Cubic Corporation v. Los Angeles County Metropolitan Transportation Authority, 25STCP00325  

Tentative decision on application for preliminary injunction: denied unless Real Party served

 

Petitioner Cubic Corporation (“Cubic”) seeks a preliminary injunction that restrains and enjoins Respondent Los Angeles County Metropolitan Transportation Authority (“MTA”) from producing, pursuant to a California Public Records Act (“CPRA”) request, 32 documents that have been filed under seal.

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

 

A. Statement of the Case

1. Petition/Complaint

Cubic filed the Petition/Complaint (hereinafter, “Petition”) against Respondent MTA on January 28, 2025, alleging claims for mandamus and declaratory relief.  On February 4, 2025, Cubic filed a First Amended Complaint/Petition (“FAP”) adding inter alia Dan Balaban (“Balaban”) and Jiten Doe as Real Parties-in-Interest.  The FAP alleges in pertinent part as follows.

Since March 1, 2002, Cubic and MTA have contracted to upgrade MTA’s Universal Fare System ("the Contract").  FAP, ¶16.

On or about June 27, 2024, MTA authorized Cubic's proposal titled "TAP 2.0 Account-Based Processing, Open Payments and Mobile Enhancements" for an upgrade to the Universal Fare System.  FAP, ¶17. The parties, as an amendment to and as part of the underlying Contract, entered into the modification for the TAP 2.0 Upgrade (“Modification”).  FAP, ¶17.

Per section GC-39 of the Contract, MTA may only disclose information about Cubic that is "lawfully in the public domain at the time of disclosure"; "is disclosed with the prior written approval [of Cubic]"; or is "required by Law to be disclosed."  FAP, ¶18.  In the event of "litigation concerning the disclosure of any information," MTA's "sole involvement will be as a stakeholder, retaining the information until otherwise ordered by a court." FAP, ¶18.

The Modification provides the parties' agreement concerning the CPRA.  FAP, ¶19 (§13).  MTA must provide Cubic with timely notification of any third-party requests for disclosure.  FAP, ¶19.  Cubic then timely notifies MTA "whether and to what extent it objects to disclosure of TAP 2.0 Project Records."  FAP, ¶19.  Cubic may also "seek the appropriate judicial relief under the CPRA."  FAP, ¶19.  “[I]n the event of any proceeding ... concerning ... the disclosure of any of TAP 2.0 Project Records, [Cubic] understands and agrees that MTA's sole involvement and responsibility will be as a custodial stakeholder, retaining the TAP 2.0 Project Records until otherwise ordered by a court of competent jurisdiction."  FAP, ¶19.  In the event of a CPRA request, MTA "shall use its reasonable efforts to protect [Cubic's] proprietary information."  FAP, ¶20.

On or around May 17, 2024, MTA received a CPRA request regarding access to records pertaining to "a proposed contact (sic.) modification for vendor Cubic Transportation Systems." FAP, ¶21. Another CPRA requester sought "any contracts (original + any relevant amendments) MTA has with Cubic Corporation (vendor of revenue/fare collection equipment and services).” FAP, ¶21.

Cubic began working with MTA on the CPRA requests on June 4, 2024.  FAP, ¶22.  MTA notified Cubic that it was gathering responsive records and would reach out to Cubic before "anything is actually provided."  FAP, ¶22.

On June 21, 2024, Cubic provided MTA with suggested redactions to responsive documents for the CPRA request.  FAP, ¶23.  Cubic redacted information related to its pricing and information, which constitutes a trade secret or is commercially sensitive. FAP, ¶23.

On December 30, 2024, MTA advised Cubic that it would "not redact the pricing tables mentioned [in Cubic's correspondence] as [it] deem[s] these to be public," absent an order to the contrary.  FAP, ¶24.  The proposed production was set for January 29, 2025. FAP, ¶24.

Cubic alleges that its pricing information is confidential and protected by trade secret law, and its disclosure will cause Cubic immediate and irreparable harm.  FAP, ¶¶ 25-26.

Cubic prays for mandamus and declaratory relief (plus the remedy of injunction) to prevent MTA from disclosing its proprietary pricing and other confidential information.  FAP at 9-10.

 

2. Course of Proceedings

On February 5, 2025, the court granted Cubic’s ex parte application to seal the 32 documents at issue. 

On February 6, 2025, the court granted Cubic’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) restraining disclosure of certain records under the CPRA.  The court ordered service of the summons, Petition, moving papers, and TRO/OSC on all Defendants by February 13, 2025, with proofs of service to be filed by February 18, 2025.

Proofs of service on file shows that Cubic served Los Angeles County and MTA with the Petition and moving papers by personal service on January 30, 2025.

No proof of service is on file for Real Parties Balaban and Doe.  As of February 20, 2025, no opposition has been filed.

 

B. Governing Law

1. CPRA

The CPRA, located at Government Code[1] section 7920 et seq. (formerly 6250 et seq.)[2] was enacted in 1968 to safeguard the accountability of government to the public.  San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.3d 762, 771-72.  The CPRA’s purpose is to increase freedom of information by giving the public access to information in the possession of public agencies.  CBS. Inc. v. Block, (1986) 42 Cal.3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations.  California State University Fresno Assn., Inc. v. Superior Court, (2001) 90 Cal.App.4th 810, 823.

The CPRA makes clear that “every person” has a right to inspect any public record. §7922.525(a). The term “public record” is broadly defined to include “any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §7920.530.

Upon receiving a request for a copy of public records, the agency shall determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, though that deadline may be extended up to 14 days for “unusual circumstances.” §7922.535(a), (b).  If the agency determines that the request for records is denied in whole or in part, the agency must respond in writing and justify withholding any record by demonstrating that the record is exempt or that the facts of the case the public interest served by not disclosing clearly outweighs the public interest in disclosure.  §§ 7922.540, 7922.000.

If the agency determines that the requested records are subject to disclosure, it shall make the records promptly available upon payment of fees for direct costs of duplication or a statutory fee, if applicable.  §7911.530.  There is no deadline expressed in number of days for producing the records.  Rather, section 7911.530 says the agency “shall make the records promptly available.” Section 7922.500 provides that nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”

A claim to compel compliance with a CPRA public records request may proceed through either mandamus or declaratory relief.  §7923.000. Because the petitioner may proceed through either mandamus or declaratory relief, the trial court independently decides whether disclosure is required.  See City of San Jose v. Superior Court, (1999) 74 Cal.App.4th 1008, 1018 (appellate court independently reviews trial court CPRA decision).  No administrative record is required, and the parties must submit admissible evidence.

Mandamus is available to compel compliance with the CPRA.  §§ 6258, 6259.  A petition for mandamus under the CPRA is a “special statutory proceeding” similar to, but different from, mandamus and “falls within the definition of a “special proceeding of a civil nature.”  City of Los Angeles v. Superior Court, (2017) 9 Cal.App.5^th 272, 285.  This statutory mandamus is not the equivalent of ordinary mandamus, and the remedy may not be denied because of other adequate remedy at law.  Wilder v. Superior Court, (1998) 66 Cal.App.4th 77, 82-83. 

 

2. Reverse-CPRA Actions

The agency may not circumvent CPRA procedure by seeking declaratory relief to determine its own duty for disclosure of requested documents.  Fialrsky v. Superior Court, (2002) 28 Cal.4^th 419, 423.  However, authority also exists for a reverse-CPRA action in which a third party seeks traditional mandamus to prevent a public agency from releasing information pursuant to a CPRA request.  Marken v. Santa Monica-Malibu Unified School Dist., (“Marken”) (2012) 202 Cal.App.4th 1250, 1267.  Marken admitted that permitting a reverse-CPRA action is not “free from doubt” (id. at 1265), and the California Supreme Court has stated that it “remains open” whether CPRA procedure is the exclusive means of determining whether public records must be disclosed.  Long Beach Police Officers Assn. v. City of Long Beach, (2014) 59 Cal.4^th 59, 66, n.2. 

Nonetheless, Marken permitted reverse CPRA lawsuits.  Marken noted that there is no other remedy for an interested party who opposes an agency’s decision to improperly release confidential documents, and a reverse-CPRA will not impair the procedural protections available to the requesting party.  202 Cal.App.4^th at 1265-68.  Marken also noted that reverse-Freedom of Information Act (“FOIA”) actions are authorized by the FOIA statute itself.  Id. at 1266.  See, e.g., CAN Financial Corp. v. Donovan (D.C. Cir. 1987) 830 F.2d 1132, 1133, n.1;[3] Artesion Industries, Inc. v. Department of Health & Human Services, (D.C. 1986) 646 F.Supp. 1004, 1005 (approving consultation between federal agencies before disclosure). 

In City of Los Angeles v. Metropolitan Water District of Southern California, (2019) 42 Cal. App. 5^th 290, the appellant challenged an attorneys’ fees award in a reverse-CPRA action.  The court recognized that reverse-CPRA actions have created problems for the requesting parties, but there had been no appeal of that specific issue.  Id. at 310.  Even if it treated the matter as a pure legal issue that may be raised on appeal, the court saw no basis to find that any person or entity seeking to stop the disclosure of private information of individuals would lack standing to bring an action to do so.  Id. at 311.  The CPRA itself does not forbid actions to prevent disclosures alleged to violate privacy rights.  Ibid.  Additionally, current law does not clearly limit reverse-CPRA actions to requests which involve the private information of individuals.  Ibid.  While different considerations may be involved for reverse-CPRA actions that are not based on the protection of privacy rights, the court declined to opine on the viability of such actions.  Ibid. 

Marken is binding on this court, and it held that a reverse-CPRA lawsuit is authorized by the law on any legal theory that would prevent agency disclosure of confidential documents.  See Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 455 (decisions of every division of the district courts of appeal are binding upon all superior courts of California).

 

3. Preliminary Injunctions

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.  CCP §525.  An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.  See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[4] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.  Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.  See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion.  The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[5] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.  See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.  Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.  See CCP §527(a).  For this reason, a pleading alone rarely suffices.  Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).  The burden of proof is on the plaintiff as moving party.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.  CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. AndersonCottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.  Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.  Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.  The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

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); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

 

C. Statement of Facts

1. deKozan Declaration

Cubic's pricing information was provided to MTA as part of the contracting process.  In addition to a total contract price, Cubic provided detailed line item labor and supply costs, including information regarding proprietary methods.  deKozan Decl., ¶3.

MTA’s disclosure of Cubic's detailed pricing information would cause Cubic immediate and irreparable harm.  deKozan Decl., ¶4.  Cubic does not object to the total price of the project at issue being disclosed in response to the CPRA requests.  However, Cubic's specific line-item pricing information would easily reveal Cubic's method of operating, level of efforts, and resources required for certain types of projects and execution plans. Such disclosure could significantly jeopardize forward viability of the company and provide competitors an unfair business advantage.  deKozan Decl., ¶5.

Cubic takes great efforts to ensure that its detailed pricing data remains confidential, including entering into confidentiality and non-disclosure agreements with employees and vendors, only providing such data to those within Cubic with a need to know, and password protecting the information within Cubic's system.  deKozan Decl., ¶6.

Cubic provided the pricing information to MTA in confidence based on a specific MTA request and with the confidence that the Contract protected such information from disclosure. Cubic otherwise would never have disclosed such granular, detailed, confidential pricing information.  deKozan Decl., ¶7.

Through demarcation of a confidential stamp on each document, Cubic and MTA had an agreement that neither the documents nor their information could be reproduced transferred, used, or disclosed to any third parties.  deKozan Decl., ¶8.  The pricing information at issue is so sensitive that only select Cubic employees have access to the information.  deKozan Decl., ¶5. 

All documents at issue here which LA Metro plans to disclose in their entirety were marked by Cubic as proprietary and confidential when provided to MTA. The typical mark on the documents reads: "This document contains proprietary information estimated, originated and owned by Cubic Transportation Systems, Inc and is intended for specific recipients at [MTA]. Neither this document nor the information disclosed herein shall be reproduced, transferred used or disclosed to any third parties or non-recipients for any purposes except as specifically authorized in writing by Cubic Transportation Systems."  deKozan Decl., ¶20.

 

2. Supplemental deKozan Declaration

On or around June 27, 2024, MTA accepted Cubic's proposal for an upgrade of the existing TAP System as a sole source contract amendment to an existing contract.  Supp. deKozan Decl., ¶3.

Over the past two decades, Cubic and MTA have issued several change notices to their 2002 Contract, each time resulting in a contract modification for additional work scope.  Supp. deKozan Decl., ¶4.  For each modification, MTA issued a change notice request, to which Cubic responded with a proposal and justification of price that includes detailed line item costs for work requirements so that MTA can see how Cubic builds its price based on costs and Cubic's margin. Supp. deKozan Decl., ¶5.

There is a different process for a sole source negotiated change to a pre-existing contract, such as the TAP 2.0 System at issue here, and a change order process where MTA is seeking competitive bids from the market. Cubic gave MTA its first proposal on September 15, 2023.  Based on that presentation and three rounds of proposals and discussions, MTA's Board approved the project on June 27, 2024.  MTA awarded Cubic the project on November 1, 2024.  Supp. deKozan Decl., ¶6.

Over the course of negotiations, the parties decided to implement MTA's acceptance of this sole source negotiated change as if it were a change order. Thus, the existing provisions in the Contract and Modification applied.  Supp. deKozan Decl., ¶7.  MTA's practice for change orders requires Cubic to disclose detailed costing data that would be atypical of a competitive procurement.  Supp. deKozan Decl., ¶8.  MTA required Cubic to produce specific pricing information to verify costs and justify economic rationale, which was produced from September 2023 to November 2024.  Supp. deKozan Decl., ¶9. 

If MTA discloses the pricing information at issue here, companies wishing to capture business from Cubic would have unfair advantage in developing competing proposals using the detailed reports of Cubic's cost structures and levels of effort in delivering these systems.  Supp. deKozan Decl., ¶12.  This detailed pricing information is derived from the total business knowledge of Cubic in delivering these systems over the course of decades and this knowledge drives the number of hours by discipline and the cost per hour to develop and deliver such solutions.  Supp. deKozan Decl., ¶15.

The amount of effort and money spent by Cubic in developing this information is immeasurable and nearly impossible to replicate.  Supp. deKozan Decl., ¶16.  It would take several years, if not decades, for competitors to ascertain the level of effort to deliver these systems.  Supp. deKozan Decl., ¶17.  The information would allow competitors to construct competitive bids by applying such data to other procurements in the marketplace and provide insight to the level of internal resources which may be required for execution.  Supp. deKozan Decl., ¶19.

Cubic exerts extensive efforts to keep the information at issue secret by limiting internal access to employees only with a need-to-know status in the bid and finance teams.  Supp. deKozan Decl., ¶20.  Cubic only discloses the information to customers who are confirmed to be under non-disclosure provisions.  Supp. deKozan Decl., ¶21.  Cubic always provides the information to customers or others outside Cubic's organization with a confidentiality disclaimer marking.  Supp. deKozan Decl., ¶23.

Cubic maintains the information exclusively in-house under secure IT equipment. Supp. deKozan Decl., ¶24.  Cubic advises employees that the information is a trade secret and places all employees who have the potential of accessing this information under individual non-disclosure agreements.  Supp. deKozan Decl., ¶25.

This case is unlike other public records requests Cubic has responded to where pricing details only include high-level totals with single number proposals.  Supp. deKozan Decl., ¶27.

Of the 32 documents containing trade secret, proprietary, confidential, and commercially sensitive information and pricing data that MTA plans to disclose 13 documents were provided to MTA as part of the proposal process for the TAP 2.0 Upgrade from September 2023 to November 2024 and the remaining 19 documents were provided to MTA over the past five years related to various contracts and modifications.  Supp. deKozan Decl., ¶31.

 

3. Second Supplemental deKozan Declaration

Cubic presented its systems delivery to MTA through three rounds of proposals and discussions, including line-item pricing tables, relating to the sole source negotiated contract change for the TAP 2.0 System upgrade. 2nd Supp. deKozan Decl., ¶4.

Cubic’s systems delivery is comprised of a variety of disciplines carrying out specific tasks, including software engineering and development; mechanical engineering; electrical engineering; software integration; test; administration of necessary certifications; and management of each discipline. 2nd Supp. deKozan Decl., ¶5.

The level of effort as measured in hours in executing each of these disciplines is a direct function of the product design and its level of maturity. 2nd Supp. deKozan Decl., ¶5. Exposing the number of hours by discipline effectively discloses the level of maturity and guides an otherwise unknowing competitor as to the targets they need to hit or not exceed. 2nd Supp. deKozan Decl., ¶5.

Cubic’s resource allocation, including how it resources a project schedule, is distinct from general methods of doing business and commonly used industry formulas for setting prices.  2nd Supp. deKozan Decl., ¶6. The systems that Cubic sells are integrated solutions that incorporate a wide variety of software and hardware products and designs developed by both Cubic and third parties.  2nd Supp. deKozan Decl., ¶6.  There is no standard price for a system of this type because requirements vary as a function of system scale and agency requirements.  2nd Supp. deKozan Decl., ¶6. It is incumbent upon the bidder to have the knowledge and experience to assess how to meet these requirements and the level of effort to do so.  2nd Supp. deKozan Decl., ¶6.

Disclosing detailed line-item hours estimates relieves the otherwise unknowing competitor from needing to have this domain knowledge and experience to submit a competitive price.  2nd Supp. deKozan Decl., ¶6.  Cubic's resource allocation and allocation across a project schedule is a function of the state of solution design and the maturity of the product and its flexibility in responding to the customers unique requirements.  2nd Supp. deKozan Decl., ¶6.  The individual hour estimates that are driven by these factors translate directly into the schedule. 2nd Supp. deKozan Decl., ¶6. As such, Cubic's resource allocation and project schedule information is impossible to gather from general knowledge of the trade or even special knowledge by skilled workers.  2nd Supp. deKozan Decl., ¶6.

Each competitor seeking to win a bid against Cubic must assess a given set of system requirements in relation to the unique state of their own solution and the skills/competency of their own resources. 2nd Supp. deKozan Decl., ¶7. It is not unusual for pricing to vary significantly from bidder to bidder as different competitors will have differing levels of maturity, resulting in differences in the level of effort to deliver a solution, and differing costs of labor.  2nd Supp. deKozan Decl., ¶7.  Having detailed exposure to Cubic's costs related to Cubic's resource allocation and allocation across project schedules provides such competitors an unfair business advantage as they can target aspects of their systems requirements accordingly.  2nd Supp. deKozan Decl., ¶7.

Not only are the cost estimates at issue reflective of the specific requirements of delivering a solution responsive to MTA operations, they are highly indicative of how Cubic would similarly respond to other customers in the industry.  2nd Supp. deKozan Decl., ¶8.

The economic value to Cubic of keeping secret its knowledge of its employees' specialties, employee's productivity, and allocation of a certain number of such employees to certain projects for certain hours is invaluable. 2nd Supp. deKozan Decl., ¶9. If this information were to be disclosed, it would provide competitors with an unfair business advantage as they could tailor their systems requirements, systems management, and pricing to target customers away from Cubic's bids. 2nd Supp. deKozan Decl., ¶9. It is impossible to place a precise economic value on this as the economic impact of losing one contract can measure in the hundreds of millions.  2nd Supp. deKozan Decl., ¶9.

Cubic operates in a marketplace where awards of large metropolitan fare systems occur less than ten times per year globally.  2nd Supp. deKozan Decl., ¶10.  In many cases these awards are made in countries not accessible to Cubic.  2nd Supp. deKozan Decl., ¶10.  As such, losing a contract of this type is extremely significant to maintaining the backlog of work in process hours necessary to retain employees. 2nd Supp. deKozan Decl., ¶10.

 

D. Analysis

Petitioner Cubic seeks a preliminary injunction restraining the MTA from disclosing 32 documents pursuant to a CPRA request.  Cubic argues that these documents qualify as trade secrets and that its Contract requires that the MTA not disclose them.  No opposition has been filed.

The threshold issue is service.  On February 6, 2025, the court granted Cubic’s ex parte application for a TRO/OSC and ordered service of the summons, Petition, moving papers, and TRO/OSC on all Defendants by February 13, 2025, with proofs of service to be filed by February 18, 2025.  Proofs of service on file shows that Cubic served Los Angeles County and MTA with the Petition and moving papers by personal service on January 30, 2025.  No proof of service is on file for Real Parties Balaban and Doe. 

At the February 6, 2025 hearing, Cubic’s counsel stated that it had given Balaban notice but could not give Doe notice because MTA had no address for him.  This was acceptable and excuses service on Doe.  It does not excuse service on Balaban.  Cubic has not complied with the court’s order and the court cannot issue injunctive relief without resolution of this issue.

Assuming that Cubic clears up this issue by the hearing, the California Uniform Trade Secrets Act (“UTSA”) (Civ. Code §3426.1 et seq.) provides for issuance of an injunction to prevent the actual or threatened misappropriation of a trade secret.  Civ. Code §3426.1.  The UTSA provides for issuance of an injunction to prevent the actual or threatened misappropriation of a trade secret.  Civ. Code §3426.2; Central Valley General Hospital v. Smith, (2008) 162 Cal.App.4th 501 (threatened misappropriation may support injunction despite California’s rejection of inevitable disclosure doctrine).  The UTSA preempts common law claims based on the same nucleus of facts as the misappropriation of trade secrets claim, but not contractual and criminal remedies.  Civ. Code §3426.7; K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc., (2009) 171 Cal.App.4th 939, 958.  

A “trade secret” is information, including a formula, pattern, compilation, program, device, method, technique, or process, that (1) derives independent economic value from not being generally known to the public or competitors and (2) is the subject of reasonable efforts to maintain its secrecy.  Civ. Code §3426.1(d).  Actual or threatened misappropriation of a trade secret may be enjoined and the subject of a damages claim.  Civ. Code §3426.2(a).  An agreement between parties that something is a trade secret will not make it a trade secret if, in fact, it is not.  Ingrassia v. Barley, (1959) 172 Cal.2d 117, 123-24.

“Misappropriation” is defined as the (1) acquisition of a trade secret by a person who knew it was acquired improperly, (2) disclosure or use of a trade secret by a person who (a) used improper means to acquire it, or (b) knew that the trade secret was either wrongly acquired, derived from a person who owed a duty to maintain secrecy, or acquired by accident.  Civ. Code §3426.1(b).  A trade secret is acquired by “improper means” under circumstances that include, inter alia, theft and “breach or inducement of a breach of a duty to maintain secrecy....”  Civil Code § 3426.1(a).  Reverse engineering and independent derivation by themselves are not considered improper means.  Id.  “[M]isappropriation is not limited to the initial act of improperly acquiring trade secrets; the use and continuing use of the trade secrets is also misappropriation.”  PMC, Inc. v. Kadisha, (2000) 78 Cal.App.4th 1368, 1385.