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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 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-CV-00485-AG (AJWx)

OPENING BRIEF BY APPELLANT, ORLY TAITZ

Kim Schumann, Esq., CSBN 170942 Jeffrey 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 PAGE NO.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statement of the Case/Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Parties’ Background and Related Litigation . . . . . . . . . . . . 6 1. 2. Summary of Orly Taitz’s and Philip J. Berg’s Activities 6 Lisa Liberi’s and Lisa M. Ostella’s Background and Relationships 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 Public Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Applicable Legal Standards Under Section 425.16(e) 16 a. b. 2. Appellants’ Right of Petition . . . . . . . . . . . . . 17 Appellants’ Right of Free Speech . . . . . . . . . 18

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 by a Legislative, Executive, or Judicial Body, or any other Official Proceeding Authorized

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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 d. 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) . . . . . . . . . . . . . . . . . . . . . . . . 27 III. 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 Legal Sufficiency of Their Complaint Where They Made a Judicial Admission That The Complaint was Legally Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 a. Plaintiffs’ “Count One,” for Violation of the First and Fourteenth Amendment [sic] of the United States Constituion [sic], is Legally Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . 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 Evidence Sufficient to Sustain a Judgment in Their Favor on the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

IV.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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TABLE OF AUTHORITIES Federal Cases American Title Ins. Co. v. Lovelaw Corp. (9th Cir. 1988) 861 F.2d 224, 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 32, 33, 35 Batzel v. Smith (9th 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 (9th 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 (9th Cir. 1995) 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 (9th 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

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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 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

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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, 37 Code of Civil Procedure §425.16(a) . . . . . . . . . . . . . . . . . . . . . . 13, 14, 17, 37 Code 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 Code of Civil Procedure §425.16(e) . . . . 5, 12, 14, 16, 17, 18, 21, 22, 23, 26, 27 Code of Civil Procedure §425.16(e)(1) . . . . . . . . . . . . . . . . . . . . . 5, 20, 21, 22 Code of Civil Procedure §425.16(e)(2) . . . . . . . . . . . . . . . . . . . . . . . 5, 22, 23 Code of Civil Procedure §425.16(e)(3) . . . . . . . . . . . . . . . . . . 5, 24, 25, 26, 27 Code of Civil Procedure §425.16(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27 Code of Civil Procedure §425.16(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Code of Civil Procedure §527.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Code of Civil Procedure §904.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Civil Code §1798 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Civil Code §1798.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Civil Code §1798.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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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”), is a political dissent leader who, individually and through Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS, INC. (“DOFF”) (collectively “Appellants”), has been and remains the leader of this movement. Litigation is one of this movement’s 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 “filing complaints... 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 Obama’s qualifications to be President, and claims to carry the mantle of the “Birther Movement” through www.obamacrimes.com. [1 ER, 297; RJN, Exhibit 3.] Berg, assisted by Plaintiffs and Appellees, LISA LIBERI (“Liberi”) and LISA M. OSTELLA (“Ostella”), have interfered with Appellants’ websites and internet blogs, created misleading and competing websites such as “defendourfreedoms.net,” and diverted donations from DOFF to entities controlled

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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 movement’s followers including to reveal that Liberi is a convicted felon who cannot be allowed to control donations intended to advance the goals of the movement. The terms of Liberi’s parole forbid her from having any 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 Liberi’s 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’ corruption of 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” challenging the qualifications of President Obama to hold the highest office in the United States. Appellants have acted squarely within the protections of California’s antiSLAPP 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....” California Code of Civil Procedure § 425.16(b)(1). (Unless otherwise noted, all statutory references herein are to the California Code of Civil Procedure.) The essence of Appellants’ alleged actions
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involve 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 v. Dvorak, 40 Cal.App.4th 539, 548 (1995). Plaintiffs have but one purpose - to silence Appellants’ “whistleblowing” in furtherance of the political dissident movement by chilling Appellants’ exercise of their constitutional rights of petition and free speech. Appellants in their antiSLAPP 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 Liberi’s criminal record from becoming known to this movement’s followers, which would in turn deter followers from donating to Berg and his website, as well as to prevent revocation of Liberi’s probation. Plaintiffs’ frivolous case is intended to drain, and has drained, Appellants’ financially and emotionally, thus accomplishing Plaintiffs’ goal to diminish Appellants’ standing and influence in this political movement. Plaintiffs’ action has resulted in the 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 support 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 Court’s denial of Appellants’ anti-SLAPP motion. The order denying such motion should therefore be reversed.

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Statement of Jurisdiction On May 4, 2009, Plaintiffs and Appellees, Berg, Liberi, Ostella, THE LAW OFFICES OF PHILIP J. BERG, and GO EXCEL GLOBAL (collectively “Plaintiffs”), commenced this action in the United States District Court 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.] On June 3, 2010, the District Court in Pennsylvania severed the action and transferred the claims to each Defendant’s home jurisdiction, with a portion of the action being transferred to the United States District 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. California Code of Civil Procedure §§ 425.16(j) and 904.1.

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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: 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 issue or an issue of public interest.” Section 425.16(e)(4).

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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 Taitz’s and Philip J. Berg’s activities

Judge Robreno succinctly summarized Plaintiffs’ and Appellants’ history in his December 23, 2010 Memorandum: In sum, Plaintiffs and Defendants are part of the ‘birther’ movement, which is comprised of individuals who believe that President Obama is ineligible to be President of the United States because he was born in Kenya. At one time, Plaintiffs and Defendants worked together to attempt to prove President Obama’s illegitimacy but infighting among them led to this lawsuit. [1 ER, 238.] 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 dispute 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 movement’s 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. Taitz’s primary website is www.orlytaitzesq.com. (RFN, Exhibit 1.) It is the

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“World’s 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 DOFF’s original website, which included their creation of misleading websites such as “defendourfreedoms.net” designed to confuse the movement’s followers and siphon-off donations that otherwise would be received by DOFF. (This topic, including Taitz’s 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 Case No. SACV-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 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 Obama’s 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.)

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Like Taitz, Berg has pursued this movement’s agenda via litigation. For example, Berg has filed cases challenging President Obama’s eligibility. (See, Berg v. Obama, U.S.D.C., District of Columbia Case No. 1:08-cv-01933; RFN, Exhibit 4.) 2. Lisa Liberi’s and Lisa M. Ostella’s 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 the political dissident movement. Appellants submitted with their motion documents evidencing Liberi’s criminal record, including convictions for grand theft, forgery, and forgery of an official seal under California’s 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 unless made payable to you and not have any blank checks in your possession without permission of the probation officer... Neither possess nor use any credit card without permission of the probation officer... The Defendant is not to file any lawsuit/legal action without prior contact with probation officer.... [1 ER, 196-197.] One of Plaintiffs’ improper purposes herein was to silence Appellants’ “whistleblowing” to the political dissident movement about Liberi’s 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 donations to Berg impossible, as no rationale follower of this movement would place money in the hands of a convicted felon such as Liberi.
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Liberi’s 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 Taitz in connection with DOFF’s 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 motion Plaintiffs 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 Complaint’s “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).

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On April 25, 2011, Appellants’ filed their anti-SLAPP motion. [1 ER, 155188.] On May 5, 2011, Plaintiffs filed their opposition to said motion. [1 ER, 117141.] On May 27, 2011, Appellants filed their reply 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, 1024.] On June 14, 2011, the Court issued its order denying the motion. [1 ER, 4-9.] DOFF filed its Notice of Appeal on June 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 Appellants’ alleged acts in furtherance of their rights 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 DOFF’s website to criticize Taitz and promote Berg to the political dissident movement. Plaintiffs allege that “Ostella changed the PayPal script in the donations button to reflect her own account and removed Taitz’s accounts from the site.” [1 ER, 264.] It was in the public’s 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.]

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!

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.] ! 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 Liberi’s criminal history) of same, including that Liberi’s husband was on parole and had set up two accounts accepting credit card donations for Berg’s foundation. It was in the public’s interest to know of Liberi’s criminal record, particularly to protect donors against Plaintiffs’ possible theft of such donations, including potentially toward payment of Liberi’s obligation for criminal restitution. ! Appellants allegedly contacted Liberi’s probation officer in New

Mexico, and the San Bernardino County District Attorney, informing them of Liberi’s 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

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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 furtherance 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 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 under § 425.16. Its order should be reversed.

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Legal Discussion I. Standard of Review A. De novo standard of review regarding denial of an anti-SLAPP motion to strike under California Code of Civil Procedure section 425.16 The Court of Appeal in Thomas v. Quintero, 126 Cal.App.4th 635, 624-625 (2005) held: A ruling on a special motion to strike under § 425.16 is reviewed de novo. [Citation.] This includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [the plaintiff's] causes of action arose from acts by [the defendant] in furtherance of [the defendant's] right of petition or free speech in connection with a public issue. [Citation.] [Only when] these two conditions are satisfied, [do] we … then independently determine, from our review of the record as a whole, whether [the plaintiff] has established a reasonable probability that he would prevail on his claims. [Citation.]” (Emphasis added.) B. Legal standards applicable to an anti-SLAPP motion to strike under California Code of Civil Procedure section 425.16 The California Legislature has declared that freedom of speech and the right to petition the 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 disturbing increase 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 interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

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(b)(1) A cause of action against a person arising from 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the 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 the liability 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 Court’s determination on this issue is subject to de novo review. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219, 1232 (2003).

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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 a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must “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. 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).

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II. The District Court, as a Matter of Law, Erred in Concluding that Appellants Did Not Meet Their Burden 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 or free speech under the United States or California Constitution in connection with a public issue" includes: (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, (3) 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, or (4) 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 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.

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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 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 into all four categories of § 425.16(e). The District Court’s 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, in California

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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 aspect of the right of petition.” Section 425.16 (e) defines an “act in furtherance of a person’s 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. 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 movement’s primary tool to advance its goals - litigation and other petitioning activity spearheading a nationwide debate on such public issue. Appellants have 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

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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 or even “crackpot.” However, the Court’s 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 entitled 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.

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2.

Appellants’ alleged 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 Liberi’s probation officer in New Mexico, and the San Bernardino County District Attorney, informing them of Liberi’s 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 Liberi’s 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 official proceeding authorized by law....” as required by § 425.16(e)(1) and thus per se protected activity under the anti-SLAPP statute.

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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 in Briggs 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 made in, or in connection with an issue under consideration or review by, the specified proceeding or body. Thus these clauses safeguard free speech and petition conduct aimed at advancing self government, as well as conduct aimed at more mundane pursuits. Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official 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 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 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 Court’s 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)(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 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 Liberi’s probation officer in New Mexico, and the San Bernardino County District Attorney, informing them of Liberi’s 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.]

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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 Court’s 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)(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 reporting that 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 on various websites and blogs regarding the criminal record of Liberi. [1 ER, 268.] As a matter of law, such alleged activities constituted “written... statement[s] or writing[s] made in a

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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 about the fortunes of Ampex, he did so by posting messages on the Yahoo! message board for Ampex. The question here is whether such postings were made in a public forum, traditionally defined as “‘a place that is open to the public where information is freely exchanged.’ ” (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1006.) The term “public forum” includes forms of public communication other than those occurring in a physical setting. Thus the electronic communication media may constitute public forums. Web sites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum for purposes of section 425.16. (ComputerXpress, Inc. v. Jackson, supra, at p. 1007.) Thus the Yahoo! message board maintained for Ampex was a public forum. Id. at 1576; emphasis added. Ninth Circuit cases interpret “public forum” under § 425.16(e)(3) to include websites. (See, Troy 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
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“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 in Rivero v. AFL-CIO, 105 Cal.App.4th 913, 923 (2003) surveyed cases interpreting the meaning “public interest” under the antiSLAPP statute and held that covers a broad range of protected conduct: None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity 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 at p. 651 [extensive "media coverage"]; Seelig, supra, 97 Cal.App.4th at pp. 807-808 [discussion of participant in "a television show of significant interest to the public and the media"]), conduct that could directly affect a large number of people beyond the direct participants (Damon, supra, 85 Cal.App.4th 468; Ludwig, supra, 37 Cal.App.4th 8; Dowling, supra, 85 Cal.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, 89 Cal.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 in Sipple, 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 in Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 651 (1996), disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, (2002). Such movement, and the underlying controversy arising out of Plaintiffs’ attempts to silence Appellants political speech, inherently concern a “topic of widespread,

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public interest” as discussed in M.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 Obama’s 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 Court’s 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.]

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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 public interest” as required by section 425.16(e)(4)

Appellants’ alleged statements qualify as “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 public interest” under § 425.16(e)(4) for the same reasons, explained above, that they are protected activity per se under § 425.16(e)(3). The meaning and application of “public interest” under § 425.16(e)(4) is the same as that under § 425.16(e)(3). Tuchscher, supra, 106 Cal.App.4th at 1233. As discussed above, this case presents the strongest possible set of facts squarely presenting free speech and petition activity protected per se under § 425.16(e)(4). Thus, the District Court’s 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)(4). [1 ER, 8.]

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III. The District Court, as a Matter of Law, Erred in Concluding that Plaintiffs Met Their Burden Under California Code of Civil Procedure Section 425.16(b)(1) to Demonstrate a Probability of Prevailing as Against Appellants A. As a matter of law, Plaintiffs did not meet their burden under section 425.16(b)(1) to 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 the de novo standard. Thomas, supra, 126 Cal.App.4th at 624-625. Tuchscher, supra, 106 Cal.App.4th at 1232. A plaintiff’s 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).

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Plaintiffs admitted that they did not satisfy this first requirement of their burden: The second prong is whether the Plaintiffs have demonstrated a probability of prevailing on the claim. Plaintiffs agree they must amend their Complaint 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. Taus, supra, 40 Cal.4th at 713-714. The District Court ignored this essential component of Plaintiffs’ 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 legally 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 party’s 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.

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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 Court’s disregard of Plaintiffs’ burden under 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 of a complaint in the face of a plaintiff’s 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 plaintiff’s 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 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. Plaintiffs’ first 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, California Civil Code section 1798 et seq.
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(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, and Meister 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 are not 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 “Defamation Per Se, Slander and Libel,” is legally insufficient Plaintiffs’ common law claims are based on California law, given that the case is pending in California 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 California Laws.” [1 ER, 125: 5-8.] Thus, per Plaintiffs, their second claim fails to state a sufficient claim under California law.

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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
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would be based on California law. California Code 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 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 is dispositive 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 States Trademark Act. Section 1125(a)(1) refers to: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or 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)), covered activities must relate to goods or services which have some effect on interstate or foreign commerce

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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 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 any sufficient claim upon which their sixth “claim” could be based.

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Further, it appears that Plaintiffs’ sixth 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, 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 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 Taitz 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 Complaint was legally insufficient. A plaintiff’s 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 submitted declarations with Plaintiffs’ opposition. [1 ER, 142-154.] Appellants submitted memoranda of evidentiary objections to such declarations. [1 ER, 4756.] The District Court failed to rule on such objections, instead stating that the
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Court “has reviewed the objections 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 admit or exclude evidence only if the error affects a substantial right of the party and: (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 the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. Here, Appellants filed timely evidentiary objections to the declarations of Liberi and Berg. The District Court tacitly overruled the objections. Such error “affects a substantial right of” Appellants where, as shown in the objections, Plaintiffs failed to submit competent or admissible evidence and the Court relied on such insufficient evidence to find that “Plaintiffs have sufficiently made a prima facie showing of facts that would, if proved, support a judgment in their favor.” [1 ER, 8.] Appellants have thus preserved their rights to seek appellate review of the District Court’s overruling of their objections. Whether a district court correctly construed the hearsay rule is a question of law reviewed de novo. United States v. Gilbert, 57 F.3d 709, 711 (9th Cir. 1995). Appellants’ objections included hearsay objections under Fed. R. Evid. 801 et seq. [1 ER, 47-56.] Thus, as to the District Court’s overruling of these objections, the de novo standard applies. As to the remaining objections, the abuse of discretion standard would apply. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995). The District Court committed reversible error in overruling Appellants’ objections. Where Plaintiffs did not submit competent and admissible evidence, they failed to satisfy their burden under § 425.16(b)(1). Matson, supra,
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40 Cal.App.4th at 548. Rosenaur, supra, 88 Cal.App.4th at 274. For these reasons, the District Court’s order should be reversed. IV. Conclusion California’s anti-SLAPP statute declares: “The Legislature finds and declares that there has been a disturbing increase 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 interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Section 425.16(a). This case falls squarely within the protections of this statute where Plaintiffs’ frivolous action is solely intended to chill Appellants’ exercise of their rights of free speech and petition, and to discourage their participation in matters of great public importance. For the reasons stated herein, the District Court, as a matter of law, erred in denying Appellants’ anti-SLAPP motion to strike under California Code of Civil Procedure section 425.16. For the reasons stated herein, Taitz respectfully submits that the order denying that motion should be reversed and an order granting said motion be entered.

Dated: December 19, 2011

By:

/s/ - Jeffrey P. Cunningham _____________________________ Kim Schumann, Esq. Jeffrey Cunningham, Esq. Counsel for Defendant and Appellant, Orly Taitz

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CERTIFICATE OF COMPLIANCE This brief contains 9,955 words, excluding the parts of the brief exempted by Fed. R. App. P. Rule 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. Rule 32(a)(5) and the type style requirements of Fed. R. App. P. Rule 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect in Times New Roman font size 14.

Dated: December 19, 2011

/s/ - Jeffrey P. Cunningham By: ________________________________ Kim Schumann, Esq. Jeffrey Cunningham, Esq. Counsel for Defendant and Appellant, Orly Taitz

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Kim Schumann, Esq., State Bar #170942 Jeffrey P. Cunningham, Esq., State Bar #151067 2 SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 3 Costa Mesa, CA 92626 Telephone (714) 850-0210 4 Facsimile (714) 850-0551 Email: pcook@srrlawfirm.com
1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1PROOF OF SERVICE

Attorneys for Defendant/Appellant, ORLY TAITZ

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LISA LIBERI, et al.

) ) Plaintiffs/Appellees, ) ) vs. ) ) ORLY TAITZ, et al. ) ) Defendants/Appellants. ) ) ) ) ) ) _______________________________________)

Case No. 11-56164 D.C. Case No.: 8:11-cv-00485-AG U.S. District Court for Central California, Santa Ana DEFENDANT ORLY TAITZ’S CERTIFICATE OF SERVICE OF OPENING BRIEF

TO THE COURT, ALL PARTIES, AND/OR THEIR ATTORNEYS OF RECORD: I, Peter Cook, Esq., hereby certify a true and correct copy of Defendant/Appellant ORLY TAITZ’s Opening Brief was served on the following
Filing User(s) through the Court’s Electronic Filing System:

Gary G. Kreep, CA SBN 66482 UNITED STATES JUSTICE FOUNDATION 932 “D” St., Suite 2 Ramona, CA 92065 e-mail: usjf@usjf.net

Attorney for Plaintiffs, LISA LIBERI; LISA M. OSTELLA; GO EXCEL GLOBAL; PHILLIP J. BERG, ESQUIRE; and THE LAW OFFICES OF PHILLIP J. BERG

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Daryl Marc Crone, CA SBN 209610 CRONE HAWXHURST, LLP 10880 Wilshire Blvd., Suite 1150 Los Angeles, CA 90024 e-mail: daryl@cronehawxhurst.com Edward S. Chang, CA SBN 241682 JONES DAY 3161 Michelson Drive, Suite 800 Irvine, CA 92612 e-mail: echang@jonesday.com Orly Taitz, Esq., CA SBN 223433 29839 Santa Margarita Pkwy, Suite 100 Rancho Santa Margarita, CA 92688 e-mail: orly.taitz@gmail.com

Attorney for Defendant, ORACLE CORPORATION

Attorney for Defendant, INTELLIUS , INC.

Attorney for Defendant, DEFEND OUR FREEDOMS FOUNDATION, INC.

I, Peter Cook, Esq., hereby certify a true and correct copy of Defendant/Appellant ORLY TAITZ’s Opening Brief was served by mail to the following parties: Philip J. Berg, PA I.D. 9867 LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayetter Hill, PA 19444-2531 e-mail: philjberg@gmail.com James F. McCabe, CA SBN 104686 MORRISON | FORESTER 425 Market St. San Francisco, CA 94105 e-mail: jmccabe@mofo.com Attorney in Pro Se and for Plaintiffs, LISA LIBERI; LISA M. OSTELLA; THE LAW OFFICES OF PHILIP J. BERG; and GO EXCEL GLOBAL Attorney for Defendants, REED ELSEVIER, INC.; LEXISNEXIS GROUP, INC.; LEXISNEXIS, INC.; LEXISNEXIS RISK AND INFORMATION ANALYTICS GROUP, INC.; LEXISNEXIS RISK SOLUTIONS, INC.; LEXISNEXIS SEISINT, INC.; and LEXISNEXIS CHOICEPOINT, INC. Attorney for Defendant, DAYLIGHT CHEMICAL INFORMATION SYSTEMS, INC., and YOSEF TAITZ as Owner/CEO of DAYLIGHT CHEMICAL INFORMATION SYSTEMS, INC.

Steven Silverstein, CA SBN 64610 SILVERSTEIN & HUSTON 701 S. Parker St., Suite 5500 Orange, CA 92868

Executed on December 19, 2011, at Costa Mesa, California.

/s/ - Jeffrey P. Cunningham ______________________________ Jeffrey P. Cunningham, Esq.
-2PROOF OF SERVICE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3PROOF OF SERVICE

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