JOHN GOINS, an individual; and GBGB
MEDIA, a California Corporation
Plaintiff,
v.
DAVID BRYAN PORTENER; et al and
DOES 11-20, inclusive.
Defendant
8
9
10 PRELIMINARY STATEMENT
- 1. Plaintiffs John Goins, an individual (“GOINS”)
- bring this complaint against Defendants David
- Bryan Portener (“PORTENER”) and Does 1 through 20 (collectively “DEFENDANTS”) as
- a result of misappropriation of trade secrets under California Civil Code (hereinafter “Cal. 13
Civ. Code.”) § 3426 et seq., tortious interference with contractual relations, intentional
14
interference with prospective economic advantage, negligent interference with prospective
15
- economic advantage, violation of unfair competition under California Business &
- Professions Code § 17200 (hereinafter “Cal. Bus. & Prof. Code”), false advertising under
- Cal. Bus. & Prof. Code § 17500, conversion, fraud in the inducement, and other unlawful
- acts committed by DEFENDANTS.
20 THE PARTIES
21
2. Plaintiff GOINS is, and at all times mentioned herein as, an individual, residing in the
22
- County of Riverside, California.
4. Plaintiff GOINS is, and at all times mentioned herein the incorporator and sole owner of
- GBGB.
- 5. Plaintiff GOINS is informed and believes and thereupon alleges that Defendant 4
PORTENER is an individual residing in the County of San Diego, California.
5
6. Plaintiff GOINS is informed and believes and thereupon alleges that Defendant
6
- PORTENER is doing business in the County of Riverside, California.
- 7. Defendant PORTENER and named DOES 1 through 20, inclusive, are sued and designated
- by fictitious names pursuant to § 474 of the California Code of Civil Procedure (hereinafter
- “Cal. Code of Civ. Proc.”), for the reason that their true names and capacities are unknown
- by PLAINTIFF(S). PLAINTIFF(S) have amended its complaint to show the true names and 12
capacities of such DEFENDANT(S) fictitiously named when ascertained. Plaintiff GOINS
13
- is informed and believes, and thereon alleges, that each of the DOE Defendants are
- responsible in some manner for the causes of action set forth below.
- 8. Plaintiff GOINS is informed and believes, and on that basis alleges, that at all times
- mentioned herein, each of the Defendants were and now are the agents, officers,
- employees, members, representatives or alter egos of one or more of the remaining 19
Defendants, and, in doing the things hereinafter alleged, were acting within the scope of
20
his, her or its authority as such agent, officer, employee, member, representative or alter
21
- ego with the permission and consent of the remaining Defendants.
23 JURISDICTION AND VENUE
- 9. This is a complaint for preliminary and permanent injunctive relief and damages based
- upon violations of California state law committed by Defendant PORTENER and all other
- DOE Defendants in the County of Riverside, California. Therefore, jurisdiction lies in the 27
Superior Court of the State of California.
1 FACTUAL BACKGROUND
- 10. On or about August 16, 2002, Defendant PORTENER registered the fictitious business
- name (“DBA”) Travelhost of Palm Springs & Desert Cities with the Riverside County 4
Clerk-Recorder.
5
11. On or about June 2, 2004, Defendant PORTENER registered the DBA Palm Springs Desert
6
- Media with the Riverside County Clerk-Recorder.
- 12. On or about March 22, 2006, Defendant PORTENER, on behalf of Palm Springs Desert
- Media, registered the DBA Travelhost of Palm Springs & Desert Cities.
- 13. On or about around August 17, 2007, Defendant PORTENER’S registration for the DBA
- Travelhost of Palm Springs & Desert Cities expired. 12
14. On or about June 2, 2009, Defendant PORTENER’S registration for the DBA Palm Springs
13
- Desert Media expired.
- 15. On March 11, 2011, Defendant PORTENER, on behalf of Palm Springs Desert Media, re-
- registered the DBA Travelhost of Palm Springs & Desert Cities with the Riverside County
- Clerk-Recorder.
- 16. On or about October 27, 2015, Plaintiff GOINS and Defendant PORTENER entered into 19
and executed a written Asset Purchase Agreement for the purchase of Defendant
20
PORTENER’S tangible and intangible business assets in relation to the publishing rights to
21
- Travelhost Magazine of Greater Palm Springs. A copy of the Asset Purchase Agreement is
- attached to this complaint as Exhibit “1” and is incorporated by this reference.
- 17. Pursuant to the Asset Purchase Agreement, Defendant PORTNER is obligated to transfer to
- PLAINTIFF(S) certain intellectual property, trade secrets, and client lists.
- 18. The client list (to be filed at a later date under seal) to be transferred pursuant to the Asset 27
Purchase Agreement is a voluminous and comprehensive list that includes certain contact
- names of over 3,500 clients. In addition, the client list contains categorical and targeted
- information, including: Contact Titles; Company Names; Primary Addresses, City, County,
- State, Zip, and Country; Primary Extensions; Phone and Fax Numbers; Mailing Addresses, 4
City, County, State, Zip, and Country; Web Addresses; Latitude and Longitude; Line of
5
Business; Own vs. Rent; Facility Size; Importer vs. Exporter; DBA; Subsidiary vs. Non-
6
- Subsidiary; Branch vs. Single Location; Manufacturing vs. Non-Manufacturing; Women
- Owned vs. Non-Women Owned; Minority Owned vs. Non-Minority Owned; Revenue;
- Total Amount of Employees; Year of Founding; Industry; etc.
- 19. On or about February 5, 2016, Plaintiff GOINS entered into and executed a written
- Associate Publisher Agreement (hereinafter referred to as “Travelhost Distribution 12
Agreement”) with Travelhost Network LLC (hereinafter, “Travelhost”). A copy of the
13
- Associate Publisher Agreement is attached to this complaint as Exhibit “2” and is
- incorporated herein by this reference. Travelhost is a limited liability company organized
- and existing under the laws of the state of Texas.
- 20. On or about February 8, 2016, Plaintiff GOINS, as sole owner, incorporated
- “GBGB MEDIA” with the Secretary of State of California. 19
21. On or about March 11, 2016, Palm Springs Desert Media’s March 11, 2011 registration for
20
the DBA Travelhost of Palm Springs & Desert Cities expired.
21
- 22. On or about March 31, 2016, Plaintiff GOINS closed escrow for the purchase of Palm
- Springs Desert Media. A copy of the bank closing and recording instructions is attached to
- this complaint as Exhibit “3” and is incorporated herein by this reference.
- 23. On or about April 8, 2016, Plaintiff GOINS registered the DBA Travelhost of Greater Palm
- Springs with the Riverside County Clerk-Recorder. 27
- On or about April 2016, PLAINTIFF(S)’ April/May 2016 magazine was issued that
- includes advertisements by PLAINTIFF(S)’ clients. A copy of the PLAINTIFF(S)
- April/May 2016 magazine issue is attached to this complaint as Exhibit “4” and is
- incorporated herein by this reference. 4
- PLAINTIFF(S) have spent a significant amount of time, effort, and money in the
5
acquisition, development, compilation, and maintenance of confidential information
6
- concerning its system, clients and business. Such confidential information incudes without
- limitation: the concept and process for identifying sales, the identity of PLAINTIFF(S)’
- existing and prospective clients, service plans developed for each client, the identities of
- key personnel at those clients, the special needs and characteristics of PLAINTIFF(S)’
- existing and potential clients, business policies and procedures, financial information 12
regarding PLAINTIFF(S), the identity of PLAINTIFF(S)’ suppliers, and other proprietary
13
- and confidential information concerning PLAINTIFF(S)’ operations, business
- opportunities, and existing and prospective clients. (This information, and other proprietary
- information and trade secrets, is, collectively, the “Confidential Information.”).
- 26. The Confidential Information was and is the product of PLAINTIFF(S)’ substantial time,
- labor, and expense, is not generally known to the public or to other persons who can obtain 19
economic value from its disclosure or use and is of substantial economic value to
20
PLAINTIFF(S). Accordingly, PLAINTIFF(S) have taken reasonable efforts to maintain the
21
- confidentiality of the Confidential Information, which efforts include, but are not limited
- to, restricting access to such Confidential Information only to those individuals with a
- “need to know,” restricting access to password entry, and advising PLAINTIFF(S)’
- independent contractors of the confidential and proprietary nature of such information.
- 27. PLAINTIFF(S) have developed a significant clientele that includes over twenty-five (25) 27
client contracts at an approximate value of $103,831.00.
- 28. On or about December 30, 2017, Plaintiff GOINS canceled the Travelhost Distribution
- Agreement. Upon cancellation of Plaintiff GOINS contract with Travelhost, PLAINTIFFS
- notified all of his clients that it will be discontinuing the placement of ads in Travelhost 4
magazine and will be placing them in a different magazine called XPLOR to which all
5
clients in question agreed.
6
- 29. By virtue of Defendant PORTENER’S prior ownership of certain trade secrets sold to
- Plaintiff GOINS, Plaintiff GOINS is informed and thereon alleges that Defendant
- PORTENER improperly used PLAINTIFF(S)’ Confidential Information.
- 30. Plaintiff GOINS acknowledged and agreed that files, records, documents and other matters
- relating to the Confidential Information he purchased from Defendant PORTENER for 12
transfer of ownership, particularly certain client lists and client contact information, would
13
- not be misused, or misappropriated.
- 31. PLAINTIFF(S) have spent and continue to spend a substantial amount of time, expense,
- and effort to develop and maintain its business relationships with its existing and
- prospective clients and suppliers, and the information regarding its business relationships
- with clients and suppliers is not generally known to the public or to other persons who 19
could obtain economic value from the disclosure or use of their identities. PLAINTIFF(S)
20
made and continues to make substantial efforts to preserve and maintain the confidentiality
21
- of such information. Defendant PORTENER has been aware of the identity of
- PLAINTIFF(S)’ clients and suppliers, and its existing and prospective business
- relationships with such clients and suppliers by virtue of his previous ownership of the
- assets sold and transferred to Plaintiff GOINS.
- 32. Notwithstanding Defendant PORTENER’S agreement to sell and transfer the 27
- thereon alleges that Defendant PORTENER materially violated California law,
- misappropriated PLAINTIFF(S)’ Client List and client contact information thereafter
- interfering with PLAINTIFF(S)’ contractual and business relations, with its clients and 4
suppliers, by, among other things:
5
- Soliciting PLAINTIFF(S)’ existing and prospective clients to terminate their
6
- existing and prospective business relationships with PLAINTIFF(S) in order to
- establish business relationships with Defendant PORTENER and DOES 1 through 9 20;
- b. Soliciting PLAINTIFF(S)’ existing and prospective suppliers to terminate their
- existing and prospective business relationships with PLAINTIFFS’ in order to 12
establish business relationships with Defendant PORTENER and DOES 1 through
13
14 20;
- c. Misusing, misappropriating, and disclosing PLAINTIFF(S)’ Confidential
- Information, as set forth more fully above;
- d. Informing PLAINTIFF(S)’ existing and prospective clients, all of the intention to
- begin working individually or as an altered version of Defendant PORTENER, and 19
concurrently therewith soliciting those existing and prospective clients to cease or
20
forego doing business with PLAINTIFF(S) so as to deprive PLAINTIFF(S)’ of
21
- monies to which it is entitled;
- e. Making knowingly false and disparaging statements of or concerning
- PLAINTIFF(S);
- f. Making false claims concerning PLAINTIFF(S) ownership of certain assets and
- other confidential proprietary information; 27
33. On or about March 3, 2018, Plaintiff GOINS became aware that several of PLAINTIFF(S)’
- clients were receiving emails (some made in person) where Defendant PORTENER was
- stating that PLAINTIFF(S) did not own their existing contracts. The proof of Defendant
- PORTENER’S impropriety is demonstrated by his new agreement with Travelhost which is 4
similar, if not identical, to the Asset Purchase Agreement Defendant PORTENER sold and
5
transferred to Plaintiff GOINS on or about October 27, 2015.
6
- 34. On or about March 26, 2018, PLAINTIFF(S) received correspondence from their clients
- that Defendant PORTENER is soliciting PLAINTIFF(S)’ clients by making false claims
- that PLAINTIFF(S)’ contract rights did not belong to Plaintiff GOINS. Furthermore,
- Defendant PORTENER is communicating false statements to PLAINTIFF(S)’ clients that
- PLAINTIFF(S) are making misrepresentations to their clients about having a registered 12
DBA.
13
- 35. As a result of Defendant PORTENER’S conduct, PLAINTIFF(S)’ lost over twenty-five
- (25) of their client contracts at an approximate value of $103,831.00. Plaintiff GOINS
- suspects that Defendant PORTENER will continue to impersonate PLAINTIFF(S)
- claiming that their clients’ contractual obligations are owed to Defendant PORTENER, and
- not PLAINTIFF(S). 19
36. On or about April 4, 2018, Plaintiff GOINS retained the law firm, Parker Stanbury LLP,
20
which sent Defendant PORTENER a cease and desist letter informing Defendant
21
- PORTENER that he is interfering with PLAINTIFF(S)’ contractual relations that they have
- maintained with its clients. A copy of PLAINTIFF(S)’ cease and desist letter (dated April
- 4, 2018) is attached to this complaint as Exhibit “5”, and is incorporated herein by this
- reference.
- 37. On or about April 30, 2018, Defendant DAVID BRYAN PORTENER filed for bankruptcy 27
with the U.S. Bankruptcy Court Southern District of California (San Diego). A copy of the
- Defendant PORTENER’S bankruptcy petition #: 18-01920-LT7 is attached to this
- complaint as Exhibit “6” and is incorporated herein by this reference.
- 38. On or about April 30, 2018, Plaintiff GOINS consulted and retained Cal-Lawyer PLC for 4
purposes of representation in this matter.
5
39. On or about May 2018, DEFENDANTS’ Travelhost magazine was issued that includes
6
- advertisements by PLAINTIFF(S)’ clients. A copy of DEFENDANTS’ May/June 2018
- magazine issue is attached to this complaint as Exhibit “7” and is incorporated herein by
- this reference.
- 40. On or about July 10, 2018, Defendant PORTENER was discharged for bankruptcy by the
- U.S. Bankruptcy Court Southern District of California (San Diego). (A copy of the U.S. 12
Bankruptcy Court Southern District of California (San Diego) Docket (Case No. 18-01920-
13
- LT7) is attached as to this Complaint as Exhibit “8” and is incorporated herein by this
- reference.)
- 41. On or about July 2018, DEFENDANTS’ July/August 2018 magazine was issued that
- includes advertisements by PLAINTIFF(S)’ clients. A copy of the DEFENDANTS’
- July/August 2018 magazine issue is attached to this complaint as Exhibit “9” and is 19
incorporated herein by this reference.
20
42. On or about September 2018, DEFENDANTS’ magazine September/October 2018
21
- magazine was issued that includes advertisements by PLAINTIFF(S)’ clients. A copy of
- the DEFENDANTS’ September/October 2018 magazine issue is attached to this complaint
- as Exhibit “10” and is incorporated herein by this reference.
- On or about October 16, 2018, the attorney of record, deposed Mr.
- Sam Harris, a witness in this action. A copy of the signed original transcript from the
deposition of Sam Harris that occurred on October 16, 2018 is attached to this complaint as
- Exhibit “11” and is incorporated herein by this reference. 4
- On December 6, 2018, PLAINTIFF filed this AMENDED VERIFIED COMPLAINT
5
FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DAMAGES;
6
- DEMAND FOR A JURY TRIAL.
- Further, in 2019, PLAINTIFF entered into an agreement with Travel Host of Greater Palm Springs as outlined in the letter of intent. However, Defendant David Bryan Portner (“PORTENER”) shared information about the PLAINTIFF’s clients to other defendants, provide consulting and product review on an ongoing basis and other activities.
- Defendants Garry, Judy, JNS, Travel host Palm Springs contacted clients for ad placement and billing.
- Defendants Ellis/Patel sold advertising to my existing clients, shared negative information about my business to the general public during public event, contacted my existing distribution sites about magazine placement among other activities.
- Defendants Pen/Palette managed customer relationships, communication with advertisers, shared information about my business with the public.
- However, Travelhost Palm Springs dissolved in November of 2021 due to disagreements between the PLAINTIFF (S) and Defendants.
· FIRST CAUSE OF ACTION
(Misappropriation of Trade Secrets Pursuant to Cal. Civ. Code § 3426 et seq. and Cal. Bus. &
· Prof. Code § 16607 Against Defendant and DOES 1 through 20)
- 47. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 45
- of this Complaint as though fully set forth herein.
12
47. On or around October 26, 2015, Plaintiff GOINS and Defendant PORTENER executed a
13
- written Asset Purchase Agreement.
- 48. Pursuant to the Asset Purchase Agreement, Defendant PORTENER agreed to sell for
- valuable consideration, in the amount of $365,000.00, thereby transferring his ownership
- rights and interests of certain business assets to Plaintiff GOINS. Assets being sold
- included, without limitation, inventory, equipment, trade fixtures, leasehold improvements, 19
contract rights, business records, software, and software licenses, transferable
20
governmental licenses and permits, other licenses, franchises, goodwill, covenant not to
21
- compete, trade secrets, patents, intellectual property, trade name, customer lists, marketing
- materials, telephone and fax numbers, web sites, URL’s email addresses, sales order
- backlog and rights to official concierge map/calendar and domain name and website
- BestPalmSprings.com. All of PLAINTIFF(S)’ trade secret information was and still is vital
- to PLAINTIFF(S)’ continued operations. 27
49. As per the Asset Purchase Agreement, Plaintiff GOINS is the owner of certain valuable
- trade secrets including, inter alia, customer lists and client contact information.
- 50. Plaintiff alleges that Defendant PORTENER and Does 1 through 20, are using the
- Confidential Information obtained improperly from PLAINTIFF(S), and without its
consent, to compete against PLAINTIFF(S). Defendant PORTENER also shared the information with other Defendants and used it to for gain by carrying out other business activities.
5
51. The Confidential Information being used by Defendant PORTENER and Does 1 through
6
- 20 is highly confidential and derives substantial economic value by not being known to the
- public, and is specifically not known to PLAINTIFF(S)’ competitors.
- 52. PLAINTIFF(S) undertake all reasonable efforts to maintain the secrecy of its Confidential
- Information. Such Confidential Information constitutes trade secrets within the meaning of
- § 3426.1 of the Cal. Civ. Code. 12
53. The aforementioned conduct constitutes misappropriation of PLAINTIFF(S)’ trade secrets
13
- and violates §§ 3426 et seq. of the Cal. Civ. Code. As a direct and proximate result of
- Defendant PORTENER’S and Defendant DOES’ 1 through 20 conduct, PLAINTIFF(S)
- have suffered and will continue to suffer damages to its business and goodwill in an
- amount not yet determined.
- 54. Pursuant to § 3246.2 of the Cal. Civ. Code, PLAINTIFF(S) are entitled to an injunction to 19
prohibit Defendant PORTENER and all other Defendants from using, disclosing, and/or
20
otherwise benefitting from PLAINTIFF(S)’ trade secrets, to eliminate any commercial
21
- advantage Defendant PORTENER and to all other Defendants which may otherwise derive
- from their misappropriation, and to require Defendant PORTENER and all other DOE
- Defendants to immediately return to PLAINTIFFS all information, documents, and any
- other materials which they have wrongfully obtained.
- 55. In performing the conduct described herein, Defendant PORTENER and all other DOE 27
Defendants acted willfully, and maliciously, intending to injure PLAINTIFF(S) and to
- wrongfully advantage themselves at PLAINTIFF(S)’ expense and detriment. Pursuant to §
- 3426.3(c) of the Cal. Civ. Code, PLAINTIFFS are entitled to an award of punitive and
- exemplary damages against Defendants, and each of them, sufficient to punish and deter 4
them from engaging in such conduct in the future, in an amount to be ascertained at trial.
5
Pursuant to § 3426.4 of the Cal. Civ. Code.
SECOND CAUSE OF ACTION
(Tortious Interference with Contractual Relations Against Defendant and DOES 1 through
9 20)
- 56. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 55
- of this Complaint as through fully set forth herein. 12
57. Contracts existed between PLAINTIFF(S) and their customers, clients, customer’s partners,
13
- and/or other business partners, and investors.
- 58. DEFENDANTS knew of the existence of those contracts.
- 59. PLAINTIFF(S) are informed and believe that Defendants intentionally and/or negligently
- engaged in acts or conduct which prevented PLAINTIFF(S)’ performance of those
- contracts and/or caused the termination and/or breaches of said contracts with 19
PLAINTIFF(S).
20
- PLAINTIFF(S) are informed and believe that DEFENDANTS employed wrongful means
21
- to interfere with these contractual relationships and/or induce the termination and/or breach
- of contracts with DEFENDANTS. These wrongful means are averred above, and include,
- but are not limited to, soliciting PLAINTIFF(S)’ customers, clients, customer’s partners,
- and/or other business partners, and investors; and Defendant PORTENER’S defamatory
- statements about PLAINTIFF(S)’ and/or its owners. 27
- DEFENDANTS intended to prevent PLAINTIFF(S)’ performance of those contracts and/or
- to cause the termination and/or breach of said contracts with PLAINTIFF(S).
- 62. PLAINTIFF(S) are informed and believe that DEFENANTS’ acts and conduct to interfere
- with PLAINTIFF(S)’ contractual relations caused damages to PLAINTIFF(S), such amount 4
to be determined according to proof at trial, but which is in excess of $25,000.00.
5
63. DEFENDANTS committed the acts averred maliciously, fraudulently, and oppressively,
6
- with the wrongful intention of injuring PLAINTIFF(S), from an improper and evil motive
- amounting to malice, and in conscious disregard to PLAINTIFF(S)’ rights. PLAINTIFF is
- thus entitled to recover punitive damages from DEFENDANTS in the amount according to
- proof at trial.
- 64. PLAINTIFF(S) therefore request relief as set forth in the Prayer for Relief at the end of this 12
Complaint.
13
THIRD CAUSE OF ACTION
- (Intentional Interference with Prospective Economic Advantage Against Defendant and
- DOES 1 through 20)
- 65. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 64
- of this Complaint as though fully set forth herein.
- 66. PLAINTIFF(S) have valid existing and prospective economic interests with its clients. 19
67. PLAINTIFF(S) allege on information and belief that DEFENDANTS willfully and
20
deliberately committed the wrongful acts alleged herein with the intent to harm
21
- PLAINTIFF(S)’ financially and to induce PLAINTIFF(S)’ existing clients and/or
- prospective clients to sever their present and prospective business relationships with
- PLAINITFF(S).
- 68. As a proximate result of such wrongful acts, PLAINTIFFS have suffered injury and
- damage to its business and goodwill in an amount to conform to proof at trial, but in no 27
event less than the jurisdictional minimum of this Court.
- 69. PLAINTIFF(S) are informed and believes, and thereon allege, that the acts of
- DEFENDANTS, in interfering with PLAINTIFF(S)’ contractual relations with its clients
- and prospective clients were willful and malicious and designed to obstruct and otherwise 4
interfere with the successful operation of PLAINTIFF(S)’ business. PLAINTIFFS therefore
5
are entitled to recover exemplary and punitive damage in a sum sufficient to punish said
6
- DEFENDANTS.
- 70. Pursuant to Cal. Code of Civ. Proc. § 526, PLAINTIFF(S) are entitled to an injunction
- restraining DEFENDANTS, and all persons acting in concert with it, from engaging in
- such further unlawful acts.
11 FOURTH CAUSE OF ACTION
- (Negligent Interference with Prospective Economic Advantage Against Defendant and DOES
and 1 through 20)
13
- 71. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 70
- of this Complaint as though fully set forth herein.
- 72. PLAINTIFF(S) are informed and believe and thereon allege that DEFENDANTS should
- have known of these existing and prospective economic relationships and of the future
- economic benefit or advantage to PLAINTIFF(S) from these relationships. DEFENDANTS 19
knew or should have known that, if he did not act with due care, his actions would interfere
20
with these relationships and cause PLAINTIFF(S) to lose, in whole or in part, the probable
21
- future economic benefit or advantage of the relationships.
- 73. DEFENDANTS negligently interfered with and disrupted PLAINTIFF(S)’ business
- relationships and prospective economic advantage with its existing and prospective clients
- as alleged throughout this Complaint.
- 74. As a direct and proximate result of DEFENDANTS’ unlawful conduct, PLAINTIFF(S)’ 27
- disrupted.
- 75. As a further and proximate result of DEFENDANTS’ conduct, PLAINTIFF(S) have been
- damaged and will continue to be damaged in a sum to be proven at trial. 4
76. Pursuant to Cal. Code of Civ. Proc. § 526, GBGB is entitled to an injunction restraining
5
DEFENDANTS, and all persons acting in concert with it, from engaging in such further
6
- unlawful acts.
8 FIFTH CAUSE OF ACTION
(Violation of Unfair Competition Pursuant to Cal. Bus. & Prof. Code § 17200 Against
9 Defendant and DOES 1 through 20)
- 77. PLAINTIFFS hereby incorporate by reference the allegations in paragraphs 1 through 76 of
- this Complaint as though fully set forth herein. 12
- On or about March 3, 2018, and continuing thereafter, DEFENDANTS, as part of their
13
- business practice, fraudulently induced PLAINTIFF(S)’ clients by falsely claiming that
- PLAINTIFF(S)’ contracts were with another entity other than PLAINTIFF(S), which
- PLAINTIFF(S) suspect is an attempt to convert or highjack PLAINTIFF(S)’ clients.
- Moreover, PLAINTIFF(S) have been informed by several of its clients that
- DEFENDANTS are falsely claiming that PLAINTIFFS are misrepresenting the truth and 19
integrity of its business practices.
20
- By reason of DEFENDANTS’ fraudulent, deceptive, unfair, and other wrongful conduct as
21
- herein alleged, said DEFENDANTS have violated Cal. Bus. & Prof. Code § 17200 et seq.
by consummating an unlawful, unfair, and fraudulent business practice, designed to deprive
- PLAINTIFF(S) of its contractual interests with its existing and prospective clients.
- 80. DEFENDANTS’ acts of unfair competition have caused and continue to cause irreparable
- injury to the value of PLAINTIFF(S)’ business, goodwill, and reputation. 27
81. Pursuant to Cal. Bus. & Prof. Code § 17203, PLAINTIFF(S)’ are entitled to an injunction
- restraining DEFENDANTS, and all persons acting in concert with it, from engaging in
- such further acts of unfair competition.
- 82. By reason of the foregoing, PLAINTIFF(S) have suffered and continues to suffer damages 4
in a sum which is, as yet unascertained. Thus PLAINTIFF(S) sought leave of court to amend
5
the complaint and demonstrated the true nature and extent of damages have been ascertained.
6
7 SIXTH CAUSE OF ACTION
(California Statutory False Advertising Pursuant to Bus. & Prof. Code § 17500 Against
8 Defendant and DOES 1 through 20)
- 83. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 82
- of this Complaint as though fully set forth herein.
- 84. PLAINTIFF(S) are informed and believe and thereupon allege that DEFENDANTS 12
disseminated advertisements that expressly represented that PLAINTIFF(S)’ contracts were
13
- not owned by PLAINTIFF(S) which caused the relevant consumers to falsely believe that
- DEFENDANTS owner of those contracts.
- 85. PLAINTIFF(S) are informed and believe and thereupon allege that DEFENDANTS’
- advertisements include materially misleading and deceptive information and omitted
- material information, as discussed through this complaint, for purposes of inducing 19
customers to purchase or avail themselves of DEFENDANTS’ advertisement services.
20
86. As a direct and proximate result of DEFENDANTS’ conduct complained of herein,
21
- PLAINTIFF(S) have suffered and will continue to suffer economic injury and damages in
- the following manner: PLAINTIFF(S) have lost, and will continue to lose, revenue and
- clients as a direct and proximate result of DEFENDANTS’ unfair competition and false
- advertising as herein stated.
- 87. As a direct and proximate result of DEFENDANTS’ conduct complained of herein, 27
PLAINTIFF(S) have suffered and will continue to suffer general damages, economic loss
28
- and special damages in an amount to be proved at trial.
- 88. DEFENDANTS’ conduct was knowing, willful, malicious, fraudulent and oppressive,
- PLAINTIFF(S) are thus entitled to punitive and exemplary damages in an amount to be 4
provided at trial.
5
89. Pursuant to Cal. Bus. & Prof. Code § 17535, PLAINTIFF(S) are entitled to an injunction
6
- restraining DEFENDANTS, and all persons acting in concert with it, from engaging in
- such further acts of false advertising.
9 SEVENTH CAUSE OF ACTION (Conversion Against Defendant and DOES 1 through 20)
10
- 90. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 89
- of this Complaint as though fully set forth herein.
- 91. PLAINTIFF(S) are, and at all times relevant herein was, the owner of or entitled to
- immediately possess the value of over twenty-five (25) client contracts valued in excess of 15
$103,831.00.
16
92. On or about March 3, 2018, DEFENDANTS have substantially and wrongfully acted in
17
- interfering with PLAINTIFF(S)’ client contracts for DEFENDANTS’ own use in so much
- that DEFENDANTS have assumed control or ownership of PLAINTIFF(S)’ contracts.
- 93. As a result of DEFENDANTS’ acts of conversion, PLAINTIFF(S)’ have been damaged in
- the sum or sums to be proven at trial, including all compensatory damages. PLAINTIFF(S)
- are further entitled to compensation for the time and money expended in pursuit of the 23
property.
24
95. In doing the acts herein alleged, DEFENDANTS’ acted with oppression, fraud, malice, and
- in conscious disregard of the rights of PLAINTIFF(S), and PLAINTIFF(S) are therefore
- entitled to punitive damages according to proof at the time of trial.
3 EIGHTH CAUSE OF ACTION
- (Fraud and Intentional Misrepresentation)
- 96. PLAINTIFF(S) hereby incorporate by reference the allegations in paragraphs 1 through 95
- of this Complaint as though fully set forth herein.
- 97. PLAINTIFF(S) are informed and believe and thereon allege that Plaintiff GOINS was 8
induced to purchase assets alleged herein, and continuing thereafter, Plaintiff GOINS was
9
led to believe that the representations provided in the Asset Purchase Agreement made by
10
- DEFENDANTS and delivered by DEFENDANTS as alleged herein, were true, namely:
- a. Contract Rights;
- b. Business Records;
- c. Franchises; 15
- Goodwill;
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- Trade Secrets;
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- f. Intellectual Property;
- g. Trade Name;
- h. Customer Lists; and
- i. Rights to Official Concierge Map/Calendar and Domain Name and Website
- BestPalmSprings.com 23
98. When DEFENDANTS, and each of them, made the above representations, DEFENDANTS
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knew them to be false and made these representations with the intention to deceive and
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- defraud Plaintiff GOINS and to induce Plaintiff GOINS to act in reliance on these
- representations in the manner herein alleged and pay for valuable consideration in the
- amount of $365,000.00. Further, DEFENDANTS, and each of them, took affirmative steps
- to conceal the true facts from Plaintiff GOINS.
- 99. Plaintiff GOINS, at the time these representations were made by DEFENDANTS, and each
- of them, and at the time Plaintiff GOINS took actions herein alleged, was unaware of the 4
falsity of DEFENDANTS’ representations and believed them to be true. In reliance on
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these representations, Plaintiff GOINS was induced to and did pay $365,000.00, as
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- valuable consideration, in exchange for certain assets as alleged herein.
- 100. Had Plaintiff GOINS known the actual facts, Plaintiff GOINS\ would not have
- entered and/or executed the Asset Purchase Agreement or paid $365,000.00 in exchange
- for certain assets as alleged herein.
- 101. Plaintiff GOINS’ reliance on the representations of DEFENDANTS was justified 12
because DEFENDANTS represented that they possessed certain assets that include, but are
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- not limited to, trade secrets, client lists, and lucrative business prospects.
- 102. As a proximate result of the fraudulent conduct of DEFENDANTS as herein
- alleged, Plaintiff GOINS incurred damages in that Plaintiff GOINS was induced to pay in
- the amount of $365,000.00, all by reason of which Plaintiff GOINS has been damaged in at
- least the sum in excess of the jurisdictional amount of this Court, and additional amounts 19
according to proof at time of trial.
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103. The aforementioned conduct of DEFENDANTS, and each of them, was an
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- intentional misrepresentation, deceit, or concealment of a material fact known to each of
- the DEFENDANTS with the intention on the part of the DEFENDANTS of thereby
- depriving Plaintiff GOINS of property or legal rights or otherwise causing injury, and was
- despicable conduct that subjected Plaintiff GOINS to a cruel and unjust hardship and
- conscious disregard of Plaintiff GOINS’ rights, so as to justify an award of exemplary and 27
punitive damages.
1 PRAYER FOR RELIEF
- WHEREFORE, PLAINTIFF(S) pray for relief against all Defendants, and each of them, as
- follows:
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- For a preliminary injunction and permanent injunction enjoining each Defendant and their
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agents, servants, representatives, attorneys, partners, successors, predecessors, assigns, and
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- all persons acting for, with, by, through, or under them, and each of them, directly or
- indirectly:
- a. Prohibiting Defendant PORTENER and DOES 1 through 20 from using, disclosing
- or otherwise transferring PLAINTIFF(S)’ Confidential Information, and any other
- materials taken from PLAINTIFF(S) without its consent, and to require Defendant 12
PORTENER and Does 1 through 20 to immediately return all such information and
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- materials to PLAINTIFF(S);
- b. Interfering with PLAINTIFF(S) contractual obligations and prospective economic
- advantage with its platform retailers, distributors, licensors, licensees, and
- consumers;
- c. Prohibiting DEFENDANTS from competing against PLAINTIFF(S) for so long as 19
it is reasonably necessary to prevent each of them from reaping and/or gaining any
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unfair advantage or other benefit as a direct or proximate result of their unlawful
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- conduct, including, but not limited to, Confidential Information and/or trade secrets
- wrongfully misappropriated from PLAINTIFF(S) by DEFENDANTS;
- d. Prohibiting DEFENDANTS from soliciting business from any clients, suppliers,
- investors, vendors or potential clients, suppliers, investors or vendors and/or derived
- as a result of their unlawful conduct, including, but not limited to, Confidential 27
Information and/or trade secrets wrongfully misappropriated from PLAINTIFF(S)
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by DEFENDANTS;
- Causing further likelihood of confusion or injury to the business, reputation, and goodwill of PLAINTIFF(S); and
- Falsely advertising or implying that PLAINTIFF(S) do not own contracts with their existing clients, or making false representations that PLAINTIFF(S) are making misrepresentations about their ownership rights and interests in said contracts.
- DEFENDANTS be directed to file with this Court and serve on PLAINTIFF(S) within ten
(10) days after the service of the injunction herein, a report in writing under oath, setting forth in detail the manner and form in which DEFENDANTS have complied therewith.
- PLAINTIFF(S) recover an award of DEFENDANTS’ gains, profits, and advantages derived by DEFENDANTS from their acts.
- PLAINTIFF(S) recover, pursuant to Cal. Civ. Code § 3426.2(b), royalties in lieu of an injunction.
- PLAINTIFF(S) be awarded restitutionary relief, in accordance with applicable law.
- PLAINTIFF(S) actual damages, and its costs, trebled in accordance with applicable law.
- PLAINTIFF(S) be awarded exemplary and punitive damages in accordance with applicable law.
- Pursuant to Cal. Civ. Code § 3426.4, PLAINTIFF(S) be awarded its reasonable attorneys’ fees and expenses.
- PLAINTIFF(S) be awarded all such other and further relief as this Court deems just and proper.
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2 DATED: 3
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1 JURY TRIAL DEMAND
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PLAINTIFF(S) hereby demand a trial by jury of all issues so triable.
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- DATED:
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1 VERIFICATION
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I, John Goins, sole owner of GBGB Media, am a Plaintiff in the above-entitled action. I have read
- the foregoing and know the contents thereof. The same is true of my own knowledge, except as to
- those matters which are therein alleged on information and belief, and as to those matters, I believe
- it to be true.
- I declare under penalty of perjury that the foregoing is true and correct and that this declaration
- was executed at , California. 8
9 DATED: 10
11 John Goins, sole owner of GBGB Media
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