Orange Tint, Inc. vs. Lim

Plaintiff to give notice. 105 Zhejiang Zheshang Asset Management Co., Ltd. vs. Xinwen, 23-01367893 Off-calendar. 106 Orange Tint, Inc. vs. Lim, 23-01367250 Demurrer to Second Amended Complaint Defendants Andrew Byung Hoon Lim and Optima Window Film demur to Plaintiff Orange Tint, Inc.’s Second Amended Complaint (“SAC”) and the causes of action alleged therein.

First Cause of Action for Trade Secret Misappropriation Under the California Uniform Trade Secrets Act (“CUTSA”), trade secret misappropriation means improper acquisition, or non-consensual disclosure or use of another’s trade secret. (Civ. Code, § 3426.1, subd. (b).) “ ‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d).)

“With respect to the general availability of customer information, courts are reluctant to protect customer lists to the extent they embody information which is ‘readily ascertainable’ through public sources, such as business directories. (American Paper & Packaging Products, Inc. v. Kirgan (1986) 183 Cal.App.3d 1318, 1326, 228 Cal.Rptr. 713.)” (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1521.) However, courts will prohibit former employees from using information where the employer has expended time and effort to identify customers with particular needs or characteristics. (Morlife, supra, 56 Cal.App.4th at p. 1521.) “As a general principle, the more difficult information is to obtain, and the more time and resources expended by an employer in gathering it, the more likely a court will find such information constitutes a trade secret. [Citation.]” (Id. at pp. 1521-1522.)

A customer list qualifies as a trade secret if it provides a “substantial business

advantage” by identifying proven buyers rather than cold leads, thus allowing competitors to target sales efforts more selectively and effectively. (Id. at pp. 1522.)

The SAC alleges Plaintiff cultivated customer goodwill and satisfaction through Plaintiff’s goods and delivery. (SAC ¶¶ 17-19, 21-25, 32-33.) Plaintiff owned trade secret information, including a customer list that was assembled over many years and built on Plaintiff’s information and goodwill with each customer. (Id. at ¶¶ 54, 58.) The information was kept secret, known only to Plaintiff and necessary personnel for Plaintiff. (Id.) The trade secret information had been granted to Defendant Lim to sell products for Plaintiff, but Defendant Lim used the information to steal Plaintiff’s customers after leaving Plaintiff’s employment. (Id. at 49.)

These allegations are insufficient to plead a protectable customer list. The SAC does not allege any details as to the what the customer lists contain, how they derive economic value from remaining secret, or that the lists included any details that were the result of Plaintiff’s labor or investment. The demurrer to the first cause of action is SUSTAINED with leave to amend.

Second Cause of Action for Breach of Contract “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

The SAC alleges that on or about February 14, 2023, Plaintiff orally agreed to loan Defendant Lim $10,000 to be repaid within six months. (SAC ¶ 69.) Plaintiff fully performed all obligations of the oral agreement. (Id. at ¶¶ 70-71, 75-76, Exh. B.) Defendant Lim breached the agreement by failing to repay the $10,000 loaned to him by Plaintiff. (Id. at ¶¶ 72-74, 77-78.)

The allegations are insufficient to allege a contract between Plaintiff and Defendant Lim. “The essential elements of a contract are: ‘1. Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A sufficient cause or consideration.’ (Civ. Code, §

1550.) ‘ “[T]he vital elements of a cause of action based on contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration.” ’ (Pacific Bay Recovery, supra, 12 Cal.App.5th at p. 215, 218 Cal.Rptr.3d 562.)” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1231.) The SAC fails to adequately plead mutual assent. Additionally, the SAC does not include any words of promise or other consideration by Defendant Lim. (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 284 [“ ‘The statutory presumption of consideration ... does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally be alleged. [Citations.]’ ”].) The demurrer to the second cause of action is SUSTAINED with leave to amend.

Uncertainty Demurrers for uncertainty are generally disfavored (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822) because “under [California’s] liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) The court will only sustain a demurrer for uncertainty if it is so poorly drafted that defendants cannot reasonably respond. (Khoury v. Maly’s of California Inc. (1993) 14 Cal. App. 4th 612, 616.) A demurrer for uncertainty must identify by line and page number, the language that creates the uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal. App. 3d 797, 809.)

The SAC is not “so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal. App. 4th at p. 616.) The demurrer on the basis of uncertainty is overruled.

Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 20 days of service of notice of ruling.

The Case Management Conference and the Status Conference re corporate representation of plaintiff are continued to January 28, 2027 at 1:30 p.m.

Defendants to give notice. 107 Keating vs. General Motors, LLC, 25-01469536 Defendant General Motors LLC (“GM” or “Defendant”) will and hereby does move for judgment on the pleadings as to all five causes of action asserted in the Complaint filed by Thomas Keating (“Plaintiff”). GM requests all five causes of action be dismissed without leave to amend, and that judgment on those causes of action be entered in favor of Defendant GM.

Initially, all papers opposing a motion “shall be filed with the court and a copy served on each party at least nine court days” before the hearing. (Code Civ. Proc. § 1005(b).)

The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”].) In addition, it is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v.

Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].)

Here, no opposition to the Motion for Judgment on the Pleadings has been filed; and therefore, the Court deems the motion unopposed and construes the failure to oppose the Motion as an abandonment of Plaintiff’s claims.

Therefore, the unopposed Motion for Judgment on the Pleadings is GRANTED in its entirety with 20 days leave to amend.