On 01/26/2017 SPIKES INC filed a Contract - Business lawsuit against JOHN YOON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
SPIKES INC. DBA HOLLYWOOD BODY JEWELRY
CRAVE BODY JEWELRY
JK TRADING INC
DOES 1 TO 25
JK TRADING INC. DBA CRAVE BODY JEWELRY
BOYD KARIE J.
GEORGIANNA THOMAS D.
BOYD KARIE J
OH JOHN H.
KESHISHIAN MILORD A.
9/13/2018: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET NUMBER ONE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN OH IN SUPPORT
2/20/2019: Proof of Service by Mail
3/12/2019: Declaration in Support of Ex Parte Application
4/3/2019: Statement of the Case
4/4/2019: Jury Instructions
5/6/2019: Notice of Lodging
6/21/2019: Minute Order
7/22/2019: Minute Order
5/24/2018: DECLARATION OF DEFENDANTS' COUNSEL, JOHN OH, RE: REDLINE VERSION OF PROPOSED ORDER RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
6/28/2017: DEFENDANT JK TRADING, INC.'S NOTICE OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION (SET ONE); MEMORANDUM OF POINTS AND AUTHORITIES
8/4/2017: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER LIMITING DISSEMINATION OF TRADE SECRETS AGAINST ALL DEFENDANTS IN THIS ACTION AND THEIR ATTORNEYS
8/31/2017: JOINT STATUS REPORT RE: STIPULATED PROTECTIVK ORDFR
11/2/2017: DECLARATION OF MILORD A. KESHISHIAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE ON PLAINTIFF'S MOTION TO COMPEL; ETC.
11/2/2017: Minute Order
Hearingat 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney FeesRead MoreRead Less
DocketMotion for Attorney Fees (and Expert Witness Fees); Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
DocketDeclaration (of Thomas D. Georgianna); Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
DocketMemorandum of Costs (Summary); Filed by John Yoon (Defendant)Read MoreRead Less
DocketMemorandum of Costs (Summary); Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
Docketat 1:30 PM in Department 37; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((In Chambers Court Order Regarding Notice of Entry of Judgment) of 07/22/2019); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (In Chambers Court Order Regarding Notice of Entry of Judgment)); Filed by ClerkRead MoreRead Less
DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by ClerkRead MoreRead Less
DocketOSC-RE Other (Miscellaneous); Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketPLAINTIFF'S COMPLAINT FOR: 1. MISAPPROPRIATION OF TRADE SECRETS; AND 2. INJUNCTIVE RELIEFRead MoreRead Less
DocketComplaint; Filed by Spikes, Inc. (Plaintiff)Read MoreRead Less
Case Number: BC648189 Hearing Date: January 21, 2020 Dept: 37
HEARING DATE: January 22, 2020
CASE NUMBER: BC648189
CASE NAME: Spikes Inc. v. John Yoon, et al.
MOVING PARTY: Plaintiff Spikes Inc.
OPPOSING PARTY: Defendants, John Yoon and JK Trading, Inc.
TRIAL DATE: None – Judgment Entered July 19, 2019
PROOF OF SERVICE: OK
PROCEEDING: Plaintiff’s Motion for Attorney’s Fees
OPPOSITION: December 20, 2019
REPLY: January 14, 2020
TENTATIVE: Plaintiff has not sustained its burden of proving and entitlement to fees, so the motion is DENIED. Plaintiff to give notice.
This is a complaint for misappropriation of trade secret and injunctive relief arising out of Plaintiff, Spikes, Inc., doing business as Hollywood Body Jewelry (“HBJ”) wholesale jewelry business. HBJ alleges that it only sells product from its website to merchants for placement in retail stores, and that information regarding HBJ’s clients is kept confidential on their server, on which information is kept confidential through various security measures HBJ undertakes. HBJ further alleges that it requires its employees to never disclose confidential information, which expressly includes HBJ’s customer lists.
Despite these measures, HBJ alleges that Defendants JK Trading, Inc., doing business as Crave Body Jewelry (“Crave”) and John Yoon (“Yoon”) caused their customers to begin receiving emails from Crave, despite never having interfaced with Crave, Yoon, or their business. HBJ further alleges that it discovered Crave and Yoon’s misappropriation beginning approximately September 2016 when it began discovering decoy customers on its own client list as well as a decline in sales. Further, HBJ alleges that although it notified Crave and Yoon of their conduct and demanded that they cease and desist, Crave and Yoon did not do so and continued to solicit customers of HBJ. The Complaint alleges that these customers could only have been known if the Email List was misappropriated, as HBJ alleged went to extensive security measures to keep the customer list secret.
HBJ’s operative Second Amended Complaint (“SAC”) alleges two causes of action for: (1) misappropriation of trade secrets under California Civil Code section 3426.1, and (2) injunctive relief.
On May 17, 2018, the court issued a preliminary injunction in this matter in favor of HBJ.
Thereafter, the matter proceeded to trial. On July 19, 2019, a judgment was entered in this matter, which reflects that the verdict reached by the jury following trial that concluded on April 26, 2019 was as follows:
HBJ was the owner of an email list of clients (“Email List”);
The Email List was secret at the time of the alleged misappropriation;
The email list had actual or potential independent economic value because it was secret;
HBJ made reasonable efforts to keep the Email List secret;
Yoon did NOT acquire or use the Email List by improper means;
Crave DID acquire or use the Email List by improper means;
Crave’s acquisition or use of the Email List was a substantial factor in causing HBJ harm or Crave to be unjustly enriched;
HBJ’s damages are as follows: $175,000 for past economic loss.
On June 21, 2019, following the conclusion of jury trial, the court ordered the preliminary injunction of June 28, 2018 dissolved. Crave and Yoon (“Defendants”) were ordered to destroy the Email List and to “instruct mail chimp to desist use [of] any emailing list provided to mail chimp by the defendant prior to May 17, 2019.” Further, Defendants were not to disseminate the information on the Email List in any manner were ordered to provide a declaration within 15 days indicating that they had complied with this order.
On August 2, 2019, HBJ filed the instant motion for attorney fees. Defendants oppose the motion.
HBJ requests attorney fees under Civil Code section 3426.4, which provides as follows:
“If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney’s fees and costs to the prevailing party. Recoverable costs hereunder shall include a reasonable sum to cover the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the prevailing party.”
As a preliminary note, Defendants’ opposition to HBJ’s motion consists only of the general argument that Civil Code section 3426.4 requires that the jury find Defendants to have misappropriate the trade secret(s) in question willfully and/or maliciously. (see generally, Opposition.) Defendants also contend that the jury found in favor of Yoon, in that Yoon was not found to have acquired the Email List by inappropriate means. As such, Defendants contend that no amount of attorney fees is warranted under the meaning of this statute.
While the court does not disagree that the jury found in favor of Yoon, the court finds that Defendants’ arguments about the meaning of the statute misplaced. Defendants have not cited the court to any authority, and the court is aware of none, which stands for the proposition that an award of attorney fees under this section requires a jury finding that Defendants misappropriated the trade secrets willfully or maliciously. Instead, the statutes simply states that “willful and malicious misappropriation exists” is a basis for the court to award reasonable attorney fees. However, if the jury did not find willful and malicious misappropriation, the court must do so for an award of fees.
HBJ contends that Defendant Crave willfully and maliciously misappropriated its Email List for the purposes of Civil Code section 3426.4. Defendants’ opposition does not directly address this contention and, as discussed above, merely contends that the jury was required to make such a determination.
HBJ contends that on September 18, 2016, Crave’s sales manager, Jay Cha (“Cha”) asked his friend and HBJ employee Andrew Oh (“Oh”) for help developing a client email list. (Motion, 1.) Cha testified at trial that Oh sent him an email list, and that he assumed that the list had been taken from HBJ. (Appendix A-B (Cha Trial Transcript at pp. 18:22-19:14, 36:10.) Cha also testified that he thought it was proper to use the list because Oh was sharing it with him. (id.)
On October 25, 2016, HBJ sent Crave a letter demanding that it cease and desist in using HBJ’s Email List. On November 11, 2016, Yoon, on behalf of Crave, responded to the October 25, 2019 letter and stated that he was “looking into this matter.” (Trial Exhibits 11-12.)
Thereafter, Crave allegedly failed to actually look into the matter or otherwise cease and desist. According to Cha, Yoon showed Cha the cease and desist letter and told Cha “don’t worry about it.” (Appendix D (Cha Transcript) at p. 22:20.) Further, Yoon allegedly admitted at trial that he never took actions to actually investigate the matter. (Appendix E (Yoon Transcript) at p. 92:27.)
As of December 6, 2016, Crave was allegedly sending marketing emails to a customer list of over 62,000 customers. (Trial Exhibit 73.) HBJ contends that Crave’s emails sent to this large client list could only have occurred if it misappropriated the Email List from HBJ. (Motion, 3.) HBJ contends that this willful and malicious misappropriation continued for two and a half years thereafter, including during the entirety of this action.
For example, Jin Yan Li (“Li”), a longtime HBJ customer, testified to receiving emails from Crave despite never having registered with Crave. (Appendix M (Li Transcript at pp. 56:8-59:14.) Further, another customer, Christian Grau, testified that he received emails on October 26, 2017 from Crave despite never registering with Crave. (Appendix O (“Grau Transcript”) at pp. 30:8-21.) Finally, after the preliminary injunction was entered, Julie Jang, HBJ’s chief financial officer, allegedly received an email on January 29, 2019 after the court issued its preliminary injunction against Crave. (Appendix R (“Jang Transcript”) at pp.149:10-152:3.)
There also was credible testimony that Crave worked with Hollywood to compare email lists to eliminate entries that only came from Hollywood. There were a number of non-Hollywood names on Crave’s list. Also, Plaintiff did not have credible evidence of mass mailings continuing after December 2016.
The jury found that there had been misappropriation, but not every misappropriation is willful and malicious. Otherwise, there would be no need for that language in the statute. Given the foregoing, the court finds that Crave’s misappropriation of HBJ’s Email List, a trade secret, was not willful and malicious for purposes of Civil Code section 3426.4. There is insufficient evidence of malice.
The hourly rate should reflect the local market for comparable representation. (Ketchum, supra, 24 Cal.4th at pp. 1128, 1138.) The reasonable hourly rate “is the product of a multiplicity of factors [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s representation, and the undesirability of the case.” (Id. at p. 1139, internal quotations omitted.) Where the record is bereft of evidence on the value of the attorney’s services, the court may rely on its own knowledge and experience to determine a reasonable fee. (Frank v. Frank (1963) 213 Cal.App.2d 135, 137 [“The knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer's fee, even though there was no specific evidence on the subject”]; accord, Dudman v. State of California (1983) 145 Cal.App.3d 617, 619.) “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375 (Raining Data).)
HBJ submits the declaration of its attorney, Thomas Georgianna (“Georgianna Decl.”) in connection with this motion. Georgianna attests that the rates for attorneys and staff in connection with this matter were as follows:
$475 for Karie J. Boyd
$375 for senior associates
$325 for associates
$195 for paralegals
$150 for legal secretaries or legal support staff.
(see Georgianna Decl. ¶ 4.) Further, Georgianna attests that from May 7, 2019 to trial, HBJ’s attorneys charged $300 per hour for managing attorneys, $250 per hours for associates and $150 per hour for paralegals. (Georgianna Decl. ¶ 20.) Finally, HBJ also requests expert witness fees for expert Matthew Albee, whose rate Georgianna attests is $290 per hour generally and $390 per hour for expert testimony. (Georgianna Decl. ¶ 23.)
Georgianna attests that his own rate is $375 on this matter and that he has been attorney in New York since 2002, and in California since 2006, for a total of 13 years in California and 17 years overall. (Georgianna Decl. ¶ 19.) However, Georgianna does not attest to any facts substantiating the rates for associate attorneys or paralegals, nor does HBJ submit any declarations in support of those rates.
The court finds that all of these rates are reasonable for attorneys in the Los Angeles area with comparable experience.
“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1321 (Christian).) The court “need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court’s sound discretion.” (Ibid.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 (Wilkerson).) “The basis for the trial court’s calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford).) “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375 (Raining Data).)
HBJ submits billing statements from its attorneys in support of a total request for fees in the amount of $357,258.40. HBJ has also submitted Georgianna Declaration to substantiate the amounts claimed. Based on the performance during trial and the trial preparation, the court considers the request reasonable, and would have approved the fee request if there were a legal entitlement to fees.
Plaintiff has not sustained its burden of proving and entitlement to fees, so the motion is DENIED. Plaintiff to give notice.