lithocrete v. single eagle et. al

8/12/2019 Lithocrete v. Single Eagle et. al.

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Case No. 1

COMPLAINT

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Kit M. Stetina (SBN 82,977)Stephen Z. Vegh (SBN 174,713)STETINA BRUNDA GARRED & BRUCKER75 Enterprise, Suite 250Aliso Viejo, CA 92656

Email: [email protected]: (949) 855-1246Fax: (949) 855-6371

Attorneys for PlaintiffLITHOCRETE, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

LITHOCRETE, INC., a California

corporation

Plaintiff

vs.

SINGLE EAGLE, INC., a California

corporation doing business as CONCRETECONTRACTORS INTERSTATE, and

DOES 1 through 5, inclusive

Defendants

Case No.

COMPLAINT FOR DAMAGESAND EQUITABLE RELIEFRESULTING FROM:

1. False Patent Marking2. False Advertising Under the

Lanham Act

3. Trade Libel;4. Intentional Interference With

Plaintiff's Prospective Economic

Advantage;

5. Injunctive ReliefDEMAND FOR JURY TRIAL

Plaintiff, Lithocrete, Inc., for its Complaint against Single Eagle, Inc. dba

Concrete Contractors Interstate state and allege as follows:

PARTIES

1. Plaintiff, Lithocrete, Inc. (Lithocrete or Plaintiff) is a corporation

'14 CV0685 DHBMMA


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Case No. 2

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organized and existing under the laws of the State of California, and having

principal place of business at 829 West 17th

Street, Suite 5, Costa Mesa, Californi

92627.

2. Upon information and believe, Defendant Single Eagle, Inc. is acorporation organized and existing under the laws of the state of California and i

doing business as Concrete Contractors Interstate (CCI), having a principal place o

business at 12599 Stotler Court, Poway, California 92064.

3. The true names and capacities of the Defendants named herein as DOES1-5, whether individual, corporate, associate, or otherwise, are unknown t

Lithocrete, who therefore sues said Defendants by said fictitious names. Lithocrete iinformed and believes, and thereon alleges, that each of the Defendants designated

herein as DOE is legally responsible for the events and happenings hereinafte

alleged and legally caused injury and damages proximately thereby to Lithocrete a

herein alleged. Lithocrete will seek leave to amend the Complaint when the tru

names and capacities of said DOE Defendants have been ascertained. CCI an

DOES 1-5 are herein collectively referred to as Defendants).

4. Lithocrete is informed and believes, and on that basis alleges, that eachof the Defendants participated in and is in some manner responsible for the act

described in this Complaint and any damages resulting therefrom.

5. Lithocrete is informed and believes, and on that basis alleges, that eachof the Defendants has acted in concert and participation with each other concerning

each of the claims in this Complaint.

6. Lithocrete is informed and believes, and on that basis alleges, that eachof the Defendants were empowered to act as the agent, servant and/or employees o

each of the other Defendants, and that all the acts alleged to have been done by each

of them were authorized, approved and/or ratified by each of the other Defendants.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction of this action under 28 U.S.C


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Case No. 3

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1331, 1338(a) as this action involves claims arising under the U.S. Patent Act o

1952, as amended, specifically 35 U.S.C. 292 for false patent marking. This action

also involves claims arising under the Lanham Act, specifically 15 U.S.C. 1125(a) fo

false advertising.

8. CCI is subject to personal jurisdiction in this district because it offers itdecorative concrete installations in California and in this district.

9. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(band (c) because CCI is subject to personal jurisdiction in this district and resides in

this district, and because a substantial part of the events or omissions giving rise to

the claim(s) occurred in this district, namely the marketing and offering of falselymarked and falsely advertised decorative concrete installations in this district.

BACKGROUND OF THE CONTROVERSY

10. The Patent Act of 1952, 35 U.S.C. 292(a), prohibits falsely markingupon, affixing to, or using in advertising in connection with any unpatented article

the word patent or any word or number importing that the same is patented, when

no patent has issued for the purpose of deceiving the public.

11. Under 35 U.S.C. 292(b), a person who has suffered a competitivinjury as a result of a violation of this section may file a civil action in a district cour

of the United States to recover damages.

12. In the instant case, CCI makes and sells multiple seeded aggregateproducts that indicate on its website, www.seicci.comthe following: To show ou

commitment to architects and general contractors budgets, we developed and

patented ECS-AG, our own equal to Lithocrete . In fact, no such patent exists.

13. In the absence of a patent having been issued for Defendants ECS-AGproduct, Defendant has no legal right to claim the benefits of novelty and exclusivity

attendant to the award of a patent by the United States Patent Office.

14. Lithocrete has been and is currently in the business of concretconstruction, as well as developing innovative installations and methods associated


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Case No. 4

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therewith.

15. Lithocrete is the owner of United States Utility Patent Nos. 6,016,635(Surface Seeded Aggregate and Method of Forming the Same) and 6,033,146

(Glass Chip Lithocrete and Method of Use of Same). Copies of such patents ar

attached hereto as Exhibits 1 and 2, respectively. (Collectively, Plaintiffs patent

shall hereinafter be referred to as the Lithocrete Patents.)

16. Lithocrete has expended considerable sums in exerting every effort tomaintain the highest standard of quality of the decorative concrete installations and

methods practiced and offered under the Lithocrete Patents, and has created valuabl

goodwill among the purchasing public under the Lithocrete Patents and the Lithocretmark.

17. Defendants false representations regarding its unpatented ECS-AGdecorative concrete being an equivalent substitute to Plaintiffs patent Lithocrete ha

resulted in bids by Plaintiff or Plaintiffs licensees for construction projects whose

specifications called for the installation of Lithocrete decorative concrete being

rejected in favor of Defendants proposed installation of its ECS-AG product.

18. Plaintiff has also suffered damage to its reputation for quality decorativeconcrete installations, as Defendants unpatented ECS-AG product is not an

equivalent substitute to Plaintiffs patented Lithocrete concrete installations. Indeed

Defendants falsely marked ECS-AG is believed to be of inferior quality to Plaintiff

patented Lithocrete decorative concrete installations. Once the inferior quality o

Defendants products becomes evident to the public, the claim of equivalence o

Defendants inferior unpatented product to that of Plaintiffs patented Lithocret

installations will deceive and mislead the public into believing that Plaintiffs own

decorative concrete is also of inferior quality.

FIRST CLAIM FOR RELIEF

(False Patent Marking Pursuant to 35 U.S.C. 292)

19. Paragraphs 1-18, above, are realleged and incorporated by reference as i


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Case No. 5

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set forth in full.

20. CCI manufactures, advertises and sells surface seeded aggregatconcrete installations.

21. CCI marks that its ECS-AG products is patented when in fact, no suchpatent exists.

22. CCI knows that its product identified as ECS-AG is not patented, buutilizes the patented designation in a wrongful manner pursuant to 35 U.S.C. 292.

23. By claiming a patent for their ECS-AG where none exists, CCI sought todeceive the public in order to gain a commercial advantage over Lithocrete by

inflating consumer demand for a product that is represented to the public as beingunique, not legally available from competitors and in particular Lithocrete, and an

equivalent if not superior substitute for Plaintiffs own patented Lithocret

installations.

24. Plaintiff has lost clients and construction bids to CCI and consequentlylost revenue and profits as a result of Defendants false marking.

SECOND CLAIM FOR RELIEF

(False Advertising Pursuant to 15 U.S.C. 1125(a))

25. Paragraphs 1-24, above, are realleged and incorporated by reference as iset forth in full.

26. 15 U.S.C. 1125(a)(1) prohibits false advertising in the form of falsstatements by any person who, on or in connection with any goods or services.

.uses in commerce any. . .false or misleading description of facts, or false o

misleading representation of fact, whichin commercial advertising or promotion

misrepresents the nature, characteristics [or] qualities. . .of his or her or anothe

persons goods, services, or commercial activities. . .

27. CCIs advertising of its ECS-AG as a patented product that is anequivalent substitute to Lithocrete intends to convince potential contractors to accep

Defendants bids for the installation of decorative concrete rather than Plaintiff


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Case No. 6

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patented Lithocrete concrete installations.

28. Lithocrete and ECS-AG are competing decorative concrete installations29. The false and disparaging representations made by Defendan

concerning the quality, efficacy, and/or functionality, of the ECS-AG concret

product as compared to Plaintiffs Lithocrete was disseminated through its on-lin

advertising. Defendants false advertising reached consumers and contractors o

decorative concrete installations, including those in this jurisdiction, interested in

installing decorative concrete for construction projects.

30. Lithocrete is informed and believes and thereon alleges that therepresentations and characterizations made by Defendant concerning the equivalenceof ECS-AG to patented Lithocrete concrete installations as well as the falsehood o

Defendants patent claim was intentionally false and disparaging of Plaintiff

Lithocrete, Plaintiffs other decorative concrete installations, and Plaintiffs busines

generally.

31. Plaintiff is informed and believes and thereon alleges that Defendantfalse advertising has induced consumers and contractors to have installed Defendant

ECS-AG product rather than Plaintiffs Lithocrete and other of Plaintiffs decorative

concrete installations, thereby causing pecuniary loss and special damages to

Plaintiff.

32. Based on CCI having previously been advised of Plaintiffs Lithocrettrademark and the Lithocrete Patents, along with the uniqueness and value Plaintif

assigned to its patented decorative concrete installations, Plaintiffs requirement tha

contractors license from it the right to use the Lithocrete trademark and/or practice

the Lithocrete Patents, the quality, efficacy, and/or functionality of the ECS-AG

concrete product as compared to Plaintiffs Lithocrete, and the absence of any

enforceable patent issued for the ECS-AG product and related methods, Defendan

knew that the representations of fact made in their advertising of the ECS-AG

product were false, and that customers and contractors would be induced to purchase


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Case No. 7

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the ECS-AG product rather than Plaintiffs Lithocrete, thereby causing pecuniary los

and special damages to Plaintiff. Defendants false and misleading representation

concerning the absence of an issued patent for the ECS-AG product and the quality

efficacy, and/or functionality of ECS-AG as compared to the Lithocrete decorative

concrete installations were made with malice and intentional disregard of the quality

reputation, and good will associated with Plaintiffs patented Lithocrete, Plaintiff

other decorative concrete installations, and Plaintiffs business generally.

33. As a result of the expenditure of significant time, money and effort, thepublic recognizes Plaintiffs decorative concrete installations, and in particula

Lithocrete, as meeting the highest standards of quality, efficacy, and functionality oa decorative concrete installation. Defendants false and misleading representation

about ECS-AG and Lithocrete has thereby damaged the positive reputation and good

will associated with Lithocrete decorative concrete as well as the good will o

Plaintiffs decorative concrete business, including but not limited to, the value of it

Lithocrete trademarks, Registration Nos. 2,358,183 and 1,879,239, as well as the

Lithocrete Patents. The Lanham Act specifically prohibits the type of fals

commercial advertising practiced by Defendant and is intended to protect Plaintif

from such unfair competition.

THIRD CLAIM FOR RELIEF

(Trade Libel)

34. Paragraphs 1-33, above, are realleged and incorporated by reference as iset forth in full.

35. Plaintiff has developed a positive reputation and substantial goodwilwith its customers for its decorative concrete installations, and in particular Lithocret

throughout California, the United States, and the world. As a result of th

expenditure of significant time, money and effort, the public recognizes Plaintiff

patented decorative concrete installations, including but not limited to Lithocrete, a

meeting the highest standards of quality, efficacy, and/or functionality for thei


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Case No. 8

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decorative concrete.

36. Lithocrete is informed and believes and thereon alleges that Defendanbegan to publish on-line commercial advertising of their ECS-AG decorative concret

that claimed patent rights in their own equal to Lithocrete. Defendant

representations and characterization of the ECS-AG in their on-line publication i

intentionally false and disparaging of the quality, efficacy, and/or functionality o

Plaintiffs patented decorative concrete installations, and in particular Lithocrete.

37. Plaintiff is informed and believes and thereon alleges that Defendanton-line publication at its website www.seicci.com induced current and potentia

customers and contractors of projects on which Plaintiff or Plaintiffs licensees bidthe installation of its Lithocrete decorative concrete to not purchase or rejec

Plaintiffs Lithocrete and other decorative concrete installations, thereby causing

pecuniary loss in the form of lost revenue and lost profits to Plaintiff.

38. Plaintiff is informed and believes and thereon alleges that Defendanmade these false and disparaging statements about Plaintiffs Lithocrete intentionally

knowing that such statements were false based on Defendants prior awareness o

Plaintiffs Lithocrete trademark and the Lithocrete Patents, the quality, efficacy

and/or functionality of Lithocrete, the uniqueness and value Plaintiff assigned to it

patented decorative concrete installations, Plaintiffs requirement that contractor

license from it the right to use the Lithocrete trademark and/or practice the Lithocrete

Patents, and the absence of any patent issued to Defendant.

39. Plaintiff is further informed and believes and thereon alleges thaDefendant has sold and will continue to sell their ECS-AG decorative concrete

installations to current and potential customers and contractors to whom Plaintiff ha

sold or would have sold and installed its Lithocrete decorative concrete, but fo

Defendants false and misleading statements.

40. Defendants actions constitute trade libel under California law, whichhas caused injury to Plaintiffs business in general and the reputation of Plaintiff


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Case No. 9

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patented Lithocrete decorative concrete installations in particular.

41. As a proximate result of Defendants trade libel, Plaintiff has sustainedgeneral damages to its reputation in an amount presently unascertained bu

reasonably believed to exceed the jurisdictional requirements of this judicial district

said amounts to be set forth at trial according to proof.

42. As a further proximate result of Defendants trade libel, Plaintiff hasustained incidental and special damages, including lost business opportunities to sel

and install its patented decorative concrete installations, including but not limited to

Lithocrete, to current and potential customers in an amount presently unascertained

but reasonably believed to exceed the jurisdictional requirements of this judiciadistrict, said amounts to be set forth at trial according to proof.

43. Defendants false and disparaging characterizations and representationconcerning the equivalence of ECS-AG to Lithocrete was done with malice and

oppression, with Defendants knowledge and for the purpose and with the intended

effect of causing Plaintiff damage. Plaintiff is therefore entitled to and hereb

requests exemplary and punitive damages, according to proof.

44. Defendant threatens, and unless restrained will, continue to engage in thwrongful and illegal acts described herein. As a result, Plaintiff will suffer a grea

and irreparable injury, for which damages would not afford adequate relief, in tha

said damages would not adequately compensate for the injury to the reputation

goodwill, and customer base of Plaintiffs decorative concrete business, and in

particular Plaintiffs patented Lithocrete. Defendants conduct, if allowed t

continue, would inevitably result in damage to Plaintiffs business. Accordingly

Plaintiff also seeks permanent injunctive relief against Defendant for its misconduct

including but not limited to precluding Defendant from claiming it has a patent on th

ECS-AG product, that ECS-AG is an equivalent substitute to Lithocrete and from

making any further disparaging reference to Plaintiffs patented Lithocrete decorativ

concrete.


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Case No. 10

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FOURTH CLAIM FOR RELIEF

(Intentional Interference with Prospective Economic Advantage )

45. Redline repeats and realleges paragraphs 1 through 44, inclusive, andincorporates same herein by reference.

46. As a result of Defendants Roger actual knowledge of the falsity and thmisleading nature of Defendants representations and characterizations concerning

the patent issued for the ECS-AG product and it being a substitute equivalent t

Lithocrete, in view of Defendants prior awareness of Plaintiffs Lithocrete trademark

and the Lithocrete Patents, and the uniqueness, quality, efficacy, and/or functionality

of the patented Lithocrete decorative concrete, Defendant had a duty andresponsibility to refrain from falsely disparaging Plaintiffs concrete installations.

47. Plaintiff is informed and believes and thereon alleges that Defendanengaged in the conduct and other unlawful acts complained of herein with th

knowledge, malicious intent, and sole purpose of interfering with Plaintiff

advantageous business relations and rights and interests thereunder with existing and

potential customers and contractors wishing to install Plaintiffs patented Lithocrete


48. Plaintiff is informed and believes and thereon alleges that as a result oDefendants interference with Plaintiffs advantageous economic relations, Defendan

has precluded Plaintiff or Plaintiffs authorized licensees from consummating

additional sales of its decorative concrete installations, including but not limited to

Lithocrete, to existing customers and contractors for whom it has previously installe

such decorative concrete as well as potential customers aware of Plaintiff

decorative concrete installations who would have likely purchased such installation

including Lithocrete. Plaintiff has accordingly been deprived of receiving revenu

and generating profits from the installations of its decorative concrete to current and

potential customers.

49. As a proximate result of Defendants intentional interference, Plaintif


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Case No. 11

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has sustained general damages to its reputation in an amount presently unascertained

but reasonably believed to exceed the jurisdictional requirements of this judicia

district, said amounts to be set forth at trial according to proof.

50. As a further proximate result of Defendants intentional interferencePlaintiff has sustained incidental and special damages in the reduction of busines

opportunities install its decorative concrete installations, including but not limited to

Lithocrete, for current and potential customers and contractors in a total amoun

presently unascertained but reasonably believed to exceed the jurisdictiona

requirements of this judicial district, said amounts to be set forth at trial according t

proof.51. Defendants false and disparaging characterizations and representation

concerning Plaintiffs Lithocrete was done with malice and oppression, with

Defendants knowledge of such falsity and for the purpose and with the intended

effect of interfering with Plaintiffs business relationships. Defendant was aware o

Plaintiffs business relationships and that of its licensees with current and potentia

customers and contractors having previously bid on the installation of decorativ

concrete installations alongside and in competition with Plaintiff. Plaintiff i

therefore entitled to and hereby requests exemplary and punitive damages, according

to proof.

52. Defendant threatens, and unless restrained will, continue to engage in thwrongful and illegal acts described herein. As a result, Plaintiff will suffer a grea

and irreparable injury, for which damages would not afford adequate relief, in tha

said damages would not adequately compensate for the injury to the reputation

goodwill, and customer base of Plaintiffs business, and in particular the patented

Lithocrete decorative concrete. Defendants conduct, if allowed to continue, woul

inevitably result in damage to Plaintiffs business. Accordingly, Plaintiff in additio

to damages also seeks permanent injunctive relief against Defendant for thei

misconduct, including but not limited to precluding Defendant from claiming it has a


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Case No. 12

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patent on the ECS-AG product, that ECS-AG is an equivalent substitute to Lithocret

and from making any further disparaging reference to Plaintiffs patented Lithocrete


FIFTH CLAIM FOR RELIEF

(Injunction)

53. Plaintiff repeats and realleges paragraphs 1 through 52, inclusive, andincorporates same herein by reference.

54. Defendants wrongful conduct as described herein above, unless anduntil enjoined and restrained by an order of this Court, will cause great and

irreparable injury to Plaintiff in that the monetary damages will not provide anadequate remedy at law and such injuries are likely to continue unless such action

are enjoined immediately. Otherwise, Plaintiff will suffer irreparable harm and injur

as it relates to the reputation, customer recognition, and goodwill associated with it

decorative concrete business.

55. Accordingly, Plaintiff prays for a permanent injunction againsDefendant with respect to its false statements about the issuance of a patent for it

ECS-AG product and the disparagement of Plaintiffs patented Lithocrete, including

but not limited to enjoining Defendant from claiming it has a patent on the ECS-AG

product, that ECS-AG is an equivalent substitute to Lithocrete, and from making any

further disparaging reference to Plaintiffs patented Lithocrete decorative concrete.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands that judgment be entered against th

Defendant as follows:

ON THE FIRST CLAIM FOR RELIEF

1. That the Court declare, adjudge, and decree that CCI violated 35 U.S.C.292 by falsely marking its products as patented in advertising its products;

2. That, pursuant to 35 U.S.C. 292, Lithocrete recover its reasonableattorneys fees;


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Case No. 13

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3. General and special damages to be proven at trial, to the extent allowed bylaw;

4. For Injunctive relief to the extent allowed by law;5. For such other and further relief as the Court may deem just and proper.

ON THE SECOND CLAIM FOR RELIEF


2. For Injunctive relief to the extent allowed by law;3. For attorneys fees and costs to the extent allowed by law;4.

For exemplary damages or punitive damages to the extent allowed by law;

5. For such other and further relief as the Court may deem just and proper.ON THE THIRD CLAIM FOR RELIEF


2. For Injunctive relief to the extent allowed by law;3. For attorneys fees and costs to the extent allowed by law;4. For exemplary damages or punitive damages to the extent allowed by law;5. For such other and further relief as the Court may deem just and proper.

ON THE FOURTH CLAIM FOR RELIEF


2. For Injunctive relief to the extent allowed by law;3. For attorneys fees and costs to the extent allowed by law;4. For exemplary damages or punitive damages to the extent allowed by law;5. For such other and further relief as the Court may deem just and proper.

ON THE FIFTH CLAIM FOR RELIEF

1. For Injunctive relief to the extend allowed by law;2. For attorneys fees and costs to the extent allowed by law;


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Case No. 14

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3. For such other and further relief as the Court may deem just and proper.ON ALL CAUSES OF ACTION

1. That the Defendant, its officers, agents, servants, employees, and al

persons in concert or participation with the Defendant be preliminarily and

permanently enjoined from:

A. falsely disparaging Plaintiffs business, Lithocrete decorative concrete, o

any other of Plaintiffs concrete installations;

B. falsely marking its decorative concrete products with a patent, includin

but not limited to the ECS-AG;

B. selling or marketing decorative concrete products or related services thatends to deceive, mislead, or misrepresent to the public the quality, efficacy

functionality and/or equivalence of Defendants decorative concrete installations to

Plaintiffs Lithocrete;

C. otherwise competing unfairly with Plaintiffs decorative concret

installation business;

2. That the Defendant be directed to file with this Court and serve on Plaintif

within (30) days after service of the injunction, a report in writing, under oath, setting

forth the detailed manner and form in which Defendant has complied with the

injunction.

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Case No. 15

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3. That the Defendant be required to account for and pay over to Plaintiff al

gains, profits, and advantages realized from the sale of its ECS-AG product or related

services resulting from the false patent marking, false advertising, and disparaging

statements made against Plaintiffs patented decorative concrete installations.

Dated: March 25, 2014 STETINA BRUNDA GARRED & BRUCKER

By: s/Kit M. Stetina

Kit M. Stetina

Stephen Z. Vegh

Attorneys for Plaintiff

LITHOCRETE, INC.


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Case No. 16

STETI

NA

BR

U

N

D

A

G

A

R

RED

&

BR

U

CK

ER

DEMAND FOR JURY TRIAL

Plaintiff, Lithocrete, Inc., hereby demands a jury trial in this action.

Dated: March 25, 2014 STETINA BRUNDA GARRED & BRUCKER

By: s/Kit M. Stetina

Kit M. Stetina

Stephen Z. Vegh

Attorneys for Plaintiff

LITHOCRETE, INC.

lithocrete v. single eagle et. al

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