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Sample Exemplars
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TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-
Meet the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-
Motion for Preliminary Injunction - Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . 5-15
Complaint for Common Law Unfair Competition . . . . . . . . . . . . . . . . . . . . . . . . . 16-20
Complaint for Breach of Covenant Not to Solicit Employees . . . . . . . . . . . . . . . . . 21-25
Expert Witness Retention Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Other Exemplars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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Library of California Business Litigation Forms is designed as a full library of
sample documents for your litigation matter. This collection of 125+ sample
documents is intended to cover most common types of matters litigators face
when representing either a plaintiff or a defendant.
Forms are included for general claims such as breach of contract, often-pleaded
common counts, declaratory relief, promissory estoppel and fraud, as well as
specific claims for common business torts and statutory violations. You will
find documents regarding theft of trade secrets, interference with economic
advantage, trademark and copyright infringement, breach of confidence,
breach of fiduciary duty, insurance bad faith, securities fraud and shareholder
derivative suits, corporate dissolution, unfair business practices, and antitrust
violations. Also included is a compendium of affirmative defenses frequently
raised in business litigation.
In addition to pleadings, the collection includes common collateral documents.
These include letters demanding preservation of evidence, a joint defense
agreement, an expert retention agreement, stipulated protective orders, a
temporary restraining order, injunctions, offers of compromise, and a form of
judgment. Also included are basic discovery exemplars, such as deposition
notices, interrogatory requests, document requests, requests for admissions,
expert disclosures, and exemplar declarations to seek discovery beyond the
statutory limits, and general objections to discovery requests. Each document
includes all of the necessary elements to state a cause of action, a claim for
relief, or an affirmative defense. Often included are specific facts, giving form
to the types of background allegations that could be included, and serving as a
checklist of the types of allegations that can support a claim or defense.
INTRODUCTION
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Willian n. Hebert
William N. Hebert is a partner in the San Francisco office of Calvo Fisher & Jacob. Mr.
Hebert represents clients in business litigation, including class action defense, business
torts (such as antitrust, trade secret litigation, and interference with economic advantage),
patent and trademark infringement, false advertising and California’s Unfair Competition
Law.
He has tried a dozen cases in state and federal court, and has litigated numerous
arbitrations, including hearings before the National Association of Securities Dealers and
the American Arbitration Association. Mr. Hebert was named by the Daily Journal as one
of the Top 100 Lawyers in California for 2011.
Mr. Hebert was President of the State Bar of California for the 2010/2011 term. He was a
member of the State Bar Board of Governors, 2007-2010, serving as Vice President for 2009-
2010. He is also a member of the Board of Directors of the San Francisco Legal Aid Society
and the Board of Directors of the Public Interest Law Project, as well as Chair of the Board
of Trustees of Prospect Sierra School. Mr. Hebert is a panel mediator for the U.S. District
Court for the Northern District of California.
He received his J.D. for the University of California, Boalt Hall School of Law in 1988 and
an A.B. from Stanford University in 1983 (with distinction).
Mr. Hebert is the author of Library of California Business Litigation Forms (ALM Media
Properties, LLC 2013). He is a contributing author of California Antitrust and Unfair
Competition Law (Lexis Nexis, 2010), published by the California State Bar Section on
Antitrust and Unfair Competition. He contributed chapters on the subjects of expert
witnesses, injunctions, treble damages and void contracts.
MEET THE AUTHOR
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EX PARTE APPLICATION TRO AND OSC PRELIM. INJUNCTION
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[ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY EMAIL ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT’S NAME]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF [COUNTY NAME]
UNLIMITED JURISDICTION
[PLAINTIFF’S NAME], a California corporation, Plaintiff, v. [DEFENDANT(S) NAME(S)]; and DOES 1 to 50, inclusive, Defendants.
Case No. PLAINTIFF’S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: Time: Dept:
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1 EX PARTE APP. TRO/OSC AND MPA SUPP.
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I. CERTIFICATION OF COMPLIANCE WITH THE EX PARTE RULES OF THE CALIFORNIA RULES OF COURT
Before 10:00 a.m. on [DATE], counsel for Plaintiff notified defendants that Plaintiff
would be appearing ex parte at _____ a.m./p.m. on [DATE], in this Court to seek the relief being
sought in this application. (Declaration of [ATTORNEY NAME] Supp. of Pl. Ex Parte App. for
a Temp. Restraining Order and Order to Show Cause Why Prelim. Inj. Should Not Issue
(“NAME Decl.”) ¶*, Exh. A.)
II. INTRODUCTION
Plaintiff trusted its former employee, software engineer Defendant [NAME]
(“Defendant”) with its confidential and proprietary trade secret information. That trust was
misplaced. [DESCRIBE FACTS REGARDING MISAPPROPRIATION OF TRADE
SECRETS, e.g., A few months before Defendant resigned, he started a competing company,
Defendant [COMPANY]. He then began to download all of Plaintiff’s source code and
transferred it through an unauthorized FTP (File Transfer Protocol) system or copied it onto a
thumb drive, he kept thumb drives that contained Plaintiff’s source code rather than returning
them when he left the company, and he copied its customer list. Less than [NUMBER] months
after Defendant left Plaintiff, Defendants were marketing a competing [PRODUCT] to Plaintiff’s
customers that one of them has reported is “identical” to Plaintiff’s [PRODUCT]. Defendants’
[PRODUCT] is the result of blatant copying: Plaintiff invested [NUMBER] years and the full-
time work of [NUMBER] [DESCRIBE TITLE OR TYPE OF WORKERS] to create its product,
but Defendants developed their identical product in a few weeks.
Plaintiff is entitled to a temporary restraining order and an order to show cause why a
preliminary injunction should not issue to prevent Defendants from continuing to use Plaintiff’s
confidential, proprietary and trade secret information. Unless this Court acts immediately to
restrain Defendants, they will continue to use and disclose Plaintiff’s valuable trade secrets and
confidential business information.
III. FACTUAL BACKGROUND
[STATE BACKGROUND FACTS HERE; DESCRIPTION OF TRADE SECRETS;
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2 EX PARTE APP. TRO/OSC AND MPA SUPP.
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REASONABLE EFFORTS TO MAINTAIN SECRECY OF INFORMATION; HOW TRADE
SECRETS WERE MISAPPROPRIATED/DISCLOSED/USED WITHOUT
AUTHORIZATION; NEED FOR PRELIMINARY INJUNCTIVE RELIEF]
IV. ARGUMENT
A. Plaintiff is Entitled to a Preliminary Injunction As it is Likely to Succeed On Its Claim for Breach of Contract and Specific Performance of the Non-Disclosure Agreement.
A cause of action for breach of contract requires pleading (1) the contract; (2) plaintiff’s
performance or excuse for non-performance; (3) defendant’s breach; and (4) damage to plaintiff.
McKell v. Washington Mutual, 142 Cal. App. 4th 1457, 1489 (2006). Specific performance of a
contract may be decreed whenever: (1) its terms are sufficiently definite, (2) consideration is
adequate, (3) there is substantial similarity of the requested performance to the contractual terms,
(4) there is mutuality of remedies, and (5) plaintiff's legal remedy is inadequate. Union Oil Co. of
California v. Greka Energy Corp., 165 Cal. App. 4th 129, 134 (2008).
Plaintiff first cause of action is for breach of contract and specific performance of
Defendant’s Non-Disclosure Agreement (“NDA”), pursuant to which he agreed to keep
confidential Plaintiff’s “Confidential Information”, as is specifically defined in the NDA, and
agreed to return all Confidential Information upon request. (__________ Decl. Exh. B, ¶¶ __,
__.) The parties to the NDA acknowledged that “a breach of the provisions of Paragraphs
[NUMBERS] of this agreement would cause the other party to suffer irreparable damage and
could not be adequately remedied by an action of law. Accordingly, the parties agree that either
party shall have the right to seek specific performance of the provisions of Paragraph
[NUMBER] to enjoin a breach or attempted breach of the provisions thereof, such right being in
addition to all other rights and remedies that are available to the parties at law, in equity, or
otherwise.” (Id. ¶ __.)
Plaintiff is entitled to specific performance of Defendant’s obligations under this
contract: it is definite, consideration was adequate, the requested performance is identical to the
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3 EX PARTE APP. TRO/OSC AND MPA SUPP.
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contract terms, the remedies are mutual, and Plaintiff’s legal remedy is inadequate. Union Oil,
165 Cal. App. 4th at 134. Pending specific performance, this Court can issue a preliminary
injunction to prevent continued breaches of the contract. A contract that can be specifically
enforced can also be preliminarily enforced by means of injunctive relief. Southern Christian
Leadership Conference v. Al Malaikah Auditorium Co., 230 Cal. App. 3d 207, 224 (1991).
Plaintiff is likely to prevail on its first cause; therefore, the Court should enter an injunction to
prevent further breaches of Defendant’s NDA.
B. Plaintiff is Entitled to a Preliminary Injunction Because It is Likely to Succeed On Its Claim for Violation of California Penal Code § 502.
California Penal Code section 502 establishes civil liability for anyone who “knowingly
accesses and without permission takes, copies, or makes use of any data from a computer,
computer system, or computer network, or takes or copies any supporting documentation,
whether existing or residing internal or external to an computer, computer system, or computer
network.” Cal. Penal Code § 502(c)(2) & (e)(1); see Iconix, Inc. v. Tokuda 457 F. Supp. 2d 969
(N.D. Cal. 2006) (finding that plaintiff was likely to succeed on his unfair competition law claim
that defendants violated Penal Code Section 502 by deleting files from plaintiff’s computer
without plaintiff’s permission in order to destroy incriminating evidence and by having
plaintiff’s employee upload a source code belong to plaintiff). Defendants have violated
Section 502 by using, without permission Plaintiff’s computer systems, uploading and copying
files, and deleting files to cover their tracks. Accordingly, Plaintiff is entitled to an injunction
because it will prevail under this claim.
C. Plaintiff is Likely to Succeed on its Claims for Breach of the Duty of Loyalty and Aiding and Abetting Breach of Fiduciary Duty.
In order to prevail on a claim for breach of the duty of loyalty, Plaintiff must
demonstrate: (1) the existence of a relationship giving rise to a duty of loyalty, (2) one or more
breaches of that duty, and (3) damage proximately caused by that breach. Huong Que, Inc. v.
Luu, 150 Cal. App. 4th 400, 410 (2007). In an employment relationship, “[t]he duty of loyalty
arises not from a contract but from the relationship of principal and agent. Id. at 411. “Where
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such a relationship arises, the agent assumes “a fiduciary duty to act loyally for the principal's
benefit in all matters connected with the agency relationship.” Id. The duty of loyalty is breached
when an employee, during his employment, competes with his employer. Id. at 416; see also
Stokes v. Dole Nut Co., 41 Cal. App. 4th 285, 295 (1995) (“[D]uring the term of employment, an
employer is entitled to its employees' undivided loyalty.... The duty of loyalty is breached ...
when the employee takes action which is inimical to the best interests of the employer.”
(citations and internal quotation marks omitted)); GAB Bus. Servs. v. Lindsey & Newsom Claim
Servs., Inc., 83 Cal. App. 4th 409, ___ (2000).
Under California law, a defendant may be liable for aiding and abetting in the
commission of an intentional tort if he “(a) knows the other's conduct constitutes a breach of
duty and gives substantial assistance or encouragement to the other to so act or (b) gives
substantial assistance to the other in accomplishing a tortious result and the person's own
conduct, separately considered, constitutes a breach of duty to the third person.” Saunders v. Sup.
Ct., 27 Cal. App. 4th 832, 846 (1994). “A defendant may be found liable
for aiding and abetting a breach of fiduciary duty even though the defendant owes no
independent duty to the plaintiff, so long as the aider and abettor knows of, and substantially
assists, the primary violator's breach of duty.” Neilson v. Union Bank of California, 290 F. Supp.
2d 1101, 1137 (C.D. Cal. 2003) (applying California law to hold an employee and several other
defendants liable for aiding and abetting an investment advisor in defrauding investors).
Here, an employment relationship existed between Defendant and Plaintiff giving rise to
a duty of loyalty. However, Defendant has breached that duty, and is continuing to breach that
duty in violation of his NDA. All of his co-defendants are aiding and abetting that by knowingly
giving him substantial assistance in his endeavor to develop a competing product using
Plaintiff’s confidential information. Plaintiff is therefore likely to prevail on its claims for breach
of the duty of loyalty and aiding and abetting the breach of Defendant’s fiduciary duty.
D. Plaintiff is Entitled to a Preliminary Injunction Because It is Likely to Succeed on its Claims Under the Uniform Trade Secrets Act.
To prevail on a claim under the Uniform Trade Secrets Act, a plaintiff must allege and
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prove (1) the existence of the subject matter which is capable of protection as a trade secret,
(2) disclosure of the trade secret under circumstances giving rise to a contractual or other legally
imposed obligation not to use or disclose the secret to the detriment of the trade secret owner,
and (3) where the defendant is an employee or former employee of the trade secret owner, the
facts alleged must also show that the public policy in favor of protection of the trade secret
owner’s interest outweighs the interest of the employee in using his or her knowledge to support
himself or herself in other employment. Cal Francisco Inv. Corp. v. Vrionis, 14 Cal. App. 3d 318
(1971). A “trade secret” is defined as “information, including a formula, pattern, compilation,
program, device, method, technique or process, that: (1) [d]erives independent economic value,
actual or potential, from not being generally known to the public or to other persons who can
obtain economic value from its disclosure or use; and (2) [i]s subject to efforts that are
reasonable under the circumstances to maintain its secrecy.” Id. § 3426.1(d). Plaintiff can prove
that it possesses protectable trade secrets and that Defendants have unlawfully misappropriated
these secrets.
a. Plaintiff’s confidential information is compilation, program, method, technique or process that derives economic value from not being generally known to the public.
Computer software and source code is generally recognized as a protectable trade secret.
See e.g., S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1089-90 (9th Cir.1989). Similarly, designs,
plans and other documents relating to new products under development constitute protectable
trade secrets. Vacco Industries, Inc. v. Van Den Berg, 5 Cal. App. 4th 34 (1992). Customer lists
and databases, including databases relating to customers, are protectable as trade secrets. Morlife,
Inc. v. Perry, 56 Cal. App. 4th 1514 (1997); ABBA Rubber Co. v. Seaquist, 235 Cal. App. 3d 1
(1991) (customer list); Courtesy Temporary Service, Inc. v. Camacho, 222 Cal. App. 3d 1278
(1990) (customer list, including billing rates, key contact information, specialized requirements
and market rates). The types of things that Plaintiff seeks to protect are all protectable as trade
secrets: customer lists and software. (_____________ Decl. ¶ __.) Plaintiff therefore has met the
first element of its trade secret claim.
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b. Plaintiff has taken reasonable steps to preserve the confidentiality of its trade secrets.
Reasonable efforts may include such things as advising employees of the existence of
trade secrets, limiting access to trade secrets, controlling access to plants, or requiring employees
to sign confidentiality agreements. See Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443, 1454
(2002). Plaintiff has taken reasonable steps to protect its trade secrets. These steps include,
without limitation [DESCRIBE STEPS TAKEN, e.g., requiring employees and third parties to
sign a nondisclosure and confidentiality agreement as a condition of receiving access to
Plaintiff’s trade secrets; the imposition of strict confidentiality requirements for all employees, as
outlined in Plaintiff’s employee handbook; and limiting disclosure of information within the
company on a “need-to-know” basis]. (____________ Decl. ¶ __, Exhs. B, G.) These measures
are among those that courts have found to be reasonable measures to protect trade secret
information. See ReadyLink Healthcare v. Cotton, 126 Cal. App. 4th 1006, 1018 (2005)
(“ReadyLink took reasonable steps to ensure the secrecy of its trade secret information by
requesting employees to sign nondisclosure agreements.”).
c. Defendants have wrongfully misappropriated Plaintiff’s trade secrets.
“Misappropriation of a trade secret is defined as acquisition of a trade secret by someone
who knows or has reason to know that it was acquired through improper means, or the disclosure
or use of a trade secret without consent by a person who, at the time of disclosure or use, knew or
had reason to know that knowledge of the trade secret was acquired under circumstances giving
rise to a duty to maintain its secrecy. Id. § 3426.1(b). Actual or threatened misappropriation may
be enjoined and, in appropriate circumstances, affirmative acts to protect a trade secret may be
compelled by court order. Cal. Civ. Code § 3426.2(a), (c). See, e.g., Courtesy Temporary
Service, Inc., 222 Cal. App. 3d at 1286-88 (temporary held agency employees’ use of
confidential customer information to actively solicit plaintiff’s customers and diverting
customers to new employer); American Credit Indemnity v. Sacks, 213 Cal. App. 3d 622, 632-34
(1989) (preliminary injunction would issue to prohibit solicitation of customers by former
employee who had signed non-disclosure agreement where trade secrets included client list,
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expiration dates of insurance policies, lists of all leads for potential business, claims histories and
other information concerning the special needs of clients).
Defendant had access to these trade secrets by virtue of his written NDA and his
employment at Plaintiff. (____________ Decl. ¶ __.) Defendants are wrongfully in possession of
trade secrets and other valuable confidential information (such as their product codes and client
lists) belonging to the Plaintiff. Defendants have used this information to establish a competing
business, merely two or three months within Defendant’s departure from Plaintiff, with little
time or money. (_____________ Decl. ¶ __.)
Damages cannot make Plaintiff whole or end the irreparable harm, which will be and is
being caused by Defendants’ use of Plaintiff’s proprietary information. The value of Plaintiff’s
trade secrets is found in not only the cost and time spent in creating the trade secret. The
evidence that Defendants are actively soliciting particular individuals within Plaintiff’s customer
database lends itself to the possibility of lost confidence within these agencies as to their
confidential status and continued importance. An injunction is necessary to stop such irreparable
harm from occurring.
E. Plaintiff is Likely to Succeed On Its Claim for Conversion.
The essence of conversion is “the wrongful exercise of dominion over the personal
property of another.” Fremont Indem. Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 119
(2007). “The basic elements of the tort are (1) the plaintiff's ownership or right to possession of
personal property; (2) the defendant's disposition of the property in a manner that is inconsistent
with the plaintiff's property rights; and (3) resulting damages.” Id. Further, the misappropriation
and sale of intangible property of another without authority from the owner is conversion. A&M
Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 570 (1977) (holding plaintiff’s patient lists and
business forms constitute ‘property’ and the use of those lists and forms by a former employee
for the benefit of a competitor constitutes conversion).
It is indisputable that Plaintiff owns and has the right to possess the property, including
the trade secrets, software source code, Web application databases and storage procedures, client
lists, pricing and other confidential and proprietary business information alleged in this
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complaint. (_____________ Decl. ¶ __.) Defendants wrongfully appropriated for themselves
Plaintiff’s files, electronic data, sales and customer lists, and other material in violation of
Plaintiff’s property rights, and used this property for their own advantage and Plaintiff’s
detriment. Plaintiff has suffered irreparable harm and will continue to do so if Defendants are
permitted to keep and use Plaintiffs’ property.
F. Plaintiff is Likely to Succeed on its Claim for Intentional Interference with Contract.
A plaintiff is entitled to be free from the unjustified interference by third parties with its
contracts. The elements of Plaintiff’s cause of action for intentional interference with contractual
advantage are: (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge
of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the
contractual relationship; (4) actual breach or disruption of the relationship; and (5) resulting
damage. Savage v. Pacific Gas and Elec. Co., 21 Cal. App. 4th 434, 448 (1993); see also
Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 35-39 (1941).
Plaintiff is likely to succeed on every element of its claim for intentional interference
with contractual advantage. Plaintiff’s NDA with Defendant is a valid and existing contract.
Defendants COMPANY and CO-DEFENDANTS undoubtedly knew about the existence of the
contract and these Defendants intentionally interfered with Defendant’s performance of it by
working with him to steal Plaintiff’s proprietary and confidential information.
Defendants’ conduct is unexcused. “It is well established, however, that a person is not
justified in inducing a breach of contract simply because he is in competition with one of the
parties to the contract and seeks to further his own economic advantage at the expense of the
other.” Imperial Ice, 18 Cal.2d at 36. This is the rule in California and the majority rule. Id.,
18 Cal.2d at 38.
Accordingly, because the Co-Defendants have induced Defendant to breach his NDA,
Plaintiff is likely to succeed under this claim and a preliminary injunction should issue against
them to prevent further interference.
G. Plaintiff is Entitled to a Preliminary Injunction Because it is Likely to
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Succeed on Its Claim for Unfair Competition.
Misappropriation of trade secrets constitutes unfair or unlawful conduct under California
Business and Professions Code § 17200. Courtesy Temporary Service, 222 Cal. App. 3d at 1291-
92 (holding that even if Courtesy's customer list would not qualify as a “trade secret,” the unfair
and deceptive practices of employees in stealing Courtesy's customers through the use of
confidential information obtained from defendants’ employment should have been enjoined
under Business and Professions Code § 17200). Where, as here, Plaintiff has been actually
injured and seeks restitution, Plaintiff has standing under Section 17200 and 17209 to obtain
injunctive relief. See, e.g. Iconix, Inc., 457 F. Supp. 2d at 996 (entering injunctive relief under
Uniform Trade Secrets Act against two former employees who had misappropriated trade
secrets, and where plaintiff sought restitution of things taken from it). In the present case,
because Plaintiff has suffered actual injury due to Defendant’s breach of the NDA and
Defendant’s misappropriation of trade secrets, Plaintiff is entitled to injunctive relief under
Business and Professions Code Section 17203.
H. The Court Should Issue an Injunction to Prevent Further Harm to Plaintiff.
The Court has authority to enter an order enjoining unlawful conduct under its inherent
equitable power and under Code of Civil Procedure Sections 526 and 527, Civil Code
Section 3426.2(a), (c), and Business and Professions Code Section 17203. “In deciding whether
to issue a preliminary injunction, a trial court outweighs two interrelated factors: the likelihood
the moving party ultimately will prevail on the merits, and the relative harm to the parties from
the issuance or nonissuance of the injunction.” Whyte, 101 Cal. App. 4th at 1449-1450 (citing,
Hunt v. Superior Court (1999) 21 Cal. 4th 984, 999; Butt v. The State of California (1992) 4 Cal.
4th 668, 677-678). The “greater the plaintiffs showing on one, the less must be shown on the
other to support an injunction.” Id. at 678. Additionally, the likelihood of a plaintiff ultimately
prevailing on the matter is articulated as a “reasonable probability.” Continental Banking
Company v. Katz, 68 Cal.2d 512, 528 (1968). Finally, the purpose of a preliminary injunction is
to preserve the status quo pending a determination on the merits of the claim. Id.
Courts routinely issue injunctions in trade secret and misappropriation cases. See
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10 EX PARTE APP. TRO/OSC AND MPA SUPP.
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Courtesy Temporary Service, Inc., 222 Cal. App. 3d at 1298-1291 (temporary help agency
employees’ use of confidential customer information to actively solicit plaintiff’s customers and
diverting customers to new employer); American Credit Indemnity v. Sacks, 213 Cal. App. 3d
622, 638 (1989) (preliminary injunction would issue to prohibit solicitation of credit insurance
underwriters’ customers by former employee); Huong Que, 150 Cal. App. 4th at 416 (affirming
the entry of injunction for breach of duty of loyalty by establishing a competing business).
Furthermore, “[w]here the plaintiff proves that the defendant unlawfully interferes or threatens to
interfere with his business or his rights under a contract, and further makes out in proof that
damages will not afford an adequate remedy, equity will issue an injunction.” California Grape
Control Board, Ltd. v. California Produce Corporation, Ltd., 4 Cal. App. 2d 242, 244 (1935).
Plaintiff is likely to prevail on the merits of all of its claims. If an injunction is not issued,
Plaintiff will be gravely injured. If an injunction is issued, Defendants will not be prevented from
lawfully competing with Plaintiff by developing their own software program, just as Plaintiff
did, but without free-riding on Plaintiff’s substantial investment of time and money. By issuing
an injunction, the Court will preserve the status quo pending trial on the merits.
V. CONCLUSION
For the reasons set forth above, Plaintiff asks that this Court issue an order to show cause
why a preliminary injunction should not issue against Defendants for the breaches and violations
of law set forth herein.
DATED:
LAW FIRM NAME
By: [ATTORNEY NAME]
Attorneys for [CLIENT’S NAME] [PLAINTIFF/DEFENDANT]
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[PLEADING TITLE]
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[ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY EMAIL ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT’S NAME]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF [COUNTY NAME]
UNLIMITED JURISDICTION
[PLAINTIFF’S NAME], a California corporation, Plaintiff, v. [DEFENDANT(S) NAME(S)], a California corporation; and DOES 1 to 50, inclusive, Defendants.
Case No. COMPLAINT FOR COMMON LAW UNFAIR COMPETITION
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1 [PLEADING TITLE]
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Plaintiff [NAME], as its complaint against Defendants [DEFENDANTS’ NAMES]
alleges as follows:
PARTIES
1. Plaintiff [NAME] is a corporation organized and existing under the laws of the
State of California, with its principal place of business in [CITY], California. Plaintiff is
qualified to do business in the State of California.
2. Defendant [NAME] is, and at all material times was, a corporation organized and
existing under the laws of the State of California with its principal place of business in [CITY],
California.
3. The true names and capacities, whether individual, corporate, associate, or
otherwise, of Does 1 through 50, inclusive, are unknown to Plaintiff, who therefore sues the Doe
Defendants by fictitious names. Plaintiff will amend this Complaint to show their true names and
capacities when they have been ascertained.
4. Plaintiff is informed, believes and thereon alleges that each of the fictitiously
named Defendants designated as Does 1 through 50, inclusive, were legally, equitably, and/or
otherwise responsible for the acts, omissions, errors, tortious conduct, and/or occurrences herein
alleged and that injuries and/or damages as herein alleged were proximately caused by these
fictitiously named Defendants.
5. Plaintiff is informed, believes and thereon alleges that each of the Defendants
herein was, and at all times relevant to this action is, the agent, employee, representing partner,
supervisor, managing agent, or joint venturer of the remaining Defendants and was acting within
the course and scope of that relationship. Plaintiff is further informed, believes and thereon
alleges that each of the Defendants herein gave consent to, ratified, and authorized the acts
alleged herein of the remaining Defendants. Defendants are sued both in their own right and on
the basis of respondeat superior.
6. Plaintiff is informed, believes and thereon alleges that each and every of the acts
and omissions alleged herein were performed by, and/or attributable to, all Defendants, each
acting as agents and/or employees, and/or under the direction and control of each of the other
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Defendants, and that said acts and failures to act were within the course and scope of said
agency, employment and/or direction and control.
FIRST CAUSE OF ACTION
(Common Law Unfair Competition)
7. Plaintiff incorporates by reference as though fully set forth herein paragraphs __
to __, inclusive.
8. [PLAINTIFF’S NAME] is a business started in [YEAR]. Plaintiff owns and
operates a [DESCRIBE BUSINESS OPERATIONS]. Plaintiff sells its [PRODUCT] at
[LOCATION, e.g., its own store, through retailers] and throughout California and nationwide.
Plaintiff has developed a reputation for producing high-quality [PRODUCT].
9. As a family-run business, Plaintiff decided to adopt [FAMILY NAME
TRADEMARK—ALL CAPS] as its label and trademark. The name [FAMILY NAME
TRADEMARK—ALL CAPS] became a distinct and unusual trademark in the [DESCRIBE
TYPE OF BUSINESS] business. Since at least [MONTH, DAY, YEAR], Plaintiff has been
using the name [FAMILY NAME TRADEMARK—ALL CAPS] in connection with the
advertising, marketing and sale of [PRODUCT].
10. Plaintiff has advertised heavily to market and sell its [PRODUCTS], both in
California and throughout the country. Consumers recognize the [FAMILY NAME
TRADEMARK—ALL CAPS] name and mark as symbolizing a high-quality [PRODUCT] from
a particular source, namely, [PLAINTIFF’S NAME].
11. In [YEAR], many years after Plaintiff adopted the [FAMILY NAME
TRADEMARK—ALL CAPS] name and mark, Defendant [NAME] began to sell [PRODUCT]
under the “[DEFENDANT’S PRODUCT NAME—ALL CAPS].” Defendant’s use of the name
“[DEFENDANT’S PRODUCT NAME—ALL CAPS]” is likely to cause confusion and has
caused confusion among consumers as to whether [DEFENDANT’S NAME]’s [PRODUCTS]
are made by, sponsored or approved by Plaintiff [NAME] or that [DEFENDANT’S NAME]’s
[OPERATION] is sponsored by or affiliated with [PLAINTIFF’S NAME].
12. [DEFENDANT’S NAME]’s actions alleged above are likely to cause mistake,
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confusion and/or deceive the public as to the affiliation with, sponsorship by, approval by or
connection between Plaintiff and Defendant and thus constitute unfair competition, or passing
off, under common law.
13. As a result of [DEFENDANT’S NAME]’s actions alleged in this complaint,
Plaintiff has suffered and is likely to suffer in the future monetary damages due to loss of sales
and loss of goodwill.
14. Unless and until restrained by this Court, Defendant [NAME] will continue
unlawfully and without permission to use Plaintiff’s [FAMILY NAME TRADEMARK—ALL
CAPS] mark on Defendant’s [PRODUCTS], which will cause Plaintiff irreparable injury for
which monetary damages will be inadequate, including without limitation damage to its
trademark, loss of goodwill, and loss of the ability to move into new markets.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff [NAME] prays for the following relief:
1. That Defendant [NAME], its officers, directors, agents, employees,
representatives and all persons acting or claiming to act on its behalf or under its direction and
control, and all persons acting in concert or participation with [DEFENDANT’S NAME], and
who receive notice of the order, be enjoined during the pendency of this action and perpetually
from (1) using the designation “[PLAINTIFF’S TRADEMARK—ALL CAPS]” or any other
name, mark or designation that is a colorable imitation of or confusingly similar to
“[PLAINTIFF’S TRADEMARK—ALL CAPS]”, whether alone or in combination with any
other name or mark, in connection with the manufacture, advertising, marketing or sale of
[PRODUCT], [PRODUCT]-related products, [PLAINTIFF’S OPERATIONS, e.g., stores], or
any other good, product or service that neither originates from nor is authorized by Plaintiff
[NAME];
2. For damages according to proof at trial, including for lost profits and loss of
goodwill; and
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3. For such other relief as the Court deems just and proper.
DATED: _______________________
[LAW FIRM NAME]
By: [ATTORNEY NAME]
Attorneys for [CLIENT’S NAME] [PLAINTIFF/DEFENDANT]
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COMPLAINT
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[ATTORNEY NAME] (ATTORNEY STATE BAR NUMBER) [ATTORNEY EMAIL ADDRESS] [LAW FIRM NAME] [LAW FIRM STREET ADDRESS] [LAW FIRM CITY/STATE/ZIP CODE] [LAW FIRM TELEPHONE NUMBER] [LAW FIRM FAX NUMBER] Attorneys for [PLAINTIFF/DEFENDANT] [CLIENT’S NAME]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF [COUNTY NAME]
UNLIMITED JURISDICTION
[PLAINTIFF’S NAME], a California corporation, Plaintiff, v. [DEFENDANT(S) NAME(S)]; and DOES 1 to 50, inclusive, Defendants.
Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR BREACH OF CONTRACT AND COVENANT NOT TO SOLICIT EMPLOYEES OF FORMER EMPLOYER
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1 COMPLAINT
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Plaintiff [NAME], as its complaint against Defendants [DEFENDANT’S NAMES]
alleges as follows:
PARTIES
1. Plaintiff [NAME] is a corporation organized and existing under the laws of the
State of California, with its principal place of business in [CITY], California. [PLAINTIFF
NAME] is qualified to do business in the State of California.
2. Defendant [NAME] is, and at all material times was, an individual who is a
resident of the State of California, and the County of [COUNTY].
3. The true names and capacities, whether individual, corporate, associate, or
otherwise, of Does 1 through 50, inclusive, are unknown to Plaintiff, who therefore sues the Doe
Defendants by fictitious names. Plaintiff will amend this Complaint to show their true names and
capacities when they have been ascertained.
4. Plaintiff is informed, believes and thereon alleges that each of the fictitiously
named Defendants designated as Does 1 through 50, inclusive, were legally, equitably, and/or
otherwise responsible for the acts, omissions, errors, tortious conduct, and/or occurrences herein
alleged and that injuries and/or damages as herein alleged were proximately caused by these
fictitiously named Defendants.
5. Plaintiff is informed, believes and thereon alleges that each of the Defendants
herein was, and at all times relevant to this action is, the agent, employee, representing partner,
supervisor, managing agent, or joint venturer of the remaining Defendants and was acting within
the course and scope of that relationship. Plaintiff is further informed, believes and thereon
alleges that each of the Defendants herein gave consent to, ratified, and authorized the acts
alleged herein of the remaining Defendants. Defendants are sued both in their own right and on
the basis of respondeat superior.
6. Plaintiff is informed, believes and thereon alleges that each and every of the acts
and omissions alleged herein were performed by, and/or attributable to, all Defendants, each
acting as agents and/or employees, and/or under the direction and control of each of the other
Defendants, and that said acts and failures to act were within the course and scope of said
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2 COMPLAINT
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agency, employment and/or direction and control.
GENERAL ALLEGATIONS
7. Plaintiff is a [DESCRIBE, e.g., software company].
8. From [DATE] to [DATE], Defendant was employed by Plaintiff as [TITLE]. On
[DATE], Defendant resigned from Plaintiff and took the position of Vice President of Sales of
[NAME], one of Plaintiff’s principal competitors in the market for [PRODUCT].
9. Defendant’s employment with Plaintiff was governed by a written Employment
Agreement, a copy of which is attached hereto as Exhibit A and incorporated by this reference.
Defendant’s written Employment Agreement contains the following provision:
[QUOTE NON-SOLICITATION PROVISION OF AGREEMENT]
10. Almost immediately after Defendant resigned from Plaintiff and took the position
of Vice President of Sales of [NAME], Defendant began to directly and indirectly solicit
Plaintiff’s sales representatives and employees to work for [NAME] in violation of the non-
solicitation provision of his Employment Agreement.
11. Despite repeated demands that Defendant cease and desist from soliciting
Plaintiff’s employees in violation of his Employment Agreement, Defendant has continued to do
so.
FIRST CAUSE OF ACTION
(Breach of Contract – Non-Solicitation of Employees)
12. Plaintiff incorporates by reference as though fully set forth herein paragraphs __
to __, inclusive.
13. The Employment Agreement is a valid and existing contract.
14. Plaintiff has performed all conditions, covenants, and promises required by it to
be performed in accordance with the terms and conditions of the Employment Agreement.
15. Defendant breached the Employment Agreement within one year after his
termination from employment by directly or indirectly, wrongfully, unfairly or in an anti-
competitive manner, soliciting, inducing, or hiring, or attempting to solicit, induce or hire,
Plaintiff’s employees, consultants or representatives to terminate, reduce or materially alter such
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employee’s, consultant’s, agent’s or other representative’s relationship with, or otherwise cease
negotiations and/or business activity with Plaintiff.
16. As a result of Defendant’s breach of the non-solicitation clause of the
Employment Agreement, Plaintiff has suffered actual damages, including lost profits and loss of
goodwill, in an amount to be proven at trial.
17. Unless and until Defendant is enjoined and restrained by order of this Court,
Defendant will continue his wrongful conduct in violation of the non-solicitation covenant
contained in the Employment Agreement. Unless and until enjoined, the Defendant’s wrongful
conduct will cause great and irreparable injury to Plaintiff and its business in that it will continue
to lose employees and customers to Defendant and suffer injury to its goodwill.
18. Plaintiff has no adequate remedy at law for the injuries currently being suffered or
which are threatened in that Defendant will continue to compete with Plaintiff in violation of the
covenant not to compete and Plaintiff would be required to maintain a multiplicity of judicial
proceedings to protect its interests.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff [NAME] prays for the following relief:
1. For actual damages for breach of contract, including lost profits and loss of
goodwill;
2. For preliminary and permanent injunctive relief pursuant to Sections 526 and 527
of the California Code of Civil Procedure enjoining Defendant, and his officers, agents, servants,
employees, and attorneys, and all other persons who are in active concert or participation with
him, and who receive actual notice of the order, from continuing to directly or indirectly,
wrongfully, unfairly or in an anti-competitive manner, solicit, induce, or hire, or attempt to
solicit, induce or hire, Plaintiff’s employees, consultants or representatives to terminate, reduce
or materially alter such employee’s, consultant’s, agent’s or other representative’s relationship
with, or otherwise cease negotiations and/or business activity with Plaintiff, for a period of one
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year after Defendant’s termination of employment in breach of the non-solicitation covenant
contained in the Employment Agreement;
3. For pre-judgment interest at the legal rate [OR at the contract rate] commencing
on the date of breach;
4. [IF THE CONTRACT CONTAINS A PREVAILING PARTY ATTORNEYS’
FEE PROVISION] For Plaintiff’s reasonable attorneys’ fees;
5. For its costs of suit; and,
6. For such other relief as the Court deems just and proper.
DATED: _______________________
[LAW FIRM NAME]
By: [ATTORNEY NAME]
Attorneys for [CLIENT’S NAME] [PLAINTIFF/DEFENDANT]
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Confidential Communication Attorney-Client Privilege Attorney Work Product
1
Re: Engagement for Services
Dear Professor ___________________:
This letter will confirm that [FIRM NAME] (the "Firm"), as counsel for [CLIENT] (the “ABC Company”), has retained you to [DESCRIBE subject matter of testimony, e.g., “calculate the damages attributable to Defendant [NAME]’s infringement of [NAME] Company’s U.S. Patent No. [PATENT NUMBER]”). The Firm is asking you to provide expert consulting services and we may ask you to testify as an expert witness at deposition and trial on these issues as they relate to [NAME] Company’s claims against [DEFENDANT NAME] Company.
You have agreed to give us your independent evaluation of these issues. To assist you, we will provide you with materials or information that you require to reach your conclusions. While we will attempt to provide you with everything reasonably necessary to the formulation of your opinions, we will try not to overload you with irrelevant information.
Your engagement is to provide consultation to us as legal counsel for [NAME] Company. The adverse party is [DEFENDANT NAME] Company. Accordingly, unless and until we designate you as a testifying expert and your deposition is taken, our communications with you are protected from disclosure by the attorney work product doctrine and attorney-client privilege. It is your duty to protect against disclosure of information regarding this engagement. This duty to protect the confidentiality of information has been in effect since the first time we spoke about this matter. We request that any written communication (electronic or otherwise) to us bear the confidentiality legend, set forth above, on each page of the communication, although the failure to include such a designation does not waive or otherwise affect its confidential nature.
As attorneys, our Rules of Professional Conduct prohibit us from contacting an adverse party who is represented by counsel without his or her attorney present. When acting as the Firm's consultant or expert on this engagement, you agree to abide by this rule and agree that you will not contact the adverse party or any person affiliated with the adverse party for any purpose without previously notifying us and obtaining our advance written approval.
You also acknowledge that all information disclosed to you by [NAME] Company or this Firm and the work you provide to the Firm under this agreement is confidential and proprietary, and you will not disclose this information to any third parties. If you are served with a subpoena or other legal document requesting the disclosure of any information that you have received or created pursuant to this agreement, you will promptly notify the Firm and you will cooperate with all reasonable and lawful requests by the Firm to prevent the disclosure of confidential and/or proprietary information.
You also agree not to take any engagements during the term of this engagement that might cause you to reveal confidential information to any third party or [DEFENDANT NAME] Company or its attorneys. You agree to disclose to the Firm if you are approached to consider an engagement that might potentially conflict with your work for [NAME] Company or the Firm in this matter.
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Confidential Communication Attorney-Client Privilege Attorney Work Product
2
We understand that if you are required to provide testimony, at a deposition or otherwise, it may be necessary for you to resist any effort by a third party to elicit, in connection with that testimony, facts concerning materials proprietary to you or to your other clients and/or engagements. This may be necessary due to (1) confidentiality agreements or protective orders governing those other engagements, (2) restrictions on disclosure imposed by your other clients, or (3) other reasons. The Firm acknowledges the legitimate interest you have in maintaining the confidentiality of your proprietary materials and other clients and engagements. In the event such testimony concerning your proprietary matters or other clients or engagements becomes an issue, you will use your best efforts to protect the interests of [NAME] Company and the Firm consistent with your needs to protect your proprietary materials and comply with applicable non-disclosure obligations.
You will consult with us on a regular basis regarding your work and you will make every reasonable effort to perform the assignment in a cost-effective manner. We have agreed that you will be paid you your standard hourly rate of $[AMOUNT] per hour for consulting and testifying and you will also be reimbursed for all reasonable and necessary expenses that you incur in connection with this matter. Please remit your invoices to me to review, but we anticipate that [NAME] Company will pay you directly.
If this letter accurately reflects our agreement, please indicate your acceptance by signing below. Please keep a copy for your files and return the original of this engagement letter to me. If you have any questions, please do not hesitate to call me.
Very truly yours,
[ATTORNEY NAME] Accepted and agreed: _____________________________ [EXPERT WITNESS’S NAME] Dated: _______________________
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OTHER EXEMPLARS