Judge Teresa A. Beaudet, Case Number: 22STCV32325, Date: 2023-08-16 Tentative Ruling

DAVIS AMBUEHL, Plaintiff, vs. GABRIEL HEKMATNIAZ, et al. Defendants.	Case No.:	22STCV32325
	Hearing Date:	August 16, 2023
	Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION RE PRELIMINARY INJUNCTION
AND RELATED CROSS-ACTION

Plaintiff Davis Ambuehl (“Plaintiff”) filed this action on October 3, 2022 against Defendant Gabriel Hekmatniaz (“Hekmatniaz”), Bring Your Game LA, Inc. (“BYG”), and BYG Hoops, Inc. (“BYG Hoops”) (collectively, “Defendants”). The Complaint asserts causes of action for (1) intentional interference with prospective economic advantage, (2) negligent interference with prospective economic advantage, (3) breach of fiduciary duty, (4) conversion, (5) declaratory relief, (6) injunctive relief, (7) accounting, (8) theft of trade secrets, and

On November 28, 2022, Defendants filed a Cross-Complaint against Plaintiff and Cindy Ambuehl, asserting causes of action for (1) negligent misrepresentation, (2) intentional misrepresentation, (3) breach of contract, (4) breach of fiduciary duty, (5) violation of unfair and deceptive business practices, (6) negligent interference with prospective economic advantage, (7) declaratory relief, and (8) intentional infliction of emotional distress.

Plaintiff moved “for a preliminary injunction enjoining Defendants’ use or exploitation of the trade secrets, rights, business opportunities, profits, assets, goodwill, intellectual property, name or marks of [BYG]…including all iterations thereof, without written authorization, and enjoining the representation to any person or entity that [Hekmatniaz] has the authority to act on behalf of BYG.” Hekmatniaz opposed.

On July 26, 2023, the Court issued an Order continuing the hearing on Plaintiff’s motion for preliminary injunction to August 16, 2023. The Cout ordered that Plaintiff may file and serve a revised proposed order, as discussed in the July 26, 2023 Order, by August 2, 2023 at 4:00 p.m., with a courtesy copy delivered to Department 50. The Court ordered that Hekmatniaz may file a response thereto by August 9, 2023 at 4:00 p.m., with a courtesy copy delivered to Department 50.

On August 2, 2023, Plaintiff filed a revised proposed order. On August 9, 2023, Defendants filed objections to the revised proposed order.

In the Court’s July 26, 2023 Order, the Court found, inter alia, that Plaintiff established a likelihood of success on the merits as to his first, second, third, and fourth causes of action. (July 26, 2023 Order at pp. 11:26-27; 12:26-27; 13:22-23.) The Court also found that “Plaintiff has demonstrated interim harm that he will suffer if an injunction is not issued pending an adjudication of the merits.” (Id. at p. 18:16-18.)

As noted in the Court’s July 26, 2023 Order, Plaintiff’s original proposed order provided that Hekmatniaz and BYG Hoops “[m]ust, within twenty-four (24) hours of the service of this Order, provide Plaintiff, Davis Ambuehl, with login and password information for all of BYG’s social media accounts, including but not limited to twitter.com/gabehekmat (pka twitter.com/byghoops) and Instagram.com/byghoops; and Davis Ambuehl is permitted to login to said accounts and remove the accounts and/or all content relating to or mentioning BYG from public view.” The July 26, 2023 Order provides that “[t]he Court does not find that Plaintiff has demonstrated good cause for such a broad order, in light of the interim harm identified by Hekmatniaz with regard to the order. The Court will give Plaintiff an opportunity to tailor the proposed order in light of the foregoing.” (July 26, 2023 Order at p. 18:2-5.)

The Court also noted in the July 26, 2023 Order that “Plaintiff also seeks an order that Hekmatniaz and BYG Hoops, (1) ‘[a]re restrained and enjoined from using or exploiting, including the wearing of any garment in public that contains the trade secrets, rights, business opportunities, profits, assets, goodwill, intellectual property, name or marks of BRING YOUR GAME LA, INC. (“BYG”), a California Corporation, including all iterations thereof, without written authorization of Davis Ambuehl,’ (2) ‘[a]re restrained and enjoined from representing to any person or entity that Gabriel Hekmatniaz has the authority to act on behalf of BYG,’ and (3) ‘[a]re restrained and enjoined from Marketing, advertising, collecting funds for, selling tickets for, or organizing any event which is similar to the events BYG has historically coordinated – High School basketball showcases.’” (July 26, 2023 Order at p. 18:6-14.) The Court noted that “Hekmatniaz does not appear to assert that he would suffer harm in the event the Court issues these remaining orders set forth in Plaintiff’s proposed order.” (Id. at p. 18:15-16.)

Plaintiff’s revised proposed order submitted on August 2, 2023 provides as follows: “Defendants Gabriel Hekmatniaz and BYG Hoops, Inc., their agents, employees, assigns, and all persons acting in concert with them (‘Defendants’), are restrained and enjoined from:

1. Using or exploiting, the trade secrets, rights, business opportunities, profits, assets, goodwill, intellectual property, name or marks of BRING YOUR GAME LA, INC. (“BYG”), a California Corporation, including all iterations thereof. This includes but is not limited to the wearing of any garment in public that contains any iteration of BYG;

2. Representing to any person or entity that Gabriel Hekmatniaz has the authority to act on behalf of BYG;

3. Marketing, advertising, collecting funds for, selling tickets for, or organizing any High School basketball showcase similar to the events BYG has historically coordinated;

4. Continuing to make available to the public on any social media platform, including but not limited to twitter.com/gabehekmat (pka twitter.com/byghoops) and Instagram.com/byghoops which contains content of or references BYG; and

5. Making any future post or repost on any social media platform, including but not limited to twitter.com/gabehekmat (pka twitter.com/byghoops) and Instagram.com/byghoops which contains content of or references BYG.”

Defendants assert that sections 3 and 4 of the revised proposed order should be stricken. As to section 3 of the proposed order, Defendants note that the Court’s July 26, 2023 Order provides that “the Court does not find that Plaintiff has established a likelihood of success on the merits as to his eighth cause of action.” (July 26, 2023 Order at p. 15:19-20.)[1] Defendants also note that the Court did not find that Plaintiff established a likelihood of success on the merits as to his ninth cause of action for fraud-concealment. (Id. at p. 16:14-15.) Defendants assert that “despite the Court finding that there is insufficient evidence of theft of trade secrets or fraud, Plaintiff nevertheless attempts to include in his revised Proposed Order section 3, language stating that Defendants shall be restrained and enjoined from ‘Marketing, advertising, collecting funds for, selling tickets for, or organizing any High School basketball showcase similar to the events BYG has historically coordinated’.” (Defendants’ Objections at p. 3:9-13.)

Defendants also argue that “[e]ssentially, the requested orders in Section 3 of the revised Proposed Order serves to act as a noncompete restriction, which the State of California does not permit as a matter of public policy and per Code…” (Defendants’ Objections at p. 3:16-18.) Defendants cite to Business and Professions Code section 16600, which provides that “[e]xcept as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

The Court notes that these arguments were not made by Hekmatniaz in connection with his opposition to the instant motion, such that Plaintiff has not had the opportunity to respond to them. As set forth in the Court’s July 26, 2023 Order, Hekmatniaz did not appear to assert in the opposition that he would suffer harm in the event that the Court issued the originally requested order that Hekmatniaz and BYG Hoops “[a]re restrained and enjoined from Marketing, advertising, collecting funds for, selling tickets for, or organizing any event which is similar to the events BYG has historically coordinated – High School basketball showcases.” (See July 26, 2023 Order at p. 18:6-16.)

In addition, as discussed, the Court found that Plaintiff established a likelihood of success on the merits as to his first cause of action for intentional interference with prospective economic advantage and second cause of action for negligent interference with prospective economic advantage. The Court also found that “Plaintiff has demonstrated interim harm that he will suffer if an injunction is not issued pending an adjudication of the merits. As discussed, Plaintiff states that he ‘believe[s] that [Hekmatniaz] was, through BYG Hoops, knowingly and falsely representing to contacts, coaches, players, etc. that he created BYG Hoops on his own cognizance and has nothing to do with [Plaintiff]…’ (Ambuehl Decl., ¶ 13.) Plaintiff further states that ‘[Hekmatniaz] used the misappropriated customer lists to solicit business from multiple coaches in March and April of 2022 in order to cut [Plaintiff] out and partner directly with him…’ (Ambuehl Decl., ¶ 10.).” (July 26, 2023 Order at p. 18:16-23.)

Based on the foregoing, the Court declines to strike section 3 of the proposed order.

Lastly, section 4 of the revised proposed order provides that Gabriel Hekmatniaz and BYG Hoops, Inc. are restrained and enjoined from “[c]ontinuing to make available to the public on any social media platform, including but not limited to twitter.com/gabehekmat (pka twitter.com/byghoops) and Instagram.com/byghoops which contains content of or references BYG…” It appears that this sentence is incomplete or may be missing a word after “public.” In addition, Defendants assert that “this proposed revision would require Defendant to delete the posts so that they would not be available to the public,” and that “[o]n July 26, 2023 the Court specifically stated that no orders would be issued requiring that posts be deleted. This is due to the fact that litigation in this matter is still ongoing and any deletion of posts would constitute spoilation of evidence.” (Defendants’ objections at pp. 4:9-10; 3:24-26.)

Based on the foregoing, the Court grants Defendants’ request to remove section 4 of the revised proposed order.

Based on the foregoing, the Court grants Plaintiff’s motion for a preliminary injunction. The Court will strike out Section 4 of Plaintiff’s revised proposed order and will sign such amended revised proposed order.

[1]Plaintiff’s eighth cause of action is for theft of trade secrets.

Superior Court of California

County of Los Angeles

Department 50