"THE COURT: Proceed, Mr. Kluger, call your first witness.
MR. TODD LEVINE (Raanan Katz, RK Centers attorney): Thank you, Judge. Actually,
Todd Levine.
THE COURT: Mr. Levine.
MR. LEVINE: 1 will be calling Mr. Matthew Martinez to the stand.
THE COURT: The witness came forward.
MR. KAIN (blogger’s attorney) : Your Honor, did Mr. Martinez sign an affidavit or a declaration in this case?
MR. LEVINE: No, he did not, Judge.
THE COURT: You know, this hearing -- listen, I'm
either going to impose a prior restraint or not and my order just says,
if you have evidence bring it in. I didn't say you need to have an
affidavit ahead of time. Here's the evidence, it's just like federal,
criminal court. You draw a line down the page, you write what he said on
one side and your
cross examination questions on the other side, it's very exciting. I used to cross-examine like that all the time.
MR. KLUGER (Raanan Katz, RK Centers attorney) : A
little housekeeping. I read the rule because they didn't file the
motion to have the press that normally the rule requires. It's okay, I'm
a big first amendment guy. I would do this, though, under the form motion, he has to identify himself and what press he's with, so if he would just state on the record his name and the press he represents we know who he is.
THE COURT: That's a valid point. I would like to know that myself. Sir, if you will state your name and who you are with.
MR. MILLER: My name is Carlos Miller, I run a blog called photography is not a crime. It's a national renowned blog.
THE COURT: Okay. Welcome. (Thereupon,the witness was duly sworn in the
the clerk.)
DIRECT EXAMINATION
BY MR. LEVINE:Would you please state your name for the record.
Matthew Martinez
Mr. Martinez,what do you do for a living?
I am the principal of a brokerage firm.
What is the name of your brokerage firm?
Beacon Hill Property Group.
What type of brokerage services does Beacon Hill provide?
Our focus is on the retail segment of the market.
And that's retail businesses, shopping centers, things like that?
Shopping centers.
And are you personally a real estate broker?
I am.
Do you have a bachelor's degree or an advanced degree?
Yes.
What are your degrees in?
Business, and I have a Masters as well.
And where are your degrees from?
Ohio State University.
When did you obtain your degrees?
91 undergraduate and96 graduate.
Are you familiar with a company commonly known as R.K. Associates or R.K. Centers?
I am.
How did you become aware of -- I'm going to call them R.K. Centers because that's their current name, is that acceptable to you?
Sure.
How did you first become aware of R.K. Centers?
Years ago with some of our clients wanting to lease space from R.K.
Have you been in communication with R.K. Centers over the past five years?
Sure.
In your role as a broker, do you bring potential tenants to shopping centers to obtain space in the centers?
Of course.
Do you conduct online research regarding landlordsfor your clients?
MR. KAIN:Objection, Your Honor, we are leading the witness.
THE COURT:He is leading a little bit, but I'm going to allow it. It helps to tell the story and since thisis a non-jury case, I really want to move this along so I'm going to allow him to go ahead.
MR. LEVINE: Thank you, Judge.
BY MR. LEVINE:
And what about your clients, do they conduct online research regarding the landlords that you bring them to?
Yes.
MR. KAIN: Objection, Your Honor, hearsay.
THE COURT: Overruled. State of mind, go ahead.
MR. LEVINE: Did you hear the question? Can you
read back the question please. (Thereupon, the above-referred to
question was read back by the court reporter.)
THE WITNESS: Yes.
BY MR. LEVINE:
Are you familiar with a blog located at the website ‘www.rkassociatesusa.blogspot.com’?
Yes.
How did you first become aware of that website or that blog?
Yes. About a year ago or so, one of our clients
had read the blog and asked me to personally check to see whether or not
the things that were being stated are valid.
MR. KAIN: Objection, Your Honor, hearsay.
MR. LEVINE: Judge, it goes state of mind I believe.
THE COURT: Yes. I'll overrule it at this time. If
we get to something that is offered as proof of the fact and it's
hearsay, I'll sustain it, but at this time it's just state of mind and
we are setting the scene so I’ll allow it.
MR. LEVINE:Thank you, Judge.
BY MR. LEVINE:
What client are you referring to?
Subway.
Subway is a national presence?
Yes.
What did Subway ask you to do with respect to the blogs?
MR. KAIN: Objection, Your Honor, Hearsay.
THE COURT: Overruled.
THE WITNESS: They wanted us to determine whether or not the things they were reading in the blog were accurate.
BY MR.LEVINE: Did they express any concern over the information they were reading in the blogs?
Yes.
MR.KAIN:Objection, Your Honor,hearsay.
THE COURT: Overruled.
BY MR.LEVINE: What was your state of mind when you saw the blogs?After having read them?
Yes.
A bit shocked, I guess, as to whether or not the things being stated were true.
So what did you do after you read the blogs?
I had met with Raanan Katz in the past and
THE COURT: I'm sorry, you met with who?
THE WITNESS: Raanan Katz in the past, so I had his phone number. I gave him a call and ended up speaking with Danny.
THE COURT: Refer to people by their full names because there are a lot of Katz.
THE WITNESS: Sure.
THE COURT: And if it's Raanan Katz and here is
his son, and a lot of the cast of the characters is large, so just the
first and last name for the record.
THE WITNESS: So I had called their office to speak with someone about that.
BY MR. LEVINE:
And who did you speak with?
I had spoken with Danny Katz and then David on a call.
David who?
Katz.
And David Katz and Danny Katz are both Raanan Katz's sons; is that correct?
Yes.
What did you learn during that telephone conversation?
Well,they had informed me, I wasn't familiar with what had been going on, and I was really making
this phone call on behalf of my client, and they had given me some
background as to what had transpired, and assured me that the things
that were being stated were false.
Did you report back to Subway?
I did.
Did Subway enter into a lease agreement with R.K. Associates?
For that transaction, no.
Do you know whether the blogs had anything to do -- and by the blogs, I'm referring to the blogs that are located primarily at‘www.rkassociatesusa.blogspot.com’. From now on I’ll just refer to that as blogs for purposes of shorthand.
THE COURT:Now,he's going to object and his objection will be sustained.
MR. KAIN: Objection, hearsay.
THE COURT:Ask it another way.
MR. LEVINE:What part of the objection is sustained?
THE COURT:Let me let him make the full objection.
MR. KAIN: Objection, Your Honor, witness cannot
testify about someone at Subway, unknown person at Subway said or
thought. And the witness is not qualified to relate what other people
think nor what someone said who's not here to testify.
THE COURT: Your question is calling for this
witness to know why somebody else did something that they did, is in
essence what it is, and it would call for rank hearsay and it would call
for a conclusion that couldn't be cross examined. So if something
happened, even if something were said directly to him, I could take it
not for the truth of the matter
asserted, but for the state of mind, really,
what's all important is the state of mind of Subway. So if something
were directly said they should look at with those blogs, whatever, I
don't know, but for him to speculate as to why they did it, no. So
that's why I'm asking you to be more specific and just back it up a
little if you can.
MR. LEVINE: Let's break it down. First, for purposes of the rest of this examination, is it
acceptable if we refer to the blog that I identified as the blog or the blogs, is that okay with the Court and with the witness?
THE COURT: Okay. I don't see why not, unless you
can be more specific. There certainly are a lot of blogs. And, by the
way, one or the other of you will be objecting, so I can only have one
on ones on here.
MR. KAIN: Yes, Your Honor. The witness has
testified that this happened almost a year ago and hasn't identified any
particular blog that was available a year ago.
THE COURT: Well, that's why I told him to be specific as specific as he can be.
BY MR. LEVINE: Mr. Martinez, when did this occurrence happen that you're testifying about?
Approximately, a year ago.
And who was the person at Subway that you were talking about?
Aaron Fox.
Aaron Fox?
Yes.
And what is Aaron Fox's title?
Director of real estate.
Aaron Fox is the director of real estate for
Subway. And the blogs that you're referring to are the blogs that were
posted on ‘www.rkassociatesusa.blogspot.com’; is that correct?
I suspect, yes, that's the case, but I don't recall the actual url.
Did Mr. Fox tell you what the reason was that Subway did not enter into a transaction with R.K. Associates?
MR. KAIN: Objection, Your Honor, it's hearsay. What Mr. Fox said is hearsay and what Mr. Fox thought was hearsay.
THE COURT: I'm going to allow it because I don't
know that what Mr. Fox says is true or not true, but it will go to the
state of mind of this person who may or may not do further business with
them and so for that purpose, I'm going to allow him to say what Mr.
Fox said and to weigh that. Go ahead. So did he give you some reason why
he was not entering into a contract?
THE WITNESS: Do you want me speak to that particular transaction?
THE COURT: Well, actually better if you just answer his questions, I’ll make up my own.
THE WITNESS: Did he tell me why he didn't enter into the transaction?
BY NR. LEVINE: Yes.
He didn't enter into the transaction because of a space requirement, ultimately that was the issue.
Do you know whether the blogs had anything to do with the decision made by Subway, do you personally know?
No.
Do you know whether the blogs, that you've
identified, are impediments to you getting clients in your professional
role, getting clients into R.K. Centers properties?
MR. KAIN:Objection, Your Honor, calls for speculation,hearsay,and no foundation.
THE COURT:Sustained. If he has some specific examples of that.
BY MR. LEVINE: Your job,sir, is to find tenants and bring them to landlord properties; correct?
Correct.
You're aware of the existence of these blogs; correct?
I am, yes.
In your role as the broker that brings tenants to landlords, does the existence of the blogs
present an impediment towards bringing those tenants to the landlords?
I would say that if any of my clients were aware of the blogs, they would probably express concern as did Subway.
Thank you.
THE COURT: That would be speculative. Let me ask
you this, do you have a problem dealing with the Katz's, do you
personally, do you hesitate or does it change your desire to do business
with the Katz's because of these blogs?
THE WITNESS: I had read these blogs for the very
first time a year ago and it was alarming to me so I personally made a
phone call to them only because I knew them. If I didn't know them, I
probably would have called them and we would all be very concerned about
it, but I had called them and I had reassurances, personally from the
very top, that this wasn't accurate. So because of that I feel
comfortable dealing with them, but if I knew they were true, I would
probably have an issue with that.
THE COURT: Okay.
BY MR. LEVINE: And, sir, you testified you called them because you already knew Correct.
And you also just said if you didn't know them you wouldn't have called them; is that correct?
I may not have called them.
MR. LEVINE: I have nothing further.
THE COURT: Cross examination.
CROSS EXAMINATION…. "
I will leave just this part from cross examination since it is related to the direct examination bla bla bla...
"BY MR. KAIN:
Good afternoon, Mr. Martinez. How many blogs did you read? How many blog articles did you read?
Maybe, it's tough to say, I just went down the list, clicked on it, this is a year, maybe five,
six.
And other than a year ago, did you ever check it since that time?
Yes.
How often?
Maybe two, three times.
How many tenants have you placed at any one of the R.K. Center locations since that time?
None.
And when I say you, can I refer to your company also?
Correct. That would be the same answer, none.
So over the past year you haven't placed any tenants with R.K., right?
That's correct.
THE COURT: How many tenants have you placed previous to this year?
THE WITNESS: None in R.K. Centers.
THE COURT: So you've never placed anybody in R.K. Centers?
THE WITNESS: No."
to be continued...
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