I. PRELIMINARY STATEMENT

Specifically abjuring the authority of, among other things, the California Civil Code and the California Code of Civil Procedure (Paragraphs l, 8-12),[1] "construing" this Court as the "seventeenth judicial district of" some unidentified "district court" (Paragraph2), declaring the valid and controlling California Constitution to be the 1849 version of that charter as amended through 1878 but not thereafter (Paragraphs 6a, 6b),), and alleging that the Internal Revenue Service "is a foreign entity'' that "provides collection services for undisclosed foreign principals" and that persons not employed by the federal government have no obligation to pay federal income tax (Paragraphs 3 5-3 8), plaintiffs sue defendant Mike Rinder for libel in a church bulletin that warns a religious congregation that plaintiffs' refusal to recognize their legal obligation to pay federal income taxes is an illegal act.

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FOOTNOTE 1. All references of "Paragraph" followed by a number are to the correspondingly numbered paragraph of plaintiffs' Verified Complaint for Libel ("Complaint").

Plaintiffs, apparently acting wth the "assistance" of a non-lawyer "counsel," have not filed a complaint. Instead, they have filed what amounts to a manifesto espousing anarchy and mob rule. While their pleading offers abundant political rhetoric, revisionist history and tortured constructions of law, it fails to state facts sufficient to constitute a cause of action against Mr. Rinder (or anyone else) for libel (or anything else). Plaintiffs have specifically alleged that the current laws of California--to which they decline to adhere--are nullities which do not form any basis for their supposed cause of action, and that they are defamed when their conduct is characterized as "criminal" because they do not regard federal income tax evasion as a crime.

Since plaintiffs can never pursue any claim under superseded California law and--whether they like it or not--income tax evasion is criminal conduct, not only are defendant's demurrer and concurrently filed Motion to Strike the Complaint both well taken, it is also clear that the Complaint can never be converted from a polemic into a cognizable claim. Accordingly, the Complaint should be dismissed without leave to amend.

II THE COMPLAINT

Appearing in propria persona, but emphatically not "pro se," and with the "assistance of 'counsel' by Right" under the superseded 1849 version of the state constitution (Paragraph1), plaintiffs begin their Complaint by declaring the 1849 version of the California Constitution as amended through 1878 to be the operative charter and that all succeeding versions are null (Paragraphs 1, 6a-6b). Plaintiffs then declare themselves, the defendants, and this Court to be subject to that version of the state constitution and not any succeeding version of it and further declare that neither they, the defendants, nor the Court is subject to either the Civil Code or the Code of Civil Procedure (Paragraph 1) upon some incoherent, but lengthy, theory about a defect in legislative procedure that supposedly occurred in 1872 (Paragraphs 1, 7-12).

Having liberated themselves from the existing state constitution and having construed as void ab initio all California statutes affecting civil causes end civil procedure passed since 1872 (Paragraphs 1, 8-1 2). plaintiffs next inform the Court that, for the purposes of this action, it is to regard itself as the "seventeenth judicial district" of some sort of "district court," as defined by the 1849 version of the state constitution and some vaguely referenced public law of 1872 which plaintiffs apparently are willing to tolerate as valid (Paragraph5). Plaintiffs also "demand that the Court take Judicial notice" of their arcane constitutional interpretation and adopt the 1849 constitution as amended through 1878 to the exclusion of the actual Constitution (Paragraphs 6a-6b) and warn defendant that his reliance upon the operative statutes of this state will be "expressly construed by the plaintiffs" in accordance with their bizarre legal conclusion that this is 1872 rather than 1997 and dealt wth accordingly (Paragraph 12).

Nearly half of the Complaint is devoted to the foregoing legal gibberish. When they do attempt to define the libel upon which they purport to sue, they reveal their alleged cause of action to be as grotesque and legally defective as their interpretation of California legal history. Pointing to a February 9, 1997 church bulletin (Paragraph 13), which they ascribe to defendant Rinder because (1) he is "the head of the Office of Special Affairs International" (Paragraph 3), (2) the bulletin of which they complain displays the legend " 1997 CSI"' (Paragraph 15A), and (3) "the ultimate authorty" to produce the bulletin "would have to have come from Mike Rinder" (Paragraph 19, emphasis deleted), plaintiffs claim to have been defamed. The bulletin (Complaint, Ex. A) warns parishioners of the Scientology religion that so- called tax avoidance schemes espoused by plaintiffs and others--whom the Internal Revenue Service designates as "tax protestors" (Complaint, Ex B)) amount to income tax evasion and are illegal under criminal provisions of federal law, and that advocates of such schemes have been prosecuted and jailed. Plaintiffs apparently object to the bulletin's characterizations of them and their activities as "illegal" (Paragraph 23), the bulletin's use of the word "facts" in some general sense (Paragraphs 24-26) and the bulletin's characterization of persons who promote such schemes as "criminals" (Paragraph 26)

Plaintiffs' libel allegations then continue along their fatal course to their ultimate legal demise. Plaintiffs allege that the statements they characterize as libelous "cannot be true" (Complaint, p. 10, 1) because they are under no legal obligation to pay federal income tax. The allegations that lead plaintiffs to that remarkable legal conclusion are their averments that:

* Congress never created the Bureau of Internal Revenue (Paragraph 29), nor authorized its name to be changed to the Internal Revenue Service (Paragraph 30);
* The IRS "and/or the Bureau of Alcohol, Tobacco and Firearms" is not an agency of the United States Department of the Treasury (Paragraph 31);
* The federal government has no authority to establish revenue districts or extend the authority of the Treasury Department or its personnel into or within "any of the several states" (Paragraphs 32-32d, emphasis deleted);
* The Code of Federal Regulations defines "revenue agent" and "secretary" as used in the Internal Revenue Code and its regulations as the Secretary of the Treasury of Puerto Rico and commonwealth revenue agents of the Department of Treasury of Puerto Rico (Paragraphs 33-33c, emphasis deleted);
* The Internal Revenue Code contains no provisions for assessment or collection of income taxes by the IRS or BATF other than in the District of Columbia, Puerto Rico, Guam and the Virgin Islands (Paragraph34).
* While "everyone is "led to believe"' that the IRS collects revenue for "the benefit of constitutional United States government operation" (Paragraph 36), it in reality "is a foreign entity" (Paragraph35), "contracted to provide collection services for the Agency for International Development"" (Paragraph 36) which apparently represents the interests of "the International Monetary Fund and the World Bank" (Paragraph 36); and
* The only persons specifically liable for federal income taxes under the Internal Revenue Code are "federal officers and employees" (Paragraphs 37-38).

Accordingly, "[t]he plaintiffs, and each of them, hereby aver that they are not presently such a 'federal officer or employee', and are therefore not subject to the Internal Revenue Service, and the libel herein is hereby conclusively proven." (Paragraph 38).

III, ARGUMENT

A. The Complaint Fails to State Facts Sufficient to Constitute a Cause of Action Against Mr. Rinder and No Possible Amendment Can Convert Plaintiffs' Pleading Into a Legally Cognizable Claim.

The sole function of a demurrer is to challenge the legal sufficiency of a pleading. Century Indemnity Co. v Superior Court (1996) 50 Cal. App. 4th 1115, 1118 n. 6, 58 Cal. Rptr. 2d 69, 71 n. 6, quoting Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 213, 197 Cal Rptr. 783, 793. A demurrer is properly sustained when the Complaint, taken as a whole and reading its parts in context, fails to state facts sufficient to constitute a cause of action against the demurring defendant. C.C.P. Section 430.10 (e), Cross v. Bonded Adjustment Bureau (1996) 48 Cal App. 4th 266, 275, 55 Cal. Rptr. 2d 801, 805.[2]

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FOOTNOTE 2 In demurrer procedure, parties such as plaintiffs, appearing in propria persona, are ''to be treated like any other party and [are] entitled to the same, but no greater consideration, than other litigants and attorneys." Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal. App. 4th 1200, 1210, 51 Cal. Rptr. 2d 328, 334.

For purposes of that legal analysis, the demurrer provisionally admits "all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law....," Cross v. Bonded Adjustment Bureau, supra, at 275, 55 Cal. Rptr. 2d at 805 quoting BIank v. Kirwan (1985) 39 Cal 3d 311, 318, 216 Cal. Rptr 718, 721. That is a critical distinction here, where the Complaint is more a tract than a pleading, and consists essentially of legal conclusions regarding plaintiffs' eccentric interpretations of federal and state law.

Here, casting aside the Complaint's extraneous commentary and immaterial conclusory matter, the alleged cause of action is that the characterizations of plaintiffs and their conduct is defamatory because neither they, nor anyone else not employed by the federal government, are legally obliged to pay federal income taxes. Such a cause of action is impossible because their legal conclusions about federal taxation are contrary to law, and nothing can ever change the fact that on February 7, 1 997--the date of the purported libel--that they were indeed obliged to pay such taxes. As their alleged cause of action rises or falls on their assertion that they are not so obliged--and there can be no question about either the existence of that obligation[3] or the exclusive jurisdiction of the federal court system even to address the vitality of the Internal Revenue Code--plaintiffs have failed to state facts sufficient to state a cause of action.

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FOOTNOTE 3: The Internal Revenue Code imposes a tax on the income of every individual who is a citizen or resident of the United States. 26 U.S.C. Section l(c); Treas. Reg. Sections1.1-l(a)(l), 1.1-l(b). Plaintiffs' contention that income tax can only be assessed in federal enclaves and the District of Columbia has been repeatedly rejected as patently meritless. See, e.g., In re Becraft (9th Cir. 1989) 885 F.2d 547, 548 n. 2. United States v. S1udley (9th Cir. 1986) 783 F 2d 934, 937.

Since no repleading or amendment can correct that fatal flaw, this demurrer should be sustained without leave to replead. "Leave to amend should be denied where the facts arc not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law, no liability exists. Obviously, no amendment would change the result." 5 B. WITKIN, CALIFORNIA PROCEDURE (4th ed .) Pleading Section 946, p. 403 (1997); Heckendorn v. San Marino (1986) 42 Cal. 3d 481, 489, 229 Cal. Rptr. 324, 329.

In this case, the nature of plaintiffs' actual claim is clear enough, but the substantive law of federal taxation is even clearer that no liability can ever flow from the Complaint. Maintenance of this action would represent only an unfair financial burden on the defendant and an unnecessary imposition on the time and resources of the Court. Accordingly, the demurrer procedure is properly employed to terminate the action with prejudice:

How does a court, confronted with a defective pleading of nondescript appearance and uncertain ancestry, determine whether the pleading is susceptible of future domestication into the recognizable flock of justiciable causes of action? In final analysis, the court is required to look at the existing pleading and hazard its best judgment whether behind the words of the pleading anything of legal substance lies, whether on further revision the pleading can honestly state a cause of action.

Hills Transportation CO. vs. Southwest Forest Industries (1968) 266 Cal. App. 2d 702, 709, 72 Cal. Rptr. 441, 446 (upholding grant of demurrer without leave to amend when amended pleading suppressed destructive facts pled in a superseded version of the pleading). The circumstance here does not allow for any amendment to overcome what already has been pled--i.e., that the alleged libel is defamatory because plaintiffs are not obliged to pay federal income taxes. It would be an exercise in futility to permit plaintiffs another opportunity to plead the impossible, because the fundamental premises of the Complaint conclusively foreclose any statement of facts that might render their purported claims viable.

Thus the Complaint is ripe for dismissal without leave to amend because there is no reasonable possibility that the defect--impossibility as a matter of law--can be cured by amendment. "The burden of proving such reasonable possibility is squarely on the plaintiff...." Blank v Kirwan supra, 39 Cal. 3d at 318. 216 Cal. Rptr. at 722. That is a burden these plaintiffs cannot meet.

H. A Motion to Strike Is Properly Granted Against a Complaint That Fails to identify a Primary Right to Be Vindicated.

On a motion to strike brought under C.C.P. Section 435 (b)(1),[4] the Court is empowered to "[s]trike out all or any part of any pleading not drawn in conformity with the laws of this state...." C.C.P Section 436 (b). This Complaint, in which plaintiffs specifically abjure the validity of the Civil Code (which contains the statutory basis for bringing libel claims in California)) and the Code of Civil Procedure (which governs maintenance and prosecution of all civil clams), as well, all constitutional doctrine in this state from 1878 until the present, is patently "not drawn in conformity with the laws of this state." It thus should be stricken altogether and with finality.

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FOOTNOTE 4 C.C.P. Section 435 (b)(1) provides, in pertinent part, that: Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof....

Motions to strike complaints in whole or in part are well taken when the complaint amounts to a sham or when it fails "to state facts showing a primary right of the plaintiff and a primary duty of, or wrong committed by, the defendant." PH ll, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683, 40 Cal. Rptr. 2d 169, 171 (claim for attorney's fees against attorney for withdrawing, without client consent, a claim for third-party accounting malpractice after Supreme Court ruled in another case that there is no such liability); Ricard v. Grobestein, Goldman, Stevenson, etc. ( 1992) 6 Cal. App. 4th 157, 162, 8 Cal. Rptr. 2d 139. 142 (sham complaint stricken as plaintiff admitted it was filed solely to circumvent an earlier adverse ruling); Lodi v. Lodi (1985) 173 Cal. App. 3d 628, 630-31 , 219 Cal. Rptr. 116, 118

In Lodi, the plaintiff, acting in propria persona as "reversioner" of a trust supposedly created by his birth certificate sued himself as "beneficiary" of that "trust," and appeared in propria persona in his own defense as well. In analyzing what it characterized as "a slam- dunk frivolous complaint" id. at 630, 219 Cal. Rptr. at 118, the court held that every lawsuit in California must present "a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant" as well as "a delict or wrong done by the defendant which consisted in a breach of such primary right and duty." Id. at 631, 219 Cal. Rptr. at 1 18 (emphasis in original).

The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.

Id. (emphasis in original).

This Complaint is as devoid of a cause of action as was the Lodi complaint. There is no primary right, no primary duty, and no breach of that duty in a circumstance where plaintiffs allege that characterizations of their refusal to pay federal income taxes as illegal or criminal arc libelous because plaintiffs insist that only employees of the federal government are legally obligated to pay such taxes. Consequently, the holding of the Lodi court is controlling here. Thus, just as in Lodi:

[P]laintiff's complaint fails to state facts showing a primary right by plaintiff or a primary duty devolving on defendant or a wrong done by defendant.... Consequently, the complaint was not drawn in conformity with the laws of this state and was thus properly subject to the court's own motion to strike under section 436, subdivision (b).

Id.; see PH II, inc. v. Superior Court, supra, at 1682, 40 Cal. Rptr. 2d at 171 (when substantive defect is apparent on the face of the complaint, "the defendant should not have to suffer discovery and navigate the often dense thicket of proceedings in summary adjudication").

IV. CONCLUSION

For all the foregoing reasons, and for the sake of preventing this "slam-dunk frivolous complaint" from occupying any more of the time and resources of a busy Court, this demurrer should be sustained in full without leave to amend, and the accompanying Motion to Strike should be granted so the Complaint is forever stricken. Nothing more or less is warranted by a Complaint that is a legally meaningless adventure in extremism.

Dated: August 25, 1997

Respectfully submitted,
LAW OFFICES OF WILLIAM T. DRESCHER
By: (SIGNATURE:WILLIAM T. DRESCHER)

William T. Drescher

Attorneys for Defendant MIKE RINDER