LIBERI v TAITZ (APPEAL - 9th CIRCUIT) - APPELLANT'S (TAITZ) OPENING BRIEF - TransportRoom.10-1

8/3/2019 LIBERI v TAITZ (APPEAL - 9th CIRCUIT) - APPELLANT'S (TAITZ) OPENING BRIEF - TransportRoom.10-1

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Case No. 11-56164

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lisa Liberi, et al.,

Plaintiffs/Appellees,

v.

Orly Taitz, Defend Our FreedomsFoundations, Inc., et al.,

Defendants/Appellants.

_________________________________

)))))))))

)))))

Appeal from the United StatesDistrict Court for the Central

District of California

Civil Action No.:8:11-CV-00485-AG (AJWx)

OPENING BRIEF BY APPELLANT,ORLY TAITZ

Kim Schumann, Esq., CSBN 170942Jeffrey Cunningham, Esq., CSBN 151067SCHUMANN, RALLO & ROSENBERG, LLP3100 S. Bristol St., Suite 400Costa Mesa, CA 92626(714) 850-0210 - telephone(714) 850-0551 - fax

Counsel for Defendant/Appellant,Orly Taitz

Case: 11-56164 12/19/2011 ID: 8005455 DktEntry: 10-1 Page: 1 of 46 (1 of


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TABLE OF CONTENTS

SECTION PAGE NO.

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case/Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Parties Background and Related Litigation . . . . . . . . . . . . 6

1. Summary of Orly Taitzs and Philip J. Bergs Activities 6

2. Lisa Liberis and Lisa M. Ostellas Background and

Relationships to Philip J. Berg . . . . . . . . . . . . . . . . . 8

B. Plaintiffs Complaint, Appellants anti-SLAPP Motion to

Strike and Denial of Such Motion . . . . . . . . . . . . . . . . . . . 9

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Summary of Appellants Alleged Acts in Furtherance of their

Rights of Petition and Free Speech in Connection with

Public Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. De Novo Standard of Review Regarding Denial of an

anti-SLAPP Motion to Strike Under California Code of

Civil Procedure Section 425.16 . . . . . . . . . . . . . . . . . . . . 13

B. Legal Standards Applicable to an anti-SLAPP Motion toStrike Under California Code ofCivil Procedure

Section 425.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13



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II. The District Court, as a Matter of Law, Erred in Concluding that

Appellants Did Not Meet Their Burden of Proof Under Section

425.16(b)(1) to Show That Plaintiffs Complaint Arises Out of

Appellants Acts in Furtherance of Their Rights of PetitionOr Free Speech in Connection with a Public Issue . . . . . . . . . . . 16

A. Appellants Met Their Burden Under Section 425.16(b)(1)

Where Plaintiffs Complaint Clearly Arises Out of

Appellants Alleged Acts in Furtherance of Their Rights

Of Petition and Free Speech in Connection with Public

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Applicable Legal Standards Under Section 425.16(e) 16

a. Appellants Right of Petition . . . . . . . . . . . . . 17

b. Appellants Right of Free Speech . . . . . . . . . 18

2. Appellants Alleged Acts in Furtherance of Their

Rights of Petition and Free Speech in Connection

With Public Issues . . . . . . . . . . . . . . . . . . . . . . . . 20

a. Appellants Allegedly Made Written or Oral

Statement[s] or Writing[s] Made Before a

Legislative, Executive, or Judicial Proceeding,

Or Any Other Official Proceeding Authorized

By Law.... as Required by Section

425.16(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . 20

b. Appellants Allegedly Made Written or OralStatement[s] or Writing[s] Made in Connection

With an Issue Under Consideration or Review

by a Legislative, Executive, or Judicial Body,

or any other Official Proceeding Authorized



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by Law.... as Required by Section

425.16(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . 22

c. Appellants Allegedly Made Written or Oral

Statement[s] or Writing[s] Made in a PlaceOpen to the Public or a Public Forum in

Connection with an Issue of Public Interest...

as Required by Section 425.16(e)(3) . . . . . . . 23

d. Appellants Allegedly Engaged in Any Other

Conduct in Furtherance of the Exercise of

Constitutional Right of Petition or the

Constitutional Right of Free Speech in

Connection with a Public Issue or an Issue of

Public Interest as Required by Section

425.16(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . 27

III. The District Court, as a Matter of Law, Erred In Concluding that

Plaintiffs Met Their Burden of Proof Under California Code of

Civil Procedure Section 425.16(b)(1) to Demonstrate the

Probability of Prevailing as Against Appellants . . . . . . . . . . . . . 28

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

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)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28



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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)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30a. Plaintiffs Count One, for Violation of the

First and Fourteenth Amendment [sic] of the

United States Constituion [sic], is Legally

Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . 30

b. Plaintiffs Count Two, For DefamationPer

Se, Slander and Libel, is Legally Insufficient . 31

c. Plaintiffs Count Three, for False-Light

Invasion of Privacy, is Legally Insufficient . . 32

d. Plaintiffs Count Four, for Harrassment,

is Legally Insufficient as well as Not Being a

Legally-cognizable Claim . . . . . . . . . . . . . . . 32

e. Plaintiffs Count Five, for False

Designations and Descriptions of Facts,

is Legally Insufficient . . . . . . . . . . . . . . . . . . 33

f. Plaintiffs Count Six, for Injunctive Relief,

is Legally Insufficient and is Not a Separate

Claim for Relief . . . . . . . . . . . . . . . . . . . . . . 34

B. Plaintiffs Did Not Meet Their Burden of Proof Under

Section 425.16(b)(1) to Present Competent and AdmissibleEvidence Sufficient to Sustain a Judgment in Their Favor

on the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37



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TABLE OF AUTHORITIES

Federal Cases

American Title Ins. Co. v. Lovelaw Corp. (9th Cir. 1988)861 F.2d 224, 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 32, 33, 35

Batzel v. Smith (9th Cir. 2003)333 F.3d 1018, 1026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Motor Transport Co. v. Trucking Unlimited(1972)404 U.S. 508, 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave. (1st Cir. 2002)284 F.3d 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Colligan v. Activities Club of New York, Ltd(2nd Cir. 1971)442 F.2d 686 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Erie Railroad Co. v. Tompkins (1938)304 U.S. 64, 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 33, 35

Gertz v. Robert Welch, Inc. (1974)418 U.S. 323, 339-40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mindys Cosmetics, Inc. v. Dakar(9th Cir. 2010)611 F.3d 590, 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

N.A.A.C.P. v. Button (1963)371 U.S. 415, 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Parkway Baking Co. v. Freihofer Baking Co. (3rd Cir. 1958)255 F.2d 641

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34

Rendell-Baker v. Kohn (1982)457 U.S. 830, 837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 30

Ruvalcaba v. City of Los Angeles (9th Cir. 1995)64 F.3d 1323, 1328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Shelley v. Kraemer(1948)334 U.S. 1, 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 30

Troy Group, Inc. v. Tilson (2005)

364 F.Supp.2d 1149, 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24United States v. Gilbert(9th Cir. 1995)57 F.3d 709, 711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

State Cases

Action Apartment Assn., Inc. v. City of Santa Monica (2007)41 Cal.4th 1232, 1250-51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18



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Ampex Corp. v. Cargle (2005)128 Cal.App.4th 1569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Annette F. v. Sharon S. (2004)119 Cal.App.4th 1146, 1160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

Averill v. Superior Court(1996)42 Cal.App.4th 1170, 1175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Braun v. Chronicle Publishing Co. (1997)52 Cal.App.4th 1036, 1043 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1113, 1115, 1117-18 . . . . . . . . . . . . . . . . . . . . . . . 17, 21, 23

Church of Scientology v. Wollersheim (1996)42 Cal.App.4th 628, 651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Cotati v. Cashman (2002)

29 Cal.4th 69, 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

City of South Pasadena v. Department of Transportation (1994)29 Cal.App.4th 1280, 1293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

ComputerXpress, Inc. v. Jackson (2001)93 Cal.App.4th 993, 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Damon v. Ocean Hills Journalism Club (2000)85 Cal.App.4th 468, 472 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24, 26

Equilon Enterprises v. Consumer Cause, Inc. (2002)29 Cal.4th 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Kibler v. N. Inyo County Local Hospital Dist. (2006)39 Cal.4th 192, 196-98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Martinez v. Metabolife Internat, Inc. (2003)113 Cal.App.4th 181, 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Matson v. Dvorak(1995)40 Cal.App.4th 539, 548 . . . . . . . . . . . . 3, 14, 15, 26, 28, 29, 32, 33, 34, 35, 37

McCoy v. Hearst Corp. (1986)42 Cal.3d 835, 859 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Meister v. Regents of University of California (1998)67 Cal.App.4th 437, 446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

M.G. v. Time Warner, Inc. (2001)89 Cal.App.4th 623, 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLP(2005)133 Cal.App.4th 658, 672 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15



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Rivero v. AFL-CIO (2003)105 Cal.App.4th 913, 923-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rosenaur v. Scherer(2001)88 Cal.App.4th 260, 274 . . . . . . . . . . . . . . . . . . . 12, 28, 29, 32, 33, 34, 35, 37

Seeling v. Infinity Broadcasting Corp. (2002)97 Cal.App.4th 798, 807. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Sipple v. Foundation for Nat. Progress (1999)71 Cal.App.4th 226, 236-37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23, 25

Taus v. Loftus (2007)40 Cal.4th 683, 713-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

Thomas v. Quintero (2005)125 Cal.App.4th 624-25, 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 28

Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003)

106 Cal.App.4th 1219, 1232-33. . . . . . . . . . . . . . . . . . . . . . . . . . .

14, 27, 28

Federal Statutes

28 U.S.C. 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Federal Rule of Evidence 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

State Statutes

Code of Civil Procedure 425.16 . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 19, 37Code of Civil Procedure 425.16(a) . . . . . . . . . . . . . . . . . . . . . . 13, 14, 17, 37Code of Civil Procedure 425.16(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14Code of Civil Procedure 425.16(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 6, 12, 15, 16, 28, 29, 32, 33, 34, 35, 36

Code of Civil Procedure 425.16(e) . . . . 5, 12, 14, 16, 17, 18, 21, 22, 23, 26, 27Code of Civil Procedure 425.16(e)(1) . . . . . . . . . . . . . . . . . . . . . 5, 20, 21, 22Code of Civil Procedure 425.16(e)(2) . . . . . . . . . . . . . . . . . . . . . . . 5, 22, 23Code of Civil Procedure 425.16(e)(3) . . . . . . . . . . . . . . . . . . 5, 24, 25, 26, 27Code of Civil Procedure 425.16(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27Code of Civil Procedure 425.16(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Code of Civil Procedure 527.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Code of Civil Procedure 904.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Civil Code 1798 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Civil Code 1798.3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31Civil Code 1798.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31



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Introduction

This case arises out of an ongoing dispute involving the political dissident

movement, including a component known as the Birther Movement, by those

challenging the qualifications of Barack Obama to hold the office of President ofthe United States of America. Defendant and Appellant, ORLY TAITZ (Taitz),

is a political dissent leader who, individually and through Defendant and

Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF)

(collectively Appellants), has been and remains the leader of this movement.

Litigation is one of this movements tools to advance its goals, including

several cases involving Birther causes. [See, concurrently-filed Request for

Judicial Notice (RJN).] Such litigation is a form of petition for redress of

grievances under the United States Constitution, Article I. Plaintiffs acknowledge

Appellants exercise of their right of petition regarding Taitz filing complaints...

on behalf of Alan Keyes and other Plaintiffs against the California Secretary of

State and other Defendants regarding the Barry Soetoro a/k/a Barack H. Obama

citizenship issues. [Volume 1, Excerpts of Record (ER), 258.]

Plaintiff and Appellee, PHILIP J. BERG (Berg), is also involved in the

political dissident movement. For example, Berg has filed a case challenging

President Obamas qualifications to be President, and claims to carry the mantle of

the Birther Movement through www.obamacrimes.com. [1 ER, 297; RJN,

Exhibit 3.] Berg, assisted by Plaintiffs and Appellees, LISA LIBERI (Liberi)

and LISA M. OSTELLA (Ostella), have interfered with Appellants websites

and internet blogs, created misleading and competing websites such asdefendourfreedoms.net, and diverted donations from DOFF to entities controlled

http://www.obamacrimes.com./http://www.obamacrimes.com./


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by Plaintiffs. Plaintiffs have interfered with Appellants political fundraising

activities, crucial to fund litigation and other activities in support of this

movement.

To combat Plaintiffs wrongful acts, Appellants have exposed theirwrongful tactics to the movements followers including to reveal that Liberi is a

convicted felon who cannot be allowed to control donations intended to advance

the goals of the movement. The terms of Liberis parole forbid her from having

any involvement with such fundraising. Appellants have informed government

authorities of Plaintiffs actions and sought redress for same, including from the

United States Supreme Court, Federal Bureau of Investigation, and California

Attorney General. Appellants have sought revocation of Liberis parole through

the San Bernardino County, California District Attorney.

At all times, Appellants have acted as necessary whistleblowers against

Plaintiffs wrongful acts which include diversion of political donations, have

sought redress of their grievances from the federal and California governments,

and have exposed Plaintiffs corruption of such movement. What Plaintiffs

mischaracterize as defamation is in fact Appellants exercise of their constitutional

rights of petition and free speech on issues of great public interest, including as to

leadership of the Birther Movement challenging the qualifications of President

Obama to hold the highest office in the United States.

Appellants have acted squarely within the protections of Californias anti-

SLAPP statute in pursuing acts in furtherance of the person's right of petition or

free speech under the United States Constitution or the California Constitution inconnection with a public issue.... California Code of Civil Procedure

425.16(b)(1). (Unless otherwise noted, all statutory references herein are to the

California Code of Civil Procedure.) The essence of Appellants alleged actions



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involve the right to speak on political matters, regarded under the anti-SLAPP

statute asthe quintessential subject of our constitutional protections of the right

of free speech.Matson v. Dvorak, 40 Cal.App.4th 539, 548 (1995).

Plaintiffs have but one purpose - to silence Appellants whistleblowing infurtherance of the political dissident movement by chilling Appellants exercise of

their constitutional rights of petition and free speech. Appellants in their anti-

SLAPP motion clearly demonstrated that their alleged acts arose from petitioning

and free speech protected by the anti-SLAPP statute. Plaintiffs improper motives

herein include to prevent Liberis criminal record from becoming known to this

movements followers, which would in turn deter followers from donating to Berg

and his website, as well as to prevent revocation of Liberis probation.

Plaintiffs frivolous case is intended to drain, and has drained, Appellants

financially and emotionally, thus accomplishing Plaintiffs goal to diminish

Appellants standing and influence in this political movement. Plaintiffs action

has resulted in the evils which the anti-SLAPP statute was enacted to prevent.

Plaintiffs failed to meet their burden to demonstrate a probability of

prevailing on their Complaint against Appellants as required by 425.16(b)(1).

Notably, Plaintiffs admitted that their Complaint was legally insufficient and, thus,

that they could not satisfy the first prong of their burden. Plaintiffs also failed to

support their (admittedly insufficient) claims with competent and admissible

evidence, thus failing to satisfy the second prong of their burden.

As demonstrated herein, no legal or factual basis supports the District

Courts denial of Appellants anti-SLAPP motion. The order denying such motionshould therefore be reversed.



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Statement of Jurisdiction

On May 4, 2009, Plaintiffs and Appellees, Berg, Liberi, Ostella, THE LAW

OFFICES OF PHILIP J. BERG, and GO EXCEL GLOBAL (collectively

Plaintiffs), commenced this action in the United States District Court for theEastern District of Pennsylvania (Civil Action No. 09-1898; Hon. Eduardo C.

Robreno, Judge). Jurisdiction herein is predicated upon diversity of citizenship. 28

U.S.C. 1332. [1 ER, 255.]

On June 3, 2010, the District Court in Pennsylvania severed the action and

transferred the claims to each Defendants home jurisdiction, with a portion of the

action being transferred to the United States District Court for the Central District

of California (Civil Action No. No. 8:11-CV-00485-AG (AJWx); Hon. Andrew J.

Guilford, Judge ). [1 ER, 4.]

On June 14, 2011, the District Court denied Appellants joint anti-SLAPP

motion to strike the Complaint. [1 ER, 4-9.] On June 27, 2011, DOFF filed its

Notice of Appeal from the subject order. [1 ER, 3.] On July 13, 2011, Taitz filed

her Notice of Appeal from the order. [1 ER, 1-2.]

Denial of an anti-SLAPP motion under California law is an appealable final

decision within the meaning of 28 U.S.C. 1291. Batzel v. Smith, 333 F.3d 1018,

1026 (9th Cir. 2003).Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th

Cir. 2010). In California state courts, denial of an anti-SLAPP motion is

immediately appealable. California Code of Civil Procedure 425.16(j) and

904.1.



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Issues Presented

The issues presented herein are:

1. Whether Appellants made a threshold showing that their alleged acts

arose from protected activity, specifically any act of that person in furtherance ofthe person's right of petition or free speech under the United States Constitution or

the California Constitution in connection with a public issue.... under

425.16(b)(1).

Relatedly, by application of the definition of "act in furtherance of a

person's right of petition or free speech under the United States or California

Constitution in connection with a public issue" of 425.16(e), the issues presented

include:

a. Whether Appellants made any written or oral statement or

writing made before a legislative, executive, or judicial proceeding, or any other

official proceeding authorized by law.... Section 425.16(e)(1).

b. Whether Appellants made any written or oral statement or

writing made in connection with an issue under consideration or review by a

legislative, executive, or judicial body, or any other official proceeding authorized

by law.... Section 425.16(e)(2).

c. Whether Appellants made any written or oral statement or

writing made in a place open to the public or a public forum in connection with an

issue of public interest.... Section 425.16(e)(3); or

d. Whether Appellants engaged in any other conduct in

furtherance of the exercise of the constitutional right of petition or theconstitutional right of free speech in connection with a public issue or an issue of

public interest. Section 425.16(e)(4).



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2. Whether Plaintiffs met their burden to demonstrate a probability of

prevailing on their Complaint as against Appellants as required by 425.16(b)(1),

by demonstrating the legal sufficiency of the Complaint and establishing facts via

competent and admissible evidence to sustain a favorable judgment.Statement of the Case/Procedural History

A. Parties background and related litigation

1. Summary of Orly Taitzs and Philip J. Bergs activities

Judge Robreno succinctly summarized Plaintiffs and Appellants history in

his December 23, 2010 Memorandum:

In sum, Plaintiffs and Defendants are part of the birther

movement, which is comprised of individuals who believethat President Obama is ineligible to be President of theUnited States because he was born in Kenya. At one time,Plaintiffs and Defendants worked together to attempt to

prove President Obamas illegitimacy but infighting amongthem led to this lawsuit.[1 ER, 238.]

Judge Robreno correctly noted: 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 wish to silence Appellants whistleblowing

activities toward advancement of this movement, including as to Plaintiffs

diversion of donations from the movements followers, by chilling Appellants

exercise of their rights of petition and free speech.

A brief history of the parties involvement is necessary to understand their

relationships, and reveals Plaintiffs improper motives driving this case. Taitz has

been and remains the leader of this movement, both individually and through

various websites and blogs, including through DOFF and its former website.

Taitzs primary website is www.orlytaitzesq.com. (RFN, Exhibit 1.) It is the

http://www.orlytaitzesq.com./http://www.orlytaitzesq.com./


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Worlds Leading Obama Eligibility Challenge Web Site. Donations from

followers of this movement are necessary to fund its petition and free speech

activities, including litigation advancing the causes championed by Appellants.

Taitz has been featured globally in thousands of television, radio and newspaperinterviews and documentaries.

Plaintiffs scheme forced Taitz to abandon DOFFs original website, which

included their creation of misleading websites such as defendourfreedoms.net

designed to confuse the movements followers and siphon-off donations that

otherwise would be received by DOFF. (This topic, including Taitzs alleged

statements to defend her rights to express her political views through DOFF, is a

subject of Plaintiffs Complaint discussed below.)

Appellants subject website lists numerous cases brought by Taitz

advancing the political dissident movement. One example is Keyes, et al. v.

Barack H. Obama, et al., U.S.D.C., Central District of California Case No. SA-

CV-00082 (RFN, Exhibit 2.) Taitz represents all Plaintiffs in such case, including

former Presidential candidate Alan Keyes. Appeal in such case is pending before

the Ninth Circuit Court of Appeals (Judges Berzon, Fisher and Pregerson).

Berg purports to occupy a leadership position in this movement. For

example, he maintains www.obamacrimes.com. (RFN, Exhibit 3.) Berg touts

himself as the first Attorney who filed suit against Barack H. Obama on August

21, 2008 challenging Obamas lack of Constitutionally Eligibility to serve as

President of the United States.... (RFN, Exhibit 3.) Berg solicits donations to

offset the cost of the cases concerning the eligibility of B.H. Soetoro/Obama....(RFN, Exhibit 3.)

http://www.obamacrimes.com./http://www.obamacrimes.com./


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Like Taitz, Berg has pursued this movements agenda via litigation. For

example, Berg has filed cases challenging President Obamas eligibility. (See,

Berg v. Obama, U.S.D.C., District of Columbia Case No. 1:08-cv-01933; RFN,

Exhibit 4.)2. Lisa Liberis and Lisa M. Ostellas background and

relationships to Philip J. Berg

Liberi is a convicted felon working with Berg as a paralegal and in

connection with his activities in the political dissident movement. Appellants

submitted with their motion documents evidencing Liberis criminal record,

including convictions for grand theft, forgery, and forgery of an official seal under

Californias Penal Code. At least twenty-three criminal charges were brought

against Liberi for multiple felonies. [1 ER, 191-204.]

Liberi was sentenced to thirty-six months supervised probation on various

terms, including the following:

Not maintain a checking account or complete or endorseany checks unless made payable to you and not have any

blank checks in your possession without permission of theprobation officer... Neither possess nor use any credit cardwithout permission of the probation officer... TheDefendant is not to file any lawsuit/legal action without

prior contact with probation officer.... [1 ER, 196-197.]

One of Plaintiffs improper purposes herein was to silence Appellants

whistleblowing to the political dissident movement about Liberis criminal

record, her terms of probation, and violation of such terms in connection with her

involvement in diverting donations away from Appellants and fundraising

activities for Berg. Plaintiffs were fearful that if such information became publiclyknown it would make donations to Berg impossible, as no rationale follower of

this movement would place money in the hands of a convicted felon such as

Liberi.



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Liberis personal improper motivation herein was to prevent revocation of

her probation, which would result in her serving an eight year prison sentence, as a

result of Appellants whistleblowing and cooperation with officials toward

revocation of such probation.Ostella formerly worked as a webmaster for Taitz in connection with

DOFFs former website. Ostella is responsible for interfering with Appellants

websites and internet blogs, creating misleading websites and diverting donations

from DOFF to entities controlled by Plaintiffs. [1 ER, 259.]

B. Plaintiffs Complaint, Appellants anti-SLAPP motion to strike

and denial of such motion

Plaintiffs filed their 81-page Complaint on May 4, 2009. [1 ER, 252-335 .]

Although it is largely incomprehensible, the gravamen of the Complaint appears to

be defamation and invasion of privacy. The Complaint is not a required short and

plain statement of Plaintiffs claims in violation of Fed. R. Civ. P. 8(a). It is

blatantly improper in substance and format, containing numerous instances of

evidence (e.g., emails and photographs) being pasted into the pleading, and

which are replete with frequent profanity and Plaintiffs irrelevant editorial

commentary.

Plaintiffs admitted that their Complaint was legally insufficient. [1 ER, 125:

5-8.] Representative of Plaintiffs improper claims is the Complaints Count

One for Violation of the First and Fourteenth Amendment to the United States

Constitution. [1 ER, 311-316.] As a matter of hornbook law, neither the First

nor Fourteenth Amendment apply to private conduct.Rendell-Baker v. Kohn, 457U.S. 830, 837 (1982). Shelley v. Kraemer, 334 U.S. 1, 13 (1948).



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On April 25, 2011, Appellants filed their anti-SLAPP motion. [1 ER, 155-

188.] On May 5, 2011, Plaintiffs filed their opposition to said motion. [1 ER, 117-

141.] On May 27, 2011, Appellants filed their reply memorandum with supporting

documents, including memoranda of evidentiary objections to the declarations ofBerg and Liberi. [1 ER, 32-106.]

On June 13, 2011, the Court conducted a hearing on the motion. [1 ER, 10-

24.] On June 14, 2011, the Court issued its order denying the motion. [1 ER, 4-9.]

DOFF filed its Notice of Appeal on June 27, 2011. [1 ER, 3.] On July 13, 2011,

Taitz filed her Notice of Appeal from the order. [1 ER, 1-2.]

Statement of Facts

A. Summary of Appellants alleged acts in furtherance of their

rights of petition and free speech in connection with public issues

Plaintiffs Complaint contains numerous instances of Appellants alleged

acts in furtherance of their rights of petition and free speech in connection with

public issues. A sampling of such allegations includes the following:

! Appellants allegedly published reports on the internet of Plaintiffs

interference with Appellants websites and internet blogs, creation of misleading

websites and diversion of donations from DOFF to entities controlled by

Plaintiffs. Ostella used DOFFs website to criticize Taitz and promote Berg to the

political dissident movement. Plaintiffs allege that Ostella changed the PayPal

script in the donations button to reflect her own account and removed Taitzs

accounts from the site. [1 ER, 264.] It was in the publics interest, particularly the

many adherents of this movement including its Birther component, to know ofPlaintiffs usurpation of Appellants website including their scheme to divert

donations from Appellants and to Plaintiffs. [1 ER, 259-277.]



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! Per Plaintiffs, Taitz wrote to the U.S. Supreme Court Justices

seeking help in an investigation regarding a criminal complaint she had filed with

the Federal Bureau of Investigation regarding hacking into her websites and

tampering of her PayPal accounts... Taitz sent this same letter to the Secret Serviceand other Governmental Law Enforcement Agencies. [1 ER, 262.]

! Appellants allegedly published the criminal record of Liberi. [1 ER,

268.] Liberi has an extensive criminal record, including convictions for grand

theft, passing checks on insufficient funds, forging instruments for filing with

government agencies, and forging an official seal. Liberi has been charged with

numerous other crimes. [1 ER, 272-280.] Appellants allegedly informed Berg

(believing at the time he was unaware of Liberis criminal history) of same,

including that Liberis husband was on parole and had set up two accounts

accepting credit card donations for Bergs foundation. It was in the publics

interest to know of Liberis criminal record, particularly to protect donors against

Plaintiffs possible theft of such donations, including potentially toward payment

of Liberis obligation for criminal restitution.

! Appellants allegedly contacted Liberis probation officer in New

Mexico, and the San Bernardino County District Attorney, informing them of

Liberis violation of the terms of her probation, including that Liberi could not

possess nor use any credit card without permission of the probation officer. [1

ER, 268, and 275-279.]

By any measure, and based on Plaintiffs own allegations, Appellants

alleged acts were done in furtherance of their rights of petition and free speech inconnection with public issues all focused upon the right to speak on political

matters, regarded under the anti-SLAPP statute asthe quintessential subject of



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our constitutional protections of the right of free speech.Matson,supra, 40

Cal.App.4th at 548.

Summary of Argument

The order denying Appellants motion should be reversed. Appellantsclearly met (and in fact exceeded) their burden under 425.16(b)(1) to

demonstrate that Plaintiffs Complaint arises out of Appellants alleged acts in

furtherance of their rights of petition and free speech in connection with a public

issue. Appellants demonstrated protected activity coming within each subpart of

425.16(e) describing "act[s] in furtherance of a person's right of petition or free

speech....

Conversely, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to

demonstrate a probability of prevailing as against Appellants. Notably, Plaintiffs

made a judicial admission that the Complaint was legally insufficient. This

admission was dispositive where a plaintiff must demonstrate that its complaint is

both legally sufficientandsupported by a prima facie factual showing.Rosenaur

v. Scherer, 88 Cal.App.4th 260, 274 (2001). Plaintiffs also failed to satisfy their

burden to present competent and admissible evidence making the required factual

showing.

The District Court as a matter of law erred in misinterpreting and

misapplying Appellants and Plaintiffs burdens under 425.16. Its order should

be reversed.



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Legal Discussion

I.

Standard of Review

A. De novo standard of review regarding denial of an anti-SLAPPmotion to strike under California Code of Civil Procedure section

425.16

The Court of Appeal in Thomas v. Quintero, 126 Cal.App.4th 635, 624-625

(2005) held:

A ruling on a special motion to strike under 425.16 isreviewed de novo. [Citation.] This includes whether theanti-SLAPP statute applies to the challenged claim.

[Citation.] Furthermore, we apply our independentjudgment to determine whether [the plaintiff's] causes ofaction arose from acts by [the defendant] in furtherance of[the defendant's] right of petition or free speech inconnection with a public issue. [Citation.] [Only when]these two conditions are satisfied, [do] we thenindependently determine, from our review of the record asa whole, whether [the plaintiff] has established areasonable probability that he would prevail on his claims.[Citation.] (Emphasis added.)

B. Legal standards applicable to an anti-SLAPP motion to strike

under California Code of Civil Procedure section 425.16

The California Legislature has declared that freedom of speech and the right

to petition the government for redress of grievances shall not be discouraged

through abuse of the judicial process. Section 425.16(a) and (b) state:

(a) The Legislature finds and declares that there has beena disturbing increase in lawsuits brought primarily to chillthe valid exercise of the constitutional rights of freedom ofspeech and petition for the redress of grievances. The

Legislature finds and declares that it is in the publicinterest to encourage continued participation in matters ofpublic significance, and that this participation should notbe chilled through abuse of the judicial process. To thisend, this section shall be construed broadly.



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(b)(1) A cause of action against a person arising from anyact of that person in furtherance of the person's right of

petition or free speech under the United States Constitutionor the California Constitution in connection with a publicissue shall be subject to a special motion to strike, unlessthe court determines that the plaintiff has established that

there is a probability that the plaintiff will prevail on theclaim.

(b)(2) In making its determination, the court shall considerthe pleadings, and supporting and opposing affidavitsstating the facts upon which the liability or defense is

based." (Emphasis added.)

A defendant bringing an anti-SLAPP motion makes an initial prima facie

showing that plaintiff's suit arises from an act in furtherance of defendant's right of

petition or free speech by demonstrating that the acts underlying plaintiff's cause

fit one or more of the categories spelled out 425.16(e).Braun v. Chronicle

Publishing Co., 52 Cal.App.4th 1036, 1043 (1997).

The definition of public interest within the anti-SLAPP law is broadly

construed to include private conduct that impacts a broad segment of society.

Damon v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 472 (2000).

Relatedly, public discussion about the qualifications of those who hold or who

wish to hold positions of public trust presents the strongest possible case for

applications of the safeguards afforded by the First Amendment.Matson, supra,

40 Cal.App.4th at 548.

A cause of action arises from protected activity where the act underlying

plaintiff's cause of action, or the act which forms the basis for it was itself an act

in furtherance of the right of petition or free speech. City of Cotati v. Cashman,

29 Cal.4th 69, 78 (2002). The Courts determination on this issue is subject to denovo review. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port

Dist., 106 Cal.App.4th 1219, 1232 (2003).



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The "arising from" prong encompasses any action based on protected

speech or petitioning activity, as defined in 425.16(e), regardless of whether

plaintiff's lawsuit was intended to chill, or actually chilled, defendant's protected

conduct.Martinez v. Metabolife Internat., Inc., 113 Cal.App.4th 181, 187(2003).The phrase "arising from" in 425.16 (b)(1) has been interpreted to mean that "the

act underlying the plaintiff's cause" or "the act which forms the basis for the

plaintiff's cause of action" must have been an act in furtherance of the right of

petition or free speech.Braun,supra, 52 Cal.App.4th at 1043.

If a Court finds that defendant has made the threshold showing, it then

determines whether plaintiff has demonstrated a probability of prevailing on the

claim. Section 425.16(b)(1). In order to establish a probability of prevailing on the

claim, a plaintiff responding to an anti-SLAPP motion must must demonstrate

that the complaint is both legally sufficientandsupported by a sufficient prima

facie showing of facts to sustain a favorable judgmentif the evidence submitted

by the plaintiff is credited.Matson, supra, 40 Cal.App.4th at 548; emphasis

added.

A complaint combining allegations of protected and nonprotected activity is

subject to 425.16 if at least one of the alleged underlying acts is protected

conduct.Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLP, 133

Cal.App.4th 658, 672 (2005). An anti-SLAPP motion may be granted as to some

causes of action, and denied as to other causes of action of a Complaint, as its

requirements are to be applied and determined as to each of plaintiffs claims.

ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1004 (2001).



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II.

The District Court, as a Matter of Law, Erred in Concluding that Appellants

Did Not Meet Their Burden Under Section 425.16(b)(1) to Show that

Plaintiffs Complaint Arises Out of Appellants Acts in Furtherance of TheirRights of Petition or Free Speech in Connection with a Public Issue

A. Appellants met their burden under section 425.16(b)(1) where

Plaintiffs Complaint clearly arises out of Appellants alleged acts

in furtherance of their rights of petition and free speech in

connection with public issues

1. Applicable legal standards under section 425.16(e)

A defendant meets its burden under 425.16(b)(1) by demonstrating that

the acts underlying plaintiff's cause fit one or more of the categories set out in

425.16(e).Braun, supra, 52 Cal.App.4th at 1043. 425.16(e) provides:

As used in this section, "act in furtherance of a person'sright of petition or free speech under the United States orCalifornia Constitution in connection with a public issue"includes: (1) any written or oral statement or writing made

before a legislative, executive, or judicial proceeding, orany other official proceeding authorized by law, (2) anywritten or oral statement or writing made in connectionwith an issue under consideration or review by alegislative, executive, or judicial body, or any other official

proceeding authorized by law, (3) any written or oralstatement or writing made in a place open to the public ora public forum in connection with an issue of publicinterest, or (4) any other conduct in furtherance of theexercise of the constitutional right of petition or theconstitutional right of free speech in connection with a

public issue or an issue of public interest.

In determining whether a cause of action falls within the scope of

subdivision (e), courts must broadly construe the anti-SLAPP statute.Annette F.

v. Sharon S.,119 Cal.App.4th 1146, 1160 (2004); emphasis added.



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The categories enumerated in 425.16(e) are not all-inclusive. Because the

subsection is preceded by the word "includes," other unmentioned acts are also

protected under the statute.Averill v. Superior Court, 42 Cal.App.4th 1170, 1175

(1996). Such a threshold showing can be established in several circumstances,including if the moving party demonstrates that it made the alleged statement in a

place open to the public or a public forum in connection with an issue of public

interest. 425.16(e)(3). Seelig v. Infinity Broadcasting Corp., 97 Cal.App.4th 798,

807 (2002). Appellants submit that they clearly satisfied this burden, and in fact

exceeded it, where their alleged acts fit into allfour categories of 425.16(e).

The District Courts order contains no analysis or findings on the issue of

whether that the alleged acts underlying the Complaint fall into one or more of the

categories set out in 425.16(e); there is merely a conclusion that Defendants

have failed to make a prima facie showing that the acts complained of fall into any

of those four categories of 425.16(e). [1 ER, 8.] No alleged acts set out in the

Complaint are analyzed with regard to the four categories. In reaching its

unsupported conclusion, it is clear that the District Court applied an impermissibly

narrow standard as to Appellants exercise of their rights of petition and free

speech, as well as the meaning of in furtherance of such rights and in

connection with a public issue" in contravention of the legislative directive that

this section shall be construed broadly. Section 425.16(a).

a. Appellants Right of Petition

The California Supreme Court has declared that [t]he constitutional right to

petition includes the basic act of filing litigation or otherwise seekingadministrative action."Briggs v. Eden Council for Hope & Opportunity, 19

Cal.4th 1106, 1115 (1999). Federal law is in accord. For example, in California



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Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972), the

Supreme Court held: The right of access to the courts is indeed but one aspect of

the right of petition.

Section 425.16 (e) defines an act in furtherance of a persons right ofpetition to include: (1) any written or oral statement or writing made before a

legislative, executive, or judicial proceeding, or any other official proceeding

authorized by law; (2) any written or oral statement or writing made in connection

with an issue under consideration or review by a legislative, executive, or judicial

body, or any other official proceeding authorized by law.... Communications

made in preparation for or in anticipation of the bringing of an action or other

official proceeding fall within the ambit of these subdivisions.Action Apartment

Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1250-1251(2007).

It is axiomatic that the qualifications of a declared candidate for public

office raise a public issue.McCoy v. Hearst Corp., 42 Cal.3d 835, 859 (1986). The

core of the dispute herein involves the Birther Movement challenging the

qualifications of President Obama. Plaintiffs seek to silence Appellants

whistleblowing to the political dissident community and influence such

movements primary tool to advance its goals - litigation and other petitioning

activity spearheading a nationwide debate on such public issue. Appellants have

thus clearly demonstrated act[s] in furtherance of [their] right of petition under

the anti-SLAPP law.

b. Appellants Right of Free Speech

The United States Constitution, First Amendment provides: Congress shallmake no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of



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the people peaceably to assemble, and to petition the Government for a redress of

grievances.

The constitutional protection for free speech does not turn upon "the truth,

popularity, or social utility of the ideas and beliefs which are offered."N.A.A.C.P.v. Button, 371 U.S. 415, 445 (1963). Under the First Amendment, "[h]owever

pernicious an opinion may seem, we depend for its correction not on the

conscience of judges and juries but on the competition of other ideas." Gertz v.

Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).

The central subject of Appellants free speech at issue involves the Birther

Movement challenging the qualifications of President Obama. Such protected

speech as a matter of law concerns a public issue.McCoy,supra, 42 Cal.3d at 859.

Appellants free speech activities were without question entitled to protection

under 425.16.

The only logical explanation for why the District Court found to the

contrary is that it dismissed Appellants activities and speech, all in connection

with leadership of the Birther Movement, as trivial, pernicious or even

crackpot. However, the Courts apparent view has no place in ruling upon

Appellants motion. No matter how provocative or unpopular Appellants political

activities may be, they still, as a matter of law, are entitled to protection under the

First Amendment including via an anti-SLAPP motion under 425.16.

N.A.A.C.P.,supra, 371 U.S. at 445. Gertz,supra, 418 U.S. at 339-340.



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2. Appellants alleged acts in furtherance of their rights of

petition and free speech in connection with public issues

a. Appellants allegedly made written or oral

statement[s] or writing[s] made before a legislative,executive, or judicial proceeding, or any other official

proceeding authorized by law.... as required by

section 425.16(e)(1)

Plaintiffs allege that Taitz wrote to the U.S. Supreme Court Justices

seeking help in an investigation regarding a criminal complaint she had filed with

the Federal Bureau of Investigation regarding hacking into her websites and

tampering of her PayPal accounts... Taitz sent this same letter to the Secret Service

and other Governmental Law Enforcement Agencies. [1 ER, 262.] Taitz allegedly

sought redress for Plaintiffs actions from numerous government officials

including Attorney General Eric Holder and Solicitor General Elena Kagan.... [1

ER, 272.] Appellants also allegedly contacted Liberis probation officer in New

Mexico, and the San Bernardino County District Attorney, informing them of

Liberis violation of the terms of her probation, including that Liberi could not

possess nor use any credit card without permission of the probation officer, all

for the purpose of seeking redress for Liberis violation of her probation in

connection with Plaintiffs interference with Appellants websites and diversion of

donations. [1 ER, 268, and 275-279.]

Appellants alleged statements were unquestionably made before a

legislative, executive, or judicial proceeding, or any other official proceedingauthorized by law.... as required by 425.16(e)(1) and thusper se protected

activity under the anti-SLAPP statute.



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Under the unambiguous language of 425.16(e), an action may be a SLAPP

suit under subparts (1) and (2) without any separate demonstration by defendant

that its speech or petition concerned an issue of public significance.Briggs, supra,

19 Cal.4th at 1113. Sipple v. Foundation for Nat. Progress, 71 Cal.App.4th 226,236-237 (1999). The California Supreme Court inBriggs held:

At least as to acts covered by clauses one and two ofsection 425.16, subdivision (e), the statute requires simplyany writing or statement made in, or in connection with anissue under consideration or review by, the specified

proceeding or body. Thus these clauses safeguard freespeech and petition conduct aimed at advancing selfgovernment, as well as conduct aimed at more mundane

pursuits. Under the plain terms of the statute it is thecontext or setting itself that makes the issue a public issue:

all that matters is that the First Amendment activity takeplace in an official proceeding or be made in connectionwith an issue being reviewed by an official proceeding.

Briggs, supra, 19 Cal.4th at 1116; emphasis added.

By contrast, subparts (3) and (4) of 425.16(e) include an express

limitation to "issue[s] of public interest" but that limitation is not stated in subparts

(1) and (2).Briggs, supra, 19 Cal.4th at 1117-1118.

Thus, the first two subparts of 425.16(e) require simply any writing or

statement made in, or in connection with, an issue under consideration or review

by the specified proceeding or body.Kibler v. N. Inyo County Local Hospital

Dist., 39 Cal.4th 192, 196-198 (2006). Appellants burden under 425.16(e)(1)

thus did notinclude to show their speech or petition activity concerned an issue of

public significance.Briggs, supra, 19 Cal.4th at 1113. Sipple,supra, 71

Cal.App.4th at 236-237.

Appellants were required to demonstrate statements made before alegislative, executive, or judicial proceeding, or any other official proceeding

authorized by law.... as required by 425.16(e)(1). Appellants clearly met this

burden. Thus, the District Courts conclusion that Appellants failed to make a



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prima facie showing that the acts complained of fall into any of those four

categories of 425.16(e) is clearly erroneous under 425.16(e)(1). [1 ER, 8.]

b. Appellants allegedly made written or oral

statement[s] or writing[s] made in connection with anissue under consideration or review by a legislative,

executive, or judicial body, or any other official

proceeding authorized by law....

as required by section 425.16(e)(2)

Appellants alleged statements qualify as statements made in connection

with an issue under consideration or review by a legislative, executive, or judicial

body, or any other official proceeding authorized by law.... under 425.16(e)(2)

for the same reasons, explained above, that they are protected under

425.16(e)(1). For example, Plaintiffs allege that Taitz wrote to the U.S. Supreme

Court Justices seeking help in an investigation regarding a criminal complaint she

had filed with the Federal Bureau of Investigation regarding hacking into her

websites and tampering of her PayPal accounts.... [1 ER, 262.] Such complaint

was thus made in connection with an issue under consideration or review by a...

judicial body.... as well as with regard to any other official proceeding

authorized by law.... Similarly, Appellants alleged contact with Liberis

probation officer in New Mexico, and the San Bernardino County District

Attorney, informing them of Liberis violation of the terms of her probation, was

made in connection with an issue under consideration or review by a... judicial

body as well as any other official proceeding authorized by law....[1 ER, 268, and 275-279.]



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The requirements of 425.16(e)(2) are construed broadly, and even cover

an official proceeding authorized by law before a non-governmental entity.

Kibler,supra, 39 Cal.4th at 198. Here, Appellants alleged acts were in several

official proceeding[s] authorized by law before multiple governmental entities.Appellants alleged statements were thusper se protected activity under

425.16(e)(2).Appellants burden under 425.16(e)(2) did not include to show

their speech or petition activity concerned an issue of public significance.Briggs,

supra, 19 Cal.4th at 1113. Sipple,supra, 71 Cal.App.4th at 236-237. Appellants

met their burden under 425.16(e)(2). Thus, the District Courts conclusion that

Appellants failed to make a prima facie showing that the acts complained of fall

into any of those four categories of 425.16(e) is clearly erroneous under

425.16(e)(2). [1 ER, 8.]

c. Appellants allegedly made written or oral

statement[s] or writing[s] made in a place open to the

public or a public forum in connection with an issue

of public interest.... as required by section

425.16(e)(3)

Plaintiffs allege that Taitz engaged in whistleblowing via publishing

statements on various websites and internet blogs reporting that Plaintiffs

interfered with Appellants websites and internet blogs, created misleading

websites and diverted donations from DOFF to entities controlled by Plaintiffs. [1

ER, 264.]

Plaintiffs also allege that Taitz published statements on various websitesand blogs regarding the criminal record of Liberi. [1 ER, 268.] As a matter of law,

such alleged activities constituted written... statement[s] or writing[s] made in a



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place open to the public or a public forum in connection with an issue of public

interest.... under 425.16(e)(3).

Web sites where members of the public may read the views and information

posted, and post their own opinions, as a matter of law are a public forum forpurposes of 425.16(e)(3).Ampex Corp. v. Cargle, 128 Cal.App.4th 1569 (2005).

The Court of Appeal held:

When [Defendant] decided in August 2001 to join theconversation about the fortunes of Ampex, he did so by

posting messages on the Yahoo! message board forAmpex. The question here is whether such postings weremade in a public forum, traditionally defined as a placethat is open to the public where information is freelyexchanged. (ComputerXpress, Inc. v. Jackson, supra, 93

Cal.App.4th at p. 1006.) The term public forum includesforms of public communication other than those occurringin a physical setting. Thus the electronic communicationmedia may constitute public forums. Web sites that areaccessible free of charge to any member of the publicwhere members of the public may read the views andinformation posted, and post their own opinions, meet thedefinition of a public forum for purposes of section 425.16.(ComputerXpress, Inc. v. Jackson, supra, at p. 1007.) Thusthe Yahoo! message board maintained for Ampex was a

public forum.Id. at 1576; emphasis added.

Ninth Circuit cases interpret public forum under 425.16(e)(3) to include

websites. (See, Troy Group, Inc. v. Tilson, 364 F.Supp.2d 1149, 1153 (2005).)

Thus, Appellants met their burden under 425.16(e)(3) on its public forum

component.

Appellants alleged statements were made in connection with an issue of

public interest.... as required by 425.16(e)(3). This language is interpreted

broadly.Annette F., supra, 119 Cal.App.4th at 1160. Under California law, to

constitute or concern a public issue, the involved conduct must either impact a

broad segment of society or affect a community in a manner similar to that of a

governmental entity.Damon,supra, 85 Cal.App.4th at 479. Appellants alleged

statements, all made in furtherance of the political dissident movement and its



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Birther component, certainly impact a broad segment of society by stirring

important public debate regarding the qualifications of highest political leaders to

hold office as well as generate considerable media coverage. This broad segment

includes, but is not limited to, thousands of adherents of the Birther Movement,as well as millions who follow media coverage of such political debate.

The Court of Appeal inRivero v. AFL-CIO, 105 Cal.App.4th 913, 923

(2003) surveyed cases interpreting the meaning public interest under the anti-

SLAPP statute and held that covers a broad range of protected conduct:

None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subjectstatements either concerned a person or entity in the public

eye (see Sipple, supra, 71 Cal.App.4th at p. 239["nationally known figure"]; Church of Scientology, supra,42 Cal.App.4th at p. 651 [extensive "media coverage"];Seelig, supra, 97 Cal.App.4th at pp. 807-808 [discussion of

participant in "a television show of significant interest tothe public and the media"]), conduct that could directlyaffect a large number of people beyond the direct

participants (Damon, supra, 85 Cal.App.4th 468; Ludwig,supra, 37 Cal.App.4th 8; Dowling, supra, 85 Cal.App.4th1400; Church of Scientology, supra, 42 Cal.App.4th at pp.650-651) or a topic of widespread, public interest (seeM.G., supra, 89 Cal.App.4th at p. 629).Rivero,supra, 105Cal.App.4th at 924.

Appellants clearly engaged in protected conduct in connection with an

issue of public interest.... as required by 425.16(e)(3). Taitz as well as Berg are

nationally known figure[s] as discussed in Sipple, supra, 71 Cal.App.4th at 239.

The political issues in discussion, most notably the goals of the Birther

Movement, generate extensive media coverage as discussed in Church of

Scientology v. Wollersheim, 42 Cal.App.4th 628, 651 (1996), disapproved on other

grounds inEquilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, (2002).

Such movement, and the underlying controversy arising out of Plaintiffs attempts

to silence Appellants political speech, inherently concern a topic of widespread,



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public interest as discussed inM.G. v. Time Warner, Inc., 89 Cal.App.4th 623,

629 (2001).

Moreover, Appellants speech at issue qualifies for the highest protections

of the First Amendment. The right to speak on political matters is thequintessential subject of the constitutional protections of the right of free speech,

and public discussion about the qualifications of those who hold or who wish to

hold positions of public trust presents the strongest possible case for applications

of the safeguards afforded by the First Amendment.Matson, supra, 40

Cal.App.4th at 548. "Public discussion about the qualifications of those who hold

or who wish to hold positions of public trust presents the strongest possible case

for applications of the safeguards afforded by the First Amendment." ' [Citations.]"

Damon, supra , 85 Cal.App.4th at 479.

At its heart, this case concerns the activities of the political dissident

movement including the Birther Movement, involving public discussions

challenging the qualifications of President Obama to hold the highest office in the

United States. This case directly implicates control over that movement,

particularly as to crucial fundraising activities, including over its primary method

to achieve its goals, litigation challenging President Obamas qualifications. It

presents the strongest possible set of facts squarely presenting free speech and

petition activity protectedper se under 425.16(e)(3).Thus, the District Courts

conclusion that Appellants failed to make a prima facie showing that the acts

complained of fall into any of those four categories of 425.16(e) is clearly

erroneous under 425.16(e)(3). [1 ER, 8.]



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d. Appellants allegedly engaged in any other conduct

in furtherance of the exercise of the constitutional

right of petition or the constitutional right of free

speech in connection with a public issue or an issue ofpublic interest as required by section 425.16(e)(4)

Appellants alleged statements qualify as conduct in furtherance of the

exercise of the constitutional right of petition or the constitutional right of free

speech in connection with a public issue or an issue of public interest under

425.16(e)(4)for the same reasons, explained above, that they are protected activity

per se under 425.16(e)(3).

The meaning and application of public interest under 425.16(e)(4) is the

same as that under 425.16(e)(3). Tuchscher,supra, 106 Cal.App.4th at 1233. As

discussed above, this case presents the strongest possible set of facts squarely

presenting free speech and petition activity protectedper se under 425.16(e)(4).

Thus, the District Courts conclusion that Appellants failed to make a prima facie

showing that the acts complained of fall into any of those four categories of

425.16(e) is clearly erroneous under 425.16(e)(4). [1 ER, 8.]



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III.

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 AppellantsA. 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)(1)

Review of the issues discussed in this Section III are governed by the de

novo standard. Thomas,supra, 126 Cal.App.4th at 624-625.Tuchscher,supra, 106

Cal.App.4th at 1232.

A plaintiffs burden under the second prong of 425.16(b)(1) is two-fold:

"[T]he plaintiff 'must demonstrate that the complaint is bothlegally sufficientand

supported by a 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; emphasis added. Rosenaur,supra, 88 Cal.App.4th at 274.

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 favorablejudgment if the evidence submitted by the plaintiff is credited. Taus v. Loftus, 40

Cal.4th 683, 713-714 (2007).



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Plaintiffs admitted that they did not satisfy this first requirement of their

burden:

The second prong is whether the Plaintiffs havedemonstrated a probability of prevailing on the claim.

Plaintiffs agree they must amend their Complaint to bringit in compliance with the California Laws. [1 ER, 125: 5-8;emphasis added.]

Under Ninth Circuit law, "[j]udicial admissions are formal admissions in the

pleadings which have the effect of withdrawing a fact from issue and dispensing

wholly with the need for proof of that fact."American Title Ins. Co. v. Lovelaw

Corp., 861 F.2d 224, 226 (9th Cir. 1988).

Plaintiffs judicial admission in their opposition that they did not satisfy

their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their

Complaint required, as a matter of law, that the anti-SLAPP 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. The District Court ignored this essential

component of Plaintiffs burden; the Court held Plaintiffs have sufficiently made

a prima facie showing of facts that would, if proved, support a judgment in their

favor. [ER, 8.] This holding expresses a logical impossibility; without possessing

a legally sufficient Complaint, Plaintiffs could not make a prima facie showing of

facts [to]... support a judgment in their favor.

In the parlance of the anti-SLAPP law, and its two-pronged test for an

opposing partys burden under 425.16(b)(1), Plaintiffs had to first demonstrate

that the complaint is... legally sufficient before the Court could reach the issue

of whether Plaintiffs made a prima facie showing of facts to sustain a favorablejudgment.... Taus,supra, 40 Cal.4th at 713-714.



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The District Court impermissible bypassed the first prong of this test, and

focused exclusively (and improperly) only on the second prong. [1 ER, 8.]

By analogy, the Courts disregard of Plaintiffs burden under the first prong

of this test, after they made a judicial admission of the insufficiency of theComplaint, is similar to a Court considering the merits of a complaint in the face

of a plaintiffs admission that its complaint is barred by a statute of limitations.

Once such a dispositive judicial admission is made, no further inquiry is necessary

or allowed.

Neither the anti-SLAPP statute nor case law decided under it permit a Court

to bypass a plaintiffs burden under the first prong of this test. The Court failed to

consider the legal sufficiency of the Complaint, admitted by Plaintiffs to be

insufficient, and thus as a matter of law committed reversible error.

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)(1)

a. Plaintiffs Count One, for Violation of the First

and Fourteenth Amendment [sic] of the United States

Constituion [sic], is legally insufficient

Plaintiffs' first claim has no legal basis. [2 ER, 311-316.] The Fourteenth

Amendment cannot apply to private conduct. Shelley, supra, 334 U.S. at 13. The

First Amendment does not apply to private conduct either.Rendell-Baker, supra,

457 U.S. at 837. 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 jumbled smorgasbord of various

California, Pennsylvania and federal statutes. [2 ER, 314-315.] None of these laws

support Plaintiffs claim. For example, California Civil Code section 1798 et seq.



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(California's Information Practices Act of 1977) requiresgovernment agencies to

protect the privacy of personal information maintained by state agencies. See,

Civil Code 1798.3(a) and1798.45, andMeister v. Regents of University of

California, 67 Cal.App.4th 437, 446 (1998). Plaintiffs cannot state a claim againstAppellants under California's Information Practices Act of 1977 where they are

not a governmental "agency" as defined under such Act. Moreover, 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 Complaint states no

sufficient claim under California law.

Appellants are not subject to the Pennsylvania Privacy Acts cited in the

Complaint where they are not residents or citizens of the State of Pennsylvania,

but instead residents and citizens of the State of California. [1 ER, 256.]

None of the federal statutes cited in the first claim support the claim. For

example, 18 U.S.C. 2510-22 are criminal law statutes not providing for civil

remedies.

b. Plaintiffs Count Two, for DefamationPer 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 Appellants 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.



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The insufficiency of Plaintiffs second 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 inestablishing their failure to satisfy their burden under 425.16(b)(1) to

demonstrate the legal sufficiency of their second claim.Matson, supra, 40

Cal.App.4th at 548. Rosenaur,supra, 88 Cal.App.4th at 274.

c. Plaintiffs Count Three, for False-Light Invasion

of Privacy, is legally insufficient

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



Co.,supra, 861 F.2d at 226. Plaintiffs judicial admission is dispositive in

establishing their failure to satisfy their burden under 425.16(b)(1) to

demonstrate the legal sufficiency of their third claim.Matson, supra, 40


d. Plaintiffs Count Four, for Harassment, is legally

insufficient as well as not being a legally-cognizable

claimPlaintiffs 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



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would be based on California law. California Code of Civil Procedure section

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 asufficient claim under California law.

The insufficiency of Plaintiffs fourth claim is demonstrated in detail in





demonstrate the legal sufficiency of their fourth claim.Matson, supra, 40


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 orservices, or any container for goods, uses in commerce anyword, term, name, symbol, or device, or any combinationthereof, or any false designation of origin, false ormisleading description of fact, or false or misleadingrepresentation of fact....

Plaintiffs fail to allege any facts in this claim that Appellants 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



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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 oninterstate 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 Appellants, nor that Appellants engaged in any unscrupulous

commercial conduct.

Thus, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to

demonstrate the legal sufficiency of their fifth claim.Matson, supra, 40


e. 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 Appellants anti-SLAPP motion and supportingpapers, Plaintiffs failed to state any sufficient claim upon which their sixth claim

could be based.



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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.The insufficiency of Plaintiffs sixth claim is demonstrated in detail in





demonstrate the legal sufficiency of their sixth claim.Matson, supra, 40


B. Plaintiffs did not meet their burden under section 425.16(b)(1) to

present competent and admissible evidence sufficient to sustain a

judgment in their favor on the Complaint

Taitz submits the following argument without waiving, and with a full

reservation of, her above argument that Plaintiffs failed to satisfy their burden

under 425.16(b)(1) where they admitted that the Complaint was legally

insufficient. A plaintiffs burden under 425.16(b)(1) includes to make a prima

facie showing via competent and admissib

Documents

LIBERI v TAITZ (APPEAL - 9th CIRCUIT) - APPELLANT'S (TAITZ) OPENING BRIEF - TransportRoom.10-1