Case Name: Zurvan Mahamedi, et al. v. Manuel Chavez
Case No.: 2017-CV-309658

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Defendant Manuel Chavez

Factual and Procedural Background

This is a negligence case. Plaintiff Zurvan Mahamedi (“Mahamedi”) and William Paradice (“Paradice”) were the sole partners in a law firm called Mahamedi Paradice LLP. (Complaint at ¶ 6.) From approximately 2012-2016, defendant Manuel Chavez (“Chavez”) was contracted to provide information technology consulting services to Mahamedi Paradice LLP. (Id. at ¶ 7.) Among other things, Chavez managed the email system and a client database which contained highly sensitive client information, including client files, patent applications, billing information and proprietary research (“Confidential Information”). (Ibid.)

In April 2016, Paradice withdrew from Mahamedi Paradice LLP in order to start a new law firm, Paradice and Li LLP. (Complaint at ¶ 8.) Although the separation was contentious, Mahamedi and Paradice signed a Partner Separation Agreement which resolved a number of issues, including the procedure by which Paradice could take his files from Mahamedi Paradice LLP to his new firm. (Ibid.) Upon Paradice leaving Mahamedi Paradice LLP, it was renamed Mahamedi IP Law LLP. (Ibid.)

Thereafter, Chavez provided consulting services for both Mahamedi and Paradice through the transition, and the transfer of files and emails to Paradice and Li LLP. (Complaint at ¶ 10.) After the Partner Separation Agreement was signed, Mahamedi told Chavez to assist Paradice to extract only the Paradice Client files from the Prolaw Database. (Id. at ¶ 11.) However, Mahamedi later discovered that Chavez copied the entire Prolaw Database, and further that he stored it offsite, out of the control of Mahamedi, until it was delivered to Paradice. (Ibid.) Chavez knew or should have known that the Prolaw Database included Confidential Information relating to Mahamedi Clients that was not supposed to be copied, stored offsite, or given to Paradice. (Ibid.) Chavez also copied the Outlook PST files for former Mahamedi Paradice LLP employees who left with Paradice (the “Former Employees”) and installed the same on email accounts of Paradice and Li LLP—even though Chavez knew or should have known that such mailboxes contained Confidential Information belonging to Mahamedi Clients. (Id. at ¶ 12.)

As part of the Mahamedi Paradice LLP transition, Mahamedi also asked Chavez to manage the handling of emails in accordance with Section 7 of the Partner Separation Agreement and related agreements between Mahamedi and Paradice. (Complaint at ¶ 13.) Under Section 7 of the Agreement, incoming emails addressed to wparadice@mppatentlaw.com and qualcomm@mppatentlaw.com, and certain other email addresses, were to be auto-forwarded to Paradice at his new email address at Paradice and Li LLP. (Id. at ¶ 14.) Chavez was responsible for implementing the New Alias Policy, and for implementing the auto-forwarding of emails which specified “wparadice@mppatentlaw.com”; “wparadice@mpkpatentlaw.com”; and “qualcomm@mppatentlaw.com.” (Id. at ¶ 18.) Chavez was never instructed to create email aliases for Former Employees. (Ibid.)

Instead of implementing the New Alias Policy to apply only to Mahamedi IP Law LLP employees, Chavez negligently implemented this email policy so that it applied to all email mailboxes, including the mailboxes of Former Employees. (Complaint at ¶ 19.) As a result of defendant Chavez’s implementation of the auto-forwarding policy, emails that had been sent to wparadice@mppatentlaw.com and qualcomm@mppatentlaw.com were automatically forwarded to Paradice at his new email address at Paradice and Li LLP. (Id. at ¶ 20.) In addition, as a result of Chavez’s negligent implementation of the New Alias Policy, the email addresses on the forwarded message which had an “@mppatenlaw.com” alias were changed to an “@m-iplaw.com” email alias, including those of Paradice and Former Employees. (Ibid.) Therefore, Paradice, as the recipient of one of those auto-forwarded messages, saw email addresses for himself and the Former Employee as being from “@m-iplaw.com.” (Ibid.)

Mahamedi was not aware that the email aliases of the auto-forwarded emails to Paradice were being changed from “@mppatentlaw.com” to “m-iplaw.com.” (Complaint at ¶ 21.) Mahamedi learned of the issue on May 4, 2016 when he received a cease and desist letter from Paradice. (Ibid.) Mahamedi immediately contacted Chavez and requested that he address the “email glitch.” (Ibid.) On May 5, 2016, Chavez confirmed that he had fixed the “email glitch” and admitted that he had failed to follow Mahamedi’s direction with respect to how the mailboxes of the Former Employees were to be handled. (Ibid.)

On May 4, 2017, plaintiffs Mahamedi and Mahamedi IP Law LLP (collectively, “Plaintiffs”) filed the operative Complaint against Chavez setting forth a single claim for negligence.

On June 8, 2017, defendant Chavez filed an Answer alleging various affirmative defenses and counterclaims.

Motion for Summary Judgment

Currently before the Court is the motion for summary judgment, or in the alternative, summary adjudication to the Complaint by defendant Chavez. (Code Civ. Proc., § 437c.) Plaintiffs filed written opposition. Chavez filed reply papers and objections to evidence. No trial date has been set.

Motion for Summary Adjudication

As a preliminary matter, Chavez’s notice of motion makes an alternative request for summary adjudication. “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).) “If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion… [Citation]. There is a sound reason for this rule: ‘… the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.’ [Citation.]” (Gonzalez v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1546.)

Here, the notice of motion does not provide Plaintiff or the Court with notice of the specific causes of action or issues that Chavez intends to summarily adjudicate. In addition, despite points raised in the moving papers, the Complaint alleges only a single claim for negligence. Therefore, there is no basis for a motion for summary adjudication and the Court treats the present application as a motion for summary judgment.

Deficient Separate Statement

As the opposition points out, the separate statement of undisputed facts filed by defendant Chavez fails to comply with the California Code of Civil Procedure and Rules of Court.

Every motion for summary judgment must be accompanied by a “separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The statement of undisputed material facts must separately identify each cause of action, claim, issue of duty or affirmative defense and each supporting material fact claimed to be without dispute with respect to that cause of action, claim, issue of duty or affirmative defense. (Cal. Rules of Court, rule 3.1350(d).) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. (Cal. Rules of Court, rule 3.1350(d)(2).)

In addition, the separate statement must be in the two-column format specified in California Rules of Court, rule 3.1350(h). “The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(d)(3).)
“The parties’ separate statements ‘are intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ [Citation.]” (St. Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co. (2003) 111 Cal.App.4th 1243, 1248.)

A defendant who fails to comply with the separate statement requirement may in the court’s discretion constitute a sufficient ground for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1).)

In support of the motion, Chavez filed a document titled “Statement of Undisputed Facts.” The statement does not comply with the format required by California Rules of Court, rule 3.1350(h). Instead, the statement submitted by Chavez lists a total of 43 facts, some supported by evidence, others which are not. In fact, the statement itself reads more like a recitation of the facts underlying this case more than a separate statement in support of a motion for summary judgment. Despite this clearly deficient separate statement, the Court notes that Chavez has submitted at least some evidence in support of his motion, mostly in the form of declarations. Having done so, the Court will address the motion on its merits. (See Code Civ. Proc., § 437c, subd. (c) [court shall consider all of the evidence set forth in the papers in deciding whether to grant summary judgment]; see also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [it may be an abuse of discretion to disregard evidence that was clearly called to the attention of the court and opposing parties but inadvertently omitted from the separate statement of undisputed facts].) The Court admonishes defense counsel to adhere to court rules and procedures with respect to future filings.

Chavez’s Evidentiary Objections

In reply, Chavez filed objections to the Declaration of plaintiff Mahamedi submitted in opposition to the motion. The Court SUSTAINS Objection Nos. 4 and 5. The Court OVERRULES Objection Nos. 1, 3, 10, 14, and 15. The Court declines to rule on the remaining objections which are not material in resolving issues raised by the motion for summary judgment. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Legal Standard

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant has shown that one or more elements of the plaintiff’s cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he defendant bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.) “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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [fn. omitted].) The evidence in favor of the party opposing the motion must be liberally construed, and all doubts concerning the evidence must be resolved in favor of that party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

Negligence

The Complaint alleges a single claim for negligence. The elements of a cause of action for negligence are: the “defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292-293.)

According to the Complaint, Chavez represented himself as a specialist in information technology having the skill, care, and knowledge to perform highly specialized IT services, particularly for law firms. (Complaint at ¶ 25.) Thus, Plaintiffs claim that Chavez owed them a duty to exercise reasonable care in the performance of his work for them. (Id. at ¶ 26.) Plaintiffs allege that Chavez breached his duty of care with respect to his actions in (1) implementing the New Alias Policy and (2) unlawful copying of Confidential Information relating to Mahamedi Clients. (Id. at ¶ 27.) As a result of his conduct, Plaintiffs have been injured in an amount to be proved at trial. (Id. at ¶ 28.)

Chavez argues that Plaintiffs cannot establish the elements of duty, breach of duty, causation, and damages to support a claim for negligence.

Duty

In general, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances. (Rowland v. Christian (1968) 69 Cal.2d 108, 112 (Rowland); Civ. Code, § 1714.) In Rowland, the California Supreme Court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, supra, at p. 113.) However, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where “clearly supported by public policy.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771; Rowland, supra, at p. 112.)

Here, Chavez argues there is no duty of care applicable to computer technicians. This argument however is underdeveloped as Chavez fails to cite any legal authority to support this position or address the Rowland factors to explain why no duty of care exists. Instead, Chavez cites Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 (Flowers) where the California Supreme Court considered the distinction between “ordinary” and “professional” negligence and concluded that with respect to questions of substantive law they comprise essentially one form of action. (Flowers, supra, at p. 995.) Flowers does not address whether an IT technician owes a duty of care under circumstances similar to this case and therefore is inapposite. Thus, the issue of duty cannot be resolved on this motion for summary judgment.

Breach of Duty

The question whether an act or omission will be considered a breach of duty necessarily depends upon the scope of the duty imposed. (Federico v. Super. Ct. (1997) 59 Cal.App.4th 1207, 1211.) Generally, whether a defendant was negligent constitutes a question of fact for the jury. (Biles v. Richter (1988) 206 Cal.App.3d 325, 332; Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713 (Osborn).) However, where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted. (Osborn, supra, 205 Cal.App.3d at pp. 712-713.)

As stated above, Plaintiffs allege that Chavez breached his duty of care through his actions in (1) implementing the New Alias Policy and (2) unlawful copying of Confidential Information relating to Mahamedi Clients. (Complaint at ¶ 27.) As a threshold matter, Chavez’s separate statement does not include any material facts or supporting evidence to challenge the breach of duty allegations. Instead, Chavez argues that Plaintiffs’ injuries due to the email glitch and data copying were not foreseeable. This argument however appears largely speculative and not supported by the evidence. Nor does Chavez submit any affirmative evidence demonstrating that his actions did not breach a duty of care to the Plaintiffs. In any case, Plaintiffs raise a triable issue of fact on whether defendant Chavez breached his duty of care to them. (See Declaration of Mahamedi at ¶¶ 3, 8, 9, 18, 19, 31.)

Causation

“California has adopted the ‘substantial factor’ test for cause-in-fact determinations.” (Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33.) “A defendant’s negligent conduct may combine with another factor to cause harm; if a defendant’s negligence was a substantial factor in causing the plaintiff’s harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff’s harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

“In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant’s breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.)

“Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)

Here, Chavez asserts that neither the email glitch nor the data copying were a substantial factor in causing Plaintiffs’ injuries. Instead, Chavez contends Plaintiffs’ injuries are the result of a toxic relationship between Paradice and Mahamedi which ultimately led to Paradice filing a lawsuit against him. The Court once again notes that the issue of causation is not addressed as part of the material facts or supporting evidence in the separate statement. Also, this argument is misplaced as Plaintiffs allege that Chavez‘s actions with respect to the email glitch and data copying were the proximate cause of their injuries in this action, not the Paradice lawsuit. (See Complaint at ¶¶ 27-28; see also Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387 [“A summary judgment motion is directed to the issues framed by the pleadings.”].) Nor does Chavez submit any affirmative evidence demonstrating that his actions were not the proximate cause of Plaintiffs’ injuries. Even if he did, Plaintiffs raise a triable issue of fact with respect to causation to defeat the motion for summary judgment. (See Declaration of Mahamedi at ¶¶ 3, 8, 9, 18, 19, 29, 31, 32.)

Damages

Finally, Chavez argues that Plaintiffs cannot establish damages to support a claim for negligence. “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. [Citations.]” (Budd v. Nixen (1971) 6 Cal.3d 195, 200; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749-750.)

As a preliminary matter, Chavez’s separate statement does not include any material facts or supporting evidence addressing the argument for damages. Nor does Chavez submit any affirmative evidence showing that Plaintiffs cannot establish their claim for damages. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 [“[P]ointing out the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden of production. The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”].) Also, despite points raised in the moving papers, the Court finds Plaintiffs have sufficiently pled their claim for damages to support negligence. (See Complaint at ¶¶ 27-28, Prayer for Relief; see also 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.”].) In any case, Plaintiffs raise a triable issue of fact with respect to damages to defeat the motion for summary judgment. (See Declaration of Mahamedi at ¶¶ 4, 32, 33.)

Disposition

The motion for summary judgment is DENIED.

MOTION FOR SANCTIONS

In light of this order, the hearing on the motion for sanctions that was continued to April 3, 2018 is ordered OFF CALENDAR.

The Court will prepare the order.