This case was last updated from San Francisco County Superior Courts on 06/24/2019 at 06:47:30 (UTC).

THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION VS. JOACHIM BERGMANN et al

Case Summary

On 02/01/2013 THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION filed a Contract - Business lawsuit against JOACHIM BERGMANN. This case was filed in San Francisco County Superior Courts, Civic Center Courthouse located in San Francisco, California. The Judges overseeing this case are PETER J. BUSCH, CYNTHIA M. LEE, A. JAMES ROBERTSON II, ERNEST H. GOLDSMITH, HAROLD E. KAHN, JOHN K. STEWART and MARLA J. MILLER. The case status is Not Classified By Court.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8418

  • Filing Date:

    02/01/2013

  • Case Status:

    Not Classified By Court

  • Case Type:

    Contract - Business

  • Court:

    San Francisco County Superior Courts

  • Courthouse:

    Civic Center Courthouse

  • County, State:

    San Francisco, California

Judge Details

Judges

PETER J. BUSCH

CYNTHIA M. LEE

A. JAMES ROBERTSON II

ERNEST H. GOLDSMITH

HAROLD E. KAHN

JOHN K. STEWART

MARLA J. MILLER

 

Party Details

Plaintiffs and Cross Defendants

THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION

BAUGHMAN, DUANE

Defendants, Cross Plaintiffs and Others

BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

BERGMANN, JOACHIM

ZWERDLING, ALEX

DOES 1 TO 10, INCL.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

GATTI, JOHN M.

Attorney at STROOCK & STROOCK & LAVAN LLP

11355 West Olympic Boulevard

Los Angeles, CA 900641614

Defendant, Cross Plaintiff and Other Attorneys

COOPER JOHN L

SANDLER, JOSEPH E.

Attorney at SANDLER, REIFF, LAMB, ROSENSTEIN & BIRKENSTOCK PC

1025 Vermont Avenue, N.W., Suite 300

Washington, DC 20005

COOPER, JOHN LEE

Attorney at FARELLA BRAUN & MARTEL LLP

235 Montfomery St 17Th Fl

San Francisco, CA 94104

 

Court Documents

ORDER

ORDER - JOINT STIPULATION AND ORDER TO EXTEND DEADLINE TO HEAR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION (TO OCT-21-2014)

Cross-Defendnats Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues to Cross-Complaint Bergmann Zwerdling Direct Inc.s Cross-Complaint

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES TO CROSS-COMPLAINT BERGMANN ZWERDLING DIRECT INC.S CROSS-COMPLAINT (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE

Cross-Defendants Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE

Declaration of Duane Baughman in Support of Cross-Defendants Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication

DECLARATION OF DUANE BAUGHMAN IN SUPPORT OF CROSS-DEFENDANTS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE

Proof of Service Re: Cross-Defendants Notice and Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues to Cross-Complaint Bergmann Zwerdling Direct, Inc.s Cross-Complaint

PROOF OF SERVICE RE: CROSS-DEFENDANTS NOTICE AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES TO CROSS-COMPLAINT BERGMANN ZWERDLING DIRECT, INC.S CROSS-COMPLAINT (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE

Cross-Defendants Notice of Payment for Court Reporter Fee Re: Cross-Defendants Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues to Cross-Complaint Bergmann Zwerdling Direct Inc.s Cross-Complaint

COURT REPORTING SERVICES LESS THAN 1 HOUR (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE (Fee:30.00)

Cross-Defendants Request for Judicial Notice in Support of their Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues to Cross-Complainant Bergmann Zwerdling Direct Inc.s Cross-Complaint

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES TO CROSS-COMPLAINANT BERGMANN ZWERDLING DIRECT INC.S CROSS-COMPLAINT (TRANSACTION ID # 55869786)

OPPOSITION

OPPOSITION TO CROSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION OF ISSUES TO CROSS-COMPLAINT FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

DECLARATION OF

DECLARATION OF ALEXANDER ZWERDLING IN SUPPORT OF CROSS-COMPLAINANT BERGMANN ZWERDLING DIRECT'S TO CROSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION OF ISSUES TO CROSS-COMPLAINT FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

Notice to Plaintiff

NOTICE TO PLAINTIFF

CASE MANAGEMENT STATEMENT

CASE MANAGEMENT STATEMENT FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION JURY DEMANDED, ESTIMATED TIME FOR TRIAL: 7.0 DAYS

Plaintiff The Baughman Companys Separate Statement in Support of Opposition to Defendants Bergmann Zwerdling Direct, Inc., Joachim Bergmann, and Alex Zwerdlings Motion to Compel Responses Re: Second Set of Special Interrogatories

SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO DEFENDANTS BERGMANN ZWERDLING DIRECT, INC., JOACHIM BERGMANN, AND ALEX ZWERDLINGS MOTION TO COMPEL RESPONSES RE: SECOND SET OF SPECIAL INTERROGATORIES (TRANSACTION ID # 55776663) FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION

Cross-Defendants Notice of Summary Judgement, or in the Alternative, Summary Adjudication of Issues to Cross-Complaint Bergmann Zwerdling Direct Inc.s Cross-Complaint

MOTION FOR SUMMARY JUDGMENT AND NOTICE OF SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES TO CROSS-COMPLAINT BERGMANN ZWERDLING DIRECT INC.S CROSS-COMPLAINT (TRANSACTION ID # 55865661) FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE HEARING SET FOR OCT-21-2014 AT 09:30 AM IN DEPT 302 (Fee:500.00)

DECLARATION OF

DECLARATION OF JOACHIM BERGMANN IN SUPPORT OF CROSS-COMPLAINANT BERGMANN ZWERDLING DIRECT'S TO CROSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION OF ISSUES TO CROSS-COMPLAINT FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

DECLARATION OF

DECLARATION OF MORGAN T. JACKSON IN SUPPORT OF CROSS-COMPLAINANT BERGMANN ZWERDLING DIRECT'S TO CROSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION OF ISSUES TO CROSS-COMPLAINT FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

GENERIC CIVIL FILING (NO FEE)

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO THE BAUGHMAN COMPANY'S MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

GENERIC CIVIL FILING (NO FEE)

PLAINTIFF THE BAUGHMAN COMPANY'S MEMORANDUM IN OPPOSITION TO DEFENDANTS JOACHIM BERGMANN'S AND ALEX ZWERDLING'S MOTION FOR SUMMARY ADJUDICATION ON PLAINTIFF'S SECOND THROUGH FIFTH CAUSES OF ACTION FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION

DECLARATION OF

SUPPLEMENTAL DECLARATION OF JOHN M. GATTI IN SUPPORT OF REPLY MEMORANDUM IN SUPPORT OF MTN FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION (REDACTED) **FILED AT INSISTENCE OF LITIGANT** FILED BY CROSS DEFENDANT THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION BAUGHMAN, DUANE

83 More Documents Available

 

Docket Entries

  • 09/30/2014
  • Payment : MOTION; Amount : $60; Payment Type : CHECK; Receipt Number : W2114930M003

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  • 09/30/2014
  • Payment : APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE; Amount : $500; Payment Type : CHECK; Receipt Number : W2114930P002

    Read MoreRead Less
  • 09/26/2014
  • Payment : JURY FEES; Amount : $150; Payment Type : ELECTRONIC; Receipt Number : R7814926J018

    Read MoreRead Less
  • 09/23/2014
  • Payment : MOTION; Amount : $60; Payment Type : CHECK; Receipt Number : W1714923M023

    Read MoreRead Less
  • 08/11/2014
  • Payment : COURT REPORTER FEES < 1 HOUR; Amount : $30; Payment Type : ELECTRONIC; Receipt Number : B1414811R002

    Read MoreRead Less
  • 08/11/2014
  • Payment : MOTION FOR SUMMARY JUDGMENT; Amount : $500; Payment Type : ELECTRONIC; Receipt Number : B1414811M001

    Read MoreRead Less
  • 08/08/2014
  • Payment : COURT REPORTER FEES < 1 HOUR; Amount : $30; Payment Type : ELECTRONIC; Receipt Number : R7814808R002

    Read MoreRead Less
  • 08/08/2014
  • Payment : MOTION FOR SUMMARY ADJUDICATION; Amount : $500; Payment Type : ELECTRONIC; Receipt Number : R7814808S001

    Read MoreRead Less
  • 07/16/2014
  • Payment : REQ OR STIP AND ORDER W/O HEARING; Amount : $20; Payment Type : CHECK; Receipt Number : W1714716C027

    Read MoreRead Less
  • 06/27/2014
  • Payment : MOTION; Amount : $60; Payment Type : CHECK; Receipt Number : W2214627M014

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217 More Docket Entries
  • 02/01/2013
  • View Court Documents
  • ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND GRANTING ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

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  • 02/01/2013
  • POS OF OPPOSITION TO APPLICATION FOR A TRO AND OSC FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

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  • 02/01/2013
  • DECLARATION OF ALEXANDER ZWERDLING IN OPPOSITION TO APPLICATION FOR A TRO AND OSC FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

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  • 02/01/2013
  • DECLARATION OF JOACHIM BERGMANN IN OPPOSITION TO APPLICATION FOR A TRO AND OSC FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

    Read MoreRead Less
  • 02/01/2013
  • DECLARATION OF JOSEPH E SANDLER IN OPPOSITION TO APPLICATION FOR A TRO AND OSC FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY

    Read MoreRead Less
  • 02/01/2013
  • OPPOSITION TO EX PARTE APPLICATION FOR A TRO AND OSC FILED BY DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY (Fee:$1350.00)

    Read MoreRead Less
  • 02/01/2013
  • DECLARATION IN SUPPORT OF EX PARTE APPLICATION FOR ORDER FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION

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  • 02/01/2013
  • EX PARTE APPLICATION FOR ORDER FOR TRO AND OSC RE: PRELIMINARY INJUNCTION, POINTS AND AUTHORITIES FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION (Fee:$60.00)

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  • 02/01/2013
  • View Court Documents
  • NOTICE TO PLAINTIFF

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  • 02/01/2013
  • View Court Documents
  • BUSINESS TORT, COMPLAINT FILED BY PLAINTIFF THE BAUGHMAN COMPANY INC, A CALIFORNIA CORPORATION AS TO DEFENDANT BERGMANN, JOACHIM ZWERDLING, ALEX BERGMANN ZWERDLING DIRECT, AN UNKNOWN TYPE OF BUSINESS ENTITY DOES 1 TO 10, INCL. SUMMONS ISSUED, JUDICIAL COUNCIL CIVIL CASE COVER SHEET FILED CASE MANAGEMENT CONFERENCE SCHEDULED FOR JUL-03-2013 PROOF OF SERVICE DUE ON APR-02-2013 CASE MANAGEMENT STATEMENT DUE ON JUN-18-2013 (Fee:$450.00)

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Complaint Information

MANATT, PHELPS & PHILLIPS, LLP JOHN M. GATTI (State Bar No. 138492)

Email: jgatti@manatt.com ELECTRONICALLY 11355 West Olympic Boulevard - 1 - Los Angeles, California 90064-1614 Supeg . ICoLl;; OFCJ% i Telephone: (310) 312-4000 e Facsimile: (310) 312-4224 Counly of San Francisco

AUG 08 2014

Attorney for Plaintiff and Cross-Defendants Clerk of the Court THE BAUGHMAN COMPANY and DUANE BAUGHMAN BY: WILLIAM TRD%I:E:;(/ Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO

THE BAUGHMAN COMPANY, INC,, a California Corporation,

CROSS-DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR

SUMMARY JUDGMENT, OR IN THE

Plaintiff,

ALTERNATIVE, SUMMARY JOACHIM BERGMANN, an individual; ADJUDICATION OF ISSUES TO CROSS- ALEX ZWERDLING, an individual; COMPLAINANT BERGMANN

ZWERDLING DIRECT INC.’S CROSS-

COMPLAINT

BERGMANN ZWERDLING DIRECT, an unknown type of business entity, and DOES 1-10, inclusive,

Defendants. Date: October 21, 2014 Time: 9:30 a.m. Dept.. 302

BERGMANN ZWERDLING DIRECT,

INC., a District of Columbia Corporation, Date of Filing: February 1, 2013

Trial Date: November 3, 2014 Cross-Complainant,

Vs. THE BAUGHMAN COMPANY, INC., a Corporation, and DUANE BAUGHMAN,

an individual, |

Cross-Defendants.

TABLE OF CONTENTS

Page L PRELIMINARY STATEMENT ... ooooovoe oo oo se oo ssssssess s eseesesae s essaesserenes I II. STATEMENT OF UNDISPUTED FACTS ¢.ooooooerooeeseeeeseeeseesssessesseeeeesesseessessesseseereon 2 L. LEGAL STANDARD oo.oovoevoeeosee s sesesseressesesesssseseseessesseesseessesesseseesssesssessessesseseesseon 5 IV, ARGUMENTsseessesessesesnre 5

A. BZD’s Cross-Complaint Creates No Triable Issues of Fact in Its First Cause of Action for Violation of Section 17045 of California’s Unfair Practices Act...ccovivievicviiiien e,6

B. BZD’s Cross-Complaint Creates No Triable Issues of Fact in Its Second Cause of Action for Unlawful Business Practices in Violation of Section 17200 of California’s Unfair Competition Law....ccccccoviieirinercninie i 14

C. BZD’s Cross-Complaint Creates No Triable Issues of Fact in Its Third Cause of Action for Unfair Business Practices in Violation of Section 17200 of California’s Unfair Competition Law.......ccccvviivinviniiinncincnnnenns 17

CONC}:}USION 0000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000 l 8

TABLE OF AUTHORITIES

Page

CASES

ABC Int’l. Traders, Inc. v. Matsushita Electric Corp.,

14 Cal. 4th 1287 (1997 1otttsaanr s e s saressbbaraees e 7 Aguilar v. Atlantic Richfield Co., |

25 Cal. 4th 826 (2001) 1voiieiicri e 5 Bernardo v. Planned Parenthood Federation of America,

115 Cal. App. 4th 332 (2004).....coiieieier e st sesinens et 14 Bower v. AT & T Mobility, LLC,

196 Cal. App. 4th 1545, 1554 (2011) oot saean e e 15 Brown v. Ransweiler,

171 Cal. App. 4th 516 (2009)...ccciiieiereeieore e teriesaeee et e b e srte e saesrsrenesarsseons 13 Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,

20 Cal, 4th 163 (1999) wiiiiiiiiiiircne e erreeer ey e e 14 Cellular Plus, Inc. v. Superior Court,

14 Cal. App. 4th 1224 (1993)...iei ittt s sebaesraasbrne e, 17

Chicago Title Ins. Co. v. Great Western Financial Corp., 69 Cal. 2d 305 (1968), superseded by statute as stated in Clayworth v. Pfizer,

Inc., 49 Cal. 4th 758 (2010)seneees 7,8, 11 Diesel Elec. Sales & Serv., Inc. v. Marco Marine San Diego, Inc.,

16 Cal. APP. 4th 202 (1093 iiiiiiiiieesrare s s reae s saseesessasnaennes 6, 7 Fisherman’s Wharf Bay Cruise Corp. v. Superior Court,

114 Cal. App. 4th 309 (2003)...iceiriiiiicicir e 8,13 G.HIIL v. MTS, Inc.,

147 Cal. APP. 3d 256 (1083 ittt et svcr s e s et sesanir e ranessrre s 17 Halbert’s Lumber, Inc. v. Lucky Stores, Inc., .

6 Cal. APP. 4th 1233 (1992 itttrarasabaeHarris v. Capitol Records etc. Corp., ‘ |

64 Cal. 20 454 (1966) ..ivovevvrivriivrecrriciee i reetesaeerasensee e 8, 10,12 Hayman v. Block,

176 Cal. APP. 3d 629 (1980).uuuuiiieciiiii ittt ee st srsa e sabasrareesconnees s 13 Hope International University v. Superior Court

119 Cal. App. 4th T19 (2004).eeeiiiiiriiii ittt et e ebbe e san s s saaessssabes e 13 Korea Supply Co. v. Lockheed Martin Corp.,

29 Cal. 4th 1134 (2003) eriiiei ettt ce e ctrteenanee e 14 Lindenstadt v. Staff Builders, Inc.,

55 Cal. APP. 4th 882 (1907 )it e e 12 312661094 4 ~ i

TABLE OF AUTHORITIES

(continued) Page

Lujan v. Defenders of Wildlife, |

S04 TS, 555 (1992) ettt itttMercer v. Department of Motor Vehicles, |

S53CaL 3A 753 (1991)People ex rel. Younger v. Superior Court,

16 Cal, 3A 30 (1976)Puentes v. Wells Fargo Home Mortg., Inc.,

160 Cal. App. 4th 638 (2008 )...ciiiiriiiiriiiiiiiiiiieeRees v. Department of Real Estate,

76 Cal, APD. 3A 286 (1077 ) ettt s et 12 Saunders v. Superior Court, |

27 Cal. App. 4th 832 (1994)...uicii it e 16 Sinai Memorial Chapel v. Dudler,

231 Cal. APD. 3A 190 (1991 )ittt e renb s ba o vasaTroyk v. Farmers Grp., Inc.,

171 Cal. App. 4th 1305 (2009)..cciiiieeeTyrone v. Kelley, ~

Al 30 1 {I073) i rreeeerte e s seibreree12

| STATUTES

Cal. Bus. & Prof. €Code § 17001 .ttt iaees s e s enabCal. Bus. & Prof. Code § 17045 ..o, F T passim Cal. Bus. & Prof. Code § 17200 .vvvveveeeirrninenenn, reeteraerereerereetaaettri—,tterianesearnaarearaeseraran 14,17, 18 Cal. Bus. & Prof. €ode § 17204 ..ot s e sreearesasanrasaasassasriens e 14,15 Cal. Penal Code § 502....ooereeeeececereeirensn s ettt 4 Cal. Penal Code § 641.3 .. v e treaeheeriba—er L treeeeriaeeatrtataateeaere ety attarnrtenraaaree 15,16 Cal. Penal Code § 641.3(a) v crceninnseensanas 16 Cal. Penal Code § 041,303 ) it crae e sttrese b eeseeabesasabsessbsessassssaresaes 16 Cal. Civ. Proc. €ode § 437C(C) coivriiiiriieiiiirinisiirieree it ciesee s eree e raers s bie e s earte s s bes s ebebassaens 5 Cal. Civ. Proc. €ode § 437C(0M(2) it ceireeretcrerenees st esia s sbea s e sresseasenns 5 EVIA. €OAe, § 602 ..5

| OTHER AUTHORITIES

T8 Ops.Cal.ALLY.GON.312661094 .4 il

MEMORANDUM OF POINTS AND AUTHORITIES I PRELIMINARY STATEMENT

Plaintiff and Cross-Défendant The Baughman Company, Inc. (the “Company™) brought this action against Defendants Joachim Bergmann (“Bergmann™) and Alex Zwerdling (“Zwerdling™) after they stole the Company’s trade secret client list, company documents, work product and other highly proprietary and confidential information for their own gain, in direct violation of their employment contracts with the Company. The Company’s principal, Cross- Defendant Duane Baughman (Mr. Baughman), hired Bergmann and Zwerdling, despite their having little or no experience with direct mail marketing for political clients. Mr. Baughman took ‘Bergmann and Zwerdling under his wing, paid them significant salaries, and trained them.

Bergmann and Zwerdling repaid Mr. Baughman by stealing the Company’s highly confidential client list and other corporate work product with the intention of taking the Company’s clients for their own political marketing business, Defendant Bergmann Zwerdling Direct (“BZD” and, collectively with Bergmann and Zwerdling, “Defendants™). Defendants publicly opened their competing business simultaneous to giving notice to the Company of Bergmann’s departure. It is undisputed that Defendants took corporate and client files and documents from the Company. In fact, this Court has already enjoined Defendants from retaining or using such files and documents and ordered Defendants to return the documents to the Company and destroy any copies.

Then, seemingly for no other reason than a retaliatory measure, BZD (“Cross- Complainant™) brought its Cross-Complaint against the Company and Mr. Baughman (collectively, “Cross-Defendants”), alleging causes of action for violation of California’s Unfair Practices Act and Unfair Competition Law, in a bad faith attempt to harass and burden Cross~ Defendants. BZD’s Cross-Complaint is completely devoid of any factual allegations supporting its claims, and tellingly consists of only unsupported conclusions of law. For example, BZD alleges that Cross-Defendants made secret payments to its clients, but fails to identify a single transaction or client that supports its allegations. Moreover, BZD fails to allege any specific

312661094 4 i

312661094 4 i conduct by Mr. Baughman or any other person at the Company in making such purported secret payments. It is undisputed that the Cross-Defendants never made any secret payments to secure any business and have done nbthing in violation of the referenced statutes. Furthermore, neither BZD nor the industry were ever injured as a result of any purported payments, and therefore no triable issue of fact exists as to any of BZD’s three causes of action. BZD cannot, as a matter of law, prove any elements of the alleged statutory violations set forth in its Cross-Complaint let alone cite to any evidence to create a triable issue as to any material fact supporting the finding that the Company or Mr, Baughman did anything even arguably improper because such facts do not exist. The Company and Mr. Baughman never took any action in violation of any statute as BZD now boldly asserts without citing to any evidence or any specific fact to maintain its allegation. Accordingly, Cross-Defendant’s Motion for Summary Judgment to BZD’s baseless and retaliatory Cross-Complaint should be granted.

conduct by Mr. Baughman or any other person at the Company in making such purported secret payments. It is undisputed that the Cross-Defendants never made any secret payments to secure any business and have done nbthing in violation of the referenced statutes. Furthermore, neither BZD nor the industry were ever injured as a result of any purported payments, and therefore no triable issue of fact exists as to any of BZD’s three causes of action. BZD cannot, as a matter of law, prove any elements of the alleged statutory violations set forth in its Cross-Complaint let alone cite to any evidence to create a triable issue as to any material fact supporting the finding that the Company or Mr, Baughman did anything even arguably improper because such facts do not exist. The Company and Mr. Baughman never took any action in violation of any statute as BZD now boldly asserts without citing to any evidence or any specific fact to maintain its allegation. Accordingly, Cross-Defendant’s Motion for Summary Judgment to BZD’s baseless and retaliatory Cross-Complaint should be granted.

II. STATEMENT OF UNDISPUTED FACTS

The Company is a direct marketing company that specializes in marketing for political campaigns and, in particular, designing and implementing direct mail campaigns for ballot propositions and measures, corporate clients and political campaigns. (Declaration of Duane Baughman (“Baughman Decl.”) § 2; Separate Statement of Undisputed Material Facts (“SUF”) No. 1.) Duane Baughman started the Company in San Francisco in 19935, and has grown it into a top creative persuasion mail firm in the industry. (Baughman Decl. § 2, SUF No. 2.)

On or about May 1, 2009, the Company hired Bergmann to manage client development activities, to assist with client strategy in creating effective direct mailing campaigns, and to attract new clients for the Company. (Baughman Decl. § 3, SUF No. 3.) Prior to joining the Company, Bergmann’s experience had been more focused in campaign strategy, and he did not have extensive experience in the direct mail business, so Mr. Baughman took him under his wing and took the time to teach him the business, (Baughman Decl. § 9, SUF No. 4.)

In or about February of 2011, although Zwerdling had no prior experience in the direct ‘mail business, the Company hired Zwerdling to work in client development and, similarly,

Mr. Baughman taught Zwerdling the business. (Baughman Decl. § 10, SUF No. 5.) 312661094 .4 2

Mr. Baughman taught Zwerdling the business. (Baughman Decl. § 10, SUF No. 5.) 312661094 .4 2 In the scope of their employment, Bergmann and Zwerdling were given access to the Company’s client list. (Baughman Decl. § 7, SUF No. 6.) Mr. Baughman has invested a substantial amount of time, effort and money in building the client list over the past 19 years; 1t consists of confidential client information, including the contact information of the Company’s clients, as well as their top aides, chiefs of staff, and other strategic client contacts. (Baughman Decl. 44, SUF No. 7.)

In the scope of their employment, Bergmann and Zwerdling were given access to the Company’s client list. (Baughman Decl. § 7, SUF No. 6.) Mr. Baughman has invested a substantial amount of time, effort and money in building the client list over the past 19 years; 1t consists of confidential client information, including the contact information of the Company’s clients, as well as their top aides, chiefs of staff, and other strategic client contacts. (Baughman Decl. 44, SUF No. 7.)

In November of 2012, after election season ended, Mr. Baughman informed Zwerdling that his contract would not be renewed when it expired on February 11, 2013. (Baughman Decl. % 12, SUF No. 8.) Accordingly, in early December of 2012, the Company paid Zwerdling $38.,000 in severance, and Zwerdling ceased working for the Company and did not return to the office. {Baughman Decl. § 12, SUF No. 9.) | |

Subsequently, in late December of 2012, the Company paid Bergmann a discretionary bonus of $30,000, based on Mr. Baughman’s belief and understanding from Bergmann’s conduct and representations that he was going to continue his work with the Company and comply with his eni.ployment contract. (Baughman Decl. § 11, SUF No. 10.)

However, on January 2, 2013, at approximatel}; 1:30 a.m., Bergmann sent an email to Mzr. Baughman notifying him that he was leaving the Company. (Baughman Decl. § 13, SUF No. 11.) Mr. Baughman subsequently discovered that Bergmann and Zwerdling had sent their announcement of BZD’s formation and solicitation to the Company’s clients. (Baughman Decl. § 14, SUF No. 12.) Indeed, Bergmann and Zwerdling’s improper solicitation of the Company’s clients caused clients to leave the Company. In addition, as they have since admitted, Bergmann and Zwerdling took copies of email records from the laptop computers issued to them by the Company during their employment. Furthermore, Bergmann and Zwerdling stole thc Company’s proprietary work product, including dozens of hard copies of the samples of mail advertising when they left. Finally, while Bergmann was still employed by the Company, he contacted the Company’s existing and potential clients in order to seek business opportunities for BZD.

Accordingly, on February 1, 2013, the Company instituted the present action against 312661094.4 3

Accordingly, on February 1, 2013, the Company instituted the present action against 312661094.4 3 Defendants. (SUF No. 13.) On February 19, 2013, the Court granted the Company’s request for a preliminary injunction in part, enjoining Defendants from retaining or using the Company’s files and documents, electronic or otherwise, which Defendants took with them when they left the Company. (SUF No. 14.) The Court also ordered Defendants to return the stolen files and documents to the Company and destroy any copies so that Defendants did not fetain this information. (SUF No. 15.)

Defendants. (SUF No. 13.) On February 19, 2013, the Court granted the Company’s request for a preliminary injunction in part, enjoining Defendants from retaining or using the Company’s files and documents, electronic or otherwise, which Defendants took with them when they left the Company. (SUF No. 14.) The Court also ordered Defendants to return the stolen files and documents to the Company and destroy any copies so that Defendants did not fetain this information. (SUF No. 15.)

Neither the Company nor any employee of the Company has ever made a payment of any kind to a client to acquire business. (Baughman Decl. § 16, SUF No. 16.) The Company does pay independent consultants and third-party vendors to market the Company on an ongoing basis but none of these payments were in secret. (Baughman Decl. 9 17-18, SUF No. 17.) In fact, the Company reported these payments to the IRS, fully disclosed these payments to all parties involved, and even Defendants were made aware of these payments for marketing services with business opportunity referrals. (Baughman Decl. 99 18, 19, SUF No. 18.) No payment has ever been made to a client or a person with decision-making authority; third parties had no authority to participate in negotiations. (Baughman Decl. § 20, SUF No. 19.) The Company was never obligated to make these payments, and when it did, these payments were made after the client engaged the Company, so these fees never had any impact in the Company being retained. (Baughman Decl. 9 21-22, SUF No. 20.) The nature of these payments were finder’s fees and were in exchange for a third party introducing the Company to a potential business op\portunity. (Baughman Decl. 99 22-23, SUF No. 21.)

On May 28, 2013, the Company filed its Amended Complaint in this action, allegi.ng, among other things, that Defendants misappropriated the Company’s trade secret client list, breached their employment contracts with the Company, breached the implied covenant of good faith and fair dealing, vioiated California Penal Code Section 502, and stole the Company’s property. (SUF No. 22.) On June 27, 2013, BZD filed its Cross-Complaint in this action. (SUF No. 23))

1. LEGAL STANDARD

To prevail on a motion for summary judgment, the moving party must demonstrate that 312661094.4 4

To prevail on a motion for summary judgment, the moving party must demonstrate that 312661094.4 4 there are no triable issues of material fact and that it is “entitled to a judgment as a matter of law.’ Cal. Civ. Proc. Code § 437¢(c). “The party moving for summary judgment bears the burden of persuasion that there 1s no triable i1ssue of material fact and th‘at he is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850 (2001). “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Id

there are no triable issues of material fact and that it is “entitled to a judgment as a matter of law.’ Cal. Civ. Proc. Code § 437¢(c). “The party moving for summary judgment bears the burden of persuasion that there 1s no triable i1ssue of material fact and th‘at he is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850 (2001). “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Id

The moving party may meet its burden by demonstrating that one or more elements of the cause of action in question cannot be established or that there is a complete defense thereto. Aguilar, 25 Cal. 4th at 850 (citing Cal. Civ. Proc. Code, § 437c(0)(2)). “In other wofds, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action — for example, that the plaintiff cannot prove element X.” Id. at 853.

As the Supreme Court further explained, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar, 25 Cal. 4th at 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851 (citing Evid. Code, § 602).

IV. ARGUMENT | There are simply no triable issues éf fact based on the evidence and as asserted in BZD’s Cross-Complaint. All of the Company’s business practices were proper, disclosed, and in line with industry custom. Tellingly, BZD’s allegations only consist of unsupported vague and conclusory statements that the Company has made “secret” payments, “on multiple occasions,” “in California and elsewhere,” “to their clients.” Such vague and conclusory allegations are legally untenable to make a triable issue of fact. BZD fails to identify a single secret payment or allege any specific conductAby the Company or Mr. Baughman to support its allegations. In

addition, BZD fails to point to any facts indicating how BZD or the industry as a whole has been 312661094.4 5

addition, BZD fails to point to any facts indicating how BZD or the industry as a whole has been 312661094.4 5 injured by the Company’s purported conduct. Consequently, Cross-Defendants have no idea what conduct they are alleged to have committed, or how they have purportedly violated the law. BZD’s insufficient Cross-Complaint, coupled with its refusal to provide any relevant evidence in support of its allegations requires the granting of 'Cross*—Defendants’ instant motion. Despite this lack of clarity, the evidence establishes that if is undisputed that Cross-Defendants did not violate any statutes as alleged in the Cross-Complaint; seeing as all payments the Company made were legal, fully disclosed, and in line with industry practice, The Cross-Complaint is nothing more than a desperate attempt to malign the Company and distract it from pursuing its claims against Bergmann and Zwerdling, who stole the Company’s trade secret client list and proprietary work product, and improperly solicited the Company’s clients in order to develop BZD’s business. Thus, no triable issue of fact exists as to any of BZD’s causes of action because such facts simply

injured by the Company’s purported conduct. Consequently, Cross-Defendants have no idea what conduct they are alleged to have committed, or how they have purportedly violated the law. BZD’s insufficient Cross-Complaint, coupled with its refusal to provide any relevant evidence in support of its allegations requires the granting of 'Cross*—Defendants’ instant motion. Despite this lack of clarity, the evidence establishes that if is undisputed that Cross-Defendants did not violate any statutes as alleged in the Cross-Complaint; seeing as all payments the Company made were legal, fully disclosed, and in line with industry practice, The Cross-Complaint is nothing more than a desperate attempt to malign the Company and distract it from pursuing its claims against Bergmann and Zwerdling, who stole the Company’s trade secret client list and proprietary work product, and improperly solicited the Company’s clients in order to develop BZD’s business. Thus, no triable issue of fact exists as to any of BZD’s causes of action because such facts simply

do not exist. | A. BZ1D’s Cross-Complaint Creates No Triable Issues of Fact in Its First Cause of Action for Violation of Section 17045 of California’s Unfair Practices Act

In its Cross-Complaint, BZD alleges that Cross-Defendants have made “secret bribes, payments, rebates, refunds, or commissions to certain of their clients” that violate Section 17045 of the California Unfair Practices Act. (Cross-Complaint at §9 17-22.)

Section 17045 states, as follows:

The secret payment or allowance of rebates, refunds, commissions, or unearned discounts, whether in the form of money or otherwise . . . to the injury of a competitor and where such payment or allowance tends to destroy competition, is unlawful.

Cal. Bus. & Prof. Code § 17045. Thus, in order to allege a violation of Section 17045, a plaintiff must allege three elements: (1) a “secret” payment or allowance of an “unearned” discount; (2) a resulting “injury” to a competitor; ané (3) a tendency to destroy competition. Diesel Elec. Sales & Serv., Inc. v. Marco Marine San Diego, Inc., 16 Cal. App. 4th 202, 211-12 (1993).

Here, (1) no sécret payments or allowances of an “unearned” discount to clients were ever made; (2) there was no injuryother competitor, because it is undisputed that BZD was founded on January 2, 2013, and thus were not a competitor prior to that formation déte, and moreover, no improper payment ever occurred to create an injury; and (3) there 1s no