Motion to Strike Initial Pleading in BOOTUP VENTURES, LLC, et al vs. TARUN GAUR, et al| Trellis.Law

On November 19, 2018 a Motion-Secondary was filed involving a dispute between Boostcare, Bootup Ventures, Llc, Dial2Buy.Com, Llc, Gaur, Tarun, Jinigram, Llc, Kumar, Ravi, Tringapps Inc, and Dial2Buy.Com, Llc, Does 1-20, Gaur, Tarun, Jinigram, Llc, Kumar, Ravi, Tringapps Inc, for (06) Unlimited Breach of Contract/Warranty in the District Court of San Mateo County.

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1 AKAY LAW
DOUGLAS N. AKAY, STATE BAR #131011
2 dnakay@akaylaw.com 2/16/2021
ELSA BERRY, STATE BAR #262868
3 eberry@akaylaw.com
100 Pine Street, Suite 2700
4 San Francisco, California 94111
(415) 764-1999 (telephone)
5 (415) 764-1994 (facsimile)

6 Attorneys for Defendants and Cross-complainants,
TARUN GAUR, JINIGRAM, LLC, and DIAL2BUY.COM, LLC
7

8 IN THE SUPERIOR COURT OF CALIFORNIA FOR THE

9 COUNTY OF SAN MATEO

10 UNLIMITED JURISDICTION

11 Case No. 18CIV06232
BOOTUP VENTURES, LLC, et al.
SAN FRANCISCO, CALIFORNIA

12 CROSS-COMPLAINANTS’ OPPOSITION TO
Plaintiffs, CROSS-DEFENDANTS BOOTUP VENTURES
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(415) 764-1999

13
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AND BOOSTCARE, DBA BOOTUP WORLD’S
v. MOTION TO STRIKE PORTIONS OF CROSS-
14 COMPLAINANTS’ FIRST AMENDED CROSS-
TARUN GAUR, et al. COMPLAINT.
15 Defendants. COMPLAINT FILED: NOVEMBER 19, 2018
16 AND RELATED CROSS-COMPLAINT
DATE: March 1, 2021
17 TIME: 2:00 p.m.
DEPT: 23
18 JUDGE: Hon. V. Raymond Swope

20 I. INTRODUCTION
21 The Court should overrule Cross-defendants BootUp Ventures and BootUp World’s Motion
22 to Strike Portions of Cross-complainants’ First Amended Cross-complaint (“FACC”) because:
23 (A) Attorney’s fees are recoverable “as allowed by law”: (1) as “attorney’s fees” under
24 Code of Civil Procedure sections 1029.8(a), 1021.5, 1021 and 1033.5; and (2) at
25 common law, as “damages”under causes of action based on fraud;
26 (B) Punitive damages are recoverable under Civil Code section 3294(a), because BootUp
27 Ventures’ obligation does not arise from any agreement between BootUp and Cross-
28 complainants. It arises from BootUp‘s fraud and violation of statutory duties as it is
1 not a registered broker dealer, and therefore, fund raising, fund finding and other

2 financial services are not within the scope of its registered trademark.

3 (C) BootUp’s Motion to strike any references to BootUp’s Registered Trademark from

4 the FACC is baseless because: (1) BootUp’s Registered Trademark and services

5 associated therewith are in dispute and relevant (see Section 3 and 4 of the

6 Memorandum of Understanding which is the subject of BootUp’s action against

7 Tarun Gaur and two third party entities); (2) Contrary to BooTup’s assertion, there is

8 no legal prohibition from referring to U.S.P.T.O’s publications regarding the

9 description of services associated with a registered trademark because there is a direct

10 association between the mark and the services specified in a U.S.P.T.O application.

11 Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal. App. 4th 313,
SAN FRANCISCO, CALIFORNIA

12 334–35; and (3) The services associated with BootUp’s registered trademark is a
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13 question of facts to be resolved at trial, based on the evidence which BootUp will
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14 have the opportunity to rebut and/or object to. This is not the function of a motion to

15 strike to address the accuracy of the facts and to weigh the probative value of the

16 evidence in support therewith.

17 Cross-complainants otherwise concede the following with regards to the Prayer for Relief in

18 the FACC:

19 (1) At Paragraphs 1 and 2, page 36, lines 21 and 24, of the FACC’s Prayer for Relief, the

20 phrase “and that Gaur be restored all consideration” has been left as a result of a

21 clerical error, and should be stricken;

22 (2) At Paragraph 8, page 37, line 22 of the FACC’s Prayer for Relief, the terms “by

23 contract” only, should be stricken;

24 (3) Punitive damages are not recoverable under the FACC’s Twelfth Cause of Action for

25 Violation of Bus. & Prof. Code, section 17200 et seq. and the FACC’s Seventh

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1 through Eleventh Causes of Action for Breach of Contract, but are otherwise

2 recoverable under the other Causes of Action pursuant to the language of the FACC.

3 II. STATEMENT OF FACTS

4 This action arises out of a contract, the Memorandum of Understanding (“MOU”), between

5 BootUp Ventures (“BootUp”) and Tarun Gaur. Although Jinigram, LLC and Dial2Buy.Com are not

6 parties to the MOU, BootUp brought this action seeking enforcement of the MOU against them.

7 Cross-complainants’s FACC alleges that: (1) Dial2Buy. Com, LLC and Jinigram, LLC have

8 no contractual obligations to BootUp; (2) BootUp misrepresented its expertises and scope of services

9 to induce Gaur to enter into a contract; (3) BootUp’s fraudulent scheme and false pretense that it

10 performs fund raising and find finding services is for the purpose of acquiring equity interests in

11 startups; (4) the MOU is a compilation of three different agreements with the common denominator
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12 that each of them is invalid; (5) BootUp never provide financial services to Tarun Gaur or any of the
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13 Cross-complainants; (6) BootUp cannot lawfully performed the financial services described under
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14 the MOU because BootUp is not a registered broker dealer; (7) BootUp’s trademark does not

15 encompass “investment management services” or any other financial services (6) BootUp used Tarun

16 Gaur’s services, expertise and profile, as its own, to enhance its platform and apparent scope of

17 services. See RJN, Ex. A [FACC, ¶¶ 26 through 75].

18 III. LEGAL ARGUMENT

19 Standard of Review

20 A motion to strike either moves to strike any “irrelevant, false or improper matter inserted in

21 any pleading,” or to strike any pleading or part thereof “not drawn or filed in conformity with the

22 laws of this state, a court rule or order of a court.” (CCP §436(a), (b)). As with demurrers, the

23 grounds for a motion to strike must appear on the face of the pleading under attack, or from matter

24 which the court may judicially notice. CCP §437.

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1 A motion to strike challenges the legal sufficiency of the complaint’s allegations, which are

2 assumed to be true and which are given a liberal construction. Blakemore v. Superior Court (2005)

3 129 Cal.App.4th 36, 53; Velez v. Smith (2006) 142 Cal.App.4th 1154, 1163.

4 As a general rule, motions to strike “should not be granted unless it is clear that the matter to

5 be striken could have no possible bearing on the subject matter of the litigation.” Neveau v. City of

6 Fresno (C.D. Cal. 2005) 392 F.Supp.2d 1159, 1170. Motions to strike are disfavored and “will

7 usually be denied unless the allegations have no possible relation to the controversy and may cause

8 prejudice to one of the parties.” Friedman v. 24 Hour Fitness USA, Inc. (C.D. Cal. 2008) 580

9 F.Supp.2d 985, 990; Code Civ. Proc. §452.

10 A. BootUp’s Motion To Strike Fails Because Attorney’s Fees Are Recoverable: (1) As
“Attorney’s Fees” Under CCP §§1029.8(a), 1021.5, 1021, And 1033.5; And (2) At
11 Common Law, As “Damages” Under The FACC’s Causes Of Action Based On Fraud.
SAN FRANCISCO, CALIFORNIA

12 The Court should overrule BootUp’s motion to strike the portions of the FACC’s prayer for
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13 relief that request attorney’s fees because attorney’s fees are recoverable under CCP §§ 1029.8(a),
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14 1021.5, 1021, 1033.5, and at common law as “damages” under the FACC’s causes of action alleging

15 fraud, and therefore, are available to Cross-claimants.

16 Indeed, BootUp misrepresents the Court’s decision in Stout v. Turney (1978) 22 Cal.3d 718,

17 730 to argue that attorney’s fees are not recoverable on a claim for fraud. See Motion to Strike, at

18 6:14-16. This is inaccurate. In Stout v. Turney , the Court addressed the assessment of damages for

19 fraud in the sale of real property and the award of attorneys’ fees under Civ. C. §1717. In Stout v.

20 Truney, and held, in relevant part:

21 Plaintiffs claim on their cross-appeal that the trial court erroneously refused to allow
them attorney's fees under the provisions of Civil Code section 1717, which provides
22 that such fees may be awarded in "any action on a contract." A tort action for fraud
arising out of a contract is not, however, an action "on a contract" within the meaning
23 of this section. (Walters v. Marler (1978) 83 Cal.App.3d 1, 27-28[.]; McKenzie v.
Kaiser-Aetna (1976) 55 Cal.App.3d 84, 89-90[.]
24

25 Stout v. Turney (1978) 22 Cal. 3d 718, 729.

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1 That case does not state that attorney’s fees are not recoverable on a fraud claim. Instead, it

2 holds that attorneys’ fees incurred in an action for fraud are not recoverable under Civ. C. §1717

3 because an action for fraud is not an action “on a contract.”

4 Here, Stout v. Turney has no application because Cross-complainants’s request for attorney’s

5 fees does not rely on Civ. C. § 1717. Instead, paragraph 8 of the FACC’s prayer for relief states:

6 “[f]or an award of attorneys fees as allowed [. . .] by law.” See FACC, Prayer for Relief, Para. 8,

7 page 37, line 22.

8 Furthermore, BootUp’s motion to strike Cross-complainants’ prayer for attorney’s fees fails

9 to recognize that the FACC’s prayer for award of attorney’s fee relies on stare decisis and statutory

10 theories.

11 In Brandt v. Superior Court, the Supreme Court held that attorney’s fees are recoverable as
SAN FRANCISCO, CALIFORNIA

12 damages resulting from a tort in the same way that medical fees would be part of the damages in a
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13 personal injury action. See Brandt v. Superior Court (1985) 37 Cal.3d 813, 817. In such cases there
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14 is no recovery of attorney fees qua attorney fees.” See Brandt v. Superior Court (1985) 37 Cal.3d

15 813, 817–818; Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.

16 The FACC’s fifth and sixth causes of action for fraud in the inducement and for promissory

17 fraud also allow for the recovery of attorney’s fees as damages. Attorney’s fees are available to

18 Cross-defendants statutorily under CCP §§ 1029.8(a), 1021.5, 1021 and 1033.5.

19 CCP § 1021 states, in relevant part:

20 Except as attorney’s fees are specifically provided for by statute, the measure and
mode of compensation of attorneys [. . .] is left to the agreement, express or implied,
21 of the parties.

22 CCP §1029.8(a) empowers a trial court to award “all costs and attorney’s fees” against “[a]ny

23 unlicensed person who causes injury or damages to another person as a result of performing services

24 for which a license is required.” California law prohibits any “broker-dealer” from effecting any

25 transaction in, or inducing] or attempting to induce the purchase or sale of, any security unless the

26 broker-dealer is licensed. See Corp. Code, §25210. A “broker-dealer” is “any person engaged in the

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1 business of effecting transactions in securities in this state for the account of others or for [his] own

2 account.” See Corp. Code, §25004(a). And a “security” is defined by reference to a long list of

3 investment vehicles (Corp. Code, §25019), although that list is meant to be “illustrative” rather than

4 exhaustive. See People v. Graham (1985) 163 Cal.App.3d 1159, 1164. Given this approach, “the

5 ‘critical question . . . is whether [the] transaction [at issue] falls within the regulatory purpose of the

6 law regardless of whether it involves an instrument [or vehicle] which comes within the literal

7 language of the definition.” See People v. Figueroa (1986) 41 Cal.3d 714, 735.

8 The purpose of this licensing law is to protect the public against the imposition of

9 unsubstantial, unlawful and fraudulent stock and investment schemes and the securities based

10 thereon. People v. Figueroa (1986) 41 Cal.3d 714, 736; Siry Inv., L.P. v. Farkhondehpour (2020) 45

11 Cal. App. 5th 1098, 1141–42.
SAN FRANCISCO, CALIFORNIA

12 CCP §1021.5 authorizes an award of fees to a “successful party” in “any action which has
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13 resulted in the enforcement of an important right affecting the public interest if: (a) a significant
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14 benefit – whether pecuniary or nonpecuniary – has been conferred on the general public or a large

15 class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by

16 one public entity against another public entity, are such as to make the award appropriate, and (c)

17 such fees should not in the interest of justice be paid out of the recovery, if any. CCP §1021.5;

18 Sandlin v. McLaughlin (2020) 50 Cal. App. 5th 805, 827–28. Whether BootUp is an unregistered

19 “broker-dealer” is a question of fact. A motion to strike is not the proper vehicle to “strike” facts

20 from the FACC, merely because BootUp disputes them.

21 Under CCP §1033.5, a prevailing party may recover attorney’s fees only when authorized by

22 law, contract, or statute. Here, the FACC alleges that BootUp misrepresented that fund raising, fund

23 finding, investment management and other financial services were within the scope of BootUp’s

24 expertise and trademark. BootUp’s website states: “400+ Million Raised.” See RJN, Ex. A [FACC ¶

25 78, Exh. B]. In reality BootUp is not a registered broker-dealer, and could not lawfully perform

26 broker dealer-related services. See RJN, EX. A [FACC, ¶ 64, Exhibit A].

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1 In light of the foregoing, BootUp’s Motion to Strike the FACC’s Prayer for award of

2 attorney’s fees fails because the FACC sufficiently pleads that attorney’s fees are recoverable as

3 damages and statutorily, under CCP §§ 1029.8(a), 1021.5, 1021 and 1033.5.

4 B. BootUp’s Motion Fails Because Punitive Damages Are Recoverable In Causes Of
Action For Fraud, Promissory Fraud And All Causes Of Action Predicated On Fraud
5 And Statutory Duty Violations Under Civil Code §3294(a).

6 BootUp also misapplies the Court’s decision in Myers Bldg. Indus., Ltd. v. Interface Tech.,

7 Inc. (1993) 13 Cal.App.4th 949 in support of its argument that punitive damages re not available for

8 claims for breach of an obligation arising out of a contract. See BootUp’s MTS, at 6:7-7. While this

9 statement is accurate, it is also incomplete because in Myers Bldg. Indus., Ltd. v. Interface Tech.,

10 Inc., the court, citing Civ.C. §3294(a), the Court also held that:

11 In an action for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of
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12 oppression, fraud, or malice, the plaintiff, in addition to actual damages, may recover
damages for the sake of example and by way of punishing the defendant.
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Myers Bldg. Indus., Ltd. v. Interface Tech., Inc. (1993) 13 Cal.App.4th 949, 960, as modified on
14
denial of reh'g (Mar. 26, 1993).
15
While Cross-complainants concede that punitive damages are not recoverable in an action for
16
breach of contract, unless provided for in the contract. Crogan v. Metz (1956) 47 Cal.2d 398, 405,
17
they may, however, be awarded where a defendant fraudulently induces the plaintiff to enter into a
18
contract. Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 549; Horn v. Guaranty
19
Chevrolet Motors (1969) 270 Cal.App.2d 477, 484. The words “oppression, fraud, or malice” in Civ.
20
C. §3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages.
21
Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 336; Horn v. Guaranty
22
Chevrolet Motors (1969) 270 Cal.App.2d 477, 484; Glendale Fed. Sav. & Loan Assn. v. Marina
23
View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.
24
The application of this rule, which permits punitive damages where both fraud and breach of
25
contract exist, is only consistent with the underlying policy for the application of punitive damages.
26
Civ. C. §3294; Walker v. Signal Companies, Inc. (1978) 84 Cal.App.3d 982, 996. For instance,
27

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1 California courts, including the Supreme Court, have held that in an action for rescission in which

2 tortious conduct on the part of the Defendant is proven satisfying the requirement of Civ.C. §3294(a)

3 as to “oppression, fraud or malice,” the Plaintiff is entitled to seek punitive damages in addition to

4 any other relief afforded in accordance with the broad provision for damages and other relief set

5 forth in Civ. C. §1692.

6 Civ. C. §3294(a) provides as follows:

7 In an action for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of
8 oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may
recover damages for the sake of example and by way of punishing the defendant.
9
Civ. C. §1692 provides in pertinent part as follows:
10
When a contract has been rescinded in whole or in part, any party to the contract may
11 seek relief based upon such rescission by (a) bringing an action to recover any money
or thing owing to him by any other party to the contract as a consequence of such
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12 rescission or for any other relief to which he may be entitled under the circumstances
or (b) asserting such rescission by way of defense or cross-complaint.
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The limiting language of Civ. C. §3294(a), “an action for the breach of an obligation not
14
arising from contract,” has been interpreted by the California Supreme Court. The Court has
15
explained the specific applicability of that language to actions which, facially, bear a relationship to
16
one for breach of contract but which, upon further analysis, are in fact not such actions.
17
In the case of Ward v. Taggart (1959) 51 Cal.2d 736, the California Supreme Court stated the
18
following:
19
“The word “contract” is used in this section [§3294(a)] in its ordinary sense to mean
20 an agreement between the parties, not an obligation imposed by law despite the
absence of any such agreement. Taggart's obligation does not arise from any
21 agreement between him and plaintiffs. It arises from his fraud and violation of
statutory duties. His fraud is not waived, for it is the very foundation of the
22 implied-in-law promise to disgorge. (See Corbin, Waiver of Tort and Suit In
Assumpsit, 19 Yale L.J. 221, 243-246.) The promise is purely fictitious and
23 unintentional, originally implied to circumvent rigid common law pleading. It was
invoked not to deny a remedy, but to create one “for the purpose of bringing about
24 justice without reference to the intention of the parties.” 1 Williston, Contracts (rev.
ed.) p. 9; see Desny v. Wilder, 46 Cal.2d 715, 735 [299 P.2d 257].) Since Taggart's
25 obligation for his fraud does not arise from contract but is imposed by law, the
judgment for exemplary damages clearly falls within section 3294[.]
26

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1 Courts award exemplary damages to discourage oppression, fraud, or malice by
punishing the wrongdoer [.]. Such damages are appropriate in cases like the present
2 one, where restitution would have little or no deterrent effect, for wrongdoers would
run no risk of liability to their victims beyond that of returning what they wrongfully
3 obtained. Haigler v. Donnelly, 18 Cal. 2d 674, 680-682 [.]; Taylor v. Wright, 69 Cal.
App. 2d 371, 384-386 [.]; Hartzell v. Myall, 115 Cal. App. 2d 670, 676-678 [.];
4 Foster v. Keating, 120 Cal. App. 2d 435, 454-455 [.]; Devers v. Greenwood, 139 Cal.
App. 2d 345, 350 [.].
5
Ward v. Taggart (1959) 51 Cal.2d 736, 742-734 (Emphasis as in the original)
6
The foregoing fundamental decision by the California Supreme Court as to the meaning and
7
application of the limiting language of §3294(a) has been adopted and applied by numerous courts in
8
many reported cases following the Ward decision. The analytic key to all of these decisions is the
9
perception that the obligation to make restitution in a rescission action, including payment of
10
consequential damages as provided in §1692, is not a creature of contract but, rather, springs from a
11
common law and statutory duty imposed on (cross-)defendants in causes of action for rescission,
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12
cancellation and fraud who have been found to have committed fraud or other statutorily described
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conduct giving rise to the right to rescind or cancel.
14
Punitive damages are recoverable in those fraud actions involving intentional, but not
15
negligent, misrepresentations. Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 790; Branch v.
16
Homefed Bank (1992) 6 Cal.App.4th 793, 799 [no punitive damages recoverable for negligent
17
misrepresentation]; CCP § 3294; Alliance Mortgage. Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1241,
18
900 P.2d 601, 610.
19
Here, the FACC pleads all the elements of fraud in the inducement and promissory fraud, and
20
states facts that BootUp’s misrepresented the scope of its services and services associated to its
21
Registered Trademark, and acted as an unregistered broker dealer. See FACC, ¶¶ 26 through 76.
22
C. BootUp’s Motion To Strike “All Allegations Concerning The Trademark That Is
23 Registered To BootUp Ventures” Fails Because BootUp’s Registered Trademark And
The Services Associated Therewith Are The Subject Of The MOU, And As Such, They
24 Are Relevant.

25 BootUp seeks to prohibit Cross-complainant from making any references to BootUp’s

26 registered trademark in their FACC. BootUp already demurred to the same, with a similar argument.

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1 This argument is meritless in both instances because the scope of services associates with

2 BootUp’s registered trademark is relevant.

3 BootUps’ registered trademark is relevant because it is the subject of a license to Gaur for the

4 “use [of] the Licensed Mark, in connection with investment management services”. See FACC,

5 Exhibit A [MOU, Section 3 (“Trademark and Trade Name License”)]. It is also relevant because

6 BootUp represents the services associated with its trademark in Section 4 of the MOU (“Transfer of

7 Equity Positions.”). See FACC, Exhibit A.

8 The FACC pleads multiple facts which concur to establish that BootUp’s misrepresented the

9 scope of services associated with its trademark. FACC, ¶¶ 39, 41, 46, 57, 58, 59, 64, 140. Among

10 those facts, the FACC refers BootUp’s description of its services, published on the U.S.P.T.O’s

11 website. While BootUp described a broad range of services in its trademark application, it left
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12 financial services out. This bears some probative value, regardless of the U.S.P.T.O’s classification
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13 of services. The Lanham Act defines a trademark or service mark as a “word, name, symbol, or
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14 device, or any combination thereof” that is used by a person “to identify and distinguish” that

15 person’s goods or services from the goods or services of others and to indicate the source of the

16 goods or services. (15 U.S.C. § 1127.) “Implicit in this statutory definition is a requirement that there

17 be a direct association between the mark ... and the services specified in the application, i.e., that it

18 be used in such a manner that it would be readily perceived as identifying such services.” See In re

19 Moody's Investors Service, Inc. (T.T.A.B.1989) 13 U.S.P.Q.2d 2043, 2047; accord Self–Realization

20 Fellowship Church v. Ananda (9th Cir.1995) 59 F.3d 902, 906–907; Franklin Mint Co. v. Manatt,

21 Phelps & Phillips, LLP (2010) 184 Cal. App. 4th 313, 334–35.

22 BootUp’s Motion to strike all references to the U.S.P.T.O.’s publication should be denied

23 because there is not valid ground in support thereof. A motion to strike is not a vehicle to strike

24 relevant facts from a pleading simply because they are inconvenient to a party.

26 ///

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1 IV. CONCLUSION

2 In light of the foregoing, Defendant and Cross-complainants respectfully request this Court to

3 overrule BootUp Ventures, LLC and BootUp World’s Motion to Strike, or in the alternative to grant

4 Cross-complainants leave to amend their First Amended Cross-complaint, on the grounds that:

5 (A) Attorney’s fees are recoverable “as allowed by law”: (1) as “attorney’s fees” under CCP §§

6 1029.8(a), 1021.5, 1021 and 1033.5; and (2) at common law, as “damages”under causes of

7 action based on fraud;

8 (B) Punitive damages are recoverable under Civil Code section 3294(a), because BootUp

9 Venture’s obligation does not arise from any agreement between BootUp and Cross-

10 complainants. It arises from BootUp Ventures’ fraud and violation of statutory duties as it is

11 not a registered broker dealer, and therefore, fund raising, fund finding and other financial
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12 services are not within the scope of its registered trademark.
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13 (C) U.S.P.T.O.’s publications regarding BootUp’s Registered Trademark and services associated
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14 therewith are relevant because: (1) BootUp licensed its registered trademark to Gaur for use

15 “in connection with investment management services” (see FACC, Ex. A [MOU, Section 3]);

16 (2) BootUp misrepresents that fund finding and fund raising services, and other financial

17 services are associated with its trademark (see FACC, Ex. A [MOU, Section 4]); (3) There is

18 a direct association between the mark and the services specified in a U.S.P.T.O application.

19 Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal. App. 4th 313, 334–35;

20 and (4) BootUp’ s scope of services is a disputed question of facts which cannot be

21 determined in the context of a motion to strike.

22 Cross-complainants otherwise concede the following with regards to the Prayer for Relief of

23 the FACC:

24 (1) At Paragraphs 1 and 2, page 36, lines 21 and 24, of the FACC’s Prayer for Relief, the phrase

25 “and that Gaur be restored all consideration” has been left as a result of c clerical error, and

26 should be stricken;

28 X:\AS\GAUR1901\PLD\MOTIONS\MTS II_OPP\OPP_MTS II_EXE.wpd Case No. 18CIV06232
Cross-Complainants’ Opp. To Cross-Defendants’ MTS_FACC, Page 10
1 (2) At Paragraph 8, page 37, line 22 of the FACC’s Prayer for Relief, the terms “by contract”

2 only, should be stricken; and

3 (3) Punitive damages are not recoverable under the FACC’s Twelfth Cause of Action for

4 Violation of Bus. & Prof. Code, section 17200 et seq. and the FACC’s Seventh through

5 Eleventh Causes of Action for Breach of Contract, but are otherwise recoverable under the

6 other Causes of Action pursuant to the language of the FACC.

7 Respectfully Submitted,

8 Dated: February 15, 2021 AKAY LAW

10 By:
Douglas N. Akay, Attorneys for Defendants and
11 Cross-complainants,
TARUN GAUR, JINIGRAM, LLC, and
SAN FRANCISCO, CALIFORNIA

12 DIAL2BUY.COM, LLC
WWW.AKAYLAW.COM
(415) 764-1999

13
AKAY LAW

28 X:\AS\GAUR1901\PLD\MOTIONS\MTS II_OPP\OPP_MTS II_EXE.wpd Case No. 18CIV06232
Cross-Complainants’ Opp. To Cross-Defendants’ MTS_FACC, Page 11

Case Info

Judge

Greenberg, Susan Track Judge’s New Case

Case No.

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Document Filed Date

February 16, 2021

Case Filing Date

November 19, 2018

County

Parties

AKAY, DOUGLAS N. Attorneys for Defendants
AKAY, DOUGLAS N. Attorney for the Defendant
ARGUWAL, MUKUL Cross Defendant
BIRNIK, ANDREAS Cross Defendant
BOOSTCARE Cross Defendant
BOOSTCARE Plaintiff
BOOTUP VENTURES, LLC Cross Defendant
BOOTUP VENTURES, LLC Plaintiff
DIAL2BUY.COM, LLC Cross Complainant
DIAL2BUY.COM, LLC Defendant
DOES 1-20 Defendant
FRIEND, KATHLEEN B Attorney
FRIEND, KATHLEEN B Attorney for the Defendant
GAUR, TARUN Cross Complainant
GAUR, TARUN Defendant
JINIGRAM, LLC Cross Complainant
JINIGRAM, LLC Defendant
KUMAR, RAVI Cross Complainant
KUMAR, RAVI Defendant
NEMECEK, DAVID P., JR Attorneys for Plaintiffs
NEMECEK, DAVID P., JR Attorney for the Plaintiff
ROES 1 THROUGH 100, INCLUSIVE Cross Defendant
TRINGAPPS INC Cross Complainant
TRINGAPPS INC Defendant
VAANHOLT, MARCO TEN Cross Defendant
Elsa Beker Berry Attorneys for Defendants
Timothy Lupinek Attorneys for Defendants
Michael Sebree Attorney
Kathleen Ebrahimi Attorney

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Motion-Secondary: BOOTUP VENTURES, LLC, et al vs. TARUN GAUR, et al

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