119 appellants' joint consolidated reply brief

Case No. 14-56140

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC, a Delaware public benefit corporation, COLBERN C. STUART, III

Plaintiffs-Appellants

v.

SAN DIEGO COUNTY BAR ASSOCIATION, et al.

Defendants-Appellees

Appeal From The United States District Court For The Southern District of California

Case No. 03-cv-1944 CAB (JLB) The Honorable Cathy Ann Bencivengo

APPELLANTS’ JOINT CONSOLIDATED REPLY BRIEF

Colbern C. Stuart III, J.D.

President, California Coalition for Families and Children, PBC

4891 Pacific Highway Ste. 102 San Diego, CA 92110

Telephone: 858-504-0171 [email protected]

Plaintiff-Appellant In Pro Se

Dean Browning Webb, Esq. Law Offices of Dean Browning Webb

515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 [email protected]

Counsel for Plaintiff-Appellant California Coalition for Families and Children, PBC

Case: 14-56140, 02/04/2015, ID: 9409771, DktEntry: 119, of 79

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................. 1

A. Organization of Reply ........................................................................ 2

B. Appellees’ “Other Grounds” and Type-Volume of Reply ................ 3

II. COUNTER-STATEMENT OF FACTS ............................................ 5

A. The District Court Dismissed Under Rule 8(a)(2), Not 41(b) ........... 5

B. Judicial Appellees Distort and Contradict the FAC (DktEntry 51-1

and Joinders) ...................................................................................................... 5

1. Appellees Contradict California Coalition’s Prospective Relief

Claims 7

2. Stuart Has Never Attempted to Appear as Counsel for California

Coalition 7

C. Federal (Chubb) Contradicts FAC Allegation of Conspiracy to

Illegally Prosecute Stuart for “Criminal Trespass” and “Harassing Judges”

(DktEntry 65) ..................................................................................................... 8

D. Doyne Contradicts the FAC Alleging He Was a Private Mediator,

Active Participant in the Stuart Assault, and Is Not a Judge (DktEntry 64) ..... 8

E. Lawyer Defendants Contradict The FAC (DktEntry 64) .................. 9

3. Lawyer Defendants Participated In the Planning and Execution of

the Stuart Assault, Were State Actors, and RICO Persons ............................ 9

F. Bierer Contradicts the FAC Alleging Her Participation in the Stuart

Assault, Kidnapping, Fraud, and Extortion (DktEntry 60) ................................ 9

G. Fritz Contradicts the FAC (DktEntry 45) ........................................ 10

1. California Coalition, PBC ............................................................ 10

2. Stuart v. Stuart and People v. Stuart ............................................ 11

3. Stuart’s Bar Status ....................................................................... 11


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III. REPLY TO STANDARD OF REVIEW ......................................... 13

A. Review of Rule 8 is De Novo, Not Abuse of Discretion ................. 13

B. Fritz Standards of Review are Inaccurate (DktEntry45) ................. 13

C. “Other Grounds” are Reviewed De Novo ....................................... 14

IV. REPLY TO ANSWERING ARGUMENTS ................................... 15

A. The District Court’s Dismissal with Prejudice Was Error .............. 15

1. A District Court Cannot Dismiss Sua Sponte with Prejudice For

Curable Rule 8 Issues ................................................................................... 15

2. The District Court Bypassed Rule 41(b) Because Appellants’

Successfully Objected to the Evidentiary Lucas Declaration ...................... 16

3. The District Court Referenced, But Did Not Analyze Under Pre-

Twombly Authority ...................................................................................... 16

4. McHenry, Nevijel, and Schmitd Are Inapposite .......................... 17

5. Rule 41(b) Sanction Would Be Error .......................................... 20

B. The Superior Court’s Initial Rule 12(b)(6) Motion Asserted

Clarification Issues Not Enabling Dismissal ................................................... 28

C. Defendants Did Not Prove Factual Foundations for Judicial or

Eleventh Amendment Immunity ...................................................................... 28

1. The Commission Has Not Proven Statehood .............................. 29

2. The District Court Extended Judicial Immunity under Ashelman

v. Pope Contrary to Controlling Supreme Court Authority ......................... 35

3. Family Court Judges Cannot Identify an Accused Function that is

Immune ………………………………………………………………….43

D. Like Ashelman, Pierson Was an Illegal Incursion into

Congressional Authority .................................................................................. 45

1. United States Courts Exercise Limited Jurisdiction .................... 46

2. Pierson is Not On Point ............................................................... 47


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3. Congress Intended to Abrogate Judicial Immunity ..................... 47

4. Conclusion: “If aura there be, it is hardly protected by

exonerating from liability such lawless conduct as took place here” .......... 57

E. The District Court’s Hostility, Threats, Insults, and Expressed Bias

Was a Deprivation of Impartial Tribunal ......................................................... 57

F. California Coalition Was Entitled to File Motion for Witness

Harassment Restraining Order ......................................................................... 60

1. General Order 550 Does Not Legalize Threats to Imprison ........ 61

2. Appellants Have Right to Allege Venue ..................................... 62

3. California’s Litigation Privilege is Inapplicable ......................... 62

4. California Government Code 6254.21 is Unconstitutional ......... 62

G. Superior Court’s Two Failed Sanctions Motions Entitles California

Coalition to Counter-Sanctions ........................................................................ 65

H. Incorporation/Preservation of Motion for Preliminary Injunction .. 67

V. MOTION TO ANSWER “OTHER GROUNDS” BRIEFING AS

CROSS APPEAL ..................................................................................................... 68

VI. CONCLUSION ................................................................................ 69


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TABLE OF AUTHORITIES

CASES

Abagnin v. AMVAC Chemical Corp., 545 F.3d 733 (9th Cir. 2008) ....................... 14

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ................................................. 36

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, , 432-37 (1993) ................. 40, 50

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ....................................................... 52

Arnold v. Bostick, 339 F.2d 879 (9th Cir. 1964) ...................................................... 48

Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004) ......................... 70

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................... 27

Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) ................................. 39 et passim

Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) ...................................................... 40

Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) .................... 35

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................... 17

Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) ....................................................... 19

Burns v. Reed, 500 U.S. 478 (1991) ........................................................................ 49

Butz v. Economou, 438 U.S. 478 (1978) .................................................................. 43

Cary v. Curtis, 44 U.S. 236 (1845) .......................................................................... 51

Connick v. Thompson, 131 S. Ct. 1350 (2011) ........................................................ 44

Craig v. Harney, 331 U.S. 367 (1947) ..................................................................... 43

Dahl v. City of Huntington Beach, 84 F.3d 363 (9th Cir. 1996) ............................. 29

Dennis v. Sparks, 449 U.S. 24 (1980) ...................................................................... 41

Detabali v. St. Luke’s Hosp., 482 F.3d 1199 (9th Cir. 2007) .................................. 52

Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) .................................... 48

Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ....................................... 70

Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987) ............................................. 72


2

Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) ......................... 20

Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991) ......................................................... 52

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ............................................ 44

Gomez v. Toledo, 446 U.S. 635 (1980) .................................................................... 38

Gray v. Evercore Restructuring L.L.C., 544 F3d 320 (1st Cir. 2008) ..................... 38

Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir.

1987) .................................................................................................................... 32

Gregoire v. Biddle, 177 F. 2d 579 (2nd Cir. 1949) ................................................ 43

Griffin v. Breckenridge, 403 U.S. 88 (1971) ........................................................... 59

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............................................................. 42

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) .................................................. 51

Hearns v. San Bernardino Police Dep't, 530 F.3d 1124 (9th Cir. 2008) ................ 13

Hoffman v. Harris, 511 U.S. 1060 (1994) ............................................................... 50

Hurles v. Ryan, 706 F.3d 1021 (9th Cir.2013) ........................................................ 64

In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716 (9th Cir.

2013) .................................................................................................................... 14

Indus. Bldg. Materials, Inc. v. Interchemical Corp., 278 F. Supp. 938 (C.D. Cal.

1967) .................................................................................................................... 30

ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289 (9th Cir. 1993) ............. 32

Kadamovas v. Stevens, 706 F.3d 843 (7th Cir. 2013) .............................................. 19

Kalina v. Fletcher, 522 U.S. 118 (1997) .......................................................... 40, 49

Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621 (9th Cir. 1988) ............. 21

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) ........................ 70

Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993) ..................... 20

Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014)...... 52

Liteky v. United States, 510 U.S. 540 (1994) ........................................................... 65

Lockerty v. Phillips, 319 U.S. 182 (1943) ............................................................... 51


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Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980) ............................................ 41

Malley v. Briggs, 475 U.S. 335 (1986) .................................................................... 53

McGowan v. State of Md., 366 U.S. 420 (1961) ...................................................... 48

McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ................................................... 18

Meyers v. Contra Costa County Dept. of Soc. Servs., 812 F.2d 1154 (9th Cir. 1986)

.............................................................................................................................. 48

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) ................................................ 5, 39

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) ............... 60

Monroe v. Pape, 365 U.S. 167 (1961) ..................................................................... 53

Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996) ................................................... 46

Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) ......................................... 27

Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) .............................. 20

Owen v. City of Independence, MO, 445 U.S. 622 (1980) ...................................... 53

Pearson v. Callahan, 555 U.S. 223 (2009) .............................................................. 42

Pennekamp v. State of Fla., 328 U.S. 331 (1946).................................................... 43

Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) .................................. 53

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ...................................................... 7

Pierson v. Ray, 386 U.S. 547 (1967) ....................................................................... 54

Pulliam v. Allen, 466 U.S. 522 (1984) ..................................................................... 47

Randall v. Brigham, 74 U.S. 523 (1868) ................................................................. 61

Rehberg v. Paulk,, 132 S.Ct. 1497 (2012) ............................................................... 40

Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995) ............................................. 13

Rich v. Taser Int'l, Inc., No. 2:09-CV-02450-ECR (D. Nev. Aug. 2, 2012) ........... 72

Scheuer v. Rhodes, 416 U.S. 232 (1974) ................................................................. 38

Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. 1979) ............................................. 43

Sparks v. Duval Cnty. Ranch Co., 588 F.2d 124 (5th Cir.) ..................................... 41

Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002) ................................................ 17


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Tenney v. Brandhove, 341 U.S. 367 (1951) ............................................................. 55

Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109 (9th Cir. 2014) .................. 52

Tower v. Glover, 467 U.S. 914 (1984) ..................................................................... 38

Turner v. Bank of North America, 4 U.S. 8 (1799) ................................................. 51

United States v. Alvarez, 132 S. Ct. 2537 (2012) .................................................... 70

United States v. Morrison, 529 U.S. 598 (2000) ..................................................... 56

United States v. National Medical Enters., Inc., 792 F.2d 906 (9th Cir.1986) ....... 29

United States v. Roach, 745 F.2d 1252 (9th Cir. 1984) ........................................... 52

Withrow v. Larkin, 421 U.S. 35 (1975) ................................................................... 64

STATUTES

18 U.S.C. § 1964 ........................................................................................................ 8

California Government Code § 6254.21 ..................................................... 64, 66, 71

RULES

Fed.R. App.P. 28.1 .............................................................................................. 5, 70

Fed.R. Civ.P. 56(h) .................................................................................................. 68

Fed.R. Civ.P. 8 .......................................................................................... 7 et passim

CONSTITUTIONAL PROVISIONS

United States Constitution, Article I ................................................................ 45, 49

United States Constitution, Article III ........................................................ 24, 45, 47

United States Constitution, Amend. I ............................................... 7, 50, 62, 64, 65

United States Constitution, Amend. IV ..................................................................... 4

United States Constitution, Amend. V ................................................................ 7, 62

United States Constitution, Amend. XI .......................................... 28, 32, 33, 50, 69

United States Constitution, Amend. XIV ......................................... 7, 32, 33, 50, 69


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California Constitution, Article I § 2(a) ............................................................ 67, 71

California Constitution, Article I § 26 .............................................................. 67, 71

LAW REVIEW ARTICLES

J. Feinman, R. Cohen, Suing Judges: History and Theory, 31 S.C.L. REV. 201

(1979) .................................................................................................. 41 et passim

Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969)

............................................................................................................. 41 et passim


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I. INTRODUCTION

This Joint Consolidated Reply responds to the Answering Briefs of all

Appellees including:

DktEntry 45: Jeffrey Fritz and Basie & Fritz (Fritz. Brf.);

DktEntry 51: Superior Court of San Diego County, Robert J. Trentacosta,

Michael Roddy, Judicial Council, AOC, Tani CantiSakauye, Lorna Alksne,

Christine K. Goldsmith, Jeannie Lowe, William Mcadam, Edlene McKenzie,

Michael S. Groch, Kristine P. Nesthus, Steven Jahr, Lisa Schall and Joel R.

Wohlfeil (Jud. Brf.);

DktEntry 52: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon

Blanchet, Law Offices of Lori Clark Viviano, National Family Justice Center

Alliance and Lori Clark Vivano (Alliance Joinder);

DktEntry 53-1: County of San Diego and William D. Gore (County Brf.);

DktEntry 55: American College of Forensic Examiners Institute and Robert

O'Block (ACFEI Brf.);

DktEntry 60: Bierer and Associates and Marilyn Bierer (Bierer Brf.);

DktEntry 62: Brad Batson, Commission on Judicial Performance and Lawrence

J. Simi (Comm. Brf.);

DktEntry 64: Stephen Doyne and Dr. Stephen Doyne, Inc. (Doyne Brf.);

DktEntry 65: Chubb Group of Insurance Companies (Federal Brf.);

DktEntry 67: San Diego County Bar Association Correspondence: San Diego

County Bar Association (Joinder) (SDCBA Brf.);

DktEntry 68: Allen Slattery, Inc., Baldwi n and Baldwin, Carole Baldwin, Laury

Baldwin, Hargraeves & Taylor, PC, William Hargraeves, Meridith Levin, Janis

Kay Stocks and Stocks & Colburn (Lawyer. Brf);

DktEntry 69: Terry Chucas and Susan Griffin (Chucas Brf.);

DktEntry 71: Larry Corrigan, Love and Alvarez Psychology, Inc. and Lori Love

(Love Brf.);


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DktEntry 75: Off Duty Officers (ODO Brf.)

DktEntry 95: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon

Blanchet, National Family Justice Center Alliance (Alliance Brf.);

DktEntry 111: City of San Diego, Jan Goldsmith, and Emily Garson (City Brf.);

DktEntry 114: Robert A. Simon (Simon Brf.)

A. Organization of Reply

To enable a single consolidated joint reply, this brief replies to the Answering

Briefs in the following organization:

Section II replies to statement of facts in answering briefs, setting forth mis-

statements contrary to the presumed-true FAC allegations, or extraneous to the

record below;

Section III responds to standard of review controversy;

Section IV responds to Appellees’ arguments directed at the issues presented

in Appellants’ Joint Opening Brief (“AOB”; DktEntry 43) following the

organization of the Joint Opening Brief (see AOB CONTENTS, DktEntry 43, pp.

2-51). Where multiple appellees join or argue the same issue, this Reply combines

the multiple appellee arguments within the same sub-section and responds.

Section V responds to the many new issues raised by Appellees which were

not grounds for appeal analyzed in the AOB. Appellants have filed an

accompanying motion to dismiss the “other grounds” arguments as untimely cross-

appeals or, in the alternative, to permit further proceeding according to cross-appeal

procedure provided in Federal Rule of Appellate Procedure 28. See Motion to

1 All “p.” page references follow ECF-stamped consecutive pagination (blue

typeset) if available. References to the district court docket (Doc. No.) similarly follow the district court’s ECF-stamped consecutive pagination, if available. Excerpts of record are referenced by party-assigned pagination.


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Dismiss Untimely Cross Appeals; Motion to Expand Reply Brief Type-Volume

Limits; Alternative Motion to Proceed As Cross-Appeal (“Motion To Dismiss”)

filed herewith.

B. Appellees’ “Other Grounds” and Type-Volume of Reply

The fourteen Answering Briefs combined total about 50,000 words—less than

the 196,000 (combined) Appellees would be permitted in fourteen joint briefs under

FRAP 32(a)(7)(B)(i).

To comply with FRAP 32(a)(7)(B)(ii) (“A reply brief is acceptable if it

contains no more than half of the type volume specified in 32(a)(7)(B)(i)”) and to

permit a single joint reply California Coalition limits type volume of this

consolidated reply to one-half the 50,000 total words in answering briefs, for a total

of 20,000 words, consistent with the type-volume limit proportions of FRAP

32(a)(7)(B)(i)-(iii). See Motion To Dismiss filed herewith.

The length and complexity of answering briefs results from appellees’

decision to assert “other grounds” which were not adjudicated or relied on by the

district court, but which appellees claim support the final judgment. California

Coalition contests this assertion and herby and by accompanying motion moves to

dismiss answering briefs asserting “other grounds” as untimely cross-appeals.

Alternatively California Coalition hereby and by accompanying motion

moves to treat Appellees’ answering briefs as cross-appeals under FRAP 28.1(c)(2),

and adopt type-volume and cross-appeal procedures consistent with that Rule,

permitting this reply to serve as part of a combined joint response and reply under

FRAP 28.1(c)(1) and (3). In the event the court permits Appellees’ cross-appeal,

California Coalition also requests to file a separate “response” addressing the new

“other grounds” issues raised in appellees’ answering briefs, and set a combined

type-volume limit for its principal, reply, and response briefs pursuant to FRAP 28.1.

See Motion to Dismiss filed herewith.


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II. COUNTER-STATEMENT OF FACTS

Appellees devote substantial effort contesting the presumed-true fact

allegations of the FAC. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)

(en banc). Statements of fact contrary to, or outside of, the FAC are inappropriate

and may be disregarded or stricken. Id. See accompanying Motion to Strike

Improper Excerpts. This counter statement section spotlights inappropriate fact

controversy.

A. The District Court Dismissed Under Rule 8(a)(2), Not 41(b)

Appellees assert inconsistent reasons for the district court’s dismissal—some

asserting merely Rule 8(a)(2), others asserting Rule 41(b). See, e.g., Fritz Brf. p. 7;

Jud. Brf. p. 37-40. The July 9 Order dismissing with prejudice references only Rule

8(a)(2). See AOB p. 34.

Doyne and Federal accurately recognize that the district court did not rely on

Rule 41(b), but Rule 8(a)(2) only (“This action is presented on appeal after the

district court dismissed Appellants' FAC with prejudice for failure to comply with

FRCP, Rule 8(a)(2).”). Doyne Brf. p. 8, 13; Fed. Brf. 12-13. Fritz identifies a

standard of review for only Rules 8 and 12. Lawyer Appellees assert the district

court dismissed pursuant to Rule 8. Law. Brf. p. 14, 15. ABC&K, Blanchet, Viviano,

Family Justice Center assert the same. ABC&K Brf. (DktEntry 95-1) 7, 14.

B. Judicial Appellees Distort and Contradict the FAC (DktEntry 51-1

and Joinders)

Judicial Appellees and joiners attempt to rewrite the FAC to erase California

Coalition to convert the case into a convenient “disgruntled litigant” claim.2 Jud.

2 The tactic coincides with Appellees’ improper re-assertion of Rooker-

Feldman and Heck v. Humphries defenses which re-attempt “disgruntled litigant” theories which Appellees lost below, and were not cross-appealed. The issues, and


6

Brf. p. 13. Judicial Appellees conspicuously eliminate lead plaintiff California

Coalition and its claims from sections I, II, and III of its Answering Brief,

referencing only Stuart. The tactic omits California Coalition and its members’

presence and injury at the April 2010 SDCBA Seminar supporting “chilling” and

Unfair Competition Claims of Count 1 and 2, ignores California Coalition’s

allegation of its business development activity in supporting UCL and Lanham Act

claims, ignores the history of California Coalition’s organized petitioning of United

States representatives and institutions in support of Section 1985(1), (2), and (3)

claims and related obstruction of justice RICO claims, and omits allegations of

Superior Court’s in-house counsel Kristine Nesthus’ illegal threats and obstruction

of California Coalition members after this action was filed as alleged in the “Nesthus

Obstruction” civil right and RICO claims. The gross distortion is an unfaithful

litigation tactic.

Judicial Appellees and Bierer argue this action is a “disgruntled litigant”

lawsuit to leverage their Rooker-Feldman “other grounds” cross-appeals. Bierer Brf.

7-9; Jud. Brf. 13. This action does not seek modification of any issue that was or

could be resolved in a divorce court. The FAC alleges federal law claims asserting

RICO enterprise liability for injury to “business or property” (18 U.S.C. § 1964(c))

of California Coalition and Stuart (Racketeering Counts 1-11), declaratory and

injunctive relief for California Coalition’s association members (Prospective Relief

Counts 1 and 2), and remedy for injury and deprivation of civil rights to California

Coalition and Stuart based on events occurring primarily after Stuart’s dissolution

action was terminated.

facts related to them, are not properly presented in this appeal. See Motion to Dismiss.


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1. Appellees Contradict California Coalition’s Prospective Relief Claims

Prospective Relief Counts 1 and 2 seek declarations and injunctions to

establish, vindicate, and enforce fundamental establish rights—defined in the

complaint as “Family Federal Rights.” ER 350, 353, 123-24. Several Appellees

mock the concept of “Family Federal Rights.” E.g., Jud. Brf. p. 13.

“Family Federal Rights” are unique to persons having familial relationships.

They are clearly-established and well recognized in United States courts, which are

advanced from Family Courts within the State of California. The rights are

articulated though generations of Supreme Court precedent going back at least as far

as Pierce v. Society of Sisters, 268 U.S. 510 (1925), are derived from the first, fourth,

fifth, and fourteenth amendments to the United States Constitution, and guarantee a

unique genus of liberties of association, free speech, and privacy, and entitled to

heightened protections of due process and equal protection.

California Coalition has spotlighted this well-established bundle of

fundamental rights of association, privacy, expression and conscience to distinguish

the unique context in which “traditional” constitutional rights are treated by United

States courts, and by this action seeks prospective relief to protect their exercise.

2. Stuart Has Never Attempted to Appear as Counsel for California Coalition

Appellees reference the district court’s initial misunderstanding that Stuart

was attempting to represent California Coalition. Jud. Brf. p. 25. Stuart has only

appeared in pro se, and has never attempted to appear for California Coalition.

California Coalition’s counsel Mr. Dean Webb was retained prior to filing the initial

Complaint and at all times represented California Coalition. See caption, Doc. No.

1; 94 (pro hac vice appointment); ER 18, 21, 23-24, 35. The Complaint and all

pleadings prior to Mr. Webb’s admission accurately note Mr. Webb was arranging

to appear pro hac vice.


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C. Federal (Chubb) Contradicts FAC Allegation of Conspiracy to

Illegally Prosecute Stuart for “Criminal Trespass” and “Harassing

Judges” (DktEntry 65)

Contradicting the presumed-true allegations of the FAC, Federal argues its

“only involvement with” this case “was to investigate and, following that

investigation, to deny his claim against SDCBA based on events that occurred at

SDCBA’s April 15, 2010, seminar.” Fed. Brf. p. 8, 11, 17, 20. The FAC alleges

Stuart’s telephone conversation with Federal’s adjuster, who revealed intent to

falsely prosecute Stuart for “criminal trespass.” ER 179-181. The FAC alleges

conspiracy between Federal, the county bar, and City Attorney’s Office to thwart

and retaliate for Stuart’s $10 million claim and demand. ER 184-187.

D. Doyne Contradicts the FAC Alleging He Was a Private Mediator,

Active Participant in the Stuart Assault, and Is Not a Judge (DktEntry

64)

Doyne alleges he was “appointed”, controverting the FAC alleging he was

hired as a private mediator on referral from Wohlfeil. Doyne Brf. 9-10; FAC Count

11 (ER 265). Doyne incorrectly asserts “No facts are alleged that Doyne had

anything to do with the decision to arrest Stuart, and the subsequent criminal and

administrative proceedings against Stuart.” Doyne Brf. 11. The FAC asserts Doyne

as an active co-conspirator in the Stuart Assault. FAC claims 1.6, 1.10 (ER 155,

163).

Doyne improperly joins Judicial Appellees’ assertion of judicial immunity in

their Answering Brief, claiming “Each and every argument set forth in the

aforementioned Answer should apply equally to Doyne as if asserted separately and

on his behalf.” Doyne Brf. (Dkt Entry 64-1) p. 14. Doyne is not a judge—his

function in this case was commercial—not judicial—contracted private mediation

services during which he committed fraud, extortion, abuse of process, and


9

subsequent efforts to thwart and retaliate for Appellants’ efforts to investigate his

participation in the criminal enterprises, report his activities to state and federal law

enforcement, and obtain his arrest and prosecution. FAC claims 1.6, 1.10 (ER 155,

163). Doyne at no time functioned as a Superior Court Judge, and his attempt to join

immunity argument (“each and every argument”) in the Judicial Appellees’ brief is

inappropriate.

E. Lawyer Defendants Contradict The FAC (DktEntry 64)

3. Lawyer Defendants Participated In the Planning and Execution of the Stuart Assault, Were State Actors, and RICO Persons

Lawyer Appellees incorrectly assert FAC alleges only “Lawyer Appellees . .

. were panelists at a San Diego County Bar Association . . . and nothing else.” Law.

Brf. p. 11-12, 13. The FAC alleges lawyer defendants were Stuart Assault

Coordinators participating in the Stuart Assault through pre-seminar planning

including plans to assault Stuart (Count 1, claim 1.12 (ER 168); Count 2), and

participated in planning of the San Diego “Family Law Community” (the San Diego

Domestic Dispute Industry Criminal Enterprise, or SD-DDICE) (ER 240-243, 297-

298) schemes to defraud and extort San Diego Domestic Dispute Industry Litigants.

F. Bierer Contradicts the FAC Alleging Her Participation in the Stuart

Assault, Kidnapping, Fraud, and Extortion (DktEntry 60)

Bierer incorrectly asserts the FAC makes only a “conclusory allegation that

Bierer was somehow part of the coordination of Stuart’s arrest.” Bierer Brf. 9, 13.

To the contrary, the FAC alleges Bierer as a Stuart Assault Coordinator accused in

most Counts, and details Bierer’s coordination with the other Stuart Assault

Coordinators to identify Stuart at the seminar and alerting SDCBA and Sheriff’s

deputies of his location. Claim 1.8 (ER 159). The FAC also details her involvement

in all five enterprises committing fraud, extortion, and kidnapping of Stuart. ER

296-302, 317-318).


10

G. Fritz Contradicts the FAC (DktEntry 45)

1. California Coalition, PBC

Fritz controverts FAC allegation of “an extended series of conflicts between

California Coalition and the San Diego Family Law Community.” Frtz. Brf. p. 9.

Fritz asserts this action “has nothing to do” with the history between the parties

because “California Coalition did not come into existence until the very day before

the original complaint was filed in this case.” Id. He supports this controversion

with purported evidence he submitted in support of a pleading-stage motion below—

his Supp. ER 1. Frtz. Brf. p. 9. Bierer engages in similar controversy. Bierer Brf.

19-20.

The controversy ignores the allegations of the FAC:

(1) alleging California Coalition membership as “mothers, fathers, and

children who have withstood abundant hardship resulting from the current practices

of what is generally described as the “Family Law Community” (ER 121);

(2) that “since 2008 California Coalition has assisted mothers, fathers, and

children in defending and supporting family autonomy in relations with one another

and government interests with related jurisdiction” (ER 131) (emphasis added);

(3) that “California Coalition is active in protecting, empowering, and

promoting parents and children through education, community support, lobbying,

litigation, and public and private entity awareness” (ER 131);

(4) detail describing California Coalition’s long history of efforts to redress

those grievances through petition, expression, political action, and commercial

competition3 (ER ER 121-137);

3 “In February, 2010, California Coalition members learned of a Seminar to

be hosted by SDCBA for various San Diego Family Law Community” which California Coalition attended “to raise awareness . . . promote CALIFORNIA COALITION alternatives to what it regarded as illegal, harmful business practices


11

(5) FAC exhibits consisting of photographs and documentation dating

California Coalition’s operations for years prior to filing this action (FAC Ex. 28).

Fritz’s focusses on the distinction between California Coalition for Families

and Children, PBC, a Delaware public benefit corporation, and successor to

California Coalition for Families and Children, Inc., a California corporation formed

in 2008, which was merged with California Coalition, PBC upon its formation in

August, 2013. These transactions are referenced at Doc. Nos. 114, 129 (sealed

declarations of Colbern Stuart in opposition to motions of Eric Ching to withdraw).

The PBC successor entity is the only existing corporate entity.

2. Stuart v. Stuart and People v. Stuart

Fritz controverts the FAC by offering pleadings from Stuart’s family court

dissolution and City Attorney prosecution. See Fritz Supp.ER 1-50. The evidence

was not admitted below and is irrelevant to this appeal. See accompanying Motion

to Strike Improper Excerpts.

3. Stuart’s Bar Status

Fritz controverts FAC allegations that Stuart was “admitted to practice law in

California, Arizona, and Nevada” before his disbarment by Defendant Garson’s

illegal persecution. Frtz.Brf. p. 11. The district court considered Fritz’s credibility

attack below and resolved the attack against Fritz. See ER 54-55 (“You can

represent yourself, that’s not a problem.”).

The FAC concedes Stuart’s disbarment as part of the retaliatory prosecution

of Garson and Goldsmith. ER 192-193; AOB p. 19. The FAC accurately alleges

of the Family Law Community, and continue CALIFORNIA COALITION’S PUBLIC BENEFIT ACTIVITIES” (ER 136) (emphasis added) at which “CALIFORNIA COALITION created promotional pamphlets and exhibits to distribute, and large “poster”-sized signage to display, and organized volunteers to participate in the SDCBA ENGAGEMENT.” ER 137; Doc. No. 90-1, Exhibits 26-28.


12

Stuart was previously a member of the bars of three states and five districts. ER 202-

206 (FAC Claims 3.2-3.5). All allegations relating to Stuart’s bar memberships are

accurate and necessary to support numerous FAC claims. See, e.g, “Stuart’s Position

Under the United States” ER 254-257 (Section 1985(1), (3) claims); ER 202-206)

(Malicious Prosecution Claims 3.2-3.5).


13

III. REPLY TO STANDARD OF REVIEW

A. Review of Rule 8 is De Novo, Not Abuse of Discretion

Several Appellees inaccurately asserts the standard of review as abuse of

discretion. Fritz Brf. 19-20; Jud. Brf. p. 19. The cited cases analyzed under abuse

of discretion to dismiss as opposed to permit amendment after the district court’s

determination of the underlying issue of law—compliance with Rule 8. Dismissal

as a sanction under Rule 41(b) necessarily requires a preliminary determination of

an issue of law—a “failure to comply with these rules.” Fed.R. Civ.P. 41(b).

Compliance with Rule 8 is “essentially a question of law.” Hearns v. San

Bernardino Police Dep't, 530 F.3d 1124, 1129 (9th Cir. 2008).

B. Fritz Standards of Review are Inaccurate (DktEntry45)

Fritz cites Rhoden v. United States, 55 F.3d 428, 432 (9th Cir. 1995) in support

of argument that a district court has “discretion” to dismiss a complaint for failure

to comply with Rule 8. Fritz Brf. p. 29. This is a misrepresentation of Rhoden. In

Rhoden this Court reversed a district court’s grant of summary judgment against a

Section 1983 plaintiff, remanding the case to the district court. On appeal, the

plaintiff-appellant apparently also asked this Court for leave to amend the complaint

“to add a Bivens action.” Rhoden at 432. This Court determined that because the

case was being remanded, the request to amend was properly remanded to the district

court. Id. and n. 9. Rhoden advised on remand: “We note, however, that “[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” Id.

at n.9.

Fritz Appellees cite In re W. States Wholesale Natural Gas Antitrust Litig.,

715 F.3d 716 (9th Cir. 2013) cert. granted sub nom. Oneok, Inc. v. Learjet, Inc., 134

S. Ct. 2899 (2014) for the claim that leave to amend is “not automatic.” Fritz Brf.

p. 29. W. States is inapposite—there plaintiffs were seeking to amend under Rule


14

15 to add a “treble damages” antitrust claim based on the same facts as the non-treble

damages state law claims of their original complaint. This Court affirmed denial of

leave because the treble damages claim was based on the same facts as the original

claims, and could have been brought at the outset of the litigation. Id. at 738.

Plaintiff’s delay in seeking the late-stage amendment adding new claims and theories

caused prejudice to defendants, making amendment inappropriate. Id. at 739.

C. “Other Grounds” are Reviewed De Novo

Appellees asserting “other grounds” 4 provide inaccurate statements of

standard of review. The district court’s July dismissed with prejudice for Rule 8

alone—it made no decision regarding the “other grounds” defendants assert,

meaning there is no decision in the district court on “other grounds” to review. See

Motion to Dismiss filed herewith. Appellees sought dismissal on the “other

grounds” below under Rule 12(b)(6), review of which is de novo. Abagnin v.

AMVAC Chemical Corp., 545 F.3d 733, 737 (9th Cir. 2008).

4 See, e.g., Doyne Brf. (DktEntry 64-1 at 8), “Statement of Issues” 2 “Whether

other grounds for dismissal raised by Defendant/Appellee Doyne, including the statute of limitations, abstention, the Rooker-Feldman, quasi-judicial immunity, immunity for reporting child abuse under Penal Code § 11172(a) and failure to state facts sufficient to constitute a cause of action support dismissal of the First Amended Complaint.”


15

IV. REPLY TO ANSWERING ARGUMENTS5

A. The District Court’s Dismissal with Prejudice Was Error

1. A District Court Cannot Dismiss Sua Sponte with Prejudice For Curable Rule 8 Issues

Judicial Appellees6 claim the district court’s dismissal with prejudice under

Rule 8(a)(2) alone was not sua sponte because the Omnibus referenced Rule 8 as

part of its Notice and analysis under Rule 41(b). Jud. Brf. p. 34. Judicial Appellees

concede the Omnibus notice (Jud. SER (DktEntry: 51-2, p. 160) and briefing sought

dismissal with prejudice under Rule 41(b) and not under Rule 8 alone. See

Appellee’s Notice and Introduction to the Memorandum (“The FAC should be

dismissed with prejudice on the following grounds: 1) Pursuant to Rule 41(b) for

failure to comply with Rules 9(b), 8(a), 8(e), and for violations of the court’s orders

and other rules;”). Supp. ER 107 (DktEntry 45-2); DSER 4, 12 (DktEntry 64-2, 6).

Because the district court analyzed under rule 8 alone, Judicial Appellees must

concede either (a) their notice was deficient, or (b) the district court acted sua sponte.

Either concession is sufficient to reverse. See AOB at 34-35.

California Coalition does not contend a lack of opportunity to argue Rule 8

issues as one element of the five-factor Rule 41(b) analysis, but that that the district

court bypassed the noticed grounds for dismissal—“Rule 41(b) for failure to comply

with Rules 9(b), 8(a), 8(e)…”—to analyze under the subsidiary issue of Rule 8

alone. If the Omnibus would have noticed a request to dismiss at the court’s

“discretion” on Rule 8 alone, California Coalition would have vigorously argued

against the irregularity of a “discretionary” dismissal under Rule 8. Rule 8 is a

5 This Section IV follows the AOB “ARGUMENT” section. See

CONTENTS, AOB p. 2. 6 All Appellees joined Judicial Appellees’ briefing; references to “Judicial

Appellees” and “Jud. Brf.” includes all joinders.


16

standard of pleading that must be enabled by other rules such as Rule 12(b)(6), (e),

or 41. AOB p. 35. The court’s dismissal on grounds not noticed was improper.

Judicial Appellees attempt to defend the district court’s sua sponte dismissal

with a bald assertion that “a motion to dismiss for failure to comply with Rule 8 was

also appropriate.” Jud. Brf. 40. This is an inaccurate statement of law—the Rules

contain no “motion to dismiss for failure to comply with Rule 8.” “The remedy for

an allegation lacking sufficient specificity to provide adequate notice is, of course, a

Rule 12(e) motion for a more definite statement.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 597 (2007). “If a pleading fails to specify the allegations in a manner that

provides sufficient notice, a defendant can move for a more definite statement under

Rule 12(e) before responding.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514

(2002).

The “discretion” Appellees reference arises after a district court has first

accurately determined first the issue of law that is Rule 8; then second properly

weighed the five Thompson factors. Hearns at 1129. Appellees cite no authority

supporting the ridiculous contention that a court has “discretion” to dismiss for

failure to comply with Rule 8 alone.

2. The District Court Bypassed Rule 41(b) Because Appellants’ Successfully Objected to the Evidentiary Lucas Declaration

Neither the San Diego County Bar Association (represented by Mr. Lucas)

nor any Appellee dispute that the district court disregarded the evidentiary Lucas

declaration and Omnibus 41(b) analysis based thereon.

3. The District Court Referenced, But Did Not Analyze Under Pre-Twombly Authority

Judicial Appellees misconstrue the district court’s treatment of McHenry,

Nevijel, and Schmitd. Jud. Brf. (DktEntry 51-1) 34-35. The district court lifted


17

quotes7 from those cases describing complaints there at issue—“The Ninth Circuit

has affirmed . . . ” ER 5:8-14. The district court did not find the FAC committed

those sins. The court instead accused length, acronyms and defined terms, and a

general reference to “unmanageable, argumentative, confusing, and frequently

incomprehensible” ER 8, 10.

4. McHenry, Nevijel, and Schmitd Are Inapposite

a. McHenry Applied Abrogated “Forms Of Action” Standard and Abrogated Circuit Law

Appellees rely heavily on McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996).

McHenry applied abrogated pre-1937 Federal Rules “form of action” standards.

Judge Kleinfeld wrote: “The forms of action we have buried, but they still rule us

from their graves. . . . [T]here are good reasons why the forms of action still shape

pleadings, though the rules no longer require pleadings to conform to the ancient

forms.” Id. at 1180 (quoting F.W. Maitland, The Forms of Action At Common Law

2 (1909)). Judge Kleinfeld dismissed despite finding the magistrate identified

several cognizable claims. Id. at 1176-77.

This astonishing reach into the “graves” of the obsolete forms of action to

uphold dismissal with prejudice of a viable complaint has been error since the 1938

Rules Enabling Act, which expressly “buried” the ancient forms of pleading in favor

of a single form—the “civil action.” “The court may at any time unite the general

rules prescribed by it or cases in equity with those in actions at law so as to secure

one form of civil action and procedure for both.” Ch. 651, Pub.L. 73–415, 48 Stat.

1064, enacted June 19, 1934. In “burying” the forms the Act provides: “All laws in

conflict with such rules shall be of no further force or effect after such rules have

taken effect.” 28 U.S.C.A. § 2072 (West). Notwithstanding Judge Kleinfeld’s

7 “A tome approaching the magnitude of War and Peace,” “try to fish a gold

coin from a bucket of mud.” Jud. Brf. p. 36-37.


18

fondness for Professor Maitland and the ancient forms of action, his foundation for

the holding of McHenry remains—gratefully—long-interred.

McHenry also invoked a comparison with the skeletal Form 9 to the Rules, a

standard which has been sadly abandoned since Twombly. “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 . . .” Kadamovas v. Stevens, 706

F.3d 843, 844-45 (7th Cir. 2013). Dissenting in Twombly, Justices Stevens and

Ginsberg berated their majority for abandoning Form 9 by “rewrite[ing] the Nation's

civil procedure textbooks and call into doubt the pleading rules of most of its States

. . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 579 (2007) (Stevens, J., Ginsburg,

J., dissenting). “[T]he Court has announced a significant new rule that does not even

purport to respond to any congressional command . . . .” Id. at 596. McHenry’s

invocation of Form 9 even further diminishes its authority in the present case

asserting complex conspiracies against many defendants subject to Twombly’s

plausibility standards that compel detail and abandonment of Form 9’s simplicity.

McHenry also cited to Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) which

was overruled in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir.

2002) as defying then-controlling Supreme Court authority of Leatherman v.

Tarrant County Narcotics Unit, 507 U.S. 163 (1993). See also Crawford–El v.

Britton, 523 U.S. 574, 599 (1998) and Swierkiewicz v. Sorema N. A., 534 U.S. 506,

508 (2002). Branch, too, is long dead.

It would be difficult to identify a more morbid assembly of dead law in a live

case than McHenry. Yet McHenry is beloved by some desiring error. California

Coalition respectfully suggests this Court could serve beneficial ends by ending

McHenry’s death struggle with the final stake of abrogation.


19

b. Nevijel Has Been Repeatedly Diminished

In Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) plaintiffs

conceded (perhaps unwisely) that their third complaint did not comply with Rule 8,

and sought leave to amend again. On plaintiffs’ admission, the district court denied

leave and dismissed. Plaintiffs on appeal did not assert compliance with Rule 8, but

only that “that the district court abused its discretion in dismissing” the case under

Rule 41(b) because “less drastic alternatives” were available. Id. at 674. This Court

affirmed on the admission and also “aggravated circumstances” of three other cases

brought by the same plaintiff in different state and federal venues against the same

insurance defendants on the same legal theories that had been dismissed for the same

reasons. Id.

Nevijal’s facts are not present. California Coalition insists the FAC—an

initial complaint to most Appellees—satisfies Rule 8, but could be amended to cure

technicalities. AOB 44-45. Appellees do not allege “aggravated circumstances”

because California Coalition has brought no prior suit.

Nevijel has been repeatedly diminished since 1981. In Hearns v. San

Bernardino Police Dep't, 530 F.3d 1124, 1129 (9th Cir. 2008) this Court revisited

Nevijel’s application of the “abuse of discretion” standard, holding “We review a

Rule 41(b) dismissal for abuse of discretion. To do so, we must necessarily consider

the legal question of whether the district court correctly dismissed without prejudice

the original complaint on Rule 8 grounds. ‘A district court by definition abuses its

discretion when it makes an error of law.’” Id. at 1129 (internal citations omitted).

This Court in Hearns declined to follow Nevijel, reversing the district court’s

dismissal under Rule 41(b) as an abuse of discretion because, by misapplying Rule

8, the district court committed an error of law. Id.

Other courts have declined to follow Nevijal. See Fid. Nat. Title Ins. Co. v.

Castle, 2011 WL 6141310 (N.D. Cal. 2011) (RICO complaint against 52 defendants,

12 counts, 44 pages, 565 pages of exhibits, 13 plaintiffs, with claims “broken into


20

parts” and in which plaintiffs “regularly refer to ‘defendants' without specifying

exactly which defendant or defendants is liable for the alleged acts.”) “[T]he Court

finds no fault with the length and complexity of the complaint, as that is a necessary

consequence of the number and complexity of the schemes alleged.” Id.;

Sathianathan v. Smith Barney, Inc., C 04-2130 SBA, 2004 WL 3607403 (N.D. Cal.

June 6, 2005), n. 15 (declining to follow Nevijel where plaintiff proceeding in pro

se); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988)

(declining to follow Nevijel where plaintiff proceeds in pro se).

5. Rule 41(b) Sanction Would Be Error

Judicial Appellees concede the district court “did not specifically reference

Rule 41(b),” but assert nevertheless the court’s analysis under Rule 8 would have

been sufficient under Rule 41(b). Jud. Brf. 37. Judicial Appellees are incorrect.

First, in ruling on California Coalition’s Objections and Motion to Strike the

district court agreed to disregard the entire Omnibus Rule 41(b). AOB p. 34, ER 14.

Judicial Appellees are attempting to overcome judicial sanction by an unearned

second bite.

Second, Judicial Appellees themselves do not present an issue under Rule

41(b) in this appeal: “The issues presented in this appeal are: (1) whether the district

court abused its discretion in dismissing the action for failure to comply with Federal

Rule of Civil Procedure 8.” California Coalition does not present an issue under rule

41(b): “Can a district court dismiss a complaint with prejudice sua sponte for failure

to comply with Rule 8(a)(2), without analyzing grounds for dismissal under Rule 12

or 41(b)?” Apparently all parties agree—dismissal under Rule 41(b) is not presented

on appeal.

Yet, even if this Court elects to analyze under Rule 41(b), Judicial Appellees’

attempt to salvage grounds for a Rule 41(b) dismissal fails.


21

a. The District Court Construed Rule 8(a)(2) Contrary to the Unambiguous Rule and Rules 8(d) and (e)

No appellee contests California Coalition’s assertion that the district court

construed Rule 8(a)(2) contrary to the face of the rule, and that the extra-textual

construction deprived California Coalition of fundamental rights constituting a

violation of the Rules Enabling Act. AOB at 38-40. This Court may reverse on

these concessions alone.

b. Defendants and The District Court Demonstrate They Understood Most Claims, Satisfying Rule 8

Other than lifting pithy blurbs other cases, Appellees do not contest California

Coalition’s assertion that they and the district court8 understood most claims. AOB

at 40. Appellees demonstrate this dispositive fact again in this Court through their

improper “other grounds” arguments re-asserting the same vigorous, pointed attacks

from the Omnibus. Their behavior demonstrates the FAC gives notice sufficient to

satisfy Rule 8.

c. Post-Twombly Pleading Under Rule 8(a)(2) Requires Detail

No appellee contradicts that post-Twombly pleading of conspiracy requires

greater factual detail. In their “other grounds” answers, Appellees re-assert attacks

in the district court accusing insufficient detail to establish plausibility. These

attacks were unpersuasive in the district court—likely because they were asserted

contrary to the multi-stage process set forth in Iqbal and Moss I. AOB p. 43.

8 The district court also recognized causes of action, stating: “It is a complaint

that is in the nature of the sort of thing I might expect to see from an uneducated person who is in custody who knows nothing about the law and has simply pulled out books and statutes and recited the causes of action without any recitation to facts or relationship to the defendants in the case.” ER 53 (emphasis added). Stuart—an intellectual property lawyer—was in custody when he drafted the Complaint (FAC ¶453; Doc. Nos. 114, 129, 155-1 (sealed)), did “pull out books” from jail libraries—there being nothing else to “pull”—and vigorously asserts the claims do not lack “recitation to facts or relationship to the defendants.”


22

d. Acronyms and Defined Terms Do Not Foul Rule 8

Several appellees repeat the district court’s unfair criticism of acronyms and

defined terms citing U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374 (7th

Cir. 2003), a False Claims Act qui tam action similar to Cafasso.9 In Garst Judge

Easterbrook affirmed dismissal of a complaint which, in 155 pages, failed to plead

even a single False Claims Act fraud claim. Garst at 377. Like Ms. Cafasso, Ms.

Garst alleged facts implying fraud, but did not achieve the high Rule 9(b) hurdle of

False Claims Act fraud. To overcome the shortfall, both Garst and Cafasso

unsuccessfully re-pled volume of circumstance that could not vault the fraud hurdle,

simultaneously corrupting her “short, plain” pleading. Id. Here, Appellants plead

to lower thresholds, and successfully allege many cognizable claims.

Judge Easterbrook’s displeasure with acronyms arose because they referenced

concepts and documents that were external to the complaint: “The acronyms alone

force readers to look elsewhere” Id. Here, the FAC acronyms and defined terms

refer only to internal concepts each defined in the complaints. See DktEntry 12

(Motion to Take Judicial Notice) p. 5-6.

Most importantly, Judge Easterbrook conceded that if plaintiff would had pled

even a single “false claim” (Section 3729) “claim” (Rule 8), all pleading sins are

forgiven: “A concise statement of the claim illustrated by 400 concrete examples of

fraud would be one thing, but 400 variations on the kind of paragraph we have

quoted are quite another.” Id. at 378. Here, Appellees cannot deny the FAC pleads

many cognizable claims.

e. Acronyms and Defined Terms Enable Short, Plain Claims

Tagging enables efficient pleading of “short, plain” claims while eliminating

repetition. For example, the FAC alleges facts describing California Coalition’s

interaction with state and federal authorities seeking the investigation, arrest, and

9 See also AOB p. 42, Motion To Take Judicial Notice (DktEntry12) p. 4-6.


23

prosecution of several defendants at FAC ¶¶76-97 (ER 124-131), tags the section as

“DUE ADMINISTRATION OF JUSTICE” and incorporates the allegations into

multiple “short, plain” claims:

Common Allegations (FAC ¶¶ 107-116; ER 135-137);

Stuart Assault: Claims 1.1-1.13 (FAC ¶¶149-309; ER 143-171);

City Attorney Malicious Prosecution/Obstruction of Justice (and anticipatory

pleading of statute of limitations tolling and estoppel, accrual issues): Claims

3.1-3.6 (FAC ¶¶349-508; ER 177-207)

Commission Conspiracy/Obstruction of Justice: Claims 5.2, 5.5 (FAC ¶¶581-

625; ER 222-230);

Conspiracy to Interfere With Rights (Section 1985): Claim 9.2 (Section

1985(2) (FAC ¶¶774-789; ER 257-261), Claim 9.3 (Section 1985(3)(a)) (FAC

¶¶790-793; ER 261-262);

The definition of the domestic dispute industry marketplace (FAC ¶956; ER

197);

Racketeering Count 3: Kidnapping (FAC ¶¶ 1039-1073; ER 324-329);

Racketeering Claim for Relief 4.2: Extortion (FAC ¶¶1079-1082; ER 330-

331);

Racketeering Claim for Relief 5.1: Obstruction of Justice (FAC ¶¶1083-1130;

ER 331-340);

Racketeering Count 6: Violent Crime in Aid of Racketeering (FAC ¶¶1131-

1134, ER 341);

All conspiracy and aiding and abetting Racketeering Counts (Racketeering

Counts 7-10) (FAC 1135-1176; ER 341-348);

Prospective Relief Count 1: Section 1514(b) Witness Harassment Restraining

Order (FAC ¶¶1192-1197; ER 351-352); and


24

Prospective Relief Count 2: Declaratory Judgment and Restraining Orders

(for Article III standing purposes) (FAC ¶¶1198-1203; ER 353-355).

The district court accused tagged passages as “pages of generalized

grievances about the family courts.” ER 47. The accusation is incorrect—each

tagged section provides necessary factual foundation for several claims. For

example, the district court may have regarded allegations describing California

Coalition’s petitioning and free speech interaction with the “Family Law

Community” at the Stuart Assault as “generalized grievances.” The passage is not

merely “generalized grievances,” but instead an operative concept in several claims.

The section is tagged as “ENGAGEMENT” (FAC ¶¶64-70; ER 121-123)) and

incorporated into Counts 1, 2, 3, and most others.

Similarly, federal supremacy-related reform and petition activity is described

as “Family Federal Rights Reform, Exercise, Support and Advocacy” and tagged as

“FFRRESA” (FAC ¶¶71-75; ER 123-124) and incorporated into to civil rights,

obstruction of justice and prospective relief counts, enterprise (RICO) allegations,

tolling, estoppel, and accrual (statute of limitations anticipatory pleading), and

anticompetitive practices (RICO and Lanham Act). California Coalition’s presence

and purposes in the domestic dispute industry’s commercial marketplace and

competition with defendants is tagged as “PUBLIC BENEFIT ACTIVITY” (FAC

¶¶98-106; ER 131-135) and incorporated into Lanham Act and racketeering counts;

and many others.

It’s difficult to conceive a more effective method of pleading “short, plain”

claims. The practice is common. See DktEntry 12 (MTJN) Exs. 1-4.10

10 Appellees understand the usefulness of acronyms—their answering briefs

define over a dozen. See “AOC” or “Administrative Office of the Courts” (DktEntry 51-1); (“AOB” or “Appellants’ Opening Brief” (DktEntry 45-1); “AJOB” is nowhere defined but presumably means “Appellants’ Joint Opening Brief”


25

Several Appellees repeat the district court’s error asserting the FAC contains

“terms with no discernable meaning” (ER 8). The accusation is error because the

FAC defines “black hat” at ¶955 (ER 304), and “poser advocacy” “paperwad” and

“kite bomb” at ¶985 (ER 312).

f. Peonage Predicates Are Properly Pled

Appellees do not contest authority such as Sedima, Turkette, and Philip

Morris holding that indirectly-accusing predicates are properly pled to establish

RICO elements of enterprise, continuity, and defendants’ participation in the

enterprise. Appellees do not contest that RICO enables a broad dragnet to capture

anyone associated with organized crime, including conductors such as Mr. Jahr and

operators such as Ms. Levin. Appellees do not contest Appellants’ observations that

the district court alone attacked peonage predicates sua sponte, and that the district

court’s plausibility attack must proceed under the multi-stage process established 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”). See AOB p. 42-43.

(DktEntry 62); “CCFC OB” is nowhere defined but presumably references “California Coalition for Families and Children Openning Brief” (DktEntry 64-1); “OB” defined as “Opening Brief of Appellant” (DktEntry 64-1); “CJP or “Commission on Judicial Performance” (DktEntry 51-1); “AOC” or “Administrative Office of the Courts” (DktEntry51-1); “SDCBA” or “San Diego County Bar Association” (DktEntry 65-1); “SER-F” or “Supplemental Excerpts of Record-Federal” (DktEntry 65-1). “ACFEI” or “American College of Forensic Examiners International” (DktEntry 55); “CCFC” or “California Coalition for Families and Children” (DktEntry 60, 64-1); “SER” or “Supplemental Excerpts of Record” (DktEntry 51-1); “DSER” or “Doyne Supplemental Excerpts of Record” (DktEntry 64-1); “MTD” or “Motion to Dismiss” (DktEntry 51-1); “RJN” is nowhere defined but presumably references “Request for Judicial Notice” (DktEntry 64-1)


26

g. Defendants Proved No Prejudice

No appellee salvages the district court’s error of defining “prejudice” to

include the district court, it’s docket, or parties in other cases. Only prejudice “to

the defendants” is relevant. Thompson v. Hous. Auth. of City of Los Angeles, 782

F.2d 829, 831 (9th Cir. 1986).

Rule 41(b) is a sanction—primarily geared toward unreasonable failure to

prosecute, causing delay, and thereby prejudice. The Thompson factors “expeditious

resolution” “manage its docket” and “prejudice to the defendants” contemplate

timing issues.

No appellee can complain of delay. California Coalition has expeditiously

prosecuted at every step. Appellants filed this action 100 days after Stuart’s release

from county jail and an oppressive 4½ year “suspended sentence,” rapidly served all

defendants within about 60 days of filing (Doc. Nos. 11, 13-15, 24-38, 41-46),

sought no extensions of time to plead (defendants sought extensions), amended and

filed the FAC in twenty short days over the 2013 holiday season after the December

19 oral dismissal (ER 49), complied with the court’s aggressive Omnibus briefing

schedule giving California Coalition 30 days to oppose twenty motions (ER 33) , and

filed notice of this appeal (ER 4) five days after entry of final judgment (ER 1). The

FAC is a first pleading to most Appellees. AOB 23, 42. Appellants have never

sought extension or missed a deadline, and no defendant has ever complained of

delay.

Appellees’ complaints under Rule 41(b) relate to technical pleading issues

which Appellees have concocted as some desire more (others less) detail at this

pleading stage. If anyone, Appellees have delayed this case by their inefficient

insistence to adjudicate merits at the pleading stage.

Nor is the fact that defendants must “comb through” the complaint

“prejudice”—otherwise every complex case would be disposable as a sanction.

“Prejudice” is the serious impairment of a right—such as fleeting evidence. The


27

FAC alleges Appellees are already in possession of relevant public records and

evidence. See ER 179, 194, 196, 198, etc. Defendants have not and cannot allege

“impairment.”

h. Public Policy Favors Adjudication on Merits.

“In cases that implicate important public policy concerns, the court should

weigh the public interest in the case and the preference for disposing of cases on

their merits prior to granting dismissal.” United States v. National Medical Enters.,

Inc., 792 F.2d 906, 913 (9th Cir.1986); Dahl v. City of Huntington Beach, 84 F.3d

363, 366 (9th Cir. 1996). This case is aimed to remedy conditions critical to millions

of families and children within this Circuit—dishonest legal and social services,

criminal enterprises involving statewide Family Court psychologists, prosecutors,

and county judges, and the integrity of the statewide Family Court system itself.

The Thompson balancing test weighs overwhelmingly against a sanction of

dismissal of an initial complaint on curable pleading technicalities.

i. Legitimate “Manageability” Concerns Are Not Grounds for Dismissal

Appellees cite no authority supporting the district court’s assertion of

“manageability” concerns as warranting dismissal with prejudice. Because

“manageability” is not relevant to Rule 8(a)(2), and never sufficient grounds for

dismissal with prejudice, this Court may disregard the heavy reliance on

“manageability.” Philip Morris, 449 F.Supp. 2d 1, 29 (2006).

j. California Coalition Requested to Amend

Appellees do not deny that the Omnibus was a first attack for all but Superior

Court and Commission Appellee, or that California Coalition made numerous

representations of ability and willingness to amend. They offer no defense of the

district court’s refusal to permit amendment, particularization, or deployment of the

Civil RICO Case Statement made available by the Southern District for precisely

this circumstance. Indus. Bldg. Materials, Inc. v. Interchemical Corp., 278 F. Supp.


28

938, 949 (C.D. Cal. 1967) (“drastic remedy” of sanction only appropriate where no

less drastic measures available).

B. The Superior Court’s Initial Rule 12(b)(6) Motion Asserted

Clarification Issues Not Enabling Dismissal

Judicial Appellees defend their initial decision to seek only dismissal with

prejudice under Rule 12(b)(6) (rather than 12(e)) by stating that “a motion to dismiss

for failure to comply with Rule 8 was also appropriate.” Jud. Brf. p. 40. This mis-

states Appellants’ point: Appellants do not claim that a motion to dismiss under rule

12(b)(6) based on an alleged failure of Rule 8 was “unavailable,” but instead assert

that Judicial Appellees made a tactical error of grossly overreaching for a Rule

12(b)(6) insisting on only dismissal with prejudice against an initial complaint for

curable pleading technicalities more properly addressed under Rule 12(e)—or by the

voluntary process proposed in California Coalition’s “Meet and Confer.” See Doc.

No. 21-1 Ex. “A”.

The district court salvaged Judicial Appellees’ overreach by granting leave to

amend, yet the proper disposition of the overreach was to deny the motion to dismiss.

This disposition was error, which all defendants compounded in the Omnibus’s

assertion of failure to comply with the improvident order. Absent the initial

improvident dismissal with leave, there is insufficient basis for the Omnibus request

for sanction, and this case proceeds toward adjudication in the district court.

The initial dismissal was an interlocutory order in error, precipitating the July

dismissal with prejudice. This Court may reverse on either error alone.

C. Defendants Did Not Prove Factual Foundations for Judicial or

Eleventh Amendment Immunity

Commission and Judicial Appellees concede that judicial and Eleventh

Amendment immunities are (1) affirmative defenses (2) turning on facts, (3) for


29

which they bear the burden of proof, (4) on the face of the complaint at this stage,

(5) with certitude.11

1. The Commission Has Not Proven Statehood

Commission Appellees concede the critical issues necessary to reverse—“the

issue of state-funding was unsolved by the district court.” Comm. Brf. (DktEntry:

62) p. 18. They thus concede that Eleventh Amendment Immunity requires receipt

of facts the Commission did not (and could not at the pleading stage) introduce in

the district court. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812

F.2d 1103, 1110 (9th Cir. 1987) (“We must look behind the pleadings . . .”); Fed.R.

Civ.P 8(c)(1); ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289, 1291 (9th

Cir. 1993). The Commission concedes this Court has no precedent precluding the

factual issue of the Commission’s relationship with the State of California. Comm.

Brf. p. 19.

Commission incorrectly claims Appellants assert “Eleventh Amendment

immunity may not be raised in a motion to dismiss.” Jud. Brf. 14. The AOB argues

the opposite—that immunity may be adjudicated on a motion to dismiss “in unusual

circumstances—where the face of the Complaint ‘admits’ the defense . . . ‘with

certitude.’” AOB 47. Commission Appellees did not assert that the original

11 Commission Appellees must prove these facts: (1) A money judgment

against the commission “would expend itself on the public treasury.” Dugan v. Rank, 372 U.S. 609 (1963); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986); (2) The specific acts accused in the Complaint were the exercise of state-level authority. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); and (3) The State of California would be bound by any injunctions issued by the district court below. Pennhurst, supra.; Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994). It is insufficient that the Commission may exercise a “slice of state power.” Id.


30

Complaint “admitted” the Commission as a State “with certitude,” and must concede

it asserted the opposite fact—the Commission is an “entity” “beneath state level.”

AOB at 48; Compl. ¶¶ 18, 172. These factual allegations are presumed true. Ashcroft

v. Iqbal, 556 U.S. 662, 664 (2009).

a. Commission Concedes Ricotta is Insufficient

Commission Appellees also concede the single case relied on by the district

court—Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998)—“did not

engage in an extensive Eleventh Amendment assessment.” Comm. Brf. p. 20. That

is a vast understatement—Ricotta did not engage in any “Eleventh Amendment

assessment” because Mr. Ricotta, appearing in pro se, unwisely conceded he

“erroneously sued the state” when naming the Commission. Ricotta at 976.12

These concessions alone are sufficient to reverse the district court’s dismissal

based solely on Ricotta. See AOB at 47-48.

b. Commission Appellees Improperly Assert New Facts Contrary to the FAC

At this pleading stage, the only source of facts under the Eleventh Amendment

analysis are those pled in the initial Complaint (Doc. No. 1). The Commission

cannot contest that the presumed-true allegations describe Commission Defendants

12 Commission Appellees cite this Court’s 1998 unpublished decision in

Ricotta in violation of Circuit Rule 36-3(c). Commission Brf. p. 20, n.3. The illegal citation is aggravated by the fact that the Commission implies the Supreme Court’s denial of certiorari on Mr. Ricotta’s unsuccessful petition (528 U.S. 864 (1999)) supported the district court decision. Appellants respectfully request leave of Circuit Rule 36-3(c) to submit rebuttal (not authority) refuting the Commission’s citation to the unpublished decision. The Supreme Court’s denial of Mr. Ricotta’s petition on the unusual outcome of this Court’s (unpublished) opinion cannot be construed to affirm a finding that the Commission was entitled to Eleventh Amendment immunity. The district court’s (published) adjudication of Eleventh Amendment immunity issues (4 F. Supp. 2d 961 (S.D. Cal. 1998)) was not adjudicated in the unpublished decision. In an extremely unusual outcome, only a Rooker-Feldman issue that was not presented in the district court or on appeal was dispositive in this Court’s (unpublished) opinion, and thus on petition.


31

as “beneath State level” entities. Compl. ¶18 (“an entity”), caption (“municipal

entity”). Both SIMI and BATTSON are sued in both individual and official

capacities under only the Commission—neither are identified as employees or

agents of the State of California. Compl. ¶¶19, 20. On the only relevant record, the

Commission’s motion should have failed.

c. Commission Offers California Law as Fact—Yet Undermines Commission’s Sovereignty Claim

Commission Appellees cite California law as a substitute for necessary facts

evidencing their relationship with the State of California. Statutes establish legal

authority—they are not evidence necessary under Pennhurst (State treasury in

jeopardy, State has complete control, and entire State will be bound—see n. 11,

supra.). The recitations contained in the Constitution and Government Code statues

are in this context inadmissible hearsay offered for the truth of the matters asserted.

They were not submitted by other means such as judicial notice, and are thus

strikable as matter outside of the record. See accompanying Motion to Strike

Improper Excerpts. In the district court Commission Appellees did not, and could

not at the pleading stage, introduce this controversial evidence.

The statutes are further inadmissible as they controvert the Commission’s own

assertion of unity with the State of California. The Commission’s citations indicate

it exercises subordinate, specific jurisdiction over county officials subordinate to the

Supreme Court (Comm. Brf. p. 16); its finances are “separate from the budget of any

other state agency or court” (Id. p. 18); it has “independent rule-making authority”

(Id.); is operated by citizen volunteer and county judge members; maintains

“independent” structure, and powers over active and retired (non-State-employee)

county officials to “investigate”; and has “oversight and discipline of subordinate”

(county) judges (Id.). The Government Code sections describe independent

Commission powers to investigate retired (non-State-employee) county officials;

management of county judge disability retirement applications; its governance by


32

“masters” (rather than state legislators); its independent ability to hire, manage,

reimburse, and pay “medical and other experts and reporters” and independent

“special counsel” from “funds available to it” (Id. at 19) (emphasis added).

These sections also do not evidence the state Constitution’s “establishment”

of the Commission. They are rules like any other state law governing behavior—

how the Commission’s members are appointed, length of terms served, and how

judges are disciplined. The California Constitution “references” many entities

which are well-recognized as “beneath State-level,” including counties (Art. 11 § 1),

cities (Art. 11, § 6), county courts (Art. 6, § 1), schools and school districts (Art. 9

§§ 5, 6, 14), the Regents of the State of California (Art. 9, § 9), and the “public

corporation” that is the State Bar of California (Art. 6 § 9).

If California law becomes admissible as evidence at some stage, it will

undermine Commission’s claim to unity with the State.

d. The State of California Has Waived or Consented to Federal Jurisdiction in Due Process and Equal Protection Claims

The Fourteenth Amendment provides: “No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const., Amend. XIV, sec. 1. The Amendment, passed by

representatives of the States in the Senate in 1868, nearly 84 years after the 1795

ratification of the Eleventh Amendment, constitutes unequivocal consent by the

States, through their representatives in the Senate, to be bound by this federal law.

Section 5 of the Fourteenth Amendment grants Congress the power to enforce

the Section 1 guarantees against States by enacting “appropriate legislation.” Bd. of

Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001). The 1871 Civil

Rights Act, also enacted by representatives of States in the Senate, was a specific

deployment of Congress’ power under section 5, empowering citizens to bring suit


33

under the Fourteenth Amendment, and further articulating the States’ consent to be

sued in federal court for its violations of the Fourteenth Amendment.

“Therefore something is uniquely amiss in a society where the government,

the authoritative oracle of community values, involves itself in racial

discrimination.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 190-91 (1970)

(Brennan, J., concurring in part and dissenting in part). Justice Brennan’s

observation was formally enacted into legislation in 1986. 42 U.S.C. 2000d-7

provides:

(1) A State shall not be immune under the Eleventh Amendment of the

Constitution of the United States from suit in Federal court for a violation of

section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the

Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age

Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil

Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other

Federal statute prohibiting discrimination by recipients of Federal financial

assistance.

(emphasis added).

The Fourteenth Amendment and the Civil Rights Act are both a “Federal

statute prohibiting discrimination.” The State of California receives generous

“Federal financial assistance” through numerous sources including interstate

highway, education, agriculture, housing and urban development, energy, justice,

labor, social insurance and welfare, and medical insurance assistance, incentive

“matching” payments to States for child support enforcement and family programs

under Titles I, IV-A and –D, X, XI, XIV and XVI of the Social Security Act and the

Act of July 5, 1960 (24 U.S.C. Chapter 9).

The FAC alleges discrimination through numerous equal protection and due

process claims. See “EQUAL PROTECTION” at ER 145 (FAC ¶ 163); EQUAL


34

PROTECTION CLASSES at ER 230-32 (FAC ¶ 629-635); Section 1983, 1985, and

1986 Counts at ER 257-264 (FAC ¶¶ 774-807); SUBSTANTIVE DUE PROCESS

at ER 146 (FAC ¶ 165); and Prospective Relief Count 2 at ER 353-55.

As the State of California has received abundant “Federal financial

assistance,” it has subjected itself to the jurisdiction of United States courts for

claims the State has discriminated in the administration of that assistance. Even if

mere “arms of the state,” Commission Appellees must defend this lawsuit in a United

States courthouse. See Edelman v. Jordan, 415 U.S. 651, 671 (1974)

e. California Constitutional Immunity Does Not Protect the Commission; Employees are Not Immune For Ultra Vires Acts

California Coalition concedes that Mssrs. Simi and Battson enjoy an

immunity against state law claims for acts taken in the course of their official duties.

California Coalition accuses only unconstitutional conduct, which can never be

pursuant to official duty. FAC Count 5, Racketeering Counts 1-11 (ER 217-231,

316-349); Cal. Const. art. I § 26; Katzberg v. Regents of Univ. of California, 29 Cal.

4th 300 (2002); Pennhurst at 909 (1984). Duly-enacted legislation bestowing

immunity on select officials performing the critical public duty of disciplining

judicial officials does and should enjoy a presumption of the strongest immunity.

Un-enacted “policy” proclamation by judicial officials who uniquely benefit from

their self-legislation does and should suffer the opposite presumption—of reckless

illegitimacy.

f. The Commission’s “Other Grounds” Are No Help

The December 23 dismissal (ER 48) cited only Ricotta and California

Constitution Art. IV, § 18(h) without reference to other law the Commission asserts

here. Appellants distinguished Commission’s other cases below demonstrating they

too failed to adjudicate the critical issue, and the district court apparently agreed.

Doc. No. 57, pp. 15-17. Commission’s new law should be disregarded, and its


35

dismissal be reversed and remanded instructing that Commission Appellees must

introduce evidence in the district court.

2. The District Court Extended Judicial Immunity under Ashelman v. Pope Contrary to Controlling Supreme Court Authority

a. Judicial Appellees Concede They Failed to Proffer, and the District Court Failed to Conduct, an Historical Analysis of Function at Common Law

Judicial Appellees concede they and the district court failed to identify a

“firmly-rooted tradition” of an immunity at 1871 common law for any of the

functions accused in the FAC. Tower v. Glover, 467 U.S. 914, 920 (1984); Jensen

v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000). This concession is sufficient to

reverse. Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974).

b. Appellees Attempt to Shift Their Burden

Appellees defend instead by arguing as if plaintiffs have a burden of pleading

non-immunity: “[T]he FAC fails to identify any acts outside the scope of judicial

immunity.” Jud. Brf. p. 47. The burden works in the opposite direction: “The

presumption is that qualified rather than absolute immunity is sufficient to protect

government officials in the exercise of their duties. . . . The burden is on the official

claiming absolute immunity to identify the common-law counterpart to the function

that the official asserts is shielded by absolute immunity.” Miller v. Gammie, 335

F.3d 889, 897 (9th Cir. 2003) (quoting Burns v. Reed, 500 U.S. 478, 486–487). As

with any affirmative defense raised at the pleading stage, Judicial Appellees have

the burden of establishing the defense on the face of the complaint “with certitude.”

See Fed.R. Civ.P 8(c)(1); Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324

(1st Cir. 2008). A plaintiff need not plead to anticipate immunity defenses. Gomez

v. Toledo, 446 U.S. 635, 640 (1980). A plaintiff need not plead with specificity.

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).


36

The FAC alleges many acts of each defendant judge in many claims,13 yet

Judicial Appellees fail to identify any claim accusing a judicial act within the

jurisdiction of any court. Appellees fail to carry their formidable burden.

c. Ashelman Stands In Error Under Controlling Supreme Court Authority

Judicial Appellees do not dispute AOB analysis demonstrating that Ashelman

v. Pope, 793 F.2d 1072 (9th Cir. 1986) illegally “expanded” Sparkman, but defend

Ashelman as “binding precedent in this Circuit.” Jud. Brf. p. 43. The defense fails.

In Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) this Court

addressed a strikingly similar question:

A goal of our circuit's decisions, including panel and en banc decisions, must

be to preserve the consistency of circuit law. . . . That objective, however,

must not be pursued at the expense of creating an inconsistency between our

circuit decisions and the reasoning of state or federal authority embodied in a

decision of a court of last resort.

Id. at 900. Miller considered whether the district court or circuit panel was bound

by circuit precedent—Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989)—that was, like

Ashelman, “fundamentally inconsistent with the reasoning” of Supreme Court

authority of Kalina v. Fletcher, 522 U.S. 118, 127-29 (1997), and Antoine v. Byers

& Anderson, Inc., 508 U.S. 429 (1993). Miller at 893. Because Babcock was

“fundamentally inconsistent” with superior and subsequent authority, Miller held

that neither the district court nor circuit panel was bound by circuit precedent. Id.

13 See, e.g., FAC Count 1 (‘Stuart Assault”), Count 2 (inducement claims),

Count 3 (“non-immune” allegations at ER 177, Claim 3.4, 3.5, 3.6), Count 4 (“Nesthus Obstruction of Justice”), Count 6 (supervisory claims), Count 9 (“non-immune” allegations at ER 206, 254, 257, 261-264), Count 10, Count 11 (Wohlfeil/Schall in “Doyne Terrorism”), and all racketeering counts.


37

An even stronger case for release from Ashelman’s several errors is present.

Ashelman’s broad grant of immunity is starkly inconsistent with Rehberg v. Paulk,,

132 S.Ct. 1497 (2012) and decades of prior controlling Supreme Court authority

repeatedly admonishing that the “freewheeling” policy analysis contained in

Ashelman is error. See analysis at AOB p. 51-55.

Appellees also persist in resurrecting Ashelman’s adoption of McAlester’s

“encounter with a judge,” “precise act” and “act itself” debris.14 Jud. Brf. p. 42, 45,

48. The concepts did not survive Sparkman. “[A]s the language in Stump indicates,

the relevant inquiry is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’”

Mireles v. Waco, 502 U.S. 9, 13 (1991). See also al-Kidd v. Ashcroft, 580 F.3d 949,

960 (9th Cir. 2009) rev'd on other grounds, 131 S. Ct. 2074 (2011). Immunity turns

on function, not act or actor. AOB p. 52.

Ashelman’s “ultimate act” is also “fundamentally inconsistent” with superior

and subsequent authority. The term originated in Ashelman at 1075 despite

“fundamental inconsistency” with Pierson, Sparkman, and Rehberg. It is also

inconsistent with this Court’s decisions in Rankin, Beard, Star v. Baca, and other

authorities including Wallace v. Powell and cases cited on therein (Doc. No. 163).

See AOB 56-61.

“Ultimate act” is also inconsistent with Dennis v. Sparks, 449 U.S. 24 (1980)

which held that private parties conspiring with a judge do not enjoy a “derivative

immunity” from the judge even if the judge is immune. Id. at 29. Sparks does not

support immunity for inchoate conspiracy “setting in motion” deprivation because

the Supreme Court was not presented with the question. Plaintiffs appear not to have

targeted Judge Carillo, who was by then in prison, likely judgment-proof, and thus

useless in responding to a money judgment. See Sparks v. Duval Cnty. Ranch Co.,

14 Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981).


38

588 F.2d 124, 125 (5th Cir.) on reh'g, 604 F.2d 976 (5th Cir. 1979) aff'd sub nom.

Dennis v. Sparks, 449 U.S. 24 (1980). If Judge Carillo were still sitting—backed by

an indemnity agreement—plaintiffs surely would have pled their case differently. If

so, under Pierson and Sparkman Carillo’s immunity for the inchoate conspiracy

must be analyzed separately. See AOB 56-61. See also Sparkman v. McFarlin, 601

F.2d at 264-68 (Sprecher, J., concurring); Lopez v. Vanderwater, 620 F.2d 1229,

1237 (7th Cir. 1980).

The Fifth Circuit en banc decision in Sparks v. Duval Cnty. Ranch Co., 604

F.2d 976 (5th Cir. 1979) recognized that the “expansion” of Justice White’s test

would be error: “The rule is a harsh one, laden with potential for unredressed wrong.

As such, its scope should not be extended beyond that necessary to preserve the

judge's independence of mind and judgment . . .” Id. at 980.

Neither the district court nor a panel of this Court is bound by Ashelman’s

several “fundamentally inconsistent” errors.

d. Bradley Does Not Support “Ultimate Act”

In Bradley, Justice Field described his fear that a vindictive plaintiff could

easily defeat immunity merely by “ascribing” an allegation of malicious intent to a

judicial act, thereby forcing a judge to stand trial. “Few persons sufficiently irritated

to institute an action against a judge for his judicial acts would hesitate to ascribe

any character to the acts which would be essential to the maintenance of the action.”

Bradley at 348.15

15 Ironically Justice Field’s rationale reveals profound distrust of the

institution he comprises. Conceiving a more disturbing “no confidence” vote is impossible. Field’s contemporaries were not so jaded. “I cannot bring myself to believe that officers in command would hesitate to give orders which a sense of duty required . . . from any idle apprehension of being harassed by vexatious actions." Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 108 (1869) (Cockburn, C.J., dissenting); Pulliam at 529-544; See also Pierson at 565 (Douglas, J, dissenting); Sparkman at


39

Modernly a judge’s distrust of her institutional colleagues is mitigated by

procedural barriers provided in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and

Pearson v. Callahan, 555 U.S. 223 (2009) which protect against a mere “ascription”

of culpable intent. These are bolstered by Twombly’s plausibility test, and Rule 56

thereafter. 16 Sparkman v. McFarlin, 601 F.2d 261, 267 (7th Cir. 1979). Judges are

certainly not so fragile today. See Pennekamp v. State of Fla., 328 U.S. 331, 349

(1946) (“For this to follow, there must be a judge of less than ordinary fortitude

without friends or support or a powerful and vindictive newspaper bent upon a rule

or ruin policy, and a public unconcerned with or uninterested in the truth or the

protection of their judicial institutions.”); Craig v. Harney, 331 U.S. 367, 376

(1947).

No court has ever denied that absolute immunity inflicts a “monstrous”

injustice on wronged litigants, and taxes the credibility and integrity of judicial

institutions. Gregoire v. Biddle, 177 F. 2d 579, 581 (2nd Cir. 1949); Butz v.

Economou, 438 U.S. 478, 521 (1978). It has been justified as a necessary evil to

protect the “ardor” of judges and prosecutors. Id. While one might reasonably have

concluded that our efforts to assure “justice is done”17 would have been better-

directed toward inculcating ardor through discipline and integrity than by

“expanding” immunity, the issue is moot. Today the monstrosity of immunity is no

longer the “least restrictive means” of promoting the “substantial state interest” of

judicial efficiency. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991).

368 (Stewart, J., Powell, J., dissenting).

16 See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 329-334 (1969) (hereinafter “Yale Note”) (“When courts first formulated the doctrine of judicial immunity, a plaintiff who pleaded properly could force a judicial officer to go to trial. This, of course, is no longer true in the federal courts.”); J. Feinman, R. Cohen, Suing Judges: History and Theory, 31 S. C. L. Rev. 201, 268-269 (1979) (hereinafter “Suing Judges”)

17 Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011)


40

Resolving Justice Field’s “ascribe” concerns is accomplished at the pleading stage,

the heavy tax of absolute immunity no longer necessary, and thus the blunt-force

monstrosity of absolute immunity should be rejected.

e. The District Court Illegally “Expanded” Ashelman Even Further

Appellees do not contest that the district court expanded Ashelman in

utterances at hearings, but seek to blind this Court to the district judge’s commands

and threats. Jud. Brf. p. 46, n. 12. Ignoring the district judge’s utterances at hearing

omits events necessary to adjudicate this appeal.

First, the district judge plainly intended her commands at hearing to have the

force of orders. At hearing on December 19, 2013, the court commanded Stuart to

file an amended complaint within 20 days from the hearing—not the written order.

See Doc. No. 86 (Minute Order after hearing). Stuart had to request the written

order. ER 66 (“All right. I’ll give you a written order, but your amended complaint

is still due 20 days from today.”). At hearing on February 26 Stuart requested a

written order setting forth the court’s decision denying his motion for sanctions. ER

37. The court refused, referencing its disposition of the motion at hearing on

December 19 as dispositive, and entering a minute order on February 26 making the

order effective nunc pro tunc to the oral disposition. ER 38, 16.18 Analyzing the

district court’s findings, commands, and threats at hearings is critical context to

understand the evolution of the FAC at issue.

It is true that the district judge’s written orders were more defensible, yet

comparison of the hearing transcripts with the written orders demonstrates the

district judge herself expected California Coalition to obey her commands at hearing

despite the more reserved written order. For example, the December 19 transcript

18 “Pro se plaintiff requested the court to address 39 Motion for Sanctions

against defendants filed by plaintiff Colbern Stuart. The motion is denied NUNC PRO TUNC to 12/19/2013.”


41

reflects a command that that the FAC “better damn well not be more than 30 pages

long, sir”. AOB at 22; ER 61. The December 23 written order withdrew limitation

on length (ER 46:27-28), yet the July 9 order dismissed citing a failure to comply

with the oral command regarding length: “plaintiffs’ amended complaint . . . is even

longer than the original . . . . “ ER 10. At hearing on December 19, 2013, the district

judge commanded to include “plausible facts” and “non-frivolous argument” in

anticipation of affirmative defenses (AOB 25-27; ER 46, 57, 62). California

Coalition complied (AOB 23-27), yet the July dismissal with prejudice (ER 6-12)

criticized “argument” and “plausible facts” detail pled under command: “plaintiffs’

amended complaint remains unmanageable, argumentative, confusing, and

frequently incomprehensible.” ER 10.

Most importantly, even though the court’s several threats to impose sanctions

at both hearings did not find their way into the written orders (compare ER 38, 59-

60 with ER 12, 42, 49), the district judge took her commands at hearing very

seriously—the July dismissal reveals she was contemplating not only sanctions, but

a sua sponte citation for contempt against Appellants’ filing the FAC. Few

practitioners are so hearty as to ignore a district judge’s vitriolic threats of sanctions

and contempt posture at hearing simply because the threats did not find their way

into a written order.

Appellants respectfully request this Court consider all utterances of the district

judge as both context and substance of rulings subject to review.

f. Absolute Immunity Does Not Protect “All Rulings and Decisions”

Judicial Appellees offer this Court a demonstrably inaccurate scope of

immunity extending to all “rulings and decisions” of a judge in “official capacity.”

Jud. Brf. p. 47. Appellees’ suggested scope was not adopted in the district court’s


42

December 23 order (ER 48), is inconsistent with Sparkman (AOB 52),19 and refuted

by multiple authorities denying immunity for “rulings” or “decisions” of a judge in

“official capacity” which are not “judicial acts” or are in excess of jurisdiction. AOB

p. 52-53.

g. County Judges Are Subject to Prospective Relief

Judicial Appellees assert this Court’s decision in Moore v. Brewster, 96 F.3d

1240 (9th Cir. 1996), extends immunity in their favor against “actions for

declaratory, injunctive and other equitable relief.” Jud. Brf. p. 41. Correctly stated,

Moore stands for the exact opposite proposition:

The judicial or quasi-judicial immunity available to federal officers is not

limited to immunity from damages, but extends to actions for declaratory,

injunctive and other equitable relief. Cf. Pulliam v. Allen (state officials enjoy

judicial or quasi-judicial immunity from damages only).

Moore at 1243-44 (internal citations omitted) (emphasis added). The longstanding

rule for state and local officials under Pulliam is that “judicial immunity is not a bar

to prospective injunctive relief.” Pulliam v. Allen, 466 U.S. 522 at 541-42 (1984).

h. Conclusion: Ashelman and the District Court Should be Reversed

I answer it is better to invade the judicial power of the States than permit it to

invade, strike down, and destroy the civil rights of citizens. A judicial power

perverted to such uses should be speedily invaded.

Remarks of Representative Lawrence (House sponsor of the Civil Rights Act of

1866), Cong. Globe, 39th Cong., 1st Sess. 1837 (1866).

Ashelman has stood in error for 28 years. In error it has deprived scores of

westerners remedy for intentional criminal wrongdoing. In the backwaters of county

Family Courts Ashelman’s “expansion” over Congress has “expanded” the $50

19 Justice White’s two factor test in Sparkman wisely eliminated the

ambiguous term “official capacity” from immunity discourse.


43

billion divorce industry over of a vulnerable core of our communities—families in

crisis—whose dishonest representatives have through schemes described in the FAC

defrauded, extorted, and blockaded access to federal remedies and institutions the

primary purpose of which is to prevent exactly such “expansion.” Ashelman and the

despotic exploitation it fosters must end today.

Appellants respectfully request this Court reverse the district court’s

interlocutory orders, utterances, and final orders, and shrink Ashelman to its well-

deserved grave.

3. Family Court Judges Cannot Identify an Accused Function that is Immune

No appellee refutes the fundamental truth that the 42nd Congress—and every

one before or since20—is forbidden to immunize most Family Court function. U.S.

Const. Amend. 1; McGowan v. State of Md., 366 U.S. 420, 443 (1961); AOB §

VI.D.4. Judicial Appellees cite three twentieth century cases, asserting “It is well-

established that judicial immunity applies to judges in divorce proceedings”: Duvall

v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001), Arnold v. Bostick, 339 F.2d 879,

880-81 (9th Cir. 1964), and Meyers v. Contra Costa County Dept. of Soc. Servs., 812

F.2d 1154, 1158-59 (9th Cir. 1986). Jud. Brf. p. 49. These support nothing close to

a “well-established” tradition at 1871 common law extending immunity to Family

Court functions accused in the FAC.

In Duvall this Court applied the “four-factor” test from McAlester

(inconsistent with Sparkman (See AOB 51-53)) to immunize a judge for failing to

accommodate plaintiff’s hearing disability at trial. Plaintiff argued denial of ADA

accommodation in the courtroom was an “administrative” act. This Court disagreed,

20 Including the California Legislature: “The Legislature shall make no law

respecting an establishment of religion.” Cal. Const. art. I, § 4; Cory v. Cory, 70 Cal. App. 2d 563, 569, (1945) (holding free exercise forbade divorce from considering “unpatriotic” religious beliefs in custody determination.).


44

and found absolute immunity. Id. Duvall did not analyze 1871 common law or any

function specific to a divorce tribunal.

In Arnold this Court found immunity for a claim that the judge issued an

illegal contempt citation against plaintiff for violating an order excluding the

plaintiff from his family home. Citing only to Bradley, this Court found the judge

immune for the contempt function—the court did not analyze immunity for the

underlying exclusion order. Arnold at 880. Arnold cited Bradley’s “freewheeling”

policy language—not 1871 common law—and is thus error. Malley at 352.

Meyers did not consider judicial immunity of a divorce judge, but

prosecutorial immunity of social workers in initiating a dependency proceeding, and

quasi-judicial immunity of court employees performing a statutorily-mandated

“conciliation session” with custody litigants. Meyers at 1158-59. This Court found

the Family Conciliation Court “counselors” were entitled to a qualified quasi-

judicial immunity—limited in scope to acts specifically “authorized by statute.” Id.

at 1159.

Meyers did not address the immunity of a judge, and did not analyze 1871

common to identify an analogue for the “conciliation session” function. If this Court

were to conduct that historical inquiry for Appellees asserting quasi-judicial

immunity—including Doyne, Roddy, and others—it will find only a qualified

immunity. See Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., Thomas, J.,

concurring) (“When public officials made discretionary policy decisions that did not

involve actual adjudication, they were protected by “quasi-judicial” immunity,

which could be defeated by a showing of malice, and hence was more akin to what

we now call ‘qualified,’ rather than absolute, immunity.”); Burns v. Reed, 500 U.S.

478, 500 (1991) (Scalia, J., concurring in judgment in part and dissenting in part).

Even qualified immunity has been doubted. See Hoffman v. Harris, 511 U.S. 1060

(1994) (Thomas, J., dissenting) (“This all assumes, of course, that “social workers”


45

(at least as we now understand the term) even existed in 1871”); Antoine v. Byers

& Anderson, Inc., 508 U.S. 429 (1993) (denying court reporter absolute immunity

because court reporters did not appear until the late 19th century).

Meyers supports California Coalition’s assertion that family court judges

exercise specific jurisdiction, and therefore if they have any immunity, it is narrow—

i.e., qualified—limited to acts “within” the narrow jurisdiction of their courts, not

done “maliciously or corruptly.” See Kalina, Burns, supra.21

Further, like Arnold, Meyers relied on Ashelman’s erroneous “freewheeling”

policy holding and the four-factor test from McAlester which was error after

Sparkman. AOB p. 51-54.

Finally, all three cases draw on authority no older than Bradley, in which

Justice Field originated policy in 1872 that could not have been in the 42nd

Congress’ mind with the April, 1871 passage of the Act, and are thus irrelevant. See

§ IV.D, infra.

D. Like Ashelman, Pierson Was an Illegal Incursion into Congressional

Authority

Judicial Appellees incorrectly claim that Pierson is binding precedent on the

issue presented by California Coalition—whether the Constitution’s vesting of only

judicial power in the judiciary under Article III, and reservation of legislative power

to Congress under Article I, prohibits federal courts from narrowing the

unambiguous face and clearly-recorded intent of duly-enacted legislation. Appellees

21 The Meyers plaintiffs did not allege the social workers acted “maliciously

or corruptly”, but only that they disobeyed a judge’s instructions. Id. If the Meyers plaintiffs had made an allegation of corruption or malice, California Coalition submits this Court could not—under any relevant authority—have justified extending immunity to the social workers or court employees. See Burns v. Reed, 500 U.S. 478, 486–487 (“The presumption is that qualified rather than absolute immunity is sufficient . . . .”).


46

do not dispute that this issue was not presented or decided in Bradley, Pierson or

any of its progeny. This Court is thus presented with an issue of first impression.

As a case of first impression this Court is not bound by Pierson or its progeny, but

may consider those decisions as well as out-of-circuit decisions, treatises, or

academic journals as persuasive. Hart v. Massanari, 266 F.3d 1155, 1169-73 (9th

Cir. 2001).

1. United States Courts Exercise Limited Jurisdiction

Federal courts have no more power than that derived from the Constitution or

Congress: “If congress has given the power to this court, we possess it, not otherwise

. . . .” Turner v. Bank of North America, 4 U.S. 8, 10 n.1(a) (1799). “The

Congressional power to ordain and establish inferior courts includes the power ‘of

investing them with jurisdiction either limited, concurrent, or exclusive, and of

withholding jurisdiction from them in the exact degrees and character which to

Congress may seem proper for the public good.” Lockerty v. Phillips, 319 U.S. 182,

187 (1943) (citing Cary v. Curtis, 44 U.S. 236, 245 (1845); “For I agree there is no

liberty, if the power of judging be not separated from the legislative and executive

powers.” The Federalist No. 78 (Alexander Hamilton) (1788). As recently as 2014

the Supreme Court rejected circuit decisions narrowing a statute’s unambiguous

language and discernable congressional intent. Lexmark Int'l, Inc. v. Static Control

Components, Inc., 134 S.Ct. 1377, 1388 (2014) (reversing a Sixth Circuit decision

relying on a Second Circuit decision narrowing Lanham Act standing, and also

rejecting narrowing constructions from the Third, Fifth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits). This Court has followed. See Tourgeman v. Collins

Fin. Servs., Inc., 755 F.3d 1109, 1117 (9th Cir. 2014), as amended on denial of reh'g

and reh'g en banc (Oct. 31, 2014). See also United States v. Roach, 745 F.2d 1252,

1253 (9th Cir. 1984) (“We will not go beyond the face of the statute to search for

“Congressional intent” when that intent is obvious from the language of the act.”).


47

Jurisdiction defects may be raised by a court or parties at any time—even

initially on appeal. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); Galvez v.

Kuhn, 933 F.2d 773, 775 n. 4 (9th Cir. 1991); Detabali v. St. Luke’s Hosp., 482 F.3d

1199, 1202 (9th Cir. 2007).

2. Pierson is Not On Point

Pierson appears to have overlooked the fundamental question of its

jurisdiction. Other decisions addressing the question have consistently determined

that United States courts lack authority to construe Section 1983. See Picking v.

Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) (“But the policy involved is for

Congress and not for the courts.”); Monroe v. Pape, 365 U.S. 167 (1961); Pulliam,

supra; Owen, supra. See AOB at 54-55. Picking’s jurisdiction truism has never

been—and could never be—controverted in any United States court. 22

There being no binding precedent on the non-waivable issue of jurisdiction,

this Court is—if at all—bound to the unambiguous language of the statute, clearly-

expressed intent of Congress, holdings and reasoning in superior authority including

Monell, Pulliam, Owen, Kalina,23 and incontrovertible out-of-circuit authority

directly on point in Picking to decide the jurisdiction issue in the first instance in this

Circuit.

3. Congress Intended to Abrogate Judicial Immunity

The Supreme Court’s twentieth century condemnation of “freewheeling”

immunity “policy” originating in Malley v. Briggs, 475 U.S. 335 (1986) is the honest

half of its absolute immunity jurisprudence. “We reemphasize that our role is to

22 Cf. Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966). Bauers rejected

Picking’s immunity holding because it preceded Tenney v. Brandhove. Tenney examined legislative speech privilege and is inapposite to Picking’s separate analysis of jurisdiction. See IV.D.3 infra. Picking’s observation of Article III jurisdiction is incontrovertible absent constitutional amendment.

23 And even more forceful dissents. See AOB 50-51.


48

interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy

choice, and that we are guided in interpreting Congress' intent by the common-law

tradition.” Id. at 342. Under Malley’s command we examine only congressional

intent.

The other half has found an absolute immunity in the unambiguous statute

because—it is said—“The legislative record gives no clear indication that Congress

meant to abolish wholesale all common-law immunities . . . . The immunity of

judges for acts within the judicial role is equally well established [as the speech and

debate privilege], and we presume that Congress would have specifically so

provided had it wished to abolish the doctrine.” Pierson v. Ray, 386 U.S. 547, 554-

555 (1967). The “presumption” is as worthy as any speculation. It overlooks the

most obvious evidence of congressional intent—the unambiguous language of the

statute itself. Moreover, actual analysis of the congressional record, and history of

judicial immunity reveals Chief Justice Warren’s presumption is simply wrong.

a. Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial Immunity

In Pierson Chief Justice Warren “presumed” that “the immunity of judges”

was “equally well established” as the legislative privilege. Remarkably, in

presuming, he failed to conduct any analysis of the common law of judicial

immunity—citing only to Bradley’s (post-Civil Rights Act) holding and Scott v.

Stansfield, 3 Law Reports, Exchequer, 220.24 Pierson at 554. Chief Justice

Warren’s analysis went no deeper. Dissenting, Justice Douglas did go deeper,

supporting his forceful conclusion: “The Court's ruling is not justified by the

admitted need for a vigorous and independent judiciary, is not commanded by the

24 Analyzed in Bradley at n. 16. “[A] judge of a county court was sued for

slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant.”


49

common-law doctrine of judicial immunity, and does not follow inexorably from

our prior decisions.” Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J.,

dissenting).

Instead of analyzing judicial immunity, Justice Warren adopted analysis of

legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney

Justice Frankfurter considered whether a California legislative committee

conducting a contempt proceeding against a man circulating a flyer protesting the

committee was immune from an action under Section 1983. Id. at 377.25 The

question was whether a “speech or debate” privilege could be extended to a

lawmaker’s behavior at a contempt hearing. Id.

Justice Frankfurter traced the history of English common law preserving

legislative privilege as derivative of liberty—an extension of the voters’ freedom of

speech and conscience. Id. at 372-73. He aligned the privilege with the federal

“speech or debate” analog in the United States Constitution at Article I, Sec. 6, cl.

1.26 He presumed—analyzing no legislative history—that the 42nd Congress would

25 This Court found—correctly—no privilege. Brandhove v. Tenney, 183 F.2d

121, 124 (9th Cir. 1950). 26 That privilege is narrow: “The Senators and Representatives . . . shall in all

Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The privilege is against arrest—not civil liability—does not extend to felonies or treason, or “breach of the peace”— a misdemeanor. Arrest outside of “Session” is permitted, and members maybe “questioned” for activity other than “speech or debate.” Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917). Even so limited Jefferson was fearful of the power it gave legislators. Tenney at 375. Hamilton was not so fearful of “the least dangerous branch”—because it exercised no similar liberty. The Federalist No. 78 (Alexander Hamilton) (1788).


50

not have intended to limit legislative privilege in enacting the 1871 Civil Rights Act

because Congress was itself a “staunch advocate of legislative freedom.” Id. at 376

(emphasis added).

Tenney extended the speech immunity to the contempt function because

legislators are directly-elected and immediately accountable to voters. Id. at 378.

Tenney also held the narrow immunity was lost if “there was a usurpation of

functions exclusively vested in the Judiciary or the Executive.” Id.27

b. Judicial Immunity is the Opposite of Legislative Privilege—Judges Are Sovereigns Possessing Not “Rights” but Delegated Authority

Judicial authority and legislative freedom are night and day. Judges exercise

jurisdiction as sovereigns—not liberties from sovereigns. While judges have all the

rights of any citizen qua a citizen, a judge qua judge possesses no rights. “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).

There is no need for a judge to express opinions, experiences, or desires of her own

or those she represents to create law—she is given law. Other than necessary for

faithful execution of the law, a judge’s “freedom of conscience” is irrelevant to

judicial function—relevant “conscience” is given in the form of law that has matured

through free debate elsewhere. Judges do not function as a body, and (should) have

no one to “debate.” The Constitution does not extend a speech and debate privilege

to the judiciary because courts are not empowered to speak or debate. The function

27 Dissenting in Tenney, Justice Douglas observed that “No other public

official has complete immunity for his actions”—including of course judges. Tenney at 382 (Douglas, J., dissenting). “I see no reason why any officer of government should be higher than the Constitution from which all rights and privileges of an office obtain.” Id.


51

of a judge is to adjudicate—apply the given law to properly-admitted facts. There

is no need to protect a judge’s “speech” other than to preserve the judge’s ability to

pronounce adjudication—merely a “substantial state interest.” Gentile v. State Bar

of Nevada, 501 U.S. 1030, 1074 (1991). Judges are not representatives of voters,

but independent of electoral will, passion, and accountability.

The long history of preservation of legislative debate—a fundamental

liberty—is absent from the history of judicial immunity. There being no similar

“firmly-rooted tradition” of judicial speech liberty in 1871, there is no reason to

“presume” that the 1871 Congress would have seen need to exclude a tradition that

has never existed. Pierson’s adoption of Tenney was error.

c. Congress Expressly Intended to Abrogate Judicial Immunity

Nor can Chief Justice Warren’s “presumption” withstand the incontrovertible

record—The 1871 Congress repeatedly expressed intent that the Civil Rights Act

would abrogate judicial immunity. Congress adopted the language of Section 1983

from its criminal analog—the 1866 Civil Rights Act, today codified at 18 U.S.C. §

242. Monroe v. Pape, 365 U.S. 167 (1961).28 Section 1983 was introduced by Ohio

Representative Shellabarger, who explained his bill on the House floor by

referencing Section 2 of the 1866 Act: “that section provides a criminal proceeding

in identically the same case as this one provides a civil remedy for . . . ”29 The Acts

thus “must be construed as in pari materia”—any construction of the 1871 Act must

admit congressional intent in enacting the 1866 Act. Picking v. Pennsylvania R.R.,

151 F.2d 240 (3rd Cir. 1945).

On that record it is incontrovertible that the 42nd Congress affirmatively

rejected common law judicial immunity.

28 See also Yale Note at 327-328. 29 Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note at 327.


52

I answer it is better to invade the judicial power of the States than permit it to

invade, strike down, and destroy the civil rights of citizens. A judicial power

perverted to such uses should be speedily invaded.

Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative

Lawrence). The 1866 Act was vetoed by President Johnson because it abrogated

common law judicial immunity.30 In the fight to defeat the veto, Senate Judiciary

Committee Chairman Trumbull expressed revulsion at the entire concept of judicial

immunity: “It is the very doctrine out of which the rebellion was hatched.”31

Section 1 of the 1871 Act (now Section 1983) passed rapidly through

Congress because debate wasn’t necessary—Congress recognized Section 1 as

merely “adding” a civil remedy to the 1866 Act. Debate instead focused on section

2 of the bill (modernly Section 1985) because of concerns over federalism and

regulation of private behavior. Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).

The recorded debate demonstrates unequivocally that Congress intended to

abrogate common law judicial immunity:

[T]he decisions of the county judges, who are made little kings, with almost

despotic powers to carry out the demands of the legislature which elected

them-powers which, almost without exception, have been exercised against

Republicans without regard to law or justice, make up a catalogue of wrongs,

outrageous violations, and evasions of the spirit of the new constitution,

unscrupulous malignity and partisan hate never paralleled in the history of

parties in this country or any other.

30 Yale Note at 327. 31 Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of Senator

Trumbull); Yale Note at 328.


53

Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks of Representative Platt).

What is to be the case of a judge? . . . Is that State judge to be taken from his

bench? Is he to be liable in an action? ... It is the language of the bill: for there

is no limitation whatsoever on the terms that are employed, and they are as

comprehensive as can be used.

Id. (remarks of Senator Thurman).

“[T]he judge of a State court, though acting under oath of office, is made liable

to a suit in the Federal Court and subject to damages for his decision against

a suitor, however honest and conscientious that decision may be . . .”

Id. (remarks of Representative Lewis). Representative Arthur recognized the law

would be a drastic reversal of common law immunity:

Hitherto, in all the history of this country and of England, no judge or court

has been held liable, civilly or criminally, for judicial acts .... Willfulness and

corruption in error alone created a liability . . . .Under the provisions of this

section every judge in the State court. . . will enter upon and pursue the call

of official duty with the sword of Damocles suspended over him . . .”

Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366.32

32 See also Yale Note at 328 and references to additional consistent comments

in n. 38. “On three occasions during the debates, legislators explicitly stated that


54

Courts considering parallel questions have deferred to this vivid record. See,

e.g., Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) (“But the privilege

as we have stated was a rule of the common law. Congress possessed the power to

wipe it out. We think that the conclusion is irresistible that Congress by enacting the

Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated

by that act and in fact did so . . . . The statute must be deemed to include members

of the state judiciary acting in official capacity.”); Monell v. Dep't of Soc. Servs. of

City of New York, 436 U.S. 658, 665 (1978); Owen v. City of Independence, Mo.,

445 U.S. 622, 643 (1980); Pulliam v. Allen, 466 U.S. 522, 543 (1984).

Far from an intent to incorporate common law judicial immunity, Congress in

passing both Acts specifically intended to eliminate it as the source of the

monumental evil of state-sponsored oppression jeopardizing our nation’s existence

by precipitating civil warfare.33

judges would be liable under the [1871] Act. No one denied the statements.” “In sum, the question of congressional intent seems relatively clear: there was no universal acceptance of the broad English immunity rule in 1871, and the only legislative history available supports the proposition that Congress intended Section 1983 to cover judges.” Yale Note at 328. Yale Note’s 1969 author left open the door that “the legislative history does not preclude entirely the Court's construction of the statute if the policy reasons for judicial immunity are sufficiently persuasive.” That “policy reasons” door was closed eleven years later in Malley.

33 Congress’ intent to hold judges accountable is recorded as recently as 1979 by the 96th Congress:

[Section 1983] is an essential element of an extraordinary series of congressional enactments that transformed the relationship between the Federal Government and its constituent parts. [T]he very purpose of the 1983 was to interpose the Federal courts between the States and the people, as guardians of the people's Federal rights—to protect the people from unconstitutional action under color of State law, whether that action be executive, legislative, or judicial.


55

d. Congress Could Not Have Intended Bradley’s Immunity “Policy”

Bradley was decided in 1872—a year after Congress passed Section 1983.

Congress could not have had it in mind while debating Section 1983. It is thus

irrelevant in analysis under Rehberg and Malley’s command. Neither are twentieth

century “expansions” of Bradley relevant. E.g., Pierson, Sparkman, Mireles.

Justice Field’s articulation of policy in Bradley was innovative—not

descriptive.34 Bradley “expanded” Randall v. Brigham, 74 U.S. 523 (1868)35—the

first federal case to consider absolute judicial immunity. Every authority cited in

Randall is from an English autocracy our nation fought wars to become independent

of.36 See Randall n. 14.37

Justice Field’s 1868 statement of monarchical of immunity for superior judges

was:

Statement of David A. Clarke, Chairperson, Committee on Judiciary, Government of the District of Columbia on the Act of Dec. 29, 1979, 93 Stat. 1284, PL 170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).

34 “Certainly, no broad rule of immunity existed prior to Bradley. For most of the history of the common law, judges had only a very limited immunity.” Suing Judges at 256; Yale Note at 323-327 (“[J]udicial immunity was not a universal doctrine.”).

35 Justice Field’s doctrinal epiphany From Randall to Bradley is well-documented. See C. Swisher, S. Field, Craftsman of the Law (1930); G. White, The American Judicial Tradition at 84-108 (1976); Graham, Justice Field and the Fourteenth Amendment, 52 YALE L.J. 851 (1943); McCurdy, Justice Field and the Jurisprudence of Government-Business Relations 61 J. AM. HIST. 970 (1975); Westin, Stephen Field and the Headnote to O'Neill v. Vermont, 67 YALE L.J. 363 (1958); Suing Judges at 243-249, 254-256.

36 “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” Thomas Jefferson to Charles Hammond, 1821

37 See Suing Judges at 224-43 (analysis of pre-Bradley primary sources).


56

[Was] the act done a judicial act, done within his jurisdiction? If it was not,

he can claim no immunity or exemption by virtue of his office from liability

as a trespasser; for if he has acted without jurisdiction, he has ceased to be a

judge.

Randall at 531. Inferior judges enjoyed only a qualified immunity. See Kalina v.

Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., Thomas, J., concurring). Justice Field

acknowledged decisions which denied an absolute immunity “where the acts, in

excess of jurisdiction, are done maliciously or corruptly.”38

Field’s qualification was warranted. Analyses of 1871 common law reveal

predominating inconsistency—nothing close to a “firmly-rooted tradition.” Few

American States had considered an immunity rule, and those that did disagreed. Yale

Note at 326-27. “[A]s in England, the lower judges were most subject to suit, and

for many of them the rule was one of liability for extra-jurisdictional acts, malicious

acts, or both.” Id. Justice Field's opinion in Bradley hastened the expansion of

immunity: “[Bradley] was enormously influential in recasting the doctrinal analysis

of state courts, as well as their general approach to problems in this area. By the

early twentieth century, the law had begun to shift from a basic position of liability

to a preference for immunity, although the culmination of the change was very

recent.” Suing Judges at 221 (emphasis added).

Bradley’s innovative policy exhortation—though perhaps persuasive in case

it one day finds its way onto the floor of Congress—cannot inform us of

congressional intent in 1871. Far from controlling, Bradley is the germ of the

38 These cases distinguish between superior judges—which enjoyed a

statutory “cap” on money damages, and judges of limited jurisdiction, justices of the peace, and magistrates—who remained fully liable. Yale Note 325. Justice Field’s characterization of those sporadic decisions was hardly recognition of a “firmly-rooted tradition” of uniform broad immunity. Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000).


57

damnable “freewheeling” policy analysis condemned by the Supreme Court from

Malley through Rehberg.

The only honest conclusion is astounding—yet incontrovertible. Nineteenth

and twentieth century American judges have overstepped constitutional restriction

to usurp powers reserved to the legislature and written for themselves an immunity

far greater even than that of an English judge at common law. California Coalition

submits 1871 common law cannot support any tradition of absolute immunity

satisfying Rehberg and Malley’s command.

4. Conclusion: “If aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here”39

Ashelman’s and Pierson’s disregard of the unambiguous language and

statutory history of the Civil Rights Acts have enabled deprivation of fundamental

rights of vulnerable, unsophisticated United States citizens the statutes were

intended to protect—families and children of moderate means ensnared in

government systems that survive on exploitation and oppression of the unfortunate.

On the foundation of such roguish jurisprudence, Appellees have “expanded”

obscenely profitable business enterprises inside of county courthouses, coopted local

police powers and prosecutors to persecute lawful behavior, and jointly monetized

the evil at their core, heaping deprivation, insult, and state-sponsored exploitation

onto families in crisis.

“What shame a profession of reason today endures.” FAC 594; ER 224.

E. The District Court’s Hostility, Threats, Insults, and Expressed Bias

Was a Deprivation of Impartial Tribunal

Judicial Appellees dispute California Coalition’s assertion that the district

court’s hostility, sua sponte advocacy, insults, and express bias deprived appellants

39 Sparkman at 368 (Stewart, J. dissenting).


58

of due process and impartial tribunal. They cite law analyzing denials of recusal

motions under 28 U.S.C. 1361. Jud. Brf. p. 69. California Coalition did not seek

recusal, but asserts deprivation in support of reversal and prays for remand

instructing relief from Southern District Local Rule 83.3(c)(5) requirement to appear

by local counsel. AOB at 66, 69. “[A] biased decisionmaker [is] constitutionally

unacceptable.” Withrow v. Larkin, 421 U.S. 35, 47 (1975); Hurles v. Ryan, 706 F.3d

1021, 1036 (9th Cir.2013) (“fair trial in a fair tribunal is a basic requirement of due

process”).

Judicial Appellees’ Authority Supports California Coalition

In Litkey plaintiff-appellants claimed the judge demonstrated “impatience,

disregard for the defense and animosity” by admonishing plaintiff’s counsel to

refrain from grandstanding through an irrelevant “political defense.” Liteky v.

United States, 510 U.S. 540, 542 (1994). Plaintiffs did not dispute their crimes, but

argued that they were justified as furtherance of their political agenda to protest the

U.S. government’s involvement in El Salvador. Id. at 543. The district judge

cautioned against using the trial as a “political forum” and instructed to focus on the

material issues at trial. Plaintiffs later moved to recuse, the district judge denied, and

the Eleventh Circuit and Supreme Court affirmed. Id.

The Supreme Court found plaintiff did not identify an “extrajudicial” source

of bias that could improperly influence the judge’s in-court behavior. Id. at 545.

The Court also found that the district judge did not err in refusing to recuse because

the in-trial comments were not “wrongful or inappropriate” “because it was

undeserved, or because it rests upon knowledge that the subject ought not to possess

. . . or because it is excessive in degree . . . .” Id. at 550.

California Coalition asserts that the district judge’s behavior was “wrongful

or inappropriate”—vitriol and intimidating, yet specious, threat of sanction directed

at California Coalition and its retained co-counsel as he attempted to appear causing


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his withdrawal—constituting a California tort causing deprivations of due process

and impartial tribunal in the district court. In Litkey the district judge acted to protect

a legitimate interest—protecting process and court resources. The district judge

below possessed no interest in interfering with California Coalition’s professional

relationships.

Further, unlike Litkey and Pesnell, Appellants allege impartiality arising from

“extrajudicial” factors—the district judge’s common professional community and

personal interests with judicial defendants accused of judicial wrongdoing. See

AOB at 65-66.40

Appellees suggest the district judge was merely expressing “frustration” (Jud.

Brf. p. 70; Bierer Brf. (DktEntry 60) p. 7, 23). The December 19, 2013 transcript of

the initial hearing reflects the district judge was highly engaged the moment she

entered the courtroom. See ER 52-60 (forceful ruling before argument); ER 61-66

(forceful vitriol in instructing to amend; forceful rejection of Stuart’s request for

immediate certification). At hearing on February 26 the district judge characterized

the atmosphere of the December 19 hearing as a “vortex.” ER 26-27.

The record reflects no behavior by any party or counsel to contribute to a

“vortex,” or even “frustration.” To Appellants’ knowledge, parties and counsel have

remained unfailingly polite toward one another and the district court on and off the

record—even joining stipulation when available—despite that some maintain

strongly opposed interests. The district court’s denial of Superior Court’s two

40 See also DktEntry 11-2, pp. 78 (Appellants’ Joint Overlength Opening Brief

(submitted for review with Appellants’ Joint Motion to File Overlength Opening Brief, DktEntry 11-1) in which Appellants asserted: “The district court’s pattern of unusual hostility, was excessive, impartial favoring defendants with whom she shares a professional community, and harmful error.” To comply with this Court’s order (DktEntry 42) denying/granting in part Appellants’ motion (DktEntry 11-1) to exceed type-volume limits, the phrase was eliminated from the shortened Appellants’ Joint Opening Brief (DktEntry 43).


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sanctions motions confirms Appellants have not behaved unprofessionally or in bad

faith. Appellants’ pleadings and papers are meritorious—though no doubt

uncomfortable for many. These circumstances seem incapable of inspiring a

“vortex,” indicating the district judge was motivated by extrajudicial concerns.

Unlike Pesnell, California Coalition does not allege “mere” impatience or

anger, but vitriol and threats of sanction—including citation for contempt—express

bias (“unfortunately . . . ”), repeated sua sponte advocacy, and for committing a tort

depriving California Coalition of necessary representation.

California Coalition respectfully submits that the pattern of behavior,

combined with the extremely uncomfortable consequence of placing California

Coalition in possession of a tort adverse to the district judge, together rises to “such

a high degree of favoritism or antagonism as to make fair judgment impossible”

(Litkey at 555) constituting a deprivation of due process and impartial tribunal

sufficient to justify the modest relief requested.

F. California Coalition Was Entitled to File Motion for Witness

Harassment Restraining Order

Judicial Appellees defend the district court’s refusal to grant leave to seek a

witness harassment restraining order by asserting Superior Court counsel Kristine

Nesthus’s threats and coordination of California Highway Patrol detectives and San

Diego County Sheriff’s deputies41 was legal under State law and a Southern District

general order. Jud. Brf. (DktEntry 51-1) p. 56. Appellees concede that accurately

41 Including California Coalition members or affiliates who posted unredacted

copies of the original complaint on the Internet, their internet website hosting service providers, and threatening of California Coalition’s process servers (ER 208-214; Doc. No. 115 (letter to district judge from fearful California Coalition witness), and counsel (Doc. No. Doc. Nos. 114, 129 (sealed oppositions to local counsel Mr. Eric Ching’s motions to withdraw)),


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identifying a personal address is an appropriate means of pleading venue “within a

particular district” yet assert their deployment of teams of state and local law

enforcement was justified because “all that need be alleged” is a vague allegation of

residency within the district. Jud. Brf. p. 56. They do not (and cannot) cite a rule

prohibiting identification of residential address as appropriate means of pleading

civil venue.

Appellees’ naked desire that plaintiffs plead more vaguely obviously cannot

legalize their behavior.

1. General Order 550 Does Not Legalize Threats to Imprison

Nor does local rule. Judicial Appellees misconstrue General Order

550(1)(h)(5), which provides:

Unless otherwise ordered by the court, parties must refrain from including …

5. Home Addresses. In criminal cases, if a home address must be included

only the city42 and state should be listed.

(emphasis added). Judicial Appellees construe this language to prohibit “including

home addresses in all pleadings and documents filed with the district court . . . as a

matter of law.” Jud. Brf. p. 55 (emphasis added).

Appellees’ construction is incorrect. Subsection 5 is limited to “criminal

cases.” While Appellees rightly perceive their behavior as criminal, California

Coalition are civil litigants and may not conduct criminal proceedings. General

Order 550 does not apply, and Judicial Appellees’ action under color of law to

censor, obstruct, and retaliate for Appellants’ filing is illegal.

42 The district court sealed even Appellants’ redacted complaint (Doc. No. 8)

because it “continues to identify the city in which the judges reside.” Doc. No. 9.


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2. Appellants Have Right to Allege Venue

Judicial Appellees incorrectly construe FAC Count 4—the “Nesthus

Obstruction of Justice”—to assert deprivation of only a due process right of access

to courts: “Given that the right to access the courts does not encompass the right to

include judicial officers’ home addresses, Count 4 fails as a matter of law.” Jud.

Brf. p. 55. Count 4 does assert a deprivation of a due process right to access courts,

but also deprivation of speech and substantive due process.43 ER 214-216. These

rights certainly “encompass the right” to plead as required and permitted under Title

28’s venue provisions and the First, Fifth, and Seventh Amendments to the United

States Constitution. See ER 358-372. Judicial Appellees fall far short of

establishing that Count 4 “fails as a matter of law.” Jud. Brf. p. 55.

3. California’s Litigation Privilege is Inapplicable

From footnote 17 Judicial Appellees assert “state law claims . . . are barred

by California’s litigation privilege” citing California Civil Code Section 47. Jud.

Brf. p. 55, n. 17. Apparently Judicial Appellees assert that Superior Court’s general

counsel Kristine Nesthus’ threats and deployment of law enforcement to threaten

imprisonment of Coalition witnesses, members, process servers, and counsel is a

“privileged publication or broadcast” within California Civil Code Section 47. The

suggestion is preposterous.

4. California Government Code 6254.21 is Unconstitutional

Also from a footnote Judicial Appellees assert a defense that California

Government Code § 6254.21 prohibits any person from displaying on the Internet a

judicial officer’s home address.” Jud. Brf. p. 55, n.16.

California Coalition argued in its Ex Parte Application of Leave to File a

Temporary Restraining Order below (Doc. No. 4, ER 364-371) and re-assets now

that this statute is an unconstitutional deprivation of expression because it is (1)

43 These terms are defined in the FAC at ER 144-146.


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content based and (2) does not fall within the several traditional categories of

permitted restriction on the content of speech. United States v. Alvarez, 132 S. Ct.

2537 (2012). Statutes prohibiting speech based on content are presumed invalid.

Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 (2004). Section

6254.21 is content-based because one must look at the content of the speech to

determine if it falls within the statute’s prohibition. Foti v. City of Menlo Park, 146

F.3d 629, 636 (9th Cir. 1998). The statute proscribes reference to the telephone

number and address of “an elected or appointed official.”

Communication containing public official residence and contact is expressive

as relevant to important political rights. An official’s residence identifies voting and

electoral district for eligibility for office, neighborhood relationships, standard of

living, indicates political inclinations relevant to the official’s identity, fitness, and

character. Contact information enables communication to the official of information

and opinions relevant to his or her office. See New York Times Co. v. Sullivan, 376

U.S. 254 (1964) (describing laws prohibiting expression regarding public officials

as “a nullity, as absolute and as palpable as if Congress had ordered us to fall down

and worship a golden image.”); Landmark Communications, Inc. v. Virginia, 435

U.S. 829, 839 (1978) (invalidating law restricting publication of confidential records

of judicial discipline proceedings). Judges have been described as “men of

fortitude” and may be expected to receive and withstand intense public scrutiny and

criticism, including scrutiny of their lifestyles, neighborhoods, and places of abode.

Craig v. Harney, 331 U.S. 367, 376 (1947). Section 6254.21 burdens such activity,

is content-based, and therefore invalid.

The burden of resurrecting section 6254.21 from the presumption of invalidity

rests on the parties asserting it. Alvarez at 2549. Such an achievement seems

dubious.


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Section 6254.21 does not to fall within any of the “historic and traditional

categories of expression long familiar to the bar.” Id. at 2544. The CPRA was

enacted in 1968—long after the ratification of the First Amendment, and of course

could not have been contemplated as an exception by the Constitution’s framers.

Further, the state interests protected by the CPRA are not privacy, but public

access to public records. Section 6250 of the CPRA describes the relevant state

interest:

In enacting this chapter, the Legislature, mindful of the right of individuals to

privacy, finds and declares that access to information concerning the conduct

of the people's business is a fundamental and necessary right of every person

in this state.

In addition, the CPRA proscription against disclosure “on the internet”

appears not to be the “least restrictive means” for protecting the privacy interest

asserted. See Aschcroft at 666. Address and telephone information is available from

numerous sources, including the county registrar of voters, online election campaign

financing forms, ordinary phone books, credit records, campaign financing records,

and many other public sources. Less restrictive means for protecting such

information include the official’s own ability to refuse to disclose such information.

The district court relied in part on Appellees’ assertion of the CPRA in

denying Appellants’ motion for a witness harassment restraining order which is

appealed here (Issue 4, AOB 17, 66), and Appellees appear intent on asserting this

issue “as a matter of law” in defense of Count 4 of the FAC. The CPRA’s validity is

thus at issue in this appeal.

Appellants submit California Government Code § 6254.21 is an invalid

content-based restriction on speech protected under the First and Fourteenth


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Amendments to the United States Constitution, and Article I §§ 2(a) and 26 of the

California Constitution, and as an additional prayer for relief hereby respectfully

request this court adjudge the statute to be invalid.

G. Superior Court’s Two Failed Sanctions Motions Entitles California

Coalition to Counter-Sanctions

Judicial Appellees claim the Superior Court’s two failed motions44 for

sanctions based on the Superior Court’s two failed motions to dismiss was faithful

litigation behavior. Jud. Brf. p. 70-72. Seeking Rule 11 sanctions concurrent with

a motion in order to “leverage” the motion is itself independently sanctionable.

Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987); Rich v. Taser Int'l, Inc., No.

2:09-CV-02450-ECR, 2012 WL 3155137, at *3 (D. Nev. Aug. 2, 2012) (“A Rule 11

motion is not a proper vehicle for arguing the merits of a case . . . Plaintiffs will

therefore be awarded the reasonable expenses of defending such a motion. . . .”).

Requesting sanctions is per se inappropriate where there exists legitimate

controversy. Committee Notes on Amendments to Federal Rules of Civil Procedure

146 FRD 401, 590 (1993). Superior Court fails to overcome Gaiardo’s presumption

that its “leverage” Rule 11 motion is a “hardball” tactic. See Gaiardo at 485.

Superior Court argues it did not withdraw grounds on which the sanctions

motion was brought. Jud. Brf. p. 72. This is false. Superior Court withdrew

grounds: a (Mr. Webb’s cured pro hac vice status); b (Lexevia’s cured capacity

issue); d (filing a “frivolous 1,300 page complaint” (a “length” issue refused by the

district court; Appellees later conceded the complaint was only 175 pages); f

(Superior Court non-judicial administrator Roddy seeking a quasi-judicial

44 Superior Court sought sanctions asserting California Coalition had

“absolutely no chance of success under the existing precedents, and []no reasonable argument can be advanced to extend, modify or reverse the law as it stands[,]” Judicial Appellees SER 97-99.


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immunity); g (allegation of Stuart assault lacked “evidentiary and legal support”).

Compare Judicial Appellees SER 97-99 (notice of original Rule 11); with Doc. No.

139 at 2-3 (Notice of Superior Court’s Omnibus Supplemental Memorandum); with

Doc. No. 160-1 (Memorandum in Support of Superior Court and Administrative

Office of the Courts (second) Motion for Sanctions). Superior Court also falsely

claims it prevailed on the initial motion to seeking only dismissal “with prejudice”

and “without leave to amend.” Doc. No. 21 p. 9:19. At hearing the district court

identified claims having merit but possibly defensible—a far cry from “frivolous.”

See AOB p. 40-41. Stuart requested, and the district court granted “leave to amend

to cure.” Doc. No. 21 p. 42:1. Stuart had offered to stipulate to this result. AOB

67.

Superior Court’s second sanctions motion retreated from its initial assertion

of complete meritlessness filed solely to harass, to an assertion that the “pleading

need not be frivolous as a whole to violate Rule 11(b)” Doc. No. 160-1 p. 7:1-2. The

second sanctions motion was based in part on the improper evidentiary declaration

of Stephen Lucas, which the district court ignored but should have stricken. See

Doc. No. 160-1 at 8-10; AOB 34-35. Though the district court did not convert the

evidentiary Omnibus to a Rule 56 motion, evidentiary declarations submitted in bad

faith are sancitonable. Fed.R. Civ.P. 56(h).

The district court—having five opportunities to analyze Superior Court’s

dozens of briefing pages—declined to grant Superior Court relief it requested on

grounds it asserted, and found the FAC was not “made solely for the purpose of

harassing the defendants or in contempt of the court’s order to file a Rule 8 compliant

pleading.” ER 12.


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Superior court’s Rule 11 motions were based largely on the “other grounds”

arguments Judicial Appellees assert here.45 Should this Court award Appellants any

relief requested, Appellants’ claims should be adjudged as not “totally void of

merit…” and Superior Court’s two sanctions motions based on such grounds should

be adjudged improper “hardball” tactics.

For all of the above reasons Appellants respectfully request an award of

counter-sanctions against the Superior Court.

H. Incorporation/Preservation of Motion for Preliminary Injunction

No Appellee objects to California Coalition’s request to reverse the district

court’s summary denial of California Coalition’s Motion for Preliminary Injunction

Regarding Domestic Violence Restraining Orders (Doc. No. 109) for adjudication

here. See Judgment In a Civil Case (ER 4) and “Order Dismissing Case with

Prejudice, Denying Motion for Preliminary Injunction (ER 6-12). California

Coalition therefore respectfully requests this Court grant the relief as requested in

the Motion for Preliminary Injunction or, in the alternative, permit additional

briefing in this appeal to adjudicate the district court’s summary denial of the motion.

45 See accompanying Motion to Dismiss Untimely Cross-Appeals for “other

grounds” issues; Doc. No. 160-1 at 10-15.


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V. MOTION TO ANSWER “OTHER GROUNDS” BRIEFING AS CROSS APPEAL

Much of Appellees’ briefing is directed to issues not briefed by Appellants’

Joint Opening Brief (DktEntry: 43) because Appellees assert what they characterize

as “other grounds” to achieve dismissal with prejudice, greatly expanding the scope

of issues on appeal. Appellants contend that the “other grounds” are so unrelated

and varied that they are not truly “other grounds,” but untimely cross appeals.

Appellants hereby and by accompanying motion move for permission to file

a separate Response Brief consistent with FRAP 28.1(c)(3). See Motion to Dismiss.


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VI. CONCLUSION

Appellees concede or do not contest most of California Coalition’s Opening

Argument, warranting reversal. They instead argue “other grounds” which were not

adjudicated by the district court in an irregular cross-appeal. Those grounds also

fail, but this court need not reach that determination as Appellees’ concessions and

meritless arguments are alone sufficient to reverse and remand as requested in

Appellants’ Joint Opening Brief.

As an additional prayer, Appellants respectfully request this Court

determine that California Government Code § 6254.21 is unconstitutional in

violation of the First and Fourteenth Amendments to the United States Constitution,

and Article I §§ 2(a) and 26 of the California Constitution.

Respectfully Submitted,

Dated: February 4, 2015 By: s/

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

Dated: February 4, 2015 By: s/ Dean Browning Webb, Esq. Law Offices of Dean Browning Webb Counsel for Plaintiff-Appellant California Coalition for Families and Children, PBC

Dean Browning Webb

Colbern C. Stuart III


CERTIFICATE OF COMPLIANCE

The undersigned certifies under Rule 32(a)(7)(C) of the Federal Rules of

Appellate Procedure and Ninth Circuit Rule 32-1 and 28-4, that the attached reply

brief is proportionally spaced, has a type face of 14 points or more and, pursuant to

the word-count feature of the word processing program used to prepare this brief,

contains 19,055 words, exclusive of the matters that may be omitted under FRAP

32(a)(7)(B)(iii). To comply with FRAP 32(a)(7)(B)(ii) (“A reply brief is

acceptable if it contains no more than half of the type volume specified in

32(a)(7)(B)(i)”) and to permit a single joint reply California Coalition limits type

volume of this consolidated reply to one-half the 50,000 total words in answering

briefs, consistent with the type-volume limit proportions of FRAP 32(a)(7)(B)(i)-

(iii). By separate motion, California Coalition has moved this court for permission

to file this brief in excess of type-volume limits. See accompanying Motion To

Dismiss.

Dated: February 4, 2015 By: s/ Colbern C. Stuart, III President, California Coalition for Families and Children, PBC, in Pro Se

Dated: February 4, 2015 By: s/ Dean Browning Webb, Esq. Counsel for Plaintiff-Appellant California Coalition for Families and Children, PBC


Dean Browning Webb


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on February 4, 2015 per Federal Rules of Appellate

Procedure Ninth Circuit Rule 25-5(g).

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system. Any other

counsel of record will be served by facsimile transmission and/or first class mail

this 4th day of February, 2015.

By: s/ Colbern C. Stuart, III President, California Coalition For Families and Children, PBC, in Pro Se



119 appellants' joint consolidated reply brief

Documents

fac dktentry

stuart assault

extortion dktentry

judge dktentry

circuit california coalition

pbc case

harassing judges dktentry

defendantsappellees