liberi v taitz (c.d. ca) - 280.0 - notice of motion and motion to dismiss case pursuant to frcp...

8/6/2019 LIBERI v TAITZ (C.D. CA) - 280.0 - NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to FRCP 12(b)(6) file

1/33

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

-i-

DEFENDANT ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Kim Schumann, Esq., State Bar #170942Jeffrey P. Cunningham, Esq., State Bar #151067Peter Cook, Esq., State Bar #232742SCHUMANN, RALLO & ROSENBERG, LLP3100 Bristol Street, Suite 400Costa Mesa, CA 92626

Telephone (714) 850-0210Facsimile (714) 850-0551Email: [email protected]

Attorneys for Defendant, ORLY TAITZ

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

LISA LIBERI and PHILIP J. BERG,ESQUIRE and THE LAW OFFICES OFPHILIP J. BERG and EVELYN ADAMSa/k/a MOMMA E and LISA M.OSTELLA and GO EXCEL GLOBAL,

Plaintiffs,

vs.

ORLY TAITZ, a/k/a DR. ORLY TAITZ,a/k/a LAW OFFICES OF ORLY TAITZ;a/k/a WWW.ORLYTAITZESQ.COMa/k/a WWW.REPUBX.COM a/k/aORLY TAITZ, INC. and DEFEND OURFREEDOMS FOUNDATIONS, INC.and YOSEF TAITZ and THE SANKEYFIRM and SANKEY INVESTIGA-TIONS, INC. and NEIL SANKEY andJAMES SUNQUIST and ROCK SALTPUBLISHING and LINDA SUEBELCHER a/k/a LINDA S. BELCHERa/k/a LINDA STARR; a/k/aNEWWOMENSPARTY a/k/a

STITCHENWITCH a/k/a EVA BRAUNa/k/a WEB SERGEANT a/k/a KATYa/k/a WWW.OBAMACITIZENSHIPDEBATE.ORG and EDGAR HALEa/k/a JD SMITH; and CAREN HALE;and PLAINS RADIO NETWORK, a/k/aPLAINS RADIO NETWORK, INC.a/k/a PLAINS RADIO; and BAR HFARMS; and KPRN AM 1610; andDOES 1 through 200 Inclusive,

Defendants.

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

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

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

Case No. 8:11-CV-00485-AG (AJW)Hon. Andrew GuilfordCourtroom 10D

DEFENDANT ORLY TAITZSMOTION TO DISMISSPLAINTIFFS FIRST AMENDEDCOMPLAINT PURSUANT TO FRCP12(b)(6)

Date Action Filed: May 4, 2009Discovery Cut-Off: March 5, 2012Final Pre-Trial Conf.: May 21, 2012Trial Date: June 5, 2012

Case 8:11-cv-00485-AG -AJW Document 280 Filed 07/11/11 Page 1 of 33 Page ID#:6765


2/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-ii-


TO THE COURT, ALL PARTIES, AND/OR THEIR ATTORNEYS OF

RECORD:

COMES NOW, Defendant, ORLY TAITZ, and hereby submits this Motion

for Dismissal pursuant to Federal Rules of Civil Procedures [FRCP], Rule12(b)(6), against Plaintiffs, LISA LIBERI, PHILIP J. BERG, ESQUIRE, THE LAW

OFFICES OF PHILIP J. BERG and LISA M. OSTELLA , [hereinafter referred to

collectively as Plaintiffs] as the Plaintiffs have failed to state a claim on the

following issues:

(1) Plaintiffs fail to state a claim for the FIRST CAUSE OF ACTION for

INVASION OF PRIVACY UNDER THE FIRST AND

FOURTEENTH AMENDMENTS AND THE CALIFORNIA

CONSTITUTION;

(2) Plaintiffs fail to state a claim for the SECOND CAUSE OF ACTION

for PUBLIC DISCLOSURE OF PRIVATE FACTS;

(3) Plaintiffs fail to state a claim for the THIRD CAUSE OF ACTION for

FALSE LIGHT;

(4) Plaintiffs fail to state a claim for the FOURTH CAUSE OF ACTION

for APPROPRIATION OF NAME, PHOTO AND LIKENESS;

(5) Plaintiffs fail to state a claim for the FIFTH CAUSE OF ACTION for

VIOLATION OF CAL. CIV. CODE 1798.53;

(6) Plaintiffs fail to state a claim for the SIXTH CAUSE OF ACTION for

VIOLATION OF CAL. CIV. CODE 1798.85;

(7) Plaintiffs fail to state a claim for the SEVENTH CAUSE OF ACTIONfor CYBER-STALKING, CYBER-HARASSMENT AND CYBER-

BULLYING;

(8) Plaintiffs fail to state a claim for the EIGHTH CAUSE OF ACTION

for DEFAMATION PER SE, SLANDER AND LIBEL PER SE;

///



3/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-iii-


(9) Plaintiffs fail to state a claim for the NINTH CAUSE OF ACTION for

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;

(10) Plaintiffs fail to state a claim for the TENTH CAUSE OF ACTION for

MALICIOUS PROSECUTION; and(11) Plaintiffs fail to state a claim for the ELEVENTH CAUSE OF

ACTION for ABUSE OF PROCESS.

In conformance with the Courts order dated June 14, 2011, on June 27,

2011, counsel for TAITZ requested leave to file a motion to dismiss based upon

FRCP 12(b)(6). On June 29, 2011, the Court granted TAITZs request for leave to

file a motion to dismiss based upon Rule 12(b)(6).

This Motion to Dismiss pursuant to FRCP, Rule 12(b)(6) will be based upon

this Notice, the attached Memorandum of Points and Authorities in support thereof,

the Court file concerning this matter, and all other tangible and/or testimonial

evidence provided at the hearing on this matter.

The hearing on this motion will take place on August 15, 2011 at 10:00 AM,

or as soon thereafter as before the Honorable Andrew Guilford of the United States

District Court for the Central District of California, Southern Division, in

Courtroom 10D at the Spring Street Courthouse located 411 West Fourth Street,

Santa Ana, California 92701.

DATED: July 11, 2011 SCHUMANN, RALLO & ROSENBERG, LLP

/s/ - Peter CookBy: ___________________________Kim Schumann, Esq.Peter Cook Esq.Attorneys for Defendant,ORLY TAITZ



4/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-iv-


Table of Contents

MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . 1

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . .

4III. LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. PLAINTIFFS FIRST CAUSE OF ACTION FAILS AS

THERE IS NO PERSONAL RIGHT OF ACTION UNDER

THE FIRST AND FOURTEENTH AMENDMENTS, AND

FURTHER, PLAINTIFFS HAVE FAILED TO

ADEQUATELY SPECIFY WHAT, IF ANY,

REASONABLE EXPECTATION OF PRIVACY HAS

BEEN INVADED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The U.S. Constitution Does Not Recognize the Right to

Sue a Private Individual under the First or Fourteenth

Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. Plaintiff BERG, a Nationally Prolific Attorney Seeking

Pro Hac Vice Status, Has No Reasonable Expectation of

Privacy as to His Disciplinary Record . . . . . . . . . . . . 5

3. Plaintiff OSTELLA Fails to Provide Allegations That

TAITZ Intruded on Her Reasonable Expectation of

Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4. Plaintiff LIBERI Fails to Assert any Reasonable

Expectation of Privacy Regarding Several of HerAlleged Privacy Issues . . . . . . . . . . . . . . . . . . . . . . . 7

B. PLAINTIFFS SECOND CAUSE OF ACTION FAILS AS

PLAINTIFFS HAVE FAILED TO ADEQUATELY

SPECIFY WHAT, IF ANY, PRIVATE FACTS HAVE

BEEN PUBLICIZED, AND HAVE FAILED TO



5/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-v-


ADEQUATELY ALLEGE THAT THEY ARE NOT

NEWSWORTHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. PLAINTIFFS SUPERFLUOUS THIRD CAUSE OF

ACTION FOR FALSE LIGHT FAILS AS PLAINTIFFSHAVE FAILED TO ALLEGE THAT TAITZ ACTUALLY

PUBLICIZED ANY FACTS LEADING TO THE

ALLEGED PORTRAYALS IN A FALSE LIGHT . . . . . . 10

D. PLAINTIFFS FOURTH CAUSE OF ACTION FAILS AS

PLAINTIFFS DO NOT PROPERLY ALLEGE HOW

PRESENTATION OF FACTUAL NEWS-RELATED

INFORMATION REGARDING PLAINTIFFS IS A

MISAPPROPRIATION OF THEIR LIKENESS . . . . . . . 12

E. PLAINTIFFS FIFTH CAUSE OF ACTION FOR

VIOLATION OF CAL. CIV. CODE 1798.53 FAILS IN

THAT THE FAC DOES NOT PROVIDE ANY

ALLEGATIONS THAT THE ALLEGED DISCLOSED

INFORMATION WAS OBTAINED FROM A

GOVERNMENT AGENCY . . . . . . . . . . . . . . . . . . . . . . 13

F. PLAINTIFFS SIXTH CAUSE OF ACTION FOR

VIOLATION OF CAL. CIV. CODE 1798.85 FAILS AS

THERE IS NO ALLEGATION THAT TAITZ EVER

ACTUALLY PUBLICLY POSTED THE SOCIAL

SECURITY NUMBER OF OSTELLA. . . . . . . . . . . . . .

151. OSTELLAs Social Security Number Has Never Been

Published by TAITZ Per the FACs Allegations . . . . 15

2. Plaintiffs Allegation for Damages Is Mistaken as Civ.

Code 179.84 does not apply to Civ. Code 1798.85

Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15



6/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-vi-


3. The Communications Decency Act of 1996 Immunizes

TAITZ from Liability Arising out of Her Publication or

Re-Publication of Information Received from Another

Information Content Provider. . . . . . . . . . . . . . . . .

15G. PLAINTIFFS SEVENTH CAUSE OF ACTION FAILS AS

THERE IS NO CAUSE OF ACTION FOR EITHER

CYBER-HARASSMENT OR CYBER-

BULLYING,AND FURTHER, DOES NOT ALLEGE

THAT TAITZS CONDUCT AND ACTIONS INCLUDED

ANY CREDIBLE THREAD TO PLAINTIFFS SAFETY 17

H. PLAINTIFFS EIGHTH CAUSE OF ACTION FOR

DEFAMATION PER SE, SLANDER AND LIBEL PER SE

FAILS DUE TO PLAINTIFFS FAILURE TO

ADEQUATELY SPECIFY THE WHAT, WHO, WHERE,

AND HOW ANY SLANDER OR LIBEL WAS

DISSEMINATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. PLAINTIFFS NINTH CAUSE OF ACTION FOR

INTENTIONAL INFLICTION OF EMOTION DISTRESS

FAILS DUE TO PLAINTIFFS FAILURE TO ALLEGE

ACTIONS THAT ARE SUFFICIENTLY

OUTRAGEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

J. PLAINTIFFS TENTH CAUSE OF ACTION FOR

MALICIOUS PROSECUTION FAILS IN THATPLAINTIFFS CANNOT ALLEGE ANY INDEPENDENT

ACTION INITIATED BY TAITZ . . . . . . . . . . . . . . . . . . 21

K. PLAINTIFFS ELEVENTH CAUSE OF ACTION FOR

ABUSE OF PROCESS FAILS AS PLAINTIFFS CANNOT



7/33


8/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-viii-


Table of Authorities

Cases

Adams v. Superior Court2 Cal.App.4th 521 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23

Aisenson v. American Broad Co.220 Cal.App.3d 146 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Balistreri v. Pacifica Police Dept.901 F.2d 696 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Barrett v. Rosenthal40 Cal.4th 33 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Bell Atlantic Corp. v. Twombly550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18

Briscoe v. Readers Digest Assn.4 Cal.3d 529 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cantrell v. Forest City Publishing Co.419 U.S. 245 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cochran v. Cochran65 Cal.App.4th 488 (Cal.App.2d Dist. 1998) . . . . . . . . . . . . . . . . . . . . . . 20, 21

Diaz v. Oakland Tribune, Inc.139 Cal.App.3d 118 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Downey Venture v. LMI Ins. Co.66 Cal.App.4th 478 (1998)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

Eastwood v. Superior Court149 Cal.App.3d 409 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Eisenberg v. Alameda Newspapers74 Cal.App.4th 1359 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fellows v. National Enquirer42 Cal.3d 234 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gertz v. Robert Welch, Inc.

418 U.S. 323 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19Graehling v. Village of Lombard58 F.3d 295 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kapellas v. Kofman1 Cal.3d 20 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Kelly v. Johnson Publishing Co.160 Cal.App.2d 718 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19



9/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-ix-


Kinsey v. Macur107 Cal.App.3d 265 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Loomis v. Murphy217 Cal.App.3d 589 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Lugosi v. Universal Pictures25 Cal.3d 813 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

Masson v. New Yorker Magazine, Inc.501 U.S. 496 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Molko v. Holy Spirit Assn.46 Cal.3d 1092 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Montana v. San Jose Mercury News, Inc.34 Cal.App.4th 790 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Newspapers, Inc. v. Hepps

475 U.S. 767 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19

Porten v. University of San Francisco64 Cal.App.3d 825 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Rendell-Baker v. Kohn457 U.S. 830 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Scheid v. Fanny Farmer Candy Shops, Inc.859 F.2d 434 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Schmidt v. Foundation Health35 Cal.App.4th 1702 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Shelley v. Kraemer334 U.S. 1 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Shulman v. Group W Productions, Inc.18 Cal.4th 200, 74 Cal.Rptr.2d 843 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

Sprewell v. Golden State Warriors266 F.3d 979 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Transphase Sys. v. Southern Cal. Edison Co.839 F.Supp. 711 (C.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Drew259 F.R.D. 449 (C.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

W. Mining Council v. Watt643 F.2d 618 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Woodcourt II, Ltd. v. McDonald Co.119 Cal.App.3d 245 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23



10/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-x-


Statutes

Civil Code 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Civil Code 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Civil Code 1708.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Civil Code 1798.53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13, 14Civil Code 1798.83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15Civil Code 1798.84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17Civil Code 1798.85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Civil Code 1798.85(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Code of Civil Procedure 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Civil Code 3344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13Code of Civil Procedure 47(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Code of Civil Procedure 425.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Federal Rules of Civil Procedure 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 19

Other Authority

CACI 1520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23CACI 1800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6CACI 1801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8CACI 1802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Communications Decency Act (CDA)47 U.S.C. 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16Federal Civil Procedure Before Trial 9:221 . . . . . . . . . . . . . . . . . . . . . . . . . . 4Restatement (SECOND) of Torts46 cmt. d (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21



11/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-1-


MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant, ORLY TAITZ, is required to protect her rights with the

insurmountable task of filing a Motion to Dismiss pursuant to FRCP 12(b)(6) toaddress Plaintiffs 170-page First Amended Complaint [FAC], containing 423

paragraphs of allegations and eleven causes of action against Defendants (in reality,

15 causes of action, as Plaintiffs have included multiple causes of action under their

First, Fourth, Seventh and Eighth Causes of Action) that pertain to specific and

individualized allegations relating to each of three Plaintiffs, LISA LIBERI,

PHILIP J. BERG and LISA M. OSTELLA, all within the 25-page limit under Local

Rule 7-5(a). In short, here we do the best that we can.

The crux of Plaintiffs FAC is based upon their allegations that TAITZ has,

in exercising her First Amendment rights to freedom of speech and public

participation, concurrently violated the Plaintiffs rights by (1) invasion of their

right to privacy under the First and Fourteenth Amendments and under the

California Constitution; (2) publicly disclosed Plaintiffs allegedly private facts; (3)

presenting each of the Plaintiffs in a false light; (4) misappropriating Plaintiffs

LIBERIs and OSTELLAs likenesses; (5) statutory invasion of privacy; (6) posting

LIBERIs social security numbers in violation of statute; (7) cyber-stalking the

Plaintiffs; (8) defamationper se, slander, as well as libelper se; (9) intentional

infliction of emotional distress; (10) malicious prosecution; and (11) abuse of

process.

The sizzle that started this fire stems from two separate instances: (1)TAITZs attempt to publish public records regarding LIBERIs criminal history

(particularly under San Bernardino County Criminal Case No. FWV028000 for

LIBERIs violations in 2001, and Case No. FSB044914 for her violations in 2002);

and (2) TAITZs expression that her former webmaster, OSTELLA, took away

control of the websites DefendOurFreedoms.net, DefendOurFreedoms.org and



12/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-2-


DefendOurFreedoms.us, all websites that were created for the purpose of

promoting TAITZs non-profit organization, Defend Our Freedoms Foundation,

Inc., and began solicit donations to OSTELLA personally under the Defend Our

Freedoms banner. Both LIBERI and OSTELLA took issue to TAITZs decision toair out this dirty laundry in public, and it appears that BERG took issue because of

the implication by association that his employee, LIBERI, was a convicted forger.

Although TAITZ is not addressing this matter under the California Anti-

SLAPP statute, California Code of Civil Procedure 425.16, it is clear that

TAITZs actions all fall under the purview of the statutes protections, and that

Plaintiffs FAC is an attempt to clamp down on TAITZs ability to exercise her

rights to freedom of speech and public participation. This Motion to Dismiss,

however, is predicated upon the fact that Plaintiffs have failed to state a claim for

any of their causes of action under FRCP 12(b)(6) as a result of vague and

conclusory allegations, thereby failing to assert the proper elements necessary to

assert each cause of action, as follows:

(1) Plaintiffs First Cause of Action fails as there is there is no personal

right of action under the First and Fourteenth Amendments, and further

Plaintiffs have failed to adequately specify what, if any, privacy has

been invaded; and if so, how such privacy has been invaded;

(2) Plaintiffs Second Cause of Action fails as Plaintiffs have failed to

adequately specify what, if any, private facts have been publicized, and

have failed to adequately allege that they are not newsworthy;

(3) Plaintiffs Third Cause of Action fails as Plaintiffs have failed to allegeprecisely what TAITZ has publicly stated that has lead to any alleged

false depiction of Plaintiffs;

(4) Plaintiffs Fourth Cause of Action fails as Plaintiffs do not properly

allege how presentation of factual news-related information regarding

Plaintiffs is a misappropriation of their likeness;



13/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-3-


(5) Plaintiffs Fifth Cause of Action fails in that it does not provide any

allegations that the alleged disclosed information was obtained from a

government agency;

(6) Plaintiffs Sixth Cause of Action fails as there is no allegation thatTAITZ ever actually publicly posted any social security number of

Plaintiffs;

(7) Plaintiffs Seventh Cause of Action fails as there is no cause of action

for either Cyber-Harassment or Cyber-Bullying, and further, does

not allege that TAITZs conduct and actions included any credible

threat to Plaintiffs safety;

(8) Plaintiffs Eighth cause of action for Defamationper se, Slander and

Libelper se fails due to Plaintiffs failure to adequately specify the

what, who, where and how any slander or libel was disseminated, and

fails to address TAITZs free speech and public participation rights;

(9) Plaintiffs Ninth cause of action for Intentional Infliction of Emotional

Distress fails due to Plaintiffs failure to allege actions that are

sufficiently outrageous;

(10) Plaintiffs Tenth cause of action for Malicious Prosecution fails in that

Plaintiffs cannot allege any independent action initiated by TAITZ;

and

(11) Plaintiffs Eleventh cause of action for Abuse of Process fails, as

Plaintiffs cannot identify any process that has taken place as a result of

TAITZs alleged actions.As a result of the insufficient pleadings, Plaintiffs FAC, and its causes of

action related to Defendant, ORLY TAITZ, fail in their entirety. For these reasons,

as explained as best as possible below given the page-limitation restraints under

Local Rule 7-5, Plaintiffs FAC as to TAITZ should be dismissed in its entirety

without leave to amend.



14/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-4-


II. STANDARD OF REVIEW

A complaint is properly dismissed under a Rule 12(b)(6) motion when there

is an absence of sufficient facts alleged under a cognizable legal theory. Balistreri

v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Even though the Courtmust assume that the allegations in a complaint are true in a Rule 12(b)(6) motion,

the Court does not need to accept as true conclusory allegations ... or unreasonable

inferences. Transphase Sys. v. Southern Cal. Edison Co., 839 F. Supp. 711, 718

(C.D. Cal. 1993) (citing Schwarzer, Tashima, and Wagstaffe, FEDERAL CIVIL

PROCEDURE BEFORE TRIAL, 9:221 at page 9-41). While the legal standard is

quite liberal ... more than the bare assertion of legal conclusions is necessary

to overcome a Rule 12(b)(6) motion to dismiss. [Emphasis added] Scheid v.

Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). A court need

not accept as true unreasonable inferences or conclusory legal allegations cast in the

form of factual allegations. Sprewell v. Golden State Warriors, 266 F.3d 979, 988

(9th Cir. 2001); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Although a lawsuit should not be dismissed if it is possible to hypothesize facts, a

complaint must still allege enough facts to state a claim that is plausible on its

face. Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When this standard has not

been met, the case must be dismissed. Bell Atlantic Corp., supra.

III. LEGAL ARGUMENT

A. PLAINTIFFS FIRST CAUSE OF ACTION FAILS AS THERE IS

NO PERSONAL RIGHT OF ACTION UNDER THE FIRST ANDFOURTEENTH AMENDMENTS, AND FURTHER, PLAINTIFFS

HAVE FAILED TO ADEQUATELY SPECIFY WHAT, IF ANY,

REASONABLE EXPECTATION OF PRIVACY HAS BEEN INVADED

Under California law, an invasion of privacy occurs where one intentionally

intrudes, physically or otherwise, upon the solitude, seclusion, private affairs, or



15/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-5-


concerns of another, in a manner that would be highly offensive to a reasonable

person. Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 231, 74 Cal. Rptr.

2d 843 (1998). In order to properly allege a cause of action for invasion of privacy,

five elements must be alleged: (1) that the Plaintiffs had a reasonable expectation ofprivacy in the areas that has been allegedly intruded upon; (2) an intentional

intrusion into this area by the Defendant; (3) that the intrusion would be highly

offensive to a reasonable person; (4) Plaintiffs were harmed; and (5) that the

intrusion was a substantial factor in causing the harm. California Civil Jury

Instructions (CACI) 1800. In this instance, each of the three Plaintiffs have failed

to allege facts showing that TAITZ intruded upon their reasonable expectation of

privacy. Further, Plaintiffs have no ability to sue TAITZ, a private individual, under

the First and Fourteenth Amendments to the United States Constitution.

1. The U.S. Constitution Does Not Recognize the Right to Sue a Private

Individual under the First or Fourteenth Amendments

Plaintiffs claims for Invasion of Privacy under the First and Fourteenth

Amendments of the U.S. Constitution against TAITZ have no legal basis. The

Fourteenth Amendment cannot apply to private conduct, however discriminatory

or wrongful. Shelley v. Kraemer, 334 U.S. 1, 13 (1948). By extension, the First

Amendment does not apply to private conduct either. Rendell-Baker v. Kohn, 457

U.S. 830, 837 (1982). Any inference that TAITZ, a self-proclaimed dissident, is

perpetrating a state action in this action is quite a stretch, and such Constitutional

claims should be dismissed.

2. Plaintiff BERG, a Nationally Prolific Attorney Seeking Pro Hac ViceStatus, Has No Reasonable Expectation of Privacy as to His Disciplinary

Record

In determining whether Plaintiffs have a reasonable expectation of privacy,

this court may consider (a) the identity of the Defendant; (b) the extent to which

other persons had access to the allegedly private information; (c) The means by



16/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-6-


which the intrusion occurred. CACI 1800. In this matter, TAITZ is an attorney and

party in a lawsuit. In order to be admitted pro hac vice, an attorney must be in good

standing in their home state. In this case, TAITZ had the right to investigate

BERGs standing as he applied for pro hac vice, as alleged in the FAC, in litigationconcerning both attorneys. The information regarding BERGs disciplinary record is

contemplated under California Civil Code 47(b), which identifies such

information as privileged in a litigation context.

Further, BERGs disciplinary status with the Pennsylvania State Bar is a

matter of public record, accessible by the public via the Internet. The documents

that are part of these publicized proceedings are by definition accessible by BERG,

the filer of any paperwork, and the Pennsylvania Disciplinary Board. There is no

reasonable expectation of privacy for BERG in this situation; as such, BERGs

claim should be dismissed.

3. Plaintiff OSTELLA Fails to Provide Allegations that TAITZ Intruded

on Her Reasonable Expectation of Privacy

Plaintiff OSTELLAs only specific allegation regarding her alleged invasion

of privacy pertains to an expectation of privacy pertaining to her adoption records.

(FAC 195.) There are no allegations regarding how TAITZ invaded this alleged

expectation of privacy. OSTELLAs adoption issue may be related to the allegation

that OSTELLA was mysteriously contacted by a woman claiming to be her

biological mother. (FAC 102.) OSTELLA has made no, and cannot make any,

allegation that satisfies the second element of the cause of action for Invasion of

Privacy, as there is no legally cognizable connection between TAITZ and thismysterious woman. Rather, OSTELLAs cause of action rests on pure speculation,

as is evident on the face of the FAC. Without any allegation that TAITZ invaded

OSTELLAs privacy, OSTELLAs claim should be dismissed in its entirety.

///

///



17/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-7-


4. Plaintiff LIBERI Fails to Assert any Reasonable Expectation of

Privacy Regarding Several of Her Alleged Privacy Issues

Plaintiff LIBERI makes several meritless assertions that her reasonable

expectation of privacy has been intruded upon by TAITZ, including that LIBERIsprobation information was discovered by TAITZ (FAC 192); that LIBERIs

sisters death was discovered by TAITZ (FAC 193); and that LIBERIs address

was allegedly discovered by TAITZ (FAC 190-191). LIBERI has no reasonable

expectation of privacy for any of these issues.

As to the probation, as a convicted criminal, LIBERI should understand that

many of her civil rights, as related to probation, have been voluntarily waived by

her; this both includes rights to privacy and Fourth Amendment rights, as it pertains

to her probation. The fact that TAITZ may have learned public information

regarding LIBERIs criminal charges and subsequent probation does not invade a

probationers reasonable expectation of privacy.

As to LIBERIs sisters death, and LIBERIs address, both are a matter of

public record. As previously noted, LIBERIs privacy, as a person on probation, is

limited; this includes a limitation on the privacy of where LIBERI resides, as the

criminal courts and probation department must have knowledge of LIBERIs

residence at all times. Similarly, the death of any person, including LIBERIs sister,

is a matter of public records.

Furthermore, Plaintiffs include several non-specific and conclusory

allegations of privacy intruded upon that fail to specifically identify what, if any,

private information was intruded upon by TAITZ. The conclusory allegations allegethat TAITZ took part in illegally accessing, disclosing and distributing Plaintiffs

privileged and private credit reports, financial data, primary identifying information,

and other confidential information, confidential disciplinary documents,

photographs, sealed case information, etc. (FAC 197), and does not satisfy the

pleading requirements necessary to assert the Invasion of Privacy cause of action. In



18/33


19/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-9-


Paragraph 207 identifies a number of areas in which the Plaintiffs have an

alleged reasonable expectation of privacy. Paragraph 208 states that the Defendants

have disclosed private facts without identifying what those private facts are, and

declares them to not be newsworthy. Finally, Paragraph 209 provides a compendiumof generic private facts that Plaintiffs allege that the Defendants disclosed: credit

report, financial data, primary identifying information, photographs [sic], sealed

case information, disciplinary documents, etc.

As held in Porton, the disclosure of private facts must be a public disclosure

and not a private one. There must be, in other words, publicity in the sense of

communication to the public in general or to a large number of persons, as

distinguished from one individual or a few. Porten, supra, 64 Cal. App. 3d at 828.

Plaintiffs identify a number of categories of private facts that have been allegedly

disclosed by TAITZ, but not one actual private fact. Additionally, Plaintiffs have

failed to allege a public disclosure of these unidentified private facts.

The cause of action, on its face, fails each of its elements. Not only are the

private facts allegedly disclosed left in obscurity, but to whom they were disclosed

is not alleged. Without these two elements, it is impossible to determine whether, on

its face, these alleged generic facts are highly objectionable, or if they fit a

newsworthy purpose. As noted in the previous cause of action, matters of public

record are not private facts. Kapellas v. Kofman, 1 Cal. 3d 20, 38 (1969). Case

information, disciplinary documents, even primary identifying information and

financial data may all be matters of public record.

The Second Cause of Action for Public Disclosure of Private Facts fails inthat it does not allege facts necessary to support the elements on the claim of relief.

With such uncertainty on its face, this Cause of Action should be dismissed.

///

///

///



20/33


21/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-11-


portray LIBERI as a lifelong document forger, a perjure [sic], a person with current

criminal charges pending against her, etc. LIBERI, however, fails to identify what,

if any, of the statements are that caused this alleged negative portrayal. In other

words, the conclusory portrayal is alleged, but not the actual statements that led tothat portrayal.

The tort of False light must be accompanied by publicity in the sense of an

actual communication to the public in general. Kinsey v. Macur, 107 Cal. App. 3d

265, 290 (1980). As such, Plaintiffs must actually allege what it is that TAITZ

allegedly communicated that led to the false portrayals. For instance, in Cantrell v.

Forest City Publishing Co., 419 U.S. 245 (1974), a newspaper printed a depiction of

a family as living in a dilapidated home, which portrayed the family as abjectly

poor.Id. at 247. In this case, however, it is through unspecified false, misleading

and defamatory statements that TAITZ has allegedly created the alleged portrayal

of LIBERI.

The same can be said of Paragraph 218 of the FAC, as the same mysterious

false, misleading and defamatory statements appear to now portray OSTELLA as

a thief, a hacker, of stealing, of having a criminal record, among other things.

And in Paragraph 219, the same false, misleading and defamatory statements

portray BERG as dishonest, a thief, of forging court documents in this case.

Plaintiffs must allege what these false, misleading and defamatory statements are in

order to state a claim for False Light.

The only concrete allegations of statements made by TAITZ are in Paragraph

217, where Plaintiffs allege that TAITZ stated that LIBERI is a career forger; acareer document forger; a thief; that Liberi was convicted of forgery; that Liberi

was convicted of multiple forgeries. This again falls afoul of the first element, as

there is no indication that these alleged statements by TAITZ were ever made to the

public in general. Furthermore, LIBERIs criminal convictions for forgery are a

matter of public record, of which this Court may take judicial notice.



22/33


23/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-13-


OSTELLA continues to operate and profit from the websites

DefendOurFreedoms.net and DefendOurFreedoms.org, cribbing the identity of

TAITZs non-profit corporation, Defend our Freedoms Foundations, Inc.)

LIBERI and OSTELLA go on to allege that TAITZ made in excess of$100,000 by virtue of using their names, and also that they were not compensated

for the use of their likeness on TAITZs blog. (FAC 228, 232.) The cause of

action makes more sense when it involves Clint Eastwood suing for use of his

image in selling magazines. Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417

(1995). It makes less sense when it involves a paralegal (LIBERI) and a webmaster

(OSTELLA) who do not have a livelihood based on their public persona.

LIBERI and OSTELLA have failed to, and are unable, to assert causes of

action under the common law right of publicity, and misappropriation of likeness

under Civil Code 3344. As such, Plaintiffs Fourth Cause of Action should be

dismissed in its entirety, without leave to amend.

E. PLAINTIFFS FIFTH CAUSE OF ACTION FOR VIOLATION

OF CAL. CIV. CODE 1798.53 FAILS IN THAT THE FAC DOES NOT

PROVIDE ANY ALLEGATIONS THAT THE ALLEGED DISCLOSED

INFORMATION WAS OBTAINED FROM A GOVERNMENT AGENCY

California Civil Code 1798.53 provides, in pertinent part: Any person

who intentionally discloses information, not otherwise public, which they know or

should reasonably know was obtained from personal information maintained by a

state agency or from records within a system of records maintained by a

federal government agency, shall be subject to a civil actionThe complaint is devoid of any disclosure by TAITZ of information relating

to OSTELLA which was obtained from personal information maintained by a state

or federal government agency. The information that OSTELLA appears to claim a

privacy right to is in her credit, financial, primary identification, and other private

data. (FAC 241.) The complaint then concludes, without any facts to support the



24/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-14-


conclusion, that Defendants violated Plaintiffs LIBERI and OSTELLAS privacy

rights and Cal. Civ. Code 1798.53 by intentionally illegally accessing, disclosing

and distributing their privileged credit reports, financial data, primary identifying

information, and other confidential information which Defendants knew orshould have known was obtained from personal information maintained by State

and Federal agencies, to unauthorized third parties. (FAC 243.) As it relates to

alleged confidential information belonging to OSTELLA, despite being 172 pages

in length, the FAC makes no mention of how TAITZ obtained credit reports,

financial data, and other confidential information about OSTELLA and, more

importantly, is silent as to how TAITZ allegedly disclosed that information to third

parties. In fact, Plaintiffs own allegations contradict Defendants conclusory

allegation regarding the origin of the information that TAITZ allegedly obtained

and disclosed.

In paragraph 68 of the FAC, Plaintiffs adopted TAITZS alleged web posting

that the information she was obtaining came from databases: LexisNexis and

Choicepoint. (FAC 68.) Additionally, Plaintiffs admit that Neil Sankey first

circulated the article which claimed that LIBERI had an extensive criminal record

going back to the 1990s (FAC 63) and that it was Sankey who provided TAITZ

with an e-mail containing LIBERIS social security numbers, her husbands name,

date of birth, maiden name, and residence (FAC 69). As such, there is no allegation

that any private information was gleaned from governmental agencies; quite the

opposite, the allegations indicate that the private information, if any was obtained,

were through private corporations and individuals. As such, Plaintiffs cause ofaction for violation of Civil Code 1798.53 fails, and should be dismissed in its

entirety.

///

///

///



25/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-15-


F. PLAINTIFFS SIXTH CAUSE OF ACTION FOR VIOLATION

OF CAL. CIV. CODE 1798.85 FAILS AS THERE IS NO ALLEGATION

THAT TAITZ EVER ACTUALLY PUBLICLY POSTED THE SOCIAL

SECURITY NUMBER OF OSTELLA1. OSTELLAs Social Security Number Has Never Been Published by

TAITZ Per the FACs Allegations

California Civil Code 1798.85(a)(1) provides, in pertinent part that a person

may not Publicly post or publicly display in any manner an individuals social

security number. Plaintiffs FAC, however, is devoid of any factual allegation that

TAITZ publicly posted or displayed OSTELLAs social security number. As such,

this cause of action, as to Plaintiff OSTELLA, should be dismissed in its entirety,

without leave to amend.

2. Plaintiffs Allegation for Damages Is Mistaken as Civ. Code

1798.84 does not apply to Civ. Code 1798.85 Violations

Also, Plaintiffs alleged remedy under Section 1798.85 is mistaken and

invalid. In Plaintiffs FAC, Plaintiffs assert that TAITZ, a private individual, may be

subject to a $3,000 fine per violation of the statute per Civ. Code 1798.84. This is

incorrect, as Section 1798.84 specifically only applies to violations of Civ. Code

1798.83 as follows:

In addition, for a willful, intentional, or reckless violation ofSection 1798.83, a customer may recover a civil penalty not toexceed three thousand dollars ($3,000) per violation; otherwise,the customer may recover a civil penalty of up to five hundreddollars ($500) per violation for a violation of Section 1798.83.

This language is conveniently edited out of Plaintiffs FAC.3. The Communications Decency Act of 1996 Immunizes TAITZ from

Liability Arising out of Her Publication or Re-publication of Information

Received from Another Information Content Provider

Additionally, pursuant to the allegations in the FAC alone are sufficient to

establish statutory immunity under the Communications Decency Act (CDA). 47



26/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-16-


U.S.C. 230. Plaintiffs FAC alleges that Neil Sankey first circulated the article

which claimed that LIBERI had an extensive criminal record going back to the

1990s (FAC 63), and that it was Sankey who provided TAITZ with an e-mail

containing LIBERIs social security numbers, her husbands name, date of birth,maiden name, and residence (FAC 69). Plaintiffs allege in the FAC that the

information she (Taitz) was obtaining came from databases: LexisNexis and

Choicepoint (FAC 68) and further allege that Defendant Orly Taitz already had

Liberi and Ostellas private data from the Reed Defendants and Defendant Intelius,

Inc. (FAC 70).

Under the CDA, TAITZ, as a user of an interactive computer service, cannot

be treated as the publisher or speaker of information provided by another

information content provider such as LexisNexis, Inltelius and Choicepoint. The

CDA provides in relevant part that: [n]o provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information

provided by another information content provider. 47 U.S.C. 230(c)(1) Further,

the CDA states that No cause of action may be brought and no liability may be

imposed under any State or local law that is inconsistent with this section. 46

U.S.C. 230(e)(3).

This matter is similar to Barrett v. Rosenthal, 40 Cal.4th 33 (2006). In Barrett,

plaintiffs operated Web sites devoted to exposing health frauds. The defendant

operated an internet discussion group. Plaintiffs alleged that the defendant

committed libel by maliciously distributing defamatory statements in e-mails and

Internet postings by republishing various messages even after plaintiffs warned thatthey were false and defamatory. The California Supreme Court held that defendant

was, in fact, protected from liability under the circumstances under the CDA. Barrett

held that Section 230 of the CDA exempts internet intermediaries from defamation

liability for republication. Barrett, supra, 40 Cal.4th at 63. As such, the CDA

immunizes TAITZ, whose alleged republishing of the social security number was,



27/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-17-


like Barrett, from other sources, such as LexisNexis and Choicepoint, and Sankey.

For these reasons, Plaintiffs cause of action under Civil Code 1798.84 fails to

state a claim of relief, and should be dismissed.

G. PLAINTIFFS SEVENTH CAUSE OF ACTION FAILS ASTHERE IS NO CAUSE OF ACTION FOR EITHER CYBER-

HARASSMENT OR CYBER-BULLYING, AND FURTHER, DOES NOT

ALLEGE THAT TAITZS CONDUCT AND ACTIONS INCLUDED ANY

CREDIBLE THREAT TO PLAINTIFFS SAFETY

Plaintiffs Seventh Cause of Action alleges three causes of action, two of

which have no basis for relief under California law: Cyber-Harassment and

Cyber-Bullying. See generally, United States v. Drew, 259 F.R.D. 449 (C.D. Cal.

2009). The final tort of Cyber-Stalking is cognizable to the extent that it is merely

an allegation of the California tort of stalking, codified under California Civil Code

1708.7. In order to establish the tort of stalking, Plaintiffs must allege the

following four elements: (1) that TAITZ engaged in a pattern of conduct the intent

of which was to follow, alarm, or harass them; (2) that, as a result of the alleged

pattern of conduct, Plaintiffs reasonably feared for their safety, or that of an

immediate family member; (3) that part of the alleged pattern of conduct was a

credible threat with the intention of placing the Plaintiffs in reasonable fear for their

safety, or that of an immediate family member; and (4) on at least one occasion, the

Plaintiffs clearly and definitively, but unsuccessfully, demanded that the defendant

stop that pattern of conduct. Cal. Civ. Code 1708.7.

Pursuant to the allegations in Plaintiffs FAC, neither OSTELLA nor LIBERIcan meet either the first or third elements of a claim for stalking. Plaintiffs have

failed to sufficiently allege that TAITZs intention was ever to follow, alarm, or

harass OSTELLA and LIBERI.

Moreover, the FAC is bare when it comes to credible threats allegedly

made by TAITZ against LIBERI and OSTELLA. The only threats made by TAITZ



28/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-18-


alleged by Plaintiffs were contained in Paragraph 275 of the FAC where they claim

that Taitz openly threatened to destroy Liberi and get rid of her; Taitz threatened to

have Liberis children professionally kidnapped; Taitz has called for the political

purging of Liberi and Ostella. None of these threats, standing alone, are sufficientcredible threats under the circumstances.

To establish a credible threat, the allegations must be supported with

independent corroborating evidence such that the (f)actual allegations must be

enough to raise a right to relief above the speculative level ... on the assumption that

all the allegations in the complaint are true (even if doubtful in fact). In short, it

must allege enough facts to state a claim to relief that isplausible on its face. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556557, 570 (2007) (parentheses in

original; emphasis added).

TAITZs alleged uttering that she would destroy or get rid of LIBERI are

not threats of violence per se, and sound like nothing more than posturing. Further,

the allegation that some unspecified supporter of TAITZ informed OSTELLA that

she her children would be professionally kidnapped is farcical and should be

disregarded; even if true that a person made this statement, there is no credible link

to TAITZ.

There are insufficient allegations, much less credible allegations, that give

any credence to any actual credible threat from TAITZ. With conclusory allegations

that provide no more than speculation, this cause of action should be dismissed in

its entirety without leave to amend.

H. PLAINTIFFS EIGHTH CAUSE OF ACTION FORDEFAMATION PER SE, SLANDER AND LIBEL PER SE FAILS DUE TO

PLAINTIFFS FAILURE TO ADEQUATELY SPECIFY THE WHAT, WHO,

WHERE AND HOW ANY SLANDER OR LIBEL WAS DISSEMINATED

A cause of action for Defamation is supported upon the following five

elements: (1) a false statement of fact (Schmidt v. Foundation Health, 35 Cal. App.



29/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-19-


4th 1702, 1716 (1995)); (2) published (California Civil Code 45, 46); (3) of or

concerning the plaintiff(California Code of Civil Procedure460; Kelly v. Johnson

Publishing Co., 160 Cal.App.2d 718(1958)); (4) causing injury to the plaintiffs

reputation (Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) ; and(5) malice (Newspapers, Inc. v. Hepps, 475 U.S. 767, 773-75 (1986)) or fault (Gertz

v. Robert Welch, Inc., 418 U.S. 323, 347, 349 (1974)).

Although Plaintiffs have attempted to identify a number of defamatory

statements allegedly made by TAITZ, Plaintiffs have failed to properly enumerate

details necessary regarding each statement to create a cognizable claim under FRCP

12(b)(6). As with the Third Cause of Action for False Light, Plaintiffs have failed to

satisfy the first element of a claim of defamation: identifying what, if any,

statements TAITZ actually made that are allegedly defamatory. Instead, Plaintiffs

allege how TAITZ has portrayed each of the three Plaintiffs: as for LIBERI, she is

merely portrayed as a lifelong document forger, a perjure [sic], a person with

current criminal charges pending against her, and a number of other portrayals.

(FAC 285.) This subjective and improperly conclusive observation by LIBERI

does not, and cannot, establish a cause of action of defamation.

The cause of action for defamation requires an allegation of actual false

statements of fact made by TAITZ, not interpreted portrayals by the Plaintiffs.

Similarly, Plaintiff OSTELLA is merely subjectively portrayed as a thief, a

hacker, of stealing, having a long criminal record, etc. (FAC 286); and Plaintiff

BERG is merely subjectively portrayed as dishonest, a thief, of forging court

documents in this case of perjury, etc. (FAC 287). This cause of action is devoidof allegations of TAITZs false statements of fact that actually give rise to this cause

of action for defamation. For this reason, Plaintiffs cause of action for Defamation

Per Se, Slander and Liber Per Se fails to assert a cause of action under FRCP

12(b)(6), and as such, should be dismissed, without leave to amend.

///



30/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-20-


I. PLAINTIFFS NINTH CAUSE OF ACTION FOR

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS DUE TO

PLAINTIFFS FAILURE TO ALLEGE ACTIONS THAT ARE

SUFFICIENTLY OUTRAGEOUSPlaintiffs cause of action for IIED is based entirely upon the prior causes of

action, meaning that the IIED cause of action as to TAITZ is completely reliant

upon TAITZs alleged invasion of privacy, disclosure of private facts, placing

Plaintiffs in a false light, defaming Plaintiffs, maliciously prosecuting LIBERI, and

cyber-stalking. The mere allegation that a defendant has acted tortiously, however,

is not enough to establish a cause of action for IIED. The Court in Cochran v.

Cochran, 65 Cal. App. 4th 488, 496 (Cal. App. 2d Dist. 1998), citing RESTATEMENT

(SECOND)TORTS 46 cmt. d (1965) stated:

In evaluating whether the defendants conduct was outrageous, itis not...enough that the defendant has acted with an intentwhich is tortious or even criminal, or that he has intended toinflict emotional distress, or even that his conduct has beencharacterized by malice, or a degree of aggravation which wouldentitle the plaintiff to punitive damages for another tort. Liabilityhas been found only where the conduct has been so outrageous incharacter, and so extreme in degree as to go beyond all possiblebounds of decency, and to be regarded as atrocious, and utterlyintolerable in a civilized community. [Emphasis added.]

Additionally, Cochran, supra, 65 Cal. App.4th at 497 was unequivocally clear

on this subject topic, that typical hostile unpleasantries are not actionable:

...feuds are often accompanied by an exchange of hostileunpleasantries which are intended to sting whoever sits at thedelivery end. While the pain inflicted might be real, the tort ofintentional infliction of emotional distress was never intended

to remove all such barbs. To hold otherwise would needlesslycongest our Courts with trials for hurts both real andimagined which are best resolved elsewhere. [Emphasisadded.]

The tortious conduct alleged does not rise to the level of being beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community as required under the RESTATEMENT (SECOND)TORTS



31/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-21-


46 and California law. See Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 1122

(1988). The ongoing dispute between Plaintiffs and TAITZ is merely part of the

unpleasantries incidental thereto. Even if the TAITZs alleged tortious conduct

was intended to sting Plaintiffs, it simply does not rise to the level of a cause ofaction for Intentional Infliction of Emotional Distress under Cochran. See Cochran,

supra 65 Cal. App.4th at 497.Plaintiffs are already entitled to recovery under each

of the alleged torts of which they have accused TAITZ; the IIED cause of action

overstates Plaintiffs claims, and is duplicative of relief already provided for.

Plaintiffs have failed to adequately state a cause of action for Intentional Infliction

of Emotional Distress, and as such, it should be dismissed without leave to amend.

J. PLAINTIFFS TENTH CAUSE OF ACTION FOR MALICIOUS

PROSECUTION FAILS IN THAT PLAINTIFFS CANNOT ALLEGE ANY

INDEPENDENT ACTION INITIATED BY TAITZ

LIBERIs malicious prosecution cause of action is entirely based upon

Defendants filing of a Motion for Emergency Revocation of Probation against

LIBERI in San Bernardino County Superior Court. (FAC 316) The malicious

prosecution cause of action is based upon a motion that LIBERI alleges was

wrongfully filed by TAITZ.

The commission of the tort of malicious prosecution requires a showing of an

unsuccessful prosecution of a criminal or civil action, which any reasonable

attorney would regard as totally and completely without merit, for the intentionally

wrongful purpose of injuring another person. Downey Venture v. LMI Ins. Co., 66

Cal. App. 4th 478, 499 (1998). Malicious prosecution actions require the initiationof an actual full-blown action. As such, subsidiary procedural actions within a

lawsuit, such as an application for a restraining order, does not support a claim for

malicious prosecution. Adams v. Superior Court, 2 Cal.App.4th 521, 528 (1992).

As such, it is clear that TAITZs alleged motion for revocation of probation in

///



32/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

-22-


LIBERIs criminal case was not an independent action under the purview of this

cause of action.

In Adams, the defendants were being sued by Plaintiff Vu alleging four

causes of action for malicious prosecution and abuse of process. Vus lawsuit wasbased on the premise that the attorneys acted tortiously when they attempted to

intervene in criminal cases in Santa Clara and San Mateo Counties, where Vu was

attempted to have felony convictions reduced or expunged, which was granted.

After both courts granted reduced or expunged the felony charges, defendants filed

motions for reconsideration, seeking to bring to the attention of the respective courts

Vus alleged conduct in a fraudulent real estate sale. Both the San Mateo County

Superior Court and the Santa Clara County Superior Court denied the defendants

motions. Held, that the tort of malicious prosecution requires the initiation of a

full-blown action as well as its favorable termination for the malicious prosecution

plaintiff, neither of which occurred.Id. at 528.

This case is just like Adams, where there is neither a full-blown action

initiated by TAITZ or a favorable outcome. Because the prior action element of a

cause of action for malicious prosecution has not been alleged, Plaintiffs have failed

to state any facts on which this cause of action may be based.

K. PLAINTIFFS ELEVENTH CAUSE OF ACTION FOR ABUSE

OF PROCESS FAILS AS PLAINTIFFS CANNOT IDENTIFY ANY

PROCESS THAT HAS TAKEN PLACE AS A RESULT OF TAITZS

ALLEGED ACTIONS

LIBERIS abuse of process cause of action is again entirely based uponDefendants filing of a Motion for an Emergency Revocation of Probation with

regard to LIBERIs probation in San Bernardino County Superior Court, which

LIBERI alleges was wrongfully filed by TAITZ. (FAC 327.)

In order to state a claim for abuse of process, LIBERI must establish a

substantial use or misuse of a legal process. Loomis v. Murphy, 217 Cal.App.3d



33/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

589, 595 (1990). An abuse of process is an act done in the name of the court and

under its authority by use of a legal process for the purpose of perpetrating an

injustice. CACI 1520; Woodcourt II, Ltd. v. McDonald Co., 119 Cal.App.3d 245,

252 (1981). The Court of Appeal in Adams v. Superior Court, supra, held that oneof the bases for sustaining defendants demurrer to Vus complaint for abuse of

process was because the motions filed in the criminal cases were denied, and thus

did not result in any order or process which could be misused by the defendants

was not sufficient to support plaintiffs abuse of process claim. Adams, supra, 2

Cal.App.4th at 532.

The same holding and reasoning should apply here. Assuming all of

Plaintiffs allegations to be true, because Plaintiffs admitted that Judge Sabet denied

the motions (FAC 316), LIBERI has failed to present any facts to support her cause

of action for abuse of process since, as a matter of law, no process was either

issued or misused by TAITZ.

IV. CONCLUSION

As a result of the insufficient pleadings, Plaintiffs FAC, and its causes of

action related to Defendant, ORLY TAITZ, fail in their entirety. While the bulk of

the allegations directly implicate the Defendants rights to freedom of speech and

participation in the public process, and therefore subject to Anti-SLAPP, the eleven

causes of action against TAITZ and DOFF are wholly insufficiently pleaded. For

these reasons, as explained as best as possible below given the page-limitation

restraints under Local Rule 7-5, Plaintiffs FAC as to TAITZ and DOFF should be

dismissed in its entirety, without leave to amend.DATED: July 11, 2011 SCHUMANN, RALLO & ROSENBERG, LLP

/s/-Peter CookBy: ___________________________Kim Schumann, Esq.Peter Cook Esq.Attorneys for Defendant,ORLY TAITZ


liberi v taitz (c.d. ca) - 280.0 - notice of motion and motion to dismiss case pursuant to frcp...

Documents