liberi v doff (appeal - 9th circuit) appellant's (taitz) opening brief - transportroom.10.0

8/3/2019 LIBERI v DOFF (APPEAL - 9th CIRCUIT) APPELLANT'S (TAITZ) OPENING BRIEF - TransportRoom.10.0

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Case No. 11-56164

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lisa Liberi, et al.,

Plaintiffs/Appellees,

v.

Orly Taitz, Defend Our FreedomsFoundations, Inc., et al.,

Defendants/Appellants.

_________________________________

))))))))))))))

Appeal from the United StatesDistrict Court for the Central

District of California

Civil Action No.:8:11-CV-00485-AG (AJWx)

OPENING BRIEF BY APPELLANT,DEFEND OUR FREEDOMS FOUNDATION

Dr. Orly Taitz, , esq29839 Santa Margarita ste 100Rancho Santa Margarita CA 92688949-683-5411 Fax [email protected] for Defendant/Appellant,

TABLE OF CONTENTS

SECTION

Case: 11-56079 12/19/2011 ID: 8005596 DktEntry: 10 Page: 1 of 45


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PAGENO.

Introduction .......................................................................................................................1

Statement of Jurisdiction ....................................................................................................4

Issues Presented .................................................................................................................5

Statement of the Case/Procedural History .............................................................................6

A. Parties Background and Related Litigation ...........................................6

1. Summary of Orly Taitz s and Philip J. Berg s Activities ....6

2. Lisa Liberi

s and Lisa M. Ostella

s Background andRelationships to Philip J. Berg .....................................................8

B. Plaintiffs Complaint, Appellants anti-SLAPP Motion to

Strike and Denial of Such Motion ..........................................................9

Statement of Facts ..............................................................................................................10

A. Summary of Appellants Alleged Acts in Furtherance of their

Rights of Petition and Free Speech in Connection with

Public Issues .........................................................................................10

Summary of Argument .......................................................................................................12

I. Standard of Review .........................................................................................13

A. De Novo Standard of Review Regarding Denial of an

anti-SLAPP Motion to Strike Under California Code of

Civil Procedure Section 425.16 ..............................................................13

B. Legal Standards Applicable to an anti-SLAPP Motion to

Strike Under California Code of Civil Procedure

Section 425.16 .....................................................................................13



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II. The District Court, as a Matter of Law, Erred in Concluding that

Appellants Did Not Meet Their Burden of Proof Under Section

425.16(b)(1) to Show That Plaintiffs Complaint Arises Out of

Appellants Acts in Furtherance of Their Rights of Petition

Or Free Speech in Connection with a Public Issue ............................................16

A. Appellants Met Their Burden Under Section 425.16(b)(1)

Where Plaintiffs Complaint Clearly Arises Out of

Appellants Alleged Acts in Furtherance of Their Rights

Of Petition and Free Speech in Connection with PublicIssues ..................................................................................................16

1. Applicable Legal Standards Under Section 425.16(e) ............16

a. Appellants Right of Petition ............................................17

b. Appellants Right of Free Speech ......................................18

2. Appellants Alleged Acts in Furtherance of Their

Rights of Petition and Free Speech in Connection

With Public Issues ......................................................................20

a. Appellants Allegedly Made Written or Oral

Statement[s] or Writing[s] Made Before a

Legislative, Executive, or Judicial Proceeding,

Or Any Other Official Proceeding Authorized

By Law.... as Required by Section

425.16(e)(1) .....................................................................20

b. Appellants Allegedly Made Written or Oral

Statement[s] or Writing[s] Made in Connection

With an Issue Under Consideration or Review



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by a Legislative, Executive, or Judicial Body,

or any other Official Proceeding Authorized

by Law.... as Required by Section

425.16(e)(2) .....................................................................22

c. Appellants Allegedly Made Written or Oral

Statement[s] or Writing[s] Made in a Place

Open to the Public or a Public Forum in

Connection with an Issue of Public Interest...

as Required by Section 425.16(e)(3) .................................23

. Appellants Allegedly Engaged in Any Other

Conduct in Furtherance of the Exercise of

Constitutional Right of Petition or the

Constitutional Right of Free Speech in

Connection with a Public Issue or an Issue of

Public Interest as Required by Section

425.16(e)(4) .....................................................................27III. The District Court, as a Matter of Law, Erred In Concluding that

Plaintiffs Met Their Burden of Proof Under California Code of

Civil Procedure Section 425.16(b)(1) to Demonstrate the

Probability of Prevailing as Against Appellants .................................................28

A. As a Matter of Law, Plaintiffs Did Not Meet Their Burden

Under Section 425.16(b)(1) to Demonstrate the LegalSufficiency of Their Complaint Where They Made a

Judicial Admission That The Complaint was Legally

Insufficient ..........................................................................................28



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1. Plaintiffs Admitted that Their Complaint Was

Legally Insufficient and, Thus, as a Matter of Law,

Did Not Meet Their Burden Under Section

425.16(b)(1) ...............................................................................282. Plaintiffs Failed to Meet Their Burden to

Demonstrate that Their Complaint and Each of its

Claims were Legally Sufficient Under Section

425.16(b)(1) ...............................................................................30

a. Plaintiffs Count One, for Violation of the

First and Fourteenth Amendment [sic] of the

United States Constituion [sic], is LegallyInsufficient .......................................................................30

b. Plaintiffs Count Two, For Defamation Per

Se , Slander and Libel, is Legally Insufficient ...........31

c. Plaintiffs Count Three, for False-Light

Invasion of Privacy, is Legally Insufficient ...............32

d. Plaintiffs Count Four, for Harrassment,

is Legally Insufficient as well as Not Being a

Legally-cognizable Claim ..................................................32

e. Plaintiffs Count Five, for False

Designations and Descriptions of Facts,

is Legally Insufficient ........................................................33

f. Plaintiffs Count Six, for Injunctive Relief,

is Legally Insufficient and is Not a Separate

Claim for Relief ................................................................34

B. Plaintiffs Did Not Meet Their Burden of Proof Under

Section 425.16(b)(1) to Present Competent and Admissible



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Evidence Sufficient to Sustain a Judgment in Their Favor

on the Complaint ..................................................................................35

IV. PLAINTIFFS COULD NOT DEMONSTRATE PROBABILITY OFPREVAILING, AS THERE WAS NEVER ANY JURISDICTION IN THE

FEDERAL COURT.......................................................................................... 37

TABLE OF AUTHORITIES Federal Cases

American Title Ins. Co. v. Lovelaw Corp. (9 th Cir. 1988)861 F.2d 224, 226 ..............................................................................................................29, 32, 33, 35 Batzel v. Smith (9 th Cir. 2003)333 F.3d 1018, 1026 ...........................................................................................................4

California Motor Transport Co. v. Trucking Unlimited (1972)404 U.S. 508, 510 ..............................................................................................................18

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave. (1st Cir. 2002)284 F.3d 302 ......................................................................................................................34

Colligan v. Activities Club of New York, Ltd (2nd Cir. 1971)442 F.2d 686 ......................................................................................................................34

Erie Railroad Co. v. Tompkins (1938)304 U.S. 64, 78 ..................................................................................................................31, 32, 33, 35

Gertz v. Robert Welch, Inc. (1974)418 U.S. 323, 339-40 ..........................................................................................................19

Mindys Cosmetics, Inc. v. Dakar (9 th Cir. 2010)611 F.3d 590, 595 ..............................................................................................................4

N.A.A.C.P. v. Button (1963)371 U.S. 415, 445 ..............................................................................................................19

Parkway Baking Co. v. Freihofer Baking Co. (3rd Cir. 1958)255 F.2d 641 ......................................................................................................................34

Rendell-Baker v. Kohn (1982)457 U.S. 830, 837 ..............................................................................................................9, 30

Ruvalcaba v. City of Los Angeles (9 th Cir. 1995)



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64 F.3d 1323, 1328 ............................................................................................................36

Shelley v. Kraemer (1948)334 U.S. 1, 13 ....................................................................................................................9, 30

Troy Group, Inc. v. Tilson (2005)

364 F.Supp.2d 1149, 1153 ..................................................................................................24 United States v. Gilbert (9 th Cir. 1995)57 F.3d 709, 711 ................................................................................................................36

State Cases

Action Apartment Assn., Inc. v. City of Santa Monica (2007)41 Cal.4th 1232, 1250-51 ....................................................................................................18

Ampex Corp. v. Cargle (2005)128 Cal.App.4th 1569 .........................................................................................................24

Annette F. v. Sharon S. (2004)119 Cal.App.4th 1146, 1160 ................................................................................................16, 24

Averill v. Superior Court (1996)42 Cal.App.4th 1170, 1175 .................................................................................................17

Braun v. Chronicle Publishing Co. (1997)52 Cal.App.4th 1036, 1043 .................................................................................................14, 15, 16

Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1113, 1115, 1117-18 .................................................................................17, 21, 23

Church of Scientology v. Wollersheim (1996)42 Cal.App.4th 628, 651 .....................................................................................................25 City of Cotati v. Cashman (2002)29 Cal.4th 69, 78 ...............................................................................................................14

City of South Pasadena v. Department of Transportation (1994)29 Cal.App.4th 1280, 1293 .................................................................................................34

ComputerXpress, Inc. v. Jackson (2001)93 Cal.App.4th 993, 1004 ...................................................................................................15

Damon v. Ocean Hills Journalism Club (2000)

85 Cal.App.4th 468, 472.....................................................................................................

14, 24, 26 Equilon Enterprises v. Consumer Cause, Inc. (2002)29 Cal.4th 53 ......................................................................................................................25

Kibler v. N. Inyo County Local Hospital Dist. (2006)39 Cal.4th 192, 196-98 .......................................................................................................21, 23



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Martinez v. Metabolife Internat, Inc. (2003)113 Cal.App.4th 181, 187 ...................................................................................................15

Matson v. Dvorak (1995)40 Cal.App.4th 539, 548 .....................................................3, 14, 15, 26, 28, 29, 32, 33, 34, 35, 37

McCoy v. Hearst Corp. (1986)42 Cal.3d 835, 859 .............................................................................................................18, 19

Meister v. Regents of University of California (1998)67 Cal.App.4th 437, 446 .....................................................................................................31

M.G. v. Time Warner, Inc. (2001)89 Cal.App.4th 623, 629 .....................................................................................................26

Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLP (2005)133 Cal.App.4th 658, 672 ...................................................................................................15

Rivero v. AFL-CIO (2003)105 Cal.App.4th 913, 923-24 ..............................................................................................25

Rosenaur v. Scherer (2001)88 Cal.App.4th 260, 274 ...........................................................................12, 28, 29, 32, 33, 34, 35, 37

Seeling v. Infinity Broadcasting Corp. (2002)97 Cal.App.4th 798, 807 .....................................................................................................17

Sipple v. Foundation for Nat. Progress (1999)71 Cal.App.4th 226, 236-37 .................................................................................................21, 23, 25

Taus v. Loftus (2007)40 Cal.4th 683, 713-14 .......................................................................................................28, 29

Thomas v. Quintero (2005)125 Cal.App.4th 624-25, 635 ..............................................................................................13, 28

Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003)106 Cal.App.4th 1219, 1232-33 ..........................................................................................14, 27, 28

Federal Statutes

28 U.S.C. 1332 .................................................................................................................4 Federal Rule of Evidence 103 .............................................................................................36

State Statutes

Code of Civil Procedure 425.16 .........................................................................................12, 15, 19, 37Code of Civil Procedure 425.16(a) .....................................................................................13, 14, 17, 37Code of Civil Procedure 425.16(b) .....................................................................................13, 14 Code of Civil Procedure 425.16(b)(1)...........................................................................................2, 3, 5, 6, 12, 15, 16, 28, 29, 32, 33, 34, 35, 36



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

Introduction

This case arises out of an ongoing dispute involving the political dissident movement, including a

component known as the Birther Movement,by those challenging the qualifications of Barack Obama to

hold the office of President of the United States of America. Defendant and Appellant, ORLY TAITZ (Taitz

a political dissent leader who, individually and through Defendant and Appellant, DEFEND OUR FREEDOM

FOUNDATIONS, INC. (DOFF) (collectively Appellants), has been and remains the leader of this

movement.

Litigation is one of this movements tools to advance its goals, including several cases involving

Birther causes. [See, concurrently-filed Request for Judicial Notice (RJN).] Such litigation is a form of

petition for redress of grievances under the United States Constitution, Article I. Plaintiffs acknowledge

Appellants exercise of their right of petition regarding Taitz filingcomplaints... on behalf of Alan Keyes and

other Plaintiffs against the California Secretary of State and other Defendants regarding the Barry Soetoro

a/k/a Barack H. Obama citizenship issues. [Volume 1, Excerpts of Record (ER), 258.]

Plaintiff and Appellee, PHILIP J. BERG (Berg), is also involved in the political dissident movement

For example, Berg has filed a case challenging President Obamas qualifications to be President, and claims t

carry the mantle of the Birther Movement through www.obamacrimes.com.[1 ER, 297; RJN, Exhibit 3.]



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Berg, assisted by Plaintiffs and Appellees, LISA LIBERI (Liberi) and LISA M. OSTELLA (Ostella), hav

interfered with Appellants websites and internet blogs, created misleading and competing websites such as

defendourfreedoms.net, and diverted donations from DOFF to entities controlled

by Plaintiffs. Plaintiffs have interfered with Appellants political fundraising activities, crucial to fund litigation

and other activities in support of this movement.

To combat Plaintiffs wrongful acts, Appellants have exposed their wrongful tactics to the

movements followers including to reveal that Liberi is a convicted felon who cannot be allo wed to control

donations intended to advance the goals of the movement. The terms of Liberis parole forbid her from havingany involvement with such fundraising. Appellants have informed government authorities of Plaintiffs

actions and sought redress for same, including from the United States Supreme Court, Federal Bureau of

Investigation, and California Attorney General. Appellants have sought revocation of Liberis parole through

the San Bernardino County, California District Attorney.

At all times, Appellants have acted as necessary whistleblowers against Plaintiffs wrongful acts

which include diversion of political donations, have sought redress of their grievances from the federal and

California governments, and have exposed Plaintiffs corruptionof such movement. What Plaintiffs

mischaracterize as defamation is in fact Appellants exercise of their constitutional rights of petition and free

speech on issues of great public interest, including as to leadership of the Birther Movement challengingthe

qualifications of President Obama to hold the highest office in the United States.

Appellants have acted squarely within the protections of Californias anti-SLAPP statute in pursuing

acts in furtherance of the person's right of petition or free speech under the United States Constitution or the

California Constitution in connection with a public issue.... CaliforniaCode of Civil Procedure

425.16(b)(1). (Unless otherwise noted, all statutory references herein are to the CaliforniaCode of Civil

Procedure .) The essence of Appellants alleged actions involve the right to speak on political matters,



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regarded under the anti-SLAPP statute as the quintessential subject of our constitutional protections of the

right of free speech.Matson v. Dvorak , 40 Cal.App.4th 539, 548 (1995).

Plaintiffs have but one purpose -to silence Appellants whistleblowing in furtherance of the

political dissident movementby chilling Appellants exercise of their constitutional rights of petition and free

speech. Appellants in their anti-SLAPP motion clearly demonstrated that their alleged acts arose from

petitioning and free speech protected by the anti-SLAPP statute. Plaintiffs improper motives herein include to

prevent Liberis criminal record from becoming known to this movements followers, which would in turn

deter followers from donating to Berg and his website, as well as to prevent revocation of Liberis probation.

Plaintiffs frivolous case is intended to drain, and has drained, Appellants financially and emotionall

thus accomplishing Plaintiffs goal to diminish Appellants standing and influence in this political movementPlaintiffs action has resulted inthe evils which the anti-SLAPP statute was enacted to prevent.

Plaintiffs failed to meet their burden to demonstrate a probability of prevailing on their Complaint

against Appellants as required by 425.16(b)(1). Notably, Plaintiffs admitted that their Complaint was legally

insufficient and, thus, that they could not satisfy the first prong of their burden. Plaintiffs also failed to suppor

their (admittedly insufficient) claims with competent and admissible evidence, thus failing to satisfy the

second prong of their burden.

As demonstrated herein, no legal or factual basis supports the District Courts denial of Appellants

anti-SLAPP motion. The order denying such motion should therefore be reversed.

Statement of Jurisdiction

On May 4, 2009, Plaintiffs and Appellees, Berg, Liberi, Ostella, THE LAW OFFICES OF PHILIP J. B

and GO EXCEL GLOBAL (collectively Plaintiffs), commenced this action in the United States District Co

for the Eastern District of Pennsylvania (Civil Action No. 09-1898;Hon. Eduardo C. Robreno, Judge ).

Jurisdiction herein is predicated upon diversity of citizenship. 28 U.S.C. 1332. [1 ER, 255.]



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iv

On June 3, 2010, the District Court in Pennsylvania severed the action and transferred the claims to

each Defendants home jurisdiction, with a portion of the action being transferred to the United States Distric

Court for the Central District of California (Civil Action No.No. 8:11-CV-00485-AG (AJWx); Hon.

Andrew J. Guilford, Judge ). [1 ER, 4.]

On June 14, 2011, the District Court denied Appellants joint anti-SLAPP

motion to strike the Complaint. [1 ER, 4-9.] On June 27, 2011, DOFF filed its Notice

of Appeal from the subject order. [1 ER, 3.] On July 13, 2011, Taitz filed her Notice of

Appeal from the order. [1 ER, 1-2.]

Denial of an anti-SLAPP motion under California law is an appealable final decision within the

meaning of 28 U.S.C. 1291.Batzel v. Smith , 333 F.3d 1018, 1026 (9th Cir. 2003).Mindys Cosmetics, Inc. v.Dakar , 611 F.3d 590, 595 (9th Cir. 2010). In California state courts, denial of an anti-SLAPP motion is

immediately appealable. CaliforniaCode of Civil Procedure 425.16(j) and 904.1.

Issues Presented

The issues presented herein are:

1. Whether Appellants made a threshold showing that their alleged acts arose from protected

activity, specifically any act of that person in furtherance of the person's right of petition or free speech under

the United States Constitution or the California Constitution in connection with a public issue.... under

425.16(b)(1).

Relatedly, by application of the definition of "act in furtherance of a person's right of petition or free

speech under the United States or California Constitution in connection with a public issue" of 425.16(e),

the issues presented include:



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a. Whether Appellants made any written or oral statement or writing made before a

legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.... Section

425.16(e)(1).

b. Whether Appellants made any written or oral statement or writing made in

connection with an issue under consideration or review by a legislative, executive, or judicial body, or any

other official proceeding authorized by law.... Section 425.16(e)(2).

c. Whether Appellants made any written or oral statement or writing made in a place

open to the public or a public forum in connection with an issue of public interest.... Section 425.16(e)(3); or

d. Whether Appellants engaged in any other conduct in furtherance of the exercise of

the constitutional right of petition or the constitutional right of free speech in connection with a public issueor an issue of public interest. Section 425.16(e)(4).

2. Whether Plaintiffs met their burden to demonstrate a probability of prevailing on their

Complaint as against Appellants as required by 425.16(b)(1), by demonstrating the legal sufficiency of the

Complaint and establishing facts via competent and admissible evidence to sustain a favorable judgment.

Statement of the Case/Procedural History

A. Parties background and related litigation

1. Summary of Orly Taitzs and Philip J. Bergs activities

Judge Robreno succinctly summarized Plaintiffs and Appellants history in his December 23, 2010

Memorandum:In sum, Plaintiffs and Defendants are part of the birthermovement, whichis comprised of individuals who believe that President Obama is ineligible

to be President of the United States because he was born in Kenya. At onetime, Plaintiffs and Defendants worked together to attempt to provePresident Obamas illegitimacy but infighting among them led to thislawsuit.[1 ER, 238.]



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Judge Robreno correctly noted: Some of these parties have a long and complicated litigation history.

See e.g., Berg v. Obama, 586 F.3d 234 (3d Cir. 2009)... This litigation appears to be part of this overall disput

among the parties. [1 ER, 238, fn. 1.] Plaintiffs wish to silence Appellants whistleblowing activities toward

advancement of this movement, including as to Plaintiffs diversion of donations from the movements

followers, by chilling Appellants exercise of their rights of petition and free speech.

A brief history of the parties involvement is necessary to understand their relationships, and reveals

Plaintiffs improper motives driving this case. Taitz has been and remains the leader of this movement, both

individually and through various websites and blogs, including through DOFF and its former website. Taitzs

primary website is www.orlytaitzesq.com.(RFN, Exhibit 1.) It is the

Worlds Leading Obama Eligibility Challenge Web Site. Donations from followers of this movement are

necessary to fund its petition and free speech activities, including litigation advancing the causes championed

by Appellants. Taitz has been featured globally in thousands of television, radio and newspaper interviews

and documentaries.

Plaintiffs scheme forced Taitz to abandon DOFFs original website, which included their creation of

misleading websites such as defendourfreedoms.net designed to confuse the movements followers and

siphon-off donations that otherwise would be received by DOFF. (This topic, including Taitzs alleged

statements to defend her rights to express her political views through DOFF, is a subject of Plaintiffs

Complaint discussed below.)

Appellants subject website lists numerous cases brought by Taitz advancing the political dissident

movement. One example is Keyes, et al. v. Barack H. Obama, et al., U.S.D.C., Central District of California C

No. SA-CV-00082 (RFN, Exhibit 2.) Taitz represents all Plaintiffs in such case, including former Presidential

candidate Alan Keyes. Appeal in such case is pending before the Ninth Circuit Court of Appeals (Judges

Berzon, Fisher and Pregerson).

Berg purports to occupy a leadership position in this movement. For example, he maintains



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www.obamacrimes.com.(RFN, Exhibit 3.) Berg touts himself as the first Attorney who filed suit against

Barack H. Obama on August 21, 2008 challenging Obamas lack of Constitutionally Eligibility to serve as

President of the United States.... (RFN,Exhibit 3.) Berg solicits donations to offset the cost of the cases

concerning the eligibility of B.H. Soetoro/Obama.... (RFN,Exhibit 3.)

Like Taitz, Berg has pursued this movements agenda via litigation. For example, Berg has filed cases

challenging President Obamas eligibility. (See,Berg v. Obama, U.S.D.C., District of Columbia Case No. 1:08-

cv-01933; RFN, Exhibit 4.)

2. Lisa Liberis and Lisa M. Ostellas background and relationships to Philip J.Berg

Liberi is a convicted felon working with Berg as a paralegal and in connection with his activities in th

political dissident movement. Appellants submitted with their motion documents evidencing Liberis crimina

record, including convictions for grand theft, forgery, and forgery of an official seal under Californias Penal

Code. At least twenty-three criminal charges were brought against Liberi for multiple felonies. [1 ER, 191-

204.]

Liberi was sentenced to thirty-six months supervised probation on various terms, including the

following:Not maintain a checking account or complete or endorse any checks unlessmade payable to you and not have any blank checks in your possession without permission of the probation officer... Neither possess nor use anycredit card without permission of the probation officer... The Defendant isnot to file any lawsuit/legal action without prior contact with probationofficer.... [1 ER, 196-197.]

One of Plaintiffs improper purposes herein was to silence Appellants whistleblowing to the

political dissident movement about Liberis criminal record, her terms of probation, and violation of such

terms in connection with her involvement in diverting donations away from Appellants and fundraising

activities for Berg. Plaintiffs were fearful that if such information became publicly known it would make



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donations to Berg impossible, as no rationale follower of this movement would place money in the hands of a

convicted felon such as Liberi.

Liberis personal improper motivation herein was to prevent revocation of her probation, which

would result in her serving an eight year prison sentence, as a result of Appellants whistleblowing and

cooperation with officials toward revocation of such probation.

Ostella formerly worked as a webmaster for Taitzin connection with DOFFs former website. Ostella

is responsible for interfering with Appellants websites and internet blogs, creating misleading websites and

diverting donations from DOFF to entities controlled by Plaintiffs. [1 ER, 259.]

B. Plaintiffs Complaint, Appellants anti-SLAPP motion to strike and denial of such

motionPlaintiffs filed their 81-page Complaint on May 4, 2009. [1 ER, 252-335 .] Although it is largely

incomprehensible, the gravamen of the Complaint appears to be defamation and invasion of privacy. The

Complaint is not a required short and plain statement of Plaintiffs claims in violation of Fed. R. Civ. P. 8(a

It is blatantly improper in substance and format, containing numerous instances of evidence (e.g., emails and

photographs) being pasted into the pleading, and which are replete with frequent profanity and Plaintiffs

irrelevant editorial commentary.

Plaintiffs admitted that their Complaint was legally insufficient. [1 ER, 125: 5-8.] Representative of

Plaintiffs improper claims is the Complaints Count One for Violation of the First and Fourteenth

Amendment to the United States Constitution. [1 ER, 311-316.] As a matter of hornbook law, neither the

First nor Fourteenth Amendment apply to private conduct.Rendell-Baker v. Kohn , 457 U.S. 830, 837 (1982).

Shelley v. Kraemer , 334 U.S. 1, 13 (1948).

On April 25, 2011, Appellants filed their anti-SLAPP motion. [1 ER, 155-188.] On May 5, 2011,

Plaintiffs filed their opposition to said motion. [1 ER, 117-141.] On May 27, 2011, Appellants filed their reply



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memorandum with supporting documents, including memoranda of evidentiary objections to the

declarations of Berg and Liberi. [1 ER, 32-106.]

On June 13, 2011, the Court conducted a hearing on the motion. [1 ER, 10-24.] On June 14, 2011, the

Court issued its order denying the motion. [1 ER, 4-9.] DOFF filed its Notice of Appeal onJune 27, 2011.

[1 ER, 3.] On July 13, 2011, Taitz filed her Notice of Appeal from the order. [1 ER, 1-

2.]

Statement of Facts

A. Summary of Appellants alleged acts in furtherance of their rights of petition and free

speech in connection with public issues

Plaintiffs Complaint contains numerous instances of Appellantsalleged acts in furtherance of theirrights of petition and free speech in connection with public issues. A sampling of such allegations includes the

following:

Appellants allegedly published reports on the internet of Plaintiffs interference with

Appellants websites and internet blogs, creation of misleading websites and diversion of donations from

DOFF to entities controlled by Plaintiffs. Ostella used DOFFs website to criticize Taitz and promote Berg to

the political dissident movement. Plaintiffsallege that Ostella changed the PayPal script in the donations

button to reflect her own account and removed Taitzs accounts from the site. [1 ER, 264.] It was in the

publics interest, particularly the many adherents of this movement including its Birther component, to

know of Plaintiffs usurpation of Appellants website including their scheme to divert donations from

Appellants and to Plaintiffs. [1 ER, 259-277.]

Per Plaintiffs, Taitz wrote to the U.S. Supreme Court Justices seeking help in an investigation

regarding a criminal complaint she had filed with the Federal Bureau of Investigation regarding hacking into

her websites and tampering of her PayPal accounts... Taitz sent this same letter to the Secret Service and other

Governmental Law Enforcement Agencies. [1 ER, 262.]



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Appellants allegedly published the criminal record of Liberi. [1 ER, 268.] Liberi has an

extensive criminal record, including convictions for grand theft, passing checks on insufficient funds, forging

instruments for filing with government agencies, and forging an official seal. Liberi has been charged with

numerous other crimes. [1 ER, 272-280.] Appellants allegedly informed Berg (believing at the time he was

unaware of Liberis criminal history) of same, including that Liberis husband was on parole and had set up

two accounts accepting credit card donations for Bergs foundation. It was in the publics interest to know of

Liberis criminal record, particularly to protect donors against Plaintiffs possible theft of such donations,

including potentially toward payment of Liberis obligation for criminal restitution.

Appellants allegedly contacted Liberis probation officer in New Mexico, and the San

Bernardino County District Attorney, informing them of Liberis violation of the terms of her probation,including that Liberi could not possess nor use any credit card without permission of the probation officer.

[1 ER, 268, and 275-279.]

By any measure, and based on Plaintiffs own allegations, Appellants alleged acts were done in

furtherance of their rights of petition and free speech in connection with public issues all focused upon the

right to speak on political matters, regarded under the anti-SLAPP statute as the quintessential subject of

our constitutional protections of the right of free speech.Matson , supra , 40 Cal.App.4th at 548.

Summary of Argument

The order denying Appellants motion should be reversed. Appellants clearly met (and in fact

exceeded) their burden under 425.16(b)(1) to demonstrate that Plaintiffs Complaint arises out of

Appellants alleged acts in f urtherance of their rights of petition and free speech in connection with a public

issue. Appellants demonstrated protected activity coming within each subpart of

425.16(e) describing "act[s] in furtherance of a person's right of petition or free speech....

Conversely, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to demonstrate a probability

of prevailing as against Appellants. Notably, Plaintiffs made a judicial admission that the Complaint was



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legally insufficient. This admission was dispositive where a plaintiff must demonstrate that its complaint is

both legally sufficient and supported by a prima facie factual showing . Rosenaur v. Scherer , 88 Cal.App.4th

260, 274 (2001). Plaintiffs also failed to satisfy their burden to present competent and admissible evidence

making the required factual showing.

The District Court as a matter of law erred in misinterpreting and misapplying Appellants and

Plaintiffs burdens under425.16. Its order should be reversed.

Legal Discussion

I.

Standard of Review

A. De novo standard of review regarding denial of an anti-SLAPP motion to strike under

CaliforniaCode of Civil Procedure section 425.16

The Court of Appeal inThomas v. Quintero , 126 Cal.App.4th 635, 624-625 (2005) held:A ruling on a special motion to strike under 425.16 is reviewedde novo .[Citation.] This includes whether the anti-SLAPP statute applies to thechallenged claim. [Citation.] Furthermore, we apply our independentjudgment to determine whether [the plaintiff's] causes of action arose fromacts by [the defendant] in furtherance of [the defendant's] right of petitionor free speech in connection with a public issue. [Citation.] [Only when]these two conditions are satisfied, [do] we then independentlydetermine, from our review of the record as a whole, whether [the plaintiff]has established a reasonable probability that he would prevail on hisclaims. [Citation.] (Emphasis added.)

B. Legal standards applicable to an anti-SLAPP motion to strike under CaliforniaCode of

Civil Procedure section 425.16

The California Legislature has declared that freedom of speech and the right to petition the



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government for redress of grievances shall not be discouraged through abuse of the judicial process. Section

425.16(a) and (b) state:(a) The Legislature finds and declares that there has been a disturbingincrease in lawsuits brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interestto encourage continued participation in matters of public significance, andthat this participation should not be chilled through abuse of the judicialprocess. To this end,this section shall be construed broadly .

(b)(1) A cause of action against a person arising from any act of that personin furtherance of the person's right of petition or free speech under theUnited States Constitution or the California Constitution in connection witha public issue shall be subject to a special motion to strike, unless the courtdetermines that the plaintiff has established that there is a probability thatthe plaintiff will prevail on the claim.

(b)(2) In making its determination, the court shall consider the pleadings,and supporting and opposing affidavits stating the facts upon which theliability or defense is based." (Emphasis added.)

A defendant bringing an anti-SLAPP motion makes an initial prima facie showing that plaintiff's suit

arises from an act in furtherance of defendant's right of petition or free speech by demonstrating that the acts

underlying plaintiff's cause fit one or more of the categories spelled out 425.16(e).Braun v. Chronicle

Publishing Co., 52 Cal.App.4th 1036, 1043 (1997).

The definition of public interest within the anti-SLAPP law is broadly construed to include private

conduct that impacts a broad segment of society.Damon v. Ocean Hills Journalism Club,85 Cal.App.4th 468,

472 (2000). Relatedly, public discussion about the qualifications of those who hold or who wish to hold

positions of public trust presents the strongest possible case for applications of the safeguards afforded by the

First Amendment.Matson, supra , 40 Cal.App.4th at 548.

A cause of action arises from protected activity where the act underlying plaintiff's cause of action,

or the act which forms the basis for it was itself an act in furtherance of the right of petition or free speech.

City of Cotati v. Cashman , 29 Cal.4th 69, 78 (2002). The Courts determination on this issue is subject tode

novo review.Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219,



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1232 (2003).

The "arising from" prong encompasses any action based on protected speech or petitioning activity,

as defined in 425.16(e), regardless of whether plaintiff's lawsuit was intended to chill, or actually chilled,

defendant's protected conduct.Martinez v. Metabolife Internat., Inc., 113 Cal.App.4th 181, 187(2003). The

phrase "arising from" in 425.16 (b)(1) has been interpreted to mean that "the act underlying the plaintiff's

cause" or "the act which forms the basis for the plaintiff's cause of action" must have been an act in

furtherance of the right of petition or free speech.Braun , supra , 52 Cal.App.4th at 1043.

If a Court finds that defendant has made the threshold showing, it then determines whether plaintiff

has demonstrated a probability of prevailing on the claim. Section 425.16(b)(1). In order to establish aprobability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must must

demonstrate that the complaint is bothlegally sufficient and supported by a sufficient prima facie showing of

facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.Matson, supra , 40

Cal.App.4th at 548; emphasis added.

A complaint combining allegations of protected and nonprotected activity is subject to 425.16 if at

least one of the alleged underlying acts is protected conduct.Peregrine Funding, Inc. v. Sheppard Mullin

Richter Hampton LLP , 133 Cal.App.4th 658, 672 (2005). An anti-SLAPP motion may be granted as to some

causes of action, and denied as to other causes of action of a Complaint, as its requirements are to be applied

and determined as to each of plaintiffs claims.ComputerXpress, Inc. v. Jackson , 93 Cal.App.4th 993, 1004

(2001).

II.

The District Court, as a Matter of Law, Erred in Concluding that Appellants Did Not Meet Their Burden



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Under Section 425.16(b)(1) to Show that Plaintiffs Complaint Arises Out of Appellants Acts in

Furtherance of Their Rights of Petition or Free Speech in Connection with a Public Issue

A. Appellants met their burden under section 425.16(b)(1) where Plaintiffs Complaint

clearly arises out of Appellants alleged acts in furtherance of their rights of petition

and free speech in connection with public issues

1. Applicable legal standards under section 425.16(e)

A defendant meets its burden under 425.16(b)(1) by demonstrating that the acts underlying

plaintiff's cause fit one or more of the categories set out in 425.16(e).Braun , supra , 52 Cal.App.4th at 1043.

425.16(e) provides:As used in this section, "act in furtherance of a person's right of petition orfree speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writingmade before a legislative, executive, or judicial proceeding, or any otherofficial proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review bya legislative, executive, or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement or writing made in aplace open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of theconstitutional right of petition or the constitutional right of free speech inconnection with a public issue or an issue of public interest.

In determining whether a cause of action falls within the scope of subdivision (e), courts must

broadly construe the anti-SLAPP statute.Annette F. v. Sharon S., 119 Cal.App.4th 1146, 1160 (2004);

emphasis added.

The categories enumerated in 425.16(e) are not all-inclusive. Because the subsection is preceded by

the word "includes," other unmentioned acts are also protected under the statute.Averill v. Superior Court , 42

Cal.App.4th 1170, 1175 (1996). Such a threshold showing can be established in several circumstances,

including if the moving party demonstrates that it made the alleged statement in a place open to the public or

a public forum in connection with an issue of public interest. 425.16(e)(3).Seelig v. Infinity Broadcasting



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Corp., 97 Cal.App.4th 798, 807 (2002). Appellants submit that they clearly satisfied this burden, and in fact

exceeded it, where their alleged acts fit intoall four categories of 425.16(e).

The District Courts order contains no analysis or findings on the issue of whether that the alleged

acts underlying the Complaint fall into one or more of the categories set out in 425.16(e); there is merely a

conclusion that Defendants have failed to make a prima facie showing that the acts complained of fall into

any of those four categories of 425.16(e). [1 ER, 8.] No alleged acts set out in the Complaint are analyzed

with regard to the four categories. In reaching its unsupported conclusion, it is clear that the District Court

applied an impermissibly narrow standard as to Appellants exercise of their rights of petition and free speech

as well as the meaning of in furtherance of such rights and in connection with a public issue" in

contravention of the legislative directive that this section shall be construed broadly. Section 425.16(a).a. Appellants Right of Petition

The California Supreme Court has declared that [t]he constitutional right to petition includes the

basic act of filing litigation or otherwise seeking administrative action."Briggs v. Eden Council for Hope &

Opportunity , 19 Cal.4th 1106, 1115 (1999). Federal law is in accord. For example, inCalifornia

Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 510 (1972), the Supreme Court held: The right of

access to the courts is indeed but one aspectof the right of petition.

Section 425.16 (e) defines an act in furtherance of a persons right of petition to include: (1) any

written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other

official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an

issue under consideration or review by a legislative, executive, or judicial body, or any other official

proceeding authorized by law.... Communications made in preparation for or in anticipation of the bringing

of an action or other official proceeding fall within the ambit of these subdivisions.Action Apartment Assn.,

Inc. v. City of Santa Monica , 41 Cal.4th 1232, 1250-1251(2007).

It is axiomatic that the qualifications of a declared candidate for public office raise a public issue.



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McCoy v. Hearst Corp., 42 Cal.3d 835, 859 (1986). The core of the dispute herein involves the Birther

Movement challenging the qualifications of President Obama. Plaintiffs seek to silence Appellants

whistleblowing to the political dissident community and influence such movements primary tool to

advance its goals - litigation and other petitioning activity spearheading a nationwide debate on such public

issue. Appellants ha ve thus clearly demonstrated act[s] in furtherance of [their] right of petition under the

anti-SLAPP law.

b. Appellants Right of Free Speech

The United States Constitution, First Amendment provides: Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of

the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of grievances.

The constitutional protection for free speech does not turn upon "the truth, popularity, or social

utility of the ideas and beliefs which are offered."N.A.A.C.P. v. Button , 371 U.S. 415, 445 (1963). Under the

First Amendment, "[h]owever pernicious an opinion may seem, we depend for its correction not on the

conscience of judges and juries but on the competition of other ideas."Gertz v. Robert Welch, Inc., 418 U.S.

323, 339-340 (1974).

The central subject of Appellants free speech at issue involves the Birther Movement challenging

the qualifications of President Obama. Such protected speech as a matter of law concerns a public issue.

McCoy , supra , 42 Cal.3d at 859. Appellants free speech activities were without question entitled to

protection under 425.16.

The only logical explanation for why the District Court found to the contrary is that it dismissed

Appellants activities and speech, all in connection with leadership of the Birther Movement, as trivial,

pernicious .However, the Courts apparent view has no place in ruling upon Appellants motion. No matter

how provocative or unpopular Appellants political activities may be, they still, as a matter of law, are entitle



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to protection under the First Amendment including via an anti-SLAPP motion under 425.16.N.A.A.C.P.,

supra , 371 U.S. at 445.Gertz , supra , 418 U.S. at 339-340.

2. Appellantsalleged acts in furtherance of their rights of petition and free

speech in connection with public issues

a. Appellants allegedly made written or oral statement[s] or writing[s]made before a legislative, executive, or judicial proceeding, or any

other official proceeding authorized by law.... as required by section

425.16(e)(1)

Plaintiffs allege that Taitz wrote to the U.S. Supreme Court Justices seeking help in an investigation

regarding a criminal complaint she had filed with the Federal Bureau of Investigation regarding hacking into

her websites and tampering of her PayPal accounts... Taitz sent this same letter to the Secret Service and other

Governmental Law Enforcement Agencies. [1 ER, 262.] Taitz allegedly sought redress for Plaintiffs actions

from numerous government officials including Attorney General Eric Holder and Solicitor General Elena

Kagan.... [1 ER, 272.] Appellants also allegedly contacted Liberis probation officer in New Mexico, and the

San Bernardino County District Attorney, informing them of Liberis violation of the terms of her probation,

including that Liberi could not possess nor use any credit card without permission of the probation officer,

all for the purpose of seeking redress for Liberis violation of her probation in connection with Plaintiffs

interference with Appellants websites and diversion of donations. [1 ER, 268, and 275-279.]

Appellants alleged statements were unquestionably made before a legislative, executive, or judicial

proceeding, or any other off icial proceeding authorized by law.... as required by 425.16(e)(1) and thus per



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se protected activity under the anti-SLAPP statute.

Under the unambiguous language of 425.16(e), an action may be a SLAPP suit under subparts (1)

and (2) without any separate demonstration by defendant that its speech or petition concerned an issue of

public significance.Briggs, supra , 19 Cal.4th at 1113.Sipple v. Foundation for Nat. Progress , 71 Cal.App.4th

226, 236-237 (1999). The California Supreme Court inBriggs held:At least as to acts covered by clauses one and two of section 425.16,subdivision (e), the statute requires simply any writing or statement madein, or in connection with an issue under consideration or review by, thespecified proceeding or body. Thus these clauses safeguard free speech andpetition conduct aimed at advancing self government, as well as conductaimed at more mundane pursuits. Under the plain terms of the statute it isthe context or setting itself that makes the issue a public issue: all thatmatters is that the First Amendment activity take place in an officialproceeding or be made in connection with an issue being reviewed by anofficial proceeding.Briggs, supra , 19 Cal.4th at 1116; emphasis added.

By contrast, subparts (3) and (4) of 425.16(e) include an express limitation to "issue[s] of public

interest" but that limitation is not stated in subparts (1) and (2).Briggs, supra , 19 Cal.4th at 1117-1118.

Thus, the first two subparts of 425.16(e) require simply any writing or statement made in, or in

connection with, an issue under consideration or review by the specified proceeding or body.Kibler v. N. Inyo

County Local Hospital Dist., 39 Cal.4th 192, 196-198 (2006). Appellants burden under 425.16(e)(1) thus

didnot include to show their speech or petition activity concerned an issue of public significance.Briggs,

supra , 19 Cal.4th at 1113.Sipple , supra , 71 Cal.App.4th at 236-237.

Appellants were required to demonstrate statements made before a legislative, executive, or judicial

proceeding, or any other official proceeding authorized by law.... as required by 425.16(e)(1). Appellants

clearly met this burden. Thus, the District Courts conclusion that Appellants failed to make a prima facie

showing that the acts complained of fall into any of those four categories of 425.16(e) is clearly erroneous

under 425.16(e)(1). [1 ER, 8.]

b. Appellants allegedly made written or oral statement[s] or writing[s]

made in connection with an issue under consideration or review by a



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legislative, executive, or judicial body, or any other official proceeding

authorized by law....

as required by section 425.16(e)(2)

Appellants alleged statements qualify as statements made in connection with an issue under

consideration or review by a legislative, executive, or judicial body, or any other official proceeding

authorized by law....under 425.16(e)(2) for the same reasons, explained above, that they are protected

under 425.16(e)(1). For example, Plaintiffs allege that Taitz wrote to the U.S. Supreme Court Justices

seeking help in an investigation regarding a criminal complaint she had filed with the Federal Bureau of

Investigation regarding hacking into her websites and tampering of her PayPal accounts.... [1 ER, 262.] Such

complaint was thus made in connection with an issue under consideration or review by a... judicial body....as well as with regard to any other official proceeding authorized by law.... Similarly, Appellants alleged

contact with Liberis probation officer in New Mexico, and the San Bernardino County District Attorney,

informing them of Liberis violation of the terms of her probation, was made in connection with an issue

under consideration or review by a... judicial body as well as any other official proceeding authorized by

law....

[1 ER, 268, and 275-279.]

The requirements of 425.16(e)(2) are construed broadly, and even cover an official proceeding

authorized by law before a non-governmental entity.Kibler , supra , 39 Cal.4th at 198. Here, Appellants

alleged acts were in several official proceeding[s] authorized by law before multiple governmental entities.

Appellants alleged statements were thus per se protected activity under 425.16(e)(2). Appellants

burden under 425.16(e)(2) did not include to show their speech or petition activity concerned an issue of

public significance.Briggs, supra , 19 Cal.4th at 1113.Sipple , supra , 71 Cal.App.4th at 236-237. Appellants met

their burden under 425.16(e)(2). Thus, the District Courts conclusion that Appellants failed to make a



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prima facie showing that the acts complained of fall into any of those four categories of 425.16(e) is clearly

erroneous under 425.16(e)(2). [1 ER, 8.]

c. Appellants allegedly made written or oral statement[s] or writing[s]

made in a place open to the public or a public forum in connection

with an issue of public interest.... as required by section 425.16(e)(3)

Plaintiffs allege that Taitz engaged in whistleblowing via publishing statements on various websites

and internet blogs reportingthat Plaintiffs interfered with Appellants websites and internet blogs, created

misleading websites and diverted donations from DOFF to entities controlled by Plaintiffs. [1 ER, 264.]

Plaintiffs also allege that Taitz published statements were copied by various websites and blogs

regarding the criminal record of Liberi. [1 ER, 268.] As a matter of law, such alleged activities constitutedwritten... statement[s] or writing[s] made in a

place open to the public or a public forum in connection with an issue of public interest.... under

425.16(e)(3).

Web sites where members of the public may read the views and information posted, and post their

own opinions, as a matter of law are a public forum for purposes of 425.16(e)(3).Ampex Corp. v. Cargle ,

128 Cal.App.4th 1569 (2005). The Court of Appeal held:When [Defendant] decided in August 2001 to join the conversation aboutthe fortunes of Ampex, he did so by posting messages on the Yahoo!message board for Ampex. The question here is whether such postings weremade in a public forum, traditionally defined as a place that is open to thepublic where information is freely exchanged. (ComputerXpress, Inc. v.Jackson, supra, 93 Cal.App.4th at p. 1006.)The term public forum includesforms of public communication other than those occurring in a physicalsetting. Thus the electronic communication media may constitute publicforums. Web sites that are accessible free of charge to any member of thepublic where members of the public may read the views and information

posted, and post their own opinions, meet the definition of a public forumfor purposes of section 425.16. (ComputerXpress, Inc. v. Jackson, supra, atp. 1007.) Thus the Yahoo! message board maintained for Ampex was apublic forum.Id.at 1576; emphasis added.

Ninth Circuit cases interpret public forum under 425.16(e)(3) to include websites. (See,Troy



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Group, Inc. v. Tilson , 364 F.Supp.2d 1149, 1153 (2005).) Thus, Appellants met their burden under

425.16(e)(3) on its public forum component.

Appellants alleged statements were made in connection with an issue of public interest.... as

required by 425.16(e)(3). This language is interpreted broadly.Annette F., supra , 119 Cal.App.4th at 1160.

Under California law, to constitute or concern a public issue, the involved conduct must either impact a broad

segment of society or affect a community in a manner similar to that of a governmental entity.Damon , supra ,

85 Cal.App.4th at 479. Appellants alleged statements, all made in furtherance of the political dissident

movement and its Birther component, certainly impact a broad segment of society by stirring important

public debate regarding the qualifications of highest political leaders to hold office as well as generate

considerable media coverage. This broad segment includes, but is not limited to, thousands of adherents of the Birther Movement, as well as millions who follow media coverage of such political debate.

The Court of Appeal inRivero v. AFL-CIO , 105 Cal.App.4th 913, 923 (2003) surveyed cases

interpreting the meaning public interest under the anti-SLAPP statute and held that covers a broad range of

protected conduct:None of these cases defines the precise boundaries of a public issue, but ineach of these cases, the subject statements either concerned a person orentity in the public eye (see Sipple, supra, 71 Cal.App.4th at p. 239["nationally known figure"]; Church of Scientology, supra, 42 Cal.App.4th atp. 651 [extensive "media coverage"]; Seelig, supra, 97 Cal.App.4th at pp.807-808 [discussion of participant in "a television show of significantinterest to the public and the media"]), conduct that could directly affect alarge number of people beyond the direct participants (Damon, supra, 85Cal.App.4th 468; Ludwig, supra, 37 Cal.App.4th 8; Dowling, supra, 85Cal.App.4th 1400; Church of Scientology, supra, 42 Cal.App.4th at pp.650-651) or a topic of widespread, public interest (see M.G., supra, 89Cal.App.4th at p. 629).Rivero , supra , 105 Cal.App.4th at 924.

Appellants clearly engaged in protected conduct in connection with an issue of public interest.... as

required by 425.16(e)(3). Taitz as well as Berg are nationally known figure[s] as discussed inSipple, supra ,

71 Cal.App.4th at 239. The political issues in discussion, most notably the goals of the Birther Movement,

generate extensive media coverage as discussed inChurch of Scientology v. Wollersheim , 42 Cal.App.4th

628, 651 (1996), disapproved on other grounds inEquilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53,



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(2002). Such movement, and the underlying controversy arising out of Plaintiffs attempts to silence

Appellants political speech, inherently concern a topic of widespread,

public interest as discussed inM.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 629 (2001).

Moreover, Appellants speech at issue qualifies for the highest protections of the First Amendment.

The right to speak on political matters is the quintessential subject of the constitutional protections of the

right of free speech, and public discussion about the qualifications of those who hold or who wish to hold

positions of public trust presents the strongest possible case for applications of the safeguards afforded by the

First Amendment.Matson, supra , 40 Cal.App.4th at 548. "Public discussion about the qualifications of those

who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment." ' [Citations.]"Damon, supra , 85 Cal.App.4th at 479.

At its heart, this case concerns the activities of the political dissident movement including the Birther

Movement,involving public discussions challenging the qualifications of President Obama to hold the

highest office in the United States. This case directly implicates control over that movement, particularly as to

crucial fundraising activities, including over its primary method to achieve its goals, litigation challenging

President Obamas qualifications. It presents the strongest possible set of facts squarely presenting free

speech and petition activity protected per se under 425.16(e)(3). Thus, the District Courts conclusion that

Appellants failed to make a prima facie showing that the acts complained of fall into any of those four

categories of 425.16(e) is clearly erroneous under 425.16(e)(3). [1 ER, 8.]

d. Appellants allegedly engaged in any other conduct in furtherance of

the exercise of the constitutional right of petition or the constitutional

right of free speech in connection with a public issue or an issue of



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demonstrate the legal sufficiency of their Complaint where they made a judicial

admission that the Complaint was legally insufficient

1. Plaintiffs admitted that their Complaint was legally insufficient and, thus, as a

matter of law, did not meet their burden under section 425.16(b)(1)

Review of the issues discussed in this Section III are governed by thede novo standard.Thomas ,

supra , 126 Cal.App.4th at 624-625. Tuchscher , supra , 106 Cal.App.4th at 1232.

A plaintiffs burden under the second prong of 425.16(b)(1) is two-fold: "[T]he plaintiff 'must

demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing

of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'"Matson, supra ,

40 Cal.App.4th at 548; emphasis added.Rosenaur , supra , 88 Cal.App.4th at 274.As a matter of law, it is insufficient for a plaintiff to merely argue that it has made an evidentiary

showing of merit in opposition to an anti-SLAPP motion. [T]he plaintiff must demonstrate that the

complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a

favorable judgment if the evidence submitted by the plaintiff is credited.Taus v. Loftus , 40 Cal.4th 683,

713-714 (2007).

Plaintiffs admitted that they did not satisfy this first requirement of their burden:The second prong is whether the Plaintiffs have demonstrated a probabilityof prevailing on the claim. Plaintiffsagree they must amend theirComplaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8; emphasis added.]

Under Ninth Circuit law, "[j]udicial admissions are formal admissions in the pleadings which have

the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact."

American Title Ins. Co. v. Lovelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).

Plaintiffs judicial admission in their opposition that they did not satisfy their burden under

425.16(b)(1) to demonstrate the legal sufficiency of their Complaint required, as a matter of law, that the anti-

SLAPP motion be granted.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.



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Taus , supra , 40 Cal.4th at 713-714. The District Court ignored this essential component of Plaintiff s burden;

the Court held Plaintiffs have sufficiently made a prima facie showing of facts that would, if proved, support

a judgment in their favor. [ER, 8.] This holding expresses a logical impossibility; without possessing a legall

sufficient Complaint, Plaintiffs could not make a prima facie showing of facts [to]... support a judgment in

their favor.

In the parlance of the anti-SLAPP law, and its two-pronged test for an opposing partys burden under

425.16(b)(1), Plaintiffs had to first demonstrate that the complaint is... legally sufficient before the Court

could reach the issue of whether Plaintiffs made a prima facie showing of facts to sustain a favorable

judgment....Taus , supra , 40 Cal.4th at 713-714.

The District Court impermissible bypassed the first prong of this test, and focused exclusively (and

improperly) only on the second prong. [1 ER, 8.]

By analogy, the Courts disregard of Plaintiffs burdenunder the first prong of this test, after they

made a judicial admission of the insufficiency of the Complaint, is similar to a Court considering the merits o

a complaint in the face of a plaintiffs admission that its complaint is barred by a statute of limitations. Once

such a dispositive judicial admission is made, no further inquiry is necessary or allowed.

Neither the anti-SLAPP statute nor case law decided under it permit a Court to bypass a plaintiffs

burden under the first prong of this test. The Court failed to consider the legal sufficiency of the Complaint,

admitted by Plaintiffs to be insufficient, and thus as a matter of law committed reversible error.

2. Plaintiffs failed to meet their burden to demonstrate that their Complaint and

each of its claims were legally sufficient under section 425.16(b)(1)

a. Plaintiffs Count One, for Violation of the First and Fourteenth

Amendment [sic] of the United States Constituion [sic], is legally

insufficient



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Plaintiffs' first claim has no legal basis. [2 ER, 311-316.] The Fourteenth Amendment cannot apply to

private conduct.Shelley, supra , 334 U.S. at 13. The First Amendment does not apply to private conduct

either.Rendell-Baker, supra , 457 U.S. at 837. Where Plaintiffs allege only private conduct, and not required

governmental invasion of privacy, their first claim as a matter of law must fail.

Plaintiffsfirst claim is also based on a jumbled smorgasbord of various California, Pennsylvania and

federal statutes. [2 ER, 314-315.] None of these laws support Plaintiffs claim. For example, CaliforniaCivil

Code section 1798 et seq. (California's Information Practices Act of 1977) requires government agencies to

protect the privacy of personal information maintained by state agencies. See,Civil Code 1798.3(a)

and1798.45, andMeister v. Regents of University of California , 67 Cal.App.4th 437, 446 (1998). Plaintiffs

cannot state a claim against Appellants under California's Information Practices Act of 1977 where they arenot a governmental "agency" as defined under such Act. Moreover, Plaintiffs agree they must amend their

Complaint to bring it in compliance with the California Laws. [1 ER, 125: 5-8.] Thus, per Plaintiffs, their

Complaint states no sufficient claim under California law.

Appellants are not subject to the Pennsylvania Privacy Acts cited in the Complaint where they are

not residents or citizens of the State of Pennsylvania, but instead residents and citizens of the State of

California. [1 ER, 256.]

None of the federal statutes cited in the first claim support the claim. For example, 18 U.S.C. 2510

22 are criminal law statutes not providing for civil remedies.

b. Plaintiffs Count Two, for DefamationPer Se , Slander and Libel, is

legally insufficient

Plaintiffs common law claims are based on California law, given that the case is pending in Californi

and Appellants are alleged to be, and are, residents and citizens of California.Erie Railroad Co. v. Tompkins ,

304 U.S. 64, 78 (1938).

Thus, Plaintiffs common law claims for defamation per se, slander and libel are based on California law. [2

ER, 317-320.] Again, Plaintiffs agree they must amend their Complaint to bring it in compliance with the



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California Laws. [1 ER, 125: 5-8.] Thus, per Plaintiffs, their second claim fails to state a sufficient claim under

California law.

The insufficiency of Plaintiffs second claim is demonstrated in detail in Appellants anti-SLAPP

motion and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is

binding. American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in

establishing their failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of

their second claim.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.

c. Plaintiffs Count Three, for False-Light Invasion of Privacy, is

legally insufficient Plaintiffs third claim is based on California law. [2 ER, 320-323.]Erie Railroad Co., supra , 304 U.S. at

78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the California

Laws, their third claim fails to state a sufficient claim under California law.

The insufficiency of Plaintiffs third claim is demonstrated in detail in Appellants anti-SLAPP motion

and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding.

American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their

failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their third claim.

Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.

d. Plaintiffs Count Four, for Harassment, is legally insufficient as

well as not being a legally-cognizable claim

Plaintiffs fourth claim is for harassment. [2 ER, 323-326.] There is no legally-cognizable claim for

relief for damages entitled harassment. If and to the extent there is such a legally-cognizable claim (limited

to injunctive relief), it would be based on California law. CaliforniaCode of Civil Procedure section 527.6.Erie

Railroad Co., supra , 304 U.S. at 78. Plaintiffs seek damages on this claim. [2 ER, 324.] Where Plaintiffs agree

they must amend their Complaint to bring it in compliance with the California Laws, their fourth claim fails



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to state a sufficient claim under California law.

The insufficiency of Plaintiffs fourth claim is demonstrated in detail in Appellants anti-SLAPP motion

and supporting papers. However, Plaintiffs judicial admission that such claim is insufficient is binding.

American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission isdispositive in establishing their

failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their fourth claim.


e. Plaintiffs Count Five, for False Designations and Descriptions of

Facts, is legally insufficient

Plaintiffs fifth claim is for false designations and descriptions of facts. [2 ER, 326-329.] Plaintiffs

cite to 15 U.S.C. 1125 as supporting this claim. [2 ER, 327.] This section is part of the United StatesTrademark Act. Section 1125(a)(1) refers to:

Any person who, on or in connection with any goods or services, or anycontainer for goods, uses in commerce any word, term, name, symbol, ordevice, or any combination thereof, or any false designation of origin, falseor misleading description of fact, or false or misleading representation of fact....

Plaintiffs fail to allege any facts in this claim that Appellants used in commerce any word.... as

required by 1125(a)(1). Moreover, to come within 43(a) of the Lanham Act (15 U.S.C. 1125(a)), covere

activities must relate to goods or services which have some effect on interstate or foreign commerce

within control of Congress.Parkway Baking Co. v Freihofer Baking Co., 255 F.2d 641 (3rd Circ. 1958).

Cashmere & Camel Hair Mfrs. Inst. v Saks Fifth Ave ., 284 F.3d 302 (1st Circ. 2002). Plaintiffs in their fifth claim

fail to allege this essential element of provision of goods or services in interstate commerce, or any effect on

interstate commerce.

Congress' purpose in enacting 43(a) of the Lanham Act was to create a special and limited unfair

competition remedy exclusively to protect the interests of a purely commercial class against unscrupulous

commercial conduct.Colligan v Activities Club of New York, Ltd., 442 F.2d 686 (2nd Circ. 1971). Plaintiffs fail



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to allege any facts establishing the essential element of unfair competition as between them and Appellants,

nor that Appellants engaged in any unscrupulous commercial conduct.

Thus, Plaintiffs failed to satisfy their burden under 425.16(b)(1) to demonstrate the legal

sufficiency of their fifth claim.Matson, supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.

e. Plaintiffs Count Six, for Injunctive Relief , is legally insufficient

and is not a separate claim for relief

Plaintiffs sixth claim is for injunctive relief. [2 ER, 329-332.] This is not a separate claim for relief; it

is merely a type of remedy dependent upon the existence of a separate, supporting claim for relief.City of

South Pasadena v. Department of Transportation , 29 Cal.App.4th 1280, 1293 (1994). As discussed herein,

and demonstrated in Appellants anti-SLAPP motion and supporting papers, Plaintiffs failed to state anysufficient claim upon which their sixth claim could be based.

Further, it appears that Plaintiffssixth claim is based on California law.Erie Railroad Co., supra , 304

U.S. at 78. Where Plaintiffs agree they must amend their Complaint to bring it in compliance with the

California Laws,their sixth claim fails to state a sufficient claim under California law.

The insufficiency of Plaintiffs sixth claim is demonstrated in detail in Appellants anti-SLAPP motion

and supporting papers. However, Plaintiffsjudicial admission that such claim is insufficient is binding.

American Title Ins. Co., supra , 861 F.2d at 226. Plaintiffs judicial admission is dispositive in establishing their

failure to satisfy their burden under 425.16(b)(1) to demonstrate the legal sufficiency of their sixth claim.


B. Plaintiffs did not meet their burden under section 425.16(b)(1) to present competent

and admissible evidence sufficient to sustain a judgment in their favor on the

Complaint

Appelantz submits the following argument without waiving, and with a full reservation of, her above

argument that Plaintiffs failed to satisfy their burden under 425.16(b)(1) where they admitted that the



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Complaint was legally insufficient. A plaintiffs burden under 425.16(b)(1) includes to make a prima facie

showing via competent and admissible evidence of facts sufficient to sustain a favorable judgment.Matson,

supra , 40 Cal.App.4th at 548.Rosenaur , supra , 88 Cal.App.4th at 274.

Plaintiffs did not satisfy that burden where they failed to submit competent or admissible evidence

supporting their opposition. Plaintiffs Liberi and Berg submitteddeclarations with Plaintiffs opposition. [1 ER,

142-154.] Appellants submitted memoranda of evidentiary objections to such declarations. [1 ER, 47-56.]

The District Court failed to rule on such objections, instead stating that the Court has reviewed theobjections

filed here and relies only on admissible evidence. [1 ER, 6.] The Court thus tacitly overruled Appellants

objections.

Rule 103 of the Fed. R. Evid provides in relevant part:(a) Preserving a Claim of Error. A party may claim error in a ruling to admitor exclude evidence only if the error affects a substantial right of the partyand:(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and(B) states the specific ground, unless it was apparent from thecontext; or

(2) if the ruling excludes evidence, a party informs the court of itssubstance by an offer of proof, unless the substance was apparent fromthe context.

Here, Appellants filed timely evidentiary objections to the declarations of Liberi and Berg. The Distric

Court tacitly overruled the objections. Such error affects a substantial right of Appellants where

liberi v doff (appeal - 9th circuit) appellant's (taitz) opening brief - transportroom.10.0

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