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Case Nos. 11-56079 and 11-56164 (Consolidated on February 3, 2012) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Lisa Liberi, et al.,

) ) Plaintiffs/Appellees, ) ) v. ) ) ) Orly Taitz, Defend Our Freedoms ) Foundations, Inc., et al., ) ) Defendants/Appellants. ) ) ) ________________________________ )

Appeal from the United States District Court for the Central District of California Civil Action No.: 8:11-CV-00485-AG (AJWx)

REPLY BRIEF BY APPELLANT, ORLY TAITZ (Submitted with Appellants Supplemental Excerpts of Record and Reply Brief by Appellant, Defend Our Freedoms Foundations, Inc., in Consolidated Appeals)

Kim Schumann, Esq., CSBN 170942 Jeffrey Cunningham, Esq., CSBN 151067 SCHUMANN, RALLO & ROSENBERG, LLP 3100 S. Bristol St., Suite 400 Costa Mesa, CA 92626 (714) 850-0210 - telephone (714) 850-0551 - fax Counsel for Defendant/Appellant, Orly Taitz

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TABLE OF CONTENTS SECTION I. II. PAGE NO.

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Appeal May Be Taken from the Order Denying Defendants Anti-SLAPP Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Order Denying Defendants Anti-SLAPP Motion to Strike is a Final, Appealable Order under California Code of Civil Procedure section 425.16 and Related Federal Law . . . . . . . . . . . . . . . . . . . 2

III.

As Determined in the District Courts Order, the Granting of Plaintiffs Motion for Leave to File Their First Amended Complaint is Independent From and Irrelevant to its Denial of Defendants Anti-SLAPP Motion . . . 5 A. Verizon Delaware, Inc. v. Covad Comms. Co., 377 F.3d 1081 (9th Cir. 2004) is Inapposite, and Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court . . . . . . . . 5 B. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) Is Inapposite, and Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court . . . . . . . . . . . . . . . . . . 7 C. Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (2010) Does Not Support Plaintiffs Argument, Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court, and Plaintiffs Admit That Greensprings Requires That Defendants Be Allowed to Challenge Their First Amended Complaint Via Anti-SLAPP Motion . . . . . . . . . . . . . . . 9

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IV.

The District Court, as a Matter of Law, Erred in Concluding that Defendants Did Not Meet Their Burden Under Section 425.16(b) to Show that Plaintiffs Complaint Arises Out of Defendants Acts in Furtherance of Their Rights of Petition or Free Speech in Connection with a Public Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Plaintiffs Have Represented to the District Court that this Case Presents Issues of Great Public Interest, Concerning the Birther Movement, and Related Rights of Petition and Free Speech in Furtherance of That Movement . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Defendants Met Their Burden Under section 425.16(b) Where Plaintiffs Complaint Clearly Arises Out of Defendants Alleged Acts in Furtherance of their Rights of Petition and Free Speech In Connection with Public Issues . . . . . . . . . . . . . . . . . . . . . . . 13 1. Plaintiffs - by their silence in their brief - admit that Defendants 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) . . . . . . . . . . . . 13 2. Plaintiffs - by their silence in their brief - admit that Defendants allegedly made written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law... as required by section 425.16(e)(2) . . . . . . . . . . 17

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3.

Plaintiffs - by their silence in their brief - admit that Defendants 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) . . . . . . . . . . . . . . . . . . . 18

4.

Plaintiffs - by their silence in their brief - admit that Defendants allegedly engaged in any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest as required by section 425.16(e)(4) . . . . . . . . . . . . . . . . . 21

5.

Plaintiffs argument that the Anti-SLAPP statute does not apply to invasion of privacy, defamation or similar claims is incorrect as a matter of law . . . . . . . . . . . . . . . . . . . . . 22

V.

Appellant, Orly Taitz, Incorporates By Reference Certain Portions of the Related Reply Brief of Appellant, Defend Our Freedoms Foundations, Inc., in These Consolidated Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

VI.

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TABLE OF AUTHORITIES Federal Cases Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 California Motor Transport Co. v. Trucking Unlimited (1972) 404 U.S. 508, 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Collins v. City of San Diego (9th Cir. 1988) 841 F.2d 337, 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 22 Greensprings Baptist Christian Fellowship Trust v. Cilley (2010) 629 F.3d 1064, 1067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9 Intl Union of Bricklayers & Allied Crafsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc. (9th Cir. 1985) 752 F.2d 1401, 1404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 10 Kline v. Johns-Manville (9th Cir. 1984)) 745 F.2d 1217, 1221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 10 Meehan v. County of Los Angeles (9th Cir. 1988) 856 F.2d 102, 106 n.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 21, 22 Mindys Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d 590, 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N.A.A.C.P. v. Button (1963) 371 U.S. 415, 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Troy Group, Inc. v. Tilson (2005) 364 F. Supp.2d 1149, 1153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 United States ex rel. Newsham v. Lockheed Missiles & Space Co. (9th Cir. 1999) 190 F.3d 963, 971, 973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Verizon Delaware, Inc. v. Covad Comms. Co. (9th Cir. 2004) 377 F.3d 1081, 1091 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Vess v. Ciba-Geigy Corp. USA (9th Cir. 2003) 317 F.3d 1097 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 State Cases Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15, 17, 23

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Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Kibbler v. N. Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196-198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Rivero v. AFL-CIO (2003) 105 Cal.App.4th 913, 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 236-238 . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15, 17, 23 Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Federal Statutes 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Rule of Civil Procedure 8 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Rule of Civil Procedure 8 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Rule of Civil Procedure 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Rule of Civil Procedure 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Rule of Civil Procedure 15(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State Statutes Code of Civil Procedure 425.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 25 Code of Civil Procedure 425.16(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Code of Civil Procedure 425.16(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Code of Civil Procedure 425.16(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Code of Civil Procedure 425.16(e) . . . . . . . . . . . . . . . . . . . 1,2, 15, 16, 18, 21, 22 Code of Civil Procedure 425.16(e)(1)-(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 Code of Civil Procedure 425.16(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Code of Civil Procedure 904.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 6 6 8 9 3

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I. Summary of Argument The order denying the anti-SLAPP motion by Defendants and Appellants, ORLY TAITZ (Taitz) and DEFEND OUR FREEDOMS FOUNDATIONS, INC. (DOFF) (collectively Defendants), under California Code of Civil Procedure section 425.16 (the anti-SLAPP statute) should be reversed. Defendants clearly met (and in fact exceeded) their burden under section 425.16(b)(1) to show that Plaintiffs' Complaint arises out of Defendants' alleged acts in furtherance of their rights of petition and free speech in connection with public issues. Defendants demonstrated protected activity coming within each subpart of section 425.16(e) describing "act[s] in furtherance of a person's right of petition or free speech...." Plaintiffs and Appellees herein are LISA LIBERI (Liberi), LISA OSTELLA (Ostella), PHILIP J. BERG, ESQ. (Berg, who is also Plaintiffs counsel), GO EXCEL GLOBAL and the LAW OFFICES OF PHILIP J. BERG (collectively Plaintiffs). The burden thus shifted to Plaintiffs to demonstrate a probability of prevailing on their Complaint. Section 425.16(b)(1). Plaintiffs failed to satisfy the two prongs of their burden: (1) to show that their Complaint is legally sufficient, and (2) to make a prima facie factual showing via competent and admissible evidence supporting each claim of the Complaint. Rosenaur v. Scherer, 88 Cal.App.4th 260, 274 (2001). Notably, Plaintiffs made a dispositive judicial admission that the Complaint was legally insufficient and, thus, that they could not meet their burden. Plaintiffs also failed to satisfy their burden to present competent and admissible evidence making the required factual showing.

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In their Answering Brief (AB), Plaintiffs admit by their silence that Defendants demonstrated protected activity coming within each subpart of section 425.16(e). Plaintiffs also fail to substantively address their burden under section 425.16(b), including their failure to demonstrate that their Complaint is legally sufficient. Rosenaur, supra, 88 Cal.App.4th at 274. Taitz thus respectfully submits that the District Court as a matter of law erred in misinterpreting and misapplying Defendants and Plaintiffs burdens under the anti-SLAPP statute and that its order should therefore be reversed. II. Appeal May Be Taken from the Order Denying Defendants Anti-SLAPP Motion A. The Order Denying Defendants Anti-SLAPP Motion to Strike is a Final, Appealable Order under California Code of Civil Procedure section 425.16 and Related Federal Law Plaintiffs erroneously argue that the District Courts order [Volume 1, Excerpts of Record (ER), pages 4-9] is not a final, appealable order. (AB, 1521.) As a matter of law, denial of an anti-SLAPP motion under California law is an appealable final decision within the meaning of 28 U.S.C. 1291. Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003). Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010). In California state courts, denial of an anti-SLAPP motion is immediately appealable. California Code of Civil Procedure 425.16(j) and 904.1. Batzel provides the controlling law in the Ninth Circuit:

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We are presented with the threshold question whether we have jurisdiction over Cremers's interlocutory appeal of the district court's denial of his motion to strike... The issue before us as a federal court is whether a district court's denial of an anti-SLAPP motion is an immediately appealable "final decision" under 28 U.S.C. 1291, so that we have jurisdiction to address Cremers' appeal. We conclude that we have jurisdiction to review the denial of an anti-SLAPP motion pursuant to the collateral order doctrine. Batzel, supra, 333 F.3d at 1024; emphasis added. Therefore, the denial of Defendants motion is regarded as the final word as to whether the anti-SLAPP statute applies herein. That the Court allowed Plaintiffs leave to file their First Amended Complaint (FAC) is irrelevant, and has no relation to, its denial of the anti-SLAPP motion. In fact, the Court subsequently denied Defendants request for leave to file an anti-SLAPP motion as to the FAC. [See, June 29, 2011 order denying Defendants request to file an anti-SLAPP motion as to the FAC; Defendants Supplemental Excerpts of Record (SER), 1-2.] In the words of Batzel and Gulfstream, the order appealed from is conclusive and the final word notwithstanding the filing of Plaintiffs FAC. Plaintiffs cite several cases for their argument that the order is somehow not a final, appealable order. They principally rely on Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (2010). (AB, 17-20.) Greensprings involved an appeal from an order under Fed. R. Civ. P. 15(a) granting leave to amend and thus does not support Plaintiffs position. In Greensprings, plaintiff sued defendant attorneys for malicious prosecution. The District Court granted the attorneys' anti-SLAPP motion to strike, but granted leave to amend under Fed. R. Civ. P. 15(a). Defendants appealed from the order granting leave to amend. There was no appeal from the order granting the anti-SLAPP motion.

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Plaintiffs misrepresent that Greensprings involved appeal from an order on an anti-SLAPP motion (it did not), and that the Court of Appeals found that there was no appellate jurisdiction on appeal from an order on an anti-SLAPP motion (it did not so hold). (AB, 18.) Plaintiffs do not cite to any portion of the Greensprings opinion, because the purported holding does not exist. Greensprings followed the law established in Batzel that an order denying an anti-SLAPP motion is immediately appealable: In Batzel v. Smith, however, this court answered the related question of whether the denial of an anti-SLAPP motion to strike is immediately appealable as a collateral order. 333 F.3d 1018 (9th Cir. 2003). In Batzel, we found that all three conditions for collateral appeal were satisfied because the denial of an anti-SLAPP motion (1) is "conclusive as to whether the anti-SLAPP statute required dismissal of Batzel's suit"; (2) "resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff's claim will succeed"; and (3) forces a defendant "to incur the cost of a lawsuit before having his or her right to free speech vindicated." Id. at 1025. Accordingly, we held that we possessed jurisdiction. Greensprings, supra, 629 F.3d at 1067; emphasis added. The Court of Appeals held: we have continued to rely upon Batzel for the proposition that we have jurisdiction over appeals of denials of motions to strike under California's anti-SLAPP statute. Greensprings, supra, 629 F.3d at 1067; emphasis added. Thus, as a matter of law under Batzel and Greensprings, the order is appealable.

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III. As Determined in the District Courts Order, the Granting of Plaintiffs Motion for Leave to File Their First Amended Complaint is Independent From and Irrelevant to its Denial of Defendants Anti-SLAPP Motion A. Verizon Delaware, Inc. v. Covad Comms. Co., 377 F.3d 1081 (9th Cir. 2004) is Inapposite, and Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court Plaintiffs argue that they had the right to amend their Complaint, even though an anti-SLAPP motion was pending. (AB, 16.) Plaintiffs cite Verizon Delaware, Inc. v. Covad Comms. Co., 377 F.3d 1081 (9th Cir. 2004) for this argument. (AB, 16.) Plaintiffs did not raise this argument, nor cite to Verizon in the Court below. [1 ER, 107-154.] Thus, Plaintiffs are barred from raising this new argument for the first time in this appeal. Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). Kline v. Johns-Manville, 745 F.2d 1217, 1221 (9th Cir. 1984). The Court, also, did not rule that Plaintiffs motion had any effect on, or provided a basis for opposition to, the anti-SLAPP motion. Although the Court in its tentative ruling on Defendants motion was prepared to deem it moot, in light of Plaintiffs motion, its final ruling provides the opposite; the Court explicitly applied both prongs of the anti-SLAPP statute to the Complaint to deny said motion on its merits. [1 ER, 4-9 and 25-29.] The Court did not find Defendants motion to be premature in any respect, including under Verizon. Plaintiffs acknowledge their argument relying on Verizon is premised on the Courts tentative ruling:

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The District Court issued its tentative ruling granting Appellees (sic) Leave to Amend their Complaint; Denying Appellants (sic) Motion to Strike and Motion to Dismiss; and placed filing restrictions on the parties. The Court found that Appellants (sic) Motions were premature in light of Appellees filing their PFAC. (AB, 15; emphasis added.) Thus, based on the Courts final order, its denial of the anti-SLAPP motion was completely independent from and irrelevant to its granting of Plaintiffs motion for leave to file the FAC. Moreover, Verizon does not apply to the denial on the merits of Defendants motion. Verizon did not address denial of an anti-SLAPP motion, but instead granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend.... Verizon, supra, 377 F.3d at 1091. Verizon anticipates that plaintiff in response to an anti-SLAPP motion will improve his or her claims in an amended complaint, and concomitantly, guarantees defendants due process rights to challenge the amended complaint via antiSLAPP motion: Moreover, the purpose of the anti-SLAPP statute, the early dismissal of meritless claims, would still be served if plaintiffs eliminated the offending claims from their original complaint. If the offending claims remain in the first amended complaint, the anti-SLAPP remedies remain available to defendants. Ibid.; emphasis added. Plaintiffs have submitted their FAC (consisting of 203 pages), with its exhibits (consisting of more than 1,000 pages), with their Supplemental Excerpts of Record. The FAC and its voluminous exhibits exceed 1,200 pages. The FAC is not a short and plain statement of the grounds for the court's jurisdiction [or]... a short and plain statement of the claim showing that the pleader is entitled to relief.... as required by Fed. R. Civ. P. 8(a)(1) and (2). The FAC is not an improvement over the Complaint, in form or substance; the FAC is less legally
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sufficient than the Complaint, admitted by Plaintiffs to have been legally insufficient. In the words of Verizon, the offending claims remain in the first amended complaint.... Ibid. All defenses under the anti-SLAPP statute remain, and apply with equal or greater force, as to Plaintiffs FAC. Thus, if Verizon applies herein (and it does not), as a matter of law and as required by due process the anti-SLAPP remedies remain available to defendants. Ibid. If Verizon applies herein (and it does not), it would require the Court below to allow Defendants to challenge the FAC via anti-SLAPP motion. If Verizon applies herein, it is clear that the Court violated Defendants due process rights under Verizon to bring an anti-SLAPP motion to the FAC and, should the order be affirmed, the Court should be instructed to allow Defendants to bring an antiSLAPP motion challenging the FAC. B. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) is Inapposite, and Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court Plaintiffs cite to Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) for the argument: As Vess implicitly suggests, granting a Defendants AntiSLAPP motion to strike a Plaintiffs initial complaint without granting the Plaintiff leave to amend would directly collide with Fed. R. Civ. P. 15(a)s policy favoring liberal amendment. (AB, 17.) Plaintiffs did not raise this argument nor cite to Vess in the Court below. [1 ER, 107-154.] Thus, Plaintiffs are barred from raising this new argument. Int'l Union of Bricklayers, supra, 752 F.2d at 1404. Kline, supra, 745 F.2d at 1221. Plaintiffs admit that the Vess court was not specifically considering the propriety of allowing a plaintiff to amend its complaint before ruling on an Anti-7-

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SLAPP motion.... (AB, 16; emphasis in original.) However, Plaintiffs argue that the posture of that case is similar to the present case. (AB, 16.) Plaintiffs misrepresent the posture presented in Vess. In Vess, three defendants moved to dismiss plaintiffs initial complaint under Fed. R. Civ. P. 9, as well as under California's anti-SLAPP statute. Without ruling on the motions, the District Court granted plaintiff leave to file a first amended complaint. Defendants then renewed their motions as to the first amended complaint, including under the anti-SLAPP statute. The District Court granted without prejudice all defendants' Rule 9 motions to dismiss the amended complaint. Plaintiff then declined to amend his complaint. The District Court dismissed all defendants with prejudice under Rule 9, and granted their antiSLAPP motions to strike. Plaintiff appealed. The Court of Appeals reversed in part, and affirmed in part, including to affirm the dismissal of two defendants on their anti-SLAPP motions in light of the statutory directive that the statute be "construed broadly." (Section 425.16(a).) Vess, supra, 317 F.3d at 1110. Thus, Vess did not consider the propriety of allowing a plaintiff to amend its complaint in connection with ruling on an Anti-SLAPP motion. The anti-SLAPP motion in Vess was granted well after plaintiff was allowed leave to file an amended complaint; the decision on the anti-SLAPP motion was therefore independent from and irrelevant to plaintiff being allowed leave to file an amended complaint. In this sense, Plaintiffs argument that the posture of that case [Vess] is similar to the present case is correct - here (as in Vess) denial of Defendants antiSLAPP motion had nothing to do with Plaintiffs being allowed to file their FAC. Therefore, if Vess applies herein, it would require reversal of the Courts order.
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Vess stands for the further proposition that if an anti-SLAPP motion may be deemed moot vis a vis a pending Fed. R. Civ. P. 15 motion, and an amended complaint is then filed, that defendants due process rights under Vess and Verizon require that it be allowed to challenge the amended complaint via anti-SLAPP motion. By application of Vess and Verizon, the Court was required to allow Defendants to challenge the FAC via anti-SLAPP motion. The Court violated Defendants due process rights under Vess and Verizon to bring an anti-SLAPP motion challenging the FAC and, should the order be affirmed, the Court should be instructed to allow Defendants to bring an anti-SLAPP motion challenging the FAC. C. Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (9th Cir. 2010) Does Not Support Plaintiffs Argument, Plaintiffs in Citing it Attempt to Raise a New Argument Not Raised in the District Court, and Plaintiffs Admit That Greensprings Requires That Defendants Be Allowed to Challenge Their First Amended Complaint Via Anti-SLAPP Motion Plaintiffs argue that Greensprings supports the Courts denial of Defendants anti-SLAPP motion by treating it as moot in connection with Plaintiffs motion for leave to file their FAC. (AB, 42.) For the reasons explained above - namely that Greensprings did not arise out of an appeal from an order on anti-SLAPP motion - that case does not support Plaintiffs argument. As with Plaintiffs reliance on Verizon and Vess, they did not raise this argument in opposition to Defendants anti-SLAPP motion and did not cite to Greensprings below. [See, 1 ER, 107-154.] Thus, Plaintiffs are barred from raising

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this new argument for the first time herein. Int'l Union of Bricklayers, supra, 752 F.2d at 1404. Kline, supra, 745 F.2d at 1221. Moreover, Plaintiffs in relying on Greensprings admit that a Court allowing amendment in the face of an anti-SLAPP motion is required to allow defendant to challenge the amended pleading via an anti-SLAPP motion: The Ninth Circuit [in Greensprings] held that the Order granting leave to amend, allowing the Plaintiff to plead additional facts, was in essence the District Court indicating that it would revisit the impact of the Anti-SLAPP statute in light of the amendment. (AB, 20; emphasis added.) Plaintiffs thus admit that Greensprings (as well as Verizon and Vess) require a Court granting leave to amend must allow defendant to revisit the impact of the Anti-SLAPP statute in light of the amendment. Therefore, as agreed by Plaintiffs, should the order be affirmed, the Court should be instructed to allow Defendants to bring an anti-SLAPP motion challenging the FAC. IV. The District Court, as a Matter of Law, Erred in Concluding that Defendants Did Not Meet Their Burden Under Section 425.16(b) to Show that Plaintiffs Complaint Arises Out of Defendants Acts in Furtherance of Their Rights of Petition or Free Speech in Connection with a Public Issue A. Plaintiffs Have Represented to the District Court that this Case Presents Issues of Great Public Interest, Concerning the Birther Movement, and Related Rights of Petition and Free Speech in Furtherance of that Movement The bulk of Plaintiffs AB is devoted to distancing themselves from the political dissident movement, including a component known as the Birther Movement, by those challenging the qualifications of President Barack Obama.
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As demonstrated in Defendants briefs, Taitz is a political dissent leader who, individually and through DOFF, has been and remains the leader of this movement. As the Honorable Eduardo C. Robreno, Judge succinctly summarized Plaintiffs and Defendants history in his December 23, 2010 Memorandum: In sum, Plaintiffs and Defendants are part of the birther movement, which is comprised of individuals who believe that President Obama is ineligible to be President of the United States because he was born in Kenya. At one time, Plaintiffs and Defendants worked together to attempt to prove President Obamas illegitimacy but infighting among them led to this lawsuit. [1 ER, 238.] Despite Plaintiffs attempt to portray this case as not about any political issue (AB, 31), in fact, per Plaintiffs, it is squarely concerned with control over the Birther Movement. In this regard, Plaintiffs at an August 2009 hearing before Judge Robreno represented the following: THE COURT: Okay. See, what Im trying to understand is other than this individual infighting, whether there is a difference between the simple Taitz position, or the defendants position, and the plaintiffs position on the issue of the Obama presidency? In other words, whether all this involves a disagreement on a substantive issue, or all of this infighting seems to obscure the basis purpose of which all of you are involved in. MR. BERG: Well, it appears, Your Honor, supposedly were on both the same course. THE COURT: Right. MR. BERG: However, and theres been - and, if I can supply them to the Court later and copies to counsel by letter or memorandum, in the past few days theres been several articles written, independent of me, which basically brings out what Ive said for months, that Orly Taitz if in here really to undermine everything - and her goal was she set out months ago to bring me down, which makes no
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sense, because I have three pending lawsuits in Federal Court, and it doesnt make sense. But, now other people are writing it looks like shes really working either directly for Obama, or people related there, even though shes supposedly working against it by all of her wild actions. I call her, and Ive quoted her in the paper, as a loose cannon, but her actions, Your Honor, are detrimental to this cause, and even theyve had her on TV in the past few days, and she makes a fool of herself, because she doesnt really know what shes talking about. Therefore, I think it makes sense that shes trying to bring us down. By bringing us down, it would close out the whole effort. So, I think thats what it is. THE COURT: Okay, I follow that, okay. [SER, 60-61; emphasis added.]

Therefore, according to Plaintiffs, this case is really about their efforts to purge the Birther Movement of Taitz whom they portray as a type of double-agent or saboteur working either directly for Obama, or people related there and a detriment to this cause. Per Plaintiffs, Taitz is seeking to close out the whole effort (i.e., the Birther Movement). In reality, of course, Taitz is not seeking to destroy the Birther Movement. She is protecting its integrity and advancing its goals by, among other things, acting as a whistleblower against Plaintiffs to resist their efforts to corrupt and usurp control of this political movement. Therefore, per Plaintiffs, this case is directly about a political issue of the greatest importance - the rights of political dissidents such as Taitz to exercise their free speech rights and petition for redress of grievances without fear of being sued because of such activities.

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B.

Defendants Met their Burden Under Section 425.16(b) Where Plaintiffs Complaint Clearly Arises Out of Defendants Alleged Acts in Furtherance of their Rights of Petition and Free Speech in Connection with Public Issues 1. Plaintiffs - by their silence in their brief - admit that Defendants 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)

An action may be a SLAPP suit under subparts (1) and (2) of section 425.16(e) without any separate demonstration by defendant that its speech or petition concerned an issue of public significance. Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1113 (1999). Sipple v. Foundation for Nat. Progress, 71 Cal.App.4th 226, 236-237 (1999). Plaintiffs argue: In order to prevail on an Anti-SLAPP motion, the Defendant is required to make a prima facie showing that the Plaintiffs (sic) suit arises from an act by the Defendant made in connection with a public issue in furtherance of the Defendants right to free speech under the United States or California Constitution. (AB, 38; emphasis added.) Plaintiffs are plainly wrong as to section 425.16(e)(1) and (2), which do not require a separate demonstration by defendant that its speech or petition concerned an issue of public significance. Briggs, supra, 19 Cal.4th at 1113. Sipple, supra, 71 Cal.App.4th at 236-237. Plaintiffs cite United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 971 (9th Cir. 1999) for their erroneous argument. (AB, 38.) In Newsham, qui tam plaintiffs brought an anti-SLAPP motion against counterclaims.

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The District Court refused to apply the anti-SLAPP statute on the grounds that it was unavailable to qui tam plaintiffs. The Court of Appeals reversed, holding that qui tam plaintiffs could seek that relief: Only two aspects of California's Anti-SLAPP statute are at issue: the special motion to strike, Cal. Civ. P. Code 425.16(b), and the availability of fees and costs, Cal. Civ. P. Code 425.16(c). *** For these reasons, we hold that the district court erred in finding that subsections (b) and (c) of California's Anti-SLAPP statute could not be applied to LMSC's counterclaims. Because the district court concluded that the Anti-SLAPP statute was inapplicable, it did not rule on the relators' motion to strike, nor on their motion for fees and costs. We remand to the district court so that it may rule on these issues. Newsham, supra, 190 F.3d at 971, 973.

There is no discussion in Newsham of the requirements of section 425.16(e)(1)-(4). It thus cannot be determined under what subparts of section 425.16 qui tam plaintiffs proceeded. Newsham does not support Plaintiffs argument which, in any event, is clearly incorrect as to section 425.16(e)(1) and (2). Briggs, supra, 19 Cal.4th at 1113. Sipple, supra, 71 Cal.App.4th at 236-237. Defendants clearly met their burden to demonstrate statements 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 Complaint recites a litany of such statements including 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 also allegedly contacted Liberis probation officer in New Mexico, and the

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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 Defendants websites and diversion of donations. [1 ER, 268 and 275-279.] Defendants alleged statements were thus unquestionably made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.... as required by section 425.16(e)(1) and thus per se protected activity under the anti-SLAPP statute. Defendants alleged statements were also exercises of their constitutional right to petition which includes the basic act of filing litigation or otherwise seeking administrative action." Briggs, supra, 19 Cal.4th at 1115. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Plaintiffs AB is devoid of any citation to or discussion of section 425.16(e)(1). Plaintiffs fail to cite or discuss, much less attempt to distinguish, any of the controlling decisional law under section 425.16(e)(1) cited and discussed in Defendants briefs. (This includes but is not limited to the controlling cases Sipple, and Kibler v. N. Inyo County Local Hospital Dist., 39 Cal.4th 192, 196-198 (2006).) In fact, there are a mere three references in the AB to section 425.16(e), none of which discuss the requirements of its subparts (1) - (4). These references provide: 1. The District Court properly found that Defendants-Appellants failed to make a prima facie showing that the acts Plaintiffs-Appellees

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complained of fall into any of the four [4] categories outlined in CCP 425.16(e). (AB, 2.) 2. The District Court denied the Anti-SLAPP Motion finding Taitz and DOFF did not meet their burden under Cal. Civ. Code 425.16(e), failing to make a prima facie showing that the acts complained of fall into any of the four categories of 425.16(e). (AB, 15-16; emphasis in original.) 3. See also 425.16(e) (defining act in furtherance of a persons right of... free speech.). (AB, 38.) Plaintiffs paltry three references to section 425.16(e) (including to a nonexistent California Civil Code section) are superficial, without analysis of the requirements of its subparts (1) - (4). Plaintiffs thus admit by their silence that Defendants met their burden under section 425.16(e)(1). Arguments or issues that are not supported by pertinent legal argument or proper citation of authority are waived. Meehan v. County of Los Angeles, 856 F.2d 102, 106 n.1 (9th Cir. 1988). Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988). Plaintiffs fail to address the requirements of section 425.16(e)(1). Therefore, Plaintiffs have waived any argument that Defendants alleged statements do not come within section 425.16(e)(1). Defendants have met their burden to show statements protected under section 425.16(e)(1). Thus, the District Courts conclusion that Defendants 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 section 425.16(e)(1). [1 ER, 8.]

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2.

Plaintiffs - by their silence in their brief - admit that Defendants allegedly made written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.... as required by section 425.16(e)(2)

The requirements of section 425.16(e)(2) are construed broadly. Kibler, supra, 39 Cal.4th at 198. As with a SLAPP suit under section 425.16(e)(1), subpart (2) does not require any separate demonstration by defendant that its speech or petition concerned an issue of public significance. Briggs, supra, 19 Cal.4th at 1113. Sipple, supra, 71 Cal.App.4th at 236-237. Defendants clearly met their burden to demonstrate 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.... as required by section 425.16(e)(2). Plaintiffs Complaint recites a litany of such statements listed above with regard to section 425.16(e)(1). Taitzs alleged statements, including to several Governmental Law Enforcement Agencies, is the very definition of statements within section 425.16(e)(2). [1 ER, 262, 268, 272 and 275-279.] Plaintiffs fail to discuss section 425.16(e)(2). (See, AB, 2, 15-16 and 38, discussed above.) Plaintiffs fail to cite or discuss, much less attempt to distinguish, any of the controlling decisional law under section 425.16(e)(2) cited and discussed by Defendants. (This includes but is not limited to the controlling cases Sipple and Kibler.)

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Therefore, Plaintiffs have waived any argument that Defendants alleged statements do not come section 425.16(e)(2). Meehan, supra, 856 F.2d at 106 n.1. Collins, supra, 841 F.2d at 339. Defendants have met their burden to show statements protected under section 425.16(e)(2). Thus, the District Courts conclusion that Defendants 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 section 425.16(e)(2). [1 ER, 8.] 3. Plaintiffs - by their silence in their brief - admit that Defendants 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) Web sites where the public may read views and information posted, and post their own opinions, as a matter of law are a public forum for purposes of section 425.16(e)(3). Ampex Corp. v. Cargle, 128 Cal.App.4th 1569, 1576 (2005).

The term public forum includes forms of public communication other than those occurring in a physical setting. Thus the electronic communication media may constitute public forums. Web sites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum for purposes of section 425.16. (ComputerXpress, Inc. v. Jackson, supra, at p. 1007.) Thus the Yahoo! message board maintained for Ampex was a public forum. (Ampex, supra, 128 Cal.App.4th at 1576; emphasis added.) Ninth Circuit cases interpret public forum under section 425.16(e)(3) to include websites. (See, Troy Group, Inc. v. Tilson, 364 F.Supp.2d 1149, 1153 (2005).) Thus, Defendants met their burden under section 425.16(e)(3) on its public forum component.
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Defendants alleged statements were made in connection with an issue of public interest.... as required by section 425.16(e)(3). This language is interpreted broadly. Annette F. v. Sharon S., 119 Cal.App.4th 1146, 1160 (2004). 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 v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 479 (2000). Defendants 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. Defendants clearly met their burden to demonstrate statements and writings 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 Complaint recites numerous such statements and writings including that Taitz engaged in whistleblowing via publishing statements on various websites and internet blogs reporting that Plaintiffs interfered with Appellants websites and internet blogs, created misleading websites and diverted donations from DOFF to entities controlled by Plaintiffs. [1 ER, 264.] Plaintiffs also allege that Taitz published statements on various websites and blogs regarding the criminal record of Liberi. [1 ER, 268.] Defendants alleged statements were squarely 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) and thus per se protected activity.
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Defendants alleged statements were also exercises of their constitutional right to free speech, including political speech in furtherance of the Birther Movement challenging the qualifications of President Obama. N.A.A.C.P. v. Button, 371 U.S. 415, 445 (1963). This case directly implicates control over that movement, particularly as to crucial fund-raising 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 section 425.16(e)(3). Plaintiffs fail to discuss section 425.16(e)(3). (See, AB, 2, 15-16 and 38, discussed above.) Plaintiffs fail to cite or discuss, much less attempt to distinguish, any of the controlling decisional law under section 425.16(e)(3) discussed by Defendants. (This includes but is not limited to the controlling cases Ampex, Troy Group, Annette F., Damon and Rivero v. AFL-CIO, 105 Cal.App.4th 913, 923 (2003).) Compounding Plaintiffs admissions are their numerous references to Taitzs and DOFFs alleged statements and writings within section 425.16(e)(3) including but not limited to the following: Taitz through DOFF repeatedly published on her website, on the Internet, repeatedly mass emailed to millions of individuals and businesses, posted on Social Network sites, Tweeted it, posted it as a reporter on Before Its News.... Taitz publicized... repeatedly on the internet, through mass emailing to millions of individuals and businesses, through RSS feeds, posting it on Social Network sites, discussing it on radio, TV interviews, YouTube videos, in articles, etc.... (AB, 5-6.) Making statements and writings on the Internet, mass email to millions of individuals, posting on social network websites, acting as a reporter on Before Its News and discussing it on radio, TV interviews are the very essence of

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statements made in a place open to the public or a public forum in connection with an issue of public interest.... under section 425.16(e)(3). Plaintiffs fail to address section 425.16(e)(3). Therefore, Plaintiffs have waived any argument that Defendants alleged statements do not come section 425.16(e)(3). Meehan, supra, 856 F.2d at 106 n.1. Collins, supra, 841 F.2d at 339. Defendants have met their burden to show statements protected under section 425.16(e)(3). Thus, the District Courts conclusion that Defendants 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 section 425.16(e)(3). [1 ER, 8.] 4. Plaintiffs - by their silence in their brief - admit that Defendants allegedly engaged in any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest as required by section 425.16(e)(4) Defendants alleged statements qualify as conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest under section 425.16(e)(4) for the same reasons, explained above, that they are protected activity per se under section 425.16(e)(3). The meaning and application of public interest under section 425.16(e)(4) is the same as that under section 425.16(e)(3). Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219, 1233 (2003).

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Plaintiffs fail to discuss section 425.16(e)(4). (See, AB, 2, 15-16 and 38, discussed above.) Plaintiffs fail to cite or discuss, much less attempt to distinguish, any of the controlling decisional law under section 425.16(e)(4) cited and discussed by Defendants, including but not limited to Tuchscher. Therefore, Plaintiffs have waived any argument that Defendants alleged statements do not come section 425.16(e)(4). Meehan, supra, 856 F.2d at 106 n.1. Collins, supra, 841 F.2d at 339. Defendants have met their burden to show statements protected under section 425.16(e)(4). Thus, the District Courts conclusion that Defendants 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 section 425.16(e)(4). [1 ER, 8.] 5. Plaintiffs argument that the anti-SLAPP statute does not apply to invasion of privacy, defamation or similar claims is incorrect as a matter of law Plaintiffs only argument regarding whether Defendants alleged statements come within the anti-SLAPP statute provides: A Motion filed to Dismiss a Case under the Anti-SLAPP statute will not prevail in actions filed as a result of Invasion of Privacy, Defamation, violations of the Information Practices Act, California Civil Code... 1798, et seq., Harassment, Stalking, and similar causes, nor should they.... Likewise, false allegations, accusations, invasion of privacy, violations of the privacy laws are not Free Speech protected by the First Amendment of the United States Constitution. As explained in Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), libelous speech is not protected by the United States Constitution.... (AB, 1-2; emphasis in original.) Plaintiffs argument is grossly superficial and simply wrong. It is completely lacking in any legal analysis relevant to anti-SLAPP motion, including
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(crucially) whether Defendants alleged statements come within any of the four defined categories of statements and writings set out in section 425.16(e)(1)-(4). The essence of Plaintiffs argument is that, simply because they allege Defendants engaged in defamation and other illegal behaviors and actions, this somehow immunizes their Complaint from challenge via anti-SLAPP motion. This argument, on its face and as a matter of law, is erroneous. Plaintiffs also cite no case law supporting their position (because there is none). Two seminal anti-SLAPP cases - Briggs and Sipple - illustrate why Plaintiffs are wrong. In Briggs, Plaintiffs sought damages for defamation, intentional and negligent infliction of emotional distress, and harassment. Briggs, supra, 19 Cal.4th at 1109. Plaintiff (as required) alleged that the defamatory speech was false. The California Supreme Court found that the lower Court properly granted defendants anti-SLAPP motion where the alleged conduct came within section 425.16(e)(1) and (2). Id. at 1117. In Sipple, plaintiff sought damages for libel, intentional interference with contract and intentional interference with prospective economic advantage. Sipple, supra, 71 Cal.App.4th at 231. As in Briggs, plaintiff in Sipple necessarily alleged that the defamatory speech was false. The Court of Appeal concluded the allegedly false statement made in the context of a separate lawsuit clearly comes within section 425.16, subdivision (e)(1) as it is . . . a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law... and respondents need not separately show that these statements concern an issue of public interest." Id. at 237-238. Therefore, as a matter of law, that alleged statements are false is irrelevant to the application of the anti-SLAPP statute.

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Likewise, Plaintiffs reliance on Beauharnais is misplaced. It is obviously not an anti-SLAPP case, having been published forty years before Californias anti-SLAPP statute was enacted in 1992. Whether allegedly libelous or otherwise false speech is regarded as free speech under the First Amendment to the U.S. Constitution is irrelevant to whether alleged statements, including allegedly false statements, come within the anti-SLAPP statute. The only relevant inquiry is whether Defendants alleged statements come within any of the four defined categories of statements and writings set out in section 425.16(e)(1)-(4). If Plaintiffs argument was correct (and it is not), then every anti-SLAPP motion would be immediately defeated by a plaintiffs contention that alleged statements are false or otherwise illegal behaviors and actions. That simply is not, and cannot be, the law. The applicable legal standards, having nothing to do with whether the alleged statements are false or otherwise wrongful, are set out in section 425.16(e)(1)-(4). Where Plaintiffs AB is devoid of any citation to or discussion of section 425.16(e)(1)-(4), they admit by their silence that Defendants met their burden to show statements protected by the anti-SLAPP statute. V. Appellant, Orly Taitz, Incorporates By Reference Certain Portions of the Related Reply Brief of Appellant, Defend Our Freedoms Foundations, Inc., in These Consolidated Appeals The appeals by Taitz and DOFF from the District Courts order denying their joint anti-SLAPP motion have been consolidated. Accordingly, for the sake of efficiency and convenience of the Court of Appeals, Taitz incorporates herein by this reference as though fully set forth the following portions of DOFFs reply brief:
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DOFFs Section II. The District Court, as a Matter of Law, Erred in Concluding that Plaintiffs Met Their Burden Under California Code of Civil Procedure Section 425.16(b)(1) to Demonstrate a Probability of Prevailing as Against Appellants; and DOFFs Section III. Contrary to Plaintiffs Unsupported Contentions, Defendants Opening Briefs Are Not Based on New Arguments, New Statements, and New Defenses, Nor Do the Opening Briefs Contain Improper Citations to the Record. VI. Conclusion For the reasons stated herein and in Defendants opening briefs, the District Court, as a matter of law, erred in denying their anti-SLAPP motion to strike under California Code of Civil Procedure section 425.16. Taitz thus respectfully submits that the order denying that motion should be reversed and an order granting said motion be entered. Alternatively, if said order is affirmed, Taitz pursuant to Verizon, Vess and Greensprings respectfully requests that the Court should be instructed to allow Defendants to bring an anti-SLAPP motion challenging the FAC.

Dated: April 19, 2012

By: /s/ - Jeffrey P. Cunningham, Esq Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Attorneys for Appellant, ORLY TAITZ

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CERTIFICATE OF COMPLIANCE

This brief contains 6,775 words, excluding the parts of the brief exempted by Fed. R. App. P. Rule 32(a)(7)(B)(iii).

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

Dated: April 19, 2012

By: /s/ - Jeffrey P. Cunningham, Esq. Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Attorneys for Appellant, ORLY TAITZ

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