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Case 8:11-cv-00485-AG -AJW Document 298 #:7045

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Kim Schumann, Esq., State Bar #170942 Jeffrey P. Cunningham, Esq., State Bar #151067 Peter Cook, Esq., State Bar #232742 SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 Costa Mesa, CA 92626 Telephone (714) 850-0210 Facsimile (714) 850-0551 Email: pcook@srrlawfirm.com Attorneys for Defendants ORLY TAITZ and LAW OFFICES OF ORLY TAITZ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

LISA LIBERI and PHILIP J. BERG, ) ESQUIRE and THE LAW OFFICES OF ) 12 PHILIP J. BERG and EVELYN ADAMS) a/k/a MOMMA E and LISA M. ) 13 OSTELLA and GO EXCEL GLOBAL, )
11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) Plaintiffs, ) ) vs. ) ) ORLY TAITZ, a/k/a DR. ORLY TAITZ, ) a/k/a LAW OFFICES OF ORLY TAITZ; ) a/k/a WWW.ORLYTAITZESQ.COM ) a/k/a WWW.REPUBX.COM a/k/a ) ORLY TAITZ, INC. and DEFEND OUR ) FREEDOMS FOUNDATIONS, INC. ) and YOSEF TAITZ and THE SANKEY ) FIRM and SANKEY INVESTIGA) TIONS, INC. and NEIL SANKEY and ) JAMES SUNQUIST and ROCK SALT ) PUBLISHING and LINDA SUE ) BELCHER a/k/a LINDA S. BELCHER ) a/k/a LINDA STARR; a/k/a ) NEWWOMENSPARTY a/k/a ) STITCHENWITCH a/k/a EVA BRAUN ) a/k/a WEB SERGEANT a/k/a KATY ) a/k/a WWW.OBAMACITIZENSHIP ) DEBATE.ORG and EDGAR HALE ) a/k/a JD SMITH; and CAREN HALE; ) and PLAINS RADIO NETWORK, a/k/a ) PLAINS RADIO NETWORK, INC. ) a/k/a PLAINS RADIO; and BAR H ) FARMS; and KPRN AM 1610; and ) DOES 1 through 200 Inclusive, ) ) Defendants. ) -i-

Case No. 8:11-CV-00485-AG (AJW) Hon. Andrew Guilford Courtroom 10D NOTICE OF MOTION AND MOTION OF DEFENDANT, LAW OFFICES OF ORLY TAITZ, TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT PURSUANT TO FRCP 12(b)(6) [FILED CONCURRENTLY WITH DECLARATION REGARDING COMPLIANCE WITH LOCAL RULE 7-3, MOTION TO DISMISS, AND REQUEST FOR JUDICIAL NOTICE] Date: Time: Place: August 22, 2011 10:00 a.m. Courtroom 10D May 4, 2009 March 5, 2012 May 21, 2012 June 5, 2012

Date Action Filed: Discovery Cut-Off: Final Pre-Trial Conf.: Trial Date:

DEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Case 8:11-cv-00485-AG -AJW Document 298 #:7046

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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 22, 2011 at 10:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 10D of the United States District Court for the Central District of California (Southern Division) located at 411 West Fourth Street, Santa Ana, CA, Defendant, LAW OFFICES OF ORLY TAITZ (LAW OFFICES), will and does hereby apply pursuant to Federal Rules of Civil Procedure (FRCP), Rule 12(b)(6) and other applicable statutes and case law for an Order dismissing the First Amended Complaint (FAC) of Plaintiffs, LISA LIBERI, LISA M. OSTELLA , PHILIP J. BERG, ESQUIRE, THE LAW OFFICES OF PHILIP J. BERG, and GO EXCEL GLOBAL (collectively Plaintiffs), as Plaintiffs have failed to state any claim against Moving Defendant for the following reasons: (1) Alleged Defendant, LAW OFFICES, is not an actual, existing business

entity (corporation, partnership, etc.) and therefore cannot be sued herein; and (2) Counsel for moving Defendants herein has met and conferred with

Plaintiffs counsel, Philip J. Berg, Esq. (who is also a Plaintiff), with regard to the non-existence of LAW OFFICES and that it is therefore not a proper Defendant. Plaintiffs counsel has agreed that LAW OFFICES is not a proper Defendant and that Plaintiffs will dismiss it. (See, Local Rules, Rule 7-3 correspondence attached as Exhibits A-D hereto.) However, as of the date of this Motion, Plaintiffs have not dismissed LOOT. Accordingly, LAW OFFICES brings this motion in an abundance of caution to dismiss the FAC as against it with prejudice. Defendant has complied with Local Rules, Rule 7-3 and has met and conferred with Plaintiffs counsel before filing this Motion. This Motion to Dismiss pursuant to FRCP, Rule 12(b)(6) will be based upon this Notice, the attached Memorandum of Points and Authorities, the Courts file in

-iiDEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Case 8:11-cv-00485-AG -AJW Document 298 #:7047

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this matter, and all other tangible and/or testimonial evidence provided at the hearing on this matter.

DATED: July 19, 2011

SCHUMANN, RALLO & ROSENBERG, LLP

By:

/s/ - Peter Cook ___________________________ Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Peter Cook Esq. Attorneys for Defendants, ORLY TAITZ and LAW OFFICES OF ORLY TAITZ

-iiiDEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Case 8:11-cv-00485-AG -AJW Document 298 #:7048

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Defendant, LAW OFFICES OF ORLY TAITZ, Is Not an Actual, Existing Business Entity Plaintiffs filed their First Amended Complaint (FAC) on June 17, 2011. One of the Defendants named in it is Defendant, Law Offices of Orly Taitz is a business owned and operated by Orly Taitz with a business address of 29839 S. Margarita Pkwy., Rancho Santa Margarita, CA 92688. (FAC, 10.) However, LAW OFFICES is not an actual and existing business entity such as a corporation, partnership, etc. It is not even a fictitious business name used by Defendant, ORLY TAITZ (Taitz). (As discussed below, a fictitious business name is not a business entity in and of itself and is not a proper plaintiff or defendant in a lawsuit.) B. Plaintiffs Have Agreed to Dismiss Defendant, LAW OFFICES, But Have Not Yet Done So Moving Defendants counsel has met and conferred with Plaintiffs counsel in compliance with Local Rule, Rule 7-3 with regard to this motion. (See, Local Rules, Rule 7-3 correspondence attached as Exhibits A-D hereto.) As a result of such conferring, Plaintiffs counsel has agreed to dismiss Defendant LAW OFFICES but has not yet done so. II. SUMMARY OF LAW UNDER FRCP RULE 12(b)(6) FRCP Rule 12(b)(6) applies where there is a failure to state a claim upon which relief can be granted. A complaint is properly dismissed under a Rule 12(b)(6) motion when there is an absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept. (1990) 901 F.2d 696, 699 (9th Cir.). On a Rule 12(b)(6) motion, the Court does not need to accept as true conclusory allegations ... or unreasonable inferences. Transphase Sys. v. Southern Cal. Edison Co. (1993) 839 F. Supp. 711, 718 (C.D. Cal.) (citing
-1DEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Case 8:11-cv-00485-AG -AJW Document 298 #:7049

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Schwarzer, Tashima, and Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE TRIAL, 9:221 at page 9-41). [M]ore than the bare assertion of legal conclusions is necessary to overcome a Rule 12(b)(6) motion to dismiss. Scheid v. Fanny Farmer Candy Shops, Inc. (1988) 859 F.2d 434, 436 (6th Cir.); (emphasis added.). A court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell v. Golden State Warriors (2001) 266 F.3d 979, 988 (9th Cir.); W. Mining Council v. Watt (1981) 643 F.2d 618, 624 (9th Cir.). A complaint must allege enough facts to state a claim that is plausible on its face. Graehling v. Village of Lombard (1995) 58 F.3d 295, 297 (7th Cir.); Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 570. When this standard has not been met, the case must be dismissed. Bell Atlantic Corp., supra. III. LEGAL ARGUMENT A. AS AGREED BY PLAINTIFFS, DEFENDANT LAW OFFICES OF ORLY TAITZ IS NOT A BUSINESS ENTITY AND IS THUS NOT A PROPER DEFENDANT Defendant, LAW OFFICES OF ORLY TAITZ, is not an actual, existing business entity (corporation, partnership, etc.). It is not even a fictitious business name used by Taitz. Relatedly, Plaintiffs do not allege the legal existence or form of entity of LAW OFFICES in their FAC. (FAC, 10.) "Use of a fictitious business name does not create a separate legal entity." Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App. 4th 1342, 1348. Therefore, "[a] civil action can be maintained only against a legal person[and]a nonentity is incapable of being sued. Where a suit is brought against an entity which is legally nonexistent, the proceeding is void ab initio and its invalidity can be called to the attention of the court at any state of the proceeding." Oliver v. Swiss Club Tell (1963) 222 Cal. App. 2d 528, 537. "Accordingly, it is a corollary to this rule that the objection that a plaintiff or defendant is nonexistent is not subject to
-2DEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

Case 8:11-cv-00485-AG -AJW Document 298 #:7050

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waiver, as in the case of misnomer or lack of legal capacity, because the defect is jurisdictional." Id. at 538. Where Defendant LAW OFFICES is not an actual, existing business entity it cannot be sued and is not a proper Defendant. Pinkerton's, supra, 49 Cal.App. 4th at 1348. Oliver, supra, 222 Cal. App. 2d at 537. Accordingly, Defendant LAW OFFICES should be dismissed with prejudice herein. IV. CONCLUSION For the reasons stated herein, the First Amended Complaint, as to Moving Defendant LAW OFFICES OF ORLY TAITZ, should be dismissed with prejudice pursuant to FRCP Rule 12(b)(6).

DATED: July 19, 2011

SCHUMANN, RALLO & ROSENBERG, LLP

By:

/s/-Peter Cook _______________ Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Peter Cook Esq. Attorneys for Defendants, ORLY TAITZ and LAW OFFICES OF ORLY TAITZ

-3DEFENDANT, LAW OFFICES OF ORLY TAITZS MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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