135 Memo Bierer

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 1 of 9
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Heather L. Rosing, Bar No. 183986

Daniel S. Agle, Bar No. 251090
Kyle T. Overs, Bar No. 286158
KLINEDINST PC
501 West Broadway, Suite 600
San Diego, California 92101
(619) 239-8131/FAX (619) 238-8707
hrosing@klinedinstlaw.com
dagle@klinedinstlaw.com
kovers@klinedinstlaw.com
Attorneys for Defendant
MARILYN BIERER d.b.a. BIERER
AND ASSOCIATES, erroneously sued
as BIERER AND ASSOCIATES, a
California Professional Corporation
KLINEDINST PC
501 WEST BROADWAY, SUITE 600
SAN DIEGO, CALIFORNIA 92101
UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CALIFORNIA COALITION FOR

FAMILIES AND CHILDREN., a
Delaware Public Benefit
Corporation, and COLBERN C.
STUART, an individual,,
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Plaintiffs,
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v.
SAN DIEGO COUNTY BAR
ASSOCIATION, a California
Corporation, et al.,
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Case No. 13-cv-1944 CAB (BLM)

POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO DISMISS
FIRST AMENDED COMPLAINT
Date:
Time:
Courtroom:
Judge:
Magistrate Judge:
Complaint Filed:
Trial Date:
June 6, 2014
2:00 p.m.
4C
Cathy Ann Bencivengo
Barbara L. Major
August 20, 2013
None set
Defendants.
[NO ORAL ARGUMENT UNLESS
REQUESTED BY THE COURT]
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Defendant Marilyn Bierer d.b.a. Bierer and Associates, erroneously sued as
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BIERER AND ASSOCIATES, a California Professional Corporation (Bierer),
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respectfully submits the following memorandum of points and authorities in
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support of her Motion to Dismiss the First Amended Complaint filed by Plaintiffs
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-1POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT
13-cv-1944 CAB (BLM)
KLINEDINST PC
California Coalition for Families and Children (CCFC) and Colbern C. Stuart
(Stuart) (collectively, Plaintiffs).1
Bierer herein joins and incorporates sections I, II, III, IV, and VI of
Defendants Omnibus Motion to Dismiss Plaintiffs First Amended Complaint.2
The following points and authorities are meant to supplement that Omnibus Brief.
I.
INTRODUCTION
Plaintiffs approximately 1,500 page First Amended Complaint (FAC) is a
nearly incomprehensible rambling of legal conclusions, excessive acronyms, and
definitional phrasings that requires the now 59 defendants and the Court to attempt
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to fish a gold coin from a bucket of mud. U.S. v. Lockheed-Martin Corp, 328
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F.3d 374, 379 (7th Cir. 2003). The FAC not only fails to make cognizable factual
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allegations against Bierer, it fails to even bring forth a plausible theory for
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recovery. Furthermore, most, if not all, of Plaintiffs claims are time-barred by the
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applicable statutes of limitations. Additionally, the FAC smacks with concerns of
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Plaintiffs standing to request the relief he seeks. Accordingly, the Court should
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grant Bierers motion to dismiss without leave to amend.
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II.
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ARGUMENT
A.
Dismissal is appropriate as the First Amended Complaint does
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not meet Federal Rule of Civil Procedure 8s requirements of a
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short and plain statement that rises to the level of plausibility.
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Bierer herein incorporates the arguments made in sections II and VI of

Defendants Omnibus Motion to Dismiss Plaintiffs First Amended Complaint.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a
short and plain statement of the claim showing that the pleader is entitled to relief.
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It is of note that Lexevia, PC (Lexevia) appears to no longer be a party to

this action, yet Lexevia is still referenced throughout the First Amended Complaint
and its2exhibits.
Bierer joins and incorporates the arguments of section IV in so much that
Plaintiffs lack jurisdiction under FRCP 12(b)(1) and to any extent that Plaintiffs
allege that Bierer is somehow responsible for orders and judgments that Plaintiffs
take issue with.
KLINEDINST PC
Although for the purposes of a motion to dismiss a court must take all of the
factual allegations in the complaint as true, it is not bound to accept as true a legal
conclusion couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause
of action will not do. Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
Furthermore, all civil complaints must state claims that rise beyond
speculation, to a level of plausibility. Ashcroft, supra, 556 U.S. at 679, 684. The
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task of determining plausibility requires a court to draw on its judicial experience
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and common sense in determining whether well-pled facts permit the court to
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infer more than the mere possibility of misconduct. Id. at 679. Failure to do so
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results in a complaint alleging, but not showing, that the pleader is entitled to relief
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under Federal Rule of Civil Procedure 8(a)(2). Id.
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As Plaintiffs fail to allege anything but unsupported conclusions against
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Bierer, the FAC should be dismissed. Indeed, the only arguably factual allegations
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against Bierer in the entire FAC appear to be: (1) her alleged activities involving
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an April 15, 2010 San Diego County Bar Association event; and (2) her
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representation of Stuarts ex-wife in a divorce proceeding in 2007. (FAC 237-
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250, 1007-1008.) In addition to not rising to the level of stating a claim against
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Bierer, these allegations are also clearly barred by the applicable statutes of
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limitation (as discussed further in section B of this motion).
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That said, assuming, arguendo, that the allegations against Bierer are
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considered factual in nature, the FAC still fails to rise to the level of plausibility.
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Although difficult to discern, it appears that the crux of the FAC boils down to: 1)
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Colbern Stuart was arrested at a family law seminar hosted by the San Diego
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County Bar Association in April 2010 (Request for Judicial Notice (RJN), Exs. A,
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B, C); and 2) the family law system is a massive conspiracy set out to violate
Plaintiffs rights. As none of these allegations meet the plausibility standard laid
out by the Supreme Court in Bell Atlantic Corp. and Ashcroft, dismissal is
appropriate.
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appropriate as the plaintiffs complaint lacked factual content to nudg[e] his
claim of purposeful discrimination across the line from conceivable to plausible.
Id. 683 (quoting Bell Atlantic Corp., supra, 550 U.S. at 570).
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KLINEDINST PC
In Ashcroft, the Supreme Court found that dismissal of an action was
Here, the FAC lacks any factual content necessary to even approach the line
of plausibility, much less nudge the claims across the line from conceivable to
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plausible. Plaintiffs allege that everyone and anyone involved in the family law
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process is part of a grandiose scheme against them and their rights. Put simply,
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there are no factual allegations in the FAC to support this contention against any of
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the defendants, let alone Bierer. The lack of factual allegations aside, the alleged
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scheme and conspiracy against Plaintiffs is so implausible as to borderline on
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ludicrous. Instead, a much more likely explanation is that Plaintiffs, including
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Colbern Stuart, had poor experiences with the family law system, and now hold
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a grudge against the system as a whole.
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B.
The First Amended Complaints claims relating to the Stuart
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Assault and Bierers professional duties are barred by the
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applicable statutes of limitations.
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Bierer herein incorporates the arguments made in section III of Defendants

Omnibus Motion to Dismiss Plaintiffs First Amended Complaint.
Additionally, the FACs claims relating to the Stuart Assault and Bierers
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professional duties should be dismissed as they are barred by the applicable
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statutes of limitations. Plaintiffs claims brought under Sections 1983 and 1985
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fall under Californias applicable statute of limitations. Usher v. City of Los
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Angeles, 828 F.2d 556, 558 (9th Cir. 1993); Taylor v. Regents of Univ. of Cal., 993
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F.2d 710, 711-12 (9th Cir. 1993). In California, the statute of limitations for
personal injury claims is two years. Cal. Code Civ. Proc. 335.1. The statute of
limitations for any claim against an attorney arising from professional services,
other than fraud, is one year. Cal. Code Civ. Proc. 340.6.
KLINEDINST PC
Here, Plaintiffs assert multiple claims against Bierer relating to the Stuart
Assault. 3 These claims are therefore governed by Californias personal injury
statute of limitations. As the alleged assault took place on April 15, 2010,
Plaintiffs had to file their Complaint by April 15, 2012. Instead, the original
Complaint in this action was filed on August 20, 2013. All of Plaintiffs causes of
action relating to the Stuart Assault are therefore barred by the statute of
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limitations.
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Any claims that are brought against Bierer for allegedly breaching her
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professional duties are also time-barred. (See FAC 904-907.) As Bierer is an
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attorney, any alleged breach falls under the legal malpractice statute of limitations
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of one year. The only directly attributable allegations against Bierer are that she
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was involved somehow in the coordination of the Stuart Assault and that she
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represented Stuarts ex-wife in a 2007 divorce proceeding. (FAC 237-250,
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1007-1008.) Given that this representation of Stuarts ex-wife took place in 2007
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and that the alleged assault took place on April 15, 2010, the statute of limitations
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had long run before Plaintiffs original Complaint was filed on August 20, 2013.
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As such, any claims relating to Bierers professional duties are also barred by the
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statute of limitations.
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C.
The First Amended Complaints claim relating to the Lanham
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Act fails to state a claim upon which relief can be granted.
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Bierer herein incorporates the arguments made in sections II and VI(B) of
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As it is difficult to discern what claims are actually being made against Bierer,
reference is made to all claims. That said, it appears the FAC brings Counts 1, 2,
9, 10, 12, 13, 15, and RICO counts 2, 3, 5, 6, 7, 8, 9, 10, and 11 against Bierer.
Since all of these Counts appear to relate to the Stuart Assault, they are all timebarred.
KLINEDINST PC
Further, the FACs claim relating to the Lanham Act (Count 15) should be
dismissed as it fails to state a claim upon which relief can be granted. There are no
factual allegations against Bierer as to what words, terms, names, symbols, and
devices were used by Bierer and how they were false or misleading; rather,
Plaintiffs rely solely on generalized conclusions and the recitation of the elements
of a Lanham Act claim. (FAC 904-914.) There are also no factual allegations
as to how Plaintiffs compete in the same marketplace as Bierer. This is not
surprising given that Plaintiffs do not compete in the same family law industry as
Bierer. (See FAC, Ex. 24, stating that Stuart practices intellectual property law;
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RJN, Exs. D, E, F showing that Stuart is disbarred not only in California, but also
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Arizona and Nevada.4) As such, dismissal of Count 15 against Bierer is
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appropriate.
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D.
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by Bierer.
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The First Amended Complaint fails to allege any RICO violations
Bierer herein incorporates the arguments made in sections II and VI(C) of

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The FAC fails to state a claim for RICO violations against Bierer as it fails
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to bring forth any factual allegations involving Bierer. 18 U.S.C. 1962(c) makes it
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unlawful for a person associated with a RICO enterprise that is engaged in, or the
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activities which affect, interstate or foreign commerce, to conduct or
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participatein the conduct of such enterprises affairs through a pattern of
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racketeering activity. 18 U.S.C. 1962(d) makes it unlawful to conspire to commit
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a violation of 18 U.S.C. 1962(c). Further, civil RICO claims must show: (1) the
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existence of a RICO enterprise; (2) the existence of a pattern of racketeering
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activity; (3) a nexus between the defendant and either the pattern of racketeering
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activity or the RICO enterprise; and (4) resulting injury to plaintiff, in his
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It is certainly not lost on Bierer that the First Amended Complaint, signed by
Colbern Stuart, contains flat-out lies about Stuart being a licensed attorney in
California, Arizona, and Nevada. (FAC 3, Ex. 24.)
KLINEDINST PC
business or property. Occupational-Urgent Health Sys., Inc. v. Sutro & Co.,
711 F.Supp. 1016, 1021 (E.D. Cal. 1989). To satisfy the RICO pattern
requirement, a plaintiff must plead two or more predicate acts with specificity,
while identifying the individual actions of each defendant sufficient to constitute a
pattern of racketeering activity. Blake v. Dierdorff, 856 F.2d 1365, 1370 (9th Cir.
1988).
Here, the FAC fails to state any specific facts regarding the alleged predicate
acts of Bierer. In fact, the only references to actions by Bierer are found in a count
that Plaintiffs do not bring against Bierer. (FAC 1007-1008.) As such, all of
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the RICO claims against Bierer fail to state a claim upon which relief can be
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granted.
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Further, Plaintiffs RICO claims fail as they do not make factual allegations
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regarding the effect the alleged racketeering activities have on interstate and
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foreign commerce. In the Ninth Circuit, the determination of interstate or foreign
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commerce for the purpose of RICO is as strict as that for the purpose of the
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Sherman Act. Musick v. Burke, 913 F.2d 1390, 1398 (9th Cir. 1990). Under this
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standard, local activities that have incidental effects on interstate commerce do
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not meet the interstate or foreign commerce requirement of a RICO claim. Id. The
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plaintiff must therefore make a showing of a substantial effect on interstate or
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foreign commerce by the defendants activities. Id. at 1395. In Musick, the Court
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found that the interstate requirement was not met even though defendants
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purchased the majority of their products through interstate commerce. Id. at 1397.
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Here, there are no factual allegations that Bierer or any of her alleged RICO
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enterprise members are involved in any racketeering activities outside of the
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state of California. In fact, it appears that all allegations relate to activities that
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KLINEDINST PC
took place in the San Diego, California area.5 As such, the FAC also fails to state a
claim under 18 U.S.C. 1962(d).
E.
Plaintiffs cannot bring claims for prospective relief as they lack standing.
To declare injunctive or declaratory relief, a plaintiff must show both that: 1) he
has suffered or is threatened with a concrete and particularized legal harm; and
2) a sufficient likelihood that he will again be wronged in a similar way. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983). As such, [t]o obtain injunctive relief, a reasonable
Plaintiffs lack standing to assert any claims for prospective relief.
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showing of a sufficient likelihood that plaintiff will be injured again is necessary.
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Kruse v. Hawaii, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks and
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alterations omitted). A mere interest in the faithful execution of the Constitution or
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other laws, undifferentiated from the public at large, is not sufficient to show
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standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106 (1998).
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At the end of their FAC, Plaintiffs assert a claim for prospective relief
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against all defendants, including asking the Court to enjoin defendants from further
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alleged violations of Plaintiffs rights. (FAC 1197, 1202-1203.) Similar to
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Plaintiffs conclusory allegations of prior violations of their rights by Bierer, is the
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absence of any factual allegations by Plaintiffs that they are likely to suffer future
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injury. Plaintiffs desires to have this countrys laws and Constitution upheld,
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while at least facially noble, are not enough to show standing. Indeed, a plaintiff
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seeking injunctive relief must demonstrate a real or immediate threat that
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defendants will again subject him to [the harm complained of]. B.C. v. Plumas
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In an attempt to overcome these solely local activities, Plaintiffs rely on the

implausible assertions that these RICO enterprises are involved in interstate and
foreign commerce as domestic violence orders may be enforced in other states,
child support can be enforced in other countries by revoking passports, child
support awards can be enforced in U.S. Military Courts, and family affairs is a
worldwide industry. (FAC 962.) If these allegations were enough to establish
interstate or foreign commerce, every single action by any person would constitute
interstate or foreign commerce because one of the actors could potentially move to
a different state or country.
Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The FAC fails to make
any such allegation. As such, Plaintiffs lack standing to bring this action and it
should be dismissed.
III.
CONCLUSION
Based on the foregoing reasons, as well as those expressed in Defendants
Omnibus Motion to Dismiss, Bierer respectfully requests the Court dismiss
Plaintiffs First Amended Complaint with prejudice.
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KLINEDINST PC
KLINEDINST PC
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DATED: April 10, 2014
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By: s/ Daniel S. Agle

Heather L. Rosing
Daniel S. Agle
Kyle T. Overs
Attorneys for Defendant
MARILYN BIERER d.b.a. BIERER
AND ASSOCIATES, erroneously
sued as BIERER AND ASSOCIATES,
a California Professional Corporation
15869676v1
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135 Memo Bierer

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Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 1 of 9

Heather L. Rosing, Bar No. 183986

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR

Case No. 13-cv-1944 CAB (BLM)

Defendant Marilyn Bierer d.b.a. Bierer and Associates, erroneously sued as

BIERER AND ASSOCIATES, a California Professional Corporation (Bierer),

respectfully submits the following memorandum of points and authorities in

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 2 of 9

(Stuart) (collectively, Plaintiffs).1

Defendants Omnibus Motion to Dismiss Plaintiffs First Amended Complaint.2

Plaintiffs approximately 1,500 page First Amended Complaint (FAC) is a

nearly incomprehensible rambling of legal conclusions, excessive acronyms, and

applicable statutes of limitations. Additionally, the FAC smacks with concerns of

grant Bierers motion to dismiss without leave to amend.

Dismissal is appropriate as the First Amended Complaint does

not meet Federal Rule of Civil Procedure 8s requirements of a

short and plain statement that rises to the level of plausibility.

Bierer herein incorporates the arguments made in sections II and VI of

It is of note that Lexevia, PC (Lexevia) appears to no longer be a party to

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 3 of 9

offers labels and conclusions or a formulaic recitation of the elements of a cause

U.S. 544, 555 (2007)).

task of determining plausibility requires a court to draw on its judicial experience

under Federal Rule of Civil Procedure 8(a)(2). Id.

As Plaintiffs fail to allege anything but unsupported conclusions against

representation of Stuarts ex-wife in a divorce proceeding in 2007. (FAC 237-

limitation (as discussed further in section B of this motion).

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 4 of 9

appropriate as the plaintiffs complaint lacked factual content to nudg[e] his

claim of purposeful discrimination across the line from conceivable to plausible.

In Ashcroft, the Supreme Court found that dismissal of an action was

scheme and conspiracy against Plaintiffs is so implausible as to borderline on

ludicrous. Instead, a much more likely explanation is that Plaintiffs, including

a grudge against the system as a whole.

The First Amended Complaints claims relating to the Stuart

Assault and Bierers professional duties are barred by the

applicable statutes of limitations.

Bierer herein incorporates the arguments made in section III of Defendants

professional duties should be dismissed as they are barred by the applicable

fall under Californias applicable statute of limitations. Usher v. City of Los

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 5 of 9

Assault. 3 These claims are therefore governed by Californias personal injury

professional duties are also time-barred. (See FAC 904-907.) As Bierer is an

represented Stuarts ex-wife in a 2007 divorce proceeding. (FAC 237-250,

The First Amended Complaints claim relating to the Lanham

Act fails to state a claim upon which relief can be granted.

Bierer herein incorporates the arguments made in sections II and VI(B) of

Defendants Omnibus Motion to Dismiss Plaintiffs First Amended Complaint.

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 6 of 9

as to how Plaintiffs compete in the same marketplace as Bierer. This is not

Arizona and Nevada.4) As such, dismissal of Count 15 against Bierer is

The First Amended Complaint fails to allege any RICO violations

Bierer herein incorporates the arguments made in sections II and VI(C) of

activities which affect, interstate or foreign commerce, to conduct or

participatein the conduct of such enterprises affairs through a pattern of

racketeering activity. 18 U.S.C. 1962(d) makes it unlawful to conspire to commit

existence of a RICO enterprise; (2) the existence of a pattern of racketeering

Case 3:13-cv-01944-CAB-BLM Document 135-1 Filed 04/10/14 Page 7 of 9

business or property. Occupational-Urgent Health Sys., Inc. v. Sutro & Co.,

while identifying the individual actions of each defendant sufficient to constitute a

foreign commerce. In the Ninth Circuit, the determination of interstate or foreign

standard, local activities that have incidental effects on interstate commerce do