Zoom Imaging Solutions, Inc. v. Roe ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ZOOM IMAGING SOLUTIONS, INC., No. 2:19-cv-01544 WBS KJN 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR 15 EDWARD ROE; MAXWELL RAMSAY; JON PARTIAL SUMMARY JUDGMENT, CROSSEN; CORINNE FUERST; ANDREW DEFENDANTS ROE AND POWER’S 16 ALSWEET, KEVIN TOON; JASON MOTION FOR SUMMARY JUDGMENT, PEEBLER; ABIGAIL NEAL; POWER AND DEFENDANTS RAMSAY, 17 BUSINESS TECHNOLOGY LLC; BRYAN CROSSEN, PEEBLER, DAVIS, AND DAVIS; MAURA LOPEZ; JEFFREY LOPEZ’S MOTION FOR SUMMARY 18 ORLANDO; JESSICA HINTZ; and DOES JUDGMENT 1 through 100, inclusive, 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff Zoom Imaging Solutions, Inc. (“Zoom”) brings 23 this action against defendants Edward Roe, Maxwell Ramsay, Jon 24 Crossen, Jason Peebler, Bryan Davis, Maura Lopez, and Power 25 Business Technology LLC (“Power”),1 arising from defendants’ 26 27 1 The parties previously stipulated to voluntary dismissal of defendants Andrew Alsweet, Corinne Fuerst, Jessica 28 Hintz, Abigail Neal, Jeffrey Orlando, and Kevin Toon. (Docket 1 allegedly wrongful conduct in violation of defendants’ employment 2 agreements, as well as state and federal law. (First Am. Compl. 3 (“FAC”) (Docket No. 61).) Before the court are three motions for 4 summary judgment: (1) plaintiff’s motion for partial summary 5 judgment (Docket No. 238); (2) defendants Roe and Power’s motion 6 for summary judgment (Docket No. 239); and (3) defendants Ramsay, 7 Crossen, Peebler, Davis, and Lopez’s (“employee defendants”) 8 motion for summary judgment (Docket No. 237).2 9 I. Factual and Procedural Background 10 The undisputed facts are as follows. Zoom provides 11 “imaging and document solution services to businesses (including 12 the sale, installation, and servicing of digital print and copy 13 systems, managed print services, and the sale of software 14 solutions) . . . and is a vendor for multiple brands of digital 15 copy, print, and scan equipment.” (Defs.’ Joint Response to 16 Pl.’s Statement of Undisputed Facts (“PSUF”) ¶ 1 (Docket No. 243- 17 5).) Zoom is owned by Xerox Business Solutions (“Xerox”). (Id. 18 ¶ 3.) Zoom was the number one dealer for Toshiba in the central 19 Bay Area in California at the beginning of 2019. (Id. ¶ 5.) 20 Roe worked for Zoom from April 1, 2004 until April 3, 21 2019,3 and for approximately the last two years of his employment 22 No. 191.) 23 2 Plaintiff requests that the court judicially notice: 24 (1) Ed Roe’s declaration from a different lawsuit in state court; (2) Power’s Articles of Organization; and (3) Power’s Seller’s 25 Permit. (Docket No. 238-2.) The court does not rely on these documents, and therefore, the request is denied as moot. 26 27 3 Roe argues that he effectively was no longer President of Zoom starting on or around February 12-19, 2019 because he was 28 allegedly told he would be let go soon. The relevance of this 1 he served as the President of Zoom. (Id. ¶ 11.) On March 13, 2 2019, Roe filed Articles of Organization with the California 3 Secretary of State to formally create Power, a company that 4 provides services and equipment similar to Zoom. (Id. ¶ 59.) 5 Ramsay, Crossen, Peebler, Davis, and Lopez are former 6 Zoom employees and now employed by Power. (Pl.’s Resp. to 7 Employee Defs.’ Statement of Undisputed Facts (“Emp. DSUF”) ¶ 1 8 (Docket No. 249-1).) Ramsay worked as the Regional Sales Manager 9 for Zoom from October 7, 2008 to April 18, 2019, when his Zoom 10 office space closed, and he became a Power employee on April 18, 11 2019. (Id. ¶ 23; Decl. of Max Ramsay ¶ 3 (Docket No. 237-4).) 12 Crossen worked at Zoom until the spring of 2019, when his Zoom 13 office space closed, and became a Power employee on July 30, 14 2019. (Decl. of Jon Crossen ¶ 3 (Docket No. 237-9).) Peebler 15 worked at Zoom until the Spring of 2019, when his Zoom office 16 space closed, and became a Power employee on April 10, 2019. 17 (Decl. of Jason Peebler ¶ 3 (Docket No. 237-5).) Davis served as 18 the Vice President of Service and Operations for Zoom until the 19 spring of 2019 and then on April 8, 2019 became a Power employee. 20 (Emp. DSUF ¶ 23; Decl. of Bryan Davis ¶ 3 (Docket No. 237-8).) 21 Lopez worked as the Director of Marketing at Zoom from April 1, 22 2010 to April 5, 2019, when her Zoom office space closed, and on 23 April 8, 2019 she became a Power employee. (Emp. DSUF ¶ 23; 24 Decl. of Maura Lopez ¶ 3 (Docket No. 237-6).) 25 In dispute is the state of Zoom in 2019. Plaintiff 26 claims that Xerox initiated a plan to save costs by consolidating 27 28 argument is discussed below. 1 office space among subsidiaries while continuing service to 2 clients seamlessly. (PSUF ¶ 29.) Defendants claim that Xerox’s 3 plan in 2019 was to close all Zoom offices and warehouse space, 4 terminate Roe as president, and decrease Zoom’s dealership of 5 Toshiba products. (Pl.’s Resp. to Roe and Power’s Statement of 6 Undisputed Facts (“Roe and Power SUF”) ¶ 19 (Docket No. 250-1).) 7 Zoom alleges the following claims for relief: (1) 8 breach of contract against Roe based on his executive agreement; 9 (2) breach of contract against Roe, Ramsay, Crossen, Peebler, 10 Davis, and Lopez (“the individual defendants”) for the 2018 11 Employee Handbook; (3) breach of contract against Roe, Crossen, 12 and Lopez for the 2013 Employee Handbook; (5)4 violation of the 13 California Uniform Trade Secrets Act, California Civil Code § 14 3426, against Roe, Ramsay, and Power; (6) violation of the Defend 15 Trade Secrets Act, 18 U.S.C. § 1836, against Roe, Ramsay, and 16 Power; (7) intentional interference with contractual relations 17 against Roe, Ramsay, Lopez, Davis, and Power; (8) violation of 18 the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, against Roe; 19 (9) breach of fiduciary duty against Roe, Ramsay, Lopez, and 20 Davis; and (10) breach of loyalty against Roe, Ramsay, Lopez, and 21 Davis. Plaintiff also alleges civil conspiracy within its 22 seventh, ninth, and tenth claims. 23 Plaintiff moves for partial summary judgment on claims 24 one, two, three, seven, nine, and ten and civil conspiracy as 25 alleged in the seventh, ninth, and tenth claims. (Mem. ISO Pl.’s 26 27 4 The court dismissed the FAC’s fourth and eleventh claims in its January 29, 2020 order, and therefore those claims 28 are excluded from this list and order. (Docket No. 84.) 1 Mot. for Summ. J. (“Pl.’s MSJ”) at 1 (Docket No. 238-1).) 2 Defendants Roe and Power move for summary judgment on each of the 3 claims against them, or in the alternative partial summary 4 judgment. (Defs.’ Roe and Power’s Mot. for Summ. J. (“Roe and 5 Power’s MSJ”) at 8 (Docket No. 239).) Defendants Ramsay, 6 Crossen, Lopez, Davis and Peebler move for summary judgment on 7 each of the claims against them, or in the alternative partial 8 summary judgment, and join in Roe and Power’s motion for summary 9 judgment. (Mem. ISO of Defs.’ Employee Mot. for Summ. J. 10 (“Employee Defs.’ MSJ”) at 1 (Docket No. 237-2).) 11 II. Evidentiary Objections 12 Plaintiff has filed 177 evidentiary objections (Docket 13 Nos. 249-2, 250-2, 253-1), objecting to portions of nine 14 declarations on grounds of lack of foundation, hearsay, lack of 15 personal knowledge, speculation, improper opinion testimony, lack 16 of authentication, vagueness, and argumentative. Defendants have 17 filed 25 evidentiary objections (Docket Nos. 243-1, 243-2, 243-3, 18 243-4, 254-2, 254-3), objecting to portions of five declarations 19 submitted by plaintiff on the grounds of lack of personal 20 knowledge, relevance, lack of authentication, and hearsay. 21 One can only imagine how many attorney hours were 22 consumed in coming up with this laundry list of objections. The 23 majority of plaintiff’s counsel’s 177 objections consist of one- 24 word objections without any explanation or argument. Such 25 objections are typically found to be “meritless, if not downright 26 frivolous.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 27 (9th Cir. 2021) (holding that defendants’ one-word objections at 28 the motion for summary phase were “meritless, if not downright 1 frivolous”). One of Roe and Power’s counsel’s objections is to 2 an entire declaration submitted by plaintiff which consists of 3 nearly 1300 pages of attached exhibits. (Docket No. 243-4.) 4 It is inconceivable that the parties could have 5 expected the court to rule on each objection and simultaneously 6 prepare for a meaningful hearing on the merits of their 7 complicated motions for summary judgment on nine claims for 8 relief. The parties also chose to not meaningfully respond, or 9 for the most part not respond at all, to each other’s objections. 10 If the parties could not be bothered to take these objections 11 seriously, they must not have believed that these objections 12 would be considered by the court. No serious consideration seems 13 to have been given to whether the objections are necessary, or 14 even useful, given the nature of summary judgment motions in 15 general, and the facts of this case. 16 “A party may object that the material cited to support 17 or dispute a fact cannot be presented in a form that would be 18 admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “[T]o 19 survive summary judgment, a party does not necessarily have to 20 produce evidence in a form that would be admissible at trial, as 21 long as the party satisfies the requirements of Federal Rules of 22 Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 23 (9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d 24 410, 418–19 (9th Cir. 2001)) (quotations omitted). Even if the 25 non-moving party’s evidence is presented in a form that is 26 currently inadmissible, such evidence may be evaluated on a 27 motion for summary judgment so long as the moving party’s 28 objections could be cured at trial. See Burch v. Regents of the 1 Univ. of Cal., 433 F. Supp. 2d 1110, 1119–20 (E.D. Cal. 2006). 2 Objections to evidence on the ground that the evidence 3 is irrelevant, speculative, argumentative, vague and ambiguous, 4 or constitutes an improper legal conclusion are all duplicative 5 of the summary judgment standard itself. See Sandoval, 985 F.3d 6 at 665 (9th Cir. 2021) (citing Burch, 433 F. Supp. 2d at 1119– 7 20). A court can award summary judgment only when there is no 8 genuine dispute of material fact. It cannot rely on irrelevant 9 facts, and thus relevance objections are redundant. Instead of 10 objecting, parties may argue that certain facts are not material. 11 Similarly, statements based on speculation, improper legal 12 conclusions, or argumentative statements, are not facts and can 13 only be considered as arguments, not as facts, on 14 a motion for summary judgment. Instead of challenging the 15 admissibility of this evidence, lawyers may challenge its 16 sufficiency. Objections on any of these grounds are superfluous, 17 and the court will overrule them. 18 While the parties use various phrases to describe their 19 remaining objections (lack of foundation, lack of personal 20 knowledge, lack of authentication, and hearsay) the bulk of 21 the objections essentially debate the accuracy and relevance of 22 the opposing party’s documents as submitted into the record. As 23 explained above, these objections deal not with whether documents 24 are admissible but whether the facts contained therein are true 25 and relevant. The court always considers the relevance of the 26 facts as it considers the parties’ arguments, and the court must 27 take all disputed facts in the light most favorable to the non- 28 moving party, but the court need not rule on the admissibility of 1 such facts when no reason has been shown why they would not be 2 admissible at trial. Further, many of the “objected to documents 3 either reflect personal knowledge of individuals who could be 4 called to testify at trial or will likely be admissible at trial” 5 for other reasons. See Sandoval, 985 F.3d at 666. 6 In the interest of brevity, as the parties are aware of 7 the substance of their objections and the grounds asserted in 8 support of each objection, the court will not review the 9 substance or grounds of each of the individual objections here. 10 The parties’ objections are all overruled. 11 III. Legal Standard 12 A party seeking summary judgment bears the initial 13 burden of demonstrating the absence of a genuine issue of 14 material fact as to the basis for the motion. Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323 (1986). A material fact is one that 16 could affect the outcome of the suit, and a genuine issue is one 17 that could permit a reasonable trier of fact to enter a verdict 18 in the non-moving party’s favor. Anderson v. Liberty Lobby, 19 Inc., 477 U.S. 242, 248 (1986). The party moving for summary 20 judgment can satisfy its burden by presenting evidence that 21 negates an essential element of the non-moving party’s 22 case. Celotex Corp, 477 U.S. at 322–23. Alternatively, the 23 movant can demonstrate that the non-moving party cannot provide 24 evidence to support an essential element upon which it will bear 25 the burden of proof at trial. Id. Summary judgment is 26 appropriate when, viewing the evidence in the light most 27 favorable to the non-moving party, there is no genuine dispute as 28 to any material fact. Acosta v. City Nat’l Corp., 922 F.3d 880, 1 885 (9th Cir. 2019). 2 Where, as here, parties submit cross-motions for 3 summary judgment, “each motion must be considered on its own 4 merits.” Fair Hous. Council of Riverside Cnty., Inc. v. 5 RiversideTwo, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal 6 citations and modifications omitted). “[T]he court must consider 7 the appropriate evidentiary material identified and submitted in 8 support of both motions, and in opposition to both motions, 9 before ruling on each of them.” Tulalip Tribes of Wash. v. 10 Washington, 783 F.3d 1151, 1156 (9th Cir. 2015). Accordingly, in 11 each instance, the court will view the evidence in the light most 12 favorable to the non-moving party and draw all inferences in its 13 favor. ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 14 (9th Cir. 2003) (citations omitted). 15 IV. Discussion 16 A. Claim One: Breach of Contract against Roe 17 Plaintiff and Roe move for summary judgment on the 18 first claim. Plaintiff’s FAC alleges Roe breached clause 4(b) in 19 his executive agreement by using plaintiff’s confidential 20 information to service, assist, and solicit customers that 21 previously employed Zoom and solicit employees to leave Zoom 22 within two years of the end of his employment with Zoom. (FAC ¶¶ 23 60, 65, 66; Decl. of Meg Paulding, Ex. 1(y) (“Executive 24 Agreement”)5 (Docket No. 238-8).) However, plaintiff now argues 25 26 5 The parties dispute whether this is the actual version of the operative executive agreement at the time Roe left Zoom. 27 However, this dispute is irrelevant to the grounds upon which the court decides the motions on plaintiff’s first claim. 28 1 that Roe breached different provisions of the executive agreement 2 pertaining to Roe’s alleged executive duties owed to Zoom. 3 (Pl.’s Opp’n to Roe and Power’s Mot. at 17 (Docket No. 250); 4 Pl.’s MSJ at 13.) 5 The FAC specifically quotes clause 4(b) of the 6 executive agreement as the clause which plaintiff sought to 7 enforce, (FAC ¶ 60; Executive Agreement ¶ 4(b)), and states that 8 Roe’s agreement to comply with this clause “constituted a valid 9 and binding contract” between Roe and Zoom. (FAC ¶ 62.) The FAC 10 then refers to this “contract” when alleging how Roe breached it 11 and does not plead any other portions of the executive agreement 12 that Roe allegedly breached. (See FAC ¶¶ 59-72.) 13 Plaintiff improperly argues its breach of contract 14 claim against Roe based on a new theory at the motion for summary 15 judgment stage. See Chavez v. Wynar, 536 F. Supp. 3d 517, 535 16 (N.D. Cal. 2021) (“Plaintiffs may not raise a new claim or theory 17 of liability for the first time in response to a motion for 18 summary judgment.”). Therefore, the court will not consider 19 plaintiff’s arguments about Roe’s alleged breach of clauses other 20 than clause 4(b). 21 To the extent plaintiff’s breach of contract claim is 22 based on clause 4(b),6 plaintiff now abandons that theory and 23 presents no argument or evidence on it. (Pl.’s Opp’n to Roe and 24 Power’s Mot. at 20, 22.) 25 Accordingly, the court will deny plaintiff’s motion for 26 6 The parties dispute whether this clause constitutes a 27 “non-compete” clause. As discussed, plaintiff has abandoned the breach of contract theory based on this clause, and therefore, 28 the court will not address that dispute. 1 summary judgment and grant defendant Roe’s motion for summary 2 judgment on the first claim. 3 B. Claims Two and Three: Breach of Contract against Individual Defendants 4 5 Plaintiff and the individual defendants move for 6 summary judgment on the second and third claims. In California, 7 to allege a cause of action for breach of contract, plaintiff 8 must plead “(1) the existence of a contract, (2) defendant’s 9 breach, (3) plaintiff’s performance or excuse for nonperformance, 10 and (4) the resulting damages to the plaintiff.” Oasis W. 11 Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). Plaintiff 12 alleges that all individual defendants breached provisions of the 13 employee handbook pertaining to safeguarding confidential 14 information. (FAC ¶ 76; Decl. of Meg Paulding, Ex. 1(i) (“2018 15 Employee Handbook”) (Docket Nos. 238-7, 238-8); Decl. of Meg 16 Paulding, Ex. 1(h) (“2013 Employee Handbook) (Docket No. 238-8).) 17 Plaintiff’s second claim against all individual defendants is 18 based on the 2018 employee handbook. Plaintiff’s third claim 19 against defendants Roe, Crossen, and Lopez is based on the 2013 20 employee handbook. 21 The individual defendants argue that neither the 2013 22 nor 2018 employee handbook is a contract, to which plaintiff 23 responds that it is an implied-in-fact contract. (Employee 24 Defs.’ MSJ at 3-5; Roe and Power’s MSJ at 40-41; Pl’s Opp’n to 25 Employee Defs.’ Mot. at 11 (Docket No. 249).) 26 “Parties can form implied contracts, the existence and 27 terms of which are manifested by conduct.” SMC Networks Inc. v. 28 Hitron Techs. Inc., No. SACV 12-1293, 2013 WL 12114104, at *3 1 (C.D. Cal. Nov. 13, 2013) (quoting Binder v. Aetna Life Ins. Co., 2 75 Cal. App. 4th 832, 849 (2d Dist. 1999)) (quotations omitted). 3 There must be a “meeting of minds or an agreement” and “[w]hile 4 an implied in fact contract may be inferred from the conduct, 5 situation, or mutual relation of the parties, the very heart of 6 this kind of agreement is an intent to promise.” Id. (quoting 7 Div. of Labor Law Enf’t v. Transpacific Transp. Co., 69 Cal. App. 8 3d 268, 275 (1st Dist. 1977)). Whether an implied-in-fact 9 contract is created by an employee handbook is “a factual 10 question in each case.” Asmus v. Pac. Bell, 23 Cal. 4th 1, 11 11 (2000). 12 The circumstances in this case do not show that the 13 employee handbook was a contract between each of the individual 14 defendants and Zoom. Upon receipt of the employee handbook, the 15 individual defendants, except for Davis, signed a “Confirmation 16 of Receipt.” (2018 Employee Handbook at 80; 2013 Employee 17 Handbook at 48.) The confirmations of receipt for both handbooks 18 are nearly identical and do not contain any language 19 demonstrating an intent to promise or the individual defendants’ 20 intent to be bound by the handbooks. (2018 Employee Handbook at 21 80; 2013 Employee Handbook at 48.) The confirmation states, in 22 relevant part: “I have received my copy of the company’s Employee 23 Handbook. I understand and agree that it is my responsibility to 24 read and familiarize myself with the policies and procedures 25 contained in the handbook.” (See 2018 Employee Handbook at 80; 26 2013 Employee Handbook at 48.) This statement supports that the 27 individual defendants received the handbook, not that they 28 1 entered into a contract to adhere to the terms of the handbook.7 2 Further, plaintiff’s past Human Resource’s Director 3 testified that some of the policies in the handbook were not 4 meant to “restrict” certain conduct, but merely to “discourage” 5 it. (See Decl. of Thomas Woods ISO Opp’n, Ex. F, Dep. of Amy 6 Breshears, 84:23-85:4 (Docket No. 243-7).) If Zoom’s own Human 7 Resource’s Director did not see each of the policies in the 8 employee handbook as something the employees must be bound by, it 9 follows that there was no “meeting of minds or an agreement” to 10 adhere to the handbook’s policies. See SMC Networks, 2013 WL 11 12114104, at *3. 12 The record also demonstrates that not all of the 13 individual defendants signed confirmations of receipt for the 14 updated 2018 employee handbook, although it states that it 15 supersedes all previously issued handbooks. (2018 Employee 16 Handbook at 5; PSUF ¶¶ 18, 20, 28 (Roe and Crossen signed the 17 2013, but not 2018, employee handbook confirmation of receipt, 18 and Davis did not sign any employee handbook confirmation of 19 receipt).) Therefore, if not all individual defendants even 20 acknowledged receipt of the operative handbook, it cannot be 21 inferred from the parties’ conduct that an implied-in-fact 22 contract was created. See SMC Networks, 2013 WL 12114104, at *3. 23 The record does not demonstrate that the 2013 or 2018 24 7 Notably, a prior confirmation of receipt attached to a 25 2006 version of Zoom’s employee handbook stated that the signing employee acknowledged he or she was to “read, understand, and 26 adhere to company policies.” (Decl. of Martin Jensen, Ex. A 27 (Docket No. 237-7) (emphasis added).) That language is not part of the 2013 or 2018 confirmations. 28 1 handbook is a “binding” contract, but instead was “meant merely 2 to provide guidelines to employees.” See id. (holding that an 3 employee handbook was not a binding contract because the evidence 4 demonstrated that it contained guidelines for the company). 5 Plaintiff has not proven an essential element of its 6 breach of contract claims, the existence of a contract, and the 7 individual defendants have shown that plaintiff cannot present 8 evidence to prove that element. Therefore, summary judgment will 9 be granted in favor of the individual defendants on plaintiff’s 10 second and third claims, and plaintiff’s motion for summary 11 judgment on the same will be denied. 12 C. Claims Five and Six: Trade Secret Misappropriation against Roe, Ramsay, and Power 13 14 Defendants Roe, Ramsay, and Power move for summary 15 judgment on the fifth and sixth claims. The court will analyze 16 the Defend Trade Secrets Act (“DTSA”) and California Uniform 17 Trade Secrets Act (“CUTSA”) claims together as the “elements are 18 substantially similar[:]” (1) the existence of a trade secret, 19 and (2) misappropriation of that trade secret. See InteliClear, 20 LLC v. ETC Global Holdings, Inc., 978 F. 3d 653, 657 (9th Cir. 21 2020). 22 1. Ramsay 23 Regardless of whether the information at issue is a 24 trade secret, plaintiff presents no evidence to create a genuine 25 dispute of material fact that Ramsay misappropriated that 26 information. Plaintiff’s evidence only shows that Ramsay was a 27 “sales rep” for certain prospective customers of Power. (See 28 Decl. of David A. Garcia ISO Opp’n, Ex. 1 (Docket No. 249-3).) 1 Plaintiff’s cited evidence makes no showing of misappropriation 2 by Ramsay, but instead only purports to demonstrate 3 misappropriation by others. (See id.; Pl.’s Opp’n to Employee 4 Defs.’ Mot. at 22 (Docket No. 249) (bullet point list of evidence 5 in support of plaintiff’s argument only describes conduct by 6 other individuals and Power, not Ramsay).) Accordingly, Ramsay’s 7 motion for summary judgment on the fifth and sixth claims for 8 trade secret misappropriation will be granted. 9 2. Roe and Power 10 Roe and Power argue that the information at issue is 11 not a trade secret. A trade secret is “information, including a 12 formula, pattern, compilation, program, device, method, 13 technique, or process, that: (1) derives independent economic 14 value, actual or potential, from not being generally known to the 15 public or to other persons who can obtain economic value from its 16 disclosure or use; and (2) is the subject of efforts that are 17 reasonable under the circumstances to maintain its secrecy.” See 18 Cal. Civ. Code § 3426.1(d); 18 U.S.C. § 1839. 19 Plaintiff alleges that the trade secrets at issue 20 consist of (1) customer lists, which contain specifics on contact 21 information, underlying costs, pricing, and profit margin for 22 each customer; (2) the duration and expiration dates of service 23 contracts sold and serviced by Zoom; (3) Zoom’s employee costs 24 including rates of insurance premiums and salary and its impact 25 on Zoom’s product costs; and (4) the specific costs and prices of 26 maintenance services within the financed loan amounts for Zoom 27 equipment sold to customers. (FAC ¶¶ 213, 230; Pl.’s 28 Identification of Trade Secrets (Docket No. 36-1).) 1 On categories three and four, employee costs and the 2 specific costs and prices of maintenance services, plaintiff 3 presents no evidence to create a genuine dispute that this 4 information is a trade secret. Therefore, summary judgment will 5 be granted in favor of Roe and Power on the fifth and sixth 6 claims to the extent they are based on these two categories of 7 information. 8 A customer list may qualify as a trade secret because 9 of its “economic value” when its “disclosure would allow a 10 competitor to direct its sales efforts to those customers who 11 have already shown a willingness to use a unique type of service 12 or product as opposed to a list of people who only might be 13 interested and [plaintiff] took reasonable steps to protect this 14 information.” Hanger Prosthetics & Orthotics, Inc. v. Capstone 15 Orthopedic, Inc., 556 F. Supp. 2d 1122, 1135 (E.D. Cal. 2008). 16 Here, plaintiff has identified facts showing that the 17 customer information had economic value and Zoom made reasonable 18 efforts to maintain its secrecy, therefore creating a genuine 19 issue of material fact. The customer information in its compiled 20 form not only provides a narrowed list of customers who have 21 “already shown a willingness to use” imaging and document 22 solution services, but also allows Zoom to “tailor its service 23 contracts and pricing to the unique needs of its customers.” See 24 MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 521 (9th Cir. 25 1993) (holding that a customer database, assembled over many 26 years which allowed the defendant competitor to direct its sales 27 efforts to those potential customers that were already using 28 plaintiff’s services, qualified as a trade secret). 1 Plaintiff raises a genuine dispute of material fact 2 over the economic value in this form of compiled customer 3 information because it allows a company to easily identify 4 clients, know whom to contact, and what services to offer at what 5 price. Plaintiff makes a showing that this customer list may not 6 be “readily ascertainable through public sources, such as 7 business directories,” but rather one which Zoom “expended time 8 and effort” on to “identify[] customers with particular needs or 9 characteristics.” See Pyro Spectaculars N., Inc. v. Souza, 861 10 F. Supp. 2d 1079, 1088 (E.D. Cal. 2012). 11 Plaintiff also identifies facts to demonstrate that it 12 took reasonable measures to maintain secrecy over the customer 13 information. Plaintiff’s employee handbook contained a policy 14 for employees to keep “customer lists, [and] knowledge about 15 customers (documents, requirements, preferences, history, etc)” 16 confidential. (2018 Employee Handbook at 36.) Zoom employees 17 could only access customer information for those accounts which 18 were assigned to them. (PSUF ¶¶ 8, 10.) Zoom required passwords 19 for email access, databases, and a software that contained Zoom’s 20 sale and lease agreements. (Id. ¶ 9.) 21 Plaintiff also presents evidence to create a genuine 22 issue of material fact as to whether Roe and Power 23 misappropriated the customer information. “It is well 24 recognized” that “[c]ircumstantial evidence is particularly 25 appropriate in trade secret cases.” See UniRAM Tech., Inc. v. 26 Taiwan Semiconductor Mfg. Co., 617 F. Supp. 2d 938, 944 (N.D. 27 Cal. 2007) (holding that the plaintiff had “offered 28 circumstantial evidence sufficient to create a genuine issue of 1 fact for trial” on a trade secret misappropriation claim). 2 Plaintiff presents evidence that Power employees, who 3 were previously employed by Zoom, created customer lists for 4 Power, consisting of customers they had serviced at Zoom, that 5 included key person and contact information, pricing, and service 6 history. (Decl. of Garcia ISO Opp’n to Emp. Defs.’ Mot., Ex. 1.) 7 Further, Crossen was seen boxing up Zoom customer files before 8 resigning from Zoom and starting employment at Power. (PSUF ¶ 9 101; Decl. of Garcia, Ex. 9, Decl. of Amy Breshears ¶ 11 (Docket 10 No. 238-5).) Plaintiff submitted text messages by Roe in which 11 he asked a Zoom employee to “pull two buyouts” for two different 12 Zoom customers after the employee sent him an invoice for another 13 customer. (PSUF ¶ 130.) Power also took “hundreds of Zoom 14 customers.” (Id. ¶ 97.) Whether or not these circumstances show 15 misappropriation by Power and Roe is a question for the jury. 16 Accordingly, Roe and Power’s motion for summary 17 judgment will be denied because plaintiff has presented evidence 18 that, when viewed in the light most favorable to plaintiff, 19 creates a genuine dispute as to whether the customer information 20 was a trade secret and whether it was misappropriated. 21 D. Claim Seven: Intentional Interference with Contractual Relations against Roe, Ramsay, Lopez, Davis, and Power 22 23 Plaintiff and defendants Roe, Ramsay, Lopez, Davis, and 24 Power move for summary judgment on plaintiff’s seventh claim. A 25 claim for intentional interference with contractual relations 26 requires plaintiff to prove “(1) a valid contract between 27 plaintiff and a third party; (2) defendant’s knowledge of this 28 1 contract; (3) defendant’s intentional acts designed to induce a 2 breach or disruption of the contractual relationship; (4) actual 3 breach or disruption of the contractual relationship; and (5) 4 resulting damage.” Walters v. Fid. Mortg. of CA, 730 F. Supp. 2d 5 1185, 1210 (E.D. Cal. 2010). 6 Plaintiff identifies 366 customers who were formerly 7 Zoom customers and are now Power customers. (Decl. of Joseph 8 Egan ¶ 7, Ex. B (Docket No. 238-9).) Defendants do not dispute 9 that these 366 customers are now Power customers. (PSUF ¶ 135.) 10 Plaintiff argues that defendants intentionally acted to disrupt 11 its contracts with these customers by “unbundling” service 12 contracts from equipment contracts at Zoom so they could easily 13 solicit customers at Power, obtaining a dealer agreement with 14 Toshiba (Zoom’s largest supplier), assisting with the formation 15 of Power, hiring key Zoom personnel, and preparing letters and 16 correspondence informing customers that Zoom was closing its 17 business. (Pl.’s MSJ at 22; Pl.’s Opp’n to Employee Defs.’ Mot. 18 at 24.) 19 However, plaintiff fails to prove defendants actually 20 interfered with any contract that resulted in damages for 21 plaintiff. Of the 366 Power customers that were Zoom customers, 22 plaintiff does not specify whether any customer on the list had 23 an active contract with Zoom at the time that it became a Power 24 customer. If these customers finished their contractual term 25 with Zoom or had at-will contracts, then there would be no 26 disruption to a contract or damages to Zoom when these customers 27 chose to leave Zoom for another competitor. 28 Accordingly, plaintiff fails to present evidence of an 1 essential element of its claim, and therefore, summary judgment 2 will be granted in favor of Power, Roe, Ramsay, Lopez, and Davis 3 on plaintiff’s seventh claim, and plaintiff’s motion for summary 4 judgment on the same will be denied. 5 E. Claim Eight: Computer Fraud and Abuse Act against Roe 6 Roe moves for summary judgment on plaintiff’s eighth 7 claim. The Computer Fraud and Abuse Act (CFAA), 18 U.S.C § 1030, 8 “prohibits a number of different computer crimes, the majority of 9 which involve accessing computers without authorization or in 10 excess of authorization, and then taking specified forbidden 11 actions, ranging from obtaining information to damaging a 12 computer or computer data.” LVRC Holdings LLC v. Brekka, 581 13 F.3d 1127, 1131 (9th Cir. 2009). The CFAA permits “[a]ny person 14 who suffers damage or loss by reason of a violation of this 15 section [to] maintain a civil action against the violator to 16 obtain compensatory damages and injunctive relief or other 17 equitable relief.” 18 U.S.C. § 1030(g). 18 Plaintiff brings this claim based on a violation of 18 19 U.S.C. § 1030(a)(2)(C) under which plaintiff must prove that Roe: 20 “(1) intentionally accessed a computer; (2) without authorization 21 or exceeding authorized access; and that he (3) thereby obtained 22 information (4) from any protected computer (if the conduct 23 involved an interstate or foreign communication), and that (5) 24 there was loss to one or more persons during any one-year period 25 aggregating at least $5,000 in value.” LVRC Holdings LLC, 581 26 F.3d at 1132. 27 Plaintiff alleges that Roe knowingly accessed Zoom’s 28 protected computer system without permission, in excess of his 1 authorized scope, to obtain Zoom customer account details and 2 communications which resulted in financial loss and reputational 3 damage. (FAC ¶¶ 256-59.) However, plaintiff’s presented 4 evidence does not create a genuine issue of material fact about 5 whether Roe “accessed a computer without authorization” or 6 “exceed[ed] authorized access.” 7 Plaintiff presents a text conversation between Roe, 8 after he left Zoom, and a Zoom employee. In the conversation, 9 the Zoom employee sent a phone number for an alleged Zoom 10 customer and a photograph of a printed Zoom invoice for a 11 customer, and Roe asked the employee to “pull two buyouts” for 12 two customers –- to which the employee did not respond. (Decl. 13 of Garcia, Ex. 22 (Docket No. 238-7).) This evidence does not 14 raise a genuine dispute about whether Roe accessed a computer 15 without authorization or exceeded his authorized access. The 16 Zoom employee, and in turn Roe, could have obtained the phone 17 number and invoice without accessing any computer. 18 Plaintiff also cites to an email that Roe received and 19 then forwarded to his wife that allegedly contains confidential 20 information on pay. However, as this court explained in its 21 November 8, 2019 Order on Roe’s Motion to Dismiss (Docket No. 22 53), the Ninth Circuit has held that an employee’s unauthorized 23 disclosure or use of information to which an employer has given 24 an employee access is alone insufficient to prove that the 25 employee exceeded authorized access. See United States v. Nosal, 26 676 F.3d 854, 863-64 (9th Cir. 2012). “[T]he phrase ‘exceeds 27 unauthorized access’ in the CFAA does not extend to violations of 28 use restrictions.” Id. at 863. Roe had authorized access to 1 this email, and the manner in which he used it does not extend to 2 a violation of the CFAA. 3 Further, in its opposition plaintiff argues that Power 4 accessed information without authorization. However, plaintiff 5 only brought this claim against Roe, and therefore, its arguments 6 pertaining to Power are irrelevant. 7 Accordingly, Roe’s motion for summary judgment on 8 plaintiff’s eighth claim will be granted. 9 F. Claim Nine: Breach of Fiduciary Duty against Roe, Ramsay, Lopez, and Davis 10 11 “The elements of a breach of fiduciary duty claim are 12 (1) existence of a fiduciary relationship; (2) breach of the 13 fiduciary duty; and (3) damage proximately caused by that 14 breach.” Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 15 1092, 1104 (E.D. Cal. 2010). 16 1. Ramsay, Lopez, and Davis 17 Defendants Ramsay, Lopez, and Davis argue that no 18 fiduciary relationship existed between them and Zoom. “Under 19 California law, a fiduciary duty exists where an employee 20 participates in the management of a corporation and exercises 21 discretionary authority, while an employee who exercises no 22 management authority is not a fiduciary.” WeRide Corp. v. Kun 23 Huang, 379 F. Supp. 3d 834, 852 (N.D. Cal. 2019) (citing Iconix 24 v. Tokuda, 457 F. Supp. 2d 969, 981 (N.D. Cal. 2006)); see GAB 25 Bus. Servs., Inc. v. Lindsey & Newsom Claim Servs., Inc., 83 Cal. 26 App. 4th 409, 420-21 (4th Dist. 2000) (holding the same), 27 overruled on other grounds, Reeves v. Hanlon, 33 Cal. 4th 1140 28 (2004). “Whether a particular officer participates in management 1 is a question of fact[,] . . . once this factual prerequisite is 2 established, the law imposes a fiduciary duty.” GAB, 83 Cal. 3 App. 4th at 421. 4 a. Ramsay 5 It is undisputed that Ramsay was the Regional Sales 6 Manager for Zoom and was responsible for overseeing the sale of 7 equipment and services to customers, searching for more 8 customers, and overseeing a team of sales representatives. (PSUF 9 ¶ 45.) The record contains no evidence about how large the team 10 was, whether he controlled the budget for the team, or specifics 11 about the type of management authority he had. See WeRide, 379 12 F. Supp. 3d at 853 (holding fiduciary duty existed where the 13 “Director of Hardware” managed a “team of 10-12 engineers” and 14 “controlled the team’s budget”); Iconix, 457 F. Supp. 2d at 981- 15 82 (holding a fiduciary duty existed because the employee managed 16 the largest department at the company, had hiring authority, 17 established the overall objectives and initiatives, and 16 of the 18 company’s 24 employees reported to him). Plaintiff’s evidence is 19 insufficient to prove that Ramsay owed Zoom a fiduciary duty. 20 b. Lopez 21 It is undisputed that Lopez was the Director of 22 Marketing at Zoom and “her duties included preparing marketing 23 material and communicating with Roe.” (PSUF ¶ 99.) Plaintiff 24 argues that Lopez “assisted with new hiring of personnel in the 25 sales team,” however, the evidence plaintiff cites in support 26 states that Lopez assisted with hiring in her new role at Power, 27 not Zoom. (Compare Pl.’s Reply at 19 (Docket No. 253) with PSUF ¶ 28 100.) The record is insufficient to establish that Lopez 1 participated in management or exercised discretionary authority, 2 and therefore, there is no fiduciary relationship between Lopez 3 and Zoom. 4 c. Davis 5 It is undisputed that Davis “served as the Vice 6 President of Service and Operations for Zoom, in charge of the 7 continued financial success of services and operations for Zoom.” 8 (PSUF ¶ 88.) This vague statement of Davis’ duties is 9 insufficient to demonstrate what his role was in the 10 “participation of management” and whether he had “discretionary 11 authority.” GAB, 83 Cal. App. 4th at 421-22 (holding that a 12 fiduciary relationship existed because the employee made 13 “decisions and commitments on complex and important issues,” had 14 “authority to develop and/or approve policies,” controlled a $20 15 million budget, and had “final responsibility” on the 16 “supervision and management of others”). Therefore, there is no 17 fiduciary relationship between Davis and Zoom. 18 2. Breach of Fiduciary Duty Claim against Roe 19 As an initial matter, Roe argues that even though he 20 was President of Zoom, on or about February 12, 2019 he ceased 21 owing a fiduciary duty to Zoom. (Defs.’ Joint Opp’n at 33.) He 22 was allegedly informed by his direct supervisor, George 23 Cavallaro, the Senior Vice President at Xerox, that Zoom offices 24 would close down and that Roe would be terminated. (Roe and 25 Power SUF ¶¶ 19, 21; Decl. of Edward Roe ¶ 5 (Docket No. 239-2).) 26 Roe argues that he stayed with Zoom until April 3, 2019 because 27 Cavallaro asked him to help with the transition, but that 28 effectively he no longer had “the discretion to run the business 1 he had before.” (Roe and Power SUF ¶ 21; Defs.’ Joint Opp’n at 2 34.) 3 “Even when an officer loses power or authority, that 4 officer still owes a fiduciary duty to the corporation. To 5 divest himself [] of the duty, the officer mut resign the 6 office.” GAB, 83 Cal. App. 4th at 421. Therefore, even if Roe 7 was told he would be terminated, he officially remained President 8 of Zoom and owed a fiduciary duty until April 3, 2019. 9 Plaintiff argues that Roe breached his fiduciary duty 10 by: (1) forming Power on March 13, 2019; (2) soliciting business 11 from Toshiba in February and March 2019; (3) obtaining a line of 12 credit on behalf of Power while still at Zoom; (4) instructing 13 Zoom employees to find real estate space for Power while he was 14 still at Zoom; (5) creating a business plan on behalf of Power to 15 submit to Toshiba while at Zoom; and (6) using Zoom’s 16 “confidential employee salary information” to recruit Zoom 17 employees to work at Power. (Pl.’s MSJ at 18.) 18 Roe had a duty to “protect the interests of [Zoom], 19 [and] also to refrain from doing anything that would work injury 20 to the corporation, or [] deprive it of profit or advantage which 21 his skill and ability might properly bring to it.” Bancroft- 22 Whitney Co. v. Glen, 64 Cal. 2d 327, 345 (1966). The Ninth 23 Circuit explained that “[w]hether or not a corporate opportunity 24 exists is largely a question of fact to be determined from the 25 objective facts and surrounding circumstances existing at the 26 time the opportunity arises.” Robinson, Leatham & Nelson, Inc. 27 v. Nelson, 109 F.3d 1388, 1393 (9th Cir. 1997) (quotations 28 omitted). “The mere fact that the officer makes preparations to 1 compete before he resigns his office is not sufficient to 2 constitute a breach of duty. It is the nature of his 3 preparations which is significant.” Bancroft, 64 Cal. 2d at 346. 4 Roe presents evidence that Zoom was set to close all 5 offices and the business, and that he was being terminated. (Roe 6 and Power SUF ¶¶ 19, 20; Decl of Garcia, Ex. 9, Decl. of Amy 7 Breshears ¶ 3.) Employees also state they left Zoom because of 8 the plan to close Zoom offices and change conditions of their 9 employment. (Roe and Power SUF ¶ 24.) Defendants argue that 10 though Zoom still exists in name, it does little business. 11 However, Zoom presents evidence that its services and employees 12 would not be impacted by the plan to consolidate office space, 13 and that the business itself was not closing. (Decl of Garcia, 14 Ex. 9, Decl. of Amy Breshears ¶¶ 6-7.) Whether Roe usurped a 15 corporate opportunity is dependent on the state of Zoom at the 16 time of his creation of Power. There is a genuine dispute of 17 material fact about the “surrounding circumstances at the time” 18 of Roe’s alleged conduct.8 19 In conclusion, Ramsay, Lopez, and Davis’ motion for 20 summary judgment on plaintiff’s ninth claim will be granted. 21 Plaintiff and Roe’s motions for summary judgment as to the same 22 will be denied. 23 G. Claim Ten: Breach of Loyalty against Roe, Ramsay, Lopez, and Davis 24 25 Plaintiff and defendants Roe, Ramsay, Lopez, and Davis 26 8 During oral argument, plaintiff’s counsel cited Johnson 27 v. Superior Court, 38 Cal. App. 4th 463 (1995) in support of his argument that Roe’s conduct breached his fiduciary duty. Upon 28 review, Johnson is inapposite to the issue before the court. 1 move for summary judgment on the tenth claim. Plaintiff must 2 prove: “(1) the existence of a relationship giving rise to a duty 3 of loyalty; (2) one or more breaches of that duty; and (3) damage 4 proximately caused by that breach.” E.D.C. Techs., Inc. v. 5 Seidel, 216 F. Supp. 3d 1012, 1016 (N.D. Cal. 2016). 6 Plaintiff pleads the claims for breach of fiduciary 7 duty and breach of loyalty separately but analyzes them together. 8 (Pl.’s MSJ at 20.) “Although they are similar, breach of 9 fiduciary duty and breach of the duty of loyalty are two distinct 10 claims under California Law.” E.D.C. Techs., 216 F. Supp. at 11 1016. An employer may bring a duty of loyalty claim against a 12 non-fiduciary employee as “California courts generally have not 13 distinguished between managerial employees and lower-level 14 employees.” Id. 15 California Labor Code section 2863 imposes on employees 16 a duty of loyalty to their employer. Section 2863 requires any 17 “employee who has any business to transact in his own account, 18 similar to that entrusted to him by his employer, [to] always 19 give the preference to the business of the employer.” Therefore, 20 Roe, Ramsay, Lopez, and Davis had relationships with Zoom that 21 gave rise to a duty of loyalty, regardless of whether they each 22 had a fiduciary relationship with Zoom. 23 Plaintiff argues that Roe breached the duty of loyalty 24 in the same manner that he breached his fiduciary duty. As 25 discussed above, there is a genuine dispute of material fact 26 about whether Zoom was planning to close its business or simply 27 consolidate office space at the time that Roe created Power. If 28 Zoom did indeed plan to close operations, it follows that Roe 1 would not be taking business away from Zoom in violation of his 2 duty of loyalty. Therefore, a genuine dispute of fact exists 3 pertinent to whether Roe breached his duty of loyalty. 4 Plaintiff presents evidence that Ramsay and Davis were 5 taking steps to form Power while employed by Zoom, including 6 finding real estate space, setting up payroll, registering the 7 Power website domain name, and creating a business plan to submit 8 to Toshiba on behalf of Power. (PSUF ¶¶ 46, 71, 90, 112, 117, 9 119, 121-23, 127.) However, if these steps damaged Zoom in any 10 manner is in dispute given the opposing evidence submitted by 11 both sides as to the state of Zoom’s future. Therefore, there is 12 a genuine dispute of material fact relevant to whether Ramsay and 13 Davis breached their duty of loyalty. 14 For Lopez, the only evidence presented by plaintiff 15 shows that Lopez was aware that certain Power employees were 16 previously employees of Zoom. (PSUF ¶ 17, 99-100 (citing Decl. 17 of Garcia, Ex. 19, Dep. of Maura Lopez).) This evidence does not 18 demonstrate that Lopez used Zoom’s allegedly confidential 19 compensation data to poach employees, nor does it prove that she 20 breached her duty of loyalty to Zoom. (Pl.’s Opp’n to Employee 21 Defs.’ Mot. at 27.) 22 For the foregoing reasons, Lopez’s motion for summary 23 judgment on plaintiff’s tenth claim will be granted. Plaintiff 24 and defendants Roe, Ramsay, and Davis’ motions for summary 25 judgment on the same will be denied. 26 H. Civil Conspiracy 27 Within its seventh, ninth, and tenth claims, plaintiff 28 alleges that defendants Roe, Ramsay, Lopez, and Davis were part 1 of a civil conspiracy to commit the alleged violation of Zoom’s 2 rights. (FAC ¶¶ 248, 265, 276.) Civil “[c]onspiracy is not a 3 cause of action, but a legal doctrine that imposes liability on 4 persons who, although not actually committing a tort themselves, 5 share with the immediate tortfeasors a common plan or design in 6 its preparation.” Applied Equip. Corp. v. Litton Saudi Arabia 7 Ltd., 7 Cal. 4th 503, 510–11 (1994). Under California law, a 8 party may be vicariously liable for another's tort in 9 a civil conspiracy where the plaintiff shows “(1) formation and 10 operation of the conspiracy and (2) damage resulting to plaintiff 11 (3) from a wrongful act done in furtherance of the common 12 design.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1062 (2006) (citing 13 Doctors’ Co. v. Superior Court, 49 Cal. 3d 39, 44 (1989)). 14 A claim for civil conspiracy is a derivative action 15 that can only succeed when based on an independent tortious act. 16 Entm't Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 17 F.3d 1211, 1228 (9th Cir. 1997). Defendants will be granted 18 summary judgment on plaintiff’s seventh claim and therefore no 19 liability based on civil conspiracy can exist for that claim. 20 For the ninth claim, it has been established that the 21 employee defendants did not have a fiduciary duty toward Zoom, 22 and therefore, they cannot be liable for the claim based on a 23 theory of conspiracy. See Applied Equip., 7 Cal. 4th at 511 24 (“[T]ort liability arising from conspiracy presupposes that the 25 coconspirator is legally capable of committing the tort, i.e., 26 that he or she owes a duty to plaintiff recognized by law and is 27 potentially subject to liability for breach of that duty.”) 28 For the tenth claim, plaintiff presents no undisputed 1 evidence of the formation and operation of a “common plan or 2 design in [] preparation” of the tort between Roe, Ramsay, Lopez, 3 and Davis. See Hanger Prosthetics & Orthotics, 556 F. Supp. 2d 4 at 1139. Plaintiff must prove that Roe, Ramsay, Lopez, and Davis 5 had “actual knowledge that a tort is planned and concur[red] in 6 the tortuous scheme with knowledge of its unlawful purpose.” Id. 7 Here, the record does not demonstrate knowledge on behalf of Roe, 8 Ramsay, Lopez, and Davis that they were engaging together in an 9 unlawful purpose. 10 Therefore, plaintiff’s motion for summary judgment 11 based on its civil conspiracy theory within its seventh, ninth, 12 and tenth claims will be denied. 13 IT IS THEREFORE ORDERED that: 14 1. On the claim for relief 1 for breach of contract, 15 plaintiff’s motion for summary judgment be, and the same hereby 16 is, DENIED and defendant Roe’s motion for summary judgment be, 17 and the same hereby is, GRANTED. 18 2. On the claim for relief 2 for breach of contract, 19 plaintiff’s motion for summary judgment be, and the same hereby 20 is, DENIED and defendants Roe, Ramsay, Lopez, Crossen, Davis, and 21 Peebler’s motions for summary judgment be, and the same hereby 22 are, GRANTED. 23 3. On the claim for relief 3 for breach of contract, 24 plaintiff’s motion for summary judgment be, and the same hereby 25 is, DENIED and defendants Roe, Lopez, and Crossen’s motions for 26 summary judgment be, and the same hereby are, GRANTED. 27 4. On the claims for relief 5 and 6 for trade secret 28 misappropriation, defendant Ramsay’s motion for summary judgment 1 be, and the same hereby is, GRANTED and defendants Roe and 2 Power’s motion for summary judgment be, and the same hereby is, 3 GRANTED with respect to information about employee costs and 4 costs of maintenance services, and DENIED in all other respects. 5 5. On the claim for relief 7 for intentional 6 interference with contractual relations, plaintiff’s motion for 7 summary judgment be, and the same hereby is, DENIED and 8 defendants Roe, Power, Ramsay, Lopez, and Davis’ motions for 9 summary judgment be, and the same hereby are, GRANTED. 10 6. On the claim for relief 8 for the Computer Fraud and 11 Abuse Act, defendant Roe’s motion for summary judgment be, and 12 the same hereby is, GRANTED. 13 7. On the claim for relief 9 for breach of fiduciary 14 duty, plaintiff and defendant Roe’s motions for summary judgment 15 be, and the same hereby are, DENIED and defendants Ramsay, Lopez, 16 and Davis’ motion for summary judgment be, and the same hereby 17 is, GRANTED. 18 8. On the claim for relief 10 for breach of the duty of 19 loyalty, plaintiff and defendants Roe, Ramsay, and Davis’ motions 20 for summary judgment be, and the same hereby are, DENIED and 21 defendant Lopez’s motion for summary judgment be, and the same 22 hereby is, GRANTED. 23 9. Plaintiff’s motion for summary judgment based on its 24 theory of civil conspiracy within its seventh, ninth, and tenth 25 claims be, and the same hereby is, DENIED. 26 Plaintiff’s claims for relief 5 and 6 for trade secret 27 misappropriation against Roe and Power, claim for relief 9 for 28 breach of fiduciary duty against Roe, and claim for relief 10 for ee nn ee en ne on nnn on nnn nn nn nn nnn en on nnn en 1 breach of loyalty against Roe, Ramsay, and Davis remain pending 2 in this action. od ehlemn Ah (hi. 3 Dated: September 1, 2022 WILLIAMB SHUBB © 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32