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Philip J. Berg, EsquirePennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134E-mail:[email protected] Attorney in pro se and for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA,
SOUTHERN DIVISION
LISA LIBERI, et al,
Plaintiffs,
vs.
ORLY TAITZ, et al,
Defendants.
:::::::::::::
:::
CIVIL ACTION NUMBER:
8:11-cv-00485-AG (AJW)
PLAINTIFFS REPLY TO
DEFENDANTS ORLY TAITZ and
ORLY TAITZ, ESQ. OPPOSITION
TO PLAINTIFFS MOTION FOR
LEAVE TO FILE A FIRST
AMENDED COMPLAINT
Date of Hearing: June 13, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D
PLANITIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN
REPLY TO DEFENDANT ORLY TAITZ and ORLY TAITZ, ESQUIRE
OPPOSITION TO PLAINTIFFS MOTION
COMES NOW Plaintiffs, Philip J. Berg, Esquire [hereinafter at times
Berg]; Lisa Ostella [hereinafter at times Ostella]; Go Excel Global; Lisa Liber
[hereinafter at times Liberi]; and The Law Offices of Philip J. Berg and files the
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within Memorandum Of Points and Authorities in Reply to Defendants Orly Taitz
and Orly Taitz, Esq. [hereinafter Defendant] Opposition to Plaintiffs Motion
Seeking Leave to File a First Amended Complaint; and for an Order that Leave
must be Granted by the Court prior to the filing of any Motions. In support hereof
Plaintiffs aver the following:
1. Defendant in their Opposition states Plaintiffs filing of their
Supplemental with their First Amended Complaint attached is deficient
Defendant claims Plaintiffs Motion for Leave to Amend their Complaint is
deficient. Defendant then cites CACD L.R. 15-1, which states, Any proposed
amended pleading must be electronically filed as a document separate from a
related motion or stipulation. [Def. Opp, p. 2, 2, ll. 20-23]. As can be seen by
the Courts Docket, Plaintiffs filed their Amended Complaint separate from their
Motion and Brief as required by this Rule.
2. Defendant next states Plaintiffs Motion is deficient because CACD
L.R. 15-3 provides, An amended pleading allowed by order of the Court shall be
deemed served upon the parties who have previously appeared on the date the
motion to amend is granted or the stipulation therefor is approved [Def. Opp, p
2, 2, ll. 24-26] Plaintiffs Motion is set to be heard on June 13, 2011 at 10:00 a.m
Therefore, Plaintiffs are at a loss as to why Defendants cited this Local Rule.
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3. Defendant next contends the amended pleading is required to be filed
prior to the hearing on the motion, Local Rule 7-5 requires that the proposed
amended pleading be filed concurrently with the notice of motion. CACD LR 7-5
provides: There shall be served and filed with the notice of motion: (a) brie
complete memorandum in support thereof and the points and authorities upon
which the moving party will rely; and (b) The evidence upon which the moving
party will reply in support of motion. [Def. Opp, p. 1, 2, ll. 27-28 and p. 2, ll. 1-
4]. Plaintiffs filed a Memorandum of Points and Authorities (Brief) in Support of
their Motion and evidence in which they relied. Plaintiffs filed their Amended
Complaint prior to the hearing and Plaintiffs were not supposed to file their First
Amended Complaint with the Notice of Motion as claimed by Defendant as this
would notbe compliant with this Courts L.R. 15-1.
4. Defendant states CACD LR 7-12 provides, The Court may decline
to consider any memorandum or other paper not filed within the deadline set by
order or local rule. The failure to file any required paper, or the failure to file i
within the deadline, may be deemed consent to granting or denial of motion.
Plaintiffs filed the Proposed First Amended Complaint as an attachmenton May
20, 2011, just one [1] business day before the instant opposition is due. This
Courts Local Rule 7-12 pertains to Motions, Oppositions and Replies. Plaintiffs
First Amended Complaint could notbe filed with Plaintiffs Motion Seeking Leave
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as that would violate this Courts Local Rule 15-1. Further, before filing the
Amended Complaint, Plaintiffs were waiting for confirmations from their Experts
regarding the allegations plead against the Reed Defendants, Intelius, Inc.
Daylight Chemical, Oracle and Yosef Taitz. Once verification of the language
used and the reasons giving rise to the Amended Complaint were confirmed,
Plaintiffs immediately filed their First Amended Complaint. Further, Plaintiffs
also requested Leave to File their First Amended Complaint in their Opposition to
Defendant Taitzs Anti-SLAPP and Motion to Dismiss. See Docket No. 186 filed
May 5, 2011, p. 4, 6, ll. 4-5; p. 12, 23, ll. 1-4; p. 22, 40, ll. 11-14; and p. 24
46, ll. 20-25, which Defendant failed to cite and/or refer to.
5. If Defendants felt they needed additional time to review Plaintiffs
First Amended Complaint, in order to respond to Plaintiffs Motion for Leave to
Amend, they could have simply requested Plaintiffs to agree to an extension of
time, which they failed to do. Once Plaintiffs are granted Leave to Amend and
their Amended Complaint is officially filed, Defendants will have the appropriate
time to Answer the Amended Complaint and/or file a Motion to Dismiss. Thus
there is no prejudice. This Court has the inherent power to consider and gran
Leave for the filing of Plaintiffs First Amended Complaint. See Yusov v. Yusuf
892 F.2d 784, 787 (9th Cir. 1989).
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6. Defendant claims Plaintiffs Amended Complaint is futile, which is
completely untrue as demonstrated by their First Amended Complaint.
7. Defendants through their Opposition claim Plaintiffs Amended
Complaint should notbe allowed without knowing who the additional parties are
Plaintiffs have filed their First Amended Complaint with the new parties entered,
thus the Court is aware of the new Defendants as are the Defendants.
8. Defendant next claims there are no new claims asserted by Plaintiffs
Defendant claims in essence that the malicious prosecution claim is somehow the
same as Plaintiffs Defamation, Libel, and Slander Cause of Action; this is
complete nonsense. Defendant also asserts that Plaintiffs Complaint, as plead for
Pennsylvania, covers these issues and any amendment is futile, which is ridiculous
[Def. Opp. P. 4, 5, ll. 15-24]. Defendant Taitz as an Attorney and an Officer of
the Court through her law practice filed papers in the San Bernardino County
Superior Court in April 2011 attempting to have Plaintiff Lisa Liberi falsely
imprisoned based on unsubstantiated assertions that Liberi somehow violated her
terms and conditions of probation. Three [3] Court Hearings took place which
required appearances and counsel. Plaintiff Liberi was cleared of all falsified
allegations asserted by Defendants Neil Sankey and Orly Taitz, Esquire. This is
far and beyond Defamation, Libel and Slander. The laws of California and
Pennsylvania differ drastically. Further, there are additional Defendants Plaintiffs
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must add as DOE Defendants based on newly discovered evidence. Even after
suit was filed in Pennsylvania pursuant to the Pennsylvania laws, Defendant Orly
Taitz continued her illegal tactics which gave rise to the within lawsuit. Defendant
is trying to deprive Plaintiffs of their right to redress and their ability to recoup
damages caused by the illegal behaviors of Defendant Orly Taitz.
9. Defendant is asking for this Court to deny giving Leave to Plaintiffs to
File their First Amended Complaint. Defendant fails to cite to any prejudice, as
there isnt any prejudice to the Defendant; they cant cite bad faith as Plaintiffs
filed in good-faith; or undue delay as the Case was just recently transferred to this
district. Plaintiffs have not previously amended their complaint. If Plaintiffs ar
denied, they will be severely prejudiced as they will be foreclosed from redress and
recouping their damages suffered as a result of the Defendants actions.
10. As this Court is aware, this case was originally filed May 4, 2009 in
Pennsylvania. The Court Ordered the case Transferred which Defendant appealed
the Courts transfer Order, which was not an appealable Order, holding up the
transfer for over nine [9] months. Defendants Appeal was Dismissed as the Court
lacked jurisdiction. There has been no question that Plaintiffs need to amend their
complaint to bring it in compliance with California laws; to add as DOE
Defendants parties recently discovered; and to add the new causes of actions.
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11. As stated in Plaintiffs Motion, the United States Supreme Court, the
Ninth Circuit, and this Court have repeatedly reaffirmed that Leave to Amend is to
be Granted with "extreme liberality."DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 186 (9th Cir. 1987) (citation omitted); See, e.g., Foman v. Davis, 371 U.S
178, 182, 83 S. Ct. 227, 230 (1962) (leave to amend should be freely given)
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)
(Absent prejudice, or a strong showing of any of the remaining Foman factors
there exists apresumption under Rule 15(a) in favor of granting leave to amend.)
(emphasis in original); United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)
(courts should be guided by policy favoring decisions on the merits "rather than on
the pleadings or technicalities"); See also Moore, 3-15 Moore's Federal Practice -
Civil 15.14 ("A liberal, pro-amendment ethos dominates the intent and judicia
construction of Rule 15(a)."). The primary factors relied upon by the Supreme
Court and the Ninth Circuit in denying a motion for leave to amend are "bad faith
undue delay, prejudice to the opposing party, and futility of amendment." DCD
Programs, 833 F.2d at 186. None of these apply.
12. Although the undersigned was served by the ECF systems with Mr
Marasigan, counsel for Defendant Orly Taitz, Esquires filings, Mr. Marasigan
failed to notice the undersigned on his Certificate of Service.
//
//
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Philip J. Berg, EsquirePennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134E-mail:[email protected]
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA,
SOUTHERN DIVISION
LISA LIBERI, et al,
Plaintiffs,
vs.
ORLY TAITZ, et al,
Defendants.
::::
:::::::::
CIVIL ACTION NUMBER:
8:11-cv-00485-AG (AJW)
PLAINTIFFS CERTIFICATE OF
SERVICE
I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs
Reply to Defendants Orly Taitz and Orly Taitz, Esquire Opposition to Plaintiffs
Motion for Leave to Amend their Complaint was served through the ECF filing
system and/or mail as indicated below, this 24th day of May 2011 upon the
following:
Jayson Q. Marasigan
Dack Marasigan, LLP23041 Avenida de la Carlota, Suite 300
Laguna Hills, CA 92653
Email: [email protected]
Served through the Courts ECF Filing System
Attorney for Defendants Orly Taitz and Orly Taitz, Esquire
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