SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 2, Honorable Mark H. Pierce Presiding Mai Jansson, Courtroom Clerk

191 North First Street, San Jose, CA 95113

Telephone: 408-882-2120

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: 1-21-20 TIME: 9 A.M. PREVAILING PARTY SHALL PREPARE THE ORDER

(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR LAW AND MOTION HEARINGS.

SEE COURT WEBSITE FOR POLICY AND FORMS.

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LINE # CASE # CASE TITLE RULING

LINE 1 07cv090835 Legal Solutions Corporation vs J. Silverman

Order of Examination

LINE 2 19cv340517 A. Kline vs Saratoga Union School Distric

Click on line 2 for tentative ruling

LINE 3 19cv341467 McManis Faulkner, a Professional Corporation vs A. Corona

Off calendar

LINE 4 19cv352866 Apple Inc. vs G. Williams, III Click on line 4 for tentative ruling

LINE 5 19cv340742 L. Laehy vs K. Zoufan Off calendar

LINE 6 18cv337737 I. Kipnis vs H. Yeff Counsel/parties to appear

LINE 7 19cv345024 N. Daoud vs S. Bealey Defendant’s Motion to Compel arbitration is GRANTED. The claims is this matter arose out of FINRA related activities and Defendants are covered under the FINRA arbitration provisions. There has not been a waiver due the delay in moving to compel arbitration.

LINE 8 19cv347778 Interline Brands Inc. vs Atlantic Janitorial SVC and Supply

Motion for entry of Judgment is unopposed and is GRANTED.

LINE 9 19cv348607 V. Le vs K. Vuong Counsel to appear

LINE 10 19cv348607 V. Le vs K. Vuong See above

LINE 11 19cv348607 V. Le vs K. Vuong See above

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 2, Honorable Mark H. Pierce Presiding Mai Jansson, Courtroom Clerk

191 North First Street, San Jose, CA 95113

Telephone: 408-882-2120

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

LINE 12 19cv348607 V. Le vs K. Vuong See above

LINE 13 19cv348607 V. Le vs K. Vuong See above

LINE 14 19cv348607 V. Le vs K. Vuong See above

LINE 15 19cv348607 V. Le vs K. Vuong See above

LINE 16 19cv354039 E. Piper vs Legacy Capital Group California

Defendant’s Motion to compel arbitration is DENIED. Plaintiff is not party to an arbitration agreement with defendant Legacy. With regards to the Millineum agreement, Legacy is not mentioned, and there is nothing to suggest that it was to be an intended beneficiary of the agreement.

Calendar line 1

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Calendar line 2

Case Name: Andrea Kline, et al. v. Saratoga Union School District, et al. Case No.: 19CV340517

I. Background

In brief, plaintiffs Andrea and John Kline (collectively, “Parents”) allege defendant Saratoga Union School District (the “District”) and its staff mishandled their daughter’s complaint about bullying by another student at her middle school. They commenced this action against the District, Superintendent Nancy Johnson, Principal Barbara Neal, counselor Angela Deans, as well as the parents of the alleged bully. Currently before the Court is a motion for judgment on the pleadings by the District and its staff. As relevant here, Parents allege their daughter (“Minor”) was the target of significant bullying and harassment that culminated in the particular incident giving rise to her complaint against the perpetrating classmate (“Classmate”), and in turn, the claims in this action. (Compl., ¶¶ 10, 16–18.) According to the complaint in this action, Classmate deliberately cut Minor off and tripped her while they were running on a gravel track during their regularly-scheduled physical-education class. (Compl., ¶ 11.) Minor fell and sustained a severe laceration accompanied by tissue evulsion. (Compl., ¶ 11.) Minor went to the emergency room where physicians determined her injury required the intervention of a plastic surgeon.1 (Compl., ¶ 12.) The significant tissue loss from the laceration and subsequent plastic surgery required many sutures and significant aftercare. (Compl., ¶¶ 12–13.) Parents allege that when they and Minor finally spoke with the District’s staff, including Superintendent Johnson and Principal Neal, these defendants: made excuses for Classmate and minimized what had happened; inconsistently credited Minor’s characterization of Classmate’s conduct as deliberate while refusing to characterize the conduct as bullying; and failed to separate Minor and Classmate through rescheduling of shared classes (even temporarily for the duration of an investigation). (Compl., ¶¶ 19–23.) Parents and Minor claim that Superintendent Johnson then scheduled counseling sessions for Minor with school counselor Angela Deans (“Deans”) who disclosed her notes and conversations with Minor to Johnson and Neal. (Compl., ¶ 24.) The District and its staff purportedly used the counseling sessions as a means of collecting evidence and then used the information collected under the guise of providing emotional support to confront Minor in a hurtful way as well as to shame and discredit her. (Compl., ¶ 25.)

1 A claim for medical negligence is simply a negligence claim for which the skill and training of the defendant “serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) Denominating a claim as “medical negligence” does not “distinguish a claim separate and independent from some other form of negligence.” (Ibid.) Parents and Minor suggest in their pleading that Minor received inadequate on-campus treatment by the school nurse who had her get a wet paper towel from the bathroom and sent her back to the track with only a Band-Aid; the nurse did not notify Parents of Minor’s injury or ask her whether she wanted to contact them. (Compl., ¶¶ 14–15.) While it is true that a claim need not be specifically denominated as medical negligence, Parents and Minor do not assert any claim against the nurse despite including some allegations about inadequate medical treatment in the background portion of the complaint and the first cause of action. Thus, it does not seem Parents and Minor are relying on medical negligence as a theory of liability. Consequently, the Court does not discuss these allegations or the seemingly premature argument presented by the District and its staff about whether a claim for medical malpractice could be stated in the future. (See Mem. of Pts. & Auth. at p. 16, fn. 8.)

To summarize, the complaint alleges the District and its staff failed to protect Minor from being injured by Classmate and then failed to adequately and impartially address Minor’s complaint, becoming embroiled in the dispute as advocates for Classmate. Parents and Minor2 assert causes of action against the District, its staff, and Classmate’s parents for: (1) negligence (against District, Johnson, Neal, and Classmate’s parents); (2) negligent supervision (against District, Johnson, and Neal); (3) assault and battery (against Classmate’s parents); (4) invasion of privacy (against District, Johnson, Neal, and Deans); and (5) intentional infliction of emotional distress (against District, Johnson, Neal, and Deans). The District and its staff (Johnson, Neal, and Deans) (collectively, “Defendants”) move for judgment on the pleadings as to the first, second, fourth, and fifth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) II. Discussion

A motion for judgment on the pleadings, like a demurrer, tests the legal sufficiency of the pleading. (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1337.) A court assumes the truth of the factual allegations in the complaint to determine whether any claim has been stated. (Ibid.) The existence of a pleading defect, if any, must be apparent from “the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”3 (Code Civ. Proc., § 438, subd. (d).) Defendants argue neither Parents nor Minor properly plead a statutory claim against them. They additionally argue they are immune from liability based on a number of different statutes. The Court first addresses the sufficiency of the allegations more generally before discussing Defendants’ assertions of immunity and, ultimately, concluding the motion must be granted in part and denied in part.

A. Sufficiency of Allegations

Defendants argue the first, fourth, and fifth causes of action are improper because they are based on common law rather than statutory theories of liability and that no statutory bases for liability are pleaded.4 Defendants’ arguments are unavailing because they are based on an incomplete statement of the law and analysis. The general rule is that a public entity is only liable to the extent authorized by statute. (Gov. Code, § 815.) This means that a plaintiff cannot assert claims against a public entity based on common law theories of liability without more; it does not mean that a plaintiff may not rely on common law theories in conjunction with statutory authorization for proceeding based on those theories. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1112, disapproved on another ground by Hayes v. County of San Diego (2013) 57 Cal.4th 622.) To illustrate, a public entity is directly liable when it violates a mandatory duty owed to the plaintiff. (Gov. Code, § 815.6.) Additionally, a public entity is vicariously liable “for injury proximately caused by an 2 Only Minor’s mother, Andrea Kline, is representing her as a guardian ad litem. 3 The Court does not consider various policies of the District’s board in evaluating the motion. As a practical matter, the Court does not have the policies and, thus, lacks any information about their contents. As a matter of law, the policies are neither pleaded nor subject to judicial notice. Even assuming the policies qualified for judicial notice, the Court is not aware of any request for judicial notice. (See generally Evid. Code, §§ 451–453.) 4 Defendants also assert that the first and second causes of action are redundant and that this is an additional basis for sustaining the demurrer. It is true that the first and second causes of action both sound in negligence. Nevertheless, this argument is unavailing because the manner in which a plaintiff organizes his or her claims is not the central focus of a pleading challenge. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) And, redundancy is not a basis for granting judgment on the pleadings. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889–90.)

act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2.) A public employee is individually liable for his or her own tortious conduct “to the same extent as a private person.” (Gov. Code, § 820, subd. (a).) In sum, in addition to direct liability imposed on a public entity by statute, “‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.) Here, it is true that Parents and Minor only identify statutory bases for liability by section number in the second cause of action, not in the first, fourth, and fifth causes of action. (Compl., ¶ 34.) But the first cause of action paraphrases Government Code section 815.2 and 820. (Compl., ¶ 29.) And, all of the allegations about vicarious liability are incorporated by reference into the fourth and fifth causes of action. (Compl., ¶¶ 38, 42.) Also, it is self-evident that Parents and Minor seek to hold staff liable for their own tortious conduct and District vicariously liable for the conduct of its staff. Thus, although Parents and Minor do not cite by section number a statutory basis for the District’s direct liability in the first, fourth, and fifth causes of action, it is obvious and they do adequately identify a statutory basis for the District’s vicarious liability and the direct liability of its staff. This is sufficient for pleading purposes. Accordingly, Defendants’ categorical assertion that common law theories are improper as well as their related assertion that no statutory bases for liability are pleaded lack merit.5 Defendants also argue there is no duty to protect Minor from unforeseeable harm. But while Defendants frame their argument as directed to the element of duty as relevant to the first and second causes of action, they focus on other elements of negligence and seem to confuse distinct legal concepts. “[A] school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’ [Citations.]” (C.A., supra, 53 Cal.4th at p. 869.) “[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (Id. at p. 870.) “This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student….” (Ibid.) Accordingly, it is indisputable and Defendants do not actually appear to be disputing whether they owed a duty of care. In reaching this conclusion, the Court clarifies that a “court’s task in determining whether a duty exists ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446.) And so, in focusing on whether harm was, in fact, foreseeable based on the particular circumstances

5 Indeed, Defendants do not cite authority to support their apparent position that the pleading standard requires the identification of a statute by name or citation to a statute by section number. As articulated in the case Defendants cite, the issues is whether sufficient facts are pleaded to support a statutorily authorized theory of liability, such as vicarious liability under Government Code section 815.2. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 811–12; see also C.A., supra, 53 Cal.4th at p. 869.)

of this case (including facts beyond those pleaded), Defendants stray from their argument as framed, namely whether a duty is owed. Defendants’ actual arguments—that they did not breach a duty and cause any injury—go beyond the scope of this challenge to the legal sufficiency of the pleading. Indeed, Defendants rely almost exclusively on cases addressing the sufficiency of evidence with respect to the elements of breach and causation. (See Dailey v. L.A. Unified School Dist. (1970) 2 Cal.3d 741, 747–50; Thompson v. Sacramento Unified School Dist. (2003) 107 Cal.App.4th 13526.) In sum, Defendants’ arguments about the sufficiency of the theories pleaded are not persuasive and do not justify granting their motion as to the first, second, fourth, and fifth causes of action.7 That said, there is some merit to Defendants’ argument about the sufficiency of Parents’ allegations to the extent they assert claims individually as compared to representing Minor in pursuing her own claims. While Parents’ opposition to Defendants’ argument is conclusory and unsupported by legal authority, they identify an important fact—their payment of Minor’s medical expenses—that reflects Defendants’ argument reaches the correct conclusion but remains flawed. Although Defendants frame their argument as an argument about standing, this is inapt. In California, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) “This means the plaintiff must possess a substantive right or standing to prosecute an action.” (GameStop, Inc. v. Super. Ct. (2018) 26 Cal.App.5th 502, 510.) Of course, Parents have standing to prosecute an action in their own names. Additionally, Minor, although lacking capacity, has standing to seek redress for her own injuries. Under Code of Civil Procedure section 372, subdivision (a), when a minor is a party to the action, the minor lacks capacity to proceed and must appear through a guardian ad litem. The guardian ad litem is not a party, but merely a representative of the real party in interest, namely the minor. (McClintock v. West (2013) 219 Cal.App.4th 540, 549.) In sum, Minor, a real party in interest, must be represented by a guardian ad litem (in this case, her mother); no standing issue is presented. And, Parents have standing to assert their own claims. Thus, the issue is simply whether Parents allege they suffered any injury. With one exception, Parents do not actually allege they individually suffered any injuries. In the fourth and fifth causes of action in particular, Parents identify Minor as the injured party. (See, e.g., Compl., ¶¶ 41, 43.) But as relevant to the first and second causes of action, Parents allege that Minor’s mother took her to the emergency room and medical expenses were incurred for treatment of Minor’s knee injury. While Parents do not explicitly allege, verbatim, that they paid Minor’s medical expenses, this inference is reasonable in light of all of the facts alleged. (Compl., ¶¶ 2, 15.) “‘The parents of a minor are normally responsible for medical and hospital care furnished the minor, and the cause of action to recover these items normally rests with the parents.’” (White v. Moreno Valley Unified School District (1986) 181 Cal.App.3d 1024, 1030, quoting Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 162–63.) “But the child is also liable for the reasonable value of these expenses.” (White, supra, 181 Cal.App.3d at p. 1030, quoting Bauman, supra, 42 Cal.App.2d at pp. 162–63.) “Thus, strictly speaking, the cause of action to recover medical expenses incurred on account of a minor’s personal injuries

6 Although Thompson contains a brief discussion of whether a particular duty was owed, the Third District did not conclude that there was no legal duty at all and Defendants do not rely on that portion of the opinion or apply its reasoning. (See Thompson, supra, 107 Cal.App.4th at pp. 1366–69.) Instead, Defendants rely on the portion of Thompson addressing the sufficiency of evidence of causation. (Id. at p. 1372.) 7 The Court does not address additional arguments Defendants advance in various footnotes throughout their briefs. These arguments are presented in a cursory manner and without analysis of the authority cited or allegations pleaded. Accordingly, they are unsubstantiated and will not be discussed further.

does not belong exclusively to the parents; in reality it belongs to both the parents and the minor.” (White, supra, 181 Cal.App.3d at p. 1030.) With that said, there can be no double recovery. (Ibid.; accord Laughner v. Byrne (1993) 18 Cal.App.4th 904, 910–11.) Thus, when a parent represents a minor as guardian ad litem for the purpose of pursuing the minor’s claim to recover these expenses in the minor’s own right, the parent cannot recover these same expenses individually. (Laughner, supra, 18 Cal.App.4th at pp. 910–11.) Here, Minor’s mother is representing Minor as guardian ad litem in Minor’s action to recover these expenses on her own behalf. Consequently, Parents cannot recover these expenses individually. In summary, Parents’ first and second causes of action against Defendants individually cannot proceed in light of the election to represent Minor in pursuing the expenses on her own. And, Parents’ third and fourth causes of action are not properly pleaded because they do not allege they suffered any injuries or that their rights were violated.

B. Statutory Immunity

Defendants argue the causes of action asserted against them fail because they have statutory immunity from liability under Government Code sections 818.8, 820.2, 821.6, 822.2 as well as Civil Code section 47.8

1. Government Code § 820.2

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) As the California Supreme Court has explained, “a ‘workable definition’ of immune discretionary acts draws the line between ‘planning’ and ‘operational’ functions of government.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981, quoting Johnson v. State of Cal. 69 Cal.2d 782, 793–94.) “Immunity is reserved for those ‘basic policy decisions [which have]…been [expressly] committed to coordinate branches of government,’ and as to which judicial interference would thus be ‘unseemly.’” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 793, italics in original.) “Such ‘areas of quasi-legislative policy-making…are sufficiently sensitive’ [citation] to call for judicial abstention from interference that ‘might even in the first instance affect the coordinate body’s decision-making process’ [citation].” (Caldwell, supra, 10 Cal.4th at p. 981.) “On the other hand, said Johnson, there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 796.) “Moreover, [ ] immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages…took place. The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision. [Citations].’” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 795, fn. 8.) Here, while Defendants cite cases that suggest discretionary immunity may apply in the context of decisions about school discipline, they do not provide more than superficial analysis of the standard for immunity to establish that, at this juncture, the acts described in the pleading qualify as discretionary acts rather than operational acts carried out in accordance with predetermined policies. Also, Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4th 31 does not establish, as a matter of law, that discretionary immunity applies to the acts of school administrators in this context because the First District explicitly declined to

8 When a public entity’s employees are immune from liability, the entity cannot be held vicariously liable. (Gov. Code, § 815.2, subd. (b).)

address that issue; the issue was not raised on appeal. (Skinner, supra, 37 Cal.App.4th at p. 40, fn. 2.) Accordingly, discretionary immunity does not provide a basis for granting judgment on the pleadings.

2. Government Code § 821.6

Under Government Code section 821.6, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” “California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048.) “Immunity under Government Code section 821.6 is not limited to claims for malicious prosecution, but also extends to other causes of action arising from conduct protected under the statute, including defamation and intentional infliction of emotional distress.” (Ibid.) Additionally, as Defendants point out, “Government Code section 821.6 immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings.” (Gillan, supra, 147 Cal.App.4th at p. 1048, citing Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209–1210.) “An investigation before the institution of a judicial proceeding is part of the prosecution of a judicial proceeding for purposes of the statute, even if the authorities later decide not to file charges.” (Gillan, supra, 147 Cal.App.4th at p. 1048.) “Acts undertaken in the course of an investigation,” including public statements about the progress of an investigation or statements made to the victim, “cannot give rise to liability.” (Ibid.) But the acts must be undertaken within the scope of employment and in furtherance of the investigation. (Catsouras v. Dept. of Cal. Highway Patrol (2010) 181 Cal.App.4th 856, 889.) This determination may involve a question of fact that cannot be resolved at the pleading stage. (Id. at pp. 889–90.) On the other hand, when there is only one reasonable conclusion that can be drawn from the facts alleged, this determination may be made on the pleadings. (Richardson-Tunnell v. Schools Insurance Program for Employees (2007) 157 Cal.App.4th 1056, 1062–63, disapproved on another ground in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8.) To illustrate, when a plaintiff alleges police officers disseminated and caused to spread across the internet a photograph of the decapitated corpse of the plaintiff’s relative solely as a Halloween prank, the allegations are insufficient to establish the officers’ conduct occurred within the scope of employment and in furtherance of an investigation. (Catsouras, supra, 181 Cal.App.4th at pp. 863, 889.) Under such circumstances, immunity cannot be established at the pleading stage. (Ibid.) In contrast, when employees of a retirement plan and school district videotape a teacher during her wedding ceremony and reception as part of their investigation of her worker’s compensation claim, immunity may be determined at the pleading stage and a court may grant judgment for the defendant on the pleadings. (Richardson-Tunnel, supra, 157 Cal.App.4th at pp. 1062–63.) Here, the fourth and fifth causes of action are based on Defendants’ handling of the investigation into the bullying complaint. Although Parents and Minor take issue with how Defendants’ handled the investigation, the facts alleged indisputably disclose that the conduct at issue in the fourth and fifth causes of action occurred within the scope of employment and in furtherance of the investigation. Unlike in Catsouras, the claims are not predicated on email communications that, on their face, lacked a sufficient nexus to the investigation and were sent for personal reasons. The facts alleged here more closely resemble those in Richardson-Tunnel in which it was self-evident from the facts pleaded that the conduct was related to the investigation of a work-related matter by those tasked with investigating. Accordingly, the

facts pleaded establish Defendants are immune from liability under Section 821.6 with respect to the fourth and fifth causes of action. To be sure, Parents and Minor do not advance a persuasive argument to support a contrary conclusion. They insist there can be no immunity without a formal proceeding, which assertion is contrary to California law. They do not effectively distinguish Amylou R. based on the ratio decidendi or cite any number of California cases that came after to support a contrary conclusion. The only new case they do cite is neither factually analogous nor the subject of any legal analysis in the opposition.9 (See Quon v. Arch Wireless Operating Co. (C.D.Cal. 2006) 445 F.Supp.2d 111.) The points they advance about their lack of knowledge about the specific job duties of District’s staff members are not well-taken because they are made without reference to any authority establishing such duties are relevant under applicable standards and given they characterize Defendants’ conduct as investigatory conduct. Ultimately, any doubt is extinguished by the authority Defendants provide in their reply about the regulatory framework for investigation of bullying complaints. Consequently, the motion is meritorious with respect to the fourth and fifth causes of action because Defendants are immune from liability under Section 821.6.

3. Government Code §§ 818.8, 822.2

Defendants also argue they are immune from liability under Government Code section 822.2, which states “[a] public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” But as Parents and Minor articulate in opposition, the immunity provided by Section 822.2 is qualified and may be overcome by fraud, corruption, or (as they allege) malice, which Defendants do not adequately address on reply. Accordingly, the Court is not persuaded based on the facts and analysis presented at this juncture that Defendants are also immune under Section 822.2. Defendants also assert the District has direct immunity under Section 818.8 for: “an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” Parents and Minor seem to tacitly concede this point as they do not address it in their opposition. Even so, it is unnecessary to resolve the issue of whether this immunity applies given the existence of immunity under Section 821.6, in the absence of a more robust discussion from the parties, and because allegations of subterfuge make up only a portion of the conduct giving rise to the causes of action asserted. In sum, the Court does not grant judgment on the pleadings based on statutory immunity under Section 818.8 or Section 822.2.

4. Civil Code § 47

Defendants also claim their conduct was privileged under Civil Code section 47. “Section 47 establishes a privilege that bars liability in tort for the making of certain statements.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) “Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or

9 Parents and Minor neglect to point out that Quon was the subject of an appeal to the Ninth Circuit Court of Appeals and subsequent petition to the United States Supreme Court. (See Quon v. Arch Wireless Operating Co. (9th Cir. 2008) 529 F.3d 892; City of Ontario v. Quon (2010) 560 U.S. 746.) Fortunately, in reversing in part and affirming in part, the Ninth Circuit agreed with the trial court on the subject of immunity. (Quon, supra, 529 F.3d at p. 910.) And, the United States Supreme Court considered the limited issue of whether one aspect of the investigation at issue comported with the Fourth Amendment. (City of Ontario, supra, 560 U.S. at p. 750.) Nevertheless, the reliance on a trial court decision in this manner is problematic.

(4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],’ with certain statutory exceptions ….” (Hagberg, supra, 32 Cal.4th at p. 360.) “The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Ibid.) Based on the facts alleged here, the privilege could only conceivably apply if Defendants made statements falling within clause three or four. But Defendants do not adequately establish the same. “Section 47, subdivision (c) extends a qualified privilege to other communications.” (Hagberg, supra, 32 Cal.4th at p. 360.) “Under section 47, subdivision (c), a qualified privilege, that is a privilege that applies only to communications made without malice, applies to ‘communication[s]…to a person interested therein, (1) by one who is also interested or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.’” (Ibid.) The common interest privilege may cover statements by school officials or parents regarding matters of school administration and on-campus conduct. (See, e.g., Hicks v. Richard (2019) 39 Cal.App.4th 1167, 1177–78; see also Martin v. Kearney (1975) 51 Cal.App.3d 309, 311–312.) Accordingly, the facts pleaded support the conclusion that the privilege may apply under the circumstances presented here. But, ultimately, because the privilege is qualified, the Court cannot conclusively determine that Defendants’ conduct was indisputably and absolutely privileged based on the pleading.10

C. Conclusion

Defendants’ motion for judgment on the pleadings is GRANTED as to all causes of action asserted by Parents individually against both the District and its staff, GRANTED as to the fourth and fifth causes of action asserted by Minor through her guardian ad litem against the District and its staff, and DENIED as to the first and second causes of action asserted by Minor through her guardian ad litem. Any amended pleading shall be filed within 30 days of the Court’s order. (Code Civ. Proc., § 438, subd. (h)(2).) Parents may not amend their first and second causes of action.

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10 Defendants do not challenge the sufficiency of the malice allegations. (See Martin, supra, 51 Cal.App.3d at pp. 311–12.)

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Calendar line 4 Case Name: Apple Inc. v. Gerard Williams III Case No.: 19-CV-352866 Currently before the Court are: (1) the motion by defendant Gerard Williams III (“Williams”) for a protective order prohibiting discovery until plaintiff Apple Inc. (“Apple”) provides a trade secret designation under Code of Civil Procedure section 2019.210 or, alternatively, staying discovery until a ruling is issued on his demurrer and motion to strike; (2) the joinder by non-party NuVia, Inc. to the motion for protective order; (3) the demurrer by Williams to the complaint; and (4) the motion by Williams to strike portions of the complaint.

Factual and Procedural Background

This action arises out of Williams’ alleged breaches of an intellectual property agreement (“IPA”) he entered into with Apple and his development of a competing business, NuVia. Williams joined Apple in 2010, as a senior platform architect. (Complaint, ¶¶ 2 & 17.) While at Apple, Williams designed chips for a range of Apple products and worked with, advised, and led teams that designed some of Apple’s ARM technology. (Id. at ¶¶ 2, 15-16, & 23-25.) As a condition of his employment, Williams executed an IPA whereby he agreed that he would not plan or engage in any other employment, occupations, consulting, or other business activities or commitments competitive with or directly related to Apple’s business or products during his tenure with Apple. (Complaint, ¶¶ 18, 19, & 45.) Williams further agreed that all inventions resulting from or suggested by work performed by him for Apple would be Apple’s sole and exclusive property. (Id. at ¶¶ 21 & 48.) Finally, Williams agreed that he would promptly disclose all inventions and perform all acts needed to assign inventions to Apple. (Ibid.) During his employment with Apple, Williams allegedly planned and developed Nuvia, a competing business that builds chips using technology that is directly related to William’s work with Apple. (Complaint, ¶¶ 1, 4, 6, 27-34, 46.) Williams also recruited Apple employees to work for NuVia while he was still employed with Apple. (Id. at ¶¶ 1, 4, 5, 31, 35-40, & 46.) Williams allegedly breached the IPA by planning and developing NuVia during his tenure with Apple and failing to disclose and assign to Apple inventions developed for NuVia that were based on work resulting from or suggested by his work for Apple. (Complaint, ¶¶ 45-50.) Additionally, Williams allegedly breached a duty of loyalty owed to Apple by starting a competing business, NuVia, during his employment with Apple and failing to disclose “his work in the same space as Apple.” (Id. at ¶ 55.) Based on the foregoing allegations, Apple filed a complaint against Williams, alleging causes of action for: (1) breach of contract; and (2) breach of duty of loyalty.

Discovery Dispute

In September 2019, Apple served Williams with requests for admission, form and special interrogatories, and requests for production for documents, seeking information and

documents relating to Apple’s claims. In his responses to the discovery requests, Williams objected on the ground that the action was one for trade secret misappropriation and Apple had not served a trade secret disclosure under Code of Civil Procedure section 2019.210. The parties met and conferred regarding the discovery requests, but were unable to resolve their dispute. In early November 2019, Williams filed a demurrer and motion to strike, which were set for hearing on January 21, 2020. Thereafter, Williams filed a motion asking the court to designate the action as a complex case, asserting among other things that the case involved trade secret law. On November 18, 2019, Williams filed a motion for protective order, which was set for hearing on January 14, 2019. The court (Hon. Thomas E. Kuhnle) issued an order on December 6, 2019, denying Williams’ motion to designate the action as a complex case. In its order, the court noted that there was no trade secret cause of action. On December 31, 2019, Apple filed papers in opposition to the motion for protective order. Subsequently, NuVia filed a notice of joinder to the motion on January 6, 2020. The next day, Williams filed a reply in support of his motion for protective order. That same day, Apple filed papers in opposition to Williams’ demurrer and motion to strike. Approximately one week later, the parties stipulated to continue the hearing on the Williams’ motion to protective order to January 21, 2020.

Discussion

I. Joinder

NuVia filed its joinder to the pending motion for protective order on January 6, 2020, and electronically served the joinder on Apple the same day.

A joinder is subject to the same notice and service requirements as the moving party’s

motion. (See Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637; see also Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719; Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1176.) Thus, similar to the motion for protective order, NuVia was required to file and serve its joinder 16 court days prior to the hearing. (See Code Civ. Proc., § 1005, subd. (b).)

Here, NuVia’s joinder was filed and served only 10 court days before the hearing.11

The joinder is, therefore, untimely. Given this procedural defect, Apple was prejudiced as it did not receive the joinder before it filed its opposition.

11 Notably, Monday, January 20, 2020, is a court holiday.

Furthermore, NuVia is not a party to this action and does not identify any legal

authority demonstrating that it has standing to join in the instant motion.

Accordingly, NuVia’s joinder is DENIED.

II. Motion for Protective Order

Pursuant to Code of Civil Procedure section 2019.020, Williams moves for a protective order prohibiting discovery until Apple provides a trade secret designation under Code of Civil Procedure section 2019.210 or, alternatively, staying discovery until a ruling is issued on his demurrer and motion to strike.

A. Legal Standard On motion and for good cause shown, the court may establish the sequence and timing

of discovery for the convenience of parties and witnesses and in the interests of justice. (Code Civ. Proc., § 2019.020, subd. (b).)

Code of Civil Procedure section 2019.210 states that, in an action alleging the

misappropriation of a trade secret under the CUTSA, “before commencing discovery relating to the trade secret the party alleging the misappropriation shall identify the trade secret with reasonable particularity.”

In Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826,

the court held that the statute applies not only to misappropriation causes of action under the CUTSA, but also to any cause of action that hinges entirely upon allegations of trade secret misappropriation. (Id. at pp. 834-835 [holding that causes of action for breach of a licensing agreement were actions for misappropriation because the only breach of the agreement alleged by the plaintiff was misappropriation of a trade secret].)

In Perlan Therapeutics, Inc. v. Superior Court (2009) 178 Cal.App.4th 1333, the court

stated in dicta that where a cause of action hinges at least in part on allegations of misappropriation, a court does not abuse its discretion by allowing discovery into non-misappropriation allegations, while requiring the party seeking discovery to comply with Code of Civil Procedure section 2019.210 before discovery will be allowed into allegations of trade secret misappropriation. (Id. at p. 1337, fn. 2.)

B. Analysis Williams contends that Apple must provide a trade secret disclosure under Code of

Civil Procedure section 2019.210 notwithstanding the fact that the complaint does not contain a cause of action for misappropriation of a trade secret. Williams asserts that the claims for breach of contract and breach of loyalty relate to and depend on him allegedly misappropriating trade secrets.

In opposition, Apple argues it is not alleging a claim for misappropriation of a trade secret under the CUTSA and its causes of action for breach of contract and breach of loyalty are not based on allegations that Williams misappropriated trade secrets.

The plain language of Code of Civil Procedure section 2019.210 indicates that the

section only applies in an action “alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act ….” In the complaint, Apple alleges that Williams breached the IPA by planning and developing NuVia during his tenure with Apple and failing to disclose and assign to Apple inventions developed for NuVia that were based on work resulting from or suggested by his work for Apple. (Complaint, ¶¶ 45-50.) Additionally, Apple alleges that Williams breached a duty of loyalty owed to it by starting a competing business, NuVia, during his employment with Apple and failing to disclose “his work in the same space as Apple.” (Id. at ¶ 55.) Apple does not allege that Williams misappropriated its trade secrets. The complaint does not set forth a claim for trade secret misappropriation under the CUSTA and Apple’s causes of action for breach of contract and breach of duty of loyalty do not relate to any such claim. Thus, Code of Civil Procedure section 2019.210 does not apply to this action.

C. Conclusion Accordingly, Williams’ motion for protective order is DENIED.

III. Demurrer Williams demurs to the complaint, and each and every cause of action alleged therein, on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (Williams’ Ntc. Dem., p. i:8-23; see Code Civ. Proc., § 430.10, subds. (e) & (f).) A. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353 (Hilltop); Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) B. Uncertainty In his notice of demurrer, Williams indicates that he demurs to the complaint, and each of the causes of action alleged therein, on the ground of uncertainty. However, Williams’ memorandum of points and authorities is devoid of any argument specifying an allegation in the complaint that Williams contends is uncertain, ambiguous, and/or unintelligible. The “failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services

Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.) Instead of identifying uncertain aspects of the complaint, Williams’ arguments address Apple’s purported failure to allege sufficient facts to state a claim. It appears that Williams misunderstands the nature of uncertainty as a ground for demurrer. The law is settled that “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made.” (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.) Thus, Williams’ demurrer on the ground of uncertainty is not well-taken. Accordingly, Williams’ demurrer to the complaint, and each and every cause of action alleged therein, on the ground of uncertainty is OVERRULED. C. Failure to Allege Facts Sufficient to State a Claim 1. Breach of Contract Williams initially argues the first cause of action for breach of contract fails to state a claim because it is premised on section 3.0 of the IPA and that section violates Business and Professions Code section 16600. Williams contends section 3.0 of the IPA violates Business and Professions Code section 16600 because it bars Apple employees from: (1) planning other employment, occupations, consulting, or other business activities or commitments competitive with or directly related to Apple’s business during the employees’ tenure with Apple; and (2) soliciting other Apple personnel after the employees’ employment with Apple has terminated. Business and Professions Code section 16600 provides, “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” That statute has consistently been interpreted as invalidating any employment agreement that unreasonably interferes with an employee’s ability to compete with an employer after his or her employment ends. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 509 (Angelica), citing Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239, 242.) “However, the statute does not affect limitations on an employee’s conduct or duties while employed.” (Angelica, supra, 220 Cal.App.4th at p. 509.) Additionally, “[w]hile California law does permit an employee to seek other employment and even to make some ‘preparations to compete’ before resigning [citation], California law does not authorize an employee to transfer his loyalty to a competitor. During the term of employment, an employer is entitled to its employees’ ‘undivided loyalty.’ [Citation.]” (Angelica, supra, 220 Cal.App.4th at p. 509, citing Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 41.) Thus, employees may plan and prepare to create a competitive enterprise prior to their termination, so long as they do so on their own time and with their own resources. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 719 (Mamou).) Employees may not use the employer’s time, facilities, or proprietary information to build the competing business. (Ibid.) As is relevant here, section 3.0, subdivision (a) of the IPA states, “You agree that during the tenure of your employment by Apple you will not plan or engage in any other employment, occupations, consulting, or other business activities or commitments competitive

with or directly related to Apple’s business or products, or to its actual or demonstrably anticipated research or development, nor will you engage in any other activities that conflict with your employment obligations to Apple.” (Complaint, Ex. A.) Section 3.0, subdivision (d) of the IPA provides, “During your employment and for a period of one (1) year following your termination date, you will not, directly or indirectly, solicit, encourage, recruit, or take any action intended to induct Apple employees or contractors to terminate their relationship with Apple.” (Ibid.) First, it is readily apparent that section 3.0, subdivision (a) of the IPA does not impact Williams’ ability to compete with Apple after his employment ends. Because the provision only prohibits certain conduct during Williams’ tenure with Apple, it does not violate Business and Professions Code section 16600. (See Angelica, supra, 220 Cal.App.4th at p. 509.) Furthermore, the Court is not persuaded that section 3.0, subdivision (a) violates Business and Professions Code section 16600 to the extent it prohibits Williams from planning a competitive enterprise while employed with Apple. As explained above, an employee is not permitted to plan and prepare to create a competitive enterprise prior to termination if the employee does so on their employer’s time and with the employer’s resources. (Mamou, supra, 165 Cal.App.4th at p. 719.) To the extent that section 3.0, subdivision (a) prohibits planning of such a nature, it does not violate Business and Professions Code section 16600. Finally, even though section 3.0, subdivision (d) of the IPA is arguably violates Business and Professions Code section 16600 as applied to Williams’ post-resignation recruitment of Apple employees (see AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 938; see also Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 945-947), the provision does not violate the statute to the extent it pertains to William’s solicitation of other employees during his employment with Apple (see Angelica, supra, 220 Cal.App.4th at p. 509). Given that the first cause of action is based, in part, on portions of section 3.0 of the IPA that do not run afoul of Business and Professions Code section 16600, Williams’ argument regarding Business and Professions Code section 16600 fails to dispose of the first cause of action in its entirety. (See PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 (PHII) [a demurrer cannot be granted as to only a portion of a claim].) Williams also argues the first cause of action for breach of contract fails to state a claim because section 3.0, subdivision (a) of the IPA is procedurally and substantively unconscionable. Williams contends section 3.0, subdivision (a) of the IPA is procedurally and substantively unconscionable because “Apple, a trillon-dollar company, indisputably had vastly superior bargaining power relative to [him]”; the IPA is a contract of adhesion “A contract term is unenforceable if it is both procedurally and substantively unconscionable. Procedural unconscionability is satisfied by a determination that the contract is adhesive, i.e., ‘a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’ [Citation.]” (Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 753.) Additionally, “[a]n adhesion contract will be considered substantively unconscionable if it is unduly ‘one-sided’ in favor of the stronger party. ‘[A] contract or provision which does not fall within the reasonable expectations of the weaker or “adhering”

party will not be enforced against him .... [E]ven if consistent with the reasonable expectations of the parties, [a contract or provision] will be denied enforcement if, considered in its context, it is unduly oppressive or “unconscionable.” (Ibid.)’ [Citation.]” (Id. at pp. 753-754.) Here, it cannot be said, as a matter of law, that the IPA is a contract of adhesion. The circumstances surrounding Williams’ signing of the IPA are not alleged in the complaint. There are no factual allegations in the complaint addressing the parties’ relative bargaining power or establishing that the IPA is standard contract and is non-negotiable. Thus, whether section 3.0, subdivision (a) of the IPA is unconscionable is a question that cannot be resolved on demurrer. Next, Williams argues the first cause of action for breach of contract fails to state a claim to the extent it is predicated on his failure to disclose and assign inventions to Apple because Apple does not allege sufficient facts describing the invention he allegedly failed to disclose. He further asserts that Apple fails to allege that the subject inventions were based on its secrets or confidential information. As is relevant here, section 1.0, subdivision (a) of the IPA states that “inventions” are all inventions, ideas, discoveries, documentation, and materials made, created, conceived, or reduced to practice by Williams, alone or jointly with others. (Complaint, Ex. A.) Section 1.0, subdivision (b) of the IPA provides that all inventions that (1) result from or are suggested by work performed by Williams for Apple or (2) are conceived or reduced to practice during Williams’ employment with Apple and relate to the business or products of Apple, or to the actual or demonstrably anticipated research or development of Apple, are Apple’s sole and exclusive property. (Ibid.) The provision further states that Williams will assign such inventions to Apple. (Ibid.) In the first cause of action, Apple alleges that “Williams is developing products for NuVia based on work that results from or was suggest by [his] work at Apple and that relate to its business, products, research, and developments.” (Complaint, ¶ 49.) Apple further alleges that “Williams has failed to disclose and assign these inventions” to it. (Ibid.) As Williams persuasively argues, Apple does not allege sufficient facts describing the invention Williams allegedly failed to disclose. The allegation that Williams was “developing products for NuVia based on work that results from or was suggest by [his] work at Apple” does not adequately identify the invention (i.e., the idea, discovery, documentation, and/or material) that Williams made, created, conceived, or reduced to practice. Nonetheless, the first cause of action is not based solely on Williams’ alleged breach of section 1.0, subdivision (b) of the IPA. Consequently, Williams’ argument regarding that provision fails to dispose of the first cause of action in its entirety. (See PHII, supra, 33 Cal.App.4th at p. 1682 [a demurrer cannot be granted as to only a portion of a claim].) For these reasons, the demurrer to the first cause of action on the ground of failure to allege facts sufficient to state a claim is OVERRULED. 2. Breach of Duty of Loyalty

Williams initially argues the second cause of action for breach of duty of loyalty fails to state a claim because NuVia was not founded until after he left Apple. In support of this contention, Williams cites to a Certificate of Incorporation of NuVia, Inc., which is attached as Exhibit A to the declaration of his counsel. Williams’ initial argument lacks merit. “ ‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop, supra, 233 Cal.App.2d at p. 353.) Here, the date on which NuVia was purportedly founded is not alleged in the complaint. Additionally, the Certificate of Incorporation of NuVia, Inc. is not attached as an exhibit to the complaint. Moreover, Williams did not file a separate document requesting judicial notice of the Certificate of Incorporation of NuVia, Inc. (See Cal. Rules Ct., rule 3.1113(l) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested ….”].) Thus, Williams’ initial argument is based on facts that cannot properly be considered on demurrer. Next, Williams argues Apple fails to allege facts showing that he breached the duty of loyalty because employees are allowed to plan and develop a competitive business prior to leaving their employment under California law. This argument is not well-taken. As previously explained, an employee is not permitted to plan and prepare to create a competitive enterprise prior to termination if the employee does so on their employer’s time and with the employer’s resources. (Mamou, supra, 165 Cal.App.4th at p. 719.) This is precisely is what Williams is alleged to have done. (Complaint, ¶¶ 1, 4-6, 27-40, 46.) It is well-established that such conduct may constitute a breach of the duty of loyalty. (See Mamou, supra, 165 Cal.App.4th at p. 719.) Williams further argues the second cause of action for breach of duty of loyalty fails to state a claim because the claim is preempted by CUTSA. Williams contends that the second cause of action is preempted by CUTSA because it is indistinguishable from a claim for misappropriation of trade secrets. “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.) 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.) 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, supra, 220 Cal.App.4th at pp. 499 & 506.)

Williams’ argument lacks merit. Apple alleges that Williams breached a duty of loyalty owed to it by starting a competing business, NuVia, during his employment with Apple and failing to disclose “his work in the same space as Apple.” (Id. at ¶ 55.) Apple does not allege that Williams misappropriated its trade secrets confidential information, or proprietary information. The complaint does not set forth a claim for trade secret misappropriation under the CUSTA and Apple’s cause of action for breach of duty of loyalty does not relate to any such claim. Thus, the second cause of action is not preempted by CUTSA.

Finally, Williams argues that the second cause of action for breach of duty of loyalty

fails because it is predicated on the inevitable disclosure doctrine. “Under the doctrine of inevitable disclosure, ‘a plaintiff may prove a claim of trade

secret misappropriation by demonstrating that defendant’s new employment will inevitably lead him to rely on the plaintiff's trade secrets.’ [Citation.] The inevitable disclosure doctrine results in an injunction prohibiting employment, not just use of trade secrets.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1458.)

This doctrine has no application here as Apple is not trying to prove a claim for trade

secret misappropriation. Accordingly, the demurrer to the second cause of action on the ground of failure to allege facts sufficient to state a claim is OVERRULED. IV. Motion to Strike Williams moves to strike: (1) allegations of the first and second causes of action; (2) allegations regarding text messages sent by Apple employees; and (3) Apple’s request for punitive damages. A. Legal Standard Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) B. Allegations in the First and Second Causes of Action As a preliminary matter, Williams argues the Court should strike various allegations from the first and second causes of action for the same reasons articulated in his demurrer on the ground of failure to allege facts sufficient to constitute a cause of action. (Mem. Ps. & As., pp. 11:15-16, 13:12-14, 14:16-17, 17:8-10, & 18:14-15.) However, the majority of Williams’ arguments lacked merit for the reasons discussed above. Moreover, a failure to allege facts sufficient to state a claim is a basis for demurrer, not a basis for a motion to strike. Thus, the motion to strike those allegations from the complaint is DENIED. C. Allegations Regarding Text Messages

Williams argues the Court should strike allegations pertaining to text messages sent by Apple employees because those messages are confidential communications under Penal Code section 632 and are, consequently, inadmissible. Penal Code section 632, subdivision (a) states, “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” Subdivision (c) provides that a “confidential communication” means “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Pen. Code, § 632, subd. (c).) Finally, subdivision (d) states that, “[e]xcept as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” (Pen. Code, § 632, subd. (d).) Here, there are no allegations in the complaint establishing that the text messages were obtained as the result of eavesdropping upon or recording a confidential communication in violation of Penal Code section 632. Moreover, Apple is not required to affirmatively plead facts demonstrating that a violation of Penal Code section 632 has not occurred. Thus, the motion to strike allegations regarding employees’ text messages is DENIED. D. Punitive Damages Williams argues the Court should strike Apple’s request for punitive damages because Apple does not allege sufficient facts establishing that he acted with malice, oppression, or fraud. In order to plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (G.D. Searle & Co. v. Super. Ct. (1975) 49 Cal.App.3d

22, 29, internal citations omitted.) If a claim for punitive damages is not properly pleaded, it may be stricken. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 164.) Apple seeks punitive damages in connection with its cause of action for breach of duty of loyalty. There is no allegation of deliberate injury made in connection with this second cause of action. In opposition, Apple contends that Williams intended to cause injury to it, but nowhere in the complaint does Apple allege that Williams intended to injure it. Instead, Apple merely alleges that “Williams’s breaches of his duty of loyalty were done with malice and oppression, thereby entitling [it] to an award of punitive damages.” (Complaint, ¶ 57.) These conclusory allegations are wholly insufficient to support a claim for punitive damages. Accordingly, the motion to strike Apple’s request for punitive damages is GRANTED, with 10 days’ leave to amend.

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