Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA736919
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`Filing date:
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`03/30/2016
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`91221453
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`Defendant
`Tegol, Inc.
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`GREGORY KENYOTA
`PATEL & ALMEIDA PC
`16830 VENTURA BLVD , SUITE 360
`ENCINO, CA 91436
`UNITED STATES
`gregory@paiplaw.com, alex@paiplaw.com, inbox@paiplaw.com,
`paulo@paiplaw.com
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`Reply in Support of Motion
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`Gregory Kenyota
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`gregory@paiplaw.com
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`/Gregory Kenyota/
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`03/30/2016
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`REBEL MOTORCYCLE BOOTS_Reply in Support of Motion and Opposition to
`Motion.pdf(1494594 bytes )
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`Proceeding
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`Party
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`Correspondence
`Address
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`JAFRUM INTERNATIONAL INC.
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` Opposer,
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`TEGOL, INC.,
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`Applicant.
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`Opposition No. 91221453
`Serial No. 86/145,216
`Mark: REBEL MOTORCYCLE BOOTS
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`APPLICANT’S REPLY IN SUPPORT OF MOTION TO SUSPEND AND
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`OPPOSITION TO CROSS MOTION FOR SANCTIONS
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`Applicant, TEGOL, INC., ("Applicant"), hereby submits this (1) Reply in support of its
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`Motion to Suspend Pending Civil Litigation, filed on March 9, 2016 (“Motion to Suspend”); and
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`(2) Opposition to Opposer’s Cross Motion for Sanctions filed on March 15, 2016 (“Motion for
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`Sanctions”). Opposer, JAFRUM INTERNATIONAL INC. ("Opposer"), first argues that
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`Applicant's Motion should be denied because Opposer “has a final judgment in the Federal
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`District Court in California against Helmet Venture, Inc., and vacating that judgment will be
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`difficult.” TTABVUE Dkt. # 10. Opposer further requests sanctions should be imposed on
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`Applicant due to Applicant’s failure to comply with a Board order regarding discovery. See id.
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`FACTUAL BACKGROUND
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`Applicant and Opposer are parties in Civil Case No. 2:14-CV-01307, HELMET
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`VENTURES, INC. v. JARFUM INTERNATIONAL, INC., filed in the United States District
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`Court for the Central District of California (“Civil Action”). See TTABVUE Dkt. # 9. The
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`procedural background relevant to this proceeding is summarized in Applicant’s Motion to
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`Suspend. See id. However, there has been a very recent development in the Civil Action which
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`bears directly on these motions.
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`Specifically, on March 29, 2016, the Motion to Set Aside the Civil Action was dismissed.
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`A copy of district court’s order is attached hereto as Exhibit A. Today, on March 30, 2016,
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`Applicant filed a Notice of Appeal in the United States Court of Appeals for the Ninth Circuit,
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`appealing the district court’s dismissal. A copy of Applicant’s Notice of Appeal is attached
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`hereto as Exhibit B. Thus, the Civil Action is on appeal and still pending.
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`LEGAL STANDARD
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`It is the policy of the Board to suspend proceedings pursuant to Trademark Rule 2.117(a),
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`37 C.F.R. §2.117(a), when the parties are involved in a civil action that may be dispositive of or
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`have a bearing on the Board proceeding. See e.g. Dallas C. Brown Jr. v. Courtney L. Bishop,
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`Cancellation No. 92050965, 2010 WL 2946844, at *3 (TTAB 2010); George Vais v. Vais Arms,
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`Inc., Opposition No. 91154485, 2004 WL 390926, *1 (TTAB 2004) (suspending the opposition
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`proceeding because it is the policy of the Board to do so when a civil action is pending, despite
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`opposition from the other side). Suspension of a Board proceeding is appropriate even if the
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`civil case may not be dispositive of the Board proceeding, so long as the ruling will have a
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`bearing on the rights of the parties in the Board proceeding. See Society of Mexican American,
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`Opposition No. 121723, 2002 WL 31488947, at *4 (TTAB 2002).
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`ARGUMENT
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`1. The Board Should Suspend this Proceeding Pending the Disposition of the Civil
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`Action Currently on Appeal
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`Applicant and Opposer are parties in a pending civil action that has a bearing on this case
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`2
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`and the case should therefore be suspended. See 37 C.F.R. §2.117(a). While the Civil Action
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`was initially dismissed for lack of prosecution, Applicant has appealed the district court’s
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`dismissal in the Ninth Circuit and the parties are awaiting a final decision. The Board should not
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`accept Opposer’s argument that suspension is inappropriate because re-opening the case “will be
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`difficult” as the case must be suspended if there is a pending Civil Action. One party’s
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`likelihood of success is irrelevant to the question of suspension. Simply put, the Civil Action is
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`pending because a Notice of Appeal is currently before the Ninth Circuit. If the Ninth Circuit
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`reverses the district court’s dismissal, the district court must re-open the case and turn to the
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`merits of the claims and defenses that bear on this proceeding.
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`Accordingly, in the interest of judicial economy and to prevent potentially inconsistent
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`rulings on the same issues presented in both the Civil Action and the opposition proceeding, and
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`because the decisions of the Ninth Circuit and any potential decisions of the district court issued
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`thereafter will be binding on the Board, Applicant respectfully requests that the Board grant
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`Applicant’s Motion to Suspend pending the disposition of the Civil Action, including the appeal.
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`2. The Cross Motion for Sanctions Should Be Denied or Deferred in Favor of
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`Suspension
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`Despite the pendency of the Civil Action presenting the same issues in this case, Opposer
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`argues the Board should sanction Applicant for failing to respond to a Board order regarding
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`discovery. As stated above, when a district court action is pending, which involves the exact
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`same issues, the Board should suspend the case pending the disposition of the civil action. See 37
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`C.F.R. §2.117(a). Applicant has already filed a Motion to Suspend this proceeding based on the
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`pendency of a district court action. See TTABVUE Dkt. # 9. Opposer’s Motion for Sanctions is
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`inappropriate as the proceeding should be suspended and decision on the Motion for Sanctions
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`3
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`should be denied or deferred pending disposition of the Civil Action.
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`3. The Motion for Sanctions Should Be Denied Because Applicant’s Failure to Comply
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`with the Motion to Compel Was Inadvertent and Not Willful
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`In its Motion for Sanctions, Opposer requests “an order barring Applicant from providing
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`any evidence (i) contrary to that asserted in the Notice of Opposition; or (ii) that would relate to
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`the discovery requested by Opposer.”1 TTABVUE Dkt. # 10. Applicant recognizes the Board
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`has the discretion to impose sanctions based on Applicant’s failure to comply with the Board’s
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`order compelling discovery. See 37 CFR § 2.120(g). However, the harsh sanctions Opposer
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`requests would be inappropriate in this case because Applicant’s failure to comply with the order
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`was inadvertent and not willful.
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`Specifically, Applicant’s prior counsel, Evan Anderson (“Prior Counsel”), failed to keep
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`Applicant apprised about significant developments in this case regarding discovery. Applicant
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`was not aware of the outstanding discovery requests or the Board’s order compelling responses.
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`Furthermore, Applicant has filed a malpractice lawsuit against Prior Counsel. A copy of
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`Applicant’s Complaint against Prior Counsel filed in a California state court is attached hereto as
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`Exhibit C. Although Applicant did not comply with the Board’s order, sanctions would be
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`inappropriate because Applicant’s non-compliance was inadvertent and not willful; and such
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`sanctions would prevent the full and fair consideration of the arguments and evidence at trial.
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`Based on the foregoing, Applicant respectfully requests that the Board deny or defer
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`decision on Opposer’s Motion for Sanctions pending the disposition of the Civil Action. Further,
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`Applicant requests suspension of this case pending disposition of the Civil Action.
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`1 Opposer also makes reference to “summary judgment” in its Motion for Sanctions, but does not affirmatively
`request this extremely harsh remedy.
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`4
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`Dated: March 30, 2016
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`Respectfully Submitted,
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`By___/Gregory Kenyota/____
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`Gregory Kenyota
`Paulo A. de Almeida
`Alex D. Patel
`Patel & Almeida, P.C.
`16830 Ventura Blvd., Suite 360
`Encino, CA 91436
`(818) 380-1900
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`Attorneys for Applicant,
`Tegol, Inc.
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`5
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`PROOF OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing APPLICANT’S REPLY IN
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`SUPPORT OF MOTION TO SUSPEND AND OPPOSITION TO CROSS MOTION FOR
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`SANCTIONS has been served on Thomas L. Adams, counsel for Petitioner, on March 30, 2016,
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`via First Class U.S. Mail, postage prepaid to:
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`Thomas L. Adams
`120 Eagle Rock Avenue, STE 130
`East Hanover, NJ 07936
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`By: __/Gregory Kenyota/_______
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`Gregory Kenyota
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`Exhibit A
`Exhibit A
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`Case 2:14-cv-01307-RGK-E Document 87 Filed 03/28/16 Page 1 of 3 Page ID #:500
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES - GENERAL
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`Case No.
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`14-CV-01307 RGK (E)
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`Date March 28, 2016
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`Title
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`Helmet Venture, Inc. v. Jafrum International
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`Present: The
`Honorable
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`R. GARY KLAUSNER, U.S. DISTRICT JUDGE
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`Sharon L. Williams (Not Present)
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`Not Reported
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`Deputy Clerk
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`Court Reporter / Recorder
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`N/A
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`Tape No.
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`Attorneys Present for Plaintiffs:
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`Attorneys Present for Defendants:
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`Not Present
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`Not Present
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`Proceedings:
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`(IN CHAMBERS) Order re: Motion to Set Aside Judgement (DE 80)
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`I.
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`INTRODUCTION
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`On February 21, 2014, Helmet Venture Inc. (“Plaintiff”) filed a complaint against Jafrum
`International, Inc. (“Defendant”), alleging the following claims: (1) Federal Trademark Infringement;
`(2) False Designation of Origin; (3) Federal Trademark Dilution; (4) Common Law Trade Name
`Infringement; (5) Unfair Competition; (6) Common Law Unfair Competition; (7) State Trademark
`Dilution. (Dkt. 2.)
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`On July 6, 2015, the Court deemed the case abandoned and dismissed the matter for lack of
`prosecution. On August 24, 2015, the Court granted Defendant’s Motion for Attorney Fees. On
`February 24, 2015, Plaintiff filed a Motion to Set Aside Entered Consolidated Judgment Ordering
`Dismissal and Attorney Fees pursuant to Federal Rules of Civil Procedure Rule 60(b).
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`For the following reasons, the Court DENIES Plaintiff’s Motion for Relief from Judgement.
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`II. STATEMENT OF FACTS
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`On February 21, 2014, Plaintiff filed its Complaint. On June 25, 2014, Plaintiff had still not served
`process on Defendant, prompting the Court to issue an Order to Show Cause (“OSC”) why the case
`should not be dismissed for failure to prosecute. (Dkt. 12.) Plaintiff thereafter served process on
`Defendant. (Dkt. 13.)
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`On November 3, 2014, the Court held a scheduling conference, which Plaintiff’s counsel did not
`attend. Once again, the Court issued an OSC why the case should not be dismissed for lack of
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`CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 3
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`Case 2:14-cv-01307-RGK-E Document 87 Filed 03/28/16 Page 2 of 3 Page ID #:501
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`prosecution. (Dkt. 36.) On November 17, 2014, both parties attended a scheduling conference, although
`Plaintiff’s counsel arrived late. The Court set a Pre-Trial Conference date for July 6, 2015 and a Trial
`date set for July 21, 2015. (Dkt. 39.)
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`Between the scheduling conference (November 17, 2014) and the Pre-Trial Conference (July 6,
`2015), Plaintiff did not take a single action to move the case forward. Moreover, Plaintiff failed to
`appear at the Pre-Trial Conference held on July 6, 2015. Consequently, the Court deemed the case
`abandoned and dismissed the matter for lack of prosecution. (Dkt. 44.) On August 24, 2015, the Court
`granted Defendant’s Motion for Attorney Fees.
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`On January 25, 2015, Plaintiff was served with a Debtor’s Exam Notice for failure to pay
`Defendant’s attorney fees. (Rulsky Decl. ¶ 1, ECF No. 80.) Plaintiff then retained new counsel, who
`investigated the case and informed Plaintiff that its case had been dismissed and that Defendant was
`awarded attorney fees. (Rulsky Decl. ¶ 2, ECF No. 80.) Plaintiff was unaware of the dismissal for six
`months. (Pl.’s Mot. To Am. J. ¶ 1, ECF No. 80.) Plaintiff alleges that during the six months, Anderson
`lied to Plaintiff by saying the case was continuing and discovery was in progress. (Rulsky Decl. ¶ 1,
`ECF No. 80.) Anderson then began to avoid Plaintiff’s calls and not return them. (Pl.’s Mot. To Am. J.
`¶ 1, ECF No. 80.)
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`III.
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`JUDICIAL STANDARD
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`Under Rule 60(b), the court may, upon motion of a party, withdraw or amend a final judgment or
`order. Kirby Forest Indus. v. United States, 467 U.S. 1, 18 (1984). Relief may be based upon mistake,
`inadvertence, surprise, excusable neglect, or for “any other reason justifying relief.” Fed. R. Civ. P.
`60(b)(1), (6). Only final, appealable judgments and orders fall within the purview of Rule 60(b). United
`States v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000).
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`VI.
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`DISCUSSION
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`Plaintiff argues judgement should be set aside pursuant to Rule 60(b)(1) and Rule 60(b)(6) due to:
`(1) Surprise; (2) its former counsel’s malpractice and misrepresentation concerning the status of its case;
`and (3) the fact that Plaintiff’s claims are meritorious. The Court disagrees.
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`“As a general rule, parties are bound by the acts of their lawyers, and alleged attorney malpractice
`does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1).” Casey v. Albertson’s
`Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). Further, “[f]or purposes of subsection (b)(1), parties should
`be bound by and accountable for the deliberate actions of themselves and their chosen counsel. This
`includes not only an innocent, albeit careless or negligent, attorney mistake, but also intentional attorney
`misconduct. Such mistakes are more appropriately addressed through malpractice claims.” Latshaw v.
`Trainer Wortham & Co., Inc., 452 F.3d 1097, 1101 (9th Cir. 2006). Furthermore, “Judgments are not
`often set aside under Rule 60(b)(6). Rather, Rule 60(b)(6) is “used sparingly as an equitable remedy to
`prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party
`from taking timely action to prevent or correct an erroneous judgment.” Latshaw, 452 F.3d at 1103.
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`Plaintiff alleges that it was “surprised” by the actions of its former counsel and thus should be
`granted relief. (Pl.’s Mot. To Am. J. 7:26-27, ECF No. 80.) Plaintiff’s reliance on surprise is misplaced
`because surprise generally involves conduct “contrary to the party's understanding or agreement with the
`adversary[.]” See 47 Am. Jur. 2d Judgments § 688. In Ha v. Guiness, 2009 WL 462803 at * 1 (N.D. Cal.
`Feb. 23, 2009), the court noted that surprise “occurs when something contrary to the party’s
`understanding or agreement with the adversary happens.” (emphasis added). Surprise may also be found
`in “circumstances where there is some reason for confusion or misunderstanding by the parties.” In re
`Walker, 332 B.R. 820, 829 (Bankr. D. Nev. 2005) (emphasis added). Plaintiff does not allege any
`CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 3
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`

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`Case 2:14-cv-01307-RGK-E Document 87 Filed 03/28/16 Page 3 of 3 Page ID #:502
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`surprise between the parties. Instead, Plaintiff alleges its counsel deliberately misled it about the status
`of its case. Allowing attorney malpractice to constitute surprise would greatly undermine the Ninth
`Circuit’s general rule that attorney malpractice is not grounds for relief under Rule 60(b)(1).
`Accordingly the court finds surprise is inappropriate for the relief Plaintiff seeks.
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`As to grounds for relief under Rule 60(b)(6), Plaintiff alleges no further facts or legal arguments as
`to why attorney malpractice is an “extraordinary circumstance” for which relief should be granted.
`Plaintiff is a corporation, and should have the sophistication to know that it must monitor the status of
`its case. Plaintiff should have become suspicious of its counsel’s misrepresentations during the six
`months the case was dismissed and when it received the Debtor’s Exam Notice. During this time,
`Plaintiff’s counsel represented that the case was pending and discovery was in progress. (Rulsky Decl. ¶
`1, ECF No. 80.) Plaintiff should have been alerted when its counsel failed to conduct any depositions or
`request any documentation from Plaintiff. (Pl.’s Mot. To Am. J. ¶ 5, ECF No. 80.) Plaintiff has failed to
`demonstrate that its former counsel’s malpractice is an “extraordinary circumstance” for which relief
`should be granted.
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`Finally, Plaintiff argues it has a meritorious claim. The Court notes the merits of an action are
`not a factor in the Ninth Circuit’s analysis of a Rule 60(b) motion. See Lima v. Wachovia Mortg. Corp.,
`No. C09-04798TEH, 2010 WL 1223234 at *3 (N.D. Cal. Mar. 25, 2010). The concurring opinion in
`Alonzo v. Cnty of Riverside, No. 06–55172, 263 Fed. Appx. 619, 620 (9th Cir. 2008) (Farris, J.,
`concurring), recognized that the “Ninth Circuit does not yet require consideration of the presence or
`absence of a meritorious claim or defense.” Thus, the Court does not analyze whether Plaintiff’s claim
`is, in fact, meritorious.
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`VI.
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`CONCLUSION
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`For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Relief from Judgement.
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`IT IS SO ORDERED.
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`:
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`Initials of Preparer
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`CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 3
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`

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`Exhibit B
`Exhibit B
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`Jerry Rulsky, Esq. (SBN 296154)
`9454 Wilshire Blvd., Penthouse Suite
`Beverly Hills, CA 90212
`Telephone: (888) 670-5530
`Fax: (888) 517-4524
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`Attorney for: PLAINTIFF
`Helmet Venture, INC.
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`LOS ANGELES DIVISION
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`CASE NO.: 2:14-cv-01307
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`PLAINTIFF’S NOTICE OF APPEAL OF
`COURT’S ORDER DENYING
`PLAINTIFF’S RULE 60(b) MOTION
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`) ) ) ) ) ) ) ) ) ) ) ) ) )
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`HELMET VENTURE,INC.
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`Plaintiff,
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`v.
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`JAFRUM INTERNATIONAL,
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`Defendant.
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`____________________________
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`Notice is hereby given that Helmet Venture, INC., Plaintiff in the above named case, hereby
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`appeals from the United States District Court of its order of May 28, 2016, denying Plaintiff’s
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`Rule 60(b) Motion, to the Court of Appeals for the Ninth Circuit. Defendant’s counsels are Eric
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`M. Kennedy and Leilani E. Livingston, Payne & Fears, LLP, 801 S. Figueroa Street, Suite 1150,
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`Los Angeles, California 90017.
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`Dated: March 30 ,2016
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`By: /s/ Jerry Rulsky
`JERRY RULSKY
`Counsel for Helmet Venture, INC
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`REPLY - NOTICE OF APPEAL.wpd
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`PROOF OF SERVICE OF DOCUMENT
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`I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business
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`address is:
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`9454 Wilshire Blvd., PH 9
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`Beverly Hills, CA 90212
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`A true and correct copy of the foregoing document entitled (specify): PLAINTIFF’S NOTICE OF APPEAL
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`OF COURT’S ORDER DENYING PLAINTIFF’S RULE 60(b) MOTION will be served or was
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`served (a) on the judge in chambers in the form and manner required.
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`1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to
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`controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink
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`to the document. On (date) March 30, 2016, I checked the CM/ECF docket for this case and determined that
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`the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email
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`addresses stated below:
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`SEE ATTACHED LIST
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`Eric M. Kennedy, Esq.
`Leilani Jones, Esq.
`Payne & Fears
`4 Park plaza, Suite 1100
`Irvine, CA 92614
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`Email: llj@paynefears.com
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`Dated: March 30 ,2016
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`By: /s/ Jerry Rulsky
`JERRY RULSKY
`Counsel for Helmet Venture, INC
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`REPLY - NOTICE OF APPEAL.wpd
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`Exhibit C
`Exhibit C
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`

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`.
`V
`I/.—\_‘
`I
`I/.
`I
`_ase 2:14—cv—O1307—RGK—E\‘ Document 80-5 Filed 02/24/16 |3\age 8 of 14 Page ID #.443
`Case 2:14-cv-01307-RGK-E Document 80-5 Filed 02/24/16 Page 8 of 14 Page ID #:443
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`Jerry Rulsky, Es . SSBN 296154)
`9454 Wilshire B V ., Penthouse Suite
`Beverly Hills, CA 90212
`Telephone: (888) 670~5530
`Fax: (888)517-4524
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`Attorney for: PLAINTIFF
`Helmet Venture, INC.
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`CONFORMED
`ORIGINAL FIEEO Y
`3 Uperior Court of Catifo nia
`COUMV Of LOS Ann-mg
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`FEB:-222016
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`Shem H. flatter, téxecutiue Lmic r/mm
`ml, Judi l.,ara,Depu1y
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`IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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`6
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`9
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`FOR THE COUNTY OF LOS ANGELES
`g Case No‘;
`)
`) COMPLAINT FOR DAMAGES FOR:
`g
`1) LEGAL MALPRACTICE
`‘
`2) BREACH OF FIDUCIARY DUTY
`5 3) FRAUD
`)
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`Helmet Venture,
`Plaintiff,
`”
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`v-
`«
`Evan G. Anderson an individual, and Brand
`Ventures IP LAW, and DOES 1 through 30,
`inclusive.
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`*JURY TRIAL DEMAND
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`I Defendants.
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`
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`Plaintiff, Helmet Venture, INC., alleges:
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`INTRODUCTION
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`1.
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`This is an action brought by Plaintiff against its former attorney. During the
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`course of Plaintiffs representation in a trademark infringement lawsuit, the attorney negligently
`and intentionally failed to prosecute the case for which he was paid $69,770.‘ Defendant
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`neglected to appear on designated court dates, failed to pre-notify the court of his intended
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`absence, failed to explain his absence, and failed to submit required filings, all of which
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`culminated in the trial court issuing an order on July 6, 2015, dismissing the Plaintiffs case
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`‘The extent of Defendant’s work was the pre-complaint research of the trademark which entailed approximately
`$5000 of fees, the filing of a complaint, and the filing of a response to a minimal Rule 12(b) motion regarding the
`standing of Plaintiff. The l2(b) motion was denied upon a showing that there was a transfer of the trademark after
`the infringement occurred.
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`.
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`Page 1
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`COMPLAINT FOR DAMAGES
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`Case 2:14-cv-01307-RGK-E Document 80-5 Filed 02/24/16 Page 9 of 14 Page ID #:444
`Case 2:14—cv—O1307—RGK E Document 80-5 Filed 02/24/16 Page 9 of 14 Page ID #.444
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`.—..
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`because of Defendant’s neglect and failure to appear for court hearings. See EXHIBIT 1 (Court
`Order of July 6, 2015). Defendant did not notify Plaintiff that its case was dismissed and
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`continued to lie and tell Plaintiff the case was ongoing.
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`It was only after Plaintiffs phone calis‘
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`were not returned and Plaintiff secured the services of new counsel did Plaintiff discover the
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`case had been dismissed over six months (6) months ago. The court docket attests to the fact
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`that no work was done by Defendant after the said dismissal to correct his neglect in the
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`underlying matter. Additionally, Defendant charged the credit card Plaintiff had on file for at
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`least five thousand dollars ($5,000), sums never authorized by Plaintiff.
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`Additionally, Plaintiff is a defendant in a North Carolina Western District Court case
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`(3:14-cv-000566) connected to the underlying trademark infringement case referenced herein.
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`Plaintiff hired Defendants to represent it in that matter as well. As a result of Defendants’
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`negligence and fraud, the Court in North Carolina granted partial summary judgment to the
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`plaintiff in that case based on Defendants’ failure to file a response to the summary judgment
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`motion, and because of the outcome before the District Court in Los Angeles, the subject ofthis
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`lawsuit as well.
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`PARTIES
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`2.
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`Plaintiff HELMET VENTURE, INC. ("HELMET VENTURE” or Plaintiff)
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`is,
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`and at all
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`times mentioned in this complaint was, a resident of Los Angeles, California,
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`incorporated in the State of California.
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`3.
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`Defendant BRAND VENTURES IP LAW (“BRAND”) is and at all times herein
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`mentioned an entity duly organized and existing under the laws of California with its principal
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`place of business in Los Angeles, California, and a DBA for Evan G. Anderson.
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`4.
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`Defendant EVAN G. ANDERSON ("ANDERSON”) is an individual and an
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`attorney licensed to practice law in California with an office in Los Angeles, California.
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`A
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`Plaintiff is informed and believes that ANDERSON is the principal shareholder of BRAND and
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`was acting within the scope of such ownership, and/or employment and agency.
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`5.
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`Plaintiff does not know the true names of defendants DOES 1
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`through 30,
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`inclusive, and therefore sues them by those fictitious names. Plaintiff is informed and believes ‘
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`Page 2
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`COMPLMNTFORDAMAGES
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`’\
`I
`I
`Case 2:14—cv—O1307—RGK—E: Document 80-5 Filed 02/24/16 Qge 10 of 14 Page ID #.445
`Case 2:14-cv-01307-RGK-E Document 80-5 Filed 02/24/16 Page 10 of 14 Page ID #:445
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`that DOE defendants were and now are attorneys at law, duly admitted and licensed to practice
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`law in the State of California, and doing business in Los Angeles County California, and were
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`the agents and/or employees of each of the Defendants, and in doing the things herein alleged,
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`were acting within the course and scope of said agency and/or employment, in that the actions .
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`of each of the Defendants herein alleged were authorized, approved and/or ratified by each of
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`the other Defendants as principals and/or employers.
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`FIRST CAUSE OF ACTION
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`(Legal Malpractice Against All Defendants)
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`6.
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`The‘ allegations set
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`forth in Paragraphs
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`1
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`through 5 are re-alleged and
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`incorporated herein by reference.
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`Filing and Prosecution of the Trademark Infringement Lawsuit
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`7.
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`Plaintiff HELMET VENTURE filed a law suit against Jafrum International on
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`February 21, 2014, for trademark infringement. Plaintiff, alleged that Jafrum had intentionally
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`violated HELMET VENTURE’s trademark by duplicating its product and selling it as its own.
`Plaintiff HELMET VENTURE had obtained a trademark for its product and never authorized
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`Jafrum International to use it. Notwithstanding this, Jafrum International brazenly and openly
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`, infringed upon Plaintiff HELMET VENTURE’s trademark. As a result, HELMET VENTURE
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`lost hundreds of thousands of dollars in sales as well as good will from its customers. Because
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`of the trademark infringement HELMET VENTURE’s business began to deteriorate and
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`incurred heavy losses.
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`8.
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`Plaintiff HELMET VENTURE retained the services of Defendant because of his
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`in intellectual property matters including trademark
`representation of being an expert
`infringement lawsuits. After the filing of the lawsuit, Defendant ANDERSON failed to file
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`proof of service. The court issued an OSC on June 25, 2014, and Defendant ANDERSON
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`subsequently cured the deficiency. On November 3, 2014, Defendant ANDERSON failed to
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`attend a scheduling conference set by the court. Again an OSC was issued by the court. The
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`court allowed Defendant ANDERSON to appear at a re-calendared scheduling conference on
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`Page 3
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`COMPLAINT FOR DAMAGES
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`

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`"N
`C sé 2:14-cv—O13O7-RGKA‘W
`Case 2:14-cv-01307-RGK-E Document 80-5 Filed 02/24/16 Page 11 of 14 Page ID #:446
`E Document 80-5 Filed 02/24/16 Page 11 of 14 Page ID #:446
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`November 17, 2014. Defendant ANDERSON appeared late and was reprimanded by the court.
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`At that scheduling conference the court set a Pre—Trial Conference for July 6, 2015, and a trial
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`date of July 21, 2015. See EXHIBIT 2 (Court Order - Consolidated judgment of December 15,
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`2015). As a result of Defendant ANDERSON’s negligence Plaintiff HELMET VENTURE was
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`ordered to pay $42,831.00 for Jafrum Internationalis attorney fees.
`if
`9.
`Between November 17, 2014 (scheduling conference), and the Pre-Trial
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`Conference set for July 6, 2015, Defendant ANDERSON did not engage in any action to move
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`the case forward. This inaction included a failure to initiate discovery, a failure to designate an
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`expert, and a failure to file pre-trial motions. Additionally, Defendant ANDERSON failed to
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`appear for the Pre-Trial Conference on July 6, 2015. At this point, the court dismissed the
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`matter for lack of prosecution and entered an order of dismissal.
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`10.
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`Plaintiff HELMET VENTURE had a signed retainer agreement with Defendant
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`ANDERSON and was charged an hourly rate for purported work done.
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`Defendant
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`ANDERSON warranted to Plaintiff HELMET VENTURE that he would represent it vigorously
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`and to the full extent of the law. Plaintiff HELMET VENTURE at this point had paid
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`Defendant ANDERSON $69,770 for work that was never done, with the exception of filing the
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`complaint and responding to a 12(b) motion filed by Jafrurn International which was dismissed.
`At no time did Defendant ANDERSON ever tell Plaintiff HELMET VENTURE that he failed
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`to prosecute the matter and that the case was dismissed because of his inaction.
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`11.
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`Defendant ANDERSON continued to tell Plaintiff HELMET VENTURE that the
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`matter was continuing and demanded and received additional payments for fees that were never
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`earned and work never done. Defendant ANDERSON did not even file a Rule 60(b) motion _
`seeking reopening of the matter based on excusable neglect as provided for in Rule 60(b).
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`Instead, Defendant ANDERSON avoided Plaintiff’ s calls and when he did speak with a
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`representative of Plaintiff HELMET VENTURE it was only to lie about the “continuing” case
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`and demand more money. All in all, Plaintiff HELMET VENTURE expended in excess of one-
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`hundred thousand dollars ($100,000) paid to Defendant ANDERSON for fees and costs never
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`incurred. Additionally, Plaintiff is a defendant in a North Carolina Western District Court case
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`Page 4
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`COMPLAINT FOR DAMAGES
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`_
`"\
`’\
`Case 2:14-cv-01307-RGK-E Document 80-5 Filed 02/24/16 Page 12 of 14 Page ID #:447
`Document 80-5 Filed 02/24/16 Page 12 of 14 Page ID #:447
`‘Case 2:14-CV-O13O7-RGK-E-
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`(T3314-cv-000566) connected to the underlying trademark infringement case referenced herein.‘
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`As part of the retainer agreement, Defendants represented Plaintiff in that matter as well. As a
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`result of Defendants’ negligence and fraud committed by the Defendants, the Court in North
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`Carolina granted partial summary judgment to the plaintiff in that case based on Defendants’
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`failure to file a response to the summary judgment motion filed by plaintiff, and because of the
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`outcome before the District Court in Los Angeles, the subject of this lawsuit as well. As a‘
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`result, Plaintiff now has a judgment against it denying its trademark ownership.
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`SECOND CAUSE OF ACTION
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`(Breach of Fiduciary Duty against all Defendants)
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`12.
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`The allegations set
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`forth in Paragraphs
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`1
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`through 11 are re-alleged and
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`incorporated herein by reference.
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`13.
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`Defendants, and each of them, owed Plaintiff HELMET VENTURE a fiduciary
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`duty to act at all times in good faith and in its best interests, and had a duty, among other things,
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`to perform the services for which they were retained with reasonable care and skill, to act in
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`Plaintiff HELMET VENTURE’s highest and best interests at all times, and to not expose it to
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`' any unnecessary risk or peril. This fiduciary and confidential relationship was never repudiated
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`by Defendants at any time herein mentioned.
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`14.
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`Defendants, and each of them, breached their fiduciary duties and obligations to
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`Plaintiff by doing all of the acts and omissions as herein alleged.
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`15.
`Furthermore, in doing all of the above described acts and omissions constituting
`Defendants‘ breach of their fiduciary duties owed to Plaintiff HELMET VENTURE, sustained
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`damages including inability to secure a significant settlement or jury verdict in the lawsuit.
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`Additionally, Plaintiff has suffered grievous harm including, but not limited to, loss of income
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`’ and litigation expenses.
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`16.
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`The acts and omissions constituting breach of Defendants‘ fiduciary duties were
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`committed with oppression, fraud, malice, recklessness, and/o