Lamoon, Inc. v. Lamour Nail Products, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMOON, INC.,
Plaintiff - Appellee,
v.
LAMOUR NAIL PRODUCTS, INC.,
Defendant-third-party-
defendant - Appellant,
and
ALFALFA NAIL SUPPLY, INC.;
REGAL NAILS, SALON AND SPA,
LLC,
Defendants,
and
CONSORTIUM OF RESEARCH
EXPERTS, INC., DBA Core Nail Supply,
Defendant-third-party-
defendant.
No. 08-56868
D.C. No. 8:08-cv-00009-AHS-AN
MEMORANDUM *
FILED
APR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable John R. Tunheim, US District Judge for District of**
Minnesota, sitting by designation.
The parties and the district court refer to the third-party defendant’s1
claim against the plaintiff as a “counterclaim.” Such a claim is properly referred to
simply as a “claim.” See Fed. R. Civ. P. 14(a)(2)(D).
2
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, Senior District Judge, Presiding
Argued and Submitted March 5, 2010
Pasadena, California
Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
District Judge.
In March 2007, Lamoon, Inc. (“Lamoon”) and Lamour Nail Products, Inc.
(“Lamour”) entered into a settlement agreement terminating a trademark
infringement lawsuit by Lamoon against Lamour. In 2008, Lamoon brought suit
against Alfalfa Nail Supply, Inc., Regal Nails Salon & Spa LLC, and a Regal Nails
franchise (collectively “Alfalfa Defendants”), distributors of Lamour’s products.
The Alfalfa Defendants filed a third-party complaint against Lamour for indemnity
and contribution. Along with its answer to the third-party complaint, third-party
defendant Lamour asserted claims against plaintiff Lamoon for breach of contract
and implied equitable indemnity. Lamour’s claims alleged that Lamoon breached1
the settlement agreement between Lamoon and Lamour by bringing suit against the

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Alfalfa Defendants. Lamoon responded with a motion to strike Lamour’s claims
under California’s anti-SLAPP law, Cal. Civ. Proc. Code § 425.16. On October
14, 2008, the district court granted plaintiff Lamoon’s anti-SLAPP motion. We
affirm.
Lamoon’s claims against the Alfalfa Defendants fall within the categories of
protected speech set forth in California’s anti-SLAPP law, Cal. Civ. Proc. Code §
425.16(e). “A claim for relief filed in federal district court indisputably is a
‘statement or writing made before a . . . judicial proceeding.’” Navellier v. Sletten,
29 Cal. 4th 82, 90 (Cal. 2002). “The constitutional right of petition encompasses
the basic act of filing litigation.” Id. (internal quotation marks omitted). Lamour’s
claims were a direct response to Lamoon’s protected act of filing suit against the
Alfalfa Defendants. They therefore “arise[] from” Lamoon’s protected speech or
petitioning. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir.
2003).
Lamour has not met its burden of demonstrating that its claims are “legally
sufficient and supported by a prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by [Lamour] is credited.” Metabolife Int’l, Inc.
v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001) (quoting Wilcox v. Superior Court,

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27 Cal. App. 4th 809, 823 (Cal. Ct. App. 1994), overrruled on other grounds by
Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (Cal. 2002)).
Lamour has not demonstrated a probability of success on the merits of its
breach of contract claim. If the Alfalfa Defendants are covered agents or affiliates
of Lamour, Lamour is itself in breach of the settlement and Consent Judgment
because of the Alfalfa Defendants’ infringing acts. If the Alfalfa Defendants are
not covered by the settlement agreement, they are independent infringers of
Lamoon’s trademark. In neither case does Lamoon’s lawsuit breach the terms of
the settlement agreement with Lamour. Either Lamoon is bringing suit to enforce
the agreement, or it is bringing suit against entities not parties to the agreement.
The fact that those parties sought indemnity and contribution from Lamour does
not breach Lamoon’s promise not to bring suit against Lamour.
Lamour has also failed to demonstrate a probability of success on the merits
of its equitable indemnity claim. Lamoon is not seeking to recover twice, but to
enforce the terms of the settlement and injunction.
We also affirm the district court’s decision not to grant Lamour leave to
amend its complaint. “A district court does not err in denying leave to amend
where the amendment would be futile.” Gardner v. Martino, 563 F.3d 981, 990
(9th Cir. 2009). Both of Lamour’s claims depend on the faulty premise that

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Lamoon’s suit breaches the agreement between them. Because Lamour’s claims
have underlying legal deficiencies that cannot be cured, amendment would be
futile.
AFFIRMED.

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