Liberi V Orly Taitz Appellees MTS Portions of Reply SER Sanctions and Atty Fees and Costs Doc 42-1

Case Numbers: 11-56079 and 11-56164
(Consolidated February 3, 2012)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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LISA LIBERI, et al,
Plaintiffs/Appellees,

vs.
ORLY TAITZ, DEFEND OUR
FREEDOMS FOUNDATIONS, INC., et al,
Defendants/Appellants.
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On Appeal from the United States District Court,
Central District of California, Southern Division
Case No. 8:11-cv-00485
Honorable Andrew Guilford
APPELLEES MOTION TO STRIKE PORTIONS OF APPELLANT ORLY
TAITZS REPLY BRIEF AND SUPPLEMENTAL EXCERPT OF RECORD;
FOR SANCTIONS; AND ATTORNEY FEES
Philip J. Berg, Esquire (PA Bar No. 09867)
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
Ph: (610) 825-3134
Fax: (610) 834-7659
Email: philjberg@gmail.com
Attorney for Appellees, Lisa Liberi, Lisa
Ostella, Go Excel Global, Philip J. Berg,
Esquire and the Law Offices of Philip J.
Berg
Case: 11-56079 04/23/2012 ID: 8148756 DktEntry: 42-1 Page: 1 of 22
i
TABLE OF CONTENTS
Pages
TABLE OF CONTENTS.......i
TABLE OF AUTHORITIES.........ii-v
STATEMENT OF FACTS.1-2
ARGUMENT...2-13
I. ARGUMENTS and EVIDENCE PRESENTED
for the FIRST TIME in a REPLY BRIEF are
WAIVED and MUST BE STRICKEN .3-7
II. ARGUMENTS and EVIDENCE INTRODUCED
for the FIRST TIME in an APPEAL will NOT
BE CONSIDERED .......................................8-9
III. SANCTIONS AGAINST JEFFREY
CUNNINGHAM, ESQ. AND HIS CLIENT,
ORLY TAITZ, ESQ. ARE WARRANTED9-13
IV. CONCLUSION...13
ii
TABLE OF AUTHORITIES
Cases Page(s)
Aloe Vera of America, Inc. v. United States,
376 F.3d 960 (9th Cir. 2004)...12
B.K.B. v. Maui Police Dept.,
276 F.3d 1091, 1107-08 (9
th
Cir. 2002)...11, 12, 13
Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985)..7
Carmen v. San Francisco Unified Sch. Dist.,
237 F.3d 1026, 1030 (9th Cir. 2001).9
Cedano-Viera v. Ashcroft,
324 F.3d 1062, 1066 n.5 (9th Cir. 2003)...7
cf. Carrigan v. Cal. State Legislature,
263 F.2d 560, 564 (9th Cir. 1959)...10
Chambers v. Nasco, Inc., 501 U.S. 32, 45-50 (1991)11, 12
Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu,
2006 U.S. App. LEXIS 16837; 455 F.3d 910 (9
th
Cir. July 6, 2006)....9
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990)...7
Estate of Blas, 792 F.2d 858, 860 (9th Cir. 1986)...12
Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).12
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)7
In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9
th
Cir. 2009)..12
Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9
th
Cir. 2002)...8
Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988).9
iii
TABLE OF AUTHORITIES - Continued
Cases Page(s)
Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)..6
Lentini v. Cal. Ctr. for the Arts,
370 F.3d 837, 843 n.6 (9th Cir. 2004)...7
Liberi, et al v. Defend our Freedoms Foundations, Inc.,
U.S. Court of Appeals for the Ninth Circuit, Case No. 11-560792, 3
Liberi, et al v. Orly Taitz, et al,
U.S. Court of Appeals for the Ninth Circuit, Case No. 11-56164.2, 3
Liberi, et al v. Taitz, et al,
U.S. Court of Appeals for the Third Circuit, Case No. 10-3000...1
MacDonald v. Grace Church Seattle,
457 F.3d 1079, 1086 (9th Cir. 2006).8
New Alaska Dev. Corp. v. Guetschow,
869 F.2d 1298, 1306 (9th Cir. 1989)...12
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9
th
Cir. 2009)..8
Peterson v. Highland Music, Inc.,
140 F.3d. 1313, 1321 (9th Cir. 1998)9
Smith v. Marsh, 194 F.34d 1045, 1052 (9
th
Cir. 1999)..8
United States v. Elias, 921 F.2d 870, 874 (9
th
Cir. 1990)..8
United States v. Rearden,
349 F.3d 608, 614 n.2 (9th Cir. 2003)...........7
iv
TABLE OF AUTHORITIES - Continued
UNITED STATES CODE
Page(s)
28 U.S.C. 192710, 11
FEDERAL RULES OF APPELLATE PROCEDURE
Page(s)
Fed. R. App. P. 46(c)...11
NINTH CIRCUIT LOCAL RULES
Page(s)
Local Rule 30-1...10
Local Rule 30-2.10, 11
Local Rule 46-2.10, 11
NINTH CIRCUIT ADVISORY COMMITTEE NOTES TO RULE 46-2
Page(s)
Note 3..10
v
TABLE OF AUTHORITIES Continued
NINTH CIRCUIT ADVISORY COMMITTEE NOTES TO RULE 46-2
Page(s)
Note 4..11
Note 7.11
Note 8..11
Note 9..11
1
APPELLEES MOTION to STRIKE APPELLANTS NEW ARGUMENTS;
SUPPLEMENTAL EXCERPT of RECORD; any REFERENCE to their
SUPPLEMENTAL EXCERPT OF RECORD in their REPLY BRIEF; and
STRIKE THEIR NEW REQUESTED RELIEF in THEIR REPLY BRIEF
Appellees Lisa Liberi [Liberi], Lisa Ostella [Ostella], Go Excel Global
[GEG], Philip J. Berg, Esquire [Berg], and the Law Offices of Philip J. Berg,
collectively Appellees object to the new arguments raised for the first time in
Appellants, Orly Taitz [Taitz] and Defend our Freedoms Foundations, Inc.
[DOFF], collectively Appellants Reply Brief, Docket No. 40-1 filed April 19,
2012 in Case No. 11-56079 and Supplemental Excerpt of Record, Docket No. 40-
2; and Move to Strike Appellants new arguments; Supplemental Excerpt of
Record; any reference to the Supplemental Excerpt of Record in their Reply Brief;
and their new requested relief from this Court.
STATEMENT OF FACTS:
Appellants Taitz and DOFFs Appeal stems from the District Courts Denial
of their Anti-SLAPP Motion. The only issues appealed were the denial of the
Anti-SLAPP and DOFFs Appeal regarding jurisdiction. This Appeal has been
delayed numerous times by the Appellants, which is not the first time they have
used an Appellate Court for such tactics, see Liberi, et al v. Taitz, et al, U.S. Court
of Appeals for the Third Circuit, Case No. 10-3000 which delayed this case for
approximately nine (9) months.
2
Appellants filed their Opening Brief on December 19, 2011; On February 3,
2012, Appellate Commissioner Peter L. Shaw consolidated Appellate Case Liberi,
et al v. Defend our Freedoms Foundations, Inc., Case No. 11-56079 filed by Orly
Taitz on behalf of DOFF; and Liberi, et al v. Orly Taitz, et al, Case No. 11-56164
filed by Jeffrey Cunningham, Esq. on behalf of Orly Taitz, see a true and correct
copy of Commissioner Shaws Order attached hereto and incorporated in by
reference as EXHIBIT A.
Appellees (Plaintiffs) filed their Consolidated Answering Brief on March 19,
2012.
Appellants Supplemental Excerpt of Record; their arguments outlined in
Appellants Reply Brief were not raised in the District Court or in their Appellants
Opening Brief. Moreover, Appellants are now asking for Relief from this Court
that was not requested in their Appellant Opening Brief. New Arguments,
Evidence and Relief, explained below, not raised in the District Court and not
raised in the Appellants Opening Brief are waived, and therefore must be Stricken
and not considered. Jeffrey Cunningham, Esq. and his Client, Orly Taitz, Esq.
must be sanctioned for violating the Courts February 3, 2012 Order; and violating
the Courts Circuit Rules; and Appellees awarded Attorney Fees and Costs.
//
//
//
//
3
ARGUMENT:
I. ARGUMENTS and EVIDENCE PRESENTED for the FIRST
TIME in a REPLY BRIEF are WAIVED and MUST BE
STRICKEN:
Appellants in their Consolidated Reply Brief, Docket No. [DN]40-1 in
case No. 11-56079, raised for the first time supposed statements made during a
Hearing in a Court in Pennsylvania, by Appellees Counsel, which has nothing to
do with this Appeal. In support thereof, Appellants file a Supplemental Excerpt of
Record, see DN 40-2 in Case No. 11-56079 of an August 9, 2009 Court Transcript
from the Eastern District of Pennsylvania. Neither the arguments nor
Supplemental Excerpt of Record were presented to the District Court regarding
Appellants Anti-SLAPP Motion and were not raised in the Appellants
consolidated Opening Brief
1
.
Appellants were not present at the August 9, 2009 Hearing and the
Appellants are stating Plaintiffs made statements that this case is about the Political
movement regarding President Obama. This is farfetched. As quoted out below,
Appellants claim Plaintiffs Lisa Liberi and Lisa Ostella are Birthers and part of

1
Orly Taitz, Esq. Appellant herein and counsel for DOFF has also filed a Consolidated Reply
Brief, but in Case No. 11-56164, DN 35-1, along with three (3) Exhibits, DNs 35-2, 35-3, and
35-4, that are hearsay documents and have absolutely no relevance in these Appeals. Taitz also
posted her filing for DOFF with the confidential documents, one set of which she obtained by
fraudulent means, all over the Internet, through RSS Feeds, Social Networks, Tweeted them, etc.
which will be addressed by Appellees in a separate Motion to Strike her Reply Brief, Exhibits,
for Sanctions, Attorney Fees and Costs.
4
the Political Movement that Appellant Orly Taitz supposedly heads and controls
based on a brief conversation between Appellees Attorney, Philip J. Berg, Esquire
and the Court. This is completely false. Moreover, the statements quoted out
below, and the Supplemental Excerpt of Record [SER] filed by Appellants are
being raised for the first time in their Appellants Consolidated Reply Brief. The
below statements, arguments, request for relief and the SER were not mentioned or
Appellants have raised for the first time in their Reply Brief at Paragraph IV-
A, pages 10-12, the following:
A. Plaintiffs Have Represented to the District Court that this
Case Presents Issues of Great Public Interest, Concerning the
Birther Movement, and Related Rights of Petition and Free
Speech in Furtherance of that Movement
The bulk of Plaintiffs AB is devoted to distancing themselves from
the political dissident movement, including a component known as the
Birther Movement, by those challenging the qualifications of
President Barack Obama. As demonstrated in Defendants briefs,
Taitz is a political dissent leader who, individually and through
DOFF, has been and remains the leader of this movement.
Despite Plaintiffs attempt to portray this case as not about any
political issue (AB, 31), in fact, per Plaintiffs, it is squarely
concerned with control over the Birther Movement. In this regard,
Plaintiffs at an August 2009 hearing before Judge Robreno
represented the following:
THE COURT: Okay. See, what Im trying to understand is other
than this individual infighting, whether there is a difference between
the simple Taitz position, or the defendants position, and the
plaintiffs position on the issue of the Obama presidency? In other
words, whether all this involves a disagreement on a substantive
5
issue, or all of this infighting seems to obscure the basis purpose of
which all of you are involved in.
MR. BERG: Well, it appears, Your Honor, supposedly were on both
the same course.
THE COURT: Right.
MR. BERG: However, and theres been - and, if I can supply them to
the Court later and copies to counsel by letter or memorandum, in the
past few days theres been several articles written, independent of me,
which basically brings out what Ive said for months, that Orly Taitz if
in here really to undermine everything - and her goal was - she set out
months ago to bring me down, which makes no sense, because I have
three pending lawsuits in Federal Court, and it doesnt make sense.
But, now other people are writing it looks like shes really working
either directly for Obama, or people related there, even though shes
supposedly working against it by all of her wild actions.
I call her, and Ive quoted here in the paper, as a loose cannon, but
her actions, Your Honor, are detrimental to this cause, and even
theyve had her on TV in the past few days, and she makes a fool of
herself, because she doesnt really know what shes talking about.
Therefore, I think it makes sense that shes trying to bring us down.
By bringing us down, it would close out the whole effort. So, I think
thats what it is.
THE COURT: Okay, I follow that, okay.
[SER, 60-61; emphasis added.]
Therefore, according to Plaintiffs, this case is really about their
efforts to purge the Birther Movement of Taitz whom they portray as a
type of double-agent or saboteur working either directly for Obama,
or people related there and a detriment to this cause. Per
Plaintiffs, Taitz is seeking to close out the whole effort (i.e., the
Birther Movement).
6
In reality, of course, Taitz is not seeking to destroy the Birther
Movement. She is protecting its integrity and advancing its goals by,
among other things, acting as a whistleblower against Plaintiffs to
resist their efforts to corrupt and usurp control of this political
movement.
Therefore, per Plaintiffs, this case is directly about a political
issue of the greatest importance - the rights of political dissidents
such as Taitz to exercise their free speech rights and petition for
redress of grievances without fear of being sued because of such
activities.
On page 25 of Appellants Consolidated Reply Brief in their Conclusion, VI
for the first time has asked this Court:
Alternatively, if said order is affirmed, Taitz pursuant to Verizon,
Vess and Greensprings respectfully requests that the Court should be
instructed to allow Defendants to bring an anti-SLAPP motion
challenging the FAC.
The above request must also be Stricken. Appellants did not request this
relief in their Opening Brief, therefore they have waived it, and, like above,
Appellees have not had the opportunity to address these new statements. In
support of the above new arguments, Appellants have filed an August 7, 2009
Court transcript that was also not in their Appellants Opening Brief or part of the
record in the lower Court regarding the issues under Appeal.
It is the long holding of this Court that arguments raised for the first time in
a Reply Brief will not be considered. See Koerner v. Grigas, 328 F.3d 1039, 1048
(9th Cir. 2003). Additionally, issues raised for the first time in an Appellants
7
Reply Brief are considered waived. The court routinely refuses to consider them.
See, e.g., Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 n.6 (9th Cir. 2004)
(declining to consider issue raised in reply brief); United States v. Rearden, 349
F.3d 608, 614 n.2 (9th Cir. 2003) (We decline to consider Reardens argument . . .
because it is raised for the first time in reply.); Cedano-Viera v. Ashcroft, 324
F.3d 1062, 1066 n.5 (9th Cir. 2003) ([W]e decline to consider new issues raised
for the first time in a reply brief.): Graves v. Arpaio, 623 F.3d 1043, 1048 (9th
Cir. 2010) (per curiam) (arguments raised for the first time in a reply brief are
waived.); Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990) ("It is well
established in this circuit that the general rule is that appellants cannot raise a new
issue for the first time in their reply briefs.") (quotations and citations omitted);
quoting Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985) ("As a
general rule, we will not consider an issue raised for the first time on appeal.").
The reason for this is fairness. When an issue is raised for the first time in a Reply
Brief, it means that the Appellees have not had an opportunity to respond to that
issue. See Lentini, 370 F.3d at 843 n.6.
The above outlined statements appearing on pages 10-12 of Appellants
Reply; Appellants new requested relief on page 25, VI, 2
nd
paragraph; and
Appellants SER were not raised or presented in their Appellants Opening Brief
and must be stricken.
8
II. ARGUMENTS and EVIDENCE INTRODUCED for the FIRST
TIME in an APPEAL will NOT BE CONSIDERED:
As this Court is aware, an Appeal is a proceeding in which a higher Court
reviews the actions taken by a trial Court, or in this case, the District Court.
Appeals are generally limited to a review of the record from the lower Court.
Parties cannot introduce new evidence and are limited to what was said and
introduced at the original proceeding. Issues, defenses and arguments not raised at
the District Court cannot be raised in the Appeal. This Court reviews the lower
Court's application of the law to the facts as presented. Janes v. Wal-Mart Stores,
Inc., 279 F.3d 883, 887 (9
th
Cir. 2002) (We generally do not consider issues raised
for the first time on Appeal); MacDonald v. Grace Church Seattle, 457 F.3d 1079,
1086 (9th Cir. 2006) (We decline to consider arguments raised for the first time on
appeal.); Smith v. Marsh, 194 F.34d 1045, 1052 (9
th
Cir. 1999) (We do not
consider contentions, facts or arguments raised for the first time on appeal);
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9
th
Cir. 2009) (per curiam) (We do not
consider arguments and allegations raised for the first time on appeal.); United
States v. Elias, 921 F.2d 870, 874 (9
th
Cir. 1990) (We decline to consider evidence
or arguments presented for the first time on appeal.).
In addition to the fact Appellants have raised these issues for the first time in
their Reply Brief, Appellants new arguments appearing in their Reply Brief at
pages 10-12; their new request for relief on page 25, as outlined above; and their
9
Supplemental Excerpt of Record with the August 7, 2009 Court Transcript are
waived because Appellants did not present them to the District Court in their Anti-
SLAPP arguments and are being made for the first time in this Appeal, therefore,
they must be Stricken. See Peterson v. Highland Music, Inc., 140 F.3d. 1313, 1321
(9th Cir. 1998) and Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,
1030 (9th Cir. 2001). See also In re BioLase Tech. Sec. Litig., No. 04-947 DOC
(C.D. Cal. Jan. 27, 2003) n1; and Kirshner v. Uniden Corp. of Am., 842 F.2d 1074,
1077 (9th Cir. 1988).
As stated by Judge McKeown in Ctr. for Bio-Ethical Reform, Inc. v. City &
County of Honolulu, 2006 U.S. App. LEXIS 16837; 455 F.3d 910 (9
th
Cir. July 6,
2006) in her Amended Opinion at fn. 3, "There is good reason why we generally
do not consider issues for the first time on appeal--the record has not been
developed, the district court has not had an opportunity to consider the issue, and
the parties' arguments are not developed against the district court decision. Id.
Accordingly, this Court should Strike the arguments and evidence outlined
hereinabove, that [were] not presented to the district court. Kirschner, supra,
842 F.2d at 1078.
III. SANCTIONS AGAINST JEFFREY CUNNINGHAM, ESQ. AND
HIS CLIENT, ORLY TAITZ, ESQ. ARE WARRANTED
There are several Rules in this Circuit that allow this Court to Sanction an
attorney and award attorney fees and costs to their opponent, for Failure to
10
Comply with Circuit Rule 30-1, if irrelevant materials are included in the Excerpts
of Records or Exhibits filed with a Brief, see this Courts Circuit Rule 30-2
2
. The
Ninth Circuit Local Rule 30-2 allows for Sanctions, Costs and Attorney fees
against an Attorney who vexatiously and unreasonably increases the cost of
litigation by inclusion of unnecessary material in the excerpts of record. As Orly
Taitz, Esquire, Attorney for DOFF and Jeffrey Cunningham, Esquire, Attorney for
Orly Taitz have done to the Appellees herein.
The Ninth Circuit Rule 46-2 (a) outlines sanctionable conduct and conduct
subject to Discipline, This Court may impose discipline on any attorney
practicing before this Court who engages in conduct violating applicable rules of
professional conduct, or who fails to comply with rules or orders of this Court.
The discipline may consist of disbarment, suspension, reprimand, counseling,
education, a monetary penalty, restitution, or any other action that the Court
deems appropriate and just. [emphasis added].
As outlined in the Circuit advisory Committee Note to Rule 46-2, this Court
may sanction an attorney who so multiplies the proceedings in any case
unreasonably or vexatiously, 28 U.S.C. 1927, Circuit Advisory Committee Note
(3); pursuant to Circuit Rule 30-2 this Court may Sanction an Attorney who

2
The Ninth Circuit Court has the inherent power to strike irrelevant material. Circuit Rule 30-1;
See also cf. Carrigan v. Cal. State Legislature, 263 F.2d 560, 564 (9th Cir. 1959) (discussing an
appellate courts inherent power to strike briefs and pleadings as either scandalous, impertinent,
scurrilous, and/or without relevancy)
11
vexatiously and unreasonably increases the cost of litigation by inclusion of
unnecessary material in the excerpts of record.; Under Circuit Rule 30-2, against
counsel who vexatiously and unreasonably increases the cost of litigation by
inclusion of unnecessary material in the excerpts of record., see Circuit Advisory
Committee Note (4); Against counsel for conduct that violates the orders or other
instructions of the Court, or for failure to comply with the Federal Rules of
Appellate Procedure or any Circuit Rule., see Circuit Advisory Committee Note
(7); and Under the inherent powers of the Court. See, e.g., Chambers v. Nasco,
Inc., 501 U.S. 32, 45-50 (1991), see also Circuit Advisory Committee Note (8);
and As a form of discipline under FRAP 46(c) and Circuit Rule 46-2, with notice
of such sanctions provided to the appropriate courts and state disciplinary
agencies when the Court deems such notice to be justified., see Circuit Advisory
Committee Note (9).
28 U.S.C. 1927 allows this Circuit to sanction an attorney who so
multiplies the proceedings in any case unreasonably and vexatiously for those
excess costs, expenses, and attorneys fees reasonably incurred as a result of
attorneys conduct. Recklessness suffices under 1927, but the Court must find
there was bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107-08 (9
th
Cir.
2002). There is no question that Orly Taitz and Jeffrey Cunningham, who are both
seasoned Attorneys licensed to practice law in the State of California, actions
12
were in bad faith and it is supported by their filing on April 19, 2012, which is
clear and convincing evidence. In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9
th
Cir.
2009); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989)
("Bad faith is present when an attorney knowingly or recklessly raises a frivolous
argument or argues a meritorious claim for the purpose of harassing an
opponent." ) Id. (quoting Estate of Blas, 792 F.2d 858, 860 (9th Cir. 1986); B.K.B.
v. Maui Police Dept, 276 F.3d 1091, 1107-08 (9th Cir. 2002) (attorneys
knowing and reckless introduction of inadmissible evidence was tantamount to bad
faith and warranted sanctions under 1927 and the courts inherent power); Fink
v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001) (attorneys reckless
misstatements of fact, combined with an improper purpose, are sanctionable under
the courts inherent power); Chambers v. NASCO, 501 U.S. 32 (1991) (holding
that the excessive sanctioning for attorneys fees and costs for bad-faith conduct
was appropriate).
Jeffrey Cunningham, counsel for Orly Taitz, Esq. violated the Courts
February 3, 2012 Consolidation Order, by assisting Orly Taitz in filing a secondary
Reply Brief on behalf of DOFF, which alone warrants sanctions and an award of
Attorney fees and costs to Appellees, Aloe Vera of America, Inc. v. United States,
376 F.3d 960 (9th Cir. 2004) (Sanctions are appropriate when a party purposely
violates a Court Order) Id. at 966.
13
Jeffrey Cunningham also violated this Courts Circuit Rules by filing
Appellants Reply brief with new arguments and a Supplemental Record not raised
in the District Court regarding their Anti-SLAPP Motion or in their Appellants
Opening Brief, all the time knowing Appellees (Plaintiffs) would not be able to
respond to these new arguments and SER. This conduct also warrants Sanctions
and the award of Attorney fees and costs to Appellees, B.K.B. v. Maui Police
Dept, 276 F.3d 1091, 1107-08 (9th Cir. 2002).
IV. CONCLUSIONS:
For the reasons outlined herein, Appellants Orly Taitz and Defend our
Freedoms Foundations, Inc.s Reply Brief, DN 40-1, Case No. 11-56079, at IV-A
on pages 10-12; VI, page 25, second paragraph; and Appellants Supplemental
Excerpt of Record, DN 40-2 in Case 11-56079, must be Stricken; Jeffrey
Cunningham, Esq. and his Client, Orly Taitz must be sanctioned; and Appellees
awarded Attorney fees and costs.
Respectfully submitted,
Dated: April 23, 2012 /s/ Philip J. Berg
Philip J. Berg, Esquire
Attorney in pro se and for Appellees,
Lisa Liberi, Lisa Ostella, Go Excel
Global and the Law Offices of Philip
J. Berg
14
EXHIBIT A
amt/Pro Mo commish 30Jan 2012
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA LIBERI; et al.,
Plaintiffs - Appellees,
v.
DEFEND OUR FREEDOMS
FOUNDATIONS, INC.,
Defendant - Appellant.
No. 11-56079
D.C. No. 8:11-cv-00485-AG-AJW
Central District of California,
Santa Ana
ORDER
LISA LIBERI; et al.,
Plaintiffs - Appellees,
v.
ORLY TAITZ, AKA Dr. Orly Taitz,
Defendant - Appellant.
No. 11-56164
D.C. No. 8:11-cv-00485-AG-AJW
Central District of California,
Santa Ana
ORDER
Before: Peter L. Shaw, Appellate Commissioner
Court records reflect that defendant Defend Our Freedoms Foundation filed
a notice of appeal and paid filing fees on June 27, 2011 for appeal no. 11-56079.
Defendant Orly Taitz filed a notice of appeal and paid filing fees on July 13, 2011
for appeal no. 11-56164. The Court sua sponte consolidates appeal nos. 11-56079
and 11-56164.
FILED
FEB 03 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Case: 11-56079 02/03/2012 ID: 8056722 DktEntry: 26 Page: 1 of 2 Case: 11-56079 04/23/2012 ID: 8148756 DktEntry: 42-1 Page: 21 of 22
amt/Pro Mo commish 30Jan 2012
Appellees opposed joint motion to strike the opening brief is denied.
Appellees opposed joint motion to dismiss the appeal is denied. Appellees
motion to strike new arguments is denied without prejudice to renewing the
argument in the answering brief. The cross-applications of the parties for attorney
fees are denied without prejudice to renewed applications, if warranted, after the
Courts resolution of these appeals. See 9th Cir. R. 39-1.6.
Appellants motion to strike filings and for sanctions is denied. Court
records reflect that appellees counsel, Philip J. Berg, Esq., has been admitted to
the United States Court of Appeals Ninth Circuit bar effective January 20, 2012.
Appellants motion to grant an appeal by default is denied. See 9th Cir. R.
27-10. Appellants opposed motion for an extension of time to file an opposition
to the motion to dismiss is granted.
The Clerk shall strike appellant Orly Taitzs (Taitz) request for judicial
notice filed on December 20, 2011 in No. 11-56164 because the document filed by
Appellant Taitz contains social security information. See Fed. R. App. P. 25(a)(5);
Fed. R. Civ. P. 5.2(a). Appellant Taitz may file a redacted document along with
another request for judicial notice. Any further motions for judicial notice will be
referred to the merits panel for resolution. See 9th Cir. R. 27-1, Circuit Advisory
Committee Note (7).
The amended briefing schedule is as follows: the consolidated answering
brief is due March 7, 2012; the consolidated optional reply brief is due within 14
days after service of the consolidated answering brief.
Appellees are reminded that if they contend appellants excerpts omit
relevant portions of the record they may file supplemental excerpts of record
pursuant to Ninth Circuit Rule 30-1.7 along with the consolidated answering brief.
Case: 11-56079 02/03/2012 ID: 8056722 DktEntry: 26 Page: 2 of 2 Case: 11-56079 04/23/2012 ID: 8148756 DktEntry: 42-1 Page: 22 of 22

LISA LIBERI, et al,

PlaintiIIs/Appellees,
vs.
ORLY TAITZ, DEFEND OUR
FREEDOMS FOUNDATIONS, INC., et al,
DeIendants/Appellants.
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On Appeal Irom the United States District Court,
Central District oI CaliIornia, Southern Division
Case No. 8:11-cv-00485
Honorable Andrew GuilIord

Philip J. Berg, Esquire (PA Bar No. 09867)

555 Andorra Glen Court, Suite 12
LaIayette Hill, PA 19444-2531
Ph: (610) 825-3134
Fax: (610) 834-7659
Email: philjberggmail.com

1
Liberi, et al Appellees CertiIicate oI Service

I, Philip J. Berg, Esquire, hereby certiIy that a true and correct copy oI
PlaintiIIs/Appellees Motion to Strike Arguments and Supplemental Excerpt oI
Record in Appellant Orly Taitzs Reply BrieI, not raised in Appellants Opening
BrieI; Ior Sanctions; and Attorney Fees and Costs was served this 23
rd
day oI April
2012, upon the Iollowing electronically through the ECF Filing System.
Kim Schumann, Esquire
JeIIrey Cunningham, Esquire

3100 S. Bristol Street, Suite 400
Costa Mesa, CA 92626
Email: kschumannsrrlawIirm.comand jcunninghamsrrlawIirm.com

Orly Taitz, Esquire
29839 Santa Margarita, Suite 100
Rancho Santa Margarita CA 92688
Email: orly.taitzgmail.com and drtaitzyahoo.com

James F. McCabe, Esquire

425 Market Street
San Francisco, CA 94105
Email: jmccabemoIo.com

2
Liberi, et al Appellees CertiIicate oI Service
Marc Steven Colen, Esquire

5737 Kanan Road, Suite 347
Agoura hills, CA 91301
Email: mcolencolenlaw.com, lcolencolenlaw.com

/s/ Philip J. Berg
Philip J. Berg, Esquire

Liberi V Orly Taitz Appellees MTS Portions of Reply SER Sanctions and Atty Fees and Costs Doc 42-1

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Case Numbers: 11-56079 and 11-56164

(Consolidated February 3, 2012)

LISA LIBERI, et al,

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