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					1    WALTER L. ELLIS
     Murrieta, CA., 92562
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     In Propia Persona.
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                                                SUPERIOR COURT OF CALIFORNIA,
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                                                  COUNTY OF SAN BERNARDINO.
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     SCHNEIDER NATIONAL, INC., a Wisconsin           Case No.: CIVDS 906308
10   Corporation; SCHNEIDER CARRIERS, INC., a Nevada
     corporation; JEFF AMES, an individual,          NOTICE OF SPECIAL MOTION TO STRIKE
11                                                   COMPLAINT OF PLAINTIFFS, MEMORANDUM OF
                     Plaintiffs,                     POINTS AND AUTHORITIES IN SUPPORT THEREOF,
12                                                   AND DECLARATION OF WALTER L. ELLIS.
             v.                                      Motion Date: ___12-09-2009 Time: 8:30 a. m.
13                                                   Dept.: S32.
     WALTER L. ELLIS, and DOES 1-10, inclusive,      Discovery Cut-Off: None.
14                                                   Motion Cut-Off: None.
                     Defendants.                     Trial Date: None.
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              TO THE PLAINTIFFS NAMED ABOVE, AND TO CHRISTOPHER S. MAILE, NORMAN L. PEARL, AND
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     DAVID S. BINDER, THEIR ATTORNEYS OF RECORD:
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              NOTICE IS HEREBY GIVEN that on _12-09, 2009, at 8:30 a. m., or as soon thereafter as the matter
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     may be heard, in Department S32 of the above-entitled Court, located at 303 W. 3rd St., San Bernardino,
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     California, Defendant Walter L. Ellis will specially move to strike and dismiss the original Complaint filed by
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     Plaintiffs and request sanctions from Plaintiffs and their attorneys on the bases that the Complaint is:
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              a. Frivolous.
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              b. Malicious.
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              c.   Does not state a cause of action.
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     ///
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              d. Filed primarily to scare, intimidate, and threaten Defendant into not freely exercising his First and
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                   Fourteenth Amendment rights, i. e., publicizing his events on his websites detailing what happened
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     Special Motion to Strike-Schneider National, Inc., v Ellis - 1                  WALTER L. ELLIS
                                                                                23485 Village Walk Pl., #218F
                                                                                    Murrieta, CA., 92562
1                  to Defendant when Plaintiffs caused his personal injuries by assaulting and battering Defendant, and

2                  falsely imprisoned him, WHICH ARE IN FACT TRUE, and not “scurrilous” or false, so as to play

3                  corporate denial games.

4             e. Does not state a valid claim of defamation brought by a publicly-traded corporation.

5             f.   Lacks specific allegations against Defendant for defamation, unlawful use of trademark, and illegal

6                  taping of conversations.

7             g. Filed solely to prevent Defendant for suing for discrimination, assault, and unfair competition, and to

8                  diminish Defendant‟s recovery in his related worker‟s compensation case.

9             This Special Motion will be based on this Notice of Motion, the Declaration of Walter L. Ellis, the
10   Memorandum of Points and Authorities attached hereto, the frivolous Complaint on file herein, the lack of proof
11   presented by Plaintiffs, the other records and papers on file herein, and on any other oral and documentary
12   evidence that may be presented at the hearing of the Special Motion.
13

14                                                                                th
                                                                      Dated this 20 day of October, 2009
15                                                                                        By:
                                                                                                WALTER L. ELLIS
16                                                                                              23485 Village Walk Pl., #218F
                                                                                                Murrieta, CA., 92562
17                                                                                              In Propia Persona.
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26                                                      TABLE OF CONTENTS.
27   I. INTRODUCTION.                                                                                                       7
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     Special Motion to Strike-Schneider National, Inc., v Ellis - 2                         WALTER L. ELLIS
                                                                                       23485 Village Walk Pl., #218F
                                                                                           Murrieta, CA., 92562
1    II. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY SECTION 425.16.                                       7

2    III. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF CANNOT DEMONSTRATE A
     PROBABILITY THAT THEY WILL PREVAIL ON THEIR CLAIMS.                                                     8
3
     IV. DEFENDANT’S ISSUES AS POSTED ON HIS WEBSITES, DEAL WITH TRUCK DRIVER AND
4    HIGHWAY SAFETY, MATTERS OF PUBLIC INTEREST.                                                             9

5    V. DEFENDANT’S POSTINGS ARE PROTECTED BY THE FEDERAL COMMUNICATIONS DECENCY
     ACT.                                                                                                    10
6
     VI. PLAINTIFFS ARE A PUBLICLY-TRADED CORPORATION, NOT PRIVATE PERSONS, AND MUST
7    PLEAD AND PROVE “ACTUAL MALICE”.                                                                        11

8    VII. PLAINTIFFS CANNOT ESTABLISH A CLAIM OF “ACTUAL MALICE”, PURSUANT TO THE NEW
     YORK TIMES CASE.                                                                                        13
9
     VIII. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS DO NOT AND CANNOT MAKE A
10   PRIMA FACIE CASE AGAINST THIS DEFENDANT FOR THE ALLEGATIONS OF THE COMPLAINT, AND
     THEREFORE, CANNOT DEMONSTRATE A PROBABILITY THAT THEY WILL PREVAIL ON THEIR
11   CLAIMS.                                                                           16

12   IX. DEFENDANT’S USE OF THE “SCHNEIDER” TRADEMARK WAS ALSO PROTECTED BY THE FIRST
     AMENDMENT.                                                                                              19
13
     X. DEFENDANT’S TAPE-RECORDED CONVERSATIONS WERE SUBJECT TO BEING ABSOLUTELY
14   PRIVILIEGED.                                                                                            19

15   XI. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND.                                   20

16   XII. SANCTIONS ARE WARRANTED AS TO MAKE A HUGE PUBLIC EXAMPLE OF THE PLAINTIFFS
     WHO CANNOT HANDLE LOSING.                                                                               20
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     XIII. CONCLUSION.                                                                                       21
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                                                           TABLE OF CASES.
27
     Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 533, 245 Cal.Rptr. 78.                      8
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     Special Motion to Strike-Schneider National, Inc., v Ellis - 3               WALTER L. ELLIS
                                                                             23485 Village Walk Pl., #218F
                                                                                 Murrieta, CA., 92562
1    Baumgartner v. United States (1944) 322 U.S. 665, 674 [88 L.Ed. 1525, 1531].                                        14

2    Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357.                                   14-15, 16

3    Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 75, 1082, 47 Cal.Rptr.2d 661.                                  14

4    Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511 [80 L.Ed.2d 502, 515-523].              14-15
                                                                      th
5    Bosley Medical Institute, Inc., v. Kremer, 05 C.D.O.S. 2849 (9 Cir. 2005).                                          19

6    Bridges v. California (1941) 314 U.S. 252, 270-271 [86 L.Ed. 192, 207].                                             14

7    Brown v. Hartlage (1982) 456 U.S. 45, 61 [71 L.Ed.2d 732, 746].                                                     14

8    Buckley v. Valeo (1976) 424 U.S. 1, 15 [46 L.Ed.2d 659, 685].                                                       14

9    Castro v. Higaki (1994) 31 Cal.App.4th 350, 358, fn. 8, 37 Cal.Rptr.2d 84.                                          17

10   Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650-651.                                             9

11   City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87, 260 Cal.Rptr. 520, 776 P.2d 222.                     17

12   College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at page 719, 720, 34 Cal.Rptr.2d 898, 882 P.2d 894. 17

13   Damon v. Ocean Hills Journalism Club, (1999) 85 Cal.App.4th 468, 479.                                                9

14   Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49, 52, 158 Cal.Rptr. 519.                     14, 15

15   Evans v. Unkow, supra, 38 Cal.App.4th at p. 1496, 45 Cal.Rptr.2d 624.                                     14, 16, 17-18

16   Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995).                                                         19

17   Garrison v. Louisiana (1964) 379 U.S. 64, 79 [13 L.Ed.2d 125].                                                      16

18   Gertz v. Welch (1974) 418 U.S. 323, 339-340 [41 L.Ed.2d 789].                                                       14

19   Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 659 [105 L.Ed.2d 562, 571].                    14

20   Hein v. Lacy (Kan.1980) 228 Kan. 249, 263 [616 P.2d 277, 286].                                                      15

21   Hung v. Wang (1992) 8 Cal.App.4th 908, 931, 11 Cal.Rptr.2d 113.                                                     17

22   Kathleen R. v. City of Livermore (2001) 87 Cal.App.4 th 684, 692.                                                   11

23   In re David C. (1984) 152 Cal.App.3d 1189, 1208, 200 Cal.Rptr. 115.                                                 14

24   Jones v. Calder (1982) 138 Cal.App.3d 128, 134, 187 Cal.Rptr. 825.                                                  13

25   Kachig v. Boothe, supra, 22 Cal.App.3d 626, 641.                                                                    19

26   Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1290.                                                12

27   Looney v. Superior Court, supra, 16 Cal.App.4th at pp. 538-539.                                                     18

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     Special Motion to Strike-Schneider National, Inc., v Ellis - 4                 WALTER L. ELLIS
                                                                               23485 Village Walk Pl., #218F
                                                                                   Murrieta, CA., 92562
1    M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 628-629.                                                    10

2    Macias v. Hartwell (1997) 55 Cal.App.4th 669, 64 Cal.Rptr.2d 222.                                                15

3    Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 675.                                                               12

4    Matson v. Dvorak (1995) 40 Cal.App.4th 539.                                                                  13, 15

5    New York Times Co. v. Sullivan, supra, 376 U.S. at pp.0069 271-272 (11 L.Ed.2d at p. 701).                14-15, 18

6    Nicosia v. Rooy (N.D.Cal.1999) 72 F.Supp.2d 1093, 1110.                                                           9

7    Osmond v. EWAP (1984) 153 Cal.App.3d 842, 200 Cal.Rptr. 674.                                                     13

8    Patriot Co. v. Roy (1971) 401 U.S. 265, 271-272 [28 L.Ed.2d 35, 41].                                             14

9    Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244.                                                12, 16

10   Ribas v. Clark (1985) 38 Cal.3d 355, 364-365, 212 Cal.Rptr. 143, 696 P.2d 637.                                19-20

11   Robertson v. Rodriguez, supra, 36 Cal.App.4th at pp. 359-360, 42 Cal.Rptr.2d 464.                         16, 18, 19

12   Rudnick v. McMillan, supra, 25 Cal.App.4th 1183, 1190.                                                           12

13   Sakuma v. Zellerbach Paper Co. (1938) 25 Cal.App.2d 309, 321-322, 77 P.2d 313.                                   13

14   Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413, 134 Cal.Rptr. 402, 556 P.2d 764.                        14

15   Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226.                                      9, 12-13

16   St. Amant v. Thompson (1968) 390 U.S. 727, 732 [20 L.Ed.2d 262, 267].                                        14, 16

17   Time v. Hill (1967) 385 U.S. 374 [17 L.Ed.2d 456].                                                               14

18   Walbrook Insurance v. Liberty Mutual Insurance (1992) 5 Cal.App.4th 1445, 1461, 7 Cal.Rptr.2d 513.                8

19   Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824, 830, 33 Cal.Rptr.2d 446.                       16, 17, 18

20   Zeran v. American Online (4th Cir.1997) 129 F.3d 327, 330.                                                       11

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26                                                     TABLE OF AUTHORITIES.

27   Civil Code Sec. 47.                                                                                              19

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     Special Motion to Strike-Schneider National, Inc., v Ellis - 5                 WALTER L. ELLIS
                                                                               23485 Village Walk Pl., #218F
                                                                                   Murrieta, CA., 92562
1    Code of Civil Procedure Sec. 425.13.                                                                             17

2    Code of Civil Procedure Sec. 425.16.                                                        7-9, 10, 15, 16, 17, 18

3    Elections Code Sec. 20501.                                                                                       14

4    Evidence Code Sec. 702(a).                                                                                       17

5    Penal Code Sec. 637.2.                                                                                       19, 20

6    United States Constitution, First Amendment.                                                       7, 14, 15, 16, 19

7    47 U. S. C., Sec. 230.                                                                                       10, 11

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26                                      MEMORANDUM OF POINTS AND AUTHORITIES.

27                                                         I. INTRODUCTION.

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     Special Motion to Strike-Schneider National, Inc., v Ellis - 6                WALTER L. ELLIS
                                                                              23485 Village Walk Pl., #218F
                                                                                  Murrieta, CA., 92562
1                This is the story of where Defendant came back to the terminal to work on his logs at the terminal. When

2    Defendant was told by Jeff Ames and Luke Simendinger to come to a room to discuss the logs, and then

3    Defendant was kept in the room. When Defendant attempted to leave the Fontana terminal, Brandon

4    Trahulchavee BRUTALLY ATTACKED DEFENDANT FROM BEHIND, PULLED DEFENDANT’S RIGHT ARM,

5    AND INJURED DEFENDANTS NO. 9 RIB, HIS RIGHT KNEE, AND CAUSED OTHER INJURIES TO

6    DEFENDANT.

7                On top of this CORPORATE FASCISM, Plaintiffs do not want Defendant to publicize the events on his

8    websites, and filed this Action for damages, punitive damages, and injunctive relief, thereby depriving Defendant

9    of his freedoms of speech, the press, and to petition to redress their grievances by filing this frivolous and

10   malicious lawsuit. The lawsuit is improper, without merit, and filed to further harass this Defendant. Because it

11   arises from this Defendant‟s exercise of his First Amendment right of speech and press (by publishing the events

12   on his websites), this lawsuit is subject to a special motion to strike under Code of Civil Procedure section
             1
13   425.16 , which should be granted for the reasons set forth below. This Defendant will ask that this Court not only

14   dismiss this suit, but also grant all attorneys fees and costs incurred in this action.

15                       II. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY SECTION 425.16.

16               Recognizing the potential chilling effect of lawsuits brought primarily for the purpose of curbing the valid
                                                                                 2
17   exercise of the constitutional rights of petition or freedom of speech , the California Legislature last year added

18   section 425.16 to the Code of Civil Procedure. Effective January 1, 1993, the section specifies that an action

19   arising from a defendant's exercise of the constitutional right to petition the government shall be subject to a
                                                                                                    3
20   motion to strike unless the plaintiff can show a "probability" of success on the merits. Furthermore, California's

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     1
       Subsequent section references are to the Code of Civil Procedure, unless otherwise noted.
     2
22     The purpose of the legislation is set forth in its first subsection:
     "The Legislature finds that there has been a disturbing increase in lawsuits brought primarily to chill the valid
23   exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The Legislature
     also finds and declares that it is in the public interest to encourage continued participation in matters of public
24   significance, and that this participation should not be chilled through abuse of the judicial process." Sec.
     425.16(a).
     3
25     Section 425.16(b) provides, in pertinent part:
                 "A cause of action arising from any act of that person in furtherance of the person's right of
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                 petition or free speech in connection with a public issue shall be subject to a special motion to
                 strike, unless the court determines that the plaintiff has established that there is a probability that
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                 the plaintiff will prevail on the claim."
28   Code of Civil Procedure §425.16(e) also states that:
     Special Motion to Strike-Schneider National, Inc., v Ellis - 7                       WALTER L. ELLIS
                                                                                     23485 Village Walk Pl., #218F
                                                                                         Murrieta, CA., 92562
1    Legislature has left no doubt about the proper interpretation of the anti-SLAPP statute, Section 425.16. In a bill

2    explicitly intended to overrule the Court of Appeal's decision in three earlier cases, the Legislature amended the

3    statute in 1997 to clarify that it "shall be construed broadly." (Section 425.16(a), as amended by Stats. 1997, c.

4    277.) The Legislature has made this Court's job easy. This Court need only follow the plain language of the

5    statute and the unmistakable legislative intent clarifying that it be construed broadly, a clarification that under

6    settled principles is applicable to this case.

7    III. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS CANNOT DEMONSTRATE A

8    PROBABILITY THAT THEY WILL PREVAIL ON THEIR CLAIMS.
                                                                                                          4
9             As demonstrated below, Plaintiffs cannot meet its burden of establishing a probability that it will prevail
                                                                       5
10   on the merits of his claims, as required by section 425.16(b). Therefore, this special motion to strike should be

11   granted.

12   IV. DEFENDANT’S ISSUES AS POSTED ON HIS WEBSITES, DEAL WITH TRUCK DRIVER AND HIGHWAY

13   SAFETY, MATTERS OF PUBLIC INTEREST.

14            As previously noted, section 425.16, subdivision (e) defines the types of acts covered by the SLAPP law,

15   and includes four illustrative sub-parts. Specifically, section 425.16(e)(3) and (e)(4) provide that acts falling within

16

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             “(e) As used in this section, „act in furtherance of a person's right of petition or free speech under the
     United States or California Constitution in connection with a public issue‟ includes:
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             “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or
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     any other official proceeding authorized by law;
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             “(2) any written or oral statement or writing made in connection with an issue under consideration or
     review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
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            “(3) any written or oral statement or writing made in a place open to the public or a public forum in
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     connection with an issue of public interest;
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              “(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the
     constitutional right of free speech in connection with a public issue or an issue of public interest.
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     4
       "Probable" is synonymous with "likely", and "probability" is synonymous with "likelihood". (Walbrook Insurance v.
25   Liberty Mutual Insurance (1992) 5 Cal.App.4th 1445, 1461, 7 Cal.Rptr.2d 513; see also Black's Law Dictionary
     (Rev.4th Ed. 1968) p.1364 ["probability" means "likelihood"].) "A 'probable' consequence is one more likely to
26   follow its cause than not..." (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 533, 245 Cal.Rptr.
     78.)
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     5
      Unlike a demurrer, where the Court is limited to considering matters appearing on the face of the complaint (or
28   matters of which judicial notice is taken), on a section 425.16 special motion to strike, the Court "shall consider
     Special Motion to Strike-Schneider National, Inc., v Ellis - 8                    WALTER L. ELLIS
                                                                                  23485 Village Walk Pl., #218F
                                                                                      Murrieta, CA., 92562
1    the statute's protection include: "(3) any written or oral statement or writing made in a place open to the public or

2    a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the

3    exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public

4    issue or an issue of public interest."

5             As also noted, the statute expressly mandates that it is to be construed broadly. Indeed, even before that

6    mandate, what constitutes a matter of public interest has been broadly construed in the SLAPP context.

7    Illustrative is the statement by the Court of Appeal in Church of Scientology v. Wollersheim (1996) 42

8    Cal.App.4th 628, 650-651:

9                      “Although matters of public interest include legislative and governmental activities, they
              may also include activities that involve private persons and entities, especially when a large,
10            powerful organization may impact the lives of many individuals. Examples are product liability
              suits, real estate or investment scams, etc. The record reflects the fact that the Church [of
11            Scientology] is a matter of public interest, as evidenced by media coverage and the extent of the
              Church's membership and assets.”
12

13            Similarly, Damon v. Ocean Hills Journalism Club, (1999) 85 Cal.App.4th 468, 479, held that:

14                    "The definition of 'public interest' within the meaning of the anti-SLAPP statute has been
              broadly construed to include not only governmental matters, but also private conduct that impacts
15            a broad segment of society and/or that affects a community in a manner similar to that of a
              government entity."
16

17            (Also see Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226, 238-240 [statements

18   that a nationally-known political consultant had physically and verbally abused his former wives determined to be

19   a matter of public interest]; cf. Nicosia v. Rooy (N.D.Cal.1999) 72 F.Supp.2d 1093, 1110 [critical statements

20   about biographer of Jack Kerouac deemed to involve a matter of public interest].)

21            Most recently, in M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 628-629, the Court of Appeal

22   held that section 425.16 applied to a photograph of a Little League team published in Sports Illustrated and then

23   shown on an HBO television show, which photograph was used to illustrate stories about adult coaches who

24   sexually molest youths playing team sports. The Court held that the photograph concerned a broad public issue,

25   noting: "Although plaintiffs try to characterize the 'public issue' involved as being limited to the narrow question of

26   the identity of the molestation victims, that definition is too restrictive. The broad topic of the article and the

27
     the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is
28   based." Sec. 425.16(b).
     Special Motion to Strike-Schneider National, Inc., v Ellis - 9                   WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1    program was not whether a particular child was molested but rather the general topic of child molestation in

2    youth sports, an issue which, like domestic violence, is significant and of public interest." (89 Cal.App.4th at 629.)

3    Applying the language and rationale of the foregoing authorities here, the publications upon which Plaintiffs'

4    defamation claims rest concern an issue of public interest.

5                The issue which Plaintiffs and their critics address -- the report that Defendant was brutally attacked,

6    falsely imprisoned, and Schneider violating Federal transportation laws -- concerns a highly controversial matter

7    which is of significant public importance and interest, affecting the health of millions of people and involving

8    billions of dollars. Moreover, by maintaining their numerous websites and publishing widely about these issues,

9    plaintiffs themselves must believe that the public is interested in their criticisms of their business practices.

10   Finally, the substantial publicity received by these plaintiffs is more evidence that the issue is a matter of public

11   interest.

12       V. DEFENDANT’S POSTINGS ARE PROTECTED BY THE FEDERAL COMMUNICATIONS DECENCY ACT.

13               The Complaint alleges that Defendant wrote false and “scurrilous” statements his websites, mostly

14   published to “Blogger”-style Blogs (derivative of the term “web log”). Plaintiffs‟ lawsuit has not specifically

15   pleaded why the postings were false and “scurrilous”

16               47 U.S.C. §230 is part of the Communications Decency Act enacted by Congress in 1996 ("the Act"),

17   and includes provisions creating immunity for certain communications on the Internet. As pertinent here, 47

18   U.S.C. §230(c)(1) provides that: "No provider or user of an interactive computer service shall be treated as the
                                                                                                            6
19   publisher or speaker of any information provided by another information content provider." And Section

20   230(e)(3) provides in relevant part: "No cause of action may be brought and no liability may be imposed under

21   any State or local law that is inconsistent with this section."

22               These protections for covered communications were enacted "to promote the continued development of

23   the Internet and other interactive computer services and other interactive media," and "to preserve the vibrant

24
     6
      Section 230(f)(2) defines "interactive computer service" as any information service system, or access software
25   provider that provides or enables computer access by multiple user to a computer server ..." Section 230(f)(3)
     defines "information content provider" as "any person or entity that is responsible, in whole or in part, for the
26   creation or development of information provided through the Internet or any other interactive computer serve.
     Section 230(f)(4) defines "access software provider" as "a provider of software (including client or server
27   software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content;
     (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset,
28   organize, reorganize, or translate content."
     Special Motion to Strike-Schneider National, Inc., v Ellis - 10                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1    and competitive free market that presently exists for the Internet and other interactive computer services,

2    unfettered by Federal or State regulation." (47 U.S.C. 230(b)(1),(2).) "[B]y its plain language, § 230[(c)(1)]

3    creates a federal immunity to any cause of action that would make service providers liable for information

4    originating with a third-party user of the service." (Zeran v. American Online (4th Cir.1997) 129 F.3d 327, 330,

5    cited with approval in Kathleen R. v. City of Livermore (2001) 87 Cal.App.4 th 684, 692.) Thus, § 230(c)(1)

6    provides immunity to users, as well as providers, of interactive computer services.

7             Plaintiffs would contend that to apply Section 230 would be contrary to one of the purposes of the

8    Community Decency Act, specifically to ensure vigorous enforcement of federal criminal laws to deter and

9    punish trafficking in obscenity, stalking, and harassment by means of computer. This argument would be without

10   merit, because §§ 230(c)(1) and (e)(3) merely provide for immunity from civil liability, and the Act expressly

11   provides that it has no effect on federal criminal statutes. (47 USC §230(e)(1).)

12            In sum and in short, no plaintiff has any claim against Defendant. Plaintiffs can show no statement of

13   fact, false or otherwise. But assuming arguendo Plaintiffs could point to a statement that would support a libel

14   claim, their claims would fail because they are public figures.

15   VI. PLAINTIFFS ARE A PUBLICLY-TRADED CORPORATION, NOT PRIVATE PERSONS, AND MUST

16   PLEAD AND PROVE “ACTUAL MALICE”.

17            “…you asked for it!” (Esai Morales, La Bamba.)

18   ///

19            Plaintiffs love to subjugate minorities, as well as sticking it to their workers by putting them needlessly in

20   debt. Plaintiffs love to make asses and goons out of themselves. They cannot be in “high esteem” by the public,

21   and then turn around and allege they are private persons. They cannot have their cake and eat it too. Sipple v.

22   Foundation for National Progress (Cal. 2 App. Dist. 1999) 71 Cal.App.4th 226, 83 Cal.Rptr.2d 677, states that:

23                     “In order to prevail on a libel action, public figures must prove, by clear and convincing
              evidence, that the libelous statement was made with actual malice -- with knowledge that it was
24            false or with reckless disregard for the truth. (Reader's Digest Assn. v. Superior Court (1984) 37
              Cal.3d 244, 253.) There are two types of public figures: „The first is the “all purpose” public figure
25            who has “achieve[ed] such pervasive fame or notoriety that he becomes a public figure for all
              purposes and in all contexts.” The second category is that of the “limited purpose” or “vortex”
26            public figure, an individual who “voluntarily injects himself or is drawn into a particular public
              controversy and thereby becomes a public figure for a limited range of issues."‟ (Ibid.) Thus, one
27            who undertakes a voluntary act through which he seeks to influence the resolution of the public
              issues involved is a public figure. (Id., at pp. 254-255.) The limited purpose public figure „loses
28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 11                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1             certain protection for his reputation only to the extent that the allegedly defamatory
              communication relates to his role in a public controversy.‟ (Id., at pp. 253-254.)
2
                       “The record shows that appellant is a nationally known political strategist, that he has
3             been profiled, quoted, interviewed, and has used the media for his professional advantage many
              times, and that he represents national leaders. His campaign strategy includes the topics of
4             violence against women, crime, health care, illegal immigration, and the death penalty. Indeed,
              the record shows that he is one of the experts to whom the media turns for comment, and that he
5             has publicly commented on the strengths and weaknesses of political candidates. We are not
              convinced by appellant's argument that „because he is told what campaign themes to develop, it
6             would be the height of unfairness to conclude that he is a public figure.‟ He also minimizes the
              notoriety he has achieved through exposure in the media, claiming that the press has only sought
7             his observations concerning the relative political impact of particular issues. The fact that the
              media seeks his observations on the political climate, political issues, and national figures, and
8             that he has sought out media attention as exemplified by the press conference he called after he
              left the Dole campaign does not lend credibility to his claim of anonymity. We conclude that
9             appellant is a public figure. (Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 675 [individuals
              closely associated with public figures, functioning as alter ego and personal representative to the
10            world, are themselves public figures]; Rudnick v. McMillan, supra, 25 Cal.App.4th 1183, 1190
              [person can become limited public figure by discussing matter with the press or by being quoted
11            by the press]; Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1290 [managers
              of publishing company are public figures because they are intimately involved in public political
12            debate in their community and the community has a legitimate and substantial interest in their
              conduct regarding the operation of the newspaper].)
13
                       “Regardless of whether he is an all purpose public figure, or a limited purpose public
14            figure, appellant has failed to show by clear and convincing evidence that the article was
              published with malice. Appellant simply failed to show that respondents entertained serious
15            doubts as to the truth of the publication. (Reader's Digest Assn. v. Superior Court, supra, 37
              Cal.3d 244, 256.) He points to his declaration as evidence that respondents recklessly
16            disregarded the truth or falsity of the statements about him. In his declaration, he states that Blow
              ignored the following in his article: that the abuse allegations by Regina and Deborah never came
17            up until the custody hearing; „the fact that [appellant] spent close to $300,000.00 and voluntarily
              exposed [himself] to a proceeding where [he] knew that these kinds of false assertions are
18            frequently made;‟ „the fact that the reliability of the photograph of Regina's bruises was seriously
              questioned at the custody hearing;‟ that the judge and guardian ad litem concluded that Evan's
19            best interests would be served by placement with appellant; that an expert testified Regina and
              Deborah' s behavior was not consistent with abused spouses; that appellant was aiding a
20            competitor to Deborah's brother in his race for attorney general; and that Regina had sent a letter
              to Senator Dole threatening to expose appellant's spousal abuse.“
21
              In Sipple, plaintiff, an advertising executive whose clients included former Governor Pete Wilson of
22
     California, former Governor Jim Edgar of Illinois, then-Governor George W. Bush of Texas, former Senator Bob
23
     Dole, Senator Orrin Hatch and the late-Senator John Chaffee; sued the Mother Jones magazine for libel after
24
     that magazine published a revealing article on plaintiff‟s controversial family law case. Here, in the instant case
25
     Plaintiffs are a publicly-traded corporation. No matter what good and bad they done, they are a public, and
26
     opportunistic figure. To some people, they are a danger to society. Plaintiffs did the acts against Defendant by
27

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 12                 WALTER L. ELLIS
                                                                                23485 Village Walk Pl., #218F
                                                                                    Murrieta, CA., 92562
1    themselves. It is the Plaintiffs who ruined their own reputation, not the Defendant. This Complaint has to be

2    dismissed.

3    VII. PLAINTIFF CANNOT ESTABLISH A CLAIM OF “ACTUAL MALICE”, PURSUANT TO THE NEW YORK

4    TIMES CASE.

5             Plaintiffs are a publicly-traded corporation. Defendant has hosted his own websites and blogs. The

6    Complaint is very unclear as to who said or done what. There is no proof that there was an effort by this

7    Defendant to damage Plaintiffs as though they were kings of the world or something.

8             To prove defamation of a publicly known person, like Plaintiffs, Plaintiffs must plead and prove “actual

9    malice”. Matson v. Dvorak (1995) 40 Cal.App.4th 539, explains that:

10                     “The general rule for defamation is that only one „who takes a responsible part in the
              publication is liable for the defamation.‟ (Osmond v. EWAP (1984) 153 Cal.App.3d 842, 852, 200
11            Cal.Rptr. 674 [italics in original]; Jones v. Calder (1982) 138 Cal.App.3d 128, 134, 187 Cal.Rptr.
              825.) For example, the business manager of a foreign newspaper was not liable where there was
12            no evidence that he had control over the editorial staff and it was undisputed that he had no
              knowledge of the preparation or content of the subject articles until after publication (Sakuma v.
13            Zellerbach Paper Co. (1938) 25 Cal.App.2d 309, 321-322, 77 P.2d 313); and the distributor of
              allegedly libelous materials cannot be held liable unless it is shown that he either knew of its
14            libelous content or knew of facts which imposed a duty to investigate. (Osmond v. EWAP, supra,
              at p. 855, 77 P.2d 313.)”
15

16            Here, there is no way the Complaint states who actually said or did what on Defendant‟s websites or

17   who did any other damage to Plaintiffs in the Complaint. There must be an exactitude of who wrote, said, or did

18   what; otherwise, the Plaintiffs as we have here, are improperly grasping at straws.

19            There is no proof, nor is there anything specifically pled, on the issue that this Defendant made any of

20   the defamatory statements or other conduct. Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 52

21   Cal.Rptr.2d 357, also explains that:

22                    “‟[T]he constitutional guarantee [of free speech] has its fullest and most urgent application
              precisely to the conduct of campaigns for political office.‟ (Buckley v. Valeo (1976) 424 U.S. 1, 15
23            [46 L.Ed.2d 659, 685].) „Thus, those engaged in political debate are entitled not only to speak
              responsibly but to “... speak foolishly and without moderation.” (Baumgartner v. United States
24            (1944) 322 U.S. 665, 674 [88 L.Ed. 1525, 1531].)‟ (Desert Sun Publishing Co. v. Superior Court
              (1979) 97 Cal.App.3d 49, 52, 158 Cal.Rptr. 519.)
25
                       “…
26
                      “We next determine whether Sybert established the probability of his success. Because
27            the existence of the libel action potentially impairs the right of free speech, we will independently
              decide whether Sybert made a sufficient showing of the probability of success of his lawsuit.
28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 13                 WALTER L. ELLIS
                                                                                23485 Village Walk Pl., #218F
                                                                                    Murrieta, CA., 92562
1             (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511 [80 L.Ed.2d 502,
              515-523]; Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 75, 1082, 47 Cal.Rptr.2d 661.)
2
                       “As a public figure, Sybert had the burden of showing, by clear and convincing evidence,
3             that the objectionable statements had been made with actual malice. (Elec.Code, § 20501; Harte-
              Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 659 [105 L.Ed.2d 562, 571];
4             Evans v. Unkow, supra, 38 Cal.App.4th at p. 1496, 45 Cal.Rptr.2d 624.) Malice may be
              established by showing that petitioners had recklessly disregarded the truth. (St. Amant v.
5             Thompson (1968) 390 U.S. 727, 732 [20 L.Ed.2d 262, 267].)

6                     “The clear and convincing standard requires that the evidence be such as to command
              the unhesitating assent of every reasonable mind. (In re David C. (1984) 152 Cal.App.3d 1189,
7             1208, 200 Cal.Rptr. 115.) Actual malice cannot be implied and must be proven by direct
              evidence. (Time v. Hill (1967) 385 U.S. 374 [17 L.Ed.2d 456]; Sanborn v. Chronicle Pub. Co.
8             (1976) 18 Cal.3d 406, 413, 134 Cal.Rptr. 402, 556 P.2d 764.)

9                     “As mentioned, our Constitution affords protection to statements made during the course
              of debate on political issues. (Brown v. Hartlage (1982) 456 U.S. 45, 61 [71 L.Ed.2d 732, 746];
10            Patriot Co. v. Roy (1971) 401 U.S. 265, 271-272 [28 L.Ed.2d 35, 41].) In the words of Justice
              Hugo Black, „... it is a prized American privilege to speak one's mind, although not always with
11            perfect good taste, on all public institutions.‟ (Bridges v. California (1941) 314 U.S. 252, 270-271
              [86 L.Ed. 192, 207].) Under the notions of the First Amendment, „[h]owever pernicious an opinion
12            may seem, we depend for its correction not on the conscience of judges and juries but on the
              competition of other ideas.‟ (Gertz v. Welch (1974) 418 U.S. 323, 339-340 [41 L.Ed.2d 789].)
13
                        “In Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. 485 [80 L.Ed.2d 502],
14            the actionable statements consisted of a writer's unbridled and inaccurate description of a sound
              system. The Supreme Court noted that the „language chosen was “one of a number of possible
15            rational interpretations” of an event “that bristled with ambiguities” and descriptive challenges for
              the writer.‟ (Id., at p. 512 [80 L.Ed.2d at p. 525].) Nonetheless, because it was protected speech,
16            plaintiff was required to „demonstrate with clear and convincing evidence that the defendant
              realized that his statement was false or that he subjectively entertained serious doubt as to the
17            truth of the statement.‟ (Id., at p. 511,0067 fn. 30 [80 L.Ed.2d at p. 524].)

18                    “The Supreme Court found the writer's description of the speaker system to be inaccurate
              but, nonetheless, was deserving of the protection of the First Amendment. „ “[E]rroneous
19            statement is inevitable in free debate, and ... must be protected if the freedoms of expression are
              to have the „breathing space‟ that they „need ... to survive.‟ “ [New York Times Co. v. Sullivan,
20            supra, 376 U.S. at pp.0069 271-272 (11 L.Ed.2d at p. 701).]‟ (Bose Corp. v. Consumers Union of
              U.S. Inc., supra, 466 U.S. at p. 513 [80 L.Ed.2d at p. 525].)
21
                       “…
22
                        “In any election, public calumny of candidates is all too common. „Once an individual
23            decides to enter the political wars, he subjects himself to this kind of treatment.... [D]eeply
              ingrained in our political history is a tradition of free-wheeling, irresponsible, bare knuckled, Pier
24            6, political brawls.‟ (Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d at p. 54,
              158 Cal.Rptr. 519.) To endure the animadversion, brickbats and skullduggery of a given
25            campaign, a politician must be possessed with the skin of a rhinoceros. (Hein v. Lacy (Kan.1980)
              228 Kan. 249, 263 [616 P.2d 277, 286].) Harry Truman cautioned would-be solons with sage
26            advice about the heat in the kitchen.”

27

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 14                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1             Here, there is nothing in the Complaint that pleads that Defendant actually committed “actual malice” as

2    to Plaintiffs. What we have is conjecture, guesses, hyperbole, distortion, invective, tirades, speculation, and guilt

3    by association. Furthermore, speech made on websites, which relates to the political issues involving Schneider

4    is protected under the First Amendment. Macias v. Hartwell (1997) 55 Cal.App.4th 669, 64 Cal.Rptr.2d 222,

5    explains that:

6                      “Where, as here, a candidate speaks out on issues relevant to the office or the
              qualifications of an opponent, the speech activity is protected by the First Amendment. (Beilenson
7             v. Superior Court, supra, 44 Cal.App.4th 944, 949-950.) „The right to speak on political matters is
              the quintessential subject of our constitutional protections of the right of free speech. “Public
8             discussion about the qualifications of those who hold or wish to hold positions of public trust
              presents the strongest possible case for applications of the safeguards afforded by the First
9             Amendment.” [Citations.] Accordingly, the campaign mailer at issue was plainly published in
              furtherance of the author's “‟right. . . of free speech under the United States or California
10            Constitution in connection with a public issue,‟" and thus brings an action arising from its
              publication within the purview of section 425.16. [Citation.]‟ (Matson v. Dvorak, supra, 40
11            Cal.App.4th at p. 548.)”

12            All statements made on the Defendant‟s websites are free speech all protected by the First Amendment.

13   The entire Complaint should not be heard by this Court, because it seeks review of all undefined statements.

14   Propriety of any political statement is a political question, not a judicial one.

15   ///

16   ///

17   ///

18   ///

19   VIII. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS DO NOT AND CANNOT MAKE A

20   PRIMA FACIE CASE AGAINST THIS DEFENDANT FOR THE ALLEGATIONS OF THE COMPLAINT, AND

21   THEREFORE, CANNOT DEMONSTRATE A PROBABILITY THAT THEY WILL PREVAIL ON THEIR CLAIMS.

22            Since this a First Amendment case involving the Plaintiffs, a publicly-traded corporation, it is the Plaintiffs

23   that not only has the burden of specifically pleading the allegations of the Complaint, but also, the Plaintiffs must

24   produce competent evidence that he would probably succeed on the merits of the action. Beilenson v. Superior

25   Court (1996) 44 Cal.App.4th 944, also explains that:

26                    “Even if the statements are deemed to be untruthful and not statements of opinion,
              Sybert was required to establish by clear and convincing evidence that Beilenson was aware of
27            the probable falsity of the statements and willfully directed the publication of the libel. (Garrison v.
              Louisiana (1964) 379 U.S. 64, 79 [13 L.Ed.2d 125].) Sybert charges that had Beilenson contacted
28            the FPPC he would have discovered that Sybert was in compliance with the law. „Failure to
     Special Motion to Strike-Schneider National, Inc., v Ellis - 15                    WALTER L. ELLIS
                                                                                   23485 Village Walk Pl., #218F
                                                                                       Murrieta, CA., 92562
1             investigate does not in itself establish bad faith.‟ (St. Amant v. Thompson, supra, 390 U.S. 727,
              733 [20 L.Ed.2d 262, 268]; Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1498-1499, 45
2             Cal.Rptr.2d 624.) The record here lacks evidence upon which a reasonable fact finder could find
              that Beilenson acted with the requisite malice.
3
                        “Sybert's declaration from a former commissioner of the FPPC was on information and
4             belief. „An averment on information and belief is inadmissible at trial, and thus cannot be used to
              show a probability of prevailing on the claim.‟ (Evans v. Unkow, supra, 38 Cal.App.4th at pp.
5             1497-1498, 45 Cal.Rptr.2d 624.)

6                      “Sybert also fails to make such a showing on the question of Beilenson's failure to obtain
              the consent of Ms. McClain-Hill. Sybert tendered a copy of a letter from her in which she stated
7             she did not recall authorizing the use of her name to attack Sybert. She denied knowledge of the
              statements or that she had authorized them. The letter is not a verified declaration under penalty
8             of perjury. Moreover it is contradicted by a sworn declaration from Rick Taylor, a Beilenson
              campaign worker. Taylor states that Ms. McClain-Hill had approved of the statements that were
9             attributed to her in the mailer. There was no showing by Sybert that Beilenson or any of his staff
              had actual malice--i.e., knowledge that her statements were false or unauthorized. Beilenson
10            reasonably relied upon Taylor's representation that he had obtained her authorization. (Reader's
              Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 258, 208 Cal.Rptr. 137, 690 P.2d 610.)
11
                       “Section 425.16 requires that Sybert demonstrate he would „probably‟ prevail in his
12            lawsuit. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824, 33 Cal.Rptr.2d 446.)
              Moreover, under the precept of New York Times and its progeny, Sybert was required to show a
13            likelihood that he could produce clear and convincing evidence of Beilenson's purported malice.
              (Robertson v. Rodriguez, supra, 36 Cal.App.4th at pp. 359-360, 42 Cal.Rptr.2d 464.) We
14            conclude that, in view of Beilenson's defenses under the Constitution, Sybert did not establish the
              probability that he would prevail in this lawsuit. The motion to dismiss should have been granted.
15
              Here, the statements relating to misconduct of Plaintiffs are not actionable. Furthermore, Plaintiffs
16
     cannot plead and prove that this Defendant defamed by the “clear and convincing evidence” standard. When the
17
     Plaintiffs filed this frivolous lawsuit, no more would he could rely on the standard used by the Hon. Jerome
18
                                              7
     Sheindlin, the Hon. Judith Sheindlin , the Hon. Mills Lane, the Hon. Roy Mathis, and the Hon. Joseph Brown, in
19
     their cases-the preponderance of the evidence standard. Furthermore, Plaintiffs are required to present prima
20
     facie evidence that they would prevail on the merits. That means Plaintiffs cannot rely anymore on “information
21
     and belief” as he relies on their vague Complaint. Evidence that is admissible at trial is the only evidence
22

23
     7
       This Judge also would have dismissed this case, because the Plaintiffs are nothing but crybabies. This is similar
24   to a case where one of this Defendant‟s friends who had seen one of Judge Judith Sheindlin‟s cases on Judge
     Judy live, where one plaintiff sued her employer for false imprisonment. The defendant cross-complained and
25   proved that plaintiff did the act in trying to choke the plaintiff. It does not matter what happened otherwise.
     Plaintiffs are a proverbial pain in the rear-end that is one step behind the Gestapo. In fact, this also relates to this
26   conversation about a detective who later got shot in retaliation of stabbing a mobster‟s car tires (From Episode 1,
     NYPD Blue):
27             ASSISTANT DISTRICT ATTORNEY SILVIA COSTAS, COUNTY OF NEW YORK: “…well, it would be res
     ipsa loquitor, if you know what that meant.”
28             DET. ANDY SIPOWICZ, NEW YORK POLICE DEPARTMENT: (grabbing his crotch) “Well, res ipsa this!”
     Special Motion to Strike-Schneider National, Inc., v Ellis - 16                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1    required for this hearing as well as the life of this lawsuit. Evans v. Unkow (1995) 38 Cal.App.4th 1490, 45

2    Cal.Rptr.2d 624, explains that:

3                       “The problem with this averment is that information and belief, within the context of a
              special motion to strike a SLAPP suit, is inadequate to show „a probability that the plaintiff will
4             prevail on the claim.‟ (Code Civ.Proc., § 425.16, subd. (b).) An assessment of the probability of
              prevailing on the claim looks to trial, and the evidence that will be presented at that time. (See
5             Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824, 33 Cal.Rptr.2d 446 [must be prima
              facie showing of facts which „if accepted by the trier of fact‟ would negate constitutional
6             defenses].) Such evidence must be admissible. (Id. at p. 830, 33 Cal.Rptr.2d 446.) As the court in
              Wilcox explained, the plaintiff's burden of establishing „facts to sustain a favorable decision if the
7             evidence submitted ... is credited‟ (Hung v. Wang (1992) 8 Cal.App.4th 908, 931, 11 Cal.Rptr.2d
              113) implies a requirement of admissibility, because „otherwise there would be nothing for the
8             trier of fact to credit.‟ (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 830, 33 Cal.Rptr.2d
              446.) At trial, „the testimony of a witness concerning a particular matter is inadmissible unless he
9             has personal knowledge of the matter.‟ (Evid.Code, § 702, subd. (a).) An averment on information
              and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim.
10
                      “This conclusion is validated by College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th
11            at page 720, 34 Cal.Rptr.2d 898, 882 P.2d 894, where the Supreme Court held that an affidavit in
              support of a motion to amend a complaint to state a punitive damages claim against a health care
12            provider under Code of Civil Procedure section 425.13 (see ante, fn. 1) must „set forth competent
              admissible evidence within the personal knowledge of the declarant.‟ If an averment on
13            information and belief is inadequate under Code of Civil Procedure section 425.13, it must
              likewise be inadequate under section 425.16, for the two statutes are substantially similar. (See
14            College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 719, 34 Cal.Rptr.2d 898, 882 P.2d
              894; Castro v. Higaki (1994) 31 Cal.App.4th 350, 358, fn. 8, 37 Cal.Rptr.2d 84.)
15
                      “Affidavits on information and belief are permitted „where the facts to be established are
16            incapable of positive averment‟ (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87,
              260 Cal.Rptr. 520, 776 P.2d 222), but that is not the case here. If the adversarial relationship
17            between Evans and Scherzer was, as Evans averred on information and belief, „common
              knowledge‟ in the community and public media, then Evans could have shown this by submitting
18            declarations to that effect by members of the community and evidence of specific news media
              exposure of that relationship (e.g., newspaper articles). He did not do so.
19
                       “Thus, while there was evidence of hostility between Evans and Scherzer, Evans failed to
20            establish, through competent admissible evidence within the personal knowledge of him or
              anyone else, that the defendants knew of such hostility. There was no prima facie showing of
21            constitutional malice consisting of obvious reasons for the defendants to doubt Scherzer's
              veracity.”
22

23            The Complaint pleads nothing that is substantive. Again, what we have is conjecture, guesses,

24   hyperbole, distortion, invective, tirades, speculation, and guilt by association. What we also have here is what

25   motivates Plaintiffs to file suit-money, malice, and scaring people into not exercising their constitutional rights.

26   Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464, also explains that:

27                    “Robertson does not dispute he is a public figure or that he is required to show actual
              malice. However, he avers that with knowledge of the terms of the civil compromise, Rodriguez
28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 17                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1             could not have printed in good faith the language in the mailer that Robertson was fined for
              running an illegal business out of his home.
2
                      “In approaching the issue of whether Robertson demonstrated the existence of a prima
3             facie case for libel, we bear in mind the higher clear and convincing standard of proof. (See
              Looney v. Superior Court, supra, 16 Cal.App.4th at pp. 538-539.)
4
                        “We further recognize that section 425.16, by requiring scrutiny of the supporting and
5             opposing affidavits stating the facts upon which the liability or defense is based, calls upon the
              plaintiff to meet the defendant's constitutional defenses, such as lack of actual malice. (§ 425.16,
6             subd. (b); Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824; New York Times Co., supra,
              376 U.S. at pp. 279-280; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 534, p. 622.)
7             [Footnote omitted.] This burden is „met in the same manner the plaintiff meets the burden of
              demonstrating the merits of its causes of action: by showing the defendant's purported
8             constitutional defenses are not applicable to the case as a matter of law or by a prima facie
              showing of facts which, if accepted by the trier of fact, would negate such defenses.‟ (Wilcox,
9             supra, at p. 824.)

10                    “Turning to the record, Rodriguez's declaration stated he became aware the City had
              brought a criminal prosecution against Robertson for running a business out of his home in
11            Cudahy in violation of City zoning laws. He asked Joseph, the city manager and city clerk, about
              the prosecution. Joseph advised Rodriguez that Robertson had paid the City $1,000 and had
12            agreed to move his business outside the City. Joseph also gave Rodriguez a copy of the $1,000
              cashier's check from Robertson to the City as well as a copy of the compromise agreement.
13            Given Joseph's statements to Rodriguez, which are uncontroverted, Robertson failed to make a
              prima facie showing Rodriguez accused him of running an illegal home business with actual
14            malice. As indicated, actual malice denotes either knowledge the publication was false or a
              reckless disregard of whether it was false. (New York Times Co. v. Sullivan, supra, 376 U.S. at
15            pp. 279- 280.) In view of what Rodriguez learned from Joseph regarding the matter, the mere fact
              the compromise agreement contained a boilerplate denial of wrongdoing, did not show Rodriguez
16            acted with actual malice in accusing Robertson of running an illegal home business.”

17
              In Robertson, Plaintiff and Cudahy City Councilman John O. Robertson was accused in a 1992 recall
18
     campaign of operating an illegal business. Robertson accused his fellow Councilmen of defaming him during the
19
     recall campaign, but he lost his libel suit, based on his lack of prima facie evidence. Here, the Plaintiffs either
20
     have paranoia, or an expensive appetite for lots of money and machisimo.
21
     IX. DEFENDANT’S USE OF THE “SCHNEIDER” TRADEMARK WAS ALSO PROTECTED BY THE FIRST
22
     AMENDMENT.
23
              Plaintiffs claim that when Defendant posted a copy of one of Schneider‟s letters, Plaintiffs elevated the
24
     letter as a dilution and defamatory use of Schneider‟s trademark. This is nothing more than a restatement of
25
     Plaintiffs‟ defamation cause of action. Defendant posted the letter under the fair use doctrine. Defendant was not
26
     going to build a warehouse terminal and call it “Schneider”. The trademark cause of action is nothing but
27
     derivative of the defamation cause of action.
28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 18                WALTER L. ELLIS
                                                                               23485 Village Walk Pl., #218F
                                                                                   Murrieta, CA., 92562
                                                                                            th
1             The case of Bosley Medical Institute, Inc., v. Kremer, 05 C.D.O.S. 2849 (9 Cir. 2005), states that:

2                      “As a matter of First Amendment law, commercial speech may be regulated in ways that
              would be impermissible if the same regulation were applied to noncommercial expressions.
3             Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). „The First Amendment may offer little
              protection for a competitor who labels its commercial good with a confusingly similar mark, but
4             trademark rights do not entitle the owner to quash an unauthorized use of the mark by another
              who is communicating ideas or expressing points of view.‟ Mattel, 296 F.3d at 900 (internal
5             quotation marks and citations omitted).

6             Here, Defendant was posting Schneider‟s letters to publicize Plaintiffs‟ misconduct. He was not starting

7    Schneider II. Clearly, Defendant was not engaging in commercial speech.

8    X. DEFENDANT’S TAPE-RECORDED CONVERSATIONS WERE SUBJECT TO BEING ABSOLUTELY

9    PRIVILIEGED.

10            The case of Ribas v. Clark (1985) 38 Cal.3d 355, 364-365, 212 Cal.Rptr. 143, 696 P.2d 637, explains

11   that:

12                      More difficult is the question whether plaintiff's recovery for the asserted violation of this
              state's criminal eavesdropping laws should also be thwarted by the section 47 privilege. Penal
13            Code section 637.2 provides that „[a]ny person who has been injured by a violation of‟ the Privacy
              Act may bring an action for $3,000 or three times his actual damages, whichever is greater. It
14            appears no case has ever considered the applicability of Civil Code section 47 to statutory
              causes of action. However, the purpose of the judicial proceedings privilege seems no less
15            relevant to such claims. Underlying the privilege is the vital public policy of affording free access
              to the courts and facilitating the crucial functions of the finder of fact. (Kachig v. Boothe, supra, 22
16            Cal.App.3d 626, 641.) „The resulting lack of any really effective civil remedy against perjurers is
              simply part of the price that is paid for witnesses who are free from intimidation by the possibility
17            of civil liability for what they say.‟ (Prosser, Law of Torts (4th ed. 1971) p. 778.) This policy is
              equally compelling in the context of common law and statutory claims for invasion of privacy;
18            there is no valid basis for distinguishing between the two. Certainly, nothing indicates that in
              enacting Penal Code section 637.2 the Legislature intended to immunize causes of action under
19            that statute from the traditional privileges applicable to various forms of oral evidence.”

20
              Here, Defendant was using his recorded conversations for litigation purposes, and that he also obtained
21
     permission from Plaintiff Ames, and Plaintiffs knew about it. Furthermore, Ames‟ privacy wasn‟t invaded. Plaintiff
22
     Ames conversations didn‟t relate to his personal life, but centered around Defendant‟s work with Plaintiffs.
23
     Nothing was done to get Plaintiff Ames‟ personal life on tape to be disseminated or otherwise.
24
                 XI. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND.
25
                       “And this is the writing that was written, MENE, MENE, TEKEL, UPHARSIN.
26                     “This is the interpretation of the thing: MENE; God hath numbered thy kingdom, and
              finished it.
27                     “TEKEL; Thou art weighed in the balances, and art found wanting.
                       “UPHARSIN; Thy kingdom is divided, and given to the Medes and Persians.” (Daniel
28            5:25-28)
     Special Motion to Strike-Schneider National, Inc., v Ellis - 19                   WALTER L. ELLIS
                                                                                  23485 Village Walk Pl., #218F
                                                                                      Murrieta, CA., 92562
1

2             The handwriting is obviously on the wall when all the Causes of Action for libel, defamation, unlawful use

3    of trademark, and unlawful tape recording utterly fail, because the Plaintiffs attacked this Defendant by BRUTE

4    FORCE, and this frivolous lawsuit. What‟s next? Subjecting Defendant and wife holding a tin cup begging for

5    money on Baseline and Waterman in San Bernardino? This case goes to the heart of the political process. This

6    is an illegal and unconstitutional censorship against Plaintiffs freedom of speech. The way the Complaint was

7    drafted shows that there is no way Plaintiffs can introduce prima facie evidence proving that they do not have the

8    probability to succeed. Plaintiffs have the probability to lose, and lose big.

9    XII. SANCTIONS ARE WARRANTED AS TO MAKE A HUGE PUBLIC EXAMPLE OF THE PLAINTIFFS WHO

10   CANNOT HANDLE LOSING.

11                     “If you can‟t stand the heat, get out of the kitchen”-President Harry S. Truman.

12            “Give „em hell, Harry”, or is this the scene where Bedford Falls, New York, becomes Pottersville? This

13   case would have not started if the Plaintiffs did not ASSAULT AND FALSELY IMPRISON Defendant in the first

14   place. This is like waking up one day and you see the case of Brown v. Board of Education overturned. This is

15   not a novel complaint, but a Complaint that was filed with very actual malice, filed in retaliation of Defendant

16   championing the rights of truck drivers, and absolutely filed with no legal or factual basis whatsoever. Since they

17   love money, power, and corporate greed, Alan Gecko-style, instead of God and the Constitution, these Gestapo-

18   style Plaintiffs must pay to play through their uppity noses. This Defendant has paid so far in defending himself to

19   preserve the Constitution, like soldiers who liberated Buchenwald, Dachau, and Iwo Jima, and the people who

20   fought for the rights of the people in Topeka, Philadelphia (Mississippi), Selma, Atlanta, Montgomery,

21   Birmingham, Memphis, etc.

22                       "Let freedom ring. And when this happens, and when we allow freedom ring—when we
              let it ring from every village and every hamlet, from every state and every city, we will be able to
23            speed up that day when all of God's children—black men and white men, Jews and Gentiles,
              Protestants and Catholics—will be able to join hands and sing in the words of the old Negro
24            spiritual: „Free at last! Free at last! Thank God Almighty, we are free at last!‟” Rev. Martin Luther
              King, “I Have a Dream”, March on Washington for Jobs and Freedom, August 28, 1963.
25

26            In addition, since Plaintiffs filed suit to intimidate this Defendant, this Defendant request that in addition

27   to costs, that the costs be doubled. The Plaintiffs are a detriment to society, and they are filing abusive lawsuits

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 20                   WALTER L. ELLIS
                                                                                  23485 Village Walk Pl., #218F
                                                                                      Murrieta, CA., 92562
1    to get America to move closer to the Soviet Union, Nazi Germany, or the Old South. This Complaint should

2    never be filed.

3                                                         XIII. CONCLUSION.

4             This Defendant requests that this lawsuit be dismissed without leave to amend, and that the Plaintiffs

5    pay double costs payable to this Defendant herein.

6

                                                                                   th
7                                                                      Dated this 20 day of October, 2009

8                                                                                          By:
                                                                                                 WALTER L. ELLIS
9                                                                                                23485 Village Walk Pl., #218F
                                                                                                 Murrieta, CA., 92562
10                                                                                               In Propia Persona.

11

12

13

14

15

16

17

18
                                               DECLARATION OF WALTER L. ELLIS.
19
              I, Walter L. Ellis, declare that:
20
              1. I am the Defendant in the above-entitled action. If I am called as a witness, which would be
21
                   unnecessary in this Action, I will competently and truthfully testify under oath.
22
              2. On January 12, 2009, I posted an article on http://www.truckerscomplaint.com/, my website
23
                   regarding SCHNEIDER‟S DOT and other violations.
24
              3. On January 13, 2009, I was advised by my dispatcher Jeff Ames that I couldn‟t be dispatched until
25
                   missing logs were submitted. Upon preparing these logs as other drivers are allowed to do so in the
26
                   lunch room, I was approached by Jeff and Luke Simendinger, Operation Manager and asked to
27
                   meet with them in their office. After it was agreed that it would be permissible for me to continue
28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 21                         WALTER L. ELLIS
                                                                                        23485 Village Walk Pl., #218F
                                                                                            Murrieta, CA., 92562
1                  taping the meeting I agreed to go to the administration area as asked. Luke had indicated that I was

2                  in violation regarding my logs, and my statement was that mine wasn‟t as bad as many of the other

3                  drivers who were correcting their logs at the facility and were doing so in the lunch room this date.

4                  Luke stated I was also in violation of company policy for soliciting other drivers with propaganda I

5                  was     accused      of    handing     out    to    other   drivers.   (Recordings    are   available   see:

6                  http://www.justiceforblacks.blogspot.com/)

7             4. Luke and Jeff led me to a room asked me to be seated, closed the door as they left the room. I later

8                  became concerned and decided to leave the room. Upon opening the door I was confronted by

9                  Brandon Trahulchavee who stated I must go back into the room. I asked if I was being arrested, and

10                 if so why was I being detained. When I attempted to go out the front door, Brandon grabbed the door

11                 handle with his left hand, while pulling me back inside while my right foot was outside the door.

12                 Brandon pulled my right arm with such force causing my rib to be broken. I also received injury to my

13                 right knee. Copies of my medical reports detailing my injuries are attached as Exhibit “A”.

14            5. After being injured and then fired by SCHNEIDER, I immediately called Fontana Police Department.

15                 After calling several times to report the crimes, and waiting over three hours at the truck stop across

16                 from SCHNEIDER I decided to go to the Fontana PD. After waiting at the PD for one and a half

17                 hours I gave my report to Officer LOSCH. I asked Officer LOSCH to take a complaint on False

18                 Imprisonment and Assault and Battery. I also offered the officer the tape recorder, which he refused.

19                 I have attempted to have Fontana PD to take a supplementary report regarding the Assault and

20                 False Imprisonment. After a back and forth conversation(s) by phone with Officer LOSCH and the

21                 Watch Commander it appeared that their main interest was more a concern with me taping their

22                 conversation illegally, than the crimes committed by SCHNEIDER. Upon asking Officer LOSCH to

23                 include false imprisonment charges he stated there was no grounds for false imprisonment because

24                 they had the right to hold me until I was officially fired. Officer LOSCH stated also that they had

25                 stated they were holding me because they were afraid that if they had not fired me before I left the

26                 building they were fearful that I might fake an injury in order to file a worker‟s compensation claim.

27                 (See above recordings). Officer LOSCH and the Watch Commander state they are not going to

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 22                       WALTER L. ELLIS
                                                                                      23485 Village Walk Pl., #218F
                                                                                          Murrieta, CA., 92562
1                  report my complaint to the DA‟s office of false imprisonment due to SCHNEIDER‟s statements. I was

2                  also told on January 26, 2009 by Officer LOSCH that he had been advised by Brandon that he had

3                  not touched me as I had accused. Officer LOSCH stated he was unable to find any witness to the

4                  crime. Officer LOSCH went on to say that I had made a statement on January 13, 2009, that there

5                  was no witness. I disagreed with my making such a statement and asked Officer LOSCH and the

6                  Watch Commander to review the tape of the interview of my complaint. Officer LOSCH also stated

7                  that he wasn‟t going to take any further complaints, and if I wished to add any other information the

8                  DA‟s office have many investigators to take my complaints. I later contacted a Ms. GUILLE at 909-

9                  355-5935 at the San Bernardino County DA‟s office who stated Officer LOSCH was incorrect in

10                 making such a statement and any supplement report must be made by the Fontana PD.

11                 Based on Officer Frank LOSCH‟s handling of this complaint I ask that a discrimination charge be

12                 placed in his records, and request that I be issued all the appropriate documents to file my complaint

13                 against this officer and the Fontana PD.

14            6. Since the Spring of 2009, Plaintiffs filed and served this Action against me. They are clearly afraid of

15                 being exposed. The reason why they filed this suit is because not only they wanted to diminish my

16                 worker‟s compensation claim, but they wanted to prevent me from filing my own suit for:

17                 a. Discrimination under Title VII of the Civil Rights Act of 1964.

18                 b. Discrimination under the Fair Employment and Housing Act.

19                 c.   42 U.S.C., §1981.

20                 d. Discrimination under the Americans with Disabilities Act.

21                 e. Emotional Distress.

22                 f.   Assault.

23                 g. Failure to pay wages.

24                 h. Civil Conspiracy.

25                 i.   Unfair Competition.

26            7. As for Unfair Competition, I also used my websites to detail violations of Federal Transportation laws

27                 and regulations by Schneider.

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 23                  WALTER L. ELLIS
                                                                                 23485 Village Walk Pl., #218F
                                                                                     Murrieta, CA., 92562
1             8. In order to present my arguments on my websites against the trucking companies, like Schneider‟s

2                  and their wrongful acts, to include termination my friends and I intend to get subpoenas, for the list of

3                  witnesses and affidavits. These additional witnesses would be giving information regarding log book

4                  violations created by Schneider.         My friends and I need them to make a statement saying that

5                  Schneider systematically asks the drivers to violate the 14 hour duty service regulation. These

6                  violations are created by servicing the truck, doing paperwork, fueling, short circuiting pre-trips and

7                  trip planning required by Schneider and other requirements that are required by DOT before logging

8                  on duty. These violations include falsifying breaks when in fact you are on duty assisting in

9                  unloading freight. Trips are planned based on 50 miles per hour time frames from point A to point B

10                 whether mountainous road conditions and unknown factors are not accounted for. These violations

11                 are known by Schneider. Standby pay is promised in writing by Schneider and paid to some drivers

12                 and not to others. Drivers are encouraged to sleep in their trucks at the terminal without pay to be

13                 available for loads .Drivers that do not sleep at the terminals are denied loads and revenue. The

14                 yard has unsanitary conditions that create health hazards for the drivers. California doesn't allow

15                 trucks to idle more than 5 minutes for purposes of heat and air conditioning in the cab, although

16                 Schneider‟s supervisors ignore this particular violation. Schneider pays some drivers and do not pay

17                 other drivers for cleaning dirty trucks that prior drivers have left filthy and the cleaning is made to be

18                 done while on duty but not logged as required by DOT.         Each driver should be paid back pay and

19                 other penalties for these past and present violations.

20            9. Some days, I feel like Meryl Streep in “Silkwood”, but yet these Federal laws and regulations should

21                 not be happening in the first place, and that we also need the right to unionize and the right to

22                 universal health care.

23            10. This Action is filed primarily to scare, intimidate, and threaten me into not freely exercising our First

24                 and Fourteenth Amendment rights, i. e.:

25                 a. Publishing on my websites.

26                 b. Speaking out against companies, like Schneider, who treat minorities like dirt, and gut them, and

27                     spit them out after they are through using their workers.

28
     Special Motion to Strike-Schneider National, Inc., v Ellis - 24                    WALTER L. ELLIS
                                                                                   23485 Village Walk Pl., #218F
                                                                                       Murrieta, CA., 92562
1             11. There is no charging allegations in the Action that alleges what I have said that is defamatory, or on

2                  what date(s) did I supposedly defame Schneider.

3             12. To this date, I have incurred the following expenses so far in defending myself to preserve my

4                  pocket, my liberties, and the Constitution (and I request that these costs be doubled), like soldiers

5                  who liberated Buchenwald, Dachau, and Iwo Jima, and the people who fought for the rights of the

6                  people in Topeka, Philadelphia (Mississippi), Selma, Atlanta, Montgomery, Birmingham, Memphis,

7                  etc. These include the:

8             a. First appearance Fee:

9             b. Motion fees for Special Motion to Strike.

10            I declare under penalty of perjury under the laws of the State of California that the foregoing is true and

11   correct, and that this declaration was executed on October 20, 2009, at Murrietta, California.

12

13                                                           ___________________________________________________
                                                             WALTER L. ELLIS,
14                                                           Declarant.

15

16

17

18
                                                         PROOF OF SERVICE.
19
              I, Ella M. Ellis, am a resident of the County of Riverside, State of California. I am over the age of 18
20
     years, and I am not a party to this action. My address is 23485 Village Walk Pl., #218F, Murrieta, CA., 92562.
21
              On October 20, 2009, I served the foregoing copies of NOTICE OF SPECIAL MOTION TO STRIKE
22
     COMPLAINT OF PLAINTIFFS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF,
23
     AND DECLARATION OF WALTER L. ELLIS on the interested parties in this action by placing the following true
24
     copies, enclosed in a sealed envelope addressed as follows:
25
     CHRISTOPHER S. MAILE
26   NORMAN L. PEARL
     DAVID S. BINDER
27   THARPE & HOWELL
                         TH
     15250 VENTURA BL., 9 FLOOR
28   SHERMAN OAKS, CA., 91403-3221
     Special Motion to Strike-Schneider National, Inc., v Ellis - 25                WALTER L. ELLIS
                                                                               23485 Village Walk Pl., #218F
                                                                                   Murrieta, CA., 92562
1

2             On the above date, I personally mailed copies to the addressees at the United States Post Office at

3    Murrieta, California.

4             Under the penalty of perjury, I declare that the foregoing is true and correct, and that this declaration was

5    executed on October 20, 2009, at Murrieta, California.

6

7                                                            ___________________________________________________
                                                             Declarant.
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     Special Motion to Strike-Schneider National, Inc., v Ellis - 26                 WALTER L. ELLIS
                                                                                23485 Village Walk Pl., #218F
                                                                                    Murrieta, CA., 92562

				
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