1
2
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7
8
9
10
11
12
13
14
Case No:
JOHN HOLLENBERG,
individually and doing business as
JLH ENTERPRISES,
15
Plaintiff,
16
(FEDERAL QUESTION)
Removed from the Superior Court ofthe
State of California, County of Los
Angeles, Case No. LC104710
17
18
v.
19
20
21
22
SKELL,INC., a California
corporation; LORENZO
MAGGIORE,an individual; and
DOES 1 through 25, inclusive,
23
Defendant.
24
25
26
SKELL,INC., a California
corporation, and LORENZO
MAGGIORE,an individual,
27
)
)
)
Cross-Complainants, )
28
NOTICE OF REMOVAL OF ACTION PURSUANT TO 8 U.S.C. 1331, 1441
2649983v.1
v.
JOHN HOLLENBERG,an
individual,
2
3
4
5
Cross-Defendant.
6
7 TO THE CLERK OF THE UNITED STATES COURT FOR
8
10 SKELL, INC.,
11
hereby seek removal of Case Number LC104710 of the Superior Court of the
12 State of California for the County of Los Angeles to the United States District
13
16 ~~
17
Subject matter jurisdiction rests with the federal courts in this action on the
18
19 as the first four claims in the Cross-Complaint arise out of patent infringement
20
21
1 114, and federal unfair competition and false designation of origin under 15
22 U.S.C. Section 1125. The District Court has original jurisdiction over this action
23
24
Section1441 as follows:
25
II.
REMOVAL IS TIMELY
26
Removal under this Notice is timely under 28 U.S.C. Section 1446(b). That
27
section reads that, "[t]he notice of removal of a civil action or proceeding shall be
28 filed within thirty days after receipt by the defendant, through service or
.
2
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. 1331, 1441
2649983v.1
otherwise, of a copy of the initial pleading setting forth the claim for relief upon
Complainants filed this Notice on the same day that federal question jurisdiction
4 ~ under 28 USC Section 1331 First Arose. That is, on December 14, 2016, in
5
9 questions in the first four causes of action of that pleading, namely, patent
10 infringement, trademark infringement, and federal unfair competition AND false
11
12 (at 16) and the Cross-Complaint (at 4-6) asserted the right to remove the
13
14 III.
JOINDER
15
16
1446(b)(2)(A), which requires that "all defendants who have been properly joined
17 and served must join in or consent to the removal of the action" under 1441(a).
18 Here, under the Cross-Complaint there are no other defendants (cross-defendants),
19 other than Plaintiff and Cross-Defendant, John Hollenberg. Cross-Complainants
20
21
22 IV.
23
24
pleadings, process and orders in the state court action, served upon them as
25
26
EXHIBIT A
27
EXHIBIT B
28
EXHIBIT C
Answer to Complaint
3
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. 1331, 1441
2649983v.1
1
2
EXHIBIT D
V.
3
4
5
6
true and correct copies of the notices required to the US Patent and Trademark
Office (on Form AO-120) for the patent and trademark claims made in the CrossComplaint, as follows:
7
8
EXHIBIT E
EXHIBIT F
10
EXHIBIT G
11
VL
12
Cross-Complainants respectfully demand a jury trial in the removed action.
13
14
15
16
Central District of California, Western Division..
17
18
19
20
21
22
Jura Zibas
Attorneys for Defendants and CrossComplainants SKELL,INC., and LORENZO
MAGGIORE
23
24
25
26
27
28
G~
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. 1331, 1441
2649983v.1
Exhibit"A"
SU ~ AONS
(CITACION JUD1ClAL)
NOTICE TO DEFENDANT:
(AVlSO AL DEMANDADO):
SKELL, INC., a California corporation; L~RENZO MAGGIORE, an
individual; and DOES 1 through 25, inclusive
;.
.~
YOU ARE BEING SUED BY PLAINTIFF:
(
LO ESTA DEMANDANDO EL DEMANDAN7Ej:
JOHN H4LLENBERG, individually and doing business as JLH
ENTERPRISES
NOTICEI You have been sued. The court may dec'~de against you without your being heard u less you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers ere served en you t Fite a written response at this court and have a copy
served on the piaintifl. A letter or phone call will not protect you. Your written response must be in proper legal form if you want fhe court to hear your
case. There may be a court form that you can use for your response. Yau can find these cou fortes and more Information at tha California Courta
online 5etf-Help Center(www.00urtinfo.ca,govfsalfie/p), your county law library, or the couK Ouse nearest you. If you cannot pay the filing fee, ask
the Court clerk for a fee waiver form. If you do not file your response on fime, you may lose th case by default, and your wages, money, and property
may be taken wRhout further warning from the court.
There ere other legal requirements. You may want to colt an attorney right away. If you do of know an attorney, you may want to call en attorney
referral service. It you cannot afford an attorney, you may be eligible for free legal services fr m a nonprofirt legal services program. You can locate
these n~nprofd groups at the Cal'rfornia Leal Services Web site (www.lswheJpcalifomla.orq), the California Courts Online Self-}ielp Center
(www.courtinfo.ce.gov/selfhelA), or by c:ontactin9 your local court or county bar association. NOTE: The Court has a statutory lien for waived fees artd
posts on any settlement or arbltretion award of $10,800 or more in a civil case. The court's li musl be paid before the court wiU dismiss the case,
rAVISO! Lo hsn demandedo. Si no responds dentro de 30 d(as, !a torte puede decidrr en su contra s!n escuchar su versi6n. Lea la irrformaclbn a
continuaGdn
gene 30 DlAS DE CALENDAR/b despu~s de que le entreguen esla cltactidn y popsies!eg !es pare presenter una respuesta por escrito sn este
apes y hater que se ent~egue una Copia al demandartte. Una caria o una !lemeda telel6nics o !o prolegen. Su naspuesta por escrito frerte que esfar
en formato legal correcfo si desea que procesen su caso en fa torte. Fs posFble que haya un formu~arlo qve usted pueda user pare sa respuesta.
Puede errcorrtrar estos tormularios de 1a torte y mks rnformaei6n en e/ Centro Be AyuOe de les Codes de Calitomia (www.sucorte.ca.gav), er+ ra
brbliotecs de !eyes de su corrdado o en !a carte Qve !e quede m8s ceres. S+ no puede pager la cuata de pr~sentaci6n, plda s!secretario de !e code
que le d~ u~ formulario de exencl6n de pogo de cuotas. Si no presenfa su respuesta a Gem , puede pe~der el ceso por incumplim(ento y la torte !e
podr8 guitar su sueldo, dlnero y Metres srn m6s adverfencia.
Hsy atros r~qulsitos legates. Es recomendable que IJame e un abogado inmediatemete. S+ no conoce a un abogado, puede llamar a un servicio de
r~misibn a abog~vdos. S!no puede pager a un abogedo, es poslb/e que cumpfa con 1os requf iros Para obtener servioios 7egales gratuitos de un
programs de servidos /egeles sin hrtes de lucro. PueCe encontrar esfas grupos sin Vines de!cro en a~ sftro web de Calitomfa Legal Services,
(www.lawhelpcaliFomia.or~, en e!Centro da Ayuda de las Codes de Califamia, {www.sucort .ca.gov} o poni~rrdose en contacto con la cote o e!
coJeglo de aboQedos locales. AVlSO: Por ley, le torte Gene Oerecho a reclamar las cuofas y s costos exentos por lmpaner un gravamen spore
cuslquierr~cuperecibn de 310,000 d mfis de valor+t~cibida mediante un acuerrlo o una conceslbn de er6itra/e en un caso de derecho civil. Tlene que
pagan e!gravamen de la torte antes de qua la cote pueda desechar et caso.
r~~~
Q
~
~
0
~s~u~
~'
~'
DATE:
(For proof of
(Para pr~eba
,ate
Christine C. Lyden
LYDEN LAW C~PORATiON
ue, Suite 1400
6320 Canoga A
Woodland HiIIs A 91367
~c.,..L.~1
~} /~
~ ~ ~ ~i V
A.~
el: 818-888-8866
~~ ~
~. ~---- _ _. _ _._~__~_
Deputy
Clerk, by
fConrol~rrnll
Fax:818-888-5988
fdrlil~n}n1
~e of Summons (trurn F
io Proof of Service of S~
>ON SERVED: You are
al defendant.
sued under the fictitious nar~e of(specifyj:
3. ~% on behalf of(specify}:
under: L
=
L CCP 416.20(defunct corporation)
suMnnoNs
~
.~
~~
~I
PHONE{REQUIREp)
818-888-8866
judy@lydenlawcorp,com
2000018
GTY
ADDRESS
STATE
Woodland Hills
CASE NAME
ATTORNEY
' CA
Christine C. Lyden
CLIENT MAT'fERJREFERENCE N
SUPPORT STAFF(REgUIRED)
Hoflenberg
GATE
Judy Johnson
OOCUMEhITS 7D SERVE
CAUSE N
Summons, Complaint, Civil Case Covsr, Civil Case Addendum, Notice of CMC, Ceft.'of Assignment ~C10471p
F
~
~
P
~
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a~
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then
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Serve
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~ a
Abode Service
CaKes OK
Sere
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~
HEARfNG GATE
Retum
Conformed
Document
iNVE5TIGAilUNS
Locate: C7Person Assets
E7Eigckground Report
11/23!1&
~
~ntormation
Qpther
BU5fIVE5SJE1V1PL0YMENT ADDRESS
Business Name; ~{cs~l, Ins., A Calif. Corp. via AgenE for Service
Address;
Addre&s:
Phone:
SSlV:
Phone:
DOB:
Driver's License #:
NOTE
CODES
BY
AGE
WT.
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HAIR COLOR
D15TING. MARKS
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RTM
I
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CHECKiI
TEMPLATE CODE
DATEJTIME
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AFTER ENTERED 8Y
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erg,
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3 ~ t'EHICCE 7~AEiENT, Ntl tNSWE0. AND QAAK IWS~DE
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5= NO StfLH aDD0.E35
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ll E'ER NON~P~SiDENT,SV87LLT NKJT AT NAME
7 Y ~ 7FA CORESIOENT, SU0IECT tf4T AT YfQM
~;abclega~
FIRM NAME(REQUIRED)
PHONE(REQUIRED
87 8-888-8866
Judy@lydenlawcorp.com
ADDRESS
CITY
ATl'pRNEY
STATE
Woodland Hilis
CA
Christine C. Lyden
CLIEM MATfERJREFERENCE ~
CASE NAME
OA7E
200007 5
Hollenberg
Judy Johnson
DOCUMENTS TO SERVE
CAUSE p
Summons, Complaint, Civil Case Cover, Civil Case Addendum, Notice of CMC, Cert. fAssignment LC104710
f ;`
~ "`'
~
Statute
Date
County
Court
File,
then
serve
5e
Onl
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they
fUe
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Return
Conformed
Document
D D
P
ttof
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~ ~
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CoRes OK
HEART G DATE
INVESTIGATlpNS
locate: DPerson QAssets
Background steport
Other
~
pinformatlon
RESIDENCE
5ervee(s): Lorenzo Maggiore, an individual
Address: 2g01 Uncoln Boulevard, Santa Monica, CA 90405
Phone:
BU51NES5/EMALOYMENT ADDRE55
Business Name:
Address:
Phone:
SSN:
DOB:
Driver's LJcense #:
SPECIAL SERVICE lNSTRUCTEON5:Pl.EABE SERVE AS SOON A5 POSSI LE
................................................................................................FOR A9C USE BELOW THIS LINE.. ............ ..,..........,..............,.,....,..,......,.....,,..................
TITLE:
DATE:
TIME:
f1~F C4PIE5:
SERVE BY:
RECEIVED BY:
DATE/TIME
NQ7E
ODES
BY
AGE
W7.
HT.
RACEJSEX
HAIRCOIOR
DISTING. MARKS
TIC. PLATE
7P #
RTM
BA FEE
TRACE $
M 15C $
N115C $ fOR
SPEC $
CHEtK #
DA7f/TIME
fiEPORTED
SERVE 70
~tECEPTIONIST
TEMPLATE CODE
SPLIT
AFTER ENTERED 8Y
AMDUNT
THfS WO A
D VOICEMAIL
o/u
1ND lV15W6A AT D0011, L1GHT5 ON nJSIOF
2NO MISWEI1 Ai po0a,DA1UC IN6IDE
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~ ~ VQAKIE 7RESEM~ UGHT90N 4N4QE,NO AHSWp1
9 ~ NO SUCH e.0aRE55
10E1181FCf RE~FVES MAIL, BUT GOf1 N070.ESIDC Ai t9DRESS
11 ~ VEIL HONJIFSIpENT,SUBIFR N07 AT NOAdE
l2 ~ VEI1 C0.14FSIOENT, SVBJER NOT AT HOME
..
--~---.___
FfI.E STAMP
..
PI:AIIVTI~F(~}11'ETITT~baTEiTt{sy.~
NOTICE:OFs~~
T'ItIA~`SETTING/ ,
CASE ~NT.ANAGLMEiVT~
_
DF~ENDAIY'T{S)lRESPONDIIVT{5) ~
-- ~
~O~~;i~~i/..,
".~ 05C'RE:..DI5MISSAL
Td:TAFL PI:AItVT1FF(S)'A.NI~~'~ATTORI!lEY:UI~
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NORTHWEST'.:DISTRICT.ON '' ~ ~''
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1`ou rue Ordcred to senra.this no~ca of:h~ri~sg icr all`partias/ettorneys'of rec'vcd fo+rthvr'stltand s~ervc acopy Uf.this natictto all parties...
to the uctio~ within.60 days o~ service of this notioe:.:Ttla,Cgurt orders thataxccgt as t>therwise oideted.in.writing;aU:attameys(ar
unre~sente~pnr~ae,~a"s.applicablr~,a~1Pr,~at$11:schedWt~:Yi~un~.', AU-g,;art}w~ttttt~~ucy's.o~-i~ccoFdiataordesed~ta~mectanBconfer
aboutt~3e~mnttets;ttl~he~,discs~siddt~labertf,~m~~iay~.betat~st}1~,~c,M~lnagcmea~~o
aucc(wtiicii~Ei~lLtttkepisca
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1)~ 'Z'o gins notice.af tl i~~hearfug and sexvea-copqof ~hfi~ notice#wall pa~~.9 to the actioawithin
__
~
40 daysof.~serv~lce~offhi5..nofice:__.
YOI`1`~ARE'QRDER.EIa':
-~--- ..
2). Tct bring to the hearing the original Praaf off'Service of said notice to all of th~-vttte~~gartie~~
served by you. .
u~
or au attorney tiro
ALL PARTIE9~i~R~7.ORDEItED #o. have trial cfluu~sei;
and. [ counsel's ~aiendar; appear a! the hearing:.
:w'
..
,..
. . _ ____.
_ .:__
th the case
~ .~~i~n~;.
RVICE~ ,
CER'ITFICATE.OF'8
:.
'..~ '
'
S~
J
'.I am noh ~ parry tQ the within notion;and,bcertify ttr~+~,~3ersanali~;se~ycH!~~tra~cop}~ of the above nvticGto tha plaintiff
deliveringthe-copy.tq thy;dealgriated~ tepi'esent~hv~Jutt~pmey se~uica ~~tE7e~i~t~~ of filing'of,the azi~inal.complaint,
~ ..
~,
,7S
I am not a pnriy to the within action; aad I certify that I.}personally served a true copy of the aaove notice to the
plaintiff or his attorney of record by delivering tha cagy in person tfus date to couusci far plaintiff or plaintiffin pm
er.
,,.
p
A CORPQR.ATION MUST BE
REPRF~SENTED BY A LICENSED
CALIFORMA ATTORNEY
B'i:
r~.~.-----.~--~
ptL1P Y~~'
_. De~'uty
00
su noNs
F6ACOURT USL ONLY
{SOLO FARO USO PE U CORTEJ
(
CITAC/ON JUDIGIAL)
NOTICE TO DEFENDANT:
(AV1S0 AL DEMANDADO):
SKELL, INC., a California corporation; L~RENZO MAGGfORE, an
individual; and DOES 1 ti~rough 25, inclusive
~roa~~o ~,~8a4u
~~
~
The name, address, and telephone number of plaintiffs attorn ~or plaintiff without an attorney, is:
(E! nombr~, la direction y e! ntimero de te!$fono del abogado 1 demdndante, a del demandante qua na Ilene abogado, es):
Christine C. L den
LYDEN LAW ~C~,PORATION
6320 Canoga A
ue, Suite 1400
Woodland FIiIIs A 97367
DATE:
(For proof of ;
(Para prue6a
ISEnc~
.,~
Tel: 818-888-8866
~~
~-
Fax:818-8$8-b988
~~2
Cleric, by
,Deputy
~U U
F],
Pt
e. ~ a+
Code d Givll Procetlure g 412 20, 485
IlS
we
$~ $-SSS-S$FjG
S~E~-~REss~: 2 Pe
C
MAILING ADDRESS: y't2J
Id
1.1
nue
UE
CASE NUMdEFt
AGE:
DEPT:
1. Check one box below for the case type that best describes this case:
Auto Tort
Auto(22)
Uninsured motorist(48}
other PllPD1WD (Personal Injury/Property
Damaga/Wrongfui Death} Tort
~Asbestos(04}
Q Product liability (24)
[
~ Medical malpractice (45)
0Qther AUPD/WD (23)
Non-PUPDIVYD tOther) Fort
~'
Contract
~Breach of contract/warranty t06j
~]Rule 3.740 collections (09)
O pier ootlections (09)
0Insurattce coverage(78)
~ Other contract(37}
Real Property
~ Eminent domainllnverse
i
condemnation (i4}
types(41)
[
~ Business tortlunfair business practice(07) ~Other real property (26)
[_]Civil rights (OB)
Unlawful Detainer
Defamation {73)
[~ Commercial(31)
[
~ Fraud (16}
~Residential (32)
[
~ Intellectual property (19)
~ Drugs (38)
[
~ Professional negligence (25}
Judicial Review
~ Asset forfeiture (05)
Other non-PI/POJWD tart(35)
[J PeGtlon re: arbitration awartt (11)
Employment
[
~ Wrongful termination (36)
(~ Writ of mandate (02)
~ Otherjudiclal review (39)
Other employment(~5)
Enforcement of Judgment
[,]Enforcement of judgment(20)
Miscellaneous Cfvl! Complaint
0RfCO (27)
~]Other complaint(nat specifred above)(42)
Miscel~aneaus Civil Petition
[]PaRnership and corporate governance X27)
~ Other petition (not specked above](43}
2. This case ~ is ~ is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
factors requiring exceptional Judicial management:
a, C]Large number of separately represented parties d. Q Largo number of witnesses
b, ~ Extensive motion practice raising difficult or novel e. [._~J Coordination with related actions pending in one or more courts
in other counties, states, or countries, or (n a federal court
issues that will be time-consuming to resolve
f. [_,] Substantial {~ostjudgment judicial supervision
c. ~ Substantial amount of documentary evidence
nanmonetary; declaratory or injunctive relief c. Cj punitive
3. Remedies sought (check a!/ that apply): a. ~X] monetary b. ~
4. Number of causes of action (specify): 4
5. This case [~ is ~]is not
a class action suit.
8. Jf there are any known related cases, frle and serve a notice of related cos .( u may use fo
-015.)
EY FOR PARTY
N OTICE
Plaintiff must file this cover sheet with the first paper filed in the action or proceeding {except small claims cases or cases filed
under the Probate Code, Family Code, or We{fare and Irtsfitutions Code).(Cal. Rules of Court, rule 3.220.) Failure to ftle may result
in sanctions.
.File this cover sheet in addition to any cover sheet required by focal court rule.
.If ch)s case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on ail
other parties to the action or proceeding.
Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only,
rm Adoptedior Mandatory Use
Iudidal Council of Glifania
CM~70[Rao. July 1, 2007
~
SO
S.
~a
CM-010
1NST'RUCTIONS ON HOW TO COMPLETE T~E COVER SHEET
To Plaintiffs and Others Filing Ffrst Papers. If you are fling a first paper (f r example, a complaint) In a civil case, you must
complete and frle, along with your first paper, the Civil Case Cover Sheet contained on page 1. Thls information wi11 be used to compile
statistics about the types and numbers of cases filed. You must complete items 9 through 6 on the sheet, In item 1, you must check
vne box for the case type that best describes the case. If the case fits both a gen ral and a mare specific type of case listed in item 1,
check the more specific one. ff the case has multiple causes of action, check the ox that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under etch case type in item 7 are provided below. A cover
sheet must be filed only with your initial paper, Failure to file a cover sheet with the first paper filed in ~ civil case may subject a party, its
counsel, nr both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3,74 is defined as an action for recovery of money owed
in a sum stated to be certain thaf fs not more than $25,000, exclusive of interest a d attorney's fees, arising from a transaction in which
property, services, or money was acquired on credit. A coAectians case does of include an action seeking the following: (1) tort
damages,(2) punitive damages,(3) recovery of real properly,(4)recovery of per a[ property, or(5} a prejudgment writ of attachment.
The identificatlan of a case as a rule 3.740 collections case on this farm means th f it will be exempt from the general time-for-service
requirements and case management rules, unless a defendant files a responsive p eading. A rule 3.74b collections case will be subject
to the requirements for service and obtaining a judgment in rule 3.740.
7o Parties in Complex Cases. In complex cases only, parties must also use t Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff belie+res the case is complex under ru}e 3.400 of the California Ftules of Court, this must be indicated by
completing the appropriate boxes in items ~ and 2. If a plaintiff designates a case s complex, the cover sheet must be served with the
complaint on al( parties to the action. A defendant may file and serve no later t an the time of its fret appearance a joinder In the
plaintiffs designation, a counter-designation that tha case is not complex, or, if the IaintifF has made no designation, a designation that
the case is complex.
Auto Tort
Auto (22}Personal Injury/Property
DamagelMfUrongful Death
Uninsured Motorist(46)(ilthe
case involves sn uninsured
motorist claim subject to
arbllretian, check this item
instead of AUtoJ
Other PllPD1WD (Personal injury!
Property OamagelWrongful Deakh)
Tart
Asbestos (04)
Asbestos Property Damage
Asbestos Personal InJury/
Wrongful Death
Product Liability (not asbestos or
foxirJenvironmenta!}(24)
Medical Malpractice (45J
Medical MalpracticePhysiclans &Surgeons
Other Professional Health Care
Malpractice
Other PI/PD/WD (23)
Premises LiabYity (e.g., slip
and fall)
Intentional Bodily InJuryIPD11ND
(e.g., a~sauft, vandalism)
I ntentional infliction of
Emotional Distress
Negligent Infliction of
Emotional Distress
Other PVI~DIIND
Non-PUPD/VW {Other) Tort
Business TvrtlUnfa(r Business
Practice(0~
Civil Rights (e.g., discrimination,
false arrest)(not civil
har~ssmenq (OS)
Defamatwn (e.g., slander, Ubel)
(t3}
Fraud {78)
lntetlectual Property {19)
or wrongful evictianj
ContractlWarranty BreachSeller
Plaintiff {not Iraud oI neglrgenceJ
Negligent Breach of ContracU
Warranty
Other Breach of Contract/Warranty
Collections (e.g., money owed, open
book acwunts}(09}
Callectlon Case---Seller Plaintiff
Other Promissory Note/CoUeetions
Case
Insurance Coverage (not provisiona~ty
complex)(18)
Auto Subrogation
Other Coverage
Other Contract(37)
Contractual Fraud
Other Contract Dispute
Real Property
Eminent Domainlfnverse
Condemnation (ia)
Wrongful Eviction (33}
Other Real Property (e.g., quiet title)(2 }
Vdrit of Possession of Real Property
Mortgage Foreclosure
Quiet Title
Other Real Property (no!eminen!
domain, lantJlord/tenant, or
for~dosu,~j
t3n~awful Detainer
Commercial (31)
Residential(32)
Drugs (38} ~'rf ff~e case involves 1Rega1
drugs, check this item; otherwise,
report ss Commercial ar Resrdentia
Judicial Review
Asset Forfeiture {05)
Pet~tlon Re: Arbitration Award (11}
Writ of Mandate (d2)
Writ-Administrative Mandamus
Wr+t-Mandamus on Limited Court
Case Metter
Writ-Other Limited Court Case
Review
Other Judicial Review (39)
Review of Health Offiicer Order
Notice of Appeal-Labor
Commissioner Appeals
SHE
case rwa+eeR
~ I HOURSI(~ DAYS
Item II. Ind)cate the correct district and courthouse location (4 steps ff yo checked "limited Case", skip to Item III, Pg. 4);
Step 'I: After first completing the Civil Case Gover Sheet form, find the main Clvil Case Cover Sheet heading for your
case in the !eft margin below, and, to the right in Column A,the Civil Ca e Cover Sheet case Eype you selected.
Step 2: Check one Superior Caurt type of action in Column B below
Step 3: In Column G,circle the reason for the court location choice tha~ applies to the type of action you have
checked. For any exception to the court location, see Local Rufe 2.3.
~ Applicable Reasons for Choosing Courthouse ~oca'tion (see Goiamn C below) ~
6. Lbcatlon of properly or petmanen#ly garaged vehicle.
7. Location where peGfioner resides.
8. Lpcatlon wherein defendanUrespondent functions wholly.
9. Lpcation where one or more of the partier reside.
S 0. l.pcation of Labor Commissioner Office
71. andatory Filing Location (Hub Case)
1. Class actions must be filed in the Stanley Mosk Courthouse, central district.
2. May be filed in centre)(other county, or no bodily injury/property damage).
3. Location where cause of action arose.
4, location where bodily injury, death ar dama9e occurred.
5. Location where performance requirod or defendant resides.
Step 4: Fill in the information requested on page 4 in Item III; complete Item IV. Sign the declaration.
._ ,
A -y
Civil Cade Cover Sheet
Category No. ~
0
Auto (22)
- B
Type of Actin
(Check only, , -,)
~]A7100 Motor Vehicle -Personal InjurylP party DamagelWrongful Death
C Appllcati~e
Rea'sats -Sea Step 3Abova
t., 2., 4.
Uninsured Motorist(46)
asbestos(oa)
0
Fo ,~
`
a is
O
~~
c~
~
o ~
a
2.
2.
1., 4.
t., p,
(practice
Other Personal
Injury Property
Damage Wrongful
Death (23)
1., 4.
~., q,
1., 3.
~~ 4
age/Wrongful Death
casE ~u~+a~rx
Q
Civi! Case Cover Sheet
Category No.
~
Type of Action
(Check only ore)
Business Toni(07)
~~
o
e~.~
o
L
C Applicable
Reasons -See Step 3
Above
T., 3.
1., 2., 3.
Qefamation (13)
L,2 3,
~~
'
_
~
Fraud (16}
C
O
i
a ~
c
zo
Other {35)
e
E
fl
n
.
~ 2., 3,
',
~~'A8017 Legal Matpraetice
A6D50 Other Professional Malpractice gnat medical or legal)
1., 2 3.
2.,3.
i., 2., 3.
~
r--
C3ther Employment(15)
E
w
1., 2., 3,
9 2., 3.
1p,
[
~ A6004 Breach csf Rental/Lease Confract(not ~rnlawfW detainer or wrnngiul
evictiat~)
~ A6008 ContractiWarr~nty Breach -SeOer Plaintiff(no fraudtnegligence)
Breach of ContracU ~lJarranty L
t~~~
[~
A60'l9 Negligent Breach otC~ntracWVarra~ty (no fraud)
(not insurance)
A6028 Ot~ref Breach of ContractlVUarranty (not fraud or nagfigence)
U
Y~
i
Collections (09}
c
U
Irrsuranae Ctiverage (18)
2"~~
1.. ~-" ~.
T"~'~
n
0
`
a
2., 5, 11
5,6, 11
1., 2., 5 8.
Number of parcels
~.
2 B,
p s.
'
2,, g.
2., 5., 6, 11
~ ~
2., 8.
2., 6.
UnlawFul Detainer-ResidBntial
(32)
2 6.
2., S.
',
2., 8.
Page 2 of 4
casEHUMseR
A
CJvil Case Cuver Sheet
Category No,
B
Type,of A~tlon
jCheck anly one)
?., 6.
2 5,
x
a
E
U
a
2., B.
2.
Z.
rn
',
2.. 8.
'
1., 2., 8.
1., 7_, 3.
1., 2., 8.
1., 2., 8.
To~c Tort
Er~vtronmental {305
1 2., 3., S.
0
.y
a~i
~
o
.~
u~i
C Applicable
Reasons -See Siep 3
Above
~
~
-s
o
2., 9.
2., 6.
Enforcemenk
of.tudgment {20)
Other Campt~ints
(Not Specified Above)(42}
2 B.
2., 8., 9.
1., ?., &.
Y., 2., $.
~., 8,
a
pt d
C
~
~ R8124 ElderlOspendent Adult Abuse Case
~ A619Q Election Contest
~
] R610~ Okher Civil Petition
2., 3., 9.
27., 7.
~~ ~
2., 3., 9.
~ ~
1., 2., 8.
a ., Z., H.
2., 3., 9e
~
a;
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ai av~i >'
~ t~
2., 9.
2., 8.
RICO (27)
N ~
i
v
E
a o
~ v
~ ._
~~
'~
CnSE NUMBER
Item III. Statement of Location: Enter the address of the accident, parts residence or place of business, performance, or ofher
circumstance indicated fn Item II., Step 3 on Page 1, as the proper reason for filing in the court location you selected.
REASON: Check the approprtate boxes for the numbers shown
under Column C for the type of action that you have selected for
this cas8,
~1.D2.03.~4.~5.~fi.O7.~8.C~9.X10.01'~.
CITY;
West Hills
STATE.
CA
ZIP CODE'
91304
Item [V, peclarafion ofAssignmerrf: I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct and that the above-entitled matter is properly fined for assignment to the UNLIMITED
courthouse in the
NORTH VAl.L.EY
District of the Superior Gourt of Califvmla, County of Las Angeles [Code Civ. Proc., 392 ei seq., and Local
Rule 2.3, subd.(a).
PLEASE HAVE THE FOLLOWING ITEMS CC3MPLETED AND READY TQ BE FILED 1N ORDER Ta PROPERLY
COMMENCE YOUR NEW COURT CgSE:
1. Original Complaint or Petition.
2. If filing a Complaint, a completed Summons form for issuance by the Clerk.
3. Civil Case Cover Sheet, Judicial Council form CM-d70.
4. Civil Case Cover Sheet Addendum and Statement of Location form, lACIV 109, lASC Approved 03-04(Rev.
03/15).
~. Payment in ful! of the filing fee, unless fees have been waived.
6, A signed order appointing the Guarciian ad Litem, Judicial Council form CIV-010, if the plaintiff or petitioner is a
minor under 18 years of age wilt be required by Courtin order to issue a summons.
7. Additional copies of documents to be conformed ~y the Clerk. Copies of the cover sheet and this addendum
m ust be served along with the summons and complaint, Qr other initiating pleading in the case.
1
2
3
4
S
b
7
10
lI
12
CASE NO.
~~~
"BY FAX"
UNLIIYFITED CIVIL CASE
Plaintiff,
13
v.
14
15
16
Da~'endants.
17
18
19
20
2I
22
23
2A~
25
26
27
28
~YDEN
I.AW f'.nA Pf1R AT~iIN
CAUSES QF ACTION
1.
Plaintiff JOHN HOLI.ENBERG, is and at all relevant times herein alleged was ~
an individual oven the age of 18 years, and a resident of the State o~ California, County of Los
Angeles, and doing business under the fictitious name of JLH ENTERPRISES (hereinafter
Plaintiff or "JLH"). JLH is and has been engaged in the business o~ marketing, distribution
and value-added reselling of products on the open market since 1995.
2.
herein alleged was, a ca~poration organized and existing under the laws of the State of
Page 1 of 11
COMPLAINT FOR DAMAGES,CONSTRUCTIVE TRUST ANI? ACCOUNTING
California wish its principal place of business situated in the County of Los Angeles, State of
Galifornia.
3.
tinnes herein, was an individual aver the age of Z8 years, and a resident of the State of
4.
Plaintiff is infotmed and believes, and based thereon alleges that MAGGIORE is
the principal shareholder, director, and/or owner of SKELL, and that MAGGIORE, at all times
relevant hereto, directly owned, controlled, dominated, used, managed and operated SKELL.
Plaintiff is further informed and believe, and based thereon allege, that SKELL is, and at all
10 I times relevant hereto, has been a mere shell without sufficient assets to meet its debts
11
12
Plaintiff is informed and believes, and based thereon alleges that at all times
13
rele~rant hereto SKELL failed to Follow corporate farxx~alities and failed to maintain a carparate
14
identity separate and. distinct from and that there existed a unity of interest and ownexship
15
between SKELL and MAGGIORE,such that SKELL is a mere business conduit and alter egt~
l6
ofIviAG~TORE.
17
6.
18
the fiction of the sepaaate legal existence of SI{ELL, an the one hand, and MAGGIORE, on
19
the other hand, as entities and persons distinct from one another would permit an abuse of the
?fl
co~porate privilege, would promote injustice and would sanetian a fraud upon the Plaintiff,
2l
7.
~lazntiff is informed and believes, and based thereon alleges that Defendants
22 ~ DOES 1 through 25, inclusive, and each of them, were in some manner responsible or legally
23 I liable for the actions, omissions, events, transactions and accur~-ences alleged herein, and are
24
therefore legally liable to Plaintiff for the relief sought herein. The true names and capacities,
25
26
corporate, associate or otherwise, are presently unknown to ~'laintiff. Plaintiff will amend this
~~
Complaint to assert the true names and capacities of such fictitiously named Defendants when
28
LADEN
i swrnavnaaTinN
Page 2 of 11
COMPLAINT FOR DAMAGES,CONSTRUCTIVE TRUST AND ACCOUNTING
the same have been ascertained. For convenience, each reference to a named Defendant herein
8.
Plaintiff is informed and believes, and based thereon alleges that at all material
times Defendants, and each of them, were the officers, agents, directors, shareholders,
remaining Defendants, and each, o~ them, and are, and at all times mentioned herein, were
acting within the course and scope of that agency, employment, partnership, conspiracy, joint
venture, or ovvnersh.ip. Plaintiff is further informed and believes, and based thereon alleges,
that the acts and conduct alleged herein were kno~~vn to and authorized, directed, and/or ratified
ld
1I
9.
The obligations and claims sued upon herein were made and entered in and are
12
due and payable in the above-mentioned judicial district and county, State of California, and
13
are not subJect to the provisions of I $IZ,]0 and 2984.4 ofthe California Civil Code.
14
10.
15 '. 1060. Defendants' obligations and liability a~~ise in this county because perfo2mance is due and
Ib
damages are payable in this county and district at. 22921 Saticoy Street, West Hills, California
17
91304
18
11.
19
and Chief Executive Officer of SKELL and discussed becoming a distributor for a retail i
20
amusement product known ai d marketed under the trade name "BUG-A-SALT." Plaintiff is
21
informed, believes and thereon alleges that MAGGIORE is the inventor of the BUG-A-SALT
22
product. Plaintiff is further informed, believes and thereon alleges that. the patents and
23
trademarks associated with and integral to the BUG-A-SALT product are, and at all times
24
25
12.
By virtue of the meeting, Plaintiff acquired and was supplied with demonstration
2b
units of the BUG-A-SALT device and test marketed the product to six retailers for sale in the f
27
2012 Holiday season. By reason of Plaintiff's skill and efforts, and the devotion of labor and
28
know-how as an established promoter, distributor and reseller of products to trade and retail
Page3ofll
LSDEN
~ ~u)rneo(~oAT~1~y
cultivated relationships of trust ~~vith the referenced retailers in test marketing the product for
distribution.
4
5
13.
discussed with VIA~'iGIORE on behalf of SKELL conditions under which Plaintiff would
parties orally agreed that Plaintiff would act as a distributor of the BUG-A-SALT product.
14.
In reliance upon the oral agreement reached with MAGGIORE and SK.ELL, in
January 2013, Plaintiff conceived of and created an Amazor~.Com Listing for the product so
la
11
that the SUG-A-SALT product would attain international exposure through the word wide web
medium on the open market, thereby encouraging consumer and media interest in the product
12
I3
15,
In further reliance upon tale oral agreement reached with MAGGIORE and
14
SKELL, in January 2013, Plaintiff conceived of and created an eBay reseller listing for the
15
BUG-A-SALT product would attain international exposure through the world wide web
16
medium on the open market, thereby encouraging consume and media interest in the product
17
18
16.
19
Amazon.Cvm, the items had not been advertised, promoted or offered for sale through this
20
medium.
21
17.
In 1Vla~ch 2013, Plaintiff devoted further lobar, effort and financial resouzces to ',
22
the advertisement and promotion of th.e BUNG-A.-SALT pzoduct for sale. Plaintiff attended the
23
ASD show as an observer in order to assess whether the product was suited to marketing to
24
25
18.
26
engagement of public and media interest, the BUG-A-SALT product attained the status of the
27
28
Page 4 of 1 ]
LY~EN
1 ~~~1 I`A ~11fA1~~M1/~~~
19.
Plaintiff would attend the August 2013 ASD Las Vegas Consumer Goods Trade Show as an
independent distributor of the BUG-A-SALT product but that the expenses incun-ed would be
reimbursed by SKELL. Plaintiff suggested and MAGGIORE agreed oz~ behalf of SICELL that
the target market for the BUG-A-SALT p~oduct would be cl~ain retail stores with 140 or less
locations, This was based upon the limited aUility of Sl`~ELL to manufacture and supply
devices in order to satisfy orders based upon its capacity at that time.
2a,
At the August 2013 ASD show, Plaintiff met and cultivated a relationship with
the buyez~/representative for Cabella's and other large-scale retail chain and. franchise
t0
Il
21.
Through
Plaintiffs
continued
and
1z
engagemen# of public and media interest in the BUG-A-SAL'Y', and devotion of labor,
13
14
Hallmark stares pursuant to which bath agreed to buy units of the BUG-A-SALT product. In
15 ' Janua~y 20I~, PlarntifF received approval from Cabella's as a vendor of the BUG-A-SALT
16 ~ product.
1.7
18
Plair~tzff' agreed to modify his role from distributor and value-added-reseller of the BUG-A-
19
20
agreed to accept and MAGGIORE and SKELL agreed to pay Plaintiff aflat-commission of
21
fifteen percent (15%) on the gross sales of all BUG-A-SAL,T products to any and all
z2
23
24
23.
t11I5
arrangement, PIaintiff ~
Plaintiff attended fhe ASD trade show in March 2014 in the capacity of
25
representative for SKELL on the commission terms described in paragraph ~0, above.
26
Cabella's placed its initial order fa~~ the BUG-A-SALT pz~oduct by reason of Plaintiffs
27
development of the buyer relationship and SELL thereafter paid to Plaintiff a corrsmission
28
E~1
LSDPor+,~Tio~v
t,.aw coR
22.
Page 5 of 11
COMPLAlI`TT FOR DAMAGES,CONSTRUCTIVE TRUST AND ACCOUNTING
24.
Following the March 2014 ASD t~ade show, SELL requested and Plaintiff
product.
25.
Plaintiff continued to advertise, ma~lcet and promot the device, including management and
oversight of the product presence on Amazon.C~ , and on the retail market in general.
Plaintiff did so in reliance and with the expectation t at he would continue to receive a fifteen
percent (15%} commission on the sale of each and every BUG-A-SALT product sold by
10
percent{17%} commission.
I1
26.
Tn or about May 2014, Plaintiff was otified by SKELL that it was assuming
12
operation of the Amazan.Com web listing that he e~~eloped and maintained, as described
13
above pursuant to which Anzazon.Com fulfilled buyers' purchases. By reason of this action,
14
STCELL restricted Plaintiff to acting as a merchant s ller of the BUG-A-SAT.T product which
15
ree~uired him td individually fulfill buyer sales, whit substantially reduced the profitability of
16
the commission arrangement guaranteed to Plaintiff nder the tertrts of the agreement reached
17
18
27.
In June 2014, Plaintiff entered into an agreement with Palmer Group pursuant to
19
which the BUG-A-SALT product would be offered far sale in 1,800 retail stores and
20
approximately three million catalogs. After discussions with MAGGIQRE and others at
21
SKELL of its ability to supply in order to meet the de and of such an account, Plaintiff signed
22
an agreement far 6,540 of the BCJ'G-A-SALT prod cts for sale during the Christmas 2014
23
retail season.
24
2$.
Through
Plaintiff's
continued
and
25
26
resources and effort, the BUG-A-SALT product ~e ched the position of the third highest
~~
selling product on the Amazon.Com site in or a out July 2014. In addition, Plaintiff
28
6 of11
LX~EN
developed additional interest in the retailer and resell~r community by cultivating interesE in
2
3
the product with National Tool/~~otula's and ACE and True Value.
29.
and Plaintiff agreed to pay a deposit of $50,000.00 ~gainst the purchase of one container of
7,080 units, anri Plaintiff made the deposit to SKELL and arranged far storage of the container
of said units of product as well. Xn reliance upon the dvance offunds, Plaintiff did commit to
sale of BUG-A-SALT products to various purchas rs. All tl~e while SICELL had retained
Plaintiff's $50,QOO.~fl deposit for its awn use and without delivering the product promised.
10
11
~SO,000.flO into Plaintiffs bank account at the financi l institution where his accounts are held.
12
30.
Yn or about August 2414, Plaintiff net with MAGGIORE and others at SKELL
13
and was notified that he was no longer authorized to sell the BUG-A-SALT product online.
14
Rather, Plaintiff was told that he could "repair" defe tine BUG-A-S~1L1' products and resell
15
16
]?
]8
31.
Plaintiff continued to perform his oblig bans under the agreement with SKELL
In October 2014, Palmer Group and other buyers cultivated by Plaintiff began to
19
place orders for the BUG-A-SALT product. Northern Tool requested 5,000 units. SKELL
20
refused to honor its agreement to supply the BUG-A~SALT product to Plaintiff and advised
21
Plaintiff that he could have a lesser number of the p oducts. This breach of agreement with
22
23
community, because he was unable to deliver product ordered and promised as committed to
24
him by SKELL. Plaintiff was able to moderate the allaut from the breach of agreement ~o
25
supply with some buyers, but his relationships and reputation with them was significantly
26
27
28
33.
no further BUG-A-SA.LT p~'oducts during the 2014 Season because the product would be sold
Page 7 of 11
LYD~~1
by SKELL itself in order to fulfill other orders, in breach and derogation of Plaintiff's
34.
In Januuy 2015, SKELT.'s attorney sent written notice to Plaintiff to cease and
desist all sales and distribution of the BUG-A-SALT product and denied any obligation to pay
agreement.
BREACH OP CONTRACT
!4
35.
Plaintiff repeats, realleges, and incaiporates herein by reference each: and every
11
allegation contained in Paragraphs 1-34, inclusive ofthe Ailegations Common to All Causes of
12
13
36.
plaintiff is informed, believes and thereon alleges that Defendants, and each of
l4
them, sold units of the BUG-A-SALT product to customers with wham and which Plaintiff
15
16
37,
In breach of the oral agreement of the parties as modified in March 2014, the
17
matet7al terms of v~~hich Plaintiff is informed are memorialized in writings between the parties,
1$
Defendants, and each of tk~em, did fail and refuse and continue to fail at~d refuse to pay to ~
19
Plainti#~ a sum equal to fifteen percent (1 S%) of the gross sales of BUG-A-SALT products to
2Q ~i the customers with wham and which Plaintiff had cultivated and established buyer
21
22
relationships.
3$.
Plaintiff fully performed all obligations imposed upon him according to the
23
terms of the oral agreement of the parties, except for those obligations performance of which
24
25
39.
By reason ofthe breach of the parties' agreement, as herein alleged, Plaintiff has
26
suffered special damages in a sum equal to fifteen (15%) of the gross sales of alI BUG-A-
27
SAL3' pzoducts to customers with wham and which Plaintiff had cultivated and established f
?g
Page 8 of 1 I
LYI~EN
buyer relationships, in sum according to proof at the ime of trial but in excess of the minimum
6
7
40.
Plaintiff repeats, realleges, and incorp rate herein by reference each and every
allega~ian contained in Paragraphs 1-39 of the as iffu ly set forth at length herein.
4l.
Defendants, and each of them, were agivised by Plaintiff and Defendants knew
that Plaintiff had agreed to sell units of the BUG-A SALT product to customers with whom
10
li
42.
12
agreements by failing to supply tlae units of the BUG A-SALT product committed by Flaintif~
~~
for sale to said customers with full knowledge that s id would prevent performance, deprive
14
15
16
43.
Defendants, and each of them, did f '1 and refuse to provide Plaintiff with
~~
su~~cient units ofthe BUG-A-SALT pzoduct committ d by Plaintiff foi sale to said customers,
18
19
44.
Plaintiff is informed, believes and then on alleges that Defendants, and each of
~0
them, did therea~er engage in direct sales of the BUG-A-SALT product to the same customers
21
with wham Plaintiff had cultivated buyer relationships to the exclusion of Plaintiff and profited
22
therefrom.
23
45.
As a direct and proximate result of the ctions of Defendants, and each of them,
24
as alleged herein, Plaintiff has sustained special da~na es in an amount subject to proof at trial,
25
26
/I///
27
/lll!
2g
~iiir
LYDE~T
~ ~f~I Prin nnfl ~Tlf1\t
Page 9 of 11
COMPLAINT FOR l~AMAGFS, C4NSTRUCTI E TRUST AND ACCOUNTING
.~
1
4
5
6
~6.
Plaintiff repeats, realleges, and incorporates herein by reference each and every
allegation contained in Paragraphs 1-45, inclusive he~eof as though fully set forth herein.
47.
Defendants, and each of them, said Defendants ~vi~ongfully acquired assets a~~d monetary
benefits which were due to, awed to, and were the ~ightful property of the Plaintiffs herein.
Said assets and monetary benefits were transferred t~ other Defendants and third-parties the
1~
identities of which are not p~esently known to Plai `kiff. Plaintiff is informed, believes and
11
thereon alleges that said assets and monetary benefits'I were thereafter used by said defendants
1~
to acquire interests in personal and real property the t'~entities of w}~ich are also nat presently ~'
13
~Qwn to Plaintiffs.
14
48.
1~
alleged herein, Defendants and each of them narr~ed herein hold said assets, monetary ~,
ld
proceeds, and interests in personal and rest prapet~y acquired therewith, as constructive
17
18
19
FOR ACCOUNTI~iG
20
21
22
23
49.
Plaintiff repeats, realleges, and incorpara~tes herein by reference each and every
allegation contained in Paragraphs 1-48, hereof, as thou h fully set Earth herein.
50.
Despite a demand from Plaintiff, Defend is and each of them have refused to,
24
and continue to refuse to account to Plaintiff for the gxact amount of sales of the BUG-A-
25
SALT product made by Defendants, and each of the f, to customers with whom and which
26
Plaintiff cultivated buyer relationships, and of the rngnetary benefits received by them by
27
28
LYDEl~
..............,~ .T,.,.~
Page 10 of 11
COMPLAINT FOR DAMAGES,CONSTRUCTIVE TRUST AND ACCOUNTING
i
S 1.
The amount of money due froth Defendants to Plaintiff foa commissions on such
sales is unknown and cannot be ascertained without Ian accounting of the sales of the BUG-A-
SALT product by Defendants, and each of them, to ustozners with whom and which Plaintiff
I.
2.
For pre'ud
J gmeat interest as allowed bY law.
10
I.
lI
Plaintiff from sales of the BUG-A-SA~,T product t~ the customers as to which and whom
]2
Plaintiffs cultivated and established buyer relationsh~s, appropriated and retained by them in
13
14
15
2.
16
3.
17
18
1.
19
2.
For payment over to Plaintiff o~' the amount due from Defendants as a
20
2i
22
1.
23
2.
For such other and Further relief ~s the Court may deem proper.
2~
25
26
27
28
BY:
E
ttorneys for
D
Plainti ,JOHN HOLLENBERG, individually
and dai~g business as JLH ENTERPRISES.
llofl]
~.YrJEN
I.aW Cl1R PC1N A71QN
Exhibit"B"
___...
FlI,F3$TAMP
PIjAIIVTIFF(~?!PETTI'TbNB~t{sy.~
rto~c~,oF.
TRtAT~SETTING/
CASE'TYtE1NAGEMENT~
r~~varrres)~sPormsrrres> ~
CONFERENCE/...'
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served by you. .
ALL PARTIE9~iARk3.ORDERE'D `to. have trial c~~nsel; or a~attarney tho
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delivering-thy-copy.toth~rdesignated~~pYesentnt~y~I tney-sectneauEtft~~t~pf~ingafthg~original.complaint.
Iom not a party to We within action; andIcertify that F .persouaflq served a hue copy of the shove aoticc to the
plaintiff or his nttomey of record by delivering rho cagy in person tfus data to counsel far plQ.intiff ar piaintiif in pra
per.
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A COEtPORA'FION MAST BE
REPRE5EN'i'ED BY A LICENSED
L'r~LIFORMA ATTORNEY
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1 'i ~ Additionally, Defendants deny that Plaintiff is entitled to any relief from Defendants, whether
2
3
4
Defendants have not completed their investigation of the facts of this case, have not
completed discovery in this matter, and have not completed their preparation far trial. The
affirmative defenses asserted herein are based on Defendants' knowledge, information or belief
at this time, and Defendants specifically reserve the right to modify, amend or supplement any
affirmative defense contained herein at any time. Without conceding that they bear the burden
10
11
12
1.
13
and each cause of action thereof, Defendants are informed and believe and on that basis allege
14
that Plaintiff has failed to state facts sufficient to constitute a valid cause of action against
15
Defendants.
16 ',
17
(Statute of Limitations)
18
2.
19 ~ and each cause of action thereof, Defendants are informed and believe and on that basis allege
20
that each cause of action is barred by the applicable statute of limitation, including, but not
21
22
23
(Lack of Damages)
24
3.
25
and each cause of action thereof, Defendants are informed and believe and on that basis allege i
26
that the Plaintiff has not suffered damages for which he is entitled to recover. Specifically,
27
Defendants believe
28
that Plaintiff neither incurred actual damages nor suffered any other
2
ANSWER TO COMPLAINT
2639563v.1
(Failure to Mitigate)
4.
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
basis allege that the Plaintiff failed to mitigate any damages he might have suffered.
(Waiver)
5.
and each cause of action thereof, Defendants are informed and believe and on that basis allege
10
that the Plaintiff has engaged in conduct and activities sufficient to constitute a waiver by
11
reason of which Plaintiff is estopped to assert any claim or cause of action against Defendants.
12
13
(Unclean Hands)
6.
14
15
and each cause of action thereof, Defendants are informed and believe and on that basis allege
16
that by virtue of Plaintiff's careless, negligent, or other wrongful conduct, Plaintiff should be
17
barred from recovering against Defendants by reason of the equitable doctrine of Unclean
18
Hands.
19
20
(Estoppel)
21
7.
22
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
23
basis allege that Plaintiff, by his actions and conduct, is estopped from asserting the relief
24
i~'
25
26
(Caches)
27
:
8.
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
3
ANSWER TO COMPLAINT
2639563v. ]
basis allege that Plaintiff, by his actions and conduct, should be barred from recovering against
(Consent)
9.
6 I ~ and each cause of action thereof, Defendants are informed and believe and on that basis allege
7
that Plaintiff, by his actions and conduct, consented to the conduct alleged in the Complaint.
(Causation)
10
11
12
10.
~ and each cause of action thereof, Defendants are informed and believe and on that basis allege
that Plaintiff's injuries or damages, if any, were not caused by the conduct of Defendants.
13
14
(Punitive Damages)
15
1 1.
16
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
17
basis allege that, although Defendants deny they have committed or have responsibility for any
18
act that could support recovery of punitive damages in this lawsuit, to the extent any such act is
19
20
provisions of the United States Constitution, including the Excessive Fines Clause of the Eighth
21
Amendment and the Due Process Clause of the Fifth Amendment, as well as numerous
22
provisions of the California Constitution, including the Excessive Fines Clause of Section 17 of
23
Article I, the Due Process Clause of Section 7 of Article I, and the Self-Incrimination Clause of
24
Section 15 of Article I.
25
26
(Privilege)
27
28
12.
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
4
ANSWER TO COMPLAINT
2639563x.1
basis allege that any recovery on Plaintiff's Complaint, or any purported cause of action
alleged therein, is barred in whole or in part because the actions of Defendants were privileged
and/or protected by applicable laws and the United States and California Constitutions,
including that Defendants acted in good faith to protect their economic interests.
(After-Acquired Evidence)
13.
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
basis allege that any recovery on Plaintiff's Complaint, or any purported cause of action
10
11
12
(Vicarious Liability)
13
14.
14
Complaint, and each cause of action thereof, Defendants are informed and believe and on that
15
basis allege that Defendants cannot be held vicariously liable for the conduct alleged in the
16
Complaint, as Defendants were not aware of the alleged conduct, took prompt, remedial steps to
17
prevent such conduct from happening or continuing, or never adopted, ratified or condoned the
18
such conduct.
19
20
(Apportionment)
21
15.
22 ~ Complaint, and each cause of action thereof, Defendants are informed and believe and on that
23
basis allege that the damages alleged by Plaintiff were either wholly or partially, either
24
25
entities other than Defendants, and Defendants are therefore entitled to apportionment among all
26
such parties according to their responsibility for such injuries and damages, if any, sustained by
27
the Plaintiff.
28
5
ANSWER TO COMPLAINT
2639563v.1
16.
Complaint, and each cause of action thereof, Defendants allege that with the filing of the
accompanying compulsory Cross-Complaint that, under the federal claims in that Cross-
Complaint, jurisdiction of this action is in United States District Court, Central District of
California, Western District, that may be effectuated by the filing of a Notice of Removal.
8
9
10
11
12
WILSON ELSER MOSKOWITZ EDELMAN &
DICKER LLP
13
14
15
16
17
18
19
By:
E. Pau Doug rt , Jr.
Craig C. Hunter
Jura Zibas
Attorneys for Defendants SKELL,INC., and
LORENZO MAGGIORE
20
21
22
23
24
25
26
27
28
J
ANSWER TO COMPLAINT
2639563x.1
PROOF OF SERVICE
>
3
4
5
I am employed in the County of Los Angeles, State of California. Iam over the age of
18 and not a party to the within action; my business address is 555 South Flower Street, Suite
2900, Los Angeles, California 90071.
On December 14, 2016,I caused the foregoing document described as
ANSWER TO COMPLAINT
to be served on the interested parties in this action as follows:
X
by placing X the true copy(ies) _the originals) thereof enclosed in sealed envelopes
addressed as follows:
Christine C. Lyden
Lyden Law Corporation
A Professional Law Corporation
6320 Canoga Avenue, Suite 1400
', Woodland Hills, CA 91367
' Telephone:
(818) 888-8866
Facsimile:
(818) 888-5988
X
by mail. Iam "readily familiar" with my firm's collection and processing
correspondence for mailing. Under that practice it would be deposited with U.S. postal service
on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary
course of business. I am aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct, andI declare that I am employed in the office of a member of the bar of this
court at whose direction the service was made.
Executed on December 14, 2016, at Los Angeles, California.
25
~~
Hazel e Nunez
26
27
28
ANSWER TO COMPLAINT
2639563v.1
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1
2
3
Cross-Complainants,
4
5 ~~
6
7
Cross-Defendant.
8
9
10
16
of business at 2401 Lincoln Boulevard in Santa Monica, California, located in the County of
17
Los Angeles.
18
2.
19
California.
20
3.
21
California and doing business under the fictitious name JLH ENTERPRISES.
22
JURISDICTION AND VENUE
23
4.
The United States District Court for the Central District of California has original
24
subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. Section 1331
25
26
(federal question), 28 U.S.C. Section 1338 (patents and trademarks), and 15 U.S.C. Section
1 125 (false designation of origin).
27
28
2
CROSS-COMPLAINT
2636871 v.3
5.
The United States District Court for the Central District of California has
supplemental jurisdiction pursuant to 28 U.S.C. Section 1367 for the state law clams of
intentional interference with a contractual relationship, unfair business practices, and false
advertising, each of which arise out of a common nucleus of operative facts with those from
6.
The Western District of the United States District Court for the Central District
9
10
11
7.
12
State of California, but by virtue of the foregoing jurisdiction allegations, reserve the right to
13
immediately remove this case to federal court, namely,the Western District of the United
14
15
16
17
9.
SKELL is a start-up company that develops, markets and sells bug eradication
18 I
devices. MAGGIORE is the founder and CEO of SKELL. He invented and brought to market,
19 I
the "BUG-A-SALT," following almost two decades of development and investment. The
20
BUG-A-SALT is a gun designed to kill flies and other household pests on contact by shooting
21
22
10.
SKELL worked to insure the success of this product by investing valuable time
23
and effort in financing, obtaining patents and trademarks, in developing the market, and then
24
25
26
27
28
1 1.
In May 2012, SKELL posted an online video telling the story of the development
In July 2012, SKELL launched the BUG-A-SALT gun for presale on a crowd-
13.
1
2
website, www.bu~asalt.com.
14.
3
4
Shortly after launch, SKELL began pre-selling the product through its own
By the end of 2012, SKELL had raised over half a million dollars through
presale revenue for purposes of manufacturing and shipping more than 20,000 BUG-A-SALT
units.
8
9
10
11
16.
From 2013 through 2014, the retailers to whom SKELL and its wholesalers sold
units included Cabela's, Amazon.com, Northern Tool, and Hallmark, aka Palmer Group.
HOLLENBERG'S SALE OF BUG-A-SALT UNITS
12
13
18.
14
HOLLENBERG and other wholesalers, began buying the products from SKELL at discount,
15
16
17
18
19.
By late May 2013, HOLLENBERG had purchased for resale as many as 1,152
BUG-A-SALT units.
20.
19
his attendance at conferences, including the Las Vegas ASD consumer tradeshow, and the
20
various meetings he took to market the BUG-A-SALT gun. He advised that he was reselling
21
the product directly to various customers and to other middlemen who would buy from him
22
23
24
25
21.
middlemen, rather than directly to the four principal retailers to whom SKELL sold directly.
22.
26
its sales agreement with retailer Cabela's, advising that he would be the main contact with
27
28
4
CROSS-COMPLAINT
2636871 v.3
1
2
23.
3 ~ ~ compensation.
4
24.
of the BUG-A-SALT gun, and that he was not to be paid as a commissioned salesperson.
7
8
9
10
11
25.
On about May 15, 2014, HOLLENBERG himself notified SKELL that bootleg
12
Chinese sellers that may have been making bootleg units and shipping them to the US at cheap
13
prices, complaining that this was a big problem for retail growth and his own pending sales.
14
15
16
17 I
a.
18
however, lie would be the only contact for the that account for orders he placed until
19
20
SKELL would honor his wholesale price of $17 per unit for the next
21
3,000 Lulits he purchased, but that there would be no guarantee the stock will be available or
22
23
24
units with gears/parts for him to repair and sell on eBay at a price of $12 per unit;
25
26
d.
riew/unused BUG-A-SALT merchandise on any third party sites, including Amazon and eBay;
e.
27
28
SKELL would allow him to sell refurbished units by sending him broken
mid-September;
g.
4
5
6
7
8
9
10
SKELL would refund him his payment for his "big order," because the
cease and desist all further sales and distributions of any SKELL products.
30.
At or about the same time, SKELL began suspecting that HOLLENBERG may
11
12
32.
13
HOLLENBERG began making, marketing and selling counterfeit BUG-A-SALT products (the
14
"Counterfeit BUG-A-SALT"), by colluding with the same Chinese factory that produced
15
SKELL's products.
16
33.
17
18
BUG-A-SALT units online and through direct sales, in violation of SKELL's patents and
19
trademark.
20
34.
HOLLENBERG copied SKELL's design and usurped the name for SKELL's
21
product in an intentional effort to trade on SKELL's goodwill and to deceive consumers into
22
believing that the Counterfeit BUG-A-SALT was actually a True BUG-A-SALT, designed and
23
manufactured by SKELL. The counterfeits that HOLLENBERG sold used lesser quality
24
materials and failed to perform to the same level or offer the same longevity as a True BUG-A-
25
SALT. To add insult to injury, HOLLENBERG made his counterfeit sales at prices lower than ~
26
27
28
35.
intentionally misled wholesale customers into believing that he was an authorized seller of the
6
CROSS-COMPLAINT
1 2636871v3
1 '~ True BUG-A-SALT, in order to convince these customers to purchase exclusively from him.
2
HOLLENBERG then provided the wholesale customers with the inferior Counterfeit BUG-A-
SALT products.
36.
In about early May 2014, SKELL began suspecting that HOLLENBERG may
have been involved in the Counterfeit BUG-A-SALT units that began appearing on the
Amazon and eBay websites, among others. As that suspicion grew, SKELL began limiting
HOLLENBERG's sales of its product until in January 2015, it barred him from all further
sales.
37.
Notwithstanding this bar, SKELL confirmed that as of about August 21, 2015,
10
11
patents and trademarks. It did so by ordering one of these counterfeits that HOLLENBERG
12
13
38.
The counterfeit product that SKELL received was contained in packaging similar
14
to the packaging provided by SKELL on the True BUG-A-SALT, except that the packaging
15
(i) did not contain SKELL's company information including its name, website address, social
16
media information, its "Pinch bug" logo or a bar code, (ii) contained a product number not
17
used by SKELL, and (iii) was labeled "Bug-A-Salt Original Salt Gun New," a designation not
18
used by SKELL. On the other hand, the depiction of the Counterfeit BUG-A-SALT gun was
19
20
There were numerous other differences in the packaging, packaging instructions, the
21
attachment of the gun to the box and the gun itself between the counterfeit and the original.
22
23
24
39.
Despite posting notices on its company website to alert consumers about the
25
26
discontinue the True BUG-A-SALT and develop and launch a successor product, the" BUG-A-
27
SALT 2.0."
28
7
CROSS-COMPLAINT
2636871v3
41.
On August 8, 2012, the United States Patent and Trademark Office duly and
lawfully issued United States Patent No. 8,251,051 B2 ("the `051 patent"), entitled "Bug
Killing Gun." A true and correct copy of the `051 patent is attached hereto as EXHIBIT D.
43.
10
44.
11
45.
The patent generally refers to a novel bug killing gun using a compressed gas
12
release mechanism.
13
14
46.
The SKELL products generally covered by this patent include, but are not
15
47.
16 'I
On February 25, 2013, the United States Patent and Trademark Office duly and
17
lawfully issued United States Design Patent No. D676,923 S ("the `923 patent"), entitled
18
"Bug-A-Salt Gun." A true and correct copy of the `923 patent is attached hereto as EXHIBIT
19
E.
20
48.
21
49.
22
50.
The patent refers to the ornamental design for the BUG-A-SALT gun.
SKELL'S TRADEMARKS
23
24
51.
25
SKELL has established enormous goodwill throughout the United States in connection with its
26
27
52.
SKELL owns the following U.S. Trademarks associated with the BUG-A-SALT:
28
s
CROSS-COMPLAINT
2636871 v.3
Serial No.
77888530
85593200
85756716
85762649
85762655
85762662
85762668
86050154
2
3
4
5
6
7
53.
8
9
10
13
14
15
16
17
55.
SALT gun tricks consumers into believing that the Counterfeit BUG-A-SALT is a product of
SKELL, when in fact the Counterfeit BUG-A-SALT is not. HOLLENBERG was aware of
SKELL's trademarks before he began selling the Counterfeit BUG-A-SALT.
24
25
Yet,
20
23
By virtue of its registration for the BUG-A-SALT marks above ("the BUG-A-
54.
19
22
Mark
BUG-A-SALT
A KILLER COMPANY
FIRE YOUR FLY SWATTER
THE ORIGINAL SALT GUN
MR. PINCH
[MR.PINCH IMAGE]
BUG-A-SALT
PITY THE FLY
18
21
Date
12/8/09
4/10/12
10/17/12
10/24/12
10/24/12
10/24/12
10/24/12
8/28/13
SALT Marks"), and as a result of its exclusive use over many years, SKELL has the exclusive
11
12
Registration No.
4202717
4351333
4350005
4423289
4353776
4353778
4353779
4612446
forth herein.
57.
SKELL has not authorized HOLLENBERG to make or sell any products that
utilize the `051 patent nor has SKELL given HOLLENBERG a license to any SKELL patents.
58.
26 '~
27
28
9
CROSS-COMPLAINT
2636871 v.3
59.
including without limitation, by making, offering for sale and selling the Counterfeit BUG-A-
SALT product using substantially the same mechanical structure set forth in the `051 patent.
4
5
60.
SKELL's BUG-A-SALT and BUG-A-SALT 2.0 products fall within the scope
of one or more claims of the `051 patent. HOLLENBERG infringes at least one claim of the
6 ~ `051 patent.
7
61.
62.
HOLLENBERG knew of the `051 patent, has ignored and/or disregarded that his
9
l0
11
12
13
actions constituted infringement of a valid and enforceable patent, and acted despite an
objectively high likelihood that his actions constituted infringement of a valid patent.
63.
14
damages and will suffer sever and irreparable harm as a result of HOLLENBERG's continuing
15
infringement, unless that infringement is enjoined by this Court. The threatened injury to
16
SKELL outweighs any harm the injunction may cause to HOLLENBERG. Injunctive relief
17
18
19
20
21
22
23
24
65.
forth herein.
66.
SKELL has not authorized HOLLENBERG to make or sell any products that
utilize the `923 patent nor has SKELL given HOLLENBERG a license to any SKELL patents.
25
67.
26
68.
27
including without limitation, by making, offering for sale and selling the Counterfeit BUG-A-
28
io
CROSS-COMPLAINT
2636871 v.3
SALT, the design of which is substantially the same as the ornamental design of the `923
2 ~ ~ patent.
3
69.
70.
HOLLENBERG knew of the `923 patent, has ignored and/or disregarded that his
actions constituted infringement of a valid and enforceable patent, and acted despite an
objectively high likelihood that his actions constituted infringement of a valid patent.
7
8
9
71.
73.
12
damages and will suffer sever and irreparable harm as a result of HOLLENBERG's continuing
13
infringement, unless that infringement is enjoined by this Court. The threatened injury to
14
SKELL outweighs any harm the injunction may cause to HOLLENBERG. Injunctive relief
15
16
74.
17
from the sale of the Counterfeit BUG-A-SALT, and SKELL is entitled to recover
18
HOLLENBERG's total profits from these sales pursuant to 35 U.S.C. Section 289.
19
75.
This
20
willful and deliberate infringement justifies an increase of three times the damages to be
21
assessed pursuant to 35 U.S.C. Section 284 and further qualifies this as an exceptional case
22
23
24
TRADEMARK INFRINGEMENT
25
26
27
76.
forth herein.
28
~~
CROSS-COMPLAINT
2636871 v.3
1
2
3
77.
commerce in connection with advertising and sales of the True BUG-A-SALT gun.
78.
79.
registered BUG-A-SALT Marks, with full knowledge of SKELL's superior rights, and with
full knowledge that his infringing use of SKELL's marks was intended to cause confusion,
10
11
12
80.
marks in the same channels of trade in which SKELL's true BUG-A-SALT is offered.
81.
13
connection with the advertising and sale of the Counterfeit BUG-A-SALT has caused, and is
14
15
16
82.
HOLLENBERG's
actions
constitute
willful
17
infringement of SKELL's federally registered marks. The knowing and intentional nature of
18
the acts set forth herein renders this an exceptional case under 15 U.S.C. Section 1117(a).
19
83.
20
damages in the form of lost profits, as well as the continuing loss of the goodwill and
21
reputation established by SKELL in its federally registered marks. This continuing loss of
22
profits and goodwill cannot be adequately calculated and thus constitutes irreparable harm and
23
injury for which SKELL has no adequate remedy at law. SKELL will continue to suffer
24
25
26
27
28
t2
CROSS-COMPLAINT
2636871 v.3
5
6
7
84.
forth herein.
85.
hard-earned goodwill in its marks and the reputation established by SKELL in connection with
the True BUG-A-SALT gun, as well as in order to confuse consumers as to the origin and
10
sponsorship of HOLLENBERG's goods and to pass off his products and services in commerce
11
as those of SKELL.
12
86.
HOLLENBERG's unauthorized and tortious conduct has also deprived and will
13
continue to deprive SKELL of the ability to control the consumer perception of its products
14
offered under SKELL's marks, placing the valuable reputation and goodwill of SKELL in the
15
hands of HOLLENBERG.
16
87.
17
18
19
20
88.
HOLLENBERG had direct and full knowledge of SKELL's prior use of and
21
rights in the BUG-A-SALT Marks before the acts complained of herein. The knowing,
22
intentional and willful nature of the acts set forth herein renders this an exceptional case under
23
24
89.
25
damage as well as the continuing loss of goodwill and reputation established by SKELL in its
26
True BUG-A-SALT product. The continuing loss of goodwill cannot be properly calculated
27
and thus constitutes irreparable harm and injuxy for which SKELL has no adequate remedy at ~
28
13
CROSS-COMPLAINT
2636871 v.3
SKELL will continue to suffer irreparable harm unless the Court enjoins
law
HOLLENBERG's conduct.
6
7
8
9
10
90.
forth herein.
91.
HOLLENBERG's conduct in offering for sale and selling the Counterfeit BUG-
11
A-SALT guns constitutes an unlawful, unfair and fraudulent business act or practice within the
12
meaning of Section 17200 of the Business &Professions Code. Among other things, that
13
conduct is (i) unlawful under 35 U.S.C. Section 271 and 15 U.S.C. Section 1114 as
14
infringements of SKELL and Maggiore's patents and trademarks, (ii) fraudulent under 15
15
U.S.C. Section 1125 as misleading advertising likely to cause confusion, mistake or deception
16
17
business practice because infringing SKELL's patents and trademarks offends public policy, is
18
19
20
21
93.
22
financial damage in the form of lost profits as well as the continuing loss of profits, and the
23
goodwill and reputation established by SKELL in its True BUG-A-SALT product. The
24
continuing loss of profits and goodwill cannot be properly calculated and thus constitutes
25
irreparable harm and injury for which SKELL has no adequate remedy at law. SKELL will
26
continue to suffer irreparable harm unless the Court enjoins HOLLENBERG's conduct.
27
28
14
CROSS-COMPLAINT
2636871 v.3
FALSE ADVERTISING
95.
forth herein.
5
6
96.
Counterfeit BUG-A-SALT guns for sale were untrue and misleading in that they are
reasonably likely to cause a consumer to believe that the Counterfeit BUG-A-SALT is actually
10
11
97.
12 ', that the use of SKELL's BUG-A-SALT Marks was misleading and was likely to cause
13
consumers to believe that the Counterfeit BUG-A-SALT was actually a True BUG-A-SALT.
14
The advertising and sale of the Counterfeit BUG-A-SALT is not in any way endorsed or
15
authorized by SKELL.
16
98.
I
HOLLENBERG's misrepresentations have caused and will
17
misleading advertisements.
18
continue to cause SKELL to lose sales of its True BUG-A-SALT gun to both existing and
19
future customers. SKELL will suffer severe and irreparable harm unless the misleading
20
21
22
INTENTIONAL INTERFERENCE
23
24
25
99.
forth herein.
26
27
between SKELL and retailers Cabela's, Amazon.com, Northern Tool, and Hallmark, aka
28
101. SKELL alleges on information and belief that HOLLENBERG knew that
2
SKELL's ongoing sales under its contracts with these retailers would be harmed by his sale of
102. SKELL is informed and believes that in an effort to interfere with SKELL's
rights under these agreements, HOLLENBERG marketed and sold counterfeit editions of the
BUG-A-SALT gun.
103. SKELL is informed and believes that HOLLENBERG engaged in the conduct,
alleged herein, with the intent to harm SKELL and to financially induce the ultimate
purchasers buying aBUG-A-SALT gun through the online retailers, to purchase the counterfeit
10
11
12
13
Complainants have ascertained the full amount of its damages, it will seek leave of court to
14
15
16 ',
intentional was engaged in for the purpose of depriving Cross-Complainants property and legal
17
rights or otherwise causing injury, and was despicable conduct that subjected Plaintiffs to
18
economic hardships during the startup phase of their company, and was performed with fraud,
19
20
21
22
23
24
relief:
25
A.
A order adjudging HOLLENBERG to have infringed the `O51 and `923 patents;
26
B.
27
28
CROSS-COMPLAINT
2636871 v.3
a.
and
b.
c.
10
11
States;
12
d.
13
14
15
16
C.
17
counterfeit products, sales literature, customer literature or other trade pieces used in the
18
19 I
D.
20
SKELL all profits and revenue earned from selling or offering to sell the Counterfeit BUG-A-
21
SALT products and actual damages to SKELL in an amount not less than a reasonable royalty
22
23
24
25
E.
with 35 U.S.C. Section 284 for HOLLENBERG's willful and deliberate infringement;
F.
G.
fees in accordance with 35 U.S.C. Section 285 and 15 U.S.C. Section 1117;
~~
CROSS-COMPLAINT
2636871 v.3
H.
An award to SKELL for such other relief as the Court deems just and proper.
2
DEMAND FOR TRIAL BY JURY
3
4
5
Cross-Complainants, SKELL and MAGGIORE hereby request trial by jury of all issues
so triable.
6
WILSON ELSER MOSKOWITZ EDELMAN
& DICKER LLP
7
8
9
10
By:
erty, Jr.
E. Pau D
Craig .Hunter
Jura Zibas
Attorneys for Defendants and CrossComplainants SKELL,INC., and LORENZO
MAGGIORE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
~g
CROSS-COMPLAINT
2636871 v.3
PROOF OF SERVICE
1013a(3) CCP Revised 5/1/88
John Hollenberg, etc., et al. v. Skell, Inc, etc., et al., Case No.: LC104710
Attorneys for SKELL,INC. and LORENZO MAGGIORE.
WEMED File No. 17338.00001
2
3
4
I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action; my business address is 555 South Flower Street, Suite
2900, Los Angeles, California 90071.
On December 14, 2016,I caused the foregoing document described as
CROSS-COMPLAINT FOR:(1)DIRECT INFRINGEMENT OF `051 PATENT(35
U.S.C. 271);(2)DIRECT INFRINGEMENT OF `923 PATENT(35 U.S.C. 271);(3)
TRADEMARK INFRINGEMENT(15 U.S.C. 1114);(4)FEDERAL UNFAIR
COMPETITION AND FALSE DESIGNATION OF ORIGIN (15 U.S.C. 1125);(5)
UNFAIR BUSINESS PRACTICES (Cal. Bus. &Prof. Code 17200);(6)FALSE
ADVERTISING (Cal. Bus &Prof. Code 17500);(7)INTENTIONAL INTERFERENCE
WITH CONTRACTUAL RELATIONSHIP
13
14
X
by placing X the true copy(ies)
addressed as follows:
15
16
17
18
19
20
21
22
Christine C. Lyden
Lyden Law Corporation
A Professional Law Corporation
6320 Canoga Avenue, Suite 1400
Woodland Hills, CA 91367
Telephone: (818) 888-8866
(818) 888-5988
Facsimile:
X
by mail. I am "readily familiar" with my firm's collection and processing
correspondence for mailing. Under that practice it would be deposited with U.S. postal service
on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary
course of business. I am aware that on motion ofthe party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
23
24
25
26
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct, and I declare that I am employed in the office of a member of the bar of this
court at whose direction the service was made.
Executed on December 14, 2016, at Los Angeles, California.
~1~~ - ~
2~
Hazel e Nunez
28
19
CROSS-COMPLAINT
2636871v3
Exhibit"E"
vigil Stop 8
Director of the U.S. Patent and Trademark Office
T~
In Complilnce ~i ith 35 U.S.L. 290 and/or 15 U.S.C. l 1 1( you are Hereby advised that a court action has Ueen
on the followine
Central District of California, Western Division
DATE FILED
DOCKET NO.
PLAINTIFF
NATENT OR
TRAL>EMARK NO.
DATE OF PATENT
OR T}tADEMARK
1 8,251,051 B2
8/8/2012
Lorenzo Maggiore
D676,923 S
2/25/2013
Lorenzo Maggiore
3
4
5
In die above
INCLUDED BY
DATE INCLUDED
Amendment
PATENTOR
TIU1DEb1ARK NO.
Answer
DATE OF PATENT
OR TRADEMARK
Cross Bill
Other Pleaduig
3
4
5
vi the aboveentitled case, die following decision has begin rendered or judeeinent issued:
DE- CISION'JUDGEIv1ENT
CLERK
(BY)DEPUTY CLERK
DATE
Copy 1Upon initiation of action, mail this copy to Director Copy 3Upon termination of Hction, mail this cope to Director
Copy 2Upon filing document adding patent(s), mail this copy to Director Cop}'4Case file copy
Exhibit"F"
REPORT ON THE
FILING OR DETERMINATION OF AN
ACTION REGARDING A PATENT OR
TRADEMARK
Mail Stop 8
Director of the U.S. Patent and Trademark Oftice
P.O. Box 1450
Alexandria, VA 22313-1450
TO:
In Compliance with 35 U.S.C. 290 and/or 15 U.S.C. 1 1 16 you are hereby advised that a court action has been
on the following
Central District of California, Western Division
filed in the iJ.s. District Court
~ Trademarks or
DATE FILED
DOCKET NO.
PLAINTIFF
PATENT OR
TRADEMARK NO.
DATE OF PATENT
OR '1'RAllEMARK
1 4202717
12/8/2009
Skell, Inc.
2 4351333
4/10/2012
Skell, Inc.
3 4350005
10/17/2012
Skell, Inc.
4 4423289
10/24/2012
Skell, Inc.,
5 3242776
10/24/2012
Skell, Inc.
In the aboveentitled case, the following patent(s)/ trademarks) have been included:
DATE INCLUDED
PATENT OR
TRADEMARK NO.
INCLUDED E3Y
Amendment
DATE OF PATENT
OR TRADEMARK
Answer
Cross Bill
Other Pleading
1
2
3
4
5
In the above~ntitled case, the following decision has been rendered or judgement issued:
DECISION/JUDGEMENT
CLERK
(BY)DEPUTY CLERK
DATE
Exhibit"G"
REPORT ON THE
FILING OR DETERMINATION OF AN
ACTION REGARDING A PATENT OR
TRADEMARK
Mail Stop 8
Director of the U.S. Patent and Trademark Oftice
P.O. Box 1450
Alexandria, VA 22313-1450
TO:
In Compliance with 35 U.S.C. 290 and/or 15 U.S.C. 1116 you are hereby advised that a court action has been
on the fouowing
DATE FILED
DEFENDANT
PATENT OR
TRADEMARK NO.
DATE OF PATENT
OR'1~RADEMARK
1 4353778
10/24/2012
Skell, Inc.
2 4353779
10/24/2012
Skell, Inc.
3 4612446
8/28/2013
Skell, Inc.
4
5
In the above~ntitled case, the following patent(s)/ trademarks) have been included:
DATE INCLUDED
INCLUDED BY
Amendment
PATENT OR
TRADEMARK N0.
Answer
DATE OF PATENT
OR TRADEMARK
Cross Bill
Other Pleading
1
2
3
4
5
In the above~ntitled case, the following decision has been rendered orjudgement issued:
CLERK
(BY)DEPUTY CLERK
DATE
Copy 1 Upon initiation of action, mail this copy to Director Copy 3Upon termination of action, mail this copy to Director
Copy 2Upon filing document adding patent(s), mail this copy to Director Copy 4Case file copy