Mossimo Holdings LLC v. Harry Haralambus et al, No. 2:2014cv05912 - Document 157 (C.D. Cal. 2017)


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Mossimo Holdings LLC v. Harry Haralambus et al Doc. 157 O 1 2 3 JS-6 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 MOSSIMO HOLDINGS, LLC, 9 10 Plaintiff, v. 11 12 HARRY HARALAMBUS, ET AL., 13 Defendants, 14 15 THE LAMBUS CORPORATION, Third-party plaintiff, 16 17 v. 18 19 20 VICTOR SIASAT, et al., Third-Party Defendants. 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-05912 DDP (JE) ORDER GRANTING THIRD-PARTY DEFENDANT VICTOR SIASAT’S MOTION FOR SUMMARY JUDGMENT [Dkt. 117] 22 23 Presently before the court is Third-Party Defendant Victor Siasat’s Motion for 24 Summary Judgment. After considering the parties’ submissions and hearing oral 25 argument, the court GRANTS the motion and adopts the following Order. 26 I. BACKGROUND 27 28 Third-Party Plaintiff The Lambus Corporation (“TLC”) is an entity partly-owned and operated by Harry Haralambus. (Declaration of Harry Haralambus ¶ 4.) For 1 approximately the past two decades, TLC, along with several other corporate entities that 2 Haralambus operates, has had a business relationship with an apparel company called 3 Mossimo concerning trademarks in the MOSSIMO brand.1 During a similar period, 4 Haralambus also had a business relationship with an apparel manufacturing and 5 distribution company called Promark Industries, Inc. (“Promark”). (Declaration of Victor 6 Siasat ¶ 5.) Across numerous agreements, which will be addressed in greater detail 7 below, Promark acquired a sublicense to the MOSSIMO mark from Haralambus for use 8 in connection with the manufacture and sale of branded apparel in the Philippines. At some point, relations between Haralambus and Mossimo broke down and 9 10 Mossimo sued Haralambus for breach of contract, conversion, fraud, and other related 11 claims in July 2014. (See Dkt. 35.) The gravamen of Mossimo’s suit was that Haralambus 12 assigned his companies’ rights in the MOSSIMO mark to various shell companies and 13 then collected royalties from sublicenses without Mossimo’s knowledge or consent and 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Initially, the MOSSIMO mark was owned by an entity called Mossimo, Inc. On October 31, 2006, this entity assigned its rights in the MOSSIMO mark to Mossimo Holdings, LLC, which was the plaintiff that filed the original lawsuit in this case. (See Dkt. 35 [Plaintiff’s First Amended Complaint].) Around that time, Mossimo was acquired by the Iconix Brand Group, Inc. (See Haralambus Decl. ¶ 15.) Because the precise chain of assignments within Mossimo itself does not affect the analysis of the instant Motion, the court will generally refer to the company as Mossimo. A separate issue that must be addressed here is whether the court can take judicial notice of facts contained in the First Amended Complaint that Mossimo filed against Haralambus, the operative complaint that initiated this case, and the attached exhibits. Siasat argues that these documents are judicially noticeable pursuant to Fed. R. Evid. 201. (Dkt. 118.) Ordinarily, district courts can consider exhibits attached to a Complaint as evidence, even at the motion to dismiss stage. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Here, the question is complicated by the fact that the complaint and exhibits at issue are the ones that initiated the entire proceeding rather that the specific third-party complaint that initiated the instant dispute. Nonetheless, courts in similar situations have held that “[d]ocuments previously filed with the court in the instant litigation are subject to judicial notice.” Century Indem. Co. v. Marine Grp., LLC, No. 3:08-CV-1375-AC, 2015 WL 5144330, at *1 (D. Or. Aug. 31, 2015) (taking judicial notice of facts contained in both complaint and third-party complaint) (citing Asdar Group v. Pillsbury, Madison and Sutro, 99 F.3d 289, 290 n. 1 (9th Cir.1996)). However, the court may not judicially notice the truth of the disputed facts contained in such document. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the court shall take notice of the exhibits attached to Mossimo’s Complaint, including the licensing agreement which no party disputes are inauthentic, but will not take notice of any disputed facts. 2 1 without making required royalty payments to Mossimo. (Id. ¶¶ 4-8.) These unauthorized 2 sublicenses allegedly included the deal with Promark. (Id. ¶ 32.) These allegations were 3 never adjudicated and, instead, the parties entered into a settlement and Mossimo 4 dismissed its suit. (See Dkts. 92, 97.) Before the case settled, in September 2014, Mossimo 5 directly granted Promark a license to use the MOSSIMO mark in the Philippines. 6 (Declaration of Adamson Bactat, Ex. 5.) Also while the suit was pending, TLC filed a 7 Third-Party Complaint against Victor Siasat and Iconix Brand Group. (Dkt. 57.) 8 According to TLC, when relations had begun to break down between Haralambus and 9 Mossimo, the parties discussed granting TLC a new exclusive license in exchange for an 10 advance payment of $100,000. (Id. ¶ 10.) Based on those discussions, TLC made the 11 payment but alleges that the draft licensing agreement Iconix later provided to TLC did 12 not represent the parties’ prior understanding. (Id. ¶ 14.) According to TLC, this was 13 because Siasat had interceded with Iconix to interfere with TLC’s contractual relations 14 and prospective economic advantage. (Id. ¶¶ 40-49.) 15 A. Haralambus’s Relationship with Siasat and Promark Industries 16 In 1997, Victor Siasat first introduced Harry Haralambus to Promark Industries. 17 (Siasat Decl. ¶ 5; Haralambus Decl. ¶ 8.) Siasat made the introduction because, at the 18 time, Haralambus was looking for a firm to manufacture and distribute apparel bearing 19 the “MOSSIMO” brand mark in the Philippines. (Id.) Although the parties dispute the 20 precise relationship between Siasat and Promark, it is undisputed that the owner, or one 21 of the owners, of Promark was a relative of Siasat’s and that Siasat had facilitated 22 business for Promark on various occasions. (Declaration of Harry Haralambus ¶ 8; Siasat 23 Decl. ¶ 14.) Haralambus also alleged that Siasat was a co-owner of Promark. 24 (Haralambus Decl. ¶ 8.) 25 On January 1, 1998, Promark entered into a Master License Agreement with Sole 26 Supply, Inc. (“Sole Supply”)—a company owned and operated by Haralambus. (Bacatat 27 Decl. ¶ 3, Ex. 1 [Promark Master License Agreement.) Sole Supply represented in this 28 agreement that it held “all licensing right, title and interest” to the relevant trademarks in 3 1 the Philippines pursuant to a separate licensing agreement with Mosssimo Inc. (Id. at 1; 2 id. § 4.1.) Under the terms of the Promark Master License Agreement, Promark was 3 granted a non-exclusive right to use the MOSSIMO mark in connection with 4 manufacturing “anywhere in the world” and an exclusive right to use the mark in 5 connection with sale and distribution of branded products in the Philippines for a period 6 of five years and four months (expiring on April 30, 2003). (Id. §§ 2.1, 15.1.) The 7 agreement also included a one-time renewal option for five years, which Promark 8 exercised. (Id. § 15.2; Bactat Decl. ¶ 5.) From January 1, 1998 until April 30, 2008, Promark 9 made royalty payments to Sole Supply and TLC—as noted above, another entity owned 10 and operated by Haralambus—totaling $1.08 million for the use of the MOSSIMO marks 11 in the Philippines. (Bactat Decl. ¶ 6; Haralambus Decl. ¶ 13.) 12 In May 2008, immediately after the agreement between Promark and Sole Supply 13 expired, Promark entered into a new licensing agreement with Onward Pacific (the 14 “Second Promark License Agreement.”) (Bactat Decl. ¶ 7, Ex. 2.) Onward Pacific was 15 another entity that Haralambus directed and partially-owned. Under this agreement, 16 Promark was again granted the right to manufacture apparel with the MOSSIMO mark 17 anywhere in the world and sell licensed products in the Philippines. (Id. § 2.1). The term 18 of the agreement was five years, expiring on April 30, 2013. (Id. §§ 3.1, 3.2, 3.3.) Although 19 the Second Promark License Agreement was made with Onward Pacific at least some of 20 the royalty payments under the agreement were sent to TLC. (See Declaration of Susan 21 Baker, Ex. 2 (Haralambus Depo. 186:18-187:3.) Between 2010 and 2013, Promark asserts 22 that it transferred at least $926,187 to TLC. (Bactat Decl. ¶ 11.) Immediately after the 23 Second Promark License Agreement expired, Promark entered into a third license 24 agreement for the MOSSIMO marks with Onward Pacific on May 1, 2013. (Bactat Decl. ¶ 25 10, Ex. 3 [Third Promark License Agreement].) 26 B. Haralambus’s Relationship with Mossimo 27 The parties dispute the precise status of the Mossimo marks in the Philippines 28 when Sole Supply and Promark entered into the Promark Master License Agreement in 4 1 1998. Haralambus contends that prior undisclosed agreements between Mossimo and 2 Sole Supply dating back to 1996 gave Sole Supply an exclusive right to license the marks 3 in the Phillipines, while Promark questions whether Sole Supply or any other entity 4 owned by Haralambus had any such right at that time. (Compare Haralambus Decl. ¶ 4 5 with Siasat Mot. Summ. J (“Mot.”) 4-5.) What the undisputed evidence does show is that 6 Mossimo, Inc. licensed the MOSSIMO mark to Beyond Blue, Inc. (“Beyond Blue”)— 7 another Haralambus owned entity—on April 1, 2001. (Dkt. 35, Ex. 1.) According to that 8 agreement, Mossimo granted Beyond Blue an exclusive license to use the MOSSIMO 9 trademark in Hong Kong, Japan, Korea, Singapore, and the Philippines. (Id. at 1) The 10 initial term of the agreement was five years and Beyond Blue was given an option to 11 renew for another five years. (Id. §§ 2.1, 2.2.) Under the terms of the agreement, Beyond 12 Blue had the right to sublicense the mark but was required to secure Mossimo’s prior 13 written consent and pay Mossimo seventy percent of all royalties from any sublicense 14 agreements. (Id. §§ 1.2, 5.1.) On July 6, 2007, Mossimo and Beyond Blue executed and 15 Amendment to the License Agreement, which terminated Beyond Blue’s license to use 16 the MOSSIMO trademark everywhere but the Philippines where Beyond Blue retained 17 an exclusive license to the marks until December 31, 2012. (Dkt. 35, Ex. 2.) Under the 18 terms of the Amended License Agreement, Beyond Blue was permitted to assign its 19 interests and rights to Onward Pacific—as noted above, a company Haralambus partly- 20 owned and directed. (Id. § 7.) The Amended License Agreement provided for certain 21 guaranteed minimum royalties and maintained the same rights and responsibilities for 22 sublicensing the mark. (Id. §§ 4, 10.) 23 The three assertions Siasat makes about this account are that Haralambus never 24 informed Mossimo of its sublicense agreement with Promark, Haralambus never paid 25 Mossimo the required portion of sublicense royalties, and that Haralambus, and his 26 entities, had lost their rights to the MOSSIMO mark at least five months prior to 27 Promark’s third license agreement with Onward Pacific. Haralambus disputes each of 28 these claims. As to the first two, Haralambus asserts that Mossimo was aware of the 5 1 arrangement and was not owed any additional royalty payments. As to the final point, 2 Haralambus notes that the rights to license the MOSSIMO mark in the Philippines 3 derived from the alleged 1996 agreement with Sole Supply and not any subsequent 4 agreement. (Haralambus Decl. ¶¶ 19, 27.) Thus, any claimed expiration of licensing rights 5 is irrelevant. 6 C. The Parties’ Accounts Intersect 7 After entering into the Amended License Agreement with Haralambus, Mossimo 8 alleges that Onward Pacific failed to make the guaranteed minimum royalty payments. 9 (Dkt. 35 ¶ 44.) Mossimo contacted Haralambus about the issue and, after some 10 discussion, Mossimo alleges that Haralambus had TLC transfer $100,000 to Mossimo to 11 partially satisfy the owed royalty payments. (Id. ¶ 45.) During this period, Haralambus 12 agrees that the parties were engaged in discussions about the MOSSIMO marks. 13 (Haralambus Decl. ¶ 23.) In Haralambus’s view, he did not owe any minimum 14 guaranteed royalty payments because of the alleged agreement with Sole Supply that 15 gave that company the rights to the MOSSIMO mark in the Philippines. (Id.) Nonetheless, 16 Haralambus concedes making a $100,000 payment to Mossimo. (Id. ¶ 24.) Haralambus 17 asserts that this payment was made as “part of an overall far-reaching settlement 18 between the parties . . . which was to be consummated in writing.” (Id.) Subsequent to 19 this payment, in September 2013, Haralambus received a draft agreement between 20 Onward Pacific and Iconix. (Id. ¶ 28, Ex. 7.) This draft agreement was never executed. 21 Around this time, two other relevant events transpired. First, Mossimo entered 22 into a new joint venture on September 30, 2013 with an affiliate of the Global Brands 23 Group (“Global Brands”)—an independent company that no party or third-party claims 24 an ownership or interest in—that granted Global Brands the exclusive right to exploit 25 and sublicense the MOSSIMO brand trademarks in a number of Southeast Asian 26 Companies including the Philippines. (Declaration of Jared Margolis ¶ 3.) 27 28 Second, also in September 2013, Siasat met with representatives from Mossimo. (Siasat Decl.¶ 6.) Siasat states that the meeting was to discuss the possibility of acquiring 6 1 the licensing rights for certain other brands not at issue here. (Id. ¶ 6.) As Mossimo was 2 now operated by Iconix, Siasat claims he did not even know that this meeting was with a 3 Mossimo representative and he claims that he never discussed the Mossimo mark. (Id.) 4 Haralambus disputes this assertion and contends that Siasat spoke about the MOSSIMO 5 mark on this occasion. (Haralambus Decl. ¶ 27.) Subsequently, in December 2013, Siasat 6 met with an individual named Jason Rabin who was a representative of the Global 7 Brands Group. (Id. ¶ 11.) Siasat claims that this was the first of multiple interactions with 8 Mossimo representatives who told Siasat that Promark was using the MOSSIMO mark 9 without authorization in the Philippines. (Id. ¶¶ 11, 12.) During these interactions, Siasat 10 claims he turned over Promark’s licensing agreements with the various entities 11 Haralambus operated, as well as records of Promark’s past payments to TLC and other 12 companies. (Id. ¶ 12.) Subsequently, Promark directly entered into a licensing agreement 13 with Mossimo to manufacture and distribute apparel with the MOSSIMO mark in the 14 Philippines. (Declaration of Adamson Bactat, Ex. 5.) 15 In July 2014, Mossimo filed a lawsuit against Haralambus, Onward Pacific, and 16 Beyond Blue. (Dkt. 1.) The Complaint asserted claims for breach of contract, conversion, 17 fraud, accounting, and injunctive relief. (See id.) In March 2015, TLC filed a Third-Party 18 Complaint against Siasat and Iconix asserting claims for contribution, fraud, unjust 19 enrichment, unfair competition, intentional interference with contractual relations, 20 intentional interference with prospective economic advantage, and civil conspiracy. (See 21 Dkt. 57.) According to Haralambus, the $100,000 payment TLC sent to Iconix in January 22 2013 was based on representations made by Iconix that the two companies had resolved 23 their trademark disputes and would enter into a new licensing agreement in the 24 Philippines for several brands including MOSSIMO. (Haralambus Decl. ¶ 24.) TLC’s 25 Third-Party Complaint raises two primary allegations. First, TLC alleges that this new 26 agreement never materialized because Iconix negotiated in bad faith. (Dkt. 57 ¶¶ 14, 18.) 27 Second, TLC alleges that, beginning with the September 2013 meeting with a Mossimo 28 representative, Siasat was engaged in a scheme to undermine the business relationship 7 1 between Mossimo and TLC so that Promark could go around TLC and directly license 2 the Mossimo marks. (See id. ¶¶ 48, 51.) Siasat now moves for summary judgment on all 3 counts. 4 II. LEGAL STANDARD 5 Summary judgment is appropriate where the pleadings, depositions, answers to 6 interrogatories, and admissions on file, together with the affidavits, if any, show “that 7 there is no genuine dispute as to any material fact and the movant is entitled to judgment 8 as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the 9 initial burden of informing the court of the basis for its motion and of identifying those 10 portions of the pleadings and discovery responses that demonstrate the absence of a 11 genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All 12 reasonable inferences from the evidence must be drawn in favor of the nonmoving party. 13 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not 14 bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate 15 that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 16 477 U.S. at 323. 17 Once the moving party meets its burden, the burden shifts to the nonmoving party 18 opposing the motion, who must “set forth specific facts showing that there is a genuine 19 issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party 20 “fails to make a showing sufficient to establish the existence of an element essential to 21 that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 22 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury 23 could return a verdict for the nonmoving party,” and material facts are those “that might 24 affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There 25 is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational 26 trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 27 Corp., 475 U.S. 574, 587 (1986). 28 8 1 It is not the court’s task “to scour the record in search of a genuine issue of triable 2 fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay 3 out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 4 2001). The court “need not examine the entire file for evidence establishing a genuine 5 issue of fact, where the evidence is not set forth in the opposition papers with adequate 6 references so that it could conveniently be found.” Id. 7 III. DISCUSSION 8 A. Intentional Interference Claims 9 TLC alleges that Siasat’s conduct while TLC and Iconix were attempting to 10 negotiate a new licensing agreement between 2012 and 2014 constitutes both intentional 11 interference with contractual relations and intentional interference with prospective 12 economic advantage. (Dkt. 57 ¶¶ 9-20.) Siasat contends that he is entitled to summary 13 judgment on both claims because the evidence fails to create triable issue as to any 14 existing contract or prospective economic advantage. At best, Siasat contends that the 15 parties were contemplating entering into a possible contract or future relationship. In the 16 alternative, Siasat contends that TLC’s claims are unavailing because there is no evidence 17 that Siasat engaged in any intentional acts intended to interfere with any possibly 18 existing contract or economic relationship. 19 20 1. Intentional Interference with Contractual Relations To prove a claim for intentional interference with contractual relations, Plaintiffs 21 must show: “(1) a valid contract between plaintiff and a third party; (2) defendant’s 22 knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach 23 or disruption of the contractual relationship; (4) actual breach or disruption and (5) 24 resulting damage.” Quelimane Co., Inc.v. Stewart Title Guaranty Co., 19 Cal. 4th 26, 55 25 (1998). The third element incorporates a causation requirement that that the intentional 26 acts be a substantial factor in causing the breach. See Bank of New York v. Fremont Gen. 27 Corp., 523 F.3d 902, 909 (9th Cir. 2008); see also Hahn v. Diaz-Barba, 194 Cal. App. 4th 1177, 28 9 1 1196 (2011) (stating that a plaintiff must allege that the contract would otherwise have 2 been performed). 3 The threshold requirement for an intentional interference with contractual 4 relations is the existence of a valid contract. Tuchscher Dev. Enterprises, Inc. v. San Diego 5 Unified Port Dist., 106 Cal. App. 4th 1219, 1239 (2003). In its opposition to the instant 6 Motion, TLC includes only a single sentence about the existence of a valid contract: “The 7 relationship that TLC had with Mossimo was via an assignment of rights it was granted 8 from Sole Supply, Inc. and those rights were continuing. (See Dec. of Harry Haralambus, 9 ¶ ).” Setting aside the lack of adequate citation to record evidence, this conclusory 10 declaration is inadequate to create a triable issue of fact. The contract TLC appears to be 11 referencing is an alleged 1996 agreement between Haralambus and Mossimo where, 12 “[f]or an approximately 1.4 million cash injection into its coffers, Mossimo relinquished 13 rights in eleven countries in Southeast Asia for apparel and apparel accessories, and 14 Worldwide for footwear.” (Haralambus Decl. ¶ 4.) No other party or third-party has ever 15 acknowledged the existence or validity of this alleged agreement nor has TLC provided 16 any other evidence substantiating its existence. To the contrary, the evidence shows that, 17 from 2001 until 2012, Haralambus and his various corporate entities entered into a series 18 of licensing agreements with Mossimo for the rights to use the MOSSIMO mark in the 19 Philippines, among other places. (Dkt. 35, Exs. 2, 3.) These agreements, which 20 Haralambus signed, expressly affirm that “MOSSIMO is the owner of various MOSSIMO 21 trademarks” and that Mossimo “has the right, power and authority to grant licenses to 22 others.” (Dkt. 35 at 25.) If Mossimo had indeed permanently “relinquished” the mark to 23 Haralambus’s company, Sole Supply, it is unclear why Haralambus would have entered 24 into any subsequent licensing agreements for the same mark. 25 A second possible contract might be the oral agreement that TLC alleges it had 26 with Iconix in January 2013. Although Haralambus does not rely on this alleged contract 27 in his opposition papers, the court nonetheless considers whether these allegations create 28 a triable issue of fact out of an abundance of caution. According to the First Amended 10 1 Complaint, “discussion occurred between Iconix and TLC pertaining to conflicting 2 claims concerning the rights for the use of the ’Mossimo’ trademarks in the Philippines“ 3 in 2012. (Dkt. 57 ¶ 9.) At the end of 2012, Iconix allegedly represented to TLC that, in 4 exchange for an advance payment of $100,000.00, Iconix would grant continued exclusive 5 rights” to several trademarks including MOSSIMO. (Id. ¶ 10.) TLC then alleges that it 6 paid this “$100,000.00 advance payment pursuant to the parties’ agreement and based on 7 discussions that could lead to settlements, new license agreements, and/or joint 8 ventures.” (Id. ¶ 11.) This agreement broke down however, when “[i]n 2013, Iconix sent a 9 draft agreement that in no way represented the parties’ earlier agreements.” (Id. ¶ 14.) 10 Haralambus’s Declaration provides a similar account and describes the $100,000 paid to 11 Mossimo “as part of an overall far-reaching settlement between the parties which arose 12 in late 2012 and which was to be consummated in writing.” (Haralambus ¶ 24.) 13 Even drawing all inferences in favor of TLC, no reasonable jury could find that 14 these barebone allegations constituted a valid oral contract between TLC and Iconix for 15 future licensing rights to the Mossimo marks. As Haralambus himself admits, the 16 payment was part of a settlement over conflicting claims to the Mossimo marks. In 17 Mossimo’s account this payment was made after it notified Haralambus that he owed 18 licensing royalty payments dating back to 2011. (Dkt. 35 ¶¶ 44, 45.) But even setting aside 19 Mossimo’s allegation, the TLC complaint and single declaration cannot substantiate the 20 contract claim. It is possible that the parties were contemplating a possible contract but 21 there is no indication of what this oral agreement precisely entailed or that there was a 22 genuine meeting of the minds. Indeed, all previous licensing agreements between the 23 parties were codified in writing and, as Haralambus admits, negotiations broke down 24 when the parties began to exchange draft agreements. Thus, given the absence of any 25 valid contract between TLC and Iconix, the court finds that Siasat is entitled to summary 26 judgment on the intentional interference of contractual relations claim. 27 2. Intentional Interference with Prospective Economic Advantage 28 11 1 The elements of intentional interference with prospective economic advantage are: 2 “(1) an economic relationship between the plaintiff and some third party, with the 3 probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of 4 the relationship; (3) intentional acts on the part of the defendant designed to disrupt the 5 relationship; (4) actual disruption of the relationship; and (5) economic harm to the 6 plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed 7 Martin Corp., 29 Cal.4th 1134, 1153 (2003). 8 As with the prior claim, Siasat contends that the evidence cannot sustain a finding 9 that there was an economic relationship between plaintiff and some third party with the 10 probability of future economic benefit. On this issue, TLC’s opposition papers present no 11 argument about the existence of an economic relationship with the probability of future 12 economic benefit aside from restating the applicable legal standard. (See Opp’n 14.) Based 13 on the First Amended Complaint and Haralambus’s declaration, TLC’s argument on this 14 point appears to be that, but for Siasat’s intervention, TLC would have secured a new 15 licensing agreement with Mossimo and would have continued earning royalties from 16 sublicensing the mark to Promark. 17 The court finds that TLC has not submitted adequate evidence to create a triable 18 issue as to an existing economic relationship with the probability of economic benefit. 19 Although TLC has provided evidence to demonstrate that there was, at one point, an 20 economic relationship between Haralambus-associated entities and Mossimo, there is no 21 evidence of an existing economic relationship at the time of Siasat’s alleged interference. 22 Instead, the evidence reflects that the last licensing agreement between Haralambus and 23 Mossimo expired on December 31, 2012, nearly a year prior to the Siasat meetings with 24 Mossimo representatives that gave rise to this suit. (Dkt. 35, Ex. 2.) Indeed, TLC’s 25 Complaint even acknowledges that the relationship had deteriorated by 2012 over 26 “conflict claims concerning the rights for the use of the ‘Mossimo’ trademarks” and the 27 parties were discussing “new license agreement.” (Dkt. 57 ¶ 9.) Although the parties had 28 prior economic relations and the payment of $100,000 might have indicated that they 12 1 were contemplating restarting an economic relationship, there was no existing 2 relationship. Roth v. Rhodes, 25 Cal. App. 4th 530, 546 (1994) (holding that a speculative 3 relationship does not satisfy the existing relationship prong). 4 Even if there were a triable issue of fact as to an existing economic relationship 5 between TLC and Iconix, “Plaintiff also has the burden of proving that there was the 6 probability of economic benefit with a third party.” Golden v. Sound Inpatient Physicians 7 Med. Grp., Inc., 93 F. Supp. 3d 1171, 1177 (E.D. Cal. 2015) (citing Korea Supply Co. v. 8 Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003); Buckaloo v. Johnson, 14 Cal. 3d 815, 827 9 (1975)); see id. (also noting that “the law precludes recovery for overly speculative 10 expectancies”) (citing Westside Ctr. Assoc. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 11 522 (1996)). The undisputed evidence in this case does not support the conclusion that 12 there was a probability of economic benefit. Although the allegations in Mossimo’s initial 13 complaint cannot be taken as true, they do offer some indication about how the parties’ 14 viewed their economic relationship. Mossimo alleges that it received the payment of 15 $100,000 as part of the royalty payments it believed it was owed by TLC. (Dkt. 35 ¶ 45.) 16 There is no indication that Mossimo intended to accept payment as a guarantee of future 17 economic benefit it would provide to TLC. Likewise, even Haralambus acknowledges 18 that Mossimo was in the process of negotiating an exclusive licensing agreement with a 19 third-party not associated with Haralambus during the relevant period. (Dkt. 57 ¶ 16.) In 20 response, the only evidence Haralambus has submitted to substantiate his assertion that 21 TLC had a probability of economic benefit was his own declaration. The court finds that 22 this single declaration fails to create triable issue of fact as to Siasat’s intentional 23 interference with prospective economic advantage. 24 An alternate ground for granting Siasat summary judgment on the intentional 25 interference with prospective economic advantage claim is that TLC has failed to create a 26 triable issue as to the intentional act prong. “[T]he act of interference with prospective 27 economic advantage is not tortious in and of itself.” Korea Supply, 29 Cal. 4th at 1159. To 28 state a claim for intentional interference under California law, a plaintiff must allege that 13 1 “the defendant engaged in an independently wrongful act,” that is “wrongful by some 2 legal measure other than the act of interference itself.” Id. at 1153 (citing Della Penna v. 3 Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 393 (1995)). This is understood as an act 4 “proscribed by some constitutional, statutory, regulatory, common law, or other 5 determinable legal standard.” Korea Supply, 29 Cal. 4th at 1159. Here, TLC provides no 6 allegations of any independent wrongful conduct on Siasat’s part aside from his alleged 7 interference. Under some conditions interference with an existing contract might satisfy 8 the independent wrong conduct. See Cisco Sys., Inc. v. STMicroelectronics, Inc., 77 F. Supp. 9 3d 887, 898–99 (N.D. Cal. 2014) (citing Korea Supply, 29 Cal. 4th at 1157–58.) However, 10 given that the court has already concluded that there was no valid contract for Siasat to 11 interfere with and given the absence of any other wrongful conduct, the court GRANTS 12 Siasat summary judgment on TLC’s intentional interference with prospective economic 13 advantage. 14 15 3. Stranger to the Relationship “California law has long recognized that the core of intentional interference 16 business torts is interference with an economic relationship by a third-party stranger to 17 that relationship, so that an entity with a direct interest or involvement in that 18 relationship is not usually liable for harm caused by pursuit of its interests.” Marin Tug & 19 Barge, Inc. v. Westport Petroleum, Inc., 271 F.3d 825, 832 (9th Cir. 2001) (citing Della 20 Penna, 45 Cal. Rptr. 2d 436.) Relying on the Restatement of Torts, the Ninth Circuit has 21 state the inquiry as follows: 22 23 24 “One who, having a financial interest in the business of a third person intentionally causes that person not to enter into a prospective contractual relation with another, does not interfere improperly with the other's relation if he (a) does not employ wrongful means and (b) acts to protect his interest from being prejudiced by the relation.” 25 Id. (quoting Restatement (Second) of Torts § 769 (1979)). Although neither party raised 26 this issue in their summary judgment briefing, the court notes that this rule would 27 provide an independent reason for granting Siasat summary judgment. See Bullis v. 28 14 1 Twentieth Century-Fox Film Corp., 474 F.2d 392, 394 (9th Cir. 1973) (affirming district 2 court’s grant of summary judgment on an issue not raised either by party). Here, the undisputed evidence shows that Siasat and Promark had a financial 3 4 interest in the Mossimo marks. Since 1998, Promark had been sublicensing the Mossimo 5 marks from Haralambus. While the specifics of Siasat’s interaction with Mossimo are 6 disputed, no party could dispute that Promark had a financial interest in maintaining the 7 ability to license or sublicense the Mossimo marks. If TLC failed to secure a licensing 8 agreement from Mossimo so that it could continue to sublicense the marks to Promark, it 9 would prejudice Promark’s business interests. Given that the court has held that Siasat 10 did not use any independently wrongful means to secure the MOSSIMO license directly 11 from Mossimo, his actions would not constitute economic interference as he was not a 12 stranger to the business relationships at issue. 13 B. Remaining Claims. 14 Siasat has also filed for summary judgment on TLC’s claims for contribution, 15 unjust enrichment, conspiracy, and violations of California’s unfair competition law. Of 16 these, TLC only addresses Siasat’s argument regarding unfair competition in its 17 opposition brief. The failure to address the remaining claims is grounds for deeming the 18 issues conceded and granting Siasat summary judgment on them. See Ramirez v. Ghilotti 19 Bros. Inc., 941 F. Supp. 2d 1197, 1210 n.7 (N.D. Cal. 2013) (collecting cases and finding a 20 party's failure to address an argument concedes the issue raised). 2 Nonetheless, the court 21 briefly addresses why there are no triable issues as to contribution, unjust enrichment, 22 and conspiracy. 23 In the event that TLC was found liable to Mossimo for conversion in the original 24 lawsuit, TLC’s contribution claim sought to hold Siasat partially responsible for paying 25 any amounts awarded to Mossimo. (See Dkt. 57.) Given that Mossimo and TLC settled 26 27 28 2 At oral argument, counsel for TLC went further and indicated that it was not pursuing the “fraud or conspiracy” but was “going forward with the unjust enrichment claim and the claims for tortious interference.” 15 1 their claims, there was no judgment entered against TLC on the conversion claim and 2 there can never be any such judgment since the original lawsuit has been dismissed. (See 3 Dkts. 92, 97.) Thus, TLC is not entitled to contribution from Siasat as a matter of law. See 4 General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks., 32 Cal. App. 3d 918, 925 (1973). 5 TLC also seeks damages against Siasat for unjust enrichment. The elements for a 6 claim of unjust enrichment are “receipt of a benefit and unjust retention of the benefit at 7 the expense of another.” Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 8 1105, 1132 (2014). Here, TLC’s Complaint makes no allegations that Siasat personally 9 received a benefit and unjustly retained a benefit at TLC’s expense. Indeed, there are no 10 allegations about Sisasat at all on this count. Instead, the allegations concerning this issue 11 in the Complaint are focused only on Iconix and TLC’s discussions and TLC’s payment 12 of $100,000 to Iconix. (See Dkt. 57 ¶¶ 33-36.) Thus, Siasat is entitled to summary judgment 13 on this claim as a matter of law. 14 TLC’s claim for conspiracy is premised on the allegation that Siasat and Iconix 15 formed a conspiracy for the purpose of engaging in fraudulent conduct intended to 16 interfere with TLC’s contractual relations and prospective economic advantage. Having 17 already concluded that there are no triable issues as to the intentional interference claims, 18 the court concludes for substantially similar reasons that there is also no triable issue as 19 to conspiracy. The Complaint is devoid of specific allegations about Siasat’s 20 conspiratorial conduct nor can the evidence cannot support a finding that Siasat 21 interfered with any existing economic relationship or valid contract. 22 The only claim that TLC has contested is the unfair completion law claim. 23 Specifically, TLC contends that Siasat violated California’s Unfair Competition law, see 24 Cal. Bus. & Prof. Code § 17200 et seq., by “working to undermine TLC’s authority and 25 contractual rights with Mossimo, by meeting with them and sharing information from 26 Promark regarding payments made by TLC.” (Opp’n 17.) However, given the court’s 27 conclusion that Siasat did not interfere with TLC’s contractual rights, the court also finds 28 that Siasat is entitled to summary judgment on the unfair competition law claim. 16 1 2 3 IV. CONCLUSION For the reasons stated above, the court GRANTS Siasat’s Motion for Summary Judgment and VACATES all pending motions. 4 5 IT IS SO ORDERED. 6 7 8 9 Dated: April 4, 2017 ___________________________________ DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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