Cellular Accessories For Less Inc v. Trinitas LLC et al, No. 2:2012cv06736 - Document 86 (C.D. Cal. 2014)


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Cellular Accessories For Less Inc v. Trinitas LLC et al Doc. 86 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 CELLULAR ACCESSORIES FOR LESS, INC., a California corporation, 13 14 15 16 17 Plaintiff, v. TRINITAS LLC, a Texas limited liability company; DAVID OAKS, an individual, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-06736 DDP (SHx) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Dkts. 52, 53] 18 19 Presently before the court are a motion for summary judgment 20 by Plaintiff Cellular Accessories for Less, Inc. (“Cellular”) and a 21 motion for summary judgment by Defendants Trinitas LLC (“Trinitas”) 22 and David Oakes (collectively, “Defendants”). 23 address one claim in common, a breach of contract claim, but 24 otherwise address distinct issues. 25 I. BACKGROUND 26 These motions Cellular and Trinitas are both sellers of mobile phone 27 accessories to businesses. 28 “Sales Account Manager” from June 2, 2004 to December 27, 2010, David Oakes worked for Cellular as a Dockets.Justia.com 1 when he was terminated. 2 Mitchell Langstein.) 3 start of his employment in 2004. 4 Employment Agreement contained a clause reading: “CAFL [i.e., 5 Cellular] requests that proprietary information remains the 6 property of this organization and may not leave, either physically 7 or electronically unless approved in writing by Mitch[ell 8 Langstein].” 9 base” within the sweep of “proprietary information.” 10 Id. (Ex. A, Decl. David Oakes; Mot. Decl. Oakes signed an “Employment Agreement” at the (Ex. A, Oakes Decl.) The That clause also included Cellular’s “customer Id. Oakes also signed a “Statement of Confidentiality” on January 11 7, 2008, which stated that he would not “knowingly disclose, use, 12 or induce or assist in the use or disclosure of any Proprietary 13 Information . . . or anything related to Proprietary Information . 14 . . without the Company’s prior express written consent.” 15 Oakes Decl.) 16 Statement as: (Ex. D, “Proprietary Information” was defined in the 17 information (a) that is not known by actual or potential 18 competitors of the company or is generally unavailable to the 19 public, (b) that has been created, discovered, developed, or 20 which has otherwise become known to the Company . . . and (c) 21 that has material economic value or potential material 22 economic value to the Company’s present or future business. 23 Id. 24 they disagree as to whether a valid contract was formed thereby. 25 (Def.’s Mot. Summ. J., § III.B.3.a.) 26 The parties agree that Oakes signed the Statement; however, In late 2010, shortly before being terminated, Oakes emailed 27 himself a digital file created with the ACT computer program (“ACT 28 file”) containing the contact information for some 900+ business 2 1 and personal contacts. 2 his LinkedIn contact information after his termination. 3 Oakes Decl.) 4 himself the direct contact information for the purchasing agents of 5 certain clients, information on clients’ billing preferences and 6 procedures, clients’ past pricing requests, and at least one 7 internal strategy document regarding a client, Honeywell. 8 J, L, Decl. Obi Iloputaife.) 9 (Ex. B, Oakes Decl.) He also maintained (Ex. C, Finally, Plaintiff alleges that he also emailed (Exs. B- Plaintiff also alleges that Oakes emailed or otherwise 10 contacted clients after his termination and accused Cellular of 11 “major unethical and deceitful acts done deliberately by management 12 towards its clients.” 13 Melanie Cogburn, at transcript pages 182-183.) 14 (Ex. N, Iloputaife Decl; Ex. A, Decl. After leaving Cellular, Oakes started his own company in Texas 15 which eventually became the company known as Trinitas. 16 directly competes with Cellular for business in the corporate 17 mobile phone accessory market. 18 Trinitas Plaintiff brings an action for damages and injunctive relief 19 on claims of “copyright infringement . . . breach of contract, 20 unfair competition, common law unfair competition, trade secret 21 misappropriation, unjust enrichment, intentional interference with 22 prospective business advantage, and trade libel.” (Compl. ¶ 4.) 23 In these motions for summary judgment, Plaintiff seeks summary 24 judgment on the issues of breach of contract and unfair competition 25 resulting from that breach. 26 all issues except copyright infringement, arguing that (1) there is 27 no triable issue of fact on the trade secret claim under the 28 California Uniform Trade Secrets Act (“CUTSA”); (2) Plaintiff’s Defendant seeks summary judgment on 3 1 common-law torts are preempted by CUTSA; (3) there was no breach of 2 contract because there was no contract, no breach, and/or no actual 3 damages; and (4) that there is no triable issue of fact with regard 4 to trade libel. 5 II. LEGAL STANDARD 6 A party may move for summary judgment with regard to any claim 7 or defense or any part of any claim or defense. Fed.R.Civ.P. 8 56(a). 9 that there is no genuine dispute as to any material fact and the The court must grant summary judgment if “the movant shows 10 movant is entitled to judgment as a matter of law.” Id. 11 complete failure of proof concerning an essential element of the 12 nonmoving party's case necessarily renders all other facts 13 immaterial.” 14 The moving party bears the burden of identifying “those portions of 15 the pleadings, depositions, answers to interrogatories, and 16 admissions on file, together with the affidavits, if any, which it 17 believes demonstrate the absence of a genuine issue of material 18 fact” regarding a particular claim or defense. 19 quotation marks omitted). 20 III. DISCUSSION 21 A. CUTSA Trade Secret Misappropriation “[A] Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Id. (internal 22 California has adopted a statutory trade secrets scheme, the 23 California Uniform Trade Secrets Act (“CUTSA”), Cal. Civil Code § 24 3426 et seq. 25 misappropriation” of trade secrets may be enjoined, Cal. Civ. Code 26 § 3426.2, and a plaintiff may also sue for damages equal to “the 27 actual loss caused by misappropriation” as well as any “unjust 28 enrichment caused by misappropriation that is not taken into Under CUTSA, “[a]ctual or threatened 4 1 account in computing damages for actual loss.” 2 3426.3. Cal. Civ. Code § Trade secrets are defined as any 3 information, including a . . . compilation . . . that: 4 (1) Derives independent economic value, actual or potential, 5 from not being generally known to the public or to other 6 persons who can obtain economic value from its disclosure or 7 use; and 8 (2) Is the subject of efforts that are reasonable under the 9 circumstances to maintain its secrecy. 10 Cal. Civ. Code § 3426.1. 11 Misappropriation is defined as, inter alia, 12 [d]isclosure or use of a trade secret of another without 13 express or implied consent by a person who . . . [a]t the time 14 of disclosure or use, knew or had reason to know that his or 15 her knowledge of the trade secret was . . . [a]cquired under 16 circumstances giving rise to a duty to maintain its secrecy or 17 limit its use . . . . 18 19 Id. Three different types of information might be subject to trade 20 secret law in this case. 21 Oakes emailed himself the ACT file, as well as numerous additional 22 items described above. 23 that Oakes retained contacts in his LinkedIn social networking 24 account that he created while employed at Cellular. 25 Cellular alleges, and provides exhibits to show, that Oakes emailed 26 himself a number of other files and documents relating to 27 customers, including the direct contact information for those with 28 the power to do business, information about purchasing and billing First, the parties do not dispute that Second, the parties also do not dispute 5 Third, 1 preferences or requirements, and specific strategy information 2 relating to one client, Honeywell. 3 that Oakes took all the documents alleged in this third category of 4 information, but neither do they precisely admit it. 5 Reply does admit that Oakes took certain documents relating to 6 Honeywell and its “purchasing requirements.” 7 Defendants do not directly deny Defendants’ (Def.’s Reply, § I.) The removal of the ACT file, containing customer information, 8 is the primary point of contention. 9 customer list may constitute a protectable trade secret." Gable "It is well-established that a 10 Leigh, Inc. v. North Am. Miss, No. CV 01-01019 MMM(SHX); 2001 WL 11 521695 at *15 (C.D. Cal. Apr. 13, 2001) (citing cases). 12 such lists are not automatically trade secrets, because many 13 customer lists contain no information which is not “easily 14 discoverable through public sources.” 15 Snelling, Inc., 732 F. Supp. 1034, 1044 (N.D. Cal. 1990). 16 where “the employer has expended time and effort identifying 17 customers with particular needs or characteristics,” the list can 18 be a protectable trade secret. Mor-Life, Inc. v. Perry, 56 Cal. 19 App. 4th 1514, 1521 (1997). 20 determining whether a customer list is a trade secret is the amount 21 of effort involved in compiling it. 22 the information are “sophisticated,” “difficult,” or “particularly 23 time consuming,” that tends to show that it is a trade secret. 24 Paper & Packaging Products, Inc. v. Kirgan, 183 Cal. App. 3d 1318, 25 1326 (1986). 26 lists be the product of some significant effort is that information 27 which is easily and publicly available does not convey enough However, Scott v. Snelling & But Thus, the chief factual issue in If the methods used to compile Am. The underlying rationale for requiring that customer 28 6 1 “independent economic value” to its holder to satisfy the first 2 prong of the § 3426.1 definition. 3 Scott, 732 F. Supp. at 1044. Defendants argue that Plaintiff has failed to carry its burden 4 of showing that the ACT file is the product of significant effort. 5 Defendant contends that all the information in the ACT file is 6 easily obtained through public sources. 7 extensive information about Fortune 1000 companies, through a 8 standard internet search.” 9 “Anyone can easily get (Def.’s Mot. Summ. J., § B.1.) However, whether the information in Oakes’ ACT file could be 10 so easily obtained is in dispute. 11 declares that “[t]o build a list of cellular accessories 12 procurement officers requires the expenditure of a significant 13 amount of time and money,” that “Cellular hires and pays employees 14 who are tasked with cold-calling companies and working their way 15 past the ‘gatekeepers’ to reach the right procurement officer,” 16 that David Oakes was similarly required, during his employment with 17 Cellular, to make such calls, that Oakes and other employees were 18 encouraged to “network” with employees at prospect companies, that 19 Oakes made such networking contacts in the course of his 20 employment, and that, in short, “information found in [the] 21 customer list is not available in public directories.” 22 Decl. Mitchell Langstein, ¶¶ 32-35, 39, 40-41, 49-52. 23 M, Opp’n Decl. Rasheed McWilliams (deposition of Mitchell Langstein 24 describing method by which sales agents attempt to identify 25 “decision makers” at target companies).) 26 Cellular CEO Mitchell Langstein (Reply See also Ex. Indeed, Oakes’ own declaration supports this narrative: “I was 27 directed to generate business . . . . 28 customer lists, but was told to begin making cold calls to generate 7 I was given no leads or 1 new business for the company . . . . 2 depended on a number of factors, including the relationships I was 3 able to form with the individuals . . . . 4 calls, I would put their information into my ACT file.” 5 Decl., ¶¶ 2-3.) 6 Getting business usually As I began to make (Oakes On the other hand, Oakes also says that “All individuals I 7 talked to–at any company–had already been contacted by other 8 competitors,” (Oakes Decl., ¶ 2), and that LinkedIn suggested 9 contacts to him automatically–facts which, if true, tend to show 10 that his information-gathering techniques were not especially 11 “sophisticated” or “difficult.” 12 13 14 Kirgan, 183 Cal. App. 3d at 1326. In short, there is a genuine issue of fact as to how difficult the information in the ACT file was to obtain. Defendants also argue that David Oakes’ LinkedIn contacts were 15 not a trade secret, because Cellular encouraged its employees to 16 create and use LinkedIn accounts, (Oakes Decl. ¶ 2), and Oakes’ 17 LinkedIn contacts would have been “viewable to any other contact he 18 has on LinkedIn.” 19 on the other hand, that LinkedIn information is only available to 20 the degree that the user chooses to share it. 21 Mitchell Langstein, ¶ 44; Pl.’s Opp’n, § III.B.5.) 22 according to Plaintiff’s declarant, it is not automatically the 23 case that contact information is “viewable to any other contact.” 24 Oakes’ declaration does not say whether this characterization of 25 the functionality of LinkedIn is accurate, or if it is, whether he 26 had set his contacts to be viewable. 27 take judicial notice of the functions of LinkedIn, and because the 28 parties’ declarants do not make sufficiently clear whether and to (Def.’s Mot. Summ. J., § II.) 8 Plaintiff argues, (Reply Decl. Therefore, Because the Court declines to 1 what degree Oakes’ LinkedIn contacts were indeed made public (and 2 whether this was done with Cellular’s explicit or implicit 3 permission), there remain issues of material fact as to the 4 LinkedIn information. 5 As to the third type of information–the emails containing 6 contact information, emails indicating customer preferences, and 7 internal memo–Defendant does not address the matter separately, but 8 asserts that Oakes retained the Honeywell documents “for 9 posterity,” and that information about clients’ purchasing 10 requirements or preferences cannot be a trade secret because the 11 cellular accessories business is a “commodity business that shifts 12 and changes all the time.” 13 clear that if a customer list (gathered with a sufficient amount of 14 effort) can provide independent economic value to a business, 15 documentation of the past behavior and preferences of those 16 customers can be, too–even if market conditions change. 17 Honeywell memo, it appears to describe a successful method for 18 meeting a customer’s needs, which could likewise provide 19 independent economic value. 20 information, in conjunction with additional trade secret 21 information, such as customer product, pricing and payment 22 preferences, to win business from [and] maintain relationships with 23 clients.” 24 a genuine issue of material fact with regard to the economic value 25 of this information, too. 26 (Def.’s Reply, § I.) But it seems As to the “Cellular uses its customer (Reply Decl. Mitchell Langstein, ¶ 17.) Thus, there is Finally, Defendants argue (presumably with regard to all three 27 kinds of information) that Cellular fails to meet its burden as to 28 the second § 3426.1 definition of trade secret: showing that it 9 1 took reasonable steps to protect the information. 2 is a disputed issue of fact. 3 great lengths to keep its proprietary information confidential and 4 protected, using layers of passwords and SSL encryption,” and 5 describes in some detail which items are encrypted or password- 6 protected. 7 disputes this, admitting that his email was password-protected but 8 asserting that employee computers were generally left on and 9 unprotected. 10 But this, too, Cellular claims that it “goes to (Reply Decl. Mitchell Langstein, ¶ 23-24.) Oakes (Oakes Decl., ¶ 7.) With regard to both prongs, then, Defendants ask the Court to 11 make credibility determinations between competing statements by 12 motivated parties on both sides, each putting forth some factual 13 allegations which are not facially incredible. 14 not the Court’s role at summary judgment,1 which may be granted 15 only where “there is no genuine dispute as to any material fact” 16 Fed.R.Civ.P. 56(a). 17 That, however, is Defendant’s motion for summary judgment as to trade secret 18 misappropriation is denied. 19 B. Preemption 20 CUTSA “has, for the most part, superseded prior California 21 common law on trade secret issues.” Scott, 732 F. Supp. at 1044. 22 Thus, CUTSA preempts other claims “based on the same nucleus of 23 facts as trade secret misappropriation.” 24 Bank of Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939, 962 25 (2009). K.C. Multimedia, Inc. v. 26 1 27 28 “That an affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact.” United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). 10 1 Defendant contends that several of Plaintiff’s tort 2 claims–statutory and common law unfair competition, unjust 3 enrichment, and interference with prospective business 4 advantage–are based on the same nucleus of facts as its trade 5 secret claim, and are therefore preempted. 6 § III.B.2.) 7 the factual foundations of its tort claims, insisting that “they 8 arise from David Oakes’ defamatory and libelous acts following his 9 termination.” 10 (Def.’s Mot. Summ. J., Plaintiff responds that Defendant has mischaracterized (Pl.’s Mot. Summ. J., § II.C.) Plaintiff’s Third Cause of Action (statutory unfair 11 competition) and Fourth Cause of Action (common law unfair 12 competition) appear to be based primarily on the allegation of 13 copyright infringement. 14 these claims may also rely on trade secret misappropriation, see 15 id. at ¶ 58, they are preempted. 16 (Compl. ¶¶ 50-60.) To the extent that Plaintiff’s Sixth Cause of Action (unjust enrichment) is also 17 preempted, to the extent that it is a common law claim based on the 18 same nucleus of facts as the trade secret claim. 19 plaintiff may also recover for unjust enrichment by trade secret 20 misappropriation under CUTSA itself. 21 Such statutory recovery would obviously not be preempted. 22 However, a Cal. Civil Code § 3426.3. Finally, Plaintiff’s Seventh Cause of Action (interference 23 with prospective business advantage) is based in part on the trade 24 secret claim. 25 However, to the extent that it is based on the trade libel claim, 26 id. at ¶ 80, it is not preempted. (Compl. ¶ 79.) To that extent, it is preempted. 27 Thus, each of these tort claims is preempted, and summary 28 judgment is granted, to the extent that it relies on the nucleus of 11 1 facts of the trade secrets claim. 2 based on some alternative set of facts as well, each claim survives 3 preemption in part. 4 C. Trade Libel 5 However, because each is also In California, trade libel must be proved by showing, “at a 6 minimum: (1) a publication [of a disparaging statement]; (2) which 7 induces others not to deal with plaintiff; and (3) special 8 damages.” 9 766, 773 (1985) (parentheses omitted). Nichols v. Great Am. Ins. Companies, 169 Cal. App. 3d 10 Cellular alleges that Defendants “published one or more false 11 statements which were intended to disparage CELLULAR ACCESSORIES’s 12 good and services.” 13 judgment were filed, the only evidence Cellular had produced of 14 such statements were a declaration and deposition of its CEO 15 Mitchell Langstein alleging he had heard from some customers that 16 David Oakes had made certain potentially disparaging remarks to his 17 customers via email. 18 86.) 19 However, at the time motions for summary (E.g., Opp’n Decl. Mitchell Langstein, ¶¶ 79- This evidence suffers two defects. First, Langstein’s 20 allegation as to the contents of an email is not the best evidence 21 of the contents of that email. 22 photograph is required in order to prove its content . . . .” 23 R. Evid. 1002; United States v. Bennett, 363 F.3d 947, 954 (9th 24 Cir. 2004) (holding that “a printout or other representation” of 25 electronically stored data is the best evidence of that data). 26 Second, even if the contents of the email could be acceptably 27 reconstructed through testimony or declarations, Langstein nowhere 28 directly alleges that he personally saw the emails. “An original writing, recording, or 12 Fed. At best, he 1 alleges that some of his customers alerted him to the contents of 2 the emails. 3 pages 79-83.) 4 (nor does there appear to be any forthcoming at trial), Langstein’s 5 statements, based on inadmissible hearsay, are not enough to prove 6 the contents of the email. 7 (E.g., Ex. A, Decl. Melanie Cogburn, at transcript As there is no direct evidence from those customers Fed. R. Evid. 801-802. Cellular attempts to cure these defects by attaching to its 8 reply an email purported to be from another of Cellular’s 9 customers, Gary Merritt. (Ex. N, Iloputaife Decl.) This email 10 might meet the best evidence rule—although it is a third party’s 11 email quoting the Oakes email, not the Oakes email itself, which 12 could raise hearsay issues. 13 In any event, Cellular has, without explanation, introduced 14 this evidence only at the reply stage, thus denying Defendants the 15 opportunity to respond to it. Given that the email, if authentic, 16 would already have been in Cellular’s possession at the time the 17 company initiated this proceeding, the Court sees no reason for 18 such a long delay in presenting this evidence. 19 discretion to ignore evidence introduced for the first time in a 20 reply brief, In re McAllister, No. BAP CC-13-1578, 2014 WL 3955008 21 (B.A.P. 9th Cir. Aug. 13, 2014) (“[C]onsideration of new arguments 22 or evidence in a reply falls within the discretion of the trial 23 court.”), and because considering the email at this stage would 24 prejudice the Defendants for no good reason, the Court chooses not 25 to do so. 26 The Court has the Thus, Defendants have successfully pointed to an absence of 27 any admissible evidence to show publication of a disparaging 28 statement that induced others not to deal with Plaintiff, an 13 1 essential element of the trade libel claim. 2 granted to the Defendants on this claim. 3 Summary judgment is Because Cellular’s interference with prospective business 4 advantage survives only to the extent that it relies on the facts 5 of the trade libel claim, § III.B. supra, and because those facts 6 are not proven, Defendants are granted summary judgment on that 7 claim as well. 8 D. Breach of Contract and Related Claims 9 Plaintiff and Defendants both move for summary judgment on the 10 issue of breach of contract.2 11 undisputed that David Oakes signed both the Employment Agreement 12 and the Statement of Confidentiality; that those documents mandated 13 that Oakes not disclose or remove proprietary information; and that 14 it is also undisputed that Oakes took the ACT file and certain 15 other information as well. 16 law it is entitled to judgment as to breach of contract. 17 Cellular argues that it is Thus, Cellular contends, as a matter of Defendant Oakes counters that there was no valid contract as 18 to the Statement of Confidentiality, because there was no new 19 consideration; that even if there was a contract, there was no 20 breach, because the information in question was not confidential or 21 proprietary; and that there is no allegation of actual damages. 22 The Court finds that both the Employment Agreement and the 23 Statement of Confidentiality could be found by a rational trier-of- 24 fact to be valid agreements. 25 Agreement does not appear to contain any provision specifying its 26 length or end date, and so it is presumed to be an at-will As a starting point, the Employment 27 28 2 This claim is solely against Defendant Oakes. 14 1 agreement. Cal. Labor Code § 2922. Absent some sort of 2 integration or anti-modification clause, an at-will employment 3 agreement can generally be modified by an employer at any time; the 4 modification essentially terminates the prior agreement and creates 5 a new, unilateral contract, which the employee accepts by 6 continuing to work for the employer under the modified terms. 7 DiGiacinto v. Ameriko-Omserv Corp., 59 Cal. App. 4th 629, 633 8 (1997) (holding that a modification to an at-will employment 9 contract reducing the employee’s salary did not breach, but rather 10 terminated and replaced, the employment contract). 11 for continued employment is, itself, consideration for the new 12 agreement. See 13 The opportunity Id. The Statement of Confidentiality being a modification of the 14 Employment Agreement that created a new, valid contract, the 15 question is whether Defendants violated that contract. 16 Statement of Confidentiality forbade employees to disclose or use 17 proprietary information, which it defined on substantially the same 18 terms as the CUTSA trade secret definition: namely, information 19 that is not known to competitors or the public, obtained by the 20 company, that confers an economic benefit. 21 Because of this, resolution of the breach of contract claim would 22 require resolution of essentially the same disputed facts discussed 23 above in § III.A.3 24 Defendant Oakes did not breach the contract. The (Ex. D, Oakes Decl.) Thus, it cannot be said as a matter of law that 25 However, Defendants are correct that a breach of contract 26 claim requires a showing of damages; those damages are in “the 27 3 28 Note that this does not render the contract claim preempted by CUTSA. Cal. Civ. Code § 3426.7(b). 15 1 amount which will compensate the party aggrieved for all the 2 detriment proximately caused [by the breach], or which, in the 3 ordinary course of things, would be likely to result therefrom.” 4 Cal. Civ. Code § 3300. 5 must be “clearly ascertainable in both their nature and origin.” 6 Cal. Civ. Code § 3301. 7 in tort cases, requires that the damages be proximately caused by 8 the defendant's breach, and that their causal occurrence be at 9 least reasonably certain.” 10 The causal element is critical. Damages “Causation of damages in contract cases, as Vu v. California Commerce Club, Inc., 58 Cal. App. 4th 229, 233 (1997). 11 Thus, in order to defeat Defendants’ motion for summary 12 judgment, Cellular is required to put forth evidence from which a 13 rational trier-of-fact could conclude that Oakes’ breach of the 14 proprietary information provisions in his contract in fact caused 15 Cellular a loss of business. 16 burden. Here, Cellular has not carried that 17 Cellular asserts that “[o]ver the course of three years, 18 Cellular lost and Defendant gained a proportional increase in 19 sales” to those customers. 20 trend, if it could be shown, might well be enough to show damages 21 circumstantially. 22 proportional loss and gain by the parties. 23 satisfactorily show that in the three years after Oakes was 24 terminated from his employment with Cellular, Trinitas’ sales 25 volume increased–including sales to some past or current customers 26 of Cellular. 27 exhibits show nothing at all about Cellular’s sales; so far as the 28 Court can determine, Plaintiff’s sole piece of evidence regarding (Pl.’s Opp’n, § III.B.2.) Such a But Cellular does not show a trend of Its evidence does (Ex. N, Opp’n Decl. Rasheed McWilliams.) 16 But its 1 its own sales figures is Mitchell Langstein’s statement that “[i]n 2 2012, there was a large reduction in the volume of Cellular’s sales 3 to Atmos Energy.” 4 that fact, alone, is not sufficient to allow direct comparison 5 between Cellular’s and Trinitas’ sales. 6 the reduction in fact “proportional” to Trinitas’ gain? 7 Cellular lose sales in the other years? 8 can be answered on Plaintiff’s evidence. 9 (Opp’n Decl. Mitchell Langstein, ¶ 87.) But How large is “large”? Was Did None of these questions Plaintiff’s proof of causation with regard to damages–and, 10 indeed, the existence of any actual loss at all–is not sufficient 11 to allow a rational trier-of-fact to find for Plaintiff on a breach 12 of contract claim. 13 Any related claims, including unfair competition based specifically 14 on breach of contract, therefore also fail. 15 IV. CONCLUSION 16 Defendant’s motion is granted on this claim. Defendants’ motion for summary judgment is denied as to the 17 CUTSA trade secret claim. It is granted as to the trade libel and 18 interference with prospective business advantage claims. 19 granted in part as to the statutory and common law unfair 20 competition claims, inasmuch as they are based on trade secret 21 misappropriation, but denied inasmuch as they may be based on the 22 facts of other claims. 23 unjust enrichment claim, inasmuch as it is based on common law 24 principles rather than recovery under CUTSA. 25 motion for summary judgment is granted, and Plaintiff’s motion 26 /// 27 /// It is The motion is granted in part as to the 28 17 Finally, Defendant’s 1 denied, as to the breach of contract claim and any unfair 2 competition claims dependent on that claim. 3 4 IT IS SO ORDERED. 5 6 7 Dated: September 16, 2014 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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