Judge: Wesley L. Hsu, Case: 22PSCV00901, Date: 2023-03-27 Tentative Ruling
Case Number: 22PSCV00901 Hearing Date: March 27, 2023 Dept: L
Ryu v. Teehee
Socks, Inc., et al. (22PSCV00901; R/T Case Nos. 21PSCV00336, 21PSCV01072 and
22PSCV00134)
1. Defendants Teehee Socks, Inc.’s, Jong Won Bok’s, TJ International Co. Ltd.’s and Taijin USA’s Demurrer to Plaintiff’s Complaint is OVERRULED.
2. Defendants Teehee Socks, Inc.’s, Jong Won Bok’s, TJ International Co. Ltd.’s and Taijin USA’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.
Background
Case No. 22PSCV00901
Miri Ryu (“Miri”) alleges as follows:
Miri owns the trademark known as “Teehee Kids” (“Mark”). Teehee Socks,
Inc. (“TSI”), Jong Wong Bok (“Bok”), TY International Co. Ltd. (“TJ
International”) and Taijin USA (“Taijin” and collectively with TSI, Bok, TJ
International and Taijin as “Defendants”) have used and are using the
Mark in commerce to sell children’s socks in the United States and
internationally via online services such as Amazon.com without Miri’s consent.
On August 22, 2022, Miri filed a complaint, asserting causes of action against TSI, Bok, TJ International, Taijin and DOES 1-100 for:
1.
Trademark
Infringement Under 15 U.S.C. § 1114(1)
2.
False
Designation of Origin Under 15 U.S.C. § 1125(a)
3.
Unfair
Competition Under Bus. & Prof. Code §§ 17200 et seq.
4.
Common
Law Trademark Infringement
5.
Common
Law Unfair Competition
On September 8, 2022, the court related this instant case to Case No. 21PSCV00336; Case No. 21PSCV00336 was designated the lead case.
On October 17, 2022, Defendants filed a Demurrer and Motion to Strike. Miri filed her Oppositions on January 17, 2023. At the hearing on January 31, 2023, the court continued the hearings to February 27, 2023. A Case Management Conference is set for March 23, 2023.
A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Discussion
Defendants demur, pursuant to Code of Civil Procedure section 430.10, to the first through fifth causes of action in Miri’s complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.
At the outset, the court notes that while Miri asserts that Defendants failed to meet and confer at least five days before their responsive pleading was due, Miri does not appear to contend that no meet and confer was conducted whatsoever; accordingly, the court will proceed to the merits of the demurrer.
Defendants’ demurrer is overruled. The court notes that the “ARGUMENT” section of said demurrer spans a mere 12 lines and argues only that Miri has improperly referred to them collectively as “Defendants,” has failed to state when any of the allegedly improper activity took place and has not provided “even the most basic description of the conduct that is allegedly actionable.” (Demurrer, 5:23-24).
TSI, Bok, TJ International and Taijin do not address any of the elements of Miri’s five causes of action and do not explain how the complaint is uncertain. “A special demurrer on the ground that an answer is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.) TSI, Bok, TJ International and Taijin have failed to provide the court or opposing counsel with any information as to where specifically the complaint is ambiguous, uncertain or unintelligible or otherwise deficient.
The court declines to perform an analysis of the sufficiency of Miri’s complaint for TSI’s, Bok’s, TJ International’s and Taijin’s benefit.
2. Motion to Strike
Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)
Discussion
Defendants move to strike out the following portions of Miri’s complaint:
1.
“Miri is also informed and believes and based thereon
alleges that Defendants' wrongful use of the Mark was and is willful,
intentional, malicious, and oppressive, and was done specifically to profit
from the goodwill of the Mark and in direct disregard of Miri' s rights in the
Mark. Therefore, Miri is entitled to punitive damages under California Civil
Code Section 3294 in an amount according to proof." (Complaint par. 48,
page 8, lines 25- 28; page 9, lines 1-2).
2.
“Miri is also informed and believes and based thereon
alleges that Defendants' wrongful use of the Mark was and is willful,
intentional, malicious, and oppressive, and was done specifically to profit
from the goodwill of the Mark and in direct disregard of Miri' s rights in the
Mark. Therefore, Miri is entitled to punitive damages under California Civil
Code Section 3294 in an amount according to proof.” (Complaint par. 57, page
10, lines 3-7).
3.
Plaintiff’s prayer “for punitive damages in an amount
according to proof.” (Complaint page 10, line 28).
4.
Plaintiff’s prayer “for punitive damages in an amount
according to proof.” (Complaint page 11, line 3).
Again, at the outset, the court notes that while Miri asserts that Defendants failed to meet and confer at least five days before their responsive pleading was due, Miri does not appear to contend that no meet and confer was conducted whatsoever; accordingly, the court will proceed to the merits of the motion to strike.
Defendants’ motion is denied. The court notes that Defendants’ argue, without more, that “[t]he consequence of Plaintiffs usage of the omnibus term ‘Defendants’ is that Plaintiff has failed to allege facts sufficient to show that any defendant is guilty of fraud, oppression, or malice so as to justify an award of punitive damages against them.” (Motion to Strike, 5:19-22).
Defendants have failed to provide the court or opposing counsel with any information as to how Miri’s use of the term “Defendants” undermines her request for punitive damages. The court declines to perform an analysis of the sufficiency of Miri’s punitive damages allegations for Defendants’ benefit.