Stephan Dean v. Kaiser Foundation Health Plan Inc

Opinion

Case 5:22-cv-00278-MCS-KK Document 37 Filed 04/19/22 Page 1 of 4 Page ID #:944

10 11 STEPHAN DEAN and LIZA DEAN, Case No. 5:22-cv-00278-MCS-SHK Individually and DBA SUREFILE ORDER GRANTING DEFENDANT

13 Plaintiffs, AND COUNTERCLAIMANT KAISER FOUNDATION HEALTH 14 v. PLAN, INC.’S MOTION FOR

PLAN, INC., KAISER FOUNDATION AGAINST DEFENDANTS 16 HOSPITALS, and Does 1-50 Inclusive,

17 Defendants. 18 AND RELATED COUNTER-CLAIMS. 19 20 21 After consideration of defendant and counterclaimant Kaiser Foundation 22 Health Plan’s (“KFHP”) motion for preliminary injunction against plaintiffs and 23 counter-defendants Stephan Dean and Liza Dean, dba SureFile Filing Systems 24 (collectively, “Counter-Defendants”), all other papers filed herein, the records of the 25 case, hearing on the motion, and good cause appearing, the Court hereby GRANTS 26 KFHP’s motion in its entirety. 27 “A plaintiff seeking a preliminary injunction must establish that he is likely to 28 succeed on the merits, that he is likely to suffer irreparable harm in the absence of -1- . Case 5:22-cv-00278-MCS-KK Document 37 Filed 04/19/22 Page 2 of 4 Page ID #:945

1 preliminary relief, that the balance of equities tips in his favor, and that an injunction 2 is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) 3 (citations omitted). “Alternatively, a court may issue a preliminary injunction if the 4 moving party demonstrates either a combination of probable success on the merits 5 and the possibility of irreparable injury or that serious questions are raised and the 6 balance of hardships tips sharply in his favor.” Glob. Horizons, Inc. v. U.S. Dep't of 7 Labor, 510 F.3d 1054, 1057 (9th Cir. 2007) (citations, emphasis, and internal 8 quotation marks omitted). The Ninth Circuit balances these factors using a “sliding 9 scale” approach, where “a stronger showing of one element may offset a weaker 10 showing of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th 11 Cir. 2011). 12 KFHP has demonstrated that it is likely to succeed on the merits of its statutory 13 and common law claims of trademark infringement, unfair competition, and breach 14 of contract. In particular, KFHP has demonstrated that Counter-Defendants likely 15 have used the KAISER, KAISER PERMANENTE, KP, KP HEALTHCONNECT, 16 and the Happy Family Logo marks (collectively, the “KFHP Marks”) without KFHP’s 17 consent and in a manner that is likely to cause confusion. See Century 21 Real Estate 18 Corporation v. Sandlin, 846 F.2d 1175, 1178 (9th Cir. 1988). 19 The evidence further shows that Counter-Defendants likely have breached their 20 contracts with KFHP by expressly and unequivocally threatening to violate their 21 obligation to keep all Kaiser patient data confidential. MAG Aerospace Indus., LLC 22 v. Precise Aerospace Mfg., Inc., No. 5:18-CV-01096-RGK-JC, 2018 WL 6074596, at 23 *2-3 (C.D. Cal. July 18, 2018). Counter-Defendants’ efforts to sell that information 24 also likely violate the parties’ 2009 Business Associates Agreement, which only 25 permits Counter-Defendants to use the information for the purposes of scanning. 26 KFHP has demonstrated that Counter-Defendants’ conduct is likely to cause 27 irreparable harm without a preliminary injunction. KFHP has provided evidence 28 sufficient to show that it has built and maintained a positive reputation among the -2- . Case 5:22-cv-00278-MCS-KK Document 37 Filed 04/19/22 Page 3 of 4 Page ID #:946

1 healthcare industry, and that reputation will be diminished so long as Counter- 2 Defendants continue to operate a website suggesting that KFHP sells its own patients’ 3 data. These facts also tip the balance of the equities in favor of KFHP and show that 4 the public interest favors granting KFHP’s motion. Therefore, KFHP has met its 5 burden. See Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 6 1137, 1144 (9th Cir. 2011) (quoting Winter, 444 U.S. at 20). 7 For the foregoing reasons, the Court GRANTS the motion and ORDERS the 8 following: 9 1. Counter-Defendants and each of them, and, as applicable, their officers, 10 agents, servants, directors, employees, servants, partners, representatives, assigns, 11 successors, related companies, and attorneys, and all persons in active concert or 12 participation with Counter-Defendants or with any of the foregoing, be enjoined 13 preliminarily during the pendency of this action thereafter from: 14 a. Manufacturing, transporting, promoting, importing, advertising, 15 publicizing, distributing, offering for sale, or selling any goods or services under the 16 KFHP Marks; 17 b. Manufacturing, transporting, promoting, importing, advertising, 18 publicizing, distributing, offering for sale, or selling any goods or services under any 19 other mark, name, symbol, or logo, which is likely to cause confusion or to cause 20 mistake or to deceive persons into the erroneous belief that any goods or services that 21 Counter-Defendants caused to enter the stream of commerce or any of Counter- 22 Defendants’ commercial activities are sponsored or licensed by KFHP, are authorized 23 by KFHP, or are connected or affiliated in some way with KFHP or the KFHP Marks; 24 c. Implying KFHP’s approval, endorsement, or sponsorship of, or 25 affiliation or connection with, Counter-Defendants’ goods, services, or commercial 26 activities, passing off Counter-Defendants’ business as that of KFHP’s; 27 d. Representing or implying that Counter-Defendants are in any way 28 sponsored by, affiliated with, or licensed by KFHP; -3- . Case 5:22-cv-00278-MCS-KK Document 37 Filed 04/19/22 Page 4 of 4 Page ID #:947

1 e. Selling, disclosing, or causing the sale or disclosure to any third 2 party of any patient information associated with KFHP; and 3 f. Knowingly assisting, inducing, aiding, or abetting any other 4 person or business entity in engaging in or performing any of the activities referred to 5 in paragraphs (a) to (e) above. 6 2. KFHP shall post a bond in the amount of $5,000, pursuant to Fed. R. Civ. 7 P. 65(c). 8 10 Dated: April 19, 2022 __________________________________ 11 UNITED STATES DISTRICT JUDGE 12 cc: Fiscal 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- .