Doff Reply Brief Doc 35-1

Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 1 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 2 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 3 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 4 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 5 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 6 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 7 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 8 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 9 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 10 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 11 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 12 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 13 of 32
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.]
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 14 of 32
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),
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 15 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 16 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 17 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 18 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 19 of 32
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).)
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 20 of 32
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.]
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 21 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 22 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 23 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 24 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 25 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 26 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 27 of 32
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.
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 28 of 32
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).
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 29 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 30 of 32
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
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 31 of 32
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).
Case: 11-56164
04/19/2012
ID: 8147028
DktEntry: 35-1
Page: 32 of 32
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

Doff Reply Brief Doc 35-1

Uploaded by

Document Information

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

Doff Reply Brief Doc 35-1

Uploaded by

Copyright:

Available Formats

Case: 11-56164

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

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

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

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

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

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

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

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

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

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

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

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

Dated: April _19__, 2012 By:

/s/ Orly Taitz

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

You might also like