2013-12-06 - LIBERI V TAITZ CDCA - Emergency Motion - 13-56253 Emergency Motion

Case No.
13-56253
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Lisa Liberi, et al.,
Plaintiffs/ Appellees,
vs.
Orly Taitz, et al.,
Defendant/ Appellant.
)
)
)
)
)
)
)
)
)
)
Appeal from the United States
District Court for the Central
District of California
Civil Action No.: 8:11-CV-
00485-AG (AJWx)
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 BY APPELLANT,
ORL Y TAITZ, FOR ORDER BARRING APPELLEES, LAW OFFICES OF
PHILIP J. BERG AND GO EXCEL GLOBAL, FROM PARTICIPATING IN
APPEAL, AND STAYING BRIEFING SCHEDULE; CERTIFICATION
PURSUANT TO CIRCUIT RULE 27-3; MEMORANDUM OF POINTS AND
AUTHORITIES; SUPPORTING DECLARATION
Kim Schumann, Esq. , CSBN 170942
Jeffrey Cunningham;. CSBN 151067
SCHUMANN LLP
3100 S. Bristol St., Suite 100
Costa Mesa, CA 92626
(714) 850-0210- telephone
(714) 850-0551- fax
Counsel for Defendant/ Appellant,
Orly Taitz
Case: 13-56253 12/06/2013 ID: 8892982 DktEntry: 7-1 Page: 1 of 65 (1 of 68)
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
CERTIFICATION PURSUANT TO RULE 27-3
Defendant and Appellant, ORL Y TAITZ ("Taitz"), respectfully submits this
Certification regarding her Emergency Motion for an Order barring Plaintiffs and
Appellees, LAW OFFICES OF PHILIP J. BERG (the "Berg Offices") and GO
EXCEL GLOBAL ("Excel"), from participating in this appeal, including but not
limited to filing any brief, submitting oral argument or participating in any other
manner.
The Motion is made as to the Berg Offices based on Plaintiffs' recent
representation made in the related appeal by Defendant and Appellant, DEFEND
OUR FREEDOMS FOUNDATIONS ("DOFF") (Liberi. et al. v. Taitz. et al.; Case
No. 13-56250), that the Berg Offices is not a separate business entity but merely a
fictitious business name used by Plaintiff and Appellee, PHILIP J. BERG
("Berg"). See, "Exhibit C" hereto. In addition to not being a business entity, the
fictitious name "Law Offices of Philip J. Berg" is obsolete or otherwise defunct
due to the suspension of Berg's license to practice law in his home State of
Pennsylvania. See, "Exhibit A" hereto. For these reasons, the Berg Offices as a
matter of law is not an Appellee with legal standing to participate in this appeal.
The Motion is made as to Excel based on its non-existence as any form of
business entity. Plaintiffs do not specify in their pleadings what form of entity
(corporation, partnership, etc.) Excel purports to be. Plaintiffs allege that Excel has
a business address in New Jersey. First Amended Complaint, ,-r 5; "Exhibit D"
hereto. No record has been found from New Jersey that Excel is any existing
business entity. Thus, Excel as a matter of law is not an Appellee with legal
standing to participate in this appeal.
I l l
Ill
-1-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Taitz also seeks an Order staying the briefing schedule in this matter,
pending resolution of issues regarding whether the Berg Offices and Excel have
legal standing necessary to participate in this appeal.
1. The telephone numbers, e-mail addresses, and office addresses of the
attorneys for the parties are as follows: (a) Gittler & Bradford, Stephen H. Marcus,
Esq. and Randy Berg, Esq., 10537 Santa Monica Blvd., Third Floor, Los Angeles,
CA 90025-4999, (310) 474-4007, smarcus@gblaw.net and raberg@gblaw.net. for
Plaintiffs/ Appellees, LISA LIBERI, LISA OSTELLA and GO EXCEL GLOBAL;
(b) Philip J. Berg, 555 Andorra Glen Court, Suite 12, Lafayette Hill, PA 19444-
2531, (610) 825-3134, philiberg@gmail.com. for Plaintiff/Appellee, PHILIP J.
BERG; and (c) Plaintiff/Appellee, LAW OFFICES OF PHILIP J. BERG, 555
Andorra Glen Court, Suite 12, Lafayette Hill, PA 19444-2531, (610) 825-3134,
philjberg@gmail. com.
2. It is necessary for Taitz to seek relief herein on an emergency basis
pursuant to Circuit Rule 27-3. A Scheduling Order has been issued in this matter
requiring Taitz's Opening Brief and Excerpts of Record to be filed and served by
December 24, 2013. Therefore, there is less than twenty-one (21) days for the
relief sought by Taitz to be considered and issued before the present December 24,
20 13 deadline.
3. As noted, DOFF has filed a related appeal (Case No. 13-56250).
DOFF has filed a Motion in that appeal requesting various relief, including to bar
the Berg Offices and Excel from participating in the appeal. The Court of Appeal
has issued an Order requiring Berg to file a response to the Motion, including to
state whether he seeks to represent the Berg Offices, and to stay briefing until
further Order. See, "Exhibit B" hereto.
Ill
- 2-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
4. Berg has not, as required, filed any response to DOFF's Motion, and
is thus barred from representing the Berg Offices. The Order also provides that
"failure to respond to it may result in the waiver of all claims and arguments in the
appeal by The Law Offices of Philip J. Berg." ("Exhibit B" Order, pg. 3.) The
Court of Appeals is considering that issue, as well as DOFF's other requests for
relief including but not limited to barring the Berg Offices and Excel from
participating in DOFF's appeal. The parties are accordingly awaiting a further
Order on DOFF's Motion, including on the issues presented herein.
5. As explained, DOFF's Motion is pending in Case No. 13-56250, with
the Court of Appeals considering it and not yet having issued a second Order on it,
including on the issues raised herein. Such Order likely will affect handling of this
appeal. For this additional reason, Taitz is proceeding pursuant to Circuit Rule 27-
3 where the Motion in DOFF's appeal is pending, and the second Order on said
Motion may not be issued until after the December 24, 2013 deadline in Taitz's
appeal particularly where briefing in DOFF's appeal is stayed. Taitz therefore
certifies that to avoid irreparable harm relief is needed in less than twenty-one (21)
days.
6. Commencing on December 3, 2013, Taitz's counsel has met and
conferred via email with all other counsel. Plaintiffs' counsel on December 4,
2013 responded to Taitz's counsel's email. The parties have been unable to
resolve the issues presented herein. Further, all Plaintiffs through their counsel are
being served with Taitz's Motion.
7. The relief sought by Taitz, regarding whether the Berg Offices and
Excel (both non-existent purported entities) may participate in her appeal, was not
available in the District Court.
Ill
-3-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
8. On December 5, 2013, Taitz's counsel informed the Court of Appeals
Motion Unit (Stephanie, Staff Attorney) of this and Taitz's concurrently-filed
Motions and of the emergency basis for submission of them.
Dated: December 6, 2013
Is/ - Jeffrey P. Cunningham
B y ~ ~ ~ ~ ~ ~
IGm Schumannl Esq.
-4-
Jeffrey P. Cunnmgharn, Esq.
Attorneys for Defendant ana
Appellant, ORL Y TAITZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
MEMORANDUM OF POINTS AND AUTHORITIES
Defendant and Appellant, ORL Y T AITZ ("Taitz''), respectfully submits this
Emergency Motion for an Order barring Plaintiffs and Appellees, LAW OFFICES
OF PHILIP J. BERG (the "Berg Offices") and GO EXCEL GLOBAL ("Excel"),
from participating in this appeal, including but not limited to filing any brief,
submitting oral argument or participating in any other manner.
pending resolution of the issues raised herein.
I. Introduction
Taitz has appealed from the June 18,2013 Order of the District Court (Hon.
Andrew Guilford, Judge) denying her Motion to strike under California Code of
Civil Procedure section 425.16 challenging the First Amended Complaint of
Plaintiffs, LISA LIBERI, LISA OSTELLA, PHILIP J. BERG ("Berg"), Excel and
the Berg Offices.
Berg formerly represented all Plaintiffs. However, on June 19, 2013, Berg's
license to practice law issued by his home state of Pennsylvania was suspended for
two years. See, "Exhibit A" hereto. Berg, thus, cannot represent any other party.
II. The Court of Appeals in Related Case No 13-56250 Is Considering the
Similar Motion of Appellant, Defend Our Freedoms Foundations, and
Should Consider The Same Issues and Relief in This Case
Defendant and Appellant, DEFEND OUR FREEDOMS FOUNDATIONS
("DOFF"), has filed a related appeal (Liberi. et al. v. Taitz, et al.; Case No. 13-
56250).
DOFF has filed a Motion in that appeal requesting various relief, including
to bar the Berg Offices and Excel from participating in that appeal. The Court of
Appeal has issued an Order requiring Berg to file a response to the Motion,
-5-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
including to state whether he seeks to represent the Berg Offices, and to stay
briefing until further Order. See, "Exhibit B" hereto.
Among the issues being considered on DOFF's Motion is the same relief
sought herein by Taitz, as identified above. The parties are accordingly awaiting a
further Order on DOFF's Motion. Thus, this Court in Taitz's appeal should
consider and grant to her the same relief being considered in DOFF's appeal,
including as to whether the Berg Offices and Excel (both non-existent entities)
may participate herein.
III. Where the Berg Offices is Merely a Fictitious Business Name, and Not a
Separate Business Entity, As a Matter of Law It Lacks Legal Standing
to Participate in Taitz's Appeal
It is undisputed that the Berg Offices is not a separate business entity, but
instead merely a fictitious business name used by Berg during the time that he
maintained a license to practice law issued by his home state of Pennsylvania.
For example, Plaintiffs in opposition to DOFF's subject Motion recently revealed
that:
"The "Law Offices of Philip Berg" is not a separate entity, but a fictitious
I
business name of Philip Berg, and is represented by Philip Berg, in pro per. "
("Exhibit C" Opposition, pg. 3.)
It is axiomatic that a fictitious business name is not a separate business
entity, but only a "name" used by an individual or business entity (such as a
corporation, etc.). "Use of a fictitious business name does not create a separate
legal entity." Pinkerton's, Inc. v. Superior Court, 49 Cal.App.4th 1342, 1348
(1996). 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
-6-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
its invalidity can be called to the attention of the court at any state of the
proceeding." Oliver v. Swiss Club Tell, 222 Cal.App.2d 528, 537 (1963).
"Accordingly, it is a corollary to this rule that the objection that a plaintiff or
defendant is nonexistent is not subject to waiver, as in the case of misnomer or
lack oflegal capacity, because the defect is jurisdictional." !d. at 538.
In addition to not being a business entity, the fictitious name "Law Offices
of Philip J. Berg" is obsolete or otherwise defunct due to the suspension of Berg's
license to practice law in his home State of Pennsylvania. See, "Exhibit A"
hereto. Berg cannot represent himself to the public as "Law Offices" when his
license to practice has been suspended, and to do so would be the unauthorized
practice of law.
For these reasons, the Berg Offices is not an Appellee with legal standing
necessary to participate in this appeal and it should be barred from doing so.
IV. Where Excel is a Non-Existent Entity, As a Matter of Law It Lacks
Legal Standing to Participate in Taitz's Appeal
Plaintiffs do not specify in their pleadings what form of entity (corporation,
etc.) Excel purports to be. Plaintiffs merely allege that Excel has a business
address in New Jersey. First Amended 5; "Exhibit D" hereto.
Publically-available records from New Jersey have been searched to
determine if Excel exists and, if so, what type of entity it may be and if it
maintains "active" status or is in "good standing" with New Jersey authorities
regulating business entities in that State. No record has been found from New
Jersey that Excel is any existing business entity.
Presuming for the sake of argument only that Excel may be a corporation, it
would have to demonstrate that it maintains "active" or "good standing" status
with New Jersey authorities. A corporation no longer existing, or otherwise not in
-7-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
good standing with the governmental body with jurisdiction over it, does not have
legal standing to prosecute or defend an action. Grell v. Laci Le Beau Corp., 73
Cal.App.4th 1300, 1306 (1999); Palm Valley Homeowners Assn., Inc. v. Design
MTC, 85 Cal.App.4th 553, 560 (2000).
New Jersey law provides for the same result- that a corporation no longer
existing, or otherwise not in good standing, does not have legal standing to
prosecute or defend an action. Higi v. Elm Tree Village, 114 N.J. Super. 88, 91,
274 A.2d 845 (1971); J.B. Wolfe, Inc. v. Sa/kind, 3 N.J. 312,70 A.2d 72 (1949).
Presuming for the sake of argument only that Excel may be a fictitious
business name, the same result is mandated as discussed herein regarding the Berg
Offices. Pinkerton's, supra, 49 Cal.App.4th at 1348. Oliver, supra, 222
Cal.App.2d at 537.
For these reasons, Excel is not an Appellee with legal standing necessary to
participate in this appeal and it should be barred from doing so.
IV. The Briefing Schedule in Taitz's Appeal Should Be Stayed, as Has Been
Ordered in DOFF's Appeal, Pending Resolution oflssnes Regarding
Whether the Berg Offices and Excel Have Legal Standing Necessary to
Participate in This Appeal
Whether the Berg Offices and Excel have legal standing necessary to
participate in this appeal are key issues herein that should be decided before
proceeding with the parties filing briefs and their Excerpts of Record.
This Court has so recognized in issuing its Order in DOFF's appeal, which
includes to stay briefing in that related matter until such issues are resolved. See,
"Exhibit B" hereto.
Moreover, the filing of this Motion results in a stay being imposed pursuant
to Circuit Rule 27-11, which provides in relevant part: "Motions requesting the
-8-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
types of relief noted below shall stay the schedule for record preparation and
briefing pending the Court's disposition of the motion: (a)(l) dismissal."
(Emphasis added.)
Taitz's Motion concerns "dismissal" of the Berg Offices' and Excel's rights
in this appeal, including to file briefs or otherwise participate in it. Thus, under
Circuit Rule 27-11, the filing of this Motion operates to stay the briefing schedule
herein.
V. Conclusion
For the reasons stated herein, Taitz respectfully submits that an Order
should issue barring the Berg Offices and Excel from participating in this appeal,
including but not limited to filing any brief, submitting oral argument or
participating in any other manner, and to stay the briefing schedule pending
resolution of those issues.
By: ________________________ _
-9-
Kim E q.
Jeffrey P. Cunmngham, Esq.
Appellant, ORLY TAITZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
DECLARATION OF JEFFREY P. CUNNINGHAMTESJ%:SUPPORTING
MOTION BY PLAINTIFF AND APPELLAN , 0 Y TAITZ
I, Jeffrey P. Cunningham, declare as follows:
1. I am an attorney duly licensed to practice law in all courts of the State
of California and the United States Courts for the Ninth Circuit, and am a Partner
in the law offices of Schumann! Rosenberg, LLP, counsel for Defendant and
Appellant, ORL Y TAITZ ("Taitz"). I make this declaration based on my personal
knowledge of the facts stated herein. I gained my knowledge of those facts by
virtue of my participation in the events described herein, my preparation or review
of the documents described herein, or some combination of the foregoing as
identified herein. If called to testify to the facts stated herein, I could and would do
so competently and truthfully.
2. This declaration is submitted in support of Taitz's Motion for an
Order barring Plaintiffs and Appellees, LAW OFFICES OF PHILIP J. BERG (the
"Berg Offices") and GO EXCEL GLOBAL ("Excel"), from participating in this
appeal, including but not limited to filing any brief, submitting oral argument or
participating in any other manner. Taitz also seeks an Order staying the briefing
schedule in this matter, pending resolution of these issues.
3. I have read and am familiar with all pleadings and orders in the
underlying case in the District Court (Hon. Andrew Guilford, Judge). Plaintiff and
Appellee, PHILIP J. BERG ("Berg") represented Plaintiffs, including himself and
the Berg Offices in this case until his license to practice was suspended in his
home State of Pennsylvania on or about June 19, 2013.
4. I have read and am familiar with the pleadings and orders filed in
Berg's disciplinary matter. A true and correct copy of the Order of the Supreme
Court of Pennsylvania in Office of Disciplinary Counsel v. Berg is attached hereto
as "Exhibit A" and is incorporated herein by this reference as though fully set
-10-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
forth.
5. Defendant and Appellant, DEFEND OUR FREEDOMS
FOUNDATIONS ("DOFF") (represented by Taitz), has filed a related appeal
(Liberi, et al. v. Taitz, et al.; Case No. 13-56250). I have read and am familiar with
the pleadings and Motions filed in that appeal. DOFF has filed a Motion in that
appeal requesting various relief, including to bar the Berg Offices and Excel from
participating in that appeal.
6. I have read and am familiar with DOFF's Motion, the Opposition and
Reply regarding it in its appeal, and the Order on same. A true and correct copy of
that Order is attached hereto as "Exhibit B" and is incorporated herein by this
reference as though fully set forth. Among the issues being considered on DOFF's
Motion is the same relief sought herein by Taitz, as identified above. The parties
are accordingly awaiting a further Order on DOFF's Motion.
7. Plaintiffs in opposition to DOFF's subject Motion recently revealed
that: "The "Law Offices of Philip Berg" is not a separate entity, but a fictitious
business name of Philip Berg, and is represented by Philip Berg, in pro per. "
(Opposition, pg. 3.) A true and correct copy of the subject portions of that brief is
attached hereto as "Exhibit C" and is incorporated herein by this reference as
though fully set forth.
8. Plaintiffs do not specify in their pleadings what form of entity
(corporation, etc.) Excel purports to be. Plaintiffs merely allege that Excel has a
business address in New Jersey. (First Amended Complaint, ,-r 5.) A true and
correct copy of the subject portions of that Complaint is attached hereto as
"Exhibit D" and is incorporated herein by this reference as though fully set forth.
Ill
Ill
-11-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
9. Publically-available records from New Jersey have been searched to
determine if Excel exists and, if so, what type of entity it may be and if it
maintains "active" status or is in "good standing" with New Jersey authorities
regulating business entities in that State. No record has been found from New
Jersey that Excel is any existing business entity.
2013 deadline.
the Court of Appeals considering it and not yet having issued a second Order on it.
Such Order likely will affect handling of this appeal. For this additional reason,
Taitz is proceeding pursuant to Circuit Rule 27-3 where the Motion in DOFF's
appeal is pending, and the second Order on said Motion may not be issued until
after the December 24, 2013 deadline in Taitz's appeal particularly where briefing
in DOFF's appeal is stayed. Taitz therefore certifies that to avoid irreparable harm
relief is needed in less than twenty-one (21) days.
13. The relief sought by Taitz, regarding whether the Berg Offices and
Excel have legal standing necessary to participate in this appeal, was not available
-12-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
in the District Court.
I hereby declare under penalty of perjury under the laws of the State of
California and of the United States of America that the above is true and correct.
Executed on December 6, 2013, in Costa Mesa, California.
-13-
By: ____________________ _
Jeffrey P. Cunningham, Esq.
Declarant
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "A"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8:11-cv-00485-AG-AJW Document 636-1 Filed 06/21/13 Page 1 of 17 Page ID
#:16000
IN THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL. No. 1928 Disciplinary Docket No.3
Petitioner
No. 208 DB 2010
v.
Attorney Registration No. 9867
PHILIP J. BERG.
Respondent (Montgomery County)
ORDER
PER CURIAM:
AND NOW, this 19
1
'l day of June, 2013, upon consideration of the Report and
Recommendations of the Disciplinary Board dated March 8. 2013. respondent's
Objections and Exceptions and response thereto. the request for oral argument is
denied and it is hereby
ORDERED that Philip J. Berg is suspended from !he Bar of this Commonwealth
for a period of two years and he shall comply with all the provisions of Rule 217.
Pa.R.D.E.
Jt is further ORDERED that respondent shall pay costs to the Disciplinary Board
pursuant to Rule 208(g). Pa.R.D.E.
A Tnre Copy PilfTICi.l NiCOla
As Of 6/19rl01 J
. ~ &J
t i ~ .. ~
5uprente Court of Pennsyfvanfa
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "B"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case: 13-56250 10/28/2013 ID: 8839652 DktEntry: 11
UNITED STATES COURT OF APPEALS
LISA LIBERI; et al., No. 13-56250
Page: 1 of 3
FILED
OCT 28 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiffs - Appellees,
v.
D.C. No. 8: 11-cv-00485-AG-AJW
Central District of California,
Santa Ana
ORL Y TAITZ, AKA Dr. Orly Taitz; et al.,
Defendants,
and
DEFEND OUR FREEDOMS
FOUNDATIONS, INC.,
Defendant - Appellant.
ORDER
The court has received appellant's "urgent motion for declaratory and
injunctive relief," filed August 6, 2013 (the "Motion"), the opposition of appellees
Lisa Liberi, Lisa M. Ostella, and Go Excel Global, filed August 6, 2013 (the
"Opposition"), and appellant's reply in support of the Motion.
The court construes the Opposition, in part, as a motion of Stephen H.
Marcus, Esq., and Randy A. Berg, Esq., to withdraw as retained counsel for
appellees Philip J. Berg and The Law Offices of Philip J. Berg. So construed, the
jp/MOATT
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case: 13-56250 10/28/2013 ID: 8839652 DktEntry: 11 Page: 2 of 3
motion is granted. The Clerk shall amend the docket to reflect that attorneys
Marcus and Berg are no longer counsel of record for appellees Philip J. Berg and
The Law Offices of Philip J. Berg. Additionally, the Clerk shall update the docket
to reflect that the business address for appellee The Law Offices of Philip J. Berg
is: 555 Andorra Glen Court, Suite 12, Lafayette Hill, Pennsylvania 19444-2531.
To date, appellees Philip J. Berg and The Law Offices of Philip J. Berg have
not filed any response to the August 6, 2013 Motion. Within 21 days after the date
of this order, appellees Philip J. Berg and The Law Offices of Philip J. Berg shall
respond to the Motion. The response shall state whether appellee Philip J. Berg
seeks to represent The Law Offices of Philip J. Berg in a pro se capacity and, if so,
the legal basis for the prose representation. Cf In re Highley, 459 F.2d 554, 555
(9th Cir. 1972) (a corporation must be represented by counsel); Church of the New
Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986) (unincorporated
associations must be represented by counsel); Licht v. Am. West Airlines, 40 F.3d
1058, 1059 (9th Cir. 1994) (per curiam) (a partner may not represent his or her
own interest in a partnership prose); United States v. High Country Broad. Co., 3
F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (a sole shareholder may not represent
a corporation pro se ).
jp/MOATT 2
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Failure to respond to this order may result in the waiver of all claims and
arguments in this appeal by The Law Offices of Philip J. Berg.
Briefing is stayed pending further court order.
jp/MOATT 3
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Jessica Perry
Deputy Clerk
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "C"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
STEPHEN H. MARCUS, ESQ. [CSBN 48294]
RANDY A. BERG, ESQ. [CSBN 128445]
GITTLER & BRADFORD
10537 Santa Monica Blvd., Third Floor
Los Angeles, CA 90025
Telephone (310) 474-4007
e-mail: smarcus@gblaw.net
Attomeys for Plaintiffs/Respondents
LISA LlBERI, LISA M. OSTELLA, and GOEXCEL GLOBAL,
IN THE NINTH CIRCUIT COURT OF APPEALS
Case No. 13-56250
DEFEND OUR FREEDOMS FOUNDATION
Appellant/Defendant
v.
LISA LIBERI, PHILIP BERG, LISA OSTELLA, LAW OFFICES OF PHILIP
BERG, GOEXCEL GLOBAL
Respondents/Plaintiffs
OPPOSITION TO "MOTION FOR DECLARATORY RELIEF
REGARDING REPRESENTATION OF LISA LIBERI, LISA OSTELLA,
AND GOEXCEL GLOBAL
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
counsel for Philip Berg.
4. The "Law offices of Philip Berg" is not a separate entity, but a
fictitious business name of Philip Berg, and is represented by Philip Berg, in pro
per.
5. The nature of the entity of Go Excel Global is not an issue before this
Court or an issue raised in the Appellant's appeal. Rather, if Appellant believes
this is a valid issue (as opposed to an attempt to harass the Respondents), it should
be raised at the appropriate time by appropriate motion in the District Court.
Respectfully submitted,
STEPHEN H. MARCUS, ESQ.
RANDY A. BERG, ESQ.
members of

LISA LIBERI, LISA M. OSTELLA, and
GOEXCEL GLOBAL,
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "D"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
11-cv-00485-AG -AJW Document 231 Filed 06/17/11 Page 1 of 25 Page ID
#:6391
1 Philip J. Berg, Esquire
2
Email: philjberg@gmail.com
PA Identification No. 09867
3 LAW OFFICES OF PHILIP J. BERG
4
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
5 Ph: (610) 825-3134
6 Fx: (610) 834-7659
:u (')
-< o r-
1
Attorney for: Plaintiffs
'!>
.-!-"'

:>-<I' <I>
-i-1
);P
7
8
9
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
SOUTHERN DIVISION !
10
LISALIBERI
11 and
12 LISA M. OSTELLA,
and
13
GO EXCEL GLOBAL
14 and
CIVIL ACTION NO.
8:11-cv-00485-AG (AJWx)
JURY TRIAL DEMANDED
,...,
Cl
(...
c:
:z:
_,
-u
:z:

co
15
PHILIP J. BERG, ESQUIRE
and
PLAINTIFFS FIRST AMENDED
COMPLAINT
16 THE LAW OFFICES OF PHILIP J.
17
BERG
Plaintiffs, :
18
vs.
19
ORL Y T AITZ alk/a DR. ORL Y TAITZ :
20
and
21 LAW OFFICES OF ORL Y TAITZ
and
22
ORL Y T AITZ, INC.
23 and
24
DEFEND OUR FREEDOMS
FOUNDATIONS, INC.
25 and
26 NEIL SANKEY
and
27
SANKEY INVESTIGATIONS, INC.
28 and
Liberi. el ql v. Taitz. et al, Case No. 8: 11-cv-00485 (AG), Plaintiffs First Amended Complaint
1
..,
-
r
r'11
0
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8: 1-cv-00485-AG -AJW Document 231 Filed 06/17/11 Page 2 of 25 Page 10
#:6392
I TODD SANKEY
2
and
THE SANKEY FIRM, INC.
3 and
4 REED ELSEVIER, INC.
and
5 LEXISNEXIS GROUP, INC., a
6 Division of Reed Elsevier, Inc.
and
7
LEXISNEXIS, INC., a Division of
8 Reed Elsevier, Inc.
and
9
LEXISNEXIS RISK and
10 INFORMA.TION ANAL YTICS
11
GROUP, INC.
and
12 LEXISNEXIS SEISINT, INC. d/b/a
13 ACCURINT a Division of Reed
Elsevier, Inc.
14
and
15
LEXISNEXIS CHOICEPOINT, INC. a :
16
Division of Reed Elsevier, Inc.
and
17 LEXISNEXIS RISK SOLUTIONS,
18
INC., a Division of Reed Elsevier, Inc.
and
19
INTELIUS, INC.
20
and
ORACLE CORPORATION
21
and
22
DAYLIGHT CHEMICAL
23
INFORMATION SYSTEMS, INC.
and
24 YOSEF T AITZ, individually and as
25
Owner/CEO of Daylight Chemical
Information Systems, Inc.
26
and
27
DOES 1 through 186 INCLUSIVE
28
Defendants. .
Liberi. et al v. Taitz. el al, Case No. 8: 11-cv-00485 (AG), Plaintiffs First Amended Complaint
2
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8 1-cv-00485-AG -AJW Document 231 Filed 06/17/11 Page 3 of 25 Page ID
#:6393
I
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
PLAINTIFFS FIRST AMENDED COMPLAINT
I. NATURE OF ACTION
l. This is an action for damages, including permanent injunctive relie
against Defendants Orly Taitz alk/a Dr. Orly Taitz, Orly Taitz, Inc., Law Offices o
Orly Taitz Defend our Freedoms Foundations, Inc., Neil Sankey, Todd Sankey,
Sankey Investigations, Inc. and The Sankey Firm, Inc. for illegal access to
Plaintiffs private data; the publication of Plaintiffs private data; Invasion o
Privacy; Invasion of Plaintiffs rights to Solitude; Placing Plaintiffs in a False Light;
Disclosure of Private facts; Cyber-bullying; Cyber-stalking; Cyber-Harassment;
Slander; Libel; Defamation; Malicious Prosecution; Abuse of Process; Intentional
Infliction of Emotional Distress; and against Defendants, Reed Elsevier, Inc.;
LexisNexis Group, Inc.; LexisNexis, Inc., LexisNexis Risk Solutions, Inc.;
LexisNexis Risk & Information Analytics Group, Inc.; Seisint, Inc. d. b. a. Accurint;
ChoicePoint, Inc.; Intelius, Inc.; Daylight Chemical Information Systems, Inc;
Y osef Taitz; and Oracle Corporation seeking compensatory; statutory penalties;
and punitive damages due to Defendants' systematic and willful violation of inte
alia, the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. 1681, et seq.; the
California Information Practices Act, California Civil Code 1798 et. Seq.; the
California Investigative Consumer Reporting Agencies Act ("ICRAA"); California
Civil Code 1786 et seq.; the California Consumer Reporting Agencies Ac
Liberi. et ql v, Tairz. eta/. Case No. 8: 11-cv-00485 (AG), Plaintiffs First Amended Complaint
3
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8 1-cv-00485-AG -AJW Document 231 Filed 06/17/11 Page 4 of 25 Page ID
#:6394
1 ("CCRAA"), California Civil Code 1785.11, 1785.14, 1785.19 and 1785.22;
2
Unfair Business Practices in violation of California Business Code 17200 et seq;
3
4
Negligence, California Civil Code 1714(a); Breach of Duty, California Civil
5
6
Code 1714(a); Invasion of Privacy; Right to be Let Alone (Right to Privacy);
Defamation; Libel; Slander; Res Ipsa Loquitor Negligence and Emotional Distress.
7
8
9
10
11
This action also seeks to redress Defendants' unlawful invasion of the
constitutional, common law and statutory privacy rights of the Plaintiffs under
state and federal law; and seeks restitution and injunctive relief pursuant to the
12 FCRA, CCRAA and California Business and Professions Code 17200 et seq. and
13
to enjoin all the Defendants' unlawful conduct; recovery of actual damages;
14
15 statutory damages; civil damages; punitive damages and other damages for
16
Defendants' unlawful acts, disgorgement of all unjust gains and attorney fees and
17
18
costs.
19 II. JURISDICTION AND VENUE:
20
2. This Court has general jurisdiction of this action pursuant to the
21
22 provisions of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. 168lp, Federal
23
24
25
26
27
28
Question jurisdiction pursuant to 28 U.S.C. 1331 and diversity jurisdiction under
28 U .S.C. 1332. This Court also has supplemental jurisdiction to consider claims
arising under California State Law pursuant to 28 U.S.C. 1367.
Liberi. el a/ v. Tailz. et al. Case No. 8: 11-cv-00485 (AG), Plaintiffs First Amended Complaint
4
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case : 11-cv-00485-AG -AJW Document 231 Filed 06/17/11 Page 5 of 25 Page I D
#: 6395
1 3. Venue as to Defendants is proper in this judicial district pursuant to 15
2
U.S.C. 1681p and 28 U.S.C. 1391. Defendants reside in this District within the
3
4
meaning of 28 U.S.C. 1391(b) and (c), and they transact business, have agents,
5
6
and otherwise have sufficient contacts within this District to subject them to
personal jurisdiction herein. Moreover, the events outlined herein occurred in the
7
8 State of California.
9
10
11
III. PARTIES
4. Plaintiff, Lisa Liberi [hereinafter "Liberi"] is an adult individual who
12 resides in the State of New Mexico and has since early November 2002;
13
14
5.
Plaintiff, Go Excel Global, is owned and operated by Lisa Ostella,
15 with a business address of 2227 US Highway 1, #245, North Brunswick, NJ
16
08902-4402;
17
18
6.
Plaintiff, Philip J. Berg, Esquire [hereinafter at times "Berg"] is an
19 adult individual who resides in the State of Pennsylvania;
20
21
7. Plaintiff, The Law Offices of Philip J. Berg is a law firm, with a staff,
22 owned and operated by Plaintiff Philip J. Berg, with a business address of 555
23
Andorra Glen Court, Suite 12, Lafayette Hill, PA 19444-2531;
24
25
8.
Plaintiff, Lisa M. Ostella [hereinafter "Ostella"] is an adult individual
26 who resides in the State of New Jersey;
27
28
Libri. eta/ v. Tajtz. et a/, Case No. 8: 11-cv-00485 (AG), Plaintiffs First Amended Complaint
5
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case No. 13-56253
Lisa Liberi, et al. ,
vs.
Orly Taitz, et al.,
)
)
)
)
)
)
)
)
)
)
__________________________)
A_ppeal from the United States
00485-AG (AJWx)
ORL Y TAITZ, FOR ORDER BARRING GITTLER & BRADFORD FROM
REPRESENTING APPELLEES, LISA LIBERI, LISA OSTELLA AND GO
EXCEL GLOBAL, IN THE ALTERNATIVE CLARIFYING
REPRESENTATION OF SUCH PLAINTIFFS, AND STAYING BRIEFING
SCHEDULE; CERTIFICATION PURSUANT TO CIRCUIT RULE 27-3;
MEMORANDUM OF POINTS AND AUTHORITIES; SUPPORTING
DECLARATION
Kim Schumarn, Esq., CSBN 170942
CSBN 151067
SCHUMANN LLP
3100 S. Bristol St." Suite 100
Costa Mesa, CA 9L626
(714) 850-0210- telephone
(714) 850-0551- fax
Orly Taitz
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Certification regarding her Emergency Motion for an Order disqualifying Gittler
& Bradford, Stephen H. Marcus, Esq. and Randy Berg, Esq. from representing
Plaintiffs and Appellees, LISA LIBERI, LISA OSTELLA and GO EXCEL
GLOBAL (collectively "Plaintiffs"), due to the absence of any Substitution of
Attorney or Request for Approval of Substitution or Withdrawal of Counsel
signed by Plaintiffs substituting such counsel in place of Plaintiff and Appellee,
PHILIP J. BERG ("Berg"). Berg previously represented Plaintiffs but is barred
from further representing them due to suspension of his license to practice law in
his home State of Pennsylvania.
In addition, there is no Order, including any issued by the District Court
(Hon. Andrew Guilford, Judge), substituting Gittler & Bradford in place of Berg
as counsel for Plaintiffs.
In the alternative to barring Gittler & Bradford from representing Plaintiffs
in this appeal, Taitz seeks an Order clarifying representation of Plaintiffs given the
absence of any Substitution of Attorney or Order allowing same.
pending resolution of issues regarding representation of and participation by
Plaintiffs in this appeal.
CA 90025-4999, (310) 474-4007, smarcus@gblaw.net and raberg@gblaw.net for
-1-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
2531, (610) 825-3134, philjberg@gmail.com, for Plaintiff/Appellee, PHILIP J.
philjberg@gmail.com.
20 13 deadline.
3. Further, Defendant/Appellant, DEFEND OUR FREEDOMS
(Liberi, et al. v. Taitz. et al.; Case No. 13-56250). DOFF has filed a Motion in that
appeal requesting various relief, including to bar Gittler & Bradford from
representing Plaintiffs, or alternatively to clarify representation of them in that
appeal. The Court of Appeal has issued an Order requiring Berg to file a response
to the Motion, including to state whether he seeks to represent the Berg Offices,
and to stay briefing until further Order. See, "Exhibit B" hereto.
Court of Appeals is considering that issue, as well as DOFF's other requests for
relief including but not limited to representation of Plaintiffs in DOFF's appeal.
The parties are accordingly awaiting a further Order on DOFF's Motion.
-2-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
the Court of Appeals considering it and not yet having issued a second Order on it,
including on the issues raised herein. Such Order likely will affect handling of this
appeal. For this additional reason, Taitz is proceeding pursuant to Circuit Rule 27-
3 where the Motion in DOFF's appeal is pending, and the second Order on said
Motion may not be issued until after the December 24, 2013 deadline in Taitz's
appeal particularly where briefing in DOFF's appeal is stayed. Taitz therefore
certifies that to avoid irreparable harm relief is needed in less than twenty-one (21)
days.
7. The relief sought by Taitz, regarding representation of Plaintiffs in
her appeal, was not available in the District Court.

Ktm Esq.
-3-
Jeffrey P. Cunnmgham, Esq
Appellant, ORL Y T AlTZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Emergency Motion for an Order disqualifying Gittler & Bradford, Stephen H.
Marcus, Esq. and Randy Berg, Esq. from representing Plaintiffs and Appellees,
LISA LIBERI, LISA OSTELLA and GO EXCEL GLOBAL (collectively
"Plaintiffs"), due to the absence of any Substitution of Attorney or Request for
Approval of Substitution or Withdrawal of Counsel signed by Plaintiffs
substituting such counsel in place of Plaintiff and Appellee, PHILIP J. BERG
("Berg"). Berg previously represented Plaintiffs but is barred from further
representing them due to suspension of his license to practice law in his home
State of Pennsylvania.
In addition, there is no Order, including any issued by the District Court
(Hon. Andrew Guilford, Judge), substituting Gittler & Bradford in place of Berg
as counsel for Plaintiffs.
In the alternative to barring Gittler & Bradford from representing Plaintiffs
in this appeal, Taitz seeks an Order clarifying representation of Plaintiffs given the
absence of any Substitution of Attorney or Order allowing same.
pending resolution of issues regarding representation of and participation by
Plaintiffs in this appeal.
I. Introduction
Taitz has appealed from the June 18, 2013 Order of the District Court (Hon.
Plaintiffs, Berg and Plaintiff and Appellee, LAW OFFICES OF PHILIP J. BERG
(the "Berg Offices").
-4-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
two years. See, "Exhibit A" hereto. Berg, thus, cannot represent any other party.
II. The Court of Appeals in Related Case No 13-56250 Is Considering the
Similar Motion of AppeiJant, Defend Our Fteedoms Foundations, and
Should Consider The Same Issues and Relief in This Case
("DOFF"), has filed a related appeal (Liberi, et al. v. Taitz, et al.; Case No. 13-
56250).
DOFF has filed a Motion in that appeal requesting various relief, including
to bar Gittler & Bradford from representing Plaintiffs, or alternatively to clarify
representation of them in that appeal. The Court of Appeal has issued an Order
requiring Berg to file a response to the Motion, including to state whether he seeks
to represent the Berg Offices, and to stay briefing until further Order. See,
"Exhibit B" hereto.
Among the issues being considered on DOFF's Motion is the same relief
sought herein by Taitz, as identified above. The parties are accordingly awaiting a
further Order on DOFF's Motion. Thus, this Court in Taitz's appeal should
consider and grant to her the same relief being considered in DOFF's appeal,
including as to representation of Plaintiffs herein.
III. There is No Required Substitution of Attorney, Request for Approval of
Substitution or Withdrawal of Counsel, Nor Order Substituting Gittler
& Bradford in Place of Berg as Counsel for Plaintiffs
Berg represented all Plaintiffs in this case until his license to practice was
suspended in his home state of Pennsylvania on or about June 19, 2013. See,
"Exhibit A" hereto. Berg, thus, cannot represent any other party.
-5-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Berg's suspension thus required formal substitution of counsel in his place
for Plaintiffs, via Substitution of Attorney, Request for Approval of Substitution
or Withdrawal of Counsel. Gittler & Bradford (Stephen H. Marcus, Esq. and
Randy Berg, Esq.) purport to represent Plaintiffs, but do not due to lack of any
Substitution of Attorney, Request for Approval of Substitution or Withdrawal of
Counsel, appointing them as such in place of Berg.
For example, the Local Rules of the Central District of California provide in
relevant part:
1. "L.R. 83-2.3.1 Appearance by Attorney. Whenever a party has
appeared by an attorney, the party may not thereafter appear or act pro se, except
upon order made by the Court after notice to such attorney and to any other
parties who have appeared in the action. "
There is no Order under this Rule regarding representation of Plaintiffs
following Berg's suspension.
2. "L.R. 83-2.3.2 Motion for Withdrawal. An attorney may not withdraw
as counsel except by leave of court. An application for leave to withdraw must be
made upon written notice given reasonably in advance to the client and to all
other parties who have appeared in the action. "
There is no Order under this Rule regarding withdrawal of Berg as counsel
for Plaintiffs following his suspension.
3. "L.R. 83-2.3.3 Individuals. When an attorney of record for any
reason ceases to act for a party, such party must appear pro se or appoint another
attorney by a written substitution o(attornev signed bv the party and the
attornevs." (Emphasis added.)
This Rule applies to Liberi and Ostella. There is no required Substitution of
Attorney (or Request for Approval of Substitution or Withdrawal of Counsel)
-6-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
appointing counsel for Liberi or Ostella, including Gittler & Bradford, in place of
Berg following his suspension.
4. "L.R. 83-2.3.4 Organizations. An attorney requesting leave to
withdraw from representation of an organization of any kind (including
corporations, limited liability corporations, partnerships, limited liability
partnerships, unincorporated associations, trusts) must give written notice to the
organization of the consequences of its inability to appear pro se. "
This Rule applies to Go Excel Global. There is no required Substitution of
Attorney (or Request for Approval of Substitution or Withdrawal of Counsel)
appointing any counsel for Go Excel Global, including Gittler & Bradford, in
place of Berg following his suspension, nor evidence of this required notice to Go
Excel Global.
Further, Go Excel Global claims to be an entity of an unspecified type that
cannot, as a matter of law, represent itself. It must be represented herein by
licensed legal counsel.
A corporation must be represented by counsel. In re Highley, 459 F.2d 554,
555 (9th Cir. 1972). An unincorporated association must be represented by counsel.
Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986).
A partner may not represent his or her own interest in a partnership pro se. Licht v.
Am. West Airlines, 40 F. 3d 1058, 1059 (9th Cir. 1994). A sole shareholder may not
represent a corporation prose. United States v. High Country Broad Co., 3 F.3d
1244, 1245 (9th Cir. 1993). Thus, Go Excel Global cannot appear in prose and
must be represented by counsel.
Plaintiffs may contend that representation of them by Gittler & Bradford has
been accomplished by Order in the District Court, but this contention (if made)
would be incorrect. There is no such Order.
-7-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Moreover, if there was an Order from the District Court purporting to
appoint Gittler & Bradford as Plaintiffs' counsel, this would be a nullity and
insufficient to accomplish same where the applicable Rules require "written
substitution of attorney signed by the party and the attorneys" as to Liberi and
Ostella and the written notice to "Organizations" required by L.R. 83-2.3.4 as to
Go Excel Global.
Compounding Gittler & Bradford's failure to comply with these
requirements, is the lack of any writing or other evidence establishing that Liberi
and Ostella even know that Berg can longer represent them and that Gittler &
Bradford purport to represent them.
Under these circumstances, an Order disqualifying Gittler & Bradford,
Stephen H. Marcus, Esq. and Randy Berg, Esq. from representing Plaintiffs should
issue or, in the alternative, clarifying representation of Plaintiffs given the absence
of any Substitution of Attorney or Order allowing same. As stated, this same issue
is being considered by this Court in DOFF's related appeal and should be
considered herein.
IV. The Brieimg Schedule in Taitz's Appeal Should Be Stayed, as Has Been
Ordered in DOFF's Appeal, Pending Resolution of Issues Regarding
Representation of Plaintiffs
The effect of Berg's suspension on his ability to represent Plaintiffs, as well
as regarding Gittler & Bradford's purported representation of Plaintiffs, are key
issues herein that should be decided before proceeding with the parties filing
briefs and their Excerpts of Record.
includes to stay briefing in that related matter until such issues are resolved. See,
"Exhibit B" hereto.
-8-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
briefing pending the Court's disposition of the motion: ... (6) appointment or
withdrawal of counsel." (Emphasis added.)
Taitz's Motion concerns "appointment" of counsel for Plaintiffs in that
seeks to resolve who, if any counsel, will represent them in the appeal. It also
concerns "withdrawal of counsel" regarding the Berg Offices with regard to
Berg's inability to represent Plaintiffs.
Thus, under Circuit Rule 27-11, the filing of this Motion operates to stay the
briefing schedule herein.
V. Conclusion
should issue disqualifying Gittler & Bradford, Stephen H. Marcus, Esq. and Randy
Berg, Esq. from representing Plaintiffs or, in the alternative, clarifying
representation of Plaintiffs and staying the briefing schedule in this appeal
pending resolution of these issues.
Is/- Jeffrey P. Cunningham
By: ________________________ __
- 9-
Kim Schumann
1
Esq.
Jeffrey P. Cunmngham, s q ~
Attorneys for Derendant ana
Appellant, ORL Y TAITZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
DECLARATION OF JEFFREY P. CUNNINGHAIVfr ESQ. SUPPORTING
MOTION BY PLAINTIFF AND APPELLAN , ORL Y T AITZ
in the law offices of Schumann! Rosenberg, LLP, counsel for Defendant and
Appellant, ORLY TAITZ ("Taitz"). I make this declaration based on my personal
Order disqualifying Gittler & Bradford, Stephen H. Marcus, Esq. and Randy Berg,
Esq. from representing Plaintiffs and Appellees, LISA LIBERI, LISA OSTELLA
and GO EXCEL GLOBAL (collectively "Plaintiffs"), or in the alternative
clarifying representation of Plaintiffs. Taitz also seeks an Order staying the
briefing schedule in this matter, pending resolution of issues regarding
representation of and participation by Plaintiffs in this appeal.
3. I have read and am familiar with all pleadings and orders in the
underlying case in the District Court (Hon. Andrew Guilford, Judge). Plaintiff and
Appellee, PHILIP J. BERG ("Berg") represented Plaintiffs, himself and Plaintiff
and Appellee, LAW OFFICES OF PHILIP J. BERG (the "Berg Offices") in this
case until his license to practice was suspended in his home state of Pennsylvania
on or about June 19, 2013.
-10-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
forth.
5. Gittler & Bradford, Stephen H. Marcus, Esq. and Randy Berg, Esq.
purport to represent Plaintiffs in this matter. However, there is no Substitution of
Attorney or Request for Approval of Substitution or Withdrawal of Counsel
signed by Plaintiffs and filed with the Court substituting such counsel in place
Berg following his suspension. In addition, there is no Order substituting Gittler &
Bradford in place of Berg as counsel for Plaintiffs.
6. Defendant/Appellant, DEFEND OUR FREEDOMS FOUNDATIONS
("DOFF") (represented by Taitz), has filed a related appeal (Liberi, et al. v. Taitz.
et al.; Case No. 13-56250). I have read and am familiar with the pleadings and
Motions filed in that appeal. DOFF has filed a Motion in that appeal requesting
various relief, including to disqualifying Gittler & Bradford, Stephen H. Marcus,
Esq. and Randy Berg, Esq. from representing Plaintiffs, or in the alternative
clarifying representation of Plaintiffs.
7. I have read and am familiar with DOFF's Motion, the Opposition and
Reply regarding it in its appeal, and the Order on same. A true and correct copy of
that Order is attached hereto as "Exhibit B" and is incorporated herein by this
reference as though fully set forth. Among the issues being considered on DOFF's
Motion is the same relief sought herein by Taitz, as identified above. The parties
are accordingly awaiting a further Order on DOFF's Motion.
-11-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
20 13 deadline.
11. The relief sought by Taitz, regarding representation of Plaintiffs in
this appeal, was not available in the District Court.
-12-
By: ____________________ _
Declarant
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "A"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8:11-cv-00485-AG-AJW Document 636-1 Filed 06/21/13 Page 1 of 17 Page ID
#:16000
IN THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL. No. 1928 Disciplinary Docket No. 3
Petitioner
No. 208 DB 2010
v.
PHILIP J. BERG.
ORDER
PER CURIAM:
AND NOW, this 19m day of June, 2013. upon consideration of the Report and
Objections and Exceptions and response thereto. the request for oral argumen1 is
ORDERED that Philip J. Berg is suspended from the Bar of this Commonwealth
for a period of two years and he shall comply with an !he provisions of Rule 217.
Pa.R.D.E.
Jt is further ORDERED that respondent shall pay costs to the Disciplinary Board
A ~ Copy Pa111Ci.l NiCola
A5 Of 6/19rJ.013
. r.u- Kz 'dJ.)
~ ~ t ~ e ~ l C
Supreme Court of Penn5'(fvanra
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "B"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case: 13-56250 10/28/2013 ID: 8839652 DktEntry: 11
Page: 1 of 3
FILED
OCT 28 2013
v.
D.C. No. 8: 11-cv-00485-AG-AJW
Santa Ana
ORL Y TAITZ, AKA Dr. Orly Taitz; et al.,
Defendants,
and
DEFEND OUR FREEDOMS
FOUNDATIONS, INC.,
ORDER
Marcus, Esq. , and Randy A. Berg, Esq., to withdraw as retained counsel for
jp/MOATT
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Marcus and Berg are no longer counsel of record for appellees Philip 1. Berg and
The Law Offices of Philip 1. Berg. Additionally, the Clerk shall update the docket
to reflect that the business address for appellee The Law Offices of Philip 1. Berg
not filed any response to the August 6, 20 13 Motion. Within 21 days after the date
ofthis order, appellees Philip 1. Berg and The Law Offices of Philip J. Berg shall
own interest in a partnership prose); United States v. High Country Broad. Co., 3
a corporation prose).
jp/MOATT 2
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
jp/MOATT
3
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Jessica Perry
Deputy Clerk
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case No. 13-56253
Lisa Liberi, et al.,
vs.
Orly Taitz, et al.,
)
)
)
)
)
)
)
)
)
)
__________________________ )
Appeal from the United States
00485-AG (AJWx)
ORLY TAITZ, FOR ORDER DISQUALIFYING APPELLEE, PHILIP J.
BERG, FROM REPRESENTING APPELLEE, LAW OFFICES OF PHILIP
J. BERG AND STAYING BRIEFING SCHEDULE; CERTIFICATION
PURSUANT TO CIRCUIT RULE 27-3; MEMORANDUM OF POINTS AND
AUTHORITIES; SUPPORTING DECLARATION
Kim Schumann, Esq. , CSBN 170942
CSBN 151067
SCHUMANN LLP
3100 S. Bristol St.).. Suite 100
Costa Mesa, CA 9 L626
(714) 850-0210- telephone
(714) 850-0551 -fax
Orly Taitz
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Defendant and Appellant, ORL Y T AITZ ("Taitz"), respectfully submits this
Certification regarding her Emergency Motion for an Order disqualifying Plaintiff
and Appellee, PHILIP J. BERG ("Berg"), from representing Plaintiff and
Appellee, LAW OFFICES OF PHILIP J. BERG ("Berg Offices"), due to Berg's
suspension of his license to practice law in his home State of Pennsylvania. Taitz
also seeks an Order staying the briefing schedule in this matter, pending resolution
of issues regarding representation of and participation by the Berg Offices in this
appeal.
CA 90025-4999, (310) 474-4007, smarcus@gblaw.net and raberg@gblaw.net. for
2531, (610) 825-3134, philjberg@gmail.com, for Plaintiff/Appellee, PHILIP J.
philjberg@gmail.com.
requiring Taitz' s Opening Brief and Excerpts of Record to be filed and served by
2013 deadline.
-1-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
(Liberi, et al. v. Taitz, et al.; Case No. 13-56250). DOFF has filed a Motion in that
appeal requesting various relief, including to bar Berg from representing the Berg
Offices. The Court of Appeal has issued an Order requiring Berg to file a response
to the Motion, including to state whether he seeks to represent the Berg Offices,
and to stay briefing until further Order. See, "Exhibit B" hereto.
Court of Appeals is considering that issue, as well as the other requests for relief
sought by DOFF, with the parties accordingly awaiting a further Order on DOFF's
Motion.
conferred via email with all other counsel. Appellees' counsel on December 4,
resolve the issues presented herein. Further, Appellees through their counsel are
-2-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
7. The relief sought by Taitz, regarding Berg and representation of the
Berg Offices in this appeal, was not available in the District Court.
B y ~ ~ ~ ~ ~ ~
Kim Schumannl E q.
-3-
Jeffrey P. Cunnmgham, E q.
Attorneys for Derendant ana
Appellant, ORL Y T AITZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Emergency Motion for an Order disqualifying Plaintiff and Appellee, PHILIP J.
BERG ("Berg"), from representing Plaintiff and Appellee, LAW OFFICES OF
PHILIP J. BERG ("Berg Offices"), due to Berg's suspension of his license to
practice law in his home State of Pennsylvania. Taitz also seeks an Order staying
the briefing schedule in this matter, pending resolution of issues regarding
representation of and participation by Berg Offices in this appeal.
I. Introduction
Taitz has appealed from the June 18, 2013 Order of the District Court (Hon.
Plaintiffs and Appellees, LISA LIBERI, LISA OSTELLA, GO EXCEL
GLOBAL, Berg and the Berg Offices (collectively "Plaintiffs").
two years. See, "Exhibit A" hereto. Berg, thus, cannot represent any other party,
including but not limited to the Berg Offices.
II. The Court of Appeals in Related Case No 13-56250 Has Granted
Appellant, Defend Our Freedoms Foundations, the Same Relief Sought
Herein by Taitz and Should Do So in This Case
("DOFF"), has filed a related appeal (Liberi. et al. v. Taitz, et al.; Case No. 13-
56250).
Due to Berg's suspension, DOFF filed a Motion in that appeal requesting
various relief, including to bar Berg from representing the Berg Offices. The Court
-4-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
of Appeal issued an Order requiring Berg to file a response to the Motion,
including to state whether he seeks to represent the Berg Offices, as well as
staying briefing in that appeal. See, "Exhibit B" hereto.
Berg has not, as required, filed any response to DOFF's Motion, and is thus
barred from representing the Berg Offices. The Order also provides that "failure to
respond to it may result in the waiver of all claims and arguments in the appeal by
The Law Offices of Philip J. Berg." ("Exhibit B" Order, pg. 3.) The Court of
Appeals is considering that issue, as well as the other requests for relief sought by
DOFF, with the parties accordingly awaiting a further Order on DOFF's Motion.
Because Berg has been barred from representing the Berg Offices in
DOFF's related appeal, and the same issue is presented herein, Taitz respectfully
submits that Berg should also be barred from representing the Berg Offices in this
appeal. Taitz also, for the same reasons expressed in DOFF's Motion and as
reflected in the Court of Appeals' "Exhibit B" Order, respectfully submits that the
Berg Offices should be barred from participating in this appeal, including to waive
all claims and arguments herein.
III. As a Matter of Law, Berg Due to His Suspension Cannot Represent the
Berg Offices and That Purported Entity Cannot Represent Itself
The Berg Offices claims to be an entity of an unspecified type that cannot,
as a matter of law, represent itself. It must be represented herein by licensed legal
counsel.
A corporation must be represented by counsel. In re Highley, 459 F.2d 554,
555 (9th Cir. 1972). An unincorporated association must be represented by counsel.
Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986).
A partner may not represent his or her own interest in a partnership pro se. Licht v.
Am. West Airlines, 40 F. 3d 1058, 1059 (9th Cir. 1994). A sole shareholder may not
-5-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
represent a corporation prose. United States v. High Country Broad Co., 3 F.3d
1244, 1245 (9th Cir. 1993).
Thus, as found by this Court in its "Exhibit B" Order, if the Berg Offices is
any type of entity as referenced in the above cases, it must be represented by
licensed legal counsel and cannot purport to represent itself pro se. Berg cannot
represent the Berg Offices or any other Plaintiff due to his suspension. (See,
"Exhibit A.")
IV. The Briefmg Schedule in Taitz's Appeal Should Be Stayed, as Has Been
Ordered in DOFF's Appeal. Pending Resolution of Issues Regarding
Representation of the Berg Offices
The effect of Berg's suspension on his ability to represent the Berg Offices,
as well as regarding representation of it and whether it should be barred from
participating in this appeal, are key issues herein that should be decided before
proceeding with the parties filing briefs and their Excerpts of Record.
includes to stay briefing in that related matter until such issues are resolved.
briefing pending the Court's disposition of the motion: ... ( 6) appointment or
withdrawal of counsel."
Taitz's Motion concerns "appointment" of counsel for the Berg Offices in
that seeks to resolve who, if any counsel, will represent it in the appeal. It also
concerns "withdrawal of counsel" regarding the Berg Offices with regard to
Berg's inability to represent the Berg Offices.
Ill
-6-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Thus, under Circuit Rule 27-11, the filing of this Motion operates to stay the
briefing schedule herein.
V. Conclusion
should issue disqualifying Berg from representing the Berg Offices, and staying
the briefing schedule in this appeal pending resolution of these issues.
By: ________________________ __
-7-
Kim Esq.
Jeffrey P. CunmnEham, E q.
Appellant, ORL Y T AITZ
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
DECLARATION OF JE.FFREYP. CUNNINGHAMtESJttSUPPORTING
MOTION BY PLAINTIFF AND APPELLAN , 0 Y T AITZ
in the law offices of Schumann I Rosenberg, LLP, counsel for Defendant and
Appellant, ORL Y TAITZ ("Taitz"). I make this declaration based on my personal
Order disqualifying Plaintiff and Appellee, PHILIP J. BERG ("Berg"), from
representing Plaintiff and Appellee, LAW OFFICES OF PHILIP J. BERG ("Berg
Offices"), due to Berg's suspension of his license to practice law in his home State
of Pennsylvania. Taitz also seeks an Order staying the briefing schedule in this
matter, pending resolution of issues regarding representation of and participation
by Berg Offices in this appeal.
forth.
- 8-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
20 13 deadline.
(Liberi, et al. v. Taitz, et al.; Case No. 13-56250). DOFF has filed a Motion in that
appeal requesting various relief, including to bar Berg from representing the Berg
Offices. The Court of Appeals has issued an Order requiring Berg to file a
response to the Motion, including to state whether he seeks to represent the Berg
Offices, and to stay briefing until further Order. I have read and am familiar with
DOFF's Motion, the Opposition and Reply regarding it, and the Order on same. A
true and correct copy of that Order is attached hereto as "Exhibit B" and is
incorporated herein by this reference as though fully set forth.
Court of Appeals is considering that issue, as well as the other requests for relief
sought by DOFF, with the parties accordingly awaiting a further Order on DOFF's
Motion.
-9-
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
conferred via email with all other counsel. Appellees' counsel on December 4,
resolve the issues presented herein. Further, Appellees through their counsel are
9. The relief sought by Taitz, regarding Berg and representation of the
Berg Offices in this appeal, was not available in the District Court.
-10-
I sf - Jeffrey P. Cunningham
By: ____________________ _
Declarant
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "A"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case 8:11-cv-00485-AG-AJW Document 636-1 Filed 06/21113 Page 1 of 17 Page ID
#:16000
JN THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL. No. 1928 Disciplinary Docket No.3
Petitioner
No. 208 DB 2010
v.
PHILIP J. BERG.
ORDER
PER CURIAM:
AND NOW, this 19
111
day of June, 2013, upon consideration of the Report and
Objections and Exceptions and response thereto. the request for oral argument is
ORDERED that Philip J. Berg is suspended from the Bar of this Commonwealth
for a period of two years and he shall comply with all the provisions of Rule 217.
Pa.R.D.E.
Jt is further ORDERED that respondent shall pay costs to the Discipllnal)' Board
A TNe Copy PaiTJCiil NICola
As Of 1 9 ~ 0 1 3
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
EXHIBIT "B"
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Case: 13-56250 10/28/2013 ID: 8839652 DktEntry: 11
Page: 1 of 3
FILED
OCT 28 2013
v.
D.C. No.8: 11-cv-00485-AG-AJW
Santa Ana
ORL Y T AITZ, AKA Dr. Orly Taitz; et al.,
Defendants,
and
DEFEND OUR FREEDOMS
FOUNDATIONS, INC.,
ORDER
Marcus, Esq., and Randy A. Berg, Esq., to withdraw as retained counsel for
jp/MOATT
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
Marcus and Berg are no longer counsel of record for appellees Philip J. Berg and
The Law Offices of Philip J. Berg. Additionally, the Clerk shall update the docket
to reflect that the business address for appellee The Law Offices of Philip J. Berg
not filed any response to the August 6, 2013 Motion. Within 21 days after the date
of this order, appellees Philip J. Berg and The Law Offices of Philip J. Berg shall
own interest in a partnership pro se ); United States v. High Country Broad. Co., 3
a corporation prose).
jp/MOATT 2
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
jp/MOATT 3
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Jessica Perry
Deputy Clerk
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M
F
R
I
E
N
D
S

O
F

T
H
E
F
O
G
B
O
W
.
C
O
M

2013-12-06 - LIBERI V TAITZ CDCA - Emergency Motion - 13-56253 Emergency Motion

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2013-12-06 - LIBERI V TAITZ CDCA - Emergency Motion - 13-56253 Emergency Motion

Uploaded by

Copyright:

Available Formats

Case No.

You might also like