09/08/2009 7 MOTION to Continue Initial Case Management Conference Set for September 17, 2009; (2) Extend Time for Service on Elvira Gamboa; and (3) Permit Service by Publication on Elvira Gamboa filed by Securities And Exchange Commission. (Attachments: # 1 Memorandum of Law, # 2 Declaration of Junling Ma, # 3 Proposed Order)(Bulgozdy, John) (Filed on 9/8/2009) (Entered: 09/08/2009)
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Extract Doc 7-2
DECLARATION OF JUNLING MA
I, Junling Ma, declare:
1. I am an active member of the Bar of the State of California and am employed by the United States Securities and Exchange Commission ("Commission") as a Staff Attorney for the Commission's Los Angeles Regional Office. I am one of the attorneys handling the Commission's civil action entitled Securities and Exchange Commission v. ZNext Mining Corporation, Inc., et al., Case No. CV 09-2611 (VRW), filed in the United States District Court for the Northern District of California on June 12, 2009. Except to the extent otherwise indicated, I have personal knowledge of the facts set forth in this declaration.
2. Shortly after filing the Complaint on June 12, 2009, I (or others in my office acting on my instructions) hired First Legal, a legal courier and process service company, to personally serve the Summons and Complaint on the defendants, including Gamboa.
3. During June 2009, First Legal was instructed to attempt to serve Gamboa at three addresses: (1) 859 Carina Lane, Foster City, CA 94404 ("Forster City Address"); (2) 11895 La Honda Rd., Redwood City, CA 94062-3797 ("Redwood City Address); and (3) 383 College Ave, Palo Alto, CA 94306 ("Palo Alto Address"). These are the last known addresses for Gamboa known to the Commission.
4. First Legal's efforts to serve Gamboa at the above three addresses were all unsuccessful. As indicated by Exhibit 1, which is a true and correct copy of First Legal's due diligent memorandum dated July 8, 2009:
* the Forster City Address, which belonged to a house formerly under the name of Gamboa's sister Alice Gamboa-Navas, became owned by a bank upon foreclosure, and was at the time vacate and under renovation;
* the Redwood City Address is situated in a rural area, and the exact property cannot be identified; and
* Gamboa no longer resides in the Palo Alto address.
5. In the meantime, to facilitate First Legal's efforts, I and others in my office acting on my instructions conducted asset and other searches and obtained Gamboa's record from the California Department of Motor Vehicle as of June 24, 2009, which listed the Palo Alto Address as Gamboa's current address. Gamboa's driver's license was issued in December 2008. I provided the search results and a picture of Gamboa to First Legal. Attached as Exhibit 2 is a true and correct copy of Gamboa's record from the California Department of Motor Vehicle.
6. On or about July 1, 2009, a staff paralegal employed by the Commission, acting at my direction, requested First Legal to conduct a skip trace investigation to locate and then serve Gamboa. First Legal retained the service of Wayne Sherman ("Sherman"), a private investigator located in Tarzana, California, to conduct the skip trace.
7. Sherman identified another possible address at 718 Bounty Drive, Apt. 1808, Foster City, CA 94044. First Legal attempted to serve Gamboa at this address on July 2, July 3, and July 6 of 2009, and was unsuccessful to serve Gamboa there.
8. On or about July 15, 2009, upon instruction and authorization, I hired Sherman to conduct a comprehensive investigation to locate and serve Gamboa.
9. Attached is Exhibit 3, Sherman's declaration dated August 30, 2009, which shows that he conducted numerous searches for addresses and links to Gamboa, including searches of property, credit sources, phone listings, and other public records including business, liens, judgments, bankruptcies databases, and database for forwarding addresses, and traced all leads.
10. Sherman also contracted Private Investigator John Gavello ("Gavello"), who is located in northern California, to perform searches and conduct field investigation. Gavello spent at least 19 hours of data searches andfield investigation on this assignment.
11. Attached as Exhibit 4 is Gavello's Affidavit of Reasonable Diligence dated August 17, 2009 (which is updated through September 12, 2009). As indicated therein, Gavello surveyed Gamboa's last known addresses and located the Redwood City Address, but he could not find Gamboa or any individual there. Gavello also uncovered, and attempted to serve Gamboa at, four additional addresses, two in Dublin and two in Sacramento, California. These efforts each has failed. On August 11, 2009, Gavello went to the home of Gamboa's married daughter Bernadette Austin-Bower and spoke with her. Austin-Bower identified Gamboa's picture, stated that Gamboa was travelling - may go to Los Angeles, that she did not know Gamboa's address, that Gamboa visited her sometimes and communicated with her via email. Gavello left the Complaint and accompanying documents with Austin-Bower. On August 12, 2009, Austin-Bower called Gavello to inform him that she spoke with Gamboa, told her about the papers, gave her Gavello's number and requested her to call Gavello. Austin-Bower did not disclose Gamboa's telephone number; she said if Gamboa received a call from anyone other than her, Gamboa would change the number immediately. Gavello has not yet heard from Gamboa.
12. During various phases of the investigation of this matter, I had substantial trouble obtaining responses from Gamboa.
* On or about March 2, 2006, a process server hired by the Commission personally served a subpoena for documents and testimony and letter on Gamboa at the Palo Alto Address. Gamboa never responded to the subpoena.
* On July 26, 2006 and September 26, 2006, I sent Gamboa a subpoena for document and testimony and letter via Federal Express to the Palo Alto Address. Gamboa never responded to the subpoena.
* On October 20, 2008, I sent Gamboa a letter to the Palo Alto Address and the Forster City Address via Federal Express. This letter informed Gamboa that the staff of the Commission intended to recommend that the Commission take enforcement action against her, and provided her an opportunity to present reasons why she should not be the subject of such an action. Gamboa never responded to this letter.
I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed this 8th day of September 2009, in Los Angeles, California.
/s/ Junling Ma
Junling Ma
https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?378572872860863-L_950_0-1
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