                                                                           FILED
                           NOT FOR PUBLICATION                              APR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LAMOON, INC.,                                    No. 08-56868

             Plaintiff - Appellee,               D.C. No. 8:08-cv-00009-AHS-AN

  v.
                                                 MEMORANDUM *
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.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    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.1 Lamour’s claims alleged that Lamoon breached

the settlement agreement between Lamoon and Lamour by bringing suit against the


          **
            The Honorable John R. Tunheim, US District Judge for District of
Minnesota, sitting by designation.
      1
             The parties and the district court refer to the third-party defendant’s
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
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,




                                            3
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


                                           4
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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