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

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

17 SAN DIEGO COUNTY BAR ASSOCIATION, et al., Date: December 19, 2013 18 Time: 3:30 p.m. Defendants Courtroom: 4C 19 ORAL ARGUMENT REQUESTED 20 SUBJECT TO COURT APPROVAL 21 22 23 24 25 26 27 28 Complaint Filed: August 20, 2013

Plaintiff Colbern C. Stuart hereby submits his Reply to Defendants, the San

2 Diego County Superior Court, Robert J. Trentacosta, Michael M. Roddy, Lisa Schall, 3 Lorna A. Alksne, Christine K. Goldsmith, Jeannie Lowe, William H. McAdam, Jr., 4 Edlene C. McKenzie, and Joel R. Wohlfeil (collectively, "Defendants") Opposition 5 (Dkt#55) to Plaintiffs Motion to Strike Matter Submitted In Support of Motion To 6 Dismiss (Dkt#19). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. DISCUSSION A. The Motion to Strike is Procedurally Proper In Context of Defendants Posing a Motion to Dismiss as an Evidentiary Motion The Motion to Dismiss Complaint (Dkt#19; MTD) is an evidentiary Motion to Dismiss accompanied by declarations and nine exhibits offered for the truth of matters therein asserted. The Motion itself draws not merely from the existence of the documents or incontrovertible events which may be derived therefrom, but also the substance of their contents, in support of argument which would, in another procedural context, perhaps be appropriate. The Motion to Strike is properly directed at that evidence and advocacy based thereon which, in the present context, is not appropriate. A motion to strike evidence submitted to support a motion to dismiss functioning as an evidentiary motionin this case effectively a motion for summary judgmentis not controversial procedure. Villegas v. City of Gilroy, 90 F. App'x 981, 982 (9th Cir. 2004); Fed.R.Civ.P 56(c)(1).B. A motion to strike matters that are not part of the pleadings may be regarded as an invitation by the movant to consider whether [proffered material] may properly be relied upon. Monroe v. Board of Educ., 65 F.R.D. 641, 645 (D.Conn.1975) ([A] motion to strike has sometimes been used to call to courts' attention questions about the admissibility of proffered material in [ruling on motions].) (citing cases). United States v. Crisp, 190 F.R.D. 546, 550-51 (E.D. Cal. 1999) (emphasis added). -1PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Cal. Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 14-C. The policy behind a motion 16 to strike favors allowing it as against this RJN and evidentiary MTD. Since the 17 function of a 12(f) motion to strike is to avoid the expenditure of time and money that 18 must arise from litigating spurious issues by dispensing with those issues prior to 19 trial, striking a motion to reconsider fails to comply with the policies underlying 20 F.R.Civ.P. 12(f). See Anchor Hocking Corp. v. Jacksonville Elec. Authority, 419 21 F.Supp. 992, 1000 (M.D.Fla.1976); A. J. Moore, Moore's Federal Practice 12.21 22 (1982). 23 Defendants, perhaps permissibly, submit evidence with the Motion to Dismiss, Declarations and other evidence of the moving party that would not be admissible are subject to a timely objection and may be stricken. FRCP 56(c)(2); see FDIC v. New Hampshire Ins. Co. (9th Cir. 1991) 953 F2d 478, 484; Sellers v. M.C. Floor Crafters, Inc. (2nd Cir. 1988) 842 F2d 639, 643. . . . Unless local rules provide otherwise, objections to the moving party's evidence can be made either at the hearing or beforehand. The opposing party may file written objections or a motion to strike the evidence as part of its opposition papers. Pfingston v. Ronan Engineering Co. (9th Cir. 2002) 284 F3d 999, 1003. However, a separate motion to strike is unnecessary. The objection places the burden on the moving party to show that the material is admissible as presented (or will be admissible in the form that is anticipated at trial). [See Adv. Comm. Note to FRCP 56(c)(2)]

24 subverting it to a motion for summary judgment. Rauch v. Day and Night Mfg. 25 Corp., 576 F.2d 697 (6th Cir. 1978) (Rule 12(b)(6) permits the court to consider a 26 motion to dismiss accompanied by affidavits as a motion for summary judgment. If 27 the motion is treated as one for summary judgment, all parties shall be permitted to 28 present all material pertinent to the motion.); Jablon v. Dean Witter & Co., 614 F.2d -2PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 677, 682 (9th Cir. 1980). Yet their attempt to subvert a request for judicial Notice to 2 a vehicle for introduction of controversial evidence without proper foundation and 3 cross-examination is not permissible. Fed.R.Civ.P Rule 56(c)(1)B. A court may take 4 judicial notice only of facts that are capable of accurate and ready determination by 5 resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 6 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Though 7 Plaintiff has never contested certain facts asserted by Defendants related to the RJN, 8 none of Defendants exhibits satisfy the judicial notice standard. 9 Defendants simultaneously attempt to shortcut the Federal Rules of Civil

10 Procedure and the Federal Rules of Evidence by offering highly controversial 11 evidence in a Motion to Dismiss, then cry foul when proper procedure is invoked to 12 object to such irregular procedure. Given that Plaintiffs evidentiary objections were 13 necessitated by Defendants unorthodox resort to a Request for Judicial Notice loaded 14 with defective evidence in support of Motion to Dismiss larded with overreaching 15 advocacy build thereon, their cries may be regarded as specious. 16 Should the Court desire to accept Defendants Motion to Dismiss as a motion

17 for summary judgment, Plaintiff requests to take discovery regarding all matters 18 asserted pursuant to Fed.R.Civ.P 56(d). The concurrently-filed Stuart Declaration is 19 offered in support. Stuart Decl. I. 20 21 22 B. Defendants Have Withdrawn Frivolous Arguments in their Motion to Dismiss Whether properly stated as a motion to strike or separate evidentiary objections

23 under Federal Rules of Evidence, the Motion to Strike has accomplished much of its 24 useful purpose. Defendants have withdrawn or substantially modified assertions 25 based on the evidence submitted in the RJN, distilling certain positions toward 26 justiciability. It will perhaps assist the Court to offer Plaintiffs understanding of the 27 remaining dispute. 28 1. Lexevias Corporate Status: Defendants appear to have withdrawn their -3PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 position that Lexevias corporate status is relevant to standing (Motion to Strike 2 III.B.5), to an assertion that Lexevias suspended statuswhich has never been 3 disputedis relevant only to capacity. Lexevia is in process of curing its suspended 4 status, has filed the required Statement of Information and Petition for Revival with 5 the Secretary of State , and anticipates revival within 90 days. Declaration of Colbern 6 Stuart in support hereof, II. Because Defendants do not waive the right to assert 7 incapacity at a later stage (see discussion infra), the Court may deny the MTD 8 conditioned on reasonable opportunity to revive. Doing so would cause no prejudice 9 to Defendants, and permit an orderly revival and return to this Court without need for 10 re-filing and subsequent consolidation. Should Defendants become impatient, they 11 are not prejudiced to petition the Court for dismissal for lack of capacity at any time. 12 See Lewis v. Russell, 838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012). 13 2. Corporate Plaintiffs Representation: Defendants appear to have withdrawn

14 to a position that Lexevia and CCFCs counselMr. Webbhas not yet been 15 admitted pro hac vice. This assertion is not contested. Yet Defendants cite no 16 authority that such a transient condition is properly the subject of a motion to dismiss. 17 Mr. Webb and CCFC recognize this issue and continue to pursue Mr. Webbs 18 admission by pro hac vice. Stuart Decl. III. 19 20 C. Despite Modification of their Positions, Defendants Persist to Pursue Relief Unavailable in the Present Rule 12(b)(6) Motion to Dismiss

21 1. The Defective Evidence in Support of a Controversial Affirmative Defense of 22 23 Qualified Immunity Remains Inadmissible Defying the fair warning offered in the Motion to Strike that RJN Exhibits A

24 (Garson Declaration) and B (Superior Court Minutes form) are far from 25 incontrovertible and indeed infected with debilitating criminal taint, Defendants 26 continue to insist that these exhibits establish a qualified immunity defense as a 27 matter of law. Notwithstanding Defendants ambition, this is simply not achievable. 28 Should Defendants attempt to assert this defense by appropriate means and offer the -4PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 RJN Exhibits, their witnesses, including Ms. Garson and all witnesses to the 2 STUART ASSAULT, must be offered for cross-examination. Fed.R.Civ.P. 56(d). As 3 Plaintiff has identified perjury and fraud relating to the RJN Exhibits, these required 4 examinations will be substantive. Stuart Decl. I. Plaintiff hereby makes such a 5 request. 6 Plainitffs objections to RJN Exhibits A and B stand. Defendants Opposition

7 merely begs its desired resultadmitting a foundationless, perjurous probable cause 8 declaration larded with hearsay to support a highly controversial affirmative defense 9 as a matter of law. RJN Exhibits A and B are foundationless, hearsay, tainted 10 documents with no apparent relationship to one another or any allegation in the 11 Complaint, and neither of which contradict the relevant allegation in the Complaint to 12 which they are apparently aimedPrior to the STUART ASSAULT, no Defendant 13 possessed probable cause or a warrant for Stuarts Arrest. Compl. 145. Defendants 14 only claim that the exhibits relat[e] directly to the so-called Stuart Arrest [sic] at 15 the family law seminar on April 15, 2010. Oppo. 5:14-15. At most, Defendants 16 have located two faulty passages of a story that will not be told. Even if the evidence 17 Defendants offered was fundamentally sound, properly submitted, and appropriate for 18 a Motion to Dismiss, it will cannot refute the Complaint allegation Defendants aim it 19 atNo Defendant possessed probable cause or a warrant for the STUART 20 ASSAULT. 21 The case has not unfolded sufficiently to allow the Court a complete view of

22 the depth and significance of this issue; Defendants persistence at this stage presages 23 the issue to be a vigorous dispute. Out of prudential considerations alone, refraining 24 from disposition on a motion to dismiss based upon defective evidence in a premature 25 record to a contested issue would seem wise. 26 2. Ms. Nesthus Testimony Regarding Her Conversations with Mr. Webb are 27 28 Irrelevant to Any Remaining Dispute: The Nesthus Declaration remains plainly evidentiary; defective multiple-level -5PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 hearsay on what, since Defendants withdrawals of certain defenses, have become 2 insubstantial issues to the MTD. It is no help to claim that the Nesthus Declaration 3 Provides Additional Support Regarding CCFC and Lexevias Inability To Proceed 4 In Propria Persona. Lexevia does not appear to proceed in propria persona, but is 5 represented by counsel who is in process of obtaining permission to appear pro hac 6 vice. Stuart Decl. II. The Nesthus evidence may be ignored. 7 Should Defendants insist to pursue an issue that appears to be of little

8 significance to their case in chief, Plaintiff hereby requests leave to cross-examine 9 Ms. Nesthus and other relevant witnesses. See Dkt#4; Stuart Decl. I; Exs. A, B; 10 Fed.R.Civ.P. 56(d). 11 3. Stuarts State Bar Status Is Not Controverted, Yet Defendants Continue to 12 13 14 Improperly Rely on Incompetent Evidence to Assert Controversial, Irrelevant, Scandalous Arguments Defendants proffer printouts of state bar materials for one non-controverted

15 issueStuarts state bar statusas well as controversial arguments and conclusions. 16 MTD 8:1, fn1. These contentions are controverted, but more importantly are entirely 17 irrelevant to the legal issues in the Motion to Dismiss (or likely any forseeable issue). 18 Their inclusion in the MTD in any way other than to support the (conceded but 19 irrelevant) claim that Stuart may not represent the corporate Plaintiffs is improper, 20 scandalous, and objectionable under any circumstancescertainly so via a request 21 for judicial notice. 22 4. Defendants Persist to Seek Dismissal Via a Rule 12(b)6) Motion to Dismiss For a 23 24 Curable Capacity Defense Defendants continue to insist on immediate dismissal for capacity issues at the

25 Rule 12(b)(6) stage despite ongoing cure of that curable condition. Stuart Decl. III. 26 Objections to capacity are an affirmative defense, and not waivable even if not 27 asserted. In re Ski Train Fire In Kaprun, Austria on Nov. 11, 2000, 257 F. Supp. 2d 28 717 (S.D.N.Y. 2003); 1295 Waiver of Objections to Capacity, 5A Fed. Prac. & -6PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

1 Proc. Civ. 1295 (3d ed.). Affirmative defenses may not ordinarily be raised by a 2 Motion to Dismiss. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). As a 3 general matter, a district court may not consider any material outside of the pleadings 4 when ruling on a Rule 12(b)(6) motion. Dunn v. Castro, 621 F.3d 1196, 1205 n.6 (9th 5 Cir. 2010); Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 6 (9th Cir. 2007). As above and in the Stuart Decl. III, Plaintiff suggests permitting a 7 reasonable permission to cure capacity would preserve Court and party resources, 8 prejudicing none. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7PLTFS REPLY ISO MTN TO STIRKE MATTER IN MTN TO DISMISS 13-CV-1944 CAB BLM

II.

CONCLUSION

Plaintiffs evidentiary objections stand. While this process has been useful perhaps for Defendants to recognize and abandon frivolous assertions in the MTD, it has been entirely unnecessary. Plaintiffs October 28, 2013 Meet and Confer offered the resolution Defendants presently will likely obtain. Plaintiff regrettably submits that his prediction of unnecessary pleading effort and expense by parties, Court, and counsel has come to pass. See, October 28, 2013 Meet and Confer correspondence to M. Green, Ex. A to Declaration to Colbern C. Stuart in Support of Opposition to Motion to Dismiss (Dkt#19-2); Plaintiffs Memorandum in Support of Motion for Sanctions (Dkt#39-1, pp. 24-25). Plaintiff respectfully requests the Court grant the Motion to Strike as asserted. If the Court is inclined to admit such evidence over Plaintiffs objections, Plaintiff requests leave to conduct discovery on such evidence pursuant to Fed.R.Civ.P 56(d); Stuart Decl. I. Respectfully Submitted:

DATED: December 12, 2013

By: /s/

Colbern C. Stuart, III

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

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this 12th day of December, 2013. By: /s/

Colbern C. Stuart, III

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

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