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Case 8:11-cv-00485-AG-AJW Document 514 Filed 05/07/12 Page 1 of 17 Page ID #:13345

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Marc Steven Colen, sbn 108275 Law Offices of Marc Steven Colen 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 Tele: 818.716.2891 Attorney for Defendants Todd Sankey and The Sankey Firm, Inc.,

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION

) ( Lisa Liberi, et al., ) ) ) Plaintiffs, ) ) vs. ) ) Orly Taitz, et al., ) ) Defendants ) ) __________________________ )

Case No.: 8:11-cv-00485 AG (AJWx) Hon. Andrew Guilford Courtroom 10D DEFENDANTS TODD SANKEY AND THE SANKEY FIRMS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Date Action Filed: Trial Date: Hearing Date:

May 4, 2009 June 5, 2012 May 21, 2012

Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 1

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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 I. Background II. Procedural Posture III. Summary Judgment A. In General

TABLE OF CONTENTS 4 6 7 7 8 9 10 10 11 17

B. The Plaintiffs Burden C. SANKEYs Burden IV. Neil Sankeys Admissions Are Not Binding on Todd Sankey or The Sankey Firm, Inc. V. There Is No Evidence Supporting The Plaintiffs Motion VI. The Plaintiffs Bogus Claims VII. Conclusion

Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 2

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TABLE OF AUTHORITIES

Fed. R. Civ. P. 56(c) 8, 11

Anderson v. Liberty (Supreme Court 1986) 477 U.S. 2427 Calderone v. United States (6th Cir. 1986) 799 F2d 254 Castiglione v. U.S. Life (D AZ 2003) 262 F.Supp.2d 1025 Forsher v. Bugliosi, (Cal. 1980) 26 Cal. 3d 792 Harris v. Itzhaki (9th Cir 1999) 183 Fed3 1043 Helton v. United States (D.D.D., 2002) 191 F.Supp.2d 179 Hill v. National Collegiate Athletic Assn. (Cal. 1994) 7 Cal.4th 1 Keri v. Board of Trustees (7th Cir. 2006) 458 F3d 620 Nationwide Life v. Bankers Leasing (2nd Cir. 1999) 182 F3d 157 Nunez v. Superior Oil (5th Cir. 1978) 1119 Portland Retail v. Kaiser Health Plan (9th Cir. 1981) 662 F2d 641 Sanchez-Scott v. Alza (Cal.App. 2001) 86 Cal.App.4th 365 S. Calif. Gas Co. v. Santa Ana (9th Cir. 2003) 336 F3d 885 United States v. One Parcel (9th Cir. 1990) 904 F2d 487 Waldridge v. American Hoechst (7th Cir. 1994) 24 F3d 918

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Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 3

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I. BACKGROUND This case is based primarily on assertions of privacy claimed by Plaintiffs Lisa Liberi, Lisa Ostella and Philip Berg, also the attorney for the other Plaintiffs, wherein they seek to share a lottery win of in excess of ten billion dollars ($10,000,000,000.00). The target defendant is Orley Taitz who became a competitor to Berg in seeking donations to support their birther movement. Long before any settlement could be possible, the birther movement became a cash-cow for Berg acting as the other Plaintiffs attorney as well as a Plaintiff in his own right and for Orley who appears to have wanted her share of the donations. Additional defendants are the companies that provide on-line services that provide on-line background information to investigators, attorneys, financial institutions, companies, employers and any other that seek that information. It is clear that these defendants were/are intended by the Plaintiffs to be the deep-pockets from which the billions would be extorted and purloined. Who else has billions to give to the Plaintiffs? Next are the Sankey defendants, all private investigators, comprising Neil Sankey and his dba Sankey Investigations, The Sankey Firm, Inc. and Todd Sankey, president of The Sankey Firm. Neil Sankey had and has no business or other arrangement or connection with The Sankey Firm, Inc. He is not a shareholder, investor or employee of The Sankey Firm and operates completely on his own. Todd Sankey is the president of The Sankey Firm, Inc. While he and The Sankey Firm, Inc. have no business relationship with Neil Sankey, there is certainly a connection and relationship: Neil Sankey is Todd Sankeys father. Neil Sankey became involved with the birther movement and provided investigative services to Orley Taitz. Neil Sankey is an outstanding detective
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and amassed substantial information concerning the birther movement and those involved. ALL such information was obtained from publically available sources. For example, information concerning Liberis felony conviction and the rest of her criminal history was obtained from open records. Indeed, a document that was posted on the wall of a law enforcement facility which contained information concerning her criminal background as a felon, her photograph and her Social Security Number. That document has been submitted in filings on many occasions. To the extent that Liberi believes that the information is private, she must understand that what is public is just that, public. In contrast, neither Todd Sankey nor The Sankey Firm, Inc. (hereinafter collectively SANKEY) had and have any involvement with the alleged actions by Neil Sankey, his dba Sankey Investigations and the Taitz defendants. It is conceivable that Neil Sankey used SANKEYs email, etc., but that was without the knowledge, consent nor approval by SANKEY. Despite Liberis rote repetition in her Declaration that Neil Sankey is a part of The Sankey Firm, Inc. in order to keep SANKEY in this case, that is not so and rote baseless allegations with no foundation nor support will not make that so. Neil Sankey and his dba Sankey Investigations are proceeding rapidly through bankruptcy proceedings and it is expected that his petition will be granted shortly. Neil Sankey is effectively out of this case. That leaves Todd Sankey and The Sankey Firm, Inc. and this Motion for Summary Judgment concerns them alone. And they have no liability for anything to do with this case. Given that the Plaintiffs cannot possibly prevail on their Motion for Summary Judgment on the merits; their case is completely dependent on the Admissions inadvertently made and the subject of the pending Motion to Withdraw [false] Admissions. Once the untruths are removed so that this case
Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 5

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may be resolved on its merits, the independence of SANKEY vis--vis Neil Sankey will be proved and once the Plaintiffs provide responses to SANKEYs discovery in accordance with Fed.R.Civ.Proc., SANKEY will request leave to file its own Motion for Summary Judgment. II. PROCEDURAL POSTURE There are panoply of motions pending that affect this Motion for Summary Judgment which SANKEY contends must be resolved prior to consideration of the merits of this motion and a separate issue be resolved. Motions to Compel Further Responses to Discovery are pending against all of the Plaintiffs for their refusal to provide any proper responses to SANKEYs discovery requests nor produce a single document. Implicit in the opportunity to respond is the requirement that sufficient time be afforded for discovery purposes to develop facts essential to justify (a partys) opposition to the motion, Anderson v. Liberty Lobby, Inc. (Supreme Court, 1986) 477 U.S. 242 [The declaration by SANKEYs counsel concerning the premature nature of this Motion for Summary Judgment is filed herewith.] In addition to the motions, discovery addressed to the Taitz defendants, particularly the deposition of Defendant Orley Taitz, is required for SANKEY

Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 6

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to properly defend its case; that is and has been impossible.1 The vast preponderance of the allegations made by the Plaintiffs against Sankey concern the alleged actions taken by Neil Sankey and relationships between the Neil Sankey and his dba Sankey Investigations, SANKEY and the Taitz defendants, particularly Defendant Orley Taitz. Defendant Orley Taitz is the primary witness concerning her alleged business relationship with Defendants Neil Sankey and his dba entity Sankey Investigations. More importantly is that she is also the only independent witness who can provide admissible evidence concerning the total lack of any relevant relationship between Todd Sankey and The Sankey Firm vis--vis the other parties to this litigation. That information is seminal to an Opposition to the Motion for Summary Judgment. III. SUMMARY JUDGMENT A. In General Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. At the summary judgment stage, the trial judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. There is no such issue unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. In essence, the inquiry is

Todd Sankey and The Sankey Firm, Inc. have been unable to depose Orley

Taitz through no fault of its own. The stay resulting from the ANTI-SLAAP motion and the appeal from an adverse ruling thereon has been in effect far
Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 7

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whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc. (Supreme Court 1986) 477 U.S. 242, 242-243. B. The Plaintiffs Burden The Plaintiffs have the obligation to prove their dubious, indeed frivolous, case against SANKEY [which notably does not include Neil Sankey]. Summary judgment is appropriate when the moving party can demonstrate that the pleadings, depositions, affidavits, and other evidence available to the court establish that no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Because summary judgment is a drastic device, cutting off a partys right to present its case to a jury, the moving party bears a heavy burden of demonstrating the absence of any triable issue of material fact. Nationwide Life Ins. Co. v. Bankers Leasing Assn, Inc. (2nd Cir. 1999) 182 F3d 157, 160. and Where the moving party has the burden-the plaintiff on a claim for relief or the defendant on an affirmative defense-his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v. United States (6th Cir. 1986) 799 F2d 254, 259, citing Southern

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Calif. Gas Co. v. City of Santa Ana (9th Cir. 2003) 336 F3d 885, 888. The instant Motion for Summary Judgment requires a showing that there is no triable issue of fact. The only way that Plaintiffs can hope to prevail is by use of untrue Admissions which exist but are subject to the pending Motion to Withdraw. Once the Responses to Requests for Admissions served on the Plaintiffs long ago are allowed it can be proved and will be proved that the case against Sankey is frivolous. C. SANKEYS Burden (T)he non-movant need not match the movant witness, nor persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact. Waldridge v. American Hoechst Corp. (7th Cir. 1994) 24 F3d 918, 921; Keri v. Board of Trustees of Purdue Univ. (7th Cir. 2006) 458 F3d 620. The Declaration of Todd Sankey previously filed with the pending Motion to Withdraw Admissions, a copy of which is submitted herewith, provides absolute proof that there is a pending dispute of a material fact. Indeed, it establishes that the Plaintiffs have no case whatsoever against SANKEY. It is not necessary to provide documentary evidence, competent and specific testimony by a single declarant may create a triable issue as to a material fact although opposed by many other declarations to the contrary. United States v. One Parcel of Real Property (9th Cir. 1990) 904 F2d 487, 491492.
Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 9

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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 Declarations submitted and the exhibits thereto are objectionable as presented in SANKEYs Objections filed herewith. Objectionable statements are not sufficient to establish personal knowledge and competency. That must be shown by the facts stated: i.e. they must be matters known to the declarant personally, as distinguished from matters of opinion or hearsay. Virtually all of the paragraphs in Liberis Declaration contain statements that are no more than speculation, matters of opinion even if they are stated as facts. As noted above, Liberis Declaration [incorrectly] try to connect Neil Sankey to SANKEY while she has no knowledge and is not competent. And evidence must be relevant. As discussed above, nothing having to do with Neil Sankey and certainly nothing having to do with Orley Taitz is relevant. The Declaration of Liberi, as well as the others, must be stricken. Liberi is a convicted felon; her actions demonstrate her disregard for the norms and
Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 10

IV. NEIL SANKEYS ADMISSIONS ARE NOT BINDING ON SANKEY The Motion to Withdraw Admissions concerns only SANKEY; Neil Sankey is not included as a result of the bankruptcy stay. Still, his mechanically deemed admissions are irrelevant to this Motion for Summary Judgment: Admissions made by one defendant are not binding against codefendants. Castiglione v. United States Life Ins. Co. in City of N.Y. (D AZ 2003) 262 F.Supp.2d 1025, 1030. V. THERE IS NO EVIDENCE SUPPORTING THE PLAINTIFFS MOTION

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the laws of society and her credibility is naught. How credible can a declaration be considered when its author is a felon, a thief and a fraud who is trying to obtain well over a billion dollars ($1,000,000,000.00) by way of her testimony. At the least, her credibility must be determined by a jury. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Fed. R. Civ. P. 56(c)(2). The Declaration of Liberi is replete with conjecture and statements of fact of which she has no personnel knowledge. The most significant of these are her repeated statements that SANKEY and Neil Sankey work collusively so that the acts of the father may be imputed to the son and the entity of which he is president. Liberi has no actual knowledge of this she cannot have such knowledge for it is not true. However, she can assert knowledge based on the Admissions that are straightforward untruths. Liberi routinely makes statement concerning intent but issues of credibility, including issues of intent, should be left to the jury. Harris v. Itzhaki (9th Cir 1999) 183 Fed3 1043, 1051. She additionally makes inferences that must be drawn from experience with the mainsprings of human conduct and reference to the data of practical experience, the jury must make such determinations; summary judgment is improper on the basis of such inferences. Nunez v. Superior Oil (5th Cir. 1978) 1119, 1126.

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VI. THE PLAINTIFFS BOGUS CLAIMS This case revolves around Plaintiffs false claims which are predicated on an imaginery and unalienable right to privacy, precluding the acquisition of TRUE information available to the general public concerning them. There is no such right. In Sanchez-Scott v. Alza Pharmaceuticals (Cal.App. 2001) 86 Cal.App.4th 365 addressed the issue of privacy. Ms. Sanchez-Scott was a cancer patient being treated by Monty Polonsky, an oncologist. Robert Martinez was a drug representative for Alza Pharmaceuticals. At the request of Anza, Martinez requested that he be involved in the treatment for SanchezScott and Polonsky agreed and, in particular, agreed to have Martinez observe the breast examination of Sanchez-Scott. Sanchez-Scott was not informed of the identity of Martinez, to wit, that he was a drug company representative and Polonsky told her that Martiniz was supposed to be there. it was suggested that it was necessary for him to be there for her treatment. Sanchez-Scott was examined nude from the abdomen up in the presence of Martinez. She was at all times embarrassed by Martinezs presence. Only after she was dressed and leaving the office did she learn in response to inquiry from the receptionist that Martinez was a drug representative. The Court of Appeals held that the question of privacy turns on whether or not the person reasonably expects isolation holding that Sanchez-Scott had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. In contrast, Liberi was not having a medical examination, she was not nude, information about her was not obtained surreptitiously while she was in her home or in another private place and she was not engaged in a private conversation. Liberi purposefully put herself into the public sphere and all of the information about her came from the public sphere. The criminal records
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that prove that she is a convicted felon are public. They cannot be made retroactively secret. Her social security number is on the public records of her bankruptcy and on the poster identifying her as a criminal and having her picture on it. All manner of personal information is available through online providers of such data. Anyone can obtain it; a person need not be a licensed private investigator to obtain information in the public domain. There can be no privacy in that which is already in the public domain. In Helton v. United States (D.D.D., 2002) 191 F.Supp.2d 179 the Court also addressed the issue of intrusion and held that The threshold question, then, is whether plaintiffs have stated a claim satisfying the basic elements of the "intrusion upon seclusion" prong of the invasion of privacy tort. . . . One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. . . . The tort of intrusion upon seclusion has three elements: (1) an invasion or interference by physical intrusion, by use of a defendant's sense of sight or hearing, or by use of some other form of investigation or examination; (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns; (3) that would be highly offensive to an ordinary, reasonable person. Id. at 181. Again, there was no invasion, no physical intrusion into a place where the plaintiff has secluded herself, or into her private and secret concerns. Again,
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all of the information is available to the public and the information that seems to concern Liberi the most are available in court records. Yes, it is true that exposing ones criminal record is highly offensive to a criminal such as Liberi, but that is not the issue. The question is whether the intrusion is highly offensive. Obtaining court documents cannot be held to be highly offensive. Do the crime . . . . Similarly, in Forsher v. Bugliosi, (Cal. 1980) 26 Cal. 3d 792 concerns a lawsuit by plaintiff Forcher against former deputy district attorney Vincent Bugliosi on the basis that Bugliosi wrote and had published the book HelterSkelter about the Manson Family and his claim that the book implied that Forcher was involved in a murder. In the instant matter no Plaintiff is alleged to be a murderer. Notwithstanding that Bugliosi is certainly a public figure2, the dismissal of the case was affirmed. In Hill v. National Collegiate Athletic Assn. (Cal. 1994) 7 Cal.4th 1, the Court considered a case wherein college student athletes had to supply urine samples for drug testing pursuant to NCAA rules. The Supreme Court held

Liberi is a very public figure, something she voluntarily caused, but no one involved in the matters has implied that she has been involved in a murder. Indeed, Plaintiffs BERG, Lisa Liberi, BERGs assistant and Lisa Ostella and Philipp Berg are all VERY public figures. Indeed, BERG began frivolous lawsuits in 2001 when he demanded the disbarment of U.S. Supreme Court Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas due to their participation in the case Bush v. Gore. In 2004, BERG filed a Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit [237 pages] on behalf of a maintenance worker against President George W. Bush and 156 other defendants alleging that the Bush and certain government officials conspired to bring about the September 11, 2001 attacks on the World Trade Center. The federal district court dismissed the suit. Berg filed his first complaint against Barack Obama in August 2008 prior to the election. Like so many other of his cases, this case was dismissed. Liberi has worked with BERG and has assertedly been the plaintiff in many of BERGs cases. Lisa Ostella goes back to no later than 2008 in political matters and has worked with BERG on his President Obamas birth certificate and other such cases. Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 14

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that the case should be sent to the trial court for a hearing on the merits with full arguments.3 Where there is no protectable interest against truthful statements concerning a person who is a public figure, there cannot be a limitation on what is done with the information. What reputation can a convicted felon, a fraud and a thief like Liberi expect? California Civil Code Sections 1798.53 and 1798.85 provide no help to Liberi. Berg knows that well for on page 16 lines 1 2 he states that the Courts have held that Section 1798.53 pertains to any person . . . who intentionally discloses information, not otherwise public. Everything made public about Liberi is public! It must remembered throughout these discussions that SANKEY had no involvement in any of this. As to Ostella the allegations are so vague and ambiguous that they are meaningless, particularly as to SANKEY. [Interestingly, Liberi and Ostella take the $2,500 statutory damages set in Section 1798.53 and turn it by sleight of hand into a claim for over two billion dollars, $2,500,000,000.00. Plaintiffs claims for Intentional Infliction of Emotional and Mental Distress fail as well. A single aspect of this is that neither Neil Sankey nor SANKEY ever abused a relationship or position with Plaintiffs. Neither Neil Sankey nor SANKEY ever had a relationship or position with any of the Plaintiffs that could be abused. Indeed, SANKEY did not know of the existence of the Plaintiffs prior to the initiation of this litigation. In any event, Neil Sankey did, at most, what a private investigator does: obtain information and provide it as appropriate. It is reasonable to assume that the preponderance of the population does
3

Because the Plaintiffs have refused to respond with actual answers and documents, Todd Sankey and The Sank Firm, Inc. cannot, at this time, truly oppose a motion for summary judgment. It may be that the Plaintiffs will choose to obey a Order of this Court instructing them to reply in accordance with the Federal Rules of Civil Procedure.
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not want information about themselves to be discovered, particularly felony convictions, but that is what private investigators do and it is legal. Indeed, they can do far more than simply look at public records: sub rosa investigations, photography, videography, interviews, etc., are all within the scope of the work ordinarily conducted by a private investigator. Neil Sankey did not break into Liberis or Ostellas homes, he did not set up a wiretap system and he did not place bugs or other surveillance devices into their homes. And he did far, far less than he is entitled to do he just obtained publically available records. As to SANKEY, it had nothing to do with any of this and did nothing that in any way had anything to do with the neither Plaintiffs nor Orley Taitz. And as previously discussed, SANKEY did not even know the Plaintiffs even existed prior to being served with the complaint in this case. The cause of action for malicious prosecution is interesting. Berg states in his Motion that malicious prosecution is the institution and maintenance of judicial proceedings against another with malice and without probable cause. The Plaintiffs never filed an action against any of the Plaintiffs. Neil Sankey did assist Orley Taitz in bringing to the Courts attention that Liberi was violating her probation. Liberi was on probation and she violated it. There is probable cause. The Court released Liberi from her probation very shortly before it was to terminate for reasons that had nothing to do with the validity of the probable cause. Liberi has a long history with the criminal justice system and was on probation for a felony conviction. Does not any member of the public not have the right to request that the court continue a felons probation until it is set to terminate. In any event, Neil Sankeys involvement was through attorney Orley Taitz, the attorney who initiated and maintained the legal proceedings. Mr. Sankey is not an attorney and in everything that he did he relied on the
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requests and advice of attorney Taitz. Again, SANKEY had nothing whatsoever to do with any of this. There is malicious prosecution the Plaintiffs case against SANKEY is frivolous. VII. CONCLUSION Plaintiffs Motion is based upon inadvertent Admissions of Todd Sankey and The Sankey Firm, Inc. which are untrue. Even then, the Plaintiffs have failed to satisfy their burden and their Motion for Summary Judgment must be denied. Respectfully submitted on this 6th day of May 2012 by

Marc Steven Colen

_____________________________ Marc Steven Colen The Colen Law Firm Attorney for Defendants Todd Sankey and The Sankey Firm, Inc.

Liberi v. Taitz Case No.: 8:11-cv-00485 AG Opposition to Motion for Summary Judgment pg. 17