Liberi V Taitz Appellees Motion To Strike DOFF's Reply Brief and Exhibits Doc 38-1

Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 1 of 57
Case Numbers: 11-56079 and 11-56164 (Consolidated February 3, 2012) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________ : LISA LIBERI, et al, : : Plaintiffs/Appellees, : : : : vs. : : ORLY TAITZ, DEFEND OUR : FREEDOMS FOUNDATIONS, INC., et al, : : : Defendants/Appellants. : : : 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 APPELLANT DEFEND OUR FREEDOMS FOUNDATIONS, INC. REPLY BRIEF AND EXHIBITS 1, 2 and 3; 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: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 2 of 57
TABLE OF CONTENTS Pages TABLE OF CONTENTS.......i TABLE OF AUTHORITIES.........ii-v STATEMENT OF FACTS.1-5 ARGUMENT...6-15 I. ARGUMENTS and EVIDENCE PRESENTED for the FIRST TIME in a REPLY BRIEF are WAIVED and MUST BE STRICKEN .6-10 ARGUMENTS and EVIDENCE INTRODUCED for the FIRST TIME in an APPEAL will NOT BE CONSIDERED ...................................10-11 SANCTIONS AGAINST ORLY TAITZ, ESQ. ARE WARRANTED..12-15 CONCLUSION...15
II.
III.
IV.
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 3 of 57
TABLE OF AUTHORITIES Cases Page(s)
Aloe Vera of America, Inc. v. United States, 376 F.3d 960 (9th Cir. 2004)...14 B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107-08 (9th Cir. 2002).........14, 15 Barnett, et al v.Obama, et al, U.S.D.C., Central District of CA, Southern Div., Case No. 09-cv-00082 DOC..4 Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985)..9 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001)...11 Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003)...8 cf. Carrigan v. Cal. State Legislature, 263 F.2d 560, 564 (9th Cir. 1959).......12 Chambers v. Nasco, Inc., 501 U.S. 32, 45-50 (1991) ...13, 14 Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 2006 U.S. App. LEXIS 16837; 455 F.3d 910 (9th Cir. July 6, 2006)..11 Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990)...9 Estate of Blas, 792 F.2d 858, 860 (9th Cir. 1986)...14 Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).14 Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)9 In re BioLase Tech. Sec. Litig., No. 04-947 DOC (C.D. Cal. Jan. 27, 2003)...11
ii
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 4 of 57
TABLE OF AUTHORITIES - Continued Cases Page(s)
In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9th Cir. 2009).. ...14 Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9th Cir. 2002).....10 Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).11, 12 Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). 8 Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 n.6 (9th Cir. 2004)...8 Liberi, et al v. Defend our Freedoms Foundations, Inc., U.S. Court of Appeals for the Ninth Circuit, Case No. 11-560791 Liberi, et al v. Orly Taitz, et al, U.S. Court of Appeals for the Ninth Circuit, Case No. 11-56164.1 MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir. 2006)...10 New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989)...14 Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)10 Peterson v. Highland Music, Inc., 140 F.3d. 1313, 1321 (9th Cir. 1998)..11 Rhodes v. MacDonald, 670 F. Supp. 2d 1363 (M.D. Ga 2009)..4
iii
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 5 of 57
TABLE OF AUTHORITIES - Continued Cases Page(s)
Rhodes v. MacDonald, 2010 U.S. App. LEXIS 5340 (11th Cir. Mar. 15, 2010)4 Rivernider v. U.S. Bank, U.S.D.C., Southern District of Florida, Case No. 9:09-cv-81255-WPD..4 Smith v. Marsh, 194 F.34d 1045, 1052 (9th Cir. 1999)10 Taitz v. Michael Astrue, U.S.D.C., District of Columbia, Case No. 11-4024 United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990)..10, 11 United States v. Rearden, 349 F.3d 608, 614 n.2 (9th Cir. 2003)...........8 UNITED STATES CODE Page(s) 28 U.S.C. 192713, 14
FEDERAL RULES OF APPELLATE PROCEDURE Page(s) Fed. R. App. P. 46(c).13
iv
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 6 of 57
TABLE OF AUTHORITIES - Continued NINTH CIRCUIT LOCAL RULES Page(s) Local Rule 30-1...12 Local Rule 30-2.12, 13 Local Rule 46-2...12
NINTH CIRCUIT ADVISORY COMMITTEE NOTES TO RULE 46-2 Page(s) Note 313 Note 413 Note 713 Note 813 Note 9.13
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 7 of 57
APPELLEES MOTION TO STRIKE APPELLANT, DEFEND OUR FREEDOMS FOUNDATIONS, INC. REPLY BRIEF AND ALL EXHIBITS Appellees Lisa Liberi [Liberi], Lisa Ostella [Ostella], Go Excel Global [GEG], Philip J. Berg, Esquire [Berg], and the Law Offices of Philip J. Berg object to Appellant, Defend our Freedoms Foundations, Inc. [DOFF], or [Appellant], Reply Brief and Exhibits in their entirety. Appellees are also asking this Court to Sanction Attorney for DOFF, Orly Taitz, Esquire, and award Appellees Attorney Fees and costs. STATEMENT OF FACTS Appellants Appeal is from the District Courts Denial of their Anti-SLAPP Motion. 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. Appellants filed their Opening Brief on December 19, 2011; On February 3, 2012, Appellate Commissioner Peter L. Shaw consolidated Appellate Cases 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 as EXHIBIT A. Appellees (Plaintiffs) filed their Consolidated Answering Brief on March 19, 2012.
1
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 8 of 57
April 19, 2012, Jeffrey Cunningham, Esq. on behalf of Orly Taitz filed what he called a Consolidated Reply Brief along with a Supplemental Excerpt of Record in Case No. 11-56079, Docket No.s [DNs] 40-1 and 40-2; a few hours later, Orly Taitz, Esq. [Taitz] on behalf of DOFF also filed a Consolidated Reply Brief and three [3] Exhibits in Case No. 11-56164, DNs 35-1, 35-2, 35-3, and 35-4, despite the Courts Order consolidating the Appeals. Orly Taitz has Abused the Courts Process, filing a secondary Consolidated Reply Brief, a thirty-two [32] brief, with arguments not raised in DOFFs Opening Appellate Brief and arguments that have absolutely nothing to do with Taitzs and DOFFs Appeal. Orly Taitz on behalf of DOFF also filed three [3] Exhibits with their Reply Brief that have no relation to DOFF and Taitzs Appeal and one of the Exhibits, DN 35-4, Orly Taitz obtained by fraudulent and deceptive means. On or about February 24, 2011, Orly Taitz as an Attorney and an Officer of the Court contacted the Commonwealth of Pennsylvania Supreme Court and spoke with Marcee Sloan, Hearing Coordinator for the Disciplinary Board of the Pennsylvania Supreme Court. Taitz falsely told Ms. Sloan that she was
representing the United States District Court, Central District of California and Judge Guilford asked her to obtain the documents in the disciplinary proceeding, all of which was completely false. Orly Taitzs Exhibit 3, DN 35-4, ID 8147028
2
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 9 of 57
attached to DOFFs Reply Brief, DN 35-1 are documents that are not public and contain Attorney/Client privilege as well as private identifying information as to Philip J. Berg, Esquires client. See the Declaration of Philip J. Berg, Esquire [Berg Decl.] filed concurrently herewith at page [p. or pp.] 1-2, 2, 3, 5. On April 20, 2012, Orly Taitz posted the documents she filed with this Court April 19, 2012, including her Reply Brief and Exhibits 1 through 3, all over the Internet, sent it out in thousands of RSS feeds; tweeted the information; posted the information on her Social network sites; had other websites post it, etc. Internet addresses Taitz posted these documents include, but are not limited to: http://www.orlytaitzesq.com; http://www.orlytaitzesq.com/?p=40531; http://www.orlytaitzesq.com/?attachment_id=40532; http://www.orlytaitzesq.com/?attachment_id=40533; http://www.orlytaitzesq.com/?attachment_id=40535; http://www.orlytaitzesq.com/?attachment_id=40536; http://www.orlytaitzesq.com/?attachment_id=40545; http://www.orlytaitzesq.com/wp-content/uploads/2012/04/Liberi-v-Doff9th-circuit-filed-final-reply-04.13.2012.pdf; http://www.orlytaitzesq.com/wp-content/uploads/2012/04/Liberi-v-DOFFfiled-reply-by-Orly-Taitz.pdf; http://www.orlytaitzesq.com/wp-content/uploads/2012/04/Berg-Report02.10.2012-Disciplinary-trial.pdf; http://www.orlytaitzesq.com/wp-content/uploads/2012/04/Berg-complaintby-the-disciplinary-board.pdf; http://www.orlytaitzesq.com/wp-content/uploads/2012/04/Berg-answer-tothe-disciplinary-board1.pdf; http://networkedblogs.com/wF6SA; http://www.facebook.com/orlytaitz; http://www.facebook.com/orlytaitz/posts/10150704311850975; http://networkedblogs.com/wFAzn?a=share; http://www.facebook.com/dr.orly.taitz/app_9953271133;
3
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 10 of 57
http://beforeitsnews.com/story/2051/661/Filed_yesterday.html; http://beforeitsnews.com/stories/by/0000000000024233; http://www.orlytaitzesq.com/?p=33986; http://www.orlytaitzesq.com/?attachment_id=33985 Philip-Berg-admitting-to-defrauding-the-Disciplinary-Board-of-theSupreme-Court-of-PA; http://beforeitsnews.com/story/1975/574; and /Fraud_Is_Unraveling._Philip_Berg,_Who_Has_Been_Harassing_Me_For _3_Years_With_A_Bogus_Law_Suit,_Recently_Admitted_To_Defrauding _The_Disciplinary_Board._FBI_Agent_Testified_That_Documents_Submi tted_By_Philip_Berg_and_Lisa_Liberi_Were_Forgeries.html. See Bergs Decl. at pp. 3-4, 8, 9, Exbs. 1 through 5, pp. 9-170. Taitz used the Court as a publishing ground for her Press Release to publish private confidential documents she fraudulently, under false pretenses, obtained from a Court1. Taitz fraudulent, calculated, illegal and damaging actions is why Appellees are suing Taitz. Taitz continues using the Courts, Abusing the Process, as a Press
Taitz, counsel for DOFF, has a history of obtaining documents by fraudulent means and filing manufactured, altered and forged documents as genuine, in our Federal Courts, see Rhodes v. MacDonald, 670 F. Supp. 2d 1363 (M.D. Ga. 2009) (imposing $20,000 sanctions on counsel Orly Taitz for use of the legal process for an improper purpose), affd Rhodes v. MacDonald, 2010 U.S. App. LEXIS 5340 (11th Cir. Mar. 15, 2010); Liberi, et al v. Taitz, et al, U.S.D.C., Central District of California, Southern Division, Case No. 8:11-cv-00485 AJG ($250.00 Sanctions for failing to abide by the Courts June 14, 2011 Order, DN 227); Barnett, et al v. Obama, et al, U.S.D.C., Central District of CA, Southern Div., Case No. 09-cv-00082 DOC (Manufactured/forged Kenya Birth Certificate, Docket No. 55-3 filed Sept. 4, 2009 and Certified copy of Kenya Registration of Birth, Docket No. 34-2 filed August 1, 2009 bearing President Barack Obamas name); Rivernider v. U.S. Bank, U.S.D.C., Southern District of Florida, Case No. 9:09-cv-81255-WPD, see Docket No. 55-1 filed January 26, 2010 (Manufactured, altered and forged website pages; subpoenas and emails filed as genuine by Taitz); and Taitz v. Michael Astrue, U.S.D.C., District of Columbia, Case No. 11-402, Docket No. 39, October 17, 2011, Opinion of Judge Lamberth, page 3, fn 2 and Docket No. 33 filed August 30, 2011 Opinion of Judge Lamberth, pages 7-8, fn 4 (fraudulently obtained Selective Service Record of President Obama and a verification of President Obamas Social Security number obtained in violation of our Federal Laws, through the Social Security E-Verify). Berg Decl., pp. 6-7, 10. 4
1
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 11 of 57
center to publish her false stories, fraudulently obtained documents, forged and altered documents, and to carry out her threats and vendettas against those who do not agree with her, Appellees herein. Taitz actions and behaviors will not stop until the Court takes action against her. Taitz has been an Attorney, licensed in the State of California since 2002, she knows what she is doing, and has been allowed by our Courts, to continue her illegal and damaging behaviors and actions as she is difficult to deal with and the Courts know she will publish the Judges private data, attack the Judges Clerks, accuse the Judges of crimes, etc.2 Appellees have lived these tactics, and until a Court takes action to stop it, like Judge Land in Georgia did, Taitz will continue using this Court and the Courts in this state as a dumping ground and Appellees will continue being further damaged. For these reasons, Appellees request DOFFs Reply Brief and all Exhibits filed therewith, appearing as DNs 35-1; 35-2; 35-3; and 35-4 be stricken; Taitz Sanctioned; and Appellees awarded Attorney Fees and costs.
These are the actions Taitz took against Appellees herein; Taitz obtained all of the Appellees private data, financial records, credit reports, etc.; published the private data and false stories, false allegations, filed law enforcement reports against Appellees based on false allegations; attempted to have the Appellees arrested based on her false allegations; Taitz has and had documents forged in Appellees names and Email Addresses; and many other damaging acts. Appellees have reported the crimes to their local law enforcement agencies, but because the crimes cross so many state lines (New Mexico; New Jersey; Pennsylvania; and California, it is difficult for the State Agencies to prosecute. Each law enforcement agency Appellees have filed reports, knowing Appellees are suing Taitz, continue asking what our Courts are doing to help protect the Appellees and why the Courts have not issued a Restraining Order or Injunction. 5
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 12 of 57
ARGUMENT I. ARGUMENTS AND EVIDENCE PRESENTED FOR THE FIRST TIME IN A REPLY BRIEF ARE WAIVED AND MUST BE STRICKEN
This Court consolidated the two (2) Appeals and ordered Appellees to file a Consolidated Answering Brief and Appellants to file a consolidated Reply Brief. Instead of complying, Taitz and DOFF took it upon themselves to file two (2) separate briefs, totaling close to fourteen thousand words and sixty-four pages. Appellees were not afforded the opportunity to address the new extended arguments raised for the first time in these two (2) Reply Briefs (Case No. 1156079, DN 40-1; and Case No. 11-56164, DN 35-1). Appellees have also filed a Motion to strike new arguments in Orly Taitz brief, DN 40-1 filed in Case 1156079 and their Supplemental Excerpt of Record, DN 40-2, arguments and documents not addressed in their Appellants Opening Brief and not presented to the District court with their Anti-SLAPP Motion. For this reason alone, DOFFs Reply and all three (3) exhibits attached therewith must be stricken. DOFF in their Reply Brief raised the following arguments, for the first time:
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 13 of 57
On pages two through three 3.4 I. Appellant, Defend Our Freedoms Foundations, Inc., Incorporates By Reference Certain Portions of the Related Reply Brief of Appellant, Orly Taitz, in These Consolidated Appeals
On pages four through thirteen a. Plaintiffs - by their silence in their brief - admit that their Count One, for Violation of the First and Fourteenth Amendment [sic] of the United States Constituion [sic], is legally insufficient Plaintiffs Count Two, for Defamation Per Se, Slander and Libel, is legally insufficient Plaintiffs Count Three, for False-Light Invasion of Privacy, is legally insufficient Plaintiffs Count Four, for Harassment, is legally insufficient as well as not being a legally-cognizable claim Plaintiffs Count Five, for False Designations and Descriptions of Facts, is legally insufficient Plaintiffs Count Six, for Injunctive Relief , is legally insufficient and is not a separate claim for relief
b. c. d. e. f.
Appellees/Plaintiffs in this Motion are citing to the title paragraph for each new argument and the page numbers where the argument exists in DOFFs Reply. Appellees are not allotted enough pages to quote every sentence in the new arguments. Attached hereto as EXHIBIT A is a copy of DOFFs Reply Brief with each new argument highlighted in yellow, which must be stricken. Appellees are using the ECF docketing Systems page numbering at the top of each document as Taitz has not properly page numbered DOFFs Reply, e.g. Taitz page numbers go from page 10 to page 2. 7
4
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 14 of 57
Pages twenty-four through thirty-one: APPELLEES COMMITTED EGREGIOUS FRAUD ON THE COURT, WHEN THEY TRIED TO COVER UP LACK OF SUBJECT MATTER JURISDICTION AND LACK OF DIVERSITY AT THE TIME THE COMPLAINT WAS FILED FRAUD ON THE COURT BY THE APPELLEES IS A PART AND PARCEL OF THE SAME MODUS OPERANDI IV. ConclusionLACK OF DIVERSITY AT THE TIME THE COMPLAINT WAS FILED DEMANDS DISMISSAL OF THE CASE WITHOUT LEAVE TO AMEND. Due to the fact that the Plaintiffs/Appellees baldly defrauded the court claiming that they provided Liberi's identification papers and specifically her drivers' license in open court during August 7, 2009 court hearing, when in fact they were ordered by Judge Robereno on August 7, 2009 to file Liberi's identification papers for the purpose of establishing residency and diversity and they never did it , and they are in contempt of the court order for nearly three years now, the Appeal not only needs to be granted and the whole legal action needs to be dismissed, but the Appelllees need to be sanctioned for egregious contempt of court and for egregious fraud on the court. 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 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
8
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 15 of 57
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 and the statements highlighted in EXHIBIT B filed in DOFFs Reply, DN 35-1 and DOFFs Exhibit 1 through 3, DNs 35-2, 35-3, and 35-4, must be stricken and not considered. DOFFs Exhibit 1 through 3, are hearsay documents, completely irrelevant to this Appeal and were not produced to the District Court regarding DOFFs Anti-SLAPP Motion and were not produced in DOFFs Appellant Opening Brief and therefore are waived and must be stricken and not considered. Taitz on behalf of DOFF are simply trying to prejudice this Court against the Appellees as an unfair tactical advantage. Appellees have not had an opportunity to respond to these newly raised arguments or Exhibits, which is extremely prejudicial and must not be allowed.
9
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 16 of 57
DOFFs Reply and Exhibits attached thereto must be stricken; and this Court must Sanction Attorney Orly Taitz; and Award Appellees Attorney fees and costs. 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 (9th 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 (9th 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 (9th 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 (9th Cir. 1990) (We decline to consider evidence or arguments presented for the first time on appeal.).
10
16
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 17 of 57
Appellants new arguments appearing in their Reply Brief outlined above and highlighted in EXHIBIT B, are further waived by DOFF because DOFF did not present them to the District Court regarding their Anti-SLAPP Motion and therefore 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; Fed. R. App. P. 10(a); 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 (9th 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. Accordingly, this Court should Strike DOFFs Reply Brief in its entirety for failing to adhere to the Courts February 3, 2012, and for the reasons outlined above and in EXHIBIT B and Exhibits 1 through 3 attached thereto filed with this Court on April 19, 2012 that [were] not presented to the district court Kirschner, supra, 842 F.2d at 1078.
11
17
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 18 of 57
III.
SANCTIONS AGAINST WARRANTED
ORLY
TAITZ,
ESQ.
ARE
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 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 30-25. 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 has 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
5
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) 12
18
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 19 of 57
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 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 (9th Cir.
13
19
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 20 of 57
2002). There is no question that Orly Taitz, who is a seasoned Attorney licensed to practice law in the State of California, actions were in bad faith and it is supported by her filing on April 19, 2012, which is clear and convincing evidence. In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9th 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). Orly Taitz, Esq. violated the Courts February 3, 2012 Consolidation Order, by 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.
14
20
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 21 of 57
Orly Taitz, Esq. also violated this Courts Circuit Rules by filing Appellants Reply brief with new arguments and Exhibits that have no relation to their Appeals and were 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 Exhibits. 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, Appellant Defend our Freedoms Foundations, Inc.s duplicative Consolidated Reply Brief filed in Case No. 1156164, DN 35-1 and Exhibits 1 through 3, DNs 35-2, 35-3 and 35-4 attached thereto must be stricken in their entirety. Orly Taitz, Esquire must be sanctioned and Appellees awarded Attorney fees and costs. Respectfully submitted,
Dated: April 24, 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
15
21
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 22 of 57
EXHIBIT A
22
Case: 11-56164 04/24/2012 ID: 8151063 DktEntry: 38-1 Case: 11-56079 02/03/2012 ID: 8056722 DktEntry: 26
Page: 23of 257 Page: 1 of
FILED
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
FEB 03 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ORDER
LISA LIBERI; et al., Plaintiffs - Appellees, v. ORLY TAITZ, AKA Dr. Orly Taitz,
No. 11-56164 D.C. No. 8:11-cv-00485-AG-AJW Central District of California, Santa Ana
ORDER Defendant - Appellant.
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.
amt/Pro Mo commish 30Jan 2012
23
Case: 11-56164 04/24/2012 ID: 8151063 DktEntry: 38-1 Case: 11-56079 02/03/2012 ID: 8056722 DktEntry: 26
Page: 24of 257 Page: 2 of
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.
amt/Pro Mo commish 30Jan 2012
24
Case: 11-56164
04/24/2012
ID: 8151063
DktEntry: 38-1
Page: 25 of 57
EXHIBIT B
25
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
DktEntry: 38-1 DktEntry: 35-1
Page: 26of 32 Page: 1 of 57
Case Nos. 11-56079 and 11-56164 (Consolidated on February 3, 2012) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Lisa Liberi, et al., Plaintiffs/Appellees, v.
Orly Taitz, Defend Our Freedoms Foundations, Inc., et al., Defendants/Appellants.
REPLY BRIEF BY APPELLANT, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (Submitted with Appellants Supplemental Excerpts of Record and Reply Brief by Appellant, Orly Taitz, in Consolidated Appeals, Table of contents and table of authorities is in the appellant Orly Taitz brief)
Dr. Orly Taitz, Esq., CSBN 223433 LAW OFFICES OF DR. ORLY TAITZ, ESQ. 29839 Santa Margarita Pkwy Ste. 100 Rancho Santa Margarita, CA 92688 (949) 683-5411 - telephone (949) 766-7603 - fax Counsel for Defendant/Appellant,
Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012 1
26
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
Defend Our Freedoms Foundations, Inc. I. Appellant, Defend Our Freedoms Foundations, Inc., Incorporates By Reference Certain Portions of the Related Reply Brief of Appellant, Orly Taitz, in These Consolidated Appeals The appeals by Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF), and Defendant and Appellant, ORLY TAITZ (Taitz) (collectively Defendants), have been consolidated. Accordingly, for the sake of efficiency and convenience of the Court of Appeals, DOFF incorporates by reference as though fully set forth herein the following sections of Taitzs reply brief: I. Summary of Argument; II. Appeal May Be Taken from the Order Denying Defendants Anti-SLAPP Motion; III. As Determined in the District Courts Order, the Granting of Plaintiffs Motion for Leave to File Their First Amended Complaint is Independent From and Irrelevant to its Denial of Defendants Anti-SLAPP Motion; and IV. The District Court, as a Matter of Law, Erred in Concluding that Defendants Did Not Meet Their Burden Under Section 425.16(b) to Show that
27
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
Plaintiffs Complaint Arises Out of Defendants Acts in Furtherance of Their Rights of Petition or Free Speech in Connection with a Public Issue. II. The District Court, as a Matter of Law, Erred in Concluding that Plaintiffs Met Their Burden Under California Code of Civil Procedure Section 425.16(b)(1) to Demonstrate a Probability of Prevailing as Against Appellants A. As a matter of law, Plaintiffs did not meet their burden under section 425.16(b)(1) to demonstrate the legal sufficiency of their Complaint where they made a judicial admission that the Complaint was legally insufficient 1. Plaintiffs admitted that their Complaint was legally insufficient and, thus, as a matter of law, did not meet their burden under section 425.16(b) Section 425.16(b) (1) requires a Plaintiff to establish that there is a probability that the plaintiff will prevail on the claim. A plaintiffs burden under the second prong of section 425.16(b) is two-fold: "[T]he plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
28
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
evidence submitted by the plaintiff is credited.'" Matson v. Dvorak, 40 Cal.App.4th 539, 548 (1995); emphasis added. Rosenaur v. Scherer, 88 Cal.App.4th 260, 274 (2001). As a matter of law, it is insufficient for a plaintiff to merely argue that it has made an evidentiary showing of merit in opposition to an anti-SLAPP motion. [T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Taus v. Loftus, 40 Cal.4th 683, 713-714 (2007). "Thus, [the non-moving party's] burden as to the second prong of the antiSLAPP test is akin to that of a party opposing a motion for summary judgment." Navellier v. Sletten, 106 Cal.App.4th 763, 768 (2003). Plaintiffs admitted that they did not satisfy this first requirement of their burden: The second prong is whether the Plaintiffs have demonstrated a probability of prevailing on the claim. Plaintiffs agree they must amend their Complaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8; emphasis added.] Plaintiffs in their AB (p. 41) acknowledge they admitted they needed to amend their complaint.... They have, thus, admitted that they did not meet their
29
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
burden under 425.16(b)(1) to demonstrate the legal sufficiency of their Complaint. This judicial admission required, as a matter of law, that the antiSLAPP motion be granted. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. Taus, supra, 40 Cal.4th at 713-714. Plaintiffs argue that where they were granted leave to file their FAC, they were relieved of having to meet their burden under section 425.16(b). (AB, 41-42.) Essentially, per Plaintiffs, whether they met this burden as to their Complaint is irrelevant where the Court allowed the FAC to be filed. Plaintiffs argument might have some validity if the Court pursuant to Verizon and Vess had deemed the anti-SLAPP motion moot. However, that is not what occurred. Although the Court in its tentative ruling was prepared to deem Defendants motion moot, in light of Plaintiffs motion, its final ruling provides the opposite; the Court explicitly applied both prongs of the anti-SLAPP statute to the Complaint to ultimately deny said motion. [1 ER, 4-9 and 25-29.] The Court in its final order [1 ER, 4-9] specifically ruled on the merits of the anti-SLAPP motion, without regard to Plaintiffs motion for leave to file their FAC. Thus, the Court explicitly did not find the anti-SLAPP motion to be premature or moot in any respect, including under Verizon or Vess.
Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012
30
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
Thus, for these reasons, Plaintiffs argument is incorrect. Where the Court specifically addressed and ruled on Plaintiffs burden under section 425.16(b), they were required to satisfy that burden. As shown in Defendants brief herein, and in the Court below, Plaintiffs did not meet their burden. Moreover, as a matter of law (and logic), Plaintiffs could not and did not satisfy their burden where they admitted that their Complaint was legally insufficient. Thus, it was a legal and logical impossibility for Plaintiffs to have sufficiently made a prima facie showing of facts that would, if proved, support a judgment in their favor [1 ER, 8] where their operative pleading (the Complaint) was legally insufficient. 2. Plaintiffs failed to meet their burden to demonstrate that their Complaint and each of its claims were legally sufficient under section 425.16(b) a. Plaintiffs - by their silence in their brief - admit that their Count One, for Violation of the First and Fourteenth Amendment [sic] of
31
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
the United States Constituion [sic], is legally insufficient Plaintiffs' first claim for relief has no legal basis. [2 ER, 311-316.] The Fourteenth Amendment cannot apply to private conduct. Shelley v. Kraemer, 334 U.S. 1, 13 (1948). The First Amendment does not apply to private conduct either. Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982). Where Plaintiffs allege only private conduct, and not required governmental invasion of privacy, their first claim as a matter of law must fail. Plaintiffs first claim is also based on a mish-mash of various California, Pennsylvania and federal statutes. [2 ER, 314-315.] As demonstrated in Defendants OB, none of these laws support Plaintiffs claim. For example, California Civil Code section 1798 et seq. (California's Information Practices Act of 1977) requires government agencies to protect the privacy of personal information maintained by state agencies. There is no discussion or citation to legal authority in Plaintiffs AB regarding their first claim for relief. Thus, they have admitted by their silence that they did not meet their burden under 425.16(b) on this claim.
32
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
b.
Plaintiffs Count Two, for Defamation Per Se, Slander and Libel, is legally insufficient
Plaintiffs common law claims are based on California law, given that the case is pending in California and Defendants are alleged to be, and are, residents and citizens of California. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). Thus, Plaintiffs common law claims for defamation per se, slander and libel are based on California law. [2 ER, 317-320.] Again, Plaintiffs agree they must amend their Complaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8.] Thus, per Plaintiffs, their second claim fails to state a sufficient claim under California law. There is no substantive discussion in Plaintiffs AB of the elements of a defamation per se claim, nor of any evidence submitted by Plaintiffs to support the second prong of their burden to present sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Matson, supra, 40 Cal.App.4th at 548. c. Plaintiffs Count Three, for False-Light Invasion of Privacy, is legally insufficient
33
Case: 11-56164 Case: 11-56164
04/24/2012 04/19/2012
ID: 8151063 ID: 8147028
Plaintiffs third claim is based on California law. [2 ER, 320-323.] Erie Railroad Co., supra, 304 U.S. at 78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the California Laws, their third claim fails to state a sufficient claim under California law. The insufficiency of Plaintiffs third claim is demonstrated in detail in Appellants anti-SLAPP motion and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding. American Title Ins. Co., supra, 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their failure to satisfy their burden under section 425.16(b) to demonstrate the legal sufficiency of their third claim. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. d. Plaintiffs Count Four, for Harassment, is legally insufficient as well as not being a legallycognizable claim Plaintiffs fourth claim is for harassment. [2 ER, 323-326.] There is no legally-cognizable claim for relief for damages entitled harassment. If and to the extent there is such a legally-cognizable claim (limited to injunctive relief), it would be based on California law. California Code of Civil Procedure section
34
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 10 of 32 35 57
527.6. Erie Railroad Co., supra, 304 U.S. at 78. Plaintiffs seek damages on this claim. [2 ER, 324.] Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the California Laws, their fourth claim fails to state a sufficient claim under California law. The insufficiency of Plaintiffs fourth claim is demonstrated in detail in Defendants anti-SLAPP motion and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding. American Title Ins. Co., supra, 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their failure to satisfy their burden under 425.16(b) to demonstrate the legal sufficiency of their fourth claim. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. e. Plaintiffs Count Five, for False Designations and Descriptions of Facts, is legally insufficient Plaintiffs fifth claim is for false designations and descriptions of facts. [2 ER, 326-329.] Plaintiffs cite to 15 U.S.C. 1125 as supporting this claim. [2 ER, 327.] This section is part of the United States Trademark Act. Section 1125(a)(1) refers to: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce
35
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 11 of 32 36 57
any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact.... Plaintiffs fail to allege any facts in this claim that Defendants used in commerce any word.... as required by 1125(a)(1). Moreover, to come within 43(a) of the Lanham Act (15 U.S.C. 1125(a)), covered activities must relate to goods or services which have some effect on interstate or foreign commerce within control of Congress. Parkway Baking Co. v Freihofer Baking Co., 255 F.2d 641 (3rd Circ. 1958). Cashmere & Camel Hair Mfrs. Inst. v Saks Fifth Ave., 284 F.3d 302 (1st Circ. 2002). Plaintiffs in their fifth claim fail to allege this essential element of provision of goods or services in interstate commerce, or any effect on interstate commerce. Congress' purpose in enacting 43(a) of the Lanham Act was to create a special and limited unfair competition remedy exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct. Colligan v Activities Club of New York, Ltd., 442 F.2d 686 (2nd Circ. 1971). Plaintiffs fail to allege any facts establishing the essential element of unfair competition as between them and Defendants, nor that Defendants engaged in any unscrupulous commercial conduct.
36
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 12 of 32 37 57
Thus, Plaintiffs failed to satisfy their burden under 425.16(b) to demonstrate the legal sufficiency of their fifth claim. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. f. Plaintiffs Count Six, for Injunctive Relief , is legally insufficient and is not a separate claim for relief Plaintiffs sixth claim is for injunctive relief. [2 ER, 329-332.] This is not a separate claim for relief; it is merely a type of remedy dependent upon the existence of a separate, supporting claim for relief. City of South Pasadena v. Department of Transportation, 29 Cal.App.4th 1280, 1293 (1994). As discussed herein, and demonstrated in Defendants anti-SLAPP motion and supporting papers, Plaintiffs failed to state any sufficient claim upon which their sixth claim could be based. Further, it appears that Plaintiffs sixth claim is based on California law. Erie Railroad Co., supra, 304 U.S. at 78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the California Laws, their sixth claim fails to state a sufficient claim under California law.
37
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 13 of 32 38 57
The insufficiency of Plaintiffs sixth claim is demonstrated in detail in Defendants anti-SLAPP motion and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding. American Title Ins. Co., supra, 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their failure to satisfy their burden under 425.16(b) to demonstrate the legal sufficiency of their sixth claim. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. B. As a matter of law, Plaintiffs did not meet their burden under section 425.16(b)(1) to demonstrate the legal sufficiency of their Complaint - based on alleged diversity jurisdiction - where they failed to plead facts establishing diversity and to file proof of their state citizenship as required by the District Court Plaintiffs alleged that diversity jurisdiction under 28 U.S.C. 1332(a) existed where Plaintiffs were citizens of Pennsylvania, New Jersey and Oklahoma, and each Defendant was a citizen of other states, including California (for Taitz and DOFF). [1 ER, 255.] Plaintiffs alleged that Liberi is an adult individual with a business address of 555 Andorra Glen Court, Suite 12, Lafayette, PA.... [1ER, 255.]
38
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 14 of 32 39 57
Plaintiffs failed to allege that Liberi was a citizen of Pennsylvania (or any other state), by virtue of residing in Pennsylvania, but merely that she had a business address in Pennsylvania (i.e., the address of Plaintiffs counsel). Under the terms of Liberis probation, she was allowed to reside in only two states - California and New Mexico. [1 ER, 195-204.] Thus, it would have been a violation of her probation for Liberi to have resided in Pennsylvania. Defendants thus challenged Plaintiffs insufficient diversity jurisdiction allegations at the outset of this case, including before Honorable District Court Judge Eduardo C. Robreno. In August 2009, Judge Robreno conducted an evidentiary hearing at which he ordered, and Plaintiffs agreed, that they must file proof of their state citizenship in order to establish diversity jurisdiction. [1 SER, RT 16-19".] Liberi testified under oath that she would file her identifying information. [1 SER, RT 47".] LIBERI HAS VIOLATED JUDGE ROBRENOS ORDER WHERE SHE HAS FAILED TO FILE HER IDENTIFYING INFORMATION NECESSARY TO ESTABLISH DIVERSITY JURISDICTION HEREIN. [1 ER, 167, 169-170.] Accordingly, in their anti-SLAPP motion, Defendants challenged Plaintiffs allegations of diversity jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1),
39
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 15 of 32 40 57
particularly where Liberi could not legally reside in any state other than California or New Mexico. [1 ER, 166-170.] This includes Pennsylvania where Liberi allegedly maintained a business address. [1ER, 255.] The District Court denied the anti-SLAPP motion, including on lack of diversity jurisdiction grounds. [1 ER, 4-9.] Plaintiffs now assert that Liberi is domiciled in New Mexico, and that she provided Judge Robreno with her New Mexico Drivers License, Social Security cards, and birth certificate. They contend that Judge Robreno found, just like the District Court in this Appeal, that jurisdiction was diversified. (AB, 14.) Plaintiffs miss the point. Diversity is determined at the time the action is filed. Thus, a change of a partys citizenship after commencement of the action does not affect issues regarding diversity jurisdiction. Lewis v. Lewis, 358 F.2d 495, 502 (9th Cir. 1966). A change in citizenship after an action is commenced does not cure a defect in complete diversity existing when the action is filed. Saadeh v. Farouki, 107 F.3d 52, 56-57 (DC Cir. 1997). "The essential elements of diversity jurisdiction, including the diverse residence of all parties, must be affirmatively alleged in the pleadings." In re Mexico City Aircrash, 708 F.2d 400, 404 n.4 (9th Cir. 1983). It is thus a Plaintiffs burden to affirmatively plead diversity jurisdiction. Ibid.
40
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 16 of 32 41 57
Plaintiffs failed to allege sufficient facts in their Complaint affirmatively establishing diversity jurisdiction at the time it was filed (May 2009), including with regard to Liberis citizenship. Plaintiffs did not plead that Liberi was a resident of New Mexico or any other state. As a matter of law, allegations that Liberi maintained a business address in Pennsylvania (at Plaintiffs counsels offices) was insufficient. [1ER, 255.] The Complaint is silent as to the crucial fact of Liberis residence in May 2009, necessary to establish diversity jurisdiction. In re Mexico City Aircrash, supra, 708 F.2d at 404 n.4. Plaintiffs attempt to make a distinction between a persons residence and his or her domicile. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). This distinction is irrelevant herein where they failed to allege any Plaintiffs domicile in the Complaint. With regard to Liberi, there is merely an improper allegation, failing to establish diversity jurisdiction based on domicile or any other basis, about her business address in Pennsylvania. [1 ER, 255.] Relatedly, Plaintiffs argument that Liberi presently resides in New Mexico is irrelevant. Plaintiffs were required to affirmatively establish diversity jurisdiction in their Complaint. The Complaint is silent as to Liberis state of residence. That diversity jurisdiction might now exist does not mean that it existed
41
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 17 of 32 42 57
when the Complaint was filed in May 2009. The Court did not retroactively acquire diversity jurisdiction by virtue of Liberi later residing in New Mexico. Lewis, supra, 358 F.2d at 502. Saadeh, supra, 107 F.3d at 56-57. Moreover, Plaintiffs failed to submit any proof that Liberi provided Judge Robreno with any documents establishing residence in New Mexico. In this regard, Defendants are providing the reporters transcript of the August 2009 hearing before Judge Robreno. [1 SER, 3-103.] There is no indication that Plaintiffs provided any proof of Liberis residence. Also, there is no ruling or even comments by Judge Robreno as to diversity jurisdiction being established. As demonstrated, Plaintiffs failed to meet their burden that diversity jurisdiction existed, particularly as to Liberi. Plaintiffs thus failed to meet their burden under section 425.16(e) to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Taus, supra, 40 Cal.4th at 713-714. C. Plaintiffs did not meet their burden under section 425.16(b) to present competent and admissible evidence sufficient to sustain a judgment in their favor on the Complaint
42
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 18 of 32 43 57
A plaintiffs burden under section 425.16(b) includes to make a prima facie showing via competent and admissible evidence of facts sufficient to sustain a favorable judgment. Matson, supra, 40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. As demonstrated in Defendants brief, Plaintiffs did not satisfy that burden where they failed to submit competent or admissible evidence supporting their opposition. There is no discussion in Plaintiffs AB as to the sufficiency of the evidence (Liberis and Bergs declarations) in opposition to Defendants motion. Thus, Plaintiffs by their silence tacitly admit that their evidence was insufficient to meet their burden under section 425.16(b). Meehan, supra, 856 F.2d at 106 n.1. Collins, supra, 841 F.2d at 339. III. Contrary to Plaintiffs Unsupported Contentions, Defendants Opening Briefs Are Not Based on New Arguments, New Statements, and New Defenses, Nor Do the Opening Briefs Contain Improper Citations to the Record Plaintiffs devote nine pages of their AB (pgs. 21-29) to the specious argument that Defendants opening briefs are based on new defenses and arguments as well as that Defendants citations to the record on appeal are
43
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 19 of 32 44 57
improper citations... [that] do not state or reflect the statements claimed by Taitz and DOFF. (AB, 21 and 26.) Plaintiffs made this same argument in their unsuccessful motion to strike Defendants opening briefs and dismiss the appeals. Plaintiffs argument should (again) be rejected. Plaintiffs fail to identify any purported new defenses and arguments. Thus, it is difficult (and sometimes impossible) for Taitz to address Plaintiffs contentions where they fail to identify the purported new arguments. DOFF will attempt to address Plaintiffs contentions in the order they appear to be raised in the AB. Plaintiffs first alleged new defenses and argument involves: In Taitz and DOFFs Motion before the District Court which is the subject of this Appeal, DOFF claimed Plaintiffs/Appellees (sic) lawsuit was filed to limit public participation and specifically to silence the defendants, who are whistle blowers... However, DOFF never stated what the public participation was or what it was claiming the public participation was or what they were blowing the supposed whistle on. (AB, 21.) To the contrary, Defendants anti-SLAPP Motion clearly identified their acts in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.... (Section 425.16(b)(1).)
44
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 20 of 32 45 57
As explained in Defendants motion and reply papers, Taitz occupies a leadership position in the anti-government political movement including a component of it known as the Birther Movement. DOFF is Taitzs foundation through which donations are obtained to fund their political activities, focusing on litigation nationwide including to challenge the eligibility of President Obama. Berg is also prominent figure in this political movement. For example, Defendants in the Court below argued that Plaintiffs case was filed to limit public participation and specifically silence the defendants, who are whistle blowers, about the fact that Pennsylvania attorney Philip J. Berg is employing as his legal assistant a convicted document forger and thief Lisa Liberi. [1 ER, 159: 18-22.] Defendants pointed out that Plaintiffs claimed that Plaintiff Ostella was defamed, when Taitz published on her website, that her former web master Ostella locked Taitz out of the old web site for her foundation, Defend Our Freedoms Foundation and replaced Taitzs pay-pal account with her own. [1 ER, 160: 912.] Plaintiffs scheme, to silence Defendants whistle-blowing activities and related speech, caused any donation given to Ostella or via pay-pal on the old web site... would not go to the Foundation, but would go to Ostella. [1 ER, 161: 7-10.]
45
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 21 of 32 46 57
Relatedly, Ostella used Defend Our Freedoms Foundation web site to defame Taitz and promote another attorney, Philip J. Berg. Berg is engaged in nationwide fundraising... As members of the public were donating to Berg, they had to be warned that a person with theft convictions is working as an assistant for that attorney. [1 ER, 162: 24-27, and 163: 7-10.] This involved an important issue of public interest, and an effort, by Taitz, who is the president [of DOFF] and an officer of the court to protect the donors against possible theft. [1 ER, 163: 1316.] Defendants explained how Plaintiffs attempts to usurp Taitzs leadership position in this political movement - principally by siphoning-off donations to fund political activities - implicated important public issues including but not limited to leadership and control of the Birther Movement. [1 ER, 93: 23-28 and 94: 1-11, which includes a discussion of Bergs Birther website www.obamacrimes.com.] Thus, contrary to Plaintiffs unsupported and false argument, Defendants in the Court below explicitly stated what the public participation was... [and] what they were blowing the supposed whistle on. Plaintiffs second alleged new defenses, stories and argument concerns Defendants argument that This case arises out of an ongoing dispute involving
46
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 22 of 32 47 57
the political dissident movement... known as the Birther Movement by those challenging the qualifications of Barack Obama to hold the office of the President.... (AB, 21-23.) Without question, Defendants raised these issues in the Court below. One example is in their reply memorandum stating: Taitz individually and through her foundation [DOFF] is a political crusader. Of particular relevance to the instant action was Taitzs crusade to uncover the truth regarding the birthplace of President Barack Obama. (Declaration of Orly Taitz in support of her Reply to Opposition to Motion to Dismiss... 2.) Taitz and Berg crusade for the same cause. (Taitz Decl. 3.) At one point they simultaneously maintained two similar websites dedicated to their cause. Taitz maintained her blog on www.defendourfreedoms.us and Berg maintained a website at the web address http://obamacrimes.com. (Taitz Decl. 3.) Both Taitz and Berg solicited donations to their respective causes through their blog and web site, respectively. (Taitz Decl. 4; Exhibit 3.) Both Taitz and Berg were accusing Obama of having committed fraud and forged documents regarding Obamas birthplace. (Taitz Decl. 2-5.) [1 ER, 95: 11-21.] Third, Plaintiffs argue that there is nothing relating to, referring to, or even mentioning a Birther Movement or Birther located in the Record. (AB, 24.) To the contrary, the motion and reply papers are replete with such references including, but not limited to, the very explicit references to Taitzs crusade to uncover the truth regarding the birthplace of President Barack Obama and Taitzs and Bergs efforts in that movement.
47
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 23 of 32 48 57
Thus, Defendants in the District Court forcefully demonstrated that this case arises out of the Birther Movement. Plaintiffs arguments regarding new defenses and arguments are patently without merit (as well as a blatant misrepresentations of Defendants arguments in the Court below). Plaintiffs then argue that Defendants citations to the record do not state or reflect the statements claimed by Taitz and DOFF. (AB, 26.) Plaintiffs raise two purported instances of inaccurate citations to the record. First, they take issue with Defendants citation to Judge Robrenos undisputed conclusion that: Some of these parties have a long and complicated litigation history. See e.g., Berg v. Obama, 586 F.3d 234 (3d Cir. 2009)... This litigation appears to be part of this overall dispute among the parties. [1 ER, 238, fn. 1.] Plaintiffs do not dispute that Judge Robreno is accurately quoted, but instead complain that Defendants did not argue in the Court below that this case arises out of the Birther Movement. (AB, 27.) As demonstrated above, Defendants explicitly demonstrated in the motion and reply papers that the case, in fact, does concern leadership of and control over such movement. [1 ER, 93-95, and 159163.] Second, Plaintiffs complain that Defendants argue that Berg in the course of the Birther Movement has filed a case challenging President Obamas
48
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 24 of 32 49 57
qualifications, but cite to a portion of the record that says nothing about a political dissident movement.... (AB, 27. ) The subject portion of the record is 1 ER, 297. This portion of Plaintiffs Complaint states in relevant part: On August 21, 2008 Berg filed the first lawsuit against Barry Soetoro a/k/a Barack H. Obama... Berg was the first attorney who field (sic) suit against Barry Soetoro a/k/a Barack Hussein Obama regarding his citizenship issues. Therefore, the subject portion of the record without question concerns the Birther Movement and Bergs claim to carry the mantle of such movement. Plaintiffs arguments to the contrary are simply misrepresentations of the record on appeal. APPELLEES COMMITTED EGREGIOUS FRAUD ON THE COURT, WHEN THEY TRIED TO COVER UP LACK OF SUBJECT MATTER JURISDICTION AND LACK OF DIVERSITY AT THE TIME THE COMPLAINT WAS FILED Appellants have shown that the Appellees cannot prevail on the merits as a matter of law, as they never satisfied the diversity of jurisdiction. They never provided any competent admissible evidence of Liberi's state citizenship. In their Appellees' brief, Appellees provided only one argument: Egregious fraud.
13
49
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 25 of 32 50 57
They claimed that during August 7, 2009 hearing before judge Robreno in open court they provided Judge Robreno with Liberi's identification papers showing her residency: her birth certificate, her Social Security card and her New Mexico drivers license. The record shows this to be a bold lie. First, Social Security card and birth certificate, even if submitted, do not provide proof of residency at the time the case is filed. Those documents attest only to residency at the time of birth and at the time the Social Security card was issued. The only document that can attest to state residency at the time the legal action was filed, is the Drivers License. Excerpt of record "Transcript of the August 7, 2009 hearing before Judge Robreno 1 SER of Appellant Orly Taitz, 3-103 clearly states that Liberi did not provide any identification papers to Judge Robreno. Berg on Liberi's behalf asked Judge Robreno to allow Liberi to provide her drivers' license under seal at a later time. Judge Robreno agreed and ordered Liberi and Berg as her attorney to file with the court Liberi's identification papers to show her residency. Liberi and Berg never did it. There is no evidence anywhere in the record of them ever filing Liberi's drivers license or any other identification records. Liberi and Berg were in contempt of court for three years now and so far federal judges are doing nothing about it and are encouraging this contempt of court by refusing to take action and allowing a case with no jurisdiction to linger in federal court system for three
50
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 26 of 32 51 57
years. Taitz is greatly concerned that this is done because she is a political dissident leader and for a number of years now federal court system was used as a tool of harassment of political dissidents with bogus law suits. Lack of any admissible competent evidence of residency of a party in a diversity law suit destroys diversity. This deficiency cannot be cured by any amended complaint. Any change of residency subsequent to filing of the case is irrelevant to the subject matter jurisdiction at the time of filing. as such the court has no other alternative but to grant the Appeal and dismiss this whole legal action due to lack of subject matter jurisdiction in the federal courts system. FRAUD ON THE COURT BY THE APPELLEES IS A PART AND PARCEL OF THE SAME MODUS OPERANDI As provided in the AntiSLAPP Liberi is a convicted forger and thief, who was charged with 23 felony counts and convicted of 10 felony counts in 2008 in the Superior Court of California, San Bernardino county (FWV-028000. ) At the time of the filing of the legal action at hand she was on probation under the jurisdiction of the Superior Court of California and the San Bernardino County, California probation department. It is reasonable to believe that she indeed used California drivers license, wanted to hide the fact that she lied about her resdency, and that might be the reason, why she made up outrageous defamatory statements claiming
51
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 27 of 32 52 57
that she cannot show her drivers' license in court because she is afraid for her life and accusing Orly Taitz, who is a licensed doctor and a licensed attorney and a president of DOFF of attempting to hire a hit man to kill her and to kidnap children of Ostella. All of these outrageous slanderous statements were entered into record by her coplaintiff and attorney Berg, as he and Liberi filed thousands of pages of the most outrageous defamatory accusations against Taitz, but never filed with the court one small page-a copy of Liberi's drivers license from May 2, 2009. It appears that Berg and Liberi's desire to get donations and recognition in the movement by colluding with web master Ostella and taking over the DOFF web site and diverting donations from DOFF might have been only part of their motivation. Appellants are providing the report by a licensed investigator of February 10, 2012 trial of attorney Philip Berg by the Disciplinary Board of the Supreme Court of Pennsylvania. (official transcript of the hearing has not been released by the Disciplinary Board yet). In 2009, when Taitz blew the whistle on Liberi, Berg and other Appellees, Disciplinary Board of the Supreme Court of Pennsylvania served Berg with a formal complaint, where he was charged with defrauding his client for 2 years, claiming that her case was active, while in reality the case was dismissed.
52
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 28 of 32 53 57
Berg used convicted forger Liberi to prepare a chain of e-mails supposedly between her and the client, where Liberi supposedly advised the client that her claim was dismissed. Both Liberi and Berg submitted to the Disciplinary Board of Pennsylvania sworn affidavits, where they de facto accused Bergs client of lying, of fraud on the court (on disciplinary commission) and of perjury. At the recent February 10, 2012 hearing Berg admitted that he defrauded the Disciplinary Board, that indeed he defrauded the client and that he supposedly lost files and the chain of e-mails between the client and Liberi was not an actual chain of e-mails, but it was recreated. Investigator for the Disciplinary Board, a former FBI agent testified that the "recreation" was a forgery. The decision by the Disciplinary board is expected shortly, but considering the gravity of the offense by Berg in that he used a convicted forger on probation to recreate bogus documents and nearly sent his client, an innocent woman to prison for fraud on the court and perjury, leads public to believe that the disciplinary punishment for Berg will be stiff: either disbarment or lengthy suspension from practicing law. (Exhibit 1 Report of the February 10, 2012 trial of attorney Philip J. Berg by the Disciplinary Board of the Supreme Court of Pennsylvania, Exhibit 2- Complaint exhibit 3 Answer by Berg).
53
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 29 of 32 54 57
During this disciplinary case Taitz, a licensed CA attorney and a president of a nonprofit organization Defend our Freedoms blew the whistle on Liberi and Berg. One of the main reasons for Appellees to file their SLAPP action, was to try to silence Taitz and try to keep the information about Liberi's forgery convictions hidden from the Disciplinary Board, so Berg can use Liberi as his alibi in his bid to preserve his law license. thanks to Taitz's disclosure to the public of the fact that Berg works with a convicted forger, made it possible for the Disciplinary board to follow up on this information. this shows how important were disclosures by Taitz, it shows that the disclosures made by Taitz, were indeed the matter of public interest, it shows that it helped an innocent woman, Berg's client not to be
convicted based on fraudulent affidavits by Berg and Liberi. It prompted admission by Berg that indeed he defrauded the disciplinary Board. If there was ever a case, for which AntSlapp was created, that is the case.
It appears to be a modus operandi of a totally diabolical antisocial behavior of the Appellees and particularly Liberi to simply made up the most outrageous lies and allegations to cover up for the crimes she is committing. Just as Liberi and Berg accused Berg's client, an innocent woman of fraud when she blew the whistle on
18
54
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 30 of 32 55 57
them, they made up outrageous lies and defamatory statements about attorney Taitz, who blew the whistle on them as well. Liberi's criminal record of forgery and recent admissions by Berg to the Disciplinary board show that none of the "evidence" submitted by the Appellees can be relied upon, as there is a very high probability that most of the evidence submitted and referred to is indeed forgery and may of the affidavits by Appellees contain fraudulent statements.
IV. Conclusion For the reasons stated herein and in Defendants opening briefs, the District Court, as a matter of law, erred in denying their anti-SLAPP motion to strike under California Code of Civil Procedure section 425.16. For the reasons stated herein, DOFF respectfully submits that the order denying that motion should be reversed and an order granting said motion be entered. Due to the fact that the Plaintiffs/Appellees never established Liberi's state residency with any admissible competent evidence, the complaint cannot be cured by any amendment. LACK OF DIVERSITY AT THE TIME THE
55
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 31 of 32 56 57
COMPLAINT WAS FILED DEMANDS DISMISSAL OF THE CASE WITHOUT LEAVE TO AMEND. Due to the fact that the Plaintiffs/Appellees baldly defrauded the court claiming that they provided Liberi's identification papers and specifically her drivers' license in open court during August 7, 2009 court hearing, when in fact they were ordered by Judge Robereno on August 7, 2009 to file Liberi's identification papers for the purpose of establishing residency and diversity and they never did it, and they are in contempt of the court order for nearly three years now, the Appeal not only needs to be granted and the whole legal action needs to be dismissed, but the Appelllees need to be sanctioned for egregious contempt of court and for egregious fraud on the court.
Dated: April _19__, 2012 By:
/s/ Dr. Orly Taitz, ESQ _____________________________ Dr. Orly Taitz, Esq. Counsel for Defendant and Appellant, Defend Our Freedoms Foundations, Inc.
CERTIFICATE OF COMPLIANCE This brief contains 6,127 words, excluding the parts of the brief exempted by Fed. R. App. P. Rule 32(a)(7)(B)(iii).
56
Case: 11-56164
04/24/2012 04/19/2012
ID: 8147028 8151063
DktEntry: 35-1 38-1
Page: 32 of 32 57 57
This brief complies with the typeface requirements of Fed. R. App. P. Rule 32(a)(5) and the type style requirements of Fed. R. App. P. Rule 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect in Times New Roman font size 14.
CERTIFICATE OF SERVICE I, Orly Taitz, attest that I served all parties in the case with the above Reply to Appellee's brief on April 19, 2012 via ECF
/s/ Orly Taitz
21
57

Liberi V Taitz Appellees Motion To Strike DOFF's Reply Brief and Exhibits Doc 38-1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Liberi V Taitz Appellees Motion To Strike DOFF's Reply Brief and Exhibits Doc 38-1

Uploaded by

Copyright:

Available Formats

Case: 11-56164

TABLE OF AUTHORITIES Cases Page(s)

TABLE OF AUTHORITIES - Continued Cases Page(s)

TABLE OF AUTHORITIES - Continued Cases Page(s)

FEDERAL RULES OF APPELLATE PROCEDURE Page(s) Fed. R. App. P. 46(c).13

Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

SANCTIONS AGAINST WARRANTED

Dated: April 24, 2012

Page: 23of 257 Page: 1 of

ORDER Defendant - Appellant.

Page: 24of 257 Page: 2 of

amt/Pro Mo commish 30Jan 2012

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 26of 32 Page: 1 of 57

Lisa Liberi, et al., Plaintiffs/Appellees, v.

Orly Taitz, Defend Our Freedoms Foundations, Inc., et al., Defendants/Appellants.

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 27of 32 Page: 2 of 57

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 28of 32 Page: 3 of 57

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 29of 32 Page: 4 of 57

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 30of 32 Page: 5 of 57

Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 31of 32 Page: 6 of 57

Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 32of 32 Page: 7 of 57

Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 33of 32 Page: 8 of 57

Case: 11-56164 Case: 11-56164

ID: 8151063 ID: 8147028

DktEntry: 38-1 DktEntry: 35-1

Page: 34of 32 Page: 9 of 57

ID: 8147028 8151063

DktEntry: 35-1 38-1

ID: 8147028 8151063

DktEntry: 35-1 38-1

Liberi v DOFF Reply to Appellees' brief 9th circuit 04.19.2012 9

ID: 8147028 8151063

DktEntry: 35-1 38-1

ID: 8147028 8151063

DktEntry: 35-1 38-1

ID: 8147028 8151063