Elements Behavioral Health Inc et al v. Michael Marcus, et Al.

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Rule 56

C.D. Cal.July 7, 2017

1 NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8261990v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IAN A. STEWART, ESQ. (SBN: 250689) Ian.Stewart@wilsonelser.com GREGORY K. LEE, ESQ. (SBN 220354) Gregory.Lee@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 ADAM R. BIALEK (Admitted Pro Hac Vice) Adam.Bialek@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Attorneys for Plaintiffs, ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL UNITED STATES DISTRICT COURT THE CENTRAL DISTRICT OF CALIFORNIA ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL, Plaintiffs, v. MICHAEL MARCUS, and JOHN DOES 1-10, Defendants. Civil Action No.: CV14-08760-JAK-RZ PLAINTIFFS’ NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT Hearing Date: Under Submission Judge: Hon. John A. Kronstadt Case 2:14-cv-08760-JAK-RZ Document 185 Filed 07/07/17 Page 1 of 3 Page ID #:3492 2 NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8261990v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION PLEASE TAKE NOTICE THAT Plaintiffs Elements Behavioral Health, Inc. (“Elements”), Westside Sober Living Centers, Inc. d/b/a Promises Treatment Centers (“Promises”) and Nanci Stockwell (“Ms. Stockwell”) (collectively, “Plaintiffs”) hereby do move this Court for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure granting partial summary judgment in Plaintiffs’ favor and against Defendant Michael Marcus (“Defendant”) on five causes of action alleged in the Second Amended Complaint (Docket Entry No. 68). This Motion is made on the ground that Defendant is liable as a matter of law for (i) copyright infringement, 17 U.S.C. §§ 501, et seq. (Count I); (ii) trademark counterfeiting, 15 U.S.C. §§ 1114, et seq. (Count II); (iii) trademark dilution by tarnishment, 15 U.S.C. §§ 1125, et seq. (Count III); (iv) false impersonation, Cal. Pen. Code § 528.5 (Count IV); and harassment, Cal. Civ. Code § 1708.7 (Count IX). There are no material facts in dispute as to any of these claims. This Motion is based upon this Notice, the concurrently filed Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, Memorandum of Points and Authorities, the Declarations of Adam R. Bialek, Nanci E. Stockwell, and Edith Bauer, the exhibits attached thereto and the pleadings and records on file herein, of which the Court is respectfully requested to take judicial notice, and Case 2:14-cv-08760-JAK-RZ Document 185 Filed 07/07/17 Page 2 of 3 Page ID #:3493 3 NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8261990v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 upon such other and further matters as may be presented in connection with this Motion. Dated: July 7, 2017 Respectfully Submitted, /s/Adam Bialek Adam R. Bialek (Admitted Pro Hac Vice) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Ian A. Stewart Gregory K. Lee WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 Attorneys for Plaintiffs Case 2:14-cv-08760-JAK-RZ Document 185 Filed 07/07/17 Page 3 of 3 Page ID #:3494 1 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IAN A. STEWART, ESQ. (SBN: 250689) Ian.Stewart@wilsonelser.com GREGORY K. LEE, ESQ. (SBN 220354) Gregory.Lee@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 ADAM R. BIALEK (Admitted Pro Hac Vice) Adam.Bialek@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Attorneys for Plaintiffs, ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL UNITED STATES DISTRICT COURT THE CENTRAL DISTRICT OF CALIFORNIA ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL, Plaintiffs, v. MICHAEL MARCUS, and JOHN DOES 1-10, Defendants. Civil Action No.: CV14-08760-JAK-RZ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 1 of 32 Page ID #:3495 i MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 2 UNDISPUTED FACTS ............................................................................................. 3 ARGUMENT ............................................................................................................. 3 I. SUMMARY JUDGMENT SHOULD BE GRANTED ON COUNTS I, II, III, IV and IX OF THE SECOND AMENDED COMPLAINT ....................................................................................... 3 a. Mr. Marcus Infringed Ms. Stockwell’s Copyrights. .................. 5 i. Ms. Stockwell Owns Valid Copyrights in the Infringed Materials. .......................................................... 6 ii. Mr. Marcus Reproduced, Publicly Displayed, Distributed, and Made Derivative Works of Ms. Stockwell’s Copyrighted Works Without Authorization. ................................................................... 6 b. Mr. Marcus Counterfeited Plaintiffs’ Trademarks. .................... 9 i. Plaintiffs Own Valid Trademarks. ................................. 10 ii. Mr. Marcus Counterfeited Plaintiffs’ Trademarks. ........ 11 iii. Mr. Marcus’ Counterfeiting Created a Likelihood of Confusion. .................................................................. 12 c. Mr. Marcus Diluted the Promises Trademark. ......................... 15 i. The Registered Promises Trademark is Famous and Distinctive. ............................................................... 15 ii. Mr. Marcus’ Use of the Promises Trademark in Commerce. ..................................................................... 17 iii. The Promises Trademark Was Famous in 2014. ........... 17 iv. Mr. Marcus’ Use is Likely to Tarnish the Promises Trademark. ..................................................................... 17 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 2 of 32 Page ID #:3496 ii MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. Mr. Marcus Impersonated Plaintiff Nanci Stockwell. .............. 19 i. Mr. Marcus’ Impersonation of Ms. Stockwell Was Credible. ......................................................................... 19 ii. Mr. Marcus Impersonated Ms. Stockwell to Harm, Intimidate, or Threaten. .................................................. 20 e. Mr. Marcus Harassed Plaintiff Nanci Stockwell. ..................... 21 i. Mr. Marcus engaged in a pattern of conduct Intending to Alarm or Harass Ms. Stockwell ................. 22 ii. Mr. Marcus’ Conduct Caused Ms. Stockwell to Reasonably Fear for Her Safety and Suffer Substantial Emotional Distress as any Reasonable Person Would Suffer. ..................................................... 23 iii. Mr. Marcus’ Conduct Threatened Ms. Stockwell and Violated the Preliminary Injunction. ....................... 24 CONCLUSION ........................................................................................................ 25 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 3 of 32 Page ID #:3497 iii MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ................................................................................ 5 Adams v. Agrusa, 2016 U.S. Dist. LEXIS 187818 (C.D. Cal. July 1, 2016) ...................................... 7 Advance Magazine Publrs. Inc. v. Leach, 466 F. Supp.2d 628 (D. Md. 2006) ........................................................................ 8 AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. Cal. 1979) ............................................................ 10, 12, 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................... 3 Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966 (9th Cir. 2007) .......................................................................... 10, 11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................... 3 Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175 (9th Cir. 1988) .............................................................................. 10 Deckers Outdoor Corp. v. Ozwear Connection Pty, Ltd., 2014 U.S. Dist. LEXIS 132169 (C.D. Cal. Sept. 18, 2014) .......................... 10, 13 Educational Testing Serv. v. Simon, 95 F. Supp.2d 1081 (C.D. Cal. 1999) .................................................................... 5 GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199 (9th Cir. 2000) ........................................................................ 10, 13 Gucci Am., Inc. v. Pieta, 2006 U.S. Dist. LEXIS 96701 (C.D. Cal. Jan. 23, 2006) ...................................... 9 Hakkasan LV, LLC v. Adamczyk, No. 14-cv-01717, 2015 U.S. Dist. LEXIS 110307 (D. Nev. Aug. 19, 2015) ........ 7 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 4 of 32 Page ID #:3498 iv MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hand & Nail Harmony, Inc. v. Int’l Nail Co., No. CV 15-02718, 2015 U.S. Dist. LEXIS 67421 (C.D. Cal. May 22, 2015) ....................................................................................................................... 7 Hasbro, Inc. v. Internet Entertainment Group, Ltd., 1996 U.S. Dist. LEXIS 11626, 1996 WL 84853 (W.D. Wash. 1996)................ 18 ICG-Internet Commerce Group, Inc. v. Wolf, 519 F. Supp.2d 1014 (D. Az. 2007) ................................................................... 7, 8 In re Rolando S., 197 Cal. App. 4th 936, 129 Cal. Rptr.3d 49, (Ct. of App. of Cal., 5th App. Dist. July 21, 2011) ........................................................................................ 19, 20 Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628 (9th Cir. 2008) ................................................................................ 15 Keel v. Dovey, 459 F. Supp.2d 946 (C.D. Cal. 2006) .................................................................... 5 KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004) ................................................................................ 3 Lahoti v. VeriCheck, Inc., 586 F.3d 1190 (9th Cir. 2009) .............................................................................. 15 Lockwood v. Wolf Corp., 629 F.2d 603 (9th Cir. 1980) .................................................................................. 4 McNamara v. Universal Commer. Servs., 2008 U.S. Dist. LEXIS 69961 (D. Or. Sept. 16, 2008) ..................................... 7, 8 Michaels v. Internet Entm’t Grp., 5 F. Supp.2d 823 (C.D. Cal. 1998) ........................................................................ 8 Munhwa Broad. Corp. v. Song, 2015 U.S. Dist. LEXIS 77909 (C.D. Cal. May 12, 2015) ..................................... 5 Nissan Motor Co., Ltd. v. Nissan Computer Corp., No. CV 99-12980, 2007 U.S. Dist. LEXIS 103810 (C.D. Cal. Sept. 20, 2007) ..................................................................................................................... 19 Nordstrom, Inc. v. Nomorerack Retail Group, Inc., 2013 U.S. Dist. LEXIS 41810 (W.D. Wash. Mar. 25, 2013) ........................ 15, 18 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 5 of 32 Page ID #:3499 v MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Official Airline Guides v. Goss, 6 F.3d 1385 (9th Cir. 1993) .................................................................................. 14 Panavision Int'l L.P. v. Toeppen, 945 F. Supp. 1296 (C.D. Cal. 1996) .................................................................... 18 PlayMakers, LLC v. ESPN, Inc., 297 F. Supp.2d 1277 (W.D. Wash. 2003) ............................................................ 18 Pub. Impact, LLC v. Boston Consulting Grp., Inc., 169 F. Supp.3d 278 (D. Mass. 2016) ................................................................... 12 QS Wholesale, Inc. v. Rox Volleyball, Inc., 2015 U.S. Dist. LEXIS 95767 (C.D. Cal. July 19, 2015) .................................... 16 Rosen v. R & R Auction Co., LLC, 2016 U.S. Dist. LEXIS 187610 (C.D. Cal. Aug. 31, 2016) ................................... 6 Scott v. Harris, 550 U.S. 372 (2007) ............................................................................................... 4 Senese v. Hindle, 2011 U.S. Dist. LEXIS 116797 (E.D.N.Y. Sept. 9, 2011) .................................. 11 Skyros, Inc. v. Mud Pie, LLC, 2016 U.S. Dist. LEXIS 72547 (W.D. Tenn. June 3, 2016) ................................. 12 The Name LLC v. Ortiz, 2010 U.S. Dist. LEXIS 121413 (S.D.N.Y. Nov. 16, 2010) ................................. 17 Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir. 2010) ................................................................................... 18 UL LLC v. Space Chariot, Inc., No. 16-cv-08172, 2017 U.S. Dist. LEXIS 60585 (C.D. Cal. Apr. 20, 2017) ........ 9 United Fabrics INt’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255 (9th Cir. 2011) ................................................................................ 5 Statutes 15 U.S.C. § 1057(b) ........................................................................................... 10, 11 15 U.S.C. § 1065 ................................................................................................ 11, 15 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 6 of 32 Page ID #:3500 vi MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 U.S.C. § 1114 .................................................................................................. 9, 15 15 U.S.C. § 1125(c)(1) ............................................................................................ 15 15 U.S.C. § 1125(c)(2)(C) ....................................................................................... 17 15 U.S.C. § 1127 ........................................................................................................ 9 17 U.S.C. § 106 .......................................................................................................... 5 17 U.S.C. § 106(1) ..................................................................................................... 7 17 U.S.C. § 106(2) ..................................................................................................... 8 17 U.S.C. § 106(3) ..................................................................................................... 8 17 U.S.C. § 106(5) ..................................................................................................... 7 17 U.S.C. § 410(c) ..................................................................................................... 5 17 U.S.C. § 501 .......................................................................................................... 8 Cal. Civ. Code § 527.6............................................................................................. 21 Cal. Civ. Code § 527.6(a) ........................................................................................ 21 Cal. Civ. Code § 1708.7 .......................................................................................... 21 Cal. Civ. Code § 1708.7(a) ...................................................................................... 21 Cal. Civ. Code § 1708.7(b)(1) ................................................................................. 22 Cal. Civ. Code § 1708.7(b)(2) ................................................................................. 23 Cal. Civ. Code § 1708.7(b)(3) ................................................................................. 24 Cal. Civ. Code § 1708.7(b)(5) ................................................................................. 22 Cal. Civ. Code § 1708.7(b)(7) ................................................................................. 23 Cal. Pen. Code § 528.5 ...................................................................................... 19, 21 Cal. Pen. Code. § 528.5(a) ....................................................................................... 19 Cal. Pen. Code. § 528.5(b) ....................................................................................... 19 Cal. Pen. Code. § 528.5(c) ....................................................................................... 19 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 7 of 32 Page ID #:3501 vii MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Pen. Code. § 528.5(e) ....................................................................................... 19 U.S.C. § 106(5) .......................................................................................................... 8 Rules Fed. R. Civ. P. 8(b)(6) ............................................................................................... 4 Fed. R. Civ. P. 8(d) .................................................................................................... 5 Fed. R. Civ. P. 56 ....................................................................................................... 3 Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 8 of 32 Page ID #:3502 2 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRELIMINARY STATEMENT Beginning in June 2014, Defendant Michael Marcus (“Defendant” or “Mr. Marcus”), through social networking platforms, foreign and domestic e-mail service providers, and anonymous texting services, infringed Plaintiffs’ trademarks and copyrighted works, and harassed and impersonated Plaintiff Nanci E. Stockwell (“Ms. Stockwell”). This action was commenced November 12, 2014 by the filing of the Summons and Complaint. Docket Entry (“DE”) 1. On February 13, 2015, after months of impersonation, defamation and harassment of Elements and its employees, the court issued a Consent Order for a Preliminary Injunction (the “Preliminary Injunction”) under seal. Undeterred by Plaintiffs’ initiation of this action, or this Court’s entry of a Preliminary Injunction, Mr. Marcus’ infringing, harassing, and impersonating conduct continued unabated. In the Second Amended Complaint (“SAC”) filed May 4, 2015, the operative pleading in this action, Plaintiffs alleged causes of action against Defendant for: (i) copyright infringement (Count I); (ii) trademark counterfeiting (Count II); (iii) trademark dilution by tarnishment (Count III); (iv) false impersonation (Count IV); and harassment (Count IX), among others. DE 68. Mr. Marcus did not answer or respond to the SAC and, upon application by Plaintiffs (DE 181), the Clerk of the Court entered default against Mr. Marcus on June 27, 2017 for failure to plead or otherwise defend this action. DE 182. This Court Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 9 of 32 Page ID #:3503 3 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vacated the Clerk’s default and ordered Defendant to answer the SAC on or before July 10, 2017. DE 184. UNDISPUTED FACTS The undisputed facts are set forth in Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law (hereinafter “SF”) filed concurrently herewith. ARGUMENT I. SUMMARY JUDGMENT SHOULD BE GRANTED ON COUNTS I, II, III, IV and IX OF THE SECOND AMENDED COMPLAINT Rule 56 of the Federal Rules of Civil Procedure requires entry of summary judgment when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). It is not enough for the party opposing summary judgment to point to allegations or denials contained in the pleadings, or to a mere “scintilla” of evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Instead, the non- moving party must set forth, by affidavit or other admissible evidence, specific facts demonstrating the existence of an actual issue for trial. KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 10 of 32 Page ID #:3504 4 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). In the instant case, Plaintiffs have met their burden to prevail on each of the following claims against Mr. Marcus: (i) copyright infringement (Count I); (ii) trademark counterfeiting (Count II); (iii) trademark dilution by tarnishment (Count III); (iv) false impersonation (Count IV); and harassment (Count IX). It is undisputed, and supported by the evidence, that Mr. Marcus has no rights in or to Ms. Stockwell’s copyrighted photographs, or to Westside’s Promises Trademark, and his use of these assets on various websites was and is an infringement of Plaintiffs’ intellectual property rights. It is further undisputed that Mr. Marcus utilized these same websites, and other communicative vehicles, to impersonate and harass Ms. Stockwell. Summary judgment in favor of Plaintiffs on these five (5) claims is therefore warranted. 1 “The party moving for summary judgment must offer evidence sufficient to support a finding upon every element of his claim for relief, except those elements admitted by his adversary.” Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980). Federal Rule of Civil Procedure 8(b)(6) states that “an allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied.” Fed. R. Civ. P. 8(b)(6); Lockwood, 629 1 As of the date of Plaintiffs’ filing of this motion, Defendant has failed to deny the allegations in the SAC by failing to file a responsive pleading. DE 184 (ordering Defendant to file an answer to the SAC on or before July 10, 2017). Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 11 of 32 Page ID #:3505 5 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.2d at 611 (finding defendant’s failure to deny allegation in complaint constitutes an admission and, as a result, “no evidence on this element was required” on summary judgment); Keel v. Dovey, 459 F. Supp.2d 946, 950 n.3 (C.D. Cal. 2006) (“Defendants’ failure to deny allegations of a complaint constitutes a judicial admission of the matters alleged. Fed. R. Civ. P. 8(d). No additional evidence is required to prove the matters so admitted.”). Upon receipt of Defendant’s Answer, a supplemental brief may be submitted upon the Court’s invitation. a. Mr. Marcus Infringed Ms. Stockwell’s Copyrights. In order to prove copyright infringement, “Plaintiffs must show (1) ownership of the allegedly infringed material and (2) violation by Defendants of at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Munhwa Broad. Corp. v. Song, 2015 U.S. Dist. LEXIS 77909, *6 (C.D. Cal. May 12, 2015) citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). The right to reproduce, distribute, and display a copyrighted work publicly are each exclusive rights accorded copyright owners pursuant to 17 U.S.C. § 106. A certificate of registration is “prima facie evidence of the validity of the copyright and the facts stated in the certificate.” 17 U.S.C. § 410(c); United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011). “There is no need to prove anything about a defendant’s mental state to establish copyright infringement; it is a strict liability tort.” Educational Testing Serv. v. Simon, 95 F. Supp.2d 1081, 1087 (C.D. Cal. 1999). Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 12 of 32 Page ID #:3506 6 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Ms. Stockwell Owns Valid Copyrights in the Infringed Materials. Here, it is undisputed that Ms. Stockwell owns valid U.S. Copyright registrations for the photographs featured on Mr. Marcus’ social networking websites. Ms. Stockwell holds a registered copyright for the Image. SF ¶¶168-70. It is likewise undisputed that Ms. Stockwell holds a registered copyright for the Profile Photo. SF ¶¶168, 172-73. A valid certificate of registration establishes Ms. Stockwell’s copyright ownership as a matter of law. Rosen v. R & R Auction Co., LLC, 2016 U.S. Dist. LEXIS 187610, *10-*11 (C.D. Cal. Aug. 31, 2016). ii. Mr. Marcus Reproduced, Publicly Displayed, Distributed, and Made Derivative Works of Ms. Stockwell’s Copyrighted Works Without Authorization. There is no dispute that Mr. Marcus created, reproduced, distributed, and displayed copies of the Image and the Profile Photo through social networking services and various websites. SF ¶¶185-254. Mr. Marcus never received authorization, license, or other consent from Ms. Stockwell to use the Image or the Profile Photo. Declaration of Nanci E. Stockwell dated July 6, 2017 (hereinafter “7/6/17 Stockwell Decl.”) ¶¶3-4. Specifically, Mr. Marcus published the Image on six (6) Twitter accounts. SF ¶186. Mr. Marcus published the Profile Photo on eight (8) Twitter accounts. SF ¶187. By publishing the Image and the Profile Photo to fourteen (14) different Twitter URLs, Mr. Marcus infringed Ms. Stockwell’s exclusive right to reproduce Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 13 of 32 Page ID #:3507 7 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Image and the Profile Photo. 17 U.S.C. § 106(1). Hakkasan LV, LLC v. Adamczyk, No. 14-cv-01717, 2015 U.S. Dist. LEXIS 110307, *19-*20 (D. Nev. Aug. 19, 2015) (granting summary judgment to plaintiffs on copyright infringement claim because defendant’s use of two copyrighted images on his website violated plaintiffs’ exclusive right to reproduce their copyrighted works); Adams v. Agrusa, 2016 U.S. Dist. LEXIS 187818, *4-*5 (C.D. Cal. July 1, 2016) (defendant’s admission that she reproduced plaintiff’s copyrighted photograph online sufficient for finding liability for direct copyright infringement); Hand & Nail Harmony, Inc. v. Int’l Nail Co., No. CV 15-02718, 2015 U.S. Dist. LEXIS 67421, *15 (C.D. Cal. May 22, 2015) (holding defendants’ reproduction of plaintiff’s photographs and promotional material on defendants’ website infringed plaintiff’s exclusive right to reproduce its copyrighted works); ICG-Internet Commerce Group, Inc. v. Wolf, 519 F. Supp.2d 1014, 1018 (D. Az. 2007) (“posting [plaintiff’s copyrighted video] to the Internet” violated plaintiff’s reproduction right under 17 U.S.C. § 106(1)). By publishing the Image and the Profile Photo to fourteen (14) different Twitter URLs, Mr. Marcus infringed Ms. Stockwell’s exclusive right to display the Image and the Profile Photo publicly. 17 U.S.C. § 106(5); McNamara v. Universal Commer. Servs., 2008 U.S. Dist. LEXIS 69961, *4 (D. Or. Sept. 16, 2008) (defendants’ publication of plaintiff’s copyrighted work on website under their control violated plaintiff’s rights to reproduce, to prepare derivative works, and to Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 14 of 32 Page ID #:3508 8 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 display the copyrighted work publicly); ICG-Internet Commerce Group, Inc. v. Wolf, 519 F. Supp.2d 1014, 1018 (D. Az. 2007) (displaying plaintiff’s copyrighted video on defendant’s website “was an act of public display in violation of 17 U.S.C. §§ 501, 106(5).”); Advance Magazine Publrs. Inc. v. Leach, 466 F. Supp.2d 628, 637 (D. Md. 2006) (“Displaying a copy of a work on the Internet…falls squarely within the definition of ‘public display.’ Defendant's posting of Plaintiff's publications on his websites infringe Plaintiff's right of display.”). By publishing the Image and the Profile Photo to fourteen (14) different Twitter URLs, Mr. Marcus infringed Ms. Stockwell’s exclusive right to distribute the Image and the Profile Photo. 17 U.S.C. § 106(3); Michaels v. Internet Entm’t Grp., 5 F. Supp.2d 823, 830-31 (C.D. Cal. 1998) (distributing copyrighted videotape on the Internet “would conflict with the plaintiffs’ exclusive rights to distribute copies of the tape to the public.”). Lastly, Mr. Marcus infringed Ms. Stockwell’s exclusive right to make derivative works (§ 106(2)) of the Image by superimposing a mustache and the term “BOO!” over the Image and publishing it to the @nanciistockwell Twitter profile page: https://twitter.com/nanciistockwell. SF ¶¶ 249-50; McNamara v. Universal Commer. Servs., 2008 U.S. Dist. LEXIS 69961, *4 (D. Or. Sept. 16, 2008) (defendants’ publication of plaintiff’s copyrighted work on website under their control violated plaintiff’s rights to reproduce, to prepare derivative works, and to display the copyrighted work publicly). Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 15 of 32 Page ID #:3509 9 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, because there are no genuine issues of material fact in dispute regarding Mr. Marcus’ unauthorized use of Ms. Stockwell’s copyrighted works, Ms. Stockwell is entitled to summary judgment on her claim for copyright infringement. b. Mr. Marcus Counterfeited Plaintiffs’ Trademarks. A claim for trademark counterfeiting in violation of 15 U.S.C. § 1114 is established by proving “(1) ownership of a valid trademark and (2) counterfeiting of that trademark.” Gucci Am., Inc. v. Pieta, 2006 U.S. Dist. LEXIS 96701, *9 (C.D. Cal. Jan. 23, 2006). The Lanham Act provides that “a ‘counterfeit’ is a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127. Summary judgment in favor of a plaintiff is appropriate on a claim for trademark counterfeiting when the undisputed evidence shows defendant’s use of “a spurious mark which is identical to or substantially indistinguishable from the [plaintiff’s marks] in connection with the sale, offering for sale, distribution, or advertising of any goods or services” in a manner likely to cause consumer confusion. UL LLC v. Space Chariot, Inc., No. 16-cv-08172, 2017 U.S. Dist. LEXIS 60585, *14, *25-*26 (C.D. Cal. Apr. 20, 2017). The Ninth Circuit employs an eight factor test to determine whether a likelihood of confusion exists: (1) the strength of the mark; (2) the proximity or relatedness of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the marketing channels used; (6) the degree of care customers are Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 16 of 32 Page ID #:3510 10 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 likely to exercise in purchasing the goods; (7) the defendant's intent in selecting the mark; and (8) the likelihood of expansion into other markets. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-349 (9th Cir. Cal. 1979). “When infringement is alleged to have occurred via a website, the three most important factors are the similarity of the marks, the proximity (or relatedness) of the goods or services, and the simultaneous use of the Web as a marketing channel.” Deckers Outdoor Corp. v. Ozwear Connection Pty, Ltd., 2014 U.S. Dist. LEXIS 132169, *15 (C.D. Cal. Sept. 18, 2014) citing GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000). “Neither actual confusion nor intent is necessary to a finding of likelihood of confusion.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1178 (9th Cir. 1988) (emphasis in original). i. Plaintiffs Own Valid Trademarks. Westside’s federal trademark registration for “Promises Treatment Centers” on the Principal Register of the United States Patent and Trademark Office (U.S. Reg. No. 3,000,694) (the “Promises Trademark”) is prima facie evidence of the validity of the Promises Trademark, and of Westside’s exclusive right to use the mark. SF ¶78; 15 U.S.C. § 1057(b); Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 970 (9th Cir. 2007). Westside has provided undisputed proof of its trademark registration, together with evidence of its extensive and continuous use of the mark in commerce. Declaration of Edith Bauer dated July 6, 2017 (hereinafter “Bauer Decl.”) ¶¶4-5, 8-12. Indeed, the Promises Trademark has Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 17 of 32 Page ID #:3511 11 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reached incontestable status pursuant to 15 U.S.C. § 1065 on account of its exclusive and continuous use in commerce. SF ¶79. Elements federal trademark registrations for “Elements Behavioral Health” on the Principal Register of the United States Patent and Trademark Office (U.S. Reg. No. 3,825,889 and U.S. Reg. No. 3,825,890) (the “Elements Trademarks”) 2 are likewise prima facie evidence of the validity of the Elements Trademarks, and of Element’s exclusive right to use the marks. SF ¶175; 15 U.S.C. § 1057(b); Applied Info., 511 F.3d at 970. Elements has provided undisputed proof of its trademark registration, together with evidence of its extensive and continuous use of the mark in commerce. Bauer Decl. ¶¶5, 8. The Elements Trademarks have also reached incontestable status pursuant to 15 U.S.C. § 1065 on account of their exclusive and continuous use in commerce. SF ¶176. Therefore, there is no genuine issue of material fact regarding Plaintiffs’ ownership of valid trademarks. ii. Mr. Marcus Counterfeited Plaintiffs’ Trademarks. There is no genuine dispute as to any material fact regarding Defendant Mr. Marcus’ counterfeiting. Content on Mr. Marcus’ publicly available accounts on the social networking platform Twitter utilized designations identical with, or substantially indistinguishable from the Promises Trademark and the Elements Trademarks in commerce in connection with the advertising and promotion of services. SF ¶¶188-89; Senese v. Hindle, 2011 U.S. Dist. LEXIS 116797, *23 n.28 2 The Promises Trademark and Elements Trademarks together will be referenced as “Plaintiffs’ Trademarks” unless otherwise specifically designated. Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 18 of 32 Page ID #:3512 12 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (E.D.N.Y. Sept. 9, 2011) (describing Twitter as “a web application by which users post brief status messages, visible to the public generally, accessible at www.twitter.com...”); Pub. Impact, LLC v. Boston Consulting Grp., Inc., 169 F. Supp.3d 278, 295 (D. Mass. 2016) (finding defendant’s use of mark “nearly identical” to plaintiff’s mark in defendant’s “Twitter activities” created likelihood of confusion); Skyros, Inc. v. Mud Pie, LLC, 2016 U.S. Dist. LEXIS 72547, *10- *11 (W.D. Tenn. June 3, 2016) (fact that defendant does not pay for its social media accounts, including Twitter, and that postings do not include hyperlink to e- commerce website, does not mean the postings are not advertisements). The screenshots provided to the Court showing the content of Mr. Marcus’ social media accounts prominently feature the Promises Trademark and/or the Elements Trademarks in connection with the advertising and promotion of drug and rehabilitation services. SF ¶¶188-89. There is also no genuine dispute of material fact that Mr. Marcus is not, and has never been, authorized to use the Promises Trademark or the Elements Trademarks in any way. Bauer Decl. ¶6. iii. Mr. Marcus’ Counterfeiting Created a Likelihood of Confusion. There is no genuine dispute of material fact Mr. Marcus intended for people to believe these accounts were affiliated with the Plaintiffs so he could attract followers to read his Tweets. As such, he intended to cause confusion. The three Sleekcraft factors most important in the context of Internet-based infringement Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 19 of 32 Page ID #:3513 13 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 weigh considerably in Plaintiffs’ favor. Deckers Outdoor, 2014 U.S. Dist. LEXIS 132169 at *15. Similarity of the Marks (Factor 3): The marks used by Mr. Marcus are identical to the Elements Trademarks. SF ¶¶188, 196, 208, 215, 220, 225, 236, 241, 246, 252. The marks used by Mr. Marcus are identical to the Promises Trademark. SF ¶¶189, 195, 207, 214, 219, 224, 235, 240, 245, 251. Relatedness of the Goods/Services (Factor 2): Mr. Marcus used counterfeits of Plaintiffs’ Marks in connection with advertising the exact services (drug, alcohol, and rehabilitation services) that Plaintiffs offer. SF ¶¶188-89. Indeed, Mr. Marcus’ counterfeiting arose on account of his termination from Elements, for the very purpose of causing confusion, mistake and deception in commerce among members of the purchasing public and the trade as to the true source, origin or sponsorship of the drug and rehabilitation services, educational service and mental health services provided by the Plaintiffs. SF ¶157. Mr. Marcus’ exploitation of Plaintiffs’ Marks demonstrated a clear intention to harm the Plaintiffs’ business, goodwill and reputation by associating the Plaintiffs with the content posted on Mr. Marcus’ Twitter Accounts. SF ¶¶155-59, 185-263, 267-276. However, even if Mr. Marcus utilized Plaintiffs’ Marks in connection with goods or services unrelated to those of Plaintiffs, Mr. Marcus would still be creating a likelihood of confusion between his websites and Plaintiffs’ Marks. GoTo.com, 202 F.3d at 1207 (“the use of remarkably similar trademarks on different websites creates a likelihood of confusion amongst web users” even in cases where the goods/services are not identical). Marketing Channels Used (Factor 5): Plaintiffs and Mr. Marcus are simultaneously using the Internet as the distribution channel in which the marks are displayed. Bauer Decl. ¶7. Mr. Marcus created a series of Twitter accounts to distribute information about the Plaintiffs and the rehabilitation industry. Elements similarly uses the Internet to disseminate information on its website, authentic Twitter account, and other social media accounts. The remaining Sleekcraft factors likewise weigh in Plaintiffs’ favor or are neutral on account of their immateriality to the facts of the instant case: Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 20 of 32 Page ID #:3514 14 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Strength of the Marks (Factor 1): The Promises Trademark is famous and has been in use in commerce for nearly fifteen (15) years. The Elements Trademarks have been in use in commerce for nearly a decade. Plaintiffs’ Marks are well-known throughout the United States. Bauer Decl. ¶¶4-5, 8- 12. Elements has treatment centers all around the country and has established itself as one of the premier drug and rehabilitation centers. Bauer Decl. ¶8. The widespread, unsolicited third party media coverage is indicative of the strength of Plaintiffs’ Marks. SF ¶184; Bauer Decl. ¶12. Evidence of Actual Confusion (Factor 4): Actual confusion is inevitable insofar as Mr. Marcus is using counterfeits of Plaintiffs’ Marks for the express purpose of misleading consumers into believing his false allegations and file violation reports against Plaintiffs based on his false allegations for the purpose of exacting revenge for his termination. SF ¶¶155-59, 185-263, 267-276. Moreover, at least one user on Twitter sent a “Tweet” to one of Mr. Marcus’ Twitter Accounts, inquiring whether the account was associated with Promises. In addition, the Twitter users who have “followed” these fake accounts more than likely believe that they are associated with the Plaintiffs. . Degree of Purchaser Care (Factor 6): Mr. Marcus’ use of marks identical to Plaintiffs’ Marks presents the obvious risk that consumers will be misled that the counterfeit services and information promoted by Mr. Marcus are authentic and affiliated with Plaintiffs. Defendant’s Intent in Selecting the Mark (Factor 7): Mr. Marcus’ intent in selecting the marks is very clear. Mr. Marcus desires to generate bad publicity towards the Plaintiffs to exact revenge for his dismissal. SF ¶157. Mr. Marcus, as a former employee, clearly has knowledge of Plaintiffs’ Marks. “When an alleged infringer knowingly adopts a mark similar to another’s courts will presume an intent to deceive the public.” Official Airline Guides v. Goss, 6 F.3d 1385, 1394 (9th Cir. 1993). Likelihood of Expansion into Other Markets (Factor 8): This factor is not particularly relevant to the instant case and does not favor Plaintiffs or Mr. Marcus. Plaintiffs’ evidence and Mr. Marcus’ admissions conclusively establish that Mr. Marcus advertised rehabilitation services bearing counterfeits of one or more Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 21 of 32 Page ID #:3515 15 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Plaintiffs’ Marks. Thus, since Mr. Marcus used Plaintiffs’ Marks in connection with the advertisement of the same services for which Plaintiffs’ Marks are registered, Mr. Marcus is liable as a matter of law for trademark counterfeiting in violation of 15 U.S.C. § 1114. c. Mr. Marcus Diluted the Promises Trademark. To establish trademark dilution by tarnishment, Plaintiffs must show that (1) the Promises Trademark is famous and distinctive, (2) Mr. Marcus used the Promises Trademark in commerce, (3) Mr. Marcus began using the Promises Trademark after the mark became famous, and (4) Mr. Marcus’ actions are likely to cause dilution by tarnishment. 15 U.S.C. § 1125(c)(1); Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008). “Likelihood of dilution may be found regardless of the presence of actual or likely confusion, competition or actual economic injury.” Nordstrom, Inc. v. Nomorerack Retail Group, Inc., 2013 U.S. Dist. LEXIS 41810, *27 (W.D. Wash. Mar. 25, 2013) citing 15 U.S.C. § 1125(c)(1). i. The Registered Promises Trademark is Famous and Distinctive. It is undisputed that the Promises Trademark is famous and distinctive. Bauer Decl. ¶¶4-5, 8-12. Westside owns a federal registration for the Promises Trademark on the Principal Register. SF ¶178. The Promises Trademark is valid, subsisting, and incontestable pursuant to 15 U.S.C. § 1065. SF ¶179 Lahoti v. Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 22 of 32 Page ID #:3516 16 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VeriCheck, Inc., 586 F.3d 1190, 1199 (9th Cir. 2009) ("Registration alone may be sufficient in an appropriate case to satisfy a determination of distinctiveness."). Plaintiffs have spent well over a decade rendering services under the Promises Trademark, recognized in the United States and throughout the world to be of the highest quality, and have expended large sums of money for advertising of its rehabilitation services. Bauer Decl. ¶¶4-5, 8-12. The Promises Trademark has been heavily promoted since at least as early as 2002. Id. ¶10. Plaintiffs have spent hundreds of thousands of dollars in promotions and advertisements featuring the Promises Trademark. Id. ¶11. In addition, Plaintiffs receive significant unsolicited and widespread publicity in the media in the form of third party articles and features. Id. ¶12; SF ¶184. These facts demonstrate actual recognition of the Promises Trademark. As a result of these efforts and the excellent quality of services offered under the Promises Trademark, the Promises Trademark has become famous and distinctive, and is identified by the publicly solely with Plaintiffs and their services. This undisputed evidence of the duration and extent of use of the Promises Trademark and advertising and promotion under the mark, is sufficient to establish fame for purposes of the dilution analysis. QS Wholesale, Inc. v. Rox Volleyball, Inc., 2015 U.S. Dist. LEXIS 95767, *13-*14 (C.D. Cal. July 19, 2015) (finding fame sufficiently established in absence of survey evidence). Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 23 of 32 Page ID #:3517 17 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. Mr. Marcus’ Use of the Promises Trademark in Commerce. A mark is used in United States commerce when it is used on an American website to further trademark infringement. The Name LLC v. Ortiz, 2010 U.S. Dist. LEXIS 121413, *13 (S.D.N.Y. Nov. 16, 2010). The Securities and Exchange Commission’s website lists the state of incorporation for Twitter, Inc. as Delaware. See https://www.sec.gov/cgi-bin/browse- edgar?company=twitter&owner=exclude&action=getcompany . Here, Mr. Marcus made commercial use of the Promises Trademark by publishing it on various Twitter websites in connection with the dissemination of false information regarding the Plaintiffs and information regarding the rehabilitation industry. SF ¶¶189, 195, 207, 214, 219, 224, 235, 240, 245, 251. These unauthorized uses occurred throughout 2014. Id. iii. The Promises Trademark Was Famous in 2014. Mr. Marcus first used the Promises Trademark in or about October 2014, approximately twelve (12) years after Westside’s first use and heavy promotion of the mark, and, accordingly, well after the Promises Trademark had achieved fame. Bauer Decl. ¶¶4-5, 8-12. iv. Mr. Marcus’ Use is Likely to Tarnish the Promises Trademark. The Lanham Act defines “dilution by tarnishment” as “association arising Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 24 of 32 Page ID #:3518 18 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the similarity between a mark [ ] and a famous mark that harms the reputation of the famous mark.” 15 U.S.C. § 1125(c)(2)(C). Such harm “generally arises when the plaintiff’s trademark is…portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner’s product.” Nordstrom, Inc., 2013 U.S. Dist. LEXIS at *34-*35 quoting Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 111 (2d Cir. 2010); see also PlayMakers, LLC v. ESPN, Inc., 297 F. Supp.2d 1277, 1285 (W.D. Wash. 2003) (“Tarnishment is a form of dilution in which the junior user places the famous mark in a bad light, generally one that involves sexual activity, obscenity, or illegal activity.”). As one court in this district explained: ‘Tarnishment’ occurs when a famous mark is linked to products of poor quality or is portrayed in an unwholesome manner. Gilson, supra, 10. An example of tarnishment is seen in Hasbro, Inc. v. Internet Entertainment Group, Ltd., 1996 U.S. Dist. LEXIS 11626, *2, 1996 WL 84853, at *1 (W.D. Wash. 1996), where an adult entertainment group diluted Hasbro's ‘Candy Land’ mark by using the name Candyland to identify a sexually explicit Internet site and by using ‘candyland.com’ as the domain name for the site. Panavision Int'l L.P. v. Toeppen, 945 F. Supp. 1296, 1304 (C.D. Cal. 1996). Here, Mr. Marcus has used marks identical to the Promises Trademark for the very purpose of portraying the mark in an unwholesome and unsavory manner, including in connection with obscenities and references to illegal activities. SF ¶¶189, 195, 207, 214, 219, 224, 235, 240, 245, 251. This use and association harms the reputation of the famous Promises Trademark: Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 25 of 32 Page ID #:3519 19 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A likelihood of dilution by tarnishment can be inferred based on the foregoing, and would follow the line of cases where courts have found tarnishment where use of a famous mark in a domain “leads viewers to an unwholesome website.” Nissan Motor Co., Ltd. v. Nissan Computer Corp., No. CV 99-12980, 2007 U.S. Dist. LEXIS 103810, *54 (C.D. Cal. Sept. 20, 2007) (citing cases). d. Mr. Marcus Impersonated Plaintiff Nanci Stockwell. Cal. Pen. Code § 528.5 provides for criminal and civil penalties against: Any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d). Cal. Pen. Code. §§ 528.5(a), (e). An “impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.” Id. § (b). “[O]pening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name” constitute “electronic means” under the statute. Id. § (c). There is a dearth of case law applying the statute, but at least one California court has advised “[A] person could violate section 528.5 by merely posting comments on a blog impersonating another person.” In re Rolando S., 197 Cal. App. 4th 936, 129 Cal. Rptr.3d 49, (Ct. of App. of Cal., 5th App. Dist. July 21, 2011). i. Mr. Marcus’ Impersonation of Ms. Stockwell Was Credible. Plaintiffs’ undisputed evidence and Mr. Marcus’ admissions establish that Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 26 of 32 Page ID #:3520 20 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Marcus impersonated Ms. Stockwell by (i) opening email accounts in Ms. Stockwell’s name; (ii) opening accounts or profiles on social networking sites in Ms. Stockwell’s name; and (iii) otherwise through the Internet or other electronic means. Mr. Marcus opened at least five (5) email accounts in Ms. Stockwell’s name. SF ¶264. Mr. Marcus opened thirteen (13) accounts or profiles in Ms. Stockwell’s name on the social networking site Twitter. SF ¶¶185-254. Twitter accounts featuring Ms. Stockwell’s name, photograph, job title, and place of employment render it such that an individual would reasonably believe that Mr. Marcus was in fact Ms. Stockwell. SF ¶¶255-56. Indeed, Mr. Marcus himself admitted to the credibility of such impersonations. SF ¶263. ii. Mr. Marcus Impersonated Ms. Stockwell to Harm, Intimidate, or Threaten. Examining the second element of false impersonation, one court explained: There is no requirement that “the perpetrator act with an unlawful purpose- merely that he or she acted with the purpose of harming, intimidating, threatening, or defrauding a person. At least the terms ‘harming’ and ‘intimidating’ do not necessarily have to be done for an unlawful purpose. In re Rolando S., 197 Cal. App. 4th 936, 129 Cal. Rptr.3d 49, (Ct. of App. of Cal., 5th App. Dist. July 21, 2011). Here, the motivation for Mr. Marcus’ actions in impersonating Ms. Stockwell is clear. As a terminated employee with an ax to grind, Mr. Marcus sought to harm, intimidate, and threaten those individuals responsible for his termination. SF ¶¶185-54. Mr. Marcus’ email communications contain explicit Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 27 of 32 Page ID #:3521 21 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 threats. SF ¶¶57-144; 7/6/17 Stockwell Decl. ¶¶5, 7. The content of Mr. Marcus’ Twitter postings likewise support a finding of impersonation for the purpose of harming, intimidating, or threatening Ms. Stockwell and Elements employees. SF ¶¶185-254. As the above-referenced facts demonstrate, Mr. Marcus is liable for false impersonation under Cal. Pen. Code § 528.5 and Plaintiffs are entitled to judgment as a matter of law. e. Mr. Marcus Harassed Plaintiff Nanci Stockwell. Cal. Civ. Code § 1708.7 provides in pertinent part that a person is liable for the tort of stalking when the following elements are established: (1) The defendant engaged in a pattern of conduct the intent of which was to…alarm…or harass the plaintiff; (2) As a result of that pattern of conduct, either of the following occurred: (A) The plaintiff reasonably feared for his or her safety…[or] (B) The plaintiff suffered substantial emotional distress, and the pattern of conduct would cause a reasonable person to suffer substantial emotional distress; [and] (3) One of the following: (A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with either (i) the intent to place the plaintiff in reasonable fear for his or her safety…or (ii) reckless disregard for the safety of the plaintiff... 3 [or] 3 In addition, the plaintiff must have, on at least one occasion, clearly and definitively demanded that the defendant cease and abate his [ ] pattern of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff's communication of the demand impractical or unsafe. Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 28 of 32 Page ID #:3522 22 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (B) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting any act described in subdivision (a). Cal. Civ. Code § 1708.7(a). i. Mr. Marcus engaged in a pattern of conduct Intending to Alarm or Harass Ms. Stockwell A “pattern of conduct” means “conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” Cal. Civ. Code § 1708.7(b)(1). “Harass” means “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.” Cal. Civ. Code § 1708.7(b)(5). Mr. Marcus’ harassment of Ms. Stockwell consisted of, among other things, opening email accounts in her name, and using those accounts to harass and threaten Ms. Stockwell, along with her superiors and colleagues. SF ¶¶57-144, 185-254, 267-83. It consisted of opening accounts on social networking websites in Ms. Stockwell’s name, and creating and disseminating abusive content for the public at large to view. SF ¶¶185-254. Mr. Marcus also targeted Ms. Stockwell with direct threats, telling her she was “totally fucked” and advising she “may want to resign” from her job. SF ¶¶134, 280. This behavior continued unabated over the Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 29 of 32 Page ID #:3523 23 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 course of several months, with Mr. Marcus repeatedly writing to Ms. Stockwell “This will never end for you” and stating “I will keep coming for you until you quit or are fired.” Such conduct had absolutely no legitimate purpose, and would cause any reasonable person to suffer substantial emotional distress, as Ms. Stockwell did. 7/6/17 Stockwell Decl. ¶¶5-7; SF ¶275. Ms. Stockwell clearly demanded that Mr. Marcus cease and abate his conduct by initiating this litigation against Mr. Marcus. Indeed, on account of months of impersonation and harassment by Mr. Marcus, a Consent Order for a Preliminary Injunction was entered on February 13, 2015 barring him from contacting, harassing, and impersonating Ms. Stockwell (among others). ii. Mr. Marcus’ Conduct Caused Ms. Stockwell to Reasonably Fear for Her Safety and Suffer Substantial Emotional Distress as any Reasonable Person Would Suffer. “‘Substantial emotional distress’…requires the evaluation of the totality of the circumstances to determine whether the defendant reasonably caused the plaintiff substantial fear, anxiety, or emotional torment.” Cal. Civ. Code § 1708.7(b)(7). Ms. Stockwell’s undisputed testimony is that she felt threatened as a result of Mr. Marcus’ unrelenting conduct, which resulted in her fearing for her safety, and which caused her to suffer substantial anxiety, emotional distress, and torment. 7/6/17 Stockwell Decl. ¶5-7. Mr. Marcus is in agreement that his conduct could be regarded as harassing. SF ¶272. Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 30 of 32 Page ID #:3524 24 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii. Mr. Marcus’ Conduct Threatened Ms. Stockwell and Violated the Preliminary Injunction. A “credible threat” means “a verbal or written threat, including that communicated by means of an electronic communication device, or a threat implied by a pattern of conduct…” Cal. Civ. Code § 1708.7(b)(2). Telephones, cellular telephones, and computers qualify as “electronic communication device[s].” Cal. Civ. Code § 1708.7(b)(3). Mr. Marcus used numerous electronic communication devices to direct written threats to Ms. Stockwell on multiple occasions as explained above. This conduct not only threatened Ms. Stockwell, but violated the preliminary injunction entered by this Court. As such, Mr. Marcus’ liability for civil harassment is established as a matter of law. Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 31 of 32 Page ID #:3525 25 MEMORANDUM OF POINTS AND AUTHORITIES 8263656v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the above reasons, the Court should grant partial summary judgment in favor of Plaintiffs on the issues of liability for Plaintiffs’ claims for (i) copyright infringement (Count I); (ii) trademark counterfeiting (Count II); (iii) trademark dilution by tarnishment (Count III); (iv) false impersonation (Count IV); and harassment (Count IX). Dated: July 7, 2017 Respectfully Submitted, /s/Adam Bialek Adam R. Bialek (Admitted Pro Hac Vice) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Ian A. Stewart Gregory K. Lee WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 Attorneys for Plaintiffs Case 2:14-cv-08760-JAK-RZ Document 185-1 Filed 07/07/17 Page 32 of 32 Page ID #:3526 1 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IAN A. STEWART, ESQ. (SBN: 250689) Ian.Stewart@wilsonelser.com GREGORY K. LEE, ESQ. (SBN 220354) Gregory.Lee@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 ADAM R. BIALEK (Admitted Pro Hac Vice) Adam.Bialek@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Attorneys for Plaintiffs, ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL UNITED STATES DISTRICT COURT THE CENTRAL DISTRICT OF CALIFORNIA ELEMENTS BEHAVIORAL HEALTH, INC., WESTSIDE SOBER LIVING CENTERS, INC. and NANCI E. STOCKWELL, Plaintiffs, v. MICHAEL MARCUS, and JOHN DOES 1-10, Defendants. Civil Action No.: CV14-08760-JAK-RZ PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Hearing Date: Under Submission Judge: Hon. John A. Kronstadt Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 1 of 73 Page ID #:3527 2 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW THE PARTIES PLAINTIFF ELEMENTS 1. Plaintiff, ELEMENTS BEHAVIORAL HEALTH, INC. (hereinafter “Elements”), is a corporation duly organized under the laws of the State of Delaware, with a principal place of business at 5000 Airport Plaza Drive, Long Beach, California, 90815. Declaration of Adam R. Bialek dated July 7, 2017, filed concurrently with this Motion (hereinafter “Bialek Decl.”), Ex. 1 (statement of information). 2. Elements develops programs that are designed to treat addictive behaviors. Plaintiff Elements’ focus is on long-term, sustainable recovery and overall improvement of life. Second Amended Complaint, Docket Entry No. 68 (hereinafter “SAC”) ¶16. The facts alleged in the SAC, other than allegations made on information and belief, are verified. Declaration of Edith Bauer dated July 6, 2017 (hereinafter “Bauer Decl.”) filed concurrently with this Motion. 3. Elements’ behavioral health care programs span across the United States including centers in California, Florida, Tennessee, Arizona, Mississippi, Utah, Pennsylvania and Texas. Bialek Decl., Ex. 2 (Declaration of Nanci E. Stockwell dated December 15, 2014) (hereinafter “12/15/14 Stockwell Decl.”), ¶5. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 2 of 73 Page ID #:3528 3 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Elements’ current centers include a variety of private settings throughout the country in diverse venues ranging from luxurious beachside retreats on both coasts, a ranch in Texas, and outpatient clinics throughout Texas and private homes in the mountains and high desert of the Southwest. Bialek Dec., Ex., 3. 5. Elements receives recommendations from their clients, the client’s family members and other treatment providers to uniquely design and develop programs based on the needs that are not being adequately addressed. SAC ¶20. PLAINTIFF WESTSIDE 6. Plaintiff, WESTSIDE SOBER LIVING CENTERS, INC. (hereinafter “Westside”), is a corporation duly organized under the laws of the State of California, with a principal place of business at 5000 E. Spring Street, Long Beach, California, 90815. Bialek Decl. Ex. 4 (statement of information). 7. Westside is a majority owned subsidiary of Elements and does business as Promises Treatment Centers (hereinafter “Promises”). SAC ¶3; 12/15/14 Stockwell Decl. ¶10. 8. Elements acquired Promises in February 2008. SAC ¶18. PLAINTIFF NANCI STOCKWELL 9. At the time of the actions alleged in the Complaint, Plaintiff, NANCI E. STOCKWELL (hereinafter “Ms. Stockwell”), was an individual residing within Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 3 of 73 Page ID #:3529 4 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the State of California and was the Regional Vice President of Elements Behavioral Health, Inc. 12/15/14 Stockwell Decl. ¶1; SAC ¶4. 10. Ms. Stockwell joined Elements in November 2012 as the Regional Vice President in California for Elements. 12/15/14 Stockwell Decl. ¶1. 11. Ms. Stockwell is a licensed clinical social worker with more than twenty (20) years of experience in social work, mental health, behavioral therapy, and rehabilitation. 12/15/14 Stockwell Decl. ¶2. 12. Ms. Stockwell specialized in program coordination and development. 12/15/14 Stockwell Decl. ¶3. DEFENDANT MICHAEL MARCUS 13. At the time the actions alleged in the Complaint were committed, Defendant, MICHAEL MARCUS (hereinafter “Marcus”), was an individual residing within the State of California. Bialek Decl., Ex. 5 (Transcript of Deposition of Defendant Michael Marcus conducted May 5, 2017) (hereinafter “Marcus Dep.”), 32:13-16; 33:7-22. 14. Mr. Marcus resided at 1818 Camden Avenue, Number 202, Los Angeles, CA 90025 from 2013-2015. Marcus Dep. 32:13-16; 33:7-22. 15. Mr. Marcus has obsessive compulsive disorder. Marcus Dep. 127-30 MR. MARCUS’ WORK AT PROMISES 16. Mr. Marcus is a former Rehabilitation Technician at Elements who worked at Promises’ West Los Angeles location. SAC ¶5. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 4 of 73 Page ID #:3530 5 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Mr. Marcus was employed at Promises from March 21, 2013 until he was terminated on April 2, 2014 for violation of company policy. 12/15/14 Stockwell Decl. ¶¶16-18; Marcus Dep. 160. 18. Marcus’ basic job functions were to monitor and track activities of clients and provide support to the clinical team. 12/15/14 Stockwell Decl. ¶17; Marcus Dep. 139-140. THE SOURCES & METHODS OF DISSEMINATION OF THE CONTENT AT ISSUE MR. MARCUS’ INTERNET AND TECHNOLOGY EXPERTISE 19. Mr. Marcus held himself out on his LinkedIn profile as having “advanced internet, computer, and mobile technology skills” as areas of specialty. Bialek Decl., Ex. 6 (Exhibit 2 to Marcus Dep.) (hereinafter “Marcus Dep. Ex. 2”); Marcus Dep. 99:18-101:9; 12/15/14 Stockwell Decl. Ex. 2. 20. Mr. Marcus also held himself out as having “specialties” in internet security and encryption. Marcus Dep. Ex. 2; Marcus Dep. 101:10-102:19; 12/15/14 Stockwell Decl. Ex. 2. 21. Mr. Marcus became aware that an individual could utilize Tor as a proxy to hide the IP address of the individual’s computer in or about the time the documentary “Deep Web” and the Time Magazine article “The Dark Net” issued. Marcus Dep. 68:19-71:23. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 5 of 73 Page ID #:3531 6 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. In its November 11, 2013 edition of its magazine, Time Magazine published a cover story titled “The Secret Web: Where Drugs, Porn and Murder Live Online”. Bialek Decl. Ex. 7. 23. In an article entitled, “Why the Deep Web Has Washington Worried,” the author, Jay Newton-Small wrote about “the massive and growing anonymous area of the Internet.” Bialek Decl. Ex. 8 24. The article referenced Silk Road, one of the most successful online drug bazaars and the blueprint it provided for criminals, and explains that Tor is “used by everyone from law enforcement to Syrian dissidents to protect valuable information.” Bialek Decl. Ex. 8. 25. On or about June 3, 2014, Mr. Marcus began his harassment of employees of the Plaintiffs by sending e-mail messages with fake e-mail accounts using an untraceable e-mail service provider. 12/15/14 Stockwell Decl. ¶19 26. Instructions for using a Tor to use the internet anonymously are readily available online. Bialek Decl. Ex. 9; Bialek Decl. Ex. 10. MR. MARCUS’ INTERNET ACCESS POINT 27. Mr. Marcus lived with Seth Dorfman from early January 2013 up to and including April 2015. Bialek Decl. Ex. 11 (Affidavit of Seth Dorfman dated April 7, 2015) (hereinafter “4/7/15 Dorfman Aff.”) ¶¶2-3; Marcus Dep. 33:18-22. 28. The 4/7/15 Dorfman Aff. has already been deemed authenticated and admissible. DE 91, December 2, 2015 Order Granting Joint Stipulation Re: Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 6 of 73 Page ID #:3532 7 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Authenticity and/or Admissibility of Documents; see also Exhibit 2 to Joint Stipulation, DE 89 at 7-14 (the 4/7/15 Dorfman Aff. deemed authenticated and admissible pursuant to 12/2/15 Order). 29. The address shared by Mr. Marcus and Mr. Dorfman was 1818 Camden Avenue, Apartment 202, Los Angeles, CA 90025. 4/7/15 Dorfman Aff. ¶¶2-3; Marcus Dep. 32:13-16; 33:7-22. 30. Mr. Marcus and Mr. Dorfman were the only two individuals residing in the apartment located at 1818 Camden Avenue, Apt. 202, Los Angeles, CA 90025 from January 2013 to April 2015. 4/7/15 Dorfman Aff. ¶3; Marcus Dep. 36:11-14. 31. Mr. Dorfman had no involvement in the establishment of nstockwell@yandex.com. 4/7/15 Dorfman Aff. ¶16. 32. Mr. Dorfman has never contacted any past or present employee of Elements, Promises, or any parent, subsidiary, or related business entities of the Plaintiffs for purposes of harassment, defamation, or business interference. 4/7/15 Dorfman Aff. ¶15. 33. Mr. Dorfman had no involvement in the establishment of the violative Twitter Accounts and the Email addresses identified in this litigation. 4/7/15 Dorfman Aff. ¶16. MR. MARCUS’ COMPUTER DEVICES Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 7 of 73 Page ID #:3533 8 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34. When living with Mr. Dorfman, Marcus had an HP Pavilion laptop he obtained in 2011. Marcus Dep. 52:12-18. 35. The HP Pavilion was the only computer Mr. Marcus had while living with Mr. Dorfman. Marcus Dep. 54:5-8. 36. From April 2014 through August 2015, the HP Pavilion, located in Mr. Marcus’ room, was his “primary” computer. Marcus Dep. 59:6-11. 37. Mr. Marcus “hardly ever” had friends over that would utilize his computer. Marcus Dep. 47:8-11. 38. Mr. Marcus was not employed from April 2015-August 2015, so he did not have access to computers at work, and therefore would utilize his computer or phone. Marcus Dep. 59:21-60:7. 39. Mr. Marcus disposed of the HP Pavilion computer in late fall of 2015. Marcus Dep. 54:5-19; 60:24-61:1. 40. Mr. Marcus had a Nexus 5 tablet. Marcus Dep. 52 41. When living with Mr. Dorfman, Mr. Marcus’ only devices were his cell phone, the laptop, and the tablet. Marcus Dep. 53:7-13 42. Currently has a Dell i300. Marcus Dep. 56 43. Since 2013, Mr. Marcus has only had an HP Pavilion laptop, another HP, a Chromebook, and the Dell i300. Marcus Dep. 57:3-12 MR. MARCUS’ INTERNET PROTOCOL ADDRESS Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 8 of 73 Page ID #:3534 9 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44. An Internet Protocol address (“IP address”) is a unique string of numbers separated by periods that identifies each computer using the Internet Protocol to communicate over a network. Bialek Decl. Ex. 12. 45. “Every computer or server connected to the Internet has a unique IP address.” United States v. Dorrester, 512 F.3d 500, 510 n.5 (9th Cir. 2008). 46. Mr. Marcus admits the IP address associated with the router located at his apartment at 1818 Camden Ave. is 75.82.174.138. Bialek Decl. Ex. 13, (Plaintiffs’ First Set of Requests for Admission to Defendant Michael Marcus) (hereinafter “RFA1”), at No. 4; Bialek Decl. Ex. 14 (Defendant Michael Marcus’ Responses to Plaintiffs’ First Set of Requests for Admission) (hereinafter “Def. Resp. to RFA1”), at Resp. to Request No. 4. 47. Mr. Marcus confirmed the accuracy of his signature on the Verification to his responses to Plaintiffs’ First Set of Requests for Admission. Marcus Dep. at 318-19. 48. By subpoena to Time Warner Cable, Plaintiffs confirmed that IP address 75.82.174.138 was assigned to Mr. Marcus’ residence. Bialek Decl. Ex. 15 (Time Warner Cable subscriber records sent by Sean Harris, Subpoena Analyst, dated February 20, 2015) (hereinafter “Time Warner Subpoena Response”). 49. The Time Warner Subpoena Response has already been deemed authentic and admissible. DE 91, December 2, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents; see also Exhibit 1 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 9 of 73 Page ID #:3535 10 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Joint Stipulation, DE 89 a 4-6 (Time Warner Subpoena Response deemed authentic and admissible pursuant to 12/2/15 Order). 50. The subscriber information for the IP address 75.82.174.138 is: (i) Subscriber Name: Seth Dorfman; (ii) Subscriber Address: 1818 Camden Ave., Apt. 202, Los Angeles, CA 90025-4471. Time Warner Subpoena Response. 51. The 75.82.174.138 IP address was activated April 26, 2013 and remained active as of the date of Time Warner’s subpoena response, February 20, 2015. Time Warner Subpoena Response. Secured Network 52. Mr. Marcus and Mr. Dorfman had a secure, password-protected Internet connection, wifi, and a router through Time Warner. 4/7/15 Dorfman Aff. ¶4; Marcus Dep. 45:10-14; 45:25-46:4. 53. Mr. Marcus is “protective” of his passwords, and does not recall ever giving the wifi password to a third party. Marcus Dep. 46:4-20; 48:4-14. The only individual sharing the 75.82.174.138 IP Address with Marcus did not engage in the conduct at issue. 54. Mr. Dorfman had no involvement in the establishment of the following eighteen (18) Twitter accounts: i. @nancistockwell ii. @nancystockwel iii. @nanceystockwell iv. @nanceistockwel v. @nanceestockwell Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 10 of 73 Page ID #:3536 11 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi. @nanciestockwel vii. @StockwellNancie viii. @StockwellNanci1 ix. @StockwellNanci x. @StockwellNancy xi. @nancestockwell xii. @nanncistockwell xiii. @nanciistockwell xiv. @TheresaCarlisl xv. @LaurelShires xvi. @RehabPolice xvii. @RehabWatch xviii. @RehabKNine 4/7/15 Dorfman Aff. ¶16. 55. Mr. Dorfman had no involvement in the establishment of the following thirty-one (31) e-mail addresses: i. elementshealth@hms.com ii. elementshealth@osha.com iii. nobody@isis.cpunk.us iv. laurel.shires@vfemail.net v. magnolia.ghassemi@mail.ru vi. nstockwell@yandex.com vii. 2f75fp7@svk.jp viii. 344e3a@svk.jp ix. nancy-stockwell@ya.ru x. nstockwell@yandex.ua xi. nstockwell@yandex.kz xii. 2jk9j7n@svk.jp xiii. sirius.black@sigaint.org xiv. neville.longbottom@linuxmail.org xv. agadore.spartacus@mail.ru xvi. dante.alighieri7@yandex.com xvii. nicholas.nicklebee@swissmail.com xviii. shlomo.levine@mail.com xix. jakob.marlow@yandex.com xx. christinemarlow85@yahoo.com xxi. deanna.martino@yandex.com Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 11 of 73 Page ID #:3537 12 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xxii. leni.reifenstahl@mail.md xxiii. miriam.antoinette@yahoo.com xxiv. veronica_salts@yahoo.com xxv. alan.turings@yahoo.com xxvi. austin-millbarge@yandex.com xxvii. asa.asa.akira@mail.ru xxviii. anna.greengables@qip.ru xxix. austin.millbarge@yandex.com xxx. yahoo.sirius@yahoo.com xxxi. Agatha.dumbledore@gmail.com. 4/7/15 Dorfman Aff. ¶16. 56. Mr. Dorfman had no involvement in the establishment of the following eight (8) phone numbers: i. 214-495-1583 ii. 916-352-3096 iii. 562-304-9297 iv. 978-291-8445 v. 310-709-6099 vi. 970-279-1186 vii. 604-674-7033 viii. 646-930-5214 4/7/15 Dorfman Aff. ¶16. MR. MARCUS’ EMAIL ACTIVITIES MR. MARCUS’ EFFORTS TO CONCEAL HIS EMAIL ACTIVITIES 57. On or about June 3, 2014, Mr. Marcus began his harassment of employees of the Plaintiffs by sending e-mail messages with fake e-mail accounts using an untraceable e-mail service provider. 12/15/14 Stockwell Decl. ¶19. 58. Mr. Marcus generated fake e-mail accounts using the names of employees of both Elements and Promises. 12/15/14 Stockwell Decl. ¶22. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 12 of 73 Page ID #:3538 13 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERNET ACTIVITY TRACEABLE TO THE 75.82.174.138 IP ADDRESS IS ATTRIBUTABLE TO MR. MARCUS 59. Colton Centala was the Senior Systems and Exchange Engineer for Elements. Bialek Decl. Ex. 16 (transcript of a proceeding conducted before the Honorable John A. Kronstadt on March 15, 2016 filed at DE 101) (hereinafter “3.15.16 Trans.”) at Page 58. 60. Mr. Centala managed all of the email systems for Elements. 3.15.16 Trans. at 58. 61. Mr. Centala was involved in the investigation into the receipt of offending emails by Elements and was the individual at Elements who captured the emails involved identified in the Complaint. 3.15.16 Trans. at 59. 62. When Mr. Centala received the emails, he tried to locate a searchable IP address to determine the origin of the email. 3.15.16 Trans. at 60. 63. Mr. Centala was eventually able to locate a searchable IP address for one of the emails alleged in the Complaint. 3.15.16 Trans. at 60. 64. Mr. Centala investigated an October 11, 2014 email that purported to be a spoofed email from Nanci Stockwell. 3.15.16 Trans. at 61; DE 68-1 at 27-28, 65. Mr. Centala confirmed that the email in fact came from an email server originating in Russia with a presence in Kazakhstan, i.e. Yandex.com. 3.15.16 Trans. at 61-62. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 13 of 73 Page ID #:3539 14 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66. The email purporting to come from Nanci Stockwell came from the email address nstockwell@yandex.com. 3.15.16 Trans. at 61-62; DE 68-1 at 27- 28. 67. Mr. Centala observed that the same email was sent in two different email blasts. 3.15.16 Trans. at 62-63. 68. An email with the subject “Announcements and Reminders” was attempted at 5:08 a.m. PDT on October 11, 2014 and was redirected by Elements to a monitored account as it came from a country that Elements set up to be blocked. DE 9-2 at 12, Admitted in Evidence, DE 97 at 3, Exh. 20. 69. Mr. Centala noted that the originating IP address was a Tor exit node from a blocked country. DE 9-2 at 12. 70. The second email, with the subject “HOLD-Investors” was sent at 5:43 a.m. PDT on October 11, 2014. DE 9-2 at 12, DE 68-1 at 30-31, Admitted in Evidence, DE 97 at 3, Exh. 19. 71. These emails contained the same text. DE 68-1, at 27-31. 72. The text of the emails purporting to be sent to Elements then-CEO David Sack from nstockwell@yandex.com indicated the following: David, we made another critical error on Friday with our most recent executive departure. It’s only a matter of time now; with all the lawsuits, especially from other treatment providers. You need to pay me out just as you did with the other employees. We’ve become the Enron of drug rehabilitation. DE 68-1 at 30. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 14 of 73 Page ID #:3540 15 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 73. The above email from nstockwell@yandex.com was not created or sent by the real Nanci Stockwell. 12/15/14 Stockwell Decl. ¶23. 74. This email attached an earlier email, from October 2, 2014. In this email, the fake Nanci Stockwell proclaimed: In light of recent events, this is a reminder to please report any and all abuse, discrimination, and medical malpractice to the appropriate governing administration listed in my previous email. You may also feel free to discuss any concerns with me directly without fear of “possible” retaliation. I maintain an open door policy since we all now have blood on our hands. DE 68-1 at 30. 75. This earlier email also referenced a quote from the infamous Nazi, Adolf Eichmann. DE 68-1 at 30. 76. This email also included an earlier email from September 4, 2014, where the fake Nanci Stockwell sent around an email that included the following: With hospitals and healthcare becoming more corporate, companies are cutting costs at the expense of the patient resulting in poor patient care and neglect. Elements is not entirely innocent of this type of malpractice and risks losing its value and accreditation if we are not more mindful. DE 69-1 at 30. 77. This email also included the following: As I reflect on why EBH allowed itself to receive substantial funding from Frazier Healthcare and turn treatment into a game of Russian Roulette, I am reminded of this passage from the Alcoholics Anonymous book and the best example as to why we fail. Quarterly profits included. “In our belief any scheme of combating alcoholism which proposes to shield the sick man from temptation is doomed to failure. If the alcoholic tries to Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 15 of 73 Page ID #:3541 16 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shield himself he may succeed for a time, but he usually winds up with a bigger explosion than ever. We have tried these methods. These attempts to do the impossible have always failed.” DE 68-1 at 30. 78. The second October 11, 2014 message was sent without masking the original U.S.-based IP address and therefore was permitted to transmit to its intended recipients at Elements. DE 9-2 at 12. 79. This message originated from an IP address in Southern California from the Time Warner Cable network with an IP address of 75.82.174.138. DE 9- 2 at 12; 3.15.16 Trans. at 63. 80. 75.82.174.138 is Mr. Marcus’ IP address. Time Warner Subpoena Response. 81. Mr. Dorfman did not create an “nstockwell” email address via Yandex. 4/7/15 Dorfman Aff. ¶16. 82. Mr. Centala used Internet Geo IP Location tools and discovered the physical location of the IP address to be in West Los Angeles. 3.15.16 Trans. at 63. 83. Mr. Centala obtained the IP address from the e-mail’s header information, which breaks out the servers the email originated from and transferred through in order to get to Elements. 3.15.16 Trans. at 64. 84. The header information indicated that the originating IP address was 75.82.174.138 and used the web portal @yandex.ru to send the email. 3.15.16 Trans. at 67-68. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 16 of 73 Page ID #:3542 17 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 85. In addition to the October 11, 2014 emails sent by NStockwell@yandex.com (the email linked to IP address 75.82.174.138), additional emails had been sent by that same email address as addressed above and after as discussed below. DE 68-1 at 19, 21-22, 24-25, 27-28, 30-31, 41-42, 44-45, 47-48, 50-51, 53-55, and 57-58. MR. MARCUS’ ADMITTED EMAIL ADDRESSES 86. Mr. Marcus’ email addresses include mpmarcus3@aol.com, Marcusmpm@gmail.com, disneyexplorer3@yahoo.com, Michaelmpm3@yahoo.com, and superman3@aol.com. Marcus Dep. 111:9-113:1; 172:12-24. 87. Mr. Marcus admitted to sending emails to Plaintiffs from the email address “nobody@isis.cpunk.us.” Def. Resp. to RFA1, ¶21 88. Isis.cpunk.us was an anonymous remailer that allows one to send untraceable email to anyone. Bialek Dec., Exh. 50 89. Mr. Marcus admitted to using Yandex’s email services. Def. Resp. to RFA1 ¶59. 90. Mr. Marcus admitted to sending emails to Plaintiffs from the email address purporting to be “nstockwell@yandex.kz.” Def. Resp. to RFA1, ¶32. MR. MARCUS’ OTHER EMAIL ACCOUNTS Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 17 of 73 Page ID #:3543 18 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 91. There are numerous accounts that have been linked to Mr. Marcus through his IP address that have been confirmed by subpoenaed records that have been deemed authentic and admissible. DE 54, 56; DE 89, 91; DE 95, 96. 92. These email accounts were used by Mr. Marcus to send various emails posing as Plaintiff Nanci Stockwell, either directly to Ms. Stockwell to harass her, or to others regarding Ms. Stockwell harass and disparage her. As discussed herein. 93. The additional email accounts that Mr. Marcus used that were either admitted to by him, or were confirmed through subpoenaed records as discussed below include the following: A. Agatha.dumbledore@gmail.com B. Neville.Longbottom@linuxmail.org C. shlomo.levine@mail.com D. Nicholas.nicklebee@swissmail.com E. 344e3a@svk.jp F. 2f75fp7@svk.jp G. 366874@svk.jp H. 2jk9j7n@svk.jp I. bi67e@svk.jp J. 8fe6f@svk.jp K. m7b6hi@svk.jp L. d548h@svk.jp M. leni.reifenstahl@mail.md Agatha.Dumbledore@gmail.com: 94. Marcus created the email account “Agatha.dumbledore@gmail.com” using email service provider Google. DE 89 at 85. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 18 of 73 Page ID #:3544 19 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 95. The IP address from which this email account was created was confirmed by Google’s records to be 75.82.174.138. Joint Stipulation Ex. 6, DE 89 at 85 (Document production from Google, Inc. of subscriber information for the Agatha.dumbledore@gmail.com account indicating creation from IP address 75.82.174.138). 96. Google, Inc.’s records have already been deemed authentic and admissible. December 2, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 91. 97. The Agatha Dumbledore Account was registered in the name of Albus Dumbledore. Joint Stipulation Ex. 6, DE 89 at 85 98. The email given for the account creation was nstockwell@yandex.com. Joint Stipulation Ex. 6, DE 89 at 85 99. The account was created on March 2, 2015. Joint Stipulation Ex. 6, DE 89 at 85 100. The account was created with an SMS phone number of (805)368- 4967. Joint Stipulation Ex. 6, DE 89 at 85. 101. The Agatha Dumbledore account was accessed from a computer with an IP address of 75.82.174.138 several times on March 2, 2015 and March 3, 2015. Joint Stipulation Ex. 6, DE 89 at 85. 102. On March 3, 2015, the account was also accessed from a computer with an IP address of 128.199.167.194. Joint Stipulation Ex. 6, DE 89 at 85. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 19 of 73 Page ID #:3545 20 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103. The IP address of 128.199.167.194 was registered to Digital Ocean. Bialek Dec., Exh. 51. Neville.Longbottom@linuxmail.org, shlomo.levine@mail.com and Nicholas.nicklebee@swissmail.com: 104. Marcus created the following email accounts using email service provider 1 & 1 Mail & Media, Inc.: “Neville.longbottom@linuxmail.org”; “shlomo.levine@mail.com”; “Nicholas.nicklebee@swissmail.com”. Joint Stipulation Ex. 7, DE 89 at 86-90 (Document production from 1 & 1 Mail & Media, Inc., dated May 6, 2015, of subscriber information for <>; <>; and <> indicating creation from IP address 75.82.174.138). 105. The IP address from which these email accounts were created was confirmed by 1&1 Mail & Media’s records to be 75.82.174.138. Joint Stipulation Ex. 7, DE 89 at 86-90. 106. The email address was registered in the name of “Neville Longbottom.” Joint Stipulation Ex. 7, DE 89 at 86-90. 107. The account was deemed fake by 1&1 Mail & Media. Joint Stipulation Ex. 7, DE 89 at 86-90 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 20 of 73 Page ID #:3546 21 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 108. 1 & 1 Mail & Media, Inc.’s records have already been deemed authentic and admissible. December 2, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 91. Aquapal Emails including 344e3a@svk.jp, 2f75fp7@svk.jp, 366874@svk.jp, 2jk9j7n@svk.jp, bi67e@svk.jp, 8fe6f@svk.jp, m7b6hi@svk.jp d548h@svk.jp: 109. Mr. Marcus created email accounts using a Japanese email service provider Aquapal (the “Aquapal Email Accounts”). April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 at 2 (Aquapal records covered by Joint Stipulation). 110. Specifically, Aquapal’s records indicate that the IP address from which the Aquapal Email Accounts were created is 75.82.174.138. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 at 2. 111. These accounts included: 344e3a@svk.jp, 2f75fp7@svk.jp, 366874@svk.jp, 2jk9j7n@svk.jp, bi67e@svk.jp, 8fe6f@svk.jp, m7b6hi@svk.jp, d548h@svk.jp. DE 56; DE 54-1 at 2. 112. Communications from Aquapal, and Aquapal’s records, have already been deemed authentic and admissible. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1. Leni.reifenstahl@mail.md: Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 21 of 73 Page ID #:3547 22 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 113. Mr. Marcus created the following email account using Moldova email service provider Mail.md: “leni.reifenstahl@mail.md”. 114. Specifically, Mail.md’s records indicate that the IP address from which these email accounts were created is 75.82.174.138. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 at 2 (Mail.md communications covered by Joint Stipulation); M. for Contempt Ex. C-2 (email), Ex. E-2 (Mail.md records). THE RECIPIENTS AND CONTENT OF MR. MARCUS’ EMAILS Emails to Ms. Stockwell 115. There are numerous other email addresses that Mr. Marcus used to perpetrate his activities as alleged in the litigation. The emails sent from these addresses can be linked together by virtue of their content or other email addresses associated with the emails. They will be addressed below. 116. On June 24, 2014, Mr. Marcus sent an email using a spoofed email name, John Kennerson, with this nobody@isis.cpunk.us email address (an email address Mr. Marcus admitted using). In this email, Mr. Marcus threatens Magnolia Ghassemi’s license. Mr. Marcus closed the email signing with the name “Snowden.” DE 68-1 at 6. 117. In November 2014, Marcus sent personalized e-mail messages to Plaintiff Nanci Stockwell with escalated threats about her job, privacy and safety. 12/15/14 Stockwell Decl. ¶24. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 22 of 73 Page ID #:3548 23 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118. Stockwell’s name was incorporated into several of the fake email accounts Marcus utiltized to send email messages to Plaintiffs’ employees, including nstockwell@yandex.com and nancy-stockwell@ya-ru. 12/15/14 Stockwell Decl. ¶23 119. There were at least twenty-four (24) e-mail messages sent by Marcus to the Plaintiffs as of December 2014. 12/15/14 Stockwell Decl. ¶20. 120. Marcus sent e-mail messages using a fake Elements e-mail account to employees of Elements signing it as “Edward Snowden.” 12/15/14 Stockwell Decl. ¶21 121. These email messages contained threatening statements and false accusations. 12/15/14 Stockwell Decl. ¶¶19, 21. Emails to Elements employees 122. On or about June 3, 2014, Marcus began his harassment of employees of the Plaintiffs by sending e-mail messages with fake e-mail accounts using an untraceable e-mail service provider. 12/15/14 Stockwell Decl. ¶19, DE 68-1 at 2. 123. In this June 3, 2014 email, Mr. Marcus used a spoofed name, Elements Behavioral Health, for the email address, ElementsHealth@hms.com, to send an email to Plaintiffs’ employee, Theresa Carlisle. In that email, Mr. Marcus threatened Ms. Carlisle writing, “Poetic Justice is just so beautiful. This is just the start.” DE 68-1 at 2. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 23 of 73 Page ID #:3549 24 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 124. That same day, Mr. Marcus used a spoofed name, “Elements Behavioral Health” with an email address elementshealth@osha.com to send a threatening email to his former supervisor, Jeremy Stalbird, writing, “And the dominoes continue to fall. You’ll be next if you’re not careful.” He closes the email with “More fun to come” and signs the email “Edward Snowden.” DE 68-1 at 4. 125. On August 23, 2014, Mr. Marcus used the name of Plaintiffs’ employee, Magnolia Ghassemi, to create an email address at magnolia.ghassemi@mail.ru. DE 68-1 at 12. 126. In the August 23rd email sent to a fellow employee at the Plaintiff, Jeremy Stalbird, Mr. Marcus makes derogatory comments and refers to “seeing some photos of [Stalbird] frolicking with Texan cows.” Mr. Marcus further refers to “negative reviews of Promises,” “talk of upper management covering up severe client negligence,” and mentions “Frazier Healthcare,” indicating that the people at Frazier Healthcare “may want to know about these continued failures.” Mr. Marcus then referred to himself and his intent when he wrote, “You also made a gross error with one of your former staff members. Do you really think he would have walked away so easily if he hadn’t planned it all out in advance.” DE 68-1 at 12. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 24 of 73 Page ID #:3550 25 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 127. In that email, Mr. Marcus also refers to the Plaintiffs’ computer security when he wrote, “You may want to get a better handle of your corporate firewall too. Much too easy to access your accounts.” Id. 128. On August 28, 2014, Mr. Marcus used Ms. Ghassemi’s name on an email account, Magnolia.ghassemi@mail.ru. He sent the email to unknown recipients including Plaintiffs. DE 68-1 at 15. 129. In his email, Mr. Marcus refers to Ms. Ghassemi as “a liar and a cheat.” DE 68-1 at 15. 130. Approximately 20 minutes later, he sent another email directed to Plaintiffs’ employee and Mr. Marcus’ former supervisor, Jeremy Stalbird, as if Ms. Ghassemi was scolding him for his conduct. DE 68-1 at 17. 131. On September 3, 2014, Mr. Marcus impersonated Ms. Stockwell by using her name and the email address, nstockwell@yandex.com. He sent out an email to unknown recipients including the Plaintiffs and their employees and portrayed it as if Ms. Stockwell was conceding that Elements had committed malpractice and risked losing its accreditation. He signed the email, “Best regards, Nanci Stockwell” and included Elements Behavioral Health to make it clear on whose behalf the email was sent. DE 68-1 at 19. 132. On October 2, 2014, Mr. Marcus again used that same nstockwell@yandex.com to send an email from “Nanci Stockwell” to unknown recipients including the Plaintiffs and their employees. In this email, Mr. Marcus, Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 25 of 73 Page ID #:3551 26 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 posing as Ms. Stockwell proclaims “We all have blood on our hands” and he refers to infamous Nazi leader Adolf Eichmann. He also re-forwarded the September 4 email. DE 68-1at 21. 133. Later that day, he sent the same email to unknown recipients including the Plaintiffs and their employees. He also signed this as “Nanci Stockwell, Elements Behavioral Health.” DE 68-1 at 24. 134. After the October emails referenced above, Mr. Marcus turned to threatening Ms. Stockwell by using the Aquapal emails that have been confirmed as Mr. Marcus’. On November 21, 2014, Mr. Marcus forwarded an email to Ms. Stockwell with a subject line “Twitter Account” in which he wrote, “Wait until you see the next round of documentation to get released. You may want to resign before it becomes public. ES.” DE 68-1 at 33; DE 56; DE 54-1. 135. Further threatening emails from the Aquapal accounts are discussed below. 136. On November 28, 2014, Mr. Marcus again used the nstockwell@yandex.com account, under the name of Nanci Stockwell, to contact Ms. Stockwell and several of Plaintiffs’ employees with the subject line “ELEMENTS ON THE AUCTION BLOCK.” In this email, he encourages the employees to consider terminating their employment with Elements in exchange for a “hefty severance package” or risk getting nothing if they stay. DE 68-1 at 41. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 26 of 73 Page ID #:3552 27 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 137. Thirteen minutes later, Mr. Marcus forwarded that email to Ms. Stockwell and others again. DE 68-1 at 44. 138. Mr. Marcus then forwarded the same email from nstockwell@yandex.com to David Sack, the then-CEO of Elements with a “High” Importance tab. DE 68-1 at 47. 139. Not satisfied that he had saturated the landscape with this email, Mr. Marcus again forwarded the email via nstockwell@yandex.com to Ms. Stockwell and others twenty eight minutes later. DE 68-1 at 50. 140. Thirteen minutes later, on November 29, 2014, under the name of Nanci Stockwell and via the nstockwell@yandex.com email address, Mr. Marcus wrote to Ms. Stockwell and others “Pink slips for everyone!” DE 68-1 at 53. 141. Eight minutes later, he sent the original email to undisclosed recipients. DE 68-1 at 54. 142. On November 30, 2014, Mr. Marcus used the name “Nancy Stockwell” with the email address nancy-stockwell@ya.ru to write to Nanci Stockwell and other employees of the plaintiffs with “Elements News via Twitter” and again re-forwarded the “Pink Slips” email. DE 68-1 at 60. 143. Mr. Marcus then used more anonymous email servers to send emails to Ms. Stockwell, her fellow employees, the Company’s shareholders and news outlets amongst unknown other recipients. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 27 of 73 Page ID #:3553 28 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 144. These accounts can be connected to the following other email accounts: A. dante.alighieri7@yandex.com: The Plaintiffs received eight e-mails from this account on February 20, 2015. The content in the e-mails is similar to other e-mails received by the Plaintiffs.  The emails from this account included the following addresses confirmed to be related to Mr. Marcus: shlomo.levine@mail.com; Neville.longbottom@linuxmail.org; and Nicholas.nicklebee@swissmail.com. DE 79-5 at 3.  In addition, this email also included the following suspect email addresses: agadore.spartacus@mail.ru; Sirius.black@sigaint.org. DE 79-5 at 3.  The connection between these email addresses make it likely that Mr. Marcus is also responsible for actions taken under the email accounts of dante.aligheri7@yandex.com, agadore.spartacus@mail.ru, and Sirius.black@sigaint.org. B. agadore.spartacus@mail.ru: The Plaintiffs received one e-mail from this account on March 2, 2015. DE 79-5 at 57-58. The email includes a spoofed email sender’s name of Rubeus Hagrid and directs this email to dante.alighieri7@yandex.com and to the Plaintiffs. The content in the e-mail is similar to an email that Mr. Marcus sent through his confirmed email address “Agatha.dumbledore@gmail.com” with a subject line “Promises Celebrity Alumni.” Thus, insofar as it is unlikely that the same exact email would be created by someone else, the agadore.spartacus@mail.ru address is likely Mr. Marcus.  In this email, Mr. Marcus sets forth a list of celebrities, including their dates of birth and what they were known for. He then concludes with the sign-off of Leni Reifenstahl, Produzent - Triumph des Willens. Id.  Triumph des Willens, or Triumph of the Will, was a 1935 documentary commissioned by the Nazi government about Adolf Hitler and the Third Reich. IMDB of Triumph of the Will, Bialek Dec., Exh. 52. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 28 of 73 Page ID #:3554 29 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Leni Riefenstahl was credited as the writer, director and producer of this documentary. IMDB biography of Leni Riefenstahl, Bialek Dec., Exh. 53.  Mr. Marcus has been credited with producing a documentary about the Holocaust. See Marcus Linked In.  On March 28, 2015, using a spoofed name, “Anastasia Steele”, Mr. Marcus used agadore.spratacus@mail.ru to email anna.greengables@qip.ru, and other unknown recipients including the Plaintiffs. The subject of the email was “Frazier Healthcare, Elements Investor + You.” The content of the 9-page e-mail was a court filing in a case in Texas where Frazier Healthcare was a defendant. The e-mail was signed off with the name “Irwin Fletcher”. DE 79-6 at 31-39.  The connections that agadore.spartacus@mail.ru has to other accounts confirmed to be Mr. Marcus’ makes it likely that this account belongs to Mr. Marcus and he is responsible for the actions taken under this account. C. magnolia.ghassemi@ru.com: On March 8, 2015, an email was sent with an email name of Magnolia Ghassemi (the name of an employee of the Plaintiffs). This email was addressed to Plaintiff Nanci Stockwell and had a subject line “Coroner Report”, threatening that “The coroner report on two past female patients are ready for public release.” DE 79-5 at 59.  This same email address was used with a spoofed email name, Deanna Martino, to forward an email to Elements employee, Theresa Carlisle. DE 79-5 at 60.  The email to Ms. Carlisle contained attacks on Ms. Carlisle calling her “a liar and a cheat…and too damaged to do or even know what is right… Your hands are blood red. You should be ashamed of yourself.” DE 79-5 at 60.  On March 11, 2015, Mr. Marcus used the magnolia.ghassemi@mail.ru email, with the spoofed Deanna Martino name to re-forward to unknown recipients, including the Plaintiffs, previous emails sent to Plaintiff Nanci Stockwell from spoofed email addresses using the nstockwell@yandex.com email address. Id at 69-70. Inciting the plaintiffs, Mr. Marcus wrote in Spanish, “Demasiado facil para entrar en su red,” which translates to “too easy to break into your Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 29 of 73 Page ID #:3555 30 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 network.” Google Translate. This email also copied the Sirius.black@sigaint.org email referenced in the dante.aligheri7@yandex.com email account discussed above.  Mr. Marcus would be the only one who could forward the conglomeration of emails he wrote under the nstockwell@yandex.com account, and thus, this account and the actions taken under it are likely attributable to Mr. Marcus. D. deanna.martino@yandex.com: Mr. Marcus used Ms. Martino’s name to create a Yandex account, Deanna.martino@yandex.com, and forwarded the email threatening Nanci Stockwell from Magnolia.ghassemi@mail.ru referenced above. DE 79-5 at 61-62.  Mr. Marcus then used the Deanna.Martino@yandex.com email account to forward, on March 9, 2015, what purports to be information from the Deanna Martino coroner report that Mr. Marcus had threatened Ms. Stockwell he would disclose. This email was sent to unknown recipients, including the Plaintiffs’ employees. DE 79-5 at 63.  In light of the connection to the other emails, this account and the actions taken under it are likely attributable to Mr. Marcus. E. deanna-martino@yandex.com: Mr. Marcus used the same fake email name, Deanna Martino, to create an email address Deanna-martino@yandex.com. On March 11, 2015, he used this email to re-forward to unknown recipients, including the Plaintiffs, previous emails sent to Plaintiff Nanci Stockwell from spoofed email addresses using the nstockwell@yandex.com email address. DE 79-5 at 67-68. Inciting the plaintiff’s, Mr. Marcus wrote in Spanish, “Demasiado facil para entrar en su red,” which translates to “too easy to break into your network.” Google Translate. This is the same text that was used by the Magnolia.ghassemi@mail.ru email that same day as referenced above.  Insofar as Mr. Marcus is related to the other Deanna Martino email and to the Magnolia Ghassemi email, it is likely that Mr. Marcus is responsible for this account and the actions taken under it. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 30 of 73 Page ID #:3556 31 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. austin.millbarge@yandex.com: On March 16, 2015, using a spoofed name, “Peter Lorre”, Mr. Marcus used an email account, Austin.Millbarge@yandex.com, to send an email to Anna.greengables@qip.ru and others, including the Plaintiffs. The email contained SEC Company information. Id. at 73-79.  This same email had been sent 38 minutes before and had also copied agadore.spartacus@mail.ru, an email address referenced above. DE 79-5 at 80-87.  On March 20, 2015, Mr. Marcus used the Austin.millbarge@yandex.com email to email Agadore.Spartacus@mail.ru and other unknown recipients including the Plaintiffs, in which Mr. Marcus boasts, recipients including the Plaintiffs, in which Mr. Marcus boasts “Like the mighty phoenix, once again I rise from the flames set to destroy me & take flight. I am Stronger Glorious Powerful Victorious. And I will have my vengeance in this life or the next.” He signed off with the name, Irwin Fletcher. DE 79-5 at 90.  On March 23, 2015, Mr. Marcus used the Austin.millbarge@yandex.com email with a spoofed name “The Newsroom” to email agadore.spartacus@mail.ru, anna.greengables@qip.ru and unknown recipients including the Plaintiffs. The content of this 21-page email included a court pleading in a case filed in New Mexico against the Plaintiff. He captioned the email, “Patients v. Elements - Days in Treatment Irrelevant cc: WSJ Newsroom”. Further he signed the end of the email with the name “Irwin Fletcher”. 79-5 at 113-116 and 79-6 at 2-18.  The connections to agadore.spartacus@mail.ru discussed above and the connections to anna.greengables@qip.ru as mentioned below, make it likely that Mr. Marcus is responsible for this email account and the actions taken under it. G. anna.greengables@qip.ru: On March 20, 2015, Mr. Marcus used a spoofed email name of Austin Millbarge (the same as the name used in the yandex.com email referenced above) to accompany an email sent from anna.greengables@qip.ru. Id. at 88. This email was sent to Austin.millbarge@yandex.com and unknown recipients including the Plaintiffs, in which Mr. Marcus boasts “Like the mighty phoenix, once again I rise Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 31 of 73 Page ID #:3557 32 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the flames set to destroy me & take flight. I am Stronger Glorious Powerful Victorious. And I will have my vengeance in this life or the next.” He signed off with the name, Irwin Fletcher.  On March 24, 2015, using a spoofed name, “Emmet Fitzhume”, Mr. Marcus used the anna.greengables@qip.ru to email Alan Frazier, the Chairman of Frazier Healthcare, a major investor in Elements Behavioral Health. Mr. Marcus copied others, including Nanci Stockwell and employees of the Plaintiffs. The email, with a subject line of “Elements Settles for mid-high Six Figures”, included a court filing from a case in which Elements was a defendant.  On March 28, 2015, using a spoofed name, “Biff Tanner”, Mr. Marcus used the anna.greengables@qip.ru to email Plaintiff Nanci Stockwell with copies to Alan Frazier of Frazier Healthcare, David Sack, the then CEO of Elements, Austin.millbarge@yandex.com and yahoo.sirius@yahoo.com. The subject of the email was “Frazier Healthcare, Elements Investor + You.” The content of the 9-page email was a court filing in a case in Texas where Frazier Healthcare was a defendant. DE 79-6 at 22-30.  Insofar as this account is linked to Austin.millbarge@yandex.com, it is likely that this account, and the yahoo.sirius@yahoo.com account is controlled by Mr. Marcus and he is responsible for the actions taken under it. H. austin-millbarge@yandex.com: On March 23, 2015, using a spoofed name, “Alan Turings”, Mr. Marcus used an email account similar to the previously mentioned Austin.millbarge@yandex.com, i.e. Austin- Millbarge@Yandex.com. He used this account to email the Austin.millbarge@yandex.com and other unknown recipients including the Plaintiffs. The content of this 21-page email included a court pleading in a case filed in New Mexico against the Plaintiff. He captioned the email, Patients v. Elements - Days in Treatment Irrelevant. Further he signed the end of the email with the name “Irwin Fletcher”. DE 79-5 at 92-112.  On March 31, 2015, Mr. Marcus used an Austin- Millbarge@Yandex.com to email Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 32 of 73 Page ID #:3558 33 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Austin.Millbarge@yandexcom with a copy to Agadore.Spartacus@mail.ru, asa.asa.akira@mail.ru, Elements then-CEO, David Sack, and other unknown recipients, including the Plaintiffs. With a subject line of “Possible IPO for Elements Behavioral Health,” Mr. Marcus made derogatory comments about Elements stating: “If Elements cannot find a buyer because of its failing reputation, the company will go public and have an initial public offering or IPO for the better educated”. He signed off as “Asa Asa.” DE 79-6 at 42-43.  Insofar as this account is connected to Agadore.spartacus@mail.ru, and contains the exact fake name used in the Austin.millbarge@yandex.com email, it is likely that this account is controlled by Mr. Marcus and he is responsible for the actions taken under it. I. asa.asa.akira@mail.ru: On March 31, 2015, using a spoofed email name of Edward D. Wood, Mr. Marcus used the email address asa.asa.akira@mail.ru to send an email to Alan Frazier of Frazier Healthcare (a major investor in Elements) and other unknown recipients, including the Plaintiffs. With a subject line of “Possible IPO for Elements Behavioral Health,” Mr. Marcus made derogatory comments about Elements stating: “If Elements cannot find a buyer because of its failing reputation, the company will go public and have an initial public offering or IPO for the better educated”. DE 79-6at 40-41. This is the same email that was sent by Austin-millbarge@yandex.com discussed above, and thus, it is more than likely that Mr. Marcus is responsible for this account as well as the actions taken under it. J. miriam.antoinette@yahoo.com: On April 5, 2015, using a fake name, “Miriam Antoinette”, Mr. Marcus used an email account, Miriam.antoinette@yahoo.com to email Plaintiff Nanci Stockwell and numerous recipients, including employees of the Plaintiffs. The content of this 21-page email included a court pleading in a case filed in New Mexico against the Plaintiff. Mr. Marcus captioned the email, PATIENTS v. ELEMENTS -TREATMENT IRRELEVANT. DE 79-6 at 44- 64.  Records from Yahoo indicate that the IP address related to this account came from an anonymizing email service, Digital Ocean. Ex. 89, 91. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 33 of 73 Page ID #:3559 34 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Four minutes after sending this email, Mr. Marcus used a spoofed email named “Chili Palmer” with the Miriam.Antoinette@yahoo.com email address. Mr. Marcus used this account to email numerous individuals, including employees of the Plaintiffs, Alan Frazier of Frazier Healthcare, Steve Bailey and Michael Gallatin of Frazier Healthcare, and several individuals at the Wall Street Journal. The subject of this email was “ELEMENTS SETTLES SUIT FOR HIGH SIX FIGURES,” and the content included a Court filing in a New Jersey lawsuit where Elements was a defendant.DE 79-6 at 86-87.  Three minutes after sending the second email, Mr. Marcus used the same spoofed name, “Chili Palmer” and the same Miriam.antoinette@yahoo.com email to send the same message to numerous individuals including Plaintiff Nanci Stockwell and other employees of the Plaintiffs. DE 79-6 at 88-89.  Three minutes after sending the third e-mail, Mr. Marcus used a different spoofed name, “Augustus Gloop” with the same Miriam.antoinette@yahoo.com email to send an email to numerous individuals including Plaintiff Nanci Stockwell and employees of the Plaintiffs with the subject “ELEMENTS TO POSSIBLY GO PUBLIC.” This was the same message that Mr. Marcus sent under the email addresses of Austin-Millbarge@Yandex.com and asa.asa.akira@mail.ru on March 31, 2015. DE 79-6 at 90-92.  Three minutes after sending the fourth email, Mr. Marcus again used the Augustus Gloop name and Miriam.antoinette@yahoo.com email to another email with the subject “ELEMENTS TO POSSIBLY GO PUBLIC” to numerous individuals at Plaintiff Elements, to Alan Frazier, Steve Bailey and Michael Gallatin at Frazier Healthcare, to employees at the Wall Street Journal and to Alan.Turings@yahoo.com (note that Mr. Marcus had previously used the spoofed name of Alan Turings for his Austin-Millbarge@Yandex.com email address discussed above). Notably, this email also was sent to Steven Spitz, Elements’ General Counsel at the Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 34 of 73 Page ID #:3560 35 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time who Mr. Marcus had met in Court just a few weeks before.  As discussed below, Mr. Marcus did not stop with his harassment that day as he started sending other emails thirty minutes later from a Veronica Salts address.  Based on the numerous connections that this email address has to other actions taken by Mr. Marcus, and the peculiar inclusion of Mr. Spitz in the recipient box, it is likely that the Miriam.antoinette@yahoo.com email and the actions taken under it were the responsibility of Mr. Marcus. K. veronica_salts@yahoo.com: On April 5, 2005, the Plaintiffs received four e-mails from the Veronica_Salts@yahoo.com account. The first email, containing the same context that was sent under anna.greengables@qip.ru and Miriam.antoinette@yahoo.com emails with the subject “ELEMENTS SETTLES SUIT FOR HIGH SIX FIGURES” was sent to Plaintiff Nanci Stockwell and numerous individuals including Plaintiffs’ employees. DE 79-6 at 94-95.  Two minutes later, Mr. Marcus used this account to send the same email to numerous individuals, including employees of the Plaintiffs, Mr. Spitz, the gentlemen from Frazier Healthcare and Wall Street Journal employees.  Two minutes later, Mr. Marcus used this account to send the same “PATIENTS v. ELEMENTS - TREATMENT IRRELEVANT” email that was sent by the Austin.millbarge@yandex.com and Miriam.antoinette@yahoo.com email accounts as discussed above. This email was sent to numerous individuals including employees of the Plaintiffs, the gentlemen from Frazier Healthcare, and the employees from the Wall Street Journal. DE 79-6 at 98-14 and DE 79-7 at 2-15.  Three minutes later, Mr. Marcus again forwarded that same 21-page email under the subject “PATIENTS v. ELEMENTS - TREATMENT IRRELEVANT” from the Veronica_Salts@yahoo.com email to numerous individuals including Plaintiff Nanci Stockwell, and numerous employees of the Plaintiffs.DE 79-7 at 16-36. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 35 of 73 Page ID #:3561 36 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Augustus Gloop and Veruca Salt were characters in Willy Wonka and the Chocolate Factory and are clearly manufactured names. IMDB for Willy Wonka & the Chocolate Factory, Bialek Dec., Exh. 54.  In light of the numerous connections to the other email accounts to which Mr. Marcus has been connected, it is likely that he is responsible for the Veronica_Salts@yahoo.com email account and the actions taken thereunder. L. leni.riefenstahl@mail.md: The Plaintiffs received two e-mails from this account on April 6, 2015. First, an email was sent to Plaintiff Nanci Stockwell and to Elements then-CEO, David Sack. The Subject of the email was “Millenium Labs” and included a Notice of Appearance in a lawsuit that did not include the Plaintiffs. There was a foreign language comment, and the email was clearly sent for harassment purposes only. DE 79-7 at 37. Further, this e-mail address was almost identical to the leni.reifenstahl@mail.md, which was already confirmed to belong to Marcus.  The second email sent three minutes later included the same text and was sent to several of the Plaintiff’s employees. DE 79-7 at 38.  Insofar as this email was closely linked to other Marcus confirmed emails or likely emails, it is likely that this email address and actions taken under it were the responsibility of Mr. Marcus. M. herbie.hancock@ausi.com: The Plaintiffs received two e- mails from this account. The first was an email sent on April 7, 2015 from a spoofed email with the name “Thronton Mellon” and sent to Alan Frazier of Frazier Healthcare. It was copied to Plaintiff Nanci Stockwell and to other employees of the Plaintiffs. Carrying a subject line “ALLIED WORLD ASSURANCE v. CALLOWAY”, this email included Calloway Lab’s response to a subpoena in a case not involving the Plaintiffs. This was clearly a harassing email designed to embarrass the Plaintiffs before its large investor. DE 79-7 at 39-42.  The second email sent nine minutes later, under the same Thornton Mellon spoofed email, was sent to Plaintiff Nanci Stockwell, several employees of the Plaintiffs, and Alan Frazier of Frazier Healthcare. With a subject line Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 36 of 73 Page ID #:3562 37 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Amended Court Documents,” this email address forwarded what appeared to be a portion of a March 23, 2015 Notice to Filer of Deficiencies in Electronically Filed Documents in the case at bar that was signed off on by Andrea Keifer. DE 79-7 at 43. There is no other explanation for this than it was for harassment and embarrassment purposes.  In light of the connection to the Millenium case referred to in the Leni.Riefenstahl@mail.md email and the ubiquitous filing in the instant case, it is likely that this email account and the actions taken under it were the responsibility of Mr. Marcus. N. jeremy.birdstalls@outlook.com: The Plaintiffs received two e-mails from this account on April 12, 2015. The first email was sent using a fake name based on Plaintiff’s employee, Jeremy Stalbird. The email was directed to Mr. Stalbird, Alan Frazier of Frazier Healthcare, and another employee of the Plaintiff. The subject of the email was “Millenium v. Allied World Assurance/Nanci E. Stockwell” and included a Status Report concerning Calloway’s Response to Allied World’s subpoena. The caption had been altered to include Nanci E. Stockwell in the caption as a defendant. This was clearly designed to harass and disparage Ms. Stockwell in front of a major investor in Elements. DE 79-7 at 44 - 51.  The second email was sent 11 minutes later and was directed to Nanci Stockwell and other employees of the Plaintiff. This email contained the same text in the second email sent by the Herbie.Hancock@ausi.com email, i.e. DE 48, albeit in a different format. DE 79-7 at 52.  In light of the clear reference to Mr. Marcus’ former supervisor and the content that can be related to another email account that can be traced to Mr. Marcus, it is likely that this account and the actions taken under it were the responsibility of Mr. Marcus. O. jeremy.birdstahl@outlook.com: As if the prior email torturing Mr. Marcus’ former supervisor’s name was not enough, Mr. Marcus used an email address of Jeremy.Birdstahl@outlook.com to send an email to Mr. Stahlbird discussing insubordination. This email clearly is linked to Mr. Marcus. DE 79-7 at 53. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 37 of 73 Page ID #:3563 38 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P. bartholemew.schmekler@outlook.com: The Plaintiffs received two e-mails from this account on April 16, 2015. The first email was sent to Plaintiff Nanci Stockwell, and numerous other individuals including Plaintiff’s employees and several people at “The Deal.” The subject of the email was “Elements v. Employees - Millenium Labs v. Nanci E. Stockwell” and it included several snippets from documents filed in this case and a doctored document in the Millenium Labs v. Allied World case previously forwarded under the Jeremy.Birdstalls@outlook.com email. DE 79-7 at 56-59.  The second email, was sent several hours later to unknown recipients including Elements’ Monitored email box set up to capture certain emails. The caption was “Fw: Read: Elements v. Employees - Millenium Labs v. Nanci E. Stockwell.” This contained a Read Receipt from Jeffrey Kanige at “thedeal.com”. DE 79-7 at 54.  TheDeal.com is a website that focuses on reporting on news, people and tactics surrounding “the deal economy.” http://www.thedeal.com/about-us/company- overview/ (last visited July 6, 2017), Bialek Dec., Exh. 55.  Mr. Marcus’ email included a note, “It’s not personal. See today’s edition of Wikileaks for answers.” DE 79-7 at 54.  These emails included content sent in other emails linked to Mr. Marcus and are therefore likely to be related to Mr. Marcus, along with the conduct taken thereunder.  By sending such documents, including falsely doctored documents to appear as if Ms. Stockwell was a defendant in the Millenium Labs case, Mr. Marcus defamed and harassed Ms. Stockwell. Q. jeremiah.birdstalls@qip.ru: The Plaintiffs received one e- mail from this account on April 18, 2015. This was yet another variation of the name of Mr. Marcus’ former supervisor. It was sent to unknown recipients, including Plaintiff’s employee, with a subject line of “Promises Photos.” It advises, “This is a great photo. Enjoy,” and it attaches a altered photo of five bodybuilders with the pictures of Elements’ employees heads superimposed. One of these images was the copyrighted image of Ms. Stockwell that was used in the impersonated Twitter Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 38 of 73 Page ID #:3564 39 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accounts discussed herein, as well as images of Plaintiffs’ employees, Jeremy Stalbird and Laurel Shires, that were also used in the violative Twitter accounts. DE 79-7 at 60-61. The only explanation for this email was harassment.  In light of the similarity to other emails, it is likely that this email and the actions taken under it were the responsibility of Mr. Marcus. R. emmy.fitzhume@yahoo.com: The Plaintiffs received sixteen (16) e-mails from this account between April 30, 2015 and May 1, 2015. The first was sent at 9:50 a.m. and was sent using a spoofed name of Raymond Finklestein, a tortured version of yet another one of Plaintiff’s employees. The email was sent to numerous individuals including Plaintiff’s employees and Mr. Marcus’ old email address at Promises. The subject of the email was “EBH Financial Woes IPO Fallback.” This forwarded a message from an account using the name raymond.finkelstein@yandex.com that referred to an article, “Why Private Equity Firms Are Having Trouble Winning Health Care Deals.” DE 79-7 at 67.  Two minutes after sending the first email, Mr. Marcus again used the email to send the same content to numerous other employees of the Plaintiff. DE 79-7 at 70-72.  Three minutes after sending the second email, Mr. Marcus again forwarded the same email to additional employees of the Plaintiff. DE 79-7 at 73-75.  A few hours later, Mr. Marcus used a familiar spoofed name, resorting to the use of the Thornton Mellon name he used with the Herbie.Hancock@ausi.com email above. He forwarded an email to various individuals including Plaintiffs’ employees under the caption, Stockwell Falsely Sues Former Employee. He attaches an earlier email from Raymond Finklestein (Raymond.finklestein@yandex.com to emmy.fithume@yahoo.com) setting forth the tortured text from a document previously filed in this case. At the end of the document, Mr. Marcus wrote “Sent by Bird Mail.” DE 79-7 at 76-79.  This email was disseminated to disparage and harass Ms. Stockwell by making it appear as it there was an article written that she falsely sued a former employee. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 39 of 73 Page ID #:3565 40 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Colton Centala testified that “Sent by Bird Mail” was a term that Mr. Marcus would often use when sending emails to himself. When investigating this, Mr. Centala linked the email o one of Mr. Marcus’ personal email accounts and the IP address that has been identified herein as his personal IP address. 3.15.16 Trans. at 70.  Mr. Marcus again sent the “Stockwell Falsely Sues Former Employee” email a few minutes after the prior email, but this time sent it to numerous employees of the Plaintiffs and individuals at TheDeal.com. DE 79-7 at 80-83.  Following that email, Mr. Marcus sent another email as Thornton Mellon, this time including the text of the “EBH Financial Woes IPO Fallback” email to numerous employees at the Plaintiffs as well as individuals at TheDeal.com. DE 79-7 at 84-86. This also included the “Sent by Bird Mail” closing.  Mr. Marcus sent two additional emails with the same content to employees of the Plaintiffs, often resending this to the same people. DE 79-7 at 87-92.  On May 1, 2015, Mr. Marcus used the emmy.fitzhume@yahoo.com email with a spoofed name of “Human Resources.” Under the subject of “training Requirements,” Mr. Marcus advised Plaintiffs’ employees that they would be required to attend certain training and education requalification and that there was a cost. Mr. Marcus signed this “Regards, Aunt Jemima.”  As will be discussed below, several of these names, or variations thereof, were used in Twitter accounts that were created by Mr. Marcus.  In light of the use of the same spoofed names, the same recipients at external contacts, and the use of tortured names of people who were relevant to Mr. Marcus, the email address and the actions taken under it were likely the responsibility of Mr. Marcus. S. condi.carlyle@yahoo.com: The Plaintiffs received one e-mail from this account on May 16, 2015. Using this email, he sent a notice one of the Plaintiffs’ employees about a @RaymondFinkles Twitter account that was created by Mr. Marcus. DE 79-7 at 95. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 40 of 73 Page ID #:3566 41 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Further, Plaintiffs received documents from Yahoo about this account through a subpoena. DE 89, 91. The e-mail address incorporated Plaintiffs’ employee Theresa Carlisle’s name, which was not surprising as Ms. Carlisle was targeted by Marcus in his Twitter accounts. T. theresa.bamboozle@yahoo.com: The Plaintiffs received five e-mails from this account between May 18, 2015 and May 19, 2015. The first email was sent using a spoofed email name, Gargamel Azrael, and was sent to numerous employees of the Plaintiffs including its then-CEO Steven Spitz. Mr. Marcus also attempted to send it to Ms. Stockwell but erred in the spelling of “theelements.com.” The subject was “Streaming News,” it attached the @RaymondFinkles Twitter page, and included text that “EBH wastes mid to high six figures on lawsuit.” DE 79-7 at 96-97.  Two minutes later, Mr. Marcus re-forwarded the email to additional employees of the Plaintiff. Id. at 98.  Mr. Marcus continued to send similar emails to other individuals, including Ms. Stockwell, Alan Frazier of Frazier Healthcare, and other employees of the Plaintiff. DE 79-7 at 99-100.  Mr. Marcus then changed the spoofed name to Aunt Jemmima (similar to the name he used when signing an Emmy.Fitzhume@yahoo.com email (discussed above). He also used the closing, “Sent by Bird Mail” discussed above. DE 79-7 at 101.  Mr. Marcus followed this Aunt Jemima email with another that was sent to Ms. Stockwell, Alan Frazier of Frazier Healthcare and other employees of the Plaintiffs. The Subject of this email was “News from the War Front” and, while attaching a section from the @RaymondFinkles Twitter account, he wrote, “You may want to read the Hippocratic Oath again.” This was clearly designed to harass Ms. Stockwell. DE 79-7 at 102.  One minute later he sent the same email to the same recipients, but this time he included the closing, “Sent by Bird Mail.” DE 79-7 at 103.  Eight minutes later, Mr. Marcus sent another Aunt Jemima email to various employees of the Plaintiffs with the subject line, “Marketing.” It again attached the Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 41 of 73 Page ID #:3567 42 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 @RaymondFinkles Twitter page and added a note that “Illegal marketing practices continue to haunt EBH while hundreds of thousands wasted on last lawsuits. EBH treading water.” DE 79-7 at 104.  In light of the commonality with the other emails, including the recipients, the enclosures, and the use of the names Aunt Jemima and @RaymondFinkles, it is likely that this account and the actions taken thereunder were the responsibility of Mr. Marcus. U. leopoldkapersky@yahoo.com: The Plaintiffs received nine e- mails from this account between August 4, 2015 and August 7, 2015. The first email uses a spoofed name, Lilu Dallas and was sent to Plaintiff Nanci Stockwell. The text of the email provides: “Your HR director had a meeting with Dr. Weiss in May. Her notes are quite informative and even embarrassing to read. She questioned his loyalty to the company and commitment to confidentiality. My favorite part is when he asks why Promises just won’t change? These notes are priceless! Maybe it’s time to go public? Lilu” DE 79-7 at 105.  This email was a clear threat to Ms. Stockwell and the Plaintiffs.  Ten minutes later, Mr. Marcus resent the same email under the name Lilu Dallas, but this time from an email account jeanbaptiste.zorg@yahoo.com. In addition to Ms. Stockwell, this email was sent to the David Sack.  Mr. Marcus followed this with his standard mass email from the leopoldkapersky@yahoo.com address to various employees of the Plaintiffs under the subject, “Elements Employees Terminated - Monies Allocated to Outrageous Lawsuits.” He included a document filed in the companion Northern District of California case that was filed to force Twitter’s compliance with the subpoena served on it in this case. DE 79-7 at 107-110.  He then followed that with the same email sent to Ms. Stockwell and other individuals including employees of the Plaintiffs. Id. at 111-112. See also DE 79-7 at 113- 118.  Mr. Marcus then forwarded portions of the @RaymondFinkles Twitter account to Ms. Stockwell and Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 42 of 73 Page ID #:3568 43 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 others including employees of the Plaintiffs. DE 79-7 at 119-148.  These actions were designed to harass Ms. Stockwell and the other Plaintiffs. MR. MARCUS’ SOCIAL MEDIA ACTIVITIES MR. MARCUS’ SOCIAL MEDIA EXPERTISE 145. Mr. Marcus utilizes social media, including Facebook, Twitter, and LinkedIn. Marcus Dep. 173:19-174:14. 146. As of 2010, Mr. Marcus represented on his LinkedIn profile that social media marketing, Twitter, Facebook, and YouTube were specialties of his. Marcus Dep. Ex. 2, 92:7-23; 103:12-18. MR. MARCUS’ TWITTER ACCOUNTS 147. Mr. Marcus logged into Twitter from the IP Address 75.82.174.138. Def. Resp. to RFA1 ¶102. 148. As of May 2015, Mr. Marcus was promoting that he had a specialty in Twitter. Marcus Dep. Ex. 2, 94:5-12. 149. Mr. Marcus’ “primary” Twitter account is “MichaelMarcus3” but he admits to the possibility of having additional accounts. Marcus Dep. 173:25- 174:8; 175:21-176:14. 150. Mr. Marcus admitted to creating and disseminating content from the following Twitter accounts: @nancistockwell; @nancystockwel; @nanceystockwell; @nanceistockwell; and @RehabPolice. Def. Resp. to RFA1 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 43 of 73 Page ID #:3569 44 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ¶¶62-69; 92-93. Mr. Marcus’ creation and dissemination of content from these Twitter accounts is “conclusively established” on account of Mr. Marcus’ responses to Request Nos. 62-69, and 92-93 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b). 151. Mr. Marcus admitted to being the creator of the following twenty-four (24) Twitter accounts in a submission to the U.S. District Court, Northern District of California, in a proceeding to compel discovery from non-party Twitter: Bialek Decl. Ex. 18 (Defendant’s letter to Judge Ryu). 152. By subpoena to Twitter, account holder information, including the IP address the account was created from, and email address associated with the account, was obtained for certain Twitter accounts. December 2, 2015 Order Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 44 of 73 Page ID #:3570 45 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 91; see also Bialek Decl. Ex. 17, Joint Stipulation Ex. 5, DE 89 at 83 (Document production from Twitter, Inc. with evidence key setting forth definitions of “creation_IP” and “email” filed as Exhibit 5 to Joint Stipulation, DE 89 at 83). 153. The Twitter accounts confirmed by Twitter records to have been created from Mr. Marcus’ IP address 75.82.174.138 is: created and disseminated content from the following thirteen (13) Twitter accounts impersonating Nanci Stockwell: @nancystockwel, @nanceystockwell, @nanceistockwell, @nanceestockwell, @nanciestockwell, @stockwellnancie, @stockwellnanci, @stockwellnanci1, @stockwellnanci, @nancestockwell, @nanncistockwell, @nanciistockwell; @RehabKNine. Bialek Decl. Exs. 30-42, 46 (Twitter records confirming Mr. Marcus’ IP Address 75.82.174.138 as “creation_ip”); December 2, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 91; see also Joint Stipulation Ex. 5, DE 89 at 51 (Document production from Twitter, Inc. confirming @RehabKNine created from IP address 75.82.174.138). 154. By subpoena to Twitter, it was confirmed that the IP address 75.82.174.138 was used to login to the following Twitter account: @MsJangosHotBox. Joint Stipulation Ex. 5, DE 89 at 75 (Document production Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 45 of 73 Page ID #:3571 46 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from Twitter, Inc. confirming login to @MsJangosHotBox from IP address 75.82.174.138). THE NATURE OF THE CONTENT MARCUS DISSEMINATED FROM THE TWITTER ACCOUNTS HE CREATED 155. All of the content posted by Marcus is publicly available to view by any individual with an Internet connection. 12/15/14 Stockwell Decl. ¶32. 156. The content posted from Mr. Marcus’ Twitter Accounts included, but was not limited to, false accusations and statements towards the Plaintiffs, misrepresentations of the Plaintiffs’ business and reputation and threats directed at the Plaintiffs. 12/15/14 Stockwell Decl.; Declaration of Nanci E. Stockwell dated July 6, 2017, filed concurrently with this Motion, (hereinafter “7/6/17 Stockwell Decl.”), ¶¶5-7. 157. Mr. Marcus’ intent in creating the accounts was clear. Bialek Decl. Ex. 35 (middle finger incorporated into “Promises” name). 158. In addition, Mr. Marcus provided links to Scribd through the Twitter accounts. On Scribd, Mr. Marcus posted documents that he obtained as an employee at Promises. These documents contained employees’ private information including phone numbers as well as protocols developed by the Plaintiffs. 159. Mr. Marcus is or was the holder of the following pseudonymous usernames associated with www.scribd.com: “api-272599886”, “api-271307905” and “api-271643622”. SAC ¶ 217. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 46 of 73 Page ID #:3572 47 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YELP 160. Mr. Marcus is familiar with Yelp and has an account with the service. Marcus Dep. 180:10-19. 161. Mr. Marcus knows how to post reviews on Yelp and has done so on prior occasions. Marcus Dep. 181:14-182:15. MR. MARCUS’ DEVICES - TELEPHONE 162. Marcus has contacted Plaintiffs with the following phone numbers: 214-495-1583, 916-352-3096, 562-304-9297 and 978-291-8445. SAC ¶ 82, 84, 86, 88, 89, 91. 163. Since 1997, Marcus’ cell phone provider has been Sprint. Marcus Dep. 48:18-49:23. 164. Marcus’ phone number is 310-709-6099. Marcus Dep. 49:7-9. MARCUS’ ANONYMOUS TEXT MESSAGING 165. Mr. Marcus has been familiar with anonymous text messaging services since 2012 and has used them previously. Marcus Dep. 192:16-193:17. 166. Specifically, Marcus has used technology that creates that appearance of a phone number texting another person. Marcus Dep. 115:15-117:8. 167. Beginning at least as early as June 2014, Marcus used a service that provided untraceable text messages, which he used to send messages to employees of the Plaintiffs from untraceable phone numbers. 12/15/14 Stockwell Decl. ¶25 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 47 of 73 Page ID #:3573 48 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COPYRIGHT INFRINGEMENT / TRADEMARK COUNTERFEITING / TRADEMARK DILUTION MS. STOCKWELL’S OWNERSHIP OF REGISTERED COPYRIGHTS 168. Ms. Stockwell is the owner of two copyrighted photographs which Mr. Marcus has used without authorization. 12/15/14 Stockwell Decl. ¶¶12-15. 169. Ms. Stockwell owns all right, title, and interest in and to a headshot photograph of herself entitled “Photograph.” 12/15/14 Stockwell Decl. ¶13; Bialek Decl., Ex. 19. 170. This copyrighted work was registered with the United States Copyright Office on November 10, 2014 and assigned Copyright Reg. No. VA 1- 933-936. Bialek Decl. Ex. 20 (Certificate of Registration); 12/15/14 Stockwell Decl. ¶¶12-13 (hereinafter the “Image”). 171. Ms. Stockwell never licensed, authorized, or otherwise consented to any use of the Image by Mr. Marcus. 7/6/17 Stockwell Decl. ¶3. 172. Ms. Stockwell owns all right, title, and interest in and to a photograph of herself entitled “Profile Photograph.” 12/15/14 Stockwell Decl. ¶15; Bialek Decl. Ex. 21 (the Profile Photograph). 173. This copyrighted work was registered with the United States Copyright Office on November 18, 2014 and assigned Copyright Reg. No. VA 1- 935-705. Bialek Decl. Ex. 22 (Certificate of Registration); 12/15/14 Stockwell Decl. ¶¶14-15 (hereinafter the “Profile Photo”). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 48 of 73 Page ID #:3574 49 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 174. Ms. Stockwell never licensed, authorized, or otherwise consented to any use of the Profile Photo by Mr. Marcus. 7/6/17 Stockwell Decl. ¶4. PLAINTIFFS’ REGISTERED TRADEMARKS 175. Elements owns two registered trademarks with the United States Patent and Trademark Office, U.S. Reg. No. 3,825,889 and U.S. Reg. No. 3,825,890 directed to the name “Elements Behavioral Health” for educational services and mental health services. Bialek Decl. Ex. 23, and 25 (trademark registration certificates) (together the “Elements Trademarks”). 176. Each of the Elements Trademarks is incontestable pursuant to 15 U.S.C. § 1065. Bialek Decl. Ex. 24, and 26 (notices of acceptances re incontestability). 177. Mr. Marcus is not, and has never been, authorized to use the Elements Trademarks. Bauer Decl. ¶6. 178. Westside owns a trademark with the United States Patent and Trademark Office, U.S. Reg. No. 3,000,694, directed to the name “Promises Treatment Centers” for drug and alcohol rehabilitation services. Bialek Decl. Ex. 27 (trademark registration certificate) (the “Promises Trademark”). 179. The Promises Trademark is incontestable pursuant to 15 U.S.C. § 1065. Bialek Decl. Ex. 28. 180. Marcus is not, and has never been, authorized to use the Promises Trademark. Bauer Decl. ¶6. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 49 of 73 Page ID #:3575 50 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 181. Plaintiffs have spent well over a decade rendering services under the Promises Trademark, recognized in the United States and throughout the world to be of the highest quality, and have expended large sums of money for advertising of its rehabilitation services. Bauer Decl. ¶¶4-5, 8-12. 182. The Promises Trademark has been heavily promoted since at least as early as 2002. Bauer Decl. ¶10. 183. Plaintiffs have spent hundreds of thousands of dollars in promotions and advertisements featuring the Promises Trademark. Bauer Decl. ¶11. 184. Promises, and the services offered under the Promises Trademark, have been the subject of significant unsolicited third party media coverage. Bauer Decl. ¶12; Bialek Decl. Ex. 29 (third party media coverage re Promises Trademark). MR. MARCUS’ COPYRIGHT & TRADEMARK INFRINGEMENTS 185. Mr. Marcus created, reproduced, distributed, and publicly displayed infringing content from at least thirteen (13) Twitter accounts. Bialek Decl. Exs. 30-42. 186. The Image was reproduced, distributed, and publicly displayed by Mr. Marcus on the social networking website Twitter in connection with at least six (6) different accounts without the authorization of Ms. Stockwell. Bialek Decl. Exs. 30-34, 42. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 50 of 73 Page ID #:3576 51 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 187. The Profile Photo was reproduced, distributed, and publicly displayed by Mr. Marcus on the social networking website Twitter in connection with at least eight (8) different accounts without the authorization of Ms. Stockwell. Bialek Decl. Exs. 35-42. 188. Reproductions, counterfeits, copies, and colorable imitations of the registered Elements Trademarks were used in commerce by Mr. Marcus, including in connection with at least eleven (11) Twitter accounts, without the consent of Elements. Bialek Decl. Exs. 31, 33-36, 39-43, 45. 189. Reproductions, counterfeits, copies, and colorable imitations of the registered Promises Trademark were used in commerce by Mr. Marcus, including in connection with at least eleven (11) Twitter accounts, without the consent of Westside. Bialek Decl. Exs. 31, 33-36, 39-43, 45. Mr. Marcus’ Infringements of the Image & Trademarks @nancistockwell 190. Mr. Marcus created the Twitter account @nancistockwell on or about October 15, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 30 (publicly available @nancistockwell account information and content and Twitter records regarding this account); 12/15/14 Stockwell Decl. ¶26. 191. Mr. Marcus admitted to creating @nancistockwell Twitter account featuring the infringing Image. Bialek Decl. Ex. 14 (Request No. 62: Admit that Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 51 of 73 Page ID #:3577 52 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YOU created the Twitter account, @nancistockwell); Bialek Decl. Ex. XX (Mr. Marcus’ Response to Request No. 62: Admit); Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nancistockwell). 192. Mr. Marcus’ creation of the @nancistockwell Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Marcus’ response to Request No. 62 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b). 193. Mr. Marcus’ posting of content regarding the Plaintiffs using the @nancistockwell Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Marcus’ response to Request No. 63 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b); Bialek Decl. Ex. 13 (Request No. 63: Admit that YOU posted content about the Plaintiffs using the Twitter account, @nancistockwell); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 63: Admit). @nancystockwel 194. Mr. Marcus created the Twitter account @nancystockwel on or about October 30, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 31 (publicly available @nancystockwel account information and content and Twitter records regarding this account). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 52 of 73 Page ID #:3578 53 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 195. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nancystockwel. Bialek Decl. Ex. 31 (publicly available @nancystockwel account information and content and Twitter records regarding this account). 196. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nancystockwel. Bialek Decl. Ex. 31 (publicly available @nancystockwel account information and content and Twitter records regarding this account). 197. Mr. Marcus admitted to creating @nancystockwel Twitter account featuring the infringing Image and counterfeit marks. Bialek Decl. Ex. 13 (Request No. 64: Admit that YOU created the Twitter account, @nancystockwel); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 64: Admit); Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nancystockwel). 198. Mr. Marcus’ creation of the @nancystockwel Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Mr. Marcus’ response to Request No. 64 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 53 of 73 Page ID #:3579 54 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 199. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nancystockwel account. Bialek Decl. Ex. 31 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). 200. Mr. Marcus’ posting of content regarding the Plaintiffs using the @nancystockwel Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Marcus’ response to Request No. 65 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b); Bialek Decl. Ex. 13 (Request No. 65: Admit that YOU posted content about the Plaintiffs using the Twitter account, @ nancystockwel); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 65: Admit). @nanceystockwell 201. Mr. Marcus created the Twitter account @nanceystockwell on or about November 6, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 32 (publicly available @nanceystockwell account information and content and Twitter records regarding this account). 202. Mr. Marcus admitted to creating @nanceystockwell Twitter account featuring the infringing Image. Bialek Decl. Ex. 13 (Request No. 66: Admit that YOU created the Twitter account, @nanceystockwell); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 66: Admit); Bialek Decl. Ex. 18 (Mr. Marcus’ Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 54 of 73 Page ID #:3580 55 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanceystockwell). 203. Mr. Marcus’ creation of the @nanceystockwell Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Marcus’ response to Request No. 66 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b). 204. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nanceystockwell account. Bialek Decl. Ex. 32 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). 205. Mr. Marcus’ posting of content regarding the Plaintiffs using the @nanceystockwell Twitter account featuring the infringing Image is “conclusively established” on account of Mr. Marcus’ response to Request No. 67 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b); Bialek Decl. Ex. 13 (Request No. 67: Admit that YOU posted content about the Plaintiffs using the Twitter account, @nanceystockwell); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 67: Admit). @nanceistockwell 206. Mr. Marcus created the Twitter account @nanceistockwell on or about November 11, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 33 (publicly Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 55 of 73 Page ID #:3581 56 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 available @nanceistockwell account information and content and Twitter records regarding this account). 207. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nanceistockwell. Bialek Decl. Ex. 33 (publicly available @nanceistockwell account information and content and Twitter records regarding this account). 208. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nanceistockwell. Bialek Decl. Ex. 33 (publicly available @nanceistockwell account information and content and Twitter records regarding this account). 209. Mr. Marcus admitted to creating @nanceistockwell Twitter account featuring the infringing Image and counterfeit marks. Bialek Decl. Ex. 18 (Request No. 68: Admit that YOU created the Twitter account, @nanceistockwell); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 68: Admit); Bialek Decl. Ex. XX (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanceistockwell). 210. Mr. Marcus’ creation of the @nanceistockwell Twitter account featuring the infringing Image and counterfeit marks is “conclusively established” Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 56 of 73 Page ID #:3582 57 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on account of Mr. Marcus’ response to Request No. 68 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b). 211. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nanceistockwell account. Bialek Decl. Ex. 33 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). 212. Mr. Marcus’ posting of content regarding the Plaintiffs using the @nanceistockwell Twitter account featuring the infringing Image and counterfeit marks is “conclusively established” on account of Mr. Marcus’ response to Request No. 69 of Plaintiffs’ First Requests for Admission. Fed. R. Civ. P. 36(b); Bialek Decl. Ex. 13 (Request No. 69: Admit that YOU posted content about the Plaintiffs using the Twitter account, @nanceistockwell); Bialek Decl. Ex. 14 (Mr. Marcus’ Response to Request No. 69: Admit). @stockwellnancie 213. Mr. Marcus created the Twitter account @stockwellnancie on or about November 20, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 34 (publicly available @stockwellnancie account information and content and Twitter records regarding this account). 214. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @stockwellnancie. Bialek Decl. Ex. 34 (publicly available Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 57 of 73 Page ID #:3583 58 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 @stockwellnancie account information and content and Twitter records regarding this account). 215. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @stockwellnancie. Bialek Decl. Ex. 34 (publicly available @stockwellnancie account information and content and Twitter records regarding this account). 216. Mr. Marcus admitted to creating @stockwellnancie Twitter account featuring the infringing Image and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @stockwellnancie). 217. Twitter records confirm that Mr. Marcus’ IP address was utilized to create the @stockwellnancie account. Bialek Decl. Ex. 34 (Twitter records listing 75.82.174.138 as “creation_ip”). Mr. Marcus’ Infringements of the Profile Photo & Trademarks @nanceestockwell 218. Mr. Marcus created the Twitter account @nanceestockwell on or about November 13, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 35 (publicly available @nanceestockwell account information and content and Twitter records regarding this account). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 58 of 73 Page ID #:3584 59 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 219. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nanceestockwell. Bialek Decl. Ex. 35 (publicly available @nanceestockwell account information and content and Twitter records regarding this account). 220. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nanceestockwell. Bialek Decl. Ex. 35 (publicly available @nanceestockwell account information and content and Twitter records regarding this account). 221. Mr. Marcus admitted to creating @nanceestockwell Twitter account featuring the infringing Profile Photo and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanceestockwell). 222. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nanceestockwell account. Bialek Decl. Ex. 35 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). @nanciestockwel 223. Mr. Marcus created the Twitter account @nanciestockwel on or about November 18, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 36 (publicly Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 59 of 73 Page ID #:3585 60 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 available @nanciestockwel account information and content and Twitter records regarding this account). 224. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nanciestockwel. Bialek Decl. Ex. 36 (publicly available @nanciestockwel account information and content and Twitter records regarding this account). 225. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nanciestockwel. Bialek Decl. Ex. 36 (publicly available @nanciestockwel account information and content and Twitter records regarding this account). 226. Mr. Marcus admitted to creating @nanciestockwel Twitter account featuring the infringing Profile Photo and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanciestockwel). 227. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nanciestockwel account. Bialek Decl. Ex. 36 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). @stockwellnanci1 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 60 of 73 Page ID #:3586 61 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 228. Mr. Marcus created the Twitter account @stockwellnanci1 on or about November 21, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 37 (publicly available @stockwellnanci1 account information and content and Twitter records regarding this account). 229. Mr. Marcus admitted to creating @stockwellnanci1 Twitter account featuring the infringing Profile Photo. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @stockwellnanci1). 230. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @stockwellnanci1 account. Bialek Decl. Ex. 37 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). @stockwellnanci 231. Mr. Marcus created the Twitter account @stockwellnanci on or about November 25, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 38 (publicly available @stockwellnanci account information and content and Twitter records regarding this account). 232. Mr. Marcus admitted to creating @stockwellnanci Twitter account featuring the infringing Profile Photo. Bialek Decl. Ex. 18 (Mr. Marcus’ Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 61 of 73 Page ID #:3587 62 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @stockwellnanci). 233. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @stockwellnanci account. Bialek Decl. Ex. 38 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). @stockwellnancy 234. Mr. Marcus created the Twitter account @stockwellnancy on or about November 26, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 39 (publicly available @stockwellnancy account information and content and Twitter records regarding this account). 235. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @stockwellnancy. Bialek Decl. Ex. 39 (publicly available @stockwellnancy account information and content and Twitter records regarding this account). 236. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @stockwellnancy. Bialek Decl. Ex. 39 (publicly available @stockwellnancy account information and content and Twitter records regarding this account). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 62 of 73 Page ID #:3588 63 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 237. Mr. Marcus admitted to creating @stockwellnancy Twitter account featuring the infringing Profile Photo and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @stockwellnancy). 238. Twitter records confirm that Mr. Marcus’ IP address was utilized to create the @stockwellnancy account. Bialek Decl. Ex. 39 (Twitter records listing 75.82.174.138 as “creation_ip”). @nancestockwell 239. Mr. Marcus created the Twitter account @nancestockwell on or about December 1, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 40 (publicly available @nancestockwell account information and content and Twitter records regarding this account). 240. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nancestockwell. Bialek Decl. Ex. 40 (publicly available @nancestockwell account information and content and Twitter records regarding this account). 241. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nancestockwell. Bialek Decl. Ex. 40 (publicly available Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 63 of 73 Page ID #:3589 64 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 @nancestockwell account information and content and Twitter records regarding this account). 242. Mr. Marcus admitted to creating @nancestockwell Twitter account featuring the infringing Profile Photo and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nancestockwell). 243. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nancestockwell account. Bialek Decl. Ex. 40 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). @nanncistockwell 244. Mr. Marcus created the Twitter account @nanncistockwell on or about November 26, 2014 and reproduced, distributed, and publicly displayed the Profile Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 41 (publicly available @nanncistockwell account information and content and Twitter records regarding this account). 245. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nanncistockwell. Bialek Decl. Ex. 41 (publicly available @nanncistockwell account information and content and Twitter records regarding this account). Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 64 of 73 Page ID #:3590 65 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 246. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nanncistockwell. Bialek Decl. Ex. 41 (publicly available @nanncistockwell account information and content and Twitter records regarding this account). 247. Mr. Marcus admitted to creating @nanncistockwell Twitter account featuring the infringing Profile Photo and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanncistockwell). 248. Twitter records confirm that Mr. Marcus’ IP address was utilized to create the @nanncistockwell account. Bialek Decl. Ex. 41 (Twitter records listing 75.82.174.138 as “creation_ip”). Mr. Marcus’ Infringements of the Image, Profile Photo, and Trademarks @nanciistockwell 249. Mr. Marcus created the Twitter account @nanciistockwell on or about December 14, 2014 and reproduced, distributed, and publicly displayed the Image without Ms. Stockwell’s authorization. Bialek Decl. Ex. 42 (publicly available @nanciistockwell account information and content and Twitter records regarding this account). 250. Mr. Marcus created the Twitter account @nanciistockwell on or about December 14, 2014 and reproduced, distributed, and publicly displayed the Profile Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 65 of 73 Page ID #:3591 66 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Photo without Ms. Stockwell’s authorization. Bialek Decl. Ex. 42 (publicly available @nanciistockwell account information and content and Twitter records regarding this account). 251. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Promises Trademark in commerce in connection with the Twitter account @nanciistockwell. Bialek Decl. Ex. 42 (publicly available @nanciistockwell account information and content and Twitter records regarding this account). 252. Mr. Marcus used a spurious mark identical with, or substantially indistinguishable from, the Elements Trademarks in commerce in connection with the Twitter account @nanciistockwell. Bialek Decl. Ex. 42 (publicly available @nanciistockwell account information and content and Twitter records regarding this account). 253. Mr. Marcus admitted to creating @nanciistockwell Twitter account featuring the infringing Image and counterfeit marks. Bialek Decl. Ex. 18 (Mr. Marcus’ submission to the Honorable Donna M. Ryu stating “Defendant created” the Twitter account @nanciistockwell). 254. Twitter records confirm that Mr. Marcus’ IP address was utilized to create and repeatedly login to the @nanciistockwell account. Bialek Decl. Ex. 42 (Twitter records listing 75.82.174.138 as “creation_ip” and “last_login_ip”). FALSE IMPERSONATION CAL. PEN. CODE 528.5 (COUNT IV) Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 66 of 73 Page ID #:3592 67 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARCUS’ FALSE IMPERSONATION OF MS. STOCKWELL VIA TWITTER 255. Mr. Marcus is the creator and holder of thirteen (13) Twitter accounts falsely impersonating Plaintiff Nanci Stockwell. Bialek Decl. Exs. 30-42; 12/15/14 Stockwell Decl. ¶¶26-30 (the “Stockwell Twitter Accounts”). 256. The thirteen (13) Stockwell Twitter Accounts falsely impersonating Ms. Stockwell which Mr. Marcus opened in Ms. Stockwell’s name are: @nancistockwell, @nancystockwel, @nanceystockwell, @nanceistockwell, @nanceestockwell, @nanciestockwell, @stockwellnancie, @stockwellnanci, @stockwellnanci1, @stockwellnanci, @nancestockwell, @nanncistockwell, @nanciistockwell. Bialek Decl. Exs. 30-42. 257. Each of the Stockwell Twitter Accounts created by Mr. Marcus contains Ms. Stockwell’s name or a variation thereof in the account handle. Bialek Decl. Exs. 30-42; 12/15/14 Stockwell Decl. ¶¶23, 29. 258. Each of the profiles created and published by Mr. Marcus in connection with the thirteen (13) Stockwell Twitter Accounts contains Ms. Stockwell’s name, Ms. Stockwell’s job title, and the trademarked company names of her employer at the time, Elements. Bialek Decl. Exs. 30-42; 12/15/14 Stockwell Decl. ¶¶26, 29-30; 7/6/17 Stockwell Decl. ¶5. 259. Each of the thirteen (13) Stockwell Twitter Accounts created by Mr. Marcus contains an unauthorized reproduction, distribution, and public display of Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 67 of 73 Page ID #:3593 68 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the copyrighted Image or the Profile Photo owned by Ms. Stockwell. Bialek Decl. Exs. 30-42; 12/15/14 Stockwell Decl. ¶30. 260. Mr. Marcus disseminated false allegations and threats utilizing each of the Stockwell Twitter Accounts. Bialek Decl. Exs. 30-42; 12/15/14 Stockwell Decl. ¶31. 261. Immediately upon the discovery of a new Twitter impersonation account, Plaintiffs’ counsel diligently filed complaints with Twitter to remove/suspend these accounts. 12/15/14 Stockwell Decl. ¶34. 262. Upon removal, Mr. Marcus instantaneously created a new impersonation accounts with similar statements, accusations, threats and misrepresentations. 12/15/14 Stockwell Decl. ¶35. 263. Mr. Marcus acknowledges that a Twitter account purporting to be Nanci Stockwell and depicting her photograph could be perceived by others to be real. Marcus Dep. 326:6-10 MR. MARCUS’ FALSE IMPERSONATION OF MS. STOCKWELL BY EMAIL 264. Mr. Marcus opened at least five email accounts in the name of Ms. Stockwell. See ¶ 66, 79, 80, 90, and 118. 265. Stockwell’s name was incorporated into several of the fake email accounts Marcus utiltized to send email messages to Plaintiffs’ employees, Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 68 of 73 Page ID #:3594 69 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including nstockwell@yandex.com and nancy-stockwell@ya-ru. 12/15/14 Stockwell Decl. ¶23. 266. He has also used nstockwell@yandex.kz, nstockwell@yandex.ru and nstockwell@yandex.ua. See supra. HARASSMENT CAL. CIV. CODE 1708.7 (COUNT IX) MR. MARCUS’ HARASSMENT OF MS. STOCKWELL VIA TWITTER 267. Mr. Marcus’ created the (13) Stockwell Twitter Accounts in the name of Ms. Stockwell from October 2014 to December 2014. Bialek Decl. Exs. 30-42. 268. Marcus’ conduct put Stockwell in fear of continued and escalated harassment by Marcus. 12/15/14 Stockwell Decl. ¶38. 269. Immediately upon the discovery of a new Twitter impersonation account, Plaintiffs’ counsel diligently filed complaints with Twitter to remove/suspend these accounts. 12/15/14 Stockwell Decl. ¶34. 270. Upon removal, Mr. Marcus instantaneously created a new impersonation accounts with similar statements, accusations, threats and misrepresentations. 12/15/14 Stockwell Decl. ¶35. 271. The thirteen (13) Twitter accounts and their contents were directed at Ms. Stockwell, utilizing her photograph, name, job title, and name of her employer, for the purpose of harassing, alarming, annoying, tormenting, and terrorizing Ms. Stockwell. 12/15/14 Stockwell Decl. ¶¶26, 29-30; 7/6/17 Stockwell Decl. ¶¶5-6. Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 69 of 73 Page ID #:3595 70 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 272. Mr. Marcus acknowledges that creating multiple Twitter accounts could be viewed by the person being impersonated as harassment. Marcus Dep. 326:11-21. 273. Mr. Marcus’ conduct harassed and threatened Ms. Stockwell. 7/6/17 Stockwell Decl. ¶¶5-6. 274. Mr. Marcus’ conduct resulted in Ms. Stockwell being seriously alarmed, annoyed, and tormented. 7/6/17 Stockwell Decl. ¶5. 275. Mr. Marcus’ conduct caused Ms. Stockwell to reasonably fear for her safety and suffer substantial anxiety, emotional distress, and torment. 7/6/17 Stockwell Decl. ¶6. 276. Ms. Stockwell clearly demanded that Mr. Marcus cease and abate his conduct. Through counsel, she initiated this litigation, and obtained a preliminary injunction directed at stopping the harassing conduct. SAC 68. MR. MARCUS’ HARASSMENT OF MS. STOCKWELL BY EMAIL 277. In November 2014, Mr. Marcus sent personalized e-mail messages to Ms. Stockwell with escalated threats about her job, privacy and safety. 12/15/14 Stockwell Decl. ¶24 278. On or about November 21, 2014, Mr. Marcus sent an email to Ms. Stockwell from the Aquapal address 2f75fp7@svk.jp stating “Wait until you see the next round of documentation to get released. You may want to resign before it becomes public. ES.” April 10, 2015 Order Granting Joint Stipulation Re: Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 70 of 73 Page ID #:3596 71 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 (Aquapal records covered by Joint Stipulation). 279. This harassing email is attributable to Mr. Marcus because it originated from his IP address 75.82.174.138. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 (Aquapal records covered by Joint Stipulation). 280. On or about November 24, 2014, Mr. Marcus sent an email to Ms. Stockwell from the Aquapal address 344e3a@svk.jp stating “You are totally fucked!” April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 (Aquapal records covered by Joint Stipulation). 281. This harassing email is attributable to Mr. Marcus because it originated from his IP address 75.82.174.138. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 (Aquapal records covered by Joint Stipulation). 282. The authenticity and admissibility of the documents attributing these harassing emails to Mr. Marcus is not in dispute. April 10, 2015 Order Granting Joint Stipulation Re: Authenticity and/or Admissibility of Documents, DE 56; DE 54-1 (Aquapal records covered by Joint Stipulation). 283. Mr. Marcus also harassed Ms. Stockwell as set forth herein through the dissemination of emails about her, in her name as referenced herein, or to her Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 71 of 73 Page ID #:3597 72 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following the entry of the Consent Injunction that prohibited Mr. Marcus from contacting her. DE 35 (Amended). CONCLUSIONS OF LAW I. Mr. Marcus is liable for copyright infringement. II. Mr. Marcus is liable for trademark counterfeiting. III. Mr. Marcus is liable for trademark dilution. IV. Mr. Marcus is liable for false impersonation. V. Mr. Marcus is liable for harassment Dated: July 7, 2017 Respectfully Submitted, /s/Adam Bialek Adam R. Bialek (Admitted Pro Hac Vice) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 nd Street New York, New York 10017 Telephone:(212) 490-3000 Facsimile: (212) 490-3038 Ian A. Stewart Gregory K. Lee WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071-2407 Telephone:(213) 443-5100 Facsimile: (213) 443-5101 Attorneys for Plaintiffs Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 72 of 73 Page ID #:3598 73 PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 8263675v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:14-cv-08760-JAK-RZ Document 185-2 Filed 07/07/17 Page 73 of 73 Page ID #:3599