1 MARK V.

ISOLA, SBN 154614

[email protected]
2 BROTHERS SMITH LLP ELECTRONICALLY
2033 N. Main Street, Suite 720
3 Walnut Creek, California 94596 FILED
Telephone: (925) 944-9700 Superior Court of California,
County of San Francisco
4 Facsimile: (925) 944-9701
01/06/2023
Clerk of the Court
5 Attorneys for CANARY, LLC DBA BY: JEFFREY FLORES
CANARY MARKETING Deputy Clerk
6

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SAN FRANCISCO

CGC-23-603842
10

11 CANARY, LLC DBA CANARY Case No.

MARKETING,
12 COMPLAINT FOR:
(1) BREACH OF CONTRACT;
B ROTHERS S MITH LLP

13 Plaintiff, (2) ACCOUNT STATED; AND

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(3) DECLARATORY RELIEF

14 v.

15 TWITTER, INC., and DOES 1-5, inclusive,

16 Defendants.

17

18 Plaintiff CANARY, LLC DBA CANARY MARKETING (“Canary”) alleges as follows

19 for its complaint against Defendant TWITTER, INC. (“Twitter”):

20 PARTIES

21 1. Canary is a California limited liability company with its principal place of business

22 in San Ramon, California. Canary is a multi-faceted marketing company that, among other things,

23 helps businesses promote themselves by designing, packaging, and distributing branded

24 merchandise to employees and customers.

25 2. Upon information and belief, Twitter is a Delaware corporation with its principal

26 place of business in San Francisco, California. Twitter is a social media company that operates the

27 microblogging and social networking service Twitter. Twitter had been a public company for

28 nearly a decade until its acquisition by Elon Musk for about $44 billion on October 27, 2022.

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 1 3. The true names and capacities of defendants Does 1 through 5, inclusive, are

2 unknown to Canary, and Canary therefore sues such Defendants by such fictitious names pursuant

3 to California Code of Civil Procedure section 474. Canary will seek leave of court to amend this

4 complaint after it has ascertained the true names and capacities of the Doe Defendants.

5 4. Upon information and belief, each of the Defendants, including the Defendants

6 served as Doe Defendants herein, was the agent and/or employee of each of the remaining

7 Defendants and in doing the things herein mentioned was acting within the scope of such agency

8 and/or employment and are responsible for each and every act and obligation herein set forth and

9 proximately caused the damages complaint of herein.

10 5. This Court has jurisdiction over this dispute because the amount in controversy,

11 exclusive of interest and costs, exceeds the jurisdictional minimum of this Court.

12 6. Venue is proper in San Francisco County because Twitter is based in this County;
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13 the contract at issue herein was entered into, and was to be performed, in whole or in part, in this
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14 County; and a substantial part of the events or omissions giving rise to Canary’s claims against

15 Defendants occurred in this County.

16 7. On or about June 24, 2020, Canary and Twitter entered into the Master Services

17 Agreement (the “MSA”), pursuant to which Canary agreed, among other things, to provide goods

18 and services to Twitter, and Twitter agreed, among other things, to pay Canary for the goods and
19 services that Twitter received within sixty (60) days of receipt of an invoice. (A true and correct

20 copy of the MSA is attached hereto as Exhibit A and incorporated herein by this reference.)

21 8. Between approximately June 2020 and August 2022, Canary provided goods and

22 services to Twitter, and in compliance with the MSA, Twitter paid Canary within sixty (60) days

23 after receipt of invoices from Canary. Beginning in September 2022, Canary provided goods and

24 services to Twitter and sent invoices requesting payment for such work, but Twitter has failed to

25 pay such invoices.

26 ///

27 ///

28 ///

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 1 FIRST CAUSE OF ACTION
2 (Breach of Contract)
3 9. Canary realleges and incorporates by reference the allegations of Paragraphs 1
4 through 8, inclusive, as though set forth herein in full.

5 10. Canary and Twitter entered into the MSA pursuant to which Canary agreed to

6 provide goods and services to Twitter; and Twitter agreed to make the required payments of

7 Canary’s invoices within sixty (60) days of receipt.

8 11. Canary fully performed all of its obligations that the MSA required Canary to do,

9 except for any obligations that Canary was excused from having to perform due to Twitter’s

10 breach.

11 12. Twitter breached the MSA by failing to pay Canary’s invoices within the required

12 sixty-day time period.

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13 13. As of the date of filing this Complaint, Canary has suffered damages due to
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14 Twitter’s breach of the MSA in the amount of $388,171.87, plus interest thereon. Additionally,

15 there are two more invoices which Twitter has failed to pay but will not be past the sixtieth day

16 from invoicing until approximately one week after the filing of this Complaint; those two invoices

17 are in the sum of $4,067.24. Accordingly, Canary’s total damages requested for Twitter’s breach

18 of the MSA is the amount of $392,239.11.

19 WHEREFORE, Canary prays for judgment as set forth below.

20 SECOND CAUSE OF ACTION

21 (Account Stated)
22 14. Canary repleads, realleges, and incorporates by reference the allegations of

23 Paragraphs 1 through 8, inclusive, as though set forth herein in full.

24 15. On November 14, 2022, an account was stated in writing as between Canary and

25 Twitter for the sums due and owing from Twitter to Canary. As stated in that writing, the total

26 amount owed by Twitter to Canary was $392,239.11.

27 16. Subsequent to November 22, 2022, Defendant Twitter has not made any payments

28 to Canary.

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 1 17. As a result of Twitter’s default on the account, Canary has been required to retain

2 the services of the law firm of Brothers Smith LLP, and has incurred and continues to incur

3 attorneys’ fees, costs, and expenses in an amount according to proof.

4 WHEREFORE, Canary prays for judgment as set forth below.

5 THIRD CAUSE OF ACTION

6 (Declaratory Relief)
7 18. Canary repleads, realleges, and incorporates by reference the allegations of
8 Paragraphs 1 through 8, inclusive, as though set forth herein in full.

9 19. An actual controversy has arisen and now exists between the parties about their

10 respective rights and obligations under the MSA in that Canary interprets the requirements of the

11 agreement to require Twitter to pay all Canary invoices within sixty (60) days of receipt, including

12 the invoices delivered to Twitter in September, October, and November 2022; on information and
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13 belief, Twitter appears to interpret the MSA as allowing it to pay or not pay Canary invoices when
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14 Twitter decides to do so.

15 20. Canary desires a judicial declaration of its rights and/or duties with respect to

16 Defendants, and specifically requests a judicial declaration that Defendants are obligated to pay

17 Canary on the agreed-upon terms of the MSA.

18 21. A judicial declaration is necessary and proper at this time under the circumstances
19 now existing. A determination on the parties’ controversy is essential to guide Canary and

20 Defendants in connection with their past, current, and future alleged rights and duties, to afford a

21 ready and efficient resolution of the controversy, and to prevent financial and other harm

22 threatened to Canary and its rights under the MSA.

23 WHEREFORE, Canary prays for judgment as set forth below.

24 PRAYER FOR RELIEF

25 WHEREFORE, Canary prays for judgment against Defendant Twitter as follows:

26 ON THE FIRST CAUSE OF ACTION:

27 1. For judgment against Defendants for breach of the MSA in the amount of

28 $392,239.11;

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 1 2. For prejudgment interest on the damages suffered.

2 ON THE SECOND CAUSE OF ACTION:

3 1. For monetary damages in the amount of the account stated of $392,239.11;

4 2. For prejudgment interest on the amount stated.

5 ON THE THIRD CAUSE OF ACTION:

6 1. For a judicial declaration that Twitter is required to pay Canary’s invoices within

7 sixty (60) days of receipt of the same, including the invoices that Twitter received in September,

8 October, and November 2022.

9 ON ALL CAUSES OF ACTION:

10 1. For attorneys’ fees and costs as allowed by law;

11 2. For all other relief allowed by law.

12
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13 Dated: January 6, 2023 BROTHERS SMITH LLP

W A LNU T C RE E K , CA
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14

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By:
16 Mark V. Isola
Attorneys for CANARY, LLC DBA CANARY
17 MARKETING
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