“Averments of fraud must be accompanied by the who, what, when, where, 13 and how of the misconduct charged.” (internal quotations and citations omitted)
How later courts described this case
- “Averments of fraud must be accompanied by the who, what, when, where, 13 and how of the misconduct charged.” (internal quotations and citations omitted)
- plaintiff asserting claims for trademark 13 |/infringement cannot prevail without showing validity and infringement
- “The 7 elements of an unjust enrichment claim are the receipt of a benefit and the unjust 8 retention of the benefit at the expense of another.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 SUNPOWER CORPORATION, Case No.: 21-CV-375-CAB-MSB
11 Plaintiff,
ORDER GRANTING PLAINTIFF
12 v. SUNPOWER CORPORATION’S
MOTION TO DISMISS
13 SUNPOWER CALIFORNIA, LLC;
DEFENDANTS’ COUNTERCLAIMS
GREEN TECH SOLAR d/b/a Sunpower
14
California; and Benjamin Jackson,
15 [Doc. No. 21]
Defendants.
16
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18 On March 3, 2021, Plaintiff Sunpower Corporation (“Plaintiff”) filed a complaint
19 for trademark infringement and other related claims against Defendants Sunpower
20 California, LLC, Green Tech Solar d/b/a Sunpower California, and Benjamin Jackson
21 (“Defendants”). [Doc. No. 1.] On April 30, 2021, Defendants filed an Answer to the
22 Complaint and Counterclaims against Plaintiff. [Doc. No. 19.] On May 21, 2021,
23 Plaintiff filed a motion to dismiss the counterclaims. [Doc. No. 21.] On June 11, 2021,
24 Defendants filed an opposition to the motion. [Doc. No. 26.] On June 18, 2021, Plaintiff
25 filed a reply. [Doc. No. 27.] For the reasons set forth below, the motion to dismiss
26 Defendants’ counterclaims is GRANTED WITH LEAVE TO AMEND.
27 / / / / /
28 / / / / /
1 FACTUAL ALLEGATIONS OF COUNTERCLAIMS
2 Defendant LLCs were founded as early as 2014 by Ben Jackson as
3 marketing/consulting companies with the intent to market sun-solar power to
4 Southern California residents. [Doc. No. 19 at 8, ¶6.] Since Defendant LLCs’ creation,
5 Defendants have used their good reputation in the area to recommend and refer customers
6 to Plaintiff, Plaintiff’s dealers, and other installers. [Id. at 8, ¶7.]
7 Over that time period, Plaintiff and Defendants maintained a positive,
8 working relationship and collaborated on numerous projects together. [Id. at 8, ¶8.]
9 Defendants secured multiple celebrity endorsements for Plaintiff’s products, secured
10 hundreds of clients for Plaintiff, and generated significant revenue for Plaintiff. [Id. at 8,
11 ¶9.] Most notably, Defendants were responsible for Plaintiff’s relationship with the San
12 Diego Padres and the installation of Plaintiff’s solar panels at Petco Park, a project which
13 Defendants originated and helped facilitate with Plaintiff as well as Plaintiff’s largest
14 Commercial Dealer that Defendants selected to assist and install. [Id. at 8, ¶10.]
15 Defendants are a solar energy marketing and consulting company, and
16 have never manufactured, nor ever intended to manufacture solar panels or materials
17 to create, build, or install solar panels. [Id. at 9, ¶11.] Defendants have never competed,
18 nor ever intend to compete with Plaintiff in the field of solar panel manufacturing,
19 distribution, or installation, or interfere with distribution. [Id. at 9, ¶12.]
20 Despite the positive business relationship between Plaintiff and Defendants over
21 the years, Plaintiff has at various times interfered with Defendants’ business relationships
22 and contracts. [Id. at 9, ¶13.] For example, on information and belief, after organizing
23 and facilitating the project with the San Diego Padres, Plaintiff instructed the Padres
24 organization to stop working with Defendants and no longer involve Defendants in the
25 project at Petco Park. [Id. at 9, ¶14.] After Plaintiff instructed the San Diego Padres to
26 stop working with Defendants, Defendants were no longer involved in the project. [Id. at
27 9, ¶15.]
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1 On information and belief, Plaintiff interfered with Defendants’ business
2 relationship with Milholland Electric Inc. (“Milholland”) because Defendants did not
3 give Plaintiff control of its website domain, www.sunpowercalifornia.com, and
4 Milholland will no longer work with Defendants. [Id. at 9, ¶16.] On information and
5 belief, Plaintiff interfered with Defendants’ business relationship with Sullivan Solar
6 Power of California Inc. (“Sullivan”), and Sullivan will no longer work with Defendants.
7 [Id. at 9, ¶17.]
8 LEGAL STANDARD
9 A [cross] complaint will survive a motion to dismiss when it contains “sufficient
10 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
11 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
13 When considering a Rule 12(b)(6) motion, a court must “accept as true all allegations of
14 material fact and must construe those facts in the light most favorable to the
15 plaintiff[cross-complainant].” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000).
16 Although a [cross]complaint need not include “detailed factual allegations,” it must offer
17 “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
18 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a
19 legal conclusion “are not entitled to the assumption of truth.” Id. at 679. In other words, a
20 pleading that merely offers “labels and conclusions,” a “formulaic recitation of the
21 elements,” or “naked assertions” will not be sufficient to state a claim upon which relief
22 can be granted. Id. at 678 (citations and internal quotation marks omitted).
23 “When there are well-pleaded factual allegations, a court should assume their
24 veracity and then determine whether they plausibly give rise to an entitlement of relief.”
25 Id. at 679. Plaintiffs [cross-complainants] must allege “plausible grounds to infer” that
26 their claims rise “above the speculative level.” Twombly, 550 U.S. at 555. “Determining
27 whether a [cross] complaint states a plausible claim for relief” is a “context-specific task
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1 that requires the reviewing court to draw on its judicial experience and common sense.”
2 Iqbal, 556 U.S. at 679.
3 DISCUSSION
4 1. Intentional Interference (Count III).
5 A claim for intentional interference with prospective economic advantage requires
6 (1) an economic relationship between the plaintiff and a third party with the probability
7 of future economic benefit to the plaintiff, (2) defendant's knowledge of that relationship,
8 (3) defendant's intentional, independently wrongful act to disrupt the relationship, (4)
9 actual disruption, and (5) economic harm to the plaintiff. Marsh v. Anesthesia Serv. Med.
10 Group. Inc., 200 Cal.App.4th 480, 504 (2011) (citing Korea Supply v. Lockheed Martin
11 Corp., 29 Cal.4th 1134, 1153 (2003)).
12 Here, Defendants have not sufficiently alleged a claim for Intentional Interference.
13 First, Defendants have failed to sufficiently allege “an economic relationship” between
14 Defendants and any third party. Marsh, 200 Cal. App.4th at 504. Alleging that
15 Defendants “were responsible” for Plaintiff’s relationship with the Padres, or that
16 Defendants “originated and helped facilitate” a project at Petco, does not sufficiently
17 show an economic relationship between Defendants and the Padres. See Soil Retention
18 Prod. Inc. v. Brentwook Indus. Inc., No. 20-cv-2453, 2021 WL 689914, at *19 (S.D. Cal.
19 Feb. 23, 2021)(dismissal warranted because plaintiff “never alleges which entities, if any,
20 it was negotiating with, what the terms were, when the contracts were being negotiated . .
21 . . and how much money, if any, Plaintiff lost as a result”). Similarly, Defendants merely
22 allege they had a “business relationship” with Milholland and Sullivan, but they fail to
23 give the necessary specification, such as what contracts were being negotiated with those
24 parties and how much money Plaintiff lost. Id.
25 Finally, Defendants fail to sufficiently allege Plaintiff’s “intentional, independently
26 wrongful act.” Marsh, 200 Cal. App. 4th at 504. “To establish a claim for interference
27 with prospective economic advantage ... a plaintiff must plead that the defendant engaged
28 in an independently wrongful act. An act is not independently wrongful merely because
1 defendant acted with an improper motive.” Korea Supply Co. v. Lockheed Martin Corp.,
2 29 Cal.4th 1134, 1158 (Cal.2003). “[A]n act is independently wrongful if it is unlawful,
3 that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or
4 other determinable legal standard.” Id. at 1159. Here, Defendants merely allege that
5 SunPower told the other entities “to stop working with Defendants” and that such
6 comments were “disparaging.” However, Defendants fail to allege that Plaintiff's
7 statements were otherwise proscribed by some “constitutional, statutory, regulatory,
8 common law,” or any other determinable legal standard. Id. And to the extent that
9 Plaintiff's statements sound in fraud, Defendants' allegations to that effect would be
10 subject to Rule 9(b)'s heightened pleading standard; a standard that Defendants’ current
11 pleadings cannot satisfy. See Vess V. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th
12 Cir. 2003)(“Averments of fraud must be accompanied by the who, what, when, where,
13 and how of the misconduct charged.” (internal quotations and citations omitted)).
14 Accordingly, the motion to dismiss the Intentional Interference claim is
15 GRANTED WITH LEAVE TO AMEND.
16 2. Unjust Enrichment (Count IV).
17 Defendants assert they had an agreement with Plaintiff’s authorized dealer, DST
18 Construction, Inc. (“DST”) and that DST “materially breached” the agreement by paying
19 Defendants in bad checks. Defendants further allege that DST’s breach somehow
20 unjustly enriched Plaintiff. These allegations fail to state a claim for unjust enrichment.
21 First, under California law, “there is not a standalone cause of action for ‘unjust
22 enrichment,’ which is synonymous with ‘restitution.’ ” Astiana v. Hain Celestial Grp.,
23 Inc., 783 F.3d 753, 762 (9th Cir. 2015). Admittedly, “[w]hen a plaintiff alleges unjust
24 enrichment, a court may ‘construe the cause of action as a quasi-contract claim seeking
25 restitution,’ ” id., but there is also California case law holding that a plaintiff may not
26 “pursue or recover on a quasi-contract claim if the parties have an enforceable agreement
27 regarding a particular subject matter.” Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th
28 1342, 1388 (2012). Unjust enrichment is a quasi-contract claim that depends on the
1 absence of an express written contract covering the same subject matter. Lance Camper
2 Mfg. Corp. v. Republic Indemnity Co., 44 Cal. App. 4th 194, 203 (Cal. App. 2 Dist.
3 1996). Here, because Defendants have alleged a specific agreement with DST over the
4 subject matter, this claim fails.
5 In addition, Defendants fail to allege that Plaintiff unjustly retained any benefit
6 from Defendants. Peterson v. Cellco P’ship, 164 Cal. App. 4th 1583, 1593 (2008)(“The
7 elements of an unjust enrichment claim are the receipt of a benefit and the unjust
8 retention of the benefit at the expense of another.”) Here, Defendants merely allege that
9 “part of the profits generated by the dealer” have been passed to Plaintiff by the dealer.
10 But Defendants do not allege that Plaintiff unjustly received a benefit from Defendants.
11 See Am Video Duplicating, Inc. v. City of Nat’l Bank, No. 20-cv-4036, 2020 WL
12 6882735, at *6 (C. D. Cal. Nov. 20, 2020)(“The only benefit Defendants allegedly
13 received – a lender fee – came from SBA, not from Plaintiff.”).
14 Accordingly the motion to dismiss the Unjust Enrichment claim is GRANTED
15 WITH LEAVE TO AMEND.
16 3. Declaratory Relief (Counts I & II).
17 Defendants seek a declaration that they have not infringed SunPower’s trademark
18 rights (Count I) and that Plaintiff’s trademarks are invalid (Count II). These claims fail
19 for several reasons. First, Defendants have not sufficiently alleged the Sleekcraft1 factors
20 to assess infringement or explain why Defendants’ use of the SUNPOWER marks is non-
21 infringing. Similarly, Defendants merely assert that “[e]ach of Plaintiff’s alleged
22 trademarks is invalid,” but do not say why the marks are invalid. These threadbare
23 recitals are insufficient. Iqbal, 566 U.S. at 678.
24 Second, the declaratory relief claims are duplicative of Plaintiff’s trademark claims
25 and Defendants’ defenses to those claims, and therefore should be dismissed. Declaratory
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1 || relief is appropriate “(1) when the judgment will serve a useful purpose in clarifying and
2 || settling the legal relations in issue, and (2) when it will terminate and afford relief from
3 || the uncertainty, insecurity, and controversy giving rise to the proceeding.” Eureka Fed.
4 || Sav. & Loan Ass'n v. Am. Cas. Co. of Reading, Pa., 873 F.2d 229, 231 (9th Cir. 1989)
5 || (quoting Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). It is
6 || appropriate to dismiss counterclaims where it presents an issue that has already been
7 || brought before the court. Englewood Lending, Inc. v. G&G Coachella Invs., LLC, 651 F.
8 ||Supp. 2d 1141, 1147 (C.D. Cal. 2009); Sliding Door Co. v. KLS Doors, LLC, No. EDCV
9 || 13-00196 JGB, 2013 WL 2090298, at *4 (C.D. Cal. May 1, 2013). Here, Defendants’
10 || counterclaims for declaratory relief will be resolved once the Court determines the merits
11 of Plaintiff's claims for trademark infringement. See Applied Info. Scis. Corp. v. eBAY,
12 || Inc., 511 F.3d 966, 969 (9th Cir. 2007)(plaintiff asserting claims for trademark
13 |/infringement cannot prevail without showing validity and infringement). Therefore, the
14 || declaratory relief claims are duplicative.
15 Accordingly, the motion to dismiss the declaratory relief claims is GRANTED
16 || WITH LEAVE TO AMEND. “Actually amending is not encouraged.” Springboards to
17 || Education, Inc., v. Families in Schools, No. 17cv8348-MWF(EX), 2018 WL 6038291, at
18 || *5 (C.D. Cal. Feb. 9, 2018)(dismissing duplicative claims for declaratory relief in a
19 || trademark case).
20 CONCLUSION
21 For the reasons set forth above, the motion to dismiss Defendants’ counterclaims is
22 || GRANTED WITH LEAVE TO AMEND. Defendants shall have until July 30, 2021
23 file amended counterclaims.
24 IT IS SO ORDERED.
25 Dated: July 2, 2021 €
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Hon. Cathy Ann Bencivengo
27 United States District Judge
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