Case: 14-56140, 02/04/2015, ID: 9409763, DktEntry: 118, Page 1 of 19

Case No. 14-56140

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN,
PBC, a Delaware public benefit corporation, COLBERN C. STUART, III
Plaintiffs-Appellants
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et al.
Defendants-Appellees
Appeal From The United States District Court
For The Southern District of California
Case No. 03-cv-1944 CAB (JLB)
The Honorable Cathy Ann Bencivengo

APPELLANTS MOTION TO DISMISS UNTIMELY CROSS

APPEALS; ALTERNATIVE MOTION TO PROCEED AS CROSS-APPEAL

Colbern C. Stuart III, J.D.

President, California Coalition for
Families and Children, PBC
4891 Pacific Highway Ste. 102
San Diego, CA 92110
Telephone: 858-504-0171
Cole.Stuart@Lexevia.com
Plaintiff-Appellant In Pro Se

Dean Browning Webb, Esq.

Law Offices of Dean Browning Webb
515 E 39th St.
Vancouver, WA 98663-2240
Telephone: 503-629-2176
RICOman1968@aol.com
Counsel for Plaintiff-Appellant
California Coalition for
Families and Children, PBC

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I.

MOTION AND RELIEF SOUGHT

PLEASE TAKE NOTICE that Appellants California Coalition for Families

and Children, PBC, and Colbern Stuart (California Coalition) hereby move this
Court pursuant to Federal Rules of Appellate Procedure 27 and 3(a)(2), for orders:
(1) Dismissing untimely cross-appeals in answering briefs asserting other
grounds which were not adjudicated in the district court and not noticed as crossappeals, violating FRAP 3(a)(1) and 4(a)(3);
(2) Permitting Appellants to file the accompanying Reply in excess of typevolume limits of FRAP Rule 32, in order to match proportion with Appellees 50,000
words in answering briefs;
(3) or in the alternative, to treat Appellees answering briefs to cross-appeal
under FRAP 28.1, abandon ordinary type-volume limits and briefing procedures
under FRAP 32, and proceed under FRAP 28.1. Appellants further request a
modification of Rule 28.1s type-volume and briefing schedule as detailed below.
II.

APPELLEES ANSWERING BRIEFS ARE UNTIMELY CROSS

APPEALS AND SHOULD BE DISMISSED
Appellees have filed fourteen separate answering briefs including:

DktEntry 45: Jeffrey Fritz and Basie & Fritz (Frtz Brf.);
DktEntry 51: Superior Court of San Diego County, Robert J. Trentacosta,
Michael Roddy, Judicial Council, AOC, Tani CantiSakauye, Lorna Alksne,
Christine K. Goldsmith, Jeannie Lowe, William Mcadam, Edlene McKenzie,
Michael S. Groch, Kristine P. Nesthus, Steven Jahr, Lisa Schall and Joel R.
Wohlfeil (Jud. Brf.);
DktEntry 52: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon
Blanchet, Law Offices of Lori Clark Viviano, National Family Justice Center
Alliance and Lori Clark Vivano (Alliance Joinder);
DktEntry 53-1: County of San Diego and William D. Gore (County. Brf.);
1

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DktEntry 55: American College of Forensic Examiners Institute and Robert

O'Block (ACFEI Brf.);
DktEntry 60: Bierer and Associates and Marilyn Bierer (Bierer Brf.);
DktEntry 62: Brad Batson, Commission on Judicial Performance and Lawrence
J. Simi (Comm. Brf.);
DktEntry 64: Stephen Doyne and Dr. Stephen Doyne, Inc. (Doyne Brf.);
DktEntry 65: Chubb Group of Insurance Companies (Federal Brf.);
DktEntry 67: San Diego County Bar Association Correspondence: San Diego
County Bar Association (Joinder) (SDCBA Brf.);
DktEntry 68: Allen Slattery, Inc., Baldwi n and Baldwin, Carole Baldwin, Laury
Baldwin, Hargraeves & Taylor, PC, William Hargraeves, Meridith Levin, Janis
Kay Stocks and Stocks & Colburn (Lawyer. Brf);
DktEntry 69: Terry Chucas and Susan Griffin (Chucas Brf.);
DktEntry 71: Larry Corrigan, Love and Alvarez Psychology, Inc. and Lori Love
(Love Brf.);
DktEntry 75: Off Duty Officers (ODO Brf.)
DktEntry 95: Ashworth, Blanchet, Kristensen & Kalemenkarian, Sharon
Blanchet, National Family Justice Center Alliance (Alliance Brf. 73);
DktEntry 111: City of San Diego, Jan Goldsmith, and Emily Garson (City Brf.);
DktEntry 114: Robert A. Simon (Simon Brf.)
Appellees fourteen answering briefs and joinders total about 50,000 wordsless
than the 196,000 (combined) Appellees would be permitted under FRAP
32(a)(7)(B)(i).
California Coalitions opening brief (AOB DktEntry 43) is about 16,000
words, extended by permission of this Court (Order, DktEntry 42).

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A. Appellees Answering Briefs Assert Grounds Not Appealed or Briefed

by Appellants
Appellants Notice of Appeal (DktEntry 11-3, ER 1-3) and the AOB are
directed only to the grounds on which the district court dismissed the case and
interlocutory orders thereunder. See AOB CONTENTS, DktEntry 43, pp. 2-5. The
district court dismissed under:
(1) Federal Rule of Civil Procedure 8(a)(2) (DktEntry 11-3, ER 6-12);
(2) Eleventh Amendment immunity (ER 41-49); and
(3) judicial immunity (Id.).
The length and complexity of answering briefs follows Appellees decision to
assert what they characterize as other grounds. These other grounds were not
adjudicated or relied on by the district court, not noticed for appeal by Appellants or
briefed in the AOB, and not noticed by cross-appeal by any Appellee by deadline of
August 9, 2014. Fed.R. App.P. 4(a)(3).
B. Appellees Other Grounds Are Untimely Cross-Appeals
Appellees did not file notice of cross-appeal, instead asserting in their
answering briefs that the additional arguments are other grounds which may
achieve the same dismissal with prejudice reached in the district court. See, e.g.,
Jud. Brf. (DktEntry 51-1) p. 50, Bierer Brf. (DktEntry 60) p. 16, etc. Appellees
characterization of the varied arguments as other grounds is incorrect.
This Court has broad power to permit or disallow cross-appeals as justice
requires. Lee v. Burlington Northern Santa Fe Ry. Co., 245 F3d 1102, 1107 (9th
Cir. 2001). In determining whether to allow a cross-appeal that has not been
properly noticed, we have considered factors such as: (1) the interrelatedness of the
issues on appeal and cross-appeal; (2) whether the nature of the district court
opinion should have put the appellee on notice of the need to file a cross-appeal;
3

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and (3) the extent of any prejudice to the appellant caused by the absence of notice.
Id.
1. Interrelatedness
Appellees other grounds assert multiple, varied, and distinct affirmative
defenses not interrelated to issues adjudicated by the district court including:

Statutes of limitations defenses aimed at certain civil rights claims (Jud.

Brf. and joinders, Bierer Brf.; Doyne Brf.);

Rooker-Feldman defenses aimed at claims related to state court

proceedings (Fritz Brf., Jud. Brf. and joinders, Doyne Brf.);

Younger abstention never asserted in the district court (Jud. Brf. and

joinders, Doyne Brf.);

Color of law state action defenses aimed at civil rights claims directed

to certain private parties (Jud. Brf. and joinders, Alliance Brf.);

Lanham Act common consumer markets and plausibility defenses

(Fritz Brf., Jud. Brf., Lawyer Brf.);

State law litigation privilege and immunity defenses (Jud. Brf. and

joinders; Bierer Brf., Doyne Brf., Lawyer Brf.);

Various Rule 9(b) particularity/plausibility defenses (all briefs);

Heck v. Humphrey defense (Jud. Brf. and joinders);

Attacks that FAC Section 1985 and 1986 claims are improperly pled

and/or implausible (Jud. Brf. and joinders);

Noerr-Pennington attacks (Alliance Brf.);

Attacks on FAC prospective relief claims for abstention and standing

(Jud. Brf. and joinders; Bierer Brf., Lawyer Brf.);

A Domestic Relations Exception jurisdictional defense (Doyne Brf.);

Attacks on the FAC Unfair Competition Law claims (Laywer Brf.

Plausibility attacks on RICO counts (Laywer Brf., Bierer Brf.)

4

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Etc.

These are not, as appellants allege, other grounds but entirely different
grounds, and thus cross-appeals. A party seeking a substantive change to the district
court judgment must file a cross-appeal. Levine v. Vilsack, 587 F3d 986, 991 (9th
Cir. 2009); Lee v. Burlington Northern Santa Fe Ry. Co., 245 F3d 1102, 1107 (9th
Cir. 2001). An appellee seeking relief in addition to that obtained in the district
court, or to lessen the rights of an adversary must file a cross-appeal. El Paso
Natural Gas Co. v. Neztsosie, 526 US 473, 479 (1999); Doherty v. Wireless
Broadcasting Systems of Sacramento, Inc., 151 F3d 1129, 1131 (9th Cir. 1998).
Appellees cite Tanaka v. Univ. of S. Cal., 252 F.3d 1059 (9th Cir. 2001) in
support of their other grounds argument. The case is inapposite. In Tanaka this
Court affirmed dismissal of an antitrust complaint by taking a different path to the
same result reached by the district courtdismissal of a single antitrust claim. Id.
at 1062. The district court found the plaintiff could not plead the second of three
elements required of an antitrust prima facia casethat a Pac-10 rule penalizing
student athletes transferring between Pac-10 schools was commercial and
therefore subject to antitrust regulation. The district court therefore found the antitransfer rule was not subject to antitrust law, and plaintiff could not state her
antitrust claim. Id.
This Court was uncomfortable adjudicating the difficult issue of Pac-10
anti-transfer rule being commercial. Tanaka at 1062. To obtain the same result this
Court examined another element of the same antitrust claim: whether the transfer
rule met the second prong of the three prong testthe rule of reason. Id. at 1063.
This Court found the Pac-10 rule, even if commercial, did not violate the rule of
reason, and was therefore not anticompetitive. On slightly alternative analysis, this
Court affirmed. Id. at 1064-65.

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Other cases cited by Appellees in support of their other grounds are

analyzed the same waycourts finding alternative means of achieving the identical
ruling in the district court.
None Of The Other Grounds Achieve Sweeping
Dismissal Of The Entire Action Under Rule 8(a)(2)
The relevant decision below was dismissal of the entire action with
prejudice under Rule 8(a)(2). None of the other grounds recited by Appellees can
achieve the same result.
Appellees other grounds are all directed at some, but not all, claims of the
FAC:

Two year statutes of limitations defenses aimed at civil rights claim

cannot defeat RICO claims with five year statutes, etc.;

Rooker-Feldman defenses aimed at Stuart v. Stuart and People v. Stuart

cannot defeat unrelated Stuart Assault (Counts 1, 2), Nesthus (Count 4) and
Commission (Count 5) Obstruction of Justice Claims; Lanham Act, RICO, etc.;

State action defenses aimed at civil rights claims cannot defeat non-

civil rights claims and claims against defendants who admit acting under color of
law;

Lanham Act common consumer markets defenses cant defeat RICO,

civil rights, fraud, etc. claims;

State law defenses cannot defeat federal law claims, federal law

immunities cannot defeat state law constitutional claims;

Immunity defenses cannot defeat claims against municipalities, private

parties, conspiracies, etc.;

Heck v. Humphrey defense cannot defeat non-malicious prosecution

(Count 3) claims;

Section 1985 attacks are targeted to only certain claims, cannot defeat

the entire Count;

6

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Noerr-Pennington attacks cannot defeat clams accusing criminal

conduct, fraud, violence, etc.;

Prospective relief attacks cannot defeat money damages claims, and

money damages claims cannot defeat prospective relief claims;

Domestic Relations Exception defense relates to federal jurisdiction

over community property division and child custody equitable remedies not sought
here;

Etc.

The remaining pleading sufficiency attacks such as plausibility and

particularity require complex analysis under Iqbal and Moss I, and are all curable by
amendment to the FACa first pleading to most defendants. See Stuart Decl.
(below). Dismissal with prejudice before even a single round of amendments would
be error. Foman v. Davis, 371 U.S. 178, 182 (1962); Wyshak v. City Nat. Bank, 607
F.2d 824, 826-27 (9th Cir. 1979). This is particularly true where Stuart pleads in pro
se. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
The other grounds authority Appellees rely on does not contemplate such a
circuitous patchwork means to an end.
2. Appellees Had Notice of Necessity of Cross-Appeal
Appellees asserted most of these arguments in the district court. See Doc.
Nos. 16 (Superior Court Rule 12(b)(6), 22 (Commission on Judicial Performance
and its employees Rule 12(b)(6)); 48, 49, 50, 51, 52, 53, 54, 62, 65, 67, 73, 74 (initial
motions deemed withdrawn by district court on December 19); 131 (Omnibus);
and 134-152, 162-181, 183-188 (18 joinders) (Appellees raise many new arguments
here as well). Appellants jointly opposed. Doc. Nos. 161, 163, 164, 166, 183.
The district court ignored appellees argumentseffectively denying them
dismissing instead on Rule 8(a)(2).

DktEntry 11-3, ER 11-12.

Appellees

Answering briefs acknowledge the district court denied on Rule 8(a)(2) alone. See,
7

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e.g., Jud. Brf. p. 32-41 (and all joinders). Defendants thus understood and received
adequate notice of the district courts rulings against them on every other ground
including those they assert here as other grounds.
California Coalition filed a notice of appeal on July 14, 2014, within five days
of the July 9, 2014 dismissal. ER 1. The Notice of Appeal did not identify any of
the other grounds Appellees assert here because Appellants prevailed on those
issues. ER 1.
3. Prejudice
Finally, prejudice to California Coalition is obviousAppellees have filed 14
briefs containing 50,000 words answering a single brief of 16,000 words that did not
analyze any of the other grounds. Appellees have thus placed analysis before this
Court which Appellants have not had notice to brief, have not briefed, and cannot
brief in the type-volume limits of 7,000 words in a single reply brief as required
under Circuit Rule 28-5 and Federal Rule of Appellate Procedure 32(a)(7).
The District Court Record is Inadequate to Permit
Analysis of Other Grounds
Further, Appellants are prejudiced because there is insufficient record to
adjudicate the other grounds issues raised by Appellees. A trial court owes the
parties and a reviewing court a reasoned resolution of the factual and legal disputes
presented by a case. Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 226-27 (9th
Cir. 2013); Sony Computer Entmt, Inc. v. Connectix Corp., 203 F.3d 596, 608 (9th
Cir.2000) (declining to consider other grounds where insufficient record below).
Appellees asserted, and the district court denied, the varied claims they reassert in answering briefs. On this record there is insufficient matter to enable
substantive analysis or this courts review. Muniz, supra.

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C. Appellants Cannot Adequately Reply to 50,000 Words in 7,000 Words

To comply with FRAP 32(a)(7)(B)(ii) (A reply brief is acceptable if it
contains no more than half of the type volume specified in 32(a)(7)(B)(i)) and to
permit a single joint reply California Coalition requests to permit type volume of the
accompanying reply to be one-half the 50,000 total words in answering briefs, for a
total type-volume limit of 25,000 words in the accompanying reply. Appellants
Reply totals lessabout 20,000 words. This limit is consistent with the type-volume
limit proportions of FRAP 32(a)(7)(B)(i)-(iii). See declaration of Colbern Stuart
under Circuit Rule 32-2 filed herewith.
D. Conclusion
California Coalition submits that adjudication of complex pleading issues in
the first instance on appeal is inappropriate and request that the other grounds
asserted by defendants be treated as untimely cross-appeals and dismissed.
California Coalition has filed herewith a Reply to Answering Briefs limited to the
scope of the Opening Brief, and requests this Court permit the length of this Reply
as proportional to the answering briefs, and adjudicate only the scope of the district
courts rulings and orders, and California Coalitions Notice of Appeal, Opening
Brief, and Reply.
III. ALTERNATIVE GROUNDS: REQUEST FOR CROSS-APPEAL
BRIEFING UNDER FRAP 28.1
In the event the Court is inclined to permit consideration of Appellees other
grounds, Appellants respectfully request leave of reply and type-volume procedure
under FRAP 32(a)(7), and to convert further proceedings to briefing and procedure
for cross-appeals pursuant to FRAP 28.1(c)(3). California Coalition requests to treat
Appellees answering briefs as cross-appeals under FRAP 28.1(c)(2), and adopt
type-volume and cross-appeal procedures consistent with that rule, permitting the
Reply accompanying this motion to serve as part of a combined joint response and
reply under FRAP 28.1(c)(1) and (3).
9

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In case of conversion California Coalition also requests to file a separate

response addressing the new other grounds issues raised in appellees answering
briefs, and set a combined type-volume limit for its principal, response, and reply
briefs pursuant to FRAP 28.1(e)(2)(A) of 87,000 words, calculated as follows:
Appellees briefed 50,000 words in their principal and response briefs.
Following that number they will be entitled to an additional 25,000 words in reply
to their other grounds cross-appeal (FRAP 28.1(e)(2)(C)) for a total of 75,000
words for principal and response, and reply. FRAP 28.1(e)(2)(A), (B), (C)
Under both FRAP 32 and 28.1, total type-volume limits for appellants
principal (and response) and reply briefs are uniformly about 16% greater than
appellees principal (and reply) briefs. Given Appellees total briefing potential of
75,000 words, Appellants submit they should be entitled to a total type-volume of
16% greater, or 87,000 words. Appellants therefore request the following typevolume limits as equitable and appropriate:
Appellants Joint Opening Brief
Appellees Answer/Cross-Appeals
Appellants Reply Brief (filed herewith)
Appellants Response Brief (requested)

:
16,000 words (actual)
:
50,000 words (actual)
:
20,000 words (actual)
:
51,000 words (requested)
Calculated as follows:
87,000 total
- 16,000 (Opening actual)
- 20,000 (Reply actual)
= 51,000 (Response requested)

Appellees Reply Brief (optional)

10

25,000 words (potential)

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IV.

CONCLUSION

California Coalition respectfully requests the Court grant relief as herein

requested.
Respectfully Submitted,

Dated: February 4, 2015

By: s/ Colbern C. Stuart III

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

Dated: February 4, 2015

By: s/ Dean Browning Webb

Dean Browning Webb, Esq.
Law Offices of Dean Browning Webb
Counsel for Plaintiff-Appellant
California Coalition for
Families and Children, PBC

11

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DECLARATION OF COLBERN STUART IN SUPPORT OF MOTION TO

DISMISS UNTIMELY CROSS APPEALS, MOTION TO EXPAND REPLY
BRIEF TYPE-VOLUME LIMITS, ALTERNATIVE MOTION TO
PROCEED AS CROSS-APPEAL
I, Colbern C. Stuart, III declare:
1.

I am a plaintiff-appellant in this action and President of plaintiff-appellant

California Coalition for Families and Children, PBC. I have personal knowledge of
the facts stated herein.
2.

I submit this declaration in support of Plaintiffs-Appellants motion (a) to

Dismiss Untimely Cross Appeals; (b) to Expand Reply Brief Type-Volume Limits;
and (c) Alternative Motion to Proceed As a Cross-Appeal, attached hereto.
3. Appellees fourteen answering briefs and joinders total about 50,000 words
less than the 196,000 (combined) Appellees would be permitted under FRAP
32(a)(7)(B)(i).
4. California Coalitions opening brief (AOB DktEntry 43) is about 16,000
words, extended by permission of this Court (Order, DktEntry 42).
5. Appellees other grounds assert multiple distinct affirmative defenses not
interrelated to issues adjudicated by the district court including:

Statutes of limitations defenses aimed at certain civil rights claims (Jud.

Brf. and joinders, Bierer Brf.; Doyne Brf.);

Rooker-Feldman defenses aimed at claims related to state court

proceedings (Fritz Brf., Jud. Brf. and joinders, Doyne Brf.);

Younger abstention never asserted in the district court (Jud. Brf. and

joinders, Doyne Brf.);

Color of law state action defenses aimed at civil rights claims directed

to certain private parties (Jud. Brf. and joinders, Alliance Brf.);

1

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Lanham Act common consumer markets and plausibility defenses

(Fritz Brf., Jud. Brf., Lawyer Brf.);

State law litigation privilege and immunity defenses (Jud. Brf. and

joinders; Bierer Brf., Doyne Brf., Lawyer Brf.);

Various Rule 9(b) particularity/plausibility defenses (all briefs);

Heck v. Humphrey defense (Jud. Brf. and joinders);

Attacks that FAC Section 1985 and 1986 claims are improperly pled

and/or implausible (Jud. Brf. and joinders);

Noerr-Pennington attacks (Alliance Brf.);

Attacks on FAC prospective relief claims for abstention and standing

(Jud. Brf. and joinders; Bierer Brf., Lawyer Brf.);

A Domestic Relations Exception jurisdictional defense (Doyne Brf.);

Attacks on the FAC Unfair Competition Law claims (Laywer Brf.

Plausibility attacks on FAC RICO counts (Laywer Brf., Bierer Brf.)

Etc.

6. These are not, as appellants allege, other grounds but entirely different grounds,
and thus cross-appeals.
7. Appellees other grounds are all directed at some, but not all, claims of the
FAC:

Two year statutes of limitations defenses aimed at civil rights claim

cannot defeat RICO claims with five year statutes, etc.;

Rooker-Feldman defenses aimed at Stuart v. Stuart and People v. Stuart

cannot defeat unrelated Stuart Assault (Counts 1, 2), Nesthus (Count 4) and
Commission (Count 5) Obstruction of Justice Claims; Lanham Act, RICO, etc.;

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State action defenses aimed at civil rights claims cannot defeat non-

civil rights claims and claims against defendants who admit acting under color of
law;

Lanham Act common consumer markets defenses cant defeat RICO,

civil rights, fraud, etc. claims;

State law defenses cannot defeat federal law claims, federal law

immunities cannot defeat state law constitutional claims;

Immunity defenses cannot defeat claims against municipalities, private

parties, conspiracies, etc.;

Heck v. Humphrey defense cannot defeat non-malicious prosecution

(Count 3) claims;

Section 1985 attacks are targeted to only certain claims, cannot defeat

the entire Count;

Noerr-Pennington attacks cannot defeat clams accusing criminal

conduct, fraud, violence, etc.;

Prospective relief attacks cannot defeat money damages claims, and

money damages claims cannot defeat prospective relief claims;

Domestic Relations Exception defense relates to federal jurisdiction

over community property division and child custody equitable remedies not sought
here;

Etc.

8. The remaining pleading sufficiency attacks such as plausibility and particularity

require complex analysis under Iqbal and Moss I, and are all curable by
amendment to the FACa first pleading to most defendants.
9. Appellees asserted most of these arguments in the district court. See Doc. Nos.
16 (Superior Court Rule 12(b)(6), 22 (Commission on Judicial Performance and
its employees Rule 12(b)(6)); 48, 49, 50, 51, 52, 53, 54, 62, 65, 67, 73, 74 (initial
3

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motions deemed withdrawn by district court on December 19); 131 (Omnibus);

and 134-152, 162-181, 183-188 (18 joinders) (Appellees raise many new
arguments here as well). Appellants jointly opposed. Doc. Nos. 161, 163, 164,
166, 183.
10. The district court ignored appellees argumentseffectively denying them
dismissing instead on Rule 8(a)(2). DktEntry 11-3, ER 11-12. Appellees
Answering briefs acknowledge the district court denied on Rule 8(a)(2) alone.
See, e.g., Jud. Brf. p. 32-41 (and all joinders). Defendants thus understood and
received adequate notice of the district courts rulings against them on every other
groundincluding those they assert here as other grounds.
11. California Coalition filed a notice of appeal on July 14, 2014, within five days of
the July 9, 2014 dismissal. ER 1. The Notice of Appeal did not identify any of
the other grounds Appellees assert here because Appellants prevailed on those
issues.
12. The prejudice to myself and California Coalition is obviousAppellees have
filed 14 briefs containing 50,000 words answering a single brief of 16,000 words
that did not analyze any of the other grounds. Appellees thus have thus placed
analysis before this Court which Appellants have not had notice to brief, have not
briefed, and cannot brief in the type-volume limits of 7,000 words in a single
reply brief as required under Circuit Rule 28-5 and Federal Rule of Appellate
Procedure 32(a)(7).
13. I and California Coalition are also prejudiced because there is insufficient record
to adjudicate the other grounds issues raised by Appellees.
14. Appellees asserted, and the district court denied, the varied claims they re-assert
in answering briefs. However, the district court failed to analyze Appellees
other grounds, denying by ignoring. On this record there is insufficient matter
to enable substantive analysis or this courts review.
4

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15. Appellees briefed 50,000 words in their principal and response briefs. Following
that number they will be entitled to an additional 25,000 words in reply to their
other grounds cross-appeal (FRAP 28.1(e)(2)(C)) for a total of 75,000 words
for principal and response, and reply. FRAP 28.1(e)(2)(A), (B), (C)
16. Under both FRAP 32 and 28.1, total type-volume limits for appellants principal
(and response) and reply briefs are uniformly about 16% greater than appellees
principal (and reply) briefs. Given Appellees total briefing potential of 75,000
words, Appellants submit they should be entitled to a total type-volume of 16%
greater, or 87,000 words.
17. I therefore request the following type-volume limits are equitable and
appropriate:
Appellants Joint Opening Brief

16,000 words (actual)

Appellees Answer/Cross-Appeals

50,000 words (actual)

Appellants Reply Brief (filed herewith)

20,000 words (actual)

Appellants Response Brief (requested)

51,000 words (requested)

Calculated as follows:
87,000 total
- 16,000 (Opening actual)
- 20,000 (Reply actual)
= 51,000 (Response requested)

Appellees Reply Brief (optional)

25,000 words (potential)

Diligence and Substantial Need

18.

Mr. Webb and I have diligently drafted the Reply tailored only to the issues

raised in the district courts orders, Notice of Appeal, and Appellants Joint Opening
5

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Brief, addressing those issues in less than half of the 50,000 words of the answering
briefs. I believe that this proportion of words if fair and equitable.
19.

I cannot, however, address all of the other grounds in the limited space

provided for a reply under Rule 32. Appellees other grounds are far more
numerous and complex than the opening brief or the district courts dismissal.
20.

The issues raised by this case relate to fundamental constitutional rights of

familial association and expression of tens of thousands of California families

throughout California, the legality of Californias family courts and statewide family
law industry, and judicial immunity for state courts throughout this Circuit.
21.

This Courts determination of these issues will have impact on families and

institutions that serve them throughout the State of California and the United States.
Issues decided in this appeal will set precedent nationwide, and in the likely event
of a petition for certiorari from this Courts ruling, potentially resolved further in the
Supreme Court, this Courts precedent will have effect across the nation.
22.

Under these circumstances I believe that the relief requested in the

accompanying motion is warranted.

I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct.
Respectfully Submitted,

Dated: February 4, 2015

By:

Colbern C. Stuart III

Colbern C. Stuart, III, JD

In Pro Se
President, California Coalition for
Families and Children, PBC

Case: 14-56140, 02/04/2015, ID: 9409763, DktEntry: 118, Page 19 of 19

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 4, 2015 per Federal Rules of Appellate
Procedure Ninth Circuit Rule 25-5(g).
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system. Any other
counsel of record will be served by facsimile transmission and/or first class mail
this 4th day of February, 2015.

By: s/ Colbern C. Stuart III

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