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Colbern C. Stuart III
Email: Cole.Stuart@Lexevia.com
4891 Pacific Highway Ste. 102
San Diego, CA 92110
Telephone: 858-504-0171
Facsimile: 619-231-9143
In Pro Se

Dean Browning Webb (pro hac vice pending)
Email: ricoman1968@aol.com
Law Offices of Dean Browning Webb
515 E 39th St.
Vancouver, WA 98663-2240
Telephone: 503-629-2176

Attorney for Plaintiffs California Coalition for Families and Children, Inc. and
Lexevia, PC


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)
J udge: Hon. Cathy Ann Bencivengo

MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE MATTER
SUBMITTED IN SUPPORT OF
DEFENDNATS MOTION TO DISMISS

Date: December 19, 2013
Time: 3:30 p.m.
Courtroom:4C


ORAL ARGUMENT REQUESTED
SUBJ ECT TO COURT APPROVAL

Complaint Filed: August 20, 2013




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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................... 1
II. DISCUSSION .......................................................................................................... 1
A. Authority ............................................................................................................... 1
B. Request for J udicial Notice .................................................................................. 2
1. RJ N Exhibits A and B: Declaration of Emily Garson in Support of Arrest
Warrant (Garson Declaration); Superior Court of California Ex Parte Minutes
Form (Ex Parte Minutes)...................................................................................... 3
2. RJ N Exhibits D, F, and G: Printouts of Internet Pages at
http://members.calbar.org, http://www.azbar.org, and www.nvbar.org ....... 5
3. RJ N Exhibit E: Decision and Order of Inactive Enrollment: .................... 6
4. RJ N Exhibit H: Order Of Temporary Suspension ..................................... 6
5. RJ N Exhibits C and I: Printouts from Internet Pages at
https://delcorp.delaware.gov/tin/controller and http://kepler.sos.ca.gov/ ............... 7
C. Nesthus Declaration (Dkt#16-3) ........................................................................ 10
D. Scandalous and Scurrilous Matter ............................................................... 11
E. Immaterial or Impertinent Matter ................................................................ 11
1. All Immunity Affirmative Defenses ............................................................... 11
2. All Authority Under Rules of Civil Procedure Not Asserted ......................... 13
III. CONCLUSION ..................................................................................................... 18











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TABLE OF AUTHORITIES
Ameripride Services, Inc. v. valley Industrial service, Inc., 2008 WL 5068672 (E.D.
Cal. 2008) 8
and Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) 13
Bardes v. Massachusetts Mut. Life Ins. Co., 1:11-CV-340, 2013 WL 4833668
(M.D.N.C. Sept. 10, 2013) 11
Bryant v. Yellow Freight Sys., 989 F. Supp. 966, 968 (N.D. Ill. 1997 16
Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) 5
Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D.Cal.1996) 13
Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) 4, 12
Butz v. Economou, 438 U.S. 478, 506-07, 98 S.Ct. 2894, 2910-11, 57 L.Ed.2d 895
(1978) 12
Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978) 12
Cent. Distribs. of Beer [,] Inc. v. Conn., 5 F.3d 181, 184 (6th Cir. 1993) 16
Color-Vue, Inc. v. Abrams, 44 Cal. App. 4
th
1599, 1603-1604, 52 Cal. Rptr. 2d 443,
446 (Ct. App. 1996) 8
Combs v. Bakker, 886 F.2d 673, 677 (4th Cir. 1989) 16
De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir.2000) 8
Dow Chem. Co. v. Exxon Corp., 30 F. Supp. 2d 673, 694 (D. Del. 1998) 16
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) 2, 3
Fenters v. Chevron, CV-F-05-1630 OWW DLB, 2010 WL 5477710 (E.D. Cal. Dec.
30, 2010) 5
Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) 2
Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) 5
Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 (1980)
4, 12
Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008) 13


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Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) 17
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed.
2d 195 (1989) 15
Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) 14
Imbler v. Pachtman, 424 U.S. 409, 429, 96 S. Ct. 984, 994, 47 L. Ed. 2d 128 (1976)
17
In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) 11
In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992) 2
Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 3, 12
Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) 16
Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). 5
Kennedy v. Full Tilt Poker, 2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010) 13
Kush v. Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983)
16
Larry v. City of the Dalles, 09-CV-663-AC, 2009 WL 4894485 (D. Or. Dec. 16,
2009) 3
Leatherman v. Tarrant Cnty. NarcoticsIntelligence & Coordination Unit, 507 U.S.
163, 167, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) 12
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001) 2
Lewis v. Russell, 838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012) 9
Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA, 2008 WL 4856144 (N.D.
Cal. Nov. 7, 2008). 13
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L.
Ed. 2d 351 (1992) 9, 10
Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925 F. Supp. 191, 193 (S.D.N.Y.
1996) 16
Mertens v. Permanente Med. Grp. Long Term Disability Plan, C 10-1457 RS, 2010
WL 5138815 (N.D. Cal. Dec. 10, 2010) 2


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Morley v. Walker, 175 F.3d 756, 760 (9th Cir.1999) 5
Murray v. Midwest Real Estate Inv. Co., No. 98C1569, 1998 WL 919694, at *2 (N.D.
Ill. Dec. 30, 1998) 16
N.Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P., 2010 WL 1499289, at *1
(S.D.Cal. Apr.12, 2010) 14
Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127
L. Ed. 2d 99 (1994) 10, 15
Odom v. Microsoft Corp., 486 F.3d 541, 546 (9th Cir. 2007) 16
Pierson v. Ray, 386 U.S. 547, 563, 87 S. Ct. 1213, 1222, 18 L. Ed. 2d 288 (1967 17
Procunier v. Navarette, 434 U.S. 555 at 562, 98 S.Ct., at 859 12
Rauch v. Day and Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978) 3
Rodriguez v. Unknown-Named disciplinary Hearings Agent,
209CV02195FCDKJ NPS, 2010 WL 1407772 (E.D. Cal. Mar. 9, 2010) 2
Sadighi v. Daghighfekr, 36 F. Supp. 2d 267 (D.S.C. 1999) 16
Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) 12
Siegert v. Gilley, 500 U.S. 226, , 111 S. Ct. 1789, 1795, 114 L. Ed. 2d 277 (1991) 12
Silliman v. Du Pont, 302 A.2d 327, 330 (Del.Super.Ct.1972) 9
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) 13
Tafflin v. Levitt, 493 U.S. 455, 465 (1990) 16
U.S. v. Angelilli, 660 F.2d 23 (2d Cir. 1981) 16
U.S. v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) 14
U.S. v. Turkette, 452 U.S. 576 (1981) 15
United States v. Frega, 179 F.3d 793 (1999) 16
Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009) 16
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) 2
Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir.2004) 14





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RULES
Fed.R.Evid. 201(b) ......................................................................................................... 2
Fed.R.Civ.Proc. 8(c) ..................................................................................................... 12
Fed.R.Civ.Proc. 12(f) ..................................................................................... 1 et passim






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I. INTRODUCTION
This Memorandum in Support of Plaintiff Colbern Stuarts Motion to Strike
Matter Submitted in Support of Defendants Motion to Dismiss (Motion to Strike)
is filed in support of Plaintiffs Opposition to Defendants the San Diego County
Superior Court, Robert J . Trentacosta, Michael M. Roddy, Lisa Schall, Lorna A.
Alksne, Christine K. Goldsmith, J eannie Lowe, William H. McAdam, J r., Edlene C.
McKenzie, and J oel R. Wohlfeil ("Defendants") Motion to Dismiss Complaint
(MTD) (Dkt.#16-1), the Request for J udicial Notice and exhibits thereto (RJ N)
(Dkt#16-2) and the Declaration of Kristine P. Nesthus (Dkt#16-3).
Relevant case history predating this Motion is set for in Plaintiffs Opposition
to the MTD and incorporated here by reference. In addition, Plaintiffs October 28,
2013 meet and confer letter (M&C) attempted to resolve informally the issues
raised herein. See Ex. A to Declaration of Colbern Stuart in Support of Motion To
Strike, Opposition to Motion to Dismiss (Stuart Decl.). Defendants have rejected
the M&C. Stuart Decl. Ex. B.
Plaintiff moves to strike (1) Defendants Request for J udicial Notice, and
exhibits thereto, (2) Declaration of Kristine P. Nesthus submitted in support of
Defendants MTD, and (3) certain insufficient defenses, immaterial,
impertinent, and scandalous matter in the MTD as follows.

II. DISCUSSION
A. Authority

Federal Rule of Civil Procedure 12(f) provides:

(f) Motion to Strike. The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter. The
court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading


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or, if a response is not allowed, within 21 days after being served with the
pleading.

The function of a 12(f) motion to strike is to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues
prior to trial . . . . Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.
2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on
other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
B. Request for Judicial Notice (Dkt#16-2)
The RJ N may be stricken as immaterial, impertinent, or scandalous matter.
Facts subject to judicial notice are those which are either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b). A court may not take judicial notice of a matter that is in dispute.
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The party requesting
judicial notice has the burden of persuading the court that the particular fact is not
reasonably subject to dispute and is capable of immediate and accurate determination
by resort to a source whose accuracy cannot reasonably be questioned. In re
Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (E.D.Cal.1992); Rodriguez v.
Unknown-Named disciplinary Hearings Agent, 209CV02195FCDKJ NPS, 2010 WL
1407772 (E.D. Cal. Mar. 9, 2010).
A motion to dismiss a complaint under FRCP Rule 12(b)(6) tests the legal
sufficiency of the claims alleged in the complaint. Mertens v. Permanente Med. Grp.
Long Term Disability Plan, C 10-1457 RS, 2010 WL 5138815 (N.D. Cal. Dec. 10,
2010). Under Rule 12(b)(6) the court may not consider any evidence contained
outside of the pleadings. Larry v. City of the Dalles, 09-CV-663-AC, 2009 WL
4894485 (D. Or. Dec. 16, 2009). Evidence submitted to prove facts outside of the
four corners of a complaint is immaterial and impertinent to a Rule 12(b)(6)


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attack of the complaint. [I]mmaterial matter is that which has no essential or
important relationship to the claim for relief or the defenses being pleaded.
Impertinent matter consists of statements that do not pertain, and are not necessary,
to the issues in question. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th
Cir.1993), rev'd on other grounds, 510 U.S. 517 (1994).
Analysis
RJ N Exhibits A through I are not capable of admission by judicial notice
as they lack foundation, are controversial, inadmissible hearsay, scandalous, and
immaterial or impertinent to any issue at thisthe Rule 12 stage. Rauch v. Day and
Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978) (Rule 12(b)(6) permits the court to
consider a motion to dismiss accompanied by affidavits as a motion for summary
judgment. If the motion is treated as one for summary judgment, all parties shall be
permitted to present all material pertinent to the motion.); Jablon v. Dean Witter &
Co., 614 F.2d 677, 682 (9th Cir. 1980).
1. RJN Exhibits A and B: Declaration of Emily Garson in Support of
Arrest Warrant (Garson Declaration); Superior Court of California Ex
Parte Minutes Form (Ex Parte Minutes)
RJN Exhibit A is a Declaration in Support of Arrest Warrant made by San
Diego City Attorneys Office Deputy City Attorney Ms. Emily Garson attesting
under oath to facts as follows:
a. That Deputy City Attorney Garson read and reviewed the contents of San
Diego City Police Department official reports containing 26 obscene and
threatening emails between Plaintiff Stuart and his ex-wife, Lynn Stuart, apparently
gathered in a misdemeanor criminal investigation;
b. That based upon the 26 obscene and threatening emails between Stuart
and his ex-wife, the San Diego Deputy City Attorneys Office filed charges against
Plaintiff Stuart on or about March 24, 2010;
c. That after March 24, 2010, Plaintiff Stuart continued to send obscene and


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threatening messages via email despite criminal pending criminal action against
him.
In the Declaration Ms. Garson requested issuance of a warrant for Plaintiffs
arrest based upon her sworn representations as to the criminal nature of the obscene
and threatening emails contained in the official reports of the San Diego City
Police Department. She executed but did not date the declaration under oath.
The Declaration bears the April 6, 2010 signature of San Diego County
Superior Court J udge Krauel, and the language Declaration read; probable cause to
arrest found; warrant to issue. The Declaration bears a Filed stamp of April 6,
2010.
RJN Exhibit B is an Ex Parte Minutes form (CRM-177) relating to the
same misdemeanor criminal case. The form references issuance of a misdemeanor
warrant and bears a stamp Roger Krauel, is dated April 14, 2010, but bears no
reference to the Garson Declaration, does not identify for whom the warrant was
issued, and does not identify any agency receiving the warrant.
As presented, the exhibits lack foundation to establish their materiality or
pertinence to any issue in this litigation. Presumably Defendants intend to attempt
their introduction to build an affirmative defense of qualified immunity in support of
the contention that the STUART ASSAULT was pursuant to warrant. MTD 1:25,
3:22, 4:3, 23:28. Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) (qualified
immunity is an affirmative defense for which asserting party bears the burden of
proof); Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572
(1980); Fed.R.Civ.Proc. 8(c) (defendant must plead any matter constituting an
avoidance or affirmative defense). Yet as offered, the exhibits lack necessary
foundation for introduction at this or any stage, and are thus immaterial or
impertinent to any matter properly at issue here.
Moreover, should Defendants attempt to perfect their foundation to establish
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the Garson declaration contains numerous false statements under oath. See Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005); Morley v. Walker, 175 F.3d 756, 760
(9th Cir.1999) (prosecutor not immune for false probable cause declaration leading to
issuance of warrant); Fenters v. Chevron, CV-F-05-1630 OWW DLB, 2010 WL
5477710 (E.D. Cal. Dec. 30, 2010); Burns v. Reed, 500 U.S. 478, 486487 (1991);
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Kalina v. Fletcher, 522 U.S. 118,
126 (1997). As such the controversial evidence may also be stricken an insufficient
defense at this Rule 12 stage.
Further, the documents are inadmissible under any circumstances as they are
multiple hearsayout of court statements presently offered for the truth of the
matters therein asserted; The declaration is hearsay to this action, referencing a file,
itself hearsay to the criminal action and this action, containing hearsay statements or
other foundationless matter by a San Diego City Police Department officer, relating
to emails, further hearsay, containing obscene and threatening language, also
potentially hearsay.
Related Allegations in the MTD:
Defendants representations that Contrary to his allegations, at the time of the
seminar, there was an outstanding warrant for Stuarts arrest in connection with a
criminal action (MTD 3:22), and that Stuart was arrested pursuant to the
outstanding warrant (MTD 4:3) are false, at least controversial, and as such are
constitute an insufficient defense at the Rule 12 stage. As such these sections of
the MTD may also be stricken.
2. RJN Exhibits D, F, and G: Printouts of Internet Pages at
http://members.calbar.org, http://www.azbar.org, and
www.nvbar.org
These printouts of pages from internet websites purporting to reflect
proceedings and matters within the State Bars of California, Arizona, and Nevada are
foundationless, inadmissible hearsay, and not material to any matter properly at issue


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here. Exhibit D contains the same misrepresentations contained in the Garson
Declaration, the facts are controverted, and if injected into this action by proper
procedure, will be vigorously contested. To the extent that the exhibits reflect
Plainitffs status with the State Bar of California or Arizona, such evidence is
immaterial and impertinent to any matter in the Complaint or at issue in the MTD
(see capacity discussion at II.B.5 below). Plaintiff Stuart appears in this litigation
only pro senot as counsel for any partyyet this fact is not pertinent to any
analysis under Rule 12(b)(6) or 12(b)(1).
3. RJN Exhibit E: Decision and Order of Inactive Enrollment:
This document purports to be evidence of state bar proceedings within the State
Bar of Nevada. It is unsigned and undated, foundationless, inadmissible hearsay, not
material to any allegation in the Complaint, and suspected to be fraudulent. It bears
no indicia of filing in any matter. All testimony or evidence contained therein is
hearsay and will be contested as it purports to relate to the contents of the
controversial City Attorney declaration at RJ N Exhibit A regarding matters
immaterial and impertinent to the Complaint or MTD. As such it may be stricken.
4. RJN Exhibit H: Order Of Temporary Suspension
For many of the same reasons relating to Exhibits D, E, and F, above,
the document is foundationless, inadmissible hearsay, and not material to any
allegation in the Complaint. As above, to the extent Exhibit H contains the same
misrepresentations contained in the Garson Declaration, the facts are controverted,
and if injected into this action by proper procedure, will be vigorously contested. To
the extent that the Exhibit reflects STUARTS status with the State Bar of Nevada,
such evidence is also immaterial and impertinent to any matter in the Complaint or at
issue in the MTD. STUART does not appear in this litigation as counsel for any
party. See capacity discussion below; Stuart Decl. X.


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5. RJN Exhibits C and I: Printouts from Internet Pages at
https://delcorp.delaware.gov/tin/controller and http://kepler.sos.ca.gov/
Similar to RJ N Exhibits D, F, and G above, Exhibits C and I are
foundationless hearsay printouts from the Delaware and California Secretaries of
State and may be stricken for evidentiary reasons alone. However, the matters
asserted therein are not controvertedCCFC is a Delaware Public Benefit
Corporation in good standing, and Lexeiva, PC is a California Professional
Corporation which has its license presently suspended for reasons unrelated to this
action.
Yet these noncontroversial matters are immaterial or impertinent to any issue
in the Complaint or MTD. The MTDs analysis in reliance on them exhibits two
fundamental confusions between state and federal law on capacity and standing.
The MTDs confusion will be first explained, then an accurate analysis offered.
a. Capacity vs. Standing Under State Law
The exhibits are offered in support of Defendants claims that CCFC and
LEXEVIA lack capacity to sue: As a Delaware corporation, which was only
incorporated the day before filing this action, CCFC' s capacity to sue is governed by
Delaware law. . . Under Delaware law, CCFC must appear in this action through
counsel and cannot proceed in propria persona. . . . (MTD 7:11). With regard to
Lexevia, its capacity to sue is determined by California law. (Compl. at 1.)
According to the California Secretary of State, it is a suspended professional
corporation. (RJ N, Ex. I.) MTD 8:13-15.
CCFC and Lexevias capacity to sue are immaterial, impertinent, and raise
insufficient grounds for relief available by Rule 12(b)(1) or (6) as requested in the
MTD. Capacity and standing are distinct issues, and a plaintiffs lack of capacity to
sue is not an appropriate ground on which to bring a motion to dismiss for lack of
standing. This distinction is explained in the California Court of Appeals case
Defendants themselves cite: Respondents' arguments are based on their belief that


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ColorVue's suspension for failure to pay its taxes deprived ColorVue of standing to
prosecute its action. Respondents are mistaken. Suspension of corporate powers
results in a lack of capacity to sue, not a lack of standing to sue. Color-Vue, Inc. v.
Abrams, 44 Cal. App. 4
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1599, 1603-1604, 52 Cal. Rptr. 2d 443, 446 (Ct. App.
1996). The California Court of Appeals for the Second District (applying California
Code of Civil Procedure disanalogous to the Federal Rules on the question of
standing) diagnosed defendant/respondents confusion: [defendants] confusion
may have arisen from the fact that a suspended corporation is often described as not
in good standing with the State of California or the Secretary of State. Color-Vue
at fn. 3.
Defendants here exhibit the same confusion as the defendants in the state court
of appeals case they cite.
b. Capacity vs. Standing Under Federal Law
Capacity and standing are also distinct issues under federal law, but for a
different reason that is also fatal to Defendants analysis in the MTD. Under both
state and federal law, capacity may be raised by a defendant at any time in the
lawsuit, yet is curable by revival. Color-Vue, supra; Ameripride Services, Inc. v.
valley Industrial service, Inc., 2008 WL 5068672 (E.D. Cal. 2008). The analysis
under federal law is reported as follows:
Federal Rule of Civil Procedure 9(a)(1) states that a pleading need not
allege ... a party's capacity to sue or be sued. Therefore, to raise incapacity as
an issue, a party must do so in a responsive pleading; failure to do so forfeits
any incapacity argument. De Saracho v. Custom Food Mach., Inc., 206 F.3d
874, 878 (9th Cir.2000). . . . These statements are themselves sufficient to
satisfy FRCP 9(a). The primary purpose of this rule is to provide notice to the
opposing party, and once notice of the defense is provided, FRCP 9 itself does
not require a party to file an early dispositive motion based on the defense. See


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Silliman v. Du Pont, 302 A.2d 327, 330 (Del.Super.Ct.1972) (citing 5 Wright
& Miller, Federal Practice and Procedures Section 1295)).

Id. (lack of standing to sue can be raised at any time, even for the first time on
appeal.). See also Lewis v. Russell, 838 F.Supp.2d 1063, 1068-69 (E.D. Cal. 2012)
(Defendants do not waive defense of plaintiffs lack of capacity by failure to assert in
initial responsive pleading).
Thus, a lack of capacity to sue is not grounds for a motion to dismiss provided
a party can revive. The MTD acknowledges LEXEVIAs present ability to revive its
capacity to sue, and the accompanying Stuart Decl. represents that revival is
underway.
The MTD nevertheless asserts dismissal under Rule 12(b)(1), reasoning that in
lacking capacity, LEXEVIA lacks standing under Article III. MTD 8:19-23. This
analysis is incorrect. Article III 2, clause 1 of the United States Constitution
confers jurisdiction to federal courts only over cases and controversies. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d
351 (1992) (Though some of its elements express merely prudential considerations
that are part of judicial self-government, the core component of standing is an
essential and unchanging part of the case-or-controversy requirement of Article III.).
Under Lujan, a plaintiff must establish standing by showing (1) injury in fact, (2) a
causal connection between the injury and the relief sought, and (3) that the injury will
be redressed by a favorable decision. Id. Capacity is not relevant to establish Article
III standing.
c. LEXEVIAS Article III Standing
LEXEVIA has averred facts sufficient to establish Article III standing. Injury
in fact includes injury to individuals, corporations, as well as unincorporated
associations. See, e.g., Lujan, supra; Nat'l Org. for Women, Inc. v. Scheidler, 510
U.S. 249, 255, 114 S. Ct. 798, 802, 127 L. Ed. 2d 99 (1994). Both Lexevia and


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CCFC have suffered and pled injury in fact as entities existing as one or more of a
corporation, unincorporated association, or individuals. See analysis at Oppo.__;
M&C IV.I.
d. Corporate Plaintiffs Representation Is Immaterial to a Request for Dismissal
Under Rule 12(b)(1) or (6)
The MTD asserts that RJ N Exhibits C and I are material to establish that
the corporate plaintiffs are not represented by counsel: Neither Stuart nor Mr. Webb
are counsel for CCFC (MTD 7), and Lexevia has appeared in this action without
counsel (MTD 9). As detailed at M&C IV.I.2, Both CCFC and LEXEVIA are
represented only by counsel, Mr. Dean Webb. The caption page of the Complaint
clearly identifies Mr. Webb as Attorney for Plaintiffs California Coalition for
Families and Children, Inc. and Lexevia, PC. (Compl. p. 1). STUART nowhere
claims to be counsel for any party and has consistently appeared only pro se in each
pleading. See Verified Complaint, Verification (Compl. pp. 171, 172); Ex Parte
Application for Temporary Harassment Protective Order (Dkt #4); Ex Parte
Application for Leave To Utilize Electronic Filing System (Dkt #6); Ex Parte
Application for Leave to File Over-length Brief (Dkt #17), this Memorandum,
Motion, and related Opposition. Mr. Webbs notation that he is in process of
obtaining pro hac vice admission is an accurate disclosure that he is not admitted in
this District, and is in process of obtaining admission by appropriate procedure. See
M&C sec. I.
As corporate representation is a capacity issue immaterial to standing, RJ N
Exhibits C and I are impertinent, immaterial, and an insufficient defense within a
Rule 12 motion. They may thus be stricken.
C. Nesthus Declaration (Dkt#16-3)
For many of the same reasons, the Nesthus Declaration is evidentiary,
controversial, immaterial, impertinent, and inappropriately filed at any stage. The
Declaration is testimony of irrelevant events by Ms. Nesthus after she became aware


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of the Complaintcalling around to parties and counsel requesting withdrawal of the
Complaint, demands to remove home addresses from the on-file Complaint,
hearsay representations regarding Ms. Nesthus conversations with Mr. Webb about
details of his representation of Plaintiffs. It may thus be stricken.
D. Scandalous and Scurrilous Matter
To the extent that the RJ N exhibits and Nesthus Declaration are immaterial or
impertinent, they are also scandalous, defamatory, exhibit perjury, and are filed to
continue the pattern of HARASSMENT AND ABUSE identified in the Complaint
and the Motion for Harassment Temporary Restraining order (Compl. 188, 202,
203, 228, 276, 279-80, 294, 386-391; Dkt#4). Scandalous includes allegations that
cast a cruelly derogatory light on a party or other person. In re 2TheMart.com, Inc.
Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000); Bardes v. Massachusetts Mut.
Life Ins. Co., 1:11-CV-340, 2013 WL 4833668 (M.D.N.C. Sept. 10, 2013) (brief
containing impertinent personal opinions of opposing counsel may be stricken as
scurrilous). They may thus be stricken.
E. Immaterial or Impertinent Matter in MTD (Dkt#16-1)
The MTD asserts matter and argument so misguided as to rise to the level of
being immaterial or impertinent to any relief available under a Rule 12(b)(6)
motion, and may be stricken.
1. All Immunity Affirmative Defenses
MTD sections C, D, and E raise the substantive affirmative defenses of
absolute judicial and sovereign immunities. Such defenses are immaterial,
impertinent, and insufficient defenses in the present Rule 12(b)(6) motion and thus
may be stricken.
Immunity is an affirmative defense. Butler v. Elle, 281 F.3d 1014, 1021 (9th
Cir. 2002) (Government officials sued in their individual capacities under 1983
may raise the affirmative defenses of qualified or absolute immunity. Gomez v.
Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 (1980) (this


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Court has never indicated that qualified immunity is relevant to the existence of the
plaintiff's cause of action; instead we have described it as a defense available to the
official in question.); Procunier v. Navarette, 434 U.S. 555, 562 (1978); Pierson v.
Ray, 386 U.S. 547, 556 (1967); Butz v. Economou, 438 U.S. 478, 508 (1978); Siegert
v. Gilley, 500 U.S. 226 (1991); Leatherman v. Tarrant Cnty. NarcoticsIntelligence &
Coordination Unit, 507 U.S. 163, 167 (1993).
The burden of pleading and proving any affirmative defense rests with the
defendant. Fed.Rule Civ.Proc. 8(c) (defendant must plead any matter constituting an
avoidance or affirmative defense); 5 C. Wright & A. Miller, Federal Practice and
Procedure 1271 (1969). It is for the official to claim that his conduct was justified
by an objectively reasonable belief that it was lawful. We see no basis for imposing
on the plaintiff an obligation to anticipate such a defense by stating in his complaint
that the defendant acted in bad faith. Gomez, supra. The same is true for the defense
of reasonableness. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Butz, supra.
Affirmative defenses generally may not be raised in a Rule 12(b)(6) motion
unless based on some non-controversial preclusive legal defense. Scott v. Kuhlmann,
746 F.2d 1377, 1378 (9th Cir. 1984). A defendant may bring a Rule 12(b)(6) motion
based upon an affirmative defense in unusual circumstances: where the face of the
Complaint admits a defense. See, e.g., Jablon v. Dean Witter & Co., 614 F.2d 677,
682 (9th Cir. 1980) (If the running of the statute is apparent on the face of the
complaint, the defense may be raised by a motion to dismiss.); Graham v. Taubman,
610 F.2d 821 (9th Cir.1979). A Rule 12(b)(6) motion asserting that the complaint
admits a defense must show the defense is (i) definitively ascertainable from the
complaint and other allowable sources of information, and (ii) suffice to establish
the affirmative defense with certitude. Gray v. Evercore Restructuring L.L.C., 544
F3d 320, 324 (1st Cir. 2008).
As detailed in the Opposition, the Complaint admits no affirmative defense of
immunity. See also M&C III.B. MTD sections IV.C, D, and E may therefore be


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stricken as immaterial, impertinent matter and insufficient defenses in the present
Rule 12(b)(6) context.
2. All Authority Under Rules of Civil Procedure Not Asserted
The MTD requests relief of dismissal with prejudice or without leave under
Rule 12(b)(6), yet presents arguments which cannot achieve that result. MTD IV.3:4,
11:8, 23:4. Rule 12(f) may be used to strike any part of the prayer for relief when the
relief sought is not recoverable as a matter of law. Bureerong v. Uvawas, 922 F.Supp.
1450, 1478 (C.D.Cal.1996); Lovesy v. Armed Forces Benefit Ass'n, C 07-2745 SBA,
2008 WL 4856144 (N.D. Cal. Nov. 7, 2008).
As detailed in the Opposition, the MTD conflates authority under Rules 12(c), (e),
and (f) with Rule 12(b)(6), and attacks the Complaint for failing to satisfy Rule 9(b)s
fraud pleading standard when the relevant standard is fact pleading under Rules 9 and
8(a) per Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Gilligan v. Jamco
Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). The result is a confusing morass of
immaterial and impertinent argument and authority seeking unavailable relief, and
rising to the level of strikeable matter.
Though the Court may convert a Rule 12(b)(6) motion to a Rule 12(e) motion,
doing so in this case would be improper. The class of pleadings that are appropriate
subjects for a motion under Rule 12(e) is quite small. Kennedy v. Full Tilt Poker,
2010 WL 1710006, at *23 (C.D.Cal. Apr.26, 2010). A motion for more definite
statement is used to provide a remedy for an unintelligible pleading rather than a
correction for lack of detail. N.Cnty. Commc'ns Corp. v. Sprint Commc'ns Co., L.P.,
2010 WL 1499289, at *1 (S.D.Cal. Apr.12, 2010). Length, complexity, or even
unnecessary prolixity are not grounds for dismissal with or without leave under Rule
12(b)(6). See, e.g., Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th
Cir. 2008). Where a complaint exceeds reasonable inclusion of supplemental
particulars, the proper disposition of such matter is to simply ignore it. U.S. v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (Some complaints are


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windy but understandable. Surplusage can and should be ignored.); Wynder v.
McMahon, 360 F.3d 73, 80 (2d Cir.2004) (holding that district court erred in
dismissing on Rule 8 grounds when the complaint, though long, was not so
confused, ambiguous, vague or otherwise unintelligible that its true substance, if any,
is well disguised.)
Analysis
Defendants, with some prolixity, assail the Complaint as incomprehensible
rambling (MTD 1, 10:2), of the magnitude of War and Peace (MTD 2), bucket of
mud, sprawling, incomprehensible, confusing, distracting, ambiguous, and
unintelligible (MTD 9), confusing and conclusory (MTD 10), and that a reader
must "try to fish a gold coin from a bucket of mud[,]". Yet the Complaints length
and complexity cannot be accused as a defect of pleading; the statutes it is brought
under are notoriously complex and perhaps confusing even to the accomplished
jurists present in this litigation.
Yet such insults, even if accurate, are not grounds for dismissal under Rule
12(b)(6). The MTD asserts authority under Rules 12(e) and (f), or motions for leave
to amend under Rule 15, in support of the MTDs arguments under Rule 12(b)(6).
See Oppo., M&C III.A. The MTDs authority and arguments thereunder are thus
disenabling to the relief sought, and may be stricken. Bureerong, supra.
Moreover, the Complaint, like the complex criminal enterprises RICO and the
civil rights statutes are intended to extinguish, is by design complex. The heavy
artillery of federal law RICO mechanisms are targeted to combat only complex
organizations. United States v. Frega, 179 F.3d 793, 800 (9th Cir. 1999)). The
statement of findings that prefaces the Organized Crime Control Act of 1970 reveals
that Congress enacted RICO to redress a highly sophisticated, diversified, and
widespread activity that annually drains billions of dollars from America's economy
by unlawful conduct and the illegal use of force, fraud, and corruption using social
exploitation deriving money and power . . . increasingly used to infiltrate and


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corrupt legitimate business . . . and to subvert and corrupt our democratic processes.
The breadth of the organized crime activities in the United States weaken the
stability of the Nation's economic system, harm innocent investors and competing
organizations, interfere with free competition, seriously burden interstate and foreign
commerce, threaten the domestic security, and undermine the general welfare of the
Nation and its citizens. Congress intended RICO to supplement state laws under
which organized crime continues to grow because of defects in the evidence-
gathering process of the law inhibiting the development of the legally admissible
evidence necessary to bring criminal and other sanctions or remedies to bear on the
unlawful activities of those engaged in organized crime and because the sanctions and
remedies available to the Government are unnecessarily limited in scope and impact.
84 Stat. 922923. U.S. v. Turkette, 452 U.S. 576, 588-89 (1981). Four decades of
caselaw have confirmed Congress intent that RICO is not targeted toward mom-n-
pop backroom scams, but to inoculate erstwhile legitimate enterprises, including
unions, public corporations, mass market retailers, and public institutions such as law
enforcement, political office, and the courtsincluding one case identifying
Defendant San Diego Superior Court itself. See, e.g., H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 243, 109 S. Ct. 2893, 2903, 106 L. Ed. 2d 195 (1989)
(telecommunications corporations); Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S.
249, 260, 114 S. Ct. 798, 805, 127 L. Ed. 2d 99 (1994) (civil rights organizations);
Odom v. Microsoft Corp., 486 F.3d 541, 546 (9th Cir. 2007) (Microsoft Corporation
and Best Buy software retailing operations); Vierria v. California Highway Patrol,
644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009); Dow Chem. Co. v. Exxon Corp., 30 F.
Supp. 2d 673, 694 (D. Del. 1998); U.S. v. Angelilli, 660 F.2d 23 (2d Cir. 1981) (civil
courts); United States v. Frega, 179 F.3d 793 (1999) (the San Diego Superior
Court).
One civil rights conspiracy statute asserted, 42 U.S.C. 1985(1), (2), and (3) is
drafted as a single sentence of 590 words in six paragraphs. It has been generously


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assailed by J ustice J ohn Paul Stevens as somewhat difficult to parse. Kush v.
Rutledge, 460 U.S. 719, 724, 103 S. Ct. 1483, 1486, 75 L. Ed. 2d 413 (1983). RICO
too has been bewailed as "arcane," "tormented," "complicated," "agonizingly
difficult" and "fraught with arcane mysteries." Bryant v. Yellow Freight Sys., 989 F.
Supp. 966, 968 (N.D. Ill. 1997); Macy's E., Inc. v. Emergency Envtl. Servs., Inc., 925
F. Supp. 191, 193 (S.D.N.Y. 1996) ("arcane eccentricities of RICO jurisprudence");
Combs v. Bakker, 886 F.2d 673, 677 (4th Cir. 1989) (a "tormented statute"); Sadighi
v. Daghighfekr, 36 F. Supp. 2d 267 (D.S.C. 1999) (noting statute's "torment"); Tafflin
v. Levitt, 493 U.S. 455, 465 (1990); Cent. Distribs. of Beer [,] Inc. v. Conn., 5 F.3d
181, 184 (6th Cir. 1993) ("one of the most complex statutes ever enacted by
Congress"); Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir. 1990) (a complex
statute); Murray v. Midwest Real Estate Inv. Co., No. 98C1569, 1998 WL 919694,
at *2 (N.D. Ill. Dec. 30, 1998) ("exceedingly complicated").
Without doubt, the asserted statutes are complexhoned power tools to enable
citizens to combat collusion by public and private officers wielding the devastating
potential of state police power and private wealth to leverage racketeering and civil
rights crimes:

The section's purpose was to provide redress for the deprivation of civil rights.
It was recognized that certain members of the judiciary were instruments of
oppression and were partially responsible for the wrongs to be remedied. The
parade of cases coming to this Court shows that a similar condition now obtains in
some of the States. Some state courts have been instruments of suppression of
civil rights. The methods may have changed; the means may have become more
subtle; but the wrong to be remedied still exists.

Pierson v. Ray, 386 U.S. 547, 563 (1967); Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949) (It does indeed go without saying that an official, who is in fact guilty of


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using his powers to vent his spleen upon others, or for any other personal motive not
connected with the public good, should not escape liability for the injuries he may so
cause; and, if it were possible in practice to confine such complaints to the guilty, it
would be monstrous to deny recovery.); Imbler v. Pachtman, 424 U.S. 409, 429
(1976) (This Court has never suggested that the policy considerations which compel
civil immunity for certain governmental officials also place them beyond the reach of
the criminal law. Even judges, cloaked with absolute civil immunity for centuries,
could be punished criminally for willful deprivations of constitutional rights on the
strength of 18 U.S.C. 242, the criminal analog of 1983.).
To plead to these statutes, the Complaint must detail the complex and diverse
duties, acts, and enterprises harming plaintiffs and impacting a wide class of U.S.
citizens numbering in the millions. The Complaint asserts 32 distinct civil causes of
action and 32 related indictable federal felonies, 27 categories of predicate crimes
and 13 RICO Claims for Relief, based on seven Schemes and Artifices to Defraud
under nine federal mail, wire, bank, and honest services fraud criminal statutes,
including related obstruction of justice, and witness tampering and retaliation. It
asserts two counts for prospective relief including a Motion for a Harassment
Restraining Order and requests to enjoin enforcement of an entire body of
unconstitutional family and criminal law. The Complaint names 49 distinct public
and private entities comprising a nationwide Domestic Dispute Industry Criminal
Enterprise (DDICE). Even counsel experienced in this rapidly-evolving body of
federal civil and criminal law would be understandably paused to comprehend the
Complaints necessary depth and complexity.
It is no fault of Defendants that, despite their relative acumen in the law, they did
not immediately grasp the gravity of the statutes posed against them. Their refusal to
pause to comprehend that message before insulting its messenger is far less innocent.



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III. CONCLUSION
Defendants have attempted to introduce immaterial, impertinent, controversial,
scandalous, and inadmissible evidence in support of a motion that cannot weigh
evidence. They have submitted a perjurous declaration and foundationless,
incomplete, and potentially fraudulent documentsvia a request for judicial notice.
They have misunderstood and misrepresented capacity and standing under both
state and federal law. The have requested the wrong relief under the wrong authority.
They have refused Plaintiffs efforts toward informal resolution by withdrawal of the
errant pleadings and exhibits, and refused stipulations to resolve pleading matters
which are properly and regularly resolved by leave to amend, forcing unnecessary
pleading in opposition.
Plaintiff respectfully requests the Court strike the following as insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter under
Federal Rule of Procedure 12(f):

1. The RJ N and all Exhibits thereto (II.B supra);
2. The Nesthus Declaration (II.C supra);
3. MTD IV.C (11
th
Amendment Immunity Affirmative Defenses) (II.D.1
supra.);
4. MTD IV.D (J udicial Immunity Affirmative Defenses) (II.D.1 supra);
5. MTD IV.E (Quasi-J udicial Immunity Affirmative Defenses) (II.D.1
supra);
6. MTD IV.B (Bucket of Mud Attack) (II.D.3 supra);
7. MTD IV.A.1 (Corporate Plaintiffs Capacity) (II.B.5 supra);





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8. MTD IV.F.1 (Immaterial and Impertinent Arguments Under Rules 12(c),
(e), (f), Rule 9(b)) (II.D.2, 3 supra).


Respectfully Submitted



DATED: November 7, 2013 By: /s/

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

Colbern C. Stuart, III


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the
court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other
counsel of record will be served by facsimile transmission and/or first class mail this
7th day of November, 2013.


By: /s/

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


Colbern C. Stuart, III