Memorandum Points and AuthoritiesCal. Super. - 6th Dist.March 24, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/19/2021 4:47 PM Reviewed By: R. Nguyen Case #21CV381110 Envelope: 6480538 21CV381110 Santa Clara - Civil R. Nguyen \OOO‘JONLII#UJN.-n NNNNNNNNHwH-nH-dHfln-sw gNQMAWNflowOOQGmhMN-‘O Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES OF 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, an individual; and NICOLE TING-YAP, an individual; Case No.: 21CV381110 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER Plaintiffs, vs. Date: May 21, 2021 PANIDA CHINSUPAKUL, an individual; Time: 8:30 a.m. and DOES 1 through 10; Dept: TBD Judge: TBD Defendants. INTRODUCTION: Defendant Panida Chinsupakul was served through her attorney with the summons and complaint on May 7, 2021 (the date counsel signed an acknowledgment of service). Plaintiffs have made this application for what purports to be a temporary restraining order but grants Plaintiffs the full and final relief prayed for in the complaint without an evidentiary hearing and without Defendant having an opportunity to object to Plaintiffs’ standing to bring the claims pled in the complaint. To begin with, Plaintiffs have no standing to bring any of the claims relating to the corporate entities or the financial information, assets and/or trade Secrets owned by the entities. Plaintiffs are merely - 1 - MEMORANDUM 0F POINTS AND AUTHORITIES IN OPPOSITION To APPLICATION FOR TEMPORARY RESTRAINING ORDER CASE No.: 21CV381 1 10 \OOOQQUI-PDJN" NNNNNNNNNn-nn-n-oHo-‘v-Iv-tv-n-s-t WQQMAUJN-‘OCOOQQMhMNHO shareholders, members, directors or a custodian of records and have no ownership interest in the property or assets described and therefore have no legal standing to bring an action for misappropriation. Secondly, there is and was no “server” located in the garage as alleged in the ’9 C‘ complaint. The device was a Synology RAID 5 storage device which is not a “computer, computer networ ,” nor a “computer system.” It does not fall within the purview of Penal Code Section 502. The storage device was and is the community property of the defendant, as well as Julian Ting, and was located within the garage of their residence located in Los Altos, California. Although the storage device was allegedly accessed in October of 2020, Plaintiffs have not shown an imminent threat of irreparable harm or injury if the requested relief is not granted. At this point, Plaintiffs have no likelihood of prevailing on the merits as they have no legal standing to bring this action. Defendant has offered to destroy or delete Plaintiffs’ personal information stored on the device such as the videos of private counseling sessions, photographs, passport information, identity information for Nicole Ting-Yap’s children and attorney client information. A forensic copy was made of all of the data stored on the device. Information cannot be deleted or removed selectively from the forensic device which contains all of the information stored on the Synology device, including information relating to Defendant personally. As a result, a suggestion was made that the forensic copy be maintained intact but that there be an agreement that it not be accessed, copied or otherwise tampered with without the written consent of all the parties or order of the court. Possession of the forensic copy can be given to a neutral third party. The other copies of the personal data that are not contained on the forensic copy could then be destroyed or deleted. This offer was rejected. W A. Plaintiffs Have No Legal Standing to Bring Any of the Claims 0n Behalf of the Corporate Entities. A corporation is a legal person or entity recognized as having its existence separate from its shareholders. (Merco Construction Engineers v. Municipal Court (1978) 21 Cal. 3d 724, 729, 147 Cal. Rptr. 63 1) The shareholders are not the owners of the corporate property, and the corporation, _ 2 _ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER CASE NO.: 21CV381 l 10 OOONQMAUJNH NNNNNNNNNHHu-tt-Io-nn-ao-t-Av-nn-I OOQQLh-hUJNfi-‘OOOOQOKJI&UJNHO and a shareholder are distinct parties in contracts made by each other. (Baker Divide Mining Co. v. Maxfield (1948) 83 C.A. 2d 241, 248; 188 P. 2d 538) A corporation does not have the same Constitutional “right of privacy” as an individual. (Roberts v. GulfOil Corp. (1983) 147 C.A. 3d 770, 195 Cal. Rptr. 393) An unincorporated entity formed under the law of a jurisdiction other than California and denominated by that law as a limited liability company is a “foreign limited liability company.” (Corp. Code Section 17701 .02(k)) A limited liability company is an entity distinct from its members. (Corp. Code Section 17701 .04(a)) A foreign limited liability company that has a certificate of registration under Corporations Code Section 17708.02 must designate and continuously maintain an agent for service of process. (Corp. Code Section 17701 .13(b)) Debts, obligations, or other liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, or other liabilities of the limited liability company to which the debts, obligations, or other liabilities relate. (Corp. Code Section 17703.04(a)(1)) Plaintiffs have filed suit ostensibly for prOperty rights and property held by JCT Holdings, Setima and other corporate entities for which they are directors, members or the custodian of records. A person or entity who maintains the business records of an entity is the custodian of records. They are qualified to testify to the authenticity and trustworthiness of the records. (Cooley v. Superior Court (2006) 140 C. A. 4‘“ 1039, 1044, 45 Cal. Rptr. 3d 183) A custodian of records does not own the records they maintain. Those records and the information contained therein are owned by the entity for which they are kept. Plaintiffs must be the “real party in interest” with respect to the claims sued upon. Except as otherwise provided by statute, “every claim must be prosecuted in the name of the real party in interest. . .” (C.C.P. Section 367; see Dino v. Pelayo (2206) 145 C.A. 4‘“ 347, 353, 51 Cal. Rptr. 620, 624) The real party in interest is the person who has the right to sue under substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be - 3 _ MEMORANDUM 0F POINTS AND AUTHORITIES IN OPPOSITION T0 APPLICATION FOR TEMPORARY RESTRAINING ORDER CASE No.: 21CV381110 \OOOQO‘nUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interested or benefited by the litigation. (Gantman v. United Pacific Insurance C0. (1991) 232 C.A. 3d 1560, 1566, 284 Cal. Rptr. 188) Nicole Ting-Yap declares that she is the “owner and/or licensee” of the trade secret information for the entities. She cannot be the owner of the trade secrets if they are property of the entities. She has not attached a single license agreement to her declaration to identify the scope of the license and/or what rights are granted to her under the license. She simply asks this court to accept her statement as true. The best evidence of the terms of the license is the license itself, not her hearsay declaration. None of the Plaintiffs are the real party in interest with respect to the trade secrets or financial information owned by the corporate entities. As a result, the action must be dismissed unless the real parties in interest are joined as a party plaintiff. As indicated in the attached declaration of Panida Chinsupakul the device that was located in the garage of the family home in Los Altos was purchased during their marriage and is the community property of Julian Ting and Panida Chinsupakul. It contains personal information pertaining to Panida Chinsupakul. It is a Synology RAID 5 storage device as described in Exhibit “A” to the declaration of Panida Chinsupakul. Penal Code Section 502 relates to computer crimes. Plaintiffs do not allege in the complaint which specific sub-sections they rely upon. They must do so to state a legally valid cause of action. (Covenant Care, Inc. v Superior Court (2004) 32 Cal. 4‘“ 771, 790) Section 502 does not describe or include standalone storage devices such the Synology RAID 5 device anywhere in the statute. Section 502 relates to computers, computer systems, or computer networks, the definitions for which do not include stand-alone storage devices. In theory, the data that Plaintiffs are referring to could have been stored on other storage devices such as a thumb drive or disc. Would defendant’s copying of a thumb drive or disc fall within Section 502? Defendant contends the answer must be no. Due process requires that a criminal statute be sufficiently clear that persons or reasonable intelligence would have to guess at is meaning or differ as to its application. (United States v. Lanier (1997) 510 - 4 - MEMORANDUM 0F POINTS AND AUTHORITIES IN OPPOSITION T0 APPLICATION FOR TEMPORARY RESTRAINING ORDER CASE NO.: 21CV381 l 10 \OOOQOUIAUJNF- NNNNNNNNN-‘v-It-‘Ht-‘va-Iu-It-t OONQUIAUJNt-‘OKDOONQUIAUJN-‘O U.S. 259, 266; 137 L. Ed. 2d 432) Here there is nothing in Section 502 that would apprise anyone that storage devices, such as the Synology RAID 5 device, falls within its purview. Plaintiffs must show that a temporary restraining order or preliminary injunction must be issued to prevent irreparable harm likely to occur in the absence of the injunction. The mere possibility of harm is not sufficient. (Winter v. Natural Resources Defense Council (2208) 555 U. S. 7, 129 S. Ct. 365, 375, 172 L. Ed. 2d 249, 262) Here, Plaintiffs have not shown any harm that has occurred to them in the over seven (7) months since the data or information was allegedly accessed or copied. Nicole Ting-Yap states that she is “afraid that if she is not stopped, she will publicly disclose my private information, which would be extremely harmful to me, both personally and professionally.” (Decl. of Nicole Ting-Yap, page 7, lines 5-6) Nothing is stated or shown other than a “fear of harm,” with no showing of a likelihood of actual harm being imminent. Over the last seven months, Defendant has done nothing to cause any of the Plaintiffs harm. The alleged threat ofharm is nothing more than a possibility with no basis in reality to believe that it will occur. Plaintiffs have not made the necessary showing of the likelihood of harm or injury unless the injunctive relief is granted. As a result, the application must be denied. DATED: May Z é, 2021 LAW OFFICES OF MICHAEL G. ACKERMAN //Q/ /MICHAE G. ACKERMA‘N’ESQ. x /Attorney for Defendant, PANIDA CHINSUPAKUL - 5 _ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER CASE NO.: 21CV381110