Declaration In Support

Cal. Super. - 6th Dist.March 24, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/11/2021 2:50 PM Reviewed By: L Del Mundo Case #21CV381110 Envelope: 6634786 \OOOQQMAUJN_ NNNNanflnfln-nI-flHHHu-d Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES 0F MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Defendant, PANIDA CHINSUPAKUL SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ANNE TING, an individual; JACK TING, ) Case No.: 21CV381 l 10 an individual; and NICOLE TING-YAP, an ) individual; ) DECLARATION OF MICHAEL G. ) ACKERMAN IN SUPPORT OF Plaintiffs, ) DEMURRER TO THE FIRST THROUGH ) FIFTH CAUSES 0F ACTION 1N vs. ) PLAINTIFFS’ COMPLAINT AND g MOTION To STRIKE PANIDA CHINSUPAKUL, an individual; ) and DOES 1 through 10; ) Date: TBD ) Time: 9:00 am. ) Dept.: 7 Defendants. ) Judge: Hon. Christopher G. Rudy ) I, Michael G. Ackerman, declare that: I am the attorney for the Defendant, Panida Chinsupakul, in the above-entitled matter. Prior to filing the instant demurrer and Motion to Strike, I met and conferred with counsel for the Plaintiffs, both in writing and telephonically, to attempt to resolve my objections to the complaint. Attached hereto as Exhibit “A” is a true and correct copy ofmy letter ofMay 21, 2021, stating the bases ofmy objections. Attached hereto as Exhibit “B” is the email I received from Ms. Langs indicating that we could not reach an agreement regarding these objections. - 1 _ DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF DEMURRER T0 THE FIRST THROUGH FIFTH CAUSES 0F ACTION TO PLANTIFFS’ COMPLAINT AND MOTION TO STRIKE CASE No.: 21CV3811 10 b.) \OOOQONMA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed in the City of Santa Clara, State of California, on June/fl, 2021. By: IV/fl/KV /MICHAEL/G. ACKERMAN - 2 - DECLARATION 0F MICHAEL G. ACKERMAN IN SUPPORT OF DEMURRER TO THE FIRST THROUGH FIFTH CAUSES OF ACTION TO PLANTIFFS’ COMPLAINT AND MOTION TO STRIKE CASE NO.: 21CV381110 LAW OFFICES OF MICHAEL G. ACKERMAN ATTORNEY AT LAW 239] THE ALANEDA SUITE lOO SANTA CLARA, CALIFORNIA 95050 TELEPHONE: (408) 261-5800 FAX: (408) 26 1-5900 MICHAEL G. ACKERMAN May21, 2021 J_ent Zia email; Ms. Skye Langs, Esq. COBLENTZ PATCH DUFFY & BASS LLP One Montgomery St, Suite 3000 San Francisco, CA 94104-5500 Ian coblentzlaw.com RE: Ilfing v, Panida Chinsupaku! Our file no.: 10913-001 Dear Ms. Langs, This letter shall serve as my attempt to meet and confer regarding the deficiencies in your complaint made pursuant to C.C.P. Section 430.41. The acknowledgment ofreceipt was sigmd on May 7, 2021, making the date a responsive pleading is due June 7, 2021 . Irequest a thirty (30) day extension to respond on behalfof Panida Chinsupakul to the complaint to July 7, 2021 , to permit us to resolve these issues prior to my filing a demurrer. Please let me know as soon as possible if this is acceptable. To begin with, the complaint alleges that Julian Ting had a server located within the garage. As I previously indicated, the device was a Synology DiskStation RAID 5 storage device. It is neither a server nor a computer. The complaint misstates the nature ofthe device used to store the data. Your complaint refers to Penal Code Section 502 but fails to identify the particular section you claim was violated. You must allege the specific subdivision you claim was violated. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4‘“ 771 , 790) Should you amend the complaint to allege a violation of Section 502(c), I will once again demurrer to the complaint because said section refers to computers, computer systems or a computer network. In this instance, Defendant did not access, take, copy or make use of any data fiom any such devices. This was and is a standalone storage device. Due process requires that a law making an act criminal must be sufficiently clear that persons ofcommon intelligence may not differ as to its application. (United States v. Lanier (9917) 520 U.S. 259, 266) In this instance, the question of whether a storage device falls within the scope of Section 502 is open to dispute. For example, ifa person lefi a thumb drive in a computer, would a person who removed the thumb drive and then accessed it be guilty of taking data from a “computer system.” The answer must be no. The definition ofcomputer system found in section 502(b)(5) is a device or collection of devices that contain computer programs, electronic instructions, input data, and output data, that perform fimctions, including, but not limited to, logic, arithmetic, data storage, and retrieval, communication, and control. A standalone storage device does not fall within the definition of a computer system. The same analysis applies to a computer network. (Section 502(b)(2)) As a result, no claim can be made that Defendant violated any subdivision of P.C. Section 502. Moreover, your clients do not have standing to bring the claims on behalf of the corporate entities. The real party in interest is the corporation who owns the data or trade secrets. A corporation (or limited liability company) is a legal entity that is recognized as having an existence separate from that of its shareholders (or members). (Marco Construction Engineers v. Municipal Court (1 978) 21 Cal. 3d 724, 729) The shareholders are not owners of the corporate property. (Pacific Lumber Co. v Superior Court (1990) 226 C.A. 3d 371, 375; 276 Cal. Rptr. 425) In this instance, you allege that Nicole is a licensee of some of the “trade secret information,” but you do not identify what trade secret information she is a licensee of or who the licensor may be. The complaint is uncertain in this regard. In order to pursue any of the claims alleged, Nicole must be the owner or licensor of the information claimed to have been taken or misappmpriated. It is not possible to ascertain which Specific information she claims to have a license for. As a custodian of records, she has no ownership rights in the information. A custodian of records has a duty to maintain the business records of an entity sufficient to attest to their authenticity and trustworthiness. This does not bestow upon the custodian of records any ownership of the contents of the records. The claims pled must be brought on behalf of the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefited by the litigation. (Gantman v. United Pacific Ins. C0. (1991) 232 C.A. 3d 1560, 1566; 284 Cal. Rptr. 188) Your clients are not the real parties in interest and therefore do not have standing to sue. Lastly, a corporation does not have a constitutional right of privacy. (Roberts v. GulfOil Corporation (1983) 147 C.A. 3d 770, 793; 195 Cal. Rptr. 393) The Third Cause of Action does not state a valid cause of action with respect to any of the corporations or limited liability companies as to their data or information. Please advise me ifyou will amend the complaint to add the real parties in interest or drop the claims on behalf of the corporate entities. Michael Ackerman _ From: Langs, Skye Sent: Thursday, May 27, 2021 10:40 AM To: Michael Ackerman; sls@mgackermanlaw.com Cc: Hall, Scott; Mandel, Emlyn Subject: RE: [EXTERNAL] RE: Deposition of Nicole Ting Michael, We previously met and conferred on your demurrer points in our call on May 10. We have considered the points raised in your May 21 letter, which were largely the same points you raised in our call, and we believe that we are likely to succeed on the merits of our claims for the following reasons: 1. Julian's server is not merely a storage device, as described further in his declaration in support of our TRO. Nor is there any authority in support of your position that a ”storage device,” or a server like Julian’s, would not fall within the clear statutory language of Penal Code 502. 2. There is no support for your position that we must allege the specific subdivisions of Penal Code 502 at issue. Covenant Care stands only for the proposition that statutory violations must be pled with particularity, which we have done. 3. Plaintiffs have standing to bring their claims, as demonstrated by the pleadings, our briefing in the TRO, and the declarations filed in support. Pacific Lumber concerns corporate ownership of real property. Data is very different - multiple people, including in this case officers and custodians of record - have the right to possess company information, and all that is required for standing in the claims we’ve brought is that the individual be in lawful possession of the data that was stolen from them. Moreover, documents concerning plaintiffs’ ownership of companies reveals private information about the finances of plaintiffs - not the companies they are shareholders in - and they have standing on that basis as well. Finally, not all the data at issue is company information. Much of it is Plaintiffs’ personal information, which you have acknowledged you are unable to selectively delete from the stolen data. 4. Plaintiffs have alleged the trade secret claims with sufficient specificity to survive a demurrer. Plaintiffs do not need - and should not have to - reveal all their trade secret information in order to bring a claim for misappropriation. The trade secrets only need to be described with sufficient particularity to separate them from matters of general knowledge. We have done so. 5. Plaintiffs are the real parties in interest. They have brought claims personal to them, regarding information that was in their rightful possession and was stolen from them. 6. None of Plaintiffs’ claims concern the company’s right to privacy. The claims are about information held by plaintiffs, and the private information it reveals about their personal wealth and finances. Additionally, much of the stolen data was private and personal, and did not concern company information at all. Our position on these points was set forth in our prior call and ourTRO briefing, and we do not expect that we will convince you of our position (or that you will convince us of yours) at this point. But we can be available today or tomorrow for a call if you believe there is anything further to discuss. We do not agree to a 30-day extension for filing the demurrer. The Court should address these issues as soon as possible. Best, Skye Langs Coblentz Patch Duffy & Bass LLP One Montgomery Street, Suite 3000 San Francisco, CA 94104 \l 6"1 .hv, . ., ..M