Judge Upinder S. Kalra, Case Number: 20STCV29343, Date: 2023-10-19 Tentative Ruling

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1. A Protective Order with respect to confidential documents produced (and to be produced) by Defendant in this action.

1. Defendant’s Motion to Protective Order is GRANTED as to its Internal Testing Documents already produced to Plaintiffs and any additional Internal Testing Documents that Defendant subsequently produces in discovery.

Plaintiffs Doroteo Gonzales Jr. and Terry Gonzales (Plaintiffs) filed a Wrongful Death Complaint against Defendants Kido Sports Co., Ltd., Scorpion Sports, Inc., and Cycle Gear, Inc. on August 4, 2020. Defendant Kido Sports, Co., Ltd. (Defendant) filed an Answer on July 19, 2021. Defendant Cycle Gear, Inc. (Cycle Gear) filed an Answer and Cross-Complaint on September 3, 2021. Plaintiffs dismissed Cycle Gear on November 2, 2021. Cycle Gear dismissed its Cross-Complaint on December 9, 2021. Plaintiffs filed a First Amended Complaint (FAC) on April 24, 2023 with two causes of action for: (1) Product Liability, and (2) Deceptive Advertising and Unfair Business Practices. Defendant filed an Answer to the FAC on May 26, 2023. Defendant Western Power Sports, LLC (sued as DOE 1) filed an Answer to the FAC on September 15, 2023. Defendant Scorpion Sports, Inc. has not been served and has not appeared.

According to the FAC, Plaintiffs’ son died after crashing face-first into the ground while riding his motorcycle. Plaintiffs allege that their son was wearing a Scorpion “EXO Covert” Helmet at the time of the accident and that this helmet was defective because it did not protect his head from frontal impact. Plaintiffs further allege that the defendants intentionally marketed that the helmet would protect from frontal injuries.

Defendant filed the instant motion on August 1, 2023. Plaintiffs filed an opposition on August 17, 2023. Defendant filed a reply on August 23, 2023.

First, the court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication [CCP § 437c (q)] or a special motion to strike [CCP § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.] As such, the court respectfully declines to rule on any of these objections. The court is aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

When a party demands the production of documents, the responding party may move for a protective order, which shall be accompanied with a meet and confer declaration. (Cal. Code Civ. Proc. (CCP) § 2031.060(a).)¿

Here, according to the Declaration of Keith A. Sipprelle filed with the motion for protective order, the parties met and conferred over drafts of a stipulated protective order for six months. (Sipprelle Decl. ¶ 3.) Thereafter, efforts to finalize and agree to a stipulated protective order failed and Defendant proceeded with the instant motion. (Ibid.) Therefore, the parties sufficiently met and conferred before filing this motion.

For “good cause” shown, the court may make whatever order justice requires¿to protect¿a party against¿“unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”¿This protective order may include, but is not limited to, one or more of the following directions:¿

1. “That all or some of the items or categories of items in the¿demand need not be produced or made available at all.¿

2. That the time specified in¿Section 2030.260¿to respond to the set of¿demands, or to a particular item or category in the set, be extended.¿

4. That the inspection, copying, testing, or sampling¿be made only on specified terms and conditions.¿

5. That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.¿

6. ¿That the items produced be sealed and thereafter opened only on order of the court.”¿

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties…The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]’¿(Stadish¿v. Superior Court, (1999) 71 Cal.App.4th 1130, 1145 (Stadish).) A trial court must balance the¿various interests in deciding ‘whether dissemination of the¿documents should be restricted.’¿(Id.¿at p. 1146) Further, even where a motion for a¿protective¿order¿is denied in whole or in part, the trial court may still impose “terms and conditions that are just.”¿(Nativi¿v. Deutsche Bank Nat'l Tr. Co.,¿(2014)¿223 Cal.App.4th 261, 317 (Nativi).)

A party seeking the protective order bears the burden of proof, a preponderance of the evidence, to establish good cause and cannot use mere conclusions to establish good cause without a factual showing. (Stadish, supra, at p. 1145; Nativi, supra, at p. 318.)¿

The decision as to whether to enter a protective order lies within the sound discretion of the court. (Raymond Handling Concepts Corp. v. Sup. Ct. (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Ins. Co. v. Sup. Ct. (1981) 124 Cal.App.3d 237, 242.) The moving party has the burden of showing good cause for protective order. (Emerson Elec. Co. v Sup. Ct. (1997) 16 Cal.4th 1101, 1110.)

Defendant moves for a protective order concerning “internal Kido testing records regarding the Scorpion Exo Covert Helmet.”

Defendant argues that good cause exists for issues a protective order because its internal testing documents contain, inter alia, confidential information regarding internal testing approaches and methodologies in which it has a protectable interest. (Declaration of Steven Blakeney (Blakeney Decl.) ¶ 2.)

Plaintiffs argue that Defendant’s failed to establish that its marketing and safety testing are trade secrets. [1] Alternatively, Plaintiffs argue that concealing such documents will defraud the public and work an injustice against its nationwide consumers.[2]

Defendant replies that it only seeks reasonable protection for its internal testing records, not its marketing materials.

Defendant argues good cause exists for a protective order because its internal testing documents contain, inter alia, confidential information regarding internal testing approaches and methodologies in which it has a protectable interest. Plaintiffs argue that Defendant’s failed to establish that its marketing and safety testing are trade secrets. Alternatively, Plaintiffs argue that concealing such documents will defraud the public and work an injustice against its nationwide consumers. Defendant replies that it only seeks reasonable protection for its internal testing records that it already produced to Plaintiffs, not its marketing materials.

A “trade secret” is information 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); Evid. Code § 1061(a)(1).) A party seeking a protective order restricting disclosure of trade secrets must provide an affidavit or declaration: (1) listing the declarant’s qualifications to give an opinion; (2) identifying the alleged trade secret; (3) identifying the documents disclosing the trade secret; and (4) presenting evidence that the secret qualifies as a “trade secret.” (Cal. Evid. Code §§ 1060-1061; see CCP § 2031.060(b)(5); Stadish, supra, at p. 1144-45.)

Here, Defendant established by a preponderance of the evidence that its internal testing documents contain trade secrets. First, Defendant provides a declaration stating the qualifications of the declarant giving an opinion the Declaration of Steven Blakeney who is the Operations Director for Defendant’s branch office in Santa Fe Springs, California. (Blakeney Decl. ¶ 1.) Second, Defendant identified the alleged trade secret as “internal testing approaches and methodologies.” (Id. at ¶ 2.) Third, Defendant identified the documents subject to trade secret protection as the internal testing records regarding the Scorpion Exo Covert Helmet. (Ibid.) Fourth, Defendant provided evidence that the internal testing records qualify as a “trade secret” because Mr. Blekeney declared that the records are “highly proprietary, confidential and trade sensitive” in that they “regard[] internal testing approaches and methodologies in which Kido has a protectable interest.” (Ibid.) In sum, Defendant has satisfied its burden that the discovery qualifies as a “trade secret.”

Accordingly, the court GRANTS Defendant’s motion for protective order as to the internal testing documents.

[1]Plaintiffs oppose the motion on four grounds: timeliness, procedural grounds as to the notice of motion, trade secrets, and relevance. However, upon reviewing the papers in their entirety, Plaintiffs’ pertinent argument attacks whether Defendant has demonstrated good cause for the court to issue a protective order. The court is not persuaded that Plaintiffs’ arguments for timeliness, procedural grounds, and relevance have merit. First, Plaintiffs do not provide authority supporting their position that Defendant “must” file its motion to protective order before responding to discovery. Promptness turns on a case’s facts. (Nativi, supra, at p. 317 [noting that the protective order there was timely as a matter of law “since it was contesting the dissemination of the documents, not their production.]; see also, Stadish, supra, at p. 1144 [commenting that a party may seek a protective order restricting dissemination of documents already produced.]) Here, Defendant states that it promptly moved for a protective order after the six months of meet and confer efforts failed and that it already produced these records to Plaintiffs in the interim. (Decl. Sipprelle ¶ 3; Supplemental Decl. Sipprelle ¶ 3.) Second, upon reviewing the notice of motion and Defendant’s Reply, Plaintiffs were aware what documents Defendant sought to protect via motion for protective order. Third, the court does not see how Plaintiffs’ argument that the requested documents are relevant progresses their position to deny Defendant’s motion. Indeed, Defendant has represented that Plaintiffs already possess the records. Defendant has not asked the court to order Plaintiffs to return the documents, destroy the documents, or otherwise wipe the documents from their case file.

[2] The court disregards the portions of Plaintiffs’ argument that pertains to marketing materials because Defendant does not seek a protective order as to its marketing materials. (Supplemental Decl. Sipprelle ¶ 2.)