Judge: Robert C. Longstreth, Case: 37-2023-00035730-CU-BT-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2023-00035730-CU-BT-CTL FOMS INC VS DSTAR COMMUNICATIONS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Preliminary Injunction, 04/23/2024

Plaintiff's Motion for Preliminary Injunction (ROA 62) is DENIED.

As a preliminary matter, the court notes both sides lodged numerous exhibits marked confidential. (See ROA 63, 76.) Plaintiff's notice of lodgment states the exhibits are 'marked confidential pursuant to protective order lodged pursuant to Local Rule 2.5.5, California Rules of Court 2.550 and 2.551.' (ROA 63.) The stipulated protective order provides that the rules of court are to be followed. (ROA 32, Prot.

Order at ¶ 17.) Court rules, in turn, provide that '[a] record must not be filed under seal without a court order' and that 'the court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.' (Cal. R. Court, rule 2.551(a).) No motion to seal has been filed by either side, nor has any sealing order been issued in this case. The court has considered the lodged, unsealed exhibits, with the exception of Plaintiff's counsel's 'confidential supplemental declaration,' which the court did not consider. (Pltf. NOL at Exh. 1.) Declarations must be filed together with all other moving papers; the court is not permitted to consider a lodged, but unfiled and unsealed, declaration.

(See Code Civ. Proc. § 1005(b).) 'A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.' (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) 'The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.' (Butt v. State of California (1992) 4 Cal.4th 668, 678.) Plaintiff asserts a claim, among others, for violation of the California Trade Secrets Act ('CTSA').

Pursuant to the CTSA, a trade secret is 'information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.' (Civ. Code § 3426.1(d).) To state a claim under the CTSA, '[t]he trade secret must be described with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries within which the secret lies.' (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, Calendar No.: Event ID:  TENTATIVE RULINGS

3042574  7 CASE NUMBER: CASE TITLE:  FOMS INC VS DSTAR COMMUNICATIONS [IMAGED]  37-2023-00035730-CU-BT-CTL 43-44.) Here, Plaintiff asserts that its trade secrets relating to its In Space Manufacturing Technology ('ISMT,' sometimes referred to by the parties as 'SpaceFORM') 'include the following: engineering designs; product roadmaps and designs; design reviews and approaches; design 'know-how;' software, hardware and equipment for the ISS; hardware and equipment for base operations; risk management plans; verification data and reporting; launch data; demonstration data; manufacturing analysis and reporting; manufacturing studies; flight and ground fiber sampling; hazard reports; fracture and debris release controls and analysis; control data; first, second and third generation fiber manufacturing hardware and software; evolutionary improvements of designs; data regarding crystallization process; feasibility data and reporting; remote control hardware and monitoring configurations and data; market and economic analysis and conclusions; and hardware and processing capabilities.' (Mtn. at 14:15-23; see also Temporary Restraining Order ('TRO') at 2:20-3:1.) The court agrees with Defendants that the trade secrets are not described with sufficient particularity, either to enable the court to understand how the asserted trade secrets may be separated from general knowledge or from the special knowledge of skilled members of the trade, or to put Defendants on notice of the boundaries of the asserted trade secrets.

Even presuming a discernable trade secret, Defendants have put forth substantial evidence indicating at least some of the trade secret information was in fact available to the public. (Starodubov Decl. ¶¶ 20-22 and Exhs. N-Q and Cf.-E.) While Plaintiff asserts the cited presentations and articles merely reported on the results of the technology, a review of the articles indicates otherwise. (See, e.g., Starodubov Decl. at Exhs. O and P.) Moreover, Plaintiff has not sufficiently articulated the difference between the publicly available information and the information it claims is a trade secret. Nor has Plaintiff established that Defendants are using or intend to use any of the latter in their operations.

Moreover, Defendant has put forth evidence that at least some the asserted trade secret information was developed by him before he began his employment with Plaintiff. (Starodubov Decl. at ¶¶ 2-10.) The court further notes that while Plaintiff contends Starodubov was subject to a Confidentiality Agreement during the entirety of his employment with Plaintiff, the evidence cited by Plaintiff fails to support this assertion. Plaintiff relies on an agreement between Starodubov and a different entity, Torrey Pines Logic, Inc., that predates Starodubov's employment with Plaintiff. (ROA 14, Volfson Decl., Exh. A.) This agreement contains a litany of exceptions identified as Starodubov's prior inventions.

(Ibid.) Plaintiff has not provided evidence as to any relationship it has with Torrey Pines Logic, Inc., and in fact suggests in its reply brief that it is a third-party contractor relationship, nor has it provided evidence to support its assertion the agreement covers Plaintiff's relationship with Starodubov, or sufficiently identified what technology or information the agreement might encompass.

Plaintiff has not demonstrated a likelihood that it will prevail on the merits. Accordingly, the TRO is dissolved.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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