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

1 BARTLEY L. BECKER, SB# 70109

E-Mail: beckerdUbbslaw.com
2 WILLIAM E. PA ARES, SB# 187740
E-Mail: -liallares CZl11bbslaw.
com
3 LEWIS B ISBOIS BISGAARD & SMITH LLP
221 North Figueroa Street, Suite 1200
4 Los AngeleS~ California 90012
Telephone: 213) 250-1800
5 Facsimile: 213) 250-7900
6 Attorneys for Defendants LA W OFFICE OF ORL Y
TAITZ and DR. ORLY TAITZ, ESQ., D.D.S., J.D.
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA, SANTA ANA DIVISION
10

II CHARLES EDWARD LINCOLN, III, CASE NO. 8:10-cv-OI573-AG-PLA

12 Plaintiff, NOTICE OF MOTION AND MOTION
OF DEFENDANTS LAW OFFICE OF
13 v. ORLY TAITZ AND DR. ORLYTAITZ,
ESQ~p.D.S., J.D. TO STRIKE
14 DA YLIGHT CHEMICAL PLAH\JTIFF'S FIRST CLAIM FOR
INFORMATION SYSTEMS, RELIEF PURSUANT TO SECTION
15 INCORPORATED YOSEF TAITZ, 425.16 OF THE CALIFORNIA CODE
ORLY TAITZ, INC., APPEALING OF CIVIL PROCEDURE
16 DENTISTRY, LAW OFFICE OF ORLY
TAITZ(RICO Enterprise), DR. ORLY
17 TAITZ,- ESQ., D.D.SAJ.D., DEFEND
OUR FREEDOMS FvUNDATION, and Date: February 7,2011
18 all JOHN & JANE DOES 1-10, Time: 10:00 a.m.
Ctrm.: 100
19 Defendants.
20
21 [Filed concurrently herewith Request for
Judicial Notice) Declaration of Uri)':
22 Taitzh Declaration of William E. Pallares
and (Proposed) Order.]
23
·24

25

26
27
28
LEWIS
BRISBOIS 4830-2006-9384.1
BISGAARD
&SMIIHUP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 2 of 23 Page ID #:229

1 PLEASE TAKE NOTICE that on February 7,2011, at 10:00 a.m., or as soon

2 thereafter as the matter may be heard in Courtroom 10D in the above-entitled court
3 located at 411 West Fourth Street, #1053, Santa Ana, California 92701, Defendants
4 Law Office ofOrly Taitz and Dr. Orly Taitz, Esq., D.D.S., J.D. (hereinafter
5 "Defendants") will and hereby do move to strike Charles Edward Lincoln, III
6 ("Plaintiff") first claim for relief, malicious prosecution, to the First Amended
7 Complaint, pursuant to section 425.16 of the California Code of Civil Procedure.
8 Defendants bring this motion the grounds that: (1) Defendants were engaged in a
9 First Amended Activity (filing documents with the United States District Court,
10 Southern District of Florida in the matter of Marsha G. Rivernider, et al. v. Us.
11 Bank Association, et at. Case No. 09-81255-Civ-Dimitrouleas/Snow) (hereinafter
12 referred to as the "Florida Action"), pursuant to pending litigation and ongoing
13 judicial proceedings; and (2) Plaintiff cannot meet his burden to establish a
14 probability he will prevail on the merits of his claim for malicious prosecution.
15 Specifically, Plaintiff complains that Defendants made false charges of forgery
16 . in the Florida Action. However, any alleged charges of forgery were made in a
17 subsidiary proceedings to the pending litigation. To support a claim for malicious
18 prosecution, defendant must have commenced an independent action. Without the
19 commencement of an independent action, Plaintiff's malicious prosecution claim
20 fails as a matter of law. In taking Judicial Notice of the Florida Action's civil
21 docket, the evidence will demonstrate that any alleged charges of forgery were
22 communications made in response to a court order.
23 This motion is based upon this Notice of Motion and Motion, the
24 accompanying Memorandum of Points and Authorities, the Request for Judicial
25 Notice, the Declarations of Orly Taitz, Esq. and the Declaration of William E.
26 Pallares, Esq., filed concurrently herewith, the pleadings and papers on file in this
27 action, and upon such other oral argument and/or documentary matters as may be
28 presented to this Court at or before the hearing on this Motion.
LEWIS
BRISBOIS
BISGAARD
4830-2006·9384.1 -1-
&SI'v1IlHUP MOTION TO DISMISS PURSUANT CASE NO, 8:1O-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 3 of 23 Page ID #:230

1 This Motion is made following a meet and confer between Defendants'

2 counsel and Plaintiff, pursuant to Local Rule 7-3, on December 30, 2010.
3 Respectfully submitted,
4 DATED: January 6,2011 LEWIS BRISBOIS BISGAARD & SMITH LLP
5
6 By lsi William E. Pallares
William E. Pallares
7 Attorneys for Defendants LA W OFFICE OF
ORL Y TAITZ and DR. ORL Y TAITZ, ESQ.,
8 D.D.S., J.D.
9
10
11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
LEWIS
BRISBOIS 4830-2006-9384.1. -2-
BrSGAARD
& Sfv1llHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 4 of 23 Page ID #:231

1 TABLE OF CONTENTS
2 Pa2e
3 l. INTRODUCTION 1
4 2. FACTUAL AND PROCEDURAL BACKGROUND 1
5 A. Plaintiff's First Claim For Relief Is For Malicious
Prosecution .............................. 2
6
B. The Florida Action 3
7
C. The Florida Court Issued An Order To Show Cause
8 Re Sanctions 4
9 D. Pursuant To The Florida Court's Order To Show Cause
Re Sanctions, Dr. Taitz Advised The Florida Court That
10 Her Signature Was Forged Because She Did Not Sign
The First Amended Motion To Substitute Counsel 5
11
E. The Florida Court Set An Evidentiary Hearing For The
12 OSC Re Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
13 F. Magistrate Judge Snow's Findings Of Fact And Conclusions
Of Law From The Evidentiary Hearing In The OSC Re
14 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15 3. THEANTI-SLAPP STATUTE GOVERNS THIS DISPUTE 7
16 A. The Anti-SLAP Statute Requires Dismissal Of Plaintiff's
First Claim For Malicious Prosecution 7
17
B. Defendants Have Met Their Burden Under The Anti -SLAPP
18 Statute 7
19 C. Plaintiff Must Establish He Will Prevail On His Malicious
Prosecution Claim 9
20
4. PLAINTIFF CANNOT SHOW THAT HE WILL PREVAIL ON
21 HIS MALICIOUS PROSECUTION CLAIM 9
22 A. Plaintiff's Claim For Malicious Prosecution Fails As A
Matter Of Law Because The OSC Re Sanctions Was A
23 Subsidiary Procedural Action To The Pending Florida
Action 10
24
B. Plaintiff Cannot Demonstrate That He Obtained A
25 Favorable Result From The OSC Re Sanctions . . . . . . . . . . . . . . . .. 11
26 C. Plaintiff Cannot Demonstrate That Defendants Acted
With Malice Regarding The OSC Re Sanctions 12
27
5. CONCLUSION 13
28
LEWIS
BRISBOIS 4830-2006-9384.1 -1-
BISGAARD
& Sl\iIfIH UP MOTION TO DISMISS PURSUANT· CASE NO. 8:IO-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 5 of 23 Page ID #:232

1 TABLE OF AUTHORITIES
2
3 Federal Cases
4 Batzel v. Smith
333 F.3d 1018 (9th Cir. 2003) .................................... 7
5
Vess v, Ciba-Geigy COYJ!..USA
6 317 F.3d 1097 (yth Cir. 2003) .................................... 7
7
State Cases
8
Adams v,Superior Court
9 2 Ca1.AppAth 521 (1999) 10
10 Albertson v. Raboff
185 Cal.App.2d 372 (1960) 13
11
Briggs v. Eden Council for Hope & Opportunity
12 19 Ca1.4th 110G(1999) 7
13 Cabral v, Martins
177 Cal.AppAth 471 (2009) 7
14
HMS Capital, Inc. v. Lawyers Title Co.
15 r18 CaLAppAth 204 (2004) 9
16 Lossing v. Superior Court
207 Cal.App.3d 635 (1989) 9
17
Macias v. Hartwell
18 55 Cal.AppAth 699 (1997) 9
19 Merlet v. Rizzo
64 Cal.AppAth 53 (1998) 9, 11
20
Northrup v, Baker
21 202 Cal.App.2d 347 (1962) 13
22 People v. Sims
32 Ca1.3d 468 (1982) 12
23
Rusheen v. Cohen
24 37 Ca1.4th 1048 (2006) 8
25 Sheldon 4J;pel Co. v, Albert & Oliker
47·Cal.3d 863 (1989) 9,12
26
Teitelbaum Furs, Inc. v. Dominion Insurance Co., Ltd.
27 58 Ca1.2d 601 (1962) 12
28
LEWIS
BRISBOIS 4830-2006-9384.1 -n-
BISGAARD
&stv1r1HUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 6 of 23 Page ID #:233

1 Vella v. Hudgins
20 Ca1.3d 251 (1977) 12
2
Wilson v. Parker, Cover & Chidester
3 28 Ca1.4th 811 (2002) 9
4
State Statutes
5
Cal. Civ. Proc. Code § 425.16(a) 7
6
Cal. Civ. Proc. Code § 425.16(b)(1) 7
7
Cal. Civ. Proc. Code § 425. 16(e)(1) 8
8
Cal. Civ. Proc. Code § 425.16(e)(1) and (2) 7
9
Code a/Civil Procedure § 425.16 1
10
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14

15

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21

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25

26

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LEWIS
BRISBOIS 4830-2006-9384.1 -111-
BISGAARD
&SMllHliP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 7 of 23 Page ID #:234

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 1. INTRODUCTION
3 Plaintiff Charles E. Lincoln, III ("Plaintiff~) has sued Defendants Law Office
·4 ofOrly Taitz and Dr. Orly Taitz, Esq., D.D.S., J.D. ("Defendants") for multiple
5 claims, including the claim of malicious prosecution. The basis of Plaintiff s claim is
6 that Defendants allegedly falsely charged Plaintiff of forgery in pending litigation in
7 the State of Florida. Any alleged communication or charge made during a judicial
8 proceeding or before a judicial body falls within the anti-SLAPP statute, pursuant to
9 California Code of Civil Procedure Section 425.16. To succeed under a claim of
10 malicious prosecution, Plaintiff must demonstrate that the alleged communication or
11 charge commenced an independent proceeding against Plaintiff. The evidence will
12 demonstrate that no such independent proceeding occurred. In fact, the proceeding
13 Plaintiff complains about, an order to show cause re sanctions, was brought sua
14 sponte and arose from pending litigation. Subsidiary procedural matters do not give
15 rise to a malicious prosecution claim.
16 Further, the evidence will further show that Plaintiff cannot satisfy the
17 elements for a claim of malicious prosecution: that being, a favorable termination
18 and malice on the part of Defendants.
19 Accordingly, Defendants respectfully request that this Court grant their motion
20 to strike Plaintiffs first claim for relief in his First Amended Complaint.
21
22 2. FACTUAL AND PROCEDURAL BACKGROUND
23 On November 5, 2010, Plaintiff filed his First Amended Complaint ("FAC'~)
24 against Defendants, asserting claims for breach of contract, breach of fiduciary duty,
25 legal malpractice and malicious prosecution.l' Defendants acknowledged receipt of
26
27
28 11 See FAC at 2:1-3, referenced as Dkt. #5 on the court's civil docket
LEWIS sheet, attached as Exhibit B to the Declaration of William E. Pallares at ,-[3.
BRISBOIS 4830-2006·9384.1 -1-
BISGAARD
&SMlTHuP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 8 of 23 Page ID #:235

1 the FAC on November 8,201 O.ll

2 A. Plaintiffs First Claim For Relief Is For Malicious Prosecution.

3 Plaintiff's claim for malicious prosecution alleges that Defendants "falsely
4 charged Plaintiff of forging her signature (or signing without permission) on certain
5 motions filed in the United State District Court for Southern District of Florida in the
6 Court of Judge William P. Dirnitrouleas.t'" The matter Plaintiff refers to is entitled
7 Rivernider, et al. v. Us. Bank National Association, United States District Court,
8 Southern District of Florida, Case No. 9:09-cv-81255 WPD, (hereinafter referred to
9 as the "Florida Action". yv Plaintiff also alleges that Defendants "filed her affidavits
10 or declarations maliciously with intent to defame Lincoln. "11
11
12 B. The Florida Action.
13 On August 28,2009, three plaintiffs, including Charles E. Lincoln, III,
14 proceeded pro se and filed a complaint pertaining to a note and mortgage in the
15 amount of $729,000 on real estate located in Palm Beach, Florida - the Florida
16 Action ..§1 On September 24,2009, defendant in the Florida Action, U.S. Bank, filed a
17 Motion to dismiss the complaint-" On October 13, 2009, after the Florida plaintiffs'
18 time for filing a response had elapsed, the Florida court issued an Order to Show
19 Cause why the motion should not be granted. Exhibit A to Request for Judicial
20 Notice (hereinafter referred to as "RJN"). The Florida plaintiffs were directed to
21 show cause no later than October 23, 2009. ld. at p. 6.
22
23 l/
See Pallares at ~4.
24 '2/ See FAC at 6:25-7:1.
25
See Exhibit A attached to the PaIlares at ~2.
26
See FAC at 7:6-6, Dkt. 5.
27 fl./
See Exhibit A attached to the Pallares at ,-r2,Dkt. 1.
28 11
LEWIS ld., Dkt. 8.
BRISBOIS
BISGAARD
4830-2006-9384.1 -2-
&SIvlllH UP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-01573-AG (FLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 9 of 23 Page ID #:236

1 On October 22,2009, Defendant Dr. Orly Taitz filed with the court a Motion
2 to Substitute Counsel for Pro Se Litigants and Motion for Additional Time to
3 Respond to Motion to Dismiss. See Exhibit B to RJN at pp. 9-10. As Dr. Taitz is
4 not a member of the Florida State Bar, the motion requested a temporary waiver of
5 the local counsel requirement. Id. at pp. 9-10. On October 23, 2009, the Florida
6 court denied without prejudice the Motion to Substitute Counsel and Motion for
7 Additional Time. Exhibit C to RJN at p. 14. The Florida court gave the Florida
8 plaintiffs until October 30, 2009 to comply with the local rules to meet and confer
9 before filing a motion. Jd.
10 On October 30, 2009, a First Amended Motion to Substitute Counsel for
11 Pro Se Litigants and Motion for Enlargement of Time Until November 30,2009, to
12 Respond to Motion to Dismiss was filed, purportedly bearing the signature of
13 Dr. Orly Taitz. Exhibit D to the RJN at pp. 17-20. On November 2, 2009, the court
14 issued two orders - a second order to show cause and an order denying the First
15 Amended Motion to Substitute Counsel. Exhibits E and F to RJN at pp. 26 & 29-31.
16 The order denying the First Amended Motion to Substitute counsel indicated
17 that Dr. Orly Taitz "failed to comply with Rules 2 and 4 of the Special Rules
18 Governing the Admission and Practice of Attorneys." Exhibit F to RJN at pp. 30-
19 31:& Around November 3, 2009, Dr. Taitz received the Florida court's order denying
20 the First Amended Motion to Substitute Counsel."
21 The Florida court's order stated that Dr. Taitz "made no attempt to file a
22 verified petition for admission pursuant to Rule 2 of the Special Rules Governing the
23 Admission and Practice of Attorneys," and concluded that she "proceeded
24 improperly to file motions without being admitted to practice in this district and
25
26
27
See also Declaration of Defendant Orly Taitz at ~6.
28
LEWIS [d. at ~5.
BRISBOIS 4830-2006-9384.1 -3-
BISGAARD
&SMflHUP
MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 10 of 23 Page ID
#:237

1 without obtaining local counsel." Id. at p. 31.lQI

2 On November 6,2009, Dr. Taitz prepared a correspondence to the Honorable
3 William P. Dimitrouleas, United States District Judge, to respond to the court's
4 order, informing Judge Dimitrouleas that she did not file the First Amended Motion
5 to Substitute Counsel.l" Dr. Taitz' November 6, 2009 correspondence further stated
6 as follows:
7 "I have signed an initial substitute of counsel for
Mr. Lincoln to assist him in his real estate case in Idaho
8 and Florida with the understanding that local counsel will
be retained by Mr. Lincoln in both states. As Mr. Lincoln
9 failed to retain local counsel in either Idaho or Florida, I
have indicated to him that I can't represent him. I have no
10 idea who filed those subsequent motions as I do not
represent plaintiffs in this case."
11
12 (Emphasis added.j-" On November 10, 2009, the Florida court issued Notice of
13 Receipt of Dr. Taitz' correspondence. Exhibit G to RJN at p. 35.
14 On November 12, 2009, the Florida plaintiffs filed their Combined Response
15 to Second Order to Show Cause. Exhibit H to RJN at pp. 38-74. Plaintiff Charles E.
16 Lincoln, Ill's affidavit in support of the Combined Response indicated that
17 "Dr. Taitz has since October 27, 2009, taken steps to withdraw as my counsel." Id. at
18 p. 57, Lincoln's affidavit at ~5.
19
20 c. The Florida Court Issued An Order To Show Cause Re Sanctions.
21 On November 12,2009, the Florida Court issued a third Order to Show Cause,
22 directing the Florida plaintiffs and Dr. Taitz to show cause no later than
23 November 27,2009, why sanctions should not be imposed for filing fraudulent
24 documents with the Court. Exhibit I to RJN at pp. 76-77.
25
26 1QI
Id. at ~6.
27
Id.. at ~7.
28
LEWIS See Exhibit A attached to Taitz Decl. at ~7.
BRISBOIS 4830-2006-9384,1 -4-
BISGAARD
&SIv1I1H UP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 11 of 23 Page ID
#:238

1 D. Pursuant To The Florida Court's Order To Show Cause Re

2 Sanctions, Dr. Taitz Advised The Florida Court That Her Signature
3 Was Forged Because She Did Not Sign The First Amended Motion
4 To Substitute Counsel.
5 On November 30, 2009, the Florida court entered Dr. Taitz' response to the
6 court's OSC re sanction. Exhibit J to RJN at pp. 79-86. Dr. Taitz reiterated that her
7 purported signature on the First Amended Motion to Substitute Counsel was a
8 forgery. Id. at p. 81, Taitz Decl. at ~~7-9. She further explained that she suspected
9 plaintiff Charles E. Lincoln, III to have signed the pleading. Id. at p. 83.
10 On December 14, 2009, Dr. Taitz filed a Request for Judicial Notice regarding
11 plaintiff Charles E. Lincoln, Ill's disbarment in the State of Florida. Exhibit K to
12 RJN at pp. 88-103. On December 21,2009, Dr. Taitz filed Additional Information
13 To Order To Show Cause regarding information from the State of Texas where
14 plaintiff Charles E. Lincoln, III allegedly signed pleadings on a behalf of a Texas
15 practitioner without authority. Exhibit L to RJN at pp. 105-110.
16
17 E. The Florida Court Set An Evidentiary Hearing For The OSC Re
18 Sanctions.
19 On December 29,2009, the Florida Court set an evidentiary hearing on
20 January 12, 20010 for its Order to Show Cause re sanctions (Exhibit M to RJN at
21 p. 112), stating the matter was before the court sua sponte after receiving filings from
22 both plaintiff Charles E. Lincoln, III and Dr. Taitz relative to the First Amended
23 Motion to Substitute Counsel. Jd. Both the Florida plaintiffs and Dr. Taitz were
24 ordered the attend the hearing. Id. at p. 113.
25 On January 12,2010, the United States Magistrate Judge Lurana S. Snow
26 convened the hearing and indicated that the matter had been referred to her by
27 "Judge Dimitrouleas, based on communications that he received indicating there may
28 have been a pleading filed with a forged signature, which is really the only issue here
LEWIS
BRISBOIS 4830-2006-9384.1 -5-
BISGAARD
&SMJIHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 12 of 23 Page ID
#:239

1 today." Exhibit N to RJN at p. 117. At this hearing, Magistrate Judge Snow

2 questioned Dr. Taitz who testified that she did not sign the First Amended Motion to
3 Substitute Counsel but suspected plaintiff Charles E. Lincoln, III did. [d. at pp. 119-
4 121.
5 During the course of the hearing, plaintiff Charles E. Lincoln, III and his
6 counsel admitted that Mr. Lincoln signed the First Amended Motion to Substitute
7 Counsel. Id. at pp. 122, 123 & 126. Based on plaintiff Charles E. Lincoln, Ill's
8 testimony, Magistrate Judge Snow expressed her grave concerns that Mr. Lincoln
9 would duplicate an attorney's signature with no indication that he was signing on
10 behalf of that attorney. Id. at pp. 124-125 & 127-130.
11
12 F. Magistrate Judge Snow's Findings Of Fact And Conclusions Of
13 Law From The Evidentiary Hearing In The OSC Re Sanctions.
14 Based on the evidence, Magistrate Judge Snow found that plaintiff Charles E.
15 Lincoln, III "prepared, signed and filed the First Amended Motion to Substitute
16 Counsel." Exhibit 0 to RJN at p. 145. Judge Snow further found that Mr. Lincoln,
17 rather than sign his own name "for" Dr. Taitz, "utilized an approximation for
18 Dr. Taitz' signature." Id. At the time of filing, Judge Snow concluded that "plaintiff
19 Lincoln correctly or incorrectly believed he was authorized to prepare, sign and file
20 the pleading on behalf of Dr. Taitz." Id. Accordingly, Judge Snow found he did not
21 do so in an attempt to perpetuate a fraud on the court. Id.
22 Judge Snow concluded that the imposition of sanctions against the plaintiffs in
23 the Florida action was not warranted. Id. at p. 147. As to Dr. Taitz, Judge Snow
24 concluded that she was "not convinced that Dr. Taitz acted in bad faith in her
25 communication with the Court." Id. at p. 146. Therefore, there was not a sufficient
26 basis to impose sanctions against Dr. Taitz. [d.
27 Finally, the parties and witnesses were ordered to pay their own attorney's
28 fees. ld. at p. 147.
LEWIS
BRISBOIS 4830-2006-9384.1 -6-
BISGAARD
&SMIIHUP MOTION TO DISMISS PURSUANT CASE NO. 8;1O-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 13 of 23 Page ID
#:240

1 3. THE ANTI-SLAPP STATUTE GOVERNS THIS DISPUTE

2 A. The Anti-SLAPP Statute Requires Dismissal Of Plaintiff's First
3 Claim For Malicious Prosecution
4 "Motions to strike a state law claim under California's anti-SLAPP statute may
5 be brought in federal court." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109
6 (9th Cir. 2003). The anti-SLAPP statute was "enacted to allow for early dismissal of
7 meritless first amendment cases aimed at chilling expression through costly, time-
8 consuming litigation." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). The
9 statute "shall be construed broadly," Cal. Civ. Proc. Code § 425. 16(a), and
10 interpreted "in a manner 'favorable to the exercise of freedom of speech, not its
11 curtailment. '" Briggs v. Eden Council for Hope & Opportunity, 19 Ca1.4th 1106,
12 1119 (1999).
13
14 B. Defendants Have Met Their Burden Under The Anti-SLAPP Statute
15 Under the anti-SLAPP statute, Defendants carry the initial burden to show that
16 Plaintiff s malicious prosecution claim arises from an "act" made in connection with
17 a public issue or an issue of public interest, in furtherance of Defendants' right of
18 free speech under the United States or California Constitutions. Cal. Civ.Proc. Code
19 § 425.16(b)(l). An "act" includes (1) "any written or oral statement or writing made
20 before a ... judicial proceeding, or any other official proceeding authorized by law;
21 [or] (2) any written or oral statement or writing made in connection with an issue
22 under consideration or review by a ... judicial body, or any other official proceeding
23 authorized by law." Cal. Civ.Proc. Code § 425.l6(e)(1) & (2). Defendants meet
24 these standards in this case.
25 Under Section 425.15 subdivision (e)(l) and (2), "all communicative acts
26 performed by attorneys as part of their representation of a client in a judicial
27 proceeding or other petitioning context are per se protected as petitioning activity by
28 the anti-SLAPP statute." Cabral v. Martins, 177 Ca1.AppAth 471,480 (2009); See,
LEWIS
BRISBOIS 4830-2006-9384.1 - 7-
BISGAARD
&SMIIHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 14 of 23 Page ID
#:241

1 e.g. Rusheen v. Cohen, 37 Cal.4th 1048, 1056 (2006) [anti-SLAPP statute protects
2 "communicative conduct such as the filing, funding, and prosecution of a civil
3 action," including such acts when "committed by attorneys in representing clients in
4 litigation"] .
5 Here, Defendant Dr. Taitz' November 6, 2009 communication to the Florida
6 court was in connection with an issue under judicial review: that being, the Florida
7 court's denial of the First Amended Motion to Substitute Counsel. Exhibit F to RJN.
8 In its order denying the First Amended Motion to Substitute counsel, the Florida
9 court chided Defendant Dr. Taitz for failing to comply with local rules and for
10 improperly filing motions with the court. Id. In response, Defendant Dr. Taitz
11 communicated with the Florida court, advising the court she did not file the First
12 Amended Motion to Substitute Counsel and did not know who signed the motion.
13 Exhibit G to RJN. Under Cabral, Defendant Dr. Taitz' communicative act to the
14 Florida court is protected as petitioning activity by the anti-SLAPP statute.
15 After receiving plaintiff Charles E. Lincoln, Ill's response to the Second Order
16 to Show Cause, the Florida court issued its Order to Show Cause re sanctions.
17 Exhibit I to RJN. Pursuant to the Florida court's order, Defendant Dr. Taitz filed
18 pleadings with the Florida court stating that she did not sign the First Amended
19 Motion to Substitute Counsel and that she suspected plaintiff Lincoln of doing so.
20 Exhibits J, K, and L to RJN. Under Section 425.l6(e)(l), these communicative acts
21 are protected as statements made before a judicial proceeding: that being; the Florida
22 court's OSC re sanctions. Plaintiff complains that these statements, made pursuant
23 to the court OSC, falsely charged him of forgery in an attempt to defame him. FAC
24 6:25-7:1 & 7:6-6, Dkt. 5. Yet, statements made before a judicial proceeding or
25 judicial body are protected speech under the anti-SLAPP statute.
26 Accordingly, Defendants have met their burden under the anti-SLAPP statute,
27 shifting the burden onto Plaintiff to show a reasonable probability he will prevail on
28 his malicious prosecution claim.
LEWIS
BRISBOIS 4830-2006-9384.1 -8-
BISGMRD
&SMIIHUP
MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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I C. Plaintiff Must Establish He Will Prevail On His Malicious

2 Prosecution Claim.
3 Since Defendants have met their initial anti-SLAPP burden, the burden shifts-
4 to Plaintiff - to establish, "by competent and admissible evidence," a reasonable
5 probability that he will prevail on his malicious prosecution claim at trial. Macias v.
6 Hartwell, 55 Cal.AppAth 669,675 (1997) (Emphasis added). Plaintiff "cannot rely
7 on the allegations of the complaint, but must produce evidence that would be
8 admissible at trial.' HMS Capital, Inc. v. Lawyers Title Co., 118 Cal.AppAth 204,
9 212 (2004). The Court "should grant the (anti-SLAPP] motion if, as a matter of law,
10 the defendant's evidence supporting the motion defeats the plaintiffs attempt to
11 establish evidentiary support for the claim." Wilson v. Parker, Cover & Chidester,
12 28 Cal. 4th 811, 821 (2002).
13
14 4. PLAINTIFF CANNOT SHOW THAT HE WILL PREVAIL ON HIS
15 MALICIOUS PROSECUTION CLAIM.
16 In order to establish a claim for malicious prosecution of either a criminal or
17 civil proceeding, a plaintiff must demonstrate "that the prior action (1) was
18 commenced by or at the direction of the defendant and was pursued to a legal
19 termination in [plaintiffs favor]; (2) was brought without probable cause ... ; and (3)
20 was initiated with malice ... " Merlet v. Rizzo, 64 Ca1.App.4th 53, 58 (1998); citing
21 Sheldon Appel Co. v. Albert & DUker, 47 Ca1.3d 863,871-872 (1989). California
22 courts have concluded that subsidiary procedural actions cannot support a claim for
23 malicious prosecution. Merlet, 64 Cal.AppAth at 59-60; see also Lossing v. Superior
24 Court, 207 Cal.App.3d 635 (1989) [An application for an order to show cause
25 regarding contempt does not give rise to a malicious prosecution claim.].
26 In order for Plaintiff to prevail in his malicious prosecution claim, he must
27 demonstrate that the OSC re sanction hearing was an independent proceeding from
28 the Florida Action. Further, Plaintiff must demonstrate that Defendants commenced
LEWIS
BRISBOIS 4830-2006·9384.1 -9-
BISGAARD
&SMIIHLLP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-01573-AG(PLAX)
TO ANTI-SLAP STATUTE
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1 the OSC proceeding in the Florida Action. Failure to demonstrate Defendants

2 commenced an independent action renders Plaintiff s malicious prosecution claim
3 meritless.
4
5 A. PlaintifFs Claim For Malicious Prosecution Fails As A Matter Of
6 Law Because The OSC Re Sanctions Was A Subsidiary Procedural
7 Action To The Pending Florida Action.
8 California courts have determined that an action "which is a continuation of an
9 existing proceeding" does not give rise to a malicious prosecution claim. ld. "A
10 malicious prosecution claim cannot be grounded upon actions taken within pending
11 litigation." Adams v. Superior Court, 2 Cal.AppAth 521, 528 (1999). The Florida
12 court's OSC re sanctions was a proceeding within the pending Florida Action. The
13 Florida court simply initiated, sua sponte, a subsidiary procedural action to
14 determine whether fraudulent documents had been filed in the action before the
15 court.
16 The Florida plaintiffs, including Mr. Lincoln, were ordered to show cause why
17 the Florida defendant's motion to dismiss should not be granted. In response to this
18 Court's order, Defendant Dr. Taitz filed on behalf of the Florida plaintiffs the Motion
19 to Substitute Counsel which was denied without prejudice. The Florida plaintiffs
20 were given until October 30, 2009 to refile their motion. After the Florida court
21 denied the First Amended Motion to Substitute Counsel and provided notice to all
22 parties, Dr. Taitz advised the Florida court she did not file the pleading. Shortly
23 thereafter, the Florida court, sua sponte, set an Order to Show Cause re sanctions. At
24 no time during the Florida Action did Defendant Dr. Taitz commence an independent
25 action against Plaintiff.
26 Plaintiff s claim centers on the allegation that Defendants "falsely charged
27 Plaintiff of forging her signature (or signing without permission) on certain motions
28 filed in the United State District Court for Southern District of Florida in the Court of
LEWIS
BRISBOIS 4830-2006-9384, I -10-
BISGAARD
&SMIIHUP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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1 Judge William P. Dimitrouleas." However, charges of forgery came after the Florida
2 Court issued an Order to Show Cause re sanctions when Defendant Dr. Taitz was
3 required to defend herself Defensive actions cannot be the basis for a malicious
4 prosecution claim. Meriet, 64 Cal.AppAth at 59. The evidence is clear that Plaintiff
5 cannot demonstrate that Defendants commenced an independent proceeding against
6 him. The OSC re sanctions was a subsidiary proceeding which arose out of the
7 pending Florida Action.
8 Without the commencement of an independent action) Plaintiff s malicious
9 prosecution claim fails as a matter of law.
10
11 B. Plaintiff Cannot Demonstrate That He Obtained A Favorable
12 Result From The OSC Re Sanctions.
13 The Florida court's OSC re sanctions applied to both the Florida plaintiffs and
14 Dr. Taitz. After the evidentiary hearing, Magistrate Judge Snow found, based on
15 Plaintiff Charles E. Lincoln) Ill's admission, that he signed an approximation of
16 Dr. Taitz' signature. Judge Snow further concluded that he did so, believing
17 "correctly or incorrectly') he had authority to do so. Based on these factual findings)
18 Judge Snow concluded that Plaintiff did not intend to defraud the Florida court and
19 that Defendant Dr. Taitz did not act in bad faith in her communications with the
20 court. Judge Snow, therefore) did not issue sanctions and ordered each party to pay
21 their own attorney's fees. There was no favorable termination of the proceedings for
22 any of the parties other than they all avoided sanctions.
23 Without a termination of the proceedings in Plaintiff s favor, he cannot pursue
24 his malicious prosecution claim.
25 III
26 III
27 III
28 III
LEWIS
BRISBOIS 4830-2006-9384.1 -11-
BISGAARD
& SI\II1lHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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1 C. Plaintiff Cannot Demonstrate That Defendants Acted With Malice

2 Regarding The OSC Re Sanctions.
3 If this Court considers the OSC hearing an independent action, Plaintiff cannot
4 dispute that Magistrate Judge Snow made a conclusion of law that Defendant
5 Dr. Taitz did not act in bad faith in her communications with the Florida court.
6 Judge Snow's findings and conclusions of law were based on the affidavits filed with
7 the court and oral testimony at the January 12, 2010 hearing. Her findings and
8 conclusions preclude Plaintiff from relitigating the issues centered on Defendants'
9 intent and whether they acted with malice.
10 The doctrine of collateral estoppel precludes relitigation of issues argued and
11 decided in prior proceedings. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd.,
12 58 Ca1.2d 601, 604 (1962). To apply the doctrine, several threshold requirements
13 must be met which are: (1) the issue sought to be precluded from relitigation must be
14 identical to that decided in a former proceeding; (2) this issue must have been
15 actually litigated in the former proceeding; (3) it must have been necessarily decided
16 in the former proceeding; (4) the decision in the former proceeding must be final and
17 on the merits; and (5) the party against whom preclusion is sought must be the same
18 as, or in privity with, the party to the former proceeding. See People v. Sims,
19 32 Ca1.3d 468, 484 (1982). The party asserting collateral estoppel bears the burden
20 of establishing these requirements. See, e.g., Vella v. Hudgins, 20 Ca1.3d 251, 257
21 (1977).
22 Here, the issue of malice was litigated during the OSC hearing re sanctions in
23 the Florida Action. The malice element of the malicious prosecution tort goes to the
24 defendant's subjective intent in initiating the prior action. Sheldon Appel, 47 Ca1.3d
25 at p. 874. Judge Snow adjudged that the evidence was insufficient to find Defendant
26 Dr. Taitz acted in bad faith in her communications with the Florida court. The
27 malice required in an action for malicious prosecution is not limited to actual
28 hostility or ill will, but exists when the proceedings are instituted primarily for an
LEWIS
BRISBOIS
BISGAARD
4830-2006-9384.1 -12-
&SIv1IJH UP MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CY-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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#:246

1 improper purpose. Northrup v. Baker, 202 Cal. App. 2d 347,355 (1962); citing
2 Albertson v. Raboff, 185 Cal.App.2d 372 (1960). Defendants argue that they did not
3 commence an independent proceeding in the Florida Action. In the event the court
4 wishes to consider the issues of malice, Magistrate Judge Snows adjudged that
5 Defendants' communications with the Florida court were not for an improper
6 purpose. The lack of bad faith defeats malice.
7 Without the element of malice, Plaintiff's malicious prosecution claims fails as
8 a matter of law.
9
10 5. CONCLUSION
11 Based on the foregoing, Defendants respectfully request that this Court grant
12 the motion to strike Plaintiff s first claim for malicious prosecution. In the event this
13 Court grants Defendants motion, Defendants will move the court to seek their
14 attorney's fees.
15
16 Respectfully submitted,
17 DATED: January 6,2011 LEWIS BRISBOIS BISGAARD & SMITH LLP
18
19
By /s/ William E. Pallares
20 William E. Pallares
Attorneys for Defendants LAW OFFICE OF
21 ORL Y TAITZ and DR. ORL Y TAITZ, ESQ.,
D.D.S., J.D.
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LEWIS
BRISBOIS
BISGMRD
4830-2006·9384.1 -13-
&SMIlHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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1 FEDERAL COURT PROOF OF SERVICE

Lincoln v. Daylight Chemical - File No. 50012-2327
2
STATE OF CALIFORNIA~ COUNTY OF LOS ANGELES
3
At the time of service, I was over 18 years of age and not a party to the action.
4 My business address is 221 North Figueroa Street, SUIte 1200, Los Angeles,
California 900 12. I am employed in the office of a member of the bar of this Court
5 at whose direction the service was made.
6 On January ~ 2011f I served the following documenus): NOTICE OF
MOTION AND MuTIOr~ OF DEFENDANTS LAW OFFICE OF ORL Y TAITZ
7 AND DR. ORLY TAITZ~ ES8'1 D.D.S., J.D. TO STRIKE PLAINTIFF'S FIRST
CLAIM FOR RELIEF PURS ANT TO SECTION 425.16 OF THE CALIFORNIA
8 CODE OF CIVIL PROCEDURE
9 I served the documents on the following persons at the following addresses
(including fax numbers and e-mail addresses, If applicable):
10
SEE ATTACHED SERVICE LIST
11
The documents were served by the following means:
12
13 [] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses listed above and I deposited the
sealed envelope or package with the U.S. Postal Service, with the postage fully
14 prepaid.
15 [X] (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, I electronically
filed the documents with the Clerk of the Court using the CMIECF system,
16 which sent notification of that filing to the persons hsted above.
17 I declare under penalty of perjury under the laws of the United States of
America that the above is true and correct.
18
Executed on January 6,2011, at Los Angeles, California.
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LEWIS 28
BRISBOIS 4830-2006-9384.1. -14-
BISGAARD
&SMlJHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
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1 SERVICE LIST
2
3 Jonathan A. Ross, Esq. Dr. Orly Taitz, Esq.
Arnold S. Levine, Esq. 29839 Santa Margarita Parkway, # 100
4 Mark I. Melo, Esq. Rancho Santa Margarita, CA 92688
Bradley & Gmelich Tel: (949) 683-5411
5 700 North Brand Boulevard, 10th Floor Fax: (949)766-7603
Glendale, CA 91203-1422 orly. taitaz@TIai1.com
6 Tel: (818) 243-5200 Attorney for efend Our Freedoms
Fax: (818) 243-5266 Foundation, Orly Taitz, Inc.,
7 Attorneys for Defendants Daylight Appealing Dentistry
Chemical Information Systems,lnc.
S and Dr. YosefTaitz
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LEWIS 28
BRISBOIS 4830-2006-9384.1
BISGAARD
&SMIIHUP MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE
 Case 8:10-cv-01573-AG -PLA Document 18 Filed 01/07/11 Page 22 of 23 Page ID
#:249

1 FEDERAL COURT PROOF OF SERVICE

Lincoln v. Daylight Chemical - File No. 50012-2327
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3
At the time of servicet J was over 18 years of age and not a party to the action.
4 My business address is 2211'wrth Figueroa Street Suite 1200, Los Angeles,
California 90012. I am employed in the office of' a member of the bar of this Court
5 at whose direction the service was made.
6 On January~ 2011, I served the following documentis): NOTICE OF
MOTION AND MvTION OF DEFENDANTS LAW OFFICE OF ORL Y TAITZ
7 AND DR. ORLY TAITZ, ES8'1 D.D.S., J.D. TO STRIKE PLAINTIFF'S FIRST
CLAIM FOR RELIEF PURS ANT TO SECTION 425.16 OF THE CALIFORNIA
8 CODE OF CIVIL PROCEDURE
9 Iserved the documents on the following persons at the following addresses
(including fax numbers and e-mail addresses, If applicable):
10
SEE ATTACHED SERVICE LIST
11
The documents were served by the following means:
12
[X] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package
13 addressed to the persons at the addresses listed above and I deposited the
sealed envelope or package with the U.S. Postal Service, with the postage fully
14 prepaid.
15 [] (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, Ielectronically
filed the documents with the Clerk of the Court using the CM/ECF system,
16 which sent notification of that filing to the persons hsted above.
17 I declare under penalty of perjury under the laws of the United States of
America that the above is true and correct.
18
Executed on January 6, 2011, at Los Angeles, California.
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22 Laurie A. Wood
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LEWIS
BRISBOIS 4830-2006-9384. ]
BISGAARD
&SMIlHUP
MOTION TO DISMISS PURSUANT CASE NO. 8:1O-CV-OI573-AG (PLAX)
TO ANTI-SLAP STATUTE
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#:250

1 SERVICE LIST
2
3 Charles Edward Lincoln, III Phi1~ J. Berg
603 Elmwood Place, Suite 6 555 ndorra Glen Court Suite 12
4 Austin, TX 78705 Lafabette Hill, PA 1944 4-2531
Tel: 512-968-2500 phi1j erg@gmai1.com
5 charles.lincoln mrocketmai1.com
Plaintiff in Pro er Courtesy Copy
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LEWIS
BRISBOIS 4830-2006-9384.1
BISGAARD
&SMITHUP
MOTION TO DISMISS PURSUANT CASE NO. 8:10-CV-01573-AG (PLAX)
TO ANTI-SLAP STATUTE