Laatz et al v. Zazzle, Inc. et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
NICKY LAATZ, et al.,
Plaintiffs,
v.
ZAZZLE, INC., et al.,
Defendants.
Case No. 5:22-cv-04844-BLF
ORDER RE MOTIONS IN LIMINE
[Re: ECF Nos. 517, 518, 519, 520, 521,
524, 525, 526, 527]
Before the Court are Plaintiff Nicky Laatz’s four motions in limine (“MILs”), ECF
Nos. 524–27, and Defendants Zazzle, Inc. (“Zazzle”) and Mohamed Alkhatib’s five MILs, ECF
Nos. 517–21. Defendants oppose Plaintiff’s first, second, and third MILs, ECF Nos. 547–49, but
do not oppose Plaintiff’s fourth MIL, ECF No. 550. Plaintiff opposes all of Defendants’ MILs.
ECF Nos. 535–39. The Court held the Final Pretrial Conference on January 22, 2025, and issued
oral rulings on the Parties’ MILs. See ECF No. 552. The Court subsequently issued orders
approving and adopting the Parties’ Joint Pretrial Statement, ECF No. 554, and setting trial
schedule and procedures, ECF No. 556. The Court also heard argument on Plaintiff’s motion for
leave to file a second amended complaint, which will be addressed in a separate order.
The Court’s MIL rulings are summarized as follows:
PLAINTIFF’S MOTIONS IN LIMINE
(1) Plaintiff’s MIL No. 1 to Exclude Evidence Regarding Plaintiff’s Actual or Potential
Licenses Other than the BE License [ECF No. 524]
In her MIL No. 1, Plaintiff moves to exclude evidence of (1) licenses executed and offered
by her to third parties and (2) licensing inquiries and negotiations that did not lead to actual
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licenses pursuant to Federal Rules of Evidence(“FRE”) 401–03, Federal Rule of Civil Procedure
(“FRCP”) 26, and FRE 408. In opposition, Defendants respond that evidence of prior actual or
potential licenses is relevant to the issue of damages and does not violate any rule of evidence or
civil procedure.
Under FRE 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” FRE 401. FRE 402 provides that “relevant evidence is admissible unless
another rule or federal law provides otherwise, and that irrelevant evidence is inadmissible.”
Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019); accord FRE 402 (providing
that relevant evidence is admissible unless precluded by the United States Constitution, a federal
statute, the Federal Rules of Evidence, or a rule prescribed by the United States Supreme Court).
FRE 401’s “basic standard of relevance . . . is a liberal one.” Crawford, 944 F.3d at 1077
(alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993)).
FRE 403 provides that “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” FRE 403; see also United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001).
In her argument for exclusion based on relevance, Plaintiff draws an analogy to patent
infringement case law, arguing that the actual and potential licenses Defendants seek to introduce
are not sufficiently comparable to the Blooming Elegant Trio License (“BE License”) and pointing
to factual differences between the licenses. Plaintiff further argues that certain licenses must be
excluded based on FRCP 26 due to failure to timely disclose evidence of comparability and based
on FRE 408 as evidence of a “dispute and potential settlement.” ECF No. 524. Defendants
respond that the actual and potential licenses are admissible to aid the jury in assessing the
economic reasonableness of Plaintiff’s damages theory, arguing that they reveal her pricing
expectations and policies. Defendants argue that the licenses are sufficiently comparable for this
purpose and that exclusion under FRE 408 is not warranted because there is no evidence that any
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of these negotiations were intended to settle a live controversy between Plaintiff and any other
party.
As a threshold matter, the Court rejects Plaintiff’s analogy to patent infringement case law,
as the Court has already excluded Defendants’ hypothetical negotiation theory of damages and
limited Defendants’ damages expert to rebutting what remains of Mr. Persechini’s testimony.
Rather, the Court evaluates relevance under the FRE more generally and agrees with Defendants
that evidence of actual licenses is highly probative as to the economic reasonableness of damages.
In any event, the Court finds that the factual distinctions that Plaintiff seeks to draw at most bear
on the weight to be accorded to the evidence rather than admissibility. On the other hand, the
Court agrees with Plaintiff that evidence of preliminary negotiations that did not ultimately lead to
consummated license agreements is so far attenuated from the economic reasonableness of
damages that any probative value will be substantially outweighed by the risk of jury confusion
and the significant time wasted in having to explain the context in which those negotiations arose.
Plaintiff’s remaining procedural objections are meritless. As to Rule 26, Plaintiff herself
produced many of the documents in discovery and cannot now object to their use as untimely.
Moreover, Plaintiff also publicly posted much of the pricing information, so no expert disclosure
was required for that evidence in the first place. As to FRE 408, Plaintiff fails to even identify any
disputed claim that existed at the time of any of the negotiations or whether those negotiations
were entered to compromise the claim.
Accordingly, Plaintiff’s MIL No. 1 is DENIED as to actual licenses and the negotiations
leading up to them and GRANTED as to negotiations that did not lead to license agreements.
(2) Plaintiff’s MIL No. 2 to Exclude Evidence Regarding Marketing Materials for
Proving Notice [ECF No. 525]
In her MIL No. 2, Plaintiff moves to preclude Defendants from introducing, for the
purpose of proving notice for their statute-of-limitations defense, evidence including marketing
emails, social media posts, and associated metadata dated after August 24, 2018, or that did not
involve the Blooming Elegant Trio (“BE Trio”) pursuant to FRE 401–03. In opposition,
Defendants argue that this evidence is relevant and would not cause substantial prejudice.
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Plaintiff’s breach-of-contract claim is subject to California’s four-year limitations period.
Cal. Code Civ. Proc. § 337(a). Because she filed the complaint in this action on August 24, 2022,
see ECF No. 1, Defendants intend to argue at trial that Plaintiff had actual or inquiry notice before
August 24, 2018, as their sole remaining affirmative defense. Plaintiff argues that Defendants
improperly seek to invite the jury to infer from the volume of Zazzle’s marketing materials that
Plaintiff should have been on notice of the unlicensed use of the BE Trio, contending that the
Court should exclude as irrelevant any marketing materials that fall outside of the limitations
period or do not involve the BE Trio. Defendants urge that such a bright-line exclusion is
unwarranted and that a “holistic” review of Zazzle’s marketing and advertising is relevant to
Plaintiff’s credibility and whether she could have discovered the unlicensed use of the BE Trio
through reasonable diligence.
Evidence after August 24, 2018, is simply not relevant to Plaintiff’s conduct during the
limitations period. Whether pre-August 24, 2018, evidence that did not involve BE Trio should
have put Plaintiff on notice of her claim is an issue for the jury to resolve and not a basis for
exclusion.
The Court accordingly GRANTS MIL No. 2 for all marketing materials after August 24,
2018, and DENIES MIL No. 2 for all marketing materials before August 24, 2018.
(3) Plaintiff’s MIL No. 3 to Exclude Evidence Regarding Comparable Preview Functions
[ECF No. 526]
In her MIL No. 3, Plaintiff moves to exclude evidence regarding the free “preview”
function on websites including Font Spring, MyFonts, NickyLaatz.com, and Creative Market,
specifically for the purpose of comparing those preview widgets to the Zazzle Design Tool.
Defendants respond that this evidence is relevant to contested issues of liability and damages.
Plaintiff’s theory of breach of the BE License is that Defendants violated the single-seat
provision by incorporating the BE Trio into the Zazzle Design Tool and hence allowing Zazzle’s
customers to use the BE Trio without a license. Defendants intend to offer evidence of other
“preview” widgets on third-party font marketplaces for the purpose of comparing those widgets to
Zazzle’s Design Tool. Plaintiff argues that evidence of these third-party preview functions is
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irrelevant to the issue whether Defendants breached the BE License and should thus be excluded
to avoid wasting time and risk confusing the jury. In opposition, Defendants argue that the
evidence is relevant to show that they did not breach the BE License and to rebut Plaintiff’s theory
of damages, which would assign a monetary value to allowing Zazzle’s users to create mock-ups
incorporating the BE Trio without finalizing them.
The Court agrees with Defendants that the comparable preview widgets are relevant to the
issues of breach and damages. Evidence of industry custom, as well as what is done elsewhere
with respect to previewing fonts and testing them out, provides background context that may
inform the jury’s understanding of the nature and consequences of breach and consequential
damages. While Plaintiff conclusorily argues that admitting this evidence will result in wasteful
“mini-trials,” the evidence itself is not complicated.
Accordingly, MIL No. 4 is DENIED, except as to the demonstrative identified in
Plaintiff’s brief. As the Court explained on the record, Defendants shall present that
demonstrative to the Court at the February 5, 2026, conference, at which point the Court will rule
on it.
(4) Plaintiff’s MIL No. 4 to Exclude Evidence Regarding Parties’ Overall Financial
Condition [ECF No. 527]
In her unopposed MIL No. 4, Plaintiff moves to exclude evidence regarding her and
Zazzle’s overall financial condition, arguing that such evidence is irrelevant and would risk
confusing the jury and wasting time.
MIL No. 4 is GRANTED, based on the Court’s understanding that it is limited to the
Parties’ overall financial condition and not any profit that Plaintiff or Defendants made from the
BE Trio with other customers.
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DEFENDANTS’ MOTIONS IN LIMINE
(1) Defendants’ MIL No. 1 to Exclude Evidence Relating to the Creative Market
Frequently Asked Questions Page [ECF No. 517]
In their MIL No. 1, Defendants move to exclude evidence relating to the Creative Market
Frequently Asked Questions Page (“FAQ”), including (1) the FAQ itself, (2) testimony from
Zazzle’s witnesses about whether they read the FAQ, and (3) testimony about the meaning of the
FAQ and how it informed the meaning of the BE License. In opposition, Plaintiff argues that,
under California’s contextual approach to contract interpretation, evidence regarding the FAQ is
admissible as extrinsic evidence to assist the Court (and if needed, the jury) in interpreting terms
of the BE License.
In its summary judgment order, the Court held that the BE License consists of the Creative
Market Terms of Service (“TOS”), License Terms, and BE Offering Page, expressly finding that
the FAQ is not part of the BE License. See ECF No. 414. Defendants accordingly argue that,
because the Court previously determined that the BE License does not include the FAQ, the “FAQ
itself has no legal effect” and accordingly should be excluded as irrelevant and/or prejudicial,
wasteful, and confusing under FRE 401–03. Plaintiff responds that the FAQ is relevant because it
is admissible as extrinsic evidence as to the meaning of the terms “One Seat” and “Item” and is
not barred by the parol evidence rule. Plaintiff further argues that any prejudice caused by
admitting the FAQ can be cured by a limiting instruction under FRE 105.
The thrust of Defendants’ argument is that evidence relating to the FAQ is irrelevant
because the Court has already found that the FAQ’s terms do not legally bind the Parties.
Although Defendants are correct, Plaintiff seeks to offer the FAQ to support her interpretation of
key terms of the BE License. Thus, to determine whether the FAQ should be excluded under
FRE 401–03, the Court considers whether the FAQ is admissible under California’s extrinsic
evidence doctrine and not precluded by the parol evidence rule. The decision to admit extrinsic
evidence in the process of contract interpretation involves a two-step analysis. Pac. Gas & Elec.
Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33, 40 (1968). The Court first
“provisionally receives” any credible evidence regarding whether “the language is ‘reasonably
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susceptible’ to the interpretation urged by a party.” Winet v. Price, 4 Cal. App. 4th 1159, 1165
(1992) (citation omitted). “If, after considering the extrinsic evidence, the court decides that the
language is susceptible to only one rational interpretation, it may interpret the language as a matter
of law. If, on the other hand, the language is fairly susceptible to each party’s interpretation, a
question of fact exists as to the parties’ intentions and the issue must be presented to the fact
finder.” Integrated Glob. Concepts, Inc. v. J2 Glob., Inc., No. 12-cv-03434-RMW, 2013 WL
1320772, at *3 (N.D. Cal. Mar. 29, 2013) (citations omitted).
Although Defendants contend that the BE License is “unambiguous,” the Parties identified
the meaning of the terms “One Seat” and “Item” as disputed legal issues in their Joint Pretrial
Statement. ECF No. 515. As to “One Seat,” Plaintiff contends that the term “refers to a single
end user (i.e., a single person),” while Defendants contend that the term “allows use by any
employee of an entity licensee so long as they are acting in their capacity as a representative of
that entity.” As to “Item,” Plaintiff contends that the term “encompasses both the Blooming
Elegant Trio font software and the Blooming Elegant Trio fonts themselves, as well as the image
files provided therewith,” while Defendants contend that the term is limited to the BE open type
font files (the “OTF files”). Having provisionally received the FAQ without determining its
admissibility, the Court finds that both terms are reasonably susceptible to the interpretations
proffered by the Parties. As described below, the Court will permit the jury to consider evidence
relating to the FAQ for the purpose of interpreting the term “One Seat.” As stated at the hearing,
because it appears likely that the Parties can come to an agreement on the meaning of the term
“Item,” the Court will require the Parties to present the Court with a joint definition of the term
“Item.”
Defendants further argue that, because the lodestar of contractual interpretation in
California is the parties’ mutual intent, the FAQ is not admissible as extrinsic evidence because
there is no evidence that Defendants actually read it. They cite no authority for their apparent
contention that there must be evidence of both parties affirmatively reading extrinsic evidence to
be admissible, and the Court declines the invitation to adopt this bright-line rule. In this case,
there is no doubt that the FAQ was linked to the opening page, which Defendants indisputably did
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see, and thus, the Court agrees with Plaintiff that whether Defendants read the FAQ is an issue that
goes to weight rather than admissibility. See First Nat’l Mortg. Co. v. Fed. Realty Inv. Tr.,
631 F.3d 1058, 1067–68 (9th Cir. 2011) (explaining that the jury resolves conflicts where
competing interpretations turn on conflicting extrinsic evidence). At the very least, the Court
finds that the FAQ sheds light on a latent ambiguity, which “arises when a contract is seemingly
unambiguous on its face, but where extrinsic evidence would expose that the terms are in fact
susceptible to multiple interpretations.” Lehman v. MediaLab AI, Inc., No. 23-cv-09055-CAS-
JPRX, 2024 WL 5317268, at *6 (C.D. Cal. Oct. 28, 2024); see also Wolf v. Walt Disney Pictures
& Television, 162 Cal. App. 4th 1107, 1133 (2008).
The FAQ is not barred under the parol evidence rule. Plaintiff does not intend to introduce
the FAQ as an additional term of the BE License but rather to explain the meaning of terms that
the Parties dispute. Put differently, Plaintiff does not offer the FAQ as a “prior or
contemporaneous agreement” that would “add to, detract from, or vary” the written contract.
Shaw v. City of Sacramento, 250 F.3d 1289, 1293 (9th Cir. 2001). It is offered instead for the
limited interpretive purpose of explaining how Creative Market used and explained undefined
terms in the same transaction context. Of course, if Plaintiff attempts to argue to the jury that
Defendants were legally bound by the terms of the FAQ—i.e., that the jury could find breach of
the BE License based on a “breach” of the FAQ terms—Defendants would be free to object to this
improper use. In the same vein, the Court agrees with Plaintiff that any prejudice to Defendants
would be minimal with a proper limiting instruction and reasonable controls.
Defendants’ MIL No. 1 is accordingly DENIED as to the term “One Seat.” As discussed
on the record, the Court will require the Parties to propose a definition for “Item” prior to trial.
(2) Defendants’ MIL No. 2 to Exclude Evidence Relating to Dismissed Fraud Claims
[ECF No. 518]
In their MIL No. 2, Defendants move to exclude evidence relating to Plaintiff’s dismissed
fraud claims, namely, (1) testimony from Zazzle witnesses regarding what BE License terms
Defendants viewed and how “diligently” they reviewed them and (2) evidence and testimony
about Zazzle’s purchase of other, unrelated font licenses. The motion is partially opposed, with
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Plaintiff responding that evidence relating to the Morgana font license is relevant to the issue of
damages.
The Court agrees with Defendants that evidence of Defendants’ lack of diligence, other
font licenses, and other such evidence that disparages Defendants has no probative value on the
remaining claim for breach-of-contract and is unduly prejudicial within the meaning of FRE 403.
As to liability, Defendants’ state of mind is simply not relevant, and admission of this evidence
would at the very least risk confusing the jury. On the issue of damages, however, the Court
agrees with Plaintiff that the extent to which Defendants sought to replace economic value derived
from the BE Trio with the Morgana font provides relevant context for economic reasonableness of
damages and is admissible with a limiting instruction.
MIL No. 2 is accordingly GRANTED, except to the extent that Plaintiff seeks to introduce
evidence of the Morgana font license on the issue of damages.
(3) Defendants’ MIL No. 3 to Exclude Evidence Relating to Dismissed Copyright Claims
[ECF No. 519]
In their MIL No. 3, Defendants move to exclude evidence that is solely relevant to
Plaintiff’s dismissed copyright claim, including (1) evidence that Defendants created “derivative
works” of the BE OTF files, (2) evidence that the Zazzle Design Tool is a “derivative work” of the
BE OTF files, and (3) testimony regarding the process by which Plaintiff designed and created the
BE Trio. Plaintiff does not oppose exclusion as to evidence of copyright infringement but urges
that the term “derivative works” as used in the BE License is not preempted by the Copyright
Right Act and that evidence of how she developed the BE Trio remains relevant for disputed
issues relevant to her breach-of-contract claim.
The Parties do not dispute that evidence of copyright infringement is not relevant to
Plaintiff’s breach-of-contract claim. The Court agrees with Plaintiff that Defendants may not
rewrite the BE License to remove the term “derivative works” through a MIL. Defendants cite no
case law or other authority for their contention that the term “derivative works” is limited to the
context of copyright infringement, and the Court declines to prohibit Plaintiff from arguing to the
jury that Defendants breached the BE License by creating derivative works. As to evidence of
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how Plaintiff designed the BE Trio, the Court will permit Plaintiff to provide background
information to aid the jury in understanding this relevant context, but agrees with Defendants that,
if such testimony veers into unnecessary and irrelevant exposition of her creative process and the
time she devoted to creating the BE Trio, it will be subject to exclusion.
Accordingly, Defendants’ MIL No. 3 is GRANTED as to evidence of copyright
infringement only and otherwise DENIED.
(4) Defendants’ MIL No. 4 to Exclude Undisclosed Expert Opinions from Daniel Garrie
[ECF No. 520]
In their MIL No. 4, Defendants move to exclude evidence and testimony from Plaintiff’s
expert Daniel Garrie concerning Zazzle’s promotional emails, Plaintiff’s email filtering, and his
forensic examination of Plaintiff’s computers pursuant to FRCP 26(a)(2)(B) and FRE 901.
Plaintiff responds that Mr. Garrie’s opinions comply with Rule 26 and that the challenged
evidence does not require further authentication.
To rebut Defendants’ statute-of-limitations affirmative defense, Plaintiff seeks to introduce
forensic examination reports and expert testimony through Mr. Garrie to demonstrate that an email
filter prevented her from actually viewing certain promotional emails that Zazzle sent her.
Defendants apparently take the position that such evidence must be excluded because it was
disclosed by Mr. Garrie in a 2023 declaration rather than his 2024 expert report, arguing that they
have been prejudiced from this purported omission because they “had no reason to ask about those
topics” during his deposition. Plaintiff argues that exclusion is not warranted because this
evidence was timely disclosed and that, in any case, any error was harmless.
A testifying expert must provide a written report containing: “(i) a complete statement of
all opinions the witness will express and the basis and reasons for them; (ii) the facts or data
considered by the witness in forming them; (iii) any exhibits that will be used to summarize or
support them; (iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid
for the study and testimony in the case.” FRCP 26(a)(2)(B). An expert’s testimony is limited to
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the subject matter disclosed in their Rule 26 expert report. See, e.g., Nortek Air Sols., LLC
v. Energy Lab Corp., No. 14-cv-02919-BLF, 2016 WL 3856250, at *7 (N.D. Cal. July 15, 2016).
Testimony will otherwise be excluded unless the failure to timely disclose was harmless, which
requires examination of (1) prejudice to the opposing party, (2) ability to cure the prejudice,
(3) likelihood of trial disruption, and (4) bad faith or willfulness. Lanard Toys Ltd. v. Novelty,
Inc., 375 Fed. App’x 705, 713 (9th Cir. 2010).
Defendants cite no authority for the proposition that Mr. Garrie cannot testify to subject
matter from his Rule 26-compliant 2023 declaration simply because he did not restate it in his
2024 expert report. To the contrary, FRCP 26(a)(2)(B) “does not prohibit an expert from issuing
multiple reports disclosing discrete opinions.” Nat’l Credit Union Admin Bd. v. RBS Secs., Inc.,
No. 11-cv-2340-JWL, 2014 WL 1745448, at *2 (D. Kan. Apr. 30, 2014). In any event,
Defendants clearly did not suffer any prejudice from any purported omissions, since counsel for
Defendants acknowledged during Mr. Garrie’s deposition that they were aware that Mr. Garrie
would be testifying as to opinions in his “expert report or [his] declaration” and expressly
questioned him about the opinions contained in the declarations. Mathews Decl. Ex. C at 42:15–
19.
Accordingly, Defendants’ MIL No. 4 is DENIED.
(5) Defendants’ MIL No. 5 to Preclude Evidence Regarding Dismissed Damages Theories
[ECF No. 521]
In their MIL No. 5, Defendants move to exclude evidence relating to damages theories that
the Court has excluded, including (1) disgorgement of profits, (2) revenues and profits derived by
Zazzle from selling products containing the BE Trio, (3) the number of Zazzle customers who
accessed the BE Trio and saved a pending design, (4) testimony from Plaintiff and her husband
about the purported $14 value per visitor to Zazzle’s design tool, and (5) a survey created by
Plaintiff’s expert witness Sara Parikh. In opposition, Plaintiff responds that evidence of Zazzle’s
revenues and profits, as well as Plaintiff’s testimony as to her licensing of the BE Trio, are
relevant to the economic reasonableness of damages.
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In its Daubert order, the Court explained that Plaintiff’s damages expert Dominic
Persechini may not present a disgorgement theory of damages to the jury due to the Court having
granted summary judgment for Defendants on Plaintiff’s copyright claim. ECF No. 486. The
Court further ruled that disgorgement is not a proper measure of contract damages in this case.
The Court also explained that Mr. Persechini would not be permitted to testify that the jury should
award damages by multiplying a $14 license fee by the number of users who could have
hypothetically had access to the BE Trio through Zazzle’s Design Tool, explaining that he would
have no evidentiary basis or foundation in law to offer competent expert testimony on this point.
In the Joint Pretrial Statement, Plaintiff indicates that she “seeks an award of damages equivalent
to $14 times various user populations.” ECF No. 515. Defendants now argue that evidence of
Zazzle’s profits and Plaintiff’s subjective testimony about the value of the BE License are not
relevant to the issue of damages and risk confusing the jury. Plaintiff responds that evidence of
revenues is directly tied to the infringing use of the licensed BE Trio, as well as her valuation of
the market value of using the BE Trio, is relevant damages evidence for the jury.
Both Parties agree that disgorgement is not an appropriate remedy in this breach-of-
contract dispute. While Defendants are correct that Plaintiff cannot present Zazzle’s profits to the
jury as a measure of damages, she may present evidence “of profits made by [the] defendant in
violation of the” BE License to “furnish a reasonable basis for estimating the amount” of her lost
profits. Steelduct Co. v. Henger-Seltzer Co., 26 Cal. 2d 634, 651 (1945). Plaintiff is accordingly
permitted to introduce such evidence for the purpose of establishing the economic reasonableness
about her theory of lost profits and consequential damages. This ruling is without prejudice to
Defendants’ Rule 37 motion to exclude this damages theory.
As to Plaintiff’s testimony about the value of the BE License, Defendants appear to have
misapprehended the scope of the Court’s Daubert order, which was addressed to the narrow issue
before the Court of Mr. Persechini’s so-called “hypothetical license” damages theory based on the
California Supreme Court’s decision in Desny v. Wilder, 46 Cal. 2d 715 (1956). The Court
explained that “[i]f it is Plaintiff’s theory that each time a consumer used the Design Tool
constituted a breach, she will need evidence to support that theory, since Desny does not fill that
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United States District Court
Northern District of California
analytical gap . . . . Mr. Persechini is not that witness because he performed no independent
analysis of the value of any breach or the number of separate breaches and simply accepted
without question Plaintiff’s counsel’s theory of valuation.” ECF No. 486. The order explains that
Mr. Persechini is not competent to testify as to the value of each breach and expressly
contemplates that Plaintiff will need to present other evidence or testimony establishing that
value—the Court therefore agrees with Plaintiff that she may testify as to how much money she
derives from the sale of each BE License and that this figure may be presented to the jury in
calculating damages. Plaintiff, as owner of the BE Trio, may also testify about the value of any
breach. Whether the jury finds her credible will depend on her testimony and cross-examination.
Finally, as the Court explained in its Daubert order, Mr. Persechini’s opinion that damages
can be calculated by multiplying user populations by percentages identified in Dr. Parikh’s survey
is not proper expert testimony. ECF No. 486. The Court accordingly agrees with Defendants that
the Parikh Survey is irrelevant to the issue of calculating damages and may not be introduced for
this purpose. Whether the Parikh Survey is relevant to the popularity or desirability of the BE
Trio is not addressed in this MIL.
Accordingly, MIL No. 5 is GRANTED as to disgorgement, pending designs, and the use
of the Parikh Survey for damages, and DENIED as to evidence of Zazzle’s profits from the sale of
products using the BE Trio and Plaintiff’s testimony about the value of the BE License.
IT IS SO ORDERED.
Dated: January 29, 2026
______________________________________
BETH LABSON FREEMAN
United States District Judge
Case 5:22-cv-04844-BLF Document 569 Filed 01/29/26 Page 13 of 13