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

Filing 159

REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to Entire Case 145 in Opposition to Motion for Summary Judgment filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Attachments: # 1 Exhibit 1 to Request for Jusicial Notice (November 10, 2009 Transcript of Proceedings in Blockowicz v. Williams), # 2 Exhibit 2 to Request for Judicial Notice (Dismissal of Ninth Circuit Appeal in Xcentric v. Bird), # 3 Exhibit 3 to Request for Judicial Notice (Transcript of Sept. 21, 2010 oral argument in Xcentric v. Richeson), # 4 Exhibit 4 to Request for Judicial Notice (Dec of Justin Crossman in Russo v. Xcentric))(Borodkin, Lisa)

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Asia Economic Institute et al v. Xcentric Ventures LLC et al Doc. 159 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; EDWARD MAGEDSON an individual, and DOES ) ) 1 through 100, inclusive, ) ) Defendants. ) ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Case No.: 2:10-cv-01360-SVW-PJW The Honorable Stephen V. Wilson PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: November 1, 2010 Time: 1:30 p.m. Courtroom: 6 Plaintiffs' Request for Judicial Notice -0- 10-cv-1360 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 Pursuant to Federal Rule of Evidence 201 and the inherent authority of this Court, Plaintiffs Asia Economic Institute, LLC, Raymond Mobrez, and Iliana Llaneras ("Plaintiffs") respectfully request that the Court take judicial notice of the public records attached hereto as Exhibits 1 through 4. MEMORANDUM OF POINTS AND AUTHORITIES The Federal Rules of Evidence mandate that judicial notice be taken where it is "requested by a party and supplied with the necessary information," Fed. R. Evid. 201(d), and authorizes judicial notice "at any stage of the proceeding." Fed. R. Evid. 201(f). Moreover, "a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Here, the requested fact is "not subject to reasonable dispute" in that it is "capable of accurate and ready determination by" referring to public records dockets, sources "whose accuracy cannot reasonably be questioned." FRE 201(b). Thus, the documents are readily verifiable and the proper subject to judicial notice. Courts may take judicial notice of court filings and other matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006); see also Allen v. City of Los Angeles, 92 F.3d 842, 850 (9th Cir. 1992) (federal courts may take judicial notice of proceedings in other courts, both within and without federal judicial system, if those proceedings have a direct relation to matters at issue) (overruled on other grounds); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir. 1971) (court took judicial notice of proceedings and filings in other courts). Plaintiffs respectfully request that this Court take judicial notice of the following: Plaintiffs' Request for Judicial Notice -110-cv-1360 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 Exhibit 1: The transcript of the November 11, 2009 proceeding before the Honorable James F. Holderman in the Northern District of Illinois in the civil action Blockowicz v. Williams, 09-CV-3955 (N. D. Ill. Nov. 11, 2009) [DN-44]. The relevance of the November 11, 2009 transcript in Exhibit 1 is the statement made by Defendants' counsel as follows: THE COURT: Good afternoon. Thank you for coming. We have this dilemma that has resulted from the continuing display of the information that the plaintiffs seek to have taken down. I have read the response to the motion, the response by non-party Xcentric Ventures, L.L.C. to the motion. I was hoping that, perhaps, we might be able to reach a resolution in this case in some way to accommodate everyone. Let me just ask Xcentric's lawyers, is there any way that you could agree to remove the material? MS. SPETH: Because of the enormous amount of information on the website and because of sort of a floodgate problem that we're worried about, the client is concerned that if the client does it for one person, then everybody will want him to do it. And so the client has, over the ten years that I represented this client, never, ever agreed to take down a report. This client has spent over a million dollars in legal fees protecting the rights of reports to stay posted, and, you know, perhaps that's why we call it Xcentric Ventures, Your Honor. You know, perhaps that might not be the most -- it may not sound like the most reasonable approach, but the client is pretty passionate and pretty adamant. I have never been able to succeed in convincing him to take down a report voluntarily. And any time that a court has ordered it, we have taken it up on appeal and fought it until it couldn't be fought anymore. That's just his mentality, Your Honor. Exhibit A at 2:14-3:25 (emphasis added). Plaintiffs' Request for Judicial Notice -210-cv-1360 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 The relevance of the quoted passage is that it creates a genuine issue, inter alia, as to the accuracy of the allegations in the First Amended Complaint 172, concerning whether Defendants do or do not take down reports, whether they perpetuate a false impression that they never take down or remove reports, and whether they made these statements with knowledge of their falsity. Exhibit 2: The September 23, 2010 order of the Court of Appeals for the Ninth Circuit in Xcentric Ventures v. Bird, No. 10-15460 (9th Cir. Sept. 23, 2010) [DN-12] dismissing Xcentric's appeal from an adverse decision in the District of Arizona in Xcentric's suit against blogger Sarah Bird. The relevance of Exhibit 2 is that it supports the allegation in the First Amended Complaint at 13 and elsewhere that Defendants are more interested in protecting their business model than preserving the right of all to exercise their First Amendment rights of free expressive speech, and therefore sued blogger Sarah Bird among other critics, and unreasonably pursued an appeal despite the case having been disposed of on jurisdictional grounds. Exhibit 3: The transcript of the proceedings on Xcentric's motion for a preliminary injunction in Xcentric v. Richeson, 10-cv-1931 (D. Ariz. Sept. 21, 2010). The relevance of Exhibit 3, among other things, is that constitutes an admission by Defendant Xentric that Google, Bing and Yahoo Search results are harmful in themselves, as asserted by Defendants' counsel at, inter alia, 18:21-19:6 of Ex. 3. Defendants also admit that under the facts of that case, Xcentric Ventures made redactions to Reports under threats. See Ex. 3 at 15:1-3. Exhibit 4: The Declaration of Justin Crossman submitted by the Defendants in Russo v. Xcentric, 10-cv-398 (N. D. Ga. Oct. 4, 2010) [DN-48-4] ("Crossman Dec."). The relevance of the Crossman Dec. is that it is an admission by Defendants' agent that they, inter alia, create the HTML code for Reports, which HTML code is Plaintiffs' Request for Judicial Notice -310-cv-1360 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 alleged by Plaintiffs in this action to determine the appearance of Google Search results and contribute to the harm to Plaintiffs in this case. See Ex. 4 at. 5, 6 ("the . . . HTML code . . . was created by Xcentric"). CONCLUSION Pursuant to these rules, Plaintiffs request that this Court take judicial notice of the documents attached hereto as Exhibits 1, 2, 3 and 4, and the contents thereof in connection with Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. Dated: October 4, 2010 Respectfully Submitted, /s/ Lisa J. Borodkin Lisa J. Borodkin Daniel F. Blackert Attorneys for Plaintiffs Plaintiffs' Request for Judicial Notice -4- 10-cv-1360

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