Free Reply - District Court of California - California

Case 3:08-cv-00397-H-AJB

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Filed 03/20/2008

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JOSEPH A. YANNY, ESQ., SBN 97979 RAPHAEL B. EMANUEL, ESQ., SBN 218755 KIM D. ASHLEY, ESQ., SBN 253160 YANNY & SMITH 1801 Century Park East, 23rd Floor Los Angeles, California 90067 Telephone: (310) 551-2966 Facsimile: (310) 551-1949 Attorneys for Plaintiff Kippys, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA KIPPYS, INC., a California Corporation, Plaintiff, v. ABOUT ATTITUDE, an entity of unknown form, 13817 Village Mill Drive, Suite 200, Midlothian, Virginia 23114; KIM LOGUE, an individual, and DOES 1 through 50, inclusive, Defendants. NO.: 08-CV-0397 H PLAINTIFF'S OPPOSITION TO DEFENDANT'S OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Date: Time: Dept: Judge:

March 24, 2008 10:00 a.m. 13 Marilyn L. Huff

Plaintiff opposes Defendant Kim Logue's objections to the evidence submitted in support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction on each of the following grounds: Declaration of Robert "Bob" Kipperman 1. Defendants' objection is unfounded. The statements made in paragraphs 16, 17,

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Case 3:08-cv-00397-H-AJB

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18, 19, 20, 21, 22 and 23 are made with Mr. Kipperman's personal knowledge. Defendants have merely set forth a blanket objection with no specificity and have not presented any information to the contrary. 2. Defendants' objection is unfounded. The statements made in paragraphs

20, 21, 22, 23, 12 and 13 are made with Mr. Kipperman's personal knowledge unless otherwise specifically stated. Defendants have merely set forth a blanket objection with no specificity and have not presented any information to the contrary. Declaration of Raphael Emanuel 3. Defendants' objection is unfounded. The primary purposes of Paragraphs

3, 4, 5, 6, 7, 8, 9 and 10 are to authenticate Plaintiff's evidence and state facts within the personal knowledge of Plaintiff's counsel. Further, Due to the emergency nature of preliminary injunctive relief, the trial court has discretion to consider hearsay evidence. Hearsay is admissible in this instance. See, Flint Distrib. Co., Inc. v. Harvey 734 F.2d 1389, 1394 (9th Cir. 1984). 4. Defendants' objection is unfounded. Defendants' use of the cases is

incorrect. Further, Due to the emergency nature of preliminary injunctive relief, the trial court has discretion to consider hearsay evidence. Hearsay is admissible in this instance. See, Flint Distrib. Co., Inc. v. Harvey 734 F.2d 1389, 1394 (9th Cir. 1984). Furthermore, website content is considered an admission of a party. 5. Defendants' objection is unfounded. Further, it calls into question

communications protected by the attorney client privilege. The declarant has personal knowledge of the statements contained in the declaration unless specifically stated otherwise.

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6.

Defendants' objection is unfounded. Further, it calls into question

communications protected by the attorney client privilege. The declarant has personal knowledge of the statements contained in the declaration unless specifically stated otherwise. The statement contained in the declaration does not speak to Ms. Logue's actions as stated in the objection.

DATED: March 20, 2008

Respectfully submitted by,

YANNY & SMITH By: /s/ Joseph A. Yanny Joseph A. Yanny Attorneys for Plaintiff Email: [email protected]

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CERTIFICATE OF FILING I hereby certify that on March 20, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a notification of electronic filing to the following CM/ECF Participants and served upon all counsel of record by placing a copy of the same in the United States Mail, postage prepaid, and sent to their last known address as follows: Stuart Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected] By: /s/ Joseph A. Yanny Joseph A. Yanny YANNY & SMITH

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