Judge Gail Killefer, Case Number: 24STCV19085, Date: 2024-10-18 Tentative Ruling

TENTATIVE: Plaintiff’s request for a preliminary injunction is granted. Plaintiff is ordered to provide an undertaking.

On July 31, 2024, Kenneth J. Abdalla (“Plaintiff”) filed a Complaint against Marshalls and Stevens Incorporated (“Defendant” or “M&S”) and Does 1 to 50. The Complaint alleges three causes of action for:

Plaintiff now moves for a preliminary injunction. Defendant M&S opposes the Motion. The matter is now before the court.

motion for a preliminary injunction

“A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefore.” (CCP, § 527(a).) “A preliminary injunction is an interim remedy designed to maintain the status quo pending a decision on the merits.” (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 622.)

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

“Before issuing a preliminary injunction, the trial court must ‘carefully weigh the evidence and decide whether the facts require[ ] such relief.’ [Citation.] The court evaluates the credibility of witnesses and makes factual findings on disputed evidence.” (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356.)

A judge is not precluded from granting a preliminary injunction merely because of conflicts in the evidence. (See National Subscription Television v. Formula International, Inc. (1984) 153 Cal.App.3d 308, 314.) Because a hearing on a preliminary injunction is not a “trial of a question of fact” within the meaning of CCP § 632, a judge is not required to issue a statement of decision, even on request. (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1049.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (CCP § 526(a)(4).) Mandatory preliminary injunctions rarely are granted, and are reserved for extreme cases where the right is established clearly. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See CCP, § 529(a); CRC, rule 3.1150(f); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920.)

Defendant M&S requests that the court take judicial notice of four documents related to the request by Plaintiff to remove John Curtis as receiver in the Utah action. The request was filed on October 17, 2024, long after Defendant M&S had filed its opposing papers and after Plaintiff’s reply was due, thus denying Plaintiff an opportunity to respond. Accordingly, the court denies Defendant’s request for judicial notice.

This dispute arises out of a contract for the engagement of services from a firm that was subsequently merged and acquired by another firm with interests adverse to the Plaintiff. Plaintiff was the former manager of a Project, the Union Square Hotel Condominium Project, located in Utah. Plaintiff is the subject of litigation regarding his management of the Project by the Project’s Association (the “Utah Action”). (Abdalla Decl., ¶ 2.)

On October 19, 2019, John H. Curtis (“Curtis”), from Rocky Mountain Advisory, LLC (“Rocky Mountain” or “RMA”), was appointed as Receiver by the Project’s Association. (Id., ¶ 3.) In 2024, the receivership was terminated as to all matters other than a remaining dispute involving Plaintiff and his entities. (Ibid.)

As part of the litigation regarding the Project, on or about September 2, 2022, Plaintiff hired Jeff Picket from Corporate Financial Advisors, Inc. d/b/a Lone Peak Valuation Group (“Lone Peak”). (Abdalla Decl., ¶ 4.) Lone Peak agreed to provide expert services to Plaintiff and that the services would constitute confidential work product as it was rendered in connection with the dispute with the receiver. (Motion, at p. 1: 9-12.) Plaintiff and Lone Peak signed and entered into an Engagement Agreement^{^[1]} wherein the Parties agreed:

The work undertaken by Consultant [Pickett] and Lone Peak in connection with this engagement is being done for and under the direction of Counsel, and is part of Counsel's work product. Except as provided below, Consultant and Lone Peak shall not disclose any confidential or proprietary information to any third party.

As a condition of this engagement, Counsel and Client agree that Lone Peak and its employees may be engaged by parties with interests that are adverse to and may not be consistent with the interests of Client and Counsel, so long as those adverse interests are unrelated to the Services being provided by Lone Peak hereunder. Lone Peak and its employees reserve the right to accept unrelated engagements with other parties, and will not be required to advise Client of such engagement in the future. Where appropriate, Lone Peak will institute procedures to protect the confidential information provided by Client and Counsel on this engagement.

Plaintiff asserts that over the past months, Lone Peak and its employees have acquired a wealth of knowledge regarding the dispute with the receiver and have met with Plaintiff’s counsel to develop and share defense strategies for the Utah Action. (Abdalla Decl., ¶ 8.) These include work studying and critiquing the work performed by the receiver, John Curtis of RMA. (Id., ¶ 9.) Confidentiality of the information provided and shared by Lone Peak is a critical concern for Plaintiff. (Id., ¶ 16) The Engagement Agreement provides in the relevant part:

Except as provided below, Consultant and Lone Peak shall not disclose confidential and proprietary information to any third party. Consultant and Lone Peak may disclose confidential or proprietary information (a) to Lone Peak’s employees, agents, or contractors who are involved in this engagement, or (b) with Counsel’s written consent, or (c) when required by law to do so.

On March 26, 2024, Marshall and Stevens (“M&S”) acquired Rocky Mountain, Mr. Curtis’ firm. (Abdalla Decl., ¶ 18.) A week later, on April 3, 2024, M&S acquired Lone Peak. (Id., ¶ 18.) Accordingly, Rocky Mountain and Lone Peak are not part of the same firm, M&S. (Id., ¶¶ 20-24.) Plaintiff is concerned that because Lone Peak and Rocky Mountain are owned by the firm (“M&S), Plaintiff’s confidential information is at risk of disclosure as “the information we have provided to Mr. Pickett and the work product created by him are now owned by Marshall & Stevens and accessible by Mr. Curtis.” (Id., ¶ 26.) Consequently, on June 6, 2024, Plaintiff terminated his contract with Lone Peak and now seeks repayment of the fees paid to Lone Peak totaling about $150,643.75. (Id., ¶¶ 14, 28.).

Plaintiff now seeks to prevent M&S from acting adversely in connection with the dispute with the receiver and now requests a preliminary injunction upon the following terms:

1. An order directing that, during the pendency of the above-captioned action, Defendant, and each and all of its officers, directors, agents, employees, representatives, attorneys and successors, and each and all persons acting in concert or participating with them and each of them, are enjoined, restrained, and prohibited from engaging in, committing, or performing, directly or indirectly, by any means whatsoever, any of the following acts:

a. Participating as a party in the litigation styled Charles Raeburn et al. vs. Kenneth Abdalla, et al, filed in the Third Judicial District Court for Summit County, Utah. Civil No. 170500482 (the “Raeburn Litigation”);

b. Cooperating or otherwise working in concert with any party in the Raeburn Litigation in any capacity, whether as a consultant or expert witness or otherwise;

c. Taking any action related to the Raeburn Litigation that is adverse to Abdalla;

d. Disclosing to any person or entity any information whatsoever relating to the services performed by Defendants for the benefit of Abdalla;

e. Destroying, concealing or disposing of any Writings (as defined in Evidence Code § 250) relating to the merger of Defendant Marshall and Stevens Incorporated with Lone Peak Valuation and Rocky Mountain Advisors, or relating to any services provided by either of them in connection with the Raeburn Litigation.

“In deciding whether to issue a preliminary injunction to a plaintiff, a trial court must weigh two interrelated factors: (1) The plaintiff's likelihood of success on the merits at trial, and (2) the harm to the plaintiff if the injunction is not issued against the harm to the defendant if it is.” (Yee v. American National Ins. Co. (2015) 235 Cal.App.4th 453, 456.) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-59 citing CCP, § 430.10(g).) ¿“[A]ll essential elements of a breach of contract cause of action [] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.)

Plaintiff’s declaration asserts that Lone Beak breached the Engagement Agreement by “negotiating and entering into a business alignment with a litigation adversary[.]” (Abdalla Decl., ¶ 17.) The Complaint asserts that M&S as Lone Peak’s successor in interest “breached the Engagement Agreement by, among other things, exposing Plaintiff’s confidential and proprietary information and litigation work-product to Plaintiff’s adversaries, Curtis and Bateman, in the [Utah] Action and becoming financially interested in both sides of the [Utah] Action.” (Compl., ¶ 26.) Due to M&S prior acquisition of Rocky Mountain, its subsequent acquisition of Lone Peak “created an unwaivable and incurable conflict of interest to Plaintiff’s detriment and in violation of Plaintiff’s rights under” the Engagement Agreement. (Id., ¶ 17.) “[I]n the period leading up to these mergers, there was a due diligence process in which the conflicts of interest were directly discussed and in which the secrets of clients, including Plaintiff, were exposed to all parties involved including transactional counsel for the merging parties.” (Id., ¶ 18.) “As a result of Defendant’s acquisitions of [Rocky Mountain] and [Lone Peak], the plaintiff in the [Utah] Action acquired the confidential work product of Plaintiff prepared by [Lone Peak] and harmed Plaintiff not only in the revelation of its work product to its litigation adversary but setting Plaintiff back in the litigation by forcing him and his related parties to locate and retain a new expert.” (Id., ¶ 19.)

“The elements of a cause of action for intentional interference with contractual relations are ‘(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the 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.’ ” (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 997, citing Reeves v. Hanlon(2004) 33 Cal.4th 1140, 1148.)

“[T]he same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts.”¿ (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.) However, “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.”¿ (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [italics added]; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515 [‘ “An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.” ’ [internal quotation marks and citations omitted].)

The second cause of action asserts that M&S as successor of Lone Peak, caused a disruption to and breached the Engagement Agreement by acquiring Lone Peak and “providing access to the confidential information to Curtis, Plaintiff’s litigation adversary.” (Compl., ¶ 32.)

“The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.)

A claim for intentional interference with prospective economic advantage requires that the interference be wrongful by some legal measure other than the fact of the interference itself. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 378.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159.)

The third cause of action alleges that Defendant M&S, along with Rocky Mountain and Lone Peak were aware that Plaintiff and Rocky Mountain had adverse interests but proceeded with due diligence anyway. (Compl., ¶ 38.) Despite being aware of these conflicts, Defendant M&S proceeded with the acquisition of Lone Peak and harmed Plaintiff “by creating a conflict of interest and by exposing Plaintiff’s confidential information and work-product with Plaintiffs’ litigation adversary, Curtis, who is a partner in Defendant after Defendant’s acquisition of [Rocky Mountain].” (Id., ¶ 39.)

Plaintiffs may state a breach of contract claim against Defendant M&S on the basis that M&S is the successor in interest of Lone Peak and is responsible for Lone Peak’s breaches of the Engagement Agreement when it agreed to the merger with M&S and took a position directly adverse to Plaintiff. However, the breach of contract claim presumes that M&S is a party to the Engagement Agreement. The tort of intentional interference with contractual relations is committed only by “strangers—interlopers who have no legitimate interest in the scope or course of the contract's performance.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) Consequently, as pled, the second and third causes of action fail.

While Plaintiff may plead alternative theories of recovery, Plaintiff has failed to state that he pleads the second and third causes of action in the alternative to the first cause of action. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) Secondly, the second and third causes of action require that Plaintiff plead an independent wrongful conduct, something the Complaint fails to do. Consequently, the second and third causes of action fail as a matter of law.

Defendant M&S asserts that Plaintiff’s breach of contract claim will fail because Plaintiff has not shown that there was an actual disclosure of Plaintiff’s confidential information. The court agrees that Plaintiff has failed to put forth any evidence to support the finding that M&S has disclosed Plaintiff’s financial information to Mr. Curtis or his agents, even during the acquisition process.

Plaintiff also asserts that Defendant M&S breached the Engagement Agreement via the merger because the Engagement Agreement specifically prohibited Lone Peak, and its successors, from engaging with parties with adverse interests that are related “to the Services being provided by Lone Peak hereunder.” (Compl., Ex. A at p. 4 [emphasis added]; see also Abdalla Decl. Ex. A at p. 4.)

Defendant M&S asserts it did not breach the Engagement Agreement because Lone Peak has not provided any services that conflict with Plaintiff’s interests in the Summit Action, or in any other action, for that matter.

The Acquisition did not “merge” Lone Peak and Rocky Mountain into one entity such that there is (or ever was) a unity of employees, physical offices, and computer systems. (Pickett Decl., ¶ 12.) Lone Peak and Rocky Mountain are wholly owned subsidiaries of Defendant. (Id., at ¶ 10.) Therefore, the fact that post-acquisition, the firms ended up on the opposite side of the Utah Action does not automatically create a conflict of interest. Jeff Pickett, asserts that:

Since the acquisition, Lone Peak and Rocky Mountain have continued to operate separately. We maintain separate physical offices, as Lone Peak is located in Cottonwood Heights, Utah and Rocky Mountain is located in Salt Lake City. As was the case before the Acquisition, the firms have continued to retain completely separate staff. I do not have any access to Rocky Mountain's client files or email databases and Rocky Mountain's employees do not have access to Lone Peak's files. I have not spoken to Curtis or any other Rocky Mountain employee regarding Abdalla or the [Utah] Action. . . Due to the impending acquisition and in compliance with the American Institute of CPAs Code of Professional Conduct ("AICPA Code"), I instituted several safeguards to ensure Abdalla's strict confidentiality.

Defendant asserts that M&S is now the parent company of Lone Peak and Rocky Mountain, making the latter entities wholly owned subsidiaries of M&S. (Pickett Decl., ¶ 10.)

“Therefore, the fact that post-Acquisition, the firms ended up on opposite side of the [Utah] Action did not automatically create a conflict of interest.” (Opposition, at p. 6:10-11.) Defendant M&S further stated that on January 5, 2024, Mr. Pickett explained the acquisition to Plaintiff and that the two firms would remain separate and continue “we would continue to have separate email servers and file servers so that neither firm would have access to the other's files, and that we would have separate budgets and financial statements.” (Pickett Decl., ¶ 11.) Mr. Pickett asserts that while “Abdalla was concerned, [] he told me he was comfortable moving forward with my engagement.” (Ibid.) Plaintiff disputes this. (Abdalla Supp. Decl., ¶ 5.)

Based on the above, Defendant M&S asserts that Plaintiff cannot show that the Engagement Agreement was breached as there was no exposure of confidential information or a conflict of interest.

As the party seeking the injunction, Plaintiff bears the burden of showing that when M&S became the parent company of Lone Peak, they ceased to be separate entities such that there now exists conflicts of interest between Plaintiff and M&S. “In general, a parent company is not liable on a contract signed by its subsidiary ‘simply because it is a wholly owned subsidiary.’ ” (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 861.)

Mere Agency or Instrumentality. When one corporation (the parent company) owns the shares of another (the subsidiary) and exercises sufficient control over the latter's activities, the parent may be liable on the contracts or for the torts of the subsidiary, which is treated as a mere agency or “instrumentality” of the parent. Stock ownership alone is not enough; the subsidiary may be wholly owned, but may nevertheless be independently managed and controlled, and in that case the separate corporate entity will be recognized. However, if in addition to ownership there is relatively complete management and control by the parent, equity may in the interests of justice disregard the entity and treat the corporations as one.

(9 Witkin, Summary of Cal. Law (11th ed. 2017) Corporations, § 19 Liability of Parent for Obligations of Subsidiary [italics original].)

As the party seeking the injunction, the burden is on Plaintiff to show that M&S and Lone Peak do not maintain separate corporate formalities and “the nature and extent of the control exercised over the subsidiary by the parent is so pervasive and continual that the subsidiary may be considered nothing more than an agent or instrumentality of the parent” that Lone Peak’s separate corporate status should be disregard and the court should “reasonably deem the subsidiary an agent of the parent under traditional agency principles.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 541.) “‘Control’ in this context means the degree of direction and oversight normal and expected from the status of ownership; it comprehends such common characteristics as interlocking directors and officers, consolidated reporting, and shared professional services.” (Id., at pp. 540-541.) The parent company “must veer into management by the exercise of control over the internal affairs of the subsidiary and the determination of how the company will be operated on a day-to-day basis.” (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 797.)

Plaintiff offers no evidence that Plaintiff’s confidential information has been disclosed or is at risk of disclosure. “An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)

Plaintiff offers a website printout asserting that it shows that Mr. Curties and Mr. Pickett both appear as senior people at M&S’s Salt Lake City senior team. (Abdalla Decl., ¶ 24, Ex. C.) First, the website printout is “hearsay when offered to prove the truth of matters stated therein.” (Stoneking v. Briggs (1967) 254 Cal.App.2d 563, 576.)

Second, the website printout of M&S is insufficient to show that M&S exercises complete control over Lone Peak’s day-to-day activities such that an actual conflict of interest exists between M&S, as the parent company of Lone Peak, and Plaintiff. Plaintiff fails to put forth evidence that Lone Peak is now an agent of M&S. Plaintiff offers no evidence that M&S has or plans to disclose Plaintiff’s confidential information in the Utah Action with Mr. Curtis. Plaintiff fails to show that Mr. Curtis has access to Plaintiff’s confidential information and that such access is not based merely on the fact that M&S is the parent company of both Lone Peak and Rocky Mountain. Plaintiff also fails to show that Mr. Pickett is a managing agent of M&S such that his knowledge can be imputed to M&S.

Plaintiff offers more evidence on reply, which the court does not consider, and which if considered would be insufficient to find that M&S and Lone Peak are not separate corporate entities or that there is a probable risk of disclosure of Plaintiff’s confidential information. “Points raised for the first time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.) The fact that Lone Peak’s annual statement was executed by “Jeff Settembrino, Chairman” who also appears as a “Chairman” for M&S is insufficient to show that M&S is in an agency relationship with Lone Peak. (Leichter Supp. Decl., ¶¶ 2-6 Ex. B, C.) “The parent's general executive control over the subsidiary is not enough; rather there must be a strong showing beyond simply facts evidencing “the broad oversight typically indicated by [the] common ownership and common directorship” present in a normal parent-subsidiary relationship.” (Sonora, supra, (2000) 83 Cal.App.4th at p. 542.)

Finally, the court does not consider if the Utah trial court’s denial of Plaintiff’s request to remove Mr. Curtis as a receiver has a preclusive effect on this Motion as the evidence provided by Defendant fails to show the Utah court decided the issue on the merits.

In addressing this second prong, the court evaluates the harm the plaintiff is likely to sustain if the preliminary injunction is denied compared to the harm the defendant is likely to suffer if the injunction issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) The general principle is that a court may not issue an injunction if it finds the moving party has no chance of succeeding on the merits, because then an injunction only postpones an inevitable loss on the merits. (See 14859 Moorpark Homeowner's Ass'n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408.)

Here, the court agrees that Plaintiff would suffer harm if his confidential information were disclosed. However, because the record before the court reflects that M&S and Lone Peak are separate entities, the court is not persuaded that enjoining M&S’s conduct will likely prevent Plaintiff from suffering harm. “As noted, a principal objective of a preliminary injunction ‘is to minimize the harm which an erroneous interim decision may cause’ [citation], and thus a court faced with the question whether to grant a preliminary injunction cannot ignore the possibility that its initial assessment of the merits, prior to a full adjudication, may turn out to be in error.” (White v. Davis (2003) 30 Cal.4th 528, 561 [italics original].)

If Defendant, through its subsidiary Rocky Mountain, is not able to participate in the [Utah] Action, it will lose the fees Curtis earns as a court-appointed Receiver. As no trial date has been sent, Defendant anticipates that the additional fees from Curtis’ ongoing receiver work will be significant.

As Defendant M&S is only the parent company of Rocky Mountain and Lone Peak, the court is not persuaded an injunction enjoining it from participating in Utah Action will result in actual harm to M&S as the parent company or that such harm will be greater than any harm Plaintiff may suffer due to the discourse of his confidential information. If M&S shares “officers, directors, agents, employees, representatives, attorneys and successors, and each and all persons acting in concert or participating with them and each of them” with its subsidiaries, then Plaintiff’s concern about disclosure is not speculative, and presents an actual risk of disclosure due to the intermingling of M&S and Lone Peak staff. Defendant M&S also fails to explain how any damages it may suffer due to the granting of the injunction are not mediated by Plaintiff having to provide an undertaking. (CCP, 529(a).)

Therefore, because the likelihood on the merits and the balance of harm are “two interrelated factors” the court may grant Plaintiff’s injunction on the basis that Plaintiff will suffer irreparable harm and “‘[t]he ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.’ ” (White, supra, 30 Cal.4th at p. 554 [italics original].) “To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.” (Ibid.)

Therefore, Plaintiff’s request for a preliminary injunction is granted. Plaintiff is ordered to provide an undertaking. (CCP § 529(a).)

Plaintiff’s request for a preliminary injunction is granted. Plaintiff is ordered to provide an undertaking.

[1] The Engagement Agreement further provides: “This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah, in the jurisdiction of Salt Lake County, and shall be binding on and inure to the benefit of the parties hereto and their heirs, successors, and assigns.” (Compl., Ex. A at p. at p. 4; Abdalla Decl., Ex. A at p. 4.)