This case was last updated from Los Angeles County Superior Courts on 12/03/2021 at 08:51:23 (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

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Plaintiffs and Cross Defendants

DON LEE FARMS

DON LEE FARMS A DIVISION OF GOODMAN FOOD PRODUCTS INC.

Cross Defendants and Defendants

PROPORTION FOODS LLC

BEYOND MEAT INC.

CLW FOODS LLC A CALIFORNIA LIMITED LIABILITY COMPANY

DON LEE FARMS

BEYOND MEAT INC. A DELAWARE CORPORATION

GOODMAN BRANDON

GOODMAN DANIEL

GOODMAN DONALD

GOODMAN PRODUCTS INC.

Cross Plaintiff and Defendant

BEYOND MEAT INC.

Not Classified By Court

BONNER ROBERT C.

Attorney/Law Firm Details

Plaintiff Attorneys

CATALANO ROBERT J.

DILLARD JOHN G.

LEE EDWARD K.

Defendant Attorneys

BAUCH JIM DAVIS

COELHO II GARY

Cross Defendant Attorneys

MAZZIA CHRISTOPHER M.

PLATT DANIEL ADAM

 

Court Documents

Proof of Service (not Summons and Complaint)

11/14/2019: Proof of Service (not Summons and Complaint)

Notice - NOTICE OF HEARING ON MTC

11/14/2019: Notice - NOTICE OF HEARING ON MTC

Proof of Service (not Summons and Complaint)

11/14/2019: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION TO BEYOND MEAT, INC.'S MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION NO. 65

11/27/2019: Opposition - OPPOSITION TO BEYOND MEAT, INC.'S MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION NO. 65

Opposition - OPPOSITION TO BEYOND MEAT INC.'S SEPARATE STATEMENT

11/27/2019: Opposition - OPPOSITION TO BEYOND MEAT INC.'S SEPARATE STATEMENT

Proof of Service (not Summons and Complaint)

12/3/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

12/3/2019: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

12/4/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE WRIT OF ATTACHMENT HEARING

12/4/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE WRIT OF ATTACHMENT HEARING

Proof of Service (not Summons and Complaint)

12/5/2019: Proof of Service (not Summons and Complaint)

Notice - NOTICE OF WITHDRAWAL OF MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION NO. 65

12/5/2019: Notice - NOTICE OF WITHDRAWAL OF MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION NO. 65

Proof of Service (not Summons and Complaint)

12/5/2019: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION REDACTED OPPOSITION TO WRIT OF ATTACHMENT

12/11/2019: Opposition - OPPOSITION REDACTED OPPOSITION TO WRIT OF ATTACHMENT

Declaration - DECLARATION REDACTED DECLARATION OF KELLI WILSON ISO OPPOSITION TO WRIT OF ATTACHMENT

12/11/2019: Declaration - DECLARATION REDACTED DECLARATION OF KELLI WILSON ISO OPPOSITION TO WRIT OF ATTACHMENT

Declaration - DECLARATION OF CHRISTOPHER YEUNG ISO OPPOSITION TO WRIT OF ATTACHMENT

12/11/2019: Declaration - DECLARATION OF CHRISTOPHER YEUNG ISO OPPOSITION TO WRIT OF ATTACHMENT

Declaration - DECLARATION OF GARY SCHULTZ ISO OPPOSITION TO WRIT OF ATTACHMENT

12/11/2019: Declaration - DECLARATION OF GARY SCHULTZ ISO OPPOSITION TO WRIT OF ATTACHMENT

Proof of Service (not Summons and Complaint)

12/11/2019: Proof of Service (not Summons and Complaint)

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING DOCUMENTS UNDER SEAL WITH OPPOSITION TO WRIT OF ATTACHMENT

12/11/2019: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING DOCUMENTS UNDER SEAL WITH OPPOSITION TO WRIT OF ATTACHMENT

1,002 More Documents Available

 

Docket Entries

  • 05/16/2022
  • Hearing05/16/2022 at 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/02/2022
  • Hearing05/02/2022 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/30/2021
  • DocketStipulation and Order (Joint Stipulation to Seal Documents Lodged in Support of Plaintiff-Cross-Defendant Don Lee Farms' Notice of Motion and Motion to Compel Defendant-Cross-Complainant Beyond Meat, Inc. to Provide Further Deposition of a Person Most Qualified; [Proposed]); Filed by Don Lee Farms (Plaintiff); Beyond Meat, Inc. (Defendant)

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  • 11/30/2021
  • DocketStipulation and Order (Joint Stipulation to Seal Documents Lodged in Support of Plaintiff-Cross-Defendant Don Lee Farms and Cross-Defendants Donald, Daniel and Brandon Goodman's Reply in Support of Reply in Support of Motion to Uphold Confidentiality Designations Under the); Filed by Don Lee Farms (Plaintiff)

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  • 11/30/2021
  • DocketStipulation and Order (JOINT STIPULATION TO SEAL ORDER RE REFEREE'S REPORT AND RECOMMENDATIONS RE NON-PARTY ANNE MARIE MCDERMOTT'S MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS OR, ALTERNATIVELY, FOR A PROTECTIVE ORDER; [PROPOSED] ORDER); Filed by Beyond Meat, Inc. (Cross-Complainant); Anne Marie McDermott (Non-Party)

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  • 11/30/2021
  • DocketOrder (ORDER RE: REFEREE'S REPORT AND RECOMMENDATIONS RE NON-PARTY ANNE MARIE MCDERMOTT'S MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS OR, ALTERNATIVELY, FOR A PROTECTIVE ORDER); Filed by Beyond Meat, Inc. (Cross-Complainant); Anne Marie McDermott (Non-Party)

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  • 11/30/2021
  • DocketStipulation and Order (JOINT STIPULATION TO SEAL DOCUMENTS AND TESTIMONY LODGED IN SUPPORT OF DEFENDANT-CROSS-COMPLAINANT BEYOND MEAT, INC.'S MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO BEYOND MEAT'S REQUESTS FOR INSPECTION NOS. 1 AND 2 AND BEYOND MEAT'S REQUESTS F); Filed by Beyond Meat, Inc. (Cross-Complainant)

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  • 11/23/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Beyond Meat, Inc. (Cross-Complainant)

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  • 11/23/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Beyond Meat, Inc. (Cross-Complainant)

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  • 11/23/2021
  • DocketMotion to Compel Further Discovery Responses; Filed by Beyond Meat, Inc. (Cross-Complainant)

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1,242 More Docket Entries
  • 07/27/2017
  • DocketDEFENDANT/CROSS-COMPLAINANT SAVAGE RIVER, INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF/CROSS-DEFENDANT DON LEE FARMS' COMPLAINT

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  • 07/27/2017
  • DocketDEFENDANT/CROSS-COMPLAINANT SAVAGE RIVER, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF/CROSS-DEFENDANT DON LEE FARMS' COMPLAINT

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  • 07/27/2017
  • DocketSAVAGE RIVER, INC.'S CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT; ETC.

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  • 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
  • DocketDECLARATION OF NEEMA T. SAMNI ATTESTING TO PARTIES' MEET AND CONFER RE: DEMURRER TO PLAINTIFF/CROSS-DEFENDANT DON LEE FARMS' COMPLAINT

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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
  • DocketCross-Complaint; Filed by Savage River, Inc. (Cross-Complainant)

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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: ****2838 Hearing Date: July 18, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTION TO EXCLUDE EXPERT TESTIMONY

Date: July 18, 2022

Time: 8:30 a.m.

Dept. 56

Trial Date: September 26, 2022

MOVING PARTIES: Plaintiff/Cross-Defendant Don Lee Farms (“DLF”) and Cross-Defendants Goodman Food Products, Inc., Donald Goodman, Daniel Goodman and Brandon Goodman (collectively, the “DLF Parties”)

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

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

BACKGROUND

This action arises out of the dissolution of the business relationship between BMI and DLF (the “Parties”) and the termination of an agreement pursuant to which DLF manufactured certain of BMI’s plant-based meat substitute food products.

The Parties have alleged various causes of action against each other and intend to present expert testimony to support their claims. DLF filed a motion to exclude the testimony and opinions of BMI’s expert Dr. Rosa Abrantes-Metz (“Dr. Abrantes-Metz”) (the “Motion”).

DISCUSSION

The trial court acts as a gatekeeper to exclude expert opinion testimony that is: (1) based on matter of a type on which an expert may not reasonably rely; (2) based on reasons unsupported by the material on which the expert relies; or (3) speculative. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-72.) Courts must be cautious in excluding expert testimony. (Id. at 772.) The trial court's gatekeeping role does not involve choosing between competing expert opinions. (Id.) The trial court’s focus must be solely on principles and methodology, not on the conclusions that they generate. (Id.)

Under Evidence Code section 801, subdivision (b), expert opinion must be based on reliable matters. Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, his conclusion has no evidentiary value. (Pacific Gas & Electric Co. v. Zuckerman) (1987) 189 Cal.App.3d 1113, 1135.)

BMI intends to offer Dr. Abrantes-Metz’s opinion regarding damages caused by DLF allegedly breaching a nondisclosure agreement (the “NDA”) by providing a site assessment report to the publication Bloomberg News (“Bloomberg”) shortly before BMI’s May 2, 2019 initial public offering (“IPO”). BMI contends that an article published by Bloomberg on May 3, 2019 impacted its market value, and Dr. Abrantes-Metz estimates that BMI has incurred up to $146 million in damages due to DLF’s alleged breach of the NDA. (See Declaration of Martin Brenner (“Brenner Decl.”), Exhibit 15.)

It is not disputed that BMI’s stock valuation rose after the publication of the Bloomberg article. BMI contends, however, that its stock would have risen more had the Bloomberg article not been published. The academic research that suggests that as a result of the proximity of the Bloomberg article’s publication date to the IPO, its impact on BMI’s valuation is not accurately reflected in any immediate changes in BMI’s stock price. (See Declaration of Nathan M. Saper (“Saper Decl.”), Exhibit C at 77:9-78:5; 332:1-9.) As a result, Dr. Abrantes Metz arrived at her estimate by conducting an event study of the impact of shareholder derivative lawsuits filed in 2020 on BMI’s borrowing terms. (Saper Decl. Exhibit C, 296:114-119; 332:1-336:24.)

Among the reasons DLF cites as grounds for excluding Dr. Abrantes-Metz’s opinions are: (1) that her analysis assumes causation, which DLF maintains that BMI cannot establish; and (2) the events she relies on as a proxy for the effect of the Bloomberg article—the effects of the derivative lawsuits—cite information protected by the litigation privilege and do not mention the Bloomberg article.

Civil Code section 47, subdivision (b) provides for an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code 47, subd. (b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) The privilege applies to any communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that has some connection or logical relation to the action. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 964.)

The Court agrees that Dr. Abrantes-Metz’s opinions are based on events that encompass information that is protected by the litigation privilege—documents, press releases, and news articles concerning this litigation. Although the derivative lawsuits cite the allegedly doctored site report, none identifies the Bloomberg article as a source for its claims; instead, they all heavily cite to filings and court decisions in this litigation and news articles reporting filings and court decisions. DLF’s allegations of the allegedly doctored site report predate the Bloomberg article and BMI makes no argument that the Bloomberg article included information that is cited as bases for the derivative lawsuits

In addition to the fact that it is not explicitly clear that the information disclosed in the Bloomberg article specifically factored in to the filing of the derivative lawsuits, Dr. Abrantes-Metz’s conclusions are based on an analysis of the derivative lawsuits as a whole and do not disentangle the weight of the individual bases of the lawsuits to extrapolate an impact attributable to the Bloomberg article. In fact, during her deposition, Dr. Abrantes-Metz testified that disentangling the import of the Bloomberg article from the allegations of the derivative lawsuits in order to isolate its potential damages would not be possible. (See Brenner Declaration, Exhibit 25 at 336:15-18.) As a result, Dr. Abrantes-Metz’s conclusions and valuation of damages are not relevant to the damages that BMI incurred as a result of DLF’s alleged breach of the NDA and the Court finds that her opinion is therefore properly excluded.[1] The Court therefore GRANTS the Motion.

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 July 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] As a result, the Court does not address the remainder of the arguments regarding Dr. Abrantes-Metz’s methodology.



Case Number: ****2838 Hearing Date: July 7, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTIONS TO EXCLUDE EXPERT TESTIMONY

Date: July 7, 2022

Time: 8:30 a.m.

Dept. 56

Trial Date: September 26, 2022

MOVING PARTIES: This order concerns six motions to exclude expert witness testimony (collectively, the “Motions”). Plaintiff/Cross-Defendant Don Lee Farms (“DLF”) filed Motions to exclude the testimony of: (1) Dr. Robert Buchanan (“Dr. Buchanan”) (the “Buchanan Motion”); (2) William R. Ackerman (“Ackerman”) (the “Ackerman Motion”); and (3) Dr. Alyson E. Michell (“Dr. Mitchell”) (the “Mitchell Motion”). Defendant/Cross-Complainant Beyond Meat, Inc. (“BMI”) filed motions to exclude the testimony of: (1) Timothy J. Bowser (“Bowser”) (the “Bowser Motion”); (2) Richard F. Bero (“Bero”) (the “Bero Motion”); and (3) Dr. Virginia Deibel (“Dr. Deibel”) (the “Deibel Motion”).

RESPONDING PARTIES: DLF opposed the Motions filed by BMI and BMI opposed the Motions filed by DLF.

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

BACKGROUND

This action arises out of the dissolution of the business relationship between BMI and DLF (the “Parties”) and the termination of an exclusive supply agreement (the “ESA”) pursuant to which DLF manufactured certain of BMI’s plant-based meat substitute food products.

The Parties have alleged various causes of action against each other and intend to present expert testimony to support their claims. Both Parties filed Motions to exclude the opinions offered by specified expert witnesses.

DISCUSSION

The trial court acts as a gatekeeper to exclude expert opinion testimony that is: (1) based on matter of a type on which an expert may not reasonably rely; (2) based on reasons unsupported by the material on which the expert relies; or (3) speculative. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-72.) Courts must be cautious in excluding expert testimony. (Id. at 772.) The trial court's gatekeeping role does not involve choosing between competing expert opinions. (Id.) The trial court’s focus must be solely on principles and methodology, not on the conclusions that they generate. (Id.)

Under Evidence Code section 801, subdivision (b), expert opinion must be based on reliable matters. Where an expert bases a conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, that conclusion has no evidentiary value. (Pacific Gas & Electric Co. v. Zuckerman) (1987) 189 Cal.App.3d 1113, 1135.)

The Bowser Motion

On August 9, 2021, DLF designated Bowser as a rebuttal expert witness. (Declaration of Nima H. Mohebbi (“Mohebbi Decl.”), Exhibit A.) Bowser is expected to offer testimony regarding: (1) the commercialization of meat and meat substitute products; (2) the technology and use of extrusion and related issues; and (3) potential commentary on, and rebuttal of, any testimony or evidence offered by BMI’s experts. (Id.) BMI seeks to exclude portions of Bowser’s testimony.

BMI deposed Bowser on April 15, 2022. (See Mohebbi Decl. 4, Exhibit B.) During the deposition, Bowser testified that his opinion was directed solely at the declaration of BMI’s trade secret expert, Dr. Alyson Mitchell (“Dr. Mitchell”) filed by BMI in support of its opposition to DLF’s motion for summary judgment. (Id. at 15:1-6.) Bowser testified that he was not then planning to and had not been asked by DLF to testify on matters beyond the nine identified areas of disagreement with Mitchell’s opinion that he identified during his April 15, 2022 deposition. (See id. at 43:16-44:23.)

A party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1523-24.)

As Bowser expressly delineated the subject matter of his testimony, the Court finds that excluding expert testimony that falls outside the nine subjects specified during Boswer’s deposition is appropriate under Jones v. Moore (2000) 80 Cal.App.4th 557, 565. The Court therefore GRANTS the Bowser Motion.

The Bero Motion

BMI seeks to exclude the opinions offered by Bero, DLF’s damages expert, regarding three categories of damages: (1) lost profits; (2) unjust enrichment; and (3) lost business value. Bero provided DLF with an opinion that: (1) DLF sustained lost profits damages in an amount between $220.9 million to $339.6 million; (2) BMI was unjustly enriched in an amount ranging from $245.1 million to $272.1 million; and (3) DLF sustained lost business value damages in an amount up to $330.8 million.

1. Lost Profit Damages

Lost profits based on a future contract cannot be recovered when the contract is uncertain or speculative. (Food Safety Net Servs. v. Eco Safe Sys. USA, Inc. (2012) 209 Cal. App. 4th 1118, 1132.)

BMI argues that: (1) although Bero’s opinion regarding DLF’s lost profits is rooted in the alleged breach of the ESA, the vast majority of the damages calculated by Bero estimate alleged losses after the ESA was set to expire in August 2019; and (2) Bero did not provide a sufficient basis for the assumption that the Parties would have continued a contractual relationship.

The Court agrees that Bero did not provide a sufficient basis for his assumption that the Parties would have extended their contractual relationship in light of their already “rocky” relationship. (See Mohebbi Decl., Exhibit F at 154:2-11.) Further, DLF’s argument that the fact that there are limited competent co-packers and that the Parties invested time and money into their relationship and DLF’s manufacturing facilities is not convincing, as these conditions substantially existed at the time when BMI terminated the ESA. (See Mohebbi Decl., Exhibit D at 35; Supplemental Mohebbi Decl., Exhibit J at 112:14-114:7.)

2. Unjust Enrichment Damages

Unjust enrichment damages are not available for claims rooted in contract. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389-90.) The Court finds that Bero’s opinion does not set forth a valid basis for DLF’s recovery of unjust enrichment damages.

3. Lost Business Value Damages

Bero’s opinion regarding lost business value damages is based in part on the assumption that DLF would have grown its business selling plant-based products at a rate comparable to the growth rate of BMI. (See Mohebbi Decl., Exhibit D at 4.) Bero testified that this assumption is based on the fact that BMI and DLF worked together for a period of time to build BMI’s production capacity and that therefore, DLF had the requisite production capability and financial marketing management resources to grow its business. (See Mohebbi Decl., Exhibit F at 211:6-22.) Bero also testified that he did not consider research and development (“R&D”) efforts and that he was unaware of any plant-based products comparable to those produced by BMI that DLF manufactured prior to its relationship with BMI. (Id. at 205:3-206:19; 208:13-209:18.) The Court finds that Bero has not provided an adequate basis for the lost business value damages and that his opinion regarding such damages is not adequately supported by the record and is rooted in insufficiently analyzed assumptions. (See Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 888.)

4. Topics Not Offered at Deposition

While Bero was designated to testify on topics that include rebuttal testimony against two of BMI’s damages experts, during his deposition, Bero testified that he was not certain if he would be providing rebuttal opinions and that he did not presently have any opinions to offer. The Court finds that such matters are properly excluded under Jones v. Moore (2000) 80 Cal.App.4th 557, 565. The Court therefore GRANTS the Bero Motion in its entirety.

The Deibel Motion

BMI seeks to exclude Dr. Deibel’s opinions that: (1) the Salmonella Heidelberg found at DLF’s Mansfield facility and in BMI’s products manufactured there originated in pea protein fertilized by contaminated poultry; (2) the mixer located at DLF’s Mansfield facility that tested positive for Salmonella Heidelberg was not frequently used and was not used around the time when salmonella was found in BMI’s products; and (3) the wooden pallet located at the Mansfield facility that tested positive for Salmonella Enteritidis was shipped from BMI. The Deibel Motion also seeks to exclude opinions on topics that were not specified during Dr. Deibel’s deposition.

Because experts rely on hearsay knowledge and because a jury must independently evaluate the probative value of an expert's testimony, including by assessing the basis of the expert's opinion, the expert is entitled to tell the jury the basis or matter upon which his opinion rests. (Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 817.) Rather than let an expert freely place before the fact finder any hearsay “matter” that may be characterized as a basis of his or her opinion so long as it is not admitted for the truth thereof, such testimony may convey hearsay only if it is: (1) general knowledge among those in the expert's field; or (2) independently provable by admissible evidence. (Id.) An expert’s testimony to background information is admissible, either as nonhearsay to the extent it rests on the expert’s personal knowledge, or under a hearsay exception to the extent it rests on information provided by others, while testimony to case-specific facts is subject to exclusion, unless independently proved by admissible evidence. (Id. at 183.) Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. (People v. Sanchez (2016) 63 Cal.4th 665, 676 (“Sanchez”).) An expert may still rely on hearsay in forming an opinion and may tell the jury in general terms that he did so but may not relate as true case-specific facts asserted in hearsay statements unless they are independently proven by competent evidence or are covered by a hearsay exception. (Id. at 685-86.)

The Court finds Dr. Deibel has presented a factual basis for her opinions regarding the frequency and timing of the use of the mixer and the origin of the pallet that relies on case-specific facts that is sufficient to allow a jury to consider the weight of the evidence. (See Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1121.) Both of these opinions, however, rely on case-specific facts obtained through Dr. Deibel’s communications with Donald Goodman (“Goodman”), that have not been independently proved. (See Mohebbi Decl., Exhibit B at 44:16-45:6; 81:6-12.) Therefore, the inclusion of Goodman’s statements in Dr. Deibel’s report is inadmissible hearsay. As noted above, however, an expert may still rely on hearsay in forming his or her opinion; what is precluded is the inclusion of case-specific facts as included in hearsay statements. (See Sanchez, supra, 63 Cal.4th at 685-86.) Therefore, the portions of Dr. Deibel’s report that rely on Goodman’s statements are admissible, but those statements may not themselves be admitted.

BMI contends that Dr. Deibel specified that she has no opinion about the source of the Salmonella Enteritidis on the pallet and that she should therefore be barred from providing testimony of such. (See Mohebbi Decl., Exhibit B at 45:22-24.) DLF points to other portions of Dr. Deibel’s deposition in which she does express an opinion on the Salmonella Enteritidis. The Court finds that Dr. Deibel’s testimony is not as cut and dry on the issue of her opinion on Salmonella Enteritidis as BMI contends and finds that such testimony is admissible, subject to the caveats regarding hearsay described above. The Court DENIES the Deibel Motion insofar as it relates to opinion testimony on this topic.

Dr. Deibel indicated that she was not instructed to reach an opinion on the topic of protocols for the accuracy of testing of product and environments for pathogens and other contamination as it relates to its manufacturing of food. The Court finds that Dr. Deibel is therefore precluded from providing testimony on this topic under Jones v. Moore (2000) 80 Cal.App.4th 557, 565.

The Court therefore GRANTS the Deibel Motion in part and DENIES it in part.

The Ackerman Motion

DLF argues that the Court should exclude the opinions offered by Ackerman, BMI’s damages expert, regarding: (1) unjust enrichment damages; (2) BMI’s costs; (3) certain costs included in the damages analysis; and (4) the increased costs of production incurred by BMI after it terminated the ESA.

DLF argues that Ackerman’s opinion regarding unjust enrichment damages is unreliable because it is not linked to the alleged trade secret misappropriation. Ackerman posits that the unjust enrichment damages may be calculated by adding R&D costs that DLF allegedly saved to DLF’s gross profits for its plant-based meat products and DLF’s profits from the sales of its products that allegedly infringe upon BMI’s trade secrets. (Declaration of Christine Woodin (“Woodin Decl.”), Exhibit 1, Schedules 5-6.). DLF argues that Ackerman’s opinion relies on the assumption that all the processes used in the production of BMI products are comprised of trade secrets and fails to segregate the amount of R&D or profits that specifically result from the use of the alleged trade secrets. In particular, DLF notes that Ackerman’s opinion does not take into account the time spent developing extrudate, which BMI has specified is not at issue in this matter, or processes which are public. (See Woodin Decl., Exhibit 3 at 55:5-15, 61:5-8.) BMI notes that it substantially developed its extrudate before it began incurring R&D costs. (Declaration of Justin Fuller 3, 5.)

The Court finds that DLF’s arguments concern the weight that should be afforded to Ackerman’s valuation of BMI’s R&D efforts rather than its admissibility. Moreover, Ackerman’s evidence regarding DLF’s profits is a sufficient basis for his opinion. The party seeking disgorgement has the burden of producing evidence permitting at least a reasonable approximation of the amount of the wrongful gain. (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 894.) Residual risk of uncertainty in calculating net profit is assigned to the wrongdoer. (Id.)

The Court further finds that Ackerman’s reliance on and recitation of BMI’s business records is an appropriate evidentiary basis for his opinions. Notwithstanding DLF’s arguments to the contrary, Ackerman’s opinion is based on his interpretation of the records provided to him by BMI.

DLF also takes issue with Ackerman’s opinion that BMI is entitled to damages stemming from costs related to unrecovered equipment leasehold improvements, lost inventory, and unsaleable product. The Court finds that DLF has not established that there is no basis for BMI’s recovery for these alleged losses; BMI contends that it made certain investments based on the expectation of the full term of the ESA, which it did not receive due to DLF’s alleged breach. The Court further finds that Ackerman’s calculations with regarding increased costs utilize sufficiently reliable methods to permit the evidence to be evaluated by a jury.

The Court therefore DENIES the Ackerman Motion.

The Mitchell Motion

DLF seeks to exclude the opinions of Dr. Mitchell offered in the declaration she submitted in BMI’s opposition to the motion for summary adjudication (the “Mitchell Declaration”) on the grounds that: (1) Dr. Mitchell did not use a consistent methodology to link the review of facts to her conclusion that DLF’s processes are derived from BMI’s trade secrets; (2) Dr. Mitchell provided conclusory opinions regarding BMI’s trade secret disclosure; and (3) Dr. Mitchell admits that she did not analyze the formula for the product that DLF claims is the predecessor to the product that it allegedly created using BMI’s misappropriated trade secrets.

The Mitchell Declaration provides an overview of similarities between certain products manufactured by BMI and DLF based on a comparison of the ingredients and formulations of the products. Dr. Mitchell concluded that the information contained in BMI’s trade secret disclosure is distinguishable from what is generally known in the food manufacturing industry. (Woodin Decl, Exhibit 5 at 5, 7.) Dr. Mitchell drew her conclusions based on her expertise as a food scientist and her review of the record.

The Mitchell Declaration served a limited purpose in the context of BMI’s opposition to a summary judgment motion concerning its misappropriation claim. While Dr. Mitchell provided an overview of the similarities between certain products and opined on DLF’s lack of R&D infrastructure, the Mitchell Declaration does not actually offer an opinion on whether DLF misappropriated BMI’s trade secrets. In her deposition, however, Dr. Mitchell indicated that her Declaration was not exhaustive and that she reserved the right to provide additional testimony regarding her opinions. (See Mohebbi Decl., Exhibit B at 240:3-241:4.)

DLF’s argument that Dr. Mitchell failed to show that she used a reliable method to conclude that DLF misappropriated BMI’s trade secrets misstates the scope of the Mitchell Declaration, which is based on a review of the Parties’ manufacturing techniques and respective R&D efforts and relies on her experience as a food scientist. An expert’s broad knowledge and experience with subject matter may be a sufficient basis for their opinion. (See People v. Jones (2013) 57 Cal.4th 899, 953-54; Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1121-22.) Dr. Mitchell has presented an adequate basis for her opinion, and notably, DLF has not provided evidence to contradict her qualifications. DLF may dispute how probative Dr. Mitchell’s opinion is by introducing its own evidence or by cross-examining her. (See Howard Entertainment, Inc. v. Kudrow, supra, 208 Cal.App.4th at 1121.)

BMI does not dispute that Dr. Mitchell is not offering an opinion on the legal sufficiency of the trade disclosure. The Court finds that BMI has conceded this point under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215. The Court therefore GRANTS the Mitchell Motion only to the extent that it pertains to precluding Dr. Mitchell from offering an opinion on the legal sufficiency of BMI’s trade secret disclosure.[1]

The Buchanan Motion

DLF seeks to exclude any testimony regarding the chain of custody transfer that Dr. Buchanan conducted at BMI’s counsel’s request in June 2019 during which he retrieved what BMI claims are frozen BMI samples from 2017, which he sent to a lab. (Woodin Decl., Exhibit 11 at 4.)

BMI argues that the Buchanan Motion is superfluous because Dr. Buchanan is not designated to testify as an expert on chain-of-custody issues. BMI further contends that to the extent chain-of-custody issues are introduced during the trial, Dr. Buchanan may testify as a lay witness based on his personal involvement.

The Court agrees that Dr. Buchanan is not designated to testify as an expert on chain-of-custody issues. The Court therefore GRANTS the Motion insofar as it pertains to Dr. Buchanan’s testimony as a designated expert.[2]

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 July 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Court declines to consider BMI’s request for sanctions against DLF in connection to the Mitchell Motion.

[2] Should Dr. Buchanan provide testimony regarding his personal involvement in the transportation of the sample, DLF may raise objections at the time such testimony is offered.



Case Number: ****2838 Hearing Date: April 19, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY ADJUDICATION

Date: April 19, 2022

Time: 8:30 a.m.

Dept. 56

Trial Date: September 26, 2022

MOVING PARTY: Plaintiff/Cross-Defendant Don Lee Farms (“DLF”) and Cross-Defendant Goodman Foods Products, Inc. (“GFP”) (sometimes collectively, “DLF”)

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

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

BACKGROUND

This action arises out of the dissolution of the business relationship between BMI and DLF (the “Parties”). BMI’s currently operative first amended cross-complaint (the “FAXC”) alleges: (1) violation of the California Uniform Trade Secrets Act (“CUTSA”); (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.[1]

The FAXC alleges the following:

BMI is a producer of plant-based products which are formulated to accurately approximate the look, texture and taste of animal meat. (FAXC 1.) In 2014, BMI’s products had been available to the public for years. (FAXC 4.) In 2014, BMI and DLF entered into a supply agreement (the “SA”) pursuant to which DLF became BMI’s co-manufacturer for some of its products. (FAXC 4, 39, Exhibit B.) Before entering into the SA, the Parties entered into a nondisclosure agreement (the “NDA”) which provided that DLF was prohibited from using BMI’s confidential information without BMI’s consent. (FAXC 37, Exhibit A.) Under the SA, the protections of the NDA continued to apply, protecting BMI’s proprietary and confidential information during and after any termination of the Parties’ contractual relationship. (FAXC 40.)

Under the SA, DLF manufactured certain BMI products. (FAXC 44.) BMI continued developing and manufacturing other products at its own facilities, including its current flagship product, the Beyond Burger (the “BMI Burger”). (FAXC 46.) BMI initially produced the BMI Burger at its own production facilities and through the work of its engineers, developed a set of production specifications to eventually provide to a co-manufacturer. (Id.) The BMI Burger was launched in May 2016 and BMI manufactured the product on a commercial sale at its own facility for several months thereafter. (FAXC 47.)

In April 2016, the Parties amended the SA and DLF became the exclusive co-manufacturer of BMI’s products, including products that thus far been separately produced by BMI, including the BMI Burger. (FAXC 6, 55, Exhibit C.)[2]

BMI alleges that there were health and safety issues at DLF’s facility, which caused it to terminate the SA on May 23, 2017. (FAXC 83.) Shortly thereafter, DLF initiated this action. (FAXC 84.)

In 2018, DLF released its first plant-based burger advertised as emulating the qualities of animal meat. (FAXC 88.) In 2019, DLF further adapted the concept and released a patty named the “Better Than Beef Burger” (the “DLF Burger”), which was followed by the release of a plant-based ground beef substitute called the Better than Beef Crumble (the “DLF Crumble”). (FAXC 88-89.) BMI alleges that the DLF Burger was designed to emulate the BMI Burger that the DLF Crumble was designed to emulate a BMI’s previously released Beyond Beef Crumble (the “BMI Crumble”). (Id.) BMI alleges that DLF was able to create these products by misappropriating BMI’s proprietary information that it gained during the Parties’ contractual relationship. (See FAXC 91-93.) Although BMI never disclosed its proprietary information concerning certain ingredients it uses, it had shared information about the processes it utilized to transform plant-based ingredients into products that resemble animal meat, which DLF did not have experience with before their relationship. (FAXC 87.) BMI alleges that the DLF Burger and DLF Crumble were developed through the use of BMI’s trade secrets, including ingredient formulations, binding systems, mixing processes, sequences of ingredients, cooking temperature, heating of essential ingredients, batch preparation steps, ingredient storage processes, and formula and product transportation requirements. (FAXC 93.)

On January 27, 2022, DLF filed a motion for summary adjudication (the “Motion”) to the first cause of action in the FAXC for violation of the CUTSA. BMI argues that: (1) BMI cannot demonstrate that it independently developed any trade secrets; (2) any alleged trade secrets are not protected under CUTSA; (3) DLF did not improperly acquire or use any trade secrets; (4) BMI cannot establish damages; and (5) there is no evidence to establish liability as to GFP.

REQUEST FOR JUDICIAL NOTICE

DLF’S Request for Judicial Notice and BMI’s Request for Judicial notice are GRANTED as to all exhibits, but not for the truth of the matters asserted therein. (Evid. Code 452, subd. (h); In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787 n. 14.)

EVIDENTIARY OBJECTIONS

BMI’s evidentiary objections numbers 1, 3, 5, 7-9, 11, 12-13, 15-17, 20, 22-27, 30-32, 34, 36-41, 46-56, 58-59, and 73-75 are OVERRULED. BMI’s evidentiary objections numbers 2, 4, 6, 10, 14, 18, 19, 21, 28-29, 33, 35, 42-45, 60-62, and 64-72 are SUSTAINED.

DLF’s evidentiary objections numbers 4, 6-10, 12-25, 27-46, 49-57, 59, 62-80, 82—117 are OVERRULED. DLF’s evidentiary objections numbers 1-3, 5, 11, 26, 47-48, 58, 60-61, and 81 are SUSTAINED.

DISCUSSION

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DLF’s Evidence

DLF began developing and producing meatless products before its relationship with BMI. (Undisputed Material Fact (“UMF”) 6.) For example, in 2014, DLF developed such a black bean burger. (UMF 20.) Before entering into a relationship with BMI, DLF was also researching and developing methodologies to enhance meatless and meat-based products including by incorporating ingredients such as beet powder. (UMF 22.) Each step of DLF’s manufacturing process takes years to develop. (UMF 32.)

The Parties’ business relationship began in 2014 after BMI was referred to DLF as a potential co-manufacturer of its products. (UMF 23.) DLF understood that BMI was interested in forming a business relationship in order to use DLF in order to scale-up the production of BMI’s products. (See UMF 28, 35-36.) Before the Parties entered into the SA, BMI made the BMI Burger patty by hand. (See UMF 29.) Two people made the BMI Burger patties at one time. (Id.) BMI did not have experience producing burger products at a commercial scale when the Parties commenced their relationship. (UMF 39.)

On December 2, 2014, the Parties entered into the SA, which provided that DLF had the exclusive right to manufacture patties, sliders, meatballs, chicken poppers, chicken tenders, and other products as agreed to by the Parties. (UMF 41.) Under the terms of the SA, DLF reserved the right to continue producing its own products internally, although the SA specified that DLF was not entitled to manufacture vegan or vegetarian food products containing the same ingredients and proportions of ingredients. (See UMF 44.)

Based on its assessment of consumer interests in the mid-2000s and 2016-2017, DLF began to focus on developing and producing plant-based products that are intended to look, cook and taste like animal meat. (UMF 47.) DLF introduced the DLF Burger in September 2019 and the DLF Crumble in November 2019. (UMF 48.) These products represent the culmination of over a decade of DLF’s experience manufacturing plant-based products. (See UMF 49.)

After initiating its crossclaim, BMI identified its alleged trade secrets pursuant to CCP section 2019.210 (the “BMI Disclosure”). The general processes and ingredients for making plant-based products that are identified in the BMI Disclosure have been known since before BMI launched the BMI Burger in 2016. (UMF 60.) In addition, there are publicly available examples of plant-based burgers that emulate the texture of cooked beef containing similar or identical ingredients as those used in the BMI Burger. (UMF 61.)

The DLF Burger and DLF Crumble use different ingredients and are made with different processes than the alleged BMI counterparts. (See UMF 71-77, 88-93.)

BMI’s Evidence

Throughout the Parties’ relationship, BMI sent DLF documents containing its procedures, processes and formulations for manufacturing the BMI Burger and BMI Crumble. (See Additional Material Fact (“AMF”) 120.) In addition, BMI trained DLF employees on how to make the BMI Burger and BMI Crumble, including providing certain equipment and providing instruction on certain production methods. (See AMF 122.)

Before its relationship with BMI began in 2014, DLF had never manufactured a “meat-free product that looks like a raw ground beef burger.” (Declaration of Marvin S. Putnam (“Putnam Decl.”), Exhibit 43 at 425:4-7.) One month after the Parties’ relationship ended on May 23, 2017, Donald Goodman called a former BMI engineer to ask about “extrusion processes” and “extrusion manufacturers” because DLF was developing a product similar to the BMI Burger. (AMF 137; Putnam Decl. 19, Exhibit 53 at 185:3-22.) On June 26, 2017, a Costco representative contacted Daniel Goodman (“Daniel”) [3] asking if DLF would be able to knock off the BMI Burger. (AMF 138; Putnam Decl., Exhibit 91.) Daniel represented to the Costco representative that DLF would be able to provide Costco with such a product. (Id.) In August 2017, DLF provided Costco with a product sample described in an email from a Costco representative to Daniel with the subject line: “beyond meat knock off.” (Putnam Decl., Exhibit 89.)

In June 2018, DLF employees internally circulated confidential documents that it received from BMI during their contractual relationship that contained the formulas and production protocols for BMI products, including the BMI Burger and BMI Crumble. (See AMF 141.)

BMI’s expert witness, Dr. Alyson E. Mitchell (“Dr. Mitchell”) declares that the DLF Burger and DLF Crumble share a number of similarities with the BMI Burger and BMI Crumble. (See Declaration of Dr. Alyson E. Mitchell (“Mitchell Decl.”) 37.) The BMI products and corresponding DLF products share similar primary ingredients in similar proportions. (Mitchell Decl. 32-36.) The ingredients that differ in the DLF products’ primary ingredients are functionally identical to those used by BMI. (See id.) Dr. Mitchell declares that the BMI Disclosure identifies a comprehensive process that is unique to BMI and contains necessary steps for creating plant-based products that mimic animal meat products that are not generally known in the food manufacturing industry. (Mitchell Decl. 7.)

BMI has spent years conducting research and development (“R&D”) related to its products and continues to spend millions of dollars per year in R&D. DLF has not keep track of its R&D expenses in the past years and has not provided evidence to BMI that it expended funds on R&D related to plant-based products. (See AMF 155.)

GFP does business as DLF, with DLF operating as the management support function company for GFP’s benefit. (See AMF 157-58.)

First Cause of Action: Misappropriation of Trade Secrets

The elements of a cause of action for misappropriation of trade secrets under CUTSA are: (1) the plaintiff’s possession of a trade secret; (2) the defendant's misappropriation of the trade secret, meaning its wrongful acquisition, disclosure, or use; and (3) resulting or threatened injury to the plaintiff. (Silvaco Data Sys. v. Intel Corp. (2010) 184 Cal. App. 4th 210, 220, disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.)

Preliminarily, the Court is unpersuaded by DLF’s argument that BMI is precluded from alleging a trade secrets misappropriation claim due to the position it took in its motion for summary adjudication to DLF’s claim for trade secret misappropriation (the “BMI MSA”), which the Court granted on August 27, 2021. The Court granted the BMI MSA to DLF’s trade secrets misappropriation claim on the grounds that DLF’s argument in opposition attempted to redefine its alleged trade secrets in a manner that conflicted with its verified discovery responses. Here, BMI’s claims are based on alleged trade secrets which BMI contends were developed before the Parties’ contractual relationship. The terms of the Parties’ contractual agreement specified that BMI’s intellectual property developed prior to the relationship would remain BMI’s exclusive property. BMI has presented evidence that it developed the ingredients and processes for manufacturing the products at issue before it began its relationship with DLF; therefore, there is a triable issue of material fact as to whether BMI independently developed the relevant trade secrets.

Adequacy of BMI’s CCP Section 2019.210 Disclosure

Under CCP section 2019.210, in any action alleging the misappropriation of a trade secret under the CUTSA, the party alleging the misappropriation shall identify the trade secret with reasonable particularity before commencing discovery relating to the trade secret. (CCP 2019.210.) The letter and spirit of CCP section 2019.210 require the plaintiff, subject to an appropriate protective order, to identify or designate the trade secrets at issue with sufficient particularity to limit the permissible scope of discovery by distinguishing the trade secrets from matters of general knowledge in the trade or of special knowledge of those persons skilled in the trade. (Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 835.) What constitutes a sufficient showing of “reasonable particularity” is flexible enough for the referee or the trial court to achieve a just result depending on the facts, law, and equities of the situation. (Id.) The statute does not require in every case that a trade secret claimant explain how the alleged trade secret differs from the general knowledge of skilled persons in the field to which the secret relates. (Brescia v. Angelin (2009) 172 Cal.App.4th 133, 138.) Rather, such an explanation is required only when, given the nature of the alleged secret or the technological field in which it arises, the details provided by the claimant to identify the secret are themselves inadequate to permit the defendant to learn the boundaries of the secret and investigate defenses or to permit the court to understand the designation and fashion discovery. (Id.) The trade secret designation is to be liberally construed, and reasonable doubts regarding its adequacy are to be resolved in favor of allowing discovery to go forward. (Id.) Regardless of whether individual elements are generally known, a combination of the processes may constitute a protectable trade secret. (See Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 37.) When a Section 2019.210 disclosure is challenged by a motion for summary judgment, the court may review the evidence submitted in the plaintiff’s opposition when evaluating the sufficiency of the disclosure. (See InteliClear, LLC v. ETC Global Holdings, Inc. (2020) 978 F.3d 653, 658-59 (information in declaration submitted with plaintiff’s opposition sufficient to create triable issue of fact as to whether plaintiff’s disclosure was sufficiently particular).)

The BMI Disclosure is approximately two and a half pages long and provides that the allegedly misappropriated trade secret is a combination and compilation of know-how, ingredient formulations, and processes for creating the BMI Burger and BMI Crumble. (See UMF 50.) While the BMI Disclosure identifies high-level elements of its alleged trade secret, the Mitchell Declaration and the evidence cited therein provide additional specificity. (See Mitchell Decl. 7-19.)

Based on the evidence before the Court, the Court finds that there is a triable issue of material fact as to whether BMI identified its trade secret with sufficient particularity.

Unauthorized Use or Disclosure

Based on the record, the Court finds that there are triable issues of material fact as to whether DLF used BMI’s alleged trade secrets. DLF focuses on the differences between its products and the BMI products. The differences alone do not establish that it did not use BMI’s proprietary information before developing these products. Additionally, BMI has produced circumstantial evidence that permits a reasonable inference that DLF used proprietary information gained during the Parties’ contractual relationship, such as the time frame between the end of the Parties’ relationship and the DLF’s release of a meat-emulating plant-based burger product at Costco, DLF’s lack of R&D efforts, Costco’s request for a “knock off” product, and DLF employees circulating BMI’s confidential documents concerning the production of the BMI Burger.[4]

Damages

DLF’s argument that BMI is required to show that it has lost business as a result of the alleged misappropriation does not acknowledge that Plaintiffs may recover for unjust enrichment caused by misappropriation. (See Civ. Code 3426.3, subd. (a).)

Liability of GFP

BMI has presented evidence to raise a triable issue of fact as to whether GFP may be held liable for indirect misappropriation based on the relatedness of the two entities.

The Court therefore DENIES the Motion.

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 19th day of April 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] On May 7, 2021, the Court granted DLF’s motion for summary adjudication as to the sixth and tenth causes of action in the FAXC.

[2] The FAXC alleges that DLF fraudulently induced BMI to amend the SA by misrepresenting its ability to handle BMI’s expansion. (See FAXC 6-7.)

[3] The Court uses first names to distinguish between persons with the same last name and does not intend any disrespect in doing so.

[4] The Court also notes that DLF does not address BMI’s allegation that its trade secrets were wrongfully acquired. (See FAXC 132.)



Case Number: ****2838 Hearing Date: March 3, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTION TO DISQUALIFY COUNSEL

Date: March 3, 2022

Time: 8:30 a.m.

Dept. 56

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

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

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

BACKGROUND

DLF filed a motion (the “Motion”) seeking the disqualification of BMI’s counsel, the law firm of Latham & Watkins LLP (“Latham”), based on its attorneys’ conduct upon receiving inadvertently disclosed documents that DLF contends are protected by the attorney-client privilege and attorney work product doctrine.

The dispute forming the basis for the present Motion arises out of a motion to disqualify DLF’s counsel filed by BMI (the “BMI Motion”) which this Court partially granted on September 30, 2021 when it ordered that Dr. Donald Zink (“Dr. Zink”) be disqualified as an expert witness for DLF and Jolyda Swaim of the law firm Olsson Frank Weeda Terman Matz PC (“OFW”) be disqualified as counsel for DLF.

Following the Court’s ruling on the BMI Motion, Latham served business records subpoenas on Loeb & Loeb LLP (“Loeb”) and OFW seeking the production of documents concerning Dr. Zink. (See Declaration of Todd J. Densen (“Densen Decl.”) 2, Exhibit 2; Declaration of David L. Durkin (“Durkin Decl.”) 3, Exhibit 1.) Loeb and OFW both served written objections to the subpoenas on the grounds that the requests sought documents that are irrelevant to the parties’ claims and defenses and protected under the attorney-client privilege and/or attorney work product doctrine. (Densen Decl. 6, Exhibit 4; Durkin Decl. 4, Exhibit 2.)

On November 18, 2021, during a call between Loeb attorneys Densen, W. Allan Edmiston (“Edmiston”) and Emily Stone (“Stone”) and Latham attorneys Nima H. Mohebbi (“Mohebbi”) and Tiffany Ikeda (“Ikeda”), Loeb learned that Latham was in possession of privileged material when Mohebbi read aloud an email that OFW produced in response to the subpoena that was between Loeb, OFW and their clients, the Goodmans. (Declaration of W. Allan Edmiston (“Edmiston Decl.”) 2.)[1]

DISCUSSION

Courts have the discretion to disqualify a law firm pursuant to the inherent authority to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any matter connected with a judicial proceeding before it, in every manner pertaining thereto. (CCP 128, subd. (a)(5).) In ruling on a motion to disqualify, the court should weigh: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.) The power is frequently exercised on a showing that disqualification is required under professional standards governing potential adverse use of confidential information. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47.)

Since the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court. Thus, disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation. (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 308-09.)

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged and shall immediately notify the sender that he or she possess material that appears to be privileged. (State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656 (“State Fund”).) The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. (Id. at 656-57.)

Under State Fund, an attorney’s obligation is to review the materials no more than necessary to determine whether they are privileged and then notify the privilege holder’s counsel. (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1113.) The State Fund rule is an objective standard. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 818.) In applying the rule, courts must consider whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel’s examination should have ended. (Id.)

DLF argues that Latham violated its duties under State Fund in three ways: (1) by reviewing the protected materials more than was necessary to determine that they were presumptively privileged; (2) by failing to notify DLF that they received inadvertently produced protected materials; and (3) by improperly using the protected materials during the November 18, 2021 meet and confer between Latham and Loeb and in support of the Clawback Motion.

Latham’s Receipt of Documents Produced by OFW

On November 10, 2021, after reviewing OFW’s objections, Latham attorneys met and conferred with OFW. (Declaration of Nima H. Mohebbi (“Mohebbi Decl.”) Decl. 16.) During the meet and confer, Durkin confirmed that OFW intended to produce documents and a privilege log but specified that OFW needed additional time to make its production because it intended to cautiously review responsive documents for privilege. (See Mohebbi Decl. 16-19, Exhibit 14.) During the conversation with Durkin, Mohebbi explained BMI’s position that any communications concerning Dr. Zink between counsel and/or DLF were not covered by the work product doctrine or attorney-client privilege. (See Mohebbi Decl. 16-17.) During the conversation, Durkin stated that the only documents DLF and OFW would hold back on the basis of privilege or work product protection would be indicated on a privilege log. (Mohebbi Decl. 18.) OFW served its production of 437 documents and a privilege log consisting of 55 entries on November 17, 2021 at 9:35 p.m. (Mohebbi Decl. 21, Exhibit 15.)

At 10 a.m. the following morning, November 18, 2021, Latham and Loeb met and conferred regarding Loeb’s production of documents pursuant to the subpoena Latham issued. (Mohebbi Decl. 22.) During the call, Loeb stated that no communications discussing Dr. Zink’s testimony that were responsive to the subpoena existed. (Id.) At around 10:15 a.m., Ikeda reviewed the OFW privilege log emailed Mohebbi two documents OFW produced, one of which was Disputed Document 1, which Mohebbi then read aloud. (Mohebbi Decl. 23.)

Loeb immediately asserted that the email was a privileged attorney-client communication. (Edmiston Decl. 2.) Edmiston declares that Mohebbi then stated that OFW had produced the document and that any privilege had therefore been waived. (Id.) Edmiston asked Mohebbi to stop reviewing OFW’s production until he could investigate the claim of a waiver. (Id.) Later on November 18, 2021, Edmiston emailed Mohebbi to confirm that DLF asserted its privilege over any attorney-client communications and DLF’s counsel at Loeb, OFW and Hueston Hennigan LLP asserted attorney work product protection over their communications that were produced by OFW. (Edmiston Decl. 3-4, Exhibit 1.) In the November 18, 2021 email, Edmiston demanded that Latham destroy OFW’s production and provided that OFW would prepare and transmit a new production of documents that were not protected. (Edmiston Decl., Exhibit 1.) On December 9, 2021, OFW confirmed to Latham that its November 17, 2021 production was made in error. (See Durkin Decl., Exhibits 3-4.) OFW sent an amended production to Latham on January 3, 2022 and sent an updated privilege log on January 7, 2022. (Durkin Decl., Exhibits 5, 7.)

Recitation of Disputed Document 1 During the November 18, 2021 Meet and Confer

DLF argues that Latham impermissibly reviewed a facially privileged document without notifying DLF and its counsel that it had received privileged documents and that it has since tactically leveraged its improper review of OFW’s discovery to obtain an advantage in the litigation.

Latham contends that its first review of OFW’s production occurred during the November 18, 2021 call and that its review of the email was not unreasonable or improper under the circumstances. Ikeda declares that the morning of November 18, 2021, a Latham paralegal downloaded OFW’s production that was sent the night before and sent Ikeda and a few colleagues, including Mohebbi and Laura Washington (“Washington”) a link to the folder. (Declaration of Tiffany M. Ikeda (“Ikeda Decl.”) 3.) Ikeda accessed the folder for the first time at around 10:10 a.m., during the call with Loeb. (Ikeda Decl. 4.) Ikeda declares that the documents appeared as PDFs without viewable metadata, with file names consisting of a number; therefore, the contents of the documents could not be discerned without opening them. (Id.) Ikeda declares that she had no reason to believe the documents contained privileged material since OFW had produced a privilege log. (Id.) Ikeda declares that during the call, she randomly selected and glanced at a few documents and determined they were responsive to the subpoena and therefore did not appear to be privileged. (Ikeda Decl. 5.) Ikeda forwarded two documents to Mohebbi during the call, one of which was Disputed Document 1. (Id.) After Edmiston responded to Mohebbi’s recitation of Disputed Document 1, Ikeda declares she immediately stopped reviewing the documents produced by OFW. (Id.) At around 10:28 a.m., while the call was still ongoing, Mohebbi emailed Ikeda, Washington, Putnam, other associates of the BMI trial team and the paralegal who had originally downloaded the production to inform them that Loeb requested that they cease reviewing the OFW production. (Ikeda 6.) At around 10:30, a.m., Ikeda emailed the Latham associates who worked on the BMI Motion to Disqualify to notify them of Loeb’s demand that Latham cease reviewing the documents; the associates confirmed receipt of the email within minutes. (See id.) Before Loeb’s clawback request, no Latham employee aside from Ikeda at Latham reviewed any portion of OFW’s production. (Ikeda Decl. 6.)

Latham also argues that it did not act improperly after Loeb demanded that they sequester OFW’s production because its attorneys stopped reviewing the documents and only engaged with the documents in compliance with the procedures set forth in CCP section 2031.285 to contest the clawback. Latham attorneys declare that no member of the Latham trial team has substantively reviewed facially privileged documents produced by OFW. (See Declaration of Marvin S. Putnam (“Putnam Decl.”) 2; Declaration of Laura R. Washington (“Washington Decl.”) 3.)

The Court finds that Latham did not violate its duties under State Fund by failing to disclose Disputed Document 1 to DLF before the November 18, 2021 meeting. Latham did not receive OFW’s production until the night before and no Latham attorney had reviewed the documents beforehand. The evidence presented by Latham indicates that the email was shared with Loeb nearly contemporaneously with Latham’s review of the document. Additionally, given Latham’s meet and confer efforts with OFW during which OFW represented that it was taking extra caution in compiling its response to the subpoena, it was not unreasonable for Latham not to immediately suspect that the document was privileged or inadvertently produced.

Further, though DLF argues that Latham did not specifically account for how or when its attorneys discovered and reviewed the documents that were ultimately filed under seal in support of the Clawback Motion, DLF does not cite legal authority to support its argument that Latham was obligated to destroy the entire production of documents absent any particularized claim that specified which documents DLF asserted were protected. DLF also offers no evidence that Latham did not sequester the OFW production after the clawback request. Any deviation from the terms of the parties’ Protective Order is similarly not a ground for disqualification in this circumstances.[2] As the Court noted in its ruling on the Clawback Motion, the Protective Order specifically provides that it does not alter, waive, modify or abridge any right, privilege or protection otherwise available to any Party with respect to the discovery of matters, including but not limited to their respective rights to assert or contest the assertion of the attorney-client privilege or the attorney work product doctrine. (See Densen Decl., Exhibit 6 at 4.)[3] An updated privilege log was not provided until January 7, 2022 and Latham thereafter destroyed the documents produced on November 17, 2021 other than the Disputed Documents that it filed under seal for the Court’s consideration of its Clawback Motion pursuant to CCP section 2031.285. (See Mohebbi Decl. 30, 32, Exhibit 22.)

The Court therefore DENIES the Motion.

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 3rd day of March 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Three of the documents OFW produced were the subject of a motion for an order denying DLF’s clawback request (the “Clawback Motion”) filed by BMI that this Court granted in part on February 18, 2022. The Clawback Motion argued that three documents (the “Disputed Documents”) were not covered by the attorney-client privilege or work product doctrine. The Court held that Disputed Documents 1 and 2 were protected by the attorney-client privilege but Disputed Document 3 was not protected by the work product doctrine. The email read by Mohebbi during hte November 18, 2021 meeting was designated as “Disputed Document 1” in the Clawback Motion.

[2] The Court therefore declines to issue the sanctions against BMI requested by DLF.

[3] DLF did not communicate to Latham that the Protective Order compelled the return of the entirety of the OFW production until January 25, 2022. (See Mohebbi Decl. 31.)



Case Number: ****2838 Hearing Date: February 18, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS ACTIONS

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTION FOR ORDER DENYING CLAWBACK DEMAND

Date: February 18, 2022

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”) and Cross-Defendants Donald Goodman, Daniel Goodman and Brand Goodman[1]

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

BACKGROUND

This case arises out of the alleged breach of an exclusive supply agreement. On September 30, 2021, this Court partially granted a motion to disqualify (the “DQ Motion”) filed by BMI and ordered that Dr. Donald Zink (“Dr. Zink”) be disqualified as an expert witness for DLF and Jolyda Swaim (“Swaim”) of the law firm Olsson Frank Weeda Terman Matz PC (“OFW”) be disqualified as counsel for DLF. On January 25, 2022, BMI filed a motion for an order denying DLF’s clawback demand pursuant to California Code of Civil Procedure (“CCP”) section 2031.285 (the “Motion”).

The Motion concerns three documents: (1) an August 3, 2021 email sent by Swaim to Donald Goodman (“Goodman”), the president of DLF (Declaration of Nima H. Mohebbi (“Mohebbi Decl.”) 26, Exhibit AA) (“Document 1”); (2) an email chain spanning from July 29, 2021 through August 3, 2021 between Swaim, Daniel Platt (“Platt”) of the law firm Loeb & Loeb (“Loeb”) and Goodman (Mohebbi Decl. 27, Exhibit BB) (“Document 2”); and (3) an August 4, 2021 email sent by Swaim to Platt (Mohebbi Decl. 28, Exhibit CC) (“Document 3”) (collectively, the “Disputed Documents”). OFW produced the Disputed Documents in its November 17, 2021 response to a deposition subpoena issued by BMI that requested the production of documents related to its communications regarding Dr. Zink. (See Mohebbi Decl. 7, Exhibit G, 14 Exhibit O.)

DISCUSSION

CCP section 2031.285 establishes the “clawback” procedure by which a party may seek the return of privileged or protected electronically stored information (“ESI”) that has been inadvertently produced in discovery. Under the statute, the producing party may notify any party that received the information of the privilege claim and its basis. (CCP 2031.285, subd. (a).) Once the party in possession of the ESI is notified of the producing party’s claim and its basis, the possessing party must immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim. (CCP 2031.285, subd. (b).) Accordingly, the possessing party has an affirmative duty to return the ESI unless it seeks a determination by the court, in which case the motion must be brought within 30 days of being notified of the claim of privilege or protection. (CCP 2031.285, subd. (d)(1).)

The Motion argues that the Disputed Documents are protected by neither the attorney-client privilege nor the attorney work product doctrine and DLF therefore lacks a basis for demanding their clawback.[2]

Timeliness of Motion

The Court preliminarily addresses the timeliness of the Motion. In a footnote, DLF’s opposition to the Motion (the “Opposition”) argues that the Motion is not timely because it was filed over 30 days after BMI received a claim of privilege on November 18, 2021.

The Court is not persuaded by this argument. An objection to a demand for inspection of an item or category of item requires the responding party to both: (1) identify with particularity the material to which an objection is being made; and (2) set forth the extent of and the specific ground for the objection. (CCP 2031.240, subds. (b)(1)-(b)(2).) While Loeb objected to the initial production, no updated privilege log was provided by OFW until January 7, 2022. (See Mohebbi Decl. 13, Exhibit N, 23, Exhibit X.) The Motion was filed fewer than 30 days afterward, on January 25, 2022. The Motion is therefore timely.

Relationship of the Motion to the Protective Order Entered on October 17, 2017

The Opposition argues that BMI’s failure to promptly return the contested documents violates the protective order entered into by BMI and DLF (the “Parties”) adopted by the Court on October 17, 2017 (the “Protective Order”). The Protective Order provides that if a producing Party produces a document that it later discovers or in good faith asserts to be a privileged document, the production of that document shall not be deemed to constitute the waiver of any applicable privileges. (Declaration of W. Allan Edmiston (“Edmiston Decl.”) 2, Exhibit 1 at 22.) In such circumstances, the producing Party must immediately notify the receiving Party of the inadvertent production and request the return or confirmed destruction of the privileged materials. (Id.) The receiving Party shall thereafter return or confirm the destruction of all such materials. (Id.) DLF contends that the Motion is improper because it reflects BMI’s disregard of the Protective Order in order to pursue an improper agenda of seeking additional disqualification of DLF’s counsel.

The Court is similarly not persuaded by this argument. As BMI points out in its reply brief (the “Reply”), the Protective Order provides that it does not alter, waive, modify or abridge any right, privilege or protection otherwise available to any Party with respect to the discovery of matters, including but not limited to the Parties’ respective rights to assert or contest the assertion of the attorney-client privilege or the attorney work product doctrine. (See Edmiston Decl. 2, Exhibit 1 at 4.) BMI has complied with the procedural requirements to contest DLF’s assertion of the attorney-client privileges and work product doctrine to exclude the production of the contested ESI and the Protective Order does not abridge this right.

Attorney-Client Privilege

The attorney-client privilege accords a client a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between client and lawyer. (Evid. Code 954.) The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734 (“Costco”).) A confidential communication between client and lawyer is information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evid. Code 952.)

The privilege does not apply to every single communication transmitted confidentially between lawyer and client. (See Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 293-95 (“L.A. County Bd. of Supervisors”).) The privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation. (Id. at 293.) The inquiry turns on the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential. (Id. at 297.) In order for a communication to be privileged, it must be made for the purpose of legal consultation, rather than some unrelated or ancillary purpose. (Id.) Documents that are not originally protected do not become so merely by being provided to or transmitted by an attorney. (Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal.App.4th 1453, 1458.) Moreover, the privilege does not protect independent facts related to a communication. (Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 227.)

  1. Court Review of Disputed Documents

The Opposition argues that Evidence Code section 915 prohibits the Court from reviewing the contents of the Disputed Documents to arrive at a determination of whether their disclosure is required. Evidence Code section 915 provides that the court may not require disclosure of information claimed to be protected by the attorney-client privilege in order to rule on the claim of privilege. (Evid. Code 915, subd. (a).) The Reply contends that Evidence Code section 915 does not govern situations where a party is retroactively asserting a privilege to documents it has already produced. BMI contends that such situations are governed by CCP section 2031.285, which provides that the party contesting the legitimacy of a privilege claim as to previously produced documents may file the contested documents with the court pending a ruling on the application of a privilege, which necessarily authorizes the court to review the documents. (See CCP 2031.285, subds. (b), (d)(1).) The Reply further argues that CCP section 2031.285 governs in this situation because it is more narrowly drawn than Evidence Code section 915. (See CCP 1859.)

The Court finds that its review of the Disputed Documents is authorized under CCP section 2031.285 because the documents were produced by OFW before DLF asserted a privilege claim. (See Mohebbi Decl. Exhibits N, O, X.)

  1. Scope of Privilege

The Parties dispute the scope of the attorney-client privilege as represented in the BMI’s Motion. DLF argues that BMI’s position that the Disputed Documents are not protected by the privilege because they do not contain legal advice is meritless. In support, DLF contends that L.A. County Bd. of Supervisors does not stand for the proposition that the privilege applies “solely to those communications between the lawyer and the client that are made for the purpose of seeking or delivering the lawyer’s legal advice or representation” because the Court in that case was quoting a concurring opinion in Costco. (See L.A. County Bd. of Supervisors, supra, 2 Cal.5th at 297 (quoting Costco, supra, 47 Cal.4th at 742 (conc. opn. of George, C.J.)).) Rather, DLF argues that L.A. County Bd. of Supervisors holds that the privilege attaches to communications “that bear some relationship to the provision of legal consultation” which are “made for the purpose of the legal consultation.” (See L.A. County Bd. of Supervisors, supra, at 295, 297.) DLF contends that Documents 1 and 2 both bear some relationship to the provision of legal consultation and are therefore protected under the attorney-client privilege.

L.A. County Bd. of Supervisors involved the disclosure of various billing records transmitted in the course of legal representation. In its analysis, the Court noted that while client fees have an ancillary relationship to legal consultation, an invoice listing amounts of fees is not communicated for the purpose of legal consultation. (L.A. County Bd. of Supervisors, supra, at 296.) While the Court found that the communication must be made for the purpose of the legal consultation rather than some unrelated or ancillary purpose and that billing invoices are not made for the purpose of legal representation, the information contained therein may still be within the scope of the privilege. (Id. at 297.) The Court ultimately held that when a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees. (Id.) While invoices sent in the course of a pending legal matter are privileged, the Court additionally found that the privilege may not attach to communications containing “fee totals in legal matters that concluded long ago.” (See id. at 298.) The L.A. County Board of Supervisors is therefore narrower than BMI contends.

Here, it is undisputed that the communications in Documents 1 and 2 were made in the course of Swaim’s representation of DLF in a pending legal matter. Goodman was among the recipients of the email communications in those documents. The Court finds that Documents 1 and 2 are protected by the attorney-client privilege because they contain substantive information related to DLF’s claims and/or defenses. It is irrelevant whether the information shared in the emails is independently covered by a privilege, and BMI is not precluded from seeking such information from other sources. (See Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1226-27 (noting that while the entire confidential communication between an attorney and client is privileged irrespective of whether the contains unprivileged information, the privilege “may not be used to shield facts, as opposed to communications, from discovery”).) The Court therefore DENIES the Motion with respect to Documents 1 and 2.

Work Product Doctrine

The work product doctrine is codified in CCP section 2018.030, which provides: (1) writings that reflects an attorney’s impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances; and (2) the work product of an attorney, other than a writing described in subdivision (a), are not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. (CCP 2018.030, subds. (a)-(b).) Waiver of the work product protection, though not expressly defined by statute, is generally found under the same set of circumstances as waiver of the attorney-client privilege: i.e., by failing to assert the protection, by tendering certain issues and by conduct inconsistent with claiming the protection. (McKesson HBOC v, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1239.)

Because Documents 1 and 2 are protected by the attorney-client privilege, the Court will only consider the application of the attorney work product doctrine to Document 3.

BMI argues that Swaim waived any work product protections in the September 15, 2021 declaration she submitted in support of DLF’s opposition to the DQ Motion (the “Swaim DQ Decl.”). (See Mohebbi Decl. 5, Exhibit E.) In her declaration, Swaim declared, “I have not shared any written or oral attorney work product or analysis with Loeb & Loeb or Hueston Hennigan after July 29, 2021 (i.e. the date I first contacted Dr. Zink). It is therefore impossible that Loeb & Loeb or Hueston Hennigan has even directly received Beyond Meat’s work product through conversations with me.” (Swaim DQ Decl. 8.) This representation, made under penalty of perjury, patently disclaims the applicability of the work product doctrine with respect to any information shared with Loeb or Hueston Hennigan regarding Dr. Zink after July 29, 2021. Document 3 concerns a communication between Swaim and Loeb occurring after July 29, 2021. The Opposition argues that any waiver was accidental but provides no evidence that the information provided in Swaim’s sworn testimony was disclosed inadvertently. Notably, the Opposition lacks evidence from Swaim or any OFW attorneys regarding this disclosure. The Court therefore finds that any protection available to Document 3 under the attorney work product doctrine was waived by conduct inconsistent with the present invocation of the protection.

The Court therefore GRANTS the Motion with respect to Document 3.

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 February 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Court refers to the responding parties collectively as “DLF.”

[2] DLF contends the Disputed Documents are all protected under the work product doctrine and Documents 1 and 2 are additionally protected by the attorney-client privilege.



b'

Case Number: ****2838 Hearing Date: September 29, 2021 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS,

Plaintiff,

vs.

BEYOND MEAT, INC., et al.,

Defendants.

AND RELATED CROSS-ACTIONS.

CASE NO.: ****2838

[TENTATIVE] ORDER RE: MOTION TO DISQUALIFY EXPERT WITNESS AND COUNSEL

Date: September 29, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant-Cross-Complainants Beyond Meat, Inc. (“Beyond Meat”)

OPPOSING PARTIES: Plaintiff-Cross-Defendant Don Lee Farms and Cross-Defendants Donald Goodman, Daniel Goodman and Brand Goodman (collectively, “DLF”)

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

BACKGROUND

This case arises out of the alleged breach of an exclusive supply agreement (the “Contract”). On August 9, 2021, when Beyond Meat, Inc. and DLF exchanged expert witness disclosures, Beyond Meat learned that DLF had retained and identified Dr. Donald Zink (“Dr. Zink”) as an expert witness. Beyond Meat subsequently moved ex parte for an order disqualifying Dr. Zink from serving as DLF’s expert witness and disqualifying all of DLF’s outside counsel. After the Court denied its ex parte application, Beyond Meat filed a motion to disqualify Dr. Zink and DLF’s counsel (the “Motion”). Beyond Meat argues that Dr. Zink must be disqualified because he previously provided privileged consulting work for Beyond Meat that is closely related to the present dispute with DLF. (Motion 8-9.) Beyond Meat further contends that the severity of the conflict of interest underlying Dr. Zink’s proposed disqualification should be imputed to all attorneys who billed hours working on this case.[1]

EVIDENTIARY OBJECTIONS

The Court rules on Beyond Meat’s evidentiary objections as follows: SUSTAINED: 8, 9; OVERULED: 1-7.

DISCUSSION

Courts have the discretion to disqualify a law firm or witness pursuant to the inherent authority to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any matter connected with a judicial proceeding before it, in every manner pertaining thereto.” (CCP ;128, subd. (a)(5); Ontiveros v. Constable (2016) 245 Cal.Ap.4th 686, 694.) Courts have recognized that disqualification of both counsel and an expert witness may be appropriate when a party retains expert witnesses who previously worked for an adversary and who acquired confidential information during the course of their employment. (See Shadow Traffic Network v. Superior Court (1994) 24. Cal.App.4th 1067.) In such cases, the court must determine whether: (1) it was reasonable for the adversary to assume that a confidential relationship existed; and (2) whether the relationship developed into a matter sufficiently substantial to make disqualification or some other judicial remedy appropriate. (Id. at 1080.) If no disclosures of any significance were made, there are no grounds to disqualify the witness. (Id.)

The party seeking disqualification must show that the proposed expert was given confidential attorney-client information materially related to the proceedings before the court. ;(Id. at 1085.) ;The party is not required to disclose the actual information contended to be confidential. ;(Id.) The party should, however, provide sufficient information to the court regarding the nature of the information and the materiality of its relationship to the proceeding. ;(Id.) ;Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment. ;(Id.) ;The presumption is a rule by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversary’s attorneys and legal staff. ;(Id.) ;

The rebuttable presumption rule detailed in Shadow Traffic does not apply in situations where the expert has remained under the control of the moving party. (See Collins v. State of California (2004) 121 Cal.App.4th 1112, 1129.) Here the proposed expert has not worked for and therefore is not presumed to be within the control of the moving party since 2019.

Beyond Meat’s Evidence

Beyond Meat argues that Dr. Zink must be disqualified as an expert witness in this action because he received confidential information from Beyond Meat’s counsel in connection to central issues in this litigation. Beyond Meat contends that Dr. Zink and his employer IEH Laboratories and Consulting Group (“IEH”) served as privileged, third-party consultants of Beyond Meat and its prior counsel of record, Covington and Burling LLP (“Covington”), concerning issues at the heart of the present case. (Motion 5:12-5:15.) Beyond Meat further argues that DLF and its counsel knew or should have known of IEH’s extensive consulting work with Beyond Meat and Covington in this case, citing to the subpoena responded to IEH by Beyond Meat and IEH’s privilege logs, which evidence the withholding of evidence by IEH based upon such privilege. (Declaration of Laura R. Washington (“Washington Decl,”), Exhibit 4.)

Beyond Meat presents evidence that Dr. Zink and IEH began consulting with Beyond Meat and its former counsel of record in connection with this case in 2017, and that it continued providing such consulting services through 2019. (Motion 8:15-8:16.) According to Beyond Meat, after it was notified in 2017 of numerous alleged breaches of the Contract, including bacteria contamination, Beyond Meat entered into a consulting arrangement with IEH to conduct food safety assessments of DLF’s manufacturing facility and to advise Beyond Meat accordingly. (See Motion 7-8.) Covington separately engaged IEH to provide privileged consulting advice regarding the nascent dispute with DLF. (Motion 7:14-15; Declaration of Jessica O’Connell (“O’Connell Decl.”) ¶ 7.)

From April 2017 through September 2019, IEH, including Dr. Zink, communicated extensively with Beyond Meat and Covington on critical issues including: analyzing food safety issues, the validity of lethality steps used in manufacturing Beyond Meat’s products at DLF’s facilities, the adequacy of the corrective action plan submitted by DLF before Beyond Meat terminated the Contract, and bacteria discovered at a DLF facility, including research and investigation of the specific strains at issue, all of which have arisen as issues in this lawsuit. (Motion 8:17-8:25.)

As an example of the privileged nature of its work with IEH and Dr. Zink, Beyond Meat provides evidence that in May 2017, after receiving DLF’s corrective action plan in response to Beyond Meat’s concerns about contamination, Beyond Meat’s counsel forwarded the proposed corrective action plan to Dr. Zink, seeking his advice regarding the adequacy of the proposal. (O’Connell Decl. ¶ 9, Exhibit 14.)

Throughout the duration of the consultancy, IEH and Dr. Zink provided privileged and confidential advice concerning food safety issues central to this case. (Motion 9:16-18; O’Connell Decl. ¶ 12.) They sent dozens of written communications to Covington, most of which included the labels “Privileged,” “Attorney-Client Communication” or “Attorney Work Product.” (O’Connell Decl. ¶ 11; Declaration of Neema Sahni (“Sahni Decl.”) ¶¶ 9-10.) IEH indicated that it understood that its work was privileged and/or protected by the attorney work product doctrine. (Sahni Decl. ¶ 9.) In August 2019, Dr. Zink specifically advised Covington attorney Neema Sahni on issues relevant to the breach of contract claim in an email chain with the subject line “Attorney-Client Privileged Communication.” (Sahni Decl. ¶ 10.)

After receiving an updated privilege log, Edward Lee, an attorney for one of DLF’s law firms, Loeb & Loeb LLP (“Loeb”), wrote to IEH’s in-house counsel regarding the 129 communications listed on the privilege log; however, DLF never challenged the privilege or moved to compel IEH to produce the documents. (See Motion 10:8-10:16; Sahni Decl. ¶ 8, Exhibit 11; O’Connell Decl. ¶ 13.)

Upon learning that DLF had retained Dr. Zink as an expert, Laura Washington, a partner at Beyond Meat’s law firm, Latham & Watkins, LLP, informed DLF’s counsel at Loeb on August 10, 2021 that Dr. Zink had performed privileged work for Beyond Meat relating to this litigation and demanded the return of all confidential documents and the withdrawal of Dr. Zink as an expert. (Motion p. 11; Washington Decl. ¶ 7, Ex 7.) DLF’s counsel did not respond until August 15, 2021, but on August 13, 2021, DLF associated in the law firm of Hueston Hennigan LLP (“Hueston”) as counsel of record. (Motion 11:18-11:19.) On August 15, 2021 Daniel Platt of Loeb informed Ms. Washington that he was unaware of privileged communications between Dr. Zink and Covington because Beyond Meat had never produced a privilege log to that effect. (Washington Decl. ¶¶ 12-13, Exhibit 8.)

DLF’s Opposition

In its opposition (the “Opposition”), DLF argues that Beyond Meat failed to show that Dr. Zink ever had access to or was consulted on information that is materially related to the forthcoming trial. (Opposition 8:23-8:24.) DLF reiterates its position that Dr. Zink’s name does not appear in the privilege logs provided to DLF by IEH during earlier discovery disclosures. DLF also asserts that whatever information Dr. Zink had that was protected is no longer protected because Beyond Meat waived the privilege by disclosing certain communications it shared with IEH and by identifying IEH as a fact witness in its discovery disclosures. (See Opposition 9:23.) DLF characterizes the majority of the information exchanged between Beyond Meat and IEH and Dr. Zink as fact-based. (9:8-9:22.)

In support of their argument that Dr. Zink did not participate in or consult on matters materially related to the trial, DLF provides the Declaration of Dr. Zink (“Zink Decl.”) wherein he declares that when DLF retained him as an expert witness in July 2021, he did not recall working on projects for Beyond Meat in 2017. (Zink Decl. ¶ 5.) He further declares that to the extent that he was copied on emails with Beyond Meat in 2017, he was not one of the primary IEH employees working on the project, nor was he ever exposed to discussions regarding litigation strategy. (Zink Decl. ¶ 6.) Since his retention as an expert for DLF, he has not communicated with IEH colleagues about work they have done for Beyond Meat and he has not provided any documents to DLF’s counsel. (Zink Decl. ¶ ¶ 8-9.)

DLF argues that the rebuttable presumption analysis does not apply to the facts of this case because Beyond Meat has the ability to take Dr. Zink’s deposition. (Opposition 10:14-10:23.) Beyond Meat has, however, provided evidence that although Dr. Zink’s deposition was set to be taken before the hearing on this Motion, DLF objected to the taking of his deposition and has not given a new date for his deposition. (Declaration of Tiffany Ikeda.)

DLF further argues that even if the presumption does apply, DLF has adequately rebutted it because Dr. Zink declared that he did not provide confidential information to DLF’s attorneys, who have similarly declared that they have not received any confidential information from Dr. Zink. (Opposition 11:12-12:10.) DLF asserts that its attorneys took good faith precautions when hiring Dr. Zink as their expert, including having IEH run a conflict check before they retained him. (Opposition 13:23-13:24; Swaim Decl. ¶ 3.) DLF further notes that the privilege logs provided to them by IEH do not specifically list Dr. Zink as a correspondent related to any of the documents, so they were not on notice of his specific involvement in the case. (Opposition 5:1-5:6.)

DLF provides the declarations of: (1) Daniel A. Platt, a partner at Loeb (“Platt Decl.”); (2) Jolyda O. Swaim, a partner at another DLF law firm, Olsson Frank Weeda Terman Matz PC (“Olsson”) (“Swaim Decl.”); (3) and Moez M. Kaba, a partner at Hueston (“Kaba Decl.”). According to the declarations, Ms. Swaim hired Dr. Zink after he informed her that he did not recall working for Beyond Meat and after he was cleared by a background check conducted by IEH. (Swaim Decl. ¶ 3.) Ms. Swaim declares Dr. Zink has not shared any documents, analyses, communications or information related to Beyond Meat with her. (Swaim Decl. ¶ 5.) Ms. Swaim believes that no other attorney has communicated with Dr. Zink or IEH on behalf of DLF and declares that no other attorney at Olsson had any such communications. (Swaim Decl. ¶ 7.) Ms. Swaim also declares that she did not share any written or oral attorney work product or analysis with Loeb or Hueston after first contacting Dr. Zink, July 29, 2021. (Swaim Decl. ¶ 8.)

Mr. Platt declares that he has never communicated directly or indirectly with Dr. Zink and that to his knowledge that is true of the rest of the attorneys at his firm. He further declares that neither he nor any other attorneys at Loeb who have billed time on this case have had substantive discussions with Ms. Swaim related to Dr. Zink or his testimony. (Platt Decl. ¶¶ 2-3.)

Mr. Kaba declares that he has never communicated directly or indirectly with Dr. Zink and that to his knowledge, this is true for each attorney from his firm who has billed time on this case. (Kaba Decl. ¶ 2.) Similarly, he declares that neither he nor any attorney who has billed time on this case has seen work product created by or related to Dr. Zink. (Kaba Decl. ¶ 3.) His declaration further states that neither he nor any attorney who has billed time on this case at Hueston has communicated with Ms. Swaim about Dr. Zink, other than limited correspondence related to preparing the Opposition to the Motion. (Kaba Decl. ¶ 3.)

Disqualification of Dr. Zink

The Court finds that Beyond Meat has provided sufficient evidence that Dr. Zink should be disqualified as an expert witness. Beyond Meat presented evidence of Dr. Zink’s involvement with Beyond Meat on matters relevant to and privileged in the present case starting in 2017 and as recently as 2019. (See Sahni Decl. ¶¶ 10-11.) The Court agrees that Dr. Zink’s failure to remember any confidential, privileged work he may have done for Beyond Meat between 2017 and 2019 is insufficient to show that he did not possess or share privileged information, or that his memory might be refreshed at some point. Notably, his declaration focuses on the year 2017 despite evidence that he did consultant work with Beyond Meat as recently as 2019. Beyond Meat has also provided sufficient evidence that Dr. Zink consulted on matters critical to the litigation, including the source of the Salmonella contamination, the lethality steps DLF used to manufacture Beyond Meat’s products and the adequacy of DLF’s correction plan. (See Reply 5:14-5:20.) In fact, Dr. Zink was retained to address topics that directly relate to his consulting work with Beyond Meat, including: (1) the protocols for and accuracy of testing of products and environments for pathogens and other contamination as it relates to its manufacturing of food; and (2) potential commentary on, and rebuttal of, any testimony or evidence offered by Beyond Meat’s witnesses or experts relating to the above subjects. (Motion 10:17-10:24.) Additionally, Beyond Meat’s listing of IEH generally as a percipient witness does not indicate that it waived any privilege regarding their specific interactions with Dr. Zink in a consultant capacity. Finally, DLF’s subpoenaing of IEH’s documents indicates that DLF was aware that the company for which Dr. Zink worked and for which he was a senior officer in the very area for which Beyond Meat had consulted it indicates that DLF knew or should have known that Dr. Zink had access to privileged information regarding IEH’s work for Beyond Meat.

Moreover, as the court found in Shadow Traffic, regardless of whether Dr. Zink intentionally disclosed privileged information, DLF could still obtain the “benefit of the information” because Dr. Zink’s knowledge of the information, consciously or unconsciously, could affect his analysis of the issues about which he was being asked to testify.

The Court disqualifies Dr. Zink from serving as an expert on behalf of DLF.

Disqualification of DLF’s Counsel

The Court finds that the Shadow Traffic rebuttable presumption analysis applies to the facts of this case. Dr. Zink has not worked with Beyond Meat since 2019. Therefore, he is not still within the “control” of Beyond Meat such that the rebuttable presumption analysis would not apply. In addition, DLF’s witness disclosure directed Beyond Meat not to directly contact Dr. Zink. (Washington Decl., Exhibit 5.)

The alignment with the topics as to which Dr. Zink was designated to testify and the subjects he provided consultancy work for make it likely that Dr. Zink discussed these topics with Ms. Swaim in connection with his retention. The Court therefore finds it appropriate to disqualify Ms. Swain from representing DLF.

The Court does, however, find that DLF has rebutted the presumption of imputed knowledge with respect to the attorneys who have billed on this matter at Loeb and Hueston. Ms. Swaim declared that to the best of her knowledge, she is the only person who has communicated with Dr. Zink or IEH on behalf of DLF and that she has not shared any written or oral work product or analysis with Loeb or Hueston since making contact with Dr. Zink on July 29, 2021. (Swaim Decl. ¶¶ 7-8.) This evidence was also supported by the declarations of Messrs. Kaba and Platt. The Court therefore DENIES Beyond Meat’s Motion insofar as it relates to all attorneys other than Ms. Swaim.

CONCLUSION

The Court GRANTS in part and DENIES in part the Motion to disqualify counsel and an expert witness. Dr. Zink is ordered disqualified as an expert witness and Ms. Swaim is ordered disqualified as counsel for DLF.

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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Although the Motion originally sought the disqualification of all three law firms representing DLF, the Reply clarified that only the attorneys who billed hours on the case were sought to be disqualified. (Beyond Meat’s Reply (the “Reply”) 11:11-11:13.)

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Case Number: ****2838 Hearing Date: August 27, 2021 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, a division of GOODMAN FOOD PRODUCTS, INC.,

Plaintiff,

vs.

BEYOND MEAT, INC. d/b/a BEYOND MEAT; PROPORTION FOODS, LLC; MARK NELSON; JESSICA QUETSCH; ANTHONY MILLER; and DOES 1 through 10, inclusive,

Defendants.

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CASE NO.: ****2838

[TENTATIVE] ORDER RE: DEFENDANT-CROSS-COMPLAINANT BEYOND MEAT, INC.’S MOTION FOR SUMMARY ADJUDICATION

Dept. 56

8:30 a.m.

August 27, 2021

MOVING PARTY: Defendant-Cross-Complainant Beyond Meat, Inc. d/b/a Beyond Meat

RESPONDING PARTY: Plaintiff-Cross-Defendant Don Lee Farms, a division of Goodman Food Products, Inc.

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

BACKGROUND

On May 25, 2017, Plaintiff Don Lee Farms, a division of Goodman Food Products, Inc. filed this action against Defendants Beyond Meat, Inc. (“Beyond Meat”) and Proportion Foods, LLC arising out of the alleged misappropriation of Plaintiff’s trade secrets and disclosure of those trade secrets to Plaintiff’s competitors. On March 11, 2019, Plaintiff filed a second amended complaint adding causes of action of fraud and negligent representation against Beyond Meat. The operative Third Amended Complaint (“TAC”), filed on January 27, 2020, asserts causes of action for: (1) breach of contract; (2) declaratory relief; (3) misappropriation of trade secrets; (4) money owed and due; (5) unfair competition under California Business & Professions Code ;; 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 June 11, 2021, Beyond Meat filed the instant motion for summary adjudication as to the third, fifth, ninth and tenth causes of action raised in the TAC. Plaintiff opposes.

Evidentiary Objections

The Court OVERRULES Plaintiff’s objections to evidence submitted by Beyond Meat in support of its motion for summary adjudication numbers: 1-9, 11-29 The Court SUSTAINS Plaintiff’s objections to evidence submitted by Beyond Meat in support of its motion numbers: 10.

The Court OVERRULES Beyond Meat’s objections to Plaintiff’s evidence in support of its opposition to Beyond Meat’s motion in its entirety. The Court OVERRULES Beyond Meat’s objection to Plaintiff’s late filed separate statement.

Request for Judicial Notice

The Court OVERRULES Plaintiff’s objection to Beyond Meat’s request for judicial notice.Beyond Meat’s Request for Judicial Notice is GRANTED as to all exhibits, but not for the truth of the matters asserted therein. (Evid. Code ; 452(h); In re Elizabeth M. (2018) 19 Cal. App. 5th 768, 787, fn.14.)

DISCUSSION

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc. ; 437c(p)(2).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the causes of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. ; 437c(p)(2).) By contradicting prior discovery responses, a party cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.) The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.” (Id. at 1087.) “Summary adjudication motions are procedurally identical to summary judgment motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) “To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the action has no merit or that there is no defense.” (Id.) “[T]he moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.) “When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Id.) “If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.” (Id.)

Issue No. 1: Third Cause of Action – Misappropriation of Trade Secrets

Beyond Meat argues that Plaintiff’s misappropriation of trade secrets cause of action has no merit because Plaintiff cannot establish that it has protectable trade secrets, has ownership over the alleged trade secrets or did not authorize the use or disclosure of those alleged trade secrets.

“A cause of action for misappropriation of trade secrets requires a plaintiff to show the plaintiff owned the trade secret; at the time of misappropriation, the information was a trade secret; the defendant improperly acquired, used, or disclosed the trade secret; the plaintiff was harmed; and the defendant’s acquisition, use, or disclosure of the trade secret was a substantial factor in causing the plaintiff harm.” (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 942.)

Beyond Meat presents evidence that: (1) the nine Beyond Meat products as to which Plaintiff claims to have developed trade secrets in connection to the manufacturing processes were developed before Plaintiff’s involvement (UMF Nos. 15, 19, 23, 26, 35, 50, 57); (2) the alleged trade secrets were developed during the course of Plaintiff’s contractual relationship with Beyond Meat (UMF No. 72); (3) the alleged trade secrets lack independent economic value outside of Plaintiff’s contractual relationship with Beyond Meat (UMF Nos. 1-2); (4) during their contractual relationship, Beyond Meat provided Plaintiff with procedures to Plaintiff for each product at issue (UMF Nos. 18, 22, 25, 27, 38, 51, 54, 60); (5) Plaintiff made slight alterations to these procedures (UMF Nos. 3, 4, 9, 16, 20, 24, 33, 36, 59); (6) as to each product, Beyond Meat developed and manufactured them prior to the contractual relationship with Plaintiff (UMF Nos. 15-18, 20-23, 25-26, 29, 30, 34-39, 40, 43, 46-47, 51-55, 57-59, 67-70); (7) Plaintiff’s Non-Disclosure Agreement only protected “presently owned” confidential information, and any alleged trade secrets were developed during the course of Plaintiff’s contractual relationship with Beyond Meat (UMF Nos. 11, 72); (8) Beyond Meat maintained final authority over the implementation of all procedures relating to the production of its products (UMF Nos. 1, 28, 39, 52, 54, 66, 70); and (9) some products were discontinued prior to the end of Plaintiff’s contractual relationship with Beyond Meat. Also, Beyond Meat argues that it is Plaintiff’s burden to prove the use or disclosure of the alleged trade secrets was unauthorized. (Motion at pg. 22, relying on Sargent Fletcher v. Able Corp. (2003) 110 Cal. App. 4th 1658, 1667.)

Based on the evidence presented, the Court finds that Beyond Meat has met its burden in showing that there is no triable issue of material fact with respect to Plaintiff’s misappropriation of trade secrets claim. The burden now shifts to Plaintiff to show that a triable issue of material fact exists.

In its opposition, Plaintiff contends that the alleged trade secrets were “the creation and result of years. . . of proprietary knowledge developed by [Plaintiff].” (Opposition at pg. 16, relying on San Jose Construction, Inc. v. S.B.C.C. Inc. (2007) 155 Cal.App.4th 1528, 1538.) It is upon this basis that Plaintiff claims that the alleged trade secrets have independent economic value. This contention, however, does not comport with Plaintiff’s previous verified discovery response where it admitted that the alleged trade secrets were developed during Plaintiff’s contractual relationship with Beyond Meat. (UMF No. 72.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459.) Thus, it is improper for Plaintiff to redefine what constitutes its alleged trade secrets at the summary judgment stage. (Coast Hematology-Oncology Assocs. Med. Grp., Inc. v. Long Beach Med. Ctr., (2020) 58 Cal. App. 5th 748, 758-760.)

It is further noted that Plaintiff has failed to provide any evidence of independent economic value other than its assertion of years of past development. Because Plaintiff improperly relies on its years of past development as a basis for its misappropriation of trade secrets claim, Plaintiff is unable to otherwise show that its trade secrets have independent economic value. Therefore, Plaintiff has failed to meet its burden in showing that there is a triable issue of material fact with respect to the third cause of action for misappropriation of trade secrets.

Accordingly, the Court GRANTS Beyond Meat’s motion for summary adjudication as to the third cause of action for misappropriation of trade secrets.

Issue No. 2: Fifth Cause of Action – Violation of Business & Professions Code ; 17200, et seq.

Beyond Meat argues that Plaintiff’s unfair competition claim is preempted by the California Uniform Trade Secret Act because this cause of action relies on the “same nucleus of [f]acts as [a] misappropriation of trade secrets claim.” (Motion at pg. 23, relying on Digit. Envoy, Inc. v. Google, Inc. (N.D. Cal. 2005) 370 F. Supp. 2d 1025, 1035; K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc. (2009) 171 Cal. App. 4th 939, 958.) Notably, Plaintiff’s opposition is silent as to this issue.

Accordingly, the Court GRANTS Beyond Meat’s motion for summary adjudication as to the fifth cause of action because it has been preempted.

Issue Nos. 3 and 4: Ninth and Tenth Causes of Action

Beyond Meat also moves for summary adjudication as to the ninth and tenth causes of action of the TAC. It argues that there is no evidence of fraudulent intent and that Plaintiff has not been damaged by the purported fraud.

To succeed on a claim for fraud, a plaintiff must satisfy all of the following elements: (1) misrepresentation of a past or existing material fact; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)

The elements of negligent misrepresentation are “(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

Beyond Meat presents evidence that: (1) Plaintiff lacks evidence showing that Beyond Meat or its employees possessed any fraudulent intent to engage in any fraudulent conduct (UMF Nos. 76, 78, 81); and (2) Plaintiff has not suffered any damages because it had increased its profits through the contractual relationship with Beyond Meat (UMF No. 86).

Based on the evidence presented, the Court finds that Beyond Meat has met its burden in showing that there is no triable issue of material fact with respect to Plaintiff’s fraud and negligent misrepresentation claims. The burden now shifts to Plaintiff to show that a triable issue of material fact exists.

In its opposition, Plaintiff asserts that Beyond Meat engaged in active concealment of material portions of the TAG audit report to induce Plaintiff to rely on the altered audit report. (PUMF Nos. 186-189, 192, 193, 199, 200, 236.) In terms of damages, Plaintiff contends that, due to the concealment of the audit report, Plaintiff relocated the production of Beyond Meat products to its Mansfield, Texas facility (PUMF Nos. 196, 200, 202, 203-207, 209-211.) Also, when a third-party inspector hired by Beyond Meat identified Salmonella at the facility, it was forced to incur costs to remedy the issue. (PUMF Nos. 212-214.) Moreover, Plaintiff contends that it was damaged further because it lost other business opportunities in order to continue its contractual relationship with Beyond Meat. (PUMF Nos. 215.) As such, the Court finds that Plaintiff has met its burden.

Because there exist triable issues of fact as to the fraudulent intent of Beyond Meat and that Plaintiff has incurred damages, the Motion for Summary Adjudication as to the ninth and tenth causes of action is DENIED.

CONCLUSION

The Court GRANTS in part Beyond Meat’s Motion for Summary Adjudication as to the third and fifth causes of action and DENIES it in part as to the ninth and tenth causes of action.

Beyond Meat is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT56@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 27th day of August 2021

Hon. Holly J. Fujie

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DON LEE FARMS, a division of GOODMAN FOOD PRODUCTS, INC.,

Plaintiff,

vs.

BEYOND MEAT, INC. d/b/a BEYOND MEAT; PROPORTION FOODS, LLC; MARK NELSON; JESSICA QUETSCH; ANTHONY MILLER; and DOES 1 through 10, inclusive,

Defendants.

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CASE NO.: ****2838

[TENTATIVE] ORDER RE: DEFENDANTS MARK NELSON, JESSICA QUETSCH, AND ANTHONY MILLER’S MOTION FOR SUMMARY JUDGMENT

Dept. 56

8:30 a.m.

August 27, 2021

MOVING PARTY: Defendants Mark Nelson, Jessica Quetsch and Anthony Miller

RESPONDING PARTY: Plaintiff-Cross-Defendant Don Lee Farms, a division of Goodman Food Products, Inc.

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

BACKGROUND

On May 25, 2017, Plaintiff Don Lee Farms, a division of Goodman Food Products, Inc. filed this action against Defendants Beyond Meat, Inc. (“Beyond Meat”) and Proportion Foods, LLC arising out of the alleged misappropriation of Plaintiff’s trade secrets and disclosure of those trade secrets to Plaintiff’s competitors. Thereafter, on March 11, 2019, Plaintiff filed a second amended complaint adding causes of action for fraud and negligent representation against Beyond Meat. The operative Third Amended Complaint (“TAC”), filed on January 27, 2020, asserts causes of action for: (1) breach of contract; (2) declaratory relief; (3) misappropriation of trade secrets; (4) money owed and due; (5) unfair competition under California Business & Professions Code ;; 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 TAC, names Mark Nelson, Jessica Quetsch and Anthony Miller as defendants and alleges a cause of action of fraud against them.

On June 11, 2021, Defendants Mark Nelson, Jessica Quetsch, and Anthony Miller (“Individual Defendants”) filed the instant motion for summary judgment as to the ninth cause of action raised in the TAC. Plaintiff opposes.

Evidentiary Objections

The Court OVERRULES Plaintiff’s objections to evidence submitted by the Individual Defendants in support of their motion for summary judgment in its entirety.

The Court OVERRULES the Individual Defendants objections to Plaintiff’s evidence in support of its opposition to the Individual Defendant’s motion in its entirety.

DISCUSSION

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc. ; 437c(p)(2).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the causes of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. ; 437c(p)(2).) By contradicting prior discovery responses, a party cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.) The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.” (Id. at 1087.) “Summary adjudication motions are procedurally identical to summary judgment motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) “To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the action has no merit or that there is no defense.” (Id.) “[T]he moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.) “When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Id.) “If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.” (Id.)

Issue No. 1: Ninth Cause of Action – Fraud

The Individual Defendants move for summary judgment as to the ninth cause of action raised in the TAC. They argue that there is no evidence of fraudulent intent, of damages, or of oppression, fraud, or malice by the Individual Defendants.

To succeed on a claim for fraud, a plaintiff must satisfy all of the following elements: (1) misrepresentation of a past or existing material fact; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)

The Individual Defendants present evidence that it was Jessica Quetsch’s intent to provide Plaintiff with the information from the audit, not to defraud Plaintiff. (UMF Nos. 1, 3-5). They also argue that Plaintiff lacks evidence to show that Anthony Miller intended to defraud Plaintiff, but rather, his intent was to protect Beyond Meat’s confidential and proprietary information. (UMF Nos. 2, 7-9.) In addition, they claim that Mark Nelson had no intention of defrauding Plaintiff, and that there is no evidence suggesting that he edited the report or sent it to Plaintiff. The Individual Defendants also argue that Plaintiff has not suffered any damages because Plaintiff profited due to its reliance on the audit report. (UMF Nos. 12, 14-15.) Furthermore, Individual Defendants argue that there is insufficient evidence to support an award of punitive damages because the information removed from the audit report was not intended to harm or mislead Plaintiff but to protect Beyond Meat’s confidential information. (UMF Nos. 16, 17, 19-24.) Thus, the Individual Defendants reason that there is no evidence to suggest they acted maliciously or oppressively. [1]

Based on the evidence presented, the Court finds that the Individual Defendants have met their burden in showing that there is no triable issue of material fact with respect to Plaintiff’s fraud claim as to them. The burden now shifts to Plaintiff to show that a triable issue of material fact exists.

In opposition, Plaintiff argues that the Individual Defendants intended to induce Plaintiff to rely on the edited audit report, which concealed material information. (PUMF Nos. 25, 27, 36-37, 47. This information was material to Plaintiff because it would have impacted whether Plaintiff would continue with its contractual relationship with Beyond Meat. (PUMF Nos. 25, 48.) Plaintiff rejects the contention that the Individual Defendants merely edited the audit report to protect Beyond Meat’s confidential information. (PUMF Nos. 32-33, 40, 45, 55.) Furthermore, Plaintiff asserts that the Individual Defendants engaged in fraudulent concealment, as evidenced by various email exchanges. (PUMF Nos. 30, 34, 37-38.) Plaintiff argues that the Individual Defendant intended to induce reliance from Plaintiff through their fraudulent concealment of material portions of the audit report. (PUMF Nos. 49, 54, 55, 56.) This resulted in actual reliance, according to Plaintiff, in that it would not have expanded its contractual relationship with Beyond Meat had it been aware of the concealed portions of the audit report. (PUMF Nos. 51-54 and 57.) Moreover, Plaintiff asserts that this reliance was reasonable because it had no reason to believe that the Individual Defendants would have concealed certain findings made in the audit report. (PUMF Nos. 41-43, 46, 58.)

In terms of damages, Plaintiff contends that, due to the concealment of the audit report, Plaintiff relocated the production of Beyond Meat products to its Mansfield, Texas facility. (PUMF Nos. 59-61.) Also, when a third-party inspector hired by Beyond Meat identified Salmonella at the facility, it was forced to incur costs to remedy the issue. (PUMF Nos. 63-64.) Plaintiff further contends that it was damaged because it lost other business opportunities in order to continue its contractual relationship with Beyond Meat. (PUMF Nos. 65.) Lastly, as to the issue of punitive damages, Plaintiff reasons that fraud is an adequate basis for awarding punitive damages. (Opposition at pg. 22, relying on Las Palmas Association v. Las Palmas Center Association (1991) 235 Cal.App.3d 1220, 1239.) Based on the evidence provided by Plaintiff, the Court finds that Plaintiff has met its burden in showing that there is a triable issue of material fact with respect to the ninth cause of action as it applies to the Individual Defendants.

CONCLUSION

Because there exist triable issues of fact as to whether the Individual Defendants engaged in fraudulent conduct, the Motion for Summary Judgement is DENIED.

The Individual Defendants are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT56@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 27th day of August 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] While the Individual Defendants further claim that Plaintiff is pleading inconsistent remedies, this is not a basis to grant summary judgment. (Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071.)

"


Case Number: ****2838    Hearing Date: May 7, 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.: ****2838

[TENTATIVE] ORDER RE: MOTIONS FOR SUMMARY ADJUDICATION

Date: May 7, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiff and Cross-Defendant Don Lee Farms (“DLF”); Cross-Defendants Donald Goodman, Daniel Goodman, and Brandon Goodman (the “Goodmans”)

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

The Court has considered the moving, opposition, and reply papers as to both motions.

BACKGROUND

DLF filed the operative Third Amended Complaint (“TAC”) which arises from an alleged breach of an Exclusive Supply Agreement (the “ESA”). 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 Bus. & Prof. Code ; 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.

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 Motions

Two separate motions for summary adjudication were filed. The Court will address both motions in this ruling.

On January 28, 2021, DLF filed a motion[1] (the “Motion”) for summary adjudication on: (1) DLF’s first cause of action for breach of contract, count three—failure to pay invoices; (2) DLF’s fourth cause of action for money owed and due—common count; (3) the second cause of action asserted in the FAXC for breach of contract—supply agreement; and (4) the third cause of action asserted in the FAXC for breach of contract—NDA.

On February 18, 2021, DLF and the Goodmans (collectively, “Cross-Defendants”) filed a motion (the “2d Motion”)[2] for summary adjudication as to: (1) the fifth cause of action asserted in the FAXC; (2) BMI’s claim for punitive damages in the FAXC; (3) the sixth cause of action for negligent misrepresentation asserted in the FAXC; and (4) BMI’s tenth cause of action in the FAXC for conversion.

EVIDENTIARY OBJECTIONS AS TO THE MOTION

The Court SUSTAINS the evidentiary objections of BMI numbers 1-9, 12, 14-16, 18-19, 23, and 32-47 to the evidence submitted by DLF in support of the Motion.

The Court OVERRULES the evidentiary objections of BMI numbers 10-11, 13, 17, 20-22, and 24-31 to the evidence submitted in support of the Motion.

The Court OVERRULES the evidentiary objections of DLF numbers 4 and 9-10 to the evidence submitted in opposition to the Motion. The Court SUSTAINS the evidentiary objections of DLF numbers 1-3, 5-8, and 11-31 thereto.

EVIDENTIARY OBJECTIONS AS TO THE 2d MOTION

The Court SUSTAINS the evidentiary objections numbers 1-54, 66, 69-70, and 72-74 of BMI to the evidence submitted in support of the 2d Motion and OVERRULES the evidentiary objections of BMI numbers 55-65, 67-68, and 71 thereto.

The Court SUSTAINS the evidentiary objections numbers 1-10, 13-15, 17-20, 26-58, 60-70, and 83-87 of Cross-Defendants to the evidence submitted in opposition to the 2d Motion and the Court OVERRULES Cross-Defendants’ evidentiary objections numbers 11-12, 16, 21-25, 59, and 71-82 thereto.

JUDICAL NOTICE

The Court GRANTS DLF’s request for judicial notice.

DISCUSSION AS TO THE MOTION

Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) The moving party’s affidavits are strictly construed while those of the opposing party are liberally construed. (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.)

A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. ; 437c(p)(2).) Summary adjudication motions are procedurally identical to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) An issue of fact cannot be created by speculation, conjecture, imagination or guesswork. (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) Summary adjudication will only be granted as to a cause of action if it completely disposes of a cause of action under Code Civ. Proc. ; 437c(f)(1).

Issue No.1: Defects in the Separate Statement of BMI

In its reply brief, DLF contends that BMI’s separate statement in opposition to the Motion does not comply with Cal. Rules of Court, Rule 3.1350(f)(3)[3] and therefore the Motion should be granted on such grounds.

Cal. Rules of Court, Rule 3.1350(f)(2) states that a separate statement in opposition to a motion for summary adjudication must unequivocally state whether that fact is disputed or undisputed. A party’s failure to comply with the separate statement requirement of the California Rules of Court makes the trial court’s task substantially more difficult and constitutes a sufficient ground for the court to exercise its discretion and grant a motion for summary adjudication. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1415, fn.6.)

The Court finds that BMI’s separate statement in opposition to the Motion is not in compliance with Cal. Rules of Court, Rule 3.1350(f)(2) because numerous times therein BMI does not unequivocally state whether a fact is disputed or undisputed. At multiple points throughout the separate statement, BMI states that a fact is both undisputed and disputed. Given the fact that the Motion seeks to dispose of claims and crossclaims, the Court exercises its discretion and will not decide the Motion on the basis of BMI’s defective separate statement. The Court will assess the Motion on its merits.

Issue No.2: DLF’s First Cause of Action

DLF contends that it is entitled to summary adjudication on its first cause of action—count three[4]—for failure to pay invoices because there is no triable issue of fact controverting that BMI breached the parties’ contractual agreement by failing to pay balances due on invoices for product manufactured for, delivered to, and accepted by BMI. BMI asserts that DLF is not entitled to summary adjudication on its first cause of action, count three because there is a dispute of material fact as to whether DLF fully performed; BMI asserts that DLF did not fully perform because it did not deliver products that were not adulterated under 21 U.S.C. ; 342(a)(4). BMI also contends that summary adjudication is not proper on such count because DLF cannot establish damages with reasonable certainty.

To state a cause of action for breach of contract, a plaintiff must show the following elements: (1) the contract; (2) plaintiff’s performance; (3) defendant’s breach; and (4) damage to plaintiff. (McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) Summary adjudication is proper where a plaintiff shows that monies due under a contract were not paid to the non-breaching party. (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 645.) 21 U.S.C. ; 342(a)(4) provides that a food shall be deemed adulterated if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.

DLF’s Evidence

DLF presents the undisputed facts that: (1) paragraph 15 of the ESA states that any failure of BMI to pay any or all monies due to DLF would constitute a material breach thereof; and (2) the ESA is a contract supported by mutual consideration (SS at 2-5 and 9.) DLF also presents evidence that: (1) BMI submitted Purchase Orders (“POs”); (2) DLF shipped products in response to the POs submitted by BMI, and that BMI failed to pay for products shipped to it by DLF (Mockenhaupt Decl. at ¶¶ 6-7, 9); (3) the products shipped to BMI tested negative for any pathogens including salmonella and listeria (Id. at ¶ 10); and (4) the POs for which BMI failed to pay tested negative for pathogens (Id. at ¶ 12).

BMI’s Evidence

BMI does not present sufficient admissible evidence to raise a triable issue of material fact as to whether the products that were invoiced—and that DLF alleges are unpaid and at issue in the Motion—were somehow adulterated. Moreover, the evidence cited in BMI’s opposition to the Motion does not stand for the proposition which BMI advances.

Analysis

The ESA provides that DLF would comply with all applicable state, federal, and local laws, regulations, ordinances, and rules, including those promulgated by the United States Food and Drug Administration (the “FDA”) by ensuring that such products were not adulterated (the “Product Warranty”). (D. Goodman Decl., Exhibit 1 at ; 2.1.) The ESA provides that the sole remedy for breach of the Product Warranty would be either: (1) repayment of the purchase price; or (2) replacement of product at the option of DLF (Id. at ; 2.2). The Court finds that BMI has not presented sufficient admissible evidence to raise a triable issue of material fact as to whether DLF fully performed. BMI cannot create a triable issue of material fact based on conjecture, speculation, or guesswork under Sinai Memorial.

BMI further contends that there is a triable issue of fact as to damages because it requires an assessment of whether the product associated with each invoice was adulterated and whether DLF or BMI is responsible for such costs. The Court finds that BMI’s citation to Brown v. Grimes (2011) 192 Cal.App.4th 265 is inapposite. The Court finds that there is no triable issue as to damages given that DLF has presented evidence of the exact amount owed to it by BMI as to the invoices. Also, Civ. Code ; 3289(a) provides that any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. Here, the invoices provide for a definite interest rate of 18% per annum. Therefore, damages are definite, and a triable issue of material fact does not exist as to damages. BMI’s damages argument is premised on a finding that there exists a triable issue of material fact as to DLF’s performance which, as stated above, does not exist.

The Court therefore finds that DLF is entitled to summary adjudication as to issue number one in the Motion. The Court GRANTS DLF’s request for summary adjudication as to the first cause of action, count three in the TAC.

Issue No.3: Fourth Cause of Action

The only essential allegations of a common count are: (1) the statement of indebtedness in a certain sum; (2) the consideration; and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The Court incorporates its recitation of evidence and analysis as to the first cause of action and applies such analysis and recitation to the fourth cause of action in the TAC for common count. BMI’s argument as to the fourth cause of action is identical to its argument as to the first cause of action. DLF has presented evidence that no triable issue of material fact exists as to its fourth cause of action for common count. BMI, however, has failed to present admissible evidence that a triable issue of material fact exists as to any element needed to state a claim for common count under Farmers.

The Court therefore GRANTS the request of DLF for summary adjudication as to issue number two in the Motion.

Issue No.4: Second Cause of Action in the FAXC

DLF contends that it is entitled to summary adjudication as to the second cause of action in the FAXC for breach of supply agreement because: (1) BMI cannot meet its burden of proving that it performed under the ESA; and (2) BMI cannot show that it was damaged as a result of any alleged breach of the Product Warranty. Specifically, DLF asserts that BMI failed to perform a condition precedent of the ESA because it failed to provide sufficient written notice of an alleged breach and a 30-day opportunity to cure.

Civ. Code ; 1436 provides that a condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Where a party fails to strictly comply with a notice and cure provision then that party’s breach of contract claim fails. (IP Global Invs. Am., Inc. v. Body Glove IP Holdings, LP (C.D. Cal. Nov. 14, 2018) 2018 U.S. Dist. LEXIS 194461 at *11.) The purpose of a notice and cure provision is to provide the breaching party an opportunity to cure the breach before litigation or termination of the contract. (Id.) A vague notice of breach defeats the purpose to provide an opportunity to cure. (Id.) Whether a notice of circumstances is sufficient is a question of fact. (National Auto. & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 409.) The question of whether a breach of an obligation is a material breach is a factual question, however, if reasonable minds cannot differ on the issue of materiality then the issue may be resolved as a matter of law. (Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 87.)

DLF presents the undisputed fact that the ESA requires the parties to provide a 30-day notice and opportunity to cure an alleged breach. DLF also presents evidence that: (1) on April 12, 2017, BMI sent DLF a Notice of Breach (the “Notice”) pursuant to the ESA setting forth various grounds of DLF’s purported material breaches of the ESA (D. Goodman Decl. at Exhibit 10); and (2) the Notice gave DLF a 30-day period to cure. DLF also presents the May 23, 2017 Notice of Termination (the “Termination Notice”) that BMI sent which terminated the ESA between the parties. (Id. at Exhibit 12.)

Analysis

The Court finds that while DLF contends that the Notice did not mention: (1) the April 28, 2017 report of a piece of wood in a product package; (2) the May 5, 2017 and May 8, 2017 reports of blue plastic; and (3) later purported findings of listeria and salmonella, the Notice does mention issues with food safety and potential pathogens. The Termination Notice also appears to incorporate the contents of the Notice therein. Thus, while the Termination Notice does list new purported violations on behalf of DLF that were discovered in the interim between the issuance of the Notice and Termination Notice, the Notice put DLF on inquiry as to other issues that BMI considered material breaches. The Court finds that there exists a triable issue of material fact as to whether the Notice was sufficient and such issue is a factual question to be resolved by a jury. Moreover, the Court finds that summary adjudication of the second cause of action in the FAXC is inappropriate because the issue of whether DLF committed a material breach of the ESA is a question for a jury.

DLF further contends that BMI cannot establish damages resulting from DLF’s alleged breach of the Product Warranty. The Court finds that DLF is conflating an available remedy under the ESA and the Product Warranty contained therein with the issue of whether BMI sustained any damages. A party moving for summary adjudication must present evidence—and not simply point out—that the opposing party does not possess, and cannot reasonably obtain, needed evidence under Aguilar, supra, 25 Cal.4th 826, 854. DLF does not provide any evidence stating that BMI did not sustain any damages from the purported breach of the Product Warranty provision in the ESA. The Court also finds that the second cause of action in the FAXC is not solely premised[5] on the breach of the Product Warranty provision. Such cause of action is also premised on alleged wrongs such as: (1) DLF’s failure to fulfill orders; (2) a breach of a trademarks provision in the ESA; and (3) DLF wrongfully inducing BMI to build out infrastructure at DLF’s Mansfield facility.

The Court therefore DENIES DLF’s request for summary adjudication as to issue number three in the Motion.

Issue No.5: Third Cause of Action in the FAXC

DLF contends that BMI cannot establish that it was damaged as a result of DLF’s alleged breach of the NDA by disclosing a doctored copy of the audit report.

It is fundamental that contract damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473.)

DLF presents evidence that the stock price of BMI increased after the doctored copy of the audit report was disclosed. BMI presents no admissible evidence that it was damaged by disclosure of the site assessment report. The Court, however, finds that the third cause of action is also premised on the use and disclosure of BMI’s trade secrets to create DLF’s own line of plant-based products. DLF presents no evidence or argument that BMI lacks any evidence to show that it was damaged by the alleged improper use of BMI’s trade secrets by DLF. The Court finds that a dispute of material fact exists as to such issue and DLF has not met its burden in showing that BMI cannot establish damages as to each and every basis for the third cause of action in the FAXC[6].

The Court therefore DENIES DLF’s request for summary adjudication as to issue number four in the Motion.

In sum, the Motion is GRANTED IN PART according to the Court’s discussion above.

The Court will now address the 2d Motion.

DISCUSSION AS TO THE 2d MOTION[7]

Cross-Defendants filed the 2d Motion and seek summary adjudication as to the first, fifth, and tenth causes of action in the FAXC, as well as BMI’s claim for punitive damages in the FAXC. Cross-Defendants contend that good cause exists to grant the 2d Motion because: (1) BMI has not adduced evidence as to one or more essential elements of its fifth cause of action against Cross-Defendants; (2) BMI waived its right to claim damages for fraudulent inducement; (3) BMI has not adduced evidence that Cross-Defendants acted with oppression, malice, or fraud, as required for its punitive damages claim; (4) California does not recognize a cause of action for negligent false promise; (5) BMI has not adduced evidence as to one or more essential elements of its sixth cause of action for negligent misrepresentation against Cross-Defendants; and (6) BMI has not adduced any evidence that DLF wrongfully exercised dominion over any property to which BMI has a right of ownership or possession.

Issue No.1: Fifth Cause of Action in the FAXC

The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) Fraudulent representations, to constitute ground for relief, must be as to existing and material facts; predictions of future events are ordinarily considered nonactionable expressions of opinion. (Richard P. v. Vista Del Mar Child Care Service (1980) 106 Cal.App.3d 860, 865.) Something more than nonperformance is required to prove the defendant’s intent not to perform his promise. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) If a plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury. (Id.)

The required elements for a fraudulent concealment claim are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

Analysis

The 2d Motion focuses primarily on the contention that BMI cannot prove a knowing misrepresentation and does not make a reasoned substantive argument as to whether BMI can prove its claim for fraudulent concealment[8]. The fifth cause of action is one for fraud but is based on fraudulent inducement, false promise, intentional misrepresentation, and concealment. It follows that Cross-Defendants’ argument as to waiver of fraud damages also fails because such argument is premised on BMI’s discovery of alleged affirmative misrepresentations (2d Motion at 22:19-24:7), but such argument does not address the purported concealment by Cross-Defendants. Irrespective of the defects in the 2d Motion as to the fraudulent concealment portion of the fifth cause of action in the FAXC, Cross-Defendants have failed to produce admissible evidence to show that any element the fifth cause of action in the FAXC cannot be established.

The Court therefore DENIES Cross-Defendants’ request for summary adjudication as to the fifth cause of action in the FAXC and therefore summary adjudication is denied as to issues 1a and 1b in the 2d Motion.

Issue No.2: Punitive Damages

Civ. Code ; 3294 provides that punitive damages are available if a party is guilty of malice, fraud, or oppression as shown by clear and convincing evidence. Entitlement to punitive damages is generally an issue for the trier of fact. (The Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 501.) Summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud, or oppression. (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762.) There is no obligation for a cross-complainant to prove a case for punitive damages at the summary adjudication stage. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.)

Here, the Court finds that Cross-Defendants have not presented sufficient admissible evidence to show that they are not guilty of fraud, oppression, or malice. Had Cross-Defendants shown the non-existence of such fact, however, the Court would have found that based on the admissible evidence presented by BMI, a triable fact would be present as to BMI’s claim for punitive damages. Irrespective of such fact, the Court finds that the issue of punitive damages is a question for a jury under The Nippon Credit Bank and American Airlines.

The Court therefore DENIES the request for summary adjudication as to issue number two in the 2d Motion.

Issue No.3: Sixth Cause of Action in the FAXC

There is no recognized cause of action for a negligent misrepresentation based on false promise and where such cause of action is alleged, summary adjudication is appropriate. (Hooked Media Group, Inc. v. Apple, Inc. (2020) 55 Cal.App.5th 323, 331.)

The Court finds that the sixth cause of action in the FAXC is based on false promises allegedly made by Cross-Defendants. Such cause of action, however, is improper under Hooked Media. The sixth cause of action explicitly sets forth the alleged misrepresentations of Cross-Defendants that: (1) they would be able to manufacture BMI finished product safely at the Mansfield facility and that such facility was adequate for BMI’s production needs; and (2) DLF intended to be a good faith co-manufacturer. Such misrepresentations are specifically alleged to have been false and based on future acts. As such, the sixth cause of action does not survive summary adjudication under Hooked Media.

The Court therefore GRANTS summary adjudication as to issues 3a and 3b in the 2d Motion.

Issue No.4: Tenth Cause of Action in the FAXC

The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.)

Based on the admissible evidence presented by Cross-Defendants the Court finds that Cross-Defendants have shown that BMI cannot establish Cross-Defendants’ conversion by wrongful act or disposition of BMI’s property rights. The burden now shifts to BMI to show a triable issue of material fact.

The Court finds that even liberally construing the evidence presented by BMI in opposition to the 2d Motion, BMI has not raised a triable issue of fact as to the conversion cause of action. BMI has not provided evidence that DLF converted BMI’s property. Moreover, BMI’s citations to: (1) Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908 and (2) Gruber v. Pacific States Savings & Loan Co. (1939) 13 Cal.2d 144 are inapposite.

The Court therefore GRANTS Cross-Defendants’ request for summary adjudication as to issue number four in the 2d Motion.

The 2d Motion is therefore GRANTED IN PART according to the Court’s discussion above.

DLF is ordered to give notice of this ruling in its entirety 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 7th day of May 2021

Hon. Holly J. Fujie

Judge of the Superior Court


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

[2] This motion has a reservation identification number ending in 1404. Cross-Defendants raised new arguments in their reply brief such as the fifth cause of action fails because it is based on a breach of contract; however, the Court will not consider new arguments raised for the first time in a reply brief under Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 471, fn.19.

[3] DLF appears to have incorrectly cited the wrong subsection of Cal. Rules of Court, Rule 3.1350 because Cal. Rules of Court, Rule 3.1350(f)(2) is concerned with an opposing party unequivocally stating whether a fact is disputed or undisputed.

[4] This count alleges that: (1) DLF performed all of its obligations under the ESA; (2) BMI breached its promises under the ESA by failing to pay invoices; and (3) due to BMI’s breach of the ESA, DLF has been damaged in an amount to be determined at trial plus attorneys’ fees and interest.

[5] The pleadings in a motion for summary adjudication frame the outer measure of materiality in a summary adjudication proceeding and delimit the scope of the issues under Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.

[6] The purpose of a summary adjudication motion is to dispose of an entire cause of action under Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256, fn.6. While BMI did not present admissible evidence that it was damaged by disclosure of the doctored audit report, the third cause of action in the FAXC still contains a basis for liability against DLF. The Motion does not entirely dispose of the third cause of action in the FAXC.

[7] The Court incorporates the legal standard as a summary adjudication motion from above and applies such recitation to the 2d Motion.

[8] Contentions are waived when a party fails to support them with reasoned argument under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.



Case Number: ****2838    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.: ****2838

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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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 “****2838 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: ****2838    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.: ****2838

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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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: ****2838    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.: ****2838

[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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