Response Reply

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

Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/16/2021 3:44 PM Reviewed By: A. Floresca Case #21CV381110 Envelope: 7282308 21CV381110 Santa Clara - Civil A. Floresca \oooxlaxmhwup- NNNNNNNNflI-In-Iflflu-An-ar-np-np- gqam-bwmwoxoooxloxmwaHO 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 0F SANTA CLARA ANNE TING, an individual; JACK TING, ) Case No.2 21CV381 1 10 an individual; and NICOLE TING-YAP, an ) individual; ) REPLY MEMORANDUM OF POINTS ) AND AUTHORITIES IN SUPPORT OF Plaintiffs, ) DEMURRER T0 COMPLAINT ) vs. ) ) Date: September 28, 2021 ) Time: 9:00 a.m. PANIDA CHINSUPAKUL, an individual; ) Dept: 7 and DOES 1 through 10; g Judge: Hon. Christopher G. Rudy ) Defendants. g INTRODUCTION: The fundamental problem with Plaintiffs’ allegations is that they are inconsistent or contradictory. On the one hand, PlaintiffNicole Ting-Yap alleges that she is the owner or licensee of some of the information referred to in the complaint. Often in the same sentence she then alleges that she is the custodian of récords of the information alleged to have been taken. In reading the charging allegations, it appears that most of the information relates to corporate entities or financial records for corporate entities for which she was merely the custodian of records. Plaintiffs have provided no case authority fdr the proposition that a custodian of records may bring an action for violation ofa right of privacy related to confidential information which relates to third parties or corporate entities and/or -1- REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 COMPLAINT CASE NO.: 21CV381 1 10 \omQaM-AUJNt-A NNNNNNNNNHHHH-IHHn-n-AH OOQQM$WNHO©OOQGQJI$WN~O misappropriation of trade secrets owned by a corporate entity for which the party bringing the action is merely the custodian of records. Defendant’s demurrer should be sustained for uncertainty. ARGUMENT: A. A Special Demurrer May Be Brought If The Allegations In The Complaint Are Ambiguous Or Uncertain It has long been the rule in this state that “Objections that a complaint is ambiguous or uncertain, or that essential facts appear only inferentially, or as conclusions of law, or by way of recitals, must be raised by special demurrer, and cannot be reached on general demurrer.” (Johnson v. Mead (1987) 191 C.A. 3d 156, 160, 236 Cal. Rptr. 277). Plaintiff's allegations are contradictory and confusing. In Paragraph l4, at lines 16-18, Plaintiff alleges: “Additionally, on or about March 8, 2021 , Julian Ting informed Plaintiffs that Defendant was asking questions about companies, real property, and assets for which he had no ownership interest in whatsoever, but rather were owned and/or managed by Nicole Ting-Yap, her husband, and/or her in-laws. ” In paragraph l7, Nicole Ting-Yap alleges that she is merely the custodian of records for the financial records, trade secrets and business records that she describes. In paragraph 23, it is alleged that Defendant took pictures of “private and confidential information that includes bank records for JCT Holdings, Setima, and Chelsea Capital.” Nicole Ting-Yap is alleged to merely be a director and the custodian of records for these entities. In paragraphs 75 and 76, she alleges that she was the owner and/or licensee of trade secret information for which she was the custodian of records. In paragraph 76, she refers to entities whose trade secrets she held. These allegations are contradictory and ambiguous. Which information was she merely the custodian of records, and which information did she personally own or have a license to use? B. Plaintiffs Have No Standing T0 Bring A Claim For Violation of The Right 0f Privacy Held By Corporate Entities And/Or For Misappropriation of Trade Secrets If She Is Merely The Custodian of Records IfNicole Ting-Yap is merely a shareholder, director or custodian of records she has no standing to being a claim for violation of the right of privacy held by another individual or entity. Plaintiff has cited no case authority, as none exists that a custodian of records can bring any of these _ 2 - REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 COMPLAINT CASE NO.: 21CV381110 \Omxlmm-bw'wp- NNNNNNNNI-t-tt-v-r-IH-tn-a-n-n gQQMAWNHOWWNOMhWNHO claims. Plaintiffs have cited several cases dealing with a claim for conversion where the courts held that a person in possession of personal property can bring a claim for conversion of that property if it is taken from them. In the instance where a physical object is taken this makes sense. With respect to intangible property, such as a trade secret, it may not. In the Silvaco Data Systems v. Intel Corp. case cited by Plaintiffs (184 C. A. 4‘“ 210; 109 Cal. Rptr. 3d 27), the court noted that a misappropriation may be achieved by acquisition, disclosure or use. In this case, the only act alleged is the alleged improper acquisition. Although the court, in Silvaco, stated that a claim may be brought for misappropriation if the trade secret is possessed by the plaintiff. But in the case of the custodian of records, the custodian has no right to disclose or use the information. The custodian cannot suffer any damages by the improper acquisition of the trade secret by a third party because the custodian has no right to use or license the use to a third party. At best, the custodian has the right to regain possession but nothing more. The custodian of records certainly would have no claim for a violation of a right of privacy with respect to information relating to a corporate entity or third party because the claim cannot be brought by another on a “relational basis.” (Coverstone v. Davies (1952) 38 Cal. 2d 315, 323; 239 P. 2d 876) In other words, if the information is personal to one of the entities or to a third party, the claim for invasion must be brought by the person 0r entity who suffered the harm directly. Even more fundamental is whether a corporate entity can bring such a claim. The types of conduct giving rise to a claim for invasion of privacy include: (1) intrusion upon Plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. (Eastwood v. Superior Court (l 983) 149 C.A. 3d 409, 416; 198 Cal. Rptr. 342) This is a tort that can only committed with respect to an individual. A corporation cannot bring a claim akin to a claim for emotional distress or defamation as a corporation cannot suffer a personal injury. /// - 3 - REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT CASE NO.: 21CV381 I 10 \OOOflQm-wag-a NNNNNNNNh-Ir-Iu-Iu-np-nn-auy-Ap-‘H gflamAWN-‘OOOONQM#WNHO C. Plaintiffs Must Allege Which Subsection of Penal Code Section 502 Defendant Allegedly Violated Plaintiffs, in opposition to the demurrer, cite Penal Code Section 502(c) as the subsection they are relying upon but the complaint does not so state. Instead, it refers to Penal Code Section 502 generally and nothing more specific. There are numerous subsections of 502, each of which are separate and distinct from one another, describing different conduct or acts that are prohibited under the statute. Statutory causes of action must be pled with particularity. (Lopez v. Southern California Rapid Transit Dist. (1985) 40 Cal. 3d. 780, 795) Plaintiffs are required to plead which specific subsections of Section 502 were allegedly violated by Defendant so that she may defend that claim, rather than having to defend all of the subsections contained in 502. CONCLUSION: On the basis of the above-cited cases and authorities, Defendant’s demurrer should be sustained. DATED: September. ((2021 LAW OFFICES 0F MICHAEL GVACKERMANfl///c IK/MICHAEL . ACKERMAN, ESQ. Attorneys or Defendant, PANIDA CHINSUPAKUL _ 4 _ REPLY MEMORANDUM OF POINTS AND AUTHORITIES [N SUPPORT 0F DEMURRER TO COMPLAINT CASE NO.: 21CV381110 KOOOflOUI-bUJN-n NNNNNNNNNHp-t-tt-Ib-at-tu-d-‘fl-A mfl¢UlAwNflo©mflathN~o PROOF 0F SERVICE The undersigned declares: I am a citizen of the United States and a resident of Santa Clara County, State of California. I am over the age of eighteen (1 8) years and not a party to the within above-entitled action. My business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050. On September 16, 2021, I served a copy of the following document(s) described as: - REPLY MEMORANDUM IN SUPPORT OF DEMURRER TO COMPLAINT on the interested parties in this action by placing true copies thereof to the person(s) listed below: Ms. Skye Langs, Esq. COBLENTZ PATCH DUFFY & BASS LLP One Montgomery St., Suite 3000 San Francisco, CA 94104 Telephone: (415) 391-4800 Facsimile: (415) 989-1663 email: ef-sdl c db.com (Attorneyfor Plaintiffs, Anne Ting, Jack Ting, and Nicole Ting-Yap) ( ) (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara, California. ( (By E-Mail) I caused a true copy of the foregoing document to be served on Skye Langs, of Coblentz Patch Duffy & Bass LLP, at slangs@coblentzlaw.com. The e-mails were complete and no reports of error were received on September 16 2021. ( ) (By Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P. §101 3(e), calling for agreement and written confirmation of that agreement on court order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete and without error. ( ) (By Federal Express) I caused to be served a true and correct copy enclosed in a sealed - 5 _ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT CASE NO.: 21CV381110 KOOONQMAUJNp-a NNNNNNNr-It-‘n-In-tn-Iv-th-lt-tp-A.‘ gBONM-hWNHOKOOOQQM-PMN-‘o package, for California Overnight collection and for overnight delivery. I had said envelope marked for collection and overnight delivery to the addressed and to the office of the addressee(s) as above indicated. In the ordinary course of business and including said overnight envelopes, will be deposited with Federal Express at Santa Clara, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed in the City of Santa Clara, State of California on September 16, 2021. P ANIE L. S _ 6 - REPLY MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEMURRER T0 COMPLAINT CASE No.: 21CV381110