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David S. Gingras, #021097 Gingras Law Office, PLLC 4025 E. Chandler Blvd., #70-A26 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Plaintiff Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Xcentric Ventures, LLC, an Arizona limited liability company, Plaintiff, v. Lisa Jean Borodkin, et al., Defendants. And Related Claims.

Case No.: 11-CV-1426-GMS

DECLARATION OF DAVID S. GINGRAS

IN SUPPORT OF PLAINTIFF’S MOTION

FOR RELIEF PER FED. R. CIV. P. 56(d)

I, David S. Gingras declare as follows:

1. My name is David Gingras. I am a United States citizen, a resident of the

State of Arizona, am over the age of 18 years, and if called to testify in court or other

proceeding I could and would give the following testimony which is based upon my own

personal knowledge unless otherwise stated.

2. I am an attorney licensed to practice law in the States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and

California and I am admitted to practice and in good standing with the United States

District Court for the District of Arizona and the United States District Court for the

Northern, Central, and Eastern Districts of California.

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3. As explained in other pleadings in this matter such as Xcentric’s Response

(Doc. #183) to Lisa Borodkin’s Motion for Protective Order (Doc. #155), it is my belief

that Defendants Raymond Mobrez and Iliana Llaneras have raised, or intend to raise, a

defense based on “advice of counsel”. Specifically, based on statements made during

their depositions in this case, both Mr. Mobrez and Ms. Llaneras suggested that their

decision to sue Xcentric for “wire fraud” and other related theories was based on advice

they received from their former attorney, Ms. Borodkin.

4. I am aware that under California law, a defendant in a malicious

prosecution case may potentially avoid liability, in whole or in part, by showing that they

acted on the advice of their counsel. I am further aware that this defense only applies

when the defendant has “fully and truthfully disclosed the relevant facts to counsel and

has acted in good faith.” Swat-Fame, Inc. v. Goldstein, 101 Cal.App.4th 613, 629–30,

124 Cal.Rptr.2d 556, 567–68 (Cal. App. 2nd Dist. 2002).

5. In this case, I have attempted to pursue discovery that I believe is relevant

to the question of whether an advice of counsel defense is applicable here. Specifically, I

previously served Mr. Mobrez and Ms. Llaneras with written discovery requests which

asked them, among other things, to provide copies of any documents which they contend

are evidence that they acted with probable cause and without malice. These discovery

requests also included interrogatories asking Mr. Mobrez and Ms. Llaneras to explain any

legal authority they had to support certain claims in the prior case.

6. Mr. Mobrez and Ms. Llaneras did not produce a single document in

response to my written discovery requests, nor did they offer any specific explanation as

to why they acted with probable cause and without malice. Instead, they made a

generalized reference to the entire court docket and all prior documents disclosed in the

prior California case while also stating, “All other information requested is with our

Attorneys Blackert and Borodkin that is considered Attorney-Client information that is

not in my possession.” A copy of Defendants’ response to Xcentric’s discovery requests

is attached hereto as Exhibit A.

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7. In order to further investigate whether Mr. Mobrez and Ms. Llaneras have

a colorable advice of counsel defense, I took both of their depositions in December 2012

and asked them to explain the factual and legal bases for their RICO/wire fraud and

related claims. In response those questions, Mr. Mobrez and Ms. Llaneras each stated

either that they relied on the advice of Ms. Borodkin or (in Ms. Llaneras’s case) that they

did not know what the basis for the claim was.

8. Under these circumstances, I have been unable to obtain discovery relating

to the advice of counsel defense which Mr. Mobrez and Ms. Llaneras appear to be

asserting. Furthermore, I do not believe that any other avenue exists for Xcentric to

obtain such information unless and until the Court rules upon Ms. Borodkin’s request for

a protective order. Assuming Ms. Borodkin’s request is denied, Xcentric intends to take

Ms. Borodkin’s deposition for the purpose of ascertaining whether Defendants fully and

truthfully disclosed all relevant facts to her and whether they were acting in good faith.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

EXECUTED ON: January 31, 2013.

GINGRAS LAW OFFICE, PLLC

/S/ David S. Gingras

David S. Gingras

Attorney for Plaintiff

Xcentric Ventures, LLC

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CERTIFICATE OF SERVICE

I hereby certify that on January 31, 2013 I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing, and for transmittal

of a Notice of Electronic Filing to the following:

John S. Craiger, Esq.

David E. Funkhouser III, Esq.

Quarles & Brady LLP

One Renaissance Square

Two North Central Avenue

Phoenix, Arizona 85004-2391

Attorneys for Lisa J. Borodkin

Raymond Mobrez

Iliana Llaneras

PO BOX 3663

Santa Monica, CA 90408

Defendants Pro Se

And a courtesy copy of the foregoing delivered to:

HONORABLE G. MURRAY SNOW

United States District Court

Sandra Day O’Connor U.S. Courthouse, Suite 622

401 West Washington Street, SPC 80

Phoenix, AZ 85003-215

/s/David S. Gingras

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Exhibit A

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