Jack H. Poster v. Rialto Unified School District et al

NOTICE OF MOTION AND MOTION to Dismiss Complaint

C.D. Cal.September 26, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 FAGEN FRIEDMAN & FULFROST, LLP Kimberly A. Smith, SBN 176659 ksmith@f3law.com Wesley D. King, SBN 280784 wking@f3law.com Stephanie S. Baril, SBN 259581 sbaril@f3law.com 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 Phone: 323-330-6300 Fax: 323-330-6311 Attorneys for Defendants, Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachel Conner and Joe Martinez UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Dr. Jack H. Poster, Plaintiff, vs. Rialto Unified School District, a public entity, Dr. Harold Cebrun, Nancy G. O' Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor, Joe W. Martinez, The Department of California Teaching Credentialing, and DOES 1-50 Defendants. CASE NO. CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT Filed concurrently with (1) Memorandum of Points and Authorities, (2) Declaration of Wesley D. King, (3) Request for Judicial Notice, (4) [Proposed] Orders Date: October 31, 2016 Time: 10:00 a.m. Crtrm.: 4 The Hon. André Birotte, Ctrm. 4 Magistrate Judge Hon. David Bristow, Ctrm. 3 Action Filed: August 26, 2016 Trial Date: None Set Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 1 of 6 Page ID #:1109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 TO ALL PARTIES AND THEIR COUNSELS OF RECORD: PLEASE TAKE NOTICE THAT on October 31, 2016, at 10:00 a.m., or as soon thereafter as counsel may be heard, in the courtroom of the Honorable André Birotte, located in the United States Courthouse, Courtroom 4 (2nd Floor), 312 N. Spring St., Los Angeles, CA 90012, defendants Rialto Unified School District (“District”), Nancy G. O' Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor and Joe W. Martinez (collectively “Defendants” or “District Defendants”) will and hereby do move this Court to dismiss Plaintiff’s First Amended Complaint (“FAC”) pursuant to Rule 12 (b)(1), (b)(6), and (b)(5), and to strike portions of Plaintiff’s FAC pursuant to Rule 12 (f) of the of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) This motion is made following a September 19, 2016 conference letter, pursuant to L.R. 7-3, between Plaintiff and counsel for District Defendants. The Parties were unable to reach a resolution which would have eliminated the necessity for a hearing on this motion. District Defendants move to dismiss Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(1) due to lack of subject matter jurisdiction on the grounds that District Defendants are immune from suit in this Court pursuant to Eleventh Amendment immunity, and that Plaintiff failed to exhaust his administrative remedies through the California Commission on Teacher Credentialing before bringing suit in this Court. (Cal. Ed. Code §§44244.1 and 44246) See also 72 Cal. Op. Att'y Gen. 159 (1989) [“The Commission is also responsible for denying, suspending, and revoking teacher credentials... ( 44242-44246; 61 Ops.Cal.Atty.Gen. 353, 363364 (1978).)”] Woodford v. Ngo, (2006) 548 U.S. 81, 88-89, citing McKart v. United States, 395 U.S. 185, 193 (1969). [“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.” McKart, 395 U.S. 185 at 193. “The doctrine provides ‘that no one is entitled to judicial relief for a Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 2 of 6 Page ID #:1110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Id.] District Defendants also move to dismiss Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Plaintiff has not pleaded sufficient facts to support his claims that District Defendants violated 18 U.S.C. 1962 et seq., deprived Plaintiff of his 5th and 14th Amendment rights to due process, and violated 42 U.S.C. § 1983. Further, Plaintiff fails to plead sufficient facts to support his claims that District Defendants are liable for four “counts” that Plaintiff lists on [FAC 4:17-36] 1 including, “general fraud and false statements,” “contracts,” “conspiracy” and “harassment.” Moreover, as a part of this motion to dismiss pursuant to Rule 12(b)(6), District Defendants request this Court take judicial notice of a resignation agreement and general release Plaintiff signed on July 25, 2013, which precludes the filing of Plaintiff’s FAC. Additionally, District Defendants move to dismiss Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Despite several communications with Plaintiff regarding the proper service of process of the FAC, Plaintiff attempted service by mail, excluded the Notice of Acknowledgment form or any notice of its equivalent, refused to use the Judicial Council Notice of Acknowledgment form or its equivalent when District Defendants supplied it to him and instead sent a copy of the original complaint by mail to District Defendants’ counsel and insisted counsel download the FAC from the Court website if it wanted a copy. District Defendants alternatively and additionally move this Court for an order pursuant to Fed. R. Civ. P. 12(f) to strike improper, immaterial and redundant matters from the FAC. Specifically, Defendants seek to strike Plaintiff’s reference 1 Plaintiff has not numbered pleading paragraphs, so allegations are identified by page/line numbers. Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 3 of 6 Page ID #:1111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 to 42 U.S.C. § 1983 on the FAC caption page and three duplicative 18 U.S.C. § 1962 “counts” against District Defendants on FAC 9:5-29. The precise material which Defendants seek to strike is as follows: Reference to “Section 1983 of Title 42 of the United States Code” 1. “also under Section 1983 of Title 42 of the United States Code.” [FAC 1:41-43.] Count Two: “18 U.S.C. §§ 1962” 2. “18 U.S.C. §§ 1962 … Plaintiff now re-alleges each and every allegation as set forth above, and hereby incorporates same by reference, as if all were set forth fully herein and the Original Complaint. Substance prevails over form.” [FAC 9:9-13.] Count Three: “Conspiracy to Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1962” 3. “Conspiracy to Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1962 … Plaintiff now re-alleges each and every allegation as set forth above, and hereby incorporates same by reference, as if all were set forth fully herein and the Original Complaint. Substance prevails over form.” [FAC 9:17-21.] Count Four: “Conspiracy to Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1962” 4. “Conspiracy to Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1962 … Plaintiff now re-alleges each and every allegation as set forth above, and hereby incorporates same by reference, as if all were set forth fully herein and the Original Complaint. Substance prevails over form.” [FAC 9:23-29.] “On Count Two: Remains the same as the Original Complaint” 5. “On Count Two: Remains the same as the Original Complaint.” [FAC 10:5.] Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 4 of 6 Page ID #:1112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 “On Count Three: Remains the same as the Original Complaint” 6. “On Count Three: Remains the same as the Original Complaint.” [FAC 10:6.] “On Count Four: Remains the same as the Original Complaint” 7. “On Count Four: Remains the same as the Original Complaint.” [FAC 10:7.] This motion will be based on this Notice of Motion and Motion, the Memorandum of Points and Authorities filed herewith, and the pleadings and papers filed herein, and such other and further documentary and/or oral evidence as may be presented in connection with the hearing on this motion. DATED: September 26, 2016 Respectfully submitted, FAGEN FRIEDMAN & FULFROST, LLP By: s/Wesley King Wesley D. King Attorneys for Defendant Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachael Conner and Joe Martinez Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 5 of 6 Page ID #:1113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 6300 Wilshire Boulevard, Suite 1700, Los Angeles, CA 90048. On September 26, 2016, I served true copies of the following document(s) described as DISTRICT DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT on the interested parties in this action as follows: Dr. Jack Poster 819 Anderson Court Redlands, CA 92374 jhp5@earthlink.net William Gardner william.gardner@doj.ca.gov BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 26, 2016, at Los Angeles, California. Rebeccah Leal Case 5:16-cv-01839-AB-DTB Document 33 Filed 09/26/16 Page 6 of 6 Page ID #:1114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 FAGEN FRIEDMAN & FULFROST, LLP Kimberly A. Smith, SBN 176659 ksmith@f3law.com Wesley D. King, SBN 280784 wking@f3law.com Stephanie S. Baril, SBN 259581 sbaril@f3law.com 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 Phone: 323-330-6300 Fax: 323-330-6311 Attorneys for Defendants, Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachel Conner and Joe Martinez UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Dr. Jack H. Poster, Plaintiff, vs. Rialto Unified School District, a public entity, Dr. Harold Cebrun, Nancy G. O’ Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor, Joe W. Martinez, The Department of California Teaching Credentialing, and DOES 1-50 Defendants. CASE NO. CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT Filed concurrently with (1) Notice of Motion, (2) Request for Judicial Notice, (3) Declaration of Wesley D. King, (4) [Proposed] Orders Date: October 31, 2016 Time: 10:00 a.m. Crtrm.: 4 The Hon. Andre Birotte, Dept. 4 Action Filed: August 26, 2016 Trial Date: None Set Defendant’s Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachel Conner and Joe Martinez ( hereinafter collectively referred to as “District Defendants”) hereby submit the following Memorandum of Points and Authorities in Support of their Motion to Dismiss and/or Strike Plaintiff’s First Amended Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 1 of 28 Page ID #:1115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Complaint. Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 2 of 28 Page ID #:1116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. SUMMARY OF ALLEGATIONS ................................................................... 3 III. ARGUMENT .................................................................................................... 5 A. The FAC Must be Dismissed for Lack of Subject Matter Jurisdiction [Fed R. Civ. P. 12(b)(1)] ..................................................... 5 1. Plaintiff’s claims are barred by the doctrine of Eleventh Amendment immunity .................................................................. 5 a. Plaintiff’s Claims Against the Individual Named Defendants and Simply Claims Against the District and Must be Dismissed....................................................... 6 2. Plaintiff’s Failure to Exhaust his Administrative Remedies Bar His 5 th and 14 th Amendment Claims ...................................... 7 B. The FAC Fails to State a Claim Upon Which Relief Can Be Granted [Fed R. Civ. P. 12(b)(6)] ........................................................... 8 1. Plaintiff Fails to Plead Sufficient Facts to Support His RICO Claim And Thus This Claim Must Be Dismissed .............. 9 2. Plaintiff’s 5th and 14th Amendment Claims Must Be Dismissed For Failure to State a Claim ...................................... 12 3. Aside From 11th Amendment Immunity, Plaintiff’s 42 U.S.C. § 1983 Claim is Unsupported By Any Facts .................. 13 4. Plaintiff’s “Counts” of “General Fraud and False Statements,” “Contracts,” “Conspiracy” and “Harassment are Unsupported By Any Facts ................................................... 14 5. Plaintiff’s Entire Lawsuit Must Be Dismissed Because He Voluntarily Entered Into a Resignation and General Release Agreement Covenanting to Release District Defendants From All Actions and Proceedings ......................... 15 C. The FAC Must be Dismissed for Insufficient Service of Process [Fed. R. Civ. P. 12(b)(5)] ...................................................................... 16 1. Any Attempt by Plaintiff to Serve The First Amended Complaint By Mail is Insufficient and Must be Disregarded ................................................................................. 17 D. Portions of the FAC Must be Stricken as Immaterial and Redundant to Plaintiff’s Lawsuit [Fed R. Civ. P. 12(f)] ....................... 18 1. By Merely Mentioning 42 U.S.C. § 1983 Only Once And Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 3 of 28 Page ID #:1117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Failing to Allege Facts to Support the Claim, the Reference to 42 U.S.C. § 1983 is Immaterial to the Action and Should be Stricken ............................................................... 19 2. Counts Two, Three and Four Should be Stricken from the FAC Because They Merely Re-State Count One ....................... 19 IV. CONCLUSION ............................................................................................... 20 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 4 of 28 Page ID #:1118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................... 8, 9, 11 Belanger v. Madera Unified School Dist., 963 F.2d 248 (9th Cir.1992) ................................................................................... 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................. 8 Brunius v. Parrish, (2005) 132 Cal. App. 4th 838 ................................................................................... 6 Cardenas v. Chicago, (7th Cir. 2011) 646 F3d 1001 ................................................................................. 17 Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980) ................................................................................... 14 Erickson v. Pardus, 551 U.S. 89 (2007) ................................................................................................... 9 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) .......................................................................... 18, 19 Grimmett v. Brown, 75 F.3d 506 (9th Cir. 1996) .................................................................................... 10 Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 130 S. Ct. 983, 175 L. Ed. 2d 943 (2010) ........................................... 12 Ingram v. Grant Joint Union High Sch. Dist., No. CIV S082490FCDDADPS, 2009 WL 2941463 (E.D. Cal. Sept. 10, 2009) ... 14 Jerves v. United States, 966 F.2d 517 (9th Cir. 1992.) ................................................................................... 5 Johnson v. Fed. Home Loan Mortgage Corp., 793 F.3d 1005 (9th Cir. 2015) ................................................................................ 15 Kirchmann v. Lake Elsinore Unified Sch. Dist., 83 Cal. App. 4th 1098 (2000) ............................................................................... 5, 6 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .................................................................................. 15 May v. Enomoto, 633 F.2d 164 (9th Cir.1980) ................................................................................... 14 McAllister v. Los Angeles Unified Sch. Dist., (2013) 216 Cal. App. 4th 1198 ................................................................................. 7 McKart v. United States, 395 U.S. 185 (1969) ................................................................................................. 8 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 5 of 28 Page ID #:1119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Mid-Continent Wood Products, Inc. v. Harris, (7th Cir. 1991) 936 F.2d 297 .................................................................................. 16 Olson v. Federal Election Commission, (D.D.C. 2009) 256 FRD 8 fn.3 ............................................................................... 16 Pitts v. County of Kern, (1998) 17 Cal. 4th 340 .............................................................................................. 6 Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) .............................................. 14 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) .......................................... 10 Sliger v. Prospect Mortgage, LLC, 789 F.Supp.2d 1212 (E.D.Cal. 2011) ........................................................................ 18 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) .................................................................................... 9 Thornton v. Solutionone Cleaning Concepts, Inc., 2007 WL 210586 (E.D.Cal. Jan. 26, 2007) ............................................................ 19 Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219 (E.D. Cal. 2009) .................................................................... 6 West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ............................................ 13 Wilkerson v. Butler, 229 F.R.D. 166 (E.D. Cal. 2005) ........................................................................... 19 Will v. Michigan Dept' of State Police, (1989) 491 U.S. 58 ............................................................................................... 6, 7 Woodford v. Ngo, (2006) 548 U.S. 81 ................................................................................................... 8 Young v. City of Visalia, 687 F. Supp. 2d 1141 (E.D. Cal. 2009) .................................................................... 8 Statutes 18 U.S.C. 1962 ................................................................................................ 18 U.S.C. § 1961 (1) .................................................................................................. 10 18 U.S.C. § 1961 (5) .................................................................................................... 9 18 U.S.C. §§ 1964(c), 1962(c) ..................................................................................... 9 18 U.S.C.A. §§ 1961, 1962, 1964 ...................................................................... 5, 8, 12 2,9,10,14,19 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 6 of 28 Page ID #:1120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 42 U.S.C. § 1983 .................................................................................. 2,5,6,7,12,13,17 Cal. Code of Civ.Pro. section 415.30 .............................................................. 3, 15, 16 Rules Fed R. Civ. P. 12(b)(1) ......................................................................................... 1, 4 Fed R. Civ. P. 12(b)(6) ............................................................................................. 7 Fed R. Civ. P. 12(f) ................................................................................................. 16 Fed. R. Civ. P. 12(b)(5) .................................................................................... 15, 16 Fed. R. Civ. P. 8(a)(2) .................................................................................................. 7 Fed. R. Civ. P. 4(j) ............................................................................................... 15, 16 Fed R. Civ. P. 4 ............................................................................................................ 3 Fed. R. Civ. P. 12 ....................................................................................................... 15 Other Authorities Cal. Ed. Code section 44939................................................................................ 11, 12 Cal. Ed. Code §§44244.1 and 44246 ........................................................................... 6 Cal. Ed. Code section 44939(b) and 44944 ............................................................... 12 Title 5, California Code of Regulations, Section 80303 ........................................... 14 61 Ops.Cal.Atty.Gen. 353 …………………………………………………………..6 72 Cal. Op. Att'y Gen. 159 (1989) ……………………………………………… 6, 7 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 7 of 28 Page ID #:1121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 I. INTRODUCTION Plaintiff Jack H. Poster (“Plaintiff”) brings the present lawsuit alleging defendants Rialto Unified School District (“District”), Nancy G. O' Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor and Joe W. Martinez (collectively “District Defendants”) participated in a “widespread criminal enterprise” with the “primary objective…to inflict severe and sustained economic hardship upon Plaintiff, with the intent of impairing, obstructing, preventing and discouraging Plaintiff from writing, publishing, investigating and conducting judicial activism as a qualified teacher.” [FAC 2:24-3:2.] District Defendants best understand Plaintiff RICO claim as follows: Rialto Unified School District, District employee Defendants and the California Commission on Teacher Credentialing (“CTC”) are part of an criminal enterprise affecting interstate commerce. [FAC 3:4-22.] The enterprise is that if the California Commission on Teacher Credentialing ultimately revokes Plaintiff’s teaching and administrative credentials, it will keep Plaintiff from being hired “in any of the 50 states or territories under the United States Department of Education.” [FAC 3:4-9.] All defendants, Plaintiff alleges, were employed by the enterprise, all defendants were or are employees of Rialto Unified School District, and the pattern of racketeering activity is that all District Defendants participated in more than two acts “as will be present through depositions and/or direct testimony and written statements (some knowingly falsified.)” [FAC 3:4-22.] Plaintiff also alleges that the CTC and District Defendants violated Plaintiff’s 5 th and 14 th Amendment due process rights. [FAC 6:6-15; 7:3-9.] Plaintiff filed the original complaint August 26, 2016, and four days later, filed the First Amended Complaint (“FAC”) on August 30, 2016. In the FAC, Plaintiff added two defendants, District Defendant Joe W. Martinez and the CTC. Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 8 of 28 Page ID #:1122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 The FAC omits content from the original complaint and instead frequently refers to the original complaint in attempts to incorporate the original complaint by reference. District Defendants now move the Court to dismiss, with prejudice, Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(1) due to lack of jurisdiction on the grounds that District Defendants are immune from suit in this Court pursuant to Eleventh Amendment immunity. Further, Plaintiff has failed to exhaust his administrative remedy of completing his appeal of the revocation of his teaching license before the CTC before bringing suit in this Court. District Defendants also move to dismiss Plaintiff’s FAC, with prejudice, for failure to state a claim. Plaintiff has not alleged sufficient facts to support a claim that District Defendants violated 18 U.S.C. 1962 et seq., deprived Plaintiff of his 5 th and 14 th Amendment rights to due process, violated 42 U.S.C. § 1983 or are liable for “counts” of “general fraud and false statements,” “contracts,” “conspiracy” and “harassment.” [FAC 4:17-36.] In support of District Defendants’ motion to dismiss with prejudice, District Defendants also request this Court take judicial notice of a July 25, 2013 resignation agreement and general release where Plaintiff agreed not to sue Rialto Unified School District and its employees. 1 District Defendants also move to dismiss for insufficient service of process. Despite several communications with Plaintiff regarding proper service of process, Plaintiff attempted service by mail, excluded the requisite Notice of Acknowledgment form or any notice of its equivalent, refused to use the Judicial Council form when District Defendants supplied him with a copy, mailed the initial complaint to District Defendants’ counsel’s office and insisted District Defendants’ counsel download the FAC if it wanted a copy. Finally, in the alternative and in addition to the motions to dismiss the FAC, 1 District Defendants have concurrently filed a separate Request for Judicial Notice with this motion. Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 9 of 28 Page ID #:1123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 District Defendants move this Court to strike improper, immaterial and redundant matters from the FAC. Specifically, District Defendants request that Plaintiff’s mention of 42 U.S.C. §1983 on [FAC 1:41-43] and “Count Two,” “Count Three,” and “Count Four” [FAC 9:5-29, 10:5-7] against District Defendants be stricken. II. SUMMARY OF ALLEGATIONS The original complaint and FAC are difficult to comprehend due to Plaintiff’s narrative style. His complaint, however, can be summarized as follows: Plaintiff alleges all Defendants conspired to retaliate against him, a “qualified…teacher” by “obstruction of justice, obstruction of civil investigations, including the California Employment Development Department and Commission on Teacher Credentialing, obstruction of state and local law enforcement, general fraud and falsification of documents, false statements to the aforementioned state agencies, forcing an illegal “voluntary” contract 2 between Plaintiff and all Defendants, conspiracy by all Defendants and harassment.” [FAC 2:11-20.] Plaintiff alleges the “enterprise” affects interstate commerce in that if the California Commission on Teacher Credentialing (“CTC”) succeeds in removing his teaching and administrative licenses, he can no longer be hired in any of the 50 states under the United States Department of Education. 3 [FAC 3:4-9.] Plaintiff also contends that the Defendants participated in the enterprise by giving depositions, testimony and written statements, [which were presumably part of the investigation which may ultimately lead to suspension or revocation of his credential.] [FAC 3:13-22.] Additionally, Plaintiff claims the CTC violated his 5th and 14th Amendment rights by preventing the admission of documents and witnesses into evidence at 2 The contract to which Plaintiff refers is presumably the settlement agreement that is the subject of Defendants' request for judicial notice. 3 District Defendants note the CTC does not have authority over teacher licensing outside California, and the United States Department of Education is not involved in the hiring or firing of teachers. Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 10 of 28 Page ID #:1124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Plaintiff’s administrative hearing. [FAC 6:6-15.] Plaintiff also asserts that the CTC engaged in a conspiracy, [FAC 5:10-12.] and that the District’s Board and Superintendent violated his 5th and 14th Amendment rights by suspending him without pay and approving dismissal. [FAC 7:3-9.] Finally, Plaintiff claims that several District employees “impeached and perjured” themselves at his administrative hearing. [FAC 7:13-26.] While Plaintiff filed his original complaint on August 26, 2016 and the FAC on August 30, 2016, Plaintiff never completed proper service according to FRCP 4 and Cal. Code of Civ.Pro. section 415.30. Instead, Plaintiff sent District Defendants the original complaint and summons by certified mail with return receipt requested and failed to include two copies of the notice and acknowledgment form, or some notice with required statutory language with a return envelope. (Declaration of Wesley D. King [“King Decl.”] at ¶¶ 6, 11.]) (see Docket 13-20.) Counsel for District Defendants instructed him as to the proper service procedures, sending Plaintiff the text of Cal.CodeCiv.Pro. 415.30 and a copy of the Notice and Acknowledgement (CV-21) form and alternatively, offered to accept proper service by email. [King Decl. at ¶¶ 6, 9.] Plaintiff refused to agree to use the CV-21 form or to officially serve process of the FAC via email, and on August 9, 2016, told District Defendants’ counsel to download the FAC from the Central District website directly. [King Decl. at ¶¶ 7, 10.] Plaintiff mailed a hard copy of the initial complaint only to District Defendants’ counsel’s office, which was received on September 13, 2016 along with eight unsigned “Proof of Service - Acknowledgment of Service” forms for eight of nine District Defendants. [King Decl. at ¶ 13.] Attached to each was a Return Receipt for Merchandise signed and dated September 2, 2016. [King Decl. at ¶ 13.] Despite several communications with Plaintiff, District Defendants came to an impasse communicating with Plaintiff with regard to proper service of his FAC and now proceed via this present motion to Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 11 of 28 Page ID #:1125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 dismiss the FAC for insufficient service of process, among other bases for dismissal and/or striking. III. ARGUMENT A. The FAC Must be Dismissed for Lack of Subject Matter Jurisdiction [Fed R. Civ. P. 12(b)(1)] 1. Plaintiff’s claims are barred by the doctrine of Eleventh Amendment immunity A motion to dismiss pursuant to Fed R. Civ. P., Rule 12(b)(1) asserts that the Court lacks subject-matter jurisdiction under Rule 12(b)(1) to adjudicate the case. Fed R. Civ. P. 12(b)(1). “Challenges to subject matter jurisdiction under Rule 12(b)(1) may be either facial or factual. . . . Facial attacks, like those presented in this case, contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true.” Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992.) “The Eleventh Amendment prohibits federal courts from hearing ‘any suit in law or equity, commenced or prosecuted against one of the United States....’ The prohibition ‘encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.’” Kirchmann v. Lake Elsinore Unified Sch. Dist., 83 Cal. App. 4th 1098, 1101 (2000), as modified on denial of reh'g (Oct. 11, 2000). The Ninth Circuit has further held that public school districts are to be considered arms of the State for purposes of immunity analysis. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir. 1992). Here, the District is an arm of the state and therefore cannot be subject to suit in federal court unless otherwise authorized by waiver language in, or interpretation of, a particular statute. The Racketeer Influenced and Corrupt Organizations (“RICO”) statutes do not indicate that the State has waived its sovereign immunity to suit thereunder, and case law has held that California public agencies cannot be Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 12 of 28 Page ID #:1126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 held liable under the same pursuant to the doctrine of sovereign immunity. 18 U.S.C.A. §§ 1961, 1962, 1964. Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219 (E.D. Cal. 2009) [“doctrine of state sovereign immunity barred plaintiff from holding California Highway Patrol and former State Compensation Insurance Fund employee, in his official capacity, liable under RICO or any other basis.”] Accordingly, the Court must dismiss the RICO Act claim with prejudice for lack of jurisdiction. While it is not clear whether Plaintiff claims District Defendants violated 42 U.S.C. § 1983 (see FAC 1:41-43), section 1983 does not provide a federal forum for litigants who seek a remedy against a state for alleged deprivation of civil liberties. Will v. Michigan Dept’ of State Police, (1989) 491 U.S. 58, 66. Plaintiff is therefore also barred by the Eleventh Amendment from seeking relief under this code section. a. Plaintiff’s Claims Against the Individual Named Defendants and Simply Claims Against the District and Must be Dismissed. As noted above, sovereign immunity may also apply to state agents as well as the primary state entity itself. Kirchmann, supra, 83 Cal. App. 4th at 1101. And, specifically, courts recognize that Eleventh Amendment sovereign immunity should extend to any public agency employee acting in their official capacity. See, Pitts v. County of Kern, 17 Cal. 4th 340, 350 (1998) . “Neither states nor state officials acting in their official capacities are ‘person[s]’ within the meaning of section 1983 when sued for damages. While state officials literally are 'persons,' a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office, and therefore it is no different from a suit against the state itself." Brunius v. Parrish 132 Cal. App. 4th 838, 850 (2005) , citing Pitts, 17 Cal. 4th at 350. Courts have also stressed that “a plaintiff may not ‘circumvent congressional Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 13 of 28 Page ID #:1127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 intent by a mere pleading device.’” McAllister v. Los Angeles Unified Sch. Dist. 216 Cal. App. 4th 1198, 1208 (2013) , quoting, Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). In other words, a plaintiff should not be entitled to access a claim not otherwise available against a public entity, simply by listing the entity employees as individual defendants. Here, as pleaded in the FAC, Defendants Julie Quintana, Richard Batres and Rachael Conner are being sued in their official capacities. All acts complained of are acts undertaken within their specific scope of work including providing statements, depositions or testimony against Plaintiff in some facet of Plaintiff’s CTC investigation [FAC 7:13-26.] Joe Martinez is only mentioned by name in the FAC in a request to the Court to add him as a defendant and Plaintiff does not allege any facts against Defendant Martinez. [FAC 5:1-4.] Nancy O’Kelley, Felix Avila, Joe Ayala, Edgar Montes and Syeda Jafri are not mentioned in the FAC at all, aside from being listed as defendants on the caption page. Instead, throughout the FAC, alleged conspiratory acts are attributed mainly to “Defendants” without alleging how each individual took actions that were part of a conspiracy. (See, generally, FAC at 2:5-10:22.) By pleading this way, it appears that Plaintiff intends for the collective acts of individual District employees to serve as the basis of liability. Since these collective acts, per se, constitute the acts of the District as an entity, Plaintiff’s Civil RICO Act and 42 U.S.C. § 1983 claims should be barred by the Eleventh Amendment as to all of the District Defendants. 2. Plaintiff’s Failure to Exhaust his Administrative Remedies Bar His 5th and 14th Amendment Claims Plaintiff failed to exhaust his administrative remedy by completing his appeal before the CTC before bringing suit in this Court. (Cal. Ed. Code §§44244.1 and 44246). See also 72 Cal. Op. Att'y Gen. 159 (1989) [“The Commission is also responsible for denying, suspending, and revoking teacher credentials... ( 44242- 44246; see 61 Ops.Cal.Atty.Gen. 353, 363364 (1978).)”] Woodford v. Ngo, 548 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 14 of 28 Page ID #:1128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 U.S. 81, 88-89(2006) , citing McKart v. United States, 395 U.S. 185, 193 (1969). [“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.” McKart, 395 U.S. 185 at 193. “The doctrine provides ‘that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Id.”] As shown above, the CTC is the only body with the power to revoke teaching credentials in the State of California. Accordingly, this Court lacks subject matter jurisdiction to hear Plaintiff’s 5th and 14th Amendment claims because such claims center around the allegation that Plaintiff’s teaching credentials are in danger of being revoked by the CTC. B. The FAC Fails to State a Claim Upon Which Relief Can Be Granted [Fed R. Civ. P. 12(b)(6)] District Defendants’ motion to dismiss the alleged RICO, 5th and 14th Amendment violations, 42 U.S.C. § 1983 claims and “general fraud and false statement,” “contracts,” “conspiracy” and “harassment” “counts” based upon failure to state a claim is also brought pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6). See Young v. City of Visalia, 687 F. Supp. 2d 1141, 1152 (E.D. Cal. 2009). A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint’s compliance with the pleading requirements provided by the Federal Rules. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662 (2009). “While legal conclusions can provide the framework of a complaint,” neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 15 of 28 Page ID #:1129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 presumption of truth. Id. at 1949-50. Iqbal and Twombly prescribe a two-step process for evaluation of motions to dismiss. The court first identifies the non- conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, “plausibly give rise to an entitlement to relief.” Id.; Erickson v. Pardus, 551 U.S. 89 (2007). A court is not required to accept any allegations that are “conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1. Plaintiff Fails to Plead Sufficient Facts to Support His RICO Claim And Thus This Claim Must Be Dismissed Plaintiff’s RICO claim is fraught with conclusory statements, inferences and “unwarranted deductions of fact” that fail to properly plead a violation of the RICO statutes and thus must be dismissed. Civil RICO is codified in 18 U.S.C. §§1961-1968. 18 U.S.C. § 1962 provides: “(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 16 of 28 Page ID #:1130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” Civil RICO must involve activities that affect interstate or foreign commerce. See 18 U.S.C. § 1962. For Plaintiff to establish a successful RICO claim, he must show: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as “predicate acts”) (5) causing injury to the plaintiff's “business or property.” Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). 18 U.S.C. §§ 1964(c), 1962(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3284-85, 87 L.Ed.2d 346 (1985). Here, Plaintiff fails to allege sufficient facts to show “a pattern,” “of racketeering activity,” “causing injury to Plaintiff’s ‘business or property.’” 18 U.S.C. § 1961 (5) states, in relevant part, that a “pattern of racketeering activity” requires at least two acts of racketeering activity. In fact, “[t]he ‘pattern’ element of the statute was designed to limit its application to planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes,” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 527, 105 S. Ct. 3275, 3289, 87 L. Ed. 2d 346 (1985), citing ABA Report 72. In this case, at best, Plaintiff mentions three incidents that involve District Defendants in a possible RICO offense. The three incidents that allegedly substantiate Plaintiff’s claim for obstruction of justice are: 1) Defendant Quintana made two different statements against Plaintiff; 2) Defendant Connor “wrote two letters…which she as well impeached and perjured herself during her deposition…she was ordered to write a negative letter to complete charges brought Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 17 of 28 Page ID #:1131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 about by Rialto Unified School District one month after a non-issue incident;” and 3) Defendant Batres allegedly “perjured himself at the CTC hearing by changing his written and sworn statement during his deposition…” [FAC 8:18-22.] These allegations are insufficient to support a pattern of ongoing crime, and the allegations are fraught with legal conclusions without any supporting facts (i.e. “she…perjured herself…Defendant Batres…perjured himself.”). Such legal conclusory statements are not sufficient, and are not entitled to a presumption of truth. See Ashbal, 556 U.S. 662 (2009). Additionally, were these allegations true, arguendo, that the District Defendants actually made false statements or perjured at a hearing or deposition related to a hearing, this would not be enough to show an “ongoing, continuing crime.” Moreover, these conclusory anecdotes hardly show the requisite “pattern” element for a RICO claim. According to 18 U.S.C. § 1961 (1) “racketeering activit[ies]” include “(B) any act which is indictable under any of the following provisions of title 18, United States Code” such as those listed by Plaintiff on FAC 2:19-20 section 1344 (relating to financial institution fraud), section 1503 (relating to obstruction of justice), section 1511 (relating to the obstruction of State or local law enforcement), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1546 (relating to fraud and misuse of visas, permits, and other documents), section 1952 (relating to racketeering). Besides a hypothetical obstruction of justice, which is not properly pled according to federal pleading requirements, Plaintiff fails to show the “racketeering activities” element as well. He instead merely lists additional “predicate acts” District Defendants allegedly committed and refers the Court to a list of statutes- some of which fall under Civil RICO and some of which that do not. [See FAC 2:11-20.] Merely listing predicate acts and statutes does not meet the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) which require Plaintiff to set forth non-conclusory facts that establish these acts were committed by District Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 18 of 28 Page ID #:1132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Defendants. Plaintiff simply does not state enough facts to support predicate acts or racketeering activities took place. Thus, Plaintiff fails to show racketeering activity element as well. Finally, Plaintiff fails to show the predicate acts he listed “caused injury to his business or property.” “[T]o state a claim under Civil RICO, the plaintiff is required to show that a RICO predicate offense “not only was a ‘but for’ cause of his injury, but was the proximate cause as well.” Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9, 130 S. Ct. 983, 989, 175 L. Ed. 2d 943 (2010). Plaintiff has not established “but for” causation in any way - he does not show that “but for” District Defendants’ alleged perjured statements/false statements/FAC-page-2 predicate acts, Plaintiff would not have had his licenses revoked. He thus fails to meet his burden to plead the injury causation element of a successful RICO claim. District Defendants thus respectfully request Plaintiff’s RICO claim be dismissed with prejudice. 2. Plaintiff’s 5th and 14th Amendment Claims Must Be Dismissed For Failure to State a Claim The 5th Amendment states, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The 14th Amendment in relevant part states, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Cal. Ed. Code section 44939 provides a school district’s permanent employee’s rights with regards to employment dismissals and suspensions, and it Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 19 of 28 Page ID #:1133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 states: (a) This section applies only to dismissal or suspension proceedings initiated pursuant to Section 44934 [ranging from unprofessional conduct to egregious misconduct.] (b) Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district, charging a permanent employee of the school district with immoral conduct, conviction of a felony or of any crime involving moral turpitude…the governing board of the school district may, if it deems that action necessary, immediately suspend the employee from his or her duties and give notice to him or her of his or her suspension, and that 30 days after service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing. Plaintiff alleges his due process rights were violated when he was suspended without pay and the school board and Superintendent approved his dismissal from employment on January 23, 2013. [FAC 7:2-9.] According to Plaintiff, he presented a speech to the Board and Superintendent on February 13, 2013. [FAC 7:9-11.] Plaintiff alleges the School Board and Superintendent had already moved for suspension and dismissal several weeks earlier. [FAC 7:11-13.] However, Plaintiff does not allege facts to support that his suspension and dismissal in January 23, 2013 did not follow section 44939, et seq, and more specifically does not address the administrative remedy (hearing) process provided in sections 44939(b) and 44944. Without further facts to support his claim that his 5th and 14th Amendment rights were violated, these claims too must be dismissed. 3. Aside From 11th Amendment Immunity, Plaintiff’s 42 U.S.C. § 1983 Claim is Unsupported By Any Facts For Plaintiff to proceed under 42 U.S.C. § 1983, he must allege that (1) he was deprived of a right secured by the Constitution or laws of the United States and (2) the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “The Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 20 of 28 Page ID #:1134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 complaint must allege specific facts regarding each Defendant’s violation of Plaintiff’s rights and must allege facts explaining how any conduct complained of resulted in a deprivation of plaintiff’s federal rights.” Ingram v. Grant Joint Union High Sch. Dist., No. CIV S082490FCDDADPS, 2009 WL 2941463, at *4 (E.D. Cal. Sept. 10, 2009), citing Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980). “There can be no liability under 42 U.S.C. § 1983 unless there is an affirmative link or connection between each defendant’s actions and the claimed deprivation.” Ingram, No. CIV S082490FCDDADPS, 2009 WL 2941463, citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980). Here, Plaintiff only makes one mention of 42 U.S.C. § 1983 in all of his FAC, stating on the caption page, “18 U.S.C. 1961, 1964 et seq.; 18 U.S.C. 1962, 1963 et seq.; (Civil RICO Remedies); and, 5th and 14th Amendment Civil Rights Due Process Violations (enacted by Congress with Specific Reservations) in pari materia with the Supremacy Clause in the U.S. Constitution: also under Section 1983 of Title 42 of the United States Code.” In the remainder of the FAC, Plaintiff does not allege specific facts linking any of District Defendant’s actions to a 42 U.S.C. § 1983 claim. In fact, he makes no more mention of 42 U.S.C. § 1983 at all. Plaintiff cannot merely include the code section by reference and expect District Defendants to understand its intended usage. Without more, the Court cannot find Plaintiff entitled to any plausible relief under the code section. His 42 U.S.C. § 1983 claim, if it is indeed a claim, must therefore be dismissed. 4. Plaintiff’s “Counts” of “General Fraud and False Statements,” “Contracts,” “Conspiracy” and “Harassment are Unsupported By Any Facts In his Procedural History section, Plaintiff alleges four “counts” at FAC 4:17- 36: “(1) General Fraud and False Statements - General fraud is deception that is Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 21 of 28 Page ID #:1135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 deliberate intended to misinform another person or persons and often malicious, while false statements are lies which perpetuate untruths regarding a person or situation; (2) Contracts - Contracts are legal agreements between two parties that legally bind the parties to do what has been agreed upon in the documentation. Parties may he individuals, businesses, governments, or national entities; (3) Conspiracy - Conspiracy is a plan made with another individual or group of individuals for the purpose of committing a criminal act. Even if the crime is never carried out, the act of planning the crime is still a crime; (4) Harassment - to defame and utilize falsified documentation to impugn plaintiffs ability to work as a licensed certificated teacher, which is mandatory in the California State run school system, in order to seek employment.” [FAC 4:17-36] If Plaintiff is alleging these counts presently against District Defendants, they must be dismissed for failure to properly support each of these counts with factual allegations. Furthermore, “contracts” is not even alleged as a viable claim. 5. Plaintiff’s Entire Lawsuit Must Be Dismissed Because He Voluntarily Entered Into a Resignation and General Release Agreement Covenanting to Release District Defendants From All Actions and Proceedings “Although as a general rule [courts] may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion, [courts] may consider extrinsic evidence not attached to the complaint if the document’s authenticity is not contested and the plaintiff’s complaint necessarily relies on it.” Johnson v. Fed. Home Loan Mortgage Corp., 793 F.3d 1005, 1007 (9th Cir. 2015), citing, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). One of Plaintiff’s premises for his RICO claim is that he was forced into “an illegal ‘voluntary’ contract between [himself] and all Defendants.” [FAC 2:17-18.] The contract Plaintiff refers to is his resignation agreement and general release that concluded his employment dismissal proceedings. Plaintiff’s complaint relies on Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 22 of 28 Page ID #:1136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 the document as a listed RICO “predicate act.” While Plaintiff perhaps challenges its validity, Plaintiff does not challenge the contract’s authenticity. District Defendants therefore request the Court to take judicial notice of said document in the concurrently filed request for judicial notice, Exhibit A. (see District Defendants’ Request for Judicial Notice, filed concurrently herewith.) The Agreement shows that Plaintiff was represented by counsel Matthew J. Singer in the teacher employment termination process. The Agreement has terms that indicate Plaintiff:  voluntarily resigned (Agreement, ¶1);  released the District from any and all claims which may have existed at the time of the Agreement’s execution (Agreement, ¶3);  agreed not to sue or initiate any action or proceeding against the District (Agreement, ¶6);  was advised of the District’s obligation to report to the California Commission on Teacher Credentialing Plaintiff’s change in employment status pursuant to Title 5, California Code of Regulations, Section 80303 (Agreement, ¶7); and  was advised that the District was to report all known information about each alleged act of misconduct within 30 days of the resignation pursuant to Title 5, California Code of Regulations, Section 80303 (Agreement, ¶7.) Clearly, said settlement agreement was voluntarily entered into and precludes Plaintiff’s present FAC. Based on this Agreement, District Defendants also request this Court dismiss this action with prejudice. C. The FAC Must be Dismissed for Insufficient Service of Process [Fed. R. Civ. P. 12(b)(5)] Federal Rule of Civil Procedure, Rule 12(b)(5) authorizes a Motion to Dismiss for failure to properly serve process on Defendant. Olson v. Federal Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 23 of 28 Page ID #:1137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Election Commission (D.D.C. 2009) 256 FRD 8, 9 fn.3. Challenges to the manner of service are interpreted strictly: “A liberal construction of Rule 4 cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process may be had.” Mid-Continent Wood Products, Inc. v. Harris (7 th Cir. 1991) 936 F.2d 297, 300. Where the validity of service is contested by a Rule 12 motion the burden is on the plaintiff (the party claiming proper service has been effected) to establish the validity of the service. Cardenas v. Chicago 646 F3d 1001(7 th Cir. 2011) . 1. Any Attempt by Plaintiff to Serve The First Amended Complaint By Mail is Insufficient and Must be Disregarded Federal Rule of Civil Procedure, Rule 4(j) governs service of a summons and complaint on a state agency 4 as follows: (j) Serving a Foreign, State, or Local Government. * * * (2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant. In the current case, Plaintiff did not attempt any kind of personal service on any of District Defendants. Moreover, while service by mail is a method authorized under California law, Plaintiff failed to properly utilize that method. California Code of Civil Procedure § 415.30 states in relevant part: 4 California public school districts are considered state agencies. Belanger v. Madera Unified School Dist., 963 F.2d 248, 254 (9th Cir.1992). Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 24 of 28 Page ID #:1138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 (a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first- class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender. Cal.Code.Civ.Proc. §415.30. Here, there was no notice and acknowledgment and no return envelope. [King Decl., ¶ 11.] Plaintiff instead sent District Defendants the original complaint, a summons and Certification and Notice of Interested Parties (CV-30) and the Proof of Service and Acknowledgment of Service form (see Docket 13-20.) [King Decl., ¶ 11.] Plaintiff claims he also sent a copy of the FAC when he served District Defendants by this same mailing process. [King Decl., ¶ 7.] In efforts to facilitate proper service, District Defendants’ counsel sent Plaintiff the proper Notice and Acknowledgment form (CV-21) along with detailed instructions on how to effect proper service. [King Decl., ¶¶ 6, 8, 9.] Several times, counsel offered to accept service by email but ultimately were told to download the FAC from the Court website if counsel wanted a copy. [King Decl., ¶ 6, 8, 10, 12.] District Defendants then received a copy of the original complaint and eight proofs of service by U.S. Mail from Plaintiff on September 13, 2016. Because Plaintiff did not utilize an authorized method for service set forth in FRCP 4(j), service should be quashed as insufficient and the first amended complaint should be dismissed pursuant to Rule 12(b)(5). D. Portions of the FAC Must be Stricken as Immaterial and Redundant to Plaintiff’s Lawsuit [Fed R. Civ. P. 12(f)] District Defendants also bring this motion challenging the sufficiency of the FAC under Federal Rules of Civil Procedure, Rule 12(f). Pursuant to this rule, the Court may strike from any pleading “any redundant, immaterial, impertinent, or scandalous matter.” Sliger v. Prospect Mortgage, LLC, 789 F.Supp.2d 1212, 1216 Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 25 of 28 Page ID #:1139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 (E.D.Cal. 2011). A matter is immaterial if it “has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). A matter is impertinent if it consists of statements that do not pertain to and are not necessary to the issues in question. Id. Redundant matters are defined as allegations that “constitute a needless repetition of other averments or are foreign to the issue.” Thornton v. Solutionone Cleaning Concepts, Inc., 2007 WL 210586 (E.D.Cal. Jan. 26, 2007) (citing, Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005)). Granting a motion to strike may be proper if it will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues. Fantasy, Inc., 984 F.2d at 1527-28. 1. By Merely Mentioning 42 U.S.C. § 1983 Only Once And Failing to Allege Facts to Support the Claim, the Reference to 42 U.S.C. § 1983 is Immaterial to the Action and Should be Stricken Plaintiff’s failure to plead any facts to support a 42 U.S.C. § 1983 claim and merely mentioning this code section once on the caption page causes the reference to this code section to be immaterial to the FAC. It cannot be essential or important if it is not used, not plead, not supported and not linked to any action the mentioned District Defendants allegedly took. 2. Counts Two, Three and Four Should be Stricken from the FAC Because They Merely Re-State Count One Counts Two, Three and Four on page 9 of Plaintiff’s FAC are all charges of 18 U.S.C. §1962 and state the exact same thing as Count One: “Plaintiff now re- alleges each and every allegation as set forth above, and hereby incorporates the same by reference, as if all were set forth fully herein and the Original Complaint 5 . 5 Plaintiff violates Central Division Local Rule 15-2 stating, “Every amended pleading filed as a matter of right or allowed by order of the Court shall be complete continued… Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 26 of 28 Page ID #:1140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 Substance prevails over form.” As such, the Counts are all needless repetitions of Count One and must therefore be stricken. IV. CONCLUSION Based on the foregoing, District Defendants respectfully request that the Court grant their motion to dismiss Plaintiff’s FAC for lack of subject matter jurisdiction, for failure to state a claim upon which relief can be granted, for insufficient service of process and to strike all improper, immaterial and redundant matters in the FAC as outlined in the notice to this motion and in this motion. DATED: September 26, 2016 Respectfully submitted, FAGEN FRIEDMAN & FULFROST, LLP By: s/Wesley King Wesley D. King Attorneys for Defendant Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachael Conner and Joe Martinez 00608-00118/3338576.1 including exhibits. The amended pleading shall not refer to the prior, superseded pleading.” Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 27 of 28 Page ID #:1141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 6300 Wilshire Boulevard, Suite 1700, Los Angeles, CA 90048. On September 29, 2016, I served true copies of the following document(s) described as MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS on the interested parties in this action as follows: Dr. Jack Poster 819 Anderson Court Redlands, CA 92374 jhp5@earthlink.net William Dylan Gardner william.gardner@doj.ca.gov BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 29, 2016, at Los Angeles, California. Rebeccah Leal Case 5:16-cv-01839-AB-DTB Document 33-1 Filed 09/26/16 Page 28 of 28 Page ID #:1142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 FAGEN FRIEDMAN & FULFROST, LLP Kimberly A. Smith, SBN 176659 ksmith@f3law.com Wesley D. King, SBN 280784 wking@f3law.com Stephanie S. Baril, SBN 259581 sbaril@f3law.com 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 Phone: 323-330-6300 Fax: 323-330-6311 Attorneys for Defendants, Rialto Unified School District, Nancy O’Kelley, Felix Avila, Joe Ayala, Julie Quintana, Edgar Montes, Richard Batres, Syeda Jafri, Rachael Conner and Joe Martinez UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Dr. Jack H. Poster, Plaintiff, vs. Rialto Unified School District, a public entity, Dr. Harold Cebrun, Nancy G. O' Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor, Joe W. Martinez, The Department of California Teaching Credentialing, and DOES 1-50 Defendants. CASE NO. CV16-01839 AB(DTBx) DECLARATION OF WESLEY D. KING IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT Filed concurrently with (1) Notice of Motion, (2) Motion Points and Authorities, (3) Request for Judicial Notice, (4) [Proposed] Orders The Hon. André Birotte, Ctrm. 4 Magistrate Judge Hon. David Bristow, Ctrm. 3 Action Filed: August 26, 2016 Trial Date: None Set Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 1 of 6 Page ID #:1143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 DECLARATION OF WESLEY KING I, Wesley King, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an associate with Fagen Friedman & Fulfrost, LLP, attorneys of record for defendants Rialto Unified School District (“District”), Nancy G. O' Kelley, Mr. Felix Avila, Joe Ayala, Mrs. Julie Quintana, Edgar Montes, Mr. Richard Batres, Syeda Jafri, Mrs. Rachel Connor and Joe W. Martinez (collectively “Defendants” or “District Defendants”). If called as a witness, I could and would competently testify to all facts within my personal knowledge except where stated upon information and belief. 2. My litigation co-counsel Kimberly A. Smith is currently out of the country. She handled the initial interactions with Plaintiff regarding this litigation. I am informed and believe certain interactions occurred as stated below, but am personally aware of those email interactions noted herein. 3. On September 5, 2016, I am informed and believe Ms. Smith contacted Plaintiff to advise him that our office is representing the District as well as several of the individually named District employees. Ms. Smith acknowledged that she was not aware of whether Plaintiff had served District Defendants yet, but offered in an email to accept formal service. A true and correct copy of the September 5, 2016 email to Plaintiff is attached hereto as Exhibit A. 4. On September 6, 2016, I am informed and believe Ms. Smith received a response from Plaintiff claiming that he had already served District Defendants with a complaint and First Amended Complaint (“FAC”) with a summons. However, he indicated that he used certified mail with return receipt as his method of delivery. He stated that the complaint, FAC and summons were accepted by District Defendants on September 2, 2016. A true and correct copy of Plaintiff’s September 6, 2016 email to Ms. Smith is attached hereto as Exhibit B. Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 2 of 6 Page ID #:1144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 5. On September 7, 2016, Plaintiff wrote Ms. Smith asking for the current address for Dr. Harold Cebrun, a named Defendant who Plaintiff acknowledged our office is not defending. He insisted the District had already accepted Dr. Cebrun’s summons and complaint by certified mail with return receipt. A true and correct copy of Plaintiff’s September 7, 2016 email to Ms. Smith is attached hereto as Exhibit C. 6. I am informed and believe that Ms. Smith replied to Plaintiff on September 8, 2016 in a letter detailing that service of the complaint on District Defendants has not yet been accomplished. In her correspondence, Ms. Smith described how to properly serve process by first class mail, which requires service accompanied by a “notice and acknowledgment.” She cited Cal.Code.Civ.Proc. § 415.30 and Fed.R.Civ.P. Rule 4, cautioned that courts interpret rules for service of process strictly and even explained that that service by mail was held invalid in another case she is handling before the United States District Court where Plaintiff is self-represented. Again, Ms. Smith renewed her offer to accept service by email. A true and correct copy of Ms. Smith’s September 8, 2016 correspondence to Plaintiff is attached hereto as Exhibit D. 7. Plaintiff replied by letter on September 8, 2016, stating that he “filed the proper summons, complaint and if necessary to those that are NOT your clients, first amended complaint with the proper option to serve via first class mail provided by ‘notice and acknowledgment.’ Cal.Code.Civ.Proc. §415.30.” Plaintiff then indicated that the “21 day summons has been proper served, filed and accepted as such by the court. Please have your clients acknowledge receipt on that form and have it sent to me and/or electronically filed.” A true and correct copy of Plaintiff’s September 8, 2016 letter to Ms. Smith is attached hereto as Exhibit E. 8. Ms. Smith replied to Plaintiff by letter, which was sent by email at 9:46 a.m., September 9, 2016, as well as by US Mail the same day. In her letter, she again highlighted the deficiencies in Plaintiff’s service of process. She explained Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 3 of 6 Page ID #:1145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 that only eight proofs of service were filed with the Court, that the proof of service for Felix Avila is invalid as he is no longer an employee of the District and that there was no proof of service for the District as its own entity. Again, she detailed the legal requirements for valid service by mail. She also reiterated her offer to accept service of the FAC and related documents by email. She also indicated that District Defendants would seek sanctions if Plaintiff continued to insist that he followed the correct process since he has been given the correct procedures multiple times. A true and correct copy of Ms. Smith’s September 9, 2016 letter to Plaintiff is attached hereto as Exhibit F. 9. Later on September 9, 2016 at 12:32 PM, Ms. Smith replied by email to Plaintiff. In that email, Ms. Smith continued to attempt to work with Plaintiff, stating, “we can probably work with” the Proof of Service - Acknowledgment of Service forms that Plaintiff insisted were “notice and acknowledgment.” Ms. Smith included a copy of the actual and proper Notice and Acknowledgment form (CV- 21). She explained that District Defendants have 20 days to complete and return a notice and acknowledgment, and the day the acknowledgment is executed is deemed the date of service, citing Cal.Code.Civ.Proc. § 415.30(c). She further explained that from that point, District Defendants would have the full 21 days to file a responsive pleading. Offering to work with the return receipts of mailing dated September 2, 2016 as the day notice and acknowledgment forms were received, the date District Defendants’ responsive pleading would be due, she explained, would be October 13, 2016. She asked Plaintiff whether working with the rules and by this timeline would be agreeable to Plaintiff. A true and correct copy of Ms. Smith’s September 9, 2016 email to Plaintiff is attached hereto as Exhibit G. 10. Also on September 9, 2016, Plaintiff called our office and spoke to one of our legal secretaries, Rebeccah Leal. Based on my information and belief, he informed Ms. Leal that if we wanted the FAC, we would have to download a copy from the Court website ourselves. Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 4 of 6 Page ID #:1146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 11. To date the District has received from Plaintiff a copy of the summons, Proof of Service - Acknowledgment of Service form, Certification and Notice of Interested Parties and the original complaint. A true and correct copy of the District’s email, dated September 12, 2016, is attached hereto as Exhibit H. 12. On September 12, 2016, I called Plaintiff, stating again that we would overlook the deficiencies in service if he would agree to serve the FAC via email. Plaintiff retorted that he would extend no professional courtesy and refused to meet and confer regarding service deficiencies. I informed him we would treat his efforts to serve District Defendants as insufficient service of process and move forward accordingly. 13. On September 13, 2016, at our office, we received from Plaintiff via U.S. mail a hard copy of the original complaint, summons and eight unsigned “Proof of Service - Acknowledgment of Service” forms for eight of nine District Defendants. Attached to each proof of service form was a copy of a signed Return Receipt for Merchandise, dated September 2, 2016. 14. On September 19, 2016, I attempted to meet and confer with Plaintiff regarding the substance of District Defendants’ motion to dismiss and/or strike Plaintiff’s FAC. Parties were unable to reach a resolution that eliminated a necessity for a hearing, as Plaintiff was unresponsive to District Defendants’ communication. A true and correct copy of the meet and confer letter, dated September 19, 2016, is attached hereto as Exhibit I. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed September 26, 2016, at Los Angeles, California. /s/ Wesley King Wesley King 00608-00118/3338109.1 Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 5 of 6 Page ID #:1147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV16-01839 AB(DTBx) Declaration of Wesley D. King in Support of District Defendants' Motion to Dismiss and/or Strike F ag en F ri ed m an & F u lfr os t, L L P 6 3 0 0 W ils h ir e B ou le va rd , S u it e 1 7 0 0 L os A n ge le s, C al if or n ia 9 0 0 4 8 M ai n : 3 2 3 -3 3 0 -6 3 0 0 • F ax : 3 2 3 -3 3 0 -6 3 1 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 6300 Wilshire Boulevard, Suite 1700, Los Angeles, CA 90048. On September 26, 2016, I served true copies of the following document(s) described as DECLARATION OF WESLEY D. KING IN SUPPORT OF DISTRICT DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT on the interested parties in this action as follows: Dr. Jack Poster 819 Anderson Court Redlands, CA 92374 jhp5@earthlink.net BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 26, 2016, at Los Angeles, California. Rebeccah Leal William D. Gardner william.gardner@doj.ca.gov Case 5:16-cv-01839-AB-DTB Document 33-2 Filed 09/26/16 Page 6 of 6 Page ID #:1148 EXHIBIT A Case 5:16-cv-01839-AB-DTB Document 33-3 Filed 09/26/16 Page 1 of 3 Page ID #:1149 1 Rebeccah Leal From: Kimberly A. Smith Sent: Monday, September 05, 2016 8:14 PM To: 'jack poster' Cc: Rebeccah Leal; Michelle Moy Subject: New Federal Lawsuit - Accepting Service of Complaint Dr. Poster, I was informed last week that you had filed a new lawsuit in the United States District Court. I was able to access a copy of the complaint via the Court’s electronic filing system and have spoken to the District. The District has advised that I will be representing it and some of the individually named employees and Board members as follows: 1. I will represent current employees Richard Batres, Syeda Jafri and Rachael Conner 2. I will represent current Board members Nancy O’Kelley, Joy Ayala and Edgar Montes 3. I may represent former employee Felix Avila and Julie Quintana if they would like me to (I have sent correspondence to them and will be waiting to hear back) I will not be representing Dr. Harold Cebrun. I do not know if you have taken any action to serve your complaint but I would like to propose a plan to accept service on behalf of the District and the individuals I am/may be representing. My difficulty is that I am about to leave on a multi-week vacation, out-of-the country. and I would like to delay service until I return. I note that you filed the lawsuit on August 26, 2016. Under the Federal Rules of Civil Procedure, Rule 4, you have 90 days to serve the complaint, which leaves plenty of time. I would like to propose that you formally and officially serve me with the Complaint by email on October 3, 2016. (By that time, I am sure I will also be able to confirm whether or not I am representing Mr. Avila and Ms. Quintana.) I hope that you can extend this professional courtesy to me. I believe that we were always civil and accommodating to each other in the litigation last year and I hope that we can continue in that regard. Please advise if my proposal is acceptable to you. If it is, please simply plan to send me a copy of the complaint by email on October 3, 2016. This will then begin the time period for the parties I am representing to respond. Should you have any questions or concerns, do not hesitate to contact me. I will be available to respond to you through the end of this week. Thank you. Kimberly A. Smith Case 5:16-cv-01839-AB-DTB Document 33-3 Filed 09/26/16 Page 2 of 3 Page ID #:1150 2 6300 Wilshire Blvd. Suite 1700 Los Angeles, CA 90048-5219 Direct: (323) 330-6315 Mobile: (310) 728-9492 Phone: (323) 330-6300 Fax: (323) 330-6311 Email: ksmith@f3law.com Web: www.f3law.com Please consider the environment before printing this email. Case 5:16-cv-01839-AB-DTB Document 33-3 Filed 09/26/16 Page 3 of 3 Page ID #:1151 EXHIBIT B Case 5:16-cv-01839-AB-DTB Document 33-4 Filed 09/26/16 Page 1 of 4 Page ID #:1152 1 Rebeccah Leal From: Jack Poster Sent: Tuesday, September 06, 2016 3:32 PM To: Kimberly A. Smith Subject: Re: New Federal Lawsuit - Accepting Service of Complaint -----Original Message----- From: Jack Poster Sent: Sep 5, 2016 11:23 PM To: "Kimberly A. Smith" Subject: Re: New Federal Lawsuit - Accepting Service of Complaint Good afternoon Ms. Smith. I have already served your clients with a Complaint and a First Amended Complaint with their Summons In A Civil Action - as stated "A Lawsuit Has Been filed against you (your clients). "Within 21 days after service of this summons on you (not counting the day you received it) ------ you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure." Your clients accepted the above stated by certified, return receipt mail on September 2, 2016. They have until September 23, 2016 to repond. You have mispresented Rule 4 of the Federal Rules of Civil Procedure. There is NO 90 day answer period. I am NOT interested in giving you a "courtesy' because of the inconvenience you have for taking a vacation. You belong to a huge law firm and someone their is very capable of representing these clients in a timely manner. Since these clients have been duly and properly served I expect their answers as stated in their summons. If not, I will seek a summary judgement against them. Please note that I have also mailed your clients, before I knew your firm represented them, a "Notice to Parties of Court-Directed ADR program." I will however, NOW , as stated in the Federal Rules of Civil Procedures direct all correspondence for your Defendants to you and your law firm. Since you will be gone , whom do you wish me to contact regarding the ADR ordered program. Sincerely, Dr. Jack Poster -----Original Message----- From: "Kimberly A. Smith" Sent: Sep 5, 2016 8:13 PM To: 'jack poster' Cc: Rebeccah Leal , Michelle Moy Subject: New Federal Lawsuit - Accepting Service of Complaint Dr. Poster, I was informed last week that you had filed a new lawsuit in the United States District Court. I was able to access a copy of the complaint via the Court’s electronic filing system and have spoken to the District. The District has advised that I will be representing it and some of the individually named employees and Board members as follows: 1. I will represent current employees Richard Batres, Syeda Jafri and Rachael Conner 2. I will represent current Board members Nancy O’Kelley, Joy Ayala and Edgar Montes Case 5:16-cv-01839-AB-DTB Document 33-4 Filed 09/26/16 Page 2 of 4 Page ID #:1153 2 3. I may represent former employee Felix Avila and Julie Quintana if they would like me to (I have sent correspondence to them and will be waiting to hear back) I will not be representing Dr. Harold Cebrun. I do not know if you have taken any action to serve your complaint but I would like to propose a plan to accept service on behalf of the District and the individuals I am/may be representing. My difficulty is that I am about to leave on a multi-week vacation, out-of-the country. and I would like to delay service until I return. I note that you filed the lawsuit on August 26, 2016. Under the Federal Rules of Civil Procedure, Rule 4, you have 90 days to serve the complaint, which leaves plenty of time. I would like to propose that you formally and officially serve me with the Complaint by email on October 3, 2016. (By that time, I am sure I will also be able to confirm whether or not I am representing Mr. Avila and Ms. Quintana.) I hope that you can extend this professional courtesy to me. I believe that we were always civil and accommodating to each other in the litigation last year and I hope that we can continue in that regard. Please advise if my proposal is acceptable to you. If it is, please simply plan to send me a copy of the complaint by email on October 3, 2016. This will then begin the time period for the parties I am representing to respond. Should you have any questions or concerns, do not hesitate to contact me. I will be available to respond to you through the end of this week. Thank you. The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the correct file and location. Kimberly A. Smith 6300 Wilshire Blvd. Suite 1700 Los Angeles, CA 90048-5219 Direct: (323) 330-6315 Mobile: (310) 728-9492 Phone: (323) 330-6300 Fax: (323) 330-6311 Email: ksmith@f3law.com Web: www.f3law.com Please consider the environment before printing this email. CONFIDENTIALITY NOTICE TO RECIPIENT(S): This e-mail communication and any attachment(s) may contain information that is confidential and/or privileged by law and is meant solely for the intended recipient(s). Unauthorized use, review, duplication, disclosure or interception of this e-mail is strictly prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you received this e-mail in Case 5:16-cv-01839-AB-DTB Document 33-4 Filed 09/26/16 Page 3 of 4 Page ID #:1154 3 error please notify us immediately of the error by return e-mail and please delete this message and any attachment(s) from your system. Thank you in advance for your cooperation. Dr. Jack Poster 819 Anderson Ct. Redlands, Ca. 92374 (909) 227-0442 Dr. Jack Poster 819 Anderson Ct. Redlands, Ca. 92374 (909) 227-0442 Case 5:16-cv-01839-AB-DTB Document 33-4 Filed 09/26/16 Page 4 of 4 Page ID #:1155 EXHIBIT C Case 5:16-cv-01839-AB-DTB Document 33-5 Filed 09/26/16 Page 1 of 2 Page ID #:1156 1 Rebeccah Leal From: Jack Poster Sent: Wednesday, September 07, 2016 2:59 PM To: Kimberly A. Smith Subject: re: Harold Cebrun Good afternoon, since you will not be representing Dr. Harold Cebrun, please provide me with his current known address so I won't continue sending mail to Rialto USD. They have already accepted his summons and complaint by certified, return receipt mail. Thank you Dr. Poster Dr. Jack Poster 819 Anderson Ct. Redlands, Ca. 92374 (909) 227-0442 Case 5:16-cv-01839-AB-DTB Document 33-5 Filed 09/26/16 Page 2 of 2 Page ID #:1157 EXHIBIT D Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 1 of 8 Page ID #:1158 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 2 of 8 Page ID #:1159 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 3 of 8 Page ID #:1160 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 4 of 8 Page ID #:1161 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 5 of 8 Page ID #:1162 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 6 of 8 Page ID #:1163 Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 7 of 8 Page ID #:1164 1 Rebeccah Leal From: Rebeccah Leal Sent: Thursday, September 08, 2016 3:43 PM To: jhp5@earthlink.net Cc: Kimberly A. Smith Subject: Poster v. Rialto Attachments: Poster re service of complaint 9.8.16.pdf Mr. Poster, Attached please find correspondence from Ms. Smith in the above-referenced matter. Should you have any questions, please let me know. Thank you, Rebeccah Leal Legal Secretary 6300 Wilshire Blvd. Suite 1700 Los Angeles, CA 90048-5219 Direct: (323) 330-6820 Phone: (323) 330-6300 Fax: (323) 330-6311 Email: rleal@f3law.com Web: www.f3law.com Please consider the environment before printing this email. CONFIDENTIALITY NOTICE TO RECIPIENT(S): This e-mail communication and any attachment(s) may contain information that is confidential and/or privileged by law and is meant solely for the intended recipient(s). Unauthorized use, review, duplication, disclosure or interception of this e-mail is strictly prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you received this e-mail in error please notify us immediately of the error by return e-mail and please delete this message and any attachment(s) from your system. Thank you in advance for your cooperation. Case 5:16-cv-01839-AB-DTB Document 33-6 Filed 09/26/16 Page 8 of 8 Page ID #:1165 EXHIBIT E Case 5:16-cv-01839-AB-DTB Document 33-7 Filed 09/26/16 Page 1 of 4 Page ID #:1166 1 Rebeccah Leal From: Jack Poster Sent: Thursday, September 08, 2016 4:18 PM To: Rebeccah Leal Subject: Re: Poster v. Rialto Attachments: Letter to Kimberly Smith on issues September 08, 2016.docx Here is my response, Thank you Dr. Poster -----Original Message----- From: Rebeccah Leal Sent: Sep 8, 2016 3:43 PM To: "jhp5@earthlink.net" Cc: "Kimberly A. Smith" Subject: Poster v. Rialto Mr. Poster, Attached please find correspondence from Ms. Smith in the above-referenced matter. Should you have any questions, please let me know. Thank you, The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the correct file and location. Rebeccah Leal Legal Secretary 6300 Wilshire Blvd. Suite 1700 Los Angeles, CA 90048-5219 Direct: (323) 330-6820 Phone: (323) 330-6300 Fax: (323) 330-6311 Email: rleal@f3law.com Web: www.f3law.com Please consider the environment before printing this email. CONFIDENTIALITY NOTICE TO RECIPIENT(S): This e-mail communication and any attachment(s) may contain information that is confidential and/or privileged by law and is meant solely for the intended recipient(s). Unauthorized use, review, duplication, disclosure or interception of this e-mail is strictly prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you received this e-mail in error please notify us immediately of the error by return e-mail and please delete this message and any attachment(s) from your system. Thank you in advance for your cooperation. Dr. Jack Poster Case 5:16-cv-01839-AB-DTB Document 33-7 Filed 09/26/16 Page 2 of 4 Page ID #:1167 2 819 Anderson Ct. Redlands, Ca. 92374 (909) 227-0442 Case 5:16-cv-01839-AB-DTB Document 33-7 Filed 09/26/16 Page 3 of 4 Page ID #:1168 Dr. Jack H. Poster, Pro Per 819 Anderson Ct. Redlands, Ca. 9237(909) 798-2134 September 8, 2016 Via First Class Mail and E-Mail Kimberly A. Smith, Attorney at Law 6300 Wilshire Blvd., Suite 1700 L.A., Ca. 90048 Re: Jack H. Poster v. Rialto Unified School District Dear Ms. Smith, As usual your making a long drawn out process for everything. Simply stated, and if you actually read all the documents that were given to your client, I filed the proper summons, complaint and if necessary to those that are NOT your clients, first amended complaint with the proper option to serve via first class mail provided by "notice and acknowledgement." Cal.Code.Civ.Proc. §415.30. As far as professional courtesy, I have much respect for you, but none for your clients. I will treat you with the same respect as always, However, this time, there will be no bantering back and forth and please stop trying to educate me on how to act as a professional. Therefore, the 21 day summons has been proper served , filed and accepted as such by the court. Please have your clients acknowledge receipt on that form and have it sent to me and/or electronically filed. I have been approved by the court to also receive and file by electronic filing. Thank you for your attention to this matter. Dr. Jack Poster Case 5:16-cv-01839-AB-DTB Document 33-7 Filed 09/26/16 Page 4 of 4 Page ID #:1169