Clark v. Zellet CA2/6

Filed 9/22/14 Clark v. Zellet CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

WAYNE CLARK et al., 2d Civil No. B251728 (Super. Ct. No. 1381521) Plaintiffs and Respondents, (Santa Barbara County)

v.

DONN ZELLET,

Defendant and Appellant.

Donn Zellett appeals from a judgment confirming an arbitration award for $376,418 damages in favor of Wayne Clark and SportFence International, Inc., a 1 Colorado Corporation. (Code Civ. Proc., §§ 1286; 1294. subd. (d).) Zellet contends that the arbitrator exceeded her powers in calculating damages and the superior court erred in not correcting the award. (§ 1286.6.) We affirm. Facts and Procedural History SportFence is a plastic, breakaway fence panel used for sporting events. It is manufactured and sold under the trademark SportFence which is owned by Wayne Clark. In 2006, Clark sued Zellet for patent and trademark infringement. In May 2008, they entered into a settlement agreement providing that Zellet would stop

1 All statutory references are to the Code of Civil Procedure.

manufacturing SportFence. Zellet agreed not to market or sell SportFence products not manufactured by Clark and agreed not to use special dies to manufacture SportFence parts. After the settlement agreement was executed, Zellet continued manufacturing and selling SportFence but placed no purchase orders with Clark. Zellet repudiated the settlement agreement and, in 2011, instructed a vendor (Barnes Plastic) not to sell patented parts to Clark. In 2012, Zellet changed the name of his company from SportFence to Best Portable Fence and continued to reference SportFence on his website. Clark sued for injunctive relief and contract damages. On February 2, 2012, the Santa Barbara Superior Court ordered the matter to arbitration and issued a preliminary injunction enjoining Zellet from: (1) manufacturing plastic portable fencing using certain die parts, and (2) selling or offering for sale portable plastic fencing under the name "SportFence" except for fencing purchased from Clark. JAMS Arbitrator Nancy J. Warren found that Zellet breached the settlement agreement when he continued to manufacture, market, and sell SportFence without ordering the fence product from Clark. The arbitrator also found that Zellet used patented parts in direct violation of the settlement agreement and the preliminary injunction. Clark was awarded $376,418 damages plus $59,544.58 attorney's fees and costs. The arbitrator found that Clark was entitled to a permanent injunction prohibiting Zellet from manufacturing SportFence or selling SportFence products not manufactured by Clark. On June 26, 2013, the superior court granted Clark's petition to confirm the arbitration award and denied Zellet's request to correct the award. (§ 1286.6.) A $523,154.90 judgment was entered against Zellet consisting of $376,418 damages, $87,192.32 prejudgment interest, $46,124.80 attorney fees and $13,419.78 costs. Standard of Review In determining whether the arbitrator exceeded her powers, we review the superior court's order de novo and give substantial deference to the arbitrator's award. (Advanced Micro Devices, Inc.. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) Judicial