Opposition Objections

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

COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.4800 - \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO 21CV381 1 1O Santa Clara - Civil SCOTT C. HALL (State Bar No. 232492) SKYE LANGS (State Bar N0. 287908) EMLYN MANDEL (State Bar No. 3 10403) COBLENTZ PATCH DUFFY & BASS LLP One Montgomery Street, Suite 3000 San Francisco, California 94104-5500 Telephone: 415.391.4800 Facsimile: 415.989.1663 Email: ef-sch@cpdb.c0m ef-sdl@cpdb.com ef-erm@coblentzlaw.com Attorneys for Plaintiffs ANNE TING, JACK TING, and NICOLE TING-YAP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ANNE TING, an individual; JACK TING, an individual; and NICOLE TING-YAP, an individual, Plaintiffs, V. PANIDA CHINSUPAKUL, an individual; and DOES 1 through 10, Defendants. 18786.001 4827-6945-4575.4 1 S. Ve Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/14/2021 12:43 PM Reviewed By: S. Vera Case #21 CV381 1 1 0 Envelope: 7261 149 Case N0. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT Date: September 28, 2021 Time: 9:00 a.m. Dept: 7 Judge: Hon. Christopher G. Rudy Action Filed: March 24, 2021 Trial Date: None Set Case N0. 21CV381 l 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT I’a COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO TABLE OF CONTENTS Page INTRODUCTION .............................................................................................................................. 5 LEGAL STANDARD ........................................................................................................................ 5 ARGUMENT ..................................................................................................................................... 6 I. The Court Should Not Strike Trade Secret Allegations That Plaintiff Properly Brings In Her Own Name. ........................................................................... 6 II. The Court Should Not Strike Allegations Just Because They Refer To Third-Party Corporate Entities. ..................................................................................6 III. The Court Should Not Strike Allegations That Describe How And When Plaintiffs Learned Their Information Was Stolen. ..................................................... 8 IV. Plaintiffs Are The Real Parties In Interest For A11 Their Claims. .............................. 9 CONCLUSION .................................................................................................................................. 9 18786.001 4827-6945-4575.4 2 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.4800 - \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO TABLE OF AUTHORITIES Page(s) Cases BladeRoom Group Limited v. Facebook, Inc. (N.D. Cal. 2017) 219 F.Supp.3d 984 ...........................................................................................6 Clauson v. Superior. Court (1998) 67 Ca1.App.4th 1253 ......................................................................................................... 5 Cooley v. Superior Court (2006) 140 Cal.App.4th 1039 ....................................................................................................... 7 Courtesy Ambulance Service. ofSan Bernardino v. Superior Court (1992) 8 Cal.App.4th 1504 ........................................................................................................... 5 Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842 ......................................................................................................... 5 Hartford Financial Corp. v. Burns (1979) 96 Ca1.App.3d 591 ............................................................................................................ 7 Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980 ......................................................................................................... 9 Lee v. Hanley (2015) 61 Ca1.4th 1225 ................................................................................................................. 7 Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471 ......................................................................................................... 7 PHI], Inc. v. Superior Court (1995) 33 Ca1.App.4th 1680 ......................................................................................................... 5 Silvaco Data Systems v. Intel, Corp. (2010) 184 Cal.App.4th 210 ......................................................................................................... 6 Statutes & Rules Code CiV. Proc. § 367 ............................................................................................................................................. 9 § 437 ............................................................................................................................................. 5 Pen. Code § 502(c)(2) .................................................................................................................................... 7 § 502(c)(4) .................................................................................................................................... 7 § 502(c)(7) .................................................................................................................................... 7 18786.001 4827-6945-4575.4 3 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO Other Authorities Cal. Const., art. I, § 1 ......................................................................................................................... 7 18786.001 4827-6945-4575.4 4 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO INTRODUCTION Defendant Panida Chinsupakul’s Motion t0 Strike (the “M0tion”) portions of Plaintiffs’ Complaint is Without merit and should be denied. Defendant moves t0 strike portions of the Complaint that she characterizes as relating t0 information owned by corporate entities who are not named in the Complaint. This is unavailing because Plaintiffs have properly alleged claims that are personal t0 them and that relate t0 Defendant’s theft of information concerning those corporate entities. A motion to strike is not an appropriate method for eliminating factual allegations that Defendant may dispute; that is what discovery is for. In her Motion, Defendant repeats word-for-Word the argument made in her demurrer as t0 why Plaintiffs lack legal standing to assert claims related to the corporate entities. As explained in Plaintiffs’ Opposition t0 Demurrer, and reiterated herein, Defendant’s argument fails because Plaintiffs have standing t0 assert all causes 0f action alleged, and all parts of the causes of action - including those that relate to information 0f corporate entities. Defendant’s Motion should be denied. LEGAL STANDARD In ruling 0n a motion t0 strike, the allegations in the Complaint are considered in context and presumed t0 be true. (Courtesy Ambulance Service OfSan Bernardino v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 (on a motion t0 strike, the court must “read the complaint as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations.”); Clauson v. Superior Court (1998) 67 Ca1.App.4th 1253, 1255 (same).) The grounds for a motion t0 strike must appear on the face 0f the pleading under attack, or from a matter which the court may judicially notice. (Code CiV. Proc. § 437; see also Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 849 (trial court ruling on a motion made 0n the pleadings “must consider only the face of the complaint and matters subj ect t0 judicial notice, accept as true the properly pleaded factual allegations of the complaint, and liberally construe the complaint.”).) The use 0f a motion to strike should be “cautious and sparing” and should not be employed as a “line item veto” for defendants. (PHII, Inc. v. Superior Court (1995) 33 Ca1.App.4th 1680, 1683) 18786.001 4827-6945-4575.4 5 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO ARGUMENT I. The Court Should Not Strike Trade Secret Allegations That Plaintiff Properlv Brings In Her Own Name. Defendant seeks to strike allegations related t0 Plaintiff Ting-Yap’s trade secret misappropriation claims on the grounds that these claims actually concern property rights that belong t0 third parties, and not Plaintiff. (Memorandum 0f Points and Authorities in Support 0f Motion t0 Strike (“MPA”) at 2; Notice of Motion at 2 (seeking to strike 11 18 (in its entirety); 1] 75 (in its entirety); and 1] 76 (“and the entities Whose trade secrets she held”).)1 Yet Plaintiff Ting- Yap has adequately alleged that she - and not any third party - is the owner and/or licensee of the trade secret information at issue in this case. (Compl. 11 18 (“Plaintiff Nicole Ting-Yap was and is the owner and/or licensee of trade secret information stored on Julian Ting’s semen”); id. 1H] 75, 76.) While Defendant may dispute this fact, and explore it in discovery, Plaintiff s allegations suffice to establish standing regarding the trade secret information and survive demurrer, and should not be stricken from the Complaint. (See Silvaco Data Systems v. Intel, Corp. (2010) 184 Ca1.App.4th 210, 220 (“The sine qua non 0f a trade secret . . . is the plaintiff” s possession of information 0f a type that can, at the possessor’s option, be made known to others, 0r withheld from them[.]”); see also BladeRoom Group v. Facebook, Inc. (N.D. Cal. 2017) 219 F.Supp.3d 984, 990 (finding that licensees have standing t0 sue under the CUTSA).) II. The Court Should Not Strike Allegations Just Because TheV Refer T0 Third-Partv Corporate Entities. Defendant also moves t0 strike allegations that describe some 0f the data that was stolen, Plaintiffs’ ownership and immediate right t0 possess that information, the explanation for Why it was stored 0n Julian Ting’s server and devices, and Plaintiffs’ belief that their information would remain private and secure. (Notice of Motion at 2 (seeking t0 strikeW 14, 17, 23, 24, 26(b), 30, 3 1).) Specifically, these allegations explain that Plaintiff Ting-Yap used her password-protected partition 0f Julian Ting’s server to store confidential business records for fifteen different entities 1 A11 paragraph references herein are t0 the Complaint in this action. 18786.001 4827-6945-4575.4 6 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO for Which she is 0r was the custodian 0f record, and describes the details of the information that Defendant stole, including emails and text messages addressed t0 Plaintiffs, financial records, privileged communications regarding commercial transactions, information concerning real property, check deposit receipts, tax vouchers, corporate governance documents, account information, bank statements, and title documents. (Id.) Defendant’s purported basis for striking these allegations is that they concern claims that cannot be brought by Plaintiffs. This is false. The allegations describe documents and information that belong to Plaintiff Ting-Yap and that she had an immediate right t0 possess, and that Defendant wrongfully stole from computer systems. (Compl. W 24, 3 1; Lee v. Hanley (2015) 61 Ca1.4th 1225, 1240; Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 598; Pen. Code, § 502(c)(2), (c)(4), (c)(7).) While some 0f the stolen documents may relate t0 third-party corporate entities, the claims at issue are personal t0 Plaintiffs, and involve their right to keep, and maintain the privacy, 0f this information. Moreover, the fact that Nicole Ting-Yap is the custodian of records for numerous entities whose data was taken demonstrates that she had lawful possession 0f the information, giving rise t0 her claim for conversion? Additionally, the documents relating to third parties actually reveal private information about Plaintififs’ own finances, and Plaintiffs have independent standing 0n that basis to bring their claims. (See, e.g., Cal. Const, art. I, § 1; Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Ca1.App.4th 471, 503 (the right t0 privacy under the state constitution extends t0 one’s confidential financial affairs, and embraces confidential financial information in whatever form it takes, whether that form be tax returns, checks, statements, 0r other account information).) For example, Plaintiff Ting-Yap has an ownership interest in Setima Sdn. Bhd., JCT Holdings, and Chelsea Capital Limited, all of Which are closely-held private entities. (Compl. W 23, 26.) Defendant stole information concerning these entities, including check deposit 2 Defendant’s reliance 0n the case 0f Cooley v. Superior Court (2006) 140 Ca1.App.4th 1039, 1044, for the proposition that a custodian 0f records is qualified t0 testify t0 the authenticity and trustworthiness of the records, is inapposite. (MPA at 2-3.) A custodian of records can do much more than that. In this case, Nicole Ting-Yap, in her role as custodian 0f records, has taken personal responsibility for storing and securing company records. (See Comp]. 11 17.) 18786.001 4827-6945-4575.4 7 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO receipts, tax vouchers, bank statements, account information, and information about rental payments. (Compl. W 23, 30.) This information reveals the assets and value 0f these entities, Which in turn reveals information about Plaintiffs’ private and confidential personal finances and net worth. As alleged in the Complaint, Plaintiff Ting-Yap owned and had the immediate right to possess this information, and expected that it would be kept private and not accessed without her consent. (Compl. W 24, 30.) Plaintiff Ting-Yap undisputedly has standing t0 pursue claims based on theft 0f information that discloses private details regarding her personal finances. The allegations should not be stricken from the Complaint. III. The Court Should Not Strike Allegations That Describe How And When Plaintiffs Learned Their Information Was Stolen. Defendant also moves to strike paragraph 14, lines 15-21 of the Complaint, which describes how and When Plaintiffs learned their information was stolen. Specifically, it describes how Defendant began asking questions about companies, real property, and assets owned by Plaintiffs, which Defendant would have had n0 way of knowing about unless she had illegally accessed the information stored 0n Julian Ting’s server and personal computing devices. (Compl. 1] 14.) There is no basis for any 0f these allegations t0 be stricken, as these lines allege how and when Plaintiffs learned about the theft 0f their information, and form the basis for the claims that follow. Even if one were to accept Defendant’s non-meritorious argument that all information referencing third-party corporate entities should be stricken, Defendant’s proposed change to paragraph 14 is overbroad, as it would strike allegations about real property and assets owned by PlaintiffNicole Ting-Yap. At most, the stricken portion could be limited to the two words emphasized below: “Additionally, 0n 0r about March 8, 2021, Julian Ting informed Plaintiffs that Defendant was asking questions about eempanies, real property, and assets for Which he had n0 ownership interest in whatsoever, but rather were owned and/or managed by Plaintiff Nicole Ting-Yap, her husband, and/or her in-laws. Defendant would have had n0 knowledge of these eempanies, real property, and assets unless she had illegally Viewed or accessed the private information contained on Julian Ting’s MacBook Pro, iPad, and iPhone, without his permission.” 18786.001 4827-6945-4575.4 8 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO (Compl. 11 14 (emphasis added).) Again, however, there is n0 basis for striking any 0f those allegations, as they all relate to claims that Plaintiffs have the right t0 bring in their own names. IV. Plaintiffs Are The Real Parties In Interest For All Their Claims. Defendant incorrectly argues that Plaintiffs are not the real parties in interest, and that their allegations should be stricken for that reason. But Plaintiffs’ allegations firmly establish that they are the real parties in interest for purposes 0f pursuing the claims sued upon. Code 0f Civil Procedure Section 367, Which provides that except as otherwise provided by statute, every action “must be prosecuted in the name 0f the real party in interest,” simply requires that the action be maintained in the name of the person Who has the right to sue under the substantive law. (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 991.) If the plaintiff has a cause 0f action in his own right, and he pursues it in his own name, the statute poses no obstacle t0 maintenance 0f the action. (1d,) It is only When a plaintiff seeks t0 assert the rights 0f others instead ofhis own that the question may properly arise Whether his action is barred by a lack of “standing.” (Id.) This is not such a case. Plaintiffs allege that they were the owners, lawful possessors, and/or licensees of the private information that Defendant stole - including their private financial, tax, and personal information, as well as relating to the corporate entities in which they hold shares and have interests. (Compl. 1N 2, 10, 13, 16, 17, 18, 20, 23, 26, 28, 30.) They have brought claims personal t0 them, regarding information that was in their rightful possession and was stolen from them. They are real parties in interest, and have standing to pursue claims based 0n its theft. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendant’s Motion t0 Strike. Should the Court grant any portion of the Motion to Strike, Plaintiffs respectfillly request leave t0 file an amended Complaint. / / / / / / / / / / / / 18786.001 4827-6945-4575.4 9 Case N0_ 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5500 FAX 4|5.989.|663 4|5.39|.4800 - \OWQGNUIhUJNH NNNNNNNNNHHHHHHHHHH WQONUI£MNHG©WQONUI£MNHG DATED: September 14, 2021 COBLENTZ PATCH DUFFY & BASS LLP Attorneys for Plaintiffs ANNE TING, JACK TING, and NICOLE TING-YAP 18786.001 4827-6945-4575.4 10 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5500 FAX 4|5.989.|663 4|5.39|.4800 - \DWQONUIhDJNH NNNNNNNNNHHHHHHHHHH WQONUI£MNHG©WQQUI£MNHO PROOF OF SERVICE Anne Ting, Jack Ting, and Nicole Ting-Yap vs. Panida Chinsupakul STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time 0f service, I was over 18 years 0f age and not a party t0 this action. I am employed in the County of San Francisco, State of California. My business address is One Montgomery Street, Suite 3000, San Francisco, CA 94104-5500. On September 14, 2021, I served true copies of the following document(s) described as PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT on the interested parties in this action as follows: Attorney for Defendant Panida Chinsupakul: Michael G. Ackerman, Esq. The Law Offices of Michael G. Ackerman 2391 The Alameda, Suite 100 Santa Clara, California 95050 Telephone: 408.261.5800 Facsimile: 408.261.5900 E-Mail: mga@mgackermanlaw.com sls@m2ackermanlaw.com BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy 0f the document(s) t0 be sent from e-mail address dcampos@coblentzlaw.com to the persons at the e- mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed 0n September 14, 2021, at Pacifica, California. {(2/sz flM/Qfi" Diana Campos I 18786.001 4827-6945-4575.4 1 1 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT