Judge: Peter A. Hernandez, Case: 22PSCV00691, Date: 2023-06-05 Tentative Ruling

Case Number: 22PSCV00691    Hearing Date: December 4, 2023    Dept: K

Plaintiff The Buddhist Association of the United States’ Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff The Buddhist Association of the United States (“New York BAUS”) alleges as follows:

New York BAUS was formed in 1964 and is a New York non-profit corporation located in Carmel, New York. New York BAUS was granted tax exempt status by the Internal Revenue Service (“IRS”) in 1965. New York BAUS owns, manages and operates a large Buddhist monastery in Carmel, as well as a temple in the Bronx, offers a wide range of programs and has an extensive Internet presence through its website www.baus.org. New York BAUS also has active, registered trademarks for “Buddhist Association of the United States” and for its Chinese name. Defendant The Buddhist Association of the United States (“California BAUS”) was incorporated in California on May 10, 2005. In early 2018, the IRS communicated with New York BAUS about a change of address to a location in El Monte; it was at this time that New York BAUS learned that California BAUS was using the BAUS name and was also using New York BAUS’s federal EIN number for tax purposes, without its consent. California BAUS, Zhong Lin Sun (“Sun”), Zengkui Li (“Li”), Ke You Han (“Han”) and Chan De (“De”) (together, “Defendants”) have also used New York BAUS’s name, trademarks and other information without its consent.

On July 8, 2022, New York BAUS filed a complaint, asserting causes of action against California BAUS, Sun, Li, Han and De for:

1.                  Conversion

2.                  Fraud

3.                  Federal Trademark Infringement Under 15 U.S.C. § 1114(1)

4.                  Common Law Trademark Infringement

5.                  Unfair Competition Under California Business & Professions Code § 17200 et seq.

6.                  False Designation of Origin, False Advertising, and Unfair Competition Under 15 U.S.C. § 1125

7.                  California Common Law Unfair Competition

On November 7, 2022, an “Order for Service by Publication of Summons” was filed as to Sun, Li, Han and De; on December 9, 2022, proof of publication was filed.

On March 22, 2023, California BAUS’s, Sun’s, Han’s, Li’s and De’s defaults were entered.

An Order to Show Cause is set for December 4, 2023.

Discussion

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:

1.                  Plaintiff has failed to submit updated Judicial Council CIV-100 forms with the instant default prove-up application. Plaintiff’s default prove-up application submitted March 22, 2023 indicated that a total judgment of $7,646,910.00 (comprised of $7,600,000.00 in special damages, $3,695.00 in costs and $43,215.00 in attorney’s fees) against California BAUS, Sun, Han, Li and De. The proposed default judgment submitted August 18, 2023 reflects that Plaintiff now seeks a total judgment of $7,673,894.07 against the aforesaid defendants (comprised of $7,600,000.00 in damages, $6,229.07 in costs and $67,665.00 in attorney’s fees). Any further default prove-up application must be full and complete. The court will not accept any piecemeal submissions.

2.                  Plaintiff concurrently filed “Statement[s] of Damages and Punitive Damages[1]” against each of the defendants with the July 8, 2022 filing of its complaint. On July 20, 2022, Plaintiff filed a proof of substituted service as to California BAUS which does not indicate that California BAUS was served with a “Statement of Damages and Punitive Damages” at that time. (See also Menshivoka Decl., ¶ 3, Exh. 2.) Plaintiff’s counsel Anastasiya Menshivoka (“Menshivoka”) represents that California BAUS’s registered agent, Zhon Lin Sun, was subsequently served with a “Statement of Damages and Punitive Damages” on August 16, 2023 (Id., ¶ 7, Exh. 8), which is after default had been entered against California BAUS on March 22, 2023. The individual defendants were each served via publication. The proofs of publication do not indicate that the individual defendants were served with “Statement[s] of Damages and Punitive Damages” at that time. (Id., ¶ 4, Exh. 4.) Menshivoka represents that “Plaintiff also ran publications of the statements of damages for all Defendants in English in The Daily Journal and in Mandarin in The World Journal,” that “[t]he English publication ran for 5 weeks from July 19, 2023 until August 23, 2023” and that “[t]he Mandarin version of the statements of damages was first published on August 14, 2023 and will run until September 25, 2023.” (Id., ¶ 7; see also, Exh. 7). A statement prescribed by Code of Civil Procedure § 425.115, subdivision (b), however, must be served “upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages.” (Code Civ. Proc., § 425.115, subd. (f) [emphasis added].)

3.                  Exhibit 6 consists of an English translation only. The original Chinese document must be included and authenticated.

4.                  15 U.S.C. § 1117, subdivision (c)(1) allows for an award of statutory damages for the use of a counterfeit mark “in connection with the sale, offering for sale, or distribution of goods or services” in the amount of “not less than $1,000 or more than $200,000 for counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.” Plaintiff identifies seven uses of Plaintiff’s trademarks by defendants, but does not explain what “type of goods or services” were “sold, offered for sale, or distributed” on those occasions. Plaintiff is requested to brief this issue for the court.