Free Reply - District Court of California - California

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 1 of 22

1 MARIA C. ROBERTS, State Bar No. 137907 [email protected] 2 RONALD R. GIUSSO, State Bar No. 184483 [email protected] 3 SHEA STOKES, A LAW CORPORATION 510 MARKET STREET, THIRD FLOOR 4 SAN DIEGO, CALIFORNIA 92101-7025 TELEPHONE: (619) 232-4261 5 FACSIMILE: (619) 232-4840 6 Attorneys for Specially Appearing Defendant HARRAH'S ENTERTAINMENT, INC. 7 8 9 10 11 12 JAMES M. KINDER, 13 14 vs. 15 HARRAH'S ENTERTAINMENT, INC. and DOES 1 through 100, inclusive, 16 Defendants. 17 18 19 20 21 22 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / /
S0078939.DOC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CASE NO. 07 CV 2226 DMS (POR) Judge: Mag. Judge: Hon. Dana M. Sabraw Hon. Louisa S. Porter

Plaintiff,

SPECIALLY APPEARING DEFENDANT'S OBJECTIONS AND MOTION TO STRIKE DECLARATION OF CHAD AUSTIN AND ACCOMPANYING EXHIBITS FILED IN SUPPORT OF PLAINTIFF JAMES M. KINDER'S OPPOSITION TO MOTION TO DISMISS ACCOMPANYING DOCUMENTS: REPLY BRIEF; DECLARATION OF RONALD R. GIUSSO Date: Time: Courtroom: January 7, 2008 10:30 a.m. 10

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 2 of 22

1

Specially Appearing Defendant Harrah's Entertainment, Inc. hereby objects and moves to

2 strike the following evidence presented by Plaintiff JAMES M. KINDER in support of the 3 opposition to Specially Appearing Defendant's motion to dismiss pursuant to Federal Rule of Civil 4 Procedure 12(b)(2), (6): 5 6 7 1. OBJECTION TO THE DECLARATION OF CHAD AUSTIN Declaration of Chad Austin, Paragraph 3: Specially Appearing Defendant objects to

8 Paragraph 3 of the Declaration of Chad Austin which states: 9 10 11 12 "Plaintiff has in his possession and I have personally listened to the tape recordings of each and every call (7 in total) made by Defendant to Plaintiff's number assigned to a paging service 619-999-9999, a San Diego, California number." Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

13 objects on the grounds that the information contained in paragraph 3 of the Declaration of Chad 14 Austin is inadmissible hearsay and lacks proper foundation. Federal Rule of Evidence 801 15 provides that hearsay is "a statement, other than one made by the declarant while testifying at the 16 trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 17 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 18 assertion[s]." (Fed.R.Evid. 801(a).) 19 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

20 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) The 21 mere fact a statement was reproduced by electronic voice or video recording does not alter its 22 status as hearsay. (See, United States v. Lopez, 584 F.2d 1175, 1179 (2d Cir. 1978) [taped 23 telephone conversation constitutes hearsay]; United States v. Dorrell, 758 F.2d 427, 434 (9th Cir. 24 1985) [statements recorded on video tape constitute hearsay]; see also, Duluth News-Tribune v. 25 Mesabi Publ., 84 F.3d 1093, 1098 (8th Cir. 1996) ["the vague evidence of misdirected phone calls 26 and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross27 examination of the caller or sender."].) 28 / / /
S0078939.DOC

-2-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 3 of 22

1

The Federal Rules of Evidence further provide that "[a] witness may not testify to a matter

2 unless evidence is introduced sufficient to support a finding that the witness has personal 3 knowledge of the matter." (Fed.R.Evid. 602.) The personal knowledge requirement reflects the 4 common law's judicious demand for the most reliable sources of information. (See, Fed.R.Evid. 5 602, Adv. Comm. Notes (1972); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 6 1028 (9th Cir. 2001) ["It is not enough for a witness to tell all [he] knows; [he] must know all [he] 7 tells."].) The testimony of a lay witness must be based upon what he or she actually observed or 8 perceived through his or her own senses. That is, the witness must have first-hand knowledge 9 acquired by directly perceiving the event that is the subject of his or her testimony. (See, 10 Fed.R.Evid. 602, Adv. Comm. Notes (1972) [The rule requiring that a witness who testifies to a 11 fact which can be perceived by the senses must have had an opportunity to observe, and must have 12 actually observed the fact is a most pervasive manifestation of the common law insistence on the 13 most reliable sources of information."]; SEC v. Singer, 786 F.Supp. 1158, 1167 (S.D.N.Y. 1992).) 14 The statements made in the purported tape recordings are clearly statements made out of

15 court. Through the declaration of Chad Austin, KINDER seeks to introduce these tape recorded 16 telephone calls as evidence that he was called by Specially Appearing Defendant. This evidence is 17 clearly inadmissible hearsay as it constitutes statements made out of court to support the truth of 18 the propositions made in those statements--that is, that the telephone calls were made by who the 19 recordings say they made. As such, paragraph 3 of the Declaration of Chad Austin must be 20 stricken as inadmissible hearsay. 21 Not only are the statements from the tape recorded telephone calls hearsay, but Mr.

22 Austin's recounting of the statements also constitutes inadmissible hearsay. Paragraph 3 of Mr. 23 Austin's declaration is clearly an out of court statement, not subject to cross examination by 24 Specially Appearing Defendant and contains statements offered to prove the truth of the matters 25 asserted therein. As such, paragraph 3 of Mr. Austin's declaration constitutes inadmissible hearsay 26 and must be stricken. 27 / / / 28 / / /
S0078939.DOC

-3-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 4 of 22

1

Further, Mr. Austin lacks the requisite first-hand knowledge of the telephone calls

2 purportedly made, as he did not directly perceive the telephone call itself which is the subject of 3 his testimony. Mr. Austin's testimony regarding the telephone call contained in paragraph 3 of his 4 declaration must therefore be stricken. 5 6 2. Declaration of Chad Austin, Paragraph 4: Specially Appearing Defendant objects to

7 Paragraph 4 of the Declaration of Chad Austin which states: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 "One (1) of the unlawful prerecorded telemarketing calls complained of in this action, which was made on December 9, 2003 at 10:19 a.m., was what clearly appeared to be a prerecorded telemarketing call. The prerecorded message stated that it was made on behalf of "Harrah's Rincon Casino," located in Valley Center, San Diego County, California. My investigation has revealed that Harrah's Rincon Casino is owned by the Rincon band of Mission Indians and operated by one or more of several Harrah's entities, including but not necessarily limited to defendant HARRAH'S ENTERTAINMENT, Inc. (a Delaware corporation), HARRAH'S OPERATING COMPANY, Inc. (a Delaware corporation), HARRAH'S MARKETING SERVICES CORPORATION (a Nevada corporation) and HARRAH'S LICENSE COMPANY, LLC (a Nevada limited liability company). However, discovery will ultimately be required in order to determine exactly which Harrah's entity operates the Harrah's Rincon Casino. A true and correct verbatim transcript of the December 9, 2003 at 10:19 a.m. call is attached here to as Exhibit B." Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

24 objects on the grounds that the information contained in paragraph 4 of the Declaration of Chad 25 Austin is inadmissible hearsay and lacks proper foundation. Federal Rule of Evidence 801 26 provides that hearsay is "a statement, other than one made by the declarant while testifying at the 27 trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 28 / / /
S0078939.DOC

-4-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 5 of 22

1 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 2 assertion[s]." (Fed.R.Evid. 801(a).) 3 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

4 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) The 5 mere fact a statement was reproduced by electronic voice or video recording does not alter its 6 status as hearsay. (See, United States v. Lopez, 584 F2d 1175, 1179 (2nd Cir. 1978) [taped 7 telephone conversation constitutes hearsay]; United States v. Dorrell, 758 F2d 427, 434 (9th Cir. 8 1985) [statements recorded on video tape constitute hearsay]; see also, Duluth News-Tribune v. 9 Mesabi Publ., 84 F.3d 1093, 1098 (8th Cir. 1996) ["the vague evidence of misdirected phone calls 10 and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross11 examination of the caller or sender."].) 12 The Federal Rules of Evidence further provide that "[a] witness may not testify to a matter

13 unless evidence is introduced sufficient to support a finding that the witness has personal 14 knowledge of the matter." (Fed.R.Evid. 602.) The personal knowledge requirement reflects the 15 common law's judicious demand for the most reliable sources of information. (See, Fed.R.Evid. 16 602, Adv. Comm. Notes (1972); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 17 1028 (9th Cir. 2001) ["It is not enough for a witness to tell all [he] knows; [he] must know all [he] 18 tells."].) The testimony of a lay witness must be based upon what he or she actually observed or 19 perceived through his or her own senses. That is, the witness must have first-hand knowledge 20 acquired by directly perceiving the event that is the subject of his or her testimony. (See, 21 Fed.R.Evid. 602, Adv. Comm. Notes (1972) [The rule requiring that a witness who testifies to a 22 fact which can be perceived by the senses must have had an opportunity to observe, and must have 23 actually observed the fact is a most pervasive manifestation of the common law insistence on the 24 most reliable sources of information."]; SEC v. Singer, 786 F.Supp. 1158, 1167 (S.D.N.Y. 1992).) 25 The statement made in the prerecorded telephone call that the call was made on behalf of

26 "Harrah's Rincon Casino" is clearly an out of court statement offered to prove the truth of the 27 matter asserted. The statement is offered by KINDER through the Declaration of Chad Austin, to 28 / / /
S0078939.DOC

-5-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 6 of 22

1 prove that the call was in fact made by "Harrah's Rincon Casino." Therefore, paragraph 4 of the 2 Declaration of Chad Austin constitutes inadmissible hearsay and must be stricken. 3 Not only are the statements from the tape recorded telephone calls hearsay, but Mr.

4 Austin's recounting of the statements also constitutes inadmissible hearsay. Paragraph 4 of Mr. 5 Austin's declaration is clearly an out of court statement, not subject to cross examination by 6 Specially Appearing Defendant and contains statements offered to prove the truth of the matters 7 asserted therein. As such, paragraph 4 of Mr. Austin's declaration constitutes inadmissible hearsay 8 and must be stricken. 9 Further, Mr. Austin lacks the requisite first-hand knowledge of the telephone call

10 purportedly made as he did not directly perceive the telephone call itself which is the subject of his 11 testimony. Mr. Austin's testimony regarding the telephone call contained in paragraph 4 of his 12 declaration therefore lacks the proper foundation of personal knowledge and must be stricken. 13 14 3. Declaration of Chad Austin, Paragraph 5: Specially Appearing Defendant objects to

15 Paragraph 5 of the Declaration of Chad Austin which states: 16 17 18 19 20 21 22 "One (1) of the unlawful prerecorded telemarketing calls complained of in this action, which was made on February 15, 2007 at 2:53 p.m., included what clearly appeared to be a man's prerecorded voice. The prerecorded voice message promoted the Harrah's Las Vegas Casino. The gentleman said in the prerecorded message that he was "Scott with Harrah's Entertainment." A true and correct verbatim transcript of that prerecorded message is attached hereto as Exhibit C." Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

23 objects on the grounds that the information contained in paragraph 5 of the Declaration of Chad 24 Austin is inadmissible hearsay and lacks proper foundation. Federal Rule of Evidence 801 25 provides that hearsay is "a statement, other than one made by the declarant while testifying at the 26 trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 27 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 28 assertion[s]." (Fed.R.Evid. 801(a).)
S0078939.DOC

-6-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 7 of 22

1

Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

2 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) The 3 mere fact a statement was reproduced by electronic voice or video recording does not alter its 4 status as hearsay. (See, United States v. Lopez, 584 F2d 1175, 1179 (2nd Cir. 1978) [taped 5 telephone conversation constitutes hearsay]; United States v. Dorrell, 758 F2d 427, 434 (9th Cir. 6 1985) [statements recorded on video tape constitute hearsay]; see also, Duluth News-Tribune v. 7 Mesabi Publ., 84 F.3d 1093, 1098 (8th Cir. 1996) ["the vague evidence of misdirected phone calls 8 and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross9 examination of the caller or sender."].) 10 The Federal Rules of Evidence further provide that "[a] witness may not testify to a matter

11 unless evidence is introduced sufficient to support a finding that the witness has personal 12 knowledge of the matter." (Fed.R.Evid. 602.) The personal knowledge requirement reflects the 13 common law's judicious demand for the most reliable sources of information. (See, Fed.R.Evid. 14 602, Adv. Comm. Notes (1972); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 15 1028 (9th Cir. 2001) ["It is not enough for a witness to tell all [he] knows; [he] must know all [he] 16 tells."].) The testimony of a lay witness must be based upon what he or she actually observed or 17 perceived through his or her own senses. That is, the witness must have first-hand knowledge 18 acquired by directly perceiving the event that is the subject of his or her testimony. (See, 19 Fed.R.Evid. 602, Adv. Comm. Notes (1972) [The rule requiring that a witness who testifies to a 20 fact which can be perceived by the senses must have had an opportunity to observe, and must have 21 actually observed the fact is a most pervasive manifestation of the common law insistence on the 22 most reliable sources of information."]; SEC v. Singer, 786 F.Supp. 1158, 1167 (S.D.N.Y. 1992).) 23 The statement made in the prerecorded telephone call that the call was made on behalf of

24 "Harrah's Entertainment" is clearly an out of court statement. The statement is offered by 25 KINDER through the Declaration of Chad Austin, to prove that the call was in fact made by 26 "Harrah's Entertainment." Therefore, paragraph 5 of the Declaration of Chad Austin constitutes 27 inadmissible hearsay and must be stricken. 28 / / /
S0078939.DOC

-7-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 8 of 22

1

Not only are the statements from the tape recorded telephone calls hearsay, but Mr.

2 Austin's recounting of the statements also constitutes inadmissible hearsay. Paragraph 5 of Mr. 3 Austin's declaration is clearly an out of court statement, not subject to cross examination by 4 Specially Appearing Defendant and contains statements offered to prove the truth of the matters 5 asserted therein. As such, paragraph 5 of Mr. Austin's declaration constitutes inadmissible hearsay 6 and must be stricken. 7 Further, Mr. Austin lacks the requisite first-hand knowledge of the telephone call

8 purportedly made as he did not directly perceive the telephone call itself which is the subject of his 9 testimony. Mr. Austin's testimony regarding the telephone call contained in paragraph 5 of his 10 declaration must therefore be stricken. 11 12 4. Declaration of Chad Austin, Paragraph 6: Specially Appearing Defendant objects to

13 Paragraph 6 of the Declaration of Chad Austin which states: 14 15 16 17 18 19 20 "On December 11, 2007, I accessed the website for the North County times and found an article entitled "Gambling growth could lead to unfriendly competition," a true and correct copy of which is attached hereto as Exhibit D, which stated, inter alia, "Rincon, which has partnered with Las Vegas giant Harrah's Entertainment, has said that its casino with 1,600 slot machines can't compete with its neighbors without more slots." Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

21 objects on the grounds that the information contained in paragraph 6 of the Declaration of Chad 22 Austin is inadmissible hearsay and lacks proper foundation. Federal Rule of Evidence 801 23 provides that hearsay is "a statement, other than one made by the declarant while testifying at the 24 trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 25 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 26 assertion[s]." (Fed.R.Evid. 801(a).) Web postings are "statements" subject to the hearsay 27 exclusion." (United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) [holding statements 28 posed on web sites by nonparties were inadmissible hearsay].) Federal Rule of Evidence 802
S0078939.DOC

-8-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 9 of 22

1 provides that hearsay evidence is not admissible unless it falls under a statutorily enumerated 2 exception to the hearsay exclusion. (Fed.R.Evid. 802.) 3 The Federal Rules of Evidence further provide that "[a] witness may not testify to a matter

4 unless evidence is introduced sufficient to support a finding that the witness has personal 5 knowledge of the matter." (Fed.R.Evid. 602.) The personal knowledge requirement reflects the 6 common law's judicious demand for the most reliable sources of information. (See, Fed.R.Evid. 7 602, Adv. Comm. Notes (1972); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 8 1028 (9th Cir. 2001) ["It is not enough for a witness to tell all [he] knows; [he] must know all [he] 9 tells."].) The testimony of a lay witness must be based upon what he or she actually observed or 10 perceived through his or her own senses. That is, the witness must have first-hand knowledge 11 acquired by directly perceiving the event that is the subject of his or her testimony. (See, 12 Fed.R.Evid. 602, Adv. Comm. Notes (1972) [The rule requiring that a witness who testifies to a 13 fact which can be perceived by the senses must have had an opportunity to observe, and must have 14 actually observed the fact is a most pervasive manifestation of the common law insistence on the 15 most reliable sources of information."]; SEC v. Singer, 786 F.Supp. 1158, 1167 (S.D.N.Y. 1992).) 16 The statement made on the North County Times website that "Rincon, which has partnered

17 with Las Vegas giant Harrah's Entertainment" is without doubt an out of court statement made to 18 prove the truth of the matter asserted. The statement is offered by KINDER through the 19 Declaration of Chad Austin, to prove that the Rincon Casino is related to and has a partnership 20 with Harrah's Entertainment. Since this statement is clearly hearsay, and not subject to any 21 enumerated exception, paragraph 6 of the Declaration of Chad Austin must be stricken. 22 Not only are the statements on the website inadmissible hearsay, but Mr. Austin's

23 recounting of the statements also constitutes inadmissible hearsay. Paragraph 6 of Mr. Austin's 24 declaration is clearly an out of court statement, not subject to cross examination by Specially 25 Appearing Defendant and contains statements offered to prove the truth of the matters asserted 26 therein. As such, paragraph 6 of Mr. Austin's declaration constitutes inadmissible hearsay and 27 must be stricken. 28 / / /
S0078939.DOC

-9-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 10 of 22

1

Further, the statement made in the on-line article lacks proper foundation. In order to

2 testify to a given fact, a lay witness must have personal knowledge of the matter. There is no 3 evidence presented that the author of the on-line statement has personal knowledge--that is, direct 4 knowledge based on facts actually perceived--of any operating agreement or partnership between 5 the Rincon Casino and Harrah's Entertainment. The utter lack of the competency of this evidence 6 is laughable. Paragraph 6 of the Declaration of Chad Austin must therefore be stricken. 7 8 5. Declaration of Chad Austin, Paragraph 7: Specially Appearing Defendant objects to

9 Paragraph 7 of the Declaration of Chad Austin which states: 10 11 12 13 14 15 16 17 18 19 20 21 22 "On December 3, 2007, I accessed the Harrah's website. Specifically, under "CORPORATE: INVESTOR RELATIONS ­ PROPERTY STATS" [http://investor.harrahs.com/[phoenix.zhtml?c=84772&p=irol-PropertyStats], I found a listing of properties and various statistics related thereto. At the top of the table read "HARRAH'S ENTERTAINMENT > INVESTOR RELATIONS > PROPERT STATS." . . . The subheading read "STATISTICAL DATA AS OF JUNE 30, 2007." One of the entries in that table related to "Rincon," referring to Harrah's Rincon Casino. According to the table, Harrah's Rincon Casino has 61 table games, 12 poker tables, 1,600 slot machines, 69,949 square feet of casino, 552 hotel room (non-suite), 101 hotel suites, 653 total rooms/suites and 7,648 convention center square feet. A true and correct copy of the website printout is attached hereto as Exhibit E." Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

23 objects on the grounds that the information contained in paragraph 7 of the Declaration of Chad 24 Austin is inadmissible hearsay. Federal Rule of Evidence 801 provides that hearsay is "a 25 statement, other than one made by the declarant while testifying at the trial or hearing, offered in 26 evidence to prove the truth of the matter asserted." (Fed.R.Evid. 801(c).) Federal Rule 801 27 further provides that a "statement" includes both "oral [and] written assertion[s]." (Fed.R.Evid. 28 / / /
S0078939.DOC

-10-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 11 of 22

1 801(a).) Web postings are "statements" subject to the hearsay exclusion." (United States v. 2 Jackson, 208 F.3d 633, 637 (7th Cir. 2000).) 3 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

4 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) 5 The statement reflected in paragraph 7 of the Declaration of Chad Austin is clearly an out

6 of court statement made to prove the truth of the matter asserted. The statement is offered by 7 KINDER through the Declaration of Chad Austin, to prove that the Rincon Casino is related to 8 and has a partnership with Harrah's Entertainment. Since this statement is clearly hearsay, and not 9 subject to any enumerated exception, paragraph 7 of the Declaration of Chad Austin must be 10 stricken. 11 12 6. Declaration of Chad Austin, Paragraph 8: Specially Appearing Defendant objects to

13 Paragraph 8 of the Declaration of Chad Austin which states: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
S0078939.DOC

On or about December 11, 2007, I accessed, via the internet, the document a true and correct copy of which is attached hereto as Exhibit F. The document, entitled "Capturing the Benefits of Casino Gaming: An Economic Development Initiative for Rhode Island Submitted by Harrah's Entertainment, Inc. to the Rhode Island Special House Commission to Study Gaming, March 14, 2003" [http://www.rilin.state.ri.us/gen_assembly/gaming/whiteversion.doc] was accessed by me on the State of Rhode Island General Assembly's website, http://www.rilin.state.ri.us/gen_assembly/. In that document appeared the following language: "In December 2002, Harrah's Entertainment, Inc. ("Harrah's"), the owner/operator of 26 casinos in 13 states, announced a partnership with Rhode Island's Narragansett Tribe..." (Page 1, third full paragraph). On Page 10 of that document, in the third paragraph, was the following language: "Harrah's has witnessed it on tribal lands with the Ak Chin Indian reservation outside of Phoenix, the Cherokee reservation in North Carolina, the Prairie Band of Pottawatomi Indians in Kansas and the Rincon band of Mission -11CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 12 of 22

1 2 3 4

Indians outside of San Diego. And, the same can be said for Harrah's other properties in Missouri, Louisiana, Atlantic City, new Jersey, Nevada, and Iowa." [Bold and italics added for emphasis.] Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

5 objects on the grounds that the information contained in paragraph 8 of the Declaration of Chad 6 Austin is completely irrelevant, constitutes inadmissible hearsay, and lacks proper foundation. 7 Federal Rule of Evidence 402 provides that only relevant evidence is admissible. (Fed.R.Evid. 8 402.) 9 Federal Rule of Evidence 801 provides that hearsay is "a statement, other than one made

10 by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the 11 matter asserted." (Fed.R.Evid. 801(c).) Federal Rule 801 further provides that a "statement" 12 includes both "oral [and] written assertion[s]." (Fed.R.Evid. 801(a).) Web postings are 13 "statements" subject to the hearsay exclusion." (United States v. Jackson, 208 F.3d 633, 637 (7th 14 Cir. 2000).) 15 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

16 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) 17 The Federal Rules of Evidence further provide that "[a] witness may not testify to a matter

18 unless evidence is introduced sufficient to support a finding that the witness has personal 19 knowledge of the matter." (Fed.R.Evid. 602.) The personal knowledge requirement reflects the 20 common law's judicious demand for the most reliable sources of information. (See, Fed.R.Evid. 21 602, Adv. Comm. Notes (1972); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 22 1028 (9th Cir. 2001) ["It is not enough for a witness to tell all [he] knows; [he] must know all [he] 23 tells."].) The testimony of a lay witness must be based upon what he or she actually observed or 24 perceived through his or her own senses. That is, the witness must have first-hand knowledge 25 acquired by directly perceiving the event that is the subject of his or her testimony. (See, 26 Fed.R.Evid. 602, Adv. Comm. Notes (1972) [The rule requiring that a witness who testifies to a 27 fact which can be perceived by the senses must have had an opportunity to observe, and must have 28 / / /
S0078939.DOC

-12-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 13 of 22

1 actually observed the fact is a most pervasive manifestation of the common law insistence on the 2 most reliable sources of information."]; SEC v. Singer, 786 F.Supp. 1158, 1167 (S.D.N.Y. 1992).) 3 The statements contained in paragraph 8 of the Declaration of Chad Austin, reflecting

4 statements contained on the State of Rhode Island General Assembly's website are completely 5 irrelevant to the present action. It appears clear that Mr. Austin simply conducted an internet 6 search using terms including "Harrah's" and has simply regurgitated the results of this internet 7 search in his declaration. Such statements cannot possibly be relevant to Specially Appearing 8 Defendant's motion to dismiss. 9 Further, the statements contained in Rhode Island General Assembly's website constitute

10 inadmissible hearsay. The statements set forth in Mr. Austin's declaration are clearly out of court 11 statements and are offered to support the propositions contained therein--that is, that Specially 12 Appearing Defendant is somehow connected to the Rincon Casino. 13 Not only are the statements on the website inadmissible hearsay, but Mr. Austin's

14 recounting of the statements also constitutes inadmissible hearsay. Paragraph 8 of Mr. Austin's 15 declaration is clearly an out of court statement, not subject to cross examination by Specially 16 Appearing Defendant and contains statements offered to prove the truth of the matters asserted 17 therein. As such, paragraph 8 of Mr. Austin's declaration constitutes inadmissible hearsay and 18 must be stricken. 19 Further, the statements made on the Rhode Island General Assembly's website lack proper

20 foundation. In order to testify to a given fact, a lay witness must have personal knowledge of the 21 matter. There is no evidence presented that the author of the on-line statement has personal 22 knowledge--that is, direct knowledge based on facts actually perceived--of the facts contained on 23 the website. The utter lack of the competency and relevance of this evidence is apparent on its 24 face. Paragraph 8 of the Declaration of Chad Austin must therefore be stricken. 25 / / / 26 / / / 27 / / / 28 / / /
S0078939.DOC

-13-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 14 of 22

1 7.

Declaration of Chad Austin, Paragraph 9: Specially Appearing Defendant objects to

2 Paragraph 9 of the Declaration of Chad Austin which states: 3 4 5 6 7 8 9 On December 20, 2007, I accessed the website for Harrah's Rincon Casino in Valley Center, San Diego County, California. [http://www.harrahs.com/casinos/harrahs-rincon-san-diego/hotel-casino/propertyhome.shtml] In the window in the top, center of the page immediately read "Harrah's Entertainment ® Loading Content." The window then said "Las Vegas Action, San Diego Style!" Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

10 objects on the grounds that the information contained in paragraph 9 of the Declaration of Chad 11 Austin is inadmissible hearsay. Federal Rule of Evidence 801 provides that hearsay is "a 12 statement, other than one made by the declarant while testifying at the trial or hearing, offered in 13 evidence to prove the truth of the matter asserted." (Fed.R.Evid. 801(c).) Federal Rule 801 14 further provides that a "statement" includes both "oral [and] written assertion[s]." (Fed.R.Evid. 15 801(a).) Web postings are "statements" subject to the hearsay exclusion." (United States v. 16 Jackson, 208 F.3d 633, 637 (7th Cir. 2000).) 17 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

18 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) 19 The statement reflected in paragraph 9 of the Declaration of Chad Austin is clearly an out

20 of court statement made to prove the truth of the matter asserted. The statement is offered by 21 KINDER through the Declaration of Chad Austin, to prove that the Rincon Casino is related to 22 and has a partnership with Harrah's Entertainment. Since this statement is clearly hearsay, and not 23 subject to any enumerated exception, paragraph 9 of the Declaration of Chad Austin must be 24 stricken. 25 / / / 26 / / / 27 / / / 28 / / /
S0078939.DOC

-14-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 15 of 22

1 8.

Declaration of Chad Austin, Paragraph 10: Specially Appearing Defendant objects to

2 Paragraph 10 of the Declaration of Chad Austin which states: 3 4 5 6 7 It is absolutely untrue that Plaintiff filed a "Declaration of James M. Kinder in Support of Filing By Vexatious Litigant in" in James M. Kinder v. Sprint PCS Assets, LLC, et al., United States District Court, Southern District of California, Case No. 07CV2049 WQH JMA. No such declaration was filed in that case. Grounds for Objection: Specially Appearing Defendant's Notice of Lodgment of

8 Exhibits filed in support of the motion to dismiss includes the following exhibit: 9 10 11 12 Exhibit 3: A true and correct copy of the Declaration of James M. Kinder in Support of Filing by Vexatious Litigant, dated May 9, 2007, filed in Kinder v. Equidata, Inc., San Diego County Superior Court Case No. 37-2007-00066491CU-MC-CTL.

13 While Mr. Austin may be correct that no such declaration was filed in the case of Kinder v. Sprint 14 PCS Assets, LLC, Specially Appearing Defendant attached a declaration of KINDER from the case 15 of Kinder v. Equidata, Inc., a true and correct copy of which was attached to the Notice of 16 Lodgment filed in support of the motion to dismiss as Exhibit 3. 17 18 9. Declaration of Chad Austin, Paragraph 11: Specially Appearing Defendant objects to

19 Paragraph 11 of the Declaration of Chad Austin which states: 20 21 22 23 24 25 26 27 28
S0078939.DOC

It is true that, in some previous TCPA matters, I filed Declarations by my client to support the initial complaint filed herewith. That is because the clerks' office at the San Diego Superior Court ("civil business office") erroneously required same before they would accept a new filing. After jumping through the unnecessary hoop several times, as in James M. Kinder v. Allied Interstate, San Diego Superior Court Case No. GIC 850543, which filing was approved by then Presiding Judge Janis Sammartino on February 26, 2007, the civil business no longer required my client to submit a declaration to be approved by the Presiding Judge. At some point on a date I cannot recall, a clerk with the court stated that the Court's in-house legal
CASE NO. 07 CV 2226 DMS (POR)

-15-

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 16 of 22

1 2 3 4 5

department had advised them that as long as my client filed through counsel, no approval from the Presiding Judge was necessary. Since then, no such approval has been required by the court in any new filing by Mr. Kinder, whether the action was for violations of the TCPA or not. Grounds for Objection: Federal Rule of Evidence 402 states that only relevant evidence

6 is admissible. (Fed.R.Evid. 402.) The statements made by Mr. Austin in paragraph 11 of his 7 declaration are wholly irrelevant to the present action. Whether he filed declarations in support of 8 KINDER in previous actions has no bearing whatsoever on any issue in the present case. 9 Accordingly, paragraph 11 of the Declaration of Chad Austin must be stricken. 10 11 10. Declaration of Chad Austin, Paragraph 12: Specially Appearing Defendant objects to

12 Paragraph 12 of the Declaration of Chad Austin which states: 13 14 15 16 17 18 19 20 21 "The fact that no court approval should have ever been required when my client filed through counsel was ratified by then Presiding Judge Sammartino on June 28, 2007. In James M. Kinder v. Adecco, Inc., San Diego Superior Court Case no. GIC882000, Adecco filed a Notice of Vexatious Litigant, affecting an automatic stay of that litigation. I timely filed an opposition and Judge Sammartino lifted the stay, holding that the pre-filing order and CCP § 391.7 did not apply because Mr. Kinder had filed that action through counsel and not In Propria Persoan. A true and correct copy of Judge Sammartino's Order is attached hereto as Exhibit A." Grounds for Objection: Federal Rule of Evidence 402 states that only relevant evidence

22 is admissible. (Fed.R.Evid. 402.) The statements made by Mr. Austin in paragraph 12 of his 23 declaration are wholly irrelevant to the present action. Issues litigated by KINDER in prior cases 24 have no bearing whatsoever on any issue in the present case. Accordingly, paragraph 12 of the 25 Declaration of Chad Austin must be stricken. 26 / / / 27 / / / 28 / / /
S0078939.DOC

-16-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 17 of 22

1

OBJECTIONS TO EVIDENCE SUBMITTED BY JAMES M. KINDER IN SUPPORT OF

2 HIS OPPOSITION TO SPECIALLY APPEARING DEFENDANT'S MOTION TO DISMISS 3 11. Exhibit B: Specially Appearing Defendant objects to the introduction into evidence of

4 Exhibit B, filed in support of James M. Kinder's opposition to Specially Appearing Defendant's 5 motion to dismiss which is "A true and correct verbatim transcript of the December 9, 2003 at 6 10:19 a.m. prerecorded telemarketing call made by Defendant." 7 Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

8 objects on the grounds that Exhibit B constitutes inadmissible hearsay. Federal Rule of Evidence 9 801 provides that hearsay is "a statement, other than one made by the declarant while testifying at 10 the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 11 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 12 assertion[s]." (Fed.R.Evid. 801(a).) The mere fact a statement was reproduced by electronic voice 13 or video recording does not alter its status as hearsay. (See, United States v. Lopez, 584 F2d 1175, 14 1179 (2nd Cir. 1978) [taped telephone conversation constitutes hearsay]; United States v. Dorrell, 15 758 F2d 427, 434 (9th Cir. 1985) [statements recorded on video tape constitute hearsay]; see also, 16 Duluth News-Tribune v. Mesabi Publ., 84 F.3d 1093, 1098 (8th Cir. 1996) ["the vague evidence of 17 misdirected phone calls and mail is hearsay of a particularly unreliable nature given the lack of an 18 opportunity for cross-examination of the caller or sender."].) 19 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

20 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) 21 Federal Rule of Evidence 1002 provides, "[t]o prove the content of a writing, recording, or

22 photograph, the original writing, recording or photograph is required, except as otherwise 23 provided in these rules or by Act of Congress." (Fed.R.Evid. 1002.) 24 The transcript of the prerecorded telephone call purportedly made to KINDER clearly

25 constitutes a "statement" within the meaning of Federal Rule 801(a). Further, the transcript is 26 being offered to prove the truth of the statements made therein, namely, that the identified caller in 27 the transcript did in fact call KINDER. Because the transcript is an out of court statement offered 28 into evidence to prove the truth of the matter asserted, it must be excluded.
S0078939.DOC

-17-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 18 of 22

1

Further, the transcript violates Federal Rule 1002 in that it is not purported to be an

2 original and must be excluded based thereon. 3 4 12. Exhibit C: Specially Appearing Defendant objects to the introduction into evidence of

5 Exhibit C, filed in support of James M. Kinder's opposition to Specially Appearing Defendant's 6 motion to dismiss which is "A true can correct verbatim transcript of the February 15, 2007 at 2:53 7 p.m. prerecorded telemarketing call made by Defendant." 8 Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

9 objects on the grounds that Exhibit C constitutes inadmissible hearsay. Federal Rule of Evidence 10 801 provides that hearsay is "a statement, other than one made by the declarant while testifying at 11 the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 12 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 13 assertion[s]." (Fed.R.Evid. 801(a).) The mere fact a statement was reproduced by electronic voice 14 or video recording does not alter its status as hearsay. (See, United States v. Lopez, 584 F2d 1175, 15 1179 (2nd Cir. 1978) [taped telephone conversation constitutes hearsay]; United States v. Dorrell, 16 758 F2d 427, 434 (9th Cir. 1985) [statements recorded on video tape constitute hearsay]; see also, 17 Duluth News-Tribune v. Mesabi Publ., 84 F.3d 1093, 1098 (8th Cir. 1996) ["the vague evidence of 18 misdirected phone calls and mail is hearsay of a particularly unreliable nature given the lack of an 19 opportunity for cross-examination of the caller or sender."].) 20 Federal Rule of Evidence 802 provides that hearsay evidence is not admissible unless it

21 falls under a statutorily enumerated exception to the hearsay exclusion. (Fed.R.Evid. 802.) 22 Federal Rule of Evidence 1002 provides, "[t]o prove the content of a writing, recording, or

23 photograph, the original writing, recording or photograph is required, except as otherwise 24 provided in these rules or by Act of Congress." (Fed.R.Evid. 1002.) 25 The transcript of the prerecorded telephone call purportedly made to KINDER clearly

26 constitutes a "statement" within the meaning of Federal Rule 801(a). Further, the transcript is 27 being offered to prove the truth of the statements made therein, namely, that the identified caller in 28 the transcript did in fact call KINDER. Because the transcript is an out of court statement offered
S0078939.DOC

-18-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 19 of 22

1 into evidence to prove the truth of the matter asserted, it must be excluded. 2 Further, the transcript violates Federal Rule 1002 in that it is not purported to be an

3 original and must be excluded based thereon 4 5 13. Exhibit D: Specially Appearing Defendant objects to the introduction into evidence of

6 Exhibit D, filed in support of James M. Kinder's opposition to Specially Appearing Defendant's 7 motion to dismiss which is "A true and correct copy of the article entitled 'Gambling growth could 8 lead to unfriendly competition' from the North County Times, access via the North County Times 9 website on December 11, 2007." 10 Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

11 objects on the grounds that Exhibit D constitutes inadmissible hearsay. Federal Rule of Evidence 12 801 provides that hearsay is "a statement, other than one made by the declarant while testifying at 13 the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 14 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 15 assertion[s]." (Fed.R.Evid. 801(a).) Web postings are "statements" subject to the hearsay 16 exclusion." (United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) [holding statements 17 posed on web sites by nonparties were inadmissible hearsay].) Federal Rule of Evidence 802 18 provides that hearsay evidence is not admissible unless it falls under a statutorily enumerated 19 exception to the hearsay exclusion. (Fed.R.Evid. 802.) 20 Federal Rule of Evidence 1002 provides, "[t]o prove the content of a writing, recording, or

21 photograph, the original writing, recording or photograph is required, except as otherwise 22 provided in these rules or by Act of Congress." (Fed.R.Evid. 1002.) 23 The copy of the article from the North County Times' website is clearly a written statement

24 within the meaning of Federal Rule 801(a). Further, the statements in the article are being offered 25 to prove the truth of the matters asserted therein, namely, that there is some connection or 26 partnership between Specially Appearing Defendant and the Rincon Casino. Because the article is 27 an out of court statement offered into evidence to prove the truth of the matter asserted, it must be 28 excluded.
S0078939.DOC

-19-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 20 of 22

1

Further, the copy of the article violates Federal Rule 1002 in that it is not purported to be

2 an original and must be excluded based thereon. 3 4 14. Exhibit E: Specially Appearing Defendant objects to the introduction into evidence of

5 Exhibit E, filed in support of James M. Kinder's opposition to Specially Appearing Defendant's 6 motion to dismiss which is "A true and correct printout from the Harrah's website, accessed on 7 December 3, 2007." 8 Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

9 objects on the grounds that Exhibit E constitutes inadmissible hearsay. Federal Rule of Evidence 10 801 provides that hearsay is "a statement, other than one made by the declarant while testifying at 11 the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 12 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 13 assertion[s]." (Fed.R.Evid. 801(a).) Web postings are "statements" subject to the hearsay 14 exclusion." (United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) [holding statements 15 posed on web sites by nonparties were inadmissible hearsay].) Federal Rule of Evidence 802 16 provides that hearsay evidence is not admissible unless it falls under a statutorily enumerated 17 exception to the hearsay exclusion. (Fed.R.Evid. 802.) 18 Federal Rule of Evidence 1002 provides, "[t]o prove the content of a writing, recording, or

19 photograph, the original writing, recording or photograph is required, except as otherwise 20 provided in these rules or by Act of Congress." (Fed.R.Evid. 1002.) 21 The copy of the printout from Harrah's website is clearly a written statement within the

22 meaning of Federal Rule 801(a). Further, the statements contained in the website printout are 23 being offered to prove the truth of the matters asserted therein, namely, that there is some 24 connection or partnership between Specially Appearing Defendant and the Rincon Casino. 25 Because the website printout is an out of court statement offered into evidence to prove the truth 26 of the matter asserted, it must be excluded. 27 Further, the website printout violates Federal Rule 1002 in that it is not purported to be an

28 original and must be excluded based thereon.
S0078939.DOC

-20-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 21 of 22

1 15.

Exhibit F: Specially Appearing Defendant objects to the introduction into evidence of

2 Exhibit F, filed in support of James M. Kinder's opposition to Specially Appearing Defendant's 3 motion to dismiss which is "A true and correct copy of the document accessed on or about 4 December 11, 2007 from the website for the State of Rhode Island General Assembly, submitted 5 by Harrah's Entertainment, Inc. entitled "Capturing the Benefits of Casino Gaming: An Economic 6 Development Initiative for Rhode Island Submitted by Harrah's Entertainment, Inc. to the Rhode 7 Island Special House Commission to Study Gaming, March 14, 2003." 8 Grounds for Objection: Specially Appearing Defendant Harrah's Entertainment, Inc.

9 objects on the grounds that Exhibit F constitutes inadmissible hearsay. Federal Rule of Evidence 10 801 provides that hearsay is "a statement, other than one made by the declarant while testifying at 11 the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Fed.R.Evid. 12 801(c).) Federal Rule 801 further provides that a "statement" includes both "oral [and] written 13 assertion[s]." (Fed.R.Evid. 801(a).) Web postings are "statements" subject to the hearsay 14 exclusion." (United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) [holding statements 15 posed on web sites by nonparties were inadmissible hearsay].) Federal Rule of Evidence 802 16 provides that hearsay evidence is not admissible unless it falls under a statutorily enumerated 17 exception to the hearsay exclusion. (Fed.R.Evid. 802.) 18 Federal Rule of Evidence 1002 provides, "[t]o prove the content of a writing, recording, or

19 photograph, the original writing, recording or photograph is required, except as otherwise 20 provided in these rules or by Act of Congress." (Fed.R.Evid. 1002.) 21 The copy of the printout from State of Rhode Island General Assembly's website is clearly

22 a written statement within the meaning of Federal Rule 801(a). Further, the statements contained 23 in the website printout are being offered to prove the truth of the matters asserted therein, namely, 24 that there is some connection or partnership between Specially Appearing Defendant and the 25 Rincon Casino. Because the website printout is an out of court statement offered into evidence to 26 prove the truth of the matter asserted, it must be excluded. 27 / / / 28 / / /
S0078939.DOC

-21-

CASE NO. 07 CV 2226 DMS (POR)

Case 3:07-cv-02226-DMS-AJB

Document 14-3

Filed 12/28/2007

Page 22 of 22

1

Further, the website printout violates Federal Rule 1002 in that it is not purported to be an

2 original and must be excluded based thereon. 3 4 5 6 Dated: December 28, 2007 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
S0078939.DOC

SHEA STOKES, ALC

By: /s/Ronald R. Giusso Maria C. Roberts Ronald R. Giusso Attorneys for Specially Appearing Defendant HARRAH'S ENTERTAINMENT, INC.

-22-

CASE NO. 07 CV 2226 DMS (POR)