Superior Court, State of California
DATE: Thursday, 07 October 2021
TIME: 9:00 A.M.
This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars.
CourtCall is also acceptable.
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All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.
PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.
This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.
In light of COVID-19-related health concerns and due to the Order of the Public Health Department, Department 20 has resumed Law & Motion calendars but with safe-distancing protocols. Please check this tentative rulings page before making any appearance.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
APPEARANCES.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d).
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)
As for matters which require personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Whether appearing in person or on a virtual platform, the usual custom and practices of decor and attire apply.
Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party
If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.
Court Reporters.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.
Protocols during the Hearings.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled. A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c).
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
Troubleshooting Tentative Rulings.
If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.
Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.
|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 |19CV358852 |LSI Corporation, a Delaware corporation v. Kiran |Demurrer to the Complaint by All Defendants. |
| | |Gunnum, Annapurna Yardalaga |Defendant Gunnam’s demurrer to the first and second causes of action |
| | | |in plaintiff LSI’s complaint is deemed MOOT. Defendant Yarlagadda’s |
| | | |demurrer to the third and fourth causes of action in plaintiff LSI’s |
| | | |complaint on the ground that the pleading does not state facts |
| | | |sufficient to constitute a cause of action [Code Civ. Proc., §430.10, |
| | | |subd. (e)] is OVERRULED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 2 |19CV358852 |LSI Corporation, a Delaware corporation v. Kiran |Motion of Defendants to Strike the Complaint Pursuant to Code Of Civil|
| | |Gunnum, Annapurna Yardalaga |Procedure, §425.16. |
| | | |Defendant Gunnam’s special motion to strike the first and second |
| | | |causes of action in plaintiff LSI’s complaint is GRANTED. Defendant |
| | | |Yarlagadda’s special motion to strike the third and fourth causes of |
| | | |action in plaintiff LSI’s complaint is DENIED. Plaintiff LSI’s request|
| | | |for attorney’s fees is DENIED. |
| | | |SEE LINE #1 FOR THE TENTATIVE RULING. |
|LINE 3 |19CV356117 |Syed Ali v. Apple, Inc. |Motion of Plaintiff to Compel Defendant to Provide Further Responses |
| | | |for Request for Production, Set 3, Nos 23-31. |
| | | |The motion of plaintiff to compel further responses to his request for|
| | | |production of documents, set three, is GRANTED and DENIED as follows: |
| | | |Apple will be ordered to produce further code compliant responses and |
| | | |documents to the requests for the three job positions in question. The|
| | | |relevant time period will be from November 201 2018 when Mr. Ali |
| | | |applied until the filing of his complaint on 4 October 2019. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 4 |20CV372413 |Vasili Stratton v. Katherine Stratton, Mary Helen |Hearing to Determine Valuation. |
| | |Stratton, Willow Glen Real Estate, LLC |The matter appears to have been resolved on the Stipulation regarding |
| | | |Appraisals for Statutory Buyout Raised in Plaintiff’s Ex Parte |
| | | |Application and Papers Filed in Advance of 7 October 2021 hearing. |
| | | |Good cause appearing, IT IS ORDERED that the matter be CONTINUED to 23|
| | | |November 2021 at 9:00 AM in this Department. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 5 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 6 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 7 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 8 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 10 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |
| | | |SEE ATTACHED TENTATIVE RULING. |
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Calendar Line 1
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |19CV358852 |LSI Corporation v. Kiran Kumar Gunnam, et al. |
|DATE: 7 October 2021 |TIME: 9:00 am |LINE NUMBER: 1 – 2 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 06 October 2021. Please specify|
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Orders on Motions of All Defendants: |
|1. Special Motion to Strike Complaint Pursuant to Code of Civil Procedure, § 425.16; and |
|2. Demurrer to Complaint. |
I. Statement of Facts.
In or around 21 January 2008, defendant Kiran Kumar Gunnam (“Gunnam”) commenced employment with plaintiff LSI Corporation (“LSI”). (Complaint, ¶9.) At the same time, defendant Gunnam executed an Employee Invention and Confidential Information Agreement (“EICI Agreement”). (Complaint, ¶10.)
During the course of his employment, defendant Gunnam had access to a document management system maintained by plaintiff LSI to store documents (“TWiki Server”). (Complaint, ¶14.) The TWiki Server stored documents that were within the scope of defendant Gunnam’s employment as well as documents unrelated to defendant Gunnam’s employment. (Complaint, ¶15.) Defendant Gunnam was able to access the documents on the TWiki Server via a unique user ID that was specific to him. (Complaint, ¶16.)
During his employment, defendant Gunnam routinely accessed, viewed, modified, downloaded, and uploaded documents on the TWiki Server. (Complaint, ¶17.) For example, on or around 19 June 2010 and numerous other times, defendant Gunnam uploaded a document to the TWiki Server entitled, “McLarenClientServerDesignGuide_2009_09_16.doc” (“McLaren Design Guide”). (Id.)
In early March 2011, defendant Gunnam gave notice of his intent to resign his employment effective 18 March 2011. (Complaint, ¶18.) Also in March 2011, defendant Gunnam accessed the TWiki Server to view technical documents related to plaintiff LSI’s McLaren and Spyder architectures and technical features contained therein. (Complaint, ¶19.)
When defendant Gunnam accessed the TWiki Server in the last few months of his employment with plaintiff LSI, defendant Gunnam downloaded plaintiff LSI confidential material from the TWiki Server and retained that material following the conclusion of his employment in violation of the EICI Agreement. (Complaint, ¶20.) Despite being bound by the EICI Agreement during and after his employment with plaintiff LSI, defendant Gunnam breached his obligations under the EICI Agreement. (Complaint, ¶22.)
Defendant Annapurna Yarlagadda (“Yarlagadda”) is defendant Gunnam’s wife. (Complaint, ¶¶3 and 24.) Defendant Yarlagadda is the Chief Executive Officer, Chief Financial Officer, and Secretary of TexasLDPC Inc. (“TexasLDPC”). (Complaint, ¶24.) On 12 December 2018, TexasLDPC filed a complaint against Broadcom Inc. in the United States District Court for the District of Delaware (“Delaware Action”). (Complaint, ¶23.) TexasLDPC’s complaint and a subsequent amended complaint disclosed and relied upon plaintiff LSI’s confidential and proprietary information. (Complaint, ¶25.)
TexasLDPC’s complaints also included a link to confidential and proprietary LSI internal presentations and related documents published without plaintiff LSI’s permission on . (Complaint, ¶¶26 – 27 and 31 – 32.) The confidential and proprietary information used and disclosed in the TexasLDPC complaints include documents that defendant Gunnam authored or to which he otherwise had access to during his employment with plaintiff LSI. (Complaint, ¶29.) For example, the McLaren Design Guide was included among the LSI confidential documents posted without authorization or approval on . (Complaint, ¶30.) Confidential and proprietary information included in the McLaren Design Guide is relied on in TexasLDPC’s complaints. (Id.)
Upon information and belief, the confidential and proprietary information used and disclosed in TexasLDPC’s complaints and on was retained and/or disclosed by defendant Gunnam in breach of his obligations under the EICI Agreement. (Complaint, ¶33.) Upon information and belief, the confidential and proprietary information used and disclosed in TexasLDPC’s complaints and on was provided directly or indirectly by defendant Gunnam to defendant Yarlagadda, TexasLDPC, Scribd, Inc., and others in breach of their obligations under the EICI Agreement and similar agreements. (Complaint, ¶34.)
Defendant Gunnam should not have provided this information to any other person without plaintiff LSI’s authorization. (Id.) Defendant Yarlagadda knew of defendant Gunnam’s agreements to protect plaintiff LSI’s confidential and proprietary information from unauthorized use and disclosure. (Complaint, ¶36.) Defendants Yarlagadda and Gunnam have a financial interest in TexasLDPC and seek to profit from their wrongful and unauthorized actions. (Complaint, ¶37.)
On 18 November 2019[1], plaintiff LSI filed a complaint against defendant Gunnam and Yarlagadda asserting causes of action for:
1) Breach of Contract [versus Gunnam]
2) Breach of Covenant of Good Faith and Fair Dealing [against Gunnam]
3) Intentional Interference with Contract [against Yarlagadda]
4) Inducement to Breach Contract [against Yarlagadda]
On 23 January 2020, defendants Gunnam and Yarlagadda filed the two motions now before the court, a demurrer to plaintiff LSI’s complaint and a special motion to strike plaintiff LSI’s complaint pursuant to Code of Civil Procedure section 425.16.
II. Code of Civil Procedure, § 425.16 and Demurrers in General.
A. The Two-Step Procedure for Anti-SLAPP Motions.
Code of Civil Procedure section 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue.
If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
More recently, the California Supreme Court clarified:
“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.[2] If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.”
(Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)
A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
(Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (Siam).)
“In applying section 425.16, subdivision (b)(1), the mode of proceeding and the applicable analysis at the often-elusive first step have been worked out in some detail in the case law. ‘[T]he court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) ‘To determine whether a cause of action arises from protected activity, we disregard its label and instead examine its gravamen “by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim.’” [Citation], i.e., “‘the acts on which liability is based,’” …’[citations]; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati) [‘the statutory phrase “cause of action … arising from” means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech’”].)
“‘A claim arises from protected activity when that activity underlies or forms the basis for the claim.’ (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) ‘Critically, “the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.] [T]he focus is on determining what “the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.”’ (Id. at p. 1063.) ‘If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.’ (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272; see City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767 (Singletary) [‘the question is whether the protected activity is merely an incidental part of the cause of action’].)
(Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 752-753; italics original.)
B. Demurrers.
A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[3]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)
Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”
Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)
A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[4])
“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.[5] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)
Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.
A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
III. Analysis.
Part 1: The anti-SLAPP Motion.
A. Breach of Contract.
Defendant Gunnam contends the first cause of action for breach of contract (EICI Agreement) arises from activity protected under Code of Civil Procedure section 425.16, subdivision (e)(1), written statement or writing made before a judicial proceeding, or subdivision (e)(2), written statement or writing made in connection with an issue under consideration or review by a judicial body.[6]
Defendant Gunnam directs the court’s attention to paragraphs 23 – 38 of the Complaint. In short, those paragraphs allege TexasLDPC, a company in which defendant Gunnam’s wife (defendant Yarlagadda) serves multiple officer roles and of which defendants Gunnam and Yarlagadda have a financial interest, filed the Delaware Action alleging patent and copyright infringement[7] which relies upon plaintiff LSI’s proprietary information. Plaintiff LSI alleges defendant Gunnam improperly (in breach of his obligations under the EICI Agreement) retained LSI’s proprietary information and thereafter directly or indirectly provided/ disclosed LSI’s proprietary information to Yarlagadda, TexasLDPC, on a public website (), and to others such that LSI’s proprietary information could be used as the basis for the Delaware Action.
Defendant Gunnam cites Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 where the court wrote:
Under Code of Civil Procedure section 425.16 “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech … shall be subject to a special motion to strike. …” (Code of Civil Procedure, § 425.16, subd. (b)(1).) “A cause of action ‘arising from’ defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) “Any act” includes communicative conduct such as the filing, funding, and prosecution of a civil action. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17–19.)
(Emphasis added. See also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115—“[t]he constitutional right to petition … includes the basic act of filing litigation.”)
Here, however, defendant Gunnam is not alleged to have filed the Delaware Action. Instead, plaintiff LSI alleges defendant Gunnam disclosed LSI’s proprietary information in advance of the filing of the Delaware Action, thereby providing TexasLDPC with evidence needed to support the Delaware Action.
Section 425.16, subdivision (e) identifies the categories of conduct that are protected under the statute. That conduct includes a “written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).)
Although this description can be read to refer to pending litigation, our Supreme Court has explained that communications that are “‘preparatory to or in anticipation of the bringing of an action or other official proceeding’” are within the scope of protected conduct under Code of Civil Procedure section 425.16 just as they are within the protection of the litigation privilege under Civil Code section 47, subdivision (b). (Briggs, supra, 19 Cal.4th at p. 1115; see Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.)
Such conduct “preparatory to” litigation can include communications in connection with counseling or encouraging others to sue. For example, in Briggs, the defendant—a nonprofit corporation that counseled tenants and mediated landlord-tenant disputes—counseled a tenant concerning a malfunctioning refrigerator, leading to a successful small claims action by the tenant against her landlord. (Briggs, supra, 19 Cal.4th at pp. 1109–1110.) The court held that the defendant's counseling of the tenant was “in anticipation of litigation” and was therefore protected conduct under section 425.16. (Briggs, at p. 1115.) The court noted that “the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public).” (Id. at p. 1116; see Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 18 (Ludwig) [instigating lawsuits by others was protected conduct under § 425.16].)
(Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 940 (Bel Air); emphasis added.)
In Bel Air, the plaintiff was a provider of DirecTV service. Defendants worked for plaintiff as field installers. Until 1 June 2015, plaintiff paid defendants and other installers as “exempt” employees. On 1 June 2015, a manager held a meeting informing employees that, going forward, they would be paid overtime for hours worked in excess of eight hours a day and 40 hours a week and would be entitled to rest breaks and meal periods. Employees were presented with a “General Release” which expressly released claims against plaintiff relating to plaintiff’s classification of employees as exempt rather than non-exempt. Defendants refused to sign the General Release. According to plaintiff, defendants voluntarily left their jobs and encouraged other installers to leave plaintiff’s employ and to pursue employment-related lawsuits against plaintiff. Plaintiff filed a complaint against defendants asserting, among others, claims for intentional interference with contractual relations, breach of contract, and breach of implied covenant of good faith and fair dealing. The trial court denied defendants’ special motion to strike. On appeal, the Bel Air court reversed. In relevant part, the Bel Air court explained:
Under section 425.16, protected conduct includes “any written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body.” (§ 425.16, subd. (e)(2), italics added.) A statement has a sufficient “connection” with anticipated litigation if the person making the statement is engaged in a serious effort to encourage or counsel litigation by another.
This conclusion is consistent with our Supreme Court's decisions holding that counseling or encouraging litigation by others is privileged and protected. As discussed above, the court has explained that a person's prelitigation communications may be “in furtherance of the person's right of petition” even if the communications were made on behalf of another.
…
A person who counsels litigation by another exercises his or her own constitutional right to petition the government.
(Bel Air, supra, 20 Cal.App.5th at pp. 943 – 944.)
In opposition, plaintiff LSI contends the decision of Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384 (Pebble) is directly on point and compels the denial of defendants’ special motion to strike. In Pebble, a nonprofit environmental organization (Coalition) opposed the development of an open-pit mine in Alaska and hired a professional fundraiser to raise money for a political campaign to block the mine’s development. When the political campaign failed, Coalition terminated its contract with the professional fundraiser and a dispute arose with the fundraiser asserting Coalition failed to pay all amounts due. The fundraiser contacted the attorneys who represented the mine developers with the intent of selling Coalition’s confidential campaign communications and using those funds to sue the Coalition for non-payment. The fundraiser gave the mine developers’ attorneys copies of Coalition’s confidential information in exchange for $50,000. The mine developers’ attorneys used the confidential information to file a complaint with the Alaska Public Offices Commission (APOC) alleging Coalition and others violated Alaska election law. The APOC complaint was ultimately settled with no finding of liability against Coalition but allowed the mine developers to achieve their aim of undermining Coalition’s funding. Coalition then sued the fundraiser and sued the mine developers and their attorneys. As against the mine developers/attorneys, Coalition asserted two causes of action: interference with contract and interference with prospective economic advantage. The trial court granted mine developers/attorneys’ special motion to strike, but the appellate court reversed.
Thus, the trial court erroneously focused on the Coalition's damages allegations, i.e., that the Coalition was forced to defend itself in the APOC proceeding. Instead, the proper focus should have been on the “allegedly wrongful and injury-producing conduct” (Castleman, supra, 216 Cal.App.4th at p. 490) which gave rise to the Coalition's damages.
Simply stated, to determine the applicability of the anti-SLAPP statute, we look to the allegedly wrongful and injurious conduct of the defendant, rather than the damage which flows from said conduct. Here, the gravamen of the Coalition's action was that the Pebble defendants allegedly wrongfully purchased the Coalition's confidential documents from Kaplan for the sum of $50,000. Said purchase was not an act by the Pebble defendants in furtherance of their right of petition or free speech, making the anti-SLAPP procedure inapplicable.
…
Although the Pebble defendants rely on their bringing the APOC complaint as protected activity for SLAPP purposes, the Coalition did not sue the Pebble defendants for having prosecuted the APOC complaint. Rather, as discussed, the pleadings establish the gravamen of the Coalition's claim against the Pebble defendants is that they induced Kaplan to sell them the Coalition's confidential documents for $50,000.
(Pebble, supra, 218 Cal.App.4th 384, 396-397.)
As between defendants’ reliance on Bel Air and plaintiff LSI’s reliance on Pebble, the court finds Bel Air to be more comparable and compelling. Just as in Bel Air, defendant Gunnam categorically denies the allegation that he retained and disclosed LSI’s proprietary information.[8] However, as the court in Bel Air held, “if the complaint itself alleges acts included within section 425.16, subdivision (e), there is no reason to go beyond the scope of those allegations to determine whether a plaintiff's claims arise from protected conduct.” (Bel Air, supra, 20 Cal.App.5th at p. 937.) In reading the complaint here (supplemented by plaintiff’s own description of the factual basis for its claim in its opposition and declarations[9]), LSI’s first cause of action insinuates defendant Gunnam disclosed LSI’s proprietary information so that defendant Gunnam (through his ownership of/ financial stake in TexasLDPC) could use that proprietary information to sue LSI for patent infringement. Defendant Gunnam’s conduct is intentionally surreptitious so as to avoid liability for breach of his obligations under the EICI Agreement. Hence, the allegations are that defendant Gunnam caused LSI’s proprietary information to be published in a public forum, in effect leaving evidence of LSI’s misconduct (patent infringement) for the patent owner (TexasLDPC) to find and use to prosecute LSI, while hiding his own involvement in making that evidence available. Thus, the very act that gives rise to a breach of the EICI Agreement (defendant Gunnam’s disclosure of LSI’s proprietary/ confidential information) is the same act that serves to prepare evidence for/ encourage/ counsel litigation by another (TexasLDPC). It is this court’s finding that the allegations in first cause of action arise from protected activity.
If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” (Id. at p. 714.) [Footnote omitted.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820 (Oasis).) “[C]laims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94 (Navellier).)
(Baral, supra, 1 Cal.5th at pp. 384–385.)
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.) In opposition, plaintiff LSI focuses on evidence of defendant Gunnam’s breach of the EICI Agreement. However, the court’s analysis on the second step is made simple by the fact that plaintiff LSI has not submitted any admissible evidence[10] of resulting damage. Plaintiff has not met its burden of demonstrating a probability of prevailing.
In opposition, plaintiff LSI cites the following language from Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis):
If the plaintiff “can show a probability of prevailing on any part of its claim, the cause of action is not meritless” and will not be stricken; “once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106, original italics.)
Looking more carefully at Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 (Mann), this court observes that the statement is somewhat taken out of context. A more complete citation to Mann reveals the Mann decision (which predates and is overruled by Baral) was speaking to the issue of whether a cause of action that alleges both protected and unprotected activity can survive.
Where a cause of action refers to both protected and unprotected activity and a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure.
Stated differently, the anti-SLAPP procedure may not be used like a motion to strike under section 436, eliminating those parts of a cause of action that a plaintiff cannot substantiate. Rather, once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it has determined have merit.
(Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.)
Thus, the court does not read Oasis to suggest that the second step on a special motion to strike (probability of prevailing) is satisfied by a plaintiff who simply submits evidence on some, but not all, of the prima facie elements for the particular cause of action. As applicable here, plaintiff LSI has not demonstrated a probability of prevailing on a claim for breach of contract in the absence of some evidence of resulting damage.
Accordingly, defendant Gunnam’s special motion to strike the first cause of action in plaintiff LSI’s complaint is GRANTED.
B. Breach of Implied Covenant of Good Faith and Fair Dealing.
In the second cause of action, plaintiff LSI alleges, in relevant part, “Defendant Gunnam entered into the EICI Agreement with LSI. … The agreement[] obligated Gunnam … to protect LSI’s confidential and proprietary information from unauthorized use and/or disclosure. Defendant Gunnam … breached [his] obligations under the agreement[] by using and/or disclosing, and/or causing others to use and/or disclose, LSI’s confidential and proprietary information without LSI’s authorization. This conduct was prohibited pursuant to the agreements.” (Complaint, ¶¶45 – 46.)
Although entitled a breach of implied covenant, these allegations allege breach of an express obligation. In any case, this alleged breach of implied covenant is identical to the breach of contract alleged in the first cause of action and rely upon the same allegations of protected activity.[11] For the same reasons discussed above, defendant Gunnam’s special motion to strike the second cause of action in plaintiff LSI’s complaint is GRANTED.
C. Intentional Interference with Contract and Inducement to Breach Contract.
The third and fourth causes of action are directed at defendant Yarlagadda and allege, in relevant part, that Yarlagadda knew Gunnam entered into the EICI Agreement and that other Doe defendants entered into similar agreements and that Yarlagadda “engaged in actions (a) designed to induce a breach of disruption of the EICI Agreement between LSI and Defendant Gunnam and the same or similar agreements between [Doe defendants] and LSI … and/or (b) with knowledge that it was substantially certain that a breach or disruption of the EICI agreement … and same or similar agreements … would result from such actions.” (Complaint, ¶¶51 – 52.) Yarlagadda “intended to cause Defendant Gunnam [and others] to breach [their] obligations under the EICI Agreement … [and] same or similar agreements.” (Complaint, ¶58.)
As to defendant Yarlagadda, the wrongful and injury producing conduct (i.e., the act on which liability is based) is different from the conduct on which defendant Gunnam’s liability is based. Yet, defendant Yarlagadda piggybacks off the argument by her husband, defendant Gunnam, to improperly assert that her protected activity is also the wrongful disclosure of LSI’s proprietary information and to improperly assert that “the activity that gives rise to Defendants’ asserted liability is the decision to both speak about and use public LSI documents in the Delaware Action against LSI.”[12]
As to defendant Yarlagadda, the court views her conduct to be more akin to the defendants in Pebble where the court found the injury producing conduct to be the defendants’ wrongful purchase of confidential documents, an act which did not involve the furtherance of a right to petition or right to free speech. Similarly here, defendant Yarlagadda’s allegedly injury producing conduct is inducing her husband or others to breach the EICI Agreement or similar agreements. Defendant Yarlagadda’s impropriety is not dependent upon the content of what was disclosed and LSI is not suing defendant Yarlagadda for instituting the Delaware Action. Instead, the focus is on defendant Yarlagadda inducing her husband and others to breach their confidentiality agreements which is not protected activity.
Accordingly, defendant Yarlagadda’s special motion to strike the third and fourth causes of action in plaintiff LSI’s complaint is DENIED.
C. Plaintiff’s Request for Attorney’s Fees.
A plaintiff is not entitled to recover attorney’s fees and costs unless the motion is found to be “frivolous or is solely intended to cause unnecessary delay.” (Code of Civil Procedure, § 425.16, subd. (c)(1).) If the court makes such a finding, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, “pursuant to section 128.5.” (Id.) Attorney fees can be assessed against a defendant only if the anti-SLAPP motion was “totally and completely without merit or for the sole purpose of harassing an opposing party.” (See Code of Civil Procedure, § 128.5, subd. (b)(2).) “A determination of frivolousness requires a finding the anti-SLAPP ‘motion is “totally and completely without merit” (§ 128.5, subd. (b)(2)), that is, “any reasonable attorney would agree such motion is totally devoid of merit.” [Citation.]’ (Decker, supra, at p. 1392, italics added.)” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.)
In opposition, plaintiff LSI asks for attorney’s fees on the ground that defendants Gunnam and Yarlagadda’s special motion to strike was frivolous. However, there is insufficient evidence to support the conclusion that defendants Gunnam and Yarlagadda’s special motion to strike was “totally and completely without merit” and that “any reasonable attorney would agree such motion is totally devoid of merit.”
Accordingly, plaintiff LSI’s request for attorney’s fees is DENIED.
Part 2: The Demurrers.
A. Breach of Contract/ Breach of Implied Covenant of Good Faith and Fair Dealing.
In light of the court’s ruling above, defendant Gunnam’s demurrer to the first and second causes of action in plaintiff LSI’s complaint is deemed MOOT.
B. Intentional Interference with Contract/ Inducing Breach of Contract.
“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) “[C]ases have pointed out that while the tort of inducing breach of contract requires proof of a breach, the cause of action for interference with contractual relations is distinct and requires only proof of interference.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129; citations omitted; see also CACI, No. 2200.)
In demurring, defendant Yarlagadda contends the third and fourth causes of action for intentional interference with contract and inducing breach of contract, respectively, are preempted by the California Uniform Trade Secrets Act (“CUTSA”). “CUTSA provides the exclusive civil remedy for conduct falling within its terms, so as to supersede other civil remedies ‘based upon misappropriation of a trade secret.’” (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 236 (Silvaco).)
Further, Civil Code “section 3426.7, subdivision (b), preempts common law claims that are ‘based on the same nucleus of facts as the misappropriation of trade secrets claim for relief.’” (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 958.) However, CUTSA does not preempt claims that are related to a trade secret misappropriation, but are “independent and based on facts distinct from the facts that support the misappropriation claim.” (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 499, 506.)
Civil Code, section 3426.1, subdivision (d) defines “Trade secret” to mean “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” “Whether information is a trade secret is ordinarily a question of fact.” (San Jose Const., Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1537; see also In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 306.)
Here, plaintiff LSI has made no allegations concerning the misappropriation of a trade secret. Defendant nevertheless contends preemption can be decided even without a determination of whether a trade secret is involved. Defendant Yarlagadda relies upon a federal trial court[13] decision in Gabriel Techs. Corp. v. Qualcomm Inc. (S.D.Cal. Sep. 3, 2009, No. 08cv1992-MMA(POR)) 2009 U.S.Dist.LEXIS 98379, at *35-36 (Gabriel) where the court wrote:
The Court first must address Plaintiffs' assertion that until it is determined whether allegedly misappropriated information constitutes a trade secret, the question of preemption cannot be addressed. The majority of cases hold that determining whether allegedly misappropriated information constitutes a trade secret is irrelevant for preemption purposes because CUTSA preempts all claims based upon the unauthorized use of information, even if the information does not meet the statutory definition of a trade secret. See, e.g., AirDefense, Inc. v. AirTight Networks, Inc., 2006 U.S. Dist. LEXIS 55364, 2006 WL 2092053, *3 (N.D. Cal. July 26, 2006) (agreeing with "multiple federal courts" that claims based on the same factual allegations as the claim for misappropriation of trade secrets are preempted and claims should be evaluated when ruling on a motion to dismiss). This Court finds no reason to depart from the majority viewpoint, and concludes that the preemption issue may be determined properly on Defendants' motion to dismiss.
Even so, the Gabriel decision is distinguishable in that the complaint did, in fact, allege misappropriation of trade secrets. As highlighted above, the claims sought to be preempted must be based on the same factual allegations as the claim for misappropriation. No such claim for misappropriation of trade secrets has been made here so the court is of the opinion that CUTSA preemption does not apply.
Alternatively, defendant Yarlagadda contends her publication and reliance on LSI’s proprietary information is subject to the litigation privilege. However, the fallacy in defendant Yarlagadda’s argument is that the third and fourth causes of action are based upon defendant Yarlagadda’s publication of LSI’s proprietary information. As plaintiff LSI points out in opposition, “The tort of inducing breach of a non-disclosure contract … is not based upon misappropriation of a trade secret. It is based on interference with the contract.” (Idx Sys. Corp. v. Epic Sys. Corp. (7th Cir. 2002) 285 F.3d 581, 586.) “Without exception, the privilege has applied only to torts arising from statements or publications.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 211.)
Accordingly, defendant Yarlagadda’s demurrer to the third and fourth causes of action in plaintiff LSI’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
No future dates are currently set. Should this matter proceed to a hearing, this Court will ask the status of the settlement discussions between the parties and whether formal ADR has commenced. Given the age of this matter, this Court is inclined to set the matter for a TSC on 5 April 2022 at 11:00 AM in this Department.
VI. Order.
Defendant Gunnam’s special motion to strike the first and second causes of action in plaintiff LSI’s complaint is GRANTED. Defendant Yarlagadda’s special motion to strike the third and fourth causes of action in plaintiff LSI’s complaint is DENIED. Plaintiff LSI’s request for attorney’s fees is DENIED.
Defendant Gunnam’s demurrer to the first and second causes of action in plaintiff LSI’s complaint is deemed MOOT. Defendant Yarlagadda’s demurrer to the third and fourth causes of action in plaintiff LSI’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES P. MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
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|DEPARTMENT 20 | |
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|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
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| |(For Clerk's Use Only) |
|CASE No.: |19CV356117 |Syed Ali v. Apple, Inc. |
|DATE: 07 October 2021 |TIME: 9:00 am |LINE NUMBER: 3 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 06 October 2021. Please specify|
|the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Plaintiff to Compel Defendant to Provide Further Responses |
|to Request for Production of Documents, Set 3. |
I. Statement of Facts.
This is an employment case. In April 2017, plaintiff Syed Nazim Ali (“Ali”) (self-represented) applied to 14 different open positions with defendant Apple Inc. (“Apple”). (First Amended Complaint [“FAC”] at ¶ 14.) Despite his qualifications, Apple did not offer employment to plaintiff Ali for any of the open positions. (Id.)
On 27 November 2018, plaintiff Ali applied for two more positions with Apple as a Security Assessor and Sr. Security Compliance Analyst. (Id. at ¶ 19.) In response, defendant Apple sent emails to plaintiff Ali acknowledging receipt of his job applications for these positions. (Id. at ¶ 20.) Despite his education, qualifications, and experience, plaintiff Ali did not receive any further contact from defendant Apple regarding these open positions. (Id. at ¶ 21.) Plaintiff Ali claims Apple discriminated and retaliated against him because of his race, age, and national origin. (Id. at ¶¶ 40, 42, 46, 47, 48, 55, 56, 57, 81, 82, 83.)
As a consequence, plaintiff Ali filed administrative complaints with the Equal Employment Opportunity Commission (“EEOC”) and California Department of Fair Employment and Housing for discrimination based on race, age, religion, and national origin and retaliation. (FAC at ¶ 8.) The EEOC thereafter issued a “Right to Sue” letter to plaintiff Ali with respect to his employment discrimination claims. (Id. at ¶ 10.)
On 4 October 2019, plaintiff Ali filed a complaint against Apple alleging causes of action for:
1) Race Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”);
2) Age Discrimination in Violation of the FEHA;
3) National Origin Discrimination in Violation of the FEHA;
4) Retaliation in Violation of the FEHA;
5) Failure to Prevent Discrimination; and
6) Retaliation in Violation of Public Policy.
On 8 November 2019, defendant Apple filed a demurrer to the complaint. The Court sustained the demurrer in its entirety with leave to amend.
On 13 February 2020, plaintiff Ali filed the operative FAC against Apple alleging causes of action for:
1) Race Discrimination in Violation of the FEHA;
2) Age Discrimination in Violation of the FEHA;
3) National Origin Discrimination in Violation of the FEHA;
4) Retaliation in Violation of the FEHA; and
5) Discrimination Based on Retaliation in Violation of Public Policy.
On 17 March 2020, Apple filed a demurrer to the First Amended Complaint. This Court sustained the demurrer and the only remaining cause of action in this matter is retaliation in violation of public policy.
However, Mr. Ali’s only remaining cause of action for retaliation is based on three positions at Apple to which he applied in November 2018. (See First Amended Complaint, ¶ 81.) These positions Are “Security Compliance Manager,” “Senior Security Compliance Analyst,” and “Security Assessor.”
II. Motion To Compel Further Responses to Document Requests
Plaintiff seeks an order from this Court compelling defendant to produce further documents to his third request for production of documents. Defendant has objected to every request.
III. Analysis.
A. “Meet & Confer.”
The purpose of a “Meet & Confer” requirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter. It also enables parties and counsel to avoid sanctions that are likely to be imposed if the matter comes before the court! (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016-1017.)
“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civil Procedure, § 2016.040.) Failing to make a "reasonable and good faith attempt" to resolve the issues informally before a motion to compel is filed constitutes a "misuse of the discovery process;" Monetary sanctions can be imposed against whichever party is guilty of such conduct . . . even if that party wins the motion to compel. (Code of Civil Procedure, § 2023.020.)
While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order. The Court has concerns when there does not appear to be any effort to resolve discovery issues without Court intervention. (See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)
In proper cases, monetary sanctions may be imposed against both counsel at the same time. (See Volkswagenwerk Aktiengesellschaft v. Superior Court (Golsch) (1981) 122 Cal.App.3d 326, 331-334: Because of personal dislike for each other, counsel failed to make any real effort to negotiate the disputed issues; the court could have refused to rule on the motion to compel because of moving party's counsel's failure to "meet and confer"; but in order to resolve the matter, it heard the motion, found both lawyers to have violated the requirement, and ordered each to pay $150.00 out of his own pocket to the other lawyer's client.)
In this matter, the “Meet & Confer” establishes that the parties don’t necessarily like each other. Unfortunately, Mr. Ali has stated that he was not required to explain why the requests were proper and appropriate. This Court believes that a proper “Meet & Confer” requires that parties engage in meaningful and substantive efforts to resolve legitimate disagreements. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437-1438.)
B. Discovery Responses in General.
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
In responding to discovery, the responding party is to make a good faith effort to determine if it is able to provide meaningful responses to the various discovery requests. This Court frowns upon a party’s “deliberate indifference to responsibility in discovery” and has “no time for such antics.” (See Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618.)
While a corporation or public agency may select the person who answers interrogatories in its behalf, it has a corresponding duty to obtain information from all sources under its control -- information which may not be personally known to the answering agent. (Gordon v. Superior Court (1984) 161 Cal.App.3d 157, 167-168.)
There is authority for the proposition that if documents requested from a party are maintained by a third party not a party to the lawsuit, the responding party has an obligation to obtain those documents if there is a contractual relationship between the responding party and the third party. (A. Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 189 (D. Cal. 2006)[14] (internal citations omitted and punctuation altered.[15]) A party can be compelled to produce records located in another state or country if they are shown to be under the party's control. (See Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810-811--Los Angeles partner in national accounting firm subpoenaed to produce records from partnership office in New York for trial in California.)
C. Responses to Requests for Production.
“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code of Civil Procedure, § 2031.)
A representation of an inability to comply with the particular demand shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. (Code of Civil Procedure, § 2031.230.) This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer in the possession, custody, or control of the responding party. (Id.) The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (Id.)
D. Objections to Discovery In General
A party objecting to the discovery has the burden to justify its objections. (See Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 98.) Objections must be tailored to each discovery requests. (Scottsdale Insurance Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275; Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901.) “To suffice as a valid objection such claim must be supported by some showing (or, as a minimum, some claim) that the requirement of a reply would be unjust or inequitable.” (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 218.)
The party asserting a privilege has the burden of proving the essential elements of the privilege. (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)
1. Relevance
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
“[Objections based on] irrelevancy and immateriality. . . . . cannot be used to deny discovery.” (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217; Wooldridge v. Mounts (1962) 199 Cal.App.2d 620, 628.)
2. Boilerplate Objections
“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure, § 2023.030(a), italics added.)
“Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. (In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809.)” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285.) (Internal punctuation modified, citation omitted.)
3. Vague and Ambiguous
A "vague and ambiguous” objection is invalid unless the question is wholly unintelligible and the question must be answered if the nature of the information sought is apparent. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783.)
A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code of Civil Procedure, § 2030.220.)
4. Overbroad and Burdensome
“In short, as Justice Murphy said for the court in Hickman v. Taylor, 329 U.S. 495, 507, ‘discovery, like all matters of procedure, has ultimate and necessary boundaries.’” (Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal.App.2d 12, 19.)
Code of Civil Procedure, § 2017.020(a) states: “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
When asserting undue burden in response to a motion to compel, the respondent has the burden of providing detailed evidence of how much work is required to answer the question. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418; Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County, supra.)
A discovery objection that interrogatory is burdensome must be sustained by evidence showing the quantum of work required. Limits on burdensome, expensive, or intrusive discovery need not be all or nothing. Where the objection is one of undue burden, trial courts should consider alternatives such as partial disclosure or a shifting of costs before settling on a complete denial of discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 540[16].)
A discovery request was held "oppressive" where uncontradicted declarations showed that response would require review of over 13,000 insurance claims files, requiring 5 claims adjusters working full time for 6 weeks each. (Mead Reinsurance Co. v. Superior Court (City of Laguna Beach) (1986) 188 Cal.App.3d 313, 318--involving document demand; see Weil & Brown, ¶8:1475.1]
E. Analysis.
As noted above, this Court was disappointed at the insufficient “Meet & Confer” which took place in this matter. This Court gave serious consideration to denying the motion outright for that reason.
But in an effort to move this case towards resolution, the Court has decided to downplay the lack of forthright discussion by plaintiff.
As noted above, Mr. Ali’s only remaining cause of action for retaliation is based on three positions at Apple to which he applied in November 2018. (See First Amended Complaint, ¶ 81.) These positions Are “Security Compliance Manager,” “Senior Security Compliance Analyst,” and “Security Assessor.”
Apple contends that any documents related to dates outside this time are wholly irrelevant to whether Apple retaliated against Ali for failing to hire him for those positions. Apple also contends that the requests call for irrelevant material since they have no bearing on whether Apple retaliated against Mr. Ali by failing to hire him for the three positions to which he actually applied.
While the records in question may not be admissible at trial, they may lead to admissible evidence.
The declaration of Mr. Boyer does not sufficiently support the raised objections.
This Court will therefore rule that Apple will be ordered to produce further code compliant responses and documents to the requests for the three job positions in question. The relevant time period will be from November 201 2018 when Mr. Ali applied until the filing of his complaint on 4 October 2019.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted. If any party wishes to challenge the tentative ruling, they may notify this Court by emailing their request for a hearing to department20@ and also notifying the opposing party.
V. Case Management.
The Trial Setting Conference currently set for 2 November 2021 at 11:00 AM in this Department will REMAIN AS SET. The parties are to meet and confer and agree upon a trial date 4 to 6 months after that date.
VI. Conclusion and Order.
The motion of plaintiff to compel further responses to his request for production of documents, set three, is GRANTED and DENIED as follows: Apple will be ordered to produce further code compliant responses and documents to the requests for the three job positions in question. The relevant time period will be from November 201 2018 when Mr. Ali applied until the filing of his complaint on 4 October 2019.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[2] In opposition, plaintiff LSI applies the wrong legal standard in looking to the gravamen of a cause of action to determine whether it arises from protected activity. (See Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772, fn. 19—“Because Baral has eliminated the mixed cause of action problem by redefining a cause of action for purposes of the anti-SLAPP statute, there is no point to ascertaining the gravamen of a mixed cause of action; the ‘particular alleged acts giving rise to a claim for relief’ are either protected or not. Although, as Baral pointed out, a court may need to determine whether factual allegations are incidental to a claim that arises from protected or unprotected activity, determining the gravamen has no place in anti-SLAPP analysis. (See Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1169.)” (Okorie, supra, 14 Cal.App.5th at p. 601, 222 Cal.Rptr.3d 475 (dis. opn. of Rothschild, J.), italics omitted.) We agree with the Court of Appeal in Sheley and Justice Rothschild's dissent in Okorie that Baral has eliminated the ‘gravamen’ analysis, and we therefore do not employ it here.”
[3] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)
[4] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)
[5] In this respect, defense counsel's citation of Coyme v. Krempels (1950) 36 Cal.2d 257 is not applicable because that case concerns itself with summary judgment motions and stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.
[6] Defendant Gunnam also asserts the claims against him arise from activity protected by Code of Civil Procedure section 425.16, subdivision (e)(4), any other conduct in furtherance of the exercise of the constitutional right of petition, but that subdivision requires that the right of petition be “in connection with a public issue or an issue of public interest.” Defendant Gunnam has not made any showing that the Delaware Action concerns a public issue or an issue of public interest.
[7] Defendants request judicial notice of the first amended complaint in the Delaware Action. The court may take judicial notice of the existence of court records, but not necessarily the truth of any matters asserted therein. (See Evid. Code, §452, subd. (d); People v. Woodell (1998) 17 Cal.4th 448, 455.) Accordingly, the request for judicial notice in support of special motion to strike pursuant to Code of Civ. Proc. § 425.16, exhibit 1, is GRANTED as to the existence, not necessarily the truth of any matters asserted therein. Defendants’ request for judicial notice in support of special motion to strike is otherwise DENIED as the court does not find the other requests to be necessary or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)
[8] See Exhibit 2 to the Declaration of Michael R. Headley in Support of Special Motion to Strike, etc. (Declaration of Kiran Gunnam at ¶¶2 – 6.)
[9] See Bel Air, supra, 20 Cal.App.5th at p. 936—“if the complaint itself shows that a claim arises from protected conduct (supplemented, if appropriate, with the plaintiff's description of the factual basis for its claim in its declarations), a moving party may rely on the plaintiff's allegations alone in making the showing necessary under prong one without submitting supporting evidence.”
[10] “To establish such a probability, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; emphasis added.)
[11] “[W]here breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327.)
[12] See page 11, lines 24 – 25 of the Memorandum of Points and Authorities in Support of Special Motion to Strike Complaint, etc.
[13] “A written trial court ruling has no precedential value.” (Santa Ana Hospital Med. Ctr. v. Belshe (1997) 56 Cal.App.4th 819, 831.)
[14] After explaining the extent of “possession, custody or control,” the court in Farber ordered the responding party to produce all documents which it actually possessed or had the legal right to obtain. The court further ordered the responding party to prepare sworn “declarations or affidavits detailing the nature of his ‘reasonable inquiry’ to locate responsive documents, and such declarations must address the inquiry he made on a request-by-request basis.” (Farber, 234 F.R.D. at 190.)
[15] Absent contrary precedent under state law, California courts have found federal decisions “persuasive” in interpreting similar provisions of the California Act. (See Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal.2d 355, 401; Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468; Vasquez v. California School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 42-43; Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2019) § 8:19, p. 8A-10.)
[16] “[T]rial courts issuing discovery orders and appellate courts reviewing those orders should do so with the prodiscovery policies of the statutory scheme firmly in mind. A trial court must be mindful of the Legislature's preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery. (Greyhound Corp. v. Superior Court [(1961) 56 Cal.2d 56 Cal. 2d 355] at p. 383.)” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
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TENTATIVE RULING PROTOCOL
Law & Motion matters are heard every Tuesday and Thursday at 9:00 a.m. Tentative rulings will be accessible on after 2:00 p.m. on the court date preceding the scheduled hearing at:
https: /wvvw.online services/tentatives/tentative rulings_Dept20.shtml
Tentative rulings will become Orders of the Court unless contested. See California Rules of Court, rules 3.1308(a)(l) and 3.1312.
To arrange an appearance to contest a tentative ruling, notify the Court at (408) 808.6856 before 4:00 PM on the court dates before the hearing. You may make your notification to the Court by leaving a message when prompted to do so at the end of the recorded greeting. When you leave your message, state only the case number, case name, the name of the attorney, telephone number, and a brief statement as to the portion of the tentative ruling to which objection is taken. Messages should be brief and notify the portion of the ruling to which objection is taken. Please try to keep the message under 30 seconds.
You must also notify opposing counsel. You do not need to call or leave a message if you are not contesting the tentative ruling.
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