Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 133

DECLARATION of Daniel F. Blackert in Further Support of MOTION for Leave to file Second Amended Complaint 116 filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Attachments: # 1 Exhibit A (July 30, 2010 email), # 2 Exhibit B (August 14, 2010 email), # 3 Exhibit C (August 18, 2010 email))(Blackert, Daniel)

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Asia Economic Institute et al v. Xcentric Ventures LLC et al Doc. 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL F. BLACKERT, ESQ., CSB No. 255021 LISA J. BORODKIN, ESQ. CSB No. 196412 Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone (310) 806-3000 Facsimile (310) 826-4448 Attorneys for Plaintiffs, Asia Economic Institute LLC Raymond Mobrez, and Iliana Llaneras UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) XCENTRIC VENTURES, LLC, an Arizona LLC, d/b/a as BADBUSINESS ) ) BUREAU and/or ) BADBUSINESSBUREAU.COM ) and/or RIP OFF REPORT and/or ) RIPOFFREPORT.COM; BAD ) BUSINESS BUREAU, LLC, organized ) ) and existing under the laws of St. Kitts/Nevis, West Indies; XCENTRIC ) an individual, and DOES 1 through 100, ) ) inclusive, ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Defendants. Case No.: 2:10-cv-01360-SVW-PJW SUPPLEMENTAL DECLARATION OF DANIEL F. BLACKERT IN FURTHER SUPPORT OF PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Declaration of DFB- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Daniel F. Blackert, declare under penalty of perjury as follows: 1. My name is Daniel Blackert. I am a United States Citizen, a resident of the State of California, am over 18 years of age, and if called to testify in Court or other proceeding I could and would give the following testimony which is based upon my own personal knowledge unless otherwise stated. 2. I am an attorney licensed to practice law in the State of California. I am an active member, in good standing, of the State Bar of California and also admitted to practice in this Honorable Court. 3. Since December 2009, I have been employed by Asia Economic Institute as its attorney for this matter. My co-counsel in this case is Lisa J. Borodkin. I have been involved in the litigation since its inception. I have possession of Plaintiffs' files with respect to this case, and I am personally familiar with its contents. 4. I make this Declaration to clarify a point made in Defendants' Response to Plaintiffs' Motion to File a Second Amended Complaint [DN-129], contending that Plaintiffs did not make efforts to comply with Local Rule 7-3 regarding this motion. 5. On July 30, 2010, in an email correspondence to me and Ms. Borodkin, Defense counsel Ms. Maria Crimi Speth (Attorney Speth) instructed us not to speak with Defense counsel Mr. David Gingras any more; but to speak directly to her and not Attorney Gingras. In her email which is attached hereto as EXHIBIT "A," Ms. Speth states, "I am once again asking that you direct your communications to me. If you attempt again to speak with David about such matters, he will simply refer you to me." 6. Further, on July 20, 2010, while at the Law Offices of Jaburg & Wilk, Ms. Speth went into a long detailed discussion that if we amended the case in such as way that Attorney Gingras became a fact witness, when she sued Declaration of DFB- 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 me and Ms. Borodkin the attorneys' fees necessary to settle the case would increase because Attorney Gingras was no longer working on the case. Attorney Speth was making the point that her hourly rate is more than Attorney Gingras' hourly rate. It appeared that she was threatening us with this price increase. In summary, she told us not to deal with Attorney Gingras anymore as she advised us he had no authority and that she was taking over. 7. On August 14, 2010, I sent Attorney Speth an email with the subject line "meet and confer." My email was very clear, it stated that I was attempting to meet and confer with her regarding the issues that she now claims I did not properly meet and confer on. I outlined the seven (7) issues that I wished to discuss with her. I advised her that I was available at her convenience during the next few days. A true and correct copy of my email is attached hereto as EXHIBIT B. I then called her office but decided not to leave a message because I know Attorney Speth has responded to past emails on weekends and uses a cell phone. For example, during the Deposition of Mr. Magedson, Attorney Speth actually stood in the room while the deposition was being conducted and talked on her cell phone during the deposition. 8. I made it very clear in my August 14, 2010 email that I was available almost any time. I assumed that she would have the courtesy to meet and confer with me; instead she did not. Attorney Speth must have received my email and can not now claim any kind of prejudice. Previously, in our dealings with Mr. Gingras he has refused to meet and confer upon written request. 9. It is true that I misspoke in my August 16, 2010 Declaration at Paragraph 5 [DN-114] when I said I had met and conferred with Defendants on this motion. I promptly corrected that misstatement in the actual Notice of Motion filed with this Motion for Leave to Amend to state truthfully that I had made a written request for a conference on August 14, 2010, to which Defendants did not respond. DN-116 at 3:11-13. Declaration of DFB- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. In fact, Defendants did not contact Plaintiffs in any way whatsoever until August 18, 2010, when Ms. Speth telephoned my co-counsel, Ms. Borodkin to request a meet and confer for Defendants' proposed Motion to Strike. We attempted at that time to meet and confer with Ms. Speth on this Motion for Leave to Amend in the hope of taking it off calendar, but she stated it was "too late." True and correct copies of the confirming correspondence I sent to Defendants' counsel regarding the August 18, 2010 Local Rule 7-3 teleconference are attached hereto as Exhibit "C." 11. Defendants have previously stalled and refused to conduct meet and confer conferences under Local Rule 7-3 to Plaintiffs' prejudice. Defendants' unreasonable refusal to conduct conferences under Local Rule 7-3 in the past without imposing written preconditions is the subject of a pending motion, which has been referred to the Magistrate assigned to this case. 12. Moreover, it should be noted that Defendants' Motion to Dismiss [DN-110] complied with even fewer formalities under Local Rule 7-3 than any motion of Plaintiffs. Defendants did not meet and confer with Plaintiffs in an attempt to eliminate issues prior to filing the Motion to Dismiss; in fact did not file a Notice of Motion at all with the Motion to Dismiss; and did not include any version of the statement required by Local Rule 7-3. 13. While Plaintiffs have extended and continue to extend every civility to Defendants -- preferring to focus on the merits -- Defendants' characterizations of Plaintiffs' conduct do merit this response and clarification. Defendants have demanded that Plaintiffs withdraw certain allegations under pain of a request for Rule 11 sanctions, yet refuse to stipulate to an amendment that would permit Plaintiffs to accommodate Defendants' demand. Pursuant to 28 U.S.C. Section 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Declaration of DFB- 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXECUTED ON: August 31, 2010 /s/Daniel F. Blackert Daniel F. Blackert, Esq. Declaration of DFB- 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I certify that on August 31, 2010 I electronically transmitted the attached document as well as the document "Plaintiffs' Opposition to Defendant's Motion to Strike" to the Clerk's Office using the CM/ECF system for filing, and for transmittal of a Notice of Electronic Filing, to the following CM/ECF registrants: David S. Gingras Gingras Law Office, PLLC 4072 E. Mountain Vista Drive Phoniex, AZ 85048 Attorney for Defendants Maria Crimi Speth Jaburg & Wilk, PC 3200 N. Central Ave. Suite 2000 Phoenix, AZ 85012 Paul S. Berra Law Offices of Paul S. Berra 1404 3rd Street Promenade Suite 205 Santa Monica, CA 90401 With chambers' copies to Honorable Stephen V. Wilson U.S. District Judge United States District Court, Central District of California Western District 312 N. Spring Street Los Angeles, CA 90012 /s/Lisa J. Borodkin Declaration of DFB- 6

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