LINCOLN v DAYLIGHT CHEMICAL, et al. - 18 - NOTICE OF MOTION AND MOTION to Strike Plaintiff's First...

8/7/2019 LINCOLN v DAYLIGHT CHEMICAL, et al. - 18 - NOTICE OF MOTION AND MOTION to Strike Plaintiff's First Claim for Rel

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CASE NO. 8:10-cv-OI573-AG-PLANOTICE OF MOTION AND MOTIONOF DEFENDANTS LAW OFFICE OFORLY TAITZ AND DR. ORLYTAITZ,ESQ~p.D.S., J.D. TO STRIKEPLAH\JTIFF'S FIRST CLAIM FORRELIEF PURSUANT TO SECTION425.16 OF THE CALIFORNIA CODEOF CIVIL PROCEDURE

BARTLEY L. BECKER, SB# 70109E-Mail: beckerdUbbslaw.comWILLIAM E. PA ARES, SB# 187740E-Mail: -liallares CZl11bbslaw.omLEWIS B ISBOIS BISGAARD &SMITH LLP221 North Figueroa Street, Suite 1200Los AngeleS~ California 90012Telephone: 213) 250-1800Facsimile: 213) 250-7900Attorneys for Defendants LAW OFFICE OF ORL YTAITZ and DR. ORLY TAITZ, ESQ., D.D.S., J.D.

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA, SANTA ANA DIVISION

MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE

Date: February 7,2011Time: 10:00 a.m.Ctrm.: 100

[Filed concurrently herewith Request forJudicial Notice) Declaration of Uri) ' :TaitzhDeclaration of William E. Pallaresand (Proposed) Order.]

CHARLES EDWARD LINCOLN, III,Plaintiff,

v.DA YLIGHT CHEMICALINFORMATION SYSTEMS,INCORPORATED YOSEF TAITZ,ORLY TAITZ, INC., APPEALINGDENTISTRY, LAW OFFICE OF ORLYTAITZ(RICO Enterprise), DR. ORLYTAITZ,- ESQ., D.D.SAJ.D., DEFENDOUR FREEDOMS FvUNDATION, andall JOHN & JANE DOES 1-10,

Defendants.

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Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 1 of 23 Page ID #:228


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PLEASE TAKE NOTICE that on February 7,2011, at 10:00 a.m., or as soonthereafter as the matter may be heard in Courtroom 10D in the above-entitled courtlocated at 411 West Fourth Street, #1053, Santa Ana, California 92701, DefendantsLaw Office ofOrly Taitz and Dr. Orly Taitz, Esq., D.D.S., J.D. (hereinafter"Defendants") will and hereby do move to strike Charles Edward Lincoln, III("Plaintiff") first claim for relief, malicious prosecution, to the First AmendedComplaint, pursuant to section 425.16 of the California Code of Civil Procedure.Defendants bring this motion the grounds that: (1) Defendants were engaged in aFirst Amended Activity (filing documents with the United States District Court,Southern District of Florida in the matter of Marsha G. Rivernider, et al. v. Us.Bank Association, et at. Case No. 09-81255-Civ-Dimitrouleas/Snow) (hereinafterreferred to as the "Florida Action"), pursuant to pending litigation and ongoingjudicial proceedings; and (2) Plaintiff cannot meet his burden to establish aprobability he will prevail on the merits of his claim for malicious prosecution.

Specifically, Plaintiff complains that Defendants made false charges of forgery. in the Florida Action. However, any alleged charges of forgery were made in asubsidiary proceedings to the pending litigation. To support a claim for maliciousprosecution, defendant must have commenced an independent action. Without thecommencement of an independent action, Plaintiff's malicious prosecution claimfails as a matter of law. In taking Judicial Notice of the Florida Action's civildocket, the evidence will demonstrate that any alleged charges of forgery werecommunications made in response to a court order.

This motion is based upon this Notice of Motion and Motion, theaccompanying Memorandum of Points and Authorities, the Request for JudicialNotice, the Declarations of Orly Taitz, Esq. and the Declaration of William E.Pallares, Esq., filed concurrently herewith, the pleadings and papers on file in thisaction, and upon such other oral argument and/or documentary matters as may bepresented to this Court at or before the hearing on this Motion.4830-20069384.1 -1-MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE CASE NO, 8:1O-CV-01573-AG (PLAX)



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By lsi William E. PallaresWilliam E. PallaresAttorneys for Defendants LAW OFFICE OFORLY TAITZ and DR. ORLY TAITZ, ESQ.,D.D.S., J.D.

1 This Motion is made following a meet and confer between Defendants'2 counsel and Plaintiff, pursuant to Local Rule 7-3, on December 30, 2010.3 Respectfully submitted,4 DATED: January 6,2011 LEWIS BRISBOIS BISGAARD & SMITH LLP5678910111213141516171819202122232425262728

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TABLE OF CONTENTSPa2e

INTRODUCTION 1FACTUAL AND PROCEDURAL BACKGROUND 1A. Plaintiff's First Claim For Relief Is For MaliciousProsecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B.C.

The Florida Action 3The Florida Court Issued An Order To Show CauseRe Sanctions 4Pursuant To The Florida Court's Order To Show CauseRe Sanctions, Dr. Taitz Advised The Florida Court ThatHer Signature Was Forged Because She Did Not SignThe First Amended Motion To Substitute Counsel 5The Florida Court Set An Evidentiary Hearing For TheOSC Re Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Magistrate Judge Snow's Findings Of Fact And ConclusionsOf Law From The Evidentiary Hearing In The OSC ReSanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D.

E.F .

THEANTI-SLAPP STATUTE GOVERNS THIS DISPUTE 7A . The Anti-SLAP Statute Requires Dismissal Of Plaintiff'sFirst Claim For Malicious Prosecution 7

Defendants Have Met Their Burden Under The Anti -SLAPPStatute 7Plaintiff Must Establish He Will Prevail On His MaliciousProsecution Claim 9

B.C.PLAINTIFF CANNOT SHOW THAT HE WILL PREVAIL ONHIS MALICIOUS PROSECUTION CLAIM 9A. Plaintiff's Claim For Malicious Prosecution Fails As AMatter Of Law Because The OSC Re Sanctions Was ASubsidiary Procedural Action To The Pending FloridaAction 10B. Plaintiff Cannot Demonstrate That He Obtained AFavorable Result From The OSC Re Sanctions . . . . . . . . . . . . . . . .. 11C. Plaintiff Cannot Demonstrate That Defendants ActedWith Malice Regarding The OSC Re Sanctions 12CONCLUSION 13

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TABLE OF AUTHORITIES

Federal CasesBatzel v. Smith333 F.3d 1018 (9th Cir. 2003)Vess v, Ciba-Geigy COYJ!..USA317 F.3d 1097 (yth Cir. 2003)

.................................... 7

.................................... 7

State CasesAdams v, Superior Court2 Ca1.AppAth 521 (1999) 10Albertson v. Raboff

185 Cal.App.2d 372 (1960) 13Briggs v. Eden Council for Hope &Opportunity19 Ca1.4th 110G(1999) 7Cabral v, Martins177 Cal.AppAth 471 (2009) 7HMS Capital, Inc. v. Lawyers Title Co.r18 CaLAppAth 204 (2004) 9Lossing v. Superior Court207 Cal.App.3d 635 (1989) 9Macias v. Hartwell55 Cal.AppAth 699 (1997) 9Merlet v. Rizzo64 Cal.AppAth 53 (1998) 9, 11Northrup v, Baker202 Cal.App.2d 347 (1962) 13People v. Sims32 Ca1.3d 468 (1982) 12Rusheen v. Cohen37 Ca1.4th 1048 (2006) 8Sheldon 4J;pel Co. v, Albert &Oliker47Cal.3d 863 (1989) 9,12Teitelbaum Furs, Inc. v. Dominion Insurance Co., Ltd.58 Ca1.2d 601 (1962) 12

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5 Cal. Civ. Proc. Code 425.16(a) 76 Cal. Civ. Proc. Code 425.16(b)(1) 77 Cal. Civ. Proc. Code 425. 16(e)(1) 88 Cal. Civ. Proc. Code 425.16(e)(1) and (2) 79 Code a/Civil Procedure 425.16 110111213141516

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1 Vella v. Hudgins20 Ca1.3d 251 (1977) 122 Wilson v. Parker, Cover & Chidester3 28 Ca1.4th 811 (2002) 94

State Statutes

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MEMORANDUM OF POINTS AND AUTHORITIES1. INTRODUCTION

Plaintiff Charles E. Lincoln, III ("Plaintiff~) has sued Defendants Law OfficeofOrly Taitz and Dr. Orly Taitz, Esq., D.D.S., J.D. ("Defendants") for multipleclaims, including the claim of malicious prosecution. The basis of Plaintiff s claim isthat Defendants allegedly falsely charged Plaintiff of forgery in pending litigation inthe State of Florida. Any alleged communication or charge made during a judicialproceeding or before a judicial body falls within the anti-SLAPP statute, pursuant toCalifornia Code of Civil Procedure Section 425.16. To succeed under a claim ofmalicious prosecution, Plaintiff must demonstrate that the alleged communication orcharge commenced an independent proceeding against Plaintiff. The evidence willdemonstrate that no such independent proceeding occurred. In fact, the proceedingPlaintiff complains about, an order to show cause re sanctions, was brought suasponte and arose from pending litigation. Subsidiary procedural matters do not giverise to a malicious prosecution claim.

Further, the evidence will further show that Plaintiff cannot satisfy theelements for a claim of malicious prosecution: that being, a favorable terminationand malice on the part of Defendants.

Accordingly, Defendants respectfully request that this Court grant their motionto strike Plaintiffs first claim for relief in his First Amended Complaint.

2. FACTUAL AND PROCEDURAL BACKGROUNDOn November 5, 2010, Plaintiff filed his First Amended Complaint ("FAC'~)

against Defendants, asserting claims for breach of contract, breach of fiduciary duty,legal malpractice and malicious prosecution.l' Defendants acknowledged receipt of

1 1 See FAC at 2:1-3, referenced as Dkt. #5 on the court's civil docketsheet, attached as Exhibit B to the Declaration of William E. Pallares at , - [ 3 .4830-20069384.1 -1-MOTION TO DISMISS PURSUANT CASENO. 8:10-CV-01573-AG (PLAX)TO ANTI-SLAP STATUTE



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the FAC on November 8,201 O.llA. Plaintiffs First Claim For Relief Is For Malicious Prosecution.Plaintiff's claim for malicious prosecution alleges that Defendants "falsely

charged Plaintiff of forging her signature (or signing without permission) on certainmotions filed in the United State District Court for Southern District of Florida in theCourt of Judge William P. Dirnitrouleas.t'" The matter Plaintiff refers to is entitledRivernider, et al. v. Us. Bank National Association, United States District Court,Southern District of Florida, Case No. 9:09-cv-81255 WPD, (hereinafter referred toas the "Florida Action". y v Plaintiff also alleges that Defendants "filed her affidavitsor declarations maliciously with intent to defame Lincoln. "11

B. The Florida Action.On August 28,2009, three plaintiffs, including Charles E. Lincoln, III,

proceeded pro se and filed a complaint pertaining to a note and mortgage in theamount of $729,000 on real estate located in Palm Beach, Florida - the FloridaAction . 1 On September 24,2009, defendant in the Florida Action, U.S. Bank, filed aMotion to dismiss the complaint-" On October 13, 2009, after the Florida plaintiffs'time for filing a response had elapsed, the Florida court issued an Order to ShowCause why the motion should not be granted. Exhibit A to Request for JudicialNotice (hereinafter referred to as "RJN"). The Florida plaintiffs were directed toshow cause no later than October 23, 2009. ld. at p. 6.

l/ See Pallares at ~4.See FAC at 6:25-7:1.See Exhibit A attached to the PaIlares at ~2.See FAC at 7:6-6, Dkt. 5.See Exhibit A attached to the Pallares at ,-r2,Dkt. 1.ld.,Dkt. 8.

'2 /

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On October 22,2009, Defendant Dr. Orly Taitz filed with the court a Motionto Substitute Counsel for Pro Se Litigants and Motion for Additional Time toRespond to Motion to Dismiss. See Exhibit B to RJN at pp. 9-10. As Dr. Taitz isnot a member of the Florida State Bar, the motion requested a temporary waiver ofthe local counsel requirement. Id. at pp. 9-10. On October 23, 2009, the Floridacourt denied without prejudice the Motion to Substitute Counsel and Motion forAdditional Time. Exhibit C to RJN at p. 14. The Florida court gave the Floridaplaintiffs until October 30, 2009 to comply with the local rules to meet and conferbefore filing a motion. Jd .

On October 30, 2009, a First Amended Motion to Substitute Counsel forPro Se Litigants and Motion for Enlargement of Time Until November 30,2009, toRespond to Motion to Dismiss was filed, purportedly bearing the signature ofDr. Orly Taitz. Exhibit D to the RJN at pp. 17-20. On November 2, 2009, the courtissued two orders - a second order to show cause and an order denying the FirstAmended Motion to Substitute Counsel. Exhibits E and F to RJN at pp. 26 & 29-31.

The order denying the First Amended Motion to Substitute counsel indicatedthat Dr. Orly Taitz "failed to comply with Rules 2 and 4 of the Special RulesGoverning the Admission and Practice of Attorneys." Exhibit F to RJN at pp. 30-31:& Around November 3, 2009, Dr. Taitz received the Florida court's order denyingthe First Amended Motion to Substitute Counsel."

The Florida court's order stated that Dr. Taitz "made no attempt to file averified petition for admission pursuant to Rule 2 of the Special Rules Governing theAdmission and Practice of Attorneys," and concluded that she "proceededimproperly to file motions without being admitted to practice in this district and

See also Declaration of Defendant Orly Taitz at ~6.[d. at ~5.

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without obtaining local counsel." Id. at p. 31.lQ IOn November 6,2009, Dr. Taitz prepared a correspondence to the Honorable

William P. Dimitrouleas, United States District Judge, to respond to the court'sorder, informing Judge Dimitrouleas that she did not file the First Amended Motionto Substitute Counsel.l" Dr. Taitz' November 6, 2009 correspondence further statedas follows:

"Ihave signed an initial substitute of counsel forMr. Lincoln to assist him in his real estate case in Idahoand Florida with the understanding that local counsel willbe retained by Mr. Lincoln in both states. As Mr. Lincolnfailed to retain local counsel in either Idaho or Florida, Ihave indicated to him that Ican't represent him. I have noidea who filed those subsequent motions as I do notrepresent plaintiffs in this case."

(Emphasis added.j-" On November 10, 2009, the Florida court issued Notice ofReceipt of Dr. Taitz' correspondence. Exhibit G to RJN at p. 35.

On November 12, 2009, the Florida plaintiffs filed their Combined Responseto Second Order to Show Cause. Exhibit H to RJN at pp. 38-74. Plaintiff Charles E.Lincoln, Ill's affidavit in support of the Combined Response indicated that"Dr. Taitz has since October 27, 2009, taken steps to withdraw as my counsel." Id. atp. 57, Lincoln's affidavit at ~5.

c. The Florida Court Issued An Order To Show Cause Re Sanctions.On November 12,2009, the Florida Court issued a third Order to Show Cause,

directing the Florida plaintiffs and Dr. Taitz to show cause no later thanNovember 27,2009, why sanctions should not be imposed for filing fraudulentdocuments with the Court. Exhibit I to RJN at pp. 76-77.

1Q I Id. at ~6.Id.. at ~7.

4830-2006-9384,1See Exhibit A attached to Taitz Decl. at ~7.

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D. Pursuant To The Florida Court's Order To Show Cause ReSanctions, Dr. Taitz Advised The Florida Court That Her SignatureWas Forged Because She Did Not Sign The First Amended MotionTo Substitute Counsel.On November 30, 2009, the Florida court entered Dr. Taitz' response to the

court's OSC re sanction. Exhibit J to RJN at pp. 79-86. Dr. Taitz reiterated that herpurported signature on the First Amended Motion to Substitute Counsel was aforgery. Id. at p. 81, Taitz Decl. at ~~7-9. She further explained that she suspectedplaintiff Charles E. Lincoln, III to have signed the pleading. Id. at p. 83.

On December 14, 2009, Dr. Taitz filed a Request for Judicial Notice regardingplaintiff Charles E. Lincoln, Ill's disbarment in the State of Florida. Exhibit K toRJN at pp. 88-103. On December 21,2009, Dr. Taitz filed Additional InformationTo Order To Show Cause regarding information from the State of Texas whereplaintiff Charles E. Lincoln, III allegedly signed pleadings on a behalf of a Texaspractitioner without authority. Exhibit L to RJN at pp. 105-110.

E. The Florida Court Set An Evidentiary Hearing For The OSC ReSanctions.

On December 29,2009, the Florida Court set an evidentiary hearing onJanuary 12, 20010 for its Order to Show Cause re sanctions (Exhibit M to RJN atp. 112), stating the matter was before the court sua sponte after receiving filings fromboth plaintiff Charles E. Lincoln, III and Dr. Taitz relative to the First AmendedMotion to Substitute Counsel. Jd . Both the Florida plaintiffs and Dr. Taitz wereordered the attend the hearing. Id. at p. 113.

On January 12,2010, the United States Magistrate Judge Lurana S. Snowconvened the hearing and indicated that the matter had been referred to her by"Judge Dimitrouleas, based on communications that he received indicating there mayhave been a pleading filed with a forged signature, which is really the only issue here4830-2006-9384.1 -5-MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE CASE NO. 8:10-CV-01573-AG (PLAX)



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today." Exhibit N to RJN at p. 117. At this hearing, Magistrate Judge Snowquestioned Dr. Taitz who testified that she did not sign the First Amended Motion toSubstitute Counsel but suspected plaintiff Charles E. Lincoln, III did. [d. at pp. 119-121.

During the course of the hearing, plaintiff Charles E. Lincoln, III and hiscounsel admitted that Mr. Lincoln signed the First Amended Motion to SubstituteCounsel. Id. at pp. 122, 123 & 126. Based on plaintiff Charles E. Lincoln, Ill'stestimony, Magistrate Judge Snow expressed her grave concerns that Mr. Lincolnwould duplicate an attorney's signature with no indication that he was signing onbehalf of that attorney. Id. at pp. 124-125 & 127-130.

F. Magistrate Judge Snow's Findings Of Fact And Conclusions OfLaw From The Evidentiary Hearing In The OSCRe Sanctions.

Based on the evidence, Magistrate Judge Snow found that plaintiff Charles E.Lincoln, III "prepared, signed and filed the First Amended Motion to SubstituteCounsel." Exhibit 0 to RJN at p. 145. Judge Snow further found that Mr. Lincoln,rather than sign his own name "for" Dr. Taitz, "utilized an approximation forDr. Taitz' signature." Id. At the time of filing, Judge Snow concluded that "plaintiffLincoln correctly or incorrectly believed he was authorized to prepare, sign and filethe pleading on behalf of Dr. Taitz." Id. Accordingly, Judge Snow found he did notdo so in an attempt to perpetuate a fraud on the court. Id.

Judge Snow concluded that the imposition of sanctions against the plaintiffs inthe Florida action was not warranted. Id. at p. 147. As to Dr. Taitz, Judge Snowconcluded that she was "not convinced that Dr. Taitz acted in bad faith in hercommunication with the Court." Id. at p. 146. Therefore, there was not a sufficientbasis to impose sanctions against Dr. Taitz. [d.

Finally, the parties and witnesses were ordered to pay their own attorney'sfees. ld. at p. 147.4830-2006-9384.1 -6-MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE

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1 3. THE ANTI-SLAPPSTATUTEGOVERNSTHIS DISPUTE2 A. The Anti-SLAPP Statute Requires DismissalOf Plaintiff's First3 Claim For MaliciousProsecution4 "Motions to strike a state law claim under California's anti-SLAPP statute may

be brought in federal court." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109(9th Cir. 2003). The anti-SLAPP statute was "enacted to allow for early dismissal ofmeritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). Thestatute "shall be construed broadly," Cal. Civ. Proc. Code 425. 16(a), andinterpreted "in a manner 'favorable to the exercise of freedom of speech, not itscurtailment. '" Briggs v. Eden Council for Hope & Opportunity, 19 Ca1.4th 1106,1119 (1999).

B. Defendants Have Met Their Burden Under The Anti-SLAPPStatuteUnder the anti-SLAPP statute, Defendants carry the initial burden to show that

Plaintiff s malicious prosecution claim arises from an "act" made in connection witha public issue or an issue of public interest, in furtherance of Defendants' right offree speech under the United States or California Constitutions. Cal. Civ.Proc. Code 425.16(b)(l). An "act" includes (1) "any written or oral statement or writing madebefore a ... judicial proceeding, or any other official proceeding authorized by law;[or] (2) any written or oral statement or writing made in connection with an issueunder consideration or review by a ... judicial body, or any other official proceedingauthorized by law." Cal. Civ.Proc. Code 425.l6(e)(1) & (2). Defendants meetthese standards in this case.

Under Section 425.15 subdivision (e)(l) and (2), "all communicative actsperformed by attorneys as part of their representation of a client in a judicialproceeding or other petitioning context are per se protected as petitioning activity bythe anti-SLAPP statute." Cabral v.Martins, 177 Ca1.AppAth 471,480 (2009); See,4830-2006-9384.1 - 7 -MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)TO ANTI-SLAP STATUTE



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e.g. Rusheen v. Cohen, 37 Cal.4th 1048, 1056 (2006) [anti-SLAPP statute protects"communicative conduct such as the filing, funding, and prosecution of a civilaction," including such acts when "committed by attorneys in representing clients inlitigation"] .

Here, Defendant Dr. Taitz' November 6, 2009 communication to the Floridacourt was in connection with an issue under judicial review: that being, the Floridacourt's denial of the First Amended Motion to Substitute Counsel. Exhibit F to RJN.In its order denying the First Amended Motion to Substitute counsel, the Floridacourt chided Defendant Dr. Taitz for failing to comply with local rules and forimproperly filing motions with the court. Id. In response, Defendant Dr. Taitzcommunicated with the Florida court, advising the court she did not file the FirstAmended Motion to Substitute Counsel and did not know who signed the motion.Exhibit G to RJN. Under Cabral, Defendant Dr. Taitz' communicative act to theFlorida court is protected as petitioning activity by the anti-SLAPP statute.

After receiving plaintiff Charles E. Lincoln, Ill's response to the Second Orderto Show Cause, the Florida court issued its Order to Show Cause re sanctions.Exhibit I to RJN. Pursuant to the Florida court's order, Defendant Dr. Taitz filedpleadings with the Florida court stating that she did not sign the First AmendedMotion to Substitute Counsel and that she suspected plaintiff Lincoln of doing so.Exhibits J, K, and L to RJN. Under Section 425.l6(e)(l), these communicative actsare protected as statements made before a judicial proceeding: that being; the Floridacourt's OSC re sanctions. Plaintiff complains that these statements, made pursuantto the court OSC, falsely charged him of forgery in an attempt to defame him. FAC6:25-7:1 & 7:6-6, Dkt. 5. Yet, statements made before a judicial proceeding orjudicial body are protected speech under the anti-SLAPP statute.

Accordingly, Defendants have met their burden under the anti-SLAPP statute,shifting the burden onto Plaintiff to show a reasonable probability he will prevail onhis malicious prosecution claim.4830-2006-9384.1 -8 -MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE CASE NO. 8:10-CV-01573-AG (PLAX)



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I C. Plaintiff Must Establish HeWill Prevail On HisMalicious2 Prosecution Claim.3 Since Defendants have met their initial anti-SLAPP burden, the burden shifts-4 to Plaintiff - to establish, "by competent and admissible evidence," a reasonable5 probability that he will prevail on his malicious prosecution claim at trial. Macias v.6 Hartwell, 55 Cal.AppAth 669,675 (1997) (Emphasis added). Plaintiff "cannot rely7 on the allegations of the complaint, but must produce evidence that would be8 admissible at trial.' HMS Capital, Inc. v. Lawyers Title Co., 118 Cal.AppAth 204,9 212 (2004). The Court "should grant the (anti-SLAPP] motion if, as a matter of law,10 the defendant's evidence supporting the motion defeats the plaintiffs attempt to11 establish evidentiary support for the claim." Wilson v . Parker, Cover & Chidester,12 28 Cal.4th 811, 821 (2002).1314 4. PLAINTIFF CANNOT SHOW THAT HE WILL PREVAIL ON HIS15 MALICIOUS PROSECUTION CLAIM.16 In order to establish a claim for malicious prosecution of either a criminal or17 civil proceeding, a plaintiff must demonstrate "that the prior action (1) was18 commenced by or at the direction of the defendant and was pursued to a legal19 termination in [plaintiffs favor]; (2) was brought without probable cause ... ; and (3)20 was initiated with malice ... " Merlet v.Rizzo, 64 Ca1.App.4th 53, 58 (1998); citing21 Sheldon Appel Co. v.Albert & DUker, 47 Ca1.3d 863,871-872 (1989). California22 courts have concluded that subsidiary procedural actions cannot support a claim for23 malicious prosecution. Merlet, 64 Cal.AppAth at 59-60; see also Lossing v. Superior24 Court, 207 Cal.App.3d 635 (1989) [An application for an order to show cause25 regarding contempt does not give rise to a malicious prosecution claim.].26 In order for Plaintiff to prevail in his malicious prosecution claim, he must27 demonstrate that the OSC re sanction hearing was an independent proceeding from28 the Florida Action. Further, Plaintiff must demonstrate that Defendants commenced

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the OSC proceeding in the Florida Action. Failure to demonstrate Defendantscommenced an independent action renders Plaintiff s malicious prosecution claimmeritless.

A. PlaintifFs Claim For Malicious Prosecution Fails As A Matter OfLaw Because The OSC Re Sanctions Was A Subsidiary ProceduralAction To The Pending Florida Action.

California courts have determined that an action "which is a continuation of anexisting proceeding" does not give rise to a malicious prosecution claim. ld. "Amalicious prosecution claim cannot be grounded upon actions taken within pendinglitigation." Adams v. Superior Court, 2 Cal.AppAth 521, 528 (1999). The Floridacourt's OSC re sanctions was a proceeding within the pending Florida Action. TheFlorida court simply initiated, sua sponte, a subsidiary procedural action todetermine whether fraudulent documents had been filed in the action before thecourt.

The Florida plaintiffs, including Mr. Lincoln, were ordered to show cause whythe Florida defendant's motion to dismiss should not be granted. In response to thisCourt's order, Defendant Dr. Taitz filed on behalf of the Florida plaintiffs the Motionto Substitute Counsel which was denied without prejudice. The Florida plaintiffswere given until October 30, 2009 to refile their motion. After the Florida courtdenied the First Amended Motion to Substitute Counsel and provided notice to allparties, Dr. Taitz advised the Florida court she did not file the pleading. Shortlythereafter, the Florida court, sua sponte, set an Order to Show Cause re sanctions. Atno time during the Florida Action did Defendant Dr. Taitz commence an independentaction against Plaintiff.

Plaintiff s claim centers on the allegation that Defendants "falsely chargedPlaintiff of forging her signature (or signing without permission) on certain motionsfiled in the United State District Court for Southern District of Florida in the Court of4830-2006-9384, I -10-MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE CASE NO. 8:1O-CV-01573-AG (PLAX)



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Judge William P. Dimitrouleas." However, charges of forgery came after the FloridaCourt issued an Order to Show Cause re sanctions when Defendant Dr. Taitz wasrequired to defend herself Defensive actions cannot be the basis for a maliciousprosecution claim. Meriet, 64 Cal.AppAth at 59. The evidence is clear that Plaintiffcannot demonstrate that Defendants commenced an independent proceeding againsthim. The OSC re sanctions was a subsidiary proceeding which arose out of thepending Florida Action.

Without the commencement of an independent action) Plaintiff s maliciousprosecution claim fails as a matter of law.

B. Plaintiff Cannot Demonstrate That He Obtained A FavorableResult From The OSC Re Sanctions.

The Florida court's OSC re sanctions applied to both the Florida plaintiffs andDr. Taitz. After the evidentiary hearing, Magistrate Judge Snow found, based onPlaintiff Charles E. Lincoln) Ill's admission, that he signed an approximation ofDr. Taitz' signature. Judge Snow further concluded that he did so, believing"correctly or incorrectly') he had authority to do so. Based on these factual findings)Judge Snow concluded that Plaintiff did not intend to defraud the Florida court andthat Defendant Dr. Taitz did not act in bad faith in her communications with thecourt. Judge Snow, therefore) did not issue sanctions and ordered each party to paytheir own attorney's fees. There was no favorable termination of the proceedings forany of the parties other than they all avoided sanctions.

Without a termination of the proceedings in Plaintiff s favor, he cannot pursuehis malicious prosecution claim.I I I

I I I

I I I

I I I

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C. Plaintiff Cannot Demonstrate That DefendantsActedWith MaliceRegarding The OSC Re Sanctions.

If this Court considers the OSC hearing an independent action, Plaintiff cannotdispute that Magistrate Judge Snow made a conclusion of law that DefendantDr. Taitz did not act in bad faith in her communications with the Florida court.Judge Snow's findings and conclusions of law were based on the affidavits filed withthe court and oral testimony at the January 12, 2010 hearing. Her findings andconclusions preclude Plaintiff from relitigating the issues centered on Defendants'intent and whether they acted with malice.

The doctrine of collateral estoppel precludes relitigation of issues argued anddecided in prior proceedings. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd.,58 Ca1.2d 601, 604 (1962). To apply the doctrine, several threshold requirementsmust be met which are: (1) the issue sought to be precluded from relitigation must beidentical to that decided in a former proceeding; (2) this issue must have beenactually litigated in the former proceeding; (3) it must have been necessarily decidedin the former proceeding; (4) the decision in the former proceeding must be final andon the merits; and (5) the party against whom preclusion is sought must be the sameas, or in privity with, the party to the former proceeding. See People v . Sims,32 Ca1.3d 468, 484 (1982). The party asserting collateral estoppel bears the burdenof establishing these requirements. See, e.g., Vella v . Hudgins, 20 Ca1.3d 251, 257(1977).

Here, the issue of malice was litigated during the OSC hearing re sanctions inthe Florida Action. The malice element of the malicious prosecution tort goes to thedefendant's subjective intent in initiating the prior action. Sheldon Appel, 47 Ca1.3dat p. 874. Judge Snow adjudged that the evidence was insufficient to find DefendantDr. Taitz acted in bad faith in her communications with the Florida court. Themalice required in an action for malicious prosecution is not limited to actualhostility or ill will, but exists when the proceedings are instituted primarily for an4830-2006-9384.1 -12-MOTION TO DISMISS PURSUANTTO ANTI-SLAP STATUTE CASE NO. 8:1O-CY-01573-AG (PLAX)



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improper purpose. Northrup v. Baker, 202 Cal. App. 2d 347,355 (1962); citingAlbertson v . Raboff, 185 Cal.App.2d 372 (1960). Defendants argue that they did notcommence an independent proceeding in the Florida Action. In the event the courtwishes to consider the issues of malice, Magistrate Judge Snows adjudged thatDefendants' communications with the Florida court were not for an improperpurpose. The lack of bad faith defeats malice.

Without the element of malice, Plaintiff's malicious prosecution claims fails asa matter of law.

5. CONCLUSIONBased on the foregoing, Defendants respectfully request that this Court grant

the motion to strike Plaintiff s first claim for malicious prosecution. In the event thisCourt grants Defendants motion, Defendants will move the court to seek theirattorney's fees.

DATED: January 6,2011Respectfully submitted,LEWIS BRISBOIS BISGAARD & SMITH LLP

By /s/ William E. PallaresWilliam E. PallaresAttorneys for Defendants LAW OFFICE OFORLY TAITZ and DR. ORL Y TAITZ, ESQ.,D.D.S., J.D.

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SEE ATTACHED SERVICE LIST

1 FEDERAL COURT PROOF OF SERVICELincoln v. Daylight Chemical - File No. 50012-23272 STATE OF CALIFORNIA~ COUNTY OF LOS ANGELES3 At the time of service, I was over 18 years of age and not a party to the action.4 My business address is 221 North Figueroa Street, SUIte 1200, Los Angeles,California 900 12. I am employed in the office of a member of the bar of this Court5 at whose direction the service was made.6789 I served the documents on the following persons at the following addresses(including fax numbers and e-mail addresses, If applicable):10111213 []

On January ~ 2011f I served the following documenus): NOTICE OFMOTION AND MuTIOr~ OF DEFENDANTS LAW OFFICE OF ORLY TAITZAND DR. ORLY TAITZ~ ES8'1 D.D.S., J.D. TO STRIKE PLAINTIFF'S FIRSTCLAIM FOR RELIEF PURS ANT TO SECTION 425.16 OF THE CALIFORNIACODE OF CIVIL PROCEDURE

The documents were served by the following means:(BY U.S. MAIL) I enclosed the documents in a sealed envelope or packageaddressed to the persons at the addresses listed above and I deposited thesealed envelope or package with the U.S. Postal Service, with the postage fullyprepaid.

15 [X] (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, I electronicallyfiled the documents with the Clerk of the Court using the CMIECF system,16 which sent notification of that filing to the persons hsted above.17 I declare under penalty of perjury under the laws of the United States ofAmerica that the above is true and correct.1819202122232425262728

Executed on January 6,2011, at Los Angeles, California.

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SERVICE LIST

3 Jonathan A. Ross, Esq.Arnold S. Levine, Esq.4 Mark I. Melo, Esq.Bradley & Gmelich5 700 North Brand Boulevard, 10th FloorGlendale, CA 91203-14226 Tel: (818) 243-5200Fax: (818) 243-52667 Attorneys for Defendants DaylightChemical Information Systems,lnc.S and Dr. YosefTaitz

91011121314151617181920,21222324252627

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Dr. Orly Taitz, Esq.29839 Santa Margarita Parkway, #100Rancho Santa Margarita, CA 92688Tel: (949) 683-5411Fax: (949)766-7603orly. [email protected] for efend Our FreedomsFoundation, Orly Taitz, Inc.,Appealing Dentistry

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SEE ATTACHED SERVICE LIST

FEDERAL COURT PROOF OF SERVICELincoln v. Daylight Chemical - File No. 50012-2327STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

345

At the time of servicet J was over 18 years of age and not a party to the action.My business address is 2211'wrth Figueroa Street Suite 1200, Los Angeles,California 90012. I am employed in the office of'a member of the bar of this Courtat whose direction the service was made.

6 On January~ 2011, I served the following documentis): NOTICE OFMOTION AND MvTION OF DEFENDANTS LAW OFFICE OF ORLY TAITZ7 AND DR. ORLY TAITZ, ES8'1 D.D.S., J.D. TO STRIKE PLAINTIFF'S FIRSTCLAIM FOR RELIEF PURS ANT TO SECTION 425.16 OF THE CALIFORNIA8 CODE OF CIVIL PROCEDURE9101112

Ierved the documents on the following persons at the following addresses(including fax numbers and e-mail addresses, If applicable):

The documents were served by the following means:[X] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package13 addressed to the persons at the addresses listed above and I deposited thesealed envelope or package with the U.S. Postal Service, with the postage fullyprepaid.

(BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, Ilectronicallyfiled the documents with the Clerk of the Court using the CM/ECF system,which sent notification of that filing to the persons hsted above.Ideclare under penalty of perjury under the laws of the United States ofAmerica that the above is true and correct.Executed on January 6, 2011, at Los Angeles, California.

Laurie A. Wood

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1 SERVICE LIST23 Charles Edward Lincoln, III Phi1~ J. Berg603 Elmwood Place, Suite 6 555 ndorra Glen Court4 Suite 124 Austin, TX 78705 Lafabette Hill, PA 1944 -2531Tel: 512-968-2500 phi1j [email protected] charles.lincoln mrocketmai1.comPlaintiff in Pro er Courtesy Copy678910111213141516171819202122232425262728


LINCOLN v DAYLIGHT CHEMICAL, et al. - 18 - NOTICE OF MOTION AND MOTION to Strike Plaintiff's First...

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Transcript of LINCOLN v DAYLIGHT CHEMICAL, et al. - 18 - NOTICE OF MOTION AND MOTION to Strike Plaintiff's First...