liberi v doff (appeal - 9th circuit) appellant's (taitz) opening brief - transportroom.10.0
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Case No. 11-56164
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Lisa Liberi, et al.,
Plaintiffs/Appellees,
v.
Orly Taitz, Defend Our FreedomsFoundations, Inc., et al.,
Defendants/Appellants.
_________________________________
))))))))))))))
Appeal from the United StatesDistrict Court for the Central
District of California
Civil Action No.:8:11-CV-00485-AG (AJWx)
OPENING BRIEF BY APPELLANT,DEFEND OUR FREEDOMS FOUNDATION
Dr. Orly Taitz, , esq29839 Santa Margarita ste 100Rancho Santa Margarita CA 92688949-683-5411 Fax [email protected] for Defendant/Appellant,
TABLE OF CONTENTS
SECTION
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PAGENO.
Introduction .......................................................................................................................1
Statement of Jurisdiction ....................................................................................................4
Issues Presented .................................................................................................................5
Statement of the Case/Procedural History .............................................................................6
A. Parties Background and Related Litigation ...........................................6
1. Summary of Orly Taitz s and Philip J. Berg s Activities ....6
2. Lisa Liberi
s and Lisa M. Ostella
s Background andRelationships to Philip J. Berg .....................................................8
B. Plaintiffs Complaint, Appellants anti-SLAPP Motion to
Strike and Denial of Such Motion ..........................................................9
Statement of Facts ..............................................................................................................10
A. Summary of Appellants Alleged Acts in Furtherance of their
Rights of Petition and Free Speech in Connection with
Public Issues .........................................................................................10
Summary of Argument .......................................................................................................12
I. Standard of Review .........................................................................................13
A. De Novo Standard of Review Regarding Denial of an
anti-SLAPP Motion to Strike Under California Code of
Civil Procedure Section 425.16 ..............................................................13
B. Legal Standards Applicable to an anti-SLAPP Motion to
Strike Under California Code of Civil Procedure
Section 425.16 .....................................................................................13
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II. The District Court, as a Matter of Law, Erred in Concluding that
Appellants Did Not Meet Their Burden of Proof Under Section
425.16(b)(1) to Show That Plaintiffs Complaint Arises Out of
Appellants Acts in Furtherance of Their Rights of Petition
Or Free Speech in Connection with a Public Issue ............................................16
A. Appellants Met Their Burden Under Section 425.16(b)(1)
Where Plaintiffs Complaint Clearly Arises Out of
Appellants Alleged Acts in Furtherance of Their Rights
Of Petition and Free Speech in Connection with PublicIssues ..................................................................................................16
1. Applicable Legal Standards Under Section 425.16(e) ............16
a. Appellants Right of Petition ............................................17
b. Appellants Right of Free Speech ......................................18
2. Appellants Alleged Acts in Furtherance of Their
Rights of Petition and Free Speech in Connection
With Public Issues ......................................................................20
a. Appellants Allegedly Made Written or Oral
Statement[s] or Writing[s] Made Before a
Legislative, Executive, or Judicial Proceeding,
Or Any Other Official Proceeding Authorized
By Law.... as Required by Section
425.16(e)(1) .....................................................................20
b. Appellants Allegedly Made Written or Oral
Statement[s] or Writing[s] Made in Connection
With an Issue Under Consideration or Review
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by a Legislative, Executive, or Judicial Body,
or any other Official Proceeding Authorized
by Law.... as Required by Section
425.16(e)(2) .....................................................................22
c. Appellants Allegedly Made Written or Oral
Statement[s] or Writing[s] Made in a Place
Open to the Public or a Public Forum in
Connection with an Issue of Public Interest...
as Required by Section 425.16(e)(3) .................................23
. Appellants Allegedly Engaged in Any Other
Conduct in Furtherance of the Exercise of
Constitutional Right of Petition or the
Constitutional Right of Free Speech in
Connection with a Public Issue or an Issue of
Public Interest as Required by Section
425.16(e)(4) .....................................................................27III. The District Court, as a Matter of Law, Erred In Concluding that
Plaintiffs Met Their Burden of Proof Under California Code of
Civil Procedure Section 425.16(b)(1) to Demonstrate the
Probability of Prevailing as Against Appellants .................................................28
A. As a Matter of Law, Plaintiffs Did Not Meet Their Burden
Under Section 425.16(b)(1) to Demonstrate the LegalSufficiency of Their Complaint Where They Made a
Judicial Admission That The Complaint was Legally
Insufficient ..........................................................................................28
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1. Plaintiffs Admitted that Their Complaint Was
Legally Insufficient and, Thus, as a Matter of Law,
Did Not Meet Their Burden Under Section
425.16(b)(1) ...............................................................................282. Plaintiffs Failed to Meet Their Burden to
Demonstrate that Their Complaint and Each of its
Claims were Legally Sufficient Under Section
425.16(b)(1) ...............................................................................30
a. Plaintiffs Count One, for Violation of the
First and Fourteenth Amendment [sic] of the
United States Constituion [sic], is LegallyInsufficient .......................................................................30
b. Plaintiffs Count Two, For Defamation Per
Se , Slander and Libel, is Legally Insufficient ...........31
c. Plaintiffs Count Three, for False-Light
Invasion of Privacy, is Legally Insufficient ...............32
d. Plaintiffs Count Four, for Harrassment,
is Legally Insufficient as well as Not Being a
Legally-cognizable Claim ..................................................32
e. Plaintiffs Count Five, for False
Designations and Descriptions of Facts,
is Legally Insufficient ........................................................33
f. Plaintiffs Count Six, for Injunctive Relief,
is Legally Insufficient and is Not a Separate
Claim for Relief ................................................................34
B. Plaintiffs Did Not Meet Their Burden of Proof Under
Section 425.16(b)(1) to Present Competent and Admissible
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Evidence Sufficient to Sustain a Judgment in Their Favor
on the Complaint ..................................................................................35
IV. PLAINTIFFS COULD NOT DEMONSTRATE PROBABILITY OFPREVAILING, AS THERE WAS NEVER ANY JURISDICTION IN THE
FEDERAL COURT.......................................................................................... 37
TABLE OF AUTHORITIES Federal Cases
American Title Ins. Co. v. Lovelaw Corp. (9 th Cir. 1988)861 F.2d 224, 226 ..............................................................................................................29, 32, 33, 35 Batzel v. Smith (9 th Cir. 2003)333 F.3d 1018, 1026 ...........................................................................................................4
California Motor Transport Co. v. Trucking Unlimited (1972)404 U.S. 508, 510 ..............................................................................................................18
Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave. (1st Cir. 2002)284 F.3d 302 ......................................................................................................................34
Colligan v. Activities Club of New York, Ltd (2nd Cir. 1971)442 F.2d 686 ......................................................................................................................34
Erie Railroad Co. v. Tompkins (1938)304 U.S. 64, 78 ..................................................................................................................31, 32, 33, 35
Gertz v. Robert Welch, Inc. (1974)418 U.S. 323, 339-40 ..........................................................................................................19
Mindys Cosmetics, Inc. v. Dakar (9 th Cir. 2010)611 F.3d 590, 595 ..............................................................................................................4
N.A.A.C.P. v. Button (1963)371 U.S. 415, 445 ..............................................................................................................19
Parkway Baking Co. v. Freihofer Baking Co. (3rd Cir. 1958)255 F.2d 641 ......................................................................................................................34
Rendell-Baker v. Kohn (1982)457 U.S. 830, 837 ..............................................................................................................9, 30
Ruvalcaba v. City of Los Angeles (9 th Cir. 1995)
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64 F.3d 1323, 1328 ............................................................................................................36
Shelley v. Kraemer (1948)334 U.S. 1, 13 ....................................................................................................................9, 30
Troy Group, Inc. v. Tilson (2005)
364 F.Supp.2d 1149, 1153 ..................................................................................................24 United States v. Gilbert (9 th Cir. 1995)57 F.3d 709, 711 ................................................................................................................36
State Cases
Action Apartment Assn., Inc. v. City of Santa Monica (2007)41 Cal.4th 1232, 1250-51 ....................................................................................................18
Ampex Corp. v. Cargle (2005)128 Cal.App.4th 1569 .........................................................................................................24
Annette F. v. Sharon S. (2004)119 Cal.App.4th 1146, 1160 ................................................................................................16, 24
Averill v. Superior Court (1996)42 Cal.App.4th 1170, 1175 .................................................................................................17
Braun v. Chronicle Publishing Co. (1997)52 Cal.App.4th 1036, 1043 .................................................................................................14, 15, 16
Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1113, 1115, 1117-18 .................................................................................17, 21, 23
Church of Scientology v. Wollersheim (1996)42 Cal.App.4th 628, 651 .....................................................................................................25 City of Cotati v. Cashman (2002)29 Cal.4th 69, 78 ...............................................................................................................14
City of South Pasadena v. Department of Transportation (1994)29 Cal.App.4th 1280, 1293 .................................................................................................34
ComputerXpress, Inc. v. Jackson (2001)93 Cal.App.4th 993, 1004 ...................................................................................................15
Damon v. Ocean Hills Journalism Club (2000)
85 Cal.App.4th 468, 472.....................................................................................................
14, 24, 26 Equilon Enterprises v. Consumer Cause, Inc. (2002)29 Cal.4th 53 ......................................................................................................................25
Kibler v. N. Inyo County Local Hospital Dist. (2006)39 Cal.4th 192, 196-98 .......................................................................................................21, 23
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Martinez v. Metabolife Internat, Inc. (2003)113 Cal.App.4th 181, 187 ...................................................................................................15
Matson v. Dvorak (1995)40 Cal.App.4th 539, 548 .....................................................3, 14, 15, 26, 28, 29, 32, 33, 34, 35, 37
McCoy v. Hearst Corp. (1986)42 Cal.3d 835, 859 .............................................................................................................18, 19
Meister v. Regents of University of California (1998)67 Cal.App.4th 437, 446 .....................................................................................................31
M.G. v. Time Warner, Inc. (2001)89 Cal.App.4th 623, 629 .....................................................................................................26
Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLP (2005)133 Cal.App.4th 658, 672 ...................................................................................................15
Rivero v. AFL-CIO (2003)105 Cal.App.4th 913, 923-24 ..............................................................................................25
Rosenaur v. Scherer (2001)88 Cal.App.4th 260, 274 ...........................................................................12, 28, 29, 32, 33, 34, 35, 37
Seeling v. Infinity Broadcasting Corp. (2002)97 Cal.App.4th 798, 807 .....................................................................................................17
Sipple v. Foundation for Nat. Progress (1999)71 Cal.App.4th 226, 236-37 .................................................................................................21, 23, 25
Taus v. Loftus (2007)40 Cal.4th 683, 713-14 .......................................................................................................28, 29
Thomas v. Quintero (2005)125 Cal.App.4th 624-25, 635 ..............................................................................................13, 28
Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003)106 Cal.App.4th 1219, 1232-33 ..........................................................................................14, 27, 28
Federal Statutes
28 U.S.C. 1332 .................................................................................................................4 Federal Rule of Evidence 103 .............................................................................................36
State Statutes
Code of Civil Procedure 425.16 .........................................................................................12, 15, 19, 37Code of Civil Procedure 425.16(a) .....................................................................................13, 14, 17, 37Code of Civil Procedure 425.16(b) .....................................................................................13, 14 Code of Civil Procedure 425.16(b)(1)...........................................................................................2, 3, 5, 6, 12, 15, 16, 28, 29, 32, 33, 34, 35, 36
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Code of Civil Procedure 425.16(e) .............................5, 12, 14, 16, 17, 18, 21, 22, 23, 26, 27Code of Civil Procedure 425.16(e)(1) .................................................................................5, 20, 21, 22Code of Civil Procedure 425.16(e)(2) .................................................................................5, 22, 23Code of Civil Procedure 425.16(e)(3) ........................................................................5, 24, 25, 26, 27Code of Civil Procedure 425.16(e)(4) .................................................................................5, 27 Code of Civil Procedure 425.16(j) ......................................................................................4Code of Civil Procedure 527.6 ..........................................................................................33Code of Civil Procedure 904.1 ..........................................................................................4 Civil Code 1798 ...............................................................................................................30Civil Code 1798.3(a) ........................................................................................................31Civil Code 1798.45 ...........................................................................................................31
Introduction
This case arises out of an ongoing dispute involving the political dissident movement, including a
component known as the Birther Movement,by those challenging the qualifications of Barack Obama to
hold the office of President of the United States of America. Defendant and Appellant, ORLY TAITZ (Taitz
a political dissent leader who, individually and through Defendant and Appellant, DEFEND OUR FREEDOM
FOUNDATIONS, INC. (DOFF) (collectively Appellants), has been and remains the leader of this
movement.
Litigation is one of this movements tools to advance its goals, including several cases involving
Birther causes. [See, concurrently-filed Request for Judicial Notice (RJN).] Such litigation is a form of
petition for redress of grievances under the United States Constitution, Article I. Plaintiffs acknowledge
Appellants exercise of their right of petition regarding Taitz filingcomplaints... on behalf of Alan Keyes and
other Plaintiffs against the California Secretary of State and other Defendants regarding the Barry Soetoro
a/k/a Barack H. Obama citizenship issues. [Volume 1, Excerpts of Record (ER), 258.]
Plaintiff and Appellee, PHILIP J. BERG (Berg), is also involved in the political dissident movement
For example, Berg has filed a case challenging President Obamas qualifications to be President, and claims t
carry the mantle of the Birther Movement through www.obamacrimes.com.[1 ER, 297; RJN, Exhibit 3.]
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Berg, assisted by Plaintiffs and Appellees, LISA LIBERI (Liberi) and LISA M. OSTELLA (Ostella), hav
interfered with Appellants websites and internet blogs, created misleading and competing websites such as
defendourfreedoms.net, and diverted donations from DOFF to entities controlled
by Plaintiffs. Plaintiffs have interfered with Appellants political fundraising activities, crucial to fund litigation
and other activities in support of this movement.
To combat Plaintiffs wrongful acts, Appellants have exposed their wrongful tactics to the
movements followers including to reveal that Liberi is a convicted felon who cannot be allo wed to control
donations intended to advance the goals of the movement. The terms of Liberis parole forbid her from havingany involvement with such fundraising. Appellants have informed government authorities of Plaintiffs
actions and sought redress for same, including from the United States Supreme Court, Federal Bureau of
Investigation, and California Attorney General. Appellants have sought revocation of Liberis parole through
the San Bernardino County, California District Attorney.
At all times, Appellants have acted as necessary whistleblowers against Plaintiffs wrongful acts
which include diversion of political donations, have sought redress of their grievances from the federal and
California governments, and have exposed Plaintiffs corruptionof such movement. What Plaintiffs
mischaracterize as defamation is in fact Appellants exercise of their constitutional rights of petition and free
speech on issues of great public interest, including as to leadership of the Birther Movement challengingthe
qualifications of President Obama to hold the highest office in the United States.
Appellants have acted squarely within the protections of Californias anti-SLAPP statute in pursuing
acts in furtherance of the person's right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue.... CaliforniaCode of Civil Procedure
425.16(b)(1). (Unless otherwise noted, all statutory references herein are to the CaliforniaCode of Civil
Procedure .) The essence of Appellants alleged actions involve the right to speak on political matters,
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regarded under the anti-SLAPP statute as the quintessential subject of our constitutional protections of the
right of free speech.Matson v. Dvorak , 40 Cal.App.4th 539, 548 (1995).
Plaintiffs have but one purpose -to silence Appellants whistleblowing in furtherance of the
political dissident movementby chilling Appellants exercise of their constitutional rights of petition and free
speech. Appellants in their anti-SLAPP motion clearly demonstrated that their alleged acts arose from
petitioning and free speech protected by the anti-SLAPP statute. Plaintiffs improper motives herein include to
prevent Liberis criminal record from becoming known to this movements followers, which would in turn
deter followers from donating to Berg and his website, as well as to prevent revocation of Liberis probation.
Plaintiffs frivolous case is intended to drain, and has drained, Appellants financially and emotionall
thus accomplishing Plaintiffs goal to diminish Appellants standing and influence in this political movementPlaintiffs action has resulted inthe evils which the anti-SLAPP statute was enacted to prevent.
Plaintiffs failed to meet their burden to demonstrate a probability of prevailing on their Complaint
against Appellants as required by 425.16(b)(1). Notably, Plaintiffs admitted that their Complaint was legally
insufficient and, thus, that they could not satisfy the first prong of their burden. Plaintiffs also failed to suppor
their (admittedly insufficient) claims with competent and admissible evidence, thus failing to satisfy the
second prong of their burden.
As demonstrated herein, no legal or factual basis supports the District Courts denial of Appellants
anti-SLAPP motion. The order denying such motion should therefore be reversed.
Statement of Jurisdiction
On May 4, 2009, Plaintiffs and Appellees, Berg, Liberi, Ostella, THE LAW OFFICES OF PHILIP J. B
and GO EXCEL GLOBAL (collectively Plaintiffs), commenced this action in the United States District Co
for the Eastern District of Pennsylvania (Civil Action No. 09-1898;Hon. Eduardo C. Robreno, Judge ).
Jurisdiction herein is predicated upon diversity of citizenship. 28 U.S.C. 1332. [1 ER, 255.]
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On June 3, 2010, the District Court in Pennsylvania severed the action and transferred the claims to
each Defendants home jurisdiction, with a portion of the action being transferred to the United States Distric
Court for the Central District of California (Civil Action No.No. 8:11-CV-00485-AG (AJWx); Hon.
Andrew J. Guilford, Judge ). [1 ER, 4.]
On June 14, 2011, the District Court denied Appellants joint anti-SLAPP
motion to strike the Complaint. [1 ER, 4-9.] On June 27, 2011, DOFF filed its Notice
of Appeal from the subject order. [1 ER, 3.] On July 13, 2011, Taitz filed her Notice of
Appeal from the order. [1 ER, 1-2.]
Denial of an anti-SLAPP motion under California law is an appealable final decision within the
meaning of 28 U.S.C. 1291.Batzel v. Smith , 333 F.3d 1018, 1026 (9th Cir. 2003).Mindys Cosmetics, Inc. v.Dakar , 611 F.3d 590, 595 (9th Cir. 2010). In California state courts, denial of an anti-SLAPP motion is
immediately appealable. CaliforniaCode of Civil Procedure 425.16(j) and 904.1.
Issues Presented
The issues presented herein are:
1. Whether Appellants made a threshold showing that their alleged acts arose from protected
activity, specifically any act of that person in furtherance of the person's right of petition or free speech under
the United States Constitution or the California Constitution in connection with a public issue.... under
425.16(b)(1).
Relatedly, by application of the definition of "act in furtherance of a person's right of petition or free
speech under the United States or California Constitution in connection with a public issue" of 425.16(e),
the issues presented include:
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a. Whether Appellants made any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.... Section
425.16(e)(1).
b. Whether Appellants made any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law.... Section 425.16(e)(2).
c. Whether Appellants made any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public interest.... Section 425.16(e)(3); or
d. Whether Appellants engaged in any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in connection with a public issueor an issue of public interest. Section 425.16(e)(4).
2. Whether Plaintiffs met their burden to demonstrate a probability of prevailing on their
Complaint as against Appellants as required by 425.16(b)(1), by demonstrating the legal sufficiency of the
Complaint and establishing facts via competent and admissible evidence to sustain a favorable judgment.
Statement of the Case/Procedural History
A. Parties background and related litigation
1. Summary of Orly Taitzs and Philip J. Bergs activities
Judge Robreno succinctly summarized Plaintiffs and Appellants history in his December 23, 2010
Memorandum:In sum, Plaintiffs and Defendants are part of the birthermovement, whichis comprised of individuals who believe that President Obama is ineligible
to be President of the United States because he was born in Kenya. At onetime, Plaintiffs and Defendants worked together to attempt to provePresident Obamas illegitimacy but infighting among them led to thislawsuit.[1 ER, 238.]
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Judge Robreno correctly noted: Some of these parties have a long and complicated litigation history.
See e.g., Berg v. Obama, 586 F.3d 234 (3d Cir. 2009)... This litigation appears to be part of this overall disput
among the parties. [1 ER, 238, fn. 1.] Plaintiffs wish to silence Appellants whistleblowing activities toward
advancement of this movement, including as to Plaintiffs diversion of donations from the movements
followers, by chilling Appellants exercise of their rights of petition and free speech.
A brief history of the parties involvement is necessary to understand their relationships, and reveals
Plaintiffs improper motives driving this case. Taitz has been and remains the leader of this movement, both
individually and through various websites and blogs, including through DOFF and its former website. Taitzs
primary website is www.orlytaitzesq.com.(RFN, Exhibit 1.) It is the
Worlds Leading Obama Eligibility Challenge Web Site. Donations from followers of this movement are
necessary to fund its petition and free speech activities, including litigation advancing the causes championed
by Appellants. Taitz has been featured globally in thousands of television, radio and newspaper interviews
and documentaries.
Plaintiffs scheme forced Taitz to abandon DOFFs original website, which included their creation of
misleading websites such as defendourfreedoms.net designed to confuse the movements followers and
siphon-off donations that otherwise would be received by DOFF. (This topic, including Taitzs alleged
statements to defend her rights to express her political views through DOFF, is a subject of Plaintiffs
Complaint discussed below.)
Appellants subject website lists numerous cases brought by Taitz advancing the political dissident
movement. One example is Keyes, et al. v. Barack H. Obama, et al., U.S.D.C., Central District of California C
No. SA-CV-00082 (RFN, Exhibit 2.) Taitz represents all Plaintiffs in such case, including former Presidential
candidate Alan Keyes. Appeal in such case is pending before the Ninth Circuit Court of Appeals (Judges
Berzon, Fisher and Pregerson).
Berg purports to occupy a leadership position in this movement. For example, he maintains
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www.obamacrimes.com.(RFN, Exhibit 3.) Berg touts himself as the first Attorney who filed suit against
Barack H. Obama on August 21, 2008 challenging Obamas lack of Constitutionally Eligibility to serve as
President of the United States.... (RFN,Exhibit 3.) Berg solicits donations to offset the cost of the cases
concerning the eligibility of B.H. Soetoro/Obama.... (RFN,Exhibit 3.)
Like Taitz, Berg has pursued this movements agenda via litigation. For example, Berg has filed cases
challenging President Obamas eligibility. (See,Berg v. Obama, U.S.D.C., District of Columbia Case No. 1:08-
cv-01933; RFN, Exhibit 4.)
2. Lisa Liberis and Lisa M. Ostellas background and relationships to Philip J.Berg
Liberi is a convicted felon working with Berg as a paralegal and in connection with his activities in th
political dissident movement. Appellants submitted with their motion documents evidencing Liberis crimina
record, including convictions for grand theft, forgery, and forgery of an official seal under Californias Penal
Code. At least twenty-three criminal charges were brought against Liberi for multiple felonies. [1 ER, 191-
204.]
Liberi was sentenced to thirty-six months supervised probation on various terms, including the
following:Not maintain a checking account or complete or endorse any checks unlessmade payable to you and not have any blank checks in your possession without permission of the probation officer... Neither possess nor use anycredit card without permission of the probation officer... The Defendant isnot to file any lawsuit/legal action without prior contact with probationofficer.... [1 ER, 196-197.]
One of Plaintiffs improper purposes herein was to silence Appellants whistleblowing to the
political dissident movement about Liberis criminal record, her terms of probation, and violation of such
terms in connection with her involvement in diverting donations away from Appellants and fundraising
activities for Berg. Plaintiffs were fearful that if such information became publicly known it would make
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donations to Berg impossible, as no rationale follower of this movement would place money in the hands of a
convicted felon such as Liberi.
Liberis personal improper motivation herein was to prevent revocation of her probation, which
would result in her serving an eight year prison sentence, as a result of Appellants whistleblowing and
cooperation with officials toward revocation of such probation.
Ostella formerly worked as a webmaster for Taitzin connection with DOFFs former website. Ostella
is responsible for interfering with Appellants websites and internet blogs, creating misleading websites and
diverting donations from DOFF to entities controlled by Plaintiffs. [1 ER, 259.]
B. Plaintiffs Complaint, Appellants anti-SLAPP motion to strike and denial of such
motionPlaintiffs filed their 81-page Complaint on May 4, 2009. [1 ER, 252-335 .] Although it is largely
incomprehensible, the gravamen of the Complaint appears to be defamation and invasion of privacy. The
Complaint is not a required short and plain statement of Plaintiffs claims in violation of Fed. R. Civ. P. 8(a
It is blatantly improper in substance and format, containing numerous instances of evidence (e.g., emails and
photographs) being pasted into the pleading, and which are replete with frequent profanity and Plaintiffs
irrelevant editorial commentary.
Plaintiffs admitted that their Complaint was legally insufficient. [1 ER, 125: 5-8.] Representative of
Plaintiffs improper claims is the Complaints Count One for Violation of the First and Fourteenth
Amendment to the United States Constitution. [1 ER, 311-316.] As a matter of hornbook law, neither the
First nor Fourteenth Amendment apply to private conduct.Rendell-Baker v. Kohn , 457 U.S. 830, 837 (1982).
Shelley v. Kraemer , 334 U.S. 1, 13 (1948).
On April 25, 2011, Appellants filed their anti-SLAPP motion. [1 ER, 155-188.] On May 5, 2011,
Plaintiffs filed their opposition to said motion. [1 ER, 117-141.] On May 27, 2011, Appellants filed their reply
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memorandum with supporting documents, including memoranda of evidentiary objections to the
declarations of Berg and Liberi. [1 ER, 32-106.]
On June 13, 2011, the Court conducted a hearing on the motion. [1 ER, 10-24.] On June 14, 2011, the
Court issued its order denying the motion. [1 ER, 4-9.] DOFF filed its Notice of Appeal onJune 27, 2011.
[1 ER, 3.] On July 13, 2011, Taitz filed her Notice of Appeal from the order. [1 ER, 1-
2.]
Statement of Facts
A. Summary of Appellants alleged acts in furtherance of their rights of petition and free
speech in connection with public issues
Plaintiffs Complaint contains numerous instances of Appellantsalleged acts in furtherance of theirrights of petition and free speech in connection with public issues. A sampling of such allegations includes the
following:
Appellants allegedly published reports on the internet of Plaintiffs interference with
Appellants websites and internet blogs, creation of misleading websites and diversion of donations from
DOFF to entities controlled by Plaintiffs. Ostella used DOFFs website to criticize Taitz and promote Berg to
the political dissident movement. Plaintiffsallege that Ostella changed the PayPal script in the donations
button to reflect her own account and removed Taitzs accounts from the site. [1 ER, 264.] It was in the
publics interest, particularly the many adherents of this movement including its Birther component, to
know of Plaintiffs usurpation of Appellants website including their scheme to divert donations from
Appellants and to Plaintiffs. [1 ER, 259-277.]
Per Plaintiffs, Taitz wrote to the U.S. Supreme Court Justices seeking help in an investigation
regarding a criminal complaint she had filed with the Federal Bureau of Investigation regarding hacking into
her websites and tampering of her PayPal accounts... Taitz sent this same letter to the Secret Service and other
Governmental Law Enforcement Agencies. [1 ER, 262.]
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Appellants allegedly published the criminal record of Liberi. [1 ER, 268.] Liberi has an
extensive criminal record, including convictions for grand theft, passing checks on insufficient funds, forging
instruments for filing with government agencies, and forging an official seal. Liberi has been charged with
numerous other crimes. [1 ER, 272-280.] Appellants allegedly informed Berg (believing at the time he was
unaware of Liberis criminal history) of same, including that Liberis husband was on parole and had set up
two accounts accepting credit card donations for Bergs foundation. It was in the publics interest to know of
Liberis criminal record, particularly to protect donors against Plaintiffs possible theft of such donations,
including potentially toward payment of Liberis obligation for criminal restitution.
Appellants allegedly contacted Liberis probation officer in New Mexico, and the San
Bernardino County District Attorney, informing them of Liberis violation of the terms of her probation,including that Liberi could not possess nor use any credit card without permission of the probation officer.
[1 ER, 268, and 275-279.]
By any measure, and based on Plaintiffs own allegations, Appellants alleged acts were done in
furtherance of their rights of petition and free speech in connection with public issues all focused upon the
right to speak on political matters, regarded under the anti-SLAPP statute as the quintessential subject of
our constitutional protections of the right of free speech.Matson , supra , 40 Cal.App.4th at 548.
Summary of Argument
The order denying Appellants motion should be reversed. Appellants clearly met (and in fact
exceeded) their burden under 425.16(b)(1) to demonstrate that Plaintiffs Complaint arises out of
Appellants alleged acts in f urtherance of their rights of petition and free speech in connection with a public
issue. Appellants demonstrated protected activity coming within each subpart of
425.16(e) describing "act[s] in furtherance of a person's right of petition or free speech....
Conversely, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to demonstrate a probability
of prevailing as against Appellants. Notably, Plaintiffs made a judicial admission that the Complaint was
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legally insufficient. This admission was dispositive where a plaintiff must demonstrate that its complaint is
both legally sufficient and supported by a prima facie factual showing . Rosenaur v. Scherer , 88 Cal.App.4th
260, 274 (2001). Plaintiffs also failed to satisfy their burden to present competent and admissible evidence
making the required factual showing.
The District Court as a matter of law erred in misinterpreting and misapplying Appellants and
Plaintiffs burdens under425.16. Its order should be reversed.
Legal Discussion
I.
Standard of Review
A. De novo standard of review regarding denial of an anti-SLAPP motion to strike under
CaliforniaCode of Civil Procedure section 425.16
The Court of Appeal inThomas v. Quintero , 126 Cal.App.4th 635, 624-625 (2005) held:A ruling on a special motion to strike under 425.16 is reviewedde novo .[Citation.] This includes whether the anti-SLAPP statute applies to thechallenged claim. [Citation.] Furthermore, we apply our independentjudgment to determine whether [the plaintiff's] causes of action arose fromacts by [the defendant] in furtherance of [the defendant's] right of petitionor free speech in connection with a public issue. [Citation.] [Only when]these two conditions are satisfied, [do] we then independentlydetermine, from our review of the record as a whole, whether [the plaintiff]has established a reasonable probability that he would prevail on hisclaims. [Citation.] (Emphasis added.)
B. Legal standards applicable to an anti-SLAPP motion to strike under CaliforniaCode of
Civil Procedure section 425.16
The California Legislature has declared that freedom of speech and the right to petition the
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government for redress of grievances shall not be discouraged through abuse of the judicial process. Section
425.16(a) and (b) state:(a) The Legislature finds and declares that there has been a disturbingincrease in lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interestto encourage continued participation in matters of public significance, andthat this participation should not be chilled through abuse of the judicialprocess. To this end,this section shall be construed broadly .
(b)(1) A cause of action against a person arising from any act of that personin furtherance of the person's right of petition or free speech under theUnited States Constitution or the California Constitution in connection witha public issue shall be subject to a special motion to strike, unless the courtdetermines that the plaintiff has established that there is a probability thatthe plaintiff will prevail on the claim.
(b)(2) In making its determination, the court shall consider the pleadings,and supporting and opposing affidavits stating the facts upon which theliability or defense is based." (Emphasis added.)
A defendant bringing an anti-SLAPP motion makes an initial prima facie showing that plaintiff's suit
arises from an act in furtherance of defendant's right of petition or free speech by demonstrating that the acts
underlying plaintiff's cause fit one or more of the categories spelled out 425.16(e).Braun v. Chronicle
Publishing Co., 52 Cal.App.4th 1036, 1043 (1997).
The definition of public interest within the anti-SLAPP law is broadly construed to include private
conduct that impacts a broad segment of society.Damon v. Ocean Hills Journalism Club,85 Cal.App.4th 468,
472 (2000). Relatedly, public discussion about the qualifications of those who hold or who wish to hold
positions of public trust presents the strongest possible case for applications of the safeguards afforded by the
First Amendment.Matson, supra , 40 Cal.App.4th at 548.
A cause of action arises from protected activity where the act underlying plaintiff's cause of action,
or the act which forms the basis for it was itself an act in furtherance of the right of petition or free speech.
City of Cotati v. Cashman , 29 Cal.4th 69, 78 (2002). The Courts determination on this issue is subject tode
novo review.Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219,
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1232 (2003).
The "arising from" prong encompasses any action based on protected speech or petitioning activity,
as defined in 425.16(e), regardless of whether plaintiff's lawsuit was intended to chill, or actually chilled,
defendant's protected conduct.Martinez v. Metabolife Internat., Inc., 113 Cal.App.4th 181, 187(2003). The
phrase "arising from" in 425.16 (b)(1) has been interpreted to mean that "the act underlying the plaintiff's
cause" or "the act which forms the basis for the plaintiff's cause of action" must have been an act in
furtherance of the right of petition or free speech.Braun , supra , 52 Cal.App.4th at 1043.
If a Court finds that defendant has made the threshold showing, it then determines whether plaintiff
has demonstrated a probability of prevailing on the claim. Section 425.16(b)(1). In order to establish aprobability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must must
demonstrate that the complaint is bothlegally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.Matson, supra , 40
Cal.App.4th at 548; emphasis added.
A complaint combining allegations of protected and nonprotected activity is subject to 425.16 if at
least one of the alleged underlying acts is protected conduct.Peregrine Funding, Inc. v. Sheppard Mullin
Richter Hampton LLP , 133 Cal.App.4th 658, 672 (2005). An anti-SLAPP motion may be granted as to some
causes of action, and denied as to other causes of action of a Complaint, as its requirements are to be applied
and determined as to each of plaintiffs claims.ComputerXpress, Inc. v. Jackson , 93 Cal.App.4th 993, 1004
(2001).
II.
The District Court, as a Matter of Law, Erred in Concluding that Appellants Did Not Meet Their Burden
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Under Section 425.16(b)(1) to Show that Plaintiffs Complaint Arises Out of Appellants Acts in
Furtherance of Their Rights of Petition or Free Speech in Connection with a Public Issue
A. Appellants met their burden under section 425.16(b)(1) where Plaintiffs Complaint
clearly arises out of Appellants alleged acts in furtherance of their rights of petition
and free speech in connection with public issues
1. Applicable legal standards under section 425.16(e)
A defendant meets its burden under 425.16(b)(1) by demonstrating that the acts underlying
plaintiff's cause fit one or more of the categories set out in 425.16(e).Braun , supra , 52 Cal.App.4th at 1043.
425.16(e) provides:As used in this section, "act in furtherance of a person's right of petition orfree speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writingmade before a legislative, executive, or judicial proceeding, or any otherofficial proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review bya legislative, executive, or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement or writing made in aplace open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of theconstitutional right of petition or the constitutional right of free speech inconnection with a public issue or an issue of public interest.
In determining whether a cause of action falls within the scope of subdivision (e), courts must
broadly construe the anti-SLAPP statute.Annette F. v. Sharon S., 119 Cal.App.4th 1146, 1160 (2004);
emphasis added.
The categories enumerated in 425.16(e) are not all-inclusive. Because the subsection is preceded by
the word "includes," other unmentioned acts are also protected under the statute.Averill v. Superior Court , 42
Cal.App.4th 1170, 1175 (1996). Such a threshold showing can be established in several circumstances,
including if the moving party demonstrates that it made the alleged statement in a place open to the public or
a public forum in connection with an issue of public interest. 425.16(e)(3).Seelig v. Infinity Broadcasting
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Corp., 97 Cal.App.4th 798, 807 (2002). Appellants submit that they clearly satisfied this burden, and in fact
exceeded it, where their alleged acts fit intoall four categories of 425.16(e).
The District Courts order contains no analysis or findings on the issue of whether that the alleged
acts underlying the Complaint fall into one or more of the categories set out in 425.16(e); there is merely a
conclusion that Defendants have failed to make a prima facie showing that the acts complained of fall into
any of those four categories of 425.16(e). [1 ER, 8.] No alleged acts set out in the Complaint are analyzed
with regard to the four categories. In reaching its unsupported conclusion, it is clear that the District Court
applied an impermissibly narrow standard as to Appellants exercise of their rights of petition and free speech
as well as the meaning of in furtherance of such rights and in connection with a public issue" in
contravention of the legislative directive that this section shall be construed broadly. Section 425.16(a).a. Appellants Right of Petition
The California Supreme Court has declared that [t]he constitutional right to petition includes the
basic act of filing litigation or otherwise seeking administrative action."Briggs v. Eden Council for Hope &
Opportunity , 19 Cal.4th 1106, 1115 (1999). Federal law is in accord. For example, inCalifornia
Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 510 (1972), the Supreme Court held: The right of
access to the courts is indeed but one aspectof the right of petition.
Section 425.16 (e) defines an act in furtherance of a persons right of petition to include: (1) any
written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law.... Communications made in preparation for or in anticipation of the bringing
of an action or other official proceeding fall within the ambit of these subdivisions.Action Apartment Assn.,
Inc. v. City of Santa Monica , 41 Cal.4th 1232, 1250-1251(2007).
It is axiomatic that the qualifications of a declared candidate for public office raise a public issue.
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McCoy v. Hearst Corp., 42 Cal.3d 835, 859 (1986). The core of the dispute herein involves the Birther
Movement challenging the qualifications of President Obama. Plaintiffs seek to silence Appellants
whistleblowing to the political dissident community and influence such movements primary tool to
advance its goals - litigation and other petitioning activity spearheading a nationwide debate on such public
issue. Appellants ha ve thus clearly demonstrated act[s] in furtherance of [their] right of petition under the
anti-SLAPP law.
b. Appellants Right of Free Speech
The United States Constitution, First Amendment provides: Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of grievances.
The constitutional protection for free speech does not turn upon "the truth, popularity, or social
utility of the ideas and beliefs which are offered."N.A.A.C.P. v. Button , 371 U.S. 415, 445 (1963). Under the
First Amendment, "[h]owever pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas."Gertz v. Robert Welch, Inc., 418 U.S.
323, 339-340 (1974).
The central subject of Appellants free speech at issue involves the Birther Movement challenging
the qualifications of President Obama. Such protected speech as a matter of law concerns a public issue.
McCoy , supra , 42 Cal.3d at 859. Appellants free speech activities were without question entitled to
protection under 425.16.
The only logical explanation for why the District Court found to the contrary is that it dismissed
Appellants activities and speech, all in connection with leadership of the Birther Movement, as trivial,
pernicious .However, the Courts apparent view has no place in ruling upon Appellants motion. No matter
how provocative or unpopular Appellants political activities may be, they still, as a matter of law, are entitle
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to protection under the First Amendment including via an anti-SLAPP motion under 425.16.N.A.A.C.P.,
supra , 371 U.S. at 445.Gertz , supra , 418 U.S. at 339-340.
2. Appellantsalleged acts in furtherance of their rights of petition and free
speech in connection with public issues
a. Appellants allegedly made written or oral statement[s] or writing[s]made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law.... as required by section
425.16(e)(1)
Plaintiffs allege that Taitz wrote to the U.S. Supreme Court Justices seeking help in an investigation
regarding a criminal complaint she had filed with the Federal Bureau of Investigation regarding hacking into
her websites and tampering of her PayPal accounts... Taitz sent this same letter to the Secret Service and other
Governmental Law Enforcement Agencies. [1 ER, 262.] Taitz allegedly sought redress for Plaintiffs actions
from numerous government officials including Attorney General Eric Holder and Solicitor General Elena
Kagan.... [1 ER, 272.] Appellants also allegedly contacted Liberis probation officer in New Mexico, and the
San Bernardino County District Attorney, informing them of Liberis violation of the terms of her probation,
including that Liberi could not possess nor use any credit card without permission of the probation officer,
all for the purpose of seeking redress for Liberis violation of her probation in connection with Plaintiffs
interference with Appellants websites and diversion of donations. [1 ER, 268, and 275-279.]
Appellants alleged statements were unquestionably made before a legislative, executive, or judicial
proceeding, or any other off icial proceeding authorized by law.... as required by 425.16(e)(1) and thus per
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se protected activity under the anti-SLAPP statute.
Under the unambiguous language of 425.16(e), an action may be a SLAPP suit under subparts (1)
and (2) without any separate demonstration by defendant that its speech or petition concerned an issue of
public significance.Briggs, supra , 19 Cal.4th at 1113.Sipple v. Foundation for Nat. Progress , 71 Cal.App.4th
226, 236-237 (1999). The California Supreme Court inBriggs held:At least as to acts covered by clauses one and two of section 425.16,subdivision (e), the statute requires simply any writing or statement madein, or in connection with an issue under consideration or review by, thespecified proceeding or body. Thus these clauses safeguard free speech andpetition conduct aimed at advancing self government, as well as conductaimed at more mundane pursuits. Under the plain terms of the statute it isthe context or setting itself that makes the issue a public issue: all thatmatters is that the First Amendment activity take place in an officialproceeding or be made in connection with an issue being reviewed by anofficial proceeding.Briggs, supra , 19 Cal.4th at 1116; emphasis added.
By contrast, subparts (3) and (4) of 425.16(e) include an express limitation to "issue[s] of public
interest" but that limitation is not stated in subparts (1) and (2).Briggs, supra , 19 Cal.4th at 1117-1118.
Thus, the first two subparts of 425.16(e) require simply any writing or statement made in, or in
connection with, an issue under consideration or review by the specified proceeding or body.Kibler v. N. Inyo
County Local Hospital Dist., 39 Cal.4th 192, 196-198 (2006). Appellants burden under 425.16(e)(1) thus
didnot include to show their speech or petition activity concerned an issue of public significance.Briggs,
supra , 19 Cal.4th at 1113.Sipple , supra , 71 Cal.App.4th at 236-237.
Appellants were required to demonstrate statements made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law.... as required by 425.16(e)(1). Appellants
clearly met this burden. Thus, the District Courts conclusion that Appellants failed to make a prima facie
showing that the acts complained of fall into any of those four categories of 425.16(e) is clearly erroneous
under 425.16(e)(1). [1 ER, 8.]
b. Appellants allegedly made written or oral statement[s] or writing[s]
made in connection with an issue under consideration or review by a
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legislative, executive, or judicial body, or any other official proceeding
authorized by law....
as required by section 425.16(e)(2)
Appellants alleged statements qualify as statements made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official proceeding
authorized by law....under 425.16(e)(2) for the same reasons, explained above, that they are protected
under 425.16(e)(1). For example, Plaintiffs allege that Taitz wrote to the U.S. Supreme Court Justices
seeking help in an investigation regarding a criminal complaint she had filed with the Federal Bureau of
Investigation regarding hacking into her websites and tampering of her PayPal accounts.... [1 ER, 262.] Such
complaint was thus made in connection with an issue under consideration or review by a... judicial body....as well as with regard to any other official proceeding authorized by law.... Similarly, Appellants alleged
contact with Liberis probation officer in New Mexico, and the San Bernardino County District Attorney,
informing them of Liberis violation of the terms of her probation, was made in connection with an issue
under consideration or review by a... judicial body as well as any other official proceeding authorized by
law....
[1 ER, 268, and 275-279.]
The requirements of 425.16(e)(2) are construed broadly, and even cover an official proceeding
authorized by law before a non-governmental entity.Kibler , supra , 39 Cal.4th at 198. Here, Appellants
alleged acts were in several official proceeding[s] authorized by law before multiple governmental entities.
Appellants alleged statements were thus per se protected activity under 425.16(e)(2). Appellants
burden under 425.16(e)(2) did not include to show their speech or petition activity concerned an issue of
public significance.Briggs, supra , 19 Cal.4th at 1113.Sipple , supra , 71 Cal.App.4th at 236-237. Appellants met
their burden under 425.16(e)(2). Thus, the District Courts conclusion that Appellants failed to make a
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prima facie showing that the acts complained of fall into any of those four categories of 425.16(e) is clearly
erroneous under 425.16(e)(2). [1 ER, 8.]
c. Appellants allegedly made written or oral statement[s] or writing[s]
made in a place open to the public or a public forum in connection
with an issue of public interest.... as required by section 425.16(e)(3)
Plaintiffs allege that Taitz engaged in whistleblowing via publishing statements on various websites
and internet blogs reportingthat Plaintiffs interfered with Appellants websites and internet blogs, created
misleading websites and diverted donations from DOFF to entities controlled by Plaintiffs. [1 ER, 264.]
Plaintiffs also allege that Taitz published statements were copied by various websites and blogs
regarding the criminal record of Liberi. [1 ER, 268.] As a matter of law, such alleged activities constitutedwritten... statement[s] or writing[s] made in a
place open to the public or a public forum in connection with an issue of public interest.... under
425.16(e)(3).
Web sites where members of the public may read the views and information posted, and post their
own opinions, as a matter of law are a public forum for purposes of 425.16(e)(3).Ampex Corp. v. Cargle ,
128 Cal.App.4th 1569 (2005). The Court of Appeal held:When [Defendant] decided in August 2001 to join the conversation aboutthe fortunes of Ampex, he did so by posting messages on the Yahoo!message board for Ampex. The question here is whether such postings weremade in a public forum, traditionally defined as a place that is open to thepublic where information is freely exchanged. (ComputerXpress, Inc. v.Jackson, supra, 93 Cal.App.4th at p. 1006.)The term public forum includesforms of public communication other than those occurring in a physicalsetting. Thus the electronic communication media may constitute publicforums. Web sites that are accessible free of charge to any member of thepublic where members of the public may read the views and information
posted, and post their own opinions, meet the definition of a public forumfor purposes of section 425.16. (ComputerXpress, Inc. v. Jackson, supra, atp. 1007.) Thus the Yahoo! message board maintained for Ampex was apublic forum.Id.at 1576; emphasis added.
Ninth Circuit cases interpret public forum under 425.16(e)(3) to include websites. (See,Troy
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Group, Inc. v. Tilson , 364 F.Supp.2d 1149, 1153 (2005).) Thus, Appellants met their burden under
425.16(e)(3) on its public forum component.
Appellants alleged statements were made in connection with an issue of public interest.... as
required by 425.16(e)(3). This language is interpreted broadly.Annette F., supra , 119 Cal.App.4th at 1160.
Under California law, to constitute or concern a public issue, the involved conduct must either impact a broad
segment of society or affect a community in a manner similar to that of a governmental entity.Damon , supra ,
85 Cal.App.4th at 479. Appellants alleged statements, all made in furtherance of the political dissident
movement and its Birther component, certainly impact a broad segment of society by stirring important
public debate regarding the qualifications of highest political leaders to hold office as well as generate
considerable media coverage. This broad segment includes, but is not limited to, thousands of adherents of the Birther Movement, as well as millions who follow media coverage of such political debate.
The Court of Appeal inRivero v. AFL-CIO , 105 Cal.App.4th 913, 923 (2003) surveyed cases
interpreting the meaning public interest under the anti-SLAPP statute and held that covers a broad range of
protected conduct:None of these cases defines the precise boundaries of a public issue, but ineach of these cases, the subject statements either concerned a person orentity in the public eye (see Sipple, supra, 71 Cal.App.4th at p. 239["nationally known figure"]; Church of Scientology, supra, 42 Cal.App.4th atp. 651 [extensive "media coverage"]; Seelig, supra, 97 Cal.App.4th at pp.807-808 [discussion of participant in "a television show of significantinterest to the public and the media"]), conduct that could directly affect alarge number of people beyond the direct participants (Damon, supra, 85Cal.App.4th 468; Ludwig, supra, 37 Cal.App.4th 8; Dowling, supra, 85Cal.App.4th 1400; Church of Scientology, supra, 42 Cal.App.4th at pp.650-651) or a topic of widespread, public interest (see M.G., supra, 89Cal.App.4th at p. 629).Rivero , supra , 105 Cal.App.4th at 924.
Appellants clearly engaged in protected conduct in connection with an issue of public interest.... as
required by 425.16(e)(3). Taitz as well as Berg are nationally known figure[s] as discussed inSipple, supra ,
71 Cal.App.4th at 239. The political issues in discussion, most notably the goals of the Birther Movement,
generate extensive media coverage as discussed inChurch of Scientology v. Wollersheim , 42 Cal.App.4th
628, 651 (1996), disapproved on other grounds inEquilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53,
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(2002). Such movement, and the underlying controversy arising out of Plaintiffs attempts to silence
Appellants political speech, inherently concern a topic of widespread,
public interest as discussed inM.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 629 (2001).
Moreover, Appellants speech at issue qualifies for the highest protections of the First Amendment.
The right to speak on political matters is the quintessential subject of the constitutional protections of the
right of free speech, and public discussion about the qualifications of those who hold or who wish to hold
positions of public trust presents the strongest possible case for applications of the safeguards afforded by the
First Amendment.Matson, supra , 40 Cal.App.4th at 548. "Public discussion about the qualifications of those
who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment." ' [Citations.]"Damon, supra , 85 Cal.App.4th at 479.
At its heart, this case concerns the activities of the political dissident movement including the Birther
Movement,involving public discussions challenging the qualifications of President Obama to hold the
highest office in the United States. This case directly implicates control over that movement, particularly as to
crucial fundraising activities, including over its primary method to achieve its goals, litigation challenging
President Obamas qualifications. It presents the strongest possible set of facts squarely presenting free
speech and petition activity protected per se under 425.16(e)(3). Thus, the District Courts conclusion that
Appellants failed to make a prima facie showing that the acts complained of fall into any of those four
categories of 425.16(e) is clearly erroneous under 425.16(e)(3). [1 ER, 8.]
d. Appellants allegedly engaged in any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of
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demonstrate the legal sufficiency of their Complaint where they made a judicial
admission that the Complaint was legally insufficient
1. Plaintiffs admitted that their Complaint was legally insufficient and, thus, as a
matter of law, did not meet their burden under section 425.16(b)(1)
Review of the issues discussed in this Section III are governed by thede novo standard.Thomas ,
supra , 126 Cal.App.4th at 624-625. Tuchscher , supra , 106 Cal.App.4th at 1232.
A plaintiffs burden under the second prong of 425.16(b)(1) is two-fold: "[T]he plaintiff 'must
demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing
of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'"Matson, supra ,
40 Cal.App.4th at 548; emphasis added.Rosenaur , supra , 88 Cal.App.4th at 274.As a matter of law, it is insufficient for a plaintiff to merely argue that it has made an evidentiary
showing of merit in opposition to an anti-SLAPP motion. [T]he plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.Taus v. Loftus , 40 Cal.4th 683,
713-714 (2007).
Plaintiffs admitted that they did not satisfy this first requirement of their burden:The second prong is whether the Plaintiffs have demonstrated a probabilityof prevailing on the claim. Plaintiffsagree they must amend theirComplaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8; emphasis added.]
Under Ninth Circuit law, "[j]udicial admissions are formal admissions in the pleadings which have
the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact."
American Title Ins. Co. v. Lovelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
Plaintiffs judicial admission in their opposition that they did not satisfy their burden under
425.16(b)(1) to demonstrate the legal sufficiency of their Complaint required, as a matter of law, that the anti-
SLAPP motion be granted.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
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Taus , supra , 40 Cal.4th at 713-714. The District Court ignored this essential component of Plaintiff s burden;
the Court held Plaintiffs have sufficiently made a prima facie showing of facts that would, if proved, support
a judgment in their favor. [ER, 8.] This holding expresses a logical impossibility; without possessing a legall
sufficient Complaint, Plaintiffs could not make a prima facie showing of facts [to]... support a judgment in
their favor.
In the parlance of the anti-SLAPP law, and its two-pronged test for an opposing partys burden under
425.16(b)(1), Plaintiffs had to first demonstrate that the complaint is... legally sufficient before the Court
could reach the issue of whether Plaintiffs made a prima facie showing of facts to sustain a favorable
judgment....Taus , supra , 40 Cal.4th at 713-714.
The District Court impermissible bypassed the first prong of this test, and focused exclusively (and
improperly) only on the second prong. [1 ER, 8.]
By analogy, the Courts disregard of Plaintiffs burdenunder the first prong of this test, after they
made a judicial admission of the insufficiency of the Complaint, is similar to a Court considering the merits o
a complaint in the face of a plaintiffs admission that its complaint is barred by a statute of limitations. Once
such a dispositive judicial admission is made, no further inquiry is necessary or allowed.
Neither the anti-SLAPP statute nor case law decided under it permit a Court to bypass a plaintiffs
burden under the first prong of this test. The Court failed to consider the legal sufficiency of the Complaint,
admitted by Plaintiffs to be insufficient, and thus as a matter of law committed reversible error.
2. Plaintiffs failed to meet their burden to demonstrate that their Complaint and
each of its claims were legally sufficient under section 425.16(b)(1)
a. Plaintiffs Count One, for Violation of the First and Fourteenth
Amendment [sic] of the United States Constituion [sic], is legally
insufficient
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Plaintiffs' first claim has no legal basis. [2 ER, 311-316.] The Fourteenth Amendment cannot apply to
private conduct.Shelley, supra , 334 U.S. at 13. The First Amendment does not apply to private conduct
either.Rendell-Baker, supra , 457 U.S. at 837. Where Plaintiffs allege only private conduct, and not required
governmental invasion of privacy, their first claim as a matter of law must fail.
Plaintiffsfirst claim is also based on a jumbled smorgasbord of various California, Pennsylvania and
federal statutes. [2 ER, 314-315.] None of these laws support Plaintiffs claim. For example, CaliforniaCivil
Code section 1798 et seq. (California's Information Practices Act of 1977) requires government agencies to
protect the privacy of personal information maintained by state agencies. See,Civil Code 1798.3(a)
and1798.45, andMeister v. Regents of University of California , 67 Cal.App.4th 437, 446 (1998). Plaintiffs
cannot state a claim against Appellants under California's Information Practices Act of 1977 where they arenot a governmental "agency" as defined under such Act. Moreover, Plaintiffs agree they must amend their
Complaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8.] Thus, per Plaintiffs, their
Complaint states no sufficient claim under California law.
Appellants are not subject to the Pennsylvania Privacy Acts cited in the Complaint where they are
not residents or citizens of the State of Pennsylvania, but instead residents and citizens of the State of
California. [1 ER, 256.]
None of the federal statutes cited in the first claim support the claim. For example, 18 U.S.C. 2510
22 are criminal law statutes not providing for civil remedies.
b. Plaintiffs Count Two, for DefamationPer Se , Slander and Libel, is
legally insufficient
Plaintiffs common law claims are based on California law, given that the case is pending in Californi
and Appellants are alleged to be, and are, residents and citizens of California.Erie Railroad Co. v. Tompkins ,
304 U.S. 64, 78 (1938).
Thus, Plaintiffs common law claims for defamation per se, slander and libel are based on California law. [2
ER, 317-320.] Again, Plaintiffs agree they must amend their Complaint to bring it in compliance with the
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California Laws. [1 ER, 125: 5-8.] Thus, per Plaintiffs, their second claim fails to state a sufficient claim under
California law.
The insufficiency of Plaintiffs second claim is demonstrated in detail in Appellants anti-SLAPP
motion and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is
binding. American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in
establishing their failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of
their second claim.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
c. Plaintiffs Count Three, for False-Light Invasion of Privacy, is
legally insufficient Plaintiffs third claim is based on California law. [2 ER, 320-323.]Erie Railroad Co., supra , 304 U.S. at
78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the California
Laws, their third claim fails to state a sufficient claim under California law.
The insufficiency of Plaintiffs third claim is demonstrated in detail in Appellants anti-SLAPP motion
and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding.
American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their
failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their third claim.
Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
d. Plaintiffs Count Four, for Harassment, is legally insufficient as
well as not being a legally-cognizable claim
Plaintiffs fourth claim is for harassment. [2 ER, 323-326.] There is no legally-cognizable claim for
relief for damages entitled harassment. If and to the extent there is such a legally-cognizable claim (limited
to injunctive relief), it would be based on California law. CaliforniaCode of Civil Procedure section 527.6.Erie
Railroad Co., supra , 304 U.S. at 78. Plaintiffs seek damages on this claim. [2 ER, 324.] Where Plaintiffs agree
they must amend their Complaint to bring it in compliance with the California Laws, their fourth claim fails
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to state a sufficient claim under California law.
The insufficiency of Plaintiffs fourth claim is demonstrated in detail in Appellants anti-SLAPP motion
and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding.
American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission isdispositive in establishing their
failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their fourth claim.
Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
e. Plaintiffs Count Five, for False Designations and Descriptions of
Facts, is legally insufficient
Plaintiffs fifth claim is for false designations and descriptions of facts. [2 ER, 326-329.] Plaintiffs
cite to 15 U.S.C. 1125 as supporting this claim. [2 ER, 327.] This section is part of the United StatesTrademark Act. Section 1125(a)(1) refers to:
Any person who, on or in connection with any goods or services, or anycontainer for goods, uses in commerce any word, term, name, symbol, ordevice, or any combination thereof, or any false designation of origin, falseor misleading description of fact, or false or misleading representation of fact....
Plaintiffs fail to allege any facts in this claim that Appellants used in commerce any word.... as
required by 1125(a)(1). Moreover, to come within 43(a) of the Lanham Act (15 U.S.C. 1125(a)), covere
activities must relate to goods or services which have some effect on interstate or foreign commerce
within control of Congress.Parkway Baking Co. v Freihofer Baking Co., 255 F.2d 641 (3rd Circ. 1958).
Cashmere & Camel Hair Mfrs. Inst. v Saks Fifth Ave ., 284 F.3d 302 (1st Circ. 2002). Plaintiffs in their fifth claim
fail to allege this essential element of provision of goods or services in interstate commerce, or any effect on
interstate commerce.
Congress' purpose in enacting 43(a) of the Lanham Act was to create a special and limited unfair
competition remedy exclusively to protect the interests of a purely commercial class against unscrupulous
commercial conduct.Colligan v Activities Club of New York, Ltd., 442 F.2d 686 (2nd Circ. 1971). Plaintiffs fail
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to allege any facts establishing the essential element of unfair competition as between them and Appellants,
nor that Appellants engaged in any unscrupulous commercial conduct.
Thus, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to demonstrate the legal
sufficiency of their fifth claim.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
e. Plaintiffs Count Six, for Injunctive Relief , is legally insufficient
and is not a separate claim for relief
Plaintiffs sixth claim is for injunctive relief. [2 ER, 329-332.] This is not a separate claim for relief; it
is merely a type of remedy dependent upon the existence of a separate, supporting claim for relief.City of
South Pasadena v. Department of Transportation , 29 Cal.App.4th 1280, 1293 (1994). As discussed herein,
and demonstrated in Appellants anti-SLAPP motion and supporting papers, Plaintiffs failed to state anysufficient claim upon which their sixth claim could be based.
Further, it appears that Plaintiffssixth claim is based on California law.Erie Railroad Co., supra , 304
U.S. at 78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the
California Laws,their sixth claim fails to state a sufficient claim under California law.
The insufficiency of Plaintiffs sixth claim is demonstrated in detail in Appellants anti-SLAPP motion
and supporting papers. However, Plaintiffsjudicial admission that such claim is insufficient is binding.
American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their
failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their sixth claim.
Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
B. Plaintiffs did not meet their burden under section 425.16(b)(1) to present competent
and admissible evidence sufficient to sustain a judgment in their favor on the
Complaint
Appelantz submits the following argument without waiving, and with a full reservation of, her above
argument that Plaintiffs failed to satisfy their burden under 425.16(b)(1) where they admitted that the
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Complaint was legally insufficient. A plaintiffs burden under 425.16(b)(1) includes to make a prima facie
showing via competent and admissible evidence of facts sufficient to sustain a favorable judgment.Matson,
supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.
Plaintiffs did not satisfy that burden where they failed to submit competent or admissible evidence
supporting their opposition. Plaintiffs Liberi and Berg submitteddeclarations with Plaintiffs opposition. [1 ER,
142-154.] Appellants submitted memoranda of evidentiary objections to such declarations. [1 ER, 47-56.]
The District Court failed to rule on such objections, instead stating that the Court has reviewed theobjections
filed here and relies only on admissible evidence. [1 ER, 6.] The Court thus tacitly overruled Appellants
objections.
Rule 103 of the Fed. R. Evid provides in relevant part:(a) Preserving a Claim of Error. A party may claim error in a ruling to admitor exclude evidence only if the error affects a substantial right of the partyand:(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and(B) states the specific ground, unless it was apparent from thecontext; or
(2) if the ruling excludes evidence, a party informs the court of itssubstance by an offer of proof, unless the substance was apparent fromthe context.
Here, Appellants filed timely evidentiary objections to the declarations of Liberi and Berg. The Distric
Court tacitly overruled the objections. Such error affects a substantial right of Appellants where