LIBERI v TAITZ (C.D. CA) - 283.0 - NOTICE OF MOTION AND MOTION to Dismiss Case filed by efndant...

8/6/2019 LIBERI v TAITZ (C.D. CA) - 283.0 - NOTICE OF MOTION AND MOTION to Dismiss Case filed by efndant DEFEND OUR

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NTC. OF MOT. AND MOT. BY TAITZ TO DISMISS THE 1ST

THROUGH 11TH

CAUSES OF

ACTION IN PLAINTIFFSFIRST AMENDED COMPLAINT PURSUANT TO CCP 425.16AND FRCP RULE 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES

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Dr. Orly Taitz, ESQ

29839 Santa Margarita pkwy, ste 100

Rancho Santa Margarita CA 92688

Attorney for "Defend our Freedoms" Foundation

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIASOUTHERN DIVISION

TO THE COURT, ALL PARTIES, AND/OR THEIR ATTORNEYS OF

LISA LIBERI and PHILIP J. BEG,

ESQUIRE and THE LAW OFFICES OFPHILIP J. BERG and EVELYN ADAMSa/k/a MOMMA E and LISA M. OSTELLAand GO EXCEL GLOBAL,

Plaintiffs,vs.

ORLY TAITZ, a/k/a DR. ORLY TAITZ,a/k/a LAW OFFICES OF ORLY TAITZ;a/k/a ORLY TAITZ, INC. and DEFENDOUR FREEDOMS FOUNDATIONS,INC. and YOSEF TAITZ and THE

SANKEY FIRM and SANKEYINVESTIGATIONS, INC. and NEILSANKEY and JAMES SUNQUIST andROCK SALT PUBLISHING and LINDASUE BELCHER a/k/a LINDA S.BELCHER a/k/a LINDA STARR; a/k/aNEWWOMENSPARTY a/k/aSTITCHENWITCH a/k/a EVA BRAUNa/k/a WEB SERGEANT a/k/a KATY a/k/aWWW.OBAMACITIZENSHIPDEBATE.ORG and EDGAR HALE a/k/a JDSMITH; and CAREN HALE; and PLAINSRADIO NETWORK, a/k/a PLAINS

RADIO NETWORK, INC. a/k/a PLAINSRADIO; and BAR H FARMS; and KPRNAM 1610; and DOES 1 through 200Inclusive,

Defendants.

CASE NO. 8:11-cv-00485-AG (AJW)

NOTICE OF MOTION AND MOTIONBY DEFENDANT "DEFEND OURFREEDOMS FOUNDATION" TODISMISS THE 1

ST, 2

ND, 3

RD, 4

TH, 5

TH,

6TH

, 7TH

, 8TH

, 9TH

, 10TH

AND 11TH

CAUSES OF ACTION INPLAINTIFFS FIRST AMENDEDCOMPLAINT PURSUANT TOFEDERAL RULES OF CIVILPROCEDURE RULE 12(B)(6) and12(b)1; MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT

THEREOF

Date: August 8, 2011Time: 10:00 a.m.Dept.: Crtrm 10D

Judge: Andrew J. GuilfordMagistrate Judge: Robert N. BlockTrial Date: June 5, 2012

Complaint Filed: May 4, 2009

Case 8:11-cv-00485-AG -AJW Document 283 Filed 07/11/11 Page 1 of 32 Page ID#:6825


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2NTC. OF MOT. AND MOT. TO DISMISS THE 1

STTHROUGH 11

THCAUSES OF ACTION

IN PLAINTIFFSFIRST AMENDED COMPLAINT PURSUANT FRCP RULE 12(B)(6);MEMORANDUM OF POINTS AND AUTHORITIES

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RECORD:

PLEASE TAKE NOTICE that on August 8, 2011, at 10:00 a.m., or as soon

thereafter as the matter may be heard by the above-entitled Court, located in Courtroom

10D of the United States District Court, Central District of CaliforniaSouthern Division,

411 W. Fourth St., Santa Ana, CA 92701-4516, Defendant "Defend Our Freedoms"

foundation (DOFF) will move this Court for an order dismissing the 1st, 2nd, 3rd, 4th, 5th,

6th, 7th, 8th, 9th, 10th and 11thcauses of action in Plaintiffs first amended complaint

pursuant to Federal Rules of Civil Procedure Rule 12(b)(6) and 12(b)(1). Specifically,

DOFF moves the Court for an order of dismissal of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th,

10th

and 11th

causes of action in Plaintiffs first amended complaint pursuant to Federal

Rules of Civil Procedure Rule 12(b)(6) and 12(b)(1) because Plaintiffs did not prove

diversity and Liberi's state citizenship by competent evidence and all of the causes of

action in Plaintiffs first amended complaint fail to state a claim for which relief can be

granted, concern conduct for which immunity is granted by 47 U.S.C. section 260, and

which is privileged under California Civil Code section 47.

In conformance with the Courts order dated June 14, 2011, on June 27, 2011,

counsel for Defendants requested leave to file a motion to dismiss based upon California

Code of Civil Procedure section 425.16 and Federal Rules of Civil Procedure Rule

12(b)(6). On June 29, 2011, the Court granted the request for leave to file a motion to

dismiss based upon Rule 12(b)(6) but denied the request for leave to file a motion to

dismiss based upon California Code of Civil Procedure section 425.16.

This motion is based on this notice of motion and motion; the memorandum of

points and authorities attached hereto; the request for judicial notice; all of the pleadings

and papers on file; any matter that may be presented in reply to any opposition filed by

Plaintiff; and on any other matter that may be presented to the Court at the time of the

hearing.

TABLE OF CONTENTS



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TABLE OF AUTHORITIES...........................................................................................................P3

1. THIS WHOLE COMPLAINT FAILS AND HAS TO BE DISMISSED UNDER FRCP

12(B)1.............................................................................................................................................P7

JURISDICTION IS ALWAYS BEFORE THE COURT AND THE COURT HAS ADUTY TO

DISMISS A CASE, WHERE IT HAS NO JURISDICTION..........................................................P8

ALL CAUSES OF ACTION AGAINST "DEFEND OUR FREEDOMS FOUNDATION"

NEED TO BE DISMISSED UNDER 12(B)(6)

1. THE STANDARD FOR RULE 12(B)(6) MOTIONS

THE COMMUNICATIONS DECENCY ACT IMMUNIZES TAITZ AND DOFF FROM

LIABILITY ARISING FROM PUBLICATION OR REPUBLICATION OF INFORMATION

RECEIVED FROM ANOTHER INFORMATION CONTENT

PROVIDER...................................................................................................................................P15

PLAINTIFFS' 1, 2, 3, 4, 8 AND 9TH CAUSES OF ACTION ARE BARRED BY

PRIVILEGE AFFORDED BY CALIFORNIA CIVIL CODE SECTION

47...............................................................................................................................................P19

LIBERI HAS FAILED TO STATE FACTS SUFFICIENT TO STATE A CLAIM TO

SUPPORT THE 10TH CAUSE OF ACTION FOR MALICIOUS PROSECUTION BECAUSE

PLAINTIFFS HAVE FAILED TO ALLEGE ANY ACTIONABLE "PRIOR

ACTION"....................................................................................................................................P22

LIBERI HAS FAILED TO STATE FACTS SUFFICIENT TO STATE A CLAIM TO

SUPPORT THE 11TH CAUSE OF ACTION FOR ABUSE OF PROCESS BECAUSE NO

"PROCESS" RESULTED FROM THE ALLEGEDLY IMPROPER MOTION.........................p.24

LIBERI AND OSTELLA HAVE FAILED THEIR 7TH CAUSE OF ACTION FOR

CYBER STALKING BECAUSE THEY HAVE NOT ALLEGED A CREDIBLE THREAT

INTENDING TO PLACE PLAINTIFF IN REASONABLE FEAR............................................p25

PLAINTIFFS FAILED TO ALLEGE FACTS SUFFICIENT TO SUSTAIN THEIR 5TH

CAUSE OF ACTION..................................................................................................................p26

PLAINTIFFS FAILED TO ALLEGE SUFFICIENT FACTS TO SUSTAIN THEIR 6TH CAUSE



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OF ACTION AND MADE UP A BOGUS STATUTORY 3 BILLION DOLLAR PENALTY BY

CITING REMEDY FROM A WRONG, INAPPLICABLE STATUTE 1798.84, WHILE SUING

UNDER STATUTE 1798.85.......................................................................................................P28

TABLE OF AUTHORITIES

Kantor v Wellesley Galleries, 1td 704 F2d 1088, 1092 (9th cir

1983)..........................................................p8

Vacek v United states postal service 447 F3d 1248, 1250 (9th cir

2006)..........................................................p8

Kokkonen v Guardian life insur. Co. of Am 511 US. 375, 377

(1994).........................................................p8

Gould Electronics v United States, 220 F. 3d 169, 176 (3d Cir

2000)......................................................... p8

Packard v Provident National Bank , 994 F. 2d 1039, 1045 (3d cir

1993)...................................................... ...p9

J & R Ice Cream corp. v. California Smoothie Licensing, 31 F. 3d

1259, 1256 n.3 (3rd cir1994)...................................p9

Joiner v Diamond M Drilling Co., 677 F. 2d 1035, 1039 (5th Cir

1982)..........................................................p9

Weight v Kawasaki Motors Co (1985, ED Va) 604 F supp 968......p10

Roche v Lincoln Prop. Co. (2004, CA4 Va) 373 F3d 610..........p10

Bautista v Pan American World Airlines, Inc (1987, CA 9 Cal) 828,



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F2d 546, 126 BNA LRRM 2559, 107 CCH LC P 10159................p10

Olsen v Quality Continuum Hospice (2004, DC NM) 380 F. Supp 2d

1225..........................................................p10

McMann v. Doe (2006, DC Mass) 460 F Supp 2d...................p11

Olsen v Quality continuum Hospice, Inc (2004, DC NM) 380 F. Supp

2d 1225 ......................................................p11

Filla v Norfolk & Southern Ry (2003. CA8 Mo) 336 F3d 806......p11

Shahmoon Industries, Inc & Imperato (1964, CA3 NJ) 338 F2d 449, 9

FR Serv 2d 12B22, Case 2......................................p11

Jeter v Jim Walter Homes (1976, WD Okla) 414 F Supp 791.259...p12

Iqbal v Ashcroft 129 S Ct at 1949.............................p14

Twombly v Bell Atlantic 550 U.S. at 570.......................p14

De la Cruz v Tormey(9th Cir.1978) 582 F. 2d 45, 48............p14

SEC v. Cross Fin'l Services, Inc(CD CA 1995) 908 F. Supp. 718-727

(quoting text)................................................p14

Beliveau v Caras(CD CA 1995)873 F.Sipp.1393,1395(citing Text).p14

United States v White (CD CA 1995)1893 F. Supp1423, 1428(citing

text).........................................................p14

Bissessur v. Indiana Univ. Bd of Trustees (7th Cir 2009) 581 F3d

599, 03)......................................................p14

Weisbuch v County of Los Angeles (9th Cir. 1997) 119 F. 3d 778,

783, fn. 1....................................................p15

Hensley MFG v Propride, inc (6th Cir.2009) 579 F. 3d 603, 613.p15

Hearn v R.J. Reynolds Tobacco Co (D AZ 2003) 279 F. Supp 2d 1096,

1102 (citing Text) ...........................................p15

Bender v. Suburban Hosp., inc (4th Cir 1998)159F.3d 186, 192..p15

Leveto v Lapina (3rd Cir 2001) 258 F. 3d 156, 161.............p15

McKenna v Wright (2nd Cir 2004) 386 F. 3d 432, 436............p15

United States v Gaubert (1991) 499 U.S. 315, 324-325, 111 S.Ct



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1267..........................................................p15

Branch v Tunnell (9th Cir.1994) 14 F 3d 449, 454..............p16

Galbraith v County Santa Clara(9th Cir 2002)307F3d1119, 1127).p16

Bryant v. Avado Brnds,inc(11th Cir 1999)187F3d1271, 1281,fn16)p16

In re Stac Electronics securities Litig. (9th Cir 1996)89 F. 3d

1399, 1405, fn 4..............................................p16

Dorsey v. Portfolio Equities, inc (5 Cir.2008)540F3 333,

338...........................................................p16

Chambers v Time Warner, inc (2nd Cir. 2002) 282 F.3d 147, 153 fin

3.............................................................p16

Pension benefit Guar.Corp v White Consolidated industries, inc

(3rd cir 1993)998 F. 2d 1192 1196.............................p16

Barrett v Rosenthal (2006) 40 Cal. 4th 33, 51 Cal Rptr 3d 55..p16

Reno v American Civil Liberties Union (1997) 521 US 844 851, 117

S CT 2329 138 LED 2d 874......................................p19

Fair housing Council of San Fernando Valley v Roommates Com LLC

(9th Cir 2008) 521 F3d 1157 1162..............................p20

Flatley v Mauro(2006)39 Cal4th 299, 321-24 Cal Rptr3d606......p20

Rusheen v Cohen (2006)37Cal4th1048, 1058, 39 Cal RPTR 3d 516..p20

McClatchey Newspapers, inc v superior Court(1987) 189 Cal App.3d

961, 234 Cal Rptr, 702........................................p20

Financial Corp of America v Willburn (1987) 189Cal App3d 771-72,

777, 234 Cal Rptr 653.........................................p20

Shaddox v Bertani(2003)110Cal.app.4th 1406, 1415, 2 Cal

Pptr.3d.......................................................p20

Kemps v Beshwate(2009)180CalApp4th1012, 103 Cal.Rptr.3d 480...p20

Brown v Department of Corrections(2005)132Cal.App4th520, 526, 33

CalPptr.3d 754................................................p20

Hagberg v Ca Federal bank FSB(2004)32 Cal 4th 350, 361-64, 7 Cal



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RPTR. 3d 803..................................................p20

Dove Audio, Inc v Rosenfeld, Meyer and

Susman(2006)47Cal.App4th777, 781-83, 54 Cl rptr 2d 830........p20

Cabral v Martins(2009) 177 Cal.App.4th471,485,99 Cal Rptr 3d

394...........................................................p21

California Physicians service v Superior

Court(1992)9calApp4th1321, 1330, 12 Cal Rptr2d95.............p21

Downey venture v LMI Ins Co (1998) 66 Cal App4th478, 499, 78 Cal

Rptr 2d 142...................................................p23

Adams v Superior Court(1992) 2 Cal App 4th 521, 528, 3 Cal rptr

2d

49............................................................p23

Loomis v Murphy(1990)217 Calpp3d589, 595, 266 Cal Rptr 82.....p24

CACI 1520;WoodcourtII, LTD v Mcdonald Co(1981)119 Cal 3d 245 252,

173 Cal Rptr 836..............................................p25

Bell Atlantic Corp v Twombly 920070550 US 544, 556-557, 570,127

S ct1955, 1965, 1974..........................................p26

FRCP Rule 8(a)FRCP 12b(6)............................p

47 USC section 230...................................p19

CCCP 425.16..........................................p

Cal Civil 1708......................................p23

CCC 1798.53..........................................p26

CCC 1798.85..........................................p28

1. THIS WHOLE COMPLAINT FAILS AND HAS TO BE DISMISSED

UNDER FRCP 12(B)1



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Prior to addressing the specific counts of the complaint the Defendants assert that

the complaint was filed in federal court frivolously in violation of section 12b(1) of

Federal rules of Civil Procedure. Original complaint was filed 05.04.2009 based on

diversity of citizenship, when plaintiff Liberi provided Berg's business address as

her address and tried to create an impression, that she is a different Lisa Liberi, not a

convicted felon from CA, but an innocent person in PA, who was slandered by Taitz

due to mistaken identity. Federal Rule of Civil Procedure 12(b)1 provides for

dismissal of a complaint for lack of subject matter jurisdiction. Any doubt as to

whether jurisdiction exists is normally resolved against a finding of such

jurisdiction. Kantor v. Wellesley Galleries, ltd 704 F2d 1088, 1092 (9th cir.1983.)

Because federal courts are courts of limited jurisdiction, it is presumed that a cause

lies outside this limited jurisdiction, and the burden of establishing the contrary rests

upon the party asserting jurisdiction. Vacek v United states postal service 447 F3d

1248, 1250 (9th Cir 2006) (quoting Kokkonen v Guardian life Ins. Co.of Am 511

US. 375, 377 (1994) (citation omitted)). For diversity of citizenship Plaintiffs were

supposed to provide competent evidence of state citizenship of the parties at the

time this legal action was filed, in order to show that the parties were diverse.

JURISDICTION IS ALWAYS BEFORE THE COURT AND THE COURT

HAS A DUTY TO DISMISS A CASE, WHERE IT HAS NO JURISDICTION

In a recent case of S. Freedman and Company, inc v Marvin Raab et al # 05-1138

(from NJ #04-cv-01119) Third Circuit court judges Honorable Barry, Smith and



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Aldisert found that under precedent of Gould Electronics, inc v United states, 220

F. 3d 169, 176 (3d Cir.2000) Third Circuit court of Appeals had jurisdiction to

review under 28 U.S.C. 1291 the issue of subject matter jurisdiction as a basis

for dismissal of the case. Third Circuit court of Appeals also found that a

District Court has a duty to raise doubts about its jurisdiction at any time,

and the party asserting jurisdiction bears the burden of showing that the

case is properly before the court at all stages of litigation. Packard v

Provident National Bank, 994 F. 2d 1039, 1045 (3d Cir. 1993) and similarly J& R

Ice cream Corp. v. California Smoothie Licensing, 31 F. 3d 1259, 1265 n.3 (3 rd

Cir 1994). In its opinion in Freedman v Raab Third Circuit proceeded to expand

and reiterate that the basis upon which jurisdiction depends must be alleged

affirmatively and distinctly and cannot be established argumentatively or by mere

inference 5C. Wright & A. Miller, Federal Practice and Procedure 1206, at 78-

79 (1969 & Supp. 2005); Thomas v Board of Trustees, 195 U.S. 207, 210 (1904)

(holding that diversity jurisdiction, or the facts upon which, in legal intendment,

it rests, must be distinctly and positively averred in the pleadings, or should

appear affirmatively and with equal distinctness in other part of the record);

Joiner v. Diamond M Drilling Co., 677 F. 2d 1035, 1039 (5 th Cir 1982)

(In order to adequately establish diversity jurisdiction, a complaint must set forth

with specificity a corporate partys state of incorporation and its principal place

of business). Fedcos bald allegations that the corporate parties are citizens of



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certain states are insufficient to carry its burden of pleading the diversity of the

parties. In cases in which jurisdiction is based on diversity of citizenship,

plaintiff has burden to show, first, that applicable statute confers jurisdiction, and,

second, that assertion of jurisdiction is consonant with constitutional limitations

of due process. Weight v Kawasaki Motors Corp. (1985, ED Va) 604 F Supp 968.

Party's mere allegation of diversity cannot satisfy its burden of establishing

district court's jurisdiction; citizenship of each real party in interest must be

established by preponderance of evidence.Roche v Lincoln Prop. Co. (2004, CA4

Va) 373 F3d 610.

Complaint alleging that defendant's corporate citizenship was in a state other than

California but failing to allege that plaintiffs were all citizens of California was not

sufficient to give District Court jurisdiction since pleadings did not otherwise

resolve issue of citizenship. Bautista v Pan American World Airlines, Inc. (1987

CA9 Cal) 828 F2d 546, 126 BNA LRRM 2559, 107 CCH LC P 10159.

In Olsen v Quality Continuum Hospice, Inc. (2004,DC NM) 380 F Supp 2d 1225

Court lacked jurisdiction over patient's claims because he failed to establish

diversity jurisdiction because at time he filed complaint both he and hospice were

citizens of State; also patient only sought $ 10,000 in cost and unspecified amount

for other damages, which did not meet amount in controversy



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In McMann v. Doe (2006, DC Mass) 460 F Supp 2d complaint against John Doe

defendant alleging Internet defamation was dismissed for lack of subject

matter jurisdiction because there was risk that if John Doe's identity were

discovered there could have been no diversity, and court's jurisdictional

authority would have disappeared; court declined to read amended language of28

USCS 1441into 28 USCS 1332 because it would have accomplished much

broader result of allowing case with only one party and only state law claims to

proceed initially in federal court Olsen v Quality Continuum Hospice, Inc. (2004,DC

NM) 380 F Supp 2d 1225.

In motorist's personal injury lawsuit against, inter alia, owners of property adjacent

to private railroad-track crossing where car-train accident occurred, pursuant to 28

USCS 1447(d), appellate court lacked jurisdiction to review remand that implicitly

was based on lack of subject matter jurisdiction; district court clearly was addressing

jurisdictional issues--diversity of citizenship, 28 USCS 1332, and fraudulent

joinder--and when doing so, it properly declined to decide doubtful question of state

law and, instead, resolved ambiguity (lack of state law directly on point) in

motorist's favor. Filla v Norfolk & Southern Ry. (2003, CA8 Mo) 336 F3d 806.

Where record creates doubt as to jurisdiction, trial court must determine whether

there are adequate grounds to sustain its jurisdiction over subject matter. Shahmoon

Industries, Inc. v Imperato (1964, CA3 NJ) 338 F2d 449, 9 FR Serv 2d 12B.22, Case



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Court has duty to look to its own jurisdiction and lack of subject matter

jurisdiction may be asserted by court, sua sponte, at any time. Jeter v Jim

Walter Homes, Inc. (1976, WD Okla) 414 F Supp 791.259. decided by a

preponderance of evidence.

Plaintiffs refused to provide drivers license or an ID card to show the state

citizenship of the lead plaintiff Lisa Liberi. Defendants provided Liberis criminal

record from the San Bernardino, California court, showing Liberi being on

probation under supervision of the San Bernardino, California probations

department, allowed to reside only in California or New Mexico, not in any other

state, not in Pennsylvania. Taitz demanded to see Liberis proof of state citizenship.

Originally Plaintiffs claimed that they showed Judge Robreno Liberis drivers

license during 08.07.2009 motion hearing. Taitz was not able to attend this hearing

and requested the transcript. On July 30, 2010 Plaintiffs filed an emergency motion,

where they demanded to keep the transcript sealed and accused the defendant and

attorney for the defendants Taitz of trying to hire a hit man to kill Liberi and

claimed that for this reason the transcript needs to be sealed. Judge Robreno ordered

the transcript released to Taitz. The transcript showed that the Plaintiffs did not

provide Liberis drivers license, and actually during the hearing judge Robreno

ordered Liberi and her attorney Berg TO FILE LIBERI's DRIVERS LICENSE

WITH COURT. The docket shows that Liberi and BergNEVER FILED LIBERIS



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DRIVERS LICENSE. After Liberi, in presence of judge Robreno, was confronted

with her criminal record and her own mug shot, she admitted, that she is a felon,

who was convicted in Ca in 2008. (Exhibit 1 12.23.2010 memorandum by Judge

Robreno) Currently, Liberi filed a first Amended complaint, where she states, that

she was a resident of New Mexico at the time she filed this legal action , but refuses

to provide her address. As Plaintiffs never filed any documentary evidence of

Liberis state citizenship, this legal action has to be dismissed under 12b1, as the

plaintiffs did not provide any competent evidence of state citizenship of the party to

the action, necessary for the court to assume jurisdiction in diversity, and the court

does not have jurisdiction over the case.

In the matter of public policy it is important to finally enforce 12(b)(1). If this

is not done, this will be a dangerous precedent for any felon on probation, like

Liberi, to file a frivolous SLAPP action, claiming to be a resident of another state

and trying to assume another identity. Such criminal, like Liberi, will make up

outrageous slanderous accusations, accusing her victims and whistle blowers of

capital crimes of trying to hire a hit man to kill her and would demand jurisdiction in

diversity based on her bare allegations and insinuations.

Liberi and Berg are in contempt of court for two years now. It has been two

years since judge Robreno ordered them to file with court Liberi's identification

documents, and they did not do it. It is time for the federal court to enforce 12(b)(1)

and dismiss this case due to lack of jurisdiction.



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ALL CAUSES OF ACTION AGAINST "DEFEND OUR FREEDOMS

FOUNDATION" NEED TO BE DISMISSED UNDER 12(B)(6)

Plaintiffs first amended complaint, despite being more than double the page-count

of the original complaint, violates the edicts of Federal Rules of Civil Procedure Rule 8(a).

According to that rule, a complaint must contain a short and plain statement of the claim

showing that the pleader is entitled to relief. (FRCP 8(a)) For instance, the first 21 pages

of Plaintiffs first amended complaint is dedicated to Taitz alleged ignorance regarding

the workings of the internet and that she falsely accused someone, not any of the Plaintiffs,

of hacking into her blog. Defendants will attempt to fit all major points of this motion in

only 25 pages allowed for memorandum in response to 170 pages complaint. Even though,

the dispute relates only to the publications by DOFF and Taitz, as president of DOFF, out

of malice and with intend to harass, Plaintiffs named as defendants Orly Taitz, inc- dental

practice of Orly Taitz, who happens to be a dentist and a lawyer, her law office, against

her as an individual, her husband, and his employer, which shows complete frivolousness

of this complaint.

1. THE STANDARD FOR RULE 12(B)(6) MOTIONS

A Rule 12(b)(6) motion is similar to the common law general demurrer - i.e., it tests

the legal sufficiency of the claim or claims stated in the complaint. (De La Cruz v. Tormey

(9th Cir. 1978) 582 F.2d 45, 48; SEC v. Cross Fin'l Services, Inc. (CD CA 1995) 908

F.Supp. 718, 726727 (quoting text);Beliveau v. Caras (CD CA 1995) 873 F.Supp. 1393,

1395 (citing text); United States v. White (CD CA 1995) 893 F.Supp. 1423, 1428 (citing

text) The Twombly/Iqbal standard of pleading requires a complaint to contain sufficient

factualallegations to show a plausible claim for relief. Twombly/Iqbalteaches that a

defendant should not be forced to undergo costly discovery unless the complaint contains

enough detail ... to indicate that the plaintiff has a substantial case. (Bissessur v. Indiana

Univ. Bd. of Trustees (7th Cir. 2009) 581 F3d 599, 603)

A Rule 12(b)(6) motion to dismiss for failure to state a claim can be used when a



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plaintiff has included allegations in the complaint that, on their face, disclose some

absolute defense or bar to recovery: If the pleadings establish facts compelling a decision

one way, that is as good as if depositions and other expensively obtained evidence on

summary judgment establishes the identical facts. (Weisbuch v. County of Los Angeles

(9th Cir. 1997) 119 F.3d 778, 783, fn. 1;Hensley Mfg. v. ProPride, Inc. (6th Cir. 2009)

579 F.3d 603, 613;Hearn v. R.J. Reynolds Tobacco Co. (D AZ 2003) 279 F.Supp.2d 1096,

1102 (citing text)) Plaintiffs can plead themselves out of court by pleading particulars that

show they have no legal claim. They are not saved by having pleaded legal conclusions

that would support the claim where the facts pleaded are inconsistent with those legal

conclusions. (Weisbuch v. County of Los Angeles (9th Cir. 1997) 119 F.3d 778, 783, fn. 1;

Bender v. Suburban Hosp., Inc. (4th Cir. 1998) 159 F.3d 186, 192while notice pleading

does not demand that a complaint expound the facts, a plaintiff who does so is bound by

such exposition.)

A Rule 12(b)(6) motion to dismiss may also be used where the lawsuit is brought

against defendants who have statutory or common law immunities (e.g., governmental

officers and entities). (Leveto v. Lapina (3rd Cir. 2001) 258 F.3d 156, 161;McKenna v.

Wright(2nd Cir. 2004) 386 F.3d 432, 436; see also United States v. Gaubert(1991) 499

U.S. 315, 324325, 111 S.Ct. 1267)

2. THE COMMUNICATIONS DECENCY ACT IMMUNIZES TAITZ FROM

LIABILITY ARISING OUT OF HER PUBLICATION OR RE-

PUBLICATION OF INFORMATION RECEIVED FROM ANOTHER

INFORMATION CONTENT PROVIDER

Plaintiffs 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th causes of action uniformly arise out of

Taitzs alleged publication and re-publication of Dossier #6 (Req. for Judicial Notice No.

1). Dossier #6 was an internet posting on Taitzs blog which resulted from Taitzs

combining of content provided by Neil Sankey and Sarah Redd.

A. The Court May Consider Dossier #6



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Although Dossier #6 is not attached to Plaintiffs complaint, it is specifically

referenced by Plaintiffs on numerous occasions throughout the complaint and its content

forms the substantial basis on which Plaintiffs invasion of privacy, defamation, and

intentional infliction of emotional distress claims are based. While it is true that Plaintiffs

are not required to attach to the first amended complaint the documents on which a

Defendants liability is based, if a plaintiff fails to do so, a defendant may attach to a Rule

12(b)(6) motion the documents referred to in the complaint to show that they do not

support plaintiff's claim. (SeeBranch v. Tunnell (9th Cir. 1994) 14 F.3d 449, 454

(overruled on other grounds in Galbraith v. County of Santa Clara (9th Cir. 2002) 307

F.3d 1119, 1127);Bryant v. Avado Brands, Inc. (11th Cir. 1999) 187 F3d 1271, 1281, fn.

16)

Thus, the Court may consider the full text of a document that the complaint quotes

only in part. (In re Stac Electronics Securities Litig. (9th Cir. 1996) 89 F.3d 1399, 1405,

fn. 4; Dorsey v. Portfolio Equities, Inc. (5th Cir. 2008) 540 F.3 333, 338) Documents not

physically attached to the complaint may nonetheless be considered by the court on a 12(b)

(6) motion to dismiss if: (1) the complaint refers to such document; (2) the document is

central to plaintiff's claim; and (3) no party questions the authenticity of the copy

attached to the 12(b)(6) motion. (Branch v. Tunnell, supra, 14 F.3d at 454; Chambers v.

Time Warner, Inc. (2nd Cir. 2002) 282 F.3d 147, 153, fn. 3 (collecting cases)) This

prevents a plaintiff with a legally deficient claim (from surviving) a motion to dismiss

simply by failing to attach a dispositive document on which it relied. (Pension Benefit

Guar. Corp. v. White Consolidated Industries, Inc. (3rd Cir. 1993) 998 F.2d 1192, 1196

(parentheses added)) The Court should consider the full text of Dossier #6 here. The first

amended complaint specifically mentioned Dossier #6 and, in reading the first amended

complaint as a whole, it is central to Plaintiffs claim of relief. Furthermore, the Dossier

#6 of which judicial notice is requested is a copy that Plaintiffs attached to their original

proposed first amended complaint that they filed on May 20, 2011. All of the elements for



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allowing the Courts consideration of Dossier #6 are, therefore, met.

B. Dossier #6 and Allegations in Plaintiffs First Amended Complaint

Reveals the Applicability of Federal Statutory Immunity Under the

Communications Decency Act

Arguably, even if the Court does not consider Dossier #6, Plaintiffs allegations in

the first amended complaint alone are sufficient to establish statutory immunity under the

Communications Decency Act. In paragraph 68 of the first amended complaint, Plaintiffs

adopted Taitzs alleged posting on the blog for DOFF that the information she was

obtaining came from databases: LexisNexis and Choicepoint. (FAC 68) Plaintiffs

followed up that allegation with another allegation that Defendant Orly Taitz already had

Liberi and Ostellas private data from the Reed Defendants and Defendant Intelius, Inc.

(FAC 70) Under the Communications Decency Act Taitz, as a user of an interactive

computer service, cannot be treated as the publisher or speaker of information provided by

another information content provider such as LexisNexis, Inltelius and Choicepoint. What

is more, Plaintiffs admit that Neil Sankey first circulated the article which claimed that

Liberi had an extensive criminal record going back to the 1990s (FAC 63) and that it was

Sankey who provided Taitz with an e-mail containing Liberis social security numbers, her

husbands name, date of birth, maiden name, and residence (FAC 69).

The Communications Decency Act of 1996 provides that: [n]o provider or user of

an interactive computer service shall be treated as the publisher or speaker of any

information provided by another information content provider. (47 U.S.C. 230(c)(1))

No cause of action may be brought and no liability may be imposed under any State or

local law that is inconsistent with this section. ( 230(e)(3)) The California Supreme

Court analyzed the Communications Decency Act in the context of SLAPP suits in the

case ofBarrett v. Rosenthal (2006) 40 Cal.4th 33, 51 Cal.Rptr.3d 55.

InBarrett, Plaintiffs, Dr. Stephen J. Barrett and Dr. Terry Polevoy, operated Web

sites devoted to exposing health frauds. Defendant Ilena Rosenthal directed the Humantics



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Foundation for Women and operated an internet discussion group. Plaintiffs alleged that

Rosenthal and others committed libel by maliciously distributing defamatory statements in

e-mails and Internet postings, impugning plaintiffs' character and competence and

disparaging their efforts to combat fraud. They alleged that Rosenthal republished various

messages even after Dr. Barrett warned her they contained false and defamatory

information. The defamatory statements were summarized as follows:Dr. Barrett is arrogant, bizarre, closed-minded; emotionallydisturbed, professionally incompetent, intellectually dishonest,a dishonest journalist, sleazy, unethical, a quack, a thug, abully, a Nazi, a hired gun for vested interests, the leader of asubversive organization, and engaged in criminal activity(conspiracy, extortion, filing a false police report, and otherunspecified acts.)

Dr. Polevoy is dishonest, closed-minded; emotionallydisturbed, professionally incompetent, unethical, a quack, afanatic, a Nazi, a hired gun for vested interests, the leader of asubversive organization, and engaged in criminal activity(conspiracy, stalking of females, and other unspecified acts)and has made anti-Semitic remarks.

Rosenthal moved to strike the complaint under California Code of Civil Procedure

section 425.16. She claimed her statements were protected speech, and argued that

plaintiffs could not establish a probability of prevailing because she was immune under

section 230. She also contended her statements were not actionable.

The court granted the motion, finding that Rosenthal's statements concerned an

issue of public interest within the scope of the anti-SLAPP statute, and were, for the most

part, not actionable because they contained no provably false assertions of fact. The court

determined that the only actionable statement appeared in an article Rosenthal received via

e-mail from her codefendant Tim Bolen. This article, subtitled Opinion by Tim Bolen,

accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of

this article on the Web sites of two newsgroups devoted to alternative health issues and the

politics of medicine, not on the site of her own discussion group.

According to Rosenthal, these newsgroups were part of the wild west of the



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Internet, (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 851, 117 S.Ct.

2329, 138 L.Ed.2d 874.) with no administrators and no one to enforce rules of conduct.

The trial court ruled that this republication was immunized by section 230(c)(1).

The California Supreme Court held that Rosenthal was, in fact, protected from

liability under the circumstances. By its terms, section 230 exempts internet intermediaries

from defamation liability for republication. (Barrett v. Rosenthal (2006) 40 Cal.4th at 63)

Plaintiffs may attempt to argue that Taitz actively participated in the creation of the

materials that were included in Dossier #6, however, as the en banc court cautioned in Fair

Housing Council of San Fernando Valley v. Roommates.Com, LLC(9th Cir. 2008) 521

F.3d 1157, 1162: only [w]here it is very clearthat the website directly participates in

developing the alleged illegality ... [will] immunity ... be lost.... [I]n cases of enhancement

by implication or development by inference[,] ... section 230 must be interpreted to protect

websites not merely from ultimate liability, but from having to fight costly and protracted

legal battles. (Id. at 1174-75) (Emphasis added)

The Communications Decency Act (47 U.S.C. 230) gives defendants immunity

from her re-publication of information she obtained from LexisNexis and Choicepoint,

Sankeys report which allegedly contained Liberis social security number, and her re-

publication of Liberis San Bernardino County Superior Court record. The Court should

find that Plaintiffs cannot present any facts to support a judgment in their favor against

Taitz and DOFF because of the immunity provided by the Communications Decency Act

and direct Plaintiffs to seek recovery against the LexisNexis and Choicepoint Defendants

who are the original information content providers.

3. PLAINTIFFS 1ST, 2ND, 3RD, 4TH, 8TH AND 9TH CAUSES OF ACTION ARE

BARRED BY PRIVILEGE AFFORDED BY CALIFORNIA CIVIL CODE

SECTION 47

California Civil Code section 47 provides, in pertinent part: A privileged

publication or broadcast is one made: (b) In any (2) judicial proceeding, (3) in any



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other official proceeding authorized by law, or (4) in the initiation or course of any other

proceeding authorized by law The fact that the publication is a falsehood is not the

determining factor, and the privilege encompasses even perjury, so long as the publication

of perjured matter falls within the statutory requirements. (Flatley v. Mauro (2006) 39

Cal.4th 299, 32124, 46 Cal.Rptr.3d 606explaining rationale and relation to SLAPP

statute;Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058, 39 Cal.Rptr.3d 516collecting

cases on point) The privilege is absolute and protects publications made with actual

malice or with an intent to do harm even if, for example, the publication is made outside

the courtroom and without invocation of any court function. (McClatchy Newspapers, Inc.

v. Superior Court(1987) 189 Cal.App.3d 961, 234 Cal.Rptr. 702statements by reporter

during deposition and later publication in reporter's newspaper are privileged; Financial

Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 77172, 777, 234 Cal.Rptr. 653

Plaintiffs' premise is that the subjective intent, purpose, or knowledge of a writer can

destroy the privileged status of otherwise privileged statements. The law is otherwise.)

The privilege has been interpreted to extend to communications to a local police

department concerning possible wrongdoing made with the intent to prompt police action.

(Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1415, 2 Cal.Rptr.3d 808, 815policy of

encouraging reports of misconduct or unfitness by law enforcement officers is so strong

that virtually no complaint, no matter how ill-founded or basely motivated, has been found

sufficient for criminal or civil liability) Statements made to prompt an official

investigation that may result in the initiation of judicial proceedings may fall within the

47(b) privilege as well. (Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 103

Cal.Rptr.3d 480;Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 526,

33 Cal.Rptr.3d 754, followingHagberg v. California Federal Bank FSB (2004) 32 Cal.4th

350, 36164, 7 Cal.Rptr.3d 803) The privilege has been extended to communications

concerning potential court actions as well as actions actually filed. (Dove Audio, Inc. v.

Rosenfeld, Meyer & Susman (2006) 47 Cal.App.4th 777, 78183, 54 Cal.Rptr.2d 830) The



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privilege applies to communications relating to the defense of an action, as well as to its

filing and prosecution. Cabral v. Martins (2009) 177 Cal.App.4th 471, 485, 99 Cal.Rptr.3d

394; California Physicians Service v. Superior Court(1992) 9 Cal.App.4th 1321, 1330, 12

Cal.Rptr.2d 95Defensive pleading, including the assertion of affirmative defenses, is

communication protected by the absolute litigation privilege. Such pleading, even though

allegedly false, interposed in bad faith, or even asserted for inappropriate purposes, cannot

be used as the basis for allegations of ongoing bad faith. No complaint can be grounded

upon such pleading.)

Here, Plaintiffs invasion of privacy and defamation causes of action are replete

with allegations that the allegedly harmful communications by Taitz were made to judical,

executive, and law enforcement officials:

62Ostella received an e-mail which was carbon copied to the Chicago FBIa

statement made to prompt an official investigation or to a police agency concerning

possible wrongdoing.

71Berg received a cease and desist e-mail from Taitz demanding that Berg join

her in opening an investigation with the authoritiesa statement made to prompt an

official investigation or to a police agency concerning possible wrongdoing.

77Taitz sent a letter to the FBI and the Department of Justice filing a criminal

complaint against Ostellaa statement made to prompt an official investigation or to a

police agency concerning possible wrongdoing.

86Taitz filed a false police report with the Orange County Sheriffs Department

against Liberi and Ostella.

88Taitzs publication of pleadings in this casea publication of pleadings made

in this judicial proceeding.

89Posting of pleadings in this case to the docket of another casea publication

of pleadings made in this judicial proceeding.

94Taitzs harassment of the Santa Fe Police Department demanding that they



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arrest Liberia statement made to prompt an official investigation or to a police agency

concerning possible wrongdoing.

115Taitzs harassment of various law enforcement agencies a statement made

to prompt an official investigation or to a police agency concerning possible wrongdoing.

117Taitzs filings in this matter pleadings made in this judicial proceeding.

118Taitzs filings in another matter before the court pleadings made in a

judicial proceeding.

120Taitzs non-stop harassment of the Santa Fe police and probation

departmentsa statement made to prompt an official investigation or to a police agency

concerning possible wrongdoing.

123Taitzs harassment of the Santa Fe probation department a statement made

to prompt an official investigation or to a police agency concerning possible wrongdoing.

124Taitzs filings in this matter pleadings made in this judicial proceeding.

125Taitzs filings in San Bernardino County Superior Court pleadings made in

a judicial proceeding.

Each of the foregoing communications, which form the basis of Plaintiffs 1st, 2nd,

3rd, 4th, 8th and 9thcauses of action are privileged under California Civil Code section 47.

4. LIBERI HAS FAILED TO STATE FACTS SUFFICIENT TO STATE A

CLAIM TO SUPPORT THE 10TH

CAUSE OF ACTION FOR MALICIOUS

PROSECUTION BECAUSE PLAINTIFFS HAVE FAILED TO ALLEGE

ANY ACTIONABLE PRIOR ACTION

Liberis malicious prosecution cause of action is entirely based upon Defendants

filing of a Motion for Emergency Revocation of Probation against Liberi in San

Bernardino County Superior Court. (FAC 316) The malicious prosecution cause of

action is based upon a motion that Liberi alleges was wrongfully filed by Taitz.

The commission of the tort of malicious prosecution requires a showing of an

unsuccessful prosecution of a criminal or civil action, which any reasonable attorney



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would regard as totally and completely without merit, for the intentionally wrongful

purpose of injuring another person. (Downey Venture v. LMI Ins. Co. (1998) 66

Cal.App.4th 478, 499, 78 Cal.Rptr.2d 142) Malicious prosecution actions require the

initiation of a full blown action. Subsidiary procedural actions within a lawsuit, such as an

application for a restraining order, will not support a claim for malicious prosecution.

(Adams v. Superior Court(1992) 2 Cal.App.4th 521, 528, 3 Cal.Rptr.2d 49) Making

motions for reconsideration in a criminal case were not independent actions and could not

constitute the initiation of a lawsuit for purposes of malicious prosecution claim. (Id.)

InAdams the defendants were being sued by Plaintiff Vu in Santa Clara County

alleging four causes of action for malicious prosecution and abuse of process. Vus

lawsuit was based on the premise that the attorneys acted tortiously when they attempted to

intervene in criminal cases in Santa Clara and San Mateo Counties in which Vu was

attempting to have felony convictions reduced to misdemeanors or expunged. The Santa

Clara County Superior Court had granted reduction of a felony conviction pursuant to

Penal Code section 17, subdivision (b)(3), and the San Mateo County Superior Court

granted dismissal pursuant to Penal Code section 1203.4.

After both courts granted that relief, the petitioners/defendants filed motions for

reconsideration in both actions seeking to bring to the attention of the respective courts

Vus alleged conduct in a fraudulent real estate sale. The attorneys alleged motive was

their wish to preserve the felony convictions to impeach Vu in a civil suit involving that

fraudulent real estate sale. The complaint alleged that they made the reconsideration

motions for the purpose of annoying [Vu], to cause [Vu] to expend further moneys on

attorneys' fees to defend said motion; to cause [Vu] to experience anxiety, nervousness and

loss of sleep resulting from her shame and embarrassment associated with the possibility

of once again being considered a felon; and furthermore ... with purpose of gaining

collateral advantage on the pending litigation in Monterey County, ... Vu also charges the

motive of pressuring her to compel her to yield in the Monterey lawsuit. The San Mateo



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County Superior Court denied petitioners' motion for reconsideration without any mention

of lack of standing. However the Santa Clara County Superior Court denied the motion for

lack of standing.

Vu then sued petitioners for malicious prosecution and abuse of process in Santa

Clara County. Petitioners demurred and the trial court overruled petitioners demurrers to

causes of action for abuse of process and has sustained, but with leave to amend,

demurrers to causes of action for malicious prosecution. (Adams v. Superior Court(1992)

2 Cal.App.4th at 526-527) The Court of Appeal overruled the trial courts orders and

instructed the trial court to sustain the demurrer as to all causes of action with leave to

amend. The Court of Appeal agreed with the defendants argument that the tort of

malicious prosecution requires the initiation of a full-blown action as well as its favorable

termination for the malicious prosecution plaintiff and directed the lower court to sustain

the demurrer without leave to amend. (Id. at 528)

Here, as inAdams, there was no full blown action initiated by Taitz. By Plaintiffs

own admission, Taitz merely filed a motion in the criminal case. (FAC 316) Because the

prior action element of a cause of action for malicious prosecution has not been alleged,

Plaintiffs have failed to state any facts on which this cause of action may be based.

5. LIBERI HAS FAILED TO STATE FACTS SUFFICIENT TO STATE A

CLAIM TO SUPPORT THE 11TH

CAUSE OF ACTION FOR ABUSE OF

PROCESS BECAUSE NO PROCESS RESULTED FROM THE

ALLEGEDLY IMPROPER MOTION

Liberis abuse of process cause of action is again entirely based upon Defendants

filing of a Motion for an Emergency Revocation of Probation against Liberi in San

Bernardino County Superior Court. (FAC 327) The abused of process cause of action is

based upon a motion that Liberi alleges was wrongfully filed by Taitz.

In order to state a claim for abuse of process, Liberi must establish a substantial use

or misuse of a legal process. (Loomis v. Murphy (1990) 217 Cal.App.3d 589, 595, 266



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Cal.Rptr. 82) An abuse of process is an act done in the name of the court and under its

authority by use of a legal process for the purpose of perpetrating an injustice. (CACI

1520; Woodcourt II, Ltd. v. McDonald Co. (1981) 119 Cal.App.3d 245, 252, 173 Cal.Rptr.

836) The Court of Appeal inAdams v. Superior Court, supra, held that one of the bases

for sustaining defendants demurrer to Vus complaint for abuse of process was because

the mere filing of motions in the criminal cases which were denied and thus did not result

in any order or process which could be misused by the defendants was not sufficient to

support plaintiffs abuse of process claim. (Adams v. Superior Court(1992) 2 Cal.App.4th

at 532)

The same holding and reasoning should apply here. Assuming all of Plaintiffs

allegations to be true, because Plaintiffs admitted that Judge Sabet denied the motions

(FAC 316), Liberi has failed to present any facts to support her cause of action for abuse

of process since, as a matter of law, no process was either issued or misused by Taitz.

6. LIBERI AND OSTELLA HAVE FAILED TO STATE FACTS SUFFICIENT

TO SUSTAIN THEIR 7TH

CAUSE OF ACTION FOR CYBER-STALKING

BECAUSE HAVE NOT ALLEGED A CREDIBLE THREAT INTENDING

TO PLACE PLAINTIFF IN REASONABLE FEAR

In order to establish the tort of stalking, Plaintiffs must allege all of the following

elements: (a) That Taitz engaged in a pattern of conduct the intent of which was to

follow, alarm, or harass them. To establish this element, the allegations must be

supported with independent corroborating evidence. (Cal. Civil 1708.7(a)(1)); (b) That as

a result of the Taitzs pattern of conduct, they reasonably feared for their safety, or that of

an immediate family member. (Cal. Civil 1708.7(a)(2)); and (c) That Taitz either (1) as

part of a pattern of conduct, made a credible threat with the intention of placing the

plaintiff in reasonable fear for his or her safety, or that of an immediate family member;

and, on at least one occasion, the plaintiff clearly and definitively, but unsuccessfully,

demanded that the defendant stop that pattern of conduct (Cal. Civil 1708.7(a)(3)(A)), or



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(2) violated a restraining order (Cal. Civil 1708.7(a)(3)(B)).

Even assuming Plaintiffs allegations to be true, Ostella and Liberi cannot meet the

first and last elements of a claim for stalking. Plaintiffs have failed to sufficiently allege

that Taitzs intention was ever to follow, alarm, or harass Ostella and Liberi. What is

more, the complaint is bare when it comes to credible threats allegedly made by Taitz

against Liberi and Ostella. The only threats made by Taitz alleged by Plaintiffs were

contained in paragraph 275 of the first amended complaint where they claim that Taitz

openly threatened to destroy Liberi and get rid of her; Taitz threatened to have Liberis

children professionally kidnapped; Taitz has called for the political purging of Liberi and

Ostella. The meaning of political purging is to kill. None of these threats, standing alone

are sufficient credible threats under the circumstances. Although the complaint need not

contain detailed factual allegations, its (f)actual allegations must be enough to raise a

right to relief above the speculative level ... on the assumption that all the allegations in the

complaint are true (even if doubtful in fact). In short, it must allege enough facts to state

a claim to relief that isplausible on its face. (Bell Atlantic Corp. v. Twombly (2007) 550

US 544, 556557, 570, 127 S.Ct. 1955, 1965, 1974 (parentheses in original; emphasis

added))

Additionally, Defendants refer the court to three motion hearings held in this case before

the prior judge on the case, Judge Robreno. Plaintiffs repeatedly demanded TRO, claiming cyber

harassment, cyber bullying, cyber-stalking. All three times their motions were denied. In his

12.23.2010 memorandum Judge Robreno has already ruled, that the Plaintiffs provide bare

allegations without any proof and without any admissible evidence. Similarly, Plaintiffs provided

their allegations in the Third Circuit court of Appeals and demanded TRO due to their claims of

cyber harassment. Third Circuit court of Appeals denied all of their claims as well.

PLAINTIFFS CANNOT PREVAIL UNDER PRIVACY ACT (IPA), CAL CIV CODE

1798.53

Any person, other than an employee of the state or of a



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local government agency acting solely in his or her official

capacity, who intentionally discloses information, not otherwise

public, which they know or should reasonably know was obtained from

personal information maintained by a state agency or from "records"

within a "system of records" (as these terms are defined in the

Federal Privacy Act of 1974 (P. L. 93-579; 5 U.S.C. 552a)) maintained

by a federal government agency, shall be subject to a civil action,

for invasion of privacy, by the individual to whom the information

pertains. (enphasys added)

Yet again, looking at the four corners of the complaint, it is clear, that the plaintiffs

did not satisfy any of the prongs to qualify for damages under 1798.53

1Plaintiffs did not specify one single piece of information, one single fact, that was

published by the defendants, which is "private" and not available to the public.

2. If arguendo something published, was not part of public record, which there

wasn't, Plainiff did not plead with specificity any facts, that would show that the

defendants knew or should have known, that information was not public.

3. Even if arguendo there was any information that was not public, which there

wasn't, plaintiffs did not plead with specificity any facts, that would show, that such

publication was intentional.

So, this cause of action fails on all prongs and needs to be dismissed due to failure to

state a claim.



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damage, particularly in light of the fact, that Liberi, herself, provided her full social

security number, which is readily available in unredacted form in her two

bankruptcy filings and in her declaration filed in her criminal case.(Request for

judicial notice) At any rate, Liberi is seeking statutory damages based on violation

of 1798.85 and there are no statutory damages at all under this statute, therefore this

cause of action needs to be dismissed under 12b6. If arguendo, a statutory damage

of $3,000 per publication, would be provided, even though there is no statutory

damages, than one time publication of an unredacted number would be punishable

with $3,000, regardless of how many people read the web site, it is still one

publication. This penalty not only falls far below $75,000 needed as a minimum

amount for the complaint to be sustained in federal court, and the complaint will

have to be dismissed under 12b1, such damage would not even qualify the case for

the state superior court, as small claims limits are up to $7,500, which places this

case squarely in the small claims court. Additionally, Plaintiffs did not plead any

causation, that would show, that the fact, that one of Liberi's social security

numbers, that was unredacted for a day or two in April 2009, over 2 years ago,

caused her any damages. As shown in exhibits 2 and 3 Liberi readily entered her full

social security number in her Bankrupcy applications, that she made in 2000 and in

2002. She provided two different full social security numbers.(for the purpose of

this filing, her numbers were redacted). Additionally, Liberi has entered her full

social security number in her declaration made in her criminal case in San



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Bernardino, CA. Plaintiffs made multiple general allegations, but did not provide

with specificity any facts that showed them to suffer any specific damage. They did

not show, for example, that somebody stole something from Liberi, while using her

social security number and this damage is actually and proximally related to the

publication. Even if arguendo there would have been any specific damage, which

there wasn't, Plaintiffs did not plead any specific facts to show any nexus to the

actions by the Defendants. Is it plausible to believe, that Liberi suffered any damage

due to the fact, that her number was unredacted for a day or two on DOFF web site

and not because it was unredacted and up to this day remains unredacted in her two

bankruptcy applications, which are public domain, or in her criminal case, which is

also public domain? No, it is not plausible, which means that the claim fails under

Twombly standard. (Liberi's social security number in attached exhibits was

redacted for the purpose of this filing, but a full, unredacted record is readily

available for public at large)

Additionally, Plaintiffs are flagrantly attempting to defraud this court.

Plaintiffs are trying to defraud the court by attaching remedies from statute

1798.84, which relates only to customers of governmental agencies to the

following statute 1798.85, under which they are suing. In their original complaint

plaintiffs sued under 1798.81, which is statute, that relates only to customers of

governmental agencies, whose full social security numbers were made public.

Defendants filed motions to dismiss under AntiSLAPP and 12b 1 and 12b6, where



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they showed, that those statutes do not relate to them, as they are not governmental

agencies and Plaintiffs are not their customers. In response Plaintiffs filed an

amended complaint, where they removed a cause of action under 1798.81 and sued

under 1798.85, but they included reference to remedies under 1798.84, which are

remedies relating to the prior statute 1798.81.

This is reminiscent of schemes pulled by Liberi in her case FWV 028000, for which

she was convicted of 10 felonies.

While Liberi is a criminal, who does not feel obligated to act with any ethics to the

court, her attorney Philip Berg, who was granted pro hac vice by this court and local

attorney Gary Kreep, know that they are officers of the court and are not allowed to

pull such schemes and defraud the court. Defendants demand not only dismissing

this cause of action, which is based on non-existent statutory damages, but also

sanctioning Berg and Kreep for attempting to defraud the court.

Sixth cause of action needs to be dismissed under 12b6

3. CONCLUSION

Based on the foregoing, defendants respectfully request to be dismissed from

Plaintiffs 1st

through 11th

causes of action in the first amended complaint with prejudice.

The first amended complaint is a SLAPP suit and Plaintiffs cannot state facts sufficient to

state a viable claim against defendants based upon the allegations of the first amended

complaint, the immunity afforded by the Communications Decency Act, and the privilege

granted by California Civil Code section 47.



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DATED: July 11, 2011

/s/ Orly Taitz

Proof of service

I attest, that a true and correct copy of the above pleadings was served on all the parties to

this action by ECF and/or e-mail on 07.11.2011

/s/ Orly Taitz


LIBERI v TAITZ (C.D. CA) - 283.0 - NOTICE OF MOTION AND MOTION to Dismiss Case filed by efndant...

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Transcript of LIBERI v TAITZ (C.D. CA) - 283.0 - NOTICE OF MOTION AND MOTION to Dismiss Case filed by efndant...