Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02405-L-CAB

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1 Gerald L. McMahon, Esq. (SBN 036050) Monty A. McIntyre, Esq. (SBN 95796) 2 G. Scott Williams, Esq. (SBN 226516) 3 SELTZER CAPLAN McMAHON VITEK A Law Corporation 4 750 B Street, 2100 Symphony Towers 5 San Diego, California 92101-8177 Telephone: (619) 685-3003 6 Facsimile: (619) 685-3100 7 Attorneys for Defendants LOWLIFE CORPORATION LIMITED (incorrectly sued as 8 LOWLIFE CORPORATION, LTD); DALE MASTERS; and EBTM plc 9 10 UNITED STATES DISTRICT COURT OF CALIFORNIA SOUTHERN DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS Date: Time: Courtroom: Judge: March 3, 2008 10:30 a.m. 14 Hon. M. James Lorenz

11 REALLY LIKEABLE PEOPLE, INC., a Delaware corporation, LOSERKIDS, INC., 12 a California Corporation, MACBETH, INC., 13 a California corporation, MACBETH OPTICS, LP, a California limited 14 partnership, and REALLY LIKEABLE PEOPLE II, INC. (formerly ATTICUS 15 CLOTHING, INC.), a California corporation, 16 Plaintiffs, 17 vs. 18 LOWLIFE CORPORATION, LTD, an 19 English limited company, EVERYTHING BUT THE MUSIC, plc, an English 20 corporation, DALE MASTERS, an 21 individual, and DOES 1 through 25, inclusive, 22 Defendants. 23 24

Defendant EBTM submits the following evidentiary objections to the evidence

25 Plaintiffs filed in support of its Opposition to EBTM's Motion to Dismiss the complaint 26 pursuant to Rule 12(b)(2): 27 28
CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling

BACKGROUND 1. EBTM advertises to 1. Objections: United States hearsay; speculation; no foundation; lacks customers, relevance under Pebble Beach Co. v. Caddy, providing for 453 F.3d 1151, 1155 (9th Cir. 2006); citation to conversions for Complaint violates Wenz v. Memery Crystal, 55 prices in the U.S. F.3d 1503, 1505 (10th Cir. 1995). Dollar. (Opp. 3:67) Supporting Evidence
Compl. ¶6

1.

Sustained Overruled

2. More than twenty 2. Objections: 2. brands of products Declaration of Aron P. Rofer and Exhibits advertised and sold A-M are inadmissible because: hearsay; on EBTM's website speculation; no foundation; information from are from CaliforniaEBTM's Website in February 2008, four based companies, months after the complaint was filed, is including RLP's irrelevant for jurisdictional purposes, Steel own Macbeth v. U.S., 813 F.2d 1545, 1549 (C.A.9 brand. (Opp. 3:7-9) (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules Supporting Evidence of Evidence Rule 901(a) because there is no Rofer Decl. ¶3 date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under Pebble Beach Co. v. Caddy 453 F.3d 1151, 1155 (9th Cir. 2006).

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling

3. Thereafter, EBTM 3. Objections: 3. continued to Declaration of Aron P. Rofer and Exhibits systematically A-M are inadmissible because: hearsay; conduct business in speculation; no foundation; information from the United States EBTM's Website in February 2008, four and California. For months after the complaint was filed, is example, on irrelevant for jurisdictional purposes, Steel September 5, 2007, v. U.S., 813 F.2d 1545, 1549 (C.A.9 EBTM announced (Cal.) 1987); pages printed from the Internet that it had entered lack authenticity and violate Federal Rules into wholesale and of Evidence Rule 901(a) because there is no online agreements date, no proof of personal knowledge of with Adeline, based who maintains Web site, or who authored in California. documents, or accuracy of contents, Perfect (Opp. 3:11-14) 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Supporting Evidence Wady v. Provident Life and Accident Ins. Rofer Decl. ¶¶ 10-11, Co. of America, 216 F. Supp. 2d 1060, 1064 Exs. I-J (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under Pebble Beach Co. v. Caddy 453 F.3d 1151, 1155 (9th Cir. 2006). 4. Also, for example, in November 2007, EBTM announced "the launch of its US webstore for Atticus Clothing" in partnership with Music Today, part of the Live Nation Group of companies. Live Nation is headquartered in California. (Opp. 3:14-17) 4. Objections: Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: hearsay; speculation; no foundation; information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F.
3

Sustained Overruled

4.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling

Supporting Evidence Rofer Decl. ¶ 6 and Ex. E

Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under Pebble Beach Co. v. Caddy 453 F.3d 1151, 1155 (9th Cir. 2006). 5. Objections: Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: hearsay; speculation; no foundation; information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under Pebble Beach Co. v. Caddy 453 F.3d 1151, 1155 (9th Cir. 2006). 6. Objections:
Irrelevant. Masters communicated with Plaintiffs in his position as managing director of Lowlife, a subsidiary of EBTM; hearsay; no foundation; speculation; vague and ambiguous as to time; and citation to Complaint violates 4 6. 5.

5. EBTM further touted that "the launch of the US webstore is in line with our strategy for future growth." (Opp. 3:17-18) Supporting Evidence
Rofer Decl. ¶ 6 and Ex. E

Sustained Overruled

6. Masters-EBTM's director and largest single shareholdersystematically communicated with California-based

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Declaration of Diana Crawford and Exhibits AD are inadmissible because: the e-mails between Plaintiffs and Masters and/or Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks foundation; and lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

RLP regarding the Atticus, Macbeth and Loserkids brands and other matters. (3:19-21) Supporting Evidence
Compl. "¶¶ 25, 26, 120; Declaration of Diana Crawford ("Crawford Decl.") ¶¶ 2-4 and Exs. A-D

7. Moreover, in August 2007, when RLP complained about Lowlife's performance under the relevant agreements, Masters directed RLP to communicate with EBTM director Simon Hargreaves. (Opp. 3:22 ­ 4:1-3) Supporting Evidence
Crawford Decl. ¶ 4 and Ex. D; Rofer Decl. ¶ 9, 13 and Exs. H, M

7. Objections:
Irrelevant; hearsay; no foundation; speculation; misstates Ms. Crawford's declaration re: Mr. Hargreaves because there was no direct correspondence with EBTM; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: information from EBTM's Website in February, 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); lacks foundation; misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance 5

7.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections under Pebble Beach Co. v. Caddy (9th Cir. 2006) 453 F.3d 1151, 1155.

Judge's Ruling

8. When RLP initially attempted to serve the complaint in this action upon Breeden in the United Kingdom, he was traveling in California. (Opp. 4:5-10) Supporting Evidence
Declaration of Malcolm Satchell "Satchell Decl." ¶¶ 3-4

8. Objections:
Irrelevant; hearsay; no foundation; speculation; misstates Declaration of Malcolm P. Satchell ¶ 4; assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006); lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

8.

Sustained Overruled

9. He stayed at the W Hotel located at 421 West B. Street in San Diego, California. (Opp. 4:7-9) Supporting Evidence
Declaration of Amy Arroyo ("Arroyo Decl.") ¶ 3

9. Objections:
Hearsay; no foundation; speculation; Declaration of Amy Arroyo is inadmissible because: ¶ 3 constitutes hearsay; assumes facts not in evidence; lacks foundation; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987).

9.

Sustained Overruled

10. Moreover, at a recent industry convention in San Diego, EBTM rented a booth to advertise and take orders for their Atticus brand. (Opp. 4:8-10) Supporting Evidence
Declaration of Amy Arroyo ("Arroyo Decl.") ¶ 4

10. Objections:
Hearsay; no foundation; speculation;

10.

Sustained Overruled

Declaration of Amy Arroyo ¶ 4 is inadmissible because: conduct in January 2008, three months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); lacks foundation; misstates Arroyo's Declaration because no allegation EBTM was present; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).
6

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Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling

11. Upon information and belief, EBTM reviewed and approved of the terms of each of these agreements, including their provisions that California law applied. More specifically, during negotiation of the Atticus Asset Purchase Agreement and accompanying Wind-Down Agreements, Lowlife's agents stated that their "financing source," now known not to have been a "financing source" but instead competitor EBTM, needed to review certain documents or contract terms before they could be agreed upon. (Opp. 5:20-26) Supporting Evidence Crawford Decl. ¶ 5; Compl. ¶¶ 23-29 12. On May 31, 2007, two days after the execution of the definitive agreements to sell

11. Objections:
Hearsay; no foundation; speculation;

11.

Sustained Overruled

Declaration of Diana Crawford and Exhibits A-D are inadmissible because: the e-mails between Plaintiffs and Masters and/or Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks foundation; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); citation to complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; lacks foundation; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence.

12. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; vague 7

12.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections and ambiguous; calls for legal conclusion; assumes facts not in evidence.

Judge's Ruling

the Atticus brand to Lowlife and the related Wind-Down Agreements, Masters (Lowlife's sole owner) disclosed for the first time that he was not actually working with a "financing source" or obtaining loans or investments to underwrite a portion of the purchase price, as his agent had represented during the negotiations, but instead Masters apparently had been conspiring with EBTM, a direct competitor of Loserkids, to immediately sell Lowlife and its rights to the Atticus brand to EBTM. (Opp. 5:27-28 - 6:1 -5) Supporting Evidence
Compl. ¶¶ 8, 25

13. Lowlife and Masters served and continue to serve as EBTM's agents. (Opp. 6:8-9)

13. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; vague and ambiguous; calls for legal conclusion; 8

13.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections assumes facts not in evidence.

Judge's Ruling

Supporting Evidence
Compl. ¶¶ 12

14. On June 6, 2007 (five days after EBTM publicly announced it had acquired Lowlife), EBTM commenced a secret plot to shut down RLP's website, Loserkids.uk.com, by falsely informing the website fulfillment provider, Andy Murray ("Murray") at Trinity Street Direct ("Trinity Street"), that EBTM had purchased the website, that fulfillment would be switched from Trinity Street to EBTM, and that Loserkids.uk.com would be shut down. (Opp. 6:23-26; 7:1-3) Supporting Evidence Compl. ¶¶ 71-81; Declaration of Andy Murray ("Murray Decl.") ¶ 3 and Ex. A 15. EBTM then

14. Objections:
Hearsay; no foundation; speculation; citation to

14.

Sustained Overruled

Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

15. Objections:
9

15.

Sustained

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Plaintiffs' Opposition

Evidentiary Objections Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Declaration of Mr. Murray lacks credibility because it constitutes hearsay; Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks foundation; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

secretly discussed logistics for transitioning the loserkids.uk.com business from Trinity Street to EBTM, including a planned launch date, logistics for sending all loserkids.uk.com inventory to EBTM, and plans to shut down the site. (Opp. 7:5-8) Supporting Evidence Compl. ¶ 72-81; Murray Decl ¶¶ 3-7, 10 and Exs. A-D 16. Only after the Loserkids.uk.com site had been shut down, on August 6, 2007, did EBTM contact RLP about these actions, falsely and fraudulently alleging that there was an emergency and that Trinity Street had forced the closure of the site on virtually no notice. (Opp. 7:812) Supporting Evidence Compl. ¶ 77-79; Crawford Decl. ¶ 2 and

Overruled

16. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Declaration of Diana Crawford and Exhibits A-D are inadmissible because: the e-mails between Plaintiffs and Masters and/or Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks foundation; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). Declaration of Mr. Murray lacks credibility because: it constitutes hearsay; Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in 10

16.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections evidence; lacks foundation; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

Ex. A; Murray Decl. ¶¶ 10-11

17. These actions and false statements were intentionally undertaken to fraudulently induce RLP to agree to turn the operation of the loserkids.uk.com site over to EBTM, a direct competitor of RLP. (Opp. 7:12-15) Supporting Evidence Compl. ¶ 77-79; Murray Decl. ¶¶ 10-11; Crawford Decl. ¶¶ 2-4 and Exs. A-D

17. Objections:
Hearsay; no foundation; speculation; citation to

17.

Sustained Overruled

Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Declaration of Mr. Murray lacks credibility because: Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); Declaration of Diana Crawford and Exhibits A-D are inadmissible because: the e-mails between Plaintiffs and Masters and/or Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

18. In connection with this same fraudulent scheme

18. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 11

18.

Sustained Overruled

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Plaintiffs' Opposition

Evidentiary Objections F.3d 1503, 1505 (10th Cir. 1995); argumentative; calls for legal conclusion; misstates and assumes facts not in evidence.

Judge's Ruling

and having intentionally and misleadingly informed Trinity Street that EBTM "owned" the Loserkids.uk.com site, EBTM misappropriated RLP's trade secret protected customer data. (Opp. 7:2022) Supporting Evidence
Compl. ¶¶ 133-142

19. More specifically, on July 4, 2007, at Lowlife's request, Trinity Street sent to Lowlife the www.Loserkids.uk. com customer data, which included names, shipping addresses, and email addresses for any customers that were shipped product ordered from www.Loserkids.uk. com and those customers who registered for the website's mailing list. (Opp. 7:22-25; 8:1) Supporting Evidence
Murray Decl. ¶ 8 and

19. Objections:
Hearsay; no foundation; speculation; Declaration of Mr. Murray lacks credibility because: Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks foundation; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

19.

Sustained Overruled

12
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Plaintiffs' Opposition Exs. E-F

Evidentiary Objections

Judge's Ruling

20. Thereafter, EBTM 20. Objections: 20. accessed and Hearsay; no foundation; speculation; citation to misappropriated Complaint violates Wenz v. Memery Crystal, 55 RLP's trade secrets F.3d 1503, 1505 (10th Cir. 1995); including its argumentative; calls for legal conclusion; customer list and misstates and assumes facts not in evidence; data knowing they Declaration of Mr. Murray lacks credibility did not own or have because: Exhibit F shows correspondence rights to disclose between Lowlife and Trinity Street, not EBTM; that information to lacks relevance under Doe v. Unocal Corp. 248 EBTM and were F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes under a duty as the facts not in evidence; lacks relevance under operator of RLP's Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 website not to do (Cal.) 1987); calls for legal conclusion; lacks so. (Opp. 8:2-5) credibility in violation of Rio Properties, Inc. v. Supporting Evidence
Compl. ¶ 135-139; Murray Decl. ¶ 9 and Ex. F 21. 21. Moreover, EBTM 21. Objections: director Hatty Hearsay; no foundation; speculation; Fawcett emailed Declaration of Mr. Murray lacks credibility Lowlife about the because: Exhibit F shows correspondence data, making clear between Lowlife and Trinity Street, not EBTM; that EBTM was is lacks relevance under Doe v. Unocal Corp. 248 possession of it and F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks relevance under had or has plans to Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 use it: "I've now (Cal.) 1987); calls for legal conclusion; lacks had a chance to credibility in violation of Rio Properties, Inc. v. look at the Loser Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th kids ... customer Cir. 2002); data from Trinity Street. ... I was also Declaration of Aron P. Rofer and Exhibits A-M expecting to are inadmissible because: information from See both billing and EBTM's Website in February, 2008, four shipping months after the complaint was filed, is information - but irrelevant for jurisdictional purposes, Steel v. have only been U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); provided with one pages printed from the Internet lack 13 Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Sustained Overruled

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

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Evidentiary Objections authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

address. Can you confirm whether Loser Kids customers can provide a different delivery address to their billing addresses. If so, we need to get both addresses from Trinity Street. ..." (Opp. 8:6-12) Supporting Evidence
Murray Decl. ¶ 9 and Ex. F.; Rofer Decl. ¶ 12 and Ex. K

22. EBTM caused its 22. Objections: subsidiary Lowlife Hearsay; no foundation; speculation; to delete a Declaration of Mr. Murray lacks credibility Loserkids.uk.com because: Exhibit F shows correspondence hyperlink from a between Lowlife and Trinity Street, not site they operated, EBTM; lacks relevance under Doe v. Atticusclothing.co Unocal Corp. 248 F.3d 915, 927 (C.A.9 m, and add a new (Cal.) 2001); assumes facts not in hyperlink from evidence; lacks foundation; lacks relevance Atticusclothing.co under Steel v. U.S., 813 F.2d 1545, 1549 m to EBTM.com, (C.A.9 (Cal.) 1987); calls for legal violating the conclusion; lacks credibility in violation of express terms of the Rio Properties, Inc. v. Rio Int'l Interlink, Loserkids.uk.com 284 F.3d 1007, 1019 (9th Cir. 2002) Wind-Down Agreement and Declaration of Aron P. Rofer and Exhibits A-M intentionally are inadmissible because: information from diverting EBTM's Website in February 2008, four commercial traffic months after the complaint was filed; is to EBTM.com that irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); otherwise would pages printed from the Internet lack have gone to authenticity and violate Federal Rules of Loserkids.uk.com. Evidence Rule 901(a) because there is no date, (Opp. 8:18-22)
no proof of personal knowledge of who 14

22.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

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Plaintiffs' Opposition

Evidentiary Objections maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006); Declaration of Patrick Swart and Exhibits A-D are inadmissible because: pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date on the web pages showing when they were printed; no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents. Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

Supporting Evidence
Murray Decl. ¶ 9 and Ex. F; Rofer Decl. ¶ 12 and Ex. K; Swart Decl. ¶ 6 and Ex. D

23. EBTM and Lowlife 23. Objections: 23. were starving the Hearsay; no foundation; speculation; Loserkids.uk.com Declaration of Patrick Swart and Exhibits A-D site for fresh are inadmissible because: pages printed from product, those same the Internet lack authenticity and violate products were Federal Rules of Evidence Rule 901(a) because being ordered for there is no date on the web pages showing when they were printed; no proof of personal and sold on knowledge of who maintains Web site, or who EBTM.com. (Opp. authored documents, or accuracy of contents. 9:3-5) Supporting Evidence
Swart Decl. ¶ 6 and Ex. D Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. 15

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Evidentiary Objections Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; argumentative and states legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

24. When EBTM and 24. Objections: 24. Lowlife did Hearsay; no foundation; speculation; belatedly post new Declaration of Patrick Swart and Exhibits A-D product for sale on are inadmissible because: pages printed from Loserkids.com, the Internet lack authenticity and violate they did so in a Federal Rules of Evidence Rule 901(a) because there is no date on the web pages showing when paucity of sizes in a they were printed; no proof of personal transparent attempt knowledge of who maintains Web site, or who to further harm the authored documents, or accuracy of contents. site while allowing Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 EBTM and Lowlife F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady to argue that they v. Provident Life and Accident Ins. Co. of did post some new America, 216 F. Supp. 2d 1060, 1064 (C.D. product. (Opp. 9:8Cal. 2002); misstates testimony and evidence; 10) assumes facts not in evidence; lacks credibility Supporting Evidence
Swart Decl. ¶ 68 and Ex. D in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Sustained Overruled

25. Additionally, Lowlife as an agent of EBTM, failed to timely ship Atticus product to Loserkids.com in the United States and failed to ship and/or post Atticus and Macbeth Fall 2007 product on Loserkids.uk.com. EBTM and Lowlife intentionally engaged in those actions or omissions in an

25. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence. Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, 16

25.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Plaintiffs' Opposition

Evidentiary Objections no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

attempt to cause commercial harm to RLP and its affiliates and to gain an unfair competitive advantage in the marketplace, since RLP is a competitor of EBTM and EBTM was at the same time receiving and selling the same products on its own website. Moreover, on August 31, 2007, Masters told RLP that Lowlife refused to ship Atticus product to RLP despite the prior agreement to do so, because Loserkids was a competitor of EBTM. (Opp. 9:16-25) Supporting Evidence
Compl. ¶¶ 46-51, 58-62, 65, 67-70; Rofer Decl. ¶ 4 and Ex. B (EBTM press release, dated August 15, 2007, stating that it had recently acquired Atticus); Compl. ¶ 61

26. EBTM also 26. 26. Objections: intentionally sought Hearsay; no foundation; speculation; citation to to divert sales from Complaint violates Wenz v. Memery Crystal, 55
17

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Evidentiary Objections F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence.

Judge's Ruling

RLP and its affiliates' websites through a stealth scheme to misappropriate Tom Delong's and Blink 182's names and celebrity by referencing them in the meta data for the Atticus webpage on EBTM.com. (Opp. 9:27-28; 10:1-2) Supporting Evidence
Compl. ¶¶ 166-173

27. This meta data was 27. Objections: 27. known by EBTM to Hearsay; no foundation; speculation; citation to be read and indexed Complaint violates Wenz v. Memery Crystal, 55 by search engine F.3d 1503, 1505 (10th Cir. 1995); algorithms argumentative; mischaracterizes facts; employed by misstates testimony; vague and ambiguous; Google and other calls for legal conclusion; assumes facts not in evidence; major internet search providers Declaration of Patrick Swart and Exhibits A-D and must be are inadmissible because: pages printed from intentionally coded the Internet lack authenticity and violate by the owner of a Federal Rules of Evidence Rule 901(a) because site. (Opp. 10:2-4) Supporting Evidence
Compl. ¶ 170; Swart Decl. ¶ 4 there is no date on the web pages showing when they were printed; no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents. Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). 18

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Evidentiary Objections

Judge's Ruling

28. More specifically, 28. Objections: 28. EBTM intentionally Hearsay; no foundation; speculation; citation to and knowingly Complaint violates Wenz v. Memery Crystal, 55 included in its meta F.3d 1503, 1505 (10th Cir. data for the Atticus 1995); argumentative; lacks foundation; web page, mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal http://www.ebtm.co conclusion; assumes facts not in evidence; m/m-7-atticusclothing-atDeclaration of Patrick Swart and Exhibits A-D ebtm.aspx, the are inadmissible because: pages printed from following phrases: the Internet lack authenticity and violate "Atticus Clothing. Federal Rules of Evidence Rule 901(a) because Designed by Tom there is no date on the web pages showing when DeLonge" and they were printed; no proof of personal "Atticus Clothing T knowledge of who maintains Web site, or who Shirts T-Shirts authored documents, or accuracy of contents. tshirts blink 182." Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 (Opp. 10:4-8) F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady Supporting Evidence
Compl. ¶ 170; Swart Decl. ¶ 4 v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Sustained Overruled

29. RLP is informed 29. 29. Objections: and believes and on Hearsay; no foundation; speculation; citation to that basis alleges Complaint violates Wenz v. Memery Crystal, 55 that EBTM F.3d 1503, 1505 (10th Cir. 1995); intentionally and argumentative; mischaracterizes facts; misstates knowingly inserted testimony; vague and ambiguous; calls for speculation and a legal conclusion; assumes these phrases in its facts not in evidence. website meta data as a stealth means to gain an unfair competitive advantage in the marketplace and to improperly advertise and divert commercial traffic from Loserkids.com sites
19

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Evidentiary Objections

Judge's Ruling

to the EBTM.com site, as EBTM knew that this meta data is read and indexed by search engine algorithms employed by Google and other major internet search providers. (Opp. 10:9-14) Supporting Evidence
Compl. ¶ 170

30. Statement by 30. Objections: 30. EBTM in its meta Hearsay; no foundation; speculation; citation to data besides being Complaint violates Wenz v. Memery Crystal, 55 expressly F.3d 1503, 1505 (10th Cir. 1995); prohibited by argumentative; mischaracterizes facts; Atticus Asset misstates testimony; vague and ambiguous; Purchase calls for speculation and a legal conclusion; assumes facts not in evidence. Agreement (See fn 5, supra) was also patently false, as none of the clothing on EBTM's website was designed by Tom DeLonge. (Opp. 11:2-4) Supporting Evidence
Compl. ¶ 171

Sustained Overruled

GENERAL PERSONAL JURISDICTION 31. EBTM's website advertises as doing business in the United States and provides conversions for 31. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; 20
CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

31.

Sustained Overruled

Case 3:07-cv-02405-L-CAB

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Evidentiary Objections calls for speculation and a legal conclusion; assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

prices in the U.S. dollar. (Opp. 13:13-14) Supporting Evidence
Compl. ¶ 6

32. The website is open 32. Objections: 24-hours, seven Hearsay; no foundation; speculation; lacks days a week, for relevance under Stover v. O'Connell Assocs., California Inc., 84 F.3d 132, 137 (4th Cir. 1996); Zippo consumers to visit Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. the website, 1119, 1125 (W.D. Pa. 1997); vague and purchase ambiguous; calls for legal conclusion; assumes facts not in evidence. merchandise, and have the product shipped to their home. (Opp. 13:1416) Supporting Evidence
www.ebtm.com

32.

Sustained Overruled

33. In addition to EBTM's frequent sales to California consumers, EBTM has other extensive contacts with California as evidenced by its website and other publicly-available documents. EBTM sells on its website clothing lines of more than twenty companies based in California, including Adeline, Adio, Alliance, Bench, DC Clothing, DC

33. Objections:
Hearsay; no foundation; speculation; Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: information from EBTM's Website in February, 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under C.D. Cal.Pebble Beach Co. v. 21

33.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

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Plaintiffs' Opposition

Evidentiary Objections Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

Shoes, Dekline Shoes, Draven, Eastpak USA, Fender, Hurley International LLC, Iron Fist, Junk Food, Level 27, Lost Property, Macbeth, Rockett, To Die For, Vans Clothing, Vans Shoes, Vestal Watch, Inc., and Vintage. a significant portion of EBTM's revenue appears to be generated by its sale of California products. (Opp. 13:17-24) Supporting Evidence
Rofer Decl. ¶ 3

34. Two recent announcements from EBTM further emphasize its contacts with California. On September 5, 2007, EBTM announced that it had entered into "wholesale and online retail agreements" with Adeline, a California business.

34. Objections:
Hearsay; no foundation; speculation;

34.

Sustained Overruled

Declaration of Aron P. Rofer and Exhibits A-M are inadmissible because: information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d
22

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Evidentiary Objections

Judge's Ruling

This contract was listed among the "Key Points" for EBTM's interim results for the six months ended October 31, 2007. On November 19, 2007, EBTM announced "the launch of its US webstore for Atticus Clothing" in partnership with Music Today, part of the Live Nation Group of companies. Live Nation is headquartered in California. EBTM stated that "[t]o work with Live Nation is a significant step for EBTM." EBTM further stated that the demand for its Atticus product in North America was "strong" and that "the launch of the US webstore is in line with our strategy for future growth." Not surprisingly

1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006); misstates Declaration of Malcolm P. Satchell ¶ 4; assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006); lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). Declaration of Amy Arroyo is inadmissible because: ¶ 3 constitutes hearsay; assumes facts not in evidence; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987).

23
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Evidentiary Objections

Judge's Ruling

given all of the above, EBTM's representatives and agents apparently travel frequently to California on business. Indeed, on December 11, 2007, when RLP attempted to serve the summons and complaint in this action upon Breeden in the United Kingdom, he was traveling in California. (Opp. 13:25-28; 14:1-10) Supporting Evidence
Rofer Decl. ¶¶ 10-12, Exs. I-L; Rofer Decl. ¶ at ¶ 10 and Ex. I; Rofer Decl. ¶ 5 and Ex. C; Rofer Decl. ¶ 5 and Ex. C; Rofer Decl. ¶ 5 and Ex. C; Satchell Decl. ¶¶ 3-4; Arroyo Decl. ¶ 3

35. Masters 35. Objections: systematically Hearsay; no foundation; speculation; citation to communicated with Complaint violates Wenz v. Memery Crystal, California-based 55 F.3d 1503, 1505 (10th Cir. 1995); RLP regarding argumentative; mischaracterizes facts; Atticus and the misstates testimony; vague and ambiguous; purportedly calls for speculation and a legal conclusion; assumes facts not in evidence; "emergency" closure of the Declaration of Diana Crawford and Exhibits ALoserkids.uk.com D are inadmissible because: the e-mails site described above between Plaintiffs and Masters and/or Lowlife in furtherance of are irrelevant under Doe v. Unocal Corp., 248 EBTM's tortious
F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. 24

35.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

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Plaintiffs' Opposition

Evidentiary Objections U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

conduct. (Opp. 14:14-16) Supporting Evidence
Compl. ¶ 120; Compl. ¶ 25-30, 61, 76; Crawford Decl. ¶¶ 2-4 and Exs. AD

36. His email address for these communications was [email protected] om. (Opp. 14:1819) Supporting Evidence
Crawford Decl. ¶¶ 2-4 and Exs. A-D

36. Objections:
Hearsay; no foundation; speculation; Declaration of Diana Crawford and Exhibits AD are inadmissible because: the e-mails between Plaintiffs and Masters and/or Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987) because there was no direct correspondence with EBTM; misstates Ms. Crawford's declaration; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

36.

Sustained Overruled

37. EBTM apparently 37. Objections: 37. assumed Lowlife's Hearsay; no foundation; speculation; role with regard to Declaration of Diana Crawford and Exhibits Aperformance of the D are inadmissible because: the e-mails agreements at issue, between Plaintiffs and Masters and/or Lowlife as Masters informed are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 (Cal.) 2001) and Steel v. RLP that they U.S., 813 F.2d 1545, 1549 (C.A.9 should correspond (Cal.) 1987) because there was no direct with EBTM director correspondence with EBTM; misstates Ms. Simon Hargreaves Crawford's declaration; assumes facts not in in response to evidence; lacks foundation; lacks credibility in RLP's complaints violation of Rio Properties, Inc. v. Rio Int'l about Lowlife's Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). performance under the agreements. Declaration of Aron P. Rofer and Exhibits A-M (Opp. 14:19-22) are inadmissible because: information from Supporting Evidence
Crawford Decl., ¶ 4 and Ex. D; Rofer Decl., ¶ 9 EBTM's Website in February, 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); 25

Sustained Overruled

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Plaintiffs' Opposition and Ex. H

Evidentiary Objections pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

IMPUTING CONTACTS OF OTHERS TO EBTM 38. Lowlife's acts 38. Objections: 38. regarding the Atticus Hearsay; no foundation; speculation; clothing line were Declaration of Aron P. Rofer and Exhibits Asufficiently important M are inadmissible because: information to EBTM that if it did from EBTM's Website in February, 2008, not have Lowlife to four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. perform them, EBTM U.S., 813 F.2d 1545, 1549 (C.A.9 would have (Cal.) 1987); pages printed from the Internet undertaken to perform lack authenticity and violate Federal Rules of substantially similar Evidence Rule 901(a) because there is no services. (Opp. 15:22date, no proof of personal knowledge of who 24 Supporting Evidence
maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006). 26
CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Sustained Overruled

Case 3:07-cv-02405-L-CAB

Document 15-2

Filed 02/25/2008

Page 27 of 34

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Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling

39. Actions taken by Lowlife with regard to design, manufacture, and distribution of retail clothing brands ­ in particular, the Atticus brand ­ were sufficiently important that EBTM would have performed the actions had Lowlife not done so. (16:4-7) Supporting Evidence

39. Objections:
Hearsay; no foundation; speculation; no evidence cited in support of this conclusion.

39.

Sustained Overruled

PURPOSEFUL & INTENTIONAL ALLEGATIONS 40. EBTM's secret plot to shut-down RLP's website and take over fulfillment (Opp.17:11-12) Supporting Evidence
Compl. ¶¶ 71-81; Murray Decl. ¶¶ 3-7, 10-11 and Exs. A-D

40. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence; Declaration of Mr. Murray lacks credibility because: Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)

40.

Sustained Overruled

41. EBTM's theft of RLP's customer data (Opp. 17:13-14)

41. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 27

41.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

Document 15-2

Filed 02/25/2008

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Plaintiffs' Opposition

Evidentiary Objections 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence; Declaration of Mr. Murray lacks credibility because: Exhibit F shows correspondence between Lowlife and Trinity Street, not EBTM; lacks relevance under Doe v. Unocal Corp. 248 F.3d 915, 927 (C.A.9 (Cal.) 2001); assumes facts not in evidence; lacks relevance under Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); calls for legal conclusion; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

Supporting Evidence
Compl. ¶¶ 132-142; Murray Decl. ¶¶ 8-9, 12 and Exs. EF, H

42. EBTM's various acts 42. Objections: 42. to divert business from Hearsay; no foundation; speculation; citation Loserkids.uk.com to to complaint violates Wenz v. Memery EBTM.com Crystal, 55 F.3d 1503, 1505 (10th Cir. (Opp. 17:15-16) 1995); argumentative; mischaracterizes facts; Supporting Evidence
Compl. ¶¶ 28-29, 65-66, 7181,153-54,160-61; Swart Decl. ¶ 6 and Ex. D misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence; Declaration of Patrick Swart and Exhibits A-D are inadmissible because: (1) pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date on the web pages showing when they were printed; no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents. Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). 28

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

Document 15-2

Filed 02/25/2008

Page 29 of 34

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Plaintiffs' Opposition

Evidentiary Objections

Judge's Ruling 43.

43. EBTM's failure to ship Atticus for sale on RLP's websites (Opp. 17:17-18) Supporting Evidence
Compl. ¶¶ 46-51,58-62, 65, 67-70; Rofer Decl. ¶ 4 and Ex. B (EBTM acquired Atticus)

43. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence; Declaration of Aron P. Rofer and Exhibits AM are inadmissible because: information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; and lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Sustained Overruled

44. EBTM's use of the name and likeness of RLP's owner in advertising EBTM's website and products in an attempt to divert sales and consumers from Plaintiffs' websites. (Opp. 17:19-21)

44. Objections:
Hearsay; no foundation; speculation; citation to Complaint violates Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); argumentative; mischaracterizes facts; misstates testimony; vague and ambiguous; calls for legal conclusion; assumes facts not in evidence; Declaration of Patrick Swart and Exhibits A-D are inadmissible because: pages printed from the Internet lack 29

44.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

Document 15-2

Filed 02/25/2008

Page 30 of 34

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Plaintiffs' Opposition

Evidentiary Objections authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date on the web pages showing when they were printed; no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents. Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; assumes facts not in evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

Judge's Ruling

Supporting Evidence
Compl. ¶¶ 167-170; Swart Decl. ¶¶ 2-4 and Exs. A-B

45. EBTM apparently 45. Objections: assumed Lowlife's Hearsay; no foundation; speculation; role with regard to Declaration of Diana Crawford and Exhibits performance of the A-D are inadmissible because: the e-mails agreements at issue, as between Plaintiffs and Masters and/or Masters informed RLP Lowlife are irrelevant under Doe v. Unocal Corp., 248 F.3d 915, 927 (C.A.9 that they should (Cal.) 2001) and Steel v. U.S., 813 F.2d correspond with 1545, 1549 (C.A.9 (Cal.) 1987) because EBTM director Simon there was no direct correspondence with Hargreaves in EBTM; misstates Ms. Crawford's response to RLP's declaration; assumes facts not in complaints about evidence; lacks credibility in violation of Lowlife's performance Rio Properties, Inc. v. Rio Int'l Interlink, under the agreements. 284 F.3d 1007, 1019 (9th Cir. 2002); (Opp. 17:26-28) Supporting Evidence
Crawford Decl. ¶ 4 and Ex. D; Rofer Decl. ¶ 9 and Ex. H Declaration of Aron P. Rofer and Exhibits AM are inadmissible because: information from EBTM's Website in February 2008, four months after the complaint was filed, is irrelevant for jurisdictional purposes, Steel v. U.S., 813 F.2d 1545, 1549 (C.A.9 (Cal.) 1987); pages printed from the Internet lack authenticity and violate Federal Rules of Evidence Rule 901(a) because there is no date, no proof of personal knowledge of who maintains Web site, or who authored documents, or accuracy of contents, Perfect 10, Inc. v. Cybernet Ventures, Inc. 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002); Wady 30

45.

Sustained Overruled

CASE NO. 07 CV 2405 L CAB EVIDENTIARY OBJECTIONS TO PLAINTIFFS' OPPOSITION TO DEFENDANT EBTM'S MOTION TO DISMISS

Case 3:07-cv-02405-L-CAB

Document 15-2

Filed 02/25/2008

Page 31 of 34

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Plaintiffs' Opposition

Evidentiary Objections v. Provident Life and Accident Ins. Co. of America, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002); misstates testimony and evidence; lacks credibility in violation of Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); assumes facts not in evidence; lacks relevance under C.D. Cal.Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Judge's Ruling

46. EBTM purposefully 46. 46. Objections: interjected itself into Hearsay; no foundation; speculation; citation the forum state when to Complaint violates Wenz v. Memery it engaged in Crystal, 55 F.3d 1503, 1505 (10th Cir. intentional wrongful 1995); argumentative; mischaracterizes conduct targeted at facts; missta