Case Name: BBBB Bonding Corporation v. Ashley Pilling-Miller, et al.

Case No.: 17CV318613

Motion of Defendant BBBB Bonding Corporation for Protective Order

Factual and Procedural Background

Plaintiff BBBB Bonding Corporation (“Bad Boys”) is a leading company in the provision of bail bonds in Northern and Southern California. (Complaint, ¶6.) Bad Boys continues to grow due to its innovative marketing techniques which include the creation and use of a confidential list of attorneys who refer clients to Bad Boys. (Id.)

Bad Boys employed defendant Ashley Pilling-Miller (“Miller”) from November 12, 2013 until her resignation on or about June 26, 2017. (Complaint, ¶7.) While employed at Bad Boys, defendant Miller had access to Bad Boys’ proprietary information and trade secrets including, but not limited to, the confidential list of referring attorneys (“Confidential Information”). (Complaint, ¶¶7 – 8.) In recognition of this fact, defendant Miller signed a confidentiality agreement. (Complaint, ¶8.) Miller misappropriated Bad Boys’ trade secrets and breached the confidentiality agreement by, among other things, taking and sharing Bad Boys’ Confidential Information with Ryan Leary, an employee of Premiere Bail Bonds, for her own personal gain and without the authority, consent, or permission of Bad Boys. (Complaint, ¶¶9, 11, 12, 13, and 16.) As a result of defendant Miller’s acts, Bad Boys has suffered damages and lost revenue. (Complaint, ¶¶10 and 15.)

On November 3, 2017, plaintiff Bad Boys filed a complaint against defendant Miller asserting causes of action for:

(1) Violation of the Uniform Trade Secrets Act
(2)
(3) Conversion
(4)
(5) Intentional Interference with Prospective Business Advantage
(6)
(7) Violation of Labor Code §2860
(8)
(9) Violation of Labor Code §§2854, 2865
(10)
(11) Unlawful, Unfair, and Fraudulent Competition Under California Business & Professions Code §17200, et seq.
(12)
(13) Breach of Contract
(14)
(15) Breach of Fiduciary Duty
(16)
(17) Violation of Federal Computer Fraud and Abuse Act (18 U.S.C. §§1030(a)(2)(C) & (a)(4) & (a)(5))
(18)
(19) Violation of Computer Data Access and Fraud Act (Cal. Penal Code §502)
(20)

On December 21, 2017, defendant Miller filed a demurrer to the first, fifth, and ninth causes of action in plaintiff Bad Boys’ complaint.

On March 1, 2018, the court issued an order overruling defendant Miller’s demurrer to the first cause of action, but sustaining, with leave to amend, defendant Miller’s demurrer to the fifth and ninth causes of action.

Plaintiff Bad Boys did not amend its complaint and on April 2, 2018, defendant Miller filed an answer to plaintiff Bad Boys’ complaint.

I. Plaintiff Bad Boys’ motion for protective order is DENIED.
II.

A. Discovery dispute.
B.

On approximately April 23, 2018, defendant Miller served plaintiff Bad Boys with, among other discovery requests, a request for production of documents (“RPD”), set one, which included a request for production of Bad Boys’ ultimate trade secrets.

Between October 4, 2018 and December 12, 2018, plaintiff’s counsel and defendant’s counsel engaged in extensive meet and confer efforts.

On December 12, 2018, defendant Miller filed a motion to compel plaintiff Bad Boys’ further response to RPD and production, including production of Bad Boys’ ultimate trade secrets.

Counsel continued to meet and confer to address the production of plaintiff Bad Boys’ ultimate trade secrets with plaintiff Bad Boys’ counsel offering for months to lodge its trade secrets with a neutral third party.

On March 20, 2019, defendant Miller’s counsel finally accepted plaintiff’s offer to lodge its ultimate trade secrets with a neutral third party for supervised inspection by defendant’s attorneys.

Despite the stipulation, defendant continued to pursue the motion to compel which was heard on April 11, 2019. Judge Zayner’s tentative ruling on April 10, 2019 acknowledged the parties’ March 20, 2019 agreement and contemplated production of plaintiff Bad Boys’ ultimate trade secrets by that method. On April 11, 2019, Judge Zayner amended his tentative ruling and ordered that, “Plaintiff Bad Boys shall produce all documents other than attorney-client privileged and attorney work product documents responsive to request numbers 1 – 3, 7 – 10, and 13, with which it was agreed to comply pursuant to Code of Civil Procedure section 2031.210(a)(1), by no later than May 31, 2019; provided, however, that Plaintiff Bad Boys shall be entitled to file a motion for protective order regarding the production of documents that Plaintiff contends constitute its ultimate trade secrets (e.g., RFP #’s 7 – 8). The filing of such a motion for protective order will stay the May 31, 2019 production date until such time as the motion for protective order is resolved.”

On May 31, 2019, plaintiff Bad Boys filed the instant motion for protective order.

C. Merits.
D.

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code Civ. Proc., §2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: … That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” (Code Civ. Proc., §2031.060, subd. (b)(5).)

Civil Code section 3426.5 states, “In an action under this title, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”

Plaintiff Bad Boys seeks a protective order which directs that its ultimate trade secrets be held exclusively by a neutral third party for a supervised inspection by defendant’s attorneys, as defendant’s counsel agreed on March 20, 2019.

In opposition, defendant’s counsel contends plaintiff’s counsel’s assertion of a purported agreement to lodge the trade secrets with a neutral is misleading. Defendant’s counsel proffers a declaration stating that he emailed plaintiff’s counsel less than one hour after the conclusion of the deposition where the purported agreement occurred to memorialize defendant’s position that defendant was receptive to plaintiff’s proposal to lodge the trade secrets with a neutral, but only if plaintiff agreed to pay for all costs associated with lodging and to pay defense counsel’s fees incurred in having to travel to and from the location of the documents. Plaintiff has not indicated it would agree to this condition.

Absent an agreement to defendant’s condition, defendant contends the protective order that plaintiff Bad Boys now seeks is unnecessary in light of a stipulated protective order filed on September 12, 2018 which allows plaintiff Bad Boys to designate any items produced during discovery as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

The court tends to agree with defendant’s position that the stipulated protective order is sufficient. Accordingly, plaintiff Bad Boys’ motion for protective order is DENIED.

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Plaintiff BBBB Bonding Corporation (“Plaintiff”) brings this Motion for Leave to File a First Amended Complaint (“FAC”). In its moving papers, Plaintiff brings this motion to add Ryan Leary and Premiere Bonds as defendants to the instant action and to add facts that Plaintiff learned about Leary and Premiere Bonds since the filing of its original Complaint. Plaintiff’s motion does not seek to add any additional or new causes of action. Plaintiff makes the following arguments in its moving papers in support of its motion for leave to amend: (1) California has a liberal policy towards allowing amendments; (2) leave to amend should be granted because Plaintiff recently procured evidence during discovery that supports liability against Leary and Premiere Bonds; and (3) there is no prejudice to Defendant Ashley Pilling-Miller (“Defendant”) as no trial date has been set and there has only been one deposition taken to date.

The motion is opposed by Defendant. In her opposition, Defendant argues: (1) that Plaintiff has known of the grounds for its proposed claims against Leary and Premiere Bonds since before the Complaint was filed in November of 2017 and has unreasonably delayed in seeking to add those parties to the lawsuit; (2) Defendant would be prejudiced by the proposed amendments as an order allowing leave to amend would further delay the already protracted discovery process; and (3) Plaintiff’s delay in seeking leave to amend suggests ulterior motivation for naming Leary and Premiere after two years of litigation.

In reply, Plaintiff reiterates that their motion is timely because it was not until Plaintiff conducted discovery that they were able to develop a sufficient basis to allege claims against Leary and Premiere Bonds. Plaintiff acknowledges that they had general suspicions about Leary and Premiere when the original Complaint was filed, but did not have adequate evidence at that time to name them as defendants. In addition, Plaintiff argues that there is no prejudice to Defendant by the proposed amendment and plenty of time to complete discovery as the trial date has not yet been set.

Motions for leave to amend are directed to the discretion of the Court. “The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .” (Code Civ. Proc., §473(a)(1), emphasis added.) The law generally favors amendments on the basis that cases should include all disputed matters between parties and be decided on their merits. However, if the party seeking amendment has been dilatory and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (See Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490.)

“If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Super. Ct. (1959) 172 Cal.App.2d 527, 530.)

“Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; see also Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

In the instant case, the Court will exercise its discretion to grant leave to amend. First, the case is not yet set for trial and the parties will have time to conduct necessary discovery and, if necessary, motion practice. Second, the court is not convinced that Plaintiff had the evidence they needed to name the new parties at the time of the original Complaint and Plaintiff counsel’s declaration sets forth some of the information and evidence obtained during discovery that led to the instant motion. Finally, as noted by both sides, California courts have a liberal policy in favor of allowing amendments so that matters can be fully tried on the merits and the Court is not convinced that there is sufficient prejudice or delay to deny the instant motion. Accordingly, the Motion for Leave to Amend is GRANTED.
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