Novus Optimum Labs et al v. Tamayo et al

Filing 109

Order by Hon. Vince Chhabria granting 107 Stipulation for Permanent Injunction.(knm, COURT STAFF) (Filed on 1/21/2015)

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DAVrD H. SCHWARTZ (SBN 62693)
LAW OFFICES OF DAVID H. SCHWARTZ,INC.

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601 California Street, Suite 1800
San Francisco, CA 94108
Telephone Tel: [phone]
Fax: [phone]

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Attomey s for Plaintiffs
NOVUS OPTIMUM LABS and
MELIZA REYES

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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NOVUS OPTIMUM LABS dbaNOVUS ) Case No' 3:13-CV-01119 VC
OPTIMUM, [NC. aNevada Corporation, and )
MELIZA REYES, an individual,
) STIPULATION FOR ORDER
Plaintiffs,

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vs.

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GINA TAMAYO and EDGARDO
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TAMAYO, as individuals, dbaNOVUS )
OPTI-LAB,

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Defendants.

GRANTING PERMANENT
INJUNCTION
Case Assignment:
Honorable Vince Chhabria
Courtroom 4
Floor 17

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Plaintiffs Novus Optimum, Inc. and Meliza Reyes, by and through their counsel, David H.
Schwartz, and Defendant Gina Tamayo and Edgardo Tamayo, in pro per,having entered into a

formal agreement for the settlement of this litigation, hereby stipulate as follows:

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That the parties have entered into an agreement for settlement of this Action, a true and

correct copy of which is attached to this Stipulation as Exhibit A.

2.

That the Preliminary Injunction previously entered in this action shall be entered as a final

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Permanent Injunction; and
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3.

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provisions:

That the Court include as part of the frnal Permanent Injunction the following additional

a.

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That Gina Tamayo and/or Edgardo Tamayo shall have no contact with Meliza

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Reyes and/or Novus Optimum, Inc,, either directly or through any intermediary

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(other than an attorney), except as necessary to enforce this settlement agreement.

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Gina Tamayo and Edgardo Tamayo agree to stay away from Meliza Reyes, from

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Novus Optimum fbcility at Pier 26, Suite No. I 1, San Francisco, California,94105,

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and from Meliza Reyes' residence at239l Oakmont Drive, San Bruno, CA 94066.
b.

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This order

will

also apply to any subsequent business or residence address for

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if Reyes provides notice of the subsequent address by certified mail to Gina

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and Edgardo Tamayo at their residence address: 3215 Dublin Drive, South San

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Francisco, CA 94080.

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4.

That the Court

will

retain jurisdiction for purposes of enforcing the terms of the

Permanent Injunction and the Settlement Agreement entered into by the parties.

5, That any further requirement for a bond in the amount of $10,000.00, which amount was
posted by Plaintiffs is hereby excused.

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H. Schwartz, Counsel for
Plaintiffs Meliza Reyes and Novus

Optimum,Inc.

Dated:

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Datcd:

/2'?1- 2d/

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ORDER

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Having considered the Stipulation of the Parties, each side having been represented by

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counsel with respect to the negotiations for settlement and finalization of the settlement terms, the

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Stipulation of the Parties in furtherance of settlement of this action is hereby accepted, and

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HEREBY ORDERED

as follows:

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A Permanent Injunction is GRANTED

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IT IS

as

follows:

Defendants Gina Tamayo, Edgardo Tamayo, Novus Opti-Lab, and all their officers,
agents, servants, and employees are immediately RESTRAINED and ENJOINED from:

a.

Use of the Novus Opti-Lab Domain Name (novusopti-lab.web.com or

novusoptilab.com);

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b.

Use of the Novus Opti-Lab credit card terminal;

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c.

Use of the Novus Opti-Lab dba, registered in the County of San Mateo, California

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d.

Use of the Novus Optimum or Novus Opti-Lab company or product marks;

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e.

Distributing, selling, or offering for sale, product bearing the Novus Optimum or
Novus Opti-Lab marks;

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f.

believing that Defendants are associated with Plaintiff Reyes or Plaintiff Novus

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Optimum;

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g.

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of

disclosing, copying, or transmitting any

of

h.

Using, destroying, selling, or disposing of Novus Optimum Labs' property;

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Destroying, discarding, or altering any documentary, computer, or other evidence
relevant to this litigation;

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Using, destroying, disposing

Plaintifls' trade secrets, including product formulas and business information;

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Doing any other act that is likely to confuse, mislead, or deceive anyone into

j.

Using, disclosing, copying, or transmitting any personal information of any
customer of Novus Optimum or Meliza Reyes. The term "personal information"
includes, without limitation, names, initials, social security numbers, driver's
license numbers, California Identification Card numbers, account numbers, credit

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or debit card numbers, information that would permit access to an individual's

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financial accounts, medical information, and health insurance information; and

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Coming within 100 yards of the Novus Optimum Pier 26 facility, Reyes residence
and/or subsequent business and residential addresses.

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2.

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The requirement that Plaintiffs post a bond as a condition for the issuance of the

injunction on a permanent basis is hereby excused.

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3.

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The Court shall retain jurisdiction for purposes of enforcing the terms of the Permanent

Injunction and the Settlement Agreement entered into by the parties.

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IT IS

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Date:

SO ORDERED.

January 20, 2015

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United States District Court,
Northern District of California

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EXHIBIT
A

SBtrlrvrnNr lxo Murunl Rrr-rlsn AcRrrunNr
This Settlement and Mutual Release Agreement (the "Agreement") is made and entered
into as of December 10,2014 (the "Effective Date") between Novus Optimum Labs dba Novus
Optimum, Inc. a Nevada corporation ("Novus Optimum"), and Meliza Reyes, ("Reyes"), on the
one hand, and Gina Tamayo and Edgardo Tamayo, husband and wife, ("Tamayos"), on the other
hand. Reyes, Novus Optimum, and the Tamayos are collectively refened to as "the Parties."

Rrcrtu,s
WunRnas, Novus Optimum markets and sells a line of herbal supplements developed by
Meliza Reyes;
WHEREIs, in or about December 2008, Gina Tamayo became employed by Reyes at
Novus Optimum Labs in San Francisco, California, and at times thereafter, Edgardo Tamayo
sometimes did contract work for Reyes
WunRnas, in or about March 12,2013, a litigation was initiated by Reyes and Novus
Optimum against the Tamayos in the United States District Court for the Northern District of
California, Case No. 3:13-cv-O1I l9 (the "Action"), alleging, inter alia, that the Tamayos were
operating a business under the name "Novus Opti Lab" that was selling similar or identical
pioducts to Novus Optimum, and/or were actually selling inventory belonging to Novus Optimum
io existing Novus Optimum customers and keeping the revenues from such sales. The suit also
alleged that the Tamayos were responsible for the theft from Novus Optimum facility in San
Francisco of $160,000 in cash, jewelry, computers, identification and financial documents and files
for Meliza Reyes; various art objects, antiques, and sports memorabilia, various books, trade
secrets including documents containing formulas for the Novus Optimum herbal supplements
developed by Reyes and customer information. The suit also alleged that the Tamayos had set up
a website under the domain name novusopti-lab.webs.com or novusoptilab.com which was nearly
identical to the Novus Optimum website and that the Tamayos were infringing on Reyes'
trademarks and copyrights, as well as cybersquatting. The suit alleged numerous statutory and
common law claims for relief, including violations of the Lanham Act and financial elder abuse
under California Elder Abuse statutes (the "Dispute").
WHEREIs, the Tamayos answered the complaint in the Action denying all of the
allegations and asserted counterclaims for breach of contract and fraud. Although not alleged, the
Tamayos have stated that were the lawsuit to continue they would seek leave to amend to raise
claims regarding, inter alia, sexualharassment by Celso Reyes, a former employee of Reyes and
brother of Meliza Reyes; and various claims arising under federal, state, and/or municipal wage
and hour laws.
WHERnas, on July 2,2013, the District Court in Case No. l3-cv-01I19, per the Honorable
John S. Tigar, entered a preliminary injunction against the Tamayos. A copy of that order is
attached to this Settlement Agreement as Attachment A.

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of litigation and seek to secure a
of the Action and all claims arising in or which could have been alleged in the Action,
settlement
and any and all other claims that may exist between the Parties arising out of any relationship
between the Parties or any transactions involving either of the Parties prior to the Effective Date,
whether known or unknown, without making any admissions or concessions regarding the merits
of the matters in dispute.
WHEREAS, the Parties hereto wish to avoid the expense

Now TnnnEFoRE, for good and valuable consideration, the sufficiency and receipt of
which the Parties acknowledge, the Parties agree as follows:

1.

Stipulation to Entrv of Permanent Iniunction. The parties agree to stipulate
to an order that the Preliminary Injunction in the Action (Attachment A) will become a
Permanent Injunction to be entered by the Court in the form attached to this Agreement as
Attachment B. containing the following additional terms:

(a)

Each party shall have no contact with the other, either directly or through
any intermediary (other than an attorney), except as necessary to enforce this settlement
agreement. Gina Tamayo and Edgardo Tamayo agree to stay away from Meliza Reyes, from
the Novus Optimum facility at Pier 26, Suite No. 11, San Francisco, California, 94105, and
from Meliza Reyes' residence at239l Oakmont Drive, San Bruno, CA 94066.

(b)

This order will also apply to any subsequent business or residence address
for Reyes if Reyes provides notice of the subsequent address by certified mail to Gina Tamayo
and Edgardo Tamayo at their residence address: 3215 Dublin Drive, South San Francisco, CA
94080.

(c)

The parties agree that the requirement for a bond for the injunction may be

excused.

2.

Declarations as to Net Worth: Warranties.

(a)

Gina Tamayo shall sign and provide to Reyes a declaration under penalty
of perjury as to her net worth in the form and with the content as set forth in Attachment C.

(b)

Edgardo Tamayo shall sign and provide to Reyes a declaration under
penalty of perjury as to his net worth in the form and with the content as set forth in Attachment
D.

(c)

The Tamayos, jointly and severally, warrant that the statements set forth in
the Declarations which they are signing in connection with this Agreement are true and correct.

3.

Reves and Novus Optimum Not to Contact Tamavos. Reyes and Novus
Optimum shall have no contact with the Tamayos, either directly or through any intermediary
(other than an attorney), except as necessary to enforce this settlement agreement.

4.

Dismissal with Preiudice of All Claims in Action. Reyes and the Tamayos
each shall file dismissals of their claims in the Action, without any admission of liability, and

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subject to the United States District Court retaining jurisdiction for purposes of enforcing the
terms of the Permanent Injunction and this Settlement Agreement.

5.

Mutual Release of Claims.

a.

For and in consideration of the commitments made herein by Reyes,
Tamayo and Gina Tamayo, jointly and separately, on behalf of themselves and their
Edgardo
successors and assigns, waive, release, acquit and forever discharge Meliza Reyes and Novus
Optimum, Inc., and each of their past and present employees, officers, shareholders, directors,
agents, attomeys, predecessors, successors, parent companies, and Affiliates (each a "Reyes
Released Entity") from any and all claims, charges, complaints, rights, demands, actions, causes
of action whether based in contract, tort or otherwise, liabilities, losses, damages, attorneys' fees,
court costs, or any other form of claim or compensation for known and unknown acts, which
Edgardo Tamayo or Gina Tamayo has, may have, or claims to have had against any of them, prior
to the Effective Date, whether known or unknown (collectively, the "Tamayo Released Claims")'
The Tamayos further agree not to initiate any action, including any legal, administrative, or other
proceeding, to assert any Tamayo Released Claims against any Reyes Released Entity, and the
Tamayos covenant not to sue any Reyes Released Entity on account of any such Tamayo
Released Claim. The Tamayos represent and warrant that neither of them have assigned or
conveyed any Tamayos Released Claim, which they have or purport to have against any Reyes
Released Entity, to any other person.

b.

For and in consideration of the commitments made herein by the
Tamayos, Meliza Reyes and Novus Optimum, Inc., on behalf of themselves and their successors
and aisigns, waives, releases, acquits and forever discharges the Tamayos, and each of them, and
each of their past and present employees, officers, shareholders, directors, agents, attorneys,
predecessorr, ,uc..sso.s, parent companies, and Affiliates (each a "Tamayos Released Entity")
i.o. uny and all claims, charges, complaints, rights, demands, actions, or causes of action
whether based in contract, tort or otherwise, liabilities, losses, damages, attorneys' fees, court
costs, or any other form of claim or compensation for known and unknown acts, which Reyes
and Novus Optimum have, may have, or claim to have had against any of them, prior to the
Effective Date (collectively, the "Reyes Released Claims"). Reyes and Novus Optimum further
agree not to initiate any action, including any legal, administrative, or other proceeding, to assert
any Reyes Released Claims against any Tamayos Released Entity, and Reyes and Novus
Optimum covenant not to sue any Tamayos Released Entity on account of any such Reyes
Released Claim. Reyes and Novus Optimum represent and warrant that neither of them have
assigned or conveyed any Reyes Released Claim, which they have or purport to have against any
Tamayos Released Entity, to any other person.

6.

Compromise: No Admission of Liability. The Parties understand and agree that
this Agreement constitutes a compromise and settlement of all Tamayos Released Claims and
Reyes Released Claims, including all disputed matters. Neither this Agreement nor any action by
either Party shall be deemed or otherwise construed as (a) an admission of the truth or falsity of
any claim or other disputed matter, (b) an admission by any Party of any fault or other liability
whatsoever, or (c) any acknowledgment whatsoever of the validity or invalidity of any Party's
position.

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7.

Mutual Releases: Waiver of Unknown Claims. The foregoing

releases extend

to claims referenced in Section 3, which the releasing parties do not know or suspect to exist in
their favor, which if known by them would have materially affected their decision to enter into
this release. The Parties each further acknowledges that they have negotiated this Agreement
taking into account the Reyes Released Claims and the Tamayos Released Claims, and each
releasing Party voluntarily and with full knowledge of its significance, expressly waives and
relinquishes any and all rights it may have under any state or federal statute, rule or common
law principle, in law or equity, relating to limitations on general releases with respect to the
Reyes Released Claims and the Tamayos Released Claims. In furtherance of this intention, the
Parties expressly waive any and all rights and benefits conferred upon them by the provisions of
Section 1542 of the California CivilCode or similar provisions of applicable law which are 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."

8.

Bindins Asreement. The Parties agree that this Agreement shall be binding on
the Parties and their predecessors, successors, Affiliates, employees, officers, shareholders,
directors, and agents.

g,

Final Agreement: Inteeration Clause: and Modification. This Agreement, the
stipulated dismissals, and all exhibits hereto contain the entire, complete understanding and
integrated agreement between the Parties relating to the subject matter hereof, and supersedes all
prioi or contemporaneous agreements or understandings, written or oral, relating to the subject
matter herein. Any waiver, modifications or amendment of any provisions of this Agreement will
be effective only if in writing and signed by duly authorized representatives of both Parties.

10.

Applicable Law: Forum. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. The Parties consent to the jurisdiction of
the United States Court for the Northern District of Califomia, or the state court if it is
determined that the federal court lacks subject matter jurisdiction, for all disputes arising out of
this Agreement. In connection with such disputes, the Parties expressly and irrevocably waive
any objection or defense ofpersonal jurisdiction, venue or convenience ofthe forum

11.

Attornev's Fees. The Parties shall bear their own respective attorneys' fees,
costs and expenses incurred in connection with the Action, the Dispute and/or in preparation of
this Agreement. If any Party to this Agreement shall bring an action against the other Party
hereto by reason of the breach of any covenant, warranty, representation, obligation or condition

imposed by this Agreement, or otherwise relating to or arising out of this Agreement, whether
for declaratory or other relief, the prevailing party in said action shall be entitled to said party's
costs ofsuit, and reasonable afforneys' fees and expenses.

12.

Execution in Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all such counterparts collectively shallconstitute

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but onc aud
effect as an
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application
to law, the
Agreernent
14.

Paty's si

same Agrcement. A facsimile or PDF siggature shall have the ssmc forcc and
inal atgnature on this document,

Sev.e.ftEiliE In the evefi that any provision of this Agreement, or the
any such provision, is held by a tribunal of competent jruisdiction to be contary
provisions of this Agreement will remain in full force atrd effecq and this
be interpreted ae if said invalid pruvision was omitted,

AqSority ofSlepatgry,

The PartieE each repreent and warrant that each
has fult authority to enter into this Agreement qnd to bind his or her respective

entrty,

Readend [Jnde{E]!904. The Parties represent and agree &at they have
thoroughly
time to
it, that they
preceding
they have
forth in this

signed

carefully read this Agrsement in its entirery, that they have had a reasonable
its terme, that they have had the oppottuaity to coffiult wittr legal counsel about
been represented by independent legal coursel throughout tlrs negotiations
Exesution of this Agreement, that they flrlly understnud all of ie brms, and that
relied upotr atry rcprcsentations or statemeuts, whether written or oral, not set

&EEq. Thls Agreement shall not be binding onthe Parties until it has been
by both Parties, at which time it strall be deemed effective as of the Effective

Date,

DATED:

2014

Novus Optirnum,Inc.

Title; Chief Executlve Offrccr
,2014

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DATED:

/O

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,zot+

Edgardo Tamayo

DArED: /?,-fl.__.-zor+

'amayo and Gina Tamayo

Counsel for Meliza Reyes and
Novus Optimum,lnc.

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