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NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

8 9 10 WANXIA LIAO, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. / 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Now before the Court for consideration is the Motion to Declare Plaintiff a Vexatious Litigant, filed by the United States. On April 3, 2012, Plaintiff, Wanxia Liao (Liao), requested that the Court decide the motion on the papers. Because the Court found the motion suitable for disposition without oral argument, the Court granted her request and vacated the hearing on this motion. The Court has considered the parties papers, relevant legal authority, and the record in this case and in other cases filed by Liao, and for the reasons set forth in the remainder of this Order, the Court HEREBY GRANTS the United States motion. The Court, however, finds the United States proposed pre-filing requirements overbroad. ANALYSIS The All Writs Act, 28 U.S.C. 1651(a), provides district courts with the inherent power to enter pre-filing orders against vexatious litigations. However, such pre-filing orders are an extreme remedy that should rarely be used. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (internal citations omitted). Before it grants a request for a No. C 11-02494 JSW ORDER GRANTING UNITED STATES MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND INSTRUCTIONS TO CLERK RE SAME

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prefiling review order, a court should: (1) give the litigant adequate notice and an opportunity to be heard; (2) compile an adequate record for review; (3) make substantive findings as to the frivolous or harassing nature of the litigants actions; and (4) narrowly tailor the order to closely fit the specific vice encountered. Id. (quoting DeLong v. Hennessey, 912 F.2d 1144, 1145-48 (9th Cir. 1990)). 1. Notice and Opportunity to Be Heard on the Motion.

Pursuant to Molski and DeLong, before a party can be declared a vexatious litigant, that party must have notice and an opportunity to be heard. The United States motion provided Liao with notice of the basis of the request to declare her a vexatious litigant. The Court provided her with ample time to file her written opposition to the motion. In addition, this Court was fully prepared to accommodate Liao, who resides in Canada, by holding the hearing on the motion by telephone. However, three days before the scheduled hearing, Liao asked that the Court resolve the matters on the papers, citing various reasons why it would be too difficult for her to participate in oral argument. The Court granted that request. Thus, Liao also has had an adequate opportunity to be heard on the motion. See Molski, 500 F.3d at 1058-59 (Molski had fair notice of the possibility that he might be declared a vexatious litigant ... because the district courts order was prompted by a motion filed by the defendants and served on Molskis counsel. Also, Molski had the opportunity to oppose the motion, both in writing and at a hearing.); cf. Pacific Capital Harbor, Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (imposing sanctions against attorney and holding that evidentiary and oral hearing is not necessary to satisfy opportunity to be heard requirement). 2. Record for Review.

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The second requirement under Molski and DeLong is that a court compile an adequate record for review, i.e. a listing of all the cases and motions that lead the district court to conclude that a vexatious litigant order was needed. Molski, 500 F.3d at 1059 (quoting DeLong, 912 F.2d at 1147). As set forth in the Courts Order, issued this date, granting motions to dismiss filed by the United States, CNN and Dow Jones, this litigation stems from a dispute over a term paper, which prompted Liao to file a complaint with the Ontario Human Rights 2

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Commission (OHRC), which then led Liao to file a complaint in San Francisco Superior Court against James Cahill and the University of California at Berkeley, captioned Liao v. Cahill, No. CGC-02-407761 (the original Cahill litigation). (See Docket No. 70, Declaration of Victoria R. Carradero (Carradero Decl.), 3-6, Exs. 1-4.) That court ultimately sustained the defendants demurrers without leave to amend and dismissed the case with prejudice. Liao unsuccessfully attempted to get the court to revisit certain orders in that case. (Id.; see also Carradero 7, Ex. 5.) She appealed, but the Court of Appeal granted the respondents motion to dismiss the appeal. (Id., 8, Ex. 6.) On March 4, 2004, Liao filed a complaint against Michael Laurensen, who represented Mr. Cahill in the original Cahill litigation, and the San Francisco Superior Court, captioned Liao v. San Francisco Superior Court, No. CGC-04-429421 (the Laurensen litigation). In that case, Liao asserted that the orders sustaining demurrers and the judgment in the Cahill litigation should be declared void. (Carradero Decl., 9-11, Exs. 7-9.) Liao also alleged that Mr. Laurenson had made fraudulent statements to the court and that the court acted improperly when it entered orders and dismissed the original Cahill litigation. (See, e.g., Carradero, Ex. 8 at 4-22.) The court sustained defendants demurrers, without leave to amend, and it also granted a motion declaring Liao a vexatious litigant. When Liao failed to post the required security to pursue the case, the court entered an order of dismissal and judgment. Liao also filed several motions, in which she asked the court to reconsider earlier orders. (Id., 9, 12-13, Exs. 7, 10-11.) Liao also was unsuccessful in her efforts to appeal those rulings. (Id. 14-15, Ex. 13.) See also Liao v. Laurenson, 2005 Cal. App. Unpub. LEXIS 5029 (Cal. App. June 9, 2005).1 On June 23, 2003, Liao filed her first lawsuit in this District, Liao v. Cahill, No. 03-cv2906-SBA (the second Cahill litigation). (Carradero Decl., 16, Ex. 14 (Docket Sheet)) Judge Armstrong presided over that case, and she ultimately dismissed it and denied several motions for relief from judgment. (Id.; see also id. 17, Ex. 15.) Liao also appealed orders

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This opinion is attached as Exhibit 12 to the Carradero Declaration. 3

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issued in the second Cahill litigation, but the Ninth Circuit dismissed the appeals for failure to prosecute. (Id., 19-20, Exs. 17-18.) On May 9, 2005, Liao filed her second lawsuit in this District, Liao v. Quidachay, No. 05-cv-1888-CW (the Quidachay litigation). (Id., 21-22, Exs. 18-19.) In the Quidachay litigation, Liao alleged, inter alia, that the defendants engage[d] in a cover up and sabotaged the original Cahill litigation. She also claimed that the defendants violated her rights to due process, equal protection and access to the courts. (See, e.g., Carradero Decl., Ex. 19 (First Amended Complaint, 5).) Ultimately, the court dismissed the Quidachay litigation. Liao also filed three motions in that case, in which she asked Judge Wilken, who was presiding over the case, to recuse herself. The court also denied those motions. (Id. 21, Ex. 18.) See also Liao v. Quidachay, 2005 U.S. Dist. LEXIS 42097 (N.D. Cal. Oct. 12, 2005); Liao v. Quidachay, 2006 U.S. Dist. LEXIS 81094 (N.D. Cal. Oct. 25, 2006); Liao v. Quidachay, 2007 U.S. Dist. LEXIS 8060 (N.D. Cal. Jan 24, 2007); Liao v. Quidachay, 2007 U.S. Dist. LEXIS 30825 (N.D. Cal. April 11, 2007).2 Liao appealed orders issued in the Quidachay litigation. However, the Ninth Circuit dismissed those appeals for lack of jurisdiction and for failure to prosecute. The Supreme Court also denied Liaos petition for a writ of certiorari. (Carradero Decl., 27-31, Exs. 25-29.) On June 4, 2008, Liao filed her third lawsuit in this district, Liao v. Ashcroft, 08-cv2776-PJH (the Ashcroft litigation). (Id., 32-34, Exs. 30-32.) Liao named as defendants, among others, former Attorney Generals John Ashcroft and Roberto Gonzales, Robert Mueller, Director of the Federal Bureau of Investigation, the San Francisco Superior Court, Mr. Laurenson, and Judges Armstrong and Wilken, and CNN. Liao described the nature of the action as a constitutional, civil, and human rights case challenging the racially motivated refusals by United States government and California officials to investigate my criminal complaints, and the conspiracy by federal justice administrative officials with the US major media to place a secret prior restraint on my Internet free speech about my human rights case without due process of law in purpose to cover up my human rights cases against the US, etc.
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These orders are attached as Exhibits 21-24 to the Carradero Declaration. 4

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(Carradero Decl., Ex. 32 (First Amended Complaint, 1).) Judge Armstrong initially presided over the Ashcroft litigation, and Liao moved to disqualify her on the basis that she had presided over the second Cahill litigation. Judge Armstrong denied that motion and issued an order admonishing Liao to serve the defendants. See Liao v. Ashcroft, 2008 U.S. Dist. LEXIS 103251 (N.D. Cal. Dec. 22, 2008).3 Thereafter, Liao amended the complaint to include Judge Armstrong as a defendant, and filed additional motions seeking to disqualify Judge Armstrong. Judge Armstrong eventually recused herself from the case, and the Ashcroft litigation was reassigned to Judge Hamilton. (See Carradero Decl., 32, Ex. 30.) On March 11, 2009, Judge Hamilton issued an order dismissing the claims against many of the defendants, on the basis that Liao had not properly served them. Judge Hamilton also granted CNNs motion to dismiss, with leave to amend, on the basis that Liao had not alleged facts to show that CNN was a state actor and, thus, Liao failed to state a claim under 42 U.S.C. 1983. Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 23741 (N.D. Cal. Mar. 11, 2009); Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 23410 (N.D. Cal. Mar. 11, 2009).4 Liao also filed several motions seeking relief from Judge Hamiltons orders and asked Judge Hamilton to recuse herself. (Carradero Decl., 32, Ex. 30.) See also Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 36197 (N.D. Cal. April 16, 2009).5 Judge Hamilton also: granted Judge Armstrongs motion to dismiss, with prejudice, on the basis that she was absolutely immune from suit; dismissed, with prejudice, claims against U.S. House of Representative Christopher Smith; and dismissed, with prejudice, the claims against CNN because Liao failed to amend her complaint. See Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 37537 (N.D. Cal. April 21, 2009).6 Judge Hamilton granted Deputy A.G. Yu, motion to dismiss, with prejudice, on the basis that, inter alia, she too was immune from suit. Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 41901 (N.D.

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This order is attached as Exhibit 33 to the Carradero Declaration. These orders are attached as Exhibits 34 and 35 to the Carradero Declaration. This order is attached as Exhibit 36 to the Carradero Declaration. This order is attached as Exhibit 37 to the Carradero Declaration. 5

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Cal. May 15, 2009).7 Liao also filed a notice of appeal, but the Ninth Circuit dismissed for failure to prosecute. (Carradero Decl., 41-42, Exs. 39-40.) On May 23, 2011, Liao filed the original complaint in this action. The procedural history and factual background pertaining to this case are set forth in the Courts Order granting motions to dismiss filed by CNN, Dow Jones & Company, Inc. (Dow Jones), and the United States, issued this date. The Court has considered the United States declaration and request for judicial notice, which provides the listing, set forth above, of Liaos state court complaints, the three earlierfiled actions District, and the case at bar. The Court concludes that there is an adequate record for review. 3. The Frivolous or Harassing Nature of Liaos Actions.

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The third factor set forth by De Long gets to the heart of the vexatious litigant analysis, inquiring whether the district court made substantive findings as to the frivolous or harassing nature of the litigants actions. Molski, 500 F.3d at 1059 (quoting De Long, 912 F.2d at 1148, in turn quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)) (internal quotation marks omitted). In order to make this determination, the Court looks at the number of filings as well as the content of those filings. Id. (citing DeLong, 912 F.2d at 1148; Powell, 851 F.2d at 431). An injunction cannot issue merely upon a showing of litigiousness. The plaintiffs claims must not only be numerous, but also be patently without merit. Id. (quoting Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). Liao argues that the United States exaggerates the number of cases that are pending. According to Liao, her two state cases and two of her four federal cases were dismissed because of purported frauds and conspiracies among the defendants in those cases. Thus, according to Liao, the judgments in those cases should be considered null and void. (See Docket No. 78 (Opp. Br. at 2:18-3:2).) Liaos argument does not aid her cause, and the Court finds it entirely unpersuasive.

This order is attached as Exhibit 38 to the Carradero Declaration. 6

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As set forth above, Liao has demonstrated a pattern of filing a new case or adding new defendants to an existing case when she obtains unfavorable outcomes. Liao also continues to name judges and court employees as defendants, in spite of the fact that courts have dismissed those claims on the basis of judicial immunity and in spite of the fact that courts have rejected her arguments that the judicial defendants acted in excess of their jurisdiction. See, e.g, Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 37537 (N.D. Cal. April 21, 2009); Liao v. Quidachay, 2005 U.S. Dist. LEXIS 42097 (N.D. Cal. Oct. 12, 2005). Liaos actions in this case are consistent with this behavior. For example, when Judge Alsup denied her request to appear by telephone, she added him as a defendant. Similarly, Liao attempts to bring an independent action to obtain relief from the judgment in the Ashcroft litigation, and she alleges that the Clerk of Court of the Ninth Circuit Court of Appeals was responsible, at least in part, for the dismissal of the appeal in the Ashcroft litigation. In addition, Liao has been warned in the past about the rules regarding service. Indeed, Judge Hamilton dismissed many of the defendants in the Ashcroft litigation on the basis that Liao failed to properly serve them under Federal Rule of Civil Procedure 4. Liao received similar warnings in this case but still failed to properly serve the defendants. The Court has carefully considered the materials submitted by the United States, documenting the number and nature of Liaos filings in state court and in this Court, and it concludes that Liao is more than just litigious. Rather, her conduct has become harassing and her claims are frivolous. 4. Narrowly Tailored Order.

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The fourth and final factor in the De Long standard is that the pre-filing order must be narrowly tailored to the vexatious litigants wrongful behavior. Molski, 500 F.3d at 1061. The United States asks that the Court require Liao to make an application to the undersigned judge or another judge designated by the Chief Judge of the Northern District of California for review. The Court finds that this request is appropriate, and it shall set forth the specifics of this order below.

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The United States also suggests that the Court require Liao to include with a proposed filing evidence that supports the allegations and the propriety of the proposed filing. The United States also asks that the Court order Liao to send her application and proposed filing by overnight mail to any defendant named in the action, who would then be given an opportunity to respond. Finally, the United States asks that the Court to preclude Liao from proceeding in forma pauperis. The Court finds that these requests are overbroad, unworkable and likely to spawn further litigation, a result the United States seeks to avoid. Therefore, the Court shall not include these requirements in its order. CONCLUSION For the foregoing reasons, the Court GRANTS the United States motion to declare Plaintiff, Wanxia Liao, a vexatious litigant. The Clerk of this Court may not file or accept any further complaints filed by or on behalf of Wanxia Liao that names any of the defendants named in this case or in Liao v. Cahill, No. 03-cv-2906-SBA; Liao v. Quidachay, No. 05-cv-1888-CW, or Liao v. Ashcroft, 08-cv-2776-PJH. The Clerk also shall not accept any further complaints filed by or on behalf of Wanxia Liao that arise out or relate to claims asserted in this case or any of those actions. If Ms. Liao wishes to file a complaint, she must submit a copy of her proposed complaint, a letter requesting that the complaint be filed, and a copy of this Order, to the Clerk of this Court. The Clerk shall then forward the letter, the complaint, and a copy of this Order to the General Duty Judge for a determination whether the complaint should be accepted for filing. If the General Duty Judge is a judge that has been previously named as a defendant in these cases, the Court recommends that the General Duty Judge direct that the request for prefiling review be randomly assigned to another District Judge. Any action filed in contravention of this Order will be subject to dismissal. IT IS SO ORDERED. Dated: April 16, 2012 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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