California Business Litigation Forms - Sample Exemplars. Sample Exemplars

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1 Sample Exemplars 1

2 TABLE OF CONTENTS Introduction... - Meet the Author... - Motion for Preliminary Injunction - Trade Secrets Complaint for Common Law Unfair Competition Complaint for Breach of Covenant Not to Solicit Employees Expert Witness Retention Letter... - Other Exemplars...

3 INTRODUCTION Library of California Business Litigation Forms is designed as a full library of sample documents for your litigation matter. This collection of 1+ sample documents is intended to cover most common types of matters litigators face when representing either a plaintiff or a defendant. Forms are included for general claims such as breach of contract, often-pleaded common counts, declaratory relief, promissory estoppel and fraud, as well as specific claims for common business torts and statutory violations. You will find documents regarding theft of trade secrets, interference with economic advantage, trademark and copyright infringement, breach of confidence, breach of fiduciary duty, insurance bad faith, securities fraud and shareholder derivative suits, corporate dissolution, unfair business practices, and antitrust violations. Also included is a compendium of affirmative defenses frequently raised in business litigation. In addition to pleadings, the collection includes common collateral documents. These include letters demanding preservation of evidence, a joint defense agreement, an expert retention agreement, stipulated protective orders, a temporary restraining order, injunctions, offers of compromise, and a form of judgment. Also included are basic discovery exemplars, such as deposition notices, interrogatory requests, document requests, requests for admissions, expert disclosures, and exemplar declarations to seek discovery beyond the statutory limits, and general objections to discovery requests. Each document includes all of the necessary elements to state a cause of action, a claim for relief, or an affirmative defense. Often included are specific facts, giving form to the types of background allegations that could be included, and serving as a checklist of the types of allegations that can support a claim or defense.

4 MEET THE AUTHOR Willian N. Hebert William N. Hebert is a partner in the San Francisco office of Calvo Fisher & Jacob. Mr. Hebert represents clients in business litigation, including class action defense, business torts (such as antitrust, trade secret litigation, and interference with economic advantage), patent and trademark infringement, false advertising and California s Unfair Competition Law. He has tried a dozen cases in state and federal court, and has litigated numerous arbitrations, including hearings before the National Association of Securities Dealers and the American Arbitration Association. Mr. Hebert was named by the Daily Journal as one of the Top 0 Lawyers in California for 0. Mr. Hebert was President of the State Bar of California for the 0/0 term. He was a member of the State Bar Board of Governors, 00-0, serving as Vice President for He is also a member of the Board of Directors of the San Francisco Legal Aid Society and the Board of Directors of the Public Interest Law Project, as well as Chair of the Board of Trustees of Prospect Sierra School. Mr. Hebert is a panel mediator for the U.S. District Court for the Northern District of California. He received his J.D. for the University of California, Boalt Hall School of Law in 1 and an A.B. from Stanford University in 1 (with distinction). Mr. Hebert is the author of Library of California Business Litigation Forms (ALM Media Properties, LLC 01). He is a contributing author of California Antitrust and Unfair Competition Law (Lexis Nexis, 0), published by the California State Bar Section on Antitrust and Unfair Competition. He contributed chapters on the subjects of expert witnesses, injunctions, treble damages and void contracts.

5 [ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT S NAME] SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF [COUNTY NAME] [PLAINTIFF S NAME], a California corporation, Plaintiff, [DEFENDANT(S) NAME(S)]; and DOES 1 to 0, inclusive, Defendants. v. UNLIMITED JURISDICTION Case No. EX PARTE APPLICATION TRO AND OSC PRELIM. INJUNCTION PLAINTIFF S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: Time: Dept:

6 I. CERTIFICATION OF COMPLIANCE WITH THE EX PARTE RULES OF THE CALIFORNIA RULES OF COURT Before :00 a.m. on [DATE], counsel for Plaintiff notified defendants that Plaintiff would be appearing ex parte at a.m./p.m. on [DATE], in this Court to seek the relief being sought in this application. (Declaration of [ATTORNEY NAME] Supp. of Pl. Ex Parte App. for a Temp. Restraining Order and Order to Show Cause Why Prelim. Inj. Should Not Issue ( NAME Decl. ) *, Exh. A.) II. INTRODUCTION Plaintiff trusted its former employee, software engineer Defendant [NAME] ( Defendant ) with its confidential and proprietary trade secret information. That trust was misplaced. [DESCRIBE FACTS REGARDING MISAPPROPRIATION OF TRADE SECRETS, e.g., A few months before Defendant resigned, he started a competing company, Defendant [COMPANY]. He then began to download all of Plaintiff s source code and transferred it through an unauthorized FTP (File Transfer Protocol) system or copied it onto a thumb drive, he kept thumb drives that contained Plaintiff s source code rather than returning them when he left the company, and he copied its customer list. Less than [NUMBER] months after Defendant left Plaintiff, Defendants were marketing a competing [PRODUCT] to Plaintiff s customers that one of them has reported is identical to Plaintiff s [PRODUCT]. Defendants [PRODUCT] is the result of blatant copying: Plaintiff invested [NUMBER] years and the fulltime work of [NUMBER] [DESCRIBE TITLE OR TYPE OF WORKERS] to create its product, but Defendants developed their identical product in a few weeks. Plaintiff is entitled to a temporary restraining order and an order to show cause why a preliminary injunction should not issue to prevent Defendants from continuing to use Plaintiff s confidential, proprietary and trade secret information. Unless this Court acts immediately to restrain Defendants, they will continue to use and disclose Plaintiff s valuable trade secrets and confidential business information. III. FACTUAL BACKGROUND [STATE BACKGROUND FACTS HERE; DESCRIPTION OF TRADE SECRETS; EX PARTE APP. TRO/OSC AND MPA SUPP. 1

7 REASONABLE EFFORTS TO MAINTAIN SECRECY OF INFORMATION; HOW TRADE SECRETS WERE MISAPPROPRIATED/DISCLOSED/USED WITHOUT AUTHORIZATION; NEED FOR PRELIMINARY INJUNCTIVE RELIEF] IV. ARGUMENT A. Plaintiff is Entitled to a Preliminary Injunction As it is Likely to Succeed On Its Claim for Breach of Contract and Specific Performance of the Non- Disclosure Agreement. A cause of action for breach of contract requires pleading (1) the contract; () plaintiff s performance or excuse for non-performance; () defendant s breach; and () damage to plaintiff. McKell v. Washington Mutual, 1 Cal. App. th 1, 1 (00). Specific performance of a contract may be decreed whenever: (1) its terms are sufficiently definite, () consideration is adequate, () there is substantial similarity of the requested performance to the contractual terms, () there is mutuality of remedies, and () plaintiff's legal remedy is inadequate. Union Oil Co. of California v. Greka Energy Corp., 1 Cal. App. th 1, 1 (00). Plaintiff first cause of action is for breach of contract and specific performance of Defendant s Non-Disclosure Agreement ( NDA ), pursuant to which he agreed to keep confidential Plaintiff s Confidential Information, as is specifically defined in the NDA, and agreed to return all Confidential Information upon request. ( Decl. Exh. B,,.) The parties to the NDA acknowledged that a breach of the provisions of Paragraphs [NUMBERS] of this agreement would cause the other party to suffer irreparable damage and could not be adequately remedied by an action of law. Accordingly, the parties agree that either party shall have the right to seek specific performance of the provisions of Paragraph [NUMBER] to enjoin a breach or attempted breach of the provisions thereof, such right being in addition to all other rights and remedies that are available to the parties at law, in equity, or otherwise. (Id..) Plaintiff is entitled to specific performance of Defendant s obligations under this contract: it is definite, consideration was adequate, the requested performance is identical to the EX PARTE APP. TRO/OSC AND MPA SUPP.

8 contract terms, the remedies are mutual, and Plaintiff s legal remedy is inadequate. Union Oil, 1 Cal. App. th at 1. Pending specific performance, this Court can issue a preliminary injunction to prevent continued breaches of the contract. A contract that can be specifically enforced can also be preliminarily enforced by means of injunctive relief. Southern Christian Leadership Conference v. Al Malaikah Auditorium Co., 0 Cal. App. d 0, (). Plaintiff is likely to prevail on its first cause; therefore, the Court should enter an injunction to prevent further breaches of Defendant s NDA B. Plaintiff is Entitled to a Preliminary Injunction Because It is Likely to Succeed On Its Claim for Violation of California Penal Code 0. California Penal Code section 0 establishes civil liability for anyone who knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to an computer, computer system, or computer network. Cal. Penal Code 0(c)() & (e)(1); see Iconix, Inc. v. Tokuda F. Supp. d (N.D. Cal. 00) (finding that plaintiff was likely to succeed on his unfair competition law claim that defendants violated Penal Code Section 0 by deleting files from plaintiff s computer without plaintiff s permission in order to destroy incriminating evidence and by having plaintiff s employee upload a source code belong to plaintiff). Defendants have violated Section 0 by using, without permission Plaintiff s computer systems, uploading and copying files, and deleting files to cover their tracks. Accordingly, Plaintiff is entitled to an injunction because it will prevail under this claim. C. Plaintiff is Likely to Succeed on its Claims for Breach of the Duty of Loyalty and Aiding and Abetting Breach of Fiduciary Duty. In order to prevail on a claim for breach of the duty of loyalty, Plaintiff must demonstrate: (1) the existence of a relationship giving rise to a duty of loyalty, () one or more breaches of that duty, and () damage proximately caused by that breach. Huong Que, Inc. v. Luu, 10 Cal. App. th 00, (00). In an employment relationship, [t]he duty of loyalty arises not from a contract but from the relationship of principal and agent. Id. at. Where EX PARTE APP. TRO/OSC AND MPA SUPP.

9 such a relationship arises, the agent assumes a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship. Id. The duty of loyalty is breached when an employee, during his employment, competes with his employer. Id. at 1; see also Stokes v. Dole Nut Co., 1 Cal. App. th, (1) ( [D]uring the term of employment, an employer is entitled to its employees' undivided loyalty... The duty of loyalty is breached... when the employee takes action which is inimical to the best interests of the employer. (citations and internal quotation marks omitted)); GAB Bus. Servs. v. Lindsey & Newsom Claim Servs., Inc., Cal. App. th 0, (000) Under California law, a defendant may be liable for aiding and abetting in the commission of an intentional tort if he (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person. Saunders v. Sup. Ct., Cal. App. th, (1). A defendant may be found liable for aiding and abetting a breach of fiduciary duty even though the defendant owes no independent duty to the plaintiff, so long as the aider and abettor knows of, and substantially assists, the primary violator's breach of duty. Neilson v. Union Bank of California, 0 F. Supp. d, (C.D. Cal. 00) (applying California law to hold an employee and several other defendants liable for aiding and abetting an investment advisor in defrauding investors). Here, an employment relationship existed between Defendant and Plaintiff giving rise to a duty of loyalty. However, Defendant has breached that duty, and is continuing to breach that duty in violation of his NDA. All of his co-defendants are aiding and abetting that by knowingly giving him substantial assistance in his endeavor to develop a competing product using Plaintiff s confidential information. Plaintiff is therefore likely to prevail on its claims for breach of the duty of loyalty and aiding and abetting the breach of Defendant s fiduciary duty. D. Plaintiff is Entitled to a Preliminary Injunction Because It is Likely to Succeed on its Claims Under the Uniform Trade Secrets Act. To prevail on a claim under the Uniform Trade Secrets Act, a plaintiff must allege and EX PARTE APP. TRO/OSC AND MPA SUPP.

10 prove (1) the existence of the subject matter which is capable of protection as a trade secret, () disclosure of the trade secret under circumstances giving rise to a contractual or other legally imposed obligation not to use or disclose the secret to the detriment of the trade secret owner, and () where the defendant is an employee or former employee of the trade secret owner, the facts alleged must also show that the public policy in favor of protection of the trade secret owner s interest outweighs the interest of the employee in using his or her knowledge to support himself or herself in other employment. Cal Francisco Inv. Corp. v. Vrionis, 1 Cal. App. d 1 (). A trade secret is defined as information, including a formula, pattern, compilation, program, device, method, technique or process, that: (1) [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and () [i]s subject to efforts that are reasonable under the circumstances to maintain its secrecy. Id..1(d). Plaintiff can prove that it possesses protectable trade secrets and that Defendants have unlawfully misappropriated these secrets. a. Plaintiff s confidential information is compilation, program, method, technique or process that derives economic value from not being generally known to the public. Computer software and source code is generally recognized as a protectable trade secret. See e.g., S.O.S., Inc. v. Payday, Inc., F.d 1, -0 (th Cir.1). Similarly, designs, plans and other documents relating to new products under development constitute protectable trade secrets. Vacco Industries, Inc. v. Van Den Berg, Cal. App. th (1). Customer lists and databases, including databases relating to customers, are protectable as trade secrets. Morlife, Inc. v. Perry, Cal. App. th (1); ABBA Rubber Co. v. Seaquist, Cal. App. d 1 () (customer list); Courtesy Temporary Service, Inc. v. Camacho, Cal. App. d 1 (10) (customer list, including billing rates, key contact information, specialized requirements and market rates). The types of things that Plaintiff seeks to protect are all protectable as trade secrets: customer lists and software. ( Decl..) Plaintiff therefore has met the first element of its trade secret claim. EX PARTE APP. TRO/OSC AND MPA SUPP.

11 b. Plaintiff has taken reasonable steps to preserve the confidentiality of its trade secrets. Reasonable efforts may include such things as advising employees of the existence of trade secrets, limiting access to trade secrets, controlling access to plants, or requiring employees to sign confidentiality agreements. See Whyte v. Schlage Lock Co., 1 Cal. App. th 1, 1 (00). Plaintiff has taken reasonable steps to protect its trade secrets. These steps include, without limitation [DESCRIBE STEPS TAKEN, e.g., requiring employees and third parties to sign a nondisclosure and confidentiality agreement as a condition of receiving access to Plaintiff s trade secrets; the imposition of strict confidentiality requirements for all employees, as outlined in Plaintiff s employee handbook; and limiting disclosure of information within the company on a need-to-know basis]. ( Decl., Exhs. B, G.) These measures are among those that courts have found to be reasonable measures to protect trade secret information. See ReadyLink Healthcare v. Cotton, 1 Cal. App. th 0, 1 (00) ( ReadyLink took reasonable steps to ensure the secrecy of its trade secret information by requesting employees to sign nondisclosure agreements. ). c. Defendants have wrongfully misappropriated Plaintiff s trade secrets. Misappropriation of a trade secret is defined as acquisition of a trade secret by someone who knows or has reason to know that it was acquired through improper means, or the disclosure or use of a trade secret without consent by a person who, at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was acquired under circumstances giving rise to a duty to maintain its secrecy. Id..1(b). Actual or threatened misappropriation may be enjoined and, in appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. Cal. Civ. Code.(a), (c). See, e.g., Courtesy Temporary Service, Inc., Cal. App. d at 1- (temporary held agency employees use of confidential customer information to actively solicit plaintiff s customers and diverting customers to new employer); American Credit Indemnity v. Sacks, 1 Cal. App. d, - (1) (preliminary injunction would issue to prohibit solicitation of customers by former employee who had signed non-disclosure agreement where trade secrets included client list, EX PARTE APP. TRO/OSC AND MPA SUPP.

12 expiration dates of insurance policies, lists of all leads for potential business, claims histories and other information concerning the special needs of clients). Defendant had access to these trade secrets by virtue of his written NDA and his employment at Plaintiff. ( Decl..) Defendants are wrongfully in possession of trade secrets and other valuable confidential information (such as their product codes and client lists) belonging to the Plaintiff. Defendants have used this information to establish a competing business, merely two or three months within Defendant s departure from Plaintiff, with little time or money. ( Decl..) Damages cannot make Plaintiff whole or end the irreparable harm, which will be and is being caused by Defendants use of Plaintiff s proprietary information. The value of Plaintiff s trade secrets is found in not only the cost and time spent in creating the trade secret. The evidence that Defendants are actively soliciting particular individuals within Plaintiff s customer database lends itself to the possibility of lost confidence within these agencies as to their confidential status and continued importance. An injunction is necessary to stop such irreparable harm from occurring. E. Plaintiff is Likely to Succeed On Its Claim for Conversion. The essence of conversion is the wrongful exercise of dominion over the personal property of another. Fremont Indem. Co. v. Fremont General Corp., 1 Cal. App. th, (00). The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; () the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and () resulting damages. Id. Further, the misappropriation and sale of intangible property of another without authority from the owner is conversion. A&M Records, Inc. v. Heilman, Cal. App. d, 0 (1) (holding plaintiff s patient lists and business forms constitute property and the use of those lists and forms by a former employee for the benefit of a competitor constitutes conversion). It is indisputable that Plaintiff owns and has the right to possess the property, including the trade secrets, software source code, Web application databases and storage procedures, client lists, pricing and other confidential and proprietary business information alleged in this EX PARTE APP. TRO/OSC AND MPA SUPP. 1

13 complaint. ( Decl..) Defendants wrongfully appropriated for themselves Plaintiff s files, electronic data, sales and customer lists, and other material in violation of Plaintiff s property rights, and used this property for their own advantage and Plaintiff s detriment. Plaintiff has suffered irreparable harm and will continue to do so if Defendants are permitted to keep and use Plaintiffs property F. Plaintiff is Likely to Succeed on its Claim for Intentional Interference with Contract. A plaintiff is entitled to be free from the unjustified interference by third parties with its contracts. The elements of Plaintiff s cause of action for intentional interference with contractual advantage are: (1) a valid contract between plaintiff and a third party; () defendant s knowledge of this contract; () defendant s intentional acts designed to induce a breach or disruption of the contractual relationship; () actual breach or disruption of the relationship; and () resulting damage. Savage v. Pacific Gas and Elec. Co., 1 Cal. App. th, (1); see also Imperial Ice Co. v. Rossier, 1 Cal.d, - (). Plaintiff is likely to succeed on every element of its claim for intentional interference with contractual advantage. Plaintiff s NDA with Defendant is a valid and existing contract. Defendants COMPANY and CO-DEFENDANTS undoubtedly knew about the existence of the contract and these Defendants intentionally interfered with Defendant s performance of it by working with him to steal Plaintiff s proprietary and confidential information. Defendants conduct is unexcused. It is well established, however, that a person is not justified in inducing a breach of contract simply because he is in competition with one of the parties to the contract and seeks to further his own economic advantage at the expense of the other. Imperial Ice, 1 Cal.d at. This is the rule in California and the majority rule. Id., 1 Cal.d at. Accordingly, because the Co-Defendants have induced Defendant to breach his NDA, Plaintiff is likely to succeed under this claim and a preliminary injunction should issue against them to prevent further interference. G. Plaintiff is Entitled to a Preliminary Injunction Because it is Likely to EX PARTE APP. TRO/OSC AND MPA SUPP. 1

14 Succeed on Its Claim for Unfair Competition. Misappropriation of trade secrets constitutes unfair or unlawful conduct under California Business and Professions Code 100. Courtesy Temporary Service, Cal. App. d at - (holding that even if Courtesy's customer list would not qualify as a trade secret, the unfair and deceptive practices of employees in stealing Courtesy's customers through the use of confidential information obtained from defendants employment should have been enjoined under Business and Professions Code 100). Where, as here, Plaintiff has been actually injured and seeks restitution, Plaintiff has standing under Section 100 and 10 to obtain injunctive relief. See, e.g. Iconix, Inc., F. Supp. d at (entering injunctive relief under Uniform Trade Secrets Act against two former employees who had misappropriated trade secrets, and where plaintiff sought restitution of things taken from it). In the present case, because Plaintiff has suffered actual injury due to Defendant s breach of the NDA and Defendant s misappropriation of trade secrets, Plaintiff is entitled to injunctive relief under Business and Professions Code Section 10. H. The Court Should Issue an Injunction to Prevent Further Harm to Plaintiff. The Court has authority to enter an order enjoining unlawful conduct under its inherent equitable power and under Code of Civil Procedure Sections and, Civil Code Section.(a), (c), and Business and Professions Code Section 10. In deciding whether to issue a preliminary injunction, a trial court outweighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative harm to the parties from the issuance or nonissuance of the injunction. Whyte, 1 Cal. App. th at 1-10 (citing, Hunt v. Superior Court (1) 1 Cal. th, ; Butt v. The State of California (1) Cal. th, -). The greater the plaintiffs showing on one, the less must be shown on the other to support an injunction. Id. at. Additionally, the likelihood of a plaintiff ultimately prevailing on the matter is articulated as a reasonable probability. Continental Banking Company v. Katz, Cal.d 1, (1). Finally, the purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the claim. Id. Courts routinely issue injunctions in trade secret and misappropriation cases. See EX PARTE APP. TRO/OSC AND MPA SUPP. 1

15 Courtesy Temporary Service, Inc., Cal. App. d at 1- (temporary help agency employees use of confidential customer information to actively solicit plaintiff s customers and diverting customers to new employer); American Credit Indemnity v. Sacks, 1 Cal. App. d, (1) (preliminary injunction would issue to prohibit solicitation of credit insurance underwriters customers by former employee); Huong Que, 10 Cal. App. th at 1 (affirming the entry of injunction for breach of duty of loyalty by establishing a competing business). Furthermore, [w]here the plaintiff proves that the defendant unlawfully interferes or threatens to interfere with his business or his rights under a contract, and further makes out in proof that damages will not afford an adequate remedy, equity will issue an injunction. California Grape Control Board, Ltd. v. California Produce Corporation, Ltd., Cal. App. d, (1). Plaintiff is likely to prevail on the merits of all of its claims. If an injunction is not issued, Plaintiff will be gravely injured. If an injunction is issued, Defendants will not be prevented from lawfully competing with Plaintiff by developing their own software program, just as Plaintiff did, but without free-riding on Plaintiff s substantial investment of time and money. By issuing an injunction, the Court will preserve the status quo pending trial on the merits. V. CONCLUSION For the reasons set forth above, Plaintiff asks that this Court issue an order to show cause why a preliminary injunction should not issue against Defendants for the breaches and violations of law set forth herein. DATED: EX PARTE APP. TRO/OSC AND MPA SUPP. By: LAW FIRM NAME [ATTORNEY NAME] Attorneys for [CLIENT S NAME] [PLAINTIFF/DEFENDANT] 1

16 [ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT S NAME] SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF [COUNTY NAME] [PLAINTIFF S NAME], a California corporation, Plaintiff, [DEFENDANT(S) NAME(S)], a California corporation; and DOES 1 to 0, inclusive, Defendants. v. UNLIMITED JURISDICTION Case No. [PLEADING TITLE] COMPLAINT FOR COMMON LAW UNFAIR COMPETITION 1

17 Plaintiff [NAME], as its complaint against Defendants [DEFENDANTS NAMES] alleges as follows: PARTIES 1. Plaintiff [NAME] is a corporation organized and existing under the laws of the State of California, with its principal place of business in [CITY], California. Plaintiff is qualified to do business in the State of California.. Defendant [NAME] is, and at all material times was, a corporation organized and existing under the laws of the State of California with its principal place of business in [CITY], California.. The true names and capacities, whether individual, corporate, associate, or otherwise, of Does 1 through 0, inclusive, are unknown to Plaintiff, who therefore sues the Doe Defendants by fictitious names. Plaintiff will amend this Complaint to show their true names and capacities when they have been ascertained.. Plaintiff is informed, believes and thereon alleges that each of the fictitiously named Defendants designated as Does 1 through 0, inclusive, were legally, equitably, and/or otherwise responsible for the acts, omissions, errors, tortious conduct, and/or occurrences herein alleged and that injuries and/or damages as herein alleged were proximately caused by these fictitiously named Defendants.. Plaintiff is informed, believes and thereon alleges that each of the Defendants herein was, and at all times relevant to this action is, the agent, employee, representing partner, supervisor, managing agent, or joint venturer of the remaining Defendants and was acting within the course and scope of that relationship. Plaintiff is further informed, believes and thereon alleges that each of the Defendants herein gave consent to, ratified, and authorized the acts alleged herein of the remaining Defendants. Defendants are sued both in their own right and on the basis of respondeat superior.. Plaintiff is informed, believes and thereon alleges that each and every of the acts and omissions alleged herein were performed by, and/or attributable to, all Defendants, each acting as agents and/or employees, and/or under the direction and control of each of the other 1 [PLEADING TITLE] 1

18 Defendants, and that said acts and failures to act were within the course and scope of said agency, employment and/or direction and control. FIRST CAUSE OF ACTION (Common Law Unfair Competition). Plaintiff incorporates by reference as though fully set forth herein paragraphs to, inclusive.. [PLAINTIFF S NAME] is a business started in [YEAR]. Plaintiff owns and operates a [DESCRIBE BUSINESS OPERATIONS]. Plaintiff sells its [PRODUCT] at [LOCATION, e.g., its own store, through retailers] and throughout California and nationwide. Plaintiff has developed a reputation for producing high-quality [PRODUCT].. As a family-run business, Plaintiff decided to adopt [FAMILY NAME TRADEMARK ALL CAPS] as its label and trademark. The name [FAMILY NAME TRADEMARK ALL CAPS] became a distinct and unusual trademark in the [DESCRIBE TYPE OF BUSINESS] business. Since at least [MONTH, DAY, YEAR], Plaintiff has been using the name [FAMILY NAME TRADEMARK ALL CAPS] in connection with the advertising, marketing and sale of [PRODUCT].. Plaintiff has advertised heavily to market and sell its [PRODUCTS], both in California and throughout the country. Consumers recognize the [FAMILY NAME TRADEMARK ALL CAPS] name and mark as symbolizing a high-quality [PRODUCT] from a particular source, namely, [PLAINTIFF S NAME].. In [YEAR], many years after Plaintiff adopted the [FAMILY NAME TRADEMARK ALL CAPS] name and mark, Defendant [NAME] began to sell [PRODUCT] under the [DEFENDANT S PRODUCT NAME ALL CAPS]. Defendant s use of the name [DEFENDANT S PRODUCT NAME ALL CAPS] is likely to cause confusion and has caused confusion among consumers as to whether [DEFENDANT S NAME] s [PRODUCTS] are made by, sponsored or approved by Plaintiff [NAME] or that [DEFENDANT S NAME] s [OPERATION] is sponsored by or affiliated with [PLAINTIFF S NAME]. 1. [DEFENDANT S NAME] s actions alleged above are likely to cause mistake, [PLEADING TITLE] 1

19 confusion and/or deceive the public as to the affiliation with, sponsorship by, approval by or connection between Plaintiff and Defendant and thus constitute unfair competition, or passing off, under common law. 1. As a result of [DEFENDANT S NAME] s actions alleged in this complaint, Plaintiff has suffered and is likely to suffer in the future monetary damages due to loss of sales and loss of goodwill. 1. Unless and until restrained by this Court, Defendant [NAME] will continue unlawfully and without permission to use Plaintiff s [FAMILY NAME TRADEMARK ALL CAPS] mark on Defendant s [PRODUCTS], which will cause Plaintiff irreparable injury for which monetary damages will be inadequate, including without limitation damage to its trademark, loss of goodwill, and loss of the ability to move into new markets. PRAYER FOR RELIEF WHEREFORE, Plaintiff [NAME] prays for the following relief: 1. That Defendant [NAME], its officers, directors, agents, employees, representatives and all persons acting or claiming to act on its behalf or under its direction and control, and all persons acting in concert or participation with [DEFENDANT S NAME], and who receive notice of the order, be enjoined during the pendency of this action and perpetually from (1) using the designation [PLAINTIFF S TRADEMARK ALL CAPS] or any other name, mark or designation that is a colorable imitation of or confusingly similar to [PLAINTIFF S TRADEMARK ALL CAPS], whether alone or in combination with any other name or mark, in connection with the manufacture, advertising, marketing or sale of [PRODUCT], [PRODUCT]-related products, [PLAINTIFF S OPERATIONS, e.g., stores], or any other good, product or service that neither originates from nor is authorized by Plaintiff [NAME]; goodwill; and. For damages according to proof at trial, including for lost profits and loss of [PLEADING TITLE] 1

20 . For such other relief as the Court deems just and proper. DATED: [LAW FIRM NAME] By: [PLEADING TITLE] [ATTORNEY NAME] Attorneys for [CLIENT S NAME] [PLAINTIFF/DEFENDANT] 0

21 [ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT S NAME] SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF [COUNTY NAME] [PLAINTIFF S NAME], a California corporation, Plaintiff, [DEFENDANT(S) NAME(S)]; and DOES 1 to 0, inclusive, Defendants. v. UNLIMITED JURISDICTION Case No. COMPLAINT COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR BREACH OF CONTRACT AND COVENANT NOT TO SOLICIT EMPLOYEES OF FORMER EMPLOYER 1

22 Plaintiff [NAME], as its complaint against Defendants [DEFENDANT S NAMES] alleges as follows: PARTIES 1. Plaintiff [NAME] is a corporation organized and existing under the laws of the State of California, with its principal place of business in [CITY], California. [PLAINTIFF NAME] is qualified to do business in the State of California.. Defendant [NAME] is, and at all material times was, an individual who is a resident of the State of California, and the County of [COUNTY] The true names and capacities, whether individual, corporate, associate, or otherwise, of Does 1 through 0, inclusive, are unknown to Plaintiff, who therefore sues the Doe Defendants by fictitious names. Plaintiff will amend this Complaint to show their true names and capacities when they have been ascertained.. Plaintiff is informed, believes and thereon alleges that each of the fictitiously named Defendants designated as Does 1 through 0, inclusive, were legally, equitably, and/or otherwise responsible for the acts, omissions, errors, tortious conduct, and/or occurrences herein alleged and that injuries and/or damages as herein alleged were proximately caused by these fictitiously named Defendants.. Plaintiff is informed, believes and thereon alleges that each of the Defendants herein was, and at all times relevant to this action is, the agent, employee, representing partner, supervisor, managing agent, or joint venturer of the remaining Defendants and was acting within the course and scope of that relationship. Plaintiff is further informed, believes and thereon alleges that each of the Defendants herein gave consent to, ratified, and authorized the acts alleged herein of the remaining Defendants. Defendants are sued both in their own right and on the basis of respondeat superior.. Plaintiff is informed, believes and thereon alleges that each and every of the acts and omissions alleged herein were performed by, and/or attributable to, all Defendants, each acting as agents and/or employees, and/or under the direction and control of each of the other Defendants, and that said acts and failures to act were within the course and scope of said 1 COMPLAINT

23 agency, employment and/or direction and control. GENERAL ALLEGATIONS. Plaintiff is a [DESCRIBE, e.g., software company].. From [DATE] to [DATE], Defendant was employed by Plaintiff as [TITLE]. On [DATE], Defendant resigned from Plaintiff and took the position of Vice President of Sales of [NAME], one of Plaintiff s principal competitors in the market for [PRODUCT].. Defendant s employment with Plaintiff was governed by a written Employment Agreement, a copy of which is attached hereto as Exhibit A and incorporated by this reference Defendant s written Employment Agreement contains the following provision: [QUOTE NON-SOLICITATION PROVISION OF AGREEMENT]. Almost immediately after Defendant resigned from Plaintiff and took the position of Vice President of Sales of [NAME], Defendant began to directly and indirectly solicit Plaintiff s sales representatives and employees to work for [NAME] in violation of the nonsolicitation provision of his Employment Agreement.. Despite repeated demands that Defendant cease and desist from soliciting Plaintiff s employees in violation of his Employment Agreement, Defendant has continued to do so. FIRST CAUSE OF ACTION (Breach of Contract Non-Solicitation of Employees) 1. Plaintiff incorporates by reference as though fully set forth herein paragraphs to, inclusive. 1. The Employment Agreement is a valid and existing contract. 1. Plaintiff has performed all conditions, covenants, and promises required by it to be performed in accordance with the terms and conditions of the Employment Agreement. 1. Defendant breached the Employment Agreement within one year after his termination from employment by directly or indirectly, wrongfully, unfairly or in an anticompetitive manner, soliciting, inducing, or hiring, or attempting to solicit, induce or hire, Plaintiff s employees, consultants or representatives to terminate, reduce or materially alter such COMPLAINT

24 employee s, consultant s, agent s or other representative s relationship with, or otherwise cease negotiations and/or business activity with Plaintiff. 1. As a result of Defendant s breach of the non-solicitation clause of the Employment Agreement, Plaintiff has suffered actual damages, including lost profits and loss of goodwill, in an amount to be proven at trial. 1. Unless and until Defendant is enjoined and restrained by order of this Court, Defendant will continue his wrongful conduct in violation of the non-solicitation covenant contained in the Employment Agreement. Unless and until enjoined, the Defendant s wrongful conduct will cause great and irreparable injury to Plaintiff and its business in that it will continue to lose employees and customers to Defendant and suffer injury to its goodwill. 1. Plaintiff has no adequate remedy at law for the injuries currently being suffered or which are threatened in that Defendant will continue to compete with Plaintiff in violation of the covenant not to compete and Plaintiff would be required to maintain a multiplicity of judicial proceedings to protect its interests. goodwill; PRAYER FOR RELIEF WHEREFORE, Plaintiff [NAME] prays for the following relief: 1. For actual damages for breach of contract, including lost profits and loss of. For preliminary and permanent injunctive relief pursuant to Sections and of the California Code of Civil Procedure enjoining Defendant, and his officers, agents, servants, employees, and attorneys, and all other persons who are in active concert or participation with him, and who receive actual notice of the order, from continuing to directly or indirectly, wrongfully, unfairly or in an anti-competitive manner, solicit, induce, or hire, or attempt to solicit, induce or hire, Plaintiff s employees, consultants or representatives to terminate, reduce or materially alter such employee s, consultant s, agent s or other representative s relationship with, or otherwise cease negotiations and/or business activity with Plaintiff, for a period of one COMPLAINT

25 year after Defendant s termination of employment in breach of the non-solicitation covenant contained in the Employment Agreement;. For pre-judgment interest at the legal rate [OR at the contract rate] commencing on the date of breach;. [IF THE CONTRACT CONTAINS A PREVAILING PARTY ATTORNEYS FEE PROVISION] For Plaintiff s reasonable attorneys fees;. For its costs of suit; and,. For such other relief as the Court deems just and proper. DATED: By: COMPLAINT [LAW FIRM NAME] [ATTORNEY NAME] Attorneys for [CLIENT S NAME] [PLAINTIFF/DEFENDANT]

26 Re: Engagement for Services Dear Professor : This letter will confirm that [FIRM NAME] (the "Firm"), as counsel for [CLIENT] (the ABC Company ), has retained you to [DESCRIBE subject matter of testimony, e.g., calculate the damages attributable to Defendant [NAME] s infringement of [NAME] Company s U.S. Patent No. [PATENT NUMBER] ). The Firm is asking you to provide expert consulting services and we may ask you to testify as an expert witness at deposition and trial on these issues as they relate to [NAME] Company s claims against [DEFENDANT NAME] Company. You have agreed to give us your independent evaluation of these issues. To assist you, we will provide you with materials or information that you require to reach your conclusions. While we will attempt to provide you with everything reasonably necessary to the formulation of your opinions, we will try not to overload you with irrelevant information. Your engagement is to provide consultation to us as legal counsel for [NAME] Company. The adverse party is [DEFENDANT NAME] Company. Accordingly, unless and until we designate you as a testifying expert and your deposition is taken, our communications with you are protected from disclosure by the attorney work product doctrine and attorney-client privilege. It is your duty to protect against disclosure of information regarding this engagement. This duty to protect the confidentiality of information has been in effect since the first time we spoke about this matter. We request that any written communication (electronic or otherwise) to us bear the confidentiality legend, set forth above, on each page of the communication, although the failure to include such a designation does not waive or otherwise affect its confidential nature. As attorneys, our Rules of Professional Conduct prohibit us from contacting an adverse party who is represented by counsel without his or her attorney present. When acting as the Firm's consultant or expert on this engagement, you agree to abide by this rule and agree that you will not contact the adverse party or any person affiliated with the adverse party for any purpose without previously notifying us and obtaining our advance written approval. You also acknowledge that all information disclosed to you by [NAME] Company or this Firm and the work you provide to the Firm under this agreement is confidential and proprietary, and you will not disclose this information to any third parties. If you are served with a subpoena or other legal document requesting the disclosure of any information that you have received or created pursuant to this agreement, you will promptly notify the Firm and you will cooperate with all reasonable and lawful requests by the Firm to prevent the disclosure of confidential and/or proprietary information. You also agree not to take any engagements during the term of this engagement that might cause you to reveal confidential information to any third party or [DEFENDANT NAME] Company or its attorneys. You agree to disclose to the Firm if you are approached to consider an engagement that might potentially conflict with your work for [NAME] Company or the Firm in this matter. Confidential Communication Attorney-Client Privilege Attorney Work Product 1

27 We understand that if you are required to provide testimony, at a deposition or otherwise, it may be necessary for you to resist any effort by a third party to elicit, in connection with that testimony, facts concerning materials proprietary to you or to your other clients and/or engagements. This may be necessary due to (1) confidentiality agreements or protective orders governing those other engagements, () restrictions on disclosure imposed by your other clients, or () other reasons. The Firm acknowledges the legitimate interest you have in maintaining the confidentiality of your proprietary materials and other clients and engagements. In the event such testimony concerning your proprietary matters or other clients or engagements becomes an issue, you will use your best efforts to protect the interests of [NAME] Company and the Firm consistent with your needs to protect your proprietary materials and comply with applicable nondisclosure obligations. You will consult with us on a regular basis regarding your work and you will make every reasonable effort to perform the assignment in a cost-effective manner. We have agreed that you will be paid you your standard hourly rate of $[AMOUNT] per hour for consulting and testifying and you will also be reimbursed for all reasonable and necessary expenses that you incur in connection with this matter. Please remit your invoices to me to review, but we anticipate that [NAME] Company will pay you directly. If this letter accurately reflects our agreement, please indicate your acceptance by signing below. Please keep a copy for your files and return the original of this engagement letter to me. If you have any questions, please do not hesitate to call me. Accepted and agreed: [EXPERT WITNESS S NAME] Dated: Confidential Communication Attorney-Client Privilege Attorney Work Product Very truly yours, [ATTORNEY NAME]

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