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

Filing 149

DECLARATION of David Gingras In Support Of MOTION for Summary Judgment as to Entire Case 145 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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

Doc. 149

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: [phone] Fax: [phone] [e-mail] Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DAVID S. GINGRAS
CV10-01360 SVW
Dockets.Justia.com

ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants.

Case No: 2:10-cv-01360-SVW-PJW DECLARATION OF DAVID S. GINGRAS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Hearing Date: Nov. 1, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson)

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

I, David S. Gingras declare as follows: 1. My name is David Gingras. I am a United States citizen, a resident of the

State of Arizona, am over the age of 18 years, 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 States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and California and I am admitted to practice and in good standing with the United States District Court for the District of Arizona and the United States District Court for the Northern, Central, and Eastern Districts of California. 3. Since July 2009, I have been employed as General Counsel for Plaintiff

Xcentric Ventures, LLC. In my capacity as counsel for Xcentric Ventures I have been involved in the litigation of this action since its inception. I have possession of

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Xcentric's files relating to this case, and I am personally familiar with the contents thereof. 4. On May 7, 2010, I took the deposition of Plaintiff Raymond Mobrez in Los

Angeles, California. Attached hereto as Exhibit A is a true and correct copy of portions of the condensed transcript from Mr. Mobrez's deposition which has been highlighted to identify certain portions of testimony as set forth in Defendants' Separate Statement of Facts In Support of Defendants' Motion for Summary Judgment. Exhibit A also

includes true and correct copies of certain exhibits to Mr. Mobrez's deposition which reflect the same exhibit identifiers as were used during the course of the deposition. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED ON: September 27, 2010. /S/David S. Gingras David S. Gingras

2 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

CERTIFICATE OF SERVICE I hereby certify that on September 27, 2010 I electronically transmitted the attached document 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: Mr. Daniel F. Blackert, Esq. Ms. Lisa J. Borodkin, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs

And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge

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/s/David S. Gingras

3 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW

Exhibit A

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., ) ) ) Plaintiffs, ) ) v. ) ) XCENTRIC VENTURES, LLC, et al., ) ) Defendants. ) ___________________________________)

Case No.: 2:10-CV-01360SVW-PJW

DEPOSITION OF RAYMOND MOBREZ Los Angeles, California May 7, 2010

Reported by: Yaelle Daneshrad CSR No. 11754

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fact? A Basic information. Q It's common knowledge, then? A Yes. Q Okay. Do you, do you know any witness who will testify that Mr. Magedson or anyone associated with Xcentric Ventures wrote the title that you've marked on Exhibit 1A or any of the other titles in any of the other exhibits about AEI? A Well, if you have a -- you can design your website that the party can go and put a subject matter, and then you will post the other things. When you do that, then you have a -- you are creating a -- you are the one who are putting this up to the website. They are not the one they are putting on the website. Q When you say "they," you mean the author? A Author. Author is only can do is to fill in the forms and the blanks that you have -- you provided. They do not have access to your technology, how that -Q The code? A Exactly. Q Right. But the actual information that appears on that line, don't you agree that that 98
originated with the author? Not Ed Magedson or Xcentric? A I don't know that. Q You don't know either way? A Yes. Q Okay. A All I can tell you, it's there. Q It is there. I agree with you. Let's look at paragraph, subparagraph D of paragraph 22 on page 10 of your complaint, which is Exhibit 10. A Okay. Paragraph D on page 10. Q Again, you appear to be alleging there that defendants create meta tags for reports which make those reports rank higher on search engines and then there's, there's some additional claims there. The last sentence looks like it says "Defendants author and use these so-called meta tags in violation of Google's terms of service." What is your factual basis for making that allegation? A Google, I contacted them. Q Did you? A Yes. And -Q When did you do that? A I believe in March of 2009.

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Q Okay. A They believe in that they are -- have nothing to do with what the content and the way it's coming from Ripoff Report to them. They asked me to contact back again with Ripoff to take this down. Q Did anybody at Google tell you that Ripoff Report was violating Google's terms of service? A I don't know -- I'm sure there is some letter or e-mail has been exchanged between me and Google. Q Did you -- you corresponded with them via e-mail? A I think it's a letter. Q In a written letter? A Letter. Q And did you get a written response? A I believe some response came in. But when I called, they are the one they were saying that, this is basically he was saying, if they are doing this, which they are doing this, violating our terms of services. Q In what way does creating meta tags violate Google's terms of service? What terms of service are you referring to? A Well, I'm not an expert, but I know just a 100
common knowledge that by creating a -- you're taking somebody's good name or at least a name that is attractive to the web and using that to your website to go up, pulling you up there. For example, I, somebody will write "'Westlaw' is terrible." Westlaw is on top of search engine. And it's always, it's people that are in it and that demands highest as possible. And somebody like Ripoff is using this methodology or the name to pull their name up. It's basically meta tag or, in a way, linking to that particular name or, or the phrase or whatever it is. Q I don't have a clue if that was responsive to what I asked you but -A I apologize. Q No, it's okay. Some of this is a little complicated. I get that. But what evidence do you have that Ed Magedson or Xcentric Ventures created any meta tags for the specific reports at issue in this case? Do you think that Ed Magedson sat down and typed the computer code that you're referring to as meta tags? A It's not a computer code. It's very easy. In fact, when I called Google and Yahoo, they both said that there's no way we can take this out other 101

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than Ripoff Report. Q You're saying that Google and Yahoo wouldn't agree to remove anything from their search engine index and that, if you wanted it to disappear from there, you had to ask Ripoff Report to take it down and they would have to do that? A Yes, that's right. Q But that's not quite what I asked you. I asked you what evidence do you have that Ed Magedson personally created any meta tags at all for the reports about your company or you in this case? How do you know that he did that? I understand that you think that he did, but I'm asking for evidence that supports that. A There's nobody else -- you're creating in a conspiracy theory here. We are talking about specifics. He is the owner of this website. It seem to me it's a one-man show, its own operation in a way, gave and take. And he's -- there's nobody else is doing these things. Unless you want to say there is a conspiracy theory here. Q Well, but the author could be doing that, couldn't they? A Author how they can do it? Q By inputting information --

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there beginning -A Exhibit 10? Q Exhibit 10, paragraph 22, subparagraph E. Beginning with the word "solicit." It's the complaint which is there. A It's in the complaint? Q The complaint -A I apologize. You said in the exhibit. Page 10? Q Page 10, paragraph 22, subparagraph E. A Page 10, D? Q "E" as in "Edward." A Go ahead. Q Beginning with the word "solicit," do you see where it appears that you're alleging that defendants solicit individuals to submit so-called Ripoff Reports with the promise that so-called individuals may receive compensation in exchange for their posts. Do you have any evidence that Ed Magedson or anyone associated with Xcentric Ventures, LLC, specifically asked somebody to post anything about you, AEI or Ms. Llaneras? A Answer to that is Ripoff Report has -- we have a copy of that page I believe. I can provide

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A Author does not have access to your database information, content management system. You have the access to your content management system. Q Let me just ask you this: Is it your position that Mr. Magedson using a keyboard typed in any of the information in anything that you would call a meta tag relating to the reports at issue in this case? A Yes. Q Do you have any evidence to support that? A It's -Q Other than your own speculation. I understand that you're speculating. That's fine. MR. BLACKERT: Objection. Mischaracterize the witness's testimony. BY MR. GINGRAS: Q Do you have witnesses or documents that support your theory? A There is no one can go to that website other than Mr. Magedson. You're going universal on something which is he's the only person who has access to his content management. Q Let's look at subparagraph E of paragraph 22 in Exhibit 10. Okay? Do you see what it says

that to you, which it says is he -Q What do you mean by that page? Oh, you're saying where it says submit a report and receive compensation? A It says submit a report, you will be interviewed by media and even you would be compensated. Q First of all, I think there's a footnote to your own complaint that says defendants have removed this content from their website. But it sounds to me like even if it was still there, that's a general reference, is it not? I mean, they're not saying submit a report about AEI and -A They're saying about everybody. Q Generally, yes -A I'm everybody there. Q Is it your position that anything on the Ripoff Report website ever said, if you submit a report about AEI, Raymond Mobrez or Iliana Llaneras, that money would be paid to the author? Do you have any proof that that's true? A It is part of the Ripoff Report. Q Where? A We just, we just discussed that. It's in

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our website specifically says that -Q About AEI or in general? A No, anybody. "Come on and do it." Q But you would agree with me, sir, that there was never -- has never been, is not now, has never been in the past anything that specifically asked people to post about AEI, you or your wife? A It says that. It's invitation -Q It says AEI? A No. Q It says generally, doesn't it? A Yeah. "Come on and do it." Q Okay. A It's invitation. Q Do you have any evidence that the authors of any of the six reports at issue in this case wrote what they wrote because they believed they were going to be paid? A I can't speak of that. Q I know you can't. Let's turn to page 12, please, of Exhibit 10. Beginning with the heading "The Shakedown." Do you see that? A Correct. Q Do you see where it says "The Shakedown"? 106
A Correct. Q Tell me what you understand the term "shakedown" to mean. A In nutshell. Q Yeah. A Shakedown to me is a nutshell. All the facts. Q I don't know what that means, but I'll accept, I'll accept that. A Number one, you have to understand, maybe this is a legal term. I'm not -Q Oh, you didn't write it? A Huh? Q You did not write that term? A I don't write legal paper. Q Do you believe, as you understand that term to mean whatever you think it means, do you believe that a shakedown occurred in this case? A I'm not quite sure what you're saying. Q I don't either. I don't know what the word means. Let's move on. The subsections of paragraph 28, there are A through O, which appear to be quotations from one or more of the reports which are exhibits 1A through 6A and B of your deposition.

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Do you see the text quoted there, yeah, in those subparagraphs? 28A through O? A Correct. Q Beginning with, quote, "Asia Economic Institute lie, cheat, tax fraud," and then there's other text there. Do you see that? A Yes. Q Do you believe that Ed Magedson or anybody associated with Xcentric Ventures, LLC, created that text as in specifically wrote it? A I can't speak of that. I don't know who wrote it. Q Do you have any evidence that Ed Magedson did so? A I can't speak of that. He may did. Q He may have, but he may not have; right? A I don't know. I don't know who did this. Q Okay. Turning to paragraph 30 on the next page, 13, paragraph 30 talks about defendants -- I assume you mean Mr. Magedson -- "informed you that they would not remove the defamatory posts even if they were false. Defendants further offered to enroll plaintiffs in the CAP program for a fee of at least $5,000 plus a monthly monitoring fee." When did that statement occur in paragraph

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30? When did that happen? A Well, it could be on April 2009. Q Okay. And we'll get to your declaration. I think you're more specific, so don't worry if you don't recall right now. But definitely defendants Ed Magedson or Xcentric, I guess, offered to enroll you in the CAP program for $5,000? A Yes. Q Okay. And then you referred to an e-mail. I guess we'll get to that in just one second, dated May 12th. Did the May 12th e-mail that you received from Mr. Magedson cause you to feel any fear? A Absolutely. Q Why? A He's saying go and enroll to this, it's a pressure. He's persistent about -Q Wait a minute. Hold on. Oh, that is 12. That's okay. I don't want to go out of order. We'll get to that e-mail in a minute. I think I confused May 12th with Exhibit 12. I'm sorry, I interrupted you. You were talking about why that e-mail made you feel fear. A It says "You're driving me crazy, you've got to go and do this." 109

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weeks from now. Q That's right. A Okay. So we have three weeks to go. Q Mr. Mobrez, your complaint includes a couple of allegations of conspiracy. Do you believe that Mr. Magedson and/or Xcentric have conspired with somebody else to harm you? A I can't speak of that. MR. BLACKERT: Objection. Calls for a legal conclusion. BY MR. GINGRAS: Q Are you aware of any evidence that shows Mr. Magedson or Xcentric or anyone associated with Xcentric conspiring to harm you? MR. BLACKERT: Objection. Calls -BY MR. GINGRAS: Q I'm asking about evidence that you know of. MR. BLACKERT: Objection. Calls for a legal conclusion. THE WITNESS: I have to see evidence. You have the evidence. I have to see your evidence so I can see who you were involved. BY MR. GINGRAS: Q Well, I know what our evidence is on that 174 point, which is zero, and I'm not here to testify, so that's meaningless to you. But I want to know what evidence you have. Because in theory you shouldn't bring a lawsuit with serious claims like that without evidence. Wouldn't you agree with me? Move to strike that. That was argumentative. A Let me clarify the statement you just made. When I say "to you," it means Ed Magedson or Ripoff Report. I don't mean to you personally. Q Right. A So I appreciate you understand that. Q But I'm talking about your conspiracy claim specifically. Conspiracy in my mind, you can't enter into a conspiracy with yourself. You're referring to a conspiracy with somebody else. And I'm asking you who is that somebody else. MR. BLACKERT: Objection. Calls for a legal conclusion. THE WITNESS: I -- can you be clear about your statement, or can you rephrase it and ask me any other shape and form so I can be able to respond to it adequately? \\\ 175

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BY MR. GINGRAS: Q Sure. Let's just use your own words, okay? Okay. On page 23, beginning with paragraph 72 of Exhibit 10. A Yes. Q Ignore paragraph 72. Look at paragraph 73: "Defendants and persons unknown to the plaintiffs at this time have had a common design by means of concerted action to solicit, develop, create and publish on defendant's websites false and defamatory statements about the plaintiffs." My question to you is I understand at the time you wrote this you said the defendants and people who you did not know have done these bad things. As we sit here now, have you gained any further insight into who those unknown people are? A You have to give me your information so I can find out who they are. Q And imagine our response is "I don't know. No such person. We didn't conspire with anyone." Assuming that's our response, which it will be, what evidence do you have to show anything contrary to that? Anything? 176

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MR. BLACKERT: Objection. Argumentative. THE WITNESS: I don't know. This is a legal question. BY MR. GINGRAS: Q Oh, it's purely factual, Mr. Mobrez. What I'm asking you is, let's say John Brewington called you up and said, "I've been conspiring with Ed Magedson. He asked me to post these things about AEI, and I did that because he gave me an ice cream cone," since we've been talking about ice cream. That would be a factual issue that I'd like to know about if you have any evidence like that. If you don't have any evidence like that, I'm also interested in that. Okay? MR. BLACKERT: Objection. Vague and ambiguous. BY MR. GINGRAS: Q As you sit here today, I understand when you filed this complaint you did not know who these unknown people were. As you sit here today, do you know who they are? A You are going back again to guessing game. We -- I can't guess anything until you provide me all your evidence, all your information. Q So as we sit here today, the name of this 177

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unknown person you don't know? A No. Q Okay. A I can guess a million things. It's not a guessing game. Q What is the total amount of damages that you're seeking in this case? MR. BLACKERT: Objection. Calls for a legal conclusion. THE WITNESS: We have not compiled all of our numbers yet. But we have a huge loss here. BY MR. GINGRAS: Q In a ballpark figure, what do you believe that loss to be? MR. BLACKERT: Objection. Calls for a legal conclusion. Asked and answered. BY MR. GINGRAS: Q Are we talking about a million dollars or one dollar or something in between? MR. BLACKERT: Objection -THE WITNESS: Something above a million dollars. BY MR. GINGRAS: Q A million dollars? A And more. 178
Q How much money did you spend investing in the building of AEI, if you will? A That's we're going to collect that through our tax returns and other accounting informations. That you will have that in the next three weeks as you said -Q You said "collect that." You're not going to recover that money, you said you're going to gather that information? A Information. Q Right. A And you asked for information. Q Right. A You didn't ask for the money. Q Do you have any idea as you is sit here now how much money you spent building AEI? A I would say -MR. BLACKERT: Objection. Asked and answered. You can answer. THE WITNESS: I would say over a million dollars. BY MR. GINGRAS: Q And that would be, like, what would you have spent that money on? 179

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A It's whatever it is. We have a track record of it obviously. Q Okay. But AEI didn't sell any products, so it's not like you built prototype widgets and that cost 100,000 and then you spent money on that. Because of the nature of what the business was, giving seminars, I guess my question is what did you spend money on specifically to do that? MR. BLACKERT: Objection. Asked and answered. BY MR. GINGRAS: Q I don't know what money a person needs to spend in order to build the type of business as you've described AEI trying to be. I don't know what you would spend it on. Lawyers -- I don't know what you would spend it on, so I'm asking you to help me. A You just mentioned something very important. You said you will spend the time and to build a gadget or midget or whatever you call it. Q Widget, widget, thank you. And after you build that, I would just break it. What would you do with it after that? Why did you waste your time to build that? A Answer is all inside of that same widget. 180

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Q But in the widget example, you might be able to point to a receipt for a machine that you had to buy or a -A That's what you're going to get. Q A receipt for machines? A Yeah. Q And don't you still have those things? A We still have all the, whatever we spended on AEI. Q But you're unable to use that in any meaningful way because of the reports? A It's finished. It's burned the house. You're saying, after we built the house, somebody burned it and let's see how we can see if we can use the house again. I can use the picture, but I can't use the house back again. It's been burned to the ground. Q Okay. Mr. Mobrez, I think we covered this before, that, that you told me that your reputation and your wife's reputation and your business's reputation, they've all been harmed as a result of these postings; right? A Yes. Q And can you quantify that loss as we sit here today? 181

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want to fix this, we can take care of this right now"? A It's -- that's what I'm saying. I have, I believe there has to be one more phone call is missing in this whole picture. Q Your phone bills would show it, and they sure don't. A Let me explain to you. Because if I didn't know there is exchange of money, I would have not said, "We have to do this differently." Q Mr. Mobrez, you testified under oath repeatedly that on May 5th Mr. Magedson asked you for $5,000. Why did you ask him in the recorded phone call that you didn't know was being recorded on May 12th, why did you say to him, "I don't know what the cost of the program is"? Why did you say that? If Mr. Magedson asked you for money on May 5th, which we know he didn't, why would you ask him on May 12th that you don't know what the cost of the program is? You didn't know on May 12th because he never asked you; isn't that true? A No, I can't say that because I don't know what the cost is. MR. GINGRAS: I know you don't.

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MR. BLACKERT: No, that's okay. THE DEPOSITION OFFICER: Do you want a copy of the transcript? MR. BLACKERT: Yes, yes, yes. (Deposition session concluded at 5:12 P.M.) -o0o\\\ \\\

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All right. I think I'm going to call this a day. I know we scheduled the deposition of your wife today. I'd like to go on the record as saying that I am suspending that deposition in light of what has happened here today. I want -- your lawyer has certain obligations under his duties to the State Bar and to our court, and I do not want to put him in a position, assuming, as I hope, that he is an innocent victim of your conduct and your crimes, I do not want to put him in a position where he will lose his license if he continues to represent you knowing, as he knows now, that you have committed perjury in this case. For that reason and only that reason, I am suspending your wife's deposition. I will retake it at a later time if this case continues past today, which I certainly expect it will not. Okay? And I'll give your lawyer notice of that when and if we decide to. Okay? That's it. We're off the record. THE VIDEOGRAPHER: The time is 5:12, and we're going off the record. THE DEPOSITION OFFICER: Mr. Blackert, are you requesting review of the transcript? 299

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I do solemnly declare under penalty of perjury that the foregoing is my deposition under oath; that these are the questions asked of me and my answers thereto; that I have read same and have made the necessary corrections, additions, or changes to my answers that I deem necessary. In witness thereof, I hereby subscribe my name this ___________________ day of _________________, 20_____.

_________________________________ Witness Signature

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STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I, Yaelle Daneshrad, Certified Shorthand Reporter, Certificate No. 11754, for the State of California, hereby certify: I am the deposition officer that stenographically recorded the testimony in the foregoing matter; Prior to being examined, the witness was by me first duly sworn; The foregoing transcript is a true record of the testimony given. Dated ______________________.

____________________________

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