Judge: Craig Griffin, Case: "Green MEP Engineering Consulting v. Jamaleddin, et. al..", Date: 2023-05-15 Tentative Ruling
Before the Court are two motions for protective order, with one seeking to stay “party” discovery by the plaintiff and the other seeking to stay “non-party” discovery by the plaintiff. The motions are brought by defendants Ali Asghar Jamaleddin a.k.a Kevin Din, Behnam Entezam a.k.a. Nami Entezam, Datum Design Group, Accessible Consulting Engineering, Inc., dba Ace Testing and ACMEP Group, and Iraj Nasrolahi. Both motions are DENIED.
At the heart of both motions is the defendants’ argument that the plaintiff has failed to comply with CCP §2019.210. Defendants bring both motions pursuant to CCP §2025.420 which requires that a motion for protective order must be accompanied by a declaration under Section 2016.240. Here, the meet and confer was insufficient.
The rule requiring a good faith effort to meet and confer about discovery disputes “is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . [t]his, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal. App. 4th 1431, 1439.) “A determination of whether an attempt at informal resolution is adequate also involves the exercise of discretion. The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted.” (Obregon v. Superior Court (1998) 67 Cal. App. 4th 424, 431.)
The first email by defense counsel relating to plaintiff’s trade secret designation was at 10:14 a.m. on 1/23/23 stating, “your designation of trade secrets is so general that one cannot really determine what Green MEP’s trade Secrets are.” (Exh. 5.) The email demanded that all pending deposition notices be withdrawn by 1 pm or the motion for protective order would be filed. First, the defendants gave no detail or authority as to why the nine page designation was not Code compliant. Second, giving less than three hours to respond before filing a motion is not acting in good faith. The fact is that lawyers have lives beyond the instant case that involve not only their other clients but their families as well and are not always able to drop everything to respond to an email.
Nonetheless, plaintiff’s counsel did apparently “drop everything” and at 12:03 pm on 1/23/23, he sent a lengthy email addressing the trade secret designation issue. (Exh. 5) In his email, plaintiff’s counsel cites Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1452-1454 which discusses that reference to general categories, such as “information about new products”, “pricing”, “profit margins”, “costs in producing the products”, etc. constitute sufficient identification for purpose of §2019.210. Plaintiff’s counsel also specifically asks for any authority showing the designation is inadequate. (Meet and Confer at Exh. 5). Attorney Mousavi’s response at 1:13 pm does not provide any such authority but does state “I am confident in my position.” (Exh. 5) The next meet and confer letter is dated 1/25/23 from Mousavi which is basically the motion for protective order cut-and-pasted onto attorney letter head. This is sent the same day as the instant motions for protective orders. Filing the motion on the same date the meet and confer is sent does not constitute a meaningful meet and confer as required under the Code.
Not only was the meet and confer inadequate, the 9 page trade secret designation dated October 29, 2022, provides sufficient information to comply with CCP §2019.210. The designation lists several categories, provides examples of the items falling within the categories, and explains why the plaintiff believes they are trade secrets. Further, while the terminology used may be confusing to a lay person and not generally understood, the defendants were former employees of Green and work in the industry and presumably understand what is being referred to. Thus, the trade secret designation provides sufficient information to understand the scope of discovery.
The leading case construing section 2019.210 is Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. In that case, the Court stated that “[t]he letter and spirit of section 2019.210 require the plaintiff, subject to an appropriate protective order, to identify or designate the trade secrets at issue with ‘ “sufficient particularity” ’ to limit the permissible scope of discovery by distinguishing the trade secrets ‘ “from matters of general knowledge in the trade or of special knowledge of those persons ... skilled in the trade.” ’ [Citations.]” (Advanced Modular, supra, 132 Cal.App.4th at p. 835, 33 Cal.Rptr.3d 901.)
“The trade secret designation mandated by section 2019.210 is not itself a pleading but it functions like one in a trade secret case because it limits the scope of discovery in much the same way as the allegations of a complaint limit discovery in other types of civil actions. … The rule that a trade secret must be pled with ‘reasonable particularity’ does not mean that the designation must be strictly construed against the pleader. (Citation) Generally speaking, pleadings are to be liberally construed in favor of the pleader and doubts about the permissible scope of discovery are to be resolved in favor of disclosure. (Citation.) ¶ ‘Reasonable particularity’ mandated by section 2019.210 does not mean that the party alleging misappropriation has to define every minute detail of its claimed trade secret at the outset of the litigation. Nor does it require a discovery referee or trial court to conduct a miniature trial on the merits of a misappropriation claim before discovery may commence. Rather, it means that the plaintiff must make some showing that is reasonable, i.e., fair, proper, just and rational[,] (citation) under all of the circumstances to identify its alleged trade secret in a manner that will allow the trial court to control the scope of subsequent discovery, protect all parties' proprietary information, and allow them a fair opportunity to prepare and present their best case or defense at a trial on the merits.” (Advanced Modular Sputtering, Inc. v. Superior Ct. (2005) 132 Cal. App. 4th 826, 835–36.)
“Absent a showing that the details alone, without further explanation, are inadequate to permit the defendant to discern the boundaries of the trade secret so as to prepare available defenses, or to permit the court to understand the identification so as to craft discovery, the trade secret claimant need not particularize how the alleged secret differs from matters already known to skilled persons in the field. Further, consistent with precedent, the trade secret designation is to be liberally construed, and reasonable doubts regarding its adequacy are to be resolved in favor allowing discovery to go forward.” (Brescia v. Angelin (2009) 172 Cal.App.4th 133, 143)
Defendants also argue that they are entitled to discovery priority based on an agreement reached with plaintiff’s counsel in July 2022. The correspondence submitted to the Court show that in July 2022, an agreement was made to allow defendants to take a single deposition in August before the plaintiff took the defendants’ depositions. This was conditioned on the deposition going forward in August and not being delayed. The agreement, if such was ever enforceable, appears to have expired long ago.
Notwithstanding the existence, or non-existence, of a discovery priority agreement, such is not a basis for a motion for protective order pursuant to CCP §2025.420. Instead, a protective order is only authorized “to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” (CCP §2025.420) Having to be deposed or respond to discovery either before or after the opposing party does not fall within these categories.
Defendants’ Request for Judicial Notice
Defendants submit along with their Replies a request that the Court take judicial notice of two of its prior orders. The Court is aware of the orders it has made in this case. However, the subject orders are not relevant to determination of the issues presented by the two motions and therefore the requests for judicial notice are DENIED. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 - only relevant material is subject to judicial notice.)
Defendants’ Declaration of Kevin Din
The Court declines to consider the new declaration of Kevin Din, and evidence contained therein, presented for the first time on reply. (See, e.g., Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 -“general rule of motion practice . . . is that new evidence is not permitted with reply papers”; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (same); Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 526 n.8 - “it is unfair to raise new arguments for the first time in a reply brief; we therefore need not consider the contention”. Balboa Ins. Co. v. Aguirre, (1983) 149 Cal.App.3d 1002 - a theory may not be raised for the first time in a reply brief.)
Sanctions
CCP §2025.420(h) states that “The court shall impose a monetary sanction” against any party or attorney “who unsuccessfully makes or opposes a motion for protective order, 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.”
The Court finds that the motion was brought without substantial justification and that the meet and confer was not in compliance with the Code. Accordingly, the Court GRANTS the plaintiff’s request for sanctions in the reduced amount of $4,550 for both motions and orders the five defendants, and their attorney Amy Mousavi, jointly and severally, to pay $4,550 in sanctions to plaintiff, through its attorney of record, within 30 days.
Counsel for plaintiff is ordered to give notice of this ruling.