Avon Products, Inc. v. Susan E. Barnwell et al

Filing 38

CONSENT DECREE AND ORDER by Judge John F. Walter: The Parties will each bear its own costs and attorneys' fees in this action. See document for details. ( MD JS-6. Case Terminated ) (gk)

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KATHERINE F. MURRAY (SB# 211987)
[e-mail]
COURTNEY DETHOMAS (SB#294591)
[e-mail]
PAUL HASTINGS LLP
515 South Flower Street, Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: [phone]
Facsimile: 1(213) 627-0705
JS-6

Attorneys for Plaintiff
AVON PRODUCTS, INC.
Susan E. Barnwell
30234 West Sheila Lane
Buckeye, AZ 85396
Telephone: [phone]
Pro Se Defendant

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AVON PRODUCTS, INC.,
Plaintiff,

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vs.

CASE NO. 2:15-CV-03046-JFW (ASX)
CONSENT DECREE AND
[PROPOSED] ORDER
xxxxxxxxxxxx

SUSAN E. BARNWELL; COUNTY
RECORDER OF LOS ANGELES
COUNTY; SECRETARY OF STATE
OF CALIFORNIA,
Defendants.

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CONSENT DECREE AND ORDER

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CONSENT DECREE AND ORDER
1.

Plaintiff Avon Products, Inc. (“Avon”) brought this this action seeking

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to redress the filing of alleged bogus UCC-1 financing statements by Defendant

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Susan E. Barnwell (“Barnwell”). Avon and Barnwell shall be referred collectively

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herein as the “Parties.”

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2.

Barnwell was employed by Avon in in Pasadena, California from May

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3, 1986 through October 1, 2009. During some periods of Barnwell’s employment,

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Avon processed tax levies from the Internal Revenue Service and the California

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Franchise Tax Board after Barnwell failed to pay federal and state income taxes.

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3.

On or about February 22, 2006, Barnwell sent Avon a “Memorandum

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of Law,” wherein she objected to Avon’s garnishment of her wages. As of June 16,

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2006, Barnwell claimed that Avon had garnished her wages in the amount of

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$11,158.83.

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4.

Barnwell also informed Avon that she was serving Avon with a

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“Notice of Common Law Trademark/Security Agreement,” in which Barnwell

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stated that the names “Susan Elizabeth Truesdell” and “Susan Elizabeth Truesdell

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Barnwell,” along with any and all derivatives and variations in the spelling of those

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names, were trademarked under common law.

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5.

Barnwell subsequently informed Avon that, pursuant to Barnwell’s

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assertion of her common law trademark in her name, Avon owed Barnwell

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$500,000 each time Avon used Barnwell’s name for commercial benefit.

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6.

On or about September 25, 2014, Barnwell sent Avon a letter stating

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that Avon, along with two former Avon employees, were indebted to Barnwell for

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$87,053,490.56 in connection with their purportedly unauthorized use of

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Barnwell’s name. Barnwell also informed Avon that, on March 7, 2007, she had

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filed a UCC-1 Financing Statement with the Los Angeles County Recorder’s

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Office, which the Recorder accepted and recorded. Barnwell further informed

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CONSENT DECREE AND ORDER

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Avon that she had filed a second UCC Financing Statement with the California
Secretary of State. Barnwell also informed Avon that she had heard that Avon was
considering selling or was in the process of selling its property located at 2940 East
Foothill Boulevard in Pasadena, California. Barnwell demanded that Avon provide
her with proceeds from any sale of the Pasadena property, and she threatened to
foreclose under her UCC Financing Statement unless Avon made arrangements to
pay her the sums Barnwell claimed she was owed.
7.

Avon filed its Complaint in this action on April 23, 2015, asking the

Court to declare null and void any security agreements or other purported contracts
that relate in any way to Barnwell’s alleged security interest in any of Avon’s
property. Avon also sought to vacate all UCC financing statements that Barnwell
may have filed against Avon with any governmental entity, ordering Barnwell to
file all documents necessary to terminate any UCC financing statements filed by
Barnwell, and to enjoin Barnwell from filing any future unauthorized or fraudulent
security agreements or financing statements seeking to enforce any lien against
Avon. Avon also sought statutory damages in the amount of $500.00 for each of
Barnwell’s false filings pursuant to UCC Section 9-625(c)(3) (Cal. Com. Code §
9625(3)(3)), for monetary damages that Avon may have suffered as a result of
Barnwell’s clouding of its title, and for attorneys’ fees and costs in connection with
the filing of this action.
8.

On or about May 21, 2015, Barnwell filed an Answer to Avon’s

Complaint, denying each and every allegation in the Complaint and asserting
affirmative defenses.
9.

The Parties have decided to enter into this Consent Decree and Order

to resolve this lawsuit without the need for protracted litigation, and agree that this
lawsuit shall be finally resolved by entry of this Consent Decree. By entering into

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CONSENT DECREE AND ORDER

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this Consent Decree, Barnwell does not admit liability to the allegations in Avon’s
Complaint.
WHEREFORE, the parties hereby agree and stipulate to the Court’s entry of
this Consent Decree and Order, which provides as follows:
GENERAL PROVISIONS
10.

This Court has jurisdiction over the subject matter and the Parties to

this lawsuit. This Court will retain jurisdiction to enforce and interpret the terms of
this Consent Decree and Order.
11.

This Consent Decree and Order is final and binding upon the Parties,

their successors and assigns.
12.

The Parties will each bear its own costs and attorneys’ fees in this

action.
13.

Upon entry by the Court of this Consent Decree and Order, the Parties

agree to file a Joint Stipulation to Dismiss Action Pursuant to Federal Rule of Civil
Procedure 41(a)(1).
INJUNCTIVE RELIEF
14.

As part of the resolution of this lawsuit, Avon and Barnwell have

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entered into a Settlement Agreement and General Release, the terms of which

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provide that, immediately upon execution of the Settlement Agreement, Barnwell

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shall file UCC-3 forms in California, Arizona, and anywhere else where she has

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filed financing statements against Avon, terminating any and all security interests

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she may have against Avon. Barnwell will email confirmation of those filings to

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Avon’s counsel at [e-mail]. Barnwell further agrees to

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refrain from filing any future liens against Avon anywhere in the world. Barnwell

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also agrees to refrain from asserting any trademark infringement claims against

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Avon based on Avon’s purported use of Barnwell’s name.

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CONSENT DECREE AND ORDER

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15.

Avon stipulates that this Consent Decree and Order resolves all

matters under the Complaint, including without limitation, all injunctive relief
claims brought under the Complaint, and that this Consent Decree and Order also
resolves Avon’s damages claim asserted in the Complaint.
ENFORCEMENT
16.

Should Avon in the future become aware of any facts or conditions

suggesting that Barnwell has failed to comply with any of the injunctive relief
provisions set forth herein, Avon shall, prior to seeking enforcement from this
Court, provide notice to Barnwell in writing, addressed to her current address and
any other address Avon may locate for Barnwell at that time. Barnwell shall have
thirty (30) days following receipt of such notification to correct the alleged
violation(s) and/or respond to Avon’s allegations. Any response made by Barnwell
shall be in writing, addressed to Avon’s counsel, Katherine F. Murray of Paul
Hastings LLP, at her then current address registered with the California State Bar.
17.

If Avon determines, in its own good faith discretion, that the matter(s)

are not resolved by Barnwell’s response, Avon shall be permitted to file a noticed
motion under the current case number of this action, seeking enforcement of this
Consent Decree and Order. The prevailing party in such motion proceedings,
whether in full or in part, may be entitled to an award of reasonable attorney fees,
litigation expenses and costs for such motion.
RELEASES
18.

Barnwell agrees to release Avon from any claims of infringement of

her alleged common law trademark. Barnwell also knowingly and voluntarily
waives and releases all rights and claims, known and unknown, which she may
have against Avon, or any of its past, present, or future parents, subsidiaries,
affiliated companies or entities (including, but not limited to, affiliated partnerships
and joint ventures), predecessors, successors, assigns, partners, officers, trustees,
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CONSENT DECREE AND ORDER

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directors, managers, employees, and/or attorneys, relating to this action, or which
could have been or could be alleged in this action, including but not limited to,
Barnwell’s employment with Avon, Avon’s processing of federal and state tax
levies imposed against Barnwell’s wages, and Avon’s use of Barnwell’s alleged
trademark.
19.

Avon knowingly and voluntarily waives and releases all rights and

claims, known and unknown, which it may have against Barnwell, or any of her
predecessors, successors, assigns, partners, trustees, managers, attorneys, insurers,
agents, or representatives relating to this action, or which could have been or could
be alleged in this action.
20.

The Parties acknowledge and agree that they expressly release all

rights and claims that they know about, as well as those they may not know about,
relating to this lawsuit. The Parties expressly waive all rights under Section 1542
of the Civil Code of the State of California or any other comparable statute which
may be applicable. Section 1542 reads as follows:
“A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.”
JOINT PREPARATION AND SEVERABILITY
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This Consent Decree and Order is deemed jointly prepared by the

Parties and shall not be strictly construed against any party as its drafter. If any
term of this Consent Decree is determined by any court to be unenforceable, the
other terms of this Consent Decree shall nonetheless remain in full force and effect.
OWNERSHIP AND NON-ASSIGNMENT OF CLAIMS
22.

The signatories to this Consent Decree and Order represent that they

are authorized to bind the Parties to this Consent Decree and Order.
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CONSENT DECREE AND ORDER

July 6, 2015