54-1 Viviano MTD

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 1 of 23
CHARLES R. GREBING, State Bar No. 47927

c gr e b in g@w i n g er t I aw. c o m
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ANDREW A. SERVAIS, State Bar No. 239891

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DWAYNE H. STEIN, State Bar No. 261841

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WINGERT GREBING BRUBAKER & JUSKIE LLP One AmeicaPlaza, Suite 1200 600 West Broadway San Diego, CA 92101 (619) 232-815 1 ; Fax (619) 232-466s Attorneys for Defendants LORI CLARK VIVIANO and LAV/ OFFICES OF LORI CLARK VIVIANO
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF' CALIF'ORNIA
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CALIFORNIA COALITION FOR FAMILIES AND CHILDREN" a Delaware 15 Corporation. LEXEVIA. PC. a' Califomia Professionaf Corporatio, and COLBERN l6 C. STUART, an individual,
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Case No. :
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Plaintiffs,
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SAN DIEGO COTINTY BAR
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEF'ENDANTS LORI CLARK VIVIAI{O & LA\ry OFF'ICES OF LORI CLARI( VIVIANO'S MOTION TO DISMISS COMPLAINT ed. R. Civ. P. 12(bx and Fed. R. Civ. P.
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Date:
Time: Ctrm:
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Judge: Cathy Ann Bencivengo, Presiding
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a California Corporation;
fo0649573.DOCX)
LISA SCHALL,
CASC
MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT -
NO.3:13-CV-01944-CAB-BLM
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Defendants.
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MEMORAND{jM ISO MOTION TO DISMISS COMPLAINT - Case No. 3 :13-CV-01944-CAB-BLM
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TABLE OF CONTENTS
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INTRODUCTION ALLEGATIONS AGAINST VIVIANO IN COMPLAINT

THERE IS NO JURISDICTION FOR THE COMPLAINT A.
B.
Standard for 12(bX1) Motion to Dismiss for Lack of Subject Matter
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Jurisdiction
Corporate Entity Plaintif Lack Standing to File This Lawsuit......... .........4
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1. 2.
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California Coalition for Families and Children is not Represented by Counsel Lexevia is a Suspended Corporation...........
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Jurisdiction could Never be Sustained because the Complaint Violates Rule 8.............
IV.
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PLAINTIFFS' CLAIMS AGAINST VIVIANO ARE NOT

SUSTAINABLE
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A.
Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim........8

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PLAINTIFF'S' CIVIL RIGHTS CLAIMS AGAINST VIVIANO ARE TINSUSTAINABLE

Counts 3. 12.13" 14, and 15 are barred by the Two-Year Statute -Claims Limitations for Tort
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of
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Counts 3,12,13,14, and 15 Fail to Allege any Facts against Viviano ..... 10
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Plaintiffls Civil Rights Claims are barred because Viviano is not State Actor
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THE NOERR-PENNINGTON DOCTRINE PRESENTS A SEPARATE BAR.
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A. A.
B.
The Allegations Against Viviano Consist of Protected Activity.....
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VII. LANHAM ACT CLAIMS AGAINST VIVIANO ARE NOT VIABLE

be Analyzed under
RICO CLAIMS
The Complaint Fails to Allege Viviano is a Competitor with Plaintiffs.... I4
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VIII. PLAINTIFFS' VIOLATE RULE 9(B) BECAUS E THEIR
FAIL TO ALLEGE PRED ICATE ACTS WITH PARTICULARITY
rX. CONCLUSION
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MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM
TABLE OF AUTHORITIES
Page
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Supreme Court Opinions Allen v. Wright, 468 U.S. 737 (1984) Ashcroft v. Iqbal,556 U.S. 662 (2009)
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8
BE&K Constr. Co. v. NLfuB,536 U.S. 516 (2002) Bell Att. Corp. v. Twombly,550 U.S. 544 (2007)
CaL Motor Transp. Co. v. Trucking Unlimited,404 U.S. 508 (1972) ......
,8
....
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1
9
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E. R.R. Presidents Conf v. Noerr Motor Freight, Lnc.,365 U.S. I 27 (1961) Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375 (1994)
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CA
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Lujan v. Defenders of Wildlife,504 U.S. 555 (1992)

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Mine Workers v. Pennington,3Sl U.S. 657 (1965) West v. Atkins,487 U.S. 42 (1988)
Second
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Circuit Opinions
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Iqbat v. Hastyt,490 F.3d 143 (2dCir.2007)
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l6 Third Circuit Opinions t7 Accenture Global Servs. GmbH v. Guidewire Soffi,vare, nc.,581 F. Supp. 2d 654 (D. t3 DeI.2008)
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Raitport v. Provident Nat'l Bank,451 F. Supp. 522 (B.D.Pa. 1978)

Warner-Lambert Co. v. BreathAsure, Inc.,204F.3d 87 (3d Cir.2000) .... Seventh Circuit Opinions
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Hansen v. Ahlgrimm, 520
.2d 7 68 (7th Cir. 197 5)
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United States v. Lockheed-Martin Corp.,328 F.3d 374 (7thCir. 2003)
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25 26 27 28
Ninth Circuit Opinions

Balistreri v. Pacifica Police Dep't,901F.2d 696 (9th Cir. 1988)
Cafasso v. Gen. Dynamics C4 9ys.,637 F.3d 1047 (9th Cir.
8
20lL)
Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d 1115 (9th Cir. 2010) Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.),42F.3d (9th Cir. t994)
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MEMORANDUM ISO MOTION TO DISMISS COMPLAINT
Case No.3:13-CV-01944-CAB-BLM
Edwards v. Marin Park, nc.,356 F.3d 1058 (9th Cir. 2004)
............... 15
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Fed. Reserve Bank of S.F. v. HK Sys.,1997 WL 227955, at *3 (N.D. Cal. 1997) ........ 16
FLIR Sys. v. Sierra Media, Lnc.,903 F. Supp. 2d Il20 (D. Or. 2012)
Jack Russell Terrier Network v. Am. Kennel Club, nc.,407 F.3d 1027
14
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5
(9th Cir. 200s)
Jurin v. Google, nc.,695 F. Supp. 2d Il17 (E.D. Cal. 2010)

I(earney v. Foley & Lardner,553 F. Supp. 2d LI78 (S.D. Cal. 2008)
I(etchum v. CnQ. of Alameda, 811 F.2d 1243 (9th Cir. 1987)
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,,........ 12
10 9
6 7
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Knievel v. ESPN,393 F.3d 1068 (9th Cir. 2005)

Lee v. City of L.A.,250 F.3d 668 (9th Cir.
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Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,940F.2d397 (gthCir. 1991) .16
F.l
2001)
............. 9
M v)
Savage v. Council on Am.-Islamic Relations, nc.,2008
WL 2951281 (N.D. Cal. July

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25,2008)
Sosa v. DIfuECTV, Inc., 437 F.3d 923
rti
(gthCir. 2006) 13 Southland Sod Farms v. Stover Seed Co.,l08 F.3d 1I34 (9thCir. 1997) t4 St. Clair v. Chico,880 F.2d 199 (gth Cir. 1989)
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Swartz v. KPMG
L. L.
P.,
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56 (gth Cir. 2007)
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Usher v. Los Angeles,828 Yourish v. CaL
.2d 556 (9th Cir. 1987)
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Amplifier,79l F.3d 983 (9th Cir. 1999)
Eleventh Circuit Opinions

Pelletier v. Zweifel,92I F.2d 1465 (1 lth Cir. 1991) Federal Circuit Opinions
Paradise Creations, Inc. v. U
V Sales,
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16
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1nc.,315 F.3d 1304 (Fed. Cir. 2003)
California State Opinions

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Friends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado,200 CaI. App. 4th
1470
(20rt)
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Gutierrez v. G & M Oil Co.,184 Cal. App. 4th551 (2010)
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California State Statutes

Cal. Civ. Proc. Code $ 335.1 (Deering) Cal. Corp. Code $$ 2205(c), 5008.6(c) (Deering)
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Delaware State Opinions

Robbins v. P'ship
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r Bank Capital, L.P., 2010 Del. Ch. LEXIS 167 (DeI. Ch. July 23,
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Rules
Fed. R. Civ. P. 8(a)(2) Fed. R. Civ. P. I7(b)(2) S.D. Cal. Civ. R. 83.3(k)
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MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT -
CaSE NO.
3:13-CV-01944-CAB-BLM
I.
12 causes
INTRODUCTION
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Plaintiffs Colbern Stuart and his two corporate entities ("Plaintiffs) allege at least
of action against Defendants Lori Clark Viviano and the Law Offices of Lori
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Clark Viviano (collectively "Viviano"); however, the Complaint fails to allege any
actual facts to support these claims. In fact, the Complaint fails to allege any conduct
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specific to Viviano except that
in 2007 she billed Plaintiff
Stuart for legal services on
his behalf. Notably, the Complaint is silent on the nature of Viviano's connection to
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Plaintif, what services Viviano performed, or the basis for Viviano's liability related
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to her work for Plaintif.
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In order to determine the basis for any other claims, Viviano must decipher Plaintiffs' crypticlT1-page Complaint with 1,300 pages of exhibits attached. But even
close analysis of the Complaint does not reveal the basis for the claims against Viviano.

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l4 Unlike many of the other attorney Defendants, the Complaint does not provide citation
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to or quotes from Viviano's marketing materials, or statements Viviano made to
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Plaintiffs.
The majority of the Complaint makes allegations against "a11 defendants," but
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fails to make specific allegations against each individual defendant to substantiate

claims with heightened pleading standards like fraud, false advertising, and RICO
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violations. Thus, Viviano cannot determine the basis for these claims against her. This
type of complaint violates the federal court requirement that pleadings be concise. For this reason alone, Plaintiffs Complaint should be dismissed with prejudice.
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Additionally, Viviano requests the Court dismiss with prejudice the Complaint
because Plaintiffs' have failed to state valid claims against Viviano for several other reasons, including: lack of standing, failure to file within applicable statutes
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of
limitations, and failure to properly plead the allegations in the Complaint.
{00649s73.DOCX}
II.
On
ALLEGATIONS AGAINST VIVIA.NO IN COMPLAINT

Stuart was involved in an incident while attending a
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April 15,2010, Plaintiff
seminar at the San Diego County Bar Association, labeled in the Complaint as the
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"stuart Assault." (Complaint at lffl Il4,124-140.) As

Stuart to leave the semin ar. (Id. at
a result,
Sheriffls deputies forced
fl 135.) The Complaint does not allege Viviano was
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involved in the Stuart Assault.

The Complaint alleges "Defendants" owed one or more professional duties to
plaintiffs, including the duty of ordinary reasonable cae, the duty to act reasonably, and
to avoid acting rnreasonably and culpably. (Complaint at flfl I5I-I52, subd. A.)
The Complaint alleges Defendants utilize false and misleading commercial
speech to advertise and offer their legal services. (Complaint at
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fl 260.) Defendants'
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cofimercial speech represents they abide by ordinary and professional standards of care. (Complaint at Jf 26I.) Defendants operate criminal enterprises depriving Plaintiffs of
their property and liberty,lutllizing misrepresentations in their commercial speech
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(Complaint at fl 266.) Forty-eight named Defendants engaged in activities constituting a RICO

enterprise through apatternof racketeering activity. (Complaint at ufl 268-27L
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) For
example, Defendants engaged in the San Diego Family Law Community Domestic
Dispute Industry Enterprise (SD-DDICE) civil and criminal conspiracy. (Complaint at
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1[1275-276.) The DDICE complete illegally in the markelace through "mutual

anticompetitive pacts, fraudulent licensing, certification, specialization, excluding or deterring fair competition." (Complaint at tf 280.)
Defendants Blanchet, Bierer,Frrn, Viviano, Doyne, Inc., form the "Stuart Ad
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Hoc Criminal Enterprise" which commits several frauds in the practice family law, child
custody, and domestic relations. (Complaint at nn288-2gg.) Between July 2007 and Decernber 2007 Viviano communicated fraudulent invoices for payment worth approximately $45,000. (Complaint at !i 339.)
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MEMORANDI]M ISO MOTION
DISMISS COMPLAINT
Case No. 3:13-CV-01944'CAB-BLM
Plaintif appear to allege the following

addition to numerous other defendants:
causes of action against Viviano,
in
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Count 3-Culpable Breach of Duty under Govt. Code $ 820 /Deprivation Constitutional Rights 42 USC 1983 (Complaint at llt]
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of
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l-157 .)
Count 12-Obstructing justice; intimidatinEpa,witness, or juror 42 USC

198s(2) (Complaint at lffl 193-204.)
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Count l3-Conspiracy to Deprive Rights and Privileges 42 USC 1985(3)(a) (Complaint at flfl 205-206.) Count l4-Conspiracy deprive of Constitutional Rights 42 USC 1985(3Xb) (Complaint at flfl 207-208.) Count 15-Conspiracy to Deprive of Constitutional Rights 42 USC 1985(3)(c) (Complaint at flfl 209-210.)
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o Count 2l-False Designation of Origin, False Description

1125 (Complaint at ffi260-267.)
Lanham Act 15 USC
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RICO Enterprise l-California Domestic Dispute Criminal Enterprise (Complaint at tffl 273-274.)
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RICO Enterprise 2-San Diego Family Law Domestic Dispute Industry Criminal (Complaint at flfl 275-280.)
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o RICO Enterprise 5- DDIA/DDIPS Ad Hoc Criminal Enterprise (Complaint at flfl

257-28s.)
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Racketeering Claim
1-18 USC 1962(c)(d) Frauds and Swindles 18 USC
$ 1341
(Complaint at flfl 337-344.)
o Racketeering Claim 2-18 USC 1962(c)(d) Honest Service Fraud 18 USC 1346
18 USC $ 1346 (Complaint at lffl 34s-347.)
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Declaratory Judgm ent 28 USC 2201 (Complaint at lffl 392-396.)
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III.
R THE COMPLAII{T
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A.
Standard for 12(bX1) Motion to Dismiss for Lack of Subiect Matter
Jurisdiction
Article III of the U.S. Constitution limits the subject matter jurisdiction of federal
courts to matters that are ripe and where the Plaintiffs have standing. Allen v. Wright, 468 U.S. 737,750 (1984). The party asserting subject matter jurisdiction has the burden
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of establishing it is the proper party to bring the matter before the court. Kokkonen
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
v.
(lgg4).
The doctrine of ripeness
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allows a court to dispose of matters that arepremature or too speculative. To establish

federal subj ect matter j urisdiction:
F'irst, the plaintiff must prove that he suffered an "injury infact," i.e., an "invasion of a
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legally protected interest which is (a) concrete and particulanzed, and (b) actual or
imminent, not conjecfural or hypothetical," Id. at 560 (citations, internal quotation
l4 marks, and footnote omitted). Second, the plaintiff must establish a causal connection
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by provingthather injury is fairly traceable to the challenged conduct of the defendant.
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Id. at 560-6L Third, the plaintiff must show that her injury will likely be redressed by
a favorable decision.Chandler v. State Farm Mut. Auto. Ins. Co.,598 F.3d
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1ll5,II2l-
(,
22 (gthCir.2010), quoting Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61
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(1992). Standing and ripeness are properly raised in a motion to dismiss under Rule
Iz(b)(l). Sr. Clair
v. Chico,880 F.2d 799,201(9th Cir. 1989).
2l B.
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Cornorate Entitv Plaintiffs Lack Sfandin to File This f,awsuit

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California Coalition for Families and Chilrlren is not Reoresented bv

Counsel
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Whether a corporation can fle suit in federal court is determined "by the law in
which it was organized.l' Fed. R. Civ. P.I7(b)(2). The California Coalition for
Families and Children, Inc. ("CCFC") is a Delaware corporation, incorporated the day before the current action was filed. (Complaint atfl 1; RIN, at Ex. 1, November 25,
2013, Delaware Department of State "Entity Details" print-out for Plaintiff California
10049573.DOCX)
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4 MEMORANDTM ISO MOTION TO DISMISS COMPLAINT
Case No. 3:13-CV-01944-CAB-BLM
Coalition for Families and Children.) Accordingly, CCFC's abilify to file a lawsuit is
governed by Delaware law, which states a corporation must appear through counsel and cannot proceed in propria persona. Robbins v. P'ship
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for Bank Capital, L.P.,2010 Del.
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Ch. LEXIS 167, at*2 (Del. Ch. July 23,2010). Additionally, this Court only allows a
corporation to appear through an attorney permitted to practice in the Southern District
of California. S.D. Cal. Civ. R. 83.3(k).

The Complaint in this action identifies Colbern Stuart and Dean Browning V/ebb,
as attorneys of record for Plaintiffs CCFC and Lexevia,
PC. (Complaint atpage
1, lines
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1-8.) The Complaint alleges Stuart is an attorney licensed and admitted to practice in California, Arizona, ffidNevada,
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as
well
as many federal
district courts. (Complaint at
3, 102-106,Ex.2.)
However, Stuart is unable to appear as counsel for CCFC because was disbarred
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in California in December 2012 due to his criminal conviction for threatening and
attomey status printout for Colbern Stuart, with State Bar Court decision and order
l4 harassing his ex-wife. (RIN at Ex. 3, Decernber 2,2013, State Bar of California
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attached.) Further, Stuart's Nevada and Anzonalegal licenses are cuffently suspended.
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Colbern Stuart, with State Bar Court decision and order attached; and, RJN at Ex. 5,
December 2,2}l3,State Bar of Arizonaattorney status print out for Colbern Stuart.) Because Stuart is not licensed to practice in the Southern District, or anywhere else, he cannot act as CCFC's counsel in this matter.
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CCFC's other purported counsel, Mr. V/ebb, is licensed in the state of V/ashington. The Complaint states Mr. Webb has an application for "pro hac vice
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pending." (Complaint atpage 1, line 4.) However, this application is not reflected in
the Court's docket for this case. Additionally, Mr. Webb failed to sign the Complaint.
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(Complaint at page 171, lines 11-14.) Thus, Mr. V/ebb cannot act as CCFC's counsel
either. Because CCFC is attempting to proceed without counsel in violation
{00649s73.DOCX}
of
Delaware law, the Court should dismiss with prejudice all of CCFC's claims in this
action.
2.
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Lexevia is a Suspended Corporation
Lexevia is a California professional corporation, governed by California law.
(Complaint at fl 1.) According to the California Secretary of State, Lexevia is currently

a suspended corporation. (RIN at Ex. 5, Novemb er 25,2013, California Secretary State Business Entity detail status printout for Lexevia,
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of
PC.) A suspended corporation
lacks capacity to sue in California. Friends of Shingle Springs Interchange, Inc. v. CnQ.
of El Dorado,200 CaI.App. 4th 1470,1482 (2011);Cal. Corp. Code $$ 2205(c),
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5008.6(c) (Deering). Additionally, a plaintiff corporation must have standing to sue in federal court under Article
III of the Constitution. Paradise Creations, Inc. v. U V it
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Sales, nc,,315 F.3d 1304, 1308 (Fed. Cir. 2003). Standing is determined at the
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inception of the suit; thus, a suspended corporation lacks capacity to sue even if revives its status following cofnmencement of a lawsuit. Id. at 1309-10.
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As a suspended corporation, Lexevia lacks capacity to maintain this action.
l6 Further, Lexevia has appeared in this action without counsel. Similar to Delaware law,
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a California corporation may only appe ar
in anaction through counsel. Gutierrez v.
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G &M Oit Co., 184 Cal. App. 4th551,564 (2010); see also S.D. Cal. Civ. R.83.3(k).
l9 Because Lexevia is not represented by counsel, the Court should dismiss with prejudice
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all Lexevia's claims in this action.
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C.
Jqrisdiction could Never be Sustained becauqe the Complai4t Violates Rule

Federal Rule of Civil Procedure 8 requires hat a complaint contain "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ.
P. S(aX2)
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analyzing this issue, the Ninth Circuit has stated:
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and we know of no authority supporting the [W]e have never held proposition that a pleading may be of unlimited length and opacity. Our cases instruct otherwise. See, e.g., McHenry v. Renne,84 F.3d 1 172, ll77' 80 (9th Cir. 1996) (upholding a Rule 8(a) dismissal of a complaint that was "argumen tativ e, prolix, replete with redun dancy, and largely irrelev ant"); Hatch v. Reliance Ins. Co.,758F.2d409,415 (gthCir. 1985) (upholding a
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MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT
CASE NO.
3:13.CV-01 944-CAB-BLM
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nule 8(a) dismissat of a complaint that "exceeded 70 pages in length, *us confusing and conclusory"); Nevijel v. North Coast Life Ins. Co.,651 r 2d 671,674 (9th Cir. 1981) (holding rhat Rule 8(a) is violated when a .omplaint is excessively "verbose, confusing and almost entirely .onclusory'); Schmidt v. Herrmann,614F.2d 1221,1224 (9th Cir. 1980) (upholding a Rule 8(a) dismissal of "confusing, distracting, ambiguous, and u"intelligible pleadings").... Rule 8(a) has "been held to be violated by a
pteading that was needlessly long, or a complaint that was r.petitious, or confused, or consisted of incomprehensible tCitation.l Our district courts are busy enough without having to r tome approaching the magnitude of War and Peace to discern plaintiffls claims and
fand
allegations."
highly rambling." penetrate a
llCofotto v. Gen. Dynamics C4 }ys.,637 F.3d 1047,1058 (9th Cir. 201 1) (request to file
complaint
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denied).
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tne Complaint in this action is 175 pages in length.
The length balloons
to and
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llannroximately l4 llis also extremely difficult to follow. It attempts to weave a complicated criminal who ever touched one of Mr. Stuart's court matters. 15 ll.iuil conspiracy between everyone
1,300 pages when the voluminous exhibits are included. The
Comnlaint
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llfne
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,lsn rtilizes incomnrehensihle network of acronyms acronr with utilizes an incomprehensible Complaint also
passager ,
"ltlhe SD-DDICE acting in concert with the San Diego DDIJO, SCCDC, SDCBA,
and the SAC engage
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22
23
the ll lldefendants and the Court "to penetrale a tome approaching the magnitude of War and discern [the] plaintiff s claims and allegat ions;' Id. Additionally, the llrr*rto llComplaint asserts no less than 12 claims against Viviano that are "confusing and Id..This Complaint requires the Court and Defendants to "try to fsh a llrorrrfuro ry."
t*s,
the Complaint consists of "incomprehensible rambling" and requires
IIDDISO,
(Complaint at fl
279.)
(Jnited States v. Lockheed-Martin Corp.,328 24 llgof coin from a bucket of mud[,]"

25
lluo,37'
(7thcir.2oo3).
F.3d
26 27
28
dismiss withprejudice the entire compraint ror ra'ure
to
ll'"-rJi:;iii:u1d
il
{00649s73.DOCX}
2
J
ll"'1
II
,".
PLAINTIFFS, CLAIMS AGAINST VIVIANO ARE NOT SUSTAINABLE

of Civil Procedure rule 12(b)(6) allows
a defendant to
ll
il
t***"les
challenge
I
4
5
of the pleadings where the pleadings either "lack a cognzable legal theory"
6 7
8
llfornrt
llsufficiency "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri llor Police Dep't, g0l F.2d 696,699 (9th Cir. 19SS). In recent years, the
v.
U.S.
9 10
11
M
CA
&
M
rl
ll'4i:1:::ji::'*!::i
llro"tui" llu
suffrcient factual matter, accepted as true, to 'state a claim for relief that
on its face.
is
l2
13
"' Ashcroft,
556 U.S. at 678 (citin g Bell
Atl. Corp. v. Twombly, 550
llnlausible s s44, s70
(2007)).
t4
15 L6
r|1
z
a
ll
llattows
"O claim has facial plausibility when the plaintiff pleads factual content
that the court to draw the reasonable inference that the defendant is liable for the
alleged|' Id. (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 556 (2007)).
o tr 14 \,
rl
llmisconduct
il
l7 ll"D.t.r-ining whether a complaint states a plausible claim for relief will ... be a context18 task that requires the reviewing court to draw on its judicial experience and
llspecific
t9
20
ll
il
ll.o-*on
sense." Id.
at
679
(citing Iqbat v. Hasty,
4g0
F.3,143,157-58 (2d, Cir.2007)).

I I
tfre Court must therefore "identiff the allegations in the complain tthatare
2I
22
23
llu
llentitled Ashcroft,556 llcomplaint to determine if they plausibly suggest an entitlement to relief." at 680-81 . But only factual allegations must be accepted as true, not
not to the assumption of truth" and evaluate "the factual allegations in [the] legal
24
llconclusi
25
ons. Id. at
678.
by
to
Id.
Factual allegations "must be enough
ll
ll**.
llraise
il
Urrther, "[t]hreadbare recitals of the elements of a cause of action, supported

conclusory statements, do not sufftce."
a
26 27 28
right to relief above the speculative level." Bell Atl. Corp.,550 U.S. at
555.
{oo649573.DOCX}
MEMORANDIJM ISO MOTION TO DISMISS COMPLAINT
"[O]nly
a complaint that states a plausible claim for
relief survives
motion to dismiss."
2
J
Ashcroft, 556 U.S. at 679.
Finally, in ruling on a motion to dismiss, this Court may take judicial notice of
matters of public record that are not subject to reasonable dispute. Lee v. City of L.4., 250 F.3d 668,689 (9th Cir. 2001). The Ninth Circuit has "extended the 'incorporation
4
5
6 7
8
by reference' doctrine to situations in which the plaintiff s claim depends on the

contents of a document, the defendant attaches the document to its motion to dismiss,
and the parties do not dispute the authenticity of the document, even though the
r
F
9 10
11
plaintiff does not explicitly allege the contents of that document in the complaint."
See
FI
f
h
Knievel v. ESPN,393 F.3d 1068, 1076 (9th Cir. 2005) (9th Cir. 2005.) Accordingly,
this Court may appropriately review the government issued documents associated with Stuart's status as a disbarred or suspended attomey and the status of the corporate
u)
M
q
t2
13
rl
plaintiffs.
t4
15
V. A.
PLAINTIF'tr'S' CIVIL RIGHTS
AGAINST VIVIANO ARE
z
q
UNSUS TAINABLE
o
F
&
tl
l6 l7
18
1,9
Counts 3.12.13.14. and 15 are
ed bv the Two-Year Statute
of
Limitations for Tort Claims

Federal court claims brought under Sections 1983 and 1985 are regulated by the
r4
B
20
2T
applicable statute of limitations of the forum state in which the claim is brought. Usher
v. Los Angeles,828 F.2d 556, 558 (9th
Cir. 1987). Accordingly, a tort claim in
California must be filed within the two-year statute of limitations. Cal. Civ. Proc. Code
$ 335.1 (Deering).
22
23
Although Count 3 alleges civil rights violations for defendants' breach of

ambiguous duties, Plaintiffls 1983 and 1985 claims against Viviano are actually based on the so-called "stuart Assault." Count 12 alleging obstruction ofjustice, etc. is based on the allegation that the Stuart Assault hindered the administration ofjustice for
24 25 26 27
28
Plaintiffs. (Compl aint aLn2.) Counts
13 through 15 allege all Defendants violated at
Plaintif' civil rights by committing the Stuart Assault. (Complaint

{oo649573.DOCX}
flfl 205-210,216-

il il
I llZlS. Thus, each of these claims is based on the facts concerning the Stuart Assault.
il
il
2
J
llEach of these claims is a tort-based action controlled by California law.
ll
il
il
However, the Complaint alleges the Stuart Assault occurred on April 15,2010.
tT
4
5
llLaL)
ll(Complaint at
114.) Plaintiffs filed their Complaint on August 20, 2013, three years
llun fou, months after the Stuart Assault. Because Counts 3 and
l2-I5
are tort based
6 7
8
llclaims, they must have been filed within Califomia's two-year statute of limitations. llThis did not occur; hence, each of the 1983 and 1985 claims against Viviano must be
il il
ll
il
dismissed with prejudice.
H F
llB.
ll
Counts 3, 12, L3. 14. and L5 Fail to Allese any Facts asainst Viviano
f V)
10
11
rl
M
q
T2 13
ll lletaintiffs' civil rights by committing the Stuart Assault. (Complaint at lffl 205-210,216ll"e
However, the Complaint fails to identifu Viviano's connection to the Stuart
O, discussed above, Counts 3 and 12 tl'trough
15 allege all Defendants violated
llAssault. The Complaint does not allege Viviano was present at the seminar on April 15,
il
11235.)
z
a
q o
14 15
112010.
II
The Complaint does not state facts alleging Viviano was part of the "conspiracy"
llro nuu. Stuart ejected from the seminar. In fact, the Complaint does not mention
(, tl
F
t6 llViuiutro at all in reference to the Stuart Assault.
t7
18
z
F
llcivil rights violations against Viviano are not valid claims, and must be dismissed with
il
ll il-
*ithout
facts alleging Viviano's participation in the Stuart Assault, the claimed
t9 llpre.udtce.
20
2T
llC.
ll rll
il il
il
ll-
Plaintiff's Civil Rishts Claims are barred because Viviano is not a State Actor
22
23
t"
state a claim under Section 1983, a plaintiff must allege: (1) a violation of a
llright secured by the Constitution and the laws of the United States; and (2)that the
lldeprivation was committed by a person acting under color of state law. See West v.
24
25
llAtkins,487 U.S. 42, 48 (1988); Ketchum v. Cnty. of Alameda, 8l

il
1F
.2d 1243, 1245 (9th
26 27
28
llCir. 1987).
il
ll
il
I"
this case, the Plaintiffs' allegations against Viviano consist of general issues
llffui.rtiff, have with the family court system. Other than Viviano's connection to the
{00649s73.DOCX}
10
I
2 J
a
family court system as a practicing attorney, the Complaint fails to allege Viviano has
any relation to the government, or was working under color of state
law. This
does not
make Viviano a state actor because "aprivate attorney, while participating in the trial
a private state court action, is not acting under
of
v.
4
5
color of state law." Raitport v. Provident
Nat'l Bank,451 F. Supp. 522,531 (8.D. Pa. 1978) (emphasis added) (quoting Hansen
Ahl grimm, 520 F .2d 7 68, 7 7 0
(7
6 7
8
th Cir.
97
5) (citations omitted)).
There are simply no facts alleged that support a claim Viviano is a state actor.
Without said allegations, Viviano cannot be liable for civil rights violations under
Sections 1983 and 1985. Accordingly, Plaintiffs claims against for civil rights
9 10
11
Fl
f
(A
violations against Viviano are invalid, and should be dismissed with prejudice.
VI. A.
THE I{OERR.PEN{INGTON D BAR
INE PRESENTS A SEPARATE
/,
M
l
L2
T3
The Allesations Asainst Viviano Co nsist of Protected Activitv

The Noerr-Pennington doctrine provides that "those who petition any department
q (,
T4 15
z
rl
rtsl a
of the government for redress are generally immune from statutory liability for their
t6 petitioning conduct." Sosa v. DIRECTV, nc.,437 F.3d923,929 (9th Cir. 2006). It

17 18
initially emerged in the antitrust context. E. R.R. Presidents Conf v. Noerr Motor
Freight, nc.,365U.5.127 (1961); Mine llorkers v. Pennington,38l U.S. 657 (1965).
Recognizing the
rrl
z
F
t9
20
"'rightto petition
extends to all departments of the government"' and
includes access to courts, the Supreme Court extended the doctrine to provide immunity
2t
22
23 24
25
for the use of "'the channels and procedures' of state and federal courts to advocate
causes." Sosa, 437 F.3d at 929-30 (quoting Cal. Motor Transp. Co. v. Trucking
Unlimited,404 U.S. 508, 510-11 (1972)). "Under the Noerr-Pennington rule of statutory construction, we must construe
federal statutes so as to avoid burdening conduct that implicates the protections afforded by the Petition Clause unless the statute clearly provides otherwise." Sosa,437 F.3d at
26 27 28
937. "lTlhe law of this circuit establishes that communications between private parties
are sufficiently within the protection of the Petition Clause to trigger the Noerr{00649573.DOCX}
11
MEMORANDUM ISO MOTION TO DISMISS COMPLAINT- Case No.3:13-CV-01944-CAB-BLM
2 J
4
5
6 7 8 9
FI FI t
H
lladopted a three-part test to determine whether the defendant's conduct

llf f I
il
to ll"urrro*ia's anti-SLAPP statute and applies to protect defendants whose alleged llconduct invokes the right to petition the government for a redress of grievances. v. Foley & Lardner,553F. Supp. 2d 1178,1181 (S.D. Cal. 2008).) ll(Kearnel t BE&K Constr. Co. v. NLRB,536 U.S. 516,525 (2002), the Supreme Court ll is immunized:
lle..ruf courts have determined that lhe Noerr-Pennington docfrine is analogous
il il
llr*r--on
docffine,
so long as they are suffciently related to petitioning
activi ty;'Id.
irntify whether the lawsuit imposes a burden on petitioning rights, (2)

the alleged activities constitute protected petitioning activity, and
decide
(3) analyze
ll*n"tn",
10
11
v v)
h
preclude that burden on the llwhether the statutes at issue may be construed to llpetitioni,rg activity . Id. at530-33, 535-37
protected

H
q
t2
13
the llallegations against Viviano. However, the claims asserted against Viviano show
il
ll
O" the face of the Complaint, it is difficult to determine the basis for
base them on alleged actions taken by Viviano acting in an
I4
15 16 T7 18
rb
z
o F
f
f ()
t9
20
2l
22
23
llunder llduring the litigation of the matter for which she was retained. This would clearly hinder
duties with her one-time role as Stuart's attorney. Counts 12-15 are based on llassociated feeations of civil rights violations perpetr ated against Stuart as part of the family llcourt system. According to the Complaint, the RICO allegations against Viviano are llrrur. on invoices sent for legal work performed for Stuart. tnis is the exact type of activity protected by Noerr-Pennington. Yiviano's ll activities would unquestionably be burdened if she could be held liable lln.titiorring RICO or for federal civil rights violations for advice given to her own clien,
llrelationship with Stuart. Count 3 alleges Viviano breached the professional
il
llt,.t*t*.'
attorney-client
I I
af
ll
il
24 llne, aUifitv to act

25
il
within the procedures of the family court
system.
of
ll
il
S.cond, Plaintif have not alleged any facts against Viviano which fall outsid.
26 llprotected 27
28
petitioning activity. The allegations in the Complaint establish
Viviano's
llconaurt
was directly linked to Stuart's divorce proceedings, just like all the
other
petitions
I I
in the Complaint. Furthermore, "in the litigation context, not only

t2
CASC
llalleeations
{oo649573.DOCX}
MEMORANDT]M ISO MOTION TO DISMISS COMPLAINT _
NO.3:13-CV-01 944-CAB-BLM
sent directly to the court in the course of litigation, but also
oconduct
incidental to the
2
J
prosecution of the suit' is protected." Sosa,437 F.3d at.934. Hence, all the conduct
aileged against Viviano is protected.
4
5
Finally, Ninth Circuit authority has made clear that, under these circumstances,
the RICO statute cannot be construed to preclude the burden on this petitioning activity.
6 7
8
Id. at 933. Plaintiffs' vague allegations that Viviano was somehow indirectly involved
in certain misrepresentations changes nothing. Viviano's conduct while acting both
an attorney in the family court and as Stuart's attorney is protected.
as
9 10
11
1,2
For all of these reasons Plaintiffs' claims, which seek to impute protected
FI FI
r
(A
petitioning activity, arebarredby Noerr-Pennington doctnne, ffid Plaintiffs' Complaint

should be dismissed with prejudice.

f
q
VII. LANHAM ACT CLAIMS A
T VIVIANO ARE NOT VIABLE
13
To allege aLanhamAct violation, Plaintiffs must allege Viviano (1) "made false
or misleading statements as to his own product for another's]"; (2) "there is actual deception or at least a tendency to deceive a subst antialportion of the intended
t4
z
fq
l5
t6
T7 18 T9
ri
F
f! ()
audience"; (3) "the deception is material in that it is likely to influence purchasing

decisions"; (4) "the advertised goods traveled in interstate commerce;" and (5) "there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will,
etc." L/arner-Lambert Co. v. BreathAsure, fnc.,204F.3d87,91-92 (3d Cir.2000);

Southland Sod Farms v. Stover Seed Co.,108F.3d I 134,1139 (9th Cir. 1997). Under this standard, a'laintiff must set forth what is false or misleading about a statement,
and why
20
2t
22
23
it is false." Decker v. GlenFed, Inc. Qn re GlenFed, Inc. Sec. Litig.), 42 F.3d 154I,1548 (9th Cir. Igg4). To allege aLarrttarnAct claim due to misleading
plaintif are "required to allege facts suggestingthat the marketplace
was,
24
25
statements,
actually confused or misled, not just that the marketplace could have been confused or
26 27 28
misled." Accenture Global Servs. GmbH v. Guidewire Softwre, fnc.,581 F. Supp. 2d

6s4,666-67 (D. Del. 2008).
{00649573.DOCX}
13
MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT _ Case No.3:13-CV.01944-CAB-BLM
A.
The Complaint Fails to Alleee Viviano is a CoTnpetitor with Plaintiffs
2
J
a
A claim for false advertising under the Lanham Act will not be sustained "[w]ithout a showing of direct competition." Jurin v. Google, [nc.,695 F. Supp. 2d
4
5
III7, lI22 (8.D. Cal.2010).
In Jurin, the court granted defendant's 12(b)(6) motion to
dismiss because there was no showing plaintiff and defendant were direct competitors,
stating: "fd]efendant nonetheless does not directly sell, produce, or otherwise compete
l
8
in the building materials market." To maintain a claim for false advertising under the
Lanham Act the parties have to be direct competitors.
Id. A claim for false advertising
rl
9 10
FI
v (A
under the Lanham act requires: "that the injury is 'competitive,' or harmful to the
plaintiff
ability to compete with the defendant." Jack Russell Terrier Networkv. Am.
a
fl
t1
Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir. 2005). In the Ninth Circuit
plaintiff
t2
13
must be in "acfi)al" or "direct" competition with the defendant and assert a competitive
v
& a ()
injury to establish standing. FLIR ^s. v. Sierra Media, nc.,903 F. Supp. 2d 1120, t4 II42 (D. Or. 2012).
15
z
rJl
Count
2I ofthe Complaint alleges violation
of the Lanham Act against all
tl
t<
l6 Defendants. However, the Complaint fails to allege Viviano is a direct competitor with
17 18
Plaintiffs. Plaintiff Stuart is a disbarred attorney,
and cannot practice in the
family court
system. Plaintiff Lexevia is a suspended corporation, and cannot by definition be in

competition with Viviano. Plaintiff CCFC did not even exist until the day before the
t9
20
Complaint was filed, thus it could not have been in competition with Viviano at the time of the events alleged in the Complaint.
2t
22
23
Plaintiffs'LanharnAct claims must fail because none of the Plaintiffs is in

competition with Viviano, and these claims should be dismissed with prejudice. B.
24 25 26 27 28
Plaintiffs' Lanham Act Allesations m ust be Analvzed under Heishtened

X'raud Pleadine Standard Under Federal Rule of Civil Procedure 9(b), claims alleging fraud are subject to
a
heightened pleading standard requiring the plaintiff to 'istate with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). "[T]he plaintiff must set forth
{00649s73.DOCX}
t4
an explanation as to why the statement or omission complained of was false or
2
J
a
misleading." Yourish v. CaL Amplifier,l9l F.3d 983, 993 (gthCir. 1999). To avoid
dismissal, Rule 9(b) requires plaintif to allege the "time, place and specific content the false representations as well as the identities of the parties to this representation."
of
4
5 6
Edwards v. Marin Park, 1nc.,356 F.3d 1058, 1065-66 (9th Cir.2004).

The Lanham Act allegations against Viviano fail to meet the Rule 9 pleading
7
8
standard. The Complaint merely alleges misleading advertising against all Defendants.
(Complaint at flfl 260,265.). The complaint contains no further allegations specific to Viviano related to the LanharnAct claims. Unlike many other RICO Defendants, the Complaint fails to provide specific statements attributed to Viviano. Thus, the Complaint fails to explain how Viviano has been misleading or the exact the statements
FI
F.l
9 10
11
M (/)

rl
t2 which are allegedly fraudulent.

13
M
q
For these reasons, Plaintif Lanham Act claims are not properly pleaded against
l]] o
l4 Viviano and must be dismissed with prejudice.

15
z
q
VIII. PLAINTIFFS' VIOLATE RULE
BECAUSE THEIR RICO CLAIMS
ri
r o
rl
t6
17 18
F'AIL TO ALLEGE PREDICATE A CTS WITI{ PARTICULARITY

The Complaint fails to expressly identifu any RICO predicate acts by Viviano,
t<
but again simply refers to several acts by "Defendants." To avoid dismissal, Rule 9(b)
l9 requires that Plaintif state the "time, place and specific content of the false
20
representations as well as the identities of the parties to this representation." Id.
2t
22
23 24
25
Further, a"plaintiff must set forth what is false or misleading about a statement, and
why it is false." Decker v. GlenFed, Inc.,42F.3d I54I,1548 (9th Cir. 1994). Plaintiffs have done none of these things. "Rule 9(b) does not allow a complaint
to merely lump multiple defendants together but 'require[s] plaintiffs to differentiate
their allegations when suing more than one defendant... and inform each defendant
separately of the allegations surrounding his alleged participation in the fraud."' Swartz
v. KPMG
26
27
28
L.L.P.,476F.3d756,764-65 (9th Cir. 2007). Courts have repeatedly insisted
that, in addition to particularity of time, place, and manner of eachacir of fraud, the role
{00649s73.DOCX}
15
of each defendant in each scheme be described in RICO actions alleging the predicate
acts of fraud. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. 405
2 J
Dist.,940F.2d397,
(gthCir. 199I). The Complaint fails to identify the time, place or manner of any
4
5
act of fraud alleged against Viviano. The Complaint also fails to state Viviano's role in any of the alleged RICO schemes.
6 7
8
In Pelletier v. Zweifel,92l F.2d 1465, 1518-19 (1 1th Cir. I 991), the Eleventh
Circuit affirmed the district court's dismissal of a RICO claim because it constituted "shotgun" pleadings that made it extremely difficult for the court and opposing parties
to identify the facts that would give rise to a cognizable claim. Id. aI 1518 (noting that
defendant and "the district court had to sift through the facts presented and decide for themselves which were material to the particular cause of action asserted, a difficult and
9
i
tsl
Fl
f
U)
h
10
11
trl
M
"8
t2 laborious task indee d."; see also Savage v. Council on Am.-Islamic Relations, Inc., 2008
t3
&
WL 2951281, at *14 (N.D. Cal. July 25, 2008) (RICO claim insufficient where plaintiff
set forth a "redund antnarrative of allegations and conclusions of law, but fmade] no
t4
15 T6
z
Ir
attempt to allege what facts are malerial to his claims under the RICO statute, or what facts are used to support what claims under particular subsections of RICO"); Fed.
Reserve Bank of S.F. v.
t! o
t7
18
T9
HK
Sys., 1997 f|/L 227955,
at *3 (N.D. Cal. 1997) (complaint
insufficient for failure to "identify exactly which acts are 'predicate acts' for RICO
liability").
Similarly here, Plaintiffs' RICO allegations, just like the majority of allegations in
the Complaint, "merely lump multiple defendants together" to allege wide ranging
schemes and conspiracies. The Complaint is 175 pages long
20
2T
22
23
with almost 400
paragraphs. Due to the length of the Complaint and its continual use of confusing acronyms, Viviano is required to "sift through the facts presented and decide for themselves which were material to the particular causefs] of action asserted" against
24
25
26 27 28
them. Under these circumstances, it is nearly impossible for Viviano to determine

which,
if any, predicate acts are alleged against her. This format of Complaint
r6
violates
Rule 9(b).
{0064es73.DOCX}
MEMORANDTJM ISO MOTION TO DISMISS COMPLAINT
CASE NO.
3:13-CV-01944-CAB-BLM
Plaintiffs' complete failure to properly plead the RICO claims against Viviano with the specificity required by Rule 9 requires dismissal with prejudice.
2
J
IX.
CONCLUSION
4
5
For the above reasons, Defendants Lori Clark Viviano and The Law Offices
of
Lori Clark Viviano request the Court dismiss Plaintiffs' Complaint with prejudice.
Respectfully submitted,
6
7
Dated: December 4,2013

8
WINGERT GREBING BRUBAKER & JUSKIE LLP
9
i
J f
b
FI
10
11
By:
M v)
tl
M
t2
13
s/ Charles R. Greb Ln CHARLES R. GREBING ANDREW A. SERVAIS Attornevs for Defendants LORI CTANI( VIVIANO ANd LAW OFFICES OF'LORI CLARK VIVIANO
& q (\
T4 15 T6
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Fq
rl

F
F
rq
t7
18 T9
20
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22
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24
25 26 27 28
T7
{00649573.DOCX}
MEMORANDIJM ISO MOTION TO DISMISS COMPLAINT

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Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 1 of 23

CHARLES R. GREBING, State Bar No. 47927

ANDREW A. SERVAIS, State Bar No. 239891

DWAYNE H. STEIN, State Bar No. 261841

UNITED STATES DISTRICT COURT

SAN DIEGO COTINTY BAR

Judge: Cathy Ann Bencivengo, Presiding

MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT -

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 2 of 23

MEMORAND{jM ISO MOTION TO DISMISS COMPLAINT - Case No. 3 :13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 3 of 23

INTRODUCTION ALLEGATIONS AGAINST VIVIANO IN COMPLAINT

Corporate Entity Plaintif Lack Standing to File This Lawsuit......... .........4

PLAINTIFFS' CLAIMS AGAINST VIVIANO ARE NOT

Standard for 12(b)(6) Motion to Dismiss for Failure to State a Claim........8

PLAINTIFF'S' CIVIL RIGHTS CLAIMS AGAINST VIVIANO ARE TINSUSTAINABLE

THE NOERR-PENNINGTON DOCTRINE PRESENTS A SEPARATE BAR.

The Allegations Against Viviano Consist of Protected Activity.....

VII. LANHAM ACT CLAIMS AGAINST VIVIANO ARE NOT VIABLE

The Complaint Fails to Allege Viviano is a Competitor with Plaintiffs.... I4

VIII. PLAINTIFFS' VIOLATE RULE 9(B) BECAUS E THEIR

FAIL TO ALLEGE PRED ICATE ACTS WITH PARTICULARITY

MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 4 of 23

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992)

Iqbat v. Hastyt,490 F.3d 143 (2dCir.2007)

Raitport v. Provident Nat'l Bank,451 F. Supp. 522 (B.D.Pa. 1978)

Hansen v. Ahlgrimm, 520

.2d 7 68 (7th Cir. 197 5)

United States v. Lockheed-Martin Corp.,328 F.3d 374 (7thCir. 2003)

Ninth Circuit Opinions

MEMORANDUM ISO MOTION TO DISMISS COMPLAINT

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 5 of 23

Edwards v. Marin Park, nc.,356 F.3d 1058 (9th Cir. 2004)

(9th Cir. 200s)

Jurin v. Google, nc.,695 F. Supp. 2d Il17 (E.D. Cal. 2010)

Knievel v. ESPN,393 F.3d 1068 (9th Cir. 2005)

Savage v. Council on Am.-Islamic Relations, nc.,2008

WL 2951281 (N.D. Cal. July

56 (gth Cir. 2007)

Usher v. Los Angeles,828 Yourish v. CaL

.2d 556 (9th Cir. 1987)

Amplifier,79l F.3d 983 (9th Cir. 1999)

Eleventh Circuit Opinions

1nc.,315 F.3d 1304 (Fed. Cir. 2003)

California State Opinions

Gutierrez v. G & M Oil Co.,184 Cal. App. 4th551 (2010)

California State Statutes

MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM

Case 3:13-cv-01944-CAB-BLM Document 54-1 Filed 12/04/13 Page 6 of 23

Delaware State Opinions

MEMORANDI]M ISO MOTION TO DISMISS COMPLAINT -

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specific to Viviano except that

in 2007 she billed Plaintiff

Stuart for legal services on

to her work for Plaintif.

to or quotes from Viviano's marketing materials, or statements Viviano made to

fails to make specific allegations against each individual defendant to substantiate

limitations, and failure to properly plead the allegations in the Complaint.

MEMORANDIIM ISO MOTION TO DISMISS COMPLAINT - Case No. 3:13-CV-01944-CAB-BLM

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ALLEGATIONS AGAINST VIVIA.NO IN COMPLAINT