Opinion
No. CV 01-09971 RSWL JWJx
October 21, 2003
Lowell John Dosch Attorney at Law, for TAJ California, Aijaz Ali Taj, and Fatima Ali Taj.
FINAL JUDGMENT AND INJUNCTION ORDER
After having reviewed the trial testimony, exhibits and evidence introduced during the trial of this matter from September 16 to 23, 2003, and having considered the arguments of counsel, and for the reasons stated by the Court in its October 8, 2003 Ruling, it is hereby
ORDERED that Final Judgment is entered in favor of Plaintiff's and against Defendants on liability with respect to Counts I, II, III, IV, V, VI and VII of Plaintiff's' First Amended Complaint; and it is further
ORDERED that Final Judgment is entered against Defendants and in favor of Plaintiff's on liability with respect to all of Defendants' Counterclaims; and it is further
ORDERED that all Franchise Agreements between the parties and the Moorpark Sublease are hereby terminated, with good cause, on the grounds that Defendants breached the Franchise Agreements and Moorpark Sublease by:
(1) engaging in intentional underreporting of gross sales at their stores, and thereby underpaying franchise fees, advertising fees, and percentage rent owed to Plaintiff's; (2) breaching § 5.1.7 of the Franchise Agreements, the "obey all laws" clause, by willfully failing to comply with income tax laws, specifically 26 U.S.C. § 7201, 7206(1), and 6663 and 18 U.S.C. § 1001; (3) breaching § 8.0.1 of the Franchise Agreements by engaging in conduct injurious or prejudicial to the goodwill associated with Plaintiff's' trademarks; (4) failing to maintain accurate business, sales, and financial records; and (5) failing to comply with Generally Accepted Accounting Principles ("GAAP"); and it is further
ORDERED that Defendants have breached their post-termination obligations under the Franchise Agreements and Moorpark Sublease by continuing to use Plaintiff's' trademarks and to operate as franchisees of Plaintiff's after receiving a valid Notice of Termination from Plaintiff's; and it is further
ORDERED that Defendants' continued use of Plaintiff's trademarks, trade dress, and trade name after termination of the Franchise Agreements constitutes trademark infringement, trade dress infringement, and unfair competition in violation of § 32 of the Lanham Act, 15 U.S.C. § 1114, and § 43 of the Lanham Act, 15 U.S.C. § 1125(a); and it is further
ORDERED that Defendants, and all those acting in concert with them or under their direction or control, cease using, displaying, or otherwise infringing upon the trademarks, trade name, and trade dress of Plaintiff's; or using or displaying any other name, mark or trade dress that is confusingly similar to the trademarks, trade name, and trade dress of Plaintiff's; or from otherwise committing acts of infringement and unfair competition against Plaintiff's in violation of § 32 of the Lanham Act, 15 U.S.C. § 1114, and § 43 of the Lanham Act, 15 U.S.C. § 1125(a); and from utilizing the methods associated with the name "Baskin-Robbins"; and that Defendants are permanently ENJOINED from doing so; and it is further
ORDERED that Defendants comply with their post-termination obligations under all five of the Franchise Agreements, including, but not limited to, assigning to Plaintiff's all of Defendants' rights, titles and interest in all applicable leases related to the premises located at 3520 South Saviers Road, Oxnard, California; 171 West Gonzalez Road, Oxnard, California; 1404 North Moorpark Road, Thousand Oaks, California; and 501 South Ventura Road, Oxnard, California, no later than fourteen (14) days from the date of the instant Final Judgment and Injunction Order, as Plaintiff's may require of Defendants via written notice, and complying with the additional post-termination obligations set forth in, without limitation, §§ 9.4.1, 9.4.2, 9.4.3, 9.4.4, 9.4.5, 9.4.6, 9.4.7, 9.4.8, and 9.4.9 of all of the Franchise Agreements; and that Defendants are permanently ENJOINED to do so; and it is further ORDERED that Defendants comply with `their post-termination obligations under the Moorpark Sublease, including, but not limited to, surrendering physical possession to Plaintiff's of the premises located at 557 West Los Angeles Avenue, Suite 6, Moorpark, California, no later than fourteen (14) days from the date of the execution of the instant Final Judgment and Injunction Order; and that Defendants are permanently ENJOINED to do so; and it is further
ORDERED that the $25,000 currently held in a non-interest-bearing escrow account by Celebrity Escrow Corporation is to be released to Plaintiff's and that Plaintiff's are entitled to possession of the full $25,000; and it is further
ORDERED that Defendants pay to Plaintiff's damages in the amount of $38,277 plus interest of $20,630 accrued as stated in the Franchise Agreements at 1.5 percent per month, for a total of $58,907. The damages are offset by $25,000 for the amount to be released from escrow. The damages are also offset by $12,000 with respect to payments made by the Defendants for extensions to the Moorpark and Saviers Road Franchise Agreements in 2001. Accordingly, judgment is for Plaintiff's in the amount of $21,907 plus additional interest accrued on the $38,277 in unpaid fees since September 18, 2003 until judgment is entered — calculated according to the Franchise Agreements (at $19.04 per day); and it is further ORDERED that Defendants pay Plaintiff's' reasonable attorneys' fees and costs incurred in connection with this action, pursuant to the terms of the Franchise Agreements, and that Plaintiff's submit a fee petition, pursuant to Rule 54 of the Civil Rules of Civil Procedure, to be filed and served by Plaintiff's within fourteen (14) days of the date of entry of this Final Judgment; and it is further ORDERED that Plaintiff's' Proposed Findings of Fact and Conclusions of Law, which were filed with the Court before trial, are hereby adopted by the Court in their entirety, except to the extent that they may be inconsistent with the Court's Ruling dated October 8, 2003, and they are expressly incorporated into this Final Judgment and Injunction Order, as if they were fully set forth herein, as the opinion of the Court.
SO ORDERED.