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Ruling on a motion to dismiss will be “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 679 (alteration in

original; internal quotation marks and citation omitted).

Ill. |. STANDARDS FOR PLAINTIFF

On a motion to dismiss, the allegations of the complaint must be accepted as true.!? The
court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the
“well-pleaded” allegations of the complaint.'> Thus the plaintiff need not necessarily plead a
particular fact if that fact is a reasonable inference from facts properly alleged.'4

In general, the complaint is construed favorably to the pleader.'> So construed, the court
may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of the claim which would entitle him or her to
relief.!° In spite of the deference the court is bound to pay to the plaintiff's allegations, however,
it is not proper for the court to assume that “the [plaintiff] can prove facts which [he or she] has
not alleged, or that the defendants have violated the . . . laws in ways that have not been

alleged.” !7

”? Cruz v. Beto, 405 U.S. 319, 322 (1972).

83 Retail Clerks Intern. Ass’n., Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n.6
(1963).

"4 Wheeldin v. Wheeler, 373 U.S. 647, 648 (1963) (inferring fact from allegations of complaint).

'S Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

'© Hishon v. King & Spalding, 467 U.S. 69 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46
(1957).

'” Associated General Contractors of California, Inc. v. California State Council of Carpenters,
459 U.S. 519, 526 (1983).

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4. Defendants Motion to Dismiss 12(b)(1) & 12(b)(6) should be dismissed and
Defendant held to answer.

5. Leave to amend should be granted even if the plaintiff did not request leave,
unless it is clear that the complaint cannot be cured by the allegation of different or additional
facts.'® In determining whether to grant leave to amend a complaint, a district court is guided
by Rule 15(a), which states that “leave shall be freely given when justice so requires.”!?

6. Plaintiff requests that if pleadings have not shown a prima facie case and is
correctable by amendment clarifying or adding additional facts, leave of this court to amend is

required, or in the alternative, leave for more definite statement.

ds Plaintiff has stated a claim for which relief can be granted.

July 17, 2017 Respectfully

Plaintiff Pro Se

18 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

® Allen v. City of Beverly Hills, 911 F.2d 367, 343 (9th Cir. 1990) (internal quotation marks
omitted).

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24
25
26
27
28

to state aclaim are 'tarely granted."° The standard for dismissal under Rule 12(b)(6) is a
stringent one. "[A] First Amended Complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support

of his claim which would entitle him to relief."? The purpose of a motion under Federal
Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief in the
First Amended Complaint.’ The First Amended Complaint must be construed in the light
most favorable to the nonmoving party and its allegations taken as true.”

It is not aprocedure for resolving a contest about the facts or the merits of the case. In
reviewing the sufficiency of the Complaint, the issue is not whether the Plaintiff will
ultimately prevail, but whether the Plaintiff is entitled to offer evidence to support the claims
asserted. !° Furthermore, the U.S. Supreme Court has held that to survive a motion to dismiss, a]
Complaint must contain sufficient factual matter, accepted as true, would "state a claim to
relief that is plausible on its face"'' Federal Rule of Civil Procedure 12(b)(6) allows an attack
on the pleadings for failure to state a claim upon which relief can be granted. “[W]hen ruling on
a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson, 551 U.S. at 94. “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id. (citation and internal quotation marks

omitted).

6 Gilligan v. Jamco Dev. Corp, 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

? Hartford Fire Ins. Co. v.California, 509 U.S. 764, 811 (1993) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993) .

® Rutman Wine Co. v. E. &J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987).

? Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

19 Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

1! Bell Atlantic Corp. v. Twombly, 55 US 544 (2007).

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IV. ADDRESSING DEFENDANTS SPECIFIC ARGUMENTS

Defendant DEPARTMENT OF MOTOR VEHICLES (hereinafter DMV),
DEPARTMENT OF CONSUMER AFFAIRS (herinafter DCA), AND BUREAU OF
AUTOMOTIVE REPAIR (herinafter BAR); each move to dismiss Plaintiffs complaint based on
7 arguments.

Defendants jointly argue dismissal on the below listed arguments.

For the sake of brevity and consistency Plaintiff herein will make reference to and allude
to his arguments in Opposition to Defendants FIGHTMASTER and DCSS, GORMAN, AND
SIMON motion to dismiss.

With respect to the three Defendants arguments, they first raise that pursuant to Rooker-
Feldman, the court otherwise lacks subject matter jurisdiction. In response Plaintiff refers to and
references and incorporates his Opposition to this argument as raised by the above mentioned
Defendants in their motion to dismiss.

Defendants next argue that Plaintiff fails to establish article III standing against the DMV
where they erroneously argue in essence that these Defendants never participated in any
wrongful conduct against the Plaintiff. This argument fails to acknowledge that they directly
participated in the actual taking of Plaintiffs license rights (property) as extended by their official
function. This argument fails to acknowledge that they directly participated in the actual
violating of Plaintiffs due process rights regarding hearings as extended by their official function,

Defendants next argue that the DMV is not a "PERSON" under 1983.

Although this claim may be well taken it ignores the fact that the Plaintiffs complaint also}

alleges constitutional deprivation of his rights protected under the Sth and 14th amendments.

OPPOSITION TO MOTION TO DISMISS Page §



MARK T. ANDREWS
3436C MENDOCINO AVE
SANTA ROSA, CA 95403
707-280-7425
nottobetakenaway@live.com
Plaintiff Pro Se

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA "
witl

CASE NO: 17-cv-0252-DMR—
JUDGE: William H. Orrick

MARK ANDREWS;

Plaintiff,
OPPOSITION TO MOTION TO DISMISS
DEFENDANT DEPARTMENT OF MOTOR
VEHICLES, DEPARTMENT OF
CONSUMER AFFAIRS, AND BUREAU OF
AUTOMOTIVE REPAIR

vs.

CALIFORNIA DEPARTMENT OF
CONSUMERS AFFAIRS;
SONOMA COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES;
CALIFORNIA DEPARTMENT OF MOTOR
VEHICLES;
CALIFORNIA BUREAU OF AUTOMOTIVE
REPAIR; LOUISE BAYLES
FIGHTMASTER, in her official capacity as
the commissioner appointed by state court
judges; KIRK GORMAN, in his official
capacity as the attorney for the Department of
Child Support Services; Kathy Simon in her
official capacity as case worker for Child
Support Services;
DOES | through 20;

Defendants.

DATE FILED: January 17, 2017

DATE: July 19, 2017
TIME: 2PM
DEPT: 2-17th floor

eS SSS SS SS SS SS SSeS eS Swerve

NOTICE OF OPPOSITION TO MOTION TO DISMISS DEFENDANT DEPARTMENT
OF MOTOR VEHICLES, DEPARTMENT OF CONSUMER AFFAIRS, AND BUREAU
OF AUTOMOTIVE REPAIR

OPPOSITION TO MOTION TO DISMISS Page Fl



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Defendants next argue that Plaintiff claims are barred by the 11th amendment which
proscribes suits against state agencies. This argument fails to address the names and capacity of
all the named parties in Plaintiffs FAC who clearly are not sued as state agencies.

Defendants next assert that Plaintiffs claims are barred by res judicata and collateral
estopple. For the sake of brevity and consistency Plaintiff herein will make reference to and
allude to his arguments in Opposition to Defendants FIGHTMASTER and DCSS, GORMAN,
AND SIMON motion to dismiss.

Defendants next claim that Plaintiffs claim against DMV are barred by the applicable
statute of limitations. This argument ignores the holding in Bulloch supra as to the operative
facts evolving the doctrine of laches. And also ignores Plaintiffs previous arguments concerning
fraud upon the court and its effect on the running of the statue of limitations.

Defendants wholly ignores the allegations in Plaintiffs FAC when Defendants argue that
Plaintiffs due process allegations have no merit. For example see Plaintiffs responses to the
Defendants earlier arguments and note the facts and the case authority already referred to in
Plaintiff Opposition to the two other set of Defendants arguments in their Motion to Dismiss.

CONCLUSION

ic Plaintiff has demonstrated a prima facie case, wherein there are facts presented
and in accordance with relief requested.

vas Plaintiff has shown it is not proper to dismiss his prima facie case under the
Fed.Civ.R 12(b)(1) Motion,

3. Plaintiff has shown it is not proper to dismiss his prima facie case under the

Fed.Civ.R 12(b)(6) Motion.

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Please take notice that on the above date and time, or as soon thereafter as the matter ma:
be heard, in Courtroom 2-17" Floor of the United States District Court located at 450 Golden
Gate Avenue, San Francisco, California, Plaintiff Mark T. Andrews, will and hereby does move
the Court under Fed.Civ.R 12(b)(1) & Fed.Civ.R 12(b)(6) for an order denying Defendants
Motion to Dismiss, or in the alternative, leave of court to file a more definite statement and]
Amended Complaint.

July 17, 2017

— Plaintiff Pro Se

ens
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MEMORANDUM OF POINTS AND AUTHORITIES

I. STANDARD OF REVIEW FOR PRO SE PLEADINGS

Plaintiff admits to some technical missteps attributable to the learning curve. However,
none of which is fatal to his claim as will be demonstrated below. The Plaintiff is proceeding
without the benefit of legal counsel. Additionally, he is not a practicing attorney nor has he been
trained in the complex study of law. As such, Plaintiff's pro se papers are to be construed
liberally.' “A pro se litigant should be given a reasonable opportunity to remedy defects in his
pleadings if the factual allegations are close to stating a claim for relief.”* Accordingly such
pleadings should be held to a less stringent standard than those drafted by licensed, practicing
attorneys.’ The Court is the Guardian of ‘my’ liberties and "Court errs if court dismisses pro se
litigant without instruction of how pleadings are deficient and how to repair pleadings." In
addition, in considering a motion under Rule 8 (a), courts should liberally construe the complaint
of a pro se litigant in his or her favor.’ “Federal Rule of Civil Procedure 8(a)(2) requires only a
short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts
are not necessary; the statement need only give the defendant fair notice of what the ... claim is
and the grounds upon which it rests.”>

Il. STANDARD FOR DISMISSAL UNDER Fed.Civ.R. 2(b)(6)
Motions to dismiss for failure to state a claim under Federal Rules of Civil

Procedure, Rule 12(bX6) are viewed with disfavor, and, accordingly, dismissals for failure

' Haines v. Kerner, 404 U.S. 519-20, (1972).

? Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

3 Platsky v. CIA, 953 F.2d 25, 26 28 (2nd Cir. 1991),

4in MARIA APOSTOLIDIS v. JP MORGAN CHASE & CO., 2012

5 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (ellipsis in original; internal quotation marks
omitted).