Pursuant to the provisions of Government Code section 68115, at the Court’s request California Supreme Court Chief Justice Tani Cantil-Sakauye has issued an emergency order permitting the closing of the Court’s facilities to the public, with minimal exceptions from March 17, 2020 through March 27, 2020. In addition, the Chief Justice issued an advisory on March 20, 2020 calling for the suspension of all civil trials, hearings, and proceedings for at least 60 days, with the exception of time-sensitive matters.

Therefore, all hearing dates on any civil case set during the next 60 days (including court and jury trials in progress or calendared to begin during this timeframe) are deemed vacated and will be reset for a date beyond 60 days. Notice will be provided to all parties. Although hearings may continue to display as calendared in electronic online case access, no hearings will be conducted during the closure period.

 

 

 

 

 

 

 

 

 

 

DEPARTMENT C33 LAW AND MOTION

 Judge James L. Crandall

 

 

APPEARANCES:

If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5233) to notify the court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling.

 

If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the court’s tentative ruling.

 

PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.

 

This court will not provide a court reporter for law and motion matters. Please see court web site for further details.

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: March 12, 2020 at 1:30 p.m.

 

#

Case Name

Tentative Ruling

1

Progressive Transportation Service, Inc. vs. Bowermaster and Associates Insurance Agency, Inc.

 

30-2018-01035798

Demurrer to Second Amended Cross-Complaint filed by Cross-Defendants RSG Insurance Services, LLC and R-T Specialty Insurance Services, LLC

 

ANALYSIS: 

 

a.         Cross-defendants’ request for judicial notice

 

Cross-defendants requests judicial notice of:

(1) this court’s April 11, 2019 tentative ruling (Exhibit 1);

(2) a letter/quote issued by cross-defendants to cross-complainants that was discussed in the Second Amended Cross-Complaint (Exhibit 2);

(3) cross-complainants’ opposition to cross-defendants’ demurrer to the cross-complaint (Exhibit 3); and

(4) this court’s October 17, 2019 tentative ruling on cross-defendants’ demurrer to the cross-complaint (Exhibit 4).

 

This court will take judicial notice of its tentative rulings and documents filed in this litigation (Exhibits 1, 3-4).  (Evid. Code, § 452, subd. (d).) 

 

The court denies judicial notice of the letter/quote (Exhibit 2).

 

Evidence Code section 452, subdivision (h) provides that judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  The opposition papers do not expressly concede that this document is the true and correct copy of the letter/quote.  Nor is this document “not reasonably subject to dispute” and “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  The proper method to submit this exhibit would be by way of a declaration that establishes the foundation for the document.

 

b.         Cross-defendants’ demurrer to the 1st cause of action for implied equitable indemnity

 

First, cross-defendants contend that Bowermaster’s sole negligence precludes equitable indemnity.  Cross-defendants submit a copy of the alleged quote (Request for Judicial Notice, Exhibit 2).  They contend the quote establishes that Bowermaster was informed of the change in terms of the policy.  Cross-defendants contend that they should not be held liable for “Bowermaster’s own professional negligence and failure to advise Bowermaster’s client, despite having knowledge of the premium calculation change.” (Demurrer, at p. 16.) .

 

“A demurrer tests the sufficiency of the complaint as a matter of law. .. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all facts properly pleaded.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 391.)  “We also consider matters which may be judicially noticed.” (Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 352, 359.)  “In considering the merits of a demurrer, however, ‘the facts alleged in the pleading are deemed to be true, however improbable they may be.’ [Citations.]” (Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280.) 

 

In the present case, Exhibit 2 is not attached to the underlying Complaint and cannot be “read as part of the of the SACC’s allegations” as asserted in the demurrer. (Demurrer, at p. 23.)  Therefore, we must accept the factual allegations in the Second Amended Cross-Complaint as true. (Hacker v. Homeward Residential, Inc., supra, 26 Cal.App.5th at p. 280.) 

 

The Second Amended Cross-Complaint alleges that cross-complainants relied on the quote provided by cross-defendants when it prepared a written insurance proposal for Progressive, and the quote provided by cross-defendants did not mention the unilateral change. (SAXC, at ¶ 13.)  Therefore, cross-defendants’ first contention fails.

 

Second, cross-defendants contend “there is no judgment or settlement giving rise to equitable indemnity.”  They contend that this claim does not accrue until payment of a judgment or settlement is made, and as such, this claim should be dismissed. 

 

For pleading purposes, the law is well settled that “a defendant whose negligence is alleged to have caused an accident may file a cross-complaint for equitable indemnity against concurrent tortfeasors.” (Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1187; see Herrero v. Atkinson (1964) 227 Cal.Ap.2d 69, 78-79.)  Generally, “defendants may cross-complaint against any person from whom they seek equitable indemnity.  Defendants need only allege that the harm for which they are being sued is attributable, at least in part, to the cross-defendant.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:529.) 


Third, cross-defendants contend the complaint sounds in contract, there are no factual allegations against cross-defendant RSG in support of tort liability, and therefore the cross-complaint is beyond equitable relief.  

 

To establish a claim for equitable indemnity, cross-complainants must allege: (1) that cross-defendants were negligent/engaged in a tortious conduct; and (2) that cross-defendants’ negligence/tortious conduct contributed as a substantial factor in causing plaintiff’s harm. (CACI No. 3800.)  

 

“It is well-settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff’s injury.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040.)  Generally, “there must be some basis for tort liability against the proposed indemnitor” to apply the principles of equitable indemnity. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.)  “‘A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, ‘“[c]ourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.”’” (Id. at p. 853.) 

 

Progressive asserts a negligence cause of action against Bowermaster and Rose, and a negligent misrepresentation cause of action against Bowermaster, in the First Amended Complaint.  Bowermaster and Rose contend that cross-defendants are their insurance brokers who also provide them with “comprehensive wholesale brokerage and underwriting management services.” (SAXC, at ¶¶ 7-8.)  They assert that cross-defendants procured a renewal of the insurance policy, cross-defendants provided a written quote for the 2017-2018 policy, the renewed terms included a unilateral change in terms, and cross-defendants failed to inform them of the change in terms. (SAXC, at ¶ 13.)  Cross-defendants’ equitable indemnity claim is based on the alleged wrongful conduct of cross-defendants that does not “sound in contract.” (SAXC, at ¶ 21.)  Therefore, this contention fails.

 

Fourth, cross-defendants contend the implied equitable indemnity cause of action is “rendered uncertain, unintelligible, vague and ambiguous” because: (1) it fails to allege any facts that could make cross-defendant RSG liable for Bowermaster’s failure to tell Progressive what Bowermaster knew about the rate calculation change; and (2) it fails to allege any basis for liability or indemnity against cross-defendant RSG.  The memorandum of points and authorities for the demurrer fails to provide a concise statement of the law and a discussion of the authority relied on. (See California Rules of Court, rule 3.1113(b) [“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”].)  Additionally, a demurrer based on uncertainty will be sustained only where the complaint is so bad that cross-defendants cannot reasonably respond. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Here, the Second Amended Cross-Complaint is not so bad that cross-defendants cannot reasonably respond to the pleading. 

 

c.         Cross-defendants’ demurrer to the 2nd cause of action for contribution

 

First, cross-defendants contend a claim for contribution requires the allegation of shared liability.  They contend “[t]here is no shared liability to Progressive for Bowermaster’s failure to read the policy.” (Demurrer, at p. 21.)  Cross-defendants contend there is no basis to make them liable for “Progressive’s sole negligence.” (Ibid.

 

Equitable contribution for obligations “is the right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution.” (Fireman’s Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1293.)  This right is codified in Civil Code section 1432. (Id. at p. 1293 fn. 3.)  Contribution may also be apportioned among tortfeasors pursuant to Civil Code section 875. (Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378 fn. 6.)

 

In the present case, cross-defendants’ contention relies on the same assertion for the 1st cause of action, i.e., that Bowermaster’s sole negligence precludes equitable indemnity.  As discussed above, this contention fails because we must accept the factual allegations in the Second Amended Cross-Complaint that the quote provided by cross-defendants to cross-complainants did not mention the unilateral change.  Therefore, based on the asserted contentions, the demurrer is overruled.

 

Second, cross-defendants “incorporates by reference” all the arguments discussed above including the special demurrer. 

 

d.         Cross-defendants’ demurrer to the 3rd cause of action for declaratory relief

 

General authority for declaratory relief

 

The existence of an “actual controversy relating to the legal rights and duties of the respective parties,” suffices to maintain an action for declaratory relief. (Code Civ. Proc., § 1060.) “Any person…who desires a declaration of his or her rights or duties with respect to another…may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights…”  (Code Civ. Proc., § 1060.) 

 

“‘“The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.”’ [Citation.]” (American Way Cellular, Inc. v. Travelers Property Casualty Co. of America (2013) 216 Cal.App.4th 1040, 1054.) “‘[A]n actual, present controversy must be pleaded specifically.’ ... [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) “‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character....’ ” (Pacific Legal Foundation v. California Coastal Com (1982) 33 Cal.3d 158, 170–171.) “The court may sustain a demurrer on the ground that the complaint fails to allege an actual or present controversy, or that it is not ‘justiciable.’” (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.)

 

“‘[W]e have found no authority for the proposition that declaratory relief is proper procedure when the rights of the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased to exist and there is no conduct of the parties subject to regulation by the court.’ [Citation.] ‘There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs....' [Citation.]” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 367.)

 

Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs. [Citations.] It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs. In short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them. [Citation.]” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Accordingly, J.R. has not stated facts sufficient to constitute a cause of action for declaratory relief.

         

RULING: Cross-Defendants RSG Insurance Services, LLC and R-T Specialty Insurance Services’ demurrer to the Second Amended Cross-Complaint is OVERRULED, with 10-days to Answer.

 

Prevailing party is to give notice.

 

 

Future Hearings:

Motion to Appear Pro Hac Vice: 4/9/20

MSC: 9/11/20

Jury Trial: 10/19/20

 

2

Farah vs. Van Sickle

 

30-2017-00946231

Motion to Strike or Tax Costs filed by Plaintiff Michael Farah

 

Plaintiff and cross-defendant Michael Farah moves for an order striking the memo of costs filed by defendants and cross-complainants Rod Van Sickle and Kim Cashman.  In the alternative, Farah seeks an order taxing costs of $10,170.30.            

 

Farah contends that the memo of costs was untimely filed and served under CRC 3.1700.

 

Subdivision (a)(1) of that rule provides that “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

 

Farah contends that Van Sickle and Cashman gave notice of the judgment on May 30, 2019, which makes the memo of costs filed on July 23, 2019 untimely.  However, this is incorrect.  The notice given on May 30, 2019 indicated that the Court had entered an order granting the motion for summary judgment on April 23, 2019, and the Court did not enter judgment until June 28, 2019.  Van Sickle and Cashman then filed and served notice of entry of judgment on July 8, 2019, which makes the memo of costs timely. 

 

Farah contends that individual costs be taxed.  Under Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775, if the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.

 

On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.  Ibid.  Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.  Ibid.  However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. 

 

Van Sickle and Cashman claim $1450.00 in filing and motion fees, and Farah objects to $80.00 as not being necessary.  However, Van Sickle and Cashman have itemized the fees for filing costs as $870 for the answer, $500 for the motion for summary judgment, $60 for an ex parte application and proposed order, and $20 for the stipulation to consolidate cases and proposed orders, and this appears appropriate and therefore recoverable. 

 

Van Sickle and Cashman claim $2873.69 for depositions and Farah contends that this amount should be taxed in its entirety because the parties did not use deposition testimony in their motions for summary judgment.  He also contends that travel costs of $95.94 should be disallowed because all of the depositions were taken in Long Beach and Orange County.  However, Van Sickle and Cashman have itemized the deposition costs and they are not unreasonable.  Moreover, defense counsel attests in his declaration that all of these depositions were noticed by Farah’s counsel, which means that the costs were necessary. 

 

Van Sickle and Cashman claim $255.09 in service of process costs, and Farah contends that this amount should be taxed in its entirety.  Van Sickle and Cashman have itemized this cost to show that $33.85 was for service on John W. Reed, Jr., $110.62 was for service on Richard E. Masson, and $110.62 was for service on Wells Fargo Bank.  These costs do not appear to be unreasonable.

 

Van Sickle and Cashman claim $3054.45 in attachment expenses, and Farah contends that this item should be taxed in its entirety because there was no attachment in this case.  In fact, there was no attachment in this case, but a careful review of the cost bill indicates that these items were not incurred in an attachment proceeding but they are additional items listed in the attachment to the cost bill, i.e., they are listed on the additional pages rather than the main pages.  The costs consist of: $1153.15 for the deposition of Rachel Puckett, $742.26 for service of process of costs (further broken down into $221.24 for service on Robert Tamez, $78.54 for service on Tesla, Inc., $221.24 for service on Richard E. Masson, $110.62 for service on Hamilton Oaks Trabuco, Inc., and $110.62 for service on Hamilton Oaks Vineyard & Winery), and $514.05 and $645.00 for court reporter fees paid to Atkinson Baker.  No detail is given as to when the court reporter fees claimed in this item were incurred or for what.  As a result, both amounts will be taxed for a total of $1159.05.

 

Van Sickle and Cashman claim an additional $995.00 in court reporter fees, and Farah contends that the amount should be taxed in its entirety because there is no explanation for them.  This argument has merit because there is no indication when the fees were incurred or for what.  The entire $995.00 will be taxed. 

 

Van Sickle and Cashman claim $1796.43 for models, enlargements, and photocopies of exhibits, and Farah contends that this amount should be taxed entirely because the matter was resolved on summary judgment. Subdivision (a)(12) of Code Civ. Proc. § 1033.5 provides that the costs of models, photocopies, and blowups of exhibits “reasonably helpful to aid the trier of fact” are allowable.  Van Sickle and Cashman point out that the Court looked at maps during oral argument on the motions for summary judgment, but they do not indicate what the cost of this particular exhibit was.  As a result, the entire $1796.43 is taxed. 

 

Van Sickle and Cashman claim $1115.63 for fees incurred for electronic filing or service of documents through an electronic service provider, and Farah contends that the entire amount should be taxed for lack of supporting documentation.  However, the Court requires documents to be filed electronically, and there is a fee for that service, which means that the amount appears to be reasonable and necessary. 

                                                                                                                                                                                                                                                                                                                                                                 

RULING:  The motion of plaintiff and cross-defendant Michael Farah for an order striking the memo of costs filed by defendants and cross-complainants Rod Van Sickle and Kim Cashman is denied.

 

The alternative motion to tax costs is granted in part and denied in part.

 

The motion to tax costs is granted to the extent that the following costs are taxed:  $1159.05 for court reporter fees claimed as “attachment expenses,” $995.00 for court reporter fees, and $1796.43 for models, enlargements, and photocopies of exhibits.  In all other respects, the motion is denied. 

 

 

Future Hearings:

No future hearings

 

3

Garcia vs. South Coast Global Medical Center

 

30-2019-01060953

1.Motion to Compel Answers to Form Interrogatories filed by Defendant Davinder Singh

2.Motion to Compel Answers to Form Interrogatories filed by Defendant Davinder Singh

3.Motion to Compel Answers to Form Interrogatories filed by Defendant Davinder Singh

4.Motion to Compel Answers to Special Interrogatories filed by Defendant Davinder Singh

5.Motion to Compel Answers to Special Interrogatories filed by Defendant Davinder Singh

6.Motion to Compel Answers to Special Interrogatories filed by Defendant Davinder Singh

7.Motion to Compel Answers to Form Interrogatories filed by Defendant Essam R Quraishi

8. Motion to Compel Answers to Form Interrogatories filed by Defendant Essam R Quraishi

9. Motion to Compel Answers to Form Interrogatories filed by Defendant Essam R Quraishi

10. Motion to Compel Answers to Special Interrogatories filed by Defendant Essam R Quraishi

11. Motion to Compel Answers to Special Interrogatories filed by Defendant Essam R Quraishi

12. Motion to Compel Answers to Special Interrogatories filed by Defendant Essam R Quraishi

13. Motion to Compel Production filed by Defendants Essam R Quraishi and Davinder Singh

14. Motion to Compel Production filed by Defendants Essam R Quraishi and Davinder Singh

15. Motion to Compel Production filed by Defendants Essam R Quraishi and Davinder Singh

 

No opposition was filed to any of the motions.

 

08/20/19

15 sets of discovery served by Dr. Defendants on all plaintiffs jointly

 

 

09/23/19

Extension requested; granted until 10/08/19

 

 

10/29/19

Additional extension requested; granted until 11/08/19

 

 

11/13/19

Unverified, incomplete responses served

 

 

11/26/19

Meet/confer correspondence – provide further verified responses by 12/09/19

 

 

12/09/19

Email response – will provide a response no later than 12/13/19 – no responses/verifications served

 

 

12/27/19

Motion filed

 

Although responses were served, they were unverified.  The lack of verification is established by the Declaration of Attorney Stiltz and Ex. E to the Declaration which shows that no verification was attached to the responses served.

 

Unsworn responses to discovery requests are tantamount to no responses at all.  Zorro, Inc. Co. . Great Pacific Securities Corp. (1977) 69 Cal.App.3rd 907, 914 

 

For this reason, this is properly treated as a straight motion to compel for failure to respond.  [CCP §2030.290]

 

RULINGS:

 

Defendant’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and to Compel Production of Documents are GRANTED.  [CCP §2030.290]

 

Plaintiffs are ordered to serve complete verified responses without objections within 15 days from the date of this hearing.

 

 

Future Hearings:

MSJ: 3/26/20

MSC: 11/20/20

Jury Trial: 12/21/20

 

4

NORTHRIDGE FOODS, INC vs. WKS RESTAURANT CORPORATION

 

30-2018-01027512

Motion for Summary Judgment and/or Adjudication filed by Defendant WKS Restaurant Corporation

 

The Motion for Summary Judgment or Adjudication brought by Defendant WKS Restaurant Corporation is DENIED, in its entirety.

 

Initially, the Court interprets this Motion as a Motion for Summary Judgment, only, given Defendant failed to submit requests for adjudication which comply with C.C.P. §437c(f).

 

Moreover, while Defendant attempted to invoke C.C.P. §437c(t), this provision requires the parties submit a Joint Stipulation agreeing to adjudication of the issues, along with Declarations which assert the Motion will further the interests of judicial economy. (C.C.P. §437c(t)(1)).  

 

Following compliance with these requirements, the Court is required to notify the parties whether the Motion will be permitted. (C.C.P. §437c(t)(2)). The record of this action does not reveal compliance with C.C.P. §437c(t).  

 

Thereafter, the Motion for Summary Judgment is DENIED as the contracts which form the basis of this action are ambiguous and triable issues exist, as to the intent of the parties.

 

“The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting.” (See People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 1396).  “When a contract is reduced to writing, the parties’ intention is determined from the writing alone, if possible.” (Id.).  “The words of a contract are to be understood in their ordinary and popular sense.” (Id.). 

 

Courts “must give a ‘reasonable and commonsense interpretation’ of a contract consistent with the parties’ apparent intent.” (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 526).  “The language ‘in a contract must be construed in the context of that instrument as a whole.’” (Id.).  “Further, if possible, the court should give effect to every provision of the contract.” (Id.).

 

“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civil Code §1638).  Moreover, “[s]everal contracts relating to the same matters, between the same parties, and made as part of substantially one transaction, are to be taken together.” (Civil Code §1642).

 

Here, several agreements were executed between the parties which potentially outline or affect the rights to the subject building.

 

On September 27, 2004, Plaintiff Northridge Foods, Inc. and Defendant W.K.S. Restaurant Corporation entered into an “Asset Purchase Agreement,” which indicates “Seller desires to sell to Purchaser all, but not less than all, of the operating assets of the restaurant and related personal property, and Purchaser desires to purchase all of such assets…” (¶10 of Spongberg Declaration and Exhibit 2 [emphasis added]).

 

The Agreement defines “Real Property” to mean “all land and improvements subject to Leases” and “Assets” is defined to include personal, rather than real, property.  (Id. at §1.1 of Exhibit 2).  Nowhere in the Asset Purchase Agreement is the right to real property clearly transferred.   At most, the Asset Purchase Agreement requires transfer of “all records and files related to the Real Property,” but not the Real Property itself. (See §1.1 of Exhibit 2).

 

Despite the above, ambiguities exist in connection with the Assignment of the Ground Lease and the Lease Agreement:

 

The Ground Lease between Balboa Nordhoff Center and Northridge Foods provides, in relevant part:  “Title to the building and all other improvements on the leased premises and any repairs, alterations, additions or improvements to said building or improvements shall be vested in and remain in Lessee’s name at all times during the original term of this Lease and any renewal or extension thereof… ” (¶12 of Spongberg Declaration and §17 of Exhibit 4 [emphasis added]).

 

On December 20, 2004, an “Assignment of and Second Amendment to Lease” was executed between Balboa Nordhoff Center (“Landlord”), Northridge Foods, Inc. (“Assignor”) and W.K.S. Restaurant Corporation (“Assignee”), which provides: “Assignor hereby assigns and transfer to Assignee…all of Assignor’s right, title and interest in and to the Lease and Assignee accepts from Assignor all right, title, and interest, subject to the terms and conditions set forth in this Agreement.” (§2 of Exhibit 5).

 

A reasonable interpretation of these provisions is that Plaintiff transferred its interest in the building; however, it is equally possible the Ground Lease, rather than providing ownership of the building to the Lessee, intended to maintain the status quo, prior to requiring transfer to the Ground Lessor. 

 

Whether or not the Ground Lease originated Plaintiff’s interest in the building or transferred interest in the building to Plaintiff is a triable issue.

 

Similar ambiguity exists in the Lease between Plaintiff and Defendant.

 

On December 27, 2004, Northridge Foods, Inc. and W.K.S. Restaurant Corporation executed a Standard Industrial/ Commercial Single-Tenant Lease, for the lease of the building at a rental rate of $4,000 per month.  (See ¶14 of Spongberg Declaration and Exhibit 6).

 

The Lease defines the Premises as “[t]hat certain building including all improvements therein or to be provided by Lessor under the terms of this Lease and commonly known as 16950 Nordhoff Boulevard, Northridge, California 91343.” (§1.2 of Exhibit 6).  The Lease was set to expire on December 31, 2018. (§1.3 of Exhibit 6).

 

An Addendum to the Lease executed on December 27, 2004 included the following provision: “Ownership.  All Alterations and Utility Installations made by Lessee shall be the property of Lessee.  On the termination or expiration of the Lease or any extension thereof, the Premises, including all Improvements, all Alterations and Utility Installations, all Lessee Owned Alterations and Utility Installations, all Trade Fixtures, and all personal property of Lessee, shall be the property of Lessee.” (¶16 of Spongberg Declaration and §7.4 of Exhibit 7).

 

As noted above, “Premises” is defined to expressly refer to the building and, thus, the language of this specific provision appears to provide for the transfer of the building at the expiration of the Lease; however, despite this fact, the remainder of the Lease provisions render the contract ambiguous.

 

“Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract.” (Civil Code §1652). “Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected.” (Civil Code §1653).

 

Similarly, “[p]articular clauses of a contract are subordinate to its general intent.” (Civil Code §1650).

 

Here, as noted by Plaintiff, the remainder of the Lease terms indicate the parties were entering into a rental rather than a purchase Agreement.

 

The Lease provides for rental payments within §1.5.  (See ¶14 of Spongberg Declaration and Exhibit 6).  Similarly, §4.1 states that “[a]ll monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent.” (Id.).

 

Moreover, §26 of the Lease states: “No Right to Holdover.  Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration [of] Lease.  In the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately on termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by the Lessee.” (Id.).

 

Similarly, the original Lease contains two options to extend by 60-months and for rental increases, in the event the options are exercised.  (§51 of Option to Extend, included in Exhibit 6).   Thereafter, within the Addendum, the parties amended ¶51 to provide for four options to extend by 60-months and accompanying rental increases.  (See §53 of Addendum, attached as Defendant’s Exhibit 7).

 

The provision which prevents holdover (§26 of the Lease) is directly contrary to the provision providing for transfer of the building (§7.4 of the Addendum).  Likewise, §7.4 which provides for transfer of the building is contrary to the Amended §53, which provides options for extension and increased payments.  

 

Here, the Lease Agreement includes contrary language which makes the intention of the parties unclear.   Consequently, the Court may consider extrinsic evidence as to intent. (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448). 

 

Contrary evidence of intent exists which requires denial of the Motion for Summary Judgment.   Per the Declaration of Mr. Spongerg, the Amended §7.4 reflects the intentions of the parties, that Defendant was purchasing the building. (¶14 and ¶16 of Amended Spongberg Declaration); however, in contrast Mr. Lundin provides 1099 forms for 2014, 2015 and 2018, which he declares he received from Defendant in connection with rent payments. (¶18 of Lundin Declaration).   These documents identify payments to Mr. Lundin as “rents.” (¶18 of Lundin Declaration and Exhibit 16 thereto).

 

Ultimately, as the Court is “required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion” and as “doubts as to whether there are any triable issues must be resolved in favor of the opposing party,” the Motion for Summary Judgment is DENIED. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522).

 

The Agreements executed between the parties are ambiguous and conflicting evidence exists, as to the parties’ intent.

 

Additionally, the Motion as brought based on standing is DENIED:  Defendant asserts the Estate of Diane Kolodziejski is a necessary party to this action, as Ms. Kolodziejski was a 25% owner of Plaintiff; however, the “Agreement and Release” cited by Defendant demonstrates that “Northridge Foods, Inc. shall concurrently with the execution of this Agreement, or as soon thereafter as practical, execute an assignment of its entire interest in the Northridge Lease to Lundin or their assigns.”  (¶ 4 of Cooper Declaration and Exhibit 9). 

 

While Defendant asserts the above is insufficient to convey any interests held by Diane Kolodziejski, the Agreement was executed by Leonard H. Lundin, in his individual capacity and as the Executor of the Estate of Diane Kolodziejski.  (See Defendant’s Exhibit 9).

 

Thereafter, Defendant seeks judgment on the basis “Mr. Lundin has never provided proof of the assignment and right to collect the alleged rent.” (See SSUF No. 39).  In support of this position, Defendant cites Deposition testimony from Mr. Lundin; however, the testimony relied on is ambiguous.  (See ¶5 of Cooper Declaration and Exhibit 10 thereto).  Throughout the relevant testimony Mr. Lundin insists the assignment was completed. (Id.). 

 

While Defendant asserts that a separate assignment has not been provided, this fails to meet Defendant’s initial burden: “Pointing out the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden of production.”  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891). “The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id., citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, fn. 23).

 

While factually devoid discovery responses may shift the burden on a Motion for Summary Judgment, Defendant has not provided any responses to Requests for Production, which indicate Plaintiff does not have possession of such a document.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581).

 

 

Future Hearings:

MSC: 3/13/20

Jury Trial: 8/3/20

 

5

City of Fullerton vs. Friends for Fullerton's Future

 

30-2019-01107063

1. Motion for SLAPP filed by Defendants Friends For Fullerton's Future, David Curlee and Joshua Ferguson

2. Order to Show Cause re: Preliminary Injunction

3. Order to Show Cause re: Contempt

 

The court is here presented with two diametrically opposing requests.  The first is a motion by defendants Friends for Fullerton’s Future (“FFF”), Joshua Ferguson, and David Curlee (collectively, “defendants”) for an order from the court striking the Complaint filed against them by plaintiff City of Fullerton (“plaintiff” or the “City”) pursuant to Code of Civil Procedure §425.16, the “anti-SLAPP” statute.

 

The second is a request by the City for an injunction prohibiting defendants from:

 (1) deleting, altering, or destroying documents from 20 Dropbox folders,

 (2) publishing or disseminating those documents, and

 (3) downloading data or further accessing City networks without permission. 

 

These motions - especially the second - have been through several months of briefing, and the court has had to sift through a large amount of evidence and argument. 

 

Before proceeding to analyze each motion, the court must address evidentiary issues.  In opposition to the anti-SLAPP motion, plaintiff seeks judicial notice of sixteen documents filed in support of its request for TRO and preliminary injunction.  Plaintiff also seeks judicial notice of documents it filed in opposition to defendants’ anti-SLAPP motion.  Thus, it appears that plaintiff desires to have all evidence it submitted in support of its position on both motions considered as to both. 

 

At the time of the previous hearing on 02/06/20 as to the anti-SLAPP motion, the court indicated that it would be willing to take judicial notice of the existence of documents filed pertaining to other motions, but would not necessarily take judicial notice of the truth of the facts stated therein.  See Bach v. McNelis, 207 Cal.App.3d 852, 864-865 (1989). 

 

The parties indicated after meeting and conferring that all referenced declarations may be considered in connection with the anti-SLAPP.  Given this, the court will proceed to address all evidentiary objections pertaining to declarations filed in support of, or in opposition to, either motion, and will draw from evidence filed as to either motion in rendering its rulings below.

 

Defendants’ Evidentiary Objections

Defendants filed evidentiary objections to the City’s evidence for both the OSC re: preliminary injunction and the anti-SLAPP motion.  But some of the objections filed with respect to the OSC re: preliminary injunction inappropriately group specific pieces of evidence together under one objection.  This is inappropriate because the grounds for objection must be examined with respect to each piece of evidence individually.  Cal. Rule of Court 3.1354(b). 

 

Because defendants have improperly grouped evidence together, the court will overrule all such objections – namely, Objections 1 through 3 to the Klein Declaration, Objections 4 through 6 to the Supplemental Klein Declaration, Objection 8 to the Lee Declaration, Objection 20 to the Tennyson Declaration, Objection 37 to the Lindsay Declaration, Objections 43, 44, 52, 55, 56, and 63 to the Streebe Declaration, and Objections 68 and 69 to the Supplemental Streebe Declaration.  The rulings on the remaining objections are as follows:

 

To Lee Declaration

7.    Overruled.

9.    Overruled.

10. Overruled.

 

 

To Marni Rice Declaration

11. Overruled.

12. Overruled.

13. Sustained as to the first sentence in paragraph 9 as lacking in foundation, overruled as to the remainder of paragraph 9.

14. Sustained as to the first sentence in paragraph 10 as lacking in foundation, overruled as to the remainder of paragraph 10.

 

To Michael Rice Declaration

15. Overruled.

16. Overruled.

17. Sustained as to the first sentence in paragraph 9 as lacking in foundation, overruled as to the remainder of paragraph 9.

18. Sustained as to the first sentence in paragraph 10 as lacking in foundation, overruled as to the remainder of paragraph 10.

 

To Tennyson Declaration

19. Overruled.

21. Overruled.

22. Sustained – lacking in foundation and personal knowledge; speculative.

 

To Tsai Declaration

23. Overruled.

24. Sustained – lack of foundation.

25. Overruled.

26. Overruled.

27. Overruled.

28. Overruled.

29. Overruled.

30. Overruled.

31. Sustained – hearsay.

32. Overruled.

33. Overruled.

 

 

To Lindsay Declaration

34. Overruled.

35. Overruled.

36. Overruled.

 

To Streebe Declaration in support of Preliminary Injunction

38. Overruled.

39. Overruled.

40. Sustained – conclusion outside the scope of the expertise of the witness.

41. Overruled.

42. Overruled.

45. Overruled.

46. Overruled.

47. Overruled.

48. Overruled.

49. Overruled.

50. Overruled.

51. Overruled.

53. Overruled.

54. Overruled.

57. Material cited does not match paragraph citation.

58. Overruled.

59. Overruled.

60. Overruled.

61. Overruled.

62. Overruled.

 

To Supplemental Streebe Declaration in Support of Preliminary Injunction:

64. Sustained – improper legal conclusion.

65. Overruled.

66. Overruled.

67. Overruled.

 

To Further Supplemental Streebe Declaration in Support of Opposition to Anti-SLAPP

70. Overruled.

71. Overruled.

72. Overruled.

73. Overruled.

74. Sustained – legal conclusion, improper subject of expert testimony.

75. Overruled.

76. Overruled.

77. Overruled.

78. Overruled.

79. Overruled.

80. Overruled.

81. Overruled.

82. Overruled.

 

To Gilbert Declaration

83. Overruled.

84. Overruled.

85. Sustained as to the first sentence in paragraph 6 – argumentative.  Overruled as to the remainder of paragraph 6.

 

To Beatty Declaration

86. Overruled.

87. Overruled.

88. Overruled.

 

To Arredondo Declaration

89. Sustained – lack of personal knowledge/foundation.

90. Overruled.

91. Overruled.

92. Sustained – lack of personal knowledge/foundation

93. Sustained – lack of personal knowledge/foundation.

94. Sustained – lack of personal knowledge/foundation.

95. Sustained – lack of personal knowledge/foundation.

 

To Second Supplemental Streebe Declaration Filed with Reply in Support of Preliminary Injunction

96. Overruled.

97. Overruled.

98. Overruled.

99. Overruled.

To Buchanan Declaration

100.              Overruled.

101.              Overruled.

102.              Overruled.

103.              Overruled.

104.              Overruled.

105.              Overruled.

106.              Overruled.

 

Plaintiff’s Evidentiary Objections

To Bambenek Declaration:

1.    Overruled.

2.    Overruled.

3.    Overruled.

4.    Overruled.

5.    Overruled.

6.    Overruled.

7.    Overruled.

8.    Overruled.

9.    Overruled.

10. Overruled.

11. Overruled.

12. Overruled.

13. Overruled.

14. Sustained – outside the scope of the witness’ stated expertise.

15. Overruled.

16. Overruled.

17. Overruled.

18. Overruled.

19. Sustained – argumentative.

20. Overruled.

21. Overruled.

22. Overruled.

 

To Ferguson Declaration:

1.    Overruled.

 

To Curlee Declaration:

1.    Overruled.

2.    Overruled.

3.    Overruled.

4.    Overruled.

5.    Overruled.

6.    Overruled.

7.    Sustained – hearsay.

8.    Overruled.

9.    Overruled.

10. Overruled.

11. Overruled.

12. Overruled.

13. Overruled.

14. Overruled.

 

To Supplemental Bambenek Declaration in Support of Anti-SLAPP

15. Overruled.

16. Overruled.

17. Overruled.

18. Sustained – lacking in foundation, conclusory.

19. Overruled.

20. Overruled.

21. Overruled.

22. Overruled.

23. Overruled.

24. Overruled.

 

Motion No. 1 (Anti-SLAPP):

 

Procedural Issues:

The motion is timely under Section 425.16, subdivision (f).  As the court observed in its previous tentative ruling, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d).  Additionally, the court observed that the font used by defendants in the moving and reply brief likely violate font requirements of California Rules of Court 2.104 and 2.105.  As always, the court urges all parties to review and adhere to the formatting requirements provided under the Rules of Court, and it does appear that, since the previous hearing, the parties have endeavored to adhere to those requirements.

 

Because defendants’ notice of motion does not quote in full the portions sought to be stricken in the Complaint, as instructed in California Rule of Court 3.1322, subdivision (a), the court presumes that the entirety of the pleading is the target of the motion, and the court will not strike discrete portions or allegations within the pleading, as is permissible pursuant to Baral v. Schnitt, 1 Cal.5th 376, 396 (2016).

 

Merits:

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech…in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  Code Civ. Proc. §425.16(b)(1).  “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [citation omitted] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.”  Baral, supra, 1 Cal.5th at 384.

 

Prong One: Protected Activity

In the Prong One analysis, the court is called upon to decide “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)” [citation omitted]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”  Navellier v. Sletten, 29 Cal.4th 82, 88 (2002).

 

The Complaint here alleges six causes of action: (1) violation of Penal Code §502 et seq., (2) violation of 18 U.S.C. §1030 et seq. (“CFAA”), (3) violation of Government Code §6204 et seq., (4) conversion, (5) trespass to chattels, and (6) conspiracy.

 

Defendants contend that these causes of action are all based on the protected activity of making public records requests, newsgathering, reporting, refusing to disclose confidential sources, and litigating in the courts.

 

The moving party has “the burden to show ‘the challenged cause of action arises from protected activity,” and that burden is met “by demonstrating” that the challenged conduct fits within the anti-SLAPP statute.  See Malin v. Singer, 217 Cal.App.4th 1283, 1303 (2013).  The court notes that, here, defendants have presented no evidence whatsoever to show what their conduct was, and why it was protected.  They rely completely on the allegations in the Complaint.  Nevertheless, the court agrees that the Complaint alleges conduct that is protected.

 

Pursuant to Code of Civil Procedure §425.16(e)(4), “any…conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is considered protected.  News reporting and newsgathering constitute such protected conduct, even where the plaintiff contends that the conduct used to gather information was unlawful or illegal.  See Lieberman v. KCOP Television, 110 Cal.App.4th 156, 165 (2003).

 

Here, plaintiff alleges that the defendants accessed, reviewed, and downloaded the City’s records and published some of the documents, as well as information learned from them.  Whether the material was allegedly obtained through unauthorized use of the Dropbox account is relevant to the second prong of the analysis, not the first.

 

The City argues that the allegations in the Complaint bring it within the exemption to the anti-SLAPP statute created by the California Supreme Court in Flatley v. Mauro, 39 Cal.4th 299, 316 (2006) for conduct that is illegal as a matter of law – in that case, extortion.

 

But, as defendants point out, the Flatley exception only applies when “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.”  Id. at 320.  The defendants here do not concede that their activity was illegal, and the evidence does not permit a conclusion by the court that the activity alleged was illegal as a matter of law.

 

As a result, the burden shifts to plaintiff to show a probability of prevailing.

 

Prong Two: Probability of Prevailing

To meet its Prong Two burden, the plaintiff must make a prima facie showing of facts that would, if proved, support a judgment in its favor.  Kashian v. Harriman, 98 Cal.App.4th 892, 906 (2002).  “When assessing the plaintiff's showing, the court must also consider evidence that the defendant presents. (§ 425.16, subd. (b)(2).)

 

The court does not, however, weigh that evidence against the plaintiff's, in terms of either credibility or persuasiveness. Rather, the defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.”  1-800 Contacts v. Steinberg, 107 Cal.App.4th 568, 585 (2003).

 

Here, given the fact that defendants’ motion seeks to strike the entirety of the Complaint, rather than discrete allegations or causes of action, plaintiff need only make an adequate showing as to one cause of action in order to defeat the motion. 

 

The First Cause of Action, brought under Penal Code §502, supplies the City with an opportunity to do just that.  Pursuant to subdivision (c) of that statute, it is a criminal offense for a person to “[k]nowingly access[] and without permission take[], cop[y], or make[] use of any data from a computer, computer system, or computer network, or take[] or cop[y] any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network” or simply to “[k]nowingly and without permission access[] or cause[] to be accessed any computer, computer system, or computer network.”   Pen. Code §502(c)(2) & (7). 

 

The Second Cause of Action is brought under the CFAA, 18 U.S.C. §1030.  Pursuant to subdivision (a)(2)(C) of that statute, it is a criminal offense to “intentionally access[] a computer without authorization” or to “exceed[] authorized access” and obtain “information from any protected computer.” 

 

Defendants focus much of their argumentative fire on the Second Cause of Action.  But Penal Code section 502 “is ‘different’ than the CFAA. …“[T]he California statute does not require unauthorized access. It merely requires knowing access.”  Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1069 (9th Cir. 2016).  “‘Access’ means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.”  Pen. Code §502(b)(1).  “‘Computer network’ means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.”  Id. at subd.(b)(2).  “…[N]otwithstanding the reference in the title to ‘unauthorized access,’ Penal Code section 502 prohibits knowing access, followed by unauthorized (i.e., ‘without permission’) taking, copying, or use of data.”  Facebook, Inc. v. ConnectU, LLC, 489 F.Supp.2d 1087, 1091 (N.D. Cal. 2007).  For this reason, defendants’ arguments regarding password-protection of data, or the lack of evidence of “hacking,” are unavailing.

 

Given that Dropbox is a service that permits file sharing through links, it would seem to meet the definition of a computer network under the statute. (Streebe Decl., ¶20.)  Thus, in the court’s estimation, in order to make a prima facie showing of a violation of Section 502 under these facts, the City must show either that defendants knowingly accessed the City’s Dropbox account and took data without permission, or that defendants’ access itself was knowing and without permission. 

 

In determining whether an adequate showing has been made, however, the court must look at the evidence presented specific to each defendant.  Here, both sides appear to have largely grouped all defendants together for purposes of their discussion.  Plaintiff has not organized its presentation of evidence so as to draw clear lines between each defendant and the conduct complained of.  The court is left to piece the evidence together on its own, which it does below.

 

The Assistant City Clerk, Mea Klein, avers that defendants Ferguson and Curlee are associated with FFF’s blog, and that she has interacted with them in that capacity when handling their Public Records Act (“PRA”) requests.  (Klein Decl., ¶13.)  Neither Mr. Ferguson nor Mr. Curlee deny that they work for and contribute to the FFF blog.  In addition to alleging that defendants Ferguson and Curlee undertook their activities in furtherance of FFF’s blog, plaintiff alleges that documents allegedly taken from the City’s Dropbox account without permission were later posted on the blog.  The City fails to present the court with any of the offending blog posts themselves, even in redacted form.

 

 However, the City’s computer forensic expert, Matthew Strebe, avers that his review of the blog indicated that documents from a zip file in the City’s Dropbox account labeled “pr1919-Josh Ferguson.zip” were published on the blog in 2019.  (Strebe Decl., ¶¶75-80.)  Ms. Klein avers that the “pr1919” folder was created by the City’s IT department for the purpose of collecting documents potentially responsive to Ferguson’s PRA request made on 01/02/19.  (Klein Decl., ¶17.)  Her declaration suggests that, while she and other City staff have previously given Ferguson and Curlee links to Dropbox folders in response to PRA requests, the “pr1919” file was never among the folders shared with them.  (Id., ¶¶14-15.)  This is prima facie evidence that the defendants did not have permission from the City to be in possession of the “pr1919” zip file.

 

The next question is whether the City has evidence that FFF, or its representatives Ferguson or Curlee, obtained these documents through an illegal act – accessing the City’s Dropbox account and taking them without permission.  The court concludes that the City has such evidence.

 

Based on his review of the Dropbox activity logs, Mr. Strebe avers that the “pr1919” zip file was first uploaded to the Dropbox account by the City IT department on 05/07/19.  On 05/10/19, its contents were accessed and downloaded by an unidentified user.  (Strebe Decl., ¶70, Ex. A, pp. 73-74.)  Mr. Strebe avers that Dropbox utilizes unique links such that folders can only be shared by sharing the link itself.  (Id., ¶58.)  Because Ferguson and Curlee had previously been given access to City Dropbox folders, Mr. Strebe was able to ascertain from the Dropbox logs that they employed identity-masking VPN and TOR services to access the folders for which they had permission.  (Id., ¶60.)  This was unlike other persons who downloaded folders from the Dropbox account.  (Id., ¶66.)  Given the fact that the folder taken was of interest to defendants, and their past pattern of using VPN and TOR services to access the City’s Dropbox account and download files, Mr. Strebe concludes that the unidentified user who downloaded the “pr1919” file was “almost certainly” Ferguson.  (Id., ¶66, 70.)

 

Ferguson also appears to have accessed the Dropbox account without permission and downloaded other folders besides the “pr1919” file.  Ms. Klein avers that the City only ever gave Ferguson access to two Dropbox links, the first of which was sent in December 2018.  (Klein Decl., ¶14c.)  Yet, the City’s Dropbox log shows that Ferguson was accessing and downloading folders from the account, without permission, as early as 12/28/17.  (See Strebe Decl., Ex. D.)

 

As for Curlee, Mr. Strebe attributes the unlawful downloading of numerous folders and files to him by way of TOR and VPN, because Curlee used such methods to download other files to which he was lawfully given access by the City.  (Id., ¶¶66-67.)  The City avers that he did not have permission to download these documents.  (Klein Decl., ¶¶14-15.)

 

Defendants make several arguments in response to this evidence.  First, they argue that Mr. Strebe’s Dropbox logs are suspect and lack authentication.  Second, they argue that his evidence is inadequate to attribute the accessing/downloading of files by VPN/TOR users to them.  Third, they argue that the folders were publicly accessible.

 

The first argument is made by defendants’ competing expert, John Bambenek.  Mr. Bambenek points out that Strebe’s Dropbox logs do not completely match the format of a log he was able to generate from a Dropbox account, and that parts of the IP addresses were actually obscured, raising questions as to whether the information in Mr. Strebe’s declaration was accurate.  (Bambenek Decl., ¶¶38-42.)  Mr. Strebe responds that the logs he provided were streamlined versions of logs that he had received from the City, filtered in order to capture only “relevant” information.  Strebe further avers that, had he attached the full log files, the documents would have numbered in the thousands of pages, which could hardly have been useful to the court in its review.  (Sec. Suppl. Strebe Decl., ¶¶5-8.)  Ultimately, the court has no reason to suspect that the information provided in the Strebe logs is inaccurate, or that any “enriching” or “filtering” by Strebe adulterated data.

 

Mr. Bambenek’s declaration is also the source of defendants’ second argument.  He avers that Mr. Strebe is essentially speculating that the access to the City’s Dropbox account via anonymizing PureVPN or TOR had to have been Ferguson or Curlee.  But, as the court has already stated, Mr. Strebe’s conclusion was based on the fact that defendants’ prior access of unique Dropbox links sent specifically to them occurred through PureVPN or TOR.  Thus, a linkage was drawn in terms of the methodology previously employed by these defendants to access data in the Dropbox account.  Mr. Bambenek may believe this is to be a “conclusion” rather than “evidence,” but legal definitions are not a subject as to which the court requires an expert opinion.  (Bambenek Decl., ¶48.)  Mr. Strebe’s observations are evidence that defendants were behind the downloading of data without permission – and that is all that the City is required to produce in order to defeat the present motion.

 

Finally, defendants appear to contend that the City’s use of a more generic link (http://cityoffullerton.com/outbox) indicates that the Dropbox account was publicly accessible.  But, according to Mr. Strebe, this was merely an alias for the unique Dropbox link to the disclosed folder or file.  (Further Suppl. Strebe Decl., ¶¶3-5, 7-8.)  The generic link was never published on the City’s website.  (Id., ¶¶7-8.)

 

Because the City has produced evidence to make a prima facie showing that defendants knowingly accessed and, without permission, took documents from the City’s Dropbox account, the court finds that Prong Two has been met. 

 

The special motion to strike is therefore DENIED.

 

 

Motion No. 2 (Preliminary Injunction):

While the second motion brought by the City entails a slightly different assessment than the first, the court’s analysis of Prong Two above is relevant.

 

In this motion, it is the City’s burden to show that a preliminary injunction should issue.  O’Connell v. Sup. Ct., 141 Cal.App.4th 1452, 1481 (2006).  That burden is carried through two interrelated prongs.  See Right Site Coalition v. Los Angeles Unified Sch. Dist., 160 Cal.App.4th 336, 338 (2008).

 

First, the City must show a “reasonably probable” likelihood of success on the merits.  See San Francisco Newspaper Printing Co., Inc. v. Sup. Ct., 170 Cal.App.3d 438, 442 (1985). 

 

Then the court should also consider whether the City would suffer greater injury from denial of the injunction than the defendants would suffer from its grant.  Shoemaker v. County of Los Angeles, 37 Cal.App.4th 618, 633 (1995).  “Regardless of the balance of interim harm, the preliminary injunction cannot be allowed to stand unless there is ‘some possibility’ [plaintiff] will prevail on the merits of its action.”  Costa Mesa City Employees’ Assn v. City of Costa Mesa, 209 Cal.App.4th 298, 309 (2012).  “The more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. ..Further, “if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his favor.”  Right Site Coalition, supra, 160 Cal.App.4th at 338-339.

 

As the court stated in its previous tentative ruling, there is at present an appeal pending regarding the 10/25/19 Order granting plaintiff’s ex parte application for a Temporary Restraining Order and Order to Show Cause why a Preliminary Injunction should not be issued, and the Court of Appeal has indicated that it is considering issuing a peremptory writ in the first instance with respect to paragraphs (1)(j) and (1)(k) of that order pursuant to Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171, 177-180 (1984), and has stayed that portion of the order. 

 

Given this, the court might have been inclined to strike paragraphs 1(j) and 1(k) from the most recent proposed injunction submitted by the City in any event.  However, since the Court of Appeal indicated in its 12/05/19 order that this court is free to rule on any and all issues related to this motion, the court will not consider itself precluded from reviewing the issue independently.

 

As the court has already concluded in connection with the anti-SLAPP motion, the City has shown that there is some possibility that it will prevail on the merits of its First Cause of Action.  The court’s task now is to balance the harms, and then weigh the propriety and scope of the injunction to issue, keeping in mind defendants’ valid concerns regarding the constitutionality of any such action.

 

The City’s most recent proposed injunction, submitted on 02/25/20, proposes to restrict defendants’ conduct with respect to the following Dropbox folders from the City’s account:

·         pr1919-Josh Ferguson.zip

·         ACUSA_PRR.zip

·         CE_PRR_KC.zip

·         Council_20180430.zip

·         PRR_AIR20180604.zip

·         HL_PRR.zip

·         Tiger_Signal_PRR

·         PRR_JF_20181002.zip

·         JR_PRR20181012.zip

·         JF_PRR_2.zip

·         PPR_Cox.zip

·         PRRS01082019.zip

·         PRRS01092019.zip

·         PRRS01092019_all.zip

·         PRRS01152019_JF.zip

·         PRRS02042019_VD_2.zip

·         PRRS02042019_VD.zip

·         PRR_19-134_data@thehourlystruggle.com.zip

·         PR19-171VD_1_2.zip

·         PR19-188VD.zip

 

Specifically, the City asks the court to order defendants not to delete, alter, destroy, or copy the data from these folders, or any communications about or summaries of their contents.  The City also wishes to enjoin defendants from further accessing and downloading information from the City’s networks or file sharing accounts without its permission, disrupting City networks, and/or conspiring with others to do those things.

 

Finally, the City desires an injunction prohibiting the defendants from publishing or distributing content obtained from these folders, or conspiring with others to do the same, excluding any content that may be publicly available or disclosed through Public Records Act requests.

 

There is no evidence at all that defendants attempted to “disrupt” any City computers or networks, so the injunction in that sense is unwarranted.

 

Regarding the taking, alteration, deletion, or destruction of data, Mr. Strebe indicates that there is forensic evidence that all of the designated folders or zip files were taken by defendants.  (Suppl. Strebe Decl., ¶¶8-26.)  Attribution to defendants of these takings is bolstered by the fact that many of them appear to have been files or folders gathered by the City for review in order to make Public Records Act disclosures to the defendants themselves.  (See Suppl. Strebe Decl., ¶¶8-26; Suppl. Klein Decl., ¶¶7-20, Suppl. Tsai Decl., ¶¶2-4.)

 

There is also evidence that irreparable harm has and will continue to occur absent the proposed injunction.  The Buchanan Declaration makes an adequate showing that the “pr1919” zip file contains privileged or confidential information.  The court is less clear on whether all of the remaining files contain sensitive or privileged information, but based on the evidence summarized above, defendants’ conduct harmed the City’s right to control access to its data.  And given the documented, repeated instances of defendants accessing and downloading information through anonymizing methods without permission, it seems that they will continue to attempt to do so absent an injunction. Power Ventures, supra, 252 F.Supp.3d at 782. 

 

Given the evidence before the court, the injunction is appropriate insofar as it requires defendants to retain all documents in their possession pertaining to the subject files and folders, and to refrain from further accessing the City’s documents without permission.  The relative harm to defendants from such an injunction is miniscule, given that it would only prohibit defendants from committing further improper acts.

 

The thornier question is whether the injunction should also prohibit publication or discussion on the blog of documents obtained through such improper acts.

 

Defendants contend that such an injunction would amount to an unconstitutional prior restraint on the press.  However, the injunction here is not a prior restraint, as it is a content-neutral restriction on defendants based not on their speech, but on their own prior unlawful conduct.  See DVD Copy Control Assn, Inc. v. Bunner, 31 Cal.4th 864, 886-887 (2003).  Defendants’ citations to authority regarding the protection of journalists for publication of inadvertently disclosed information or information obtained through improper means are inapposite, therefore, because these cases did not involve illegal newsgathering activities by the journalist.  As but one example, in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975), the United States Supreme Court held that a reporter could not be held liable for invading a rape victim’s privacy by disclosing her name when he obtained the name by reviewing court records open to public inspection in the courtroom.  Id. at 496.  He was not accused of obtaining her name through illegal or improper means.  That situation is very different from the one at bar – where there is credible evidence that defendants knowingly accessed and took documents that they had no permission to take.

 

The court must keep in mind that injunctions are not appropriate where the wrong complained of has already been completed, or where the feared harm has already occurred.   Vincent Petroleum Corp. v. Culver City, 43 Cal.App.2d. 511, 516 (1941); see also Flood v. E.L. Goldstein Co., 158 Cal.247, 250 (1910).  The universe of documents that have already been published, excerpted, or otherwise identified or discussed on the blog is unclear, however.  Thus, the court is unable to say that the damage from their publication is complete.  The court is also unable to ascertain whether the City’s Dropbox account is still active, or whether defendants are still able to access it.

 

Taking into account all of the above circumstances, the court GRANTS the City’s request for a preliminary injunction as it regards subdivisions 1(a), (b), (c), (d), (e), (f), (g), (j), and (k). 

 

The court DENIES the request for an injunction as to subdivisions 1(h) and (i).

 

 

Future Hearings:

No future hearings

 

6

Ferguson vs. City of Fullerton

 

30-2019-01103679

Case Management Conference ONLY