Marketing Info v. Board of Trustees, et al

Filing 19

AMENDED COMPLAINT with Jury Demand against all defendants, filed by Marketing Information Masters, Inc..(Goonan, Gregory) (jpp, ).

Marketing Info v. Board of Trustees, et al

Doc. 19

1 Gregory P. Goonan (Cal. Bar #119821) 2 600 West Broadway, Suite 400 3 Tel: [phone] 10 11 12 Marketing Information Masters, Inc., a 13 14 15
California corporation, Plaintiff, vs. The Board of Trustees of the California State through its subdivision San Diego State individual, Case No. 06 CV 1682 JAH (JMA) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA San Diego, CA 92101 Fax: [phone] Attorneys for Plaintiff The Affinity Law Group APC

5 Marketing Information Masters , Inc.

16 University System, a public entity acting 17 University; and Robert A. Rauch, an 18 19 20 21 23 24 26
1. Defendants.

SECOND AMENDED COMPLAINT FOR MONETARY DAMAGES AND INJUNCTIVE RELIEF FOR COPYRIGHT INFRINGEMENT, CONVERSION , MISAPPROPRIATION, AND UNFAIR BUSINESS PRACTICES JURY TRIAL DEMANDED

Plaintiff Marketing Information Masters, Inc. ("Plaintiff") alleges as follows for its second

22 amended complaint:
NATURE OF ACTION This is an action for copyright infringement, conversion, misappropriation and

25 unfair business practices under federal and California law.
2. Plaintiff is a corporation owned by an individual named Michael Casinelli.

27 Plaintiff is in the business of performing marketing research studies for a variety of clients. 28 Among the marketing research studies performed by Plaintiff are st udies to evaluate the economic
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 1Dockets.Justia.com

1 impact of public events, including without limitat ion sporting events, on defined geographic 2 regions. 3
3. Among the prominent sporting events that have been held for a number of years in

4 the San Diego geographic region is a post -season college football bowl game called the Holiday 5 Bowl, which is produced by a non- profit organization tasked with the job of organizing, 6 promoting and administering the bowl game. 7
4. For a number of years, Mr. Casinelli was associated with committees and boards of

8 the Holiday Bowl. As a result, for several years, Mr. Casinelli arranged to have Plaintiff perform 9 studies of the economic impact that the Holiday Bowl had on the San Diego community. The 10 results of the studies conducted by Plaintiff were memor ialized in written reports, which are 11 protected from copying and plagiarism under the copyright laws of the United States. 12
5. Because of Mr. Casinelli's association with the Holiday Bowl, Plaintiff charged the

13 Holiday Bowl a fee for its work and for the use of its copyrighted written reports that was far 14 below the market rate that an entity like the Holiday Bowl organization ordinarily would pay for 15 the preparation and use of economic impact studies like those prepared for the Holiday Bowl by 16 Plaintiff. 17
6. The la st economic impact study prepared by Plaintiff for the Holiday Bowl

18 organization assessed the impact of the 2003 Holiday Bowl on the San Diego community. The 19 results of such study were memorialized in a written report (the "2003 Economic Impact Report") 20 protected under the United States copyright laws. Plaintiff delivered the 2003 Economic Impact 21 Report to the Holiday Bowl organization in or about February 2004. 22
7. After delivering the 2003 Economic Impact Report to the Holiday Bowl

23 organization, Plaintiff decided that it could and would no longer charge below- market rates for the 24 preparation of economic impact studies for the Holiday Bowl. Consequently, Mr. Casinelli 25 informed the executives of the Holiday Bowl organization that the Holiday Bowl would need t o 26 pay a market rate for Plaintiff's economic impact studies from and after the 2003 study. 27
8. The Holiday Bowl organization was not willing to pay market rates to Plaintiff for

28 Plaintiff's economic impact studies. Instead, the Holiday Bowl contracted with t he Center for
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 2-

1 Hospitality and Tourism Research at San Diego State University (the "SDSU Center for 2 Hospitality and Tourism Research") conduct the economic impact study for the 2004 Holiday 3 Bowl. 4
9. Defendant Robert A. Rauch was the director of the SDSU Center for Hospitality

5 and Tourism Research at all relevant times and was the leader of the 2004 economic impact 6 research study for the Holiday Bowl. 7
10. Unfortunately, however, Mr. Rauch and the SDSU Center for Hospitality and

8 Tourism Research did not generate thei r own original work product in connection with the 2004 9 economic impact research study for the Holiday Bowl. Instead, Mr. Rauch and the SDSU Center 10 for Hospitality and Tourism Research obtained a copy of Plaintiff's copyrighted 2003 Economic 11 Impact Report and blatantly copied and plagiarized Plaintiff's copyrighted 2003 Economic Impact 12 Report to prepare a written report for the Holiday Bowl about the purported economic impact of 13 the 2004 Holiday Bowl on the San Diego community. 14
11. To make matters worse, the data and statistics presented by Mr. Rauch and the

15 SDSU Center for Hospitality and Tourism Research were false, distorted and over -inflated, and 16 did not accurately reflect the true economic impact of the 2004 Holiday Bowl on the San Diego 17 community. Such falsification and distortion of the economic data was caused in large part by the 18 fact that Mr. Rauch and the SDSU Center for Hospitality and Tourism Research simply copied 19 Plaintiff's 2003 Economic Impact Report rather than independently performing a legitimate 20 economic impact study and then independently writing a report about such study. 21
12. In doing the acts and things described in this complaint, Mr. Rauch and the SDSU

22 Center for Hospitality and Tourism Research are guilty of infringing Plaintiff's copyrigh t rights, 23 and also are guilty of conversion and unfair business practices under California law. Indeed, 24 Plaintiff is informed and believes and on that basis alleges that San Diego State University 25 conducted its own internal investigation after learning ab out the wrongful conduct of Mr. Rauch 26 and the SDSU Center for Hospitality and Tourism Research, and itself concluded that Mr. Rauch 27 and the SDSU Center for Hospitality and Tourism Research were guilty of plagiarizing Plaintiff's 28 2003 Economic Impact Report.
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 3-

1

13.

Plaintiff brings this action to secure the following relief under federal and

2 California law: (1) injunctive relief prohibiting Defendants, and anyone else acting in concert 3 and/or participation with Defendants, from continuing to infringe or otherwise use Plaintiff's 4 copyrighted materials, specifically the 2003 Economic Impact Report; (2) and monetary damages 5 for Defendants' past and continuing infringement of Plaintiff's copyrights, conversion, 6 misappropriation, and unfair business practices, including without limitat ion disgorgement of all 7 profit and gain that Defendants, and each of them, have achieved from their wrongful acts. 8 9
14. JURISDICTION AND VENUE This Court has jurisdiction over this matter pursuant to (i) 28 U.S.C. § 1331 (action

10 arising under the laws of the United States); (ii) 28 U.S.C. § 1338(a) (action arising under 11 copyright law); (iii) 28 U.S.C. §1338(b) (claims for unfair competition joined with claims under 12 the copyright law); and (iv) principles of pendant jurisdiction. 13 15
15. Venue is proper in this district pursuant to 28 U.S.C. § 1391 (b,c) and 28 U.S.C. §

14 1400(a).
16. Plaintiff has complied with all requirements of California Government Code §

16 945.4 and 1 7 U.S.C. §§ 410 and 411. The 2003 Economic Impact Report is protected United 17 States Copyrigh t Registration No. TX 6-413 -349, issued effective August 10, 2006. A true and 18 correct copy of United States Copyright Registration No. TX 6-413-349 is submitted herewith as 19 Exhibit 1. 20 21 23
17. THE PARTIES Plaintiff is a corporation organized and existing under th e laws of the State of

22 California with its principal place of business in El Cajon, California.
18. Defendant The Board of Trustees of the California State University System is a

24 public entity of unknown form which did business in San Diego, California by oper ating the 25 university campus of San Diego State University. Defendant The Board of Trustees of the 26 California State University System is referred to herein as "San Diego State University." 27
19. Plaintiff is informed and believes and on that basis alleges that t he SDSU Center

28 for Hospitality and Tourism Research discussed herein was a program, subdivision and/or entity
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 4-

1 of unknown form managed and controlled by San Diego State University. 2
20. Defendant Robert A. Rauch is an individual who resides and works in San Diego,

3 California. Mr. Rauch was affiliated with The SDSU Center for Hospitality and Tourism 4 Research at all relevant times, but Plaintiff does not know whether Mr. Rauch was an employee of 5 San Diego State University or an outside consultant with whom San Diego State University 6 contracted to perform services for and on behalf of San Diego State University and t he SDSU 7 Center for Hospitality and Tourism Research . 8
21. Plaintiff sues Mr. Rauch both in his individual capacity as well as in his capacity as

9 a public employee to the extent that Mr. Rauch was in fact an employee of San Diego State 10 University. Mr. Rauch engaged in the wrongful acts alleged herein both in his individual capacity 11 and in his capacity as a public employee to the extent Mr. Rauch was an employee of San Diego 12 State University. 13 15
22. San Diego State University and Mr. Rauch are sometimes collectively referred to

14 herein as "Defendants."
23. Plaintiff is informed and believes and on that basis alleges that each defendant was

16 acting as the agent, servant, cont ractor, employee, principal, employer and/or co-conspirator of 17 each remaining defendant and, in doing the things alleged herein, was acting within the course and 18 scope of such agency, servitude and employment, and/or in furtherance of such conspiracy, and 19 with the knowledge, consent and ratification of each co -defendant. At all pertinent times, the 20 officers, directors and/or managing agents authorized or ratified the wrongful acts alleged herein, 21 and/or were personally responsible for these acts. 22 23
24. BACKGROUND FACTS The present lawsuit is based upon plagiarism, conversion and misappropriation by

24 San Diego State University and Mr. Rauch of Plaintiff's 2003 Economic Impact Report and other 25 confidential information, proprietary informat ion, trade secrets, and intellectual property, and the 26 falsification and distortion of the study results and data presented in the 2004 economic impact 27 report prepared by Defendants. 28
25. As already described, Plaintiff is in the business of market analysis. For several
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 5-

1 years prior to 2 004, Plaintiff was awarded a contract by the organization that coordinated and put 2 on the Holiday Bowl (a post season college football game) to conduct studies about the economic 3 impact of the Holiday Bowl on the San Diego economy. 4
26. The Holiday Bowl organization used Plaintiff's studies for a variety of purposes,

5 including without limitat ion marketing and publicity. The Holiday Bowl also used the economic 6 impact studies performed by Plaintiff to obtain large grants of public funds from the City of San 7 Diego , the County of San Diego, and the San Diego Unified Port District. 8
27. Plaintiff's study methodology, results, findings and conclusions, explanation and

9 commentary on such results, findings and conclusions, and other insights were documented in 10 written reports prepared by Plaintiff for the Holiday Bowl. Each report prepared by Plaintiff is a 11 separate work protected by the copyright laws of the United States, and Plaintiff owns the 12 copyright rights in each of such reports. 13
28. Consequently, none of the written rep orts could be copied, reproduced, distributed,

14 transferred or sold without Plaintiff's permission and consent. Likewise, derivative works could 15 not be prepared based upon Plaintiff's reports without Plaintiff's permission and consent. 16
29. The work at issue in this case is the economic impact report prepared by Plaintiff in

17 2004 regarding the economic impact of the 2003 Holiday Bowl on the San Diego community. 18 Such report is referred to herein as Plaintiff's "2003 Economic Impact Report." 19
30. Prior to 2004, the Holiday Bowl committee paid Plaintiff the sum of $15,000.00

20 per year to perform economic impact studies for the Holiday Bowl. The $15,000.00 sum charged 21 by Plaintiff was far below the market value for studies like Plaintiff's economic impact studies. 22
31. In negotiations for the contract for the 2004 study, Plaintiff advised the Holiday

23 Bowl organization that it could no longer perform the economic impact study for the $15,000.00 24 sum that it previously charged. Instead, Plaintiff a dvised the Holiday Bowl organization t hat it 25 would have to charge the Holiday Bowl the market rate for its work. 26
32. The Holiday Bowl organization refused to enter into a contract to pay Plaintiff a

27 market rate for its work. Instead, the Holiday Bowl organization contracted with San Diego State 28 University to perform an economic impact study for the Holiday Bowl for 2004 and for two
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 6-

1 additional years. 2 4
33. Mr. Rauch was the director of SDSU's Hospitality and Tourism Research function

3 and oversaw the preparation of the 2004 study and report by San Diego State University.
34. In or about November 2003, Mr. Rauch contacted Mr. Casinelli (Plaintiff's owner

5 and principal) and asked Casinelli to serve as a consultant to Mr. Rauch and SDSU in connection 6 with the preparation of the 2004 economic impact report. Mr. Rauch asked Mr. Casinelli to serve 7 as a consultant because, according to Mr. Rauch, he did not know how to do the economic impact 8 study and Mr. Rauch knew Plaintiff and Mr. Casinelli were experienced in performing such 9 studies. Mr. Casinelli refused Mr. Rauch 's offer. 10
35. After his conversation with Mr. Rauch, Mr. Casinelli contacted the executive

11 director of the Holiday Bowl and expressly warned him that neither San Diego State University 12 nor Mr. Rauch should be given access to the questionnaires and/or the work papers from the 13 previous studies performed by Plaintiff because such materials were Plaintiff's proprietary 14 information and intellectual property which neither San Diego State University nor Mr. Rauch had 15 any right to access or use. 16
36. Notwithstanding the forgoing, and even though Plaintiff's 2003 Economic Impact

17 Report was protected by copyright, SDSU and Mr. Rauch simply copied and plagiarized 18 substantial portions of Plaintiff's 2003 Economic Impact Report and other proprietary informat ion 19 and intellectual property, substituting different data, to prepare the 2004 SDSU economic impact 20 report instead of creating their own original report. 21
37. In copying and plagiarizing Plaintiff's 2003 Economic Impact Report, Mr. Rauch

22 and San Diego State University for the most part did not even bother to re-type the 2003 23 Economic Impact Report. Instead, they simply scanned the report into a word processing program 24 and then changed some of the data. 25
38. In other cases, San Diego State University and Mr. Rauch copied and/o r arranged

26 to have others under their management and control copy, verbatim and/or in substantial portion 27 relevant materials from the 2003 Economic Impact Report and Plaintiff's other proprietary 28 information and intellectual property.
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 7-

1

39.

The data and statistics presented by Mr. Rauch and the SDSU Center for

2 Hospitality and Tourism Research were false, distorted and over-inflated, and did not accurately 3 reflect the true economic impact of the 2004 Holiday Bowl on the San Diego community. Such 4 falsification and distortion of the economic data was caused in large part by the fact that Mr. 5 Rauch and the SDSU Center for Hospitality and Tourism Research simply copied Plaintiff's 2003 6 Economic Impact Report rather than independently perfor ming a legitimate economic i mpact 7 study and then independently writing a report about such study. 8
40. By doing the wrongful acts alleged herein, Defendants i nfringed Plaintiff's

9 copyrights, misappropriated, converted and plagiarized Plaintiff's property, and committed unfair 10 business practices. 11 13
41. Mr. Rauch has admitted to Mr. Casinelli and the media that Defendant in fact

12 copied and plagiarized Plaintiff's property.
42. Moreover, Plaintiff is informed and believes and on that basis alleges that San

14 Diego State University conducted an internal i nvestigation about Defendants' wrongful acts and 15 concluded that plagiarism had in fact occurred. 16
43. Plaintiff is informed and believes and on that basis alleges that the Holiday Bowl

17 used the 2004 economic impact report to obtain substantial governmental gran ts from a number of 18 sources, including without limitat ion, the City of San Diego, the County of San Diego and the San 19 Diego Unified Port District. 20
44. Plaintiff is informed and believes and on that basis alleges that both Mr. Rauch and

21 San Diego State University have actively advertised and promoted their involvement in and 22 preparation of the 2004 economic impact study for the Holiday Bowl and, as a result of such 23 promotional activities, have generated contracts for further and additional work and corresponding 24 revenues and profits. 25 26 27
45. FIRST CLAIM FOR RELIEF (Copyright Infringement) Plaintiff realleges and incorporates herein by this reference the allegations of

28 paragraphs 1 through 44 of this Complaint as though set forth in full.
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 8-

1 3 5

46.

At all relevant times, Plaintiff has been the proprietor and owner of all right, title,

2 and interest in and to all copyright rights in the 2003 Economic Impact Report.
47. T he 2003 Economic Impact Report is protected against copying and infringement

4 under the copyright laws of the United States.
48. In doing the acts and things a lleged herein, Defendants have knowingly and

6 willfully copied protect ed elements of the 2003 Economic Impact Report and/or have prepared 7 derivative works derived from the protecte d elements of the 2003 Economic Impact Report. 8 10 12 14
49. Defendants' actions as alleged herein were not random acts and constitute a

9 deprivation of Plaintiff's property without due process of law .
50. Defendants' copying and misuse of Plaintiff's copyrighted materials has been done,

11 and is being done, without the consent or permission of Plaintiff.
51. The actions of Defendants as alleged herein have infringed and continue to infringe

13 Plaintiff's copyright rights in the 2003 Economic Impact Report.
52. Defendant Rauch has personally infringed Plaintiff's copyright rights in the 2003

15 Economic Impact Report. Defendant Rauch also has contributed to and/or aided and abetted San 16 Diego State University's infringement of Plaintiff's copyright rights as alleged herein. 17 19
53. Defendants' infringement of Plaintiff's copyright rights was and is a willful,

18 knowing and deliberate infringement.
54. Plaintiff is informed and believes, and on that basis alleges, that it has lost and will

20 continue to lose revenues and has sustained and will continue to sustain damages due to the 21 actions of Defe ndants. Defendants' wrongful conduct also has deprived and will continue to 22 deprive Plaintiff o f opportunities for expanding its business and goodwill. 23
55. Plaintiff is entitled to recover from Defendants the damages it has sustained and

24 will sustain, and any gains, profits and advantages obtained by Defendants as a result of 25 Defendants' acts of infringement as alleged herein, in an amount according to proof at trial. 26
56. Plaintiff is informed and believes, and on that basis alleges, that unless enjoined by

27 this Court, Defendants intend to continue their course of conduct and to wrongfully use, infringe 28 upon, and profit from Plaintiff's copyrighted materials and works derived from such copyrighted
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 9-

1 materials. 2
57. As a direct and proximate result of the acts of Defendants as alleged herein,

3 Plaintiff already has suffered irreparable damage. Plaintiff has no remedy at law and will continue 4 suffer irreparable injury unless Defendants are restrained and enjoined from further infringement 5 of Plaintiff's copyright rights. 6 7 505. 8 9 10 12
59. SECOND CLAIM FOR RELIEF (Conversion) Plaintiff realleges and incorporates herein by this reference paragraphs 1 through 58. Plaintiff is entitled to an award of attorneys fees and costs pursuant to 17 U.S.C. §

11 58 of this Complaint as though set forth in ful l.
60. Plaintiff is the owner of tangible materials and intangible ideas (the "Property")

13 created and generated by Plaintiff in connection with Plaintiff's work in doing the various 14 economic impact studies, reports and surveys in connection with its business including, without 15 limitation, questionnaires, questionnaire design strategies, research strategies, mathematical 16 equations, data gathering techniques, training techniques, sample selection, quality control 17 procedures, data analysis techniques, work papers, methodologies and other tangible and 18 intangible property generated by Plaintiff in connection with such work. 19
61. Plaintiff is informed and believes and on that basis alleges that Defendants have

20 used Plaintiff's tangible and intangible Property to conduct multiple economic impact studies and 21 surveys. Plaintiff is informed and believes and on that basis alleges that such wrongful use by 22 Defendants was not limited to the creation of the 2004 economic impact study for the Holiday 23 Bowl (which is addressed by Plaintiff's claim for copyright infringement) but also extends to the 24 creation and conduct of other economic impact studies and surveys. 25 27
62. By engaging in the wrongful acts alleged herein, Defendants have interfered with

26 Plaintiff's right, title and interest in and to the Property.
63. The wrongful acts of Defendants as alleged herein constitute conversion of the

28 Property under California law.
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 10 -

1

64.

Plaintiff's claim for conversion under California law is not preempted by the

2 Copyright Act for the reasons alleged herein. [See G.S. Rasmussen & Assoc. v. Kalita Flying
th 3 Service, Inc., 958 F.2d 896, 904 (9 Cir. 1992).]

4

65.

As a direct, proximate, and legal result of Defendants' conversion as alleged herein,

5 Plaintiff has suffered, continues to suffer, and in the future will suffer, actual, consequential and 6 incidental damages in an amount according to proof at trial. 7
66. Defendants, and each of them, did the acts and things alleged deliberately,

8 maliciously, with intent to injure and oppress Plaintiff, and in conscious disregard of the rights of 9 Plaintiff. Moreover, the conduct of Defendants, and each of them, constitutes fraudulent, 10 malicious, oppressive and/or despicable conduct. Plaintiff therefore is entitled to punitive and 11 exemplary damages against Defendants, and each of them, in an amount sufficient to punish and 12 deter Defendants, according to proof at trial. 13 14 15 17
67. THIRD CLAIM FOR RELIEF (Misappropriation) Plaintiff realleges and incorporates herein by this reference paragraphs 1 through

16 66 of this Complaint as though set forth in full.
68. T he Property including, without limitation, questionnaires, questionnaire design

18 strategies, research strategies, mathematical equations, data gathering techniques, training 19 techniques, sample selection, quality control procedures, data analysis techn iques, work papers, 20 methodologies and other tangible and intangible property, constitutes confidential, proprietary and 21 trade secret information owned by Plaintiff. 22 24 26
69. Such informat ion, materials and Property derive substantial economic value from

23 not being known to the public and/or Plaintiff's competitors.
70. Such informat ion is the subject of efforts that are reasonable under the

25 circumstances to maintain its secrecy.
71. Plaintiff is informed and believes and on that basis alleges that Defendants used

27 Plaintiff's confidential and proprietary informat ion, trade secrets and Property to conduct multiple 28 economic impact studies and surveys. Plaintiff is informed and believes and on that basis alleges
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 11 -

1 that such wrongful use by Defendants was not limited to the creatio n of the 2004 economic impact 2 study for the Holiday Bowl (which is addressed by Plaintiff's claim for copyright infringement) 3 but also extends to the creation and conduct of other economic impact studies and surveys. 4
72. Plaintiff is informed and believes and on that basis alleges that Defendants

5 disclosed to multiple third persons and entities Plaintiff's confidential and proprietary information , 6 t rade secrets and Property. In doing so, Defendants violated the confidentiality and secrecy that 7 protected Plaint iff's materials. 8
73. The actions of Defendant s as alleged herein constitute the misappropriation of

9 Plaintiff's confidential and proprietary informat ion and trade secrets in violation of the Uniform 10 Trade Secrets Act, California Civil Code § 3426 et seq. 11
74. As a direct, proximate, and legal result of Defendants' wrongful acts as alleged

12 herein, Plaintiff has suffered, continues to suffer, and in the future will suffer, actual, 13 consequential and incidental damages in an amount according to proof at trial. 14
75. Plainti ff is entitled to recover from Defendants the damages it has sustained and

15 will sustain, and any gains, profits and advantages obtained by Defendant as a result of 16 Defendant's acts of misappropriation as alleged herein, in an amount according to proof at trial. 17
76. Defendants did the acts and things alleged deliberately, maliciously, with intent to

18 injure and oppress Plaintiff, and in conscious disregard of the rights of Plaintiff. Moreover, the 19 conduct of Defendants constitutes oppressive and/or despicable conduct. Plaintiff therefore is 20 entitled to punitive and exemplary damages against Defendant s in an amount sufficient to punish 21 and deter Defendant s, according to proof at trial. 22
77. Plaintiff is informed and believes and on that basis alleges that Defendants will

23 continue to misuse and misappropriate Plaintiff's proprietary and confidential informat ion and 24 trade secrets unless Defendant s are restrained and enjoined by the Court. If Defendants are not 25 restrained and enjoined by the Court, Plaintiff will suffer great and irreparable harm, for which 26 money damages will not afford adequate relief because money damages cannot and will not 27 compensate Plaintiff for such injury to its business and goodwill. 28
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 12 -

1 3 4 5 7 9

78.

Plaintiff is entitled to an award of attorneys fees pursuant to Section 3426.4 of the

2 California Civil Code.
FOURTH CLAIM FOR RELIEF (Unfair Business Practices) 79. Plaintiff realleges and incorporates herein by this reference paragraphs 1 through

6 78 of this Complaint as though set forth in full.
80. This is a cause of acti on for unfair business practices in violation of California

8 Business and Professions Code § 17200 et seq.
81. California Business & Professions Code section 17200 provides that unfair

10 competition means and includes "any unlawful, unfair or fraudulent business act or practice and 11 unfair, deceptive, untrue or misleading advertising." 12
82. By and through their conduct as alleged herein, Defendant s ha ve engaged in

13 activities which constitute unlawful and unfair business practices prohibited by Business & 14 Professions Cod e section 17200 et seq. 15
83. As a result of their unlawful and unfair business practices in violation of Business

16 and Professions Code section 17200, Defendants have received and continues to receive unearned 17 commercial benefits at the expense of Plaintiff and the public. 18 20 22
84. The acts and conduct alleged herein are unlawful, unfair, deceptive, and/or

19 misleading and constitute a violation of Business & Professions Code section 17200 et seq.
85. The unlawful and unfair business practices of Defendants as alleged herein pr esent

21 a continuing threat to members of the public.
86. As a direct and legal result of their unlawful and unfair business practices as

23 described herein, Defendants have been and will be unjustly enriched by the receipt of substantial 24 sums of money which are i ll-gotten gains and profits. 25
87. Pursuant to California Business and Professions Code sections 17203 and 17204,

26 Plaintiff seeks an order of this court: (i) compelling Defendants to make restitution to Plaintiff for 27 all funds unlawfully and unfairly obtained by Defendant s as a result of their violations of 28 California Business and Professions Code section 17200 et seq. and/or disgorge all profits
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 13 -

1 received as a result of the violations; and (ii) declaring that Defendants have violated the 2 provisions of California Business & Professions Code sections 17200 et seq. 3
88. In prosecuting this cause of action for the enforcement of important rights affecting

4 the public interest, Plaintiffs seek to recover attorneys' fees under section 1021.5 of the Code of 5 Civil Procedure. 6 7 8
1. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief as follows: For a n injunction restraining and enjoining Defendants, and their agents, servants,

9 employees, affiliates, and all others in active concert or participation with them from (1) directly 10 or indirectly infringing Plaintiff's copyright rights in the 2003 Economic Impact Report ; and (ii) 11 from further acts of unfair competition as alleged herein. 12
2. For an order requiring Defendants to destroy immediately any and all tangible

13 materials in Defendants' possession, custody or control shown by the evidence to infringe 14 Plaintiff's copyright rights. 15
3. For an order finding that, by the acts complained of herein, Defendants have

16 engaged in unfair business practices, in violation of California Business and Professions Code §§ 17 17200 et seq. 18
4. That judgment be entered for Plaintiff and against Defendants, and each of them,

19 for the actual damages suffered by Plaintiff in an amount according to proof at trial as a result of 20 Defendants' wrongful acts as alleged herein. 21
5. T hat judgment be entered for Plaintiff and against Defendants, and each of them,

22 for the amount of profits earned by Defendants, and each of them, in an amount according to proof 23 at trial as a result of Defendants' wrongful acts as alleged herein. 24 26 27 28
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 14 -

6.

For an award of punitive and exemplary damages in an a mount to be proven at trial

25 in an amount sufficient to punish and deter Defendants.
7. For an award of attorneys' fees to the maximum extent permitted by law.

1 2 3 proper. 4 5 6

8. 9.

For costs of suit incurred herein; and For such other and further relief permitted by law that the Court may deem just and

7 DATED: February 25, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

THE AFFINITY LAW GROUP APC

By: /s/ Gregory P. Goonan Gregory P. Goonan Attorneys for Plaintiff Marketing Information Masters , Inc.

____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 15 -

1 2 3 4 5 DATED: February 25, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEMAND FOR JURY TRIAL Plaintiff Marketing Information Masters, Inc. hereby demands a trial by jury.

THE AFFINITY LAW GROUP APC

By: /s/ Gregory P. Goonan Gregory P. Goonan Attorneys for Plaintiff Marketing Information Masters, Inc.

____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 16 -

1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
____________________________________________________________________________________________ SECOND AMENDED COMPLAINT - 17 -

Certificate of Service

The undersigned hereby certifies that on this 25th day of February 2008, a true and accurate copy of the attached document was electronically filed with the Court, to be served by operation of 4 the Court's electr onic filing system, upon the following: Jonathan S. Pink, Esq. Lewis Brisbois Bisgaard & Smith LLP 650 Town Center Drive, Suite 1400 Costa Mesa, CA 92626 Attorneys for Defendants

__/s/ Gregory P. Goonan_