Case 8:11-cv-00485-AG -AJW Document 311 #:7176

Filed 07/25/11 Page 1 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Philip J. Berg, Esquire Pennsylvania I.D. 9867

555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 E-mail: [email protected]

Attorney in pro se and for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : : Plaintiffs, : : : : : : : : : : Defendants. : : : : : : :

LISA LIBERI, et al,

CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT, ORLY TAITZS MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) and 12(b)(6) Date of Hearing: August 15, 2011 Time of Hearing: 10:00 a.m. Location: Courtroom 10D

vs. ORLY TAITZ, et al,

COMES NOW Plaintiffs, Philip J. Berg, Esquire [hereinafter at times Berg]; Lisa Ostella [hereinafter at times Ostella]; Lisa Liberi [hereinafter at times Liberi]; Go Excel Global and Law Offices of Philip J. Berg by and through their undersigned counsel, Philip J. Berg, Esquire and files the within Response in Opposition: Memorandum of Points and Authorities; and Declarations of Dr.

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7177

Filed 07/25/11 Page 2 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Charles Edward Lincoln, III; and Plaintiffs Lisa Liberi and Lisa Ostella in Opposition to Defendant, Orly Taitz [Taitz] Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In support hereof, Plaintiffs aver the following: 1. It is Plaintiffs position that this Court lacks jurisdiction to entertain

Taitzs Motion to Dismiss Cause of Actions 1 through 4 and 8 through 9as these are the same as the Cause of Actions in Plaintiffs original Complaint filed May 4, 2009. Taitz, after filing her Motion to Dismiss, filed an Appeal of this Courts June 14, 2011 Order, which was the Courts Anti-SLAPP ruling on Orly Taitzs Motion. These are the Causes of Actions Taitzs Appeal of her AntiSLAPP Motion pertain to. 2. Defendant Orly Taitz through her attorney, Peter Cook, Esquire,

should have filed to vacate their Motion to Dismiss pertaining to the Causes of Actions which are the same as in Plaintiffs original complaint, that Taitz filed an Anti-SLAPP to Dismiss that is now under Appeal. 3. As this Court is aware, an Appeal divests this Court of jurisdiction on

the issues under Appeal. Thus, this Court lacks jurisdiction to entertain Taitzs Motion to Dismiss Plaintiffs First Amended Complaint as to Cause of Actions 1 through 4 and 8 through 9. For this reason, Plaintiffs have not addressed these particular causes.

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7178

Filed 07/25/11 Page 3 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4.

It is also Plaintiffs position that Taitzs Motion to Dismiss as to cause

of action numbers 5 through 7 are also Stayed. Although Plaintiffs did not plead separate causes for these issues, they were referenced and plead with Plaintiffs Invasion of Privacy claims in their original complaint filed May 4, 2009. Plaintiffs have touched upon these causes, outlined in Taitzs Motion to Dismiss. 5. If the Court determines it has jurisdiction to entertain Causes of

Action 1 through 4, 8 and 9 then Plaintiffs respectfully request this Court to allow them to Brief Taitzs Motion to Dismiss as to these causes of action, as Plaintiffs First Amended Complaint properly pleads claims of actions for these cause of actions. 6. Jason Q. Marasigan, Counsel for Orly Taitz at the time sought Leave

of Court to File an Anti-SLAPP Motion and Motion to Dismiss. This Court Denied the filing of another Anti-SLAPP Motion as all issues had been adjudicated; and Granted Defendant Orly Taitzs Leave to file a Motion to Dismiss pursuant to Fed. R. Civ. P. 12. 7. Taitz through her new attorney, Peter Cook, Esquire, filed Taitzs

Motion to Dismiss on July 11, 2011. Much of the argument in Taitzs Motion to Dismiss stems around the Anti-SLAPP statutes, which this Court clearly Denied Defendant Orly Taitz to file. Moreover, much of the argument in Taitzs Motion to Dismiss is based on Taitzs assertions that her actions were of public importance

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7179

Filed 07/25/11 Page 4 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and Plaintiffs are public individuals, thus she claims her speech is and was freedom of speech protected by this States Constitution and the United States Constitution; Taitzs argument fails. Plaintiffs Liberi and Ostella are not public individuals nor are their lives and private information of any public importance. The law is that there must be a public interest in the specific speech or conduct alleged in the complaint: The fact that a broad and amorphous public interest can be connected to a specific dispute is not sufficient to meet the statutory requirements of the Anti-SLAPP statute. See World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., (2009) 172 Cal.App.4th 1561, 1570 [92 Cal. Rptr. 3d 227]; See also Episcopal Church Cases, (2009) 45 Cal.4th 467, 477 [87 Cal. Rptr. 3d 275, 198 P.3d 66]. 8. Taitz also claims that her speech regarding the Plaintiffs was free

speech and therefore, protected under the laws of this State, this States Constitution and the U.S. Constitution. Abusing the free speech protections are not tolerated, nor are they protected. Taitzs statements were not free speech but instead were false personal attacks on Plaintiffs; a violation of Plaintiffs privacy rights; and constitute Cyber-stalking, Cyber-harassment and Cyber-bullying; Slander, Internet smearing, Libel, Defamation; Harassment and other violations, which is continuing. Taitzs is still posting her falsities about the Plaintiffs as recent as July 23, 2011. See Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725,

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7180

Filed 07/25/11 Page 5 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

96 L. Ed. 919 (1952), (the Court held that libelous speech is not protected by the U.S. Constitution). Plaintiffs herein are not public figures, however, even if they were, there is absolutely no question that Taitzs false allegations were done with malice and therefore, are not protected under the First Amendment of the U.S. Constitution or Californias Anti-SLAPP statute. See New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See also Dunn & Bradstreet, Inc. v. Greenmoss Builders, (1985) 472 U.S. 749, 762 (plur. opn. of Powell, J.) [stating that when speech "concerns no public issue" and is "wholly false and clearly damaging," it "warrants no special protection" under the First Amendment]. It is settled in California that not all speech or petition activity is constitutionally protected. See Flatley v. Mauro, (2006) 39 Cal.4th 299, 313; Aguilar v. Avis Rent A Car System, Inc., supra, (1999) 21 Cal.4th 121 [87 Cal.Rptr.2d 132; 980 P.2d 846] [87 Cal. Rptr.2d 132; 980 P.2d 864 at p. 134 [the right to free speech is not absolute]. Our California Courts have stated, Allowing sanctions is consistent with the text of the state constitutional provision, which makes anyone who "abuse[s]" the right of freedom of speech "responsible" for the misconduct. (Cal.Const., art. I, 2, subd. (a); See Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 746. 9. The rest of Taitzs Motion to Dismiss appears to be based on

Defendants seeking Plaintiffs to re-plead their entire case in their Opposition to

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7181

Filed 07/25/11 Page 6 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Taitzs Motion, which is impossible. The statements and arguments force the appearance that neither Taitz nor her counsel took the time to read Plaintiffs First Amended Complaint. 10. Also on June 11, 2011, Taitz filed a Motion to Dismiss on behalf of

Defendant Defend our Freedoms Foundations, Inc. [DOFF]. In so doing, Taitz admitted to all the allegations plead in Plaintiffs First Amended Complaint, including the allegations against all Defendants. Taitz Motion to Dismiss on behalf of DOFF contradicts and discredits the statements plead by Mr. Cook on her behalf. 11. Plaintiffs Opposition is based upon their Opposition; the attached

Memorandum of Points and Authorities in Support hereof; Declarations of Dr. Charles Edward Lincoln, Plaintiffs Lisa Liberi and Lisa Ostella; upon records on file with this Court and such further oral and/or documentary evidence that may be presented at the time of the Hearing.

WHEREFORE, for the reasons stated herein, in Plaintiffs Memorandum of Points and Authorities filed herewith and Plaintiffs Declarations, Defendant Orly Taitzs Motion to Dismiss must be Denied. In addition, Plaintiffs Request this Court to Grant them Attorney Fees and Costs for Defendant Orly Taitzs frivolous and meritless Motion. If the Court decides it has jurisdiction to entertain

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011

Case 8:11-cv-00485-AG -AJW Document 311 #:7182

Filed 07/25/11 Page 7 of 7 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant Taitzs Motion to Dismiss as to Cause of Actions 1 through 4, 8 and 9, Plaintiffs respectfully request to be able to properly respond to these causes. If the Court should decide to Grant any part of Defendant Orly Taitzs Motion, Plaintiffs seek Leave to Amend their Complaint. Respectfully submitted,

Dated: July 25, 2011

/s/ Philip J. Berg ______________________________ Philip J. Berg, Esquire Pennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG

555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 E-mail: [email protected] Attorney in Pro Se and Counsel for Plaintiffs

Liberi, et al, Plaintiffs Resp. in Opp. To Taitzs MTD filed 07.11.2011