiracy, and
racketeering activity, and are the basis for PLAINTIFFS claims for prospective relief under 28 U.S.C. 2201. As such
violations are indictable federal offenses, and shall hereinafter be referred to as FEDERAL INDICTABLE CIVIL RIGHTS
OFFENESES (FICRO).
377. As part of their ongoing CIVIL and CRIMINAL CONSPIRACIES to deprive PLAINTIFFS and others similarly
situated of FFR, CFC, FFRRESA, and other civil rights, DEFENDANTS have CULPABLY committed each count and claim
for relief alleged herein in furtherance of the conspiracies alleged hereinabove, establishing the existence of the crimes,
conspiracies, and enterprises alleged herein.
378. DEFENDANTS activities described herein constitute a conspiracy to commit one or more violations of the FFR, CFR,
actionable under the CRCCS (FICRO CONSPIRACY). The purpose of the FICRO CONSPIRACIES is to deprive
PLAINTIFFS and those similarly situated of their rights, privilege, and immunities under the Constitution of United States by
committing, causing, or contributing to, or ratifying each of the acts alleged against each DEFENANT.
379. DEFENDANTS, and each of them, acted with specific knowledge of PLAINTIFFS FFRRESA and PUBLIC BENEFIT
ACTIVITIES.
380. On information and belief, upon learning of each fact relating to PLAINTIFFS PUBLIC BENEFIT ACTIVITIES,
DEFENDANTS coordinated efforts, shared knowledge, and shared a common purpose with one or more of the other
DEFENDANTS so as to be the agents of on another in FICRO CONSPIRACY to retaliate against, disparage, harm, injure,
PLAINTIFFS because of the same.
381. In carrying out the FICRO CONSPIRACY, DEFENANTS committed, were aware of, acquiesced to, intended, and
ratified each act and/or the acts and/or omissions of each and every other DEFENDANT.
382. DEFENDANTS are or were co-workers, collaborators, co-owners, co-operators, affiliates, colleagues, members of one
anothers personal and professional networks of one or more other of DEFENDANTS.
383. Defendants C. GOLDSMITH and unnamed entity Mr. Jan Goldsmith all times identified herein, were husband and wife,
common parents of children, former co-workers / Judges of the Superior Court of the State of California, cohabitants, friends,
collaborators, and formerly common parties to a martial dissolution proceeding.
384. DEFENDANTS, and each of them, in committing or conspiring to commit the acts ascribed to them CULPABLY acted
in furtherance of the CRIMINAL CONSPIRACY, including the ENTERPRISES, entities, color of law, misfeasance and
66
malfeasance ascribed to them herein.

Prospective Relief Count 1

Motion for Harassment Protective Order 18 U.S.C. 1514(b)
386. PLAINTIFFS hereby move and request that the Court issue temporary restraining order prohibiting harassment of a
victim or witness in a Federal criminal case pursuant to 18 U.S.C. 1514(b).
387. PLAINTIFFS are victims and witness to FICRO Counts 1-34, and numerous civil rights offenses committed by
DEFENDANTS as described herein. PLAINTIFFS continue to interact with FEDERAL LAW ENFORCEMENT AGENTS
in the DUE ADMINISTRATON OF JUSTICE, including in ongoing criminal investigations involving DEFENDANTS
herein and exercise FFRRESA.
388. DEFENDANTS have undertaken a course of conduct to harass, interfere with, intimidate, harm, and retaliate for
PLAINTIFFS protected activities, and continue to do so.
389. PLAINTIFFS have experienced and are in fear of further harassment, threats, and intimidation, and submit that from the
allegations set forth in this Verified Complaint.
390. Pursuant to 18 U.S.C. 1514(b), PLAINTIFFS respectfully submit that there are reasonable grounds for the court, on its
own motion, to (1) believe that such harassment exists, and (2) an Order is necessary to prevent and restrain DEFENDANTS
from further and ongoing offenses under section 1512 of this title, other than an offense consisting of misleading conduct, or
under section 1513 of this title.
391. PLAINTIFFS respectfully request that the Court issue, on its own motion, an Order:
A. Restraining and enjoining DEFEDANTS and each of them from further acts of HARRASSMENT AND ABUSE in
connection with this matter and any ongoing DUE ADMINISTRATION OF JUSTICE and FFRRESA in which
PLAINTIFFS are involved;
B. That the Order shall be in effect when made;
C. That PLAINTIFFS shall give notice to DEFENDANTS within three business days;
D. That the Order shall expire within 14 days from issuance
E. That PLAINTIFFS may Petition the Court that good cause exists to extend the Order as provided in subsection (c) of this
section (18 U.S.C. 1514(c));
F. That a motion for a protective order shall be set down for hearing at the earliest possible time;
G. That the temporary restraining Order is based on:
i. The DEFENDANTS past harassment, obstruction, tampering, and retaliation as set forth herein,
ii. The civil rights HARASSMENT AND ABUSE described STUART Assault and the DDIJO COMPLAINTS; and
iii. PLAINTIFFS ongoing FFRRESA and the DUE ADMINISTRATION OF JUSTICE,
67
Prospective Relief Count 2

Declaratory Judgment Pursuant to 28 U.S.C. 2201
Against All Defendants
392. A case of actual controversy between DEFENDANTS and PLAINTIFFS exists with regard to PLAINTIFFS free
exercise, reform and support and advocacy of Family Federal Rights, laws, and Constitution of the Unites States, and the
validity of state law conflicting therewith.
393. Specifically, PLAINTIFFS, by virtue of their FFRRESA detailed herein, have asserted, and DEFENDANTS, by virtue
of their acts the acts and operations CRIMINAL CONSPIRACIES and ENTERPRISES with which they are affiliated,
including their illegal, abusive, retaliatory, depriving, and obstructive behavior toward PLAINTIFFS and others described
herein have contested and denied, the following FFRRESA rights:
A. FFR Rights detailed at Table 1.0;
B. CALIFORNIA FUNDAMENTAL RIGHTS; and
C. The Supremacy of the constitution and laws of the United States to the laws of the State of California.
394. Further, by similar means, DEFENANTS have asserted, and PLAINTIFFS have denied, that certain laws of the State of
California which have or pose a clear and present danger of injuring, inhibiting, depriving, interfered with, PLAINTFFS
FFRRESA are valid and enforceable:
A. The DVILS;
B. The DVILS ORDERS;
C. The processes, procedures, rules, customs, and practices of the FL-IACE and their offices statewide;
D. The processes, procedures, rules, customs, and practices of Child Custody Evaluations and Evaluators.
395. PLAINTIFFS respectfully request an Order declaring PLAINTIFFS rights and other legal relations vis--vis
DEFENDANTS HARRASSMENT AND ABUSE and other deprivation of FFR and CFR, as follows:
A. That the FFR, and CFR are
a. valid and enforceable rights of U.S. Citizens residing or located in the State of California and their advocates in all State
Courts within the State of California; and
b. superior to any state laws which conflict, hinder, or deprive PLAINTFFS of the same;
B. That no COLD is entitled to deprive any U.S. Citizen residing or present in the State of California of either the CFR or
FFR by reliance on conflicting state law, even in good faith;
C. That COLD are not entitled to immunity under federal law for acts not specifically authorized by their constitutions,
charters, or other foundational documents;
D. That all laws, rules, policies, regulations, and forms based thereon which conflict, hinder, or deprive PLAINTFFS of their
FFR and CFR, including those specified herein, are unconstitutional;
E. That the EQUAL PROTECTION CLASSES are valid classes of persons entitled to heightened protection under the 5th and
14th Amendments to the United States Constitution with regard to all DEFENDANTS;
F. That DEFENDANTS have violated each of the FICRO COUNTS as alleged against each of them herein; and
68
G. That SUPERVISING DEFENANTS and MUNICIPAL ENTITIES behaviors, policies, and procedures depriving of or
infringing on FFR and CFR are illegal, unconstitutional, and deliberately indifferent to the likelihood of Constitutional injury
to PLAINTIFFS, and that SUPERVISING DEFENDANTS have a duty to prevent or aid in preventing further deprivations of
the FFR by those within their to influence or control pursuant to each of the EQUAL PROTECTION CLASSES of which
PLAINTFFS are members or advocates.
396. Plaintiff further requests that the court exercise its equitable powers pursuant to the CRCCS and F.R.C.P. Rules 57 and
65 to enjoin defendants from:
A. Further violations of the FFR, CFR, CRCCS;
B. Further HARRASSMENT AND ABUSE;
C. Further commission of any FICRO;
D. Further actions to solicit, prepare, file, petition for, issue, grant, or enforce the DVILS an DVILS ORDERS, forms, rules,
advice, practices related thereto; and
E. Further interference with any PLAINTIFFS and any United States Citizens exercise and enjoyment of FFRRESA.
WHEREFORE PLAINTIFFS pray for judgment as follows:
1. An award of compensatory damages and interest thereon according to proof at trial;
2. An award of reasonable costs and expenses incurred in this action, including counsel fees and expert fees as allowable
under the Title 18, 28, and 42 sections asserted;
3. Declaratory, Injunctive, and Prospective Relief as requested including injunctive remedies provided under 42 U.S.C.
1983, 1988, and 18 U.S.C. 1964 (a), (c), and (d);
4. That The Court exercised its initiative to Order DEFENDANTS be restrained as requested in Prospective Relief Count 1
forthwith, and set hearing for extending such Order during the pendency of this litigation;
5. That a preliminary and permanent injunction be issued enjoining Defendants, and any employees, agents, servants,
officers, representatives, directors, attorneys, successors, affiliates, assigns, and entities owned or controlled by Defendants,
and all those in active concert or participation with Defendants, and each of them who receives notice directly or otherwise of
such injunction from making any further misrepresentations in COMMERCIAL SPEECH as described above; and
6. Such other and further relief as the Court may deem just and proper.
JURY TRIAL DEMANDED

Plaintiffs hereby demand a trial by jury.
DATED: August 20, 2013
By: /s/ Colbern C. Stuart
Colbern C. Stuart, III President,
California Coalition for Families and Children
69
in Pro Se
Dean Browning Webb
Attorney for Plaintiffs California
Coalition for Families and Children, Inc. and Lexevia, PC
End of Document
70
Defendant Marilyn Kriebel, Successor Trustee of the Roger J. Keily

Trusts Post Trial Memorandum of Points and Authorities
Oscar PEREYRA, Sr. and Linda Pereyra, Plaintiffs, v. Aaron Fabian JIMENEZ, Juan Reyes, Vanessa Reyes, Tahje
Jahari Hargrove, Kayla D. Rains, as Trustee of the Roger J. Keily Trust and Does 1 to 100, Defendants. | Superior
Court of California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Oscar PEREYRA, Sr. and Linda Pereyra, Plaintiffs, v...., 2012 WL 5056568...
2012 WL 5056568 (Cal.Super.) (Trial Motion, Memorandum and Affidavit)

Superior Court of California.
San Diego County
Oscar PEREYRA, Sr. and Linda Pereyra, Plaintiffs,
v.
Aaron Fabian JIMENEZ, Juan Reyes, Vanessa Reyes, Tahje Jahari Hargrove, Kayla D. Rains, as Trustee of the
Roger J. Keily Trust and Does 1 to 100, Defendants.
No. 37-2011-00087407-CU-PO-CTL.
April 4, 2012.
Defendant Marilyn Kriebel, Successor Trustee of the Roger J. Keily Trusts Post Trial Memorandum of Points and
Authorities
Kenneth H. Stone, Esq., Bar #84836, Rebecca L. Reed, Esq., Bar#275833, The Stone Law Group, The Fletcher Building, 624
Broadway Suite 303, San Diego, CA 92101, (619) 233-1818, (619) 233-3256 Facsimile, Attorney for Defendant, Marilyn
Kriebel, as Successor Trustee of the Roger J. Keily Trust.
Judge: Hon. Lisa Schall.
DATE: April 4, 2012
TIME: 9:00 a.m.
DEPT: C-46
COMPLAINT FILED: March 10, 2011
TRIAL DATE: March 26, 2012
I. LANDLORDS DUTY
A. The Evidence Does Not Establish That The Trust Had Actual Knowledge of A Dangerous Condition And the Right
and Ability to Cure The Condition.
The landlord cannot be liable for a third partys injury unless the landlord has actual knowledge of a dangerous condition and
the right and ability to cure the condition. See CACI, No. 1006; See also, Salinas v. Martin (2008) 166 Cal.App.4th 404, 412
(w)here a landlord has relinquished control of property to a tenant, a bright line rule has developed to moderate the
landlords duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and
control ... before liability may be thrust on a landlord for a third partys injury due to a dangerous condition on the land, the
plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability
to cure the condition. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [82 Cal.Rptr.3d 735], internal citations omitted.)
Only where the circumstances are such that the defendant must have known and not should have known will an inference
of actual knowledge be permitted. Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504, 514.
Further, (l)andlord liability cannot rest solely on the fact that activity is dangerous in the abstract. Evidence must show the
landlord had reason to know the tenants activity posed a foreseeable risk of harm to third persons. See California Practice
72
Guide: Landlord-Tenant (The Rutter Group 2011) 6:87.1, p. 6-105; See also, Sturgeon v. Curnutt (1994) 29 CA 4th 301,
307-308 (wherein landlord rented property to a tenant and a third person was shot and injured by the tenant while visiting the
property. At trial, the evidence showed that the landlord knew the tenant had a problem with alcohol; that he was convicted
of driving under the influence and attended a rehabilitation program. The landlord also knew the tenant had firearms. After
presentation of the Plaintiffs case, Defendant moved for nonsuit, which the trial court granted. The Court of Appeals
affirmed, explaining that despite the foregoing evidence, the Plaintiff had offered no evidence that the tenant ever harmed
anyone due to either his problem with alcohol or his possession of firearms or that he handled firearms in an unsafe manner
while drunk).
B. The Trust Did Not Have A Non-Delegable Duty.

A landlord does not have a nondelegable duty, unless the landlord hires an independent contractor to perform work on the
premises. Vicarious liability for a non-delegable duty only applies where there is harm arising from the acts of the
independent contractor in the maintenance of the premises. See California Practice Guide: Landlord-Tenant (The Rutter
Group 2011) 6:9.1-6:9.2, pp. 6-3 through 6-4. See also, Koepnick v. Fashiwa Fudosan America, Inc. (2009) 173 CA4th 32,
36-37; Aceves v. Regal Pale Brewing Co. (1979) 24 CA3d 502, 509.
II. AGENCY
A. There is No Evidence of Agency Between The Trust and Cheryl Johnson and/or Juan Reyes.
The existence of an agency is a factual question within the province of the trier of fact whose determination may not be
disturbed on appeal if supported by substantial evidence. L. Byron Culver & Associates v. Jaoudi Industrial & Trading
Corp. (1991) 1 Cal.App.4th 300, 305. The burden of proving the existence of an agency rests on the one affirming its
existence. Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773. An agency must rest upon an agreement. DAcquisto
v. Evola (1949) 90 Cal.App.2d 210, 213. An agency does not exist where on performs a mere favor for another, without
being subject to any legal duty of service and without assenting to any right of control... Hanks v. Carter & Higgins of
Cal., Inc. (1967) 250 Cal.App.2d 156, 161. Instead, the principal must in some manner indicate that the agent is to act for
him, and the agent must act or agree to act on his behalf and subject to his control. Hanks, supra, 250 Cal.App.2d at 161.
Control may not be inferred merely from the fact that one persons act benefits another. Id. Vant Rood v. County of Santa
Clara (2003) 113 Cal.App.4th 549, 572. Further, (t)he fact that parties had a preexisting relationship is not sufficient to
make one party the agent for the other.... Id.
The authority of an agent is only relevant if the Court finds that there is indeed an agency. An actual agent may have either
actual or ostensible authority to act for the principal. (emph. added). (See Civ. Code, 2315; 2 Witkin, Summary of Cal.
Law, supra, Agency & Employment, 75, p. 79.)
III. RECREATIONAL IMMUNITY

Civil Code 846 states in pertinent part that riding, including animal riding, snowmobiling, and all other types of vehicular
riding is considered a recreational purpose. Once it is established that the defendant was the owner of the property and that
the injured party was using the property for a recreational purpose, the statutory immunity applies. Shipman v. Boething
Treeland Farms, Inc. (2000) 77 Cal.App.4th 1424, 1428-1429; and Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787
A. Plaintiffs have not demonstrated that there was a willful or malicious failure to warn.
In order to satisfy the willful and malicious conduct exception to 846 immunity, a Plaintiff must demonstrate: (1) Actual or
73
constructive knowledge of the peril to be apprehended, (2) Actual or constructive knowledge that injury is a probable, as
opposed to a possible, result of the danger, and (3) Conscious failure to act to avoid the peril. Charpentier v. Von Geldern
(1997) 191 Cal.App.3d 101, 113. In Charpentier, the Plaintiff claimed that a Defendant, who owned 51 acres of property
along the river, willfully and maliciously failed to guard or warn against the dangerous conditions of the Feather River in
that it was too shallow for swimming and diving and had submerged objects. Id. at 106. There, the court found that Plaintiff
had failed to establish the Defendants conduct rose to a level of willfulness conduct.
B. There was no consideration paid for use of Defendants property.

This exception does not apply because the property owner was neither aware that the property was being used by decedent,
nor was there any consideration paid in connection with the recreational vehicle operation that resulted in the fatal accident.
Civ. Code 846 provides that it does not limit liability which otherwise exists for injury suffered in any case where
permission to enter for the above purpose (referring to recreational purpose) was granted for a consideration other than the
consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same
purpose.
The trial court must construe this exception narrowly. Johnson, supra, 21 Cal. App. 4th at 315. (A)t minimum, consideration
received must consist of a present, actual benefit bestowed or a detriment suffered. Id. at 316.
The Fourth District Court of Appeals in Miller v. Weitzen (2005) 133 Cal. App. 4th 732 (Miller) pronounced the type of
consideration necessary to invoke the exception set forth in Civ. Code 846, explaining that ... for the exception to apply,
consideration must generally be paid in the form of an entrance fee... Miller, supra, 133 Cal. App. 4th at 739.
In this case, Plaintiffs attempted to prove that OSCAR PEYERA SR. performed various tasks on the property over the course
of a year and that he and Cheryl Johnson agreed that his children would always be welcome on the property.
To satisfy the consideration exception to Civ. Code 846, Plaintiffs needed to show that consideration was paid to the
landowner, ROGER J. KEILY TRUST. Plaintiffs attempt to create an agency chain between ROGER J. KEILY TRUST and
Cheryl Johnson and then from Ms. Johnson to JUAN REYES was not supported by any credible evidence.
Furthermore, Plaintiffs alleged consideration from OSCAR PEREYRA SR. to Cheryl does not constitutes consideration
within the meaning of Civ. Code 846 because no one paid an entrance fee to enter the property to ride the Yamaha (Miller
supra, 133 Cal. App. 4th at 739), nor did OSCAR PEREYRA perform any work presently and directly in exchange for Oscar
Pereyra Jr. to enter the property to ride his Yamaha at any time, including the date of the incident. See Civ. Code 846. See
also, Johnson, supra, 21 Cal. App. 4th at 316 ((A)t minimum, consideration received must consist of a present, actual
benefit bestowed or a detriment suffered. (emphasis added).
C. There was no Express Invitation.

Case law has established that conventional premises user labels of invitee and licensee are inapplicable to Civil Code
846. Courts have held that the meaning of express invitation encompasses persons who are personally selected to come
on to the property by the land owner as opposed to merely permitted. Calhoon v. Lewis (2000) 96 Cal.App.4th 108,
113-115.
[The] express invitation exception requires a direct personal request from the land owner to the invitee
to enter the property, although the invitation need not be for the specific purpose of engaging in
recreation. Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1116.
Even if Decedent had been invited onto Defendants property by a tenant or occupant thereof or unless there is a direct
request by the owner, such an invitation will not suffice to avoid Civil Code 846 immunity. Shipman v. Boething Treeland
74
Farms, Inc., Supra at 1431. Our Courts hold that express invitation within the meaning of the statute requires a direct
personal request from the landowner to the invitee to enter the property. Jackson v. Pacific Gas & Electric Co. (2001) 94
Cal. App. 4th 1110, 1116. The Legislature intended the phrase expressly invited to mean those persons who were
personally selected to come onto the property by the landowner. Calhoon v. Lewis (2000) 81 Cal. App. 4th 108, 113.
(internal citations omitted).
The purpose of section 846 is to encourage landowners to permit people to use their property for
recreational use without fear of reprisal in the form of lawsuits. The trial court should therefore construe
the exceptions for consideration and express invitees narrowly. (emphasis added). Johnson v. Unocal
Corp. (1993) 21 Cal. App. 4th 310, 315 (Johnson).
Plaintiffs introduced evidence that Cheryl Johnson asked Plaintiff OSCAR PEREYRA SR. to perform work on the property
and that he and Ms. Johnson discussed that his children would always be welcome on the Property to see the animals, to play
on tree swings, etc. and for his son to ride his Yamaha Pee Wee model mini-bike. The foregoing facts, even if true, are
insufficient. It is well-settled that an indirect request to come onto property and/or mere permission to come onto property
does not give rise to an express invitation within the meaning of Civ. Code 846. See Johnson, supra, 21 Cal. App. 4th at
317. See also, Civ. Code 846.
In Johnson, the Defendant and landowner, Unocal, granted Abex Corporation permission to use Unocals picnic grounds for
a company picnic for Abexs employees. The Plaintiff, an Abex employee, purchased a ticket and attended the picnic.
Plaintiff was injured during a game of horseshoes, while leaning against a railing which collapsed and caused him to fall.
Plaintiff brought suit against the landowner for Premises Liability. The Defendant moved for summary judgment on the basis
of Civ. Code 846. Plaintiff argued that he was an express invitee within the meaning of the statute because his employer,
Abex, executed a permission agreement with the landowner. However, the Court of Appeals, cautioning that the express
invitee exception should be construed narrowly, held that the execution of the Permission Agreement between Abex and
Unocal was not a direct, personal request from the landowner to the Plaintiff to attend the picnic. Therefore, Plaintiff was not
an express invitee of the landowner. Johnson, supra, 21 Cal. App. 4th at 317.
IV. AS A MATTER OF LAW, PLAINTIFFS WRONGFUL DEATH CLAIM IS BARRED BY THE DOCTRINE OF
PRIMARY ASSUMPTION OF RISK.
Even if Defendant was not entitled to the protection of Civil Code 846 recreational immunity, Plaintiffs wrongful death
claim would still be barred by the doctrine of primary assumption of risk.
Primary assumption of risk arises where Plaintiff voluntarily participates in an activity or sport involving
certain apparent risks; primary assumption of risk does bar recovery because no duty of care is owed to
such risk. Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11.
Riding recreational vehicles off road has been deemed the type of activity where primary assumption of the risk is applicable.
In Distefano v. Forester (2001) 85 Cal.App.4th 1249, the court ruled that The sport of off-roading involves inherent risks
that the participants in this recreational activity may be involved in inadvertent vehicle collisions and may suffer serious
injury or death. Distefano, at 1264. There, the Plaintiff was riding a motorcycle in an off road desert area when he was
struck, head on, by the Defendant, who was driving a dune buggy. The court determined that primary assumption of the risk
applied and that in the absence of evidence that the Defendant intentionally injured [Plaintiff] or engaged in conduct that
was so reckless as to be totally outside the range of the ordinary activity involved in the sport of off-roading that primary
assumption of the risk barred any recovery. Distefano, Supra at 1264. In this case, Defendant simply owned the property
where the accident occurred; there was neither intentional injury to the decedent, nor any reckless conduct by the Defendant.
Consequently, Plaintiffs claim is barred as a matter of law under the doctrine of primary assumption of the risk. Amezcua v.
Los Angeles Harley Davidson, (2011) CAAPP2, B224748 (decided October 27, 2011).
As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his (or her) failure to
exercise reasonable care in the circumstances... Calhoon v. Lewis, (2000) 81 Cal. App. 4th at 115. The scope of this duty of
75
care, however, is limited in the context of active sports. Id. Under the primary assumption of risk doctrine, there is no duty to
eliminate or protect a plaintiff against risks that are inherent in a sport or activity. Id. It is well-established that defendants
generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.
Id. (T)he nature of the applicable duty or standard of care...varies with the role of the defendant whose conduct is at issue in
a given case. Id. at 117. Where a residential property owner does not hold out his property for the activity, an owner does
not have a duty to refrain from increasing the risks to the recreational user. See Calhoon, supra, 81 Cal. App. 4th at 117-118.
ROGER J. KEILY TRUST did not owe a duty to Oscar Pereyra, Jr. while he rode his Yamaha motorcycle on the subject
property. However, even assuming ROGER J. KEILY TRUST owed a duty to the decedent, the facts show that the trust did
not increase the risk of Oscar Pereyra Jr. being injured given that the decedent voluntarily engaged in racing with an
unaffiliated third party who was operating the Utility Cart, which was not owned by the trust.
DATE: March 28, 2012
<<signature>>
KENNETH H. STONE, ESQ.
Attorney for Defendant
MARILYN KRIEBEL, as Successor Trustee of the ROGER J. KEILY TRUST
End of Document
76
Complaint to Determine that Debt is not Dischargeable

In re: Nicolas MARSCH, III, Debtor. Lennar Corporation, a Delaware corporation, Lennar Homes of California, Inc.,
a California corporation, Lennar Land Partners II, a Florida general Partnership, LLP II HCC Holdings, LLC, a
Delaware Limited Liability Company, Lennar San Jose Holdings, Inc., a California corporation; individually and
derivatively on behalf of HCC Investors, LLC and Lennar Bridges, LLC Plaintiffs, v. Nicolas Marsch, III, an
individual | United States Bankruptcy Court, S.D. California.
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Comment:
In re: Nicolas MARSCH, III, Debtor. Lennar Corporation, a..., 2010 WL 3157874...
2010 WL 3157874 (Bkrtcy.S.D.Cal.) (Trial Pleading)

United States Bankruptcy Court, S.D. California.
In re: Nicolas MARSCH, III, Debtor.
Lennar Corporation, a Delaware corporation, Lennar Homes of California, Inc., a California corporation,
Lennar Land Partners II, a Florida general Partnership, LLP II HCC Holdings, LLC, a Delaware Limited
Liability Company, Lennar San Jose Holdings, Inc., a California corporation; individually and derivatively on
behalf of HCC Investors, LLC and Lennar Bridges, LLC Plaintiffs,
v.
Nicolas Marsch, III, an individual, Defendant.
No. 10-02939-PB11.
May 24, 2010.
Complaint to Determine that Debt is not Dischargeable
Ben H. Logan (S.B. # 071711), OMelveny & Myers LLP, 400 South Hope Street, Los Angeles, California 90071,
Telephone: (213) 430-6000, Facsimile: (213) 430-6407; Daniel M. Petrocelli (S.B. # 97802), David Marroso (S.B. #
211655), OMelveny & Myers LLP, 1999 Avenue of the Stars, 7th Floor, Los Angeles, California 90067, Telephone: (310)
246-6850, Facsimile: (310) 246-6679; Christopher Celentino (S.B. # 131688), Duane Morris LLP, 101 West Broadway, Suite
900, San Diego, California 92101-8285, Telephone: (619) 744-2246, Facsimile: (619) 744-2201; Counsel for Lennar
Corporation, Lennar Homes of, California, Inc., Lennar Land Partners II, LLP II HCC, Holdings, LLC, Lennar San Jose
Holdings, Inc.; individually and derivatively on behalf of HCC Investors, LLC and Lennar Bridges, LLC.
Chapter 11
Plaintiffs Lennar Corporation, Lennar Homes of California, Inc. (Lennar Homes or Lennar DLA-1 Plaintiff and, together
with Lennar Corp. Lennar-Florida Plaintiff), Lennar Land Partners II (LLP II), LLP II HCC Holdings, LLC (HCC
Holdings), Lennar San Jose Holdings (LSJH and, together with Lennar Homes, LLP II, and HCC Holdings, Lennar-DLA
2 Plaintiff and, together with LLP II, and HCC Holdings, Lennar-Bridges Cross-Plaintiff), individually and derivatively
on behalf of HCC Investors, LLC (HCC) and Lennar Bridges, LLC (Lennar Bridges) allege as follows:1
1
On May 24, 2010, the Lennar Entities and Mr. Marsch entered into a Stipulation to extend the time within which to file this
complaint for 120 days, terminable on 14 days notice by Mr. Marsch. As of the filing of this Complaint, the proposed court order
submitted with the stipulation has not been signed or entered on the docket. Therefore, the Lennar Entities file this complaint, in an
abundance of caution, to protect its rights, and to avoid any claim of waiver. If the Court grants the stipulation and proposed order,
Lennar will coordinate with Mr. Marsch and the Court to determine the appropriate course of action to be consistent with the intent
and language of the stipulation.
JURISDICTION AND VENUE

1. On or about February 25, 2010 (the Petition Date) Nicolas Marsch III (Marsch or the Debtor) filed a voluntary
petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code) in the United States
Bankruptcy Court for the Southern District of California (the Bankruptcy Court).
2. This is an adversary proceeding arising under the Bankruptcy Code to establish that the claims against the Debtor in the
DLA1 Action, DLA2 Action, Bridges Action and Florida Action (each as defined below) are not dischargeable debts
pursuant to Bankruptcy Code 523(a)(2)(A), 523(a)(4), 523(a)(6), and 523(a)(19).
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3. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. 1334.
4. This matter constitutes a core proceeding pursuant to 28 U.S.C. 157(b)(2)(I).
5. Venue is proper in this district pursuant to 28 U.S.C. 1409(a).
THE PARTIES
6. Plaintiff Lennar Corporation is a Delaware corporation.
7. Plaintiff Lennar Homes of California, Inc. is a California corporation.
8. Plaintiff Lennar Land Partners II is a Florida general partnership.
9. Plaintiff LLP II HCC Holdings, LLC is a Delaware limited liability company.
10. Plaintiff Lennar San Jose Holdings is a California corporation.
11. Plaintiff HCC Investors, LLC is a Delaware limited liability company.
12. Plaintiff Lennar Bridges is a California limited liability company.
13. Plaintiffs are informed and believes and thereon allege that defendant Nicolas Marsch III is a San Diego, California
resident, and is the debtor in the chapter 11 case entitled In re Nicolas Marsch III, Case No. 10-02939-PB11 (the
Bankruptcy Case).
GENERAL ALLEGATIONS
I. FACTUAL ALLEGATIONS -DLA 1 ACTION
14. In January 28, 2008 Lennar-DLA 1 Plaintiff filed a lawsuit--Lennar Homes of California, Inc. v. DLA Piper US LLP, et
al., San Diego Superior Court Case No. 37-2008-00076811-CU-PN-CTL (the DLA1 Action)--against DLA Piper US LLP
(DLA Piper), Brian Foster (Foster), and Marsch in state court in San Diego County, California. (A true and correct copy
of Lennar-DLA 1 Plaintiffs complaint in the DLA1 Action is attached hereto as Exhibit 1 and incorporated herein by this
reference.) DLA Piper and Foster owed Lennar-DLA 1 Plaintiff the unflagging obligations to represent Lennar-DLA 1
Plaintiff zealously with the utmost loyalty and the full protections of all professional and ethical duties mandated by law.
DLA Piper and Foster failed to discharge these obligations by placing the interests of their client Marsch above Lennar-DLA
1 Plaintiffs interests and engaging in actions to benefit Marsch to Lennar-DLA 1 Plaintiffs detriment. As a consequence,
Lennar-DLA 1 Plaintiff has lost millions of dollars.
15. Marsch brought to Lennar-DLA 1 Plaintiffs attention a property known as McCrink Ranch in San Diego County,
California. Marsch sought to induce Lennar-DLA 1 Plaintiff to acquire the property, but the owners of the property instead
entered into an exclusive negotiating agreement with another purchaser, Davidson Homebuilders, LLC (Davidson).
16. Thereafter, the McCrink Ranch owners determined that Davidson would not be able to develop the property on its own.
As a result, they asked Davidson and Lennar-DLA 1 Plaintiff to consider making a joint purchase offer. Davidson and
Lennar-DLA 1 Plaintiff agreed to discuss the matter but, after several more weeks, their negotiations reached an impasse. A
joint offer appeared unlikely.
17. Unbeknownst to Lennar-DLA 1 Plaintiff, Marsch intended to obtain a 50% interest in McCrink Ranch--a project
exceeding $100 million to acquire and develop--without investing any money of his own, and to induce Lennar-DLA 1
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Plaintiff to pay 100% of the cost of acquiring and developing the property. To accomplish these objectives, Marsch turned to
his friend and lawyer, Foster.
18. In addition, Marsch enlisted the services of a lawyer named Michael Riney (Riney) to assist DLA Piper and Foster in
advising Lennar-DLA 1 Plaintiff regarding McCrink Ranch. Although Foster proceeded to work with Riney in representing
Lennar-DLA 1 Plaintiff regarding McCrink, Foster never disclosed this fact to Lennar-DLA 1 Plaintiff. Nor did Riney. Nor
did Marsch.
19. With the assistance of Riney and Marsch, Foster provided legal advice to Lennar-DLA 1 Plaintiff that was designed to
further Marschs personal interests. For example, Foster advised Lennar-DLA 1 Plaintiff to terminate its relationship with
Davidson, file suit against Davidson, and acquire the McCrink property exclusive of Davidson. This advice was given to
advance Marschs objectives that Lennar-DLA 1 Plaintiff disassociate Davidson from the McCrink transaction, acquire the
property on its own, pay for the property with all of its own money, and take title to the property in the name of HCC
Investors LLC, an entity in which Marsch had an ownership interest. In this manner, Marsch sought to position and enable
himself to assert an ownership interest in McCrink Ranch. Marschs objectives were known to Foster, but he willfully failed
to disclose them to Lennar-DLA 1 Plaintiff. Furthermore, DLA Piper and Foster actively sought to conceal their actions on
Marschs behalf by omitting from their legal bills to Lennar-DLA 1 Plaintiff any reference to Fosters secret dealings with
Riney.
20. In representing Lennar-DLA 1 Plaintiff, Foster led Lennar-DLA 1 Plaintiff to believe that his advice and actions were
based on the discharge of his professional duties as a lawyer whose sole allegiance was to Lennar-DLA 1 Plaintiff and whose
sole duty was to protect and serve the interests of Lennar-DLA 1 Plaintiff. These representations were false, because Fosters
advice and actions--purportedly on Lennar-DLA 1 Plaintiffs behalf--were, in fact, intended to carry out the undisclosed
objectives of Marsch. Under the common law, California Business and Professions Code section 6068, and California Rule of
Professional Conduct 3-310(C), Foster and DLA Piper owed a duty of undivided loyalty to Lennar-DLA 1 Plaintiff, which
they breached by undertaking the concurrent and conflicting representation of Marsch without disclosure to or consent by
Lennar-DLA 1 Plaintiff. In violation of his duty of loyalty and fiduciary obligations to Lennar-DLA 1 Plaintiff, Foster
concealed from Lennar-DLA 1 Plaintiff his support of Marschs objectives and interests, including his secret collaboration
with Riney. Lennar-DLA 1 Plaintiff did not discover the material facts giving rise to any of the causes of action alleged in
DLA1 Action until less than one year before the filing of DLA1 Action.
21. As a result of the foregoing and other conduct alleged herein, Lennar-DLA 1 Plaintiff was induced to purchase the
McCrink Ranch property without knowledge that Marsch intended to assert a 50% ownership interest therein. Foster and
DLA Piper possessed such knowledge, but concealed it from Lennar-DLA 1 Plaintiff. Thereafter, Marsch filed suit against
Lennar-DLA 1 Plaintiff claiming that Lennar-DLA 1 Plaintiff violated his alleged partnership interest in McCrink and
seeking substantial damages. That case is entitled Briarwood Capital, LLC v. Lennar-DLA 1 Plaintiff Land Partners II, et al.,
Case No. GIC 875457 (the McCrink Action). The Honorable William J. Nevitt, Jr., dismissed the case with prejudice and
the dismissal is currently under appeal.
II. FACTUAL ALLEGATIONS - DLA 2 ACTION

22. On or about September 30, 2008, Lennar-DLA 2 Plaintiff filed the lawsuit, Lennar Homes of California, Inc., et al. v.
DLA Piper US LLP, et al., Case No. 37-2008-00092842-CU-PN-CTL, (the DLA2 Action), against Marsch and others in
the San Diego Superior Court. Lennar-DLA 2 Plaintiff asserts that Marsch conspired with attorneys from DLA Piper to
breach their fiduciary duties to Lennar-DLA 2 Plaintiff with respect to the HCC Investors joint venture and the Bridges
project. (A true and correct copy of Lennar-DLA 2 Plaintiffs operative complaint in DLA2 Action (the DLA2 Complaint)
is attached hereto as Exhibit 2 and incorporated herein by this reference)
23. The DLA2 Action alleges that Marsch aided and abetted DLA and Mr. Fosters breaches of their fiduciary and
professional duties to Lennar-DLA 2 Plaintiff entities in a manner that was willful, oppressive, and malicious. (Ex. A,
136 (Seventh Cause of Action, DLA2).). It further allege that Marsch interfered with Lennar-DLA 2 Plaintiff entities
contractual and business relationships in a manner that was willful, oppressive, and malicious. (Id., 141 (Eighth Cause of
Action, DLA2).)
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24. The DLA 2 Action seeks damages and disgorgement of legal fees from DLA and its partner Brian Foster for malpractice,
fraud, and breaches of their duties of trust and loyalty owed to Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges.
Throughout their representation of Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges, Foster and DLA repeatedly breached
their professional duties to benefit Fosters personal friend and longtime client, Marsch, to the detriment of Lennar-DLA 2
Plaintiff, HCC, and Lennar Bridges. DLA and Foster owed Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges the unflagging
obligation to represent such clients zealously with the utmost loyalty and the protection of all professional and ethical duties
mandated by law. Foster and DLA failed to discharge their duties to Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges by,
without limitation, undertaking the concurrent and conflicting representation of Marsch without disclosure to or consent by
Lennar-DLA 2 Plaintiff or HCC in order to advance Marschs individual interests.
25. In representing Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges, Foster led his clients to believe that his advice and
actions were based on the discharge of his professional duties as a lawyer whose sole allegiance was to Lennar-DLA 2
Plaintiff, HCC, and Lennar Bridges and whose duty was to protect and serve the interests of Lennar-DLA 2 Plaintiff, HCC,
and Lennar Bridges. These representations were false, because Fosters advice and actions-- purportedly on Lennar-DLA 2
Plaintiffs and HCCs behalf--were, in fact, intended to advance and did advance the undisclosed objectives of Marsch.
THE BRIDGES
26. Prior to the formation of HCC in 1997, Marsch was a partner with Ronald Williams (Williams) in a partnership known
as Horizon Properties. Marsch and Williams entered into the partnership to develop real property in Rancho Santa Fe,
California, which later became known as the Bridges property.
27. The relationship between Marsch and Williams ended in protracted litigation. Thereafter, Marsch sought and obtained
funds from Lennar-DLA 2 Plaintiff to finance his ongoing litigation against Williams.
28. In April 1997, Marsch obtained a judgment against Williams (the La Jolla Judgment). Williams declared bankruptcy,
and the Bridges property became part of the Williams bankruptcy estate.
29. On or about June 17, 1997, Marsch and LSJH entered into an Amended and Restated Formation Agreement (the HCC
Formation Agreement). On or about August 27, 1997, Marsch and LSJH entered into the Limited Liability Company
Agreement of HCC Investors, LLC (the HCC Operating Agreement). Among other things, the HCC Operating Agreement
generally provides that profits (if any) are to be distributed to HCCs members only after Lennar-DLA 2 Plaintiff receives its
invested capital and a preferred return.
30. On or about January 28, 1998, HCC entered into a Purchase and Sale Agreement with Williams and one of his affiliates
pursuant to which HCC purchased the Bridges property for $52 million.
31. In November 1998, with Marschs knowledge and support, LSJH and Lennar Southland I, Inc. (Lennar Southland)
formed Lennar Bridges to acquire and develop real property adjacent to the Bridges property known as the Santa Fe Creek
property. On or about November 19, 1998, Lennar Bridges purchased the Santa Fe Creek property for $10 million. The
properties developed by HCC and Lennar Bridges are now commonly known collectively as the The Bridges at Rancho
Santa Fe or The Bridges.
32. On or about July 29, 1999, Lennar Southland and LSJH assigned their entire interests in HCC and Lennar Bridges to LLP
II and LLP IIs wholly-owned subsidiary LL Partners, Inc. (LL Partners).
33. Foster and DLAs predecessor-in-interest Gray Cary Ware & Freidenrich LLP began representing HCC in 1997 in
connection with the Williams estates bankruptcy. Thereafter, on Marschs recommendation, LSJH engaged Foster and
DLAs predecessor-in-interest to be HCCs primary outside counsel.
34. On or about July 7, 1999, Lennar Homes replaced LSJH as Project Manager of HCC and Lennar Bridges. On or about
July 29, 1999 LLP II and LL Partners became members of HCC and succeeded to the rights of LSJH and Lennar Southland
81
as members of HCC.
35. In representing HCC, Foster and DLA undertook to represent and did jointly represent Lennar-DLA 2 Plaintiff and
Marsch together with HCC. Foster and DLA conducted this joint representation from at least 1997 through at least 2007. In
the course of such representation Foster and DLA did in fact advise LSJH, Lennar Southland, LLP II, LL Partners, Lennar
Homes, HCC and Lennar Bridges on matters related to HCC, the Bridges and Lennar Bridges.
36. Foster and DLAs representation of Lennar-DLA 2 Plaintiff, HCC and Lennar Bridges continued through at least October
2, 2007, when Foster and DLA purported to withdraw from representing Lennar-DLA 2 Plaintiff in all matters except
situations where Lennar is a constituent member of another entity which the Firm may represent, such as a partnership or
limited liability company. At all material times, Foster owed fiduciary duties to HCC, Lennar Bridges, and Lennar-DLA 2
Plaintiff.
MISREPRESENTATION REGARDING PRIOR INVESTORS FUND

37. On or about January 27, 1998, Marsch and LSJH executed an amendment to the HCC Formation Agreement (the First
Formation Agreement Amendment) under which Marsch assumed liability for certain obligations in exchange for LSJHs
agreement to make a $6 million fund available to Marsch to repay certain preexisting obligations (the Prior Investors
Fund). Among other things, the First Formation Agreement Amendment provided that amounts not drawn on that fund
would be adjusted upward each month at a monthly rate equal to the monthly rate of interest paid on 1-year U.S. Treasury
bills on the last day of such month.
38. Despite the express language of the First Formation Agreement Amendment, in 1999 and 2000 Foster advised and
represented to HCC and Lennar-DLA 2 Plaintiff that Marsch was entitled under the operative agreements to earn a 25%
preferential rate of return on amounts not drawn on that fund. For example, in an August 2, 1999 letter to Brian Bilzin,
another attorney representing Lennar-DLA 2 Plaintiff, Foster claimed that Section 3.01(b) of the operating agreement
provides that Nick [Marsch] will accrue a preference on that portion of the [Prior Investors Fund] that he has not drawn
upon.
39. Fosters representations were false, without any reasonable basis, and contrary to the provisions of the HCC Operating
Agreement, the HCC Formation Agreement, and the First Formation Agreement. At no time did Foster advise HCC or
Lennar-DLA 2 Plaintiff that Marsch had no right under the applicable agreements to a 25% preferential rate of return with
respect to the Prior Investors Fund.
40. Fosters advice and representations to HCC and Lennar-DLA 2 Plaintiff concerning the Prior Investors Fund were
intended to advance Marschs interests over those of HCC and Lennar-DLA 2 Plaintiff by inflating the amounts payable to
Marsch under operative provisions by millions of dollars. As a result of Fosters conflicted advice and representations, as
well as Marschs false representations regarding amounts required to satisfy prior obligations, HCC and LLP II agreed in
2001 to increase the amount of funds available to Marsch by $1.5 million to $7.5 million.
41. Under the common law, California Business and Professions Code section 6068, and the California Rules of Professional
Conduct, Foster and DLA owed duties to HCC and Lennar-DLA 2 Plaintiff, including but not limited to the duties of
competency, loyalty, communication and candor. Fosters advice and representations to HCC and Lennar-DLA 2 Plaintiff
regarding the Prior Investors Fund were a violation of his and DLAs fiduciary duties to HCC and Lennar-DLA 2 Plaintiff, as
well as their duties of loyalty, competence, and candor. Foster and DLA also breached such duties by undertaking the
concurrent and conflicting representation of Marsch without full disclosure to or consent by HCC or Lennar-DLA 2 Plaintiff.
LA JOLLA JUDGMENT AND OVERRIDE FEES

42. Section 6.05(b) of the HCC Operating Agreement provided that HCC would pay an override fee equal to 3.5% of
HCCs gross revenue to both Marsch and Lennar-DLA 2 Plaintiff. On or about January 27, 1998, Marsch and Lennar-DLA 2
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Plaintiff executed an amendment to the HCC Operating Agreement (the First Operating Agreement Amendment). Under
that amendment, Marsch and Lennar-DLA 2 Plaintiff agreed that HCC would begin paying override fees only after
Lennar-DLA 2 Plaintiff has earned an internal rate of return on its Capital Contributions equal to 25%....
43. In June 1999, HCC received $37.5 million in proceeds from the payment of the La Jolla Judgment, which had been
assigned to HCC. HCC, in accordance with the provisions of the HCC Operating and Formation Agreements, distributed
those proceeds to Lennar-DLA 2 Plaintiff to return a portion of Lennar-DLA 2 Plaintiffs invested capital and return on that
capital.
44. Although the proceeds from the La Jolla Judgment returned part of Lennar-DLA 2 Plaintiffs invested capital, at no time
in 1999 or thereafter did Lennar-DLA 2 Plaintiff receive its invested capital or an internal rate of return on its Capital
Contributions equal to 25% as required under the First Operating Agreement Amendment to trigger payment of override
fees.
45. In 1999 Foster knew or should have known that Lennar-DLA 2 Plaintiff had not received its invested capital in HCC plus
a 25% internal rate of return and that override fees were not payable under the First Operating Agreement Amendment.
Nevertheless, Foster advised that HCC and Lennar-DLA 2 Plaintiff commence payment of the override fees to Marsch,
representing that the fees appeared payable under the applicable amendment and equitably should be paid in any event. In
reliance on Fosters advice and representations, HCC began paying override fees to Marsch beginning in 1999. From 1999
through 2008, HCC paid Marsch in excess of $13 million in override fees.
46. Fosters advice was false and without any reasonable basis. HCC and Lennar-DLA 2 Plaintiff in fact were under no
obligation to begin paying override fees under the terms of the First Operating Agreement Amendment because the
conditions for payment of override fees had not been met. To this date, the obligation to pay override fees has not been
triggered under the terms of the First Operating Agreement Amendment.
47. Despite having received more than $13 million in override fees, Marsch now asserts that HCC and Lennar-DLA 2
Plaintiff were not authorized or entitled to distribute the proceeds from the La Jolla Judgment to Lennar-DLA 2 Plaintiff and
claims that the accounting treatment of the proceeds was improper. Foster and DLA knew or should have known that Marsch
intended to dispute the propriety of the distribution and accounting of the proceeds.
48. Under the common law, California Business and Professions Code section 6068, and the California Rules of Professional
Conduct, Foster and DLA Piper owed duties to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff including but not limited
to the duties of competency, loyalty, communication and candor. Had HCC, Lennar Bridges or Lennar-DLA 2 Plaintiff
known or been advised that Marsch intended to challenge, or retained the ability to challenge, distribution of the La Jolla
Judgment proceeds to Lennar-DLA 2 Plaintiff or the accounting for those proceeds, Lennar-DLA 2 Plaintiff, HCC, and
Lennar Bridges would not have agreed to pay override fees to Marsch. Foster and DLA failed to advise Lennar-DLA 2
Plaintiff, HCC, and Lennar Bridges of Marschs intent and alleged ability to challenge the accounting and distribution, failed
to advise Lennar-DLA 2 Plaintiff or HCC of the risk that Marsch might dispute the distribution of the judgment proceeds to
Lennar-DLA 2 Plaintiff or the accounting for those proceeds, and failed to protect HCC, Lennar Bridges, and Lennar-DLA 2
Plaintiff against such intentions and actions by Marsch.
FOSTER MANUFACTURES ACCOUNTING PROBLEMS

49. At various times, Foster and DLA advised and represented to Lennar-DLA 2 Plaintiff that certain financial information
reported by HCC was inaccurate and unreliable. Fosters advice and representations were false, without any reasonable basis,
and made solely to advance Marschs interests.
50. Foster and DLA sought both to induce Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges into erroneously increasing
HCCs payments to Marsch to Lennar-DLA 2 Plaintiffs detriment and position Marsch to erroneously claim greater
payments than required under the applicable agreements.
51. In undertaking to advance Marschs personal interests to the detriment of HCC, Lennar Bridges, and Lennar-DLA 2
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Plaintiff, Foster and DLA owed a duty of undivided loyalty to Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges that they
breached by falsely and unreasonably advising HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff about alleged inaccuracies
in their financial reports and accountings for the Bridges.
LENNAR BRIDGES
52. At various times after the acquisition of the Santa Fe Creek property by Lennar Bridges, Foster advised HCC, Lennar
Bridges, and Lennar-DLA 2 Plaintiff concerning Lennar Bridges and the development of the Santa Fe Creek property.
However, Foster did not fully or adequately advise Lennar-DLA 2 Plaintiff or HCC of the risks of acquiring and developing
the Santa Fe Creek property without clarifying and documenting Marschs purported interest in Lennar Bridges.
53. Instead, Foster advised and repeatedly represented to LLP II, LL Partners and Lennar Homes that if and when Marsch (or
his wholly-owned company, Briarwood Capital, LLC) were to be admitted as a member of Lennar Bridges, such admission
would be on the same terms as existing agreements governing HCC. For example, in an August 2, 1999 letter to Bilzin and to
Marsch, Foster advised that There are a few items Nick would like to address that fall under the category of clean-up, as
follows:... We should prepare an operating agreement for the Santa Fe Creek parcel that parallels the HCC agreement... One
month later, on September 9, 1999, Foster advised Bilzin and Marsch that [y]ou suggested that we prepare an operating
agreement for the Santa Fe Creek parcel that parallels the HCC agreement.... We will prepare an agreement which parallels
the HCC agreement to the extent possible. On July 28, 2004, Foster sent an email to personnel acting on behalf of LLP II,
LL Partners and Lennar Homes (including Gary Agatstein, Graham Jones, Mark Shea, Susy Chu and Ron George) and to
Marsch that described Marschs economic interest in Lennar Bridges as identical to Marschs interest in HCC. On August
1, 2005, Foster forwarded an email memorandum to Jones and Trudie Wilson summarizing a proposed merger between HCC
and Lennar Bridges that stated: In both HCC and Bridges, Lennar and Marsch each hold a 50% profits interest. These profits
are distributed after Lennar receives a return of its capital and a preferred return. In a February 28, 2006 memorandum to
Jones, Mike Levesque and to Marsch, Foster stated that Nick [Marsch] has always been entitled to own an interest in Lennar
Bridges identical to his interest in HCC.
54. The HCC Operating Agreement provides, among other things, that profit distributions will be made to Marsch only after
Lennar-DLA 2 Plaintiff has obtained a return of its invested capital and a 25% return on that capital. Since the formation of
Lennar Bridges in 1998, LLP II and LL Partners have invested more than $35 million to acquire and develop the Santa Fe
Creek property. Marsch has never made any capital or other contributions to Lennar Bridges.
55. From its inception through 2006, Marsch was not a member in Lennar Bridges. In 2006, Foster advised LLP II, LL
Partners and Lennar Homes to execute a purported Membership Admission Agreement for Lennar Bridges (the Admission
Agreement) admitting Briarwood as a member of Lennar Bridges.
56. Foster advised LLP II, LL Partners and Lennar Homes that it was in their interests to execute the Admission Agreement
and that the parties could and would thereafter document an operating agreement to memorialize that their respective
economic interests in Lennar Bridges would be the same as their interests in HCC.
57. In providing this advice, Foster and DLA knew, but did not disclose to Lennar-DLA 2 Plaintiff, including LLP II, LL
Partners and Lennar Homes, that Marsch would refuse to execute an operating agreement for Lennar Bridges on the same
terms as the HCC Operating Agreement, including terms providing for distributions of profits from Lennar Bridges to
Marsch only after a return of Lennar-DLA 2 Plaintiffs invested capital and a 25% return on that capital. Foster and DLA also
knew that Marsch intended to assert a 50% membership interest in Lennar Bridges without contribution of any capital and
without acknowledging Lennar-DLA 2 Plaintiffs entitlement to a 25% preferred return on invested capital.
58. In June 2006, in reliance on advice and representations by Foster, LLP II, LL Partners and Lennar Homes signed the
Admission Agreement. The Admission Agreement does not identify Marschs economic interest in Lennar Bridges or the
material terms of his admission. Although the Admission Agreement expressly recited the parties agreement to enter into an
operating agreement for Lennar Bridges, Marsch has failed and refused to do so. At the time LLP II, LL Partners and Lennar
Homes signed the Admission Agreement, Foster knew but did not disclose that Marsch did not intend to comply with that
condition, but intended to assert a 50% membership interest while claiming Lennar-DLA 2 Plaintiff was not entitled to a 25%
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preferred return on its invested capital.

59. In representing LLP II, LL Partners and Lennar Homes, Foster led LLP II, LL Partners and Lennar Homes to believe that
his advice and actions were based on the discharge of his professional duties as a lawyer, including his duty to protect and
serve the interests of Lennar-DLA 2 Plaintiff. These representations were false, because Fosters advice was, in fact, intended
to benefit Marsch at Lennar-DLA 2 Plaintiffs expense. Foster and DLA Piper breached their duties by advising LLP II, LL
Partners and Lennar Homes to enter into a transaction that benefited and was intended to benefit Marsch to Lennar-DLA 2
Plaintiffs detriment, and by undertaking the concurrent and conflicting representation of Marsch without full disclosure to or
informed consent by Lennar-DLA 2 Plaintiff, including LLP II, LL Partners or Lennar Homes.
TOLLING AGREEMENTS
60. In 2002 and 2005, Foster, at the direction of and on behalf of Marsch, requested that LLP II and LL Partners, among
others, enter into two tolling agreements (the Tolling Agreements).
61. The 2002 tolling agreement purported to toll the statute of limitations for claims regarding potential financial accounting
disputes... between the Parties with regard to the development of [The Bridges] and the operation of HCC.... The term of the
agreement was purported to be through August 2006.
62. Foster represented to Lennar-DLA 2 Plaintiff in a July 18, 2002 email that the 2002 tolling agreement would preserve
the status quo between Marsch and Lennar-DLA 2 Plaintiff. That statement was false. The 2002 tolling agreement was one
way, purporting only to preserve Marschs claims against Lennar-DLA 2 Plaintiff and not any claims by Lennar-DLA 2
Plaintiff against Marsch.
63. In December 2005, while the 2002 tolling agreement was still in effect, Foster presented to LLP II and LL Partners a
purported Renewed Statute of Limitations Tolling Agreement to extend the statute of limitations to December 31, 2006.
Foster advised his clients LLP II and LL Partners that the agreement was in the best interests of both LLC Members, that
the agreement was just a loose end that needed cleaning up, that the agreement was virtually identical to the 2002
tolling agreement, and that it was designed merely to preserve the status quo. For example, in a December 21, 2005 email
to personnel acting on behalf of LLP II, LL Partners and Lennar Homes (including Jon Jaffe and Mike Levesque) and
Marsch, Foster wrote: I would recommend that the LLC members execute the renewal agreement.... The form of the renewal
agreement that I have attached is virtually identical to the 2002 agreement, as it is designed to merely preserve the status quo.
As before, it would preserve all parties rights, claims and defenses relating to the subject matter of HCC finances and
accounting. This seems to be in the best interests of both LLC members
64. Fosters statements were false. The 2005 tolling agreement was not virtually identical to the 2002 tolling agreement
that had been signed four years earlier, it was not designed merely to preserve the status quo, and it was not in the best
interests of LLP II, LL Partners, or Lennar Homes. The 2005 tolling agreement was also one way, purporting only to
preserve Marschs claims against Lennar-DLA 2 Plaintiff and not any claims by Lennar-DLA 2 Plaintiff against Marsch. The
two agreements also differed in material ways, including:
The 2005 tolling agreement added a new party, Lennar Southland, which was not a party to the 2002 agreement.
Although the 2002 tolling agreement contained no mention of Lennar Bridges, the 2005 tolling agreement injected a new
recital, stating: On or about November 12, 1998, Lennar San Jose Holdings and Lennar Southland entered into that certain
Limited Liability Company Agreement of Lennar Bridges, LLC, to acquire a parcel of land adjacent to the Project for
development and incorporation into the Project. The Parties agree that Marsch is entitled to own a 50% interest in Lennar
Bridges, LLC and documentation is currently being prepared to memorialize Marschs interests.
65. In addition, Foster failed to disclose material facts about the purported Admission Agreement and the admission of
Marsch as a member of Lennar Bridges, including that Marsch intended to assert a 50% membership interest without
agreeing to an operating agreement for Lennar Bridges that provided for a return of Lennar-DLA 2 Plaintiffs contributed
capital and a 25% return on that capital before profit distributions to the members.
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66. Foster and DLA also knew or should have known that, unbeknownst to Lennar-DLA 2 Plaintiff, Marsch intended to
claim that HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff had failed to comply with the HCC Operating and Formation
Agreements by, among other things, purportedly failing to issue operating deficit notices and by retaining companies
affiliated with Lennar-DLA 2 Plaintiff to perform services for the Bridges. Foster and DLA failed to disclose Marschs
intentions to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff and failed to advise Lennar-DLA 2 Plaintiff, Lennar Bridges
or HCC of Marschs intent or ability to assert such claims or to protect themselves from such claims. Foster and DLA also
failed to disclose that Marsch intended to assert mismanagement claims against Lennar-DLA 2 Plaintiff, including decisions
to build homes at the Bridges and that Marsch intended to claim that all capital contributions made by Lennar-DLA 2
Plaintiff to HCC and Lennar Bridges from 1998 through the present were in violation of the HCC Operating and Formation
Agreements.
67. Foster and DLA prepared the 2005 tolling agreement at Marschs direction to benefit Marsch to Lennar-DLA 2 Plaintiffs
detriment. Under the common law, California Business and Professions Code section 6068, and the California Rules of
Professional Conduct, Foster and DLA Piper owed duties to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff including but
not limited to the duties of competency, loyalty, communication and candor. Fosters advice that executing the 2005 tolling
agreement was the best interests of LLP II or LL Partners and his false representations including that the agreement was
virtually identical to the 2002 agreement were breaches of Fosters fiduciary and professional duties to Lennar-DLA 2
Plaintiff, HCC, and Lennar Bridges.
JUDGMENTS AGAINST MARSCH

68. At the direction of and for the benefit of Marsch, Foster and DLA advised HCC and Lennar-DLA 2 Plaintiff that HCC
was required to pay over $15 million to satisfy two of Marschs personal obligations to Williams.
69. Prior to the formation of HCC, Marsch was a 50 percent partner with Williams in a partnership known as Horizon
Properties. As a result of litigation between Marsch and Williams, on June 18, 1992 an arbitration panel ordered the
dissolution of the Horizon Properties partnership and placed the partnership into receivership.
70. The panel also ordered Marsch to pay $888,190 to the partnership in satisfaction of an outstanding obligation. In 1994,
the arbitration award was confirmed as a judgment, and on June 23, 1999 the receiver for the Horizon Properties partnership
assigned that judgment, which had grown with interest to $1,641,326, to Williams (the Arbitration Judgment).
71. The receiver for the Horizon Properties partnership issued a final accounting of the dissolved partnership on June 19,
2000. In that final accounting, the receiver determined that the dissolved partnerships liabilities exceeded assets by
$26,987,369 and ordered that Marsch pay one-half of that shortfall. On February 2, 2001, the Hon. Lisa Guy-Schall of the
San Diego County Superior Court approved an assignment of Marschs obligation to Williams and ordered that Nicolas
Marsch, III owes and shall pay $13,568,121 to Williams (the Contribution Judgment).
72. Both the Arbitration Judgment and the Contribution Judgment (collectively, the Marsch Judgments) were obligations of
Marsch, not HCC or Lennar-DLA 2 Plaintiff. However, Foster advised and represented to HCC and Lennar-DLA 2 Plaintiff
that HCCs governing documents required HCC to pay and/or indemnify Marsch for the Marsch Judgments. HCC, funded by
LLP II and LL Partners, paid millions of dollars to satisfy those obligations in reliance on Fosters advice and his
representations that HCC was required to pay those judgments on Marschs behalf.
73. On April 13, 2000, in reliance on advice and representations by Foster, HCC transferred $1.5 million to an account
controlled by DLAs predecessor to be used to satisfy the Arbitration Judgment.
74. By the end of 2003, the Contribution Judgment had grown, with accrued interest, to over $17 million. On January 15,
2004, in reliance on advice and representations of Foster, HCC and Lennar-DLA 2 Plaintiff entered into a settlement
agreement with Williams (the Williams Settlement) by which HCC agreed to pay $13 million to satisfy the Contribution
Judgment, as well as a contingent interest Williams retained in certain distributions from exploitation of the Bridges property.
Lennar Corporation and LNR Property Corporation, each of which owned interests in LLP II, agreed to and did guarantee
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HCCs obligation to pay this amount.

75. The HCC Formation Agreement and the HCC Operating Agreement did not require that HCC pay the Arbitration
Judgment or the Contribution Judgment or otherwise indemnify Marsch for such obligations. Despite his fiduciary duties to
HCC and Lennar-DLA 2 Plaintiff, at no time did Foster advise HCC or Lennar-DLA 2 Plaintiff that the HCC Formation and
Operating Agreements did not require HCC to pay the Marsch Judgments. Instead, Foster advised HCC, LLP II, LL Partners
and Lennar Homes that it was HCCs obligation to pay those judgments against Marsch. Fosters advice was false, without
any reasonable basis, and intended solely to benefit and did benefit Marsch to HCCs detriment. Absent Fosters advice and
representations, HCC would not have paid over $15 million to satisfy Marschs obligations to Williams.
76. When Foster advised HCC and Lennar-DLA 2 Plaintiff concerning the Marsch Judgments, he did so under a disabling
conflict because his advice benefited and was intended to benefit Marsch to the detriment of HCC and Lennar-DLA 2
Plaintiff. Under the common law, California Business and Professions Code section 6068, and the California Rules of
Professional Conduct, Foster and DLA owed duties to HCC and Lennar-DLA 2 Plaintiff including but not limited to the
duties of competency, loyalty, communication and candor. Foster and DLA breached these duties by advising HCC, LLP II,
LL Partners and Lennar Homes to enter into transactions that benefited and were intended to benefit Marsch at HCC and
Lennar-DLA 2 Plaintiffs expense, and by undertaking the concurrent and conflicting representation of HCC and
Lennar-DLA 2 Plaintiff without full disclosure to or informed consent by HCC or Lennar-DLA 2 Plaintiff.
DLA AND FOSTER ASSIST MARSCH REGARDING LITIGATION AGAINST LENNAR-DLA 2 PLAINTIFF
77. Despite his fiduciary duties to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff and his duties of loyalty and candor
under the common law, California Business and Professions Code Section 6068, and the Rules of Professional Conduct, in
2005 and 2006 Foster secretly worked to assist and advise Marsch and his various litigation counsel regarding Marschs
preparation of two lawsuits against Lennar-DLA 2 Plaintiff.
78. While purporting to serve as counsel to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff, unbeknownst to any of them,
Foster provided Marsch and his litigation counsel with documents and information, corresponded with them, met with them,
and strategized with them. Foster disclosed none of these activities to HCC, Lennar Bridges or Lennar-DLA 2 Plaintiff.
79. At the time he was assisting Marsch in preparing litigation adverse to HCC, Lennar Bridges and Lennar-DLA 2 Plaintiff,
Foster repeatedly advised such clients to provide Marsch with information and documents. Foster did so to support Marschs
litigation efforts. At no time did Foster advise Lennar-DLA 2 Plaintiff, Lennar Bridges or HCC to obtain advice and counsel
to protect against litigation by Marsch.
80. In violation of his duties of loyalty and candor, at no time did Foster disclose his activities to HCC, Lennar Bridges or
Lennar-DLA 2 Plaintiff, advise them that he was providing documents, information and advice to Marsch and his litigation
counsel, or that he was assisting with Marschs preparation of claims against Lennar-DLA 2 Plaintiff. Foster and DLA
actively concealed their activities from Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges.
REFUSAL TO RETURN CLIENT FILES

81. HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff first requested a return of their client files from DLA in 2007. Foster
and DLA sought to conceal their misconduct by refusing and failing to turn over these client files. Despite various requests
and subpoenas from Lennar-DLA 2 Plaintiff, and despite their knowledge that such files are relevant to the defense and rights
of HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff in Marschs pending litigation and trial against Lennar-DLA 2
Plaintiff, DLA and Foster have to date failed to produce a complete set of the files and documents to HCC, Lennar Bridges,
and Lennar-DLA 2 Plaintiff.
82. Among other files and documents, DLA and Foster withheld email communications between Foster and Marschs
litigation counsel revealing that Foster and DLA were actively assisting Marschs litigation counsel in their preparation of
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claims against Lennar-DLA 2 Plaintiff leading to both the Bridges lawsuit and the separate McCrink lawsuit. Recently in the
course of the Bridges trial, Lennar-DLA 2 Plaintiff became aware such documents might exist and specifically demanded
their production. Only then did DLA produce certain of the documents, but not all the files and documents to which HCC,
Lennar Bridges, and Lennar-DLA 2 Plaintiff are entitled. Lennar-DLA 2 Plaintiff has been and continues to be significantly
prejudiced by the wrongful withholding of such files and documents.
83. Until June and July 2009, HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff were reasonably and justifiably unaware of
Foster and DLAs misconduct related to the Marsch Judgments, the La Jolla Judgment and override fees, manufacture of
accounting issues, the Prior Investors Fund, and advice to Marsch and his litigation counsel regarding suits against
Lennar-DLA 2 Plaintiff. Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges still do not know all the facts relevant to DLA
and Fosters representation of HCC, Lennar Bridges, Lennar-DLA 2 Plaintiff and Marsch in that Foster and DLA have
actively concealed their actions and wrongfully withheld documents and files. Foster and DLAs representation of HCC,
Lennar Bridges, and Lennar-DLA 2 Plaintiff continued for more than a decade and involved numerous matters, transactions,
facts and issues. Throughout that representation, Foster and DLA concealed and withheld material facts, files, and documents
evidencing that they were advising and representing HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff under a disabling
conflict and that their advice was intended to benefit Marsch to the detriment of HCC, Lennar Bridges, and Lennar-DLA 2
Plaintiff.
III. FACTUAL ALLEGATIONS - BRIDGES CROSS-COMPLAINT

84. Briarwood Capital, LLC (Briarwood and, together with Marsch, The Marsch Parties) filed Briarwood Capital, LLC
v. HCC Investors LLC, et al., Case No. GIC-877446 (the Bridges Action) in December 2006 in San Diego Superior Court.
In the Bridges Action, debtor Briarwood asserts that Lennar-Bridges Cross-Plaintiff has mismanaged a large real estate
project and failed to provide appropriate accountings. Briarwood asserts that it is entitled to $200 million of damages even
though it has already received more than $50 million and even though Lennar-Bridges Cross-Plaintiff funded the project on a
senior basis. Lennar-Bridges Cross-Plaintiff and HCC--a joint venture between Lennar and Briarwood--asserts substantial
counter-claims against Briarwood and Marsch, including multi-million dollar claims for Briarwoods failure to repay loans
provided to it by HCC. (A true and correct copy of Lennar-Bridges Cross-Plaintiffs cross-complaint in the Bridges Action
(the Cross-Complaint) (with exhibits) is attached hereto as Exhibit 3 and incorporated herein by this reference.).
85. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff and HCC assert that in violation of his contractual and other
duties, cross-defendant Marsch has, both personally and through two of his wholly-owned companies, diverted assets of
nominal defendant HCC to his personal use, and acted in a manner calculated to substantially diminish the value of HCC,
Lennar Bridges, and the residential and golf community known as The Bridges at Rancho Santa Fe (The Bridges). Marsch
has done so both to advance his personal and financial interests, and as part of a continuing effort to wring undeserved
financial concessions from the other members of HCC and Lennar Bridges.
86. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff seeks damages, rescission of certain agreements, and other relief
from Briarwood and its sole member and purported assignor, Marsch, based on their dishonest and deceptive conduct and
repeated breaches of contract and other duties, including breaches of fiduciary duties by Brian Foster, a partner in the law
firm DLA Piper US, LLP (successor to Gray Cary Ware & Friedenrich, LLP) (collectively, Foster) an attorney representing
HCC, Lennar Bridges, Marsch and Lennar-Bridges Cross-Plaintiff.
87. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff also brings claims derivatively on behalf of HCC to recover over
$6 million in principal and interest due and owing on loans to Briarwood, Marsch, and/or Colony Properties, LLC (Colony,
and collectively with Briarwood and Marsch, the Marsch Parties), as well as for recovery of other amounts of money and
property appropriated from HCC by The Marsch Parties, declarations of the parties respective rights under various contracts
and that the Marsch Parties are alter egos of one another, and contractual attorneys fees and expenses.
LITIGATION WITH WILLIAMS AND THE MARSCH RESTRICTIONS

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88. Prior to the formation of HCC, Marsch was a partner with an individual named Ronald Williams in a partnership known
as Horizon Properties. On information and belief, Marsch and Williams entered into the partnership to develop and market
the Horizon Property. Also on information and belief, Marsch and Williams were partners, co-joint venturers, and or
co-members in other various projects not related to The Bridges, including a venture involving commercial real estate in La
Jolla (the La Jolla Venture).
89. The relationship between Marsch and Williams fell apart and substantial and protracted litigation between the two
ensued. Because of disputes between the two partners, development of the Horizon Property effectively came to a standstill.
Needing money to fund his litigation efforts against Williams, Marsch formed a relationship with Lennar-Bridges
Cross-Plaintiff pursuant to which Lennar-Bridges Cross-Plaintiff provided funds for attorneys fees and related expenses in
exchange for receiving a one-half interest in any recovery.
90. In April 1997, Marsch obtained a judgment against Williams relating to the La Jolla Venture (the La Jolla Judgment).
Williams, in turn, obtained a judgment on cross-claims against Marsch. Williams declared bankruptcy, and the Horizon
Property became part of the Williams bankruptcy estate.
91. Marsch and LSJH formed HCC in or about June 1997 for the purpose of acquiring, developing, and marketing the
Horizon Property and its golf course, and to pursue related activities. In the Amended and Restated Formation Agreement of
HCC dated June 17, 1997 (Formation Agreement), LSJH and Marsch acknowledged that acquisition of the Horizon
Property would require substantial expenditures relating to the Williams litigation. The parties further agreed that each would
contribute its one-half interest in any recoveries from the litigation with Williams, including the La Jolla Judgment, to HCC.
92. On or about January 28, 1998, HCC entered into a Purchase and Sale Agreement with Williams and one of his affiliates
pursuant to which HCC purchased the Horizon Property for $52 million. Because of the personal enmity between Williams
and Marsch, however, Williams and the bankruptcy court required, as part of the purchase, that Marsch divest himself of any
ownership interest in HCC and any other entity having an ownership interest in the Horizon Property (the Marsch
Restrictions). The Marsch Restrictions permitted Marsch to retain only an economic relationship with LSJH. Marsch,
Williams and Lennar-Bridges Cross-Plaintiff all acknowledged the Marsch Restrictions in a stipulation filed with the
bankruptcy court on or about January 27, 1998. Pursuant to the stipulation, payments for the purchase of the Horizon
Property funded a trust to pay claims against the Williams bankruptcy estate.
93. The Marsch Restrictions were implemented through an Agreement Assigning Membership Interest (Marsch
Assignment) that was executed as of January 28, 1998. Pursuant to the assignment, Marsch assigned his entire Membership
Interest in [HCC], including his Economic Interest to Lennar Southland I, Inc. (Lennar Southland).
94. The Marsch Restrictions remained in place until on or about March 2004, when, following a settlement with Williams
estate, Marsch personally was assigned a membership interest in HCC in a document entitled Agreement Assigning
Membership Interest (Lennar to Marsch) (the Membership Reassignment).
CONDUCT RELATING TO AGREEMENT TO COMMENCE OVERRIDE FEES

95. On or about August 27, 1997, Marsch and LSJH entered into an operating agreement for HCC called the Limited
Liability Company Agreement of HCC Investors, LLC (the HCC Operating Agreement). The HCC Operating Agreement
provides at Section 6.05(b) that LSJH and Marsch would each receive an override fee equal to 3% of gross sales of all
products, including but not limited to, lots, builder participation, and memberships, excluding monthly dues, within or related
to the Project (the Override Fees).
96. In a subsequent written amendment effective January 1, 1998 (the Override Amendment), Marsch and LSJH agreed
that the Override Fees shall accumulate and not be paid to Marsch or Lennar until Lennar has earned an internal rate of
return on its Capital Contributions equal to 25%, at which time the entire accrued Override shall be paid in full.
97. In or about July 1999, HCC received approximately $37.5 million from the Williams bankruptcy estate for the La Jolla
Judgment. With Marschs knowledge and consent, HCC thereafter made a distribution in that amount to Lennar-Bridges
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Cross-Plaintiff that repaid a portion of Lennar-Bridges Cross-Plaintiffs capital contributions to HCC and agreed-upon
preference return.
98. Although Marsch was no longer a Member of HCC, he was entitled to receive certain payments pursuant to the Marsch
Assignment. Shortly after HCC received payment on the La Jolla Judgment, Marsch requested that Lennar-Bridges
Cross-Plaintiff agree to modify the Override Amendment so that HCC would start paying Override Fees even though they
were not yet payable under Section 6.05.
99. Lennar-Bridges Cross-Plaintiff agreed to the requested modification (the Override Payment Agreement), but did so in
reliance on Marschs representations regarding the parties mutual understanding that:
a. At the time of the original Formation Agreement, recoveries from litigation involving Williams, including the La Jolla
Judgment, became jointly and equally owned by LSJH and Marsch in 1995 or 1996;
b. LSJH and Marsch had each contributed its and his respective 50% interest in the La Jolla Judgment to HCC at HCCs
formation in 1997;
c. The parties had agreed at the time of contribution in 1997 that neither would receive a capital account or preference
account balance for contributing the La Jolla Judgment; and
d. In July 1999, Marsch did not object to HCC distributing the cash received from the La Jolla Judgment to partially repay
Lennar-Bridges Cross-Plaintiffs capital contributions and agreed-upon 25% return.
100. Marschs foregoing representations were false when made, and Marsch has since repudiated the foregoing
understandings. Had Marsch disclosed in 1999 that he intended to renege on the foregoing matters in whole or in part,
Lennar-Bridges Cross-Plaintiff would not have agreed to modify the timing restriction set forth in the Override Amendment.
MARSCH / BRIARWOODS MISUSE OF HCCS MONEY AND PROPERTY

101. During the course of this litigation, Lennar-Bridges Cross-Plaintiff also has discovered that The Marsch Parties misused
HCCs money and property, as described herein.
A. $7.5 Million Facility for Litigation Expenses

102. Pursuant to Section 2.1 of the Formation Agreement, LSJH agreed to provide Strategic Funding to finance HCCs
efforts to purchase the Horizon Property. In addition, Strategic Funding was to be used to fund Marschs pursuit of the
Claims against Williams, including but not limited to paying the attorneys fees and related costs incurred by Marsch.
103. Under Section 4 of the Formation Agreement, Marsch was obligated to use Strategic Funding payments only for the
specific purposes described in Section 2.1 of the Formation Agreement. Section 4.1 of the Formation Agreement provides
that, [u]nless otherwise agreed by Lennar-Bridges Cross-Plaintiff, Marsch shall use any amounts advanced as part of the
Strategic Funding pursuant to Section 2.1 only as specified in this Agreement or as specified in writing by Lennar.
104. As a further term of the Override Amendment described above, Marsch agreed to assume all liability and
responsibility for certain liabilities and obligations under Section 2.1 of the Formation Agreement. In exchange for Marsch
doing so, and based on representations from Marsch as to the anticipated value of the liabilities and obligations at issue,
Lennar-Bridges Cross-Plaintiff agreed to provide Marsch with a $6 million account from which he could pay legitimate
expenses. Marsch could draw on the $6 million until December 31, 2002. Beginning on January 1, 2000, the Override
Amendment applied an interest rate to any undrawn portion of the $6 million.
105. In or about late 1999, Marsch represented to Lennar-Bridges Cross-Plaintiff that $6 million would not be sufficient to
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satisfy the liabilities and obligations he had assumed. Based on Marschs representations, Lennar-Bridges Cross-Plaintiff
agreed in or about January 2000 to fund an additional $1.5 million to bring the account total to $7.5 million (hereinafter, the
Facility).
106. By the end of 1999, Marsch had drawn $5.54 million on the Facility. Further draws in varying amounts were made over
the ensuing years. In or about October 2006, Marsch drew down the last of the funds in the Facility.
107. On information and belief, The Marsch Parties improperly used funds from the Facility to pay personal or business
expenses not pertaining to the Claims or HCCs operations. Details about the use of the Facilitys funds are solely in The
Marsch Parties knowledge.
B. The Marsch Parties Continued Acceptance of Contractual Benefits

108. While engaged in their own breaches, The Marsch Parties freely and voluntarily reaped the monetary and other rewards
from their relationship with Lennar-Bridges Cross-Plaintiff and HCC. Through June 30, 2007, Marsch and Briarwood have
received over $16 million in payments pursuant to the HCC Operating Agreement and/or the Override Payment Agreement,
and Marsch individually has received over $6 million in tax distributions from HCC. In addition, Marsch and Briarwood
were given access to the Facility that, as described above, they used in part to pay personal or business expenses unrelated to
HCC.
109. Apart from the substantial cash payments Marsch and Briarwood have received, Marsch also has used his relationship
with Lennar-Bridges Cross-Plaintiff to obtain other benefits from HCC including, but not limited to, reimbursement of meal
and entertainment expenses, membership in the exclusive Bridges club, and marketing of his non-HCC business ventures.
110. While accepting these benefits, Marsch and Briarwood have continued to breach obligations they owed under the HCC
Operating Agreement and/or Override Payment Agreement in a manner designed to lull Lennar-Bridges Cross-Plaintiff into
continuing its funding of HCCs operations and, in turn, advancing Marsch and Briarwoods personal interests.
C. The Marsch Parties Profiting by Use of The Bridges Name and Logo
111. Lennar-Bridges Cross-Plaintiff is informed and believes, and based thereon alleges, that The Marsch Parties, by,
through, or in concert with an affiliated entity called Colony Properties International, have reaped personal gains by
promoting a vacation home rental business to members of The Bridges Club.
112. Specifically, The Marsch Parties have offered and promoted their vacation rentals on letterhead that prominently
displays the name The Bridges at Rancho Santa Fe, a watermark photograph of The Bridges clubhouse, and/or a stylized
logo with the words The Bridges at Rancho Santa Fe (the The Bridges Logo and, collectively with the other matters
described in this sentence, the Bridges Intellectual Property). The name The Bridges at Rancho Santa Fe and The Bridges
Logo have been used by HCC in commerce since 1999 to distinguish The Bridges as an exclusive residential community and
golf course, and are intellectual property owned by HCC.
113. The Marsch Parties have paid no royalties to HCC, and neither Lennar-Bridges Cross-Plaintiff nor HCC is a participant
in The Marsch Parties vacation home rental business.
ALLEGATIONS RELATING TO 1999 LOAN AND MISCONDUCT WITH RESPECT TO HOMESITES 8 AND 9
114. The Marsch Parties also have exploited their relationship with HCC for personal gain by, among other things, obtaining
and then defaulting on loans from HCC and by acquiring two homesites at The Bridges but thereafter violating covenants to
build residences thereon.
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A. 1999 Loan for Purchase of Homesites 8 and 9

115. On September 29, 1999, Marsch sent a letter on Briarwood letterhead to HCC outlining the terms with regard to
acquisition of [H]omesites 8 & 9. Legal descriptions of Homesites 8 and 9 are included as Exhibits A and B, respectively, to
the Cross-Complaint and are incorporated by reference as though included herein.
116. In the letter, Marsch set forth a purchase price for Homesite 8 of $1,050,000 and for Homesite 9 of $1,250,000. The
proposed terms also included a 3% discount on the price and a 10% down payment.
117. The balance of the purchase price, including accrued interest, was to be due in 24 months. No interest would accrue for
90 days from the close of escrow and would accrue at 9% simple interest until payment of the balance in full.
118. Marsch also pledged as security Marsch (or assignees) right to distributions from HCC Investors LLC as per section
5.02 of the HCC Investors LLC Agreement dated August 27, 1997, and as amended from time to time.
119. On October 28, 1999, Marsch and HCC executed a written letter agreement on Briarwood letterhead regarding
payment of the balance due upon close of residential [H]omesites 8 and 9 at the Bridges development. At the time of
execution of the letter agreement, contracts for the homes had been signed, deposit checks had been tendered and escrow
documents were in preparation.
120. The terms of the October 28, 1999 letter agreement incorporated the terms of Marschs proposed terms in his letter of
September 29, 1999. Specifically: the principal and accrued interest would be payable within 24 months from the close of
escrow; no interest would accrue for a ninety-day period from close of escrow and would accrue at 9% simple interest
thereafter until final payment; and Marschs (or assignees) rights to distributions from HCC would be pledged as security for
the loan balance. The parties subsequently modified and extended the date of repayment to a date within four years of the
filing of the original cross-complaint in this action. The loan evidenced in this letter agreement is hereinafter referred to as the
1999 Loan.
121. Purchase and sale agreements were entered into between HCC and Marsch regarding the purchase of Homesites 8 and 9.
Durign escrow, Marsch assigned the purchase agreements to Colony. On November 30, 1999, escrow on the purchase of
Homesites 8 and 9 closed. The purchase price for Homesite 8 was $1,018,500 and the purchase price for Homesite 9 was
$1,212,500. As of November 30, 1999, and after discounts and down payments, the balance of the 1999 Loan for the
purchase of the two homesites was $2,007,900, which loan balance was owed to the seller, HCC.
122. Although the letter was on Briarwood letterhead, the purchase and sale agreements were between HCC and Marsch, and
the 1999 Loan was used to purchase homesites that, on information and belief, are for Marschs personal use, the deeds to
Homesites 8 and 9 granted title to Colony (the Grant Deeds).
123. The Marsch Parties have failed to make any payments on the 1999 Loan, thereby harming HCC.
124. As of September 30, 2008, the principal owed on the 1999 Loan was $2,007,900 and accrued interest totaled $
1,560,055.78. Interest continues to accrue on the principal.
B. The Marsch Parties Violation of Covenants to Build Residences on Homesites 8 and 9

125. In conjunction with the 1999 Loan, The Marsch Parties executed several agreements spelling out obligations that they,
like all other homeowners within The Bridges community, were required to complete.
126. For both Homesites 8 and 9, The Marsch Parties executed an Agreement of Sale, Deposit Receipt and Escrow
Instructions (Homesite Agreement) that referenced the provisions of a Master Declaration of Covenants, Conditions and
Restrictions (Master Declaration) and an Option to Repurchase Agreement (Repurchase Agreement). In addition, the
Grant Deeds for both Homesites 8 and 9 provide that they are specifically and expressly conditioned upon [The Marsch
Parties] performance of all of the covenants and provisions of, among other things, the Master Declaration and the
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Repurchase Agreement.
127. Section 10.19 of the Master Declaration describes The Marsch Parties Construction Obligation, which requires The
Marsch Parties to commence and complete construction of a Residence and landscaping on both Homesites 8 and 9.
128. The Repurchase Agreement also sets forth several covenants with which The Marsch Parties agreed to comply and that
were intended to establish a viable and active residential environment as soon as reasonably possible. One such covenant
requires The Marsch Parties to cause both Homesites 8 and 9 to be developed with single-family residences. The Marsch
Parties covenanted further that construction of the residences would commence no later than thirty months after the date on
which the grant deeds conveying title to Homesites 8 and 9 were recorded in Official Records of San Diego County.
129. The Grant Deeds for Homesites 8 and 9 were recorded on or about November 30, 1999, but, as of this date, The Marsch
Parties have not made any effort to comply with the conditions of those deeds, including their obligations under the Master
Declaration and Repurchase Agreement. Indeed, Homesites 8 and 9 are nothing but vacant lots and undercut the perception
of The Bridges as an exclusive residential and golf community.
130. Pursuant to the Repurchase Agreements, Master Declaration and Grant Deeds, HCC has the right to repurchase
Homesites 8 and 9 for their original purchase price less HCCs costs of sale and costs to return the Homesites to their original
condition.
ALLEGATIONS RELATING TO 2003 LOAN AGREEMENT

131. On March 10, 2003, Briarwood entered into a written loan agreement with HCC (2003 Loan).
132. On March 10, 2003, Briarwood executed a written promissory note evidencing the obligations incurred under the 2003
Loan. Marsch signed the promissory note as Managing Member of Briarwood.
133. On information and belief, the proceeds of the 2003 Loan were to be used by Marsch to replace a personal line of credit.
134. Under the terms of the 2003 Loan, HCC agreed to make a revolving loan to Briarwood in a principal amount not to
exceed $2,000,000. Briarwood was allowed to draw amounts under the 2003 Loan and, as of this date, has drawn the full
amount of $2,000,000.
135. Under the terms of the 2003 Loan, amounts drawn under the 2003 Loan bear interest at a per annum rate equal to the
lesser of: (i) the floating commercial rate of interest announced by Bank of America N.A. as its reference rate plus 1%; and
(ii) 10%.
136. Under the terms of the 2003 Loan, accrued but unpaid interest is to be paid to HCC annually on each annual anniversary
of the original loan date (March 10, 2003).
137. Under the terms of the 2003 Loan, the maturity date of the 2003 Loan was to occur on the earlier of (i) the date which is
six months after the date that the obligation of Briarwood described on page 3, lines 12 through 16 of that certain Order
entered by the Superior Court of the State of California for the County of San Diego, North County Branch in Case No.
N48177 on February 2, 2001, is satisfied, reversed or otherwise extinguished; or (ii) the date which is three years after
March 10, 2003. The maturity date of the 2003 Loan was March 10, 2006.
138. All accrued and unpaid interest and unpaid principal was to be paid in full on the maturity date. As of this date, the
Marsch Parties have failed to make any payments on the 2003 Loan, thereby harming HCC.
139. As of September 30, 2008, the principal owed on the 2003 Loan was $2,000,000 and accrued interest totaled
$834,698.63. Interest continues to accrue on the principal.
140. Paragraph 4 of the 2003 Loan agreement provides that [i]f an action is commenced by a party hereto resulting from a
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dispute arising out of this agreement, the prevailing party shall be entitled to recover its reasonable attorneys fees and costs
from the other party in such action.
141. Paragraph 6 of the promissory note for the 2003 Loan provides that [i]f this Note is not paid when due, Briarwood
promises to pay all costs incurred by HCC in collecting the amount due, including all costs, reasonable attorneys fees and
expenses.
ALLEGATIONS RELATING TO LENNAR BRIDGES

142. In 1998, an opportunity arose to purchase a parcel of real property known as Santa Fe Creek that was adjacent to the
property being developed by HCC. On or about November 12, 1998, Lennar Southland and LSJH formed Lennar Bridges,
LLC to acquire and develop the Santa Fe Creek property and entered into a written operating agreement. On or about
November 19, 1998, Lennar Bridges purchased the Santa Fe Creek property. The properties developed by HCC (the Horizon
Property) and Lennar Bridges (the Santa Fe Creek property) are now commonly known collectively as the The Bridges.
143. In the 1990s, Marsch introduced Lennar-Bridges Cross-Plaintiff to his attorney, Foster. In 1998, on Marschs
recommendation, Foster was retained to represent HCC and thereafter Lennar Bridges. Foster has also represented
Lennar-Bridges Cross-Plaintiff on a number of matters over the years, and has jointly represented Lennar-Bridges
Cross-Plaintiff and Marsch. At all material times, Foster owed fiduciary duties to Lennar-Bridges Cross-Plaintiff. In breach
of those duties and unbeknownst to Lennar-Bridges Cross-Plaintiff, Foster provided advice to Lennar-Bridges Cross-Plaintiff
in connection with Lennar Bridges and HCC that was adverse to the interests of Lennar-Bridges Cross-Plaintiff and for the
benefit of Marsch. At all material times, and without disclosing the circumstances to Lennar-Bridges Cross-Plaintiff or
obtaining its waiver, Foster had a conflict of interest in representing Marschs interests adverse to Lennar-Bridges
Cross-Plaintiff. As a matter of law and fact, the improper conduct of Foster is attributable to Marsch.
144. Over the years, Lennar-Bridges Cross-Plaintiff had discussions with Marsch about becoming a member of Lennar
Bridges. At all relevant times, Marsch represented and agreed that, if and when he became a member, it would be on the
same or substantially identical terms and conditions as the HCC Operating Agreement. For example, in 1999, Marsch, acting
through Foster, represented and agreed that any interest in Lennar Bridges would be subject to the same terms as the HCC
Operating Agreement (There are a few items Nick would like to address that fall under the category of clean-up, as
follows:... We should prepare an operating agreement for the Santa Fe Creek parcel that parallels the HCC agreement...).
Also in 1999, Marsch, acting through Foster, again represented and agreed that We will prepare an agreement which
parallels the HCC agreement to the extent possible. In 2004, Marsch, again acting through Foster, represented and agreed
that Marschs economic interest in Lennar Bridges would be identical to Marschs interest in HCC. In 2005, Marsch, again
acting through Foster, represented and agreed that any admission of Marsch was subject to an agreement that profits were
only to be distributed after Lennar-Bridges Cross-Plaintiff receives a return of its capital and a preferred return. And in a
2006 memorandum to Lennar-Bridges Cross-Plaintiff and Marsch, Foster confirmed Marschs prior representations and
agreements that any interest Marsch would have in Lennar Bridges would be identical to his interest in HCC.
145. Lennar-Bridges Cross-Plaintiff has invested tens of millions of dollars in Lennar Bridges in reliance on Marschs and
Fosters assurances that, should Marsch become a member of Lennar Bridges, Lennar-Bridges Cross-Plaintiffs and Marschs
economic interests in Lennar Bridges would be governed by the terms and conditions of the HCC Operating Agreement.
Marsch has never invested any capital or made any other investment in Lennar Bridges.
146. In 2006, Marsch, with the aid and assistance of Foster, demanded that he be admitted as a member of Lennar Bridges
and that Lennar-Bridges Cross-Plaintiff execute a Membership Admission Agreement for Lennar Bridges, LLC (the
Admission Agreement) with the express understanding that the parties interests in Lennar Bridges would be governed by
the terms of the HCC Operating Agreement, and that, as a condition of the Admission Agreement, an operating agreement
would be documented to reflect those terms and conditions.
147. The foregoing representations were false when made and made with the intent to deceive and to induce reliance. When
making the foregoing representations and agreements, Marsch never intended to comply with them. Marsch has now
repudiated his representations and agreement that, should Marsch be admitted as a member, Lennar Bridges shall be
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governed by the same or substantially identical terms and conditions as the HCC Operating Agreement.
148. In actual and justifiable reliance on Marschs representation and agreement that any interest he had in Lennar Bridges
would be on the same or substantially identical terms as his interest in HCC, in June of 2006, Lennar-Bridges Cross-Plaintiff
signed the Admission Agreement. The Admission Agreement does not set forth Marschs percentage interest in Lennar
Bridges or the parties respective interests. Instead, it expressly states that [a]s soon as practicable after the execution of this
Agreement, Lennar and Briarwood shall prepare and execute an amended and restated operating agreement for the Company
for the purpose of describing their respective interests in the Company.
ALLEGATIONS RELATING TO THE TOLLING AGREEMENT

149. In 2002, Foster, at the direction of and on behalf of Marsch, advised Lennar-Bridges Cross-Plaintiff that it was in
Lennar-Bridges Cross-Plaintiffs best interests to enter into a tolling agreement that purported to toll the statute of limitations
for claims regarding potential financial accounting disputes... between the Parties with regard to the development of [The
Bridges] and the operation of HCC... The term of the agreement was purported to be through August 2006. Lennar-Bridges
Cross-Plaintiff agreed to enter into the 2002 tolling agreement in reliance on Marschs misrepresentations and
non-disclosures of material facts, including, but not limited to his and Fosters conflicts of interest with respect to Fosters
knowingly false advice and with respect to the La Jolla Judgment, as alleged more fully above in paragraphs 21-26.
150. In December 2005, Foster, at the direction of Marsch, advised Lennar-Bridges Cross-Plaintiff to sign a purported
Renewed Statute of Limitations Tolling Agreement to extend the agreement to toll the statute of limitations to December
31, 2006. Foster advised Lennar-Bridges Cross-Plaintiff that this 2005 extension was in the best interests of
Lennar-Bridges Cross-Plaintiff, that the extension was just a loose end that needed cleaning up, that the extension was
virtually identical to the 2002 tolling agreement and that it was designed merely to preserve the status quo. The 2002
tolling agreement and the 2005 extension are collectively referred to herein as the Tolling Agreement.
151. The foregoing statements were false when made and made with the intent to deceive and induce reliance. For example,
the 2002 tolling agreement was not in Lennar-Bridges Cross-Plaintiffs best interests and only tolled claims by Marsch against
Lennar-Bridges Cross-Plaintiff, not claims by Lennar-Bridges Cross-Plaintiff against Marsch. The 2005 extension was not
virtually identical to the 2002 tolling agreement, was not designed merely to preserve the status quo, and was not in
Lennar-Bridges Cross-Plaintiffs best interests. The two documents differed in a number of ways, including:
The 2005 extension added a new party -- Lennar Southland -- that was not a party to the 2002 tolling agreement.
While the 2002 tolling agreement contained no mention of Lennar Bridges, the 2005 extension injected a new recital,
stating: On or about November 12, 1998, Lennar San Jose Holdings and Lennar Southland entered into that certain Limited
Liability Company Agreement of Lennar Bridges, LLC, to acquire a parcel of land adjacent to the Project for development
and incorporation into the Project. The Parties agree that Marsch is entitled to own a 50% interest in Lennar Bridges, LLC
and documentation is currently being prepared to memorialize Marschs interests.
152. Lennar-Bridges Cross-Plaintiff actually and reasonably relied on the foregoing representations when signing the 2002
tolling agreement and 2005 extension.
DERIVATIVE AND DEMAND FUTILITY ALLEGATIONS

153. Lennar-Bridges Cross-Plaintiff brings the derivative claims set forth herein in the name and for the benefit of HCC to
redress the injuries suffered and recover the amounts owed by The Marsch Parties failure to pay amounts validly and legally
owed to HCC. Lennar-Bridges Cross-Plaintiff will adequately and fairly represent the interests of HCC in enforcing and
prosecuting its rights.
154. At all times relevant to the derivative claims asserted herein, cross-complainants Lennar San Jose or LLP II were
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members of HCC.
155. Lennar-Bridges Cross-Plaintiff has not made any demand of HCC to institute this action because such demand would be
a futile, wasteful, and useless act. Marsch currently is a member of HCCs Executive Committee with the ability to veto any
action that could be taken with regard to his and the other The Marsch Parties failure to pay amounts owing to HCC. Thus,
Marsch cannot exercise independent, objective judgment in deciding whether to bring an action or whether to vigorously
prosecute an action because Marsch and the other The Marsch Parties are interested personally in the outcome, thereby
excusing demand.
IV. FACTUAL ALLEGATIONS - FLORIDA ACTION

156. In September 2008, Lennar-Florida Plaintiff filed a lawsuit-- Lennar Corporation, a Delaware corporation, et. al. v.
Briarwood Capital, LLC, a Delaware limited liability company, et. al, Case No. 08-55740 CA 40 (the Florida
Action)-against Briarwood Capital, LLC and Mr. Marsch (collectively, the Marsch Parties) in state court in Miami-Dade
County, Florida after the Marsch Parties published a highly defamatory and extortionate letter threatening to expose
supposed crimes of Lennar-Florida Plaintiff management to the Securities and Exchange Commission if Lennar-Florida
Plaintiff did not pay them millions of dollars.
157. In January 2009, Lennar-Florida Plaintiff amended its complaint to add as Defendants Barry Minkow and the Fraud
Discovery Institute, Inc. (the Minkow Parties and, together with Marsch and Briarwood, the Defendants), after the
Minkow Parties, on behalf of the Marsh Parties, publicly and falsely accused Lennar-Florida Plaintiff and its management of
operating their joint ventures exactly like a ponzi scheme, giving its Chief Operating Officer a $5 million disguised
kickback, and being a financial crime in progress. These attacks caused Lennar-Florida Plaintiff catastrophic damage,
including nearly $400 million in shareholder value in one day, and nearly a half-billion more after successive blasts. (A true
and correct copy of Lennar-Florida Plaintiffs Fourth Amended Complaint, with exhibits, filed on February 17, 2010 (the
FAC), is attached hereto as Exhibit 4 and is incorporated herein by this reference.)
158. The Marsch Parties have threatened, extorted, and defamed Lennar-Florida Plaintiff in connection with two real estate
developments in Southern California known as the Lakes at Rancho Santa Fe and the Bridges.
159. In February 2006, Lennar-Florida Plaintiff acquired the Lakes at Rancho Santa Fe in a joint venture with a Miami,
Florida investment company called Quadrant San Diego LLC (Quadrant). The purchase price was approximately $130
million. Pursuant to Lennar-Florida Plaintiffs February 2006 agreement with Quadrant, Quadrant contributed 75% of the
original purchase price and assumed a significant portion of the project risk. In addition to contributing 25% of the original
purchase price, Lennar-Florida Plaintiff contributed significant amounts of capital for the development of the property. The
combined total purchase price and invested development capital has exceeded $200 million to date.
160. After the acquisition of the property, the Marsch Parties began a campaign of letter-writing and other misconduct
designed to force Lennar-Florida Plaintiff to pay millions of dollars to the Marsch Parties. On May 19, 2006, the Marsch
Parties sent a letter to Lennar-Florida Plaintiffs counsel in Miami, Florida threatening to tie up and place a cloud on the title
of the Lakes at Rancho Santa Fe unless Lennar-Florida Plaintiff paid them money. (A copy of the May 19, 2006 letter is
attached to the FAC as Exhibit A.)
161. After Lennar-Florida Plaintiff did not accede to the Marsch Parties extortionate demands, the Marsch Parties threatened
to wrongfully interfere and did wrongfully interfere with Lennar-Florida Plaintiffs business and contractual relationship with
Quadrant. On June 13, 2006, the Marsch Parties sent a letter to Quadrant in Florida intended to disrupt and interfere with
Lennar-Florida Plaintiffs business relationship with Quadrant. (A copy of the June 13, 2006 letter is attached to the FAC as
Exhibit B.)
162. Even then, Lennar-Florida Plaintiff refused to accede to the Marsch Parties extortionate demands. At that point, the
Marsch Parties wrongfully and maliciously recorded a lis pendens against the Lakes at Rancho Santa Fe property. The lis
pendens was wrongful because, among other reasons, the Marsch Parties did not have, and indeed subsequently admitted in
sworn testimony that they did not have, any ownership interest in the real property itself. Although Lennar-Florida Plaintiff
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ultimately was able to have the lis pendens expunged, the damage had already been done. Faced with the Marsch Parties
threats, interference and extortionate demands, Quadrant refused to invest further capital into the project and insisted that
Lennar-Florida Plaintiff buy its interest back.
163. In February 2007, Lennar-Florida Plaintiff purchased Quadrants interest in the Lakes at Rancho Santa Fe. As a
consequence, Lennar-Florida Plaintiff has been forced to bear 100% of the cost and risk of the project. After Lennar-Florida
Plaintiffs purchase of Quadrants interest in the venture, the real estate market continued a dramatic decline to historic lows,
causing Lennar-Florida Plaintiff to incur substantial losses. Had the Marsch Parties not interfered with Lennar-Florida
Plaintiffs business relationship with Quadrant, Lennar-Florida Plaintiff would not have been exposed to 100% of these
losses. As a result of the Marsch Parties wrongful acts, Lennar-Florida Plaintiff has suffered direct and immediate losses in
connection with the Lakes at Rancho Santa Fe of more than $50 million above and beyond what it would have suffered had
the Marsch Parties not wrongfully interfered with Lennar-Florida Plaintiffs relationship with Quadrant.
164. Still, Lennar-Florida Plaintiff refused to capitulate to the Marsch Parties extortionate demands. On July 11, 2008, the
Marsch Parties sent seven separate, but identical, harassing and threatening letters (the Letters) to each of Lennar
Corporations outside independent members of its Board of Directors. The Letters made defamatory statements and constitute
libel per se, as well as a violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. 501.201, et seq. (A
copy of one of the July 11, 2008 Letters is attached to the FAC as Exhibit C.)
165. Specifically, but without limitation, the Letters included malicious, false, and libelous statements about Lennar-Florida
Plaintiff and its management, charging them with self-dealing, malfeasance, incompetence, and misappropriation of funds,
among other false accusations. After pages of knowingly false and malicious assertions, the Marsch Parties threatened to air
[Lennar-Florida Plaintiffs] dirty little secrets if Lennar-Florida Plaintiff did not make an immediate payment of $39 million
to the Marsch Parties. The Letters also threatened that Lennar-Florida Plaintiff must take certain action in order to avoid the
embarrassment of having these, and other issues, brought to light.... The Letters threatened that, unless Lennar-Florida
Plaintiff capitulated to the Marsch Parties extortionate demands, they would report Lennar-Florida Plaintiff to the Securities
and Exchange Commission and the companys auditors.
166. The Marsch Parties sent the Letters to each of the following seven outside directors of Lennar Corporation c/o Lennar
Corporation at 700 NW 107th Avenue, Miami, Florida:
A. Jeffrey Sonnenfeld -- Senior Associate Dean for Executive programs, Lester Crown Professor-in-the-Practice of
Management for the Yale School of Management, and Founder and President of the Chief Executive Leadership Institute of
Yale University.
B. Steven Gerard -- Chief Executive Officer of Century Business Services, Inc. (CBIZ). In the past, Mr. Gerard served as
the Chairman and CEO of both Triangle Wire & Cable, Inc and Great Point Capital, Inc.; Senior Managing Director for
Citibank; and Vice President of AMEXs Securities Division.
C. Sherrill Hudson -- Chairman and Chief Executive Officer of TECO Energy, Inc TECO). Prior to joining TECO in July
2004, Mr. Hudson spent 37 years with Deloitte & Touche LLP until he retired in 2002, including 19 years in Miami as
Managing Partner for its South Florida offices.
D. Sidney Lapidus -- Retired partner of Warburg Pincus LLC, where he served from 1967 until 2007. Mr. Lapidus presently
serves as a director of Lennar Corporation, Knoll, Inc. and The Nieman Marcus Group, Inc, as well as many nonprofit
organizations, including New York University School of Medicine, and is president of the American Jewish Historical
Society.
E. Irving Bolotin -- served as the Vice President of Lennar from 1972 until his retirement in 1998 and served as a Director of
Lennar Corporation from 1974 until his retirement. Mr. Bolotin also serves on the Board of Directors of Rechtien
International Trucks, Inc.
F. R. Kirk Landon -- served as a Director of Lennar Corporation since January 1999. Since 1996, Mr. Landon has served as
the President of The Kirk Foundation and President of The Kirk A. and Dorothy P. Landon Foundation. Prior to that, Mr.
Landon served as Chairman of Orange Clothing Company and as Chairman of Innovative Surveillance Technology. Mr.
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Landon also served on the Board of Trustees of Barry University and currently serves on the Board of Trustees of Florida
International University.
G. Donna Shalala -- President of the University of Miami. Ms. Shalala has a long history of leadership and service, including
holding such posts as: Secretary of the U.S. Department of Health and Human Services, Chancellor of the University of
Wisconsin-Madison, and President of Hunter College of the City University of New York.
167. The Marsch Parties also published the Letters to Richard Mager, a member of the California business community,
among others.
168. When Lennar-Florida Plaintiff still refused to pay the Marsch Parties money, the Marsch Parties turned to Barry
Minkow--an admitted perpetrator of financial frauds who served 7 years of a 25-year prison sentence--his company the Fraud
Discovery Institute
169. In or around November 2008, the Minkow Parties conspired and entered into an agreement with the Marsch Parties to
use fraud, identity theft, and manipulation of the public securities markets, among other things, to harm Lennar-Florida
Plaintiffs business and reputation in an effort to force Lennar-Florida Plaintiff to pay millions of dollars to all Defendants.
The Minkow Parties knew about, approved of, and ratified the Marsch Parties prior illegal conduct and agreed to continue
the scheme. The Marsch Parties agreed to pay the Minkow Parties to help further the illegal scheme. The Marsch Parties and
Minkow Parties agreed to use a full flurry of attacks and potential unveiling of alleged wrongdoing by Lennar-Florida
Plaintiff and its executives to create pressure from the outside auditors, . . . stock analysts, and even the outside media. The
ultimate goal of this blitzkrieg approach was to extort Lennar-Florida Plaintiff into paying millions of dollars to the Marsch
Parties who, in turn, would pay money to the Minkow Parties.
170. Among other things, with the knowledge, consent, and ratification of the Marsch Parties, and as agents of the Marsch
Parties, the Minkow Parties have disseminated knowingly false and fraudulent statements about Lennar-Florida Plaintiff and
its senior executives in order to damage Lennar-Florida Plaintiffs reputation, stock price, and business. In pursuing these
illicit objectives, the Minkow Parties have committed numerous illegal, malicious, and harmful acts as agents of the Marsch
Parties.
171. For example, without limitation, in or about November 2008, the Minkow Parties contacted Michael Morgan, a resident
of Stuart, Florida, in order to defame Florida resident Lennar-Florida Plaintiff and its executives, including Chief Executive
Officer Stuart Miller, a Florida resident, Chief Operating Officer Jonathan Jaffe. On several occasions throughout November
and December 2008, the Minkow Parties emailed documents to Mr. Morgan and called him in Florida to speak on the
telephone. In the emails and on the phone, the Minkow Parties made false statements about, among other things, (a) Mr.
Jaffes personal residence in Laguna Beach, California; (b) a $5 million loan to Mr. Jaffe by Mr. Robert Venneri of Canyon
Finance, Inc. in August 2007 secured by an interest in Mr. Jaffes personal residence; (c) a connection between Mr. Jaffes $5
million loan and a real estate transaction in which one of Mr. Venneris companies had been involved; (d) a connection
between Mr. Jaffes $5 million loan and a another company called SunCal; and (e) Lennar-Florida Plaintiffs failure to report
these alleged connections as related party transactions in financial statements required by the SEC. These statements
constitute defamation per se, as well as a violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
501.201, et seq.
172. The Minkow Parties encouraged Mr. Morgan to notify Lennar-Florida Plaintiff that the Marsch and Minkow Parties
possess powerful connections in the media and government and they intended to go public with inflammatory allegations
about Lennar-Florida Plaintiff and its management unless Lennar-Florida Plaintiff agreed to pay off the Marsch Parties. Mr.
Morgan contacted Lennar-Florida Plaintiffs General Counsel in Miami, Florida and conveyed this information.
173. On or about December 12, 2008, and before Lennar-Florida Plaintiff had any knowledge or information about the
Minkow Parties or any of their above-described activities and plans, an unknown individual--who on information and belief
was one of the Defendants or working for them--falsely, fraudulently, and illegally misrepresented himself to be Mr. Jaffes
loan broker Robert Venneri to Wells Fargo Bank, a federally insured bank, in an effort to illegally obtain private and
confidential financial information. The imposters call was directed to Oscar Diaz, a Wells Fargo relationship manager
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responsible for Mr. Venneris business accounts. The imposter, claiming to have a cold that he caught from Cheryl, the
first name of Mr. Venneris spouse, pretended to be Mr. Venneri, offered to provide private account information to
substantiate his identity, and asked Mr. Diaz to tell him the source of funds in a particular account in August 2007, the
approximate time of the Canyon Finance loan to Mr. Jaffe.
174. This illegal pretexting failed when Mr. Diaz, who suspected the caller was not Mr. Venneri, contacted the real Mr.
Venneri and determined the inquiry was fraudulent. Upon being informed that the caller was falsely representing himself to
be Mr. Venneri, Mr. Diaz terminated the call.
175. After the foregoing events occurred, Lennar-Florida Plaintiff met with Mr. Morgan and, for the first time, learned of all
Defendants interest in the August 2007 loan to Mr. Jaffe and extortionate threats to go public if the Marsch Parties were
not paid off. Lennar-Florida Plaintiff sought to contact Mr. Venneri to apprise him of all Defendants allegations. In the
process, Lennar-Florida Plaintiff then learned of the December 12 illegal pretexting attempt to obtain confidential bank
account information from Wells Fargo. Lennar-Florida Plaintiff immediately commenced an investigation and served
subpoenas for the depositions of Mr. Diaz in California and Mr. Morgan in Florida.
176. At Mr. Diazs deposition on January 6, 2009, the Marsch Parties counsel was present, heard a complete account of the
illegal pretexting, and cross-examined the witness.
177. Because of the subpoena to Mr. Morgan, the Marsch Parties also knew Lennar-Florida Plaintiff was about to take Mr.
Morgans deposition on January 9 to obtain his testimony about the Minkow Parties communications regarding the loan Mr.
Venneri arranged for Mr. Jaffe. Anticipating this incriminating disclosure about the target of the illegal pretexting scheme,
just hours before the deposition of Mr. Morgan commenced, the Minkow Parties, acting to further the wrongful interests of
the Marsch Parties, made good on their threat to go public and launched a vicious, malicious, and false public attack on
Lennar-Florida Plaintiff throughout the country, including directing defamatory materials into Florida.
178. Before the New York Stock Exchange opened on January 9, 2009, the Minkow Parties, on behalf of the Marsch Parties,
issued a widespread press release stating that FDI had launched the Top 10 Red Flags for Fraud at Lennar Corporation.
The press release, which had been reviewed and approved by the Marsch Parties, directed members of the business
community and public throughout the U.S. to a new website created and maintained by the Minkow Parties called
www.lenn-ron.com in an express effort to associate Lennar-Florida Plaintiff with Enron Corporation, a company famously
accused of illegal accounting. On this website and their home website, www.frauddiscovery.net, the Minkow Parties posted
links to other false content about Lennar-Florida Plaintiff.
179.
The
lenn-ron
website
includes
a
link
to
a
video
hosted
by
YouTube.com
(http://www.youtube.com/watch?v=B-GvyWJOCYM). In the linked video, Minkow repeatedly and falsely accuses
Lennar-Florida Plaintiff of being a financial crime in progress, of being a fraud, of conceal[ing] debt and misallocat
[ing] or misappropriat[ing] funds between joint ventures, and of being plagued by an environment of fraud at the highest
levels--as supposedly evidenced by a third trust deed Five Million Dollar loan as a disguised kickback using the sale of
his primary residence. (A transcript of the content of the Minkow video is attached to the FAC as Exhibit D.)
180. Further examples of the false and libelous material on the lenn-ron site come from a 30-page report written in the
form of a letter to agents of the Securities and Exchange Commission, Federal Bureau of Investigations, and Internal
Revenue Service. In this report, a copy of which is attached to the FAC as Exhibit E, the Minkow Parties confirm that
their clients are the Marsch Parties on whose behalf the Minkow Parties were acting. The Minkow Parties thereafter made
numerous false and malicious statements including, without limitation, accusing Lennar-Florida Plaintiff of:
a. Being like accused Ponzi-scheme operator Bernie Madoff and treat[ing] their joint ventures exactly like a Ponzi scheme;
b. Taking money to which Lennar-Florida Plaintiff was not entitled or bilking its business partners out of their investments;
c. Failing to account to its business partners;
d. Engaging in RICO type of intentional bullying behavior;
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e. Being the bully of the prison yard by knowingly and willfully abusing the legal system to gain an unfair advantage
over the less capitalized, smaller entities;
f. Failing to comply with securities laws by not disclosing the $5 million loan to Mr. Jaffe, which is likened to an illegal
kickback, as a related party transaction;
g. Committing accounting or securities reporting violations in connection with disclosures relating to Lennar-Florida
Plaintiffs joint ventures;
h. Overstating its income and conceal[ing] debt for the purpose of hiding a true financial condition border[ing] on
insolvent; and
i. Inventing the December 12 incident wherein the imposter tried to obtain private and confidential financial information from
Wells Fargo Bank.
181. The press release, the lenn-ron website, and the content accessible by the links thereon make multiple false, malicious,
and defamatory statements and constitute libel per se, as well as a violation of the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. 501.201, et seq.
182. The Minkow and Marsch Parties press release, the Minkow Parties websites, and the youtube video were published
nationally and in the State of Florida. Florida resident Morgan viewed the press release and websites in Florida on January 9
and later. Several Lennar-Florida Plaintiff officers in Florida also viewed the press release, websites, and youtube video in
Florida on January 9 and later. Minkow contacted a reporter from the Miami Herald in connection with the launch of the
press releases, repeating his libelous statements about Lennar-Florida Plaintiff and its management.
183. Minkow Parties actions, at the direction of the Marsch Parties, to further the wrongful objectives and tactics of the
Marsch Parties were designed to severely and fraudulently manipulate and did manipulate the public market for
Lennar-Florida Plaintiffs securities, in addition to damaging Lennar-Florida Plaintiffs business operations and reputation.
184. As a direct and immediate consequence of the Minkow Parties broad public dissemination of the January 9, 2009 press
release and the content of the lenn-ron website, together with the Minkow Parties continuing other statements to the media
and investment community, Lennar Corporations stock plunged more than 20%, falling from $11.42 at the previous days
close to a low of $8.23. By the end of trading on January 9, the stock had recovered slightly to $9.15--but more than $364
million in market capitalization had been lost in an unprecedented trading of more than 58 million shares of Lennar
Corporation. In addition to reputational harm, the artificial decrease in Lennar Corporations stock price negatively impacted
Lennar-Florida Plaintiffs credit rating, ability to borrow capital, subsequent equity offerings, and day-to-day, long-term, and
strategic operations, among other things.
185. Since the January 9 report and press release, the Minkow Parties, on behalf of the Marsch Parties, have disseminated
throughout the country and into Florida additional false, misleading, and malicious information about Lennar-Florida
Plaintiff, including:
a. On January 12, 2009, the Minkow Parties disseminated additional false, misleading, and malicious information about
Lennar-Florida Plaintiff, including a new press release accusing Lennar Corporations Chief Executive Officer of lying.
(The January 12, 2009 press release is attached to the FAC as Exhibit F.)
b. On January 13, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a press release entitled FDI Releases
Top 5 LIE-NNAR Lies With New Web Site and New Evidence on Lennar Corporation, and issued a report entitled Top
5 Lies from LIE-NNAR.com (Lennar Corporation NYSE:LEN), and launched a new website, entitled: www.lie-nnar.com.
The release included additional false accusations of fraud, concealment of debt and malfeasance in every area Lennar-Florida
Plaintiff does business. (The January 13, 2009 press release and report are attached to the FAC as Exhibits G and H.)
c. On January 23, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a press release entitled: [FDI] releases
rebuttal to Lennar (NYSE:LEN) responses through new You Tube video and new evidence including a certified appraisal
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review; posted a report on their website by G. Hatch and entitled Review of J. Jaffe Appraisal Report dated 9/07/07; and
posted a You Tube video featuring Minkow making additional false statements about Lennar-Florida Plaintiff and its
executives. The release once again falsely compared Lennar-Florida Plaintiffs joint ventures to Ponzi schemes and accused
Lennar-Florida Plaintiff of fraudulent accounting. (The press release, Hatch Report, and youtube transcript are attached to the
FAC as Exhibits I, J, and K.)
d. On January 30, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release
entitled Californians for Renewable Energy, Inc. (CARE), and [FDI] join forces in action against Lennar Corporation
(NYSE:LEN) through potential civil racketeering case. (The January 30, 2009 press release is attached to the FAC as
Exhibit L.)
e. On February 4, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a press release entitled Fiduciary
Analyst Chris McConnell Expands Scope of Lennar Concerns With New Report, Says [FDI], and posted a report by Chris
McConnell on the FDI website. The report falsely accused Lennar-Florida Plaintiff and its executives of breaches of fiduciary
duty and once again compared Lennar-Florida Plaintiff to Enron. (The February 4, 2009 press release and McConnell Report
are attached to the FAC as Exhibits M and N.)
f. On February 19, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release
entitled New analyst report: Lennar (NYSE:LEN) has 72% chance of bankruptcy within 2 years; and posted a report by
Reggie Middleton on their websites. (The February 19, 2009 press release and Middleton Report are attached to the FAC as
Exhibits O and P.)
186. When Lennar-Florida Plaintiff still refused to be extorted, the Minkow Parties, on behalf the Marsch Parties, called
Florida resident Morgan again in mid-March 2009. In these telephone conversations, the Minkow Parties falsely stated that
two senior Lennar-Florida Plaintiff officers maintain bank accounts in the Cayman Islands and/or Switzerland; the officers
illegally diverted funds from Lennar-Florida Plaintiff and/or its joint ventures into these secret bank accounts; and the
officers did not declare these alleged accounts on their tax returns. The Minkow Parties falsely told Mr. Morgan they
possessed signature cards and other private information to prove the existence of the alleged Cayman Islands and Swiss bank
accounts. The Minkow Parties threatened to disclose this information publicly and encouraged Mr. Morgan to convey this
information to Lennar-Florida Plaintiffs General Counsel in Miami. These false statements constitute defamation per se, as
well as a violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. 501.201, et seq.
187. Lennar-Florida Plaintiff continued refused to pay money, so the Minkow Parties, on behalf of the Marsch Parties, sent
an email to Lennar-Florida Plaintiff outside director R. Kirk Landon in Miami, Florida on April 14, 2009. The April 14, 2009
email attached what the Minkow Parties claimed was an internal memorandum from an anonymous Lennar-Florida Plaintiff
insider. On information and belief, the internal memorandum is a fraudulent document created by the Marsch Parties, the
Minkow Parties and/or someone working in concert with them. (A copy of the April 14, 2009 Email is attached to the FAC as
Exhibit Q.)
188. Lennar-Florida Plaintiff director Sidney Lapidus notified the Minkow Parties that Lennar-Florida Plaintiffs Board of
Directors had investigated their claims and determined that they lacked merit.
189. Within hours of receiving Mr. Lapiduss response, the Minkow Parties sent an email to Lennar-Florida Plaintiffs
General Counsel in Miami threatening to continue the Marsch Parties and Minkow Parties extortionate, defamatory, and
fraudulent scheme:
[W]hat I will say is if you guys did not like the first report, you will not like the sequel: Lennar, the Sequel -- Coming to
an FDI web site near you. Its really cool because weve got that Don Lafontaine thing going to introduce the
documentary/report with the movie preview voice over with the deep, recognizable voice that begins the documentary: In a
world where fraud is king there is one company that stands out.... well, you can figure out the rest.
(Bold in original April 16, 2009 Minkow/FDI Email) (A copy of the April 16, 2009 Email is attached to the FAC as Exhibit
R.)
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190. Thereafter, the Minkow Parties, on behalf of the Marsch Parties, continued their extortionate scheme. They have
disseminated throughout the country and into Florida additional false, misleading, and malicious information about
Lennar-Florida Plaintiff, including:
a. On May 13, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release entitled
Lennar (NYSE:LEN) CEO Stuart Miller and COO Jon Jaffe have bank accounts in the Caymans, Switzerland and a
youtube video, in which Mr. Minkow falsely stated that Mr. Miller and Mr. Jaffe maintain accounts at banks in the Cayman
Islands and Switzerland. (A copy of the May 13, 2009 Press Release and transcript of the May 13, 2009 youtube video are
attached to the FAC as Exhibits S, T.)
b. On May 27, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release stating
that Lennars CEO and COO conspired with third-parties to defraud its joint venture partner. (A copy of the May 27,
2009 Press Release is attached to the FAC as Exhibit U.)
c. On October 7, 2009, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release
stating that Lennar Corporation does not generate profits as a home-builder and hasnt for years and the company really
generates income through the victimization of local, entrepreneurial builders and developers who enter into these joint
venture projects involving land and development but whose end is demise. (A copy of the October 7, 2009 Press Release is
attached to the FAC as Exhibit V.)
d. On January 14, 2010, on behalf of the Marsch Parties, the Minkow Parties issued a false and misleading press release
stating that Lennar-Florida Plaintiff mislead the investing public about its business operations: Wall Street expected a loss
and shares rose on the news of the profit. But was it really a profit? Not really. The press release also made false statements
regarding compensation and bonuses for senior Lennar-Florida Plaintiff management. (A copy of the January 14, 2010 Press
Release is attached to the FAC as Exhibit W.)
191. Each of the foregoing communications, press releases, reports, and youtube videos contain false and defamatory
statements about Lennar-Florida Plaintiff, were published maliciously and in furtherance of the Marsch Parties and Minkow
Parties extortionate, defamatory, and fraudulent objectives and tactics, and were disseminated within the State of Florida
with the specific intention of causing massive financial harm to Lennar-Florida Plaintiff in Florida, which they succeeded in
doing. The continuing barrage of knowingly false statements by the Minkow Parties, made on behalf of the Marsch Parties, to
the investing public further drove down the share price of Lennar Corporation stock causing hundreds of millions of dollars
in damage. In addition to reputational harm, the artificial decrease in Lennar-Florida Plaintiffs stock price negatively
impacted Lennar-Florida Plaintiffs credit rating, ability to borrow capital, subsequent equity offerings, and day-to-day,
long-term, and strategic operations, among other things. These subsequent press releases, reports, and youtube videos
constitute libel per se, as well as violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. 501.201, et
seq.
V. STATE LAW CLAIMS IN THE DLA1 ACTION

192. Plaintiff incorporates by reference paragraphs 1 through 191 above, inclusive, and each and every such paragraph by
reference as if set forth in full herein.
A. Conspiracy to Breach Fiduciary Duty - (Fifth Cause of Action in the DLA1 Action)
193. Beginning shortly after Lennar-DLA 1 Plaintiff retained DLA Piper and Foster for the McCrink property matter, the
Marsch Parties knowingly and willfully conspired and agreed among themselves to secretly deceive Lennar-DLA 1 Plaintiff
and induce it to take actions with respect to the McCrink property that advanced Marschs interests at Lennar-DLA 1
Plaintiffs expense. As alleged above, such acts constitute breaches of the fiduciary duties owed by DLA Piper and Foster to
Lennar-DLA 1 Plaintiff.
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194. To advance the wrongful purposes of that conspiracy, the Marsch Parties (a) employed the services of Foster to provide
advice and representation to Lennar-DLA 1 Plaintiff that would serve the interests of Marsch to Lennar-DLA 1 Plaintiffs
detriment; (b) undertook the concurrent and conflicting representation of Marsch without disclosure to and consent from
Lennar-DLA 1 Plaintiff; (c) disclosed Lennar-DLA 1 Plaintiffs confidential and privileged information to Riney without
Lennar-DLA 1 Plaintiffs knowledge or authorization; (d) concealed from Lennar-DLA 1 Plaintiff the disclosure of
confidential and privileged information to Riney and Rineys role in advising Lennar-DLA 1 Plaintiff; and (e) concealed
from Lennar-DLA 1 Plaintiff Marschs intentions and actions to assert an interest in McCrink Ranch.
195. The Marsch Parties conspiracy continued through at least November 2006, if not later.
196. As a direct and proximate result of the Marsch Parties conspiracy (a) Lennar-DLA 1 Plaintiff entered into a transaction
to purchase the McCrink property without knowledge of Marschs intent and plan to assert an ownership interest in the
property, which facts were known to DLA Piper and Foster; (b) Lennar-DLA 1 Plaintiff acquired the McCrink property on
terms it would not have otherwise accepted; (c) Lennar-DLA 1 Plaintiff incurred expenses and made payments to third
parties in the course of acquiring the McCrink property necessitated by DLA Piper and Fosters breach of their fiduciary
duties; (d) Lennar-DLA 1 Plaintiff paid legal fees to DLA Piper and Foster during the period they were in breach of their
duties; (e) Lennar-DLA 1 Plaintiff incurred substantial legal fees to defend against Marschs claims (brought through
Briarwood) relating to McCrink; and (g) Lennar-DLA 1 Plaintiff suffered exposure to expenses, losses, or risks associated
with the development of the McCrink property. As a result, Lennar-DLA 1 Plaintiff has suffered millions of dollars of
monetary damages in an amount to be proven at trial.
197. The Marsch Parties conspiracy to breach a fiduciary duty was willful, oppressive, and malicious. Consequently,
Lennar-DLA 1 Plaintiff is entitled to recover punitive damages.
B. Aiding and Abetting Breaches of Fiduciary Duties (Sixth Cause of Action in the DLA1 Action)
198. Marsch willfully and maliciously aided and abetted DLA Piper and Fosters breaches of their fiduciary and professional
duties to Lennar-DLA 1 Plaintiff.
199. As a direct and proximate result of Marschs aiding and abetting of the breaches of fiduciary and professional duties by
DLA Piper and Foster (a) Lennar-DLA 1 Plaintiff entered into a transaction to purchase the McCrink property without
knowledge of Marschs intent and plan to assert an ownership interest in the property, which facts were known to DLA Piper
and Foster; (b) Lennar-DLA 1 Plaintiff acquired the McCrink property on terms it would not have otherwise accepted; (c)
Lennar-DLA 1 Plaintiff incurred expenses and made payments to third parties in the course of acquiring the McCrink
property necessitated by DLA Piper and Fosters breach of their fiduciary duties; (d) Lennar-DLA 1 Plaintiff paid legal fees
to DLA Piper and Foster during the period they were in breach of their duties; (e) Lennar-DLA 1 Plaintiff incurred
substantial legal fees to defend against Marschs claims (brought through Briarwood) relating to McCrink; and (f)
Lennar-DLA 1 Plaintiff suffered exposure to expenses, losses, or risks associated with the development of the McCrink
property. As a result, Lennar-DLA 1 Plaintiff has suffered millions of dollars of monetary damages in an amount to be
proven at trial in the DLA1 Action.
200. Marschs aiding and abetting of DLA Piper and Fosters breaches of fiduciary and professional duties was willful,
oppressive, and malicious. Consequently, Lennar-DLA 1 Plaintiff is entitled to punitive damages in the DLA1 Action.
C. Interference with Contractual Relationship (Seventh Cause of Action in the DLA1 Action)
201. Marsch knew of the contractual relationship between Lennar-DLA 1 Plaintiff, on the one hand, and DLA Piper and
Foster, on the other, for the provision of legal services in connection with the McCrink property.
202. Marsch willfully and maliciously intentionally interfered with this contract by inducing Foster to disregard his
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contractual and fiduciary obligations to Lennar-DLA 1 Plaintiff and instead seek to advance Marschs interests to
Lennar-DLA 1 Plaintiffs detriment. Lennar-DLA 1 Plaintiff is informed and believes, and on that basis alleges, that Marsch
engaged in this conduct with the knowledge that disruption of the attorney-client relationship between Lennar-DLA 1
Plaintiff and DLA Piper and Foster was substantially certain to occur, and with the wrongful intent and purpose to cause
financial harm to Lennar-DLA 1 Plaintiff and to induce DLA Piper and Foster to breach their fiduciary duties to Lennar-DLA
1 Plaintiff.
203. Marsch in fact induced DLA Piper and Foster to breach their contractual and fiduciary obligations to Lennar-DLA 1
Plaintiff.
204. As a direct and proximate result of Marschs interference with Lennar-DLA 1 Plaintiffs contractual relationship with
DLA Piper and Foster (a) Lennar-DLA 1 Plaintiff entered into a transaction to purchase the McCrink property without
knowledge of Marschs intent and plan to assert an ownership interest in the property, which facts were known to DLA Piper
and Foster; (b) Lennar-DLA 1 Plaintiff acquired the McCrink property on terms it would not have otherwise accepted; (c)
Lennar-DLA 1 Plaintiff incurred expenses and made payments to third parties in the course of acquiring the McCrink
property necessitated by DLA Piper and Fosters breach of their fiduciary duties; (d) Lennar-DLA 1 Plaintiff paid legal fees
to DLA Piper and Foster during the period they were in breach of their duties; (e) Lennar-DLA 1 Plaintiff incurred
substantial legal fees to defend against Marschs claims (brought through Briarwood) relating to McCrink; and (f)
Lennar-DLA 1 Plaintiff suffered exposure to expenses, losses, or risks associated with the development of the McCrink
property. As a result, Lennar-DLA 1 Plaintiff has suffered millions of dollars of monetary damages in an amount to be
proven at trial in the DLA1 Action.
205. Marschs interference with Lennar-DLA 1 Plaintiffs contract with DLA Piper and Foster was willful, oppressive, and
malicious. Consequently, Lennar-DLA 1 Plaintiff is entitled to punitive damages in the DLA1 Action.
VI. DLA 2 STATE LAW CLAIMS

206. HCC, Lennar Bridges, Lennar-DLA 2 Plaintiff and HCC Holdings re-allege and incorporate by this reference
paragraphs 1-205, above, as though set forth in full.
A. Aiding and Abetting Breaches of Fiduciary Duties (Seventh Cause of Action in DL2 Action)
207. By virtue of the attorney-client relationship, DLA and Foster owed LLP II, LL Partners, LSJH, HCC, Lennar Bridges
and Lennar Homes fiduciary duties under the common law, California Business and Professions Code section 6068, and the
California Rules of Professional Conduct, including but not limited to the duties of competency, loyalty, communication and
candor.
208. Marsch willfully and maliciously aided and abetted DLA and Fosters breaches of their fiduciary and professional duties
to LLP II, LL Partners, LSJH, HCC, Lennar Bridges and Lennar Homes.
209. As a direct and proximate result of Marschs aiding and abetting of those breaches of fiduciary and professional duties
by DLA and Foster, Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges: (1) entered into a purported transaction to admit
Marsch as a member of Lennar Bridges under which Marsch claims greater rights than his rights related to HCC; (2)
executed the 2005 tolling agreement, which, if not rescinded, may expose Lennar-DLA 2 Plaintiff to claims; (3) expended
significant funds to prepare revised financial and accounting information to Marsch and defend against claims brought by
Marsch with Fosters assistance; (4) paid over $1.5 million in additional Prior Investors Fund monies; (5) paid over $15
million to satisfy the Marsch Judgments; (6) paid Marsch over $13 million in override fees; (7) paid legal fees to DLA and
Foster during the period they were in breach of their duties; (8) invested millions of dollars in the development of HCC and
Lennar Bridges; and (9) incurred and will continue incur substantial legal fees in litigation with Marsch. As a result,
Lennar-DLA 2 Plaintiff, HCC, Lennar Bridges and HCC Holdings have suffered monetary damages in an amount to be
proven at trial in the DLA 2 Action.
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210. Marschs aiding and abetting of DLA and Fosters breaches of fiduciary and professional duties was willful, oppressive,
and malicious. Consequently, Lennar-DLA 2 Plaintiff, HCC Holdings, Lennar Bridges and HCC are entitled to punitive
damages in the DLA2 Action.
B. Interference with Contractual and Business Relationship (Eighth Cause of Action in DLA2 Action)
211. Valid and enforceable contracts existed between LSJH, LLP II, LL Partners, Lennar Bridges, Lennar Homes, and HCC,
on the one hand, and DLA and Foster, on the other, for the provision of legal services. At all relevant times, LSJH, LLP II,
LL Partners, Lennar Bridges, Lennar Homes, and HCC fully performed its or their obligations under the contracts. At all
relevant times, Marsch was aware of those contractual relationships.
212. Marsch willfully and maliciously interfered with these contracts and business relationships by inducing Foster to
disregard his contractual and fiduciary obligations to HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff and instead seek to
advance Marschs interests to the detriment of HCC, Lennar Bridges, and Lennar-DLA 2 Plaintiff. Marsch engaged in this
conduct with the knowledge that disruption of the attorney-client relationship between Lennar-DLA 2 Plaintiff, HCC, and
Lennar Bridges and DLA and Foster was substantially certain to occur, and with the wrongful intent and purpose to cause
financial harm to Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges and to induce DLA and Foster to breach their fiduciary
duties to Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges.
213. Marsch in fact induced DLA and Foster to breach their contractual and fiduciary obligations to Lennar-DLA 2 Plaintiff,
HCC, and Lennar Bridges as discussed above.
214. As a direct and proximate result of Marschs interference with Lennar-DLA 2 Plaintiffs, Lennar Bridges and HCCs
contractual relationship with DLA and Foster, Lennar-DLA 2 Plaintiff, HCC, and Lennar Bridges: (1) entered into a
purported transaction to admit Marsch as a member of Lennar Bridges under which Marsch claims greater rights than his
rights related to HCC; (2) executed the 2005 tolling agreement, which, if not rescinded, may expose Lennar-DLA 2 Plaintiff
to claims; (3) expended significant funds to prepare revised financial and accounting information to Marsch and defend
against claims brought by Marsch with Fosters assistance; (4) paid over $1.5 million in additional Prior Investors Fund
monies; (5) paid over $15 million to satisfy the Marsch Judgments; (6) paid Marsch over $13 million in override fees; (7)
paid legal fees to DLA and Foster during the period they were in breach of their duties; (8) invested millions of dollars in the
development of HCC and Lennar Bridges; and (9) incurred and will continue incur substantial legal fees in litigation with
Marsch. As a result, Lennar-DLA 2 Plaintiff, Lennar Bridges, HCC Holdings, and HCC have suffered monetary damages in
an amount to be proven at trial in the DLA2 Action.
215. Marschs interference with Lennar-DLA 2 Plaintiffs, Lennar Bridges and HCCs contracts with DLA and Foster was
willful, oppressive, and malicious. Consequently, Lennar-DLA 2 Plaintiff, HCC Holdings, and HCC are entitled to punitive
damages in the DLA2 Action.
VII. STATE LAW CLAIMS IN THE CROSS-COMPLAINT IN THE BRIDGES ACTION

216. Plaintiffs incorporate by reference paragraphs 1 through 80 above, inclusive, and each and every such paragraph by
reference as if set forth in full herein
A. Breach of Contract -- 1999 Loan (Cross-Complaint, First Cause of Action)

217. On October 28, 1999, The Marsch Parties entered into a written, valid and enforceable contract--the 1999 Loan.
218. HCC has performed each and all of the conditions, covenants, and promises required of it to be performed under the
1999 Loan.
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219. The Marsch Parties have failed to pay, and continue to fail to pay, to HCC amounts owing on the 1999 Loan.
220. As a direct and proximate result of The Marsch Parties breach of the 1999 Loan, HCC has been damaged, and there is
now due, owing and unpaid from The Marsch Parties the outstanding amount of $2,007,900 in principal and $1,560,055.78 in
accrued interest, plus such additional interest, costs and fees as permitted by law. Interest continues to accrue as alleged
herein.
B. Money Lent and Paid -- 1999 Loan (Cross-Complaint - Second Cause of Action)
221. The Marsch Parties became indebted to HCC in the amount of $2,007,900 for money laid out and expended for The
Marsch Parties at their instance and request.
222. No part of this amount has been paid and there is now due, owing and unpaid from The Marsch Parties to HCC the
amount of $2,007,900 in principal under the 1999 Loan, plus interest allowed by law, for money lent and paid by HCC for
The Marsch Parties use and benefit. Interest continues to accrue on such amounts as alleged herein.
C. Breach of Express Conditions to Grant Deeds (Cross-Complaint - Third Cause of Action)

223. HCC has performed all of its obligations under the Master Declaration, Repurchase Agreement and all related
agreements, including but not limited to the 1999 Loan.
224. The Marsch Parties are in continuing breach of the Master Declaration, Grant Deeds and Repurchase Agreements by
failing to construct residences on Homesites 8 and 9.
225. By failing to perform according to the terms of the Master Declaration and the covenants therein, The Marsch Parties are
in continuing breach of the Master Declaration including, but not limited to, Section 10.19 of the Master Declaration.
226. By failing to perform according to the terms of the Repurchase Agreements and the covenants therein, The Marsch
Parties breached the Repurchase Agreement including, but not limited to, Sections 1.1 and 1.2 of the Repurchase Agreement.
227. As a direct and proximate result of The Marsch Parties material breaches of the Master Declaration, Repurchase
Agreement and Grant Deeds, The Marsch Parties have failed to comply with express conditions stated in the Grant Deeds
for Homesites 8 and 9.
228. Consequently, HCC is entitled to reconveyance of Homesites 8 and 9 pursuant to Civil Code section 1109 based on The
Marsch Parties failure to comply with conditions stated in the Grant Deeds.
229. As an alternative remedy to reconveyance, pursuant to the terms of the Repurchase Agreements, in the Cross-Complaint,
HCC seeks to repurchase Homesites 8 and 9 for their original purchase price, less HCCs costs of sale and costs to return the
Homesites to their original condition. Lennar-Bridges Cross-Plaintiff also seeks damages in an amount to be proven at trial.
D. Breach of Contract -- 2003 Loan and Promissory Note (Cross-Complaint - Fourth Cause of Action)
230. On March 10, 2003, The Marsch Parties entered into a written, valid and enforceable contract--the 2003 Loan.
231. HCC has performed each and all of the conditions, covenants, and promises required of it to be performed under the
2003 Loan.
232. The Marsch Parties have failed to pay, and continue to fail to pay, to HCC the amount owed under the promissory note
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executed in connection with the 2003 Loan.

233. As a direct and proximate result of The Marsch Parties breach of the 2003 Loan, HCC has been damaged, and there is
now due, owing and unpaid from The Marsch Parties outstanding principal of $2,000,000, plus accrued interest of
$834,698.63. Interest continues to accrue as alleged herein.
234. Pursuant to paragraph 4 of the 2003 Loan, HCC is entitled to recover its attorneys fees if it prevails on an action arising
from the 2003 Loan.
235. Pursuant to paragraph 6 of the promissory note, HCC is entitled to reasonable attorneys fees, costs and expenses in
connection with collecting amounts due under the 2003 Loan.
E. Money Lent and Paid -- 2003 Loan (Cross-Complaint, Fifth Cause of Action)
236. The Marsch Parties became indebted to HCC in the amount of $2,000,000 for money laid out and expended for The
Marsch Parties at their instance and request.
237. No part of this amount has been paid and there is now due, owing and unpaid from The Marsch Parties to HCC the
amount of $2,000,000 in principal under the 2003 Loan, plus interest allowed by law, for money lent and paid by HCC for
The Marsch Parties use and benefit. Interest continues to accrue on such amounts as alleged herein.
F. Breach of Contract (By Lennar-Bridges Cross-Plaintiff Against Briarwood and Marsch: Formation Agreement, HCC
Operating Agreement, Override Agreement) (Cross-Complaint - Sixth Cause of Action)
238. Lennar-Bridges Cross-Plaintiff has performed all of its obligations under the Formation Agreement, HCC Operating
Agreement and Override Amendment.
239. Briarwood and Marsch breached the Formation Agreement, the HCC Operating Agreement and the Override
Amendment by, among other things, using funds from the Facility for personal expenses and expenses unrelated to the
Claims; and putting their individual interests ahead of those of HCC and Lennar Bridges.
240. By failing to perform according to the terms of the Formation Agreement, HCC Operating Agreement, and Override
Amendment, Marsch and Briarwood breached each such agreement, including, but not limited to, Sections 2.1.3.a, 2.1.3.b
and 4.1 of the Formation Agreement, Sections 3.02, 6.02(a) and 6.02(c) of the HCC Operating Agreement, and Section 3 of
the Override Amendment.
241. Pursuant to Section 5.04 of the HCC Operating Agreement, Marsch is to receive a Special Distribution of fee title to a
Real Estate Sales Facility on a lot appurtenant to Fitness Center at The Bridges, and to receive the sole and exclusive right to
provide resale services from a site located within the Project. Section 5.04 is a severable obligation under the HCC
Operating Agreement.
242. Marsch and Briarwood have harmed lot sales and homesite resales at The Bridges through the above-described breaches,
as well as by failing to comply with covenants applicable to Homesites 8 and 9 that are intended to enhance the overall value
of The Bridges residences, and by other misconduct alleged herein. As a result, Marsch and Briarwood have demonstrated
themselves to be unfit to be exclusive resales agents for The Bridges. Marsch and Briarwoods breaches go to the heart of
Section 5.04 and excuse HCCs obligation to make any such distribution and HCC is entitled to a judicial declaration thereof.
243. As a direct and proximate result of Marsch and Briarwoods material breaches of the Formation Agreement, HCC
Operating Agreement and Override Amendment, Lennar-Bridges Cross-Plaintiff has been damaged in an amount to be
proven at trial.
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244. Section 8.9 of the Formation Agreement and Section 12.07 of the HCC Operating Agreement expressly provide that
Lennar-Bridges Cross-Plaintiff is entitled to recover its attorneys fees in any action arising from Marsch and Briarwoods
breach of such agreements. Accordingly, Lennar-Bridges Cross-Plaintiff is further entitled to recover its attorneys fees
incurred herein, according to proof.
G. Rescission -- Override Payment Agreement (Cross-Complaint - Seventh Cause of Action)

245. In or about 1996 or 1997, Marsch represented to Lennar-Bridges Cross-Plaintiff, and understood that Lennar-Bridges
Cross-Plaintiff believed, that (a) Lennar-Bridges Cross-Plaintiff owned a one-half half interest in the La Jolla Judgment prior
to the formation of HCC; (b) each partys one-half interest in the La Jolla Judgment was valued at zero dollars when
contributed to HCC; and (c) neither party would receive a capital account or preference account balance for contributing an
interest in the La Jolla Judgment. In or about July 1999, Marsch further represented, and understood that Lennar-Bridges
Cross-Plaintiff believed, that he had no objection to HCC distributing cash received from the La Jolla Judgment to partially
repay Lennar-Bridges Cross-Plaintiffs capital contributions through July 1999 and agreed-upon 25% return.
246. Marschs foregoing representations were false when made and made with an intent to deceive and induce
Lennar-Bridges Cross-Plaintiff to rely on them. Lennar-Bridges Cross-Plaintiff actually and reasonably relied on such
representations. Marsch has now repudiated the foregoing facts. Had Lennar-Bridges Cross-Plaintiff known the true facts and
that Marsch would repudiate his representations, it would never have agreed to the Override Payment Agreement.
247. Lennar-Bridges Cross-Plaintiff and HCC have suffered and will continue to suffer substantial harm and injury if the
Override Payment Agreement is not rescinded.
248. Lennar-Bridges Cross-Plaintiff intended that service of summons of the Cross-Complaint serve as notice of rescission of
the Override Payment Agreement.
249. In addition, Marsch and Briarwoods fraudulent conduct was willful, oppressive, and malicious. Consequently,
Lennar-Bridges Cross-Plaintiff is entitled to punitive damages.
H. Conversion (Cross-Complaint - Eighth Cause of Action)

250. HCC is, and at all times herein mentioned was, the rightful and lawful owner of the specific and identifiable funds in the
Facility and that were remitted to Marsch and Briarwood as Override Fees.
251. Marsch and Briarwood have wrongfully dispossessed HCC of its property by (a) wrongfully withdrawing and retaining
proceeds from the Facility for expenses unrelated to the Claims; and (b) wrongfully obtaining and retaining Override Fees.
Demand for return of the converted property is excused because such a demand would be futile.
252. As a direct and proximate result of Briarwood and Marschs wrongful dispossession of HCCs property, HCC has been
damaged in an amount to be proven at trial because it has received neither the property it had a legal right to possess nor the
market value thereof.
253. Marsch and Briarwoods conversion of HCCs property was done with malice, oppression, fraud and in bad faith, in
conscious disregard of HCCs and Lennar-Bridges Cross-Plaintiffs rights, and performed with the intention of depriving
HCC and Lennar-Bridges Cross-Plaintiff of their respective rights. Accordingly, their conduct merits, and HCC and
Lennar-Bridges Cross-Plaintiff seek, an award of punitive damages in the Bridges Action in an amount sufficient to punish
Marsch and Briarwood and to deter such conduct in the future.
I. Declaratory Relief -- Title to Homesites 8 and 9 (Cross-Complaint - Ninth Cause of Action)

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254. An actual controversy has arisen and now exists between HCC and The Marsch Parties concerning the parties rights,
duties and obligations under the Grant Deeds, Master Declaration, and Repurchase Agreements as a result of The Marsch
Parties violation of express conditions in such documents by, among other things, failing to construct residences on
Homesites 8 and 9. This controversy affects the parties legal rights concerning title and possession to Homesites 8 and 9, and
requires adjudication by the Court in order for the parties to ascertain their respective rights and obligations.
255. Accordingly, in the Cross-Complaint, HCC seeks a declaration in the Bridges Action that it is entitled to reconveyance
of Homesites 8 and 9 pursuant to Civil Code section 1109 based on The Marsch Parties failure to comply with conditions
stated in the Grant Deeds.
J. Declaratory Relief -- Tolling Agreement (Cross-Complaint - Tenth Cause of Action)

256. A controversy between the parties exists over the parties legal rights and duties, if any, regarding the Tolling
Agreement.
257. Marsch and Briarwood are the putative beneficiaries of the Tolling Agreement. The Tolling Agreement must be declared
null and void on the grounds of Marschs misrepresentations and non-disclosures of material facts, as alleged above, and The
Marsch Parties contend to the contrary.
258. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff seeks a judicial declaration in the Bridges Action that the
Tolling Agreement is null and void and that the Tolling Agreement does not tolls any applicable statute of limitations for
claims asserted by Briarwood or Marsch.
K. Rescission -- Tolling Agreement (Cross-Complaint - Eleventh Cause of Action)

259. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that the Tolling Agreement must be rescinded on the
grounds of Marschs misrepresentations and nondisclosures of material facts as alleged above.
260. Lennar-Bridges Cross-Plaintiff justifiably relied on Marschs and Fosters representations in entering into the Tolling
Agreement.
261. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that the Tolling Agreement should be rescinded on the
grounds of fraud, non-disclosure, breach of Fosters fiduciary duties, breach of contract and mistake.
262. In addition, as a result of Marschs conduct, Lennar-Bridges Cross-Plaintiff has suffered damages in an amount to be
proven at trial.
263. Marsch and Briarwoods fraudulent conduct was willful, oppressive, and malicious. Consequently, Lennar-Bridges
Cross-Plaintiff is entitled to punitive damages.
L. Declaratory Relief -- Lennar Bridges Admission Agreement (Cross-Complaint - Twelfth Cause of Action)
264. Lennar-Bridges Cross-Plaintiff invested in Lennar Bridges and executed the Admission Agreement in justifiable
reliance on Marschs representations that, should Marsch become a member of Lennar Bridges, Lennar-Bridges
Cross-Plaintiffs interests in Lennar Bridges would be governed by the same or substantially identical terms as those
contained in the HCC Operating Agreement. The Admission Agreement is expressly conditioned on execution of an
operating agreement incorporating the same or substantially identical terms of the HCC Operating Agreement. Marsch and
Foster also misrepresented and failed to disclose material facts as alleged above.
265. A controversy between the parties exists over the parties legal rights and duties, if any, regarding the Admission
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Agreement and Lennar Bridges.

266. The parties economic rights and obligations in Lennar Bridges are essential terms, without which the Admission
Agreement is unenforceable or an unenforceable agreement to agree. The Admission Agreement is further unenforceable as a
result of the failure of a material condition, failure of consideration, fraud, breach of Fosters fiduciary duties, nondisclosure,
mistake and/or breach of contract.
267. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff seeks a judicial declaration in the Bridges-Action that the
Admission Agreement is null and void and that neither Briarwood nor Marsch is a member of Lennar Bridges.
M. Rescission -- Lennar Bridges Admission Agreement (Cross-Complaint - Thirteenth Cause of Action)

268. As alleged above, Lennar-Bridges Cross-Plaintiff invested in Lennar Bridges and executed the Admission Agreement in
actual and justifiable reliance on Foster and Marschs assurances that, should Marsch become a member of Lennar Bridges,
Lennar-Bridges Cross-Plaintiffs economic interests in Lennar Bridges would be governed by the same or substantially
identical terms as those contained in the HCC Operating Agreement. The Admission Agreement is expressly conditioned on
execution of an operating agreement to memorialize Marsch and Briarwoods agreement that Lennar Bridges would be
governed by the same or substantially identical provisions as contained in the HCC Operating Agreement. Also, as alleged
above, Marsch, Briarwood and Foster failed to disclose and withheld material facts regarding Fosters conflicts of interest.
269. Marsch has repudiated his assurances and no operating agreement has been signed. If the Admission Agreement is
determined to be a valid agreement, it must be rescinded for, inter alia, failure of a material condition, failure of
consideration, fraud, breach of Fosters fiduciary duties, non-disclosure, mistake and/or breach of contract.
270. In addition, as a result of The Marsch Parties conduct, Lennar-Bridges Cross-Plaintiff has suffered damages in an
amount to be proven at trial.
271. The Marsch Parties fraudulent conduct was willful, oppressive, and malicious. Consequently, Lennar-Bridges
Cross-Plaintiff is entitled to punitive damages.
N. Reformation -- Lennar Bridges Admission Agreement (Cross-Complaint - Fourteenth Cause of Action)

272. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that at a minimum and without waiving its demands for
rescission or for declaratory relief above, if the Admission Agreement is not rescinded or declared null and void,
Lennar-Bridges Cross-Plaintiff is entitled to reformation of that agreement to reflect that the parties rights in Lennar Bridges
are to be governed by the terms of the HCC Operating Agreement.
O. Breach of Contract -- Lennar Bridges Admission Agreement (Cross-Complaint - Fifteenth Cause of Action)
273. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that at a minimum and without waiving Lennar-Bridges
Cross-Plaintiffs demands for rescission, reformation or declaratory relief above, Marsch and Briarwood are in breach of their
oral, written and implied agreement with Lennar-Bridges Cross-Plaintiff that Marschs admission as a member in Lennar
Bridges is to be governed by the same or substantially identical terms as the HCC Operating Agreement and that he would
prepare and execute an amended and restated operating agreement so providing.
274. Marsch has breached his agreement and has failed to execute the necessary operating agreement for Lennar Bridges.
275. As a direct and proximate result of Marsch and Briarwoods breaches, Lennar-Bridges Cross-Plaintiff has been damaged
in an amount to be proven at trial.
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P. Breach of Implied Covenant of Good Faith and Fair Dealing (By Lennar-Bridges Cross-Plaintiff Against Briarwood
and Marsch: Formation Agreement, HCC Operating Agreement, Override Amendment, Real Estate Sales Facility,
Tolling Agreement, Admission Agreement) (Cross-Complaint - Sixteenth Cause of Action)
276. There is implied into every contract in California a covenant of good faith and fair dealing, which requires at a minimum
that the parties to the Formation Agreement, HCC Operating Agreement, Override Amendment, Tolling Agreement and
Admission Agreement (collectively Agreements) act in a manner of good faith and deal with one another fairly.
277. The implied covenant of good faith and fair dealing required Marsch and Briarwood, among other things, to: (a) refrain
from taking action to deprive Lennar-Bridges Cross-Plaintiff of its benefits under the Agreements; (b) refrain from actions
detrimental to the value of HCCs and Lennar Bridges assets; (c) refrain from accepting fees and other payments from HCC
while knowingly and intentionally acting against the interests of HCC; and (d) refrain from failing to disclose material facts
which, if known, would have caused Lennar-Bridges Cross-Plaintiff not to enter into the Agreements.
278. Marsch and Briarwood breached the implied covenant of good faith and fair dealing by the conduct alleged herein.
279. As a direct and proximate result of Marsch and Briarwoods breaches, Lennar-Bridges Cross-Plaintiff has been damaged
in an amount to be proven at trial.
280. Marsch and Briarwoods breaches of the implied covenant further justify severance of the obligations under Section
5.04 to distribute the Real Estate Sales Facility and grant exclusive rights to provide resale services within The Bridges, and
excuse HCC from any obligation to comply with Section 5.04; and further excuse performance under the Tolling Agreement
and Admission Agreement.
Q. Unfair Competition (Cal. Bus. & Prof. Code 17200) (Cross-Complaint - Seventeenth Cause of Action)
281. The actions of Marsch and Briarwood as alleged herein constitute unlawful, unfair or fraudulent business practices in
violation of California Business and Professions Code 17200 et seq., and acts of unfair competition in violation of the
common law.
282. Based on Marsch and Briarwoods conduct in connection with, among other things, the Override Payment Agreement,
the funding and draws upon the Facility, the Tolling Agreement and the Admission Agreement, The Marsch Parties must
disgorge money previously and improperly paid to them.
R. Constructive Trust (Cross-Complaint- Eighteenth Cause of Action)

283. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that as a result of The Marsch Parties wrongful actions
as alleged herein, The Marsch Parties have been unjustly enriched and hold funds and property to which they are not lawfully
entitled (the precise amount of which cannot be determined without an accounting) as a constructive trustee for the benefit of
HCC and/or Lennar-Bridges Cross-Plaintiff, the true owner of such funds.
284. In the Cross-Complaint, Lennar-Bridges Cross-Plaintiff asserts that as a result of The Marsch Parties failure to comply
with the conditions stated in the Grant Deeds for Homesites 8 and 9, Lennar-Bridges Cross-Plaintiff requests a finding and
order that these properties are held by The Marsch Parties in constructive trust for HCC.
285. As a direct and proximate result of the wrongful actions as alleged herein, in the Cross-Complaint, Lennar-Bridges
Cross-Plaintiff requests that a constructive trust in an amount sufficient to protect its and HCCs interests be imposed upon
all funds, salaries, assets, property, revenues, and profits which have been derived from draws on the Facility, Override Fees,
real estate transfer fees, and other distributions or payments previously made to The Marsch Parties.
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S. Fraud by Misrepresentation and Nondisclosure (Cross-Complaint - Nineteenth Cause of Action)

286. With respect to the La Jolla Judgment and the Override Payment Agreement, Marsch and Briarwood committed fraud as
alleged above.
287. With respect to the Facility, prior to the establishment of the Facility, Marsch and Briarwood represented to
Lennar-Bridges Cross-Plaintiff that $7.5 million would be necessary to pay for expenses related to the Claims under the
Formation Agreement and HCC Operating Agreement. Furthermore, Marsch and Briarwood represented at various times that
funds from the Facility were being used to pay for expenses related to such Claims.
288. The foregoing representations were false when made and made with an intent to deceive and induce Lennar-Bridges
Cross-Plaintiff to rely on them. At or about the time such representations were made, Marsch and Briarwood knew that the
Claims were worth less than $7.5 million and that they were using funds from the Facility to pay for personal expenses.
289. With respect to the Admission Agreement, Marsch and Briarwood committed fraud as alleged above.
290. With respect to the Tolling Agreement, Marsch and Briarwood committed fraud as alleged above.
291. The above representations by Marsch, Briarwood and Foster were false as alleged above. Lennar-Bridges Cross-Plaintiff
actually and justifiably relied on the representations and omissions described herein as alleged above.
292. As alleged above, Marsch and Briarwood made such false representations and failed to disclose Marschs true state of
mind with intent to deceive and in order to induce Lennar-Bridges Cross-Plaintiff to, among other things, modify the
Override Amendment and immediately commence paying Override Fees, fund the Facility, permit HCC to make the 1999
and 2003 Loans, continue to fund HCCs operations and execute the Tolling Agreement and Admission Agreement. In
addition, Foster was under a duty to disclose the true facts to Lennar-Bridges Cross-Plaintiff, but, at Marsch and Briarwoods
direction, willfully failed and refused to do so and concealed those facts from Lennar-Bridges Cross-Plaintiff in breach of his
fiduciary duties to Lennar-Bridges Cross-Plaintiff.
293. As a direct and proximate result of Marsch and Briarwoods conduct, Lennar-Bridges Cross-Plaintiff, HCC and/or
Lennar Bridges have been damaged by, among other things, the following: they made substantial payments of Override Fees
that they would not otherwise have paid; they expended considerable sums to fund Marsch and Briarwoods personal and
non-HCC related expenses; they continued to fund the operations of HCC; they invested millions of dollars in Lennar
Bridges; and they executed the Tolling Agreement and Admission Agreement. Moreover, as a direct and proximate result of
Marsch and Briarwoods conduct, the value of HCC and Lennar Bridges has been damaged. As a result, Lennar-Bridges
Cross-Plaintiff has suffered damages in an amount to be proven at trial.
294. The Marsch Parties fraudulent conduct and breaches of their duties were willful, oppressive, and malicious.
Consequently, Lennar-Bridges Cross-Plaintiff is entitled to punitive damages.
T. Declaratory Relief -- Alter Ego (Cross-Complaint - Twentieth Cause of Action)

295. Lennar-Bridges Cross-Plaintiff is informed and believed and based thereon alleges that Marsch dominated, influenced
and controlled the business, property and affairs of Briarwood and Colony.
296. Lennar-Bridges Cross-Plaintiff is informed and believes and based thereon alleges that, at all times mentioned herein,
there existed and now exists such a unity of interest and ownership between The Marsch Parties that the claimed individuality
and separateness does not exist. Adherence of the fiction that Marsch, Briarwood and Colony are separate with legally
distinct identities would sanction a fraud and promote injustice.
297. Lennar-Bridges Cross-Plaintiff is informed and believes, and based thereon alleges, that, at all times mentioned herein,
Briarwood and Colony are mere shells which Marsch has used, in bad faith, as a conduit for his business, property, and
affairs.
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298. Lennar-Bridges Cross-Plaintiff is informed and believes, and based thereon alleges, that at all times mentioned herein,
Colony and Briarwood have been used by Marsch as obligors for the assumptions of obligations and liabilities which were
the obligations and liabilities of Marsch.
299. If the acts, obligations, and liabilities of Briarwood and Colony are treated as obligations and liabilities separate from
Marschs, an inequitable result will occur.
300. Lennar-Bridges Cross-Plaintiff is informed and believes, and based thereon alleges, that Briarwood and Colony deny
that they are alter egos of Marsch and contend that recognizing their purported separate existences would not sanction a fraud
and promote injustice and that they therefore should be recognized as legally separate entities in a court of law. Accordingly,
a dispute presently exists among the parties that affects their legal rights and for which they require an adjudication by the
court.
U. Trade Name Infringement (Bus. & Prof. Code 14402) (Cross-Complaint - Twenty-First Cause of Action)
301. Lennar-Bridges Cross-Plaintiff is informed and believes that The Marsch Parties, by, through, or in concert with an
affiliated entity called Colony Properties International, have offered and promoted their vacation home rental business using
the Bridges Intellectual Property.
302. The Bridges Intellectual Property has been used by HCC in commerce since 1999 to distinguish The Bridges as an
exclusive residential community and golf course.
303. Neither Lennar-Bridges Cross-Plaintiff nor HCC is a participant in The Marsch Parties vacation home rental business,
and The Marsch Parties use of the Bridges Intellectual Property is false and misleading. The Marsch Parties use of the
Bridges Intellectual Property is likely to cause confusion as to the sponsorship or approval of The Marsch Parties vacation
home rental business.
304. Accordingly, Lennar-Bridges Cross-Plaintiff, on behalf of HCC, seeks damages for past violations and an injunction
restraining The Marsch Parties from using the Bridges Intellectual Property to promote the vacation home rental business of
Colony Properties International, or otherwise.
VIII. STATE LAW CLAIMS IN THE FLORIDA ACTION

A. Civil Remedies Against Criminal Practices Act (Fla. Stat. 772.101, et seq.) (Florida Action, Count I)
306. By the acts described above, defendants Marsch and Minkow have willfully and maliciously engaged in a pattern of
wrongful activity intended to cause harm to Lennar-Florida Plaintiff in violation of the Civil Remedies Against Criminal
Practices Act, Fla. Stat. 772.101, et seq. Marsch and Minkow, along with other separate and independent entities and
individuals, have acted with criminal intent and have associated together in a continuing unit for the common purpose of
profiting from their illegal activity.
307. In particular, Marsch and Minkow (a) have, with criminal intent, received proceeds derived from a pattern of criminal
activity and used the proceeds for the operation of the enterprise, in violation of Fla. Stat. 772.103(1); (b) maintain an
interest in the control and operation of an enterprise, in violation of Fla. Stat. 772.103(2); (c) associated with others to
conduct and participate in the criminal activity of an enterprise, in violation of Fla. Stat. 772.103(3); and (d) conspired with
others and endeavored to violate Fla. Stat. 772.103(1),(2), and (3), in violation of Fla. Stat. 772.103(4).
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308. The objectives of the illegal enterprise are and were: (a) to extort money and property from Lennar-Florida Plaintiff and
its management by transmitting threatening letters; (b) to extort money from Lennar-Florida Plaintiff and its management by
making knowingly false statements in these threatening letters; (c) to extort money and property from Lennar-Florida
Plaintiff and its management by transmitting threatening letters that were intended to, and did in fact, interfere with
Lennar-Florida Plaintiffs business relationship with Quadrant; (d) to extort money and property from Lennar-Florida
Plaintiff and its management by threatening to disclose and in fact disclosing false negative statements about Lennar-Florida
Plaintiff and its executives; (e) to extort money and property from Lennar-Florida Plaintiff by manipulating the public
markets for Lennar-Florida Plaintiffs securities and undermining confidence in Lennar-Florida Plaintiff; and (f) to defame
Lennar-Florida Plaintiff to Florida residents and publicly in an effort to damage Lennar-Florida Plaintiff.
309. Lennar-Florida Plaintiff has been injured by the willful and malicious extortion scheme and other fraudulent and
wrongful conduct in an amount that is presently unknown but is in excess of $100 million, including but not limited to the
substantial loss of market capitalization of Lennar Corporation, reputational harm, damaged credit rating, compromised
ability to borrow capital, devalued equity offerings, and impaired the day-to-day, long-term, and strategic operations of the
company, among other things.
310. Lennar-Florida Plaintiff has been injured by reason of violations of Fla. Stat. 772.103(1), (2), (3) and (4), and therefore
is entitled to actual damages in excess of $100 million, threefold the actual damages for an amount in excess of $300 million,
and costs and reasonable attorneys fees, pursuant to Fla. Stat. 772.104(1).
B. Intentional Interference with Contractual and Economic Relations (Florida Action, Count II)
311. The Defendants conduct as described above constitutes intentional interference with contractual and economic
relations. By the acts described above, the Marsch Parties willfully and maliciously intended to, and did in fact, cause harm to
Lennar-Florida Plaintiff by disrupting and interfering with the economic and contractual relationship between Lennar-Florida
Plaintiff and Quadrant. As a direct and proximate cause of the acts described above, Lennar-Florida Plaintiff suffered
significant economic harm, including but not limited to more than $50 million in losses in connection with the project. The
Marsch Parties committed such acts maliciously, oppressively and fraudulently, with ill will and an evil intent to damage
Lennar-Florida Plaintiff.
C. Defamation Per Se (Florida Action, Count III)

312. The Defendants conduct as described above constitutes defamation per se under Florida law. Defendants willfully and
maliciously made false, defamatory, and unprivileged statements, knew their statements were false and acted with disregard
of their falsity, intended to cause Lennar-Florida Plaintiff severe damage, and, in fact, caused Lennar-Florida Plaintiff
millions of dollars in harm to its reputation, stock price, operations, and ability to raise capital
313. Lennar-Florida Plaintiff suffered damages proximately caused by the Marsch Parties and Minkow Parties libelous
actions, including but not limited to the substantial loss of market capitalization of Lennar Corporation, reputational harm,
damaged credit rating, compromised ability to borrow capital, devalued equity offerings, and impaired the day-to-day,
long-term, and strategic operations of the company (among other things)--an amount that is currently unknown but in excess
of $100 million. Nonetheless, the Marsch Parties and Minkow Parties published such false statements recklessly and in
conscious disregard of the truth. Further, the Marsch Parties and Minkow Parties committed such acts maliciously,
oppressively, and fraudulently, with ill will and an evil intent to defame and injure Lennar-Florida Plaintiff.
D. Florida Deceptive and Unfair Trade Practices Act (Fla. Stat. 501.204) (Florida Action, Count IV)
314. By the acts described above, the Marsch Parties and Minkow Parties have engaged in unfair, deceptive and
unconscionable acts or practices in violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. 501.201, et
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seq.
315. The Marsch Parties and Minkow Parties acted willfully and maliciously in conducting their unconscionable and
deceptive acts and practices that were designed to inflict injury and harm upon Lennar-Florida Plaintiff (and, in fact, did
cause injury and harm to Lennar-Florida Plaintiff) and to gain an unfair business advantage. The Marsch Parties and Minkow
Parties have maliciously and malevolently impugned Lennar-Florida Plaintiffs business operations and reputation in order to
secure an improper business advantage. The Marsch Parties have also maliciously and malevolently interfered with
Lennar-Florida Plaintiffs business relationship with Quadrant.
316. Lennar-Florida Plaintiff has been injured by virtue of the Marsch Parties and Minkow Parties deceptive and unfair
trade practices as contemplated by Fla. Stat. 501.204 in an amount that is currently unknown but in excess of $100 million,
including but not limited to the substantial loss of market capitalization of Lennar Corporation, reputational harm, damaged
credit rating, compromised ability to borrow capital, devalued equity offerings, and impaired the day-to-day, long-term, and
strategic operations of the company, among other things. Additionally, Lennar-Florida Plaintiff is entitled to recover its
attorneys fees and court costs pursuant to Fla. Stat. 501.2105 and 501.211.
E. Civil Conspiracy (Florida Action, Count V)

317. By the acts described above, the Marsch Parties and the Minkow Parties have willfully and maliciously committed civil
conspiracy under Florida law. The Marsch Parties and Minkow Parties wrongfully conspired (a) to extort money and property
from Lennar-Florida Plaintiff and its management by transmitting threatening letters; (b) to extort money from
Lennar-Florida Plaintiff and its management by making knowingly false statements in these threatening letters; (c) to extort
money and property from Lennar-Florida Plaintiff and its management by transmitting threatening letters that were intended
to, and did in fact, interfere with Lennar-Florida Plaintiffs business relationship with Quadrant; (d) to extort money and
property from Lennar-Florida Plaintiff and its management by threatening to disclose and in fact disclosing false negative
statements about Lennar-Florida Plaintiff and its executives; (e) to extort money and property from Lennar-Florida Plaintiff
by manipulating the public markets for Lennar-Florida Plaintiffs securities and undermining confidence in Lennar-Florida
Plaintiff; and (f) to defame Lennar-Florida Plaintiff to Florida residents and publicly in an effort to damage Lennar-Florida
Plaintiff.
318. Lennar-Florida Plaintiff has been injured by the Marsch Parties and Minkow Parties extortion scheme and the
fraudulent and wrongful conduct described above in an amount that is presently unknown but is in excess of $100 million,
including but not limited to the substantial loss of market capitalization of Lennar Corporation, reputational harm, damaged
credit rating, compromised ability to borrow capital, devalued equity offerings, and impaired the day-today, long-term, and
strategic operations of the company, among other things.
IX. NON-DISCHARGEABILITY - DLA 1 CLAIMS

COUNT ONE
(Determination Regarding Non-Dischargeability of Lennar-DLA 1 Plaintiffs Claims in the DLA1 Action Pursuant to
Bankruptcy Code Section 523(a)(6))
319. Plaintiff incorporates by reference paragraphs 1 through 318 above, inclusive, and each and every such paragraph by
320. Marschs conduct when he conspired to breach fiduciary duties (Fifth Cause of Action in the DLA1 Action) was (a)
willful, in that Marsch intended to cause harm to Lennar-DLA 1 Plaintiff, (b) malicious, in that it was wrongful, done
intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury
to Lennar-DLA 1 Plaintiff. Therefore, Marschs liability to Lennar-DLA 1 Plaintiff for such conduct should be determined to
115
be non-dischargeable under 11 U.S.C. 523(a)(6).

321. Marschs conduct when he aided and abetted breaches of fiduciary duties (Sixth Cause of Action in DLA1 Action) was
(a) willful, in that Marsch intended to cause harm to Lennar-DLA 1 Plaintiff, (b) malicious, in that it was wrongful, done
322. Marschs conduct when he interfered with a contractual relationship (Seventh Cause of Action in DLA1 Action) was (a)
willful, in that Marsch intended to cause harm to Lennar-DLA 1 Plaintiff, (b) malicious, in that it was wrongful, done
X. NON-DISCHARGEABLITITY - DLA 2 CLAIMS

COUNT TWO
(Determination Regarding Non-Dischargeability of Claims in the DLA2 Action Pursuant to Bankruptcy Code Section
523(a)(6))
324. Marschs conduct described above in adding and abetting DLA and Fosters breaches of fiduciary duty (Seventh Cause
of Action in the DLA 2 Action) was (a) willful, in that Marsch intended to cause harm to Lennar-DLA 2 Plaintiff, HCC and
Lennar Bridges, (b) malicious, in that it was wrongful, done intentionally, necessarily caused injury, and was committed
without cause or excuse, and (c) in fact, caused substantial injury to Lennar-DLA 2 Plaintiff, HCC and Lennar Bridges.
Therefore, Marschs liability for such conduct should be declared non-dischargeable under 11 U.S.C. 523(a)(6).
325. Marschs conduct when he intentionally interfered with Lennar-DLA 2 Plaintiff, HCC and Lennar Bridges contracts
with DLA and Foster (Eighth Cause of Action in the DLA2 Action) was (a) willful, in that Marsch intended to cause harm to
Lennar-DLA 2 Plaintiff, HCC and Lennar Bridges, (b) malicious, in that it was wrongful, done intentionally, necessarily
caused injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury to Lennar-DLA 2
Plaintiff, HCC and Lennar Bridges. Therefore, Marschs liability to Lennar-DLA 2 Plaintiff for such conduct should be
declared non-dischargeable under 11 U.S.C. 523(a)(6).
XI. NON-DISCHARGEABILITY - THE BRIDGES COUNTER-CLAIM

COUNT THREE
(Determination that Cross-Claims in the Bridges Action are Not Dischargeable Pursuant to Bankruptcy Code Section
523(a)(2)(A))
327. Marsch, as described above, borrowed funds under the 1999 Loan from HCC (a) using misrepresentation, fraudulent
116
omission or deceptive conduct, (b) with knowledge of the falsity or deceptiveness of his statement or conduct, and (c) with an
intent to deceive Lennar-Bridges Cross-Plaintiff and HCC. Lennar-Bridges Cross-Plaintiff and HCC justifiably relied on
Marschs statements and/or conduct and have incurred substantial damages proximately caused by their reliance on Marschs
statements or conduct. Marsch entered into the 1999 Loan with Lennar-Bridges Cross-Plaintiff under the pretense that the
money would be used by Marsch to purchase Homesites 8 and 9 on which Marsch agreed to develop single-family residences
within a specified amount of time. Marsch promised to repay the loan on the terms set forth in the 1999 Loan Agreement. At
the time Marsch obtained the 1999 Loan from HCC, Marsch did not intend to comply with his obligation to construct
residences on the Homesites 8 and 9, did not intend to repay HCC, and intended to deceive Lennar-Bridges Cross-Plaintiff
and HCC into making the 1999 Loan. By virtue of the actions alleged above and described herein, any liability of Marsch to
HCC or Lennar-Bridges Cross-Plaintiff for breach of the 1999 Loan (CounterClaim, First Cause of Action) or for failure to
re-pay the 1999 Loan (Counter-Claim, Second Cause of Action) should be determined to be non-dischargeable pursuant to
Bankruptcy Code Section 523(a)(2)(A).
328. Marsch, as described above, received the benefit of the purchase of Homesites 8 and 9 (a) using misrepresentation,
fraudulent omission or deceptive conduct, (b) with knowledge of the falsity or deceptiveness of his statement or conduct, and
(c) with an intent to deceive Lennar-Bridges Cross-Plaintiff and HCC. Lennar-Bridges Cross-Plaintiff and HCC justifiably
relied on Marschs statements and/or conduct and have incurred substantial damages proximately caused by their reliance on
Marschs statements or conduct. In connection with the purchase of Homesites 8 and 9, Marsch entered into the Master
Declaration, Repurchase Agreement, Grant Deeds and other related agreements, including but not limited to the 1999 Loan
under the pretense that Marsch would comply with the conditions set forth therein. Marsch promised to comply with the
express conditions set forth in the Master Declaration, Repurchase Agreement and Grant Deeds. At the time Marsch entered
into these agreements, Marsch did not intend to comply with the conditions set forth therein. By virtue of the actions alleged
above and described herein, any liability of Marsch to HCC or Lennar-Bridges Cross-Plaintiff as a result of Marschs failure
to comply with the Master Declaration, Repurchase Agreement, Grant Deeds and all related agreements, including but not
limited to the 1999 Loan (Counter-Claim, Third Cause of Action), should be determined to be non-dischargeable pursuant to
329. Marsch, as described above, borrowed funds under the 2003 Loan from HCC (a) using misrepresentation, fraudulent
statements or conduct. Marsch entered into the 2003 Loan with HCC after making false representations to HCC and
Lennar-Bridges Cross-Plaintiff and failing to disclose his true state of mind in his business relationship with HCC and
Lennar-Bridges Cross-Plaintiff. Marsch promised to repay the loan on the maturity date set forth in the 2003 Loan
Agreement. At the time Marsch obtained the 2003 Loan from HCC, Mr. Marsch did not intend to repay HCC, and intended
to deceive HCC and Lennar-Bridges Cross-Plaintiff into making the 2003 Loan. By virtue of the actions alleged above and
described herein, any liability to HCC or Lennar-Bridges Cross-Plaintiff for breach of the 2003 Loan (Counter-Claim, Fourth
Cause of Action) or for failure to re-pay the 2003 Loan (Counter-Claim, Fifth Cause of Action) should be determined to be
non-dischargeable pursuant to Bankruptcy Code Section 523(a)(2)(A).
330. Marsch, as described above, received the benefit of the Formation Agreement, HCC Operating Agreement, and the
Override Amendment (a) using misrepresentation, fraudulent omission or deceptive conduct, (b) with knowledge of the
falsity or deceptiveness of his statement or conduct, and (c) with an intent to deceive Lennar-Bridges Cross-Plaintiff and
HCC. Lennar-Bridges Cross-Plaintiff and HCC justifiably relied on Marschs statements and/or conduct in entering into the
Formation Agreement, HCC Operating Agreement, Override Amendment and have incurred substantial damages proximately
caused by their reliance on Marschs statements or conduct. By virtue of the actions alleged above, any liability of Marsch to
Lennar-Bridges Cross-Plaintiff as a result of Marschs breaches of the Formation Agreement, HCC Operating Agreement and
Override Amendment (Counter-Claim, Sixth Cause of Action) should be determined to be non-dischargeable, pursuant to
331. Marsch, as described above, received the benefit of the Admission Agreement (a) using misrepresentation, fraudulent
intent to deceive Lennar-Bridges Cross-Plaintiff and HCC. Lennar-Bridges Cross-Plaintiff and HCCs justifiably relied on
Marschs statements and/or conduct in entering into the Admission Agreement and have incurred substantial damages
117
proximately caused by their reliance on Marschs statements and/or conduct. By virtue of the actions alleged above, any
liability of Marsch to Lennar-Bridges Cross-Plaintiff as a result of Mr. Marschs breach of the Admissions Agreement
(Counter-Claim, Fifteenth Cause of Action) should be determined to be non-dischargeable pursuant to Bankruptcy Code
Section 523(a)(2)(A).
332. Marsch, as described above, received the benefits of the Formation Agreement, HCC Operating Agreement, Override
Amendment, Tolling Agreement and Admission Agreement (a) using misrepresentation, fraudulent omission or deceptive
conduct, (b) with knowledge of the falsity or deceptiveness of his statement or conduct, and (c) with an intent to deceive
Lennar-Bridges Cross-Plaintiff and HCC. Lennar-Bridges Cross-Plaintiff and HCC justifiably relied on Marschs statements
and/or conduct in entering into the Formation Agreement, HCC Operating Agreement, Override Amendment, Tolling
Agreement and Admissions Agreement and have incurred substantial damages proximately caused by their reliance on
Marschs statements and/or conduct. By virtue of the actions alleged above, any liability of Marsch to Lennar-Bridges
Cross-Plaintiff as a result of Marschs breach of the implied covenant of good faith and fair dealing in the Formation
Agreement, HCC Operating Agreement, Override Amendment, Tolling Agreement and Admission Agreement
(Cross-Complaint, Sixteenth Cause of Action) should be determined to be non-dischargeable pursuant to Bankruptcy Code
333. Marsch, as described above, received the benefit of, among other things, the Formation Agreement, the Facility, the
HCC Operating Agreement, the Override Payment Agreement, the Override Amendment, Tolling Agreement and Admission
Agreement (a) using misrepresentation, fraudulent omission or deceptive conduct, (b) with knowledge of the falsity or
deceptiveness of his statement or conduct, and (c) with an intent to deceive Lennar-Bridges Cross-Plaintiff and HCC.
Lennar-Bridges Cross-Plaintiff and HCC justifiably relied on Marschs statements and/or conduct and have incurred
substantial damages proximately caused by their reliance on Marschs statements and/or conduct. By virtue of the actions
alleged above, any liability of Marsch to Lennar-Bridges Cross-Plaintiff or HCC as a result of Marschs violation of the
California Business and Professions Code, 17200 et seq., and acts of unfair competition in violation of common law
(Cross-Complaint, Seventeenth Cause of Action) should be determined to be non-dischargeable pursuant to Bankruptcy Code
334. Marsch, as described above, has been unjustly enriched and holds funds and property and funds to which he his not
lawfully entitled that he obtained (a) using misrepresentation, fraudulent omission or deceptive conduct, (b) with knowledge
of the falsity or deceptiveness of his statement or conduct, and (c) with an intent to deceive Lennar-Bridges Cross-Plaintiff
and HCC. Lennar-Bridges Cross-Plaintiff and HCC justifiably relied on Marschs statements and/or conduct and have
incurred substantial damages proximately caused by their reliance on Marschs statements and/or conduct. By virtue of the
actions alleged above, any liability of Marsch to Lennar-Bridges Cross-Plaintiff or HCC as a result of Marschs wrongful
actions as alleged herein (Cross-Complaint, Eighteenth Cause of Action) should be determined to be non-dischargeable
pursuant to Bankruptcy Code Section 523(a)(2)(A).
335. Marsch, as described above, received the benefit of the funds in the Facility, the Formation Agreement, the Facility, the
Override Payment Agreement, Tolling Agreement and Admission Agreement (a) using misrepresentation, fraudulent
statements and/or conduct. By virtue of the actions alleged above, any liability of Marsch to Lennar-Bridges Cross-Plaintiff
or HCC as a result of Marschs fraudulent misrepresentations and non-disclosures (Cross-Complaint, Nineteenth Cause of
Action) should be determined to be non-dischargeable pursuant to Bankruptcy Code Section 523(a)(2)(A).
COUNT FOUR
(Determination that Cross-Claims in the Bridges Action Are Not Dischargeable Pursuant to Bankruptcy Code Section
523(a)(4))
118

337. Marschs conduct described above (Cross-Complaint, Eighth Cause of Action) with respect the Facility and the Override
Fees constitutes embezzlement and/or larceny. Mr. Marsch was entrusted with the funds in the Facility for the payment of
Claims and Mr. Marsch fraudulently used funds from the Facility to pay personal or business expenses not related to the
Claims. Moreover, Mr. Marsch wrongfully dispossessed HCC of its property by wrongfully withdrawing and retaining
proceeds from the Facility for expenses unrelated to the Claims and wrongfully obtaining and retaining Override Fees.
Therefore, Mr. Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be
non-dischargeable under 11 U.S.C. 523(a)(4).
338. Marschs conduct described above (Twenty-First Cause of Action, Bridges Counter-Claim) with respect the Bridges
Intellectual Property constitutes embezzlement or larceny. Marsch was entrusted with the Bridges Intellectual Property to
promote and distinguish The Bridges as an exclusive residential community and golf course and Marsch wrongfully offered
and promoted his vacation home rental business using the Bridges Intellectual Property. Moreover, Marsch wrongfully
dispossessed HCC of the Bridges Intellectual Property when he used the Bridges Intellectual Property for his vacation home
rental business. Therefore, Mr. Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff for such conduct should be
determined to be non-dischargeable under 11 U.S.C. 523(a)(4)
COUNT FIVE
(Determination that Cross-Claims in the Bridges Action Are Not Dischargeable Pursuant to Bankruptcy Code Section
523(a)(6))
340. Marschs conduct, as described above, with respect to the breach of the 1999 Loan (Counter-Claim, First Cause of
Action) was (a) willful, in that Mr. Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious,
in that it was wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in
fact, caused substantial injury to HCC and Lennar-Bridges Cross-Plaintiff. Therefore, Marschs liability to HCC or
Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
341. Marschs conduct, as described above, with respect to the failure to pay the 1999 Loan (Counter-Claim, Second Cause
of Action) was (a) willful, in that Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious,
342. Marschs conduct, as described above, with respect to the breach of the Master Declaration, Repurchase Agreement and
Grant Deeds (Counter-Claim, Third Cause of Action) was (a) willful, in that Marsch intended to cause harm to
Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily caused injury, and was
committed without cause or excuse, and (c) in fact, caused substantial injury to Lennar-Bridges Cross-Plaintiff. Therefore,
Marschs liability to Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be non-dischargeable under 11
U.S.C. 523(a)(6).
343. Marschs conduct, as described above, with respect to the failure to the breach of the Master Declaration, Repurchase
Agreement and Grant Deeds (Counter-Claim, Third Cause of Action) was (a) willful, in that Marsch intended to cause harm
to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily caused
injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury to HCC and Lennar-Bridges
Cross-Plaintiff. Therefore, Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff for such conduct should be
determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
119
344. Marschs conduct, as described above, with respect to the breach of the 2003 Loan (Counter-Claim, Fourth Cause of
Action) was (a) willful, in that Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious, in
that it was wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in
345. Marschs conduct, as described above, with respect to the failure to pay the 2003 Loan (Counter-Claim, Fifth Cause of
Action) was (a) willful, in that Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious, in
that it was wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in
346. Marschs conduct, as described above, with respect to the breach of the Formation Agreement, HCC Operating
Agreement and Override Amendment (Counter-Claim, Sixth Cause of Action) was (a) willful, in that Marsch intended to
cause harm to Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily caused
injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury to Lennar-Bridges
Cross-Plaintiff. Therefore, Marschs liability to Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be
347. Marschs conduct, as described above, with respect to the conversion related to the Facility and the Override Fees
(Counter-Claim, Eighth Cause of Action) was (a) willful, in that Marsch intended to cause harm to HCC and Lennar-Bridges
Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily caused injury, and was committed
without cause or excuse, and (c) in fact, caused substantial injury to HCC and Lennar-Bridges Cross-Plaintiff. Therefore,
Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be non-dischargeable
under 11 U.S.C. 523(a)(6).
348. Marschs conduct, as described above, with respect to the breach of the Admissions Agreement (Counter-Claim,
Fifteenth Cause of Action) was (a) willful, in that Marsch intended to cause harm to Lennar-Bridges Cross-Plaintiff, (b)
malicious, in that it was wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse,
and (c) in fact, caused substantial injury to Lennar-Bridges Cross-Plaintiff. Therefore, Marschs liability to Lennar-Bridges
Cross-Plaintiff for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
349. Marschs conduct, as described above, with respect to the breach of the implied covenant of good faith and fair dealing
in the Formation Agreement, HCC Operating Agreement, Override Amendment, Tolling Agreement and Admission
Agreement (CounterClaim, Sixteenth Cause of Action) was (a) willful, in that Marsch intended to cause harm to
Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily caused injury, and was
committed without cause or excuse, and (c) in fact, caused substantial injury to Lennar-Bridges Cross-Plaintiff. Therefore,
Marschs liability to Lennar-Bridges Cross-Plaintiff for such conduct should be determined to be non-dischargeable under 11
U.S.C. 523(a)(6).
350. Marschs conduct, as described above, in violation of California Business and Professional Code 17200 et seq., and
acts of unfair competition in violation of the common law (Counter-Claim, Seventeenth Cause of Action) was (a) willful, in
that Mr. Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful,
done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in fact, caused substantial
injury to HCC and Lennar-Bridges Cross-Plaintiff. Therefore, Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff
for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
351. Marschs conduct, as described above, committing wrongful actions for which he has been unjustly enriched and holds
property to which he is not lawfully entitled (Counter-Claim, Eighteenth Cause of Action) was (a) willful, in that Marsch
intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious, in that it was wrongful, done intentionally,
necessarily caused injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury to HCC and
Lennar-Bridges Cross-Plaintiff. Therefore, Marschs liability to HCC or Lennar-Bridges Cross-Plaintiff for such conduct
should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
120
352. Marschs conduct, as described above, committing fraudulent nondisclosures and misrepresentations (Counter-Claim,
Nineteenth Cause of Action) was (a) willful, in that Marsch intended to cause harm to Lennar-Bridges Cross-Plaintiff, (b)
and (c) in fact, caused substantial injury to Lennar-Bridges Cross-Plaintiff. Therefore, Marschs liability to Lennar-Bridges
Cross-Plaintiff for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
353. Marschs conduct, as described above, infringing the Bridges Intellectual Property (Counter-Claim, Tweny-First Cause
of Action) was (a) willful, in that Marsch intended to cause harm to HCC and Lennar-Bridges Cross-Plaintiff, (b) malicious,
XII. NON-DISCHARGEABILITY - FLORIDA ACTION

COUNT SIX
(Determination Regarding Non-Dischargeability of Lennar-Florida Plaintiffs Claims in the Florida Action Pursuant
to Bankruptcy Code Section 523(a)(6))
355. Marschs conduct, and that of the Minkow Parties acting at Marschs direction, described above in violation of the
Florida Civil Remedies Against Criminal Practice Act (Fla. Stat. 772.101, et seq.) (Count I in the Florida Action) was (a)
willful, in that Marsch intended to cause harm to Lennar-Florida Plaintiff, (b) malicious, in that it was wrongful, done
to Lennar-Florida Plaintiff. Therefore, Marschs liability to Lennar-Florida Plaintiff for such conduct should be declared
356. Marschs conduct, and that of the Minkow Parties acting at Marschs direction, when they intentionally interfered with
the economic and contractual relationship with between Lennar-Florida Plaintiff and Quadrant (Count II in the Florida
Action) was (a) willful, in that Mr. Marsch intended to cause harm to Lennar-Florida Plaintiff, (b) malicious, in that it was
wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in fact, caused
substantial injury to Lennar-Florida Plaintiff. Therefore, Marschs liability to Lennar-Florida Plaintiff for such conduct
should be declared non-dischargeable under 11 U.S.C. 523(a)(6).
357. Marschs defamatory conduct, and that of the Minkow Parties acting at Marschs direction, described above (Count III
in the Florida Action) was (a) willful, in that Marsch intended to cause harm to Lennar-Florida Plaintiff, (b) malicious, in that
it was wrongful, done intentionally, necessarily caused injury, and was committed without cause or excuse, and (c) in fact,
caused substantial injury to Lennar-Florida Plaintiff. Therefore, Marschs liability to Lennar-Florida Plaintiff for such
conduct should be declared non-dischargeable under 11 U.S.C. 523(a)(6).
358. Marschs conduct, and that of the Minkow Parties acting at Marschs direction, in violation of the Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat. 501.201, et seq., (Count IV in the Florida Action) was (a) willful, in that Marsch
intended to cause harm to Lennar-Florida Plaintiff, (b) malicious, in that it was wrongful, done intentionally, necessarily
caused injury, and was committed without cause or excuse, and (c) in fact, caused substantial injury to Lennar-Florida
Plaintiff. Therefore, Marschs liability to Lennar-Florida Plaintiff for such conduct should be declared non-dischargeable
under 11 U.S.C. 523(a)(6).
359. Marschs conduct, and that of the Minkow Parties acting at Marschs direction, in violation of Floridas civil conspiracy
law (Count V in the Florida Action) was (a) willful, in that Marsch intended to cause harm to Lennar-Florida Plaintiff, (b)
121
and (c) in fact, caused substantial injury to Lennar-Florida Plaintiff. Therefore, Marschs liability to Lennar-Florida Plaintiff
for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(6).
COUNT SEVEN
(Determination Regarding Non-Dischargeability of Lennar-Florida Plaintiffs Claims in the Florida Action Pursuant
to Bankruptcy Code Section 523(a)(19))
360. Marschs conduct, and that of the Minkow Parties acting at Marschs direction, described above in violation of the
Florida Civil Remedies Against Criminal Practice Act (Fla. Stat. 772.101, et seq.) (Count I in the Florida Action) included
acting with an illegal enterprise to extort money and property from Lennar-Florida Plaintiff by manipulating the public
markets for Lennar-Florida Plaintiffs securities and undermining confidence in Lennar-Florida Plaintiff. On information and
belief, Lennar-Florida Plaintiff alleges that the Minkow Parties, acting at the direction of the Marsch, among other things, (a)
publicly disseminated false, fraudulent, and deceitful information intended to affect the price of Lennars publicly-traded
securities and that their false, fraudulent, and deceitful information affected people making decisions in connection with the
purchase or sale of Lennars publicly-traded securities; and (b) took short positions on Lennar Corporations stock. Such
actions were done to harm Lennar-Florida Plaintiff, did in fact harm Lennar-Florida Plaintiff, and amounted to fraud, deceit
and manipulation in connection with the purchase or sale of securities. Therefore, Marschs liability to Lennar-Florida
Plaintiff for such conduct should be determined to be non-dischargeable under 11 U.S.C. 523(a)(19).
PRAYER FOR RELIF

WHEREFORE, Plaintiffs pray for judgment against Marsch as follows:
1. That the Court enter an Order determining that any liability of Marsch with respect to the Fifth, Sixth, and/or Seventh
Causes of Action in the DLA1 Action may not be discharged in the Bankruptcy Case, pursuant to 11 U.S.C. 523(a)(6); and
2. That the Court enter an Order determining that any liability of Marsch with respect to the Seventh or Eighth Causes of
Action in the DLA 2 Action may not be discharged in the Bankruptcy Case pursuant to 11 U.S.C. 523(a)(6); and
3. That the Court enter an Order stating that any liability of Marsch with respect to the First Cause of Action, Second Cause
of Action, Third Cause of Action, Fourth Cause of Action, Fifth Cause of Action, Sixth Cause of Action, Eighth Cause of
Action, Fifteenth Cause of Action, Sixteenth Cause of Action, Seventeenth Cause of Action, Eighteenth Cause of Action,
Nineteenth Cause of Action and/or Twenty-First Cause of Action in Lennar-Bridges Cross-Plaintiffs Cross-Complaint in the
Bridges Action may not be discharged in the Bankruptcy Case, pursuant to 11 U.S.C. 523(a)(2)(A), 523(a)(4), and/or
523(a)(6); and
4. That the Court enter an Order determining that any liability of Marsch with respect to Counts I, II, III, IV, and/or V in the
Florida Action may not be discharged in the Bankruptcy Case, pursuant to 11 U.S.C. 523(a)(6) and 523(a)(19); and
5. For such other and further relief as the Court deems just and proper.
DATED: May 24, 2010
BEN H. LOGAN
DANIEL PETROCELLI
DAVID MARROSO
122
OMELVENY & MYERS LLP

By /s/ Ben H. Logan
Ben H. Logan
Counsel for Lennar Corporation, Lennar
Homes of California, Inc., Lennar Land
Partners II, LLP II HCC Holdings, LLC,
Lennar San Jose Holdings, Inc.; individually
and derivatively on behalf of HCC Investors,
LLC and Lennar Bridges, LLC
End of Document
123
Notice of Motion and Motion for Summary Judgment or,

Altenatively, Summary, Adjudication
Sallie A. DURHAM, an individual on behalf of herself and all others similarly situated, Plaintiff, v. CONTINENTAL
CENTRAL CREDIT, INC., a California Corporation; San Clemente Cove Vacation Owners Association, a California
Corporation; and Vacation Resorts International, Inc., a California Corporation, and Does 1 through 10, Inclusive.,
Defendants. | United States District Court, S.D. California.
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Comment:
Sallie A. DURHAM, an individual on behalf of herself and..., 2009 WL 3601716...
2009 WL 3601716 (S.D.Cal.) (Trial Motion, Memorandum and Affidavit)

Sallie A. DURHAM, an individual on behalf of herself and all others similarly situated, Plaintiff,
v.
CONTINENTAL CENTRAL CREDIT, INC., a California Corporation; San Clemente Cove Vacation Owners
Association, a California Corporation; and Vacation Resorts International, Inc., a California Corporation, and
Does 1 through 10, Inclusive., Defendants.
No. 307CV01763.
May 22, 2009.
Date: June 19, 2009
Time: 11:00 a.m.
Room: 15
per Chambers No Oral Argument unless Requested By the Court
Notice of Motion and Motion for Summary Judgment or, Altenatively, Summary, Adjudication
Michael E. Williams (SB: 095594), Attorney at Law, 5611 Palmer Way, Suite G2, Carlsbad, CA 92010, (760) 931-1748,
(760) 931-0755 (fax), Attorney for Defendants Continental Central Credit, Inc., a California Corporation, San, Clemente
Cove Vacation Owners Association, a California Corporation, and, Vacation Resorts International, Inc. A California
Corporation.
Judge: Barry Ted Moskowitz.
TABLE OF CONTENTS
I. INTRODUCTION .........................................................................................................................................................................
II. SUMMARY OF UNCONTROVERTED FACTS ............................................................................................................
III. THE LEGAL STANDARDS FOR SUMMARY JUDGMENT IS SATISFIED ..................................................
IV. ARGUMENT AND AUTHORITY ......................................................................................................................................
FIRST CAUSE OF ACITON: PLAINTIFFS FIRST FDCPA THEORY FAILS AS A MATTER OF LAW,
FOR SEVERAL REASONS ..........................................................................................................................................................
A. ISSUE ONE: 15 USC 1692f(1) Provides CCC With a Complete Defense to the Actions Complained
of, As a Matter of Law ......................................................................................................................................................................
B. ISSUE TWO: Defendant CCC is Entitled to Make a Profit and Is Not Limited to Recovering Its Actual
Costs of Collection as Fees, Thus Plaintiff Cannot Prevail on Her 15 USC 1692f(1) Action, As a as a
Matter of Law ......................................................................................................................................................................................
C. ISSUE THREE: What is a Reasonable Collection Fee is Determined by Market Forces, As A Matter of
Law ..........................................................................................................................................................................................................
10
D. ISSUE FOUR: Plaintiff Cannot Rely on Inapposite Authority Governing Liquidated Damages, Which
Are Not Involved Here, to Try and Create an Alleged Violation of Law-Or a Triable Issue of Fact-Where
None Exist .............................................................................................................................................................................................
11
125
PLAINTIFFS OTHER FDCPA THEORIES FAIL AS A MATTER OF LAW .........................................................
13
E. ISSUE FIVE: CCCs Notices Did Not Violate 15 USC 1692e .................................................................................
13
F. ISSUE SIX: CCCs Collection Notices Did Not Violate 15 USC 1692g ............................................................
14
G. ISSUE SEVEN: CCC Made No False Representations to Plaintiff. ..........................................................................
18
SECOND CAUSE OF ACTION: PLAINTIFFS CALIFORNIA ROSENTHAL ACT CLAIM FAILS AS

A MATTER OF LAW, FOR SEVERAL REASONS ...........................................................................................................
19
H. ISSUE EIGHT: Plaintiffs Case Falls Outside the Scope of the Rosenthal Act Because it Does Not
Involve the Extension of Credit .....................................................................................................................................................
19
I. ISSUE NINE: Defendants Made No False Representations ...........................................................................................
20
J. ISSUE TEN: The Rosenthal Act Does Not Apply to the Association, As a Matter of Law ................................
20
K. ISSUE ELEVEN: An Absolute Defense Exists Under the Rosenthal Acts Safe Harbor Provision ..........
21
V. CONCLUSION .............................................................................................................................................................................
23
TABLE OF AUTHORITIES
FEDERAL CASES
Anderson v. Credit Collection Services (S. D. Cal. 2004) 322
F. Supp. 2d 1094 ........................................................................................
16
AT&T Wireless Svc. of Cal. LLC v. City of Carlsbad (S.D.

Cal. 2003) 308 F. Supp. 2d 1148 .........................................................
Ballard v. Equifax (N. D. Cal. 1998) 27 F. Supp. 2d 1201 .........
5, 17
Celotex Corp. v. Catrett, 477 U.S. 317 ..............................................
Duffy v. Leading Edge Productions (5th Cir. 1995) 44 F.3d

308 ..................................................................................................................
Garneau v. City of Seattle (9th Cir. 1998) 147 F.3d 802, 807 ...
Hernandez v. Carmona (9th Cir. 1988) 138 F.3d 393 ..................
Hunt v. Check Recovery Systems, Inc. (2007) 178 F. Supp.2d

1157 ..............................................................................................................
Luna v. Tomridge (S. D. Cal. 2006) 436 F. Supp. 2d 1163 ........
Renick v. Dun & Bradstreet Receivable Management

Services (9th Cir. 2002) 290 F. 3d 1055 ............................................
16
Sambor v. Omnia Credit Services (D. Hawaii 2002) 183 F.

Supp. 2d 1234 .............................................................................................
18
126
Smith v. Computer Credit, Inc. (6th Cir. 1999), 167 F.3d

1052 ................................................................................................................
15, 16
Terran v. Kaplan (9th Cir. 1997) 109 F.3d 1428............................
15, 16
Wilkins v. Ramirez (S. D. Cal. 2006) 455 F. Supp. 2d 1080.......
FEDERAL STATUTES:
15 U.S.C. 1692 et. seq ........................................................................
1, 8
15 U.S.C. 1692e .......................................................................................
13
15 USC 1692e(2)(A) ...........................................................................
13, 14
15 UC 1692e(2)(B) ..............................................................................
13, 14
15 USC 1692f(1) ..................................................................................
4, 6, 7, 8, 9
15 USC 1692g .......................................................................................
14, 15, 16
15 USC 1692g(a) .................................................................................
14, 18
15 UCS 1692g(b) .................................................................................
14, 15, 16, 17, 18
15 USC 1692k(c) .................................................................................
16
FEDERAL RULES OF CIVIL PROCEDURE:

Fed. R. Civ. P. 23(b)(3) .........................................................................
17
Fed. R. Civ. P. 56 ....................................................................................
Fed. R. Civ. P. 56(a) ...............................................................................
Fed. R. Civ. P. 56(c) ...............................................................................
CALIFORNIA CASES
Berryman v. Merit Property Management, Inc., (2007) 152
Cal. App. 4th 1544 ....................................................................................
5, 7, 8, 9, 10, 11, 18, 21, 23
Bondanza v. Peninsula Hospital and Medical Center (1979)

23 Cal. 3d 260 .............................................................................................
11, 12, 13
Brown v. Professional Community Management, Inc. (2005)

127 Cal. App. 4th 532 ..............................................................................
5, 6, 7, 8, 9, 11, 13, 21, 22, 23
Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.

App. 4th 1134 .............................................................................................
10
Dey v. Continental Central Credit (2008) 170 Cal. App. 4th

721 ..................................................................................................................
4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 19, 20, 21, 22, 23
127
In re Episcopal Church Cases (2009) 45 Cal. 4th 467 .................
12
Park Place Estates Homeowners Assoc. Inc. v. Naber (1994)

29 Cal. App. 4th 427 ................................................................................
5, 13
Valerio v. Andrew Youngquist Construction (2002) 103 Cal.

App. 4th 1264 .............................................................................................
CALIFORNIA STATUTES:
California Business and Professions Code 11210 et. seq ......
12
11265.1(a) ...............................................................................................
5, 9, 12, 21
17200 et. seq ..........................................................................................
8, 10
California Civil Code 1350 et. seq .................................................
12
1351(a) .....................................................................................................
1366(e) .....................................................................................................
5, 9, 19, 21
1366.1 ......................................................................................................
6, 12, 13, 22
1368 ...........................................................................................................
1671 ..........................................................................................................
11,12
1788 ..........................................................................................................
1788.2(b) .................................................................................................
21
1788.2(c) .................................................................................................
21
1788.2(e) .................................................................................................
19, 21
1788.2(f) ..................................................................................................
21
1788.13(e) ...............................................................................................
20
1788.13(f) ...............................................................................................
21
1788.14(b) ..............................................................................................
20
1788.17 ....................................................................................................
20
California Corporations Code 9142 ...............................................
12
Other Authorities:
4 Witkin, California Procedure (4th Ed. 1997) Pleading,
413, pp. 510-511 ......................................................................................
128
TO: DEBORAH L. RAYMOND and O. RANDOLPH BRAGG, attorneys for Plaintiff SALLIE A. DURHAM
O. Randolph Bragg, Esq. Horwitz, Horwitz & Associates, LTD 25 East Washington St, Ste. 900 Chicago, IL 60602
Deborah L. Raymond, Esq. 445 Marine View Avenue, Suite 305 Del Mar, CA 92014
Please take notice that on 19th, June 2009, at 11:00 oclock a.m., or as soon thereafter as counsel can be heard, in Room 15,
United States District Court House, 880 Front Street, Suite 4290, San Diego, California 92101, Defendants respectfully move
this Court for a Summary Judgment or, in the Alternative, Summary Adjudication against the Plaintiff. This Motion is made
pursuant to Federal Rules of Civil Procedures Rule 56 (a) and (c) in that there is no genuine issue of material fact that exists
as to Plaintiffs claim. The Motion will be made on this Notice of Motion; Points and Authorities in Support of the Motion;
the Declaration of Michael E. Williams; the Request for Judicial Notice; the Statement of Uncontroverted Facts; and the files
and papers pertaining to this matter.
Defendants CONTINENTAL CENTRAL CREDIT, INC. (CCC) and SAN CLEMENTE COVE VACATION OWNERS
ASSOCIATION (Association) submit the following Points and Authorities in support of their Motion for Summary
Judgment or, in the alternative, Summary Adjudication.
I. INTRODUCTION
Plaintiff SALLIE DURHAM, purportedly on behalf of a putative class, seeks damages under a First Amended Complaint
(FAC) against Defendants CONTINENTAL CENTRAL CREDIT, INC. (CCC) and SAN CLEMENTE COVE
VACATION OWNERS ASSOCIATION (Association). The gravamen of Plaintiffs FAC is her allegation that a collection
fee added to charges for unpaid homeowners association (HOA) assessments was arbitrary and unreasonable because it
was assessed without regard to the actual costs of collection (See Defendants Separate Statement of Uncontroverted Material
Facts [UF] # 51). Durham alleges that Defendant CCC violated various provisions of the Federal Fair Debt Collection
Practices Act (FDCPA), 15 USC 1692 et. seq.; and that both Defendants violated Californias Rosenthal Fair Debt
Collection Practices Act (Rosenthal Act, Civil Code 1788 et. seq.)
Under the uncontroverted facts of record and controlling legal authority, Plaintiffs claims fail as a matter of law. Applicable
California law establishes that a homeowners associations may hire a for-profit entity like CCC to collect unpaid
assessments, and that such entities may charge reasonable collection fees, with what is reasonable to be determined by
what the market will bear. Thus, the acts complained of fall squarely within the safe harbor provisions of both the FDCPA
and the Rosenthal Act, because they are expressly authorized by law. Moreover, even absent this absolute defense, the facts
demonstrate that Plaintiff cannot prove the elements required to show any violation of law. Finally, this is not a case
involving liquidated damages, so the law regulating the imposition of such damages has no application to this case.
Accordingly, summary judgment should be granted.
II. SUMMARY OF UNCONTROVERTED FACTS

In 2002, Plaintiff became the owner of a time-share interest in San Clemente Cove, which she allegedly acquired pursuant
to a written contract (although neither a copy of any contract, nor any description of contractual terms, has ever been
produced or provided) (UF # 1, 2). This interest was eventually foreclosed upon by a yet unknown third party, which
remains unidentified. (UF # 3). Defendant San Clemente Cove Vacation Owners Association (the Association), which in
the normal course of its business assesses and receives association fees from members, billed Plaintiff for such fees, under
the authority of its written rules and by-laws (UF # 6). Plaintiff does not claim that such fees were improperly or wrongfully
assessed, or that she did not in fact owe the association such fees (UF # 7).
The Associations billing and service agent, Advanced Financial Company, made efforts to collect the sums Plaintiff owed
the Association for delinquent fees, but ultimately referred the account to defendant CCC for collection.(UF # 24). Plaintiff
129
received two notices from Defendant CCC by mail, pursuant to its collection efforts(UF # 33). The first was allegedly
received on or about September 11, 2006, seeking payment in the total amount of $1,890.55, $535.78 of which was identified
in the notice as a collection fee (UF # 34). An incomplete copy of this notice was attached to Plaintiffs FAC as Exhibit A,
which Plaintiff characterized as a redacted copy of the notice she received (UF # 34, 37). Exhibit A does not show the
reverse side of the notice, which sets forth the debtors right to dispute the debt and other information required by the FDCPA
(UF # 34, 37). This information is included on all such notices sent out by CCC (UF # 35).
Plaintiff alleges she received a second notice on or about October 9, 2006, seeking payment of $1,900.55, again including
$535.78 as a collection fee (UF # 39). After receiving this second notice, Plaintiff wrote a letter to CCC dated October 17,
2006 in which she disputed the debt, stated that the timeshare had been foreclosed upon, and demanded verification (UF #
44). Upon receiving this letter on or about October 23, 2006, CCC immediately ceased all collection efforts and requested
verification documents on the account from the Association (UF # 45, 46). On or about October 26, 2006, CCC mailed a
letter to Plaintiff with the information it had available in its office at that time, and offering settlement in full (UF # 47).
When CCC had received the requested verification information from the Association, it followed up with a second letter and
itemized statement (UF # 48). CCC collected nothing on the account, and eventually cancelled it as uncollectible (UF # 24).
Plaintiff has never claimed nor produced any evidence indicating that she paid any sum on this account to CCC or to anyone
else (UF # 8). Other pertinent facts are discussed below, in conjunction with the argument on the issue to which they relate.
II. THE LEGAL STANDARD FOR SUMMARY JUDGMENT IS SATISFIED

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S.
Ct. 2548 (1986). Additionally, summary adjudication is appropriate on discrete claims where no genuine issues of material
fact exist as to that claim. Fed. R. Civ. P. 56(a); AT&T Wireless Svc. of Cal. LLC v. City of Carlsbad (S.D. Cal. 2003) 308 F.
Supp. 2d 1148, 1155.
One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Wilkins v. Ramirez (S.
D. Cal. 2006) 455 F. Supp. 2d 1080, 1087-1088, citing Celotex Corp., supra, 477 U.S. at 323-24. As stated in Luna v.
Tomridge (S. D. Cal. 2006) 436 F. Supp. 2d 1163, Federal Rule of Civil Procedure (Rule) 56(c) empowers the court to
enter summary judgment on factually unsupported claims or defenses, and thereby secure the just, speedy and inexpensive
determination of every action. Id at 1168, quoting Celotex, supra, 477 U.S. 327. Summary judgment is appropriate here
because the evidence of record demonstrates that the Plaintiff cannot prove the elements of any cause of action asserted in her
FAC. Where the plaintiff bears the burden of proof at trial, summary judgment for the defendant is appropriate if the
defendant shows that there is an absence of evidence to support the plaintiffs claims. Id at 1168, citing Celotex, supra, 477
U.S. at 325; Garneau v. City of Seattle (9th Cir. 1998) 147 F.3d 802, 807. Thus, summary judgment may be entered when an
essential element of a legal theory is shown to lack evidentiary support, irrespective of factual disputes over other aspects of
the claim. See Celotex, supra, 477 U.S. at 323.
Additionally, while the movant is not required to produce evidence negating the non-movants claims, summary judgment is
also proper where, as here, a defendant demonstrates that a complete defense exists to the causes of actions asserted under the
uncontroverted facts. See Duffy v. Leading Edge Productions (5th Cir. 1995) 44 F.3d 308, 312.
In this case, both of these criteria for summary judgment are satisfied. The uncontroverted material facts demonstrate beyond
question that the evidence required to support one or more essential elements of each claim advanced has not been, and
cannot be produced; and further, that an absolute defense to each cause of action exists, precluding each and every claim
advanced. Accordingly, summary judgment should be entered in favor of Defendants, as a matter of law.
IV. ARGUMENT AND AUTHORITY
130
FIRST CAUSE OF ACTION: PLAINTIFFS FIRST FDCPA THEORY FAILS AS A MATTER OF LAW, FOR
SEVERAL REASONS
Plaintiff first cause of action alleging various violations of the FDCPA was initially brought against Defendants CCC and
Vacation Resorts International (VRI) (UF # 52). VRI has been dismissed from the action by stipulation, and CCC is
therefore the only remaining party to the FDCPA claims (UF # 53).
A. ISSUE ONE: 15 USC 1692f(1) Provides CCC With a Complete Defense, As a Matter of Law.
Governing law, as applied to the uncontroverted facts, establishes that (1) Plaintiff cannot prove a violation of 15 United
States Code section 1692f(1) by CCC; and further (2) an absolute defense exists to any claim she might otherwise have under
this FDCPA provision, because the acts complained of were permitted by law.
15 USC 1692f(1) prohibits the collection of any amount (including any interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. In
order to succeed in proving a violation of this provision, the burden is on the plaintiff to demonstrate why the collection fee is
illegal, rather than defendants burden to justify that it is legal for it to charge a fee for the service. Dey v. Continental Central
Credit (2008) 170 Cal. App. 4th 721, 727, citing Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th
1544, 1560.
However, where, as here, defendants are able to show that the fee complained of is authorized by law, section 1692f(1)
provides an absolute defense to the action, because the disjunctive language of this statute provides a safe harbor for
collection of amounts permitted by law, even if they are not authorized by contract. The analysis of whether such a safe
harbor exists turns on state law. Ballard v. Equifax (N. D. Cal. 1998) 27 F. Supp. 2d 1201, 1205; see also Dey, supra, 170
Cal. App. 4th at 727 (In the absence of an express agreement, whether charges are permissible within the meaning of the
FDCPA turns on California law [citing Hunt v. Check Recovery Systems, Inc. (2007) 178 F. Supp.2d 1157, 1161]). A
defendant can establish compliance with 15 U.S.C. 1692f(1) by identifying some state statute which permits; i.e.
authorizes or allows, in however general a fashion, the fee or charges in question. Ballard, supra, 27 F. Supp. 2d at 1205
The right of HOAs such as the Defendant Association, to collect general and special assessments plus reasonable collection
costs is codified at CC 1366(e) (part of the Davis-Stirling Common Interest Development Act, the general Act governing
homeowners associations), and B&PC 11265.1(a) (a provision of the Vacation Ownership and Time Share Act of 2004,
which establishes that the identical provision applies to time-share developments). Even Plaintiff acknowledges that ...the
written rules of the Association provide that the association is entitled to recover costs incurred by it in the collection of
delinquent assessments (UF # 25). The Acts create a statutory framework to permit HOAs to regularly collect the
assessments they need in order to function, and to hire outside entities as needed to facilitate this process. See Park Place
Estates HOA, Inc. v. Nader (1994) 29 Cal. App. 4th 427, 432 (Because homeowner associations would cease to exist
without regular payment of assessment fees, the Legislature has created procedures for associations to quickly and efficiently
seek relief against a non-paying owner). They also set the legal standards governing HOAs, as well as their relationship
with the entities they employ, such as CCC. See Brown v. Prof. Community Mgt., Inc. (4th App. Dist. 2005) 127 Cal. App.
4th 532, 538. The Acts contemplate that officers and directors of HOAs will be volunteer homeowners, who are not expected
to perform all of the required services personally, at no cost-rather, the association must hire employees or contract with
others to provide services, including collection services to pursue fees and assessments owed to the association. Dey, supra,
170 Cal. App. 4th at 728-729, citing Brown, supra, 127 Cal. App. 4th at 539. Such service vendors may be (and generally
are) for-profit commercial enterprises such as CCC. While section 1366.1 prohibits an association from marking up the
incurred charge to generate a profit for itself, the vendor is not similarly restricted. Dey, supra at 729, quoting Brown, supra
at 539. As the Brown court succinctly stated, Plaintiff would have it that no vendor selling its services to a non-profit
association could charge a fee, or, indeed, continue in business as a profit-making enterprise. That cannot be the law. Id
at 539. Plaintiff tries to sidestep the impact of this governing law by declaring that she DOES NOT seek to apply standards
governing homeowners associations, as set forth in Cal. Civ. Code 1366.1, to any defendant that is not an association
within the meaning of Cal. Civ. Code 1351(a) (UF # 66). Despite her representations to the contrary, Plaintiff is
plainly--and erroneously-- attempting to impose the legal standard applicable to nonprofit HOAs (which may not lawfully
make a profit and may recover only their actual costs incurred in the collection of delinquent accounts) upon CCC-a for-profit
company lawfully employed by the Association which is legally entitled to function as a profit-earning entity. This is
illustrated by Plaintiffs own admission, in pleadings filed of record herein, that the gravamen of her complaint is that the
131
adding of an arbitrary 40% collection fee, which bears no relationship to the actual costs of collection, is unreasonable, and
therefore, violates the FDCPA and the Rosenthal Act (UF # 51)1. She again asserts this fundamentally erroneous theory
when she alleges Defendants violated the FDCPA section 1692f(1) By collecting or attempting to collect amounts, including
a collection fee that bears no relation to the actual cost of collection, not expressly authorized by the agreement creating the
debt or permitted by law... (UF # 58).
1
The admission of a fact in a pleading is a judicial admission, which may be relied on as part of the case. Such an admission
constitutes a waiver of proof of the fact by conceding its truth, and has the effect of removing the matter from the issues. Valerio v.
Andrew Youngquist Construction (2002) 103 Cal. App. 4th 1264, 1271, citing 4 Witkin, California Procedure (4th Ed. 1997)
Pleading, 413, pp. 510-511.
In Dey, supra, 170 Cal. App. 4th at 730, an identical argument was unsuccessfully advanced by the same attorney
representing the Plaintiff in this case, on behalf of a similarly situated plaintiff, in a case arising under very similar facts.2 Dey
claimed that he has NEVER sought to apply standards governing [homeowners associations] to [defendants]. Id. Affirming
the demurrer, the Court of Appeal explained that the trial court ...properly relied on [Brown, supra, 127 Cal. App. 4th 532
and Berryman, supra, 152 Cal.App.4th 1544] since they set forth California law on the fees vendors may charge homeowners
associations, and California law controls whether the collection fee here was permitted by law within the meaning of title 15
United States Code section 1692f(1)... the court is not required to ignore controlling law merely because the plaintiff does
not rely on it. Id.
2
Dey was brought by attorney Deborah Raymond, who also represents the Plaintiff in this case (see Id at 724); as was at least one
other cases naming CCC as a defendant and advancing very similar claims. See Dalton v. Tahoe Beach and Ski Club Owners
Association, Continental Central Credit, et. al. (San Diego County Superior Court Case No. IN030789 (subsequent demurrer
dismissing all claims asserted in plaintiffs Third Amended Complaint affirmed by the Fourth Appellate District (Div. One), Case
No. D046505, in an unpublished opinion filed March 17, 2006). Defendant has requested the Court to take judicial notice of the
trial and appellate courts rulings (submitted herewith as Exhibits 7 and 8), in the accompanying Request for Judicial Notice).
Plaintiffs counsels repeated insistence on bringing these unsupportable cases, asserting causes of action that have been
determined meritless; and especially her continued pursuit of this action in the Federal forum following the California Court of
Appeals decision in Dey, suggests impermissible forum shopping, or judge-shopping. Such efforts have been recognized as an
inappropriate attempt to escape adverse rulings, which waste the time and resources of all parties and is disruptive of the judicial
process; and for which a court may impose sanctions under its inherent powers. See Hernandez v. Carmona (9th Cir. 1988) 138
F.3d 393, 398.
As outlined above, controlling California law establishes that the very acts complained of here have been held lawful by at
least three decisions of Californias Fourth Appellate District, applying the clear language of two governing statutes. Again,
as the Brown court explained, while a nonprofit HOA cannot charge fees exceeding its costs, this restriction does not apply to
managing agent or other service vendors (like CCC), which are not required to be nonprofit, and are generally for-profit
entities. In Berryman, supra, 152 Cal. App. 4th at 1552, relying on Brown, the court held that although CC 13683 prevents
HOAs from charging inflated fees for documents and for transfer of title when a unit is bought or sold, the statute does not
constrain the amount that a HOAs agent could charge. Id.
3
CC sec. 1368 is a different section of the Davis-Stirling Act, subject to the same reasoning, definitions and general principles as
sec. 1366 and 1366.1, at issue here and in Brown, supra. See Berryman, Id at 1552.
Most importantly, this rule has now been held to specificially encompass vendors of collection services, in a case involving
the same collection agency charging the same fee at issue here. The court In Dey, supra, 170 Cal. App. 4th at 731, expressly
found lawful the exact same action alleged to violate 15 UCS 1692f(1) in this case--charging an allegedly arbitrary and
unreasonable collection fee of 40%, against timeshare owners whose accounts were referred for collection. In Dey, the
plaintiff claimed CCC violated 15 USC 1692 et. seq.by [d]emanding a collection fee that does not reasonably reflect the
actual cost of collection, and us[ing] unfair or unconscionable means to collect or attempt to collect a debt by collecting a
fee, charge, or expense not expressly authorized by the agreement creating the debt or permitted by law. Dey, supra, 170
132
Cal. App. 4th at 7254. Virtually identical allegations are advanced in the FAC at issue here (UF # 58). The Dey courts
analysis focused on whether the plaintiff could show that the collection fee was not permitted by law. Id at 727. It held that
the plaintiff could not make such a showing. Affirming the demurrer, it stated, We conclude that under Brown and
Berryman, the trial court correctly determined that the allegation that [defendants] collection fee were greater than the
actual costs incurred to collect the debt does not support a cause of action. Id at 730. The Court of Appeal also pointed out
that In finding the collection fee here legal, the court relied on [Brown] and [Berryman]... Id at 728 (emphasis added). It
further stressed, Dey made no showing the collection fee was illegal. Id at 731. Thus, the collection fee the plaintiff attacks
is specifically authorized by law, and the safe harbor defense of 15 USC 1692f(1) squarely applies to establish an absolute
defense to Plaintiffs action, as a matter of law.
4
In Dey, the plaintiff framed his single cause of action for violation of Californias Unfair Practices Act (Bus. & Prof. Code
17200) as predicated on alleged violations of FDCPA section 1692f(1), based on charges by CCC identical to those at issue here,
as outlined above. See Id at 725
B. ISSUE TWO: Defendant CCC is Entitled to Make a Profit and Is Not Limited to Recovering Its Actual Costs of
Collection as Fees, Thus Plaintiff Cannot Prevail on Her 15 USC 1692f(1) Action, As a Matter of Law
The same arguments that support Defendants defense under the safe harbor provision of 1692f(1) also demonstrate why
the Plaintiff cannot succeed on her burden of proving the merits of this claim, as a matter of law: The FDCPA is not violated
and no cause of action may be stated when the action complained of is authorized by contract or by law. The controlling law
makes it very clear that CCC may legally function as a for-profit entity in providing collection services to the Association (in
this case, with the very fee at issue here, charged by the very same defendant, having been expressly held lawful). Thus, the
Plaintiff cannot demonstrate a 15 USC 1692f(1) violation.
Under the authority discussed above, the various service providers hired by HOAs (whether painters, landscapers, mortgage
brokers, or collection agencies) are legally entitled to earn a profit in performing their work. Again, as the Brown court
emphasized, Plaintiff would have it that no vendor selling its services to a non-profit association could charge a fee, or,
indeed, continue in business as a profit-making enterprise. That cannot be the law. Brown, supra, 127 Cal. App. 4th at 539.
Likewise, the Berryman court explained, The implication...that a for-profit business must have statutory or contractual
authorization for providing a service to a third party and charging a fee for that service is fundamentally flawed. Indeed, it is
up to plaintiffs to demonstrate why a statute or contract prohibits [the business] from doing so. Berryman, supra, 152 Cal.
App. 4th at 1552. Plaintiff cannot satisfy this burden. On the contrary, the Association is expressly empowered by law to hire
third party vendors to do both collections and the other types of work; and such entitles may lawfully earn profits from such
work. See CC 1366(e), B&PC 11265.1(a), Berryman, supra, 152 Cal. App. 4th at 1552; Brown, supra, 127 Cal. App. 4th
at 539; and especially Dey, supra, 170 Cal. App. 4th at 728. Confronted with exactly the same issue presented here, the Dey
court expressly held that CCCs collection fee was legal, and did not violate 15 USC 1692f(1). Id. Accordingly, the
Plaintiff cannot meet her burden of showing that the collection fee at issue was in any manner unlawful, as a matter of law.
For this reason, and because 15 UCS 1692f(1)s safe harbor defense applies to shield the defendants from liability, her
claim alleging violation of 1692f(1) fails as a matter of law.
C. ISSUE THREE: What is a Reasonable Collection Fee is Determined by Market Forces, As A Matter of Law
California law addressing collection fees, including cases arising under facts analogous to those presented here, holds that
when a legitimately for-profit vendors fees are challenged as unreasonable, what is reasonable is to be determined by
market forces. In Berryman, supra, 152 Cal. App. 4th at 1552, 1560, the court stated that Competitive forces, not the statute,
will constrain the vendors fees and charges. It observed that those who believe that a HOAs vendors fees are out of line
with market forces have the remedy of persuading the associations board to find a vendor that offers the services for less,
since a vendor that realizes it is losing business with fees that are out of line with the marketplace will likely adjust them
accordingly. Id.
Likewise, in Dey, supra, 170 Cal. App. 4th at 729-730 the court, quoting Berryman, also emphasized that the competitive
133
forces of the market will determine whether a vendor such as CCC charges fees that are reasonable-and that if a
homeowner feels that such fees are excessive, his or her remedy lies with the HOA: Dey does not meet his burden of
showing a contract or statute prohibits defendants collection fee, and to the extent he believes the vendor services the
Shores homeowners association contracts for are noncompetitive, he may pursue the matter with the association. Id. See
also Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal. App. 4th 1143, 1148 (no claim for violation of Californias
Unfair Competition Law [Bus. & Prof Code 17200] could be stated where a mortgage brokers charge was lawful, and
plaintiff presented no evidence that the amount was unreasonable in light of sums normally charged for similar transactions
in his market area). Thus, it is up to market forces-including pressure brought to bear on homeowners associations by
owners who deem vendor charges excessive-to impose appropriate constraints on what collection fees an agency like CCC
may charge, where, as here, such fees are lawfully imposed. See Dey, supra, 170 Cal. App. 4th at 729-730. As stated by Hon.
Thomas P. Nugent in an order entered in Dey v. Continental Central Credit (San Diego County Superior Court Case
No.37-2007-00050054-CU-BT-NC5 (affirmed by the Fourth Appellate District Court at Dey v. Continental Central Credit
(2008) 170 Cal. App. 4th 721), According to Brown and Berryman...the fees a managing agent such as defendants may
charge are limited only by competitive forces. Defendants are not required to charge a fee that has, as Plaintiff alleges, an
ascertainable relationship to the amount of costs actually incurred in effecting collection of a particular debt. A cause of
action cannot be based on such an allegation (UF # 67).
5
Defendants have requested the Court take judicial notice of this order in its concurrently filed Request (See RJN # 3).
D. ISSUE FOUR: Plaintiff Cannot Rely on Inapposite Authority Governing Liquidated Damages, Which Are Not
Involved Here, to Try and Create an Alleged Violation of Law-Or a Triable Issue of Fact-Where None Exist.
In the present case, exactly as in Dey, the Plaintiff has tried to concoct a violation of law by arguing for the application of
legal authority wholly inapposite to the issues before the court. In opposing Defendants Motion to Dismiss, she relied on
Bondanza v. Peninsula Hospital and Medical Center (1979) 23 Cal. 3d 260 to argue that the collection fee at issue here
should be analyzed in the same manner as the fee found unlawful in that case.(UF # 3). Yet Bondanza is both factually
distinguishable and legally inapposite to the case at hand. Bondanza was a contract case, based on a liquidated damages
clause that was held illegal under California Civil Code (CC) 1671. It involved the collection of fees on a hospital bill,
imposed under an adhesion contract that the plaintiff-patient had been required to sign as a condition of admission; which
contained a collection clause that the court found to be an illegal penalty under the statute governing liquidated
damages--thus the collection fees at issue were expressly prohibited by law.
In the present case, Plaintiff has never alleged nor produced any evidence suggesting that a liquidated damages clause, in any
contract, ever existed or was ever at issue (UF # 3). Nor does she plead any violation of CC 1671 (UF # 3). Thus, neither
1671 nor Bondanza, supra, 23 Cal. 3d 260, have any application whatsoever to this case-because it simply does not involve
liquidated damages.
In Dey, supra, 170 Cal. App. 4th at 727-728, the court rejected an identical argument arising under identical facts (and, as
noted above, advanced by the same attorney). At the trial level, Hon. Thomas Nugent explained, Bondanza was based on an
interpretation of Civil Code 1671, which addresses the validity of a liquidated-damages provision in a contract... Plaintiff
has not alleged the existence of a contract here that includes an objectionable liquidated-damages provision. As such,
Plaintiff cannot rely on Bondanza (UF # 67; RJN # 3). Affirming this ruling on appeal, the Fourth Appellate District Court
pointed out that the plaintiffs original complaint had alleged a violation of CC 1671, but that the claim had been dismissed
on demurrer because the plaintiff failed to attach a contract or to describe any liquidated damages provision in any contract.
There, as here, Plaintiffs FAC did not allege any violation of 1671, nor did it allege any contract term pertaining to
liquidated damages. Thus, Bondanza is not on point. A decision is authority only for the point actually passed on by the
court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not
necessarily control the outcome in a subsequent suit involving different facts. Dey, supra, 170 Cal. App. 4th at 728 (citations
omitted).
Additionally, it is worth briefly noting that even if a contract with a liquidated damages provision were at issue here, which it
134
is not, this case arises under a specific statutory scheme addressing the matter at issue, namely the rights of HOAs to hire
third party, for-profit collection agencies to recover unpaid assessments. See CC 1366.1; Bus. & Prof. Code 11265.1(a).
Thus, the Legislature has carved out a legal niche, in which particular statutes-rather than general common law--governs the
relevant area of law. In doing so, the Legislature preempted the application of common law principles that might otherwise
apply to the parties/entities/subject matter at issue; and instead enacting statutes that prescribe specific rules for the specific
parties/entities belonging to the regulated group. See, e.g. In re Episcopal Church Cases (2009) 45 Cal. 4th 467, 488-489
(Corporations Code 9142 governs trust ownership of church property, displacing common law trust principles that might
otherwise impact determination of disputes over such property). The same principle has been repeatedly recognized in case
law interpreting the statutes governing common interest and timeshare communities through the Davis-Stirling Common
Interest Development Act (CC 1350 et. seq) and B&PC 11210 et. seq, the Vacation Ownership and Time Share Act of
2004). See Park Place, supra, at 539 (The legislature has enacted very specific procedural rules governing condominium
assessments); Dey, supra, 170 Cal. App. 4th at 728-730 (discussing the Brown courts analysis of the pertinent provision of
the Davis-Stirling Act [1366.1], and citing Brown, supra, 127 Cal. App. 4th at 539). Thus, specific legislative enactments,
plus a well-developed body of case law interpreting these statutes, governs the case at hand-not cases like Bondanza,
espousing general common law principles and applying unrelated statutes.
PLAINTIFFS OTHER FDCPA THEORIES FAIL AS A MATTER OF LAW

E. ISSUE FIVE: CCCs Notices Did Not Violate 15 USC 1692e
Plaintiffs claim that Defendants violated 15 USC 1692e, like her others, fails on the uncontroverted facts and applicable
law. Plaintiffs central theory underpinning this claim apparently rests on her erroneous conclusion that CCCs collection fee
was unlawfulthus, she reasons, charging the fee misrepresented the amount lawfully due. This is illustrated at FAC 29.1,
where she claims that CCC violated section 1692e(2)(A) By using false, deceptive, and misleading means in connection
with the attempt to collect a debt by adding an unlawful collection fee to the alleged debt and thereby making a false
representation of the amount of the alleged debt (UF # 54). Likewise, at 29.2, she claims defendants violated section
1692e(2)(B) By using false, deceptive, and misleading means in connection with the attempt to collect a debt by the false
representation of services rendered or compensation which may be lawfully received by any debt collector for the collection
of a debt (UF # 55). As explained above, the collection fee at issue was unlawfully charged, thus, CCC made no
misrepresentation in seeking its recovery. See Dey, supra, 170 Cal. App. 4th at 728-730.
Nor does Plaintiff claim-nor could she-that the notices at issue misrepresented the amount of the debt in any other manner.
As her own allegations at FAC 16 - 17 and Exhibits A and B (even in their incomplete form as attached) make clear, the
two communications at issue clearly set forth on the face of each exactly how much of the payment sought was for principle,
how much was for interest, and how much was for the collection fee (UF # 40).
Rejecting virtually identical arguments advanced in Dey, that court explained:
The FAC also alleged defendants violated title 15 United States Code section 1692e(2)(A), which prohibits a debt collector
from falsely representing the character, amount, or legal status of any debt. The FAC, however, alleged no supporting
facts...Continentals notices to Dey clearly stated the principal amount of the debt, the amount of interest and the amount of
the collection fee. Accordingly, there was no false representation. Dey cites no authority for a different conclusion.
Further, the FAC alleged defendants violated title 15 United States Code section 1692e(2)(B), which prohibits a debt
collector from falsely representing any services rendered or compensation which may be lawfully received by any
debt collector for the commission of a debt. Again, the FAC alleged no supporting facts, and Dey cites no supporting
authority. As discussed, Dey made no showing the collection fee was illegal.
Dey, supra, 170 Cal. App. 4th at 730-731. This language applies with equal force here. Under the undisputed facts of record,
Plaintiff cannot show any violation of these FDCPA sections by CCC.
F. ISSUE SIX: CCCs Collection Notices Did Not Violate 15 USC 1692g
Plaintiff further claims that CCC violated 15 USC 1692g By failing to effectively provide a Notice of Debt (UF #
135
59). Section 1692g(a) requires a debt collector to send a written notice within five days of its initial communication
with the consumer, stating specific information about the debt and notifying the consumer of his or her right to
dispute the debt and request verification within 30 days of receiving the notice. The copy of the Notice attached as Ex.
A to Plaintiffs FAC, which was the initial Notice she received from CCC, is redacted and incomplete, showing only
one side of the document; however, it is undisputed that all of the consumer rights information required by the 15
USC 1692g(a) was provided on the reverse side of this Notice (UF #34, 35, 37). CCC sends such initial notices to
debtors using a preprinted form supplied by the American Collectors Association (ACA), which it has used for many
years, and all such notices contain the requisite FDCPA language giving the debtor the opportunity to dispute the
account in writing within 30 days of receipt (UF #35, 36).
Plaintiffs complaint under this section presumably focuses on the second communication from CCC, a letter dated October
9, 2006 and attached to her FAC as Ex. B; which she allegedly received approximately 28 days after the initial Notice (UF #
39). This letter stated in pertinent part (following a breakdown of the components of the sum claimed due), The
above-referenced claim has been assigned to our firm. Because you have failed to comply with our request for payment, we
may refer this account to our attorney for legal action, should he deem it appropriate, To prevent further collection efforts,
payment in full is required immediately. (UMF # 42). It is undisputed that Plaintiff sent CCC a letter disputing the debt and
requesting verification on October 17, 2006, only after receiving this second communication (UF # 44).
Section 1692g(b) provides in relevant part:
Collection activities and communications that do not otherwise violate this title may continue during the
30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing
that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of
the original creditor. Any collection activities and communication during the 30-day period may not
overshadow or be inconsistent with the disclosure of the consumers right to dispute the debt or request
the name and address of the original creditor.
Neither the timing of CCCs second letter nor the language at issue can support a violation of this law, for several reasons.
First, Plaintiffs own FAC illustrates that she did not contact CCC to dispute the debt or request verification until after
receiving the second notice (UF # 44). In such a case, 15 USC 1692g(b) gives the collector the legal right to continue its
collection efforts during the statutory 30-day period. See Smith v. Computer Credit, Inc. (6th Cir. 1999), 167 F.3d 1052,
1054-1055 (A collection agency does not have to stop its collection efforts to comply with the Act).
Second, Plaintiff can point to nothing in CCCs notice that could be reasonably interpreted as likely to confuse a hypothetical
least sophisticated debtor by overshadowing or contradicting a prior or concurrent disclosure of the consumers rights.
The question whether language in a collection letter overshadows or contradicts the prior or concurrent disclosure of the
consumers rights so as to confuse a least sophisticated debtor is a question of law. Terran v. Kaplan (9th Cir. 1997) 109
F.3d 1428, 1432. In Terran, a debt collection attorney sent a letter which contained the required notice, but also advised the
debtor that unless he made an immediate phone call to the attorneys office, he may find it necessary to recommend to [his]
client that they proceed with legal action. Id at 1430. The Ninth Circuit rejected the plaintiffs claim the letter violated
1692g, finding that it did not threaten or encourage the least sophisticated debtor to waive his statutory right to challenge the
validity of the debt, even though it suggested that legal action may ensue if Terran did not call the debt collection
attorneys office immediately. Id. In the present case, CCCs letter, like the one in Terran, only suggested that legal action
could follow if immediate action was not taken. Plaintiff admits that the only consequence threatened if Plaintiff did not
pay immediately was further collection efforts (UF # 43 ).
Numerous courts have held that such language is not tantamount to a threat of immediate legal action sufficient to
overshadow the required statement of rights. See Id; Anderson v. Credit Collection Services (S.D.Cal. 2004) 322 F. Supp. 2d
1094). In Anderson, the plaintiff claimed that a letter she received from a collector which quoted the FDCPA and displayed a
Western Union logo falsely implied that legal action would soon commence, and mimicked a telegram to imply a false sense
of urgency. This district found dismissal to be warranted for several reasons, first among them, Defendants collection letter
makes no overt threat of impending litigation. Id at 1097. The court found that as a matter of law, the text at issue would not
mislead the least sophisticated debtor, nor did it threaten imminent legal action; thus, Plaintiffs FDCPA claim failed. Id at
1099. See also Smith, supra, 167 F.3d at 1054-1055 (following the Ninth Circuits decision in Terran, supra, 109 F.3d at
136
1432, the court held that a letter sent during the 30-day period, stating that if the debt was not paid by a stated date it would
advise you of our final position regarding the status of your account did not violate section 1692g because the least
sophisticated debtor would not have believed the letter threatened his statutory right to dispute the validity of the debt);
Renick v. Dun & Bradstreet Receivable Management Services (9th Cir. 2002) 290 F. 3d 1055 (affirming summary judgment
for defendant, court held that collection notice mailed 20 days after the first, which included a request for prompt payment
and payment today did not violation Section 1692g because it did not overshadow the previous message stating the
debtors rights to contest the debt). The same result should be reached here.
Furthermore, even if the letter had threatened immediate litigation or contained other language arguably sufficient to
overshadow the prior statement of rights, it would only violate 15 UCS 1692g(b) if it were intentionally sent before the
running of the prescribed 30 day period, rather than erroneously sent out early. 15 USC 1692(c) provides, A debt collector
may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence
that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error. Richard Spielman, CCCs president and CEO, testified that numerous steps are
taken to assure that his employees strictly comply with all provisions of the FDCPA and other applicable law (UF # 49, 50).
Additionally, the computer system that generates the NOI notices in the form of Exhibit B indicates that the Notices are
sent when generated; however, not all such notices are actually sent on the date they are generated are sent on a later date.
Those NOI letters that were sent within 30 days of sending the notice designated Exhibit A were not intentionally sent
within this time frame, and corrective procedures have been put into place to avoid such errors in the future (UF # 68, 69).
Thus, even if the letter could be deemed to contain overshadowing language, and Plaintiff could prove it arrived 2 days shy
of the 30-day cutoff period, CCC would be protected by the bona fide error defense6. The undisputed evidence of record
would strongly support application of this defense, if the analysis reached this point (UF # 49, 50, 68, 69).
6
Where a case is styled as a putative class action, but not yet certified, a summary judgment action is brought against the named
plaintiff/putative class representative. See Ballard v. Equifax (C. D. Cal. 2001) 158 F. Supp. 2d 1163, 1170. However, it is worth
briefly noting that this issue would not be amenable to resolution on a classwide basis, since there would almost certainly be a vast
disparity among members of the putative class as to when such communications were received, such that individual analysis would
be required and individual issues would therefore predominate. See F. R. Civ. P. 23(b)(3).
Additionally, when Durham invoked her right to challenge the debt and demand verification after receiving this letter,
everything she requested was subsequently provided (UF # 46, 47, 48). When CCC received Plaintiffs letter, all collection
efforts ceased--and within approximately one week of receiving the letter, CCC had responded (UF # 45, 46, 47). It followed
with additional information, including itemized details regarding the debt, as soon as it acquired the requested verification
information from the Association (UF # 48). These actions not only satisfy the requisites of the FDCPA, but exceed what it
requires. See 15 USC 1692g(b) (giving debt collectors two options upon receipt of a request for validation of the debt: they
may provide the requested validation and continue debt collection efforts, or they may cease all collection activities); Sambor
v. Omnia Credit Services (D. Hawaii 2002) 183 F. Supp. 2d 1234, 1242-1243 (rejecting an argument that verification must be
provided regardless of whether collection efforts continue, since the statute ...does not require both cessation of collection
efforts and verification of a debt; thus because the defendant ceased collecting the alleged debt, it did not violate the
FDCPA by failing to verify). Accordingly, under the undisputed facts and applicable law, Plaintiff cannot establish any
violation of 15 USC 1692g(b) by CCC, as a matter of law.
G. ISSUE SEVEN: CCC Made No False Representations to Plaintiff

15 USC 1692g(a) provides that the initial communication sent to a consumer must contain: (1) the amount of the debt, (2)
the creditors name, (3) a statement that unless the consumer disputes the validity of the debt within thirty days of receipt of
the notice, the debt collector will assume the debt to be valid, (4) a statement that if the consumer does dispute the debt in
writing within thirty days, the debt collector will obtain verification of the debt or a copy of the judgment, and (5) a statement
that, upon the consumers written request, the debt collector will provide the consumer with the name and address of the
original creditor, if different from that of the current creditor. It is undisputed that the initial notice Plaintiff received from
CCC contained all of this information; nor has Plaintiff ever alleged that any of the information set forth was false or
incorrect (UF # 34, 35, 37). Plaintiff neither denies owing the underlying debt, nor specifies a single specific act which could
137
accurately be characterized as false, deceptive, or misleading the contrary, it is CCCs straightforward billing of a sum
including a collection fee which she deems excessive that underlies her complaint (UF # 32, 33, 40, 51).
As discussed above, Plaintiffs sole basis for alleging false representation is her claim that CCC allegedly sought to recover
an amount she deemed unauthorized by law. Simply alleging that fees are unauthorized is a legal conclusion, and one
which, in this case, is patently erroneous. See Berryman, supra, 152 Cal. App. 4th at 1552. Moreover, as the authority
discussed above makes clear; Plaintiff cannot point to any law rendering the fees at issue unlawful; and controlling California
authority has expressly held the very fee at issue to be lawful. Dey, supra, 170 Cal. App. 4th at 728. Thus, this argument-like
Plaintiffs other argument grounded in the same faulty theory-- fails as a matter of law, because Plaintiff can make no showing
that the collection fee was illegal. Id at 731.
SECOND CAUSE OF ACTION: PLAINTIFFS CALIFORNIA ROSENTHAL ACT CLAIM FAILS AS A MATTER
OF LAW, FOR SEVERAL REASONS
H. ISSUE EIGHT: Plaintiffs Case Falls Outside the Scope of the Rosenthal Act Because it Does Not Involve the
Extension of Credit
By its terms, the Rosenthal Act applies only to actions based upon the extension of credit in the course of consumer credit
transactions. CC 1788.2(e) defines a consumer credit transaction as a transaction between a natural person and
another person in which property, services or money is acquired on credit by that natural person from such other person
primarily for personal, family or household purposes (emphasis added).
It is undisputed that Plaintiffs underlying debt was incurred as the result of regularly billed HOA assessments arising from
her purchase of a timeshare property interest (UF # 1, 6, 13, 14, 16 17). As stated by Hon. Lisa Guy-Schall in ruling on
defendants demurrers to the plaintiffs Second Amended Complaint in Dalton v. Tahoe Beach and Ski Club Owners
Association, Continental Central Credit, et. al. (San Diego County superior Court Case No. IN030789)7, homeowners
association dues are not a consumer credit transaction falling under the provisions of the Rosenthal Act...An obligation to pay
a homeowners assessment is not an obligation acquired on credit. It arises from a purchase of real estate interest that is
subject to Conditions, Covenants and & Restrictions (CC&R) running with the property sold as well as from statutory
authorization found at CC Section 1366(e) (UF # 64).
7
See Ex. 6, for which Defendants have concurrently requested judicial notice (RJN # 1); affirmed by the Fourth Appellate District
of the California Court of Appeal (Div. One), Case No. D046505, in an opinion filed March 17, 2006 affirming an order sustaining
demurrer and dismissing all claims asserted in plaintiffs Third Amended Complaint (Ex. 7, RJN # 2).
This distinction is well established in California law. As the courts have recognized, HOAs regularly bill and collect
assessments as they come due, as they are required by law to do in order to maintain the subject property, under specific
procedures created by the Legislature, which exist separate and apart from the law governing consumer debt. See Park Place,
supra, 29 Cal. App. 4th at 432. Obligations to pay regular HOA assessments are thus not acquired on credit for services
previously rendered; but rather assessed, billed, and and collected on a regular basis to fund the ongoing maintenance and
management of the development. Id. Marc Hubbard, accounts manager for the Associations billing agent, testified that
Plaintiffs debt arose from maintenance fees, and Plaintiff has produced no evidence to challenge this fact (UF # 13, 16, 17,
24).
The undisputed facts therefore make it very clear that neither CCC nor the Association ever extended credit to the Plaintiffs
at any time. Thus, Plaintiff was not involved in a consumer credit transaction with any Defendant. Her circumstances
therefore place her outside the scope of the Rosenthal Act, and for this reason alone, her Rosenthal Act claim fails as a matter
of law.
I. ISSUE NINE: Defendants Made No False Representatios

138
Plaintiff also vaguely claims that the Defendants violated the Rosenthal Act, CC 1788.17, by violating various provisions
of the FDCPA (which, as explained above, fails as a matter of law because Plaintiff cannot prove any FDCPA violation and
the absolute defense provided by 15 USC 1692f(1) precludes liability); and further, that they violated CC 1788.13(e) by
falsely representing that the alleged debt may be increased by the addition of fees or charges, when in fact such fees or
charges may not legally be added to the existing obligation (FAC 33.2). Again, under Dey, supra, 170 Cal. App. 4th at
728-730 and other applicable law, as set forth above, the acts of the Defendants herein have been expressly recognized as
lawful. Thus, Plaintiffs claim under this section of the Rosenthal Act fails as a matter of law.
J. ISSUE TEN: An Absolute Defense Exists Under the Rosenthal Acts Safe Harbor Provision
Even if the Rosenthal Act applied to the circumstances presented, Defendants would be shielded from liability because their
actions were authorized by statutory law (and case law applying the pertinent statutes under analogous circumstances). Like
the FDCPA, Californias Rosenthal Act includes a safe harbor provision stating that no violation may be found where the
acts complained of are specifically authorized by a state statute. See CC 1788.14(b) (providing an exception to the general
prohibition against attempting to collect from the debtor the whole or any part of the debt collectors fee or charge for
services rendered, or other expense incurred by the debt collector in the collection of the consumer debt, except as permitted
by law) (emphasis added). Here, as explained above, the law expressly gives defendants the right to collect the fees at
issue-both under the HOA statutes ( CC 1366(e) and B&PC 11265.1(a)); and through an established body of common law
including Brown, supra, 127 Cal. App. 4th 532; Berryman, supra, 152 Cal. App. 4th 1544; and now Dey, supra, 170 Cal.
App. 4th 721.
K. ISSUE ELEVEN: The Rosenthal Act Does Not Apply to the Association, As a Matter of Law
Defendants submit that even if the Court should find that one or more issues of material fact precludes summary judgment on
certain claims brought against CCC, the undisputed facts and applicable law make it very clear that no cause of action may
lie against the Association, for several reasons. First, the only cause of action asserted against the Association is for alleged
violation of the Rosenthal Act. The Association is excluded from the scope of the Rosenthal Act because it is not a debt
collector as defined in the Act. CC 1788.2 (b), (c), and (f) define a debt collector as a person who engaged in debt
collection, defined as the collection of consumer debts, which are limited to those owing by reason of a consumer credit
transaction. See 1788.13(f). As explained above, CC 1788.2(e) defines a consumer credit transaction as one in which a
person acquires property, services or money on credit. CC 1788.2(e). Again, Plaintiffs debt to the Association was based
on regular HOA assessments levied by authority of CC&Rs, Association by-laws, and the statutes governing such
assessments (UF # 1,6, 13, 16, 24); Bus & Prof. Code 11265.1(a)(1). It is undisputed that the Association never extended
credit to the Plaintiff so as to come within the scope of the Act (UF # 16, 17).
Second, the Rosenthal Act is inapplicable to the Association because it applies only to those individuals or entities who, in
the ordinary course of business, regularly...engages in debt collection (CC 1788.2(c)). Not only is this nonprofit HOA not
in the business of regularly engaging in debt collection; it in fact does no collections rather, it hires Advanced Financial
Company (Advanced), an entity of Grand Pacific Resorts, Inc., to serve as its billing and service agent, which includes the
handling of all delinquent homeowner accounts (UF # 9, 10, 11, 13, 23). Advanced pursues payment of such accounts for the
Association according to guidelines set forth in a Homeowner Association Maintenance Fees and Billing Options, which
the Association refers to as its billing policy (Policy), and which is distributed to all homeowners (UF # 18, 19, 20). The
Policy describes the Associations maintenance fees and payment options, as well as outlining a series of steps that may be
taken if payments become delinquent (UF # 19,20, 21). Advanced follows these steps in attempting to collect delinquent
accounts, including sending at least three letters to the non-paying homeowner, and determines when and whether accounts
are eventually turned over to CCC for additional collection efforts (UF # 19, 20, 21, 22, 23). As the court recognized in
Brown, supra, 127 Cal. App. 4th at 539, the operative statutes contemplate that HOAs will hire or contract with others to
provide services, including collection services to pursue fees and assessments owed the association, rather than engaging in
such efforts themselves. Id, see also Dey, supra, 170 Cal. App. 4th at 728-729. As the evidence of record makes clear in this
case, exactly as in Brown, supra, it is exactly what the Association regularly did thus it cannot be deemed a debt collector
as defined in the Rosenthal Act (UF # 6, 10, 13, 16, 17, 23, 24, 26).
139
Moreover, as explained above, even if the Rosenthal Act applied, its safe harbor provision would shield the Association from
liability. As discussed, a nonprofit Association is expressly empowered by law to hire for-profit entities to perform collection
services, and to recover its reasonable costs incurred in doing so (UF # 25); see Dey, supra, 170 Cal. App. 4th at 729, citing
CC 1366.1 (e); Brown, supra, 127 Cal. App. 4th at 539. While Plaintiff made various claims in her FAC, on information
and belief, vaguely alluding to some alleged conspiracy between the Defendants, she has never produced a scintilla of
evidence of any unlawful agreement between any of the Defendants, and cannot in good faith dispute the testimony of record
herein establishing that no such agreements have ever existed (UF # 27, 28, 30, 31). The evidence makes it very clear that the
Association receives no part of the collection fees acquired from the debtor by either of its service vendors; that it does no
collections, and that its does not fall within the definition of a debt collector set forth in the Rosenthal Act (UF # 30, 31).
For this, and other reasons set forth herein, Plaintiffs allegations against the Association fail in their entirety, as a matter of
law.
V. CONCLUSION:
The central theory underlying both causes of action asserted in Plaintiffs FAC is based on a faulty premise: that a collection
fee which bears no relationship to the actual costs of collection violates the FDCPA and the Rosenthal Act. As the authority
cited above, including Brown, supra, 127 Cal. App. 4th 532, 539, Berryman, supra, 152 Cal. App. 4th 1544, 1552, and
especially Dey, supra, 170 Cal. App. 4th 721 makes clear, this theory is fundamentally erroneous, as a matter of law. Nor can
Plaintiff point to facts supporting her other FDCPA theories; and the undisputed facts of this case place it outside the scope of
the Rosenthal Act, because the Plaintiff was never extended credit by either Defendant, and the Association is not within the
Acts defined scope. Additionally, as both the undisputed facts of record and applicable law demonstrate, each and every act
of the Defendants complained of herein was authorized by law, and therefore subject to an absolute defense under both the
FDCPA and the Rosenthal Act. In short, the undisputed facts of record demonstrate that the Plaintiff cannot prove the
elements of any claim asserted against either Defendant; and that even if she could, her action would be barred by one or
more absolute defenses. As set forth above and in the Separate Statement of Undisputed Material Facts and other pleadings
filed herewith, no triable issue of fact exists as to any cause of action alleged, and summary judgment (or, in the alternative,
summary adjudication of specific issues, particularly those involving the Defendant Association) should be granted in favor
of the Defendants, as a matter of law. Additionally, Defendants should be awarded their attorney fees and costs, and other
relief as the Court may deem just and proper.
DATED: May 21, 2009
End of Document
140
Reply in Support of Motion to Dismiss Plaintiffs Verified First

Amended Complaint
Tommy DESOTO, as an Individual and on Behalf of Trago Lp; George Kosty, as an Individual and on Behalf of
Trago Lp; Antoinette Cardenas, as an Individual and on Behalf of Trago Lp; and Douglas Lovison, an Individual,
Plaintiffs, v. Michael MEDIANO, an Individual; John Adsit, an Individual; Christopher Condon, an Individual;
Richard Condon, an Individual; Trago LP, a British Virgin Islands Limited Partnership; FX Holdings International
Ltd, a British | United States District Court, C.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
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Client ID:
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Comment:
Tommy DESOTO, as an Individual and on Behalf of Trago..., 2009 WL 1471686...
2009 WL 1471686 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit)

United States District Court, C.D. California.
Western Division
Tommy DESOTO, as an Individual and on Behalf of Trago Lp; George Kosty, as an Individual and on Behalf of
Trago Lp; Antoinette Cardenas, as an Individual and on Behalf of Trago Lp; and Douglas Lovison, an
Individual, Plaintiffs,
v.
Michael MEDIANO, an Individual; John Adsit, an Individual; Christopher Condon, an Individual; Richard
Condon, an Individual; Trago LP, a British Virgin Islands Limited Partnership; FX Holdings International Ltd,
a British Virgin Islands Corporation; Trago USA, Inc., a California Corporation; Trago International, Inc., a
Delaware Corporation; CT Holdings International, Inc., a Delaware Corporation; Pulse Entertainment Group,
L.L.C., a Nevada Limited Liability Company; Ruva International, Inc., a Nevada Corporation; and Does 1
through 50, Defendants.
No. 209CV01121.
April 2, 2009.
(Filed concurrently with Evidentiary Objections)
Date: April 13, 2009
Time: 9:30 a.m.
Crtrm: 650
Reply in Support of Motion to Dismiss Plaintiffs Verified First Amended Complaint
John M. Adsit (SNB 134121), jmadsit@gmail.com, 15755 Enadia Way, Lake Balboa, California 91406-4003, Telephone:
(310) 913-3105, Facsimile: (310) 388-5812, Attorney for Defendant Michael Mediano.
Assigned to the Honorable George H. King.
Magistrate Judge: Hon. Andrew J. Wistrich.
TABLE OF CONTENTS
I. IF PLAINTIFFS AND MR. LUCALS FILING, RE-FILING AND RE-FILING AGAIN OF CLAIMS,
ALL BASED UPON THE SAME EVENTS AND TRANSACTIONS, IS NOT FORUM/JUDGE
SHOPPING; THEN THERE IS NO SUCH ANIMAL; AND LOCAL RULE 83-1.2.1 IS SUPERFLUOUS.
.....................................................................................................................................................................................................................
II. IF NINE SEPARATE MOTIONS FOR APPOINTMENT OF RECEIVER OVER THE COURSE OF
TWO YEARS, ALL BASED UPON THE SAME INADMISSIBLE EVIDENCE, BROUGHT BEFORE
SIX DIFFERENT JUDGES IN FOUR DIFFERENT ACTIONS DOES NOT CONSTITUTE
VEXATIOUS LITIGATION - THEN THERE IS NOT SUCH THING .......................................................................
III. DEFENDANT LOVISON AND KOSTY ARE BARRED BY THE COMPULSORY

COUNTERCLAIM RULE AS TO ANY DEFENDANT THAT THEY COULD OR SHOULD HAVE
SUED ......................................................................................................................................................................................................
IV. DEFENDANT LOVISON RELEASED ALL CLAIMS, KNOWN AND UNKNOWN, AGAINST
DEFENDANT CONDON AND CONDONS ASSOCIATES AND REPRESENTATIVES ................................
10
V. PLAINTIFFS FAIL TO PLEAD FRAUD WITH PARTICULARITY ....................................................................
10
VI. CONCLUSION ...........................................................................................................................................................................
13
142
Federal Case
Hernandez v. City of El Monte, 138 F3d 393, 398 (9th Cir. 1998) ..................................................................
Other
L.R. 83-1.2.1 .......................................................................................................................................................................
1, 7
MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY

I.
IF PLAINTIFFS AND MR. LUCALS FILING, RE-FILING AND RE-FILING AGAIN OF CLAIMS, ALL BASED
UPON THE SAME EVENTS AND TRANSACTIONS, IS NOT FORUM/JUDGE SHOPPING; THEN THERE IS NO
SUCH ANIMAL; AND LOCAL RULE 83-1.2.1 IS SUPERFLUOUS.
It is not permissible to dismiss and thereafter refile an action for the purpose of obtaining a different judge.
Local Rule 83-1.2.1; Hernandez v. City of El Monte, 138 F3d 393, 398 (9th Cir. 1998).
When Judge Guy-Schall denied Plaintiff Lovisons first ex parte application for appointment of receiver in early 2007; Mr.
Lucal decided to re-filed Plaintiff Lovisons claims in federal court:
15. In March 2007 and based on substantial evidence obtained from a number of sources, I filed an ex parte application for
the appointment of a receiver before the Honorable Lisa Guy-Schall in the San Diego Superior Court action. During the ex
parte hearing, Judge Guy-Schall stated that she does not appoint a receiver on an ex parte basis, did not consider the merits of
the application and set the receiver motion for a hearing to take place after the motion to change venue. After the hearing, I
realized that I could not seek any interim relief until the motion to change venue was decided, and, if the case was transferred,
could not seek any equitable relief while the case was in transit to Orange County.
16. After the ex parte hearing, I reviewed the facts and the law and determined that it was not advisable to oppose the
motion to change venue and determined that the action should go forward in Orange County. I elected to file the case in U.S.
District Court because the complaint did allege federal claims under the Lanham Act claims for trademark violation and for
alleged misappropriation of a U.S. patent and trademark.
Declaration of Richard A. Lucal in Opposition to Defendant Medianos Motion to Dismiss dated March 19, 2009 (Lucal
Decl), p 11, In 141/2 - p 12, In 161/2.
When Judge Stotler denied Plaintiffs first federal court ex parte application and motion for appointment of receiver and
dismissed Plaintiffs claims sua sponte, Plaintiff Lovison and Mr. Lucal returned their focus to the Orange County Superior
Court:
19. In May 2007, I filed a motion for the appointment of a receiver and for a preliminary injunction in the initial Lovison
District Court action.
20. At the July 2, 2007, hearing on the motion for the appointment of a receiver and for preliminary injunction which I
attended, Judge Stotler began the hearing by asking me to dismiss the case due to the predominance of the State Court causes
of action and the pendency of the State Court action. When I asked to be able to confer with my client and counsel for several
143
intervenors, Judge Stotler would not allow me to discuss a possible dismissal with interested counsel and/or my client and
eventually dismissed the case on the stated grounds that there was no substantial federal question...
21. After the initial Lovison District Court case was dismissed, Lovisons claims proceeded forward in Orange County
Superior Court.
Lucal Decl, p 14, In 4 - p 16, In 61/2.
When Plaintiff Lovison and Mr. Lucal disagreed with the Orange County Superior Court judge pre-trial rulings, they
dismissed their state court action and, on the very same day, re-filed their allegations as RICO claims in federal court.
25. From the orders issued by Judge Andler, I determined that Lovison could not obtain a fair trial, and
that pursuit of his state court claims would be prohibitive. Lovison would not be allowed reasonable
discovery and was being forced to try the same issues many times - some to the bench and some to a jury.
Despite the merit to Lovisons claims, it appeared that he would not be allowed to present them. With the
option available of joining other plaintiffs in pursuing a RICO action against Condon and other
defendants, Lovison elected to pursue RICO and to dismiss his state court action, without prejudice.
Lucal Decl, p 19, ln 19 - p 20, ln 1.

Mr. Lucal was decidedly less circumspect in voicing his opinion of Judge Andler in his June 27, 2008 declaration:
10. With regard to the Orange County Superior Court action filed by Lovison against Condon, et.al, and the dismissal of that
action, defendants misrepresent the nature of the proceedings. First, I am informed and believe that there was substantial
judicial bias taking place in that action which is identified, in part, in LOVISONs Verified Statement of Disqualification.
Judge Andlers order striking LOVISONs verified statement of disqualification is absolutely inaccurate when it claims that
LOVISON objected to certain rulings made by the Court. The allegations of misconduct and bias go much further than
simple disagreements with rulings made by the Court. Since the filing of that Statement, Judge Andler made a number of
rulings and took other actions which clearly demonstrated bias. My primary concerns regarding Judge Andler involved:
(a) concerns of a relationship between Judge Andler and attorney Thomas Malcolm (hired to be co-counsel for Trago
International after the time to file a 170.6 challenge had expired); The conduct of Judge Andler and deference given to
Malcolm, combined with their relationship as former officers/directors of the Orange County Association of Business Trial
Lawyers was concerning;
(b) Judge Andler granting an ex parte stay of discovery on relevancy grounds; Judge Andler bifurcated LOVISON s claim
for rescission of a February, 2005 Settlement Agreement and refused to allow discovery as to any issue not relevant to
rescission; Judge Andler set an expedited trial- despite stated concerns that defendants had systematically obstructed
discovery and were claiming nothing was relevant;
(c) When presented with overwhelming and conclusive evidence that Condon had committed perjury and that defense
counsel had suborned perjury and perpetrated fraud on the Court, Judge Andler stated, on the record, that perhaps this
conduct was his clients best strategic position.1
Mr. Lucals presentation of Judge Andlers position, of course, was as ludicrous as it was false. Judge Andler inferred no such
thing; and demonstrated extraordinary patience with Mr. Lucal.
(d) When faced with efforts by two additional Trago LP limited partners to consolidate their cases with or to intervene in the
Lovison action, Judge Andler denied the efforts and stated, on the record, that her goal was to divide and conquer. While it
is understandable that defendants would want to divide and conquer a number of limited partner victims of Condons
misconduct, it was surprising for the Court to adopt this position and clearly demonstrated bias at an early point;
(e) While granting a number of LOVISONs motions to compel discovery in early February, 2008, Judge Andler sanctioned
144
me for attempting to obtain competent financial records from Bank of America which I am informed and believe would have
conclusively demonstrated Condons illegal and fraudulent conduct; The motion to quash granted by Judge Andler was
supported by systematic perjured testimony and fraud on the Court; In response to a separate motion, Judge Andler did order
defendants to produce these financial records directly;
(f) While granting the motions to compel in early February, 2008, it was clear that Judge Andler would not continue the
April 1, 2008 trial and would not allow LOVISON to obtain the discovery ordered by the Court; At that point, I had no
choice but to file a Verified Statement of Disqualification; Only after I filed the Verified Statement of Disqualification, did
the Court entertain motions for sanctions and eventually continue the bifurcated rescission trial;
(g) I filed motions for terminating and other sanctions in early March, 2008 as a result of defendants systematical refusal to
produce documents and provide discovery ordered by the Court in its February, 2008 discovery orders; In response to these
motions, Judge Andler ordered defendants to provide further discovery; In her order and without defendants filing a motion
for reconsideration or other relief, Judge Andler granted defendants relief from the order to produce financial records on the
grounds stated by defendants that the order was a typo: Never in my experience have I seen a Court grant typo relief in the
manner done by Judge Andler;
(h) After the defendants systematically refused to produce documents ordered by the Court in two discovery orders, I filed a
further motion for terminating sanctions to be heard on May 1, 2008; The motion for terminating sanctions was supported by
substantial evidence and was opposed by clearly perjured declarations by defendants and counsel (this perjury is
demonstrated by a number of documents filed in support of the RICO motion for the appointment of a receiver); The Courts
tentative for the May 1, 2008 hearing invited counsel to submit on the papers; I was notified by defense counsel that they
would not appear at the hearing; In my experience, it is inconceivable for three defense firms (two of which were located
within 10 miles of the Court) to choose not to attend a hearing on a motion for terminating sanctions unless they had
foreknowledge that the motion would be denied; In the Courts ruling on May 2, 2008, Judge Andler determined that the
motions for terminating sanctions were untimely and should have been filed so as to have been heard prior to the order which
the defendants violated- a clear impossibility.
11. ... As a result of Judge Andlers unwillingness to allow LOVISON discovery even discovery ordered by the Court,
LOVISON further had no reason to believe that he would be allowed discovery on critical issues prior to any of the trials.
LOVISON simply elected to walk away from substantial claims in light of the hurdles having been placed before him by
defendants and the Court. LOVISON did elect to pursue some of his claims in the context of a RICO action.
Request for Judicial Notice (RFJN) in Support of Motion for Sanctions dated February, 2009 (M4Sanctions), p 5, lns
10-15, Exh 12, pp 000280-000288 [attaching the Declaration of Richard Lucal in Opposition to Defendants Ex Parte
Application for Dismissal of Plaintiffs Motion for Appointment of Receiver dated June 27, 2008, p 5, ln 21 - p 8, ln 23]; see
also RFJN in Support of Motion to Dismiss Complaint dated February 22, 2009 (M2Dismiss), p 6, lns 20-23, Exh 22, pp
000589-000626.
The pattern that emerges is that whenever Plaintiffs or Mr. Lucal fail to get what they want, it is always due to someone
elses systematic criminal fraud, subornation of perjury, or bias. Loosing over 30 or 40 motions before multiple judges in
multiple actions has failed to compel Plaintiffs or Mr. Lucal to consider the alternative and more likely explanation: Plaintiffs
do NOT have overwhelming evidence of anything, much less the sort of evidence and emergency required for the
extraordinary relief of appointment of a receiver.
The truth is that if Plaintiffs and Mr. Lucal sincerely believed that there was judicial bias, their remedy would have been to
seek appellate review. It was NOT proper to simply dismiss their case and seek a different judge. Local Rule 83.1.2.1
expressly prohibits such conduct.
Plaintiffs bad faith is further evidenced by Plaintiffs prior counsel, Mr. Cabanday, with whom Mr. Lucal testifies that he
worked closely, representation to this federal court under penalty of perjury that there were NO related actions. To this day,
even as Mr. Lucal files notices of related cases in some, but not every court, Mr. Lucal continues to promote this falsehood:
This first RICO action was not a related case and was substantially different from any case previously
145
filed by Lovison.
Lucal Decl, p 21, Ins 61/2-8. Needless to say, Judge Carter and Judge Stotler disagreed.
Two motions to dismiss and another motion for appointment of receiver later, Judge Stotler dismissed Plaintiffs RICO
claims with prejudice, and state claims without prejudice. That, however, did not stop Plaintiffs and Mr. Lucal from re-filing
their same federal RICO claims in the Los Angeles Superior Court, only this time in the derivative.
Even after remove and Defendant Medianos motion to dismiss Plaintiffs complaint, Mr. Lucal continues to pretend that he
is the only one actually following the law:
29. After MEDIANO filed his motion to dismiss, I amended the complaint to remove the derivative
RICO cause of action. I did this to simplify the issues going forward and to focus this case on necessary
relief. I intend to raise the derivative RICO claim after prevailing on the appeal from case number
SACV08-514. The only remaining claims consist of 10 state law claims - none of which have been even
partially adjudicated in any forum or have been the subject of any substantial discovery.
Lucal Decl, p 22 Ins 4-12 [for the substantial discovery Mr. Lucal did take, see Declaration of Richard Lucal in Support of
Plaintiffs Motion for Appointment of Receiver and for Preliminary Injunction dated June 17, 2008, p 2, Ins 9-16 and Lucal
Decl, Exhs 9 & 10].
The point is that Plaintiffs and Mr. Lucal should not have re-filed Plaintiffs federal RICO claims in state court in the first
place. Plaintiffs remedy, if deserving, will be realized on appeal. The fact remains, however, that even before Plaintiffs
most recent judge/forum shopping, Judge Stotler pointed out in footnote 2 of her October 6, 2008 Order dismissing Plaintiffs
federal RICO suit:
... defendants other arguments that plaintiff Lovison is forum shopping may be meritorious, ...
M2Dismiss RFJN, p 9, Ins 15-19, Exh 35, p 000981, Ins 26-28.

Plaintiffs and Mr. Lucal knew better. They just didnt expect to get caught.
II.
IF NINE SEPARATE MOTIONS FOR APPOINTMENT OF RECEIVER OVER THE COURSE OF TWO YEARS,
ALL BASED UPON THE SAME INADMISSIBLE EVIDENCE, BROUGHT BEFORE SIX DIFFERENT JUDGES
IN FOUR DIFFERENT ACTIONS DOES NOT CONSTITUTE VEXATIOUS LITIGATION - THEN THERE IS
NOT SUCH THING
III.
DEFENDANT LOVISON AND KOSTY ARE BARRED BY THE COMPULSORY COUNTERCLAIM RULE AS
TO ANY DEFENDANT THAT THEY COULD OR SHOULD HAVE SUED
Defendant Mediano quoted footnote 2 from Judge Stotlers October 6, 2008 Order in his Motion to Dismiss, and the
arguments made by prior counsel for other defendants in Plaintiffs preceding federal RICO case because the claims Plaintiffs
make in this action are the same. Plaintiffs knew of Defendant Mediano and of Defendant Medianos February 2005 email
when Plaintiff Lovison and Mr. Lucal brought their first lawsuit in late 2006. They knew of Defendant Mediano and of
Defendant Medianos February 2005 email before they brought each lawsuit thereafter.
146
It was only after Defendant Mediano refused to sign an untrue declaration that Plaintiff decide to serve him. It was only after
Defendant Mediano had the audacity to defend himself that he became a target defendant. See Declaration of Richard A.
Lucal in Opposition to Defendant Medianos Motion for Sanctions dated March 19, 1009, p 17, In 1. Turning a third-party
witness into a defendant because he did not have the information Mr. Lucal wanted him to have, and would not sign a
declaration under oath Plaintiffs counsel wanted him to sign, is absolutely unacceptable. If Mr. Boren or Mr. Balestra
believes they have viable claims against Mr. Mediano then they may pursue them. Using hearsay emails to justify fabrication
of claims by vexatious litigants, however, should not be tolerated.
Finally, just because Plaintiffs failed to name Defendant Mediano in their prior actions, does not make them any less guilty of
judge and forum shopping; nor less subject to the compulsory counterclaim rule. The law abhors piece-meal litigation.
Plaintiffs action should be dismissed with prejudice.
IV.
DEFENDANT LOVISON RELEASED ALL CLAIMS, KNOWN AND UNKNOWN, AGAINST DEFENDANT
CONDON AND CONDONS ASSOCIATES AND REPRESENTATIVES
If, arguendo, defendant Mediano was acting as Christopher Condons associate or representative in recommending to
Douglas Lovison that Mr. Lovison enter the February 12, 2005 Settlement Agreement and Mutual Release; then Mr.
Lovisons release of any and all claims, known or unknown, of CONDON . and [his] present and past officers, directors,
shareholders, partners, associates, employees, executors, administrators, representatives and successors and predecessors in
interest, set forth in Sections 4.2, and waiver of unknown claims in Section 4.3, also operated to release Defendant
Mediano.2 See Plaintiffs Verified First Amended Complaint, Exh 49, p 3; or M2Dismiss RFJN, p 2, Ins 6-10, Exh 1 000014
2
Plaintiffs allegations are pure fabrication.
It is not a matter of standing; it is a matter of waiver and release.
V.
PLAINTIFFS FAIL TO PLEAD FRAUD WITH PARTICULARITY
Plaintiffs make no real attempt to oppose Defendant Medianos arguments regarding lack of particularity except to claim that
their FAC does not lack particularity. Plaintiffs FAC first mentions Defendant Mediano on page 11, Ins 6-14:
15... Between 2002 and August, 2005, MEDIANO was the money manager for plaintiff DOUGLAS
LOVISON. MEDIANO conspired with the other defendants and participated in the misappropriation of
the TRAGO LP assets, the efforts to cover up the misappropriation of the assets and efforts to generate
revenue/investment from the of [sic] assets. For this, MEDIANO has been paid substantial sums of
money and has received ownership interests in TRAGO INTERNATIONAL.
On page 27, Ins 31/2-18 Plaintiffs mention that Defendant Mediano had written two emails in 2004. On page 49, In 21-p 50,
In 22, Plaintiffs next describe how Defendant Adsit extorted Mr. Lovisons signature by threatening to file litigation,
including against Defendant Mediano. Mr. Adsits communications, of course, were privileged under CCP 47(b).
Notwithstanding, Plaintiffs next turn the story on it head at p 53, In 22-p 55, In 25 by claiming that Defendant Medianos
February 2005 email stating that everyone would end up suing everyone unless Lovison settled was somehow part of
Defendant Medianos conspiracy with Defendants Condon and Adsit to extorted Mr. Lovisons signature on the
147
settlement agreement. See Plaintiffs FAC, Exh 48. What Defendant wrote back in February 2005, however, does not
constitute extortion by any stretch of the imagination. See Plaintiffs FAC, Exh 48.
On page 56, Ins 11-15, Plaintiffs allege:
83. Since that time, MEDIANO has engaged in other acts to support the conspiracy of defendants to
misappropriate the assets of TRAGO LP, to misappropriate monies generated from the assets, to cover up
the misappropriation of the assets, and to prevent other current and former TRAGO LP limited partners
from cooperating with those seeking recovery of the assets. To preclude other victims of the defendants
fraudulent and illegal conduct from cooperating with those engaged in litigation with CONDON,
MEDIANO has made systematic and blatantly false representations about LOVISON to other
current/former TRAGO LP limited partners. MEDIANO has claimed that LOVISON was a drug addict
or had otherwise engaged in wrongful conduct. MEDIANO knew these claims to be false at the time that
they were made. Plaintiffs are informed and believe that defendants have compensated MEDIANO for
this conduct with either cash, commissions on investment obtained, or additional stock in TRAGO
INTERNATIONAL (or other comanies owned b CONDON).
Plaintiffs allegations do not get much better. On page 83, ln 18-p 84, ln 12, Plaintiffs do list a number of purported securities
violations by Defendant Mediano in August 2006; however, they fail set forth any cause of action for securities fraud and
make no attempt to include those events in their one stand-along count against Defendant Mediano for alleged breach of
fiduciary duty. See Plaintiffs FAC, p 105, ln 7 - p 106, ln 191/2.
For all Plaintiffs supposed specificity, there is little or no detail. Plaintiffs go so far as to create a civil cause of action
called Aiding and Abetting Breach of Fiduciary Duty. Plaintiffs FAC, p 110. It is difficult to know what Plaintiffs are
claiming, much less the when, where, who or hows.
As for the claims by Plaintiffs Cardenas (Lovisons girlfriend), DeSoto & Kosty (Lovisons long-time friends), Plaintiffs
FAC utterly fails to disclose any relationship between these Plaintiffs and Defendant Mediano after 2004. To top it off,
Plaintiff Kosty verifies Plaintiffs FAC with the following:
I, George Kosty, am a plaintiff in this action. I have read the First Amended Complaint filed in this
action. I do not have personal knowledge of all of the information contained in the complaint. As to that
factual information based on my personal knowledge, it is true and correct. Other information contained
in the First Amended Complaint was compiled from the documents attached, discovery conducted in
litigation, other referenced documents, my agents, and employees/ consultants/managers of TRAGO LP.
As to the information obtained from those sources, I am informed and believe that information to be true
and correct.
Plaintiffs FAC, p 120; see pp 118-120 generally.

As Judge Stotler ruled in the prior case, Plaintiffs allegations are fail, on numerous grounds, including for lack of
particularity.
V.
CONCLUSION
Plaintiffs and Mr. Lucal are very adept at making accusations; but they have been unable to plead sufficient facts or offer
admissible evidence to prove their charges. Plaintiffs and Mr. Lucal have been every opportunity. Their problem is that their
claims simply lack merit. Mr. Lucals overwhelming evidence boils down to rumor, speculation and smoke screens.
148
Any claims Plaintiff Lovison had he released long ago; and he does not now sue for rescission.
Any claims Plaintiff Kosty had he forfeited when he failed to cross- complain in Trago Internationals original LASC case
against him.
While Mr. Lucal claims that plaintiffs Cardenas and DeSoto are new plaintiffs who have not had the opportunity to litigate
their claims; his own filing belie that claim. See Plaintiffs RFJN in Opposition to M4Sanctions filed by Defendant Mediano
dated March 19, 2009, Exh 19 (attaching the July 2, 2008 Declaration of Lee Durst, Esq. - Plaintiff DeSotos prior counsel
with regard to DeSotos prior Complaint in Intervention]. Both Cardenas and DeSoto have been filing declarations in support
of Lovisons actions for years. Even if Cardenas and DeSoto still had claims, their complicity with Plaintiff Lovison and Mr.
Lucal in judge/forum shopping and in attempting to mislead this and the underlying LASC Court; as well as their failure to
bring their actions sooner, bars any recovery. It is no oversight that neither is mentioned in connection with any of the claims
against Defendant Mediano. Their participation, according to Plaintiffs own Verified FAC rest entirely on Plaintiff
Lovisons allegations.
Defendant Mediano asks the Court to end Plaintiffs and Mr. Lucals abuse of the judicial process, waste of judicial
resources, and bad faith.
DATED: April 2, 2009
End of Document
149
Plaintiffs Opposition to Defendants Motion in Limine No. 9

Tori FERRARI, Plaintiff, v. Jose Maria BETANCOURT, and Does 1 through 25, Defendants. | Superior Court of
California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Tori FERRARI, Plaintiff, v. Jose Maria BETANCOURT, and..., 2008 WL 6855204...
2008 WL 6855204 (Cal.Superior) (Trial Motion, Memorandum and Affidavit)

San Diego County
Tori FERRARI, Plaintiff,
v.
Jose Maria BETANCOURT, and Does 1 through 25, Defendants.
No. GIC879385.
October 29, 2008.
Plaintiffs Opposition to Defendants Motion in Limine No. 9
Rocky K. Copley, Esq.; SBN 101628, Law Office of Rocky K. Copley, 550 West C Street, Suite 1150, San Diego, California
92101, Telephone (619) 232-3131, Facsimile (619) 232-1690, Attorney for Plaintiff Tori Ferrari.
Judge: Hon. Ronald L. Styn.
Dept.: C-62
Filed: 2/01/07
Trial: 10/31/08
TABLE OF CONTENTS
Table of Authorities ...........................................................................................................................................................................
ii
I. INTRODUCTION .........................................................................................................................................................................
II. EVIDENCE OF BENEFITS PAID TO PLAINTIFFS HEALTH CARE PROVIDERS ARE BARRED
BY THE COLLATERAL SOURCE RULE AND SHOULD BE PROPERLY EXCLUDED ...............................
III. PLAINTIFF IS ENTITLED TO RECOVER THE REASONABLE COST/VALUE OF THE

MEDICAL EXPENSES INCURRED NOT ONLY WHAT PRIVATE INSURANCE PAID IN CASH TO
THE HEALTH CARE PROVIDERS .........................................................................................................................................
A. Government Defendants and Medi-Cal Payments - the Hanif and Olszewski Decisions Do Not Alter the
Collateral Source Rule ......................................................................................................................................................................
B. Governmental Defendants and Private Health Insurance Payments - The Nishihama Decision Does Not
Compel Any Additional Exception to the Collateral Source Rule ....................................................................................
IV. SAN DIEGO SUPERIOR COURTS AGREE WITH PLAINTIFFS POSITION AND HAVE
REJECTED SIMILAR DEFENSE MOTIONS .......................................................................................................................
10
V. THE LEGISLATURE HAS RECOGNIZED THE COLLATERAL SOURCE RULE AND CREATED
EXCEPTIONS FOR DISCREET CLASSES OF DEFENDANTS, NONE OF WHICH DEFENDANT IN
THIS CASE IS A MEMBER .........................................................................................................................................................
11
A. The Legislature Has Recognized the Collateral Source Rule and Created Exceptions for Discreet Classes
of Defendants, None of Which Defendant in This Case is a Member .............................................................................
11
151
B. Nishihama Did Not Address the Collateral Source Rule ................................................................................................
12
VII. CONCLUSION ..........................................................................................................................................................................
15
State Cases
Arambula v. Wells (1999) 72 Cal.App.4th 1006.............................
2, 3, 15
Ginns v. Savage (1964) 61 Cal. 2d 520 .............................................
13
Grauberger v. St.Francis Hospital (N.D. Cal. 2001) 149

F.Supp.2d 1186 ..........................................................................................
Greer v. Buzgheia (2006) 141 Cal.App.4th 1150...........................
7, 9
Hanif v. Housing Authority of Yolo County (1988) 200

Cal.App.3d 635 ..........................................................................................
1, 2, 5-9, 12
Harris v. Capital Growth Investors XIV(1991) 52 Cal 3d

1142 ................................................................................................................
13
Helfend. v. Southern Cal.Rapid Transit Dist. (1970) 2 Cal.3d

1 .......................................................................................................................
2, 3, 6, S, 11, 12, 15
Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d ........................................
Katinuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 ..................
Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1 .........
Martin White v. Mary Ann (1856) 6 Cal. 462 ..................................
McKinney v. California Portland Cement Co., (2002) 96

Cal.App.4th 1214.......................................................................................
3, 4, 15
Nishihama v. City and County of San Francisco (2001) 93

Cal.App.4th 238 .......................................................................................
1, 2, 9, 13-15
Olszewski v. Scripps Health (2003) 30 Cal.4th 798 ......................
5-8, 12
Pacific Gas & Elec. Co. v. Sup. Ct. (1994) 28 Cal.App.4th

174 ..................................................................................................................
Parnell v. Adventist Health System/West (2005) 35 Cal.4th

595 ..................................................................................................................
6-8
People v. Banks (1959)53 Cal. 2d 370 ...............................................
13
Peri v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111 ......
152
Peterson v. Lamb Rubber Co. (1960) 54 Cal. 2d 339 ...................
13
Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125 .......
Security Pacific National Bank v. Wozab (1990) 51Cal. 3d

991 ................................................................................................................
13
Smock v. State of California, (2006) 138 Cal.App.4th 883.........
2, 4, 11
Southern Cal. Enterprises v. D.N. &E. Walter & Co. (1947)

78 Cal. App. 2d 750 ..................................................................................
13
Swanson v. St. Johns Regional Medical Center (2002) 97

Cal.App.4th 245 .........................................................................................
Tremeroli v. Austin Trailer Equip. Co. (1951) 102 Cal.App.

2d 464 ............................................................................................................
13
Out of State Cases

Acuar v. Letourneau (VA Supreme Court, 2000) 531 S.E. 2d
316 ..................................................................................................................
Statutes
42 C.F.R. 447.15 ......................................................................................
Business & Professions Code section 657 ......................................
5, 12
California Civil Code section 3045.1 ...............................................
7, 14
4, 11, 12
California Civil Code section 3521 ...................................................
12
Government Code section 985 ............................................................
3-5, 7-9, 11, 13
Other Authorities
CACI 3903A .............................................................................................
9 Witkin, Cal. Proc. (4th Ed. 1997) Appeal, 946 .....................
13
Out of State Cases

Acuar v. Letourneau (VA Supreme Court, 2000) 531 S.E. 2d
316 ..................................................................................................................
Statutes
C.F.R. 447.15 ............................................................................................
Business & Professions Code section 657 ......................................
5, 12
153
7, 14
4, 11, 12
California Civil Code section 3521 ...................................................
12
Government Code section 985 ............................................................
3-5 7-9, 11, 13
Other Authorities
CACI 3903A .............................................................................................
9 Witkin, Cal. Proc. (4th Ed. 1997) Appeal, 946 .....................
13
Plaintiff hereby submits the following opposition to defendants motion in limine no. 3:
I.
INTRODUCTION
Plaintiff suffered personal injuries as a result of being struck in the face by the defendant. Plaintiff had personal dental
insurance that covered some of her dental bills. In addition, plaintiff had workers compensation benefits and health
insurance that paid for some o the bills. And finally, plaintiff paid some of the bills herself.
The defendant is attempting to argue that under the decisions of Hanif v Housing Authority of Yolo County (1988) 200
Cal.App.3d 635, and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 238, that plaintiff is not entitled
to recover as damages any more than what was actually paid for her health care services by her collateral sources (health
insurance, rental insurance, and workers compensation). The defendant misreads the holdings of Nishihama and Hanif.
The defendant is attempting to circumvent the longstanding law of the collateral source rule. The defendants position is not
supported by the law in California.
II.
EVIDENCE OF BENEFITS PAID TO PLAINTIFFS HEALTH CARE PROVIDERS ARE BARRED BY THE
COLLATERAL SOURCE RULE AND SHOULD BE PROPERLY EXCLUDED
California has long adhered to the Collateral Source Rule. (See Helfend v. Southern Cal.Rapid Transit Dist. (1970) 2 Cal.3d
1; Peri v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111, 131; Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1,
8-10.) The do??rine is best described as follows, [I]f an injured party receives some compensation for his injuries from a
source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff
would otherwise collect from the tortfeasor. (Helfend, supra, at 6.) The rationale behind this rule is that, tortfeasors should
not recover a windfall from the thrift and foresight of persons who have actually or constructively secured insurance, pension
or disability benefits to provide for themselves and their families. A contrary rule, it is feared, would misallocate liability for
tort-caused losses and discourage people from obtaining benefits from independent collateral sources. (Arambula v. Wells
(1999) 72 Cal.App.4th 1006, 1009.) In Helfend, the California Supreme Court expressly held that the Collateral Source Rule
applies to benefits pa d under a medical insurance policy. Where a plaintiff has received benefits from his medical insurance
coverage, such collateral payment or indemnity should not be deducted from the damages which the plaintiff would
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otherwise collect from the tortfeasor. (Helfend, supra, at 6; see Arambula, supra, at 1012.)
Helfend not only remains good law and binding authority on all trial courts and appellate courts in the State of California, its
continuing accuracy and vitality is acknowledged by appellate decisions. Helfend is described as the most modern
articulation of the Collateral Source Rule. (See Lund, supra, at 8-10; Smock v. State of California, (2006) 138 Cal.App.4th
883, 888; Arambula, supra, at 1009; McKinney v. California Portland Cement Co., (2002) 96 Cal.App.4th 1214, 1222.
In 1999, in Arambula. the Fourth Appellate District, Division There, described 4 Helfend as the leading case, and observed
that, the Supreme Court allowed the motor??st to receive the advantage of his investment of years of insurance premiums to
assure his medical care. It stated, the tortfeasor should not gamer the benefits of his victims providence. (2 Cal 3d at pp.
9-10.) (Arambula, supra, at 1009.) The Arambula court explained that, [t]he collatera source rule operates both as a
substantive rule of damages and as a rule of evidence. (Id. at 1015.) As a substantive rule, Arambula relied on Helfend for
the proposition that a plaintiffs recovery can not be reduced by virtue of payment or indemnity from collateral sources. As
an evidentiary rule, it precludes the introduction of evidence of the plaintiff being compensated by a collateral source unless
there is a persuasive showing that such evidence is of substantial probative value for purposes other than reducing
damages. (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 733.) (Arambula at 1015.)
The key to the operation of the collateral source rule/doctrine is the independence of the payment or indemnity source from
the tortfeasor. For instance, in Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, the Second Appellate District,
Division Three, permitted evidence of, and an offset for, insurance payments made to the tort victim by insurance carried by
the county, but precluded evidence of payments and benefits provided to the victim by Aid to Families with Dependent
Children (AFDC), Medi-Cal, and a private charity hospital. The Scott court referred to Government Code section 985 as the
proper procedural approach to dealing with such collateral source benefits in a case against a public entity defendant. (Id. at
154.)
In 2002, Division One of the First Appellate District considered a request to reconstruct the collateral source doctrine and
permit evidence of, or an offset of, future economic losses for pension survivor benefits that wrongful death plaintiffs were
receiving. In McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, the court approvingly cited
Arambula, [t]he idea is that tortfeasors should not recover a windfall from the thrift and foresight of persons who have
actually or constructively secured insurance ... benefits to provide for themselves and their families. (McKinney, supra, at
1222.) The McKinney court also held that the Collateral Source Rule operates to prevent a defendant from reducing a
plaintiffs damages with evidence that the plaintiff received compensation form a source independent of the defendant (citing
Pacific Gas & Elec. Co. v. Sup. Ct. (1994) 28 Cal.App.4th 174, 176).
As recently as April 2006, the First Appellate District, Division Three, in Smock v. State (2006) 138 Cal.App.4th 883, once
again strongly upheld the collateral source doctrine against yet, another challenge to the application of the collateral source
rule to exclude from evidence and the computation of damages the payments a plaintiff receives from a source independent of
the wrongdoer. Though oft maligned, a form of the rule has been a part of our jurispr??dence since Californias earliest days
in the union. (See Martin White v. Mary Ann (1856) 6 Cal. 462,470-471.) (Smock, supra, 138 Cal.App.4th at 858.)
Time and time again, in cases that focus on both the evidentiary and substantive aspects of the collateral source doctrine,
there is no question as to the evidentiary or substantive measure of damages- the full charges come into evidence and are
recoverable. At present, there are only two exceptions to the collateral source rule: (1) California Government Code section
985 (relating to actions against government entities - providing for discovery of plaintiffs financial arrangements with
collateral payors, and also providing for a post verdict hearing to determine whether a public entity will pay damages for
which a collateral payor has paid or indemnified the plaintiff); and (2) California Civil Code section 3333.1 (providing for
introduction of collateral insurance information into evidence in actions against healthcare providers for Professional
negligence). Neither of these exceptions are applicable to this case.
Whether or not a plaintiff later owes reimbursement to a collateral insurer is not a proper consideration for determining the
value of healthcare services, just as it does not matter that a wrongful death claimant received life insurance benefits, or
whether disability payments an injured plaintiff receives are free and clear or subject to reimbursement in whole or in part.
The terms of the relationship between a plaintiff and his/her collateral insurers are legally indeterminate of the measure of
their damages (except under certain legislatively proscribed circumstances, such as the medical malpractice MICRA statutes
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and Cal. Govt. Code section 985, affecting governmental entity cases).
That the contractual reductions/write-downs/write-offs are or are not part of what a plaintiff may owe in contractual or
statutory reimbursement to a collateral insurer is a benefit of his/her coverage. Any, [a]mounts written off are as much of a
benefit for which [a plaintiff] paid consideration as are the actual cash payments made by his health insurance carrier to the
health care providers. The portions of medical expenses that health care providers write off constitute compensation or
indemnity received by a tort victim from a source collateral to the tortfeasor. (Acuar v. Letourneau (VA Supreme Court,
2000) 531 S.E. 2d 316, 322-323.) (See Lodgment of Foreign Authorities, filed and served concurrently herewith.)
In California, Business & Professions Code section 657 specifically calls for healthcare providers to give patients who have
no insurance and are not eligible for public assistance cash discounts, while making clear that the discounted rates are not to
be construed as the usual, customary or reasonable rates for the services provided. The statute also mandates that the
discounted rates may not be used for any other purpose. (Cal. Bus. & Prof Code 657(c).) If a cash reduction negotiated
directly by a patient is inadmissible, why should a cash discount negotiated by a patient health insurer be treated differently?
It should not.
III.
PLAINTIFF IS ENTITLED TO RECOVER THE REASONABLE COST/VALUE OF THE MEDICAL EXPENSES
INCURRED NOT ONLY WHAT PRIVATE INSURANCE PAID IN CASH TO THE HEALTH CARE PROVIDERS
A. Government Defendants and Medi-Cal Payments - the Hanif and Olszewski Decisions Do Not Alter the Collateral
Source Rule
A plaintiff in a personal injury case is entitled to recover the reasonable cost of the medical services provided to them as
the result of a tortfeasors negligence. (CACI 3903A.) Where a plaintiffs medical bills have been paid by Medi-Cal, there is
authority to limit the amount recoverable to the Medi-Cal payment. Hanif, supra, at 639; Olszewski v. Scripps Health (2003)
30 Cal.4th 798, 827. As opposed to private or public healthcare insurance patients who incur liability for the full hospital
charges (Parnell v. Adventist Health Svstem/West (2005) 35 Cal. 4th 595), Medi-Cal patients only incur liability in the event
of a third party recovery, and only to the extent of, MediCals subrogation and judgment lien rights (Welf. & Inst. Code
14124.70, et seq.). (Hanif, supra, at 640.) A qualified Medi-Cal patient bears no financial liability, debt or responsibility for
the medical services they receive. (42 C.F.R. 447.15.) Since the plaintiff in Hanif was only deemed to have personally paid
or incurred liability to the extent of Medi-Cals subrogation and judgment lien rights, the court modified the judgment to
reduce plaintiffs medical special damages to the amount paid by Medi-Cal. (Hanif, supra, at 644.)
Hanif did not call into question any aspect of the holding of Helfend. In Hanif, the defendant was a public entity, and the
injured plaintiffs medical bills were not wholly or partly indemnified for his loss by collateral insurance affected by him.
Rather, in Hanif, the plaintiff incurred liability only in the event of a third party recovery, and only to the extent of
Medi-Cals subrogation and judgment lien rights (Welf.& Inst. Code, 14124.70 et seq.) (Hanif, supra, at 640; See also,
42 C.F.R.447.15.) To the contrary, the Hanif court and every other court that has looked at this issue has said the measure of
recovery is the reasonable costs paid or incurred by the plaintiff. Fundamental principles underlying recovery of
compensatory damages in tort actions require that an injured plaintiff not recover from the tortfeasor more than the actual
amount he paid or for which he incurred liability for past medical care and services. (Hanif at 641; Emphasis added).
When the Supreme Court touched again upon this issue in the context of medically indigent patient-litigants in Olszewski, the
court upheld the Hanif limitation on recovers of damages as to Medi-Cal/Medicaid recipients, extending the holding to
include private party defendants. Even so, the Supreme Court only did so reluctantly when it invalidated California Welfare
and Institutions Code section 14124.791 provider liens by which the State of California sought to allow medical providers to
first pay back Medi-Cal, and then assert liens for their full charges against an injured plaintiffs third-party tort damages
recovery. By invalidating liens filed pursuant to section 14124.791, we give the third party tortfeasor a windfall at the
expense of the innocent health care provider. Because the provider may no longer assert a lien for the full cost of its services,
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the Medicaid beneficiary may only recover the amount payable under Medicaid as his or her medical expenses in an action
against a third party tortfeasor. (Olszewski at 827.)
The amounts Plaintiff actually paid or incurred are the proper measure of damages, not the amounts plaintiffs healthcare
indemnity insurer paid. The key here is to under stand that in the context of collateral insurance, the amounts incurred are
the full billed charges. In the collateral insurance circumstance, the patient has incurred debt for the entire charge rate. In
Parnell, the Supreme Court reviewed hospital liens under California Civil Code section 3045.1, also known as the Hospital
Lien Act (HLA). In doing so, the Court closely examined the basis of an HLA lien under California Civil Code section
3045.1, and held that the HLA ... is premised on a creditor-debtor relationship between the hospital and the patient. (Id. at
607.) Pursuant to he contract negotiated between the hospital and healthcare insurer in Parnell, the hospital agreed to accept
the contractual payment rates from the health care insurer (along with the contractual benefits of its relationship with the
health plan and co-payments from the patient) as payment in full. (Id. at 609.) The effect of this arrangement was that the
patients entire debt to the hospital was extinguished. (Id.) The debt that was extinguished was for the amount of the
reasonable and necessary charges of the hospital. (See Cal. Civil Code 3045.1.)
Since Plaintiff incurred the full charges (the debt that was recognized by the Parnell court), this amount determines
admissibility as well as recoverability of damages. There is no published authority holding that evidence of the reasonable
cost/value of the past medical specials is restricted to what was paid in cash by plaintiffs insurer. To the contrary, the entire
amount of the debt incurred is admissible. (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157.)
It is also worth noting that in Hanif, the defendant was a government entity and this fits within the California Government
Code section 985 exception to the collateral source rule. The Hanif opinion has also been subject to substantial criticism in
foreign jurisdictions for relying on the wrong section of the Restatement (Second) of Torts. Here, the defendant is not a
governmental entity nor is/was plaintiff eligible for Medi-Cal, making the Hanif/Olszewski limitations on recovery
inapplicable.
B. Governmental Defendants and Private Health Insurance Payments- The Nishihama Decision Does Not Compel Any
Additional Exception to the Collateral Source Rule
The only published decision in which a plaintiffs recovery was reduced, post verdict, by way of appellate remittitur to limit
the recovery to the amount paid in cash by a plain tiffs private health care insurer is Nishihama. Importantly, the Court of
Appeal in Nishihama relied extensively upon the decision in Grauberger v. St.Francis Hospital (N.D. Cal. 2001) 149 F.Supp.
2d 1186; yet that decision was vacated and the case was dismissed by a subsequent decision of the District Court in
Grauberger v. St.Francis Hospital (N.D. Cal. 2001) 169 F.Supp.2d 1172.
In Swanson v. St. Johns Regional Medical Center (2002) 97 Cal.App 4th 245, the Second Appellate District held that
statutory law is clear that a hospital (as opposed to an HMO) may assert a lien against a judgment or settlement in a personal
injury action for the usual charges (reasonable value) for its services, even if the injured plaintiff is not liable for that full
amount due to a reduced rate negotiated by the plaintiffs insurance carrier. The Court of Appeal in Swanson specifically
discussed that the language in Nishihama was dicta, and that the government defendant in Nishihama was entitled to reduce
damages to the actual amount paid, pursuant to California Government Code section 985(b). (Swanson at 248, fn. 2.) Further,
the Court of Appeal noted that the Grauberger decision had been vacated, and indeed declined to follow its prior holding.
(Swanson at 251, 252.)
The question of whether the recovery of medical special damage may be restricted to the amounts paid to indemnify
healthcare charges by a collateral insurer was not re ached by the California Supreme Court in Parnell, supra. Footnote 16 in
Parnell states, Because our holding relies solely on the absence of a debt underlying the lien, we do not reach, and express s
no opinion on, the following issues: (1) whether Olszewski v. Scripps Health, (2003) 30 Cal.4th 798, and Hanif v. Housing
Authority (1988) 200 Cal.App.3d 635, apply outside the Medicaid context and limit a patients tort recovery for medical
expenses to the amount actually paid by the patient notwithstanding the collateral source rule. (Id. at fn. 16.)
Since it did not reach that issue, the Supreme Court had no occasion to review the law in this regard, and had no occasion to
note that it had already expressed an opinion on that very question - namely that collateral payment or indemnity, should not
157
be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor. (Helfend, supra, 2 Cal.3d at
6.) Helfend remains good law, and binding authority on all trial courts and appellate courts in the State of California. If
collateral indemnity should not be deducted from the damages as a tortfeasor owes a plaintiff (Helfend), the Nishihama
decision, to the extent that it holds otherwise, is inconsistent with the existing binding Surepme Court authority. That this
shortcoming of the Nishihama decision has not drawn more attention is at least excusable by virtue of the fact that like the
Hanif decision, Nishihama involved a public entity defendant, and the post verdict reduction of plaintiffs recovery of
medical special damages is consistent with the statutory procedures and results provided for by California Government Code
section 985. In other words, the fact that the Nislrihama court reached the right decision, but for the wrong reason, does not
make the wrong reason sound precedent.
In Greer, supra, the Court described Hanif and Nishihama as cases which hold that an injured plaintiff in a tort action
cannot recover more than the amount of medical expenses actually paid or incurred, even if the market value of the services
is a greater sum. (Greer supra, 141 Cal.App.4th at 1157.) Stated in this manner, the holdings of Hanif and Nishihama
neither offend the collateral source rule nor the objective legal measure of medical special damages. The objective measure of
medical special damages which is the evidentiary or procedural aspect of the collateral source rule is not involved since the
holdings do not speak to restricting or excluding relevant, competent and admissible evidence of the reasonable cost or value
of past healthcare services. The substantive aspect of the rule - the measure of recovery - is not offended since the measure of
recovery is not solely the amounts paid, but also encompasses the amounts incurred, whether paid or not.
Most recently in Katinuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, the Third Appellate District, reversed a trial courts
ruling preventing the plaintiff from putting into evidence the full amount of medical charges incurred and thus limiting the
recovery to a discounted amount paid to settle plaintiffs medical expense debt by a financial services company which had
purchased patient accounts from the hospital. (Id. at 1298.) The court properly focused on established precedent that a
plaintiffs recovery is limited to the actual amount paid or for which he incurred liability for past medical care.... (Id. at
1296; Emphasis in original.) The court noted:
Under the trial courts ruling, plaintiffs are placed in a worse position than had the tort not been committed. Despite the fact
that plaintiffs are liable for the full amount of the medical bills, the tortfeasor is answerable only for a discounted rate paid by
a bill collector who bought the lien from a health care provider. The result is that plaintiffs are under compensated and the
tortfeasor receives a windfall. (Id. at 1296.)
Whether sold to MedFin or not, the charges billed to plaintiffs reflected on the reasonable value of the services they received.
A subsequent assignment of the bill to a third party cannot result in a decrease in the value of services that have already been
rendered. Yet that is exactly the effect of the trial courts ruling. (Id. at 1297.)
The fact that a hospital or doctor, for administrative or economic convenience, decides to sell a debt to a third party at a
discount does not reduce the value of the services provided in the first place. (Id. at 1298.)
While not a case involving private healthcare insurance, the analysis concerning the debt incurred by the patient/plaintiff at
the time the service is rendered is equally applicable.
While there is no reported appellate authority binding any trial court to reduce a jury verdict against a private defendant to the
amount paid in cash by a plaintiffs private health insurer, numerous trial courts have and are addressing this issue.
Evidence of what was paid to healthcare providers to satisfy the debts for care incurred by plaintiff are not relevant to any
issue in this case. Such evidence is plainly inadmissible. Plaintiff should be allowed to recover the full amount of $28,294.30
for her past medical expenses.
IV.
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SAN DIEGO SUPERIOR COURTS AGREE WITH PLAINTIFFS POSITION AND HAVE REJECTED SIMILAR
DEFENSE MOTIONS
Attached to this opposition are rulings by various trial judges in San Diego who addressed this issue. Plaintiff has attached a
ruling by Judge Lisa Guy-Schall, Judge of the Superior Court in San Diego County, in the case of Downs v. Coast Waste
Management, Inc., Case No. GIN049407. Judge Guy-Schall rejected a similar argument by a defendant. Also attached is an
order that was issued earlier this year by Judge Joan M. Lewis in Department 65 in the case of Smith v. San Diego Unified
School District, San Diego Superior Court Case No. GIC874128, which also rejected defendants argument.
V.
THE LEGISLATURE HAS RECOGNIZED THE COLLATERAL SOURCE RULE AND CREATED EXCEPTIONS
FOR DISCREET CLASSES OF DEFENDANTS, NONE OF WHICH DEFENDANT IN THIS CASE IS A MEMBER
A. The Legislature Has Recognized the Collateral Source Rule and Created Exceptions for Discreet Classes of
Defendants, None of Which Defendant in This Case is a Member
Although the collateral source rule developed at common law in California, it has since been recognized and adopted by the
Legislature. (See Gov. Code 985; Civ. Code 3333.1.) (Collateral Source Rule is partially abrogated as to medical
insurance benefits in actions against government entities and health care providers). To the extent that exceptions to the
collateral source rule are appropriate, the courts must defer to the legislature, which has taken upon itself to carve out
exceptions for certain discreet classes of defendants (of which defendant herein is not a member). (See Smock, supra, 138
Cal. App. 4th at 888 (If other modifications or limitations to [the Collateral Source Rule] are warranted, their creation is best
left to the Legislature); see also He?? fend, supra, 2 Cal. 3d at 13 (the proposed changes, if desirable, would be more
effectively accomplished through legislative reform).)
At present, there are only two such exceptions to the collateral source rule - Government Code section 985 (actions against
government entities - providing for discovery of collateral, sources and payments, and also providing for a post-verdict
hearing to determine whether a public entity will pay damages for which a collateral payor has paid or indemnified the
plaintiff), and Civil Code section 3333.1 (providing for introduction of collateral insurance information into evidence in
actions against health care providers for professional negligence).
In Helfend, supra, 2 Cal. 3d at 6, n. 2, the California Supreme Court held that the collateral source rule precludes a defendant
from reducing the plaintiffs damages through plaintiffs collateral contractual benefits. The Helfend court reserved the very
issue that confront d the Hanif court, where a plaintiff neither paid nor incurred responsibility for their medical services,
which were instead dealt with through independent public benefits: The question of gratuitous public benefits is not at issue
here and invokes a host of other concerns, which must be considered in light of their specific factual contexts. (Helfend,
supra, 2 Cal. 3d at 9.)
The resolution of the host of other concerns in California - as it affects plaintiffs recovery of damages - is that in addition
to independence from the tortfeasor, the operation of the collateral source rule in California requires that the plaintiff first pay
or incur those damages. (See Hanif, supra, 200 Cal. App. 3d 635; Olszewski, supra, 30 Cal. 4th 798.) The Olszewski court
was so disturbed that this rule shortchanged medical providers and relieved tortfeasors of liability for the full value of
medical services they caused, that the Supreme Court expressly asked that the legislature undertake to remedy the situation.
(Olszewski, supra, 30 Cal. 4th at 827.)
In both Government Code section 985 and Civil Code section 3333.1, the legislature also applied the maxim he who takes
the benefit must bear the burden (Civ. Code 3521) to tortfeasors by permitting the defendant to potentially reap a
plaintiffs collateral source benefits but offsetting that benefit by the cost of obtaining those benefits. Under Civ. Code
section 3333.1(a), if the defendant elects to introduce evidence of collateral insurance benefits, the plaintiff may introduce
evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning
which the defendant has introduced evidence. Under Government Code section 985(f)(3)(B), [t]he court shall deduct from
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the reimbursement or reduction the amount of premiums the court determines were paid by or on behalf of the plaintiff to the
provider of a collateral source payment.
Here, defendant wants more than what the legislature was willing to give Public entity and medical malpractice defendants.
Defendant wants a free lunch - the benefit of plaintiffs health insurance without bearing any of the cost of acquiring that
benefit.
B. Nishihama Did Not Address the Collateral Source Rule

Hanif cited Helfend and considered how Medi-Cals statutory lien right; fit with the collateral source rule. (Hanif, supra, 200
Cal. App. 3d at 639-40 (we note there is no question here that Medi-Cals payment for all injury-related medical care and
services does not preclude plaintiffs recovery from defendant, as special damages, of the amount [Medi-Cal] paid. This
follows from the collateral source rule. [citing Helfend, supra, 2 Cal. 3d at 6-16]).) That earned collateral financial benefits
(such as private health insurance) and unearned, publicly-funded benefits (such as Medi-Cal) deserve distinct treatment as
collateral sources is demonstrated by the separate treatment of these two categories of collateral benefits for purposes of
posttrial motions under Government Code section 985. (See Gov. Code 985(f), subsections (1) and (2).) Nishihama, on the
other hind, did not address, consider or analyze the collateral source rule, nor did it discuss whether the extension of Hanif to
the private health insurance context would violate the Supreme Courts decision in Helfend.
Cases are not authority for propositions not considered. (People v. tanks (1959) 53 Cal. 2d 370, 389; Peterson v.Lamb
Rubber Co. (1960) 54 Cal. 2d 339, 343; Ginns v. Savage (1964) 61 Cal. 2d 520, 524, n. 2 ([A] case does not stand for a
proposition neither discussed nor analyzed).) In Peterson v. Lamb Rubber Co., supra, 54 Cal. 2d at 343, the defendant cited
a case, Tremeroli v. Austin Trailer Equip. Co. (1951) 102 Cal. App. 2d 464, 477, which had proceeded on the theory that
privity is required between a consumer and manufacturer in order to recover on an implied warranty claim. However, the
Supreme Court refused to award the case any precedential value on that point because the theory had simply gone
unchallenged in the trial court and the appellate court and did not appear to have been disputed or argued at any point in the
case. (Peterson v. Lamb Rubber Co., supra, 54 Cal. 2d at 343.)
The language of an opinion must be construed with reference to tie facts and evidence presented in the case, and the
precedential value of the case is coextensive only with such facts. (Security Pacific National Bank v. Wozab (1990) 51Cal. 3d
991, 1003-04; 9 Witkin, Cal. Proc. (4th Ed. 1997) Appeal, 946, p. 988.) A litigant cannot find shelter under a rule
announced in a decision that is inapplicable to a different factual situation in his own case, nor may a decision of a court be
rested on quotations from previous opinions that are not pertinent by reason of dissimilarity of facts in the cited cases and in
those in the case under consideration. (Harris v. Capital Growth Investors XIV(1991) 52 Cal 3d 1142, 1157; Southern Cal.
Enterprises v. D.N. &E. Walter & Co. (1947) 78 Cal. App. 2d 750, 757.)
Nishihama, supra, 93 Cal. App. 4th 298, may not be accorded precedential value for propositions that were not raised by the
parties therein, nor considered or analyzed by the Court. In Nishihama, the defendant was a public entity. As such, it was
statutorily entitled to discovery of the identity of plaintiffs health insurer - Blue Cross -and that at the time of plaintiffs care,
Blue Cross had a contract with CPMC [plaintiffs hospital, California Pacific Medical Center] under which CPMC agreed that
Blue Cross would pay reduced rates for specified services rendered to members. (Id. at 306.)
The Nishihama Court was informed that although the jury had awarded $17,168 for CPMCs hospital charges, the hospital
had been actually paid only $3,600 (Plaintiff did not and does not contest the assertion that CPMC accepted $ 3,600 as
payment in full for the services provided) and that CMPC had filed a lien against the judgment reflecting its normal rates,
under Californias Hospital Lien Act (HLA), Civil Code sections 3045.1-3045.6. (Id. at 307 (emphasis added).
The defendant in Nishihama did not want to pay the HLA lien, and the plaintiff did not want to be put in the position of
having to accept the lesser amount in this action while risking the possibility that she win then have to pay a greater amount
to CPMC because of its lien. (Id. at 307.)
The Court found that CPMC has no lien rights in the damages awarded to plaintiff. (Id., at 306.) Since it was uncontested
that $3,600 was all that had been actually paid, the Nishihama Court found that the trial court erred in permitting the jury.to
160
award plaintiff any amount in excess of that for the services provided by CPMC. (Id.) The Nishihama Courts finding
that the jury improperly awarded plaintiff certain medical costs that she did not incur (Id. at 301; emphasis added) must be
placed in the context that the plaintiff did not claim or contest that she had incurred any other amount, that the hospital had
been paid any other amount, or that the collateral source rule precluded the defendant from reaping the benefits of plaintiffs
contract with her health insurer, Blue Cross. The Nishihama decision does not even mention the collateral source rule. It
simply is not considered, analyzed or discussed in the opinion.
Within five months of the Nishihama decision, the same three justice panel (Justices Stein, Swager and Marchiano of
Division One of the First District Court of Appeal) issued its decision in McKinney v. California Portland Cement Co. (2002)
96 Cal.App.4th 1214. Unlike Nishihama, in McKinney, the collateral source rule was analyzed and discussed by the court,
which declined to permit the tortfeasor to recover a windfall from the thrift and foresight of persons who have actually or
constructively secured insurance and recognized the rule that in a case in which a tort victim has received partial
compensation from medical insurance coverage entirely independent of the tortfeasor ... the collateral source rule []
foreclosed defendant from mitigating damages by means of the collateral payments. (Id. at 1222, citing Arambula, supra,
72 Cal. App. 4th at 1009, and Helfend, supra, 2 Cat 3d at 13-14; see Montgomery Ward, supra, 334 Ark. 561, cited by
Arambula, supra, 72 Cal. App. 4th at 1012 (Collateral Source Rule precludes defendant from benefitting from discount
plaintiff had negotiated with her medical provider).)
VII.
CONCLUSION
In conclusion, there is no legal authority presented by the defendant that precludes the plaintiff from introducing the full
amount of the bills that she was billed for health care services. The defendant is not entitled to circumvent the collateral
source rule. Therefore, this mot: on should be denied.
DATED: October 29, 2008
LAW OFFICE OF ROCKY K. COPLEY
By <<signature>>
Rocky K. Copley, Attorney for Plaintiff
TORI FERRARI
End of Document
161
Declaration of Richard Lucal in Opposition to Defendants Motion to

Dismiss
Tommy DESOTO, an individual; George Kosty, an individual; Steve Terrill, an individual; Antoinette Cardenas, an
individual; Fred Hood, an individual; and Douglas Lovison, an individual, and John Schumacher, as trustee of the
Schumacher Family Trust, Plaintiffs, v. Christopher CONDON, an individual; Richard Condon, an individual;
Michael Mediano, an individual; John Adsit, an individual; Trago LP, a British Virgin Islands limited partnership; FX
Holdings International | United States District Court, C.D. California.
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Comment:
Tommy DESOTO, an individual; George Kosty, an..., 2008 WL 4225011...
2008 WL 4225011 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit)

United States District Court, C.D. California.
Southern Division
Tommy DESOTO, an individual; George Kosty, an individual; Steve Terrill, an individual; Antoinette Cardenas,
an individual; Fred Hood, an individual; and Douglas Lovison, an individual, and John Schumacher, as trustee
of the Schumacher Family Trust, Plaintiffs,
v.
Christopher CONDON, an individual; Richard Condon, an individual; Michael Mediano, an individual; John
Adsit, an individual; Trago LP, a British Virgin Islands limited partnership; FX Holdings International Ltd, a
British Virgin Islands corporation; Trago USA, Inc., a California corporation; Trago International, Inc., a
Delaware corporation; Ct Holdings International, Inc., a Delaware corporation; Pulse Entertainment Group,
L.L.C., a Nevada limited liability company, Defendants.
No. 808CV00514.
July 7, 2008.
Date: July 21, 2008
Time: 8:30 a.m.
Courtroom: 9D
Action Filed: May 8, 2008
Declaration of Richard Lucal in Opposition to Defendants Motion to Dismiss
Orlando F. Cabanday (SBN 168131), Laura Ramos (SBN 186326), Hennelly & Grossfeld LLP, 4640 Admiralty Way, Suite
850, Marina Del Rey, CA 90292, Telephone: (310) 305-2100, Facsimile: (310) 305-2116, ocabanday@hgla.com,
lramos@hgla.com, Attorneys for Plaintiffs, Tommy Desoto, George Kosty, Steve Terrill, Antoinette Cardenas, Fred Hood,
Douglas Lovison, and John Schumacher, as trustee of the Schumacher Family Trust.
Assigned to: Hon. David O. Carter.
I, RICHARD LUCAL, declare as follows:
1. I am a licensed California attorney authorized to practice law in the Courts of the State of California and in the United
States District Court for the Central District of California. I was the attorney of record for Douglas Lovison in an action
previously filed in the United States District Court for the Central District of California entitled Lovison v. Condon, et.al.,
case number SACV07-408 AHS (hereinafter the District Court action). I have personal knowledge of the information
contained in this declaration and could provide competent testimony at a hearing or trial.
2. I was retained by Douglas Lovison to defend him in an action filed in Orange County Superior Court by CHRISTOPHER
CONDON and TRAGO INTERNATIONAL, INC. against Lovison and four other Trago LP limited partners (Montgomery,
Castillo, Kosty and Soto-Mares). This action was later re-filed in Los Angeles Superior Court. After I determined the lawsuit
to be frivolous and based on false allegations in the complaint (e.g. that Trago International had properly purchased the assets
of Trago LP for $500,000 cash in June, 2005), I filed a special motion to strike under California Code of Civil Procedure
section 425.16 in January, 2007. The initial motion to strike was taken off calendar in February 2007 when the Court granted
defendants leave to file an amended complaint. According to the March, 2007 First Amended Complaint served on me by
CONDON/TRAGO INTERNATIONAL, the allegations against Lovison and others related to an email campaign, and, in
opposition to LOVISONs anti-SLAPP motion, defendants identified only one email sent by LOVISON - an email
forwarding a cease-and-desist email to an individual identified in LOVISONs declaration as a creditor of TRAGO LP.
3. In April 2007, I filed a special motion to strike the First Amended Complaint which was denied on May 14, 2007. The
defendants opposed the motion with no substantial, competent evidence, misstated applicable California law and relied
163
heavily on objections to LOVISONs substantial supporting declarations. I filed a notice of appeal from the denial of the
special motion to strike on July 14, 2007, and two other defendants, including plaintiff Kosty, filed similar notices of appeal.
The Los Angeles Superior Court case has been stayed since that time as to Lovison, Kosty and the other appellant. Attached
as Exhibits 1 and 2 are the notices of appeal filed by Lovison and Kosty in the Los Angeles Superior Court action.
Defendants opposition brief for the appeal was to be filed on June 13, 2008, and has, to date, not been served on my office.
4. Since the Los Angeles Superior Court related only to an alleged email campaign in November 2006, involved only Condon
and Trago International and was filed in an inconvenient venue (the litigation was filed in Los Angeles because one
defendant, Castillo, lived there), I filed litigation on behalf of Lovison, individually and as a Trago LP limited partner, against
Condon, TRAGO INTERNATIONAL, TRAGO LP, CT HOLDINGS, TRAGO USA, and FX HOLDINGS
INTERNATIONAL in a separate San Diego County Superior Court action. The lawsuit did seek the return of the assets of
TRAGO LP. I determined that the lawsuit was not a mandatory counterclaim in the Los Angeles action for a number of
reasons. First, it did not relate to the alleged email campaign. Second, it involved a substantial number of parties not involved
in Los Angeles. Third, it involved derivative claims on behalf of Trago LP.
5. None of the defense counsel involved with the initial San Diego County litigation claimed that the lawsuit should have
been filed as a mandatory counterclaim in Los Angeles Superior Court. Instead, they filed a motion to change venue to
Orange County -keeping the two lawsuits separate. Attached as Exhibit 3 is a copy of the motion to change venue.
6. In March 2007 and based on substantial evidence obtained from a number of sources, I filed an ex parte application for the
appointment of a receiver before the Honorable Lisa Guy-Schall in the San Diego Superior Court action. During the ex parte
hearing, Judge Guy-Schall stated that she does not appoint a receiver on an ex parte basis, did not consider the merits of the
application and set the receiver motion for a hearing to take place after the motion to change venue. After the hearing, I
realized that I could not seek any interim relief until the motion to change venue was decided, and, if the case was transferred,
could not seek any equitable relief while the case was in transit to Orange County.
7. After the ex parte hearing, I reviewed the facts and the law and determined that it was not advisable to oppose the motion
to change venue and determined that the action should go forward in Orange County. I elected to file the case in U.S. District
Court because the complaint did allege Lanham Act claims for trademark violation and alleged misappropriation of a U.S.
patent and trademark. I filed the District Court action in April 2007 with Douglas Lovison as the only plaintiff and the first
cause of action being one for out-of-court rescission of a February 2005 Settlement Agreement. In addition to Lanham Act
claims for trademark infringement, LOVISON alleged a variety of causes of action under California law, including: (1)
partnership dissolution and accounting, (2) fraud, (3) breach of contract, (4) breach of fiduciary duty, (5) unfair business
practices, (6) false advertising, (7) misappropriation of trade secrets, (7) conversion, (8) fraudulent conveyance, and (9)
declaratory relief. A copy of the caption page to Lovisons First Amended Complaint which identifies the causes of actions
alleged is attached as Exhibit 4.
8. After filing the District Court action, I attempted to obtain a stipulation from defense counsel to dismiss the state court
action pending before Judge Guy-Schall. Defense counsel refused to stipulate to a dismissal of the State Court action unless
the dismissal was with prejudice. In my opposition papers to the motion to change venue, I asked the Court to dismiss the
state court action, without prejudice, in light of the filing of the District Court action in Orange County. At the hearing on the
motion to change venue, the State Court judge refused to dismiss the State Court action but ordered the action transferred to
Orange County Superior Court.
9. In the District Court action, defendants did not raise a claim that the case should have been filed in Los Angeles Superior
Court. By the time that Lovisons answer was due in the Los Angeles Superior Court case, the District Court action filed by
Lovison was pending, and Lovison could not properly raise any of the claims in Los Angeles Superior Court. A copy of the
answer filed by Condon to the First Amended Complaint in the Lovison District Court action is attached as Exhibit 5. Since
defendants had caused the Orange County Superior Court case to remain pending by not stipulating to a dismissal and since
the answer challenged Federal Court jurisdiction, I decided not to dismiss the Orange County Superior Court case until the
District Court decided any jurisdictional challenges.
10. In May 2007, I filed a motion for the appointment of a receiver and for a preliminary injunction in the Lovison District
Court action. At that time, I had only been able to take one deposition in the Los Angeles Superior Court action (Douglas
164
Denhart -former President of Trago International) between Lovison and Condon and had been unable to obtain any other
deposition or formal written discovery from Condons counsel. Defendants took the position that discovery was stayed
through the pendency of the Los Angeles Superior Court action either because (1) a special motion to strike had been filed, or
(2) there were other actions pending. A copy of the notice of motion and motion is attached as Exhibit 6. A copy of the
memorandum of points and authorities is attached as Exhibit 7. The supporting proposed order and reply memorandum of
points and authorities are attached as Exhibits 8 and 9.
11. At the July 2, 2007, hearing on the motion for the appointment of a receiver and for preliminary injunction which I
attended, Judge Stotler began the hearing by asking me to dismiss the case due to the predominance of the State Court causes
of action and the pendency of the State Court action. When I asked to be able to confer with my client and counsel for several
intervenors, Judge Stotler dismissed the case on the stated grounds that there was no substantial federal question. Judge
Stotlers three stated concerns were (1) a state court action was already pending and the state law claims predominated, (2) a
state court should resolve Lovisons rescission claim, and (3) a state court should decide the proper ownership of the
trademark to sell tequila using the trade name Trago. Because Judge Stotler was dismissing the case, without prejudice, she
stated, on the record, that she would be denying the motion for the appointment of a receiver without prejudice. NO
SUBSTANTIVE ISSUES WERE RESOLVED BY JUDGE STOTTLER AT THIS JULY 2, 2007 HEARING, and there was
absolutely no discussion of the merits of the receiver motion at this hearing. A copy of the transcript is attached hereto as
Exhibit 10. A copy of the order denying Lovisons receiver motion, without prejudice, is attached as Exhibit 11. A copy of
Judge Stotlers order dismissing the case, without prejudice is attached as Exhibit 12. A copy of Judge Stotlers order
denying defendants motion for attorneys fees is attached as Exhibit 13. In denying defendants motion for attorneys fees, in
particular, Judge Stotler order states: Neither of the parties litigation objectives with respect to the contract claim have been
substantially furthered by the judgment entered in this action. Rather, the Court found that the parties should pursue the
contract claim in state court where an action is already pending for that purpose. Judge Stotler never made a ruling on the
merits of any of Lovisons claims at any point during the short pendency of the District Court action, no discovery was
conducted and no substantive issues decided.
12. After the July 2, 2007, hearing, I did file a notice of appeal to the Ninth Circuit but abandoned the appeal in January
2008. Case number SACV07-408 AHS is no longer pending in any Court.
13. After the Lovison District Court case was dismissed, Lovisons claims proceeded forward in Orange County Superior
Court. While defendants had earlier agreed to consolidate pending actions filed by Montgomery and Lovison regarding Trago
LP, they took a new tact in August 2007 and opposed any consolidation of cases. They claimed that Lovisons rescission
claim should be bifurcated, and discovery severely limited to what defense counsel considered relevant to Lovisons
rescission claim. At the time the Orange County Superior Court case was going forward, the Los Angeles Superior Court
case was on appeal and stayed. Defendants made no effort to seek judicial consolidation of the Los Angeles and Orange
County Superior Court cases and did not seek to have Lovisons Orange County Superior Court case dismissed.
14. On October 1, 2007, defendants obtained an ex parte stay of discovery in Lovisons Orange County Superior Court case
on relevancy grounds. On November 8, 2007, defendants successfully opposed efforts by Trago LP limited partner, Ty
Montgomery, to consolidate and by Trago LP limited partner, Phillip Soto-Mares, to intervene. Defendants obtained an order
bifurcating Lovisons rescission claim and staying discovery on all issues not related to rescission. It was clear that these
efforts by defendants were specifically intended to prevent Lovison from obtaining discovery of suspected criminal and
tortuous acts by Condon and the other defendants. Because of substantial disputes over what was relevant to rescission,
discovery disputes were protracted, and I was forced to file or oppose over 15 discovery related motions. Attached as Exhibit
14 is a February 6, 2008, order relating to a number of discovery motions. Of note, the Court granted Lovisons motion to
compel the production of financial records from Trago International but also granted defendants motion to quash a subpoena
to Bank of America seeking the same records.
15. Without filing a motion for reconsideration, defendants took the position that there was a typo in the February 6, 2008,
order and refused to produce any Trago International financial records unrelating to alleged payments for the Trago LP
assets. In March, 2008 and after defendants systematically refused to comply with the February 6, 2008, order, I filed
motions for terminating or other sanctions. Defendants raised the typo issue in opposition to Lovisons motion and as to the
Trago International financial records. In the order attached as Exhibit 15, Judge Andler granted the requested typo relief
and would not order the production of financial records.
165
16. At a March 2008 status conference, Judge Andler decided to trifurcate the trial in the case. She determined that there
would be a declaratory relief trial on May 12, 2008. regarding the issue of whether Lovisons ownership interests in Trago
LP, Trago USA and FX Holdings International were ever transferred and whether the failure to transfer rendered the releases
in the February 12, 2005, Settlement Agreement invalid. A copy of Judge Andlers minute order is attached as Exhibit 16.
While this trial was initially scheduled for one day, it appeared that the trial might involve substantially more sub-issues than
contemplated. After this trial was completed and if Lovison prevailed, discovery would be opened and Lovison could move
forward with the remainder of his claims. If Lovison lost the first trial, there would be a second, potentially jury, trial on
Lovisons rescission claim. If Lovison prevailed on the rescission claim, there would be a third trial involving many of the
same issues, documents and witnesses presented to a jury on the balance of Lovisons claims. I estimated that the trials on the
rescission claim and Lovisons remaining claims would each take approximately 3 weeks and involve as many as 20
witnesses. This trifurcation of the trial would have cost Lovison an estimated $300,000 to $500,000 in legal fees and costs
and would have required the presentation of duplicative evidence to a judge or jury on potentially three separate occasions.
17. When the defendants systematically refused to produce information and documents responsive to the Courts March 2008
order granting discovery sanctions (exhibit 15), I filed a motion for terminating sanctions to be heard on May 1, 2008. The
motion for sanctions was supported by substantial evidence of defendants willful failure to produce critical information. The
Courts tentative invited counsel to submit on the pleadings. I received a call from defense counsel Malcolm that defendants
would submit on the pleadings. Despite the severity of the relief sought and the substantial nature of the evidence presented,
no defense counsel appeared at the hearing on the motion. The next day, Judge Andler issued an order denying my motions
for sanctions - stating that the motions for sanctions should have been filed no later than one week before the order was
issued which defendants violated. A copy of this order is attached as Exhibit 17. I made an ex parte application to have the
motions heard in conjunction with the May 12, 2008, trial, and the application was denied.
18. From the orders issued by Judge Andler, I determined that Lovison could not obtain a fair trial, and that pursuit of his
state court claims would be prohibitive. He would not be allowed reasonable discovery and was being forced to try the same
issues many times. Despite the merit to Lovisons claims, it appeared that he would not be allowed to present them. With the
option available of joining other plaintiffs in pursuing a RICO action against Condon and other defendants, Lovison elected
to pursue RICO and to dismiss his state court action, without prejudice. To date and as a result of the conduct of defendants,
Lovison has been prohibited from obtaining any substantive ruling on any key issue relating to the misconduct of Condon,
has been prohibited from obtaining key financial records and has been unable to have a single court evaluate the critical need
to appoint a receiver. With regard to the RICO action, I understand that Lovisons rescission claim is unnecessary. Lovison is
contending that the February 12, 2005, Settlement Agreement was obtained through extortion, is a RICO predicate act and is
void. Lovison is further contending that the releases in the Settlement Agreement are invalid and ineffective for a number of
reasons - including the failure of defendants to transfer Lovisons Trago LP ownership interest. I am unaware of any issue
that needed to be litigated or tried in state court to give Lovison standing to pursue any of his claims in the RICO action.
19. Defense counsel find fault with my decision to file a verified statement of disqualification challenging Judge Andler for
bias. In addition to the above, the verified statement identifies a number of critical concerns about the fairness of Judge
Andler and Lovisons ability to obtain a fair trial. Judge Andlers order striking LOVISONs verified statement of
disqualification is inaccurate when it claims that LOVISON only objected to certain rulings made by the Court and claimed
that Judge Andler was a member of an organization with one of the defense counsel. The allegations of misconduct and bias
go much further than simple disagreements with rulings made by the Court. My primary concerns regarding Judge Andler
involved:
(a) concerns of a relationship between Judge Andler and attorney Thomas Malcolm (hired to be co-counsel for Trago
International after the time to file a 170.6 challenge had expired); The conduct of Judge Andler and deference given to
Malcolm, combined with their relationship as former officers/directors of the Orange County Association of Business Trial
Lawyers was concerning; Of note, attorney Malcolm was NOT retained by Trago International to represent it in this action
despite his familiarity with the evidence.
(b) When presented with overwhelming and conclusive evidence that Condon had committed perjury and that defense
counsel had suborned perjury and perpetrated fraud on the Court, Judge Andler stated, on the record, that perhaps this
conduct was his clients best strategic position; (Ex. 18, pp. 19:9-15, 21-25 and 20:14-22) Excerpts from the November 8,
2007, hearing transcript are attached hereto as Exhibit 18;
166
(c) When faced with efforts by two additional Trago LP limited partners to consolidate their cases with or to intervene in the
Lovison action, Judge Andler denied the efforts and stated, on the record, that her goal was to divide and conquer. (See,
Ex. 18, p. 24:4-8); While it is understandable that defendants would want to divide and conquer a number of limited partner
victims of Condons misconduct, it was surprising for the Court to adopt this position and was an indication of bias;
(d) While granting the motions to compel in early February 2008, it was clear that Judge Andler would not continue the April
1, 2008, trial and would not allow LOVISON to obtain the discovery ordered by the Court; at that point, I had no choice but
to file a Verified Statement of Disqualification in late February, 2008; Only after I filed the Verified Statement of
Disqualification, did the Court entertain motions for sanctions and eventually continue the bifurcated rescission trial;
20. The pending RICO action is substantially different from LOVISONs prior District Court case before Judge Stotler.
There are a number of additional plaintiffs including TRAGO LP limited partners and an investor in TRAGO
INTERNATIONAL. There is no derivative action alleged. There is no claim for rescission asserted by LOVISON, no
Lanham Act alleged, no state law claims for breach of contract, conversion, misappropriation of trade secrets, partnership
dissolution and accounting, etc. There is no pending State Court action. There are a number of defendants not named in the
Lovison action. There are substantial RICO claims and minority shareholder claims for breach of fiduciary duty in the
context of the RICO claims. This action is not a related case and is substantially different from any case previously filed by
Lovison.
21. Despite the length of the RICO amended complaint and the number of exhibits attached, defendants were only able to
find a handful of claimed inaccuracies in the First Amended Complaint. As to the claim that the Agemian action did not
involve allegations as to fraud regarding Condon, this issue is clarified in a letter produced by defendants in the Orange
County Superior Court action which identifies that the Agemian case did include allegations of fraud by Condon. A copy of a
letter from Agemians counsel to Condons counsel and produced by defendants in the Orange County Superior Court case is
attached as Exhibit 19.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct, and that this
Declaration is made and dated this 7th day of July, 2008 at Vista, California.
End of Document
167
Unopposed Application for Final Approval of Class Action

Settlement; Memorandum of Points And Authorities in Support of
Approval; Declaration of Judge Edward A. Infante (Ret.); Exhibits
Catherine PETERMAN, on behalf of herself and all others similarly situated, Plaintiff, v. LINENSN THINGS, INC.,
and Does 1 through 20, Defendants. | Superior Court of California.
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Jurisdiction:
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Delivery Details
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Client ID:
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Comment:
Catherine PETERMAN, on behalf of herself and all others..., 2007 WL 5879549...

San Diego County
Catherine PETERMAN, on behalf of herself and all others similarly situated, Plaintiff,
v.
LINENSN THINGS, INC., and Does 1 through 20, Defendants.
No. GIC 869224.
June 15, 2007.
Unopposed Application for Final Approval of Class Action Settlement; Memorandum of Points And Authorities in
Support of Approval; Declaration of Judge Edward A. Infante (Ret.); Exhibits
Neil B. Fineman, Esq. - SBN 177915, James D. Norris, Esq. - SBN 188078, Fineman & Associates, 50 Civic Center Drive
West, Santa Ana, California 92701-4001, (714) 543-2200/Fax (714) 543-0054, Attorneys for Plaintiff, Catherine Peterman.
Judge: Steven R. Denton.
Dept.: 73
Dale: June 29, 2007
Time: 10:30 am.
TO THE HONORABLE STEVEN R. DENTON, JUDGE OF THE SUPERIOR COURT:
On March 29, 2007, this Court granted preliminary approval of the class action settlement in matter and Defendant provided
notice to the class of the pendency of the action and the pendency of the preliminarily approved settlement. The class
members had ample time to review the proposed settlement and file any objections to the approved settlement, Not a single
class member objected to the preliminarily approved settlement.
Accordingly, without objections to he settlement by the settlement class - and without opposition by Defendant - the
representative Plaintiff, Catherine Peterman, on behalf of herself and the settlement class, now submits this memorandum of
points and authorities in support of the parties request that the settlement be given final approval pursuant to California Code
of Civil Procedure section 382 and California Rule of Court rule 3769 on the grounds that the settlement remains fair,
reasonable, adequate, and in the best interests of the class.
Dated: June 14, 2007
FINEMAN & ASSOCIATES
By: <<signature>>
Neil B. Fineman
Class Counsel for Plaintiff, Catherine Peterman and the Class
TABLE OF CONTENTS
I. INTRODUCTION .........................................................................................................................................................................
1
169
II. LEGAL CONTENTIONS .........................................................................................................................................................
III. THIS COURT HAS ALREADY GRANTED PRELIMINARY APPROVAL OF THE SETTLEMENT
AGREEMENT ....................................................................................................................................................................................
IV. THE TRIAL COURTS ROLE IN REVIEWING THE SETTLEMENT AGREEMENT AT THE
FAIRNESS HEARING ....................................................................................................................................................................
V. THE PRELIMINARILY APPROVED SETTLEMENT AGREEMENT SUBSTANTIALLY BENEFITS

THE CLASS AND REMAINS FAIR, ADEQUATE, AND REASONABLE .............................................................
A. Certification of the Settlement Class .....................................................................................................................................
B. Primary Relief Defendants Compliance With Civil Code Section 1747.08 ...........................................................
C. Discount Voucher Awarded To The Class Members .......................................................................................................
D. Class Notice and Claims Administration Costs Paid By Defendant - Not By The Cass .....................................
E. Incentive Award to Plaintiff Paid By Defendant- Not By The Class ..........................................................................
F. Attorneys Fees and Costs Paid By Defendant - Not By The Class ..............................................................................
1. The Amount Of Fees Accurately Reflects Class Counsels Lodestar With A Modest Multiplier .......................
a. The Lodestar ....................................................................................................................................................................................
b. The Multiplier .................................................................................................................................................................................
i. The Novelty and Difficulty of the Questions Involved .....................................................................................................
ii. The Skills Displayed By Class Counsel And The Exceptional Results Obtained By Class Counsel ..............
iii. The Contingent Nature of the Fee Award Warrants an Enhanced Multiplier .........................................................
iv. Additional Factors Justifying A Positive Multiplier ........................................................................................................
2. The Modest Multiplier Of 1.9 Is Below the Average Range of acceptable Multipliers in Class Action
Litigation ...............................................................................................................................................................................................
VI. THE SETTLEMENT REMAINS FAIR, ADEQUATE, AND REASONABLE .................................................
A. The Settlement Was The Result Of Arms-Length Bargaining .....................................................................................
10
B. The Parties Engaged In Extensive Discovery .....................................................................................................................
10
C. Class Counsel Is Very Experienced In Similar Litigation ..............................................................................................
10
D. Not A Single Class Member Objected To The Proposed Settlement .........................................................................
11
VIII. CONCLUSION ........................................................................................................................................................................
11
DECLARATION OF NEIL B. FINEMAN ...............................................................................................................................
12
170
EXHIBIT 1 -DECLARATION OF HON. EDWARD A. INFANTE IN SUPPORT OF SETTLEMENT

EXHIBIT 2 -PRELIMINARY APPROVAL ORDER
Cases
7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135 ...........
4, 5
Chemical Bank v. City of Seattle (9th Cir., 1994) 19 F.3d 1291 .........................................................
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 ..........................................................................................
Downey Cares v. Downey Community Dev. Commn. (1987) 196 Cal.App.3d 983 ..................
11
Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794 ............................................................................
Florez v. Linens N Things, Inc. (2003) 108 Cal.App.4th 447 .............................................................
4, 13
Ketchum v. Moses (2001) 24 Cal.4th 1122 .................................................................................................
8-11
Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19 ..........................................................
10, 12
Officers for Justice v. Civil Service Comn, etc. (9th Cir.1982) 688 F.2d 615 ..............................
Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311 .....................................................................................
Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 ..............................................................
San Bernardino Valley Audubon Society v. County of San Bernardino (1984) 155
Cal.App.3d 738 .....................................................................................................................................................
Serrano v Priest (1977) 20 Cal.3d 25.............................................................................................................
8, 11
Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224 ............................................................
9, 12
Statutes
Civil Code section 1747.08 .............................................................................................................................
passim
Code of Civil Procedure section 382 ...........................................................................................................
Secondary Authority
Assem. Floor Analysis, 3d reading of Assem Bill No. 2533 (1995-1996 Reg. Seas.) May 15,
1996, pp. 1-2 ........................................................................................................................................................
Dept. Consumer Affairs, Analysis of Assem. Bill No. 1316 (1995-1996 Reg. Sess.) p. l ...........
171
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION

SETTLEMENT
I. INTRODUCTION
This action arose from Defendants policy and practice of utilizing particular credit card transaction forms in its California
stores from at least July 2005 until August 2006. The subject forms contained preprinted spaces designated for filling in a
credit card customers address and telephone number.
The subject forms were used when a customer, including a credit card paying customer, returned merchandise to one of
Defendants stores. During a return of merchandise, Defendants cashiers would ask the customer for his or her original sales
receipt and, if the customer used a credit card to make the purchase, the cashier asked for the customers credit card that was
used to make the purchase. During the return transaction, the cashier printed out a return credit card transaction slip which
included the name of the item returned, the refund amount, portions of the customers credit card number, and several blank
lines designated for the customer to fill in his or her name, address, and telephone number. Plaintiff alleged the use of these
forms violated Civil Code action 1747.08(a)(3).1 Defendant denies all liability.
1
Civil Code section 1747.08(a)(3) generally slates that it is unlawful for any person, firm, partnership, association, or corporation
which accepts credit cards in utilize in any credit card transaction a credit card form which contains preprinted spaces specifically
designed for filling in personal information of the cardholder.
II. LEGAL CONTENTIONS

Civil Code section 1747.08 is part of the Song-Beverly Credit Card Act and was designed to promote consumer protection.
(Florez v. Linens N Tings, Inc. (2003) 108 Cal.App.4th 447, 450.) Section 1747.08 was originally enacted as a response to
two principal privacy concerns: first, that with increased use of computer technology, very specific and personal information
about a consumers spending habits was being made available to anyone willing to pay for it; and second, that acts of
harassment and violence were being committed by store clerks who obtained customers phone numbers and addresses (Id. at
452.)
Additionally, the statute was intended to keep the customers credit card number separated from his or her personal
information such as address, telephone number, birth date, etc., in order to prevent thieves from obtaining both at the same
time (i.e. dumpster diving) and engaging in credit card fraud, usually over the telephone. (Assem. Floor Analysis, 3d
Reading of Assem. Bill No. 2533 (1995-1996 Reg Seas.) May 15, 1996, pp, 1-2.) When drafting 1747,08, the Legislature was
well aware that anyone with access to a consumers credit card number and address could access their credit history, open
credit in their name, or charge something in their name. (Dept. Consumer Affairs, Analysis of Assem. Bill No. 1316
(1995-1996 Reg. Sess.) p. 1.)
III. THIS COURT HAS ALREADY GRANTED PRELIMINARY APPROVAL OF THE SETTLEMENT
AGREEMENT
After extensive discovery and independent investigations by class counsel, the parties agreed to participate in a full-day
mediation with the Honorable Edward A, Infane (Ret.), a mediator with JAMS with over twenty five years experience in
mediating complex class actions. (Declaration of Judge Infante, attached as Exhibit 1.) At the conclusion of the mediation,
the parties reached a proposed settlement The settlement agreement was subsequently presented to this Court for preliminary
approval.
On March 29, 2007, this Court found that the settlement was fair, reasonable, and adequate. (Preliminary Approval Order
(PAO), attached as Exhibit 2.) The Court also approved of the methods and manner of disseminating the notice of
172
preliminary approval to the class. The class notice explained the basis of the action, the benefits to the class from the
proposed settlement, the amount of attorneys fees and cost to be paid by Defendant, and specific information describing how
a class member may opt-out or object to the settlement, At the completion of the notice period, not a single class member
objected to the fairness of the proposed settlement. Accordingly, without objection by any class member affected by the
preliminary approved settlement, the parties believe the settlement agreement should be given final approval and the action
dismissed with prejudice.
IV. THE TRIAL COURTS ROLE IN REVIEWING THE SETTLEMENT AGREEMENT AT THE FAIRNESS
HEARING
Discussing the criteria under which class action settlements should be reviewed, the court in Dunk v. Ford Motor Co. (1996)
48 Cal.App.4th 1794, wrote: Due regard, should be given to what is otherwise a private consensual agreement between the
parties. The inquiry must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the
product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is
fair, reasonable and adequate to all concerned. [Citation] (Id. at 1801.)
Neither the trial court nor this court (of appeal] is to reach any ultimate conclusions on the contested issues of fact and law
which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and
expensive litigation that induce consensual settlements. In other words, the settlement or fairness hearing is not to be turned
into a trial or rehearsal for trial on the merits. (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85
Cal.App.4th 1135, 1 45, citing with approval, Officers for Justice v. Civil Service Comn, etc. (9th Cir. 1982) 688 F.2d
615,625.)
V. THE PRELIMINARILY APPROVED SETTLEMENT AGREEMENT SUBSTANTIALLY BENEFITS THE

CLASS AND REMAINS FAIR ADEQUATE, AND REASONABLE
The terms and conditions of the settlement preliminarily approved by this Court, are as follows:
A. Certification Of The Settlement Class
For the purposes of settlement only, the parties agreed that this action meets the requirements of a class action pursuant to
Code of Civil Procedure section 382 and well-established California case law, i.e., the exist e of an ascertainable class; a
well-defined community of interest; predominant common questions of law or fact; representatives claims or defenses are
typical of the class; and the class representatives and their counsel can adequately represent the interests of the class. (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 704; Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
The Class was defined as:
All persons who, between July 18, 2005 and August 30, 2006, returned merchandise to a Linens N Thing store located in the
State of California, used a credit card to receive a refund, and were given a credit card transaction form that contained
preprinted spaces specifically designated for filling in the cardholders personal Identification information.2
The class does not include any persons who were employed by Linens N Things between July 18, 2005 and August 30, 2006, and
does not include any persons who timely submitted valid request for exclusion.
B. Primary Reli?? Defendants Compliance with California Civil Code Section 1748.08
173
The primary relief sought by Plaintiff was Defendants discontinuance of the use of the forms seeking customers personal
information. Under the proposed settlement, Defendant agreed not to provide customers who use a credit card to receive a
refund at a California Linens N Things store a credit card transaction form containing preprinted spaces specifically
designated for filling in a customers personal identification. Accordingly, as a result of this lawsuit, Defendant has changed
its practice and will no longer use the offending form in any of its stores throughout California.
C. Discount Voucher waded to the Class Members

While there were no pecuniary damages sustained by class members, Civil Code section 1747.08(e) allows the Court to
impose a statutory pena??ry against any party that utilizes the subject form. Defendant vigorously argued that it did not
violate section 1747.08 and therefore no penalty should be imposed. However, as part of the settlement, Defendant has
agreed to provide each class member who submits a timely and property completed claim form to an independent claims
administrator a 45% off discount voucher redeemable at any of its stores in California. The voucher has a maximum value of
$45.
D. Class Notice and Claims Administration Costs Paid By Defendant - Not By The Class
Defendant also agreed to bear all costs in providing formal notice to the class of the proposed settlement and all costs
associated with the claims administration process. Class notice was provided in statewide newspaper publications, in-sore
postings at all Linens N Things stores in California, and by posting notice on the internet.
F. Incentive A ward To Plaintiff Paid by Defendant - Not By The Class

Defendant also agreed to award the Plaintiff/Class Representative with an incentive award of $1,000. The award is made in
recognition of the substantial risk taken by Plaintiff in representing the class and the benefits conferred on class members.
The award is also made to compensate Plaintiff for her active involvement in the case, and the potential financial risks to
which she was exposed had she been unsuccessful in the action.
G. Attorneys Fees and Costs Paid by Defendant - Not By The Class

At the conclusion of the mediation with Judge Infante, Judge Infante opined that based upon the work involved in the
investigation and successful prosecution of the case and the results achieved for the benefit of California consumers weighed
against the risk involved to Ms. Peterman and the class in further litigation class counsel was entitled to a fee and cots award
of 140,000. Judge Infante believed this fee and coats award represent a fair and commensurate amount in view of the nature
of the suit, the amount of effort involved, the skill shown by experienced class counsel, the work involved in prosecuting this
matter, and the excellent results obtained by class counsel. (Infante Decl., Exhibit 1.) Linens N Thins concurred with the
mediators findings and agreed to pay this amount separate and apart from the benefits awarded to the class.
The fee and costs award preliminarily approved by this Court is reasonable and appropriate, especially in light of the fact that
class counsel negotiated a class wide settlement that requires Defendants to stop the statewide practice challenged in the
action and provides a potential benefit to the Class of up to $36,000,000.
1. The Amount Of Fees Accurately Reflects Class Counsels Lodestar With A Modest Multiplier
a. The Lodestar
In assessing fees, the Court begins with a lodestar figure based on the compilation of the time spent and reasonable hourly
174
compensation of each attorney involved in the presentation of the case. (Ketchum v. Moses (200 ) 24 Cal.4th 1122, 1131-32;
Serrano v. Priest (1977) 20 Cal.3d 25, 48.)
Pursuant to the contemporaneous time records maintained by class counsel, Neil B. Fineman of Fineman & Associates, Mr.
Fineman will have expended 196 hours on the investigation and prosecution of this action by the lime Defendants
compliance with the settlement has been finally determined. (Fineman Decl., 9, attached as Exhibit 2.) Mr. Finemans rate
for complex class action litigation is $375 per hour.3 (Fineman Decl., 12, Exhibit 2.)
3
Mr. Finemans 2007 hourly rate was recently approved by Judge Michael M. Anello (Department 29) of the San Diego Superior
Court, North County. Mr. Finemans 2005 hourly rate of $345 was approved in various complex consumer actions in San Diego
Superior Court by Judge Patricia A. Y. Cowen (Department 67); Judge Luis R. Vargas (Department 63); and Judge Lisa
Guy-Schall (Department 31).
b. The Multiplier
Once the lodestar is calculated, it may be enhanced with a multiplier. (Wershba v. Apple Computer, Inc. (2001) 91
Cal.App.4th 224, 254.) The objective of any multiplier is to provide lawyers involved in public interest litigation with a
financial incentive. (Ketchum, supra, 24 Cal.4th at 1123; see also, Press v. Lucky Sores, Inc. (1983) 34 Cal.3d 311, 322
[Purpose of multiplier is to reflect the broad impact of the results obtained and to compensate for the high quality of work
performed and the contingencies involved in undertaking this litigation].) If this bonus methodology did not exist, very
few lawyers could cake on the presentation of a class client given the investment of substantial time, effort, and money,
especially in light of the risks of recovering nothing. (Chemical Bank v. City f Seattle (9th Cir., 1994) 19 F.3d 1291, 1300).
Only when courts properly compensate experienced and able counsel for successful results, such as the settlement obtained
here, can they assure the continuing effectiveness of the remedies available through class actions. To accomplish this
objective, the fee award must be large enough to entice counsel to undertake difficult public interest cases. (San
Bernardino Valley Audubon Society v. County of San Bernardino (1984) 155 Cal.App.3d 738, 755.)
A positive multiplier is applied to the lodestar to take into account a variety of factors, including (1) the novelty and difficulty
of the questions involved; (2) the skill displayed and the results achieved; and (3) the contingent nature of the fee award.
(Ketchum, supra, 24 Cal.4th at 1132.)
i. The Novelty and Difficulty of the Questions Involved

Many of the issues involved in this action were highly technical in nature (e.g., the method and process of recording, storing,
and integrating customer information). Class counsel researched and reviewed numerous articles and white papers
discussing current information technology to better understand how customer information was being warehoused and
utilized. Further, class counsel retained expert consultants in marketing, consumer behavior, and consumer privacy interests
to assist in the investigation and successful prosecution of this action.
More significantly, the parties recognized that whether the subject forms violate Civil Code section 1747.08(a)(3) is a legal
issue that has never been determined by any of the California Courts of Appeal, thereby making the claims in this action very
novel.
ii. The Skills Displayed By Class Counsel And The Exceptional Results Obtained By Class Counsel
California courts often use the amount at stake, and the result obtained by counsel as relevant factors justifying
enhancement of a lodestar fee through use of a multiplier. (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19,
45, emphasis added.)
175
As a direct result of class counsels efforts, counsel was able to obtain certification of a class of approximately 800,000
members, an enforceable agreement ending Defendants previous policies and practices of collecting personal identification
from class members, and an award of a discount voucher worth up to $45 to each class member.
iii. The Contingent Nature of the Fee Award Warrants an Enhanced Multiplier
Class counsel agreed to represent Plaintiff and the class on a contingency fee basis. Accordingly, class counsel bore all of the
risk, not only for the time in investigating and prosecuting this matter, but also the costs incurred. Given that there was
absolutely no guarantee of success, the contingent nature of this action indicates a positive multiplier is appropriate. in
Ketchum, supra, our Supreme Court ratified the application of positive multiplier to a lodestar to reflect the contingent nature
of cases such as the one at bar:
Under our precedents, the unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include
any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.
The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk chat the attorney will not receive
payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor
fortuitous Rather, it is intended to approximate market. level compensation for such services, which typically includes a
premium for the risk of nonpayment or delay in payment of attorney fees. In this case, for example, the lodestar was
expressly based on the general local rate for legal services in a noncon??ingent matter, where a payment is certain regardless
of outcome. (Ketchum, supra, 24 Cal.4th at 1138, original italics.)
Additionally, a multiplier is appropriate because counsel essentially loaned their legal services to Plaintiff and the class
from the time counsel began investigating and litigating the claims until counsel actually gets paid. This loan of services is
properly rewarded with a positive multiplier;
The contingent fee compensates the lawyer not only for the legal services he renders but also for the loan of those services.
The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of
the client to the lawyer) is much high than that of conventional loans. [Citation]. (Ketchum, supra, 24 Cal.4th at 1132-33.)
(See also, Serrano, supra, 20 Cal.3d at 49; and Downey Cares v. Downey Community Dev. Commn. (1987) 196 Cal.App.3d
983, 997 [Enhanced fees in contingent fee case recognize the delay in receipt of full payment of fees].)
iv. Additional Factors Justify Applying A Positive Multiplier

Class counsel secured a settlement of this action instead of engaging in additional years of protracted litigation through trial
and certain appeal. Accordingly, a positive multiplier is warranted. Considering that our Supreme Court has placed an
extraordinarily high value on settlement, it would seem counsel should be rewarded, not punished, for helping to achieve that
goal. (Lealao, supra, 82 Cal.App.4th at 52, citing Merola v. Atlantic Richfield Company (3d Cir. 1975) 515 F.2d 165, 168
[reward attorney who secures a substantial benefit for his clients with a minimum of time invested]; lowing v Pfizer, Inc.,
supra, 922 F.Supp. 1261, 1282-1283 [reward attorney in case settled in swift and efficient fashion]; Arenson v. Board of
Trade of City of Chicago (N.D.Ill. 1974) 372 F.Supp. 1349, 1358 [awarding a fee four times the normal hourly rate on
ground that, if the case had not settled and gone to verdict, there is no doubt that the number of hours of lawyers time
expended would be more than quadruple the number of hours expended to date].)
2. The Modest Multiplier Of 1.9 Is Below the Average Range of Acceptable Multipliers in Class Action Litigation
The preliminarily approved amount of fees and costs to be paid by Defendant reflects class counsels lodestar and a
multiplier of 1.9. This multiplier is below the range of many other acceptable multipliers in California litigation. (See,
Wershba, supra, 91 Cal.App.4th at 255 [Multipliers can range from 2 to 4 or even higher].)
176
VI. THE SETTLEMENT REMAINS FAIR, ADEQUATE, AND REASONABLE

This Court has already determined that the settlement in this action is fair. reasonable, and adequate - and the class, having
had a sufficient opportunity to review the settlement - has agreed. The Courts previous determination was supported by
ample case law identifying the factors necessary for a presumption of fairness: (1) the settlement was reached through
arms-length bargaining; (2) investigation and discovery were sufficient to allow counsel and the court to act intelligently; (3)
counsel is experienced in similar litigation; and (4) the percentage of objectors is small. (Wershba, supra. 91 Cal.App.4th at
245).
A. The Settlement Was The Resu?? of Arms-Length Bargaining

The parties negotiated each settlement tern that eventually formed the basis of the settlement agreement in good faith. Aside
from significant time spent on discovery, investigations, and research, a large bulk of the time incurred by class counsel in
litigating this case was spent on negotiating fair and reasonable settlement terms with defense counsel before, during, and
after the mediation of the case. All of the final settlement terms set forth in the settlement agreement were the byproduct of
those arms-length negotiations.
B. The Parties Engaged In Direct, Fact-Specific Discovery

Early in the litigation, the parties engaged in direct, fact-specific discovery in order to obtain essential facts and
documentation to evaluate liability and damages. Class counsel also performed their own independent research consisting of
exhaustive reviews of trade literature, web-based mailing list resellers civil dockets, and Defendants filings state and federal
authorities. Counsel also consulted with identity theft expert, third-party information brokers, and direct and target marketing
firms.
Class counsel reviewed documents in response to discovery requests and independently produced documents. Through both
formal and informal discovery, research in relevant electronic databases, review of trade literature, expert consultations and
evaluation, and the able assistance of Judge Infante, the settling parties were sufficiently informed of the nature of the claims
and defenses to be in an ideal position to evaluate the proposed settlement for its fairness, adequacy, and reasonableness.
C. Class Counsel Is Very Experienced In Similar Litigation.

Class counsel, Neil B. Fineman of Fineman & Associates, is considered by many to be an expert on Californias
Song-Beverly Credit Card Act. Mr. Fineman was lead class counsel in the seminal credit card/privacy rights case, Florez v.
Linens N Things, Inc. (2003) 108 Cal.App.4th 447, and he is the author of Protecting Consumer Privacy During Credit Card
Purchases, published in the Business Law News, a publication of the State Bar of California. Mr. Fineman exclusively
represents plaintiffs in consumer class actions asserting violations of many of Californias consumer protection statutes,
including the Consumers Legal Remedies Act and Californias Unfair Competition Law. He has served as sole class counsel
or as lead class counsel in approximately fifty certified class actions within the last twelve years most involving hundreds of
thousands of class members.
D. Not A Single Class Member Objected To The Proposed Settlement

Defendants fully complied with the Courts Order requiring them to provide adequate notice of the proposed settlement of the
class action. The Defendants employed an experienced settlement administrator to carry out the task. The class notice in this
177
matter described this action and the proposed settlement, identified the benefits provided to the class pursuant to the
settlement, identified the amount of attorneys fees and costs that would be paid by Defendants under the settlement, and
provided detailed information on how a class member may object to the settlement or be excluded from the settlement.
After providing significant notice of the proposed settlement and giving the class sufficient opportunity to review the Courts
file and all of the terms of the settlement agreement not a sing class member objected to the settlement.
VII. CONCLUSION
Based upon the foregoing, the parties believe the Court should grant final approval to the settlement of this class action. The
settlement is highly beneficial to the class and will efficiently, economically, and favorably resolve what would otherwise be
protected and expensive litigation. Further, not a single class member objected to the terms of the settlement or the negotiated
attorneys fees and costs award. Accordingly, the parties jointly request that the settlement be given final approval and a
Final Order and Judgment be entered by the Court.
Respectfully submitted,
FINEMAN & ASSOCIATES
By: <<signature>>
Neil B. Fineman
Class Counsel for Plaintiff, Catherine Peterman and the Class
DECLARATION OF NEIL B. FINEMAN

I, Neil B. Fineman, declare as follows:
1. I am an attorney duly licensed and admitted to the Bar of the State of California; the United States District Court for the
Central District of California; the United States Court of Appeals for the Ninth Circuit; and the Supreme Court of the United
States.
2. I am the attorney of record for Plaintiff and the class in this action. 1 have personal knowledge of the facts stated in this
declaration except as to those stated on information and belief, and if called as a witness I could and would testify
competently thereto.
THE SETTLEMENT IS FAIR ADEQUATE AND REASONABLE AND RECEIVED NO OBJECTIONS

3. I have been appointed class counsel in numerous complex class actions and I have been asked to review class action
settlements in cases in which I have not been involved as counsel.
4. It is my belief based upon my experience and skills that the settlement reached in this matter is fair, adequate and
reasonable to the class and the litigants. The settlement firs and foremost puts an end to Defendants practice of collecting
personal identification information from its customers, which will decrease the chances of identity theft, fraud, and
harassment, as identified by the Legislature when it drafted Civil Code section 1747.08. Additionally, the settlement offers up
to $36 million in saving to the approximately 800,000 class members trough a simple claims-made process.
178
5. The fairness of the settlement is also reflected by the fact that after the Court initially found the settlement to be fair,
reasonable, and adequate, not a single class member objected to the proposed settlement.
6. in addition to the fairness of the class benefits provided under the settlement to the settlement class, I believe my firm
provided efficient and skillful representation in the action, and helped to achieve a result that is fair, reasonable and adequate.
Therefore, I believe the fees and costs award preliminarily approved by this Court, are also fair and reasonable. Further, none
of the fees and costs incurred in the investigation and prosecution of this litigation were borne by the class; the fees and costs
are to be paid by Defendant separate and apart from settlement benefits available to the class.
GENERAL EXPERIENCE AND QUALIFICATIONS

7. in my practice I exclusively represent plaintiffs in consumer actions asserting violations of many of Californias consumer
protection statues, including the Consumers Legal
Remedies Act the Song-Beverly Credit Card Act; and the Unfair Competition Law. I have served as the sole class counsel or
as lead class counsel in approximately 50 certified class actions within the last twelve years, including the seminal 1747.08
case, Florez v. Linens N Things Inc. (2003) 108 Cal.App.4th 447. I am also the author of Protecting Consumer Privacy
During Credit Card Purchases, published in the State Bar of California publication, Business Law News, volume 22, issue 3
(2003).
8. In the course of my career, I have been actively involved in a number of organizations seeking to promote the interests of
consumers and the general public, including: the National Association of Consumer Advocates (www.naca.net), a non-profit
corporation whose mission is to promote justice for all consumers and to serve as a voice for its members as well as
consumers in the ongoing struggle to curb unfair and abusive business practices; Consumer Attorneys of California
(www.caoc.net), a professional association for attorneys who represent plaintiffs/consumers who seek responsibility from
wrongdoers; and The Privacy Rights Clearinghouse in San Diego, California, (www.privacyrights.org), which has asked me
to render expert opinions on privacy rights matters of concern to their members and the general public, which I provide pro
bono. The Privacy Rights Clearinghouse is a nonprofit consumer organization with a two-part mission -- consumer
information and consumer advocacy.
ATTORNEYS FEES AND COSTS

9. My law offices time and expense computations are as follows: 176 billable hours expended on the case from inception,
and I expect to spend another 20 hours to conclude the action by (1) monitoring Defendants compliance with the settlement
over the following six to twelve months; (2) monitoring the claims administrators compliance over the following six months;
(3) resolving any disputes between the class and the Defendant or claims administrator and (4) addressing any other concerns
of he class members.
10. Below is a summary of the current billable hours incurred in my investigation and prosecution of this action:
Conferences, Meetings, Negotiations
33 hours
Legal Research and Review
35 hours
Draft/Review Memos, Briefs, Agreements
46 hours
Discovery, Investigations; Leg. Review
34 hours
179
Hearings Settlement Review, Travel, Prep
13 hours
Necessary Miscellaneous
15 hours
Conclusion (Estimate)
20 hours
11. I record my time into an electronic timekeeping system on a daily basis in six minute increments. [have reviewed all of
the time charges, exercised billing judgment and have concluded hat all of the remaining entries are reasonable and
appropriate, While I understand that [i]n California, an attorney need not submit contemporaneous time records in order to
recover attorneys fees, and [t]estimony of an attorney as to the number of hours worked on a particular case is sufficient,
(Martino v. Denevi (1986) 182 Cal.App.3d 553, 559), should the Court request it, I will submit to the Court printouts of my
detailed time records for in camera review.
12. While I believe that each of my time entries accurately reflects the reasonable time spent on each particular matter, in
exercising my billing judgment I reduced my time entries depending upon the task performed, the expertise necessary to
complete the task, and duplications in effort and work, and omitted those hours from the lodestar calculation.
13. At present, my professional rate for consumer class action litigation is $375.00 per hour. This hourly rate is based upon a
review of the current market rate for experienced Southern California attorneys practicing in the specialized field of complex
consumer class action litigation. This rate is within the range of those charged by attorneys of similar experience and skill in
this field of law and locality. My hourly rate was most recently approved in March of this year by Judge Michael M. Anello,
Department 29 of the San Diego Superior Court. My 2005 hourly rate of $345 was approved in various complex consumer
actions filed in San Diego Superior Court by Judge Patricia A. Y. Cowen (Department 67); Judge Luis R. Vargas
(Department 63); and Judge Lisa Guy-Schall (Department 31).
14. There are very few attorneys in California who exclusively concentrate in representing plaintiffs in consumer class
actions. This is due in part to the specialized and complex nature of the statutory law applicable to such claims and partly due
to the fact that consumers are rarely able to afford to pay counsel to perform those services. Given the contingent nature of
the practice, few lawyers are attracted to consumer cases, and even fewer succeed in this type of practice. Consumer class
actions are not simple, and the potential for loss is substantial given the extraordinary resources of state and local
governme??s, corporations, and trade organizations and the efforts that they undertake to avoid liability in these types of
actions.
15. Pursuant to the agreement with my client, payment of services and costs were completely contingent upon the outcome of
this litigation - if Plaintiff and the Class prevailed, our firm would negotiate the payment of foes with the opposing party or
seek a judicial determination of the fees plus any multiplier or percentage of a fund the Court may award. We would also
seek the costs Plaintiff and the Class have incurred in the investigation and prosecution this action.
16. Pursuant to the preliminarily approved settlement agreement, Defendant agreed to compensate Plaintiff and the Class for
their fees and costs in the amount of $140,000. The amount of attorneys fees and costs will be paid by Defendants separate
and apart from the class relief and will not reduce the class relief in any respect. The amount of attorneys fees reflects class
counsels lodestar incurred in the investigation and successful prosecution of the two actions and a very modest multiplier of
approximately 1.9.
I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct.
Executed on June 4, 2007, at Santa Ana, California.
180
<<signature>>
Neil B. Fineman
End of Document
181
Defendants Memorandum of Points and Authorities in Support of

Their Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss
First Amended Complaint
Wallace LUMBER and Hardware, Inc., a California corporation, Plaintiff, v. COUNTY OF SAN DIEGO; Nancy
Boyce, and Does 1 through 100, inclusive, Defendants. | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Wallace LUMBER and Hardware, Inc., a California..., 2006 WL 4016085...

Wallace LUMBER and Hardware, Inc., a California corporation, Plaintiff,
v.
COUNTY OF SAN DIEGO; Nancy Boyce, and Does 1 through 100, inclusive, Defendants.
No. 06 CV 2067 LAB POR.
December 7, 2006.
Defendants Memorandum of Points and Authorities in Support of Their Federal Rule of Civil Procedure 12(b)(6)
Motion to Dismiss First Amended Complaint
John J. Sansone, County Counsel, County of San Diego, By Thomas D. Bunton, Senior Deputy (State Bar No. 193560), 1600
Pacific Highway, Room 355, San Diego, California 92101, Telephone: (619) 531-6456, Attorneys for Defendants County of
San Diego and Nancy Boyce.
The Honorable Larry A. Bums.
Date: March 5, 2007
Time: 10:30 a.m.
Courtroom: 9 Second Floor
TOPICAL INDEX
TABLE OF AUTHORITIES ..........................................................................................................................................................
ii
I INTRODUCTION ...........................................................................................................................................................................
II FACTS/PROCEDURAL HISTORY ......................................................................................................................................
III PLAINTIFFS CLAIMS CANNOT BE HEARD IN THIS COURT BECAUSE PLAINTIFF HAS NOT
BEEN DENIED JUST COMPENSATION IN STATE COURT .................................................................................
A. Plaintiffs Due Process Claim Also Fails .............................................................................................................................
IV PLAINTIFFS SECTION 1983 CLAIMS CANNOT BE BASED ON A VIOLATION OF STATE

LAW .......................................................................................................................................................................................................
V PUNITIVE DAMAGES CANNOT BE AWARDED AGAINST THE COUNTY FOR VIOLATING

SECTION 1983 ...................................................................................................................................................................................
VI CONCLUSION .............................................................................................................................................................................
CASES
Anderson v. Warner, 451 F.3d 1063 (9th Cir. 2006) ........................................................................
4
183
Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1995) .....................................................................
Gillette v. Delmore, 979 F. 2d 1342 (9th Cir. 1992) ........................................................................
5-6
Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F. 3d 651 (9th Cir. 2 003 ) ..
Macri v. King County, 126 F.3d 1125 (9th Cir. 1997) ....................................................................
4, 5, 6
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978) ..................................
Newport v. Facts Concerts, Inc., 453 U.S. 247 (1981) ....................................................................
San Remo Hotel v. City & County of San Francisco, 145 F.3d 1095 (9th Cir. 1998) ..........
Squaw Valley Development Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) ...........................
Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) ...........................
3, 4, 5
Ybarra v. Bastian, 647 F.2d 891 (9th Cir. 1981) ...............................................................................
STATUTES
California Code of Civil Procedure
section 1255.010 ...........................................................................................................................................
section 1255.030(a) ......................................................................................................................................
section 1255.410 ...........................................................................................................................................
section 1255.420 ...........................................................................................................................................
section 1255.430 ...........................................................................................................................................
section 1255.450 ...........................................................................................................................................
California Constitution
article I, section 19 .......................................................................................................................................
Federal Rule of Civil Procedure 12(b)(6) ............................................................................................
United States Code title 42, section 1983 ............................................................................................
passim
United States Constitution Fifth Amendment .....................................................................................
Defendants County of San Diego and Nancy Boyce (collectively the County) submit the following memorandum of points
and authorities in support of their Federal Rule of Civil Procedure 12(b)(6) motion to dismiss plaintiff Wallace Lumber &
Hardware, Inc.s First Amended Complaint for failure to state a claim upon which relief may be granted.
I.
184
INTRODUCTION
Plaintiffs First Amended Complaint is frivolous. Plaintiffs 42 U.S.C. section 1983 claims are based on its contention that it
has been denied just compensation for the taking of its property in violation of the Takings Clause of the Fifth Amendment.
However, plaintiff does not allege -- because it cannot -- that it has sought and been denied just compensation in California
state court. Under controlling Supreme Court and Ninth Circuit precedent, plaintiffs failure to have first sought and been
denied just compensation in state court is fatal to its federal law claims.
Moreover, to the extent plaintiff alleges that the County violated plaintiffs substantive due process rights, that claim is also
fatally defective. The Ninth Circuit has held that a plaintiff cannot escape the exhaustion of state court remedies requirement
by alleging a substantive due process claim. Since plaintiffs claim arises out of its right to just compensation for the taking
of its property, that claim is governed by the Takings Clause of the Fifth Amendment.
Plaintiffs Section 1983 claims are also based on alleged violations of the California Constitution and California statutes. It is
well-established, however, that violations of state law cannot be the basis for a Section 1983 claim. Plaintiffs First Amended
Complaint should be dismissed for this additional reason.
Plaintiff also requests punitive damages against the County for allegedly violating Section 1983. However, the Supreme
Court has held that punitive damages may not be awarded against municipalities for Section 1983 violations.
II.
FACTS/PROCEDURAL HISTORY
Erwin O. Jones and Walter E. Wallace own property, as tenants in common, in unincorporated San Diego County. (First
Amended Complaint (FAC), at 6.) The property is located at 27455 Valley Center Road, Valley Center, California (the
Property). (Id.) Plaintiff Wallace Lumber & Hardware, Inc. leases the Property from Messrs. Jones and Wallace. (Id. at
8.) Plaintiff operates a lumber yard and hardware store on the Property. (Id.)
The County has commenced eminent domain proceedings in San Diego County Superior Court to acquire a portion of the
Property for the widening of Valley Center Road. (Id. at 10.) The County filed an eminent domain lawsuit against Messrs.
Jones and Wallace in San Diego County Superior Court on January 13, 2005. (Id.) The County did not name Wallace Lumber
& Hardware, Inc. as a defendant in the Superior Court lawsuit. (Id.)
On November 16, 2004, the County deposited with the Superior Court $83,700 as probable compensation for the Property.
(Id. at 10.) A public entity is authorized by Californias Eminent Domain Law to deposit probable compensation with the
court. Cal. Code Civ. Proc 1255.010. On January 19, 2005, the County filed an Application for an Order of Possession of
the Property in the San Diego County Superior Court. (Id. at 11.) Under California law, a public entity may apply to the
Superior Court for an order giving that entity possession of property prior to the entry of judgment. Cal. Code Civ. Proc
1255.410. On January 20, 2005, San Diego County Superior Court Judge Lisa Guy-Schall issued an order giving the County
possession of the portion of the Property needed for the Countys road widening project. (Complaint, at 12.)
On September 22, 2006, plaintiff filed this action against the County, alleging causes of action for (1) violation of the Fifth
Amendment to the United States Constitution, (2) violation of 42 U.S.C. 1983, (3) violation of 42 U.S.C. 1983 (Monell),
(4) violation of article I, section 19 of the California Constitution, (5) inverse condemnation and (6) trespass.
On October 13, 2006, the County filed a Motion to Dismiss plaintiffs complaint. Also on October 13, 2006, the County
served a Motion for Sanctions on Donald W. Detisch, attorney for the plaintiff, requesting sanctions for the filing of a
frivolous complaint. On November 7, 2006, the County filed the Motion for Sanctions with this Court. The hearing on these
motions was scheduled for December 11, 2006.
185
Plaintiffs opposition to the Countys Motion to Dismiss and Mr. Detischs opposition to the Motion for Sanctions were due
on November 27, 2006. No oppositions were filed to those motions. Instead, on November 27, 2006, plaintiff filed a First
Amended Complaint.
The First Amended Complaint alleges two causes of action: (1) violation of 42 U.S.C. 1983, and (2) violation of 42 U.S.C.
1983 (Monell).
III.
PLAINTIFFS CLAIMS CANNOT BE HEARD IN THIS COURT BECAUSE PLAINTIFF HAS NOT BEEN
DENIED JUST COMPENSATION IN STATE COURT
Plaintiffs causes of action seek just compensation for the Countys taking of its property under the Fifth Amendment to
the United States Constitution. However, under binding United States Supreme Court precedent, a takings claim cannot be
heard in federal court unless a plaintiff has first sought just compensation in state court and been denied that compensation.
Since plaintiff does not allege that it has sought and been denied just compensation in California state court, plaintiffs First
Amended Complaint should be dismissed.
In Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court held that if a state allows a
takings claim or inverse condemnation claim to be brought in state court, the plaintiff must pursue his takings claim in the
state forum, rather than federal court:
[I]f a State provides an adequate procedure for seeking just compensation,1 the property owner cannot claim a violation of the
Just Compensation Clause until it has used the procedure and been denied just compensation.
California provides an adequate procedure for seeking just compensation. San Remo Hotel v. City & County of San Francisco, 145
F.3d 1095, 1102 (9th Cir.1998) (Californias inverse condemnation procedures are adequate to address a ... takings claim.)
(citation omitted).
Under Tennessee Law, a property owner may bring an inverse condemnation action to obtain just compensation for an
alleged taking of property under certain circumstances.... Respondent has not shown that the inverse condemnation procedure
is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature.
473 U.S. at 195-96. Macri v. King County, 126 F. 3d 1125, 1129 (9th Cir. 1997) (The Fifth Amendment is not offended by
the government taking property, but only by the government taking property without just compensation. Thus, a Fifth
Amendment takings claim is not ripe until the plaintiff has been denied compensation by the state. If a state has an adequate
procedure for compensation, until this procedure has been exhausted and the plaintiff denied compensation, no taking has
occurred.) (citation omitted) (emphasis added).
Plaintiffs Fifth Amendment takings claims are brought pursuant to 42 U.S.C. section 1983, as they must be. Hacienda Valley
Mobile Estates v. City of Morgan Hill, 353 F. 3d 651, 655 (9th Cir. 2003) (Taking claims must be brought under 1983.)
(citation omitted) Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring
federal constitutional and statutory challenges to actions by state and local officials. Anderson v. Warner, 451 F.3d 1063,
1067 (9th Cir. 2006) (citation omitted). Both of the Section 1983 claims contained in First Amended Complaint are
predicated upon alleged violations of the Fifth Amendments Takings Clause. (First Amended Complaint, at 26, 31.)
Since Fifth Amendment takings claims can only be heard in federal court through Section 1983, Williamson Countys
ripeness requirement applies to Section 1983 claims that are predicated upon a violation of the Fifth Amendments Takings
Clause. Williamson County, 473 U.S. at 194 n.13 ([B]ecause the Fifth Amendment proscribes takings without just
compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional
right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a 1983
186
action.) (emphasis in original).

Further, the reference to Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978) in the second cause of action
does not eliminate the Williamson County ripeness requirement. In Monell, the Supreme Court held that municipalities are
persons subject to damages liability under section 1983 where action pursuant to official municipal policy of some nature
causes a constitutional tort. Gillette v. Delmore, 979 F. 2d 1342, 1346 (9th Cir. 1992) (quoting Monell, 436 U.S. at 691).
The predicate constitutional claim that is the basis of the second cause of action is an alleged violation of the Fifth
Amendments Takings Clause. (First Amended Complaint, at 29.) Thus, Williamson Countys ripeness requirement is
applicable.
Plaintiff does not allege in either of its causes of action -- because it cannot -- that it has sought just compensation in
California state court and been denied that compensation. Therefore, the First Amended Complaint should be dismissed,
without leave to amend.
A. Plaintiffs Due Process Claim Also Fails.
Plaintiff asserts in its first cause of action that the County took plaintiffs property interest without just compensation and
without due process. (Complaint, at 27.) Plaintiff has apparently attempted to state a claim for violation of its substantive
due process rights. Macri, 126 F. 3d at 1128 (Appellants claims invoked the substantive protections of the Fourteenth
Amendments Due Process Clause (nor shall any State deprive any person of life, liberty, or property, without due process of
law) ....
In Macri, the Ninth Circuit held that a plaintiff cannot escape Williamson Countys exhaustion requirement by attempting to
state a claim under the Fifth Amendments substantive Due Process Clause. The Ninth Circuit held that [w]hen an explicit
textual provision of the Constitution protects against the challenged government action, the claim must be analyzed under
that specific provision alone and not under the more general guarantee of substantive due process. 126 F. 3d at 1128
(citation omitted). The court noted that the appellants complaint alleges that King County violated their right to due process
and took their property without just compensation contrary to the Fourteenth and Fifth Amendments. Id. at 1129. The Ninth
Circuit held that [s]ince the Takings Clause provides an explicit source of constitutional protection against the challenged
governmental conduct, substantive due process has no place in this context. Id. (citations and internal quotation marks
omitted). Accord Squaw Valley Dev. Co. v. Coldberg, 375 F.3d 936, 949 (9th Cir. 2004) ([W]e have consistently precluded
substantive due process claims based on a deprivation of property addressed by the Takings Clause. The blanket prohibition
applies even to a disguised takings claim.) (citation and internal quotation marks omitted); Armendariz v. Penman, 75 F.3d
1311, 1325-26 (9th Cir. 1995) (Substantive due process analysis has no place in contexts already addressed by explicit
textual provisions of constitutional protection, regardless of whether the plaintiffs potential claims under those amendments
have merit.).
Because plaintiffs substantive due process claim is based on a deprivation of property addressed by the Takings Clause,
plaintiffs substantive due process claim should be dismissed.
Plaintiff does not allege that its procedural due process rights have been violated in the San Diego County Superior Court
eminent domain action filed by the County. Indeed, plaintiff admits that it is not yet a party to that action.2 (FAC, at 10.) To
the extent that plaintiff complains that the County improperly obtained an order of possession of the Property from the San
Diego Superior Court, there are several methods available under Californias Eminent Domain Law to obtain relief from an
order of possession. (Id., at 11, 26.) The property owner or the occupant of the property may seek relief from the order of
possession based upon substantial hardship. Cal. Code of Civ. Proc. 1255.420. Further, if the property owner objects to the
government entitys right to take the property, the court may stay the order of possession if the property owner has shown a
reasonable probability that it will prevail on its objection. Id. at 1255.430. The court is also authorized to vacate an order of
possession if the order was obtained without satisfaction of all of the requirements of California law. Id. at 1255.450.
2
The County has filed a motion to amend its complaint to add Wallace Lumber &
187
Hardware, Inc. as a defendant in the San Diego Superior Court eminent domain action it filed against Messrs. Jones and
Wallace. The hearing on the Countys motion is currently scheduled for December 15, 2006.
Plaintiff does not allege, because it cannot, that either it or Messrs. Wallace and
Jones utilized any of these procedural safeguards that protect against the erroneous issuance of an order of possession.
Having failed to avail themselves of these procedural safeguards, plaintiff cannot maintain a procedural due process claim in
this Court.
Plaintiff also complains that the amount initially deposited by the County into the
Superior Court as probable just compensation for the Property was too low. (Complaint, at 12, 14, 29.) However,
Californias Eminent Domain Law provides procedural safeguards available to property owners if they believe that the
government entitys deposit is too low. Under California law, a property owner or any party having an interest in the
property for which the deposit was made may bring a motion seeking an increase in the amount of the deposit. Cal. Code
Civ. Proc 1255.030(a). Plaintiff does not allege -- because it cannot -- that it brought a motion in the San Diego County
Superior Court seeking an increase in the amount deposited by the County. Having failed to avail itself of the procedural
protections available under California law, plaintiff has no viable claim that its procedural due process rights have been
violated by the County.
For these reasons, plaintiffs First Amended Complaint should be dismissed, without leave to amend.
IV.
PLAINTIFFS SECTION 1983 CLAIMS CANNOT BE BASED ON A VIOLATION OF STATE LAW
Plaintiffs section 1983 claims appear to be based on alleged violations of the California Constitution and California state
law. (FAC, at 18, 20, 21, 22, 26). This is clearly improper. It is well established that Section 1983 protects against the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Only federal rights, privileges, or
immunities are protected by the section. Violations of state law alone are insufficient. Ybarra v. Bastian, 647 F.2d 891, 892
(9th Cir. 1981) (emphasis added). Therefore, alleged violations of the California Constitution or California state law cannot
be the basis for plaintiffs Section 1983 claims and those claims should be dismissed for this additional reason.
V.
PUNITIVE DAMAGES CANNOT BE AWARDED AGAINST THE COUNTY FOR VIOLATING SECTION 1983
Plaintiff has requested punitive damages against the County under Section 1983. (Payer For Relief, Second Cause of Action,
at 4). The Supreme Court has held that punitive damages cannot be imposed against municipalities under Section 1983.
Newport v. Facts Concerts, Inc., 453 U.S. 247, 271 (1981) ( we hold that a municipality is immune from punitive
damages). Therefore, this requested relief should be dismissed for this additional reason.
VI.
CONCLUSION
For all of the foregoing reasons, the Countys Motion to Dismiss should be granted in its entirety, without leave to amend.
188
DATED:
JOHN J. SANSONE, County Counsel
By
THOMAS D. BUNTON, Senior Deputy
Attorneys for Defendants County of San Diego and Nancy Boyce
End of Document
189
First Amended Complaint Request for Jury

WALLACE LUMBER AND HARDWARE, INC., a California corporation, Plaintiff, v. COUNTY OF SAN DIEGO,
Nancy Boyce, and Does 1 through 100, inclusive, Defendants. | United States District Court, S.D. California.
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WALLACE LUMBER AND HARDWARE, INC., a California corporation, Plaintiff,
v.
COUNTY OF SAN DIEGO, Nancy Boyce, and Does 1 through 100, inclusive, Defendants.
No. 06CV 2067 LAB POR.
November 27, 2006.
First Amended Complaint Request for Jury
Donald W. Detisch, Esq. (Bar No. 47675), Law Offices of Don Detisch, 110 West A Street, Suite 750, San Diego,
California 92101, Telephone (619) 515-1140, Facsimile (619) 235-9100, Attorneys for Plaintiff Wallace Lumber and
Hardware, Inc.
Plaintiff, WALLACE LUMBER AND HARDWARD, INC., alleges as follows:
I.
GENERAL ALLEGATIONS
1. Plaintiff, WALLACE LUMBER AND HARDWARE, INC., (PLAINTIFF) is, and at all relevant times mentioned
herein, was a California corporation duly organized and operating under the laws of the State of California.
2. PLAINTIFF is informed and believes and thereon alleges that Defendant, COUNTY OF SAN DIEGO (COUNTY) is,
and, at all relevant times mentioned herein, was a political subdivision of the State of California, created and existing under
the laws of California.
3. PLAINTIFF is informed and believes and thereon alleges that Defendant, NANCY BOYCE (BOYCE) is, and, at all
relevant times mentioned herein, was a Real Property Agent for the County of San Diego, Department of General Services,
Real Estate Services Division, and was A COUNTY real property agent charged with acquiring the Property for
improvement and construction of the Valley Center Road Improvement Project.
4. PLAINTIFF is unaware of the true names and capacities of DEFENDANTS DOES 1 through 100, inclusive. PLAINTIFF
is informed and believes and thereon alleges that each fictitiously named DEFENDANT was in some way responsible for the
matters and things complained of herein. When the exact nature and identity of each fictitious DEFENDANTs responsibility
for matters and things herein alleged is ascertained by PLAINTIFF, PLAINTIFF will seek leave to amend this Complaint and
all proceedings herein to set forth the same.
5. Jurisdiction is proper in this Court pursuant to the United States Constitution, Article III, Section 2 and pursuant to 28
U.S.C. section 1331.
II. STATEMENT OF CASE
6. Walter E. Wallace and Erwin O. Jones, as tenants in common, own certain property in unincorporated San Diego County,
California, that is identified by a physical address of 27455 Valley Center Road, Valley Center, California (hereafter referred
to as the Property). The Property includes two parcels of land identified as Parcel Numbers 2000-089-A and 2000-089-B.
191
7. PLAINTIFF is owned and controlled by Erwin O. Jones and Walter E. Wallace, each of whom own fifty percent of
PLAINTIFFs stock. Erwin O. Jones is the President of PLAINTIFF and the paid manager of PLAINTIFFs retail business
on the Property. Walter E. Wallace is the Vice-President of PLAINTIFF.
8. PLAINTIFFs sole business is a retail lumber and hardware store that has a contractual relationship with ACE Hardware.
PLAINTIFF and/or its predecessors in interest has continuously been located on and fully occupying the Property as sole
tenant for over fifty years. PLAINTIFF currently occupies the Property as a hold-over tenant pursuant a one-year commercial
lease the original term of which was from February 1, 2001, to February 1, 2002. PLAINTIFF has every reasonable
expectation that it will continue to occupy the Property as a legal business tenant for the foreseeable future.
9. Until the actions by Defendants COUNTY, BOYCE, and Does 1 through 100, inclusive, that are the subject of this
Complaint, PLAINTIFF had on the Property a 2,892 square foot retail lumber and hardware store fronted on Valley Center
Road, a primary arterial road in the northern portion of San Diego County; a 1,107 square foot Managers Office and Shop;
two enclosed Product Storage Structure totaling 3,808 square feet; four Lumber Storage Structures covering 2,904 square
feet; open yard storage covering 30,029 square feet, approximately 16 parking spaces parallel to Valley Center Road that
accommodated the pick-up trucks of contractor customers; and perimeter concrete block and chain link fencing.
10. In 2004, COUNTY commenced action to take, by its power of eminent domain, 300 lineal feet of the Property for the
widening of Valley Center Road and for a roadway easement (4,180 square feet). On October 27, 2004, at a regularly
scheduled meeting of the San Diego County Board of Supervisors, the Board of Supervisors passed and adopted a Resolution
declaring that the public interests and necessity required the acquisition and taking of the interest in and of certain real
properties for the acquisition and construction of the COUNTYs Valley Center Road Improvement Project (Resolution of
Necessity). On November 16, 2004, COUNTY deposited $83,700 as supposed probable compensation for the COUNTYs
eminent domain action against the Property. On January 13, 2005 (approximately two months later), COUNTY, in the
furtherance of the Resolution of Necessity, filed a Complaint in Eminent Domain in San Diego County Superior Court, Case
Number GIN041748, against the Property (Complaint). COUNTYs Complaint named as defendants Walter E. Wallace;
Erwin O. Jones; Valley Center Municipal Water District; and Does 1 through 100, inclusive, but did not name PLAINTIFF as
a Defendant.
11. On January 19, 2005, COUNTY filed with the California Superior Court an Application for Order of Possession of the
Property identified in its Complaint. COUNTYs Memorandum of Points and Authorities in Support of Application for Order
of Possession was supported by the sworn Declaration of Defendant BOYCE. Paragraph 7 of the BOYCE declaration stated:
That Plaintiff requires the immediate possession and use of said Property in order to timely improve and construct the
Valley Center Road Improvement Project, and possession by Plaintiff will not displace or unreasonably affect any person in
actual or lawful possession of the [p]roperty (Declaration)(underlining added).
12. At no time did COUNTY deposit any monies for the anticipated damage or loss to Plaintiffs business and/or real
property interests.
13. On January 20, 2005, California Superior Court Judge Lisa Guy-Schall, in reliance on the BOYCE Declaration, signed
the Order For Possession of the Property with a Date of Possession To Be Taken of April 20, 2005.
14. On numerous occasions prior to January 19, 2005, Erwin O. Jones, as PLAINTIFFS President and manager of
PLAINTIFFs retail lumber and hardware business, advised various COUNTY agents, including Defendant BOYCE, that the
eminent domain action against the Property would have a significant, adverse impact on PLAINTIFFs business and would
require expenditures well in excess of one hundred thousand dollars to cure the damages to PLAINTIFFs leasehold property
interest and to PLAINTIFFS business that would result from COUNTYs condemnation action against the Property.
15. As a result of eminent domain actions by COUNTY, BOYCE, and Defendants Does 1 through 100, inclusive,
PLAINTIFF has had to reorient the store ninety degrees, replace parking, demolish certain storage structures, replace lost
lumber storage, and replace lost product storage at a cost that far exceeded the COUNTYs $83,700 deposit that the
COUNTY used to persuade the Court to order an immediate taking of the property.
192
16. In order to meet the unbudgeted expenses required to reorient the store, replace parking, demolish and storage structures,
PLAINTIFF for the first time in its corporate life was forced to take out loans and establish lines of credit in amounts that
now exceed $100,000.
17. The United States Constitution, Amendment 5, prohibits government from taking private property without just
compensation.
18. The United States Constitution, Amendment 14, prohibits state and local government action that deprives individuals of
property rights without due process.
19. The California Constitution, Article 1, section 19, prohibits the taking of private property without just compensation.
20. Under California law, leaseholders of property taken by eminent domain have a right to just compensation for severance
damages to the remainder property.
21. Under California law, owners of businesses on property subject to eminent domain actions are entitled to compensation
for damages to goodwill and can maintain inverse condemnation actions against the Government. (CHHOUR v. Community
Redev. Agency (1996) 46 Cal.App.4th 273.)
22. Defendant BOYCE and Defendants Does 1 through 100, inclusive, aided and assisted COUNTYs taking of the Property.
COUNTYs taking of the Property, damaged the value of the Wallace/Jones remainder property, required PLAINTIFF to
expend monies to mitigate the damage to the remainder of its Property, and damaged PLAINTIFFs long-standing leasehold
rights, and reduced the value of PLAINTIFFs business and business goodwill, in violation of the Fifth and Fourteenth
Amendments of the United States Constitution; and California Constitution Art. I, Section 19.
23. Actions by COUNTY, Defendant BOYCE, and Defendants Does 1 through 100, inclusive, have deprived PLAINTIFF of
property interests in a manner contrary to the California Constitution and without due process, in violation of the Fifth and
Fourteenth Amendments to the United States Constitution.
III.
FIRST CAUSE OF ACTION 42 U.S.C. 1983 AGAINST DEFENDANT BOYCE AND DOES 1 THROUGH 100
24. PLAINTIFF incorporates and realleges paragraphs 1 through 23 as though fully set forth herein.
25. At all times relevant to this Complaint, PLAINTIFF was in actual and lawful possession of the Property including its
business and business goodwill.
26. The Declaration by Defendant BOYCE that possession by Plaintiff will not displace or unreasonably affect any person
in actual or lawful possession of the [p]roperty was made under the color of authority in BOYCEs capacity as a COUNTY
real estate agent. The Declaration was false, was made by BOYCE with the knowledge that the declaration was false, and/or
was made in reckless disregard of the truth, and resulted in the taking of PLAINTIFFs property interests without just
compensation. Said taking was in violation of the United States Constitution, the California Constitution, and California law.
27. The actions by Defendants BOYCE and Does 1 through 100, inclusive, were a taking of PLAINTIFFs property interest
without just compensation and without due process. Said taking violated PLAINTIFFs civil rights under the Fifth and
Fourteenth Amendments of the United States Constitution.
IV.
193
SECOND CAUSE OF ACTION 42 U.S.C. 1983 (MONELL) AGAINST DEFENDANT COUNTY

28. PLAINTIFF incorporates and realleges paragraphs 1 through 27 as though fully set forth herein.
29. On information and belief, PLAINTIFF alleges that COUNTY in eminent domain proceedings involving private
properties for the Valley Center Road Improvement Project, and operating through its employees or agents, has a habit and/or
pattern of practice of depositing as just compensation pursuant to California Code of Civil Procedure sections 1255.010 1255.080 an amount significantly below the actual just compensation for the property being condemned. Making the deposit
provides the COUNTY with two significant advantages under California law. The deposit freezes the date of valuation and
allows the COUNTY to secure a Court order allowing COUNTY to take immediate possession. When the property owner
contests the eminent domain action, the COUNTYs practice is to, on the eve of trial and with the knowledge that
COUNTYs low-ball initial deposit will not be introduced as evidence at trial, increases its deposit to an arguably reasonable
measure of just compensation. Taking immediate possession in the absence of a deposit that bears a reasonable relationship
to the actual just compensation associated with the taking is a violation of the Fifth and Fourteenth Amendments of the
United States Constitution.
30. In addition thereto, PLAINTIFF is informed and believes and thereon alleges that COUNTY has a habit and/or practice
of not depositing any monies for loss of business goodwill and/or damage to businesses it seeks to acquire through
condemnation.
31. On information and belief, PLAINTIFF alleges that COUNTY, through its employees and agents, has adopted the
practices specified in the preceding paragraph as a means of gaining bargaining advantage over property and business owners
by putting them in a position of financial hardship and requiring them to incur legal and expert services in order to obtain the
just compensation to which they have a Constitutional entitlement.
31. In regards to the Property, COUNTY, on the eve of the scheduled trial date and after PLAINTIFF incurred construction,
legal and expert expenses, increased its initial deposit from $83,700 to $217,785, an increase of 260 percent.
WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS, and each of them, as follows on each cause of
action:
ON THE FIRST CAUSE OF ACTION

1. For damages in an amount to be determined at trial according to the proof;
2. For recoverable engineering, appraisal, attorney, and other fees according to proof;
3. For costs of suit incurred in this action;
4. For attorney fees pursuant to California Code of Civil Procedure section 1021.5; and 42 U.S.C. 1988;
5. For punitive damages;
6. For such other and further relief as the Court deems fit and proper.
ON THE SECOND CAUSE OF ACTION

1. For damages in an amount to be determined at trial according to the proof;
2. For costs of suit incurred in this action;
194
3. For attorney fees pursuant to 42 U.S.C. section 1988 and/or California Code of Civil Procedure section 1021.5;
4. For punitive damages in an amount sufficient to deter similar conduct by Defendants or similarly situated individuals.
5. For such other and further relief as the Court deems fit and proper.
Dated: Nov. 27, 2006
LAW OFFICES OF DON DETISCH
By: <<signature>>
DONALD W. DETISCH,
Attorney for Plaintiff Wallace Lumber and Hardware, Inc.
End of Document
195
Defendant Coats Enterprise Inc.s Answer to Plaintiffs Second

Amended Complaint
Martha UMMEL, an individual, and Vernon Ummel, an individual, Plaintiffs, v. LAST DANCE, INC.; Coats
Enterprise, Inc.; Michael Little, an individual: Re/Max Inc.; John Contento, SRO, a sole proprietor; and Does 1
through 50, Defendants. | Superior Court of California.
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2006 WL 5358968 (Cal.Superior) (Trial Pleading)

North County Division
San Diego County
Martha UMMEL, an individual, and Vernon Ummel, an individual, Plaintiffs,
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little, an individual: Re/Max Inc.; John Contento, SRO, a
sole proprietor; and Does 1 through 50, Defendants.
No. GIN 054088.
November 16, 2006.
Defendant Coats Enterprise Inc.s Answer to Plaintiffs Second Amended Complaint
Joseph L. Stine, Attorney at Law. CA Bar No. 86544, Law Office of Joseph L. Stine, 380 South Melrose Drive, #306, Vista,
CA 92081, (760) 643-4150 Fax: (760) 643-4160, Attorney for Defendant Coats Enterprise Inc.
Judge: Hon. Lisa Guy-Schall.
Action Filed: July 19, 2006
Dept.: 31
Defendant COATS ENTERPRISE, INC. answers Plaintiffs Second Amended Complaint as follows:
1. Pursuant to Code of Civ. Proc. 431.30(d), this answering Defendant generally and specifically denies each and every
allegation in Plaintiffs unverified Second Amended Complaint and further denies that Plaintiffs have been damaged in the
amount alleged or in any amount.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
2. The Second Amended Complaint, and each and every purported cause of action alleged therein, fails to state facts
sufficient to constitute a cause of action against this answering Defendant.
SECOND AFFIRMATIVE DEFENSE

3. The representations allegedly made by Defendant MICHAEL LITTLE, if they were made in fact as alleged in the Second
Amended Complaint, were not made in his capacity as an agent or representative of this answering Defendant and,
accordingly, can not be the basis for any liability as against this answering Defendant.
THIRD AFFIRMATIVE DEFENSE

4. Plaintiffs fail to adequately differentiate and distinguish between the alleged actions, representations, or omissions of
197
Defendant MICHAEL LITTLE as a real estate agent working for Defendant LAST DANCE INC. aka RE/MAX Associates
and his alleged actions, representations, and omissions as a mortgage loan agent working for this answering Defendant aka
Horizon Pacific Financial so as to permit this answering Defendant to determine each and every defense this it may have as
the Second Amended Complaint and otherwise respond to the pleading. Accordingly, this answering Defendant reserves its
right to assert additional defenses which it may discover or become relevant when Plaintiffs claims are further refined and
clarified in the course of this litigation.
FOURTH AFFIRMATIVE DEFENSE

5. Plaintiffs fail to allege facts sufficient to satisfy the conditions precedent to be entitled to a copy of the appraisal that is the
subject 15 their pleadings and, accordingly, this answering Defendant had no duty to provide Plaintiffs with such a copy and
can suffer no liability for any alleged delay in responding to Plaintiffs verbal requests for the document.
FIFTH AFFIRMATIVE DEFENSE

6. Cal Bus. & Prof. Code 11423(b) establishes the legal timetable for any obligation of this answering Defendant to supply
Plaintiffs with a copy of an appraisal report on request. Plaintiffs have failed to allege facts that, if proven, establish that this
answering Defendant had a duty to provide Plaintiffs with a copy of the subject appraisal on or before the alleged date in
which Plaintiffs consummated the purchase of the property at 1657 Amante Court, Carlsbad, California.
SIXTH AFFIRMATIVE DEFENSE

7. Plaintiffs, in agreeing to consummate the purchase of the property at 1657 Amante Court, Carlsbad, California, voluntarily
and independently assumed the risk of any alleged overpayment of the purchase price and, as such, can not impose liability
on this answering Defendant as a mortgage broker having no role in the negotiation of such price and providing no advice to
Plaintiffs in their decision to consummate the purchase at that price.
SEVENTH AFFIRMATIVE DEFENSE

8. Assuming arguendo the truth of allege d actions and omissions of Defendant MICHAEL LITTLE, such actions and
omissions were not expressly authorized or approved by this answering Defendant so as to make it vicariously liable as a
mortgage broker with no involvement in negotiating the purchase price or conducting an appraisal of the fair market value of
the property purchased at 1657 Amante Court, Carlsbad, California.
EIGHTH AFFIRMATIVE DEFENSE

9. The answering Defendant, as a mortgage broker, had no duty toward Plaintiffs in connection with the purchase price that
Plaintiffs agreed to pay for the property purchased at 1657 Amante Court, Carlsbad, California.
NINTH AFFIRMATIVE DEFENSE

10. Plaintiffs could not and did not reasonably rely on any alleged representations made by any agent of answering
Defendant, as a mortgage broker, in agreeing to pay the purchase price for the property purchased at 1657 Amante Court,
Carlsbad, California.
198
TENTH AFFIRMATIVE DEFENSE

11. This answering Defendant is informed and believes and thereon alleges that any and all events and happenings alleged in
the Seconded Amended Complaint and any damages suffered thereby were proximately caused by the independent,
intervening, negligent, and unlawful conduct of independent third parties and/or their agents so as to bar Plaintiffs from
recovering any damages as against it.
ELEVENTH AFFIRMATIVE DEFENSE

12. This answering Defendant is informed and believes and thereon alleges that any and all events and happenings alleged in
the Second Amended Complaint and any damages suffered thereby were proximately caused by the negligence or actions of
third parties, named or unnamed, such that it is entitled to an apportionment in liability among such parties according to their
responsibility for any and all damages if any have been suffered by Plaintiffs.
TWELFTH AFFIRMATIVE DEFENSE

This answering Defendant is unable to fully respond to Plaintiffs Second Amended Complaint because Plaintiffs fail to
attach a copy of their Exhibit A as referenced in Paragraph 27 of their pleading.
THIRTEENTH AFFIRMATIVE DEFENSE

This answering Defendants actions and omissions, as alleged, were not the actual or proximate cause of any of damages
alleged by Plaintiffs.
FOURTEENTH AFFIRMATIVE DEFENSE

This answering Defendant is informed and believes and thereon alleges that Plaintiffs, and each of them, failed to exercise
reasonable efforts to avoid the alleged overpayment in the purchase of the property at 1657 Amante Court, Carlsbad,
California, and that such failure was the actual and proximate cause of the damages alleged in the Second Amended
Complaint so as to bar any recovery by Plaintiffs.
FIFTEENTH AFFIRMATIVE DEFENSE

Any loss, injury, or damages suffered by Plaintiffs were the direct and proximate result of the negligence, fraud, or other
tortious acts or omissions of Plaintiffs, and each of them, or their agents and representatives other than this answering
Defendant and the total amount of damages to which Plaintiffs are otherwise entitled should be reduced in direct proportion
to such tortious acts or omissions.
SIXTEENTH AFFIRMATIVE DEFENSE

This answering Defendant is informed and believes and thereon alleges that Plaintiffs, and each of them, inexcusably and
unreasonably delayed the commencement of this action to its prejudice so as to preclude any recovery by Plaintiffs pursuant
to the doctrine of laches.
199
SEVENTEENTH AFFIRMATIVE DEFENSE

This answering Defendant is informed and believes and thereon alleges that Plaintiffs authorized and ratified its acts and
conduct by consummating the purchase of the property at 1657 Amante Court, Carlsbad, California at a purchase price
deemed acceptable to them.
EIGHTEENTH AFFIRMATIVE DEFENSE

Plaintiffs, and each of them, as buyers of residential real estate, breached their duty under Civil Code 2079.5 to exercise
reasonable care to protect themselves against payment of an alleged excessive price for the property at 1657 Amante Court,
Carlsbad, California, and such breach is the proximate cause of any loss, injury, or damages suffered by Plaintiffs.
WHEREFORE, this answering Defendant prays judgment as follows:
1. That Plaintiffs take nothing by virtue of their Second Amended Complaint as against this answering Defendant.
2. That Plaintiffs action be dismissed with prejudice as against this answering Defendant.
3. That any liability adjudged by this Court as against this answering Defendant be limited in proportion to the degree of fault
attributable to it.
3. That this answering Defendant be awarded costs of suit and attorney fees reasonably incurred in the defense of Plaintiffs
action.
4. For such other and further relief as the Court may deem just and proper.
Dated: 11-16-06
LAW OFFICE OF JOSEPH L. STINE
<<signature>>
By Joseph L. Stine
Attorney for Defendant COATS ENTERPRISE INC.
End of Document
200
Answer (General Denial) of Defendants Last Dance, Inc. dba Re/Max

Associates and Michael Little to Plaintiffs Second Amended
Complaint
Enterprise, Inc.; Michael Little, an individual; Re/Max, Inc.; John Contento, SRO, a sole proprietor; and Does 1
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San Diego County
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little, an individual; Re/Max, Inc.; John Contento, SRO, a
No. GIN054088.
November 13, 2006.
Answer (General Denial) of Defendants Last Dance, Inc. dba Re/Max Associates and Michael Little to Plaintiffs
Second Amended Complaint
Jacqueline A. Oliver, Esq. (SBN 201656), Jodi A. Konorti, Esq. (SBN 238734), Re/Max Associates, 5005 Texas Street, Suite
400, San Diego, CA 92108, Tel: (619) 542-2490, Fax:(619) 299-0468, Attorneys for Defendants Last Dance, Inc. dba
Re/Max Associates (erroneously sued and served as Last Dance, Inc. and Re/Max, Inc.) and Michael Little.
Dept. No.: 31
Defendant LAST DANCE, Inc., dba RE/MAX Associates (erroneously sued and served as Last Dance, Inc. and RE/MAX,
Inc.), and MICHAEL LITTLE, (collectively referred to as RE/MAX), for themselves and no other party, answer the
unverified Second Amended Complaint (Complaint) of plaintiffs MARTHA AND VERNON UMMEL (UMMELS) as
follows:
GENERAL DENIAL
1. Pursuant to section 431.30(d) of the Code of Civil Procedure, RE/MAX generally denies each and every allegation
contained in the Complaint, and the whole thereof. RE/MAX further denies that Plaintiff has been damaged in the amounts
alleged or in any other amount or amounts, or in any form, or at all, and further deny that Plaintiff is entitled to any relief
against RE/MAX and specifically denies that Plaintiff is entitled to any damages in any sum or sums whatsoever or at all.
(Failure To State A Cause of Action)
2. Plaintiffs Complaint, and each and every cause of action set forth therein, fails to state facts sufficient to constitute a cause
or causes of action against RE/MAX.
202

(Failure To Mitigate)
3. These answering Defendants are informed and believe and thereon allege that Plaintiff has failed to exercise reasonable
efforts and/or expense to avoid the consequences of any and all damages alleged in the Complaint, and that Plaintiff should
be barred from recovery on the Complaint.

(Comparative Negligence)
4. If Plaintiff has suffered or sustained any loss, damage, or injury, such alleged damages were the direct and proximate result
of the negligent, fraudulent, careless, reckless, fault and unlawful conduct of the Plaintiff and/or his employees, agents and
other persons whose conduct is chargeable to Plaintiff, other than these answering Defendants, If Plaintiff suffered or
sustained any loss, damage, or injury, the total amount of damages to which Plaintiff would otherwise be entitled is reduced
in direct proportion to the amount of negligence and/or fault attributable to Plaintiff.

(Negligence of Third Persons)
5. These answering Defendants are informed and believe and thereon allege that Plaintiffs alleged damages were either in
whole or in part negligently caused by persons, firms, corporations, or entities other than these answering Defendants, and
that said negligence is either imputed to Plaintiff by reason of the relationship of said parties to Plaintiff and/or said
negligence comparatively reduced the percentage of alleged negligence of these answering Defendants.

(Comparative Fault of Co-Defendants)
6. At all times and places set forth in the Complaint, party defendants, other than these answering Defendants, failed to
exercise ordinary care on their own behalf, which negligence and carelessness was a substantial factor of some portion, up to
and including the whole thereof, of the injuries and damages complaint of by Plaintiff in this action. The fault, if any, of these
answering Defendants should be compared with the fault of the other defendants and damages, if any, should be apportioned
among the defendants in direct relation to each defendants comparative fault. These answering Defendants should be
obligated to pay only such damages, if any, which are directly attributable to their percentage of the comparative fault. To
require these answering Defendants to pay any more than his percentage of the comparative fault violations the equal
protection and due process clauses of the Constitution of the United States and the Constitution of the State of California.

(Contribution)
203
7. The damages suffered by Plaintiff, if any, were the direct and proximate result of the negligence of parties, persons,
corporations and/or entities other than these answering Defendants, and the liability of these answering Defendants, if any, is
limited in direct proportion to the percentage of fault actually attributable to these answering Defendants.

(No Actual or Proximate Causation)
8. These answering Defendants were not the actual or proximate cause of any of Plaintiffs alleged damages.

(Assumption of the Risk)
9. These answering Defendants are informed and believe and thereon allege that Plaintiff had full knowledge of all facts
alleged in his Complaint and knowingly and voluntarily assumed all risks involved in the subject transactions, and his
assumption of these risks is the sole and proximate cause of any injuries or damages he allegedly suffered.

(Estoppel)
10. These answering Defendants are informed and believe and thereon allege that Plaintiff engaged in conduct and activities
with respect to the contracts, transactions, occurrences and incidents which are the subject of the Complaint, and by reason of
said activities and conduct are estopped from asserting any claims for damages or seeking any other relief against these
answering Defendants.

(Waiver)
11. These answering Defendants are informed and believe and thereon allege that Plaintiff engaged in conduct and activities
sufficient to constitute a waiver of any alleged breach of duty, negligence, act, omission, or any other conduct, if any, as set
forth in the Complaint.

(Intervening Causes)
12. These answering Defendants are informed and believe and thereon allege that the alleged damages Plaintiff claims, were
proximately caused by or contributed to by the acts of Plaintiff, or other parties, and constitutes an intervening and
superseding cause of the damages, if any, of which Plaintiff complains, thus barring Plaintiff from any recovery from these
answering Defendants.
204

(Laches)
13. These answering Defendants are informed and believe and thereon allege that Plaintiff has inexcusably and unreasonably
delayed the commencement of the action to the prejudice of these answering Defendants.

(Authorization/Ratification)
14. These answering Defendants are informed and believe and thereon allege that Plaintiff authorized and/or ratified the acts
and conduct of these answering Defendants.

(Unclean Hands)
15. These answering Defendants are informed and believe and thereon allege that Plaintiffs conduct with regard to the
matters alleged in the Complaint were such that Plaintiff is barred by the equitable doctrine of unclean hands from recovery
against these answering Defendants.

(Statute of Limitations)
16. These answering Defendants are informed and believe and thereon allege that Plaintiffs Complaint is wholly and/or
partially barred by the applicable statutes of limitations, including, but not limited to Code of Civil Procedure sections 337,
338, 339, and 343.

(No Breach of Duty)
17. These answering Defendants are informed and believe and thereon allege that Plaintiff is barred from any recovery or
relief because these answering Defendants breached no duties to Plaintiff.
205
(Costs)
18. The Complaint filed by Plaintiff against these answering Defendants was brought without reasonable cause and without a
good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the
Complaint against these answering Defendants. Plaintiff should therefore be responsible for all of these answering
Defendants necessary and reasonable defense costs, as more particularity set forth in California Code of Civil Procedure
section 1038.

(Conduct was Justified)
19. The conduct of these answering Defendants in regard to the matters alleged in the Complaint was justified, and by reason
of the foregoing, Plaintiff is barred from any recovery against these answering Defendants.
NINETEENTH AFFIRMATIVE DEFENSE

(Complete Performance)
20. These answering Defendants have appropriately, completely, and fully performed and discharged any and all obligations
and legal duties arising out of the matters alleged in the Complaint.
TWENTIETH AFFIRMATIVE DEFENSE

(Innocent Misrepresentation)
21. If these answering Defendants made any misrepresentations, which are expressly denied, such misrepresentations were
not intentional or negligent, but were innocently made.
TWENTY-FIRST AFFIRMATIVE DEFENSE

(Arbitration)
22. These answering Defendants hereby reserve the right to demand that Plaintiff submits to mediation and/or binding
arbitration of all matters raised in Plaintiffs Complaint.
TWENTY-SECOND AFFIRMATIVE DEFENSE

(Expression of Good Faith Opinion)
23. Any and all representations made by these answering Defendants, if there were any, were true and/or were expressions of
opinion which were made in good faith and reasonably believed to be true and were based upon information that these
answering Defendants reasonably believed to be true and reliable. As a result, Plaintiff cannot recover from these answering
206
Defendants.
TWENTY-THIRD AFFIRMATIVE DEFENSE

(Lack of Enforceability of Contract)
24. These answering Defendants are informed and believe, and thereon assert, that Plaintiff cannot enforce any contract, if
any such contract even exists, against Defendants on the ground of failure of consideration, excuse, material breach by
Plaintiff, failure of condition concurrent, precedent and/or subsequent, mistake, lack of consent, or statute of frauds.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Absence of Intent to Defraud)
25. These answering Defendants allege that Plaintiffs allegations that the answering Defendant misled Plaintiff never
occurred; but, if so, such information was not made with the intent to defraud or to deceive the Plaintiff.
TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Absence of Intent to Induce Reliance)
26. These answering Defendants allege that Plaintiffs allegations that these answering Defendants misled Plaintiff never
occurred; but if so, such information was not made with the intent to induce reliance by the Plaintiffs as alleged in his
Complaint.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

(Absence of Actual and/or Justifiable Reliance)
27. These answering Defendants allege that Plaintiffs allegations that these answering Defendants misled Plaintiff never
occurred; but, if so Plaintiff did not actually or justifiably rely, nor was Plaintiff entitled to rely on the allegedly concealed
information, whether subjectively or objectively.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(Non-Awareness of Suppressed Fact)
28. These answering Defendants did not know and in the exercise of reasonable care could not have known of the alleged
facts which Plaintiff now contends were suppressed from his during the subject transaction.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

207
(Civil Code 1102.4 Non-Liability for Errors or Omissions Not Within Personal Knowledge of Transferor or Agent)
29. These answering Defendants are not liable for any alleged error, inaccuracy, or omission of any information delivered
pursuant to Title IV, Chapter 2, Article 1.5 of the Civil Code, because said alleged error, inaccuracy, or omission was not
within the personal knowledge of these answering Defendants and was based on information timely provided by public
agencies and/or by other persons providing information as specified in Civil Code section 1102.4(c), and ordinary care was
exercised in obtaining and transmitting it.
TWENTY-NINTH AFFIRMATIVE DEFENSE

(Civil Code 2079.5 Buyers Duty to Exercise Reasonable Care)
30. These answering Defendants are not liable for the Plaintiffs failure to exercise reasonable care to protect itself. California
Civil Code section 2079.5 provides that nothing relieves a buyer or prospective purchaser of the duty to exercise reasonable
care to protect himself or herself, including those facts which are known to or within the diligent attention and observation of
the buyer or prospective buyer.
THIRTIETH AFFIRMATIVE DEFENSE

(Not Responsible for Acts of Doe Defendants)
31. These answering Defendants are not legally responsible for the acts and omissions of those Defendants named herein as
Does 1 through 30.
THIRTY-FIRST AFFIRMATIVE DEFENSE

(Prevention)
32. Upon information and belief, the acts of Plaintiff and/or other parties prevented and precluded these answering
Defendants from performing their obligations, if any were unperformed at all.
THIRTY-SECOND AFFIRMATIVE DEFENSE

(Consent)
33. At all times mentioned in the Complaint, Plaintiff consented to each and every act of these answering Defendants and as a
result suffered no wrong from any act performed.
THIRTY-THIRD AFFIRMATIVE DEFENSE

(Unconstitutionality of Exemplary Damages)
34. Any claims for punitive and/or exemplary damages are unconstitutional in that they violate the Fourteenth Amendment of
208
the United States Constitution guaranteeing due process of aw, the Eighth Amendment of the United States Constitution
prohibiting excessive fines, and Article I, Section 17 of the California Constitution.
THIRTY-FOURTH AFFIRMATIVE DEFENSE

(Reservation of Defenses)
35. These answering Defendants hereby reserve the right to assert any additional defenses as may be applicable to this action
as may be warranted after discovery commences.
THIRTY-FIFTH AFFIRMATIVE DEFENSE

(Knowledge and Waiver of Property Condition)
36. These answering Defendants are informed and believe, and based thereon allege, that Plaintiffs investigated the condition
and value of the subject property before they purchased it and through such investigation, discovered, or should have
discovered, its true value and condition. Notwithstanding such inspection/investigation, Plaintiffs purchased the property. As
a result of such knowledge, Plaintiffs waived the alleged failures to disclose and misrepresentation allegedly attributable to
these answering Defendants.
THIRTY-SIXTH AFFIRMATIVE DEFENSE

(No False Statement)
37. As to each and every cause of action alleged in Plaintiffs Complain, these answering Defendants made no false
statements to Plaintiff or any other person, entity or organization.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE

(Absence of False Statement as to Premises)
38. Any and all alleged representations made by these answering Defendants, or their agents, regarding the subject premises
and purchase agreement, which is the subject of this litigation, contained no false statements.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE

(No Basis for Punitive Damages)
39. These answering Defendants at all times acted in a proper, lawful and legally permitted fashion without malice, fraud or
oppression, and, therefore, there is no a basis upon which an award of punitive or exemplary damages can be made against
these answering Defendants.
WHEREFORE, RE/MAX prays for judgment as follows:
209
1. That Plaintiffs take nothing by way of their Complaint;

2. That the Complaint be dismissed with prejudice as to the answering Defendants;
3. That the sole liability of these answering Defendants, if any, be limited in proportion to the degree of fault attributable to
these answering Defendants;
4. For attorneys fees and costs of suit incurred herein; and
5. For such other and further relief as the Court deems just and proper.
DATED: November 9, 2006
<<signature>>
By: Jacqueline A. Oliver, Esq.
Attorney for Defendants Last Dance, Inc., dba RE/MAX Associates and Michael Little.
End of Document
210
Defendant John Contentos Answer to Plaintiffs Second Amended

Complaint
Martha UMMEL, individually; and Vernon Ummel, individually, Plaintiffs, v. LAST DANCE, INC.; Coats
Enterprise, Inc.; Michael Little; individually; John Contento, SRO, a sole proprietor; Does 1 through 50, Defendants. |
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Martha UMMEL, individually; and Vernon Ummel,..., 2006 WL 5358967...

San Diego County
Martha UMMEL, individually; and Vernon Ummel, individually, Plaintiffs,
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little; individually; John Contento, SRO, a sole proprietor;
Does 1 through 50, Defendants.
No. GIN 054 088.
November 9, 2006.
Defendant John Contentos Answer to Plaintiffs Second Amended Complaint
Robert T. Dolan (State Bar No. 110494), Lindsay MC Menamin (State Bar No. 210269), Gaglione & Dolan, 20750 Ventura
Boulevard, Suite 238, Woodland Hills, California 91364, Telephone: (818) 704-1464, Facsimile: (818) 704-1564, Attorneys
for Defendant, John Contento.
Assigned to The Honorable Lisa Guy-Schall, Department 31.
Complaint Filed: July 19, 2005
1st Am. Complaint: August 18, 2006
COMES NOW defendant John Contento (hereinafter defendant) and answering the second amended complaint
(complaint) of Matha Ummel and Vernon Ummel (hereinafter plaintiffs) alleges as follows:
1. Pursuant to Code of Civil Procedure (CCP) 431.30, this answering defendant generally and specifically denies each
and every allegation and each and every part of each and every allegation contained in the complaint and the whole thereof
and further denies that the plaintiffs have been damaged in the sum or sums alleged or in any other sum or sums at all.
2. This answering defendant is informed and believes and upon such information and belief alleges that the allegations of the
complaint herein, whether considered independently or as a whole, fail to state facts sufficient to constitute a cause of action
against this answering defendant.

3. This answering defendant is informed and believes and upon such information and belief alleges that at all times herein,
this answering defendant exercised and possessed that degree of skill and knowledge reasonably expected of a real estate
appraiser.
212

4. This answering defendant believes and based upon such information and belief alleges that plaintiffs waived their right to
seek the relief herein, due to their own acts and/or omissions with reference to the subject matter of the complaint.

5. This answering defendant believes and based upon such information and belief alleges that plaintiffs are estopped from
seeking the relief herein due to their own acts, and/or omissions with reference to the subject matter of the complaint.

6. This answering defendant is informed and believes and upon such information and belief alleges that at all times herein,
plaintiffs are negligent with respect to the facts and circumstances as alleged in the complaint herein. Plaintiffs failed to
exercise reasonable care in protecting their interests during the period alleged in the complaint and the loss and damages
purportedly sustained by the plaintiffs were proximately caused by their contributory negligence. Any damages suffered by
the plaintiffs, which are specifically denied to exist, must be, therefore, reduced in proportion to the amount of negligence
attributable to the plaintiffs.

7. This answering defendant is informed and believes and upon such information and belief alleges that any and all events
and happenings in connection with the matters alleged in the complaint, and the resulting injuries and damages, if any,
purportedly suffered by the plaintiffs, were proximately caused and contributed to by the independent, intervening, negligent
and unlawful conduct of independent third parties and/or their agents which, therefore, bars plaintiffs from recovering the
relief sought within the complaint.

8. This answering defendant is informed and believes and based upon such information and belief alleges that any and all
events and happenings in connection with the allegations set forth in plaintiffs complaint and the alleged resulting injuries or
damages, if any, were proximately caused and contributed to by the negligence or actions of third parties either named or
unnamed and that this answering defendant is entitled to an apportionment among all such parties according to their
responsibility for the alleged injuries, if any, sustained by plaintiffs.

9. This answering defendant is informed and believes and upon such information and belief alleges that the causes of action
in the plaintiffs complaint are barred by the applicable statute of limitations including, but not limited to, California CCP
337, 338, 339 and 340.

10. Any and all representations made by this answering defendant, his employees, or agents, regarding the subject of this
litigation contained no false statements.
213

11. At all times herein, this answering defendant alleges that each and every act done or statement made by said answering
defendant, his employees, or agents, with reference to some or all of the purported claims as set forth in the complaint herein,
were made reasonably and in good faith and without any knowledge that the statements might be false or inaccurate.

12. Any and all alleged false representations made by this answering defendant, his employees, or agents regarding the
subject of this litigation were not stated with the intent to induce plaintiffs to rely to their detriment on those representations.

13. At all times herein, this answering defendant alleges that plaintiffs alleged reliance on the statements and representations
allegedly made by this answering defendant, his employees, or agents, was not justified.

14. This answering defendant alleges that plaintiffs have not suffered or sustained any damages as a consequence of any
alleged representation of this answering defendant or any alleged reliance by plaintiffs.

15. This answering defendant alleges that plaintiffs have failed to take reasonable and necessary steps to mitigate their
damages.

16. This answering defendant alleges that plaintiffs are barred from any recovery against this answering defendant because
their damages are speculative.

17. This answering defendant alleges that he did not owe plaintiffs a duty for preparation of the appraisal of the property
located at 1668 Amante Court, Carlsbad, California (the property) since plaintiffs did not contract for, or engage, this
answering defendants services to prepare the appraisal.

18. This answering defendant did not enter into any written contract with plaintiffs to appraise the property in which plaintiffs
agreed to purchase.
214

19. This answering defendant did not enter into any written contract with the other defendants in which defendants agreed to
sell plaintiffs the subject property.

20. This answering defendant did not fraudulently provide information in the appraisal report on the property to plaintiffs.

21. This answering defendant alleges that at all times relevant herein, this answering defendant did not cooperate with, aid,
encourage, ratify or adopt any allegedly wrongful acts as set forth in the within complaint.

22. This answering defendant is informed and believes and, upon that basis, alleges that plaintiffs do not describe the claims
made against defendant with sufficient particularity to enable defendant to determine each and every defense he may have
against plaintiffs. Defendant therefore reserves the right to assert all defenses, including affirmative defenses, which may be
discovered or become relevant to plaintiffs claims once the precise nature of those claims is ascertained.
WHEREFORE, this answering defendant prays judgment as follows:
1. That plaintiffs take nothing by virtue of their complaint on file herein from this answering defendant;
2. That plaintiffs complaint on file herein be dismissed with prejudice as to this answering defendant;
3. That this answering defendant be awarded his costs of suit and attorneys fees reasonably incurred in the defense of
plaintiffs action; and
4. For such other and further relief as the court may deem just and proper.
DATED: November 6, 2006
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN
Attorneys for Defendant
JOHN CONTENTO
End of Document
215
216
Reply Brief of Defendants Re/Max and Little to Plaintiffs

Opposition Defendants Demurrer
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San Diego County
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No. GIN054088.
October 16, 2006.
Reply Brief of Defendants Re/Max and Little to Plaintiffs Opposition Defendants Demurrer
400, San Diego, CA 92108, Tel: (619) 542-2490, Fax: (619) 299-0468, Attorneys for Defendants Last Dance, Inc. dba
Dept. No.: 31
Hearing Date: October 20, 2006
Time: 1:30 p.m.
Defendants LAST DANCE, INC. dba RE/MAX ASSOCIATES (hereinafter RE/MAX) (erroneously sued and served as
LAST DANCE, INC. and RE/MAX, INC.) and MICHAEL LITTLE (hereinafter Little), hereby submit the following reply
brief to Plaintiffs Opposition to Defendants Demurrer to Plaintiffs First Amended Complaint (Complaint).
I. RE/MAX AND LITTLES DEMURRER IS PROPERLY BEFORE THE COURT AND IN THE INTERESTS OF
JUSTICE MUST BE HEARD.
In Berg v. Darden, plaintiffs counsel sent a Section 998 letter to Defendants counsel via facsimile. Post-trial, Defendants
counsel argued service of the statutory offer of compromise via facsimile was defective. The trial court agreed, but the Court
of Appeal abruptly reversed holding service of the statutory offer of compromise was not fatally defective primarily because
there was no dispute defendants counsel actually received and read the letter and understood it to be a Section 998 letter.
((2004) 120 Cal.App.4th 721, 732.)
Similarly here, Plaintiffs counsel evidently received and read RE/MAX and Littles Demurrer, as evidenced by the filing and
service of their Opposition to the Demurrer. Thus, Plaintiffs clearly understood the documents to be a Demurrer. A party
cannot legitimately oppose or intelligently respond directly to a paper, and the arguments and case law within that paper, if
that party has not received, read, and understood that document.
On September 15, 2006, the Demurrer was faxed with a confidential facsimile cover sheet to Susan, a dispatch officer at
Knox Attorney Service. Although the documents were intended to be sent to Susan at Knox Attorney Service (Knox) for
proper personal service on Plaintiffs counsel, the documents were inadvertently directly faxed to Plaintiffs counsels
218
facsimile number used at its regular place of business since the start of this litigation. (See Berg v. Darden, supra, 120
Cal.App.4th at 733.) The confidential facsimile cover sheet clearly states,
Please serve the attached Demurrer & Motion to Strike and Notice of Lodgment today on:
William M. Aron, Esq.
Jeffrey L. Hogue, Esq.
Aron & Hogue
525 B Street, Suite 1500
San Diego, CA 92101.
Please file the proof of service with the SD Superior Court, North County (Vista). (See Declaration of Jodi A. Konorti).
At Plaintiffs counsels first reading of this confidential facsimile cover sheet, they should have immediately noticed it was
not intended for them, but instead intended for Susan to serve on them. On October 13, 2006, William Aron confirmed his
office does not have a Susan working in his office. (See Declaration of Jodi A. Konorti). On the facsimile cover sheet, it
clearly states, if the reader of this message is not the intended recipient ... if you have received this communication in error,
please notify us immediately by telephone.... (emphasis added). The direct telephone number for the sender is printed at the
top of the cover sheet. RE/MAX and Little never received a telephone call from Plaintiffs counsel informing of the
misdirected facsimile on that day or any day thereafter. (See Declaration of Jodi A. Konorti.) The only communication
RE/MAX and Little received was an email on September 25, 2006 asking for a copy of the Proof of Service. (See Decl. Of
Jodi A. Konorti.) At this point, RE/MAX and Little honestly believed the facsimile was properly sent to the delivery service
to be served on Plaintiffs by the delivery service; there was no reason to believe otherwise as they did not hear from
Plaintiffs counsel or the delivery service. RE/MAX and Littles counsel, Jodi A. Konorti, continuously called Susan at Knox
regarding the status of the proof of service. To date, RE/MAX has not received one in the mail from Knox, and until the
drafting of this Demurrer thought Knox served the documents on Plaintiffs counsel.
Promptly upon receiving Plaintiffs request for a copy of the Proof of Service (POS), RE/MAX and Little responded, in
writing, they would forward the POS immediately upon receipt of a copy from the delivery service because RE/MAX and
Little still though Knox served the documents. Although on numerous occasions RE/MAX and Little requested the delivery
service to immediately send the POS, RE/MAX and Little have yet to receive it. To date, RE/MAX and Little have asked at
least three times and have left at least two additional messages demanding the POS. The delivery service has never confirmed
either way whether they received the documents or served the documents. On Monday, October 9, 2006, RE/MAX and Little
spoke with the delivery service; she confirmed she would send it over the POS. At the time of filing this Reply Brief,
RE/MAX and Little have still not received the POS from the delivery service.
RE/MAX and Little intended to fax the Demurrer to Susan at Knox Attorney Service for personal service on Plaintiffs
counsel. Rather, the Demurrer went straight to Plaintiffs counsels office via facsimile in clear error since their office does
not have a Susan and it requested Susan to serve and file the Demurrer and POS. RE/MAX and Little had no reason to
believe the Demurrer was not sent to Knox because Plaintiffs* counsel failed to notify RE/MAX of the error. Plaintiffs
subsequently served their Opposition to the Demurrer, evidencing that they received, read, and understood the paper to be a
Demurrer. Thus, under the case law and because Plaintiffs failed to inform RE/MAX and Little of the transmission error,
RE/MAX and Little respectfully request the Court hear and consider RE/MAX and Littles Demurrer and sustain the same.
II. PLAINTIFFS FAIL TO PROPERLY PLEAD FRAUD AND FRAUDULENT CONCEALMENT; THEREFORE
DEFENDANTS DEMURRER MUST BE SUSTAINED WITHOUT LEAVE TO AMEND.
Plaintiffs Opposition states Plaintiffs plead the elements of reliance and damages for the first and second causes of action for
fraud and fraudulent concealment, respectively. Assuming arguendo Plaintiffs did plead the elements of reliance and damage
219
for fraud and fraudulent concealment, contrary to the law, Plaintiffs have not plead with these elements with particularity. As
previously stated, every element of the cause of action for fraud must be alleged in full, factually, and specifically. The
particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means
the representations where tendered. (Lazar v. Sup. Ct., supra, 12 Cal.4th at 645; Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.) Plaintiffs state in their Opposition a court should not look suspiciously at the complaint or seek to
absolve the defendant from liability on the highly technical requirements of form in pleadings. (See Plaintiffs Opposition to
Demurrer, p.6, Ins. 8-10.) Given the specificity requirements, the technicality argument proffered by Plaintiffs is insignificant
to the extent they alleged fraudulent causes of action against Demurring Defendants. Non-particular, non-specific fraud and
fraudulent concealment causes of action must be dismissed to protect the character of the defendant.
Plaintiffs restate in their Opposition the non-specific, non-particularized allegations for the elements of fraud. However, they
fail to plead the specifics for their allegations admittedly because Complaints must be kept to a reasonable length. (See
Plaintiffs Opposition to Demurrer, p.6, ln. 13.) However, the law is clear that allegations of fraud involve a serious attack
on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order
to prepare his defense. (Stansfield, supra, 220 Cal.App.3d at 73, citing Committee on Childrens Television, Inc. v.
General Foods Corp., supra, 35 Cal.3d at 216 (emphasis added).)
Plaintiffs complaint is internally inconsistent because they allege they relied on the appraisal to arrive at their purchase price.
However, they inconsistently allege they didnt receive the appraisal until after the close of escrow. Thus, where Plaintiffs are
unspecific in how they relied on alleged representations the Little opined $1,200,000 was a good deal for the property when
they had not even seen the appraisal does not satisfy the specificity requirements of fraud.
It is insufficient for Plaintiffs to simply plead the evidence they hope to prove at trial. (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) Legal conclusions alone will not support a cause of action for
fraud. Plaintiffs clearly do not plead facts specifying how, when, where, to whom and by what means the allegedly fraudulent
statements were made because, as they admit in the Opposition, Complaints must be kept to a reasonable length. Because
of the serious nature of fraud allegations, the particularity requirement trumps a fear of a long, specific complaint. Therefore,
Plaintiffs failed to show a prima facie basis for fraud causes of action and Defendants Demurrer must be sustained without
leave to amend.
III. PLAINTIFFS FAIL TO PROPERLY PLEAD NEGLIGENT MISREPRESENTATION; THEREFORE.

DEFENDANTS DEMURRER MUST BE SUSTAINED WITHOUT LEAVE TO AMEND.
There is no liability for an innocent misrepresentation where the agent acted reasonably and had reasonable grounds to
believe what he said was true. (Robinson v. Grossman (1997) 57 Cal.App.4th 634, 642-43.) Under Padgett v. Phariss,
((1997) 54 Cal. App. 4th 1270, 1284) when an agent communicates what the fair market value of the property is he provides
his opinion, such opinions are just that: opinions, not representations of fact, and are not actionable misrepresentations. (See
also Kahn v. Lischner (1954) 128 Cal. App. 2d 480,487 (emphasis added).) In Wilhelm v. Pray, Price, Williams & Russell,
the court concluded such an omission was fatally defective to a claim of negligent misrepresentation. ((1986) 186 Cal.App.3d
1324, 1332-1333 (sustaining a demurrer without leave to amend as to an action for negligent misrepresentation when the
complaint did not allege that false representations were made honestly believing they were true, but having no reasonable
ground for such belief, and when the misrepresentations were not the proximate cause of any harm).)
Therefore, under Padgett and Wilhelm, the statement by Little that Plaintiffs were getting a good deal on the house is clearly
his opinion and is not actionable. Plaintiffs admit it was only his opinion because they allege he merely believed the price
was a good deal. Thus, Plaintiffs Complaint omits an essential element of a cause of action for negligent misrepresentation
and the demurrer must sustained without leave to amend.
IV. PLAINTIFFS FAIL TO PROPERLY PLEAD BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING. NEGLIGENCE, AND BREACH OF FIDUCIARY DUTY; THEREFORE. DEFENDANTS DEMURRER
MUST BE SUSTAINED.
220
Plaintiffs Complaint fails to plead facts sufficient to state a cause of action for the Third, Fourth, and Sixth causes of action
because it is insufficient for Plaintiffs to simply plead the evidence they hope to prove at trial. (Careau & Co. v. Security
Pacific Business Credit, Inc., supra, 222 Cal.App.3d at 1390.) Plaintiffs entirely fail to plead damages, a crucial and essential
element of the above causes of actions. As stated previously, Plaintiffs plead they relied on the appraisal report for their
purchase price, but inconsistently allege Little did not provide the report until after the close of escrow. Furthermore,
Plaintiffs have failed to plead any damages because they paid exactly what the property was appraised -- $1,200,000.00. (See
Exhibit A attached to Demurrer.) Where the face of the Complaint clearly shows there are no damages because Plaintiffs
paid the appraised value, Plaintiffs have failed to show damages and, therefore, fail to state facts sufficient to support the
Third, Fourth, and Seventh causes of action.
V. PLAINTIFFS SIXTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO SUPPORT A

CONSTRUCTIVE FRAUD CAUSE OF ACTION.
Plaintiffs plead constructive trust. Plaintiffs cannot allege facts sufficient to constitute a cause of action for constructive trust.
Therefore, the sixth cause of action must be dismissed with prejudice. Assuming the court allows Plaintiffs leave to amend
the sixth cause of action to allege constructive fraud, Plaintiffs will not and cannot legitimately allege facts supporting such
cause of action. To establish constructive fraud one must prove the following: 1) a fiduciary relationship; 2) a material
non-disclosure; 3) an intent to deceive; 4) reliance and 5) resulting injury. (Younan v. Equifax, Inc. (1980) 111 Cal.App.3d
498, 516.) As stated in section IV, supra, Plaintiffs cannot show damages, an essential element of constructive fraud. Nor can
Plaintiffs show a material non-disclosure because as previously stated, an opinion on the price of real property is just that, an
opinion, and is not tantamount to a material non-disclosure. Additionally, Plaintiffs plead reliance for the basis of the
purchase price on the appraisal by John Contento of $1.2 million - an appraisal they allege they did not receive until after the
close of escrow.
Thus, Plaintiffs cannot legitimately plead facts supporting a cause of action for constructive fraud and should not be allowed
leave to amend their First Amended Complaint,
CONCLUSION
The burden of proving a reasonable possibility of amending the complaint to state a cause of action is squarely on the
plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The First and Second causes of action are not plead fully,
specifically and particularly and must be dismissed. Under Wilhelm, Plaintiffs made a fatal error wherein Littles opinion is
not actionable negligent misrepresentation, and the negligent misrepresentation cause of action must be dismissed. Finally,
where Plaintiffs cannot plead or show damages because they paid the appraised price, the Third, Fourth, and Sixth causes of
action must be dismissed. Plaintiffs did not and cannot show they can meet their burden and legitimately amend the
complaint; therefore, Demurring Defendants demurrer must be sustained without leave to amend and Plaintiffs First
Amended Complaint must be entirely dismissed with prejudice.
For the reasons stated above, Demurring Defendants Demurrer should be sustained without leave to amend and Plaintiffs
Complaint should be entirely dismissed with prejudice.
<<signature>>
Jodi A. Konorti, Esq.
Attorneys for Defendants LAST DANCE, INC. dba RE/MAX ASSOCIATES (erroneously sued and served as Distinctive
Properties Real Estate, Inc., and RE/MAX Associates) and LITTLE.
221
End of Document
222
Reply to Opposition to Defendant John Contentos Demurrer to

Plaintiffs First Amended Complaint; Memorandum of Points and
Authorities in Support Thereof
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Jurisdiction:
California
Delivery Details
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1111
Comment:

San Diego County
v.
No. GIN 054 088.
October 16, 2006.
Reply to Opposition to Defendant John Contentos Demurrer to Plaintiffs First Amended Complaint; Memorandum
of Points and Authorities in Support Thereof
Robert T. Dolan (State Bar No. 110494), Lindsay Mc Menamin (State Bar No. 210269), Gaglione & Dolan, 20750 Ventura
Date: October 20, 2006
Time: 1.:30 p.m.
Place: Department 31
Complaint Filed: 7/19/05
1st Am. Complaint Filed: 8/18/06
Defendant JOHN CONTENTO hereby submits his memorandum of points and authorities in reply to plaintiffs opposition to
JOHN CONTENTOs demurrer.
MEMORANDUM OF POINTS AND AUTHORITIES

DEFENDANTS REPLIES TO PLAINTIFFS ARGUMENTS
I. PLAINTIFFS ARGUMENT AS TO PLAINTIFFS HAVING PLED FACTS SUPPORTING ALLEGED FRAUD
LACKS MERIT.
Plaintiffs cannot change the facts of their own complaint: plaintiffs never received the appraisal report for their review prior
to close of escrow. (First Amended Complaint FAC), 27-32.) Therefore, by their own contentions in plaintiffs First
Amended Complaint, they could not have possibly relied on or been induced by any representations in the JOHN
CONTENTO appraisal report. Plaintiffs cannot change this fact of when they received the appraisal. Nor can they now claim
with any validity that they communicated with JOHN CONTENTO prior to close of escrow. Rather, plaintiffs can only admit
that they repeatedly asked their agent, Michael Little, to provide them the appraisal report and that they failed to receive it
before close of escrow. (FAC, 27-32.) The plaintiffs argument therefore lacks any merit.
224
II. PLAINTIFFS ARGUMENT AS HAVING RELIED ON JOHN CONTENTOS APPRAISAL TO PURCHASE

THE PROPERTY IS WITHOUT MERIT.
Plaintiffs admitted they closed escrow on the Amante property on July 29, 2005 before anyone provided the appraisal to
them, on or after August 18, 2005. (FAC, 1-32.) Plaintiffs admit that Agent Michael Little did not provide the appraisal
until after close of escrow. (FAC, 32.) JOHN CONTENTO was never an agent of, nor owed any duty to, plaintiffs. His
appraisal report clearly indicates his client as the lender. Plaintiffs also never state in their First Amended Complaint having
communicated with JOHN CONTENTO, ever, regarding the appraisal.
Moreover, because plaintiffs never communicated with JOHN CONTENTO, he never represented himself as an agent for the
plaintiffs. Nor does the complaint state that plaintiffs real estate agent, Michael Little, represented to plaintiffs that JOHN
CONTENTO was an agent for plaintiffs. Finally, plaintiffs have produced no contract to show any contractual duty to
plaintiffs by JOHN CONTENTO.
JOHN CONTENTO is a real estate appraiser retained not by a real estate agent, but by the lending institution by statutory law
in a mortgage loan transaction, to appraise the property for his client, the lender. His only duty is to that client.
Therefore, plaintiffs argument that they relied on JOHN CONTENTOs appraisal lacks merit.
III. PLAINTIFFS ARGUMENT THAT THEY PROPERLY ALLEGED NEGLIGENT MISREPRESENTATION

LACKS MERIT.
The same arguments cited above can be repeated herein. Plaintiffs admitted to never reviewing the appraisal report nor being
provided with information within it prior to close of escrow. By their own facts as set forth in the First Amended Complaint,
this argument lacks merit.
IV. PLAINTIFFS ARGUMENT THAT JOHN CONTENTO OWED ANY DUTY AS THEIR AGENT LACKS
MERIT.
Plaintiffs admit they never communicated with JOHN CONTENTO; JOHN CONTENTO never communicated to plaintiffs
he was acting as their agent. This is plain in the facts of the First Amended Complaint. JOHN CONTENTO never undertook
to act on plaintiffs behalf. His only duty was to his client, the lender, as stated on the appraisal report. Finally, plaintiffs
admit to never receiving information from the appraisal report until after close of escrow. Therefore, no misrepresentations
could possibly have been made to plaintiffs.
V. PLAINTIFFS ARGUMENT THAT THEY PROPERLY ALLEGED NEGLIGENCE IS WITHOUT MERIT.

JOHN CONTENTO owes no duty to plaintiffs who were not his client. Even if JOHN CONTENTO owed a duty to plaintiffs,
they already admitted in their own complaint that they never even were provided the information in the appraisal report prior
to the close of escrow. Therefore, the information in that appraisal report could not have caused them any damages since they
could not have possibly relied on the information in the appraisal report to purchase the property. As plaintiffs admit, the
appraisal report was provided to them after close of escrow. (FAC, 27-332.) Therefore, they failed to support negligence
against JOHN CONTENTO.
CONCLUSION
225
Plaintiffs First Amended Complaint fails to state facts sufficient to support Causes of Action for Fraud, Negligent
Misrepresentation and Negligence against JOHN CONTENTO. In addition, the First Amended Complaint does not contain
facts with sufficient particularity to support the Fraud and Negligent Misrepresentation claims. Therefore, JOHN
CONTENTO requests that the Court sustain his Demurrer to the First, Fourth and Fifth Causes of Action. Finally, because as
a matter of law JOHN CONTENTO has no liability under the facts of this case for the First, Fourth and Fifth Causes of
Action, JOHN CONTENTO requests that the Court deny plaintiffs leave to amend as to those causes of action against JOHN
CONTENTO.
GAGLIONE & DOLAN
A Professional Corporation
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN
Attorneys for Defendant, JOHN CONTENTO
End of Document
226
Reply Brief of Defendants Re/Max and Little to Plaintiffs

Opposition to Motion to Strike Claim for Attorneys Fees and
Exemplary and Punitive Damages
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Jurisdiction:
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Delivery Details
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1111
Comment:

San Diego County
v.
No. GIN054088.
October 16, 2006.
Reply Brief of Defendants Re/Max and Little to Plaintiffs Opposition to Motion to Strike Claim for Attorneys Fees
and Exemplary and Punitive Damages
Dept No.: 31
Time: 1:30 p.m.
LAST DANCE, INC. and RE/MAX, INC.) and MICHAEL LITTLE (hereinafter LITTLE), hereby submit the following
reply brief to Plaintiffs Opposition to motion to strike Plaintiffs claim for attorneys fees and exemplary and punitive
damages as set forth in Plaintiffs First Amended Complaint (Complaint).
I. RE/MAX AND LITTLES MOTION TO STRIKE IS PROPERLY BEFORE THE COURT AND IN THE INTEREST
OF JUSTICE SHOULD BE HEARD.
In Berg v. Darden, plaintiffs counsel sent a Section 998 letter to Defendants counsel via facsimile. Post-trial, Defendants
counsel argued service of the statutory offer of compromise via facsimile was defective. The trial court agreed, but the Court
of Appeal abruptly reversed holding service of the statutory offer of compromise was not fatally defective primarily because
there was no dispute defendants counsel actually received and read the letter and understood it to be a Section 998 letter.
((2004) 120 Cal.App.4th 721, 732.)
Similarly here, Plaintiffs counsel evidently received and read RE/MAX and Littles Motion to Strike, as evidenced by the
filing and service of their Opposition to the Motion to Strike. Thus, Plaintiffs clearly understood the documents to be a
Motion to Strike. A party cannot legitimately oppose or intelligently respond directly to a paper, and the arguments and case
law within that paper, if that party has not received, read, and understood that document.
On September 15, 2006, the Motion to Strike was faxed with a confidential facsimile cover sheet to Susan, a dispatch
228
officer at Knox Attorney Service. Although the documents were intended to be sent to Susan at Knox Attorney Service
(Knox) for proper personal service on Plaintiffs counsel, the documents were inadvertently directly faxed to Plaintiffs
counsels facsimile number used at its regular place of business since the start of this litigation. (See Berg v. Darden, supra,
120 Cal.App.4th at 733.) The confidential facsimile cover sheet clearly states,
Please serve the attached Demurrer & Motion to Strike and Notice of Lodgment today on:
William M. Aron, Esq.
Jeffrey L. Hogue, Esq.
Aron & Hogue
525 B Street, Suite 1500
San Diego, CA 92101.
Please file the proof of service with the SD Superior Court, North County (Vista). (See Declaration of Jodi A. Konorti),
At Plaintiffs counsels first reading of this confidential facsimile cover sheet, they should have immediately noticed it was
not intended for them, but instead intended for Susan to serve on them. On October 13, 2006, William Aron confirmed his
office does not have a Susan working it requested Susan to serve and file the Motion to Strike and POS. RE/MAX and
Little had no reason to believe the Motion to Strike was not sent to Knox because Plaintiffs counsel failed to notify
RE/MAX of the error. Plaintiffs subsequently served their Opposition to the Motion to Strike, evidencing that they received,
read, and understood the paper to be a Motion to Strike. Thus, under the case law and because Plaintiffs failed to inform
RE/MAX and Little of the transmission error, RE/MAX and Little respectfully request the Court hear and consider RE/MAX
and Littles Motion to Strike and grant the same.
II. THE COURT MUST STRIKE PLAINTIFFS PRAYER FOR ATTORNEYS FEES.
The basic rule in American Jurisprudence is that regardless of which party in an action prevails, each party bears their own
attorneys fees. (Alyeska Pipeline Service Co. v. Wilderness Socy (1975) 421 U.S. 240.) Plaintiffs bear the burden of proving
their entitlement to the attorneys fees they seek in this matter. Under California law, attorneys fees can only be obtained in a
contract or statute. (Code of Civ. Proc. 1021.)
a. No Contractual Authority Exists Allowing a Recovery of Attorneys Fees

Plaintiffs are not entitled to attorneys fees from RE/MAX and Little because there is no contract permitting such an award.
RE/MAX and Little, as the agents and brokers in the transaction, are not parties to the Residential Purchase Agreement
(RPA) which Plaintiffs base their claims on, as a matter of law. (See Super 7 Motel Assoc. v. Wang (1993) 16 Cal.App.4th
541.) The RPA clearly states, Real estate brokers are not parties to the Agreement between Buyer and Seller. (NOL,
Exhibit C, p.8 (emphasis added).) RE/MAX is a real estate broker; therefore, RE/MAX and Little are not parties to the
contract involved in the instant case.
Plaintiffs claim that attorneys fees may be awarded under an implied contract pursuant to California Code of Civil
Procedure section 1 021 is completely unsubstantiated. Attorneys fees may be recovered when there is an express provision
in the contract that provides for the recovery of fees, and the parties to the litigation are parties to the contract containing the
attorney fee provision. (Code of Civ. Proc. 1033.5(a)(10)(A).) First, there is no contract between RE/MAX and Plaintiffs.
Second, assuming arguendo there was an implied contract, there is no express attorneys fees provision permitting Plaintiffs
recovery of such an award. Further, even if there was an implied contract, which there is not, Plaintiffs provide absolutely no
evidence showing an intent or agreement that attorneys fees would be a part of that contract. An attorneys fees provision,
229
nor where any specific attorneys fees terms ever even remotely mentioned, discussed, or negotiated between Little and
Plaintiffs. Attorneys fees are awarded if based on contract. There is no contract here permitting an award of attorneys fees.
Contrary to Plaintiffs argument there is an alleged implied contract, there is still no express provision for attorneys fees.
There is absolutely no contractual basis for Plaintiffs claim for attorneys fees. Accordingly, the court must strike Plaintiffs
demand for attorneys fees.
III. THE COURT MUST STRIKE PLAINTIFFS PRAYER FOR EXEMPLARY AND PUNITIVE DAMAGES.
Plaintiffs allege they are entitled to exemplary and punitive damages for the First, Second, Third, Sixth, and Seventh causes
of action. (NOL, Exhibit A, p.22:1-5.) However, Plaintiffs have no basis for an exemplary and punitive damages award
because the Complaint fails to allege sufficient facts necessary to support a fraud claim.
Although PLAINTIFFS allege a Fraud, Fraudulent Concealment, Breach of Implied Covenant of Good Faith and Fair
Dealing, Constructive Trust, and Breach of Fiduciary Duties, an alleged breach of fiduciary duty without malice, fraud or
oppression does not permit an award of punitive damages. (Delos v. Farmers Group (1979) 93 Cal.App.3d 642, 656-657;
Flyers Body Shop v. Ticor Title, (1986) 185 Cal.App.3d 1149, 1154.) The mere alleged carelessness or ignorance of the
defendant does not justify the imposition of punitive damages. What is necessary for the award of punitive damages is
conduct that displays extreme indifference that decent citizens should not tolerate it. (Hughes v. Blue Cross (1989) 215
Cal.App.3d 832, 847 (emphasis added).)
Plaintiffs entire Complaint is devoid of any allegations of malice, oppression, or fraud, and there is no evidence, of conduct
of any indifference, let alone such extreme indifference in this case, as is evidenced by Plaintiffs allegation that LITTLE
merely believed that the [Plaintiffs] were getting a good deal by purchasing the Amante Property for $1,200,000.00. (NOL,
Exhibit A, p. 9:24-26.) A belief that a property is a good deal or fair value does not equate to maliciousness, in his office.
(See Declaration of Jodi A. Konorti). On the facsimile cover sheet, it clearly states, if the reader of this message is not the
intended recipient ... if you have received this communication in error, please notify us immediately by telephone....
(emphasis added). The direct telephone number for the sender is printed at the top of the cover sheet. RE/MAX and Little
never received a telephone call from Plaintiffs counsel informing of the misdirected facsimile on that day or any day
thereafter. (See Declaration of Jodi A. Konorti.) The only communication RE/MAX and Little received was an email on
September 25, 2006 asking for a copy of the Proof of Service. (See Decl. Of Jodi A. Konorti.) At this point, RE/MAX and
Little honestly believed the facsimile was properly sent to the delivery service to be served on Plaintiffs by the delivery
service; there was no reason to believe otherwise as they did not hear from Plaintiffs counsel or the delivery service.
RE/MAX and Littles counsel, Jodi A. Konorti, continuously called Susan at Knox regarding the status of the proof of
service. To date, RE/MAX has not received one in the mail from Knox, and until the drafting of this Motion to Strike thought
Knox served the documents on Plaintiffs counsel.
Promptly upon receiving Plaintiffs request for a copy of the Proof of Service (POS), RE/MAX and Little responded, in
writing, they would forward the POS immediately upon receipt of a copy from the delivery service because RE/MAX and
Little still though Knox served the documents. Although on numerous occasions RE/MAX and Little requested the delivery
service to immediately send the POS, RE/MAX and Little have yet to receive it. To date, RE/MAX and Little nave asked at
least three times and have left at least two additional messages demanding the POS. (See Declaration of Jodi A. Konorti). The
delivery service has never confirmed either way whether they received the documents or served the documents. On Monday,
October 9, 2006, RE/MAX and Little spoke with the delivery service; she confirmed she would send it over the POS. At the
time of filing this Reply Brief, RE/MAX and Little have still not received the POS from the delivery service.
RE/MAX and Little intended to fax the Motion to Strike to Susan at Knox Attorney Service for personal service on
Plaintiffs counsel. Rather, the Motion to Strike went straight to Plaintiffs counsels office via facsimile in clear error since
their office does not have a Susan and but is merely an opinion. Because exemplary and punitive damages are not
recoverable without a showing of malice, fraud or oppression, RE/MAX and Littles Motion to Strike must be granted and
Plaintiffs exemplary and punitive damages claims must be stricken from the Complaint.
230
CONCLUSION
There is no contract supporting a claim for attorneys fees and Plaintiffs fail to show a any malice, oppression, or fraud by
RE/MAX and Little supporting an award of punitive and exemplary damages. For the foregoing reasons the Court should
grant this motion and strike the attorneys fees and exemplary and punitive damages prayers in Plaintiffs Complaint.
<<signature>>
Attorneys for Defendants LAST DANCE, INC. dba RE/MAX ASSOCIATES (erroneously sued and served as Distinctive
End of Document
231
Memorandum of Points & Authorities in Reply to Plaintiffs

Opposition to Defendant Coats Enterprises Demurrer to Plaintiffs
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Comment:

San Diego County
v.
No. GIN 054088.
October 13, 2006.
Memorandum of Points & Authorities in Reply to Plaintiffs Opposition to Defendant Coats Enterprises Demurrer to
Plaintiffs First Amended Complaint
Joseph L. Stine, Attorney at Law, CA Bar No. 86544, Law Office of Joseph L. Stine, 380 South Melrose Drive, #306, Vista,
COMPLAINT FILED: July 19, 2006
FIRST AMENDED COMPLAINT
FILED: August 18, 2006
Dept.: 31
Time: 1:30 p.m.
Defendant COATS ENTERPRISE (COATS) submits its Reply Memorandum of Points and Authorities in support of its
demurrer to the First Amended Complaint filed in the instant action.
I.
PLAINTIFFS SEEK TO HOLD DEFENDANT COATS LIABLE FOR LOAN AGENT LITTLES ALLEGED
DELAY IN DELIVERING TO THEM A COPY OF THE LOAN APPRAISAL UPON PLAINTIFFS VERBAL
REQUEST AND BEFORE THE CONSUMMATION OF THE PURCHASE. THIS THEORY OF LIABILITY IS
UNSUPPORATABLE AT LAW.
On review of their Opposing Argument, it is apparent that the gravamen of Plaintiffs claims against Defendant COATS is
based on the timing of loan agent LITTLES compliance with their requests for a copy of the loan appraisal. They bemoan
the substance of the appraisal but do not suggest that this Defendant is somehow responsible for the allegedly faulty analysis
offered in it. The thrust of the complaint under all alleged causes of action focuses on the alleged withholding of the appraisal
until after close of escrow despite prior verbal requests for a copy of it. They argue that this Defendant is responsible to
make sure that the appraisal on the Amanate Property was timely delivered to the Ummels. (Plaintiffs Points & Authorities
233
p.3, 1. 5-6.)
Accordingly, Plaintiffs seem to imply that loan agent Little had a duty to provide them for a copy of the appraisal before the
close of escrow upon Plaintiffs prior verbal request and the breach of that duty makes Defendant COATS, as the principal
mortgage lender, liable when they allegedly overpaid for the purchase before reviewing the appraisal. The appraisal itself
concluded that the house was worth the very $1.2 million that the Plaintiffs paid for it. Plaintiffs suggest that had they viewed
the appraisal prior to closing escrow they would have realized that it was in error and refused to conclude the purchase at that
price.
Plaintiffs offer absolutely no legal authority supporting this wholly convoluted theory of liability against a loan broker. By
what legal authority do we measure the timeliness of a loan brokers actions in providing a copy of an appraisal to his
borrower client? Plaintiffs offer nothing! By what legal authority is a loan broker held liable to his borrower client for their
overpayment on the purchase of the property securing the loan? Plaintiffs offer nothing! By what legal authority can a delay
in providing a copy a loan appraisal prepared by an independent appraiser subject the loan agent to liability for an ill-advised
purchase as opposed to an ill-advised loan? Once again, Plaintiffs offer nothing!
By contrast, this Defendant has identified an appropriate legal standard for defining the applicable duties of a loan broker. A
mortgage broker is a real estate licensee whose conduct is regulated by the Department of Real Estate. (See Cal Bus. & Prof.
Code 10131.) A mortgage broker may be authorized to act as the lender or, in the alternative, to make commitments on
behalf of the lender. (See Cal. Bus. & Prof Code 10176(k).)
Moreover, a mortgage broker, as the lender or operating on behalf of the lender, is subject to a very specific legal protocol in
responding to borrower requests for a copy of an appraisal. Cal Bus. & Prof. Code 11423(b) requires that such requests be
made in writing. Plaintiffs allege having made verbal requests. In responding to such requests, Section 11423(c) says that the
lender has a duty to provide a copy of the appraisal by the fifteenth (15th) day after receiving the appraisal. Plaintiffs allege
that the appraisal was completed by July 20 (First Amended Complaint 120) and concede that they closed the sale a mere
nine (9) days later on July 29. (First Amended Complaint 31). - As such, the legal deadline for delivering a copy of the
appraisal had not yet expired.
Plaintiffs argue mat this Defendant overreads the significance of Cal Bus. & Prof. Code 11423 and that a mortgage broker
is not a lender for the purpose of that statute. Under this argument, there would be imposed on mortgage broker Little, and
his principal Defendant COATS, a more rigorous duty of care to his client borrower than the lending entity itself would have
in sharing a loan appraisal with a prospective borrower. Under this scenario, loan agents throughout the state would be put in
untenable situations with conflicting duties to their borrower and lender clients, respectively. For example, they could be
compelled to comply with a borrowers oral request for a copy of an appraisal in less than fifteen (15) days when its lender
client, in reliance on Section 11423, declines to provide the appraisal without a written request and until just before the
expiration of the fifteenth (15th) day. Plaintiffs offer no legal authority in support of the proposition that a loan broker must
promptly comply with his borrower clients verbal request for a copy of an appraisal and, if he fails to do so, he runs the risk
of being liable to a client who proceeds to purchase property for an inflated price without first seeing the appraisal itself.
Plaintiffs argument defies law, logic, and common sense. A loan broker is tasked with finding money for clients and not
with guiding them in locating property to purchase for a fair price. The loan brokers duties and consequent liability are based
on the loan transaction itself (See, e.g., Wyatt v. Union Mortgage Co. (1978) 24 Cal. 3d 773.) He is not responsible for the
terms and conditions of the underlying purchase. Plaintiffs muddy the legal waters between the duties of a purchase agent and
those of a loan agent. They offer no legal support for loan agent liability to a borrower client who allegedly overspends not in
the loan transaction itself but in the purchase of the underlying property securing the loan.
II.
PLAINTIFFS FAIL TO MAKE ANY FACTUAL ALLEGATIONS THAT WOULD SUPPORT LIABILITY
AGAINST DEFENDANT COATS FOR ANY AFFIRMATIVE REPRESENTATIONS MADE BY HIS AGENT
LITTLE ACTING AS A LOAN AGENT.
234
In Section IV of their argument, Plaintiffs would have this Court believe that they have stated facts supporting liability for
representations made by Agent Little on behalf of Horizon Pacific Financial aka Defendant COATS.
A reading of the First Amended Complaint reveals conclusionary references without essential factual allegations suggesting
that the representations supporting potential liability were made by Agent Little as a loan agent working for Defendant
COATS. Paragraph 35, as referenced in the argument, attempts to cast a large net over all representations made by Agent
Little. Plaintiffs suggest that everything he stated was in his dual capacity as purchasing agent working for Defendant
REMAX as well as loan agent working for Defendant COATS.
However, a close look at the representations themselves shows that they were made about the value of the home itself as
priced for purchase rather than anything to do with the loan needed to complete the purchase. These representations are found
in Paragraph 37. They deal with negotiations to get the best price for the property rather than any terms, conditions, or
requirements for financing the purchase thru a loan facilitated by Agent Little serving Plaintiffs as their loan agent.
Moreover, Plaintiffs, in general allegations incorporated in all of their causes of action, expressly recognize the distinction
between Agent Littles role as a purchasing agent on behalf of Defendant REMAX and his subsequent, distinct role as a loan
agent on behalf of Defendant COATS. In Paragraph 14, it is alleged that on or about April 2, 2005, Agent Little was retained
to represent them as in the capacity of a real estate broker and agent in the Ummels prospective purchase of a property in
San Diego County. (The clear reference here is to Agent Little working on behalf of Defendant REMAX.) The paragraph
goes on to allege that [s]ometime later, Agent Little, on behalf of Horizon, came to a verbal agreement with the Ummels to
represent the Ummels in the capacity of a real estate broker and agent in the arrangement of the Ummels loan for the
purchase of a property in San Diego County.
Accordingly, by the Plaintiffs own allegations, there is a clear distinction both in time and capacity in Agent Littles role as
an agent in finding suitable property to purchase (i.e., working for Defendant REMAX) and his ancillary role, after
negotiating the purchase of that property, in securing a loan to finance the purchase (i.e., working for Defendant COATS).
Representations about the purchase would have been made in his capacity as a REMAX agent notwithstanding Paragraph
35s scattergun, inconsistent references to the contrary. Representations about the financing for the purchase would have been
in his capacity as a HORIZON aka COATS agent. Any offhand remarks about the purchase itself made by Little as a loan
agent would have been purely gratuitous comments made after Plaintiffs had executed a contract to purchase the property for
an allegedly inflated $1.2 million.
In sum, the pleading of facts speak louder than pleading of empty conclusions inconsistent with the alleged facts. None of the
alleged representations deal with issues that were within the scope of Agent Littles duties as a loan broker on behalf of
Defendant COATS.
III.
PLAINTIFFS DO NOT ALLEGE FACTS SUPPORTING A BREACH OF THE IMPLIED WARRANTY OF GOOD
FAITH AND FAIR DEALING AS IT REALTES TO THE LOAN TRANSACTION ITSELF.
In Section VI, Plaintiffs misstate the argument made in this Defendants opening brief. Defendant acknowledges that
Plaintiffs have pled the existence of a verbal agreement with Defendant COATS as a loan broker, working thru his Agent
Little, to secure a loan to facilitate the underlying purchase.
The point made in the opening brief was that Plaintiffs have failed to allege facts dealing with the agreement to facilitate
the loan that would support liability based on any breach of the implied warranty of good faith and fair dealing with respect
to that agreement. Plaintiffs attempt to throw mud against the wall in the vain hope that liability will stick against some
Defendant based on alleged fraud in connection with their acceptance of an inflated purchase price. They allege nothing
whatsoever suggesting that Agent Little, on behalf of Defendant COATS, did or failed to do anything that a trier of fact could
find to be a breach of the implied covenant on the loan facilitation as opposed to the purchase agreement.
Plaintiff misses the argument, sets up a straw man, and then knocks him down.
235
IV.
CONCLUSION
Plaintiffs offer nothing to salvage a wholly specious claim against a loan broker for conduct and omissions directed at Agent
Little as a purchase agent on behalf of Defendant REMAX and Defendant CONTENTO as the appraiser. Plaintiffs have no
conceivable action against a loan agent for allegedly being defrauded into overpaying on a purchase agreement for which that
agent played no role. No amount of tinkering with the allegations in the complaint would be sufficient to buttress a claim that
is fatally flawed at its core.
For these reasons, the moving Defendant respectfully requests that its demurrer be granted and that further amendment he
denied as an exercise in futility.
Dated: 10-13-06
LAW OFFICE OF JOSEPHL. STINE
<<signature>>
By Joseph L. Stine
Attorney for Defendant COATS ENTERPRISE
End of Document
236
Opposition of Plaintiffs to Defendant Remaxs and Defendant Agent

Littles Jointly Filed Demurrer to Plaintiffs First Amended
Complaint
Enterprise, Inc.; Michael Little; individually; John Ontento, SRO, a sole proprietor; Does 2 through 50, Defendants. |
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San Diego County
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little; individually; John Ontento, SRO, a sole proprietor;
No. GIN 054 088.
October 5, 2006.
Opposition of Plaintiffs to Defendant Remaxs and Defendant Agent Littles Jointly Filed Demurrer to Plaintiffs
William M. Aron, Esq., SBN 234408, Jeffrey L. Hogue, Esq., SBN 234557, Aron & Hogue, 525 B. Street, Suite 1500, San
Diego, CA 92101, Telephone: (619) 858-4748, Attorneys for Plaintiffs Martha and Vernon Ummel.
Assigned to the Honorable Lisa Guy-Schall.
Time: 1:30 p.m.
Dept: 31
Plaintiffs, Martha Ummel and Vemon Ummel (collectively, the Ummels) submit the following Memorandum of Points and
Authorities in support of their Opposition to Defendant Last Dance, Inc.s aka RE/MAX (Defendant Remax) and Michael
Littles (Defendant Agent Little) jointly filed demurrer to Plaintiffs First Amended Complaint (FAC.)
I.
MATERIAL FACTUAL ALLEGATIONS.
The Ummels were an elderly out-of-town couple, looking for residential property to purchase in the San Diego County area,
(FAC, 8.) Unfamiliar with the San Diego County, they engaged the services of various real estate professionals to assist
them. (FAC, 8-17.) The Ummels employed Defendant Agent Little, an employee of real estate broker Defendant Remax.
(FAC, 4, 14.) Agent Little was also an employee of mortgage broker Coats Enterprise, Inc. aka Horizon Pacific Financial.
(Horizon.) (FAC, 4.)
During the course of his relationship with the Ummels, Defendant Agent Little acted as both an authorized agent for
Defendant Remax and for Horizon, and Defendant Remax took no action to prevent Defendant Agent Littles dual role.
(FAC, 35.) Through Defendant Remax, Defendant Agent Little was to perform real estate services on behalf of the
Ummels foil their prospective San Diego home purchase, and Defendant Agent Little and the Ummels came to an
agreement in this regard. (FAC, 14.)
On or about May 29, 2005, the Ummels entered escrow for 1657 Amante Court Carlsbad, CA (Amante Property.) (FAC,
238
24.) During the escrow period, the Ummels requested Defendant Agent Little, the authorized agent of Defendant Remax,
to arrange the appraisal of the Amante Property. (FAC, 27.) Defendant Agent Little, acting as agent of the Ummels,
retained the services of appraiser John Contento, SRO, on behalf of the Ummels. (FAC, 28.) On or about July 21, before the
close of escrow, Defendant Agent Little, the authorized agent of Defendant Remax, informed the Ummels that the
appraisal had been completed. (FAC, 29.) However, unbeknownst to the Ummels, the appraisal misrepresented that the
Amante Property was worth $1,200,000 when the true appraised value of the Amante Property was only $1,050,000. (FAC,
41-44.) Also, unbeknownst to the Ummels, Defendan Agent Little, the authorized agent of Defendant Remax, failed to
disclose very materia information concerning recent home sales in the immediate area of the Amante Property that would
have alerted the Ummels to their eventual overpayment. (FAC, 38.) In reliance on the aforementioned misrepresentations
made by Defendant Agent Little by and on behalf of Defendant Remax, the Ummels were induced to and did close escrow
and purchase the Amante Property for the inflated price of $1,200,000. (FAC, 31, 45.) Had the Ummels known the actual
facts, they would not have taken such action. (FAC, 45.)
To compound their liability, Defendant Agent Little, as authorized agent of Defendant Remax, withheld the copy of the
appraisal report from the Ummels until after the close of escrow. (FAC, 27-32.) The appraisal was withheld from the
Ummels, despite their repeatec requests to Defendant Agent Little, the authorized agent of Defendant Remax, to deliver a
copy of the appraisal to them. (FAC, 27-32.)
As shown below, this Court should overrule Defendant Remaxs and Defendant Agent Littles demurrer because the
Ummels have adequately pled facts sufficient to support all of the causes of action discussed herein. The defendants have not
advanced any relevant legal authority that would preclude the Ummels from pursuing any (and certainly not all) of the causes
of action alleged in the FAC. Additionally, most of defendants arguments in their demurrer represent oppositions to the
material allegations (i.e., facts and evidence) made in the FAC, rather than challenging the sufficiency of the claims raised
therein. As such, the appropriate forum for many of the arguments made in defendants demurrer would be in their Answer
where they can contest or deny the allegations made in the FAC, rather than in a demurrer where only the sufficiency of the
pleadings should be called into question.
In the alternative, should this Court grant Defendant Remaxs and Defendant Littles demurrer, in whole or part, it should
grant Ummels leave to amend in the interests of justice. The Ummels should have an opportunity to present their claims and
such leave to amend would not prejudice either Defendant Remax or Defendant Agent Little.
II.
THE COURT SHOULD NOT CONSIDER DEFENDANTS DEMURRER BECAUSE ITS SERVICE ON THE
UMMELS WAS DEFECTIVE.
Cal. Civ. Proc. 1013(e) provides, [s]ervice by facsimile transmission is permitted only where the parties agree and a written
confirmation of that agreement is made. (Emphasis Added.) Defendant Remax and Defendant Agent Little served their
demurrer via a facsimile dated September 15, 2006. The Ummels never received any other copy of the defendants demurrer.
The Ummels have requested a copy of the defendants proof of service, but have not received one to date.
The Ummels never agreed with Defendant Remax, nor Defendant Agent Little, to accept facsimile service. The Ummels
were not even asked. Additionally, the Ummels never received any written confirmation demonstrating that said defendants
thought it was acceptable to serve the Ummels via facsimile. Accordingly, defendants demurer is not properly before the
Court; therefore, it should not be heard, nor considered by this Court.
Without waiving the foregoing, if the Court is inclined to consider Defendant Remaxs and Defendant Littles demurrer, the
Ummels present the following arguments in opposition.
III.
239
THE UMMELS HAVE PROPERLY ALLEGED FRAUD (1st COA) AND FRAUDULENT CONCEALMENT (2nd
COA).
Defendant Remax and Defendant Agent Little argue that the Ummels have not stated a cause of action for fraud (1st COA)
and fraudulent concealment (2nd COA). (Demurrer, p. 4.) In support of this position, defendants argue that the Ummels
cannot prove either reliance or damages as to these causes of action, and that the Ummels claims lack specificity. As shown
below, defendants argument fails.
A. The Ummels have pled the reliance and damage elements of fraud (1st COA) and fraudulent concealment (2nd COA).
A demurrer can be used only to challenge defects that appear on the face of the pleading or for matters outside the pleading
provided that they are judicially noticeable. (Blank v. Kirwan (1985) 39 C3d 311, 318; Dowbedian v. Mercury Ins. Co.
(2004) 116 CA 4th 968, 994. (Emphasis Added.).) No other extrinsic evidence may be considered (i.e., no speaking
demurrers). (Ion Equip. Corp. v. Nelson (1980) 110 CA3d 859, 862.) No matter how unlikely or improbable the causes of
action plead in a plaintiffs complaint, a plaintiffs allegations must be accepted as true for the purposes of ruling on the
demurer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA3d 593, 604.) Problems of proof are irrelevant. The
question of whether plaintiff can prove any of his allegations, or possible difficulties in making such proof, is of no concern
in ruling on a demurer. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 C3d 197, 213-214.)
A plain reading of 45-47 and 55-58 of the FAC make clear that the Ummels have pled reliance and damages as to fraud
(1st COA) and fraudulent concealment (2nd COA). In the demurrer, Defendant Remax and Defendant Agent Little attempt to
disprove the Ummels reliance and damage allegations with extrinsic evidence. (Demurrer, pp. 6-7.) Specifically, the
defendants claim (1) the [Ummels] were looking for property up to the cost of $1,400,000.00 (Demurrer, p. 6); (2) the
[Ummels] did not present a counter-offer to Sellers counter of $1,200,000.00 for the [Amante] Property (Demurrer, p. 6);
(3) the [Ummels] made an offer on another property for $1,200,000.00, prior to the [Amante] Property (Demurrer, p. 6);
and (4) [a]ny damages claimed by [the Ummels are] the result of the fluctuating real estate market. (Demurrer, p. 7.)
Statements (1) - (4) above were never alleged in the FAC. Rather, they represent extrinsic evidence presented by the
defendants. As such, Defendant Remax and Defendant Agent Little should be precluded from using extrinsic evidence to
disprove any of the causes of action in the FAC.
B. The Ummels have pled fraud (1st COA) and fraudulent concealment (2nd COA) with sufficient particularity.
Defendant Remax and Defendant Little claim that the Ummels fraud (1st COA) and fraudulent concealment (2nd COA)
claims fail to plead facts with sufficient particularity. (Demurrer, pp. 4, 7.) While it is true that one who pleads fraud needs to
allege facts rather than general conclusions, a court should not look suspiciously at the complaint or seek to absolve the
defendant from liability on the highly technical requirements of form in pleadings. (5 Witkin, California Procedure 670 (4th
ed. 1997).) Pleading facts in ordinary and concise language is permissible in fraud cases as in any other, and liberal
constriction of the pleading is much a duty of the court in these as in other cases. (Id.) Also, the requirement of particularity
in pleading fraud should not be overdone. Complaints must be kept to a reasonable length. If they are too detailed (e.g.
setting forth each statement verbatim, specifying the time, place and medium by which made), they may provide less
effective notice and be less useful in framing the issues, than would a shorter, more generalized version. (Comm. on
Childrens Television Inc. v. Gen. Foods Corp., 35 Cal.3d 197, 213-214 (1983).)
The elements of fraud are: (1) a false representation or concealed material fact, (2) that the defendant knew was false or did
not have sufficient knowledge to warrant the representation. (3) with the intent to induce the Plaintiffs to act on the false
representation or concealed material fact, (4) that plaintiff relied upon, (5) to plaintiffs damage. (Reed v. King (1983) 145
Cal.App.3d 261, 26*4.) As defendants allege, a cause of action for fraudulent concealment contains the same elements of
fraud, except that fraudulent concealment includes the element of duty to disclose. (Demurrer, p. 4.)
Turning to the allegations, the the FAC specifically outlines what the false representations were (that the Amante Property
was worth $ 1,200,000 when the true appraised value was only $1,050,000 (FAC, 44), that other homes in the immediate
240
neighborhood of the Amante Property were all selling for over $1.2 million when they were not (FAC, 37-38), and a home
across the street from the Amante Property was selling for the same price as the Amante Property when it was not (FAC,
37-38));1 who they were made by (Defendant Agent Little and Defendant Remax (FAC, 37, 39)); the circumstances
surrounding the representations (preceding the offer and during the escrow period for the Amante Property (FAC, 24,
27-31)), the alleged purposes for which the misrepresentations were made (in order to induce the Ummels to purchase the
Amante Property (FAC, 45), and the damages caused (purchasing the Amante Property for far in excess of the fair market
value and selling the San Rafael Property for far less than fair market value (FAC, 26, 46.).)
1
The FAC also alleges several other misrepresentations by Defendant Agent Little and Defendant Remax in 37-44.
Concerning the additional pleading requirement to state a fraudulent concealment cause of action, paragraph 55 of the FAC
clearly alleges that Defendant Agent Little and Defendant Remax owed a duty to the Ummels to disclose facts materially
affecting the value or desirability of the Amante Property.
As shown the FAC provides more than adequate detail and specificity, and has been pled correctly. Consequently, Defendant
Remaxs and Defendant Littles demurrer on this issue should be overruled.
IV.
THE UMMELS PROPERLY ALLEGED NEGLIGENT MISREPRESENTATION (5th COA).
Unlike fraud, negligent misrepresentation does not require allegations of actual knowledge of the falsity of the alleged
fraudulent representation, but merely facts showing the representation was made without reasonable grounds for believing it
to be true. (5 Witkin, California Procedure 683 (4th ed. 1997).) Those facts were pled. Paragraph 70 of the FAC clearly
states that [Defendant Remax and Defendant Agent Little] made said representations without any reasonable ground for
believing it to be true and in a manner not warranted by each defendants information. Further, the FAC incorporates by
reference the specific allegations made hi the cause of action for fraud against Defendant Remax and Defendant Agent Little.
(FAC, 68.) It follows that the Ummels have sufficiently stated facts to constitute a cause of action for negligent
misrepresentation, in addition to fraud.
V.
THE UMMELS PROPERLY ALLEGED BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR
PEALING (3rd COA), NEGLIGENCE (4th COAL AND BREACH OF FIDUCIARY DUTY (6th COA).
Defendant Remax and Defendant Agent Little argue that the Ummels have not properly alleged breach of the implied
covenant of good faith and fair dealing (3rd CO A), negligence (4th COA), and breach of fiduciary duty (6th COA).
Defendants argue that the Ummels causes of action are defective because the Ummels suffered no damage. (Demurrer, p. 9.)
Defendant Remax and Defendant Agent Little attempt to support this position by claiming that the appraisal (which the
Ummels allege is fraudulent) supports the $1,200,000 purchase price the Ummels paid for the Amante Property. (Demurrer,
pp. 9-10.) Defendants argument is misguided two reasons.
First, a material allegation in the FAC is the fact that the appraisal is fraudulent (FAC, 41-44.) Specifically, the Ummels
allege that the true appraised value of the Amante Property is $1,050,000, which is $150,000 less than what the Ummels
purchased the Amante Property -- implying the Ummels suffered no less than $150,000 in damages. (FAC, 44.) Defendant
Remax and Defendant Little advance no legal authority to support its position that the public is precluded from suing a
perpetrator in tort for any malfeasance in connection with the purchase price of residential real estate so long as an appraisal2
coincides with the purchase price.
241
And, in the instant action the plaintiffs allege the appraisal is fraudulant.
Second, the Ummels allege damages elsewhere in the FAC. Setting aside the defective appraisal, the Ummels further allege
damages in that they (1) substantially overpaid for the Amante Property (FAC, 38), (2) suffered substantial damage as a
result of the negligence of Defendant Remax and Defendant Agent Little (FAC, 67), and (3) purchased the Amante
Property for a greatly exorbitant price, far in excess of the fair market value, (FAC, 46, 73, 78, 82.) Further, Defendant
Agent Littles and Defendant Remax;s false representations caused the Umraels to suffer additional damage as a result of
accepting a below market price for their prior home that they needed to sell to purchase the Amante Property. (FAC, 26.)
The Ummels properly allege breach of the implied covenant of food faith and fair dealing (3rd COA), negligence (4th COA),
and breach of fiduciary duty (7th COA). Consequently, Defendant Remaxs and Defendant Agent Littles demurrer on mis
issue should be overruled.
VI.
THE UMMELS PLEADED A CONSTRUCTIVE FRAUD AS OPPOSED TO A CONTRUCTTVE TRUST
CAUSE OF ACTION (6th COA) AND RESPECTFULLY REQUEST LEAVE TO AMEND.
The Ummels inadvertently misalleged a constructive trust cause of action as opposed to a constructive fraud cause of action.
This can be corrected by amendment. (Cal. Code of Civ. Proc. 473.) The essential elements in a constructive fraud cause of
action are as follows: (1) fiduciary or confidential relationship, (2) breach of that duty, (3) advantage gained, (4) justifiable
reliance, (5) causation, and (6) damages. (Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365, 373 (1975);
Salahutdin v. Valley of Cal., Inc. 24 Cal, App. 4th 555, 562 (1994); Demetris v. Demetris, 125 Cal. App. 2d 440, 444 (1954);
Odorizzi v. Bloomfield Sch. Dist., 246 Cal. App. 2d 123, 129 (1966); Tyler v. Childrens Home Socy of Cal., 29 App. 4th
511, 549.) In the FAC, the Ummels properly allege each of the aforementioned elements for a constructive fraud cause of
action. (FAC, 75-79.)
Denying leave to amend is an abuse of discretion where there is any reasonable possibility that the plaintiff can state a valid
cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Ummels can state a valid cause of action by
replacing trust with fraud. Accordingly, this Court should grant the Ummels leave to amend the FAC accordingly.
VII.
IN THE ALTERNATIVE. LEAVE TO AMEND SHOULD BE GRANTED TO THE UMMELS IN THE INTEREST
OF JUSTICE.
There is a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon
their substantial merits where such authorization does not prejudice the substantial rights of others. (Douglas v. Sup. Ct.
(1989) 215 Cal.App.3d 155, 158.) Moreover, it is a rare case in which a court will be justified in refusing a party leave to
amend his pleading so that he may properly present his case. (Id.)
Although Defendant Remaxs and Defendant Agent Littles demurrer routinely makes blanket arguments that the demurrer
should be sustained and the Ummels should not be provided leave to amend, defendants fail to assert any justification for
denying the Ummels such right. Both defendants likewise fail to assert any justification that granting the Ummels leave to
amend would prejudice Defendant Remax or Defendant Agent Little in any way. If this Court determines that the Ummels
pleadings are in some manner deficient, then it is respectfully requested that this Court grant the Ummels leave to amend
accordingly in order to preserve its causes of actions against Defendant Remax and Defendant Agent Little.
242
VIII.
CONCLUSION
For the foregoing reasons, the Ummels respectfully request that this Honorable Court overrule the demurer in its entirety,
except as to the Sixth Cause of Action, whereby the Ummels respectfully request this Court for leave to amend. In the event
that this Court sustains some or all of the demurer, the Ummels respectfully request that this Court grant the Ummels leave to
amend the FAC accordingly.
ARON & HOGUE
By: <<signature>>
WILLIAM M. ARON, ESQ.
JEFFKEJ L. HOGUE, ESQ.
Attorneys for Plaintiffs,
MARTHA UMMEL, VERNON UMMEL
End of Document
243
Plaintiffs Opposition to Defendant Horizons Demurrer to Plaintiffs

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Comment:

San Diego County
v.
No. GIN 054 088.
October 5, 2006.
Plaintiffs Opposition to Defendant Horizons Demurrer to Plaintiffs First Amended Complaint
Complaint Filed: July 19; 2006
Time: 1:30 p.m.
Dept: 31
Plaintiffs, Martha Ummel and Vernon Ummel (collectively, the Ummels) submit the following Memorandum of Points and
Authorities in support of their Opposition to Defendant Coats Enterprise, Inc.s aka Horizon Pacific Financial (Defendant
Horizon) demurrer to Plaintiffs First Amended Complaint (FAC).
I.
The Ummels were an elderly out-of-town couple, looking for residential property to purchase in the San Diego County area.
them. (FAC, 18-17.) The Ummels employed Michael Little (Agent Little), an employee of mortgage broker Defendant
Horizon. (FAC, 4, 14.) Agent Little was also an employee of real estate broker Last Dance Inc. aka REMAX (Remax.)
(FAC 9.)
During the course of his relationship with the Ummels, Agent Little acted as both an authorized agent for Defendant
Horizon and for Last Dance, Inc. aka REMAX (Remax), and Defendant Horizon took no action to prevent Agent Littles
dual role. (FAC, 35.) Through Defendant Horizon, Agent Little was to arrange a loan for the purchase of the Ummels
prospective San Diego home purchase, and Agent Little and the Ummels came to an agreement in this regard. (FAC 14.)
On or about May 29, 2005, the Ummels entered escrow for 1657 Amante Court, Carlsbad, CA (Amante Property.) (FAC,
24.) During the escrow period, the Ummels requested Agent Little, the authorized agent of Defendant Horizon, to arrange
the appraisal of the Amante Property. (FAC, 27.) Agent Little, the authorized agent of Defendant Horizon, acting as agent
245
of the Ummels, retained the services of appraiser John Contento, SRO, on behal of the Ummels. (FAC, 28.) On or about
July 21, before the close of escrow, Agent Little, the authorized agent of Defendant Horizon, informed the Ummels that the
appraisal had been completed. (FAC, 29.) However, unbeknownst to the Ummels, the appraisal misrepresentec that the
Amante Property was worth $1,200,000 when the true appraised value of the Amante Property was only $1,050,000.00.
(FAC, 41-44.) In reliance on the misrepresentations in the appraisal, made individually and in concert with Agent Little by
and on behalf of Defendant Horizon and Remax, the Ummels were induced to and did close escrow and purchase the
Amante Property for the inflated price of $1,200,000. (FAC 131, 35, 45.)
To compound Defendant Horizons liability, Agent Little, as authorized agent of Defendant Horizon, withheld the copy of
the appraisal report from the Ummels until after the close of escrow. (FAC, 27-32.) The appraisal was withheld from the
Ummels, despite their repeated requests to Agent Little, the authorized agent of Defendant Horizon, to deliver a copy of the
appraisal to them. (FAC, 27-32.) As stated, Defendant Horizon was responsible for arranging the loan for the Ummels to
purchase the Amante Property. (FAC, 14.) Incumbent in Defendant Horizons responsibility was, among other tilings, to
make sure that the appraisal on the Amante Property was timely delivered to the Ummels. (See FAC generally.)
As shown below, this Court should overrule Defendant Horizons demurrer because the Ummels have adequately pled facts
sufficient to support all of the causes of action discussed herein. Defendant Horizon has not advanced any relevant legal
authority that would preclude the Ummels from pursuing any (and certainly not all) of the causes of action alleged in the
FAC. In the alternative, should this Court grant Defendant Horizons demurrer, in whole or part, it should grant the Ummels
leave to amend in the interests of justice. The Ummels should have an opportunity to present their claims and such leave to
amend would not prejudice Defendant Horizon.
II.
DEFENDANT HORIZON OVERHEADS THE APPLICABILITY OF CALIFORNIA BUSINESS & PROFESSION
11423.
Defendant Horizon relies heavily on Cal. Bus. & Prof. 11423, claiming that the Ummels fail to state any of the causes of
action asserted in the FAC against Defendant Horizon. (Demurrer, p.3.) Defendants analysis is fundamentally flawed for
three main reasons: (1) the Ummels did not attempt to allege breach of 114231 as a cause of action in the FAC; (2) 11423
does not apply because Defendant Horizon is not a lender; and (3) if this Court should find otherwise, then strict compliance
with 11423 does not absolve Defendant Horizon from all conceived forms of liability such as the tort causes of action
alleged in the FAC.
1
All statutory references are to the Business and Professions Code unless indicated otherwise.
Initially, the Ummels have not alleged the breach of 11423 as a cause of action against Defendant Horizon. If they did, then
perhaps Defendant Horizons discussion of 11423 may be germane. However, the Ummels have not made any such
allegations. As such, 11423 has no bearing in the instant tort action against Defendant Horizon.
Second, 11423 speaks to affirmative duties imposed on lenders, not mortgage brokers. Defendant Horizon is a mortgage
broker, and the Ummels are suing Defendant Horizon in its capacity as a mortgage broker. A mortgage broker is a person or
entity that arranges financing between borrowers and lenders. A lender is a person or entity from which something is
borrowed.2 There is a fundamental difference between the two. Defendant Horizon apparently over-reads 11423 and equates
a mortgage broker with a lender, or misreads the FAC assuming the Ummels are suing Defendant Horizon in the capacity of
lender. Section 11423(b) and (c state:
2
Blacks Law Dictionary 7th ed.
246
(b) A lender in a loan transaction secured by real property shall provide notice as described in this section to a loan applicant
of the applicants right to receive a copy of the appraisal, provided he or she has paid for the appraisal. An applicants written
request for a copy of an appraisal must be received by the lender no later than 90 days after (1) the lender has provided notice
of the action taken on the application, including a notice of incompleteness, or (2) the application has been withdrawn.
(Emphasis Added.)
(c) The lender shall mail or deliver a copy of an appraisal within 15 days after receiving a written request from the applicant,
or within 15 days after receiving the appraisal, whichever occurs later. (Emphasis Added.)
Defendant Horizon is not a lender and is not being sued as such. Section 11423 is no bar to this tort action against Defendant
Horizon.
Lastly, even if 11423 did apply to Defendant Horizon, then whether or not there was strict statutory compliance with
11423 is irrelevant as to the tort causes of action alleged in the FAC. As such, whether a written request was made or not is
irrelevant to this action. The FAC alleges fraud (1st COA), fraudulent concealment (2nd COA), breach of the covenant of
good faith and fair dealing (3rd COA), negligence (4th COA), negligent misrepresentation (5th COA) constructive trust (6th
COA), and breach of fiduciary duty (7th COA) against Defendant Horizon All of the elements of these causes of action were
alleged, and Defendant Horizon advances no legal authority to support its position that compliance with one statute could
preclude the public from suing it in tort for any malfeasance in connection with a real estate appraisal.
The Ummels allegations make it clear that Defendant Horizons conduct was a substantial factor in causing the damage the
Ummels suffered. Its coincidental compliance with a statute does not render it immune for all other torts committed in
connection with an appraisal.
III.
THE APPRAISAL WAS COMPLETED PRIOR TO THE CLOSE OF ESCROW AND WAS WITHIN THE
CUSTODY AND CONTROL OF DEFENDANT HORIZON.
Defendant Horizon contends that it can bear no liability because the Ummels relied on Agent Little (working as a real estate
agent for Remax) in deciding to purchase the Amante Property and because the appraisal was completed after the Ummels
obligated themselves to purchase the properly at that price. (Demurrer, p. 4.) The allegations contradict this.
As pled, the appraisal was completed before the close of escrow on the Amante Property. (FAC, 29.) As such, the Ummels
could not possibly have obligated themselves to purchase the Amante Property at $1,200,000 before the appraisal was
completed because they still could have cancelled escrow at this point. The fact of the matter is that Defendant Horizon had
possession of the appraisal, and it refused to deliver the appraisal to the Ummels despite several requests from the Ummels
for the appraisal, and despite the fact mat the Ummels specifically requested that they wanted to see the appraisal to confirm
the value of the Amante Property. (FAC, 27-32.)
IV.
THE FAC ALLEGES THAT AGENT LITTLE MADE ALL THE REPRESENTATIONS WHILE ACTING
WITHIN THE COURSE OF HIS AGENCY AND AUTHORITY FOR DEFENDANT HORIZON.
Defendant Horizon appears to argue the FAC does not identify whether Agent Little was working within the scope of his
agency with Remax or with Horizon at the time that the Ummels were requesting a copy of the appraisal. (Demurrer, p.6.)
This is also not accurate. The FAC clearly states that Agent Little is the authorized agent of defendants Remax and Horizon,
and at the time of making the representations herein alleged and at all times herein mentioned, was acting within the course
and the scope of his respective agency and authority for defendants Remax and Horizon. (Emphasis Added.) (FAC, 35.)
247
Further, the FAC alleges that the Ummels and Agent Little, on behalf of Defendant Horizon, came to a verbal agreement to
represent the Ummels shortly after the Ummels and Agent Little, on behalf of Remax, came to a verbal agreement on April 2,
2005. (FAC 14.) Agent Little served in a dual capacity during the course of his relationship with the Ummels, and the
Ummels alleged it as such.
V.
DEFENDANT HORIZON CANNOT CHALLENGE THE PLEADINGS BECAUSE OF AMBIGUITY IN A
GENERAL DEMURRER.
Although not entirely clear from its demurrer, Defendant Horizon also appears to claim the Ummels allegations are
ambiguous. (Demurrer, p. 6.) To the extent mat Defendant Horizon makes this claim, it is not well taken in a general
demurrer, which is what Defendant Horizon has filed with this Court. As stated by the court in Johnson v. Mead (1987) 191
CA3d 156, 160, [o]bjections that a complaint is ambiguous or uncertain, or that essential facts only appear inferentialiy, or
as conclusions of law, or by way of recitals, must be raised by special demurrer, and cannot be reached by general demurrer.
Accordingly, since Defendant Horizon has filed a general demurrer with the Court, any claim that the FACs causes of action
should tail because of ambiguity must be overruled.
VI.
DEFENDANT HORIZON CANNOT SUPPLEMENT HIS DEMURRER BY INCORPORATING THE
ARGUMENTS MADE BY THE OTHER DEFENDANTS IN ITS DEMURRER.
Defendant Horizon requests that the memorandum of points and authorities in support of the demurrers filed by the other
defendants be incorporated as supplemental argument in support of [Defendant Horizons] demurrer. (Demurrer, p. 7.) The
Court should not consider these supplemental arguments for two reasons.
First, there is no legal mechanism to incorporate arguments made in other litigants demurrers by reference. A timely joinder
is required, and must be filed as served with the same statutory notice required for the underlying demurrer. (See Lerma v.
County of Orange (2004) 120 Cal.App.4th 709, 718-719, citing Frazee v. Seely (2002) 95 Cal.App.4th 627 at pp. 636-63.)
Defendant Horizon never filed a timely joinder.
Second, even if Defendant Horizon had filed a timely joinder filed, it still would have been improper because the net effect of
incorporating the other two defendants memorandum of points and authorities would have been to make the Defendant
Horizons memorandum of points and authorities far in excess of the maximum 15 page limit. CRC 313(d), (e).
If for some reason the Court does allow Defendant Horizon to incorporate and supplement its arguments in the demurrer,
then the Ummels ask that this Opposition also be supplemented with the opposing arguments set forth in the respective
oppositions against the other defendants to this action.
VI.
THE UMMELS PROPERLY ALLEGE BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING (3rd COA).
Defendant Horizon claims that the Ummels have not properly alleged a breach of the implied covenant of good faith and fair
dealing cause of action because, according to Defendant Horizon, the Ummels failed to allege a breach of any duty arising
248
under any contract with Defendant LITTLE as a mortgage loan broker working for Defendant [Horizon), his superior, in
brokering the loan. (Demurrer, pp. 7-8.) Secondly, although somewhat convoluted, Defendant Horizon seems to argue that
the Ummels did not have an agreement with Defendant Horizon. (Demurrer, p.8.)
A plain reading of the FAC can dispose of both arguments, so Defendant Horizon may have simply overlooked these
allegations in the FAC. First, 62 of the FAC clearly alleges that Defendants...Horizon...breached said implied covenant of
good faith and fair dealing... of the agreement between the Ummels and Defendant Horizon. Secondly, the FAC
unequivocally alleges an agreement between Defendant Horizon and the Ummels on two occasions. (FAC, 14, 61).
Specifically, 14 of the FAC provides, Agent Little, on behalf of Horizon came to a verbal agreement with the Ummels to
represent the Ummels in the capacity of a real estate broker and agent in the arrangement of the Ummels loan for the
purchase of a property in San Diego. (Emphasis Added.) Additionally, 61 of the FAC alludes to an aforementioned
agreement between Defendant Horizon and the Ummels.
VII.
THE UMMELS PLED A CONSTRUCTIVE FRAUD AS OPPOSED TO A CQNTRUCTIVE TRUST CAUSE OF
ACTION (6th COA) AND RESPECTFULLY REQUEST LEAVE TO AMEND.
The Ununels inadvertently misalleged a constructive trust cause of action as opposed to a constractive fraud cause of action.
This can be corrected by amendment. (Cal. Code Civ. Proc. 473.) The essential elements in a constructive fraud cause of
action are as follows: (1) fiduciary or confidential relationship, (2) breach of that duty, (3) advantage gained, (4) justifiable
reliance, (5) causation, and (6) damages. (Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365, 373 (1975);
Salahutdin v. Valley of Cal., Inc. 24 Cal. App. 4th 555, 562 (1994); Demetris v. Demetris, 125 Cal. App. 2d 440, 444 (1954);
Odorizzi v. Bloomfield Sch. Dist., 246 Cal. App. 2d 123, 129 (1966); Tyler v. Childrens Home Socy of Cal., 29 App. 4th
511, 549.) In the FAC, the Ummels properly allege each of the aforementioned elements for a constructive fraud cause of
action. (FAC, 75-79.)
Denying leave to amend is an abuse of discretion where there is any reasonable possibility mat the plaintiff can state a valid
cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Ummels can state a valid cause of action by
replacing trust with fraud. Accordingly, this Court should grant the Ummels leave to amend the FAC accordingly.
III.
IN THE ALTERNATIVE. LEAVE TO AMEND SHOULD BE GRANTED TO THE UMMELS IN THE INTEREST
OF JUSTICE.
amend his pleading so that he may properly present his case. (Id.)
Although Defendant Horizons demurrer routinely makes blanket arguments that the demurrer should be sustained and the
Ummels should not be provided leave to amend, Defendan Horizon fails to assert any justification for denying the Ummels
such right. Defendant Horizon likewise fails to assert any justification that granting the Ummels leave to amend would
prejudice Defendant Horizon in any way. If this Court determines that the Ummels pleadings are in some manner deficient,
then it is respectfully requested that this Court grant the Ummels leave to amend accordingly in order to preserve its causes of
actions against Defendant Horizon.
249
IX.
CONCLUSION
For the foregoing reasons, the Ummels respectfully request that this Honorable Court overrule Defendant Horizons
demurrer, except as to the Sixth Cause of Action, whereby the Ummels respectfully request this Court for leave to amend. In
the event that this Court is inclined to sustain any portion of Defendant Horizons demurrer, the Ummels respectfully request
that this Court grant the Ummels leave to amend the FAC accordingly.
ARON & HOGUE
By: <<signature>>
JEFFREY L. HOGUE, ESQ.
End of Document
250
Plaintiffs Opposition to Defendant Contentos Demurrer to

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Comment:

San Diego County
v.
No. GIN 054 088.
October 5, 2006.
Plaintiffs Opposition to Defendant Contentos Demurrer to Plaintiffs First Amended Complaint
Time: 1:30 p.m.
Dept: 31
Authorities in support of their Opposition to Defendant John Contento SROs (Defendant Contento) demurrer to Plaintiffs
First Amended Complaint (FAC).
I.
The Ummels were an elderly out-of-town couple, looking for residential property to purchase in the San Diego County area.
them. (FAC, 8-17.) The Ummels employed Michael Little (Agent Little), an employee of mortgage broker Coats
Enterprises, Inc. aka Horizon Pacific Financial (Horizon.) (FAC, 4, 14.) Agent Little was also an employee of real estate
broker Last Dance, Inc. aka REMAX (Remax.) (FAC, 9.) During the course of his relationship with the Ummels, Agent
Little acted as both an authorized agent for Horizon and for Remax. (FAC, 35.)
On or about May 29, 2005, the Ummels entered escrow for 1657 Amante Court, Carlsbad, CA (Amante Property.) (FAC,
24.) During the escrow period, the Ummels requested Agent Little to arrange the appraisal of the Amante Property. (FAC,
27.) Agent Little, acting as agent of the Ummels, retained the services of appraiser, Defendant Contento, on behalf of the
Ummels. (FAC, 28.) Defendant Contento understood that the Ummels wanted to review the appraisal for purposes of
confirming the value of the Amante Property. (FAC, 28.) On or about July 21, before the close of escrow, Agent Little
informed the Ummels that Defendant Contentos appraisal had been completed. (FAC, 29.) However, unbeknownst to the
Ummels, Defendant Contento misrepresented that the Amante Property was worth $1,200,000 when he knew or should
252
have known the true appraised value of the Amante Property was only $1,050,000. (FAC, 41-44.) In reliance on
Defendant Contentos misrepresentations in the appraisal, made individually and in concert with Agent Little by and on
behalf of Horizon and Remax, the Ummels were induced to and did close escrow and purchase the Amante Property for the
inflated price of $1,200,000. (FAC, 31.)
As shown below, this Court should overrule Defendant Contentos demurrer because plaintiffs have pled facts sufficient to
support fraud (1st COA), negligent misrepresentation (5th COA), and negligence (4th COA) against him in their FAC. In the
alternative, should this Court grant Defendant Contentos demurrer, in whole or part, it should grant the Ummels leave to
amend in the interests of justice. The Ummels should have an opportunity to present their claims and such leave to amend
would not prejudice Defendant Contento.
II.
THE UMMELS HAVE ADEQUATELY ALLEGED FRAUD (1st COA).
Defendant Contento claims that the Ummels First Cause of Action for Fraud and the Fifth Cause of Action for Negligent
Misrepresentation fail to plead facts with sufficient particularity, (Demurrer, p.5.) While it is true that one who pleads fraud
needs to allege facts rather than general conclusions, a court should not look suspiciously at the complaint or seek to absolve
the defendant from liability on the highly technical requirements of form in pleadings. (5 Witkin, California Procedure 670
(4th ed. 1997).) Pleading facts in ordinary and concise language is permissible in fraud cases as in any other, and liberal
constriction of the pleading is much a duty of the court in these as in other cases. (Id.) Also, the requirement of particularity
in pleading fraud should not be overdone. Complaints must be kept to a reasonable length. If they are too detailed (e.g.
setting forth each statement verbatim, specifying the time, place and medium by which made), they may provide less
effective notice and be less useful in framing the issues, man would a shorter, more generalized version. (Comm. on
Childrens Television Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-214.)
As Defendant Contento alleges, the elements of fraud are: (1) a false representation 01 concealed material fact, (2) that the
defendant knew was false or did not have sufficient knowledge to warrant the representation, (3) with the intent to induce the
Plaintiffs to act on the false representation or concealed material fact, (4) that plaintiff relied upon, (5) to plaintiffs damage.
(Reed v. King (1983) 145 Cal.App.3d 261, 264.)
Turning to the allegations, the Ummels FAC specifically outlines what the representations were (that the Amante Property
was worth $1,050,000 when the appraisal claimed it was worth $1,200,000 (FAC, 44)), who they were made by (Defendant
Contento (FAC, 41)), the circumstances surrounding the representations (during the escrow period for the Amante Property
(FAC, 27-28)), and the alleged purposes for which the misrepresentations were made (in order to induce the Ummels to
purchase the Amante Property (FAC, 45).) The FAC provides adequate more than adequate detail and specificity.
Consequently, Defendant Contentos demurrer on this issue should be overruled.
III.
THE UMMELS RELIED ON DEFENDANT CONTENTOS APPRAISAL.
Defendant Contento argues that because the Ummels did not directly communicate with him or see the paper appraisal they
could not have relied on any of the information in that report to purchase the [Amante] property. (Demurrer, p. 4.)
Defendant Contento acting through Agent Little knowingly communicated the fraudulent contents of the appraisal to the
Ummels. (FAC, 129.) Both were agents of and owed a duty to the Ummels. Thus, it is immaterial whether the Ummels
received a copy of the appraisal or spoke to Defendant Contento personally because they relied on his appraisal nevertheless.
As alleged in the FAC, the Ummels and Agent Little had a discussion concerning Defendant Contentos appraisal well before
the close of escrow on or about July 21. (FAC, 29.)
253
A plain reading of the FAC clearly shows that the Plaintiffs have properly alleged that they relied on the misrepresentations
by Defendant Contento. Paragraph 45 of the FAC specifically states [i]n reliance on [Contentos] representations, plaintiffs
were induced to, and did, pay $1,200,000.00 for the Amante Property. The allegations established the Ummels reliance on
Defendant Contentos misrepresentations; that there was no face-to-face meeting is irrelevant. Consequently, the Ummels
have alleged facts sufficient to state a cause of action for fraud. It follows that Defendant Contentos demurrer should be
overruled.
IV.
THE UMMELS PROPERLY ALLEGED NEGLIGENT MISREPRESENTATION (5th COA).
Unlike fraud, negligent misrepresentation does not require allegations of actual knowledge of the falsity of the alleged
fraudulent representation, but merely facts showing the representation was made without reasonable grounds for believing it
to be true. (5 Witkin, California Procedure 683 (4th ed. 1997).) Those facts were pled. Paragraph 70 of the FAC clearly
states that [Contento] made said representations without any reasonable ground for believing it to be true and in a manner
not warranted by each defendants information. Further, the FAC incorporates by reference the specific allegations made in
the cause of action for fraud against Defendant Contento. (FAC, 68.) It follows that the Ummels have sufficiently stated
facts to constitute a cause of action for negligent misrepresentation (5th COA), in addition to fraud (1st COA).
V.
DEFENDANT CONTENTO OWED A DUTY TO THE UMMELS AS THEIR AGENT TO CONDUCT THE
APPRAISAL IN A NON-TORTIOUS MANNER.
Defendant Contento argues that without a contract, he has no liability to the Ummels. (Demurrer, p. 4.) Defendant Contento
was an agent of the Ummels, specifically hired by Agent Little to conduct an appraisal on the Ummels behalves. (FAC,
128.) That Defendant Contento did not directly contract with the Ummels does not destroy their ability to sue him in tort
for his malfeasance. Once Defendant Contento undertook to act on the Ummels behalves, he owed them a duty to do so in a
non-tortious manner -- whether he contracted with them or not.
Plaintiffs have pled fraud (1st COA), negligence (4th COA), and negligent misrepresentation (5th COA) causes of action
against Defendant Contento - not one of which requires a contract to give rise to a duty in tort. It should be noted that
Defendant Contento offers no legal authority supporting his claim to the contrary.
VI.
THE UMMELS PROPERLY ALLEGED NEGLIGENCE (4TH COA.)
A cause of action for negligence requires the following elements to be alleged: (1) duty to Plaintiffs; (2) breach; (3)
causation; and (4) damages. (Freidman v. Merce & Co. (2003) 131 Cal.Rptr.2d 885, 890.) Negligence can be pleaded
generally, without specifying the particular breach or the particular manner in which the injury occurred. There is no need to
require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should
be required in a pleading. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.4th 592, 608.)
The FAC specifically states that Defendant Contento owed the Ummels a duty to exercise skill ordinary exercised by
reputable members of the profession practicing in the same or similar circumstances in the performance of their respective
duties so as to prevent injury to the Ummels. (FAC, 65.) In his demurrer, Defendant Contento contends that the Ummels
254
cannot prove mat Defendant Contento owed any duty to the Ummels. (Demurrer, p.8.) What Defendant Contento apparently
fails to recognize is that the question of the Ummels ability to prove their allegations, or possible difficulties in making such
proof, is of no concern in ruling on a demurrer. (Comm. on Childrens Television, Inc. (1983) 35 Cal.3d 1987, 213-214
(Emphasis Added.).) It follows that the FAC has properly pled a cause of action for negligence (4th COA); therefore,
Defendants Contentos demurrer on these grounds must be overruled.
VII.
IF THE COURT SUSTAINS ANY PART OF DEFENDANT CONTENTOS DEMURRER LEAVE TO AMEND
SHOULD BE GRANTED TO THE UMMELS.
amend bis pleading so that he may properly present his case. (Id.) Although Defendant Contentos demurrer routinely makes
blanket arguments that the demurrer should be sustained and the Ummels should not be provided leave to amend, Defendant
Contento fails to assert any justification for denying the Ummels such right. Defendant Contento further fails to assert any
justification that supports the notion that granting the Ummels leave to amend would prejudice Defendant Contento in any
way. If this Court determines that the Ummels pleadings against Defendant Contento are in some manner deficient, then it is
respectfully requested that this Court grant the Ummels leave to amend in order to preserve their causes of actions against
Defendant Contento.
VIII.
CONCLUSION
For the foregoing reasons, the Ummels respectfully request that this Honorable Court overrule Defendant Contentos
demurrer. In the event that this Court is inclined to sustain any portion of Defendant Contentos demurrer, the Ummels
respectfully request that this Court grant plaintiffs leave to amend the FAC accordingly.
ARON & HOGUE
By: <<signature>>
End of Document
255
Plaintiffs Opposition to Defendant Remaxs and Defendant Agent

Littles Jointly Filed Motion to Strike Punitive Damages in Plaintiffs
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Comment:

San Diego County
v.
No. GIN 054 088.
October 5, 2006.
Plaintiffs Opposition to Defendant Remaxs and Defendant Agent Littles Jointly Filed Motion to Strike Punitive
Damages in Plaintiffs First Amended Complaint
Time: 1:30 p.m.
Dept: 31
Authorities in support of their Opposition to Defendant Last Dance, Inc.s aka RE/MAX (Defendant Remax) and Michael
Littles (Defendant Agent Little) jointly filed Motion to Strike Plaintiffs Claim For Attorneys Fees and Exemplary and
Punitive Damages to Plaintiffs First Amended Complaint (FAC.)
I.
The FAC is replete with allegations of fraud as against Defendant Remax and Defendan Agent Little. The FAC alleges fraud
(1st COA), fraudulent concealment (2nd COA), breach of the implied covenant of good faith and fair dealing (3rd COA),
negligence (4th COA), negligent misrepresentation (5th COA), constructive trust (6th COA), and breach of fiduciary duty
(7th COA). The FAC requests an award of exemplary and punitive damages from the defendants as to all of the causes of
action, except negligence (4th COA) and negligent misrepresentation (5th COA).
The Ummels entered into an agreement directly with Defendant Agent Little by on behalf of Defendant Remax. (FAC, 14.)
As such, the Ummels have also requested attorneys fees as to all causes of action.
Defendant Remax and Defendant Agent Little demand the Court to strike the Ummels punitive damage requests from the
prayer in each and every one of the causes of action alleged in the FAC. (Motion to Strike, p. 2.) Defendant Remax and
Defendant Agent Little likewise demand the Court to strike the Ummels request for attorneys fees in every one of the
257
causes of action alleged in the FAC. (Motion to Strike, p. 2.) Notwithstanding the defendants demands, the Ummels have
properly alleged punitive damages and attorneys fees as against both Defendant Remax and Defendant Agent Little for the
reasons set forth below.
II.
THE COURT SHOULD NOT CONSIDER DEFENDANTS DEMURRER BECAUSE ITS SERVICE ON THE
UMMELS WAS DEFECTIVE.
Cal. Civ. Proc. 1013(e) provides, [s]ervice by facsimile transmission is permitted only where the parties agree and a
written confirmation of that agreement is made. (Emphasis Added.) Defendant Remax and Defendant Agent Little served
their motion to strike via a facsimile dated September 15, 2006. The Ummels never received any other copy of the
defendants motion to strike. The Ummels have requested a copy of the defendants proof of service, but have not received
one to date.
The Ummels never agreed with Defendant Remax, nor Defendant Agent Little, to accept facsimile service. The Ummels
were never asked. Additionally, the Ummels never received any written confirmation demonstrating that said defendants
thought it was acceptable to serve the Ummels via facsimile. Accordingly, defendants* motion to strike is not properly before
the Court; therefore, it should not be heard, nor considered by this Court.
Without waiving the foregoing, if the Court is inclined to consider Defendant Remaxs and Defendant Littles motion to
strike, the Ummels present the following arguments in opposition.
III.
POLICY TO CONSTRUE PLEADINGS LIBERALLY.
Motions to strike are disfavored. The policy of the law is to construe the pleadings liberally...with a view to substantial
justice. (WEIL & BROWN, 7:197 citing Cat. Civ. Proc. 451.) In ruling on a motion to strike, judges should assume the
truth of allegations in the pleadings, (Clauson v. Sup. Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)
III.
THE UMMELS PUNITIVE DAMAGE CLAIMS SHOULD NOT BE STRICKEN.
In an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishment. (Cal. Civ. Code 3294 (a) (Emphasis Added.).) Under this
statute, the words oppression, fraud, or malice are used in the disjunctive. Thus, fraud alone is an Consequently, the
Ummels have properly requested punitive damages as to their breach of the implied covenant of good faith and fair dealing.
D. The Ummels claim for punitive damages as to constructive fraud (6th COA) should not be stricken.
The Ummels inadvertently titled their constructive fraud cause of action, constructive trust. As such, the Ummels will
show why punitive damages are appropriate for a constructive fraud cause of action as opposed to a constructive trust cause
of action.
258
The Ummels properly alleged a constructive fraud cause of action against Defendant Remax and Defendant Agent Little.
(FAC, 75-79.) A constructive fraud cause of action supports an award of punitive damages. (Stokes v. Henson (1990) 217
Cal. App. 3d 187, 197-198.) Consequently, the Ummels have properly requested punitive damages as to their constructive
fraud cause of action.
E. The Ummels claim for punitive damages as to breach of fiduciary duty (7th COA) should not be stricken.
The Ummels properly allege a breach of fiduciary duty cause of action against Defendant Remax and Defendant Agent Little.
(FAC, 80-83.) The FAC incorporates by reference both the fraud and the fraudulent concealment causes of action. (FAC,
80.) As such, defendants breached their fiduciary duty by, among other ways, fraudulently misrepresenting and concealing
material facts from the Ummels. Consequently, the Ummels have properly requested punitive damages as to their breach of
fiduciary duty cause of action.
IV.
THE UMMELS REQUEST FOR ATTORNEYS FEES SHOULD NOT BE STRICKEN.
Defendants argue that the Ummels request for attorneys fees should be stricken because the only contract referenced is that
agreement between the Ummels and the original owners of 1657 Amante Court. (Motion to Strike, p.2.) Defendant Remax
and Defendant Agent Little further argue that because they are not parlies to the contract involved in the instant case that
there can be no contractual basis for the Ummels to claim attorneys fees from them. (Motion to Strike, p. 3.)
Contrary to the defendants claim, there are actually three contracts alleged in the FAC -- not one. One of these agreements is
between the Ummels and Defendant Remax and Defendant Agent Little. (FAC, 14.) The FAC clearly alleges [o]n or about
April 2, 2005, on behalf of Remax, Agent Little came to a verbal agreement with the Ummels to represent the Ummels in the
capacity of a real estate broker and agent... (Emphasis Added.) (FAC, 14.) Implied in that agreement was that the
prevailing party would be entitled to attorneys fees for any action arising out of that agreement.
Parties may recover attorneys fees from an implied contract pursuant to Cal. Civ. Proc. 1021. Section 1021 sets forth:
Expept as attorneys fees are specifically provided for by statute, the measure and mode of Compensation
of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties
to actions or proceedings are entitled to their costs, as heiteinafter provided. (Emphasis Added.)
Accordingly, the Ummels claims for attorneys fees should not be stricken.
V.
CONCLUSION.
For the foregoing reasons, the Ummels respectfully request that this Honorable Court overrule Defendant Remaxs and
Defendant Agent Littles jointly filed Motion to Strike. In the event that this Court is inclined to sustain defendants Motion
to Strike, the Ummels respectfully request that this Court grant the Ummels leave to amend the FAC accordingly.
ARON & HOGUE
259
By: <<signature>>
End of Document
260
Plaintiffs Opposition to Defendant Horizons Motion to Strike

Punitive Damages in Plaintiffs First Amended Complaint
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1111
Comment:

San Diego County
v.
No. GIN 054 088.
October 5, 2006.
Plaintiffs Opposition to Defendant Horizons Motion to Strike Punitive Damages in Plaintiffs First Amended
Complaint
Time: 1:30 p.m.
Authorities in support of their Opposition to Defendant Coats Enterprise, Inc.s aka Horizon Pacific Financial (Defendant
Horizon) Motion to Strike Plaintiffs Claims For Attorneys Fees and Exemplary Damages in Plaintiffs First Amended
Complaint (FAC)
I.
The FAC is replete with allegations of fraud as against Defendant Horizon. The FAC alleges fraud (1st COA), fraudulent
concealment (2nd COA), breach of the implied covenant of good faith and fear dealing (3rd COA), negligence (4th COA),
negligent misrepresentation (5th COA), constructive trust (6th COA), and breach of fiduciary duty (7th COA). The FAC
requests an award of exemplary and punitive damages from Defendant Horizon as to all of the causes of action, except
negligence (4th COA) and negligent misrepresentation (5th COA).
The Ummels entered into an agreement directly with Defendant Horizon. (FAC, 14.) As such, the Ummels have also
requested attorneys fees as to all causes of action.
Defendant Horizon demands the Court to strike the Ummels punitive damage requests from the prayer in each and every one
of the causes of action alleged in the FAC. (Motion to Strike, p. 2.) Defendant Horizon likewise demands the Court to strike
the Ummels request for attorneys fees in every one of the causes of action alleged in the FAC. (Motion to Strike, p. 2.)
262
Notwithstanding the Defendant Horizons demand, the Ummels have properly alleged punitive damages and attorneys fees as
against Defendant Horizon for the reasons set forth below.
II.
justice. (WEIL & BROWN, 7:197 citing Cal. Civ. Proc. 451.) In ruling on a motion to strike, judges should assume the
truth of allegations in the pleadings. (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)
III.
THE UMMELS PUNITIVE DAMAGE CLAIMS SHOULD NOT BE STRICKEN.
statute, the words oppression, fraud, or malice are used in the disjunctive. Thus, fraud alone is an adequate basis for
awarding punitive damages. (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231.)
Courts are increasingly liberal as to what constitutes sufficient fact-pleading on a claim for punitive damages. The
complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as
to the defendants wrongful conduct (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7.)
A. The Ummels claim for punitive damages as to fraud (1st COA) should not be stricken.
The Ummels properly allege a fraud cause of action as against Defendant Horizon. (FAC, 34-48.) As such, the Ummels
properly request punitive damages as to their fraud cause of action.
B. The Ummels claim for punitive damages as to the fraudulent concealment (2nd COA) should not be stricken.
The Ummels properly allege a fraudulent concealment cause of action against Defendant Horizon. (FAC, 49-59.)
Intentional concealment of material fact provides an evidentiary basis upon which punitive damages may be awarded. (Cal.
Civ. Code 3294(b)(3).) As such, the Ummels properly request punitive damages as to their fraudulent concealment cause of
action.
C. The Ummels claim for punitive damages as to breach of the implied covenant of good faith and fair dealing (3rd COA)
should not be stricken.
The Ummels properly alleged a breach of the implied covenant of good faith and fair dealing cause of action against
Defendant Horizon. (FAC, 60-63.) The FAC incorporates by reference both the fraud and fraudulent concealment causes
of action into the breach of the implied covenant of good faith and fair dealing cause of action. (FAC, 60.) As such,
Defendant Horizon breached the implied covenant of good faith and fair dealing by, among other ways, fraudulently
misrepresenting and concealing material facts from the Ummels. Consequently, the Ummels properly request punitive
263
damages as to their breach of the implied covenant of good faith and fair dealing cause of action.
D. The Ummels claim for punitive damages as to constructive fraud (6th COA) should not be stricken.
The Ummels inadvertently titled their constructive fraud cause of action, constructive trust. As such, the Ummels will
show why punitive damages are appropriate for a constructive fraud cause of action as opposed to a constructive trust cause
of action.
The Ummels properly alleged a constructive fraud cause of action against Defendant Horizon. (FAC, 75-79.) A
constructive fraud cause of action supports an award of punitive damages. (Stokes v. Henson (1990) 217 Cal. App. 3d 187,
197-198.) Consequently, the Ummels properly request punitive damages as to their constructive fraud cause of action.
E. The Ummels claim for punitive damages as to breach of fiduciary duty (7th COA) should not be stricken.
The Ummels properly allege a breach of fiduciary duty cause of action against Defendant Horizon. (FAC, 80-83.) The FAC
incorporates by reference both the fraud and the fraudulent concealment causes of action. (FAC, 80.) As such, Defendant
Horizon breached its fiduciary duty by, among other ways, fraudulently misrepresenting and concealing material facts from
the Ummels. Consequently, the Ummels properly request punitive damages as to their breach of fiduciary duty cause of
action.
IV.
THE UMMELS REQUEST FOR ATTORNEYS FEES SHOULD NOT BE STRICKEN.
Defendant argues that the Ummels should not be able to claim attorneys fees because the Ummels failed to allege the
existence of a contract. (Motion to Strike, p.2.) The basis of Defendant Horizons argument is wholly erroneous. Contrary to
the defendants claim, there are actually three contracts alleged in the FAC - not one. One of these agreements is between the
Ummels and Defendant Horizon. (FAC, 14.) The FAC clearly alleges Agent Little, on behalf of Horizon, came to a verbal
agreement with the Ummels to represent the Ummels as a real estate broker and agent... (Emphasis Added.) (FAC, 14.)
Implied in that agreement was that the prevailing party would be entitled to attorneys fees for any legal proceeding arising
out of the agreement.
Parties may recover attorneys fees from an implied contract pursuant to Cal Civ. Proc. 1021. Section 1021 sets forth:
Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation
of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties
to actions or proceedings are entitled to their costs, as hereinafter provided. (Emphasis Added.)
Accordingly, the Ummels claims for attorneys fees should not be stricken.
V.
CONCLUSION.
For the foregoing reasons, Plaintiffs respectfully request that this Honorable Court overrule Defendant Horizons Motion to
Strike. In the event that this Court is inclined to sustain defendants Motion to Strike, the Ummels respectfully request that
264
this Court grant the Ummels leave to amend the FAC accordingly.
ARON & HOGUE
By: <<signature>>
End of Document
265
Plaintiffs Opposition to Defendant Contentos Motion to Strike

Punitive Damages in Plaintiffs First Amended Complaint
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San Diego County
v.
No. GIN 054 088.
October 5, 2006.
Plaintiffs Opposition to Defendant Contentos Motion to Strike Punitive Damages in Plaintiffs First Amended
Complaint
Complaint Filed: July 19; 2006
Time: 1:30 p.m.
Dept: 31
Authorities in support of their Opposition to Defendant John Contento, SROs (Defendant Contento) Motion to Strike
Punitive Damages to Plaintiffs First Amended Complaint (FAC.)
I.
The FAC is replete with allegations of fraud as against Defendant Contento. The FAC alleges fraud (1st COA), negligence
(4th COA), and negligent misrepresentation (5th COA). The FAC requests an award of exemplary and punitive damages
from Defendant Contento as to the fraud cause of action.
Defendant Contento demands this Court to strike the Ummels punitive damage request from the fraud cause of action.
(Motion to Strike, pp. 4-5.) Notwithstanding defendants demand, the Ummels properly allege punitive damages as against
Defendant Contento for the reasons set form below.
II.
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justice. (WEIL & BROWN, 7:197 citing Cal. Civ. Proc. 451.) In ruling on a motion to strike, judges should assume the
truth of allegations in the pleadings. (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)
III.
THE UMMELS CLAIM FOR PUNITIVE DAMAGES AS TO FRAUD (1st COA) SHOULD NOT BE STRICKEN.
statute, the words oppression, fraud, or malice are used in the disjunctive. Thus, fraud alone is an adequate basis for
awarding punitive damages. (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231.)
Courts are increasingly liberal as to what constitutes sufficient fact-pleading on a claim for punitive damages. The
complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as
to the defendants wrongful conduct. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7.)
The Ummels properly allege a fraud cause of action against Defendant Contento. (FAC, 34-48.) As such, the Ummels
have properly requested punitive damages as to their fraud cause of action.
III.
CONCLUSION
For the foregoing reasons, the Ummels respectfully request that this Honorable Court overrule Defendant Contentos Motion
to Strike. In the event that the Court is inclined to sustain Defendant Contentos Motion to Strike, the Ummels respectfully
request that this Court grant the Ummels leave to amend the FAC accordingly.
ARON & HOGUE
By: <<signature>>
End of Document
268
Memorandum of Points and Authorities in Support of Demurrer by

Defendant Coats Enterprise to Plaintiffs First Amended Complaint
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San Diego County
v.
No. GIN 054088.
September 25, 2006.
Memorandum of Points and Authorities in Support of Demurrer by Defendant Coats Enterprise to Plaintiffs First
Amended Complaint
Joseph L. Stine, Attorney at Law, CA Bar No. 86544, Law Office of Joseph L. Stine, 380 South Melrose Drive, #306, Vista,
FILED: August 18, 2006
Dept.: 31
Time: 1:30 p.m.
Defendant COATS ENTERPRISE, INC. (COATS) submits this Memorandum of Points and Authorities in support of its
demurrer to the First Amended Complaint filed in the instant action.
I.
INTRODUCTION
Plaintiffs are the disgruntled buyers of a Carlsbad house purchased for $1.2 million last year during a heated real estate
market. Each of the defendants facilitated the purchase as either as a real estate agent, mortgage broker, or appraiser.
Plaintiffs would have this Court hold all of the defendants liable for Plaintiffs decision to accept an counteroffer and
complete the purchase at that price.
As to mortgage broker Defendant COATS, Plaintiffs focus on Defendant LITTLES alleged delay in providing Plaintiffs
with a copy of the Defendant CONTENTOS appraisal. This appraisal, attached to the complaint as Exhibit A, actually
supports the $1.2 million purchase price by concluding that $1.2 million was the propertys fair market value at that time.
Plaintiffs allege the appraisal as negligently and fraudulently prepared but do not suggest that Defendant COATS had any
involvement in its preparation or responsibility for its contents. Instead they suggest that Defendants COATS failure to have
the appraisal available for their review prior to close of escrow somehow caused them to make an ill advised purchase. These
270
allegations defy basic common sense and, for reasons to be shown, fail to meet the legal requirements for any potential
mortgage broker liability in responding to requests to examine property appraisals prepared for mortgage lenders.
Defendant MICHAEL LITTLE is alleged to have two separate and distinct roles in the transaction. He served as Plaintiffs
real estate agent working for Defendant LAST DANCE to assist in finding the house and negotiating its purchase. He served
as Plaintiffs mortgage broker securing a loan for the purchase working for moving Horizon Pacific Financial dba Defendant
COATS. (See First Amended Complaint, 2, 3, and 14.) Any potential liability of Defendant COATS would need to be
predicated on allegations that Defendant LITTLE took some action or was responsible from some omission while serving as
a loan broker and not as the agent in the agreement to purchase of the house,
Defendant COATS submits that it does not have liability for an alleged overpayment of the purchase price under any of the
seven causes of action as pled and that, as a matter of law, it can not be held liable under any conceivable amendment to these
causes of action. Accordingly, this moving defendant requests that the First Amended Complaint be dismissed without leave
to amend.
II.
DEFENDANT COATS CAN NOT BE HELD LIABLE BASED ON ITS LOAN AGENTS ALLEGED DELAY IN
PROVIDING PLAINTIFFS WITH A COPY OF AN APPRAISAL SUPPORTING THE PURCHASE PRICE OF THE
HOUSE.
A loan agent has certain statutorily defined duties in responding to requests from loan applicants to receive a copy of
appraisals prepared for use by lenders in connection with prospective home loans. Cal Bus. & Prof. Code 11423(b) provides
that the loan applicant is entitled to a copy of the loan on written request ... received by the lender... (emphasis added)
Subsection (c) sets forth the requisite deadline for lender responses to such written requests: The lender shall mail or deliver
a copy of an appraisal within 15 days after receiving the written request from the applicant, or within 15 days after receiving
the appraisal, whichever occurs later. (emphasis added)
A mortgage loan broker typically owes fiduciary duties to both the lender and borrower. (See, e.g., Barry v. Raskov (1991)
232 Cal. App. 3d 447, 455; Wyatt v. Union Mortgage Company (1983) 24 Cal. 3d 773, 782-783.)
Plaintiffs have pled a series of allegations, incorporated into all of their causes of actions, suggesting their frustration over the
timing of their receipt of a copy of the appraisal. They allegedly asked Defendant LITTLE for a copy of the appraisal on July
21 (First Amended Complaint 29), asked him again for it on July 25 (First Amended Complaint 30), and asked him a third
time for it on August 18 (First Amended Complaint 32.) Plaintiffs further allege that the appraisal was completed on July 20
(First Amended Complaint 29) and later admit that they allowed the escrow to close on the purchase of the property on July
29 (First Amended Complaint 31) before receiving a copy of the appraisal.
These allegations fail to match the statutory standards for production of a copy of a residential appraisal. There is nothing in
the pleading to suggest that the Plaintiffs made a written request for a copy of the appraisal so as to trigger the lenders duty
to deliver it to them. The pleading merely suggests that Plaintiffs made repeated verbal requests to receive a copy of it. (See
First Amended Complaint 29, 30, and 32) Under Subsection (c) of the statute, the lenders obligation to provide the
appraisal occurs at the later of 15 days after the lenders receipt of a written request for a copy of the appraisal or 15 days
after its actual receipt of appraisal. Here there is no allegation identifying the lender, indicating when it received the
appraisal, or that it received a written request from Plaintiffs for a copy of it. As such, even assuming that Defendant
COATS, acting through Defendant LITTLE as loan agent, received a copy of the completed appraisal on July 20 and is
considered the lender for the purposes of this statute, there can be liability for failing to provide Plaintiffs with a copy of it
without Plaintiffs written request and a delay thereafter exceeding the statutory deadline of 15 days.
Moreover, even if a copy of the appraisal had been delivered prior to the close of escrow, there can be no liability to
Defendant CONTENTO, as the appraiser, or derivatively to Defendant COATS, through his agent Defendant LITTLE, for
271
the appraisal itself. The appraisal, attached as Exhibit A to the First Amended Complaint, supports rather than calls into
question the payment of $1.2 million for the property as reflective of the propertys fair market value at that time. This
appraisal, unlike one setting the value at less than the purchase price, could not have been relied as a pre-closure red flag
warning of a prospective overpayment for the property.
Finally, even assuming arguendo that the appraisal was palpably flawed in its analysis as alleged, Plaintiffs could not have
reasonably relied on the appraisal in settling on the purchase price. Plaintiffs allege that they agreed on May 29 to accept the
sellers counter offer of $1.2 million and decided to complete the escrow shortly thereafter based on their reliance on
Defendant LITTLES representation as a real estate agent (i.e., working for Defendant LAST DANCE) that it was a good
value at that price. (First Amended Complaint 23, 24) The appraisal itself was presumably prepared weeks after Plaintiffs,
by their own allegations, had agreed and obligated themselves to purchase the property at that price. (As such, the facts, as
pled, strongly suggest that the appraisal was prepared at the behest of the lender to facilitate the loan application rather than
as a tool for Plaintiffs in deciding whether to pay $1.2 million for the property.)
For these reasons, neither the quality of the appraisal itself nor any delay in providing a copy of it to Plaintiffs can expose
Defendant COATS, as a principal for loan agent Defendant LITTLE, to any liability to Plaintiffs for allegedly paying too
much for the property.
III.
NONE OF THE SEVEN CAUSES OF ACTION IN THE FIRST AMENDED COMPLAINT SET FORTH
ESSENTIAL FACTS THAT WOULD SUPPORT LIABILITY AGAINST DEFENDANT COATS. AS A LOAN
BROKER, EVEN IF PLAINTIFFS PAID TOO MUCH FOR THE PROPERTY.
Looking at the causes of action individually, it is apparent that Plaintiffs have failed to allege facts from which this Court
could hold Defendant COATS, as a mortgage loan broker, liable for Plaintiffs decision to purchase the property for $1.2
million. Plaintiffs actions on are based on the following: 1) Defendant LITTLES alleged representations regarding the value
of the property while he was acting as real estate agent rather than as a loan broker; and 2) the alleged lack of quality of the
appraisal prepared by Defendant CONTENTO.
Plaintiffs distinguish Defendant LITTLEs role as a real estate agent from his role a loan agent. They allege that Agent
Little began soliciting their business in February 2005. (First Amended Complaint 9) They also allege that Agent Little
represented that he had superior expertise and sophistication in the San Diego County real estate market to that of another
real estate agent that they previously contacted. (First Amended Complaint 11) They further allege as follows:
On or about April 2, 2005, on behalf of Remax, Agent Little came to a verbal agreement with the Ummels to represent the
Ummels in the capacity of a real estate broker and agent in the Ummels prospective purchase of a property in San Diego
County. Sometime later, Agent Little, on behalf of Horizon, came to a verbal agreement with the Ummels to represent the
Ummels in the capacity of a real estate broker and agent in the arrangement of Ummels loan for the purchase of a property
in San Diego County. (emphasis added) (First Amended Complaint 14)
Plaintiffs proceed in their pleading with a series of allegations regarding Defendant LITTLEs service as a real estate agent
in helping them to find potentially suitable property and evaluate property values; these services culminated on May 29 in
their decision to accept a counteroffer of $1.2 million on the subject properly in reliance on their agents assessment of the
propertys market value. (First Amended Complaint 18-26). In all of these allegations, it is apparent that Plaintiffs are
making allegations against Defendant LITTLE in his capacity as a traditional real estate agent finding property for a
prospective purchaser. He did not assume his ancillary role as a loan agent until sometime after May 29 when an agreement
to purchase had been mutually executed and the sale was in escrow.
The common allegations pled by Plaintiffs strongly suggest, but do not clearly state, that Plaintiffs did not even begin to use
Defendant LITTLEs services as a loan agent until at least July 1. Paragraphs 27 through 32 contain a series of allegations
about the appraisal and Plaintiffs efforts to secure it through Defendant LITTLE. (Plaintiffs fail to identify whether
272
Defendant LITTLE was operating a real estate broker for Defendant REMAX or as a loan broker for Defendant COATS.)
Assuming arguendo that Defendant LITTLE was functioning as a loan agent in securing an appraisal to enable Plaintiffs to
obtain a purchase loan, his actions or inactions as a loan agent with regard to securing a copy of the appraisal had nothing
whatsoever to do with Plaintiffs* prior decision to accept a counteroffer of $1.2 million for the property. A deal had been
struck to pay the purchase price and was being implemented through escrow by the time Plaintiff began asking Defendant
LITTLE for copy of the appraisal.
These common allegations are incorporated as the underlying facts into all seven of Plaintiffs* causes of actions. They serve
as the factual foundation for the entire action yet are sometimes inconsistent with subsequent allegations contained in
separate causes of action themselves. For example, Paragraphs 37 through 39 contain a series of allegations about
representations that Defendant LITTLE made on behalf of defendants Remax and Horizon concerning the value of the
property. Yet the common allegations themselves make clear that his role as a loan agent (i.e., on behalf of HORIZON dba
COATS) did not occur until after he was retained as real estate agent (i.e., on behalf of ReMax) and presumably not until
Plaintiffs had agreed to the $1.2 million purchase price.
In sum, Defendant COATS, as a mortgage broker, can have no liability for anything that Defendant LITTLE may have
represented to the Plaintiffs as an agent working through Defendant LAST DANCE dba ReMAX retained to find a suitable
house for them nor for any issues arising out of the alleged culpability or negligence of Defendant CONTENTO, as an
independent appraiser, in the preparation of an appraisal for Plaintiffs lender.
IV.
PLAINTIFFS HAVE FAILED TO PLEAD THE REQUISITE ELEMENTS OF ANY OF THE ALLEGED CAUSES
OF ACTION.
This moving Defendant has reviewed the respective memorandum of points and authorities in support of demurrers filed by
the other defendants, finds them to be well taken, and requests their incorporation as supplemental argument in support of
this demurrer.
Rather than reiterate points and legal authorities made in those arguments, Defendant COATS raises an additional defense to
the Third Cause of Action. There Plaintiffs suggest that Defendant LITTLE, on behalf of both Defendants Remax and
Horizon, breached an implied covenant of good faith and fair dealing.
Witkin defines this covenant as follows: If the cooperation of the other party is necessary for successful performance of an
obligation, a promise to give that cooperation and not to do anything that prevents the realization of the fruits of performance
will often be implied. (1 Witkin, Summary of California Law, (10th ed., 2005) Contracts 798, p. 892)
Breaches of the covenant typically arise where one party to a contract violates a fiduciary duty or other confidence inherent in
that contractual relationship. (See, e.g., Foley v. U.S. Paving Co. (1968) 262 Cal. App. 2d 499; Matsen v. Horwitz (1951) 102
Cal App. 2d 884)
Here Plaintiffs have alleged nothing suggesting a breach of any duty arising under any contract with Defendant LITTLE as a
mortgage loan broker working for Defendant COATS, as his superior, in brokering the loan. The entire thrust of the action is
based on duties arising in connection with the negotiations over the purchase price for the subject property rather than
covenants, express or implied, arising out of the securing of the loan. In fact, Plaintiff makes no allegations whatsoever
complaining about the procurement or terms of the mortgage loan itself.
Once again, Plaintiffs confuse Defendant LITTLEs services under an alleged contract to act as a real estate agent in finding
suitable property for purchase from an alleged wholly separate and distinct contact to secure financing for the purchase. They
have mixed apples and oranges. There is nothing alleged in the pleading to suggest Defendant COATS liability through
Defendant LITTLEs ancillary contractual relationship serving Plaintiffs as a loan broker in securing the financing after they
had agreed to the purchase.
273
V.
CONCLUSION
The First Amended Complaint can not stand. It reflects the frustrations of buyers who purchased a house at or close to the
peak in the local real estate market who now seek to hold defendants liable for facilitating the purchase. It is Monday
morning quarterbacking at its worst. In particular, mere is no legal basis as pled of which could be pled for holding
Defendant COATS, in its limited role as loan broker, liable for Plaintiffs decision to accept a $1.2 million counteroffer to
purchase the subject property.
The moving defendant respectfully requests that the Court put this ill-conceived, fatally flawed lawsuit out of its misery by
granting its demurrer without leave to amend.
Dated: 9-23-06
LAW OFFICE OF JOSEPH L. STINE
<<signature>>
By Joseph L. Stine
Attorney for Defendant COATS ENTERPRISE
End of Document
274
Memorandum of Points and Authorities in Support of Re/Max And

Littles Demurrer to Plaintiffs First Amended Complaint
Enterprise, Inc.; Michael Little, an Individual; Re/max, Inc.; John Contento, SRO, a sole proprietor; and Does 1
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San Diego County
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little, an Individual; Re/max, Inc.; John Contento, SRO, a
No. GIN054088.
September 15, 2006.
Memorandum of Points and Authorities in Support of Re/Max And Littles Demurrer to Plaintiffs First Amended
Complaint
Re/Max Associates (erroneously sued and served as Last Dance, Inc. and Re/Max, Inc.) and ichael Little.
Dept. No.: 31
Time: 1:30 p.m.
LAST DANCE, INC. dba RE/MAX Associates (erroneously sued and served as LAST DANCE, INC. and RE/MAX, Inc.)
(hereinafter RE/MAX) and MICHAEL LITTLE (hereinafter LITTLE) (sometimes collectively referred to as
DEMURRING PARTIES), hereby submit this Memorandum of Points and Authorities in support of their Demurrer to
Plaintiffs MARTHA UMMEL and VERNON UMMELS (collectively referred to as the PLAINTIFFS) First Amended
Complaint for Damages (hereinafter the Complaint).
INTRODUCTION
On July 19, 2006, PLAINTIFFS filed a complaint seeking damages for alleged Fraud, Fraudulent Concealment, Breach of
Covenant of Good Faith and Fair Dealing, Negligence, Negligent Misrepresentation, Constructive Trust, and Breach of
Fiduciary Duty. The Complaint names as defendants: (1) MICHAEL LITTLE (LITTLE), individually, as the
PLAINTIFFS real estate agent; (2) COATS ENTERPRISE, INC. dba HORIZON PACIFIC FINANCIAL (COATS), the
mortgage broker; (3) LAST DANCE, INC. dba RE/MAX ASSOCIATES, the real estate broker; and (4) JOHN CONTENTO
(CONTENTO), the California licensed real estate appraiser. On August 15, 2006, PLAINTIFFS filed a First Amended
Complaint for Damages.
PLAINTIFFS Complaint is insufficient in numerous respects. The First, Second, Third, Fourth, Fifth, Sixth, and Seventh
causes of action fail to state facts sufficient to constitute a cause of action against DEMURRING PARTIES and that no cause
of action is stated where a third party may be responsible for alleged indivisible harm. Therefore, DEMURRING PARTIES
request this Court sustain their Demurrer as to the First, Second, Third, Fourth, Fifth, Sixth, and Seventh causes of action and
dismiss PLAINTIFFS entire Complaint with prejudice.
276
II.
FACTS AS ALLEGED BY PLAINTIFFS
PLAINTIFFS moved from San Rafael, California to San Diego, California. (See Complaint, 3:23-27, attached to Notice of
Lodgment (NOL) as Exhibit A.) Although they had an agent in San Diego, they personally decided to leave their initial
agent and use LITTLE as their real estate agent in the purchase of property in San Diego. They did this based on LITTLES
extensive experience in and knowledge of the San Diego real estate market. (NOL, Exhibit A, 4:24-26.) On or about May
28, 2005, after viewing an abundance of properties, LITTLE showed PLAINTIFFS the 1657 Amante Court, Carlsbad,
California 92009 (the Subject Property). LITTLE showed them this property because it matched perfectly their preferences
and fell well within their broad price range of $950,000 to $1,400,000. The listing price of the Subject Property ranged from
$1,175,000.00 to $1,245,000.00. (NOL, Exhibit A, 6:6-9.) On or about May 28, 2005, the very same day PLAINTIFFS
first viewed the Subject Property, PLAINTIFFS decided to make an offer of $1,175,000.00. (NOL, Exhibit A, 6:18-21.)
The Seller countered at $1,200,000.00, well below the high end of the listing price range. (NOL, Exhibit A, 6:22-23.)
Satisfied with the counter offer, as it was still well below the listing price range for the Subject Property and it was also
$200,000.00 bolow PLAINTIFFS top price range, PLAINTIFFS voluntarily and willingly accepted Sellers counter-offer
and entered into a California Residential Purchase Agreement (RPA) with Seller for the purchase of the Subject Property.
Notably, the Appraisal Report establishes the appraised fair market value as exactly what Seller counter-offered at, and what
PLAINTIFFS ended up paying for the Subject Property. (See Appraisal Report, attached to NOL as Exhibit B.) Escrow
opened on May 29, 2005. (NOL, Exhibit A, 7:8.)
In or around the same time PLAINTIFFS intended to purchase the Subject Property in San Diego, they were selling their
property in San Rafael, California. On or about June 7, 2005, the prospective purchasers of PLAINTIFFS San Rafael
property canceled escrow. (NOL, Exhibit A, 7:9-13.) PLAINTIFFS thought they would have to cancel then purchase of the
Subject Property even though they loved the home, but fortunately, LITTLE negotiated with the Seller and successfully got
an extension of the deadline for PLAINTIFFS to obtain a new buyer for their property to June 29, 2005. (NOL, Exhibit A,
7:13-16.) On or about June 21, 2005, PLAINTIFFS received another offer on their San Rafael property. (NOL, Exhibit A,
7:17-18.) They accepted the offer and escrow opened on their San Rafael property. (NOL, Exhibit A, 7:24.) At this point,
PLAINTIFFS could continue with the purchase of the Subject Property. On or about July 29, 2005, escrow closed on the
Subject Property. (NOL, Exhibit A, 8:18-19.)
On July 19, 2006, one year after the close of escrow, PLAINTIFFS filed the instant Complaint for damages.
III.
LEGAL AUTHORITY FOR DEMURRER
The purpose of a demurrer is to test the legal sufficiency of the pleadings. (Code Civ. Proc. 422 12, 589.) A demurrer is
used to challenge defects appearing on the face of the complaint, or from matters outside the complaint that are judicially
noticeable. (Code Civ. Proc. 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Judicial Council form pleadings are
not immune from demurrer and must state facts essential to a cause of action. (People ex rel. Dept. of Transp. V. Superior Ct.
(1992) 5 Cal.App.4th 1480, 1484.)
Code of Civil Procedure section 430.10 provides in relevant part:
The party against whom a complaint. . . has been filed may object, by demurrer . . . to the pleading on
any one or more of the following grounds ... (d) there is a defect or misjoinder of parties[,] (e) [t]he
pleading does not state facts sufficient to constitute a cause of action [and] (f) [t]he pleading is uncertain.
As used in this subdivision, uncertain includes ambiguous and unintelligible.
277
Additionally, Code of Civil Procedure section 430.50 provides in relevant part:

(a) A demurrer to a complaint... may be taken to the whole complaint ... or to any of the causes of action
stated therein.
IV.
ARGUMENTS
1. Plaintiffs First. Second, and Fifth Causes of Action Fail To State Facts Sufficient To Constitute A Cause Of Action
For Fraud. Fraudulent Concealment and Negligent Misrepresentation Against DEMURRING PARTIES.
DEMURRING PARTIES Demurrer to the First, Second, and Fifth causes of action for fraud, fraudulent concealment, and
negligent misrepresentation must be sustained because PLAINTIFFS Complaint fails to state facts sufficient to constitute a
cause of action for these claims in that PLAINTIFFS fail to allege the necessary elements for a cause of action for fraud.1 The
essential elements of fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of
falsity of the misrepresentation; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5)
resulting damage. (Lazar v. Superior Court (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 638; Universal By-Products, Inc. v.
City of Modesto (1974) 43 Cal.App.3d 145, 151.) The same elements comprise a cause of action for negligent
misrepresentation, except there is no requirement of intent to induce reliance. (Small v. Fritz Companies, Inc. (2003) 30
Cal.4th 167, 173.) In all three causes of action, the plaintiff must plead that they actually relied on the alleged
misrepresentation. (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088-1089 & fn. 2.)
1
Fraudulent concealment contains the same elements as fraud, except that fraudulent concealment includes the element of duty to
disclose. Thus, where PLAINTIFF fails to properly plead facts supporting a fraud cause of action, they correspondingly fail to state
facts sufficient to support a fraudulent concealment cause of action, regardless of whether or not they plead a duty to disclose.
a. First And Second Causes Of Action For Fraud And Fraudulent Concealment.
Each element in the fraud cause of action must be pled with specificity in order to give notice to the defendant and to furnish
him with definite charges. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)
Additionally, when pleading fraud, PLAINTIFFS have an even greater burden. In that situation, fairness requires the
allegations of fraud be plead with particularity so the court can weed out non-meritorious actions. (Committee on Childrens
Television, Inc. et al. v. General Foods Corp. et al., supra, 35 Cal.3d at 216.) Every element of the cause of action for
fraud must be alleged in full, factually, and specifically. The particularity requirement necessitates pleading facts
which show how, when, where, to whom, and by what means the representations where tendered. (Lazar v. Sup. Ct.,
supra, 12 Cal.4th at 645; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) The rationale for this strict requirement [] of
pleading is not merely notice to the defendant. The idea seems to be that allegations of fraud involve a serious attack on
character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to
prepare his defense. (Stansfield, supra, 220 Cal.App.3d at 73, citing Committee on Childrens Television, Inc. v. General
Foods Corp., supra, 35 Cal.3d at 216.) The policy of liberal construction of pleadings will not be invoked to sustain a
pleading defective in any material respect. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.).
PLAINTIFFS in this case failed to state with specificity how, to whom, when and by what means the alleged representations
were made. Rather, they simply claim that LITTLE . . . made the following fraudulent representations.. . . (NOL, Exhibit
A, p.9:18-10:9.) Here, PLAINTIFFS simply make conclusory and general allegations that defendants knew [the
statements] to be false (NOL, Exhibit A, p. 14:6) and had the intention to deceive. (NOL, Exhibit A, p.14:7.) It is
insufficient for PLAINTIFFS to simply plead the evidence they hope to prove at trial. (Careau & Co, v. Security Pacific
278
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.)

Furthermore, PLAINTIFFS failed to specifically plead reliance on LITTLES alleged statements. The mere assertion of
reliance is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona
fide claim of actual reliance. (Small, supra, 30 Cal.4th at 184.) In Engalla v. Permanente Medical Group, Inc. (1997) 15
Cal.4th 951, 976, the court stated, [a]ctual reliance occurs when the defendants misrepresentation is an immediate cause of
the plaintiffs conduct, altering his legal relations, and when, absent such representation, the plaintiff would not, in all
reasonable probability, have entered into the transaction.
Here, under Engalla, PLAINTIFFS have failed to properly allege actual reliance on the alleged misrepresentation because
their behavior was not altered, and absent such representation, they would have, in all likelihood, purchased the Subject
Property anyway. P LAINTIFFS were looking for properly up to the cost of $1,400,000.00 with LITTLE. CONTENTO, the
appraiser, is an experienced, well-qualified appraiser who appraised the Subject Property at precisely what PLAINTIFFS
paid for it, PLAINTIFFS did not present a counter-offer to Sellers counter of $1,200,000.00 for the Subject Property, and
they made an offer on another property for $1,200,000.00, prior to the S ubject Property. C learly, PLAINTIFFS c an neither
legitimately, nor honestly plead facts showing they would not have entered this transaction but for their reliance on
defendants alleged misrepresentations. As such, the fourth element of reliance for fraud is not sufficiently plead.
Lastly, damage is an essential element of a cause of action for fraud. (Committee on Childrens Television, Inc. v. General
Foods Corp., supra, 35 Cal.3d at 219.) Misrepresentation, even maliciously committed, does not support a cause of action
unless the plaintiff suffered consequential damages. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 159.)
Here, PLAINTIFFS allege they incurred damages because they overpaid for the Subject Property. However, PLAINTIFFS
fail to plead such damages with specificity. Instead, they simply allege they purchased the Subject Property for a greatly
exorbitant price. (NOL, Exhibit A, p.l4:23.) Notably, PLAINTIFFS fail to realize they paid the exact value that
CONTENTO, a licensed, experienced, knowledgeable appraiser, appraised the Subject Property at. (NOL, Exhibit B.) Even
assuming arguendo, the Subject Property was valued slightly higher than its market value, PLAINTIFFS still: (1) paid
well-below the high end of the listing price range; (2) voluntarily decided and agreed to purchase the Subject Property for
$1,200,000.00; and (3) did not even consider submitting a counter-offer to Sellers counter-offer of $1,200,000.00.
Any damages claimed by PLAINTIFFS are not a result of any alleged statements or concealment by DEMURRING
PARTIES, but rather as a result of the fluctuating real estate market. PLAINTIFFS in this case paid exactly the appraised
market value for the Subject Property and now, as a result of the market change, feel they overpaid for it. This is a clear case
of buyers remorse, In short, PLAINTIFFS did not sustain any damages and cannot honestly and legitimately plead facts
supporting any damages because a licensed, experienced California appraiser valued the Subject Property at PLAINTIFFS
agreed on purchase price.
Additionally, PLAINTIFFS fail to specify against which Defendants the First Cause of action for fraud is against. Rather, the
Complaint generally labels the cause of action as Fraud as against all defendants. (NOL, Exhibit A, p.8:28.) Contrary to the
specific requirements for allegations of fraud, PLAINTIFFS Complaint is uncertain and unspecific as to what Defendants
said what and to whom they made such statements. As described above, PLAINTIFFS must clearly and specifically identify
each representation, identify the particular defendant that made the alleged representation, how they made it and to whom the
made it. PLAINTIFFS general statement that the fraud cause of action is against all defendants fails to meet the specificity
requirements demanded by a fraud claim.
PLAINTIFFS fail to properly and specifically plead, and cannot legitimately plead, the elements for fraud and fraudulent
concealment because there are no facts supporting intent to induce reliance and actual reliance by PLAINTIFFS. Further,
PLAINTIFFS have not identified how the alleged act resulted in damage to PLAINTIFFS because they paid exactly the
appraised price. Therefore, this Demurrer must be sustained and the First and Second causes of action must be dismissed
with prejudice.
b. Fifth Cause Of Action For Negligent Misrepresentation.
In addition to the elements of fraud stated in Section 1 above,2 for negligent misrepresentation, the element of
279
misrepresentation must be plead as a false statement of material fact, where the defendant honestly believes it to be true, but
made it without reasonable grounds for reliance. Thus, there is no liability for an innocent misrepresentation where the agent
acted reasonably and had reasonable grounds to believe what he said was true. (Robinson v. Grossman (1997) 57 Cal.App.4th
634, 642-43.) Under Padgett v. Phariss, ((1997) 54 Cal. App. 4th 1270, 1284) when an agent communicates what the fair
market value of the property is he provides his opinion, such opinions are just that: opinions, not representations of fact, and
are not actionable misrepresentations. (See also Kahn v. Lischner (1954) 128 Cal. App. 2d 480, 487 (emphasis added).)
2
The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce
reliance. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)
Here, PLAINTIFFS fail to allege DEMURRING PARTIES made a false statement of material fact, honestly believing it to
be true, but without reasonable grounds for such belief. Instead, they simply allege LITTLE believed that the Ummels were
getting a good deal by purchasing the Amante Property for $1,200,000.00. (NOL, Exhibit A, p. 9:24-26.) Under Padgett,
such a statement by LITTLE is clearly his opinion on the value of the house and is not actionable. PLAINTIFFS admit it was
only LITTLES opinion because they allege he merely believed the price was a good deal. Thus, the PLAINTIFFS
Complaint omits an essential element of a cause of action for negligent misrepresentation.
In Wilhelm v. Pray, Price, Williams & Russell, the court concluded such an omission was fatally defective to a claim of
negligent misrepresentation. ((1986) 186 Cal.App.3d 1324, 1332-1333 (sustaining a demurrer without leave to amend as to
an action for negligent misrepresentation when the complaint did not allege that false representations were made honestly
believing they were true, but having no reasonable ground for such belief, and when the misrepresentations were not the
proximate cause of any harm).) Thus, here, as in Wilhelm, the court must sustain this demurrer without leave to amend as the
omission of the allegation that DEMURRING PARTIES made a false statement of material fact, honestly believing it to be
true, but without reasonable grounds for such belief, is a fatal one.
Given the foregoing authorities, it is evident PLAINTIFFS failed to allege sufficient specific facts to support the First,
Second, and Fifth causes of action. The burden of proving a reasonable possibility of amending the complaint to state a cause
of action is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) PLAINTIFFS cannot meet this burden
because no facts exist to support the claim for damages because PLAINTIFFS paid the appraised fair market value. Further,
under Wilhelm, PLAINTIFFS made a fatal error in the negligent misrepresentation claim and LITTLES statement was a
mere opinion and is not actionable; therefore, DEMURRING PARTIES Demurrer to the First, Second and Fifth causes of
action must be sustained and the causes of action dismissed with prejudice.
2. The Third. Fourth. And Seventh Causes Of Action Fail To State Facts Sufficient To State A Cause Of Action Against
DEMURRING PARTIES.
PLAINTIFFS Third, Fourth, and Seventh causes of action for breach of the covenant of good faith and fair dealing,
negligence, and breach of fiduciary duties fail to state facts sufficient to constitute causes of action against DEMURRING
PARTIES. PLAINTIFFS own Complaint is inconsistent on its face. PLAINTIFFS allege DEMURRING PARTIES breached
the implied covenant by failing to provide comparables of nearby home sales to the [Subject] Property that gave clear
indication that the [Subject] Property was substantially overvalued. (NOL, Exhibit A, p.17:17-23.) Additionally,
PLAINTIFFS fail to allege DEMURRING PARTIES were the proximate cause of PLAINTIFFS damages. Here, all
PLAINTIFFS Complaint alleges is that DEMURRING PARTIES breached this implied covenant because they allegedly did
not advise PLAINTIFFS of nearby home sales and did not provide the appraisal until after the close of escrow.
However, PLAINTIFFS attached as Exhibit A to their Complaint the Appraisal Report completed by CONTENTO, which
clearly states the Subject Property is valued at $1,200,000.00 - precisely what PLAINTIFFS paid for it. Clearly,
PLAINTIFFS bought this property for fair market value and now have buyers remorse because the market is changing and
property values are decreasing. PLAINTIFFS allege DEMURRING PARTIES breached this covenant by not providing the
appraisal report until after the close of escrow. (NOL, Exhibit A, p. 17:21-23.) Regardless of when PLAINTIFFS saw the
appraisal report, they paid fair market value for the Subject Property and have no damages. Thus, the Complaint fails to state
280
fact sufficient to state a claim against DEMURRING PARTIES and the Demurrer must be sustained without leave to amend.
To show negligence, Plaintiffs must allege a duty, breach of that duty, actual cause, proximate cause and damages. (Wise v.
Superior Court (1990) 222 Cal. App. 3d 1008, 1013.) Breach of fiduciary duties is a species of fraud. Both causes of action
require damages. As discussed in Section 1, Subsection (a), infra, PLAINTIFFS fail to particularly and specifically allege
facts to support a claim for fraud. There is no fraudulent actions by DEMURRING PARTIES stated on the face of
PLAINTIFFS Complaint because PLAINTIFFS paid the exact price the Subject Property was appraised at. If they paid the
market value, there are no damages, and PLAINTIFFS cannot legitimately state a claim. PLAINTIFFS merely allege a
breach caused injury to them. (NOL, Exhibit A, p.21:14.) On the contrary, they suffered no injury as is shown by the fact
of their Complaint: they paid $1,200,000.00 for the Subject Property and the Subject Property appraised at $1,200,000.00.
(Compare NOL, Exhibit A, p.7:8 and Exhibit B.) If they claim their damages are the difference between what they paid for
the Subject Property and the amount the Subject Property was overvalued, PLAINTIFFS must allege this amount. It is
insufficient for PLAINTIFFS to simply plead the evidence they hope to prove at trial. (Careau & Co. v. Security Pacific
Business Credit, Inc., supra, 222 Cal.App.3d at 1390.) Where the face of the Complaint clearly shows there are no damages
because they paid the appraised value, PLAINTIFFS have failed to show damages and, therefore, fail to state facts sufficient
to support the Third, Fourth, and Seventh causes of action.
Therefore, to the extent PLAINTIFFS Complaint fails to show facts sufficient to support a cause of action in that it shows no
damages, and they cannot honestly amend the Complaint to show damages because they paid market value, PLAINTIFFS*
Third, Fourth, and Seventh Causes of action must be dismissed with prejudice.
3. The Sixth Cause Of Action For Constructive Trust Fails To State Facts Sufficient To Constitute A Cause Of Action
Against DEMURRING PARTIES.
A constructive trust is a remedy used by a court of equity to compel a person who has property to which he is not justly
entitled to transfer it to the person entitled thereto. (Burger v. Superior Court (1984) 151 Cal.App.3d 1013, 1018.) The
elements of constructive trust are: (1) that defendant has title to specifically identified property; (2) acquisition of such title is
traceable to defendants wrongdoing (i.e., fraud, violation of trust, undue influence, accident, mistake); (3) unjust enrichment;
and (4) no remedy at law. (Code of Civ. Proc. 2224.) PLAINTIFFS have neither plead, nor demonstrated the elements of a
constructive trust. Assuming arguendo PLAINTIFFS allegations are true and they overpaid for the Subject Property, their
remedy at law would be monetary damages in the amount of the difference between the price paid and the fair market value
at the time of the sale.3 As stated above, the burden of proving a reasonable possibility of amending the complaint to state a
cause of action is squarely on the plaintiff. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Constructive trust is an equitable
remedy; therefore, if plaintiffs claim they overpaid for their house, their damages are clearly monetary, there is a remedy at
law, and it will be impossible for PLAINTIFFS to amend the Complaint to state a cause of action for such an equitable
remedy. As such, DEMURRING PARTIES Demurrer must be sustained without leave to amend.
3
However, the appraisal stated the fair market value as $1,200,000.00 - exactly what PLAINTIFFS paid for it, so there are no
damages available at law. Because PLAINTIFFS paid the fair market value, there is no conceivable way they can amend the
Complaint to sufficiently plead damages.
CONCLUSION
For the reasons stated above, DEMURRING PARTIES respectfully request this court sustain its Demurrer to PLAINTIFFS
Complaint without leave to amend.
DATED: September 15, 2006
<<signature>>
281

Attorney for LAST DANCE, INC. dba RE/MAX Associates (erroneously sued and served as LAST DANCE, INC. and
RE/MAX, Inc.) and LITTLE
End of Document
282
Memorandum of Points & Authorities in Support of Defendants

Motion to Strike Plaintiffs Claim for Attorneys Fees And
Exemplary and Punitive Damages
Search Details
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Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:

San Diego County
v.
No. GIN054088.
September 15, 2006.
Memorandum of Points & Authorities in Support of Defendants Motion to Strike Plaintiffs Claim for Attorneys
Fees And Exemplary and Punitive Damages
400, San Diego, CA 92108, Tel: (619) 542-2490, Fax: (619) 299-0468, Attorneys for Defendants Last Dance, Inc. dba
Dept. No.: 31
Time: 1:30 p.m.
LAST DANCE, INC. and RE/MAX, INC.) and MICHAEL LITTLE (hereinafter LITTLE), hereby submit the following
points and authorities in support of their motion to strike Plaintiffs claim for attorneys fees and exemplary and punitive
damages as set forth in Plaintiffs First Amended Complaint (Complaint).
INTRODUCTION
This action is based on the purchase of property, located at 1657 Amante Court (the Subject Property) by Plaintiffs
MARTHA and VERNON UMMEL (collectively referred to as the PLAINTIFFS). On July 19, 2006, PLAINTIFFS filed a
complaint seeking damages for alleged Fraud, Fraudulent Concealment; Breach of the Covenant of Good Faith and Fair
Dealing; Negligence; Negligent Misrepresentation; Constructive Trust, and Breach of Fiduciary Duty. PLAINTIFFS demand
attorneys fees and punitive damages in their Complaint. However, the only contract referenced, and for which PLAINTIFFS
base their claims on is between PLAINTIFFS and Seller. RE/MAX, as a real estate broker, are not parties to this contract.
Therefore, PLAINTIFFS are not entitled to attorneys fees under the contract at issue. Furthermore, PLAINTIFFS are not
entitled to exemplary and punitive damages because the conduct in question does not meet the threshold requirement of
egregiousness. As such, RE/MAXS Motion to Strike must be granted.
I. STATUTORY AUTHORITY FOR MOTION TO STRIKE
California Civil Code of Procedure Section 436 states:
284
[T]he court may, upon a motion made pursuant to Section 435 or at any time in its discretion, and upon terms it deems
proper:
(a) strike out any irrelevant, false, or improper matter inserted in any pleading;
(b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any
order of the court.
II. THE COURT MUST STRIKE PLAINTIFFS PRAYER FOR ATTORNEYS FEES.
The basic rule in American Jurisprudence is that regardless of which party in an action prevails, each party bears their own
attorneys fees. (Alyeska Pipeline Service Co. v. Wilderness Socy (1975) 421 U.S. 240.) PLAINTIFFS bear the burden of
proving their entitlement to the attorneys fees they seek in this matter. Under California law, attorneys fees can only be
obtained in a contract or statute. (Code of Civ. Proc. 1021.)
da. No Contractual Authority Exists Allowing a Recovery of Attorneys Fees
PLAINTIFFS are not entitled to attorneys fees from RE/MAX and LITTLE because there is no contract permitting such an
award. The only contract referenced, and for which PLAINTIFFS base their claims on, is the Residential Purchase
Agreement (RPA). However, RE/MAX and LITTLE, as the agents and brokers in the transaction, are not parties to the
RPA, as a matter of law. (See Super 7 Motel Assoc. v. Wang (1993) 16 Cal.App.4th 541.) Moreover, the RPA clearly states,
Real estate brokers are not parties to the Agreement between Buyer and Seller. (NOL, Exhibit C, p.8.) RE/MAX is a real
estate broker; therefore, RE/MAX and LITTLE are not parties to the contract involved in the instant case.
As such, there is no contractual basis for PLAINTIFFS claim for attorneys fees. Accordingly, the court must strike
PLAINTIFFS demand for attorneys fees.
III. THE COURT MUST STRIKE PLAINTIFFS PRAYER FOR EXEMPLARY AND PUNITIVE DAMAGES.
PLAINTIFFS allege they are entitled to exemplary and punitive damages for the First, Second, Third, Sixth, and Seventh
causes of action. (NOL, Exhibit A, p.22:l-5.) However, PLAINTIFFS have no basis for an exemplary and punitive damages
award because the Complaint fails to allege sufficient facts demonstrating malice, oppression, and fraud. (Civ. Code
3294.)
Civil Code section 3294 provides:
a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence
that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the defendant.
...
(c) As used in this section, the following definitions shall apply:
(1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that
persons rights.
(3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Although PLAINTIFFS allege a Fraud, Fraudulent Concealment, Breach of Implied Covenant of Good Faith and Fair
285
Dealing, Constructive Trust, and Breach of Fiduciary Duties, an alleged breach of fiduciary duty without malice, fraud or
oppression does not permit an award of punitive damages. (Delos v. Farmers Group (1979) 93 Cal.App.3d 642, 656-657;
Flyers Body Shop v. Ticor Title, (1986) 185 Cal.App.3d 1149, 1154.) The mere alleged carelessness or ignorance of the
defendant does not justify the imposition of punitive damages. What is necessary for the award of punitive damages is
conduct that displays extreme indifference that decent citizens should not tolerate it. (Hughes v. Blue Cross (1989) 215
Cal.App.3d 832, 847 (emphasis added).) To justify an award of punitive damages proof of negligence, or even gross
negligence, or recklessness is insufficient to warrant such an award. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82,
88.)
Here, PLAINTIFFS entire Complaint is devoid of any allegations of malice, oppression, or fraud, and there is no evidence,
of conduct of any indifference, let alone such extreme indifference in this case. In fact, PLAINTIFFS admit in their
allegations that LITTLE merely believed that the [PLAINTIFFS] were getting a good deal by purchasing the Amante
Property for $1,200,000.00. (NOL, Exhibit A, p. 9:24-26.) A belief that a property is a good deal or fair value does not
equate to maliciousness, but is merely an opinion. The facts alleged, at most, an opinion or a belief by LITTLE, which is
insufficient to sustain an award of punitive and exemplary damages. The breach of good faith and fair dealing, constructive
trust and breach of fiduciary duties causes of action do not support a claim for exemplary and punitive damages either
because they, as with the fraud and fraudulent concealment claims, do not express extreme indifference by RE/MAX and
LITTLE, an agent for RE/MAX. Because exemplary and punitive damages are not recoverable without a showing of malice,
fraud or oppression, RE/MAX and LITTLES Motion to Strike must be granted and PLAINTIFFS exemplary and punitive
damages claims must be stricken from the Complaint.
CONCLUSION
Since there is no contract allowing for attorneys fees, and since exemplary and punitive damages are recoverable only where
malice, oppression, or fraud is shown, RE/MAX and LITTLES Motion to Strike the prayer for attorneys fees and
exemplary and punitive damages from PLAINTIFFS Complaint must be granted without leave to amend. For the foregoing
reasons the Court should grant this motion and strike the attorneys fees and exemplary and punitive damages prayers in
PLAINTIFFS Complaint.
<<signature>>
Attorney for Defendants LAST DANCE, INC. dba RE/MAX ASSOCIATES (erroneously sued and served as Distinctive
End of Document
286
Notice of Demurrer and Demurrer to Plaintiffs First Amended

Complaint; Memorandum of Points And Authorities in Support
Thereof
Search Details
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Jurisdiction:
California
Delivery Details
Date:
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Client ID:
1111
Comment:

San Diego County
v.
No. GIN 054 088.
September 8, 2006.
Notice of Demurrer and Demurrer to Plaintiffs First Amended Complaint; Memorandum of Points And Authorities
in Support Thereof
Time: 1:30 p.m.
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE, that on October 20, 2006, at 1:30 p.m., or as soon thereafter as counsel may be heard, in
Department 31 of the above-entitled Court, located at 325 South Melrose Drive, Vista, California 92083, defendant JOHN
CONTENTO will and hereby does demur to the following causes of action in Plaintiffs First Amended Complaint, on the
following grounds:
DEMURRER TO THE FIRST CAUSE OF ACTION FOR FRAUD

1. The First Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
California Code of Civil Procedure 430.10(e).
2. The First Cause of Action fails to state facts with sufficient particularity to support a cause of action based on fraud.
DEMURRER TO THE FOURTH CAUSE OF ACTION FOR NEGLIGENCE

288
3. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
DEMURRER TO THE FIFTH CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION

4. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
5. The Fifth Cause of Action fails to state facts With sufficient particularity to support a cause of action based on fraud.
JOHN CONTENTO will also request that the Court deny Plaintiffs leave to amend the First, Fourth and Fifth Causes of
Action as JOHN CONTENTO can have no liability under those claims as a matter of law.
The Demurrer is based upon this Notice of Demurrer, the Memorandum of Points and Authorities, upon all papers and
pleadings on file herein, and upon such other oral and/or further material and argument as may be presented at the hearing on
the demurrer.
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN

I.
INTRODUCTION
According to the First Amended Complaint, Plaintiffs entered into a written agreement on or about May 29, 2005 to purchase
the real property located at 1657 Amante Court, Carlsbad, California (hereinafter Amante property) for $1.2 million. (See
First Amended Complaint, 18-24.) JOHN CONTENTO, a real estate appraiser, was retained to prepare an appraisal of the
Amante property for a purchase money loan. Plaintiffs admit they did not arrange for JOHN CONTENTO to appraise the
Amante property. (First Amended Complaint, 28.)
Plaintiffs allege defendant JOHN CONTENTO represented the Amante property value was $1.2 million in his appraisal
signed July 20, 2005. (First Amended Complaint, 41.) Plaintiffs contend that the true value of the Amante property was
$1,050,000. (First Amended Complaint, 44(b).) Plaintiffs also contend that other misrepresentations were made in the
appraisal report relating to adjustments and comparable sales chosen. (First Amended Complaint, 42a-g.) Finally, Plaintiffs
allege that JOHN CONTENTO fraudulently withheld from his appraisal another comparable sale across the street from the
Amante property that had a pending sales price of between $999,000 and $1.1 million. (First Amended Complaint, 44(a).)
289
Plaintiffs contend that in reliance on these representations, they purchased the Amante property. (First Amended Complaint,
45.)
However, Plaintiffs also state in their First Amended Complaint that they never received the appraisal report prepared by
JOHN CONTENTO prior to close of escrow on July 29, 2005. (First Amended Complaint, 27-32.) Therefore, they
could not have relied on any information in it to purchase the property nor could they have been intentionally induced
to rely on the information.
Thus, Plaintiffs seek to recover under theories of liability that are not available to them against JOHN CONTENTO. Each
cause of action discussed herein fails to state a claim against JOHN CONTENTO. Based thereon, JOHN CONTENTO
demurs to each of the stated causes of action. JOHN CONTENTO will also request that this Court deny Plaintiffs leave to
amend the First, Fourth and Fifth Causes of Action against JOHN CONTENTO as Plaintiffs cannot assert those claims
against JOHN CONTENTO as a matter of law.
II.
THE COURT HAS THE DISCRETION TO DISMISS A CAUSE OF ACTION WHERE THE FIRST AMENDED
COMPLAINT FAILS TO STATE SUFFICIENT FACTS TO SUPPORT IT.
Where a Complaint or cause of action fails to state sufficient facts to constitute a cause of action, a defendant may object by
way of demurrer. California Code of Civil Procedure 430.10(e).
III.
THE COURT MAY SUSTAIN A DEMURRER WITHOUT LEAVE TO AMEND.
Although leave to amend is liberally granted, it is not appropriate where the demurring party can have no liability as a matter
of law. See, Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436. Furthermore, the burden is on the plaintiff to
show he or she can cure the deficiencies in the Complaint by amendment. See weil, civil practice guide: civil procedure
before trial, 7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).
The facts of this case clearly show that JOHN CONTENTO has no liability to Plaintiffs as a matter of law under the First,
Fourth and Fifth Causes of Action. Plaintiffs will be unable to show any contract between Plaintiffs and JOHN CONTENTO
to prepare an appraisal of the Amante property. Furthermore, Plaintiffs have already admitted to not speaking or otherwise
communicating with JOHN CONTENTO or even having the appraisal to review prior to close of escrow. (First Amended
Complaint, 27-32.) Therefore, Plaintiffs could not have relied on any of the information in that report to purchase the
property.
As set out below, Plaintiffs will not be able to carry the burden of showing they can cure the deficiencies therein. If they try
to amend their First Amended Complaint to eliminate that Plaintiffs admitted to not receiving any information from the
appraisal report prior to close of escrow, they will be changing a material fact in their own original First Amended
Complaint. JOHN CONTENTO, therefore, respectfully submits that Plaintiffs should be denied leave to amend those causes
of action.
IV.
THE FIRST AMENDED COMPLAINT DOES NOT ALLEGE FACTS WITH SUFFICIENT PARTICULARITY TO
SUPPORT THE FRAUD CLAIMS AGAINST JOHN CONTENTO.
290
The First Amended Complaint contains two causes of action based on fraud: the First Cause of Action for Fraud and the Fifth
Cause of Action for Negligent Misrepresentation. Each of these claims are subject to demurrer because the First Amended
Complaint does not contain particular facts to support those claims.
Fraud must be plead with particularity. Comm. on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216. Every element must be alleged factually and specifically. Id. That is when it comes to alleging fraud, California law
requires more than mere notice to the defendant because fraud constitutes a serious attack on character, and fairness to the
defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Legal
conclusions alone will not support a cause of action for fraud. Thus, the policy of liberal construction of the pleadings ... will
not ordinarily be invoked to sustain a pleading defective in any material respect. Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73 (internal quotations omitted); Comm. on Childrens Television, Inc. v. General Foods, supra at 216 (citing
3 Witkin Cal. Procedure 2d ed. 1971 Pleading, 574). in order to plead sufficient facts to support the fraud claims, Plaintiffs
must plead facts which show how, when, where, to whom, and by what means the representations were tendered.
Stansfield, supra at 73.
The specificity requirement serves two purposes. The first is notice to the defendant to furnish the defendant with certain
definite charges which can be intelligently met [and the second 1] to enable the court to determine whether, on the facts
pleaded, there is any foundation, prima facie at least, for the charge of fraud. Comm. on Childrens Television Inc., supra
at 716-17 (citations omitted). Plaintiffs have failed to allege facts with sufficient particularity so that JOHN CONTENTO can
intelligently meet the allegations. Moreover, Plaintiffs have failed to show there is a prima facie foundation for the charge of
fraud.
A. Plaintiffs Have Not Alleged Facts With Sufficient Particularity to Support the First Cause of Action for Fraud.
not have sufficient knowledge to warrant the representation, (3) with the intent to induce the Plaintiffs to act on the false
representation or concealed material fact, (4) that plaintiff relied upon, (5) to plaintiffs damage. Reed v. King (1983) 145
Cal.App.3d 261, 264. [Emphasis added.]
Plaintiffs have failed to allege who, when, where and how misrepresentations or omissions were made in their consideration
to purchase the Amante property. To support the fraud claim, Plaintiffs allege that JOHN CONTENTO made the
representations to them that the Amante property was worth $1.2 million in the appraisal signed July 20, 2005 by JOHN
CONTENTO prepared. (First Amended Complaint, 41.) Plaintiffs allege that JOHN CONTENTO made numerous
misrepresentations in his appraisal about the property with the intention to deceive and defraud the Plaintiffs and induce the
Plaintiffs to act in reliance on these representations in the manner hereinafter, or with the expectation that Plaintiffs would so
act. (First Amended Complaint, 42.) Furthermore, Plaintiffs contend that in reliance on these representations, Plaintiffs
were induced to, and did, pay $1,200,000 for the Amante property. (First Amended Complaint, 45, 72.)
However, earlier in their First Amended Complaint, Plaintiffs admit they never received the appraisal prepared by JOHN
CONTENTO until after close of escrow. (See First Amended Complaint, 27-32.) Therefore, by their own contentions in
Plaintiffs First Amended Complaint, they could not have possibly relied on or been induced by any representations in the
JOHN CONTENTO appraisal report to purchase the property since they admit in their own First Amended Complaint that
they never received information from the appraisal report from anyone prior to close of escrow. (First Amended Complaint,
27-32.)
B. Plaintiffs Have Not Alleged Facts With Sufficient Particularity to Support the Fifth Cause of Action for Negligent
Misrepresentation.
Negligence misrepresentation is a species of fraud. Loken v. Prudential-Award Properties (1995) 36 Cal.App.4th 263, 272;
Wilson v. Prudential Great Western Realty (1993) 15 Cal.App.4th 298, 306. Consequently, Plaintiffs must allege this cause
of action with particularity. Plaintiffs have failed to allege how, when, where, to whom and by what means the
291
representations in the appraisal report were tendered in making their decision to purchase the Amante property. Plaintiffs
admitted they closed escrow on the Amante property on July 29, 2005 before anyone provided the appraisal to them, on or
after August 18, 2005. (First Amended Complaint, 31-32.)
Plaintiffs admit that Agent Little did not provide the appraisal until after close of escrow. (First Amended Complaint, 32.)
Plaintiffs allege that the Plaintiffs were induced to, and did, pay $1,200,000 for the Amante property. (First Amended
Complaint, 32.) But Plaintiffs also contended earlier that they never received the JOHN CONTENTO appraisal prior to
close of escrow. Plaintiffs never allege who, if anyone, told them that the appraisal report estimated a value of the Amante
property of $1.2 million nor when the statement was made, if ever, prior to close of escrow. Furthermore, nowhere in their
First Amended Complaint do Plaintiffs state that anyone at any time before close of escrow told them about any information
in the JOHN CONTENTO appraisal report that they could have been induced to rely on to buy the Amante property.
Therefore, the Fifth Cause of Action does not show a prima facie foundation for the claim.
C. Plaintiffs Should be Denied Leave to Amend The First & Fifth Causes of Action.
Plaintiffs could not have relied on JOHN CONTENTOs appraisal or its estimated opinion of value to purchase the Amante
property since they admit in their own First Amended Complaint they received the appraisal report on or about August 18,
2005, after close of escrow on July 29, 2005. Furthermore, Plaintiffs never stated who relayed any information about the
JOHN CONTENTO appraisal report regarding the purchase of the Amante property prior to close of escrow, nor the
information relayed. JOHN CONTENTO submits that Plaintiffs will be unable to meet the burden of supporting their Causes
of Action for Fraud and Negligent Misrepresentation against JOHN CONTENTO. Any leave to amend should, therefore, be
denied.
V.
THE FIRST AMENDED COMPLAINT DOES NOT ALLEGE FACTS TO SUPPORT PLAINTIFFS FOURTH
CAUSE OF ACTION FOR NEGLIGENCE AGAINST JOHN CONTENTO.
Plaintiffs allege in their First Amended Complaint that JOHN CONTENTO owed the Plaintiffs a duty to exercise skill
ordinarily exercised by reputable members of the profession practicing in the same or similar circumstances in the
performance of their respective duties so as to prevent injury to plaintiff. (First Amended Complaint, 65.) To plead a cause
of action based on negligence, the Plaintiffs must establish the following elements: (1) duty to Plaintiffs; (2) breach; (3)
causation; and (4) damages. Freidman v. Merck & Co. (2003) 131 Cal.Rptr.2d 885, 890, 107 Cal.App.4th 454, rev. den.).
Plaintiffs cannot prove JOHN CONTENTO owed any duty to Plaintiffs. The absence of duty ends the analysis of liability.
Martinez v. Bank of America Nat. Trust & Sav. Assn. (2000) 98 Cal.Rptr.2d 576, 586, 82 Cal.App.4th 883. Plaintiffs admit
that they did not retain JOHN CONTENTO to conduct an appraisal of the Amante property. First Amended Complaint, 28.)
Plaintiffs never contend they spoke with or met JOHN CONTENTO. Plaintiffs never contend they entered into any contract
with JOHN CONTENTO to appraise the property. Instead, they contend in their First Amended Complaint that they asked
Agent Little if the appraisal had been completed and asked Agent Little repeatedly prior to close of escrow on the Amante
property that they wanted to see the appraisal and did not. (First Amended Complaint, 29-32.) Escrow closed on July 29,
2005. (First Amended Complaint, 31.) Plaintiffs admit that it was not until on or about August 18, 2005 that Plaintiffs
received the JOHN CONTENTO appraisal from Agent Little. (First Amended Complaint, 32.) Plaintiffs did not establish
that JOHN CONTENTO owed Plaintiffs any duty.
A. Plaintiffs Should be Denied Leave to Amend the Fourth Cause of Action.

Plaintiffs will be unable to allege that JOHN CONTENTO had any duty to Plaintiffs nor will they be able to allege that the
appraisal report caused them damages. Plaintiffs admit they already purchased and closed escrow on the Amante property
after they received the appraisal report prepared by JOHN CONTENTO. Consequently, Plaintiffs will not be able to meet
292
the burden of showing that they can cure the deficiencies in the Fourth Cause of Action. Therefore, JOHN CONTENTO
requests that this Court sustain the demurrer to the Fifth Cause of Action without leave to amend.
VI.
CONCLUSION
Plaintiffs First Amended Complaint fails to state facts sufficient to support Causes of Action for Fraud, Negligent
Misrepresentation and Negligence against JOHN CONTENTO. In addition, the First Amended Complaint does not contain
facts with sufficient particularity to support the Fraud and Negligent Misrepresentation claims. Therefore, JOHN
CONTENTO requests that the Court sustain his Demurrer to the First, Fourth and Fifth Causes of Action. Finally, because as
a matter of law JOHN CONTENTO has no liability under the facts of this case for the First, Fourth and Fifth Causes of
Action, JOHN CONTENTO requests that the Court deny Plaintiffs leave to amend as to those causes of action against
JOHN CONTENTO.
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN
End of Document
293
Notice of Motion and Motion to Strike Punitive Damages in

Plaintiffs First Amended Complaint; Memorandum of Points and
Authorities
Enterprise, Inc.; Michael Little; Individually; John Contento, SRO, a sole proprietor; Does 1 through 50, Defendants. |
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1111
Comment:

San Diego County
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little; Individually; John Contento, SRO, a sole proprietor;
No. GIN 054 088.
September 8, 2006.
Notice of Motion and Motion to Strike Punitive Damages in Plaintiffs First Amended Complaint; Memorandum of
Points and Authorities
Robert T. Dolan (state Bar No. 110494), Lindsay Mc Menamin (State Bar No. 210269), Gaglione & Dolan, 20750 Ventura
Time: 1:30 p.m.
TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD HEREIN:
PLEASE TAKE NOTICE that on October 20, 2006, at 1:30 p.m., or as soon thereafter as counsel may be heard in
Department 31 of the above-entitled Court, located at 325 South Melrose Drive, Vista, California 92083, the Motion to Strike
portions of the First Amended Complaint of Plaintiffs MARTHA UMMEL and VERNON UMMEL Defendant, JOHN
CONTENTO will be heard.
Filed and served herewith are the Motion to Strike and Memorandum of Points and Authorities in support of the Motion to
Strike.
JOHN CONTENTO hereby moves to strike portions of the First Amended Complaint on the following grounds:
1. Paragraph 48 (punitive damages) is improper and not drawn in conformity with the laws of this State.
This Motion to Strike is based upon this Notice of Hearing of Motion to Strike, the Memorandum of Points and Authorities in
support of the Motion to Strike, and upon such further written and oral evidence as may be presented before and at the
hearing of the Motion to Strike.
GAGLIONE & DOLAN
295
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN

I.
INTRODUCTION
This claim arises from the purchase by the Plaintiffs of a single family residence located at 1657 Amante Court, Carlsbad,
California (hereinafter referred to as the Amante property). The purchase price was $1.2 million. (First Amended
Complaint, 24.) John Contento, a licensed real estate appraiser, was retained by the lender to prepare an appraisal for its
consideration in issuing a purchase money loan to Plaintiffs. This appraisal is dated July 20, 2005. Escrow on this purchase
closed July 29, 2005. (First Amended Complaint, 31.) Plaintiffs admit in their First Amended Complaint that they did not
obtain information from the appraisal report until on or about August 18, 2005. (First Amended Complaint, 32.) However,
in their First Amended Complaint, they contend that JOHN CONTENTO intentionally and fraudulently misrepresented the
value of the property to them. Plaintiffs contend that the true value of the Amante property was $1,050,000. (First Amended
Complaint, 44(b).) Plaintiffs also contend that other fraudulent misrepresentations were made in the appraisal report relating
to adjustments and the comparable sales chosen by JOHN CONTENTO. (First Amended Complaint, 42, 44(a).) Plaintiffs
contend they relied on these representations to purchase the property for $1.2 million. (First Amended Complaint, 45.)
Plaintiffs filed causes of action for fraud, negligence and negligent misrepresentation against JOHN CONTENTO. Under the
First Cause of Action for Fraud, Plaintiffs have also requested punitive damages.
II.
LEGAL AUTHORITY FOR MOTION TO STRIKE
California Code of Civil Procedure Section 435(b)(1) provides:
Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to
strike the whole or any part thereof.
The statutory grounds for this Motion to Strike are stated in California Code of Civil Procedure 436, which provides:
The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems
proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
296
(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court.
III.
ALL REFERENCES TO PUNITIVE DAMAGES AGAINST JOHN CONTENTO SHOULD BE STRICKEN
Under California Civil Code 3294(a), exemplary damages are allowable, as follows:
In an action for the breach of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in
addition to the actual damages, may recover damages for the sake of example and by way of punishing
the defendant.
Also under Civil Code 3294(c)(3). Fraud means an intentional misrepresentation, deceit or concealment of a material fact
known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.
In Plaintiffs First Amended Complaint, Plaintiffs make a claim for punitive damages against JOHN CONTENTO. (First
Amended Complaint, 45.) However, Plaintiffs have failed to plead the particular facts necessary to support a fraud claim.
Comm. on Childrens Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Furthermore, Plaintiffs will be
unable to provide sufficient facts to support the fraud claims that relate to JOHN CONTENTOs appraisal report and their
contention that information in that appraisal was made to intentionally deceive and defraud the Plaintiffs and induce them to
act in reliance on these representations. (First Amended Complaint, 45.)
This is based on Plaintiffs admitting in their own First Amended Complaint that, despite numerous requests to their real
estate agent, Little, they never received the appraisal report or information in it until after close of escrow. (First Amended
Complaint, 28-32.) Without receiving the appraisal report prior to close of escrow, and without the transmission of any
information to them in the appraisal report before close of escrow, they could not possibly have been deceived or induced to
any act. Furthermore, in Plaintiffs First Amended Complaint, Plaintiffs clearly state that defendant Agent Little, on behalf
of defendants Remax and Horizon, intentionally and fraudulently withheld the Appraisal from the Plaintiffs until after
escrow closed on the Amante property. (First Amended Complaint, 40.) Nowhere in the First Amended Complaint is it
contended that JOHN CONTENTO withheld the appraisal from Plaintiffs.
When there is no support for fraud, there can be no request for punitive damages under California statutory law.
IV.
CONCLUSION
The First Amended Complaint contains allegations that are improper and not drawn in conformity with the laws of this State.
Accordingly, it is requested that this Motion to Strike be granted as discussed above, without leave to amend.
GAGLIONE & DOLAN
297
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMlN
Attorneys for Defendant,
JOHN CONTENTO
End of Document
298
Notice of Demurrer and Demurrer to Plaintiffs Complaint;

Memorandum of Points and Authorities in Support Thereof
Enterprise, Inc.; Michael Little, individually; Remax, Inc.; John Contento, SRO, a sole proprietor; and Does 1 through
50, Defendants. | Superior Court of California.
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San Diego County
v.
LAST DANCE, INC.; Coats Enterprise, Inc.; Michael Little, individually; Remax, Inc.; John Contento, SRO, a
No. GIN 054 088.
August 18, 2006.
Notice of Demurrer and Demurrer to Plaintiffs Complaint; Memorandum of Points and Authorities in Support
Thereof
Time: 1:30 p.m.
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE, that on October 20, 2006, at 1:30 p.m., or as soon thereafter as counsel may be heard, in
Department 31 of the above-entitled Court, located at 325 South Melrose Drive, Vista, California 92083, defendant JOHN
CONTENTO will and hereby does demur to the following causes of action in Plaintiffs Complaint, on the following
grounds:
DEMURRER TO THE FIRST CAUSE OF ACTION FOR FRAUD

1. The First Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
2. The First Cause of Action fails to state facts with sufficient particularity to support a cause of action based on fraud.
DEMURRER TO THE FOURTH CAUSE OF ACTION FOR NEGLIGENCE

3. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
300

DEMURRER TO THE FIFTH CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION
4. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action against JOHN CONTENTO.
5. The Fifth Cause of Action fails to state facts with sufficient particularity to support a cause of action based on fraud.
JOHN CONTENTO will also request that the Court deny Plaintiffs leave to amend the First, Fourth and Fifth Causes of
Action as JOHN CONTENTO can have no liability under those claims as a matter of law.
The Demurrer is based upon this Notice and Demurrer, the Memorandum of Points and Authorities, upon all papers and
pleadings on file herein, and upon such other oral and/or further material and argument as may be presented at the hearing on
the demurrer.
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN

I.
INTRODUCTION
According to the Complaint, Plaintiffs entered into a written agreement on or about May 29, 2005 to purchase the real
property located at 1657 Amante Court, Carlsbad, California (hereinafter Amante property) for $1.2 million. (See
Complaint, 17-22.) JOHN CONTENTO, a real estate appraiser, was retained to prepare an appraisal of the Amante
property for a purchase money loan. He was not retained by Plaintiffs.
Plaintiffs allege defendant JOHN CONTENTO represented the Amante property value was $1.2 million in his appraisal
signed July 20, 2005. (Complaint, 21-23.) Plaintiffs contend that the true value of the Amante property was $1,050,000.
(Complaint, 37(b).) Plaintiffs also contend that other misrepresentations were made in the appraisal report relating to
adjustments and comparable sales chosen. (Complaint, 35a-g.) Finally, Plaintiffs allege that JOHN CONTENTO
fraudulently withheld from his appraisal another comparable sale across the street from the Amante property that had a
pending sales price of between $999,000 and $1.1 million. (Complaint, 37(a).) Plaintiffs contend that in reliance on these
representations, they purchased the Amante property. (Complaint, 38.)
However, Plaintiffs also state in their Complaint that they never received the appraisal report prepared by JOHN
CONTENTO prior to close of escrow on July 29, 2005. (Complaint, 26-29.) Therefore, they could not have relied on
301
any information in it to purchase the property nor could they have been intentionally induced to rely on the
information.
Thus, Plaintiffs seek to recover under theories of liability that are not available to them against JOHN CONTENTO. Each
cause of action discussed herein fails to state a claim against JOHN CONTENTO. Based thereon, JOHN CONTENTO
demurs to each of the stated causes of action. JOHN CONTENTO will also request that this Court deny Plaintiffs leave to
amend the First, Fourth and Fifth Causes of Action against JOHN CONTENTO as Plaintiffs cannot assert those claims
against JOHN CONTENTO as a matter of law.
II.
THE COURT HAS THE DISCRETION TO DISMISS A CAUSE OF ACTION WHERE THE COMPLAINT FAILS TO
STATE SUFFICIENT FACTS TO SUPPORT IT.
Where a Complaint or cause of action fails to state sufficient facts to constitute a cause of action, a defendant may object by
way of demurrer. California Code of Civil Procedure $430.10(e)
III.
THE COURT MAY SUSTAIN A DEMURRER WITHOUT LEAVE TO AMEND.
Although leave to amend is liberally granted, it is not appropriate where the demurring party can have no liability as a matter
of law. See, Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436. Furthermore, the burden is on the plaintiff to
show he or she can cure the deficiencies in the Complaint by amendment. See weil, civil practice guide: civil procedure
before trial, 7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).
The facts of this case clearly show that JOHN CONTENTO has no liability to Plaintiffs as a matter of law under the First,
Fourth and Fifth Causes of Action. Plaintiffs will be unable to show any contract between Plaintiffs and JOHN CONTENTO
to prepare an appraisal of the Amante property. Furthermore, Plaintiffs have already admitted to not speaking or otherwise
communicating with JOHN CONTENTO or even having the appraisal to review prior to close of escrow. (Complaint,
25-28.) Therefore, Plaintiffs could not have relied on any of the information in that report to purchase the property.
As set out below, Plaintiffs will not be able to carry the burden of showing they can cure the deficiencies therein. If they try
to amend their Complaint to eliminate that Plaintiffs admitted to not receiving any information from the appraisal report prior
to close of escrow, they will be changing a material fact in their own original Complaint. JOHN CONTENTO, therefore,
respectfully submits that Plaintiffs should be denied leave to amend those causes of action.
IV.
THE COMPLAINT DOES NOT ALLEGE FACTS WITH SUFFICIENT PARTICULARITY TO SUPPORT THE
FRAUD CLAIMS AGAINST JOHN CONTENTO.
The Complaint contains two causes of action based on fraud: the First Cause of Action for Fraud and the Fifth Cause of
Action for Negligent Misrepresentation. Each of these claims are subject to demurrer because the Complaint does not contain
particular facts to support those claims.
Fraud must be plead with particularity. Comm. on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216. Every element must be alleged factually and specifically. Id. That is when it comes to alleging fraud, California law
requires more than mere notice to the defendant because fraud constitutes a serious attack on character, and fairness to the
302
defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Legal
conclusions alone will not support a cause of action for fraud. Thus, the policy of liberal construction of the pleadings ... will
not ordinarily be invoked to sustain a pleading defective in any material respect. Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73 (internal quotations omitted); Comm. on Childrens Television, Inc. v. General Foods, supra at 216 (citing
3 Witkin Cal. Procedure 2d ed. 1971 Pleading, 574). In order to plead sufficient facts to support the fraud claims, Plaintiffs
must plead facts which show how, when, where, to whom, and by what means the representations were tendered.
Stansfield, supra at 73.
The specificity requirement serves two purposes. The first is notice to the defendant to furnish the defendant with certain
definite charges which can be intelligently met [and the second 1] to enable the court to determine whether, on the facts
pleaded, there is any foundation, prima facie at least, for the charge of fraud. Comm. on Childrens Television Inc. supra at
716-17 (citations omitted). Plaintiffs have failed to allege facts with sufficient particularity so that JOHN CONTENTO can
intelligently meet the allegations. Moreover, Plaintiffs have failed to show there is a prima facie foundation for the charge of
fraud.
A. Plaintiffs Have Not Alleged Facts With Sufficient Particularity to Support the First Cause of Action for Fraud.
not have sufficient knowledge to warrant the representation, (3) with the intent to induce the Plaintiffs to act on the false
representation or concealed material fact, (4) that plaintiff relied upon, (5) to plaintiffs damage. Reed v. King (1983) 145
Cal.App.3d 261, 264. [Emphasis added.]
Plaintiffs have failed to allege who, when, where and how misrepresentations or omissions were made in their consideration
to purchase the Amante property. To support the fraud claim, Plaintiffs allege that JOHN CONTENTO made the
representations to them that the Amante property was worth $1.2 million in the appraisal signed July 20, 2005 by JOHN
CONTENTO prepared. (Complaint, 21-23.) Plaintiffs allege that JOHN CONTENTO made numerous misrepresentations
in his appraisal about the property with the intention to deceive and defraud the Plaintiffs and induce the Plaintiffs to act in
reliance on these representations in the manner hereinafter, or with the expectation that Plaintiffs would so act. (Complaint,
38.) Furthermore, Plaintiffs contend that in reliance on these representations, Plaintiffs were induced to, and did, pay
$1,200,000 for the Amante property. (Complaint, 38.)
However, earlier in their Complaint, Plaintiffs admit they never received the appraisal prepared by JOHN CONTENTO
until after close of escrow. (See Complaint, 24-28.) Therefore, by their own contentions in Plaintiffs Complaint, they
could not have possibly relied on or been induced by any representations in the JOHN CONTENTO appraisal report to
purchase the property since they admit in their own Complaint that they never received information from the appraisal report
from anyone prior to close of escrow. (Complaint, 25-28.)
B. Plaintiffs Have Not Alleged Facts With Sufficient Particularity to Support the Fifth Cause of Action for Negligent
Misrepresentation.
Negligence misrepresentation is a species of fraud, Loken v. Prudential-Award Properties (1995) 36 Cal.App.4th 263, 272;
Wilson v. Prudential Great Western Realty (1993) 15 Cal.App.4th 298, 306. Consequently, Plaintiffs must allege this cause
of action with particularity. Plaintiffs have failed to allege how, when, where, to whom and by what means the
representations in the appraisal report were tendered in making their decision to purchase the Amante property. Plaintiffs
admitted they closed escrow on the Amante property on July 29, 2005 before anyone provided the appraisal to them, on or
after August 18, 2005.
Plaintiffs admit that Agent Little did not provide the appraisal until after close of escrow. (Complaint, 24-25.) Plaintiffs
allege that the Plaintiffs were induced to, and did, pay $1,200,000 for the Amante property. (Complaint, 65.) But Plaintiffs
also contended earlier that they never received the JOHN CONTENTO appraisal prior to close of escrow. Plaintiffs never
allege who, if anyone, told them that the appraisal report estimated a value of the Amante property of $1.2 million nor when
303
the statement was made, if ever, before close of escrow. Furthermore, nowhere in their Complaint do Plaintiffs state that
anyone at any time before close of escrow told them about any information in the JOHN CONTENTO appraisal report that
they could have been induced to rely on to buy the Amante property. Therefore, the Fifth Cause of Action does not show a
prima facie foundation for the claim.
C. Plaintiffs Should be Denied Leave to Amend Those Causes of Action.

Plaintiffs could not have relied on JOHN CONTENTOs appraisal or its estimated opinion of value to purchase the Amante
property since they admit in their own Complaint they received the appraisal report on or about August 18, 2005, after close
of escrow on July 29, 2005. Furthermore, Plaintiffs never stated who relayed any information about the JOHN CONTENTO
appraisal report regarding the purchase of the Amante property prior to close of escrow, nor the information relayed. JOHN
CONTENTO submits that Plaintiffs will be unable to meet the burden of supporting their Causes of Action for Fraud and
Negligent Misrepresentation against JOHN CONTENTO. Any leave to amend should, therefore, be denied.
V.
THE COMPLAINT DOES NOT ALLEGE FACTS TO SUPPORT PLAINTIFFS FOURTH CAUSE OF ACTION FOR
NEGLIGENCE AGAINST JOHN CONTENTO.
Plaintiffs allege in their Complaint that JOHN CONTENTO owed the Plaintiffs a duty to exercise skill ordinarily exercised
by reputable members of the profession practicing in the same or similar circumstances in the performance of their respective
duties so as to prevent injury to plaintiff. (Complaint, 58.) To plead a cause of action based on negligence, the Plaintiffs
must establish the following elements: (1) duty to Plaintiffs; (2) breach; (3) causation; and (4) damages. Freidman v. Merck
& Co. (2003) 131 Cal.Rptr.2d 885, 890, 107 Cal.App.4th 454, rev. den.).
Plaintiffs cannot prove JOHN CONTENTO owed any duty to Plaintiffs. The absence of duty ends the analysis of liability.
Martinez v. Bank of America Nat. Trust & Sav. Assn. (2000) 98 Cal.Rptr.2d 576, 586, 82 Cal.App.4th 883. Plaintiffs never
stated that they retained JOHN CONTENTO to conduct an appraisal of the Amante property. Plaintiffs never contend they
spoke with or met JOHN CONTENTO. Plaintiffs never contended they entered into any contract with JOHN CONTENTO to
appraise the property. Instead, they contend in their Complaint that they asked Agent Little if the appraisal had been
completed and asked Agent Little repeatedly prior to close of escrow on the Amante property that they wanted to see the
appraisal and did not. (Complaint, 25-26.) Escrow closed on July 29, 2005. (Complaint, 26.) Plaintiffs admit that it was not
until on or about August 18, 2005 that Plaintiffs received the JOHN CONTENTO appraisal from Agent Little. (Complaint,
28.) Plaintiffs did not establish that JOHN CONTENTO owed Plaintiffs any duty.
A. Plaintiffs Should be Denied Leave to Amend the Fourth Cause of Action.

Plaintiffs will be unable to allege that JOHN CONTENTO had any duty to Plaintiffs nor will they be able to allege that the
appraisal report caused them damages. Plaintiffs admit they already purchased and closed escrow on the Amante property
after they received the appraisal report prepared by JOHN CONTENTO. Consequently, Plaintiffs wilt not be able to meet
the burden of showing that they can cure the deficiencies in the Fourth Cause of Action. Therefore, JOHN CONTENTO
requests that this Court sustain the demurrer to the Fifth Cause of Action without leave to amend.
VI.
CONCLUSION
304
Plaintiffs Complaint fails to state facts sufficient to support Causes of Action for Fraud, Negligent Misrepresentation and
Negligence. In addition, the Complaint does not contain facts with sufficient particularity to support the Fraud and Negligent
Misrepresentation claims. Therefore, JOHN CONTENTO requests that the Court sustain his Demurrer to the First, Fourth
and Fifth Causes of Action. Finally, because as a matter of law JOHN CONTENTO can have no liability under the facts of
this case for the First, Fourth and Fifth Causes of Action, JOHN CONTENTO requests that the Court deny Plaintiffs leave to
amend as to those causes of action against JOHN CONTENTO.
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN
End of Document
305
Notice of Motion and Motion to Strike; Memorandum of Points and

Authorities
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Jurisdiction:
California
Delivery Details
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Client ID:
1111
Comment:

San Diego County
v.
No. GIN 054 088.
August 18, 2006.
Notice of Motion and Motion to Strike; Memorandum of Points and Authorities
Boulevard, Suite 238, Woodland Hills, California 91364, Telephone: (818) 704-1464, Facsimile; (818) 704-1564, Attorneys
Time: 1:30 p.m.
TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD HEREIN:
PLEASE TAKE NOTICE that on October 20, 2006, at 1:30 p.m., or as soon thereafter as counsel may be heard in
Department 17 of the above-entitled Court, located at 325 South Melrose Drive, Vista, California 92083, the Motion to Strike
portions of the Complaint of Plaintiffs MARTHA UMMEL and VERNON UMMEL Defendant, JOHN CONTENTO will be
heard.
Filed and served herewith are the Motion to Strike and Memorandum of Points and Authorities in support of the Motion to
Strike.
JOHN CONTENTO hereby moves to strike portions of the Complaint on the following grounds:
1. Paragraph 41 (punitive damages) is improper and not drawn in conformity with the laws of this State.
This Motion to Strike is based upon this Notice of Hearing of Motion to Strike, the Memorandum of Points and Authorities in
support of the Motion to Strike, and upon such further written and oral evidence as may be presented before and at the
hearing of the Motion to Strike.
GAGLIONE & DOLAN
307
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN

I.
INTRODUCTION
This claim arises from the purchase by the Plaintiffs of a single family residence located at 1657 Amante Court, Carlsbad,
California (hereinafter referred to as the Amante property). The purchase price was $1.2 million. (Complaint, 22.) John
Contento, a licensed real estate appraiser, was retained by the lender to prepare an appraisal for its consideration in issuing a
purchase money loan to Plaintiffs. This appraisal is dated July 20, 2005. Escrow on this purchase closed July 29, 2005.
(Complaint, 26.) Plaintiffs admit in their Complaint that they did not obtain information from the appraisal report until on or
about August 18, 2005. (Complaint, 28.) However, in their Complaint, they contend that John Contento misrepresented the
value of the property to them. Plaintiffs contend that the true value of the Amante property was $1,050,000, (Complaint,
37(b).) Plaintiffs also contend that other misrepresentations were made in the appraisal report relating to adjustments and the
comparable sales chosen by John Contento. (Complaint, 35-37.) Plaintiffs contend they relied on these representations to
purchase the property for $1.2 million. (Complaint, 38.)
Plaintiffs filed causes of action of fraud, negligence and negligent misrepresentation against John Contento. Under the First
Cause of Action for Fraud, Plaintiffs have also requested punitive damages.
II.
LEGAL AUTHORITY FOR MOTION TO STRIKE
California Code of Civil Procedure Section 435(b)(1) provides:
Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to
strike the whole or any part thereof.
The statutory grounds for this Motion to Strike are stated in California Code of Civil Procedure 436, which provides:
The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems
proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court.
308
III.
ALL REFERENCES TO PUNITIVE DAMAGES AGAINST JOHN CONTENTO SHOULD BE STRICKEN
Under California Civil Code 3294(a), exemplary damages are allowable, as follows:
In an action for the breach of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in
addition to the actual damages, may recover damages for the sake of example and by way of punishing
the defendant.
Also under Civil Code 3294(c)(3). Fraud means an intentional misrepresentation, deceit or concealment of a material fact
known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.
In Plaintiffs Complaint, Plaintiffs make a claim for punitive damages against John Contento. (Complaint, 41.) However,
Plaintiffs have failed to plead the particular facts necessary to support a fraud claim. Comm. on Childrens Television Inc. v
General Foods Corp. (1983) 35 Cal.3d 197,216. Furthermore, Plaintiffs will be unable to provide sufficient facts to support
the fraud claims that relate to John Contentos appraisal report and their contention that information in that appraisal was
made to intentionally deceive and defraud the Plaintiffs and induce them to act in reliance on these representations.
(Complaint, 38.)
This is based on Plaintiffs admitting in their own Complaint that, despite numerous requests to their real estate agent, Little,
they never received the appraisal report or information in it until after close of escrow. (Complaint, 25, 24-26 [sic].)
Without receiving the appraisal report prior to close of escrow, and without the transmission of any information to them in
the appraisal report before close of escrow, they could not possibly have been deceived or induced to any act. Furthermore, in
Plaintiffs Complaint, Plaintiffs clearly state that defendant Agent Little, on behalf of defendants Remax and Horizon,
intentionally and fraudulently withheld the Appraisal from the Plaintiffs until after escrow closed on the Amante
property. No where in the Complaint is it contended that John Contento withheld the appraisal from Plaintiffs. There could
be no intentional misrepresentations made to Plaintiffs by John Contento.
When there is no support for fraud, there can be no request for punitive damages under California statutory law.
IV.
CONCLUSION
The Complaint contains allegations that are improper and are not drawn in conformity with the laws of this State.
Accordingly, it is requested that this Motion to Strike be granted as discussed above, without leave to amend.
GAGLIONE & DOLAN
By: <<signature>>
ROBERT T. DOLAN
LINDSAY MC MENAMIN
309
Attorneys for Defendant,

JOHN CONTENTO
End of Document
310
Memorandum of Points & Authorities in Reply to Plaintiffs

Opposition to Defendant Coats Enterprises Motion to Strike
Plaintiffs Claims for Attorneys Fees and Exemplary Damages in
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San Diego County
v.
No. GIN 054088.
August 18, 2006.
Memorandum of Points & Authorities in Reply to Plaintiffs Opposition to Defendant Coats Enterprises Motion to
Strike Plaintiffs Claims for Attorneys Fees and Exemplary Damages in Plaintiffs First Amended Complaint
Joseph L. Stine, Attorney at Law, CA Bar No. 86544, Law Otfice of Joseph L. Sttne, 380 South Melrose Drive, #306, Vista,
Dept.: 31
Time: 1:30 p.m.
Defendant COATS ENTERPRISE INC. (COATS) submits it Reply Memorandum of Points and Authorities in support of
its motion to strike allegations regarding attorneys fees and exemplary damages in Plaintiffs First Amended Complaint filed
in the instant action.
I.
PLAINTIFFS OFFER NO AUTHORITY THAT WOULD SUPPORT AN AWARD OF ATTORNEYS FEES IF
THEY PREVAIL IN THIS ACTION.
In Section IV of their memorandum of points and authorities, Plaintiffs argue that they have alleged the existence of a verbal
agreement between themselves and this Defendant. They go on to make a remarkable claim: Implied in that agreement was
that the prevailing party would be entitled to attorneys fees for any legal proceeding arising out of the agreement. (Plaintiffs
Points & Authorities p. 5,1.11-13)
This claim is pure smoke and mirrors. To allow Plaintiffs attorney fees by implication would emasculate the well-established
general rule in civil litigation that each party bears its own attorney fees and costs. There is absolutely no legal authority
suggesting that such an award can be conferred by implication in a verbal agreement.
312
In weak defense of their argument, Plaintiffs offer a wholly convoluted construction of Cal. Code of Civ. Proc. 1021 as
supporting an attorneys fee award if implied by an agreement between the parties litigant. A close reading of the Section
reveals that the agreement, express or implied, of the parties references agreements between attorneys and their clients to
pay for legal services. The Section provides that attorneys are compensated pursuant to agreements with their clients
[e]xcept as attorneys fees are specifically provided for by statute...
Plaintiffs construction of the statute runs afoul with well --established authority and precedent. For example, Witkin notes
that in civil litigation there is a presumption against fee shifting. (See 7 Witkin, Cal. Proc. 4th ed., 145, p. 659.) Cal. Code
of Civ. Proc. 1021 is the California version of the American rule under which each party must pay it own legal fees.
(Covenant Mutual Insurance Co. v. Young (1986) 179 Cal. App. 3d 318, 321) Attorney fees also are not recoverable in an
action for fraud. (Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal. App. 3d 888, 892)
Plaintiffs have alleged no factual basis for recovering attorney fees by contract or statute.
II.
PLAINTIFFS CAN NOT RECOVER EXEMPLARY DAMAGES BASED ON THE FACTS AS PLED IN ANY OF
THEIR CAUSES OF ACTION.
In Section III of their Points and Authorities, Plaintiffs cite two cases in support of their argument that exemplary damages
are supported in their fraud based causes of actions (i.e., Causes of Actions 1,2, and 6) and further suggest that a breach of
implied covenant of good faith and fair dealing (i.e., Cause of Action 3) is so similar to a fraud as to support fraud-based
exemplary damages. They first cite as authority Oakes v. McCarthy Co, (1968) 267 Cal App. 2d 231, a case involving a
builders fraudulent concealment of unstable soil beneath a home sold to the plaintiffs. They further cite Stokes v. Henson
(1990) 217 Cal App. 3d 187, a case about an investment adviser liable for constructive fraud by taking the money from
investors without advising them of the highly speculative nature of their investments.
These cases do not help Plaintiffs as against Defendant COATS in this action. Nowhere dp Plaintiffs allege facts with respect
to the loan transaction which would support the perpetration of a fraud by Agent Little in that undertaking. In Oakes and
Stokes, the plaintiffs could recover in fraud and be awarded exemplary damages based on duties that the defendants had in
transactions involving them. Here Plaintiffs do not allege that Agent Little did anything improper in connection with the
mortgage loan, the only transaction for which Defendant COATS, as Agent Littles principal, has any potential liability in
law.
Once again, Plaintiffs bark up the wrong tree. There is no allegation of fraud supporting exemplary damages for any act or
omission of Agent Little in facilitating the loan. Plaintiff has not and can not state a case for a fraud-based award of
exemplary damages against Defendant COATS based on the facts as alleged in this action.
III.
CONCLUSION
For the reasons stated above, there is no basis in law for any award of either attorneys fees or exemplary damages against
Defendant COATS and, accordingly, all allegations referencing either recovery should be stricken for the First Amended
Complaint.
Dated: 10-13-06
LAW OFFICE OFLOSEPH L. STINE
<<signature>>
313
By Joseph L. Stine
Attorney for Defendant COATS ENTERPRISES
End of Document
314
Memorandum of Points and Authorities in Support of Defendant,

Ronald Salzetti, M.D.S Motion for Sanctions
Francisco LUA, a minor, by and through his Guardian ad litem, Claudia Camarillo, Plaintiff, v. Ronald SALZETTI,
M.D., and Does 1 through 20, inclusive, Defendant. | Superior Court of California
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Superior Court of California,
Central Division.
San Diego County
Francisco LUA, a minor, by and through his Guardian ad litem, Claudia Camarillo, Plaintiff,
v.
Ronald SALZETTI, M.D., and Does 1 through 20, inclusive, Defendant.
Case No.: GIC 833829.
August 19, 2005.
Memorandum of Points and Authorities in Support of Defendant, Ronald Salzetti, M.D.S Motion for Sanctions
I/C Judge: Ronald S. Prager.

Defendant Ronald Salzetti, M.D., by and through his attorneys, submits this Memorandum of Points and Authorities in
Support of his Motion for Sanctions against Plaintiff Francisco Lua and its attorney of record, Donald Loftus.
I.
STATEMENT OF FACTS
Trial was scheduled for July 27, 2005. On June 17, 2005, plaintiff filed a motion to disqualify the defense firm of Neil,
Dymott, for substitution of expert witness (Dr. Frumovitz), to preclude defense use of tainted expert, and for sanctions per
CCP 2023. (See Declaration of Bonny Hsu at 2). The Court found that Neil Dymott had not engaged in any improper
conduct with plaintiffs expert, Dr. William Frumovitz, and denied plaintiffs motion to substitute Dr. Frumovitz for another
expert. (See Court Ruling after Oral Argument attached as Exhibit A).
On July 22, 2005 plaintiff appeared ex parte and indicated for the first time that none of his experts were available for trial
during the first two weeks of August. (See Declaration of Bonny Hsu at 3). The Court continued the trial to August 19,
2005. (See Declaration of Bonny Hsu at 3). On August 2, 2005 plaintiff appeared ex parte for leave to augment his expert
witness list with a new standard of care obstetrician/gynecology expert, Dr. William Hinderstein. (See Declaration of Bonny
Hsu at 4; See Plaintiffs ex parte application to substitute ob/gyn expert and Declaration of Don Loftus attached as Exhibit
B). Plaintiff represented to the Court that his standard of care expert, Dr. William Frumovitz, refused to testify for the
plaintiff at trial. (See Plaintiffs ex parte application to substitute ob/gyn expert and Declaration of Don Loftus attached as
Exhibit B). Plaintiff was permitted to substitute Dr. Frumovitz with Dr. Hinderstein as his standard of care expert. (See
Declaration of Bonny Hsu at 4).
Defense counsel has since learned from Dr. Frumovitz counsel, Moses Lebovits, that the deterioration in Loftus and Dr.
Frumovitz relationship was not of Dr. Frumovitz making. (See Declaration of Bonny Hsu 5). In fact, Dr. Frumovitz was
prepared to testify on behalf of Francisco Lua at the time of trial. (See Declaration of Bonny Hsu 5). Mr. Loftus made
unsubstantiated written accusations and threats against Dr. Frumovitz, including threats of legal action. (See Declaration of
Bonny Hsu 5). Mr. Loftus written threats and accusations made it impossible for Dr. Frumovitz to testify on behalf of
Francisco Lua at the time of trial. (See Declaration of Bonny Hsu 5). A declaration signed by Moses Lebovits will be filed
with the Court prior to the September 16, 2005 hearing date. (See Declaration of Bonny Hsu 5).
Loftus should not be rewarded for his erratic and abusive behavior. Loftus routinely makes unsubstantiated accusations about
316
defense counsel and this Court. Loftus recent accusations against Dr. Frumovitz were likewise unsubstantiated. Loftus
intentional and irrational behavior ensured Dr. Frumovitz would refuse to testify on behalf of the plaintiff on the eve of trial.
Loftus aberrant litigation tactics are intended to unnecessarily delay trial and increase litigation costs. These actions do not
justify grounds for relief.
II.
LEGAL ARGUMENT
A. The Legal Standard for a Motion for Sanctions
Code of Civil Procedure section 128.6(a) provides in part, Every trial court may order a party, the partys attorney, or both
to pay reasonable expenses as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary
delay. Code of Civil Procedure section 128.7 requires every pleading, petition, motion, or other similar paper to be signed.
Code Civ. Proc. 128.7, subd. (a). The signature certifies: (1) the pleading is not being presented primarily for an improper
purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) [t]he claims...are
warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law, and (3) [t]he allegations and other factual contentions have evidentiary support. Code Civ.
Proc. 128.7, subd. (b). [S]ection 128.7... requires only that the conduct be objectively unreasonable. In re Marriage of
Reese & Guy (1999) 73 Cal.App.4th 1214, 1221. If, after notice and a reasonable opportunity to respond, the court
determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the
violation. Code Civ. Proc. 128.7, subd. (c).
Loftus unusual litigation tactics are illogical, without merit, and intended for the sole purpose of harassing the defense and
increasing litigation costs. Plaintiff and his counsel must be sanctioned for filing motions in bad faith, engaging in frivolous
allegations and abusive litigation tactics. Loftus must be sanctioned because of his persistent bad-faith contentions that are
brought for the sole purpose of requiring defendant and his attorneys to needlessly waste time and money defending those
allegations.
B. Defendant Complied With the Procedural Requirements for a Motion for Sanctions
A motion for sanctions under Code of Civil Procedure section 128.7 must be made separately from any other motion. Also,
the party subject to the sanction must be given 21 days to withdraw or correct the offending document before such a motion
can even be filed with the Court. Pacific Trends Lamp & Lighting Products, Inc. v. J. White, Inc. (1998) 65 Cal.App.4th
1131, 1136. The procedural requirements are strictly complied or the Court cannot hear the motion. Goodstone v. Southwest
Airlines (1998) 63 Cal.App.4th 406, 418-419.
The procedural requirements are satisfied. The motion for sanctions was served on August 19, 2005. The hearing date is
scheduled for twenty-one (21) days after service of this motion. Therefore, the Court may hear the merits of the motion.
C. Plaintiffs request for leave to augment his expert witness list and subsequent ex parte application to substitute Dr.
Hinderstein violate Code of Civil Procedure Section 128.7(b)
Making unsubstantiated accusations and threats against an expert so he will not testify for the plaintiff is not a grounds for
relief Accordingly, plaintiffs motion to augment his expert witness list violates Code of Civil Procedure section 128.7(b). The
Court found defendant had not engaged in improper conduct with plaintiffs expert, Dr. Frumovitz. Plaintiff failed to establish
any justifiable rationale for disqualifying Neil Dymott or substituting Dr. Frumovitz. Loftus refused to accept the Courts
determination and judicial authority. Loftus made uncorroborated threats and accusations against Dr. Frumovitz ensuring he
would refuse to testify for the plaintiff. Loftus manipulation of the judicial system and judicial process made certain he would
be permitted to substitute Dr. Frumovitz for Dr. Hinderstein.
317
The Court must consider any tactical abuse underlying plaintiffs motions. Loftus has been attempting to designate Dr.
Hinderstein for several months. This is the same expert plaintiffs counsel wanted to add when he learned Dr. Salzetti would
comment on his own care and treatment. Mr. Loftus litigation tactics, including threatening his own expert on the eve of trial
to guarantee he would not testify for the plaintiff, are inappropriate and should not be rewarded.
D. Loftus should not be rewarded for his repetitive bad faith litigation tactics
Loftus current allegations against his own expert are only another example of his repetitive bad faith tactics used in an
attempt to improperly delay and increase litigations costs for all involved. Loftus unsubstantiated and abusive accusations
are a continuing practice protocol of his bizarre litigation tactics. Throughout this litigation, Loftus habitually attacked the
trustworthiness and character of defense counsel. Loftus has also attacked the impartiality of the Court and routinely accused
this Court of being an advocate for the defense.
Loftus paranoia and belligerent conduct extends far beyond accusing Neil Dymott, Dr. Frumovitz, and this Court of
inappropriate behavior. Loftus has made the same or similar allegations against other local attorneys, experts, and judges in
San Diego. In another lawsuit, Loftus objected to Judge Lisa Guy-Schall presiding at trial, also accusing her of being biased.
(See Objection to Judge Lisa Guy-Schall Presiding at Trial attached as Exhibit C). In a second objection to Judge Guy-Schall
presiding at trial, Loftus went so far as suggesting Judge Guy-Schall granted a continuance of the trial date in hopes that
plaintiff would die from her injuries and thereby free up the judges calendar and reduce the defendants exposure for
damages. (See Objection to Judge Lisa Guy-Schall Presiding at Trial attached as Exhibit D). Loftus numerous accusations
are unsubstantiated and devoid of reason.
Loftus present conduct is not unique to this case or the individuals involved. This is not the first time Loftus has made
unsubstantiated accusations or threats against defense attorneys, judges, or his own experts. This unprofessional behavior is
characteristic of Loftus custom and practice, and he should not be rewarded for his conduct.
E. Under Code of Civil Procedure 128.7, plaintiff and His Counsel Should Pay the Reasonable Attorneys Fees
Incurred for the Defense of Dr. Salzetti
Monetary sanctions issued under Code of Civil Procedure section 128.7 can be awarded against both the party and his
attorney. Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467. When sanctions are imposed via noticed motion, the court
may order the payment of some or all of the reasonable attorneys fees and other expenses incurred as a direct result of the
violation. Code Civ. Proc. 128.7, subd. (d). A sanction imposed for violation of subdivision (b) shall be limited to what is
sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Ibid. Plaintiff and his
counsel have violated Code of Civil Procedure section 128.7, subdivisions (b)(1), (b)(2), and (b)(3). Accordingly, the Court
may impose sanctions against plaintiff, his attorney or both.
Defendant has been severely prejudiced by Loftus delay tactics and bad faith accusations. The original trial date was
scheduled for July 27, 2005. Despite knowledge of the trial date for several months, plaintiff waited until July 22, 2005 to
inform defendant and the Court that his experts were not available during the first two weeks of August. Plaintiff
subsequently represented to the Court on August 2, 2005 that Dr. Frumovitz refused to testify for plaintiff. Loftus accusations
and threats to Dr. Frumovitz following the Courts ruling denying his motion to substitute Dr. Frumovitz were intended to
ensure Dr. Frumovitz would refuse to testify for plaintiff at the time of trial.
Defendant has incurred substantial expense in preparing for the deposition of Dr. Frumovitz, traveling to Los Angeles to take
the deposition of Dr. Frumovitz, compensating Dr. Frumovitz for his time during deposition, paying court reporter fees,
purchasing a copy of his deposition transcript, and preparing for trial. (See Declaration of Bonny Hsu at 6). Upon review of
billing records, defendant believes he has incurred $2,442.00 in attorneys fees for preparing for, traveling to Los Angeles,
and taking the deposition of Dr. Frumovitz. (See Declaration of Bonny Hsu at 6). This amount does not take into
consideration the amount of attorneys fees defendant has expended in preparing for trial. (See
318
Declaration of Bonny Hsu at 6). Defendant incurred $1,554.30 for Dr. Frumovitz fees and court reporter fees associated
with Dr. Frumovitz deposition. (See Declaration of Bonny Hsu at 6; See copies of checks paid to Dr. Frumovitz and billing
statement from Peterson & Associates attached as Exhibit E).
Defendant also incurred significant expense in having defense expert, Dr. Thomas Moore, review the two depositions
transcripts of Dr. William Frumovitz and rendering opinion regarding issues posed by Dr. Frumovitz. (See Declaration of
Bonny Hsu at 7). Upon review of billing statements, defendant believes he has incurred $1,200.00 in compensating Dr.
Moore for reviewing the deposition transcripts of Dr. Frumovitz and rendering opinions on his testimony. (See Declaration of
Bonny Hsu at 7).
Defendant attempted to make a reasonable estimate as to the expected length of the deposition of Dr. Hinderstein. (See
Declaration of Bonny Hsu at 8). The Court ordered Loftus pay for merely two hours of Dr. Hindersteins fees for
deposition. (See Declaration of Bonny Hsu at 8). Defendant was not aware Dr. Hinderstein had ten opinions regarding Dr.
Salzettis care and treatment (compared to the one opinion of Dr. Frumovitz). (See Declaration of Bonny Hsu at 9). Dr.
Hindersteins deposition lasted six hours, and defendant was forced to compensate Dr. Hinderstein for four hours of
deposition testimony, resulting in $2,400.00 of additional fees. (See Declaration of Bonny Hsu at 9; See copies of checks
paid to Dr. Hinderstein attached as Exhibit F). Upon review of the billing, defendant believes he has incurred trial. (See
Declaration of Bonny Hsu at 10). Defendant anticipates he will incur at least $1,000.00 in additional expenses for Dr.
Moore to review and comment on the opinions of Dr. Hinderstein. (See Declaration of Bonny Hsu at 10).
Dr. Salzetti seeks sanctions for the attorneys fees and expenses incurred from plaintiffs filing of the motion to augment his
expert witness. Currently, these fees total $10,604.30. (See Declaration of Bonny Hsu at 10). Dr. Salzetti requests plaintiff
and his counsel pay this amount, jointly and severally, for their violations of Code of Civil Procedure sections 128.7.
III.
CONCLUSION
Based upon the foregoing reasons, Dr. Salzetti respectfully requests the Court grant his motion and sanction plaintiff and his
counsel for their violation of Code of Civil Procedure 128.6 and 128.7.
End of Document
319
Cross Complaint for Indemnity, Equitable Comparative Indemnity;

Declaratory Relief; Violation of Business and Professions Code
Section 17200 et seq.; Declaratory Relief and Preliminary and
Permanent Injunctions
Shirley PRESKITT and Jim Ristas, Plaintiff, v. W.E. BEDDING CORP., DBA Ortho Mattress, aka Ortho Mattress;
John Grasson Jr.; and Does 1-80; Inclusive, Defendants. W.E. Bedding Corp., aka Ortho Mattress Co.,
Cross-Complainant, v. Galley Corp., DBA Mattress Gallery; Shirley Preskitt; Jim Ristas; Roe Corporation; and Roes
1-25; Inclusive, Cross-Defendants. | Superior Court of California.
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San Diego County
Shirley PRESKITT and Jim Ristas, Plaintiff,
v.
W.E. BEDDING CORP., DBA Ortho Mattress, aka Ortho Mattress; John Grasson Jr.; and Does 1-80; Inclusive,
Defendants.
W.E. Bedding Corp., aka Ortho Mattress Co., Cross-Complainant,
v.
Galley Corp., DBA Mattress Gallery; Shirley Preskitt; Jim Ristas; Roe Corporation; and Roes 1-25; Inclusive,
Cross-Defendants.
No. GIN 034288.
June 23, 2005.
Cross Complaint for Indemnity, Equitable Comparative Indemnity; Declaratory Relief; Violation of Business and
Professions Code Section 17200 et seq.; Declaratory Relief and Preliminary and Permanent Injunctions
Christopher J. Irvin, State Bar No. 81962, Attorney at Law, 1541 Ocean Avenue, Suite 200, Santa Monica, CA 90401,
Telephone: (310) 451-7857, Attorneys for Defendant, And Cross-Complainant, W.E. Bedding Corp., aka Ortho Mattress
Corp.
Hon. Lisa Guy-Schall.
(FILED CONCURRENTLY WITH ANSWER TO SECOND AMENDED COMPLAINT)

COMES NOW, the Cross-Complainant, W.E. BEDDING CORP., aka ORTHO MATTRESS, and for a cause of action
against Cross-Defendants, and each of them, complains and alleges as follows:
FIRST CAUSE OF ACTION

(For Indemnity and Declaratory Relief against Cross-Defendants Gallery Corp. and ROES 1 through 25, inclusive)
1. Cross-Complainant, W.E. BEDDING CORP. is a corporation that has changed its name to ORTHO MATTRESS CO. and
is doing business in Encinitas, California.
2. Cross-Defendant, Gallery Corp. is a business incorporated under the laws of the one of the States of the United States and
is doing business in Encinitas, California under the name Mattress Gallery.
3. Cross-Defendant, Shirley Preskitt is an individual residing in the county of San Diego, California.
4. Cross-Defendant, Jim Ristas is an individual residing in the State of California.
5. Cross-Complainant is not aware of the true names and capacities, whether individual, corporate, associate or otherwise of
the Cross-Defendants named herein as ROE 1 through 15, and Roe Corporation, inclusive, and therefore sues said
Cross-Defendants by such fictitious names. Cross Complainant will amend the Cross-Complaint to allege their true names
321
and capacities when ascertained. Cross-Complainant is informed and believes and thereon alleges, that each of the
Cross-Defendants designated herein as ROE were negligent in some manner or are legally, lawfully or otherwise responsible
in some manner for the occurrences or happenings herein alleged, and that Plaintiffs injuries were thereby proximately
caused or contributed to.
6. Cross-Complainant is informed and believes, and thereon alleges that all of the Cross-Defendants, and each of them,
including the ROE Cross-Defendants, at all times herein mentioned were the agents, employees and servants of each of the
other Cross-Defendants, and each of them, and at all times pertinent hereto, were acting within the course and scope of said
employment and agency.
7. On or about June 10, 2005, Plaintiffs filed their Second Corrected Amended Complaint against Cross-Complainant seeking
damages for personal injuries and other damages Plaintiffs allegedly sustained as a result of interference with their business,
unfair business competition, age and gender harassment, infliction of emotion distress, defamation and negligence.
Cross-Complainant hereby refers to and incorporates herein by this reference, without admitting any of the allegations
thereof, the Second Corrected Amended Complaint filed by Plaintiffs Shirley Preskitt and Jim Ristas.
8. If Plaintiffs sustained damages as alleged in their amended complaint, these damages were caused, entirely or in part, by
Cross-Defendants, and each of their lack of due care in the management of their own affairs, their failure to investigate or
otherwise resolve their employees complaints of discrimination, harassment and intimidation, their failure to communicate
with and/or resolve issues with tenants in the building of their lease and by failing to follow reasonable conduct to resolve
business disputes of mutual interest.
9. Cross-Complainant has filed an Answer to the Second Corrected Amended Complaint denying each and every allegation
set forth in said complaint and continues to deny that it was in any way negligent or otherwise at fault for injury or damage to
Plaintiffs, whether as alleged in the Complaint or otherwise.
10. That, as between Cross-Complainant and Cross-Defendants, responsibility, if any, for the damages claimed by Plaintiffs
rests entirely on Cross-Defendants and as a result Cross-Defendants, and each of them, are obligated to indemnify
Cross-Complainant for any sums that Cross-Complainant may be compelled to pay as the result of any damages, judgments,
settlements or other awards recovered by Plaintiffs against Cross-Complainant.
SECOND CAUSE OF ACTION

(For Equitable Comparative Indemnity Against Cross-Defendants Gallery Corp. and ROES 1 through 25)
11. Cross-Complainant repeats and re-alleges each and every allegation contained in paragraphs 1 through 10, of this
Cross-Complaint and incorporates same herein by this reference as though set forth verbatim.
12. If it should be found that Cross-Complainant was in some manner responsible for the injuries being claimed by-Plaintiffs
and the damages found to have been sustained by Plaintiffs were partially caused or contributed to by the negligence, lack of
care, or otherwise unlawful conduct of Cross-Defendants, it is necessary that a pro rata degree of fault be apportioned to the
actions of Cross-Defendants so that Cross-Complainant can recover from Cross-Defendants partial indemnity in amounts
consistent with their degree of negligence and/or fault.
THIRD CAUSE OF ACTION

(For Declaratory Relief Against Cross-Defendants, Gallery Corp. and ROES 1 through 25)
13. Cross-Complainant repeats and re-alleges each and every allegation contained in paragraphs 1 through 12 of their
322
14. An actual controversy now exists between Cross-Complainant and Cross-Defendants, and each of them, concerning their
rights and liabilities vis-a-vis themselves and Plaintiffs, with regard to the ultimate responsibility for Plaintiffs alleged
damages, if any, and with regard to the right to receive and give indemnification.
15. Cross-Complainant desires a judicial determination of the respective rights and duties of Cross-Defendants and
Cross-Complainant with respect to the alleged damages claimed in the complaint. In particular, Cross-Complainant desires a
declaration of the comparative liability of Cross-Complainant and Cross-Defendants for those damages, and a declaration of
Cross-Defendants responsibility for indemnity and/or comparative indemnity for any sums that Cross-Complainant may be
compelled to pay and for which Cross-Defendant is determined responsible, entirely or in part.
16. Such a declaration is necessary and appropriate at this time in order that Cross-Complainant may ascertain its rights and
duties with respect to Plaintiffs claim for damages. Furthermore, the claims of Plaintiffs and the claim of Cross-Complainant
arise out of the same transaction and determination of both in one proceeding is necessary and appropriate in order to avoid
the multiplicity of actions that would result if Cross-Complainant is required now to defend against the claims of Plaintiffs
and then bring a separate action against Cross-Defendants for indemnification.
FOURTH CAUSE OF ACTION

(Violation of Section 17200 of the Business and Professions Code against Cross-Defendants, Gallery Corp., Shirley
Preskitt, Jim Ristas and ROES 1 7 through 25)
17. Cross-Complainant repeats and re-alleges each and every allegation contained in paragraphs 1 through 7 of this
18. Cross-Complainant and Cross-Defendants are business competitors. They operate their businesses from 1092 El Camino
Real, Encinitas, California, selling mattress and related bedding items.
19. Business and Professions Code Section 17200 et seq. prohibits the use of unfair and unlawful business practices.
20. Cross-Defendants, individually and through their officers, partners, agents and employees have violated Business and
Professions Code 17200 et seq. by claiming they have a contract with Cross-Complainant whereby Cross-Complainant is to
share customers with Cross-Defendants. Such a contract, to share customers between business competitors, if it existed,
would violate the public policy of both the State of California and the United States.
21. Cross-Complainant has denied the existence of said contract and has told Cross-Defendants that it did not want to share
customers. Cross-Defendants, however, continue to insist that Cross-Complainant share customers and has engaged in a
campaign of harassment and intimidation against Cross-Complainant and its employees so as to enforce Cross-Defendants
illegal demands.
22. Cross-Defendants have called Cross-Complainants employees as being fat, lazy, and to the female employees as bitches
in their effort to cause Cross-Complainant to share customers, in addition, Cross-Defendants use intimidation to prevent
Cross-Complainant from its exercise of its first amendment rights of. free speech so as divert customers away from
Cross-Defendants.
23. As a proximate result of Cross-Defendants illegal demands and intimidation, Cross-Complainant has lost sales and
customers and continues to lose sales and customers.
24. Business and Professions Code Section 17203 specifically provides for injunctive relief against this illegal conduct.
323
FIFTH CAUSE OF ACTION

(For Declaratory Relief and Preliminary and Permanent Injunctions)
25. Cross-Complainant repeats and re-alleges each and every allegation contained in paragraphs 1 through 7 of the first cause
of action and paragraph 18 through 24 of the fourth cause of action of this Cross-Complaint and incorporates same herein by
this reference as though set forth verbatim.
26. In the last few years and continuing to the present time, Cross-Defendants, and each of them, wrongfully and unlawfully
are demanding that Cross-Complainant share its customers with Cross-Defendants.
27. Cross-Complainant has on numerous occasions told Cross-Defendants that it did not want to share customers.
Furthermore, such an agreement would be illegal and against public policy as Cross-Complainant and Cross-Defendants are
business competitors.
28. Cross-Complainant has no adequate remedy at law for the injuries it is incurring in that Cross-Complainant has no way of
determining if it has lost customers because of Cross-Defendants illegal conduct. Further, Cross-Defendants continue to
make demands on Cross-Complainant to share customers.
29. Code of Civil Procedure Sections 526 and 527 authorize the granting of an injunction when it appears that a court order is
needed to restrain the commission or continuance of an act and to prevent unlawful conduct.
WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants and each of them as follows:
1. For a judicial declaration of the Cross-Defendants responsibilities and liabilities for the damages claimed by the Plaintiffs,
if any, is found to exits;
2. For a declaration of the amount for which Cross-Defendants are obligated to indemnify Cross-Complainant;
3. For an order requiring Cross-Defendants to show cause, if any they have, why they should not be enjoined from claiming a
contract to share customers with Cross-Complainant, during the pendency of this action;
4. For a preliminary injunction, and a permanent injunction, enjoining Cross-Defendants and each of them, and their agents
and employees, and all persons acting under or in concert with, or for them:
a. From claiming that there is a contract to share customers with Cross-Complainant; and
b. From approaching and/or making demands on Cross-Complainants employees to share customers with them.
5. Restitution of losses caused to Cross-Complainant by Cross-Defendants conduct;
6. For attorney fees pursuant to Business and Professions Code;
7. For cost of suit incurred herein; and
8. For such other and further relief as the Court may deem just and proper.
DATED: June 23, 2005
LAW OFFICES OF CHRISTOPHER J. IRVIN
By <<signature>>
CHRISTOPHER J. IRVIN
324
Attorney for Cross-Complainant,

W.E. BEDDING CORP., aka ORTHO MATTRESS
End of Document
325
Memorandum of Points and Authorities in Support of Plaintiffs

Motion for Attorneys Fees
Ozzie MANCINELLI, an individual, Plaintiff, v. Kathleen SIEWAK, an individual; Ferdinand Barlow, an individual,
Rusties Unique Designs, Inc., a Florida corporation, Defendants. | Superior Court of California
Search Details
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Jurisdiction:
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Delivery Details
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Client ID:
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Comment:
Ozzie MANCINELLI, an individual, Plaintiff, v. Kathleen..., 2004 WL 5351882...

Superior Court of California,
Central Division (Hall of Justice).
San Diego County
Ozzie MANCINELLI, an individual, Plaintiff,
v.
Kathleen SIEWAK, an individual; Ferdinand Barlow, an individual, Rusties Unique Designs, Inc., a Florida
corporation, Defendants.
No. GIC 805629.
July 23, 2004.
Memorandum of Points and Authorities in Support of Plaintiffs Motion for Attorneys Fees
Scott A. McMillan, CBN 212506, Michelle D. Volk, CBN 217151, the Mcmillan Law Firm, APC, 4670 Nebo Drive, Suite
200, La Mesa, CA 91941-5230, Tel (619)464-1500 // Fax (206) 600-5095, e-mail: sam0661@sbcglobal.net, Attorney for
plaintiff, Ozzie Mancinelli.
I/C Judge: Hon. Thomas O. LaVoy.
Hearing Date: August 20, 2004
Time: 8:30 a.m.
Dept. 53
TABLE OF CONTENTS
I. INTRODUCTION .........................................................................................................................................................................
II. LABOR CODE SECTION 218.5 REQUIRES THAT THE COURT SHALL AWARD ATTORNEYS
FEES TO THE PREVAILING PARTY IN AN ACTION FOR THE NON-PAYMENT OF WAGES .............
III. DEFENDANTS REQUESTED ATTORNEYS FEES AT THE INITIATION OF THIS CASE .................
IV. UNDER CALIFORNIA LAW, THE COURT SHOULD USE THE LODESTAR METHOD TO
DETERMINE PLAINTIFFS AWARD FOR ATTORNEY FEES .................................................................................
A. Plaintiff is entitled to attorneys fees for 1286.2 hours, the amount of hours reasonably worked. .................
B. Plaintiff is entitled to a reasonable rate for attorneys fees ............................................................................................
1. The Prevailing Rates Charged By Attorneys of Similar Skill and Experience for Comparable Legal
Services In the San Diego Community. .......................................................................................................................................
2. Nature of the Work Performed ..................................................................................................................................................
3. The Attorneys Customary killing Rates ................................................................................................................................
10
327
C. The Court may enhance the lodestar amount to determine an appropriate fee award .........................................
12
VI. CONCLUSION ...........................................................................................................................................................................
14
California Decisional Authority
California Common Cause v. Duffy (1987) 200 Cal. App. 3d 730, 753 ...................................................
Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181...........................................................
3, 4
Municipal Court v. Bloodgood (1982) 137 Cal. App. 3d 29, 47 ..................................................................
Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 321...................................................................................
6, 12
Rebney v. Wells Fargo Bank (1991) 232 Cal. App. 3d 1344, 1349 ............................................................
Serrano v. Priest (1977) 20 Cal. 3d 25, 48-49 ...................................................................................................
Serrano v. Unruh (1982) 32 Cal. 3d 621, 639 ....................................................................................................
7, 9
California Statutory Authority

Labor Code 200 .......................................................................................................................................................
Labor Code 218.5 ...................................................................................................................................................
2, 5
Federal Decisional Authority Davis v. City & County of San Francisco (9th Cir. 1992) 976
F2d 1536, 1544..............................................................................................................................................................
Gates v. Deukmejian (9th Cir. 1993) 987 F2d 1392, 1406 ............................................................................
Missouri v. Jenkins (1989) 491 U.S. 274 .............................................................................................................
Plaintiff Ozzie Mancinelli requests an award of attorneys fees, as follows:

Name of Provider
Rate Requested
Hours Expended
Value of Services
Scott A. McMillan
$250
864.85
$ 216,212.50
Michelle D. Volk
$185
340.48
$ 62,988.80
Thomas McKinney
$185
2.00
$ 370.00
Kenneth Hamilton
$185
42.60
$ 7,881.00
328
Alvin Kalmanson
$350
2.22
$ 777.00
Law Clerks
$75
34.05
$ 2,553.75
1286.20
$ 290,783.05
SubTotal
Fee enhancement
2x
$ 290,783.05
Total Fee Request
$ 581,566.10
I. INTRODUCTION
Plaintiff and defendants had a verbal agreement employing Mr. Mancinelli as CEO of Rusties Unique Designs, Inc., under
the following terms: an annual salary of $50,000 per year; a signing bonus of $10,000; a per-doll commission on all dolls
sold; and a 30% ownership interest in defendant Rusties.
Defendants verbally accepted a contract containing the above terms, sent by Mr. Mancinelli via e-mail to defendants. Based
on this agreement, plaintiff terminated his current employment of ten years, sacrificing an annual salary of $110,000.
Immediately, defendants sent Mr. Mancinelli work to perform from his home in California on behalf of Rusties.
Defendants orally represented their intent to perform the initial contract terms, and continually assured Mr. Mancinelli they
would make good on their promises. Based on this representation, plaintiff worked for defendants for approximately five
months. Ultimately, however, defendants failed Mr. Mancinelli both in tendering a 30% interest in the company.
On June 9, 2002, defendants sent a letter of termination that arrived the day plaintiff left for a ten-day business trip to Asia.
Upon plaintiffs return, defendants refused to pay wages and expenses beyond June 9, 2002, although the trip was at
defendants request.
On February 14, 2003, plaintiff filed a lawsuit against defendants alleging the following causes of action: breach of contract;
breach of implied covenant of good faith and fair dealing; intentional misrepresentation; wrongful interference with contract;
wrongful interference with prospective economic advantage; and unfair business practices.
Defendants argued plaintiff was merely an at-will employee and maintained they only offered a $50,000 per year salary with
a signing bonus. Defendants further claimed that none of the contracts contemplated by the parties were executed, evidencing
no meeting of the minds. Defendants admitted plaintiff went to Asia on behalf of the business, but were unsure when Mr.
Mancinelli left or returned, and were unaware they owed him wages.
In an attempt to settle, plaintiff sent defendants a Code of Civil Procedure Section 998 offer for $149,999, including
attorneys fees and costs. Defendants refused the offer and continued to deny liability (See McMillan Dec., 4.) Immediately
prior to trial, defendants offered Mr. Mancinelli a 998 offer for $20,000. Plaintiff refused this offer.
After a jury trial, plaintiff received a judgment totaling $962,029.31, consisting of: $370,000 for breach of contract against
Rusties Unique Designs, Inc.; $230,031 against all defendants for intentional misrepresentation (past and future lost wages);
$6229.31 against Rusties Unique Designs, Inc. for non-payment of wages; $5769.00 against Rusties Unique Designs, Inc.
for waiting time penalties on wages owed; $175,000 for unitive damages against Ferdinand Barlow relating to intentional
329
misrepresentation; and $175,000 for punitive damages against Rusties relating to intentional misrepresentation (See
McMillan Dec., 5.)
At trial, defendants argued that plaintiff was only an at-will employee and had been paid for all wages owed. The jury
disagreed, finding plaintiff was entitled to compensation for past wages and awarding Mr. Mancinelli waiting-time penalties
under Labor Code Section 203 (See McMillan Dec. 5.)
Just recently, plaintiffs attorney, Scott A. McMillan learned that defendants have stopped operating their business known as
Rusties Unique Designs, Inc. but instead are operating under Rusties International, Inc. On June 27, 2004, Attorney
McMillan visited Rusties business website which now bears the title Rusties International, Inc. (See McMillan Dec. 13.)
Defendants operation of Rusties International, Inc. is consistent with Mr. Mancinellis testimony at trial. Pat Dezinski told
Mr. Mancinelli that Kathleen Siewak told her that she was going to start operating another business known as Rusties
International to prevent Mr. Mancinelli from collecting any judgment obtained as a result of the lawsuit. (See McMillan
Dec. 14.)
Labor Code Section 218.5 provides that a prevailing party to a wage dispute is entitled to attorneys fees if any party to the
action requests attorneys fees at the initiation of the action. Defendants requested attorneys fees in their Answer to plaintiffs
Complaint, and Mr. Mancinelli subsequently prevailed in his wage dispute. Accordingly, plaintiff is entitled to attorneys fees
for prosecution of this action.
II.
THE LABOR CODE ENTITLES PLAINTIFF TO ATTORNEYS FEES AS THE PREVAILING PARTY IN AN
ACTION FOR THE NON-PAYMENT OF WAGES.
California Labor Code 218.5 reads in relevant part:
In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund
contributions, the court shall award reasonable attorneys fees and costs to the prevailing party if any
party to the action requests attorneys fees and costs upon the initiation of the action. This section shall
not apply to an action brought by the Labor Commissioner.
(Labor Code 218.5 (Emphasis added.))

Under California Law, wages are broadly construed:
(a) Wages includes all amounts for labor performed by employees of every description, whether the amount is fixed or
ascertained by the standard of time, task, piece, commission basis, or other method of calculation.
(b) Labor includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station
plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment.
(Labor Code 200.)
The jury determined that defendants owed wages to Mr. Mancinelli; therefore, this action falls under Labor Code 218.5.
III.
330
DEFENDANTS REQUESTED ATTORNEYS FEES AT THE INITIATION OF THIS CASE

A prevailing party shall recover attorneys fees in an action for the non-payment of wages if any party requests them at the
initiation of the action (Labor Code 218.5; emphasis added.)
Defendants prayed for attorneys fees in the Answer to plaintiffs Complaint. Defendants Answer stated: For Defendants
attorneys fees... (See McMillan Dec. 3.) Because defendants sought attorneys fees in this action, plaintiff can recover
these fees as the prevailing party (Labor Code 218.5.)
Had plaintiff lost in this action, defense counsel declared she would seek substantial attorneys fees from plaintiff, evidenced
by a telephone call between plaintiffs counsel, Scott McMillan, and defense counsel, Ellen Hunter. Ms. Hunter informed Mr.
McMillan that if Mr. Mancinelli did not prevail, defendants would take [Mr. Mancinelli] for everything he had (See
McMillan Dec. 12.)
IV.
UNDER CALIFORNIA LAW, THE LODESTAR METHOD IS APPROPRIATE IN DETERMINING PLAINTIFFS
AWARD FOR ATTORNEY FEES.
The lodestar method is the most widely accepted method for determining the amount of a fee award (Rebney v. Wells
Fargo Bank (1991) 232 Cal. App. 3d 1344, 1349.) To determine attorneys fees under the lodestar method, the lodestar figure
must first be determined by multiplying the hours reasonably worked by a reasonable hourly rate (Press v. Lucky Stores, Inc.
(1983) 34 Cal. 3d 311, 321.) After calculating the lodestar figure, the court may enhance or diminish the figure by
considering several factors. The trial court has the discretion to determine the proper amount of an award, but if there is no
reasonable connection between the lodestar figure and the fee ultimately awarded, the fee does not conform to the objectives
of the doctrine and may not be upheld (Id. at 324.)1
1
In Press v. Lucky Stores, Inc. 34 Cal. 3d 311, the Supreme Court of California reversed the trial courts determination of attorneys
fees because it was not calculated according to the lodestar method.
A. Plaintiff is entitled to attorneys fees for 1286.2 hours, the amount of hours reasonably worked.
The number of hours reasonably worked is determined by looking at the time reasonably spent on a matter, including time
spent drafting and revising pleadings, meetings with clients, preparing the case for trial, and handling an appeal (See Serrano
v. Priest (1977) 20 Cal. 3d 25, 48-49.)
Further, reasonable hours may also include time spent by more than one attorney on a particular issue or task, provided there
is no duplication of effort (California Common Cause v. Duffy (1987) 200 Cal. App. 3d 730, 753.)2 Also, time spent by law
clerks and paralegals may be included in the determination of attorneys fees (Davis v. City & County of San Francisco (9th
Cir. 1992) 976 F2d 1536, 1544.) [See also Missouri v. Jenkins (1989) 491 U.S. 274, where the U.S. Supreme Court held that
in setting a reasonable attorneys fee under 28 U.S.C. 1988, a legal fee may include a charge for legal assistant services at
market rates rather than actual cost to the attorneys.] Reasonable hours may also include fee-related services, such as time
spent preparing and litigating the fee application (Serrano v. Unruh (1982) 32 Cal. 3d 621, 639.)
2
The court in California Common Cause v. Duffy 200 Cal. App. 3d 730, allowed an award of attorneys fees that included the work
of three attorneys.
Attorneys Scott A. McMillan, Michelle D. Volk, Alvin Kalmanson, Thomas McKinney and Kenneth Hamilton performed
work on plaintiffs case (See Declarations of Scott McMillan, (McMillan Dec.), Michelle D. Volk (Volk Dec.), Thomas
331
McKinney (McKinney Dec.), Alvin Kalmanson (Kalmanson Dec.), and Kenneth Hamilton (Hamilton Dec.).) In addition, two
law clerks assisted with the prosecution of Mr. Mancinellis case (See McMillan Dec., 22.) The combined hours of all
attorneys and law clerks should be considered by the court in determining the amount of attorneys fees awarded to plaintiff.
1286.2 hours were spent working on plaintiffs case. This figure includes the time spent preparing this fee motion.
Attorney McMillan spent a total of 864.85 hours on plaintiffs case (See McMillan Dec., 23.) The court file in this action
reflects that Attorney McMillan was lead counsel in plaintiffs case and invested the most time in preparing and litigating the
case. Attorney McMillan wrote numerous motions, met with both plaintiff and opposing counsel, conducted all discovery
(including traveling to Florida to take depositions of defendants), conducted the trial, appeared in court prior to trial, and
participated and completed numerous other tasks relating to Mr. Mancinellis case.
Attorney Volk spent a total of 340.48 hours in relation to plaintiffs case (See Volk Dec., 9.) Attorney Volk attended
pre-trial hearings, prepared for trial, drafted and revised numerous jury instructions and pleadings, second-chaired the trial,
contacted clients and opposing counsel, and performed other various tasks.
Attorney Kalmanson spent a total of 2 hours on plaintiffs case (See McMillan Dec., 23.) Attorney Kalmanson met with Mr.
Mancinelli regarding his case.
Attorney McKinney spent a total of 42.60 hours on plaintiffs case (See McKinney Dec., 3 and McMillan Dec., 23.)
Attorney McKinney drafted and revised both the Complaint and the Opposition to Motion to Quash Service of Original
Complaint. He also conferred with Attorney McMillan regarding aspects of the case.
Attorney Hamilton spent a total of 2.22 hours on plaintiffs case (See McMillan Dec., 23.) Attorney Hamilton drafted and
revised discovery requests.
Two law clerks, Sarah Crowley and Shelby Atkinson, also participated in plaintiffs case. Both clerks rendered a total of
34.05 hours (See McMillan Dec., 23.)
1286.20 total hours were spent by all attorneys and law clerks prosecuting this case.
B. Plaintiff is entitled to a reasonable rate for attorneys fees.

In determining a reasonable rate for an attorneys services, courts usually consider:
The prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community;
The nature of the work performed; and
The attorneys customary billing rates (See Serrano v. Unruh (1982) 32 Cal. 3d 621,643.)
In addition, most courts look to rates at the time of the prevailing partys fee application rather than rates charged at the time
the litigation began (Gates v. Deukmejian (9th Cir. 1993) 987 F2d 1392, 1406.)
Finally, where several attorneys file a joint petition for fees, the court may use different rates for the different attorneys
(Municipal Court v. Bloodgood (1982) 137 Cal. App. 3d 29, 47.) Several attorneys and law clerks participated in the
prosecution of plaintiffs case, and their rates vary based on each participants knowledge and experience.
1. The Prevailing Rates Charged By Attorneys of Similar Skill and Experience for Comparable Legal Services In the San
Diego Community.
332
Attorneys in the community who specialize in or otherwise practice employment litigation charge a prevailing rate between
$225 to $350 an hour (See Declaration of Karen Backstrum, 4.)
Attorneys in the San Diego community who are of similar skill and experience as Attorney Kalmanson have a prevailing rate
of $225 to $350 an hour (See McMillan Dec. 15.)
Attorneys in the San Diego community who are of similar skill and experience as Attorney Volk, Attorney McKinney and
Attorney Hamilton have a prevailing rate of $175 to $200 an hour (See McMillan Dec., 115.)
2. Nature of the Work Performed

Attorney McMillan was in charge of plaintiffs case and put in the most time preparing and trying the case. Attorney
McMillan wrote numerous motions, met with both Mr. Mancinelli and opposing counsel, drafted most of the discovery,
conducted the trial, appeared in court prior to trial, and participated and completed numerous other tasks regarding plaintiffs
case (See McMillan Dec. 6.)
Attorney Volk attended several pre-trial hearings, prepared for trial, drafted and revised numerous jury instructions and
pleadings, second-chaired the trial, worked with the client and opposing counsel, and completed various other tasks (See Id.)
Attorney McKinney drafted and revised the Complaint and the Opposition to Motion to Quash Service of Original
Complaint. In addition, he conferred with Attorney McMillan regarding the case (See Id.) Attorney Hamilton drafted and
revised discovery requests (See Id.)
The law clerks participated in several activities, including preparing motions, drafting the cost memo, and various other tasks
(See Id.)
3. The Attorneys Customary Billing Rates

Attorney McMillans customary billing rate is $185 per hour for services paid hourly, involving non-contingency, general
civil litigation (See McMillan Dec., 16.) As set forth in his declaration, $250 per hour is the customary billing rate for
matters involving employment and advertising law. In addition, Attorney McMillan has vast experience that should be
considered in determining the reasonable fee for services in this case (See McMillan Dec., 7-10.) Finally, Attorney
McMillan was awarded attorneys fees at the rate of $250 per hour by the Honorable Lisa Guy Schall in a separate
employment law and unfair competition case litigated in North County (See McMillan Dec., 18.) Considering the prevailing
rate, the nature of the work performed, the customary billing rates and Attorney McMillans experience, the reasonable value
of Attorney McMillans services in this case is $250 per hour (See McMillan Dec., 19.)
Attorney Volks customary billing rate is $185 per hour for services involving general civil litigation. The Firm has been
charging this rate for at least six months preceding this motion; therefore, Attorney Volks rate is market tested (See Volk
Dec., 6.) Considering the prevailing rate, the nature of the work performed, the customary billing rates and Attorney Volks
experience, the reasonable value of her services is $185 per hour (See Volk Dec., 8.)
Attorney McKinney has been practicing law for over two years and has a customary billing rate $150 per hour (See
McKinney Dec., 6.) Considering Attorney McKinneys experience, the prevailing market rate, and his customary billing
rate, the reasonable rate for his services is $185 per hour (See McKinney Dec., 8.)
Attorney Hamilton is a second-year attorney. Considering the nature of the work performed and Attorney Hamiltons
experience, the reasonable value of his services is $185 per hour (See McMillan Dec., 21.)
Attorney Kalmanson has been practicing law for over twenty (20) years and has a customary billing rate of $350 per hour.
Considering Attorney Kalmansons experience, the prevailing market rate and his customary billing rate, the reasonable rate
for his services is $350 per hour (See McMillan Dec. 20.)
333
Both law clerks are third-year law students with experience in drafting and revising legal documents. The reasonable rate for
both law clerks is $75 per hour (See McMillan Dec., 22.)
Based on the above information and the Declarations of Scott A. McMillan, Michelle D. Volk, Thomas McKinney, and Karin
Backstrom, plaintiffs are entitled to reasonable attorneys fees in the amount of $250 per hour for the services of Scott A.
McMillan; $185 per hour for the services of Michelle D. Volk, Thomas McKinney and Kenneth Hamilton; $350 per hour for
the services of Alvin Kalmanson; and $75 per hour for the services of the law clerks who participated in plaintiffs case.
C. The Court may enhance the lodestar amount to determine an appropriate fee award.
Under California law, the court may enhance or reduce the lodestar amount to determine an appropriate fee award (Press v.
Lucky Stores, Inc. (1983) 34 Cal. 3d at 321-322.) A contingency fee risk, successful result, and superior representation by the
law firm are factors for the court in determining whether to enhance the fee amount.
Courts may consider the contingency fee risk as a factor to enhance the lodestar amount, where deemed appropriate, to
attract attorneys to cases of significant public interest and to compensate for the risk of loss present in such cases (Serrano v.
Priest, 20 Cal. 3d at 48). The plaintiffs case was a contingency fee case, and his attorneys have other fee-paying clients to
serve (See McMillan Dec., 17.) Further, payment for this case became increasingly speculative due to Mr. Mancinellis
financial condition and defendants threat to engage in fraudulent transfers. Attorney McMillan will be unable to represent of
middle-class litigants such as plaintiff unless a fee award commensurate with the value of the services rendered is granted
(See McMillan Dec., 117.)
Second, courts may consider a lodestar enhancement to reflect a law firms role in the success of the litigation (See Serrano
v. Priest, 20 Cal. 3d at 49.) The law firm conducted plaintiffs trial and received a judgment in favor of Mr. Mancinelli based
on the performance of the law firms employees. The Firm has developed a specialty in pleading and proving oral contracts.
Prior to Mr. Mancinellis case, the Firm successfully proved the existence of an oral contract in two separate cases.
Third, courts may consider the novelty and complexity of the litigation and the skill displayed in presenting the case in
enhancing the fee award (See Id. at 48.) This court is familiar with the positions taken by the parties during trial. This case
involved several complex and difficult issues, and the fee award should reflect accordingly.
Another factor that should be taken into consideration by this court is that recently defendants have stopped operating their
business known as Rusties Unique Designs, Inc. but instead are operating under Rusties International, Inc. (See McMillan
Dec. 13.) Defendants operation of Rusties International, Inc. is consistent with Mr. Mancinellis testimony at trial. Pat
Dezinski told Mr. Mancinelli that Kathleen Siewak told her that she was going to start operating another business known as
Rusties International to prevent Mr. Mancinelli from collecting any judgment obtained as a result of the lawsuit. (See
McMillan Dec. 14.)
VI.
CONCLUSION
Plaintiff respectfully requests this court to grant an award attorneys fees according to the lodestar method, in an amount not
less than $290,783.05 with a 2x lodestar multiplier bonus of an additional $290,783.05, for a total of $581,566.10.
Date: July 23, 2004
THE MCMILLAN LAW FIRM, APC
<<signature>>
334
Michelle D. Volk
Attorney for Plaintiffs
Ozzie Mancinelli
End of Document
335
Defendants Memorandum of Points and Authorities in Support of

Motion to Dismiss Complaint for Preliminary & Permanent
Injunctive Relief, Declaratory Relief, and Damages
Jacquelyn FINNEY, Plaintiff, v. Thomas P. NUGENT, Judge of the San Diego Superior Court, an individual in his
official capacity; Joan P. Weber, Supervising Judge of the San Diego Superior Court (The North County Regional
Center) an individual in her official capacity; Richard E.L. Strauss, Presiding Judge of the San Diego Superior Court,
an individual in his official capacity; the San Diego County Superior Court, a public entity; Judith McConnell,
Presiding | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Jacquelyn FINNEY, Plaintiff, v. Thomas P. NUGENT,..., 2004 WL 2386513...

Jacquelyn FINNEY, Plaintiff,
v.
Thomas P. NUGENT, Judge of the San Diego Superior Court, an individual in his official capacity; Joan P.
Weber, Supervising Judge of the San Diego Superior Court (The North County Regional Center) an individual in
her official capacity; Richard E.L. Strauss, Presiding Judge of the San Diego Superior Court, an individual in his
official capacity; the San Diego County Superior Court, a public entity; Judith McConnell, Presiding Justice of
the Court of Appeals, 4th Dist. Div. One, an individual in her official capacity; the Court of Appeals, 4th Dist.
Div. One, a public entity; William C. Vickrey, Administrative Director of the Courts, an individual in his official
capacity; Administrative Office of the Courts, a public entity; the Judicial Council of California, a public entity;
and DOES 1-25, inclusive, individual defendants are sued in their official capacities, Defendants.
Case No. 04 CV 0148 L(POR).
February 12, 2004.
Defendants Memorandum of Points and Authorities in Support of Motion to Dismiss Complaint for Preliminary &
Permanent Injunctive Relief, Declaratory Relief, and Damages
Judge: Honorable M. James Lorenz.

TABLE OF CONTENTS
I. INTRODUCTION .........................................................................................................................................................................
A. Summary Of Argument ..............................................................................................................................................................
B. Allegations In The Complaint ..................................................................................................................................................
II. STANDARD OF REVIEW ......................................................................................................................................................
III. THE DISTRICT COURT LACKS JURISDICTION OVER THIS ACTION BASED ON THE
ROOKER-FELDMAN DOCTRINE ...........................................................................................................................................
IV. ELEVENTH AMENDMENT IMMUNITY BARS PLAINTIFFS CLAIMS IN PART .................................
10
A. Plaintiffs Claims Against The Named Agencies Are Barred By Eleventh Amendment Immunity
Because They Are Arms Of The State ........................................................................................................................................
10
B. Plaintiffs Claims Against Individual Defendants Are Barred By Eleventh Amendment Immunity ..............
11
C. Application Of The Eleventh Amendment To ADA Claims Is Pending Before The Supreme Court ............
12
V. JUDICIAL IMMUNITY PRECLUDES THIS LAWSUIT AGAINST THE INDIVIDUAL

DEFENDANTS ..................................................................................................................................................................................
13
VI. PLAINTIFFS CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS SHOULD BE DISMISSED

BECAUSE THERE IS NO INDIVIDUAL LIABILITY UNDER THE ADA OR REHABILITATION ACT
.....................................................................................................................................................................................................................
15
VII. THE COMPLAINT FAILS TO STATE A CLAIM AGAINST ANY DEFENDANT ....................................
16
337
A. Plaintiff Fails To State A Claim Against The Judicial Council, Administrative Office Of The Courts Or
Defendant Vickrey .............................................................................................................................................................................
16
B. Plaintiff Fails To State A Claim Against The Judicial Officers, The Superior Court Or The Court Of
Appeal ....................................................................................................................................................................................................
16
VIII. CONCLUSION ........................................................................................................................................................................
19
Cases
Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir.
2000) ................................................................................................................................................
12
Allah v. Superior Court of the State of California, 871 F.2d 887 (9th Cir. 1989)
..............................................................................................................................................................
6, 7
Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) .......................................
15
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ...................................
11
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) ...........................................................
13, 14
Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398

U.S. 281 (1970) ............................................................................................................................
Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003) ....................................................
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)
..............................................................................................................................................................
12
Branson v. Nott, 62 F.3d 287 (9th Cir. 1995) ....................................................................
Brown v. Allstate Insurance Co., 17 F.Supp.2d 1134 (S.D.Cal. 1998) .....................
Carpenters Health & Welfare Trust Fund v. Tri Capital Corp., 25 F.3d 849
(9th Cir. 1994) ..............................................................................................................................
Curry v. Castillo (In Re Castillo), 297 F.3d 940 (9th Cir. 2002) ................................
14
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ..............
6, 7
Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ......
Doe v. Mann, 285 F. Supp. 2d 1229 (N.D. Cal. 2003) ...................................................
Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) .................................................................
17
Edelman v. Jordan, 415 U.S. 651 (1974) ............................................................................
11
Edwards v. Illinois Board of Admissions to the Bar, 261 F.3d 723 (7th Cir.
7
338
2001) ................................................................................................................................................
Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002) ................................................
15
Ex parte Young, 209 U.S. 123 (1908) ..................................................................................
11
Fontana Empire Center, LLC v. City of Fontana, 307 F.3d 987 (9th Cir. 2002) ..
Francechi v. Schwartz, 57 F.3d 828 (9th Cir. 1995) .......................................................
10
Holden v. Hagopian, 978 F.2d 1115 (9th Cir. 1992) ......................................................
Imbler v. Pachtman, 424 U.S. 409 (1976) ..........................................................................
14
Johnson v. De Grandy, 512 U.S. 997 (1994) .....................................................................
Jones v. Community Redev. Agency, 733 F.2d 646 (9th Cir. 1984) ...........................
17
Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621 (9th Cir. 1988) .............
17
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ...........................................
Lupert v. California State Bar, 761 F.2d 1325 (9th Cir. 1985) ...................................
11
MacKay v. Pfeil, 827 F.2d 540 (9th Cir. 1987) .................................................................
Memmer v. Marin County Courts, 169 F.3d 630 (9th Cir. 1999) ...............................
15
Mitchell v. Los Angeles Community College District, 861 F.2d 198 (9th Cir.
1988) ................................................................................................................................................
10, 11
Moccio v. New York State Office of Court Administration, 95 F.3d 195 (2d Cir.
1996) ................................................................................................................................................
NASD Dispute Resolution v. Judicial Council of Cal., 232 F. Supp. 2d 1055

(N.D. Cal. 2002) ...........................................................................................................................
11
Olson Farms, Inc. v. Barbosa, 134 F.3d 933 (9th Cir. 1998) .......................................
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ....................................
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) ..................
10, 11, 12
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ...............................................................
Pierson v. Ray, 386 U.S. 547 (1967) ....................................................................................
13
Production & Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21 (9th Cir.
1983) ................................................................................................................................................
12
Quern v. Jordan, 440 U.S. 332 (1979) .................................................................................
12
Rooker v. Fidelity Trust Co., 263 U.S. 413(1923) ...........................................................
339
Santiago v. Garcia, 70 F.Supp.2d 84 (D.PR. 1999) ........................................................
14, 16
Shaw v. State of Cal. Dept. of Alcoholic Beverage Control, 788 F.2d 600 (9th
Cir. 1986) .......................................................................................................................................
11
Simmons v. Sacramento County Superior Court, 318 F.3d 1156 (9th Cir. 2003)
..............................................................................................................................................................
11
Tennessee v. Lane, 123 S. Ct. 2622, 156 L. Ed. 2d 626 (2003) ...................................
12
Thompson v. McCombe, 99 F.3d 352 (9th Cir. 1996) .....................................................
Thornhill Publishing Co., Inc. v. General Telephone & Electronics Corp., 594
F.2d 730 (9th Cir. 1979) ............................................................................................................
Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 813 F.2d 1553 (9th
Cir. 1987) .......................................................................................................................................
Weinreich v. Los Angeles County Metro. Transp. Authority, 114 F.3d 976 (9th
Cir. 1997) .......................................................................................................................................
17
Will v. Michigan Department of State Police, 491 U.S. 58 (1989) ............................
11, 12
Wong v. The Regents of the University of Cal., 192 F.3d 807 (9th Cir. 1999) .......
17
Worldwide Church of God v. McNair, 805 F.2d 888 (9th Cir. 1986) .......................
6, 7
Statutes
Rehabilitation Act of 1973, 504, as amended, 29 U.S.C. 794 ..............................
16
42 U.S.C.
section 1231(1) .............................................................................................................................
13
section 12 132 ...............................................................................................................................
13, 17
section 1983 ... 2 1 ......................................................................................................................
2, 1, 18
section 1985 ...................................................................................................................................
2, 11

section 170.1, et seq. ..................................................................................................................
California Government Code

section 11135 ................................................................................................................................
11
Rules
California Rules of Court
Rule 989.3 ......................................................................................................................................
passim
340
Constitutional Provisions
California Constitution, Article I, section 7(a) ..................................................................
2, 11, 17
California Constitution, Article I, section 3 .......................................................................
2, 11, 17
I. INTRODUCTION
A. Summary Of Argument
This action arises out of Plaintiffs lawsuit in the Superior Court of California, County of San Diego against the California
Department of Managed Heath Care, opposing DMHCs practices with regard to HMO contracts (State Lawsuit). Plaintiff
is suing three state court Judges, one Justice of the California Court of Appeal, a Superior Court and the Court of Appeal, in
addition to administrative state court agencies and personnel. Plaintiffs action is based on her dissatisfaction with the rulings
in the State Lawsuit and her desire to have those state court rulings reviewed now by this Court. Further, even beyond
requesting broad injunctive relief and monetary damages from the District Court, which would require impermissible
interference with her ongoing State Lawsuit, Plaintiff requests the District Court to assume jurisdiction of her State
Lawsuit. This action is nothing more than an attempt by Plaintiff to have her underlying state case heard in a federal forum
and Defendants request that the District Court dismiss all claims with prejudice.
This Court should dismiss this action because (1) the Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman
Doctrine; (2) this action is barred by Eleventh Amendment Immunity; (3) judicial immunity precludes this action against the
individual Defendants; (4) there is no individual liability under the Americans with Disabilities Act or Rehabilitation Act;
and (5) Plaintiff fails to allege facts sufficient to state a claim against Defendants.
B. Allegations In The Complaint
Plaintiff filed her Complaint for Preliminary & Permanent Injunctive Relief, Declaratory Relief, and Damages in the United
Stated District Court for the Southern District of California, on January 23, 2004. Plaintiff has named, in their official
capacities, individual Defendants Judge Thomas P. Nugent, Supervising Judge Joan P. Weber, former Presiding Judge
Richard E.L. Strauss and Administrative Presiding Justice of the Court of Appeal, Fourth Appellate District Judith
McConnell (collectively Judicial Officers). Plaintiff has named the Superior Court of California, County of San Diego
(Superior Court) and the Court of Appeal, Fourth Appellate District (Court of Appeal) (collectively State Courts).
Plaintiff also has named as Defendants, William C. Vickrey, the Administrative Director of the Courts, the Administrative
Office of the Courts (AOC) and the Judicial Council of California (Judicial Council).
Although Plaintiffs caption lists seven claims, only five are pleaded separately in the Complaint. Plaintiff alleges claims
against all Defendants for (1) Violation of Title II of the Americans with Disabilities Act (ADA or Title II); (2) Violation
of section 504 of the Rehabilitation Act (Section 504); (3) Violation of Article 1, section 7(a) of the California
Constitution; (4) Violation of Article 1, section 3 of the California Constitution; and (5) Violation of California Government
Code section 11135. While Plaintiff has not separately pleaded claims for violation of 42 U.S.C. section 1983 (Section
1983) or section 1985 (Section 1985), there are some vague allegations throughout the Complaint. Therefore, claims
under these Sections will be addressed in this motion.
Plaintiff is a former federal fraud, waste, abuse and mismanagement investigator who is disabled due to polio, intractable
pain and osteoporosis. Complaint, 1. Plaintiff filed the State Lawsuit against the California Department of Managed Health
Care (DMHC) based on its Lawsuit against the California Department of Managed Health Care (DMHC) based on its
enforcement of an HMO subscriber contract condition which Plaintiff claimed was a prior restraint on her First Amendment
rights. Complaint, 3. Plaintiff filed a motion for a protective order in the State Lawsuit in which she allegedly requested,
among other things, that Judge Nugent order the DMHC to accommodate her disability throughout the litigation (the
Complaint does not identify what accommodations she was seeking). Judge Nugent denied the motion on July 24, 2003,
stating that the motion failed to identify the precise nature of the requested protective order and ordering monetary sanctions
341
against Plaintiff.1 Complaint, 27, 33.

1
Defendants request that the Court take judicial notice (a separate Request for Judicial Notice is submitted with this Motion) of
Judge Nugents July 24, 2003, Order on Plaintiffs Motion for Protective Order (attached as Exhibit I to Defendants Request for
Judicial Notice) and October 9, 2003, Order on Plaintiffs Motion for Reconsideration of July 24 Ruling (attached as Exhibit 2 to
Defendants Request for Judicial Notice). As set forth in these Orders, Plaintiffs motion was seeking to compel certain
depositions, apparently among other matters related to issues in Plaintiffs State Lawsuit, and the Court ruled that Plaintiff could
not take the depositions.
On August 4, Plaintiff filed a motion for reconsideration which was denied by Judge Nugent on October 9. In his Order (Ex.
2), Judge Nugent stated that he had not ignored nor improperly refused Plaintiffs request for accommodation of her polio
disability by DMHC lawyers, as it was not part of the notice of motion, was only mentioned at page 15 of her memorandum
of points and authorities, and she did not state the precise request for accommodation. Plaintiffs only reference in her motion
to an accommodation (at p. 15) was a request that the Court, issue an order requiring defendant to make reasonable
accommodations for Plaintiffs polio disability throughout the conduct of this action. (Ex. 2) Therefore, Judge Nugent ruled
that imposition of an order against DMHC was not supported by the facts and her request failed to state the precise
accommodation she was requesting. Complaint, 34.
On August 4, the same day that Plaintiff filed her motion for reconsideration, she also submitted to former Presiding Judge
Strauss, through Supervising Judge Weber, a complaint and request for investigation of bias, due to her disability, by Judge
Nugent. Complaint, 28. On August 11, Judge Weber responded to Plaintiffs complaint stating that she did not find that
Judge Nugent ignored her request in the motion for a protective order for DMHC to accommodate her disability or otherwise
acted improperly. Plaintiff then requested a response directly from Judge Strauss, who responded on September 18, that as
Presiding Judge he did not have oversight authority over other judges. Complaint, 28-31.
On October 31, after having been provided with the Judicial Council Form to request accommodations (MC-410) by Judge
Weber, Plaintiff submitted a request for accommodation on that form to Judge Nugent. According to California Rules of
Court (CRC), Rule 989.3, the request could be presented to Judge Nugent. Plaintiff does not allege in her Complaint what
specific accommodation she sought, but alleges her request was denied by Judge Nugent, without prejudice, because she
failed to specify the accommodation requested. Complaint, 35-36.
On November 22, Plaintiff filed a complaint with Assistant Executive Officer of the Superior Court, County of San Diego,
North County Division, David Yamasaki and Administrative Director of the Courts, Defendant Vickrey. Plaintiff complained
of violations of the ADA by Judge Nugent, Judge Weber, and Judge Strauss, in addition to administrative malfeasance and
possible misuse of funds. Complaint, 43.
Plaintiff alleges that on November 24, the same day that her complaint to Mr. Yamasaki was received, Judge Nugent
scheduled the Initial Case Management Conference in the State Lawsuit for December 19. Complaint, 44. On December 11,
Plaintiff submitted a request for accommodation on Form MC-410 to change the Conference to a later date. This request was
granted by Judge Nugent on December 18, and he rescheduled the Conference to January 23, 2004. Complaint, 56, 63.
Judge Nugent subsequently set a Status Conference for January 6, to which Plaintiff objected because it was set earlier than
the Case Management Conference. Plaintiff orally made a request for accommodation to have the two Conferences combined
and scheduled for January 23, 2004. This request was also granted by Judge Nugent. Complaint, 65-66.
Plaintiff filed a peremptory challenge to Judge Nugent on December 3, which was denied on December 5 because it was
untimely. See, Cal. Code of Civ. Proc. 170.6. With her preemptory challenge, Plaintiff also submitted a motion to have
Judge Strauss and Judge Weber disqualified from participating in the reassignment of her case. Judge Nugent struck that
motion. Complaint, 47, 52-54. On December 17, Plaintiff filed a statement of disqualification to disqualify Judge Nugent,
which was stricken by Judge Nugent on December 22. Complaint, 60, 67. After reconsideration, on January 5, 2004, Judge
Nugent recused himself in the interests of justice because Plaintiff believed he was biased against her and he vacated all
dates. See, Cal. Code of Civ. Proc. 170.1, et seq. Plaintiff was informed that her case was reassigned to Judge Lisa
Guy-Schall on January 7. Plaintiff objected to her case reassignment to Judge Guy-Schall, in part, because Judge Strauss and
Judge Weber were not disqualified from being involved in the decision as to which Judge to reassign her case. Complaint,
342
68.
CRC 989.3(g) provides that a denial of a request for accommodation made by a judge can be appealed by filing a petition for
extraordinary relief in a court of superior jurisdiction within 10 days of the denial. On December 13, 2003, Plaintiff made a
request for accommodation to Justice McConnell regarding additional time to submit a writ petition to vacate defendant
Nugents rulings and to disqualify him from plaintiffs case. Complaint, 57. Plaintiff spoke with Justice McConnells clerk
on December 22 (one week after the request had been received), but he did not know the status of the request. Complaint,
64. This District Court action followed.
II.
STANDARD OF REVIEW
A Federal Rules of Civil Procedure, Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Brown v. Allstate
Insurance Co., 17 F.Supp.2d 1134, 1137 (S.D.Cal. 1998). A Rule 12(b)(6) motion should be granted if the facts alleged do
not give rise to any enforceable legal right or entitle the plaintiff to any form of relief. Carpenters Health & Welfare Trust
Fund v. Tri Capital Corp., 25 F.3d 849, 852 (9th Cir. 1994). In reviewing a complaint, the court need not accept as true
conclusory allegations or legal characterizations, nor does it need to accept unreasonable inferences or unwarranted
deductions of facts. Holden v. Hagopian, 978 F.2d 11 15, 1121 (9th Cir. 1992).
A motion under 12(b)(1) attacks the complaint based on the courts lack of jurisdiction over the claims. Federal courts are
courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). When defendants bring a
facial attack to a courts subject matter jurisdiction, the court construes allegations in the complaint in the light most
favorable to the plaintiff, but does not infer allegations to support jurisdiction. Doe v. Mann, 285 F. Supp. 2d 1229, 1232
(N.D. Cal. 2003), citing, Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 813 F.2d 1553, 1558-59 (9th Cir. 1987).
The court looks to the complaint and attached documents, as well as to facts that are judicially noticeable or undisputed. Id.
Plaintiff bears the burden of establishing jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
III.
THE DISTRICT COURT LACKS JURISDICTION OVER THIS ACTION BASED ON THE ROOKER-FELDMAN
DOCTRINE
Under the well-settled principles of the Rooker-Feldman Doctrine, this entire action should be dismissed. A federal district
court does not have the authority to adjudicate the case before it when subject matter jurisdiction is lacking. Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375 (1994). Plaintiff has the burden to prove that jurisdiction exists. Thornhill Publishing
Co., Inc. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Federal district courts lack
jurisdiction to review state court judgments or rulings under the doctrine known as the Rooker-Feldman Doctrine. Rooker v.
Fidelity Trust Co., 263 U.S. 413,415 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87
(1983); see also, Johnson v. De Grandy, 512 U.S. 997, 1005-1006 (1994); Allah v. Superior Court of the State of California,
871 F.2d 887, 890-91 (9th Cir. 1989). A challenge under the Rooker-Feldman Doctrine is a challenge for lack of subject
matter jurisdiction and may be raised at any time by either party or sua sponte by the court. Olson Farms, Inc. v. Barbosa,
134 F.3d 933, 937 (9th Cir. 1998) (Rooker-Feldman is a jurisdictional doctrine, rather than a res judicata doctrine.);
Moccio v. New York State Office of Court Administration, 95 F.3d 195, 198 (2d Cir. 1996).
If, in order to grant the relief sought, the district court must determine that a state court ruling was erroneous or is requested
to take action that would render the state court ruling ineffectual, the Rooker-Feldman Doctrine applies. MacKay v. Pfeil, 827
F.2d 540, 545 (9th Cir. 1987) (holding Rooker-Feldman Doctrine bars federal court review if the relief requested requires the
mere revision of errors and irregularities or asks the federal court to determine the legality and correctness of the
judgments of the state courts). The federal court action would be equivalent to an appeal of the state court decision, and
343
therefore dismissal for lack of subject matter jurisdiction is appropriate. Id.; Branson v. Nott, 62 F.3d 287, 291 (9th Cir.
1995).
The jurisdiction of district courts is strictly original and limited. Only the United States Supreme Court may entertain a
proceeding to reverse or modify a state court judgment for constitutional errors. Rooker, at 415-416; Atlantic Coast Line
Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970). The Rooker-Feldman Doctrine recognizes
that while parties may appeal state court decisions to the states highest court, and then to the United States Supreme Court if
a federal constitutional issue is presented, horizontal review of a state courts decisions by a federal district court is
unavailable. Rooker, at 415-416; see also, MacKay, 827 F.2d at 543 (federal district courts may not serve as appellate
tribunals to review errors allegedly committed by state courts). This rule applies even though, as here, the challenge is
anchored to alleged deprivations of federally protected due process and equal protections rights. Worldwide Church of God v.
McNair, 805 F.2d 888, 891-892 (9th Cir. 1986).
As district courts lack subject matter jurisdiction to conduct a direct review of a state court ruling, under Rooker-Feldman
they also lack jurisdiction over issues that are inextricably intertwined with the underlying ruling of a state court. Feldman,
460 U.S. at 486-87. The Ninth Circuit has defined the inextricably intertwined rule as follows: [w]here the district court
must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are
inextricably intertwined. Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); see also,
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987). A constitutional claim is inextricably intertwined with a state court
decision, if the relief requested in the federal action would effectively reverse the state court decision or void its ruling.
Fontana Empire Center, LLC v. City of Fontana, 307 F.3d 987, 992 (9th Cir. 2002).
In Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003), the plaintiff filed suit after a judge who had previously recused
himself in the trial court, sat on his appeal panel. The plaintiff attempted to challenge the judge in the state court claiming this
violated his right to due process and was contrary to California procedural rules. When the plaintiffs request was denied, he
filed an action in district court. The Ninth Circuit reasoned, in upholding the dismissal of his action, that, far from bringing a
general constitutional challenge that is not inextricably intertwined with the state court decision, [the plaintiff] essentially
asked the federal court to review the state courts denial in a judicial proceeding .... Plaintiff here has similarly stated
specific claims intertwined with the State Lawsuit, rather than general constitutional claims based on new facts.
District courts also lack jurisdiction to scrutinize a state courts application of various rules and procedures pertaining to a
state case. See, e.g., Allah, 871 F.2d at 891 (district court lacked subject matter jurisdiction to review a state courts decision
dismissing a personal injury complaint for failure to comply with a discovery order); Worldwide Church of God, 805 F.2d at
892 (If, in order to resolve the claim, the district court would have to go beyond mere review of the state rule as
promulgated, to an examination of the rule as applied by the state court to the particular factual circumstances of [[the
plaintiffs] case, then the court lacks jurisdiction). In Edwards v. Illinois Board of Admissions to the Bar, 261 F.3d 723 (7th
Cir. 2001), the plaintiff was required to release all medical records detailing treatment for depression as part of the process of
reviewing her application for admission to the state bar. The plaintiff was denied admission and claimed the defendants
violated her rights under the ADA. She filed a petition for review with the Illinois Supreme Court, which was denied. The
plaintiff subsequently filed suit in district court. The district court determined that it lacked subject matter jurisdiction based
on abstention principles. On appeal, the Seventh Circuit upheld the dismissal, but based on Rooker-Feldman. The court
reasoned that while plaintiffs injury (having to disclose her complete mental health records) did not result from the state
court judgment, plaintiffs alleged injury was inextricably intertwined with the state courts judgment denying her
certification. Id. at 730. The court concluded that while the plaintiff was not asking for review of the state court determination
regarding her admission to the bar, granting the relief requested would have the same effect. Id. at 731.
Like the plaintiffs in these cases, Plaintiff asks this Court to provide remedies which would require the Court to reevaluate
Judge Nugents rulings, his application of CRC 989.3, and the administration of the State Lawsuit. This is clearly shown
through Plaintiffs first request for relief, in which she asks the District Court to assume jurisdiction over her State Lawsuit.
The basis of each and every claim brought by Plaintiff is her dissatisfaction with judicial decisions made in her State Lawsuit.
Therefore, Plaintiffs claims in the Complaint are barred in their entirety and against every Defendant based on the
Rooker-Feldman Doctrine.
Plaintiffs claims against Judge Nugent arise from his denial of Plaintiffs motion for a protective order and his subsequent
344
administration of the State Lawsuit. Plaintiff alleges that Judge Nugents denial of her motion on July 24, 2003, improperly
focused on form over substance and denied plaintiffs requests for accommodation and protection, chilling ... plaintiffs
right to access and petition, and refusing to be bound by controlling federal and state legal authorities. Complaint, 27.b-g.
In addition, Plaintiff alleges that Judge Nugents denials of her attempts to disqualify him, Judge Strauss and Judge Weber
show the existence and encouragement of deliberate indifference, bias, prejudice, discriminatory animus, duress, coercion
and retaliation. Complaint, 47-54, 60, 60f.,h, 67-68. These rulings are all matters of judicial administration which this
District Court is barred from reviewing.2
2
Judge Nugent ultimately recused himself in the interests of justice.
In addition to attacking the rulings, Plaintiff also bases her claims on the timing of Judge Nugents scheduling of her Initial
Case Management Conference and Status Conference, claiming it evidences retaliation against her.3 Complaint, 44-46, 56.
Likewise, Plaintiff bases her claims on Judge Nugents application of CRC 989.3, relating to accommodations in her State
Lawsuit.4 Plaintiff further demonstrates the interrelatedness of her State Lawsuit and her claims herein, by her allegations that
Judge Nugents failure to accommodate her served his purpose of dismissing her State Lawsuit. Complaint, 60.b.-e. All of
the actions described in the Complaint involve Judge Nugents application of rules and procedures in the administration of
Plaintiffs State Lawsuit, and therefore cannot be reevaluated by the District Court. Any claim based on these allegations is
inextricably intertwined with Plaintiffs ongoing State Lawsuit and the rulings, orders and administration of that State
Lawsuit as described in the cases cited above.
3
Moreover (and as alleged in the Complaint), both of the Conferences were rescheduled to accommodate Plaintiff. Complaint,
44-46, 56, 61, 63, 65.
Two of Plaintiffs requests for accommodation were granted and the only one which was denied (which relates directly back to
Judge Nugents earlier ruling on her motion) was denied because it failed to specify a particular accommodation. Complaint, 27,
35-37, 56, 61, 63, 65, 66; July 24 Order (Ex. 1) and October 9 Order (Ex. 2).
Plaintiff, through this collateral attack on Judge Nugents rulings, is attempting to have the District Court directly review
state court decisions. Plaintiffs allegations against Judge Strauss, Judge Weber and Defendant Vickrey all relate to what she
believes is their failure to adequately review Judge Nugents underlying rulings. Their responses to Plaintiff, stating they had
no power review Judge Nugents underlying rulings. Their responses to Plaintiff, stating they had no power to review another
judges order, are intertwined with Judge Nugents rulings on the motion, because Plaintiff sought to have those rulings
reevaluated to determine whether they were justified or whether there was bias. Plaintiff in fact claims that there may exist,
a separate underlying conspiracy ... between DMHC and defendants Judge Nugent, Weber, Strauss, and San Diego Superior
Court... with the purpose of the conspiracy, ... to prevent review of her rights and the rights of other HMO patients, as
alleged in her underlying State Lawsuit. Complaint, 67.c.,d. Through these allegations, Plaintiff again demonstrates the
level of interrelatedness between her underlying State Lawsuit, and the claims she now is attempting to allege in District
Court. Any action by the District Court based on these allegations would require a review of Judge Nugents rulings and
other judicial acts. Therefore, any claims based on these facts are barred by the Rooker-Feldman Doctrine.
Plaintiff alleges that she subsequently sought accommodation from the Court of Appeal for extra time (and possible other
unspecified accommodations) in the appeal process under CRC 998.3 to file a writ to, vacate defendant Nugents rulings and
to disqualify him from plaintiffs case. Complaint, 57. To determine the validity of Plaintiffs allegations based on this
alleged failure to accommodate, again this Court would be required to evaluate the validity of Judge Nugents application of
CRC 989.3 and Justice McConnells administration of the case.5 This is also barred by the Rooker-Feldman Doctrine.
Because Plaintiffs claims are barred against the individual Defendants, they are likewise barred against the Superior Court,
the Appellate Court, the Judicial Council and the OAC. Plaintiff is just seeking to hold them responsible for the rulings in her
State Lawsuit with which she disagrees.
345
Plaintiffs claims against Justice McConnell and the Court of Appeal, even if they were not barred by the Rooker-Feldman
Doctrine, are not ripe for adjudication, as Plaintiff has indicated that she had not received a decision on whether her request for
accommodation would be accepted or denied. Complaint, 64.
Therefore, the Rooker-Feldman Doctrine prevents this Federal District Court from providing the remedies which Plaintiff has
requested and this action should be dismissed in its entirety without leave to amend.
IV.
ELEVENTH AMENDMENT IMMUNITY BARS PLAINTIFFS CLAIMS IN PART
A. Plaintiffs Claims Against The Named Agencies Are Barred By Eleventh Amendment Immunity Because They Are
Arms Of The State
The Eleventh Amendment of the United States Constitution bars private damage actions or suits seeking injunctive relief
against a state when brought in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). As such,
the state is immune from these suits. This immunity extends to state agencies as well, if the agency is an arm of the state.
Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201 (9th Cir. 1988). In assessing whether an agency is an
arm of the state, the court looks to see the extent to which the agency derives its power from the State and is ultimately
regulated by the state. Francechi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995).
It is well-established law that the Superior Court, the Court of Appeal, the Administrative Office of the Courts and the
Judicial Council are arms of the state entitled to Eleventh Amendment Immunity. Simmons v. Sacramento County Superior
Court, 318 F.3d 1156 (9th Cir. 2003) (holding superior courts an arm of the state); NASD Dispute Resolution v. Judicial
Council of Cal., 232 F. Supp. 2d 1055, 1064 (N.D. Cal. 2002) (holding Judicial Council a statewide body created through the
California Constitution for purpose of establishing statewide policy enjoys the full protection of the Eleventh Amendment);
Lupert v. California State Bar, 761 F.3d 1325 (9th Cir. 1985) (state bar).6 Therefore, Plaintiffs claims under 42 U.S.C.
section 1983, 42 U.S.C. section 1985, Article I, section 7(a) of the California Constitution, Article I, section 3 of the
California Constitution and California Government Code section 11135, against the entity Defendants should be dismissed
without leave to amend.
6
Courts have used the following five factors to determine whether a state agency is an arm of the state: 1) whether a money
judgment would be satisfied out of state funds; 2) whether the entity performs central governmental functions; 3) whether the
entity may sue or be sued; 4) whether the entity has the power to take property in its own name or only the name of the state; and
5) the corporate status of the entity. Mitchell, 861 F.2d at 201. Superior and Appellate Courts, the Judicial Council and the AOC
have been held to meet these standards. In accordance with Government Code section 811.9 and CRC 6.202, the State is
responsible to defend and indemnify the Courts and Judges. In addition, the Judicial Council is created pursuant to the California
Constitution, Article VI, Section. 6. The Administrative Director of the Courts is to be appointed by the Chief Justice. Id. Further,
the Administrative Office of the Courts is the staff agency of the Judicial Council and is headed by the Administrative Director of
the Courts. Therefore, it is clear based on past precedent and the factors stated above, that all of the entities named in the
Complaint are arms of the state entitled to Eleventh Amendment Immunity.
B. Plaintiffs Claims Against Individual Defendants Are Barred By Eleventh Amendment Immunity
The Eleventh Amendment establishes a general bar against suing states and state agencies in federal court. Pennhurst, 465
U.S. at 100; Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Shaw v. Cal. Dept. of Alcoholic Beverage Control, 788 F.2d
600, 603-04 (9th Cir. 1986). The Eleventh Amendment also prohibits suit in federal court against state officials in their
official capacities. Arizonans for Official English v. Arizona, 520 U.S. 43 (1997); Will v. Michigan Department of State
Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment does not always prohibit suing state agents in their official
346
capacity, however, the ability to proceed against state officials is very limited. Ex parte Young, 209 U.S. 123 (1908).
Allowing the suit to proceed must be consistent with the federalism principles underlying Eleventh Amendment
Jurisprudence.
Plaintiff has sued the individual Defendants solely in their official capacities (Complaint, 15-17, 19, 21), therefore Plaintiff
cannot maintain a civil rights action against them in federal court for money damages or retrospective relief.7 See, Will, 491
U.S. 58 (holding that a state official who is sued in his or her official capacity for nonprospective relief is not a person
under 1983); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000). Additionally, Plaintiff is
barred by the Eleventh Amendment from bringing official capacity suits based on state law for both retrospective and
prospective relief. Pennhurst, 465 U.S. at 106. Further, Plaintiffs requests for injunctive relief in this matter would offend
traditional principles of federalism if the State Courts and Judicial Officers were ordered to make specific rulings. As set
forth above under the Rooker-Feldman Doctrine, practically, injunctive relief cannot be ordered against state courts involving
an on-going lawsuit.
7
There is an exception to Eleventh Amendment Immunity when Congress has validly abrogated States Immunity or States have
waived that immunity. By accepting Federal funds, the State (and thereby its agencies which receive Federal funds) waive
immunity under the Rehabilitation Act. The issue of whether the ADA validly abrogated immunity is discussed infra. It is
well-settled that 42 U.S.C. 1983 and 1985 do not abrogate the states Eleventh Amendment Immunity. Quern v. Jordan, 440
U.S. 332, 344-45 (1979). Thus, the Eleventh Amendment bars civil rights claims against states and state employees in federal
court. Id.; Production & Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21,21-22 (9th Cir. 1983) (a state commission was
found to be entitled to Eleventh Amendment Immunity from 1983, 1985 and other claims).
Therefore, as to the individual Defendants, who are named only in their official capacities, all prayers for monetary relief
must be dismissed. As well, all other prayers for relief should also be dismissed, including any attempts to have this Court
assume jurisdiction of the State Lawsuit.
C. Application Of The Eleventh Amendment To ADA Claims Is Pending Before The Supreme Court
The issue of whether Congress validly abrogated the States Eleventh Amendment Immunity thereby subjecting states to
monetary damages suits in federal courts under Title II of the Americans with Disabilities Act, is currently pending before the
United States Supreme Court in Tennessee v. Lane, 123 S. Ct. 2622, 156 L. Ed. 2d 626 (2003). Lane presents the second
occasion for the Supreme Court to address the validity of Congress attempt to abrogate the states sovereign immunity from
suits for money damages brought by private persons under the ADA. In Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356 (2001), the Supreme Court held the attempt to abrogate the States Eleventh Amendment Immunity
invalid as to damages claims against the states asserted under Title I of the ADA, which forbids discrimination on the basis of
disability in employment matters. The Court, however, declined to decide whether Congress had the constitutional authority
to subject the states to claims for money damages under Title II of the ADA. Id. at 360 n.1.
Title II of the ADA, comprehensively regulates all services, programs and activities conducted by a public entity, defined
to include the States and their departments, agencies and instrumentalities. 42 U.S.C. 12131(1). Title II provides that no
qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42
U.S.C. 12132. Title II does not simply prohibit the 16 states from making distinctions based upon disabilities, but
affirmatively requires that public entities make reasonable modifications for disabled persons who qualify. Accordingly, it
has been argued that Congress went beyond its power to abrogate state immunity under the Fourteenth Amendment, Section
5, to enforce Equal Protection or Due Process.
Therefore, it is unsettled at this time whether Eleventh Amendment Immunity bars suits against states in federal court. This
uncertainty however, does not prevent an Eleventh Amendment Immunity bar to all of the other causes of action, or a ruling
that the Rooker-Feldman Doctrine requires a dismissal of the entire action for lack of jurisdiction.
347
V.
JUDICIAL IMMUNITY PRECLUDES THIS LAWSUIT AGAINST THE INDIVIDUAL DEFENDANTS
As Plaintiff acknowledges in her Complaint, 42.e., Judicial Officers enjoy judicial immunity for all judicial acts. The
Judicial Officers are shielded from liability for any rulings made by them while presiding over any legal proceedings
involving Plaintiff, pursuant to the doctrine of judicial immunity. See, Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.
1986). Judicial immunity is absolute. Id. It applies to bar virtually all claims that arise in adjudicatory settings. Pierson v.
Ray, 386 U.S. 547, 554 (1967). As detailed above, the acts which Plaintiff alleges against each of the Judicial Officers
implicates solely their judicial acts.
In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States Supreme Court summarized this doctrine as follows:
Few doctrines were more solidly established at common law than the immunity of judges from liability ... damages for acts
committed within their jurisdiction .... This immunity applies even when the judge is accused of acting maliciously and
corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose
interest it is that the judges should be at liberty to exercise their functions with independence and without fear of
consequences.
Id. at 419, n. 12.
Absolute judicial immunity applies to lawsuits brought by individuals alleging violations of their constitutional rights.
Pierson, 386 U.S. at 554. Judicial immunity even applies when (1) there are allegations of conspiracy between a judge and a
party to predetermine the outcome of a judicial proceeding (Ashelman, 793 F.2d at 1078); or (2) a judge is accused of acting
maliciously and corruptly, because judicial immunity is designed to benefit the public interest in principled and fearless
decision-making (Pierson, 386 U.S. at 554). A judges errors may be corrected on appeal, but he should not have to fear that
unsatisfied litigants may hound him with litigation charging malice or corruption. Id. In addition, judicial immunity is not
reserved solely for judges; quasi-judicial immunity extends to non-judicial officers who perform functions closely associated
with the judicial process. Curry v. Castillo (In Re Castillo), 297 F.3d 940, 947-49 (9th Cir. 2002).
In Santiago v. Garcia, 70 F.Supp.2d 84, 90-91 (D.PR. 1999), the plaintiff was hearing impaired and had requested an
assistive listening device during his underlying civil case in state court. Plaintiff was denied his request in several instances.
The district court dismissed the plaintiffs claims against the judge based on judicial immunity. The court reasoned, [w]hile
there may be an argument that the judges denial of a hearing aid to plaintiff may fall within the administrative, and not the
judicial realm of the judges duties, we believe that in this instance it is impossible to separate the administrative
ramifications of the judges alleged actions from its judicial ramifications. The court further explained that because the
plaintiff was a defendant in a civil lawsuit before the judge and because the crux of his claim was that he was denied due
process of law based on his inability to participate in the trial, it was particularly evident that it involved matters within the
judicial realm. Therefore, the claims against the judge were barred by judicial immunity. See also, Memmer v. Marin County
Courts, 169 F.3d 630, 632 (9th Cir. 1999) (holding the judge who denied the plaintiffs request for an accommodation was
entitled to judicial immunity).
The only acts by the Judicial Officers which Plaintiff alleges are their actions under CRC 989.3 in addressing
accommodations and Judge Nugents acts during the proceedings of Plaintiffs State Lawsuit (such as setting hearings and
ruling on motions). Addressing the single instance in which Plaintiff was allegedly denied a reasonable accommodation, it
was clearly a judicial act intertwined with the underlying action. As set forth above, Plaintiffs motion for a protective order
was denied and within that, her general accommodation request, which was held to be insufficiently specific. Then, she
sought to have Judge Strauss, Judge Weber, and Defendant Vickrey, review Judge Nugents rulings. Additionally, Justice
McConnell allegedly failed to act on a request for time extension to file a writ petition to review those rulings. All of these
acts were also judicial acts, and therefore entitled to immunity. Therefore, all claims against the individual Defendants should
be dismissed.
VI.
348
PLAINTIFFS CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS SHOULD BE DISMISSED BECAUSE

THERE IS NO INDIVIDUAL LIABILITY UNDER THE ADA OR REHABILITATION ACT
Plaintiff has also alleged claims under the ADA and Rehabilitation Act against all of the individual Defendants. However,
individuals may not be sued directly under Title II of the ADA. Title II provides disabled individuals a remedy for
discrimination only by public entities. Alsbrook v. City of Maumelle, 184 F.3d 999, 1005, n.8 (8th Cir. 1999). Likewise,
under the Rehabilitation Act, individuals are not liable. Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002) (former
president, vice president of academic affairs, members of faculty and staff, and outside legal counsel, as individuals
associated with college, not be liable under the Rehabilitation Act since individuals did not receive federal aid); see,
Rehabilitation Act of 1973, 504, as amended, 29 U.S.C.A. 794.8 Additionally, insofar as claims could be maintained
against the individuals in their official capacity for injunctive relief, these claims would be redundant (as the public entities
are already named Defendants) and should be barred under principles of abstension, including the Rooker-Feldman Doctrine.
See, Santiago, 70 F.Supp.2d at 89. Therefore, Plaintiffs claims under the ADA and Rehabilitation Act should be dismissed
as to the individual Defendants.
8
Likewise, since there is no individual liability under the ADA and Rehabilitation Act, Plaintiff cannot maintain claims against the
individual Defendants under Section 1983 or Section 1985 based on the ADA or Rehabilitation Act.
VII.
THE COMPLAINT FAILS TO STATE A CLAIM AGAINST ANY DEFENDANT
A. Plaintiff Fails To State A Claim Against The Judicial Council, Administrative Office Of The Courts Or Defendant
Vickrey
Plaintiffs Complaint contains no specific allegations against Defendant Vickrey, the Judicial Council or the AOC, but only
alleges their responsibilities in connection with the promulgation of the CRCs, particularly Rule 989.3. Complaint, 21-23.
Plaintiff does not allege any specific conduct by Defendant Vickrey, the Judicial Council or the AOC, and how they violated
any law. Therefore, they should be dismissed from this action.
B. Plaintiff Fails To State A Claim Against The Judicial Officers, The Superior Court Or The Court Of Appeal
As set forth above, Plaintiffs only specific allegations against Judge Nugent involve claims that he denied one request for
accommodation and retaliated through his administration of the case (when he scheduled hearings and in how he responded
to attempts by Plaintiff to disqualify the judges). Title II of the ADA, which prohibits discrimination against disabled persons
in the provision of public services, provides in part:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
42 U.S.C. 12132 (emphasis added). In order to state a claim for failure to accommodate under the ADA, Plaintiff must
allege that (1) she is a person with a disability as defined by statute; (2) she is otherwise qualified for the benefit in question
provided by a public entity; and (3) she was denied the benefits of a service, program, or activity or otherwise subjected to
discrimination on the basis of her disability. See, Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996).
Plaintiff has the burden of proof, and must establish the existence of a specific reasonable accommodation that she was not
provided (Weinreich v. Los Angeles County Metro. Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997)), or must allege a
349
retaliatory action taken based on complaints under the ADA. See, Wong v. The Regents of the University of Cal., 192 F.3d
807, 816 (9th Cir. 1999). The only request of Plaintiff for accommodation which was denied, was because she did not make a
specific request. Her two subsequent specific requests for accommodation were granted. Therefore, Plaintiff has not
sufficiently alleged she was refused an accommodation which denied her access to, or participation in any benefit or
program. In addition, the only retaliation which Plaintiff alleges was the scheduling of Court Conferences and Judge
Nugents failure to disqualify himself. However, Plaintiff subsequently requested accommodations regarding the scheduling
of both those Conferences, which requests were granted. Judge Nugent also subsequently recused himself. Therefore,
Plaintiff fails to sufficiently allege any retaliation. Plaintiffs claims based on the ADA, Rehabilitation Act and California
Government Code section 11135 fail to state a claim against Judge Nugent, Judge Weber, Judge Strauss or the Superior
Court.
To establish a violation of section 1983, the plaintiff must show that a person acting under color of state law deprived the
plaintiff of a right secured by the Constitution or federal law. See, Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621,
624 (9th Cir. 1988). In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and
afford the plaintiff the benefit of any doubt. Id. at 623. Yet, conclusory allegations, unsupported by facts, are insufficient to
support a claim under Section 1983. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff
must allege with at least some degree of particularity overt acts by defendants that support the plaintiffs claim. Id. Plaintiffs
claims fail under 42 U.S.C. 1983 and 1985, and California Constitution, Article I, Sections 3 and 7(a) because Plaintiff has
failed to sufficiently allege facts to support a claim that she was denied Due Process or her Right to Petition the Court.
Plaintiff has not sufficiently alleged facts to show she was deprived of any right secured by the constitution. Plaintiff has not
alleged facts demonstrating she was not effectively able to pursue her State Lawsuit or was excluded from the physical
structure of the courthouse. Therefore, Plaintiffs claims against the Superior Court Judges and Superior Court fail to state a
claim upon which relief can be granted.
The claims against Justice McConnell and the Court of Appeal also fail to state claims upon which relief can be granted.
Plaintiffs only factual allegation against Justice McConnell and the Court of Appeal is that Plaintiffs request for
accommodation for additional time to file a writ had not been granted at the time of filing of the Complaint. Plaintiff has
prematurely filed this claim as she has not alleged the accommodation was denied, thereby preventing her from appealing to
the Court of Appeal. This allegation is insufficient to support a claim under the ADA, Rehabilitation Act or California
Government Code section 11135. In addition, these allegations are insufficient to support a claim that Plaintiff was denied
Due Process or her Right to Petition the Court for the same reasons. Therefore, Plaintiffs claims should be dismissed.
VIII.
CONCLUSION
Based on the foregoing, Defendants respectfully request that this action be dismissed in its entirety with prejudice.
End of Document
350
Complaint for Preliminary & Permanent Injunctive Relief,

Declaratory Relief, and Damages 1. Title II of the Americans with
Disabilities Act (42 U.S.C. | 12131 et seq.) 2. Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794 et seq.) 3. Civil Rights Act
(42 U.S.C. | 1983) 4. Civil Rights Act (42 U.S.C. | 1985) 5. Article I,
Section 7(a) of the California Constitution 6. Article I, Section 3 of
the California Constitution 7. California Government Code | 11135
Jacquelyn FINNEY, Plaintiff, v. Thomas P. NUGENT, Judge of the San Diego Superior Court, an individual in his
official capacity; Joan P. Weber, Supervising Judge of the San Diego Superior Court (The North County Regional
Center) an individual in her official capacity; Richard E. L. Strauss, Presiding Judge of the San Diego Superior Court,
an individual in his official capacity; the San Diego County Superior Court, a public entity; Judith McConnell,
Presiding | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:

Jacquelyn FINNEY, Plaintiff,
v.
Thomas P. NUGENT, Judge of the San Diego Superior Court, an individual in his official capacity; Joan P.
Weber, Supervising Judge of the San Diego Superior Court (The North County Regional Center) an individual in
her official capacity; Richard E. L. Strauss, Presiding Judge of the San Diego Superior Court, an individual in his
official capacity; the San Diego County Superior Court, a public entity; Judith McConnell, Presiding Justice of
the Court of Appeals, 4th Dist. Div. One, an individual in her official capacity; The Court of Appeals, 4th Dist.
Div. One, a public entity; William C. Vickrey, Administrative Director of the Courts, an individual in his official
capacity; Administrative Office of the Courts, a public entity; the Judicial Council of California, a public entity
and Does 1-25, inclusive, individual defendants are sued in their official capacities, Defendants.
Civil Case No. 04CV 0148 L(POR).
January 23, 2004.
Jury Trial Demanded
Complaint for Preliminary & Permanent Injunctive Relief, Declaratory Relief, and Damages 1. Title II of the
Americans with Disabilities Act (42 U.S.C. 12131 et seq.) 2. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794 et seq.) 3. Civil Rights Act (42 U.S.C. 1983) 4. Civil Rights Act (42 U.S.C. 1985) 5. Article I, Section 7(a) of the
California Constitution 6. Article I, Section 3 of the California Constitution 7. California Government Code 11135
INTRODUCTION
1. This constitutional and civil rights complaint is filed by Jacquelyn Finney, a former federal fraud, waste, abuse and
mismanagement investigator, who monitored states compliance with federal anti-discrimination/equal opportunity laws as
part of her duties. Plaintiff is now totally disabled due to polio, intractable pain and osteoporosis.
2. This case arises due to a stratagem of state laws, rules, policies, practices and conduct that allow deliberate indifference to
and discriminatory animus against disabled persons by individual judges, courts, court administrators and judicial
governance/administrative entities to deny plaintiff the free exercise of her Constitutional rights to petition and to access state
courts by:
a. exploiting her disabilities,
b. by risking her health and safety,
c. by eroding her will and physical stamina to oppose illegal conduct.
Such discrimination will inevitably cause the dismissal of plaintiffs state lawsuit, filed on October 11, 2002 in the San Diego
Superior Court. This case is of extraordinary public interest.
3. Plaintiffs state lawsuit opposes the California Department of Managed Health Cares (DMHC) enforcement of an HMO
subscriber contract condition that requires unconscionable prior restraint on her speech in the context of her doctor-patient
relationships in order to obtain state mandated and contractual medical benefits. Plaintiff has been denied access to specialist
physician medical care for three (3) years by Kaiser Foundation Health Plan (Kaiser) due to her extraordinary firmness in
refusing to waive her First Amendment rights. Plaintiffs HMO contract benefits have been rendered illusory, unjustly
enriching her HMO. This case is of extraordinary public interest.
4. Plaintiff challenges defendants:
a. Refusal to accommodate her disability.
352
b. Refusal to investigate her complaints of discrimination, coercion and retaliation.

c. Violation and conspiracy to violate her U.S./California Constitutional and civil rights.
d. Imposition of procedural barriers and fees upon disabled persons
e. Promulgation of discriminatory laws, rules, policies, procedures and practices that prevent disqualification of judges biased
against disabled persons.
f. Retaliation against disabled persons who file discrimination complaints regarding biased judges.
g. Violation of state laws, local court rules, policies and directives against disability discrimination and bias.
h. Enactment of California Rule of Court 989.3 to intentionally violate the Americans with Disabilities Act (ADA),
i. Allowing DMHC attorneys to exploit her disability in order to wrongly dismiss her underlying state Constitutional
litigation.
j. Constitutional CHINA SYNDROME stratagem that has caused the rapid and disastrous decline and collapse of
fundamental federal and state Constitutional rights of disabled persons.
5. Plaintiff has suffered discrimination, coercion, retaliation, physical pain and humiliation intentionally inflicted by state
court judges and court public entities under circumstances that are equal to and exponentially exceed injuries suffered by
respondents in Tennessee v. Lane, argued before the U.S. Supreme Court on January 13, 2004.

6. This action arises under the Constitution and law of the United States, including Title II of the Americans with Disabilities
Act, 42 U.S.C. 12131et. seq. (ADA), 504 of the Rehabilitation Act of 1973, U.S.C. 794 et seq.42 U.S.C. 1983 and
42 U.S.C. 1985 and the Constitution and the law of the State of California. Jurisdiction is proper pursuant to 28 U.S.C.
1331, 1343 and 1367 and pursuant to its supplemental jurisdiction over claims brought under the laws of the State of
California.
7. The Court may grant declaratory relief pursuant to 28 U.S.C 2201 and 2202 and grant injunctive relief pursuant to
Federal Rules of Civil Procedure (FRCP) Rule 65.
8. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b).
PARTIES
9. Plaintiff Jacquelyn Finney is and was at all times material hereto a resident of Encinitas, California.
10. Plaintiffs unwavering commitment to the traditional relationship of trust and communication in the physician-patient
relationship (as supported by the U.S. and California Constitutions, the Common Law Doctrine of Informed Consent, and
California Public Policy) is a core personal value, recognized by the U.S. Supreme Court and the California Supreme Court
as a right fundamental to prisoners.
11. Each day plaintiff is conscious that the traditional relationship of trust and communication between her doctors and
herself (from the time she was diagnosed with and paralyzed by polio 50 years ago at age 6 and throughout 11 years of
353
constant corrective surgery and physical therapy) enabled her to walk again at age 17.
12. If plaintiff had been stricken with paralytic polio as a managed care patient under the coercion and duress caused by
DMHC approved unconscionable contracts of adhesion between HMOs and subscribers that have rendered her benefits
illusory, she would not experience the joy in the simple act of putting one foot in front of the other to obtain ineluctable
justice for herself and the large class of disabled persons whom she represents.
a. The California Knox-Keene Act (KKA) mandates that DMHC license health care service plans.
b. Under the KKA, DMHC requires health plans to submit their contracts of adhesion with subscribers for review and
approval to determine compliance with the Act, as being fair, reasonable and consistent with the objectives of that statute.
c. DMHC has approved Kaiser Foundation Health Plans unconscionable contract of adhesion that compels plaintiff to agree
to prior restraint on her speech in the context of her doctor-patient relationships as a precondition to obtain medical benefits,
in violation of Health & Safety Code, 1367(h).
13. Mrs. Finney has physical impairments that substantially limit several major life activities. She has a record of physical
impairments that substantially limit several major life activities. Mrs. Finneys disability is within the meaning of the ADA
and the Rehabilitation Act, 42 U.S.C. 12102 (2)(A); 29 U.S.C. 794; 49 C.F.R. 37.3; 28 C.F.R. 35.104. She is also a
handicapped person within the meaning of 49 C.F.R. 27.5.
14. In addition, Mrs. Finney has a physiological disease, disorder or condition that affects her neurological, musculoskeletal,
and/or special sense organs that limits major life activities. Mrs. Finney is a person with a disability as defined in applicable
California law, including California Government Code 11135.
15. Defendant Thomas P. Nugent is a judge of the San Diego Superior Court. He is responsible for nonjudicial administrative
acts to approve and deny Requests for Accommodations by Disabled Persons pursuant to California Rule of Court 989.3, to
assure compliance with the ADA. He is also responsible for implementing Local Court Policy Against Bias. He is sued in his
official capacity.
16. Defendant Joan P. Weber is Supervising Judge of the San Diego Superior Court. She is responsible for the supervision,
operation and administration of services, programs and activities of the San Diego Superior Court, The North County
Regional Center, including the administration of California Rule of Court 989.3 and Local Court Policy Against Bias. She is
sued in her official capacity.
17. Defendant Richard E. L. Strauss is Presiding Judge of the San Diego Superior Court. He is responsible for the
promulgation of local policies and Rules of Court and the supervision, operation and administration for all the San Diego
Superior Court services, programs and activities, including Rule of Court 989.3. Defendant Strauss is also a voting member
of The Judicial Council of California, which promulgates policies and rules prohibiting discrimination and bias toward
disabled persons by judges, court staff and attorneys. He is sued in his official capacity.
18. Defendant San Diego Superior Court is a public entity funded by the State of California to adjudicate legal disputes in
San Diego County, before which disabled litigants and attorneys appear. This Court is a public entity covered by Title II of
the ADA, 42 U.S.C. 12131(1).
19. Judith McConnell is Presiding Justice of the California Court of Appeals, Fourth District, Division One. She is
responsible for the promulgation of Court policies and rules and supervision, operation and administration of all Appeals
Court services, programs and activities, including accommodation of disabled persons pursuant to California Rule of Court
989.3. She chairs the Judicial Councils Judicial Branch Budget Advisory Committee, which provides budgetary advice to
California Courts regarding compliance with legal mandates of ADA. She is sued in her official capacity.
20. Defendant California Court of Appeals, Fourth District, Division One, is a public entity funded by the State of California
to adjudicate writs and appeals from litigants in the San Diego Superior Court. This Court is a public entity covered by Title
II of the ADA, 42 U.S.C. 12131(1).
354
21. Defendant William C. Vickrey is the Director of the Administrative Office of the Courts. He is responsible for the
promulgation of Judicial Council court policies and rules and the supervision, operation and administration of all California
court services, programs and activities, including providing accommodations to disabled persons pursuant to California Rule
of Court 989.3 and the ADA. He is sued in his official capacity.
22. Defendant, The Judicial Council of California (Council), is a public entity funded by the State of California to set
policy and make rules for all courts, including policies and rules prohibiting bias and discrimination against disabled persons
and for providing accommodations to disabled persons to access court services, programs and activities pursuant to
California Rule of Court 989.3. The Council is a public entity covered by Title II of the ADA, 42 U.S.C. 12131(1).
23. Defendant Administrative Office of the Courts (AOC) is a public entity funded by the State of California to administer
all activities of the Council, including policies and rules prohibiting bias and discrimination against disabled persons and for
providing accommodations to disabled persons to access court services, programs and activities pursuant to California Rule
of Court 989.3. AOC is a public entity covered by Title II of the ADA, 42 U.S.C. 12131(1).
24. Unknown defendants DOES 1-25 are persons and public entities employed/funded by the State of California who are
responsible for the promulgation and implementation of policies and rules prohibiting bias and discrimination against
disabled persons and for providing accommodations to disabled persons to access court services, programs and activities
pursuant to California Rule of Court 989.3 and the ADA. They are sued in their official capacities and/or as public entities
covered by Title II of the ADA, 42 U.S.C. 12131(1).
STATEMENT OF FACTS
25. The facts arising from plaintiffs pursuit of her underlying state lawsuit caused her to question and submit timely
complaints regarding defendant Nugents deliberate indifference to her Constitutional and ADA rights.
26. When state judges discriminate against plaintiff, as a disabled litigant in violation of her ADA rights, these judges also
violate plaintiffs Constitutional rights to access and to petition the courts and to exercise her U.S. and California
Constitutional right to speak to her doctors without unconscionable prior restraint on speech as a precondition to obtain state
mandated and contract health care benefits (plaintiffs underlying state cause of action).
27. On August 4, 2003, plaintiff filed a Motion for Reconsideration of defendant Nugents July 24, 2003 ruling on her
Motion for a Protective Order, including but not limited to the Courts ignoring her polio disability and failure to compel
accommodation of plaintiffs polio disability by DMHC attorneys.
a. By ignoring DMHCs exploitation of plaintiffs polio disability, which in and of itself merits a strong protective order,
defendant Nugent enabled DMHC to improperly harass and to otherwise put plaintiff at a grievous disadvantage in the
expeditious pursuit of her case. Indeed, DMHCs malicious and frivolous conduct (including but not limited to denial of
virtually indisputable matters such as matters of public record, i.e., their own patient rights Guide) have severely exacerbated
plaintiffs intractable pain and other symptoms, and have distressed plaintiffs husband, her sole caregiver.
b. Defendant Nugents July 24, 2003 Ruling that plaintiffs Motion for a Protective Order fails to identify the precise nature
of the protective order pertaining to the accommodation of plaintiffs polio disability is the equivalent of a Get Out of Jail
Free card in defendants monopoly game with the life and death of vulnerable patients in conspiracy with Kaiser and all
health plans to minimize State budget expenditures and maximize HMO profits.
c. Defendant Nugents July 24, 2003 Ruling improperly focused on form over substance and denied plaintiffs requests for
accommodation and protection, that are supported by undisputed evidence, facts and legal authorities, on grounds of
immaterial technicalities which could have been easily cured had the Court entertained oral argument as requested by
plaintiff.
d. Defendant Nugents ruling that plaintiffs motion failed to identify the precise (emphasis supplied) nature of the
protective order sought ignored the precision of Proposed Particulars of the Order as stated in Plaintiffs Motions
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Memorandum of Points and Authorities.

e. Defendant Nugents ruling ignored plaintiffs substantial justification and other circumstances in filing her motion and
improperly awarded $1,119.00 in sanctions to DMHC, ignoring plaintiffs undisputed evidence that the attorneys fees are
bogus and are unjustified and the declarations on which they are based are false.
f. Defendant Nugents chilling of plaintiffs rights to access and petition by his failure to cite his standards and criteria in
awarding sanctions (on the grounds that plaintiff did not act with substantial justification or other circumstances that did not
make the imposition of sanctions unjust at present and in the future regarding accommodation of her disability) subjected
plaintiff to unconscionable coercion and retaliation by the Court and defendants for exercising her right to be free from
discrimination.
g. Defendant Nugent refused to be bound by controlling federal and state legal authorities, including but not limited to
Conant v. Walters, 309 F.3d 629 (9th 22 Cir. 2002), and Armendariz v. Foundation Health Psychcare Services 6 P.3d 669, 24
Cal.4th 83 (2000). He has demonstrated deliberate indifference to and discriminatory animus toward plaintiff.
28. On August 4, 2003, plaintiff filed a confidential complaint and request for investigation of bias, due to her disability, by
defendant Nugent with Presiding Judge Richard E. L. Strauss (pursuant to local court rules), through Supervising Judge Joan
P. Weber.
29. On August 11, 2003, Defendant Weber responded to plaintiffs letter, not Judge Strauss, wrongly stating that I... do not
find that Judge Nugent ignored your request [for defendants accommodation of her polio disability] or otherwise acted
improperly... Defendant Weber violated California Rule of Court 989.3(c)(4), breaching confidentiality by sending DMHCs
attorney her response to plaintiffs bias complaint. Defendant Weber has demonstrated deliberate indifference and
discriminatory animus toward plaintiff.
30. On August 15, 2003 plaintiff requested in writing that defendant Strauss respond personally to her August 4, 2003
complaint in that defendant Weber breached confidentiality and mischaracterized, failed to address, and failed to properly
address her concerns.
31. One month later, on September 18, 2003, defendant Strauss replied by letter, stating:
... I have not reviewed the file... although I am the Presiding Judge of this Court, my duties are limited to
those set forth in California Rules of the Court at rule 6.603... A presiding judge does not have any
oversight [emphasis supplied] ... over the other judges.
Defendant Strauss statement, if true, constituted an admission that defendant.Weber, as the Supervising Judge, violated
California Rules of Court by reviewing the file and ruling that defendant Nugent had not acted improperly in any way.
32. Presiding Judge Strauss violated his own local court rules in that he refused to accept and/or refer a complaint of bias
against a judicial colleague for investigation, in violation of ADA Title II. Defendants Strauss and San Diego Superior Court
have shown deliberate indifference to plaintiffs complaints of discrimination.
33. On October 9, 2003 defendant Nugent ruled on plaintiffs Motion for Reconsideration. His ruling stated that the facts
upon which he had found a breach of contract cause of action (i.e., gagging, coercion, retaliation) on February 20,
2003 in his prior ruling on demurrer were now extraneous and that plaintiff had misinterpreted...the courts clearly stated
...ruling. He did not cite any legal authority. He had not made this statement in his July 24, 2003 ruling on plaintiffs Motion
for Protective Order.
34. Moreover, defendant Nugents October 9, 2003 ruling stated that he had neither ignored nor improperly refused plaintiffs
request for accommodation of her polio disability by DMHC lawyers, in that she had not made the request in her notice of
motion. In addition, he found that she had made the request on page 15 of her memorandum of points and authorities, she had
not cited ah authority at the time in support of her request, and she ... has failed to state the precise request for
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accommodation... Notwithstanding, the court declines to find that this language supports the imposition of any order against
defendants.
35. On October 31, 2003, plaintiff followed defendant Webers instruction to submit the Judicial Council Form to Request
Disability Accommodation to defendant Nugent, i.e.,
I have enclosed for your convenience a form adopted by The Judicial Council of California entitled Request for
Accommodations by Persons with Disabilities and Order. I encourage you to use this form and file it with the court if in the
future you seek any accommodations.
36. On November 4, 2003, defendant Nugent denied plaintiffs request for accommodation without prejudice, by checking
a box on the form and adding handwritten comments, respectively stating that i.e.:
a. The applicant does not satisfy the requirements of the rule... (box checked)
b. Failure to Specify Accommodation Required! (handwritten comment including exclamation point)
37. California Rule 989.3 states that the applicant must describe, not specify the accommodation requested. However, the
Request Form provides less than one (1) inch of space to specify type of accommodation, special requests and anticipated
problems.
38. Defendant Nugents denial of plaintiffs request, due to failure to comply with Rule 989.3 requirement of specificity, is a
Catch-22. The forms construction precludes specificity, providing a pretext for repeated wrongful denials and/or the threat
of denial of future ADA accommodation requests with prejudice and imposition of monetary sanctions. Defendant Nugent
had imposed $1119.00 in sanctions on plaintiff for requesting a protective order regarding remedy of DMHCs refusal to
accommodate her disability. Defendant Nugents animus is apparent from his intentional inclusion of an exclamation point to
emphasize his absolute authority to deny plaintiffs future requests with prejudice.
39. Denial of reasonable accommodation with or without prejudice is not permitted by the Form itself, in Rule of Court
989.3, in any guidance to the public regarding Rule of Court 989.3, in the Americans with Disabilities Act, Title II, or in any
guidance to the public regarding ADA Title II.
40. The sole remedy for wrongful denial of accommodation, provided by California Rule of Court 989.3, is a writ petition to
the Appeals Court within a ten (10) day period, which In Pro Per disabled applicants are unable to do on a one-time basis,
much less on a continuous basis. Moreover, the Appeals Court, to which plaintiff must apply, did not offer accommodations
pursuant to ADA/Rule 989.3 on its website, until January 5, 2004, pursuant to plaintiffs suggestion.
41. Each time a Superior Court judge denies a request for accommodation, the disabled litigant must pay a $655.00 filing fee,
i.e., a court tax which is analogous to a poll tax.
a. Plaintiff finds no California case law in which a judge or a court has been required to pay plaintiffs fees, when the
decision has been reversed by a Writ Petition to an Appeals Court.
b. If allowed to continue, defendants repetitive discrimination that evades review will result in unjust enrichment and in the
formation of a profit center in the Appeals Court budget. The ADA prohibits the courts financial charges for
accommodations required the under the Act.
c. It is unconscionable and illegal that Rule 989.3 requires writ review within ten (10) days for denial of plaintiffs ADA
requests by defendants. The burden is on defendants to prove that they cannot reasonably accommodate requests.
42. The Americans with Disabilities Act, Title II prohibits denial of a Request for Accommodations on the pretext that the
applicant does not satisfy the requirements of the Rule. Rule 989.3 provides a procedure to permit judges denials of
requests for accommodation by every disabled litigant, attorney, juror, and citizen in California pursuant to an illegal pretext.
a. Rule 989.3 states that the applicant must describe, not specify. The Judicial Councils Form MC-410 conflicts with
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Rule of Court 989.3. An applicants description of accommodation does not need to meet an individual judges undisclosed
criteria to comply with specification requirements that are not permitted under Rule 989.3 and ADA.
b. The ADA does not require disabled persons to be mind readers and to conform to procedures that are inconsistent with and
otherwise violate state law, which in turn violates the ADA with which Rule 989.3 expressly purports to have been enacted to
implement full and complete compliance.
c. Rule 989.3 provides for no other formal procedure to request accommodation in addition to Form MC-410, which may
only be submitted to judges. Rule 989.3 does not provide disabled litigants oral and written formal procedures to request
accommodations from court staff for modification of services, such as standing in long lines to file papers at the clerks
counter, which plaintiff has experienced and witnessed at defendant San Diego Superior Court.
d. Rule 989.3 and Form MC-410 are a scheme, designed and intended to facilitate and to evade compliance and review, not
to eradicate discrimination. The Rule of Court and the Form were enacted as an illegal stratagem by defendants Judicial
Council of California and Administrative Office of the Courts and implemented by defendant Vickrey, Director,
Administrative Office of the Courts.
e. Judges enjoy absolute immunity for all judicial acts. By directing all requests for accommodation under Rule 989.3 to
judges, judges and court entities are able to avoid scrutiny and liability for discriminatory acts. However, Rule of Court 989.3
is an administrative act that permits ex parte communication that does not deal in any manner with the subject matter or the
merits of the proceedings before the court (Rule 989.3(d)). Additionally, administrative actions pursuant to the ADA do not
provide judges/courts such immunity.
f. Judges do not enjoy immunity for performing acts and other conduct that coerce, threaten and retaliate against litigants who
exercise their Constitutional and civil rights. Rule 989.3 states:
The Council has adopted this rule to help implement the Americans with Disabilities Act, which
requires public entities, including the courts [[emphasis supplied] to make reasonable modifications in
policies, practices and procedures to avoid discrimination against persons with disabilities...
In reality, the true purpose of Rule 989.3 is the creation of a fraudulent scheme to violate ADA by the California courts and
California judges.
g. Rule 989.3 makes no express provision for submitting requests to the Appeals Courts or to the Supreme Court. Requiring
disabled litigants to submit a writ petition to the California Supreme Court to review denial of a request(s) for
accommodation by Appeals Courts within ten (10) days renders the Rule absurd and otherwise defeats the express purpose of
the Rule.
43. On November 22, 2003, plaintiff filed a complaint with David Yamasaki, Assistant Executive Officer, San Diego
Superior Court (The North County Regional Center) and defendant Vickrey, Administrative Director of the Courts, regarding
violation of the ADA by defendants Nugent, Weber and Strauss, in addition to administrative malfeasance and possible
misuse of funds.
a. Plaintiff reported Undisclosed and Inconsistent Court Information... that violate the letter and spirit of the ADA,
indicating a policy and practice to intentionally violate disabled persons right to petition the court.
b. Plaintiff reported Procedural Barriers... The ADA Coordinator is not disclosed on the Courts website, although the
position and employee is identified on the Courts intranet, which is not accessible to the public even through the County law
library.
c. Plaintiff reported Violations of ADA, Title II... Full disclosure of all court services and programs should be displayed
with suggested accommodations. The ADA prohibits secret criteria and other barriers that restrict access to reasonable access
by disabled persons...
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d. Plaintiff stated that ...the Courts indifference, lack of initiative and failure to be proactive and sensitive in implementing
ADA and other requirements, adversely affect disabled citizens ability to exercise their rights, in plaintiffs case to petition
the Court to enforce her Constitutions rights.
e. Plaintiff stated that ... concerted coercion and retaliation that would chill the exercise of rights by persons of ordinary
firmness have been personally directed toward her by three judges and Ms. Ohanneson (the court reporter). Plaintiff reported
a Finding of Futility in that ... especially disconcerting is the Presiding Judges refusal and express denial of his legal duty
to accept and investigate or to cause appropriate authorities to accept and investigate complaints of bias and prejudice
submitted to him by disabled persons, regarding judges misconduct.
(1) Plaintiff reported Administrative Malfeasance... Judge Strauss actions are inconsistent with Judicial Council policies on
access and fairness.
(2) No judges, much less judges with defendants Nugents, Webers and Strauss experience and intelligence, would
reasonably believe that in proceeding in this way that they were affording plaintiff the meaningful exercise of her rights
(absent coercion and retaliation) that she is entitled to under the U.S. and California Constitutions, the ADA and California
laws.
Defendants ignored and failed to enforce plaintiffs rights by interpreting the law and implementing court rules and
procedures in a manner that intentionally frustrates their purpose. The California Supreme Court ruled on December 1, 2003
in Schifando v. City of Los Angeles ( 10660) that:
...we have never confronted the issue here presented, and find troubling the possibility that exhausting
City Charter procedures might deprive a victim of discrimination of a civil right created by the
Legislature...
44. On November 24,2003, (the same day that plaintiffs complaint was received by Mr. Yamasaki, the Courts Assistant
Executive Officer), defendant Nugent scheduled the Initial Case Management Conference for December 19, 2003. He
scheduled the Conference one year subsequent to plaintiffs filing her Petition for Writ of Mandate to compel DMHC to
cease and desist in condoning prior restraint on her speech to obtain a state mandated medical benefit.
45. Defendant Nugents conduct provides further evidence of retaliation against plaintiff for exercising her rights under the
ADA, California Rule of Court 989.3 and San Diego County Superior Court Rules to file complaints of bias, prejudice and
judicial misconduct. Defendant Nugent had refused plaintiffs multiple requests for in-person hearings prior to his July 24,
2003 and October 9, 2003 Rulings at which time she could have tested the truth of defendants statements and could have
tested his findings of fact and legal conclusions.
46. Based on the totality of defendant Nugents conduct, it is fair and consistent to believe that he intended to use the
December 19, 2003 Conference to continue his illegal pattern of conduct to further violate plaintiffs rights that would
immediately or eventually result in the dismissal of her state litigation with prejudice.
47. On December 3, 2003, plaintiff submitted her Peremptory Challenge to disqualify defendant Nugent to defendant Nugent.
On December 5, 2003, defendant Nugent denied plaintiffs challenge. Pursuant to San Diego Superior Court Local Rules,
Division II, Rule 5.5, plaintiff was required to use form SDSC CIV-249 (Rev. 5-00) to file her peremptory challenge, which
she did.
48. On December 5, 2003, by telephone, plaintiff met and conferred with DMHC Counsel Patricia Sturdevant pursuant to
Rule CCP 212 Case Management Meet and Confer requirement. Plaintiff agreed with Ms. Sturdevants opinion that
defendant Nugents ruling on plaintiffs Motion for Reconsideration on October 9, 2003 rendered defendant Nugents prior
ruling on demurrer inexplicable and that they were stuck while the case was languishing. Plaintiff informed her of the
peremptory challenge that was intended, in part, to provide a remedy.
49. C.C.P. 170.6(3) states that:
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...if the motion is duly presented and the affidavit or declaration... is duly filed... thereupon and without any further act or
proof... a judge should refer the case for reassignment.
50. Although defendant Nugent denied plaintiffs challenge, the local courts form does not expressly provide a section in
which the judge must state his reason(s) for denial. Defendant Nugent did not state any reasons for his summary denial on the
peremptory challenge form.
51. Defendant Nugent did, however, strike a statement on the local court peremptory challenge form by drawing a line
through the entire statement. The statement states:
This case is referred to Presiding/Supervising Department for re-assignment and a Notice will be mailed
to counsel.
52. Attached to plaintiffs Peremptory Challenge form was plaintiffs Motion and Declaration/Exhibits to disqualify
defendants Strauss and Weber for cause (i.e., disability discrimination) from reassignment of plaintiffs case to another judge,
should defendant Nugent grant plaintiffs challenge.
53. C.C.P. 170.6 (3) states that:
...In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to
another judge... or if there is not other judge... the Chair of the Judicial Council shall assign some other
judge... to try the matter as promptly as possible.
The purpose of plaintiffs Motion was to attempt to invoke the principle of check by having an unbiased judge assign the
matter for trial, if necessary.
54. On December 8, 2003, defendant Nugent struck plaintiffs Motion to Disqualify Judges Weber and Strauss in its entirety,
stating that such motion is without precedent in California jurisprudence.
a. Defendant Nugents December 8, 2003 Order striking plaintiffs Motion disclosed for the first time that plaintiffs
peremptory challenge had been denied on the grounds that it was untimely. Defendant Nugents December 5, 2003 denial
of plaintiffs Peremptory Challenge neither stated nor made any reference to untimely.
b. Plaintiff would not have known why defendant Nugent had denied her peremptory challenge had she not filed her Motion
to Disqualify defendants Weber and Strauss. Cognizant that defendant Nugent might seize upon timeliness as apretext to
deny her Peremptory Challenge, in her August 4, 2003 complaint, plaintiff had reserved her right to make a peremptory
challenge. Plaintiffs challenge was contingent upon defendant Strauss investigation of defendant Nugents bias. Defendant
Strauss refused to investigate or to refer the matter for investigation.
c. Plaintiffs challenge was timely, as she was forced to discover facts by enduring defendant Nugents endless gauntlet of
coercion, retaliation and discrimination.
d. Plaintiffs Peremptory Challenge and Motion to Disqualify defendants Weber and Strauss reflect undisputed factual
findings of the existence and encouragement of blatant bias, prejudice, discrimination, duress, coercion and retaliation by
Judges and the Court against disabled litigants.
Defendants Strauss and Weber continue to violate the local courts policy against bias, California Rule of Court 989.3, and
the Americans with Disabilities Act. Absent their disqualification, these judges and their colleagues on the San Diego
Superior Court will assure that retaliatory reassignment occurs in plaintiffs case in order to attempt to extend their cover-up
of deliberate indifference to and discriminatory animus against plaintiff and all disabled litigants, which has caused
unconscionable duress and substantial injury, including unspeakable humiliation
55. On December 5, 2003, David Yamasaki, Assistant Executive Officer, San Diego Superior Court, North County Center,
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admitted in a letter to plaintiff (with a copy to William C. Vickrey, Director, Administrative Office of the Courts) that
defendant San Diego Superior Court due to an enormous budget crisis is intentionally not acting as contemplated by the
Americans with Disabilities Act.
a. Defendant Superior Courts enormous budget crisis excuse for intentionally violating the ADA is a lame pretext. This
Court has never applied its will or resources to even attempt to comply with the ADA, especially during the halcyon years of
the 1990s, during which government entities enjoyed enormous surpluses. On January 9, 2004, Governor Schwarzenegger
budgeted $2.9 billion for the Judicial Branch, with $2.2 billion for the trial courts, including the San Diego Superior Court
(the States second largest court system).
b. Additionally, a review of other California Superior Court websites reveals that many of them, including Los Angeles,
Orange, San Francisco, Kern, Sonoma and Alameda Counties are currently attempting compliance despite the enormous
budget crisis. Their budgetary process affirmatively implements ADA mandates. Defendant San Diego Courts
non-compliance reflects the importance of optional expenditures (e.g., judges travel and other perquisites) over ADA
mandates to accommodate disabled litigants.
c. In January, 1997, defendant Judicial Councils subcommittee on Access for Persons with Disabilities conducted a survey
of Court Users, Attorneys and Court personnel. The Surveys Qualitative Interview with a member of defendant San Diego
Superior Courts Committee for Persons with Disabilities in San Diego County elicited a troubling conclusion:
Unfortunately the old way of doing things continues. No deep thinking/attention has been done beyond
the superficial physical access issue. Locally, the court administration hasnt given such matters deep
thought.
d. Evidently, defendant San Diego Superior Courts deep thought resulted in abolishing this Committee in order to permit
judges and the Court to violate the civil rights of disabled litigants and attorneys at will without detection, without scrutiny
and without remedy. Defendant judges served on the Court, when the Committee was abolished.
e. Although defendant San Diego Superior Courts ADA Coordinator position is presently occupied by Ms. Kathy Abbott
(who also writes grants), Mr. Yamasaki advised plaintiff not to contact her until next summer, when it can be determined
whether defendant Court will choose to implement legally required ADA mandates. Misuse of ADA specific funding
constitutes fraud.
f. Mr. Yamasaki reiterated defendant Strauss position (as stated in his September 18, 2003 letter to plaintiff) in that he
confirmed that defendant Strauss duties do not include a responsibility to investigate charges of bias, prejudice and
discrimination against disabled persons by a judicial colleague, opining that:
His duties are set forth in California Rule of Court, Rule 6.603. I can only confirm that this information
is correct.
g. Both Mr. Yamasaki (at defendant Superior Court) and defendant Vickrey (at the Administrative Office of the Courts)
believe that compliance with the ADA, California Government Code 11135 and other disability laws by Judges and Court
staff is optional, not mandatory and are deliberately indifferent to plaintiffs ADA rights and protections. If ADA compliance
is optional, then all Judges compliance with Canon 3 (B)(5) and (6) against bias is optional. Defendant Nugents bias and
prejudice are officially condoned, although his conduct violates the stated policy of defendant Judicial Council of California,
and the policy of its Committee on Access and Fairness.
h. Defendant Strauss voting membership on the Judicial Council of California, given his express statement that it is not his
duty to investigate complaints of prejudice and bias against another judge, (in violation of defendant San Diego local court
rules and Canons of Judicial Ethics) provides evidence that defendant Judicial Councils written policies and rules against
bias, prejudice and discrimination in the California State Courts are fraudulent misrepresentations to the public.
i. Plaintiff has relied on defendant San Diego Superior Court local policies and defendant Judicial Council Policies and Court
Rules to her detriment, which has caused unconscionable duress and substantial injury.
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56. On December 11, 2003, Plaintiffs caregiver submitted plaintiffs Second Request for Accommodations (Form MC-410)
to defendant Nugent.
a. Plaintiff attempted to comply with defendant Nugents illegal specificity requirement.
b. Plaintiff requested that the Initial Case Management Conference, scheduled for December 19, 2003, be continued to mid to
late January, 2003, as she could not meaningfully participate and that she would be put at risk of osteoporotic fracture due to
an episode of increased pain and fatigue.
c. On December 5, 2003, plaintiff had notified defendant Nugent that this accommodation may be required.
57. On December 13, 2003, plaintiff made a written request for accommodation for her polio disability to Presiding Justice
Judith McConnell of the Fourth District Court of Appeals, regarding an extension of time to submit a writ petition to vacate
defendant Nugents rulings and to disqualify him from plaintiffs case:
Enclosed please find my Request for Accommodations by Persons with Disabilities and Order Form.
(Enclosure No.1) I am totally disabled by polio and require broad reasonable accommodations for myself
and my care giver in order to be able to access the Court to submit a Petition for Writ of Mandate. I am
requesting assistance prior to the filing of my Petition to notify the Court in advance of my needs,
promoting the solution of problems before they occur by engaging in the Americans with Disabilities Act
(ADAs) interactive process.
58. Plaintiff advised defendant McConnell that Form MC-410 (mandated by California Rule of Court 989.3) is not in
compliance with the ADA:
As a former federal investigator, who has enforced anti-discrimination and equal opportunity laws, I am
advising you of discriminatory deficiencies that adversely affect judges review and approval of requests
for accommodations.
a. As one can determine by reviewing the form, the Request Form, itself, does not provide sufficient space to include all
specific relevant information demanded in any category, especially if the person must print rather than type the information
or if the information cannot be summarized or abbreviated. The form construction itself is a barrier to access for disabled
persons.
b. The eight (8) point font-size, used throughout the form, is a barrier for the sight impaired and elderly. Some form
instructions are less than eight (8) point. The Superior Courts requirement for litigant filings is a 12 point font-size. The
parties who designed and approved Form MC410 - Cal. Rules of Court re: rule 989.3 did not accommodate the needs of a
large class of disabled persons, even in the forms instructions.
c. The spaces (less than 1/2 each), to which disabled persons are misled to believe that they must conform in providing
information, are insufficient to accommodate the persons written statements.
d. No statement on the form declares that the request for accommodation may be oral (pursuant to ADA and Rule 989.3) or
instructs the applicant to contact the ADA Coordinator (or other designated official) to make an oral request.
e. The form discourages use of an addendum, as it is not mentioned in the instructions.
f. The form itself does not comply with Rule of Court 989.3, which states that the applicant should describe, not specify
requested accommodations. Once parties have described their needs, it is the Courts duty to make proactive inquiries and
to inform litigants of specific accommodations, programs, services and other resources available to them by implementing the
ADAs interactive process.
g. The ADA prohibits denial of a request for accommodations on the basis that the request does not conform to Rule 989.3
instructions or criteria that are vague, unreasonable and otherwise discriminatory.
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h. The forms construction and instructions require that disabled persons accommodate the form, rather than assuring that the
form accommodates the needs of disabled persons. The form produces procedural and substantive conditions of
unconscionability that violate the rights of disabled persons.
59. Plaintiff further stated to defendant McConnell that:
a. I am extremely concerned that my disability (identified at item No. 4 of the Request Form), in tandem with the
aforementioned Superior Courts judges discrimination may prevent me or has prevented me from strict compliance with
Court procedures and deadlines through no fault of my own. Noncompliance with the ADA and California Rule of Court
989.3, by judges, Court Executive Officers and other persons/entities may result in wrongful denial of my Petition on strictly
procedural grounds without considering its merits in violation of my rights.
b. I have reviewed the Appeals Courts website numerous times and have not found any reference whatsoever to disability
or accommodations for disability, or any reference to the Americans with Disabilities Act and California Rule of Court 989.3.
Your Courts information regarding original Writ procedures is minimally informative. A disabled person, especially
suffering from my severe impairments, must be assisted by the Court, or it is more likely than not, that the persons right to
access your Court may be violated.
60. On December 17, 2003 plaintiff filed a Statement of Disqualification to disqualify defendant Nugent pursuant to CCP
170.3, declaring and providing undisputed facts that he had discriminated against plaintiff on the basis of her disabilities and
had engaged in a pattern of coercion and retaliation against her for filing formal complaints against him.
a. The ADA prohibits coercion and retaliation against disabled persons for exercising their rights. The burden was on
defendant Nugent to justify his actions, once plaintiff had established a prima facie case. The totality of Defendant Nugents
conduct, including his refusal to interact with plaintiff and pretextual denial of reasonable accommodation, in addition to his
imposition of monetary sanctions for requesting an Order to Compel DMHCs ADA compliance, constituted both deliberate
indifference and discriminatory animus. This is confirmed by undisputed facts and is reinforced by overwhelming direct and
circumstantial evidence.
b. Defendant Nugents refusal to engage in the ADAs interactive process to determine how plaintiff could ever satisfy his
undisclosed criteria regarding specificity constitutes substantial direct evidence that making satisfactory requests to him is
a futile endeavor.
c. Plaintiffs disclosure of her impairments requiring defendant Nugents accommodation (i.e., polio, intractable pain and
osteoporosis) supported approval of her broad request and extensive engagement in the ADA interactive process. Defendant
Nugent knew, or should have known, that plaintiffs disabilities precluded her submission of a separate request for each
required accommodation, throughout the entire conduct of the lawsuit before him, without extraordinary and unnecessary
effort, which would inevitably diminish due to his future discrimination, coercion and retaliation.
d. Failure to accommodate also served defendant Nugents nefarious purpose of dismissing plaintiffs underlying
Constitutional claims (e.g., gagging) in her. state court litigation with prejudice, as evidenced by his rulings and conduct
and as DMHC seeks to do in its Initial Case Management Statement.
e. Defendant Nugent is an experienced jurist who has been educated by defendant Administrative Office of the Courts in
ADA compliance. Plaintiff has provided substantial direct and circumstantial evidence that he has intentionally subjected an
in Pro Per Plaintiff with severe disabilities to unconscionable coercion and retaliation for exercising her Constitutional and
civil rights.
f. Plaintiffs Peremptory Challenge and Motion to Disqualify defendants Weber and Strauss reflect undisputed factual
findings of the existence and encouragement of deliberate indifference, bias, prejudice, discriminatory animus, duress,
coercion and retaliation by Judges and the Court against the against disabled litigants, by refusing to investigate complaints in
violation of local court policy and ADA.
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g. Plaintiff renewed her Motion to Disqualify Judges Strauss and Weber for Cause and Declaration of Jacquelyn
Finney/Exhibits in Support of Motion, which had been stricken by defendant Nugent and incorporated all facts made therein
into her Statement of Disqualification.
h. Defendants Strauss and Weber have continued to violate the local courts policy against bias, California Rule of Court
989.3, and the Americans with Disabilities Act. Absent their disqualification, defendant judges and their colleagues on
defendant San Diego Superior Court will assure that retaliatory reassignment occurs in plaintiffs case in order to attempt to
extend their cover-up of deliberate indifference to and discriminatory animus against plaintiff and all disabled litigants.
61. On the afternoon of December 18, 2003 (one day subsequent to the receipt of plaintiffs Statement of Disqualification and
one day before the Case Management Conference), defendant Nugents clerk Al Lum telephoned plaintiffs caregiver and
informed him that defendant Nugent had granted plaintiffs December 11, 2003 request for accommodation to change the
date of the Initial Case Management Conference from December 19, 2003 to January 23, 2004.
a. Defendant Nugent had delayed approval of plaintiffs request for eight (8) days, not responding until plaintiff had filed her
Statement of Disqualification on the previous day, reflecting his coercive and retaliatory practice of causing plaintiff
unconscionable duress in that:
(1) If she had refused to attend the December 19,2003 Conference, defendant Nugent had the power to impose additional
monetary and other sanctions, including dismissal of her case. On July 24, 2003, defendant Nugent had sanctioned plaintiff
$1119.00 for requesting a protective order compelling DMHC attorneys to accommodate her polio disability.
(2) If she had attended the Conference, she would be subjected to risk of osteoporotic fracture, intractable pain, and fatigue,
all of which would have caused intolerable distress, negatively affecting her self-advocacy of her litigation.
b. Had plaintiff suffered osteoporotic fractures, not only would her in pro per lawsuit be ended, she would be put in the
position of having to comply under duress with unconscionable HMO contract conditions that require prior restraint on her
speech in her doctor-patient relationships to obtain treatment for the fractures.
c. DMHCs legal position to license HMOs that form unconscionable contracts of adhesion with subscribers would prevent
her from the guarantee of the rights and protections of the Knox-Keene Act (solely enforced by DMHC with no private right
of action) in violation of her Constitutional and civil rights without meaningful access to the states courts for writ review,
due to their discrimination stratagem against disabled persons.
62. On the morning of December 19, 2003, Mr. Lum telephoned plaintiffs caregiver to set a time for the January 23, 2004
Case Management Conference. He stated that DMHC staff counsel, Patricia Sturdevant, was on-site and present in the Court.
a. Defendant Nugents eleventh hour decision to grant plaintiffs request for accommodation (submitted on December 11,
2003) had caused Ms. Sturdevant to travel from Sacramento to San Diego unnecessarily.
b. Defendant Nugents conscious disregard for plaintiffs rights has also contributed to Governor Schwarzeneggers budget
crisis, which was the subject of a recent meeting between the governor and the Chief Justice of the California Supreme Court
regarding funding for the courts, which defendants maintain is necessary to act as contemplated by ADA.
63. On December 20, 2003 plaintiff received defendant Nugents order granting her second request for accommodation. He
granted the request because it does not create and undue burden on the court.
a. Although he had denied plaintiffs first request because it does not satisfy the requirements of the rule (989.3), he did not
grant her second request on the basis that she satisfies the requirements of the rule. Although the request form provides for
granting a request on the latter basis, defendant Nugent did not check that box or indicate in any other manner that plaintiff
had satisfied Rule of Court 989.3.
b. Plaintiff had informed defendant Nugent that Rule of Court 989.3 was constructed to violate the ADA, protecting judges
from scrutiny and accountability. His failure to grant plaintiffs request on the basis that it complies with the Rule, may
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constitute a tacit admission that he recognizes its illegality.

c. However, defendant Nugents failure to acknowledge that plaintiffs request satisfies the rule may be another retaliatory act
that prevents plaintiff from knowing his secret standards and criteria with which plaintiff must comply in order to have her
future requests granted.
64. On December 22, 2003 plaintiff spoke by telephone with defendant McConnells Clerk, Steve Kelly, regarding
approval/denial status of her December 13, 2003 request for accommodation. Although plaintiffs request for accommodation
plainly stated that she be provided an extension of a deadline to submit her Writ Petition to defendant Appeals Court, Mr.
Kelly was not delegated the authority to approve or deny plaintiffs request. Mr. Kelly stated that he is not an attorney. He
agreed to inquire into the matter of approval or denial and to telephone plaintiff. As of the date of her federal civil action,
plaintiff has had no other communication with defendant Court of Appeals or with defendant McConnell. Plaintiffs request
for accommodations had been received by defendants on December 15, 2003. Defendants McConnell and Fourth District
Court of Appeals have shown deliberate indifference to plaintiffs request for accommodation by their failure to reply to
approve or deny the request.
a. Ignoring the request constitutes discrimination and apparent retaliation in conspiracy with defendants San Diego Superior
Court, Nugent, Weber, and Strauss.
b. Defendant McConnell served as a judge on defendant San Diego Superior Court for many years, rising to the policy
making position of Assistant Presiding Judge. Defendant McConnell has served for years as a member of defendant Judicial
Council, making policy which defendants Administrative Office of the Courts and Vickrey administer.
c. Mr. Kelly stated that defendant McConnell had found plaintiffs suggestions to be helpful and that the state courts ADA
Coordinator had informed her that no California, Court of Appeals website discloses and otherwise advertises ADA
accommodation.
d. Mr. Kelly stated that defendant McConnell had either already acted to revise defendant courts website to reflect ADA
accommodation that day or would cause the revision within a week. The name and telephone number of the ADA coordinator
for disability accommodation has been disclosed subsequent to January 5, 2003, as a result of plaintiffs initiative and
perseverance.
e. Defendant McConnells advertisement of disability accommodation constitutes fraudulent misrepresentation to the public,
as she has refused to act to approve or deny plaintiffs ADA request for over a month. Plaintiff is a member of a large class of
disabled persons who have relied, are relying on or will rely on this advertisement and Rule of Court 989.3 to their detriment.
f. Mr. Kelly stated that defendant McConnell was pleased that plaintiff had reported these deficiencies to defendant Vickrey,
Director, AOC.
65. The next day, on December 23, 2003 @ 8:06 a.m., Defendant Nugents clerk, Al Lum, telephoned plaintiff to inform her
that defendant Nugent had scheduled a Status Conference for January 6, 2004.
a. Plaintiff asked what the subject of the Status Conference would be, how it 2l related to the Initial Case Management
Conference and why the Status Conference was called before the Initial Case Management Conference. He replied that he did
not know.
b. Plaintiff strongly objected to the date of the Status Conference, as it violated defendant Nugents December 18, 2003
approval of her request for accommodation to move the date of the Case Management Conference from December 19, 2003
to January 23, 2004.
c. Plaintiff stated that defendant Nugents action constituted further coercion and retaliation, as she had filed her statement of
disqualification to remove defendant Nugent from her case on December 17, 2003, and that he was intentionally risking her
health and safety.
365
d. Plaintiff orally made a third request for accommodation to combine the Status Conference and Case Management
Conference, holding them both on the date scheduled for the Case Management Conference on January 23, 2004.
e. Mr. Lum agreed to inform defendant Nugent of plaintiffs request and to telephone plaintiff.
f. The fact that defendant Nugent had decided to schedule a Status Conference (on the same day that plaintiff spoke with
defendant McConnells clerk regarding ADA accommodations to submit an appeal of defendant Nugents rulings) creates a
strong presumption of communication and conspiracy between defendants Nugent and McConnell and/or other defendants
and/or their agents, regarding a collaborative strategy to violate plaintiffs ADA and Constitutional rights and protections.
g. This presumption is confirmed by the fact that defendant McConnell has not acted to approve or deny plaintiffs ADA
request for accommodation from its submission on December 13, 2003 to the present date. On December 22, 2003, her clerk
had promised to contact plaintiff regarding action on the accommodation.
66. On December 23, 2003 @ 10:00 a.m. Mr. Lum telephoned plaintiff to inform her that defendant Nugent had granted
plaintiffs third request for accommodation.
a. Plaintiff again inquired as to the subject of the Status Conference, stating that defendant Nugent had not responded to her
Statement of Disqualification.
b. Plaintiff stated that defendant Nugents discrimination, coercion and retaliation were causing intractable physical pain and
emotional duress and that she wanted defendant Nugents response to her statement to disqualify him.
c. The clerk stated that he believed that the Status Conference was set to discuss defendant Nugents response to plaintiffs
Statement of Disqualification, a course of action neither implied by nor expressly provided pursuant to CCP 170.3.
67. On December 27, 2003, plaintiff received defendant Nugents order dated December 22, 2003 striking her Statement of
Disqualification as a matter of law. Defendant Nugent regarded plaintiffs facts to support her request to disqualify all
judges of defendant San Diego Superior Court as a conspiracy theory, the connotation of which clearly disparaged
plaintiffs mental competency.
a. Defendants Nugent, Strauss, Weber and McConnell were judges in 1996 at defendant San Diego Superior Court, when its
Presiding Judge, two other Superior Court judges and an attorney were prosecuted by the U.S. Department of Justice. They
were convicted of a federal RICO bribery conspiracy to fix verdicts.
b. The facts presented in this lawsuit conform to the analytical framework for conspiracy constructed by the U.S. Ninth
Circuit Court of Appeals (Mendocino Environmental Center v. Mendocino County 192 F.3d 1283 (9th Cir. 1999), which
ruled that government employees had conspired to chill the free speech rights of persons of ordinary firmness.
c. A separate underlying conspiracy may exist in which other parties, acting as brokers between DMHC and defendants
Nugent, Weber, Strauss, and San Diego Superior Court, caused the court to engage in extreme and illegal actions to support
violation of ADA.
d. The purpose of the underlying conspiracy would be to prevent scrutiny of and legal remedy for the violation of plaintiffs
rights (and the rights of all HMO patients) by imposing unlawful prior restraint on plaintiffs speech in the context of her
doctor-patient relationships as a precondition to access state mandated and contractual HMO medical benefits.
68. On January 8, 2004, plaintiff received Notices from defendant San Diego Superior Court.
a. A Notice dated January 5, 2004 informed plaintiff that defendant Nugent had reconsidered his decisions striking her
peremptory challenge (pursuant to C.C.P. 170.6) and her statement of disqualification (pursuant to C.C.P. 170.3).
Defendant Nugent stated:
This Court has reconsidered the materials filed by plaintiff relative to the disqualification of Judge
366
Thomas P. Nugent and finds as follows: Plaintiff has developed an abiding belief that this Court is biased
against her. Her opinion is untrue, unfortunate and inconsistent with this Courts commitment to ensure
that, at the conclusion of the proceedings, all litigants, regardless of the result, believe they were treated
fairly. Therefore, pursuant to C.C.P. section, 170.1(a)(A), this Court hereby recuses itself on the ground
this recusal will further the interests of justice. All further dates are vacated.
b. A Notice dated January 7, 2004 informed plaintiff that her case had been reassigned to Judge Lisa Guy-Schall, a judge of
defendant San Diego Superior Court, The North County Regional Center.
c. The Notices did not address plaintiffs undisputed statements in her motions to disqualify defendants Strauss and Weber
from making the reassignment of another judge on the basis that they have violated ADA and defendant Courts own policy
on bias and have conspired with other defendants to discriminate, coerce and retaliate against plaintiff.
d. Plaintiff objects to the reassignment of her case to Judge Guy-Schall on the basis that defendants have not disclosed the
decision-maker(s) who reassigned her case to Judge Guy-Schall. Plaintiff had made two motions to disqualify defendants
Strauss and Weber from making the reassignment.
e. Plaintiff further objects to the reassignment of her case to Judge Guy-Schall in that, should she also retaliate against
plaintiff for exercising her rights in order to protect her colleagues and the Court, defendants refusal to investigate and to
provide plaintiff remedies for bias, discrimination, coercion and retaliation will result in further injury and harm to plaintiff.
f. On October 14, 1999, Judge Guy-Schall was publicly admonished by the California Commission on Judicial Performance
for abusing her contempt power to deprive a litigant of her fundamental liberty interest without all of the procedural
safeguards normally accompanying such a deprivation. Judge Guy-Schall sentenced a woman to five (5) days in jail without
informing her that she was in contempt, failing to give her a chance to respond to the contempt order and finding her in
contempt in her absence. Four years elapsed between the incident and the admonishment of Judge Guy-Schall. Like
defendant Nugent, she acknowledged no problems in her handling of this matter.
g. Defendants rules, policies, procedures, guidelines, practices and conduct intentionally discriminate against plaintiff and
violate her Constitutional and civil rights. Defendants will contiAue to harm and injure plaintiff and all disabled persons,
absent the relief requested in this lawsuits Prayer.
69. By reason of the foregoing allegations, there exists a justiciable controversy with respect to which plaintiff is entitled to
the relief prayed for herein. Plaintiff has filed undisputed meritorious complaints concerning discrimination, coercion and
retaliation on the basis of her disability, using the complaint mechanisms established by California law, which has been
constructed to violate and intentionally violates ADA, Title II.
70. Defendants have both ignored and denied plaintiffs complaints as a matter of law, budgetary priority and due to other
unstated reasons, providing no remedy for repeated violations of her rights and have coerced and retaliated against her for
submitting complaints. Plaintiffs facts have never been disputed.
71. Defendants conduct, as set forth herein, violates clearly established federal law.
72. Denial of services and programs as fundamental as access to state courts severely impedes plaintiff and all disabled
persons from full and equal enjoyment of the rights of citizenship in a free society. In particular, denial of access to this state
court results in violation of her right to petition to remedy the denial of state-mandated health care benefits absent plaintiffs
consent to unconscionable prior restraint on her speech in the context of her doctor-patient relationships. For these injuries,
plaintiff is entitled to damages in the amount to be determined according to proof.
73. Defendants have seriously injured plaintiff in other ways as well. Plaintiffs injuries include, without limitation,
frustration, humiliation, physical pain and suffering and harm to her Constitutional rights.
74. Defendants have admitted that they are acting intentionally ...not as contemplated by the Americans with Disabilities
367
Act.
75. Plaintiff is informed and believes, and on that basis alleges, that defendants conspired and intentionally have acted in bad
faith, with malice and oppression, and with reckless indifference for plaintiffs rights under federal law by their acts and
omissions set forth herein.
76. Defendants are continuing to discriminate, coerce and retaliate against plaintiff based on her disability by denying
meaningful access to state court, resulting in ongoing and irreparable injury to plaintiff. Defendants conduct supports this
Courts application of the capable of repetition, yet evading review doctrine. Absent the complete relief requested, there is
a reasonable expectation that plaintiff and all disabled persons will be subjected to the same conduct again.
77. Plaintiff has no plain, speedy and adequate remedy at law. Pecuniary relief alone will not afford her complete relief for
the ongoing acts and omissions complained of herein.
FIRST CLAIM FOR RELIEF

Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et seq. Against All Defendants
78. The factual allegations of the foregoing paragraphs are incorporated herein by reference.
79. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability be excluded
from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to
discrimination by any such entity. 42 U.S.C 12132, et seq.; 28 C.F.R. pt. 35.
80. The regulations implementing Title II of the ADA provide that no private or public entity shall discriminate against any
individual because that individual has opposed any act or practice made unlawful by this part, or because that individual
made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the Act or
this part. 42 U.S.C. 12132 et seq; 28 C.F.R. pt. 35.134(a).
81. The regulations implementing Title II of the ADA provide that no private or public entity shall coerce, intimidate,
threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of her or her having aided or encouraged any other individual in the exercise or enjoyment or, any
right granted or protected by the Act or this part. 42 U.S.C. 12132 et seq., 28 C.F.R. pt. 35.134(b).
82. The regulations implementing Title II of the ADA provide that public entities such as defendants Superior Court, Fourth
District Appeals Court, Administrative Office of the Courts and the Judicial Council of California may not utilize methods of
administration that have the effect of defeating or substantially impairing the accomplishment of the public entitys program
with respect to individuals with disabilities. 28 C.F. R. 35.130(b)(3)(iii),
83. The regulations implementing Title II of the ADA provide that public entities such as defendants Superior Court, Fourth
District Court of Appeals, Administrative Office of the Court, and the Judicial Council of California may not place a
surcharge on a particular individual with a disability or any group of individuals with disabilities in the form of a $655.00
Appeals Court filing fee (i.e., a court tax) to:
a. file complaints against and disqualify judges who discriminate against disabled persons,
b. vacate their discriminatory, retaliatory rulings,
Disabled persons are not required to cover the costs of measures, such as program accessibility, that are required to provide
that individual or group with the nondiscriminatory treatment required by the Act or subpart 28 C.F.R. 35.130(f).
84. The regulations implementing Title II of the ADA provide that public entities may not aid or perpetuate discrimination
368
against a qualified person with a disability by providing significant assistance to an agency, organization or person that
discriminates on the basis of a disability in providing any aid, benefit or service to the beneficiaries of the public entities
programs, including all defendants and DMHC. 28 C.F.R. 35.130(b)(1)(v).
85. Plaintiff is a qualified individual with disabilities within the meaning of 42 U.S.C. 12131(2).
86. Defendants Nugent, Weber, Strauss, McConnell, Vickrey, San Diego Superior Court, Fourth District Court of Appeals
(Division One), Administrative Office of the Courts and The Judicial Council of California have violated the ADA by,
among other things, excluding plaintiff from and denying plaintiff the benefits of the California State Courts on the basis of
her disability, as more fully set forth above.
87. In all of this, defendants have acted under color of state law, regulation, usage or ordinance and in concert with one
another to deprive plaintiff and to threaten to deprive plaintiffof rights, privileges, or immunities secured to her regarding free
speech and right to petition by the First Amendment and to access and due process by the Fourteenth Amendment to the
Constitution of the United States in violation of 42 U.S.C. 1983. Defendant public entities are persons subject to suits
within the meaning of 42 U.S.C. 1983 and are liable for the acts and omissions of themselves, and/or their employees, and
have either delegated or ratified their discriminatory acts.
88. In all of this defendants have acted under color of state law, regulation, usage or ordinance, in concert with one another,
and by conspiracy among them, have caused plaintiff to be denied her Constitutional right to petition the court and right to
due process of law by subjecting her to legally unjustified and discriminatory state laws, policies, procedures, practices and
actions to deprive her of meaningful access to the state court to enforce her underlying First Amendment U.S. and California
Constitutional right to free speech without prior restraint imposed by DMHC and Kaiser to access contract medical benefits.
Defendants had knowledge of and participated in the conspiracy to violate plaintiffs ADA and U.S. Constitutional rights and
had knowledge of the violations committed and had power to prevent and remedy these wrongs, but neglected and refused to
do so in violation of 42 U.S.C 1985(3).
89. Defendants acts were done in knowing violation of plaintiffs legal and Constitutional rights and have directly and
proximately caused plaintiff physical injury, humiliation, and distress.
90. These violations of the ADA have harmed and will continue to harm plaintiff and other disabled persons in the future.
91. Pursuant to the remedies, procedures and rights set forth in U.S.C. 12133, plaintiff prays for judgment is set forth
below.
SECOND CLAIM FOR RELIEF

Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. 794 Against All Defendants
93. Section 504 of the Rehabilitation Act (Section 504) states that ...no otherwise qualified individual with a disability...
shall, solely by reason of her disability, be excluded from participation in, be denied the benefit of, or be subjected to
discrimination under any program or activity receiving federal financial assistance... 29 U.S.C. 794.
94. Regulations implementing Section 504 of the Rehabilitation Act provide that a recipient may not, directly or through
contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified
handicapped persons to discrimination on the basis of disability; [or] (ii) That have the purpose of defeating or substantially
impairing accomplishment of the objectives of the recipients program with respect to handicapped persons... 45 C.F. R
84.4(b)(4).
95. Plaintiff is a qualified individual with a disability within the meaning of the Section 504 and its implementing regulations.
369
96. By virtue of their above-described failure to afford plaintiff reasonable accommodations and/or accessibility to their
facilities, services, activities and/or programs in addition to coercion and retaliation for making complaints against defendants
on the basis of disability discrimination, defendants utilize methods of administration that have the effect of subjecting
individuals with disabilities to discrimination.
97. Defendants violations of Section 504 have harmed and will continue to harm plaintiff.
98. Accordingly, plaintiff is entitled to relief, as set forth in the wherefore clause below.
99. By virtue of the foregoing actions and omissions of defendants, under color of law and official policy, defendants
practice and custom, have denied and have conspired to deny plaintiff her rights to due process and access to the courts
guaranteed by the Fourteenth Amendment to the U.S. Constitution and her right to petition the courts guaranteed by the First
amendment to the U.S. Constitution. These claims are actionable under 42 U.S.C. 1983 and 42 U.S.C 1985.
THIRD CLAIM FOR RELIEF

Violation of Article 1, Section 7(a) of the California Constitution Against All Defendants
101. The California Supreme Court has emphasized the importance of free access to the courts as an aspect of the First
Amendment right to petition. Free access to the courts is an important and valuable aspect of an effective system of
jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more
severe than that typically imposed on defeated parties. In re Marriage of Flaherty (1982) 31 Cal.3d 637.
102. The state has a constitutional obligation to provide a hearing ... before an impartial and disinterested decision-maker
satisfies the two central concerns of procedural due 15 process, the prevention of unjustified or mistaken deprivations and the
promotion of participation and dialogue by affected individuals in the decision-making process. Coleman v. Department of
Personnel Administration 52 Cal.3d 1121.
103. Defendants imposition of Appeals Court filing fees (a court tax) for writ review of discrimination, coercion and
retaliation by judges against disabled persons pursuant to CCP 170 and Rule of Court 989.3 not only violate the
U.S./California Constitutions and ADA, but also discourage the exercise of the right to a due process hearing by plaintiff on
her legitimate complaints. A measure implemented for the sake of efficiency cannot jeopardize the integrity of the judicial
process. Jovine v. FHP, Inc (1998) 64 Cal.App.4th 1506.Rule of Court 989.3 and C.C.P. 170 place burdensome hoops
upon disabled persons seeking a meaningful opportunity to be heard before the Court. Lammers v Superior Court (2000)
Cal.App.4th.
104. These Appeals Court filing fees, the ten (10) day timeframes for submitting writ petitions and the prospect of the
imposition of court costs and sanctions will have a chilling effect upon all disabled persons who wish to make such a
challenge of discrimination, coercion and retaliation by judges.
a. Defendant Nugents repeated wrongful denials, retractions of reasonable accommodations previously granted, sanctions,
coercion and retaliation will cost plaintiff $655.00 each time plaintiff files a writ petition as is currently required by C.C.P.
170 and Rule of Court 989.3.
b. State law mandating writ petitions within a ten (10) day timeframe to review and remedy defendant judges disability
discrimination creates a fraudulent scheme, generating unconstitutional/illegal unjust enrichment in violation of federal and
state law.
105. A litigants non-frivolous assertion of a procedural right may not be chilled through fear of subsequent reprisals in the
370
form of monetary penalties. The prospect of liability for hearing costs could cause [teachers] to limit their defense and forego
vigorous advocacy, even if they are not deterred from demanding a hearing. (California Teachers Assn v. State of California
(1999) 20 Cal.4h 327)
106. Defendants above-described conduct violates plaintiffs right not to be deprived of access, due process and equal
protection laws under Article I, Section 7(a) of the California Constitution.
107. Defendants violations of the California Constitution have harmed and will continue to harm plaintiff.
109. By virtue of the foregoing actions and omissions of defendants, under color of state law and official policy, defendants
practice and custom, have denied and have conspired to deny plaintiff her rights to due process and access to the courts
guaranteed by the U.S. and California Constitutions and her right to petition the courts guaranteed by the U.S. and California
Constitutions. These claims are actionable under 42 U.S.C. 1983 and 42 U.S.C. 1985.
FOURTH CLAIM FOR RELIEF

Violation of Article 1, Section 3 of the California Constitution Against All Defendants
111. The Califoria Supreme Court has emphasized the importance of the right to criticize public entities and government
officials by the act of filing a lawsuit.
112. The California Supreme Court ruled in City of Long Beach v. Bozek (31 Cal. 3d. 527, 183 Cal.Rptr. 86, 645 P.2d 137)
that:
a. The act of filing suit against a government entity represents an exercise of the right of petition and thus evokes
Constitutional protection...
b. The right of petition is of parallel importance to the right of free speech and other overlapping cognate rights obtained in
the First Amendment and in equivalent provisions of the California Constitution...
c. It is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental
authorities to seek redress through all channels of government...
d. The bringing of suits against the government is absolutely privileged...
113. Defendants violations of the ADA prevent and otherwise violate the exercise of plaintiffs right to petition for redress
of her grievances regarding unlawful prior restraint on her speech in the context of her physician-patient relationships by
DMHC and Kaiser as a precondition to obtain state mandated and contractual medical benefits.
114. Defendants violations of the ADA prevent and otherwise violate the exercise of plaintiffs right to petition for redress
of grievances against DMHC for illegally licensing HMOs under the Knox-Keene Act and approving unconscionable
contracts of adhesion between HMOs and subscribers.
115. Defendants above-described conduct violates plaintiffs right not to be deprived of the right to petition under Article I,
Section 3 of the California Constitution.
116. Defendants violations of the California Constitution have harmed and will continue to harm plaintiff.
371
118. By virtue of the foregoing actions and omissions of defendants, under color of state law and official policy, defendants
practice and custom, have denied and have conspired to deny plaintiff her rights to petition and free speech guaranteed by the
U.S. and California Constitutions. These claims are actionable under 42 U.S.C. 1983 and 42 U.S.C. 1985.
FIFTH CLAIM FOR RELIEF

Violation of California Government Code 11135 Against All Defendants
120. Section 11135(a) of the California Government Code says:
No person in the State of California shall on the basis of... disability, be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that
is conducted, operated or administered by the state or by any state agency, is funded directly by the state,
or receives any financial assistance from the state.
121. Plaintiff is a person with disabilities within the meaning of California Government Code 11135.
122. Pursuant to California Government Code 77100, The Legislature finds and declares that:
(b) ...all citizens of this state should enjoy equal and ready access to the trial courts...
(d) The method of funding trial courts should not create financial barriers to the fair and proper resolution of civil... actions...
(e) Many people defend their personal and property rights in the courts, and seek redress through the judicial system only
when compelled by sheer necessity of circumstance...
(f) The chapter is enacted to promote the general welfare and to protect the public interest in a viable and accessible judicial
system.
123. In 1997, pursuant to California Government Code 77200, the state has assumed responsibility for the funding of
defendants operations, as defined in Government Code 77003 and California Rule of Court 810.
124. Pursuant to California Government Code 77001, The Judicial Council shall adopt rules which establish a
decentralized system of trial court management. These rules shall ensure:...
(e) Equal access to justice throughout California utilizing standard practices and procedures whenever feasible.
125. Pursuant to Government Code 68088, The Judicial Council may provide by rule of court for racial, ethnic, and gender
bias and sexual harassment training for judges... Disability bias training is conspicuously absent.
126. Through their acts and omissions described herein, defendants violate California Government Code 11135 by denying
plaintiff her right to access the state courts to petition for redress of grievances, which include the imposition of prior restraint
on her speech by DMHC pursuant to an unconscionable HMO contract of adhesion to obtain state mandated medical
benefits.
127. In so doing, defendants are unlawfully denying plaintiff the benefits of programs, services and activities, and unlawfully
subjecting plaintiff to discrimination under defendants programs, services and activities.
372
PRAYER
WHEREFORE, Plaintiff respectfully requests that this Court:
1. Assume jurisdiction over this action.
2. Issue a declaratory judgment in favor of plaintiff, against defendants, declaring that defendants have violated Title II of the
Americans with Disabilities Act, 42 U.S.C. 12131 et seq. and/or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794 and/or 42 U.S.C. 1983 and/or 42 U.S.C. 1985 and/or the U.S. and California Constitutions and/or California
Government Code 11135.
3. Issue a preliminary and permanent injunction ordering defendants to comply with the U.S. and California Constitutions
and statutes set forth herein.
4. Issue a preliminary and permanent injunction prohibiting defendants from subjecting plaintiff to state statutes, codes,
regulations, rules, policies and practices that violate her rights, which should include but not be limited to:
a. Amending California Code of Civil Procedure 170 by including a provision, pertaining to the disqualification of judges
who are accused of bias, discrimination, coercion and retaliation and other illegal acts against persons on the basis of a
disability, that establishes immediate review by an agency, independent of Californias judicial branch, without requiring
strict time limits, fees, or other illegal barriers.
b. Declaring California Rule of Court 989.3 unconstitutional and illegal in its entirety, compelling defendant Judicial Council,
at a minimum, to develop and prominently and conspicuously advertise written policies and procedures regarding compliance
with ADA.
c. Establishing a state-wide system requiring each judge and court to collect and maintain detailed records of all requests for
accommodation by disabled persons by type of accommodation requested, the disposition of all requests for accommodations
by type of accommodation requested, and to publish these findings on each courts website to be updated monthly.
d. Establishing and conspicuously publishing written and oral complaint/grievance policies and procedures to enable each
disabled person to submit timely, meaningful complaints against courts and judges accused of discrimination, bias, coercion
and retaliation.
e. Establishing and conspicuously publishing clear, consistent and public discipline policies and procedures in the event
complaints and grievances are sustained.
f. Appointing an independent auditor who will review the records of courts and judges quarterly to determine that there is
actual compliance with these reforms and conspicuously publishing investigatory methodologies and all findings.
g. Requiring that the names and contact information for ADA coordinators for each court be conspicuously published on each
courts website and prominently displayed at multiple locations in each courthouse.
h. Requiring that the services and programs of each court and representative comprehensive corresponding accommodations
for each service and program be conspicuously published on each courts website and prominently displayed at multiple
locations, accessible to the disabled, in each courthouse.
i. Requiring every judge, upon assignment of a case, to state that disabled persons are encouraged to request reasonable
accommodations by engaging in the interactive process, in addition to the maximum number of days within which time the
request must be decided.
373
j. Requiring that all judges and court personnel participate in regular and recurring education to assure that they do not
engage in any type of bias, discrimination, coercion and retaliation against disabled persons.
5. Maintain continuing jurisdiction over this action until defendants can prove that they are in compliance with ADA, Section
504 and every order of this Court.
6. Award compensatory and general damages for plaintiff against defendants and each of them, in an amount to be
determined according to proof.
7. Award plaintiff her costs, expenses and reasonable attorneys fees pursuant to 42 U.S.C. 12205, 28 C.F.R. 35,175, 29
U.S.C. 794(a) and 42 U.S.C. 1988.
8. Order such other and further relief as the Court may deem just and proper.
DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b), Federal Rules of Civil Procedure, plaintiff demands trial by jury for all the issues plead herein so
triable.
Appendix not available.

End of Document
374
Reply in Support of Motion to Dismiss Plaintiffs First Amended

Complaint By Defendants Superior Court of California, County of
San Diego, The Honorable Richard G. Cline, The Honorable Lisa
Guy-Schall, and The Honorable Yuri Hofmann, Judges, and The
Honorable Anthony Brandenburg Commissioner, of the Superior
Court of California, County of San Diego
Robert VOLNEY; Justice sic], Plaintiff, v. SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division,
et al., Defendants. | United States District Court, S.D. California.
Search Details
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Jurisdiction:
California
Delivery Details
Date:
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1111
Comment:
Robert VOLNEY; Justice sic], Plaintiff, v. SUPERIOR..., 2003 WL 23838876...

Robert VOLNEY; Justice [sic], Plaintiff,
v.
SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division, et al., Defendants.
Case No. 03CV01036J(POR).
July 9, 2003.
Reply in Support of Motion to Dismiss Plaintiffs First Amended Complaint By Defendants Superior Court of
California, County of San Diego, The Honorable Richard G. Cline, The Honorable Lisa Guy-Schall, and The
Honorable Yuri Hofmann, Judges, and The Honorable Anthony Brandenburg Commissioner, of the Superior Court
of California, County of San Diego
Pamela F. Estabrook, General Counsel (Bar No. 120542, Superior Court of California, County of San Diego, By Cheryl L.
Brierton, Litigation Attorney (Bar No. 108242), 220 West Broadway, San Diego, California 92101, Telephone: (619)
531-3563, Facsimile: (619) 685-6606, Attorneys for Defendants, Superior Court of California, County of San Diego
(erroneously sued as Superior Court of San Diego County, North County Division), The Honorable Richard G. Cline, The
Honorable Lisa Guy-Schall, and The Honorable Yuri Hofmann, Judges, and The Honorable Anthony Brandenburg,
Commissioner, of the Superior Court of California, County of San Diego.
Judge: The Hon. Napoleon A. Jones, Jr.
Date: July 21, 2003
Time: 10:30 p.m.
Ctrm: 12
Plaintiff Robert Volney Justices opposition to the Motion to Dismiss by Defendants, the Honorable Richard G. Cline
(Judge Cline), Lisa Guy-Shall (Judge Guy-Shall), and Yuri Hofmann (Judge Hofmann), Judges, and the Honorable
Anthony Brandenburg (Commissioner Brandenburg), Commissioner, of the Superior Court of California, County of San
Diego (California Court), and the California Court itself (collectively, California Judges or Defendants), essentially
takes the position that Plaintiff is a sovereign, his private property in Fallbrook, California is not part of the State of
California, and he and the property are not subject to the laws of California.1 In Plaintiffs personal world, the California
Judges are not judges, the California Court is a commercial business, and counsel of record are not authorized to represent the
California Judges.2
1
E.g., Notice of Refusal for the: [sic] Order Denying the Motion for Temporary Restraining Order and Preliminary Injunction
Signed by Judge Napoleon A. Jones, Jr., United States District Court on June 6, 2003 filed June 27, 2003, page 6, line 11 through
page 8, line 17 [pp:11]; 11:24 - 14:7; Notice of Refusal for the: [sic] Notice of Motion and Motion to Dismiss Plaintiffs First
Amended Complaint by Defendants Superior Court of California, County of San Diego, The Honorable Lisa Guy-Schall, the
Honorable Yuri Hofmann, Judges, and the Honorable Anthony Brandenburg, Commissioner of the Superior Court of California,
County of San Diego filed June 27, 2003, 7:13 - 9:13; 11:24 - 13:5.
E.g., Notice of Refusal for the: [sic] Order Denying the Motion for Temporary Restraining Order and Preliminary Injunction
Signed by Judge Napoleon A. Jones, Jr., United States District Court on June 6, 2003, 7:14 - 8:17; 14:9 - 15:1; Notice of Refusal
for the: [sic] Notice of Motion and Motion to Dismiss Plaintiffs First Amended Complaint by Defendants Superior Court of
California, County of San Diego, The Honorable Lisa Guy-Schall, the Honorable Yuri Hoffman, Judges, and the Honorable
Anthony Brandenburg, Commissioner of the Superior Court of California, County of San Diego filed June 27, 2003, 14:9 - 15:1.
376
There is no legal authority supporting Plaintiffs frivolous position that he may create his own government and invent the
legal rules he chooses. As such, the California Judges ask this Court to grant their motion to dismiss based on judicial
immunity, state sovereign immunity, the Rooker-Feldman doctrine, and insufficient service of process, as set forth in the
moving papers. E.g., Stump v. Sparkman, 435 U.S. 349, 355-356 (1978), quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871);
Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 753 (2002); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); Monell v.
Dept of Social Services, 436 U.S. 658, 691 (1978); Bianchi v. Rylaarsdam, 334 F.3d 895, 2003 U.S. App. LEXIS 13035,
2003 WL 21480364 (9th Cir. Cal. June 27, 2003); Fed. R. Civ. P. 12(b)(5).
End of Document
377
Notice of Refusal for the: Declaration of Cheryl Brierton in

Support of Motion to Dismiss Plaintiffs First Amended Complaint
Robert VOLNEY; Justice, the Sovereign man; Sovereign (the Plaintiff)., v. SUPERIOR COURT OF SAN DIEGO
COUNTY, North County Division; et al; Defendants. | United States District Court, S.D. California.
Search Details
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Jurisdiction:
California
Delivery Details
Date:
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Client ID:
1111
Comment:
Robert VOLNEY; Justice, the Sovereign man; Sovereign..., 2003 WL 25674840...

Robert VOLNEY; Justice, the Sovereign man; Sovereign (the Plaintiff).,
v.
SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division; et al; Defendants.
No. 03-CV-1036-J (POR).
June 27, 2003.
Notice of Refusal for the: Declaration of Cheryl Brierton in Support of Motion to Dismiss Plaintiffs First Amended
Complaint
Robert Volney; Justice - the Sovereign-man, c/o general delivery, Fallbrook Post Office, Fallbrook, California state,
non-domestic mail, Robert Volney; Justice as the Sovereign man.
The jurisdiction of this COURTS judicial proceeding [i.e. 03-CV-1036-J(POR)] is under the Sovereigns American flag
described in 4 U.S.C. 1-2 [NO GOLD, FRINGE OR TASSELS], not in any territory or possession of the UNITED STATES.
This Refusal, refuses for fraud, and returns in its entirety the DECLARATION OF CHERYL BRIERTON IN SUPPORT OF
MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT signed on or about June 10, 2002 by Cheryl L.
Brierton, a woman.
NOTICE OF REFUSAL FOR FRAUD: FEDERAL RULES OF CIVIL PROCEDURE 12(b)(6), F.R.C.P. 12(c)
The Sovereign man (the Plaintiff), Robert Volney; Justice in the above titled action, being first duly sworn to tell the truth,
having first hand knowledge of the facts herein, and being competent to testify, do affirm that the facts herein are stated by
the Sovereign man herein and are true, correct and complete, and are stated under the penalties of perjury under the laws of
the united States of America.
<<signature>>
Robert Volney; Justice the Sovereign man
(the Plaintiff)
I.
Citation reference and definitions
Hereinafter: F.R.C.P. = Federal Civil Rules of Procedure. U.S.C.A. = United States Code Annotated. U.S.C.S. = United
States Code Service. UNITED STATES = case having the venue and jurisdiction originating in the DISTRICT OF
COLUMBIA United States of America = The federal entity defined by Article 1, Section 8, Clause 17 of its Constitution
united States of America = One of the fifty sovereign states, not in the UNITED STATES, United States of America, or under
the War Powers Act.
There will be no words [term] of art used on this Record, all words are defined and shall be used on this Record as such. See
as a principal of law, as an opinion in, Malat v. Riddell, 383 U.S. 569, 16 L.Ed. 2d 102, 86 S. Ct. 1030 (1966). The words
herein shall have the same meaning to the court and any party in this judicial proceeding and no other meanings. For
example, person is not a man, but a CORPORATION.
379
This Notice of Refusal for fraud, pursuant to F.R.C.P. 9(b) is brought by, Robert Volney; Justice, the Sovereign man
hereinafter the Sovereign against the above named COURT and in the above titled matters, and against the fraudulent
DECLARATION OF CHERYL BRIERTON IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS FIRST AMENDED
COMPLAINT, mentioned hereinafter as FIRST FRAUDULENT DISPOSITIVE MOTION, which is returned in its
entirety and not accepted.
1). Definition: Case Incorporated: the formation of a legal body, with the quality of perpetual existence and succession. (2).
consisting of an association of numerous individuals. (3). matters relating to the common purpose of the association, within
the scope of the powers and authorities conferred upon such bodies with the quality of perpetual existence and successions. In
civil law, the union of one domain to another. (Ref. Blacks Law Dictionary 5th edition, Pg.690). Case Incorporated will
establish the legal bound of the members of this lawful assembly to solve a specific Case Number and the issues.
2). This Incorporated Case is defined to be an oral hearing and a Trial by Jury. Pursuant to F.R.C.P. Rule 9(b) Dispositive
Motions filed in this case are fraud, and will give rise to F.R.C.P. Rule 12(b)(1)(2)(6)(7), as to those dispositive motions.
Parties who sign and file into this Incorporated Case any dispositive motions will be in violation of F.R.C.P. Rule 11, and
will be incorporating themselves as parties in a conspiracy to the crimes and violations defined in the First Amended
Complaint.
II.
The Sovereign enters into contract with the COURT
3). In as much as the United States District Court, Southern District of California, hereinafter the COURT, has not called to
order Incorporated Case No. 03-CV-1036-J (POR), hereinafter the Suit.
4). The Sovereign, on May 22, 2003, paid $150.00 by postal money order to the clerk of courts for the parties to the Suit to be
heard in oral hearings and for a trial by jury, to the summons and complaint in the Suit. The clerk accepted the postal money
order and by receipt sealed the contract between the Sovereign and this COURT for oral hearing(s) and trial by jury. The
First Amendment to the Constitution of the united States of America guarantees petitioning the government for redress of
grievances. The Sixth Amendment to the Constitution of the united States of America guarantees the right to a speedy and
public trial by an impartial jury and the right to confront witnesses. The Seventh Amendment guarantees the right to a trial by
jury. The Fourteenth Amendment to the Constitution of the united States of America guarantees in section 1, that no state
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its
jurisdiction the equal protection of the law. See Article VI of the Constitution of the united States of America: executing the
contract with this COURT fully obeying the F.R.C.P.
III.
DECLARATION OF CHERYL BRIERTON IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS FIRST
AMENDED COMPLAINT is a fraud; the COURT is under obligation of a contract with the Sovereign to issue the relief
the Sovereign demands
5). The contract with the COURT was for oral hearings and trial by jury. Therefore the FIRST FRAUDULENT
DISPOSITIVE MOTION is a fraud. The COURT shall fully adhere and obey all court rules and procedures. Refer to
paragraphs 1 and 2.
6). This Refusal is made in good faith and with no bad faith to the Defendants or to this COURT.
380
7). The Sovereign in the above captioned case give Notice of Refusal.
8). The COURT must grant a trial by jury or if no facts are in controversy render a decision in favor of the facts. In this Suit,
render a judgment in favor of the Sovereign. The law provides for a remedy, the Sovereign has remedy against Defendants.
9). The Sovereign accuses PAMELA F. ESTABROOK, GENERAL COUNSEL with no NOTICE OF APPEARANCE and
supporting affidavit to represent the Defendants and CHERYL L. BRIERTON, LITIGATION ATTORNEY also with no
NOTICE OF APPEARANCE and supporting affidavit to represent the Defendants: who pursuant to 42 U.S.C.A. 1986 have
knowledge of the law, as PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION
ATTORNEY have taken an oath of office, and are bound by professional responsibility not to obstruct justice, and pursuant
to 18 U.S.C.A. 242, not to deprive the Sovereigns rights to trial by jury, this being an extortion of rights pursuant to 18
U.S.C.A. 872, and Perjury as to Oath of Office, pursuant to 18 U.S.C.A. 1621, and being in Conspiracy with the
DEFENDANTS HONORABLE RICHARD G. CLINE, HONORABLE LISA GUY-SCHALL, HONORABLE YURI
HOFMANN, COMMISSIONER ANTHONY BRANDENBURG herein to compel the Sovereigns compliance to a contract
that the Sovereign has not made under equity, maritime or admiralty jurisdiction, Constitution of the united States of
America, Article 1, Section 10, 42 U.S.C.A. 1985, and 18 U.S.C.A. 242, causing the Sovereign injury pursuant to 42
U.S.C.A. 1983.
10). Stare Decisis: Policy of Courts to stand by precedent and not to disturb settled point. Neff v. George 364 Ill. 306, 4 N.E.
2d 388 390, 391. Doctrine that, when a court has once laid down a principle of law as applicable to a certain state of facts;
regardless of whether the parties and property are the same. Horne v. Moody Tex. Civ. App. 146 S.W.2d 505, 509, 510.
Under doctrine a deliberate or solemn decision of court made after argument on question of law fairly arising in the case, and
necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower
rank in subsequent cases where the very point is again in controversy. State v Mellenberger, 163 Or. 233, 95 P2d. 709, 719,
720.
IV.
Jurisdiction on the Refusal on Case No. 03-CV-1036-J (POR) is in Law and not equity, maritime or admiralty. The Suit is
in the sovereign republic, not any territory or possession of the UNITED STATES.
11). The Sovereigns right to oral hearings and trial by jury is secured by the Constitution of the united State of America. The
Sovereign is entitled to a trial by jury. This Refusal is based on contract for oral hearings and for a jury trial, not on subject
matter, but on procedural fraud and violations by PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L.
BRIERTON, LITIGATION ATTORNEY. Oral hearings and jury trial is preempted by judgment on the pleadings in favor of
the Sovereign due to the facts perfected under affidavit without dispute of Defendants, who agreed to all facts.
V.
This action was not filed to review any of the SUPERIOR COURT OF SAN DIEGO COUNTYS fraudulent orders, but to
enjoin the Defendants from invading the Sovereigns private property land, which is not located within the STATE OF
CALIFORNIA or the UNITED STATES [FEDERAL ZONE]
12). The Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G. Cline, Lisa Guy-Scha?? Yuri Hofmann,
and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND WEINER, INC., Larry Weiner, WELLS
FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC. have all
invaded the Sovereigns private property [land] above-mentioned in direct violation of the their charter agreement with the
UNITED STATES and the STATE OF CALIFORNIA and have taken hostile possession of the Sovereigns private property
[land] which the Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G. Cline, Lisa Guy-Schall, Yuri
381
Hofmann, and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND WEINER, INC., Larry Weiner,
WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC. have
no jurisdiction over.
VI.
The STATE OF CALIFORNIA and its PROBATE CODE have no statute and regulation and it is not law and is
unenforceable against the Sovereign who is not a CITIZEN/SUBJECT/RESIDENT of the STATE OF CALIFORNIA
13). The STATE OF CALIFORNIA where the Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G.
Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND
WEINER, INC., Larry Weiner, WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE
TRUSTEE SERVICES, INC. are all chartered have/had no authority to administer the PROBATE CODE because it does not
have any statute and regulation. The PROBATE CODE is not law and it does/did not have jurisdiction over the Sovereign or
the Sovereigns private property.
VII.
The PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY are
in violation of F.R.C.P. RULE 19 when it denied the relief demanded of the Sovereign
14). The PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY
erred in making Defendants FICTIONS. The DEFENDANTS HONORABLE RICHARD G. CLINE, HONORABLE LISA
GUY-SCHALL, HONORABLE YURI HOFMANN, COMMISSIONER ANTHONY BRANDENBURG are in the
FICTION and the full capitalization is conclusive evidence of such and hereinafter FICTIONS. These FICTIONS are not
parties to this Suit. The Sovereign is making it very clear to this COURT and PAMELA F. ESTABROOK, GENERAL
COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY are not authorized to represent the Defendants
Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg. The Defendant SUPERIOR COURT OF SAN
DIEGO COUNTY is not a public agency, but the franchise name which the SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO operates its commercial business. The Defendants Richard G. Cline, Lisa Guy-Schall, Yuri
Hofmann, and Anthony Brandenburg are not judges. The Sovereign is/was not a RESIDENT of the STATE OF
CALIFORNIA and the Defendants Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg did not act
has judges because their was no jurisdiction to proceed in the SUPERIOR COURT OF SAN DIEGO COUNTY against the
Sovereign or the Sovereigns private property, which the Defendants are/were all well aware of at that time and had
knowledge of such. The Sovereign named the Defendants in their private capacities as man or woman, not as judges. The
Defendants are not judges when they have no jurisdiction and commit crimes against the Sovereign, but are men or women in
their private capacities. The Defendants are/were not judges because they did not have jurisdiction and they knew it. The
Sovereign noticed the Defendants they lacked jurisdiction over the Sovereign and the Sovereigns private property located at
1225 Senwood Way, Fallbrook, California Republic 28, ZIP EXEMPT. The doctrine of judicial immunity does not protect
RESIDENTS of the STATE OF CALIFORNIA who disregard the law and commit crimes against the Sovereign. The
Sovereign identified the Defendants by the proper Christian appellation spelling of their name, in the Suit. The FICTIONS do
not identify the Defendants, in accordance with 57 Am Jur 2d, Name 1, 3, 4 and 80. Non-fiction spelling has the first letter of
the name in capital and the rest is lower case. The FICTIONS are not the proper parties to the Suit pursuant to F.R.C.P.
RULE 19.
15). The FICTIONS dispositive motion and/or dilatory plea, is meant to delay the Suit and cost needless delay and an
increase in cost of litigation to the Sovereign. The Sovereign refuses in its entirety the dispositive motion filed by the
FICTIONS and does not accept it. The FICTIONS with its dispositive motion and/or dilatory plea is a fraud and meant to
delay the Suit and place fraud upon this COURT, but does not constitute a resolution on the merits.
382
16). Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg as man or woman under obligation of a
contract pursuant to OATH OF OFFICE and breach of fiduciary duty, hereinafter Defendants have admitted all material
facts in the First Amended Complaint by uncontroverted affidavit.
VIII.
PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY under
judicial mandate as public servants under public trust acted outside their OATH OF OFFICE in filing the FIRST
FRAUDULENT DISPOSITIVE MOTION
Blacks Law Dictionary - First Edition 1891 page 222 Color of office. An act unjustly done by the countenance of an office,
being grounded upon corruption, to which the office is as a shadow and color.
Blacks Law Dictionary - First Edition 1891 page 658 Judicial acts. Acts requiring the exercise of some judicial discretion,
as distinguished from ministerial acts, which require none.
17). PAMALA F. ESTABROOK and CHERYL L. BRIERTON, ATTORNEYS FOR THE FICTIONS, hereinafter STATE
ATTORNEYS are in violation of Disciplinary Rules 1-102(A)(1)(2)(3)(4)(5)(6): (A) A lawyer shall not: (1) Violate a
Disciplinary Rule. (2) Circumvent a Disciplinary Rule through actions of another. (3) Engage in illegal conduct involving
moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in any other
conduct that adversely reflects on their fitness to practice law.
IX.
Further fraud by the STATE ATTORNEYS, the Sovereign is not a CORPORATION or FICTION or any vessel by
commerce, nor creation by DEPARTMENT OF COMMERCE or governmental body/entity
18). The Sovereign is not pro se or pro per and has no knowledge ofpro se or pro per or its usage on this Record. The
Sovereign is not ROBERT VOLNEY; JUSTICE or ROBERT VOLNEY JUSTICE [fictitious names]. The Sovereign is a
man, who is alive, not created by government. The Sovereign is not a neutral merchant vessel, vassal or subject. The
jurisdiction of this COURT is under the Sovereigns American flag described by 4 U.S.C.A. 1-2 [NO GOLD, FRINGE OR
TASSELS] and not in any territory or possession of the UNITED STATES. The FIRST FRAUDULENT DISPOSITIVE
MOTION from the STATE ATTORNEYS is addressed to ROBERT VOLNEY; JUSTICE [fictitious name], not the
Sovereign. The Sovereign is known only by his proper Christian appellation name properly spelled Robert. The
Sovereigns family name is properly spelled Justice. To properly identify the Sovereign the name must by written Robert
Volney; Justice in accordance with 57 Am Jur 2d, Name 1, 3, 4 and 80. The first letter of the name is capital and the rest is
lower case. The Sovereign never used any aliases or fictitious names and the Sovereign is not known by any other name. A
name spelled in all capital letters or a name initialed is not a proper noun denoting a specific man or woman but is a
fictitious name or the name of a dead person or a nom de guerra, according to the Gregg Manual of English Grammar.
ROBERT VOLNEY; JUSTICE or ROBERT VOLNEY JUSTICE are fictitious names, the names of a dead person or a nom
de guerra.
BLACKS LAW DICTIONARY - Sixth Edition page 624 Fictitious name. A counterfeit, alias, feigned, or pretended name
taken by a person, differing in some essential particular from his true name (consisting of Christian name and patronymic,
with the implication that it is meant to deceive or mislead.
X.
383
Allegations v. Facts
19). The Sovereigns First Amended Complaint is founded on facts by first hand knowledge, not allegations. A fact is a truth,
as distinguished from fiction or error. The Sovereigns First Amended Complaint is based on the Sovereigns statements of
facts. When the Sovereign asserts allegations the use of the term alleges denotes states under personal knowledge of the
truth. Remember the COURT does not have equity, maritime or admiralty jurisdiction over the Sovereign. The Sovereign is
under the jurisdiction of his American flag and will enter the bar under the protection and jurisdiction of his American flag.
BLACKS LAW DICTIONARY - Sixth Edition pages 591-592 Fact. A thing done; an action performed or an incident
transpiring; an event or circumstance; an actual occurrence; an actual happening in time or space or an event mental or
physical; that which has taken place. City of South Eulid v. Clapa??s, 6 Ohio Misc. 101, 213 N.E.2d 828, 832. A fact is either
a state of things, that is, an existence, or a motion, that is, an event. The quality of being actual; actual existence or
occurrence. Evidence. A circumstance, event or occurrence as it actually takes or took place; a physical object or appearance,
as it usually exists or existed. An actual and absolute reality, as distinguished from mere supposition or opinion. A truth, as
distinguished from fiction or error.
BLACKS LAW DICTIONARY - Sixth Edition page 74 Allegation. The assertion, claim, declaration, or statement of a party
to an action, made in pleading, setting out what he expects to prove. A material allegation in a pleading is one essential to the
claim or defense. In ecclesiastical law, the statement of the facts intended to be relied on in support of the contested suit.
XI.
The Sovereign has an allodial title [paramount title] to his private property by his Private Land Claim and Affidavit of
Private Land Claim [Exhibits 2 and 3 of the First Amended Complaint] and the Sovereign as marketable title to his
private property that is located at 1225 Senwood Way, Fallbrook, California Republic 28, ZIP EXEMPT, which the
STATE ATTORNEYS ignored in its FIRST FRAUDULENT DISPOSITIVE MOTION to deceive this COURT
20). The Sovereign has an allodial title [paramount title] to his private property located at 1225 Senwood Way, Fallbrook,
California Republic 28, ZIP EXEMPT, which is not within the STATE OF CALIFORNIA by his Private Land Claim which
has the same effect as a declaration of Homestead and Land Patent, but a greater effect with no limitations. The law does not
require that the Sovereign file a formal declaration of Homestead and Land Patent. The Sovereigns allodial title is free; not
holden of any lord or superior [i.e. STATE OF CALIFORNIA]; owned without obligation of vassalage; or fealty; the
opposite of feudal. All CITIZENS/SUBJECTS/RESIDENTS of the STATE OF CALIFORNIA are SERVANTS to it and the
STATE OF CALIFORNIA is their MASTER. The Sovereign is self-governing and independent and is not part of the STATE
OF CALIFORNIA. The Sovereigns Private Land Claim is a valid instrument and operates in the same effect under the laws
of commerce. The affidavit entitled Affidavit of Facts of Private Land Claim of Your Affiants private property [land]
known as 1225 Senwood Way, Fallbrook, California state, Document Number #2002-0990849 which was served on all
interested parties and was unrebutted. This affidavit and the Private Land Claim have perfected the Sovereigns allodial title
to the private property located at 1225 Senwood Way, Fallbrook, California state. The Defendant Superior Court does/did not
have jurisdiction to proceed against the Sovereign or the Sovereigns private property. The Sovereigns private property is
located at 1225 Senwood Way, Fallbrook, California Republic 28, ZIP EXEMPT, which is not located within the STATE OF
CALIFORNIA and the STATE OF CALIFORNIA has no jurisdiction over the Sovereign or the Sovereigns private property.
The Sovereigns private property did/does not fall within the legislative jurisdiction of the UNITED STATES or the STATE
OF CALIFORNIA. The Sovereign has allodial title to his private property located at 1225 Senwood Way, Fallbrook,
California Republic 28, ZIP EXEMPT or 1225 Senwood Way, Fallbrook, California state, which all the Defendants ignore.
The Sovereigns allodial title is superior and is recognized and acknowledged by the UNITED STATES. In addition, the
Sovereigns marketable title to his private property is one in which there is no doubt involved, as a matter either of law or
fact. Whelan v Rossiter, ?? CA 701, 82 P 1082; Block v Citizens Trust & Sav. Bank, 57 CA 518, 207 P 510.
XII.
384
The Sovereign is not a RESIDENT of the FEDERAL ZONE and as no ADDRESS in the STATE OF CALIFORNIA
21). The word RESIDENT has many meanings in law, largely determined by statutory context in which it is used. Kelm v.
Carson, C.A.Ohio, 473 F.2d 1267, 1271. The STATE ATTORNEYS have not established which meaning of RESIDENT it
refers to. The Sovereign has no RESIDENCE in the STATE OF CALIFORNIA. The STATE OF CALIFORNIA is a
FEDERAL ENCLAVE. The Sovereigns mail was non-domestic in origin, and in destination, because the term domestic,
as that term is utilized in the UNITED STATES POSTAL SERVICE (USPS) Domestic Mail Services Manual, Section
A010.1.2d (no ZIP*4 discount), means the federal zone, i.e. the territory and other property over which the United States has
legislative jurisdiction, pursuant to Article 1, Section 8, Clause 17 [1:8:17], and Article 4, Section 3, Clause 2 [4:3:2], of
the Constitution for the United States of America, as lawfully amended.
22). This COURT, STATE ATTORNEYS and the Defendants must omit the use of ZIP codes anywhere within the official
record now before this COURT. UNITED STATES POSTAL SERVICE ZIP Code use is voluntary, except where a ZIP*4 is
claimed. All mail sent with a ZIP codes will be refused by the Sovereign and returned in its entirety and not accepted. See
Domestic Mail Services Manual, Section A010.1.2d, formerly Section 122.32. The UNITED STATES POSTAL SERVICE
cannot by law discriminate against the non-use of ZIP codes, see Public Law 91-375, Section 403.
XIII.
The UNITED STATES POSTAL SERVICE honors the title of Sovereign to Robert Volney; Justice and all RESIDENTS
of the UNITED STATES and the STATE OF CALIFORNIA are to honor the Sovereigns demands and respect his title
23). Robert Volney; Justice is the Sovereign and the UNITED STATES and its RESIDENTS had honored and acknowledged
the Sovereigns title and exemption from the FEDERAL ZONE. So shall, the STATE OF CALIFORNIA and its
RESIDENTS, which include the STATE ATTORNEYS who are required to honor the Sovereigns title by law.
XIV.
The name of SUPERIOR COURT OF SAN DIEGO COUNTY is the franchise name the SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO operates and transacts commercial business and the DOCTRINE OF
JUDICIAL IMMUNITY and DOCTRINE OF SOVEREIGN IMMUNITY are ineffective and have no jurisdiction over
the Sovereign or his private property
24). The SUPERIOR COURT OF SAN DIEGO COUNTY is the franchise name the SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO conducts its commercial business. The SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO only has jurisdiction with an individual who is a RESIDENT of the STATE OF CALIFORNIA.
The Sovereign is/was not a RESIDENT and SUPERIOR COURT OF SAN DIEGO COUNTY or SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO had no jurisdiction over the Sovereign. The SUPERIOR COURT OF SAN
DIEGO COUNTY/SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO through its agents invaded and
fraudulently conveyed the Sovereigns private property [land] and prohibited the Sovereign from entering any Superior Court
building in the COUNTY OF SAN DIEGO, without having any contract with the Sovereign. The Defendants are liable for
the injuries and damages to the Sovereign. This judicial proceeding is/was not at anytime under equity, maritime or admiralty
jurisdiction, but under the jurisdiction of the Sovereigns American flag, where there is no equity, maritime or admiralty
jurisdiction.
Demand for Relief

The Sovereign demands the COURT enter judgment on the pleadings in favor of the Sovereign pursuant to F.R.C.P. RULE
385
12(c) against all the Defendants who refuse to answer the Sovereigns First Amended Complaint.
I declare the foregoing to be true under penalty of perjury under the laws of the united States of America under the
Sovereigns American flag described by 4 U.S.C. 1-2 [NO GOLD, FRINGE OR TASSELS], not in any territory or
possession of the UNITED STATES.
<<signature>>
Robert Volney; Justice - the Sovereign man
[the Plaintiff]
Seal of right thumb

End of Document
386
Notice of Refusal for the: Memorandum of Points and

Authorities in Support of Motion to Dismiss by Defendants Superior
Court of California, County of San Deigo, The Honorable Richard G.
Cline, The Honorable Lisa Guy-Schall and The Honorable Yuri
Hofmann, Judges, and The Honorable Anthony. Brandenburg,
Commissioner of the Superior Court of California, County of San
Diego
Robert VOLNEY; Justice, the Sovereign man; Sovereign (the Plaintiff), v. SUPERIOR COURT OF SAN DIEGO
COUNTY, North County Division; et al; Defendants. | United States District Court, S.D. California.
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Client ID:
1111
Comment:

Robert VOLNEY; Justice, the Sovereign man; Sovereign (the Plaintiff),
v.
SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division; et al; Defendants.
Case No.: 03-CV-1036-J (POR).
June 27, 2003.
The jurisdiction of this COURTS judicial proceeding [i.e. 03-CV-1036-J (POR)] is under the Sovereigns American flag
described in 4 U.S.C. 1-2 [NO GOLD, FRINGE OR TASSELS], not in any territory or possession of the UNITED
STATES.
Notice of Refusal for the: Memorandum of Points and Authorities in Support of Motion to Dismiss by Defendants
Superior Court of California, County of San Deigo, The Honorable Richard G. Cline, The Honorable Lisa Guy-Schall
and The Honorable Yuri Hofmann, Judges, and The Honorable Anthony. Brandenburg, Commissioner of the
Superior Court of California, County of San Diego
Robert Volney; Justice - the sovereign man, c/o general delivery, Fallbrook Post Office, Fallbrook, California state
non-domestic mail.
This Refusal, refuses for fraud, and returns in its entirety the MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO DISMISS BY DEFENDANTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN
DIEGO, THE HONORABLE RICHARD G. CLINE, THE HONORABLE LISA GUY-SCHALL, AND THE HONORABLE
YURI HOFMANN, JUDGES, AND THE HONORABLE ANTHONY BRANDENBURG, COMMISSIONER, OF THE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO signed on or about June 10, 2002 by Cheryl L.
Brierton, a woman.
NOTICE OF REFUSAL FOR FRAUD: FEDERAL RULES OF CIVIL PROCEDURE 12(b)(6), F.R.C.P. 12(c)
The Sovereign man (the Plaintiff), Robert Volney; Justice in the above titled action, being first duly sworn to tell the truth,
having first hand knowledge of the facts herein, and being competent to testify, do affirm that the facts herein are stated by
the Sovereign man herein and are true, correct and complete, and are stated under the penalties of perjury under the laws of
the united States of America.
I.
Citation reference and definitions
Hereinafter: F.R.C.P. = Federal Civil Rules of Procedure.
U.S.C.A. = United States Code Annotated.
U.S.C.S. = United States Code Service.
UNITED STATES = case having the venue and jurisdiction originating in the DISTRICT OF COLUMBIA
United States of America = The federal entity defined by Article 1, Section 8, Clause 17 of its Constitution
388
united States of America = One of the fifty sovereign states, not in the UNITED STATES, United States of America, or under
the War Powers Act.
There wilt be no words [term] of art used on this Record, all words are defined and shall be used on this Record as such. See
as a principal of law, as an opinion in, Malat v. Riddell, 383 U.S. 569, 16 L.Ed. 2d 102.86 S. Ct. 1030 (1966). The words
herein shall have the same meaning to the court and any party in this judicial proceeding and no other meanings. For
example, person is not a man, but a CORPORATION.
This Notice of Refusal for fraud, pursuant to F.R.C.P. 9(b) is brought by, Robert Volney; Justice, the Sovereign man
hereinafter the Sovereign against the above named COURT and in the above titled matters, and against the fraudulent
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO, THE HONORABLE RICHARD G. CLINE, THE
HONORABLE LISA GUY-SCHALL, AND THE HONORABLE YURI HOFMANN, JUDGES, AND THE HONORABLE
ANTHONY BRANDENBURG, COMMISSIONER, OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN
DIEGO, mentioned hereinafter as FIRST FRAUDULENT DISPOSITIVE MOTION, which is returned in its entirety and
not accepted.
1). Definition: Case Incorporated: the formation of a legal body, with the quality of perpetual existence and succession. (2).
consisting of an association of numerous individuals. (3). matters relating to the common purpose of the association, within
the scope of the powers and authorities conferred upon such bodies with the quality of perpetual existence and successions. In
civil law, the union of one domain to another. (Ref. Blacks Law Dictionary 5th edition, Pg.690). Case Incorporated will
establish the legal bound of the members of this lawful assembly to solve a specific Case Number and the issues.
2). This Incorporated Case is defined to be an oral hearing and a Trial by Jury. Pursuant to F.R.C.P. Rule 9(b) Dispositive
Motions filed in this case are fraud, and will give rise to F.R.C.P. Rule 12(b)(1)(2)(6)(7), as to those dispositive motions.
Parties who sign and file into this Incorporated Case any dispositive motions will be in violation of F.R.C.P. Rule 11, and
will be incorporating themselves as parties in a conspiracy to the crimes and violations defined in the First Amended
Complaint.
II.
The Sovereign enters into contract with the COURT
3). In as much as the United States District Court, Southern District of California, hereinafter the COURT, has not called to
order Incorporated Case No. 03-CV-1036-J (POR), hereinafter the Suit.
4). The Sovereign, on May 22, 2003, paid $150.00 by postal money order to the clerk of courts for the parties to the Suit to be
heard in oral hearings and for a trial by jury, to the summons and complaint in the Suit. The clerk accepted the postal money
order and by receipt sealed the contract between the Sovereign and this COURT for oral hearing(s) and trial by jury. The
First Amendment to the Constitution of the united States of America guarantees petitioning the government for redress of
grievances. The Sixth Amendment to the Constitution of the united States of America guarantees the right to a speedy and
public trial by an impartial jury and the right to confront witnesses. The Seventh Amendment guarantees the right to a trial by
jury. The Fourteenth Amendment to the Constitution of the united States of America guarantees in section 1, that no state
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its
jurisdiction the equal protection of the law. See Article VI of the Constitution of the united States of America: executing the
contract with this COURT fully obeying the F.R.C.P.
III.
389
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO, THE HONORABLE RICHARD G. CLINE,
THE HONORABLE LISA GUY-SCHALL, AND THE HONORABLE YURI HOFMANN, JUDGES, AND THE
HONORABLE ANTHONY BRANDENBURG, COMMISSIONER, OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO is a fraud; the COURT is under obligation of a contract with the
Sovereign to issue the relief the Sovereign demands
5). The contract with the COURT was for oral hearings and trial by jury. Therefore the FIRST FRAUDULENT
DISPOSITIVE MOTION is a fraud. The COURT shall fully adhere and obey all court rules and procedures. Refer to
paragraphs 1 and 2.
6). This Refusal is made in good faith and with no bad faith to the Defendants or to this COURT.
7). The Sovereign in the above captioned case give Notice of Refusal.
8). The COURT must grant a trial by jury or if no facts are in controversy render a decision in favor of the facts. In this Suit,
render a judgment in favor of the Sovereign. The law provides for a remedy, the Sovereign has remedy against Defendants.
9). The Sovereign accuses PAMELA F. ESTABROOK, GENERAL COUNSEL with no NOTICE OF APPEARANCE and
supporting affidavit to represent the Defendants and CHERYL L. BRIERTON, LITIGATION ATTORNEY also with no
NOTICE OF APPEARANCE and supporting affidavit to represent the Defendants: who pursuant to 42 U.S.C.A. 1986 have
knowledge of the law, as PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION
ATTORNEY have taken an oath of office, and are bound by professional responsibility not to obstruct justice, and pursuant
to 18 U.S.C.A. 242, not to deprive the Sovereigns rights to trial by jury, this being an extortion of rights pursuant to 18
U.S.C.A. 872, and Perjury as to Oath of Office, pursuant to 18 U.S.C.A. 1621, and being in Conspiracy with the
DEFENDANTS HONORABLE RICHARD G. CLINE, HONORABLE LISA GUY-SCHALL, HONORABLE YURI
HOFMANN, COMMISSIONER ANTHONY BRANDENBURG herein to compel the Sovereigns compliance to a contract
that the Sovereign has not made under equity, maritime or admiralty jurisdiction, Constitution of the united States of
America, Article 1, Section 10, 42 U.S.C.A. 1985, and 18 U.S.C.A. 242, causing the Sovereign injury pursuant to 42
U.S.C.A. 1983.
10). Stare Decisis: Policy of Courts to stand by precedent and not to disturb settled point. Neff v. George 364 I11. 306, 4 N.E.
2d 388 390, 391. Doctrine that, when a court has once laid down a principle of law as applicable to a certain state of facts;
regardless of whether the parties and property are the same. Horne v. Moody, Tex. Civ. App. 146 S.W.2d 505, 509, 510.
Under doctrine a deliberate or solemn decision of court made after argument on question of law fairly arising in the case, and
necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower
rank in subsequent cases where the very point is again in controversy. State v Mellenberger, 163 Or. 233, 95 P2d. 709, 719,
720.
IV.
Jurisdiction on the Refusal on Case No. 03-CV-1036-J (POR) is in Law and not equity, maritime or admiralty. The
Suit is in the sovereign republic, not any territory or possession of the UNITED STATES.
11). The Sovereigns right to oral hearings and trial by jury is secured by the Constitution of the united State of America. The
Sovereign is entitled to a trial by jury. This Refusal is based on contract for oral hearings and for a jury trial, not on subject
matter, but on procedural fraud and violations by PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L.
BRIERTON, LITIGATION ATTORNEY. Oral hearings and jury trial is preempted by judgment on the pleadings in favor of
the Sovereign due to the facts perfected under affidavit without dispute of Defendants, who agreed to all facts.
V.
390
This action was not filed to review any of the SUPERIOR COURT OF SAN DIEGO COUNTYS fraudulent orders,
but to enjoin the Defendants from invading the Sovereigns private property [land] which is not located within the
STATE OF CALIFORNIA or the UNITED STATES [FEDERAL ZONE]
12). The Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann,
and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND WEINER, INC., Larry Weiner, WELLS
FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC. have all
invaded the Sovereigns private property [land] above-mentioned in direct violation of the their charter agreement with the
UNITED STATES and the STATE OF CALIFORNIA and have taken hostile possession of the Sovereigns private property
[land] which the Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G. Cline, Lisa Guy-Schall, Yuri
Hofmann, and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND WEINER, INC., Larry Weiner,
WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC. have
no jurisdiction over.
VI.
The STATE OF CALIFORNIA and its PROBATE CODE have no statute and regulation and it is not law and is
unenforceable against the Sovereign who is not a CITIZEN/SUBJECT/RESIDENT of the STATE OF CALIFORNIA
13). The STATE OF CALIFORNIA where the Defendant SUPERIOR COURT OF SAN DIEGO COUNTY, Richard G.
Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg with the Defendant Rory William Clark, FLANS AND
WEINER, INC., Larry Weiner, WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE
TRUSTEE SERVICES, INC. are all chartered have/had no authority to administer the PROBATE CODE because it does not
have any statute and regulation. The PROBATE CODE is not law and it does/did not have jurisdiction over the Sovereign or
the Sovereigns private property.
VII.
The PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY
are in violation of F.R.C.P. RULE 19 when it denied the relief demanded of the Sovereign
14). The PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY
erred in making Defendants FICTIONS. The DEFENDANTS HONORABLE RICHARD G. CLINE, HONORABLE LISA
GUYSCHALL, HONORABLE YURI HOFMANN, COMMISSIONER ANTHONY BRANDENBURG are in the FICTION
and the full capitalization is conclusive evidence of such and hereinafter FICTIONS. These FICTIONS are not parties to
this Suit. The Sovereign is making it very clear to this COURT and PAMELA F. ESTABROOK, GENERAL COUNSEL and
CHERYL L. BRIERTON, LITIGATION ATTORNEY are not authorized to represent the Defendants Richard G. Cline, Lisa
Guy-Schall, Yuri Hofmann, and Anthony Brandenburg. The Defendant SUPERIOR COURT OF SAN DIEGO COUNTY is
not a public agency, but the franchise name which the SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
operates its commercial business. The Defendants Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony
Brandenburg are not judges. The Sovereign is/was not a RESIDENT of the STATE OF CALIFORNIA and the Defendants
Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg did not act has judges because their was no
jurisdiction to proceed in the SUPERIOR COURT OF SAN DIEGO COUNTY against the Sovereign or the Sovereigns
private property, which the Defendants are/were all well aware of at that time and had knowledge of such. The Sovereign
named the Defendants in their private capacities as man or woman, not as judges. The Defendants are not judges when they
have no jurisdiction and commit crimes against the Sovereign, but are men or women in their private capacities. The
Defendants are/were not judges because they did not have jurisdiction and they knew it. The Sovereign noticed the
Defendants they lacked jurisdiction over the Sovereign and the Sovereigns private property located at 1225 Senwood Way,
Fallbrook, California Republic 28, ZIP EXEMPT. The doctrine of judicial immunity does not protect RESIDENTS of the
STATE OF CALIFORNIA who disregard the law and commit crimes against the Sovereign. The Sovereign identified the
391
Defendants by the proper Christian appellation spelling of their name, in the Suit. The FICTIONS do not identity the
Defendants, in accordance with 57 Am Jur 2d, Name 1, 3, 4 and 80. Non-fiction spelling has the first letter of the name in
capital and the rest is lower case. The FICTIONS are not the proper parties to the Suit pursuant to F.R.C.P. RULE 19.
15). The FICTIONS dispositive motion and/or dilatory plea, is meant to delay the Suit and cost needless delay and an
increase in cost of litigation to the Sovereign. The Sovereign refuses in its entirety the dispositive motion filed by the
FICTIONS and does not accept it. The FICTIONS with its dispositive motion and/or dilatory plea is a fraud and meant to
delay the Suit and place fraud upon this COURT, but does not constitute a resolution on the merits.
16). Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, and Anthony Brandenburg as man or woman under obligation of a
contract pursuant to OATH OF OFFICE and breach of fiduciary duty, hereinafter Defendants have admitted all material
facts in the First Amended Complaint by uncontroverted affidavit.
VIII.
PAMELA F. ESTABROOK, GENERAL COUNSEL and CHERYL L. BRIERTON, LITIGATION ATTORNEY
under .judicial mandate as public servants under public trust acted outside their OATH OF OFFICE in filing the
FIRST FRAUDULENT DISPOSITIVE MOTION
Blacks Law Dictionary - First Edition 1891 page 222 Color of office. All act unjustly done by the countenance of an
office, being grounded upon corruption, to which the office is as a shadow and color.
Blacks Law Dictionary - First Edition 1891 page 658 Judicial acts. Acts requiring the exercise of some judicial
discretion, as distinguished from ministerial acts, which require none.
17). PAMALA F. ESTABROOK and CHERYL L. BRIERTON, ATTORNEYS FOR THE FICTIONS, hereinafter STATE
ATTORNEYS are in violation of Disciplinary Rules 1-102(A)(1)(2)(3)(4)(5)(6): (A) A lawyer shall not: (1) Violate a
Disciplinary Rule. (2) Circumvent a Disciplinary Rule through actions of another. (3) Engage in illegal conduct involving
moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in any other
conduct that adversely reflects on their fitness to practice law.
IX.
Further fraud by the STATE ATTORNEYS, the Sovereign is not a CORPORATION or FICTION or any vessel by
commerce, nor creation by DEPARTMENT OF COMMERCE or governmental body/entity
18). The Sovereign is not pro se or pro per and has no knowledge ofpro se or pro per or its usage on this Record. The
Sovereign is not ROBERT VOLNEY; JUSTICE or ROBERT VOLNEY JUSTICE [fictitious names]. The Sovereign is a
man, who is alive, not created by government. The Sovereign is not a neutral merchant vessel, vassal or subject. The
jurisdiction of this COURT is under the Sovereigns American flag described by 4 U.S.C.A. 1-2 [NO GOLD, FRINGE OR
TASSELS] and not in any territory or possession of the UNITED STATES. The FIRST FRAUDULENT DISPOSITIVE
MOTION from the STATE ATTORNEYS is addressed to ROBERT VOLNEY; JUSTICE [fictitious name], not the
Sovereign. The Sovereign is known only by his proper Christian appellation name properly spelled Robert. The
Sovereigns family name is properly spelled Justice. To properly identity the Sovereign the name must by written Robert
Volney; Justice in accordance with 57 Am Jur 2d, Name 1, 3, 4 and 80. The first letter of the name is capital and the rest is
lower case. The Sovereign never used any aliases or fictitious names and the Sovereign is not known by any other name. A
name spelled in all capital letters or a name initialed is not a proper noun denoting a specific man or woman but is a
fictitious name or the name of a dead person or a nom de guerra, according to the Gregg Manual of English Grammar.
ROBERT VOLNEY; JUSTICE or ROBERT VOLNEY JUSTICE are fictitious names, the names of a dead person or a nom
de guerra.
392
BLACKS LAW DICTIONARY - Sixth Edition page 624 Fictitious name. A counterfeit, alias, feigned, or pretended
name taken by a person, differing in some essential particular from his true name (consisting of Christian name and
patronymic, with the implication that it is meant to deceive or mislead.
X.
Allegations v. Facts
19). The Sovereigns First Amended Complaint is founded on facts by first hand knowledge, not allegations. A fact is a truth,
as distinguished from fiction or error. The Sovereigns First Amended Complaint is based on the Sovereigns statements of
facts. When the Sovereign asserts allegations the use of the term alleges denotes states under personal knowledge of the
truth. Remember the COURT does not have equity, maritime or admiralty jurisdiction over the Sovereign. The Sovereign is
under the jurisdiction of his American flag and will enter the bar under the protection and jurisdiction of his American flag.
BLACKS LAW DICTIONARY - Sixth Edition pages 591-592 Fact. A thing done; an action performed or an incident
transpiring; an event or circumstance; an actual occurrence; all actual happening in time or space or an event mental or
physical; that which has taken place. City of South Eulid v. Clapacs, 6 Ohio Misc. 101, 213 N.E.2d 828, 832. A fact is either
a state of things, that is, an existence, or a motion, that is, an event. The quality of being actual; actual existence or
occurrence. Evidence. A circumstance, event or occurrence as it actually takes or took place; a physical object or appearance,
as it usually exists or existed. An actual and absolute reality, as distinguished from mere supposition or opinion. A truth, as
distinguished from fiction or error.
BLACKS LAW DICTIONARY - Sixth Edition page 74 Allegation. The assertion, claim, declaration, or statement of a
party to an action, made in pleading, setting out what he expects to prove. A material allegation in a pleading is one essential
to the claim or defense. In ecclesiastical law, the statement of the facts intended to be relied on in support of the contested
suit.
XI.
The Sovereign has an allodial title [paramount title] to his private property by his Private Land Claim and
Affidavit of Private Land Claim [Exhibits 2 and 3 of the First Amended Complaint] and the Sovereign as
marketable title to his private property that is located at 1225 Senwood Way, Fallbrook California Republic 28, ZIP
EXEMPT, which the STATE ATTORNEYS ignored in its FIRST FRAUDULENT DISPOSITIVE MOTION to
deceive this COURT
20). The Sovereign has an allodial title [paramount title] to his private property located at 1225 Senwood Way, Fallbrook,
California Republic 28, ZIP EXEMPT, which is not within the STATE OF CALIFORNIA by his Private Land Claim which
has the same effect as a declaration of Homestead and Land Patent, but a greater effect with no limitations. The law does not
require that the Sovereign file a formal declaration of Homestead and Land Patent. The Sovereigns allodial title is free; not
holden of any lord or superior [i.e. STATE OF CALIFORNIA]; owned without obligation of vassalage; or fealty; the
opposite of feudal. All CITIZENS/SUBJECTS/RESIDENTS of the STATE OF CALIFORNIA are SERVANTS to it and the
STATE OF CALIFORNIA is their MASTER. The Sovereign is self-governing and independent and is not part of the STATE
OF CALIFORNIA. The Sovereigns Private Land Claim is a valid instrument and operates in the same effect under the laws
of commerce. The affidavit entitled Affidavit of Facts of Private Land Claim of Your Affiants private property [land]
known as 1225 Senwood Way, Fallbrook, California state, Document Number #2002-0990849 which was served on all
interested parties and was unrebutted. This affidavit and the Private Land Claim have perfected the Sovereigns allodial title
to the private property located at 1225 Senwood Way, Fallbrook, California state. The Defendant Superior Court does/did not
have jurisdiction to proceed against the Sovereign or the Sovereigns private property. The Sovereigns private property is
located at 1225 Senwood Way, Fallbrook, California Republic 28, ZIP EXEMPT, which is not located within the STATE OF
393
CALIFORNIA and the STATE OF CALIFORNIA has no jurisdiction over the Sovereign or the Sovereigns private property.
The Sovereigns private property did/does not fall within the legislative jurisdiction of the UNITED STATES or the STATE
OF CALIFORNIA. The Sovereign has allodial title to his private property located at 1225 Senwood Way, Fallbrook,
California Republic 28, ZIP EXEMPT or 1225 Senwood Way, Fallbrook, California state, which all the Defendants ignore.
The Sovereigns allodial title is superior and is recognized and acknowledged by the UNITED STATES. In addition, the
Sovereigns marketable title to his private property is one in which there is no doubt involved, as a matter either of law or
fact. Whelan v Rossiter, ICA 701, 82 P 1082; Block v Citizens Trust & Sav. Bank, 57 CA 518, 207 P 510.
XII.
The Sovereign is not a RESIDENT of the FEDERAL ZONE and as no ADDRESS in the STATE OF CALIFORNIA
21). The word RESIDENT has many meanings in law, largely determined by statutory context in which it is used. Kelm v.
Carson, C.A.Ohio, 473 F.2d 1267, 1271. The STATE ATTORNEYS have not established which meaning of RESIDENT it
refers to. The Sovereign has no RESIDENCE in the STATE OF CALIFORNIA. The STATE OF CALIFORNIA is a
FEDERAL ENCLAVE. The Sovereigns mail was non-domestic in origin, and in destination, because the term domestic,
as that term is utilized in the UNITED STATES POSTAL SERVICE (USPS) Domestic Mail Services Manual, Section
A010.1.2d (no ZIP+4 discount), means the federal zone, i.e. the territory and other property over which the United States has
legislative jurisdiction, pursuant to Article 1, Section 8, Clause 17 [1:8:17], and Article 4, Section 3, Clause 2 [4:3:2], of
the Constitution for the United States of America, as lawfully amended.
22). This COURT, STATE ATTORNEYS and the Defendants must omit the use of ZIP codes anywhere within the official
record now before this COURT. UNITED STATES POSTAL SERVICE ZIP Code use is voluntary, except where a Z1P+4 is
claimed. All mail sent with a ZIP codes will be refused by the Sovereign and returned in its entirety and not accepted. See
Domestic Mail Services Manual, Section A010.1.2d, formerly Section 122.32. The UNITED STATES POSTAL SERVICE
cannot by law discriminate against the non-use of ZIP codes, see Public Law 91-375, Section 403.
XIII.
The UNITED STATES POSTAL SERVICE honors the title of Sovereign to Robert Volney; Justice and all
RESIDENTS of the UNITED STATES and the STATE OF CALIFORNIA are to honor the Sovereigns demands and
respect his title
23). Robert Volney; Justice is the Sovereign and the UNITED STATES and its RESIDENTS had honored and acknowledged
the Sovereigns title and exemption from the FEDERAL ZONE. So shall, the STATE OF CALIFORNIA and its
RESIDENTS, which include the STATE ATTORNEYS who are required to honor the Sovereigns title by law.
XIV.
The name of SUPERIOR COURT OF SAN DIEGO COUNTY is the franchise name the SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO operates and transacts commercial business and the DOCTRINE OF
JUDICIAL IMMUNITY and DOCTRINE OF SOVEREIGN IMMUNITY are ineffective and have no jurisdiction
over the Sovereign or his private property
24). The SUPERIOR COURT OF SAN DIEGO COUNTY is the franchise name the SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO conducts its commercial business. The SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO only has jurisdiction with an individual who is a RESIDENT of the STATE OF CALIFORNIA.
394
The Sovereign is/was not a RESIDENT and SUPERIOR COURT OF SAN DIEGO COUNTY or SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO had no jurisdiction over the Sovereign. The SUPERIOR COURT OF SAN
DIEGO COUNTY/SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO through its agents invaded and
fraudulently conveyed the Sovereigns private property [land] and prohibited the Sovereign from entering any Superior Court
building in the COUNTY OF SAN DIEGO, without having any contract with the Sovereign. The Defendants are liable for
the injuries and damages to the Sovereign. This judicial proceeding is/was not at anytime under equity, maritime or admiralty
jurisdiction, but under the jurisdiction of the Sovereigns American flag, where there is no equity, maritime or admiralty
jurisdiction.
Demand for Relief

The Sovereign demands the COURT enter judgment on the pleadings in favor of the Sovereign pursuant to F.R.C.P. RULE
12(c) against all the Defendants who refuse to answer the Sovereigns First Amended Complaint.
I declare the foregoing to be true under penalty of perjury under the laws of the united States of America under the
Sovereigns American flag described by 4 U.S.C. 1-2 [NO GOLD, FRINGE OR TASSELS], not in any territory or
possession of the UNITED STATES.
End of Document
395
Memorandum of Points and Authorities in Support of Motion to

Dismiss By Defendants Superior Court of California, County of San
Diego, The Honorable Richard G. Cline, The Honorable Lisa
Guy-Schall, and The Honorable Yuri Hofmann, Judges, and The
Honor able Anthony Brandenburg Commissioner of the Superior
Court of California, County of San Diego
Robert VOLNEY; Justice sic], Plaintiff, v. SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division,
et al., Defendants. | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:

Robert VOLNEY; Justice [sic], Plaintiff,
v.
SUPERIOR COURT OF SAN DIEGO COUNTY, North County Division, et al., Defendants.
Case No. 03CV01036J(POR).
June 10, 2003.
Memorandum of Points and Authorities in Support of Motion to Dismiss By Defendants Superior Court of California,
County of San Diego, The Honorable Richard G. Cline, The Honorable Lisa Guy-Schall, and The Honorable Yuri
Hofmann, Judges, and The Honorable Anthony Brandenburg Commissioner of the Superior Court of California,
County of San Diego
Pamela F. Estabrook, General Counsel (Bar No. 120542), Superior Court of California, County of San Diego, By Cheryl L.
Brierton, Litigation Attorney (Bar No. 108242), 220 West Broadway, San Diego, California 92101, Telephone: (619)
531-3563, Facsimile: (619) 685-6606, Attorneys for Defendants, Superior Court of California, County of San Diego
(erroneously sued as Superior Court of San Diego County, North County Division), The Honorable Richard G. Cline, The
Honorable Lisa Guy-Schall, and The Honorable Yuri Hofmann, Judges, and The Honorable Anthony Brandenburg,
Commissioner, of the Superior Court of California, County of San Diego.
The Hon. Napoleon A. Jones, Jr.
Date: July 21, 2003
Time: 10:30p.m.
Ctrm: 12
TOPICAL INDEX
TABLES OF AUTHORITIES .......................................................................................................................................................
ii
I INTRODUCTION ...........................................................................................................................................................................
II BACKGROUND ............................................................................................................................................................................
III ARGUMENT .................................................................................................................................................................................
A. DEFENDANT IS IMMUNE FROM LIABILITY UNDER THE JUDICIAL IMMUNITY DOCTRINE ..
B. THIS COURT LACKS JURISDICTION OVER THE DEFENDANT BASED UPON THE PRINCIPLE
OF SOVEREIGN IMMUNITY (ELEVENTH AMENDMENT) .....................................................................................
C. THIS COURT HAS NO JURISDICTION OVER THIS MATTER BASED UPON THE
ROOKER-FELDMAN DOCTORINE ..........................................................................................................................................
D. THE SUPERIOR COURT IS NOT LIABLE BECAUSE ITS EMPLOYEE IS NOT LIABLE, UNDER
THE DOCTRINE OF JUDICIAL IMMUNITY .....................................................................................................................
E. THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SERVICE OF PROCESS ..............
10
397
CONCLUSION ...................................................................................................................................................................................
11
CASES
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) ...................................................................................
Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ....................................................................
Baugh v. Consumers Associates, Ltd., 241 Cal. App. 2d 672 (1966) ..............................................................
Benny v. Pipes, 799 F.2d 489 (9th Cir. 1986), amended 807 F.2d 1514 (9th Cir. 1987), cert.
denied, 484 U.S. 870 ..........................................................................................................................................................
10
Bradley v. Fisher, 80 U.S. 335 (1871) .......................................................................................................................
Branson v. Nott, 62 F.3d 287 (9th Cir. 1995), cert. denied, 516 U.S. 1009 ....................................................
Broughton v. Cigna Healthplans, 21 Cal. 4th 1066 (1999) ................................................................................
Charchenko v. City of Stillwater, 47 F.3d 981 (8th Cir. 1995) ..........................................................................
Clark v. Cranston, 182 Cal. App. 2d 645 (1960) ...................................................................................................
Cornell v. Joseph, 7 F. Supp. 2d 1106 (S.D. Cal. 1998) ......................................................................................
Dennis v. Sparks, 449 U.S. 24 (1980) ........................................................................................................................
4-5
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ....................................................
Dittman v. California, 191 F.3d 1020 (9th Cir. 1999), cert. denied, 530 U.S. 1261 (2000) ...................
Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ....................................................
Duggin v. Rank, 372 U.S. 609 (1963) ........................................................................................................................
Estate of Auslender, 53 Cal. 2d 615 (1960) ..............................................................................................................
Estate of Charters, 46 Cal. 2d 227 (1956) ................................................................................................................
Estate of Maniscalco, 9 Cal. App. 4th 520 (4th Dist., Div. 1, 1992) ...............................................................
Ex Parte Young, 209 U.S. 123 (1908) ........................................................................................................................
2, 7
Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) ............
5-6
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999) .........
Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d 987 (9th Cir. 2002) .............................................
Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103 (9th Cir. 1987) .................................
398
Hanson v. Goodwin, 432 F.Supp. 853 (D. Wash. 1977) ......................................................................................
Hyland v. Wonder, 117 F.3d 405 (9th Cir. 1997), cert. denied, 522 U.S. 1148 ............................................
Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir. 1982) ..........................................................................................
10
Kentucky v. Graham, 473 U.S. 159 (1985) ...............................................................................................................
McMillian v. Monroe County, 520 U.S. 781 (1997) ..............................................................................................
Meek v. County of Riverside, 183 F.3d 962 (9th Cir. 1999), cert. denied, 528 U.S. 1005 .........................
Mireles v. Waco, 502 U.S. 9 (1991) ............................................................................................................................
Monell v. Dept. of Social Services, 436 U.S. 658 (1978) ....................................................................................
Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996), cert. denied, 519 U.S. 1118 (1997) ...........................
Morrison v. Jones, 607 F.2d 1269 (9th Cir 1999), cert. denied, 445 U.S. 962 (1980) ..............................
Mullis v. United States Bankruptcy Court, 828 F.2d 1385 (9th Cir. 1987), cert. denied, 486 U.S.
1040 (1988) ..........................................................................................................................................................................
10
Olson Farms, Inc. v. Barbosa, 134 F.3d 933 (9th Cir. 1998) .............................................................................
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ...................................................................
6, 7
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) .....................................................................................................
Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ...................
Reverend Mother Pauline v. Bray, 168 Cal. App. 2d 384 (1959) .....................................................................
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ................................................................................................
Sacramento & San Joaquin Drainage Dist. v. Superior Court, 196 Cal. 414 (1925) ...............................
Schucker v. Rockwood, 846 F.2d 1202 (9th Cir. 1988), cert. denied, 488 U.S. 995 ....................................
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) .........................................................................................
Sharma v. Stevas, 790 F.2d 1486 (9th Cir. 1986) ...................................................................................................
Stump v. Sparkman, 435 U.S. 349 (1978) .................................................................................................................
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) ...............................................................................
Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937) ................................................................................
Worldwide Church of God v. McNair, 805 F.2d 888 (9th Cir. 1986) .............................................................
STATUTES-FEDERAL
399
28 United States Code

Section 1331 ........................................................................................................................................................................
Section 1367 ........................................................................................................................................................................

Section 1983 ........................................................................................................................................................................
2, 9
Federal Rules of Civil Procedure

Rule 4 .....................................................................................................................................................................................
10
Rule 4(e) ...............................................................................................................................................................................
10
Rule 4(m) ..............................................................................................................................................................................
11
Rule 12(b)(5) .......................................................................................................................................................................
10
Rule 12(b)(6) .......................................................................................................................................................................
United States Constitution, Eleventh Amendment .................................................................................................
STATUTES-STATE
Section 415.10 ....................................................................................................................................................................
10
Section 415.20 ....................................................................................................................................................................
10
Section 415.30 ....................................................................................................................................................................
10
California Elections Code

Section 327 ..........................................................................................................................................................................

Section 810.2 .......................................................................................................................................................................
Section 815.2(a) .................................................................................................................................................................
Section 77003 .....................................................................................................................................................................
Section 77200, et seq ........................................................................................................................................................
California Constitution, Article I

Section 7(a) ..........................................................................................................................................................................
California Constitution, Article VI
400
Section 4 ...............................................................................................................................................................................
OTHER
California Rules of Court
Rule 810 ................................................................................................................................................................................
Rule 810, Function 10(b) ................................................................................................................................................
I. INTRODUCTION
Plaintiff, Robert Volney Justice, sues the Honorable Richard G. Cline (Judge Cline), Lisa Guy-Shall (Judge Guy-Shall),
and Yuri Hofmann (Judge Hofmann), Judges, and the Honorable Anthony Brandenburg, Commissioner, of the Superior
Court of California, County of San Diego (California Court), and the California Court itself (collectively, California
Judges or Defendants), because of his dissatisfaction with the rulings of the California Judges in an underlying state
probate case, involving Plaintiffs claims against real property in Fallbrook in the estate of his mother, Opal May Justice (San
Diego Superior Court case no. PN26420).
In connection with the state probate case, Plaintiffs petitions for writs of prohibition and of supersedeas have been denied in
the California Court of Appeal, Fourth Appellate District, Division One, but an appeal is pending.1 Plaintiff has also
expressed his dissatisfaction by filing a state complaint for ejectment.2 In addition, he has filed a suit to set aside his eviction.3
1
Request for Judicial Notice, Exhibit A, Docket Entries as of June 4, 2003, in Justice v. Wells Fargo Bank, Case Number D041850
(Cal. Court of Appeal, Fourth Appellate Dist., Div. One); Exhibit B, Docket Entries as of June 4, 2003, in Wells Fargo Bank v.
Justice, Case Number D042049 (Cal. Court of Appeal, Fourth Appellate Dist., Div. One); Exhibit C, April 28, 2003, Petition for
Writ of Supercedeas in Robert Justice; Volney v. Superior Court, San Diego Superior Court Case Number PN26420; Exhibit D,
May 21, 2003 Notice of Filing of Appeal in In reEstate of Opal Mae Justice, San Diego Superior Court Case Number PN26420.
Request for Judicial Notice, Exhibit E, Notice of Case Assignment to Judge Guy-Schall in Justice v. Wells Fargo, San Diego
Superior Court Case Number GIN029525.
Request for Judicial Notice, Exhibit L, Order of Commissioner Brandenburg in Robert Volney Justice v. Rory W. Clark, San Diego
Superior Court Case No. UN011164.
In addition, Plaintiff has filed liens against Judge Clines property,4 and Judge Cline has secured a Temporary Restraining
Order against Plaintiff.5
4
See e.g., Hanson v. Goodwin, 432 F. Supp. 853, 856-858 (D. Wash. 1977).
Request for Judicial Notice, Exhibit F, June 2, 2003 Order to Show Cause and Temporary Restraining Order in Superior Court v.
Volney; Justice, San Diego Superior Court Case Number GIC811774.
Plaintiffs federal complaint has not been properly served on any moving Defendant. Plaintiff has also mailed copies of a
Combined Motion for Temporary Restraining Order and Preliminary Injunction and Request for Waiver of Security to the
401
California Judges.6
6
Request for Judicial Notice, Exhibit G, Combined Motion for Temporary Restraining Order and Preliminary Injunction and
Request for Waiver of Security in Justice v. Superior Court, U.S. District Court, Southern Division, Case Number
03CV01036J(POR).
Defendants move for dismissal for failure of the complaint to state a basis for relief, because Defendants are immune from
liability under the doctrines of judicial and sovereign immunity, the Rooker-Feldman doctrine, and other stated bases.
The right to enjoin an individual, even though a state official, from commencing suits ... does not include the power to
restrain a court from acting in any case brought before it ... an injunction against a state court would be a violation of the
whole scheme of our government. Ex Parte Young, 209 U.S. 123, 163, 28 S.Ct. 441,455 (1908).
II. BACKGROUND
On May 3, 2003, Plaintiff filed his unverified complaint against the California Judges and others, setting forth causes of
action for: (1) Violation of Federal Due Process Clause; (2) Violation of California Due Process Clause, (3) Violation of 42
United States Code section 1983; and (4) Declaratory Relief.7 On May 30, 2003, Plaintiff then filed a First Amended
Complaint, setting forth the same causes of action.8
7
Request for Judicial Notice, Exhibit H, Plaintiffs Complaint in Justice v. Superior Court of San Diego, North County Division,
United States District Court, Southern Division, Case Number 03CV01036J(POR).
Request for Judicial Notice, Exhibit I, Plaintiffs First Amended Complaint in Justice v. Superior Court of San Diego, U.S. District
Court, Southern Division, Case Number 03CV01036J(POR).
In his first cause of action, for which he seeks injunctive relief, Plaintiff makes the following specific allegations against
Defendants:
On April 29, 2003, the Plaintiff was ousted from his private property by the Defendants.... The Defendant Superior Court
further advised the Plaintiff that, in view of a recent budgetary crisis, the Superior Court had issued a directive which was
being enforced by all its officers whereby the Defendant [sic] immediately seize private property without hearings or trial.
Based on that policy directive, the Defendants Superior Court with Rory William Clark ousted the Plaintiff of his private
property (land) and proceeded to seize the Plaintiffs private property (land), ... on April 29, 2003.
Request for Judicial Notice, Exhibit I, paragraph 19, page 4, lines 23-24 and page 5, lines 1-9 [pp:ll].
Prior to the Plaintiff being ousted from his private property (land) the Defendant Superior Court with other named
Defendants, in concert, filed false claims against Plaintiffs private property stating it will be probated. The Plaintiff is alive
and probate should not have never proceeded. The Plaintiff was given no notice of hearing, and no opportunity to contest the
seizure of his private property (land). The alleged writ prepared by the Defendant Superior Court and Rory William Clark,
without any valid order attached is provided herein. The alleged writ documents are true, correct and complete copies of the
original in the court record (State Probate Case No. PN 26420) ....10
10
Request for Judicial Notice, Exhibit I, paragraph 20, 5:9-17; Exhibit J, Order of Judge Cline Directing Conveyance of Property to
Estate dated March 7, 2003, in Estate of Opal Mae Justice, decedent, San Diego Superior Court Case Number PN26420.
402
At the time Defendants [sic] seized his private property (land), the Plaintiff requested an opportunity to prove to the
Defendants that the subject private property belongs executively [sic] to the Plaintiff by his claim instruments, the Plaintiff
was told that the policy of the Superior Court was to seize private property, without hearings or trial, involving probate.11
11
Request for Judicial Notice, Exhibit I, paragraph 21, 5:18-22.
........
In order to have the Plaintiffs private property returned, the Plaintiff has maintained an action in the Defendant Superior
Court for ejectment (i.e. GIN029525), which the Defendant Superior Court refused to hear.... The Defendant Superior Court
refuses to process State Civil Case GIN029525. The Defendant Superior Court, Rory William Clark and Larry Weiner have
seized all papers and effects of the Plaintiff pertaining to that State Civil Case No. GIN029525 that were,[sic] located on the
Plaintiffs private property and have refused to return it to the Plaintiff upon demand.12
12
........
By seizing Plaintiffs private property (land) without first providing notice and an opportunity to be heard, the Defendants
Superior Court, Richard G. Cline, Lisa Guy-Schall, land] Yuri Hofmann ... deprived the Plaintiff of his private property
(land) without due process of the law. in violation of the Fourteenth Amendment to the United States Constitution.13
13
Request for Judicial Notice, Exhibit I, paragraph 25, 6:12-18; Exhibit K, April 28, 2003 Order of Judge Hofmann Denying Ex
Parte Notice of Motion to Set Aside Judgment in In re Estate of Opal Mae Justice, San Diego Superior Court Case Number
PN26420.
Plaintiffs second cause of action makes essentially the same allegations as in the previous paragraph, except that Plaintiff
claims a violation of article I, section 7(a) of the California Constitution.14
14
Request for Judicial Notice, Exhibit I, paragraph 27, 6:22-7:2.
Plaintiffs third cause of action seeks declaratory relief (as set forth in his fourth cause of action) on the basis that:
When Defendants seized the Plaintiffs private property [land], they acted under color of state law and
deprived the Plaintiff of his due process rights as secured by the Fourteenth Amendment to the United
State [sic] Constitution.15
15
III. ARGUMENT
A. DEFENDANT IS IMMUNE FROM LIABILITY UNDER THE JUDICIAL IMMUNITY DOCTRINE.
403
A motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) may be granted where there is either a lack of
cognizable legal theory upon which to grant relief or the absence of sufficient facts alleged under a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Plaintiffs allegations against moving Defendants arise from his dissatisfaction with the rulings of the California Judges in a
state probate and related state ejectment case. The Complaint, therefore, fails to state a claim upon which relief may be
granted against Defendants, because they are immune from liability under the judicial immunity doctrine.
In the present matter, Defendants are being sued because of their exercise of a judicial function. The judges of the Superior
Court, and hence the Superior Court itself, are not liable to civil actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349,
355-356 (1978), quoting Bradley v. Fisher, 80 U.S. 335,347 (1871). So long as the challenged judicial act is within the
jurisdiction of the court, there is absolute judicial immunity from liability for the act even where there are allegations of
conspiracy. Dennis v. Sparks, 449 U.S. 24, 27 (1980). The law of judicial immunity is well established. This law provides
that judges are absolutely immune from damage actions for judicial acts taken within jurisdiction of their courts. Schucker
v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988), cert. denied, 488 U.S. 995. Furthermore, this is an immunity from suit,
not just from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity applies however
erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. Moore v.
Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996), cert. denied, 519 U.S. 1118 (1997); Reverend Mother Pauline v. Bray, 168
Cal. App. 2d 384, 385-386 (1959) (Court of Appeal justices immune from suit filed after they dismissed probate appeal
allegedly for the purpose of retaliating against the plaintiffs lawyer).
In the present matter, Plaintiff challenges the California Judges orders in state probate and ejectment cases.16 These cases are
properly within their jurisdiction. See, e.g., Estate of Auslender, 53 Cal. 2d 615, 626 (1960) ( The probate court, while
sitting in matters of probate, is a court of general jurisdiction, and in determining any questions arising in the administration
of an estate which it is authorized to decide may bring to its aid the full equitable and legal powers with which as a superior
court it is invested); accord, Estate of Charters, 46 Cal. 2d 227, 236 (1956); Estate of Maniscalco, 9 Cal. App. 4th 520, 522,
fn. 2 (4th Dist., Div. 1, 1992) (probate court jurisdiction to vacate order confirming sale of estate real property). Such judicial
conduct cannot form the basis of any civil claim because it is protected by the absolute judicial immunity doctrine. Plaintiffs
complaint thus fails to state a claim against the California Judges.
16
The elements of a cause of action in ejectment are ownership disclosing a right to possession, the defendants possession, and a
withholding thereof from plaintiff. Baugh v. Consumers Associates, Ltd., 241 Cal. App. 2d 672, 675 (1966).
B. THIS COURT LACKS JURISDICTION OVER THE DEFENDANT BASED UPON THE PRINCIPLE OF
SOVEREIGN IMMUNITY (ELEVENTH AMENDMENT).
Plaintiffs action is barred by sovereign immunity. The Eleventh Amendment of the United States Constitution prohibits suits
against a state and its agencies and departments for legal or equitable relief. Federal Maritime Commission v. South Carolina
State Ports Authority, 535 U.S. 743, 753 (2002); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Florida Prepaid
Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 670 (1999) (Congress abrogation of the states
sovereign immunity under the Federal Constitutions Eleventh Amendment from patent infringement suits in federal court is
invalid, since, inter alia, negligent conduct does not violate the due process clause). This jurisdictional bar applies
regardless of the nature of relief sought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). California
has not waived its sovereign immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985); Dittman v. California,
191 F.3d 1020, 1025-1026 (9th Cir. 1999), cert. denied, 530 U.S. 1261 (2000).
The Superior Court is part of the judicial branch of state government created by the state constitution. The superior courts of
the State of California, while located and functioning in the several counties of the state, are not local or county courts, but
constitute a system of state courts, being vested with and exercising the judicial power of the state under the express terms of
section 1 of article VI of the state constitution. Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th
Cir. 1987); Sacramento & San Joaquin Drainage Dist. v. Superior Court, 196 Cal. 414, 432 (1925).
404
State immunity extends to state officers who act on behalf of the state and can therefore assert the states sovereign
immunity. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71 (1989) (While state officials literally are persons, a suit against a state official in his or
her official capacity is not a suit against the official but rather is a suit against the officials office; as such, it is no different
from a suit against the State itself); Kentucky v. Graham, 473 U.S. 159, 165 (1985) (Official-capacity suits generally
represent only another way of pleading an action against an entity of which an officer is an agent).
A judge of the Superior Court is a state officer. Cal. Const., art. VI, 4; Broughton v. Cigna Healthplans, 21 Cal. 4th 1066,
1081-1082 (1999); Clark v. Cranston, 182 Cal. App. 2d 645 (1960); Meek v. County of Riverside, 183 F.3d 962,965 (9th Cir.
1999), cert. denied, 528 U.S. 1005 (holding that municipal court judges are State officials).
A suit purportedly against an individual official is actually one against the state if the judgment sought would interfere with
the public administration or effectively restrain the state from acting. Duggin v. Rank, 372 U.S. 609, 620 (1963); Worcester
County Trust Co. v. Riley, 302 U.S. 292, 299-300 (1937). Here, any injunction or declaratory relief ordering the California
Judges not to proceed would operate against the State of California itself, because any state court can act only through
individual adjudicatory officers. Thus, restraining the California Judges would effectively restrain the State of California
from fulfilling its judicial function, an impermissible result under Ex Parte Young.
Moreover, as to the third cause of action, the Eleventh Amendment precludes federal supplemental jurisdiction over state law
claims against state officers sued in their official capacities. Pennhurst v. State Sch. Hosp. v. Halderman, 465 U.S. 89, 99-100
(1984); Cornell v. Joseph, 7 F. Supp. 2d 1106, 1108 (S.D. Cal. 1998); 28 U.S.C. 1331, 1367.17
17
Nor does the federal court have jurisdiction over state probate or ejectment cases.
Under 42 U.S.C. 1983, a key factor in determining whether an actor is a state or county employee is which entity is liable
for damages in a suit against the official. See McMillian v. Monroe County, 520 U.S. 781, 789 (1997); accord, Hyland v.
Wonder, 117 F.3d 405, 413 (9th Cir. 1997), cert. denied, 522 U.S. 1148 (1998)(quoting Regents of Univ. of Cal. v. Doe, 519
U.S. 425, 427 (1997) (a crucial factor in determining whether an individual is exercising state or local authority is who is
legally obligated to pay the judgment that is being sought).
Effective July 1, 1997, the State of California assumed sole responsibility for the funding of all court operations, as defined in
California Government Code section 77003 and rule 810 of the California Rules of Court. See Cal. Gov. Code, 77003,
77200, et seq.; Cal. Rules of Court, rule 810, function 10(b) (Allowable costs include executive officer, court administrator,
and clerk of the court, legal services for allowable court operations).
Hence, moving Defendants should be dismissed with prejudice under the doctrine of sovereign immunity.
C. THIS COURT HAS NO JURISDICTION OVER THIS MATTER BASED UPON THE ROOKER-FELDMAN
DOCTORINE.
Plaintiff has filed this action because he is unhappy with the judicial proceedings which took place in his state court actions.
However, this Court simply does not have the authority to review the previous state court proceedings. Indeed, Plaintiffs
appeal in the state probate matter is pending in the Court of Appeal.
Under the Rooker-Feldman doctrine, a federal court lacks authority to review a state court decision, including general
constitutional challenges that are inextricably intertwined with claims asserted in state court. District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,416 (1923); Branson v. Nott, 62
F.3d 287, 291 (9th Cir. 1995), cert. denied, 516 U.S. 1009.
A claim is inextricably intertwined with a state court judgment if the federal claim succeeds only to the extent that the state
405
court wrongly decided the issues before it, Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d 987,992 (9th Cir. 2002),
citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring), or if the relief requested in the federal
action would effectively reverse the state court decision or void its ruling. Charchenko v. City of Stillwater, 47 F.3d 981,
983 (8th Cir. 1995). The only court with jurisdiction to review challenges to the constitutionality of such judgments is the
United States Supreme Court. Feldman, 460 U.S. at 482.
On their face, Plaintiffs claims to real property in an estate are inextricably intertwined with the state court probate and
ejectment proceedings, and are properly dismissed. See Feldman, 460 U.S. 462, 483, n.16; Doe & Assocs. Law Offices v.
Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001); Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir. 1998);
Worldwide Church of God v. McNair, 805 F.2d 888, 891-92 (9th Cir. 1986).
Furthermore, there is no evidence that Plaintiff has not had a reasonable and meaningful opportunity to raise his issues in the
state court proceedings. To the contrary, his appeal is pending in the state probate case.
Certainly, any decision in this case favorable to Plaintiff would effectively reverse the California Judges determinations.
Quite simply, Plaintiff cannot seek redress in this Federal Court because he is unhappy with the judicial process in a
California superior court. Accordingly, the instant action should be dismissed.
D. THE SUPERIOR COURT IS NOT LIABLE BECAUSE ITS EMPLOYEE IS NOT LIABLE, UNDER THE
DOCTRINE OF JUDICIAL IMMUNITY.
The only allegations against the California Court sound in vicarious liability, which is expressly prohibited under 42 U.S.C.
1983. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978).
Moreover, there is no vicarious liability here. Under California law, a public entity is liable for injury caused by an act of its
employee, if the employee is liable therefore. See Cal. Gov. Code, 815.2, subd. (a) (stating that a public entity is liable for
injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the
act or omission would ... have given rise to a cause of action against that employee or his personal representative). Here, the
California Court is not liable, because, to the extent Plaintiffs complaint encompasses any employee of the California Court,
its employee18 is not liable under the doctrine of judicial immunity.
18
For purposes of the California Tort Claims Act, employee includes an officer, judicial officer as defined in Section 327 of the
Elections Code, employee, or servant, whether or not compensated, but does not include an independent contractor. Cal. Gov.
Code, 810.2. Section 327 of the California Elections Code defines judicial officer to mean, any Justice of the Supreme Court,
justice of a court of appeal, judge of the superior court, or judge of a municipal court.
Immunity which derives from judicial immunity may also extend to persons other than a judge where performance of judicial
acts or activity as an official aide of the judge is involved. Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir 1999) (Superior
Court clerks failure to perform ministerial duty was part of judicial process clothed with quasi-judicial immunity), cert.
denied, 445 U.S. 962 (1980); Sharma v. Stevas, 790 F.2d 1486 (9th Cir. 1986) (clerk of United States Supreme Court had
absolute quasi-judicial immunity because his acts were an integral part of the judicial process). A mistake does not abrogate
judicial immunity, even if it results in grave procedural error. Mullis v. United States Bankruptcy Court, 828 F.2d 1385,
1390 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988).
E. THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SERVICE OF PROCESS.
An action may be dismissed for insufficient service of process. Fed. R. Civ. P. 12(b)(5). To effect service on a defendant,
Fed. R. Civ. P. 4(e) requires:
... (e) Service Upon Individuals Within a Judicial District of the United States. Unless otherwise provided by federal law,
service upon an individual from whom a waiver has not been obtained and filed, other than an infant or incompetent person,
may be effected in any judicial district of the United States:
406
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a
summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the
individuals dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or
by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service
of process.
Under the California Code of Civil Procedure, defendants may be served by personal delivery to the defendant or an
authorized agent; by substitute service; by mail and acknowledgement of receipt; or by publication. Cal. Code Civ. Proc.,
415.10, 415.20, 415.30. Here, service was not effected by any of these means.19
19
See Declaration of Cheryl L. Brierton, filed herewith, paragraphs 14-19.
A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed. R. Civ.
P. 4. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). Without substantial compliance with rule 4, neither
actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction. Benny v. Pipes, 799 F.2d
489, 492 (9th Cir. 1986), amended 807 F.2d 1514 (9th Cir. 1987), cert. denied, 484 U.S. 870.
Defendants motion to dismiss should be granted because Plaintiff failed to effect proper service of the summons and
complaint on Defendants. See Fed. R. Civ. P. 4(m) (Time Limit for Service. If service of the summons and complaint is not
made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an
appropriate period...).
However, while the rule speaks of 120 days, there is no reason to delay the dismissal in this case, since Plaintiffs action fails
to state a claim.
IV. CONCLUSION
Based on the foregoing, Defendants respectfully requests that this Court issue an order dismissing with prejudice Plaintiffs
Complaint against moving Defendants.
End of Document
407
First Amended Complaint for Damages, Injuctive Relief and

Declaratory Relief
Robert VOLNEY; Justice, a man, Plaintiff, v. Superior Court of San Diego County, North Division; Richard G. Cline,
a man, Lisa Guy-Schall, a woman; Yuri Hofmann, a man; Rory William Clark, a man; Wells Fargo Bank, National
Association; GMCA Mortgage Corporation, A Pennysylvania Corporation; Indymac Bank, Federal Savings Bank;
Executive Trustee Services; A Pennyslvania Corporation; Flans and Weiner, Inc., A California Corporation; Larry
Weiner, a man; and | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Robert VOLNEY; Justice, a man, Plaintiff, v. Superior..., 2003 WL 23838814...

Robert VOLNEY; Justice, a man, Plaintiff,
v.
Superior Court of San Diego County, North Division; Richard G. Cline, a man, Lisa Guy-Schall, a woman; Yuri
Hofmann, a man; Rory William Clark, a man; Wells Fargo Bank, National Association; GMCA Mortgage
Corporation, A Pennysylvania Corporation; Indymac Bank, Federal Savings Bank; Executive Trustee Services; A
Pennyslvania Corporation; Flans and Weiner, Inc., A California Corporation; Larry Weiner, a man; and Charles
Flans Sanford, a man; and DOES 1 through 10, inclusive, all in their official, individual and private capacities,
Defendants.
Case No.: 03 CV01036J POR.
May 30, 2003.
Demand for Jury Trial
First Amended Complaint for Damages, Injuctive Relief and Declaratory Relief
Robert Volney; Justice, the Plaintiff, c/o general delivery, Fallbrook Post Office, Fallbrook, California state, non-domestic
mail.

This First Amended Complaint for Damages, Injunctive Relief and Declaratory Relief is brought pursuant to the United
States Constitution and 42 U.S.C. Section 1983. Jurisdiction is based upon 28 USC sections 1331, 1332, 1343, 1391, 1404
and 2201.
PARTIES
The Plaintiff alleges:
1. At all relevant times, the Plaintiff, has been, and is now, a transient of the CITY OF SAN DIEGO, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA.
2. The Defendant SUPERIOR COURT OF SAN DIEGO, NORTH COUNTY DIVISION (the Superior Court) is an agency
of the STATE OF CALIFORNIA, duly authorized and empowered to establish, operate, administer and maintain a system of
judicial proceedings that provides persons, such as the Plaintiff, to settle disputes in a specific territory.
3. At all times mentioned the Defendant Richard G. Cline, an officer of the Defendant Superior Court is, and at all times
herein mentioned was, a resident of the COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
4. At all times mentioned the Defendant Yuri Hofmann, an officer of the Defendant Superior Court is, and at all times herein
mentioned was, a resident of the COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
5. At all times mentioned the Defendant Lisa Guy-Schall, an officer of the Defendant Superior Court is, and at all times
409
6. The Defendant Rory William Clark, an attorney duly licensed in the STATE OF CALIFORNIA and officer of the
Defendant Superior Court who took the actions against the Plaintiff described below and is, and at all times herein mentioned
was, a resident of the COUNTY OF VENTURA, STATE OF CALIFORNIA and COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA.
7. The defendant WELLS FARGO BANK, NATIONAL ASSOCIATION is, and at all times herein mentioned was, a
corporation organized and existing under the laws of the UNITED STATES OF AMERICA, and authorized to do business,
and doing business in the STATE OF CALIFORNIA, with its principal place of business in this State in the CITY OF SAN
FRANCISCO, STATE OF CALIFORNIA.
8. The defendant GMAC MORTGAGE CORPORATION is, and at all times herein mentioned was, a corporation organized
and existing under the laws of the COMMONWEALTH OF PENNSYLVANIA, and authorized to do business, and has
qualified to transact intrastate business in the STATE OF CALIFORNIA and has obtained a certificate of qualifications from
the SECRETARY OF STATE of the STATE OF CALIFORNIA.
9. The defendant EXECUTIVE TRUSTEE SERVICES, INC. is, and at all times herein mentioned was, a corporation
organized and existing under the laws of the COMMONWEALTH OF PENNSYLVANIA, and authorized to do business,
and has qualified to transact intrastate business in the STATE OF CALIFORNIA and has obtained a certificate of
qualifications from the SECRETARY OF STATE of the STATE OF CALIFORNIA.
10. The defendant INDYMAC BANK, FEDERAL SAVINGS BANK is, and at all times herein mentioned was, a corporation
organized and existing under the laws of the UNITED STATES OF AMERICA, and authorized to do business, and doing
business in the STATE OF CALIFORNIA, with its principal place of business in this State in the CITY OF PASADENA,
COUNTY OF LOS ANGELES.
11. The defendant FLANS AND WEINER, INC. is, and at all times herein mentioned was, a corporation organized and
existing under the laws of the STATE OF CALIFORNIA with its principal place of business in CITY OF ENCINO,
COUNTY OF LOS ANGELES. The defendant FLANS AND WEINER, INC., provides auctioning services for the other
Defendants, and is the entity that is auctioning off the Plaintiffs private property [land], without an order or judgment of a
court.
12. At all times mentioned the Defendant Larry Weiner is, and at all times herein mentioned was, a resident of the COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA.
13. At all times mentioned the Defendant Charles Flans Weiner is, and at all times herein mentioned was, a resident of the
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA.
14. The Plaintiff is not presently aware of the true names, identities, or capacities of the Defendants DOES 1 through 50,
inclusive. The Plaintiff therefore sues those Defendants under their fictitious names. The Plaintiff will amend this complaint
on learning their true names, identities, or capacities of these Defendants.
15. At all relevant times, each of the Defendants has been, and is now, the agent or employee of the remaining Defendants,
and each was acting within the course and scope of such agency or employment.
16. The actions of the Defendants, as described in this complaint, occurred with the COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, and constitute state action as that term has been interpreted by relevant case law.

(Violation of Federal Due Process Clause)
17. The allegations set forth above in paragraphs 1 through 16 inclusive, are incorporated into this cause of action by
410
reference as if set forth in full.

18. At all relevant times, the Plaintiff has been the lawful owner of the subject private property located at 1225 Senwood
Way, Fallbrook, California state.
19. On April 29, 2003, the Plaintiff was ousted from his private property by the Defendants. The Plaintiff informed the
Defendants that he holds a paramount title to his land and that the Defendants had no authority to oust the Plaintiff off his
private property. The Defendant Rory William Clark then advised the Plaintiff that all his personal belongings would be sold
with the subject private property on June 7, 2003. The Plaintiff was not allowed to retrieve any of his personal belongings.
The Defendant Superior Court further advised the Plaintiff that, in view of a recent budgetary crisis, the Superior Court had
issued a directive which was being enforced by all its officers whereby the Defendant immediately seize private properties
without hearings or trial. Based on that policy directive, the Defendants Superior Court with Rory William Clark ousted the
Plaintiff of his private property [land] and proceeded to seize the Plaintiffs private property [land], the Defendant Larry
Weiner, auctioneer, posted a sign and distributed flyers advertising the sale of the Plaintiffs private property [land] on April
29, 2003.
20. Prior to the Plaintiff being ousted from his private property [land] the Defendant Superior Court with other named
Defendants, in concert, filed false claims against the Plaintiffs private property stating it will be probated. The Plaintiff is
alive and probate should not have never proceeded. The Plaintiff was given no notice of hearing, and no opportunity to
contest the seizure of his private property [land]. The alleged writ prepared by the Defendant Superior Court and Rory
William Clark, without any valid order attached is provided herein. The alleged writ documents are true, correct and
complete copies of the original in the court record [State Probate Case No. PN 26420] of which is attached hereto as Exhibit
1 and made a part thereof.
21. At the time the Defendants seized his private property [land], the Plaintiff requested an opportunity to prove to the
Defendants that the subject private property belongs executively to the Plaintiff by his claim instruments, the Plaintiff was
told that the policy of the Superior Court was to seize private property, without hearings or trial, involving probate.
22. At the time the Plaintiffs private property was seized by the Defendants, the Plaintiff was and is the holder in due course
of the claim instruments to paramount title of his private property. The claim instruments are true, correct and complete
certified copies of the original of which is attached hereto as Exhibits 2 and 3 and made a part thereof.
23. In order to have the Plaintiffs private property returned, the Plaintiff has maintained an action in the Defendant Superior
Court for ejectment [i.e. GIN029525], which the Defendant Superior Court refused to hear. The Complaint for Ejectment
filed in the Defendant Superior Court is true, correct and complete copies of the original in the court record of which is
attached hereto as Exhibit 4 [Exhibits 2 and 3 were also of the original] and made a part thereof. The Defendant Superior
Court refuses to State Civil Case No. GIN029525. The Defendant Superior Court, Rory William Clark and Larry Weiner
have seized all papers and effects of the Plaintiff pertaining to that State Civil Case No. GIN029525 that were, located on the
Plaintiffs private property and have refused to return it to the Plaintiff upon demand.
24. The Plaintiff has no plain, speedy, or adequate remedy at law, and for that reason, seeks injunctive relief.
25. By seizing Plaintiffs private property [land] without first providing notice and an opportunity to be heard, the Defendants
Superior Court, Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, Rory William Clark, WELLS FARGO BANK, N.A.,
GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC., INDYMAC BANK, INC. and
FLANS AND WEINER, INC., Larry Weiner and Charles Flans Sanford deprived the Plaintiff of his private property [land]
without due process of the law, in violation of the Fourteenth Amendment to the United States Constitution.
WHEREFORE, the Plaintiff prays for relief as set forth below.
411
(Violation of California Due Process Clause)

27. By seizing the Plaintiffs private property [land] without first providing notice and an opportunity to be heard on the
question of an alleged probate, the Defendants Superior Court, Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, Rory
William Clark, WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE
SERVICES, INC., INDYMAC BANK, INC. and FLANS AND WEINER, INC., Larry Weiner and Charles Flans Sanford
deprived the Plaintiff of his private property [land] without due process of law in violation of Article 1 section 7(a) of the
California Constitution.

(Violation of 42 USC section 1983)
29. When the Defendants seized the Plaintiffs private property [land], they acted under color of state law and deprived the
Plaintiff of his due process rights as secured by the Fourteenth Amendment to the United State Constitution.
30. As a direct and proximate result of the Defendants actions, the Plaintiff suffered serious injury, including but not limited
to extreme embarrassment, humiliation, anxiety, ridicule, physical upset, and emotional distress, as well as the deprivation of
the use of the Plaintiffs private property [land]. The full extent of the Plaintiffs injuries is not known at this time, but the
Plaintiff is informed and believes that the amount of these damages exceeds jurisdiction minimum established for this court.
The Plaintiff will amend this complaint to set forth the full nature and extent of his damages once they has been ascertained
with particularity.

(Declaratory Relief)
32. An actual controversy now exists between the Plaintiff and the Defendants as to whether the Defendants seizure policies,
which provide for seizure of private property [land] without prior notice having been given to their owners and without the
owners having a right to contest the seizure in a hearing of any sort, violate Due Process of the law as guaranteed by the
United States and California Constitutions.
33. Unless the Court issues an appropriate declaration of rights, the parties will not know whether the Defendants seizure
policy complies with due process clauses of the United States and California Constitutions, and there will continue to be
disputes and controversy surrounding the Defendants policy. In addition, thousands of property owners in California may
potentially be illegally deprived of their property for an extended period of time based on false claims, with no opportunity
for a reasonably prompt hearing at which they can prove that the seizure is improper.
412
1. Immediate issuance of a temporary restraining order, followed by a preliminary injunction, and ultimately by a permanent
injunction requiring the Defendants to:
a. Return the subject private property [land] to the Plaintiff.
b. Return all the personal property of the subject private property [land].
c. Preventing the Defendants from enforcing their present seizure policy, hearing procedures and auctioning private
properties such as comport with the requirements of the due process clauses of the United States and California Constitutions.
2. A declaration of rights stating that the Defendants seizure policies as described in this complaint violate the due process
clauses of the United States and California Constitutions.
3. An award of damages under the due process clauses and 42 USC section 1983 fully compensating the Plaintiff for the
damages suffered as a direct and proximate result of the Defendants unjustified summary seizure of the Plaintiffs private
property [land].
4. Such other and further relief as the court finds proper.
End of Document
413
Complaint for Damages, Injunctive Relief and Declaratory Relief

Robert VOLNEY; Justice, a man, Plaintiff, v. Superior Court of San Diego County, North County Division; Richard
G. Cline, a man, Lisa Guy-Schall, a woman; Yuri Hofmann, a man; Rory William Clark, a man; Wells Fargo Bank,
National Association; GMAC Mortgage Corporation, A Pennyslvania Corporation; Indymac Bank, Federal Savings
Bank; Executive Trustee Services; A Pennyslvania Corporation; Flans and Weiner, Inc., A California Corporation;
Larry Weiner, a man; and | United States District Court, S.D. California.
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Comment:

Robert VOLNEY; Justice, a man, Plaintiff,
v.
Superior Court of San Diego County, North County Division; Richard G. Cline, a man, Lisa Guy-Schall, a
woman; Yuri Hofmann, a man; Rory William Clark, a man; Wells Fargo Bank, National Association; GMAC
Mortgage Corporation, A Pennyslvania Corporation; Indymac Bank, Federal Savings Bank; Executive Trustee
Services; A Pennyslvania Corporation; Flans and Weiner, Inc., A California Corporation; Larry Weiner, a man;
and Charles Flans Sanford and DOES 1 through 50, inclusive, all in their official and individual capacities
Defendants.
Case No.: 03 CV 01036 (POR).
May 22, 2003.
Complaint for Damages, Injunctive Relief and Declaratory Relief
Robert Volney; Justice, the Plaintiff, c/o general delivery, Fallbrook Post Office, Fallbrook, California state, non-domestic
mail.

This Complaint for Damages, Injunctive Relief and Declaratory Relief is brought pursuant to the United States Constitution
and 42 U.S.C. Section 1983. Jurisdiction is based upon 28 USC sections 1331, 1332, 1343, 1391, 1404 and 2201.
PARTIES
The Plaintiff alleges:
1. At all relevant times, the Plaintiff, has been, and is now, a transient of the CITY OF SAN DIEGO, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA.
2. The Defendant SUPERIOR COURT OF SAN DIEGO, NORTH COUNTY DIVISION (the Superior Court) is an agency
of the STATE OF CALIFORNIA, duly authorized and empowered to establish, operate, administer and maintain a system of
judicial proceedings that provides persons, such as the Plaintiff, to settle disputes in a specific territory.
3. At all times mentioned the Defendant Richard G. Cline, an officer of the Defendant Superior Court is, and at all times
4. At all times mentioned the Defendant Yuri Hofmann, an officer of the Defendant Superior Court is, and at all times herein
mentioned was, a resident of the COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
5. At all times mentioned the Defendant Lisa Guy-Schall, an officer of the Defendant Superior Court is, and at all times
6. The Defendant Rory William Clark, an attorney duly licensed in the STATE OF CALIFORNIA and officer of the
Defendant Superior Court who took the actions against the Plaintiff described below and is, and at all times herein mentioned
was, a resident of the COUNTY OF VENTURA, STATE OF CALIFORNIA and COUNTY OF SAN DIEGO, STATE OF
415
CALIFORNIA.
7. The defendant WELLS FARGO BANK, NATIONAL ASSOCIATION is, and at all times herein mentioned was, a
corporation organized and existing under the laws of the UNITED STATES OF AMERICA, and authorized to do business,
and doing business in the STATE OF CALIFORNIA, with its principal place of business in this State in the CITY OF SAN
FRANCISCO, STATE OF CALIFORNIA.
8. The defendant GMAC MORTGAGE CORPORATION is, and at all times herein mentioned was, a corporation organized
and existing under the laws of the COMMONWEALTH OF PENNSYLVANIA, and authorized to do business, and has
qualified to transact intrastate business in the STATE OF CALIFORNIA and has obtained a certificate of qualifications from
the SECRETARY OF STATE of the STATE OF CALIFORNIA.
9. The defendant EXECUTIVE TRUSTEE SERVICES, INC. is, and at all times herein mentioned was, a corporation
organized and existing under the laws of the COMMONWEALTH OF PENNSYLVANIA, and authorized to do business,
and has qualified to transact intrastate business in the STATE OF CALIFORNIA and has obtained a certificate of
qualifications from the SECRETARY OF STATE of the STATE OF CALIFORNIA.
10. The defendant INDYMAC BANK, FEDERAL SAVINGS BANK is, and at all times herein mentioned was, a corporation
organized and existing under the laws of the UNITED STATES OF AMERICA, and authorized to do business, and doing
business in the STATE OF CALIFORNIA, with its principal place of business in this State in the CITY OF PASADENA,
COUNTY OF LOS ANGELES.
11. The defendant FLANS AND WEINER, INC. is, and at all times herein mentioned was, a corporation organized and
existing under the laws of the STATE OF CALIFORNIA with its principal place of business in CITY OF ENCINO,
COUNTY OF LOS ANGELES. The defendant FLANS AND WEINER, INC., provides auctioning services for the other
Defendants, and is the entity that is auctioning off the Plaintiffs private property [land], without an order or judgment of a
court.
12. At all times mentioned the Defendant Larry Weiner is, and at all times herein mentioned was, a resident of the COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA.
13. At all times mentioned the Defendant Charles Flans Weiner is, and at all times herein mentioned was, a resident of the
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA.
14. The Plaintiff is not presently aware of the true names, identities, or capacities of the Defendants DOES 1 through 50,
inclusive. The Plaintiff therefore sues those Defendants under their fictitious names. The Plaintiff will amend this complaint
on learning their true names, identities, or capacities of these Defendants.
15. At all relevant times, each of the Defendants has been, and is now, the agent or employee of the remaining Defendants,
and each was acting within the course and scope of such agency or employment.
16. The actions of the Defendants, as described in this complaint, occurred with the COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, and constitute state action as that term has been interpreted by relevant case law.

(Violation of Federal Due Process Clause)
18. At all relevant times, the Plaintiff has been the lawful owner of the subject private property located at 1225 Senwood
416
Way, Fallbrook, California state.

19. On April 29, 2003, the Plaintiff was ousted from his private property by the Defendants. The Plaintiff informed the
Defendants that he holds a paramount title to his land and that the Defendants had no authority to oust the Plaintiff off his
private property. The Defendant Rory William Clark then advised the Plaintiff that all his personal belongings would be sold
with the subject private property on June 7, 2003. The Plaintiff was not allowed to retrieve any of his personal belongings.
The Defendant Superior Court further advised the Plaintiff that, in view of a recent budgetary crisis, the Superior Court had
issued a directive which was being enforced by all its officers whereby the Defendant immediately seize private properties
without hearings or trial. Based on that policy directive, the Defendants Superior Court with Rory William Clark ousted the
Plaintiff of his private property [land] and proceeded to seize the Plaintiffs private property [land], the Defendant Larry
Weiner, auctioneer, posted a sign and distributed flyers advertising the sale of the Plaintiffs private property [land] on April
29, 2003.
20. Prior to the Plaintiff being ousted from his private property [land] the Defendant Superior Court with other named
Defendants, in concert, filed false claims against the Plaintiffs private property stating it will probated. The Plaintiff is alive
and probate should not have proceeded. The Plaintiff was given no notice of hearing, and no opportunity to contest the
seizure of his private property [land]. The alleged writ prepared by the Defendant Superior Court and Rory William Clark,
without any valid order attached is provided herein. The alleged writ documents are true, correct and complete copies of the
original in the court record [State Probate Case No. PN 26420] of which is attached hereto as Exhibit 1 and made a part
thereof.
21. At the time the Defendants seized his private property [land], the Plaintiff requested an opportunity to prove to the
Defendants that the subject private property belongs executively to the Plaintiff by his claim instruments, the Plaintiff was
told that the policy of the Superior Court was to seize private property, without hearings or trial, involving probate.
22. At the time the Plaintiffs private property was seized by the Defendants, the Plaintiff was and is the holder in due course
of the claim instruments to paramount title of his private property. The claim instruments are true, correct and complete
certified copies of the original of which is attached hereto as Exhibits 2 and 3 and made a part thereof.
23. In order to have the Plaintiffs private property returned, the Plaintiff has maintained an action in the Defendant Superior
Court for ejectment [i.e. GIN029525], which the Defendant Superior Court refused to hear. The Complaint for Ejectment
filed in the Defendant Superior Court is true, correct and complete copies of the original in the court record of which is
attached hereto as Exhibit 4 [Exhibits 2 and 3 were also part of the original] and made a part thereof. The Defendant
Superior Court refuses to process State Civil Case No. GIN029525. The Defendant Superior Court, Rory William Clark and
Larry Weiner have seized all papers and effects of the Plaintiff pertaining to that State Civil Case No. GIN029525 that were,
located on the Plaintiffs private property and have refused to return it to the Plaintiff upon demand.
24. The Plaintiff has no plain, speedy, or adequate remedy at law, and for that reason, seeks injunctive relief.
25. By seizing Plaintiffs private property [land] without first providing notice and an opportunity to be heard, the Defendants
Superior Court, Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, Rory William Clark, WELLS FARGO BANK, N.A.,
GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE SERVICES, INC., INDYMAC BANK, INC. and
FLANS AND WEINER, INC., Larry Weiner and Charles Flans Sanford deprived the Plaintiff of his private property [land]
without due process of the law, in violation of the Fourteenth Amendment to the United States Constitution.

(Violation of California Due Process Clause)
417

27. By seizing the Plaintiffs private property [land] without first providing notice and an opportunity to be heard on the
question of an alleged probate, the Defendants Superior Court, Richard G. Cline, Lisa Guy-Schall, Yuri Hofmann, Rory
William Clark, WELLS FARGO BANK, N.A., GMAC MORTGAGE CORPORATION, EXECUTIVE TRUSTEE
SERVICES, INC., INDYMAC BANK, INC. and FLANS AND WEINER, INC., Larry Weiner and Charles Flans Sanford
deprived the Plaintiff of his private property [land] without due process of law in violation of Article I section 7(a) of the
California Constitution.

(Violation of 42 USC section 1983)
29. When the Defendants seized the Plaintiffs private property [land], they acted under color of state law and deprived the
Plaintiff of his due process rights as secured by the Fourteenth Amendment to the United State Constitution.
30. As a direct and proximate result of the Defendants actions, the Plaintiff suffered serious injury, including but not limited
to extreme embarrassment, humiliation, anxiety, ridicule, physical upset, and emotional distress, as well as the deprivation of
the use of the Plaintiffs private property [land]. The full extent of the Plaintiffs injuries is not known at this time, but the
Plaintiff is informed and believes that the amount of these damages exceeds jurisdiction minimum established for this court.
The Plaintiff will amend this complaint to set forth the full nature and extent of his damages once they has been ascertained
with particularity.

(Declaratory Relief)
32. An actual controversy now exists between the Plaintiff and the Defendants as to whether the Defendants seizure policies,
which provide for seizure of private property [land] without prior notice having been given to their owners and without the
owners having a right to contest the seizure in a hearing of any sort, violate Due Process of the law as guaranteed by the
United States and California Constitutions.
33. Unless the Court issues an appropriate declaration of rights, the parties will not know whether the Defendants seizure
policy complies with due process clauses of the United States and California Constitutions, and there will continue to be
disputes and controversy surrounding the Defendants policy. In addition, thousands of property owners in California may
potentially be illegally deprived of their property for an extended period of time based on false claims, with no opportunity
for a reasonably prompt hearing at which they can prove that the seizure is improper.
1. Immediate issuance of a temporary restraining order, followed by a preliminary injunction, and ultimately by a permanent
injunction requiring the Defendants to:
418
a. Return the subject private property [land] to the Plaintiff.

b. Return all the personal property of the subject private property [land].
c. Preventing the Defendants from enforcing their present seizure policy, hearing procedures and auctioning private
properties such as comport with the requirements of the due process clauses of the United States and California Constitutions.
2. A declaration of rights stating that the Defendants seizure policies as described in this complaint violate the due process
clauses of the United States and California Constitutions.
3. An award of damages under the due process clauses and 42 USC section 1983 fully compensating the Plaintiff for the
damages suffered as a direct and proximate result of the Defendants unjustified summary seizure of the Plaintiffs private
property [land].
4. Such other and further relief as the court finds proper.
End of Document
419
Memorandum of Points and Authorities in Support of Defendants

Motion to Dismiss for Failure to State a Claim Upon Which Relief
can be Granted or, in the Alternative, to Stay Proceedings Pending
Resolution of State Court Actions
Robert E. MCCULLOUGH, Plaintiff, v. CITY OF DEL MAR; Lifeguard Pat Vergne; Lifeguard Adam Chase;
Assistant City Manager Joe Hoefginl San Diego County Sheriffs Department; Minh Nguyen #2259; Michael
Nuemann #2422; Del Mar Fairgrounds; dba 22nd District Agricultural Association; Ralph Grimsley; L. Valdez; San
Diego County District Attorney; Assistant D.A. Ms. Phillips; and Does 1 through 50, Defendants. | United States
District Court, S.D. California.
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Jurisdiction:
California
Delivery Details
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Client ID:
1111
Comment:
Robert E. MCCULLOUGH, Plaintiff, v. CITY OF DEL MAR;..., 2003 WL 23840031...

Robert E. MCCULLOUGH, Plaintiff,
v.
CITY OF DEL MAR; Lifeguard Pat Vergne; Lifeguard Adam Chase; Assistant City Manager Joe Hoefginl San
Diego County Sheriffs Department; Minh Nguyen #2259; Michael Nuemann #2422; Del Mar Fairgrounds; dba
22nd District Agricultural Association; Ralph Grimsley; L. Valdez; San Diego County District Attorney;
Assistant D.A. Ms. Phillips; and Does 1 through 50, Defendants.
Case No. 02-CV-1980 W (POR).
February 6, 2003.
No Oral Argument Pursuant to Courts Request
Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss for Failure to State a Claim
Upon Which Relief can be Granted or, in the Alternative, to Stay Proceedings Pending Resolution of State Court
Actions
Homan & Stone, Gene S. Stone (Bar No. 162112), 12 North Fifth Street, Redlands, California 92373, (909) 307-9380, (909)
793-0210 - Fax, Attorneys for Defendants, 22nd District Agricultural Association; Ralph Grimsley; and L. Valdez.
Action Filed: October 4, 2002
Date: March 4, 2003
Time: On papers
Courtroom: 7
I.
INTRODUCTION
In the main, it appears that plaintiffs amended complaint alleges various statutory violations, including the RICO act.
Before proceeding to the substantiative arguments in connection with this motion to dismiss, the court is invited to examine
the matter in which plaintiff has pled his first amended complaint. Even a cursory examination of plaintiffs first amended
complaint discloses that it is essentially a complaint prepared for use in the state courts, which has been slightly modified,
and used by this plaintiff to proceed with this action in Federal Court against these defendants. In short, what plaintiff has
done is to recycle a complaint which has been served by plaintiff in numerous state court actions in California for the
purposes of proceeding in Federal Court. Use of this format is inconsistent with the requirements of Federal Court practice.
This case is the latest round in an avalanche of lawsuits filed by plaintiff Robert E. McCullough in an attempt to wrest
monetary damages from the county of San Diego, the States 22nd Agricultural District and the City of Del Mar for an
imagined RICO conspiracy and other causes of action. The alleged conspiracy began with his arrest on September 12,
2001, for making terrorist treats and driving under the influence of alcohol. This resulted in McCulloughs re-arrest on
December 11, 2001 for violation of an O/R release, and culminated in prosecution on those charges. Plaintiffs pattern over
the last eight months has been to file lawsuits making wild claims and to file new lawsuits alleging the same facts when
defendants demurrers are sustained and/or the complaints are dismissed.
421
McCullough has now filed his eighth complaint, alleging RICO violations by an ever expanding pool of conspirators under
the same unsupported and nonsensical causes of action. The complaint should be dismissed and McCullough should not be
allowed his eighth bite of the apple. In the alternative, the court should stay proceedings in this case until final resolution of
the numerous parallel lawsuits previously filed by McCullough in state court.
II.
PROCEDURAL HISTORY
The procedural history in this matter is long and varied:
Round 1: On May 29, 2002, McCullough sued The City of Del Mar, the San Diego County Sheriffs Department, the Del
Mar Lifeguards Vergne and Chase and numerous Sheriff Deputies, in San Diego Superior Court Case Number GIC789363.
He alleged that he was falsely arrested and beaten, following a September 12, 2001, report that he had made a terrorist threat
against the Lifeguards. (See Exhibit 1- First Amended Complaint in Case GIC 789363) On August 30, 2002, Judge Charles
Hayes sustained the defendants demurrer to the original complaint. The defendants demurrered to McCulloughs first
amended complaint. He did not oppose the demurrers and they were sustained without leave to amend. Judgement was
entered on behalf of the Department and its Deputies on January 3, 2003.
Round 2: On May 31, 2002, McCullough sued the San Diego County Public Defender and the Deputy Public Defenders in
San Diego Superior Court Case No. GIC 789622. He alleged they were guilty of malpractice in their defense of his criminal
cases. (Exhibit 2- First Amended Complaint in Case No. GIC 789622) On January 9, 2003, Judge Richard Haden sustained
the defendants demurrer to the original complaint. The defendants demurrered to McCulloughs first amended complaint.
Again, he did not oppose the demurrers and they were sustained without leave to amend. Judgment was entered in favor of
the defendants on November 18, 2002. McCullough has not appealed this judgement.
Round 3: On May 31, 2002, McCullough sued Sheriff Deputies Neumann and Nguyen alleging that his arrest on December
11, 2001 was part of a RICO conspiracy with all of the defendants named in the other lawsuits. (Exhibit 3- First Amended
Complaint Case Number GIN 021415) Judge Lisa Guy-Schall sustained the defendants demurrer to the original complaint
on September 26, 2002. Plaintiffs first Amended complaint contained virtually all of the same allegations made in his
current Federal RICO lawsuit. The deputies and the sheriffs department demurred to the first amended complaint.
McCullough again filed no opposition. The demurrer was sustained on December 5, 2002, and McCullough was given ten
days to amend his complaint. As of the date of this motion, McCullough has not filed a second amended complaint.
Round 4: In June 2002, McCullough sued the Del Mar Fairgrounds (22nd District Agricultural Association) and its security
guards in San Diego Superior court Case No. GIN 021428. He again alleged that he was falsely arrested on December 11,
2002. The court sustained the defendants demurrer to this complaint. Plaintiff was given leave to amend. Again, Plaintiff
failed to amend the complaint. On October 31, 2002, judgement was entered in favor of the defendants after McCullough
failed to file the amended complaint. (Exhibit 4 - McCulloughs Complaint in Case No. GIN 021428)
Round 5: On July 3, 2002, McCullough sued the City of Del Mar, Lifeguards Vergne and Chase and Assistant City
Management Hoefgen, in Case No. GIN 022350. (Exhibit 5-First Amended Complaint in Case No. GIN 022350) The
defendants demurrered to the first Amended complaint. McCullough did not oppose the demurrer and Judge Gui-Schall
sustained the demurrer without leave to amend on January 9, 2003.
Round 6: On November 8, 2002, McCullough sued the City of Del Mar, its lifeguards, and Assistant City Manager Hoefgen
in Case No. GIC 799758. (Exhibit 6-First Amended Complaint in Case No. GIC 799758) The defendants demurrered to
McCulloughs first amended complaint and the hearing on the demurrer is pending.
Round 7: On December 5, 2002 McCullough sued the Del Mar Fairgrounds, and its employees, in Case No. GIC 801234.
(Exhibit 7 McCulloughs complaint in Case No. GIC 801234) The defendants have demurred and field a special motion to
422
strike. The hearing on that demurrer and motion to strike is pending.

Round 8 (The present case): On October 4, 2002, McCullough filed his original complaint in this case. Although
McCulloughs request for informa pauperis status was granted, the court the reviewed the original complaint sua sponte and
ordered a dismissal on October 17, 2002. Allegations of libel, slander, assault, battery, negligence and deflemation arising
from his September 12, 2001 arrest were dismissed with prejudice. McCullough however, was given leave to amend his
RICO allegations and his remaining state claims with respect to the December 11, 2001 arrest. McCullough filed his first
Amended complaint on December 13, 2002. This amended complaint deleted a few defendants, added a number of new
defendants, but retained most of the same allegations. McCullough also filed a RICO case statement. Defendant 22nd
Agricultural District dba Del Mar Fairgrounds, now files this motion to dismiss pursuant to Federal Rules of Court,
12(b)(6). In the alternative, it seeks to have this case stayed until the parallel state actions are resolved.
III.
STATEMENT OF FACTS
McCullough alleges the following facts:
McCullough, who had been in custody on a criminal case arising out of this September 12, 2001 arrest (Case No. CN
134228), was released on his own recognizance (O/R) by Judge Marguerite L. Wagner on December 6, 2001. (See
Plaintiffs First Amended Complaint and Exhibit 8) attached thereto, hearing transcript at page 5, line 2-28 in San Diego
Superior Court Case No. CN 134228. See also First Amended Complaint [Compl.] at page 2, liens 24-26 [pp:11].) As a
condition of his release, McCullough was to totally abstain from alcohol and have no contact with Del Mar City Lifeguards
Patrick Vergne, Adam Chase and Jon Edelbrock. (Id.)
On December 11, 2001, McCullough went to the Del Mar City Hall to complaint about his mistreatment by City Lifeguards
Vergne and Chase on September 12th and to acquire a claim from. Vergne and Chase were alleged to have made 991 calls
reporting that McCullough had made terrorist threats against them. McCullough told Del Mar Assistant City Manager Joe
Hoefgen, that he intended to file a lawsuit against he City for false arrest and imprisonment [RICO] [sic]. When Hoefgen
refused to negotiate a settlement of his claim, McCullough left City Hall. Hoefgen then allegedly called the Department and
lodged a false complaint that alleged Plaintiff Robert E. McCullough violated his Court Order for release by speaking with
Adam Chase. Hoefgens alleged motive in making this false complaint was to sabotage McCullough claim against the City.
(Compl. 2:4-3:5 and 3:20-28.) Chase also made a phone call to the Sheriffs Department alleging that McCullough had
contacted him through violation of the courts order. (Compl. 2:27 - 3:5.)
Based upon the complaints of Hoefgen and CHASE, a warrant was issued for McCulloughs arrest. (Compl. 3:3-5.)
That evening, McCullough was detained and arrested by two security guards at the Del Mar Fairgrounds for the San Diego
County Sheriffs Department who apparently were looking for [him]. (Compl. 3:6-9.) McCullough alleges that the security
guards falsely reported that McCullough made terrorist threats about the Del Mar Fairgrounds. (Compl 5:19-23.) A
Deputy Sheriff Barrios took McCullough to jail where he was charged with disobeying a Court order and public
intoxication. (Compl. 3:15-16.)
McCullough claims that neither Deputy Barrios, nor any o the other Department employees present at the jail would allow
McCullough to take a breath test to prove that he was not intoxicated. (Compl. 3:15-19.)
McCulloughs criminal defense attorney brought a demurrer to the charges that he had violated a Court order. Judge Richard
Mills ruled that Judge Wagners O/R release was not a Court and, therefore, McCullough had not been in violation of that
order. The demurrer was sustained and the criminal charges relating to McCulloughs O/R violations were dismissed.
(Compl. 4:1-16.) Cari Phillips was the Deputy District Attorney (DDA) who argued in opposition to McCulloughs
demurrer. (Compl. 4:16-20.)
423
On February 4, 2002, Deputies Neumann and Nguyen were called by DDA Phillips to testify in McCulloughs criminal case.
McCullough alleges that they offered accounts of the events of December 11, 202. The Court failed to believe them.
McCullough does not describe what it is these Deputies testified to. This is the only referenced to the Deputies Neumann and
Nguyen in the complaint. Neither the security guards nor lifeguards appeared at he trial. McCullough was acquitted. (Compl.
5:14-25.)
On February 7, 2002, McCullough filed a government claim with the County of San Bernardino for damages allegedly
suffered as a result of his arrest on December 11, 2001. (Pursuant to Fed. R. Ev. 201, Defendants request that the Court take
judicial notice of this claim, Exh. 6 and the accompanying Declaration of Mary Ann Wiggs [Wiggs Declaration to the
Countys Motion].) In that claim, McCullough alleged that he had been falsely arrested and physically assaulted by Sheriffs
deputies. McCullough made no claims for invasion of privacy. McCulloughs claim for the December 11th arrest was
rejected on April 2, 2002. (Wiggs Declaration. See also Exhibit D to Plaintiffs First Amended Complaint.) McCullough
did not file a claim with the County for any alleged wrongdoing that followed his December 11th arrest-including any
claimed abuse by the District Attorneys Office. (Wiggs Declaration.)
McCulloughs First Amended Complaint seeks damages for alleged injuries arising out of his arrest on December 11, 2001
and subsequent criminal proceedings. The Sheriffs Department and Deputies Neumann and Nguyen were named in
McCulloughs original complaint. The District Attorney and Deputy District Attorney Cari Phillips were added in the
December 13, 2002 amended complaint.
The First Amended Complaint alleges six Counts-invasion of privacy (Count One), false arrest (County Two),
emotional distress (Count Three), loss of wages (Count Four), loss of property (County Five), and punitive damages
(Count Six). Although none of McCulloughs Counts mentions the Racketeering Influenced and Corrupt Organizations
Act, 18 U.S.C. 1961-1968) (RICO), he did file a separate RICO Case Statement.
IV.
DISMISSAL IS JUSTIFIED AS PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED
The District Court may dismiss a complaint where the allegations made thereon fail to state a claim upon which relief can be
granted Federal Rules of Civil Procedure 12(b)(6). When considering a motion to dismiss for failure to state a claim, the
District Court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the
sufficiency of the claim in favor of the plaintiff. Doe v. United States Department of Justice, 753 F. 2d 1092, 1102 (D.Cir.
1985) (Citations omitted). However, conclusorary allegations, unwarranted inferences and legal conclusions masquerading as
factual conclusions will not suffice to prevent a dismissal pursuant to this rule. Fernandez - Montez v. Allied Piolets
Association, 1987 F2d 278, 284 (5th Cir. 1993.) Review of the present first Amended complaint field by plaintiff in these
actions discloses that it is replete with extraneous facts, unnecessary legal argument, as well as unnecessary conclusions.
However, assuming all of the Factual Allegations made by McCullough as true, and based upon the authorities set below,
the first Amended complaint fails to state a claim against the 22nd Agricultural District.
V.
MCCULLOUGH HAS FAILED TO ALLEGE A CAUSE OF ACTION AGAINST DEFENDANT UNDER THE
FEDERAL RICO STATUTES
McCullough mentions the Federal RICO statutes a number of times in his first amended complaint. It is apparent that he
intends to plead a civil RICO cause of action because he has included a RICO case statement in compliance with local Court
rules. This is simply not the type of case to which the RICO act applies and these defendants are not proper parties to such an
action.
424
The RICO statutes was originally written as a weapon against organized crime. The primary purpose in an acting RICO is to
cope with the infiltration of legitimate businesses by organized crime. Johnsen v. Rogers, 551 F. Supp. 281, 285 (CD Ca
1982). RICO allows for civil lawsuits in certain limited circumstances: It shall be unlawful for any person employed by or
associated with any enterprise engaged in or the activities of which effect, interstate or foreign commerce, to induct or
participate, directly or indirectly, and the conduct of such enterprises affairs through a pattern of racketeering activity or
collection of unlawful debt. 18 U.S.C. 1962).
The RICO statute was not written to provide McCullough with a remedy in his squabbles with the named and unnamed
parties to this case.
1. The 22nd Agricultural Association May Not Be Named in the Civil RICO Action
The 22nd Agricultural Association has been sued by plaintiff. It is a well established principal that municipal entities are not
subject to RICO liability. Lancaster Community Hospital v. Antelope Valley Hospital, 940 F2d 397, 404 (9th Circuit 1991).
2. Mccullough Makes No Allegations That the Agricultural Association Participated in an Enterprise Engaged in
Interstate Commerce
In order to establish a RICO cause of action, McCullough must allege that defendants were part of an enterprise engaged in
or effected Interstate Commerce. William Electric Games, Inc., v. Berry 42F. Supp. 2nds 785, 790 (N.D. Ill. 1999).
McCullough does not identify the Enterprise in which the defendants were allegedly engaged, nor does he suggest that this
unspecified Enterprise was engaged in or effected Interstate Commerce. Without such allegations, the first Amended
complaint fails to state a claim for RICO.
3. None of the Defendants Are Alleged of Conducted or Participated in the Enterprise Affairs
18 U.S.C. (1962) also requires a showing that the named defendant conduct or participate, directly or indirectly, and the
conduct of the Enterprises affairs... the Supreme Court has interpreted this requirement as a narrow one. For liability attach
one must have some part in directing the enterprises affairs. Reves v. Ernest & Young, 507 U.S. 170, 179 (1993).
McCullough makes no allegations to suggest that defendant had the power to direct the affairs of this fictional enterprise.
4. No Predicate Acts of Racketeering Are Alleged

In order to maintain the cause of action under RICO, McCullough must allege that participants in the enterprise committed
at least two predicate acts of racketeering. Emery v. American General finance, Inc., 71 F3d 1343, 1349 (7th Circuit 1995);
18 U.S.C. 1961 (5) Predicate acts are indictable under a list of offense enumerated in 18 U.S.C. 1961 (1) and punishable
as felonies. Predicate acts must be pled with particularity, rather than through vague, general allegations. Rand v. Anaconda
Electronics, 623 F. Supp. 1976, 182 (E.D. N.Y. 1985). While the list in 1961 (1) is extensive, the vast majority of offenses
are federal in nature. The only state crimes which may be alleged to constitute a predicate act are the felony offense of
murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in controlled
substances or listed chemical. 18 U.S.C. 1961 (1)(A).
McCullough has failed to allege even one predicate act which would satisfy the elements or RICO, let alone the two acts
required by 1961 (5).
425
5. Mccullough Does Not Allege a Long Term Pattern of Activity

RICO is concerned with long term, ongoing criminal enterprises Predicate acts extending over a few weeks or months and
threatening no future criminal conduct to not satisfy the requirement. H.J. Inc., v. Northwestern Bell Tel. Co., 492, U.S. 229,
242 (1989). While it is not a bright line rule, the 9th CIRCUIT has noted that no published decision has held the continuity
requirement to be satisfied by a pattern of activity lasting less than a year. Religious Technology Center v. Wollersheim, 971
F 2d 364, 366 (9th CIRCUIT 1992).
McCullough alleges a series of incidents from his first arrest on September 12, 2001, to his subsequent incident in December
2001. Even if the offenses alleged could be considered predicate acts, the span of three months does not reflect long term
criminal conduct to which RICO was intended to apply. Id at 367.
6. Mcculloughs Only Injury Arose Directly from the Alleged Predicate Acts and Is Personal in Nature
Standing under RICO requires more than a showing of injury caused by the alleged predicate acts themselves. RICO was not
enacted to provide a remedy for garden variety civil wrongs. McCullough must allege that he suffered a Commerical injury
caused by the conducting of Enterprises affairs through a pattern of racketeering activity. Johnsen v. Rogers, Supra, 285.
Here, McCulloughs claimed injuries arise directly from the alleged acts themselves. It is the alleged harassment, arrest and
prosecution that caused him to suffer emotionally and financially. Such injuries are properly addressed in other causes of
action brought against the proper parties. Moreover, McCulloughs claimed damages are in the nature of personal injuries,
rather than the sort of business or property losses contemplated at RICO. Economic losses that come from injuries
essentially personal in nature are not compensable under RICO. Oscar v. University Students Co.-Operative Association,
1965 F 2d 783, 787-788 (9th Circuit 1992).
VI.
MCCULLOUGH HAS FAILED TO ALLEGE A STATE CAUSE OF ACTION AGAINST THE 22ND
AGRICULTURAL DISTRICT OR ITS EMPLOYEES
A. THIS AGRICULTURAL DISTRICT HAS NO LIABILITY AS ITS EMPLOYEES HAVE NONE
McCullough does not appear to make any direct allegations against the 22nd Agricultural District. It is only in as a defendant
solely by virtue of being the employer of Grimsley and Valdez. They are not liable for an injury resulting from act and
omission of an employee... where the employee is immune from liability. California Government Code 815.2. The
Agricultural District is only liable to the extent that its employees are liable. Barnhardt v. Cabrillo Community College,
(1999) 76 Cal. App. 4th 818, 822.
B. MCCULLOUGHS STATE CLAIMS ARE BARRED BY HIS FAILURE TO COMPLY WITH THE
GOVERNMENT CLAIMS ACT
1. McCulloughs State Claims for Injuries Arising out of His September 12 Arrest Are Time Barred
McCulloughs first Amended complaint includes a copy of the notice the County sent him for his claim which alleged
injuries as a result of his December 11 arrest. His claim was rejected on April 2, 2002. McCullough had sixth months or until
October 2, 2002 to file a complaint alleging injury as a result of the December 11, 2001 arrest. California Government Code
945.6. The original complaint in this case was filed on October 4, 2002, two days after the limitation ran. All of
McCulloughs state claims are time barred.
426
2. Mccullough Failed to File a Claim for Invasion of Privacy

Before he may sue the AGRICULTURAL District or its employees, McCullough must present a governmental claim which
sets forth the factual basis for the recovery sought in the complaint. Donahue v. State of California, (1986) 178 Cal.App. 3d
795, 802. The sole factual allegations in McCulloughs claim stated that: Del Mar Fairgrounds is liable for its failure to
enforce its policy against false arrest, false imprisonment by its employees and failure policy for employees under subpoena
to appear in Court for trial when alleging crimes against plaintiff, Robert E. McCullough... Del Mar Fairgrounds failed to
protect plaintiff, Robert E. McCullough from false imprisonment by its employees by alleging plaintiff made terrorist threats
December 11, 2001, against Del Mar Fairgrounds. (Plaintiffs First Amended Complaint at page 3, lines 18-28)
No mention is made of the facts given rise to an invasion of privacy claim in McCulloughs lawsuit. This count should be
dismissed since McCullough had failed to Comply with the California Government Claims Act.
C. MCCULLOUGH HAS FAILED TO ALLEGE A CAUSE OF ACTION FOR A VIOLATION OF PRIVACY

McCullough asserts in his first count that the individual defendants invaded his privacy pursuant to 42 U.S.C. 227 and
California Civil Code 1708.8. 227 related to automatic telephone dialing systems. 1708.8 appears to be aimed at
paparazzi. Since there are no allegations that McCullough was called by telephone solicitors, nor did anyone sneak onto his
property to take his photograph, his invasion of privacy, makes absolutely no sense.
D. MCCULLOUGHS THIRD, FOURTH, FIFTH, & SIXTH COUNTS ARE NOT SEPARATE CAUSES OF
ACTION, BUT ARE FORMS OF REMEDY
McCulloughs Third, Fourth, Fifth, & Sixth counts seek to recover for his emotional stress, loss of wages, loss of
property and punitive damages. These are no independent causes of action, but rather remedies that have been improperly
plead. For purposes of a complaint, cause of action (or count) consists of the invasion of a primary right as opposed to the
particular theory of recovery asserted by a litigant and is distinguishable from the form of relief requested. Seeking of
different kinds of relief does not establish different causes of action. Big Boy Drilling Corp. v. Rankin, (1931) 213 Cal. 646.
These requested remedies, on their own, fail to state a claim upon which relief may be granted.
VII.
IF MCCULLOUGHS COMPLAINT IS NOT DISMISSED OUTRIGHT, THEN THE PROCEEDING IN THIS AS
SHOULD BE STAYED UNTIL THE PARALLEL STATE CASES ARE RESOLVED
Anyone reading the history of McCulloughs numerous lawsuits would recognize that, whenever he becomes dissatisfied
with the Judges rulings, Mr. McCullough simply files another complaint. Having become dissatisfied with the whole San
Diego County Superior Court bench, McCullough now seeks to resurrect his discarded allegations by filing a compilation of
his claims in this federal RICO Complaint. His conduct is they very essence of forum shopping.
The U.S. Supreme Court has authorized District Courts to stay federal lawsuits while related State actions are pursued to their
completion. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236
(1976). This Court has the discretion to stay proceedings while McCulloughs parallel case are brought to completion in
the Superior COURT. Colorado River, and its progeny, identified a number of factors that the Court may take into account
when considering the exercise of its discretion. Several of those factors are directly pertinent to this case, and weigh heavily
in favor of abstention.
427
A. Priority of Proceedings
One factor that weighs in favor of abstention is the order in which jurisdiction was obtained by the concurrent forums.
Colorado River, Supra at 818. In this case, McCullough filed his numerous state lawsuits months before filing this action.
The parties and several Superior Court judges had invested considerable time in reviewing McCulloughs claims before this
Court became involved.
B. Substantial Similarity
If the actions are substantially similar,the Court may find that they are parallel proceedings and may abstain on those
grounds. Exact parallelism is not required, so long as the proceedings are substantially similar. Nakash v. Marciano, 882
F.2d 1411, 1416 (9th Cir. 1989).
Here, McCullough has named all the same parties and alleged all of the same causes of action in his federal and state cases.
his Complaints involve the same incidents - his September 12th arrest and incarceration, his December 11th arrest and
incarceration and the subsequent criminal proceedings.
C. State Proceedings Are Adequate

State Court authority to provide the relief sought is a compelling factor in weighing abstention. Nakash supra, at 1416. In
Nakash, the Ninth Circuit held that the District Court properly stayed a subsequently filed federal case in a commercial
dispute that produced three lawsuits in the California Courts. The Plaintiff argued that, because it sought relief under the
federal RICO statutes, the state courts did not afford it the full relief it was due. The Nakash Court noted that the state courts
have concurrent jurisdiction in RICO claims, so the state proceedings were adequate. Id.
In this case the Superior Court also has concurrent jurisdiction over McCulloughs RICO claims. McCullough apparently
know this, as he chose to file his first RICO claim in the Superior Court.
D. Absence of Any Proceedings in Federal Court Case

In Colorado River, the Supreme Court found it significant that, in the federal case there had been no proceedings other than
the filing of the complaint. Colorado River, supra, at 820. In this case, this motion is the first proceedings after the filing of
the complaint.
E. Forum Shopping
The most compelling factor in this case is the need to discourage the practice of forum shopping. The facts in this case show
clearly that McCullough has filed his federal complaint in an attempt to find a more sympathetic judge and to avoid adverse
rulings by the state Court. Nakash, 882 F. 2d at 1417. This factor weighs strongly in favor of abstention. Id. The Nakash
Court found that the plaintiff filed the federal complaint because it had become dissatisfied with the rulings in the Superior
Court. The Ninth Circuit affirmed the District Court because it had no interest in encouraging this practice. Id.
McCullough filed his first six state lawsuits in May and July. Demurrers had been sustained with respect to each of his
original complaints by September. In October, McCullough filed this lawsuit in federal Court. Defendants find it significant
that McCullough did not file a Statement of Related Cases along with his original complaint, as required by the Local Rules.
428
This would have required him to identify each of his prior lawsuits and would have put this Court on notice of McCulloughs
sharp practices. Moreover, in his RICO Case Statement, McCullough makes no mention under paragraph 5e, of the
judgement already entered against him with respect to the Public Defenders Office. Instead, McCullough claims that he has
no firsthand knowledge of any Civil litigation against said Defendants other then [sic] what has been printed in the
Newspaper (RICO Statement at 8:4-6) One can only assume that he did not want his Court to know of the plethora of
lawsuits he had already filed in the Superior Court.
VIII.
CONCLUSION
The 22nd Agricultural District is not the director of a corporate enterprise engaged in erroneous acts, which caused
McCullough to suffer the sort of business losses remedied by RICO. The Districts lifeguards as Employees did not falsely
arrest McCullough are immune from liability. Because the Districts employees are not liable the McCullough State law
claims, the District is not liable. The Districts motion to dismiss should be granted.
In the alternative, if the Court does not dismiss McCulloughs first Amended complaint, this proceeding should be stayed
while the numerous lawsuits filed in the superior Court are brought to a conclusion.
End of Document
429
Memorandum of Points and Authorities in Support of Defendants

Motion to Dismiss for Failure to State a Claim Upon Which Relief
can be Granted or, in the Alternative, to Stay Proceedings Pending
Resolution of State Court Actions
Robert E. MCCULLOUGH, Plaintiff, v. CITY OF DEL MAR; Lifeguard Pat Vergne; Lifeguard Adam Chase;
Assistant City Manager Joe Hoefgin; San Diego County Sheriffs Department; Minh Nguyen #2259; Michael
Nuemann #2422; Del Mar Fairgrounds; dba 22nd District Agricultural Association; Ralph Grimsley; L. Valdez; San
Diego County District Attorney; Assistant D. A. Ms. Phillips; and Does 1 through 50, Defendants. | United States
District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:

Robert E. MCCULLOUGH, Plaintiff,
v.
CITY OF DEL MAR; Lifeguard Pat Vergne; Lifeguard Adam Chase; Assistant City Manager Joe Hoefgin; San
Diego County Sheriffs Department; Minh Nguyen #2259; Michael Nuemann #2422; Del Mar Fairgrounds; dba
22nd District Agricultural Association; Ralph Grimsley; L. Valdez; San Diego County District Attorney;
Assistant D. A. Ms. Phillips; and Does 1 through 50, Defendants.
Case No. 02-CV-1980 W(POR).
January 13, 2003.
No Oral Argument Pursuant to Courts Request
Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss for Failure to State a Claim
Upon Which Relief can be Granted or, in the Alternative, to Stay Proceedings Pending Resolution of State Court
Actions
John J. Sansone, County Counsel, County of San Diego, By Dennis I. Floyd, Senior Deputy (SBN: 111550), 1600 Pacific
Highway, Room 355, San Diego, California 92101, Telephone: (619) 531-6219, Facsimile: (619) 531-6005, Attorneys for
Defendants, San Diego County Sheriffs Department; Michael Neumann; Minh Nguyen; San Diego County District
Attorney; Cari Phillips.
TOPICAL INDEX
TABLE OF AUTHORITIES ..................................................................................................................................................
iii
I INTRODUCTION ...................................................................................................................................................................
II PROCEDURAL HISTORY ...............................................................................................................................................
III STATEMENT OF FACTS ...............................................................................................................................................
IV DISMISSAL IS JUSTIFIED AS PLAINTIFF HAS FAILED TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED ............................................................................................................................
V MCCULLOUGH HAS FAILED TO ALLEGE A CAUSE OF ACTION UNDER FEDERAL RICO

STATUTES ..................................................................................................................................................................................
(1) The Department and the D.A. May Not Be Named in Civil RICO Action .....................................................
(2) McCullough Makes No Allegations That Any County Defendants Participated in An Enterprise
Engaged in Interstate Commerce ..........................................................................................................................................
(3) None of the County Defendants Are Alleged to Have Conducted or Participated in the Enterprises
Affairs .............................................................................................................................................................................................
(4) No Predicate Acts of Racketeering Are Alleged ......................................................................................................
(5) McCullough Does Not Alleged A Long-Term Pattern of Activity ....................................................................
10
431
(6) McCulloughs Only Injury Arose Directly From the Alleged Predicate Acts and is Personal in
Nature .............................................................................................................................................................................................
10
(7) The D.A. and DDA Phillips Are Absolutely Immune From Liability ..............................................................
11
VI McCULLOUGH HAS FAILED TO ALLEGE A CAUSE OF ACTION AGAINST DEPUTIES

NEUMANN AND NGUYEN, DDA PHILLIPS, THE D.A. OR THE SHERIFFS DEPARTMENT ........
11
A. The Sheriffs Department and the DA Have No Liability As Their Employees Have None .....................
11
B. Deputies Neumann and Nguyen Are Absolutely Immune From Liaibility For Their Testimony at
McCulloughs Trial ....................................................................................................................................................................
12
C. McCulloughs State Law Claims Are Barred by His Failure to Comply With the Governmental
Claims Act ....................................................................................................................................................................................
12
(1) McCulloughs State Claims for Injuries Arising Out of His December 11th Arrest Are Time Barred
.............................................................................................................................................................................................................
12
(2) McCullough Failed to File a Claim for Invasion of Privacy ................................................................................
12
(3) McCullough Failed to Present a Claim Concerning the Conduct of the District Attorney ........................
13
D. McCullough Has Failed to Allege a Cause of Action for Violation of Privacy .............................................
13
E. McCulloughs Second County for False Arrest Fails to State a Claim Against the County
Defendants ....................................................................................................................................................................................
14
F. McCulloughs Third, Fourth, Fifth and Sixth Counts Are Not Separate Causes of Action, But Are
Forms of Remedy .......................................................................................................................................................................
14
VII IF McCULLOUGHS COMPLAINT IS NOT DISMISSED OUTRIGHT, THEN THE

PROCEEDINGS IN THIS CASE SHOULD BE STAYED UNTIL THE PARALLEL STATE CASES
ARE RESOLVED ......................................................................................................................................................................
15
A. Priority of Proceedings .......................................................................................................................................................
15
B. Substantial Similarity ..........................................................................................................................................................
16
C. State Proceedings Are Adequate .....................................................................................................................................
16
D. Absence of Any Proceedings in Federal Court Case ...............................................................................................
17
E. Forum Shopping ....................................................................................................................................................................
17
VIII CONCLUSION .................................................................................................................................................................
18
CASES
Barnhardt v. Cabrillo Community College (1999) 76 Cal.App.4th 818 ...........................................
11
432
Big Boy Drilling Corp. v. Rankin (1931) 213 Cal. 646 ...........................................................................
15
Briscoe v. Lahue (1983) 460 U.S. 325 ..........................................................................................................
12
Colorado River Water Conservation Dist. v. United States (1976) 424 U.S. 800 [47 L. Ed.
2d 283, 96 S. Ct. 1236] .......................................................................................................................................
15, 17
Cullinan v. Abramson (6th Cir. 1997) 128 F.3d 301 ................................................................................
11,
Doe v. United States Dept of Justice (D.C. Cir. 1985) 753 F.2d 1092 .............................................
Donahue v. State of California (1986) 178 Cal. App. 3d 795...............................................................
12
Emery v. American General Finance, Inc. (7th Cir. 1995) 71 F.3d 1343.........................................
Fernandez-Montes v. Allied Pilots Assn (5th Cir. 1993) 987 F.2d 278............................................
Hamilton v. City of San Diego (1990) 217 Cal. App. 838 ....................................................................
14
H.J. Inc. v. Northwestern Bell Tel. Co. (1989) 492 U.S. 229 ................................................................
10
Johnsen v. Rogers (CD Ca 1982) 551 F. Supp. 281 .................................................................................
8, 10
Lancaster Comm. Hosp. v. Antelope Valley Hosp. (9th Cir. 1991) 940 F.2d 397 .........................
Moore v. Conliffe (1994) 7 Cal.4th 634 ........................................................................................................
12
Nakash v. Marciano (9th Cir. 1989) 882 F.2d 1411.................................................................................
16, 17
National Assn for the Advancement of Psychoanalysis v. California Bd. of Psychology (9th
Cir. 2000) 228 F.3d 1043 ...................................................................................................................................
Oscar v. University Students Co-Operative Assoc. (9th Cir. 1992) 965 F.2d 783 .........................
11
Rand v. Anaconda Electronics (ED N.Y. 1985) 623 F. Supp. 176 .....................................................
Religious Technology Center v. Wollersheim (9th Cir. 1992) 971 F.2d 364 ...................................
10
Reves v. Ernst & Young (1993) 507 U.S. 170.............................................................................................
Schweitzer v. Scot (1979, CD Cal) 469 F. Supp 1017 .............................................................................
Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd. (9th Cir. 1956) 245 F.2d 67 ..................
2, 3
Oscar v. University Students Co-Operative Assoc. (9th Cir. 1992) 965 F.2d 783 .........................
11
Williams Electronic Games, Inc. v. Barry (N.D. Ill. 1999) 42 F. Supp. 785 .................................
STATUTES
Section 1961(1) ...................................................................................................................................................
433
Section 1961(1)(A) ............................................................................................................................................
Section 1961(5) ...................................................................................................................................................
Sections 1961-1968 ............................................................................................................................................
Section 1962(c) ...................................................................................................................................................
8, 9

Section 227 ...........................................................................................................................................................
13
California Civil Code

Section 47(b) ........................................................................................................................................................
12
Section 1708.8 .....................................................................................................................................................
13

Section 815.2 ........................................................................................................................................................
11
Section 945.6 ........................................................................................................................................................
12
Federal Rules of Civil Procedure

Rule 12(b)(6) ........................................................................................................................................................
4, 7
Federal Rules of Evidence

Section 201 ...........................................................................................................................................................

Date: February 18, 2003
Time: On Papers
Courtroom: 7

I
INTRODUCTION
This case is the latest round in an avalanche of lawsuits filed by Plaintiff Robert E. McCullough in his effort to wrest
monetary damages from the County of San Diego, the States 22nd Agricultural District and the City of Del Mar for an
imagined RICO conspiracy. The alleged conspiracy began with his arrest on September 12, 2001 for making terrorist threats
and driving under the influence of alcohol, included his re-arrest on December 11, 2001 for violation of an O/R release, and
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culminated in his prosecution on those charges. Plaintiffs pattern over the last eight months has been to file lawsuits making
his wild claims and then to file new lawsuits alleging the same facts when the defendants demurrers are sustained.
McCullough has now filed his seventh complaint, alleging RICO violations by an ever-expanding pool of conspirators under
the same unsupported and nonsensical causes of action. The Complaint should be dismissed and McCullough should not be
allowed his seventh bite of the apple. In the alternative, the Court should stay proceedings in this case until final resolution of
the numerous parallel lawsuits previously filed by McCullough in state court.
II
PROCEDURAL HISTORY
Round 1: On May 29, 2002, McCullough sued The City of Del Mar, the San Diego County Sheriffs Department (the
Department), Del Mar Lifeguards Vergne and Chase, and Sheriffs Deputies Barrios, Augustine, Avila and Gibson, in San
Diego County Superior Court Case No. GIC 789363. He alleged that he was falsely arrested and beaten, following a
September 12, 2001 report that he had made a terrorist threat against the lifeguards. (Exhibit [Exh.] 1 - First Amended
Complaint in Case No. GIC 789363.)1 On August 30th, Judge Charles Hayes sustained the Defendants demurrer to the
Original Complaint. The Defendants demurrered to McCulloughs First Amended Complaint. He did not oppose the
demurrers and they were sustained without leave to amend. Judgment was entered on behalf of the Department and its
Deputies on January 3, 2003.
1
Defendants request that this Court take judicial notice of the files in the identified San Diego County Superior Court Cases
pursuant to Fed. R. Ev. 201; Schweitzer v. Scot, 469 F Supp 1017, 1020 (1979, CD Cal). On a [Rule 12(b)(6)] motion to dismiss
... a court may take judicial notice of facts outside the pleadings. Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d
67, 70 (9th Cir. 1956).
Round 2: On May 31, 2002, McCullough sued the San Diego County Public Defender and Deputy Public Defenders Bridges
and Mathews in San Diego County Superior Court Case No. GIC 789622. He alleged that they were guilty of malpractice in
their defense of his criminal cases. (Exh. 2 - First Amended Complaint in Case No. GIC 789622.) On August 9th, Judge
Richard Haden sustained the Defendants demurrer to the Original Complaint. The Defendants demurrered to McCulloughs
First Amended Complaint. Again, he did not oppose the demurrers and they were sustained without leave to amend.
Judgment was entered in favor of the Defendants on November 18, 2002. McCullough has not appealed this judgment.
Round 3: On May 31, 2002, McCullough sued Sheriffs Deputies Neumann and Nguyen alleging that his arrest on December
11, 2001 was part of a RICO conspiracy with all of the defendants named in his other lawsuits. (Exh. 3 - First Amended
Complaint in Case No. GIN 021415. Judge Lisa Guy-Schall sustained the Defendants demurrer to the Original Complaint on
September 26, 2002. Plaintiffs First Amended Complaint contained virtually all of the same allegations made in his current
federal RICO lawsuit. The Deputies and the Sheriffs Department demurrered to the First Amended Complaint. McCullough
again filed no opposition. The demurrer was sustained on December 5th and McCullough was given ten days to amend his
complaint. As of the date of this motion, McCullough has yet to file his Second Amended Complaint.
Round 4: McCullough sued the Del Mar Fairgrounds (22nd District Agricultural Association) and its security guards, in San
Diego County Superior court Case No. GIN 021428. He again alleged that he was falsely arrested on December 11, 2002.
The court sustained the defendants demurrer to this complaint. On October 31, 2002, judgment was entered in favor of the
defendants after McCullough failed to file an amended complaint.
Round 5: On July 3, 2002, McCullough sued the City of Del Mar, lifeguards Vergne and Chase, and Assistant City Manager
Hoefgen, in Case No. GIN 022350. (Exh. 4 - First Amended Complaint in Case No. GIN 022350.) The defendants
demurrered to the First Amended Complaint. McCullough did not oppose the demurrer and Judge Guy-Schall sustained the
demurrer without leave to amend on January 9, 2003.
Round 6: On November 8, 2002, McCullough sued the City of Del Mar, lifeguards Vergne and Chase, and Assistant City
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Manager Hoefgen, in Case No. GIC 799758. (Exh. 5 - First Amended Complaint in Case No. GIC 799758. The defendants
demurrered to McCulloughs First Amended Complaint. Hearing on that demurrer is pending.
Round 7 (the present case): On October 4, 2002, McCullough filed his original complaint in this case. Although
McCulloughs request for in forma pauperis status was granted, the Court reviewed the original complaint sua sponte and
ordered its dismissal on October 17, 2002. Allegations of libel, slander, assault, battery, negligence and defamation arising
from his September 12, 2001 arrest were dismissed with prejudice. McCullough, however, was given leave to amend his
RICO allegations and his remaining State claims with respect to the December 11, 2001 arrest. McCullough filed his First
Amended Complaint on December 13, 2002. This amended complaint deleted a few defendants, added a number of new
defendants, but retained most of the same allegations made in the original. McCullough also filed a RICO Case Statement.
Defendants SAN DIEGO COUNTY SHERIFFS DEPARTMENT, MICHAEL NEUMANN, MINH NGUYEN, SAN
DIEGO COUNTY DISTRICT ATTORNEY and CARI PHILLIPS (collectively referred to as the County Defendants) now
file this motion to dismiss pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6). In the alternative, they seek to have
this case stayed until the parallel State actions are resolved.
III
STATEMENT OF FACTS
McCullough alleges the following facts:
McCullough, who had been in custody on a criminal case arising out of his September 12, 2001 arrest (Case No. CN
134228), was released on his own recognizance (O/R) by Judge Marguerite L. Wagner on December 6, 2001. (See
Plaintiffs First Amended Complaint and Exhibit C attached thereto, hearing transcript at page 5, lines 24-28 in San Diego
Superior Court Case No. CN 134228. See also First Amended Complaint [Compl.] at page 2, lines 24-26 [pp:11].) As a
condition of his release, McCullough was to totally abstain from alcohol and have no contact with Del Mar City Lifeguards
Patrick Vergne, Adam Chase and Jon Edelbrock. (Id.)
On December 11, 2001, McCullough went to the Del Mar City Hall to complain about his mistreatment by City Lifeguards
Vergne and Chase on September 12th and to acquire a claim form. Vergne and Chase were alleged to have made 911 calls
reporting that McCullough had made terrorist threats against them. McCullough told Del Mar Assistant City Manager Joe
Hoefgen, that he intended to file a lawsuit against the City for false arrest and imprisonment [RICO] [sic]. When Hoefgen
refused to negotiate a settlement of his claim, McCullough left City Hall. Hoefgen then allegedly called the Department and
lodged a false complaint that alleged Plaintiff Robert E. McCullough violated his Court Order for release by speaking with
Adam Chase. Hoefgens alleged motive in making this false complaint was to sabotage McCulloughs claim against the
City. (Compl. 2:4-3:5 and 3:20-28.) Chase also made a phone call to the Sheriffs Department alleging that McCullough had
contacted him in violation of the courts order. (Compl. 2:27-3:5.)
Based upon the complaints of Hoefgen and Chase, a warrant was issued for McCulloughs arrest. (Compl. 3:3-5.)
That evening, McCullough was detained and arrested by two security guards at the Del Mar Fairgrounds for the San Diego
County Sheriffs Department who apparently were looking for [him]. (Compl. 3:6-9.) McCullough alleges that the security
guards falsely reported that McCullough made terrorist threats about the Del Mar Fairgrounds. (Compl. 5:19-23.) A
Deputy Sheriff Barrios took McCullough to jail where he was charged with disobeying a court order and public
intoxication. (Compl. 3:15-16.)
McCullough claims that neither Deputy Barrios, nor any of the other Department employees present at the jail would allow
McCullough to take a breath test to prove that he was not intoxicated. (Compl. 3:15-19.)
McCulloughs criminal defense attorney brought a demurrer to the charges that he had violated a court order. Judge Richard
Mills ruled that Judge Wagners O/R release was not a court order and, therefore, McCullough had not been in violation of
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that order. The demurrer was sustained and the criminal charges relating to McCulloughs O/R violations were dismissed.
(Compl. 4:11-16.) Cari Phillips was the Deputy District Attorney (DDA) who argued in opposition to McCulloughs
demurrer. (Compl. 4:16-20.)
On February 4, 2002, Deputies Neumann and Nguyen were called by DDA Phillips to testify in McCulloughs criminal case.
McCullough alleges that they offered accounts of the events of December 11, 2002. The court failed to believe them.
McCullough does not describe what it is these Deputies testified to. This is the only reference to Deputies Neumann and
Nguyen in the complaint. Neither the security guards nor the lifeguards appeared at the trial. McCullough was acquitted.
(Compl. 5:14-25.)
On February 7, 2002, McCullough filed a governmental claim with the County of San Diego for damages allegedly suffered
as a result of his arrest on December 11, 2001. (Pursuant to Fed. R. Ev. 201, Defendants request that the Court take judicial
notice of this claim, Exh. 6, and the accompanying Declaration of Mary Ann Wiggs [Wiggs Declaration].) In that claim,
McCullough alleged that he had been falsely arrested and physically assaulted by Sheriffs deputies. McCullough made no
claims for invasion of privacy. (Exh. 6.) McCulloughs claim for the December 11th arrest was rejected on April 2, 2002.
(Wiggs Declaration. See also Exhibit D to Plaintiffs First Amended Complaint.) McCullough did not file a claim with the
County for any alleged wrongdoing that followed his December 11th arrest - including any claimed abuse by the District
Attorneys Office. (Wiggs Declaration.)
McCulloughs First Amended Complaint seeks damages for alleged injuries arising out of his arrest on December 11, 2001
and subsequent criminal proceedings. The Sheriffs Department and Deputies Neumann and Nguyen were named in
McCulloughs original complaint. The District Attorney and Deputy District Attorney Cari Phillips were added in the
December 13, 2002 amended complaint.
The First Amended Complaint alleges six counts - invasion of privacy (Count One), false arrest (Count Two),
emotional stress (Count Three), loss of wages (Count Four), loss of property (Count Five), and punitive damages
(Count Six). Although none of McCulloughs counts mentions the Racketeering Influenced and Corrupt Organizations Act,
18 U.S.C. 1961-1968) (RICO), he did file a separate RICO Case Statement.
IV
DISMISSAL IS JUSTIFIED AS PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED
The District Court may dismiss a complaint where the allegations made therein fail to state a claim upon which relief can be
granted. Fed. R. Civ. Proc. 12(b)(6). When considering a motion to dismiss for failure to state a claim, the district court must
take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the
claim in favor of the plaintiff. Doe v. United States Dept of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985) (citations
omitted). However, conclusory allegations, unwarranted inferences and legal conclusions masquerading as factual
conclusions will not suffice to prevent a dismissal pursuant to this rule. National Assn for the Advancement of
Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000); Fernandez-Montes v. Allied Pilots
Assn, 987 F.2d 278, 284 (5th Cir.1993).
Taking all of the factual allegations made by McCullough as true, and based upon the authorities cited below, the First
Amended Complaint fails to state a claim against any of the County Defendants.
V
McCULLOUGH HAS FAILED TO ALLEGE A CAUSE OF ACTION AGAINST ANY COUNTY DEFENDANT
UNDER THE FEDERAL RICO STATUTES
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McCullough mentions the federal RICO statutes a number of times in this First Amended Complaint. (Compl. 3:6;
5:28-6:14.) It is apparent that he intends to plead a civil RICO cause of action because he has included a RICO Case
Statement in compliance with Local Court Rules. This is simply not the type of case to which the RICO Act applies and these
defendants are not proper parties to such an action.
The RICO statute was originally written as a weapon against organized crime. Congress primary purpose in enacting RICO
was to cope with the infiltration of legitimate business by organized crime. Johnsen v. Rogers, 551 F. Supp. 281, 285 (CD
Ca 1982). RICO allows for civil lawsuits in certain limited circumstances:
It shall be unlawful for any person employed by or associated with any enterprise engaged in or the
activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly,
in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of
unlawful debt.
18 U.S.C. 1962(c).
The RICO statute was not written to provide McCullough with a remedy in his squabble with the named and unnamed parties
to this case.
(1) The Department and the D.A. May Not Be Named in a Civil RICO Action
The Sheriffs Department and the D.A. are sued in their capacity as the employers of the three individual named County
Defendants. They are sued as Departments of the County of San Diego. It is a well-established principal that municipal
entities are not subject to RICO liability. Lancaster Comm. Hosp. v. Antelope Valley Hosp., 940 F.2d 397, 404 (9th Cir.
1991).
(2) McCullough Makes No Allegations That Any County Defendants Participated In An Enterprise Engaged in
Interstate Commerce
In order to establish a RICO cause of action, McCullough must allege that the defendants were part of an enterprise that
engaged in or affected interstate commerce. 18 U.S.C. 1962(c); Williams Electronic Games, Inc. v. Barry, 42 F. Supp. 2d
785, 790 (N.D. Ill. 1999). McCullough does not identify the enterprise in which the County defendants were allegedly
engaged, nor does he suggest that this unspecified enterprise was engaged in or affected interstate commerce. Without such
allegations, the First Amended Complaint fails to state a claim under RICO.
(3) None of the County Defendants Are Alleged To Have Conducted or Participated in the Enterprises Affairs
18 U.S.C. section 1962(c) also requires a showing that the named Defendants conduct or participate, directly or indirectly,
in the conduct of [the] enterprises affairs.... The Supreme Court has interpreted this requirement as a narrow one. For
liability to attach one must have some part in directing the enterprises affairs. Reves v. Ernst & Young, 507 U.S. 170, 179
(1993). (Emphasis added.)
McCullough makes no allegation to suggest that any of the County Defendants had the power to direct the affairs of this
fictional enterprise.
(4) No Predicate Acts of Racketeering Are Alleged

In order to maintain a cause of action under RICO, McCullough must allege that participants in the enterprise committed at
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least two predicate acts of racketeering. Emery v. American General Finance, Inc., 71 F.3d 1343, 1349 (7th Cir. 1995); 18
U.S.C. 1961(5). Predicate acts are acts indictable under a list of offenses enumerated in 18 U.S.C. 1961(1) and
punishable as felonies. Predicate acts must be pled with particularity, rather than through vague, general allegations. Rand v.
Anaconda Electronics, 623 F. Supp. 176, 182 (ED N.Y. 1985). While the list in section 1961(1) is extensive, the vast
majority of the offenses are federal in nature. The only state crimes which may be alleged to constitute a predicate act are the
felony offenses of murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in
a controlled substance or listed chemical. 18 U.S.C. 1961(1)(A).
McCullough has failed to allege even one predicate act which would satisfy the elements of RICO - let alone the two acts
required by section 1961(5).
(5) McCullough Does Not Allege A Long-Term Pattern of Activity

RICO is concerned with long-term, on-going criminal enterprises. [P]redicate acts extending over a few weeks or months
and threatening no future criminal conduct do not satisfy that requirement. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 242 (1989). While it is not a bright line rule, the Ninth Circuit has noted that no published decision has held the
[continuity] requirement to be satisfied by a pattern of activity lasting less than a year. Religious Technology Center v.
Wollersheim, 971 F.2d 364, 366 (9th Cir. 1992).
McCullough alleges a series of incidents from his first arrest on September 12, 2001 to a fit of rage exhibited by Vergne in
February 2002. Even if the offenses alleged could be considered predicate acts, the span of five months does not reflect the
long-term criminal conduct to which RICO was intended to apply. Id. at 367.
(6) McCulloughs Only Injury Arose Directly From the Alleged Predicate Acts and Is Personal in Nature
Standing under RICO requires more than a showing of injury caused by the alleged predicate acts themselves. RICO was not
enacted to create a new remedy for garden-variety civil wrongs. McCullough must allege that he suffered a commercial
injury caused by the conducting of an enterprises affairs through a pattern of racketeering activity. Johnsen v. Rogers,
supra, at 285.
For example, a criminal organization might stifle competition by planting bombs in their rivals stores. The damages to the
stores would be direct injury and would not provide RICO standing. However, the damages caused by the ensuing monopoly
would be a commercial injury remedied by RICO.
Here, McCulloughs claimed injuries arise directly from the alleged predicate acts themselves. It is the alleged harassment,
arrest and prosecution that caused him to suffer emotionally and financially. Such injuries are properly addressed in other
causes of action brought against the proper parties.
Moreover, McCulloughs claimed damages are in the nature of personal injuries, rather than the sort of business or
property losses contemplated in RICO. Economic losses that come from injuries essentially personal in nature are not
compensable under RICO. Oscar v. University Students Co-Operative Assoc., 965 F.2d 783, 787-788 (9th Cir. 1992).
(7) The D.A. and DDA Phillips are Absolutely Immune from Liability
Although named as defendants in the caption of the complaint, the D.A. and DDA Phillips are not named in any of
McCulloughs Counts. McCullough has lumped them into his RICO Statement, and appears to be suggesting that they
were part of the alleged conspiracy by virtue of DDA Phillips prosecution of Case No. CN138222. The only factual
allegations McCullough makes about DDA Phillips is that she opposed his O/R release on January 10th, she called witnesses
at his February 4th trial, and failed to fairly and competently investigate his allegations. (Compl. 4:16-21 and 5:14-20;
RICO Statement at 4:4-13.) Each of these alleged acts falls within the absolute immunity from liability enjoyed by
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prosecutors under the RICO statute. Cullinan v. Abramson, 128 F.3d 301, 308 (6th Cir. 1997).
VI
McCULLOUGH HAS FAILED TO ALLEGE A STATE CAUSE OF ACTION AGAINST DEPUTIES NEUMANN
AND NGUYEN, DDA PHILLIPS, THE D.A. OR THE SHERIFFS DEPARTMENT
A. The Sheriffs Department and The D.A. Have No Liability As Their Employees Have None
McCullough makes no direct allegations against the Sheriffs Department or the D.A. They are defendants in this action
solely by virtue of their status as the employers of Deputies Neumann and Nguyen, and DDA Phillips. They are not liable
for an injury resulting from an act or omission of an employee ... where the employee is immune from liability. Cal. Govt
Code 815.2. The Department and the D.A. are liable only to the extent that their employees are liable. Barnhardt v.
Cabrillo Community College 76 Cal. App. 4th 818, 822 (1999).
B. Deputies Neumann and Nguyen Are Absolutely Immune From Liability For Their Testimony at McCulloughs
Trial
The only direct allegation McCullough makes against Deputies Neumann and Nguyen is that they testified at his criminal
trial and the court failed to believe them. (Compl. 5:17-20.) It is a well-established principal of both state and federal law that
a witness in a court proceeding is absolutely immune from civil liability even if the testimony they offer is perjured. Briscoe
v. Lahue, 460 U.S. 325, 335-336 (1983); Civ. Code 47(b); Moore v. Conliffe, 7 Cal. 4th 634, 638 (1994); Cullinan v.
Abramson, supra at 308 (RICO statutes did not abrogate absolute witness immunity).
To the extent that McCullough bases his claim upon the trial testimony of Deputies Neumann and Nguyen, his claims must
be dismissed.
C. McCulloughs State Law Claims Are Barred by His Failure to Comply With the Governmental Claims Act
(1) McCulloughs State Claims for Injuries Arising Out of His December 11th Arrest Are Time Barred
McCulloughs First Amended Complaint includes a copy of the notice the County sent him for his claim, which alleged
injury as a result of his December 11th arrest. (Plaintiffs First Amended Complaint, Exh. D.) His claim was rejected on
April 2, 2002. McCullough had six months until October 2, 2002 to file a complaint alleging injury as a result of his
December 11th arrest. Cal. Govt Code 945.6. The Original Complaint in this case was filed on October 4, 2002 - two days
after the limitations period ran. All of McCulloughs state claims are time-barred.
(2). McCullough Failed to File a Claim for Invasion of Privacy

Before he may sue the County of San Diego or its deputy sheriffs, McCullough must present a governmental claim which
sets forth a factual basis for the recovery sought in the Complaint. Donahue v. State of California, 178 Cal. App. 3d 795, 802
and 805 (1986). The sole factual allegations in McCulloughs claim stated that:
I was falsely arrested by two North County Deputy Sheriffs, who filed a false police report and jailed for 29 days false
imprisonment. Trial was Feb 4, 02. Judge Mills found Robert E. McCullough innocent and ruled case dismissed. (Exh. _.)
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No mention is made of facts giving rise to an invasion of privacy in McCulloughs claim. This count should be dismissed
as McCullough has failed to comply with the California Governmental Claims Act.
(3) McCullough Failed To Present a Claim Concerning the Conduct of the District Attorney or DDA Phillips
McCullough added the D.A. and DDA Phillips to this case when he filed his First Amended Complaint. While he does not
name either the D.A. or DDA Phillips in any of his Counts, he does identify them as defendants in the caption and makes
factual allegations concerning DDA Phillips conduct in the body of his complaint. They are also identified in the RICO
Statement, so one must presume that McCullough intends to seek some sort of relief for their conduct.
McCullough did not, however, present a government claim with the County of San Diego for any conduct relating to the D.A.
or DDA Phillips. He also failed to file claims for any alleged misconduct following the December 11, 2001 arrest. (Wiggs
Declaration.)
To the extent that McCullough seeks to recover from the D.A. or DDA Phillips under any of his State theories, his complaint
is barred by his failure to comply with the Claims statutes.
D. McCullough Has Failed to Allege a Cause of Action for Violation of Privacy

McCullough asserts, in his first count that the individual defendants invaded his privacy pursuant to 42 U.S.C. 227 and
California Civil Code 1708.8. Section 227 relates to automatic telephone dialing systems. Section 1708.8 appears to be
aimed at paparazzi. Since there are no allegations that McCullough was called by telephone solicitors, nor did anyone sneak
onto his property to take a photograph, his invasion of privacy count makes absolutely no sense.
E. McCulloughs Second County for False Arrest Fails to State a Claim Against The County Defendants
McCullough alleges in his second count that the individual defendants, including Deputies Neumann and Nguyen, falsely
arrested him. In the factual allegations of his First Amended Complaint, however, McCullough does not identify how they
are responsible for his false arrest. He claims that his December 11th arrest was the result of 911 calls made by Hoefgen and
Chase claiming that McCullough had violated the terms of his O/R release by contacting Chase. (Compl. 2:28-3:5.)
McCullough alleges that he was arrested, not by the Deputies, but by two security guards from the Fairgrounds. (Compl.
3:6-14.)
If the Deputies did participate in McCulloughs arrest, they were entitled to rely upon the reports made to them by the
security guards and the information received from Chase and Hoefgen. (Compl. 2:4-3:5 and 3:20-28.) They were also entitled
to rely upon the reports by the security guards that McCullough had made terrorist threats. (Compl. 5:19-23.) Nowhere in his
Complaint does McCullough allege that these Deputies were privy to the conspiracy allegedly hatched by Hoefgen, Vergne
and Chase - or that they were aware that the reported terrorist threats were not made.
An eyewitness account of a crime is sufficient to establish probable cause to detain and to arrest. Hamilton v. City of San
Diego, 217 Cal. App. 838, 844-845 (1990). The fact that the lifeguards accusations may have been fabricated does not vitiate
the deputies probable cause to arrest McCullough. Even where the factual allegations of McCulloughs First Amended
Complaint are accepted as true, and additional inferences are drawn to find that the Deputies took McCullough into custody,
the facts still show that the Sheriffs deputies had probable cause to place him under arrest. See, e.g. Id. at 843.
F. McCulloughs Third, Fourth, Fifth and Sixth Counts Are Not Separate Causes of Action, But Are Forms of
Remedy
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McCulloughs Third, Fourth, Fifth and Sixth Counts seek to recover for his Emotional Stress, Loss of Wages, Loss of
Property and Punitive Damages. These are not independent causes of action, but rather remedies that have been
improperly plead. For purposes of a complaint, a cause of action (or count) consists of the invasion of a primary right as
opposed to the particular theory of recovery asserted by a litigant, and is distinguishable from the form of relief requested.
The seeking of different kinds of relief does not establish different causes of action. Big Boy Drilling Corp. v. Rankin, 213
Cal. 646, 649 (1931). These requested remedies, on their own, fail to state a claim upon which relief may be granted.
VII
IF McCULLOUGHS COMPLAINT IS NOT DISMISSED OUTRIGHT, THEN THE PROCEEDINGS IN THIS
CASE SHOULD BE STAYED UNTIL THE PARALLEL STATE CASES ARE RESOLVED
Anyone reading the history of McCulloughs numerous lawsuits would recognize that, whenever he becomes dissatisfied
with a Judges rulings, Mr. McCullough simply files another complaint. Having become dissatisfied with the whole San
Diego County Superior Court bench, McCullough now seeks to resurrect his discarded allegations by filing a compilation of
his claims in this federal RICO Complaint. His conduct is the very essence of forum shopping.
The U.S. Supreme Court has authorized District Courts to stay federal lawsuits while related State actions are pursued to their
completion. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236
(1976). This Court has the discretion to stay proceedings while McCulloughs parallel cases are brought to completion in
the Superior Court. Colorado River, and its progeny, identified a number of factors that the Court may take into account
when considering the exercise of its discretion. Several of those factors are directly pertinent to this case, and weigh heavily
in favor of abstention.
A. Priority of Proceedings
One factor that weighs in favor of abstention is the order in which jurisdiction was obtained by the concurrent forums.
Colorado River, supra at 818. In this case, McCullough filed his numerous state lawsuits months before filing this action.
The parties and several Superior Court judges had invested considerable time in reviewing McCulloughs claims before this
Court became involved.
B. Substantial Similarity
If the actions are substantially similar, the Court may find that they are parallel proceedings and may abstain on those
grounds. Exact parallelism is not required, so long as the proceedings are substantially similar. Nakash v. Marciano, 882
F.2d 1411, 1416 (9th Cir. 1989).
Here, McCullough has named all the same parties and alleged all of the same causes of action in his federal and state cases.
His Complaints involve the same incidents - his September 12th arrest and incarceration, his December 11th arrest and
incarceration and the subsequent criminal proceedings.
C. State Proceedings Are Adequate

State court authority to provide the relief sought is a compelling factor in weighing abstention. Nakash supra, at 1416. In
Nakash, the Ninth Circuit held that the District Court properly stayed a subsequently filed federal case in a commercial
dispute that produced three lawsuits in the California courts. The Plaintiff argued that, because it sought relief under the
federal RICO statutes, the state courts did not afford it the full relief it was due. The Nakash Court noted that state courts
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have concurrent jurisdiction in RICO claims, so the state proceedings were adequate. Id.
In this case the Superior Court also has concurrent jurisdiction over McCulloughs RICO claims. McCullough apparently
knew this, as he chose to file his first RICO claims in the Superior Court.
D. Absence of Any Proceedings in Federal Court Case

In Colorado River, the Supreme Court found it significant that, in the federal case there had been no proceedings other than
the filing of the complaint. Colorado River, supra, at 820. In this case, this motion is the first proceeding after the filing of
the complaint.
E. Forum Shopping
The most compelling factor in this case is the need to discourage the practice of forum shopping. The facts in this case show
clearly that McCullough has filed his federal complaint in an attempt to find a more sympathetic judge and to avoid adverse
rulings by the state court. Nakash, 882 F.2d at 1417. This factor weighs strongly in favor of abstention. Id. The Nakash
court found that the plaintiff filed the federal complaint because it had become dissatisfied with the rulings in the Superior
Court. The Ninth Circuit affirmed the District Court because it had no interest in encouraging this practice. Id.
McCullough filed his first six state lawsuits in May and July. Demurrers had been sustained with respect to each of his
original complaints by September. In October, McCullough filed this lawsuit in federal court. Defendants find it significant
that McCullough did not file a Statement of Related Cases along with his original complaint, as required by the Local Rules.
This would have required him to identify each of his prior lawsuits and would have put this Court on notice of McCulloughs
sharp practices. Moreover, in his RICO Case Statement, McCullough makes no mention under Paragraph 5e, of the judgment
already entered against him with respect to the Public Defenders Office. Instead, McCullough claims that he has no
firsthand knowledge of any civil litigation against said Defendants other then [sic] what has been printed in the Newspaper.
(RICO Statement at 8:4-6.) One can only assume that he did not want this Court to know of the plethora of lawsuits he had
already filed in the Superior Court.
VIII
CONCLUSION
The County Defendants are not the directors of a corrupt enterprise engaged in felonious acts, which caused McCullough to
suffer the sort of business losses remedied by RICO. Deputies Neumann and Nguyen did not falsely arrest McCullough and
they are immune from liability for giving allegedly perjured testimony. DDA Phillips is also immune from liability for any of
the claims made by Plaintiff against her. The Sheriffs Department and the D.A. are not subject to liability under the RICO
statutes. Because their employees are not liable under McCulloughs state law claims, the Department and the D.A. are also
not liable. The County Defendants motion to dismiss should be granted.
In the alternative, if the Court does not dismiss McCulloughs First Amended Complaint, this proceeding should be stayed
while the numerous lawsuits filed by in the Superior Court are brought to a conclusion.
End of Document
443
Defendant Upsher-Smiths Answer to Plaintiffs Unverified

Complaint; Demand for Jury Trial
Ben TISDALE and Dawn Tisdale, Plaintiffs, v. Upsher-Smith LABORATORIES; and Does 1 through 10, inclusive,
Defendants. | United States District Court, S.D. California.
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Comment:
Ben TISDALE and Dawn Tisdale, Plaintiffs, v...., 2001 WL 34619820...

San Diego County
Ben TISDALE and Dawn Tisdale, Plaintiffs,
v.
Upsher-Smith LABORATORIES; and Does 1 through 10, inclusive, Defendants.
No. GIN 016269.
October 18, 2001.
[Assigned for all purposes to the Honorable Lisa Guy-Schall, Department 28]
Defendant Upsher-Smiths Answer to Plaintiffs Unverified Complaint; Demand for Jury Trial
Robert B. Leck III (State Bar No. 46903), Joseph M. ElGuindy (State Bar No. 173666), Leck & Associates, Attorneys at
Law, Santa Monica, CA, Attorneys for Defendant, Upsher-Smith Laboratories, Inc.
COMES NOW defendant Upsher-Smith Laboratories, Inc. (hereinafter Upsher-Smith or defendant) for itself alone, in
answering plaintiffs unverified Complaint, herein admits, denies and alleges as follows:
1. Pursuant to California Code of Civil Procedure section 431.30(d), this answering defendant generally denies each and
every material allegation of plaintiffs Complaint and further denies that plaintiffs were injured or damaged in the sum or
sums alleged, or any sum at all, by reason of any act or omission of this answering defendant.

(Failure to State a Claim)
2. Plaintiffs Complaint, and each and every cause of action stated therein, fails to state facts sufficient to constitute a claim
upon which relief can be granted.

(Failure to State a Claim for Punitive Damages)
3. Plaintiffs Complaint, and each and every cause of action stated therein, fails to state facts sufficient to support a claim for
punitive damages against this answering defendant.

(Statute of Limitations)
4. The Complaint, and each and every cause of action stated therein, is barred by the applicable statute or statutes of
limitations, including, without limitation, California Code of Civil Procedure, section 340(3), in that more than one year
445
elapsed between the accrual of plaintiffs alleged causes of action and the filing of plaintiffs Complaint.

(Comparative Fault of Plaintiff)
5. If plaintiffs suffered or sustained any injury, loss, or damage as alleged in the Complaint, the same was directly and legally
caused, in whole or in part, or contributed to or exacerbated, by the careless, reckless, negligent and unlawful conduct of
plaintiffs.

(Negligence of Others)
6. If plaintiffs suffered or sustained any injury, loss, or damage as alleged in the Complaint, the same was caused by the acts
or omissions of some person or third party over whom this answering defendant has no control, and for whom this answering
defendant is not legally responsible.

(Intervening Cause)
7. If plaintiffs suffered or sustained any injury, loss or damages as alleged in the Complaint, the same were caused, in whole
or in part, by the negligent, intentional or wrongful acts or omissions of persons or third parties other than this answering
defendant, for whose conduct this answering defendant is not legally responsible and had no reason to anticipate, and such
acts constitute independent, intervening and superseding causes.

(Breach of Warranty: No Reliance)
8. To the extent that plaintiffs rely on any theory of breach of warranty, any recovery by plaintiffs against this answering
defendant is barred in that plaintiffs did not rely upon any alleged warranty.

(Breach of Warranty: Lack of Privity/Notice)
9. To the extent that plaintiffs rely on any theory of breach of warranty, such claims are barred for lack of privity with this
answering defendant, and for failure of plaintiffs or any representative of plaintiffs to give timely notice to this answering
defendant of any alleged breach of warranty.
446

(Punitive Damages Unconstitutional)
10. Plaintiffs claim for punitive damages is in violation of and barred by the Constitutions of the United States and the State
of California, including, but not limited to, the Due Process and Equal Protection provisions contained in the Fifth and
Fourteenth Amendments of the United States Constitution.

(Compliance with Governmental Regulations)
11. The product which is the subject of this action is a prescription medical product. The federal government has preempted
the field of law applicable to the manufacture, labeling and warning of prescription medical products. This answering
defendants manufacturing, labeling and warning of the subject product was at all times in compliance with applicable federal
law. Plaintiffs causes of action against this answering defendant therefore fail to state a claim upon which relief can be
granted; such claims, if allowed, would conflict with applicable federal law and violate the Supremacy Clause of the United
States Constitution.

(Product Not Defectively Designed, Manufactured)
12. If the subject product manufactured by this answering defendant was involved in the alleged incident referred to in
plaintiffs Complaint, then, and in that event, said product was not defectively designed and/or manufactured at the time of
manufacture, and it is therefore not the ultimate liability of this answering defendant.

(Learned Intermediary Doctrine)
13. A prescription medical product manufacturer has no duty to warn patients or the general public of any risk,
contraindication, or adverse affect associated with the use of a prescription medical product. To the extent plaintiffs allege
that this answering defendant failed to provide an adequate warning to plaintiffs with respect to the use of the subject
prescription medical product, this answering defendant asserts that any obligation to warn plaintiffs was discharged through
the provision of an adequate warning including, but not limited to, its indications, contraindications, warnings, precautions,
and adverse reactions to the plaintiffs treating and prescribing physicians.

(Adequate Warnings Given)
14. At all relevant times that this answering defendant manufactured the subject product, it was reasonably safe and
reasonably fit for its intended use and this answering defendant provided proper warnings, information, and instructions,
447
pursuant to generally recognized and prevailing standards in existence at the time, as contained in the package inserts and
literature for The subject product, and therefore was not defective or unreasonably dangerous.

(Misuse of Product)
15. Plaintiffs alleged injuries and damages, if any, were proximately caused by the misuse, abuse, unintended or
unforeseeable use of the subject product, and consequently, no act or omission on the pan of this answering defendant
proximately caused any of plaintiffs claimed injuries or damages.

(Material Alteration of Product)
16. The product at issue in this case may have been altered, modified, or otherwise rendered to a form not substantially
similar to its form when it left the custody and control of this answering defendant, by others over whom this answering
defendant had no control and whose conduct this answering defendant had no reason to anticipate.

(Idiosyncratic Reaction)
17. Plaintiffs alleged injuries and damages, if any, may have been caused, in whole or in part, by an idiosyncratic reaction,
operation of nature, or act of God, or by pre-existing and/or unrelated medical, genetic, and/or environmental conditions,
diseases, or illnesses.

(Failure to Mitigate)
18. If plaintiffs suffered or sustained any damage, loss or injury as alleged in the Complaint, the same was caused, in whole
or in part, or contributed to or exacerbated, by plaintiffs failure to exercise reasonable care and diligence to mitigate their
alleged damages.

(Assumption of the Risk)
19. Plaintiffs Complaint, and each and every cause of action therein, is barred, in whole or in part, by the doctrine of
assumption of the risk.
448

(Benefits Outweigh Risks)
20. This answering defendant asserts that the benefits of the subject product outweigh the risks, if any, which may be
attendant to its use.

(Election of Credit)
21. This answering defendant reserves its right to make a written election of credit for settlements with other parties or third
persons under the applicable law. This answering defendant further demands that its fault or responsibility be compared to
other parties and third persons to this action as provided by any governing statutory or common law scheme of comparative
fault, comparative responsibility, or contribution.

(Several Liability: Economic Damages)
22. The provisions of California Civil Code, section 1431.2, are applicable to plaintiffs Complaint, and each and every cause
of action stated therein, such that the liability of each defendant shall be several only and shall not be joint.
TWENTY-SECOND AFFIRMATIVE DEFENSE

(Laches)
23. Plaintiffs Complaint, and each and every cause of action therein, is barred, in whole or in part, by the doctrine of laches.
TWENTY-THIRD AFFIRMATIVE DEFENSE

(Unclean Hands)
24. Plaintiffs Complaint, and each and every cause of action therein, is barred, in whole or in part, by the doctrine of unclean
hands.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Estoppel)
25. Plaintiffs Complaint, and each and every cause of action therein, is barred, in whole or in part, by the doctrine(s) of
estoppel and/or judicial estoppel.
449
TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Waiver)
26. Plaintiffs Complaint, and each and every cause of action therein, is barred, in whole or in part, by the doctrine of waiver.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

(No Personal Jurisdiction)
27. This court may not be able to properly exercise personal jurisdiction over this answering defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(Venue Improper)
28. Venue may not be proper in this action.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(Indispensable Parties, Real Party in Interest)
29. Plaintiffs have failed to join identifiable and indispensable parties necessary for proper adjudication of the action and/or
may not be the real party in interest who has a right to prosecute the claims asserted or who has standing to do so.
TWENTY-NINTH AFFIRMATIVE DEFENSE

(Preemption of State DecisionaI Law)
30. This answering defendant asserts that the State of Californias judicially-created definitions of manufacturing defect and
design defect and standards for determining whether there has been an actionable failure to warn are unconstitutional in that,
among other things, they are void for vagueness and an undue burden upon interstate commerce, as well as an impermissible
effort to regulate in an area that has previously been preempted by the federal government.
THIRTIETH AFFIRMATIVE DEFENSE

(Apportionment of Fault)
31. Individuals or entities, other than this answering defendant, that are co-defendants or third persons not party to this action,
450
were negligent and/or legally responsible or otherwise at fault for the damages alleged in plaintiffs Complaint. This
answering defendant therefore requests that in the event of a finding of any liability in favor of plaintiffs, or settlement or
judgment against such individuals or any defendant(s) other than this answering defendant, an apportionment of fault be
made among all parties and third persons, as permitted by Li v. Yellow Cab Co. and American Motorcycle Assn v. Superior
Court by the court or jury. This answering defendant further requests a judgment and declaration of complete or partial
indemnification and contribution against all other parties or persons in accordance with the apportionment of fault.
THIRTY-FIRST AFFIRMATIVE DEFENSE

(Restatement of Torts)
32. The product which is the subject of this action is a prescription medical product which falls within the comment k and
comment j exceptions to strict liability, as defined in the Restatement (Second) of Torts, section 402A, as well as Sections 4
and 6 of the Restatement (Third) of Torts. The subject product is therefore neither defective nor unreasonably dangerous
when properly prepared and accompanied by proper warnings and instructions for use. At all times material to plaintiffs
Complaint, the subject product was properly prepared and accompanied by proper warnings and instructions for use.
THIRTY-SECOND AFFIRMATIVE DEFENSE

(State of the Art)
33. Based on the state of scientific, medical, and technological knowledge at the time the product which is the subject of this
action was distributed, it was reasonably safe for its normal and foreseeable use at all relevant times, or in light of existing
reasonably available medical, scientific, and technological knowledge, this answering defendant could not have known of: (a)
the design characteristics, if any, that allegedly caused the injuries and damages complained of herein or the alleged danger of
such characteristics; or (b) any alternative design referred to by plaintiffs.
THIRTY-THIRD AFFIRMATIVE DEFENSE

(Conflict of Laws)
34. This answering defendant intends to rely upon, reserves its right to assert, and hereby pleads such other and related
defenses as may become available in the event of a determination that the action, or some part thereof, is governed by the
substantive law of a state other than California or a foreign country.
THIRTY-FOURTH AFFIRMATIVE DEFENSE

(Incorporation of Affirmative Defenses By Others)
35. Any affirmative defense pled or raised by other defendants in this action and not specifically pled by this answering
defendant are hereby incorporated herein to the extent that they do not conflict with this answering defendants own
affirmative defenses.
451
THIRTY-FIFTH AFFIRMATIVE DEFENSE

(Additional Defenses)
36. This answering defendant hereby reserves the right to rely upon any additional defenses to claims asserted by plaintiffs to
the extent that such defenses are supported by information developed through discovery or by evidence at trial, and hereby
reserves the right to amend its answer to assert any such defenses.
WHEREFORE, defendant prays as follows:
1. That plaintiffs take nothing by way of the Complaint on file herein;
2. That the court enter judgment in favor of this answering defendant, and against plaintiffs, dismissing plaintiffs claims in
their entirety, with prejudice;
3. That this answering defendant recover all attorneys fees and costs incurred herein; and,
4. For such other and further relief as the court deems just and proper.
DEMAND FOR JURY

Defendant hereby respectfully demands trial by jury in this matter.
End of Document
452
Memorandum of Points and Authorities in Support of Motion for

New Trial
James SWIDERSKI, Plaintiff, v. MILBERG, WEISS, BERSHAD, HYNES & LERACH, LLP, a New York limited
liability partnership; William S. Lerach, an individual; Alan Schulman, an individual; and Does 1 through 50,
inclusive, Defendants. | Superior Court of California.
Search Details
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Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
James SWIDERSKI, Plaintiff, v. MILBERG, WEISS,..., 2000 WL 35895286...

San Diego County
James SWIDERSKI, Plaintiff,
v.
MILBERG, WEISS, BERSHAD, HYNES & LERACH, LLP, a New York limited liability partnership; William S.
Lerach, an individual; Alan Schulman, an individual; and Does 1 through 50, inclusive, Defendants.
No. GIN001150.
June 12, 2000.
Date: June 29, 2000
Time: 3 p.m.
Dept: 27
Trial Date: Not Set
(Telephonic Ruling - No Appearance Required)
Memorandum of Points and Authorities in Support of Motion for New Trial
Philip Burkhardt SBN 65351, Burkhardt & Larson, 6002 El Tordo, P.O. Box 1369, Rancho Santa Fe, California 92067, (858)
756-3743, (858) 756-9805 (Fax), Attorneys for Plaintiff, James Swiderski.
I/C Judge: Thomas P. Nugent.
TABLE OF CONTENTS
Table of Authorities ...............................................................................................................................
I STATEMENT OF THE CASE .......................................................................................................
A. Summary of the Facts .....................................................................................................................
B. Summary Judgment Proceedings ................................................................................................
C. Arbitration Proceedings ..................................................................................................................
II THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR NEW TRIAL ......
A. A Motion for New Trial is a Proper Method Whereby the Court may Correct or
Vacate a Summary Judgment .............................................................................................................
B. Newly-discovered Evidence of the AAA Refusal to Provide an Economically

Viable Forum to the Plaintiff Requires the Granting of a New Trial ...................................
C. The Courts Order for Summary Judgment was Error and was Against Law .........
1. A Triable Issue of Fact Exists As to Whether the Agreement Applies to the Entire
Employment Relationship ...............................................................................................................
2. The Obligation of SWIDERSKI to Submit his Claim to Arbitration Is Effectively

10
454
Unilateral and Therefore Substantively Unconscionable .........................................................

III IN THE ALTERNATIVE THE JUDGMENT SHOULD BE MODIFIED TO
CONFIRM THAT PLAINTIFF RETAINS HIS ARBITRATION REMEDIES .............
12
IV CONCLUSION .................................................................................................................................
13
TABLE OF STATUTES
STATUTES
Code Civ. Proc., 437c ........................................................................................................................
2,10
Code Civ. Proc., 657 ..........................................................................................................................
5,7
Code Civ. Proc., 662 ..........................................................................................................................
4,12
Code Civ. Proc., 1281.2 ....................................................................................................................
CASES
Carny [Carney] v. Simmonds (1957) 49 Cal.2d 84 ....................................................................
Esbensen v. Userware Intl (1992) 11 Cal.App.4th 631 .............................................................
Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591 ........................................................
10
Green v. Del-Camp Investments, Inc. (1961) 193 Cal.App.2d 479 ......................................
Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1 ......................
Hepp v. Lockheed-Calif. Co. (1987) 87 Cal.App.3d 714 .........................................................
10
Kinney v. United Healthcare Services, Inc. (1999) 70 Cal.App.4th 1322 ............................
10,11,12
Malo v. Willis (1981) 126 Cal.App.3d 543 ...................................................................................
Maxwell v. Colburn (1980) 105 Cal.App.3d 180 ........................................................................
10
Passavanti v. Williams (1990) 225 Cal.App.3d 1602 ................................................................
PG&E v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33 ..............................
Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233 ...........................................................
Scott v. Farrar (1983) 139 Cal.App.3d 462 ...................................................................................
Taggares v. Superior Court (1998) 62 Cal.App.4th 94 ...............................................................
6,7
Turner v. Superior Court (1998) 67 Cal.App.4th 1432 ...............................................................
5,6
OTHER AUTHORITIES
2 Jefferson, Cal. Evidence Benchbook (3d ed. 1999), 32.11 et seq., pp. 675-681 .....
8,9
455
6 Witkin, Cal. Procedure (4th ed. 1997), 49(b), pp. 445-446 ................................................
6 Witkin, Cal. Procedure (4th ed. 1997), 219, p. 630 ...............................................................
10
I STATEMENT OF THE CASE

A. Summary of the Facts.
On February 3, 1997, plaintiff JAMES SWIDERSKI (SWIDERSKI) began his employment with defendant MILBERG,
WEISS, BERSHAD, HYNES & LERACH, LLP (THE FIRM) as a law clerk for an hourly wage of $20. At that time,
SWIDERSKI was told, both orally, and in writing, that his position was only temporary and was not a prelude to a
permanent position. (Exhibit 2 to Defendants Motion for Summary Judgment dated January 24, 2000) In connection with
the original employment as a law clerk, SWIDERSKI participated in an orientation process and signed an agreement
purporting to require the arbitration of various kinds of disputes. Under the arbitration agreement, the employee was required
to arbitrate those kinds of claims which lie in favor of an employee (e.g., wages, discrimination, violation of public policy,
and claims for violation of federal or state law), but THE FIRM retained full right to litigate all of the kinds of claims
typically brought by employers against employees (e.g., unfair competition and trade secret claims). (Exhibit 4 to
Defendants Motion for Summary Judgment, 2) Additionally, the employee (and only the employee) was required by the
agreement to run a gauntlet of pre-arbitration procedures. (Exhibit 4 to Defendants Motion for Summary Judgment, 5)
In January 1998, SWIDERSKI was offered and accepted a position as a full-time associate attorney with THE FIRM. He was
taken off the $20 an hour wage and given a salary of $70,000 per year. He once again went through an orientation program,
but this time, did not sign an arbitration agreement.
On April 30, 1999, SWIDERSKIS employment with THE FIRM was terminated. His Complaint alleges that the termination
was based upon an incident of approximately six months earlier in which SWIDERSKI was asked by THE FIRM to work
with Patrick R. Frega, who license to practice law had been suspended as the result of a 1996 conviction on federal criminal
charges, in an unlawful scheme to defraud an insurance carrier. SWIDERSKI chose to adhere to his ethical obligations and
informed defendant WILLIAM S. LERACH (LERACH) (the partner at THE FIRM to whom SWIDERSKI answered
directly) that he would not participate as requested. LERACH promptly removed SWIDERSKI as lead counsel on the
litigation and later participated in the decision to terminate SWIDERSKIS employment.
B. Summary Judgment Proceedings.

Rather than proceeding to move to compel arbitration under Code of Civil Procedure section 1281.2, defendants chose to
attack SWIDERSKIS Complaint using a Motion for Summary Judgment under Code of Civil Procedure section 437c.
Defendants argued that the arbitration agreement constituted a bar to any legal action brought by SWIDERSKI outside of the
arbitration forum and, in fact, even constituted a waiver of SWIDERSKIS right to arbitrate his claim in the event that the
Court were to find that the arbitration agreement acted as a bar to the current action. (See Defendants Memorandum of
Points and Authorities in Support of Motion for Summary Judgment, dated January 25, 2000, pp. 16-18) Plaintiff argued that
a triable issue of fact existed as to whether the arbitration agreement applied only to SWIDERSKIS original employment as
a law clerk or whether it applied to his subsequent employment as an associate attorney as well. Alternatively, SWIDERSKI
argued that even if otherwise applicable, the arbitration agreement was unenforceable by reason of unconscionability.
The Court found that the arbitration agreement did apply to all aspects of the employment relationship and that it was not
unconscionable. In granting the Summary Judgment Motion, however, the Court did not expressly rule on defendants
contention that plaintiff SWIDERSKI is barred not only from proceeding with the litigation, but with an arbitration hearing
pursuant to the arbitration agreement. Although the American Arbitration Association (the AAA) rules expressly provide
456
that no judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the parties
right to arbitrate, (AAA Rules, Exhibit 3 to Decl. of Carl A. Larson, served and filed herewith, rule 37a) defendants contend
that SWIDERSKI is without a remedy of any sort. Plaintiff sought to have that issue clarified in the Judgment by way of
scheduling an ex parte hearing on the matter, but the Court entered Judgment as proposed by defendants before the date of
the ex parte hearing.
C. Arbitration Proceedings.
After obtaining the Courts ruling on the Summary Judgment Motion on April 13, 2000, plaintiff sought to protect his rights
under the arbitration agreement which contained a provision purporting to require the initiation of an arbitration proceeding
within one year of the termination of employment. SWIDERSKI filed a Demand for Arbitration in order to afford himself
procedural protection. Because SWIDERSKI could not afford the costs of private dispute resolution through the AAA, he
sought relief from those expenses by filing an Affidavit of Hardship. On May 25, 2000, that application was granted only to
the limited extent of deferring one-half of the administrative fees. None of the fees relating to the arbitrators compensation
(which were expected to cost approximately $6000 for SWIDERSKI alone) were deferred or waived.
SWIDERSKI now files this Motion for New Trial and asks the Court to reevaluate its Summary Judgment Order in light of
the new evidence relating to the denial of SWIDERSKIS hardship application to the AAA. SWIDERSKI also points out that
the Court erred in granting the Summary Judgment Motion originally because the Court appears to have misapplied the parol
evidence rule, and further appears to have overlooked the essential unfairness inherent in the arbitration agreement.
Alternatively, SWIDERSKI asks the Court under Code of Civil Procedure section 662 to modify the Judgment to confirm
that plaintiff retains the right to submit his claim to binding arbitration.
II THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR NEW TRIAL

A. A Motion for New Trial is a Proper Method Whereby the Court may Correct or Vacate a Summary Judgment.
The trial court may correct a judicial error in summary judgment in response to a motion for new trial. (Passavanti v.
Williams (1990) 225 Cal.App.3d 1602, 1606; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1238; 6 Witkin, Cal.
Procedure (4th ed. 1997), Proceedings Without Trial, 49(b), pp. 445-446.) As stated in Green v. Del-Camp Investments,
Inc. (1961) 193 Cal.App.2d 479, 481
It may seem semantically anomalous to speak of a new trial following summary judgment, which is a
determination that there shall be no trial at all. In light, however, of the rule that a motion for a new trial
lies after judgment on the pleadings (Carny [Carney] v. Simmonds [1957] 49 Cal.2d 84) the procedure
appears proper.
The use of a motion for new trial to bring newly-discovered evidence to the Courts attention was expressly approved in Scott
v. Farrar (1983) 139 Cal. App.3d 462. In Scott, the Trial Court entered summary judgment for the defendant. The plaintiff
brought new evidence before the Court by way of a motion for new trial to show that potential liability of the defendant did
in fact exist. The Trial Court denied the motion for new trial and the Court of Appeal reversed ruling that the motion for new
trial should have been granted with the effect of setting aside the summary judgment.
Even in the absence of new evidence, a motion for new trial can be used as a vehicle for the Court to reconsider a ruling
resulting in summary judgment. (Malo v. Willis (1981) 126 Cal.App.3d 543.) By this Motion for New Trial plaintiff seeks to
offer the Court a procedural vehicle to consider evidence which only came into existence after the Court made its ruling
granting summary judgment, and also to afford the Court an opportunity to review the rulings underlying the summary
judgment or, in the alternative, to clarify those rulings in order that the plaintiff not be deprived of a vehicle for the just
adjudication of his claim. This Motion for New Trial is set concurrently with plaintiffs Motion to stay the existing arbitration
proceedings pending finality of the Judgment in this case.
457
B. Newly-discovered Evidence of the AAA Refusal to Provide an Economically Viable Forum to the Plaintiff Requires
the Granting of a New Trial.
Newly-discovered evidence, material for the party making the application, which he could not, with reasonable diligence,
have discovered and produced at the trial, is a recognized statutory ground for the granting of a motion for new trial. (Code
Civ. Proc., 657, 4.) It is evident that the decision of the AAA denying SWIDERSKI an economically viable forum was
not made known to SWIDERSKI or his counsel until May 30, 2000. Therefore, it would have been impossible to bring the
decision of the AAA to the Courts attention at or before the summary judgment hearing itself. It was the Courts ruling on
the Motion for Summary Judgment which triggered the protective filing of the Demand for Arbitration and the related
hardship application.
The only remaining question, therefore, is whether the AAAS decision rejecting all but an insignificant portion of
SWIDERSKIS application for fee deferral or waiver is material. The materiality of the AAAS decision is established by
Turner v. Superior Court (1998) 67 Cal.App.4th 1432, 1440. Turner addresses but does not decide the question of whether an
indigent party can be compelled to participate in binding arbitration. The decision is based upon the ruling of the Fourth
District Court of Appeal in Taggares v. Superior Court (1998) 62 Cal. App.4th 94. Taggares in turn arises out of a Trial
Court ruling by the North County Branch of the Superior Court of San Diego County (the Honorable Lisa Guy-Schall)
appointing a discovery referee in a case involving an indigent plaintiff. The Taggares Court rejected the defendants
argument that counsel for an indigent plaintiff should be required to underwrite the cost of privately compensated decision
makers. (Id. at 103.) The Court observed:
In the final analysis, the proposition that a court may impose the cost of reference on an impoverished
clients attorney raises equal protection, due process and fundamental fairness concerns in that it punishes
poor litigants - those unable to afford retainers and hourly fees - by barring meaningful access to the
courts through discouraging the availability of contingent fee counsel.
Seven months later, the Second District Court of Appeal addressed the problem of indigency in relationship to mandatory
binding arbitration agreements. The Court noted that the factual situation in Taggares, supra, was distinguishable because the
plaintiff had never signed an agreement submitting to extra-judicial procedures. However, the Court also noted,
Of course, we do see the relevance of Taggares to the fundamental issue of fees in compelled
arbitrations. Upon a proper showing of indigency or extreme hardship and a concomitant showing that
her chosen party arbitrator has a legitimate basis for his fees, and of the absence of an acceptable
available alternative party arbitrator, or upon a showing that, as to her, the [arbitration] contract does not
afford the required minimum levels of integrity, [the plaintiff] might have the right to shift all or some
portion of her party arbitrators fees to [the defendant] or, in the alternative, to avoid the arbitration
provision and proceed instead with the jury trial she wants. (Turner, supra, 67 Cal.App.4th at 1440.)
The Court concluded, however, that the record did not show the lack of available alternatives within the framework of the
Kaiser arbitration system. In this case, however, SWIDERSKI has made his application to the AAA and been rejected. The
arbitration agreement upon which the summary judgment is based specifically requires the use of the AAA forum and the
Employment Dispute Resolution Rules. (Exhibit 4 to Defendants Motion for Summary Judgment, 2) No alternative dispute
system is recognized or authorized. The rules specifically require the petitioner to bear certain administrative expenses and
require that both parties bear all other expenses equally unless the arbitrator directs otherwise in the award. (National Rules
for the Resolution of Employment Disputes [Exhibit 3 to Decl. of Carl A. Larson, served and filed herewith], rule 39) There
is no provision for an a priori reallocation of fees to one party.1 The AAA Rules themselves require the payment of
arbitrators fees at rates which are simply out of reach for the plaintiff in this case.
Even if the Rules were to contain a provision allowing for some a priori reallocation of fees in the case of
indigency of one party, such a cost shifting would appear to be problematical in light of the holding in
Taggares v. Superior Court, supra, which ironically arose out of an order by Judge Guy-Schall for the
solvent party to bear all of the costs of the alternative dispute resolution process. It was the solvent
458
partys request for writ relief which brought the matter to the attention of the Court of Appeal. By
granting the writ sought by the solvent defendants, the Fourth District Court of Appeal rejected the Trial
Courts proposed solution to the indigency problem which would have required the solvent party to
bear all of the costs of the process. (62 Cal. App.4th at 98-99.) Moreover, the specter of requiring an
indigent party to appear before a tribunal which is funded by his adversary fails to give the necessary
appearance of integrity to support confidence in the fairness of the process.
C. The Courts Order for Summary Judgment was Error and was Against Law.
Code of Civil Procedure section 657, paragraphs 6 and 7 provide a remedy where a decision of the trial court is against law
or represents an error in law. SWIDERSKI will avoid the temptation herein to reargue the summary judgment proceeding
in its totality, but wishes to use the opportunity afforded by statute to direct the Courts attention to some particular respects
in which SWIDERSKI believes the Courts decision granting the Summary Judgment Motion to be erroneous.
1. A Triable Issue of Fact Exists as to Whether the Agreement Applies to the Entire Employment Relationship.
In its original tentative ruling of March 30, 2000, the Court addressed the issue regarding the scope of the arbitration
agreement in the following terms:
THE INTERPRETATION OF THE ARBITRATION AGREEMENT IS A QUESTION OF LAW FOR THE
COURT. THE AGREEMENT IS CLEAR AND UNAMBIGUOUS ON ITS FACE THAT THE AGREEMENT
APPLIES TO THE PARTIES ENTIRE EMPLOYMENT RELATIONSHIP. THE COURT THEREFORE FINDS
AS A MATTER OF LAW THAT THERE WAS A SINGLE EMPLOYMENT AGREEMENT AND PLAINTIFF
WAS SIMPLY PROMOTED FROM A PART TIME LAW CLERK POSITION TO A FULL TIME ASSOCIATE
POSITION.
At oral argument, counsel for SWIDERSKI attempted to make the point that the mere fact that the agreement appeared to be
unambiguous on its face did not preclude the admission of evidence which could be used to support an interpretation
apparently at odds with the unambiguous wording of an instrument. The Courts attention was invited to 2 Jefferson,
California Evidence Benchbook (3d ed. 1999), sections 32.11, et seq., pages 675-681. Counsel also drew the Courts
attention to various cases including Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1. Upon
submission of the matter the Court confirmed its tentative ruling stating that, ... The determination of whether an agreement
is intended by the parties as a final, complete and exclusive statement of their agreement is a question of law to be determined
by the court. (Citing Hayter Trucking, Inc., supra, at 14.)
The Courts finding that the arbitration agreement in question is fully integrated does not operate to exclude evidence which
supports SWIDERSKIS interpretation of the agreement that it was intended to apply only in the context of his employment
as a law clerk. SWIDERSKI does not offer his evidence to contradict or vary the terms of the agreement. Rather, he offers his
evidence to interpret or explain the meaning of a written instrument... [even though in the Courts view the instrument
contains] seemingly plain and unambiguous language. (Jefferson, supra, 32.11 and 32.12, p. 675.) (Emphasis added)
Even where a document is fully integrated, parol evidence is always admissible to interpret the written agreement.
(Esbensen v. Userware Intl (1992) 11 Cal.App.4th 631, 637.) The same rule is explained in Hayter Trucking, supra, at 15:
Application of the parol evidence rule to exclude a collateral oral agreement raises a question of law to be
determined by the court.... Application of the rule involves a two-part analysis. First, was the writing
intended to be an integration, i.e., a complete and final expression of the parties agreement, precluding
any evidence of collateral agreements; second, is the agreement susceptible of the meaning contended by
the party offering the evidence? Put another way, if a writing is deemed integrated, extrinsic evidence is
admissible only if it is relevant to prove a meaning to which the language of the instrument is reasonably
susceptible. [Citations] Thus, parol evidence may be admitted to explain the meaning urged is one to
459
which the written contract term is reasonably susceptible or when the contract is ambiguous. Parol
evidence cannot be admitted to show intention independent of an unambiguous written instrument.
[Citations] (Emphasis added)
In granting summary judgment, the Court appears to have terminated its analysis at the first step. The second step, Is the
agreement susceptible of the meaning contended by the party offering the evidence? was never reached. Even if the
arbitration agreement had lacked ambiguity on its face, the Court would still be required to consider extrinsic evidence to
determine what meaning the parties intended by a word or phrase. (PG&E v. G. W. Thomas Drayage & Rigging Co. (1968)
69 Cal.2d 33; Jefferson, supra, 32.18, p. 677.) The agreement in this case refers to an employment relationship (Exhibit 4
to Defendants Motion for Summary Judgment, 2) but does not specify which employment relationship the agreement
relates to.
The very fact that the arbitration agreement was executed in connection with SWIDERSKIS employment as a law clerk,
when he had been advised both orally and in writing that he should not expect any employment beyond that status, raises a
triable issue of fact as to the interpretation of the arbitration agreement. A plethora of other facts also support SWIDERSKIS
interpretation that the employment agreement was not intended to apply to a subsequent employment relationship as an
attorney, which relationship was not even contemplated by the parties at the time the arbitration agreement was executed.
Among those facts are the existence of a second orientation regimen which did not result in the execution of an arbitration
agreement, a series of documents showing a date of hire as a law clerk on February 3, 1997(Exhibits 16, 17, and 18 to Decl.
of James Swiderski in Opposition to Motion for Summary Judgment filed March 2, 2000), and a contrasting set of documents
showing a hire date as a lawyer of January 1, 1998. (See, e.g., Exhibits 19 and 21 to Decl. of James Swiderski in
Opposition to Motion for Summary Judgment)
This Courts conclusion that as a matter of law there was only one employment relationship within the contemplation of the
arbitration agreement is erroneous. There are, rather, two separate viable interpretations of the arbitration agreement: one
expansive in nature, and the other, limited in nature. The evidence, consisting of SWIDERSKIS testimony and Exhibits 19
and 21 to the Declaration of James Swiderski in Opposition to Motion for Summary Judgment are admissible to interpret the
arbitration agreement. Because the evidence is admissible on the issue of interpretation, and because the evidence permits the
inference that SWIDERKIS interpretation of the arbitration agreement is correct, summary judgment must be denied. In
determining a summary judgment motion, the Court must consider all of the evidence set forth in the papers, and deny
summary judgment where more than one inference can be drawn from the evidence. (Code Civ. Proc., 437c, subd. (c); see
Hepp v. Lockheed-Calif. Co. (1987) 87 CalApp.3d 714, 717; 6 Witkin, Cal. Procedure (4th ed. 1997), 219, p. 630.) The trial
court is required to consider all inference reasonably deducible from the evidence submitted. (Maxwell v. Colburn (1980) 105
Cal.App.3d 180, 185.) The Court has no power to weigh the evidence and choose which inference it believes to be correct.
Where contrary inferences exist, a triable issue of fact arises and a motion for summary judgment must be denied. (Gigax v.
Ralston Purina Co. (1982) 136 Cal.App.3d 591.)
Therefore, the Courts determination that there was only one possible interpretation of the agreement is erroneous. Error has
occurred whether the Court has excluded contrary evidence by existence of the integration clause found in the arbitration
agreement, or whether the Court has considered and rejected conflicting evidence. If the Court has not considered
SWIDERSKIS evidence which is offered to interpret the arbitration agreement, it should have done so. If the Court rejected
such evidence, it should not have done so. In any event, SWIDERSKI is entitled to have the evidence which supports his
interpretation of the agreement (an interpretation which does not contradict the language of the agreement itself) to be
determined in the context of a full evidentiary showing, not on summary judgment.
2. The Obligation of SWIDERKSI to Submit his Claim to Arbitration is Effectively Unilateral and Therefore
Substantively Unconscionable.
In ruling on the Summary Judgment Motion the Court also determined that there was no triable issue of fact as to the
procedural unconscionability of the contract. In so ruling, the Court failed to recognize the inherent relationship between
procedural unconscionability, and substantive unconscionability. In analyzing the unconscionability issue, the Court
must view the two aspects of the document in tandem (Kinney v. United Healthcare Services, Inc. (1999) 70 Cal.App.4th
460
1322, 1329), not in isolation as was done in this case.

The purported arbitration agreement in this case could hardly be more draconian in its operation. While purporting to be
bilateral, it in reality only operates against the employee. All of the claims covered by the arbitration agreement just happen
to be those claims that would be brought by an employee. With the exception of workers compensation claims (which have
their own adjudicatory system), the employer retains the full right to litigate those types of cases in which it would seek relief
against an employee. (Exhibit 4 to Defendants Motion for Summary Judgment, 2) Moreover, the agreement sets forth a
gauntlet of procedural prerequisites to arbitration which apply only to the employee, and not to the employer in any respect.
The employee is required to set forth a detailed analysis of his claim at various times and the employer can simply disregard
the claim on each occasion with impunity. Such a process requires the employee to divulge important tactical information
about his position, but enables the employer to withhold even the most basic information. (Exhibit 4 to Defendants Motion
for Summary Judgment, 5) As shown by the Declaration of James Swiderski in Opposition to Motion for Summary
Judgment, SWIDERSKIS most basic requests for information were denied. (Decl. of James Swiderski in Opposition to
Motion for Summary Judgment, 18-20) Therefore, plaintiff has not only raised a triable issue of fact as to the substantive
unconscionability of purported arbitration agreement, such unconscionability has been established beyond a reasonable
doubt.
Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties
at the time. (Kinney, supra, at 1329.) The evidence is clear in this case that SWIDERSKI was a new lawyer applying for a
position with one of the countys largest law firms. He was presented with a detailed standard form agreement which he was
required to sign as part of the orientation process. (Decl. of James Swiderski in Opposition to Motion for Summary
Judgment, 7) There is no way that SWIDERSKI could be expected to digest the procedural complexities of the arbitration
agreement in the limited amount of time he was afforded to review the document during the orientation process. Accordingly,
the evidence raises at least a triable issue of fact with respect to the procedural unconscionability of the arbitration agreement
in this case, especially in light of the extraordinarily high level of substantive unconscionability presented by the terms of the
document itself. (Kinney, supra, at 1332.)
III IN THE ALTERNATIVE, THE JUDGMENT SHOULD BE MODIFIED TO CONFIRM THAT PLAINTIFF
RETAINS HIS ARBITRATION REMEDIES
Defendants Motion for Summary Judgment adamantly contends not only that SWIDERSKI has no judicial remedy, but that
he has no arbitration remedy either. (Defendants Memo, of Points and Authorities in Support of Motion for Summary
Judgment, pp. 16-18) Defendants continue to assert that SWIDERSKI waived his right to arbitration. (Exhibit 6 to Decl. of
Philip Burkhardt, served and filed herewith) Plaintiffs counsel scheduled a ex parte appearance in an attempt to address this
matter before the entry of Judgment, but the Court signed the Judgment without affording plaintiffs counsel the opportunity
to be heard on the question. Accordingly, plaintiff seeks clarification of the Courts ruling in this regard pursuant to Code of
Civil Procedure section 662 which specifically allows the Court a wide range of remedies, including the ability to modify the
Judgment in whole or in part.
If it be the intention of the Court to deny SWIDERSKI a remedy of any of sort in this case, that intention should be expressly
set forth in order that a full and expeditious review of the Courts rulings may be had. If, on the other hand, it be the intention
of the Court to require SWIDERSKI to arbitrate his claims under what the Court views as an applicable and enforceable
arbitration agreement, the ruling should reflect that intention.
As the case now procedurally stands, defendants have made the argument on summary judgment that plaintiff has no remedy
whatsoever. The Courts granting of the Motion for Summary Judgment arguably creates an inference that the Court has
agreed with that position. Therefore, plaintiff asks, as an alternative to an order for a new trial, that the Court clarify its ruling
to insure that plaintiff is not deprived of a forum for the resolution of his claim and that the arbitration agreement effectively
incorporates the National Rules for the Resolution of Employment Disputes, particularly, rule 37a which provides, No
proceeding by a party relating to the subject of this arbitration shall be deemed a waiver of the partys right to arbitrate. To
leave the record ambiguous on that issue simply invites more procedural chaos. If defendants are able to convince an
arbitrator that the summary judgment in this case precludes an arbitration remedy, plaintiff will then be required to prosecute
two separate appeals, one from the summary judgment, and one from yet another judgment based on an arbitrators
461
determination that SWIDERSKI retains no procedural rights of any type.
IV CONCLUSION
The procedural context of this case, when viewed in its totality, shows quite clearly that plaintiff SWIDERSKI should not be
deprived of his constitutional right to a trial by jury. The arbitration system set forth in the purported arbitration agreement in
this case provides no true remedy at all for the plaintiff. Rather than resorting to a publicly-funded system of justice, plaintiff
will be deprived of a remedy because he is currently in a state of financial distress, which state was caused by the defendants
in retaliation against plaintiff for having attempted to uphold the legislatively and judicially stated public policies of this
state. The injustice of such a result is compounded by the fact that the arbitration agreement being forced upon him was never
intended to apply to his employment relationship as an attorney, and the fact that the arbitration agreement itself is so
blatantly one-sided as to shock the conscience of any impartial observer.
For each of the foregoing reasons, plaintiff JAMES SWIDERSKI respectfully requests that the Court grant his Motion for
New Trial and vacate its prior Order Granting Summary Judgment in this Case.
DATED: June 12, 2000
BURKHARDT & LARSON
By
PHILIP BURKHARDT
Attornes for Plaintiff
JAMES SWIDERSKI
End of Document
462
Special Verdict
William ZAMORA, Plaintiff, v. ESCONDIDO UNION SCHOOL DISTRICT; Nicolas M. Retana, an individual,
Defendants. | Superior Court of California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
William ZAMORA, Plaintiff, v. ESCONDIDO UNION..., 2000 WL 35379401...
2000 WL 35379401 (Cal.Superior) (Verdict, Agreement and Settlement)

North County Branch
San Diego County
William ZAMORA, Plaintiff,
v.
ESCONDIDO UNION SCHOOL DISTRICT; Nicolas M. Retana, an individual, Defendants.
No. 81401.
February 17, 1999.
May 23, 2000.
Special Verdict
I/C Judge: Lisa Guy-Schall.
[GENERAL CIVIL CASE]

ACTION DATE: 2/17/99
DEPT. 28
We, the jury in the above-entitled action, find the following special verdict on the questions submitted to us:
Question No. 1: Was Defendant Escondido Union School District negligent?
Answer yes or no.
Answer: Yes
If you answer Question No. 1 no go to Question No. 7.
If you answer Question No. 1 yes then answer the next question.
Question No. 2: Was the negligence of Defendant Escondido Union School District a cause of injury or damage to the
Plaintiff?
Answer yes or no.
Answer: Yes
Question No. 3: What do you find to be the total amount of damages, including economic and non-economic damages, if
464
any, suffered by Plaintiff caused by the negligence of the Escondido Union School District?
Answer:
(A)
Economic Damages:
$15,000
(B)
Non-Economic Damages:
$ 0,000
Total:
$15,000
If you answer Question No. 3 no damage go to Question No. 7.

If you answer Question No. 3 with an amount of money then answer the next question.
Question No. 4: Was the Plaintiff negligent?
Answer yes or no.
Answer: Yes
Question No. 5: Was the negligence of the Plaintiff a cause of injury or damage to such Plaintiff?
Answer yes or no.
Answer: Yes
Question No. 6: Assuming that 100% represents the total negligence which was the cause of Plaintiffs injury or damage,
what percentage of this 100% is due to the comparative negligence of the Plaintiff and what percentage is due to the
negligence of Defendant Escondido Union School District?
Answer:
To Plaintiff
50%
To Defendant Escondido Union School District
50%
Total
100 %
Go to Question No. 7.
465
Question No. 7: Did Defendant Dr. Nicols Retana engage in conduct which invaded Plaintiffs privacy interests?
Answer yes or no.
Answer: Yes
If you answer Question No. 7 no sign and return this verdict.
Question No. 8: Did Defendant Dr. Nicols Retana disclose a fact upon which Plaintiff had a reasonable expectation of
privacy?
Answer yes or no.
Answer: Yes
Question No. 9: Did the conduct of Defendant Dr. Nicols Retana constitute a serious invasion of privacy to Plaintiff?
Answer yes or no.
Answer: Yes
Question No. 10: Do you find that Plaintiff suffered any damage as a result of Defendants conduct in disclosing private
information?
Answer yes or no.
Answer: Yes
Question No. 11: What do you find to be the total amount of damages, including economic and non-economic damages, if
any, suffered by Plaintiff caused by the disclosure of the felony conviction by Defendant Dr. Nicols Retana?
Answer:
(a)
Economic Damages
$240,000.00
(b)
Non-Economic Damages
$0
Total
$240,000.00
466
Dated: May 23, 2000
<<signature>>
Signature of Foreperson
End of Document
467
Memorandum of Points and Authorities in Support of Defendant

Miller, Boyko and Bells Motion to Dismiss Complaint Pursuant to
F.R.C.P. 12(b)(6)
Albert OROURKE, Plaintiff, v. Ellen PECK, et al., Defendants. | United States District Court, S.D. California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Albert OROURKE, Plaintiff, v. Ellen PECK, et al., Defendants., 1997 WL 33829393 (1997)

Albert OROURKE, Plaintiff,
v.
Ellen PECK, et al., Defendants.
No. 97-CV-1223-BTM(POR).
July 24, 1997.
Date: November 3, 1997.
Ctrm.: 15
Trial Date: None
Memorandum of Points and Authorities in Support of Defendant Miller, Boyko and Bells Motion to Dismiss
Complaint Pursuant to F.R.C.P. 12(b)(6)
Miller, Boyko and Bell, A.P.C., 550 West B Street, Suite 400, San Diego, California 92101-3599 ^ (619) 235-4040, Roy
Morrow Bell, ESQ. (State Bar No. 060555), James W. Stubblefield, ESQ. (State Bar No. 164284), Attorneys for Defendant
Miller, Boyko and Bell
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................................................................................
ii
I. INTRODUCTION .........................................................................................................................................................................
A. Factual History ..............................................................................................................................................................................
B. Plaintiffs Status with the Courts .............................................................................................................................................
II. ARGUMENT .................................................................................................................................................................................
A. MB&BS Motion to Dismiss Should Be Granted Because Plaintiff Fails to State a Claim against MB&B
upon which Relief Can Be Granted ..............................................................................................................................................
1. Plaintiff Has Not Stated a Claim for Violation of RICO .................................................................................................
a. Plaintiff Does Not Identify an Enterprise ..............................................................................................................................
b. Plaintiff Fails to Identify a Violation of 1962 ..................................................................................................................
c. Plaintiff Does Not Allege a Racketeering Activity ............................................................................................................
d. Plaintiff Has Not Alleged Mail or Wire Fraud ....................................................................................................................
2. Plaintiff Has Not Stated a Cause of Action Against MB&B for Violation of 42 U.S.C. 1983 .......................
3. Plaintiff Has Not Stated a Cause of Action Against MB&B Under the Civil Rights Act of 1964 ...................
B. Plaintiff Has Not Stated a Cause of Action for Declaratory or Injunctive Relief ..................................................
10
III. CONCLUSION ............................................................................................................................................................................
10
469
Cases
Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388 (9th Cir. 1988) ................................................
Arndt v. Prudential Bache Securities, Inc., 603 F.Supp. 674 (S.D.Cal. 1984) .............................................
Blu-J, Inc. v. Kemper C.P.A. Group, 916 F.2d 637 (11th Cir. 1990) ..............................................................
8, 9
Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357 (10th Cir. 1989) ....................
H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893 (1989) ...............................
Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183 (5th Cir. 1990) ..............................................................
8, 9
Lopez v. Dean Witter Reynolds, Inc., 591 F.Supp. 581 (N.D.Cal. 1984) .......................................................
6, 8
McMurtry v. Brasfield, 654 F.Supp. 1222 (E.D.Va. 1987) .................................................................................
Medallion Television Enterprises, Inc. v. Selec TV of California, Inc., 833 F.2d 1360 (9th Cir.
1987) ......................................................................................................................................................................................
Reynolds v. East Dyer Development Co., 882 F.2d 1249 (7th Cir. 1989) .....................................................
Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) ..........................
Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275 ....................................................................
United Energy Owners v. United Energy Management, 837 F.2d 356 (9th Cir. 1988) ............................
United States v. Walgern, 885 F.2d 1417 (9th Cir. 1989) ...................................................................................
Wade v. Hopper, 993 F.2d 1246 (9th Cir. 1993) ....................................................................................................
Statutes
18 U.S.C. 1341 and 1343 ..........................................................................................................................................
18 U.S.C. 1961(1) ..........................................................................................................................................................
6, 8
18 U.S.C. 1961(1)(B) ...................................................................................................................................................
18 U.S.C. 1961(4) ..........................................................................................................................................................
18 U.S.C. 1962 ................................................................................................................................................................
Federal Rule of Civil Procedure 9(b) ..........................................................................................................................
Federal Rule of Civil Procedure 12(b) .......................................................................................................................
I. INTRODUCTION
470
A. Factual History
Plaintiff, Albert ORourke, now has two lawsuits pending against Miller, Bonk and Bell (BABB) in the United States
District Court for the Southern District of California, both alleging violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. 1961 et seq., but based upon entirely different allegations.1 For the Court to
understand plaintiffs vexatious and harassing nature and the limited involvement MB&B has had with plaintiff, it is
necessary to set forth a brief history of how plaintiff and MB&B became acquainted.
1
Plaintiffs other lawsuit is captioned ORourke v. Kipperman, et al., Case No. 96- CV-1442-JM(POR). MB&B has filed a motion
to dismiss in that action, which is scheduled to be heard on October 20, 1997.
MB&Bs former client, the America3 Foundation (America3), is a nonprofit foundation organized for the purpose of
promoting amateur sailing in America and competing in various international sailing events, including the prestigious
Americas Cup. In 1991, America3 entered into a sublease agreement with Bay City Marine, Inc. (Bay City), to lease
property located at 4960 North Harbor Drive, San Diego, California (the compound), to serve as the site for America3s
preparation for the 1992 Americas Cup competition. At the time of the sublease, America3 agreed to construct certain
improvements on the compound, which Bay City agreed to purchase for $600,000 at the end of the sublease. That obligation
was secured by a deed of trust encumbering the Bay City leasehold with the Port District.
At the end of American sublease, America3 vacated the compound. At that time, Bay City failed to pay for the
improvements constructed by America3, and, as a result and to protect its rights and the value of its collateral, America3
commenced an action for judicial foreclosure of Bay Citys leasehold with the Port in the District Court for the Southern
District of California (Case No. 93-81 OGT(CM)). Pursuant to America3s deed of trust, on June 24, 1993, a receiver,
Richard Kipperman (Kipperman), was appointed and empowered to manage the compound. In April, 1 994, with the
approval of the receiver, Bay City and America3 entered into a second sublease of the compound, to run through June, 1995,
the end of the 1995 Americas Cup competition.
Prior to taking possession of the compound, America3 discovered that a Ralph Hughes, Jr. (Hughes) unlawfully occupied
a portion of the compound where Hughes kept his schooner, Sea Runner. On April 8, 1994, Kipperman, through his
attorneys, Ferrette & Slater, initiated an action for unlawful detainer, forcible detainer and forcible entry against ORourke
and Hughes, in San Diego Municipal Court, seeking to remove Hughes and ORourke from the compound (Case No.
025114). Defendants sought to remove the matter to federal court. On April 21, 1994, the Honorable Gordon Thompson
summarily remanded the case to Municipal Court, finding no basis for the exercise of federal jurisdiction. Default
judgment was entered against ORourke and Hughes on April 29, 1994, and both were evicted from the compound on May 1
3, 1994. On that date, and pursuant to a writ of possession, the Sea Runner was towed from the compound, and other
tangible property belonging to Hughes was removed. ORourke appealed to the Appellate Division of the Superior Court,
which, on November 18, 1994, unanimously affirmed the default judgment. ORourke also appealed Judge Thompsons
remand of the case, which the Ninth Circuit dismissed on the grounds that a remand order based on lack of federal
jurisdiction is not reviewable.
On November 19, 1994, ORourke filed with the Municipal Court a motion for declaratory and equitable relief. On
December 28, 1994, the Honorable Alvin E. Green wrote a 16-page opinion outlining in detail ORourkes vexatious history.
In his Notice of Written Ruling, Judge Green states that
[T]his case has consumed the time of one federal judge, eight state judges, and one commissioner. There have been hearings
held in the Municipal, Superior and federal courts. There have been appeals filed and heard. The following judges have all
handled this file: J.M. Bloom, Lillian Lim, Alvin Green, Tim Thomas, Wayne Peterson, Frederick Link, Richard Murphy,
Lisa Guy-Schall, federal Judge Gordon Thompson, and Commissioner Carol Frausto.
In his order, Judge Green found that the default judgment entered against ORourke on April 29, 1994,
includes ail the property located at 4960 North Harbor Drive. Furthermore, America3 has exclusive right
to possession of the described premises pursuant to its lease with Bay City Marine, Inc ... Messrs. Hughes
471
and ORourke and the Sea Runner have no legal right to possession of any portion of the premises
located at 4960 North Harbor Drive, including all piers located in the property. Messrs. Hughes and
ORourke and the Sea Runner have no right to use or dock at any pier located on the property located at
4960 North Harbor Drive.
(See Exhibit 1 to Declaration of James W. Stubblefield, filed herewith.) In spite of Judge Greens ruling, on March 15,
1996, plaintiff fifed a complaint against numerous defendants, including MB&B, in San Diego County Superior Court, Case
No. 698209, alleging, among other things, conversion, fraud, abuse of process, conspiracy and interference with prospective
economic advantage. This complaint was based upon the same allegations contained in plaintiffs motion for declaratory and
equitable relief heard by Judge Green. On June 17, 1996, the court granted MB&Bs demurrer to plaintiffs complaint, with
leave to amend. On June 26, 1996, plaintiff filed a first amended complaint. On August 16, 1996, MB&Bs demurrer to
plaintiffs first amended complaint was sustained without leave to amend as to all causes of action, except plaintiffs fraud
and conspiracy causes of action. Plaintiff filed his second amended complaint on October 24, 1996, and on January 3, 1997,
MB&Bs demurrer to plaintiffs second amended complaint was sustained without leave to amend.
On August 18, 1996, plaintiff filed his first action against MB&B in the United States District Court for the Southern District
of California [Case No. 96-cv- 1442-JM(POR), still pending at the time this motion is filed] containing the same allegations
already ruled on by the state court. Another defendant in that action, the San Diego Unified Port District, filed a motion to
dismiss in that action which was granted by the court, but plaintiff was given 45 days to amend his complaint. On June 18,
1997, plaintiff filed an amended complaint claiming a RICO violation, based upon the same factual allegations as contained
in his original complaint and in the state court pleadings. (See Exhibit 2 to Stubblefield Declaration.) In his amended
complaint, plaintiff did not name the Port District as a defendant.
This history describes in its entirety MB&Bs association with plaintiff. MB&B is not familiar with and had absolutely no
involvement in any of the events which form the basis for plaintiffs complaint filed in this Court. While MB&B is named
twice in the caption of the complaint, it is not identified even once in the body of th complaint. For the reasons set forth
herein, MB&B requests this Court to grant its motion to dismiss the complaint.
B. Plaintiffs Status with the Courts

Because courts are generally lenient and understanding of persons who represent themselves in litigation, it is important for
this Court to know plaintiffs status with both the State Bar and the state courts. On at least two occasions, in cases unrelated
to plaintiffs alleged dispute with MB&B, plaintiff has been declared a vexatious litigant by judges in San Diego County
Superior Court, the most recent ruling occurring on November 8, 1996. There is currently in place a prefiling order against
plaintiff, which prevents him from filing any lawsuit in any state court without posting a bond and obtaining prior leave of
court. (See Exhibits 3 and 4 attached to Stubblefield Declaration.)
Further, it is important for this Court to understand that even though plaintiff represents himself as an attorney in the caption
on this complaint, he was involuntarily placed on inactive status by the State Bar and is no longer licensed to practice law
in this state. (See Exhibit 5 to Stubblefield Declaration.) Plaintiff is a law school graduate and former member of the
California Bar.
Plaintiffs vexatious nature is evident from the litany of federal and state case numbers he recites in his own complaint in this
matter. He has at least twice been found to be a vexatious litigant and may no longer file an action in any state court without
posting a bond and obtaining prior leave. Having finally exhausted the patience of the state courts, plaintiff now escalates his
vendetta in this Court, his last remaining forum. For the reasons set forth below, plaintiffs complaint must be dismissed.
II. ARGUMENT
472
A. MB&BS Motion to Dismiss Should Be Granted Because Plaintiff Fails to State a Claim against MB&B upon
which Relief Can Be Granted
F.R.C.P. 12(b) states, in part:
Every defense ... to claims for relief ... shall be asserted in the responsive pleadings thereto, if one is required, except that the
following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter; (2)
lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process;
(6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.
1. Plaintiff Has Not Stated a Claim for Violation of RICO

Plaintiff alleges that MB&B has violated the RICO Act which provides a private civil action to recover damages for injuries
by reason of a violation of its substantive provisions. Sedima S.P.R.L v. Imrex Co., Inc., 473 U.S. 479, 481, 105 S.Ct.
3275, 3277. To survive a 12(b)(6) motion, a civil RICO claim must allege conduct (of an interstate enterprise through a
pattern of racketeering activity) which violates one or more of the three sections of 18 U.S.C. 1962. Sedima S.P.R.L, 473
U.S. at 496, 105 S.Ct. at 3285; United Energy Owners v. United Energy Management, 837 F.2d 356, 362 (9th Cir. 1988). An
enterprise includes any individual, partnership, corporation, association or other legal entity ... 18 U.S.C. 1961(4).
An enterprise whose conduct forms the basis for a RICO claim cannot also be a RICO defendant. Lopez v. Dean Witter
Reynolds, Inc., 591 F.Supp. 581, 585 (N.D.Cal. 1 984); see also, McMurtry v. Brasfield, 654 F.Supp. 1222, 1226 (E.D.Va.
1987) (a law firm cannot be both a defendant and the alleged RICO enterprise.)
Plaintiff must also allege at least two racketeering activities that are related and that amount to or threaten the likelihood of
continued criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 2895-2896 (1989);
United States v. Walgren, 885 F.2d 1417, 1424 (9th Cir. 1989). Racketeering activities are defined in 18 U.S.C. 1961(1) as:
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing
in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under state Saw
and punishable by imprisonment for more than one year; and
any act which is indictable under any one of several United States code sections cited in 1961(1)(B). The complaint must
allege sufficient facts to give the defendant, and the Court, clear notice of the factual basis for the racketeering activities.
Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362 (10th Cir. 1989). The allegations of these
predicate acts, especially if based in fraud, must be specific as to time, place and the nature of the act. Alan Neuman
Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988).
Title 18 U.S.C. 1962 identifies those activities that are violations of RICO:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the
meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any such income or the proceeds of
such income, in acquisition of any interest in, or the establishment or operation of any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce ....
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to
acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of
which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises
affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
473
To allege a violation of RICO, plaintiff must specify which paragraph of 1962 has been violated. Reynolds v. East Dyer
Development Co., 882 F.2d 1249, 1251 (7th Cir. 1989); Arndt v. Prudential Bache Securities, Inc., 603 F.Supp. 674, 676
(S.D.Cal. 1984).
a. Plaintiff Does Not Identify an Enterprise

Plaintiffs complaint fails to satisfy a single element required to successfully plead a RICO cause of action. First, plaintiff
fails to identify an enterprise whose conduct violated the RICO act. Without an identified enterprise, plaintiffs RICO
claim cannot survive. Lopez, 591 F.Supp. at 589.
b. Plaintiff Fails to Identify a Violation of 1962.

Second, plaintiff does not identify the section of RICO allegedly violated by MB&B. Civil liability under RICO is premised
on violation of one or more of the provisions of 1962. Medallion Television Enterprises, Inc. v. SelecTV of California, Inc.,
833 F.2d 1360, 1362 (9th Cir. 1987). Plaintiff does not allege that MB&B gained income from a pattern of racketeering
activity or through the collection of an unlawful debt and used that income in any activity affecting interstate or foreign
commerce in violation of 1962(a); that MB&B has acquired any interest in an enterprise engaged in activities affecting
interstate or foreign commerce through a pattern of racketeering activity or collection of an unlawful debt in violation of
1962(b); or that MB&B conducts its business practices through a pattern of racketeering activities or collection of unlawful
debt in violation of 1962(c). Because plaintiff has not alleged a violation of RICO by MB&B under 1962(a),(b) or (c), he
cannot allege a conspiracy under 1962(d).
c. Plaintiff Does Not Allege a Racketeering Activity

Third, plaintiff does not allege that MB&B participated in a pattern of racketeering activities as defined in 18 U.S.C.
1961(1). In fact, MB&B is not mentioned once in the body of the complaint. It is impossible from reading the complaint for
the Court or MB&B to determine what MB&B is alleged to have done.
d. Plaintiff Has Not Properly Alleged Mail or Wire Fraud

Although mail and wire fraud are racketeering activities, as defined by RICO, plaintiff has failed to allege mail or wire fraud
with the particularity required by Federal Rule of Civil Procedure 9(b). Lopez, 591 F.Supp. at 585 (where the alleged pattern
of racketeering activities is based on fraud, the pleading of the fraudulent acts is governed by Federal Rule of Civil Procedure
9(b).) Mail or wire fraud requires a scheme to defraud by means of false pretenses, which include representations or
promises, and the use of the mails or interstate wire communications in furtherance of the scheme. 18 U.S.C. 1341 and
1343; Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 191 (5th Cir. 1990). Fraudulent intent is a necessary element to
establish mail or wire fraud. Blu-J, Inc. v. Kemper C.P.A. Group, 916 F.2d 637, 643 (11th Cir. 1990). Allegations of mail or
wire fraud must identify the time, place, content and method of communicating each fraud, plus the role of each defendant in
each fraudulent communication. Schreiber Distributing Co. v. Serv-Welt Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986);
Wade v. Hopper, 993 F.2d 1246, 1250 (9th Cir. 1993). Legal conclusions, unsupported by sufficient factual detail, are
inadequate to state a RICO claim. Wade, 993 F.2d at 1250.
Plaintiff fails to identify a single activity which could possibly be construed as a communication, promise or representation
from MB&B by mail or wire. Plaintiff fails to identify the scheme to defraud which is a required element of a mail or
wire fraud claim. Howell Hydrocarbons, Inc., 897 F.2d at 191. Even more fatal to plaintiffs RICO claim is that nowhere in
his complaint does he allege fraudulent intent by MB&B to commit wire or mail fraud. Blu-J, Inc., 916 F.2d at 643. Plaintiff
has not stated a cause of action against MB&B for violation of RICO.
474
2. Plaintiff Has Not Stated a Cause of Action Against MB&B for Violation of 42 U.S.C. 1983
As with the RICO cause of action, plaintiff does not allege any conduct by MB&B in violation of 42 U.S.C. 1983. As a
private law firm, MB&B cannot be liable for violation of 1983, which imposes liability on [e]very person who, under
color of any statute, ordinance, regulation, custom, or usage ..., subjects, or causes to be subjected, any citizen ... to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws ... United States General, Inc. v.
Schroeder, 400 F.Supp. 713, 717 (E.D. Wis. 1975).
To state a cause of action under 1983, plaintiff must allege that MB&B acted under color of state law or authority in a
manner which deprived him of a right secured by the Constitution and laws of the United States. Sykes v. State of California,
497 F.2d 197, 200 (9th Cir. 1974). Plaintiff does not allege any conduct by MB&B, much less conduct under color of state
law or authority. Plaintiff has not stated a claim against MB&B for violation of 42 U.S.C. 1983.
3. Plaintiff Has Not Stated a Cause of Action Against MB&B Under the Civil Rights Act of 1964
Plaintiffs third cause action alleges violation of the Civil Rights Act of 1964. Plaintiff does not allege any conduct by
MB&B in violation of that act. Accordingly, plaintiff has failed to state a claim against MB&B.
B. Plaintiff Has Not Stated a Cause of Action for Declaratory or Injunctive Relief
Plaintiffs fourth and fifth causes of action seek declaratory and injunctive relief. It is impossible from plaintiffs complaint to
determine what relief he is really asking for. Because plaintiff has failed to allege any conduct by MB&B anywhere in his
complaint, plaintiffs fourth and fifth causes of action fail to state any claims against MB&B.
III. CONCLUSION
Enough is enough! Since Judge Greens ruling, one more state court judge and now two federal judges have been lured into
plaintiffs tangled web. MB&B has expended countless hours just trying to decipher plaintiffs allegations, not to mention the
hours of preparation to challenge plaintiffs hopelessly incomprehensible pleadings. Plaintiff has not stated any facts to
establish a single required element for any cause of action against MB&B. It appears as though plaintiff threw MB&B
into the caption of the complaint as an afterthought for the sole purpose of further harassing MB&B. For the reasons set forth
above, defendant MB&B respectfully asks this Court to grant its motion to dismiss plaintiffs complaint, with prejudice.
DATED: July 23, 1997.
MILLER, BOYKO & BELL
ROY MORROW BELL
JAMES W. STUBBLEFIELD
Attorneys for Defendant MILLER, BOYKO
AND BELL
End of Document
475
Plaintiffs Trial Brief

Joseph MORRIS, Plaintiff, v. COUNTY OF SAN DIEGO, Sheriffs Department; Juan Jasso; Juan Oropeza and Does
1 to 30, Defendants. | Superior Court of California.
Search Details
Search Query:
Jurisdiction:
California
Delivery Details
Date:
Delivered By:
Client ID:
1111
Comment:
Joseph MORRIS, Plaintiff, v. COUNTY OF SAN DIEGO,..., 1996 WL 33689058...

San Diego County
Joseph MORRIS, Plaintiff,
v.
COUNTY OF SAN DIEGO, Sheriffs Department; Juan Jasso; Juan Oropeza and Does 1 to 30, Defendants.
Case No. N70400.
August 21, 1996.
Plaintiffs Trial Brief
CASES
Brummett v. County of Sacramento, 21 C al.3d 880 (1978) ...............
Buchanan v. City of Newport Beach, 50 Cal. App.3d 221 (1975) ....
18
City of Sacramento v. Superior Court, 131 C a .A pp.3d 395

(1982) .....................................................................................................................
6, 10
City of San Jose v. Superior Court, 166 Cal. App.3d 197 (1985) ....
City of Santee v. County of San Diego, 211 C al. A pp.3d 1006,

1015 (1989) ..........................................................................................................
10
Davidson v. City of Westminster, 32 C al.3d 695 (1977) .....................
Ducey v. Argo Sales Co., 25 C al.3d 707, 715 (1979) ..........................
18
Green v. City of Livermore, 117 C a .A pp.3d 82, 90 (1981) .............
7, 18
Hill v. The People Ex Rel. Department of Transportation, 91

Cal.App.3d 429 (1979) ....................................................................................
17
Johnson v. State of California, 69 Cal.2d 782 ...........................................
Low v. City of Sacramento, 7 Cal.App.3d 826, 834 (1970) ................
18
Mann v. State of California, 70 C a l. A pp .3d 773 ..............................
Quelvog v. City of Long Beach, 6 Cal.App.3d 584 (1970) ..................
7, 8
Stark v. City of Los Angeles, 168 Cal.App.3d 276 (1985) ...................
Tarasoff v. Regents of University of California, 17 C al.3d 425,

435 (1976) ............................................................................................................
477
Thomas v. City of Richmond, 9 C al.4th 1154 (1995) ...........................
5, 6
Thomas v. City of Richmond, 21 Cal.App.4th 765, 774-775 (affd.

by Supreme Court, 9 Cal.4th 1154) .............................................................
6, 7
Vehicle Code
17001 ...................................................................................................................
4, 5
17004 ...................................................................................................................
17004.7 ...............................................................................................................
21055 ...................................................................................................................
7, 13, 14
21056 ...................................................................................................................
7, 13
22349 ...................................................................................................................
13, 16
22350 ...................................................................................................................
27315 ...................................................................................................................
19
Government Code
815(a) ..................................................................................................................
815.2 ....................................................................................................................
5, 10
830.(b)(c) ...........................................................................................................
18
835 ........................................................................................................................
17
845.8 ....................................................................................................................
Restatement 2d, Torts

321 ........................................................................................................................
323 ........................................................................................................................
324A ....................................................................................................................
Evidence Code
623 ........................................................................................................................
19
669(b) ..................................................................................................................
14
MISC. AUTHORITY
BAJI 3.76 .............................................................................................................
11, 14
BAJI 11.55 ...........................................................................................................
18
478
San Diego County Sheriffs Department Policy

5.1 ...........................................................................................................................
7, 8, 13, 14, 15
2.1.35 .....................................................................................................................
8, 13, 14
FACTS
On April 3, 1994 at 5:13 A.M., plaintiff Joseph Morris was delivering newspapers in San Marcos. He was driving his pickup
truck on eastbound Mission Road and was about to make a left hand turn across westbound Mission into Shermans Market.
He was accompanied by his brother Charles Morris in the passenger seat. The speed limit on Mission Road at this location
(and at all locations relevant to this case) was posted at 45 mph. Just before plaintiff began his turn he saw a single vehicle
approaching him on westbound Mission but observed that it was too far down the street to be a threat to him. Unbeknownst
to plaintiff, said vehicle, driven by Juan Jasso, was traveling towards him at 87 mph, or nearly twice the speed limit. At the
time, Mr. Jasso was being chased by San Diego County Sheriffs Deputy Kevin Price at high speed without benefit of lights
or siren. During the chase sequence, which covered about 1.65 miles, Deputy Kevin Price reached speeds of 75 mph in the
same 45 mph zone. Said high speed pursuit without lights and siren by Deputy Price is admitted by defendant County of San
Diego and Deputy Price to be a violation of mandatory policy and procedures of the Sheriffs Department. In addition, said
high speed pursuit without lights and siren is a violation of the maximum speed law, Vehicle Code 22349, the basic speed
law, Vehicle Code22350 and the Vehicle Code sections applicable to emergency vehicle operations (21055, 21056).
The chase sequence began at Mission and Mulberry when Mr. Jasso drove through this intersection at a high rate of speed.
Attached as Exhibit 1 is an aerial photograph of Mission Road, with landmarks identified, showing the entire route covered
during this chase sequence. Deputy Price was drinking coffee in the parking lot of the 7-11 at this intersection at the time.
Deputy Price immediately entered his vehicle and gave chase. There was an eyewitness to portions of the chase sequence,
Dan Sullivan, who was a reserve Oceanside police officer. Mr. Sullivan estimated Mr. Jassos speed as he approached the
intersection of Mission and Mulberry at 70 -75 mph. He also indicated that he felt that it was evident from observing Mr.
Jassos operation of his vehicle that he posed a clear threat to public safety. The chase proceeded on eastbound Mission to
Woodland where Mr. Jasso stopped for a traffic signal and apparently waited for a green arrow to make a U-turn back onto
west Mission. Both witness Dan Sullivan and Deputy Price himself confirm that the Jasso vehicle and Deputy Prices vehicle
were well within visual range of each other at that time. Mr. Sullivans testimony will demonstrate that Deputy Price closed
to within several hundred yards of Juan Jasso while Mr. Jasso waited to make his U-turn. After making his U-turn, Mr. Jasso
proceeded westbound on Mission and passed directly by Deputy Price going in the opposite direction. The two vehicles were
separated only by the width of the median as they passed but Deputy Price made no attempt at that time to activate his Code 3
equipment or otherwise signal Mr. Jasso to stop. Deputy Price admitted to facts in his deposition indicating that he has
activated his Code 3 equipment (lights and siren) to stop vehicles on over 1,000 occasions. Of those occasions, less than five
vehicles attempted to evade pursuit and none succeeded. Deputy Price further agrees that if he had activated his Code 3
equipment as required by mandatory Sheriffs Department procedures, Juan Jasso probably would have stopped or slowed
down about one mile before the point of the collision. See Price deposition page 76. However, Deputy Price chose not to do
this because he was attempting to get a clock or pace on the Jasso vehicle to support a speeding ticket.
Because Deputy Price ignored mandatory Code 3 procedures, Juan Jasso did not stop or slow down to the speed limit and
continued driving on westbound Mission towards plaintiff. According to the Sheriffs Departments calculations in the police
report, Mr. Jasso was traveling at 87 mph when he entered his locked wheel skid (both parties accident reconstruction
experts agree with this analysis). Mr. Jasso then left 161 feet of skid marks before impacting the right side of plaintiffs
pickup truck. Jassos speed at collision was 65 mph and the force of the impact was sufficient that plaintiffs pickup truck
rolled and was thrown backwards down the road over 100 feet. Plaintiff was ejected and suffered leg injuries requiring
amputation below the knee eight weeks later.
Plaintiff had taken his seat belt off because he was going to exit his truck at Shermans Market to speak with a co-worker.
479
However, as discussed below, plaintiff was expressly exempted from the provisions of the mandatory seat belt law because
he was delivering newspapers. Plaintiffs brother Charles Morris had his seat belt on and remained in the passenger seat but
suffered unstable fractures of his cervical vertebrae in two locations, requiring immediate surgical fusion.
In the police report pertaining to this incident, all three Sheriffs deputies involved in the investigation concluded that Mr.
Jasso had surrendered his right of way due to excessive speed and that Joseph Morris bore no responsibility for the collision.
The County has now retained an accident reconstruction expert to attempt to impeach this admission. Mr. Jasso was found to
have a blood alcohol level of .07 several hours after the collision which extrapolates to a .11--.13 at 5:13 A.M.
PROCEDURAL BACKGROUND
The instant case was filed in the East County Branch of the Superior Court. Defendant Juan Jasso was served in Folsom
Prison and his default entered. Defendant Juan Oropeza (owner of the car driven by Juan Jasso) was never located and will be
dismissed. The County defendants answered. Following the completion of the initial round of discovery, defendants moved
for summary judgment. On December 1, 1995, Judge Harrison Hollywood denied defendants motion, finding triable issues
of material fact to exist. Defendants then moved to change venue to the North County Superior Court and said motion was
granted. These same defendants then renewed their motion for summary judgment. On May 13, 1996, Judge Lisa Guy-Schall
denied defendants motion on similar grounds. Judge Hollywoods written ruling is attached hereto as Exhibit 2 and Judge
Lisa Guy-Schalls ruling is attached as Exhibit 3. Judge Lisa Guy-Schalls written ruling indicates that if Deputy Price were
chasing Jasso, then he owed plaintiff a duty of care, which may include use of lights and siren. Judge Hollywood in his oral
ruling on the matter on December 1, 1995 made the following comment:
...if you analogize to your (Mr. Brewsters) example that sure, there is no duty there, but this is different because hes
(Deputy Price) really chasing. (parenthetical supplied) Court transcript, December 1, 1993, page 3.
LAW
I
DEFENDANTS ARE LIABLE FOR THE NEGLIGENCE OF THEIR POLICE OFFICERS IN THE OPERATION
OF THEIR PATROL CARS
Defendants have repeatedly argued that they have immunity or lack a duty. This is incorrect. Government Code 815(a) does
not apply to this case because public entities are liable for their employees negligent operation of motor vehicles.
Government Code 815 does not apply to this case because the liability of the County for its police officers is set forth by
statute. By its own terms, 815 does not apply where liability is otherwise provided by statute. Vehicle Code 17001, titled
Liability of a public entity provides as follows:
PROCEDURAL BACKGROUND
The instant case was filed in the East County Branch of the Superior Court. Defendant Juan Jasso was served in Folsom
Prison and his default entered. Defendant Juan Oropeza (owner of the car driven by Juan Jasso) was never located and will be
dismissed. The County defendants answered. Following the completion of the initial round of discovery, defendants moved
for summary judgment. On December 1, 1995, Judge Harrison Hollywood denied defendants motion, finding triable issues
of material fact to exist. Defendants then moved to change venue to the North County Superior Court and said motion was
granted. These same defendants then renewed their motion for summary judgment. On May 13, 1996, Judge Lisa Guy-Schall
denied defendants motion on similar grounds. Judge Hollywoods written ruling is attached hereto as Exhibit 2 and Judge
Lisa Guy-Schalls ruling is attached as Exhibit 3. Judge Lisa Guy-Schalls written ruling indicates that if Deputy Price were
480
chasing Jasso, then he owed plaintiff a duty of care, which may include use of lights and siren. Judge Hollywood in his oral
ruling on the matter on December 1, 1995 made the following comment:
...if you analogize to your (Mr. Brewsters) example that sure, there is no duty there, but this is different because hes
(Deputy Price) really chasing. (parenthetical supplied) Court transcript, December 1, 1993, page 3.
LAW
I
DEFENDANTS ARE LIABLE FOR THE NEGLIGENCE OF THEIR POLICE OFFICERS IN THE OPERATION
OF THEIR PATROL CARS
Defendants have repeatedly argued that they have immunity or lack a duty. This is incorrect. Government Code 815(a) does
not apply to this case because public entities are liable for their employees negligent operation of motor vehicles.
Government Code 815 does not apply to this case because the liability of the County for its police officers is set forth by
statute. By its own terms, 815 does not apply where liability is otherwise provided by statute. Vehicle Code 17001, titled
Liability of a public entity provides as follows:
A public entity is liable for death or injury to person or property proximately caused by a negligent or
wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting
within the scope of his employment.
Vehicle Code 17004 exempts public employees from liability for civil damages resulting from the operation of an
authorized emergency vehicle when in the immediate pursuit of an actual or suspected violator of the law ... Thus, by
express operation of law, Deputy Price is immune from suit but the County of San Diego and the Sheriffs Department may
be liable if his negligent or wrongful act or omission in the operation of his patrol car was a proximate (legal) cause of
plaintiffs injuries.
The interaction of these statutes with regard to the issue of immunity has been recently clarified by the California Supreme
Court in Thomas v. Richmond, 9 Cal.4th 1154 (1995). There, the Court noted that the instant argument being presented by the
County of San Diego that the 815.2 immunity overcomes the Vehicle Code 17001 liability had been rejected by the
Supreme Court in its previous decision in Brummett v. County of Sacramento, 21 Cal.3d 880 (1978), where the Court,
... rejected the claim that Government Code section 815.2, subdivision (b), similarly immunized the county. We found that
the public entity liability was otherwise provided by statute, namely Vehicle Code section 17001. See 9 Cal.4th at 1158.
Thus, the argument being made by the County of San Diego in the instant case was rejected 18 years ago by the California
Supreme Court. In Thomas, supra, the City attempted to rely on the immunity provided by Government Code 845.8 because
the 815.2 immunity had been rejected in Brummett. Section 845.8 provides that neither a public entity or public employee is
liable for (b) any injury caused by ... (2) an escaping or an escaped arrested person or (3) a person resisting arrest. In
Thomas, the Supreme Court also rejected the 845.8 immunity that is predicated on the operation of a motor vehicle by a
public employee under Vehicle Code 17001. It is notable that the Thomas case also involved a police pursuit.
Throughout this lawsuit, defendants have repeatedly cited cases involving duty to warn or control the conduct of another
and/or good samaritan cases rather than cases involving high speed police chases. Moreover, defendants continue to confuse
the distinction between nonfeasance and misfeasance cases. Virtually all of defendants cases are nonfeasance cases, in which
the law is reluctant to impose liability. See Tarasoff v. Regents of University of California, 17 Cal.3d 425,435 (1976),
(footnote 5). The instant case and most of the negligent police chase cases are misfeasance cases, where active negligence
against the police is alleged.
It is self-evident that the reason for defendants failure to cite cases on point is that those which are on point do not support
481
their position. The cases closest on point to the instant case are City of Sacramento v. Superior Court, 131 Cal.App.3d 395
(1982); Thomas v. City of Richmond, 9 Cal.4th 1154 (1995); Stark v. City of Los Angeles, 168 Cal.App.3d 276 (1985) and
City of San Jose v. Superior Court, 166 Cal.App.3d 695 (1985). The City of Sacramento, Stark, and San Jose cases, supra, all
involve police chases in which the courts held that the police agency could be liable to the injured victim despite the fact that
the tortfeasor who struck the plaintiff in each case was the individual being chased by the police. Both Stark and City of
Sacramento, supra, involved police chases with no Code 3 equipment.
The language of the Court of Appeals decision in Thomas v. City of Richmond, 22 Cal.App.4th 765, 774-775 (affd. by
Supreme Court, 9 Cal.4th 1154) is instructive on these issues:
In addition, the case law has interpreted Kisbey and Government Code section 845.8 narrowly, finding
that section 845.8 does not immunize a public entity from liability for police negligence even when the
person attempting to avoid arrest is the direct cause of the plaintiffs injuries. Thus, in City of San Jose v.
Superior Court (1985) 166 Cal.App.3d 695 [212 Cal.Rptr. 661], the court held that the public entity
might be held liable for any negligence in engaging in a high-speed chase which ended when the pursued
vehicle crashed into plaintiffs car. In Stark v. City of Los Angeles (1985) 168 Cal.App.3d 276 [214
Cal.Rptr. 216], liability was imposed on the public entity for police officer negligence in failing to
activate a siren or otherwise warn persons that a high-speed chase was occurring, although, again, the
plaintiff was injured when the suspects vehicle struck the plaintiffs vehicle, 22 Cal.App.4th at 774,
775.1
Because Deputy Price never initiated a legal pursuit of Jasso with lights and siren, defendants concede they are not entitled to the
pursuit immunity of California Vehicle Code 17004.7. See Point II, page 4 of defendants opposition to plaintiffs motion for
summary adjudication. A highlighted copy of said page is lodged herewith as Exhibit 4. See also Cantrell deposition page 45, lines
20-27.
The appellate court in Thomas further held that, In all situations the issue is simply whether the police acted reasonably
under the circumstances. 22 Cal.App.4th at 777.
III
DEPUTY PRICE WAS UNDER A MANDATORY DUTY UNDER BOTH THE CALIFORNIA VEHICLE CODE
AND CONTROLLING SHERIFFS DEPARTMENT POLICIES AND PROCEDURES TO AVOID HIGH SPEED
PURSUITS WITHOUT LIGHTS AND SIREN
Deputy Price was under a mandatory duty from several different controlling sources to avoid exactly the type of conduct in
which he was engaged at the time of the incident. Vehicle Code 21055 provides that the driver of an authorized emergency
vehicle is exempt from various rules of the road including speed limits under all of the following conditions:
(a) If the vehicle ... or is being used in the immediate pursuit of an actual or suspected violator of the
law... (b) If the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle
displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians.
(emphasis supplied)
Attached hereto as Exhibit 5 are relevant portions of the San Diego Sheriffs Department policy number 5.1 dated 1/31/90
concerning emergency vehicle operations. Section 5.1.1 of said procedure notes that it is intended to establish guidelines to
allow officers to respond to field situations while complying with the requirements set forth in Vehicle Code 21055 for
emergency vehicle operation. In (b) of 5.1.3 the mandatory nature of the use of lights and siren for Code 3 operation is
noted as follows, The requirements set forth in section 21055 and 21056 CVC, relating to the use of red/blue lights and
siren, must be followed.(emphasis in original) It is well established that regulations of local police departments have the
482
force of law. See Green v. City of Livermore, 117 Cal.App.3d 82, 90 (1981). Subsection (c) of 5.1.3 governs all other
responses and notes in mandatory fashion that When proceeding to a call, other than Code 3, officers shall obey all traffic
laws and not use flashing lights ... (emphasis in original) Moreover attached as Exhibit 5A is Sheriffs Department Policy
2.1.35 which provides in pertinent part:
Officers shall operate official vehicles in a careful and prudent manner, and shall obey all laws of the
state and all departmental orders pertaining to such operation.
Thus, by the express terms of both the California Vehicle Code and the controlling Sheriffs Department policies in effect on
the date of this incident, Deputy Price was under a mandatory duty to either comply with the Vehicle Code provisions
regarding speed or to utilize his Code 3 equipment. He chose to do neither. Deputy Prices speed of 75 mph in a 45 mph zone
violates the basic speed law in California (Vehicle Code 22350), the posted speed limit of 45 mph and the maximum speed
law of 55 mph (Vehicle Code 22349). Moreover, it is evident from the Countys own discovery responses that they do not
even claim to have any policy which would authorize a Sheriffs Deputy to drive 75 mph in a 45 mph zone without activating
flashing red lights or siren.
IV
ASIDE FROM HIS MANDATORY DUTIES OUTLINED ABOVE, DEPUTY PRICE HAD COMMON LAW
DUTIES TO PLAINTIFF BECAUSE HIS UNMARKED PURSUIT OF JUAN JASSO INCREASED THE RISK TO
PLAINTIFF
Defendants have repeatedly cited Davidson v. City of Westminster, 32 Cal.3d 197 (1977), for the general proposition that
police may have no duty to warn foreseeable victims of crime. While Davidson correctly states this principle, defendants
ignore the fact that Davidson also sets forth the well established rule that police officers may be liable when they increase the
risk to a victim. Thus, in Davidson, the court found that police officers staking out a laundromat were not liable to a victim
inside who was assaulted by a criminal known to the police officers. The Davidson Court emphasized that the conduct of the
police officers Did not change the risk which would have existed in their absence. 32 Cal.3d at 208. The Davidson Court
discussed various cases therein including Johnson v. State of California, 69 Cal.2d 782 and Mann v. State of California, 70
Cal.App.3d 773. The Davidson Court noted that in Mann the state was liable because it placed the victim in danger, holding
that In Mann, the police officers conduct contributed to, increased or changed the risk which would have otherwise
existed. 32 Cal.3d at 208.
In the instant case, the conduct of Deputy Price clearly increased the risk to both plaintiff and everyone else in the path of this
unmarked pursuit. Deputy Price came upon a situation in which one car was traveling at an unsafe speed of 70-75 mph in a
45 mph zone. Instead of immediately attempting to stop this vehicle, Deputy Price began chasing this vehicle at speeds up to
75 mph in his own car without using his mandatory Code 3 equipment. The testimony of plaintiffs police procedures expert,
Don Reierson will confirm that such an unmarked pursuit increases the risk to the public. Common sense dictates that Deputy
Price effectively doubled the risk to the public by doubling the number of cars traveling at 30 mph over the speed limit.
Clearly, everyone in the path of this pursuit was in the zone of danger presented thereby. It is purely fortuitous that plaintiff
turned left in front of Mr. Jasso rather than turning in front of Deputy Price. It is well established at common law that despite
the absence of a preexisting duty or relationship, one who undertakes to act and increases the risk to another, has a duty to
said other person to exercise due care. These concepts of duty are addressed in the Restatement 2d, Torts in the following
sections.
323
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary
for the protection of the others person or things, is subject to liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such
harm... (emphasis supplied) See also 324 A.
321
483
(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing
physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
These sections have been adopted and followed by California courts. See City of Santee v. County of San Diego, 211
Cal.App.3d 1006, 1015 (1989). In City of Santee, the court summarized its holding concerning good Samaritans as follows:
A good Samaritan must, of course, use due care while engaged in the discreet undertaking for which he volunteered, and
nonfeasance in that situation can result in liability. id at 1018.
The above duties were discussed in the factually analogous case of City of Sacramento v. Superior Court, 131 Cal.App.3d
395 (1982). There, as here, a police officer was engaged in an unmarked high speed pursuit of a speeding vehicle. The court
began its discussion by rejecting the argument made by the County of San Diego in the instant case that Government Code
815.2 provided immunity. The court then noted that the driver of an emergency vehicle who fails to engage his Code 3
equipment as required may be liable for violating the rules of the road as follows:
Where the driver of an emergency vehicle fails to activate his red light, and where necessary his siren, he is not exempt from
the rules of the road even though he may be engaged in a proper emergency function, and negligence may be based upon the
violation of the rules of the road. 131 Cal.App.3d at 403.
The City of Sacramento court then proceeded to distinguish between the immunity for the discretionary decision to pursue
and conducting that pursuit in a negligent manner by not using the required Code 3 equipment. id at 404. The court further
held that:
A jury could well conclude that the officers are negligent in failing to flash the red lights or sound their siren in order to alert
other innocent parties to the approaching danger created by their pursuit. This is so because the officers are under a duty to
exercise due care during a chase for the safety of innocent persons that may be injured. id at 405.
Apparently, the plaintiffs in City of Sacramento failed to produce any statistical evidence showing the likelihood that the
suspect would have stopped had he seen flashing red lights of a police car behind him. Plaintiff in the instant case will submit
such evidence.
V
PLAINTIFF WILL PRODUCE SUFFICIENT EVIDENCE TO PRESENT AN ISSUE OF FACT FOR THE JURYS
DETERMINATION AS TO WHETHER DEPUTY PRICES NEGLIGENT FAILURE TO ACTIVATE HIS CODE 3
EQUIPMENT WAS A LEGAL CAUSE OF PLAINTIFFS INJURIES
Legal cause is defined as conduct which is a substantial factor in bringing about the injury to plaintiff. See BAJI 3.76. The
primary argument being made by plaintiff in this regard is that if Deputy Price had complied with his mandatory duties to
activate his Code 3 equipment once engaged in a high speed pursuit, the evidence shows that Juan Jasso likely would have
stopped or slowed down to the speed limit long before the point where the accident occurred. Unlike the plaintiff in City of
Sacramento, supra, the instant plaintiff will submit specific evidence to support this proposition. This evidence is in the form
of statistics, photographs, eyewitness testimony, expert testimony and Deputy Prices own admissions. The parties police
procedures experts and all police officers who will testify in this case will confirm that activating ones Code 3 equipment
nearly always causes a speeding vehicle to slow and stop. Deputy Price himself admitted to facts indicating that in his year
and a half of patrol experience, he has activated his Code 3 equipment over 1,000 times to stop vehicles he suspected of
moving violations. Of these stops of cars suspected of moving violations using Code 3 equipment, less than 1% have tried to
evade pursuit once he has activated his Code 3 equipment. In fact, Deputy Price testified to the fact that this has happened
less than five times, which would be less than 1/2 of 1%. Finally, and most importantly, Deputy Price himself admitted that if
he had complied with his mandatory duty of activating his Code 3 equipment, Juan Jasso probably would have stopped or
484
slowed down, as follows:

A. You are asking if he would have stopped, had he seen my lights?
Q. Yes. Based upon your prior experience with well under one percent of people ever trying to elude you once you turn on
your Code 3, he probably would have stopped or slowed down, correct? Price deposition, page 75, lines 23-28.
Mr. Sisneros: Objection. Speculation.
The witness: He probably would have, but my whole intention was not to stop him. Price deposition page 76, lines 1-3.
(emphasis supplied).
It is well to note that the above opportunity to stop Mr. Jasso was presented to Deputy Price a full mile before Jassos
collision with Joe Morris.
Finally, eyewitness Dan Sullivan testified that both he and Deputy Price were well within visual range of the Jasso vehicle
while Mr. Jasso apparently stopped and waited for the light at Woodland before commencing his U-turn. Mr. Sullivan was
able to identify on a map the positions of the two vehicles showing that Deputy Price had closed to within several hundred
yards of Mr. Jasso at this point. The evidence will show that the cars were well within visual range of one another and Mr.
Jasso would have immediately seen Deputy Prices flashing red lights in his rear view mirrors had they been activated.
Moreover, had they been activated before the Jasso vehicle passed Deputy Price going in the opposite direction after his
U-turn, Jasso would have also seen these flashing red lights coming directly at him through his windshield. All of the above
constitutes compelling evidence that it is overwhelmingly probable that Mr. Jasso would have slowed down to the speed limit
and then stopped had Deputy Price complied with his mandatory duty to use his Code 3 equipment during this pursuit.
Clearly, this is a issue of fact for the jurys determination. Had Mr. Jasso either slowed down or come to a complete stop, this
accident never could have occurred.
There are additional issues of fact for the jury to determine on causation in this case. The first issue is whether Deputy Price
caused Juan Jasso to speed up by pursuing him without lights and siren, thereby increasing the risk presented by the Jasso
vehicle to everyone in the path of the pursuit. There is sufficient evidence before the Court to raise an inference that this was
the case and to create an issue of fact for jury resolution. As noted by eyewitness Dan Sullivan, Mr. Jasso was only traveling
at 70-75 mph when he first observed him shortly before Jasso reached Deputy Prices position at Mission and Mulberry.
However, Mr. Jasso evidently increased his speed during the pursuit to 87 mph at the time he entered his locked wheel skid.
Further evidence supporting this inference is that the Jasso and Price vehicles passed at a high rate of speed going in opposite
directions (after Jassos U-turn) with only the distance of the median between them (10--15 feet). It is likely that Mr. Jasso
observed the squad car at that time and also observed it making a U-turn behind him at Woodland. From this evidence,
coupled with his increase in speed, a jury could determine that Mr. Jasso was aware of the pursuit after passing the squad car
and increased his speed in response.
A second issue of fact is whether plaintiff would have seen deputy Price approaching had Deputy Price appropriately
activated his emergency lights. Had he seen such flashing lights, he obviously would be bound by law to yield the right of
way to them and not turn left in front of them. He would also know in those circumstances that the squad car could be
engaged in a high speed pursuit or could be attempting to stop a car coming right at him with no lights on.
VI
DEPUTY PRICES VIOLATION OF THE MANDATORY SHERIFFS DEPARTMENTS PROCEDURES
REGARDING EMERGENCY VEHICLE OPERATIONS AS WELL AS THE CONTROLLING PROVISIONS OF
THE CALIFORNIA VEHICLE CODE CONSTITUTES NEGLIGENCE PER SE
As noted above, Deputy Kevin Price violated the mandatory provisions of Sheriffs Departments policy and procedure 5.1
and 2.1.35 as well as the controlling California Vehicle Code provisions. Included in the pertinent Vehicle Code section are
485
21055, 21056 and 22349. Evidence Code 669 sets forth the doctrine of negligence per se as follows:
(a) The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or
regulation of a public entity; (2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance or
regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or
property was one of the class of persons for whose protection the statute, ordinance, or regulation was
adopted.
In the instant case, clear and unrebuttable proof will be presented establishing that Deputy Prices conduct meets all four
requisite elements to give rise to the negligence per se presumption. By driving 75 mph in a 45 mph zone, Deputy Price
violated statutes (Vehicle Code 21055, 21056 and 22349) as well as regulations of the public entity (San Diego Sheriffs
Department Policy 5.1 and 2.1.35). The second requirement is that the violation of the statute or regulation must be a
proximate (legal) cause of the death or injury to the plaintiff. BAJI 3.76 defines legal cause as conduct which is a substantial
factor in bringing about the injury. If Deputy Price had complied with the applicable and mandatory statutes and regulations
regarding pursuits, he admitted that his flashing lights probably would have caused Juan Jasso to stop or slow down long
before the accident. Clearly, the Court cannot find as a matter of the law that Deputy Prices negligent conduct violating
controlling statutes and regulations was not a substantial factor in bringing about the result given the applicable sections and
his own testimony. Under these circumstances, legal cause is a question of fact for the jury. The third requirement of the
statute is that the death or injury result from an occurrence of a nature which the statute or regulation was designed to
prevent. The express terms of Vehicle Code 21055 establishes that one of the reasons for the requirement for the red lights
and siren on an emergency vehicle which would otherwise be violating the rules of the road is as a warning to other drivers
and pedestrians. Thus, it is clear from the statutes own terms that it is designed to protect the class of persons who are using
the road in the vicinity of the emergency vehicle. This obviously includes plaintiff in the instant case who was unwittingly
turning in front of an unmarked high speed chase. Moreover, the testimony of expert witness Don Reierson will demonstrate
that one of the reasons for the use of Code 3 equipment in a high speed pursuit is to force the speeding vehicle to stop or slow
down. This is precisely what Deputy Price acknowledges would likely have happened had he complied with the mandatory
statutes and regulations governing his conduct. The fourth requirement is that the person suffering the injury be a member of
the class of persons for whose protection the statute was adopted. Again, this is established by the express provisions of
Vehicle Code 21055 as well as the testimony of Don Reierson.
Section 669(b) provides that the presumption of negligence may be rebutted by proof that the person violating the statute of
regulation did what might be reasonably expected of a person of ordinary prudence who desire to comply with the law. The
deposition of Deputy Price demonstrates that there was no attempt made on his part to comply with the law. He knowingly
and willfully violated both the provisions of the California Vehicle Code and the mandatory Sheriffs Departments
procedures controlling his conduct, as shown in his following deposition testimony:
Q. You were also told during that training that unless you were going Code 3, you were bound by all traffic rules and
regulations, correct?
A. Correct.
Q. And that would include the posted speed limit as well as the maximum speed law, correct?
A. Yes, it does.
Q. Do you agree that that (75 mph chase of Jasso in 45 mph zone without Code 3) was technically, at least, a violation of the
Sheriffs Department procedures, when you did that?
A. Technically?
Q. Yes.
A. Yes. Deputy Price depo. pp. 47-48. (parenthetical supplied).
486
Deputy Prices stated reasons for doing this was that he wanted to get a clock or pace on the vehicle to support a speeding
ticket and he wanted to choose the time and place to stop Mr. Jasso. See Price Deposition page 77, lines 4 through 6. Thus,
there was no attempt on Deputy Prices part to comply with controlling procedures or laws governing the operation of his
vehicle. Therefore the presumption of negligence cannot be rebutted.
VII
SHERIFFS DEPUTIES DO NOT HAVE THE DISCRETION TO CONDUCT HIGH SPEED PURSUITS
WITHOUT BENEFIT OF CODE 3 EQUIPMENT
Discretionary immunity is not an issue in this case. The controlling Vehicle Code sections and Sheriffs policies and
procedures make it completely clear that deputies do not have discretion to engage in high speed pursuits without lights and
siren. In fact, they are expressly prohibited from such conduct by the terms of Sheriffs policy 5.1. Unless they are
proceeding Code 3 with Code 3 equipment activated, they are bound by the mandatory provisions of their own policy to
comply with all Vehicle Code provisions. This obviously includes the maximum speed law of 55 mph contained in Vehicle
Code 22349. Deputy Price might have exercised discretion to not engage in a pursuit of Mr. Jasso. However, once Deputy
Price embarked on such a pursuit and exceeded the speed limit by 30 mph, thereby endangering everyone in the path of his
pursuit, he had no discretion to do so without Code 3 equipment. It is well established that while a police officers initial
decision to act may be discretionary, once he embarks on a discretionary action, his performance becomes ministerial and is
held to the standard of due care. See Green v. City of Livermore, 117 Cal.App.3d 82, 87; Mann v. State of California, 70
Cal.App.3d 773,778 (1977); City of Sacramento v. Superior Court, 31 Cal.App.3d 395, 404 (1982). As noted in the sworn
deposition testimony by witness Dan Sullivan, when he first observed Juan Jasso, the Jasso vehicle was traveling at an
estimated 70 - 75 mph on east Mission Road. Mr. Sullivan further testified that it was immediately clear to him that driving at
this speed on Mission Road under the circumstances presented was unsafe.
Q. When the station wagon passed you on eastbound Mission, did you feel that the driver of that station wagon was
operating his car in an unsafe manner?
A. Yes, sir.
Q. And if you had been on patrol in a patrol car, you would have tried to stop him, would you not? Sullivan deposition page
46, lines 23-28.
A. Yes, sir.
Q. Because he was driving unsafely?
A. Yes, sir. Sullivan deposition page 47, lines 1-3.
Under that same standard, Deputy Kevin Price operating his vehicle at an admitted 75 mph on the same road under the same
circumstances is equally clearly an act constituting a hazard to public safety. It is merely fortuitous that plaintiff turned left in
front of the speeding Jasso vehicle rather than the speeding vehicle driven by Deputy Price. Deputy Price effectively doubled
the risk of the motoring public on Mission Road on the date of the accident by choosing to drive 30 mph over the speed limit
in his unmarked pursuit.
Thus it is clear that under both the Sheriffs Departments mandatory procedures, the Vehicle Code and the formal training
given to Deputy Price, that it had been made known to him that he was not to exceed the speed limit by 30 mph without Code
3 equipment. He had no discretion to do so and his failure to do so was a clear and obvious violation of the controlling laws
and procedures. Thus, discretion is not an issue.
487
VIII
DEFENDANTS MAY ALSO BE LIABLE FOR A DANGEROUS CONDITION OF PUBLIC PROPERTY OF
WHICH THEY HAD NOTICE OR WHICH THEY CREATED
Government Code 835 provides generally that a public entity may be liable for injury caused by dangerous condition of the
property if a negligent act of the public entity employee created the dangerous condition or the public entity had actual or
constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against
same. In this case, Deputy Price and all of the witnesses agree that the speeding Jasso vehicle which was initially encountered
did present a dangerous condition. According to Deputy Prices own testimony, he had adequate time and resources (Code 3
equipment) to get Mr. Jasso stopped or slowed down well before he got to Shermans Market. All that Deputy Price had to do
to accomplish this was to follow the controlling provisions of the Vehicle Code and the mandatory Sheriffs Departments
policies and procedures applicable to the event. Not only did Deputy Price fail to correct the dangerous condition once it
came to his actual notice, he actually participated in same without any legal basis for doing so. In other words, Deputy Price
encountered a situation where one car was driving at 70 to 75 mph and transformed that into a doubly dangerous situation
where two cars were operating at at least 75 mph in a 45 mph zone without activation of emergency lights. Deputy Price
effectively doubled the risk to the public in the path of the pursuit, including plaintiff.
There is case law in California that the dangerous condition need not be a physical manifestation of the property itself but can
rather be a use or misuse thereof. In Hill v. The People Ex Rel. Department of Transportation, 91 Cal.App.3d 429 (1979), a
15 foot 3 inch overpass which was not dangerous for normal size vehicles was held dangerous because of CALTRANS
issuance of a permit to an oversize truck which could not fit under the overpass. This combination of circumstances was held
to be a dangerous condition of public property despite the fact that there was nothing wrong with the overpass and that
CALTRANS is immune from liability for the negligent issuance of a permit. In Quelvog v. City of Long Beach, 6 Cal.App.3d
584 (1970), the court held that a public sidewalk without any structural defects could constitute a dangerous condition
imposing liability under Government Code 830 because the dangerous condition may consist of a use of said property in a
manner reasonably foreseeable which creates a danger of injury. There, the City was held liable for a person who is knocked
from a ladder by an electric autoettes whose operators the City had not warned to stay off the sidewalks. Moreover, the
Supreme Court has held that the absence of a physical structure (median barrier) on a public highway which would protect
only against the illegal crossing of the centerline of the highway can constitute a dangerous condition of public property. See
Ducey v. Argo Sales Co., 25 Cal.3d 707, 715 (1979). Moreover in Green v. City of Livermore, 117 Cal.App. 82, 91 (1981),
the court held that it is a jury question whether police officers created a dangerous condition of public property by leaving the
keys in a car that was stopped by them on a public street.
Property of a public entity includes property which is either owned or controlled by that entity. See BAJI 11.55, Government
Code 830(b) and (c). Control may be determined by whether defendant had the power to prevent, remedy or guard against
the dangerous condition. See Low v. City of Sacramento, 7 Cal.App.3d 826, 834 (1970). Proof of control may be
demonstrated by the existence of a contract between public entities. See Buchanan v. City of Newport Beach, 50 Cal.App.3d
221 (1975). In the joint disposition conference signed by County Counsel, the County defendants have stipulated that San
Marcos contracts with the San Diego County Sheriffs Department to provide police protection and patrol services to San
Marcos including Mission Road and that primary jurisdiction on Mission Road for traffic enforcement would lie with the
Sheriffs Department pursuant to the contract with the City of San Marcos. See Joint Disposition Conference Report C2.
IV
PLAINTIFF IS EXPRESSLY EXEMPTED FROM THE PROVISIONS OF THE MANDATORY SEAT BELT LAW
BECAUSE HE WAS ACTIVELY ENGAGED IN THE DELIVERY OF NEWSPAPERS AT THE TIME
California Vehicle Code 27315 exempts newspaper men from the requirements of the seat belt law as follows:
(o) This section does not apply to a person actually engaged in the delivery of newspapers to customers
along the persons route if the person is restrained by a safety belt prior to commencing and subsequent to
488
completing delivery on the route.
In fact, plaintiff had utilized his seat belt that evening before commencing his route and would have done so after the
completion of his route as was his practice. Based upon the application of this statute to plaintiffs conduct and standard of
care, plaintiff will seek a motion in limine barring defendant from attempting to use plaintiffs compliance with the statute as
evidence of negligence.
Although the statute exempts all newspaper carriers from seat belts, it is important to note that plaintiffs route was a
commercial route. Unlike residential carriers who can deliver papers without ever leaving the drivers seat of their cars,
drivers with commercial routes must physically disembark at each stop and unload quantities of papers for stores or vending
machines. Consequently, the statute is particularly applicable to their conduct.
Finally, it should be noted that defendants have dedesignated their biomechanical seat belt expert and plaintiffs counsel was
previously precluded from questioning defendants accident reconstruction expert about key details of the seat belt defense
on that basis. Consequently, defendants should be estopped pursuant to Evidence Code 623 from producing any evidence on
seat belts.
DAMAGES
Upon impact plaintiff was ejected from the vehicle. He suffered extensive injuries to his right lower leg. He was hospitalized
for 15 days and underwent surgery to set the fractures and to attempt to restore the blood supply to the leg. Heroic medical
efforts to save plaintiffs leg were made in the two months following the occurrence. The damage to plaintiffs leg was too
great however and he developed a severe suppurating infection, requiring amputation four inches below the knee on June 1,
1994. On this occasion Mr. Morris was in the hospital for 22 days and he underwent two additional surgeries, including skin
grafting.
To date, Mr. Morris has had six surgeries on his leg. His medical bills to date are approximately $158,000. He needs further
stump revision surgery and a new prosthesis now which he has been unable to get approved by MediCal or any other medical
program for the indigent. Because he cannot wear his current prosthesis, he cannot work again until this surgery is done and
the prosthesis replaced. Mr. Morris is currently 47 years of age and has three children. In the last three years before the
accident he had averaged about $28,000 in net earnings from his jobs in a plumbing supply house and delivering newspapers.
In each of the prior 10 years, he had earned over $20,000 per year. The vocational experts agree that he will have to be
retrained for a sedentary or very light duty job after he has the further stump revision surgery.
Dr. Metcalf, plaintiffs vocational rehabilitation expert has determined that Mr. Morris will require future medical expenses
of $143,820, vocational rehabilitation expenses of $9,000 and has suffered lifetime lost earnings and earning capacity of
$272,515. All of these figures are discounted to present value. Coupled with plaintiffs past medical bills, his total economic
loss is in excess of $583,000.
Understandably, Mr. Morris has suffered enormous general damages as a result of his injury and the impact on his life. He
has no health insurance and he has been turned down for the further stump revision surgery which his doctor insists that he
needs. Until and unless he gets this surgery and a replacement of his prosthesis, he is effectively unemployable in a
competitive job market. At this point his prosthesis is so ill-fitting that it can only be worn for very short periods of time. He
is now working at a part time job for a prior employer and has very limited means available to support himself or his minor
child, fractures and to attempt to restore the blood supply to the leg. Heroic medical efforts to save plaintiffs leg were made
in the two months following the occurrence. The damage to plaintiffs leg was too great however and he developed a severe
suppurating infection, requiring amputation four inches below the knee on June 1, 1994. On this occasion Mr. Morris was in
the hospital for 22 days and he underwent two additional surgeries, including skin grafting.
To date, Mr. Morris has had six surgeries on his leg. His medical bills to date are approximately $158,000. He needs further
stump revision surgery and a new prosthesis now which he has been unable to get approved by MediCal or any other medical
program for the indigent. Because he cannot wear his current prosthesis, he cannot work again until this surgery is done and
489
the prosthesis replaced. Mr. Morris is currently 47 years of age and has three children. In the last three years before the
accident he had averaged about $28,000 in net earnings from his jobs in a plumbing supply house and delivering newspapers.
In each of the prior 10 years, he had earned over $20,000 per year. The vocational experts agree that he will have to be
retrained for a sedentary or very light duty job after he has the further stump revision surgery.
Dr. Metcalf, plaintiffs vocational rehabilitation expert has determined that Mr. Morris will require future medical expenses
of $143,820, vocational rehabilitation expenses of $9,000 and has suffered lifetime lost earnings and earning capacity of
$272,515. All of these figures are discounted to present value. Coupled with plaintiffs past medical bills; his total economic
loss is in excess of $583,000.
Understandably, Mr. Morris has suffered enormous general damages as a result of his injury and the impact on his life. He
has no health insurance and he has been turned down for the further stump revision surgery which his doctor insists that he
needs. Until and unless he gets this surgery and a replacement of his prosthesis, he is effectively unemployable in a
competitive job market. At this point his prosthesis is so ill-fitting that it can only be worn for very short periods of time. He
is now working at a part time job for a prior employer and has very limited means available to support himself or his minor
child. As a result of the consequences of his injury, he is suffering from anxiety and depression. From an emotional and
physical standpoint, the loss of his limb has been extraordinarily painful.

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Verified Complaint for 1.

Violations of The Civil Rights Act of 1964

advanced: (lisa /3 schall) & san diego

December 7, 2013 at 8:48PM

Lisa Schall Trial Court Documents

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CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

2013 WL 4479840 (S.D.Cal.) (Trial Pleading)

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

C. Federal Supplemental Jurisdiction: Title 28 U.S.C. 1367(a);

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

2013 Thomson Reuters. No claim to original U.S. Government Works.

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

Table 1.0 Federal Family Civil Rights

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CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

constitutional barrier protecting individual freedom from

Santosky v. Kramer, 455 U.S. 745, 753 (1982)

Facial invalidity of any state law interfering with a parents

Washington v. Glucksberg, 521 U.S. 702, 720; Stanley v.

We have recognized on numerous occasions that the

Quilloin v. Walcott, 434 U.S. 246, 255 (1978)

Any state attempt-statutes, laws, rules, acts, policies,

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

influence of personal associations on the development of the

Prince v. Massachusetts, 321 U.S. 158 (1944)

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United States v. Alvarez, 567 U.S. ___ (2012); Ashcroft v.

United States v. Stevens, 559 U. S. ___ (2010) (slip op., at 7).

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

content-based restrictions on speech have been permitted,

Ashcroft v. American Civil Liberties Union, 535 U. S. 564,

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impossible: In addition, when the Government seeks to

Plaintiffs Support and Advocacy for FFR

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

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CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

FFRESSA Engagement in Support and Advocacy for United States Representatives

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

Commercial Purposes of Plaintiffs (COMMERCIAL PURPOSES)

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

representation, services, and support alternatives to traditional domestic dispute services.

STUARTs Position Under the United States

Business Development Activities of PLAINTIFFS

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

IV. COMMON ALLEGATIONS

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

2013 Thomson Reuters. No claim to original U.S. Government Works.

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

The STUART ASSAULT

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...

DEFENDANTS Conspiracy to Retaliate and Obstruct Justice in the STUART ASSAULT

CALIFORNIA COALITION FOR FAMILIES AND..., 2013 WL 4479840...