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This case was last updated from Los Angeles County Superior Courts on 11/18/2019 at 22:27:45 (UTC).

DON LEE FARMS VS SAVAGE RIVER INC

Case Summary

On 05/25/2017 DON LEE FARMS filed a Contract - Other Contract lawsuit against SAVAGE RIVER INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2838

  • Filing Date:

    05/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

DON LEE FARMS A DIVISION OF GOODMAN

DON LEE FARMS

PROPORTION FOODS LLC

Defendants and Respondents

BEYOND MEAT

SAVAGE RIVER INC

DOES 1 TO 10

BEYOND MEAT INC. FKA SAVAGE RIVER DBA

SAVAGE RIVER INC.

BLENTECH CORPORATION 3RD PARTY

SAVAGE RIVER INC. DBA BEYOND MEAT

Defendant and Cross Plaintiff

SAVAGE RIVER INC.

Not Classified By Court

BONNER ROBERT C. RET.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

PLATT DANIEL A. ESQ.

PLATT DANIEL ADAM

LEE EDWARD K.

PLATT DANIEL ADAM ESQ.

PLATT DANIEL A.

DILLARD JOHN G.

Defendant Attorneys

CHARLES GARY

MAZZIA CHRISTOPHER MITCHELL

KAMIN MITCHELL AARON

YEUNG CHRISTOPHER Y.L. ESQ.

KAMIN MITCHELL A.

YEUNG CHRISTOPHER Y.L.

SAHNI NEEMA T.

MAZZIA CHRISTOPHER M.

Plaintiff and Cross Defendant Attorneys

PLATT DANIEL A.

BAUCH JIM DAVIS

LAPIDUS DANIEL C.

CATALANO ROBERT J.

BAUCH JIM D.

Other Attorneys

COVINGTON & BURLING LLP

 

Court Documents

Reply - REPLY DON LEE FARMS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR AN ORDER COMPELLING THE DE-DESIGNATION OF DOCUMENTS

6/18/2019: Reply - REPLY DON LEE FARMS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR AN ORDER COMPELLING THE DE-DESIGNATION OF DOCUMENTS

Order - ORDER GRANTING DEFENDANT/CROSS-COMPLAINANT BEYOND MEAT, INC.'S MOTION FOR ORDER TO FILE DOCUMENTS UNDER SEAL

7/24/2019: Order - ORDER GRANTING DEFENDANT/CROSS-COMPLAINANT BEYOND MEAT, INC.'S MOTION FOR ORDER TO FILE DOCUMENTS UNDER SEAL

Minute Order - MINUTE ORDER (HEARING ON MOTION TO SEAL MOTION TO FILE DOCUMENTS UNDER SEAL...)

7/24/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO SEAL MOTION TO FILE DOCUMENTS UNDER SEAL...)

Declaration - DECLARATION COMPENDIUM OF EVIDENCE IN SUPPORT OF DON LEE FARMS' OPPOSITION TO PROPORTION FOODS' MOTION FOR SUMMARY JUDGMENT

5/3/2019: Declaration - DECLARATION COMPENDIUM OF EVIDENCE IN SUPPORT OF DON LEE FARMS' OPPOSITION TO PROPORTION FOODS' MOTION FOR SUMMARY JUDGMENT

Notice - NOTICE DON LEE FARMS' CONSOLIDATED NOTICE OF LODGING, PURSUANT TO CRC 2.551(B)(3)(A)(III), OF DOCUMENTS DESIGNATED AS "CONFIDENTIAL" OR "HIGHLY CONFIDENTIAL"

5/3/2019: Notice - NOTICE DON LEE FARMS' CONSOLIDATED NOTICE OF LODGING, PURSUANT TO CRC 2.551(B)(3)(A)(III), OF DOCUMENTS DESIGNATED AS "CONFIDENTIAL" OR "HIGHLY CONFIDENTIAL"

Declaration - DECLARATION SAHNI DECLARATION ISO STATEMENT IN RESPONSE_REDACTED

5/10/2019: Declaration - DECLARATION SAHNI DECLARATION ISO STATEMENT IN RESPONSE_REDACTED

PROOF OF ELECTRONIC SERVICE

3/23/2018: PROOF OF ELECTRONIC SERVICE

DANIEL VOLT'S DECLARATION IN SUPPORT OF THIRD-PARTY BLENTECH CORPORATION'S OPPOSITION TO DON LEE FARMS' MOTION TO COMPEL AND MOTION FOR SANCTIONS

4/11/2018: DANIEL VOLT'S DECLARATION IN SUPPORT OF THIRD-PARTY BLENTECH CORPORATION'S OPPOSITION TO DON LEE FARMS' MOTION TO COMPEL AND MOTION FOR SANCTIONS

NOTICE OF SERVICE OF DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ON QVEST, LLC.

7/12/2018: NOTICE OF SERVICE OF DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ON QVEST, LLC.

SEPARATE STATEMENT IN SUPPORT OF DEFENDANT/CROSSCOMPLAINANT BEYOND MEAT, INC.'S NOTICE OF MOTION AND MOTION TO COMPEL TRADE SECRET DESIGNATION

9/12/2018: SEPARATE STATEMENT IN SUPPORT OF DEFENDANT/CROSSCOMPLAINANT BEYOND MEAT, INC.'S NOTICE OF MOTION AND MOTION TO COMPEL TRADE SECRET DESIGNATION

Proof of Service -

9/25/2018: Proof of Service -

Notice - Don Lee Farms' Notice of Withdrawal of Its Motion for Leave to File Its First Amended Complaint

10/25/2018: Notice - Don Lee Farms' Notice of Withdrawal of Its Motion for Leave to File Its First Amended Complaint

Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order) of 11/08/2018

11/8/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order) of 11/08/2018

Proof of Personal Service - Proof of Electronic Service

11/13/2018: Proof of Personal Service - Proof of Electronic Service

Answer

12/3/2018: Answer

Proof of Service (not Summons and Complaint)

2/4/2019: Proof of Service (not Summons and Complaint)

NOTICE OF SERVICE OF DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ON TARRANT COUNTY PUBLIC HEALTH

1/11/2018: NOTICE OF SERVICE OF DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ON TARRANT COUNTY PUBLIC HEALTH

DECLARATION OF NEEMA T. SAHNI IN SUPPORT OF APPLICATION FOR COMMISSION TO ISSUE SUBPOENA FOR PRODUCTION OF DOCUMENTS BY SILLIKER, INC.

12/22/2017: DECLARATION OF NEEMA T. SAHNI IN SUPPORT OF APPLICATION FOR COMMISSION TO ISSUE SUBPOENA FOR PRODUCTION OF DOCUMENTS BY SILLIKER, INC.

263 More Documents Available

 

Docket Entries

  • 05/18/2020
  • Hearing05/18/2020 at 09:00 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/08/2020
  • Hearing05/08/2020 at 08:30 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 05/08/2020
  • Hearing05/08/2020 at 08:30 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/06/2020
  • Hearing02/06/2020 at 08:30 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Order to unseal Discovery Referee's Report

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  • 12/10/2019
  • Hearing12/10/2019 at 09:30 AM in Department 82 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Writ of Attachment (CCP 484.040)

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  • 11/12/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Don Lee Farms (Plaintiff)

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  • 11/12/2019
  • DocketMotion for Order (DON LEE FARMS? NOTICE OF MOTION AND MOTION TO UNSEAL DISCOVERY REFEREE?S REPORT AND RECOMMENDATIONS); Filed by Don Lee Farms (Plaintiff)

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  • 11/12/2019
  • DocketMotion to Compel (Motion to Compel Response to Requet for Production No. 65); Filed by Beyond Meat, Inc. (fka Savage River dba (Defendant)

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  • 11/12/2019
  • DocketDeclaration (ISO Motion to Compel); Filed by Beyond Meat, Inc. (fka Savage River dba (Defendant)

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  • 11/12/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Beyond Meat, Inc. (fka Savage River dba (Defendant)

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408 More Docket Entries
  • 07/27/2017
  • DocketDEFENDANT/CROSS-COMPLAINANT SAVAGE RIVER, INC.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF/CROSS- DEFENDANT DON LEE FARM'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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  • 07/27/2017
  • DocketMotion to Strike; Filed by Savage River, Inc. (Defendant); Beyond Meat (Legacy Party)

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  • 07/27/2017
  • DocketDeclaration; Filed by Savage River, Inc. (Defendant); Beyond Meat (Legacy Party)

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  • 07/27/2017
  • DocketDemurrer; Filed by Savage River, Inc. (Defendant); Beyond Meat (Legacy Party)

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  • 07/27/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Savage River, Inc. (Defendant); Beyond Meat (Legacy Party)

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  • 07/27/2017
  • DocketProof of Service

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  • 07/27/2017
  • DocketPoints and Authorities; Filed by Beyond Meat (Legacy Party)

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  • 05/25/2017
  • DocketSUMMONS

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  • 05/25/2017
  • DocketCOMPLAINT FOR: (1) BREACH OF CONTRACT; ETC

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  • 05/25/2017
  • DocketComplaint; Filed by Don Lee Farms (Plaintiff)

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Tentative Rulings

Case Number: BC662838    Hearing Date: April 16, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

ORDER RE: MOTION FOR SUMMARY ADJUDICATION

Original Hearing Date: April 16, 2021

Time: 8:30 a.m.

Dept. 56

On the Court’s own motion, the Court continues the hearing on the motion for summary adjudication[1], filed Plaintiff and Cross-Defendant Don Lee Farms, scheduled for 4/16/2021 at 8:30 a.m. at Stanley Mosk Courthouse in Department 56 to 5/7/2021 at 8:30 a.m. in Department 56.

Moving party is ordered to give notice of this ruling.

Dated this 12th day of April 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] This motion has a reservation identification number ending in 6061.

Case Number: BC662838    Hearing Date: March 25, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS-ACTION AND RELATED CASE

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION TO SEAL

Date: March 25, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

DLF filed a motion (the “Motion”) for an order sealing the unredacted version of DLF’s separate statement in opposition to Defendant and Cross-Complainant Beyond Meat, Inc.’s motion to compel further responses. The Motion is unopposed.

After the Motion was filed, the parties entered into various joint stipulations to seal certain documents; however, the document at issue in the Motion is not within the scope of any of the stipulations entered into between the parties and granted by the Court.

Once again, the Court reminds the parties that they could have filed a stipulation addressing the relief at issue in the Motion. Such stipulation would have reduced the necessity of a hearing on an unopposed motion.

The Court GRANTS the Motion as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of March 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: March 18, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS-ACTION AND RELATED CASE

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION TO SEAL; DEMURRER TO COMPLAINT

Date: March 18, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”); Defendant CLW Foods, LLC (“CLW”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

Plaintiff filed the complaint in this action (the “Lead Case”) alleging the following causes of action: (1) breach of contract; (2) unfair competition under Bus. & Prof. Code § 17200 et seq.; (3) money owed and due; (4) declaratory relief; and (5) injunctive relief.

On October 28, 2020, in Don Lee Farms v. CLW Foods, LLC, LASC Case No. 20STCV41390 (the “2d Case”), Plaintiff filed a complaint (the “2d Case Complaint”) against CLW asserting causes of action for: (1) misappropriation of trade secrets; and (2) unfair competition under Bus. & Prof. Code § 17200 et seq.

On January 29, 2021, the Court deemed the Lead Case and the 2d Case as related, and the Court’s order stated that “BC662838 is the lead case” and that all hearings in cases other than the Lead Case were advanced to such date and taken off calendar.

The Current Motions

BMI filed a motion (the “Motion”) for an order sealing Exhibits 28 and 29 in connection with BMI’s: (1) motion for an order compelling further responses and/or production of documents related to BMI’s request for production numbers 126, 128, and 131 and form interrogatory 17.1 (requests for admission numbers 16 and 18-28); and (2) motion for an order imposing sanctions in the amount of $49,515.00. The Motion was not filed with an accompanying proof of service and is unopposed.

Prior to the Court deeming the Lead Case and 2d Case related, CLW filed a demurrer to the first and second causes of action in the 2d Case Complaint. Such demurrer, however, was not filed with an accompanying proof of service and is unopposed.

The Court will address the respective motions filed by the parties in this ruling.

THE MOTION FILED BY BMI

After the Motion was filed, the parties entered into various joint stipulations to seal certain documents. However, the exhibits at issue in the Motion are not within the scope of any of the stipulations entered into between the parties and granted by the Court.

Once again, the Court reminds the parties that they could have filed a stipulation addressing the relief at issue in the Motion. Such stipulation would have reduced the necessity of a hearing on an unopposed motion.

The Court GRANTS the Motion as it is unopposed CONDITIONED on BMI providing the Court with a filed proof of service as to the Motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

BMI is ordered to give notice of this ruling as to the Motion to all interested parties.

DEMURRER FILED BY CLW

The demurrer filed by CLW as to the first and second causes of action in the 2d Case Complaint is SUSTAINED with 20 days leave to amend under Sexton and Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 CONDITIONED on CLW providing the Court with a filed proof of service as to the demurrer.

CLW is ordered to give notice of this ruling as to its demurrer to all interested parties.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 18th day of March 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: November 05, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, etc., et al.,

Defendants.

CASE NO.: BC662838

ORDER RE: AMENDED APPLICATIONS TO BE ADMITTED AS COUNSEL PRO HAC VICE

Date: November 5, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Neil G. Nandi (“Nandi”) and Jason P. Stiehl (“Stiehl”)

Nandi and Stiehl filed separate amended applications to appear as counsel pro hac vice on behalf of Plaintiff and Cross-Defendant Don Lee Farms (“DLF”).

APPLICATION OF NANDI

The pro hac vice application of Nandi is compliant with California Rules of Court, Rule 9.40.

The Court GRANTS the pro hac vice application of Nandi as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

APPLICATION OF STIEHL

The pro hac vice application of Stiehl is compliant with California Rules of Court, Rule 9.40.

The Court GRANTS the pro hac vice application of Stiehl as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

DLF is ordered to give notice of this ruling its entirety.

Dated this 5th day of November 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: November 02, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION TO SEAL

Date: November 2, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

BMI filed a motion (the “Motion”) for an order sealing the unredacted version of BMI’s reply in further support of its motion for sanctions. Plaintiff and Cross-Defendant Don Lee Farms (“DLF”) and Cross-Defendants Donald Goodman and Daniel Goodman filed a notice of non-opposition to the Motion.

The Court reminds the parties that the parties could have filed a stipulation to the relief at issue in the Motion. Such stipulation would have reduced the necessity of a hearing on an unopposed motion.

The Court GRANTS the Motion as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 2nd day of November 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: October 29, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION TO SEAL

Date: October 29, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”)

RESPONDING PARTY: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

DLF filed the operative Third Amended Complaint (“TAC”) which arises from an alleged breach of an exclusive supply agreement and alleges causes of action for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets; (4) money owed and due—common count; (5) violation of California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud; and (10) negligent misrepresentation.

On August 11, 2020, BMI filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants alleging the following causes of action: (1) violation of the California Uniform Trade Secrets Act; (2) breach of contract—supply agreement; (3) breach of contract—NDA; (4) negligent supervision; (5) fraud; (6) negligent misrepresentation; (7) breach of the covenant of good faith and fair dealing; (8) trademark infringement/false designation of origin; (9) unfair competition; and (10) conversion.

The Current Motion

BMI filed a motion to seal portions of the unredacted version of Jessica Quetsch’s Opposition to DLF’s motion for sanctions pursuant to California Code of Civil Procedure, Section 128.7 (the “Motion”)[1], which describes and quotes from testimony from her deposition and exhibits which were designated “Confidential” under the Court’s Protective Order. The Motion asserts that these documents are subject to sealing under Rules 2.550 and 2.551 of the California Rules of Court as they contain confidential and commercially-sensitive information about BMI’s business.

DLF opposes the Motion on the ground that BMI failed to present facts to support sealing the record.

DISCUSSION

Subject to certain exceptions, a court record must not be filed under seal without a court order. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486.) A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Id.) In doing so, the moving party must lodge with the court the record for which the sealing order is sought. The court holds the record conditionally under seal until it rules on the motion or application. (Id. at 486-487.)

In order for records to be sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest. (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) Unless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Court, Rule 2.550(c).) Because court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private. (Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317.)

The Court has reviewed the declarations of Marvin S. Putnam (“Putnam”) and Kelli Wilson[2] (“Wilson”) in support of the Motion. The Court finds that BMI has not presented a declaration setting forth sufficient facts pursuant to Overstock to justify its Motion. The declarations in support of the Motion fails to support: (1) whether there exists an overriding interest supporting closure and/or sealing; and (2) whether absent sealing BMI will suffer any prejudice. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) BMI has not met its burden to support its Motion.

Therefore, the Court DENIES without prejudice the Motion of BMI.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 29th day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Motion has a reservation identification number of 968220532744. The Court sets forth the reservation identification number due to the numerous motions to seal that have been filed in this action.

[2] BMI directs the Court to the declaration of Wilson in support of the motion to seal BMI’s motion for sanctions filed on August 25, 2020.

Case Number: BC662838    Hearing Date: October 07, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, etc., et al.,

Defendants.

CASE NO.: BC662838

[TENTATIVE] ORDER RE: APPLICATIONS TO BE ADMITTED AS COUNSEL PRO HAC VICE

Date: October 7, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Neil G. Nandi (“Nandi”) and Jason P. Stiehl (“Stiehl”)

Nandi and Stiehl filed separate applications to appear as counsel pro hac vice on behalf of Plaintiff and Cross-Defendant Don Lee Farms (“DLF”).

Neither the pro hac vice application of Nandi nor that of Stiehl is compliant with California Rules of Court, Rule 9.40(d)(2), as the declarations of Nandi and Stiehl do not state when they were admitted to practice before the various courts set forth in their declarations. Because such applications must be served on the State Bar, the fact that there is no opposition by the other parties to this matter does not cure this defect.

In light of this lack of opposition, however, instead of denying the applications outright, the Court CONTINUES the hearing on the applications to November 5, 2020 at 8:30 a.m. in Dept. 56 of this Court, to give Nandi and Stiehl the opportunity to file and serve amended declarations and applications to comply with the requirements of California Rules of Court, Rule 9.40. If each of them files and serves such amended applications and declarations by October 9, 2020, the Court will GRANT the pro hac vice applications of Nandi and Stiehl.

DLF is ordered to give notice of this ruling its entirety.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 7th day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: October 06, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS

Date: October 6, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”)

RESPONDING PARTY: Defendant Jessica Quetsch (“Quetsch”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On January 27, 2020, DLF filed the operative verified Third Amended Complaint (“TAC”) in this case, which arises from Defendants’ alleged breach of an exclusive supply agreement, and alleges claims for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets; (4) money owed and due—common count; (5) violation of California Business and Professions Code, Section 17200, et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud (the only cause of action actually alleged against Quetsch, although it incorporates every previous paragraph of the TAC); and (10) negligent misrepresentation.

On July 6, 2020, Quetsch filed her verified answer to the TAC. In response to paragraphs 12, 14, and 15 of the TAC, Quetsch stated that “[s]he lack[ed] knowledge or information sufficient to form a belief as to the truth of allegations . . . and on that basis, [denied] each and every allegation” in those paragraphs.

The Current Motion

On August 25, 2020, DLF filed a motion for sanctions against Quetsch and her attorneys of record, Marvin S. Putnam and Laura R. Washington and their law firm, Latham & Watkins LLC (collectively, “Counsel”), pursuant to California Code of Civil Procedure, Section 128.7. DLF’s motion is procedurally proper under California Code of Civil Procedure, Section 128.7(c)(1).

Simply because a motion is procedurally proper, however, does not mean that it should have been brought. DLF’s motion is made on the grounds that Quetsch’s denials of paragraphs 12, 14, and 15 of the TAC were not warranted based on the evidence or on her lack of information and belief. DLF moves for sanctions pursuant to California Code of Civil Procedure, Section 128.7: (1) deeming paragraphs 12, 14, and 15 of the TAC to be admitted by Quetsch; and (2) imposing monetary sanctions in the amount of $12,000.00 against Quetsch and her Counsel, jointly and severally.

DLF relies on Quetsch’s deposition testimony to establish that her answers to paragraphs 12, 14, and 15 of the TAC were improper and warrant sanctions.

Quetsch opposes DLF’s motion and asserts that: (1) her denials to paragraphs 12, 14, and 15 are entirely warranted based on the allegations in each respective paragraph; (2) sanctions are not appropriate against her or her attorneys; and (3) DLF should be sanctioned for filing a frivolous motion.

JUDICIAL NOTICE

The Court GRANTS DLF’s request for judicial notice. DLF was not, however, required to request judicial notice of Quetsch’s answer to the TAC, as it is already part of the court file in this action.

DISCUSSION

California Code of Civil Procedure, Section 128.7(b)(4) provides that “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” “[t]he denials of factual contentions are warranted on the evidence or, if specifically so identified, are based on a lack of information or belief.” “Under Code of Civil Procedure section 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) “[T]o obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.” (Id.) “A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit.” (Id.)

In Peake, however, as in all other reported decisions cited by the parties and of which this Court is aware, the moving party was not challenging individual allegations but all claims made by the plaintiff or claimant. Here, the challenge is to the answers of one defendant among five to three paragraphs in a 115 paragraph Third Amended Complaint. To follow the proferred logic of the motion, the individual allegations, or even portions of the individual allegations, as to each individual defendant could be subject to hundreds of individual motions for sanctions as the answers thereto are tested. It is clear to this Court that this is not the intent of Section 128.7. Moreover, as this motion is directed against the answer of only one defendant out of five, the Court cannot ascertain how the granting of this motion would save time at trial or in any dispositive motion, or discourage the filing of frivolous pleadings.

The proper place for the arguments presented in this motion for sanctions would be as a part of the cross-examination at trial of Quetsch or as a small part of a motion for summary adjudication or summary judgment, since even motions for summary adjudication cannot be directed to individual allegations or even individual factual issues. In light of the fact that a hearing date for a motion for summary judgment has been reserved for January 29, 2021 – such that it must be filed, at the latest, within ten days of the hearing on the within motion -- this motion appears to be an inefficient, if not inappropriate, method of dealing with the issues presented.

Because no appellate court has apparently ruled on whether CCP §128.7 can even be used to delete individual paragraphs of an answer, however, the Court will analyze the merits of the motion as if it were an appropriate method of doing so. The Court cautions, however, that it is not inclined to consider multiple sanctions motions of this type, and any future motions made pursuant to Section 128.7 may not receive the same consideration.

Issue No.1: Validity of Quetsch’s Answer

In answering a complaint, “[i]f the defendant has no information or belief upon the subject sufficient to enable him or her to answer an allegation of the complaint, he or she may so state in his or her answer and place his or her denial on that ground.” (Code Civ. Proc. § 431.30(e).) “A defendant, appearing separately, is not required to answer allegations in the complaint which relate solely to other defendants.” (Central Heights Imp. Co. v. Memorial Parks (1940) 40 Cal.App.2d 591, 596.)

A review of paragraphs 12, 14, and 15 in the TAC reveals that none of those paragraphs is specifically directed towards Quetsch; in fact, Quetsch is not even mentioned in those paragraphs. Therefore, under Central Heights, it is doubtful that Quetsch was even required to answer them. The Court also notes that the excerpts of the Quetsch deposition submitted with the motion do not reveal the position Quetsch held in or the authority she had to bind defendant Beyond Meat, to whom the subject allegations were actually addressed.

Quetsch’s Denial of Paragraph 12 of the TAC

Because this motion seeks sanctions against a party and her counsel for allegedly improperly denying for lack of information and belief isolated allegations in a complaint, the Court has made a detailed analysis of those allegations to determine if DLF has specifically proven that the denials thereof are unwarranted.

Paragraph 12 of the TAC alleges: “By early 2016, DLF expressed to Beyond Meat that it had significant concerns regarding Beyond Meat’s food safety protocols, arising from Beyond Meat’s provision of ingredients to DLF.”

The Court has reviewed the portions of the Quetsch deposition testimony cited by DLF and the other evidence provided by DLF with its motion, and finds that Quetsch’s denial of the allegations contained in this paragraph has not been shown to be false. Quetsch testified that DLF had “quality” concerns, but she could not recall what such concerns were. (Hussain Decl., Exhibit B at 142:19-143:12.) Since paragraph 12 alleges that DLF had expressed “significant concerns regarding Beyond Meat’s food safety protocols, arising from Beyond Meat’s provision of ingredients to DLF” (emphasis added), Quetsch’s testimony, that she did not recall what the specific concerns were, supports the answer that she lacks sufficient information and belief to respond to this specific allegation.

Moreover, while DLF relies on an e-mail purportedly received by Quetsch for the proposition that Quetsch was aware of food safety protocol concerns (Hussain Decl. at Exhibit C), Quetsch was not a party to the original e-mail and the deposition testimony upon which DLF relies does not establish that Quetsch actually contemporaneously received or reviewed the e-mail ostensibly sent by Tony Miller to her to which the original e-mail was attached; it only establishes that she reviewed it to prepare for her deposition. (Id., Exhibit B at 59:17-60:14.)

Therefore, the Court finds DLF has not established that it was inappropriate for Quetsch to respond that she lacks information or knowledge sufficient to form a belief as to the allegations in paragraph 12 of the TAC.

Quetsch’s Denial of Paragraph 14 of the TAC

Paragraph 14 of the TAC alleges: “Beyond Meat thereafter retained a third-party food safety consultant to perform an audit of Beyond Meat’s manufacturing facility. Upon the third-party’s completion of its inspection, it issued a report to Beyond Meat citing various concerns.” While Quetsch did testify at her deposition that an entity called “The Acheson Group” (“TAG”) was retained to perform an audit (Hussain Decl., Exhibit B at 132:5-133:19, 136:9-20, 138:10-14, 139:8-15), nothing in the proferred testimony establishes either that TAG was a “third-party food safety consultant” or that it was to audit “Beyond Meat’s manufacturing facility” as opposed to being retained to “conduct a facility assessment [consisting of of] two separate assessments, one that was for production related to DLF, and one for everything else.” (Hussain Decl., Exh. B, p. 139, ll. 12-15.) The Court does find that Quetsch in her deposition testified to her awareness that TAG issued a report to Beyond Meat citing “various concerns;” however, this is only a small portion of the entire paragraph that is the subject of Quetsch’s answer which this motion seeks to strike.

DLF has not established that Quetsch had no valid basis for denying the entirety of paragraph 14 of the TAC. The Court declines to sanction Quetsch by surgically excising a portion of her answer to one allegation in the TAC.

Quetsch’s Denial of Paragraph 15 of the TAC

Paragraph 15 of the TAC alleges: “Beyond Meat altered the report by, among other things, deleting significant provisions of it. The altered report was ultimately delivered to DLF to assuage its food safety concerns. Based on the altered report, DLF agreed to enter into the First Amendment to the Exclusive Supply Agreement, which significantly increased the scope of operations under the agreement and DLF’s commitment to Beyond Meat.”

This paragraph contains a number of allegations, some of which could not have been admitted by Quetsch and others which were not addressed by the portions of the Quetsch deposition designated by DLF. For although Quetsch testified that the original report by TAG was altered, the offered testimony did not establish that “significant portions” of the report were deleted, or that “other things” were done to the report to alter it. Moreover, the designated portions of the Quetsch deposition did not specifically state that the “altered report was ultimately delivered to DLF,” they only state: “I’m sure I said that we were going to send him a report.” (Hussain Decl., Ex. B, p. 150:10-11.) As to the allegation beginning “Based on the altered report,” it asserts as a fact a matter that Quetsch had no way of actually knowing, as it relates to another party’s motivation. The portions of her testimony cited by DLF to the contrary are mere speculation. (Hussain Decl., Ex. B., p. 176:1–177:23.)

Therefore, this Court finds no basis to strike Quetsch’s answer to the entire paragraph as requested by the motion, and the Court will not impose sanctions against Quetsch based on her denial of paragraph 15 of the TAC. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421.)

Summary of Ruling on Motion

“The purpose of section 128.7 is to deter frivolous filings.” (Kojababian, supra, at 421.) The Court does not find Quetsch’s answer in its entirety to be a frivolous filing under California Code of Civil Procedure, Section 128.7, as DLF only takes issue with three paragraphs therein. In addition, the Court finds that the portions of Quetsch’s answer with which DLF takes issue are not objectively unreasonable or indisputably without merit.

In sum, the Court will not sanction Quetsch or her Counsel based on Quetsch’s answer to the TAC.

Issue No.2: Monetary Sanctions

Quetsch requests sanctions in the amount of $18,985.00 against DLF for its frivolous motion.

A court is empowered to award a prevailing party its “reasonable expenses and attorney’s fees incurred in presenting or opposing [a] motion” for sanctions. (Code Civ. Proc. § 128.7(c)(1).) The Court finds that DLF had no reasonable grounds to believe that a motion for sanctions under Section 128.7 could be addressed to a few selected portions of a verified answer, and that even if the motion were allowed that the evidence presented supported the requested relief.

Quetsch provides the declaration of her counsel, Laura R. Washington (“Washington”) who sets forth: (1) the hourly rates and tasks completed with respect to the opposition (Washington Decl. at ¶ 6); and (2) that the total attorneys’ fees and expenses incurred by Quetsch in connection with the opposition is $18,895.00. (Id.)

The Court does find that DLF’s motion for sanctions is frivolous, in that there was no legal or factual basis for filing it. The Court therefore exercises its discretion and GRANTS Quetsch’s request for sanctions against DLF, but it only AWARDS Quetsch monetary sanctions in the reasonable amount of $1,500.00. Sanctions are to be paid by DLF to Quetsch within 20 days of the date of this order.

The Court suggests to the parties, who have within the space of nine days presented this Court with two sanctions motions, both of which this Court has found unwarranted, and both of which have resulted in sanctions being granted against the moving party, that they should all exercise more restraint in filing such motions in the future.

DLF’s motion for sanctions is DENIED in its entirety.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 6th day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: September 29, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION TO SEAL

Date: September 29, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

On August 25, 2020, BMI filed a motion for an order sealing certain documents[1] that have been lodged conditionally under seal in support of BMI’s motion for sanctions. BMI requests that such documents remain sealed.

On September 19, 2020, Plaintiff and Cross-Defendant Don Lee Farms (“DLF”), and Cross-Defendants Daniel Goodman and Donald Goodman (the “Goodmans”) filed a notice of non-opposition to BMI’s motion.

Due to the lack of opposition, the Court GRANTS BMI’s motion for an order sealing certain documents that have been lodged conditionally under seal in support of its motion for sanctions. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The Court reminds the parties that they may stipulate to the entry of orders upon which they agree, thus avoiding the necessity of filing a motion as to which there is no opposition.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 29th day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Such documents are set forth in BMI’s notice of motion in connection with BMI’s motion to seal.

Case Number: BC662838    Hearing Date: September 28, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS

Date: September 28, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”)

RESPONDING PARTIES: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”); Cross-Defendants Daniel Goodman and Donald Goodman (the “Goodmans”); and Loeb & Loeb LLP (for purposes of clarity, the Court will refer to the responding parties as “Opposing Parties” where necessary)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On May 25, 2017, DLF filed a complaint arising from an alleged breach of an exclusive supply agreement, alleging causes of action against Defendants for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets pursuant to California Code of Civil Procedure, Section 3426 et seq.; (4) money owed and due—common count; and (5) violation of California Business and Professions Code, Section 17200 et seq.

On July 27, 2017, BMI filed a cross-complaint against Cross-Defendants alleging the following causes of action: (1) breach of contract; (2) unfair competition under California Business and Professions Code, Section 17200 et seq.; and (3) conversion.

BMI filed a demurrer to the second through fifth causes of action in the complaint. BMI also filed a motion to strike portions of the complaint. On August 10, 2017, the Court overruled the demurrer of BMI and denied BMI’s motion to strike.

On November 9, 2018, DLF filed a First Amended Complaint (“FAC”) alleging the following causes of action: (1) breach of contract; (2) declaratory relief; (3) misappropriation of trade secrets; (4) money owed and due; (5) unfair competition under California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; and (8) negligent interference with prospective economic advantage.

On March 11, 2019, DLF filed a Second Amended Complaint (“SAC”) alleging the following causes of action against Defendants: (1) breach of contract; (2) declaratory relief; (3) misappropriation of trade secrets; (4) money owed and due; (5) unfair competition under California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud; and (10) negligent misrepresentation.

On April 12, 2019, BMI filed a demurrer to the ninth and tenth causes of action in the SAC. On May 30, 2019, the Court overruled the demurrer of BMI with respect to the SAC.

On December 31, 2019, DLF filed a motion for leave to file a Third Amended Complaint (“TAC”). On January 21, 2020, the Court granted DLF’s motion for leave to file a TAC.

The Current Operative Pleadings

DLF filed the operative TAC which arises from an alleged breach of an exclusive supply agreement. DLF filed the TAC against Defendants alleging causes of action for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets; (4) money owed and due—common count; (5) violation of California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud; and (10) negligent misrepresentation.

On August 11, 2020, BMI filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants alleging the following causes of action: (1) violation of the California Uniform Trade Secrets Act; (2) breach of contract—supply agreement; (3) breach of contract—NDA; (4) negligent supervision; (5) fraud; (6) negligent misrepresentation; (7) breach of the covenant of good faith and fair dealing; (8) trademark infringement/false designation of origin; (9) unfair competition; and (10) conversion.

In part, the FAXC alleges that: (1) BMI provided DLF with a Site Assessment Report in February of 2016, which was strictly confidential under the parties’ Non-Disclosure Agreement (“NDA”) (FAXC at ¶ 163); (2) the parties entered into the NDA, under which DLF is prohibited from using any confidential information or disclosing that information to any third party without the consent of BMI (Id. at ¶ 160); (3) despite the supply agreement between the parties being terminated on May 23, 2017, DLF continued to be prohibited from disclosing BMI’s confidential information—including the Site Assessment Report—to any third party without the consent of BMI (Id. at ¶ 164); (4) despite such obligation, on April 29, 2019, Daniel Goodman—acting on behalf of DLF—sent an e-mail containing the confidential Site Assessment Report to a reporter at Bloomberg News, and blind copied his father, Donald Goodman, on the e-mail (Id. at ¶ 165); and (5) Bloomberg News is a third party to whom disclosure was prohibited without prior written consent. (Id.)

The Protective Order

On October 11, 2017, the parties entered into a stipulation and protective order which was approved by the Court. The protective order states that: (1) the protective order applies to documents which have been produced during discovery in this proceeding, which includes any copies, reproductions, or summaries of such documents (Protective Order at 3:4-7); (2) a party could designate as confidential any documents, testimony, or information that the designating party in good faith believed contained non-public information that is entitled to confidential treatment under applicable law (Id. at 3:11-13); (3) confidential material could only accessed by or be disclosed to certain parties such as the Court, attorneys of record, and outside experts (Id. at 6:6-7:24); and (4) any person outside the scope of the disclosable parties with respect to confidential information must be agreed to by the Designating Party. (Id. at 7:25.) The protective order indicated that for documents to come within the scope of the protective order, the Designating Party “must affix the legend Confidential or Highly Confidential on each page of any Document containing such designated Confidential or Highly Confidential material.” (Id. at 3:27-4:3.) The protective order also states that “Confidential Materials and Highly Confidential Materials shall be used by the persons or entities receiving them only for the purposes of preparing for, conducting, participating, in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever.” (Id. at 8:1-4.)

The Current Motion

On August 25, 2020, BMI filed a motion for sanctions against DLF, Donald Goodman, Daniel Goodman, and Loeb & Loeb LLP. BMI’s motion for sanctions is brought on the grounds that the aforementioned parties intentionally violated the Court’s October 11, 2017 protective order. Specifically, BMI contends that, on April 29, 2019, the management of DLF leaked a confidential Site Assessment Report to Bloomberg News. BMI asserts that the disclosure of the Site Assessment Report occurred at a time when DLF knew that BMI’s motion to maintain the confidentiality of the Site Assessment Report was still pending.

BMI seeks both evidentiary and monetary sanctions. With respect to evidentiary sanctions, BMI requests that DLF and the Goodmans be prohibited from introducing the confidential Site Assessment Report in this litigation including, but not limited to, at trial.

Opposing Parties contend that: (1) the Site Assessment Report at issue was provided to DLF outside of this litigation and as such is a DLF business record which is not subject to the protective order; (2) BMI misrepresents its own exhibits to manufacture a non-existent attempted “cover-up”; and (3) sanctions are not warranted against Opposing Parties.

The parties do not dispute that: (1) DLF was provided with the Site Assessment Report at issue prior to the commencement of this litigation; (2) BMI later designated the Site Assessment Report as “confidential” pursuant to the parties’ protective order; and (3) DLF provided the Site Assessment Report to Bloomberg News.

Thus, the first issue here is whether the Site Assessment Report is subject to the Court’s protective order. If the Court answers such inquiry in the negative, then Opposing Parties will not be liable for sanctions because they did not violate the terms of the protective order.

Declaration in Support of BMI’s Motion

BMI provides a declaration of its counsel, Christopher Y.L. Yeung (“Yeung”) who sets forth: (1) BMI’s efforts to uphold the confidentiality designation of the Site Assessment Report (Yeung Decl. at ¶¶ 3-10); (2) BMI’s efforts to discover the source of the disclosure of the Site Assessment Report by DLF (Id. at ¶¶ 11-23); (3) DLF’s communications with Bloomberg News (Id. at ¶¶ 24-26 and Exhibits U, V, W, and Z); and (4) the attorneys’ fees incurred by BMI. (Id. at ¶¶ 27-29.)

DISCUSSION

A court has “inherent power to curb abuses and promote fair process[es] [and such power] extends to the preclusion of evidence.” (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288.) A court “has the inherent power to preclude evidence to cure abuses or overreaching involving confidential information.” (Id. at 286-287.) A court can also impose monetary sanctions against a party “engaging in the misuse of the discovery process.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 300.)

Issue No.1: Retroactive Nature of the Protective Order to the Site Assessment Report

Here, it is undisputed that DLF provided the Bloomberg News with the Site Assessment Report. The parties agree, however, that the version provided to the Bloomberg News at issue: (1) was not produced in connection with discovery in this action; (2) did not contain a Bates-stamp number; and (3) was in the possession of DLF prior to the commencement of this litigation.

A court interprets “a stipulation, including a stipulation entered as a court order, in accordance with the ordinary rules of contract interpretation.” (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 694.) “We interpret a contract so as to give effect to the mutual intention at the time the contract was formed.” (Id. at 695.) “We ascertain that intention solely from the written contract if possible, but also consider the circumstances under which the contract was made and the matter to which it relates.” (Id.) “If contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs.” (Id.) “In construing a contract, it is not a court’s prerogative to alter it, to rewrite its clear terms, or to make a new contract for the parties.” (Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9.) “Courts will not add a term to a contract about which the agreement is silent.” (Id.) “[A] protective order prevents a party from disseminating only that information obtained through use of the discovery process.” (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34.) A “party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.” (Id.)

After a review of the protective order and reference to pertinent terms of the protective order articulated above, the Court finds that the protective order by its explicit terms does not apply to documents obtained prior to discovery in this action. The protective order only applies to documents produced in discovery in this action. While the Site Assessment Report was produced by BMI in discovery, the Site Assessment Report that DLF provided to Bloomberg News was the Site Assessment Report obtained by DLF prior to the initiation of this litigation. The Site Assessment Report disclosed to Bloomberg News was not the Bates-stamped version of such report produced in discovery. The Court will not add terms to the protective order that are not present therein. BMI has not provided the Court with legal authority that a protective order has a retroactive effect to documents obtained prior to the initiation of litigation.

While not binding authority and not cited by the parties, the Court finds that a discussion of Biosearch is persuasive[1] on the issue presented in connection with BMI’s motion for sanctions. (Life Technologies Corp. v. Biosearch Technologies, Inc. (N.D. Cal. 2012) 2012 WL 1600393.) In Biosearch, plaintiff asserted that a protective order applied to all documents submitted in the action, including documents produced prior to the entry of the protective order. (Id. at *13.) In rejecting plaintiff’s argument, the Biosearch court stated that “even though the order may apply retroactively to all documents produced, it does not necessarily apply to disclosures of those documents made prior to the entry of the protective order.” (Id. at *14.) Further, the Biosearch court stated that the protective order was “silent as to retroactive effect and the language in the order is, at best, ambiguous on the question.” (Id.)

Here, the protective order is silent on the issue of the retroactive nature of the protective order. The protective order does not bar DLF from disseminating purportedly confidential information obtained prior to the commencement of this action. DLF obtained the Site Assessment Report in a manner not connected with the instant proceedings.

Therefore, the Court finds that DLF did not violate the Court’s protective order by disclosing the Site Assessment Report, such that the basis for BMI’s motion for sanctions fails. The Court therefore DENIES BMI’s request for monetary sanctions or declines to impose the evidentiary sanctions requested.

Issue No.2: Improper Notice of Sanctions

“A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.)

While not raised by Opposing Parties in their opposition brief, the Court finds that BMI’s notice of motion is deficient. The notice of motion merely states that BMI “does move for an order imposing sanctions against [Opposing Parties] . . . for intentionally violating the Protective Order entered by the Court on October 11, 2017.” (Notice at 2:5-9.) Thus, the notice of motion does not state exactly which type of sanction is being sought pursuant to the motion. The notice of motion is deficient under Sole Energy.

Issue No.3: Opposing Parties’ Request for Monetary Sanctions

Opposing Parties request that they be awarded their costs to defend against BMI’s motion for sanctions in the amount of $20,850.00.

In connection with a motion for sanctions “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” (Code Civ. Proc. § 128.5(f)(1)(C).

In connection with the opposition, Opposing Parties present the declaration of Safia Garay Hussain (“Hussain”), who sets forth that: (1) DLF and the Goodmans have incurred at least $20,850.00 in attorneys’ fees from Loeb & Loeb LLP in drafting the opposition to the motion for sanctions filed by BMI (Hussain Decl. at ¶ 17); (2) she spent 27.8 hours personally researching and preparing the opposition brief and accompanying papers (Id.); and (3) her billing rate for this matter is $750.00 per hour. (Id.)

The Court GRANTS DLF’s and the Goodmans’ request for sanctions and awards DLF and the Goodmans reasonable monetary sanctions in the amount of $1,500.00 against BMI. BMI is to pay sanctions to DLF and the Goodmans within 20 days of the date of this order.

The Court DENIES BMI’s motion for sanctions in its entirety.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 28th day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Unpublished federal court cases are not binding authority but may be cited as persuasive authority. (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn.6.)

Case Number: BC662838    Hearing Date: July 02, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: BC662838

[TENTATIVE] ORDER RE: MOTIONS TO UNSEAL DISCOVERY REFEREE’S REPORT AND RECOMMENDATIONS

Date: July 2, 2020

Time: 8:30 a.m.

Dept. 56

FSC: June 2, 2021

Jury Trial: June 14, 2021

MOVING PARTY: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”)

The Court has considered the moving papers. No opposition papers were filed with the Court. Any opposition papers were required to be filed and served at least nine court days prior to the hearing pursuant to California Code of Civil Procedure, Section 1005(b).

BACKGROUND

Plaintiff filed the operative Third Amended Complaint (“TAC”) which arises from an alleged breach of an exclusive supply agreement. Plaintiff filed the TAC against Defendants alleging causes of action for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets; (4) money owed and due—common count; (5) violation of California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud; and (10) negligent misrepresentation.

The Instant Motions

DLF filed a motion for an order unsealing the discovery referee’s report and recommendations regarding Beyond Meat, Inc.’s (“BMI”) motion for a protective order regarding requests for production of documents issued by Judge Robert C. Bonner (Ret.), the assigned discovery referee in this matter, served on DLF and BMI on or about October 14, 2019 and believed to have been filed with this Court on or around the same day.

DLF also filed a motion for an order unsealing the discovery referee’s report and recommendations regarding DLF’s motion to de-designate or, alternatively, require re-designation of documents, issued by Judge Robert C. Bonner (Ret.), the assigned discovery referee in this matter, served on DLF and defendant, cross-complainant, and cross-defendant BMI on or about June 27, 2019, and believed to have been filed with this Court on or around August 21, 2019.

Both of the motions filed by DLF are unopposed. Due to the lack of opposition to the motions filed by DLF, the Court GRANTS both motions filed by DLF. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 2nd day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC662838    Hearing Date: June 23, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, etc.,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTION

CASE NO.: BC662838

[TENTATIVE] ORDER RE: DEMURRER TO THIRD AMENDED COMPLAINT; MOTION TO SEAL; MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

Date: June 23, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendant and Cross-Complainant Beyond Meat, Inc. (“BMI”); Defendants Mark Nelson, Jessica Quetsch, and Anthony Miller

RESPONDING PARTY: Plaintiff Don Lee Farms

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed the operative Third Amended Complaint (“TAC”) which arises from an alleged breach of an exclusive supply agreement. Plaintiff filed the TAC against Defendants alleging causes of action for: (1) breach of contract; (2) declaratory relief—termination rights; (3) misappropriation of trade secrets; (4) money owed and due—common count; (5) violation of California Business and Professions Code, Section 17200 et seq.; (6) tortious interference with contract; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) fraud; and (10) negligent misrepresentation.

The Instant Motions

Defendants filed a demurrer to the ninth and tenth causes of action in the TAC. Defendants contend that the ninth and tenth causes of action in the TAC are not pled with the required specificity and as such each fails to constitute a cause of action. Defendants’ demurrer, however, was not filed with an accompanying proof of service. Defendants are to bring a filed proof of service to the hearing and the Court will discuss the effect, if any, the filed proof of service has on the Court’s ruling. Plaintiff opposes Defendants’ demurrer on the grounds that its fraud and negligent misrepresentation claims are well pled.

BMI filed a motion for an order sealing portions of: (1) excerpts from the transcript of the October 10, 2019 deposition of Jessica Quetsch (“Quetsch”) which is designated “highly confidential” under the Court’s protective order; (2) Plaintiff’s reply memorandum in support of its motion for leave to file its third amended complaint which contains descriptions of the information from the deposition of Quetsch; and (3) the supplemental declaration of Daniel A. Platt, which references and attaches the transcript of Quetsch’s deposition (collectively, the “Confidential Materials”).

Plaintiff also filed a motion for leave to file a Fourth Amended Complaint.

The Court will address all the parties’ respective motions in this one ruling.

MEET AND CONFER

The meet and confer requirement has been met.

DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) “[T]he essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “Those recitals, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty.” (Id.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.)

Issue No. 1: Ninth Cause of Action

To state a cause of action for fraud, a plaintiff must plead “(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1452-1453.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “[T]he policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Id.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.) “A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Id.) “[C]ertain exceptions . . . mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, emphasis added.) “[E]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.” (Id.) “Reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) “[T]he question of whether a plaintiff’s reliance is reasonable is a question of fact.” (Id.) With respect to pleading damages in a complaint in connection with a fraud cause of action “the specific dollar amount is necessary only when a default judgment is to be entered.” (Furia v. Helm (2003) 111 Cal.App.4th 945, 957.) “[T]he absence of a specific amount from the complaint is not necessarily fatal as long as the pleaded facts entitle the plaintiff to relief." (Id.)

The Court finds that Plaintiff has stated a cause of action for fraud and has pled each element to state a fraud cause of action sufficiently. Plaintiff need not allege a specific amount of damages and Plaintiff’s allegation that it “has suffered and continues to suffer damages, and Beyond Meat has been unjustly enriched in an amount proven at trial as a direct result of its interference” (TAC at ¶ 109) is sufficient under Furia. From the allegations of the TAC, it appears that Defendants have more knowledge of the controversy under General Foods and as such less particularity is required.

Defendants’ demurrer to the ninth cause of action in the TAC is OVERRULED.

Issue No.2: Tenth Cause of Action

“The elements of negligent misrepresentation are well established.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154.) “[M]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.” (Id.) A cause of action for negligent misrepresentation must be pled with particularity. (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 155.) “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter.” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454.) “[I]n a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Id.) “Like any other element of fraud or negligent misrepresentation, damage causation must be pled specifically; general and conclusory allegations do not suffice.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 202.) “Negligent misrepresentation is a species of fraud.” (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 306.)

The Court finds that Plaintiff has stated a cause of action for negligent misrepresentation. (TAC at ¶ 110-115.)

Defendants’ demurrer to the tenth cause of action in the TAC is OVERRULED.

Defendants are ordered to give notice of this ruling with respect to the demurrer to the TAC.

MOTION TO SEAL

BMI asserts that the Confidential Materials at issue with respect to its motion to seal concern detailed testimony from Quetsch about a confidential site assessment report auditing certain manufacturing processes at one of BMI’s production facilities (the “Site Report”). BMI contends that the discovery referee has already held that the Site Report was properly designated as confidential due to it containing commercially sensitive information about the development of BMI products.

Plaintiff opposes BMI’s motion to seal and asserts that: (1) BMI’s motion to seal should be denied as untimely; and (2) BMI has failed to present facts to support sealing the record. The Court agrees with Plaintiff that BMI has not presented facts to support sealing the Confidential Materials.

Legal Standard

“[S]ubject to certain exceptions . . . a court record must not be filed under seal without a court order.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486.) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Id, emphasis added.) “In doing so, the moving party must lodge with the court the record for which the sealing order is sought. The court holds the record conditionally under seal until it rules on the motion or application.” (Id. at 486-487.)

In order for records to be sealed, “a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, Rule 2.550(c).) “Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private.” (Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317.)

Issue No.1: Timeliness

Plaintiff contends that BMI’s motion to seal should be denied as untimely. The Court does not find Plaintiff’s argument on this point persuasive.

California Rules of Court, Rule 2.551(b)(3)(B) says that “[i]f the party that produced the documents and was served with the notice under (A)(iii) fails to file a motion or an application to seal the records within 10 days . . . the clerk must promptly transfer all the documents in (A)(i) from the envelope, container, or secure electronic file to the public file. If the party files a motion or application to seal within 10 days . . . these documents are to remain conditionally under seal until the court rules on the motion or application and thereafter are to be filed as ordered by the court.” There is a “a 10-day time frame (subject to extension of time by court order) for bringing a motion to seal.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 601.) “[T]he accountability of reasonable time frame for bringing such motions” is so that “the presumptive openness of court records [is not] subject to the whim of the parties, without regard to the public.” (Id.) California Code of Civil Procedure, Section 1010.6(a)(4)(B) says that “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of a document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”

Here, it is undisputed that on January 16, 2020, BMI was served with Plaintiff’s reply in support of its motion for leave to file its third amended complaint via electronic transmission. This filing contains the Confidential Materials at issue with respect to BMI’s motion to seal. BMI filed its motion to seal on January 28, 2020.

Therefore, the Court finds that BMI’s motion to seal is timely pursuant to California Code of Civil Procedure, Section 1010.6(a)(4)(B).

Issue No. 2: Presentation of Facts Sufficient to Support Sealing the Record

According to the declaration of BMI’s counsel, Marvin S. Putnam (“Putnam”) relevantly declares that: (1) BMI’s proposed sealing is narrow as it can be without disclosing the confidential and non-public contents of the Confidential Materials (Putnam Decl. at ¶ 4); and (2) Plaintiff conditionally lodged unredacted versions of the Confidential Materials with the Court and filed a redacted version for the public record on January 16, 2020. (Id.)

The Court finds that BMI has not presented a declaration setting forth sufficient facts pursuant to Overstock to justify its motion to seal. The declaration of Putnam accompanying the moving papers is void of any mention of: (1) whether there exists an overriding interest supporting closure and/or sealing; (2) whether absent sealing BMI will suffer any prejudice; and (3) whether there is no less restrictive means of achieving the overriding interest. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) BMI has not met its burden under Mary R. to support its motion to seal.

Therefore, the Court DENIES WITHOUT PREJUDICE BMI’s motion to seal.

BMI is ordered to give notice of this ruling with respect to the motion to seal.

MOTION FOR LEAVE TO AMEND

Plaintiff filed a motion for leave to file its proposed Fourth Amended Complaint on the grounds that Defendants will suffer no conceivable prejudice by virtue of the proposed amendment, and it would constitute an abuse of discretion to deny Plaintiff’s motion for leave to amend. Plaintiff seeks to add one of its competitors, CLW Foods, LLC (“CLW”), to its trade secret and unfair competition claims. Defendant Proportion Foods, LLC (“PFL”) opposes Plaintiff’s motion for leave to amend.

Issue No.1: Procedural Non-Compliance

California Rules of Court, Rule 3.1324 sets forth the necessary requirements with respect to a motion to amend a pleading. California Rules of Court, Rule 3.1324(b) states that a separate declaration must accompany the motion for leave to amend and such declaration must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

In connection with the moving papers, Plaintiff presents the declaration of its counsel, Daniel Platt (“Platt”). The declaration of Platt does not indicate: (1) when the facts giving rise to the amended allegations were discovered; and (2) the reasons why the request for amendment was not made sooner.

The Court finds that Plaintiff has failed to comply with the mandatory requirements set forth in California Rules of Court, Rule 3.1324.

Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion for leave to file a Fourth Amended Complaint.

Plaintiff is ordered to give notice of this ruling with respect to its motion for leave to amend to file a Fourth Amended Complaint.

In consideration of the current COVIC-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of June 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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