we

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 plaintiffs 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).

'3 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).

'6 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).

OPPOSITION TO MOTION TO DISMISS Page 5



arguments see Plaintiff's response to Defendant Fightmaster motion to dismiss in this regard. See
Bulloch supra and Universal Oil supra.

Defendants argue that the statute of limitations should cause Plaintiffs complaint be
dismissed. This argument fails to address the statute of limitations for fraud which evoke a wider
period than claims for personal injury and property claims. Also see in Opposition to Defendants
Fightmasters claim, the bar of statute of limitations Bulloch supra.

Next the Defendants raise the bar of res judicata and collateral estoppel. This argument
ignores the salient facts that the statute of limitation only began to run from the date when the
Defendants decided to refrain from temporarily refraining from further prosecuting the Plaintiff
on or about February 2017.

Defendants next claim that GORMAN has abolute immunity from Plaintiffs claim, as
cited above in Monell supra; Hardwick supra and Sheehan supra; which all noted that absolute
immunity does not always protect a party who at the most enjoys qualified immunity.

Defendants erroneously cite the overall application and interpretation of Monell in its
holding which was expanded by the decision in Humphries supra.

Defendants erroneously claim that Plaintiffs FAC does not state a cognizable theory
against SIMMON. This argument ignores the overall holding in Bulloch supra as fully alluded to}
in Plaintiffs Opposition to Dismiss by FIGHTMASTER as stated therein that a Plaintiffmay
state a claim which includes parties who have ultimately caused the Judge to not perform her
judicial function and thus causing the impartial functions of the Court to be directly corrupted.
See Bulloch supra.

CONCLUSION

OPPOSITION TO MOTION TO DISMISS Page 8



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 ofa motion under Federal

Rule 12(b)(6) is to test the formal ssufficiency 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).

° 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).

10 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).

OPPOSITION TO MOTION TO DISMISS Page 4



coo Om ND NH PB HN

Iv. ADDRESSING DEFENDANTS SPECIFIC ARGUMENTS

Defendant SONOMA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES
(hereinafter DCSS); and Defendant KIRT GORMAN (herinafter GORMAN, and Defendant
KATHY SIMON (herinafter SIMON); each move to dismiss Plaintiffs complaint based on 6
arguments.

These arguments initially state that Plaintiff has failed to argue that he is entitled to
Federal subject matter jurisdiction. Pursuant to the foregoing Defendants Motion to Dismiss
should be denied because Plaintiff amended complaint as cited above argues that his
constitutional rights have been abridged by the actions of the named defendants and his statutory
rights as mentioned above have been further abridged.

In support of their motion to dismiss Defendants state that Plaintiffs FAC should be
dismissed because it lacks subject matter jurisdiction.

This assertion fails to recognize clear cut case and statutory authority supporting
Plaintiffs claims.

In support of Plaintiffs claims that he was denied a fair hearing see the case authority of
Los Angeles County; California vy Humphries No. 09-350 Supreme Court of the United States
which relies on the authority of Monell'® and concludes that pursuant to the Monell holding the
claimants were protected in seeking relief from the Court pursuant to title 42 1983. See also Gray|
v Superior Court of Napa County A107367! where the court held that the Napa Superior Court
violated Petitioners due process rights when it suspended his license as a condition of bail.

Furthermore the appellate court held that underlying court violated Grays rights by failing]
to first provide him with a fair hearing on the charges.

'S Monell v New York City Department of Social Services 436 US 658
" See also Gray v Superior Court of Napa County A107367

aa
OPPOSITION TO MOTION TO DISMISS Page



a

RN NN YN DNDN DN BS B&B Bw Be ew me ee
eo IYA DA FON = SSO we ADA Bw HY |

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

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

33. Plaintiff has shown it is not proper to dismiss his prima facie case under the
Fed.Civ.R 12(b)(6) Motion.

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

ay 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.

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

July 17, 2017 Respectfully

Plaintiff Pro Se

» 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).

OPPOSITION TO MOTION TO DISMISS Page 9}



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 L WD
Vv

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

MARK ANDREWS;

Plaintiff,
OPPOSITION TO MOTION TO DISMISS
DEFENDANT SONOMA COUNTY
DEPARTMENT OF CHILD SUPPORT
SERVICES and KIRT GORMAN; and
KATHY SIMON

vs.

CALIFORNIA DEPARTMENT OF
CONSUMERS AFFAIRS;
SONOMA COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES;
CALIFORNIA DEPARTMENT OF MOTOR )
VEHICLES; )
CALIFORNIA BUREAU OF AUTOMOTIVE) DATE: July 19, 2017
REPAIR; LOUISE BAYLES ) TIME: 2PM
FIGHTMASTER, in her official capacityas |) DEPT: 2-17th floor
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 )
)
}
)
)

DATE FILED: January 17, 2017

Support Services;
DOES | through 20;
Defendants.

NOTICE OF OPPOSITION TO MOTION TO DISMISS DEFENDANT SONOMA
COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES and KIRT GORMAN; and
KATHY SIMON

OPPOSITION TO MOTION TO DISMISS Page 1



Also with regard to Defendants claim that Plaintiff has not invoked Subject Matter
Jurisdiction see Hardwick” where the Ninth Circuit Court of Appeal held that the County of
Orange violated Hardwick's 4th & 14th amendments rights by using perjured testimony and
fabricated evidence in Juvenile Dependency proceedings that resulted in the mother losing
custody of the child.

Finally see City and County of San Francisco California et al v Sheehan! which was
alluded to by the Hardwick court supra when Hardwick stated that as the Supreme Court
repeated in Sheehan, Officials who knowingly violate the law are not entitled to immunity.
(quoting Ashcroft 131 SCt. 2085).

Plaintiff argues in his overall complaint that his Sth and 14th constitutional amendment
rights have been abridged throughout underlying state court proceeding due to the facts that the
underlying state court proceedings denied him his right to property and due process by failing to
give him notice and a fair opportunity to be heard. Also Plaintiffs complaint cites statutory
protection provided him as a citizen of the United States pursuant to the provisions of title 42
USC §1983, §1985, $1986, §1988. In accordance with the foregoing liability see Owen v. City o
Independence (1980) United States Supreme Court, which held a municipality has no immunity
from liability under 1983 flowing from its constitutional violations and may not assert the good
faith of its officers as a defense to such liability.

In referencing Defendants motion to dismiss, Defendants argue that the Rooker-Feldman

Doctrine applies and that the Younger abstention applies. In response to these misplaced

20 Hardwick v County of Orange 844 F.3d 1112 (2017)
21 City and County of San Francisco California et al v Sheehan No 13-1412 (Decided May 18,

2015) |

OPPOSITION TO MOTION TO DISMISS Page 7|



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 mova
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

OPPOSITION TO MOTION TO DISMISS Page 2



OPPOSITION TO MOTION TO DISMISS Page 3

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(b\6) 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

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