lincoln v daylight chemical, et al. - 37 - reply in support of motion to strike - 031111666234.37.0

8/7/2019 LINCOLN v DAYLIGHT CHEMICAL, et al. - 37 - REPLY IN SUPPORT OF MOTION to Strike - 031111666234.37.0

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1 BARTLEY L. BECKER, SB# 70109E-Mail: becker~bbslaw.com2 WILLIAM E. PA ARES, SB# 187740E-Mail: B:allares(iV.lbbslaw.com3 LEWIS B ISBOI1;BISGAARD& SMITH LLP221 North Figueroa Street, Suite 12004 Los Angeles, California 90012Telephone: (213) 250-18005 Facsimile: (213) 250-79006 Atton1eys for Defendants LAW OFFICE OF ORLYTAITZ and DR. ORLY TAITZ, ESQ., D.D.S., J.D.7891011 CHARLES EDWARD LINCOLN, III,1213

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA, SANTA ANA DIVISION

Plaintiff,v.

14 DAYLIGHT CHEMICALINFORMATION SYSTEMSt5 INCORPORATED YOSEF AITZ,ORLYTAITZ, INC., APPEALING16 DENTISTRY, LAW OFFICE OF ORLYTAITZ(RICO Enterprise), DR. ORLY17 TAITZ, ESQ., D.D.S;.~J.D., DEFENDOUR FREEDOMS FuUNDATION, and18 all JOHN & JANE DOES 1-10,1920212223242526

Defendants.

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481795346952.1

CASE NO. 8:10-cv-01573-AG-PLADEFENDANTS LAW OFFICE OFORLYTAITZ' ANDDR.ORLYTAITZ, ESQ .. D.D.S., J.D.'S REPLYBRIEF IN SUPPORT OF THEIRMOTION TO STRIKE PLAINTIFF'SFIRST CLAIM FOR RELIEFPURSUANT TO SECTION 425.16 OFTHE CALIFORNIA CODE OF CIVILPROCEDURE

REPLY BRIEF IN SUPPORTOF THE ANTI-SLAP MOTION

Date:Time:Ctnn.:February 14,201110:00 a.m.100

CASE NO. 8:lOCV-O1573-AG (PLAX)

Case 8:10-cv-01573-AG -PLA Document 37 Filed 01/31/11 Page 1 of 10 Page ID#:1009


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Defendants Law Office ofOrly Taitz and Dr. Orly Taitz, Esq., D.D.S., J.D.(hereinafter "Defendants") hereby submit their reply brief in support of the motionto strike Charles Edward Lincoln, Ill's ("Plaintiff') first claim for relief, maliciousprosecution, to the First Amended Complaint, pursuant to section 425.16 of theCalifornia Code of Civil Procedure.

Plaintiff's opposition has failed to demonstrate that the OSC in the FloridaAction was independent or an ancillary proceeding to support a claim for maliciousprosecution.

Accordingly, Plaintiff's first claim for relief - malicious prosecution ~ fails asa matter of law.

1. INTRODUCTIONDefendants seek to strike only Plaintiff's first claim for relief ~ malicious

prosecution. Defendants bring this motion because the alleged conduct arose fromtheir protected activity to petition the court during a legal proceeding. Plaintiff'sclaim for relief fails because Defendants' communication to the Florida court did notinitiate an independent proceeding. Rather, the Florida's court's sua sponte Order toShow Cause was a subsidiary proceeding. This subsidiary proceeding stemmed fromthe court's broad discretion to remedy any perceived abuse in the filing of courtdocuments. Here, the Florida court set an OSC to determine whether the Floridaplaintiffs or Dr. Taitz had filed any fraudulent pleading in the Florida Action. Underthe court's broad discretionary powers, the court could have awarded sanctions if itdetermined that any party had abused the court system during the pending litigation-the Florida Action. This type of subsidiary proceeding does not give rise to anindependent action to support a claim of malicious prosecution.

Further, Plaintiff has failed to meet his burden to demonstrate that Dr. Taitzacted with malice to show malicious prosecution. Accordingly, Plaintiff's first claimfor relief for malicious prosecution fails as a matter of law.4817 -9534-6952.1 -1-REPLY BRIEF IN SUPPORTOF THE ANTI-SLAP MOTION CASE NO. 8:10-CV-OI573-AG (PLAX)



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Accordingly, Defendants respectfully request that this Court grant their motionto strike Plaintiff's first claim for relief in his First Amended Complaint.

2. DEFENDANTS' CONDUCT NEVER INITIATED AN INDEPENDENTPROCEEDINGThe crux of Plaintiff's malicious prosecution claim centers on the premise that

Dr. Taitz "implicitly and/or expressly accused Lincoln of forging her signature andfraudulently filing the motion without her consent through a letter to the courtdated November 6th, 2009." (Opposition at 4:28-5:3.) (Emphasis added.) (See alsoFAC at 6:25-7:1. Defendants do not deny that Dr. Taitz sent a correspondence to theFlorida court. Dr. Taitz' reasons for doing so were clearly set forth in Defendants'moving papers. For purposes of Plaintiff's malicious prosecution, the inquiry beginsand ends with Dr. Taitz' November 6,2009 letter.

Dr. Taitz' November 6, 2009 letter informed Judge Dimitrouleas she did notfile the First Amended Motion to Substitute Counsel. Dr. Taitz' November 6, 2009correspondence further stated as follows:

"I have signed an initial substitute of counsel forMr. Lincoln to assist him in his real estate case in Idahoand Florida with the understanding that local counsel willbe retained by Mr. Lincoln in both states. As Mr. Lincolnfailed to retam local counsel in either Idaho or Florida, Ihave indicated to him that Ican't represent him. I have noidea who filed those subsequent motions as I do notrepresent plaintiffs in this case."Dr. Taitz' letter simply stated that she neither filed the Amended Motion nor did sheknow who filed the Amended Motion.

Around November 12,2009, Plaintiff's affidavit in support of the CombinedResponse indicated that "Dr, Taitz has since October 27,2009, taken steps towithdraw as my counsel." Subsequent to Plaintiff's affidavit, the Florida courtissued an Order to Show Cause re Sanctions. The order directed the Floridaplaintiffs and Dr. Taitz to show cause 110 later than November 27,2009, why4817-9534-6952.1 -2-REPLY BRIEF IN SUPPORTOF THE ANTI-SLAP MOTION CASE NO. 8:10-CY-01573-AG (PLAX)



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sanctions should not be imposed for filing fraudulent documents with the Court.Dr. Taitz' letter of November 6,2009 did not accuse Plaintiff of forgery. Further, theletter was not a complaint or the commencement of a legal proceeding. Only afterthe Florida court received Plaintiffs affidavit did the Florida court issue an OSC resanctions and begin, sua sponte, a sanction hearing. These facts do not support amalicious prosecution claim. All subsequent communications that Plaintiff orDr. Taitz made to the Florida court were pursuant to the Florida court's OSC. Again,when the court set an evidentiary hearing it stated the matter was before the courtsua sponte after receiving filings from both plaintiff Charles E. Lincoln, III andDr. Taitz relative to the First Amended Motion to Substitute Counsel.

Thus, the inquiry centers on whether Dr. Taitz" November 6, 2009correspondence to the Florida court initiated or commenced an independentproceeding against Plaintiff. The evidence is clear that Dr. Taitz' correspondencedid not initiate an independent proceeding. Instead, the OSC was merely asubsidiary proceeding to Florida Action after the Florida court received purportedpleadings from both Plaintiff and Dr. Taitz.

More importantly, the OSC hearing was pursuant to the district court'sinherent powers to sanction fraud or abuse of the judicial process. See AmstedIndustries Inc. v . Buckeye Steel Castings Co" 23 F.3d 374,377-78 (Fed. Cir. 1994).

3. THE FLORIDA COURT'S OSC RE SANCTIONS WAS NOT ANINDEPENDENT PROCEEDINGCalifornia courts have concluded that subsidiary procedural actions cannot

support a claim for malicious prosecution. Merlet, Merlet v. Rizzo, 64 Cal.AppAth53,59-60 (1998); see also Lossing v, Superior Court, 207 Cal.App.Jd 635 (1989),[An application for an order to show cause regarding contempt does not give rise to amalicious prosecution claim.]III481795346952.1 -3-REPLY BRIEF IN SUPPORTOF THE ANTISLAP MOTION CASE NO. 8:IOCV-01573AG (PLAX)



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Instead, malicious prosecution requires the initiation of a full-blown action.Adams v, Superior Court, 2 Cal.AppAth 521, 528 (1992). To permit grounding amalicious prosecution claim upon actions taken in a pending litigation would injecttort claims where the court's broad powers to control judicial proceedings exists. Id.California courts have long held that contempt hearings are not ancillary but insteadsubsidiary to the pending litigation. Lossing, 207 CaLApp.3d 638-39. In Lossing,the court ruled that the initiation of contempt proceedings for discovery abuses didnot give rise to a malicious prosecution claim. Id. The court stated that "[ijf thecontempt proceeding was a bad faith action brought without merit or for harassment,sanction are also available under Code of Civil Procedure section 128.5." Id. at 638.Thus, the California Legislature provided a mechanism for the court to remedyabuses. Allowing a malicious prosecution action would frustrate the intent of theLegislature to vest the courts with broad power to control proceedings. Id. at 639.

With respect to the OSC re sanction in the Florida Action, the Florida courtwas simply exercising its inherent powers to control proceedings before the court.The United States Supreme Court reaffirmed the federal judiciary's inherent power toimpose sanctions. See Chambers v.NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123,115 L. Ed. 2d 27 (1991). In Chambers, the district court imposed sanctions againstChambers in the form of attorney's fees and expenses. 111 S. Ct. 2123, 2130.Chambers drew this sanction for trying to deprive the court of jurisdiction by acts offraud outside the confines of the court, for filing false and frivolous pleadings, andfor using tactics of delay, oppression, harassment, and massive expense in an attemptto wear down the opposing party. Id. at 2131. Although the district court consideredsanctions under Fed. R. Civ. P. 11 and 28 U'SiC. 1927, it relied instead on itsinherent power to reach the entirety of Chambers' egregious conduct. Id.

The OSC in the Florida Action was a hearing to determine whether the courtshould impose sanctions for filing frivolous or fraudulent pleadings. If the Floridacourt had determined that either the Florida plaintiffs or Dr. Taitz had acted in bad4817-9534-6952.1 -4-REPLY BRIEF IN SUPPORTOF THE ANTI-SLAP MOTION CASE NO. 8:1O-CV-01573-AG (PLAX)



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S N I IT H U P

faith, sanction remedies were available to the court, pursuant to Chambers v.NASCO, Inc., 501 U.S. 32 (1991). Thus, following California precedent, the OSC resanctions in the Florida Action was not an independent proceedings but rather asubsidiary proceedings where the court exercised its broad discretion to controlproceedings before it.

Plaintiff has failed to demonstrate that Defendants initiated an independentproceeding or ancillary proceeding to support his claim for malicious prosecution.Accordingly, Plaintiffs first claim for relief fails as a matter of law. Therefore,Defendants respectfully request that this court grant their motion to strike the firstclaim for relied to the First Amended Complaint.

4. THE FLORIDA COURT RULED THAT DR. TAITZDID NOT ACT INBAD FAITHIn making its ruling on whether to impose sanctions, the Florida court heard

evidence and ruled that Dr. Taitz did not act in bad faith when she informed thedistrict court she did not file the Amended Motion. This finding of no bad faithsupports the contention that Plaintiff cannot present evidence of malice on the part ofDefendants. Because Defendants have met their initial anti-SLAPP burden, theburden shifts - to Plaintiff - to establish, "by competent and admissible evidence," areasonable probability that he will prevail on his malicious prosecution claim at trial.Macias v. Hartwell, 55 Ca1.AppAth 669, 675 (1997) (Emphasis added). Plaintiff"cannot rely on the allegations of the complaint, but must produce evidence thatwould be admissible at trial." HMS Capital, Inc. v.Lawyers Title Co.,118 Cal.AppAth 204,212 (2004). Plaintiffs oppositions presented nothing butallegations. There is no competent evidence that Defendants acted with malice.

Accordingly, Plaintiff's first claim for relieflacks merit. Therefore,Defendants respectfully request that this court grant their motion to strike the firstclaim for relied to the First Amended Complaint.4817-95346952.\ -5-REPLY BRIEF IN SUPPORTOF THE ANTI-SLAP MOTION CASE NO. 8:10-CV-01573-AG (PLAX)



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1 s. CALIFORNIA'S ANTI-SLAPP STATUTE IS CONSTITUTIONAL2 Plaintiff has argued that California's anti-SLAPP statute is not constitutional3 citing the dissent in Briggs v. Eden Council for Hope &Opportunity, 19 Ca1.4th4 1106,1119 (1999). However, Briggs found that statute to be constitutional. Further,5 Plaintiff glosses over Ninth Circuit authority whereby "[m]otions to strike a state law6 claim under California's anti-SLAPP statute may be brought in federal court.H7 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,1109 (9th Cir. 2003).8 It goes without saying that California's anti-SLAPP statute is constitutional.910 6.11

DR. TAITZ' NOVEMBER 6,2009 CORRESPONDENCE WAS MADEIN CONNECTION WITH THE FLORIDA ACTION

12 Under the anti-SLAPP statute, Defendants carry the initial burden to show that13 Plaintiff's malicious prosecution claim arises from an "act" made in connection with14 a public issue or an issue of public interest, in furtherance of Defendants' right of15 free speech under the United States or California Constitutions. Cal. Civ.Proc. Code16 425.16(b)(l). Dr. Taitz' November 6, 2009 correspondence was "made in17 connection with an issue under consideration or review by a ... judicial body, or any18 other official proceeding authorized by law." Cal. Civ.Proc. Code 425.16(e)(l)19 and (2).20 Under Section 425.15 subdivision (e)(l) and (2), "all communicative acts21 performed by attorneys as part of their representation of a client in a judicial22 proceeding or other petitioning context are per se protected as petitioning activity by23 the anti-SLAPP statute." Cabral v.Martins, 177 Cal.AppAth 471,480 (2009).24 In the court's order denying the Florida plaintiff's Amended Motion, the court25 concluded that Dr. Taitz had improperly filed the motion. In connection with the26 court's ruling, Dr. Taitz then informed the court that she neither filed the Amended27 Motion nor did she know who did. Her November 6, 2009 letter was clearly a28 communicative act under Section 425.15 subdivision (e)(l) and (2).

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S l lA I l H U P

1 Accordingly, Defendants have met their burden under the anti-SLAPP statute.2 Because Plaintiff has failed to show a reasonable probability he will prevail on his3 malicious prosecution claim, Defendants respectfully request that this court grant4 their motion to strike Plaintiff s first claim for relief in the First Amended Complaint.56 7.789

10111213 DATED: January 31,2011

CONCLUSIONBased on the foregoing, Defendants respectfully request that this Court grant

the motion to strike Plaintiff s first claim for malicious prosecution. In the event thisCourt grants Defendants motion, Defendants will move the court to seek theirattorney's fees.

Respectfully submitted,LEWIS BRISBOIS BISGAARD& SMITH LLP

By lsiWilliam E. PallaresWilliam E. PallaresAttorneys for Defendants LAW OFFICE OFORLYTAITZ and DR. ORLY TAITZ, ESQ.,D.D.S., J.D.

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S I II In H U P

12

SEE ATTACHED SERVICE LIST

FEDERAL COURT PROOF OF SERVICELincoln v. Daylight Chemical - File No. 50012-2327STATE OF CALIFORNIA, COUNTY OF LOS ANGELES3 At the time of service I was over 18 y-earsof age and not a party to the action.

4 My business address is 221 North Figueroa Street Suite 1200, Los Angeles,California 90012. I am employed in the office of a member of the bar of this Court5 at whose direction the service was made.6 On January 31t2011, I served the following document(s): NOTICE OFMOTION AND MO .ION OF DEFENDANTS LAW OFFICE OF ORLY TAITZ7 AND DR. ORLY TAITZ, ES8'1 D.D.S., J.D. TO STRIKE PLAINTIFF'S FIRSTCLAIM FOR RELIEF PURSANT TO SECTION 425.16 OF THE CALIFORNIA8 CODE OF CIVIL PROCEDURE910

I served the documents on the following persons at the following addresses(including fax numbers and e-mail addresses, ifapplicable):11 The documents were served by the following means:

[] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package13 addressed to the persons at the addresses listed above and I deposited thesealed envelope or package with the U.S. Postal Service, with the postage fully14 prepaid.15 [X] (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, I electronicallyfiled the documents with the Clerk of the Court using the CM/ECF system,which sent notification of that filing to the persons listed above.

I declare under penalty of perjury under the laws of the United States ofAmerica that the above is true and correct.

12

1617

Executed on January 31, 2011, at Los Angeles, California.

Laude A. Wood

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S l ' v l l I 1 i U P

123 Jonathan A. Ross, Esq.Arnold S. Levine, Esq.4 Mark 1.Melo, Esq.Bradley & Gmelich5 700 North Brand Boulevard, 10th FloorGlendale, CA 91203-14226 Tel: (818) 243-5200Fax: (818) 243-52667 Attorneys for Defendants DaylightChemical Information Systems,lnc.8 and Dr. YosefTaitz9

1 011121314

SERVICE LIST

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Dr. Orly Taitz, Esq.29839 Santa Margarita Parkway, #100Rancho Santa Margarita, CA 92688Tel: (949) 683-5411Fax: (9491.766-7603orly.tmtaz01wall.comAttorney. for efend OUf FreedomsFoundation;...Orly Taitz, Inc.,Appealing Dentistry

REPLY BRIEF IN SUPPORT CASE NO. 8: 1O-CY-O1 573-AG (PLAX)


lincoln v daylight chemical, et al. - 37 - reply in support of motion to strike - 031111666234.37.0

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