LIBERI v TAITZ - 93 2009-08-03 TAITZ Motion for Dismissal of TRO
Liberi v Taitz - Plaintiffs Opposition to Intelius MTD Doc 390
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Liberi, et al, Plaintiffs Opp. To Intelius MTD 09.23.2011 1
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Philip J. Berg, EsquirePennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134E-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.
:::
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::::
CIVIL ACTION NUMBER:
8:11-cv-00485-AG (AJW)
PLAINTIFFS OPPOSITION TO
DEFENDANT INTELIUS, INC.S
MOTION TO DISMISS, DOCKET
NO. 380
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 Defendant, Intelius, Inc.s [Intelius] Motion to
Dismiss [MTD]. In support hereof, Plaintiffs aver the following:
Intelius has filed manufactured (newly created) documents with the
Declaration of Benjamin Nelson;
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Intelius has destroyed and spoiled evidence pertaining to this case by
deleting accounts; deleting searches on the Plaintiffs; deleting actual
reports sold on the Plaintiffs; and creating reports which they falsely
claim are the products sold;
Intelius is a Credit Reporting Agency and bound by the Fair Credit
Reporting Act [FCRA]; California's Consumer Credit Reporting
Agency Act [CCRAA]; and Investigative Consumer Reporting
Agencies Act [ICRAA] as outlined on their website in several
places and in their submission to the United States Securities and
Exchange Division;
Intelius is not immune by the Communications Decency Act, 47 U.S
230, et. Seq. [CDA] and the CDA does not pertain to the within
action;
Intelius has deleted the account of Plaintiff Lisa Ostella and deleted
the reports that were run on her;
Intelius has failed to address the two (2) letters sent to them by
Plaintiff Lisa Liberi regarding the incorrect and wrong information
maintained on Plaintiff Lisa Liberi;
Intelius admits in their MTD and Declaration of Benjamin Nelson that
more reports were sold to unauthorized individuals than Plaintiffs
were aware of;
Plaintiffs have not incorporated into their Complaint Intelius Terms
of Service and/or Frequently Asked Questions; and
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Intelius fails to uphold their own Terms of Service filed with
Benjamin Nelsons Declaration.
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
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.
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4. The private data obtained by the Sankey Defendants and Taitz from
Intelius 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 Liber
does not own real estate, yet the Reed Defendants and Defendant Intelius supplied
Plaintiff Liberis home address and Liberi and Ostellas unlisted phone numbers.
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 Intelius databases, where they also
obtained Plaintiffs Liberi and Ostellas private data. Mr. Taitz in his Motion to
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Dismiss in his individual capacity stated he could not be held liable as an
damages caused to the Plaintiffs would be the responsibility of Defendant Daylight
Chemical Systems, Inc.
8. Intelius claims they cannot be held liable since their system wa
hacked. Intelius had a duty to ensure their data maintained on their databases
was at all-time maintained secure. Intelius also had a duty to uphold their own
promises to the public found on their website that they have security specialists
ensuring their IT systems were and are maintained securely.
9. 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
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.
10. In Intelius MTD they claiming Plaintiffs have failed to state a claim
in which relief can be granted. Intelius claims they only supply public records, that
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they are notbound by the Fair Credit Reporting Laws [F.C.R.A.]; the California
Credit Reporting Agencies Act [CCRAA]; or the California Investigative
Consumer Reporting Agencies Act [ICRAA], because they are not a Consumer
Reporting Agency, which clearly is not the case. In support thereof, they filed a
Declaration from Intelius, Inc.s custodian of Records, Benjamin Nelson.
11. Intelius attempts to use Ruben Nieto and the Spokeo search run on
Mr. Nietos email address as a comparison to what they sold the Defendants
herein. There is no comparison. Plaintiffs did not seek or obtain Mr. Nietos
Social Security number, date of birth, home address or other private data. The
Spokeo report was far different than the information sold by Intelius on the
Plaintiffs.
12. Benjamin Nelson [Nelson] attached as Exhibit 3 a TalentWise
report on Lisa Liberi. Although, Intelius states all through their MTD that they
only provided information on the name Lisa Liberi and not that of Plaintiff Liberi
which makes absolutely no sense, Nelsons Exhibit 3 clearly shows it is a report
specifically on Plaintiff Lisa Liberi as it contains Liberis full Social Security
number, address and date of birth.
13. In addition, the accurate background report Liberi pulled on herself
Intelius Background Report No. 30897400 only contains information pertaining to
Plaintiff Lisa Liberi and no other name of Lisa Liberi.
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14. Plaintiffs Opposition is based upon their Opposition, the attached
Memorandum of Points and Authorities in Support hereof; Declarations of Philip J
Berg, Esquire; Lisa Liberi; and Lisa Ostella filed concurrently herewith; Plaintiffs
Opposition and Objections to Intelius Request for Judicial Notice; 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 Defendant Intelius, Inc.s Motion to Dismiss. In the alternative
Plaintiffs Request Leave to Amend their Complaint.
Respectfully submitted,
Dated: September 23, 2011 /s/ Philip J. Berg
Philip J. Berg, EsquirePennsylvania I.D. 9867LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531Telephone: (610) 825-3134E-mail:[email protected]
Attorney in Pro Se and Counsel fo
Plaintiffs
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TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS....i-ii
TABLE OF AUTHORITIES.iii-viii
I. STANDARD OF REVIEW ......1-2
II. DECLARATION OF BENJAMIN NELSON
CONTAINS FALSE STATATEMENTS and
MANUFACTURED DOCUMENTS
III. INTELIUS FURNISHED CONSUMER
IV. THE COMMUNICATIONS DECENCY ACT,
47 U.S.C. 230 DOES NOT APPLY to the
WITHIN ACTION....6-8
V. INTELIUS IS A CREDIT REPORTING
AGENCY BY THEIR OWN ADMISSIONS;PLAINTIFFS 12
thTHROUGH 16
thCAUSES OF
ACTION WILL PREVAIL:....8-11
VI. INTELIUS HAS DESTROYED and
SPOILED EVIDENCE..11-12
VII. INTELIUS HAD A DUTY TO REINVESTIGATE
THE WRONG INFORMATION THEY HAD
ON PLAINTIFFS and CORRECT PLAINTIFFSFILES ACCORDINGLY...12-14
VIII. PLAINTIFFS NON-FCRA CLAIMS are NOT
PREEMPTED AND INTELIUS MISQUOTED and
MISINTERPRETED THE STATUTE THEY are
CITING..14-15
MEMORANDUM OF POINTS AND AUTHORITIES..1-25
REPORTS ON LIBERI and OSTELLA...........................................5-6
:..................................2-5
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TABLE OF CONTENTS - Continued
Page(s)
IX. PLAINTIFFS 1st THROUGH 3rd CAUSE
A. Plaintiffs 1st Cause of Action
Willful and Intentional Intrusionupon Plaintiffs Solitude, Seclusion and
B. Plaintiffs Second Cause of Action, PublicDisclosure of Private Facts is Properly Pled
against Intelius..19
C. Plaintiffs 3rd Cause of Action False Light
Invasion of Privacy...19
X. PLAINTIFFS 5th, 6th and 17th CAUSE OF
ACTION WILL PREVAIL...19-20
XI. PLAINTIFFS 8th CAUSE OF ACTION...20-21
XII. PLAINTIFFS 9th and 19th CAUSE OF ACTION..21-22
XIII. PLAINTIFFS 18th CAUSE OF ACTION,
UNFAIR BUSINESS PRACTICES..23-24
XIV. PLAINTIFFS 20th CAUSE OF ACTION,RES IPSA LOQUITOR.24-25
XV. CONCLUSION...25
Private Affairs - Invasion of Privacy...16-18
OF ACTIONS.....15-19
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TABLE OF AUTHORITIES
CASES Page(s)
ABC Internat. Traders, Inc. v Matsushita Electric Corp., (1997)
Ashcroft v. Iqbal, (2009) 129 S.Ct. 1937, 173 L.Ed.2d 868 (... 1, 2
Bank of the West v. Superior Court, (1992)
Barnes v. Yahoo!, Inc.,570 F.3d 1096 (9th Cir.2009)...7
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,167 L.Ed.2d 929 (2007).2
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
Carafano v. Metrosplash.Com. Inc., 339 F.3d 1119 (9th Cir. 2003)........7
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]..23
Christensen v. Superior Court, (1991)
54 Cal. 3d 868 [2 Cal. Rptr. 2d 79].22
Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120
Fair Housing Council of San Fernando Valley v. Roommates, Com, LLC
Garcia v. UnionBancal Corp.,
2 Cal.4th 1254, 1266 [10 Cal. Rptr. 2d 538, 833 P.2d 545]....23
14 Cal.4th 1247, 1270 [61 Cal. Rptr. 2d 112, 931 P.2d 290].......23
Dennis v. BEH-I, LLC, 520 F.3d 1066 (9th Cir.2008)...14
[118 Cal. Rptr. 2d 240] (3d Dist. 2002)..22
521 F.3d 1157, 1167-68 (9th Cir.2008)...................................................................7
2006 WL 2619330 (N.D. Cal. Sept. 12, 2006)...12
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TABLE OF AUTHORITIES - Continued
CASES Page(s)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...21
Goddard v. Google,No. C 08-2738 JF (PVT),2008 WL 5245490 (N.D. Cal. Dec. 17, 2008)..7
Gorman v. Wolpoff & Abramson, LLP,
584 F.3d 1147, 1157 (9th Cir. 2009).14, 15
Guillory v. Godfrey, 134 Cal. App. 2d 628[286 P.2d 414] (2d Dist. 1955)21
Hall v. Time Inc., (2008) 158 Cal.App.4th 847, 852 [70 Cal. Rptr.3d 466]23
Hassoldt v. Patrick Media Group, Inc.,
84 Cal. App. 4th 153 [100 Cal. Rptr. 2d 662] (2d Dist.2000).22
Hill v. National Collegiate Athletic Assn. (1994)7 Cal. 4
th1, [26 Cal. Rptr. 2d 834]..15, 17, 18
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].....17, 18
Jennifer M. v. Redwood Women's Health Ctr.,(2001) 88 Cal.App. 4th 81 ..20
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]...23
Kinsey v. Macur, (1980) 107 Cal. App. 3d 264 [165 Cal. Rptr. 608].18
Leibert v. Transworld Systems, Inc., 32 Cal. App. 4th
1693
[39 Cal. Rptr. 2d 65] (1st
Dist. 1995)...15
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TABLE OF AUTHORITIES - Continued
CASES Page(s)
Levy-Zentner Co. v. Southern Pac. Transportation Co., (1977)
74 Cal.App.3d 762...14
Lucas v. Dep't of Corr., 66 F.3d 245 (9th Cir.1995).2
Lugtu v. California Highway Patrol(2001)26 Cal.4th 703, 716 [110 Cal. Rptr. 2d 528, 28 P.3d 249]..16
Mendiondo v. Centinela Hosp. Med. Ctr.,
521 F.3d 1097 (9th
Cir. 2008)1
Neary v. Regents of University of California,
185 Cal. App. 3d 1136 [230 Cal. Rptr. 281] (1st Distr. 1986)....21
Ochoa v.Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr. 661]22
Operating Engineers Local 3 v. Johnson,
Pioneer Electronics (USA), Inc. v. Superior Court, (2007)
40 Cal.4th 360, 370 [53 Cal. Rptr. 3d 513, 150 P.3d 198]..17
Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th 96522
Reno v. American Civil Liberties Union (1997) 521 U.S. 844,117 S.Ct. 2329, 138 L.Ed.2d 874..6, 7
Ross v. Creel Printing & Publishing Co.,
100 Cal. App. 4th 736 [122 Cal. Rptr. 2d 787] (1st Dist. 2002)..22
Schulz v. Neovi Data Corp., (2005) 129 Cal. App. 4th 124
110 Cal. App. 4th 180 [1 Ca. Rptr. 3d 552] (1st Dist. 2003)...19
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TABLE OF AUTHORITIES - Continued
CASES Page(s)
Schwartz v. Thiele, 242 Cal. App. 2d 799
[51 Cal. Rptr. 767] (2d Dist. 1966)..15, 18
Shahinian v. McCormick, (1963) 59 Cal.2d 554.24
Smith v. Los Angeles Bookhinders Union No. 63,133 Cal. App. 2d 486 [286 P.2d 194] (2d Dist. 1955).21
Smith v. National Broadcasting Co.,138 Cal. App. 2d 807807 (2nd Dist. 1956)...15, 16
Spackman v. Good, (1966) 245 Cal. App. 2d 518 [54 Cal. Rptr. 78]..21
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]16
Taus v. Loftus, (2007) 40 Cal. 4th 683 [54 Cal. Rptr. 3d 775]18
Timperley v. Chase Collection Service,
272 Cal. App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969)..18
Witriol v. LexisNexis Group,2006 WL 1128036 (N.D.Cal. Apr 27, 2006)...20
Ybarra v. Spangard, (1944) 25 Cal.2d 486, 489 [154 P.2d 687]24
FEDERAL STATUTES Page(s)
15 U.S.C. 1681g14
15 U.S.C. 1681(h).14
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TABLE OF AUTHORITIES - Continued
FEDERAL STATUTES Page(s)
15 U.S.C. 1681i.14
15 U.S.C. 1681i(a)(1)(A)...13
15 U.S.C. 1681 i(a)(4)...13
15 U.S.C. 1681 i(a)(6)-(7).13
15 U.S.C. 1681m...14
15 U.S.C. 1681n..14, 15
15 U.S.C. 1681o..14, 15
47 U.S.C. 230..6
47 U.S.C. 230(c)(1).7
47 U.S.C. 230(f)(2)..7
STATE STATUTES Page(s)
Business and Professions Code17200, et. seq.... 23, 24
California Civil Code 1798, et seq...11
FEDERAL RULES OF CIVIL PROCEDURE Page(s)
Federal Rules of Civil Procedure 12(b)(6)1
Federal Rules of Evidence, 646 Subd. (b)...24
15 U.S.C. 1681(h)(e)....14, 15
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TABLE OF AUTHORITIES - Continued
MISC. Page(s)
6A Cal. Jur. 3d, Assaults and Other Willful Torts 153 (2003)..21
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Liberi, et al, Plaintiffs Brief in Support of their Opp to Intelius MTD 09.23.2011 1
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Philip J. Berg, Esquire
Pennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134E-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 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 factual 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 draw the reasonable inference that th
Defendant is liable for the misconduct alleged.Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173
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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. DECLARATION OF BENJAMIN NELSON CONTAINS FALSE
STATATEMENTS and MANUFACTURED DOCUMENTS:
2. Benjamin Nelson [Nelson] states he is the Custodian of Records for
Defendant Intelius, Inc. [Intelius] and has been for approximately six [6] years. Nelson
includes eight [8] Exhibits which purport to be genuine.
3. Nelson claims they maintain every search that has ever been run on any
individuals name. Nelson states according to Intelius records, the only Defendant in this
case to have ever conducted a search on Lisa Liberi was Orly Taitz on April 12, 2009. See
Nelsons Declaration, pg. 2, 5. This completely contradicts Taitz, the Sankey Defendant
and a witness of Plaintiffs, Charles Edward Lincoln, III, testimony. And, Nelson contradicts
himself in his own Declaration. Nelson attaches as Exhibit 1 to his declaration the generic
search he claims Orly Taitz conducted on Plaintiff Liberi. The names associated with
Nelsons Exhibit 1 do not come up when searching Intelius, Inc. See the Declaration of
Lisa Liberi at pg. 4, 9 and EXHIBIT E attached to Liberis Declaration.
4. Nelson states Liberi conducted a search on herself on April 10, 2010, almost a
year after Taitz supposedly conducted her search. Nelson attaches as Exhibit 2 the
supposed report obtained by Liberi. SeeNelson Decl. at pg. 3, 6.
5. Nelsons Exhibit 2 is NOT the report purchased and/or obtained by Liberi
In fact, it is far different. See the actual report purchased by Liberi, Intelius Report No
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30897400 with the receipt from Intelius attached to Lisa Liberis Declaration as EXHIBIT
A. See also Liberis Declaration at pgs 1-2, 1-2. The Reports attached by Nelson as
Exhibits 1 and 2 contains Plaintiff Liberis physical home address; and Liberis previous
Intelius reports did not contain her physical address.
6. Nelson claims Intelius is not a Consumer Credit Agency and they only sell
generalized public information on a name and not a specific person. Nelson attached as
Exhibit 3 to his Declaration a TalentWise Report on Liberi that Liberi purchased
Nelsons Exhibit 3 contains Liberis full Social Security number and date of birth, which
has been blackened out by Nelson. SeeNelsons Exhibit 3.
7. Nelson next inputs some Terms and Conditions which he claims you mus
accept and agree to; and that they claim Intelius reports are not bound by the Fair Credi
Reporting Act [F.C.R.A.]. These are not the Terms and Conditions Liberi was required to
accept and acknowledge. See the Declaration of Lisa Liberi at pg 3, 6. In fact, the terms and
conditions of the reports obtained by Liberi state they are governed by the F.C.R.A. See
EXHIBIT C attached to Lisa Liberis Declaration.
8. Nelson and Intelius claim Plaintiffs incorporated Intelius Terms and
Conditions and Frequently Asked Questions that are attached as Exhibits 4 and 8 into
their First Amended Complaint. This is not true as the Terms and Conditions are far
different than what Plaintiffs had to agree to and there is no reference as to the Frequently
Asked Questions:. See the declaration of Lisa Liberi at pg. 3, 6.
9. Nelson states that Neil Sankey had an Intelius account, that Sankey did not run
any searches on Liberi and Sankey did not open his account until November 2009. This is
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impossible. Taitz and Sankey himself admitted to using Intelius. Further, Sankey was
conducting interviews at the end of 2008 and beginning of 2009 stating he used LexisNexis,
ChoicePoint, Jobs.com and Intelius, Inc., all of which is on file with this Court with the
original lawsuit and original requests for protective orders.
10. To further show the dishonesty of Mr. Nelson, he next states that Lisa Ostella
never had an account with Intelius. This is far from the truth. See the Declaration of Lisa
Ostella and a copy of Lisa Ostellas account information with Intelius showing she opened
her Intelius account in December 2008, see Lisa Ostellas Declaration at pg. 3, 8-9 and
EXHIBIT 1 attached to Lisa Ostellas Declaration. Intelius recently cancelled Lisa
Ostellas account.
11. Mr. Nelson talks about a letter sent by Mr. Berg on behalf of Lisa Liberi. Mr
Nelson makes no mention of Lisa Ostella, who this same letter also pertained to. To show
the disregard Intelius has on Plaintiffs private data, Intelius failed to redact Plaintiff Liberis
Social Security number, date of birth, address, spouses name, spouses Social Security
number, spouses date of birth and other private data from their Exhibit 5 of Nelsons
Declaration. SeeNelsons Exhibit 5.
12. Nelson states no one ever ran a report on Lisa Ostella. Untrue. See Ostellas
Declaration at pg. 3-4, 10, 12. Ostella ran a report on herself. See EXHIBIT 2 attached
to Lisa Ostellas Declaration.
13. Nelson states Intelius sent a letter to Ostella in response to a letter they received
from her. Nelson states they explained in order for her to obtain who performed searches on
her, she would need a Subpoena or Court Order. Ostella never received this supposed letter
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from Intelius, see Lisa Ostellas Declaration at pg. 6, 20. Nelson attached Ostellas letter to
Intelius as Exhibit 6 without redacting any personal information. When writing to Intelius
you are required to supply certain confidential information, which Nelson has now published.
14. The Declaration of Benjamin Nelson should notbe used or considered by the
Court, nor should his Exhibits. The Exhibits are not a true depiction of the reports previously
purchased by Liberi. The reports purchased by Liberi were not only public record
information; and they pertained solely to Liberi herself. Nelson was dishonest in his
testimony to this Court. Ostella does and did have an account with Intelius; a report had been
purchased on Ostella and the reports purchased on the Plaintiffs contained very confidential
information, including dates of birth, home addresses, Social Security numbers and other
private data as shown on the actual reports.
III. INTELIUS FURNISHED CONSUMER REPORTS ON LIBERI and
OSTELLA
15. Intelius claims they did not furnish a consumer report on any of the
Plaintiffs. Intelius statement is contradicted by their own Exhibits provided by Nelson. In
particular, Nelsons Exhibit 3. Liberi obtained a TalentWise report, which is a Consumer
report governed by the F.C.R.A. Liberi and Ostella both purchased reports which were
specific to Plaintiff Lisa Liberi and Lisa Ostella, and only contained information specific to
them. See Liberis Decl at pgs1-2, 1, and EXHIBIT A attached to Lisa Liberis
Declaration. See also Lisa Ostellas Declaration at pg. 4 14 and EXHIBIT 2 attached to
Lisa Ostellas Declaration.
16. Moreover, according to Intelius October 2009 United States Securities and
Exchange Commission [SEC] filing, Intelius was under investigation by the Federal Trade
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Commission [FTC] to ensure they were complying with the F.C.R.A. and other rules
governing the sale of private data.
17. This is also confirmed in Intelius Security statement that states they are in
18. Intelius claims they are immune by the Communications Decency Act, 47
service and Plaintiffs in their FAC claim Intelius is a publisher or speaker of information
Intelius states they only publish information maintained by third parties. [Intelius MTD, Pgs
10-12]. This is very creative of Intelius to say the least, but, their arguments fail.
19. Intelius is a commercial data broker by their own admissions on their website
and in media articles, who purchase private information on individuals from LexisNexis
ChoicePoint, Accurint and other data brokers and resells the information to the general
public. Intelius isnot an interactive website as defined by the CDA. This lawsuit against
Intelius is about Intelius selling Plaintiffs private data to parties who did not have a
permissible or legal purpose to obtain it, which allowed Taitz and the other Defendants to
publish Plaintiffs private information and carry out their threats and injure the Plaintiffs.
20. Intelius is not a newsgroup or bulletin board; it is not a service publisher or an
interactive computer service. Reno v. American Civil Liberties Union (1997) 521 U.S. 844
851, 117 S.Ct. 2329, 138 L.Ed.2d 874. Nor does the CDA apply as outlined by Intelius.
NOT APPLY to the WITHIN ACTION:
U.S. 230, et. Seq. [CDA]. Intelius claims to be a provider of an interactive computer
IV. THE COMMUNICATIONS DECENCY ACT, 47 U.S.C. 230 DOES
7; Lisa Liberi at pg. 3, 5; and Lisa Ostella at pgs. 4-5, 15.
fact a Credit Reporting Agency. See the Declarations of Philip J. Berg, Esquire at pg. 3 ,
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21. Section 230(c)(1) refers directly to the user of an interactive computer
service. Section 230(f)(2) defines interactive computer service as any information
service, system, or access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service or system that
provides access to the Internet.... [emphasis added] Carafano v. Metrosplash.Com. Inc.
339 F.3d 1119 (9th Cir. 2003). None of which apply to Intelius, Reno v. American Civi
Liberties Union (1997) 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874.).
22. The term "information content provider" for purposes of the Act, means any
person or entity that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer service. 47
U.S.C.A. 230(f)(3), Fair Housing Council of San Fernando Valley v. Roommates, Com
LLC (Roommates), 521 F.3d 1157, 1167-68 (9th Cir.2008).
23. The provider of an interactive computer service allowing users within a
particular "community" to post profiles and communicate with each other was a
"information content provider," partly responsible for the creation or development of a false
profile of an actress created by a third party, and thus was not entitled to immunity under the
Communications Decency Act, Carafano v. Metrosplash.Com. Inc., 339 F.3d 1119 (9th Cir
2003). A website/blog owner/operator becomes liable as an information content provider
when they contribute to its alleged unlawfulness, 521 F.3d at 1167-68. See also Barnes v
Yahoo!, Inc., 570 F.3d 1096, 1106 (9th
Cir.2009); Goddard v. Google, No. C 08-2738 JF
(PVT), 2008 WL 5245490 (N.D.Cal. Dec. 17, 2008).
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24. Intelius does not have immunity under the CDA, 47 U.S.C. Section 230, et. seq
For the reasons stated herein, this Court must Deny Intelius Motion.
V. INTELIUS IS A CREDIT REPORTING AGENCY BY THEIR OWN
ADMISSIONS; PLAINTIFFS 12
th
THROUGH 16
th
CAUSES OF ACTIONWILL PREVAIL:
25. Intelius claims in their MTD on page 12 that Plaintiffs Twelfth through
Sixteenth Causes of Action fail because they are not a consumer reporting agency.
26. Plaintiffs incorporate by reference their FAC at pgs 61-74 144-174; and pgs
127-142, 335-380, as if fully set forth here at length.
27. Intelius states on their website at http://www.intelius.com/corp/security, See
Intelius recognizes the sensitivity surrounding many of its applications and the data
they rely on. As such, Intelius' information security policy addresses security at all
levels: personnel, technology and operations.
Intelius follows the highest industry standards for protecting personallyidentifiable information such as Personal Names, Social Security Numbers and
Credit Card Numbers
Intelius is a certified credit reporting agency.
Compliance:
We devote tremendous time and resources to assure that we have the best data
available, configured to your needs. We've contracted with multiple redundant data
sources so you can be confident that Intelius' information is as accurate as possible.
Our technologies all meet the standards of compliance required in the following
federal acts:
the Declaration of Philip J. Berg, Esquire, the following:
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The Fair Credit Reporting Act (FCRA) sets forth guidelines regarding criminal
checks for tenant and pre-employment screening. Intelius is a certified credit
reporting agency and can help insure you are compliant with current regulations and
updates as they happen...
28. Intelius states Taitz obtained the same report as Liberi did. That the reports
Liberi and Taitz obtained were a simple background search on only the name Lisa Liberi
and not that of Plaintiff Liberi. Liberi purchased background reports through Intelius
Enterprise division, as did Taitz. Intelius states on their website at
http://www.intelius.com/corp/enterprise.
We have the following comprehensive business solutions:
FCRA-compliant screening services:
Pre-employment screening
Tenant Screening
Intelius recognizes that you value your time, you're concerned about the bottom line,
and you have unique information challenges. That's why our solutions are cost-
effective and simple to establish, and Intelius' results are accurate, immediate and
easy to understand.
29. And, Intelius states in their October 19, 2009 SEC Report, Report S-1 located at
http://ipo.nasdaq.com/edgar_conv_html%5C2009%5C10%5C19%5C0000950123-09-
051082.html at the end of page 24 and beginning of page 25:
Because we use personal information in providing our information services, we are
subject to government regulation and vulnerable to adverse publicity. We provide
See the Declarations of Philip J. Berg, Esquire; Lisa
Ostella at pg. 5, 17; and Lisa Liberi at pg. 3, . Intelius states the following:
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many types of data and services that already are subject to regulation under the
FCRA, Gramm-Leach-Bliley Act, Drivers Privacy Protection Act and, to a lesser
extent, various other federal, state and local laws and regulations. Violation of these
laws or regulations may result in substantial fines, judgments and other penalties.
These laws and regulations are designed to protect the privacy of the public and to
prevent the misuse of personal information in the marketplaceMany states have
enacted laws to protect personal information.
30. Intelius claims Lisa Ostella does not have standing because they never sold any
type of report on her, including a Consumer Report. This is not true. See the Decl. of Lisa
Ostella at pg. 4, 12, 14 and EXHIBIT 2 attached to Lisa Ostellas Declaration. Intelius
falsely claims the only search results provided on Liberi was a generic background check,
which again is not true and contradicted by the reports attached in Nelsons Declaration,
including the TalentWise report.
31. Taitz has admitted receiving reports on Plaintiffs Ostella and Liberi from the
Sankey Defendants, Reed Defendants and Intelius. See DOFFs MTD filed July 11, 2011
DN 283; Taitzs MTD filed July 11, 2011, DN 280; and L.O.O.T.s MTD filed September 14,
2011, DN 376 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.
32. Intelius states that searches performed on Plaintiffs were only general searches
however, as can be seen by Nelsons Exhibit 3, which is a report on Liberi, it contains only
Liberis name, address full Social Security number, date of birth, only information pertaining
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to Lisa Liberi, Plaintiff herein and no other individual. Also, same goes for the actual
background check Liberi performed on her, attached to Lisa Liberis Declaration with the
receipt as EXHIBIT A, it only contains information pertaining to Plaintiff Lisa Liberi and
not any other individual. Same goes for the report pulled on Lisa Ostella. See Lisa Ostellas
Declaration EXHIBITS 2, it contains Ostellas name, address, and Social Security
number. These are not generic reports as falsely claimed by Intelius.
33. As can be seen by Intelius own statements on their website and with the
United States Security and Exchange Commission, and Plaintiffs Exhibits attached hereto
Intelius is in fact a Credit Reporting Agency and they are bound by the FCRA; CCRAA; the
ICRAA, and Cal. Civ. Code 1798, et. seq. For these reasons, Intelius MTD must be Denied.
VI. INTELIUS HAS DESTROYED and SPOILED EVIDENCE:
34. Intelius has deleted the account of Lisa Ostella. See Ostella Decl. at pg3, 8-9,
and EXHIBIT 1 attached to Lisa Ostellas Declaration. Ostellas account information
shows opened in December 2008 and Ostella learned it had been deleted when she attempted
to access her account in September 2011. Intelius also deleted all of Ostellas search details.
35. Intelius has deleted all records pertaining to Plaintiff Lisa Liberi and submitted
manufactured reports claiming those to be the reports received by Taitz and Liberi. This is
not true as proven by Liberis Decl at pgs. 1-2, 1-2, and EXHIBITS A and B
attached to Lisa Liberis Declaration, which is Liberis report she purchased, Intelius report
number 30897400, that is completely different than the manufactured report provided by
Nelson and Intelius attached as Exhibit 2 to Nelsons Declaration. Intelius cannot furnish
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the proper reports purchased by Liberi, Ostella, and/or obtained by Defendants Taitz, Yosef
Taitz and the Sankey Defendants, as they have destroyed and deleted them.
36. To further prove the deletions by Intelius, if you run the name Lisa Liberi in the
State of California or New Mexico, nothing returns, and if you run Lisa Liberi nationwide
all you receive is two [2] Lisa Liberis one in PA and the other in FL. See the Declaration of
Lisa Liberi at pg. 4, 9 and EXHIBIT E attached to Lisa Liberis Declaration. Not even
the report manufactured by Mr. Nelson and/or Intelius filed as Exhibits 1 and 2 come up.
37. Intelius then claims on page 17 of their MTD that Plaintiffs cannotprove their
cause of actions 12 through 16 because they cannot produce the credit reporting agency
reports obtained on them. Intelius cites Garcia v. UnionBancal Corp., 2006 WL 2619330 at
*2 (N.D. Cal. Sept. 12, 2006), which is inapposite. Garcia is about a Bank employees brief
case which contained some customers private data; the brief case was then stolen. The bank
was not a credit reporting agency, nor did it pertain to any type of consumer report. Plaintiffs
have provided the reports they have received as well as Defendant Taitz and the Sankey
Defendants own statements, testimony and filings that they obtained Plaintiffs private data in
reports they received from LexisNexis, ChoicePoint and Intelius.
38. Liberi and Ostella have provided their reports as Exhibits attached hereto
Intelius argument fails and their Motion must be Denied.
VII. INTELIUS HAD A DUTY TO REINVESTIGATE THE WRONGINFORMATION THEY HAD ON PLAINTIFFS and CORRECT
PLAINTIFFS FILES ACCORDINGLY:
39. Intelius states they did not have a duty to reinvestigate the wrong information
they maintained on Plaintiffs Ostella and Liberi. Intelius claims that Ostella did not even
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attempt to bring forth the wrong information Intelius maintained on her and that Bergs letter
stating there were inaccuracies in Liberis file was inadequate. [Intelius MTD pg. 18].
40. Mr. Bergs letter addressed Plaintiffs, Liberi and Ostella. Ostella did bring
forth that Intelius maintained an incorrect birth date for her and other incorrect information
See Philip J. Berg, Esquires letter to Intelius attached to Nelson Declaration as Exhibit 5.
41. Intelius fails to mention the letter sent to them on November 1, 2010 directly
from Plaintiff Lisa Liberi. Liberis letter was sent priority mail with delivery confirmation
0309-3220-0001-9214-5504. See the Declaration of Lisa Liberi, pg. 3, 7 and EXHIBIT D
attached to Lisa Liberis Declaration. Every piece of incorrect information contained on
Liberi in her Intelius reports is outlined in Liberis letter. Although delivered, Intelius never
responded to Liberi; failed to correct the wrong data; or sent her a corrected report.
42. As our law holds, in order to trigger a credit agency's duty under the FCRA to
investigate a claim of inaccurate information, a consumer must notify the agency of the
purported reporting error, as Plaintiffs Ostella and Liberi have done. See 15 U.S.C. 1681
i(a)(1)(A). Once a Credit Agency is notified of inaccurate information contained in a
consumers file that is being disputed, the agency must reinvestigate the inaccuracies and
record the status of the disputed information within 30 days, 15 U.S.C. 1681i(a)(1)(A). The
FCRA contains provisions similar to those of the CCRAA with respect to consideration of all
relevant materials submitted by the consumer, id. 1681 i(a)(4), and provision of a
description of the procedure used to determine the accuracy and completeness of the disputed
information, id. 1681 i(a)(6)-(7).
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43. Plaintiffs have pled sufficient facts to support their 12th through 16th Cause of
Actions. The FCRA's reinvestigation provision, 15 U.S.C. 1681i, does not on its face
require that an actual inaccuracy exist for a Plaintiffs to state a claim, but Ostella and Liberi
have outlined the inaccuracies in their Complaint and in letters to Intelius, they have met their
burden and Intelius MTD must be Denied.Dennis v. BEH-I, LLC, 520 F.3d 1066 (9th Cir
2008); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1157 (9th Cir. 2009).
VIII. PLAINTIFFS NON-FCRA CLAIMS are NOT PREEMPTED AND
INTELIUS MISQUOTED and MISINTERPRETED THE STATUTE
THEY are CITING:
44. Intelius on page 19 claims Plaintiffs non-FCRA claims are preempted pursuant
to Section 1681h(e) of the F.C.R.A. 15 U.S.C. 1681(h) or 1681(h)(e) do notpertain to the
within action.
45. Plaintiffs incorporate by reference their FAC at pgs. 61-74, 144-174 and pgs
127-137, 335-364.
46. 15 U.S.C. 1681h(e) states in pertinent part:
Except as provided in sections 1681n and 1681o of this title, no consumer may
bring any action or proceeding in the nature of defamation, invasion of privacy, or
negligence with respect to the reporting of information against any consumer
reporting agency, any user of information, or any person who furnishes information
to a consumer reporting agency, based on information disclosed pursuant to
section 1681g, 1681h, or 1681m [emphasis added]
47. 15 U.S.C. 1681g pertains to disclosure of the file to the consumer; 15 U.S.C
1681h pertains to the conditions and disclosure to consumers whom the report relates; and
15 U.S.C. 1681m pertains to the requirements of the users of the consumer reports. None of
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which Plaintiffs are suing Intelius for. Plaintiffs are suing Intelius pursuant to 15 U.S.C
Sections 1681n and 1681o. 15 U.S.C. 1681 h(e) does not apply to the within action or
preempt Plaintiffs non-FCRA claims. See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d
1147, 1165-67 (9th Cir. 2009) which is right on point.
IX. PLAINTIFFS 1st
THROUGH 3rd
CAUSE OF ACTIONS
48. Intelius claims that Plaintiffs 1st through 3rd Cause of Actions fail because
Intelius did not invade Plaintiffs privacy. Intelius claims they never disclosed any
information about Berg or Ostella and the only information they disclosed on Liberi was
information as to the name Lisa Liberi and not Lisa Liberi the Plaintiff herein. Intelius
contradicts their own statements with their own Exhibits. See also EXHIBITS A and B
attached to Lisa Liberis Declaration and EXHIBIT 2 attached to Lisa Ostellas
Declaration, which proves the reports sold on Liberi and Ostella were not of a name only
but particular to Plaintiffs Liberi and Ostella herein.
49. Plaintiffs incorporate by reference, the previous paragraphs 2 through 46 as
if fully set forth here at length.
50. 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 Collegiate 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
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2d 807807 (2nd Dist. 1956), Schwartz v. Thiele, 242 Cal. App. 2d 799 [51 Cal. Rptr. 767] (2d
Dist. 1966).
51. As for Intelius statements that they are not responsible for the private data
Yosef Taitz in his professional capacity as CEO of Defendant Daylight Information Systems
Inc. [Daylight] obtained from their (Intelius) databases. To the contrary, pursuant to Cal
Civ. Code 1714(a), as pled by Plaintiffs in their FAC at pg. 81, 198, Intelius 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. 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 ofPrivacy:
52. 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.
53. Plaintiffs have sufficiently pled that their private data, including but not
limited to address, names, spouses names, Social Security numbers, dates of birth, etc. was
disseminated by Intelius to Defendants. Plaintiffs pled that Intelius disclosed their private
data without any type of permissible purpose, verification, or authorization of Plaintiffs
Plaintiffs pled that Intelius obtained their information from the Reed Defendants, without any
type of permissible or legal purpose. Plaintiffs pled Intelius re-sold their private information
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to third parties, including but not limited to Katrinka Lawson; Teresa Loggia; Julieana Choy;
Taitz and the Sankey Defendants. By Intelius own admissions, they have disclosed Plaintiffs
personal information numerous times to parties who had nopermissible purpose to obtain it
All these individuals received reports specifically to Plaintiff Lisa Liberi, just as Liberi
received on herself. SeeNelsons Declaration, Nelsons Exhibit 3 and EXHIBITS A and
Declaration.
54. All of which constitutes a serious invasion of privacy. The disclosure of a
persons Social Security number, birth date, address (unless you own the property, you
address is not public), unlisted telephone number; and other private data reflected in th
reports attached as Exhibit 5 to Nelsons Decl. and in EXHIBITS A and B attached to
Lisa Liberis Declaration and EXHIBIT 1attached to Lisa Ostellas Declaration.
55. In Hill, 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], citing Hill, supra, at pp. 3637.) As
our Court summarized Hill's holding, The party claiming a violation of the constitutiona
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
B attached to Lisa Liberis Declaration and EXHIBIT 2 attached to Lisa Ostella
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Cal.4th 319, 338 [64 Cal. Rptr. 3d 693, 165 P.3d 488], citing Hill, 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., Hill7 Cal.4th 1, 35.
B. Plaintiffs Second Cause of Action, Public Disclosure of Private Facts is
Properly Pled against Intelius:
56. Intelius states Plaintiffs 2nd Cause of Action for public disclosure of private
facts fail because they did not disclose any private facts about Plaintiffs. This is contradicted
by Intelius own statements as to who they furnished Liberis reports to and their Exhibit 3
showing Liberis Social Security number, date of birth, address, name, only information
specific to Plaintiff Liberi.
57. 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.
58. 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].
59. 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 Cal
App. 2d 697 [77 Cal. Rptr. 782] (2d Dist. 1969); Kinsey v. Macur, 107 Cal. App. 3d 264 [165
Cal. Rptr. 608].
//
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C. Plaintiffs 3rd
Cause of Action False Light Invasion of Privacy:
60. Intelius states Plaintiffs 3rd
Cause of Action fails because Plaintiffs failed to
state any information Intelius published to any person which was false. Plaintiffs asserted
that Intelius reports contained wrong names, wrong birth dates, wrong addresses; and wrong
social security numbers; so it appeared Plaintiffs were using multiple identities. Taitz
accused Liberi of using multiple names and Social Security numbers based on the report she
received from Intelius and the Reed Defendants. Intelius, in their Exhibits 1 and 2 show
Plaintiff Liberi being convicted in a criminal case that she was not convicted in.
61. 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.
62. 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.
63. Plaintiffs have met their burden. False Light Invasion of Privacy, concerns
ones piece of mind. Operating Engineers Local 3 v. Johnson, 110 Cal. App. 4th
180 [1 Ca
Rptr. 3d 552] (1st Dist. 2003).
X. PLAINTIFFS 5th
, 6th
and 17th
CAUSE OF ACTION WILL PREVAIL
64. 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.
65. Intelius claims these cause of actions will fail because Intelius did not
intentionally disclose information, not otherwise public [regarding Liberi or Ostella], which
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knew or should have reasonably known was obtained from personal information maintained
by a state agency or from records within a system of recordsmaintained by a federa
government agency and therefore, Plaintiffs are not entitled to statutory damages per
1798.85(a)(1), [Intelius MTD, pgs. 21, 22]. Intelius argument is contradicted by Nelsons
Declaration admitting to all 3rd parties Liberis reports were submitted to. It is commo
knowledge that Social Security numbers are handled by the Social Security Administration,
etc.
66. Intelius disclosed a report to Taitz and the Sankey Defendants which contained
Liberis Social Security number and date of birth. Intelius states Taitz and Liberi obtained
the same report, the actual reports Liberi received contained her Social Security number, so
by Intelius own admissions, they violated Cal. Civ. Code Section 1798.85(a)(1), which states
a person or entity may not communicate or make available to any third party, any ones
Social Security numbers. The Sankey Defendants and Taitz admit to receiving Plaintiffs
private data from the Reed Defendants and Intelius.
67. 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).
XI. PLAINTIFFS 8th
CAUSE OF ACTION
68. Plaintiffs incorporate by reference the previous paragraphs and their FAC at pgs
61-74 144-174; and pgs. 111-118, 281-300, as if fully set forth here at length.
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69. Intelius 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 Intelius, were stated as fact, and did notpertain to a general name, e.g. Lisa Liberi. The
reports provided by Intelius were specific to Plaintiffs Liberi and Ostella. Plaintiffs wil
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
the Sankey Defendants, Taitz, Katrinka Lawson; Teresa Loggia; Julieana Choy and others
who understood the defamatory meaning of the statement and its application to the person to
whom reference was made. 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).
XII. PLAINTIFFS 9th and 19th CAUSE OF ACTION
70. 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.
71. Intelius actions outlined herein and in Plaintiffs FAC caused Liberi and Ostella
severe mental and emotional suffering and distress Intelius 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].
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72. Intelius 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].
73. Intelius 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. Cree
Printing & Publishing Co., 100 Cal. App. 4th 736 [122 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).
74. Intelius disregard for the Plaintiffs privacy and right to maintain their data
private warrants damages for Negligent Infliction of Emotional Distress. See Ochoa v
Superior Court, (1985) 39 Cal. 3d 159 [216 Cal. Rptr.].
//
//
//
//
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XIII. PLAINTIFFS 18th
CAUSE OF ACTION, UNFAIR BUSINESS
PRACTICES
75. Plaintiffs incorporate by reference their FAC at pages 149-151, 390-397 as if
fully set forth here at length.
76. Intelius 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 Californi
Business & Professions Code 17200, et. seq.
77. 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 violationsABC Internat. Traders, Inc. v Matsushita Electric Corp., (1997)
14 Cal.4th 1247, 1270 [61 Cal. Rptr. 2d 112, 931 P.2d 290].
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78. Plaintiffs have satisfied the requirements ofCal. Business and Professions
th
XIV. PLAINTIFFS 20th
CAUSE OF ACTION, RES IPSA LOQUITOR:
79. 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.
80. 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
quotingProsseron Torts.)
81. Intelius had a duty to ensure that Sankey Defendants, Taitz, Katrinka Lawson
Teresa Loggia; Julieana Choy and others had a legal right to obtain Plaintiffs reports
Code 17200, et seq. and the requirements outlined in Schulz v. Neovi Data Corp., (2005)
129 Cal. App. 4 1.
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Intelius also had a duty to properly communicate and reinvestigate the incorrect information
they maintained on Liberi and Ostella. Instead, Intelius simply ignored the letters and refused
to adhere to their requirements under the FCRA. And, since suit has been filed against them
they have destroyed and spoiled evidence, deleted Ostellas account; deleted all searches and
actual reports purchased and provided on Liberi and Ostella.
82. Plaintiffs have met their burden, Intelius Motion must be Denied.
VIII. CONCLUSION:
83. For the reasons outlined herein, Defendant Intelius, Inc. Motion to Dismiss
must be Denied. In the alternative, Plaintiffs Request to Amend their Complaint.
Respectfully submitted,
Dated: September 23, 2011 /s/ Philip J. Berg
Philip J. Berg, Esquire
Pennsylvania I.D. 9867
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134
E-mail:[email protected]
Attorney in Pro Se and Counsel for Plaintiffs
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Declaration of Philip J. Berg, Esquire 1
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Philip J. Berg, Esquire (PA I.D. 9867)E-mail:[email protected]
LAW OFFICES OF PHILIP J. BERG
555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531
Telephone: (610) 825-3134 Fax: (610) 834-7659Attorney 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)
DECLARATION OF PHILIP J.
BERG, ESQUIRE
Date of Hearing: October 17, 2011Time of Hearing: 10:00 a.m.Location: Courtroom 10D
DECLARATION OF PHILIP J. BERG, ESQUIRE
I, Philip J. Berg, Esquire, am over the age of 18 and am a party to the within
action. I have personal knowledge of the facts herein, and if called to do, I could
and would competently testify. I am making this Declaration under the penalty of
perjury of the Laws of the United States pursuant to 28 U.S.C. 1746.
1. I am an Attorney in good standing, licensed to practice law in the
Commonwealth of Pennsylvania. I am licensed to practice in the U.S. District
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Declaration of Philip J. Berg, Esquire 2
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Courts, Middle and Eastern District of Pennsylvania; Third Circuit Court of
Appeals; the Pennsylvania Supreme Court; and the U.S. Supreme Court.
2. Intelius with their Motion to Dismiss [MTD] has filed a Declaration
from Benjamin Nelson [Nelson] who claims to be the Custodian of Records for
the past six [6] years.
3. Nelson states that I sent a letter on behalf of Plaintiff Lisa Liberi
[Liberi] and dealt with incorrect information they have on file for my client. My
letter, as demonstrated by Nelsons Exhibit 5 also pertained to Plaintiff Lisa
Ostella [Ostella] and dealt with incorrect information Intelius maintains on her.
4. Nelson also states they are not a Consumer Credit Reporting
Agency and they are not required to comply with the Fair Credit Reporting Act
[FCRA]. To the contrary, I located several locations on Intelius website, that
you can access by going to www.intelius.com that states they are a Consumer
Credit Reporting Agency and comply with the FCRA as well as other State and
Federal laws.
5. On file with the United States Security Exchange [SEC] is Intelius
October 19, 2009 Form S-1 Registration and located at
http://ipo.nasdaq.com/edgar_conv_html%5C2009%5C10%5C19%5C0000950123-
09-051082.html. Intelius states on pages 24 and 25 in their report to the SEC:
Because we use personal information in providing our information
services, we are subject to government regulation and vulnerable to
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adverse publicity. We provide many types of data and services thatalready are subject to regulation under the FCRA, Gramm-Leach-
Bliley Act, Drivers Privacy Protection Act and, to a lesser extent,various other federal, state and local laws and regulations. Violation
of these laws or regulations may result in substantial fines, judgmentsand other penalties.
These laws and regulations are designed to protect the privacy of the
public and to prevent the misuse of personal information in themarketplace.
6. Intelius repeats that they are a Consumer Reporting Agency and
follows the FCRA in their enterprise agreement located on their website at
http://www.intelius.com/enterpriseagreement.php. In this agreement, Intelius
states numerous times they are a consumer reporting agency governed by the
FCRA.
7. Intelius repeats they are a Consumer and Credit Reporting Agency in
their Security and compliance statements located on their website at
http://www.intelius.com/corp/security. In this publication by Intelius, they state:
Intelius recognizes the sensitivity surrounding many of its
applications and the data they rely on. As such, Intelius' informationsecurity policy addresses security at all levels: personnel, technology
and operations.
Intelius is a certified credit reporting agency.
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8. And, in Intelius TalentWise Agreement located at
https://www.talentwise.com/terms.html, Intelius again confirms they are governed
by the FCRA because they are a Consumer Reporting Agency:
DUE TO THE SENSITIVE AND HIGHLY REGULATEDNATURE OF THE DATA AND INFORMATION YOU AND
YOUR ORGANIZATION WILL GAIN ACCESS TOTHROUGH INTELIUS SCREENING SOLUTIONS LLC
(d/b/a "TALENTWISE") Intelius Screening Solutions LLC(d/b/a "TalentWise") is a consumer reporting agency and
provides consumer reports and investigative consumer reports("Screening Reports") as defined by the Fair Credit Reporting
Act ("FCRA")
9. The statements of Mr. Nelson are not accurate. I also have copies of
the background checks conducted on Plaintiff Lisa Liberi. Each background report
Mrs. Liberi obtained from Intelius and U.S. Search contained her full Social
Security number, date of birth, name, address, spouses name and other information
identified to her. The reports obtained by Mrs. Liberi were not generalized
searches of only a name.
10. Mr. Nelson states Defendant Orly Taitz obtained the same report as
Lisa Liberi. With this, Mr. Nelson has confirmed and substantiated Plaintiffs
allegations against Intelius. The reports Mrs. Liberi obtained were reports
governed by the FCRA as they were classified by Intelius as Consumer Reports
and that is the same Report obtained by Orly Taitz and Neil Sankey on Mrs. Liberi
as stated in Mr. Nelsons Declaration.
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11. The reports attached to Mr. Nelsons Declaration as Exhibit 1 and
2 are not the same reports obtained by Mrs. Liberi.
12. I am very concerned with the fact Intelius has spoiled evidence and
deleted evidence. This is very prejudicial to my clients. All evidence should have
been preserved by Intelius a