Judge Holly J. Fujie, Case BC709369 2022-10-14 Tentative Ruling

This order concerns two motions for summary judgment/adjudication (collectively, the “Motions”): (1) filed by Defendant Angelica Chavez (“Chavez”) (the “Chavez MSJ”); and (2) filed by Defendant Labornow, Inc. (“Labornow”) (the “Labornow MSJ”).

RESPONDING PARTY: Plaintiff Simplified Labor Staffing Solutions, Inc. (“Plaintiff”)

This action arises out of various disputes concerning employment and business relationships connected to several staffing entities. Plaintiff’s currently operative fifth amended complaint (the “5AC”) alleges: (1) breach of contract; and (2) misappropriation of trade secrets. Both claims are alleged against Chavez, while only the second claim is alleged against Labornow.

Plaintiff’s objections to the evidence submitted in support of the Chavez MSJ numbers 2, 4, and 5 are SUSTAINED. Plaintiff’s objections numbers 1 and 3 are OVERRULED. In addition, the Court declines to consider the additional evidence submitted with Chavez’s reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536-37.)

Chavez’s objections to Plaintiff’s evidence numbers 3, 4, 5-12, 18, and 19 are SUSTAINED. Chavez’s objections numbers 1, 2, and 13-17 are OVERRULED.

Plaintiff’s objections to the evidence submitted in support of the Labornow MSJ numbers 1 (to the extent that the evidence is offered as proof of the contents of the writings at issue; see Evid. Code §§ 1521, 1523) and 4 are SUSTAINED. Plaintiff’s objections numbers 2, 3, 5, and 6 are OVERRULED. The Court declines to consider the additional evidence submitted with Labornow’s reply papers. (See Jay v. Mahaffey, supra, 218 Cal.App.4th at 1536-37.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Significantly, as to each claim as framed by the complaint, the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. (Doe v. Good Samaritan Hospital (2018) 23 Cal. App. 5th 653, 661.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff argues that the Chavez MSJ should be denied because it does not comply with the notice and separate statement requirements of California Rules of Court (“CRC”), rule 3.1350(b). Under CRC, rule 3.1350(b), if summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (CRC, r. 3.135(b).)

Here, the Notice of Motion specifies that the grounds for the Chavez MSJ with respect to the breach of contract claim are that the contract is subject to the complete defense of undue influence; (2) the contract is not supported by consideration; and (3) the contract is unenforceable or void as a matter of law. With respect to the second cause of action, Chavez contends that the alleged trade secrets at issue in the 5AC do not constitute a trade secret as defined by the California Uniform Trade Secret Act (“CUTSA”). The Separate Statement (the “Chavez SS”) filed concurrently with the Chavez MSJ is not divided into causes of action and there is no identification of what each purportedly Undisputed Material Fact (“UMF”) is being offered to prove. The Court finds that Chavez MSJ is therefore not in full compliance with CRC, rule 3.135. The organization of the Chavez SS, in addition to the Notice’s failure to differentiate which arguments and/or which defenses apply to which contractual agreement, make the moving papers sometimes difficult to parse. This problem is compounded by the occasionally disjointed organization of the arguments and supporting citations in the Chavez MSJ itself, as the Chavez MSJ refers to some UMFs more than once and in connection to various contentions. The Court has exercised its discretion, however, and has considered the Chavez MSJ on its merits.[1]

The elements of a breach of contract claim are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The 5AC alleges that Chavez and Defendant Cynthia Stopani (“Stopani”) breached two separate contractual obligations (collectively, the “Agreements”): (1) their respective employee non-solicitation agreements (the “Employee Agreements”) entered into or about November 2017 which contain confidentiality, non-compete and non-solicitation provisions; and (2) a settlement agreement that disposed of an earlier lawsuit pending in Orange County (the “Settlement Agreement”) entered into on around July 8, 2018 by Plaintiff, Ashish Wahi (“Wahi”), Stopani, Chavez and non-party Citistaff Solutions, Inc. (“Citistaff”), which, among other things, restricted Stopani and Chavez from using Plaintiff’s proprietary trade secrets in order to solicit Plaintiff’s clients for their personal gain. (See 5AC ¶¶ 8-9, Exhibits A-B.)[2]

Undue influence occurs: (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (2) in taking an unfair advantage of another's weakness of mind; or (3) in taking a grossly oppressive and unfair advantage of another's necessities or distress. (Civ. Code § 1575.) Undue influence involves a type of mismatch which our statute calls unfair advantage. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526, 1540, quoting Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 132-33 [disapproved on other grounds in Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 929].) Whether a person of subnormal capacities has been subjected to ordinary force or a person of normal capacities subjected to extraordinary force, the match is equally out of balance. If will has been overcome against judgment, consent may be rescinded. (Id.) However, overpersuasion is generally accompanied by certain characteristics which tend to create a pattern. (Id.) The pattern usually involves several of the following elements: (1) discussion of the transaction at an unusual or inappropriate time; (2) consummation of the transaction in an unusual place; (3) insistent demand that the business be finished at once; (4) extreme emphasis on untoward consequences of delay; (5) the use of multiple persuaders by the dominant side against a single servient party; (6) absence of third-party advisers to the servient party; and (7) statements that there is no time to consult financial advisers or attorneys. (Id.) If a number of these elements are simultaneously present, the persuasion may be characterized as excessive. (Id.) The issue of whether or not undue influence has been exerted frames a question of fact. (In re Marriage of Dawley (1976) 17 Cal.3d 342, 354.) A defendant moving for summary judgment has the initial burden to show that undisputed facts establish an affirmative defense. (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778.)

Chavez contends that the undue influence defense applies because of her inferior bargaining power and legal sophistication, her lack of representation, and minimal time to review the terms of the Settlement Agreement. (See, e.g., UMFs 1, 16-19, 21.) The Court finds that Chavez has not established that there are no triable issues of fact as to the affirmative defense. The evidence cited in the Chavez MSJ itself calls into question Chavez’s distillation of the evidence in the SS. For example, Chavez’s own evidence indicates that she did receive a letter from an attorney (in the form of a liability waiver) which opined on the Settlement Agreement’s prudence. (See UMF 17-18.) Moreover, the Court notes that Plaintiff presents evidence which also prevents a finding that there are no triable issues of material fact as to the availability of the undue influence affirmative defense. (See, e.g., Additional Undisputed Material Facts (“AUMF” or “AUMFs”) 37-38.)

Chavez presents evidence that she has never recruited customers or employees for staffing companies. (See Declaration of Angelica Chavez (“Chavez Decl.”) ¶ 22.) This evidence is insufficient to negate the scope of the alleged breach as stated in the 5AC, which alleges that Chavez breached the Settlement Agreement by “using and disclosing” Plaintiff’s trade secrets to solicit Plaintiff’s customers. (See 5AC ¶ 11.) In addition, the deficiencies in the SS previously identified as well as the Chavez MSJ’s citation to the facts stated therein prevent the Court from being able to ascertain the precise nature of what the facts are being offered to prove or how they connect to the arguments Chavez raises. The Court therefore is unable to determine whether there are triable issues of fact as to whether any information Chavez may have disclosed was a protected trade secret. The Court therefore finds that Chavez has not met her burden to establish that there are no triable issues of fact as to whether she breached the Settlement Agreement.

Preliminarily, the Court finds that there is a triable issue of fact as to whether Chavez ever signed the Employee Agreements as there is evidence that Wahi has personally seen a signed copy. (See Opposition SS, UMF 13.)

An employer may unilaterally alter the terms of an employment agreement, provided such alteration does not run afoul of the Labor Code. (Schachter v. Citigroup (2009) 47 Cal.4th 610, 619.) The at-will presumption authorizing an employer to discharge or demote an employee similarly and necessarily authorizes an employer to unilaterally alter the terms of employment, provided that the alteration does not violate a statute or breach an implied or express contractual agreement. (Id. at 620.) As to the promisee, in general, any act or forbearance, including continuing to work in response to the unilateral promise, may constitute consideration for the promise. (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 10.)

The Employee Agreements provide: “in consideration of CORPORATION employing EMPLOYEE at this time, which employment CORPORATION may terminate at will, EMPLOYEE hereby agrees as follows… .” (5AC, Exhibit B at 1.)

Chavez presents evidence of Wahi’s June 15, 2021 deposition testimony, in which he states that he was unsure of the consideration Chavez received in exchange for entering the Employee Agreements. (UMF 15.)[3] Plaintiff presents evidence of July 20, 2021 errata sheet indicating that Wahi’s testimony should have stated that he was unsure of what Chavez received, aside from continued employment. (See Opp. SS, UMF 15.)

The trial court may disregard a party's declaration or affidavit only where it and the party's deposition testimony or discovery responses are contradictory and mutually exclusive

or where the declaration contradicts “unequivocal admissions” in discovery. (Minish v. Hanuman Fellowship) 214 Cal.App.4th 437, 460.) Conversely, a summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence. (Id.)

The Court finds that Wahi’s deposition testimony and subsequent correction are not sufficiently contradictory or mutually exclusive and declines to disregard the correction to the testimony. The Court therefore finds that there are triable issues of fact as to whether the Employee Agreements were supported by consideration.

Any contract whose object is the violation of an express provision of the law is unlawful, and the part of the contract that is unlawful is void. (See Civ. Code §§ 1667, subd. (1), 1599.) A severability provision will evidence the parties’ intent that, to the extent possible, the valid provisions of the contracts be given effect, even if some provision is found to be invalid or unlawful. (Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1230.)

Business and Professions Code section 16600 provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” (Bus. & Prof. Code § 16600.) California courts have consistently declared Business and Professions Code section 16600 to be an expression of public policy which ensures that every citizen retains the right to pursue any lawful employment and enterprise of his or her choice. (See, e.g., Kelton v. Stravinski (2006) 138 Cal.App.4th 941, 946; D’sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 933.) Business and Professions Code section 16600 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. (Techno Lite, Inc. v. Emcod, LLC (2020) 44 Cal.App.5th 462, 471.) However, the statute does not affect limitations on an employee's conduct or duties while employed. (Id.) While California law does permit an employee to seek other employment and even to make some “preparations to compete” before resigning, California law does not authorize an employee to transfer his loyalty to a competitor. (Id.)

Here, while the Employee Agreements impose limitations on conduct following a term of employment, they also restrict conduct during an employment term and contain a severability clause. Chavez has therefore not met her burden to show that there are no triable issues of fact as to the legality of the Employee Agreements.

Furthermore, the Court finds that Chavez has not met her burden to establish that she did not breach the Employee Agreements for the reasons set forth with respect to the Settlement Agreement. The Court therefore DENIES the Chavez MSJ as to the first cause of action.

The elements of a cause of action for misappropriation of trade secrets under CUTSA are: (1) the plaintiff’s possession of a trade secret; (2) the defendant's misappropriation of the trade secret, meaning its wrongful acquisition, disclosure, or use; and (3) resulting or threatened injury to the plaintiff. (Silvaco Data Sys. v. Intel Corp. (2010) 184 Cal.App.4th 210, 220, disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.) Under CUTSA, a trade secret has four elements: (1) it must be comprised of “information”; (2) it must not be “generally known”; (3) it must derive “independent economic value” from the fact that it is a secret; and (4) it must be the subject of “reasonable” efforts to “maintain its secrecy.” (Civ. Code § 3426.1, subd. (d); see Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263.) A misappropriation includes disclosure or use of a trade secret of another without consent. (See Civ. Code § 3426.1 subd. (b).)

For the reasons stated with respect to the sufficiency of the evidence of whether Chavez breached the Agreements by disclosing Plaintiff’s trade secrets, the Court finds that the Chavez MSJ has not met its burden to demonstrate that there is no triable issue of material fact concerning the existence of Plaintiff’s alleged trade secrets.

Labornow is a domestic light industrial staffing company. (See UMF 3; Declaration of Michael Powers (“Powers Decl.”) ¶ 4.) Trinity Risk Management, LLC (“Trinity”) is a New Hampshire Limited Liability Company specializing in risk aggregation (a process allowing member companies to obtain insurance coverage they could not procure on their own). (Id.) Harold J. Knight (“Knight”) was the President and CEO of Trinity, Labornow, and Knight Management Group, Inc. (“KMG”) (collectively, the “Trinity-Labornow Parties”). (UMF 10.)^{^[4]}

Wahi met Samuel DeLois (“DeLois”) in March 2016 because he was interested in owning a temporary staffing business and was looking for, in part, workers’ compensation coverage. (UMF 5.) Wahi and DeLois decided to create a corporate entity that would allow Wahi’s company to receive workers’ compensation coverage through Labornow’s participation in the Trinity Risk Management Program; Knight was interested in the proposal. (See UMF 7, 11.) Thereafter, on or about May 26, 2016, Knight and Wahi incorporated Knight Wahi, LLC (“KW”). (UMF 12.) KW was added to Labornow’s insurance policy so that Plaintiff could obtain workers’ compensation insurance. (UMF 14.)

On or about May 26, 2018, Wahi and Knight executed an Operating Agreement (the “OA”) on behalf of KW. (UMF 17.)^{^[5]} The OA includes a provision providing: “The Members, their agents, representatives and affiliates may engage or invest in, and devote their time to, any other business venture or activity of any nature and description (independently or with others), whether or not such other activity may be deemed or construed ot be in competition with the LLC. The LLC shall not have any right by virtue of this Agreement or the relationship created hereby in or to such other venture or activity (or to the income or proceeds derived therefrom), and the pursuit thereof, even if competitive with the business of the LLC, shall not be deemed wrongful or improper.” (Declaration of Samuel DeLois (“DeLois Decl.”) ¶12, Exhibit A.) at ¶ 1.05(a).)^{^[6]}

The OA further provides: “Whenever a Member is required or permitted to make a decision, take or approve an action, or omit to do any of the foregoing, then the Members shall be entitled to consider only such interests and factors, including its own, as it desires, and shall have no duty or obligation to consider any other interests or factors whatsoever.” (Id. at ¶ 1.05(b).)

On or about May 2, 2017, Wahi provided Powers with Plaintiff’s accounts payable

information and instructed a payroll factoring company, Advance Payroll Funding (“Advance”),

to give Powers access to their reporting functions so that Powers could assess Plaintiff’s economic condition. (UMF 19; Powers Decl. ¶¶ 8-9.) The Trinity-Labornow Parties received weekly reports from Advance regarding Plaintiff through May 12, 2020. (See Powers Decl. ¶¶ 9, 11, 14, Exhibits 1-4.)

After Plaintiff defaulted on several loans, DeLois notified Wahi that he was withdrawing from KW. (UMF 26.) DeLois notified Plaintiff’s insurance providers of the exit from KW on June 10, 2018. (UMF 27.)

After Stopani and Chavez were terminated by Plaintiff, Stopani approached Labornow about their desire to work for Labornow. (UMF 36.) In August 2018, Stopani and Chavez joined Labornow. (UMF 37.) Labornow did not ask Stopani or Chavez to provide Labornow with Plaintiff’s customer or client lists. (UMF 28.)

The Labornow MSJ argues that because of its joint enterprise with Plaintiff, Labornow always had access to the allegedly misappropriated information; therefore, Labornow argues, Plaintiff’s alleged trade secrets could not be shared by improper means or without express or implied consent. Labornow also argues that the OA evinces the intent to allow the members of KW and their respective businesses to compete with KW.

The Court is not persuaded by these arguments. The OA provides that KM members and their entities are not precluded from engaging in acts that are competitive to KM, not to each other. The provision concerns competition, not misappropriation of trade secrets. Furthermore, regardless of the Opposition’s dispute over co-ownership of Plaintiff, the language of Civil Code section 3426.1 does not bar a joint trade secret owner from alleging a misappropriation claim against its co-trade secret owner. (See, e.g., Morton v. Rank America, Inc. (1993) 812 F.Supp.1062, 1074-75.)

Reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on a “need to know basis,” and controlling plant access. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1454.) Whether a party claiming a trade secret undertook reasonable efforts to maintain secrecy is a question of fact. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 306.)

There are triable issues of fact as to Plaintiff’s efforts to maintain secrecy of its designated trade secrets. For example, Plaintiff has provided evidence that it required its employees to enter into confidentiality agreements. (See AUMF 45.) In addition, the Court is unable to make a determination on the reasonableness of Plaintiff’s ongoing disclosure of its records to Labornow via the Advance reports through May 2020. First, Plaintiff disputes the content of the disclosed documents and the Powers Declaration does not set forth sufficient evidence of the contents of the documents to allow the Court to compare their contents to Plaintiff’s designated trade secrets. (See Evid. Code §§ 1521, 1523.) Second, Plaintiff has provided evidence that it began providing the reports from Advance subject to an agreement that the information contained in the weekly documents would remain confidential. (Declaration of Clayton Hix (“Hix Decl.”), Exhibit E at 177:14-22.)

In order to qualify as a trade secret, the information must be secret and must not be of public knowledge or of a general knowledge in the trade or business. (AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc. (2018) 28 Cal.App.5th 923, 943 (“AMN”).) Except as provided in subdivision (b), the customer list, including the names, addresses and identity of all employer customers who have listed job orders with an employment agency within a period of 180 days prior to the separation of an employee from the agency and including the names, addresses and identity of all applicant customers of the employment agency, shall constitute a trade secret and confidential information of, and shall belong to, the employment agency. (Bus. & Prof. Code § 16607, subd. (a).)

Labornow contends that Plaintiff’s customer/contact lists are not trade secrets because the saturation of the temporary staffing and employment agency industry makes its designated trade secrets “arguably” ascertainable by proper means. Labornow has not provided evidence of the nature or availability of the information contained in Plaintiff’s designated trade secrets or in the temporary staffing agency generally. Labornow’s reliance on AMN is not convincing in the absence of additional evidence. The AMN court’s determination that the customer list at issue was not a secret was based in part on undisputed evidence regarding the defendant’s awareness of and ability to independently learn the specific information that was allegedly misappropriated. (AMN, supra, 28 Cal.App.5th at 945.) The AMN court also found that the evidence did not establish that the contact information in the plaintiff’s purported trade secret related to its “customers” as opposed to its “employees.” (Id. at 944.) Labornow has not submitted comparable evidence in support of its MSJ.

Labornow’s Acquisition of Plaintiff’s Designated Trade Secrets from Stopani/Chavez

Plaintiff presents evidence of communications between Powers, Stopani, and Chavez that occurred both prior to and after their employment relationships with Plaintiff ended. For example, on July 26, 2018, Stopani emailed Powers information about the Settlement Agreement; minutes later, Powers sent DeLois an email that appears to forward Stopani’s email and discuss the Settlement Agreement and its apparent restrictions on Stopani and Chavez from soliciting business from Plaintiff’s customers. (See Hix Decl., Exhibit O.) In the email to DeLois, Powers wrote, in part:

“Anyway, I think the clause is nonsensical related to Stopani and Chavez. Under a reading as it is, it would prohibit them from soliciting business from their own customers.

SO, it is a mistake, or it is a thinly veiled attempt to hide a non compete clause in another agreement.

Plaintiff also provides evidence that Chavez communicated with Powers and provided Labornow with Plaintiff’s files and customer information. (See AUMF 47.) For example, on July 27, 2018, Powers emailed Chavez contract proposals for prospective clients, which he inferred would be presented bto those clients. (See Hix Decl., Exhibit A at 24:15-25:12; see also Hix Decl., Exhibit P.)

Plaintiff’s evidence demonstrates a factual issue as to whether Labornow approached Stopani and Chavez about acquiring Plaintiff’s customer list or knew that it was using information that Stopani and Chavez acquired by potentially improper means.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] As previously stated, the Court liberally construes the evidence in support of the party opposing summary judgment. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

[2] The 5AC appears to mistakenly cite to the incorrect exhibits to incorporate the Agreements; despite the allegations in the 5AC, the Chavez MSJ and Chavez Opposition do not dispute that the Employee Agreements are incorporated as Exhibit B and the Settlement Agreement is incorporated as Exhibit A. Both Chavez and Plaintiff occasionally refer to the Settlement Agreement as the “Tripartite Agreement.”

[3] Wahi is Plaintiff’s President and CEO.

[4] KMG is an affiliate of Labornow and Trinity. (See Powers Decl. ¶ 3.) Powers is an Operations Analyst for KMG. (Id.)

[5] The Court notes that the OA states that its effective date is May 26, 2016. (See id.)

[6] DeLois is the current President and CEO of Trinity. (DeLois Decl. ¶ 3.)

[7] The Court incorporates its recitation of applicable law for the second cause of action as sest forth in the analysis of the Chavez MSJ.