Liberi v Taitz - Plffs Opp to Reed Def Motion to Dismiss Doc 391-0

8/4/2019 Liberi v Taitz - Plffs Opp to Reed Def Motion to Dismiss Doc 391-0

1/44

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Philip J. Berg, EsquirePennsylvania I.D. 9867

LAW OFFICES OF PHILIP J. BERG555 Andorra Glen Court, Suite 12

Lafayette Hill, PA 19444-2531

Telephone: (610) 825-3134

E-mail: [email protected] Attorney in pro se and for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA,

SOUTHERN DIVISION

LISA LIBERI, et al,

Plaintiffs,

vs.

ORLY TAITZ, et al,

Defendants.

:::

:::::::::::::

::

CIVIL ACTION NUMBER:

8:11-cv-00485-AG (AJW)

PLAINTIFFS OPPOSITION TO

THE REED DEFENDANTS

MOTION TO DISMISS, DOCKET

NO. 381

Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.

Location: Courtroom 10D

Plaintiffs, by and through their undersigned counsel, Philip J. Berg, Esquire

file the within Response in Opposition; Memorandum of Points and Authorities

and Declarations in Opposition to Defendants, Reed Elsevier, Inc., LexisNexis

Risk and Information Analytics Group, Inc., LexisNexis, Inc., LexisNexis Risk

Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a

Accurint, and LexisNexis Group, Inc. [the Reed Defendants] Motion to Dismiss

[MTD]. In support hereof, Plaintiffs aver the following:

Liberi, et al, Plaintiffs Opp. To the Reed Defendants MTD 09.24.2011

Case 8:11-cv-00485-AG -AJW Document 391 Filed 09/25/11 Page 1 of 6 Page ID#:9316


2/44

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The Reed Defendants have waived their defenses to Plaintiffs 12

through 16 Cause of Actions;

Plaintiffs have properly pled their Causes of Action against the Reed

Defendants;

Plaintiff Lisa Liberi was a customer of the Reed Defendants when

they sold her private information to Taitz, Yosef Taitz and the Sankey

Defendants; and

Defendants Orly Taitz, Yosef Taitz and the Sankey Defendants have

already admitted to obtaining Plaintiffs Lisa Liberi and Lisa Ostellas

private information, credit reports, etc. from LexisNexis, ChoicePoint

Inc. and Intelius.

1. Defendant Orly Taitz [Taitz] as an attorney threatened to take Philip

J. Berg, Esquire [Berg] down and to do so she stated she was going to destroy

his paralegal, Plaintiff Lisa Liberi [Liberi], and get rid of her. Taitzs threat was

due to Liberi refusing to assist Taitz in her litigation, which Liberi later learned

was a scam. During this same time, Plaintiff Lisa Ostella [Ostella] told Taitz to

find another web master as Ostella refused to lie and substantiate Taitzs false

statements of hacking.

2. This case is not about in-fighting; it is not about President Obama

it is not about Politics; nor are any of the Plaintiffs part of a venomous political




3/44

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

clique; nor do the Plaintiffs and Defendants have histories of working together

except for Taitz and Ostella for a very short few months.

3. In or about April 2009, Taitz as an attorney and a Dentist through the

Law Offices of Orly Taitz [L.O.O.T.], Orly Taitz, Inc., and as President of

Defend our Freedoms Foundations, Inc. [DOFF] hired or sought Neil Sankey

Todd Sankey, Sankey Investigations, Inc., The Sankey Firm [Sankey

Defendants] to obtain very private data of Liberi and Ostella; and to conduc

illegal background checks; obtain credit and financial data and obtain other very

private information of Liberi and Ostella.

4. The private data obtained by the Sankey Defendants and Taitz from

the Reed Defendants was Liberi and Ostellas Social Security numbers; dates of

birth; places of birth; fathers names; relatives names; siblings names; addresses

unlisted phone numbers; childrens names; spouses names, spouses dates of birth;

spouses Social Security numbers; financial records; credit reports; medical records

sealed Court information; and other primary identifying information. In fact

Plaintiff Liberi does not own real estate, yet the Reed Defendants and Defendant

Intelius supplied Plaintiff Liberis home address and Liberi and Ostellas unlisted

phone numbers.




4/44

4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5. It was later learned that Taitz and the Sankey Defendants utilized

LexisNexis, ChoicePoint, Accurint [the Reed Defendants] and Defendant

Intelius to obtain Plaintiffs Ostella and Liberis private data.

6. Defendant Yosef Taitz is the hands-on CEO of Daylight. Mr. Taitz

was involved with the design of Daylights programs, software and hardware. Mr

Taitz and Daylights toolkits provide programming interface applications which

are built into the design and used with Oracle. The design allows for remote

application execution, cross site scripting, remote interface and injection attacks,

which are vulnerabilities that Oracle, Daylight and Mr. Taitz were aware of.

7. Defendants Yosef and Orly Taitz used their expertise with the

Daylight tools and Oracle flexibilities to access the Reed Defendants databases

where they also obtained Plaintiffs Liberi and Ostellas private data. Mr. Taitz in

his Motion to Dismiss in his individual capacity stated he could not be held liable

as any damages caused to the Plaintiffs would be the responsibility of Defendant

Daylight Chemical Systems, Inc.

8. Defendants Taitz; DOFF; L.O.O.T., have admitted in Court filings

that they obtained Plaintiffs private data directly from the Sankey Defendants; the

Reed Defendants and Defendant Intelius. See DOFFs Motion to Dismiss [MTD]

filed July 11, 2011, appearing as Docket No. [DN] 283; Orly Taitzs MTD filed

July 11, 2011, DN 280; and L.O.O.T.s MTD filed September 14, 2011, DN 376




5/44

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and their Amended MTD filed September 16, 2011, DN 377. Taitz stated that the

Sankey Defendants, Reed Defendants and Defendant Intelius, Inc. are responsible

for Plaintiffs damages. Taitz also published all over her website that she obtained

the private data from LexisNexis, ChoicePoint and Intelius. See DN 190 through

190-27 filed May 20, 2011.

9. In the Reed Defendants MTD they claim Plaintiffs have failed to state

a claim in which relief can be granted. The Reed Defendants also moved to join

Oracles Motion to Dismiss claiming they are in the same position as Oracle,

which simply is not the case. The Reed Defendants also attempt to claim they

only provided public records to Taitz and the Sankey Defendants.

10. The Reed Defendants do utilize Oracle databases and is confirmed by

the Reed Defendants seeking Oracle personnel to run their databases, see the

employment list located online at

https://reedelsevier.taleo.net/careersection/50/jobdetail.ftl?lang=en&job=LEX003

Q5

11. As outlined in Plaintiffs Opposition; Brief and Declarations of Lisa

Liberi, Lisa Ostella and Philip J. Berg, Esquire, the Reed Defendants have not met

their burden to have Plaintiffs Complaint Dismissed.

12. Plaintiffs Opposition is based upon their Opposition, the attached

Memorandum of Points and Authorities in Support hereof; Declarations of Philip J




6/44

6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Berg, Esquire; and Lisa Liberi filed concurrently herewith; upon records on file

with this Court and such further oral and/or documentary evidence that may be

presented at the time of the Hearing.

WHEREFORE, for the reasons stated herein, Plaintiffs respectfully request

this Court to Deny the Reed Defendants Motion to Dismiss. In the alternative

Plaintiffs Request Leave to Amend their Complaint.

Respectfully submitted,

Philip J. Berg, Esquire

Pennsylvania I.D. 9867

LAW OFFICES OF PHILIP J. BERG

555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531

Telephone: (610) 825-3134

E-mail: [email protected]

Attorney in Pro Se and Counsel fo

Plaintiffs

Dated: September 25, 2011 /s/ Philip J. Berg




7/44

i

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS....i-ii

TABLE OF AUTHORITIES.iii-viii

I. STANDARD OF REVIEW ......1-2

II. THE REED DEFENDANTS ALLEGES

COUNSEL FAILED TO CONDUCT

RUDIMENTARY RESEARCH andINCORRECTLY NAMED SOME OF

THE REED DEFENDANTS.............................................................2-3

III. PLAINTIFFS CAUSES OF ACTIONS 12

THROUGH 16 ARE ADMITTED BY THE

REED DEFENDANTS WHO WAIVED ANY

DEFENSE THERETO......................................................................3-4

IV. PLAINTIFFS CLAIMS ARE SUFFICIENTLY

PLED.....4-9

V. PLAINTIFFS 1st THROUGH 3rd CAUSE OF

ACTIONS........................................9-15

A. Plaintiffs 1st

Cause of Action Willful

and Intentional Intrusion upon Plaintiffs

Solitude, Seclusion and Private Affairs

Invasion of Privacy....9-13

B. Plaintiffs Second Cause of Action,

Public Disclosure of Private Facts

is Properly Pled against the Reed

Defendants.......13-14

MEMORANDUM OF POINTS AND AUTHORITIES..1-25

Case 8:11-cv-00485-AG -AJW Document 391-1 Filed 09/25/11 Page 1 of 8 Page ID#:9322


8/44

ii

TABLE OF CONTENTS - Continued

Page(s)

C. Plaintiffs 3rd

Cause of Action False Light

VI. PLAINTIFFS 5th

, 6th

and 17th

CAUSE OF ACTION

WILL PREVAIL...15-17

VII. PLAINTIFFS 8th CAUSE OF ACTION..........17-18

VIII. PLAINTIFFS 18th CAUSE OF ACTION,

UNFAIR BUSINESS PRACTICE18-21

IX. PLAINTIFFS 9th and 19th CAUSES OF

ACTION....21-23

X. PLAINTIFFS 20th CAUSE OF ACTION,

Invasion of Privacy..14-15

RES IPSA LOQUITOR....................................23-25

XI. CONCLUSION..25



9/44

iii

TABLE OF AUTHORITIES

CASES Page(s)

ABC Internat. Traders, Inc. v Matsushita Electric Corp., (1997)

Aisenson v. Am. Broad. Co., Inc., (1990)

220 Cal.App.3d 146, 269 Cal.Rptr. 379, 382-383...................................................14

American Ass'n of Naturopathic Physicians v. Hayhurst,

227 F.3d 1104, 1106 (9th Cir. 2000).4

Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569,

27 Cal. Rptr. 3d 863 (1st Dist. 2005)...15

Anti-Defamation League of B'nai B'rith v. Superior Court, (1998)

67 Cal.App.4th 1072, 1078-1079, 79 Cal. Rptr.2d 597...17

Ashcroft v. Iqbal, (2009) 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)..2, 9

Bank of the West v. Superior Court, (1992)

2 Cal.4th 1254, 1266 [10 Cal. Rptr. 2d 538, 833 P.2d 545]....20

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,167 L.Ed.2d 929 (2007).2, 8, 9

Bose Corp. v. Consumers Union of United States, Inc., (1984)

466 U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502...14

Brown v. Poway Unified School Dist., (1993)

4 Cal.4th 820, 825826 [15 Cal. Rptr. 2d 679, 843 P.2d 624]24

Byrne v. Boadle, (1863) 159 Eng. Rep. 29924

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,

(1999) 20 Cal.4th 163, 181 [83 Cal. Rptr. 2d 548, 973 P.2d 527]..20

Christensen v. Superior Court, (1991)

54 Cal. 3d 868 [2 Cal. Rptr. 2d 79].23

14 Cal.4th 1247, 1270 [61 Cal. Rptr. 2d 112, 931 P.2d 290]...20



10/44

iv

TABLE OF AUTHORITIES - Continued

CASES Page(s)

Eastwood v. Superior Court of Los Angeles County,

149 Cal. App.3d 409, (Cal. Ct. App. 1983).14

Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120

[118 Cal. Rptr. 2d 240] (3d Dist. 2002)...23

Fahizah Alim v. Superior Court of Sacramento County,

185 Cal. App. 3d 144 (1986)...17

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...18

Guillory v. Godfrey, 134 Cal. App. 2d 628

[286 P.2d 414] (2d Dist. 1955)22

Hall v. Time Inc., (2008) 158 Cal.App.4th 847, 852 [70 Cal. Rptr.3d 466]20

Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657, 686, (1989) 109 S.Ct. 2678, 105 L.Ed.2d 562..14

Hassoldt v. Patrick Media Group, Inc.,

84 Cal. App. 4th 153 [100 Cal. Rptr. 2d 662] (2d Dist.2000).23

Hill v. National Collegiate Athletic Assn. (1994)

7 Cal. 4th

1, [26 Cal. Rptr. 2d 834]..9, 11

International Federation of Professional & Technical Engineers,

Local 21, AFL-CIO v. Superior Court, (2007)

42Cal.4th 319, 338 [64 Cal. Rptr. 3d 693, 165 P.3d 488]...........11

In the Matterof Reed Elsevier, Inc. and Seisinet Inc. Corporations,

FTC File No. 052-3094, Docket No. C-4226

Court Order of July 29, 200812, 22



11/44

v


CASES Page(s)

Jennifer M. v. Redwood Women's Health Ctr.,

Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843,

23 L.Ed.2d 404 (1969)...1

Kasky v. Nike, Inc., (2002) 27 Cal.4th 939, 949

[119 Cal. Rptr. 2d 296, 45 P.3d 243]...20

Kinsey v. Macur, (1980) 107 Cal. App. 3d 264 [165 Cal. Rptr. 608].14

Klein & Associates Political Relations v.

Port Arthur Independent School Dist.,

92 S. W. 3d 889 (Tex. App. Beaumont 2002)15

Leibert v. Transworld Systems, Inc., 32 Cal. App. 4th

1693st

Levy-Zentner Co. v. Southern Pac. Transportation Co., (1977)

74 Cal.App.3d 762...24

Lugtu v. California Highway Patrol (2001)

26 Cal.4th 703, 716 [110 Cal. Rptr. 2d 528, 28 P.3d 249]..10

McCloud v. Homeside Lending,

309 F. Supp. 2d 1335 (N.D. Ala. 2004)...14

Mendiondo v. Centinela Hosp. Med. Ctr.,

521 F.3d 1097 (9th

Cir. 2008)1

Neary v. Regents of University of California,

(2001) 88 Cal.App. 4th 81 .....16, 17

[39 Cal. Rptr. 2d 65] (1 Dist. 1995).....9

Lucas v. Dep't of Corr., 66 F.3d 245 (9th Cir.1995).....2

185 Cal. App. 3d 1136 [230 Cal. Rptr. 281] (1st Distr. 1986).....13, 16, 18



12/44

vi


CASES Page(s)

Nicholson v. McClatchy Newspapers, (1986)

Operating Engineers Local 3 v. Johnson,

People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., (1995)

111 Nev. 615, 895 P.2d 1269, 1280-1281...12

Pioneer Electronics (USA), Inc. v. Superior Court, (2007)

40 Cal.4th 360, 370 [53 Cal. Rptr. 3d 513, 150 P.3d 198]..11

Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th

96523

Ross v. Creel Printing & Publishing Co.,

100 Cal. App. 4th

736 [122 Cal. Rptr. 2d 787] (1st Dist. 2002)22, 23

Schulz v. Neovi Data Corp., (2005) 129 Cal. App. 4th 121

Schwartz v. Thiele, 242 Cal. App. 2d 799

[51 Cal. Rptr. 767] (2d Dist. 1966).9, 13, 14

Shahinian v. McCormick, (1963) 59 Cal.2d 554.24

Shulman v. Group W. Productions, Inc., (1998)

18 Cal. 4th

200, 217 [74 Cal. Rptr. 2d 843]....12

Smith v. Los Angeles Bookhinders Union No. 63,133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955)13, 16, 18

Smith v. National Broadcasting Co.,

138 Cal. App. 2d 807807 (2nd Dist. 1956)...9

110 Cal. App. 4th 180 [1 Ca. Rptr. 3d 552] (1st Dist. 2003)...15

Ochoa v.Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr. 661]...22, 23

177 Cal.App.3d 509, 514, fn. 2, 223 Cal.Rptr. 58....17



13/44

vii


CASES Page(s)

Sollberger v. Wachovia Secs, LLC,

No. SACV 09-0766-AG (ANx).....8

Spackman v. Good, (1966) 245 Cal. App. 2d 518 [54 Cal. Rptr. 78]..22

State Rubbish CollectorsAssn v. Siliznoff, (1952)

38 Cal. 2d 330 [240 P. 2d 282]....22

Tarasoff v. Regents of University of California (1976)

17 Cal.3d 425, 434435 [131 Cal. Rptr. 14, 551 P.2d 334]9, 10

Taus v. Loftus, (2007) 40 Cal. 4th 683 [54 Cal. Rptr. 3d 775]13

Timperley v. Chase Collection Service,

272 Cal. App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969)13, 14

U.S. v. ChoicePoint, Inc., Case No. 06-cv-0198,

FTC File No. 052-3069 (Feb. 15, 2006)......................................................12, 21, 22

U.S. v. ChoicePoint, Inc., Case No. 06-cv-0198,

Supplemental Court Order of October 14, 200912, 22

Witriol v. LexisNexis Group,

2006 WL 1128036 (N.D.Cal. Apr 27, 2006)...17

Ybarra v. Spangard, (1944) 25 Cal.2d 486, 489 [154 P.2d 687]24

STATE STATUTES Page(s)

Business and Professions Code 17200, et. seq....18, 19

Business and Professions Code 17200-17208...19, 20

California Civil Code 1714(a)...9, 10



14/44

viii

TABLE OF AUTHORITIES Continued

STATE STATUTES Page(s)

California Civil Code 1798.53...17

California Civil Code 1798.85...17

California Civil Code 1798.81.5(a)..17

FEDERAL RULES OF CIVIL PROCEDURE Page(s)

Federal Rules of Civil Procedure 88, 9

Federal Rules of Civil Procedure 12(h).4

MISC. Page(s)

6A Cal. Jur. 3d, Assaults and Other Willful Torts 153 (2003)16, 18

Federal Rules of Civil Procedure 12(g)(2).3

Federal Rules of Civil Procedure 12(h)(1).3

Federal Rules of Civil Procedure15(a)(1)..3

Federal Rules of Evidence, 646 Subd. (b)....24

Federal Rules of Civil Procedure 12(b)(2) - (5).3

Federal Rules of Civil Procedure 12(b)(6).1

Federal Rules of Civil Procedure 12(g)..4



15/44

Liberi, et al, Plaintiffs Brief in Support of their Opp to Reed Defendants MTD 09.24.2011 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28




555 Andorra Glen Court, Suite 12


Telephone: (610) 825-3134E-mail: [email protected] Attorney in pro se and for Plaintiffs



SOUTHERN DIVISION

LISA LIBERI, et al,

Plaintiffs,

vs.

ORLY TAITZ, et al,

Defendants.

:::::

:::::::::


8:11-cv-00485-AG (AJW)

PLAINTIFFS MEMORANDUM OF

POINTS AND AUTHORITIES

Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D

I. STANDARD OF REVIEW:

1. Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate only where the

Complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal

theory.Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

Cir. 2008)

For purposes of a Motion to Dismiss [MTD], the Plaintiff's allegations are taken as

true, and the Court must construe the Complaint in the light most favorable to the

Plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404

(1969). To survive a motion to dismiss, a complaint must contain sufficient factua

matter, accepted as true, to state a claim to relief that is plausible on its face. A claim

has facial plausibility when the Plaintiff pleads factual content that allows the Court to



16/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

draw the reasonable inference that the Defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), Bell Atl. Corp. v

Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Leave to

Amend must be Granted unless it is clear that the Complaint's deficiencies cannot be

cured by Amendment.Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995).

II. THE REED DEFENDANTS ALLEGES COUNSEL FAILED TO

CONDUCT RUDIMENTARY RESEARCH and INCORRECTLY

NAMED SOME OF THE REED DEFENDANTS:

2. On Page one [1], fn 1 of Defendants Reed Elsevier, Inc.; LexisNexis

Group; LexisNexis Risk and Information Analytics Group, Inc.; ChoicePoint, Inc.

LexisNexis Risk Solutions, Inc.; and Seisinint, Inc. d/b/a Accurint [The Reed

Defendants] state Counsel for the Plaintiff was notified he had inadvertently incorrectly

named several of the Reed Defendants.

3. Counsel for the Reed Defendants did claim several of the entities were

incorrectly named. See Mr. Bergs Declaration at pgs. 1-3, 3-6 and EXHIBITS A

and B attached to Mr. Bergs Declaration. Mr. Berg promptly responded and notified

counsel that communications and verifications took place with Melinda Meeks, Paralegal

to the Lexis Legal Division, who stated she verified the correct names of the Reed

Defendants and the proper service. See EXHIBITS 15 through 18 attached to the

Declaration of Lisa Liberi and Lisa Liberis Declaration at pgs. 12-13, 35-38.

4. Counsel for the Reed Defendants wanted all Reed Defendants Dismissed

with the exception of Accurint. Defendants counsel stated that Plaintiffs First Amended

Complaint [FAC] only pertained to an Accurint report pulled on the Plaintiffs. Mr



17/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Berg agreed to correct the names of the Defendants, but declined and disputed Counsels

statements. See the Declaration of Philip J. Berg at pgs. 2-3, 5-6 and EXHIBITS A

and B attached thereto. During the Meet and Confer telephone call, counsel for the

Reed Defendants, James McCabe, Esquire, asked if Mr. Berg would Amend his

Complaint, remove all other Reed Defendants and only name Accurint. Again, Mr. Berg

agreed to correct the names of the Defendants, however, refused to dismiss all Reed

Defendants except for Accurint, as more than just an Accurint Report were obtained and

other divisions of the Reed Defendants caused damages to Plaintiffs. See the Declaration

of Philip J. Berg at pgs. 2-3, 3-6, and EXHIBITS A and B attached thereto.

5. Contrary to the Reed Defendants arguments, Mr. Berg did do his proper

investigation and changed the names of the Defendants as instructed by Lexis Legal

Division.

III. PLAINTIFFS CAUSES OF ACTIONS 12 THROUGH 16 ARE

ADMITTED BY THE REED DEFENDANTS WHO WAIVED ANY

DEFENSE THERETO:

6. The Reed Defendants failed to address, respond, or assert any type of

defenses to Plaintiffs Cause of Actions 12 through 16, therefore they must be Admitted.

7. Federal Rules of Civil Procedure [Fed. R. Civ. P.] 12(h)(1) states that a

party waives any defense listed in Rule 12(b)(2)-(5) by (A) omitting it from a motion in

the circumstances described in Rule 12(g)(2); or (B) failing to either (i) make it by

motion under this rule; or (ii) include it in a responsive pleading or in an amendment

allowed by Rule 15(a)(1) as a matter of course.



18/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

8. The Ninth Circuit has construed these provisions strictly, observing that

"[a] fundamental tenet of Federal Rules of Civil Procedure is that certain defenses under

Fed. R. Civ. P. 12 must be raised at the first available opportunity or, if they are not, they

are forever waived." American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d

1104, 1106 (9th Cir. 2000). Under Rules 12(g) and 12(h), the Reed Defendants have

waived any defenses to Plaintiffs Causes of Action 12 through 16 by omitting them from

their initial motion.

IV. PLAINTIFFS CLAIMS ARE SUFFICIENTLY PLED

9. Plaintiffs incorporate by reference pgs. 61-78, 144-186 as if fully set

forth here at length and Cause of Actions 1 through 9 and 12 through 20 as they

relate to the Reed Defendants as if fully set forth here at length.

10. The Reed Defendants states Plaintiffs Complaint is long, does not contain

short statements; includes too many Defendants; and forces the Defendants to wade

through piles of paper to gather what they supposedly did wrong and that Plaintiffs

have failed to plead a cognizable claim against the Reed Defendants. [Reed MTD at pgs

2-9].

11. Plaintiffs broke down their allegations against the Reed Defendants in a

letter dated September 14, 2011 to James McCabe, Esquire. See the Declaration of Mr

Berg. Plaintiffs will do so again here:

12. LexisNexis Group is inadvertently named as LexisNexis Group, Inc. It

appears that LexisNexis Risk Solutions, Inc., who is properly named, owns ChoicePoint

Inc. LexisNexis Group operates LexisNexis, LexisNexis.com and Lexis.com, which



19/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Plaintiff Lisa Liberi had an account with. Mrs. Liberis account allowed her access to the

people finder functions, which gave Social Security numbers; dates of birth; address

information; phone numbers, and other private data. LexisNexis Group through

LexisNexis, LexisNexis.com and Lexis.com offers both front end view, which Mrs

Liberi had and back end view. LexisNexis Group and LexisNexis d/b/a LexisNexis.com

and Lexis.com shows to be a division of Reed Elsevier, Inc. Plaintiffs inadvertently

named LexisNexis, Inc. a division of Reed Elsevier, Inc., which should have been

LexisNexis a division of Reed Elsevier, Inc.

13. LexisNexis Group and LexisNexis have what is called People

Information. In this section, you can obtain the first five [5] numbers of ones Social

Security number; address, date of birth; names used; relatives; phone numbers and other

private data. LexisNexis Group and LexisNexis have Social Security numbers affixed to

Plaintiffs Lisa Liberi [Liberi] and Lisa Ostella [Ostella] which have never belonged

to Plaintiffs; LexisNexis Group and LexisNexis have combined Liberis old and new

Social Security numbers and further endangered her and her family; LexisNexis and

LexisNexis Group have placed incorrect birth dates for Plaintiffs; incorrect addresses;

names; and other incorrect private data, all of which has been uploaded to Equifax.

14. LexisNexis Group and LexisNexis were placed on notice on more than one

occasion regarding the illegal disclosure and incorrect information, with a demand for

corrections. To date, LexisNexis Group and LexisNexis have ignored the information

and demands.



20/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

15. LexisNexis Group and LexisNexis are responsible for wrong information

contained on Plaintiffs Liberi and Ostella. Orly Taitz [Taitz], the Sankey Defendants

and Defendant Yosef Taitz through Defendant Daylight Chemical Information Systems,

Inc. [Daylight] pulled background reports on Plaintiffs Ostella and Liberi through

LexisNexis Group and LexisNexis.

16. Jennifer Jung, Esquire, Corporate Counsel with LexisNexis Group

retaliated against Plaintiff Liberi, cancelled Liberis LexisNexis account and badmouthed

Liberi with false statements and false allegations to her School, Blackstone. For

example, Ms. Jung told Liberis school that Liberi was using her account for commercial

purposes, knowing this information to be completely false. As a result, Liberi was unable

to complete her advance courses and lost money as a result.

17. LexisNexis Group and LexisNexis also furnished Mrs. Liberis California

Drivers License information. Todd Sankey, Neil Sankey, The Sankey Firm, Orly Taitz

and Yosef Taitz through Daylight illegally obtained Mrs. Liberis California Drivers

License information from LexisNexis Group and LexisNexis. Mr. Neil Sankey admitted

this and discussed this on radio shows with other individuals. California Drivers License

information is private and confidential.

18. ChoicePoint, Inc. who Orly Taitz, Yosef Taitz and the Sankey Defendants

obtained credit reports from on Plaintiffs, which again Orly Taitz and Yosef Taitz have

admitted. Mr. Sankey discussed Liberis credit details on a radio show. Defendant

ChoicePoint, Inc. has incorrect information, including but not limited to Social Security

numbers, dates of birth, names and other private data on Plaintiffs Ostella and Liberi.



21/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

ChoicePoint, Inc. was placed on notice on more than one occasion regarding the illegal

disclosure, the incorrect information and the demand for correction. To date

ChoicePoint, Inc. has ignored the information. ChoicePoint, Inc. also uploaded the

incorrect information maintained on Liberi and Ostella to Equifax Credit Reporting

Agency.

19. LexisNexis Risk Solutions, Inc. maintains all files on an individual. In

order to obtain your free file, you are required to write to them, furnish your Drivers

License, Social Security number, address information, etc. Plaintiffs wrote to LexisNexis

Risk Solutions, Inc. seeking their files, however, Plaintiff Ostella only received one

partial file and Plaintiff Liberi never received anything in return. Both Plaintiffs

submitted their requests with proof of delivery. See the Declarations of Ostella and Liberi

filed concurrently herewith.

20. LexisNexis Risk and Information Analytics Group, Inc. and ChoicePoint

Inc. are located on the facsimile cover sheet with the letter addressed to me from Linda

Clark, Esquire, LexisNexis in-house counsel. Linda Clark admitted the events regarding

Plaintiffs and stated that LexisNexis was also a victim. LexisNexis also confirmed that

Neil Sankey was using his son, Todd Sankey with The Sankey Firm, Inc.s account.

Linda Clark admitted that the Sankey Defendants account had been canceled. Linda

Clark refused to take any type of corrective measure and again, ChoicePoint, Inc

maintains incorrect information on Plaintiffs and distributed reports containing private

data of the Plaintiffs to unauthorized third parties.



22/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

21. As for Accurint, named Seisint, Inc. d/b/a Accurint also furnished private

background reports, by Mr. McCabes, Taitzs and Sankeys admissions, on Plaintiffs

Ostella and Liberi. Accurint also maintained incorrect information on Plaintiffs to third

parties who did not have any type of permissible purpose, legal or otherwise, for

obtaining Liberi and Ostellas private data. Accurint also failed to correct the wrong

information and/or provide reports to Plaintiffs.

22. In support of their request for dismissal, the Reed Defendants cite

Sollberger v. Wachovia Secs, LLC, No. SACV 09-0766-AG (ANx). This Court stated

that Plaintiffs had failed to specifically outline specific factual content as to what the

Defendants had done wrong. This Court, dismissed all claims in the Sollberger case

except for the Negligence claim which this Court allowed Sollbergerto amend. With this

Courts ruling, it stripped this Court of jurisdiction as all federal claims were dismissed

Plaintiffs in the case herein have specifically pled what the Reed Defendants have done

wrong that injured the Plaintiffs.

23. Under the notice pleading standard, a Complaint will not be dismissed for

failure to state a claim so long as it puts the Defendant on notice of the gravamen of the

Plaintiffs Complaint and includes a short and plain statement of the claim showing that

the pleader is entitled to relief. See Federal Rules of Civil Procedure [Fed. R. Civ. P.]

8. InBell Atl. Corp. v. Twombly, (2007) 550 U.S. 554, 570, 127 S. Ct. 1955, the Court

held This plausibility standard, while not a probability standard, requires enough

fact to raise a reasonable expectation that discovery will reveal evidence of illegal

agreement.



23/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

24. Plaintiffs have complied with the Fed. R. Civ. P. 8, Iqbal and Twombly

pleading requirements. Plaintiffs have inadvertently incorrectly named some of the Reed

Defendants and therefore, seek Leave to Amend their Complaint or Correct the names of

the Defendants.

V. PLAINTIFFS 1st

THROUGH 3rd

CAUSE OF ACTIONS

25. Plaintiffs incorporate by reference, the previous paragraphs 2 through

24 as if fully set forth here at length.

26. Legally recognized privacy interests are generally of two [2] classes. The

first is the interest in precluding the dissemination or misuse of sensitive and confidential

information otherwise known as informational privacy. Hill v. National Collegiat

Athletic Assn., (1994) 7 Cal. 4th

1, [26 Cal. Rptr. 2d 834];Leibert v. Transworld Systems

Inc., 32 Cal. App. 4th

1693 [39 Cal. Rptr. 2d 65] (1st

Dist. 1995). Informational privacy

encompasses the right to be free from the wrongful publicizing of Plaintiffs private

affairs and activities, which are outside of legitimate public concern. Smith v. National

Broadcasting Co., 138 Cal. App. 2d 807807 (2nd

Dist. 1956), Schwartz v. Thiele, 242 Cal

App. 2d 799 [51 Cal. Rptr. 767] (2d Dist. 1966).

27. Pursuant to Cal. Civ. Code 1714(a), as pled by Plaintiffs in their FAC at

pg. 81, 198, the Reed Defendants had a duty to ensure all data they maintain on

individuals is secure from intrusion, legal or otherwise. [A]s a general principle, a

defendant owes a duty of care to all persons who are foreseeably endangered by his

conduct, with respect to all risks which make the conduct unreasonably dangerous

Tarasoff v. Regents of University of California, (1976) 17 Cal.3d 425, 434435 [131 Cal



24/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Rptr. 14, 551 P.2d 334]; See Civ. Code, 1714; Lugtu v. California Highway Patrol

(2001) 26 Cal.4th 703, 716 [110 Cal. Rptr. 2d 528, 28 P.3d 249], and authorities cited).

A. Plaintiffs 1st

Cause of Action Willful and Intentional Intrusion

upon Plaintiffs Solitude, Seclusion and Private Affairs - Invasion oPrivacy:

28. The Reed Defendants state Plaintiffs claim must be denied because

Plaintiffs failed to adequately plead the third element of privacy under the State

Constitution and Plaintiffs failed to adequately plead the second prong of the common

law tort, Intrusion upon ones Seclusion. [Reed Defendants MTD pgs. 9-10].

29. Plaintiffs incorporate by reference their FAC at pgs 61-74, 144-174 and

pgs 78-83, 187-204 as if fully set forth here at length.

30. Plaintiffs have sufficiently pled that their private data, including but not

limited to address, names, spouses names, Social Security numbers, dates of birth, places

of birth, family members, financial records, credit data, etc. was disseminated by the

Reed Defendants. Plaintiffs pled that the Reed Defendants, LexisNexis Group

LexisNexis, Accurint, ChoicePoint, Reed Elsevier, Inc., etc. disclosed their private data

without any type of permissible purpose, verification or authorization. Plaintiffs pled that

the Reed Defendants, LexisNexis Group, LexisNexis, Accurint, ChoicePoint, Reed

Elsevier, Inc., etc sold their private information to third parties, including but not limited

to Taitz and the Sankey Defendants, all of which constitutes a serious invasion of

privacy.

31. The sale and disclosure of a persons Social Security number, birth date

address (unless you own the property, your address is not public), unlisted telephone



25/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

number; and other private data for a profit without any type of verification as to the lega

entitlement, or legal purpose constitutes a serious invasion of privacy.

32. InHill, supra, 7 Cal.4th 1, our Court considered the showing a person must

make to state a violation of California's Constitutional right to privacy. That decision

made clear that the right of privacy protects the individual's reasonable expectation of

privacy against a serious invasion. Pioneer Electronics (USA), Inc. v. Superior Court

(2007) 40 Cal.4th 360, 370 [53 Cal. Rptr. 3d 513, 150 P.3d 198], citingHill, supra, at pp

3637). As our Court summarizedHill's holding, The party claiming a violation of the

constitutional right of privacy established in article I, section 1 of the California

Constitution must establish (1) a legally protected privacy interest, (2) a reasonable

expectation of privacy under the circumstances, and (3) a serious invasion of the privacy

interest. International Federation of Professional & Technical Engineers, Local 21

AFL-CIO v. Superior Court, (2007) 42 Cal.4th 319, 338 [64 Cal. Rptr. 3d 693, 165 P.3d

488], citingHill, supra, at pp. 3940. "A particular class of information is private when

well-established social norms recognize the need to maximize individual control over its

dissemination", like Plaintiffs Social Security numbers, dates of birth, spouses

information, addresses, places of birth, credit data, financial data, etc., Hill 7 Cal.4th 1

35.

33. Plaintiffs pled they have and had a legally protected privacy interest in their

Social Security numbers, dates of birth, maiden names, mothers maiden names, place of

birth, family members, spouses, financial records, medical records, credit reports and

emails, etc.; that they had high expectations of their private information being maintained



26/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

private at all times; and the Reed Defendants, LexisNexis Group, LexisNexis, Accurint,

ChoicePoint, Reed Elsevier, Inc., etc. sold Plaintiffs private data to third parties who did

not have any type of legal entitlement or reason, for a profit. Plaintiffs pled in so doing

the Reed Defendants violated three [3] FTC Court Orders against them. See U.S. v

ChoicePoint, Inc., Case No. 06-cv-0198, FTC File No. 052-3069, Court Order of

February 15, 2006; U.S. v. ChoicePoint, Inc., Case No. 06-cv-0198, Supplemental Court

Order of October 14, 2009 for violations of the previous Court Orders; and In the Matter

of Reed Elsevier, Inc. and Seisinet Inc. Corporations, FTC File No. 052-3094, Docket

No. C-4226 Court Order of July 29, 2008.

34. Inth

To prove actionable intrusion, the plaintiff must show the defendant

penetrated some zone of physical or sensory privacy surrounding, or

obtained unwanted access to data about, the plaintiff. The tort is proven

only if the plaintiff had an objectively reasonable expectation of seclusion

or solitude in the place, conversation or data source. (Rest.2d, 652B, com.

c, p. 379; see, e.g., People for the Ethical Treatment of Animals v. Bobby

Berosini, Ltd., (1995) 111 Nev. 615, 895 P.2d 1269, 1280-1281 [emphasis

added].

35. The Reed Defendants obtained Ostella and Liberis private information

including but not limited to Social Security numbers, financial records, credit data, places

of birth, dates of birth, maiden names, mothers maiden names, etc. and resold the

information, without permission or authorization of the Plaintiffs. Further the Reed

\[74 Cal. Rptr. 2d 843] the Court held:

Shulman v. Group W. Productions, Inc., (1998) 18 Cal. 4 200, 217,



27/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Defendants sold Plaintiffs private information without any inquiry or verification of Taitz

and the Sankey Defendants legal entitlement to obtain Ostella and Liberis private data.

36. Plaintiffs have met their burden. The Reed Defendants Motion must be

Denied.

B. Plaintiffs Second Cause of Action, Public Disclosure of Private

Facts is Properly Pled against the Reed Defendants:

37. The Reed Defendants claim Plaintiffs Second Cause of Action fails because

Plaintiffs cannot allege the first element of the claim, that the Reed Defendants disclosed

private information to the public. [Reed Defendants MTD at pgs. 10-11].

38. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174 and

pgs. 78-85, 187-214, as if fully set forth here at length.

39. The elements of the tort of public disclosure of private facts are: (1) public

disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the

reasonable person, and (4) which is not of legitimate concern. Taus v. Loftus, (2007) 40

Cal. 4th

683 [54 Cal. Rptr. 3d 775].

40. Publication means communication to some third person, in this case to the

Sankey Defendants, Taitz, Yosef Taitz and others. Smith v. Los Angeles Bookhinders

Union No. 63, 133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955); Neary v. Regents of

University of California, 185 Cal. App. 3d 1136 [230 Cal. Rptr. 281] (1st Distr. 1986);

6A Cal. Jur. 3d, Assaults and Other Willful Torts 153 (2003).

41. Plaintiffs have met the elements required. Schwartz v. Thiele, 242 Cal. App

2d 799 [51 Cal. Rptr. 767] (2d Dist. 1966); Timperley v. Chase Collection, Service, 272



28/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Cal. App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969); Kinsey v. Macur, 107 Cal. App. 3d

264 [165 Cal. Rptr. 608].

C. Plaintiffs 3rd

Cause of Action False Light Invasion of Privacy:

42. The Reed Defendants claim Plaintiffs have not pled a sufficient False Light

Invasion of Privacy claim against them because Plaintiffs cannot show that the Reed

Defendants did not act with Constitutional malice. The Reed Defendants quote Solano v

Playgirl, Inc., 292 F.4d 1078, 1082 [Reed Defendants MTD, pg. 11].

43. The Malice standard, constitutional or otherwise does not pertain to Ostella

and Liberi. The malice standard only applies to public figures. Neither Liberi or Ostella

are public figures. See Eastwood v. Superior Court of Los Angeles County, 149 Cal

App.3d 409, (Cal. Ct. App. 1983); Schwartz v. Thiele, 242 Cal. App. 2d 799 [51 Cal.

Rptr. 767] (2d Dist. 1966); Timperley v. Chase Collection, Service, 272 Cal. App. 2d 697

[77 Cal. Rptr. 782] (2d Dist. 1969); Kinsey v. Macur, 107 Cal. App. 3d 264 [165 Cal.

Rptr. 608]. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686

(1989) 109 S.Ct. 2678, 105 L.Ed.2d 562 (quoting Bose Corp. v. Consumers Union of

United States, Inc., (1984) 466 U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502); Aisenson

v. Am. Broad. Co., Inc., (1990) 220 Cal.App.3d 146, 269 Cal.Rptr. 379, 382-383.

44. Despite this, Plaintiffs have met the constitutional malice claim, as they

notified the Reed Defendants of the incorrect information they maintained on Ostella and

Liberi. Refusing to reinvestigation the information and/or correct the information, the

Reed Defendants sold reports with this wrong information, making it appear that Ostella

and Liberi used different names, different Social Security numbers, dates of birth, etc.



29/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

The Reed Defendants statements in the reports about Ostella and Liberi were false, the

Reed Defendants knew that the information in the reports was false; the reports were

published to third parties in reckless disregard as to its truth. This constitutes

constitutional malice. See Klein & Associates Political Relations v. Port Arthur

Independent School Dist., 92 S. W. 3d 889 (Tex. App. Beaumont 2002), review denied

(Apr. 17, 2003);McCloud v. Homeside Lending, 309 F. Supp. 2d 1335 (N.D. Ala. 2004)

Ampex Corp. v. Cargle, 128 Cal. App. 4th

1569, 27 Cal. Rptr. 3d 863 (1st

Dist. 2005)

45. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174 and

pgs. 78-90, 187-225, as if fully set forth here at length.

46. Plaintiffs suffered damages, as pled in their Complaint, including but not

limited to harassment, hospitalizations, damage to their reputation, loss of business, etc

and were exposed to hatred, contempt, ridicule, embarrassment, humiliation and obloquy.

47. False Light Invasion of Privacy, concerns ones piece of mind, while the

right of freedom from defamation concerns primarily ones reputation. Operating

Engineers Local 3 v. Johnson, 110 Cal. App. 4th

180 [1 Ca. Rptr. 3d 552] (1st

Dist. 2003).

VI. PLAINTIFFS 5th

, 6th

and 17th

CAUSE OF ACTION WILL PREVAIL:

48. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174; pgs

78-90, 187-225; at pgs 94-102 239-264; and at pgs. 142-149 381-389, as if fully

set forth here at length.

49. The Reed Defendants claim Plaintiffs Fifth, Sixth and Seventeenth Causes

of Action under the IPA fail because Plaintiffs are unable to prove that the Reed

Defendants disclosed information to the public. [Reed Defendants MTD, pgs 11-12].



30/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

50. The Reed Defendants disclosed reports to Taitz and the Sankey Defendants

which contained Liberi and Ostellas names, Social Security numbers, dates of birth

maiden names, mothers maiden names, places of birth, fathers name, addresses

financial records, credit reports and credit data; medical data; their spouses names, Social

Security numbers; family members, associates and other private data. The Sankey

Defendants and Taitz admit to receiving Plaintiffs private data from the Reed Defendants

and Intelius.

51. Publication means communication to some third person, in this case to the

Sankey Defendants, Taitz, Yosef Taitz and others. Smith v. Los Angeles Bookhinders

Union No. 63, 133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955); Neary v. Regents of



52. Cal. Civ. Code 1798.53 sets out a civil action for damages for the

intentional disclosure of confidential personal information "maintained by a state agency

or from `records' within a `system of records' ... maintained by a federal government

agency...." Jennifer M. v. Redwood Women's Health Ctr., 88 Cal. App. 4th 81, 89

(Cal.Ct.App.2001)Idat 550. In a whole line of cases, the Courts have held that Section

1798.53 pertains to any person . . . who intentionally discloses information, not

otherwise public. Plaintiffs never admitted or stated the Reed Defendants did not

disclose Plaintiffs private data to the public. To the contrary, Plaintiffs have stated the

Reed Defendants intentionally disclosed Ostella and Liberis private information to third

parties, including Taitz, Yosef Taitz and the Sankey Defendants, thus Plaintiffs met their



31/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

burden. The Reed Defendants arguments that they cannot be held liable under the IPA

because they did not publicly post the information fails. See the unreported opinion of

Witriol v. LexisNexis Group, 2006 WL 1128036 (N.D.Cal., Apr 27, 2006) quoting

Jennifer M. v. Redwood Women's Health Ctr., 88 Cal.App. 4th 81, 89 (Cal.Ct.App.2001)

Anti-Defamation League of B'nai B'rith v. Superior Court, (1998) 67 Cal.App.4th 1072

1078-1079, 79 Cal. Rptr.2d 597; Nicholson v. McClatchy Newspapers, (1986) 177

Cal.App.3d 509, 514, fn. 2, 223 Cal.Rptr. 58, Fahizah Alim v. Superior Court of

Sacramento County, 185 Cal. App. 3d 144 (1986). See also Cal. Civ. Code 1798.53

1798.85; and 1798.81.5(a).

53. Plaintiffs have met their burden. See the unreported opinion of Witriol v

LexisNexis Group, 2006 WL 1128036 (N.D.Cal., Apr 27, 2006) quoting Jennifer M. v

Redwood Women's Health Ctr., 88 Cal.App. 4th 81, 89 (Cal.Ct.App.2001). See also Cal

Civ. Code 1798.53; 1798.85; and 1798.81.5(a).

VII. PLAINTIFFS 8th CAUSE OF ACTION:

54. Plaintiffs incorporate by reference the previous paragraphs and their FAC a

pgs 61-74 144-174; and pgs. 111-118, 281-300, as if fully set forth here at length.

55. The Reed Defendants maintained incorrect information on the Plaintiffs so

it appeared Plaintiffs were using more than one name, date of birth, and Social Security

number, wrong dates of birth, wrong names and other incorrect data. The information in

the reports provided by the Reed Defendants, were stated as fact. Plaintiffs will succeed

on their Defamation claim, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Publication

of a false statement means communication to some third person, in this case to Taitz



32/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Yosef Taitz, the Sankey Defendants and others, who understood the defamatory meaning

of the statement and its application to the person to whom reference was made, as did

Taitz, Yosef Taitz and the Sankey Defendants. Smith v. Los Angeles Bookhinders Union

No. 63, 133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955); Neary v. Regents of



VIII. PLAINTIFFS 18th

CAUSE OF ACTION, UNFAIR BUSINESS

PRACTICES:

56. Plaintiffs incorporate by reference their FAC at pages 149-151, 390-397

as if fully set forth here at length.

57. The Reed Defendants move to dismiss Plaintiffs 18th

Cause of Action

claiming Plaintiffs failed to allege what was fraudulent about the Reed Defendants

conduct and Plaintiffs failed to assert the fraudulent acts with particularity. The Reed

Defendants further claim Plaintiffs failed to cite to any damages or losses as required.

[Reed Defendants MTD, pgs 13-14].

58. Plaintiffs pled the Reed Defendants systematic violation of the FCRA

CCRAA, ICRAA and IPA, as alleged in Plaintiffs FAC, coupled with their unlawful

invasion of Plaintiffs Privacy Rights and other wrongful conduct re-alleged herein and in

Plaintiffs FAC, reveals a pattern and practice of unfair, unlawful and fraudulent business

practices in violation of California Business & Professions Code 17200, et. seq.

59. Plaintiffs further pled the Reed Defendants, LexisNexis Group, LexisNexis

Accurint and ChoicePoint, Inc.s failure to adopt policies in accordance with and/or to

adhere to these laws, all of which are binding upon and burdensome to Defendants



33/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

competitors, engenders an unfair competitive advantage for Defendant, thereby

constituting an unfair business practice as set forth in California Business & Professions

Code 17200-17208.

60. Plaintiffs pled Defendants knowing failure to safeguard Plaintiffs Ostella

and Liberis personal and confidential information, and to adopt policies in accordance

with and/or to adhere to the fair credit reporting laws, all of which are binding upon and

burdensome to Defendants competitors, engenders an unfair competitive advantage for

Defendant, thereby constituting an unfair business practice, as set forth in California

Business & Professions Code 17200-17208.

61. The Reed Defendants unauthorized disclosure of Plaintiff Liberi and

Ostellas private information, their systematic violation of the FCRA, CCRAA, ICRAA

and IPA, as alleged in Plaintiffs FAC, their unlawful invasion of Plaintiffs Liberi and

Ostellas privacy rights and the other wrongful conduct alleged in Plaintiffs FAC, reveal

a pattern and practice of unfair, unlawful and fraudulent business practices in violation of

California Business & Professions Code 17200 et seq.

62. All through Plaintiffs FAC, Liberi and Ostella state they were damaged

Liberis and her spouses identities have been stolen repeatedly, Liberi suffered medical

expenses in excess of Two Hundred Fifty Thousand [$250,000] Dollars as a result of the

stress endured from the constant harassment; Taitz publishing on the internet of Plaintiff

Liberis private data obtained from the Reed and Intelius Defendants intentional

disclosure of her private information; Ostella had to sell her house to an investor for a

loss to move her family in a hurry to protect them due to the threats and harassment



34/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

received as a result of Taitz publishing on the Internet her private data Taitz received

from the Reed and Intelius Defendants. Plaintiff pled that they have incurred costs as a

result of the identity theft they have suffered; attorney fees; etc. Plaintiffs pled they

suffered economic damages as a result of the Reed Defendants Unfair Competition.

63. The Unfair Competition Law [UCL] prohibits, and provides civil

remedies for, unfair competition, which it defines as any unlawful, unfair or fraudulent

business act or practice. 17200. Its purpose is to protect both consumers and

competitors by promoting fair competition in commercial markets for goods and

services. Kasky v. Nike, Inc., (2002) 27 Cal.4th 939, 949 [119 Cal. Rptr. 2d 296, 45 P.3d

243]; See Hall v. Time Inc., (2008) 158 Cal.App.4th 847, 852 [70 Cal. Rptr.3d 466]. In

service of that purpose, the Legislature framed the UCL's substantive provisions in

broad, sweeping language Cel-Tech Communications, Inc. v. Los Angeles Cellular

Telephone Co., (1999) 20 Cal.4th

163, 181 [83 Cal. Rptr. 2d 548, 973 P.2d 527]; See also

Bank of the West v. Superior Court, (1992) 2 Cal.4th 1254, 1266 [10 Cal. Rptr. 2d 538

833 P.2d 545] [The Legislature intended this sweeping language to include anything

that can properly be called a business practice and that at the same time is forbidden by

law. ] and provided courts with broad equitable powers to remedy violations ABC

Internat. Traders, Inc. v Matsushita Electric Corp., (1997) 14 Cal.4th 1247, 1270 [61

Cal. Rptr. 2d 112, 931 P.2d 290].

64. Plaintiffs have satisfied the requirements ofCal. Business and Professions

Code 17200, et seq. and the requirements outlined in Schulz v. Neovi Data Corp., (2005)

129 Cal. App. 4th

1.



35/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

th th


and 19th

(mistyped by

the Reed Defendants as the 14th

) Causes of Action on the basis that their conduct was not

extreme and outrageous conduct. The Reed Defendants claim there is no personal

relationship between Liberi, Ostella and them; and Defendants Taitz and the Sankey

Defendants only obtained information from private records. [Reed Defendants MTD, pgs

14-15].

66. Plaintiffs incorporate by reference their previous paragraphs and FAC at

pgs 61-74 144-174; pgs. 78-90, 187-225; at pgs 118-122 301-314; and at pgs.

152-157 398-416, as if fully set forth here at length.

67. To the contrary, Plaintiffs pled that the Reed Defendants willingly and

intentionally sold Plaintiffs private data to Taitz and the Sankey Defendants, which they

admitted, without any type of verification of their legal entitlement; Private information

includes but is not limited to Social Security numbers, dates of birth, mothers maiden

names, Plaintiffs maiden names, credit reports from ChoicePoint, Inc. and Equifax

financial records, none of which are public records. Accurint, Background Reports from

LexisNexis Group and LexisNexis, ChoicePoint credit reports are not public records as

outlined in the FTC Court Orders. The Reed Defendants cancelled Liberis Lexis

account out of retaliation and bad-mouthed her to her school; the Reed Defendants were

aware of the incorrect information maintained on Plaintiffs Liberi and Ostella and refused

to correct it, and many other instances. In so doing, the Reed Defendants violated three

[3] FTC Court Orders against them for the same conduct exhibited prior. See U.S. v

IX. PLAINTIFFS 9 and 19 CAUSES OF ACTION



36/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

ChoicePoint, Inc., Case No. 06-cv-0198, FTC File No. 052-3069, Court Order of

February 15, 2006; U.S. v. ChoicePoint, Inc., Case No. 06-cv-0198, Supplemental Court

Order of October 14, 2009 for violations of the previous Court Orders; and In the Matter

of Reed Elsevier, Inc. and Seisinet Inc. Corporations, FTC File No. 052-3094, Docket

No. C-4226 Court Order of July 29, 2008.

68. The Reed Defendants, LexisNexis Group, LexisNexis, ChoicePoint

Accurint, LexisNexis Risk and Information Analytics Group, Inc., LexisNexis Risk

Solutions, Inc. and Reed Elsevier, Inc.s actions outlined herein and in Plaintiffs FAC

caused Liberi and Ostella severe mental and emotional suffering and distress as the Reed

Defendants actions and inactions were intentional and outrageous conduct. Guillory v

Godfrey, 134 Cal. App. 2d 628 [286 P.2d 414] (2d Dist. 1955); Spackman v. Good

(1966) 245 Cal. App. 2d 518 [54 Cal. Rptr. 78].

69. The Reed Defendants actions and inactions were extreme and outrageous

invasion of Plaintiffs mental and emotional tranquility and were beyond all bounds of

decency. State Rubbish Collectors Assn v. Siliznoff, (1952) 38 Cal. 2d 330 [240 P. 2d

282], Ochoa v. Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr. 661].

70. The Reed Defendants actions were intentional and reckless conduct with

the intent to inflict injury and they engaged in the acts with the realization that injury

would occur upon Plaintiffs. Plaintiffs suffered severe emotional distress and Plaintiff

Liberi also suffered medical complications due to the severe emotional distress.

Plaintiffs have fulfilled all the elements for recovery under their Ninth and Nineteenth

Cause of Actions. Ross v. Creel Printing & Publishing Co., 100 Cal. App. 4th

736 [122



37/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Cal. Rptr. 2d 787] (1st Dist. 2002); Hassoldt v. Patrick Media Group, Inc., 84 Cal. App

4th 153 [100 Cal. Rptr. 2d 662] (2d Dist. 2000); Ess v. Eskaton Properties, Inc., 97 Cal

App. 4th 120 [118 Cal. Rptr. 2d 240] (3d Dist. 2002); Christensen v. Superior Court

(1991) 54 Cal. 3d 868 [2 Cal. Rptr. 2d 79]. See also Potter v. Firestone Tire & Rubber

Co., (1993) 6 Cal. 4th

965 (The Court held under California law, if the defendant is

guilty of "despicable conduct which is carried on by the defendant with a willful and

conscious disregard of the rights or safety of others" then the bar is lowered).

71. The Reed Defendants disregard for the Plaintiffs privacy and right to

maintain their data private warrants damages for Negligent Infliction of Emotiona

Distress. See Ochoa v. Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr.].

X. PLAINTIFFS 20th

CAUSE OF ACTION, RES IPSA LOQUITOR:


Cause of Action for

Res Ipsa Loquitor negligence because Plaintiffs failed to allege facts that their injuries

were caused by instrumentality within the exclusive control of the Reed Defendants

[Reed Defendants MTD pg. 15].

73. Plaintiffs incorporate by reference their previous paragraphs and FAC at

pgs 61-74 144-174; pgs. 78-90, 187-225; at pgs 118-122 301-314; and at pgs.

152-160 398-423, as if fully set forth here at length.

74. The Reed Defendants provided Taitz, Yosef Taitz and the Sankey

Defendants with Plaintiffs private information outlined herein, their credit reports,

financial reports, Social Security numbers, dates of birth, mothers maiden names, and

other private data solely in the Reed Defendants control. Taitz, Yosef Taitz and the



38/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

Sankey Defendants could not have published and harmed Liberi and Ostella had the

Reed Defendants not provided Liberi and Ostella private data to them.

75. Under the theory of Res Ipsa Loquitur, Plaintiffs must show that: (1) the

cause of the injury is of a kind that does not occur ordinarily in the absence of someone's

negligence; (2) the injury was caused by an instrumentality within the exclusive control

of the Defendant or of a third party for whose conduct the defendant is legally

responsible; and (3) that the injury was not due to any voluntary action or contribution

on the part of appellants. See Shahinian v. McCormick, (1963) 59 Cal.2d 554, 559; See

also Levy-Zentner Co. v. Southern Pac. Transportation Co., (1977) 74 Cal.App.3d 762

777-780.

76. The Res Ipsa Loquitor rule provides an illustration. The doctrine shifts the

burden of producing evidence so that Plaintiffs may bring tort claims even if they lack

specific proof that their injury was caused by negligence of a particular Defendant. See

Ybarra v. Spangard, (1944) 25 Cal.2d 486, 489 [154 P.2d 687];Byrne v. Boadle, (1863)

159 Eng. Rep. 299, 300, as cited in Brown v. Poway Unified School Dist., (1993) 4

Cal.4th

820, 825826 [15 Cal. Rptr. 2d 679, 843 P.2d 624]. In California, the doctrine of

Res Ipsa Loquitor is defined by statute as a presumption affecting the burden of

producing evidence. Evid. Code, 646, subd. (b).) (Ibid.; See Ybarra v. Spangard

supra, 25 Cal.2d 486, 489, quoting Prosseron Torts.)

77. The Reed Defendants had a duty to ensure that Taitz and the Sankey

Defendants and others had a legal right to obtain Plaintiffs reports. The Reed Defendants

also had a duty to properly communicate and reinvestigate the incorrect information they



39/44


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2425

26

27

28

maintained on Liberi and Ostella. Instead, the Reed Defendants simply ignored the

letters and refused to adhere to their requirements under the FCRA. And, since suit has

been filed Plaintiffs fear the Reed Defendants have failed to maintain searches conducted

on the Plaintiffs.

78. Plaintiffs have met their burden, The Reed Defendants Motion must be

Denied.

XI. CONCLUSION:

79. For the reasons outlined herein, the Reed Defendants Motion to Dismiss

must be Denied. In the alternative, Plaintiffs Request to Amend their Complaint.

Respectfully submitted,






Telephone: (610) 825-3134

E-mail: [email protected]

Attorney in Pro Se and Counsel fo

Plaintiffs

Dated: September 25, 2011 /s/ Philip J. Berg



40/44

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



SOUTHERN DIVISION

LISA LIBERI, et al,

Plaintiffs,

vs.

ORLY TAITZ, et al,

Defendants.

::::::::

::::::


8:11-cv-00485-AG (AJW)

PROPOSED ORDER DENYING

THE REED DEFENDANTS

MOTION TO DISMISSDate of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D

ORDER

On October ______, 2011, Defendants Reed Elsevier, Inc., LexisNexis Risk

and Information Analytics Group, Inc., LexisNexis, Inc., LexisNexis Risk

Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a

Accurint, and LexisNexis Group, Inc. (the Reed Defendants) Motion to Dismiss

came on for Hearing. The Court having reviewed and considered the moving

papers, any Opposition thereto, the records on file with this Court, having heard

Oral Argument and for GOOD CAUSE SHOWN, IT IS HEREBY

ORDERED and DECREED:

The Reed Defendants Motion to Dismiss is DENIED.



41/44

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IT IS SO ORDERED:

Dated: October ___, 2011 ______________________________

Andrew J. Guilford

Judge of the United States District

Court, Central District of California,

Southern Division

Respectfully submitted by:

Philip J. Berg, EsquireE-mail: [email protected]





Telephone: (610) 825-3134



42/44

Liberi, et al Plaintiffs Cert of Svc re Opp to Reed Defendants MTD 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Philip J. Berg, Esquire (PA I.D. 9867)E-mail: [email protected]




Telephone: (610) 825-3134 Fax: (610) 834-7659

Attorney in pro se and for Plaintiffs



SOUTHERN DIVISION

LISA LIBERI, et al,

Plaintiffs,

vs.

ORLY TAITZ, et al,

Defendants.

:

::::::::::

CIVIL ACTION NUMBER:8:11-cv-00485-AG (AJW)

PLAINTIFFS CERTIFICATE OF

SERVICE

I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs

Response in Opposition; Memorandum of Points and Authorities; Declarations of Philip

J. Berg, Esquire; Lisa Liberi; Proposed Order; and Certificate of Service to the Reed

Defendants Motion to Dismiss was served through the ECF filing system 25th

day of

September 2011 upon the following:

Orly Taitz

29839 Santa Margarita Parkway, Suite 100

Rancho Santa Margarita, CA 92688Email: [email protected] and

Email: [email protected]

Served via the ECF Filing System

Attorney for Defendant Defend our Freedoms Foundation, Inc.



43/44

Liberi, et al Plaintiffs Cert of Svc re Opp to Reed Defendants MTD 2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Kim Schumann, Esquire

Jeffrey P. Cunningham, Esquire

Peter Cook, Esquire

SCHUMANN, RALLO & ROSENBERG, LLP

3100 Bristol Street, Suite 400

Costa Mesa, CA 92626



Attorney for Defendants Orly Taitz; Orly Taitz, Inc.; and

Law Offices of Orly Taitz

James F McCabe

Morrison & Foerster425 Market St

San Francisco, CA 94105-2482Email:[email protected]


Attorney for Defendants:

Reed Elsevier, Inc.

LexisNexis Group, Inc

LexisNexis, Inc.

LexisNexis Risk and Information Analytics Group, Inc.

LexisNexis Risk Solutions, Inc.

LexisNexis Seisint, Inc.

LexisNexis Choicepoint, Inc.

John A Vogt, Jr., Esquire

Edward San Chang, Esquire

Jones Day3161 Michelson Drive Suite 800

Irvine, CA 92612

Email:[email protected]



Attorney for Defendant Intelius, Inc.



44/44

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Marc Steven Colen, Esq.

Law Offices of Marc Steven Colen

5737 Kanan Road, Ste. 347

Agoura Hills, CA 91301



Attorney for Defendants:

Neil Sankey; Todd Sankey; Sankey Investigations, Inc. and

The Sankey Firm, Inc.

Michael J Niborski, Esquire

Pryor Cashman LLP1801 Century Park East 24th Floor

Los Angeles, CA 90067

Email: [email protected] for Daylight Chemical Information Systems, Inc.

/s/ Philip J. Berg



Liberi v Taitz - Plffs Opp to Reed Def Motion to Dismiss Doc 391-0

Documents

Transcript of Liberi v Taitz - Plffs Opp to Reed Def Motion to Dismiss Doc 391-0