Judge: Kevin C. Brazile, Case: 22STCV02065, Date: 2023-02-23 Tentative Ruling

Hearing Date: February 23, 2023

Case Name: Miller, et al. v. United Investexusa 7 Inc, et al.

Case No.: 20STCV22215 

Matter: Motion for Summary Adjudication

Moving Party: Cross-Defendants Matthew Miller, Donald Bake, Saad Khan, Mark Iroha, 

Joey Keane, Nathan Abebe, Christian Merchain, and Adam Stone

Responding Party: Cross-Complainants Manpow, LLC, United Investexusa 7, Inc, and United 

Investexusa 11, Inc.

Notice: OK

Ruling: The Motion for Summary Adjudication is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On August 11, 2020,  Cross-Complainants Manpow, LLC, United Investexusa 7, Inc, and United Investexusa 11, Inc. filed the operative Cross-Complaint for (1) breach of confidentiality agreement, (2) breach of employment agreements against Bake, Khan, and Miller, (3) breach of employment agreements against Abebe, Iroha, Keane, Merchain, and Stone, (4) misappropriation of trade secrets, (5) breach of loyalty, (6) breach of fiduciary duty, (7) violation of the UCL, and (8) concealment.

Cross-Defendants Matthew Miller, Donald Bake, Saad Khan, Mark Iroha, Joey Keane, Nathan Abebe, Christian Merchain, and Adam Stone now seek summary adjudication of the Cross-Complaint’s second, fifth, sixth, seventh, and eighth causes of action.  

Specifically, Cross-Defendants move for summary adjudication as follows:

1. Issue No. 1: New Western’s Second Cause of Action for Breach of Contract Against Bake, Khan, and Miller Fails Because New Western Cannot Prove Breach; 

a. Specifically, New Western’s allegations are false and New Western failed in discovery to identify any breaches; 

2. Issue No. 2: New Western’s Fifth Cause of Action for Breach of Loyalty Is Preempted by the California Uniform Trade Secrets Act (“CUTSA”) and Otherwise Deficient; 

a. Specifically, the claim is deficient because it is based on misappropriation of confidential information and trade secrets (both of which are preempted under the CUTSA) and because it is based on the same false allegations as the Second Cause of Action for Breach of Contract; 

3. Issue No. 3: New Western’s Sixth Cause of Action for Breach of Fiduciary Duty Is Preempted by the CUTSA and Otherwise Deficient; 

a. Specifically, the claim is deficient because it is based on misappropriation of confidential information and trade secrets (both of which are preempted under the CUTSA) and because it is based on the same false allegations as the Second Cause of Action for Breach of Contract; 

4. Issue No. 4: New Western’s Seventh Cause of Action for Unfair Competition Is Preempted by the CUTSA and Otherwise Deficient for Failure to Allege or Show Harm to Competition; and 

a. Specifically, the claim is deficient because it is based on misappropriation of confidential information and trade secrets (both of which are preempted under the CUTSA) and because New Western – who is a competitor of the Former Employees – failed to allege or offer evidence of harm to competition; 

5. Issue No. 5: New Western’s Eighth Cause of Action for Fraud by Concealment Fails Because It Is Preempted by the CUTSA, the Former Employees Did Not Have a Duty to Disclose the Allegedly Concealed Information, and the Former Employees Are Protected by the Litigation Privilege; 

a. Specifically, the claim is deficient because it is based on misappropriation of confidential information and trade secrets (both of which are preempted under the CUTSA), the Former Employees did not have a duty to disclose that information they allegedly concealed, and they are protected by the litigation privilege. 

Previously, Cross-Defendants moved for summary adjudication in relevant part as follows: 

• Two of New Western’s contract claims are ripe for summary adjudication because New Western seeks enforcement of certain confidentiality information that are invalid and unenforceable under California law and policy; 

• New Western’s additional contract claim against Former Employees Miller, Bake, and Khan is ripe for summary adjudication because the undisputed facts show that Miller, Bake, and Khan did not commit the breach alleged, and New Western cannot therefore prove all the elements of its claim; 

• New Western’s unfair competition claim under Business & Professions Code Section 17200 is preempted by its separate claim for trade secret misappropriation and/or fails under the standards applicable to a competitor asserting such a claim; 

• New Western’s claims for breach of the duty of loyalty and breach of fiduciary duty are largely preempted by the separate claim for trade secret misappropriation and, to the extent those claims are not preempted, each fails for lack of evidence and/or because New Western seeks to hold Former Employees liable for conduct that is expressly permitted under the law; and 

• New Western’s claim for fraudulent concealment is ripe for summary adjudication because the Former Employees did not have a duty to disclose the allegedly concealed information, and New Western cannot therefore prove all the elements of its claim. 

That is, all of the issues currently being presented have previously been brought before the Court—specifically, Judge Mark V. Mooney.  Judge Mooney denied the first summary adjudication motion on procedural grounds.  Cross-Defendants then moved for reconsideration via ex parte application, but that was also denied, except to the extent the Court denied summary adjudication as to Cross-complainants’ declaratory relief claim.  

Notably, Cross-Defendants then brought a motion for authorization to file a successive motion for summary adjudication.  This was denied by Judge Mooney on August 31, 2022.  Thus, there is seemingly no reason to yet again reassert the instant Motion before another Judge.  Accordingly, the Motion is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.