May 19, 2014—San Diego, CA—California Coalition For Families and Children, PBC announces filing of motions and oppositions in its Racketeering and Civil Rights lawsuit against Family Courts and the Divorce Industry. The latest round of filings explains to the United States District Court the foundation for the lawsuit and request that the Court permit the case to move into discovery.
“Defendants filed an avalanche of almost two hundred pages of attacks on the First Amended Complaint on virtually every legal ground that could be imagined” says Colbern Stuart, President of California Coalition. “They threw the book at us, and we responded in kind.”
California Coalition’s opposition brief totaled 186 pages of analysis explaining the legal foundations of the Action. The motions were filed as part of an “Omnibus” round of briefing ordered by presiding District Court Judge Cathy Ann Bencivengo. In the filing, defendants joined forces and also filed separate “joinder” briefs on issues unique to each defendant. “They pretty much ganged up on us in this round—we’re facing an army of lawyers representing lawyers–divorce law firms, forensic psychologists, family law judges, the Administrative Office of the Courts, the Commission on Judicial Performance, even Chief Justice Tani Cantil-Sakauye” says Stuart.
The “Omnibus” filing challenged the legal foundation for California Coalition’s First Amended Complaint. At this round of the litigation, no party can present evidence, but the District Court Judge examines the Plaintiff’s legal theories to determine if they state a cause of action recognizable under law. If the Complaint states “cognizable claims”, the case goes forward. Defendants can also assert technical defenses, such as expiration of statutes of limitation, or jurisdictional issues. Such defenses don’t adjudicate the merits of the claim—but only whether the complaint meets a checklist of technicalities. It’s common for such motions to be raised at the outset of the litigation. For many issues, the complaint can be “fixed” by simply amending to satisfy the technicalities. In other cases, such as statute of limitations or jurisdiction bars, judicial or other immunities, and certain other “all-or-nothing” defenses, a court isn’t required to grant the plaintiff permission to amend if it’s apparent that even an amended complaint couldn’t go forward. The Omnibus brief filed by all defendants raised many of these “all or nothing” defenses.
The San Diego Superior Court and the Administrative Office of the Courts also filed a motion for sanctions. “They’re putting on brass knuckles.” says Stuart. “They’ll need them. This time we’re on neutral turf in federal court, and families will be ready.” From the Opposition brief:
Statute of Limitations:
Adoption of a two year statutory period in this case would frustrate the purposes of the Civil Rights Act. “State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute.” Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S. at 701. . . The Court may decline to borrow state law “when the applicable state limitations period would have frustrated the policy of the federal statute, concluding that in such a case no limitations period governs the suit.” Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 157 (1987). . . . The purpose of the Civil Rights Act was to prohibit precisely the abuse of State authority here alleged—conspiracy to deprive United States citizens of equal protection of the laws. “There can be no doubt at least since Ex parte Virginia, that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. . . . First, it might, of course, override certain kinds of state laws. . . . Second, it provided a remedy where state law was inadequate. . . . The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. The opposition to the measure complained that ‘It overrides the reserved powers of the States.” Monroe v. Pape, 365 U.S. 167, 171-72 (1961) (internal citations omitted).
The FAC details coordinated malingering of petulant state and local officials deploying state-sponsored violence in concert with private wealth to impede, delay, and obstruct Plaintiffs’ efforts to redress grievances in state and federal executive and law enforcement agencies, state courts, and in this United States District Court—precisely the evils the Civil Rights Act was provided to prohibit and remedy. To appease such belligerence by gratuitously borrowing from their own forum’s abbreviated personal injury limitations statute to cut off this action rewards the behavior the statutes were intended to deter—an ongoing, coordinated, highly effective pestilence onto tens of thousands of United States citizens whose interests are today present, and perpetrate an obscene affront to our most cherished civic values of liberty and equal justice under law. This Court is bound by no state or federal limitations term, and it need not, and should not, “borrow” California’s or any state’s law that would countenance those very state actors’ criminal violations of federal law in oppression of some of the State’s most vulnerable citizens. . . .
Analysis: The FAC alleges Defendants have undertaken extensive efforts in collaboration to delay and prevent Plaintiffs from braining this action. Allegations in the FAC relevant to estoppel are identified as MALICIOUS PROSECUTION (FAC ¶¶ 349, 351, 353-467), OBSTRUCTION OF JUSTICE (FAC ¶¶509-539, 551-634, RACKETEERING COUNT 5) DOYNE TERRORISM (FAC ¶¶ 808-830), FALSE ADVERTISING (FAC ¶¶904-914), FRAUDS AND SWINDLES (FAC ¶¶ 1003-1030), HONEST SERVICES FRAUD (FAC ¶¶1034-1037), KIDNAPPING (RACKETEERING COUNT 3), EXTORTION (RACKETEERING COUNT 4), and various specific allegations described therein as “duress” “fraud” “undue influence.” In short, Defendants, in conspiracy and enterprise have wrongfully and violently impeded, oppressed, and delayed STUART from pursuing this Action, the CLAIM AND DEMAND, DUE COURSE OF JUSTICE, and PUBLIC BENEFIT ACTIVITIES sufficient to estop each of them from asserting any statute bar, and such circumstances are “extraordinary” and “beyond plaintiff’s control.” Stroll at 1242. . . .
VIVIANO, DOYNE, BLANCHET, WOHLFEIL and SCHALL are special cases because of their fiduciary and professional relationships, which create special tolling rules for both active and passive concealment, duress and undue influence, and expand the accrual date by the “delayed discovery rule.” E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308, 1317-18 (2007). For attorneys, “continuing representation” tolls the term until end of representation. Beane v. Paulsen, 21 Cal. App. 4th 89 (1993); Grisham v. Philip Morris USA, Inc., 40 Cal.4th 623, 637, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (2007). Where a defendant is in a special relationship even passive concealment will toll the statute. Thorman v. American Seafoods Co., 421 F.3d 1090, 1096 (9th Cir.2005); Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir.1978).
Under state and federal law, the term for claims against fiduciaries does not run upon injury, but upon plaintiff’s discovery of “all facts” relevant to each claim. “Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’” Code Civ. Proc., § 312; Fox v. Ethicon Endo–Surgery, Inc., 35 Cal.4th 797, 806 (2005).
Running of the term for claims against DOYNE, BLANCHET, VIVANO, BIERER, and FRITZ are also tolled during the term of their conspiracies to defraud and extort STUART. COUNTS 11, 13, 15; RACKETEERING COUNTS 1-4, 7-10. The FAC alleges Doyne acted in conspiracy with Blanchet to fraudulently induce, defraud, and extort STUART. COUNT 11. When STUART alerted BLANCHET to concerns, BLANCHET furthered the conspiracy by fraudulently inducing STUART to delay in violation of her fiduciary and attorney-client PROFESSIONAL DUTIES. BLANCHET further induced delay by extorting STUART will threats of loss of custody his son by retribution by DOYNE. STUART did delay action against DOYNE.
DOYNE was a participant in the STUART ASSAULT, and has been a central target of California Coalition’s FFRRESA. His co-conspirators in the STUART ASSAULT COORDINATOR group furthered that delay by committing the STUART ASSAULTS, then exerting influence through C. GOLDSMITH’S husband and co-conspirator J. GOLDSMITH and GARSON in the MALICIOUS PROSECUTION and PROSECUTORIAL MISCONDUCT, delaying the initiation of this Action during the illegal persecution and false imprisonment of STUART. COUNT 3. Acting on behalf of “all defendants” the NESTHUS DEFENDANTS continued to further illegally impede STUART from pursuing this action through the NESTHUS OBSTRUCTION OF JUSTICE, and continues in their efforts through assertion of frivolous defenses to this day.
The actions of DOYNE accused were not “health care”, but dispute resolution services—he was hired to mediate a dispute. His profession of “forensic psychology” purports to exercise the authority of law enforcement, judges, and the “science” of psychology. A more preposterous concept has never appeared on the shores of any free nation, and by grace of God such evil will soon be gone and never appear on any shores anywhere ever again. DOYNE’S “forensic psychology” profession renders neither health nor care, but fraud, abuse, extortion, and oceans of cruelty, hypocrisy, and pain onto families already in crisis who are compelled to entrust such unrepentant evil with their futures. Whatever this Court’s judgment of DOYNE’S conduct as culpable, innocent, inequitable, or otherwise, Plaintiffs are certain it will not be the final word.
Several of the Defendants asserted an “Eleventh Amendment Immunity” defense.
The Supreme Court has construed the Eleventh Amendment to restrict federal jurisdiction over sovereign States unless the State consents. Hans v. Louisiana, 134 U. S. 1 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). This construction is contrary to the clear language of the Eleventh Amendment, yet tolerated by some. Justice Stevens has described Eleventh Amendment jurisprudence as creating “two Eleventh Amendments,’ one narrow and textual and the other—not truly a constitutional doctrine at all—based on prudential considerations of comity and federalism.” Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 52 (1994) (Stevens, J, concurring) (citing Pennsylvania v. Union Gas Co., 491 U. S. 1, 23-29 (1989) (Stevens, J., concurring). Justice Stevens teaches that fictitious construction “is not merely misguided as a matter of constitutional law; it is also an engine of injustice. . . . [T]hroughout the doctrine’s history, it has clashed with the just principle that there should be a remedy for every wrong. See, e. g., Marbury v. Madison, 1 Cranch 137, 163 (1803). Sovereign immunity inevitably places a lesser value on administering justice to the individual than on giving government a license to act arbitrarily.” “Arising as it did from the peculiarities of political life in feudal England . . . sovereign immunity is a doctrine better suited to a divinely ordained monarchy than to our democracy.” Hess at 53-54.
Entities “beneath state level” are not co-equals with the United States, and may not escape the jurisdiction of federal courts. . . . Federal courts approach assertions of Eleventh Amendment immunity with suspicion. “By its terms, the protection afforded by [the Eleventh] Amendment is only available to ‘one of the United States.’ It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself. But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power.’ ” Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979). . . . Defendants’ assertion of Eleventh Amendment immunity in this case is similarly inappropriate. The interpretation offered by the Commission—recently rationalized through an un-enacted judicial policy of “dignity of a sovereign” (See Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002))—cannot justify the effective exemption of an entity so independent as the San Diego Superior Court and various county court administrative employees. Whatever rationale for extending immunity to a State because of it’s “dignity”, the these Defendants fall short of parity with the United States, and are entitled to no such “dignity”—particularly when the net effect of such a policy amounts to nothing more than a coerced hometown forum selection clause. If anything, exempting Defendants from accountability to the citizens who created them in a neutral forum is itself an affront to whatever “dignity” these Defendants aspire to, and even to the lay intelligence of the governed.
In good faith advocacy for a correction in the “misguided machinery” of 20th Century Eleventh Amendment jurisprudence, and in good faith obedience to the wisdom of a name that will be cited long after most who have sat on the same bench, Plaintiff respectfully submits that Defendants’ assertion that the Eleventh Amendment bars citizen claims against their own State in federal court is inconsistent with the language of that Amendment, inconsistent with the Fourteenth Amendment governing “States”, and requests Defendants’ motion be denied on that basis along to reserves the issue for appeal. See John Paul Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1124–1125 (1993) . . .
2. Defendants Have Waived or Consented to Federal Jurisdiction in Due Process and Equal Protection Claims
“Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). The Fourteenth Amendment to the United States Constitution 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, and Congress as a whole 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. The Amendment specifically prohibits “States”, and specifically grants rights to “citizens of the United States.”
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting “appropriate legislation.” Amend. XIV, § 5; Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001). The subsequent passage of the 1871 Civil Rights Act, modernly codified as sections 1981-1988 of Title 42 containing the sections 1983, 1985, 1986, and 1988 under which this Action is brought, also enacted through a majority of the Senate and the House of Representatives, was a specific embodiment of Congress’ power under section 5, empowering citizens to bring suit under the Fourteenth Amendment, and further articulating the State’s consent to be sued in federal court for its violations of the Fourteenth Amendment.
3. States are Not “immune under the Eleventh Amendment” for Discrimination
Title 42 U.S.C. 2000d-7 provides:
(a) General provision
(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 States of California receives generous funding from federal taxation through sources far too numerous to list, including interstate highways, education, agriculture, housing and urban development, energy, justice, labor, social insurance and welfare, and medical insurance, subsidies, and special funding. Many of these federal funds find their way directly to present defendants in programs relating to child care, social services, domestic violence (VAWA) programs, 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)—funds delivered directly to Family Court government entities administering the policies, conspiracies, and enterprises accused herein. Family Court orders enjoy full faith and credit recognition and enforcement in all States under 28 U.S.C. § 1738 (“Acts, records, and judicial proceedings” of “any State … of the United States … shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of such State … from which they are taken.”) and in federal courts and military courts under 18 U.S.C. §§ 2261(a)(1), 2265 (FAC ¶962). White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). Family Court child support orders may be enforced in foreign Countries through bilateral international treaty between the United States and foreign nations, and are enforceable by the U.S. State Department in refusing to issue, honor, or revoking passports of U.S. citizens. 42 U.S.C. §§ 652(k), 654(31). There are perhaps no local government entities more tightly interwoven with and dependent upon United States laws, treaties, and institutions for funding, operation, and enforcement for their orders and decrees than Family Courts.
As present defendants are recipients of federal financial assistance, they are subject to suit in federal court for violations of the Fourteenth Amendment for Actions brought under the Civil Rights Act—a “Federal statute prohibiting discrimination.” 42 U.S.C. § 2000d-7. This Action asserts numerous such violations against the EQUAL PROTECTION CLASSES. FAC ¶ 163, and each section 1983 Claim. As Defendants in their official capacities have received abundant benefits of federal resources and laws, they have subjected themselves to the jurisdiction of that sovereign in claims they have not administered those resources according to federal law. Even if mere “arms of the state”, all defendants are subject to suit in this courthouse.
The Commission on Judicial Performance challenged California Coalition’s standing to seek injunctions against discriminatory enforcement of the state’s policies governing family court judges. California Coalition has uncovered extensive evidence that the Commission gives family court judges a “free pass” to abuse family court litigants—who they call “disgruntled.” From the Opposition:
In Linda R.S. Justice Marshall rationalized his decision that plaintiff lacked standing because prosecuting delinquent child support debtors of illegitimate children could assure such delinquent parents were jailed—but Justice Marshall reasoned it was too “speculative” to presume it would have an effect on their willingness to pay child support. That condition does not exist in this Action against SIMI and BATTSON. An illegal policy, habit, or custom of not prosecuting judges for abusing a class litigants directly and foreseeably will lead to more abuse. The condition Justice Marshall identified—a policy of not prosecuting person A for A’s not doing something A should (pay person B) was “speculative” to person B’s injury because even if person A was jailed, he may or may not pay person B.
That disjunction in proximity is not present here. The question is: Do BATTSON and SIMI’S activities in refraining from policing judges for abusing a class of citizens foreseeably “set in motion” more abuse that class of citizens? The answer is clear, and well-articulated by Justice White, joined by Justices Douglas, Blackmun, and Brennan, in the dissent from Linda R.S.:
[W]hy should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not appellant and her class? They are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws. Appellant, her daughter, and the children born out of wedlock whom she is attempting to represent have all allegedly been excluded intentionally from the class of persons protected by a particular criminal law. They do not get the protection of the laws that other women and children get. Under Art. 602, they are rendered nonpersons; a father may ignore them with full knowledge that he will be subjected to no penal sanctions. . . . I had always thought our civilization has assumed that the threat of penal sanctions had something more than a ‘speculative’ effect on a person’s conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court’s surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children. . . .
If a State were to pass a law that made only the murder of a white person a crime, I would think that Negroes as a class would have sufficient interest to seek a declaration that that law invidiously discriminated against them. Appellant and her class have no less interest in challenging their exclusion from what their own State perceives as being the beneficial protections that flow from the existence and enforcement of a criminal child-support law.
Linda R.S. v. Richard D., 410 U.S. 614, 620-21 (1973) (White, J. dissenting).
Courts in the United States have repeatedly found government actors liable for creating policies and conditions which foreseeably permit others to cause injury. See Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). When that policy, habit, or custom of permitting crime, causing a deprivation of liberty, property, speech, or other fundamental rights, or works against a class, the policy is a violation of equal protection under state and federal constitutions. United States v. Armstrong, 517 U.S. 456, 465 (1996); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1914); United States v. Classic, 313 U.S. 299, 326; Screws v. U.S., 325 U.S. 91 (1945).
As the interests and numerous fundamental rights of classes no less important than families and children are present here, their equal treatment in crisis—when they need the fair protection of the law the most—deserves federal attention. Families are our nation’s core and future. They are clearly identifiable, and deserve at least as much protection as other groups, who have achieved recognition for class-based discrimination against them. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985) (“illegitimacy” a recognized intermediate scrutiny class); Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (9th Circuit modern standard for equal protection analysis of intermediate scrutiny class); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012) cert. granted, 133 S. Ct. 786 (U.S. 2012) and vacated and remanded sub nom, Hollingsworth v. Perry, 133 S. Ct. 2652 (U.S. 2013) (modern standard for rational basis scrutiny); Romer v. Evans, 517 U.S. 620, 650 (1996); Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (strict scrutiny). They speak today through a powerless representative, but do not assert “disgruntled litigant” claims—but clearly demonstrable commercial fraud, extortion, deprivation, and abuse committed on an enterprise scale.
Several of the private divorce lawyers and the San Diego County Bar Association asserted that they are not “state actors” and therefore can’t be liable for abusing litigant rights. California Coalition responded that divorce lawyers and family courts operate outside of ordinary roles of court and lawyer—formaing an “enterprise level” entity to form and administer “family law” policy, and policing its consistent enforcement. This collaboration between family law judges, lawyers, and psychologists creates a “color of law” collaboration necessary to hold private lawyers responsible for violating litigant rights as if they were government actors. From the brief:
a. Enterprise-Level Collaboration (“Entanglement”)
Defendants themselves provide the best evidence of their operation as public/private enterprise, variously describing themselves as a “Family Law Community” or “Family Law System.” FAC ¶¶ 62, 66. In San Diego, top “certified family law specialists” regularly meet with Superior Court leaders to set and administer “policy” for the “Family Law System.” The FAC alleges the California Domestic Dispute Industry is a highly integrated partnership between private and public actors, functions, powers, and control. Id., FAC Ex. 1, 2. The FAC summarizes the abundant evidence of Defendants’ unhidden collaboration: “California legal institutions such as family courts and the legal community, professional institutions such as the state bar and psychology boards, and criminal justice institutions have in the recent decade gradually combined to cultivate a joint enterprise forum in which widespread “family practice” exceptions to the rule of law are not only tolerated, but increasingly encouraged.” Count 7. Its members also operate private networks to pursue their commercial purposes and collaborate toward those ends in the form of a “cabal” FAC ¶ 946-949. They collaborate in mutual referral networks (Racketeering Count 2) and coordinate their public commercial advertising to support one another’s fraud (FAC ¶ 949, Count 15). Private entities collaborate with public entities to create and police a commercial market for illegal, unnecessary, and even harmful domestic relations “legal services” (FAC ¶ 933-36, 953), maintain the long-term viability of the market in collaborative pacts (FAC ¶ 956-61), and compete unfairly with any disfavored competitors in the same marketplace, including California Coalition. FAC ¶¶ 913, 950, 951. By agreement and abuse of process in knowing collaboration with public entities, private entities invoke public authority, police powers, and the criminal justice system to protect their markets (FAC ¶ 952). Each of these allegations is an independent basis for color of law liability.
Defendant ALLIANCE operates a “family justice center” business model in San Diego and throughout the nation based on public/private “colocation.” This collaboration is a central pillar of the SD-DDICE, DDI-IACE, and a major pillar of the DDICE. FAC ¶937, Ex. 1. This model coagulates public officials under a public/privately funded “alliance” to create and disseminate illegal policies, indoctrinate officials away from settled law, establish practice-level “protocols”, share public/private infrastructure and “technical assistance” research, and enforce compliance (FAC ¶ 938, Ex. 1, P6-7, P47-71, P72-90, P97-104, P127, P292-306, P441-447, P448-456, P457, P460-467). The “vertical integration” of Family Courts and Criminal Courts explained by Dr. Baskerville in Ex. 13 further describes the integration of Divorce Industry lawyers, social workers, police, family courts, and criminal courts in abundant detail.
SDCBA is another pillar of the SD-DDICE. Through meetings such as the SDCBA SEMINAR (and numerous others not specifically alleged) it coordinates dissemination of illegal policy, custom, and practice and direction throughout the Family Law Community utilizing SDCBA premises and infrastructure. In California such policies include the Domestic Dispute Industry’s “Pit” (FAC ¶ 964-974), collaborate with state and county defendants to invoke “The Pit’s” domestic violence restraining orders and other abuses to commit fraud and extortion (FAC ¶ 937-939, 975-76; Doc. No. 109), abuse of process by SDCB members using SDCBA-maintained “listervs” (FAC Exhibit 2 re: Lesh/Doyne). The SD-DDICE has created and maintains an extensive fraudulent “forensic psychology” commercial enterprise (FAC ¶¶ 940-942, 977-983, FAC Ex. 2) and utilize public licenses in collaboration with knowing but illegal abstention of judicial officers to conduct “False Flag” fraud (FAC ¶¶ 984-999). Federal provides insurance and financial and legal backing to these illegal enterprises (FAC ¶ 30), and coordinates their legal defense to include in this case collaboration with CITY ATTORNEY DEFENDANTS in the MALICIOUS PROSECUTIONS. All Defendants invoke police powers and the criminal justice system regularly and illegally to enrich and defend their public-private enterprise industry.
The framework, policies, and legal tools for this collaboration fall within the “symbiosis,” “entanglement,” and “state constructed framework” models for state actor liability disclosed in Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), North Georgia Finishing, Incorporated v. Di-Chem, Incorporated, 419 U.S. 601 (1975) and Blum v. Yaretsky, 457 U.S. 991 (1982) above. Specific deployments of this framework in both enterprise and conspiracy are identified elsewhere in the FAC and below. All Defendants operate and profit from this entanglement, and are therefore color of law actors for all purposes.
b. Harassment And Abuse Collaboration
The FAC describes a history between Domestic Dispute Industry Defendants and California Coalition and its community of parents and children that has devolved into nothing short of concerted warfare on Plaintiffs by private and public collaboration. The FAC details how the enterprise-level collaboration above has graduated to focus its ominous machinery of criminal and civil justice systems, private wealth, connections, and know-how in conspiracy and enterprise to specifically target California Coalition’s reform efforts, exercise and advocacy for federal supremacy, and support of candidates, processes, and institutions of the United States (“FFRRESA”).
c. Racketeering Collaboration
The collaboration between various defendants is also described by their use of specific types of schemes and artifices to defraud and tools of extortion to commit racketeering, extortion, bribery, fraud, and multiple acts of violence to crush Plaintiffs’ attempts to compete with and reform a heinous domestic dispute industry. See, COUNTS 1, 3, RACKETEERING COUNTS 3, 6. Such crimes would not be possible absent common observance and coordinated policing of extra-legal policies or customs utilizing the coercive tools of domestic courts and law enforcement which, though perhaps immune from civil rights lawsuits, are nevertheless illegally deployed onto the targets of the crime: Families. The heinous tools deployed in such schemes include issuance of illegal DVILS ORDERS, disobedience of state and federal constitutional protections for litigants, deployment of illegal “forensic psychology” commercial enterprises , disregard of ordinary rules of evidence in violation of state statutes, caselaw, to equal protection, enforcement of illegal attorney fees awards, and wide-scale and shameful judicial abstention and acquiescence by judges under whose noses the practice occurs daily. FAC ¶¶ 984-999. In just this case Defendants have acted in highly-coordinated conspiracy and enterprise over the past six years to conduct and participate in the racketeering enterprises and conspiracies to combat Plaintiffs’ competition and reform, including illegally imprisoning CALIFORNIA COALITION’S leader, and threatening dozens of its members with similarly deplorable retaliation.
Defendants also attacked the Complaint’s conspiracy allegations. It’s common in any lawsuit for a plaintiff to allege claims against multiple defendants causing injury. In civil cases this is described as “joint tortfeasors” “agency” or “respondeat superior.” Collaboration in civil rights cases cannot be assumed with the same ease as ordinary commercial disputes. A plaintiff must show some purposeful joint intent and action. The civil rights statutes describe that collaboration as “conspiracy.” Sometimes a civil rights Defendant will mock the assertion of joint action via a conspiracy statute as “a grand scheme by all defendants out to get plaintiff.” It’s considered a “low blow” tactic. An attempt to belittle a civil rights plaintiff who is normally an individual facing a big government or corporation. Some of the defendants in this round took that “low road” and even sought sanctions against California Coalition for alleging conspiracy. “The sanction tactics combined with their own poor analysis should be embarrassing.’” says Stuart.
“You expect a competent opponent to attack aggressively. You expect an opponent to advocate—and even sometimes hyperbolic exaggeration or extreme statements are considered fair play. But if you plan to toss the high tight fastball of a demand for sanctions–better make sure your pants are on before the ball is hit right back at your exposed areas” says Stuart.
“To insult an opponent by asking for sanctions in a first opposing response while simultaneously fumbling your own case is pathetic. We didn’t expect to see San Diego’s own bar association—which hosts seminars on ethics and professionalism—and superior court judges who discipline attorneys for exactly this type of behavior–to fumble through these “low blows” say Stuart. “It’s disturbing to see this from community leaders. Maybe we hit a nerve.”
A. Rule 41(b) Sanction is Frivolous
Defendants invite the Court to commit clear error of law in seeking sanctions in a first response to a Complaint. The faithless litigation maneuver is not merely frivolous, but a sad benchmark in the depravity, disrespect, color of law harassment, and invidious discrimination these defendants have wrought upon the institutions they today represent and the citizens they serve. Though sworn to the highest of standards for obedience to principle and fairness, Defendants today deploy the lowest of litigation tactics and abuse.
“Unwarranted” is the kindest characterization of Defendants’ attempt to lead this Court into abuse of the power to sanction litigation conduct.
Plaintiffs have elsewhere petitioned that including Defendants’ home addresses in the initial Complaint is not a violation of General Order 550, and Government Code § 6254.1 is invalid ab initio as a matter of law. See, Plaintiff’s Ex Parte Application for Emergency Harassment Restraining Order, Doc. No. 4. Superior Court employee Ms. Kristine Nesthus’ threats to retaliate for Plaintiff’s initiation of this Action is an indictable crime, and Ms. Nesthus’s threats fall somewhat short of an Order of a United States District Court Judge.
Though the OMNIBUS fails to carry any burden here as Defendants must (Yourish at 990), the remaining factors of the Rule 41(b) analysis weigh against a sanction. “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). In Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) the Court of Appeals reversed a dismissal sanction despite a documented history of discovery abuse and numerous prior sanctions against plaintiff’s counsel. Id. “The underlying claim of police brutality in this case is a serious one, calling into question the manner by which the state exercises its monopoly on the legitimate use of force. Thus, the public has an interest in having this case decided on the merits.” See also Indus. Bldg. Materials, Inc. v. Interchemical Corp., 278 F. Supp. 938, 949 (C.D. Cal. 1967) (“drastic remedy” of sanction only appropriate where no less drastic measures available).
This Action involves issues of public policy at least as important as police brutality—the integrity and obedience to fundamental state and federal laws of our statewide family courts, their in-house private “forensic psychology” enterprises, prevention of thousands of divorce lawyers in extorting and defrauding unwary families and children in the crisis of a domestic dispute, the City of San Diego and its’ City Attorney’s Office and county law enforcement deploying violence under color of law to persecute an officer of this Court for his support and advocacy for federal processes and institutions and enforcement of the rights of his clients and families and children statewide to equal rights, privileges and immunities under state and federal law. More precious public interests are difficult to imagine.
Defendants have not and cannot establish prejudice at their first opposition to a pleading; they have been on notice of Plaintiff’s efforts and the CLAIM AND DEMAND for years and have well-documented their own deplorable behavior in public records now in their possession. This action is in its infancy, and the present motions are most defendant’s first contesting appearance. In the absence of prejudice to the opposing party, leave to amend must be freely granted. Foman v. Davis, 371 U.S. 178, 182 (1962); Wyshak v. City Nat. Bank, 607 F.2d 824, 826-27 (9th Cir. 1979).
The request for dismissal as a sanction nothing less than frivolous harassment and expense-inducing delay.
Defendants are bound by numerous PROFESSIONAL DUTIES including the strictest fiduciary and legal representative obligations to protect their clients’ and citizen rights to due process and equal protection, including rights to evidentiary protections, privacy, and procedural protections available to every other civil litigant. While perhaps immune, the acts are nonetheless illegal. It is inconceivable that an entire class of lawyers, psychologist, and judge could violate their professions’ clear PROFESSIONAL DUTIES to openly participate in vast deprivation, commercial fraud, and unveiled extortion that has become de rigueur in family court without intelligent direction, collaboration, and reinforcement. Such deplorable collaboration is precisely the illegal collusion that subjects the commercial Divorce Industry bar to liability as state actors, and precisely the behavior this Action is aimed to remedy.
The Family Court Defendants also attacked the RICO allegations in the Complaint. “RICO is an extremely complex body of law that few lawyers or judges deal with regularly, and even fewer understand” says Stuart.
“California Coalition hired experienced RICO counsel for this very reason. Mr. Webb is a published expert in RICO and has handled dozens of cases in federal court for over thirty years. He has done an outstanding job in drafting a complaint that nails these defendants to the wall. For better or worse, Defendants themselves fail to recognize the power of the relatively recent invention of the racketeering laws, and how many of the ‘immunity’ and pleading defenses they’re familiar with in the civil rights and state law matters don’t apply.”
The Omnibus and many defendants individually attacked the RICO case vigorously. Stuart says they missed the mark entirely, leaving open a wide path for Family Court litigants to recover for their own losses.
“For Family Court litigants, RICO pleading is particularly powerful because of the public/private partnerships that we’ve uncovered in many jurisdictions. If you’re a family Court litigant and have been duped, RICO is an extraordinarily powerful tool. Study these pleadings and I can assure you you’ll find new ways to recover for your losses inflicted by family courts, lawyers, psychologists, and others in the enormously profitable industry” says Stuart. From the brief:
All RICO claims are adequately pled under Rule 8 and 9(b). Courts permit generous pleading of RICO because of the pernicious nature of the criminal elements the statute is targeted to eradicate. 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 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 enacted RICO in 1970 intending to improve enforcement of fraud and extortion laws that were not being enforced by state authorities 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. 922–923.” U.S. v. Turkette, 452 U.S. 576, 588-89 (1981).
Defendants’ schemes in this case are exactly the intended targets of RICO—widespread collaboration to commit fraud and extortion by sophisticated interrelated schemes to defraud, launder the money and/or use it to corrupt others, use the ill-gotten gains to infiltrating professional organizations, government, and industry to corrupt the entities and governments assigned to their oversight, and persecution of the victims who reach out to federal authorities for assistance. The FAC is adequately pled to give abundant notice of claims, and further amendment unnecessary. “Although RICO cases may be pesky, courts should not erect artificial barriers—metaphysical or otherwise—as a means of keeping RICO cases off the federal dockets” Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 194 (9th Cir. 1987) (citing Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 500 (1985)).
Family Court Judge Michael Groch and several other judicial defendants including Family Court psychologist Dr. Stephen Doyne asserted judicial immunities under federal law. Stuart says they missed the mark, again openning the door for Family Court litigants to bring their own lawsuits. “They missed some important steps in the process” says Stuart. “Most people don’t understand that immunities are rather narrow—judges, psychologists, and other government actors frequently overstep the boundaries of their authority. In California, any government actor violating a litigant civil rights is acting outside of the scope of their jurisdiction—we’ve asserted those claims against the judges in the lawsuit, who seem to be taking a ‘ignore it and maybe it will go away’ approach. That may not be the best way to get rid of us” says Stuart.
“Family Court litigants need to understand two things: First be sure that you know going in that you’re not protected in the same way you would ordinarily expect to be. Family lawyers, psychologists, or judges can rape you with near impunity. These people have carved out special practice rules for themselves in this area that are detached from any law. Here, they believe they can abuse you at will because the attorneys guarding the henhouse are in bed with the foxes” says Stuart. “You may not even understand that you’re being defrauded or extorted. Attorneys, judges, and psychologists collaborate to close the deal on their fraud and your future. They make it look entirely normal. It’s not” says Stuart.
“The best bet is to stay out of Family Court at all cost–it’s ruined so many lives of good people that it’s staggering that these people aren’t in prison. But If you’ve found yourself in family court, you’re in grave danger of being taken advantage of. The way the practice is run, you certainly can’t count on a Family Courts or lawyer to protect your rights” says Stuart.
“Second, the sort-of good news is that if you have been victimized, you can bring civil rights actions against the judges, psychologists, opposing counsel, mediators, and even your own lawyer if they failed to warn, advise, and assert your rights to protect you. But it’s not as simple as, for example, a police brutality or commercial fraud lawsuit. Under the California Constitution provisions we’re citing governments aren’t immune.”
Stuart says it’s also important to realize that mere malpractice claims may not survive motions to dismiss, and are subject to many state law defenses and a hostile judiciary. “Negligence is easier to prove, but it’s a weak claim in the face of state court defenses and state court prejudices in favor of this industry. Defendants can assert immunities, and fall back on the excuse ‘but everyone else is doing it so it can’t be wrong.’ The racketeering and civil rights claims we’ve drafted are slightly more complex to prove, but far, far more powerful.” RICO is rarely used by lawyers, but not because they’re poor remedies, but because few lawyers understand them.
“We hope to get the word out that the best tools in this area can be the least-often deployed. With success in this lawsuit we hope to pave a path for other victims of family court to set the record straight in their own cases” says Stuart. From the brief:
b. GROCH’S “Monstrous” Criminal Behavior and Conspiracies Are Not Immune
JUDICIAL DEFENDANTS make a bare assertion that “the claims against Judge Groch, all of which arise out of his presiding over Stuart’s criminal action . . . are barred by the doctrine of judicial immunity” (3:9-10) and the FAC “fails to identify any acts of Judge Groch beyond those exercised in his judicial capacity.” Defendants do not identify any claim or allegation. They do not describe or even assert GROCH’S jurisdiction. They do not propose that any of GROCH’S many acts alleged in the FAC are judicial acts. JUDICIAL DEFENDANTS fail to make any showing toward their burden on the affirmative defense of judicial immunity.
GROCH has not, and cannot, establish the affirmative defense of immunity. 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.” GROCH fails to address his burden in asserting immunity, asserting: “The FAC, however, fails to identify any acts of Judge Groch beyond those exercised in his judicial capacity.” Doc. No. 139, 3:25-27. Defendant must plead any “matter constituting an avoidance or affirmative defense” Fed.Rule Civ.Proc. 8(c). Affirmative defenses may be raised in a Rule 12(b)(6) motion only when the if 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, such as when the face of the Complaint “admits” the 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).
The analysis necessary to determine existence of judicial immunity is evidentiary, and if not apparent on the fact of the complaint, the defense is unavailable. Id. To prove entitlement to judicial immunity, GROCH must establish: (1) each act against him was within the scope of his authority and (2) each act alleged against him was a “judicial act.” Stump v. Sparkman, 35 U.S. at 360; Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986); Beard v. Udall, 648 F.2d 1264 (9th Cir.1981); Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980), cert. denied Zeller v. Rankin, 451 U.S. 939 (1981), overruled by Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986). Conspiracies outside of court “setting in motion” deprivation in court are not immune. Wallace v. Powell, 3:09-cv-00268-ARC, Document # 1510, filed 9 January 2014 (Plaintiff’s Request for Judicial Notice Ex. A); Rankin at 847 (“Although a party conniving with a judge to predetermine the outcome of a judicial proceeding may deal with him in his “judicial capacity,” the other party’s expectation, i. e., judicial impartiality, is actively frustrated by the scheme. In any event, the agreement is not “a function normally performed by a judge.” It is the antithesis of the “principled and fearless decision-making” that judicial immunity exists to protect.”). Actions by a judge under color of law in the absence of authority are void as “coram non judice”, and a defendant causing injuries while in coram non judice is entitled to no immunity whatsoever, but is strictly liable as a trespasser. Manning v. Ketcham, 58 F.2d 948 (6th Cir. 1932); Restatement (Second) of Torts § 162 (1965).
GROCH Cannot Establish His Jurisdiction
Establishing jurisdiction requires reference to facts and law. In Stump, the Supreme Court analyzed an extensive record developed in the district court to determine Judge Stump’s jurisdiction. Stump at 356, fn 4 (citing the analysis in the district court in Sparkman v. McFarlin, 552 F. 2d 172 (CA7 1977): “In approving the petition, Judge Stump cited no statutory or common law authority under which he was purporting to act. Moreover, counsel has not during the course of this litigation cited any specific statutory or common law basis under which a court can order the sterilization of a child simply upon the petition of a parent.” Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976)). In Mireless v. Waco Judge Mireless was sued for having a public defender assaulted in the same courthouse. The judge established jurisdiction under Cal. Code of Civ. Proc. 128(5) because the public defender was deemed a “ministerial officer” of the court. By contrast, in Gregory v. Thompson, 500 F.2d 59 (1974) a judge’s actions in assaulting a litigant in his courtroom was neither within the judge’s jurisdiction or a judicial act, and the judge was not entitled to immunity. Id.
JUDICIAL DEFENDANTS haven’t attempted to establish GROCH’S jurisdiction over any person or act in the FAC, and thus have not carried the first prong of the defense.
GROCH Has Not Identified a “Judicial Act” Which Could Be Immune
The second prong requires the party asserting immunity to identify a “precise act” that was a “judicial act.” Ashelman at 1076. “Judicial acts” are acts requiring “exercise of discretion in the independent decision-making adjudication of controversies.” Id.; Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980); Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993). A judge is only immune for acts which are “only performed by judges.” Stump at 362; Gregory v. Thompson, 500 F.2d 59 (Judge’s eviction of a litigant from his courtroom was law enforcement act, not a judicial act); Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir.) , cert. dismissed, 449 U.S. 1028 (1980) (Judge bringing charges functioning as a prosecutor not a judicial act); Harris v. Deveaux, 780 F.2d 911, 915 (11th Cir. 1986). Judges appointing and supervising subordinate personnel have been consistently denied judicial immunity. Forrester v. White, 484 U.S. 219, 229 (1988); Meek v. Cnty. of Riverside, 183 F.3d 962, 966 (9th Cir. 1999); Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982) (‘These [executive] functions bear little resemblance to the characteristic of the judicial process that gave rise to the recognition of absolute immunity for judicial officers: the adjudication of controversies between adversaries.’).
The analysis necessary to resolve the second “judicial act” prong is complex, evidentiary, and is certainly not derivable from the FAC. This test considers “(i) the adversary nature of the process, (ii) the correctability of error on appeal, (iii) the importance of precedent, and (iv) the presence of safeguards that reduce the need for private damage actions as a means of controlling unconstitutional conduct.” Cleavinger v. Saxner, 474 U.S. 193, 202 (1985); Arena v. Dep’t of Soc. Servs. of Nassau Cnty., 216 F. Supp. 2d 146, 153-54 (E.D.N.Y. 2002). It seems unlikely that JUDICIAL DEFENDANTS will identify authority for a judge to banish an adult from his home State to reside in another. Nor would it seem likely that similar authority exists permitting a judge to place a litigant under “house arrest” during trial without bringing charges or finding a litigant in contempt. Whatever the nature of these acts and their relationship to constitutional authority, these and every other act of a Family Court judge are not acts of a court of competent jurisdiction. See People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 286 (S.D.N.Y. 2000).
Here, JUDICIAL DEFENDANTS fail even to attempt their burden. Count 3 alleges facts as foundation for the civil rights and other claims against many defendants including GROCH. FAC ¶ 350. These allegations are foundation for tolling and estoppel (FAC ¶ 466), claims against other defendants which may not assert personal immunities (claims 3.1—FEDERAL; 3.6—Chilling; Count 4; Claims 5.1, 5.2, 5.5—BATTSON, SIMI; Count 6—Supervisory Liability of TRENTACOSTA, J. GOLDSMITH, CANTIL-SAKAUYE, JAHR, and RODDY; Count 7 Municipal Liability against CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, SAN DIEGO SUPERIOR COURT; Count 9 for Section 1985 liability; and Count 10 for Section 1986 liability. The MALICIOUS PROSECUTION and PROSECUTORIAL MISCONDUCT allegations are also relevant to numerous civil rights claims to which immunity is never a defense, including deprivation of equal protection (Count 9) and all acts outside the scope of judicial power as provided in California Constitution Art I, § 26 (Count 13, FAC ¶ 493). See Ex parte Virginia, 100 U. S. 339, 348-349 (1880). Judicial immunity is not a defense to civil rights and racketeering crimes. See U.S. v. Frega, 179 F.3d 793 (9th Cir. 1999); Imbler v. Patchman, 424 U.S. 409 (1976); 18 U.S.C. § 241, 242.
c. Judicial Immunity Does Not Bar Prospective Relief
Neither GOLDSMITH nor GROCH is entitled to immunity from claims for prospective relief. Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) (“judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.”). GROCH asserts otherwise, claiming “Judicial immunity is not limited to suits for damages, ‘but extends to actions for declaratory, injunctive and other equitable relief…’” citing Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996). Doc. No. 138, 3:21-23. This is inaccurate. Moore v. Brewster stands for exactly the opposite proposition. Correctly recited, Moore v. Brewster holds:
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. Mullis v. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1394 (9th Cir.1987), cert. denied, 486 U.S. 1040 (1988). Cf. Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) (state officials enjoy judicial or quasi-judicial immunity from damages only).
Moore at 1243-44 (internal citations omitted) (emphasis added). GROCH is a county judge. FAC ¶ 26.
GROCH’S crimes and their consequences are unshielded when lurking from beyond the short fiction of immunity. Claim 3.5 sets forth the core civil rights claim against GROCH, and expressly limits the claim to non-immune acts: “the attempt to coerce, induce, or wrongfully persuade STUART to leave this District, the state of California, and return to live in Arkansas after his release from imprisonment,”
While JUDICIAL DEFENDANTS may reasonably stand agape at their colleague’s ignorance of laws clearly-established for over one hundred years criminalizing such deplorable conduct, they cannot credibly claim that the FAC fails to give notice of the non-immune portions of that illegal course of conduct. Establishing otherwise is Defendants’ burden. JUDICIAL DEFENDANTS fail.
DOYNE’S reach for quasi-judicial immunity cites cases which have been modernly synthesized into the “function” test initially articulated in Burns v. Reed, 500 U.S. 478, 498 (1991) and subsequently synthesized into the modern “function” doctrine through Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), Kalina v. Fletcher, 522 U.S. 118 (1997), and in our own District in Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
These cases refute the immunity outcome DOYNE pursues here. Modernly courts analyze immunity claims by distinguishing between “judicial” functions such as ruling on motions, advocating at trial, and trial testimony, which are given absolute immunity. Other functions such as “investigative” “ministerial” “administrative” or otherwise are not absolutely immune even if related to a judicial function. The single exception for out-of-court functions entitled to absolute immunity applies to criminal prosecutors in activity that is “intimately related” to the criminal prosecution. See, Imbler v. Pachtman, supra. Even for prosecutors, investigative, administrative, ministerial, or other functions not in the form of advocacy during the criminal prosecution are not entitled to absolute immunity. Genzler, 410 F.3d 630, 636 (9th Cir. 2005).
DOYNE’S functions in this case are apparent from the FAC: He was hired as a private mediator—he had no authority to undertake any judicial, investigative, or other potentially immune act. Unlike social workers in dependency proceedings in which the state “takes away” custody from parents, mediators in a dissolution proceeding do not advocate for the state, either party, or the child. Moreover, even social workers appointed by a court or agency who function as prosecutors are only entitled to immunity for prosecutorial, and not investigative acts. Genzler, supra. DOYNE cannot establish immunity here because there is no “state-advocacy” role of a prosecutor role to play in a dissolution. At best, appointed child custody evaluators might function as police investigators eligible for a qualified immunity. See, e.g., Genzler v. Longanbach, 410 F.3d 630, 642 (9th Cir. 2005); Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003); Hoffman v. Harris, 511 U.S. 1060 (1994) (“An official seeking such immunity, however, must at the outset show that a “counterpart to the privilege he asserts” was recognized at common law in 1871, for “[w]here we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.”). On the FAC or any set of facts, DOYNE cannot achieve immunity here.
Evidence Code 730 “Appointments”: DOYNE references California Evidence Code section 730 describing the functions of “court-appointed 730 expert.” (143-1, 9:4-10) yet makes no claim that he was in fact appointed pursuant to Evidence Code section 730, because he was not.
Even so, DOYNE’s claim that an appointment of an investigator under California Evidence Code section 730 extends judicial immunity to an appointee is preposterous. DOYNE’S assertion would mean that county judge could use an Evidence Code provision to extend absolute immunity under the Constitution and laws of the United States, to hoist not only psychologists, but also police, criminal investigators, prison wardens, even social workers working at the feet of a county judge to operate above United States law. Such a fantastic vision is uniquely appealing perhaps to present defendants who nourish conflict among a child’s blood relations to inject a paid surrogate from the sciences of forensic child custody evaluation into a family’s affairs. To those not bestowed with such visions, the suggestion would be reasonably received as treason.
No Foundation for Immunity
Like GROCH, DOYNE must establish the scope of any authority he was operating under, which is a question of fact. See Sec. II.B.1(b)-(e), supra. The FAC alleges he has acted ultra vires under color of law, and thus cannot assert immunity for violating STUART’S rights. California Const. Art. I sec. 26. Any officer who acts in excess of his jurisdiction is operating “off the reservation” and is not protected by any immunity. Butz v. Economou, 438 US 478, 519 (1978); Ex Parte Virginia, supra. The FAC alleges that DOYNE violated STUART’S rights under the California. As a color of law actor exercising authority in excess of his jurisdiction, he was at all relevant times acting in coram non judice, and may not assert immunity, but is strictly liable for any injuries he has caused. Manning v. Ketcham, 58 F.2d 948 (6th Cir. 1932); Restatement (Second) of Torts § 162 (1965).
Finally, DOYNE’S crimes can never achieve immunity, nor can his violations of due process and equal protection. See Ex parte Virginia, 100 U. S. 339, 348-349 (1880) (equal protection violations of a prosecutor not immune); U.S. v. Frega, 179 F.3d 793 (9th Cir. 1999) (judicial immunity no defense to racketeering); Imbler v. Patchman, 424 U.S. 409 (1976); 18 U.S.C. § 241, 242. None of DOYNE’S acts are, and God willing will never be, beyond the law of any state or nation. Marbury v. Madison, 1 Cranch 137, 163 (1803).
No Witness Immunity
Doyne cites Briscoe v. LaHue and Kurazawa, which concern witness immunity. Doc. No. 143-1, 7-8. In both cases the witness performed work both inside and outside of court, but the liability claims were focused on in-court proceedings. Neither case immunizes non-testimonial investigative activity. Briscoe at 342. While DOYNE certainly committed perjury, the civil rights claims against him are not based on his perjury, but abundant other illegal behavior. Racketeering claims under 18 U.S.C. § 1961(1)(A) and (B) or 1962 (d) are not subject to witness immunity. E.g. RACKETEERING COUNTS 3, 4, 7, 8, 9, 10.
No Mandatory Reporter Immunity
DOYNE asserts a California state law immunity for “mandatory reporters” making negligent reports of suspected child abuse under California Penal Code § 11172. He directs the immunity to paragraph 817 of the FAC, which alleges numerous misrepresentations and wrongdoing by DOYNE in procuring mediation services, billing, protracting a mediation in weekly sessions over months to generate fees, conducing unauthorized activities beyond the contract, inserting himself into non-custody issues to create conflict, failing to follow through with promises made in the procurement of the mediation contract (FAC ¶ 814), and generally manipulating the mediation process to increase hostilities, expand and extend the conflict, and increase his fees. When STUART objected to this process and refused to pay for any more “sessions”, DOYNE immediately filed a false report with CPS that STUART “held his son upside down over a balcony.” These reports were determined to be false, and DOYNE knew them to be false when he made them. FAC ¶ 821. The claims against DOYNE are not for reporting activity, but commercial activity, fraud, breach of contract, unfair business practices based on bribery and extortion, state constitutional violations, and federal constitutional violations, and RICO (“DOYNE TERRORISM”). DOYNE does not identify which claim he attacks, but none of the claims in the FAC which are based on the DOYNE TERRORISM, including fraud, extortion, assault, kidnapping and deprivation of rights in are vulnerable to a state law defense against negligent reporting of child abuse. Immunity is not a defense to crime. U.S. v. Frega, supra. DOYNE is also sued for false advertising (COUNT 15) and prospective relief, to which no immunity can apply.
DOYNE asserts he is a “mandatory reporter” under Penal Code section 11165.7(21), which describes health care providers. He presumably relies on that category’s inclusion of “psychologist” or “therapist.” Mediators are not identified as mandatory reporters. The FAC does not assert DOYNE provided health care, therapy, or counseling services. DOYNE is not entitled to immunity as a mandatory reporter.
Further, state immunities are never a defense to liability for constitutional violations. In Buckheit v. Dennis, 713 F. Supp. 2d 910, 925 (N.D. Cal. 2010) the Northern District rejected the same argument DOYNE makes here, holding that section 11172 does not shield a defendant from deprivation under section 1983.
Several Defendants asserted what is known as a “Noerr-Pennington” defense, essentially alleging that they are immune because their activity was necessary for them to practice law. The opposition rebuffed this defense and contemplated what this means for divorce clients who might be considering hiring firms that claim that they can’t practice law unless they’re protected from liability for their fraud and extortion. “This was an interesting twist on a rarely-used defense” says Stuart. “Unfortunately for the defendants that assert the defense, they have to at the same time argue that they couldn’t do business unless they were protected from fraud and extortion. We contested the defense, but litigants who may be looking to hire these law firms should be aware that they’ve essentially admitted that they’re free to screw you over for everything you’re worth and walk away without fear of being sued” says Stuart. From the Opposition:
Several Defendants represented by Mr. Grebing assert an identical Noerr-Pennington defense. BLANCHET Doc. No. 146, 8:17-10:6; ALLIANCE Doc. No. 147 3:13-5; VIVIANO Doc. No. 148, 6:13-8:2. In so doing, Defendants advance the proposition that uniform practices constituting coordinated extortion, fraud, violence, and obstruction of justice inflicted on their own clients is necessary to protect their ability to practice before family courts, and is therefore “petitioning activity.” This admission that fraud and extortion is essential to their practices is insightful, and certainly information Sharon Blanchet, Ashworth, Blanchet, Christenson, & Kalemkiarian, LLP, Lori Clark Viviano, and Dr. Stephen Doyne of San Diego should perhaps pass on to their clients seeking information or reviews of these attorneys before being retained.
To fit the present Action within Noerr-Pennington, Defendants must establish that the activity they are accused of is “petitioning” activity protected by the First Amendment. Defendants fail to undertake this first step—bypassing any First Amendment analysis, and moving on to describing the relationship between the necessity for their illegal fraud and extortion on their own clients is to their ability to practice family law before their co-defendants in this lawsuit. This failure alone is sufficient grounds for denial.
But even a cursory review of the FAC reveals that it asserts acts that are not protected speech: Commercial fraud in engaging expert witnesses, extortion in secluding and enforcing the scheme, and violence against those who identify it upon revelation. Such is not “protected petitioning activity” BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002), (emphasis added). Noerr-Pennington is a constitutional doctrine, and its immunities can be no broader than the First Amendment on which it is based. Extortion and robbery (Count 11, Racketeering Count 4), fraud (Count 11, Racketeering Counts 1, 2), and defamation (Count 2) are not protected by the First Amendment. See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2544, 183 L. Ed. 2d 574 (2012) (“content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “ ‘historic and traditional categories [of expression] long familiar to the bar,’ ” Among these categories are . . . speech integral to criminal conduct, . . . fraud, true threats. . .”) (internal citations omitted). Needless to say—or perhaps it is appropriate to remind some present—assault (Count 1), kidnapping (Racketeering Count 3), kidnapping, false imprisonment, and related violence (Racketeering Counts 4, 5, 6) would exceed the behavior the Constitution tolerates as “expression.” Grayned v. City of Rockford, 408 U.S. 104, 116, (1972) (“Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment.”); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (speech incident to criminal conduct); United States v. O’Brien, 391 U.S. 367, 377 (1968) (regulation of non-expressive elements of expression permitted). Moreover, even if purely expressive, the most protection afforded to the fraudulent counsel accused in this case is that for commercial speech. See, e.g., Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), which permits a “balancing” test nothing close to blanket petitioning immunity sought by Defendants.
Finally, to the extent Defendants will insist that the Court of Appeal in Sosa extended First Amendment protection to fraud and extortion crimes under the federal criminal code, Defendants’ interpretation stands in conflict with Supreme Court precedent spanning decades. See, e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).
California Coalition and the hundreds of thousands of families and children it speaks for today and for years prior have abundant reason and legal status to explain to a jury in this courthouse how defendants collectively operate a despicable crime ring under color of law, comprised of evil hearts guided by deviant minds depriving millions of American families of their health, independence, livelihoods, and their children’s futures. Defendants’ day of reckoning to the victims of their heinous predation must, and will soon come.
“Overall the Family Court’s Omnibus was not a great effort” says Stuart. “These are good lawyers–dozens of them. We were disappointed that they seem to have misunderstood or just chose not to engage on the weightier legal issues. Their analysis was off mark and lightweight. They didn’t carry through on the thorough analysis the defenses they’re asserting require. They took the ‘low road’ in asking for sanctions in an initial pleading and the “ignore it and maybe it’ll just go away” approaches. Maybe they feel they can intimidate us or convince the District Judge to ignore or sanction us” says Stuart.
California Coalition faces an uphill battle in the case as do all civil rights plaintiffs, and in this case California Coalition is suing judges. The intimidation tactic could resonate with a judge sympathetic to her judicial colleagues. “It creates a dilemma–if Defendants are successful on the present record, we’re in for more expense and delay in a round of appeals at taxpayer expense” says Stuart. “If the judge orders another round of pleading to give Defendants a ‘second shot’ at the complaint, we face another thousand pages and what must be costing millions in taxpayer dollars in pleading toward what is inevitable already–the case is going into discovery sooner or later” says Stuart.
“We would have been happy to see sharpened attacks at this stage to narrow the focus of the lawsuit and move the ball down the field. Defendants at this stage typically get to chose which battles they want to fight at a pleading stage, versus which battles they can lose now in hopes of winning in discovery or pretrial motions. They can ‘prune’ the case, sharpen the issues, and move forward on shorter battle lines. But what we got were deflection and delay motions attempting to quash the entire action, and floundering ones at that” says Stuart.
“Defendants have had their shot, and appear to have wasted it. The responsible next step is to admit the complaint into discovery and save taxpayers and the Court time and expense of another round of motions or a drawn-out appeal. We can slug it out in pretrial motions once Defendants figure out what the case is about and settle on a plan of attack” says Stuart. Stuart says the Family Court defendants have good defenses on tactical issues they’ve missed or not yet asserted. “Until they devote more study or focus their attack, they’re going to continue to flounder.”
“Maybe they’re holding a trump card we haven’t seen yet” says Stuart. “We’ll know more when the Judge reacts to the papers in June.”
Hearing on the Omnibus against California Coalition, and California Coalition’s Opposition is schedule for June 6, 2014, at 2:00 p.m. in United States District Court, Southern District of California. Also on calendar: June 25, 2014 motion for preliminary injunction, and a June 27, 2014 motion for sanctions.