LIBERI v TAITZ (Ninth Circuit)

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Geritol
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LIBERI v TAITZ (Ninth Circuit)

Post by Geritol »

Okay, report from "Loafers on the Ground."








All in all, no fireworks.





And I have to say I was not pleased with Roscoe's this morning. The sausage patties were dry, the water had a funny aftertaste and the gravy on the potatoes was not up to their usual standards.[tab=30][tab=30]Though Woodworker is a fine attorney and I believe his report to be credible, NOBODY orders sausage at Roscoe's. Waffles, yes. Chicken, yes. [tab=30][tab=30]Greens, yes. Sausage, no.
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mimi
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LIBERI v TAITZ (Ninth Circuit)

Post by mimi »

Thanks, woodworker!Fogbow badge for you! :-bd
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realist
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Post by realist »

Thanks, woodworker and Geritol for taking the time to attend and to report on the proceedings.mimi is correct... Fogbow badge for the both of ya. :-bd
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ducktape
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LIBERI v TAITZ (Ninth Circuit)

Post by ducktape »

Great report, guys. I would have rather been with you than in the dentist's chair.All of this really makes me wonder about Berg -- is he going senile, or has he always been this bad?
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Addie
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Post by Addie »

Thanks, Woodworker and Geritol. :D
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rosy
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Post by rosy »

Thanks for the reports!
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June bug
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Post by June bug »

:-bd \ :D / Great report, woodworker and many thanks to Geritol as well. :xo :-* Nothing beats Fogbow BOTG even when they're loafers!
A Legal Lohengrin
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Post by A Legal Lohengrin »

All of this really makes me wonder about Berg -- is he going senile, or has he always been this bad?He's always been this bad.
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SLQ
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Post by SLQ »

Thanks, Woodworker and Geritol, for the LOTG. While looking for an appropriate pic to illustrate my thanks, I stumbled upon these. Lovely, don'tcha think?http://1.bp.blogspot.com/-buMZ4ygsW5Y/T ... 0/HAha.jpg
"Try not. Do or do not. There is no try."
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DaveMuckey
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Post by DaveMuckey »

Ogrely didn't speak?





INCONCEIVABLE!
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Chilidog
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Post by Chilidog »

I'm at a stop light can I get a one sentence update?
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Sterngard Friegen
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Post by Sterngard Friegen »

Looks like the court is going to dismiss the appeal as moot. When Phil Berg was asked about the leading case on point it was as if the discussion was about biochemistry on Mars.
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MsDaisy
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Post by MsDaisy »

:-bd \ :D / Great report, woodworker and many thanks to Geritol as well. :xo :-* Nothing beats Fogbow BOTG even when they're loafers! :lol:Yes, great report :-bd :-bd
Birfers are toast
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Chilidog
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Post by Chilidog »

Looks like the court is going to dismiss the appeal as moot. When Phil Berg was asked about the leading case on point it was as if the discussion was about biochemistry on Mars.Thanks(I'm not driving now, but it helps to see it al distilled down like that)
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SuzieC
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LIBERI v TAITZ (Ninth Circuit)

Post by SuzieC »

Thanks, Woodworker and Geritol, for the LOTG. While looking for an appropriate pic to illustrate my thanks, I stumbled upon these. Lovely, don'tcha think?http://1.bp.blogspot.com/-buMZ4ygsW5Y/T ... a.jpgGreat report, fugly shoes.
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Post by MetoDC »

LOVE the shoes!!!!! =))
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Foggy
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Post by Foggy »

No opinion on shoes for public consumption but great report by woodworker and Geritol! You can be BOTG any time! :hug: :-bd
Buckle up, peeps, this ride is gonna get BUMPY. :shock:
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bob
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Post by bob »

Question for the BOTGs:What, if any, was the interaction between Berg and Taitz? Pointedly not looking at each other?
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SueDB
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Post by SueDB »

Thanks, Woodworker and Geritol, for the LOTG. While looking for an appropriate pic to illustrate my thanks, I stumbled upon these. Lovely, don'tcha think?http://1.bp.blogspot.com/-buMZ4ygsW5Y/T ... a.jpgGreat report, fugly shoes.All right, fess up...Who has been digging through my daughter's closet?????
“If You're Not In The Obit, Eat Breakfast”

Remember, Orly NEVAH disappoints!
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Sterngard Friegen
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Post by Sterngard Friegen »

[hidden]Are we ready for the winning argument (for Taitz) on the mootness point? Well, here it is.





The purpose of the anti-SLAPP statute would be thwarted by allowing amendments to the pleadings when the whole point of the anti-SLAPP procedure is to dispose quickly and efficiently of the claims as presented to the trial court which are clearly deficient.





Subsequent amendment should thus not be permitted. The case on point is Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 460-463. Here's the key holding in Hecimovich, a bit long but worth it to the lawyers here:


Plaintiff's Motion to Augment





In his brief to us, plaintiff chastises defendants for "improperly omit[ting] from the record plaintiff's first amended complaint filed December 8, 2010, one month before the appeal." And on July 6, 2011, plaintiff filed a motion to augment the record on appeal, to include (1) the first amended complaint, and (2) a copy of a January 2011 article from an online newspaper, The Almanac Online, entitled "Encinal Coach's Lawsuit Ruling Appealed," along with online comments about the article. Defendants opposed the motion, and on July 14 we ordered that we would take the motion under submission and decide it with the merits of the appeal.





On September 9, 2011, plaintiff filed what he called a "Supplemental Memorandum and Post- Motion Evidence in Support of His Motion to Augment the Record." This sought to augment the record to "reflect [plaintiff's] efforts to obtain discovery" concerning the "authorship of the defamatory January 2011 online articles," which discovery was disallowed by the trial court.





We now deny the motion to augment.





The reason plaintiff sought to add the first amended complaint was, in his words, for "the sole purpose of adjudicating the second prong of the anti-SLAPP test--assessing [plaintiff's] likelihood of success on the merits. [Plaintiff] cited to Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871. Nguyen-Lam is directly on point." Nguyen-Lam is not on point. Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604 is.





[2] Roberts was, as here, an appeal from a denial of a SLAPP motion. And plaintiff Robert's first contention was that the appeal was "moot, frivolous, and should be dismissed because prior to the . . . filing of the notice of appeal she filed a second amended complaint, which is now the operative pleading." (Roberts v. Los Angeles County Bar Assn., supra,105 Cal.App.4th at p. 612 (Roberts).) Rejecting that claim, the court held that "An implied stay in the proceedings where the plaintiff files an amended complaint prior to the defendant's appeal of the denial of a SLAPP motion to strike is necessary so that a plaintiff cannot deprive a defendant of the right to the appellate review granted by the Legislature so that the appellate court can determine if the defendant had made a prima facie showing. [¶] There would be little benefit in a right to appeal if the plaintiff could get around appellate review by filing an amended pleading. Nor would a competitive rush to the courthouse fulfill the legislative purpose of a quick and inexpensive method of unmasking and dismissing SLAPP suits." (Id. at p. 613; accord, Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [appeal from grant of SLAPP motion].)





[3] Nguyen-Lam v. Cao, the case relied upon by plaintiff, is not to the contrary. There, the trial court had entered an unusual order, described by the Court of Appeal as follows: "The trial court couched its ruling as an order granting defendant's motion to strike, but with leave for plaintiff to amend her complaint to cure any deficiency concerning actual malice. . . . But authorizing an amendment under these circumstances is tantamount to denying the strike motion, and we therefore reach the propriety of the ruling based on defendant's challenge." (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 869-870.) The court went on to affirm the denial of the SLAPP motion, pointedly noting that it did so because the evidence showing that plaintiff could prevail on the merits was before the trial court at the time of the motion: "True, a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049) but where, as here, the evidence prompting amendment is found in the declarations already submitted for the hearing, there is no risk the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs. (Cf. ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1323 [plaintiff cannot amend pleading to avoid pending anti-SLAPP motion]); Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [plaintiff cannot use 'eleventh-hour amendment' to plead around anti-SLAPP motion].)" (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 871-872.) In short, the court concluded, "the trial court did not err in permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof presented at the hearing on the strike motion." (Id. at p. 873.)





[4] This, of course, is not the setting here, and the first amended complaint has no place before us, as plaintiff at one point apparently concedes, observing that "the original complaint remains the operative pleading for purposes of assessing whether [defendants] engaged in protected activity subject to the SLAPP statute."





As to the January 2011 online newspaper article and the numerous comments that followed it--all published after the appeal was filed--they have nothing to do with the two issues involved in the SLAPP analysis. fn. 4 Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, cited by plaintiff in his reply brief for the proposition that "nothing in the statute or case law suggests that the factual analysis for ruling on the motion must be frozen in time on the date the complaint is filed," is easily distinguishable. Slauson held that a trial court ruling on a SLAPP motion--there, in a case involving an injunction--could rely on postcomplaint evidence in ruling on the motion. (Id. at p. 1021.) Not postappeal evidence.





In sum, we analyze the matter based on plaintiff's complaint and the papers filed below in connection with the SLAPP motion, an analysis to which we now turn.


My question for our Loafers on the Ground is this: Did Taitz's retained lawyer make this argument?





Bueller?





Bueller?[/hidden]
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woodworker
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Post by woodworker »

Loafers more like this, but size 13 and very old and abused.lefthttp://www.famousfootwear.com/ProductImages/shoes_ia93412.jpg[/img]
bring out the tumbrils. I am so fucking filled with pain and anger at what is going on in this country. I do deeply believe that if trump somehow retains power it will be the end of democracy in this country and the end of this country as we know it.
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Sterngard Friegen
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Post by Sterngard Friegen »

[hidden]Bueller?[/hidden]
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woodworker
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Post by woodworker »

[hidden]Are we ready for the winning argument (for Taitz) on the mootness point? . . . . . My question for our Loafers on the Ground is this: Did Taitz's retained lawyer make this argument? Bueller?Bueller?[/hidden]If he did, I didn't catch it.
bring out the tumbrils. I am so fucking filled with pain and anger at what is going on in this country. I do deeply believe that if trump somehow retains power it will be the end of democracy in this country and the end of this country as we know it.
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Piffle
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Post by Piffle »

Sorry, but those look like boat shoes to me.
CatMe
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Post by CatMe »

Loafers more like this, but size 13 and very old and abused.lefthttp://www.famousfootwear.com/ProductImages/shoes_ia93412.jpg[/img]My Sim's name in my most recent game is Penny Loafer. (Her dog is Nickel Loafer.) :D
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