Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02145-H-POR

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1 JOHN M. KIM (Bar No. 188997) IP LEGAL ADVISORS, P.C. 2 1940 Gamet Avenue, Suite 230 San Diego, CA 92109 3 Tel: (858) 272-0227 Fax: (858) 272-0221 5 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BRANDON WALSH dba SO CAL INSTALLS, HD INSTALL ANSWER TO COMPLAINT HD INSTALL SOLUTIONS, INC., a INJUNCTIVE California corporation; SO CAL INSTALL; ENRIQUE E. SANTOYO, as an individual; BRYAN AYLWARD, as an individual and DOES 1-20 inclusive, v. Defendant. 17 II-------------------J 18 SOLUTIONS, INC.'s SO CAL INSTALLS' FOR DAMAGES AND RELIEF Attorney for Defendant HD INSTALL SOLUTIONS, INC.

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County of San Diego, State of California.

Moreover, both the Plaintiffs

and the Defendants'

business operations at issue are located in San Diego County. This Court has jurisdiction over the causes of action alleged herein because Plaintiff is informed and believes that the state law violations occurred in San Diego County. The claims asserted herein arise under California Business and Professions Code Sections 14203, 14207, 14208, 14340(a), California Civil Code Sections 3333 and 3294, any other applicable statutory provision, and the common law.

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Answer HD INSTALL denies that the San Diego County Superior Court has jurisdiction over this matter and has accordingly removed this matter to this Court based on federal question HD INSTALL admits that both the Plaintiff and HD INSTALL have business

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operates located in San Diego County. HD INSTALL denies that the San Diego County Superior Court has jurisdiction over the causes of action alleged in the complaint and has accordingly removed this matter to this Court based on supplemental jurisdiction. HD INSTALL is without

knowledge or information sufficient to form a belief as to the truth of the allegations of the remainder of Paragraph 1 and, therefore, denies such allegations. 2. Venue is appropriate in this matter because Defendants HD

INSTALL SOLUTIONS, INC. and ENRIQUE E. SANTOYO reside in the County of San Diego, State of California. Answer HD INSTALL denies that venue is proper in the San Diego County Superior Court and has accordingly removed this matter to this Court. THE PARTIES 3. Plaintiff is, and at all times mentioned herein was, an individual

residing in San Diego, California doing business as So Cal Installs. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 3 and, therefore, denies such allegations. 4. Plaintiff is informed and believes, and on the basis of such

information and belief, alleges that Defendant, HD INSTALL SOLUTIONS, INC., is, and at all times mentioned herein was, a corporation, organized and existing under the laws of the State of California and doing business in the State of California. Answer HD INSTALL admits the allegations of Paragraph 4.

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5.

Plaintiff is informed and believes, and on the basis of such

information and belief, alleges that Defendant, SO CAL INSTALL, is, and at all times mentioned herein was, a company of unknown form doing business in the State of California. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 5 and, therefore, denies such allegations. 6. Defendant, ENRIQUE E. SANTOYO, is, and at all times

mentioned herein was, an individual residing in the City of San Diego, in the State of California. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 6 and, therefore, denies such allegations. 7. Defendant, BRYAN AYLWARD, is, and at all times mentioned

13 herein was, an individual residing in the State of California. 14 15 16 17 18 19 20 21 22 23 24 25 26 Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth ofthe allegations of Paragraph 7 and, therefore, denies such allegations. 8. Plaintiff does not know the true legal names or legal capacities of

the defendants sued herein as DOES 1-20, inclusive, and therefore sue said defendants by such fictitious names. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 8 and, therefore, denies such allegations. 9. Plaintiff is informed and believes, and thereon alleges, that each of

the defendants designated herein as DOE is legally responsible in some manner for the matters herein alleged, and is legally responsible in some manner of causing the injuries to Plaintiff as hereinafter alleged.

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each defendant was the agent, partner or employee of every other defendant, and in doing the acts alleged in this complaint, was acting within the course, scope, and authority of that agency, partnership, or emplOYment, and with the knowledge and consent of each of the other defendants.

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for the purpose of installing television systems. On May 3,2007, Plaintiff registered the "DBA" of "So Cal Installs" with the County of San Diego.

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Install for the purpose of installing television systems. On information and belief, Defendants
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1 knew that Plaintiff has already started a company named "So Cal Installs" and Defendants 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 18. intentionally came up with an extremely similar name in order to attempt to deceive the public. Answer HD INSTALL denies each and every allegation of Paragraph 14. 15. On or about June 29,2007, Defendants created the web-site for So Defendants' website blatantly copied text

Cal Install with an internet address of socalinstall.com.

from Plaintiffs website. Several sections of Defendants' website including the 'description of services offered' portion copied Plaintiffs web-site word for word. Answer HD INSTALL denies each and every allegation of Paragraph 15. 16. In or about September 2007, Defendants started a new company

named HD Install Solutions, Inc. HD Install Solutions, Inc's web-site is linked to the socalinstall.com web-site. HD Install Solutions, Inc. also is using text from Plaintiffs web-site to sell product through Craig's List, a classified ads web-site. Answer HD INSTALL denies each and every allegation of Paragraph 16. 17. word copying of Plaintiffs internet websites. Answer HD INSTALL denies each and every allegation of Paragraph 17. FIRST CAUSE OF ACTION Misappropriation of Likeness and Violation of Rights of Publicity (Against all Defendants) Plaintiff incorporates by reference and realleges paragraphs 1 On information and belief, Defendants have also used word for website in other advertisements for services on Craig's List and other

through 17 as though fully set forth herein.

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Answer HD INSTALL repeats and incorporates by reference its responses to the allegations contained in Paragraphs 1 through 17 above as though fully set forth herein. 19. Defendants knowingly and intentionally copied the contents of

Plaintiff's web-site, and are using it, or portions of it, in a commercial setting. Answer HD INSTALL denies each and every allegation of Paragraph 19. 20. development of their web-site. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 20 and, therefore, denies such allegations. 21. Defendant's sole purpose of exploiting Plaintiff's advertisements Plaintiff's company and web-site existed prior to Defendant's

was for financial gain associated with the sale of their television installment company. Answer HD INSTALL denies each and every allegation of Paragraph 21. 22. At no time prior to the development or distribution of Defendant's

website did Plaintiff provide authorization for Defendants to use its website contents. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 22 and, therefore, denies such allegations. 23. At no time after the development or distribution of Defendant's

website did Plaintiff provide Defendants authorization to use its website contents. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 23 and, therefore, denies such allegations.

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website contents under Civil Code §3344, Plaintiffhas incurred actual damages according to proof at time of trial.

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despicable and deliberate conduct and were undertaken with fraud, oppression and malice towards Plaintiff, as these terms are defined in California Civil Code §3294 and therefore entitle Plaintiff to punitive damages according to proof.

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created by it between the years 2006 through 2007. All such works were and are original authorships. As such Plaintiff was and is the legal and beneficial holder of trademark and copyright interests in all such materials. Therefore, at all relevant times Plaintiff alleges that it
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1 was the legal and beneficial holder of trademark interests and copyright interests in all relevant 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 materials. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 28 and, therefore, denies such allegations. 29. Defendants, and each of them, have engage in repeated violations

of Plaintiff's copyright and trademark interests by engaging in the acts of publicly displaying, broadcasting and otherwise exhibiting materials wherein Plaintiff holds a copyright and trademark interest. Defendants' violations include but are not limited to reproduction of Plaintiff's copyrighted and trademarked materials for commercial sale through the Internet and other formats. Said conduct was done without the express or implied permission, license or authorization of Plaintiff and has infringed on Plaintiff's exclusive right to publicly exhibit, display or broadcast or otherwise exhibit Plaintiff's materials. Answer HD INSTALL denies each and every allegation of Paragraph 29. 30. In addition to the unauthorized reproduction of Plaintiff's

copyrighted and trademarked materials by Defendants, and each of them, Defendants have further infringed on Plaintiff's rights by engaging in specific acts of duplicating Plaintiff's materials

19 without providing proper credit to Plaintiff. Plaintiff is informed and believes, and thereon 20 21 22 23 24 25 26 alleges, that Defendants, and each of them, have engaged and are engaging in numerous other similar misattributions of credit. Answer HD INSTALL denies each and every allegation of Paragraph 30. 31. Defendants' conduct is an express violation of relevant provisions

of California State law, including but not limited to California Civil Code § §3344 et seq.; Business & Professions §14320 et seq.

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trademark rights was done willfully, knowingly and intentionally by Defendants, and each of them.

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Plaintiffhas readily available all relevant materials whose copyright Defendants have allegedly violated. However, due to the bulk of said materials it is impracticable for Plaintiff to attach the materials to Plaintiffs Complaint. However, said materials are available for inspection by the

Court and all parties upon request in full compliance with the requirements of Code of Civil

18 herein, there is now due and owing from Defendants, and each of them, the full amount of 19 20 Plaintiffs losses, subject to proof at trial, and legal interest on the principal amount for the period commencing in or about June 2007 and continuing up through the present time.

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alleged herein, Plaintiff has been without the use of such funds. The reasonable and foreseeable monetary damage resulting from such loss of use is presently not fully ascertained, but subject to proof at trial.

HD INSTALL denies each and every allegation of Paragraph 35.
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36.

As a further direct and proximate result of the wrongful conduct of

Defendants, and each of them, as alleged herein. Plaintiffhas incurred costs and expenses for prosecution of the present action, expert witness fees, attorney fees, and costs and expenses in prosecuting the present action, all in an amount not fully ascertained, but to be shown according to proof at trial. Answer HD INSTALL denies each and every allegation of Paragraph 36. 37. The intentional, callous, willful, wanton and oppressive acts of

defendants, as set forth herein-above, are sufficient to warrant the imposition of punitive and exemplary damages against defendants in an amount sufficient to punish and make an example of them. The exact amount of such damages are presently unknown to Plaintiffs, but will be subject to proof at trial. Answer HD INSTALL denies that its alleged actions are sufficient to warrant the imposition of punitive and exemplary damages. HD INSTALL is without knowledge or information sufficient to form a belief as to the remaining allegations of Paragraph 37 and, therefore, denies such allegations. THIRD CAUSE OF ACTION Intentional Tortious Interference With Prospective Business Relationships (Alleged Against All Defendants) 38. Plaintiff incorporates by reference and realleges paragraphs 1

through 37 as though fully set forth herein. Answer HD INSTALL repeats and incorporates by reference its responses to the allegations contained in Paragraphs 1 through 37 above as though fully set forth herein. 39. At all times material hereto, Defendants have been and are aware of

Plaintiffs business relationship and reasonable expectations regarding prospective economic advantage at So Cal Installs.

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continue to suffer interference with prospective economic advantage including, without limitation, expenses he had reasonable expected not to incur from additional claims, investigation and settlement costs. These damages are in excess of the jurisdictional requirements of this Court, according to proof at trial. Defendants' conduct is characterized by fraud, oppression and/or malice which entitles Plaintiff to an award of exemplary damages against Defendants.

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them, Plaintiffhas been forced to expend additional time and effort in an attempt to recover
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1 money owed from Defendants. As a further direct and proximate result of the aforementioned 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 46. wrongful conduct, Plaintiffhas incurred costs and expenses for prosecution of the present action, expert witness fees and attorney fees all in an amount not yet fully ascertained, but to be shown according to proof at trial. Answer HD INSTALL denies each and every allegation of Paragraph 44. 45. The intentional, callous, willful, wanton and oppressive acts of

defendants, as set forth herein-above, are sufficient to warrant the imposition of punitive and exemplary damages against defendants in tan amount sufficient to punish and make an example of them. The exact amount of such damages are presently unknown to Plaintiff, but will be subject to proof at trial. Answer HD INSTALL denies that its alleged actions are sufficient to warrant the imposition of punitive and exemplary damages. HD INSTALL is without knowledge or information sufficient to form a belief as to the remaining allegations of Paragraph 45 and, therefore, denies such allegations. FOURTH CAUSE OF ACTION Dilution Of Trademark (As Against All Defendants) Plaintiff incorporates by reference and realleges paragraphs 1

through 45 as though fully set forth herein. Answer HD INSTALL repeats and incorporates by reference its responses to the allegations contained in Paragraphs 1 through 45 above as though fully set forth herein. 47. Plaintiff adopted the mark So Cal Installs and used it continuously

in commerce for sale of services pertaining to television installation.

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others, by among, other things, prominently displaying the mark So Cal Installs on their website associated therewith.

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said names and marks by Defendants is without permission or authority of Plaintiff and said use

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and unless restrained and enjoined, will continue to do so, all to Plaintiffs irreparable damage. It would be difficult to ascertain the amount of compensation which could afford Plaintiff adequate 13 Answer To Complaint

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1 relief for such continuing acts, and a multiplicity of judicial proceedings would be required. 2 Plaintiff's remedy at law is not adequate to compensate it for injuries threatened.

15 unfair competition. As stated herein, Defendants have engaged in unlawful and fraudulent 16 business act and/or practices within the meaning of California Business & Professions Code

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acts: (1) Misrepresenting to consumer the identities and sources of set-up and television installation; (2) Misappropriations of web-site likenesses for the purpose of financial gains; and

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engaged in unfair, fraudulent and unlawful business practices. Such tactics harm consumers directly by misrepresenting the company name and contents of the web-site or their equivalent.
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Answer HD INSTALL denies each and every allegation of Paragraph 56. 57. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 and continues to be harmed. Answer HD INSTALL denies each and every allegation of Paragraph 57. 58. Plaintiff alleges under information and belief that the above As a direct result of the above-mentioned acts, Plaintiffhas been,

mentioned business practices have been ongoing for the past six months and will continue if Defendants are not enjoined. Answer HD INSTALL denies each and every allegation of Paragraph 58. 59. Pursuant to California Business Professions Code §17203, Plaintiff,

seeks an order of this Court prohibiting Defendants from continuing to engage in the unlawful, unfair or fraudulent business acts or practices set forth in this Complaint and from failing to fully disclose the true facts as ser forth herein. Plaintiff also requests an order from the Court requiring that Defendants provide complete equitable monetary relief so as to require Defendants to surrender all monies obtained through its acts of unfair competition, including all monies earned as a result of such acts and practices in order to prevent Defendants from benefiting from the

19 practices that constitute unfair competition. Plaintiff also requests the court to impose an asset 20 21 22 23 24 25 26 27 28 60. freeze or constructive trusts over such monies. Answer HD INSTALL denies each and every allegation of Paragraph 59. SIXTH CAUSE OF ACTION Common Law Unfair Competition And California Unfair Competition ["Palming Off'] (As Against All Defendants) Plaintiff incorporates by reference and realleges paragraphs 1

through 59 as though fully set forth herein. Answer

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HD INSTALL repeats and incorporates by reference its responses to the allegations contained in Paragraphs 1 through 59 above as though fully set forth herein. 61. Plaintiff adopted the mark So Cal Installs and used it continuously

in commerce for services. In September 2007, Plaintiff filed an application for registration of said mark in the State of California covering the use of said mark on television installation services. Answer HD INSTALL is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 61 and, therefore, denies such allegations. 62. Plaintiff is informed and believes, and on that basis alleges, that

Defendants' conduct was unlawful, unfair and/or fraudulent and has the potential to cause confusion in the marketplace. Answer HD INSTALL denies each and every allegation of Paragraph 62. 63. As a direct and proximate result of Defendants' conduct, Plaintiff

16 has, and will continue to suffer damages to its business, reputation and goodwill, in an amount to 17 be established at trial. 18 19 20 21 22 23 24 25 26 Answer HD INSTALL denies each and every allegation of Paragraph 63. 64. Defendants' conduct constitutes unfair competition and deceptive

practices under California Business & Professional Code §§ 17200 et seq. and 17500 et seq. Answer HD INSTALL denies each and every allegation of Paragraph 64. 65. Defendants' conduct, as alleged above, namely use of said

information to benefit Defendants' competitive services, constitutes unfair competition under California common law.

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Answer HD INSTALL denies each and every allegation of Paragraph 65. 66. As a direct and proximate result of Defendants' conduct, Plaintiff

has, and will continue to suffer damages to its business, reputation and goodwill, and to lose sales and profits that it would have made but for Defendants' conduct, in an amount to be established at trial. In addition, Defendants' conduct, unless enjoined and restrained, has, and will continue to cause irreparable harm to plaintiffs reputation and goodwill, for which Plaintiff has no adequate remedy at law. Answer HD INSTALL denies each and every allegation of Paragraph 66. 67. Plaintiff is informed and believes, and on that basis alleges, that

Defendants' acts as described above were done with oppression, fraud and malice, entitling Plaintiff to an award of punitive dames, in an amount to be established at trial. Answer HD INSTALL denies each and every allegation of Paragraph 67.

SEPARATE AFFIRMATIVE DEFENSES As a further answer to Plaintiffs claims, HD INSTALL asserts the following affirmative defenses: L FAILURE TO STATE A CAUSE OF ACTION Plaintiffs complaint, and each and every cause of action therein, fails to state facts

sufficient to constitute a cause of action against HD INSTALL. II. FAIR USE Plaintiff s trademark and copyright infringement causes of action are barred by the doctrine of fair use.

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III. TRADEMARK INVALIDITY

Plaintiff s purported trademark infringement count is barred on the grounds that 4 5 Plaintiffs alleged rights to the mark SO CAL INSTALLS is invalid because the mark is highly descriptive or generic. IV. COPYRIGHT INVALIDITY

Plaintiffs purported copyright infringement count is barred on the grounds that 9 10 Plaintiffs alleged rights to the content of its www.socalinstalls.com content lacks the requisite originality. website is invalid because the

V.
INNOCENT INTENT Plaintiffs causes of action are barred and/or its remedies are limited on grounds

VI. LACHES Plaintiff has delayed, for an unreasonable period of time, asserting its claims 18 19 against HD INSTALL and those delays have prejudiced HD INSTALL. Plaintiffs causes of action are, therefore, barred by the doctrine of laches. VII. UNCLEAN HANDS Plaintiff s causes of action are barred by application of the doctrine of unclean

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VIII. PREEMPTION state law causes of action are preempted by federal trademark law.

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STATUTES OF LIMITATIONS 18

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X.
ESTOPPEL

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INSTALL. XI. WAIVER

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Dated: November 13,2007

BY/~~ JO M.KIM A tomeys for Defendant HD INSTALL SOLUTIONS, INe.

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