Case 2:11-cv-01426-GMS Document 145 Filed 11/07/12 Page 1 of 5

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Plaintiff Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Xcentric Ventures, LLC, an Arizona limited liability company, Plaintiff, v. Lisa Jean Borodkin, et al., Defendants. Raymond Mobrez, Counterclaimant, v. Xcentric Ventures, LLC, and Edward Magedson, Counterdefendants. Case No.: 11-CV-1426-GMS REPLY IN SUPPORT OF PLAINTIFF/COUNTERDEFENDANT XCENTRIC VENTURES, LLCS MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM

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Plaintiff/Counterdefendant XCENTRIC VENTURES, LLC (Plaintiff or Xcentric) respectfully submits the following Reply in support of its Motion for Summary Judgment re: the counterclaim asserted by RAYMOND MOBREZ (Mr. Mobrez).
REPLY RE: MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

Xcentric understands that Mr. Mobrez is not an attorney and that like any pro se litigant, his pleadings are entitled to some leeway. Nevertheless, in order to avoid summary judgment, Mr. Mobrez must demonstrate either: A.) material factual disputes which require resolution at trial; or B.) that Xcentrics legal arguments fail to show that it is entitled to judgment as a matter of law. Measured by even the most liberal standards, Mr. Mobrezs brief does not accomplish either of these things. First, regarding factual disputes, Mr. Mobrez seems to dispute each and every point set forth in Xcentrics Separate Statement of Facts, including facts which cannot reasonably be disputed. For example, Mr. Mobrez disputes Xcentrics SOF 19 which asserts that two of the allegedly illegally recorded calls were merely voicemails Mr. Mobrez left for Mr. Magedson, but he cites no evidentiary basis for his position. Furthermore, Mr. Mobrez disputes SOF 20 which notes that Mr. Mobrezs wife, Ms. Llaneras, was secretly listening to three calls, even though this fact is supported entirely by Ms. Llanerass own sworn statements submitted in the prior California action. While Mr. Mobrez is free to dislike Xcentric and its positions here, he cannot establish a valid factual dispute without referring the Court to admissible evidence which would support his position. Because he has failed to offer any evidence to contradict the facts upon which Xcentrics motion is based, there is no reason to deny summary judgment on the basis of any genuine factual disputes. Second, Mr. Mobrez does not appear to raise any serious legal arguments explaining why California law should be given extraterritorial application to Xcentrics practice of recording calls in Arizona. This issue was sufficiently briefed in Xcentrics motion so this issue requires no further discussion. However, Mr. Mobrez does raise a single point which warrants some clarification. On the question of whether his counterclaim was timely, Mr. Mobrez argues that he assumed that relief of this claim would be received through the prior California Federal Case and that I can still pursue it at this time, since the Cause of Action (Wiretapping ...) was included in the prior California Federal case and that the Court only ruled on part of
REPLY RE: MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

the Summary Judgment leaving the Wiretapping Cause open for me to pursue damages. Affidavit of Raymond Mobrez (Doc. #143) at 1:2023 (empahsis added). If Xcentric understands this argument correctly, Mr. Mobrez is saying that his wiretapping claim was raised in the prior California case but was never adjudicated by the court, therefore he feels the claim should still be viable here. This argument is wrong at both ends. First, as explained in the affidavit of counsel submitted herewith, the wiretapping claim was not raised in the prior California case. As such, there is no basis for Mr. Mobrez to argue that the claim was somehow tolled by the prior action. Second, even if the claim had been raised, the district court entered a final judgment in that matter on June 15, 2011 which fully resolved all claims in favor of Xcentric. Under these circumstances, there are two possibilities. First, Mr. Mobrez is correct and the wiretapping claim was raised in the prior California case, but in that case he cannot pursue the claim here because the court already adjudicated every claim in favor of Xcentric. As such, that judgment would be res judicata as each claim that was actually raised, and each claim which could have been raised. See Henson v. Tucson Unified School Dist., 308 Fed.Appx. 174, *1 (9th Cir. 2009) (citing Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir. 1999) (explaining [Under Arizona law, the] doctrine [of res judicata] binds the same party standing in the same capacity in subsequent litigation of the same cause of action, not only upon facts actually litigated but also upon those points that might have been litigated.) (brackets in original) (empahsis added). Alternatively, if the wiretapping claim was not raised in the prior California case, then Mr. Mobrez could and therefore should have pursued it immediately upon learning in May 2010 that his calls with Mr. Magedson were recorded in April and May 2009. Because he failed to do so, his wiretapping claims in this case are barred by the one-year statute of limitations. See Cashcall, Inc. v. Superior Court, 150 Cal.App.4th 273, 292 n.9, 71 Cal.Rptr.3d 441, 455 n.9 (Cal. App. 4th Dist. 2008) (applying one-year limitations period of Cal. Code Civ. P. 340(a) to claim under Pen. Code 632).
REPLY RE: MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

For these reasons, Mr. Mobrezs response does not offer a legitimate factual or legal basis for denial of summary judgment on his counterclaim. As such, Xcentrics Motion for Summary Judgment should be granted. DATED November 7, 2012. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Plaintiff/Counterdefendant Xcentric Ventures, LLC

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REPLY RE: MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

CERTIFICATE OF SERVICE I hereby certify that on November 7, 2012 I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following: John S. Craiger, Esq. David E. Funkhouser III, Esq. Krystal M. Aspey, Esq. Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391 Attorney for Defendant Lisa J. Borodkin Raymond Mobrez Iliana Llaneras PO BOX 3663 Santa Monica, CA 90408 Defendants Pro Se And a courtesy copy of the foregoing delivered to: HONORABLE G. MURRAY SNOW United States District Court Sandra Day OConnor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 80 Phoenix, AZ 85003-215 /s/David S. Gingras

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REPLY RE: MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIM