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CORPORATE DISCLOSURE STATEMENT

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC
Appellant California Coalition for Families and Children, PBC is a Delaware
public benefit corporation with no parent corporations. No publicly held company
owns 10% or more of its stock.
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I.
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STATEMENT OF JURISDICTION
This appeal arises from an action for damages and prospective relief under the
Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), 18 U.S.C.
1961-1964, The Civil Rights Act of 1871, 42 U.S.C. 1983, 1985, and 1986; the
Lanham Act, 15 U.S.C. 1125(a); the Declaratory Judgment Act, 28 U.S.C. 2201
et seq.; and supplemental California state law claims. Subject matter jurisdiction is
pursuant to 28 U.S.C. 1331 (federal question), 1337(a) (regulation of commerce),
1343(a)(3) (civil rights), 1367(a) (supplemental), and 2201 (declaratory judgment).
This Court has jurisdiction over the July 9, 2014 Judgment in a Civil Case
(ER 4) as a final decision of a district court. 28 U.S.C. 1291; Bradshaw v.
Zoological Soc. of San Diego, 662 F.2d 1301, 1304 (9th Cir. 1981). This Court also
has jurisdiction over interlocutory orders preceding final judgment, including the
December 23, 2013 Order dismissing the original complaint with leave to amend
(ER 41) (Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)), the July 9,
2014 denial of Appellants Motion for Preliminary Injunction (ER 11), and the
September 16, 2013 Order denying leave to file a harassment restraining order (ER
67) pursuant to 28 U.S.C. 1292(a). Privitera v. California Bd. of Med. Quality
Assur., 926 F.2d 890, 892 (9th Cir. 1991).
Appellants timely filed a Notice of Appeal on July 14, 2014. (ER 1).
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II.
1.
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STATEMENT OF ISSUES PRESENTED
Can a district court dismiss a complaint with prejudice sua sponte for
failure to comply with Rule 8, without analyzing grounds for dismissal under Rule
12 or 41(b)? If so, did Appellants First Amended Complaint violate Rule 8 if it
contained cognizable claims, but also surplusage prolixity and argument? Are
such restrictions on pleadings a violation of the Rules Enabling Act and the United
States Constitution?
2.
Can a district court dismiss a non-State entity asserting the affirmative
defense of Eleventh Amendment immunity without receiving facts determinative of

whether the entity is the alter ego of the State?
3.
Does this Courts decision in Ashelman v. Pope extend absolute judicial
immunity family court judicial officers functioning in their judicial capacity as

officers of the court, running the family court system? Is Ashelman v. Popes
extension of Stump v. Sparkman an inappropriate encroachment on powers
reserved to Congress under Article I, sec. 1, cl. 2 of the United States Constitution?
4.
Was Appellant Stuart entitled to leave to seek a witness harassment
restraining order to restrain defendants from threatening Appellants association

members and witnesses?
5.
Did the district courts admonishment of California Coalitions local
counsel while he was attempting to enter an appearance, and courtroom hostility and
threats of Rule 11 sanctions deprive Appellants of an impartial tribunal?
6.
Should counter-sanctions under Rule 11 be awarded to Appellants
after Appellee San Diego County Superior Court brought, and lost, two motions for
Rule 11 sanctions, and lost every issue in the two underlying motions to dismiss on
which the Rule 11 motion was based?
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STATEMENT OF THE CASE
Appellant California Coalition for Families and Children, PBC is a public

benefit corporation supporting the interests of families and children in domestic
disputes and child custody. Colbern Stuart is California Coalitions President.
California Coalition sues its competitorspublic and private legal and social service
providersincluding the San Diego County Bar Association and divorce lawyers
affiliated with its family law subsection, San Diego County Superior Court, Family
Division judicial officers and administrators, divorce industry forensic
psychologists, and others who comprise and support the California divorce
industry.
California Coalition alleges these divorce industry professionals, acting in
conspiracy and enterprise, engaged in a pattern of racketeering activity under color
of law, consisting of fraud, extortion, and violence against Stuart, including
assaulting Stuart at a 2010 meeting of San Diego divorce lawyers which California
Coalition was attending to develop its business and advance reform. California
Coalition alleges public and private entity defendants have coordinated their
substantial power and wealth to stifle and retaliate for California Coalitions
competition and reform, and to protect their markets and enterprises. The action
seeks legal and equitable remedies under RICO, the Civil Rights Act, the Lanham
Act, and the Declaratory Judgment Act for past and ongoing damage and deprivation
to California Coalition and its association members, and Stuarts business and
person.
The action is present on appeal after the district court dismissed Appellants
First Amended Complaint (FAC) with prejudice for a failure to comply with Rule
8(a)(2).
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STATEMENT OF FACTS
This action arises from an extended series of conflicts between California

Coalition and the San Diego Family Law Community occurring in the course of
California Coalitions business development and reform activity, including: (1) An
April, 2010 confrontation between California Coalition and defendants San Diego
County Bar Association (SDCBA) and its security staff, San Diego County Superior
Court, Family Division judges, family law forensic psychologists, San Diego
County Sheriffs Deputies, and divorce attorneys, occurring at a meeting of the San
Diego County Family Law Community (Stuart Assault, ER 137); (2) SDCBAs
subsequent collaboration with the San Diego City Attorneys Office to persecute
Stuart for misdemeanors relating to his reform activity (the Malicious Prosecution,
ER 177); (3) a pattern of fraud and extortion by Family Law Community forensic
psychologist Dr. Stephen Doyne (Doyne Terrorism, ER 265); (4) obstruction of
justice by Defendant Commission on Judicial Performance of California Coalitions
attempts to redress these and other claims with state and federal authorities
(Commission Obstruction of Justice, ER 331); and (5) San Diego Superior Court
Counsel Kristine Nesthuss coordination of police to threaten criminal prosecution
toward California Coalitions members and witnesses after this action was filed,
(Nesthus Obstruction of Justice, ER 208), and (6) the concerted and successful
effort to disbar Stuart, an attorney in all state and federal courts in California,
Nevada, and Arizona because of his activism (Malicious Prosecution Within State
Bar, ER 192-193, 198-199).
A. The Original Complaint
This action was filed in August, 2013, three months after Stuart was released
from fifteen months of illegal imprisonment relating to the Stuart Assault. FAC
Count 3 (ER 178-207). The original Complaint (Doc. No. 1) alleged about 36 claims
4
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against about 50 defendants under complex 1 racketeering and civil rights conspiracy
statutes supported by substantial factual detail.
California Coalition anticipated the filing would provoke defendants to
escalate their pattern of harassment of California Coalition, and filed the Complaint
as a verified pleading to enable it to serve as an evidentiary foundation in support an
immediate motion for a witness harassment restraining order consistent with 18
U.S.C. 1514(b). ER 358. The district court denied Stuarts application for leave
to seek a protective order, instead sealing the Complaint. ER 67-69. California
Coalitions fears were accuratedefendants continued to threaten appellants
witnesses, litigation process servers, and counsel. See FAC Count 4, Nesthus
Obstruction of Justice; Doc. Nos. 114, 129 (sealed oppositions to California
Coalitions local counsel Mr. Eric Chings motions to withdraw).
Two groups of defendants immediately moved to dismiss under Rule 12: The
San Diego County Superior Court and its employees (Doc. No. 16) and the
Commission on Judicial Performance and its employees (Doc. No. 22).
The
Complaint was drafted by Stuart in pro se, during his illegal imprisonment and the
three months after release, while expiration of limitations periods were
approaching. 2
Stuart acknowledged the sensibility of amending to refine the
Complaint, and attempted to negotiate stipulations to withdraw motions to dismiss,

extend time to respond, and permit amendment. See October 28, 2013 Meet and
Justice Stevens has generously described Section 1985 as somewhat

difficult to parse. Kush v. Rutledge, 460 U.S. 719, 724 (1983); Even otherwise
experienced practitioners know that RICO is fraught with arcane mysteries. Bryant
v. Yellow Freight Sys., 989 F. Supp. 966, 968 (N.D. Ill. 1997).
2
All Defendants moved to dismiss on statutes of limitation defenses. Doc.
No.131.
5
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Confer letter (M&C) at Doc. No. 21-1. Superior Court defendants refused, instead
filing a motion for Rule 11 sanctions. Doc. No. 21-1, Ex. B; Doc. No. 23. Other
defendantsall who so requestedreceived extensions of time to respond. Doc.
Nos. 40, 47, 64, 75, 84, 86, 88. Remaining defendants failed to seek stipulation to
extend time to respond, instead filing voluminous motions to dismiss. Doc. Nos. 48,
49, 50, 51, 52, 53, 54, 62, 65, 67, 73, 74.
Forced to oppose, Stuart argued inter alia 3 (1) Superior Court defendants
brought the wrong Rule 12 motion to dismiss rather than clarify, (2) the Complaint
gave adequate notice under Rule 8, yet could be amended to cure defects, and (3) no
defendant could establish immunity on the face of the Complaint. Doc. Nos.19, 21,
57.
B. The Superior Court and Commission Motions To Dismiss
At hearing on December 19, 2013 the district court dismissed the entire
Complaint with leave to amend. ER 65. The court dismissed California Coalitions
claims because counsel Dean Webb was not yet admitted pro hac vice. 4 With
California Coalition dismissed, the court reasoned the Complaint must be rewritten
to disentangle Stuarts claims from California Coalitions claims. ER 55.
The court initially dismissed all civil rights claims with prejudice as barred by
a two year statute of limitations, stating theres no way to fix that. ER 57. Stuart
reminded the court of tolling and estoppel issues raised in the briefing, and the court
revised its ruling, instructing: if you think you can make a legitimate, nonfrivolous
argument . . . try it. ER 61-62. The courts written order instructed set forth
Superior Court defendants moved on fourteen other grounds.
Mr. Webb was admitted January, 2014 (Doc. No. 94). ER 24

6
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specific allegations in his amended complaint to support tolling and estoppel. ER

48.
The court instructed Stuart to amend to clarify the civil rights claims by
pleading plausible facts 5 against each defendant: [I]dentify the factual allegations
that support each alleged violation. ER 46. The court granted leave to amend with
the following exceptions (i.e., dismissals with prejudice) for Superior Court
Defendants having judicial immunity, and the Commission on Judicial Performance
and is employees in official capacity having Eleventh Amendment immunity. ER
48. The court did not identify any claims falling into those categories.
The December 23 written order also instructed to add detail on amendment:
(1) Heed the statute of limitations for Title 42 claims, (2) To the extent Stuart
contends that equitable tolling should apply, he must set forth specific allegations in
his amended complaint to support such a theory and (3) appropriately and
coherently identif[y] causes of action and the specific defendants he alleges liable
for his asserted damages without unnecessary verbiage, argument, and rhetoric. ER
48-49. The court did not identify allegations consisting of unnecessary verbiage,
argument, and rhetoric.
The court threatened sanctions if the Stuart did not drop defendants and/or
plead more detail against them in the amended complaint: I'm denying their motion
for sanctions, but if you come back and give me this laundry list of defendants again
and do not give me justifiable reasons as to why they should be defendants in this
case and don't take in consideration their rights to judicial immunity and just name
them to harass them, I will consider sanctions against you sir. ER 59-60. The court
Stuart understood the district courts multiple references to plausible facts

(ER 60, 65) to mean enough facts to state a claim to relief that is plausible on its
face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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instructed that the amended complaint better damn well not be more than 30 pages
long, sir. ER 61.
The court denied the San Diego County Superior Courts motion for sanctions
and Stuarts claim for counter-sanctions, and deemed withdrawn ten other pending
motions to dismiss, providing no adjudication or direction. ER 16, 45, 49.
C. The First Amended Complaint
On January 9, 2014 Appellants filed a First Amended Complaint in six
sections including Section III Background: ER 183-196 (13 pages); Section IV
Common Allegations (supporting all counts): ER 197-205 (8 pages); Section V
Charging Allegations: Civil Rights (supporting Counts 1-14): ER 205-345 (140
pages, 10 pages/count); Section VI Lanham Act: ER 345-354 (9 pages); Section VII
Racketeering (Racketeering Counts 1-11): ER 354-411 (57 pages, 5 pages/count);
Section VII Prospective Relief Counts 1, 2: ER 411-417 (6 pages). The FAC
includes an appendix (Doc. No. 90-1) consisting of about 40 exhibits, all of which
are referenced, only portions of which are incorporated by reference.
These sections contained the following revisions to comply with the courts
instructions:
1. Reduction Amendments
To reduce unnecessary verbiage, argument, and rhetoric" Appellants deleted
a table of cases defining Family Federal Rights (Doc. No. 1 Compl. 76), details
of California Coalitions business and reform (Compl. 78-80), footnotes citing
legal authority (Compl. pp.173-175), and streamlined style. Appellants reduced the
Section 1514(b) allegations (386-391) because the courts denial of leave (ER 67)
altered those issues.
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2. Expanding Amendments
The court instructed to separate claims by defendant and theory, and add non
frivolous argument (ER 62) and detail to discern just how many separate state and
federal claims and to connect his factual allegations to the numerous causes of
action identified. ER 46, 55. The FAC complies by dissecting original Counts 1
and 2 into several distinct causes of action against distinct defendants or groups of
defendants, creating new FAC Counts 1, 2, 5, 10, and 12-14 in the FAC.
The court instructed to make clear who is suing who for what and identify
allegations that support each alleged violation. The FAC complies by breaking
down Counts into fact subsets organized around a particular defendant under each
statute. For example, Count 1 alleges one Section 1983 claim per defendant based
on the Stuart Assault (Count 1, Claim 1.1 Off Duty Officers, Claim 1.2 Sheriffs
Deputies, Claim 1.3, etc.). Count 2 breaks down state claims by defendant on the
same facts. This compelled expanding Count 1 and 2 by 35 pages.
Commission Defendants were moved to an independent Count 5, and claims
against them broken down by distinct legal theories (Claims 5.1-5.6) compelling
addition of about 13 pages. Remaining counts were broken down by defendant:
FAC Count 6 (supervisory theory claims) expanded to thirteen pages, Count 7
(municipal theory claims) expanded to seven pages, Count 9 (42 U.S.C. 1985
claims) to ten pages, and Count 11 (Doyne Terrorism) expanded to fourteen pages.
Each Civil Rights Act claim was pled parallel with a state law constitutional tort
claim under Article I, 26 of the state constitution. See Katzberg v. Regents of Univ.
of California, 29 Cal. 4th 300 (2002).
Because the court admonished against length, California Coalition refrained
from further dividing claims per particular right or privilege deprived, pleading only
to the statutory language. Appellants expressed a willingness to further refine each
claim, but a reluctance to increase length. See Sec. VI.B.5 infra.
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3. Standardized Pleading of Short, Plain Claims

The court instructed to clarify who was suing who for what. ER 61. The
FAC complies by adding a short introductory caption and first paragraph to every
claim identifying the statute asserted, party/ies asserting, and defendants to each
claim. See e.g. FAC 153, 168, etc. Each claim incorporates earlier passages
tagged with acronyms to avoid repetition, requiring minimal additional facts specific
to the defendant/s or theory of the claim. Each claim concludes with a list of rights
or privileges violated and a short paragraph reciting verbatim the language of the
statute or law asserted. See, e.g., FAC Claim 1.2, 175.
This format tracks the language of Section 1983 and this Courts Model Jury
Instruction 9.2, and follows the form 6 provided by the Southern District for Civil
Rights Act cases. This standard paragraph contained in each claim is the core short,
plain statement required by Rule 8.
4. Anticipatory Pleading: Judicial Immunity
The court initially dismissed judicial defendants with prejudice as immune for
the the way the family court operates, reasoning they have judicial immunity for
that. ER 59. The court offered that appellants could amend to state a cause of
action that clearly outlines to the court they acted in a capacity that wasn't their
judicial capacity. Id.
The FAC complies by adding facts establishing that judicial officers acted in
the complete absence of jurisdiction, or performed non-judicial acts. FAC 294296, 493, 651, 706, 731, 738, 899. The FAC necessarily pleads functions which are
immune from civil rights liability, but relevant to RICO liability, tolling and
estoppel, and prospective relief, none of which are subject to immunity. To clarify
Motion to Take Judicial Notice (MTJN) Ex. 7.

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the claims not based on immune acts, the FAC highlights claims relying on only the
non-immune functions by bolding non-immune. See FAC 350, 478, 764, 765,
774, etc.
5. Anticipatory Pleading: Eleventh Amendment
Commission Defendants attacked in their initial motion accusing insufficient
detail supporting ultra vires allegations.
Doc. No. 22-1.
proffering to amend to plead additional detail.
Stuart opposed by
Doc. No. 57-1.
The FAC
consummates that proffer, by extracting Commission Defendants from original

Counts 1 and 2, and placing them into their own Count 5, adding twenty pages of
facts detailing the conspiracy and ultra vires allegations. ER 217-231.
6. Anticipatory Pleading: Plausibility, Particularity
Defendants which filed and served motions deemed withdrawn asserted
many plausibility and particularity attacks under Twombly and Rule 9(b)
particularity attacks. In response California Coalition broke the mail fraud and
Lanham Act false advertising counts into distinct claims directed at each defendant
and added about fourteen pages of detail. FAC Count 11. To address plausibility
attacks and the courts command to plead plausible facts Appellants added detail
supporting statute of limitations issues (continuing conspiracy, fraud, duress, undue
influence), causation (setting in motion), immunity (ultra vires, judicial act,
jurisdiction), conspiracy (explicit and circumstantial evidence of coordinated action,
etc.), enterprise (common purpose, continuity), state action (public-private
collaboration and enterprise), false advertising (common consumer markets, details
of representations in advertising), and fraud, duress, and undue influence sufficient
to satisfy Rule 9(b) (date, time, place, content of representations), adding about 20
pages.
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To address Superior Court Defendants attack that the complaint did not allege
constitutional rights violated (Doc. No. 16) and the district courts instruction to
identify constitutional rights, the FAC describes each state and federal constitutional
right (FAC 158-165), details the substantive due process theory in Count 12, and
a trespass under color of law theory in Count 13.
7. Anticipatory Pleading: Statute of Limitations
The court initially dismissed all civil rights claims as barred by a two year
statute (ER 57). To counter, California Coalition added the detail into new Counts
3 and 4, and additional nonfrivilous argument throughout the complaint, identified
as undue influence, duress, fraudulent concealment, obstruct, deter, and
impede, and thwart. See, e.g., FAC 466, 830, 1018, 1026, 1110, 1113.
Counts 3 and 4 are detailedto argue against the courts expressed
predisposition to dismiss on statute of limitations bars. The counts detail the
collaboration between the Stuart Assault Coordinators and the City Attorneys
Office in a retaliatory prosecution for harassing judges in the Malicious
Prosecution (Count 3), the several False Imprisonments (ER 183-198), and the
post-filing Nesthus Obstruction of Justice (Count 4) to extend accrual dates into
September, 2013. Compliant with the courts instructions to plead plausible facts,
the counts are detailed to satisfy Twombly.
Because these facts also support claims against the entities causing the
obstruction, duress, and undue influence, the FAC adds new parties (City Attorney
Defendants and Nesthus Defendants) and claims (3.1-3.6 and 4.1-4.5) on the facts
as permitted under Rules 18(a), 20(a)(2)(A) and (B). As above, the civil rights
claims in Counts 3 and 4 are expressly limited to non-immune acts. FAC 350,
etc. The same facts also form the basis of several racketeering counts 1-15 to which
immunity is not a defense.
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8. New Obstruction of Justice Count

The FAC includes a new Count 4 totaling nine pagesThe Nesthus
Obstruction of Justicebased on events occurring after the August 20, 2013
complaints filing. The Count alleges these facts as a continuation of the pattern of
harassment alleged in the Complaint. The facts also support the FACs racketeering
enterprise allegations, are predicate crimes, and are central to California Coalitions
continuing conspiracy theory for statute of limitations defenses. They are properly
joined in the same action. See Fed.R. Civ.P. 20(a)(2). The Count adds nine pages.
9. Amendments the Court Expected but Were Not Made
The district court initially instructed the FAC damn well not be more than 30
pages long (ER 61). California Coalition could not comply with this instruction
because most amendments required lengthening the pleading. Mr. Webb achieved
admission pro hac vice in January with the filing of the FAC, curing California
Coalitions representation issue and alleviating the need to disentangle (ER 55)
individual and corporate claims. The court acknowledged now that theres counsel,
that in and of itself is appropriate. ER 24.
D. The Omnibus Motion to Dismiss
Defendants coordinated vigorous attack in a single Omnibus Motion to
Dismiss (Omnibus) (Doc. No. 131), eighteen separate joinder motions, and
about fifteen replies, totaling around 250 pages of attack. Doc. Nos. 134-152, 162181, 183-188. Defendants attacked with affirmative and pleading defenses including
statute of limitations, Rooker-Feldman, Noerr-Pennington, Eleventh Amendment,
state action, personal jurisdiction, venue, standing, judicial, prosecutorial, quasijudicial, and social worker immunities, Heck v. Humphries, a California state law
litigation privilege, a domestic relations exception to diversity jurisdiction,
prosecutorial discretion, proximate cause, plausibility under Twombly, particularity
under Rule 9(b), government tort claim/exhaustion, capacity, statute-specific RICO,
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Lanham Act, UCL, and declaratory judgment defenses. See comprehensive list at
Doc. No. pp.2-3. Appellants jointly opposed. Doc. Nos. 161 (Opposition), 163
(Request For Judicial Notice), 164 (Motion to Take Early Discovery), 166
(Objections and Motion to Strike), 183 (Objections and Motion to Strike New Matter
In Replies). The Administrative Office of the Courts and San Diego County
Superior Court jointly filed a motion for Rule 11 sanctions. Doc. No. 160.
E. The Dismissal With Prejudice
The court took the matter off hearing calendar and on July 9, 2014 dismissed
with prejudice on a single ground not noticed in the Omnibus: simple failure to
comply with Rule 8(a)(2). ER 4. The short order (ER 6-12) indicates the court found
none of defendants noticed grounds for dismissal persuasive (ER 10). The court
instead undertook independent analysis under Rule 8(a)(2), finding the FAC (1) is
even longer than the original and remains unmanageable, argumentative, confusing,
and frequently incomprehensible (ER 10), (2) contains claims so implausible as to
be offensive (ER 8), and (3) contains unique acronyms, defined terms, and terms
with no discernable meaning (ER 8). The court did not analyze dismissal as a
sanction under Rule 41(b) likely because California Coalition objected and moved
to strike that portion of the Omnibus ER 70-104; Sec. VI.B.2, infra.
The Omnibus was the first round of attacking the complaint for all defendants
except the Commission and Superior Court defendants. Yet the court refused
California Coalitions multiple requests for leave to amend, reasoning Due to
appellants inabilityor unwillingnessto file a complaint that complies with Rule
8, the court finds that granting further leave to amend would unduly prejudice
defendants. ER 11; Sec. VI.B.5, infra.
The court denied appellants pending Motion for Preliminary Injunction (Doc.
No. 109), and denied Defendants motion for Rule 11 sanctions (Doc. 160) reasoning
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the court does not conclude that plaintiffs filing was made solely for the purpose
of harassing the defendants or in contempt of the courts order to file a Rule 8
compliant pleading. ER 11-12.
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SUMMARY OF ARGUMENT
The Honorable Gladys Kessler, Senior Judge, United States District Court for
the District of Columbia, in the preface to her 1,683-page Final Opinion in the
fifteen-year-long United States v. Phillip Morris tobacco industry RICO litigation
determining that tobacco product producers, scientific research firms, public
relations firms, and their outside lawyers engaged in a fifty-year-long racketeering
enterprise to conceal the lethal effects of smoking wrote:
Courts must decide every case that walks in the courthouse door, even when
it presents the kind of jurisprudential, public policy, evidentiary, and case
management problems inherent in this litigation.
Regarding the role of lawyers in this fifty year fraud scheme, Judge Kessler
concluded:
What a sad and disquieting chapter in the history of an honorable and often
courageous profession.
United States v. Philip Morris, 449 F.Supp. 2d 1, 29 (2006).
The $50 billion annual divorce industry is a ravenous parasite on California
families and children which has captured the public and private processes for
resolving domestic disputes, perverted their legal functioning to the industrys
advantage, and monopolized the marketplace to exclude competitors offering legal,
efficient, and far healthier alternatives to the divorce industrys debaucherous sham.
To engage the obscene wealth and power of this orgiastic public-private enterprise,
California Coalition marshals the heavy artillery 7 of racketeering and civil rights
United States v. Frega, 179 F.3d 793 (9th Cir. 1999).

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conspiracy laws, which notoriously require complex pleading, and pose unusual case
management challenges in the district court. MTJN Exs.1-4. The complaints at
issue are lengthy and detailedas they must be. The district court dismissed the
FAC sua sponte on insufficient grounds not properly noticed or briefed in the
Omnibus round because defendants failed to mount even a single persuasive attack
in their mountain of specious paperwork. In dismissing, the district court construed
Rule 8(a)(2) contrary to the unambiguous language of the rule, criticizing length,
argument, verbosity supportive detail, and multi-theory claimsnone of which
may be prohibited by law.
The dismissal with prejudice follows from the courts improvident grant of
Superior Courts initial Rule 12(b)(6) motion, which attacked the complaint on Rule
8 clarification issues that are not enabled through a Rule 12(b)(6) motion. Rather
than deny the motion on defendants unwise insistence on dismissal with prejudice,
the court dismissed with leave to amend, instructing California Coalition to plead
plausible facts and nonfrivolous argument, imposing illegal restrictions on
pleading, and repeatedly threatening Rule 11 sanctions for failure to complyat a
first hearing. California Coalition complied as lawfully able, amending to plead
plausible facts and nonfrivilous argument, unavoidably protracting pleading.
Both complaints satisfy the sole purpose of Rule 8to provide defendants notice of
the legal theories and factual foundations asserted. The court and defendants cannot
deny they had noticethey mounted hundreds of pages of pointed, aggressive attack
in both pleading rounds.
The district court applied a startling scope of judicial immunity to claims
against defendants in their judicial capacity as officers of the court, running the
family court system. (ER 38), citing Ashelman v. Pope, 793 F.2d 1072, 1075 (9th
Cir. 1986). ER 53. Ashelmans scope of immunity is starkly inconsistent with
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controlling Supreme Court authority which has repeatedly admonished that the
freewheeling policy analysis contained in Ashelaman is error. See Rehberg v.
Paulk, 132 S.Ct. 1497 (2012). Moreover, on any construction of judicial immunity,
the affirmative defense cannot be derived from the face of the Complaint because it
pleads around immunities and admits no defense.
Similarly, the district court granted the Commission on Judicial Performance
Eleventh Amendment immunity without analyzing the Commissions relationship
the State of California, improperly relying on a single district court decision, Ricotta
v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998), that did not adjudicate the
critical issue.
The court repeatedly backed its courtroom colloquy with vivid threats of Rule
11 sanctions, including improperly threatening California Coalitions local counsel
with sanctions as he was attempting to appear in the case. This threat so startled local
counsel that he immediately withdrew his engagement, depriving California
Coalition of highly-competent local counsel, amounting to deprivation of an
impartial tribunal.
The district court erroneously denied California Coalitions two motions for
preliminary injunction without hearing or analysis, including (1) a motion for
preliminary injunction regarding domestic violence restraining orders, and (2) a
motion for preliminary injunction to protect appellants witnesses from ongoing
harassment by the San Diego County Superior Courts general counsel, Kristine
Nesthus, who directed San Diego County Sheriffs Department detectives and
California Highway Patrol officers to threaten a half-dozen of California Coalitions
members, affiliates, process servers, and counsel.
Finally, in light of California Coalitions defeat of San Diego County Superior
Courts two cookie cutter Rule 11 motions based on the same grounds as their two
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unsuccessful motions to dismiss, the district courts denial of counter-sanctions to

California Coalition was error.
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ARGUMENT
A. Standards of Review
Compliance with Rule 8 is essentially a question of law. In re Dominguez,
51 F.3d 1502, 1508 (9th Cir. 1995). Review of a district courts interpretation of a
statute is de novo. United States v. McFall, 558 F.3d 951, 956 (9th Cir. 2009).
Review of an involuntary dismissal under Rule 41(b) is for abuse of discretion, but
to dismiss for a failure to comply with Rule 8, a court must necessarily consider the
legal question of whether the district court correctly dismissed without prejudice the
original complaint on Rule 8 grounds. Hearns v. San Bernardino Police Dep't, 530
F.3d 1124, 1129 (9th Cir. 2008); United States v. Taylor, 487 U.S. 326, 336 (1988).
A district court by definition abuses its discretion when it makes an error of law.
Koon v. United States, 518 U.S. 81, 100 (1996); Flexible Lifeline Sys., Inc. v.
Precision Lift, Inc., 654 F.3d 989, 994 (9th Cir. 2011). A dismissal for failure to
state a claim is reviewed de novo. Abagnin v. AMVAC Chemical Corp., 545 F.3d
733, 737 (9th Cir. 2008).
Exercise of discretion in denying leave to amend is
reviewed strictly. Klamath-Lake Pharm. v. Klamath Med. Serv. Bureau, 701 F.2d
1276, 1292 (9th Cir.).
Eleventh Amendment immunity is a question of law reviewed de novo. Doe
v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 838 (9th Cir.1997). Judicial
immunity is a question of law reviewed de novo. Miller v. Davis, 521 F.3d 1142,
1145 (9th Cir. 2008). Review of a refusal to grant preliminary injunction is for abuse
of discretion. Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981). Review of a
refusal to grant Rule 11 sanctions is for abuse of discretion. Retail Flooring Dealers
of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir.2003).
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B. The District Courts July Dismissal with Prejudice Was Error

1. The Court Cannot Dismiss Sua Sponte with Prejudice For
Curable Rule 8 Issues
Though defendants in the Omnibus sought dismissal with prejudice as a
sanction under Rule 41(b), the district court bypassed defendants analysis, instead
analyzing and dismissing under Rule 8(a)(2) alone. ER 10-11. The court rejected
the noticed grounds in the Omnibus section analyzing under Rule 41(b) after
California Coalition moved to strike (ER 70-104) that analysis because it was based
on an evidentiary declaration of Stephen Lucas, lead counsel on the Omnibus (Doc.
Nos. 131-1, 7-13; 161, 47; 162; 164. Mr. Lucas proffered percipient testimony and
expert opinion in support of a pleading motion, offering to testify that because he
could not comprehend the FAC, it violated Rule 8. Doc. No. 131-2; ER 70-104.
California Coalition was entitled to cross examine Mr. Lucas to obtain
admissions refuting his opinion, and filed an emergency motion for leave to take
early discovery and call him to testify at hearing. Doc. No. 164. The court denied
the motion, finding a lack of good cause, but conceded it would ignore material
inappropriate at this stage for consideration. ER 14. California Coalition thereafter
offered identification of inappropriate material consisting of most of the Lucas
declaration and Rule 41(b) analysis of the Omnibus, and moved to strike the entire
Rule 41(b) section. Doc. Nos. 166, 166-1. The court did not rule on California
Coalitions motion, but the July order does not reference Rule 41(b) or the Omnibus
analysis, indicating the court simply ignored the Omnibus Rule 41(b) section. ER
6-12.
With the Omnibus decapitated, the court embarked independent analysis
under Rule 8 alone, inserting issues not raised by the Omnibus, including (1) the
plausibility of certain RICO predicate crime allegations (ER 8), (2) allegations
against Defendants who are referenced only in several pages such as Levin and
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Jahr (ER 7), (3) an inconsistency in the FACs designation of which defendants are
in the City Attorney Defendants group targeted in Count 3, and (4) the use of
acronyms and defined terms. ER 8-9.
In dismissing on new issues and only under Rule 8, the court failed to provide
notice and opportunity. See Zinermon v. Burch, 494 U.S. 113, 126 (1990). At a
minimum due process requires notice of a courts intent to dismiss an action, the
grounds on which the court intends to dismiss, and opportunity to oppose the
dismissal. Nelson v. Adams USA, Inc., 529 U.S. 460, 465-68 (2000); Lee v. City of
Los Angeles, 250 F.3d 668, 683 (9th Cir. 2001).
Further, the dismissal for Rule 8 alonewithout analyzing under an enabling
rule such as 41(b)is error. Rule 8(a)(2) is a standard for pleading a claim; it is not
self-enabling. See FNB Bank v. Park Nat. Corp., CIV.A. 13-0064-WS-C, 2013 WL
1748796 (S.D. Ala. Apr. 23, 2013); Wright Miller, 5 Federal Practice &
Procedure 1203 Relationship Between Rule 8 and Other Federal Rules (3d ed.).
A district court may dismiss a case with prejudice only on the same grounds as
parties are authorized to move. Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991);
Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). Because a party cannot move
under Rule 8 alone, the district courts dismissal on Rule 8 alone is error.
Finally, any sua sponte dismissal with prejudice is error unless the plaintiffs
cannot possibly win relief. Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir.1981).
The court made no finding that California Coalition cannot possibly win relief
required under Wong, and could never reach such a conclusion 8 because the issues
8
At hearing the district judge acknowledged sua sponte dismissal would be

inappropriate. ER 27 ([T]o be quite frank, I've had a moments where I was thinking
about just sua sponte dismissing it. However, my review of ninth circuit case law on
the subject suggests that I must at least find out from the defendants if they can
understand the complaint and answer it, and respond to your motion, not my own
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raised by the court are minor pleading formalities, all curable by amendment. See
VI.B.6, infra.
2. Dismissal of the First Amended Complaint under Rule 41(b)
Would Also Be Error
In the event this Court overlooks the due process violation to independently
analyze dismissal as a sanction, it will find insufficient basis to impose a sanction.
A court dismissing with prejudice under Rule 41(b) must make specific findings that
plaintiff fails to comply these rules or a court order and regarding the public's
interest in expeditious resolution of litigation; the court's need to manage its docket;
the risk of prejudice to the defendants; the public policy favoring disposition of cases
on their merits; and the availability of less drastic sanctions. Thompson v. Housing
Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). ER 100-121. Terminating
sanctions are proper only where at least four [of the five] factors support dismissal.
Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998).
California Coalition established below that (1) the FAC complied with Rule
8 and all relevant orders, (2) defendants suffer no prejudice by having to read the
complaint, (3) public policy favors adjudication of the merits of this dispute, which
is directed to remedy fraudulent and extortionate practices of public officials and
legal services to California families state-wide, and (4) less harsh alternatives such
as simple amendments are available and appropriate at this early stage. ER 100-121.
The courts July Order (ER 6) ignored this analysis, failing to make explicit
findings concerning each factor necessary to dismiss with prejudice. Yourish v.
Calif. Amplif., 191 F.3d 983, 990 (9th Cir.1999). In ignoring this analysis the court
failed to analyze the Thompson factors. This error is also sufficient to reverse.
motion.).
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a. The District Court Construed Rule 8(a)(2)s short,

plain Language Contrary to the Face of the
Unambiguous Rule
The district court construed Rule 8(a)(2) inconsistent with Rules 8(d) and (e)
to render restrictions Rule 8 does not give, such as prohibitions against concepts such
as prolixity, argument, and length, or that a complaint be manageable. The court
lifted these concepts from pre-Twombly decisions of this Court in which a plaintiff
was out of court proffering return by amendment, or where a disorganized complaint
defeated even a single claim. ER 46-47 (argumentative, prolix, replete with
redundancy, and largely irrelevant; McHenry v. Renne, 74 F.3d 1172, 1177-80 (9th
Cir. 1996); verbose, confusing and conclusory, Nevijel v. North Coast Life Ins.
Co., 651 F.2d 671, 674 (9th Cir. 1981); or impossible to designate the cause or
causes of action attempted to be alleged in the complaint, and Schmidt v. Herrmann,
614 F.2d 1221, 1223 (9th Cir. 1980)). The court concluded from these cases that the
FAC was defective because it contained verbiage, argument, and rhetoric (ER 49),
prolix, replete with redundancy, verbose, (ER 10, 52), and surplusage and
argumentative text (ER 11, 47).
These cases construe Rule 8 is contrary to the unambiguous meaning of the
Rule. We give the Federal Rules of Civil Procedure their plain meaning. . . . When
we find the terms ... unambiguous, judicial inquiry is complete, Pavelic & LeFlore
v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989); In re Ioane, 227 B.R.
181, 183 (B.A.P. 9th Cir. 1998). Rule 8(a)(2) requires merely that a pleading contain
a short, plain statement of the claim showing that the pleader is entitled to relief.
It is a threshold, not a ceiling; it prohibits nothing. The liberal notice pleading of
Rule 8(a) is the starting point of a simplified pleading system, which was adopted to
focus litigation on the merits of a claim. . . . The Federal Rules reject the approach
that pleading is a game of skill in which one misstep by counsel may be decisive to
the outcome and accept the principle that the purpose of pleading is to facilitate a
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proper decision on the merits. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514
(2002). See also Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1132 (9th
Cir. 2008). Complaints just launch the case. Hoskins v. Poelstra, 320 F.3d 761,
764 (7th Cir. 2003). No technical form is required. Rule 8(d). Rule 8 does not
require a claim to plead a prima facia case, recite elements, track a jury instruction,
or be persuasive. Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014) (A
complaint might sometimes contain sufficiently detailed facts to allow for a qualified
immunity inquiry, but such is not the case here.). Rule 8 is a lower threshold of
pleading than even the State of Californias liberal Code of Civil Procedure, which
governs complaints as a whole, and requires complaints to be certain and
intelligible. Cal.C. Civ.P. 430.10(f).
Claims may be pled in combination, in the alternative, and on inconsistent
facts or theories, and the pleading is sufficient if any one of them is sufficient. Id.
(emphasis added). [I]n the context of a multiparty, multiclaim complaint each
claim should be stated as succinctly and plainly as possible even though the entire
pleading may prove to be long and complicated by virtue of the number of parties
and claims. Wright & Miller, 5 Fed. Prac. & Proc. Civ., 1217 (3rd ed.).
Pleadings must be construed to do justice. Rule 8(e)(emphasis added).
The FAC contains many prima facia claims complying with Rule 8. A
prima facia case under section 1983 requires (1) action under color of law and (2)
a deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor,
451 U.S. 527, 535-37 (1981). A racketeering claim under 18 U.S.C. 1962(c)
requires (1) the conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering
activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1985). See Sec. VI.C.3
supra.
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The court improperly ignored California Coalitions analysis of cases

distinguishing length or prolix style from intelligibility, or curable by amendment.
Doc. No. 161, p. 44-46. See, e.g., Karim-Panahi v. Los Angeles Police Dep't, 839
F.2d 621, 623 (9th Cir. 1988); Carrigan v. California State Legislature, 263 F.2d
560 (9th Cir. 1959); Sathianathan v. Smith Barney, Inc., C 04-2130 SBA, 2004 WL
3607403 (N.D. Cal. June 6, 2005); Westways World Travel v. AMR Corp., 182 F.
Supp.2d 952, 957 (C.D. Calif. 2001). Ignoring appellants authority was error; due
process guarantees opportunity to be heard, not ignored. Zinermon v. Burch, 494
U.S. 113, 126 (1990).
b. Defendants and The District Court Demonstrate They
Understood Most Claims, Satisfying Rule 8
Rule 8s functional purposeto give noticeis satisfied if defendants
demonstrate ability to defend. See Morgan v. Kobrin Sec., Inc., 649 F. Supp. 1023,
1027 (N.D. Ill. 1986) (Given Kobrin's well-briefed Rule 12(b)(6) motion, it is clear
he is fully apprised of the charges against him.). At hearing and in orders the district
judge identified and analyzed many claims, even analyzing defenses to claims and
dismissing some claims outright: See ER:
42, 44 plaintiffs assert approximately 36 causes of action;
46 plaintiffs assert about 75 claims in their first 15 counts;
57 you have a claim against Mr. Doyne;
57 those causes of action are barred as to every defendant;
24-25 blending of causes of action within claims;
58 the causes of action that arise out of the April 15, 2010 incident;
27 There are certainly 1983 claims against entities that you cant have
a 1983 claim against.;
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8 well over fifty defendants (including judges, attorneys, doctors,

social workers, and law-enforcement officers) of conspiring to commit
racketeering activity . . .;
35-39, 40-42 and many more examples.
Defendants too evidenced recognition of dozens of claims sufficient to mount
hundreds of pages aggressive attack on the merits through the Omnibus, joinders,
replies, and surreply identifying dozens of specific claims (Doc. Nos. 131-153, 167181, 184-187). Their protests of complete incomprehensibility cannot co-exist with
their demonstrated ability to attack. These behaviors constitute admissions of notice
and comprehension sufficient to satisfy Rule 8.
c. Practice Under Rule 8(a)(2) Post-Twombly Requires
Complex Pleading
The district courts reliance on McHenry, Nevijel, and Schmitd is further error
as these cases are diminished after Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548
(2007). Judge Posner recently observed:
Since a plaintiff must now show plausibility, complaints are likely to be
longerand legitimately sothan before Twombly and Iqbal. And anyway
long before those decisions judges and lawyers had abandoned any effort to
keep complaints in federal cases short and plain. Typically complaints are
long and complicated. . . . The Forms Appendix to the civil rules, with its
beautifully brief model complaints, is a fossil remnant of the era of reform
that produced the civil rules in 1938 . . .
Unintelligibility is distinct from length, and often unrelated to it. A onesentence complaint could be unintelligible. The word short in Rule
8(a)(2) is a relative term. Brevity must be calibrated to the number of claims
and also to their character, since some require more ex planation than others
to establish their plausibility and the Supreme Court requires that a
complaint establish the plausibility of its claims. . . . But a complaint may be
long not because the draftsman is incompetent or is seeking to obfuscate . . .
but because it contains a large number of distinct charges.
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Kadamovas v. Stevens, 706 F.3d 843, 844-45 (7th Cir. 2013). Many courts have
acknowledged this shift. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521
F.3d 1097, 1104 (9th Cir. 2008); Anthony v. Chosen One Props., No. CIV. 2:092272 WBS KMJ, 2009 WL 4282027, at *7 (E.D. Cal. Nov. 25, 2009); Elan
Microelectronics Corp. v. Apple, Inc., No. C 09-01531 RS, 2009 WL 2972374, at
*2 (N.D. Cal. September 14, 2009); Johnson v. Van Boening, 2009 WL 1765768
(W.D. Wash. June 18, 2009); Wiggins v. Cosmopolitan Casino of Las Vegas, 2:11CV-01815-ECR, 2012 WL 3561979 (D. Nev. Aug. 15, 2012). See also BBL, Inc. v.
City of Angola, 2013 WL 2383659 (N.D. Ind. May 29, 2013) (Prolixity is a bane of
the legal profession but a poor ground for rejecting potentially meritorious claims.
Fat in a complaint can be ignored, confusion or ambiguity dealt with by means other
than dismissal.); Henderson v. Marker, 2014 WL 886833 (N.D. Ill. Mar. 5, 2014).
The FAC meets Judge Posners test: It is lengthy with many claims and
enterprises under complex statutes; but even if not a model of clarity, it is not
incomprehensible.
The district courts characterization of the FAC as only
frequently incomprehensible (ER 10) (emphasis added) is contested, but is a

concession sufficient to reverse.
The district court cited a single post-Twombly case from this CourtCafasso,
U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011). Cafassos
dispositive issue was not Rule 8, but whether breach of contract was cognizable as
a false claim under the False Claims Act (31 U.S.C. 3729) and Rule 9(b). Id. at
1054-59. After three amendments and two years of acrimonious discovery,
plaintiff whistleblower admitted in discovery that she could only allege breach of
contractnot fraud, yet she claimed the Act recognized breach as a false claim.
General Dynamics brilliantly moved for Rule 12(c) judgment on the operative
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complaint based on the abandonment. Id. at 1052. The district court found plaintiff
abandoned her claim (Rule 8) as to a false claim (Section 3279) and dismissed.
Plaintiff sought to return to court by proffering a 733 page proposed third
amended complaint under Rule 15. The district court refused leave primarily on
plaintiffs abandonment, but also prior litigation misconduct and the obscene length
and disorganization of the proposed amendment. This Court affirmed on the false
claim issue finding the complaint stated not a single claim in 733 pages. Id. at 105760. See MTJN Ex. 5.
Cafassos bizarre facts are not present here: At this early stage the FAC is a
first pleading to most defendants. It is lengthy at 250 pages, yet necessarily so as it
asserts many claims against numerous parties under complex statutes. It is logically
organized into counts and claims broken down by defendants, groups of related
defendants, and theories, and contains relevant detail to establish plausibility of
conspiracies and enterprises as specifically directed by the district court. Though it
could be ground finely to resemble a discovery response, defendants have shown an
abundant ability to identify and attack specific cognizable claims on dozens of
issues. Cafasso is inapposite, and the district courts heavy reliance on it was error.
d. The District Courts Construction Of Rule 8 Violates
The Rules Enabling Act and the U.S. Constitution
The district courts construction of rule 8 to reject argument and
surplusage deprives California Coalitions fundamental rights of due process,
petition, and expression. A district courtby rule, policy, or commandis
restrained as any government from restricting the rights, privileges, and immunities
of speech, petition, due process, and jury trial. Hanna v. Plumer, 380 U.S. 460,
464-65 (1965). The Rules Enabling Act commands: Such rules shall not abridge,
enlarge or modify any substantive right. 28 U.S.C.A. 2072(b). A district
judges authority in giving orders on amendment is similarly restricted. All said
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about the rules of a district court must of course apply a fortiori to the rules of an
individual judge. 1988 Commentary to 28 U.S.C.A. 2071 (West).
Substantive rights include rights of petition, expression, due process, and
jury trial. United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir.1996). The right
of access to the courts . . . is founded in the Due Process Clause. Wolff v.
McDonnell, 418 U.S. 539, 579 (1974). The right to seek judicial redress is also
guaranteed in the First Amendment. California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972). Rights of access are protected by the privileges
and immunities clause of Article IV of the U.S. Constitution. Chambers v. Baltimore
& O. R.R., 207 U.S. 142, 148 (1907) (The right to sue and defend in the courts is
the alternative of force. In an organized society it is the right conservative of all other
rights, and lies at the foundation of orderly government. It is one of the highest and
most essential privileges of citizenship.).
A complaint is perhaps the most important of the many petitioning events in
litigation. Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009). A
complaint against government officials the quintessential petition. White v. Lee,
227 F.3d 1214, 1227 (9th Cir. 2000). Even chilling such petition is illegal. Id. at
1224. A complaint is legitimate vehicle for alerting law enforcement, policymakers,
interested third parties, and the public to lawlessness of public officials. Nebraska
Press Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Brennan, J., concurring in
judgment) ([E]vidence implicating a government official in criminal activity goes
to the very core of matters of public concern). Where prosecutors and judges are
accused of criminal behavior the publics interest in petition and expression is at its
apex. Morrison v. Olson, 487 U.S. 654, 727-728 (1988). It is as much his duty to
criticize as it is the official's duty to administer. New York Times Co. v. Sullivan,
376 U.S. 254, 282-83 (1964) (internal citations omitted).
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Restrictions to protect adjudicative process must survive high scrutiny.

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (expression posing a
substantial likelihood of material prejudice); Burlington N. R.R. v. Woods, 480
U.S. 1 (1987); Bus. Guides, Inc. v. Chromatic Commc'ns Enterprises, Inc., 498 U.S.
533, 558 (1991)(sanctions permitted if insubstantial burden). Even offensive or
disruptive advocacy is protected. Standing Comm. on Discipline of U.S. Dist. Court
for Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1436-37 (9th Cir. 1995).
A complaint enables important due process functions throughout the litigation
such as defining the nature and scope of dispute, duties of disclosure, (see Rule 26).
It is a legitimate form of identification illegal behavior under settled law, but for
plaintiffs perspective of what should be illegal. See, e.g., Neitzke v. Williams, 490
U.S. 319, 328 (1989) (Close questions of federal law, including claims filed
pursuant to 42 U.S.C. 1983, have on a number of occasions arisen on motions to
dismiss for failure to state a claim.). It is a vehicle to narrow issues, discover a
defendants knowledge of facts, position, and admissions under Rules 8(b) and (c).
It frames Rule 12(c) or 56 motions, and sets foundation for relevance and issues at
trial and on appeal.
Here, Stuart filed the original Complaint as a verified pleading and evidentiary
foundation for an immediate Rule 65 motion for a Section 1514 witness harassment
restraining order. Prohibitions on the content of testimony are rarely legal. Lane v.
Franks, 134 S. Ct. 2369, 2379 (2014).
Construing Rule 8 to impose restrictions on verbiage, rhetoric,
argument, certain, manageable and similar terms imposes invalid vague, and
overbroad restrictions on fundamental rights. Wunsch at 1119. A pleaders error in
guessing at vague concepts risks pain of dismissal with prejudicea deprivation of
a Fifth Amendment right to remedy (See Marbury) and Seventh Amendment right
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to jury trialRule 11 sanctionsa deprivation of property and right to jury trial

and in the district courts contemplation even a citation for contempta deprivation
of liberty. ER 12. Vague restrictions are directly contrary to Rule 8(d): No
technical form is required.
The district courts expansion of Rule 8 to burden California Coalitions
fundamental rights and privileges with extra-textual construction was an egregious
deprivation of fundamental rights, a violation of the Rules Enabling Act, and error.
e. The Length and Content of the FAC are Pled to
Comply with Order And Directly Relevant to Defeat
Attack
The specificity pled at direction of the court on December 19, 2013 (ER 6465) and to refute attacks by defendants accusing claims of implausibility (section
IV.C.6-7, supra) were apparently effective, as most defendants in the Omnibus
round withdrew or modified their initial attacks. The July sua sponte dismissal on
Rule 8 alone indicates the court was unpersuaded by any defendants attacks.
Though the court failed to identify pleading it considered verbiage etc., California
Coalition could explain why the detail was required under Twombly, and identify the
relationships between what the court took as surplus and FAC allegations. Whether
verbose, lengthy, argumentative, or otherwise, the FAC was on point, consistent with
court order, and highly effective in resisting vigorous attack by San Diego Countys
most accomplished jurists and their teams of lawyers.
f. Acronyms and Defined Terms Do Not Violate Rule 8
The district courts criticism of unique acronyms, defined terms, and terms
with no discernable meaning cannot foul Rule 8 or any rule. ER 8. Use of
acronyms is commonparticularly in complex litigation. See Motion To Take
Judicial Notice Exhibits 1-4.
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In support of its anti-acronym ruling the district court cited U.S. ex rel. Garst
v. Lockheed-Martin Corp., 328 F.3d 374 (7th Cir. 2003) in which Judge
Easterbooks mentioned acronyms in passing dicta, focusing vitriol on the four failed
attempts to plead even a single claim. Id. at 377. Kadamovas, supra, later revisited
the decision, synthesizing criticism by referencing Twomblys increased burdens.
Kadamovas at 844-845. Garst acknowledged lengthy complaints asserting many
claims do not foul Rule 8: A concise statement of the claim illustrated by 400
concrete examples of fraud would be one thing Garst at 379.
g. Allegations against Jahr, Levin, and Peonage
Predicates Are Properly Pled; the District Courts Sua
Sponte Attack Was Un-Noticed and Must Be Resolved
through A Moss I Analysis
The district courtalonefound offensive the FACs assertion of peonage
and slavery RICO predicates and allegations against Jahr and Levin. ER 7-8. Both
attacks were asserted improperly sua sponte. See Sec. VI.B supra. If given notice
and opportunity, California Coalition would have referenced the practice of listing
predicate crimes by an enterprises as a permissible means of establishing enterprise
elements of continuity and pattern under 18 U.S.C. 1962(c). Sedima, S.P.R.L.
v. Imrex Co., 473 U.S. 479, 479 (1985). A plaintiff need not accuse any defendant
of a specific crime comprising the pattern. See, e.g., United States v. Philip
Morris, 566 F.3d 1095, 1106 (D.C. Cir. 2009) (non-accusing predicates properly
pled to establish continuity and pattern of racketeering activity, the RICO enterprise
and conspiracy, and Defendants participation in the enterprise.).
The peonage predicates are properly pled as foundation for pattern
allegations under 18 U.S.C. 1961(5).
They do not accuse well over fifty
defendants (including judges, attorneys, doctors, social workers, and lawenforcement) of conspiring to commit the predicates. ER 8. No defendant attacked
the peonage predicates because no defendant was accused.
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In addition, the courts sua sponte attack that Jahr and Levin are mentioned in
a few paragraphs (ER 7) is accurate but no foul. RICO enables plaintiffs to plead a
sweeping dragnet of enterprise liability to capture any entity associated with or
benefiting from organized crime, including operators at the top such as Mr. Jahr, and
street-level participants such as Ms. Levin. See, e.g., Reves v. Ernst & Young, 507
U.S. 170, 187 (1993); Salinas v. United States, 522 U.S. 52 (1997); Pinkerton v.
U.S., 328 U.S. 640 (1946); Smith v. Berg, 247 F.3d 532 (3rd Cir. 2001) (followed in
United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004)).
Both attacks are also plausibility attack which must be analyzed under Moss
I. 9 See ER 103-106.
3. Defendants Proved No Prejudice
To achieve dismissal as a sanction defendants must show prejudice.
Thompson, supra. The district court found that defendants were prejudiced in having
to respond to the FAC because (1) they would be required to read a lengthy
complaint asserting many claims against many defendants alleging several
conspiracies and enterprises to understand who is suing who for what, and (2)
plaintiffs noncompliance harms litigants in other matters pending before the
court. ER 10-11, 61. Prejudice is has been defined as a serious impairment of
California Coalition would defend a proper plausibility attack referencing

the threat of contempt under Moss v. Superior Court (Ortiz), 17 Cal. 4th 396, 401
(1998) as unconstitutional ab initio under Cal. Const. Art. I, 6, 7(a), 10, 16, 26,
Oakland Paving Co. v. Hilton, 69 Cal. 479, 484 (1886) and Katzberg v. Regents of
Univ. of California, 29 Cal. 4th 300 (2002). Therefore any act, threat, attempt, or
conspiracy to enforce family support laws by contempt is an actionable crime of
peonage or slavery under title 18 U.S.C. 1581 et. seq., as construed through United
States v. Kozminski, 487 U.S. 931 (1988); United States v. Alstatt, 858 F. Supp. 2d
1032, 1045 (D. Neb. 2012); United States v. Sabhnani, 599 F.3d 215, 243 (2d Cir.
2010).
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investigation or defense. Couch On Ins., 193:50 (3rd ed. 2014). The burden of
reading a complainteven one drawn under complex enterprise and conspiracy
pleading requirementscan never be a serious impairment for the dozens of
lawyers as skilled as those present in this litigation.
Defendants evidence of prejudice was based entirely on Mr. Lucas
declaration, which the district court should have disregarded. See ER 70-104; Doc.
No. 164. The district court apparently considered the interests of litigants in other
matters and that federal judges have better things to do. ER 11. Balancing
harm between litigants in different cases is inappropriate. Each litigant is entitled
to equal protections, privileges, and immunities, including the district courts kind
attention.
Ex parte Virginia, 100 U.S. 339, 360 (1879) (equal protection
deprivation); Los Angeles Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992)
(delays in civil proceeding a due process violation); Satterlee v. Kritzman, 626 F.2d
682, 683 (9th Cir. 1980) (delayed habeas proceedings).
California Coalition submits that the honesty of legal and social services
provided to families and children in the crisis of a domestic dispute is at least as
important as any other matter on the district courts docket, and challenging though
this case certainly will be, the district court must equally manage every case that
walks in the courthouse door. United States v. Philip Morris, 449 F.Supp. 2d 1, 29
(2006).
4. California Coalition Repeatedly Offered to Amend
The district courts conclusion that California Coalition was unwilling to
amend (ER 4, 11) ignores repeated expressions of willingness and ability to amend.
See M&C, Doc No. 21-1, Ex. A; Doc. 161 pp. 15:7-11 (Though the present FAC
satisfies the relevant notice standard of Rule 8, and though defendants may far more
efficiently resolve these issues through discovery, Plaintiff represents a present
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ability, though no desire, to separate multiparty and multi-theory claims into

numerous independent claims, and hereby request leave to amend should the Court
determine such protraction is necessary.); 18:2-6; 21:14-16, 22:13-15, 71:27-28,
82:27-28, 97:4-5, 111:5-7, 127:22-23, 131:22-23, 134:25-135:1, 158:10, and 164:46. What the court identified as unwillingness to file a complaint that complies with
Rule 8 (ER 11) appears to follow California Coalitions assertion that the FAC
complies with Rule 8, which California Coalition makes as a matter of right.
California Coalition has always been and remains willing to comply with law.
5. Legitimate Manageability Concerns Directed at the Entire
Complaint are Real, But Not Grounds for Dismissal Irrelevant.
Manageability Issues Must Be Resolved by Means Less Harsh
Than Dismissal with Prejudice
The courts concerns regarding the complaints length and complexity are
real, yet manageability is not relevant to Rule 8, and never grounds for dismissing
a case. Rule 8(a)(2) speaks of a short and plain statement of each claim, not a short
and plain plaading. 1217 Statement of the ClaimShort and Plain, 5 Fed. Prac.
& Proc. Civ. 1217 (3d ed.) (emphasis added); Phillip Morris at 29. Including the
present case, RICO cases may be pesky but courts should not erect artificial
barriersmetaphysical or otherwiseas means of keeping RICO cases of the
federal dockets." Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1529 (9th Cir. 1995).
Moreover, even if the Complaint violated a rule or order, the district court
abused discretion in failing to consider less harsh means to resolve issues.
Thompson, 782 F.2d at 831.
District judges could do more to require that
complaints be cut down to size, . . . we remind the district judge that if the assertion
of different charges against different prison officials in the same complaint is
confusing, he can require the plaintiff to file separate complaints, each confined to
one group of injuries and defendants. Kadamovas v. Stevens, 706 F.3d 843, 846
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(7th Cir. 2013); Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (judges have
many tools.).
Rule 12 provides less harsh remedy for claims not meeting the low threshold
of Rule 8Rule 12(e) or (f) for unclear or scurrilous claims. Kennedy v. Full Tilt
Poker, 2010 WL 1710006 (C.D. Cal. Apr. 26, 2010). If a claim contains a bare
conclusion, a defendant must challenge by traversing the multi-stage analytical
framework set forth in Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) and Moss v. U.S.
Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (Moss I). Available tools include
RICO case statement used within the Southern District (MTJN Ex. 6) and
particularized statements (MTJN Ex. 3).
The courts concerns regarding
acronyms and defined terms (ER 10) could have been resolved by requiring
appellant to provide a definition sheet such as the two the court prepared. ER 8,
fn. 3; ER 42, fn. 2. The court may structure discovery under Rules 26 and 16. This
district judge maintains a chambers rulenot imposed in this actionrequiring
parties to meet and confer before bringing dispositive motions. See Civil Case
Procedures for Hon. Cathy Ann Bencivengo, Ex Parte Motions and Noticed
Motions item E. MTJN Ex. 7. Given defendants refusal to comply with this rule
to meet and confer with Stuart (See M&C), the court may use sanctions to deter
frivolous motion practice when the voluntary amendment Stuart proposed could
have distilled issues.
Leave to amend is appropriate where Stuart pleads in pro seby necessity of
his illegal imprisonment and concerted persecution by defendants to thwart this
action. A pro se litigant must be given leave to amend his or her complaint unless
it is absolutely clear that the deficiencies of the complaint could not be cured by
amendment. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623-24 (9th
Cir. 1988). The district court recognized Stuarts experience in intellectual property
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litigation. ER 31-33. Stuart is certainly aware how generous federal pleading rules
are in operating on the assumption that the factual allegations in the complaint are
true Neitzke v. Williams, 490 U.S. 319, 327 (1989), that no technical form is
required of complaints, and that courts read racketeering complaint even more
liberally. Westways World Travel v. AMR Corp., 182 F. Supp. 2d 952, 957 (C.D.
Cal. 2001) (it is burdensome for a district court to prune a complaint containing
a cognizable claim at the pleading stage.).
The district courts criticism of the complaint and manageability concerns
were not entirely unjustified, yet in granting a dismissal rather less harsh relief was
error.
C. The Superior Courts Initial Rule 12(b)(6) Motion Asserted
Clarification Issues Not Enabling Dismissal
The errors in dismissing the FAC were precipitated by errors in ruling on the
Superior Courts initial motion to dismiss under Rule 12(b)(6). Rule 12(b)(6) the
harsh remedy of dismissal where a complaint (1) lacks even a single a cognizable
legal theory or (2) pleads insufficient facts under a cognizable legal claim.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Neitzke, supra at 329. Rule
12(b)(6) is not an exacting standard; a complaint need not pin plaintiff's claim for
relief to a precise legal theory. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011).
The district courts criticism didnt reach either threshold, instead finding the
complaint fails to clearly identify each separate claim for relief (ER 51) and
confusing, redundant, conclusory, and buries its factual allegations in pages of
generalized grievances about the family courts (ER 52). These findings were
contested, yet even if true were not grounds to dismiss under the rule defendants
asserted: Rule 12(b)(6).
Buried claims are not grounds for dismissal. See Loubser v. Thacker, 440
F.3d 439, 443 (7th Cir. 2006) (this information can be found in the plaintiff's
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complaint, though in disjointed form.). A complaint should not be dismissed if it

states a claim under any theory, even if the plaintiff erroneously relies on a different
legal theory . . . [A] district court need not prune a complaint at the pleading stage.
Westways World Travel v. AMR Corp., 182 F. Supp.2d 952 (C.D. Calif. 2001). The
Complaint averred numerous cognizable legal theories and pled abundant facts in
support of many claims thereunder. Doc. No. 57. Defendants first wave of attacks
list dozens cognizable claims. See Doc. Nos. 16, 22, 23, 48, 49, 50, 51, 52, 53, 54,
62, 67, 73.
Even if defendants complaints of compound claims and verbosity were true,
such complaints are not subject to dismissal. Criticism of unintelligibility are not
properly resolved by Rule 12(b)(6) dismissal, but by relief less harsh such as Rules
12(e) or (f). See, e.g., N. Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010
WL 1499289, at *1 (S.D. Cal. 2010); C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1170,
119091 (E.D. Cal. 2010); Kadamovas, supra. Insisting on dismissal rather than
amendment, defendants brought the wrong motion, and the courts reliance on such
authority to dismisseven with leavewas error. ER 478-483; Doc. No. 21-1, pp.
10-16 (October 28, 2013 Meet and Confer letter M&C). 10
Defendants likely diverted from a Rule 12(e) motion because they would not
have succeeded. A motion for more definite statement is used to provide a remedy
for an unintelligible pleading rather than a correction for lack of detail. N. Cnty.
Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010 WL 1499289, at *1 (S.D.Cal.
Apr.12, 2010). The district court adopted Superior Courts conflation of Rules
12(b)(6) and other rules, effectively permitting defendants to obtain a drastic
remedy of dismissal which they otherwise could not obtain.
10
Defendants and the
Appellants raised the issue in a motion to strike (Doc. Nos. 21, 57) which
the district court denied (ER 38, 54).
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court later capitalized by later claiming a failure to comply with an improvident

order to amend the original complaint. The courts original dismissal under
12(b)(6) was error, precipitating further error in the July dismissal with prejudice.
D. Defendants Did Not Prove Factual Foundations for Judicial or
Eleventh Amendment Immunity
The court erred in granting Commission and Superior Court defendants
affirmative defenses of judicial and eleventh amendment immunity without showing
of foundational facts. A party asserting an affirmative defense must affirmatively
state the defense. Fed.R. Civ.P. 8(c)(1). A defendant may bring a Rule 12(b)(6)
motion based on an affirmative defense in unusual circumstances: Where the face of
the Complaint admits the defense. Jablon v. Dean Witter & Co., 614 F.2d 677,
682 (9th Cir. 1980). The defense must be apparent from the complaint with
certitude. Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008).
Analyzed below, neither the Commission nor the Superior Court Defendants
made any affirmative showing, and the district courts grant of both immunities in
insufficient record was error.
1. The Commission and Its Employees Failed to Establish Status
as a Sovereign
The district court erred in granting Eleventh Amendment immunity because
the Commission failed to establish facts showing its relationship to the State of
California. An entity asserting statehood must show a judgment against it will bind
the state, and that a money judgment would be drawn from the states treasury. Hess
v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 52 (1994); Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89 (1984); Shaw v. State of
California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986).
For individuals, [t]he general rule is that relief sought nominally against an officer
is in fact against the sovereign if the decree would operate against the latter.
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Pennhurst at 102; Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d
1103 (9th Cir. 1987).
Like any other such defense, that which is promised by the Eleventh
Amendment must be proved by the party that asserts it and would benefit from its
acceptance. ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289, 1291 (9th
Cir. 1993); Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004). The sovereignty
analysis is factual. Zolin at 1110 (We must look behind the pleadings to determine
whether a decree in the case would operate in fact against the sovereign.).
The Commission and its employees offered no facts showing a relationship
with the State, instead citing cases which did not determine the factual issues
underling status as sovereign, and asserting a preclusion. Doc. No. 22-1, pp.3-6.
The district court extended immunity on one such case: Ricotta v. California, 4 F.
Supp. 2d 961, 976 (S.D. Cal. 1998), cert den. 528 U.S. 864 (1999) 11 and a state
immunity under Article VI, 18(h) of the California Constitution.
Ricotta did not analyze the Commissions status under Shaw, Pennhurst or
Zolin because the Ricotta plaintiff conceded that his complaint naming the
Commission erroneously sued the state instead of the chairperson of the
commission, and the complaint admitted it sought relief drawing from state
funds. Ricotta at 976. Ricotta cannot support the district courts grant of immunity
because sovereignty is a question of fact, and facts determined in prior proceedings
cannot have preclusive effect absent a showing of parity which the Commission did
not (and could not) assert. See White v. City of Pasadena, 671 F.3d 918, 926-27 (9th
11
This Courts opinion is not citable. The denial of cert. was limited to a
Rooker-Feldman issue.
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Cir. 2012). Moreover, the peculiar procedural history of Ricotta in this Court and
on petition for certiorari 12 undermines any citation to it as authority.
On the relevant analysis, the Complaint did not admit the Commission as a
state with certitude, but asserted the oppositeas a beneath state-level 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 . . . Compl. 18, ER 307, 440, 442, 447-48,
454 474, 603. Such straightforward allegations are entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
The Commission could never establish itself as a sovereign. The Supreme
Court has consistently refused to construe the Amendment to political subdivisions
even though such entities exercise a `slice of state power.'" Lake Country Estates,
Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979); Hess,
supra. Both the Supreme Court and this Court have counseled caution in extending
immunity to non-state entities. See, e.g., Del Campo v. Kennedy, 517 F.3d 1070,
1075 (9th Cir. 2008); N. Ins. Co. of New York v. Chatham Cnty., Ga., 547 U.S. 189,
194 (2006); Alden v. Maine, 527 U.S. 706, 713 (1999); Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993).
California Coalition argued below (Doc. No. 57) the Commission governs
itself and its budget independently from the State. It is so independent it has been
described as a bureaucracy out of control. See Recorder v. Comm'n on Judicial
Performance, 72 Cal. App. 4th 258, 263 (1999). Commission processes are created
and administered independent of the state legislature, and it operates an independent
budget. Doc. No. 1 (Compl.) Ex. 39 p. 2018 (2011 Annual Report). Commission
12
See 528 U.S. 864.

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members are not employees of the State or Commission, but private lawyers,
citizens, and county judges. Cal.Const. Art. 6 8(a); Compl. Ex. 39, P. 1982. The
Commission exercises jurisdiction over county judges. Cal.Const. Art. 6 8, 18;
Adams v. Comm'n on Judicial Performance, 8 Cal. 4th 630, 637 (1994).
The December 23, 2013 order extending Eleventh Amendment immunity
failed to analyze the factual issue of the Commissions relationship with the State of
California, and must be reversed.
California Constitutional Immunity Does Not Protect the Commission, and
Employees are Not Immunized From Ultra Vires Acts
Neither the Commission nor its employees are immunized under California
Constitution Article VI, 18(H). This section protects employees only, and only for
acts undertaken in the course of their official duties. The criminal frolics and
deprivation of rights alleged against Battson and Simi could never be official acts.
Cal. Const. art. I 26. See Recorder v. Comm'n on Judicial Performance, 72 Cal.
App. 4th 258 (1999); Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219,
1240 (E.D. Cal. 2009). The California Constitution cannot immunize any state actor
against liability under federal law. Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.
1996).
2. The District Court Extended Judicial Immunity under
Ashelman v. Pope Contrary to Controlling Supreme Court
Authority
The district courts December 23, 2013 order granted San Diego Superior
Court officials immunity under Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) for
judicial acts within the jurisdiction of their courts. ER 48. The order did not
identify any claim fitting that scope, but warned Stuart to be wary of the
immunities in pleading (ER 48) and that if Stuart didnt take into consideration
their rights to judicial immunity the court would consider sanctions. ER 59-60.
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grand jury witnessenjoyed immunity at common law. Id. at 1503-07. Similar

historical analyses are apparent in Monroe v. Pape, 365 U.S. 167, 172-85 (1961);
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 703 (1978); Pierson
v. Ray, 386 U.S. 547, 559-62 (1967) (Douglas, J., dissenting); Owen v. City of
Independence, Mo., 445 U.S. 622, 642 (1980) (Nowhere in the debates, however,
is there a suggestion that the common law excused a city from liability on account
of the good faith of its authorized agents, much less an indication of a congressional
intent to incorporate such an immunity into the Civil Rights Act); Hoffman v.
Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of cert.) (The
courts that have accorded absolute immunity to social workers appear to have
overlooked the necessary historical inquiry; none has seriously considered whether
social workers enjoyed absolute immunity for their official duties in 1871. If they
did not, absolute immunity is unavailable to social workers under 1983. This all
assumes, of course, that social workers (at least as we now understand the term)
even existed in 1871. If that assumption is false, the argument for granting absolute
immunity becomes (at least) more difficult to maintain.); Kalina v. Fletcher, 522
U.S. 118, 132 (1997) (Scalia, J., concurring); and Jensen v. Lane Cnty., 222 F.3d
570, 577 (9th Cir. 2000) (finding no firmly rooted tradition of immunity for
functions performed by private psychiatrists employed by prison).
An officers failure to prove up a common law analog is dispositive of the
issue regardless of countervailing policy considerations. Rehberg at 1502-03 (We
do not simply make our own judgment about the need for immunity. We have made
it clear that it is not our role to make a freewheeling policy choice, and that we do
not have a license to create immunities based solely on our view of sound policy.).
Courts do not have a license to establish immunities from 1983 actions in the
interests of what [the Court] judge[s] to be sound public policy. Id at 922-923;
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Imbler v. Pachtman, 424 U.S. 409, 421 (1976) (our earlier decisions on 1983
immunities were not products of judicial fiat. . . .). Granting an immunity absent
this historical analysis is error. Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974)
(These cases, in their present posture, present no occasion for a definitive
exploration of the scope of immunity available to state executive officials.).
Superior Court Defendants proffered, and the district court undertook, no
historical analysis of whether judicial defendants asserting immunities were
performing functions immune at common law in 1871both
merely citing
Ashelman. Doc. No. 16-1, 19; EER 48. This fails to affirmatively state the
defense, which was exclusively their burden. Fed.R. Civ.P. 8(c); Rehberg, supra;
Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002). The district courts extending
immunity on this record was error.
b. Ashelman v. Pope is Inconsistent with Supreme Court
Authority
The district courts order in reliance on Ashelman is error because Ashelman
stands in error. Ashelman held: Judges and those performing judge-like functions
are absolutely immune from damage liability for acts performed in their official
capacities and [a]s long as the judge's ultimate acts are judicial actions taken
within the court's subject matter jurisdiction, immunity applies. Ashelman at 1075,
1078. Ashelman reached this analysis adopting a four factor test from the Fifth
Circuit, as well as that circuits policy that the four factors are to be construed
generously in favor of the judge and in light of the policies underlying judicial
immunity . . . to ensure independent and disinterested judicial and prosecutorial
decisionmaking and a policy of liberal application of immunity. Id. at 1076, 77.
Ashelman extracted this analysis from Adams v. McIlhany, 764 F.2d 294 (5th Cir.
1985), Dykes v. Hosemann, 776 F.2d 942 (11th Cir.1985) (en banc)), which in turn
follow the Fifth Circuits seminal immunity case, McAlester v. Brown, 469 F.2d
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1280 (5th Cir.1972). Since Stump v. Sparkman, 435 U.S. 349 (1978), this analysis
is error.
McAlester is the source of the four factor test, and Adams the inventor of
the pro-immunity policy language present in Ashelmans holding. In McAlester
the Fifth Circuit considered the immunity of a judge who jailed the father of a
prisoner who brought clothing for the prisoner to the judges chambers. McAlester
at 1281. After Mr. Browns release, he sued the judge under Section 1983. Id. The
Fifth Circuit analyzed the judges immunity claim under Bradley, Pierson, and a
Texas state law 13 empowering judges to issue contempt citations.
From this analysis, the McAlester court discerned a four part test for the
existence of judicial immunity: (1) the precise act complained of, use of the
contempt power, is a normal judicial function; (2) the events involved occurred in
the judge's chambers; (3) the controversy centered around a case then pending before
the judge; and (4) the confrontation arose directly and immediately out of a visit to
the judge in his official capacity. McAlester at 1282. Applying its newly-minted
test, the court determined that the contempt citation was authorized by statute, and
therefore immune. Id. at 1283.
Six years later Justice White in Sparkman considered McAlesters four factor
test as well as the relevant cases from other circuits, including this Courts decision
in Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974). Sparkman at 361. He declined
opportunity to adopt McAlesters four factors, instead articulating a two factor test
to determine whether an accused act is judicial in nature: (1) the nature of the act
itself, i.e., whether it is a function normally performed by a judge, and (2) the
13
Taylor v. Goodrich, 25 Tex. Civ. App. 109, 110 (1897) did not analyze
common law, but a Texas contempt statute.

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expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity. Id. at 362.
Sparkman thus rejected McAlesters precise act factor, and de-emphasized
McAlesters focus on location of the act being in chambers relating to a pending
case, or during a visit to a judge. Id. In rejecting McAlesters factors Justice
White cited favorably this Courts decision in Gregory, which held that physically
evicting a litigant from a courtroom is not an act of a judicial nature. Sparkman
at 370, fn. 10. He also cited a Sixth Circuit decision, Lynch v. Johnson, 420 F.2d
818 (6th Cir. 1970), holding that a county judge who had a plaintiff forcibly
removed from a fiscal court and jailed was not immune: A judge does not cease
to be a judge when he undertakes to chair a PTA meeting, but, of course, he does not
bring judicial immunity to that forum, either. Id. at 820. Clearly Justice White
cited these examples to refute McAlesters emphasis on precise act, and to
emphasize that even if a judge acts in chambers, or relating to a confrontation
or pending case, the judges precise act may not be judicial in nature. After
Sparkman, McAlesters discernment from Bradley and Pierson was a dead end.
Appearing not to recognize Sparkmans superior authority terminating
McAlesters four factor test, seven years after Sparkman, the Fifth Circuit in Adams
resurrected and expanded the four factor test. Adams at 297 (The four factors
generally relied upon by this circuit in determining whether an act is judicial)
(emphasis added). Adams analyzed under McAlesters test rather than Sparkman,
reciting the official capacity and precise act factors specifically rejected by
Justice White. Adams at 197.
Adams also proselytized the emergence of the freewheeling pro-immunity
policy, citing to McAlester, Bradley, and Pierson. These cases support nothing close
to a pro-immunity policy. See McAlester at 1282-83. Indeed the Supreme Court
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has consistently observed the opposite policy: This Court has . . . been quite sparing
in recognizing absolute immunity for state actors. Buckley at 269; Forrester v.
White, 484 U.S. 219, 224 (1988); Burns v. Reed, 500 U.S. 478, 491 (1991); Kalina,
etc. 14
Adams also conducted no analysis of 1871 common law to determine if the
function of finding a litigant in contempt was a judicial act entitled to immunity,
examining only Judge Mcllhanys statutory jurisdiction to conclude the judges
contempt citation was immune because it was authorized by statute. Adams at 29597. This analysis was also inconsistent with Sparkman, which considers statutory
authorization relevant to determining the second jurisdictional factor, but is
insufficient to determine the judicial act at common law factor.
14
In the Eleventh Circuits contemporaneous case of Dykes v. Hosemann,

776 F.2d 942 (11th Cir. 1985) dissenting Judge Hatchett expressed outrage at his
majoritys immunity policy, accurately predicting nefarious consequence: [T]he
en banc court holds that judicial immunity is complete, unqualified, and without
exception. . . As the majority concedes, no precedent, Supreme Court or otherwise,
requires such a broad definition and application of the judicial immunity doctrine.
[N]o policy considerations justify such a result. . . . Judges . . . will be able to deal
willy nilly with the rights of citizens without having to account for willful
unconstitutional actions. Dykes at 954. Judge Hatchett forewarned of judges
conspiring with politicians to quash a political movement by illegally arresting and
imprisoning its leaders: [I]n a state with a political climate which is hostile to
freedom of association, a judge could repeatedly interfere with constitutional rights
without being held accountable. Id. Though Judge Hatchett felt need to defend his
prediction as not far fetched, his warning perhaps underestimated the lawless
audacity of modern family courtsa notorious climate hostile to freedom of
association. See, e.g. FAC allegations regarding Stuart Assault, Malicious
Prosecution, Nesthus Obstruction of Justice.
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The Fifth Circuits failure to align with Sparkman is the cascade of error15
condemned by the Supreme Court in Rehberg and generations of prior controlling
authority. See, e.g., Malley (decided March 5, 1986, four months before Ashelman),
Tower (1984), Owen (1980), Sparkman (1978), Imbler (1976), and Pierson (1967),
supra. This Court in Ashelman conceded as much, stating it was expand[ing] the
scope of immunity in Stump v. Sparkman. Ashelman at 1075.16
15
Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985); Adams v.
McIlhany, 764 F.2d 294 (5th Cir. 1985); McAlester v. Brown, 469 F.2d 1280 (5th
Cir. 1972); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985); and Lerwill v.
Joslin, 712 F.2d 435, 436 (10th Cir.1983). Ashelman at 1075-77. C.f. Fletcher v.
Kalina, 93 F.3d 653 (9th Cir. 1996) aff'd, 522 U.S. 118 (1997); Miller v. Gammie,
335 F.3d 889, 896 (9th Cir. 2003); Genzler v. Longanbach, 410 F.3d 630, 636 (9th
Cir. 2005).
16
Ashelman also relied on a prior decision, Richardson v. Koshiba, 693 F.2d
911, 913 (9th Cir.1982), which also conducted no analysis of function or 1871
common law, instead exclusively analyzing under a balancing test of the need to
protect the rights of citizens by providing a damage remedy for constitutional
violations with the need to protect officials in the vigorous exercise of their
discretionary authority. Richardson at 915 (9th Cir. 1982) (internal citations
omitted). Richardson relied on its prior decision in Sellars v. Procunier, 641 F.2d
1295, 1298 (9th Cir. 1981) stating [i]t is no longer the case, however, that immunity
at common law in 1871 is the sine qua non for according public officials immunity
under 1983. See also Dykes at 949 (prosecutors and judges entitled to immunity
from conspiracy claims to protect them from apprehension of personal
consequence.); Holloway at 522 (freewheeling policy analysis to extend
immunity to a judge conspiring to seize control of a corporation through judicial
process to plunder corporate assets. Lerwill did not analyze function or immunity
under 1871 common law, and has since been called into question by this Court in
Kalina because it predates Malley, Burns and Buckley. Fletcher v. Kalina, 93 F.3d
653, 656 (fn. 3) (9th Cir. 1996), aff'd, 522 U.S. 118 (1997). This analysis diverting
from immunity for function at common law is error.
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c. Ashelmans Expansion of Immunity is An Illegal

Incursion Into Legislative Authority
No United States court can expand Sparkman. Pierson and Sparkmans
controversial 17 interpretations of the Civil Rights Act have been apologetically
qualified as the outer perimeter of Article III judicial power. See, e.g., Pulliam v.
Allen, 466 U.S. 522, 543 (1984) ([I]t is for Congress, not this Court, to determine
to what extent to abrogate the judiciary's common-law immunity.); Wood v.
Strickland, 420 U.S. 308, 321 (1975) (Absent legislative guidance, we now rely on
those same sources); Butz at 489. Ashelmans expansion of Sparkman illegally
legislated a narrower version of Section 1983. Just as a court cannot apply its
independent policy judgment to recognize a cause of action that Congress has
denied, see Alexander v. Sandoval, 532 U.S. 275, 286287 (2001), it cannot limit a
cause of action that Congress has created . . . Lexmark Int'l, Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377, 1388 (2014).
Section 1983s facial clarity and the intent of Congress to hold judges
accountable is incontrovertible. Monroe v. Pape, supra. Ashelmans disobedient
expansion of Sparkman to cavort with the Fifth Circuit cases perpetuating the
indulgent analysis of Adams is a startlingindeed shameful 18incursion into
Article I sec. 2 cl. 1 congressional authority, rightfully condemned by the Supreme
Court in Rehberg, and for generations prior.
17
See Pierson (Douglas, J. dissenting), Sparkman (Stewart, J, dissenting);

Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (Indeed, as the Court also indicated
in Monroe v. Pape, supra, the legislative history indicates that there is no absolute
immunity); Pulliam at 540 (1984) (every Member of Congress who spoke to the
issue assumed that judges would be liable under 1983).
18
if it states a rule undesirable in its consequences, Congress can change it.
We add only to the instability and uncertainty of the law if we revise the meaning of
[the Civil Rights Act] to meet the exigencies of each case coming before us. Monroe
v. Pape, 365 U.S. 167, 185 (1961).
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d. The District Court Expanded Ashelman Even Further

The district court expanded Ashelman even further, expressing a startlingly
broad scope of immunity for defendants acting in their judicial capacity as officers
of the court, running the family court system ER 58-59. Though the courts
December 23, 2013 written order is narrower, the repeated commands at hearing,
backed with threats of Rule 11 sanctions, had resounding prophylactic impact upon
California Coalition in drafting the FAC. California Coalition drafted the complaint
to expressly exclude non-immune acts. See Sec. IV.C.4, supra.
Moreover, the narrower scope articulated in the written order could not have
been in the district judges mind when at hearing on February 26, 2014 the court
again articulated a startling scope of immunity to include most, if not all, of the
defendants in the FAC. ER 27. This scope would apply to allegations against
judicial officials that cannot be immune, including searching and seizing, assaulting,
battering, defaming, obstruction, retaliation, and punishment alleged in the Stuart
Assault (See Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993));
administrative behaviors of RODDY, ALKSNE, TRENTACOSTA, SCHALL, and
WOHLFEIL in running the family court system as alleged in the Doyne
Terrorism (See Forrester v. White, 484 U.S. 219, 222 (1988); Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 432 (1993)); setting in motion and participating in an
illegal prosecution as C. GOLDSMITH, J. GOLDSMITH, and GARSON in the
Malicious Prosecution (See Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir.
1980)); strongly suggesting a citizen leave the state after release from jail as
GROCH in the (Malicious Prosecution (See Lynch v. Johnson, 420 F.2d 818
(1970)); threatening citizens with arrest through take-down notices as in the
Nesthus Obstruction of Justice (See Kalina, Malley, Burns, etc.); racketeering
activity of fraud, extortion, kidnapping, and robbery alleged against all defendants
in the Stuart Assault, Malicious Prosecution, Doyne Terrorism and all
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racketeering crimes based thereon (See New Alaska Dev. Corp. v. Guetschow, 869
F.2d 1298, 1304 (9th Cir. 1989); Vierria v. California Highway Patrol, 644 F. Supp.
2d 1219, 1246 (E.D. Cal. 2009)).
These acts cannot be immune under any construction of judicial immunity,
and the district courts utterances otherwisebacked by vitriolwere error.
3. Judicial Defendants Are Not Immune From Non-Judicial Acts
Setting in Motion Constitutional Injury; Ashelmans
Abrogation of Rankin v. Howard and Beard v. Udall Was Error
The district courts citation to Ashelman also jeopardized California
Coalitions conspiracy allegations directed at judicial officers and San Diego City
Attorney criminal prosecutors setting in motion subsequent constitutional injury. 19
Ashelmans holding reversed its own panel and two of its prior decisions including
Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980) cert den. Zeller v. Rankin, 451 U.S.
939 (1981), in which this Court held: [A] judge's private, prior agreement to decide
in favor of one party is not a judicial act. Rankin at 847. Rankin reversed and
remanded instructing the district must consider the possibility that Judge Zeller lost
his immunity by participating in a conspiracy to violate Rankin's civil rights through
19
See FAC 145, 147, 310, 370 (Stuart Assault Coordinators); 368 Count
3, SDCBA/Federal & City Attorney Defendants in the Malicious Prosecution,
Prosecutorial Misconduct, False Imprisonments); 495 (Groch and City Attorney
Defendants); 509 (Nesthus & Superior Court Judges in Obstruction of Justice);
553 (Battson/Simi & Schall/Wohlfeil/Stuart Assault Coordinators); 639
(Supervising Defendants); Counts 9, 10 (Section 1985 & 1986 Color of Law
Defendants); 808 (Doyne & Wohlfeil/Schall); Count 12, 913 (Superior Court &
Alliance); 926, 955, 1041, 1141, 1152, 1165, 1182 (All RICO Counts). The
district courts prophylactic grant of a vague judicial immunity for conspiracies
under Ashelman caused awkward pleading of both immune and non-immune facts,
some claims limitedothers notto non-immune facts. See, e.g., FAC 350,
478, 765, 790, 794 etc., Claim 3.5, Counts 4, 9, 10 re: GROCH and CITY
ATTORNEY DEFENDANTS.
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a nonjudicial agreement. Id. at 850. Judge Zellar petitioned for certiorari on the
denial of judicial immunity, which the Supreme Court denied in Zeller v. Rankin,
451 U.S. 939 (1981). The denial of certiorari in Zeller v. Rankin indicates that
Rankin wasand remains in spite of Ashelmans abrogationgood law.
In Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) this Court followed Rankin,
reasoning if there was a prior, private agreement between Judge Greer and Udall to
mislead Judge McDonald, then Judge Greer would not enjoy immunity because,
under Rankin, the agreement would not have been a judicial act. Beard at 1270.
Ashelmans panel followed Beard and Rankin in finding no immunity against
allegations that the judge and prosecutor conspired to deny Ashelman various rights
to defend himself at his criminal trial. The panel held that a judge is not immune if
his actions are deemed non-judicial. Ashelman v. Pope, 769 F.2d 1360, 1361 (9th
Cir. 1985) reh'g granted, opinion withdrawn, 778 F.2d 539 (9th Cir. 1985) and on
reh'g, 793 F.2d 1072 (9th Cir. 1986).
The 28 years since Ashelmans en banc decision have shown that Rankin,
Beard, and the Ashelman panel were closer to the correct analysis than the en banc
decision. They are consistent with contemporaneous controlling and collateral
authority, and have been consistent with subsequent decisions from this circuit and
others which have found liability for acts that sets in motion events causing
constitutional injury. See, e.g, Johnson v. Duffy, 588 F.2d 740, 74344 (9th
Cir.1978); Starr v. Baca, 652 F.3d 1202, 1218 (9th Cir. 2011); Wallace v. Powell,
3:09-CV-286, 2014 WL 70092 (M.D. Pa. Jan. 9, 2014); Sanchez v. PereiraCastillo,
590 F.3d 31, 51 (1st Cir.2009); Morris v. Dearborne, 181 F.3d 657, 672 (5th
Cir.1999); Sales v. Grant, 158 F.3d 768, 776 (4th Cir.1998); Waddell v. Forney, 108
F.3d 889, 894 (8th Cir.1997); Conner v. Reinhard, 847 F.2d 384, 39697 (7th
Cir.1988).
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Most recently Judge Caputo of the Middle District of Pennsylvania in the

infamous Kids for Cash Wallace v. Powell case analyzed the question head-on.
Judge Caputo found Luzerne County, Pennsylvania juvenile court Judges Mark
Ciavarella and Michael Conahan indecently, cavalierly, baselessly, and willfully
entered into extra-judicial conspiracies which set in motion deprivations of
juvenile litigants rights to impartial tribunal. See Wallace v. Powell, 2009 WL
4051974 (M.D. Pa. Nov. 20, 2009). Judge Caputo found that Judge Ciavarella was
immune from the deprivations of the childrens rights to counsel and jury trial inside
of his courtroom, but he was not immune for his actions in entering into conspiracies
to build juvenile detention centers into which he sentenced the juvenile offenders
because such acts were not functions normally performed by a judge. Wallace v.
Powell, supra, at *9-11. See Doc. No. 163 (Wallace v. Powell Memorandum of
Order).
Consistent with Rankin, Judge Caputo found Ciavarellas and Conahans
behavior to be perversions of justicethe antithesis of the principled and fearless
decision-making that judicial immunity exists to protect. Rankin at 847. Such
behavior not entitled to a pro-immunity policy, but punishment. Id.; Imbler v.
Pachtman, supra at 429 (This Court has never suggested that the policy
considerations which compel civil immunity for certain governmental officials also
place them beyond the reach of the criminal law. Even judges, cloaked with absolute
civil immunity for centuries, could be punished criminally for willful deprivations
of constitutional rights on the strength of 18 U.S.C. 242). The Supreme Court
has for generations been, and today remains postured in accord. See Rehberg, supra
at 1507, fn. 1 (Of course, we do not suggest that absolute immunity extends to all
activity that a witness conducts outside of the grand jury room.) (citing Kalina,
Malley, and Buckley).
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a. Ashelmans Retreat from Rankins Holding Denying

Immunity to Private Co-Conspirators was Error
Ashelman retreated from a defense of Rankin under criticism from the Fifth
Circuit in Holloway. Ashelman at 1076-77. The criticism and retreat were errors.
Holloway criticized Rankin because it saw a divergence between Rankin and a prior
Fifth Circuit decision Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976 (5th Cir. 1979)
aff'd sub nom. Dennis v. Sparks, 449 U.S. 24 (1980). Holloway, 765 F.2d at 522.
Holloway reasoned that because Sparks involved a claim to immunity by a judge
acting in conspiracy with private parties, and was affirmed by the Supreme Court,
Rankin must be error. Holloway at 522.
This Court in Ashelman bowed to Holloways analysis in overturning Rankin,
yet simultaneously recognized that the precedential value of Dennis v. Sparks, 449
U.S. 24 (1980) is debatable since the Supreme Court did not grant certiorari on the
issue of immunity of the judge, but on whether private parties enjoyed a derivative
immunity from an judge that was already determined to be immune. Ashelman at
1077, n. 2; see also Rankin v. Howard, 633 F.2d 844, 848 (9th Cir. 1980) n. 9.
Because Sparks did not pass on the issue central to the holding in Rankin, the cases
are not in conflict, and Ashelmans retreat from Rankin was error.
To the extent the district courts several utterances expanded immunity to
protect private parties acting in conspiracy with judicial officials or prosecutors, the
district court erred as well.
b. Ashelmans Ultimate Act Analysis Was Rejected in
Sparkman and is Inconsistent with Pierson
Ashelmans ultimate act factor cannot be derived from controlling authority.
It first appeared in McAlesters four factor test as precise actlanguage later
rejected in Sparkman. See sec. VI.D.2, supra.
Ultimate act cannot be derived from Pierson, which expressly limited its
finding of judicial immunity for Judge Spencer to the judicial act proven by the
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plaintiff Freedom Riders at trial: The core judicial function to adjudge petitioners
guilty when their cases came before his court. Pierson at 554. The Supreme Court
was not presented with a setting in motion or conspiracy issue because at trial the
plaintiff Freedom Riders did not prove any extrajudicial act or conspiracy:
We find no difficulty in agreeing with the Court of Appeals that Judge Spencer
is immune from liability for damages for his role in these convictions. The
record is barren of any proof or specific allegation that Judge Spencer played
any role in these arrests and convictions other than to adjudge petitioners
guilty when their cases came before his court.8
Footnote 8 expressly states that the holding does not extend to a conspiracy:
Petitioners attempted to suggest a conspiracy between Judge Spencer and
the police officers by questioning him about his reasons for finding petitioners
guilty in these cases and by showing that he had found other Freedom Riders'
guilty under similar circumstances in previous cases. The proof of conspiracy
never went beyond this suggestion that inferences could be drawn from Judge
Spencer's judicial decisions. See Transcript of Record, at 352371.
Pierson at 554, n. 8. The question left open was whether Judge Spencer would have
been immune against proof that he conspired with Jackson police to, for example,
set up a policy of harassing the stream of sit in civil rights activists travelling
through Mississippi in the 1960s to protest southern segregation. If the Freedom
Riders would have presented more than an inference of a conspiracy, plainly Chief
Justice Warren believed that a separate analysis of the extra-judicial acts would have
been appropriate. Id.
Similarly, in Sparkman Justice White considered the precise act language
of McAlester but rejected it.
Sparkman at 361.
Indeed, he noted that Ms.
Sparkmans conspiracy allegations were not presented because the district court had
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decided (probably incorrectly) that the private defendants were not state actors,
and neither party contested that holding. Id. at 364, fn. 13. The ultimate act
holding of Ashelman has no support in Bradley, which did not consider conspiracy
or setting in motion theories. Bradley v. Fisher, 80 U.S. 335, 350 (1871). 20
Finally, unlike Rankin, which withstood a petition for certiorari, neither
Ashelman, Holloway, Adams, nor Dykes have received review.
The district courts reliance on and expansion of Ashelman to extend
immunity to the several extra-judicial conspiracies alleged in the Complaint was
error.
4. Family Law Judges Did Not, and Could Not Establish Immunity
at 1871 Common Law
The relevant analysis not undertaken by the district court below examines the
1871 common law to determine whether an analog to the officers accused function
existed at common law as of 1871, and next examines what, if any, immunity that
function then enjoyed. See Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000);
Hoffman v. Harris, 511 U.S. 1060 (1994); Rehberg at 1503-04.
Judicial official defendants from divorce tribunals did not, and will not
identify a common law analog to any modern divorce court function because at 1871
common law, no civil judicial tribunal possessed jurisdiction over marriage or
divorce or child custody. It is elementary that in the early history of jurisprudence
in England the common law courts exercised no jurisdiction over divorce cases,
20
In fact, Bradley and its decision a year prior identified a clear common-law
tradition of holding inferior judges accountable for acts done maliciously or

corruptly. Bradley acknowledged that it was diverting from that tradition with
regard to superior judges only. Bradley at 350 (citing Randall v. Brigham, 74 U.S.
523 (1868))
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jurisdiction in such matters resting entirely with the ecclesiastical courts of the
realm. Peterson v. Peterson, 24 Haw. 239, 246 (1918). Neither was child custody
justiciable at common law, which without exception followed the rule that fathers
retained sole custody of their children after separation or divorce.
King v.
DeManneville, 102 Eng. Rep. 1054, 1055 (K.B. 1804); Robert H. Mnookin, ChildCustody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW
AND CONTEMP. PROB.
226, 234 (1975).
Post-revolutionary American States severed divorce and custody matters from

civil courts by necessity of the church/state wall. U.S. Const. Amend 1; McGowan
v. State of Md., 366 U.S. 420, 443 (1961). Every function relating to divorce was
relinquished to the church side of the wall. Sch. Dist. of Abington Twp., Pa. v.
Schempp, 374 U.S. 203, 227 (1963) (the church . . . and church law usually governs
such matters as baptism, marriage, divorce and separation, at least for its members
and sometimes for the entire body politic.). The only civil function of divorce was
related to property: Divorce cuts off inheritance, and remarriage reassembles it. Paul
H. Jacobson, American Marriage and Divorce (New York 1951). Throughout the
Nineteenth Century until about 1897, the civil process of divorce was performed by
legislaturesnot courtsgranting a divorce in the same way a bill is made into law.
G. Howard, A History of Matrimonial Institutions 77 (1904).
American divorce law has no common law foundation; it is entirely a statutory
creation. Nineteenth Century states codified independent, often wildly different
rules. N. Blake, The Road To Reno, A History of Divorce in the United States 56
(1962). States such as New York all but banned divorce, while others such as
Massachusetts permitted it liberally. Id. In the Twentieth Century Nevada created
a boom industry under liberal state law and the U.S. Constitutions full faith and
credit clause. Id.
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Californias Family Courts are a creation of the 1970s after the 1966
California Report on the Governors Commission on the Family. L. Friedman,
Rights of Passage: Divorce Law in Historical Perspective 63 OR. L. REV. 649, 667
(1984). The function of psychologist-as-judge custody evaluator was unknown to
a divorce courtroom until the mid-1990s as the supply of psychologists continued
to increase and stricter third-party payer regimens were imposed for mental health
treatment (Gould, 2006). [C]ustody evaluation services generally are neither highly
regulated nor institutionalized, but rather may be characterized as a cottage industry
(Schepard, 2005). Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations:
The Need for Systems-Level Outcome Assessments, 47 FAM. CT. REV. 286, 291
(2009).
On the church side of the wall, religious tribunals enjoyed no sovereign
immunity for marriage and divorce rituals because unlike the church/state entity in
England, American churches cannot be sovereigns, but are purely voluntary
associations. Jones v. Wolf, 443 U.S. 595, (1979). The immunity of a religious
association is derived from the members First Amendment rights of association and
free exercise. Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d
875, 883 (9th Cir. 1987). Religious tribunals were prohibited from interference with
religious ritualincluding divorceand thus given wide deference by civil
institutions to superintend the faithful. Id.; See also Watson v. Jones, 80 U.S. 679,
703 (1871); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576-77 (1st
Cir. 1989) (we deem it beyond peradventure that civil courts cannot adjudicate
disputes turning on church policy and administration or on religious doctrine and
practice.).
The Twentieth century expansion of family court jurisdiction into territory
previously within the sphere of the church cannot annex the first amendment liberties
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of the church; a civil court is a sovereign, and cannot possess or acquire a right of
expression or free exercise. First and Fourteenth Amendments restrain only such
action as may fairly be said to be that of the States. United States v. Morrison, 529
U.S. 598, 621 (2000). [T]he censorial power is in the people over the Government,
and not in the Government over the people. New York Times Co. v. Sullivan, 376
U.S. 254, 282-83 (1964). Indeed, a state law derived from a religious ideology may
be a violation of the establishment clause. See Van Orden v. Perry, 545 U.S. 677,
690 (2005). Whatever immunity ecclesiastical tribunals may have enjoyed at
common law, they are derivative of rightsnot sovereigntyand thus nontransferable currencies upon the family courts Twentieth Century annex of religious
ritual.
5. Modern Family Court Jurisdiction Is Inferior; If It Has
Immunity It is Extremely Narrow
The district courts December 23 order indicates an understanding that
modern Family Courts are courts of limited jurisdiction; it ascribed a narrow scope
of immunity to acts within the jurisdiction of their courts. ER 48. Thought the
district court cited Ashelman, Ashelamn does not support this proposition; the district
court instead appears to be acknowledging Bradley: [W]ith reference to judges of
limited and inferior authority it had been held that they were protected only when
they acted within their jurisdiction. Bradley at 352.
Family court jurisdiction is incontrovertibly inferior because it is specific: a
proceeding for dissolution of marriage, for nullity of marriage, or for legal separation
of the parties. Cal. Fam.C. 2010. Many courts recognize family courts as inferior
tribunals.
Family Court in a dissolution proceeding is a court of limited
jurisdiction. King v. State Educ. Dep't, 182 F.3d 162 (2d Cir.1999); People United
for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 286 (S.D.N.Y. 2000)
(Family Court not a court of competent jurisdiction for Rooker-Feldman analysis).
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Twentieth Century California law established family courts as courts of equity,

subordinate to courts of law. Greenwood v. Greenwood, 112 Cal. App. 691, 696,
297 P. 589, 591 (Cal. Ct. App. 1931) (Equity will not grant relief against a judgment
at law.).
Bradley describes the limited scope of immunity for inferior courts: Judges
exercising limited jurisdiction were immune for acts within the limited jurisdiction,
and could be liable for civil damages for acts in excess of their jurisdiction, and for
acts done maliciously or corruptly. Bradley at 351. 21 While family court judicial
defendants bear the burden of demonstrating their many modern functions enjoyed
any immunity at common law, in no case will they achieve an immunity scope
greater than an 1871 inferior court; for judicial acts within their jurisdiction not done
maliciously or corruptly.
6. Like Ashelman, Sparkman and Pierson Were Illegal Exercise of
Legislative Authority
For the same reason that Ashelmans extension of Sparkman was an illegal
encroachment on exclusive congressional authority, the Supreme Court in Pierson
and Sparkman overstepped the limits of Article III jurisdiction. Section 1983 is not
21
Thus, if a probate court, invested only with authority over wills and the
settlement of estates of deceased persons, should proceed to try parties for public
offences, jurisdiction over the subject of offences being entirely wanting in the court,
and this being necessarily known to its judge, his commission would afford no
protection to him in the exercise of the usurped authority. Bradley at 352. This
distinction was recognized in Sparkman, 435 U.S. 349, 356 (1978), fn. 7. See also
Randall v. Brigham, 74 U.S. 523, 535-36 (1868) (In reference to judges of limited
and inferior authority, it has been held that they are protected only when they act
within their jurisdiction.); Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct.
1810) 1810 WL 1044, aff'd, 1811 WL 1445 (1811) ([T]he judges of the king's
superior courts of general jurisdiction were not liable to answer personally for their
errors in judgment. . . . [W]ith respect to the inferior courts, it was only while they
act within their jurisdiction.); Phelps v. Sill, 1 Day 315, 327 (1804).
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a subject for statutory interpretation; clearer language has likely never emerged from
Congress. See Monroe at 185-191. There is simply no justification for implying a
meaning different from the face of the sectionparticularly where the
Congressional intent so vividly supports the facial meaning. This transgression is
well-recognized in cases such as Pulliam (every Member of Congress who spoke
to the issue assumed that judges would be liable under 1983) and Scheuer v.
Rhodes, 416 U.S. 232, 243 (1974) ([T]he Court also indicated in Monroe v. Pape,
the legislative history indicates that there is no absolute immunity). Dissenters are
less tolerant.
See Pierson (Douglas, J., dissenting), Sparkman (Stewart, J.
dissenting), and Dykes (Hatchett, dissenting), supra.

Recognizing the weight of contrary authority, California Coalition
respectfully submits the following issue of first impression to any United States
Court: Pierson and Sparkman stand in error for exceeding the judicial power vested
in United States courts under Article III of the United States Constitution, and should
be reversed. [I]f it states a rule undesirable in its consequences, Congress can
change it. Monroe at 185 (1961).
E. The District Courts Hostility and Threats toward California
Coalition and Local Counsel was a Deprivation of Impartial Tribunal
The written transcript captures one aspect of the district judges unusual
hostility toward appellants. See ER 60-66; ER 59 (laundry list of defendants); ER
59-60 (I will consider sanctions against you sir); ER 64-65 (have at it); ER 2627 (not for me to do your homework, unfortunately); ER 27 (I've had a moments
where I was thinking about just sua sponte dismissing it.); ER 23-24 (that is your
signature and you are attesting to it?); ER 38 (youre really pushing your luck);
ER 28 (you really want to do that?). Most of the judges utterances at hearing
were accompanied by emphasizing intonation, facial expressions, or body language.
The judges hostility penetrated the July order, revealing that the court was
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considering a sua sponte citation of Stuart and California Coalition for contempt for
filing the FAC. ER 12. The court ultimately declined to impose sanctions or
contempt, yet the echo of those threats resonated throughout the case, foreseeably
chilling Stuart and California Coalitions advocacy.
The record better reflects the district judges hostility toward California
Coalitions local counsel, Mr. Adam Bram (erroneously identified in the transcript
as Graham) while he was attempting to appear at hearing on February 26, 2014.
ER 38-39. Mr. Bram had been engaged and working for California Coalition for
several weeks. Immediately after the recorded confrontation with the district judge,
Mr. Bram terminated his representation of California Coalition and ceased all
contact.
California Coalition respectfully submits that the district judges hostility rose
to the level of a deprivation of impartial tribunal. The Due Process Clause entitles
a person to an impartial and disinterested tribunal in both civil and criminal cases.
Marshall v. Jericho, 446 U.S. 238, 242 (1980). [I]t is axiomatic that [a] fair trial
in a fair tribunal is a basic requirement of due process. Caperton v. A.T. Massey
Coal Co., 556 U.S. 868 (2009). Interference with an attorney-client relationship is
an actionable tort under California law. See Skelly v. Richman, 10 Cal. App. 3d 844,
862 (Cal. Ct. App. 1970).
The district courts pattern of unusual hostility, was excessive, impartial
favoring defendants with whom she shares a professional community, and harmful
error. The error cannot be remedied by appellate relief alone. However, California
Coalition respectfully request that in the event of remand, this Court instruct that
California Coalition be relieved of any requirement to obtain local counsel which
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might otherwise be required by a district judge under Southern District Local Rule
83.3 (c)(5). 22
F. California Coalition was Entitled to Leave to File a Motion Witness
Harassment Protective Order
This action is an escalation of a history of conflict between Stuart, California
Coalition and certain defendants engaging in persecution, intimidation, and
obstruction of justice under color of law. California Coalition anticipated this
harassment would escalate upon filing this action, and drafted the complaint as a
verified pleading to provide foundation for a motion for a witness protective order
under Rule 65 and 18 U.S.C. 1514. ER 358-377.
Appellants fears were well-founded.
Mere hours after the Complaint
appeared on Pacer General Counsel for San Diego County Superior Court, Ms.
Kristine Nesthus coordinated with San Diego County Sheriffs Department and
California Highway Patrol detectives in an aggressive campaign to threaten and
intimidate California Coalition members and witnesses who were following the
litigation.
ER 208-216.
California Coalition immediately filed an ex parte
application for leave to seek preliminary injunction restraining defendants from

further harassment. ER 358-377.
The court summarily denied leave, instead sealing the complaint, explaining
the sealing of the complaint mooted the need for restraining order. ER 68. Sealing
the complaint did not moot defendants harassment; agents of the Superior Court
defendants and defendant Chubb continued to intimidate appellants witnesses,
counsel, and process servers after filing the complaint, causing them to become or
remain fearful of associating with California Coalition. ER 42, 69.
22
www.casd.uscourts.gov/Rules/Lists/Rules/Attachments/1/Local%20Rules.pdf
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Denial of the protective order as moot was an abuse of discretion.

California Coalition is impeded in presenting its case by defendants obstruction of
California Coalitions and its witness rights of petition, expression, association, and
due process. The chilling effect of the Nesthus obstruction is causing members and
witnesses who are supportive to decline associate with California Coalition or
participate in the litigation for fear the judicial Defendants will consummate their
threats of illegal prosecution. California Coalition is presently suffering irreparable
injury of an inability to obtain witness cooperation through continuing investigation,
participation in discovery, and to present testimony and evidence during litigation
and at trial.
California Coalition submits the district court abused its discretion in denying
leave, and requests this Court reverse the district court to enable California Coalition
to move for a witness harassment injunction on remand or, in the alternative, to
instruct the district court grant a protective order on remand.
G. Superior Court Defendants Two Failed Sanctions Motions and Two
Failed Motions to Dismiss Entitles California Coalition to CounterSanctions
Superior Court defendants first Rule 11 motion (Doc.No. 23) was a cut-npaste motion repeating the motion to dismiss (Doc. No. 16) on every issue.
However, because it was filed only by the Superior Court and not other parties to the
motion to dismiss, most of the issues were irrelevant to the only moving partythe
Superior Court. See Doc. No. 56. Opposing the motion required hours of tedious
labor to unravel the Superior Courts grounds for moving from the irrelevant parties.
Doc. No. 56, 56-1. Because Superior Courts motion was effectively a double
down on the same grounds as the motion to dismiss, it was an improper hardball
tactic. Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987).
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Superior Court effectively lost both the Rule 11 motion and the underlying
motion to dismiss. California Coalitions M&C (Doc. No. 21-1 Ex. A) proposed to
stipulate for the relief defendants obtainedleave to amend and time to cure
representation and capacity issues. ER 48. In the Omnibus round the Superior Court
withdrew many grounds on which it sought sanctions in the initial round (qualified
immunity, capacity, Rooker Feldman, etc.), proving the Rule 11 motion was
frivolous.
Defendants insisted on burdening the court and parties with an
unnecessary and meritless motion requesting only dismissal with prejudice. Doc.
No. 16.
Superior Courts second motion for sanctions (Doc. No. 160) also a cookie
cutter of its motion to dismiss (Doc. No. 140) and thus a hardball double-down
(Gaiardo, supra)fared even worse.
Both Judicial Defendants underlying
joinder and second Motion for Sanctions based thereon were denied entirely (ER
12). The Omnibus sought dismissal only with prejudice under Rule 41(b), yet the
court bypassed defendants analysis because of the illegal Lucas declaration and
centerpiece Rule 41 section was decapitated, and the remaining issues were
apparently unpersuasive. The court dismissed not on defendants analysis, but on
its own sua sponte grounds under Rule 8. ER 9-11. The court effectively denied
both the underlying motion and the hardball sanctions motion for a second time.
By contrast, Stuarts motion for Rule 11 sanctions (Doc. Nos. 39, 69) should
have been granted. The district courts December 23 Order denying/granting in part
Superior Court Defendants motions denied on every ground Appellant alleged were
frivolous. In their Omnibus joinders, Superior Court/Judicial Defendants abandoned
the arguments Stuart attacked in his Rule 11 motion, proving they were frivolous.
Doc. Nos. 139, 140.
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Stuart and California Coalition respectfully submit the district court abused
its discretion in denying Stuart and California Coalition counter-sanctions for the
Superior Courts frivolous sanction motion practice. California Coalition requests
the Court to remand with instructions that the district court conduct further
proceedings to determine an appropriate sanction against the Superior Court
consistent with the rate calculations proposed by Stuart at Doc. No. 39-2.
H. Preservation of Issues Not Adjudicated
The district court summarily denied California Coalitions motion for
preliminary injunction without analysis. ER 11. California Coalition submits this
denial was a deprivation of opportunity to be heard under Zinermon v. Burch, 494
U.S. 113, 126 (1990), and respectfully requests leave of this Courts Circuit Rule
28-1(b) to reference and preserve that motion and preserve issues for further
adjudication.
VII. CONCLUSION
Courts must decide every case that walks in the courthouse door, even when
it presents the kind of jurisprudential, public policy, evidentiary, and case
management problems inherent in this litigation. United States v. Philip Morris
USA, Inc., 449 F. Supp. 2d 1, 29 (D.D.C. 2006). Although RICO cases may be
pesky, courts should not erect artificial barriersmetaphysical or otherwiseas a
means of keeping RICO cases off the federal dockets Sun Sav. & Loan Ass'n v.
Dierdorff, 825 F.2d 187, 194 (9th Cir. 1987).
California Coalition and the families and children who have yet to achieve a
sustained voice in the courts of the United States are grateful for this Courts
generous attention to an over-length brief. Defendants and the district court have
demonstrated that the FAC provides notice sufficient to enable abundant ability to
defend, and the courts legitimate concerns may be dealt with through ordinary case
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management procedures. California Coalition is acutely aware this action poses

serious case management challenges for the district court, yet has proven a track
record of proactive attention to litigation efficiency which will continue upon
remand.
Appellants respectfully request relief as follows:
1. Reverse the July 9, 2014 dismissal with prejudice and remand with
instructions that defendants shall filed answers to the complaint within 40 days;
2. Reverse the December 19 and 23 orders dismissing claims against judicial
defendants as immune under Ashelman v. Pope and remand on instructions to
proceed consistent with the historical analysis of immunity and function under
Rehberg v. Paulk, and proceed with analysis of conspiracy claims involving judicial
defendants consistent with the analysis of judge Caputo in Wallace v. Powell;
3. Reverse the December 23 order dismissing claims against the Commission
on Judicial Performance and its employees under the Eleventh Amendment and
California Constitution and remand with instructions to proceed with the necessity
for receiving evidence prior to determining whether the Commission and its
employees are alter egos of the State of California, or acting ultra vires to their
duties;
4. Reverse the September 16, 2013 order (ER 67) finding appellants request
for leave to file a motion for witness harassment restraining order as moot and
remand with instructions that the district court to grant the motion, or grant leave to
California Coalition to file a motion;
5. Remand the case to the district court with instructions that California
Coalition shall be relieved of any requirement to obtain local counsel;
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6. Grant Appellants leave or Rule 28-1(b) to incorporate briefing, or permit

additional briefing regarding the preserved Motion for Preliminary Injunction (Doc.
No. 109) (see sec. VI.H, supra); and
7. Reverse the December 23, 2013 denial of counter-sanctions to Stuart and
remand with instructions that the district court award counter sanctions against the
Superior Court of San Diego County in an amount consistent with the calculation
offered in Stuart declaration sufficient to compensate Stuart and California
Coalition for time expended in opposing both Rule 11 motions. Doc. No. 39-2.
Respectfully Submitted,
Dated: October 22, 2014
Dated: October 22, 2014
By:
By:
Colbern C. Stuart III
Colbern C. Stuart, III, JD

In Pro Se
President, California Coalition
For Families and Children, PBC
Dean Browning Webb, Esq.

Dean Browning Webb, Esq.
Law Offices of Dean Browning Webb
Counsel for Plaintiff-Appellant
California Coalition
for Families and Children, PBC
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11-2 Appellants&#39; Openning Overlength Brief

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11-2 Appellants&#39; Openning Overlength Brief

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Case: 14-56140

Page: 1 of 86 (10 of 514)

Page: 2 of 86 (11 of 514)

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California Motor Transp. Co. v. Trucking Unl'd86  

Page: 6 of 86 (15 of 514)

Hess v. Port Authority Trans-Hudson Corporation86  

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Lake Country Estates v. Tahoe Reg. Planning Agency86  

Page: 8 of 86 (17 of 514)

N. Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P:/ 6'

Page: 9 of 86 (18 of 514)

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Page: 10 of 86 (19 of 514)

Stump v. Sparkman86  

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Westways World Travel v. AMR Corp)6XSSG &'&DOLI 

Page: 12 of 86 (21 of 514)

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CORPORATE DISCLOSURE STATEMENT

Page: 15 of 86 (24 of 514)

Page: 16 of 86 (25 of 514)

STATEMENT OF ISSUES PRESENTED

Can a district court dismiss a non-State entity asserting the affirmative

defense of Eleventh Amendment immunity without receiving facts determinative of

Does this Courts decision in Ashelman v. Pope extend absolute judicial

immunity family court judicial officers functioning in their judicial capacity as

Was Appellant Stuart entitled to leave to seek a witness harassment

restraining order to restrain defendants from threatening Appellants association

Did the district courts admonishment of California Coalitions local

Should counter-sanctions under Rule 11 be awarded to Appellants

Page: 17 of 86 (26 of 514)

STATEMENT OF THE CASE

Appellant California Coalition for Families and Children, PBC is a public

Page: 18 of 86 (27 of 514)

This action arises from an extended series of conflicts between California

Page: 19 of 86 (28 of 514)

Stuart acknowledged the sensibility of amending to refine the

Complaint, and attempted to negotiate stipulations to withdraw motions to dismiss,

Justice Stevens has generously described Section 1985 as somewhat

All Defendants moved to dismiss on statutes of limitation defenses. Doc.

Page: 20 of 86 (29 of 514)

Superior Court defendants moved on fourteen other grounds.

Mr. Webb was admitted January, 2014 (Doc. No. 94). ER 24

Page: 21 of 86 (30 of 514)

specific allegations in his amended complaint to support tolling and estoppel. ER

Stuart understood the district courts multiple references to plausible facts

Page: 22 of 86 (31 of 514)

Page: 23 of 86 (32 of 514)

Page: 24 of 86 (33 of 514)

3. Standardized Pleading of Short, Plain Claims

Motion to Take Judicial Notice (MTJN) Ex. 7.

Page: 25 of 86 (34 of 514)

Doc. No. 22-1.

proffering to amend to plead additional detail.

Doc. No. 57-1.

consummates that proffer, by extracting Commission Defendants from original

Page: 26 of 86 (35 of 514)

Page: 27 of 86 (36 of 514)

8. New Obstruction of Justice Count

11-2 Appellants' Openning Overlength Brief

11-2 Appellants' Openning Overlength Brief

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