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

Filing 48

NOTICE re: Plaintiffs' "Corrected" Declarations filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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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] Paul S. Berra, CSB #186675 Law Offices of Paul S. Berra 1404 3rd Street Promenade, Suite 205 Santa Monica, CA 90401 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants. As is true of all attorneys admitted to practice before this Honorable Court, undersigned counsel owes the court a duty of candor which is taken extremely seriously. Pursuant to that duty and in order to avoid the appearance of any attempt to mislead the court by presenting an incomplete discussion of the facts relating to Defendants' Motion for Summary Judgment, counsel respectfully offers this short notice which addresses two NOTICE RE: PLAINTIFFS' CORRECTED DECLARATIONS
CV10-01360 SVW

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Case No: 2:10-cv-01360-SVW-PJW NOTICE RE: PLAINTIFFS' CORRECTED DECLARATIONS

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

pleadings recently filed by Plaintiffs--Doc. #36 (filed 5/20/2010) and Doc. #38 (filed 5/20/2010). These pleadings are an attempt to affect Defendants' concurrently filed Motion for Summary Judgment, but they are not mentioned in the motion itself. As such, pursuant to his duty of candor undersigned counsel feels it is necessary to briefly explain to the court why these new pleadings are not discussed in the motion. As the court may recall, pursuant to an order entered in April 19, 2010 (Doc. #26), Plaintiffs were ordered to file declarations explaining the factual basis for their extortion claims. On the final day to do so (Monday, May 3), Mr. Mobrez and Ms. Llaneras filed their declarations as ordered. Mr. Mobrez's initial declaration is Doc. #28 and Ms. Llaneras' initial declaration is Doc. #27. These declarations both allege that during a series of telephone calls from Mr. Mobrez to Mr. Magedson in April and May 2009, Mr. Magedson committed extortion by demanding $5,000 plus a monthly fee in order to change negative postings about Plaintiffs on the Ripoff Report website. A few days after these declarations were filed, Mr. Mobrez was deposed by undersigned counsel on Friday, May 7, 2010. During his deposition, Mr. Mobrez

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repeatedly alleged that he had been extorted by Mr. Magedson during the phone calls in April and May 2009. In addition to confirming the testimony in his declaration, Mr. Mobrez supported his allegations with handwritten notes taken during the calls and telephone bills showing the date/time of each call. After repeatedly affirming that his May 3rd declaration was a truthful and accurate reflection of his conversations with Mr. Magedson, it was revealed to Mr. Mobrez that all of his conversations with Mr. Magedson were automatically recorded by a third party vendor who operates Xcentric's phone system. The actual substance of these recordings is explained in the Motion for Summary Judgment, but it suffices to say that the recordings conclusively demonstrate that Mr. Mobrez and Ms. Llaneras perjured themselves by fabricating their extortion claims. Because the parties met and conferred regarding Defendants' Motion for Summary Judgment as required by the local rules, Plaintiffs were aware that Defendants intended to 2 NOTICE RE: PLAINTIFFS' CORRECTED DECLARATIONS CV10-01360 SVW

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

move for summary judgment based, in part, on the fact that Mr. Mobrez's and Ms. Llaneras's stories were provably and incontrovertibly false. Nevertheless, just days

before Defendants' motion was filed, Plaintiffs filed new affidavits seeking to "correct" the false testimony given in their declarations filed with the court on May 3, 2010 as well as the false deposition testimony given by Mr. Mobrez in his May 7th deposition. Notwithstanding their late disclosure in violation of the court's April 19th order, undersigned counsel would ordinarily include at least some discussion of these new affidavits in the Motion for Summary Judgment because the failure to do so might appear to give the court an incomplete picture of all salient facts. Under the unusual

circumstances of this case, however, this is not necessary because assuming the "corrected" affidavits are relied upon in Plaintiffs' opposition papers, they would be patently insufficient to preclude summary judgment based on the "sham affidavit" rule; "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (quoting Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262 (9th Cir.1991)). Because the "corrected" affidavits from Mr. Mobrez and Ms. Llaneras1 are plainly shams created after Plaintiffs were caught lying, they cannot be used to defeat summary judgment. For that reason, and because they were not produced until after the Motion For Summary Judgment was completed, these affidavits will not be discussed in Defendants' motion. Assuming they are relied upon at all in Plaintiffs' opposition brief, they will addressed in Defendants' Reply. Respectfully submitted: May 24, 2010. /S/David S. Gingras David S. Gingras

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Ms. Llaneras has not yet been deposed, so her "corrected" affidavit does not conflict with her prior deposition testimony. The corrected affidavit does, however, conflict with Ms. Llaneras' prior declaration as well as the deposition testimony of Mr. Mobrez. 3 NOTICE RE: PLAINTIFFS' CORRECTED DECLARATIONS 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 May 24, 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

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