Академический Документы
Профессиональный Документы
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LISA M. OSTELLA,
Plaintiff/Appellee
vs.
Case No. 17-56906
ORLY TAITZ, DEFEND OUR
FREEDOMS FOUNDATION, INC.
Defendants/Third-Party-
Plaintiffs/Appellants.
Jose B. Lorenzo
Lorenzo Law Firm, P.A.
2040 Delta Way
Tallahassee, FL 32303
Ph:855.757.2757
Email: admin@l orenzolaw firm.com
TABLE OF CONTENTS
Pages
II. PROCEDU RAL BACKGRO UND .............. .............. .............. ... 2-4
EXHIBIT "A" November 3, 2017 Orly Taitz and Defend Our Freedoms
Foundation, Inc. Counterclaims and Third Party Complaint
EXHIBIT "C" October 14, 2017 Plaintiff, Lisa Ostella's Second Amended
Complaint
TABLE OF AUTHORITIES
Cases Page(s)
Anderson v. Allstate Ins. Co., 630 F.2d 677, 682 (9th Cir.1980) ................... .. 11
Axell Int'l, Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943
(9th Cir. 1999) ................... ..... ................... ................... ...... . ......... .. 9
Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1024 (9th Cir. 2010) ................ 19
Coopers & Lybrand v. Livesay, 437 U.S. 463,468 (1978) . ................... ........ 19
ii
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Cases Page(s)
Daniels v. Robbins, (2010) 182 Cal. App. 4th 2004 ................... ................. 18
Detabali v. St. Luke's Hosp., 482 F.3d 1199, 1202 (9th Cir. 2007) .................... 9
Deutsch v. Turner Corp. 324 F.3d 692, 717 (9th Cir. 2003),
cert. den. (2003) ................... ................... ................... ................... .. 12
Englert v. MacDonnell, 551 F.3d 1099, 1103 (9th Cir. 2009) ................... ..... 19
In re Thomas, 508 F.3d 1225, 1226-27 (9th Cir. 2007) ................... ........... ,, .. 8
iii
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Cases Page(s)
Kuba v. 1-A Agric. Ass'n, 387 F.3d 850, 855 (9th Cir. 004) .................... ....... 9
Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,587 (9th Cir. 008) .................... 17
Leigh v. Gaffney. 432 F.2d 923 (10th ir.1970) .. ................ .... . ................... 7
Liberi, et al v. Taitz, et al, U.S. Court of Appeals for the Ninth Circuit,
Case Number 11-56079 ................... ................... ... . ............... ............ .. 4
Liberi, et al v. Taitz, et al, U.S. Court of Appeals for the Ninth Circuit,
Case Numberl 1-56164 ................... ................. ..... ... ..... .................... .. 4
Liberi, et al v. Taitz, et al, U.S. Court of Appeals for the Ninth Circuit,
Case Number 13-56250 ................... ................... ................... .............. 4
Liberi, et al v. Taitz, et al, U.S. Court of Appeals for the Ninth Circuit,
Case Number 13-56253 ........ ................... ................... . ................... .... 4
Lou v. MA Labs., Inc., No. C 12-05409 WHA, 2013 U.S. Dist. LEXIS
70665 (N.D. Cal. May 17, 2013) ................... ................... ................... ... 9
IV
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Cases Page(s)
McElmurry v. U.S. Bank Nat'l Ass'n, 495 F.3d 1136, 1140 (9th Cir.2007) .......... 17
New West Corp. v. NYM Co., 595 F.2d 1194, 1201 (9th Cir. 1979) ................. 13
Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 , 374,
98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) ................... ................... ............... 8
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. ,
506 U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) .................... ..... .17
Reed v. United Transp. Union, 488 U.S. 319, 323-24 (1989) ................... ..... .13
Ruiz v. Snohomish Cty. PUD, 824 F.3d 1161, 1165 (9th Cir. 2016) .............. 9, 12
V
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Cases Page(s)
Soliman v. CVS RX Services, Inc. , 570 F. App'x 710 (9th Cir. 2014) ...... . ........ 15
Swartz v. KPMG LLP, 476 F.3d 756,763 (9 th Cir. 2007) .................... ............ 9
United States v. Chung, 659 F.3d 815 (9th Cir.2011) ................... .............. . 10
United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) ... .. .................... ... 7
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.2003) .. . ............. 9
VI
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Cases Page(s)
th
Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9 Cir. 1987) ............. 10
Page(s)
15 U.S.C. §1125(c) .. .... ....... . ... ....... .............. ... ........... ............. ......... 13
28 u.s.c. §2106 .............. .. ............... ...... ...... ..... .. .... ......... .......... ...... 6
Page(s)
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Page(s)
Page(s)
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Page(s)
Penal Code:
ix
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I. INTRODUCT ION
December 13, 2017, currently under Appeal, 1 pursuant to 28 U.S.C. §2106, Rule of
App. Proc. Proc. Rule 2 and Rule 27. Ostella moves as such because Appeal is
inappropriate, i.e., a). Circuit Court lacks subject matter jurisdiction as did the
District Court; b). failure to comply with fraud claim requirements; c). Statute of
counterclaims/claims [See Exhibit A]; d). Appeals a non-final order; e). it is not
within Collateral Order Doctrine exceptions for Interlocutory Orders', and f).
and thwart District Court ADR. Trial is March 27, 2018 and pre-trial is
licensed attorney, has not given information for its defense, has avoided discovery
narrative of Taitz's defamatory conduct that lead to the law suit against her,
underscored by the Second Amended Complaint ("SAC"), against which Taitz filed
a CC/TPC. Taitz ignores the statutory bar of limitations for each and every
1
Appeal filed by Appellant/Defendant Orly Taitz and Defend Our Freedoms Foundation (DOFF) (herein after
referred to together as ("TAITZ")
1
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counterclaim and claim in the CC/TPC. Devoid of waiting 8 ½ years to file its
CC/TPC, it would still fail for not complying with Fed. R. Civ. Proc. 9(b) on all
fraud claims, lacking diversity of jurisdiction, not proving the $75,000 in damages,
and wrongfully violating Fed. R. Civ. Proc. Rule 13(h)- DOFF is without standing
Ostella remains the only Plaintiff after case was filed May 2009 in the
Eastern District of PA, [Dkt. # 1] with 21 defendants and six plaintiffs. Taitz
threatened, on June 16, 2009, with its Amended Answer and Motion to Strike [Dkt.
#61 ], that it reserved the right to file Counterclaims against Ostella for:
Taitz' s Motion was denied, and Complaint was not dismissed. Taitz waits 8-1 /2
years, a total of 102 months, and expects the Court to honor her filing in 2017.
Taitz' s request to transfer the case July 2010 to the Central District of CA,
was granted, on March 29, 2011, [Dkt. # 170] and Taitz appealed the requested
2
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transfer, causing delay. 2 Judge Guilford, upon Plaintiffs' request issued a pre-
filing Order requiring the parties to seek leave prior to filing pleadings, Dkt. #227.
A First Amended Complaint was filed on June 11, 2011 [Dkt. #231]. In October
2016, the only remaining Plaintiff, Lisa Ostella, moved to dismiss all dispensable
and all personally unrelated claims. Ostella seeks on four (4) claims. Request was
granted to simplify the case and pre-trial set for February 26, 2018 and Trial for
March 27, 2018. Ostella's SAC (See Exhibit C), was filed October 14, 2017
Taitz's filed an Answer on November 3, 2017 [Dkt. #752] and filed her
CCITPC, (See Exhibit A) [Dkt. #753], on behalf of herself and the terminated
Defendant, DOFF and named third party Defendants who had never been parties to
the within action. Ostella filed a Motion to Strike the CC/TPC. (See Exhibit D)
The District Court struck the CC/TPC on December 13, 2017(See Exhibit B),
[Dkt. #772 amended naming Lisa Ostella Dkt. #77 4] and it confirmed trial dates.
2
Taitz requested the case transferred to the U.S.D.C., Central District of CA. Once Granted by
Judge Robreno, and the case was ordered transferred, Taitz Appealed the Order of Transfer in
the Third Circuit Court of Appeals, delaying the within Action for close to a year. See Liberi, et
al v. Taitz, et al, Third Circuit Court of Appeals, Case No. 10-03000.
3
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Ostella's case - as stated in the SAC (See Exhibit C) is on four (4) claims
for Taitz's online postings, whereby Taitz from her www.orlytaitzesq.com blog,
posted nine (9) defamatory publications plus filed a false police report and F.B.I
report accusing Ostella of criminal activity with Taitz's donation account. Taitz's
libel with nine (9) publications. The www.orlytaitzesq.com blog has a rating of
top 1% by Alexa among one million websites, has a visitor counter that exceeds 94
million, has over 500 linked affiliated websites causing the gravamen of
Ostella provides web design and hosting for clients from New Jersey.
Ostella purchased and currently owns the domain names defendourfreedoms" and
its suffixes .com, .net, .info, .org, and .us. Taitz has two PayPal donations
3
Taitz has filed five appeals in this case See Liberi, et al v. Taitz, et al, U.S. Court of Appeals for
the Ninth Circuit, Case Numbers 9th CCA, 11-56079; 9th CCA, 11-56164, 9th CCA, 13-56250,
and 9th CCA, 13-56253.
4
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herself in December 2008 using her own social security number and her email
number.4 So, Ostella then transferred the PayPal donate button code to Taitz, as
email for authentication and access with a password only known by Taitz.
Later, when donors received error messages, Taitz quickly posted on her
blog that her PayPal account to the defendourfreedoms.us blog was hacked by
outside sources (of course naming Obama). Ostella told Taitz of the technical
reasons the blog was not hacked, since the web blog was hosted on Ostella's server
account and the PayPal account had nothing to do with the blog nor its hosting.
Taitz's also learned that the donations glitch was due to an email suffix error of
Taitz's own email and not a blog hacking and Ostella made Taitz aware of the
Yet, Taitz disregarded all explanations and posted that her site was hacked
and that she filed a cybercrime report with the FBI. When Taitz rejected Ostella's
explanation to correct her report to the FBI and her posting on the blog, Ostella
told Taitz she needed another webmaster. Taitz filed on April 17, 2009 a report
with the Orange County Sheriffs Department ("OSCO"), and posted her police
4
Defend our Freedoms Foundation, Inc. did not exist. Taitz registered February 19, 2009.
5
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report accusing Ostella of theft stating and Lisa Liberi were one and the same,
having a criminal record, and claiming that Ostella took $10,000 of donations from
"defendourfreedoms" domain Taitz posted that Ostella blocked Taitz from her
credentials when Taitz filed the criminal reports. But to allow an investigation,
Ostella stopped the transfer; she did not want to obstruct an investigation.
subpoenaed Taitz's PayPal donation account records, Ostella learned that Taitz
was continuously receiving donations and Taitz had a previously existing PayPal
account for donations. Taitz's continued her online defamation accusing Ostella of
criminal activity via her nine (9) online posts shows great negligence. Strategically,
Taitz has sought protected speech status under Anti-SLAPP, without ever proving
truthfulness, and by asserting the mere existence of a "cause" via the words
ARGUMENT:
The Ninth Circuit has the inherent power to grant Ostella' s Motion for
" .. court of appellate jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court lawfully brought before it
6
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for review, and may remand the cause and direct the entry of such
appropriate judgment, decree, or order, or require such further proceedings
to be had as may be just under the circumstances."
The Statute of Limitations has run on all claims. Trial is set for March 27,
2017 and Ostella has endured 8 ½ years the stigma ofTaitz's accusations. Delays
will increase the reasonable expected injury as one can expect of being unable to
secure employment due to being criminally accused via the Internet on nine (9)
5
See Cal. PharmacistsAss'n v. Maxwell- Jolly, 563 F.3d 847, 851-52 (9th Cir. 2009) (economic
injury can be irreparable harm if damages relief is not available).
6
summary disposition is appropriate, inter alia, when the position of one party is so
" •••
clearly correct as a matter of law that no substantial question regarding the outcome of
the appeal exists" See also In re Thomas, 508 F.3d 1225, 1226-27 (9th Cir. 2007), (Ninth
Circuit explained its "standards for disposing of cases on a summary basis"); :Loritz v.
U.S. Court of Appeals for Ninth Circuit, 382 F.3d 990, 992 (9th Cir. 2004) (Summary
Affirmance proper when Appellant lacked standing); United States v. Hooton 693 F.2d
857,858 (9th Cir. 1982) (summary affinnance of a final judgment where "it is manifest
that the questions on which the decision of the cause depends are so unsubstantial as not
to need further argument"); Chemical Eng'g Corp. v. Marlo, Inc., 754 F.2d 331,335
(Fed.Cir.1984) (court sua sponte summarily affirmed district court; appeal was "clearly
hopeless and unquestionably without any possible basis in fact or law"); National Labor
Relations Bd. v. Playskool, Inc., 431 F.2d 518, 519-520 (7th Cir.1970) (court granted
motion for summary affirmance because one party's contentions were found so
unsubstantial as to render the appeal frivolous and because time was of the essence);
United States v. Dura-Lux Int'l Corp., 529 F.2d 659, 660-662 (8th Cir.1976) (court sua
sponte concluded that summary disposition was appropriate because the questions
presented did not require further argument and because one party's contentions were
without merit); Leigh v. Gaffney, 432 F.2d 923 (10th Cir.1970) (court granted motion for
summary affirmance because question presented was so unsubstantial as to not warrant
7
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DOFF does not have standing. It was correctly dismissed October 12, 2016
as Ostella does not have any claims against it. There was no joinder for DOFF nor
to insert other unrelated individuals as defendants, who never were parties to this
action. Fed. R. Civ. P. Rule 19, see Fed. R. Civ. P. Rule13(h). The Court's limited
raised at any time, including on appeal. 8 This Court has an independent duty to
evaluate its own and the District Court's jurisdictions, even if none of the parties to
the Action raise it. 9 The Motion for Affirmance should be granted.
jurisdiction over state law claims, i.e., 28 U.S.C § 1367(a), the claims need to be
further argument); Goldstein v. Riggs Nat'l Bank, 459 F.2d 1161, 1163 n. 2
(D.C.Cir.1972) (court dispensed with additional briefing and argument because the
motion for summary affirmance demonstrated "that the merits of the claim are so clear as
to warrant expeditious action").
7 (See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d
274 (1978)), (See also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th
Cir. 2003) (per curiam).
8
See Detabali v. St. Luke's Hosp., 482 F.3d 1199, 1202 (9th Cir. 2007)).
9 (See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,954 (9th Cir. 2011)) (en bane);
California ex rel. Sacramento Metro. Air Qual. Mgmt. Dist. v. United States, 215 F.3d 1005,
1009 (9th Cir. 2000) ("An appellate court is under a 'special obligation to satisfy itself not only
of its own jurisdiction, but also that of the lower courts in a cause under review, even though the
parties are prepared to concede it .. . [or] make no contention concerning it."') (quoting Axell
lnt'l, Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943 (9th Cir. 1999)).
8
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related to form part of the same case and controversy. Taitz does not establish,
under Fed. R. Civ. P. Rule 13, the basis for its compulsory claim treatment or its
permissive claim treatment. Fed. R. Civ. Proc. Rule 14(b). Taitz does not establish
the required operative fact. 10 The Circuit and the District Court is unable to
dismissal by the District Court was proper under Fed. R. Civ. P. Rule 12(b)(l).
The District Court lacked original jurisdiction and it could only determine its
jurisdiction. 11 The Court does not have the "discretion to exceed the scope of its
Article III power". 12 District Court's striking the CC/TPC was appropriate. 13
Taitz's CC/TPC does not explain nor describe details of time, place,
10
(See Lou v. MA Labs., Inc., (N.D. Cal. May 17, 2013). See also Kuba v. 1-A Agric. Ass'n.
387 F.3d 850, 855 (9th Cir. 2004).
11
(See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966)). ("Exercise ofjurisdiction ... would therefore violate Article III of the Constitution,
because the original federal claim would not have 'substance sufficient to confer subject matter
jurisdiction upon the court. '"
12 (See North County Communications Corp. v. California Catalog & Technology, 594 F.3d
1149, 1162 (9th Cir. 2010); Saksenasingh v. Sec'y of Educ., 126 F.3d 347, 351 (D.C.Cir.1997)
("Jfthe District Court ... dismissed the underlying federal claim on jurisdictional grounds, then
it could not exercise supplemental jurisdiction."). See 28 U.S .C. § 1331 & 1332.
13
See Ruiz v. Snohomish Cty. PUD, 824 F.3d 1161 , 1165 (9th Cir. 2016).
14
(See Swartz v. KPMG LLP, 476 F.3d 756,763 (9 th Cir. 2007); Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1103 (9th Cir. 2003)). (See Fed. R. Civil P. 9(b):" ... a party must state with
9
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Predicated Acts (A-E) to the 5th Counterclaim, 8th, 9th , and 14th counterclaims fail to
Statute of Limitations
After 8 ½ years, Taitz's predicated acts for RICO claims under Federal and
A. Taitz's 1st, 2nd, 3rd, 5th 17 (and Predicated Acts A-E) Counterclaims;
8th, 9th, 10th and 14th Counterclaims for Fraud and state fraud claims carry a three
18
(3) year Statute of Limitations.
one (1) year CA Code Civ. Proc.,§ 340(3), Anderson v. Allstate Ins. Co., 630 F.2d
677,682 (9th Cir.1980). The 7th, 27th, 28th Counterclaims, 3rd Party Complaint
- 2nd -4 th Claims are for Defamation; 11th and 12th Counterclaims are for Invasion
particularity the circumstances constituting fraud or mistake." (See In re GlenFed, Inc. Securities
Litigation), 42 F.3d 1541 ,1548 n. 7 (9th Cir. 1994) (en bane).
15
(See In re Glenfield, 42 F.3d at 1548 quoting Wool v. Tandem Computers, Inc. , 818 F.2d 1433,
1439 (9 th Cir. 1987). (overruled on other grounds); Also see Glen Holly Entertainment, Inc. v.
Tektronix. Inc .. 100 F.Supp.2d 1086, 1093 (C.D.Cal.1999); "[A]llegations such as ' [d]uring the
course of discussions in 1986 and 1987,' ' in or about May through December 1987,' and 'May
1987 and thereafter' ... do not make the grade" under Rule 9(b). US. Concord, Inc. v. Harris
Graphics Corp. , 757 F.Supp. 1053, 1057 (N.D. Cal. 1991).
16
(See Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir.1993).
17
Taitz and DOFF's Predicated Acts (B), (C), and (D) to the 5th Counterclaim; are for Forgery.
Forgery is a form of Fraud.
18CCP 338(d), Thomson v. Canyon (2011) 198 Cal.App.4th 594; and for Federal Fraud Claims,
the Statute of Limitations is five (5) years, 18 U.S.C. §3282, United States v. Chung, 659 F.3d
815 (9th Cir.2011). Also, Taitz' s 4th and 13th (Conversion) Counterclaims Statute of
Limitations is three [3] years, Cal. Code Civ. Proc. § 338(c), Strasberg v. Odyssey Group, Inc.,
51 Cal.App.4th 906,916 (1996).
10
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D. Taitz' s 11th and 12th Counterclaims are all time barred as the Statute
of limitations is one (1) year. 21 Even if within the statutory time, they were legal
subpoenas issued on April 26, 2010 for Taitz's high relevant PayPal records and
issued on January 23, 2010, for the Orange County Sheriffs Department Report.
her PayPal donation account affected by Ostella and her police report accusing on
Ostella. Ostella' s Attorney filed them, properly redacted, with the District Court
in this action on May 4, 2011. (See Dkt. #190-4, 190-5, and 190-6), and were not
19
CA Code Civ. Proc., § 340(c), Deutsch v. Turner Corp. 324 F.3d 692, 717 (9th Cir. 2003), cert.
den. (2003).
2
°CA Code Civ. Proc. , § 340(c), Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011).
21
CA Code Civ. Proc. , § 340(c), Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011).,
Deutsch v. Turner Corp. (9th Cir. 2003) 324 F.3d 692, 717, cert. den. (2003).
11
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dismissed. 22 Even if not time barred, DOFF did not exist when Ostella bought the
domains. Taitz's claims are unfounded because there was "nothing" to take over.
absurd and time barred. 23 Criticisms of Taitz circulate the Internet for years.
the Circuit Court lacks Subject Matter Jurisdiction on Taitz's 7th , 27 th and 28 th
Counterclaims, as if fully pled herein. Therefore, the District Court and this Court
lack Subject Matter Jurisdiction over Taitz's 7th, 11th, 12th, 23rd, 27th, and
24
28th Counterclaims and Taitz's, 3rd Third Party Complaint, 2nd -4 th claims.
22
The_Statute oflimitations is one (1) year, CA Code Civ. Proc.,§ 340(c), Roberts v. McAfee,
Inc. , 660 F.3d 1156, 1169 (9th Cir. 2011)., Deutsch v. Turner Corp. (9th Cir. 2003) 324 F.3d
692, 717, cert. den. (2003).
23
The Statute of limitations is one (1) year, CA Code Civ. Proc., § 340(c), Roberts v. McAfee,
Inc., 660 F.3d 1156, 1169 (9th Cir. 2011)., Deutsch v. Turner Corp. (9th Cir. 2003) 324 F.3d
692, 717, cert. den. (2003).
24
Ruiz, 824 F.3d at 1165 (quoting Costello v. United States, 365 U.S. 265,285, 81 S.Ct. 534, 5
L.Ed.2d 551 (1961) (noting the "fundamental jurisdictional defects which render a judgment
void ... such as lack of jurisdiction over the person or subject matter").
12
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Congress intended to 'borrow' the limitations period from the closely analogous
action under state law." 26 Federal courts consult the relevant state statute-of-
limitations period for fraud claims, which are closely analogous to false-
17th, 18 th , and 19th counterclaims have a three (3) year Statute of Limitations and
are time barred. Even if not barred by time, as they each argue the same
allegations, under the Lanham Act, 15 U.S.C. § 1125 and under California law,
while lacking the factual timeline or supporting detail. Also, when Taitz registered
the "DOFF" letters at the USPTO it did so on February 26, 2016 with no filing
basis stated almost 8 years after Ostella bought the domains and launched the
website. There wasn't any "DOFF" in California registry until later in 2009.
25
Ostella cannot be sued for Cybersquatting, 15 U.S .C. 1125(d) when there is a count for Unfair
Competition, see Counterclaim 15, Petroliam Nasional Berhad (Petronas) v. GoDaddy.com, 737
F.3d 546 (9th Cir. 2013 ).
26
Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 836 (9th Cir. 2002) (citing Reed v.
United Transp. Union, 488 U.S . 319, 323-24 (1989)).
27 See, e.g. , Karl Storz Endoscopy-Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848, 857 (9th Cir.
1992) (applying California's three-year fraud statute of limitations to Lanham Act claims). Two
Pesos v. Taco Cabana, Inc., 505 U.S. 763 , 785, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (the
Lanham Act "codified, among other things, the ... common-law tort[] of . ... trademark
infringement"). "The courts have uniformly held that common law and statutory trade-mark
infringements are merely specific aspects of unfair competition", New West Corp. v. NYM Co. ,
595 F.2d 1194, 1201 (9th Cir. 1979).
13
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elevate the literal significance of "DOFF" or assert its distinctiveness while the
Albeit, Taitz has avoided being deposed and not complied with document
production nor interrogatory requests. The 15 th , 16th , 17th , 18th , and 19th
counterclaims are time barred, 28 and the District Court should be affirmed.
Statute of Limitations is two (2) years. 29 Even if not time barred, Taitz does not
show that there was a binding agreement. Taitz claims unjust enrichment despite
access to allow an investigation after Taitz' s police reports. The District Court
should be affirmed. 30
28
See Ruiz, supra n. 21
29
Cal. Code Civ. Proc. § 339(1 ). Unjust enrichment is "not a cause of action ... or even a
remedy, but rather a general principle, underlying various legal doctrines and remedies. It is
synonymous with restitution." McBride v. Boughton 123 Cal.App.4th 379, 387, 20 Cal.Rptr.3d
115 (2004).
30 Paracor Fin., Inc. v. Gen. Elec. Capital Corp.. 96 F.3d 1151, 1167 (9th Cir.1996).A claim for
unjust enrichment is properly pied as a claim for a contract implied-in-law. It "does not lie when
an enforceable, binding agreement exists defining the rights of the parties." Boon Rawd Trading
Int'I Co. v. Paleewong Trading Co., 688 F. Supp. 2d 940, 956 (N.D. Cal. 2010) (dismissing an
unjust enrichment claim because the plaintiff did not "either allege that the parties' rights were
not squarely set out in a binding agreement, or allege that any express contract was procured by
fraud or was ineffective for some reason").
14
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time barred as the statute of limitations is two (2) years. 31 Even if not barred the
that Taitz asked Ostella to set-up a PayPal account using a name already owned by
Ostella as Ostella owned the domain defendourfreedoms and its suffixes. 33 It was
.com, .org, and .net. Taitz has not used Ostella's domain names or biogs/websites
(1) year. Cal. Code Civ. Proc. § 340(3). Malicious Prosecution claim is barred as
the Statue of Limitations is two (2) years, Cal. Code Civ. Proc. § 335.l; unless you
31
Cal. Code Civ. Proc. § 335.1., Soliman v. CVS RX Services, Inc. , 570 F. App'x 710 (9th Cir.
2014), unpublished Opinion, (Under California law, there is a two-year statute of limitations for
intentional infliction of emotional distress claims. Cal. Civ. Proc. Code § 3 35 .1 ).
32Cal. Code Civ. Proc. § 339(1). Stutz Motor Car of Arn. v. Reebok Int'l. 909 F.Supp. 1353,
1361 (C.D.Cal.1995).
33
Defend our Freedoms Foundation, Inc. ["DOFF"] was never set-up as a charitable foundation
and was not incorporated by Taitz until February 19, 2009, after Taitz was using Ostella's
website/blog defendourfreedoms.org.
34
This Abuse of Process is a duplicate Counterclaim, see Taitz and DOFF's 6thCounterclaim.
15
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are an attorney, then it is one (1) year, Cal. Code Civ. Proc. § 340(6). You cannot
sue for these two torts until litigation ends and you are the winning party. 35 Taitz
fails to establish the elements for malicious prosecution. 36 These counterclaims are
premature. This case is set for trial on March 2018 just 90 days away. District
Act and Release of Confidential Info is time barred as the Statute of Limitations is
three (3) years.37 Taitz fails to state requisite elements. The District Court should
be affirmed.
District Court's 12/13/2017 Order is not a final Judgment Order as it did not
dispose of all parties and/or all claims. The Order does not meet the Collateral
35
Daniels v. Robbins, (2010) 182 Cal. App. 4th 204.
36
"' Malicious prosecution is a disfavored action. Estate of Tucker v. Interscope Records. 515
F.3d 1019, 1030 (9th Cir. 2008). This is due to the principles that favor open access to the courts
for the redress of grievances."' (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478,
493 (78 Cal.Rptr.2d 142]. [T]he elements of the [malicious prosecution] tort containThree
elements must be pleaded and proved to establish the tort of malicious prosecution: ( 1) A lawsuit
was "' "commenced by or at the direction of the defendant [which] was pursued to a legal
termination in .. . plaintiffs . .. favor""'; (2) the prior lawsuit "'"was brought without probable
cause""'; and (3) the prior lawsuit "'"was initiated with malice.""' Citi-Wide Preferred Couriers,
Inc. v. Golden Eagle Ins. Corp. (2003) 114 Cal.App.4th 906, 911 (8 Cal.Rptr.3d 199].
Cal. Civ. Code§ 3426.6. California adopted the Uniform Trade Secrets Act by enacting Cal.
37
Civ. Code § 3426.6. states that "an action for misappropriation must be brought within three
years after the misappropriation is discovered or by the exercise of reasonable diligence should
have been discovered."
16
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question or resolve an important issue completely separate from the merits of the
Appeal by Taitz even fails by the requirements of Fed. R. Civ. P. 54(b). The
Taitz waited 8-1/2 years to bring forth all her CCffPC claims, and should
V. CONCLUSION:
For the reasons stated above, Ostella's Motion for Summary Affirmance
should be granted, the District Court's Order must be Affirmed and Appellees
awarded Attorney fees and Costs.
Respectfully submitted,
Dated: December 29, 2017 s/J.B. Lorenzo
Jose B. Lorenzo
Attorney for Appellee, Lisa Ostella
38
McElmurry v. US. Bank Nat'l Ass'n, 495 F.3d 1136, 1140 (9th Cir. 2007) (citing Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370,375, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987)).
39
Coopers & Lybrand v. Livesay, 437 U.S. 463 , 468 (1978) (citations omitted); see also
Mohawk Indus .. Inc. v. Carpenter, No. 08-678, - S. Ct.-, 2009 WL 4573276 (Dec. 8 2009);
Englert v. MacDonnell, 551 F.3d 1099, 1103 (9th Cir. 2009); Lazy Y Ranch Ltd. v. Behrens, 546
F.3d 580, 587 (9th Cir. 2008).
40
The Ninth Circuit explained that Federal Appellate Courts can review two (2] kinds of Rulings;
final decisions on the merits quoting 28 U.S.C. § 1291; Cassirer v. Kingdom o(Spain, 616 F.3d
1019, 1024 (9th Cir. 2010); and a small class of collateral orders quoting Will v. Hallock, 546
U.S. 345, 349, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006) (quoting Behrens v. Pelletier, 516 U.S.
299,305, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)). See Digital Equipment Corp. v. Desktop
Direct, Inc., 511 US. 863 ,868 (1994) (quoting Richardson-Merrell v. Koller, 472 U.S. 424, 436
(1985)); See also Will, 546 U.S. at 349, (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc. , 506 U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993)).
17
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CERTIFICATE OF SERVICE
I, Jose B. Lorenzo, hereby certify that a true and correct copy of Appellees-
Plaintiffs Motion to Dismiss Appellants Orly Taitz and Defend our Freedoms
Foundations, Inc.'s Appeals and Affirm the District Court's Order was served this
29 day of December, 2017, upon the following electronically through the ECF
Filing System.
18