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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

K ELLY / W ARNER , PLLC 404 S. Mill Ave, Suite C-201 Tempe, Arizona 85281 Aaron M. Kelly, Esq. (AZ Bar #025043) Email: aaron@kellywarnerlaw.com Daniel R. Warner, Esq. (AZ Bar # 26503) Email: dan@kellywarnerlaw.com Tel: 480-331-9397 Fax: 1-866-961-4984 Attorneys for Plaintiff

IN SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA INTRAVAS, INC, a California corporation, d.b.a. REVIEW BOOST, Plaintiff, v. JOHN DOES 1-10; JANE DOES 1-10; ABC PARTNERSHIPS I-X; DEF LIMITED LIABILITY COMPANIES I-X; and XYZ CORPORATIONS I-X, Defendants.

NO. CV2012-013872 PLAINTIFFS REPLY TO XCENTRIC VENTURES, LLCS RESPONSE TO MOTION TO COMPEL XCENTRIC VENTURES, LLC TO COMPLY WITH SUBPOENA DUCES TECUM

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Plaintiff, by and through undersigned counsel, hereby replies to Xcentric Ventures, LLCs (the Operator) Response to Plaintiffs Motion to Compel the Operator to comply with the Subpoena Duces Tecum issued by this Court on 10/26/2012 (the Subpoena). The Court must grant Plaintiffs Motion to Compel because (1) the second requirement of the Mobilisa criteria has been satisfied, and Plaintiff would survive a hypothetical motion for summary judgment; and (2) the Posting is capable of being proven false and does not enjoy protection under the First Amendment as an opinion. This Motion is supported by the following Memorandum of Points and 1

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

Authorities and all pleadings on file with the Court, which are all hereby incorporated by reference. MEMORANDUM OF POINTS AND AUTHORITIES I. Misstatement regarding Plaintiffs attempt to meet and confer. The Operator incorrectly states that Plaintiffs counsel did not, in fact, meet and confer with Xcentrics counsel before filing the instant motion. In a series of emails, counsel for the parties attempted to resolve the issue without intervention from the Court. However, the Operator not only directed Plaintiff to file the Motion but also gave Plaintiff an affidavit form to use. The affidavit form, however, contained blanket statements that no business person could sign without committing perjury. No reasonable business person can swear to have never at any time made any promises to any customer . . . . Even the most cautious business people (the undersigned included) make qualified promises and/or projections. Additionally, Plaintiff clearly cannot swear that it never received

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any complaint because the Posting clearly demonstrates otherwise. Similarly, Plaintiff cannot swear that it never at any time received $500 from a customer who later complained about only having received 1 review because the Posting clearly shows that the Defendant made this very same complaint. II. The second requirement of the Mobilisa criteria has been satisfied. The Operator appears to cite some obscure case law from California, which discusses a negative pregnant to support its position. However, when applying

Arizona law, which controls, to the issue, it is evident that the second requirement of the Mobilisa criteria has been satisfied, and that Plaintiff would survive a hypothetical

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

motion for summary judgment. Summary judgment is not appropriate when the trial judge is required to evaluate the credibility of witnesses with differing versions of material facts, . . . weigh the quality of documentary or other evidence, and . . . choose among competing or conflicting inferences. Orme Sch. v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1008 (1990). In defamation cases, it is the function of a jury to determine factually whether an allegedly defamatory statement is true. Fendler v. Phoenix

Newspapers Inc., 130 Ariz. 475, 479-80, 636 P.2d 1257, 1261-62 (Ct. App. 1981) (emphasis added). Had there been a dispute over the facts underlying the

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defense of substantial truth, summary judgment would have been improper. Id. (emphasis added). If "a reasonable factfinder could conclude that the contested statement 'impl[ies] an assertion of objective fact,' " then the statement is not protected by the First Amendment. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (U.S. 1990) (emphasis added). In most instances, it is for the jury to determine whether an ordinary reader or listener would believe the statement to be a factual assertion, mere opinion or hyperbole. Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ct. App. 1999) (citation omitted) (emphasis added). The meaning of words and statements should not be construed in isolation; rather, consideration should be given to the context and all surrounding circumstances, including the impression created by the words used and the expression's general tenor. Id. (emphasis added). If the jury finds that a defamatory statement of objective fact (beyond mere hyperbole) exists, it should then consider actual damage to [the plaintiff's] reputation in the real world by measuring the

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

defamatory aspect of [the statement] by its natural and probable effect on the mind of the average recipient. Id. (citation omitted). Summary judgment would be improper at this point because the Posting implies an assertion of objective fact that the Plaintiff made unqualified promises and/or guarantees regarding its services, and a dispute of material fact exists regarding whether Plaintiff made unqualified promises and/or guarantees regarding its services. When considering the Posting as a whole, unlike the Operators improperly suggested piecemeal approach, a reasonable factfinder could conclude that, the Plaintiff not only made unconditional promises regarding its services, but that Plaintiff purposefully, in a dishonest manner, withheld critical information regarding some of the risks that could prevent Plaintiff from delivering the level of service represented. The Posting has the following heading, which calls Plaintiff a rip-off: reviewboost.com reviewboost.com rip-off Internet. The Posting then states that Plaintiff made Lots of promises about being able to post positive reviews to Google. This implies that Plaintiff gave the Defendant one extreme sales pitch. In the context, as a whole, Lots of promises implies that Plaintiff guaranteed it services. However, the Posting goes on state that, [a]fterwards, lots of excuses that you did not hear when they are accepting your money, implying that, based upon the excuses given, Plaintiff should have disclosed to the Defendant that Plaintiff may not be able to deliver the level of service/result as represented, but that Plaintiff did not disclose such risks because Plaintiff was only interest in taking Defendants money. A reasonable factfinder could certainly conclude that the Posting made the foregoing implications. Accordingly, because these implications are false and

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Plaintiff did not make unqualified promises and/or guarantees regarding its services

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

the Court must grant Plaintiffs Motion.

Again, because Plaintiff is not a public

figure/official, the Posting does not pertain to a public concern, and the Posting directly pertains to Plaintiffs honesty/integrity, Plaintiff does not bear the burden of demonstrating the statements are false or capable of being proven false, and the statements are presumed to be false and malicious. See Dombey, 150 Ariz. at 481, 724 P.2d at 567; see also McClinton, 76 Ariz. at 365-366 (holding that, [u]nless the publication in the instant case was privileged or qualifiedly privileged, the proof of publication of the article carried with it the presumption of its falsity and of malice toward the plaintiff and the burden was upon the defendant to prove both the truth of the publication and a lack of malice toward plaintiff). III. The Posting is capable of being proven false and does not enjoy protection under the First Amendment as an opinion. The Operators analysis of whether the Report is capable of being proven false is severely deficient. Again, if "a reasonable factfinder could conclude that the

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contested statement 'impl[ies] an assertion of objective fact,' " then the statement is not protected by the First Amendment. Unelko Corp., 912 F.2d at 1053 (quoting Milkovich, 497 U.S. at 18). The three-part test used in making this determination is: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates the impression, and (3) whether the statement in question is susceptible of being proved true or false. Id. When applying the first part of the three-part test, it is evident that there is no general tenor that negates the Defendants factual implications. The Defendant is not a journalist reporting his observations of some events he witnessed. He went on the

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

Operators website which is called Rip-off Report and made statements that only a former disgruntled client of Plaintiff would make. No casual observer would take the time to post a report on the Operators website warning prospective clients to beware of Plaintiff because Plaintiff makes Lots of promises to get your money, but [a]fterwards, [you will get] lots of excuses that you did not hear when they are accepting your money. There is no general tenor that negates the impression that the defendant was asserting an objective fact. And to make matters worse, the sole

purpose of the Operators website, Rip-off Report, is to allow consumers to share their experiences with other consumers and warn about unsavory businesses and/or people. Similarly, these reasons are also applicable when applying the second part of the three-part test. The language used by the Defendant was not simply loose and figurative commentary on an issue subject to public debate. Although the language is a bit vague, it clearly makes the factual implication that Plaintiff uses unethical means to obtain business. As required by the third part of the three-part test, the Defendants statements are capable of being proven true or false. If the Defendants statements are true, the Defendant should be able to come forward and prove just what type of predatory practices were allegedly used by Plaintiff to gain the Defendants business as a client, including, but not limited to, what Plaintiff allegedly told Defendant or promised the Defendant, the result that was obtained by Plaintiff for Defendant, any concerns the Defendant may have had that were disclosed to Plaintiff, any risks that the Plaintiff should have but failed to disclose to Defendant, Plaintiffs history of obtaining results in cases similar to that of Plaintiffs, who was present during the conversations between

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

the parties, and the existence of any written correspondence between the parties. Accordingly, the Court must grant Plaintiffs motion. IV. CONCLUSION. WHEREFORE, based upon the foregoing, Plaintiff respectfully requests that the Court issue an Order compelling Xcentric Ventures, LLC to comply with the Subpoena, together with such other and further relief as the Court finds necessary and reasonable. RESPECTFULLY submitted this 12TH day of March, 2013.

KELLY / WARNER, PLLC By: /s/ Daniel R. Warner Daniel R. Warner, Esq. 404 S. Mill Ave, Suite C-201 Tempe, Arizona 85281 Attorneys for Plaintiff

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Jill J. Loy A copy of the foregoing e-filed and a copy mailed and emailed March 12, 2013, to: David S. Gingras, Esq. GINGRAS LAW OFFICE, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 david@gingraslaw.com Attorney for Xcentric Ventures, LLC