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Case Nos. 11-56079 and 11-56164 (Consolidated on February 3, 2012) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Lisa Liberi, et al.,

) ) Plaintiffs/Appellees, ) ) vs. ) ) Orly Taitz, Defend Our Freedoms ) Foundations, Inc., et al., ) ) Defendants/Appellants. ) ) ) ) _________________________________)

Appeal from the United States District Court for the Central District of California Civil Action No.: 8:11-CV00485-AG (AJWx)

OPPOSITION BY APPELLANT, ORLY TAITZ, TO APPELLEES MOTION TO STRIKE PORTIONS OF APPELLANTS REPLY BRIEF AND SUPPLEMENTAL EXCERPTS OF RECORD, AND FOR SANCTIONS; SUPPORTING DECLARATIONS

Kim Schumann, Esq., CSBN 170942 Jeffrey P. Cunningham, Esq., CSBN 151067 SCHUMANN, RALLO & ROSENBERG, LLP 3100 S. Bristol St., Suite 400 Costa Mesa, CA 92626 (714) 850-0210 - telephone (714) 850-0551 - fax Counsel for Defendant/Appellant, Orly Taitz

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TABLE OF CONTENTS SECTION I. II. PAGE NO.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Defendants Reply Arguments Regarding Plaintiffs New Arguments Citing to Verizon, Vess and Greensprings Are Proper and Should Not Be Stricken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III.

Plaintiffs Fail to Cite Legal Authority Supporting Their Request to Strike Defendants Reply Arguments Regarding Plaintiffs New Arguments Relying on Verizon, Vess and Greensprings . . . . . . . . . . . . . 6

IV.

Defendants Reply Arguments Regarding Plaintiffs Arguments in Their Answering Brief That There is No Public Interest Component in This Case, Including with Regard to the Birther Movement Are Proper and Should Not Be Stricken . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

V.

Plaintiffs Fail to Cite Legal Authority Supporting Their Request to Strike Defendants Reply Arguments Regarding Plaintiffs Arguments That There is No Public Interest Component in This Case, Including with Regard to the Birther Movement . . . . . . . . . . . . . . . . . . . . . . . 10

VI.

Plaintiffs Did Not, As Required, Meet and Confer Before Filing Their Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

VII. Plaintiffs Request for the Imposition of Sanctions Against Taitz and Her Counsel Should Be Denied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES Federal Cases Bolker v. Commissioner (9th Cir. 1985) 760 F.2d 1039 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Cedano-Viera v. Ashcroft (9th Cir. 2003) 324 F.3d 1062, 1066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu (9th Cir. 2006) 455 F.3d 910 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Eberle v. City of Anaheim (9th Cir. 1990) 901 F.2d 814, 818 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Graves v. Arpaio (9th Cir. 2010) 623 F.3d 1043, 1048 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Greensprings Baptist Christian Fellowship Trust v. Cilley (9th Cir. 2010) 629 F.3d 1064 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Intl Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc. (9th Cir. 1985) 752 F.2d 1401, 1404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 In re Riverside Linden Investment Co. (9th Cir. 1991) 945 F.2d 320, 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Janes v. Wal-Mart Stores, Inc. (9th Cir. 2002) 279 F.3d 883 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kaufman Co. v. Lantech, Inc. (Fed. Cir. 1986) 807 F.2d 970, 973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 9, 11 Koerner v. Grigas (9th Cir. 2003) 328 F.3d 1039 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Lentini v. Cal. Ctr. for the Arts (9th Cir. 2004) 370 F.3d 837, 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033, 1037 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 United States v. Rodriguez (5th Cir. Tex. 1994) 15 F.3d 408, 415, fn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 7, 9, 11 Verizon Delaware, Inc. v. Covad Comms. Co. (9th Cir. 2004) 377 F.3d 1081 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Vess v. Ciba-Geigy Corp. USA (9th Cir. 2003) 317 F.3d 1097 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Zambrano v. City of Tustin (9th Cir. 1989) 885 F.2d 1473, 1481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 State Cases Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Federal Statutes 28 U.S.C. 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Federal Rule of Civil Procedure 28(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 Federal Rule of Civil Procedure 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 State Statutes Code of Civil Procedure 425.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 9, 10, 11 Circuit Rules Circuit Rule 27-1 Circuit Rule 30-1 Circuit Rule 30-2 Circuit Rule 46-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

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Defendant and Appellant, ORLY TAITZ (Taitz), respectfully submits this brief in opposition to the Motion of Plaintiffs and Appellees, LISA LIBERI, et al. (collectively Plaintiffs), to Strike Portions of Appellant Orly Taitzs Reply Brief and Supplemental Excerpt of Record; for Sanctions; and Attorney Fees (Motion): I. Introduction Plaintiffs contend that the arguments of Taitz and Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF) (collectively Defendants) outlined in Appellants [sic] Reply Brief were not raised in the District Court or in their Appellants [sic] Opening Brief. Moreover, Appellants are now asking for Relief from this Court that was not requested in their Appellant [sic] Opening Brief. (Motion, p. 2; emphasis in original.) Plaintiffs Motion is based on a false premise - that a reply brief cannot contain arguments responding to appellees arguments in its answering brief, and that appellant is thus limited to arguments made in the lower Court and contained in its principal brief. Plaintiffs are wrong. They cite no authority for their argument (because none exists). Federal Rules of Appellate Procedure (FRAP) Rule 28(c) provides: Reply Brief. The appellant may file a brief in reply to the appellees brief. (Emphasis added.) "Reply briefs are to be used to reply to matter raised in the brief of the appellee. Kaufman Co. v Lantech, Inc., 807 F.2d 970, 973 (Fed. Cir. 1986). A reply brief is especially important -- and called for -- when a new point or issue ... is raised in the appellee's brief. United States v. Rodriguez, 15 F.3d 408, 415, fn. 7 (5th Cir. Tex. 1994).

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As discussed below and demonstrated in Taitzs Reply Brief (RB), she in such brief responds to Plaintiffs new arguments, raised for the first time in their Answering Brief (AB), based on Verizon Delaware, Inc. v. Covad Comms. Co., 377 F.3d 1081 (9th Cir. 2004), Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003), and Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (9th Cir. 2010). Thus, Taitzs arguments in her RB addressing Plaintiffs new arguments based on Verizon, Vess and Greensprings are entirely appropriate. Similarly, Plaintiffs object to Defendants Supplemental Excerpts of Record (SER) containing supposed statements made during a Hearing in a Court in Pennsylvania, by Appellees [sic] Counsel, which has nothing to do with this appeal.... Appellants were not present at the August 9, 2009 Hearing and the Appellants are stating Plaintiffs made statements that this case is about the Political movement regarding President Obama. This is farfetched. (Motion, p. 3; emphasis in original.) To the contrary, Plaintiffs counsel Philip J. Berg, Esq. (who is also a Plaintiff) represented to the District Court (Hon. Eduardo C. Robreno, Judge) that: However, and theres been - and, if I can supply them to the Court later and copies to counsel by letter or memorandum, in the past few days theres been several articles written, independent of me, which basically brings out what Ive said for months, that Orly Taitz if in here really to undermine everything - and her goal was - she set out months ago to bring me down, which makes nosense, because I have three pending lawsuits in Federal Court, and it doesnt make sense. But, now other people are writing it looks like shes really working either directly for Obama, or people related there, even though shes supposedly working against it by all of her wild actions. I call her, and Ive quoted her in the paper, as a loose cannon, but her actions, Your Honor, are detrimental to this cause, and even theyve had her on TV in the past few days, and she makes a fool of herself, because she doesnt really know what shes talking about.
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Therefore, I think it makes sense that shes trying to bring us down. By bringing us down, it would close out the whole effort. So, I think thats what it is. (SER, pp. 60-61; emphasis added.) As demonstrated in Taitzs RB, Plaintiffs by their representations to the Court that this case directly involves the Birther Movement and control over such political movement are estopped to argue to the contrary. In this and numerous other ways, Taitz has shown that Defendants met their burden to show alleged acts in furtherance of the person's right of petition or free speech... in connection with a public issue.... under California Code of Civil Procedure section 425.16(b)(1). Moreover, Defendants SER (which includes the subject reporters transcript) is submitted to respond to arguments asserted by Plaintiffs in their AB. Plaintiffs arguments include to downplay this cases public interest component and to portray it as not about any political issue. (AB, p. 31.) Circuit Rule 30-1.8(a) provides in relevant part: If the reply brief requires review of portions of the reporter's transcript or documents not included in the previously filed excerpts, appellant shall... at the time the reply brief is submitted, submit supplemental excerpts of record. Thus, where Taitzs RB requires review of portions of the reporter's transcript or documents not included in the previously filed excerpts, Defendants SER is proper (and in fact required under Circuit Rule 30-1.8(a)). Finally, Plaintiffs seek sanctions in an unstated amount against Taitz and her counsel based on their above arguments including for violating the Courts February 3, 2012 Order.... (Motion, p. 2.) Plaintiffs contend that such order required Defendants to have filed one, Consolidated Reply Brief. (Motion, p. 4.)

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Plaintiffs are wrong. Not only does the order not require the filing of a consolidated reply brief, the Court of Appeals has instructed Defendants to file two reply briefs herein (one by Taitz, and one by DOFF). (See, attached declarations.) As more fully discussed below, Plaintiffs Motion including their request for sanctions should be denied. II. Defendants Reply Arguments Regarding Plaintiffs New Arguments Citing to Verizon, Vess and Greeensprings Are Proper and Should Not Be Stricken Plaintiffs argue that they had the right to amend their Complaint, even though an anti-SLAPP motion was pending. (AB, p. 16.) Plaintiffs cite Verizon, Vess and Greensprings for this argument. (AB, pp. 16, 17 and 42.) Plaintiffs did not raise this argument, nor cite to Verizon, Vess or Greensprings, in the Court below. [1 Excerpts of Record (ER), pp. 107-154.] Thus, Plaintiffs are barred from raising this new argument for the first time in this appeal. Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). Defendants in their Reply Briefs distinguish Verizon, Vess and Greensprings, and demonstrate that such cases do not apply where the District Court ruled on the merits of Defendants anti-SLAPP motion and did not deem it moot. Defendants also establish that if such cases apply, that they required the District Court to have allowed them to challenge Plaintiffs First Amended Complaint (FAC) via an anti-SLAPP motion. (See, Taitzs RB, pp. 5-10.) In connection with this necessary reply argument, Defendants in the SER submit the District Courts June 29, 2011 order denying their request to file an

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anti-SLAPP motion as to the FAC. (SER, pp. 1-2.) Thus, such order is properly included in the SER under Circuit Rule 30-1.8(a). Defendants respectfully submit that if Verizon, Vess and Greensprings apply and the Court of Appeals is inclined to affirm the subject order, that the District Court as required by Verizon, Vess and Greensprings should be instructed to allow Defendants to challenge Plaintiffs FAC via anti-SLAPP motion. (See, Taitzs RB, pp. 6-10.) Plaintiffs argue that Defendants were somehow required to have requested this relief under Verizon, Vess and Greensprings in their Opening Briefs. (Motion, p. 6.) Plaintiffs miss the point - where they did not raise their new argument nor cite to Verizon, Vess or Greensprings in the Court below, it was impossible for Defendants to have addressed Plaintiffs argument until after they raised it, for the first time, in their AB. Defendants arguments responding to Plaintiffs new arguments based on Verizon, Vess and Greensprings are therefore proper under FRAP Rule 28(c) in reply to the appellees brief. Defendants were not required to (and in fact could not) raise such arguments in their Opening Briefs where Plaintiffs did not raise their arguments based on Verizon, Vess and Greensprings in the District Court. Defendants arguments thus reply to matter raised in the brief of the appellee. Kaufman, supra, 807 F.2d at 973. Defendants arguments are especially important -- and called for -- when a new point or issue ... is raised in the appellee's brief. Rodriguez, supra, 15 F.3d at 415, fn. 7. Plaintiffs motion to strike these portions of Defendants Reply Briefs should therefore be denied.

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III.

Plaintiffs Fail to Cite Legal Authority Supporting Their Request to Strike Defendants Reply Arguments Regarding Plaintiffs New Arguments Relying on Verizon, Vess and Greeensprings Plaintiffs cite a laundry list of cases for their above argument, none of which

support it for the simple reason that Defendants Reply Briefs properly reply to matter raised in the brief of the appellee. Kaufman, supra, 807 F.2d at 973. Plaintiffs cite Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003). (Motion, p. 6.) In Koerner, the Court of Appeals considered appellants argument where it came within the issues raised in his opening brief. The Court also pointed out that it is proper to consider an appellants reply argument addressing an issue raised in appellees brief. Id. at 1048, citing In re Riverside Linden Investment Co., 945 F.2d 320, 324 (9th Cir. 1991). Koerner thus does not support Plaintiffs. It supports Defendants position where their Reply Briefs properly respond to issues raised by Plaintiffs for the first time in their AB. (AB, pp. 16, 17 and 42.) In Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 (9th Cir. 2004), appellant for the first time in her reply brief raised a new issue (application of the Americans with Disabilities Act). (Motion, p. 7.) Appellants new argument did not respond to an argument raised in appellees brief. The Court of Appeals thus declined to consider appellants new argument. Id. at 843. Here, by contrast, Plaintiffs did not raise their new arguments based on Verizon, Vess and Greensprings in the District Court, and raised them for the first time in their AB. United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) is similar to Lentini. (Motion, p. 7.) In Rearden, appellant for the first time in his reply brief raised a new issue (admissibility of photographic evidence). Appellants new argument did not respond to an argument raised in appellees brief. The Court of Appeals thus declined to consider appellants new argument. Id. at 614. Unlike in Rearden,
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Plaintiffs did not raise their new arguments based on Verizon, Vess and Greensprings in the District Court, and raised them for the first time in their AB. In Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003), appellant for the first time in his reply brief challenged the constitutionality of certain provisions of the federal Immigration and Nationality Act. (Motion, p. 7.) Appellants new argument did not respond to an argument raised in appellees brief. The Court of Appeals on this basis declined to consider appellants new argument. Id. at 1066. Here, by contrast, Plaintiffs did not raise their new arguments based on Verizon, Vess and Greensprings in the District Court, and raised them for the first time in their AB. Defendants reply arguments are therefore proper when a new point or issue ... is raised in the appellee's brief. Rodriguez, supra, 15 F.3d at 415, fn. 7. In Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010), appellant for the first time in his reply brief raised a new issue (application of the burden of proof under the federal Prison Litigation Reform Act). (Motion, p. 7.) Appellants new argument did not respond to an argument raised in appellees brief. The Court of Appeals therefore did not consider appellants new argument. Id. at 1048. Unlike in Graves, Plaintiffs did not raise their new arguments based on Verizon, Vess and Greensprings in the District Court, and raised them for the first time in their AB. In Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990), appellant for the first time in her reply brief raised a new issue (sufficiency of a pretrial order). (Motion, p. 7.) Appellants new argument did not respond to an argument raised in appellees brief. The Court of Appeals thus declined to consider appellants new argument. Id. at 818. Here, by contrast, Plaintiffs did not raise their new arguments based on Verizon, Vess and Greensprings in the District Court, and raised them for the first time in their AB.

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The Court in Eberle also held: We could consider the issue had appellees raised it in their brief. Eberle, supra, 901 F.2d at 818. This decision (consistent with established law set out in Kaufman, Rodriguez and Riverside Linden Investment) supports Defendants position, and the denial of Plaintiffs motion. In Bolker v. Commissioner, 760 F.2d 1039 (9th Cir. 1985), appellant for the first time on appeal raised a new issue (application of the step transaction doctrine in an Internal Revenue Code section 1031 matter) not raised in the lower Court. (Motion, p. 7.) The issue in Bolker was not if appellant could address the issue in its reply brief; the issue was whether the argument could be raised on appeal at all. Bolker therefore does not support Plaintiffs argument. In fact, as applied herein, Bolker (consistent with Int'l Union of Bricklayers) would require that Plaintiffs new arguments based on Verizon, Vess and Greensprings, not raised in the District Court and raised them for the first time in their AB, not be considered. As demonstrated, Plaintiffs fail to cite any legal authority supporting their request to strike Defendants proper reply arguments regarding Plaintiffs new arguments based on Verizon, Vess and Greeensprings. IV. Defendants Reply Arguments Regarding Plaintiffs Arguments in Their Answering Brief That There is No Public Interest Component in This Case, Including with Regard to the Birther Movement, Are Proper and Should Not Be Stricken Plaintiffs devote the bulk of their AB to attempting to distance themselves from the Birther Movement and to downplay the obvious public interest component of this case, to attempt to remove it from the ambit of Code of Civil Procedure section 425.16(e)(3) and (4). (See, AB, pp. 22-24, 26-28, 30-31, 33, and 44.)
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(As demonstrated by Defendants, Plaintiffs arguments are ultimately irrelevant where an action may be a SLAPP suit under subparts (1) and (2) of section 425.16(e) without any separate demonstration by defendant that its speech or petition concerned an issue of public significance. Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1113 (1999). Plaintiffs do not argue that the case does not come within Code of Civil Procedure section 425.16(e)(1) or (2) and thus admit that relief under the anti-SLAPP statute is required.) The reporters transcript included in Defendants SER unequivocally establishes that Plaintiffs, despite their attempts to distance this case from the Birther Movement, have represented to the Court that the case falls squarely within the public interest component of Californias anti-SLAPP law. (SER, pp. 60-61.) Simply put, Plaintiffs speak out of both sides of their mouths on this issue. When they find it to their benefit to present the case as arising out of the Birther Movement (such as at the involved hearing), they take this position. When then find it to their benefit to take the opposition position (as they attempt to do in their AB), they make the opposite argument. Plaintiffs are estopped to do so. The doctrine of judicial estoppel is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). As with their proper reply arguments regarding Verizon, Vess and Greensprings, Defendants as a matter of law are entitled in their Reply Briefs to respond to Plaintiffs arguments that there is no public interest component in this case. Defendants arguments thus reply to matter raised in the brief of the appellee. Kaufman, supra, 807 F.2d at 973. Rodriguez, supra, 15 F.3d at 415, fn.
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7. Plaintiffs motion to strike these portions of Defendants Reply Briefs and the related portions of their SER should therefore be denied. V. Plaintiffs Fail to Cite Legal Authority Supporting Their Request to Strike Defendants Reply Arguments Regarding Plaintiffs Arguments That There is No Public Interest Component in This Case, Including with Regard to the Birther Movement Plaintiffs cite numerous cases for their argument that Issues, defenses and arguments not raised at the District Court cannot be raised in the Appeal. (Motion, p. 8; emphasis in original.) Plaintiffs contend that Defendants are somehow barred from citing to Plaintiffs representations to the District Court that this case directly involves the Birther Movement and control over such political movement as they establish alleged acts in furtherance of the person's right of petition or free speech... in connection with a public issue.... under California Code of Civil Procedure section 425.16(b)(1). Plaintiffs contend that these issues were not raised in the Court below and that Defendants are limited to what was said and introduced at the original proceeding. (Motion, p. 8.) Plaintiffs are wrong. First, Defendants in the District Court cited numerous alleged acts arising out of the parties involvement with the Birther Movement presenting a public issue and thus coming within Californias anti-SLAPP statute. (See, Taitzs OB, pp. 6-12.) Second, Defendants in their Opening Briefs demonstrate how they have met their burden under Code of Civil Procedure section 425.16 with reference to the parties involvement with the Birther Movement, and how this establishes protected activity under section 425.16(e)(3) and (4). (See, Taitzs OB, pp. 22-24, 26-28, 30-31, 33, and 44.)

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Defendants thus raised this issue, and this cases connection to the Birther Movement, in the District Court. Where Defendants have done so, Plaintiffs argument about issues raised for the first time on Appeal is simply inapposite. (Motion, p. 8.) Third, as a matter of law, Defendants in their Reply Briefs are entitled to reply to matter raised in the brief of the appellee. Kaufman, supra, 807 F.2d at 973. This is exactly what Defendants have done. Plaintiffs AB is devoted to arguing that this case has no connection to the Birther Movement and, per their argument, no public interest component within Code of Civil Procedure section 425.16(e)(3) and (4). (See, AB, pp. 22-24, 26-28, 30-31, 33, and 44.) Defendants, as a matter of law, are not required to remain silent as to Plaintiffs argument; they can properly address same in their Reply Briefs. FRAP Rule 28(c). Kaufman, supra, 807 F.2d at 973. Rodriguez, supra, 15 F.3d at 415, fn. 7. Relatedly, none of the cases cited by Plaintiffs for their argument regarding issues raised for the first time on Appeal, beginning with Janes v. Wal-Mart Stores, Inc., 279 F.3d 883 (9th Cir. 2002) through Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910 (9th Cir. 2006), support their argument. (Motion, pp. 8-9.) Where issues regarding the parties involvement in the Birther Movement, and that this case arises out of such political activities, were raised in the District Court and in Defendants Opening Briefs, Plaintiffs argument must fail. VI. Plaintiffs Did Not, As Required, Meet and Confer Before Filing Their Motion Before filing their Motion, Plaintiffs were required to meet and confer with Taitzs counsel to discuss the involved issues in good faith, determine Taitzs
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position, and inform the Court of Appeals in said Motion of Taitzs position. Circuit Rule 27-1(2) and Circuit Advisory Committee Note to Rule 27-1(Note 5). Plaintiffs made no attempt to meet and confer with Taitzs counsel before filing their Motion. Thus, for this reason alone, the Motion should be denied. VII. Plaintiffs Request for the Imposition of Sanctions Against Taitz and Her Counsel Should Be Denied Defendants argue that sanctions (in an unspecified amount) should be imposed against Taitz and her counsel under various FRAP and Circuit Rules based on arguments that Defendants are somehow barred from responding to their new arguments based on Verizon, Vess and Greeensprings, and that Defendants Reply Briefs contain issues raised for the first time on Appeal. As demonstrated herein, Plaintiffs are wrong. Where their underlying argument must fail, Plaintiffs request for sanctions based on that erroneous argument must also fail. Plaintiffs argue that Jeffrey Cunningham, counsel for Orly Taitz, Esq. violated the Courts February 3, 2012 Consolidation Order, by assisting Orly Taitz in filing a secondary Reply Brief on behalf of DOFF.... (Motion, p. 12.) By reference to secondary brief, Plaintiffs apparently contend that the Consolidation Order required Defendants to file one, combined Reply Brief. If Plaintiffs make this argument, it is plainly wrong. First, the February 3, 2012 order does not require Defendants to have filed one, combined Reply Brief. Such language does not appear in that order. Second, the Court of Appeals has accepted Taitzs and DOFFs respective Reply Briefs without comment, including any notice of filing deficiency. (See, Exhibits A-D to the attached Cunningham Declaration.) If Plaintiffs argument was correct (and it is not), those Reply Briefs would have been rejected with a related notice of filing deficiency.
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Third, and most importantly, the Court of Appeals has instructed Defendants to file two Reply Briefs, one for Taitz and one for DOFF. As testified in the attached Declaration of Michelle LaClair, paralegal for Taitzs counsel, on March 26, 2012 she telephoned the Clerks Office to get clarification of the requirements of the February 3, 2012 order. The Clerk to whom Ms. LaClair spoke informed her that, although the order consolidates the appeals, Taitz and DOFF were to file separate Reply Briefs. Defendants have complied with that instruction. Thus, there is no basis to impose sanctions against Taitz or her counsel related to her and DOFF (per the Courts instructions) filing separate Reply Briefs. Plaintiffs seek sanctions under Circuit Rule 30-2 for alleged violation of Circuit Rule 30-1. (Motion, pp. 9-10.) Circuit Rule 30-2(d) allows for sanctions where materials required to be included in the excerpts under these rules are omitted, or irrelevant materials are included.... Plaintiffs do not identify any section of Circuit Rule 30-1 allegedly violated. In fact, Defendants SER fully complies with Circuit Rule 30-1.8(a) which provides in relevant part: If the reply brief requires review of portions of the reporter's transcript or documents not included in the previously filed excerpts, appellant shall, unless exempt pursuant to Circuit Rule 30-1.2, at the time the reply brief is submitted, submit supplemental excerpts of record. As demonstrated above, Defendants Reply Briefs clearly required review of portions of the reporter's transcript or documents not included in the previously filed excerpts.... Thus, there is no legal or factual basis for sanctions under Circuit Rules 30-1 or 30-2. Plaintiffs seek sanctions under Circuit Rule 46-2 for alleged conduct violating applicable rules of professional conduct, or [failure] to comply with rules or orders of this Court. (Motion, p. 10.) Plaintiffs do not identify any rules
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of professional conduct nor rules or order of this Court allegedly violated. If Plaintiffs are relying on their argument regarding DOFFs secondary brief and the February 3, 2012 order, that argument is wrong as shown above. There is no legal or factual basis for sanctions under Circuit Rule 46-2. Moreover, a party cannot seek sanctions under Circuit Rule 46-2. Its subpart (b) provides: The Chief Judge or a panel of judges may initiate disciplinary proceedings based on conduct before this Court by issuing an order to show cause under this rule that identifies the basis for imposing discipline. Thus, only the Chief Judge or a panel of Judges may initiate any disciplinary proceeding under Circuit Rule 46-2. Plaintiffs relatedly seek sanctions under FRAP Rule 46(c). (Motion, p. 11.) There is no authority under FRAP Rule 46 to impose sanctions. The only forms of discipline authorized are suspension or disbarment. (See, FRAP Rule 46(b).) Further, as discussed herein, there is no legal or factual basis to impose sanctions requiring a finding of conduct unbecoming a member of the bar or for failure to comply with any court rule. Plaintiffs seek sanctions under 28 U.S.C. section 1927. (Motion, p. 11.) It provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. 28 U.S.C. section 1927 clearly does not apply herein. As discussed, Plaintiffs fail to show any conduct which so multiplies the proceedings in any case unreasonably and vexatiously.... Sanctions under section 1927 are valid only insofar as they are imposed for "bad faith actions or willful disobedience of court orders or rules." Zambrano v. City of Tustin, 885 F.2d 1473, 1481 (9th Cir. 1989).
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Plaintiffs make no showing of bad faith actions or any disobedience of court orders or rules. Moreover, section 1927 applies to excess costs, expenses, and attorneys' fees reasonably incurred.... Plaintiffs make no showing of any such expenses incurred by them. They do not seek a sanction in any stated amount. For these reasons, Plaintiffs request for the imposition of sanctions must fail. VIII. Conclusion As demonstrated, Plaintiffs motion is completely without merit and should be denied. Their related request for sanctions should similarly be denied.

Dated: May 3, 2012

/s/ - Jeffrey P. Cunningham By: _____________________________ Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Attorneys for Defendant and Appellant, ORLY TAITZ

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DECLARATION OF JEFFREY P. CUNNINGHAM, ESQ. SUPPORTING OPPOSITION BY DEFENDANT AND APPELLANT, ORLY TAITZ, TO APPELLEES MOTION TO STRIKE AND FOR SANCTIONS I, Jeffrey P. Cunningham, declare as follows: 1. I am an attorney duly licensed to practice law in all courts of the State

of California and the United States Courts for the Ninth Circuit, and am an associate in the law offices of Schumann, Rallo & Rosenberg, LLP, counsel for Defendant and Appellant, ORLY TAITZ (Taitz). I make this declaration based on my personal knowledge of the facts stated herein. I gained my knowledge of those facts by virtue of my participation in the events described herein, my preparation or review of the documents described herein, or some combination of the foregoing as identified herein. If called to testify to the facts stated herein, I could and would do so competently and truthfully. 2. This declaration is submitted in opposition to the Motion of Plaintiffs

and Appellees, LISA LIBERI, et al. (collectively Plaintiffs), to Strike Portions of Appellant Orly Taitzs Reply Brief and Supplemental Excerpt of Record; for Sanctions; and Attorney Fees (Motion). Plaintiffs made no attempt to meet and confer with Taitzs counsel before filing their Motion, in violation of Circuit Rule 27-1(2) and Circuit Advisory Committee Note to Rule 27-1(Note 5). 3. The Court of Appeals has accepted for filing the respective Reply

Briefs of Taitz and Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF). In this regard, attached hereto as Exhibits A and B, respectively, are true copies of the cover pages of such briefs, filed on April 19, 2012, which are incorporated herein by this reference as though fully set forth. 4. The Court of Appeals has not issued any notice of filing deficiency,
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or similar notice, regarding the Reply Briefs of Taitz and DOFF. 5. Attached hereto as Exhibit C is a true copy of the Courts April 24,

2012 order, requiring Taitz to file copies of her brief in paper format, which is incorporated herein by this reference as though fully set forth. 6. Attached hereto as Exhibit D is a true copy of the Courts May 1,

2012 order, requiring DOFF to file copies of its brief in paper format, which is incorporated herein by this reference as though fully set forth. 7. I am familiar with the Courts February 3, 2012 order, a copy of

which is attached to the accompanying Declaration of Michelle LaClair as Exhibit E. The order consolidates the appeals by Taitz and DOFF. 8. On March 26, 2012, I asked Ms. LaClair to contact the Court to get

clarification of the requirements of the February 3, 2012 order. She did so on that date. Also on March 26, 2012, Ms. LaClair informed me of the Courts instruction that Taitz and DOFF file separate Reply Briefs. Our office, for Taitz, has complied with the Courts instructions. I hereby declare under penalty of perjury under the laws of the State of California and of the United States of America that the above is true and correct. Executed on May 3, 2012, in Costa Mesa, California.

/s/ - Jeffrey P. Cunningham By: ________________________ Jeffrey P. Cunningham, Esq. Declarant

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DECLARATION OF MICHELLE LACLAIR SUPPORTING OPPOSITION BY DEFENDANT AND APPELLANT, ORLY TAITZ, TO MOTION TO STRIKE AND FOR SANCTIONS I, Michelle LaClair, declare as follows: 1. I am a paralegal of Schumann, Rallo & Rosenberg, LLP, counsel for

Defendant and Appellant, ORLY TAITZ (Taitz). I make this declaration based on my personal knowledge of the facts stated herein. I gained my knowledge of those facts by virtue of my participation in the events described herein, my preparation or review of the documents described herein, or some combination of the foregoing as identified herein. If called to testify to the facts stated herein, I could and would do so competently and truthfully. 2. I am familiar with the Court of Appeals February 3, 2012 order, a

copy of which is attached hereto as Exhibit E and is incorporated herein by this reference as though fully set forth. The order consolidates the appeals by Taitz and Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF). 3. On March 26, 2012, Jeffrey Cunningham, one of the attorneys for

Taitz, asked me to contact the Court of Appeals to get clarification of the requirements of the February 3, 2012 order. I did so on the same date. The Court Clerk to whom I spoke on that date informed me that, although such order consolidates the appeals, Taitz and DOFF were to file separate Reply Briefs. Also

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on March 26, 2012, I informed Mr. Cunningham of the Courts instruction that Taitz and DOFF file separate Reply Briefs. I hereby declare under penalty of perjury under the laws of the State of California and of the United States of America that the above is true and correct. Executed on May 3, 2012, in Costa Mesa, California. /s/ - Michelle LaClair By: ________________________ Michelle LaClair Declarant

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