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JAMES B. GILPIN, Bar No. 151466 James.Gilpin@bbklaw.com MATTHEW L. GREEN, Bar No. 227904 Matthew.Green@bbklaw.com BEST BEST & KRIEGER LLP 655 W. Broadway, 15th Floor San Diego, CA 92101 Telephone: (619) 525-1300 Facsimile: (619) 233-6118 Attorneys for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO (erroneously sued as SUPERIOR COURT OF SAN DIEGO COUNTY); HON. ROBERT J. TRENTACOSTA, Presiding Judge of the Superior Court (erroneously sued as Robert J. Trentacostsa); MICHAEL M. RODDY, Executive Officer of the Superior Court; HON. LISA SCHALL, Judge of the Superior Court; HON. LORNA A. ALKSNE, Judge of the Superior Court; HON. CHRISTINE K. GOLDSMITH, Judge of the Superior Court; HON. JEANNIE LOWE, Commissioner of the Superior Court (Ret.); HON. WILLIAM H. McADAM, JR., Judge of the Superior Court; HON. EDLENE C. McKENZIE, Commissioner of the Superior Court; and HON. JOEL R. WOHLFEIL, Judge of the Superior Court UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., Plaintiffs, v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., Defendants.

Case No. 13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo OPPOSITION TO MOTION TO STRIKE MATTER SUBMITTED IN SUPPORT OF DEFENDANTS MOTION TO DISMISS Date: Time: Courtroom: December 19, 2013 3:30 p.m. 4C

[NO ORAL ARGUMENT UNLESS REQUESTED BY COURT] Complaint Filed: August 20, 2013

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Defendants (1) Superior Court of California, County of San Diego, erroneously sued as Superior Court of San Diego County (Superior Court), (2) the Honorable Robert J. Trentacosta, Presiding Judge of the Superior Court, erroneously sued as Robert J. Trentacostsa, (3) Michael M. Roddy, Executive Officer of the Superior Court, (4) the Honorable Lisa Schall, Judge of the Superior Court, (5) the Honorable Lorna A. Alksne, Judge of the Superior Court, (6) the Honorable Christine K. Goldsmith, Judge of the Superior Court, (7) the Honorable Jeannie Lowe, Commissioner of the Superior Court (Ret.), (8) the Honorable William H. McAdam, Jr., Judge of the Superior Court, (9) the Honorable Edlene C. McKenzie, Commissioner of the Superior Court, and (10) the Honorable Joel R. Wohlfeil, Judge of the Superior Court (collectively, Superior Court Defendants) respectfully submit the following opposition to the motion to strike filed by Plaintiff Colbern C. Stuart (Stuart).
I.

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INTRODUCTION On September 30, 2013, the Superior Court Defendants filed a motion to dismiss the Complaint filed by Stuart, California Coalition for Families and Children (CCFC), and Lexevia, PC (Lexevia), which is scheduled to be heard on December 19, 2013. Stuart thereafter applied ex parte for leave to file a thirtyfive page opposition brief in response to the Superior Court Defendants motion. (Doc. No. 17.) On November 5, 2013, [w]ith some hesitation, the Court granted Stuarts ex parte motion. (Doc. No. 18.) Rather than respond to the motion to dismiss within the extended pages permitted by the Court, Stuart filed both a 34-page opposition and a separate motion to strike matters in the motion to dismiss under Rule 12(f), which includes a supporting memorandum totaling 19 pages in length.1
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(Doc. Nos. 19, 19-1.)

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In addition to these 53 pages of responsive briefing, Stuarts opposition and motion to strike improperly attempt to incorporate arguments set forth in a 105-page, single-space meet
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Namely, Stuart moves to strike the request for judicial notice and declaration of Ms. Nesthus submitted in support of the Superior Court Defendants motion to dismiss.2 (Doc. No. 19 at 2:7-17.) Not only does Stuarts 53 pages of responsive briefing violate the Courts November 5, 2013 Order, but the motion to strike is procedurally flawed and otherwise lacks merit. Rule 12(f) only permits the striking of certain matters in a pleading. Because pleadings do not include motions and other papers, Stuarts use of a motion to strike the Superior Court Defendants moving papers is improper. Moreover, as set forth below, the matters challenged in Stuarts motion are appropriate for consideration in ruling on the Superior Court Defendants motion to dismiss.
II.

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ARGUMENT A. RULE 12(f) DOES NOT PERMIT THE STRIKING OF MOVING PAPERS

Under Federal Rule of Civil Procedure 12(f), [t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f) (emphasis added). Rule 7(a) identifies pleadings as the complaint, answer, and reply, but not motions and other papers. Fed. R. Civ. P. 7(a). It is thus well-settled in the Ninth Circuit that a motion to strike is limited to pleadings. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); United States v. Crisp, 190 F.R.D. 546, 550-51 (E.D. Cal. 1999). Indeed, there is no provision in the Federal Rules of Civil Procedure for a
and confer letter drafted by Stuart. (See, e.g., Doc. No. 19-1 at 10:2-3, 10:9, 10:20-21, 12:28, 14:18.) 2 Stuart also moves to strike certain sections of the Superior Court Defendants memorandum of points and authorities in support of the motion to dismiss, including the sections relating to immunity, noncompliance with Rule 8, and other arguments Stuart believes are immaterial and impertinent. (Doc. No. 19 at 2, 3.) The merits of these grounds for dismissal are set forth in the Superior Court Defendants memorandum of points and authorities and its forthcoming reply brief.
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motion to strike another motion or memoranda. See id. Accordingly, the Court should deny Stuarts motion to strike as procedurally improper. B. THE MATTERS CHALLENGED IN STUARTS MOTION TO STRIKE ARE PROPERLY BEFORE THE COURT

As noted above, Stuart moves to strike certain matters included with the Superior Court Defendants motion to dismiss, particularly the request for judicial notice, (Doc. No. 16-2), and the declaration of Ms. Nesthus, (Doc. No. 16-3). (Doc. No. 19 at 2, 1-2.) Contrary to Stuarts arguments, these matters are properly before the Court on the Superior Court Defendants motion to dismiss. 1. The Court May Take Judicial Notice Of Secretary Of State Corporate Records And State Bar Records.

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The Superior Court Defendants motion to dismiss initially challenges CCFC and Lexevias capacity to sue on the grounds that both corporations are attempting to proceed in propria persona, and that Lexevia is a suspended corporation. (Doc. No. 16 at 1:20-25; Doc. No. 16-1 at 7:1-9:6.) As to the first ground, the Superior Court Defendants request that the Court take judicial notice of state bar records showing that Stuart is not licensed to practice law. (Doc. No. 16-2, Exs. D-H.) As to Lexevias corporate status, the Superior Court Defendants request that the Court take judicial notice of a printout from the California Secretary of States website showing that Lexevia is a suspended corporation. (Doc. No. 16-2, Ex. I.) It is well-settled that courts may consider matters subject to judicial notice when ruling on a Rule 12(b)(6) motion. IC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104 (1991). Under Federal Rule of Evidence 201, courts may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
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Numerous California district courts have held that public documents available from the California Secretary of State are the proper subject of judicial notice on a Rule 12(b)(6) motion on the basis that such matters are not subject to reasonable dispute. (See, e.g., No Cost Conference, Inc. v. Windstream

Communications, Inc., No. 12-CV-1699, 2013 U.S. Dist. LEXIS 54005, at *15 (S.D. Cal. Apr. 16, 2013) (Cureil, J.) (judicial notice of printout from California Secretary of States website); United States ex rel. Graybar Elec. Co. v. Miller/Watts Constr., Inc., 1:06-CV-1521, 2011 U.S. Dist. LEXIS 41306, at *7 (E.D. Cal. Apr. 15, 2011) (judicial notice of Certificate of Status from California Secretary of State); Johnson v. Regents of Univ. of Cal., No. C-09-04727, 2010 U.S. Dist. LEXIS 63963, at *13-14 n.4 (N.D. Cal. Jun. 28, 2010) (judicial notice of Business Entity Detail from the California Secretary of States website). State bar membership and status records are also appropriate matters for judicial notice on a Rule 12(b)(6) motion. Stimac v. Wieking, 785 F. Supp. 2d 847, 849-850 (N.D. Cal. 2011) (citing White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010)). Although Stuart does not dispute the corporate status of CCFC and Lexevia, or his state bar status, Stuart erroneously asserts that such matters are immaterial and impertinent. (Doc. No. 19-1 at 7:5-11, see also Doc. No. 19-1 at 6:3-8.) Contrary to Stuarts assertion, such matters are relevant to show CCFC and Lexevias incapacity to sue, which is a proper basis for a Rule 12(b)(6) motion. For example, in Miller/Watts, a defendant moved to dismiss cross-claims under Rule 12(b)(6) on the ground that the cross-claimant lacked capacity because its corporate status had been suspended. 2011 U.S. Dist. LEXIS 41306, at *3. The district court took judicial notice of the cross-claimants suspended status and dismissed the cross-claims on that basis. Id. at *6-8. Stuarts motion to strike CCFCs and Lexevias corporate records and Stuarts state bar records is therefore without merit. ///
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2.

The Court May Take Judicial Notice Of Court Records From Stuarts Criminal Proceeding.

The remainder of the Superior Court Defendants request for judicial notice consists of two court records relating to the issuance of an arrest warrant in Stuarts criminal proceeding, People v. Stuart, Superior Court of California, County of San Diego, Case No. M104094DV. (Doc. No. 16-2, Exs. A, B.) The two documents consist of (1) a Declaration in Support of Arrest Warrant filed April 6, 2010, in which Deputy City Attorney Emily Garson requests issuance of a warrant for Stuarts arrest, and (2) a court order for Stuarts arrest dated April 14, 2010. (Doc. No. 16-2, Exs. A, B.) Stuart objects to the request for judicial notice of these court records on the same basis as his objections to the corporate and state bar records, namely that they are immaterial or impertinent to any matter properly at issue here. (Doc. No. 191 at 4:24-26.) The arrest warrant, however, relates directly to the so-called Stuart Arrest at the family law seminar on April 15, 2010, which the Complaint identifies as the central subject of this litigation. (Compl. 114.) While Plaintiffs would have this Court believe there was no warrant for Stuarts arrest, (Compl. 145), state court records of which this Court may take judicial notice show there was an outstanding warrant for Stuarts arrest at the time of the so-called Stuart Assault. (See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (recognizing that when ruling on a motion to dismiss, [t]he Court need not [] accept as true allegations that contradict matters properly subject to judicial notice). Given court records reflecting the issuance of an arrest warrant are the proper subject of judicial notice, (see, e.g., Gressett v. Contra Costa County, No. C12-3798, 2013 U.S. Dist. LEXIS 70667, at *15 (N.D. Cal. May 17, 2013) (judicial notice of criminal court records, including an arrest warrant), Stuarts objection to judicial notice of records from his criminal case is unfounded. ///
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3.

Ms. Nesthus Declaration Provides Additional Support Regarding CCFC and Lexevias Inability To Proceed In Propria Persona.

As noted above, among other grounds, the Superior Court Defendants move to dismiss CCFC and Lexevias claims because they are attempting to proceed in propria persona in violation of the laws of the states in which they were organized and the Local Civil Rules. (See Doc No. 16-1 at 7:6-8:10, 9:2-6.) While the title page of the Complaint lists an out-of-state attorney, Dean Browning Webb, Mr. Webbs signature is conspicuously absent from the Complaint, and Mr. Webb has not signed any filings in this action. (See Doc. Nos. 1, 4, 17, 19, 21.) Despite having more than three months to do so, there is also no pro hac vice application for Mr. Webb reflected on the Courts docket. Insofar as the Court may rely on Stuarts representation that CCFC and Lexevia are represented by Mr. Webb, (Doc. No. 19-1 at 10:9-10), Ms. Nesthus declaration establishes that Stuart used his name on the Complaint without permission. (Doc. No. 16-3, 4.) Electronic mail from Mr. Webb dated November 19, 2013, submitted in support of Defendant Jeffrey C. Fritz, APCs motion to dismiss also confirms that Mr. Webb is not appearing as counsel in this case and that no pro hac vice application has been filed. (Doc. No. 48-22.) Given these matters bear directly on CCFC and Lexevias inability to pursue claims in this action, they should be considered on the Superior Court Defendants motion to dismiss. /// /// /// /// /// /// ///
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III.

CONCLUSION For the reasons set forth above, the Court should deny Stuarts motion to strike. Dated: December 5, 2013 BEST BEST & KRIEGER LLP

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By: /s/ Matthew L. Green JAMES B. GILPIN MATTHEW L. GREEN Attorneys for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO (erroneously sued as SUPERIOR COURT OF SAN DIEGO COUNTY); HON. ROBERT J. TRENTACOSTA, Presiding Judge of the Superior Court (erroneously sued as Robert J. Trentacostsa); MICHAEL M. RODDY, Executive Officer of the Superior Court; HON. LISA SCHALL, Judge of the Superior Court; HON. LORNA A. ALKSNE, Judge of the Superior Court; HON. CHRISTINE K. GOLDSMITH, Judge of the Superior Court; HON. JEANNIE LOWE, Commissioner of the Superior Court (Ret.); HON. WILLIAM H. McADAM, JR., Judge of the Superior Court; HON. EDLENE C. McKENZIE, Commissioner of the Superior Court; and HON. JOEL R. WOHLFEIL, Judge of the Superior Court

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

/s/ Matthew L. Green _______

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