Liberi v Taitz - Plaintiffs Opposition to Intelius MTD Doc 390

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    Liberi, et al, Plaintiffs Opp. To Intelius MTD 09.23.2011 1

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    Philip J. Berg, EsquirePennsylvania I.D. 9867

    LAW OFFICES OF PHILIP J. BERG

    555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531

    Telephone: (610) 825-3134E-mail:[email protected] Attorney in pro se and for Plaintiffs

    UNITED STATES DISTRICT COURT

    FOR THE CENTRAL DISTRICT OF CALIFORNIA,

    SOUTHERN DIVISION

    LISA LIBERI, et al,

    Plaintiffs,

    vs.

    ORLY TAITZ, et al,

    Defendants.

    :::

    :::::::::::::

    ::::

    CIVIL ACTION NUMBER:

    8:11-cv-00485-AG (AJW)

    PLAINTIFFS OPPOSITION TO

    DEFENDANT INTELIUS, INC.S

    MOTION TO DISMISS, DOCKET

    NO. 380

    Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.

    Location: Courtroom 10D

    Plaintiffs, by and through their undersigned counsel, Philip J. Berg, Esquire

    file the within Response in Opposition; Memorandum of Points and Authorities

    and Declarations in Opposition to Defendant, Intelius, Inc.s [Intelius] Motion to

    Dismiss [MTD]. In support hereof, Plaintiffs aver the following:

    Intelius has filed manufactured (newly created) documents with the

    Declaration of Benjamin Nelson;

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    Liberi, et al, Plaintiffs Opp. To Intelius MTD 09.23.2011 2

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    Intelius has destroyed and spoiled evidence pertaining to this case by

    deleting accounts; deleting searches on the Plaintiffs; deleting actual

    reports sold on the Plaintiffs; and creating reports which they falsely

    claim are the products sold;

    Intelius is a Credit Reporting Agency and bound by the Fair Credit

    Reporting Act [FCRA]; California's Consumer Credit Reporting

    Agency Act [CCRAA]; and Investigative Consumer Reporting

    Agencies Act [ICRAA] as outlined on their website in several

    places and in their submission to the United States Securities and

    Exchange Division;

    Intelius is not immune by the Communications Decency Act, 47 U.S

    230, et. Seq. [CDA] and the CDA does not pertain to the within

    action;

    Intelius has deleted the account of Plaintiff Lisa Ostella and deleted

    the reports that were run on her;

    Intelius has failed to address the two (2) letters sent to them by

    Plaintiff Lisa Liberi regarding the incorrect and wrong information

    maintained on Plaintiff Lisa Liberi;

    Intelius admits in their MTD and Declaration of Benjamin Nelson that

    more reports were sold to unauthorized individuals than Plaintiffs

    were aware of;

    Plaintiffs have not incorporated into their Complaint Intelius Terms

    of Service and/or Frequently Asked Questions; and

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    Liberi, et al, Plaintiffs Opp. To Intelius MTD 09.23.2011 3

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    Intelius fails to uphold their own Terms of Service filed with

    Benjamin Nelsons Declaration.

    1. Defendant Orly Taitz [Taitz] as an attorney threatened to take Philip

    J. Berg, Esquire [Berg] down and to do so she stated she was going to destroy

    his paralegal, Plaintiff Lisa Liberi [Liberi] and get rid of her. Taitzs threat was

    due to Liberi refusing to assist Taitz in her litigation, which Liberi later learned

    was a scam. During this same time, Plaintiff Lisa Ostella [Ostella] told Taitz to

    find another web master as Ostella refused to lie and substantiate Taitzs false

    statements of hacking.

    2. This case is not about in-fighting; it is not about President Obama

    nor do the Plaintiffs and Defendants have histories of working together, except for

    Taitz and Ostella for a very short few months.

    3. In or about April 2009, Taitz as an Attorney and a Dentist through the

    Law Offices of Orly Taitz [L.O.O.T.], Orly Taitz, Inc., and as President of

    Defend our Freedoms Foundations, Inc. [DOFF] hired or sought Neil Sankey,

    Todd Sankey, Sankey Investigations, Inc., The Sankey Firm [Sankey

    Defendants] to obtain very private data of Liberi and Ostella; and to conduc

    illegal background checks; obtain credit and financial data and obtain other very

    private information of Liberi and Ostella.

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    4. The private data obtained by the Sankey Defendants and Taitz from

    Intelius was Liberi and Ostellas Social Security numbers; dates of birth; places of

    birth; fathers names; relatives names; siblings names; addresses; unlisted phone

    numbers; childrens names; spouses names, spouses dates of birth; spouses Social

    Security numbers; financial records; credit reports; medical records; Sealed Court

    information; and other primary identifying information. In fact, Plaintiff Liber

    does not own real estate, yet the Reed Defendants and Defendant Intelius supplied

    Plaintiff Liberis home address and Liberi and Ostellas unlisted phone numbers.

    5. It was later learned that Taitz and the Sankey Defendants utilized

    LexisNexis, ChoicePoint, Accurint [the Reed Defendants] and Defendant

    Intelius to obtain Plaintiffs Ostella and Liberis private data.

    6. Defendant Yosef Taitz is the hands-on CEO of Daylight. Mr. Taitz

    was involved with the design of Daylights programs, software and hardware. Mr

    Taitz and Daylights toolkits provide programming interface applications which

    are built into the design and used with Oracle. The design allows for remote

    application execution, cross site scripting, remote interface and injection attacks

    which are vulnerabilities that Oracle, Daylight and Mr. Taitz were aware of.

    7. Defendants Yosef and Orly Taitz used their expertise with the

    Daylight tools and Oracle flexibilities to access Intelius databases, where they also

    obtained Plaintiffs Liberi and Ostellas private data. Mr. Taitz in his Motion to

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    Dismiss in his individual capacity stated he could not be held liable as an

    damages caused to the Plaintiffs would be the responsibility of Defendant Daylight

    Chemical Systems, Inc.

    8. Intelius claims they cannot be held liable since their system wa

    hacked. Intelius had a duty to ensure their data maintained on their databases

    was at all-time maintained secure. Intelius also had a duty to uphold their own

    promises to the public found on their website that they have security specialists

    ensuring their IT systems were and are maintained securely.

    9. Defendants Taitz; DOFF; L.O.O.T., have admitted in Court filings

    that they obtained Plaintiffs private data directly from the Sankey Defendants; the

    Reed Defendants and Defendant Intelius. See DOFFs Motion to Dismiss [MTD]

    filed July 11, 2011, appearing as Docket No. [DN] 283; Orly Taitzs MTD filed

    July 11, 2011, DN 280; and L.O.O.T.s MTD filed September 14, 2011, DN 376

    and their Amended MTD filed September 16, 2011, DN 377. Taitz stated that the

    Sankey Defendants, Reed Defendants and Defendant Intelius, Inc. are responsible

    for Plaintiffs damages. Taitz also published all over her website that she obtained

    the private data from LexisNexis, ChoicePoint and Intelius. See DN 190 through

    190-27 filed May 20, 2011.

    10. In Intelius MTD they claiming Plaintiffs have failed to state a claim

    in which relief can be granted. Intelius claims they only supply public records, that

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    they are notbound by the Fair Credit Reporting Laws [F.C.R.A.]; the California

    Credit Reporting Agencies Act [CCRAA]; or the California Investigative

    Consumer Reporting Agencies Act [ICRAA], because they are not a Consumer

    Reporting Agency, which clearly is not the case. In support thereof, they filed a

    Declaration from Intelius, Inc.s custodian of Records, Benjamin Nelson.

    11. Intelius attempts to use Ruben Nieto and the Spokeo search run on

    Mr. Nietos email address as a comparison to what they sold the Defendants

    herein. There is no comparison. Plaintiffs did not seek or obtain Mr. Nietos

    Social Security number, date of birth, home address or other private data. The

    Spokeo report was far different than the information sold by Intelius on the

    Plaintiffs.

    12. Benjamin Nelson [Nelson] attached as Exhibit 3 a TalentWise

    report on Lisa Liberi. Although, Intelius states all through their MTD that they

    only provided information on the name Lisa Liberi and not that of Plaintiff Liberi

    which makes absolutely no sense, Nelsons Exhibit 3 clearly shows it is a report

    specifically on Plaintiff Lisa Liberi as it contains Liberis full Social Security

    number, address and date of birth.

    13. In addition, the accurate background report Liberi pulled on herself

    Intelius Background Report No. 30897400 only contains information pertaining to

    Plaintiff Lisa Liberi and no other name of Lisa Liberi.

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    14. Plaintiffs Opposition is based upon their Opposition, the attached

    Memorandum of Points and Authorities in Support hereof; Declarations of Philip J

    Berg, Esquire; Lisa Liberi; and Lisa Ostella filed concurrently herewith; Plaintiffs

    Opposition and Objections to Intelius Request for Judicial Notice; 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, Plaintiffs respectfully request

    this Court to Deny Defendant Intelius, Inc.s Motion to Dismiss. In the alternative

    Plaintiffs Request Leave to Amend their Complaint.

    Respectfully submitted,

    Dated: September 23, 2011 /s/ Philip J. Berg

    Philip J. Berg, EsquirePennsylvania I.D. 9867LAW OFFICES OF PHILIP J. BERG

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

    Attorney in Pro Se and Counsel fo

    Plaintiffs

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    i

    TABLE OF CONTENTS

    Page(s)

    TABLE OF CONTENTS....i-ii

    TABLE OF AUTHORITIES.iii-viii

    I. STANDARD OF REVIEW ......1-2

    II. DECLARATION OF BENJAMIN NELSON

    CONTAINS FALSE STATATEMENTS and

    MANUFACTURED DOCUMENTS

    III. INTELIUS FURNISHED CONSUMER

    IV. THE COMMUNICATIONS DECENCY ACT,

    47 U.S.C. 230 DOES NOT APPLY to the

    WITHIN ACTION....6-8

    V. INTELIUS IS A CREDIT REPORTING

    AGENCY BY THEIR OWN ADMISSIONS;PLAINTIFFS 12

    thTHROUGH 16

    thCAUSES OF

    ACTION WILL PREVAIL:....8-11

    VI. INTELIUS HAS DESTROYED and

    SPOILED EVIDENCE..11-12

    VII. INTELIUS HAD A DUTY TO REINVESTIGATE

    THE WRONG INFORMATION THEY HAD

    ON PLAINTIFFS and CORRECT PLAINTIFFSFILES ACCORDINGLY...12-14

    VIII. PLAINTIFFS NON-FCRA CLAIMS are NOT

    PREEMPTED AND INTELIUS MISQUOTED and

    MISINTERPRETED THE STATUTE THEY are

    CITING..14-15

    MEMORANDUM OF POINTS AND AUTHORITIES..1-25

    REPORTS ON LIBERI and OSTELLA...........................................5-6

    :..................................2-5

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    TABLE OF CONTENTS - Continued

    Page(s)

    IX. PLAINTIFFS 1st THROUGH 3rd CAUSE

    A. Plaintiffs 1st Cause of Action

    Willful and Intentional Intrusionupon Plaintiffs Solitude, Seclusion and

    B. Plaintiffs Second Cause of Action, PublicDisclosure of Private Facts is Properly Pled

    against Intelius..19

    C. Plaintiffs 3rd Cause of Action False Light

    Invasion of Privacy...19

    X. PLAINTIFFS 5th, 6th and 17th CAUSE OF

    ACTION WILL PREVAIL...19-20

    XI. PLAINTIFFS 8th CAUSE OF ACTION...20-21

    XII. PLAINTIFFS 9th and 19th CAUSE OF ACTION..21-22

    XIII. PLAINTIFFS 18th CAUSE OF ACTION,

    UNFAIR BUSINESS PRACTICES..23-24

    XIV. PLAINTIFFS 20th CAUSE OF ACTION,RES IPSA LOQUITOR.24-25

    XV. CONCLUSION...25

    Private Affairs - Invasion of Privacy...16-18

    OF ACTIONS.....15-19

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    TABLE OF AUTHORITIES

    CASES Page(s)

    ABC Internat. Traders, Inc. v Matsushita Electric Corp., (1997)

    Ashcroft v. Iqbal, (2009) 129 S.Ct. 1937, 173 L.Ed.2d 868 (... 1, 2

    Bank of the West v. Superior Court, (1992)

    Barnes v. Yahoo!, Inc.,570 F.3d 1096 (9th Cir.2009)...7

    Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,167 L.Ed.2d 929 (2007).2

    Brown v. Poway Unified School Dist., (1993)4 Cal.4th 820, 825826 [15 Cal. Rptr. 2d 679, 843 P.2d 624]24

    Byrne v. Boadle, (1863) 159 Eng. Rep. 29924

    Carafano v. Metrosplash.Com. Inc., 339 F.3d 1119 (9th Cir. 2003)........7

    Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,(1999) 20 Cal.4th 163, 181 [83 Cal. Rptr. 2d 548, 973 P.2d 527]..23

    Christensen v. Superior Court, (1991)

    54 Cal. 3d 868 [2 Cal. Rptr. 2d 79].22

    Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120

    Fair Housing Council of San Fernando Valley v. Roommates, Com, LLC

    Garcia v. UnionBancal Corp.,

    2 Cal.4th 1254, 1266 [10 Cal. Rptr. 2d 538, 833 P.2d 545]....23

    14 Cal.4th 1247, 1270 [61 Cal. Rptr. 2d 112, 931 P.2d 290].......23

    Dennis v. BEH-I, LLC, 520 F.3d 1066 (9th Cir.2008)...14

    [118 Cal. Rptr. 2d 240] (3d Dist. 2002)..22

    521 F.3d 1157, 1167-68 (9th Cir.2008)...................................................................7

    2006 WL 2619330 (N.D. Cal. Sept. 12, 2006)...12

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    TABLE OF AUTHORITIES - Continued

    CASES Page(s)

    Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...21

    Goddard v. Google,No. C 08-2738 JF (PVT),2008 WL 5245490 (N.D. Cal. Dec. 17, 2008)..7

    Gorman v. Wolpoff & Abramson, LLP,

    584 F.3d 1147, 1157 (9th Cir. 2009).14, 15

    Guillory v. Godfrey, 134 Cal. App. 2d 628[286 P.2d 414] (2d Dist. 1955)21

    Hall v. Time Inc., (2008) 158 Cal.App.4th 847, 852 [70 Cal. Rptr.3d 466]23

    Hassoldt v. Patrick Media Group, Inc.,

    84 Cal. App. 4th 153 [100 Cal. Rptr. 2d 662] (2d Dist.2000).22

    Hill v. National Collegiate Athletic Assn. (1994)7 Cal. 4

    th1, [26 Cal. Rptr. 2d 834]..15, 17, 18

    International Federation of Professional & Technical Engineers,

    Local 21, AFL-CIO v. Superior Court, (2007)

    42Cal.4th 319, 338 [64 Cal. Rptr. 3d 693, 165 P.3d 488].....17, 18

    Jennifer M. v. Redwood Women's Health Ctr.,(2001) 88 Cal.App. 4th 81 ..20

    Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843,

    23 L.Ed.2d 404 (1969)...1

    Kasky v. Nike, Inc., (2002) 27 Cal.4th 939, 949[119 Cal. Rptr. 2d 296, 45 P.3d 243]...23

    Kinsey v. Macur, (1980) 107 Cal. App. 3d 264 [165 Cal. Rptr. 608].18

    Leibert v. Transworld Systems, Inc., 32 Cal. App. 4th

    1693

    [39 Cal. Rptr. 2d 65] (1st

    Dist. 1995)...15

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    TABLE OF AUTHORITIES - Continued

    CASES Page(s)

    Levy-Zentner Co. v. Southern Pac. Transportation Co., (1977)

    74 Cal.App.3d 762...14

    Lucas v. Dep't of Corr., 66 F.3d 245 (9th Cir.1995).2

    Lugtu v. California Highway Patrol(2001)26 Cal.4th 703, 716 [110 Cal. Rptr. 2d 528, 28 P.3d 249]..16

    Mendiondo v. Centinela Hosp. Med. Ctr.,

    521 F.3d 1097 (9th

    Cir. 2008)1

    Neary v. Regents of University of California,

    185 Cal. App. 3d 1136 [230 Cal. Rptr. 281] (1st Distr. 1986)....21

    Ochoa v.Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr. 661]22

    Operating Engineers Local 3 v. Johnson,

    Pioneer Electronics (USA), Inc. v. Superior Court, (2007)

    40 Cal.4th 360, 370 [53 Cal. Rptr. 3d 513, 150 P.3d 198]..17

    Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th 96522

    Reno v. American Civil Liberties Union (1997) 521 U.S. 844,117 S.Ct. 2329, 138 L.Ed.2d 874..6, 7

    Ross v. Creel Printing & Publishing Co.,

    100 Cal. App. 4th 736 [122 Cal. Rptr. 2d 787] (1st Dist. 2002)..22

    Schulz v. Neovi Data Corp., (2005) 129 Cal. App. 4th 124

    110 Cal. App. 4th 180 [1 Ca. Rptr. 3d 552] (1st Dist. 2003)...19

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    TABLE OF AUTHORITIES - Continued

    CASES Page(s)

    Schwartz v. Thiele, 242 Cal. App. 2d 799

    [51 Cal. Rptr. 767] (2d Dist. 1966)..15, 18

    Shahinian v. McCormick, (1963) 59 Cal.2d 554.24

    Smith v. Los Angeles Bookhinders Union No. 63,133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955).21

    Smith v. National Broadcasting Co.,138 Cal. App. 2d 807807 (2nd Dist. 1956)...15, 16

    Spackman v. Good, (1966) 245 Cal. App. 2d 518 [54 Cal. Rptr. 78]..21

    State Rubbish CollectorsAssn v. Siliznoff, (1952)

    38 Cal. 2d 330 [240 P. 2d 282]....22

    Tarasoff v. Regents of University of California (1976)17 Cal.3d 425, 434435 [131 Cal. Rptr. 14, 551 P.2d 334]16

    Taus v. Loftus, (2007) 40 Cal. 4th 683 [54 Cal. Rptr. 3d 775]18

    Timperley v. Chase Collection Service,

    272 Cal. App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969)..18

    Witriol v. LexisNexis Group,2006 WL 1128036 (N.D.Cal. Apr 27, 2006)...20

    Ybarra v. Spangard, (1944) 25 Cal.2d 486, 489 [154 P.2d 687]24

    FEDERAL STATUTES Page(s)

    15 U.S.C. 1681g14

    15 U.S.C. 1681(h).14

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    vii

    TABLE OF AUTHORITIES - Continued

    FEDERAL STATUTES Page(s)

    15 U.S.C. 1681i.14

    15 U.S.C. 1681i(a)(1)(A)...13

    15 U.S.C. 1681 i(a)(4)...13

    15 U.S.C. 1681 i(a)(6)-(7).13

    15 U.S.C. 1681m...14

    15 U.S.C. 1681n..14, 15

    15 U.S.C. 1681o..14, 15

    47 U.S.C. 230..6

    47 U.S.C. 230(c)(1).7

    47 U.S.C. 230(f)(2)..7

    STATE STATUTES Page(s)

    Business and Professions Code17200, et. seq.... 23, 24

    California Civil Code 1798, et seq...11

    FEDERAL RULES OF CIVIL PROCEDURE Page(s)

    Federal Rules of Civil Procedure 12(b)(6)1

    Federal Rules of Evidence, 646 Subd. (b)...24

    15 U.S.C. 1681(h)(e)....14, 15

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    TABLE OF AUTHORITIES - Continued

    MISC. Page(s)

    6A Cal. Jur. 3d, Assaults and Other Willful Torts 153 (2003)..21

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    Liberi, et al, Plaintiffs Brief in Support of their Opp to Intelius MTD 09.23.2011 1

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    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) 825-3134E-mail:[email protected] Attorney in pro se and for Plaintiffs

    UNITED STATES DISTRICT COURT

    FOR THE CENTRAL DISTRICT OF CALIFORNIA,

    SOUTHERN DIVISION

    LISA LIBERI, et al,

    Plaintiffs,

    vs.

    ORLY TAITZ, et al,

    Defendants.

    :::::

    :::::::::

    CIVIL ACTION NUMBER:

    8:11-cv-00485-AG (AJW)

    PLAINTIFFS MEMORANDUM OF

    POINTS AND AUTHORITIES

    Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D

    I. STANDARD OF REVIEW:

    1. Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate only where the

    Complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal

    theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For

    purposes of a Motion to Dismiss [MTD], the Plaintiff's allegations are taken as true, and the

    Court must construe the Complaint in the light most favorable to the Plaintiffs. Jenkins v

    McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). To survive a motion

    to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

    claim to relief that is plausible on its face. A claim has facial plausibility when the Plaintiff

    pleads factual content that allows the court to draw the reasonable inference that th

    Defendant is liable for the misconduct alleged.Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173

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    L.Ed.2d 868 (2009),Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167

    L.Ed.2d 929 (2007). Leave to Amend must be Granted unless it is clear that the Complaint's

    deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th

    Cir.1995).

    II. DECLARATION OF BENJAMIN NELSON CONTAINS FALSE

    STATATEMENTS and MANUFACTURED DOCUMENTS:

    2. Benjamin Nelson [Nelson] states he is the Custodian of Records for

    Defendant Intelius, Inc. [Intelius] and has been for approximately six [6] years. Nelson

    includes eight [8] Exhibits which purport to be genuine.

    3. Nelson claims they maintain every search that has ever been run on any

    individuals name. Nelson states according to Intelius records, the only Defendant in this

    case to have ever conducted a search on Lisa Liberi was Orly Taitz on April 12, 2009. See

    Nelsons Declaration, pg. 2, 5. This completely contradicts Taitz, the Sankey Defendant

    and a witness of Plaintiffs, Charles Edward Lincoln, III, testimony. And, Nelson contradicts

    himself in his own Declaration. Nelson attaches as Exhibit 1 to his declaration the generic

    search he claims Orly Taitz conducted on Plaintiff Liberi. The names associated with

    Nelsons Exhibit 1 do not come up when searching Intelius, Inc. See the Declaration of

    Lisa Liberi at pg. 4, 9 and EXHIBIT E attached to Liberis Declaration.

    4. Nelson states Liberi conducted a search on herself on April 10, 2010, almost a

    year after Taitz supposedly conducted her search. Nelson attaches as Exhibit 2 the

    supposed report obtained by Liberi. SeeNelson Decl. at pg. 3, 6.

    5. Nelsons Exhibit 2 is NOT the report purchased and/or obtained by Liberi

    In fact, it is far different. See the actual report purchased by Liberi, Intelius Report No

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    30897400 with the receipt from Intelius attached to Lisa Liberis Declaration as EXHIBIT

    A. See also Liberis Declaration at pgs 1-2, 1-2. The Reports attached by Nelson as

    Exhibits 1 and 2 contains Plaintiff Liberis physical home address; and Liberis previous

    Intelius reports did not contain her physical address.

    6. Nelson claims Intelius is not a Consumer Credit Agency and they only sell

    generalized public information on a name and not a specific person. Nelson attached as

    Exhibit 3 to his Declaration a TalentWise Report on Liberi that Liberi purchased

    Nelsons Exhibit 3 contains Liberis full Social Security number and date of birth, which

    has been blackened out by Nelson. SeeNelsons Exhibit 3.

    7. Nelson next inputs some Terms and Conditions which he claims you mus

    accept and agree to; and that they claim Intelius reports are not bound by the Fair Credi

    Reporting Act [F.C.R.A.]. These are not the Terms and Conditions Liberi was required to

    accept and acknowledge. See the Declaration of Lisa Liberi at pg 3, 6. In fact, the terms and

    conditions of the reports obtained by Liberi state they are governed by the F.C.R.A. See

    EXHIBIT C attached to Lisa Liberis Declaration.

    8. Nelson and Intelius claim Plaintiffs incorporated Intelius Terms and

    Conditions and Frequently Asked Questions that are attached as Exhibits 4 and 8 into

    their First Amended Complaint. This is not true as the Terms and Conditions are far

    different than what Plaintiffs had to agree to and there is no reference as to the Frequently

    Asked Questions:. See the declaration of Lisa Liberi at pg. 3, 6.

    9. Nelson states that Neil Sankey had an Intelius account, that Sankey did not run

    any searches on Liberi and Sankey did not open his account until November 2009. This is

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    impossible. Taitz and Sankey himself admitted to using Intelius. Further, Sankey was

    conducting interviews at the end of 2008 and beginning of 2009 stating he used LexisNexis,

    ChoicePoint, Jobs.com and Intelius, Inc., all of which is on file with this Court with the

    original lawsuit and original requests for protective orders.

    10. To further show the dishonesty of Mr. Nelson, he next states that Lisa Ostella

    never had an account with Intelius. This is far from the truth. See the Declaration of Lisa

    Ostella and a copy of Lisa Ostellas account information with Intelius showing she opened

    her Intelius account in December 2008, see Lisa Ostellas Declaration at pg. 3, 8-9 and

    EXHIBIT 1 attached to Lisa Ostellas Declaration. Intelius recently cancelled Lisa

    Ostellas account.

    11. Mr. Nelson talks about a letter sent by Mr. Berg on behalf of Lisa Liberi. Mr

    Nelson makes no mention of Lisa Ostella, who this same letter also pertained to. To show

    the disregard Intelius has on Plaintiffs private data, Intelius failed to redact Plaintiff Liberis

    Social Security number, date of birth, address, spouses name, spouses Social Security

    number, spouses date of birth and other private data from their Exhibit 5 of Nelsons

    Declaration. SeeNelsons Exhibit 5.

    12. Nelson states no one ever ran a report on Lisa Ostella. Untrue. See Ostellas

    Declaration at pg. 3-4, 10, 12. Ostella ran a report on herself. See EXHIBIT 2 attached

    to Lisa Ostellas Declaration.

    13. Nelson states Intelius sent a letter to Ostella in response to a letter they received

    from her. Nelson states they explained in order for her to obtain who performed searches on

    her, she would need a Subpoena or Court Order. Ostella never received this supposed letter

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    from Intelius, see Lisa Ostellas Declaration at pg. 6, 20. Nelson attached Ostellas letter to

    Intelius as Exhibit 6 without redacting any personal information. When writing to Intelius

    you are required to supply certain confidential information, which Nelson has now published.

    14. The Declaration of Benjamin Nelson should notbe used or considered by the

    Court, nor should his Exhibits. The Exhibits are not a true depiction of the reports previously

    purchased by Liberi. The reports purchased by Liberi were not only public record

    information; and they pertained solely to Liberi herself. Nelson was dishonest in his

    testimony to this Court. Ostella does and did have an account with Intelius; a report had been

    purchased on Ostella and the reports purchased on the Plaintiffs contained very confidential

    information, including dates of birth, home addresses, Social Security numbers and other

    private data as shown on the actual reports.

    III. INTELIUS FURNISHED CONSUMER REPORTS ON LIBERI and

    OSTELLA

    15. Intelius claims they did not furnish a consumer report on any of the

    Plaintiffs. Intelius statement is contradicted by their own Exhibits provided by Nelson. In

    particular, Nelsons Exhibit 3. Liberi obtained a TalentWise report, which is a Consumer

    report governed by the F.C.R.A. Liberi and Ostella both purchased reports which were

    specific to Plaintiff Lisa Liberi and Lisa Ostella, and only contained information specific to

    them. See Liberis Decl at pgs1-2, 1, and EXHIBIT A attached to Lisa Liberis

    Declaration. See also Lisa Ostellas Declaration at pg. 4 14 and EXHIBIT 2 attached to

    Lisa Ostellas Declaration.

    16. Moreover, according to Intelius October 2009 United States Securities and

    Exchange Commission [SEC] filing, Intelius was under investigation by the Federal Trade

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    Commission [FTC] to ensure they were complying with the F.C.R.A. and other rules

    governing the sale of private data.

    17. This is also confirmed in Intelius Security statement that states they are in

    18. Intelius claims they are immune by the Communications Decency Act, 47

    service and Plaintiffs in their FAC claim Intelius is a publisher or speaker of information

    Intelius states they only publish information maintained by third parties. [Intelius MTD, Pgs

    10-12]. This is very creative of Intelius to say the least, but, their arguments fail.

    19. Intelius is a commercial data broker by their own admissions on their website

    and in media articles, who purchase private information on individuals from LexisNexis

    ChoicePoint, Accurint and other data brokers and resells the information to the general

    public. Intelius isnot an interactive website as defined by the CDA. This lawsuit against

    Intelius is about Intelius selling Plaintiffs private data to parties who did not have a

    permissible or legal purpose to obtain it, which allowed Taitz and the other Defendants to

    publish Plaintiffs private information and carry out their threats and injure the Plaintiffs.

    20. Intelius is not a newsgroup or bulletin board; it is not a service publisher or an

    interactive computer service. Reno v. American Civil Liberties Union (1997) 521 U.S. 844

    851, 117 S.Ct. 2329, 138 L.Ed.2d 874. Nor does the CDA apply as outlined by Intelius.

    NOT APPLY to the WITHIN ACTION:

    U.S. 230, et. Seq. [CDA]. Intelius claims to be a provider of an interactive computer

    IV. THE COMMUNICATIONS DECENCY ACT, 47 U.S.C. 230 DOES

    7; Lisa Liberi at pg. 3, 5; and Lisa Ostella at pgs. 4-5, 15.

    fact a Credit Reporting Agency. See the Declarations of Philip J. Berg, Esquire at pg. 3 ,

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    21. Section 230(c)(1) refers directly to the user of an interactive computer

    service. Section 230(f)(2) defines interactive computer service as any information

    service, system, or access software provider that provides or enables computer access by

    multiple users to a computer server, including specifically a service or system that

    provides access to the Internet.... [emphasis added] Carafano v. Metrosplash.Com. Inc.

    339 F.3d 1119 (9th Cir. 2003). None of which apply to Intelius, Reno v. American Civi

    Liberties Union (1997) 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874.).

    22. The term "information content provider" for purposes of the Act, means any

    person or entity that is responsible, in whole or in part, for the creation or development of

    information provided through the Internet or any other interactive computer service. 47

    U.S.C.A. 230(f)(3), Fair Housing Council of San Fernando Valley v. Roommates, Com

    LLC (Roommates), 521 F.3d 1157, 1167-68 (9th Cir.2008).

    23. The provider of an interactive computer service allowing users within a

    particular "community" to post profiles and communicate with each other was a

    "information content provider," partly responsible for the creation or development of a false

    profile of an actress created by a third party, and thus was not entitled to immunity under the

    Communications Decency Act, Carafano v. Metrosplash.Com. Inc., 339 F.3d 1119 (9th Cir

    2003). A website/blog owner/operator becomes liable as an information content provider

    when they contribute to its alleged unlawfulness, 521 F.3d at 1167-68. See also Barnes v

    Yahoo!, Inc., 570 F.3d 1096, 1106 (9th

    Cir.2009); Goddard v. Google, No. C 08-2738 JF

    (PVT), 2008 WL 5245490 (N.D.Cal. Dec. 17, 2008).

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    24. Intelius does not have immunity under the CDA, 47 U.S.C. Section 230, et. seq

    For the reasons stated herein, this Court must Deny Intelius Motion.

    V. INTELIUS IS A CREDIT REPORTING AGENCY BY THEIR OWN

    ADMISSIONS; PLAINTIFFS 12

    th

    THROUGH 16

    th

    CAUSES OF ACTIONWILL PREVAIL:

    25. Intelius claims in their MTD on page 12 that Plaintiffs Twelfth through

    Sixteenth Causes of Action fail because they are not a consumer reporting agency.

    26. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174; and pgs

    127-142, 335-380, as if fully set forth here at length.

    27. Intelius states on their website at http://www.intelius.com/corp/security, See

    Intelius recognizes the sensitivity surrounding many of its applications and the data

    they rely on. As such, Intelius' information security policy addresses security at all

    levels: personnel, technology and operations.

    Intelius follows the highest industry standards for protecting personallyidentifiable information such as Personal Names, Social Security Numbers and

    Credit Card Numbers

    Intelius is a certified credit reporting agency.

    Compliance:

    We devote tremendous time and resources to assure that we have the best data

    available, configured to your needs. We've contracted with multiple redundant data

    sources so you can be confident that Intelius' information is as accurate as possible.

    Our technologies all meet the standards of compliance required in the following

    federal acts:

    the Declaration of Philip J. Berg, Esquire, the following:

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    The Fair Credit Reporting Act (FCRA) sets forth guidelines regarding criminal

    checks for tenant and pre-employment screening. Intelius is a certified credit

    reporting agency and can help insure you are compliant with current regulations and

    updates as they happen...

    28. Intelius states Taitz obtained the same report as Liberi did. That the reports

    Liberi and Taitz obtained were a simple background search on only the name Lisa Liberi

    and not that of Plaintiff Liberi. Liberi purchased background reports through Intelius

    Enterprise division, as did Taitz. Intelius states on their website at

    http://www.intelius.com/corp/enterprise.

    We have the following comprehensive business solutions:

    FCRA-compliant screening services:

    Pre-employment screening

    Tenant Screening

    Intelius recognizes that you value your time, you're concerned about the bottom line,

    and you have unique information challenges. That's why our solutions are cost-

    effective and simple to establish, and Intelius' results are accurate, immediate and

    easy to understand.

    29. And, Intelius states in their October 19, 2009 SEC Report, Report S-1 located at

    http://ipo.nasdaq.com/edgar_conv_html%5C2009%5C10%5C19%5C0000950123-09-

    051082.html at the end of page 24 and beginning of page 25:

    Because we use personal information in providing our information services, we are

    subject to government regulation and vulnerable to adverse publicity. We provide

    See the Declarations of Philip J. Berg, Esquire; Lisa

    Ostella at pg. 5, 17; and Lisa Liberi at pg. 3, . Intelius states the following:

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    many types of data and services that already are subject to regulation under the

    FCRA, Gramm-Leach-Bliley Act, Drivers Privacy Protection Act and, to a lesser

    extent, various other federal, state and local laws and regulations. Violation of these

    laws or regulations may result in substantial fines, judgments and other penalties.

    These laws and regulations are designed to protect the privacy of the public and to

    prevent the misuse of personal information in the marketplaceMany states have

    enacted laws to protect personal information.

    30. Intelius claims Lisa Ostella does not have standing because they never sold any

    type of report on her, including a Consumer Report. This is not true. See the Decl. of Lisa

    Ostella at pg. 4, 12, 14 and EXHIBIT 2 attached to Lisa Ostellas Declaration. Intelius

    falsely claims the only search results provided on Liberi was a generic background check,

    which again is not true and contradicted by the reports attached in Nelsons Declaration,

    including the TalentWise report.

    31. Taitz has admitted receiving reports on Plaintiffs Ostella and Liberi from the

    Sankey Defendants, Reed Defendants and Intelius. See DOFFs MTD filed July 11, 2011

    DN 283; Taitzs MTD filed July 11, 2011, DN 280; and L.O.O.T.s MTD filed September 14,

    2011, DN 376 and their Amended MTD filed September 16, 2011, DN 377. Taitz stated that

    the Sankey Defendants, Reed Defendants and Defendant Intelius, Inc. are responsible for

    Plaintiffs damages. Taitz also published all over her website that she obtained the private

    data from LexisNexis, ChoicePoint and Intelius.

    32. Intelius states that searches performed on Plaintiffs were only general searches

    however, as can be seen by Nelsons Exhibit 3, which is a report on Liberi, it contains only

    Liberis name, address full Social Security number, date of birth, only information pertaining

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    to Lisa Liberi, Plaintiff herein and no other individual. Also, same goes for the actual

    background check Liberi performed on her, attached to Lisa Liberis Declaration with the

    receipt as EXHIBIT A, it only contains information pertaining to Plaintiff Lisa Liberi and

    not any other individual. Same goes for the report pulled on Lisa Ostella. See Lisa Ostellas

    Declaration EXHIBITS 2, it contains Ostellas name, address, and Social Security

    number. These are not generic reports as falsely claimed by Intelius.

    33. As can be seen by Intelius own statements on their website and with the

    United States Security and Exchange Commission, and Plaintiffs Exhibits attached hereto

    Intelius is in fact a Credit Reporting Agency and they are bound by the FCRA; CCRAA; the

    ICRAA, and Cal. Civ. Code 1798, et. seq. For these reasons, Intelius MTD must be Denied.

    VI. INTELIUS HAS DESTROYED and SPOILED EVIDENCE:

    34. Intelius has deleted the account of Lisa Ostella. See Ostella Decl. at pg3, 8-9,

    and EXHIBIT 1 attached to Lisa Ostellas Declaration. Ostellas account information

    shows opened in December 2008 and Ostella learned it had been deleted when she attempted

    to access her account in September 2011. Intelius also deleted all of Ostellas search details.

    35. Intelius has deleted all records pertaining to Plaintiff Lisa Liberi and submitted

    manufactured reports claiming those to be the reports received by Taitz and Liberi. This is

    not true as proven by Liberis Decl at pgs. 1-2, 1-2, and EXHIBITS A and B

    attached to Lisa Liberis Declaration, which is Liberis report she purchased, Intelius report

    number 30897400, that is completely different than the manufactured report provided by

    Nelson and Intelius attached as Exhibit 2 to Nelsons Declaration. Intelius cannot furnish

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    the proper reports purchased by Liberi, Ostella, and/or obtained by Defendants Taitz, Yosef

    Taitz and the Sankey Defendants, as they have destroyed and deleted them.

    36. To further prove the deletions by Intelius, if you run the name Lisa Liberi in the

    State of California or New Mexico, nothing returns, and if you run Lisa Liberi nationwide

    all you receive is two [2] Lisa Liberis one in PA and the other in FL. See the Declaration of

    Lisa Liberi at pg. 4, 9 and EXHIBIT E attached to Lisa Liberis Declaration. Not even

    the report manufactured by Mr. Nelson and/or Intelius filed as Exhibits 1 and 2 come up.

    37. Intelius then claims on page 17 of their MTD that Plaintiffs cannotprove their

    cause of actions 12 through 16 because they cannot produce the credit reporting agency

    reports obtained on them. Intelius cites Garcia v. UnionBancal Corp., 2006 WL 2619330 at

    *2 (N.D. Cal. Sept. 12, 2006), which is inapposite. Garcia is about a Bank employees brief

    case which contained some customers private data; the brief case was then stolen. The bank

    was not a credit reporting agency, nor did it pertain to any type of consumer report. Plaintiffs

    have provided the reports they have received as well as Defendant Taitz and the Sankey

    Defendants own statements, testimony and filings that they obtained Plaintiffs private data in

    reports they received from LexisNexis, ChoicePoint and Intelius.

    38. Liberi and Ostella have provided their reports as Exhibits attached hereto

    Intelius argument fails and their Motion must be Denied.

    VII. INTELIUS HAD A DUTY TO REINVESTIGATE THE WRONGINFORMATION THEY HAD ON PLAINTIFFS and CORRECT

    PLAINTIFFS FILES ACCORDINGLY:

    39. Intelius states they did not have a duty to reinvestigate the wrong information

    they maintained on Plaintiffs Ostella and Liberi. Intelius claims that Ostella did not even

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    attempt to bring forth the wrong information Intelius maintained on her and that Bergs letter

    stating there were inaccuracies in Liberis file was inadequate. [Intelius MTD pg. 18].

    40. Mr. Bergs letter addressed Plaintiffs, Liberi and Ostella. Ostella did bring

    forth that Intelius maintained an incorrect birth date for her and other incorrect information

    See Philip J. Berg, Esquires letter to Intelius attached to Nelson Declaration as Exhibit 5.

    41. Intelius fails to mention the letter sent to them on November 1, 2010 directly

    from Plaintiff Lisa Liberi. Liberis letter was sent priority mail with delivery confirmation

    0309-3220-0001-9214-5504. See the Declaration of Lisa Liberi, pg. 3, 7 and EXHIBIT D

    attached to Lisa Liberis Declaration. Every piece of incorrect information contained on

    Liberi in her Intelius reports is outlined in Liberis letter. Although delivered, Intelius never

    responded to Liberi; failed to correct the wrong data; or sent her a corrected report.

    42. As our law holds, in order to trigger a credit agency's duty under the FCRA to

    investigate a claim of inaccurate information, a consumer must notify the agency of the

    purported reporting error, as Plaintiffs Ostella and Liberi have done. See 15 U.S.C. 1681

    i(a)(1)(A). Once a Credit Agency is notified of inaccurate information contained in a

    consumers file that is being disputed, the agency must reinvestigate the inaccuracies and

    record the status of the disputed information within 30 days, 15 U.S.C. 1681i(a)(1)(A). The

    FCRA contains provisions similar to those of the CCRAA with respect to consideration of all

    relevant materials submitted by the consumer, id. 1681 i(a)(4), and provision of a

    description of the procedure used to determine the accuracy and completeness of the disputed

    information, id. 1681 i(a)(6)-(7).

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    43. Plaintiffs have pled sufficient facts to support their 12th through 16th Cause of

    Actions. The FCRA's reinvestigation provision, 15 U.S.C. 1681i, does not on its face

    require that an actual inaccuracy exist for a Plaintiffs to state a claim, but Ostella and Liberi

    have outlined the inaccuracies in their Complaint and in letters to Intelius, they have met their

    burden and Intelius MTD must be Denied.Dennis v. BEH-I, LLC, 520 F.3d 1066 (9th Cir

    2008); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1157 (9th Cir. 2009).

    VIII. PLAINTIFFS NON-FCRA CLAIMS are NOT PREEMPTED AND

    INTELIUS MISQUOTED and MISINTERPRETED THE STATUTE

    THEY are CITING:

    44. Intelius on page 19 claims Plaintiffs non-FCRA claims are preempted pursuant

    to Section 1681h(e) of the F.C.R.A. 15 U.S.C. 1681(h) or 1681(h)(e) do notpertain to the

    within action.

    45. Plaintiffs incorporate by reference their FAC at pgs. 61-74, 144-174 and pgs

    127-137, 335-364.

    46. 15 U.S.C. 1681h(e) states in pertinent part:

    Except as provided in sections 1681n and 1681o of this title, no consumer may

    bring any action or proceeding in the nature of defamation, invasion of privacy, or

    negligence with respect to the reporting of information against any consumer

    reporting agency, any user of information, or any person who furnishes information

    to a consumer reporting agency, based on information disclosed pursuant to

    section 1681g, 1681h, or 1681m [emphasis added]

    47. 15 U.S.C. 1681g pertains to disclosure of the file to the consumer; 15 U.S.C

    1681h pertains to the conditions and disclosure to consumers whom the report relates; and

    15 U.S.C. 1681m pertains to the requirements of the users of the consumer reports. None of

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    which Plaintiffs are suing Intelius for. Plaintiffs are suing Intelius pursuant to 15 U.S.C

    Sections 1681n and 1681o. 15 U.S.C. 1681 h(e) does not apply to the within action or

    preempt Plaintiffs non-FCRA claims. See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d

    1147, 1165-67 (9th Cir. 2009) which is right on point.

    IX. PLAINTIFFS 1st

    THROUGH 3rd

    CAUSE OF ACTIONS

    48. Intelius claims that Plaintiffs 1st through 3rd Cause of Actions fail because

    Intelius did not invade Plaintiffs privacy. Intelius claims they never disclosed any

    information about Berg or Ostella and the only information they disclosed on Liberi was

    information as to the name Lisa Liberi and not Lisa Liberi the Plaintiff herein. Intelius

    contradicts their own statements with their own Exhibits. See also EXHIBITS A and B

    attached to Lisa Liberis Declaration and EXHIBIT 2 attached to Lisa Ostellas

    Declaration, which proves the reports sold on Liberi and Ostella were not of a name only

    but particular to Plaintiffs Liberi and Ostella herein.

    49. Plaintiffs incorporate by reference, the previous paragraphs 2 through 46 as

    if fully set forth here at length.

    50. Legally recognized privacy interests are generally of two [2] classes. The first

    is the interest in precluding the dissemination or misuse of sensitive and confidential

    information otherwise known as informational privacy.Hill v. National Collegiate Athletic

    Assn., (1994) 7 Cal. 4th

    1, [26 Cal. Rptr. 2d 834];Leibert v. Transworld Systems, Inc., 32 Cal

    App. 4th

    1693 [39 Cal. Rptr. 2d 65] (1st

    Dist. 1995). Informational privacy encompasses the

    right to be free from the wrongful publicizing of Plaintiffs private affairs and activities, which

    are outside of legitimate public concern. Smith v. National Broadcasting Co., 138 Cal. App

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    2d 807807 (2nd Dist. 1956), Schwartz v. Thiele, 242 Cal. App. 2d 799 [51 Cal. Rptr. 767] (2d

    Dist. 1966).

    51. As for Intelius statements that they are not responsible for the private data

    Yosef Taitz in his professional capacity as CEO of Defendant Daylight Information Systems

    Inc. [Daylight] obtained from their (Intelius) databases. To the contrary, pursuant to Cal

    Civ. Code 1714(a), as pled by Plaintiffs in their FAC at pg. 81, 198, Intelius had a duty to

    ensure all data they maintain on individuals is secure from intrusion, legal or otherwise. [A]s

    a general principle, a defendant owes a duty of care to all persons who are foreseeably

    endangered by his conduct, with respect to all risks which make the conduct unreasonably

    dangerous Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434435

    [131 Cal. Rptr. 14, 551 P.2d 334];see Civ. Code, 1714;Lugtu v. California Highway Patrol

    (2001) 26 Cal.4th 703, 716 [110 Cal. Rptr. 2d 528, 28 P.3d 249], and authorities cited).

    A. Plaintiffs 1st

    Cause of Action Willful and Intentional Intrusion upon

    Plaintiffs Solitude, Seclusion and Private Affairs - Invasion ofPrivacy:

    52. Plaintiffs incorporate by reference their FAC at pgs 61-74, 144-174 and

    pgs 78-83, 187-204 as if fully set forth here at length.

    53. Plaintiffs have sufficiently pled that their private data, including but not

    limited to address, names, spouses names, Social Security numbers, dates of birth, etc. was

    disseminated by Intelius to Defendants. Plaintiffs pled that Intelius disclosed their private

    data without any type of permissible purpose, verification, or authorization of Plaintiffs

    Plaintiffs pled that Intelius obtained their information from the Reed Defendants, without any

    type of permissible or legal purpose. Plaintiffs pled Intelius re-sold their private information

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    to third parties, including but not limited to Katrinka Lawson; Teresa Loggia; Julieana Choy;

    Taitz and the Sankey Defendants. By Intelius own admissions, they have disclosed Plaintiffs

    personal information numerous times to parties who had nopermissible purpose to obtain it

    All these individuals received reports specifically to Plaintiff Lisa Liberi, just as Liberi

    received on herself. SeeNelsons Declaration, Nelsons Exhibit 3 and EXHIBITS A and

    Declaration.

    54. All of which constitutes a serious invasion of privacy. The disclosure of a

    persons Social Security number, birth date, address (unless you own the property, you

    address is not public), unlisted telephone number; and other private data reflected in th

    reports attached as Exhibit 5 to Nelsons Decl. and in EXHIBITS A and B attached to

    Lisa Liberis Declaration and EXHIBIT 1attached to Lisa Ostellas Declaration.

    55. In Hill, supra, 7 Cal.4th 1, our Court considered the showing a person must

    make to state a violation of California's constitutional right to privacy. That decision made

    clear that the right of privacy protects the individual's reasonable expectation of privacy

    against a serious invasion. Pioneer Electronics (USA), Inc. v. Superior Court, (2007) 40

    Cal.4th 360, 370 [53 Cal. Rptr. 3d 513, 150 P.3d 198], citing Hill, supra, at pp. 3637.) As

    our Court summarized Hill's holding, The party claiming a violation of the constitutiona

    right of privacy established in article I, section 1 of the California Constitution must establish

    (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the

    circumstances, and (3) a serious invasion of the privacy interest.International Federation of

    Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, (2007) 42

    B attached to Lisa Liberis Declaration and EXHIBIT 2 attached to Lisa Ostella

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    Cal.4th 319, 338 [64 Cal. Rptr. 3d 693, 165 P.3d 488], citing Hill, supra, at pp. 3940. "A

    particular class of information is private when well-established social norms recognize the

    need to maximize individual control over its dissemination", like Plaintiffs Social Security

    numbers, dates of birth, spouses information, addresses, places of birth, credit data, financial

    data, etc., Hill7 Cal.4th 1, 35.

    B. Plaintiffs Second Cause of Action, Public Disclosure of Private Facts is

    Properly Pled against Intelius:

    56. Intelius states Plaintiffs 2nd Cause of Action for public disclosure of private

    facts fail because they did not disclose any private facts about Plaintiffs. This is contradicted

    by Intelius own statements as to who they furnished Liberis reports to and their Exhibit 3

    showing Liberis Social Security number, date of birth, address, name, only information

    specific to Plaintiff Liberi.

    57. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174 and pgs

    78-85, 187-214, as if fully set forth here at length.

    58. The elements of the tort of public disclosure of private facts are: (1) public

    disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the

    reasonable person, and (4) which is not of legitimate concern. Taus v. Loftus, (2007) 40 Cal

    4th

    683 [54 Cal. Rptr. 3d 775].

    59. Plaintiffs have met the elements required. Schwartz v. Thiele, 242 Cal. App. 2d

    799 [51 Cal. Rptr. 767] (2d Dist. 1966); Timperley v. Chase Collection, Service, 272 Cal

    App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969); Kinsey v. Macur, 107 Cal. App. 3d 264 [165

    Cal. Rptr. 608].

    //

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    C. Plaintiffs 3rd

    Cause of Action False Light Invasion of Privacy:

    60. Intelius states Plaintiffs 3rd

    Cause of Action fails because Plaintiffs failed to

    state any information Intelius published to any person which was false. Plaintiffs asserted

    that Intelius reports contained wrong names, wrong birth dates, wrong addresses; and wrong

    social security numbers; so it appeared Plaintiffs were using multiple identities. Taitz

    accused Liberi of using multiple names and Social Security numbers based on the report she

    received from Intelius and the Reed Defendants. Intelius, in their Exhibits 1 and 2 show

    Plaintiff Liberi being convicted in a criminal case that she was not convicted in.

    61. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174 and pgs

    78-90, 187-225, as if fully set forth here at length.

    62. Plaintiffs suffered damages, as pled in their Complaint, including but not

    limited to harassment, hospitalizations, damage to their reputation, loss of business, etc. and

    were exposed to hatred, contempt, ridicule, embarrassment, humiliation and obloquy.

    63. Plaintiffs have met their burden. False Light Invasion of Privacy, concerns

    ones piece of mind. Operating Engineers Local 3 v. Johnson, 110 Cal. App. 4th

    180 [1 Ca

    Rptr. 3d 552] (1st Dist. 2003).

    X. PLAINTIFFS 5th

    , 6th

    and 17th

    CAUSE OF ACTION WILL PREVAIL

    64. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174; pgs. 78-

    90, 187-225; at pgs 94-102 239-264; and at pgs. 142-149 381-389, as if fully set

    forth here at length.

    65. Intelius claims these cause of actions will fail because Intelius did not

    intentionally disclose information, not otherwise public [regarding Liberi or Ostella], which

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    knew or should have reasonably known was obtained from personal information maintained

    by a state agency or from records within a system of recordsmaintained by a federa

    government agency and therefore, Plaintiffs are not entitled to statutory damages per

    1798.85(a)(1), [Intelius MTD, pgs. 21, 22]. Intelius argument is contradicted by Nelsons

    Declaration admitting to all 3rd parties Liberis reports were submitted to. It is commo

    knowledge that Social Security numbers are handled by the Social Security Administration,

    etc.

    66. Intelius disclosed a report to Taitz and the Sankey Defendants which contained

    Liberis Social Security number and date of birth. Intelius states Taitz and Liberi obtained

    the same report, the actual reports Liberi received contained her Social Security number, so

    by Intelius own admissions, they violated Cal. Civ. Code Section 1798.85(a)(1), which states

    a person or entity may not communicate or make available to any third party, any ones

    Social Security numbers. The Sankey Defendants and Taitz admit to receiving Plaintiffs

    private data from the Reed Defendants and Intelius.

    67. Plaintiffs have met their burden. See the unreported opinion of Witriol v

    LexisNexis Group, 2006 WL 1128036 (N.D.Cal., Apr 27, 2006) quoting Jennifer M. v

    Redwood Women's Health Ctr., 88 Cal.App. 4th 81, 89 (Cal.Ct.App.2001). See also Cal. Civ

    Code 1798.53; 1798.85; and 1798.81.5(a).

    XI. PLAINTIFFS 8th

    CAUSE OF ACTION

    68. Plaintiffs incorporate by reference the previous paragraphs and their FAC at pgs

    61-74 144-174; and pgs. 111-118, 281-300, as if fully set forth here at length.

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    69. Intelius maintained incorrect information on the Plaintiffs so it appeared

    Plaintiffs were using more than one name, date of birth, and Social Security number, wrong

    dates of birth, wrong names and other incorrect data. The information in the reports provided

    by Intelius, were stated as fact, and did notpertain to a general name, e.g. Lisa Liberi. The

    reports provided by Intelius were specific to Plaintiffs Liberi and Ostella. Plaintiffs wil

    succeed on their Defamation claim, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

    Publication of a false statement means communication to some third person, in this case to

    the Sankey Defendants, Taitz, Katrinka Lawson; Teresa Loggia; Julieana Choy and others

    who understood the defamatory meaning of the statement and its application to the person to

    whom reference was made. Smith v. Los Angeles Bookhinders Union No. 63, 133 Cal. App

    2d 486 [286 P.2d 194] (2d Dist. 1955);Neary v. Regents of University of California, 185 Cal

    App. 3d 1136 [230 Cal. Rptr. 281] (1st Distr. 1986); 6A Cal. Jur. 3d, Assaults and Other

    Willful Torts 153 (2003).

    XII. PLAINTIFFS 9th and 19th CAUSE OF ACTION

    70. Plaintiffs incorporate by reference their previous paragraphs and FAC at pgs

    61-74 144-174; pgs. 78-90, 187-225; at pgs 118-122 301-314; and at pgs. 152-157

    398-416, as if fully set forth here at length.

    71. Intelius actions outlined herein and in Plaintiffs FAC caused Liberi and Ostella

    severe mental and emotional suffering and distress Intelius actions and inactions were

    intentional and outrageous conduct. Guillory v. Godfrey, 134 Cal. App. 2d 628 [286 P.2d

    414] (2d Dist. 1955); Spackman v. Good, (1966) 245 Cal. App. 2d 518 [54 Cal. Rptr. 78].

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    72. Intelius actions and inactions were extreme and outrageous invasion of

    Plaintiffs mental and emotional tranquility and were beyond all bounds of decency. State

    Rubbish Collectors Assn v. Siliznoff, (1952) 38 Cal. 2d 330 [240 P. 2d 282], Ochoa v

    Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr. 661].

    73. Intelius actions were intentional and reckless conduct with the intent to inflict

    injury and they engaged in the acts with the realization that injury would occur upon

    Plaintiffs. Plaintiffs suffered severe emotional distress and Plaintiff Liberi also suffered

    medical complications due to the severe emotional distress. Plaintiffs have fulfilled all the

    elements for recovery under their Ninth and Nineteenth Cause of Actions. Ross v. Cree

    Printing & Publishing Co., 100 Cal. App. 4th 736 [122 Cal. Rptr. 2d 787] (1st Dist. 2002);

    Hassoldt v. Patrick Media Group, Inc., 84 Cal. App. 4th 153 [100 Cal. Rptr. 2d 662] (2d Dist

    2000);Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120 [118 Cal. Rptr. 2d 240] (3d Dist

    2002); Christensen v. Superior Court, (1991) 54 Cal. 3d 868 [2 Cal. Rptr. 2d 79]. See also

    Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th 965 (The Court held under

    California law, if the defendant is guilty of "despicable conduct which is carried on by the

    defendant with a willful and conscious disregard of the rights or safety of others" then the bar

    is lowered).

    74. Intelius disregard for the Plaintiffs privacy and right to maintain their data

    private warrants damages for Negligent Infliction of Emotional Distress. See Ochoa v

    Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr.].

    //

    //

    //

    //

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    XIII. PLAINTIFFS 18th

    CAUSE OF ACTION, UNFAIR BUSINESS

    PRACTICES

    75. Plaintiffs incorporate by reference their FAC at pages 149-151, 390-397 as if

    fully set forth here at length.

    76. Intelius systematic violation of the FCRA, CCRAA, ICRAA and IPA, as

    alleged in Plaintiffs FAC, coupled with their unlawful invasion of Plaintiffs Privacy Rights

    and other wrongful conduct re-alleged herein and in Plaintiffs FAC, reveals a pattern and

    practice of unfair, unlawful and fraudulent business practices in violation of Californi

    Business & Professions Code 17200, et. seq.

    77. The Unfair Competition Law [UCL] prohibits, and provides civil remedies

    for, unfair competition, which it defines as any unlawful, unfair or fraudulent business act or

    practice. 17200. Its purpose is to protect both consumers and competitors by promoting

    fair competition in commercial markets for goods and services. Kasky v. Nike, Inc., (2002)

    27 Cal.4th 939, 949 [119 Cal. Rptr. 2d 296, 45 P.3d 243]; See Hall v. Time Inc., (2008) 158

    Cal.App.4th 847, 852 [70 Cal. Rptr.3d 466]. In service of that purpose, the Legislature

    framed the UCL's substantive provisions in broad, sweeping language Cel-Tech

    Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal.4th

    163, 181 [83

    Cal. Rptr. 2d 548, 973 P.2d 527]; See also Bank of the West v. Superior Court, (1992) 2

    Cal.4th 1254, 1266 [10 Cal. Rptr. 2d 538, 833 P.2d 545] [The Legislature intended this

    sweeping language to include anything that can properly be called a business practice and

    that at the same time is forbidden by law. ] and provided courts with broad equitable

    powers to remedy violationsABC Internat. Traders, Inc. v Matsushita Electric Corp., (1997)

    14 Cal.4th 1247, 1270 [61 Cal. Rptr. 2d 112, 931 P.2d 290].

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    78. Plaintiffs have satisfied the requirements ofCal. Business and Professions

    th

    XIV. PLAINTIFFS 20th

    CAUSE OF ACTION, RES IPSA LOQUITOR:

    79. Under the theory of Res Ipsa Loquitur, Plaintiffs must show that: (1) the cause

    of the injury is of a kind that does not occur ordinarily in the absence of someone's

    negligence; (2) the injury was caused by an instrumentality within the exclusive control of the

    Defendant or of a third party for whose conduct the defendant is legally responsible; and (3)

    that the injury was not due to any voluntary action or contribution on the part of appellants.

    See Shahinian v. McCormick, (1963) 59 Cal.2d 554, 559; see also Levy-Zentner Co. v

    Southern Pac. Transportation Co., (1977) 74 Cal.App.3d 762, 777-780.

    80. The Res Ipsa Loquitor rule provides an illustration. The doctrine shifts the

    burden of producing evidence so that Plaintiffs may bring tort claims even if they lack

    specific proof that their injury was caused by negligence of a particular Defendant. See

    Ybarra v. Spangard, (1944) 25 Cal.2d 486, 489 [154 P.2d 687]; Byrne v. Boadle, (1863) 159

    Eng. Rep. 299, 300, as cited in Brown v. Poway Unified School Dist., (1993) 4 Cal.4th 820

    825826 [15 Cal. Rptr. 2d 679, 843 P.2d 624]. In California, the doctrine of Res Ipsa

    Loquitor is defined by statute as a presumption affecting the burden of producing evidence.

    Evid. Code, 646, subd. (b).) (Ibid.; See Ybarra v. Spangard, supra, 25 Cal.2d 486, 489

    quotingProsseron Torts.)

    81. Intelius had a duty to ensure that Sankey Defendants, Taitz, Katrinka Lawson

    Teresa Loggia; Julieana Choy and others had a legal right to obtain Plaintiffs reports

    Code 17200, et seq. and the requirements outlined in Schulz v. Neovi Data Corp., (2005)

    129 Cal. App. 4 1.

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    Intelius also had a duty to properly communicate and reinvestigate the incorrect information

    they maintained on Liberi and Ostella. Instead, Intelius simply ignored the letters and refused

    to adhere to their requirements under the FCRA. And, since suit has been filed against them

    they have destroyed and spoiled evidence, deleted Ostellas account; deleted all searches and

    actual reports purchased and provided on Liberi and Ostella.

    82. Plaintiffs have met their burden, Intelius Motion must be Denied.

    VIII. CONCLUSION:

    83. For the reasons outlined herein, Defendant Intelius, Inc. Motion to Dismiss

    must be Denied. In the alternative, Plaintiffs Request to Amend their Complaint.

    Respectfully submitted,

    Dated: September 23, 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

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    Declaration of Philip J. Berg, Esquire 1

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    Philip J. Berg, Esquire (PA I.D. 9867)E-mail:[email protected]

    LAW OFFICES OF PHILIP J. BERG

    555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531

    Telephone: (610) 825-3134 Fax: (610) 834-7659Attorney in pro se and for Plaintiffs

    UNITED STATES DISTRICT COURT

    FOR THE CENTRAL DISTRICT OF CALIFORNIA,

    SOUTHERN DIVISION

    LISA LIBERI, et al,

    Plaintiffs,

    vs.

    ORLY TAITZ, et al,

    Defendants.

    :

    ::::::::::::::

    CIVIL ACTION NUMBER:8:11-cv-00485-AG (AJW)

    DECLARATION OF PHILIP J.

    BERG, ESQUIRE

    Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D

    DECLARATION OF PHILIP J. BERG, ESQUIRE

    I, Philip J. Berg, Esquire, am over the age of 18 and am a party to the within

    action. I have personal knowledge of the facts herein, and if called to do, I could

    and would competently testify. I am making this Declaration under the penalty of

    perjury of the Laws of the United States pursuant to 28 U.S.C. 1746.

    1. I am an Attorney in good standing, licensed to practice law in the

    Commonwealth of Pennsylvania. I am licensed to practice in the U.S. District

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    Courts, Middle and Eastern District of Pennsylvania; Third Circuit Court of

    Appeals; the Pennsylvania Supreme Court; and the U.S. Supreme Court.

    2. Intelius with their Motion to Dismiss [MTD] has filed a Declaration

    from Benjamin Nelson [Nelson] who claims to be the Custodian of Records for

    the past six [6] years.

    3. Nelson states that I sent a letter on behalf of Plaintiff Lisa Liberi

    [Liberi] and dealt with incorrect information they have on file for my client. My

    letter, as demonstrated by Nelsons Exhibit 5 also pertained to Plaintiff Lisa

    Ostella [Ostella] and dealt with incorrect information Intelius maintains on her.

    4. Nelson also states they are not a Consumer Credit Reporting

    Agency and they are not required to comply with the Fair Credit Reporting Act

    [FCRA]. To the contrary, I located several locations on Intelius website, that

    you can access by going to www.intelius.com that states they are a Consumer

    Credit Reporting Agency and comply with the FCRA as well as other State and

    Federal laws.

    5. On file with the United States Security Exchange [SEC] is Intelius

    October 19, 2009 Form S-1 Registration and located at

    http://ipo.nasdaq.com/edgar_conv_html%5C2009%5C10%5C19%5C0000950123-

    09-051082.html. Intelius states on pages 24 and 25 in their report to the SEC:

    Because we use personal information in providing our information

    services, we are subject to government regulation and vulnerable to

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    adverse publicity. We provide many types of data and services thatalready are subject to regulation under the FCRA, Gramm-Leach-

    Bliley Act, Drivers Privacy Protection Act and, to a lesser extent,various other federal, state and local laws and regulations. Violation

    of these laws or regulations may result in substantial fines, judgmentsand other penalties.

    These laws and regulations are designed to protect the privacy of the

    public and to prevent the misuse of personal information in themarketplace.

    6. Intelius repeats that they are a Consumer Reporting Agency and

    follows the FCRA in their enterprise agreement located on their website at

    http://www.intelius.com/enterpriseagreement.php. In this agreement, Intelius

    states numerous times they are a consumer reporting agency governed by the

    FCRA.

    7. Intelius repeats they are a Consumer and Credit Reporting Agency in

    their Security and compliance statements located on their website at

    http://www.intelius.com/corp/security. In this publication by Intelius, they state:

    Intelius recognizes the sensitivity surrounding many of its

    applications and the data they rely on. As such, Intelius' informationsecurity policy addresses security at all levels: personnel, technology

    and operations.

    Intelius is a certified credit reporting agency.

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    8. And, in Intelius TalentWise Agreement located at

    https://www.talentwise.com/terms.html, Intelius again confirms they are governed

    by the FCRA because they are a Consumer Reporting Agency:

    DUE TO THE SENSITIVE AND HIGHLY REGULATEDNATURE OF THE DATA AND INFORMATION YOU AND

    YOUR ORGANIZATION WILL GAIN ACCESS TOTHROUGH INTELIUS SCREENING SOLUTIONS LLC

    (d/b/a "TALENTWISE") Intelius Screening Solutions LLC(d/b/a "TalentWise") is a consumer reporting agency and

    provides consumer reports and investigative consumer reports("Screening Reports") as defined by the Fair Credit Reporting

    Act ("FCRA")

    9. The statements of Mr. Nelson are not accurate. I also have copies of

    the background checks conducted on Plaintiff Lisa Liberi. Each background report

    Mrs. Liberi obtained from Intelius and U.S. Search contained her full Social

    Security number, date of birth, name, address, spouses name and other information

    identified to her. The reports obtained by Mrs. Liberi were not generalized

    searches of only a name.

    10. Mr. Nelson states Defendant Orly Taitz obtained the same report as

    Lisa Liberi. With this, Mr. Nelson has confirmed and substantiated Plaintiffs

    allegations against Intelius. The reports Mrs. Liberi obtained were reports

    governed by the FCRA as they were classified by Intelius as Consumer Reports

    and that is the same Report obtained by Orly Taitz and Neil Sankey on Mrs. Liberi

    as stated in Mr. Nelsons Declaration.

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    11. The reports attached to Mr. Nelsons Declaration as Exhibit 1 and

    2 are not the same reports obtained by Mrs. Liberi.

    12. I am very concerned with the fact Intelius has spoiled evidence and

    deleted evidence. This is very prejudicial to my clients. All evidence should have

    been preserved by Intelius a