1 Colbern C. Stuart III Email: Cole.Stuart@Lexevia.com 2 4891 Pacific Highway Ste.

102 San Diego, CA 92110 3 Telephone: 858-504-0171 Facsimile: 619-231-9143 4 In Pro Se 5 Dean Browning Webb (pro hac vice pending) Email: ricoman1968@aol.com 6 Law Offices of Dean Browning Webb 515 E 39th St. 7 Vancouver, WA 98663-2240 Telephone: 503-629-2176 8 Attorney for Plaintiffs California Coalition for Families and Children, Inc. and 9 Lexevia, PC 10 11 12 13 CALIFORNIA COALITION FOR 14 FAMILIES AND CHILDREN, et al., 15 16 v. Plaintiffs, Case No. 13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo MEMORANDUM IN SUPPORT OF MOTION TO STRIKE MATTER SUBMITTED IN SUPPORT OF DEFENDNATS MOTION TO DISMISS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

17 SAN DIEGO COUNTY BAR ASSOCIATION, et al., 18 Date: December 19, 2013 Defendants Time: 3:30 p.m. 19 Courtroom:4C 20 21 22 23 24 25 26 27 28 -i-

ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013

MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

TABLE OF CONTENTS INTRODUCTION ................................................................................................... 1 A. Authority ............................................................................................................... 1 B. Request for Judicial Notice .................................................................................. 2 1. RJN Exhibits A and B: Declaration of Emily Garson in Support of Arrest Warrant (Garson Declaration); Superior Court of California Ex Parte Minutes Form (Ex Parte Minutes)...................................................................................... 3 2. RJN Exhibits D, F, and G: Printouts of Internet Pages at http://members.calbar.org, http://www.azbar.org, and www.nvbar.org ....... 5 3. RJN Exhibit E: Decision and Order of Inactive Enrollment: .................... 6 4. RJN Exhibit H: Order Of Temporary Suspension ..................................... 6 5. RJN Exhibits C and I: Printouts from Internet Pages at https://delcorp.delaware.gov/tin/controller and http://kepler.sos.ca.gov/ ............... 7 C. Nesthus Declaration (Dkt#16-3) ........................................................................ 10 D. Scandalous and Scurrilous Matter ............................................................... 11 E. Immaterial or Impertinent Matter ................................................................ 11 1. All Immunity Affirmative Defenses ............................................................... 11 2. All Authority Under Rules of Civil Procedure Not Asserted ......................... 13 III. CONCLUSION ..................................................................................................... 18

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

-iMEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 TABLE OF AUTHORITIES 2 Ameripride Services, Inc. v. valley Industrial service, Inc., 2008 WL 5068672 (E.D. 3 Cal. 2008) 8 4 and Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) 13 5 Bardes v. Massachusetts Mut. Life Ins. Co., 1:11-CV-340, 2013 WL 4833668 6 (M.D.N.C. Sept. 10, 2013)

11

7 Bryant v. Yellow Freight Sys., 989 F. Supp. 966, 968 (N.D. Ill. 1997 16 8 Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) 5 9 Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D.Cal.1996) 10 Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) 13 4, 12

11 Butz v. Economou, 438 U.S. 478, 506-07, 98 S.Ct. 2894, 2910-11, 57 L.Ed.2d 895 12 (1978) 12 13 Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978) 12 14 Cent. Distribs. of Beer [,] Inc. v. Conn., 5 F.3d 181, 184 (6th Cir. 1993) 16 15 Color-Vue, Inc. v. Abrams, 44 Cal. App. 4th 1599, 1603-1604, 52 Cal. Rptr. 2d 443, 16 446 (Ct. App. 1996) 8 16 8 16 2, 3 17 Combs v. Bakker, 886 F.2d 673, 677 (4th Cir. 1989) 18 De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir.2000) 19 Dow Chem. Co. v. Exxon Corp., 30 F. Supp. 2d 673, 694 (D. Del. 1998) 20 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993)

21 Fenters v. Chevron, CV-F-05-1630 OWW DLB, 2010 WL 5477710 (E.D. Cal. Dec. 22 30, 2010) 5 23 Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) 24 Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) 2 5

25 Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 (1980) 26 4, 12 27 Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008) 28 -iiMEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

13

1 Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) 2 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed. 3 2d 195 (1989)

17

15 14

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

5 Imbler v. Pachtman, 424 U.S. 409, 429, 96 S. Ct. 984, 994, 47 L. Ed. 2d 128 (1976) 6 7 In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) 8 In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992) 9 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 10 Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) 11 Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). 12 Kennedy v. Full Tilt Poker, 2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010) 17 11 2 3, 12 16 5 13

13 Kush v. Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983) 14 15 Larry v. City of the Dalles, 09-CV-663-AC, 2009 WL 4894485 (D. Or. Dec. 16, 16 2009) 3 16

17 Leatherman v. Tarrant Cnty. NarcoticsIntelligence & Coordination Unit, 507 U.S. 18 163, 167, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) 12 2 9

19 Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001) 20 Lewis v. Russell, 838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012) 21 Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA, 2008 WL 4856144 (N.D. 22 Cal. Nov. 7, 2008).

13

23 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. 24 Ed. 2d 351 (1992) 9, 10

25 Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925 F. Supp. 191, 193 (S.D.N.Y. 26 1996) 16

27 Mertens v. Permanente Med. Grp. Long Term Disability Plan, C 10-1457 RS, 2010 28 WL 5138815 (N.D. Cal. Dec. 10, 2010) -iiiMEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 Morley v. Walker, 175 F.3d 756, 760 (9th Cir.1999)

2 Murray v. Midwest Real Estate Inv. Co., No. 98C1569, 1998 WL 919694, at *2 (N.D. 3 Ill. Dec. 30, 1998) 16

4 N.Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010 WL 1499289, at *1 5 (S.D.Cal. Apr.12, 2010) 14

6 Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127 7 L. Ed. 2d 99 (1994) 10, 15 16 17 12 3

8 Odom v. Microsoft Corp., 486 F.3d 541, 546 (9th Cir. 2007) 9 Pierson v. Ray, 386 U.S. 547, 563, 87 S. Ct. 1213, 1222, 18 L. Ed. 2d 288 (1967 10 Procunier v. Navarette, 434 U.S. 555 at 562, 98 S.Ct., at 859 11 Rauch v. Day and Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978) 12 Rodriguez v. Unknown-Named disciplinary Hearings Agent, 13 209CV02195FCDKJNPS, 2010 WL 1407772 (E.D. Cal. Mar. 9, 2010)

2 16 12

14 Sadighi v. Daghighfekr, 36 F. Supp. 2d 267 (D.S.C. 1999) 15 Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984)

16 Siegert v. Gilley, 500 U.S. 226, , 111 S. Ct. 1789, 1795, 114 L. Ed. 2d 277 (1991) 12 17 Silliman v. Du Pont, 302 A.2d 327, 330 (Del.Super.Ct.1972) 18 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) 19 Tafflin v. Levitt, 493 U.S. 455, 465 (1990) 20 U.S. v. Angelilli, 660 F.2d 23 (2d Cir. 1981) 21 U.S. v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) 22 U.S. v. Turkette, 452 U.S. 576 (1981) 23 United States v. Frega, 179 F.3d 793 (1999) 9 13 16 16 14 15 16

24 Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009)16 25 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) 26 Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir.2004) 27 28 -ivMEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

2 14

1 RULES 2 Fed.R.Evid. 201(b) ......................................................................................................... 2 3 Fed.R.Civ.Proc. 8(c)..................................................................................................... 12 4 Fed.R.Civ.Proc. 12(f) .....................................................................................1 et passim 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -vMEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 2

I.

INTRODUCTION

This Memorandum in Support of Plaintiff Colbern Stuarts Motion to Strike

3 Matter Submitted in Support of Defendants Motion to Dismiss (Motion to Strike) 4 is filed in support of Plaintiffs Opposition to Defendants the San Diego County 5 Superior Court, Robert J. Trentacosta, Michael M. Roddy, Lisa Schall, Lorna A. 6 Alksne, Christine K. Goldsmith, Jeannie Lowe, William H. McAdam, Jr., Edlene C. 7 McKenzie, and Joel R. Wohlfeil ("Defendants") Motion to Dismiss Complaint 8 (MTD) (Dkt.#16-1), the Request for Judicial Notice and exhibits thereto (RJN) 9 (Dkt#16-2) and the Declaration of Kristine P. Nesthus (Dkt#16-3). 10 Relevant case history predating this Motion is set for in Plaintiffs Opposition

11 to the MTD and incorporated here by reference. In addition, Plaintiffs October 28, 12 2013 meet and confer letter (M&C) attempted to resolve informally the issues 13 raised herein. See Ex. A to Declaration of Colbern Stuart in Support of Motion To 14 Strike, Opposition to Motion to Dismiss (Stuart Decl.). Defendants have rejected 15 the M&C. Stuart Decl. Ex. B. 16 Plaintiff moves to strike (1) Defendants Request for Judicial Notice, and

17 exhibits thereto, (2) Declaration of Kristine P. Nesthus submitted in support of 18 Defendants MTD, and (3) certain insufficient defenses, immaterial, 19 impertinent, and scandalous matter in the MTD as follows. 20 21 22 23 24 25 26 27 28 II. A. Authority Federal Rule of Civil Procedure 12(f) provides: (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading -1MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

DISCUSSION

1 2 3 4

or, if a response is not allowed, within 21 days after being served with the pleading.

The function of a 12(f) motion to strike is to avoid the expenditure of time and

5 money that must arise from litigating spurious issues by dispensing with those issues 6 prior to trial . . . . Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 7 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on 8 other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). 9 10 B. Request for Judicial Notice (Dkt#16-2) The RJN may be stricken as immaterial, impertinent, or scandalous matter.

11 Facts subject to judicial notice are those which are either (1) generally known within 12 the territorial jurisdiction of the trial court or (2) capable of accurate and ready 13 determination by resort to sources whose accuracy cannot reasonably be questioned. 14 Fed.R.Evid. 201(b). A court may not take judicial notice of a matter that is in dispute. 15 Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The party requesting 16 judicial notice has the burden of persuading the court that the particular fact is not 17 reasonably subject to dispute and is capable of immediate and accurate determination 18 by resort to a source whose accuracy cannot reasonably be questioned. In re 19 Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992); Rodriguez v. 20 Unknown-Named disciplinary Hearings Agent, 209CV02195FCDKJNPS, 2010 WL 21 1407772 (E.D. Cal. Mar. 9, 2010). 22 A motion to dismiss a complaint under FRCP Rule 12(b)(6) tests the legal

23 sufficiency of the claims alleged in the complaint. Mertens v. Permanente Med. Grp. 24 Long Term Disability Plan, C 10-1457 RS, 2010 WL 5138815 (N.D. Cal. Dec. 10, 25 2010). Under Rule 12(b)(6) the court may not consider any evidence contained 26 outside of the pleadings. Larry v. City of the Dalles, 09-CV-663-AC, 2009 WL 27 4894485 (D. Or. Dec. 16, 2009). Evidence submitted to prove facts outside of the 28 four corners of a complaint is immaterial and impertinent to a Rule 12(b)(6) -2MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 attack of the complaint. [I]mmaterial matter is that which has no essential or 2 important relationship to the claim for relief or the defenses being pleaded. 3 Impertinent matter consists of statements that do not pertain, and are not necessary, 4 to the issues in question. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 5 Cir.1993), rev'd on other grounds, 510 U.S. 517 (1994). 6 7 Analysis RJN Exhibits A through I are not capable of admission by judicial notice

8 as they lack foundation, are controversial, inadmissible hearsay, scandalous, and 9 immaterial or impertinent to any issue at thisthe Rule 12 stage. Rauch v. Day and 10 Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978) (Rule 12(b)(6) permits the court to 11 consider a motion to dismiss accompanied by affidavits as a motion for summary 12 judgment. If the motion is treated as one for summary judgment, all parties shall be 13 permitted to present all material pertinent to the motion.); Jablon v. Dean Witter & 14 Co., 614 F.2d 677, 682 (9th Cir. 1980). 15 16 17 18 1. RJN Exhibits A and B: Declaration of Emily Garson in Support of Arrest Warrant (Garson Declaration); Superior Court of California Ex Parte Minutes Form (Ex Parte Minutes) RJN Exhibit A is a Declaration in Support of Arrest Warrant made by San

19 Diego City Attorneys Office Deputy City Attorney Ms. Emily Garson attesting 20 under oath to facts as follows: 21 a. That Deputy City Attorney Garson read and reviewed the contents of San

22 Diego City Police Department official reports containing 26 obscene and 23 threatening emails between Plaintiff Stuart and his ex-wife, Lynn Stuart, apparently 24 gathered in a misdemeanor criminal investigation; 25 b. That based upon the 26 obscene and threatening emails between Stuart

26 and his ex-wife, the San Diego Deputy City Attorneys Office filed charges against 27 Plaintiff Stuart on or about March 24, 2010; 28 c. That after March 24, 2010, Plaintiff Stuart continued to send obscene and -3MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 threatening messages via email despite criminal pending criminal action against 2 him. 3 In the Declaration Ms. Garson requested issuance of a warrant for Plaintiffs

4 arrest based upon her sworn representations as to the criminal nature of the obscene 5 and threatening emails contained in the official reports of the San Diego City 6 Police Department. She executed but did not date the declaration under oath. 7 The Declaration bears the April 6, 2010 signature of San Diego County

8 Superior Court Judge Krauel, and the language Declaration read; probable cause to 9 arrest found; warrant to issue. The Declaration bears a Filed stamp of April 6, 10 2010. 11 RJN Exhibit B is an Ex Parte Minutes form (CRM-177) relating to the

12 same misdemeanor criminal case. The form references issuance of a misdemeanor 13 warrant and bears a stamp Roger Krauel, is dated April 14, 2010, but bears no 14 reference to the Garson Declaration, does not identify for whom the warrant was 15 issued, and does not identify any agency receiving the warrant. 16 As presented, the exhibits lack foundation to establish their materiality or

17 pertinence to any issue in this litigation. Presumably Defendants intend to attempt 18 their introduction to build an affirmative defense of qualified immunity in support of 19 the contention that the STUART ASSAULT was pursuant to warrant. MTD 1:25, 20 3:22, 4:3, 23:28. Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) (qualified 21 immunity is an affirmative defense for which asserting party bears the burden of 22 proof); Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 23 (1980); Fed.R.Civ.Proc. 8(c) (defendant must plead any matter constituting an 24 avoidance or affirmative defense). Yet as offered, the exhibits lack necessary 25 foundation for introduction at this or any stage, and are thus immaterial or 26 impertinent to any matter properly at issue here. 27 Moreover, should Defendants attempt to perfect their foundation to establish

28 materiality to the affirmative defense, it will be vigorously contested, including that -4MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 the Garson declaration contains numerous false statements under oath. See Genzler v. 2 Longanbach, 410 F.3d 630, 636 (9th Cir. 2005); Morley v. Walker, 175 F.3d 756, 760 3 (9th Cir.1999) (prosecutor not immune for false probable cause declaration leading to 4 issuance of warrant); Fenters v. Chevron, CV-F-05-1630 OWW DLB, 2010 WL 5 5477710 (E.D. Cal. Dec. 30, 2010); Burns v. Reed, 500 U.S. 478, 486487 (1991); 6 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Kalina v. Fletcher, 522 U.S. 118, 7 126 (1997). As such the controversial evidence may also be stricken an insufficient 8 defense at this Rule 12 stage. 9 Further, the documents are inadmissible under any circumstances as they are

10 multiple hearsayout of court statements presently offered for the truth of the 11 matters therein asserted; The declaration is hearsay to this action, referencing a file, 12 itself hearsay to the criminal action and this action, containing hearsay statements or 13 other foundationless matter by a San Diego City Police Department officer, relating 14 to emails, further hearsay, containing obscene and threatening language, also 15 potentially hearsay. 16 17 Related Allegations in the MTD: Defendants representations that Contrary to his allegations, at the time of the

18 seminar, there was an outstanding warrant for Stuarts arrest in connection with a 19 criminal action (MTD 3:22), and that Stuart was arrested pursuant to the 20 outstanding warrant (MTD 4:3) are false, at least controversial, and as such are 21 constitute an insufficient defense at the Rule 12 stage. As such these sections of 22 the MTD may also be stricken. 23 24 25 26 2. RJN Exhibits D, F, and G: Printouts of Internet Pages at http://members.calbar.org, http://www.azbar.org, and www.nvbar.org These printouts of pages from internet websites purporting to reflect

27 proceedings and matters within the State Bars of California, Arizona, and Nevada are 28 foundationless, inadmissible hearsay, and not material to any matter properly at issue -5MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 here. Exhibit D contains the same misrepresentations contained in the Garson 2 Declaration, the facts are controverted, and if injected into this action by proper 3 procedure, will be vigorously contested. To the extent that the exhibits reflect 4 Plainitffs status with the State Bar of California or Arizona, such evidence is 5 immaterial and impertinent to any matter in the Complaint or at issue in the MTD 6 (see capacity discussion at II.B.5 below). Plaintiff Stuart appears in this litigation 7 only pro senot as counsel for any partyyet this fact is not pertinent to any 8 analysis under Rule 12(b)(6) or 12(b)(1). 9 10 3. RJN Exhibit E: Decision and Order of Inactive Enrollment: This document purports to be evidence of state bar proceedings within the State

11 Bar of Nevada. It is unsigned and undated, foundationless, inadmissible hearsay, not 12 material to any allegation in the Complaint, and suspected to be fraudulent. It bears 13 no indicia of filing in any matter. All testimony or evidence contained therein is 14 hearsay and will be contested as it purports to relate to the contents of the 15 controversial City Attorney declaration at RJN Exhibit A regarding matters 16 immaterial and impertinent to the Complaint or MTD. As such it may be stricken. 17 18 4. RJN Exhibit H: Order Of Temporary Suspension For many of the same reasons relating to Exhibits D, E, and F, above,

19 the document is foundationless, inadmissible hearsay, and not material to any 20 allegation in the Complaint. As above, to the extent Exhibit H contains the same 21 misrepresentations contained in the Garson Declaration, the facts are controverted, 22 and if injected into this action by proper procedure, will be vigorously contested. To 23 the extent that the Exhibit reflects STUARTS status with the State Bar of Nevada, 24 such evidence is also immaterial and impertinent to any matter in the Complaint or at 25 issue in the MTD. STUART does not appear in this litigation as counsel for any 26 party. See capacity discussion below; Stuart Decl. X. 27 28 -6MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 2 3

5. RJN Exhibits C and I: Printouts from Internet Pages at https://delcorp.delaware.gov/tin/controller and http://kepler.sos.ca.gov/ Similar to RJN Exhibits D, F, and G above, Exhibits C and I are

4 foundationless hearsay printouts from the Delaware and California Secretaries of 5 State and may be stricken for evidentiary reasons alone. However, the matters 6 asserted therein are not controvertedCCFC is a Delaware Public Benefit 7 Corporation in good standing, and Lexeiva, PC is a California Professional 8 Corporation which has its license presently suspended for reasons unrelated to this 9 action. 10 Yet these noncontroversial matters are immaterial or impertinent to any issue

11 in the Complaint or MTD. The MTDs analysis in reliance on them exhibits two 12 fundamental confusions between state and federal law on capacity and standing. 13 The MTDs confusion will be first explained, then an accurate analysis offered. 14 15 a. Capacity vs. Standing Under State Law The exhibits are offered in support of Defendants claims that CCFC and

16 LEXEVIA lack capacity to sue: As a Delaware corporation, which was only 17 incorporated the day before filing this action, CCFC' s capacity to sue is governed by 18 Delaware law. . . Under Delaware law, CCFC must appear in this action through 19 counsel and cannot proceed in propria persona. . . . (MTD 7:11). With regard to 20 Lexevia, its capacity to sue is determined by California law. (Compl. at 1.) 21 According to the California Secretary of State, it is a suspended professional 22 corporation. (RJN, Ex. I.) MTD 8:13-15. 23 CCFC and Lexevias capacity to sue are immaterial, impertinent, and raise

24 insufficient grounds for relief available by Rule 12(b)(1) or (6) as requested in the 25 MTD. Capacity and standing are distinct issues, and a plaintiffs lack of capacity to 26 sue is not an appropriate ground on which to bring a motion to dismiss for lack of 27 standing. This distinction is explained in the California Court of Appeals case 28 Defendants themselves cite: Respondents' arguments are based on their belief that -7MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 ColorVue's suspension for failure to pay its taxes deprived ColorVue of standing to 2 prosecute its action. Respondents are mistaken. Suspension of corporate powers 3 results in a lack of capacity to sue, not a lack of standing to sue. Color-Vue, Inc. v. 4 Abrams, 44 Cal. App. 4th 1599, 1603-1604, 52 Cal. Rptr. 2d 443, 446 (Ct. App. 5 1996). The California Court of Appeals for the Second District (applying California 6 Code of Civil Procedure disanalogous to the Federal Rules on the question of 7 standing) diagnosed defendant/respondents confusion: [defendants] confusion 8 may have arisen from the fact that a suspended corporation is often described as not 9 in good standing with the State of California or the Secretary of State. Color-Vue 10 at fn. 3. 11 Defendants here exhibit the same confusion as the defendants in the state court

12 of appeals case they cite. 13 14 b. Capacity vs. Standing Under Federal Law Capacity and standing are also distinct issues under federal law, but for a

15 different reason that is also fatal to Defendants analysis in the MTD. Under both 16 state and federal law, capacity may be raised by a defendant at any time in the 17 lawsuit, yet is curable by revival. Color-Vue, supra; Ameripride Services, Inc. v. 18 valley Industrial service, Inc., 2008 WL 5068672 (E.D. Cal. 2008). The analysis 19 under federal law is reported as follows: 20 21 22 23 24 25 26 27 28 -8MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

Federal Rule of Civil Procedure 9(a)(1) states that a pleading need not allege ... a party's capacity to sue or be sued. Therefore, to raise incapacity as an issue, a party must do so in a responsive pleading; failure to do so forfeits any incapacity argument. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir.2000). . . . These statements are themselves sufficient to satisfy FRCP 9(a). The primary purpose of this rule is to provide notice to the opposing party, and once notice of the defense is provided, FRCP 9 itself does not require a party to file an early dispositive motion based on the defense. See

1 2 3

Silliman v. Du Pont, 302 A.2d 327, 330 (Del.Super.Ct.1972) (citing 5 Wright & Miller, Federal Practice and Procedures Section 1295)).

4 Id. (lack of standing to sue can be raised at any time, even for the first time on 5 appeal.). See also Lewis v. Russell, 838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012) 6 (Defendants do not waive defense of plaintiffs lack of capacity by failure to assert in 7 initial responsive pleading). 8 Thus, a lack of capacity to sue is not grounds for a motion to dismiss provided

9 a party can revive. The MTD acknowledges LEXEVIAs present ability to revive its 10 capacity to sue, and the accompanying Stuart Decl. represents that revival is 11 underway. 12 The MTD nevertheless asserts dismissal under Rule 12(b)(1), reasoning that in

13 lacking capacity, LEXEVIA lacks standing under Article III. MTD 8:19-23. This 14 analysis is incorrect. Article III 2, clause 1 of the United States Constitution 15 confers jurisdiction to federal courts only over cases and controversies. Lujan v. 16 Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 17 351 (1992) (Though some of its elements express merely prudential considerations 18 that are part of judicial self-government, the core component of standing is an 19 essential and unchanging part of the case-or-controversy requirement of Article III.). 20 Under Lujan, a plaintiff must establish standing by showing (1) injury in fact, (2) a 21 causal connection between the injury and the relief sought, and (3) that the injury will 22 be redressed by a favorable decision. Id. Capacity is not relevant to establish Article 23 III standing. 24 25 c. LEXEVIAS Article III Standing LEXEVIA has averred facts sufficient to establish Article III standing. Injury

26 in fact includes injury to individuals, corporations, as well as unincorporated 27 associations. See, e.g., Lujan, supra; Nat'l Org. for Women, Inc. v. Scheidler, 510 28 U.S. 249, 255, 114 S. Ct. 798, 802, 127 L. Ed. 2d 99 (1994). Both Lexevia and -9MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 CCFC have suffered and pled injury in fact as entities existing as one or more of a 2 corporation, unincorporated association, or individuals. See analysis at Oppo.__; 3 M&C IV.I. 4 5 6 d. Corporate Plaintiffs Representation Is Immaterial to a Request for Dismissal Under Rule 12(b)(1) or (6) The MTD asserts that RJN Exhibits C and I are material to establish that

7 the corporate plaintiffs are not represented by counsel: Neither Stuart nor Mr. Webb 8 are counsel for CCFC (MTD 7), and Lexevia has appeared in this action without 9 counsel (MTD 9). As detailed at M&C IV.I.2, Both CCFC and LEXEVIA are 10 represented only by counsel, Mr. Dean Webb. The caption page of the Complaint 11 clearly identifies Mr. Webb as Attorney for Plaintiffs California Coalition for 12 Families and Children, Inc. and Lexevia, PC. (Compl. p. 1). STUART nowhere 13 claims to be counsel for any party and has consistently appeared only pro se in each 14 pleading. See Verified Complaint, Verification (Compl. pp. 171, 172); Ex Parte 15 Application for Temporary Harassment Protective Order (Dkt #4); Ex Parte 16 Application for Leave To Utilize Electronic Filing System (Dkt #6); Ex Parte 17 Application for Leave to File Over-length Brief (Dkt #17), this Memorandum, 18 Motion, and related Opposition. Mr. Webbs notation that he is in process of 19 obtaining pro hac vice admission is an accurate disclosure that he is not admitted in 20 this District, and is in process of obtaining admission by appropriate procedure. See 21 M&C sec. I. 22 As corporate representation is a capacity issue immaterial to standing, RJN

23 Exhibits C and I are impertinent, immaterial, and an insufficient defense within a 24 Rule 12 motion. They may thus be stricken. 25 26 C. Nesthus Declaration (Dkt#16-3) For many of the same reasons, the Nesthus Declaration is evidentiary,

27 controversial, immaterial, impertinent, and inappropriately filed at any stage. The 28 Declaration is testimony of irrelevant events by Ms. Nesthus after she became aware -10MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 of the Complaintcalling around to parties and counsel requesting withdrawal of the 2 Complaint, demands to remove home addresses from the on-file Complaint, 3 hearsay representations regarding Ms. Nesthus conversations with Mr. Webb about 4 details of his representation of Plaintiffs. It may thus be stricken. 5 6 D. Scandalous and Scurrilous Matter To the extent that the RJN exhibits and Nesthus Declaration are immaterial or

7 impertinent, they are also scandalous, defamatory, exhibit perjury, and are filed to 8 continue the pattern of HARASSMENT AND ABUSE identified in the Complaint 9 and the Motion for Harassment Temporary Restraining order (Compl. 188, 202, 10 203, 228, 276, 279-80, 294, 386-391; Dkt#4). Scandalous includes allegations that 11 cast a cruelly derogatory light on a party or other person. In re 2TheMart.com, Inc. 12 Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000); Bardes v. Massachusetts Mut. 13 Life Ins. Co., 1:11-CV-340, 2013 WL 4833668 (M.D.N.C. Sept. 10, 2013) (brief 14 containing impertinent personal opinions of opposing counsel may be stricken as 15 scurrilous). They may thus be stricken. 16 17 E. Immaterial or Impertinent Matter in MTD (Dkt#16-1) The MTD asserts matter and argument so misguided as to rise to the level of

18 being immaterial or impertinent to any relief available under a Rule 12(b)(6) 19 motion, and may be stricken. 20 21 1. All Immunity Affirmative Defenses MTD sections C, D, and E raise the substantive affirmative defenses of

22 absolute judicial and sovereign immunities. Such defenses are immaterial, 23 impertinent, and insufficient defenses in the present Rule 12(b)(6) motion and thus 24 may be stricken. 25 Immunity is an affirmative defense. Butler v. Elle, 281 F.3d 1014, 1021 (9th

26 Cir. 2002) (Government officials sued in their individual capacities under 1983 27 may raise the affirmative defenses of qualified or absolute immunity. Gomez v. 28 Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 (1980) (this -11MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 Court has never indicated that qualified immunity is relevant to the existence of the 2 plaintiff's cause of action; instead we have described it as a defense available to the 3 official in question.); Procunier v. Navarette, 434 U.S. 555, 562 (1978); Pierson v. 4 Ray, 386 U.S. 547, 556 (1967); Butz v. Economou, 438 U.S. 478, 508 (1978); Siegert 5 v. Gilley, 500 U.S. 226 (1991); Leatherman v. Tarrant Cnty. NarcoticsIntelligence & 6 Coordination Unit, 507 U.S. 163, 167 (1993). 7 The burden of pleading and proving any affirmative defense rests with the

8 defendant. Fed.Rule Civ.Proc. 8(c) (defendant must plead any matter constituting an 9 avoidance or affirmative defense); 5 C. Wright & A. Miller, Federal Practice and 10 Procedure 1271 (1969). It is for the official to claim that his conduct was justified 11 by an objectively reasonable belief that it was lawful. We see no basis for imposing 12 on the plaintiff an obligation to anticipate such a defense by stating in his complaint 13 that the defendant acted in bad faith. Gomez, supra. The same is true for the defense 14 of reasonableness. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Butz, supra. 15 Affirmative defenses generally may not be raised in a Rule 12(b)(6) motion

16 unless based on some non-controversial preclusive legal defense. Scott v. Kuhlmann, 17 746 F.2d 1377, 1378 (9th Cir. 1984). A defendant may bring a Rule 12(b)(6) motion 18 based upon an affirmative defense in unusual circumstances: where the face of the 19 Complaint admits a defense. See, e.g., Jablon v. Dean Witter & Co., 614 F.2d 677, 20 682 (9th Cir. 1980) (If the running of the statute is apparent on the face of the 21 complaint, the defense may be raised by a motion to dismiss.); Graham v. Taubman, 22 610 F.2d 821 (9th Cir.1979). A Rule 12(b)(6) motion asserting that the complaint 23 admits a defense must show the defense is (i) definitively ascertainable from the 24 complaint and other allowable sources of information, and (ii) suffice to establish 25 the affirmative defense with certitude. Gray v. Evercore Restructuring L.L.C., 544 26 F3d 320, 324 (1st Cir. 2008). 27 As detailed in the Opposition, the Complaint admits no affirmative defense of

28 immunity. See also M&C III.B. MTD sections IV.C, D, and E may therefore be -12MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 stricken as immaterial, impertinent matter and insufficient defenses in the present 2 Rule 12(b)(6) context. 3 4 2. All Authority Under Rules of Civil Procedure Not Asserted The MTD requests relief of dismissal with prejudice or without leave under

5 Rule 12(b)(6), yet presents arguments which cannot achieve that result. MTD IV.3:4, 6 11:8, 23:4. Rule 12(f) may be used to strike any part of the prayer for relief when the 7 relief sought is not recoverable as a matter of law. Bureerong v. Uvawas, 922 F.Supp. 8 1450, 1478 (C.D.Cal.1996); Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA, 9 2008 WL 4856144 (N.D. Cal. Nov. 7, 2008). 10 As detailed in the Opposition, the MTD conflates authority under Rules 12(c), (e),

11 and (f) with Rule 12(b)(6), and attacks the Complaint for failing to satisfy Rule 9(b)s 12 fraud pleading standard when the relevant standard is fact pleading under Rules 9 and 13 8(a) per Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Gilligan v. Jamco 14 Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). The result is a confusing morass of 15 immaterial and impertinent argument and authority seeking unavailable relief, and 16 rising to the level of strikeable matter. 17 Though the Court may convert a Rule 12(b)(6) motion to a Rule 12(e) motion,

18 doing so in this case would be improper. The class of pleadings that are appropriate 19 subjects for a motion under Rule 12(e) is quite small. Kennedy v. Full Tilt Poker, 20 2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010). A motion for more definite 21 statement is used to provide a remedy for an unintelligible pleading rather than a 22 correction for lack of detail. N.Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 23 2010 WL 1499289, at *1 (S.D.Cal. Apr.12, 2010). Length, complexity, or even 24 unnecessary prolixity are not grounds for dismissal with or without leave under Rule 25 12(b)(6). See, e.g., Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th 26 Cir. 2008). Where a complaint exceeds reasonable inclusion of supplemental 27 particulars, the proper disposition of such matter is to simply ignore it. U.S. v. 28 Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (Some complaints are -13MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 windy but understandable. Surplusage can and should be ignored.); Wynder v. 2 McMahon, 360 F.3d 73, 80 (2d Cir.2004) (holding that district court erred in 3 dismissing on Rule 8 grounds when the complaint, though long, was not so 4 confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, 5 is well disguised.) 6 7 Analysis Defendants, with some prolixity, assail the Complaint as incomprehensible

8 rambling (MTD 1, 10:2), of the magnitude of War and Peace (MTD 2), bucket of 9 mud, sprawling, incomprehensible, confusing, distracting, ambiguous, and 10 unintelligible (MTD 9), confusing and conclusory (MTD 10), and that a reader 11 must "try to fish a gold coin from a bucket of mud[,]". Yet the Complaints length 12 and complexity cannot be accused as a defect of pleading; the statutes it is brought 13 under are notoriously complex and perhaps confusing even to the accomplished 14 jurists present in this litigation. 15 Yet such insults, even if accurate, are not grounds for dismissal under Rule

16 12(b)(6). The MTD asserts authority under Rules 12(e) and (f), or motions for leave 17 to amend under Rule 15, in support of the MTDs arguments under Rule 12(b)(6). 18 See Oppo., M&C III.A. The MTDs authority and arguments thereunder are thus 19 disenabling to the relief sought, and may be stricken. Bureerong, supra. 20 Moreover, the Complaint, like the complex criminal enterprises RICO and the

21 civil rights statutes are intended to extinguish, is by design complex. The heavy 22 artillery of federal law RICO mechanisms are targeted to combat only complex 23 organizations. United States v. Frega, 179 F.3d 793, 800 (9th Cir. 1999)). The 24 statement of findings that prefaces the Organized Crime Control Act of 1970 reveals 25 that Congress enacted RICO to redress a highly sophisticated, diversified, and 26 widespread activity that annually drains billions of dollars from America's economy 27 by unlawful conduct and the illegal use of force, fraud, and corruption using social 28 exploitation deriving money and power . . . increasingly used to infiltrate and -14MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 corrupt legitimate business . . . and to subvert and corrupt our democratic processes. 2 The breadth of the organized crime activities in the United States weaken the 3 stability of the Nation's economic system, harm innocent investors and competing 4 organizations, interfere with free competition, seriously burden interstate and foreign 5 commerce, threaten the domestic security, and undermine the general welfare of the 6 Nation and its citizens. Congress intended RICO to supplement state laws under 7 which organized crime continues to grow because of defects in the evidence8 gathering process of the law inhibiting the development of the legally admissible 9 evidence necessary to bring criminal and other sanctions or remedies to bear on the 10 unlawful activities of those engaged in organized crime and because the sanctions and 11 remedies available to the Government are unnecessarily limited in scope and impact. 12 84 Stat. 922923. U.S. v. Turkette, 452 U.S. 576, 588-89 (1981). Four decades of 13 caselaw have confirmed Congress intent that RICO is not targeted toward mom-n14 pop backroom scams, but to inoculate erstwhile legitimate enterprises, including 15 unions, public corporations, mass market retailers, and public institutions such as law 16 enforcement, political office, and the courtsincluding one case identifying 17 Defendant San Diego Superior Court itself. See, e.g., H.J. Inc. v. Nw. Bell Tel. Co., 18 492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed. 2d 195 (1989) 19 (telecommunications corporations); Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 20 249, 260, 114 S. Ct. 798, 805, 127 L. Ed. 2d 99 (1994) (civil rights organizations); 21 Odom v. Microsoft Corp., 486 F.3d 541, 546 (9th Cir. 2007) (Microsoft Corporation 22 and Best Buy software retailing operations); Vierria v. California Highway Patrol, 23 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009); Dow Chem. Co. v. Exxon Corp., 30 F. 24 Supp. 2d 673, 694 (D. Del. 1998); U.S. v. Angelilli, 660 F.2d 23 (2d Cir. 1981) (civil 25 courts); United States v. Frega, 179 F.3d 793 (1999) (the San Diego Superior 26 Court). 27 One civil rights conspiracy statute asserted, 42 U.S.C. 1985(1), (2), and (3) is

28 drafted as a single sentence of 590 words in six paragraphs. It has been generously -15MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 assailed by Justice John Paul Stevens as somewhat difficult to parse. Kush v. 2 Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983). RICO 3 too has been bewailed as "arcane," "tormented," "complicated," "agonizingly 4 difficult" and "fraught with arcane mysteries." Bryant v. Yellow Freight Sys., 989 F. 5 Supp. 966, 968 (N.D. Ill. 1997); Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925 6 F. Supp. 191, 193 (S.D.N.Y. 1996) ("arcane eccentricities of RICO jurisprudence"); 7 Combs v. Bakker, 886 F.2d 673, 677 (4th Cir. 1989) (a "tormented statute"); Sadighi 8 v. Daghighfekr, 36 F. Supp. 2d 267 (D.S.C. 1999) (noting statute's "torment"); Tafflin 9 v. Levitt, 493 U.S. 455, 465 (1990); Cent. Distribs. of Beer [,] Inc. v. Conn., 5 F.3d 10 181, 184 (6th Cir. 1993) ("one of the most complex statutes ever enacted by 11 Congress"); Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) (a complex 12 statute); Murray v. Midwest Real Estate Inv. Co., No. 98C1569, 1998 WL 919694, 13 at *2 (N.D. Ill. Dec. 30, 1998) ("exceedingly complicated"). 14 Without doubt, the asserted statutes are complexhoned power tools to enable

15 citizens to combat collusion by public and private officers wielding the devastating 16 potential of state police power and private wealth to leverage racketeering and civil 17 rights crimes: 18 19 20 21 22 23 24 25 26 27 Pierson v. Ray, 386 U.S. 547, 563 (1967); Gregoire v. Biddle, 177 F.2d 579, 581 (2d 28 Cir. 1949) (It does indeed go without saying that an official, who is in fact guilty of -16MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

The section's purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.

1 using his powers to vent his spleen upon others, or for any other personal motive not 2 connected with the public good, should not escape liability for the injuries he may so 3 cause; and, if it were possible in practice to confine such complaints to the guilty, it 4 would be monstrous to deny recovery.); Imbler v. Pachtman, 424 U.S. 409, 429 5 (1976) (This Court has never suggested that the policy considerations which compel 6 civil immunity for certain governmental officials also place them beyond the reach of 7 the criminal law. Even judges, cloaked with absolute civil immunity for centuries, 8 could be punished criminally for willful deprivations of constitutional rights on the 9 strength of 18 U.S.C. 242, the criminal analog of 1983.). 10 To plead to these statutes, the Complaint must detail the complex and diverse

11 duties, acts, and enterprises harming plaintiffs and impacting a wide class of U.S. 12 citizens numbering in the millions. The Complaint asserts 32 distinct civil causes of 13 action and 32 related indictable federal felonies, 27 categories of predicate crimes 14 and 13 RICO Claims for Relief, based on seven Schemes and Artifices to Defraud 15 under nine federal mail, wire, bank, and honest services fraud criminal statutes, 16 including related obstruction of justice, and witness tampering and retaliation. It 17 asserts two counts for prospective relief including a Motion for a Harassment 18 Restraining Order and requests to enjoin enforcement of an entire body of 19 unconstitutional family and criminal law. The Complaint names 49 distinct public 20 and private entities comprising a nationwide Domestic Dispute Industry Criminal 21 Enterprise (DDICE). Even counsel experienced in this rapidly-evolving body of 22 federal civil and criminal law would be understandably paused to comprehend the 23 Complaints necessary depth and complexity. 24 It is no fault of Defendants that, despite their relative acumen in the law, they did

25 not immediately grasp the gravity of the statutes posed against them. Their refusal to 26 pause to comprehend that message before insulting its messenger is far less innocent. 27 28 -17MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

CONCLUSION

Defendants have attempted to introduce immaterial, impertinent, controversial, scandalous, and inadmissible evidence in support of a motion that cannot weigh evidence. They have submitted a perjurous declaration and foundationless, incomplete, and potentially fraudulent documentsvia a request for judicial notice. They have misunderstood and misrepresented capacity and standing under both state and federal law. The have requested the wrong relief under the wrong authority. They have refused Plaintiffs efforts toward informal resolution by withdrawal of the errant pleadings and exhibits, and refused stipulations to resolve pleading matters which are properly and regularly resolved by leave to amend, forcing unnecessary pleading in opposition. Plaintiff respectfully requests the Court strike the following as insufficient defense or any redundant, immaterial, impertinent, or scandalous matter under Federal Rule of Procedure 12(f):

1. The RJN and all Exhibits thereto (II.B supra); 2. The Nesthus Declaration (II.C supra); 3. MTD IV.C (11th Amendment Immunity Affirmative Defenses) (II.D.1 supra.); 4. MTD IV.D (Judicial Immunity Affirmative Defenses) (II.D.1 supra); 5. MTD IV.E (Quasi-Judicial Immunity Affirmative Defenses) (II.D.1 supra); 6. MTD IV.B (Bucket of Mud Attack) (II.D.3 supra); 7. MTD IV.A.1 (Corporate Plaintiffs Capacity) (II.B.5 supra);

-18MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

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

2 (e), (f), Rule 9(b)) (II.D.2, 3 supra). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM

Respectfully Submitted

DATED: November 7, 2013

By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children in Pro Se

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this 7th day of November, 2013. By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children in Pro Se

-1MEMO IN SUPP OF MTN TO STRIKE 13-CV-1944 CAB BLM