Case Name: BrightEdge Technologies, Inc. v. Gabriel Martinez, et al.

Case No.: 2013-1-CV-256794

(1) Demurrer to Second Amended Complaint
(2) Anti-SLAPP Motion to Strike Second Amended Complaint
(3) Joinder in Demurrer to Second Amended Complaint by Defendants Searchmetrics, Inc. and Searchmetrics GmbH

Factual and Procedural Background

Plaintiff BrightEdge Technologies, Inc. (“BrightEdge”) provides search engine optimization (“SEO”) and analytical tools to its customers. (Second Amended Complaint (“SAC”), ¶14.) BrightEdge is the largest SEO software platform provider. (Id.)

Defendant Searchmetrics, Inc. (“Searchmetrics”) competes with BrightEdge in the field of SEO technology. (SAC, ¶15.) Searchmetrics licenses its software from defendant Searchmetrics GmbH. (Id.)

BrightEdge hired defendant Gabriel Martinez (“Martinez”) as an Account Executive in May 2012. (SAC, ¶17.) BrightEdge hired defendant Cullen McAlpine (“McAlpine”) as an Enterprise Business Representative Trainee on January 23, 2012. (SAC, ¶18.) McAlpine began working as an Account Executive on January 1, 2013. (Id.)

In connection with his employment at BrightEdge, Martinez entered into a Proprietary Information and Inventions Agreement (“PIIA”). (SAC, ¶19 and Exh. D.) In connection with his employment at BrightEdge, McAlpine entered into the same PIIA. (SAC, ¶20 and Exh. E.)

BrightEdge expends substantial effort and resources on developing sales leads or opportunities and converting those leads or opportunities into customers. (SAC, ¶21.) The identities and customer contact information are keys to BrightEdge’s business and the secrecy of that information is paramount to its success. (Id.) BrightEdge maintains this information as a trade secret marking such information as confidential. (Id.) The timing and amount of BrightEdge contracts is also trade secret. (Id.) BrightEdge maintained this proprietary information in a customer relationship database (“Salesforce Database”) which defendants Martinez and McAlpine had access to while employed with BrightEdge. (SAC, ¶¶22 – 23.)

Martinez sought employment with Searchmetrics by e-mailing defendant Shaun Siler (“Siler”), Searchmetrics’ Director of Sales, with a list of recent deals closed at BrightEdge. (SAC, ¶24.) On March 27, 2013, Searchmetrics offered Martinez employment as a Senior Sales Manager. (Id.) After receiving the offer from Searchmetrics, between March 27 and April 17, 2013, Martinez logged into his BrightEdge account on Salesforce.com to execute thousands of events and access numerous BrightEdge summary reports, sales dashboards, and customer account files, including accounts for which Martinez had no responsibility or involvement. (SAC, ¶25.) Searchmetrics contacted at least one BrightEdge customer after Martinez’s departure. (Id; see also ¶41.) Martinez also connected his BrightEdge-issued laptop to a personal external hard drive and used it to access BrightEdge’s Salesforce Database and retrieve/copy information. (SAC, ¶26.)

On April 3, 2013, Martinez accepted the employment offer from Searchmetrics, but did not inform BrightEdge. (SAC, ¶27.) Searchmetrics hired Martinez with knowledge of and because of his access to BrightEdge’s confidential customer and other information. (SAC, ¶28.) After accepting the offer with Searchmetrics but before giving notice, Martinez accessed his BrightEdge Salesforce account to download, view, and export BrightEdge trade secrets to his personal email. (SAC, ¶¶29 – 30 and 33.)

On April 8, 2013, Martinez gave notice of his resignation of employment at BrightEdge. (SAC, ¶31.) Martinez’s last day at BrightEdge was April 9, 2013 at which time he transitioned his accounts and returned his BrightEdge-issued laptop. (Id.) On April 9, 2013, Martinez downloaded a list of all 517 of BrightEdge’s actively paying customers which had been marked as “Confidential Information – Do Not Distribute.” (“517 Client List”). (SAC, ¶36.)

Searchmetrics uses a database (“Sugar Database”) to manage its customer information similar to BrightEdge’s Salesforce Database. (SAC, ¶37.) Searchmetrics records its customer information using software named SugarCRM or Sugar. (Id.) Some or all of the 517 Client List has been uploaded into Searchmetrics’ Sugar Database. (Id.)

After April 9, 2013, Martinez had no reason to access the Salesforce Database but nevertheless did so remotely and performed 67 “export” or “report” events and downloaded seven datasheets. (SAC, ¶38.) After his departure from BrightEdge, Martinez, with Searchmetrics’ knowledge, approval, and authorization, used BrightEdge’s confidential trade secret information to target BrightEdge customers for Searchmetrics. (SAC, ¶¶41 and 43.) Martinez also provided confidential BrightEdge information to other Searchmetrics employees to assist them in targeting BrightEdge customers. (SAC, ¶42.)

On September 5, 2013, McAlpine resigned from BrightEdge and began employment with Searchmetrics on or about September 20, 2013. (SAC, ¶44.) While employed at BrightEdge, McAlpine downloaded a spreadsheet record of trade secret customer sale and contact information from BrightEdge’s Salesforce Database including a list of 264 BrightEdge clients (“264 Client List”). (SAC, ¶45.) In violation of the PIIA, McAlpine took this record with him when he left employment with BrightEdge. (Id.) McAlpine provided the 264 Client List to Siler of Searchmetrics. (SAC, ¶46.) McAlpine used BrightEdge information to target BrightEdge clients on behalf of Searchmetrics and with Searchmetrics’ knowledge. (SAC, ¶50.) McAlpine and Siler sought to acquire more BrightEdge trade secret information by recruiting BrightEdge employees. (SAC, ¶51.)

Searchmetrics hired another former BrightEdge employee, Louis Bunya (“Bunya”), in February 2014. (SAC, ¶52.) In viewing Searchmetrics’ Sugar Database, Bunya recognized information that could have only come from BrightEdge. (Id.) Bunya left Searchmetrics in May 2014. (Id.)

Searchmetrics contacted and continues to contact customers and prospects whose information is contained in records held as trade secret by BrightEdge and improperly downloaded by Martinez, McAlpine, and others. (SAC, ¶53.) Searchmetrics used and continues to use BrightEdge trade secret records improperly downloaded by Martinez, McAlpine, and others. (SAC, ¶54.)

In or about March 2017, Searchmetrics GmbH and Searchmetrics entered into an agreement which assigned to Searchmetrics GmbH the trade secrets that Searchmetrics and the individual defendants misappropriated from BrightEdge. (SAC, ¶57.) Searchmetrics GmbH knew and had reason to know that BrightEdge’s trade secrets were acquired by improper means. (Id.) Searchmetrics GmbH is using the trade secret information in competition with BrightEdge causing injury to BrightEdge. (Id.)

On December 28, 2017, plaintiff BrightEdge filed the operative SAC against Martinez, Searchmetrics, McAlpine, Siler, and Searchmetrics GmbH asserting causes of action for:

(1) Trade Secret Misappropriation
(2) Civil Conspiracy to Commit Trade Secret Misappropriation
(3) Breach of Contract
(4) Civil Conspiracy

On January 29, 2018, defendants Searchmetrics and Searchmetrics GmbH filed the two motions now before the court, a demurrer and special motion to strike (anti-SLAPP) the SAC.

On February 5, 2018, defendant McAlpine filed a joinder in Searchmetrics and Searchmetrics GmbH’s demurrer to the fourth cause of action.

Discussion

I. Searchmetrics and Searchmetrics GmbH’s special motion to strike the SAC is DENIED.

A. The two-step procedure for anti-SLAPP motions.

Code of Civil Procedure section 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

B. Step one – threshold showing that the challenged cause of action arises from protected activity.

Defendants Searchmetrics and Searchmetrics GmbH have the initial burden of demonstrating that the first, second, and fourth causes of action and allegations of alter ego liability in the SAC “arise from” some protected activity. “Defendant need only make a prima facie showing that plaintiff’s complaint ‘arises from’ defendant’s constitutionally-protected free speech or petition activity.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶7:991, pp. 7(II)-55 citing Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458 – 459.)

“A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (); emphasis added.)

It is Searchmetrics and Searchmetrics GmbH’s position that their liability for the claims asserted in the SAC arise from protected activity and, specifically, arise from their filing of a bankruptcy petition. Searchmetrics and Searchmetrics GmbH explain that the instant litigation began in November 2013 with a complaint by BrightEdge for trade secret misappropriation and breach of contract against Martinez only. On March 4, 2014, BrightEdge filed a patent infringement action in federal district court against Searchmetrics and Searchmetrics GmbH. Thereafter, BrightEdge sought to amend its complaint in the federal action to include claims of trade secret misappropriation against Searchmetrics and Searchmetrics GmbH but the federal court denied BrightEdge’s motion to amend. In April 2015, BrightEdge obtained leave to add Searchmetrics, McAlpine, and Siler, but did not seek to add Searchmetrics GmbH.

Searchmetrics initiated a Chapter 11 bankruptcy petition on May 8, 2017. On or about June 29, 2017, the United States Bankruptcy Court granted BrightEdge’s motion to dismiss Searchmetrics’ bankruptcy petition on the basis that the bankruptcy petition was filed in an effort to resolve two-party litigation, not a proper use of bankruptcy.

Searchmetrics and Searchmetrics GmbH direct the court’s attention, in particular, to paragraph 67 of the SAC in which BrightEdge now alleges, “On information and belief, Searchmetrics GmbH has intended and continues to intend to have Searchmetrics, Inc. file for Chapter 7 (or some other form of) bankruptcy when it becomes clear that it [Searchmetrics] will face an adverse monetary judgment in this case. Searchmetrics’s counsel recently confirmed this possibility to the Court and to BrightEdge.”

BrightEdge further alleges, in relevant part, “Beginning in or around January 2017, Searchmetrics GmbH began taking additional steps to structure Searchmetrics, Inc. such that it would continue to operate as a business yet become insolvent if BrightEdge ever secured a judgment against it for its trade secret misappropriation. … this was the beginning of a scheme by Searchmetrics GmbH to manufacture an eventual bad-faith Chapter 11 bankruptcy filing by Searchmetrics, Inc. and frustrate BrightEdge’s efforts to secure and collect a monetary judgment in this case.” (SAC, ¶68.)

“On May 8, 2017, Searchmetrics, Inc. filed a petition for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Delaware (“Bankruptcy Court”). During the course of the bankruptcy proceedings, both Searchmetrics, Inc. and Searchmetrics GmbH represented (explicitly or implicitly) to the Bankruptcy Court that Searchmetrics GmbH would stop funding Searchmetrics, Inc. if the Chapter 11 Bankruptcy petition were dismissed. Both Searchmetrics, Inc. and Searchmetrics GmbH represented (explicitly or implicitly) to the Bankruptcy Court that Searchmetrics, Inc. would become insolvent if Searchmetrics GmbH refused to continue providing funding. The Bankruptcy Court noted these representations in ruling from the bench on June 29, 2017 that it would dismiss the Chapter 11 Bankruptcy petition. … On information and belief, Searchmetrics GmbH used the Chapter 11 bankruptcy petition as an excuse in an attempt to place all liability with Searchmetrics, Inc. while at the same time setting Searchmetrics, Inc. up for insolvency in the even BrightEdge obtained a favorable judgment in this case.” (SAC, ¶74.)

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.) “The anti-SLAPP statute’s definitional focus is not [on] the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Id. at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

Here, Searchmetrics and Searchmetrics GmbH conflate the evidentiary allegations concerning their vicarious liability under an alter ego theory with allegations of their underlying liability for trade secret misappropriation and conspiracy. Searchmetrics and Searchmetrics GmbH’s underlying liability for trade secret misappropriation and conspiracy are based principally upon allegations that Searchmetrics hired Martinez and McAlpine with knowledge that they improperly obtained BrightEdge’s trade secret information and the subsequent use of BrightEdge’s confidential trade secret information, with Searchmetrics’ knowledge, approval, and authorization, to target BrightEdge customers for Searchmetrics. (SAC, ¶¶41 and 43.)

The court understands why Searchmetrics GmbH might be tempted to argue that its alter ego liability is premised upon protected activity and, thus, subject to a special motion to strike under Baral v. Schnitt (2016) 1 Cal.5th 376. “Alter ego is essentially a theory of vicarious liability under which the owners of a corporation may be held liable for harm for which the corporation is responsible.” (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 249.) Alter ego liability may also imposed on a parent corporation for the liability of its subsidiary “only if (i) the parent controlled the subsidiary to such a degree that it was a ‘mere instrumentality’ of the parent used for an improper purpose, and (ii) an inequitable result would otherwise occur.” (Friedman, CAL. PRAC. GUIDE: CORPORATIONS (The Rutter Group 2006) ¶2:52.7, pp. 2-29 to 2-30 citing Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 742.) However,

The “principal thrust or gravamen” of [a plaintiff’s] claim determines whether section 425.16 applies. [Citations.] The “ ‘meaning of “gravamen” is clear; “gravamen” means the “material part of a grievance, charge, etc.” [Citation.]’ [Citation.] [¶] In the context of the anti-SLAPP statute, the ‘gravamen is defined by the acts on which liability is based….’ [Citation.] The ‘focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. [Citations.]’ [Citation.]” [Citation.]

(Olive Properties v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1175.)

The injury producing conduct here is the misappropriation, not the filing of the bankruptcy petition. The bankruptcy filing might evidence the inequitable result which may perhaps support vicarious alter ego liability against Searchmetrics GmbH, but is not, in and of itself, the conduct which produced the underlying harm. In other words, the use of bankruptcy proceedings to avoid paying for damages in a resulting judgment is not the conduct which gives rise to those damages in the first instance. The court finds here that defendants Searchmetrics and Searchmetrics GmbH have not met their initial burden of demonstrating that a cause of action against them arises from any act in furtherance of their right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.

C. Step two – probability of prevailing.

“[I]f a court ruling on an anti-SLAPP motion concludes the challenged cause of action arises from protected petitioning, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. To satisfy this prong, the plaintiff must state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; internal citations and punctuation omitted.) “The court does not weigh credibility or comparative strength of the evidence. The court considers defendant’s evidence only to determine if it defeats plaintiff’s showing as a matter of law.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Since defendants Searchmetrics and Searchmetrics GmbH have not met their initial burden, the burden has not shifted to plaintiff BrightEdge to demonstrate a probability of prevailing on its claims. Accordingly, defendants Searchmetrics and Searchmetrics GmbH’s special motion to strike plaintiff BrightEdge’s SAC is DENIED.

II. Searchmetrics and Searchmetrics GmbH’s demurrer to the SAC and McAlpine’s joinder thereto is OVERRULED, in part, and SUSTAINED, in part.

A. Searchmetrics GmbH’s demurrer to the first cause of action of plaintiff BrightEdge’s SAC is OVERRULED.

“A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.)

Defendant Searchmetrics GmbH demurs to the first cause of action in plaintiff BrightEdge’s SAC on the ground that it is barred by the applicable three year statute of limitations. “An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.” (Civ. Code, § 3426.6.)

According to Searchmetrics GmbH, BrightEdge had notice of misappropriation when it initiated this action against Martinez in November 2013. However, nothing on the face of BrightEdge’s original complaint against Martinez clearly and affirmatively demonstrates BrightEdge’s discovered or should have discovered misappropriation by Searchmetrics GmbH. Nor does paragraph 24 of the SAC clearly and affirmatively reflect BrightEdge’s actual or inquiry notice of Searchmetrics GmbH’s misappropriation.

At the very latest, Searchmetrics GmbH contends the statute of limitations accrued no later than October 1, 2014 when BrightEdge sought leave to amend its federal patent infringement claim to include claims for trade secret misappropriation against Searchmetrics GmbH. In seeking leave to amend, BrightEdge openly acknowledged and argued that it had reason to suspect Searchmetrics GmbH’s liability for misappropriation. Since BrightEdge did not file its SAC until December 28, 2017, more than three years later, Searchmetrics GmbH contends the cause of action is barred.

In opposition, BrightEdge argues that even if the court takes judicial notice of the fact that it sought leave to amend against Searchmetrics GmbH on October 1, 2014, BrightEdge timely commenced this action if tolling is accounted for. “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.” (Code Civ. Proc., § 356.) BrightEdge submits declarations concerning the 69 day bankruptcy stay and a stipulated stay by the parties from July 27, 2017 until October 1, 2017. In view of this factual dispute, Searchmetrics GmbH has demonstrated only that the SAC might be barred. Since the running of the statute of limitations does not appear clearly and affirmatively, Searchmetrics GmbH’s demurrer to the first cause of action of plaintiff BrightEdge’s SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

For purposes of this demurrer, the court need not decide whether the alleged act of misappropriation in paragraph 57 of the SAC constitutes a continuing misappropriation or a new act of misappropriation.

Searchmetrics GmbH separately demurs to the first and second cause of action on the ground that its liability is premised on deficient alter ego allegations. “[I]t is generally stated that in order to prevail on an alter-ego theory, the plaintiff must show that ‘(1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected.’ [Citation.]” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811 (Zoran).) Significantly, “Whether a party is liable under an alter-ego theory is normally a question of fact.” (Ibid.) Notably, the Zoran court found genuine issues of material fact precluding summary judgment on the issue of alter ego liability. On a demurrer, the court cannot state that the factual allegations of alter ego liability fail as a matter of law. Accordingly, Searchmetrics GmbH’s demurrer to the first and second causes of action of plaintiff BrightEdge’s SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

As such, the court need not decide Searchmetrics GmbH’s additional argument that the alleged “agreement” to transfer (see SAC, ¶57) does not constitute misappropriation.

B. Searchmetrics GmbH’s demurrer to the second cause of action of plaintiff BrightEdge’s SAC is OVERRULED.

Searchmetrics GmbH demurs to the second cause of action in plaintiff BrightEdge’s SAC for conspiracy by, first, incorporating its arguments above regarding the statute of limitations. For the reasons stated above, a demurrer on this ground is overruled.

Second, Searchmetrics GmbH argues a conspiracy cause of action fails to the extent that it relies on paragraph 57 of the SAC. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510 – 511.) “The elements of a civil conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048; see also CACI, No. 3600.) Searchmetrics GmbH’s second argument is essentially that there was no agreement in 2017 between Searchmetrics and Searchmetrics GmbH to acquire BrightEdge’s trade secrets. However, the relevant allegation is found at paragraph 95 where BrightEdge alleges, “Each Defendant had knowledge of and agreed to the actions taken by the other Defendants to misappropriate BrightEdge’s trade secrets,” an allegation which this court must accept as true for purposes of demurrer. “The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.” (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1328.)

Third, Searchmetrics GmbH argues, to the extent the conspiracy is premised on activities taken in connection with the bankruptcy petition, those actions are protected by the litigation privilege. This argument implicitly acknowledges that the conspiracy is not premised entirely and instead only in part on the bankruptcy petition activities. The court declines to address this argument as it is directed at only a portion of the cause of action. A defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action;” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274—“A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.”)

Accordingly, Searchmetrics GmbH’s demurrer to the second cause of action of plaintiff BrightEdge’s SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

C. Searchmetrics and Searchmetrics GmbH’s demurrer to the fourth cause of action of plaintiff BrightEdge’s SAC and McAlpine’s joinder thereto is SUSTAINED.

Searchmetrics, Searchmetrics GmbH and McAlpine demur to BrightEdge’s fourth cause of action entitled, “Civil Conspiracy,” on the basis that it is no different from the second cause of action and, therefore, surplusage. To the extent it attempts to plead something different than the “Civil Conspiracy to Commit Trade Secret Misappropriation” alleged in the second cause of action, the moving defendants argue it is preempted by the California Uniform Trade Secrets Act [CUTSA].

BrightEdge offers no substantive discussion or argument in response to these particular arguments except to say that conspiracy is an alternative to alter ego. This does not address defendants’ argument specifically as to the fourth cause of action. Accordingly, Searchmetrics, Searchmetrics GmbH, and McAlpine’s demurrer to the fourth cause of action of plaintiff BrightEdge’s SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED WITHOUT LEAVE TO AMEND.