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28 1 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

Edward F. O’Connor (SBN 123398)

efo@avynolaw.com

AVYNO LAW P.C.

6345 Balboa Boulevard, Suite 208, Building I

Encino, CA 91316

Tel: 949.291.2894

Fax: 818.332.4205

Stephen M. Lobbin (SBN 181195)

slobbin@onellp.com

ONE LLP

12340 El Camino Real, Suite 220

San Diego, California

Tel: 858.333.5794

Fax: 949.258.5081

Attorneys for Defendants Cali Resources, Inc., Carlos Kelvin and Great Value, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FITBIT, INC., a Delaware corporation,

Plaintiff,

v.

LAGUNA 2, LLC, a New Jersey Limited 

Liability Company; JOEL BLANK, an 

individual; CALI RESOURCES, INC., a 

California corporation; CARLOS 

KELVIN, GREAT VALUE, LLC, a 

California Limited Liability Company; PCOVE ENTERPRISES INC. dba 

BUYERS CONSULTATION SERVICES, 

a California corporation; 

ENVIRONMENTAL LIQUIDATION, 

INC., a California corporation; 

JONATHAN MANHAN, an individual; 

FRANCIS MICHAEL BAKER aka MIKE 

BAKER, an individual; MI

TECHNOLOGIES, INC. dba DISCOUNT 

MERCHANT, California corporation; 

AMIR TAFRESHI, an individual, 

INNOVATION ENTERPRISES, INC. dba 

THE MERCHANT KING, a California 

corporation; JOUBIN RAHIMI, an 

individual, and DOES 12-30, inclusive

Defendants.

Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE

APPLICATION FOR 

RECONSIDERATION

Date: January 10, 2018

Time: 9:30 a.m.

Ctrm: 5, 17TH Floor

Honorable Edward M. Chen

Case 3:17-cv-00079-EMC Document 162 Filed 01/08/18 Page 1 of 6
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2 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, on January 10, 2018 at 9:30 a.m. or as soon as the matter 

may be heard, in Courtroom 5 on the 17th Floor of the United States Court for the Northern 

District of California, San Francisco Courtroom, 450 Golden Gate Avenue, San Francisco, CA 

94102, before the Honorable Edward M. Chen, or without a hearing on the matter, Cali 

Defendants (“Cali”) will, and hereby does, respectfully move this Court ex parte with notice to 

opposing counsel, pursuant to Fed. R. Civ. Proc. Rules 6(c)(1) and 56(d) and Civil Local Rule 6-3 

and 7-10, for an order to reconsider Court’s order granting Plaintiff’s motion to strike Cali’s 

counterclaim relating to Custom’s seizure of Cali’s products.

This Motion is based on the Notice of Motion; the Memorandum of Points and Authorities 

below; the Proposed Order; the Declaration of Carlos Kelvin in Support; and, such other 

supporting papers as may be submitted in connection with this Motion.

Dated: January 8, 2018 Respectfully submitted,

/s/ Edward F. O’Connor

Edward F. O’Connor

Stephen M. Lobbin

Attorney for Defendants

Cali Resources, Inc., Carlos Kelvin and 

Great Value LLC

Case 3:17-cv-00079-EMC Document 162 Filed 01/08/18 Page 2 of 6
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3 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

On January 5, 2018, this Court granted Plaintiff's motion to strike the defamation claims 

of Cali based upon Plaintiff's false representations to Customs. The sole basis for the Court's 

decision was that Fitbit previously submitted a supplemental declaration from Miller:

(stating that the products purchased through the Groupon website were shipped in 

counterfeit Fitbit packaging and with counterfeit charging cables and dongles

falsely bearing Fitbit marks... and the photographs provided by Cali do not 

establish that the Chargers and accessories (as opposed to the packaging) did not 

bear any Fitbit trademark. Thus, Cali has failed to present a prima facie factual 

showing on its libel claim. (Emphasis in the original)

There are numerous reasons why this decision is in error. First, that particular declaration 

was nowhere presented in any of Fitbit’s papers in support of its motion. That declaration is not 

presented in its moving papers and was not presented in its reply papers. In addition, that 

declaration and the issue raised by this Court, in its decision, were never even discussed at the 

oral argument. In short, the Court's reliance on this particular declaration was a complete surprise 

to Cali. If this Court was going to rely on that declaration it should have informed Cali, and 

provided Cali with an opportunity to respond. Instead, this Court threw out a possible 

multimillion dollar legitimate counterclaim based on a declaration submitted in support of a 

different motion, many months ago. This is totally unfair to Cali, particularly in view of the fact 

that the sole basis set forth by Fitbit in support of its motion for summary judgment (which is 

what an ANTI-SLAPP motion is, in reality) related entirely to the packaging. This Court's 

finding, that Cali has provided evidence showing that the product, which was seized, was not in 

any packaging using the Fitbit mark totally rebuts all of the arguments Fitbit made in its papers. 

At a minimum, due process requires that Cali be entitled to respond to the basis for the Court's 

decision, which basis came out of the blue and was a complete surprise to Cali.

The second reason the Court's reliance on that declaration is incorrect, is the fact that the 

Court misread what the declaration says. The declaration, while poorly worded, is clearly stating 

that the so-called counterfeit cables and dongles were contained within the counterfeit packaging. 

Case 3:17-cv-00079-EMC Document 162 Filed 01/08/18 Page 3 of 6
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4 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

Nowhere in that declaration, does Mr. Miller state that there were actual Fitbit markings placed 

on the cables and dongles by any of the Defendants.

The third reason the Court's reliance on that declaration is incorrect, is that the declaration 

is hearsay. At no time, in this case, has Fitbit presented any actual cables or dongles at all. In 

particular, it has presented no such products with any trademarks affixed to them. Mr. Miller's 

declaration, were it to be interpreted as the Court interpreted it, would mean that he would be 

testifying about the condition of products in Fitbit’s possession without providing those actual 

products (direct evidence), so that the Court could see for itself whether or not there were false 

trademarks affixed to them. 

Cali is submitting, with this application, the declaration of Carlos Kelvin, the president of 

Cali. In his declaration he states that all of the products seized by Customs contained original 

Fitbit cables and dongles. Had Fitbit attempted to raise that particular issue in its papers, the 

declaration would have been submitted in opposition to the motion. Fitbit did not raise that 

issue because it knew that there were no counterfeit cables or dongles in the products seized 

by Customs to which its trademark was affixed.

The Miller declaration does not say that any of the “counterfeit” cables and dongles 

were in the products seized by Customs. In fact, it says the opposite. It says products 

“purchased through Groupon”. Obviously the products seized by Customs were not sold 

through Groupon.

In short, the Court's determination to grant summary judgment against Cali on its libel 

claim, regarding seizure of its products by Customs, was unfair and wrong as a matter of law. It is 

respectfully requested that the Court reconsider its decision; reinstate Cali’s claim and reduce or 

remove the attorneys’ fees awarded to Fitbit.

//

//

//

//

//

Case 3:17-cv-00079-EMC Document 162 Filed 01/08/18 Page 4 of 6
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5 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

It should be noted that this same issue will be addressed at the upcoming hearing on Cali’s 

motion to set aside or revise the injunction. It is because of the overlapping of these issues that 

Cali is submitting this motion as an ex parte emergency motion for hearing at the same time as 

the preliminary injunction hearing.

Dated: January 8, 2018 Respectfully submitted,

/s/ Edward F. O’Connor

Edward F. O’Connor

Stephen M. Lobbin

Attorney for Defendants

Cali Resources, Inc., Carlos Kelvin and 

Great Value LLC

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6 Case No. 3:17-cv-00079 EMC

CALI DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION

PROOF OF SERVICE

I hereby certify that on January 8, 2018, I electronically transmitted the 

foregoing document using the CM/ECF system for filing, which will transmit the 

document electronically to all registered participants as identified on the Notice of 

Electronic Filing, and paper copies have been served on those indicated as nonregistered participants.

Dated: January 8, 2018 /s/ Edward F. O’Connor

Case 3:17-cv-00079-EMC Document 162 Filed 01/08/18 Page 6 of 6