Sep 15, 2014



Wednesday, September 10, 2014, 3:00 p.m.

Courtroom 16 – Judge Elliot Lee Daum

3035 Cleveland Avenue, Suite 200, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.


The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, September 9, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement

1. MCV-203026; Beneficial California v. Ius

Appearance required. [claim of exemption]



2. MCV-216740; Target National Bank v. Johnson

Motion for entry of judgment is granted.  Judgment is entered for $1,338.22.



3. MCV-228506; GE Capital v. Fitzgerald

The motion for leave to file a cross-complaint is denied with prejudice.  (Motion filed beyond applicable statute of limitations.)



4. MSC-184176; Hays v. Varrelman

Appearance required.



5. MSC-184187; Gibney v. SBI Landscape

Appearance required.



6. MSC-184204; Parra v. Credit Cars

Appearance required.



7. SCV-252816; Wheeler v. Chaney

The unopposed Motion for Summary Judgement and Adjudication of issues is granted.



8. SCV-254684; GC Micro Corp v. Brown

The Buisiness and Professions Code Section 17200 Claim

Defendants cannot establish standing under §17200 based on speculative claims of alleged lost business opportunities. See Schwartz v. Provident Life & Accident Ins.Co., (2013) 216 Cal.App.4th 607, 611-13 (claimed injury “insufficient to confer standing” in §17200 case where Plaintiff surmised decreased value in insurance policy in “purely speculative” fashion.) Given Defendant’s inability to satisfy the threshold standing requirement under §17200, summary adjudication of Defendant’s First Cause of Action in their Cross-Complaint is properly granted.


Tortious Interference

It is undisputed that GC Micro had no knowledge of the employment relationships that it is accused of disrupting at the relevant time. This is because the Individual Defendants lied to GC Micro to conceal their competing employment with Trivad.  Defendant Brown, who left GC Micro on June 25, 2013, admitted that he concealed the fact that he was going to work for Trivad from GC Micro for weeks and instead “made up the whole story” about going into the medical device field or pharmaceutical field”—complete with embellishments about working alongside his brother and sister-in-law.  Brown Depo at 158:11-159:2 (Leibnitz Dec. Ex. 1.) see id. at 160:18-19 (“I basically lied to everyone in the company”).  (Similar testimony from other Individual Defendants).


Defendant’s second cause of action also fails because they cannot meet their burden of proving they suffered any economic harm proximately caused by any alleged actionable wrongful conduct of GC Micro.  “The law precludes recovery for overly speculative expectancies by initially requiring proof the business relationship contained the probability of future economic benefit to the Plaintiff.” Westside Ctr. Assocs. v. Safeway Stores 23, Inc., (1996) 42 Cal.App.4th 507, 522 (citations and emphasis omitted.)


Defendants have admitted that they cannot identify any business opportunities lost due to the alleged short forbearances by Brown and Kwong from soliciting GC Micro’s customers.


            Q. So it’s accurate that you can’t identify any specific business opportunity that Trivad could have obtained during this period that any of the individual  defendants in the case allegedly refrained from contacting former GC Micro contacts and customers until they had stopped refraining?


            A. Right.  Again, I mean, we wouldn’t have known what opportunities we—you know, what business we would have been missing out on if we were refraining from talking to—like we weren’t talking to ‘em during that time period, so we wouldn’t have known.


Brown Depo at 206:14-25.


Because Defendants cannot identify any lost business opportunities of either Defendant Kwong or Brown’s alleged restraint, they can prove no proximately-caused damages, and summary judgment is granted as to that cause of action.             


Third Cause of Action for Declaratory Relief

There is no persuasive reason for the Court to exercise its discretion to adjudicate the enforceability of the three contractual provisions challenged by the Individual Defendants in their Trade Secrets Agreements.  Here, there is no present dispute or controversy as to any of the three challenged provisions.  Regarding the non-solicitation-of-customers clause of Paragraph 4, GC Micro has not asserted any claim against the Individual Defendants for breach of that provision, nor will it do so.  Guadarrama Decl., ¶11.  Moreover, Paragraph 4 is limited to a one-year period following the employee’s termination, and that period will have expired as to Defendants Kwong and Brown by the date of the hearing on this motion, and be near expiration for Defendant Smith.


For the foregoing reasons, the Court grants summary judgment in favor of GC Micro on the entirety of Defendants’ Cross-Complaint. 


Summary Adjudication of Defendant’s Affirmative Defenses

In its Answer of December 24, 2-13, Trivad alleged nine affirmative defenses, each in the  conclusory fashion: a series of one-sentence averments that merely restate the name of the affirmative defense.  See Leibnitz Decl., Ex. 2 (“1. Plaintiff’s Complaint fails to state a cause of action upon which relief can be granted.  2. Plaintiff’s cause of action for misappropriation of trade secrets is barred because it has failed to describe its alleged trade secrets with reasonable particularity.  3. Plaintiff’s unclean hands and inequitable conduct bar the Complaint and each purported cause of action alleged therein…. The Individual Defendants alleged nine of the same affirmative defenses in the same manner, and added three more. Id. Exs. 3-5 (including Affirmative Defense No. 10, alleged unenforceability under Business & Professions Code §16600.)  (void contracts)


Defendant’s CCP §2019.210 Contention

The provision does nothing more than impose a disclosure requirement to provide notice to the Defendant of the nature of the trade secret claims being asserted before the Plaintiff may obtain discovery on the trade secret claim.  See Id., at 150.  (“The statute simply imposes a precondition to discovery.”);  CCP §2019.210 (“before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity”)  Defendants’ contention that they can assert an affirmative defense by claiming that GC Micro’s §2019 disclosure was inadequate is not supported by the statute. Brescia, supra 172 Cal.App.4th at 151 n.2.


Moreover, it is undisputed here that the Defendants have previously stipulated to the sufficiency of GC Micro’s Amended Identification of Trade Secrets Pursuant to CCP §2019.210 served on February 13, 2014 and this was confirmed as part of the Court’s April 16 Order:


Defendants shall withdraw and not assert any further objections to any discovery sought by GC Micro based on the assertion that GC Micro’s Amended Identification of Trade Secrets Pursuant to CCP §2019, served on February 13, 2014, failed to meet the requirements of Section 2019.210 and agree not to seek or move for any further amendment or modification to GC Micro’s Amended Identification of Trade Secrets based on the requirements of CCP §2019.210.


Leibnitz Decl., Ex. 15.  So, even if there were an affirmative defense based on §2019.210, there would be no triable issue of fact built.


Because the Individual Defendants left GC Micro to work for a competitor in California, GC Micro never sought to assert any claim for breach of Paragraph 4.  Even assuming the covenants in Paragraph 4 were unenforceable against the Individual Defendants under Business and Professions Section 16600, this does not invalidate the other covenants in the Trade Secrets Agreements, much less the entirety of those agreements.  See CC §1559 (“Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”)  Section 16600 is by its terms limited to rendering void specific restrictive covenants found to be an improper restraint—not the entire contract.  See Section 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void”) Moreover, the agreements the Individual Defendants entered into with GC Micro expressly provide for the severability of covenants, such that any finding of unenforceability as to one covenant has no impact on any other covenants.  See Didaleusky Decl., Ex. 1 at 2 ¶7 (“if any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions nevertheless continue in full force and effect without being impaired or invalidated in any way”).  Defendants’ attempts to avoid enforcement of their agreements based on the existence of covenants not asserted in this case simply has no merit.  Keene v. Harling, (1964) 61 Cal.2d 318; Baeza v. Superior Court (2012) 201 Cal.App.4th 1214, 1230  (“California takes a very liberal view of severability”).


Summary Adjudication of the Individual Defendants’ Affirmative Defenses, and Trivad’s Affirmative Defenses is granted.



The Plaintiff’s Motion for Monetary Sanction is granted. The court denies Plaintiff’s requests for harsher sanctions, i.e., striking, terminating or excluding evidence.  Plaintiff’s counsel shall file a further motion to assist the court in determining amounts to be awarded as sanctions.



9. SCV-254776; ProTransport-1 v. Stinger Electornics

The motion for leave to file a cross-complaint is granted pursuant to CCP section 426.50 on the grounds that the proposed cross-complaint for indemnity and contribution arises out of the same transaction as the complaint, and due to the complex technological nature of the issues involved in this matter, Defendant only recently determined all the facts supporting the cross-complaint. Allowing the cross-complaint would further the interest of justice, and will promote the efficient resolution of all claims between the parties.



10. SCV-255527; Thompson v. Lakewood

Appearance required.


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