This case was last updated from Los Angeles County Superior Courts on 06/15/2022 at 23:43:37 (UTC).

EVAN ISRAEL BRENNER VS MIKA JAYMES INC ET AL

Case Summary

On 01/19/2018 EVAN ISRAEL BRENNER filed a Personal Injury - Other Personal Injury lawsuit against MIKA JAYMES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MALCOLM MACKEY, ELIZABETH R. FEFFER, DAVID S. CUNNINGHAM III, GAIL KILLEFER and RICHARD J. BURDGE JR.. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0971

  • Filing Date:

    01/19/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MALCOLM MACKEY

GAIL KILLEFER

ELIZABETH R. FEFFER

DAVID S. CUNNINGHAM III

RICHARD J. BURDGE JR.

 

Party Details

Defendants and Cross Plaintiffs

MIKA JAYMES INC

JAHAVERY MEHRAD

Cross Defendants

BRENNER MIKA JAYMES

BRENNER EVAN ISRAEL

Guardian Ad Litem and Cross Defendant

BRENNER EVAN ISRAEL

Attorney/Law Firm Details

Respondent, Defendant and Cross Plaintiff Attorneys

RICHARDS RONALD N. ESQ.

MURO RAYMOND

MURO RAYMOND J. ESQ.

MURO RAYMOND J.

RICHARDS RONALD N.

Cross Defendant Attorney

BRODY LORI SAMBOL

Minor Attorney

GEORGE ERIC M. ESQ.

Other Attorneys

NICHOLSON GUY CRAIG

NICHOLSON GUY C. ESQ.

KITSON ROBERT M

KITSON ROBERT M.

GEORGE ERIC M.

 

Court Documents

Notice - NOTICE PLAINTIFF'S OSC STATEMENT

6/7/2022: Notice - NOTICE PLAINTIFF'S OSC STATEMENT

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SUBMISSION OF MINOR'S COMPROMISE BASE...)

6/9/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SUBMISSION OF MINOR'S COMPROMISE BASE...)

Proof of Service (not Summons and Complaint)

5/10/2022: Proof of Service (not Summons and Complaint)

Notice of Case Reassignment and Order for Plaintiff to Give Notice

4/29/2022: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANTS'DEFENDANTS MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

10/8/2021: Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANTS'DEFENDANTS MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES

10/8/2021: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES

Reply - REPLY TO PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT OF FACTS RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENTADJUDICATION

10/8/2021: Reply - REPLY TO PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT OF FACTS RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENTADJUDICATION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

10/13/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

10/13/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Ruling

10/14/2021: Notice of Ruling

Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANTS NOTICE RE DOCUMENTS FILED CONDITIONALLY UNDER SEAL

10/21/2021: Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANTS NOTICE RE DOCUMENTS FILED CONDITIONALLY UNDER SEAL

Minute Order - MINUTE ORDER (HEARING ON MOTION TO SEAL MOTION TO CONDITIONALLY SEAL EXHIBI...)

10/28/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO SEAL MOTION TO CONDITIONALLY SEAL EXHIBI...)

Notice - NOTICE PLAINTIFF'S NOTICE OF FILING EXHIBIT 9 TO THE APPENDIX OF EVIDENCE

11/5/2021: Notice - NOTICE PLAINTIFF'S NOTICE OF FILING EXHIBIT 9 TO THE APPENDIX OF EVIDENCE

Opposition - OPPOSITION CROSS-PLAINTIFFS OPPOSITION AND MEMORANDUM OF POINTS AND AUTHORITIES TO CROSSDEFENDANTS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/24/2021: Opposition - OPPOSITION CROSS-PLAINTIFFS OPPOSITION AND MEMORANDUM OF POINTS AND AUTHORITIES TO CROSSDEFENDANTS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Request for Judicial Notice

11/24/2021: Request for Judicial Notice

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING OF EVIDENCE IN SUPPORT OF CROSS-PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

11/24/2021: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING OF EVIDENCE IN SUPPORT OF CROSS-PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Exhibit List - EXHIBIT LIST APPENDIX OF EVIDENCE IN SUPPORT OF CROSS-PLAINTIFFS' OPPOSITION TO CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

11/24/2021: Exhibit List - EXHIBIT LIST APPENDIX OF EVIDENCE IN SUPPORT OF CROSS-PLAINTIFFS' OPPOSITION TO CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Separate Statement

11/24/2021: Separate Statement

167 More Documents Available

 

Docket Entries

  • 08/16/2022
  • Hearing08/16/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Petition to Confirm Minor's Compromise

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  • 06/09/2022
  • Docketat 08:30 AM in Department 37, Gail Killefer, Presiding; Order to Show Cause Re: (submission of minor's compromise based on CRS reservation) - Not Held - Taken Off Calendar by Court

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  • 06/09/2022
  • DocketMinute Order ( (Order to Show Cause Re: submission of minor's compromise base...)); Filed by Clerk

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  • 06/07/2022
  • DocketNotice (OSC Statement); Filed by Evan Israel Brenner (Legacy Party)

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  • 05/18/2022
  • Docketat 08:30 AM in Department 37; Hearing on Petition to Confirm Minor's Compromise - Not Held - Rescheduled by Party

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  • 05/10/2022
  • DocketProof of Service (not Summons and Complaint); Filed by Evan Israel Brenner (Legacy Party)

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  • 04/29/2022
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 03/29/2022
  • Docketat 10:00 AM in Department 37; Jury Trial ((3 to 4 days)) - Not Held - Vacated by Court

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  • 03/23/2022
  • DocketNotice (of Court Action); Filed by Evan Israel Brenner (Legacy Party)

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  • 03/22/2022
  • Docketat 08:30 AM in Department 37; Final Status Conference - Not Held - Vacated by Court

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250 More Docket Entries
  • 03/12/2018
  • DocketSummons; Filed by Evan Israel Brenner (Legacy Party); Mika Jaymes Brenner (Legacy Party)

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  • 02/28/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 02/28/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL EX PARTE

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  • 02/06/2018
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 02/06/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 02/06/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 01/30/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/30/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/19/2018
  • DocketComplaint; Filed by null

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  • 01/19/2018
  • DocketCOMPLAINT FOR (1) RIGHT OF PUBLICITY UNDER CIVIL CODE 3344; ETC

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Complaint Information

1 BROWNE GEORGE ROSS LLP

Keith J. Wesley (State Bar No. 229276)

2|l kwesley@bgrfirm.com Superior Coupt of California 2121 Avenue of the Stars, Suite 2800 . - Conmtrartac Anoples 3 || Los Angeles, California 90067 : | c MAR 2 3.2018

Telephone: (310) 274-7100

4 || Facsimile: (310) 275-5697 SBerti R Canies, acuuiyye “ - i . - BYMM -~ | 5.|{ Attorneys for Plaintiff Evan Israel Brenner on | Jodi Cara » Deputy

behalf of his minor child Mika Jaynes Brenner

6 r . |

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 “COUNTY OF LOS ANGELES, CENTRAL DISTRICT 10 . | ' ER on behalf No. 909711/ 11 || EVAN ISRAEL BRENNER on behalf of his | Case No. BE696917 BC 70 minor child MIKA JAYMES BRENNER, Assigned to the'Hon. Malcolm H. Mackey 12 , Department 55 ' . Plaintiff, . | ‘ 13 - | | . " PROOF OF SERIVCE OF SUMMONS,— | VS, ' ~ ) COMPLAINT, AND RELATED

14 11 | - DOCUMENTS ON DEFENDANT MIKA

MIKA JAYMES, INC., a California JAYMES, INC. 15 || corporation, MEHRAD JAHAVERY, an . individual, and DOES 1-10, 16 | Complaint filed January 19,2018 | Defendants. ' | Trial Date: None Set

D f:::r; ._P’,’ . 23 ;n:*) N *and

R €T 24

r"‘-{'g,) ey 25

Tentative Rulings

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Case Number: ****0971 Hearing Date: December 10, 2021 Dept: 37

HEARING DATE: December 10, 2021

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTIES: Cross-Defendant Evan Israel Brenner, individually and on behalf of his minor child Mika Jaymes Brenner

OPPOSING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Cross-Defendant’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

OPPOSITION: November 24, 2021

REPLY: December 3, 2021

TENTATIVE: Cross-Defendants’ motion is granted as to the first, second, fourth and fifth causes of action and otherwise denied. Cross-Defendants are to give notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”) (“Plaintiff”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages.

In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On October 12, 2018, MJI and Javahery, individually and on behalf of his minor child Charlotte Javahery filed a Cross-Complaint against Evan Brenner, individually and as guardian ad litem for Mika Jaymes Brenner. (“Cross-Defendants”) The Cross-Complaint alleges the following causes of action: (1) violation of 15 U.S.C. ; 8131, (2) violation of 15 U.S.C. ; 1125, (3) violation of Business & Professions Code ; 17525, (4) violation of Business and Professions Code ; 17200, (5) intentional infliction of emotional distress.

Cross-Defendants now moves for summary judgment or, in the alternative, summary adjudication as follows:

  1. The First Cause of Action for 15 U.S.C. ; 8131 (Cyberpiracy) fails because Cross-Complainants, Mika Jaymes Inc. and Mehrad Javahery, individually and on behalf of his minor child Charlotte Javahery (collectively, “Cross-Complainants”), cannot establish essential elements.

  2. The Second Cause of Action for 15 U.S.C. ; 1125 (Cybersquatting) fails because Cross-Complainants cannot establish essential elements.

  3. The Third Cause of Action for Bus. and Prof. Code ; 17525 (Unlawful Domain registration) fails because Cross-Complainants cannot establish essential elements.

  4. The Fourth Cause of Action for Bus. and Prof. Code ; 17200 (Unfair Business Practices) fails because Cross-Complainants cannot establish essential elements.

  5. The Fifth Cause of Action for Intentional Infliction of Emotional Distress fails because Cross-Complainant Mehrad Javahery cannot establish essential elements.

  6. The Third Cause of Action for Bus. and Prof. Code ; 17525 (Unlawful Domain registration) fails because it is pre-empted by federal law.

Cross-Defendants’ notice of motion does not comply with California Code of Civil Procedure, section 437c(f)(1). Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Issues 3 and 6 address the same cause of action. Thus, the court will analyze the parties’ arguments according to the causes of action.

Evidentiary Objections

Cross-Defendants’ Objections to Evan Brenner Deposition Transcript

Objection 1: overruled, not irrelevant.

Cross-Defendants’ Objections to MJI PMK Deposition Transcript

Objection 1: overruled. Declarant testified that he did not have documents evidencing damages to MJI. However, Declarant was then asked if he believed it happened, and Declarant may state his belief as to what happened.

Cross-Defendants’ Objections to Exhibit C in Support of Opposition

Objection 1: sustained. Hearsay without exception.

Request for Judicial Notice

Cross-Defendants requests judicial notice of the following in support of their motion:

  1. According to the Office of the California Secretary of State, Mika Jaymes, Inc. was incorporated on January 24, 2006.

  2. On September 29, 2021, Evan Brenner filed, on behalf of his minor child Mika Jaymes Brenner, a Petition for Cancellation of the mika jaymes® trademark.

  3. As of September 29, 2021, the mikajaymes.com website continues to exist and offer products for sale.

Cross-Defendants’ requests are granted except as to item 3, which is denied. Cross-Defendants do not demonstrate that item 3 is a proper matter for judicial notice. As to the remaining items in the parties’ requests, the existence and legal significance of these items are proper matters for judicial notice. (Evidence Code ; 452, subds. (c), (d), (h).)

Cross-Complainants request judicial notice of the following in support of their opposition:

  1. The Superior Court of California Statewide Civil Fee Schedule (Exhibit 1)

  2. Cross-Defendants filed their complaint on January 19, 2018

Cross-Complainants’ request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinesley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475 (Leyva)) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Factual Summary

On January 20, 2018, Mehrad Javahery registered www.michajames.com, one of the Mika Jaymes domain names described in the Cross-Complaint. (Separate Statement in Support of Motion (“DSS”), ¶ 4.) Evan Brenner registered domain names containing the name “mika jaymes” and variations thereof (“Mika Jaymes Domain Names”) between January 1, 2018 and January 20, 2018 and an additional domain name on March 27, 2021. (DSS ¶ 5; Declaration of Evan Brenner (“Brenner Decl.”), ¶¶ 9, 14; Kitson Decl., Exh. 6 (Brenner Deposition), 91:1-10, 91:16-20.)

  1. Mika Jaymes Domain Names

According to Cross-Defendants, Evan Brenner registered the Mika Jaymes Domain Names “to protect his daughter from further exploitation of her name without her consent.” (DSS ¶ 5.) Additionally, Cross-Defendants contend that Mr. Brenner registered the Mika Jaymes Domain Names without any intent to profit. (DSS ¶ 6; Brenner Decl. ¶ 17.) Further, Cross-Defendants contends that Mr. Brenner did not provide any “misleading false contact information” when he made the registrations of the Mika Jaymes Domain Names and did not intentionally fail to maintain accurate contact information. (DSS ¶ 7; Brenner Decl. ¶ 18.)

According to Cross-Complainants, Mika Brenner has allegedly engaged in commerce involving social media accounts. (Separate Statement in Support of Opposition (“PSS”), ¶ 5; Exhibits in Support of Opposition, Exh. A (Brenner Deposition), 95:4-7, 96:7-25.) Further, Cross-Complainants dispute Cross-Defendants’ assertion that Evan Brenner did not provide false contact information. (PSS ¶ 7.) According to Cross-Complainants, the email address used was not identifiable to any particular person. (PSS ¶ 7; Kitson Declaration, Exh. 9 (Domain Names).)Additionally, Cross-Complainants assert that because Mr. Brenner was experiencing financial trouble, “a jury could reasonably infer intent.” (Exhibits in Support of Opposition, Exh. A (Brenner Deposition), 93:3-94:7.) According to Cross-Complainants, the filing of Mr. Brenner action shortly after registration was a means to “leverage pre-litigation demands with an intent to profit from his act.” (PSS ¶ 7.)

  1. Charlotte Javahery Domain Names

Cross-Defendant contends that on January 4, 2018, Mr. Brenner registered charlottejavahery.com and a variation, charlottejavaheri.com (the “Charlotte Javahery Domain Names”) without any intent to profit from the registration. (DSS ¶ 8; Brenner Decl. ¶¶ 10, 17.) According to Cross-Defendant, Mr. Brenner also did not provide false contact information or intentionally fail to maintain accurate contact information in connection with registration of the Charlotte Javahery Domain Names. (DSS ¶ 9; Brenner Decl. ¶ 18.)

Cross-Complainants dispute Cross-Defendants’ contentions about the Charlotte Javahery Domain Names for the same reasons previously stated as to the Mika Jaymes Domain Names. (PSS ¶¶ 8-9.)

It is undisputed that Brenner surrendered the Charlotte Javahery Domain Names and that they are now available for purchase. (DSS ¶¶ 10-11; Brenner Decl. ¶¶19, 20.)

  1. Roddy Javahery Domain Names

On January 4, 2018, Mr. Brenner registered the domain names roddyjavahery.com and roddyjavaheri.com. (DSS ¶ 12; Brenner Decl. ¶¶ 11, 17.) Further, Mr. Brenner registered mehradjavahery.com on January 4, 2018 and roddyjaymes.com and roddyjames.com on March 27, 2018. (collectively, the “Roddy Javahery Domain Names”). (Id.) According to Cross-Defendants, the Roddy Javahery Domain Names were registered without any intent to profit from them and Mr. Brenner did not provide false contact information when making the registration or intentionally fail to maintain accurate contact information. (DSS ¶¶ 12-13; Brenner Decl. ¶¶ 11, 17, 18.) It is undisputed that Mr. Brenner surrendered the Roddy Javahery Domain Names, which are available for purchase. (DSS ¶ 15; Brenner Decl. ¶ 19.)

Cross-Complainants dispute Cross-Defendants’ contentions about the Roddy Javahery Domain Names for the same reasons previously stated as to the Mika Jaymes Domain Names. (PSS ¶¶ 12-13.)

  1. Mika Brenner’s Knowledge

Mika Jaymes Brenner was 12 years old in January 2018 and would have been 13 in January 2019. (DSS ¶ 17; Declaration of Mika Jaymes Brenner (“Mika Brenner Decl.”), ¶ 8.) According to Cross-Defendants, Mika Brenner has never registered a domain name and therefore did not register the Mika Jaymes Domain Names, the Charlotte Javahery Domain Names, or the Roddy Javahery Domain Names. (DSS ¶ 18; Brenner Decl. ¶¶ 9-11, 13; Mika Jaymes Decl. ¶ 9.) According to Cross-Defendants, Mika Brenner had no knowledge that any domain names were being registered by Mr. Brenner. (DSS ¶ 19; Brenner Decl. ¶ 13; Mika Jaymes Decl. ¶ 9.)

According to Cross-Complainants, “registering a social media account creates a domain name,” and Mika Brenner created multiple social media accounts. (PSS ¶¶ 18-19.)

  1. Conducting Business

According to Cross-Defendants, neither Mika Brenner nor Evan Brenner have ever conducted business using the Mika Jaymes Domain Names, Charlotte Javahery Domain Names or Roddy Javahery Domain Names. (the “Domain Names”) (DSS ¶ 21; Brenner Decl. ¶¶ 19, 21, 22, Mika Jaymes Decl. ¶ 11.) Specifically, Cross-Defendants assert that Mr. Brenner and Mika Brenner have not: (1) made a website for any Domain Names, (2) used any domain names in any manner, (3) diverted business from Mika Jaymes, Inc. to any website, (4) competed with or impersonated Mika Jaymes, Inc., Charlotte Javahery or Roddy Javahery, (5) counterfeited the Mika Jaymes trademark, (6) offered to transfer, sell or assign the Domain Names for consideration. (DSS ¶¶ 21-27; Brenner Decl. ¶¶ 13, 16, 19, 21, 22, 23, 24; Mika Jaymes Decl. ¶¶ 11, 12, 13, 14-15.)

According to Cross-Complainants, registering domain names for ecommerce is “only one reason why they are created.” (PSS ¶ 21; Exhibits in Support of Opposition, Exh. B (Mika Jaymes PMK Deposition), 175:14-176:19.) Further, Cross-Complainants assert that domain names do not have to be actively used for business to constitute diverting business, as “the fact that domain names were purchased diverts business from the true domain” and “diverts traffic and creates problems.” (PSS ¶ 24; Exhibits in Support of Opposition, Exh. B (Mika Jaymes PMK Deposition), 175:14-176:19.)

Cross-Complainants cite to the deposition of Mehrad Javahery as Mika Jaymes, Inc.’s Person Most Knowledgeable (“PMK”) in support of their arguments. Mr. Javahery testified as follows:

Q: Do you have any documents which would indicate that customers or potential customers of Mika Jaymes, Incorporated, had their web traffic diverted to any website domain which was registered by Evan Brenner?

A: I – I’m not that technically advanced. I don’t know.

Q: Okay. Is that a question that we should be asking somebody else like Mark?

A: No.

Q: Okay.

A: That’s a question that I don’t think anyone could really answer. How would you know that the traffic that should have come to my site? I’m sure it has. I’m sure that that’s – that has happened. But how? You know, it’s very difficult to find documentation on that matter.

Q: So you believe that it’s happened; correct?

A: It’s definitely a – Mr. Brenner has taken many of the domain spellings of Mika Jaymes that he’s stated he did out of anger. So one of the – I don’t know how many he took. Like 40 of them, or 30 of them. I’m sure he’s diverted traffic and created many, many problems for us by doing so.

Q: And what makes you sure of that?

Q: Like I said, it’s not something I can be sure of. But it’s – when you do things like that, you create problems. When somebody is searching you and there’s a whole bunch of other domain names, it becomes a problem, I’m sure.

(Exhibits in Support of Opposition, Exh. B (Mika Jaymes PMK Deposition), 175:14-176:19

  1. Demand Letter

On January 10, 2018, a letter was sent to Mehrad Javahery. (DSS ¶ 35; Kitson Decl., Exh. 8 (Letter).) Cross-Defendants assert that the letter was a pre-litigation demand. (Id.) Cross-Complainants dispute this characterization of the letter and assert that the timing of the letter corresponded with Mr. Brenner’s financial troubles which made the letter pretextual. (PSS ¶ 35.)

The Letter to Mr. Javahery included a description of the parties’ dispute and a demand, which provided in pertinent part:

In light of the above, we hereby demand the following:

The Letter also indicated that a lawsuit would be filed if Mr. Javahery did not comply with the demands by a date certain. (Kitson Decl., Exh. 8.)

  1. Damages

According to Cross-Defendants, there is no evidence that Mr. Brenner’s registration of any of the Mika Jaymes Domain Names has affected Mika Jaymes Inc. in any way. (DSS ¶ 32; Kitson Decl., Exh. 7 (MJI PMK Deposition), 175:5-178:8.) Cross-Defendants also assert that both Charlotte Javahery and Mehrad Javahery has not lost money or property as a result of Mr. Brenner’s registration of the Domain Names. (DSS ¶¶ 33-34; Kitson Decl., Exh. 1 (Mehrad Javahery Responses to Form Interrogatories, Set One, no. 8.1, 9.2, 10.3.)

It is undisputed that Charlotte Javahery has no emotional distress damage as a result of Mr. Brenner’s registration of any Domain Names. (DSS ¶ 36; Kitson Decl., Exh. 3 (Mehrad Javahery Supplemental Responses to Special Interrogatories, Set One), no. 2, 9, 11.)

According to Cross-Complainants, Mr. Javahery has suffered severe emotional distress as a result of Mr. Brenner’s actions. (PSS ¶ 31; Kitson Decl., Exh. 2 (Mehrad Javahery Responses to Special Interrogatories, Set One), no. 10.) Additionally, Cross-Complainants assert that because they had to file suit in connection with Mr. Brenner’s actions, this caused Cross-Complainants to incur fees and costs. (PSS ¶¶ 33-34.)

  1. Analysis

  1. First Cause of Action: Cyberpiracy

15 U.S.C. ; 8131 provides in pertinent part:

[a]ny person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.

(15 U.S.C. ; 8131(1)(A).) “A person is liable under ACPA if he (1) registers a domain name; (2) that consists of the name of another living person (or one that is substantially and confusingly similar); (3) without that person's consent; (4) with the intent to profit from selling that domain name to the person or a third party. (Schmidheiny v. Weber (E.D. Pa. 2003) 285 F.Supp.2d 613, 627.)

Cross-Defendants assert that summary adjudication on the first cause of action is warranted because there is no evidence that Cross-Defendants acquired the Domain Names with intent to profit from them. (Motion, 10-11.)

In opposition, Cross-Complainant alleges that a triable issue exists with regard to the first cause of action because intent is a question of fact for the jury there is ample circumstantial evidence from which the jury may infer that Cross-Defendants intended to profit from registering the Domain Names. (Opposition, 4-5.) For example, Cross-Complainants assert that a triable issue exists with regard to whether Mr. Brenner was “trying to gain leverage against the Cross-Plaintiffs” by registering the Domain Names both before and after this action was filed. (Id.) Cross-Complainants cite to Zinner v. Olenych, (E.D.Va.2015) 108 F.Supp.3d 369 (Zinner) for the argument that summary judgment on the intent element of a cyberpiracy cause of action is inappropriate.

In Zinner, Plaintiff brought a Lanham Act action against Defendants based on their use of the domain name edzinner.com. (Id. at 374.) Defendants purchased edzinner.com from HostPapa, a hosting service, without consent. (Id. at 375.) edzinner.com was removed from the use after several weeks. (Id. at 376.) Defendants moved for summary judgment, arguing they are entitled to summary judgment because Plaintiff cannot demonstrate that Defendants possessed the specific intent to profit from registering edzinner.com. (Id. at 377.) The court found that Plaintiff had presented sufficient evidence to raise a triable issue as to intent, as Plaintiff presented evidence demonstrating that he intended to sell the edzinner.com domain name. (Id.at 393.)

In reply, Cross-Defendants asserts that Cross-Complainants’ opposition fails because Cross-Complainants’ separate statement in support of opposition fails to raise any material facts sufficient to demonstrate the existence of a triable issue. (Reply, 5-6.) Additionally, Cross-Defendants contend that Cross-Complainants’ reliance on Zinner is misplaced, as courts routinely grant summary judgment motions on this cause of action and concerning the intent element. (Reply, 9-10.)

Viewing the evidence submitted in the light most favorable to Cross-Complainants, the court finds that there are no triable issues with regard to the first cause of action. 15 U.S.C. section 8131 states on its face that an action for cyberpiracy requires a showing that the person who registered a domain name had specific intent to profit from the domain name. According to Cross-Defendants, they did not intend to profit from registering the Domain Names. Cross-Complainants dispute Cross-Defendants’ assertions regarding intent on the grounds that a jury could infer intent from circumstantial evidence, such as the timing of when the complaint was filed in this action. Cross-Complainants also assert that Cross-Defendants’ declaration is objectionable and should be disregarded as self-serving.

The court finds that Cross-Complainants’ evidence in opposition fails to raise a triable issue because it fails to dispute Mr. Brenner and Mika Jaymes’ statements that they did not intend to profit from registering the Domain Names. Cross-Complainants’ evidence is insufficient compared to the showing made by Plaintiff in Zinner, who pointed to affirmative statements that domain name at issue was intended to be sold.

For these reasons, Cross-Defendants’ motion is granted as to the first cause of action.

  1. Second Cause of Action: Cybersquatting

A person may be liable for cybersquatting in a civil action “by the owner of the mark” under 15 U.S.C. section 1125 if that person:

  1. Has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and

  2. Registers, traffics in, or uses a domain name that –

  1. In the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;

  2. In the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or

  3. Is a trademark, word, or name protected by reason of section 706 of tile 18 or section 220506 of title 36.

(15 U.S.C. ; 1125, subd. (d)(1); see also SPT Int'l, Inc. v. Nahum, (9th Circ. 2010), 624 F.3d 1213, 1218–19.) The harm that this statute was designed to address is “the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark.” (Lucas Nursery & Landscaping, Inc. v. Grosse, (6th Cir. 2004), 359 F.3d 806, 810.)

Cross-Defendants contend that summary adjudication on the second cause of action is warranted because there is no evidence that Mr. Brenner had a “bad faith intent to profit” when registering the Domain Names. (Motion, 12-14.) Cross-Defendants additionally assert that this cause of action fails because Cross-Complainants cannot demonstrate that they have a “valid mark” that is “distinctive or famous.” (Id.)

In opposition, Cross-Complainants contend that triable issues exist with regard to the second cause of action because the jury must be allowed to “weigh cross-Defendants’ credibility on this issue.” (Opposition, 5-6.) Specifically, Cross-Complainants assert that whether Cross-Defendants engaged in bad faith conduct is a question of fact. (Id.) For example, Cross-Complainants assert that the following would constitute open issues: (1) whether setting up the domain names to renew constituted evidence of bad faith, (2) whether Mr. Brenner reasonably believed that he acted in accordance with the law. (Id.)

In reply, Cross-Defendants assert that the second cause of action fails because Cross-Complainants did not provide any evidence that Mr. Brenner or Mika Jaymes actually engaged in diverting customers away from MJI. (Reply, 11-13.) Cross-Defendants also assert that Cross-Complainants have failed to demonstrate how their names qualify as distinctive marks under this section.

To protect a personal name, “the name needs to have reached a level of recognition such that the consuming public would associate the name with a particular source.” Paul Frank Industries v. Sunrich, (C.D. Cal. 2007), 502 F.Supp.2d 1094, 1098

Viewing the evidence submitted in the light most favorable to Cross-Complainants, the court finds that there are no triable issues with regard to the second cause of action. Specifically, the court agrees with Cross-Defendant that Cross-Complainants have not submitted evidence demonstrating that Mr. Brenner had a “bad faith intent to profit” when registering the Domain Names. Cross-Complainants have also not submitted evidence demonstrating that either he or his daughter’s names constitute a distinctive mark for purposes of this claim.

For these reasons, Cross-Defendants’ motion is granted as to this cause of action.

  1. Third Cause of Action: Violation of Business and Professions Code section 17525

Business and Professions Code section 17525 provides as follows:

(a) It is unlawful for a person, with a bad faith intent to register, traffic in, or use a domain name, that is identical or confusingly similar to the personal name of another living person or deceased personality, without regard to the goods or services of the parties.

(b) This section shall not apply if the name registered as a domain name is connected to a work of authorship, including, but not limited to, fictional or nonfictional entertainment, and dramatic, literary, audiovisual, or musical works.

(c) A domain name registrar, a domain name registry, or any other domain name registration authority that takes any action described in subdivision (a) that affects a domain name shall not be liable to any person for that action, regardless of whether the domain name is finally determined to infringe or dilute a trademark or service mark.

(Bus. & Prof. Code ; 17525.)

First, Cross-Defendants assert that the third cause of action fails because it is unconstitutional. (Motion, 14-15.) According to Cross-Defendants, Business and Professions Code section 17525 is unconstitutional because this section creates a “species of “thought crime”” which is prohibited under the Penal Code. (Id.) Cross-Defendants assert that this section creates a “thought crime” because Business and Professions Code section 17525 imposes liability even without bad faith intent to profit. (Id.)

Second, Cross-Defendants assert that the third cause of action is preempted because “there was no need for California to wholly duplicate the statutory scheme” set out in 15 U.S.C sections 8131 and 1125. (Motion, 15-16.)

“In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, [citation omitted[ or if federal law so thoroughly occupies a legislative field “ ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” [citation omitted] (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516.) “‘[C]ourts are reluctant to infer preemption, and it is the burden of the party claiming that Congress intended to preempt state law to prove it.’ ” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815.]

In opposition, Cross-Complainants contend that this cause of action is neither unconstitutional nor preempted by federal law. (Opposition, 8.) According to Cross-Complainants, Business and Professions Code section 17525 is not unconstitutional because “states are allowed to enact these laws to protect their citizens.” (Id.) Further, Cross-Complainants assert that this cause of action is not a “thought crime” as it is civil and requires an affirmative act by Cross-Defendants. (Id.)

The court declines to find that Business and Professions Code section 17525 is unconstitutional, or that it is preempted. The court does not find that this section is unconstitutional because the court is not persuaded by Cross-Defendants’ argument that this section imposes a “thought crime.” Simply removing language requiring specific intent does not make a claim under this section a “thought crime” or otherwise unconstitutional. Further, the court does not find that federal law preempts this section because Cross-Defendants have failed to demonstrate why preemption should apply. While Business and Professions Code section 17525 may be similar to federal cyberpiracy statutes, Cross-Defendants have failed to show how Congress “left no room” for states to supplement these statutes.

Because Cross-Defendants do not move for summary adjudication on the third cause of action on any other grounds, Cross-Defendants’ motion is denied as to this cause of action.

  1. Fourth Cause of Action: Violation of Business and Professions Code section 17200

Business and Professions Code section 17200 (“UCL”) prohibits “unfair competition,” which is defined to include “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or misleading advertising” and any act prohibited by business and professions code section 17500. The UCL prohibits: (1) unlawful conduct; (2) unfair business acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading advertising; and (5) any act prohibited under sections 17500-77.5. UCL actions based on “unlawful” conduct may be based on violations of other statutes. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

Cross-Defendants’ contend that fourth cause of action for violation of the UCL fails because there is no evidence that Cross-Complainants have suffered injury in fact or lost money or property as a result of Cross-Defendants’ conduct. (Motion, 22-24.) Cross-Defendants also contend that the fourth cause of action fails because there is no evidence that Mr. Brenner’s registration of the Domain Names constitutes a business practice, and because the first three causes of action fail. (Id.)

In opposition, Cross-Complainants contend that triable issues exist with regard to the UCL cause of action because triable issues exist with regard to the first three causes of action. (Opposition, 9.) Cross-Complainants additionally assert that triable issues exist because Cross-Defendants filed a trademark cancellation action four years after the events at issue and because Cross-Defendants “continue to hold hostage the various domains that do not contain Ms. Brenner’s alleged nickname.” (Id.)

It is undisputed that Charlotte Javahery does not claim emotional distress damages in connection with this action.

Although Cross-Complainant Mehrad Javahery asserts that he did suffer emotional distress damages, Mr. Javahery’s cited evidence, consisting of his responses to Special Interrogatories and his testimony as MJI’s PMK, does not support this assertion. As discussed above, Mr. Javahery testifies that he has no evidence that Mr. Brenner’s registration of the Domain Names caused damages to MJI’s business but that nevertheless Mr. Brenner’s actions were a “problem” even though he is not certain. Mr. Javahery’s discovery responses describe the factual basis for his claims without demonstrating that he suffered emotional distress. Additionally, as discussed above, Cross-Complainants assert that a triable issue exists with regard to the Mr. Brenner’s intent in registering the Domain Names but do not cite to admissible evidence contradicting Mr. Brenner’s statements about his intent.

Viewing the evidence submitted in the light most favorable to Cross-Complainants, the court finds that no triable issues exist with regard to the fourth cause of action. For these reasons, Cross-Defendants’ motion is granted as to the fourth cause of action.

  1. Fifth Cause of Action: Intentional Infliction of Emotional Distress

Cross-Complainants’ fifth cause of action is brought by Mehrad Javahery only. Specifically, Mr. Javahery alleges that he has suffered “great emotional distress in that his daughter cannot now have a URL of her name.” (Cross-Complaint, ¶¶ 41, 44.) According to the Cross-Complaint, Defendants are “cyber bullying Mr. Javahery by attacking his young daughter.” (Cross-Complaint ¶ 43.)

The elements of a claim for intentional infliction of emotional distress (“IIED”) are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (Christensen).) Under California law, for conduct to be “outrageous” it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Props., Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Cross-Defendants contend that the fifth cause of action fails because Mr. Javahery cannot establish that Cross-Complainants engaged in outrageous conduct or that he suffered severe emotional distress. (Motion, 24-27.) According to Cross-Defendants, registration of domain names does not constitute outrageous conduct for purposes of an IIED claim. (Id.) Further, Cross-Defendants assert that because the Letter was a prelitigation demand, it is protected under Civil Code section 47’s litigation privilege. (Id.)

Under Civ. Code ; 47 any publication or broadcast made in any judicial proceeding is absolutely privileged. This “litigation privilege” applies not only to statements made in the courtroom but also to prelitigation communications made in preparation for anticipated litigation. (Kerner v. Superior Court, (2012) 206 Cal.App.4th 84, 120-21.)

In opposition, Cross-Complainants contends that triable issues exist with regard to the fifth cause of action because Mr. Brenner committed “quintessential acts constituting intentional infliction of emotional distress” by targeting Mr. Javahery to “make a point.” (Opposition, 9-10.) According to Cross-Complainants, this admission alone is sufficient to raise a triable issue because it demonstrates that Mr. Brenner caused severe emotional distress and was aware of doing so. (Id.)

In reply, Cross-Defendants assert that the fifth cause of action fails because the only non-privileged actions in support of this cause of action are Mr. Brenner’s registration of the Domain Names, without more. (Reply, 18-20.)

It is undisputed that the Letter sent to Mr. Javahery on January 10, 2018 was a pre-litigation demand letter. Thus, the court agrees with Cross-Defendants that to the extent Mr. Javahery’s fifth cause of action is based on the Letter, the fifth cause of action fails because this letter is covered by the litigation privilege.

Viewing the evidence submitted in the light most favorable to Cross-Complainants, the court finds that no triable issues exist with regard to the fifth cause of action. According to Cross-Defendants, Mr. Brenner’s actions in registering Domain Names are insufficient to constitute outrageous conduct for purposes of an IIED cause of action. Cross-Complainants contend that Mr. Brenner’s actions are sufficiently outrageous because Mr. Brenner testified that he registered certain Domain Names to “prove a point.” However, such testimony is insufficient to raise a triable issue as to whether Mr. Brenner’s actions are so outrageous as to “exceed all bounds of that usually tolerated in a civilized community.”

For these reasons, Cross-Defendants’ motion is granted as to the fifth cause of action.

Conclusion

Cross-Defendants’ motion is granted as to the first, second, fourth and fifth causes of action and otherwise denied. Cross-Defendants are to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not making any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

"


b'

Case Number: ****0971 Hearing Date: October 28, 2021 Dept: 37

HEARING DATE: October 28, 2021

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTIES: Plaintiff and Cross-Defendant Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

OPPOSING PARTY: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Plaintiff and Cross-Defendant’s Motion to Seal Exhibit 9 in Support of Motion for Summary Judgment

OPPOSITION: None as of October 25, 2021

REPLY: Notice re Documents Filed Conditionally Under Seal, October 21, 2021

TENTATIVE: Plaintiff’s motion is denied. Plaintiff to give notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”) (“Plaintiff”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages.

In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On October 12, 2018, MJI and Javahery, individually and on behalf of his minor child Charlotte Javahery filed a Cross-Complaint against Plaintiff. The Cross-Complaint alleges the following causes of action: (1) violation of 15 U.S.C. ; 8131, (2) violation of 15 U.S.C. ; 1125, (3) violation of Business & Professions Code ; 17525, (4) violation of Business and Professions Code ; 17200, (5) intentional infliction of emotional distress.

On July 10, 2020, Defendants’ motion for summary judgment, or, in the alternative, summary adjudication was denied.

On September 22, 2021, Plaintiff filed her Motion for Summary Judgment (“MSJ”) as to the Cross-Complaint.

On October 13, 2021, Defendant’s second motion for summary judgment or, in the alternative, summary adjudication was granted as to the request for punitive damages and otherwise denied.

Plaintiff now moves to seal Exhibit 9 in Support of her MSJ. The motion is unopposed.

Discussion

  1. Legal Authority

Unless confidentiality is required by law, court records are presumed to be open to public review. (Cal. Rules of Court, rule 2.550(c).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218 (NBC).)

A “court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1578 (Nicholas) (quoting Cal. Rules of Court, rule 2.551(a)), internal quotations omitted.)

  1. Analysis

Plaintiff contends that Exhibit 9 to the MSJ must be filed under seal because it compromises of documents received by subpoena from GoDaddy.com, LLC relating to the registration of “certain domain names” by Evan Brenner, Javahery and/or MJI. (Motion, 2.) According to Plaintiff, GoDaddy.com LLC’s subpoena policy includes the following:

Second, CONFIDENTIAL documents must not be filed in the public record absent a reasonable attempt to ensure the filing of such documents, and any references thereto, under seal. A party that seeks to file any motion, brief, or other document that attaches or refers to any CONFIDENTIAL document or portion thereof must take the steps necessary to request a court order sealing the CONFIDENTIAL information at issue. If the court denies a motion to seal made pursuant to this Subpoena Policy, the party may file the document(s) at issue normally, unless otherwise instructed by the court.

(Declaration of Robert M. Kitson, (“Kitson Decl.”), ¶ 5.) Thus, Plaintiff represents that she is filing the records conditionally under seal “out of caution,” even though she “sees nothing particularly confidential about the records,” because GoDaddy.com LLC’s subpoena policy requires that parties do so and because the records produced are designated “confidential.” (Motion, 2-3.) According to Plaintiff, the records pertain to the issue of “the identity of various domain name registrations,” “the identify of the registrant,” and the “date of the registration.” (Id.)

Plaintiff’s motion is unopposed. On October 21, 2021, Plaintiff filed a “Notice re: Documents Filed Conditionally Under Seal.” (the “Notice”) According to the Notice, Plaintiff gave notice to GoDaddy.com, LLC on September 22, 2021 that Exhibit 9 had been lodged conditionally under seal. (Notice, 1-2.) According to the Notice, GoDaddy.com LLC has not filed any documents relating to this motion or contacted Plaintiff’s counsel about Exhibit 9. (Id.) As such, Plaintiff represents that she will take the position that she “has complied with GoDaddy.com’s subpoena policy, and, absent an assertion of confidentiality by the subpoenaed party, Exhibit 9 does not require sealing.” (Id.)

The court finds that good cause does not exist to seal Exhibit 9. Plaintiff represents that she does not believe that Exhibit 9 requires sealing. Plaintiff also did not demonstrate how Exhibit 9 meets any of the requirements of NBC.

For these reasons, Plaintiff’s motion is denied.

Conclusion

Plaintiff’s motion is denied. Plaintiff to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not making any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

'


b"

Case Number: ****0971 Hearing Date: October 13, 2021 Dept: 37

HEARING DATE: October 13, 2021

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion for Summary Judgment

OPPOSITION: September 29, 2021

REPLY: October 8, 2021

TENTATIVE: Defendants’ motion is granted as to the fourth issue and otherwise denied. Defendants are to give notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages.

In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On July 10, 2020, Defendants’ motion for summary judgment, or, in the alternative, summary adjudication was denied.

On July 28, 2021, Defendants filed a second motion for summary judgment or, in the alternative, summary adjudication, on the following issues:

  1. Plaintiff’s Complaint, Based Solely on State Law, Has No Merit Because it is Preempted by Federal Law (the Lanham Act)

  2. The First Cause of action for Right of Publicity Under Civil Code Section 3344 Has No Merit Because Plaintiff Has Not and Cannot Establish Essential Elements

  3. The Second Cause of Action for Common Law Right of Publicity Has No Merit Because Plaintiff Has Not and Cannot Establish Essential Elements

  4. The Claim for Punitive Damages Fails as A Matter of Law Because There Are No Facts Demonstrating That Defendants Are Guilty of Oppression, Fraud Or Malice.

Plaintiff opposes the motion.

Request for Judicial Notice

Defendants request judicial notice of the following in support of their motion:

  1. Portions of the United States Patent and Tradermark Office’s (“USPTO”) publicly available file (accessed through the USPTO website) for the mika jaymes® mark, U.S. Serial No. 87185101, U.S. Registration No. 5195520. (Exhibit 3-B to Motion);

  2. That the USPTO registered the mika jaymes® mark on the Principal Register.

  3. That Mika Jaymes, Inc. is the owner of record for the mika jaymes® mark.

    Plaintiff requests judicial notice of the following in support of her opposition:

  1. According to the Office of the California Secretary of State, Mika Jaymes, Inc. was incorporated on January 24, 2006

  2. On September 29, 2021, Evan Brenner filed, on behalf of his minor child Mika Jaymes Brenner, a Petition for Cancellation of the mika jaymes® trademark

  3. As of September 29, 2021, the mikajaymes.com website continues to exist and offer products for sale.

    Defendants’ requests are granted. Plaintiff’s requests are granted except as to item 3, which is denied. Plaintiff does not demonstrate that item 3 is a proper matter for judicial notice. As to the remaining items in the parties’ requests, the existence and legal significance of these items are proper matters for judicial notice. (Evidence Code ; 452, subds. (c), (d), (h).)

    Evidentiary Objections

    Objections to Declaration of Evan Brenner

    Sustained: 1, 3-5, 9-10, 12-15

    Overruled: 2, 6-8, 11

    Objections to Declaration of Ravit Brenner

    Overruled: 18

    Sustained: 16-17, 19, 21-22

    Sustained in Part: 20

    Objections to Declaration of Mika Brenner

    Objection 23: Sustained as to the first sentence.

    Objection 24: sustained as to the last clause of the sentence.

    Objections to Exhibit 1 to Opposition

    Sustained:

    Overruled: 25-28

    Objections to Exhibit 16 to Opposition

    Objection 29: sustained.

    Objections to Exhibit 17 to Opposition

    Objection 30: sustained.

    Objections to Exhibit 20 to Opposition

    Objection 31: overruled.

    Objections to Exhibit 21 to Opposition

    Objection 32: overruled.

    Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinesley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Factual Summary

It is undisputed that Plaintiff’s Complaint contains only state law causes of action. (Separate Statement in Support of Motion, (“DSS”) ¶ 1.)

mika jaymes® is a trademark registered by the United States Patent and Trademark Office. (“USPTO”) (DSS ¶ 2; Declaration of Mehrad Javahery, ¶¶ 8, 10; Declaration of Raymond Muro (“Muro Decl.”), ¶ 3.) Mika Jaymes, Inc. is the owner of record of the mika jaymes® mark. (DSS ¶ 4; Mehrad Javahery Decl. ¶¶ 8, 10; Muro Decl. ¶ 3.)

Usage of “mika jaymes” Trademark

  1. Defendants’ Position

According to Defendants, Mika Brenner has never used the name “mika jaymes” in commerce or in the clothing industry. (DSS ¶¶ 7-8; Muro Decl. ¶ 7; Exhibits in Support of Motion, Exh. 3-F (Plaintiff’s Supplemental Response to Form Interrogatory No. 8.7).) Specifically, Plaintiff’s response stated “Plaintiff has not attempted to capitalize or monetize her unique name, in part due to Defendant’s actions in using it.” (Id.) Further, Defendants contend that Mika Brenner is not a celebrity or otherwise known to the public as “Mika Jaymes.” (DSS ¶ 7; Muro Decl. ¶¶ 2, 7, 10; Exhibit 3-I (Rimokh Deposition), 19:4-6, 25:16-28:11, 28:25-29:20.)

Defendants also contend that they have only used the words “mika” and “jaymes” on their products and have never used the word “Brenner.” (DSS ¶¶ 9-10; Declaration of Mehrad Javahery, ¶¶ 2-13; Muro Decl. ¶ 3; Exhibits in Support of Motion, Exh. 1-B, 1-C.)

  1. Plaintiff’s Position

Plaintiff disputes that Mika Brenner has never used the name “mika jaymes” in commerce and additionally disputes that that Mika Brenner is not publicly known as “mika jaymes.” (Separate Statement in Support of Opposition (“PSS”), ¶¶ 5, 7.) According to Plaintiff, Mika Brenner has used the name “mika jaymes” on social media, and that Defendants are aware of the “commercial aspect of social media handles.” (Id.; Declaration of Ravit Brenner, ¶ 11; Mika Brenner, ¶ 9.) Further, and according to Plaintiff, Jason Rimokh recognized associated the name “mika jaymes” with Mika Brenner. (PSS ¶ 7.)

Plaintiff does not dispute that Mika Brenner has not used the name “mika jaymes” in the fashion industry. Additionally, Plaintiff does not dispute that “Brenner” does not appear on Defendants’ products, but disputes that the only words used on the products are “mika” or “jaymes.” (PSS ¶ 9.) According to Plaintiff, the advertisements for Defendants’ products include other terms associated with Mika Brenner, such as “Born in L.A.” and “the mika jaymes story.” (Id.; Kitson Decl., Exh. 3 (PMK Deposition), 138:10-12, 140:6-10; Kitson Decl., Exhs. 14-15.)

Discovery Responses

It is undisputed that Plaintiff claims loss of income or earning capacity in connection with this lawsuit. (DSS ¶ 9.)

Additionally, it is undisputed that Plaintiff responded to Defendants’ form interrogatories as follows:

No. 8.7: “[s]tate the total income you have lost to date… and how the amount was calculated.”

Plaintiff responded “Unknown. Plaintiff has not attempted to capitalize or monetize her unique name, in part due to Defendant’s actions in using it.”

No. 8.8 this interrogatory asked Plaintiff for an estimate of the amount of future loss of income.

Plaintiff responded: “TBD”

No. 9.1: this interrogatory asked Plaintiff to provide the amount of any other damages claimed.

Plaintiff responded: “To be determined by the trier of fact. Discovery is ongoing and expert discovery has not yet begun.”

No. 21: “Please IDENTIFY all DOCUMENTS that YOU contend support YOUR allegation that MIKA JAYMES, INC.'s use of the ‘Mika Jaymes’ name has caused Mika Brenner to suffer commercial damage to her image and persona.”

Plaintiff responded by identifying “search results from the search engines and websites,” and the financial documents of Mika Jaymes, Inc.

(DSS ¶¶ 13-16.)

Mika Jaymes, Inc. and Use of “Mika Jaymes”

  1. Defendants’ Position

Mehrad (“Roddy”) Javahery is the designer and founder of the Mika Jaymes, Inc. clothing company and the mika jaymes® clothing brand, which eh founded in 2005. (DSS ¶ 18; Declaration of Mehrad Javahery, ¶¶ 2-5; Declaration of Jacki Javahery ¶¶ 2-4.) Mr. Javahery came up with the mika jaymes® name for his new men’s’ clothing line in mid-2005. (DSS ¶ 19.)

According to Defendants, Mr. Javahery chose “MIKA” to honor his grandparents by taking the first letters from each of their names. (DSS ¶ 20; Declaration of Mehrad Javahery, ¶ 3.) Mr. Javahery chose “Jaymes” as an homage to the fictional character James Bond but added a “Y” to differentiate the brand from “James Perse.” (DSS ¶ 21; Javahery Decl. ¶ 4.) Mr. Javahery was manufacturing and operating the Mika Jaymes clothing lines through his company, Volume Inc, by August 2005. (DSS ¶ 22; Declaration of Mehrad Javahery ¶ 5; Declaration of Jacki Javahery ¶¶ 2-4.)

Around August 2005, Mr. Javahery decided to test the market and asked his now wife, Jacki Javahery, to showcase the Mika Jaymes line in her showroom to test the market in August or September 2005. (DSS ¶¶ 23-25; Declaration of Mehran Javahery ¶ 5; Declaration of Jacki Javahery ¶¶ 2-4.) Thereafter, Jacki Javahery told Ravit Sahar (Mika Brenner’s mother), that Mr. Javahery was starting a clothing line called “Mika Jaymes.” (DSS ¶ 26; Declaration of Mehrad Javahery ¶ 5; Declaration of Jacki Javahery ¶¶ 2-4.) Defendants allegedly did not know that Mika Brenner’s middle name was “Jaymes” until the present lawsuit was filed. (DSS ¶ 27; Declaration of Mehrad Javahery ¶ 11; Declaration of Jacki Javahery ¶ 6.)

Both parties rely on the testimony of Evan Brenner’s friend, Jason Rimokh, in support of their position. Mr. Rimokh testified as follows regarding his knowledge of the use of “mika jaymes.”

Q: Have you heard – and I understand this is a fairly broad time frame, but I’m just asking you for your recollection of things, have you ever heard of people calling her Mika Jaymes instead of Mika or Mika Mouse?

A: I think just her parents.

Q: Do you know what her siblings call her?

A: I don’t know more than Mika.

(Exhibits in Support of Motion, Exh. 3-I, 29:13-20.)

  1. Plaintiff’s Position

Plaintiff does not dispute that Mr. Javahery is the founder of Mika Jaymes, Inc. (PSS ¶¶ 18-19.) However, Plaintiff contends that there was “substantial evidence” to support a determination that Mika Jaymes, Inc. was founded in January 2006. (Id.; Declaration of Evan Brenner ¶¶ 7-12; Kitson Decl., Exh. 1 (Evan Brenner Depo), 33:10-34:5; 35:3-7; 36:2-38:18; 39:9- 40:21; 41:2-11; 42:5-43:23; Declaration of Ravit Brenner ¶¶ 7-10; Kitson Decl. Exh. 2 (Ravit Brenner Deposition), 75:13-24; 76:18-78:2; 80:10- 81:3; 83:5-83:24; 123:8-126-21; Kitson Decl., Exh. 19 (USPTO Application).)

Specifically, Evan Brenner attests that he told after Mika Brenner was born, Mr. Javahery and his family were told of her name and “they fawned over it.” (Evan Brenner Decl. ¶¶ 8-9.) Additionally, Evan Brenner attests that he discussed the name “Mika Jaymes Brenner” during a conversation with Mr. Javahery in “2011 or 2012,” at which time Mr. Javahery did not mention that he had a “corporation or clothing line with the same name.” (Evan Brenner Decl. ¶ 10.) Further, according to Ravit Brenner, Jacki Javahery visited her in the hospital or shortly after Mika Brenner’s birth and learned about the name “Mika Jaymes Brenner” at that time. (Ravit Brenner Decl. ¶ 7.)

Additionally, Plaintiff contends that there was substantial evidence to support a determination that Mr. Javahery “usurped” the name “Mika Jaymes” for a clothing company that he founded in January 2006 and after he learned that Evan and Ravit Brenner had given Mika Brenner that name. (PSS ¶¶ 18-19; Declaration of Evan Brenner ¶¶ 7-12; Kitson Decl., Exh. 1 (Evan Brenner Depo), 33:10-34:5; 35:3-7; 36:2-38:18; 39:9- 40:21; 41:2-11; 42:5-43:23; Declaration of Ravit Brenner ¶¶ 7-10; Kitson Decl. Exh. 2 (Ravit Brenner Deposition), 75:13-24; 76:18-78:2; 80:10- 81:3; 83:5-83:24; 123:8-126-21.)

Further, Plaintiff asserts that Mr. Javahery testimony fails to demonstrate that Jacki Javahaery ever had a show in her showroom to test the market for “mika jaymes” products. (PSS ¶ 25; Kitson Decl., Exh. 3 (PMK Depo), 77:17-78:7, 80:6-11.) Specifically, Mr. Javahery testified as follows with regard to Jacki Javahery’s showroom show for the mika jaymes products:

Q: Do you recall any person, other than Jacki, saying anything to you at all about the Mika Jaymes line from that showroom show?

A: I would – it wasn’t a show. I don’t – you’re saying a showroom show. I –I don’t – I’m not saying that.

(Kitson Decl., Exh. 3, 80:6-11.)

Plaintiff also asserts that Mika Brenner has suffered emotional distress as a result of Defendants’ actions. (Separate Statement of Additional Facts in Support of Opposition (“PSF”), ¶ 37; Kitson Decl., Exh. 1 (Evan Brenner Depo), 87:18-90:15, Exh. 2 (Ravit Brenner Depo), 147:2-151:6; Mika Brenner Decl. ¶¶ 10-15.)

Mika Brenner attests in support of Plaintiff’s opposition that she has “been hurt and embarrassed by Mr. Javahery’s actions.” (Mika Brenner Decl. ¶ 15.) Further, Mike Brenner attests that “I have stopped being as creative in the areas of art and design, particularly my past pursuits with clothing, because I feel I would be doing something wrong under my own name.” (Id.)

  1. Analysis

  1. Lanham Act

Defendants contend that Plaintiff’s entire Complaint, which asserts only state law claims, is preempted by the Lanham Act. (Motion, 6-11.) According to Defendants, the “ability to trademark a name” under the Lanham Act is “necessarily in conflict with Plaintiff’s claims” because any judgment would diminish Defendants’ trademark rights. (Motion, 10.) Defendants further assert that under the Lanham Act, Defendants have an “exclusive right” to use the mika jaymes trademark and thus, Plaintiff’s claims seek to nullify this right. (Motion, 10-11.)

Pursuant to 15 United States Code section 1057, subdivision (b), “[a] certificate of registration of a mark upon the principal register provided by this chapter shall be prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated in the certificate.”

“[A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively.” (Freightliner Corp v. Myrick (1995) 514 U.S. 280, 287.) “[I]mplied conflict pre-emption [exists] where it is “impossible for a private party to comply with both state and federal requirements,” [citation omitted] or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Id.)

In opposition, Plaintiff contends that the Lanham Act does not preempt her claims, as Plaintiff seeks damages for misappropriation of her right of publicity and Defendants have failed to demonstrate that every part of Plaintiff’s claims is preempted by the Lanham Act. (Opposition, 8.) Additionally, Plaintiff cites to Duggan’s Funeral Service, Inc. v. Duggan’s Serra Mortuary, Inc., (2000) 80 Cal.App.4th 151, 158 (Duggan) for the argument that state and federal courts have concurrent jurisdiction for certain Lanham Act claims.

In Duggan, two funeral homes engaged in a trademark infringement and unfair competition dispute. (Id. at 153.) The trial court granted motion for summary judgment cancelling the trademark at issue because of fraud. (Id. at 156-157.) The Court of Appeal found that cancellation of the trademark was proper . (Id. at 157-159.) Specifically, the Court of Appeal held that federal district courts have exclusive jurisdiction over Lanham Act cases “only with respect to patent, plant variety protection and copyright claims.” (Id. at 157.) Otherwise, “in cases arising under the Lanham Act, the jurisdiction of federal and state courts is concurrent.” (Id.) Additionally, “[i]ndeed, state courts can pass upon the validity of federal trademark registration.” (Id. at 158.)

In reply, Defendants contend that no triable issues exist as to this issue because trademark rights under the Lanham Act are not tied to USPTO registration but instead arise for the party who first uses the trademark in commerce. (Reply, 1-2.) Additionally, Defendants contend that Plaintiffs’ reliance on Duggan is misplaced because Plaintiffs have not pled a claim for trademark cancellation and thus, has not invoked state court jurisdiction over her claims. (Reply, 2-3.) Defendants also contend that Plaintiff cannot prevail on a cancellation claim as a matter of law because Plaintiff has not used her name in commerce and Plaintiff has cited no authority for the argument that use of a person’s name alone constitutes misappropriation. (Reply, 3-9.)

The court agrees with Plaintiff that the Lanham Act does not preempt Plaintiff’s claims. Specifically, the cited portions of the United States Code only demonstrate that Defendants, as the registered owners of the mika jaymes trademark, have an exclusive right to use the trademark pursuant to the registration. However, Plaintiff’s claim does not fall into one of the types of Lanham Act cases for which federal district courts have exclusive jurisdiction. The court also rejects Defendants’ argument as to Duggan. The cited portion of Duggan regarding federal court jurisdiction over Lanham Act claims did not depend on whether Plaintiff alleged a claim for trademark cancellation. Instead, the Duggan court simply stated that other than as to certain claims, federal courts do not have exclusive jurisdiction over Lanham Act cases. Defendants’ other cited authority also does not support the argument that federal courts have exclusive jurisdiction over trademark cases. Additionally, Plaintiff’s action does not challenge the validity of the mika jaymes trademark, but rather argues that Defendants’ use of the trademark constitutes invasion of her right to publicity.

For these reasons, Defendants’ motion is denied as to the first issue.

  1. First Cause of Action: Right of Publicity (Civil Code ;3344)

“California law has long recognized ‘the right to profit from the commercial value of one's identity as an aspect of the right of publicity.’ ” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 (Orthopedic Systems).) There are two vehicles a plaintiff can use to protect this right: a common law cause of action for commercial misappropriation and a claim under Civil Code, section 3344. (Ibid.) The right of publicity distinctly protects an “economic interest” and is personal in nature, such that the owner of the right has the exclusive authority to assign it during his or her lifetime. (Timed Out, LLC v. Youabian (2014) 229 Cal.App.4th 1001, 1010.)

Civil Code, section 3344 provides in relevant part:

(a) Any person who knowingly uses another’s name . . . in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

(Civ. Code, ; 3344, subd. (a).)

Defendants contend that Plaintiff’s first cause of action fails because Plaintiff has not alleged emotional distress and has no actual damages. (Motion, 18021.) Additionally, Defendants contend that Plaintiff have no evidence that Defendants “knowingly used” the name “mika jaymes.” (Id.)

In opposition, Plaintiff contends that a triable issue exists with regard to whether Defendants knowingly used the name “Mika Jaymes.” (Opposition, 23-24.) Plaintiff points to their declarations and testimony, discussed above, in support of this argument. Plaintiff additionally contends that the Complaint’s prayer for “actual damages” includes a prayer for emotional distress damages. (Opposition, 19-21.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that a triable issue exists with regard to whether Defendants knowingly used the name Mika Jaymes. Defendants present their own declarations and testimony in support of the argument that they did not knowingly use this name but came up with the name on their own accord and through other sources. Plaintiff presents declarations and testimony in support of their argument that Defendants could only have learned of the name “Mika Jaymes” in connection with their choice to give that name to their daughter. Thus, the parties’ differing accounts regarding the “mika jaymes” trademark, both supported by admissible evidence, constitutes a triable issue.

For these reasons, Defendants’ motion is denied as to the second issue.

  1. Second Cause of Action: Common Law Right of Publicity

“To prove the common law cause of action for right of publicity, the plaintiff must establish: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. To prove the statutory remedy, a plaintiff must present evidence of all the elements of the common law cause of action” and must also prove a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.” (Orthopedic Systems, supra, 202 Cal.App.4th at p. 544.)

Defendants contend that the second cause of action for common law right of publicity fails because Plaintiff cannot establish that Defendants’ use of “mika jaymes” constituted using Mika Brenner’s identity, or that Plaintiff suffered damages as a result of this use. (Motion, 11-17.)

In opposition, Plaintiff contends that the second cause of action does not fail because Plaintiff ahs submitted admissible evidence that she is identifiable from the use of “Mika Jaymes” and that Defendants use of “mika jaymes” constituted misappropriation of her identity. (Opposition, 16-19.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that a triable issue exists with regard to the second cause of action for the same reasons stated as to the first cause of action. Specifically, the parties have presented differing accounts of how Defendants’ clothing company came to be named “mika jaymes.” Both parties’ accounts are supported by admissible evidence. This constitutes a triable issue as to whether Defendants’ use of the mika jaymes® constitutes use of Plaintiff’s identity for purposes of a common law right of publicity claim.

For these reasons, Defendants’ motion is denied as to the third issue.

  1. Punitive Damages

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, ; 3294 subd. (a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, ; 3294 subd. (c)(1).) “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, ; 3294 subd. (c)(2).) “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, ; 3294, subd. (c)(3).) A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Defendants contend that Plaintiff’s claim for punitive damages fails because Plaintiff failed to produce any evidence that Defendants acted with oppression, fraud or malice. (Motion, 20.) In opposition, Plaintiff contends that there is substantial evidence to support a claim for punitive damages because Plaintiff was a minor when Mr. Javahery appropriated her name and refused to stop using the name even after Plaintiff demanded that he stop. (Opposition, 24-25.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court agrees with Defendant that Plaintiff has not shown that Defendants acted with oppression, fraud, or malice. Plaintiff’s opposition argues that because Defendants appropriated the name “mika jaymes” while Mika Brenner was a baby, “it is hard to imagine a more vulnerable victim,” and that Defendants’ concealment of their actions “is deceitful in the extreme.” However, these arguments do not meet the standards of Civil Code section 3294 to impose punitive damages because they do not demonstrate how Defendants acted with intent to cause injury to Plaintiff, or with conscious disregard of Plaintiff’s rights. There are no allegations to support an obligation to disclose anything to Plaintiff regarding their use of the trademarked name. Defendants have submitted admissible evidence in support of the argument that their decision to use “mika jaymes” for their clothing brand had no relationship to Plaintiff’s name.

For these reasons, Defendants’ motion is granted as to the fourth issue.

Conclusion

Defendants’ motion is granted as to the fourth issue and otherwise denied. Defendants are to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not making any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

"


b'

Case Number: ****0971 Hearing Date: September 8, 2021 Dept: 37

FROM: Law Clerk Grace Song, ext 0588

HEARING DATE: September 8, 2021

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Motion to Seal Exhibits in Support of Motion for Summary Judgment

OPPOSITION: None as of September 2, 2021

REPLY: No opposition filed.

TENTATIVE: Defendants’ motion is granted. The lodged portions of Exhibit 3-H are ordered sealed. Defendants are to give notice.

xc

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages.

In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On July 10, 2020, Defendants’ motion for summary judgment, or, in the alternative, summary adjudication was denied.

On July 28, 2021, Defendants filed a second motion for summary judgment or, in the alternative, summary adjudication.

Defendants now move for an order sealing portions of their exhibits in support of their motion for summary judgment. The motion is unopposed.

Discussion

  1. Legal Authority

Unless confidentiality is required by law, court records are presumed to be open to public review. (Cal. Rules of Court, rule 2.550(c).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218 (NBC).)

A “court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1578 (Nicholas) (quoting Cal. Rules of Court, rule 2.551(a)), internal quotations omitted.)

  1. Analysis

Defendants move for an order sealing the following documents in support of their MSJ:

Portions of Exhibit 3-H: “Financial documents produced by Defendants, Bates stamped MJI00012 through MJI-00153, which are compromised of its sales records and financial and tax documents.”

(Motion, 5.)

Defendants contend that these portions of Exhibit 3-H should be sealed because they compromise of Defendants’ sales records and financial and tax documents. (Motion, 6-7.) According to Defendants, a substantial probability exists that their rights of financial privacy will be prejudiced if these portions of Exhibit 3-H are not sealed. (Id.) Further, Defendants argue that the proposed sealing is narrowly tailored because the motion only seeks to seal a portion of one exhibits, and no less restrictive means exist to protect their overriding interests. (Motion, 7.)

Defendants’ motion is unopposed.

The court has reviewed Defendants’ motion and the lodged portions of Exhibit 3-H. Based on this review, the court finds that there exists an overriding interest in Defendants protecting their rights of financial privacy and that this interest supports sealing these documents. Additionally, a substantial probability exists that this interest will be prejudiced if these documents re not sealed, and Defendants’ request is narrowly tailored because Defendants only seek to seal a portion of Exhibit 3-H. Finally, the court finds that no less restrictive means exist to achieve this overriding interest.

For these reasons, Defendants’ motion is granted.

Conclusion

Defendants’ motion is granted. The lodged portions of Exhibit 3-H are ordered sealed. Defendants are to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not making any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

'


b"

Case Number: ****0971 Hearing Date: August 25, 2021 Dept: 37

HEARING DATE: August 25, 2021

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Motion for Leave to File Amended Answer

OPPOSITION: None as of August 19, 2021

REPLY: August 16, 2021

TENTATIVE: Defendants’ motion is granted. Defendants are to file the First Amended Answer within 10 days of this date. Defendants are to give notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages.

In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On July 10, 2020, Defendants’ motion for summary judgment was denied.

On June 4, 2021, Plaintiff filed a Notice of Association of Counsel. The notice indicates that Plaintiff associated in Jordanna G. Thigpen of Thigpen Legal, P.C. as counsel.

On June 7, 2021, the parties stipulated to continue trial to “a date no earlier than February 24, 2022” to allow Plaintiff’s new counsel to familiarize herself with this matter and to allow time for the parties to mediate.

Defendants now move for leave to file an amended answer. The motion is unopposed.

Discussion

  1. Legal Standard

California law holds that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Code Civ. Proc., ; 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 (Hirsa)) “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.

The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) The court, however, has the discretion to deny an amendment that fails to state a cause of action or defense. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.)

  1. Analysis

  1. Procedural Considerations

    A party requesting leave to amend must comply with California Rules of Court, rule 3.1324. A motion to amend a pleading before trial must state which allegations were deleted from and which allegations were added to the previous pleading and identify the changes “by page, paragraph, and line number.” (Cal. Rules of Court, rule 3.1324(a).)

    According to Defendants’ notice of motion, Defendants’ proposed First Amended Answer adds one affirmative defense for preemption. (Notice of Motion, i-ii; Declaration of Raymond J. Muro (“Muro Decl.”), ¶ 8.) This satisfies the requirements of California Rules of Court, rule 3.1324(a).

    Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324(b).)

    Defendants submit the declaration of their counsel, Raymond J. Muro (“Muro”) in support of the instant motion. Muro attests that on July 19, 2021, he took the deposition of Jason Rimokh. (“Mr. Rimokh”) (Muro Decl. ¶ 4, Exh. C.) On July 26, 2021, Muro accessed the United States Patent and Trademark Office’s (“USPTO”) online records for US Serial Number 87185101. (Muro Decl. ¶ 5, Exh. D.) Muro attests that based on his review of Mr. Rimokh’s deposition testimony and the USPTO records, it “became apparent” that Mika Brenner is known as “Mika Jaymes” to only a few people and that accordingly, Defendants have a preemption defense. (Muro Decl. ¶ 6.) Muro also submits a copy of the Proposed First Amended Answer as Exhibit E to his declaration.

    The Muro Declaration satisfies the requirements of California Rules of Court, rule 3.1324(b).

  2. Substantive Considerations ;

    Generally, motions for leave to amend will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the court and the delay in seeking leave to amend will cause prejudice to the opposing party. ; (See ;Atkinson v. Elk Corp. ;(2003) ;109 Cal.App.4th 739, 761 [“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ [Citations.] ; Furthermore, ‘it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.” [Citation.]’ ”]; ;Hirsa, ;supra, ;118 Cal.App.3d at p. 490.) ; Indeed, “courts are much more critical of proposed amendments ... when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party [citations].” ; (Permalab-Metalab ;Equipment Corp. v. Maryland ;Cas. Co. ;(1972) 25 Cal.App.3d 465, 472.) ; ; ;

    Defendants contend that leave to file a First Amended Answer must be granted because they have a meritorious preemption defense. (Motion, 4-8.) Specifically, Defendant contends they have a preemption defense under the Lanham Act because “mika jaymes” is registered on the USPTO’s Principal Register and Mr. Rimokh testified that “Mika Brenner” is not “extremely well known” or any kind of celebrity. (Motion, 6-7.) According to Defendants, they have an exclusive right under the Lanham Act to use mika jaymes in commerce to sell clothing. (Id.)

    Defendants additionally contend that granting leave to amend would be proper because Plaintiff would not suffer prejudice, given that trial is not until March 29, 2022, no depositions have been taken, and Plaintiff’s counsel has allegedly indicate that Plaintiff will not oppose the motion. (Motion, 8-10.)

    Defendants’ motion is unopposed.

    The court has reviewed Defendants’ motion and the proposed First Amended Answer. Based on this review, the court finds that the proposed First Amended Answer relates to the same general set of facts as the original Answer. Additionally, trial in this matter over six months away, and it appears from the motion that Plaintiff does not oppose the motion.

    For these reasons, Defendants’ motion is granted.

    Conclusion

    Defendants’ motion is granted. Defendants are to file the First Amended Answer within 10 days of this date. Defendants are to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not making any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

"


Case Number: ****0971    Hearing Date: August 18, 2020    Dept: 37

HEARING DATE: August 18, 2020

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

TRIAL DATE: August 24, 2021

PROOF OF SERVICE: OK

MOTIONS: Motions to Compel Further Responses to Discovery: 4 by James and 4 by Javahery

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

OPPOSITION: August 4, 2020

REPLY: August 11, 2020

TENTATIVE: The court finds Defendants MJI and Javahery’s Motions to Compel Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One are moot as to the supplemental responses. Defendants’ requests for sanctions are granted. The moving party is to give notice as to each motion.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages. In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On October 30, 2019, Plaintiff’s former counsel’s Motion to be Relieved as Counsel was granted.

On July 10, 2020, the court denied MJI and Javahery’s(“Defendants”) motion for summary judgment without prejudice “at least until the discovery issues are resolved.” (see July 10, 2020 Minute Order at p. 8-9.) Specifically, the court held that Defendants were not entitled to rely on Plaintiffs’ deficient responses to discovery because Plaintiffs’ previous discovery responses only stated objections and Defendants’ motions to compel further responses were still pending as of the hearing on Defendants’ motion for summary judgment.

On July 31, 2020, Plaintiff’s counsel Robert Kitson of The Myers Law Group, A.P.C. filed a Notice of Appearance.

Defendants have filed eight motions to compel Plaintiff to provide further responses to discovery. Plaintiff’s new counsel has filed one consolidated opposition to all eight motions. The court has reviewed Defendants’ moving papers as to each motion, Plaintiff’s opposition, and Defendants’ consolidated reply. The court will discuss all eight motions concurrently, as follows:

  1. Javahery’s Motion to Compel Further Responses to Special Interrogatories, Set One;

  2. Javahery’s Motion to Compel Further Responses to Requests for Production, Set One;

  3. Javahery’s Motion to Compel Further Responses to Requests for Admission, Set One;

  4. Javahery’s Motion to Compel Further Responses to Form Interrogatories, Set One;

  5. MJI’s Motion to Compel Further Responses to Special Interrogatories, Set One;

  6. MJI’s Motion to Compel Further Responses to Requests for Production, Set One;

  7. MJI’s Motion to Compel Further Responses to Requests for Admission, Set One;

  8. MJI’s Motion to Compel Further Responses to Form Interrogatories, Set One;

Procedural History

Defense counsel propounded Plaintiff with Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One on behalf of both Defendants on June 12, 2019. (Declaration of Raymond J. Muro (“Muro”) in Support of Motion, ¶ 2, Exhibits A.) Subsequently, Plaintiff’s former counsel requested 3 extensions to respond, totaling 2 months, all of which were granted. (Muro Decl. ¶¶ 3-5; Exhibits B-D.)

Plaintiff’s former counsel served Plaintiff’s responses to each set of discovery on September 13, 2019. (Muro Decl. ¶ 6, Exhibits E.) Former counsel was relieved in November 2019.

On July 31, 2020, Plaintiff’s new counsel Robert Kitson filed a Notice of Appearance and served supplemental responses to each set of discovery. (Declaration of Robert M. Kitson (“Kitson”) in Support of Opposition, ¶¶ 3-5, Exhibit 1.)

Defendants, in their consolidated reply acknowledge that supplemental responses were served.

The Parties’ Meet and Confer Efforts

Muro attests that on or about September 24, 2019, he sent a meet and confer letter to Plaintiff’s former counsel regarding the alleged deficiencies in each of Plaintiff’s responses at issue in the instant motions and requesting supplemental responses. (Muro Decl. ¶ 7, Exhibit F.) Muro further attests that he met and conferred telephonically with Plaintiff’s former counsel Keith Wesley (“Wesley”) on September 27, 2019, and that he was informed no further responses would be forthcoming from Wesley’s office as they intended to withdraw from representing Plaintiff. (Muro Decl. ¶ 8.)

Discussion

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure sections 2030.300, subdivision (c), 2031.310, subdivision (c) and 2033.290, subdivision (c) a motion to compel further responses to interrogatories, requests for production or requests for admission must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c).)

Here, Plaintiff’s former counsel served responses to each set of discovery by mail on September 13, 2019. Thus, Defendants’ motion to compel deadline was November 4, 2019. Each motion was filed on November 4, 2019. As such, Defendants’ motions are timely.

  1. Analysis

Defendants move to compel a further response to each interrogatory and request in each of the eight sets of discovery served by Defendants, as discussed above.

In opposition, Plaintiff’s new counsel has attested under penalty of perjury that he served supplemental responses to each set of discovery at issue. (Opposition, 2-3; Kitson Decl. ¶ 3.) Since the motions all seek supplemental responses, that part of the motions is moot.

Monetary Sanctions

Defendants concede in reply that Plaintiffs served supplemental responses to each set of discovery at issue. However, Defendants maintain that sanctions are warranted and request a total of $7,055.00 in sanctions, as follow:

·$1,822.50, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Special Interrogatories (Set One);

· $1,705.00, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Requests for Production (Set One);

· $1,705.00, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Requests for Admissions (Set One);

· $1,822.50, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Form Interrogatories (Set One)”

(Reply, 2-3.) Defendants contend that sanctions are still warranted because the discovery was originally served when Plaintiff was represented by former counsel, and Defendants had to file the motions to compel to protect their rights to obtain responsive discovery responses. Plaintiff’s former counsel was advised of the discovery dispute before withdrawal, but nothing was done to address the dispute. (Id.)

As is appropriate, the motions requested sanctions against the party who did not comply with discovery obligations. While they could have been requested against counsel, they were not. Accordingly, the court must award sanctions against the party, if at all. Plaintiff’s discovery abused obligated Defendants to file the motions at some cost. Therefore, the court grants Defendants requests for sanctions as set forth above.

Conclusion

The court finds Defendants MJI and Javahery’s Motions to Compel Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One are moot as to the supplemental responses. Defendants’ requests for sanctions are granted. The moving party is to give notice as to each motion.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not make any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”



Case Number: ****0971    Hearing Date: July 10, 2020    Dept: 37

HEARING DATE: July 10, 2020

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

TRIAL DATE: August 18, 2020

PROOF OF SERVICE: OK

MOTION: Motion for Summary Judgment

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

OPPOSITION: June 26, 2020

REPLY: July 2, 2020

TENTATIVE: Defendants’ motion for summary judgment is DENIED. Plaintiff is to provide notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Javahery (“Javahery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages. In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, ; 3344 and (2) common law right of publicity.

On June 23, 2020, the court denied Plaintiff’s ex parte motion to continue the hearing on Defendants’ motion for summary judgment. The court found no exigent circumstances under which to justify ex parte relief, as Plaintiff’s former counsel withdrew October 30, 2019 and Defendants filed the instant motion on January 16, 2020.

MJI and Javahery now move for summary judgment or, in the alternative, summary adjudication on all of the following issues:

  1. Issue Number 1: The First Cause of Action for Right of Publicity Under Civil Code Section 3344 Has No Merit Because Plaintiff Has Not and Cannot Establish Essential

    Elements.

  2. Issue Number 2: The First Cause of Action for Right of Publicity Under Civil

    Code Section 3344 Is Barred by The Two-Year Statute of Limitations Pursuant to Code of Civil Procedure Section 339.

  3. Issue Number 3: The Second Cause of Action for common Law Right of Publicity Has No Merit Because Plaintiff Has Not and Cannot Establish Essential Elements

  4. Issue Number 4: The Second Cause of Action for Common Law Right of Publicity is Barred by The Two-Year Statute of Limitations Pursuant to Code of Civil Procedure section 339.

  5. Issue Number 5: The Claim for Punitive Damages Fails as A Matter of Law

    Because There Are No Facts Demonstrating That Defendants Are Guilty of Oppression,

    Fraud, Or Malice.

Plaintiff opposes the motion.

Request for Judicial Notice

Defendants request that the court take judicial notice of the following:

  1. Plaintiff’s Complaint.

Defendants’ request is granted. The existence and legal significance of this document is a proper matter for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

Evidentiary Objections

As a preliminary note, Javahery and MJI appear to object on reply to the entire Evan Brenner declaration and entire Ravit Brenner Declaration on the grounds that both constitute unlawful practice of law by a guardian ad litem. Javahery and MJI rely on J.W. v. Superior Court (1993) 17 Cal.App.4th 958 (J.W.) for this objection.

In J.W., a mother filed an application with the trial court requesting that she be appointed her minor son’s guardian ad litem in a paternity action. (Id. at 962.) The trial court rejected the mother’s application, stating that a guardian ad litem cannot represent a minor in propia persona. (Id. at 963.) The Court of Appeal upheld the trial court’s decision rejecting the mother’s application, noting that the guardian ad litem is not a party to the action but merely the representative of a party. (Id. at 964.) As such, the Court of Appeal concluded that neither common law nor guardianship statutes permit an exception to the prohibition against unauthorized practice of law which would permit the mother to act as her son’s guardian ad litem and also represent him in the action. (Id. at 964-973.)

Since November 12, 2020, Plaintiff has been without counsel of record. Although Plaintiff has attempted to litigate and has filed papers in this action as a self-represented party, a guardian ad litem may not litigate as a self-represented party for the minor child he or she represents. Plaintiff’s complaint does not state any causes of action in his individual capacity. Accordingly the court will not consider any of the papers filed by Plaintiff.

Factual Background

The factual background to the instant motion is taken from the motion.

Javahery is the designer and founder of MJI, a men’s clothing brand which he founded in 2005. (Separate Statement of Undisputed Material Facts in Support of Motion (“DSS”), ¶ 2; Exhibit 1 (Javahery Declaration), ¶ 2.) Javahery was manufacturing and operating the Mika Jaymes label through his company, Volume, Inc. by August 2005. (DSS ¶ 10; Exhibit 1 at ¶ 5.)

Javahery contends he came up with the name “Mika Jaymes” for his clothing brand in mid-2005. (DSS ¶ 2; Exhibit 1 at ¶ 3; Exhibit 2 (Jacki Javahery Decl.) at ¶¶ 3-4.)

Plaintiff’s Complaint tells a totally different story.

Further, Javahery contends he chose “MIKA” as part of MJI’s name to honor his grandparents by using the first letter of each of their names. (DSS ¶ 3; Exhibit 1 at ¶ 3.) Specifically, “M” is from “Moussa,” Javahery’s maternal grandmother, “I” is from Iran, Javahery’s paternal grandmother, “K” is from Kahlil, Javahery’s maternal grandfather and “A” is from Azizola, Javahery’s paternal grandfather. (DSS ¶¶ 4-7; Exhibit 1 at ¶ 3.) Additionally, Javahery contends that he chose “Jaymes” as an homage to the fictional character James Bond and that he added “Y” to distinguish his brand from James Bond as well as the men’s clothing brand, “James Perse.” (DSS ¶¶ 8-9; Exhibit 1 at ¶ 4.)

Around August 2005, Javahery informed his friend, now wife, Jacki Javahery about his idea to create a clothing brand called “Mika Jaymes.” (DSS ¶¶ 11-12; Exhibit 1 at ¶ 5; Exhibit 2 at ¶ 3.) Jacki Javahery agreed to showcase and sell the Mika Jaymes clothing in her showroom beginning August or September 2005. (DSS ¶ 13; Exhibit 1 at ¶ 5; Exhibit 2 at ¶ 3.) Further, Jacki Javahery attests that around this time, she told Ravit Sahar that Javahery wanted to start a clothing line called “Mika Jaymes” and that Ravit Sahar replied that it was “cool.” (DSS ¶ 14; Exhibit 2 at ¶ 4.)

Mika Brenner was born in or around October 2005. (DSS ¶ 15; Exhibit 2 at ¶ 5.) Jacki Javahery and Javahery attest that they did not know Mika’s middle name was “Jaymes” until the present action was filed. (DSS ¶ 16; Exhibit 1 at ¶ 11; Exhibit 2 at ¶¶ 6-7.)

On or about January 24, 2006, Javahery registered “Mika Jaymes” as a domestic corporation with the California Secretary of State. (DSS ¶ 17; Exhibit 1 at ¶ 6.) In January 2017, California Apparel News contacted Javahery for an interview on MJI to be published in the January 2017 issue of their magazine. (DSS ¶ 18; Exhibit 1 at ¶ 9.) Javahery indicated in the interview that the brand “Mika Jaymes” takes its name from his grandparents. (DSS ¶ 19; Exhibit 1 at ¶ 9.)

Javahery contends that Mika Brenner’s name had no influence on his decision to name his brand Mika Jaymes. (DSS ¶ 20; Exhibit 1 at ¶ 11.) Moreover, Javahery first met Mika Brenner at a wedding in 2009, approximately (4) years after Javahery named his clothing brand “Mika Jaymes.” (DSS ¶ 21; Exhibit 1 at ¶ 12.)

On June 12, 2019 Defendants MJI and Javahery each propounded Request for Admissions, Request for Production of Documents, Special Interrogatories and Form Interrogatories, Sets One on Plaintiff. (DSS ¶ 23; Exhibit 3 (Muro Declaration) at ¶¶ 3-9; Exhibits 3-A to 3-F (Plaintiff’s Discovery Responses).) Plaintiff responded to each and every interrogatory and request with objections only and did not produce any responsive documents. (DSS ¶ 24.) Defendants’ discovery asked that Plaintiff state facts, identify witnesses and produce documents in support of each of his causes of action as well as his prayer for punitive damages. (DSS ¶¶ 25-30.) Defendants filed motions to compel further answers to the discovery which are now set to be heard in August 2020.

Discussion

  1. Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

     

  1. Whether Plaintiff’s Action Is Outside Statute of Limitations

An action for right of publicity is a type of action for invasion of privacy. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409.) Invasion of privacy claims are subject to the single-publication rule under Civil Code section 3425.3. (Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476.) Further, a cause of action for right of publicity carries a two-year statute of limitations. (Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 874.) Civil Code section 3425.3 provides as follows:

“No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”

Under the single-publication rule, a cause of action accrues, and the limitations period commences, when material which Plaintiff claims violates their rights is first distributed to the public. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245-1246.) The limitations period commences after first distribution whether or not Plaintiff becomes aware of the distribution unless the material was distributed in an “inherently secretive” manner. (McGuinness v. Motor Trend (1982) 129 Cal.App.3d 59, 62-63.) However, if the material at issue in Plaintiff’s action is not a single publication but instead a series of publications then the limitations period may not expire even if more than two years has passed since first distribution. (Christoff v. Nestle USA, Inc., supra 47 Cal.4th 468 [finding that statute of limitations had not expired in soccer player’s action against Nestle for printing his likeness on a label continuously for five years on the grounds that single-publication rule did not apply.])

Defendants first contend that summary judgment is warranted because Plaintiffs’ action is brought outside of the two-year statute of limitations. (Motion, 6-8.) Further, Defendants contend that the discovery rule does not apply to toll the statute of limitations in this instance. (Id.) Specifically, Defendants contend that because Javahery created the “Mika Jaymes” name in 2005 and Plaintiff did not file their action until 2018, this means that Plaintiff’s action falls well outside the statute of limitations and is time-barred.

The court disagrees. This facts of this action are similar to that of Christoff, in which Plaintiff’s action alleged that Defendant wrongfully used his likeness on its products continuously, for five years. Here, Plaintiff alleges that Javahery and MJI continue to use Mika Brenner’s name on his clothing line, MJI, and that such use began in or around 2006. Further, it is undisputed that Defendants continue to use “Mika Jaymes” in their clothing line. As such, there is no single instance of publication from which the statute of limitations has run.

Accordingly, the court does not grant Defendants’ motion on this basis.

  1. Whether Plaintiff Has Evidence in Support of First and Second Causes of Action

“California law has long recognized ‘the right to profit from the commercial value of one's identity as an aspect of the right of publicity.’ ” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 (Orthopedic Systems).) There are two vehicles a plaintiff can use to protect this right: a common law cause of action for commercial misappropriation and a claim under Civil Code, section 3344. (Ibid.) The right of publicity distinctly protects an “economic interest” and is personal in nature, such that the owner of the right has the exclusive authority to assign it during his or her lifetime. (Timed Out, LLC v. Youabian (2014) 229 Cal.App.4th 1001, 1010.)

Civil Code, section 3344 provides in relevant part:

(a) Any person who knowingly uses another’s name . . . in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

(Civ. Code, ; 3344, subd. (a).)

“To prove the common law cause of action, the plaintiff must establish: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. To prove the statutory remedy, a plaintiff must present evidence of all the elements of the common law cause of action” and must also prove a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.” (Orthopedic Systems, 202 Cal.App.4th at p. 544.)

Defendants contend that summary judgment is warranted because Plaintiff’s discovery responses are completely devoid of facts, witnesses or documents in support of their causes of action. As discussed above, Defendants have presented evidence that they properly served Plaintiffs with discovery asking that Plaintiff identify facts, witnesses and documents in support of each of their causes of action. (DSS ¶¶ 23-27.) Further, Defendants have presented evidence that Plaintiffs have responded to their discovery requests with only served objections. (Id.)

“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof” to Plaintiff in a summary judgment motion. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) “Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Id.) However, responses that state only objections are not factually devoid responses. The propounding party must first obtain an order overruling the objections and requiring further responses setting forth the facts if any. Defendants have started this process, but those motions are not going to be heard until August. As such this argument is premature.

Plaintiff represents minor children who may have a factual basis to oppose this motion and who deserve some time to retain new counsel to present those facts. Accordingly, Defendants’ motion is DENIED without prejudice, at least until the discovery issues are resolved, with respect to the first and second causes of action.

  1. Punitive Damages

Defendants also contend that they should be entitled to summary judgment on Plaintiff’s prayer for punitive damages as Plaintiff has not and can not provide any facts, witnesses or documents in support. Defendants submit evidence demonstrating that Plaintiff has served objection only responses to Defendants’ discovery requests, including the ones requesting that he identify facts, witnesses and documents in support of his request for punitive damages. (DSS ¶¶ 23-31; Exhibit 3 (Plaintiff’s Discovery Responses).)

For the same reason that this argument is premature, the court declines to grant summary adjudication with regard to Plaintiff’s request for punitive damages. For the reasons discussed above, Defendants may not rely on Plaintiff’s prior discovery responses to establish that Plaintiff has no evidence to support his claims for punitive damages.

Conclusion

Defendants’ motion for summary judgment is DENIED without. Defendant is to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not make any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”



Case Number: ****0971    Hearing Date: October 30, 2019    Dept: 37

HEARING DATE: October 30, 2019

CASE NUMBER: ****0971

CASE NAME: Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTY: Browne George Ross LLP (Counsel); Counsel for Cross-Defendant Evan Israel Brenner, Individually

OPPOSING PARTY: None

TRIAL DATE: May 12, 2020

PROOF OF SERVICE: OK as to Evan Israel Brenner, individually

MOTION: Motion to Be Relieved as Counsel

TENTATIVE: The court GRANTS Brown George Ross LLP’s motion to be relieved as counsel as to Evan Israel Brenner, individually.

Procedural Requirements

The moving party must comply with the requirements of California Rules of Court, rule 3.1362 before a motion to be relieved as counsel may be granted.

Notice: Pursuant to California Rules of Court, rule 3.1362(a) and Code Civil Procedure, section 284, Notice of Motion and Motion to be relieved as counsel must be served on the client and made on the Notice of Motion and Motion to be Relieved as Counsel – Form MC-051.

Served on client – Yes, motion served by mail and by email on September 27, 2019

On Form MC-051 – Yes

Declaration: California Rules of Court, rule 3.1362(c) requires that the motion be accompanied by a declaration of counsel on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Form MC-052 and state in general terms, without compromising confidentiality, the basis for withdrawal.

Grounds for Motion – Moving counsel attests that cross-defendant Evan Israel Brenner (Client) has rendered it unreasonably difficult for counsel to carry out its employment effectively and that Client has breached the retainer agreement by failing to pay attorney fees to counsel.

General terms, without compromising confidentiality – Yes

On Form MC-052 – Yes

Service: California Rules of Court, rule 3.1362(d) requires that the notice of motion and motion, declaration, and proposed order are served on the client and on all other parties who have appeared in the case. When served by mail under Code of Civil Procedure, section 1013, the notice must be accompanied a declaration confirming the address of the client.

Client served – Yes; however, the caption page of the proof of service filed in support of this motion lists the incorrect hearing date (October 31, 2019).

Client Address confirmed – Yes, by e-mail, to client’s current email address

Opposing Counsel served – Yes

Timely Served and Filed – Yes

Order: California Rules of Court, rule 3.1362(e) requires the proposed order relieving counsel be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel – Form MC-053 and specify all hearing dates scheduled in the action.

On Form MC-053 – Yes

Specify hearing dates – Yes, however the next hearing date specified is the final status conference on April 29, 2020. The next hearing date in this case is October 31, 2019 for Counsel’s motion to be relieved as counsel as to plaintiff and cross-defendant, Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner.

Substantive Merits

Unlike their clients, attorneys do not have an absolute right to withdraw from representation at any time with or without cause. “The right of counsel to withdraw from pending litigation is not absolute.” (Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197.) Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct, rule 3-700 and are subject to discipline for failure to do so. Where withdrawal is not mandatory, an attorney normally must continue representation on the matter undertaken. The fact the client or matter proves unpleasant or unprofitable does not excuse attorney performance. The rules have been liberally construed to protect clients. (See Vann v. Shilleh, supra, 54 Cal.App.3d. at p. 197; Chaleff v. Sup. Ct. (1977) 69 Cal.App.3d 721; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) An attorney, either with client’s consent or court’s approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to the client’s interests. A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar, 49 Cal.3d 753, 758-759), or by withdrawing at a critical point and thereby prejudicing the client’s case (Rules Prof. Conduct, rule 3-700(A)(2); Vann, supra, 54 Cal.App.3d at 197).

Where the procedures are properly followed, withdrawal is permitted in the appropriate circumstances. Pursuant to California Rules of Professional Conduct, rule 3-700(A)(2), “[a] member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.”

Counsel’s proposed order (form MC-053) for Client lists the next hearing date as the final status conference scheduled for April 29, 2020 at 8:30 am.

Counsel did not list the October 31, 2019 hearing on its motion to be relieved as counsel as to plaintiff and cross-defendant, Evan Israel Brenner, on behalf of his minor child, Mika Jaymes Brenner, in item 7.

The final status conference scheduled for April 29, 2020 should be listed in item number 8. Additionally, there are multiple other discovery motions set for hearing in June 2020 that should be listed in item number 8.

Counsel is ordered to appear at the hearing and submit proof of service of Cross-Defendant’s personal representative pursuant to California Rules of Court, rule 3.1362(d) and a corrected proposed order on form MC-053. In particular, item 7 of the MC-053 proposed order must read:

Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case. Those dates must be listed in the proposed order. For each hearing, Counsel must state the date, time, and location of the hearing (“111 N. Hill Street, Dept. 37, Los Angeles, CA 90012”).

Conclusion and Order

Counsel is ordered to submit a revised proposed order at the hearing on form MC-053 reflecting the October 31, 2019 hearing date and any additional hearings scheduled or due dates for discovery for this case.

Based on the notice of motion and the declaration filed by Counsel, the Court is inclined to grant the motion. However, Counsel must first submit a revised proposed order at or before the hearing on this motion.

Provided that Counsel files or presents the corrected MC-053 at or before the hearing on this motion, the motion to be relieved as counsel will be granted. Otherwise, the motion will be denied without prejudice.

Counsel should note that after the orders are signed, the orders will only become effective upon the filing of a proof of service of a signed copy the order on Client Evan Israel Brenner. Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order. Counsel will be ordered to serve a copy of the signed order (MC-053) on Client Evan Israel Brenner within three days.

Moving Counsel is ordered to provide notice of this order and file proof of service of such.



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