Liberi V Taitz Appellees Opposition-Objections To DOFF's RJN Doc 45-1

Case Numbers: 11-56079 and 11-56164
(Consolidated February 3, 2012)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________
LISA LIBERI, et al,
Plaintiffs/Appellees
vs.
ORLY TAITZ, DEFEND OUR
FREEDOMS FOUNDATIONS, INC., et al,
Defendants/Appellants

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On Appeal from the United States District Court,
Central District of California, Southern Division
Case No. 8:11-cv-00485
Honorable Andrew Guilford
APPELLEES OPPOSITION/OBJECTIONS TO DEFEND OUR
FREEDOMS FOUNDATIONS, INC. REQUEST FOR JUDICIAL NOTICE
AND THE THREE [3] EXHIBITS ATACHED THERETO
Philip J. Berg, Esquire (PA Bar No. 09867)
Law Offices of Philip J. Berg
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
Ph: (610) 825-3134
Attorney for Appellees Lisa Liberi, Lisa
Ostella, Go Excel Global, Philip J. Berg,
Esquire and the Law Offices of Philip J.
Berg
Case: 11-56164 05/04/2012 ID: 8164969 DktEntry: 45-1 Page: 1 of 22
i
TABLE OF CONTENTS
Pages
TABLE OF CONTENTS.......i
TABLE OF AUTHORITIES....ii-vi
I. STATEMENT OF FACTS..1-4
III. ARGUMENT.4-15
I. ARGUMENTS and EVIDENCE PRESENTED
for the FIRST TIME in a REPLY BRIEF are
WAIVED and MUST be STRICKEN...4-5
II. APPELLATE COURTS ONLY CONSIDER the
RECORD BEFORE the DISTRICT COURT
on APPEAL ......................................................5-8
III. THE DOCUMENTS DOFF is REQUESTING
JUDICIAL NOTICE of are not SUBJECT to
i. DOFFs Exhibit 1, DN 47-2 to their RJN
filed April 30, 2012...9-11
ii. DOFFs Exhibits 2, DN 47-3 and
IV. ORLY TAITZ, ESQUIRE MUST BE
SANCTIONED and APPELLEES AWARDED
ATTORNEY FEES and COSTS...13-15
V.
CONCLUSION...15
JUDICIAL NOTICE ...8-13
3, DN 47-4 to their RJN filed April 30, 2012..11-13
ii
TABLE OF AUTHORITIES
Cases Page(s)
B.K.B. v. Maui Police Dept.,
276 F.3d 1091, 1107-08 (9
th
Cir. 2002).14, 15
Barnett, et al v. Obama, et al, U.S.D.C., Central District of CA,
Southern Div., Case No. 09-cv-00082 DOC.3
Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985)..5
Carmen v. San Francisco Unified Sch. Dist.,
237 F.3d 1026, 1030 (9th Cir. 2001).8
Cedano-Viera v. Ashcroft,
324 F.3d 1062, 1066 n.5 (9th Cir. 2003)...4
Chambers v. Nasco, Inc., 501 U.S. 32, 45-50 (1991)13, 15
Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu,
2006 U.S. App. LEXIS 16837;
455 F.3d 910 (9
th
Cir. July 6, 2006)...7
Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010).10, 12
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990)...5
Estate of Blas, 792 F.2d 858, 860 (9th Cir. 1986)...14
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)5
Henderson v. State of Oregon,
203 F. Appx 45, 52-53 (9
th
Cir. 2006)..9
In re BioLase Tech. Sec. Litig.,
No. 04-947 DOC (C.D. Cal. Jan. 27, 2003)..8
Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001)....14
iii
TABLE OF AUTHORITIES - Continued
Cases Page(s)
In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9
th
Cir. 2009)..14
th
Kirshner v. Uniden Corp. Of America,
th
Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)..4
Lentini v. Cal. Ctr. for the Arts,
370 F.3d 837, 843 n.6 (9th Cir. 2004)...4, 5
Liberi, et al v. Defend our Freedoms Foundations, Inc.,
Liberi, et al v. Taitz, et al,
U.S.D.C., Central District of California, Southern Division,
Case No. 8:11-cv-00485 AJG3
Liberi, et al v. Orly Taitz, et al,
Ninth Circuit Court of Appeals, Case No. 11-561641
M/V American Queen v. San Diego Marine Construction Corp.,
708 F.2d 1483, 1491 (9th Cir. 1983)...11
MacDonald v. Grace Church Seattle,
457 F.3d 1079, 1086 (9th Cir. 2006).7
Morrison v. Hall, 261 F.3d 896, 900, fn.4 (9th Cir. 2001)6
New Alaska Dev. Corp. v. Guetschow,
Orr v. Bank of America, NT & SA,
th
Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9 Cir. 2002)....7
842 F.2d 1074, 1077 (9 Cir.1988)...6, 8
Ninth Circuit Court of Appeals, Case No. 11-56079.1
869 F.2d 1298, 1306 (9th Cir. 1989)....14
285 F.3d 765, 773 (9 Cir. 2002).....11
iv
Cases Page(s)
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9
th
Cir. 2009)..7
Panawiew Door v. Window Co. v. Reynolds Metal Co.,
255 F.2d 920, 922 (9
th
Cir. 1958)..6
Peterson v. Highland Music, Inc.,
140 F.3d. 1313, 1321 (9th Cir. 1998)8
Pollstar v. Gigmania LTD.,
170 F. Supp. 2d 974, 978-79 (E.D. Cal. 2000)12
Rhodes v. MacDonald, 670 F. Supp. 2d 1363 (M.D. Ga. 2009)...3
Rhodes v. MacDonald,
2010 U.S. App. LEXIS 5340 (11
th
Cir. Mar. 15, 2010)3
Rivernider v. U.S. Bank,
U.S.D.C., Southern District of Florida,
Santa Monica Food Not Bombs v. City of Santa Monica,
450 F.3d 1022, 1025 n.2 (9th Cir. 2006)...10, 12
Sidney-Vinstein v. A.H. Robins Co.,
697 F.2d 880, 885 (9th Cir.1983)..10, 12
Smith v. Marsh, 194 F.34d 1045, 1052 (9
th
Cir. 1999)..7
Taitz v. Michael Astrue,
U.S.D.C., District of Columbia, Case No. 11-4023
United States v. $22,474.00 in U.S. Currency,
246 F.3d 1212, 1218 (9
th
Cir. 2001)..6
Case No. 9:09-cv-81255-WPD.3
v
Cases Page(s)
United States v. Elias, 921 F.2d 870, 874 (9
th
Cir. 1990)..7
United States v. Rearden, 349 F.3d 608, 614 n.2 (9
th
Cir. 2003)..4
Wyatt v. Terhune, 315 F.3d 1108, 1114 n. 5 (9th Cir. 2003).11, 12
Yagman v. Republic Ins. Co.
987 F.2d 622, 626, fn 3 (9
th
Cir. 1993)..6
Yniguez v. Arizonans for Official English,
42 F.3d 1217, 1221, n. 3 (9
th
Cir. 1994)5
FEDERAL STATUTES
Page(s)
28 U.S.C. 1927...13, 14
FEDERAL RULES OF APPELLATE PROCEDURE
Page(s)
Rule 10(a).8
Rule 46(c)13
vi
NINTH CIRCUIT LOCAL RULES
Page(s)
Rule 46-213, 14
Rule 46-2(a).13
FEDERAL RULES OF EVIDENCE
Page(s)
Rule 201...8, 9, 10
Rule 801...10
Rule 901(a)..11
MISC.
Page(s)
5 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure 1382, at 706-07 (1990)..10, 11, 13
29 Am. Jur. 2d, Evidence 134 (Aug. 2005)..12
21B Fed. Prac. & Proc., Evidence 2d 5106.4..12
31A C.J.S. Evidence, 58 (June 2005)...12
1
APPELLEES OPPOSITION (OBJECTIONS) to APPELLANTS MOTION
for JUDICIAL NOTICE (REQUEST for JUDICIAL NOTICE)
Appellees Lisa Liberi, Lisa Ostella, Go Excel Global, Philip J. Berg,
Esquire, and the Law Offices of Philip J. Berg oppose and object to Appellant,
Defend our Freedoms Foundations, Inc. [DOFF], or [Appellant], Motion for
Judicial Notice (Request for Judicial Notice) [RJN] and of the three [3] Exhibits
attached thereto. Appellees are also asking this Court to Sanction Attorney for
DOFF, Orly Taitz, Esquire, and Award Appellees Attorney Fees and Costs.
STATEMENT OF FACTS
Appellants Appeal is from the District Courts Denial of their Anti-SLAPP
Motion.
Appellants filed their Opening Brief on December 19, 2011; On February 3,
2012, Appellate Commissioner Peter L. Shaw consolidated Appellate Cases Liberi,
et al v. Defend our Freedoms Foundations, Inc., Case No. 11-56079 filed by Orly
Taitz on behalf of DOFF; and Liberi, et al v. Orly Taitz, et al, Case No. 11-56164
filed by Jeffrey Cunningham, Esquire on behalf of Orly Taitz.
Appellees (Plaintiffs) filed their Consolidated Answering Brief on March 19,
2012.
On April 19, 2012, Jeffrey Cunningham, Esquire on behalf of Orly Taitz
filed what he called a Consolidated Reply Brief along with a Supplemental
Excerpt of Record in Case No. 11-56079, Docket No.s [DNs] 40-1 and 40-2,
2
which were rejected by the Court and Ordered refiled with corrections. On this
same date, Orly Taitz, Esquire [Taitz] on behalf of DOFF also filed a
Consolidated Reply Brief and three [3] Exhibits in Case No. 11-56164, DNs 35-
1, 35-2, 35-3 and 35-4, despite the Courts Order Consolidating the Appeals.
DOFFs filing was also rejected, and Ordered refiled with corrections.
On April 30, 2012, DOFF refiled its Reply Brief and a Motion for Judicial
Notice of the three [3] Exhibits that have no relevancy to this Appeal; are
unauthenticated; are hearsay; and are submitted for the first time with the Reply
Brief of DOFF.
Orly Taitz has Abused the Courts Process, filing a secondary Consolidated
Reply Brief, with arguments not raised in DOFFs Opening Appellate Brief, not
presented to the District Court regarding their Anti-SLAPP Motion, and arguments
that have absolutely nothing to do with Taitzs and DOFFs Appeal. Orly Taitz on
behalf of DOFF also violated the rules with the filing of the three [3] Exhibits, that
she is requesting this Court to take Judicial Notice of. Orly Taitz obtained Exhibit
3 to her Request by fraudulent and deceptive means.
Appellees incorporate by reference as if fully set forth here at length, their
Motion to Strike DOFFs Reply Brief and three [3] Exhibits
1
and the Declaration

1
DOFF in their original Reply Brief attached three [3] Exhibits, the same three [3] Exhibits they
are now attempting to have this Court take Judicial Notice of.
3
of Philip J. Berg, Esquire in support of Appellees Motion to Strike filed April 24,
2012, ID 8151063, Docket Numbers [DN] 38-1, 38-2, 38-3, 38-4, 38-5, 38-6,
and 38-7.
Taitz used the Court as a publishing ground for her Press Release to
publish private confidential documents she fraudulently, under false pretenses,
obtained from a Court
2
.
The Documents DOFF is requesting Judicial Notice of do not qualify to be
Judicially Noticed by this Court. DOFF does not merely ask this Court to
acknowledge these documents, but cites the contents thereof for the truth of the
matter asserted therein as providing evidentiary support to DOFFs Reply Brief
and this Appeal. See DN 35 at pp. 28-30.

2
Taitz, counsel for DOFF, has a history of obtaining documents by fraudulent means and filing
manufactured, altered and forged documents as genuine, in our Federal Courts. See Rhodes v.
MacDonald, 670 F. Supp. 2d 1363 (M.D. Ga. 2009) (imposing $20,000 sanctions on counsel
Orly Taitz for use of the legal process for an improper purpose), affd Rhodes v. MacDonald,
2010 U.S. App. LEXIS 5340 (11
th
Cir. Mar. 15, 2010); Liberi, et al v. Taitz, et al, U.S.D.C.,
Central District of California, Southern Division, Case No. 8:11-cv-00485 AJG ($250.00
Sanctions for failing to abide by the Courts June 14, 2011 Order, DN 227); Barnett, et al v.
Obama, et al, U.S.D.C., Central District of CA, Southern Div., Case No. 09-cv-00082 DOC
(Manufactured/forged Kenya Birth Certificate, Docket No. 55-3 filed Sept. 4, 2009 and Certified
copy of Kenya Registration of Birth, Docket No. 34-2 filed August 1, 2009 bearing President
Barack Obamas name); Rivernider v. U.S. Bank, U.S.D.C., Southern District of Florida, Case
No. 9:09-cv-81255-WPD, See Docket No. 55-1 filed January 26, 2010 (Manufactured, altered
and forged website pages; subpoenas and Emails filed as genuine by Taitz); and Taitz v.
Michael Astrue, U.S.D.C., District of Columbia, Case No. 11-402, Docket No. 39, October 17,
2011, Opinion of Judge Lamberth, page 3, fn 2 and Docket No. 33 filed August 30, 2011
Opinion of Judge Lamberth, pages 7-8, fn 4 (fraudulently obtained Selective Service Record of
President Obama and a Verification of President Obamas Social Security number obtained in
violation of our Federal Laws, through the Social Security E-Verify). Berg Decl., pp. 6-7, 10.
4
For the reasons outlined herein and in Appellees Motion to Strike appearing
as DNs 38-1 through 38-7, DOFFs RJN must be Denied and Stricken; Taitz
Sanctioned; and Appellees awarded Attorney Fees and Costs.
ARGUMENT
I. ARGUMENTS and EVIDENCE PRESENTED for the FIRST
TIME in a REPLY BRIEF are WAIVED and MUST be
STRICKEN:
Appellees were not afforded the opportunity to address the new extended
arguments, in which they are using their improper RJN to support and lend
credibility, that were not presented to the lower Court, not raised in their
Appellants Opening Brief and are raised for the first time in DOFFs Reply Brief,
DN 35.
It is the long holding of this Court that documents presented for the first time
with a Reply Brief will not be considered. See Koerner v. Grigas, 328 F.3d 1039,
1048 (9th Cir. 2003). Additionally, issues and documents raised for the first time
in an Appellants Reply Brief are considered waived. The Court routinely refuses
to consider them. See, e.g., Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 n.6
(9th Cir. 2004) (declining to consider issue raised in reply brief); United States v.
Rearden, 349 F.3d 608, 614 n.2 (9
th
Cir. 2003) (We decline to consider Reardens
argument . . . because it is raised for the first time in reply.); Cedano-Viera v.
Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003) ([W]e decline to consider new
5
issues raised for the first time in a reply brief.): Graves v. Arpaio, 623 F.3d 1043,
1048 (9th Cir. 2010) (per curiam) (arguments raised for the first time in a reply
brief are waived.); Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990)
("It is well established in this circuit that the general rule is that appellants cannot
raise a new issue for the first time in their reply briefs.") (quotations and citations
omitted); quoting Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985)
("As a general rule, we will not consider an issue raised for the first time on
appeal."). The reason for this is fairness. When an issue is raised for the first time
in a Reply Brief, it means that the Appellees have not had an opportunity to
respond to that issue. See Lentini, 370 F.3d at 843 n.6.
Appellees have not had an opportunity to respond to these newly raised
arguments or Exhibits, which is extremely prejudicial and must not be allowed.
DOFFs Reply and RJN, including Exhibits 1 through 3 must not be
considered and must be stricken; this Court should Sanction Attorney Orly Taitz;
and Award Appellees Attorney Fees and Costs.
II. APPELLATE COURTS ONLY CONSIDER the RECORD
BEFORE the DISTRICT COURT on APPEAL:
The Appellate Record cannot include factual allegations or supposed
evidence unsupported by the District Court Record. Yniguez v. Arizonans for
Official English, 42 F.3d 1217, 1221, n. 3 (9
th
Cir. 1994). The creation of the
record on appeal occurs solely in the District Court. Appellate Courts consider
6
only the record before the trial judge when his decision was made (emphasis in
original) Kirshner v. Uniden Corp. Of America, 842 F.2d 1074, 1077 (9
th
Cir.1988).
Neither the Appellant nor the Appellee can add to or enlarge the record on
Appeal to include material that was not before the District Court. Morrison v. Hall,
261 F.3d 896, 900, fn.4 (9th Cir. 2001). Appellate Courts may consider only those
matters that were before the District Court when the decision, being appealed, was
entered. United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212, 1218 (9
th
Cir. 2001).
The rule prohibiting enlargement of the record is strictly construed. The
Ninth Circuit will strike extraneous matters from the record on its own motion,
even if the parties have stipulated to their inclusion in the record on Appeal.
Panawiew Door v. Window Co. v. Reynolds Metal Co., 255 F.2d 920, 922 (9
th
Cir.
1958). The only exceptions to this rule is when a mistake in the reporters
transcript has occurred (FRAP 10(e); 28 USC Sections 1734, 1735), or where
judicial notice is appropriate. Yagman v. Republic Ins. Co. 987 F.2d 622, 626, fn 3
(9
th
Cir. 1993), none of which apply herein.
An Appeal is a proceeding in which a higher Court reviews the actions taken
by a Trial Court, or in this case, the District Court. Appeals are generally limited
to a review of the record from the lower Court. Parties cannot introduce new
7
evidence and are limited to what was said and introduced at the original
proceeding. Issues, defenses and arguments not raised at the District Court cannot
be raised in the Appeal. This Court reviews the lower Court's application of the
law to the facts as presented. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9
th
Cir. 2002) (We generally do not consider issues raised for the first time on
Appeal); MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir.
2006) (We decline to consider arguments raised for the first time on appeal.);
Smith v. Marsh, 194 F.34d 1045, 1052 (9
th
Cir. 1999) (We do not consider
contentions, facts or arguments raised for the first time on appeal); Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9
th
Cir. 2009) (per curiam) (We do not consider
arguments and allegations raised for the first time on appeal.); United States v.
Elias, 921 F.2d 870, 874 (9
th
Cir. 1990) (We decline to consider evidence or
arguments presented for the first time on appeal.).
As stated by Judge McKeown in Ctr. for Bio-Ethical Reform, Inc. v. City &
County of Honolulu, 2006 U.S. App. LEXIS 16837; 455 F.3d 910 (9
th
Cir. July 6,
2006) in her Amended Opinion at fn. 3, "There is good reason why we generally
do not consider issues for the first time on appeal--the record has not been
developed, the district court has not had an opportunity to consider the issue, and
the parties' arguments are not developed against the district court decision.
8
DOFF filed its RJN of Exhibits 1, 2 and 3 in attempts to support their
new arguments appearing in their Reply Brief outlined above were waived by
DOFF because DOFF did not present them to the District Court regarding their
Anti-SLAPP Motion and therefore, they must be Stricken. See Peterson v.
Highland Music, Inc., 140 F.3d. 1313, 1321 (9th Cir. 1998) and Carmen v. San
Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). See also In re
BioLase Tech. Sec. Litig., No. 04-947 DOC (C.D. Cal. Jan. 27, 2003) n1; Fed. R.
App. P. 10(a); and Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.
1988).
Accordingly, this Court should Strike DOFFs Motion for Judicial Notice
and Exhibits 1 through 3 that [were] not presented to the district court
Kirschner, supra, 842 F.2d at 1078.
III. THE DOCUMENTS DOFF is REQUESTING JUDICIAL
NOTICE of are not SUBJECT to JUDICIAL NOTICE:
Judicial Notice may be taken only of matters of common knowledge and
readily verifiable facts. Federal Rules of Evidence 201. (See Section C, infra).
DOFFs RJN impermissibly asks the Court to take Judicial Notice of three [3]
Exhibits that are not a matter of common knowledge nor readily verifiable. FRE
201, Adv. Comm. Notes ([T]he adjudicative facts are those to which the law is
applied in the process of adjudication. They are the facts that normally go to the
jury. They relate to the parties, their activities, their properties, their businesses.);
9
Henderson v. State of Oregon, 203 F. Appx 45, 52-53 (9
th
Cir. 2006) (declining to
take judicial notice of an affidavit or report from another proceeding, noting that
adjudicative facts appropriate for judicial notice are typically different from facts
found in affidavits supporting litigation positions, which often present facts subject
to dispute.).
i. DOFFs Exhibit 1, DN 47-2 to their RJN filed April 30, 2012:
DOFFs Exhibit 1 is a hearsay document with absolutely no relevance to
this Appeal or Appellees underlying case in violation of the Federal Rules of
Evidence and therefore is not properly subject to Judicial Notice under Rule 201 of
the Federal Rules of Evidence.
Exhibit 1 purports to be an Investigative Report from an unknown
person, with unknown qualifications, from a supposed hearing of some sort
completely unrelated to this Appeal, and unrelated to Appellees case against
Appellants. The sole purpose of DOFFs request is to attempt to introduce into
evidence material that DOFF contends support their position in their present
Appeal of the District Courts Ruling on their Anti-SLAPP Motion.
DOFF cites to this hearsay document they call an Investigative Report as
if it somehow constitutes admissible evidence before this Court. But Rule 201
only provides for the taking of Judicial Notice of an adjudicative fact. And the
only adjudicative fact properly subject to Judicial Notice is one not subject to
10
reasonable dispute in that it is either: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. FRE 201,
subd. (b). These out of Court statements contained in this Investigative Report
do not meet the definition of adjudicative facts, and are therefore not properly
subject to Judicial Notice.
Rule 801 of the Federal Rules of Evidence defines hearsay as a statement,
other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. Hearsay is not admissible,
absent an applicable exception. FRE 801. No possible exception to the hearsay
rule applies in the instant case.
Further, Exhibit 1 is irrelevant, immaterial, impertinent and has absolutely
no relevancy to the pending appeal, nor is it relevant to the Anti-SLAPP Motion or
the underlying case and therefore cannot be considered. See Cuellar v. Joyce, 596
F.3d 505, 512 (9th Cir. 2010) (declining to take judicial notice of materials that
were not relevant to the disposition of the appeal); Santa Monica Food Not Bombs
v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (same); Sidney-
Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). Immaterial
matter is that which has no essential or important relationship to the claim for relief
or the defenses being pleaded." 5 Charles A. Wright & Arthur R. Miller, Federal
11
Practice and Procedure 1382, at 706-07 (1990). " 'Impertinent' matter consists of
statements that do not pertain, and are not necessary, to the issues in question." Id.
at 711.
ii. DOFFs Exhibits 2, DN 47-3 and 3, DN 47-4 to their RJN
filed April 30, 2012:
DOFFs Exhibits 2 and 3 are not properly subject to Judicial Notice
under Rule 201 of the Federal Rules of Evidence. Exhibit 2 purports to be a
Petition for Discipline and Exhibit 3 purports to be Respondents Answer to
the Petition, filed in a Pennsylvania Court unrelated to this Appeal, unrelated to
Appellees case and unrelated to any of the Defendants/Appellants. Exhibit 3 are
not public documents, and was obtained by Orly Taitz, Esquire for DOFF by
fraudulent and deceptive practices. See the Declaration of Philip J. Berg, Esquire,
DN 38-2 filed in this appeal April 24, 2012. DOFFs Exhibits 2 and 3 are also
hearsay documents in violation of FRE 801 and are unauthenticated in violation of
FRE 901(a); Orr v. Bank of America, NT & SA, 285 F.3d 765, 773 (9
th
Cir. 2002).
(Unauthenticated documents will not be considered by the Court).
In the Ninth Circuit, it is well established that [a]s a general rule, a Court
may not take judicial notice of proceedings or records in another cause so as to
supply, without formal introduction of evidence, facts essential to support a
contention in a cause then before it. M/V American Queen v. San Diego Marine
Construction Corp., 708 F.2d 1483, 1491 (9th Cir. 1983); accord, Wyatt v.
12
Terhune, 315 F.3d 1108, 1114 n. 5 (9th Cir. 2003) (factual findings in one case not
admissible for their truth in another case through judicial notice); Pollstar v.
Gigmania LTD., 170 F. Supp. 2d 974, 978-79 (E.D. Cal. 2000) (Because there is
no authority for judicial notice of pleadings in an unrelated case, the court declines
to take judicial notice of the [other court] pleadings.)
A Court cannot take Judicial Notice of pleadings in an unrelated case, to
which the party attempting to introduce them was not a party and was not present,
as such documents are hearsay. 29 Am. Jur. 2d, Evidence 134 (Aug. 2005)
(internal footnotes omitted); See also, 21B Fed. Prac. & Proc., Evidence 2d
5106.4 (It seems clear that a court cannot notice pleadings or testimony as true
simply because these statements are filed with the court.); 31A C.J.S. Evidence,
58 (June 2005).
Further, Exhibits 2 and 3 are irrelevant, immaterial, impertinent and has
absolutely no relevancy to the pending appeal, nor is it relevant to the Anti-SLAPP
Motion or the underlying case and therefore cannot be considered. See Cuellar v.
Joyce, 596 F.3d 505, 512 (9th Cir. 2010) (declining to take judicial notice of
materials that were not relevant to the disposition of the appeal); Santa Monica
Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006)
(same); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983)."
'Immaterial' matter is that which has no essential or important relationship to the
13
claim for relief or the defenses being pleaded." 5 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure 1382, at 706-07 (1990). " 'Impertinent'
matter consists of statements that do not pertain, and are not necessary, to the
issues in question." Id. at 711.
IV. ORLY TAITZ, ESQUIRE MUST BE SANCTIONED and
APPELLEES AWARDED ATTORNEY FEES and COSTS:
The Ninth Circuit Rule 46-2 (a) outlines sanctionable conduct and conduct
subject to Discipline, This Court may impose discipline on any attorney
practicing before this Court who engages in conduct violating applicable rules of
professional conduct, or who fails to comply with rules or orders of this Court.
The discipline may consist of a monetary penalty, restitution, or any other
action that the Court deems appropriate and just. [emphasis added].
As outlined in the Circuit Advisory Committee Note to Rule 46-2, this Court
may sanction an attorney who so multiplies the proceedings in any case
unreasonably or vexatiously, 28 U.S.C. 1927, Circuit Advisory Committee Note
7 Against counsel for conduct that violates the orders or other instructions of the
Court, or for failure to comply with the Federal Rules of Appellate Procedure or
any Circuit Rule.; and Under the inherent powers of the Court. See, e.g.,
Chambers v. Nasco, Inc., 501 U.S. 32, 45-50 (1991), See also Circuit Advisory
Committee Note (8); and As a form of discipline under FRAP 46(c) and
Circuit Rule 46-2, with notice of such sanctions provided to the appropriate courts
14
and state disciplinary agencies when the Court deems such notice to be justified.,
See Circuit Advisory Committee Note (9).
28 U.S.C. 1927 allows this Circuit to sanction an attorney who so
multiplies the proceedings in any case unreasonably and vexatiously for those
excess costs, expenses and attorneys fees reasonably incurred as a result of
attorneys conduct. Recklessness suffices under 1927, but the Court must find
there was bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107-08 (9
th
Cir.
2002). There is no question that Orly Taitz, Esquire, who is a seasoned Attorney
licensed to practice law in the State of California, actions were in bad faith and it is
supported by her filing on April 30, 2012, which is clear and convincing
evidence. In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9
th
Cir. 2009.); New Alaska
Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) ("Bad faith is
present when an attorney knowingly or recklessly raises a frivolous argument or
argues a meritorious claim for the purpose of harassing an opponent.") Id.
(quoting Estate of Blas, 792 F.2d 858, 860 (9th Cir. 1986); B.K.B. v. Maui Police
Dept, 276 F.3d 1091, 1107-08 (9th Cir. 2002) (attorneys knowing and reckless
introduction of inadmissible evidence was tantamount to bad faith and warranted
sanctions under 1927 and the courts inherent power); Fink v. Gomez, 239 F.3d
989, 993-94 (9th Cir. 2001) (attorneys reckless misstatements of fact, combined
with an improper purpose, are sanctionable under the courts inherent power);
15
Chambers v. NASCO, 501 U.S. 32 (1991) (holding that the excessive sanctioning
for attorneys fees and costs for bad-faith conduct was appropriate).
Orly Taitz, Esquire violated this Courts Circuit Rules by filing a Motion for
Judicial Notice of documents that are irrelevant, immaterial and impertinent to the
Appeal, to the underlying case, and of documents obtained by fraudulent and
deceptive means to harm the Appellees. This conduct warrants Sanctions and the
Award of Attorney Fees and Costs to Appellees, B.K.B. v. Maui Police Dept, 276
F.3d 1091, 1107-08 (9th Cir. 2002).
V. CONCLUSIONS:
For the reasons outlined herein, DOFFs Request/Motion for Judicial Notice,
DN 47-1 of Exhibits 1 through 3, DNs 47-2, 47-3 and 47-4 attached thereto
must be Denied and Stricken in their entirety. Orly Taitz, Esquire must be
Sanctioned in an amount determined by the Court; and Appellees Awarded
Attorney Fees and Costs in the amount of $10,000.00.
Respectfully submitted,
Dated: May 4, 2012 /s/ Philip J. Berg
Philip J. Berg, Esquire
Attorney in pro se and for Appellees,
Lisa Liberi, Lisa Ostella, Go Excel
Global and the Law Offices of Philip
J. Berg

LISA LIBERI, et al,

PlaintiIIs/Appellees
vs.
ORLY TAITZ, DEFEND OUR
FREEDOMS FOUNDATIONS, INC., et al,
DeIendants/Appellants

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On Appeal Irom the United States District Court,
Central District oI CaliIornia, Southern Division
Case No. 8:11-cv-00485
Honorable Andrew GuilIord

Philip J. Berg, Esquire (PA Bar No. 09867)
Law OIIices oI Philip J. Berg
555 Andorra Glen Court, Suite 12
LaIayette Hill, PA 19444-2531
Ph: (610) 825-3134

I, Philip J. Berg, Esquire, hereby certiIy that a true and correct copy oI
PlaintiIIs/Appellees Opposition/Objections to Appellant DeIend our Freedoms
Foundations, Inc.s Request Ior Judicial Notice and the three |3| Exhibits attached
thereto was served this 4
th
day oI May 2012 electronically through the ECF Filing
system, upon the Iollowing:
Kim Schumann, Esquire
JeIIrey Cunningham, Esquire

3100 S. Bristol Street, Suite 400
Costa Mesa, CA 92626
Email: kschumannsrrlawIirm.comand jcunninghamsrrlawIirm.com

Orly Taitz, Esquire
29839 Santa Margarita, Suite 100
Rancho Santa Margarita CA 92688
Email: orly.taitzgmail.com and drtaitzyahoo.com

James F. McCabe, Esquire
MORRISON / FORESTER
425 Market Street
San Francisco, CA 94105
Email: jmccabemoIo.com

Marc Steven Colen, Esquire

5737 Kanan Road, Suite 347
Agoura hills, CA 91301
Email: mcolencolenlaw.com, lcolencolenlaw.com

/s/ Philip J. Berg
Philip J. Berg, Esquire

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Case Numbers: 11-56079 and 11-56164

(Consolidated February 3, 2012)

LISA LIBERI, et al,

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