Case 2:11-cv-01426-GMS Document 103 Filed 07/31/12 Page 1 of 6

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Iverson, Yoakum, Papiano & Hatch

633 West Fifth Street, Suite 6400 Los Angeles, CA 90071
TELEPHONE: 213.624.7444

Lisa J. Borodkin (CA Bar #196412) lborodkin@iyph.com Admitted Pro Hac Vice
Quarles & Brady LLP
Firm State Bar No. 00443100 Renaissance One, Two North Central Ave. Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

John S. Craiger (#021731) John.Craiger@quarles.com David E. Funkhouser III (#022449) David.Funkhouser@quarles.com Attorneys for Defendant Lisa Jean Borodkin IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, et al., Plaintiff, v. LISA JEAN BORODKIN, et al. Defendants. No. 2:11-CV-01426-PHX-GMS REQUEST FOR JUDICIAL NOTICE IN SUPPORT DEFENDANT LISA JEAN BORODKINS MOTION UNDER FEDERAL RULE 12(b)(6) TO DISMISS THE VERIFIED FIRST AMENDED COMPLAINT (Assigned to the Honorable G. Murray Snow) (Oral Argument Requested)

Pursuant to Federal Rule of Evidence 201 and the inherent authority of this

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Court, Defendant Lisa Jean Borodkin respectfully requests that the Court take judicial notice of the public records attached hereto as Exhibits 6 through 12. LEGAL ARGUMENT 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). Courts may take judicial notice of court filings and other matters of public record. See Reyns Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006); 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). Here, the requested facts are not subject to reasonable dispute in that they are capable of accurate and ready determination by referring to public records dockets, sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Thus, the following documents are readily verifiable and the proper subjects of judicial notice, and Borodkin respectfully requests that this Court take judicial notice of them: Exhibit 6: The opinion of the Court of Appeal of Florida, Third District, in Giordano v. Romeo, dated December 28, 2011, published at 76 So. 3d 1100, 1102 (Fla. Dist. Ct. App. 3d Dist. 2011) in which the Court described Xcentrics Corporate Advocacy Program as follows:

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As part of the record on appeal, Xcentric describes a "service" it provides to people and entities who wish to challenge false postings on Xcentric's website. This "service" is called the "Corporate Advocacy Program" by Xcentric. Individuals or businesses who believe they have been defamed by a posting on Xcentric's website must, according to the amicus brief filed in this case, "pay a tidy sum to be investigated by Xcentric's management." Moreover, "[i]n addition to a steep upfront charge, the business is required to make periodic payments to keep its status in the program." Xcentric further indicates on its website that the program "NEVER includes removal of complaints." http://www.ripoffreport.com/ ConsumersSayThankYou/WantToSueRipoffReport.aspx (emphasis in original). See id. at fn.1. Exhibit 7: The opinion of the United States District Court, Northern District of

California, in Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 124082 (N.D. Cal. Oct. 26, 2011), in which the Court called Xcentrics conduct arguably in bad faith: Indeed, courts have found the immunity applies to conduct that arguably constitute bad faith. For example, courts have found providers to be immunized from intentional torts like defamation, even when the provider has arguably exercised its publishing functions in bad faith. See, e.g., . . . Asia Economic Institute v. Xcentric Ventures LLC, No. CV 10-01360 SVW (PJWx), 2011 U.S. Dist. LEXIS 145380, 2011 WL 2469822, at *6 (C.D. Cal. May 4, 2011) (holding that defendant's deliberate manipulation of HTML code for paying customers to make certain reviews more visible in online search results was immune under section 230 and that "[a]bsent a changing of the disputed reports' substantive content that is visible to consumers, liability cannot be found."). See Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 124082 at *25. and stated that claims of misrepresentation, false advertising, or other causes of action based not on Yelps publishing conduct but on its representations regarding such conduct, would not be immunized under 230(a)(1): Indeed, it could be argued that the harm to the public (and potentially to businesses), which relies on the purported neutrality of Yelp's service, stems from an alleged misrepresentation about Yelp's posting criteria and failure to disclose its alleged practice of manipulating ratings in favor of those who advertise. Claims of misrepresentation, false advertising, or other causes of action based not on Yelp's publishing conduct but on its representations regarding such conduct, would not be

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immunized under 230(a)(1). Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 124082 at*31. Exhibit 8: The First Amended Complaint filed on July 27, 2010, filed as Docket

Number DN-96 in Asia Economic Institute LLC et al. v. Xcentric Ventures LLC et al., C.D.Cal. No. 10-cv-1360 (referred to at Paragraph 57 in the Verified First Amended Complaint in this action). Exhibit 9: Exhibits 2 to 7 to the First Amended Complaint filed on July 27,

2010 as Docket Number DN-96 in Asia Economic Institute LLC et al. v. Xcentric Ventures LLC et al., C.D.Cal. No. 10-cv-1360 (referred to at Paragraph 57 in the Verified First Amended Complaint in this action), consisting of the application materials, rate quotations, and representative results offered by Xcentric in connection with the Corporate Advocacy Program. Exhibit 10: Exhibits 24 and 25 to the First Amended Complaint filed on July 27, 2010 as Docket Number DN-96 in Asia Economic Institute LLC et al. v. Xcentric Ventures LLC et al., C.D.Cal. No. 10-cv-1360 (referred to at Paragraph 57 in the Verified First Amended Complaint in this action), consisting of the expert witness declarations of Anthony Howard, a Search Engine Optimization consultant and Joe Reed, a network systems administrator. Exhibit 11: Notice of Motion for Relief under Rule 56(f), supporting Declaration of Lisa Borodkin and Exhibits thereto filed on November 1, 2010 as Docket Number DN173 in Asia Economic Institute LLC et al. v. Xcentric Ventures LLC et al., C.D.Cal. No. 10-cv-1360 (referred to at Paragraph 60 and 61 of the Verified First Amended Complaint in this action).

Pursuant to these rules, Borodkin requests that this Court take judicial notice of the documents attached hereto as Exhibits 6, 7, 8, 9, 10, and 11 and the contents thereof in

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connection with Borodkins Motion to Dismiss, Motion for Sanctions Pursuant to Fed. R. Civ. P. 11, and any other matter that this Court deems appropriate.

RESPECTFULLY SUBMITTED this 31st day of July, 2012. IVERSON,th YOAKUM, PAPIANO & HATCH 633 West 5 Street, 64th Floor Los Angeles, CA 90071 By /s/ Lisa J. Borodkin Lisa J. Borodkin Admitted Pro Hac Vice QUARLES & BRADY LLP Renaissance One, Two North Central Avenue Phoenix, AZ 85004-2391 John S. Craiger David E. Funkhouser III Attorneys for Defendant Lisa Jean Borodkin

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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 CERTIFICATE OF SERVICE I hereby certify that on July 31, 2012, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: David S. Gingras, Esq. (David@GingrasLaw.com) Attorneys for Plaintiff Defendant Raymond Mobrez, pro se Defendant Iliana Llaneras, pro se /s/ Lisa J. Borodkin

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