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135 Memo Bierer
135 Memo Bierer
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KLINEDINST PC
501 WEST BROADWAY, SUITE 600
SAN DIEGO, CALIFORNIA 92101
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Plaintiffs,
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v.
SAN DIEGO COUNTY BAR
ASSOCIATION, a California
Corporation, et al.,
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June 6, 2014
2:00 p.m.
4C
Cathy Ann Bencivengo
Barbara L. Major
August 20, 2013
None set
Defendants.
[NO ORAL ARGUMENT UNLESS
REQUESTED BY THE COURT]
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support of her Motion to Dismiss the First Amended Complaint filed by Plaintiffs
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California Coalition for Families and Children (CCFC) and Colbern C. Stuart
Bierer herein joins and incorporates sections I, II, III, IV, and VI of
The following points and authorities are meant to supplement that Omnibus Brief.
I.
INTRODUCTION
definitional phrasings that requires the now 59 defendants and the Court to attempt
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to fish a gold coin from a bucket of mud. U.S. v. Lockheed-Martin Corp, 328
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F.3d 374, 379 (7th Cir. 2003). The FAC not only fails to make cognizable factual
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allegations against Bierer, it fails to even bring forth a plausible theory for
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recovery. Furthermore, most, if not all, of Plaintiffs claims are time-barred by the
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Plaintiffs standing to request the relief he seeks. Accordingly, the Court should
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II.
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ARGUMENT
A.
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Although for the purposes of a motion to dismiss a court must take all of the
factual allegations in the complaint as true, it is not bound to accept as true a legal
conclusion couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that
of action will not do. Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550
Furthermore, all civil complaints must state claims that rise beyond
speculation, to a level of plausibility. Ashcroft, supra, 556 U.S. at 679, 684. The
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and common sense in determining whether well-pled facts permit the court to
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infer more than the mere possibility of misconduct. Id. at 679. Failure to do so
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results in a complaint alleging, but not showing, that the pleader is entitled to relief
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Bierer, the FAC should be dismissed. Indeed, the only arguably factual allegations
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against Bierer in the entire FAC appear to be: (1) her alleged activities involving
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an April 15, 2010 San Diego County Bar Association event; and (2) her
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250, 1007-1008.) In addition to not rising to the level of stating a claim against
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Bierer, these allegations are also clearly barred by the applicable statutes of
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That said, assuming, arguendo, that the allegations against Bierer are
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considered factual in nature, the FAC still fails to rise to the level of plausibility.
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Although difficult to discern, it appears that the crux of the FAC boils down to: 1)
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Colbern Stuart was arrested at a family law seminar hosted by the San Diego
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County Bar Association in April 2010 (Request for Judicial Notice (RJN), Exs. A,
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B, C); and 2) the family law system is a massive conspiracy set out to violate
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Plaintiffs rights. As none of these allegations meet the plausibility standard laid
out by the Supreme Court in Bell Atlantic Corp. and Ashcroft, dismissal is
appropriate.
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Id. 683 (quoting Bell Atlantic Corp., supra, 550 U.S. at 570).
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Here, the FAC lacks any factual content necessary to even approach the line
of plausibility, much less nudge the claims across the line from conceivable to
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plausible. Plaintiffs allege that everyone and anyone involved in the family law
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process is part of a grandiose scheme against them and their rights. Put simply,
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there are no factual allegations in the FAC to support this contention against any of
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the defendants, let alone Bierer. The lack of factual allegations aside, the alleged
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Colbern Stuart, had poor experiences with the family law system, and now hold
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B.
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statutes of limitations. Plaintiffs claims brought under Sections 1983 and 1985
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Angeles, 828 F.2d 556, 558 (9th Cir. 1993); Taylor v. Regents of Univ. of Cal., 993
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F.2d 710, 711-12 (9th Cir. 1993). In California, the statute of limitations for
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personal injury claims is two years. Cal. Code Civ. Proc. 335.1. The statute of
limitations for any claim against an attorney arising from professional services,
other than fraud, is one year. Cal. Code Civ. Proc. 340.6.
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Here, Plaintiffs assert multiple claims against Bierer relating to the Stuart
statute of limitations. As the alleged assault took place on April 15, 2010,
Plaintiffs had to file their Complaint by April 15, 2012. Instead, the original
Complaint in this action was filed on August 20, 2013. All of Plaintiffs causes of
action relating to the Stuart Assault are therefore barred by the statute of
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limitations.
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Any claims that are brought against Bierer for allegedly breaching her
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attorney, any alleged breach falls under the legal malpractice statute of limitations
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of one year. The only directly attributable allegations against Bierer are that she
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was involved somehow in the coordination of the Stuart Assault and that she
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1007-1008.) Given that this representation of Stuarts ex-wife took place in 2007
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and that the alleged assault took place on April 15, 2010, the statute of limitations
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had long run before Plaintiffs original Complaint was filed on August 20, 2013.
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As such, any claims relating to Bierers professional duties are also barred by the
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statute of limitations.
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C.
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As it is difficult to discern what claims are actually being made against Bierer,
reference is made to all claims. That said, it appears the FAC brings Counts 1, 2,
9, 10, 12, 13, 15, and RICO counts 2, 3, 5, 6, 7, 8, 9, 10, and 11 against Bierer.
Since all of these Counts appear to relate to the Stuart Assault, they are all timebarred.
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Further, the FACs claim relating to the Lanham Act (Count 15) should be
dismissed as it fails to state a claim upon which relief can be granted. There are no
factual allegations against Bierer as to what words, terms, names, symbols, and
devices were used by Bierer and how they were false or misleading; rather,
Plaintiffs rely solely on generalized conclusions and the recitation of the elements
of a Lanham Act claim. (FAC 904-914.) There are also no factual allegations
surprising given that Plaintiffs do not compete in the same family law industry as
Bierer. (See FAC, Ex. 24, stating that Stuart practices intellectual property law;
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RJN, Exs. D, E, F showing that Stuart is disbarred not only in California, but also
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appropriate.
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D.
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by Bierer.
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The FAC fails to state a claim for RICO violations against Bierer as it fails
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to bring forth any factual allegations involving Bierer. 18 U.S.C. 1962(c) makes it
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unlawful for a person associated with a RICO enterprise that is engaged in, or the
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a violation of 18 U.S.C. 1962(c). Further, civil RICO claims must show: (1) the
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activity; (3) a nexus between the defendant and either the pattern of racketeering
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activity or the RICO enterprise; and (4) resulting injury to plaintiff, in his
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It is certainly not lost on Bierer that the First Amended Complaint, signed by
Colbern Stuart, contains flat-out lies about Stuart being a licensed attorney in
California, Arizona, and Nevada. (FAC 3, Ex. 24.)
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711 F.Supp. 1016, 1021 (E.D. Cal. 1989). To satisfy the RICO pattern
requirement, a plaintiff must plead two or more predicate acts with specificity,
pattern of racketeering activity. Blake v. Dierdorff, 856 F.2d 1365, 1370 (9th Cir.
1988).
Here, the FAC fails to state any specific facts regarding the alleged predicate
acts of Bierer. In fact, the only references to actions by Bierer are found in a count
that Plaintiffs do not bring against Bierer. (FAC 1007-1008.) As such, all of
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the RICO claims against Bierer fail to state a claim upon which relief can be
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granted.
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Further, Plaintiffs RICO claims fail as they do not make factual allegations
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regarding the effect the alleged racketeering activities have on interstate and
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commerce for the purpose of RICO is as strict as that for the purpose of the
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Sherman Act. Musick v. Burke, 913 F.2d 1390, 1398 (9th Cir. 1990). Under this
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not meet the interstate or foreign commerce requirement of a RICO claim. Id. The
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foreign commerce by the defendants activities. Id. at 1395. In Musick, the Court
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found that the interstate requirement was not met even though defendants
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purchased the majority of their products through interstate commerce. Id. at 1397.
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Here, there are no factual allegations that Bierer or any of her alleged RICO
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state of California. In fact, it appears that all allegations relate to activities that
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took place in the San Diego, California area.5 As such, the FAC also fails to state a
E.
Plaintiffs cannot bring claims for prospective relief as they lack standing.
has suffered or is threatened with a concrete and particularized legal harm; and
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983). As such, [t]o obtain injunctive relief, a reasonable
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Kruse v. Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and
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other laws, undifferentiated from the public at large, is not sufficient to show
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standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106 (1998).
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At the end of their FAC, Plaintiffs assert a claim for prospective relief
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against all defendants, including asking the Court to enjoin defendants from further
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absence of any factual allegations by Plaintiffs that they are likely to suffer future
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injury. Plaintiffs desires to have this countrys laws and Constitution upheld,
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while at least facially noble, are not enough to show standing. Indeed, a plaintiff
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defendants will again subject him to [the harm complained of]. B.C. v. Plumas
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Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The FAC fails to make
any such allegation. As such, Plaintiffs lack standing to bring this action and it
should be dismissed.
III.
CONCLUSION
Based on the foregoing reasons, as well as those expressed in Defendants
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