Design Furnishings V Zen Path Complaint

Case 2:10-cv-02765-WBS-GGH Document 1-1 Filed 10/13/10 Page 1 of 41
Exhibit 1
1 BRIAN CRONE, State Bar No. 191731 pjj py^

ERICK C. TURNER, State Bar No. 236186 rju^M ^ ^ ^ .., .
2 BERRY & BLOCK LLP Ssypenor Coyrt Qf Calntomiia,
2150 River Plaza Drive, Suite 415 Sseramento
3 Sacramento, CA 95833 Mi2S/2{llQ
(916)564-2000 ,
4 (916) 564-2024 FAX ^\mm
5 C a s e MumbiBS"
Attomeys for Plaintiff ^ A ^5f4s\ m
6 DESIGN FURNISHINGS, INC. . S ^ - ^ y I M-Ot
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SACRAMENTO Department
9 Assignments
Case Management 35
p XT Law and Motion 54
10 DESIGN FURNISHINGS, INC. v^dbc i N u . ^i^Q^g Compromise 14
11 Plaintiff,
COMPLAINT FOR DAMAGES
12 V.
1. Misrepresentation of copyright
13 ZEN PATH, LLC, and DOES 1 through 20, infringement under the DMCA, 17
inclusive. U.S.C. § 512(F);
14 2. Tortious interference with contract;
Defendants. 3. Tortious interference with prospective
15 economic advantage;
4. Unfair, deceptive, and fraudulent
16 business practices; and
5. Declaratory and injuntive relief.
17
18 NATURE OF THE ACTION
19 1. Plaintiff Design Furnishings, Inc. ("DFI" or "Plaintiff) sells furniture, including
20 wicker patio fumiture, on eBay, an Intemet auction site. Defendant Zen Path LLC
21 ("Defendant") falsely and maliciously represented to eBay that Plaintiffs sale of certain pieces
22 of wicker fumiture infringed upon its copyright, trademark, and other intellectual property
23 rights. Defendant's misrepresentations caused Plaintiff to be unable to sell any of its
24 merchandise on eBay and has, thus, resulted in lost sales and profits to Plaintiff. Plaintiff seeks
25 damages, injunctive relief, and declaratory relief to prevent Defendant from engaging in further
26 interference with its business
27 ///
28 ///
i
1 PARTIES
2 2. Plaintiff is now, and at all times relevant herein was, a corporation duly
3 organized and existing under the laws of the State of Califomia and authorized to do business in
4 the State ofCalifomia with its principal place of business in the County of Sacramento
5 3. Plaintiff is informed and believes, and based thereon alleges, that at all times
6 herein mentioned Defendant was a limited liability company organized in Nevada with its
7 principal place of business in Las Vegas, Nevada.
8 4. Plaintiff is ignorant of the true names and capacities of the Defendants sued
9 herein as Does 1 through 20, inclusive, and therefore sues these Defendants by such fictitious
10 names. Plaintiff will amend the Complaint to allege the true names and capacities of said
11 Defendants when the same is ascertained. Plaintiffis informed and believes, and based thereon
12 alleges, that each of these fictitiously-named Defendants is jointly responsible in some manner
13 for the acts and/or occurrences herein alleged, and that Plaintiffs injuries as alleged were
14 proximately caused by such Defendants.
15 5. Plaintiff is informed and believes, and based thereon alleges, that at all times
16 herein mentioned each of the Defendants was the agent of each of the remaining Defendants,
17 and in doing the things hereinafter alleged, was acting in the course and scope of such agency
18 with the permission and consent of his/her/its co-Defendants.
19 6. Plaintiff is informed and believes, and based thereon alleges, that Defendants,
20 and each of them, are principals, agents, partners, joint venturers, members, owners,
21 shareholders, directors, corporate officers, and/or alter egos of one and another, as the case may
22 be, and are, therefore, responsible for the acts, debts, obligations, and duties of the other, as the
23 case may be. Plaintiff is informed and believes, and based thereon alleges, that, at all times
24 relevant hereto, a unity of interest existed between Defendants such that any separateness
25 between the Defendants has ceased and that, if the acts are treated as those of any single one of
26 the Defendants alone, it would sanction a fraud or promote an injustice.
27 ///
28 ///
2
1 JURISDICTION AND VENUE
2 7. This Court has jurisdiction over this lawsuit pursuant to California Code of Civil
3 Procedure section 410.10 as Defendant purposefully caused injury to Plaintiff in the State of
4 Califomia, County of Sacramento. Plaintiff is informed and believes, and thereon alleges, that
5 Defendant regularly conducts business in the State of California, including business with the
6 residents of this state through eBay, a corporation with its principal place of business in
7 Califomia. Plaintiff is informed and believes, and thereon alleges, that the actions of Defendant
8 as fully set forth below were specifically directed toward, and did cause damage to. Plaintiff in
9 the State ofCalifomia, County of Sacramento.
10 8. Venue is proper in this judicial district pursuant to Cal. Code Civ. Proc. §395(a).
11 FACTUAL ALLEGATIONS
12 9. Plaintiff repeats, re-alleges, and incorporates the allegations set forth in
13 Paragraphs 1 through 8, inclusive.
14 10. Plaintiff is in the business of selling fumiture, including, but not limited to,
15 wicker patio fumiture. A significant portion of Plaintiffs sales are conducted over the intemet,
16 including through eBay.
17 11. Defendant sells fumiture, including wicker patio furniture, similar to that sold by
18 Plaintiff. Like Plaintiff, Defendant conducts sales over the intemet, including through eBay.
19 12. The wicker patio fumiture sold by Plaintiff and Defendant is available for
20 purchase through several different factories located in China; however. Plaintiff and Defendant
21 order from the same factory.
22 13. The wicker patio fumiture sold by Plaintiff and Defendant is not subject to any
23 design patent(s) and the public has not come to associate and identify the wicker patio fumiture
24 with any particular designer, person, and/or entity.
25 14. Defendant knows that it does not have design patents for the wicker patio
26 fumiture that both Plaintiff and Defendant sell on eBay. Despite requests from Plaintiff,
27 Defendant has not provided any evidence that they have design patents for any ofthe furniture at
28 issue.
3
1 15. eBay is a virtual Intemet marketplace on which members can sell goods and
2 services in an auction-style or fixed-price format. It is by far the largest site of its kind on the
3 Intemet, with more than one hundred million registered users Each product for sale on eBay
4 has its own web page, called a "listing" or "auction," which describes the product and allows
5 potential purchasers to bid on or purchase the product.
6 16. As an Intemet Service Provider ("ISP"), eBay is protected from liability by the
7 Digital Millennium Copyright Act ("DMCA") for listings that contain copyrighted text or
8 pictures or that advertise unauthorized copies of copyrighted material. {Hendrickson v eBay,
9 Inc (CD Cal 2001) 165 F.Supp.2d 1082, 1088.) The DMCA provides ISPs safe harbor from
10 liability for "infringement of copyright by reason of the storage at the direction of a user of
11 material that resides on a system or network controlled or operated by [the ISP] " (17 U.S.C.
12 §512(c)(1).) To qualify for protection from liability under this provision, an ISP must act
13 expeditiously to remove material that is claimed to be infringing upon receiving a "notice of
14 claimed infringemenf from the copyright owner. {Id § 512(c)(1)(C).) The requirements of a
15 notice of claimed infringement are spelled out in 17 U.S.C. § 512(c)(3)
16 17. The DMCA also provides a mechanism for a subscriber to an ISP who is targeted
17 by a notice of claimed infringement to contest the notice with the ISP Under 17 U.S.C. §
18 512(g), a subscriber to an ISP can submit a "counter nofice" to the ISP stating "under penalty of
19 perjury that the subscriber has a good faith belief that the material was removed . as a result of
20 mistake or misidenfification ofthe material." {Ibid § 512(g)(3).) An ISP continues to enjoy
21 safe harbor from liability if, upon receiving a counter notice from a subscriber, it notifies the
22 person who filed the notice of claimed infringement that it will reinstate the removed material in
23 ten to fourteen business days unless it receives notice that there is a pending legal action to
24 restrain the subscriber from continuing to post the allegedly infringing material. {Id §
25 512(g)(2).)
26 18. To meet the safe harbor requirements in the DMCA, eBay implemented a
27 program called the "Verified Rights Owner" or "VeRO" program. {See Hendrickson, supra,
28 165 F.Supp.2d at 1085 (citing eBay statement that VeRO procedures "are intended to
4
1 substantially comply with the requirements ofthe [DMCA]").) Owners of intellectual property
2 who register for the VeRO program can submit a notice of claimed infringement to eBay stating
3 that a particular auction violates their intellectual property rights. In filling out the nodce of
4 claimed infringement, the VeRO member must sign a statement, under penalty of perjury, that it
5 has a good-faith belief that the identified auction violates its intellectual property rights or the
6 intellectual property rights of someone it represents.
7 19. When a VeRO member submits a notice of claimed infringement regarding a
8 particular aucfion listing, eBay automafically terminates that listing eBay does not
9 independently review the validity of the notice of claimed infringement and trusts the VeRO
10 member's honesty that a particular auction is infringing.
11 20. When a certain number of an eBay seller's auctions are terminated because of
12 notices of claimed infringement from a VeRO member, eBay will suspend that seller's account.
13 The number of terminations required before the seller's account is suspended varies from seller
14 to seller.
15 21. If it is the first time a seller has been suspended, eBay will reinstate the seller's
16 account ifthe seller submits a signed request for reinstatement swearing under penalty of perjury
17 not to knowingly offer any items or post any listings on eBay that are illegal or that infringe the
18 rights ofany third parties. Ifa seller's account is suspended a second time because of notices of
19 claimed infringement from VeRO members, eBay will not reinstate the account absent a request
20 from the VeRO member that caused the suspension or a court order.
21 22. Defendant is a member of eBay's VeRO program. After joining the program,
22 eBay informed Defendant that if it received a notice of claimed infringement regarding a
23 particular auction, it would automatically terminate the auction and would reinstate the auction
24 at the VeRO member's request.
25 23. On or about September 23, 2010, Defendant filed several notices of claimed
26 infringement with eBay, swearing under penalty of perjury that they had a good faith belief that
27 Plaintiffs auctions of wicker patio fumiture violated Defendant's intellectual property rights,
28 including copyrights belonging to Defendant. Defendant continues to submit notices of claimed
5
1 infringement to eBay in an effort to have Plaintiffs ability to sell its products on eBay
2 permanently terminated.
3 24. After receiving the nofices of claimed infringement from Defendant, eBay sent
4 Plaintiff several emails notifying it that its auctions had been terminated. The message from
5 eBay stated, "Your item was removed because of a request we received from VeRO participant,
6 Zen Path, LLC, asking us to remove the item for: Item(s) infringes copyrights...." eBay
7 notified bidders on the auction that the auction had been terminated and that their bids were
8 canceled.
9 25. None of Plainfiffs lisfings contained any copyrighted information belonging to
10 Defendant. Defendant was aware of this fact at the time it submitted the notices of claimed
11 infringement under penalty of perjury to eBay, and it did so with the sole intent of damaging and
12 causing harm to Plainfiff.
13 26. As a result of Defendant's misrepresentations to eBay, Plaintiff had
14 approximately 35 auctions terminated and has been prevented from listing any new items for
15 sale. Thenumber of terminated auctions continues to grow each day.
16 27. Plainfiff has lost sales and will confinue to lose sales until such time as its rights
17 are reinstated by eBay.
18 28. Plaintiff has been damaged, and will be damaged, in an amount in excess of the
19 jurisdictional limit ofthis Court.
20 FIRST CLAIM FOR RELIEF
21 MISREPRESENTATION OF COPYRIGHT INFRINGEMENT UNDER THE DMCA, 17
22 U.S.C. § 512(f)
25 30. By submitting notices of claimed infringement to eBay regarding Plaintiffs
26 wicker patio furniture. Defendant knowingly and materially misrepresented that Plaintiffs
27 auctions infringed upon Defendant's copyright.
28 31. Defendant's conduct has resulted in lost profits for Plaintiff and other damages.
6
1 32. Plaintiff is entitled to recover its damages, including, but not limited to, punitive
2 damages, costs and attomeys' fees incurred in responding to the take down and costs and fees
3 associated with this suit pursuant to 17 U.S.C. § 505.
4 SECOND CLAIM FOR RELIEF
5 TORTIOUS INTERFERENCE WITH CONTRACT
8 34. Plaintiff had a valid contract with eBay to sell products on its auction site.
9 35. Plaintiff also had valid contracts with eBay shoppers who had placed bids on or
10 agreed to purchase Plaintiffs merchandise.
11 36. Defendant knew about Plaintiffs contracts with eBay and eBay shoppers.
12 37. Defendant intentionally filed false notices of claimed infringement to dismpt
13 Plaintiffs contracts. In the altemative, Defendant negligently filed the false notices of claimed
14 infringement.
15 38. Defendant's conduct caused eBay to interfere with its contract with Plaintiff by
16 terminating Plaintiffs auctions and prevenfing Plaintiff from postmg further auctions
17 39. Defendant's conduct also caused eBay shoppers who had placed bids or agreed to
18 buy its products to terminate their contracts with Plaintiff.
19 40. Defendant's conduct resulted in lost profits and other damages for Plaintiff in an
20 amount to be proven at trial but alleged to be in excess of the jurisdictional minimum of this
21 Court..
22 41. Defendant's conduct was willful, wanton, and malicious thereby entitling
23 Plaintiff to an award of punitive damages.
24 THIRD CLAIM FOR RELIEF
25 TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
28 ///
7
1 43. Plaintiff had an economic relationship with eBay, with the probability of future
2 economic benefit to Plaintiff.
3 44. Plaintiff also had economic relationships with potential purchasers who had bid
4 on its merchandise and/or agreed to purchase its merchandise or would have bid on or purchased
5 Plaintiffs merchandise from ongoing and/or future auctions
6 45. Defendant knew about Plainfiffs economic relationship with eBay and potential
7 purchasers of its merchandise by virtue of its involvement with eBay and its knowledge of
8 Plaintiffs business activity on eBay.
9 46. Defendant intentionally filed false notices of claimed infringement with eBay to
10 disrupt Plaintiffs prospective economic advantage so as to prevent Plaintiff from completing
11 sales. As a direct result of Defendant's unlawful conduct, eBay removed Plaintiffs auctions
12 which thereby terminated Plaintiffs ability to make one or more sales to prospective purchasers
13 of its products. In the altemative. Defendant negligently filed the false notices of claimed
14 infringement against Plaintiff.
15 47. Defendant's conduct was independently wrongful in that it violated the terms and
16 condifions of the VeRO agreement, consfituted an intentional violation of the DMCA and
17 constituted defamation per se.
18 48. Defendant's conduct has caused, and will continue to cause. Plaintiff to lose
19 future economic benefits by causing lost sales.
20 49. Defendant's conduct was willful, wanton, and malicious thereby entitling
21 Plaintiff to an award of punitive damages.
22 FOURTH CLAIM FOR RELIEF
23 UNFAIR, DECEPTIVE, AND FRAUDULENT BUSINESS PRACTICES
24 50. Plaintiff incorporates by reference paragraphs 1 through 49 above as though fully
25 set forth herein
26 51. The acts of Defendants, and each of them, as alleged herein constitute unfair and
27 unlawful competition in violation of California common law and California Business and
28 Professions Code section 17200. As demonstrated elsewhere herein, Plaintiffhas lost money or
8
1 property and suffered injury in fact as a result of Defendants' unfair and unlawful business
2 practices.
3 52. By reason of the foregoing, Defendants, and each of them, have been improperly
4 and unjustly enriched at the expense ofthe public and Plaintiff in an amount to be determined and
5 according to proof at trial. Defendants are obligated to make restitution to Plaintiff
6 53. Plaintiff and the public are being irreparably harmed by Defendants' unfair
7 business practices and unfair competition. There is no adequate remedy at law, thereby justifying
8 preliminary and permanent injunctive relief under Califomia Business and Professions Code
9 section 17203.
10 FIFTH CLAIM FOR RELIEF
11 DECLARATORY AND INJUNTIVE RELIEF
14 55. Defendant contends that Plaintiffs sale of wicker patio fumiture infringes upon
15 their copyright, trademark, and other unidentified intellectual property rights
16 56. Plaintiff contends that its actions do not infringe upon any of Defendant's
17 copyright, trademark, or other rights.
18 57. Defendant has threatened to take legal action against Plaintiff if Plaintiff
19 continues selling the furniture at issue.
20 58. Plaintiff continues to sell the fumiture at issue under threat of legal action by
21 Defendant and plans to continue doing so for the indefinite future.
22 59. Defendant has terminated Plaintiffs eBay auctions and has threatened to continue
23 doing so.
24 60. There is a real and actual controversy between Plaintiff and Defendant regarding
25 whether the continued sale of the fumiture at issue is lawful or whether it infringes defendants'
26 rights.
27 DEMAND FOR RELIEF
28 Plaintiff demands judgment as follows:
9
1 1. Actual damages and interest thereon;
2 2. Punitive damages;
3 3. Costs and attorneys'fees;
4 4. A declaratory judgment that Plainfiffs sale ofthe furniture at issue is lawful and
5 does not infringe upon Defendant's copyright, trademark, or other rights;
6 5. Injunctive relief; and
7 6. Such other relief as the Court finds appropriate.
9 DATED: September 28, 2010 BERRY & BLOCK LLP

10 V ^
By _
11 BRIAN CRONE
ERICK C. TURNER
12 Attomeys for Plaintiff
13
14 DEMAND FOR JURY TRIAL
15 Plaintiff Design Fumishings, Inc. hereby requests a trial by jury on all issues triable of
16 right by ajury.
17
18 DATED: September 28, 2010 BERRY & BLOCK LLP
19
20 BRIAN CRONE
ERICK C. TURNER
22
23
24
25
26
27
28
10
Exhibit 2
SUM-100
SUMMONS FOR COURr USE ONLY
(SOLO PARA USO DE LA CORTE)
(CITACION JUDICIAL)
NOTICE TO DEFENDANT:
(AVISO A L DEMANDADO):
Syperior Court Qf Califotfnia,
ZEN PATH, LLC, and DOES 1 through 20, inclusive
YOU ARE BEING SUED BY PLAINTIFF:

(LO E S T A DEIVIANDANDO EL DEMANDANTE): Bv
DESIGN FURNISHINGS, INC. a-— •'•
NOTICE! You have been sued The court may decide against you without your being heard unless you respond within 30 days Read the information
below
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff A letter or phone call will not protect you Your written response must be in proper legal form if you want the court to hear your
case There may be a court form that you can use for your response You can find these court forms and more information at the California Courts
Online Self-Help Center (www courtinfo ca gov/selfhelp), your county law library, or the courthouse nearest you If you cannot pay the filing fee, ask
the court clerk for a fee waiver form If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court
There are other legal requirements You may want to call an attorney nght away If you do not know an attorney, you may want to call an attorney
referral service Ifyou cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program You can locate
these nonprofit groups at the California Legal Services Web site {www lawtielpcalifomia org), the California Courts Online Self-Help Center
{www courtinfo ca gov/selfhelp), or by contacting your local court or county bar association NOTE The court has a statutory hen for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case The court's hen must be paid before the court will dismiss the case
lAVISOl Lo han demandado St no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su versidn Lea la infonmacion a
continuaadn
Tiene 30 DIAS DE CALENDARIO despu6s de que le entreguen esta ataadn y papeles legales para presentar una respuesta por escrito en esta
corte y hacer que se entregue una copia al demandante Una carta o una llamada telefdnica no lo protegen Su respuesta por escnto tiene que estar
en formato legal correcto st desea que procesen su caso en la corte Es posible que haya un formulano que usted pueda usar para su respuesta
Puede encontrar estos formulanos de la corte y mcis informacion en el Centro de Ayuda de las Cortes de California ("www sucorte ca gov^, en la
biblioteca de leyes de su condado o en la corte que le quede mis cerca Si no puede pagar la cuota de presentaadn, pida al secretario de la corte
que le d6 un formulano de exencidn de pago de cuotas St no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podr^ quitar su sueldo, dinero y btenes sm mis advertencia
Hay otros requisites legales Es recomendable que llame a un abogado inmediatamente Si no conoce a un abogado, puede llamar a un sen/icio de
remisidn a abogados Si no puede pagar a un abogado, es posible que cumpla con los requisites para obtener serviaos legales gratuitos de un
programa de serviaos legales sin fines de lucro Puede encontrar estos grupos sin fines de lucro en el sttio web de California Legal Services,
(www lawhelpcalifornia orgX en el Centro de Ayuda de las Cortes de California, fwww sucorte ca gov^ o poniindose en contacto con la corte o el
colegio de abogados locales A VISO Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacidn de $10,000 d mis de valor reabida mediante un acuerdo o una concesion de arbitraje en un caso de derecho civil Ttene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso
The name and address ofthe court is CASE NUMBER

(Numero del Caso)
(El nombre y direccidn de la corte es) Sacramento Superior Court
720 Ninth Street, Sacramento, CA, 95814 -^c)io-ooQeS'4i3
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is
'El nombre. la direccidn v el numero de teldfono del abogado del demandante. o del demandante que no tiene aboaado. es)
Brian Crone, Berry & Block, LLP, 2150 River Plaza Dr., Ste 415, Sacramento, CA 5*5833, (916) 564-2000
DATE SEP 2 9 2010 Clerk, by Deputy
(Fecha) (Secretario) (Adjunto)
(For proof of service ofthis summons, use Proof of Service of Summons (form POS-010))
(Para prueba de entrega de esta citatidn use el formulano Proof of Service of Summons, (POS-010))
NOTICE TO THE PERSON SERVED: You are served
1 as an individual defendant
2 I I as the person sued under the fictitious name of (specify)
on behalf of (specify)
under CCP 416 10 (corporation) CCP 416 60 (minor)

CCP 416 20 (defunct corporation) CD CCP 416 70 (conservatee)
CCP 416 40 (association or partnership) | | CCP 416 90 (authorized person)
other (specify)
4 I I by personal delivery on (date)
Page 1 of 1
Form Adopted for Mandatoty Use Code of Civil Procedure §§ 412 20 465
Judiaal Council of California
SUMMONS
www courimfo ca gov
SUM-100 [Rev July 1,2009]
Exhibit 3
Case 2:10-cv-02765-WBS-GGH Document 1-1 Filed 10/13/10 Page 15 of 41 CM-010
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and addressj FOR COURT USE ONLY
-Bnan Crone (SBN 191731)
BERRY & BLOCK, LLP
2150 River Plaza Drive, Suite 415
Sacramento, CA 95833 FfLEO
TELEPHONENO (916)564-2000 FAXNO (916)564-2024
Superior Court Qf CalSfo Tiia,
ATTORNEY FOR (Na^fie; Plaintiff, DESIGN FURNISHINGS, INC.
SUPERIOR COURT OF CALIFORNIA, COUNTT OF SACRAMENTO Sacramento
STREETADDRESS 7 2 0 Nitith Street
MAILING ADDRESS
CITYANDZIPCODE S a c r a m e i i t o , C A 95814
BRANCH NAME
CASE NAME efuty
Design Furnishings, Inc. v. Zen Path, LLC, et al. Case Numbar:
CASE NaMBEP_
CIVIL C A S E C O V E R SHEET Complex Case Designation
[ 7 1 Unlimited • Limited
I I Counter I I Joinder
(Amount (Amount
JUDGE
demanded demanded is Filed with first appearance by defendant
exceeds $25,000) $25,000 or less) (Cal Rules of Court, aile 3 402) DEPT
Items 1-6 below must be completed (see instructions on page 2)
1 Check one box below for the case type that best describes this case
Auto Tort Contract Provisionally Complex Civil Litigation
C Z ] Auto (22) •
Breach of contract/warranty (06) (Cal Rules of Court, rules 3 400-3 403)
I I Antitrust/Trade regulation (03)
I I Uninsured motonst (46) Rule 3 740 collections (09)
Other PI/PD/WD (Personal Injury/Property •
Other collections (09) I I Construction defect (10)
DamageA/Vrongful Death) Tort •
Insurance coverage (18) I I Mass ton (40)
I
I
j Asbestos (04)
I Product liability (24)
•
Other contract (37)
Real Property
I
I
I Securities litigation (28)
I Environmental/Toxic tort (30)
I I Medical malpractice (45) I I Eminent domain/Inverse I I Insurance coverage claims ansing from the
I I Other PI/PD/WD (23) condemnation (14) above listed provisionally complex case
I I Wrongful eviction (33) types (41)
Non-PI/PD/WD (Other) Tort
Enforcement of Judgment
Business tort/unfair business practice (07) I I Other real property (26)
• Civil nghts (08) Unlawful Detainer 1 J Enforcement of judgment (20)
• Defamation (13) I I Commercial (31) Miscellaneous Civil Complaint
• Fraud (16) I I Residential (32) I I RICO (27)
• Intellectual property (19) d l Drugs (38)
• Professional negligence (25) Judicial Review
L J Asset forfeiture (05)
I I Other complaint (not specified above) (42)
Miscellaneous Civil Petition
Other non-PI/PD/WD tort (35) I I Partnership and corporate governance (21)
Employment I I Petition re arbitration award (11)
[ I Other petition (not specified above) (43)
I I Wrongful termination (36) I I Writ of mandate (02)
I I Other employment (15) I I Other judicial review/ (39)
This case I I is I / I is not complex under rule 3 400 of the California Rules of Court If the case is complex, mark the
factors requinng exceptional judicial management
a I I Large number of separately represented parties d I I Large number of witnesses
b I I Extensive motion practice raising difficult or novel e I I Coordination with related actions pending in one or more courts
issues that will be time-consuming to resolve in other counties, states, or countnes, or in a federal court
c I I Substantial amountof documentary evidence f I I Substantial postjudgment judicial supervision
Remedies sought (check all that apply) a I I monetary b I I nonmonetary, declaratory or injunctive relief c | I punitive
Number of causes of action (specify) 5
This case I I is I / I is not a class action suit
If there are any known related cases, file and serve a notice of related
Date September 28,2010
BRIAN CRONE
(TYPE OR PRINT NAME)
NOTICE
• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code) (Cal Rules of Court, rule 3 220 ) Failure to file may result
in sanctions
• File this cover sheet in addition to any cover sheet required by local court rule
• If this case is complex under rule 3 400 et seq of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding
• Unless this is a collections case under rule 3 740 or a complex case, this cover sheet will be used for statistical purposes only
Page 1 of i
Form Adopted for Mandatory Use Cal Rules of Court rules 2 30 3 220 3 400-3 403 3 740
Judicial Counal of California CIVIL CASE COVER SHEET Cal Standards of Judicial Administration std 3 10
CM-010 [Rev July 1,2007) www couflmfo ca gov
Exhibit 4
1 BRIAN CRONE, State BarNo. 191731

ERICK C TURNER, State BarNo. 236186 FILED/ENDORSED I
2 BERRY & BLOCK LLP
3 Sacramento, CA 95833
(916)564-2000
4 (916) 564-2024 FAX
I By- V. DAVIS. DEPUTY CLERK
5
Attomeys for Plaintiff
6 DESIGN FURNISHINGS, INC.
7
8
COUNTY OF SACRAMENTO
9
10 DESIGN FURNISHINGS, INC. CaseNo. 34-2010-00088443

11 Plaintiff, PLAINTIFF DESIGN FURNISHINGS,
INC.'S EX PARTE APPLICATION RE:
12 V. PRELIMINARY INJUNCTION FOR
ORDER TO SHOW CAUSE AND
13 ZEN PATH, LLC, and DOES 1 through 10, REQUEST FOR TEMPORARY
inclusive, RESTRAINING ORDER PURSUANT
14 TO C.C.P. §§ 526, 527 and BUS. &
Defendants. PROF. CODE § 17203
15
Date: October 1, 2010
16 Time: 1:45 p.m.
Dept.: 54
17 Complamt Filed September 29, 2010
18 TO DEFENDANT AND ITS ATTORNEY OF RECORD:
19 Plaintiff DESIGN FURNISHINGS, INC ("Plaintiff or "DFI") hereby applies ex parte
20 for a temporary restraining order and for an order requiring Defendant ZEN PATH, LLC
21 ("Defendant"), and any officers, directors, shareholders, agents, employees, or anyone else
22 acting on behalf of or for Defendant to show cause why a preliminary injunction should not
23 issue pending trial in this action, enjoining Defendant and anyone acting in concert with
24 Defendant, from the following:
25 1. Submitting any further notices of claimed infringement to eBay stating that any
26 particular auction conducted by DFI violates Defendant's copyright, trademark, and other
27 intellectual property rights (collectively, "IP"); and
28 ///
i
PLAINTIFF DESIGN FURNISHINGS, INC.'S EX PARTE APPLICATION RE: PRELIMINARY INJUNCTION FOR ORDER TO
SHOW CAUSE AND REQUEST FOR TEMPORARY RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526,527 and BUS. &
PROF. CODE §17203
1 2. Further engaging in any action with eBay with the intent of interfering with Plaintiffs
2 ability to perform and transact business on eBay
3 DFI also requests the Court order Defendant to immediately notify eBay that DFI did
4 not infringe upon Defendant's copyright, trademark, or other intellectual property rights.
5 This application is made pursuant to the provisions of Code of Civil Procedure section
6 527 on the grounds that Defendant has repeatedly committed violations of Section 512(f) ofthe
7 Digital Millenium Copyright Act, intentionally and tortuously interfered with DFI's contractual
8 relations and prospective economic advantage, and engaged in unfair business practices in
9 violation ofCalifornia Business & Professions Code section 17200, et seq.
10 This application is based upon the Memorandum of Points and Authorities in Support,
11 the Declaration of Jennifer Hayes, the Declaration of Erick C Tumer, all the pleadings, orders
12 and files in this action, and such other and further evidence as may be presented at hearing.
13 Pursuant to Local Rule 3.04, the court will make a tentative rating on the merits of this
14 matter by 2:00 p.m., the court day before the hearing. You may access and download the court's
15 ruling from the court's website at http://www.saccourt ca.gov Ifyou do not have online access,
16 you may obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy
17 clerk will read the ruling to you. If you wish to request oral argument, you must contact the
18 courtroom clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and the
19 opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court
'20 and the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be
21 held.'
22
23 DATED: September 30, 2010 BERRy& BL0(ZK LLP
24
By_
25 BRIAN CRC
ERICK C y u p ^ E R
26 Attomeys fpr/'laintiff
27
28
2
PLAINTIFF DESIGN FURNISHINGS, INC.'S EX PARTE APPLICATION RE: PRELIMINARY INJUNCTION FOR ORDER TO
SHOW CAUSE AND REQUEST FOR TEMPORARY RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526,527 and BUS. &
PROF. CODE §17203
Exhibit 5

ERICK C TURNER, State Bar No 236186 FILED/ENDORSED |
2 BERRY 8c BLOCK LLP
3 Sacramento, CA 95833
(916) 564-2000
4 (916) 564-2024 FAX
BY: V. DAVIS, DEPUTYCLERK
DESIGN FURNISHINGS, INC.
6
7
8
DESIGN FURNISHINGS, INC. CaseNo 34-2010-00088443
9
Plaintiff, PLAINTIFF DESIGN FURNISHINGS,
10 INC.'S MEMORANDUM OF POINTS
V. AND AUTHORITIES IN SUPPORT OF
11 EX PARTE APPLICATION RE:
ZEN PATH, LLC, and DOES 1 through 10, PRELIMINARY INJUNCTION FOR
12 inclusive. ORDER TO SHOW CAUSE AND
REQUEST FOR TEMPORARY
13 Defendants RESTRAINING ORDER PURSUANT
TO C.C.P. §§ 526, 527 and BUS. &
14 PROF. CODE § 17203
Date: October 1, 2010
15 Time: 1-45 p.m.
Dept.: 54
16 Complamt Filed September 29, 2010
17 I. INTRODUCTION
18 As described more fully below. Defendant ZEN PATH, LLC ("Defendanf) has
19 embarked upon a crasade of vindictive, malicious, and unlawful behavior against Plaintiff
20 DESIGN FURNISHINGS, INC. ("DFI" or "Plaintiff) with the sole purpose of pemianentiy and
21 ineparably damaging DFI's ability to lawfully operate a business in competition with
22 Defendant.
23 DFI and Defendant both market and sell wicker patio fumiture on eBay. eBay is a
24 virtual Intemet marketplace on which members can sell goods and services in an auction-style or
25 fixed-price format. (Declaration of Jennifer Hayes ("Hayes Decl ") at ^^f 2 and 7.)
26 On or about September 22, 2010, Defendant falsely and maliciously represented to eBay
27 that several of DFI's auctions infringed upon Defendant's copyright, trademark, and other
28 intellectual property rights (collectively, "IP"). Defendant's misrepresentations caused eBay to

i
PLAINTIFF DESIGN FURNISHINGS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION RE: PRELIMINARY INJUNCTION FOR ORDER TO SHOW CAUSE AND REQUEST FOR TEMPORARY
RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526,527 and BUS. & PROF. CODE § 17203
1 terminate approximately 35 of Plaintiffs then ongoing auctions. Defendant's
2 misrepresentations fiirther caused eBay to suspend DFI's ability to conduct new sales and/or
3 create new auction postings. Since the date of its first misrepresentation to eBay, Defendant has
4 continued to submit written misrepresentations to eBay that additional auctions conducted by
5 DFI infringe upon its alleged IP. Rather than report the alleged infringements in one single
6 filing with eBay, Defendant is reporting the alleged infringements as separate and distinct
7 claims. Defendant has intentionally proceeded in this fashion to reduce DFI's "policy violation
8 rating" with eBay so low that eBay will, in accordance with its policies, permanently close
9 DFI's account. (Hayes Decl. at K^ 12-14.)
10 Out of necessity, DFI now requests the Court immediately enjoin Defendant as well as
11 Defendant's officers, directors, employees, representatives, agents, and anyone acting on its
12 behalf (collectively "Defendanf), and schedule an Order to Show Cause why Defendant should
13 not be enjoined pending trial ofthe action from: (1) submitting any further notices of claimed
14 infringement to eBay stating that any particular auction conducted by DFI violates Defendant's
15 IP; and (2) further engaging in any action with eBay with the intent of interfering with Plaintiffs
16 ability to perform and transact business on eBay. DFI also requests the Court order Defendant
17 to immediately notify eBay that DFI did not infringe upon Defendant's copyright, trademark, or
18 other intellectual property rights.
19 II. STATEMENT OF FACTS
20 DFI is in the business of selling fumiture, including, but not limited to, wicker patio
21 fumiture (the "fiimiture"). 100% of DFI's sales are conducted over the internet, with 95% of
22 those sales coming through eBay. Defendant sells fumiture, including wicker patio furniture,
23 similar to that sold by DFI. Like DFI, Defendant conducts sales over the intemet, including
24 through eBay. The fumiture sold by Plaintiff and Defendant is available for purchase through
25 several different factories located in China; however. Plaintiff and Defendant order from the
26 same factory. (Hayes Decl. at T| 2.)
27 In or about June 2010, Defendant contacted DFI's owner, Jennifer Hayes, and
28 knowingly misrepresented to Ms. Hayes that certain items DFI was selling on eBay belonged to
2
1 Defendant and were protected by copyrights and/or patents. Defendant falsely claimed that
2 certain pictures of the fumiture on DFI's auctions were copyrighted photographs belonging to
3 Defendant Although Defendant did not provide proof that the photographs were copyrighted,
4 Ms. Hayes immediately removed the allegedly copyrighted photographs, informing Defendant
5 that the photographs had been provided by the manufacturer. Thereafter, DFI used its own
6 photographs for auction postings. Ms. Hayes requested that Defendant provide registration
7 numbers for the design patent(s) for the furniture in which Defendant claimed an intellectual
8 property interest. Ms. Hayes agreed to cease selling the fumiture in question once Defendant
9 provided proof of its intellectual property rights in the fumiture. DFI had conducted its own
10 research and was unable to locate any design patent(s) for the fumiture. Defendant never
11 provided DFI with the requested proof; therefore, DFI continued to sell the fumiture. (Hayes
12 Decl. at Tf 3 and Exhibits A - B thereto.)
13 After DFI refused to stop selling the fumiture, Defendant contacted the manufacturer in
14 China and threatened to sue if the manufacturer continued selling the fiimiture to DFI. The
15 manufacturer, however, refiised to comply with Defendant's demand and continues to sell the
16 fumiture to DFI. (Hayes Decl. at T| 4.)
17 DFI did not hear anything more from Defendant conceming the fumiture or the pictures
18 (which had been immediately removed) until September 8, 2010 when DFI received a letter
19 from an attomey claiming to represent Defendant. The letter demanded that DFI cease sales of
20 the fiimiture. The letter claimed that DFI had violated copyright law by posting photographs
21 belonging to Defendant. The letter contained several exhibits showing that copyright
22 applications for the photographs had been submitted on August 27, 2010, which was nearly
23 three (3) months after DFI stopped using the photographs for its auctions. The letter threatened
24 litigation if DFI refiised to comply with the demands set forth in the letter. (Hayes Decl. at T| 5
25 and Exhibit C thereto.)
26 eBay is a virtual Intemet marketplace on which members can sell goods and services in
27 an auction-style or fixed-price format. It is by far the largest site of its kind on the Intemet, with
28 more than one hundred million registered users. Each product for sale on eBay has its own web
3
1 page, called a "listing" or "auction," which describes the product and allows potential
2 purchasers to bid on or purchase the product. (Hayes Decl. at ^ 7.) As an Intemet Service
3 Provider ("ISP"), eBay is protected from liability by the Digital Millennium Copyright Act
4 ("DMCA") for listings that contain copyrighted text or pictures or that advertise unauthorized
5 copies of copyrighted material. {Hendrickson v eBay, Inc., 165 F. Supp. 2d 1082, 1088 (CD.
6 Cal. 2001).) The DMCA provides ISPs safe harbor from liability for "infringement of copyright
7 by reason of the storage at the direction of a user of material that resides on a system or network
8 controlled or operated by [the ISP]." (17 U.S.C. §512(c)(1).) To qualify for protection from
9 liability under this provision, an ISP must act expeditiously to remove material that is claimed to
10 be infringing upon receiving a "notice of claimed infringement" from the copyright owner. {Id
11 §512(c)(l)(C).) The requirements ofa notice of claimed infringement are spelled out in 17
12 U.S.C. §512(c)(3).
13 To meet the safe harbor requirements in the DMCA, eBay implemented a program called
14 the "Verified Rights Owner" or "VeRO" program. {See Hendrickson, supra, 165 F. Supp. 2d at
15 1085 (citing eBay statement that VeRO procedures "are intended to substantially comply with
16 the requirements ofthe [DMCA]").) Owners of intellectual property who register for the VeRO
17 program can submit a notice of claimed infringement to eBay stating that a particular auction
18 violates their intellectual property rights. Infilling out the notice of claimed infringement, the
19 VeRO member must sign a statement, under penalty of perjury, that it has a good-faith belief
20 that the identified auction violates its intellectual property rights or the intellectual property
21 rights of someone it represents. (Hayes Decl. at f 8.)
22 When a VeRO member submits a notice of claimed infringement regarding a particular
23 auction listing, eBay automatically terminates that listing. eBay does not independently review
24 the validity of the notice of claimed infringement and trusts the VeRO member's honesty that a
25 particular auction is infringing. When a certain number of an eBay seller's auctions are
26 terminated because of notices of claimed infringement from a VeRO member, eBay will
27 suspend that seller's account. (Hayes Decl. at ^ 9 and Exhibit D thereto.)
28 ///
4
1 If it is the first time a seller has been suspended, eBay will reinstate the seller's account if
2 the seller submits a signed request for reinstatement swearing under penalty of perjury not to
3 knowingly offer any items or post any listings on eBay that are illegal or that infringe the rights
4 of any third parties. If a seller's account is suspended a second time because of notices of
5 claimed infringement from VeRO members, eBay will not reinstate the account absent a request
6 from the VeRO member that caused the suspension or a court order. (Hayes Decl. at ^ 10 )
7 Defendant is a member of eBay's VeRO program. After joining the program, eBay
8 informed Defendant that if it received a notice of claimed infringement regarding a particular
9 auction, it would automatically terminate the auction and would reinstate the auction at the
10 VeRO member's request. (Hayes Decl. at ^ 11.)
11 On or about September 22, 2010, Defendant filed a notice of claimed infringement with
12 eBay, swearing under penalty ofperjury that it had a good faith belief that DFI's auctions ofthe
13 fumiture violated Defendant's intellectual property rights, including copyrights belonging to
14 Defendant. After receiving the notices of claimed infringement from Defendant, eBay sent DFI
15 several emails notifying it that its auctions had been terminated. The message from eBay stated,
16 "Your item was removed because of a request we received from VeRO participant, Zen Path,
17 LLC, asking us to remove the item for: Item(s) infringes copyrights...." eBay notified bidders
18 on the auction that the auction had been terminated and that their bids were canceled. For
19 auctions that had already ended, all evidence of the postings was deleted. Thus, history of
20 recent sales made by DFI vanished. Unless DFI is contacted by the purchaser(s) on those sales,
21 those sales and profits will be lost forever. (Hayes Decl. at ^ 12 and Exhibits E - F thereto.)
22 None of DFI's listings contained any copyrighted information belonging to Defendant.
23 Defendant was aware of this fact at the time it submitted the notices of claimed infringement
24 under penalty of perjury to eBay, and it did so with the sole intent of damaging and causing
25 harm to DFI. As a result of DFI's misrepresentation to eBay on or about September 23, 2010,
26 DFI had approximately 35 auctions terminated and was prevented from listing any new items for
27 sale. Because of Defendant's malicious actions, DFI was blocked by eBay from posting any
28 new auctions, whether or not the auction is for the ftimiture. (Hayes Decl. at TI 13.)
5
RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526, 527 and BUS. & PROF. CODE § 17203
1 Defendant has continued, and is continuing, to submit notices of claimed infringement to
2 eBay. Defendant is now submitting individual notices of claimed infringement for each of
3 DFI's remaining listings in order to drive DFI's policy violation rating with eBay so low that
4 eBay will permanently suspend DFI's account. To date. Defendant has submitted 63 claims of
5 infringement which caused DFI's policy violation rating to go from "high" to "very low" on one
6 of DFI's accounts and from "high" to "low" on a second account. (Hayes Decl. at Tf 14 and
7 Exhibits G - N thereto.)
8 III. LEGAL ARGUMENT
9 A. Standard for Injunction (Restraining Order)
10 A preliminary injunction may be granted at any time before judgment. (Cal. Code of
11 Civ. Proc. § 527(a).) The granting ofa motion for a preliminary injunction is addressed to the
12 exercise of discretion by the court. The Court considers two intenelated factors when deciding
13 whether to grant an injunction. The first factor is the likelihood that the moving party will
14 prevail on the merits of its claims at trial. The second factor considered is the interim harm that
15 the moving party is likely to sustain ifthe injunction were denied as compared to the harm the
16 non-moving party is likely to suffer if the preliminary injunction were issued. {Fordev Bankof
17 Fmance (1982) 136 Cal.App.3d 38, 42; Pillsbury, Madison & Sutro v Schectman (1997) 55
18 Cal.App.4"^ 1279.)
19 Califomia Business & Professions Code section 17203 provides, in pertinent part, "[a]ny
20 person who engages, has engaged, or proposes to engage in unfair competition may be enjoined
21 in any court of competent jurisdiction. The court may make such orders or judgments . . . as
22 may be necessary to prevent the use or employment by any person of any practice which
23 constitutes unfair competition . . . ." In National Football League Properties, Inc v Wichita
24 Falls Sportswear, Inc, the court held that an injunction is the primary remedy for unfair
25 competition. The courts will generally, when unfair competition has been alleged and
26 adequately demonstrated, grant an injunction to protect the party from harm to its business. "An
27 injunction is the standard remedy in unfair competition cases." {National Football League
28 Properties, Inc v Wichita Falls Sportswear, Inc (W.D. Wash. 1982) 532 F.Supp. 651, 664.)
6
1 Given the foregoing, the Court may grant an injunction where, as here, the circumstances
2 wanant it.
3 Defendant has demonstrated time and again that it has no intentions of abiding by the
4 law. Defendant has further demonstrated that it will not cease its unlawful conduct until such
5 time as DFI is permanently prohibited from selling on eBay, if then. Consequently, DFI's only
6 remedy is for this Court to enjoin Defendant from continuing in its unlawfiil actions and to order
7 Defendant to undo the wrong it has done.
8 B. Irreparable Harm/Balance of Hardship
9 DFI will be ineparably harmed if Defendant is not enjoined from misrepresenting to
10 eBay that DFI has infringed on Defendant's IP rights, because DFI's account with eBay will be
11 permanentiy shut down, which will cause DFI to lose 95-100% of its annual revenue. DFI will
12 be forced out of business ifit is no longer able to sell on eBay. (Hayes Decl. at T| 15.)
13 Defendant has clearly demonstrated that it intends not only to continue its efforts to
14 undermine DFI's business, but to further "up the ante" by causing DFI's violation rating to
15 plummet to the point that eBay will permanently shut down DFI's account. The ongoing nature
16 of Defendant's actions makes it obvious that Defendant has no intention of stopping its
17 unlawful behavior. Accordingly, the only way that Defendant will discontinue its illegal
18 conduct is ifthis Court enjoins him from doing so. (Hayes Decl. at TfTf 11-14.)
19 In Bwsafe-One, Tne v Hawks, 524 F.Supp.2d 452 (S.D.N.Y. 2007) the Court granted a
20 preliminary injunction to stop improper infringement notices by a plaintiff to an action. The
21 court there held, "[a] preliminary injunction is necessary to retum defendants to the position
22 they occupied before plaintiffs filed the DMCA notices with their web hosting companies, as
23 plaintiffs have demonstrated twice that they will submit notices even when defendants' website
24 is not infringing." Here, Defendant has submitted multiple false claims to eBay. (Hayes Decl.
25 at Tflf 11-14.)
26 Ifthis injunction is granted, Defendant will experience little, ifany, hardship. Defendant
27 will still be able to pursue its business by any lawful means. Conversely, DFI will suffer
28 ///
7
1 immeasurable injury from the denial ofthe requested injunction. {Shoemaker v County of Los
2 Angeles (1995) 37 Cal.App.4"' 618.)
3 If not enjoined. Defendant will continue to submit false notices of infringement thereby
4 permanently and irreparably damaging DFI's ability to conduct its business on eBay. This will
5 destroy DFI's business. (Hayes Decl. at Tf 15.)
6 C. Likelihood of Prevailing on Merits
7 In determining if a preliminary injunction should issue, a court must determine if the
8 moving party is likely to succeed on the merits of his case. {UC Nuclear Weapons Labs
9 Conversion Project v Lawrence Livermore (1984) 154 Cal.App.3d 1157, 1160.) The facts in
10 this case demonstrate that DFI is likely to succeed on the merits of its claims.'
11 1. Defendant has Violated Section 512(f) of the DMCA.
12 To meet the safe harbor requirements in the DMCA, eBay implemented a program called
13 the "Verified Rights Owner" or "VeRO" program. {See Hendrickson, supra, 165 F. Supp. 2d at
14 1085 (citing eBay statement that VeRO procedures "are intended to substantially comply with
15 the requirements ofthe [DMCA]").) Owners of intellectual property who register for the VeRO
16 program can submit a notice of claimed infringement to eBay stating that a particular auction
17 violates their intellectual property rights. In filling out the notice of claimed infringement, the
18 VeRO member must sign a statement, under penalty of perjury, that it has a good-faith belief
19 that the identified auction violates its intellectual property rights or the intellectual property
20 rightsof someone it represents.
21 Defendant is well aware that it has no IP right in the fumiture. Defendant is also well
22 aware that DFI's auction postings did not contain any IP belonging to Defendant. More
23 importantly. Defendant was aware of these facts at the time it submitted the notices of claim of
24 infringement to eBay. Accordingly, DFI is likely to succeed on the merits of its claim under the
25 DMCA.
26
27 ,
DFI's claims were asserted in the Complaint filed on September 29, 2010. The Complaint is
28 attached hereto for the Court's convenience.
8
RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526, 527 and BUS. & PROF. CODE § 17203
1 2. Defendant Tortiously Interfered with DFI's Contractual Relations.
2 In Califomia, "courts provide a damage remedy against third party conduct intended to
3 disrapt an existing contract precisely because the exchange of promises resulting in such a
4 formally cemented economic relationship is deemed worthy of protection from interference by a
5 stranger to the agreement." {Delia Penna v Toyota Motor Sales, USA, Inc
6 (1995)llCal.4th376, 392.)
7 DFI had existing contracts with eBay and customers who had bid on its items at the time
8 Defendant intentionally misrepresented, under penalty ofperjury, that DFI had infringed on its
9 copyright, trademark, or other intellectual property right. As a result of Defendant's unlawfiil
10 conduct, DFI's contracts were disrupted. Defendant specifically intended to disrapt DFI's
11 contractual relationships with these parties when it violated the DMCA. Accordingly, DFI is
12 likely to succeed on the merits of its claim for tortious interference with contract.
13 3. Defendant Tortiously Interfered with DFI's Prospective Economic

Advantage.
14
15 While the courts have recognized that everyone is entitled to "establish and conduct a
16 lawful business" and is entitled to "the protection of organized society," the courts have placed
17 limits on this immunity. Seymour Buxbom v. E. F. Smith (1944) 23 Cal.2d 535, 546 states:
18 "...the commission of an actionable wrong is established against anyone who is shown to have
19 intentionally interfered with [another's business], without justifiable cause or excuse..."
20 DFI has invested considerable time and expense in establishing itself as a premier seller
21 on eBay. (Hayes Decl. at TI 6.) Defendant has, on numerous occasions, knowingly
22 misrepresented to eBay that DFI infringed upon Defendant's copyright, trademark, or other
23 intellectual property rights. (Hayes Decl. at TITf 11-14.) As a direct result of Defendant's
24 conduct, eBay terminated approximately 63 auctions and blocked DFI from posting any
25 additional items for auction; thus, precluding DFI from making any sales. Accordingly,
26 Defendant's actions have unlawfully interfered with DFI's business. (Hayes Decl. at TfTI 11-14.)
27 Defendant's methods are unfair and unlawful.
28 ///
9
1 4. Defendant's Unlawful Actions Constitute Unfair Competition.
2 Unfair competition is defined as "any unlawful, unfair or fraudulent business act or
3 practice " (Bus & Prof Code § 17200.) Section 17200 was purposely defined broadly to
4 include anything that can properly be called a business practice. {Podolsky, et al v First
5 Healthcare Corporation (1996) 50 Cal.App.4"' 632; Summit Technology, Inc v High-Line
6 Medical Instruments, Co (1996) 933 F.Supp. 918, 942.)
7 In the instant case, Defendant intentionally misrepresented that DFI had infringed upon
8 its copyright, trademark, or other intellectual property in violation ofthe DMCA. Defendant's
9 actions were deliberate, premeditated, and intended to further Defendant's ability to conduct its
10 business free of any competition. Defendant's acts, as described above, were clearly unlawful
11 and constituted unfair competition.
12 IV. CONCLUSION
13 Monetary damages are inadequate in the present case because, unless enjoined by the
14 Court, Defendant will continue to disrupt DFI's business and harm DFI's reputation and good
15 will. DFI will be required to maintain a multiplicity of judicial proceedings to protect its
16 interests, and will be irreparably harmed by the significant loss of business reputation and
17 revenue. The dramatic losses resulting from Defendant's unlawful activity may compromise the
18 viability ofthe business as an ongoing concem. Accordingly, DFI respectfully requests that the
19 Court issue preliminary and permanent injunctive relief enjoining Defendant from: (1)
20 submitting any ftirther notices of claimed infringement to eBay stating that any particular
21 auction conducted by DFI violates Defendant's intellectual property rights; and (2) fiirther
22 defaming DFI. DFI also requests the Court order Defendant to immediately notify eBay that
23 DFI did not infringe upon Defendant's copyright, trademark, or other intellectual property
24 rights.
25 DATED: September 30, 2010 BERR/&/1BL0CK LLP
26
27 ^RIAMRQNE
JRNER
28 Attor^ys |f(/r Plaintiff
10
Exhibit 6

ERICK C TURNER, State BarNo. 236186 ENDORSED
2 BERRY & BLOCK LLP
3 Sacramento, CA 95833 SEP 3 0 2009
(916)564-2000
4 (916) 564-2024 FAX
BY V DAVIS, DEPUTYCLERK
5
7
8
9
10 DESIGN FURNISHINGS, INC. Case No. 34-2010-00088443
11 Plaintiff,
PROOF OF SERVICE
12 V.
13 ZEN PATH, LLC, and DOES 1 through 10,

inclusive.
14
Defendants.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
Design Furnishings v Zen Path

Sacramento Superior Court, Case No. 34-2010-00088443
DECLARATION OF SERVICE
I am a citizen ofthe United States, over the age of 18 years, and not a party to or interested
4 in this action. I am an employee of Beny & Block LLP, and my business address is 2150 River
Plaza Drive, Suite 415, Sacramento, CA 95833. On this day I caused to be served the following
5 document(s):
6 PLAINTIFF DESIGN FURNISHINGS, INC.'S EX PARTE APPLICATION RE:
PRELIMINARY INJUNCTION FOR ORDER TO SHOW CAUSE AND REQUEST FOR
7 TEMPORARY RESTRAINING ORDER PURSUANT TO C.C.P. §§ 526, 527 and BUS. &
PROF. CODE § 17203; MEMORANDUM OF POINTS AND AUTHORITIES;
8 DECLARATION OF ERICK C. TURNER; DECLARATION OF JENNIFER HAYES;
and [PROPOSED] ORDER
9
10
Kl by placing O the original ^ a trae copy into sealed envelopes addressed and served as
follows:
11 Attornev for Plaintiff Plaintiff
Mark D. Nielsen Darla Messenger
12 CISLO «fe THOMAS ZEN PATH, LLC
1333 Second Street, Suite 500 6620 Escondido Street, Suite A
13 Santa Monica, CA 90401-4110 Las Vegas, NV 89119
(310) 451-0647; Fax: (310) 394-4477
14
15
D BY MAIL: I am familiar with this firm's practice whereby the mail, after being placed
in a designated area, is given fully prepaid postage and is then deposited with the U.S.
Postal Service at Sacramento, Califomia, after the close ofthe day's business.
16
BY PERSONAL DELIVERY: I caused such envelope to be delivered by hand."^^!^ ^
17
18
D BY OVERNIGHT COURIER: I caused such envelope to be placed for collection and
delivery in accordance with standard overnight delivery procedures for delivery the next
business day.
19
% •
BY FACSIMILE: I caused such documents(s) to be transmitted by facsimile
20 transmission from (916) 564-2024 to the person(s) and facsimile transmission without
number(s) shown about. The facsimile transmission was reported as complete without
21 enor and a transmission report was properly issued by the transmitting facsimile
machine. A true and conect copy ofthe transmission report will be attached to this
22 proof of service after facsimile service is completed.-Vo Nvo.<V_ /\U<i3isejpi orv.\.u
23 D BY FEDERAL ELECTRONIC FILING: I caused such document(s) to be
electronically filed with the Clerk ofthe Court using the CM/ECF system, which will
24 send notification of such filing and copies ofthe document(s) to the parties.
25 I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the
foregoing is trae and conect. Executed on September 30, 2010, at Sacramento, Califomia.
26
27
28
PROOF OF SERVICE
Exhibit 7

ERICK C TURNER, State Bar No. 236186 FILED^NDORSED
2 BERRY & BLOCK LLP
3 Sacramento, CA 95833 SEP 3 0 2009
(916)564-2000
4 (916) 564-2024 FAX
BY- V. DAVIS, DEPUTY CLERK
5
7
8
9
10 DESIGN FURNISHINGS, INC. CaseNo. 34-2010-00088443

11 Plaintiff, DECLARATION OF ERICK C.
TURNER IN SUPPORT OF PLAINTIFF
12 V. DESIGN FURNISHINGS, INC.'S EX
PARTE APPLICATION RE:
13 ZEN PATH, LLC, and DOES 1 through 10, PRELIMINARY INJUNCTION FOR
inclusive, ORDER TO SHOW CAUSE AND
14 REQUEST FOR TEMPORARY
Defendants. RESTRAINING ORDER PURSUANT
15 TO C.C.P. §§ 526, 527 and BUS. i&
PROF. CODE § 17203
16
17 Date: October 1, 2010

Time: 1 45 p.m.
18 Dept: 54
19 Complaint Filed September 29, 2010.
20 I, ERICK C TURNER, hereby declare:
21 1. I am an attomey licensed to practice before the Courts of the State of Califomia

22 and am an associate in the law firm of Berry & Block, LLC, attomeys of record for Plaintiff
23 DESIGN FURNISHINGS, INC. ("DFI's") in the above-entitled action. The following is based
24 on my personal knowledge and if called upon to testify I could and would competentiy testify
25 thereto.
26 2 On September 30, 2010, at approximately 9:30 a.m., I e-mailed Mark Nielsen,
27 attomey for Defendant, a letter informing him that our office would be appearing ex parte on
28 Friday, October 1, 2010, at 1:45 p.m. in Dept. 54 ofthe Court to be heard on DFI's application
i
DECLARATION OF ERICK C. TURNER IN SUPPORT OF PLAINTIFF DESIGN FURNISHINGS, INC.'S EX PARTE
APPLICATION RE: PRELIIVIINARY INJUNCTION FOR ORDER TO SHOW CAUSE AND REQUEST FOR TEMPORARY
1 for order to show cause and temporary restraining order. My assistant, Wendy Grimm, also sent
2 the letter to Mr. Nielsen via facsimile at or about 9:45 a.m. Attached as Exhibit A hereto is a
3 trae and conect copy of my letter to Mr. Nielsen and the e-mail that it was attached to.
4 Attached as Exhibit B hereto is a trae and conect copy of the facsimile transmission to Mr.
5 Nielson.
6 I declare under penalty of perjury under the laws of the State of California that the
7 foregoing is true and conect.
8 Executed this 30th day of Septeifehbr, 2010 at Sacramento, California
9
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DECLARATION OF ERICK C. TURNER IN SUPPORT OF PLAINTIFF DESIGN FURNISHINGS, INC.'S EX PARTE

Ey.VN\V)»V ft
Erick Turner
From: Erick Turner
Sent: Thursday, September 30, 2010 9 39 AM
To: 'Mark Nielsen'
Cc: Brian Crone, llene Block
Subject: Design Furnishings, Inc v Zen Path, LLC
Attachments: Nielson - Ex Parte doc
Mr. Nielsen,
Attached please find notice of tomorrow's ex parte hearing on Design Furnishings, Inc's application for temporary
restraining order.
Erick C. Turner
Attorney at Law
BERRY & BLOCK, LLP
Sacramento, CA 95833
eturner(5)berrvblock.com
Telephone: (916) 564-2000
Facsimile: (916) 564-2024
POSSIBLE ATTORNEY/CUENT COMMUNICATION
This transmission may contain material covered by the Attorney/Client privilege and may be intended as a confidential
communication This communication is intended for the addressee only Ifyou are not the intended recipient or an employee
responsible for receipt of this transmission, you should be aware that any distribution, copying, or communication of this
transmission is prohibited. Ifyou have received this communication in error, please notify us immediately
To ensure compliance with requirements imposed by the IRS, Berry & Block, LLP informs you that, ifany advice concerning a U S.
Federal tax issue is contained in this communication (including any attachments), such advice is not intended or written to be used,
and cannot be used, for the purpose of(i) avoiding penalties under the Internal Revenue Code or (11) promoting, marketing, or
recommending to another party any transaction or matter addressed herein
warn
BERRY & BLOCK LLP
ATTORNEYS AT LAW
September 30, 2010
VIA E-MAIL AND FACSIMILE (310) 394-4477

Mark D. Nielson, Esq.
Cislo & Thomas LLP
1333 2"" Sfreet, Suite 500
Santa Monica, CA 90401-4110
Re: Design Furnishings, Inc. v. Zen Path, LLC

Case No. 34-201034-00088443
Dear Mr, Nielson:
Please be advised that we will be appearing ex parte tomonow aftemoon on

an application for order to show cause and for temporary restraining order preventing
Zen Path, LLC from submitting further fraudulent claims that Design Fumishings,
Inc. is infringing on its copyright, trademark, patent, and/or other intellectual property
rights to eBay. Your client's malicious and unlawful actions have caused, and
continue to cause, my client to suffer ineparable harm.
The ex parte hearing is scheduled for Friday, October 1, 2010, at 1:45 p.m. in
Department 54 of the Superior Court, County of Sacramento, located at 800 9th
Street, Sacramento, CA 95814. Please advise whether you or anyone else on your
behalf intends to appear and oppose our client's application so that we may advise the
Court at the time ofthe hearing.
Should you have any questions conceming this matter, please do not hesitate
to contact our office.
Very traly,
BERRY & BLOCK, LLP
Cc: client
2150 Ktver Plaza Drive, Suite 415 Sacramento, CA 95833

tel: 916 564-2000 \fax: 916-564-2024 \ toll free: 877-564-2770
web: www.herryhlock.cotn
ExV\\V)\V ^
mm W^
BERRY & BLOCK LLP

ATTORNEYS AT LAW
September 30, 2010
VL4 E-MAIL AND FACSIMILE (310) 394-4477

Mark D. Nielson, Esq.
Cislo & Thomas LLP
1333 2"'' Street, Suite 500
Santa Monica, CA 90401-4110
Re: Design Furnishings, Inc. v. Zen Path, LLC

CaseNo. 34-201034-00088443
Dear Mr. Nielson:
Please be advised that we will be appearing ex parte tomonow aftemoon on

an application for order to show cause and for temporary restraining order preventing
Zen Path, LLC from submitting further fraudulent claims that Design Fumishings,
Inc. is infringing on its copyright, trademark, patent, and/or other intellectual property
rights to eBay. Your client's malicious and unlawful actions have caused, and
continue to cause, my client to suffer irreparable harm.
The ex parte hearing is scheduled for Friday, October 1, 2010, at 1:45 p.m. in
Department 54 of the Superior Court, County of Sacramento, located at 800 9th
Street, Sacramento, CA 95814. Please advise whether you or anyone else on your
behalf intends to appear and oppose our client's application so that we may advise the
Court at the time ofthe hearing.
Should you have any questions conceming this matter, please do not hesitate
to contact our office.
Very truly,
BERRY & BLOCK, LLP
Cc: client
2150 Rxver Plaza Dnve, Suite 415 Sacramento, CA 95833

tel: 916-564-2000 \ fax: 916-564-2024 \ toll free: 877-564-2770
web: www.berryblock.com
Wendy Grimm
From: SBSFAxService@berryblock com
Sent: Thursday, September 30, 2010 9 45 AM
To: Wendy Gnmm
Subject: Fax Design Furnishings, Inc v Zen Path, LLC was successfully sent to Mark D Nielson, Esq
at+1 (310)394-4477
Attachments: Fax Tif
Fax.Tif (70 KB)
Fax Design Furnishings, Inc. Zen Path, LLC was successfully sent to Mark D. Nielson,
Esq. at +1 (310) 394-4477.
Fax submitted: 9:43:05 AM
To server; BBKING2
Transmission started: 9:43:06 AM
Transmission end:- 9:44:40 AM
Number of retries: 0
Number of pages: 2

Design Furnishings V Zen Path Complaint

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Case 2:10-cv-02765-WBS-GGH Document 1-1 Filed 10/13/10 Page 1 of 41

1 BRIAN CRONE, State Bar No. 191731 pjj py^

18 NATURE OF THE ACTION

19 1. Plaintiff Design Furnishings, Inc. ("DFI" or "Plaintiff) sells furniture, including

23 rights. Defendant's misrepresentations caused Plaintiff to be unable to sell any of its

26 interference with its business

7 principal place of business in Las Vegas, Nevada.

14 proximately caused by such Defendants.

18 with the permission and consent of his/her/its co-Defendants.

26 the Defendants alone, it would sanction a fraud or promote an injustice.

1 JURISDICTION AND VENUE

9 the State ofCalifomia, County of Sacramento.

12 9. Plaintiff repeats, re-alleges, and incorporates the allegations set forth in

13 Paragraphs 1 through 8, inclusive.

16 including through eBay.

21 order from the same factory.

24 with any particular designer, person, and/or entity.

5 potential purchasers to bid on or purchase the product.

8 pictures or that advertise unauthorized copies of copyrighted material. {Hendrickson v eBay,

13 expeditiously to remove material that is claimed to be infringing upon receiving a "notice of

15 notice of claimed infringement are spelled out in 17 U.S.C. § 512(c)(3)

20 mistake or misidenfification ofthe material." {Ibid § 512(g)(3).) An ISP continues to enjoy

6 intellectual property rights of someone it represents.

7 19. When a VeRO member submits a notice of claimed infringement regarding a

10 member's honesty that a particular auction is infringing.

22 eBay informed Defendant that if it received a notice of claimed infringement regarding a

24 at the VeRO member's request.

28 including copyrights belonging to Defendant. Defendant continues to submit notices of claimed

9 25. None of Plainfiffs lisfings contained any copyrighted information belonging to

12 causing harm to Plainfiff.

13 26. As a result of Defendant's misrepresentations to eBay, Plaintiff had

15 sale. Thenumber of terminated auctions continues to grow each day.

17 are reinstated by eBay.

20 FIRST CLAIM FOR RELIEF

21 MISREPRESENTATION OF COPYRIGHT INFRINGEMENT UNDER THE DMCA, 17

24 Paragraphs 1 through 28, inclusive.

25 30. By submitting notices of claimed infringement to eBay regarding Plaintiffs

27 auctions infringed upon Defendant's copyright.

3 associated with this suit pursuant to 17 U.S.C. § 505.

4 SECOND CLAIM FOR RELIEF

5 TORTIOUS INTERFERENCE WITH CONTRACT

7 Paragraphs 1 through 32, inclusive.

10 agreed to purchase Plaintiffs merchandise.

12 37. Defendant intentionally filed false notices of claimed infringement to dismpt

18 buy its products to terminate their contracts with Plaintiff.

23 Plaintiff to an award of punitive damages.

24 THIRD CLAIM FOR RELIEF

25 TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

27 Paragraphs 1 through 41, inclusive.

2 economic benefit to Plaintiff.

5 Plaintiffs merchandise from ongoing and/or future auctions

8 Plaintiffs business activity on eBay.

10 disrupt Plaintiffs prospective economic advantage so as to prevent Plaintiff from completing

14 infringement against Plaintiff.

17 constituted defamation per se.

19 future economic benefits by causing lost sales.

21 Plaintiff to an award of punitive damages.

22 FOURTH CLAIM FOR RELIEF

23 UNFAIR, DECEPTIVE, AND FRAUDULENT BUSINESS PRACTICES

24 50. Plaintiff incorporates by reference paragraphs 1 through 49 above as though fully

25 set forth herein

5 according to proof at trial. Defendants are obligated to make restitution to Plaintiff