Judge Kerry Bensinger, Case Number: 24STCV13786, Date: 2025-04-22 Tentative Ruling

MOVING PARTY: Defendants Malibu Psychic Spiritual Center, Inc. and Alexus Miller

On May 31, 2024, plaintiffs Malibu Psychic, a d.b.a. of George Merino, and George Merino (collectively, Plaintiff) commenced this action against defendants Malibu Psychic Spiritual Center, Inc. (erroneously sued as Malibu Psychic) (MPSC), Alexus Miller (erroneously sued as Alexis Miller) (Miller), Andrew Adams (Adams), Carol Stanton (Stanton), and Diane Ray (Ray) (collectively, Defendants).

On July 18, 2024, Plaintiff filed the operative Verified First Amended Complaint (FAC) against Defendants for (1) Violation of Common Law Trademark Rights Under Cal. Bus. & Prof. Code § 14245; (2) Trademark Dilution and Injury to Business Reputation Under Cal. Bus. & Prof. Code §§ 14330 to 14335; (3) Unfair Competition and False Advertising Under Cal. Bus. & Prof. Code §§17200 and 17500, et seq., (4) Trespass to Land; (5) Trespass to Land; (6) Conversion by Vandalism; (7) Conversion by Vandalism; (8) Intentional Infliction of Emotional Distress; and (9) Application and Request for Injunctive Relief.

On January 21, 2025, MPSC and Miller (hereafter, Defendants) filed this demurrer to the first, second, third, eighth and ninth causes of action in the FAC.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”¿(Code Civ. Proc., § 430.41, subd. (a).)

Here, Defense counsel admits having not complied with the meet and confer requirement. (See Kurtz Decl., ¶ 2.) Notwithstanding this procedural defect, the court will consider the merits of the demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

Defendants demur to the first, second, third, eighth, and ninth causes of action. The court addresses each in turn.

1. Violation of Common Law Trademark Rights Under Cal. Bus. & Prof. Code § 14245 (1^st Cause of Action)

“A trademark may be protected under the common law . . . if it is either inherently distinctive or has acquired distinctiveness.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 336-337.) “Inherently distinctive trademarks—such as fanciful, arbitrary, or suggestive words and symbols—are protected ‘because their intrinsic nature serves to identify a particular source of a product [or service].’” (Id., at p. 337, quoting Two Pesos, Inc. v. Taco Cabana, Inc. (1992) 505 U.S. 763, 769 (Two Pesos).) However, “trademarks that are not inherently distinctive—such as descriptive words or symbols—are protected only if they have acquired secondary meaning, i.e., they ‘h[ave] become distinctive of the [owners'] goods [or services] in commerce.’” (Ibid, quoting Two Pesos, supra, 505 U.S. at p. 769.)

To state a claim for common law infringement of a tradename in California, a plaintiff must allege: “existence of prior and continuous use of a tradename in such a way that a secondary meaning is acquired, subsequent use of a confusingly similar trade name by the defendant, and likelihood of confusion in the minds of the public of the defendant's business as that of, or as one affiliated with, the plaintiff.”¿ (Sunset House Distributing Corp. v. Coffee Dan's, Inc. (1966) 240 Cal.App.2d 748, 753.)

Defendants argue the first cause of action fails because (1) the alleged mark—Malibu Psychic—is not entitled to protection under the law and (2) there are no facts alleged to satisfy the requirement under Business and Professions Code section 14245 that the use is likely to cause confusion or mistake, or to deceive as to the source of origin of the goods or services.

Defendants’ first argument is undeveloped. Defendant merely asserts without any explanation or analysis that under prevailing law, Plaintiff’s alleged trademark is not entitled to protection. The court will not guess at or construct for Defendants the foundation of their demurrer.

Defendants’ second argument fares no better. Defendants ignore the allegations in the complaint, which include, “[n]umerous persons have contacted Plaintiff MALIBU PSYCHIC and/or GEORGE MERINO and stated that those persons had been ‘swindled’ and ‘deceived’ and ‘defrauded’ out of money by the unsavory and deceptive business practices of the proprietors, owners, and/or employees of Defendant MALIBU PSYCHIC, thereby injuring and damaging the good reputation and capacity to conduct business of Plaintiff MALIBU PSYCHIC and/or Plaintiff GEORGE MERINO whom those patrons believed to be one and that same with Defendant MALIBU PSYCHIC.” (Complaint, ¶ 16, emphasis in original.) Plaintiff’s allegation satisfies Business and Professions Code section 14245.

2. Trademark Dilution and Injury to Business Reputation Under Cal. Bus. & Prof. Code §§ 14330 to 14335[1] (2^nd Cause of Action)

Defendants argue the second cause of action fails because (1) the alleged mark—Malibu Psychic—is not entitled to protection under the law and (2) there are no facts alleged to satisfy the requirement of a likelihood of injury to business reputation or of dilution of the distinctive quality of a mark.

Defendants advance these same arguments as to the first cause of action. The court rejects them for the same reasons discussed above.

3. Unfair Competition and False Advetising Under Cal. Bus. & Prof. Code §§ 17200 and 17500 (3^rd Cause of Action)

Defendants demur to the third cause of action on the sole grounds that it improperly combines two distinctive causes of action: (1) unfair business practices (Business and Professions Code § 17200) and false advertising (Business and Professions Code § 17500). The court agrees. The court further notes the complaint does not clearly identify which allegations support each cause of action.

Accordingly, the demurrer to the third cause of action is SUSTAINED. Leave to amend is GRANTED.

The elements of an IIED cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, 221 Cal.App.4th at p. 780, quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)¿¿

Defendants argue the eighth cause of action is uncertain because the complaint does not make clear which defendant did what act. The court disagrees. The complaint alleges that Defendants ignored multiple cease and desist letters that Plaintiff sent to MPSC for their unauthorized use of the Malibu Psychic trademark (Complaint, ¶¶ 13-15), that numerous persons have complained about MPSC’s deceptive conduct which has hurt Plaintiff’s reputation (Complaint, ¶¶ 16-18), that after sending the cease and desist letters, Defendant Adams trespassed upon and damaged Plaintiff’s premises’ by breaking windows and tearing down signage (Complaint, ¶¶ 22-24), and that an unknown person claiming to have perpetrated the vandalism at Plaintiff’s premises on behalf of MPSC threatened Plaintiff in a phone call (Complaint, ¶ 25). The foregoing allegations are incorporated into Plaintiff’s eighth cause of action for IIED. (Complaint, ¶ 72.) These allegations are sufficient to state a claim for IIED.

Plaintiff seeks injunctive relief in connection to the claims for trademark infringement, trademark dilution, and violations of the unfair competition law. (Complaint, p. 23.)

Defendants demur to the ninth cause of action on the grounds injunctive relief is a remedy, not a cause of action. “Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65 (Allen).) The demurrer to the ninth cause of action is meritorious. However, Plaintiff may still obtain injunctive relief if they prevail on a cause of action. (See Allen, 234 Cal.App.4th at pp. 65-66 [“Although the order sustaining the demurrer was proper because an injunction is not a cause of action, plaintiffs may still obtain injunctive relief if they prevail on a cause of action.”].)

Accordingly, the demurrer to the ninth cause of action is SUSTAINED. Leave to amend is DENIED.

The demurrers to the third and ninth causes of actions are Sustained. Leave to amend is Granted as to the third cause of action only.

Plaintiff is to serve and file the First Amended Complaint within 20 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] The court notes that these statutory provisions were repealed in 2007 and replaced by Code of Civil Procedure section 14247.