1. Motion by Defendants for Protective Order:

(a) Defendants David P. Schiller, Michael Rice, Carlos Marcial, Alejandra Diaz, Angelique Racicot, Tammy Hall, and D’Andrea Visual Communications, LLC’s motion for protective order is granted in part and denied in part.

(i) The court grants the motion for an order for production of confidential documents without an attorneys’ eyes only provision.

(ii) It appears that the parties are in agreement as to the other provisions of a protective order. The parties are to submit a proposed protective order, without an attorneys’ eyes only provision, for the court’s signature.

(iii) A party seeking an AEO protective order for information related to a cause of action must show good cause for such an order. [See GT, Inc. v. Superior Court (1984) 151 Cal. App. 3d 748, 754.] Here, Plaintiff argues that its “private financial documents” (which are otherwise unspecified) should be AEO only because Defendants have never seen them before, Plaintiff is not a public company, and – Plaintiff accuses – Defendants have used other discovery information to attempt to harass Plaintiff with an OSHA investigation. Plaintiff provides no evidentiary support for these assertions. Moreover, Plaintiff does not describe just what information it is referring to by “private financial documents” or explain how Defendants could and likely would misuse the information despite a protective order that such information is to be used only for purposes of litigation.

An AEO designation is more than an inconvenience. It interferes with the attorney client relationship and the building of the party’s case. Accordingly, an AEO limitation should not be imposed without a clear showing of necessity.
Plaintiffs have not made that showing.

(iv) The court further orders that no depositions of parties or their officers, directors, or employees shall take place until the protective order is entered and both sides have produced pursuant to the protective order the documents and information they have been withholding from production pending entry of a protective order.
At that time the parties are to meet and confer in order to agree to a deposition schedule. If they cannot agree, the motion for protective order establishing a deposition schedule may be renewed. The court will consider setting a deposition order different than the order in which the deposition notices were served.

“(F)or good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” Code Civ. Proc. § 2019.020(b). The court may change the usual order of depositions, although it should not do so lightly. Rosemont v. Superior Court (1964) 60 Cal. 2d 709, 714. As a general rule, the advantage gained by the party first to take depositions is not grounds for a protective order. Id. On the other hand, using that priority to gain information while refusing to produce information to the other side is inequitable. Id.

Moving Party shall give Notice.

2. Demurrer by Defendant D’Andrea Visual Communications, LLC [“DVC”] to Amended Complaint:

The request for judicial notice by defendant DVC is granted as to items A-E and G. It is denied as to item F.

DVC’s demurrer to the second and third cause of action of plaintiff Super Color Digital, LLC’s second amended complaint (“SAC”) is overruled.

The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory plead-around (i.e., explanation) for the change. [See Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 751; State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4th 402, 412.]
Here, Plaintiff’s prior allegations do not foreclose the possibility of a conspiracy including DVC or otherwise amount to an admission that DVC was not a part of the alleged conspiracy. Accordingly, the sham pleading doctrine does not foreclose the allegations of the SAC regarding DVC’s participation in the alleged conspiracy.

Defendant shall answer the complaint within 10 days.

Responding Party shall give Notice.

3. Motion by DVC to Strike Portions of the Complaint:

DVC’s motion to strike is denied in its entirety.

A part of a pleading may be stricken if it is “irrelevant, false or improper” or “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” Code Civ. Proc. § 436. Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010). The allegations of the complaint are presumed true; they are read as a whole and in context. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. The same liberal policy toward amendment that governs the sustaining of demurrers applies when granting motions to strike. Therefore, as long as the defect is correctible, an amended pleading will usually be allowed. [See Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 168.]

(a) Falsity

A motion to strike may only be based on the pleadings or matters of which the court may take judicial notice. Code Civ. Proc. § 437. As a result, it is difficult to establish falsity on a motion to strike. Code Civ. Proc. §§ 436, 437; see Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶¶ 7:169, 7:176 (motion to strike for falsity cannot be based on anything outside complaint and judicial notice, so rarely successful).

On the pleadings, paragraphs 17 (job description confidential) and 23 (Plaintiff’s workforce is stable) are not shown to be false. The fact that Plaintiff sued other former employees does not establish that its allegation of a stable workforce is false.

(b) Ambiguity

DVC contends that paragraph 18 (“above descriptions” are proprietary and confidential information) is vague and ambiguous. This is not a ground for striking a pleading or part thereof.

(c) Earlier Admission

Paragraphs 19-22 do not contradict Plaintiff’s prior allegations.

(d) Irrelevant

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. Code Civ. Proc. § 431.10(b).

DVC does not contend that the facts alleged in paragraphs 22 and 34 are irrelevant, but that the descriptive labels Plaintiff would put on them are. A plaintiff should be permitted a certain degree of license in setting forth the narrative underlying its claims. The motion to strike is denied as to paragraphs 22, 26, and 34.

(e) Improper

DVC’s disagreement with Plaintiff’s choice of descriptive words in paragraph 24 and 29 is not sufficient basis for striking those words.

Along the same lines, DVC’s contention that in paragraph 40 Plaintiff has not adequately alleged the scope of the injunction it prays for is not grounds to strike the allegation or prayer. This would grounds for the court to deny Plaintiff an insufficiently tailored injunction. Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 534. Similarly, DVC’s arguments about the arguably improper basis for an injunction that might be sought by Plaintiff are grounds for denial of an injunction – when and if it is sought – rather than striking the allegation or prayer.

Finally, in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, the California Supreme Court ruled that restitution is a remedy for violation of section 17200 but “nonrestitutionary disgorgement,” which is akin to damages, is not. Id., 29 Cal. 4th at 1144-51. The question is whether Plaintiff’s allegation so clearly refers to nonrestitutionary disgorgement rather than restitution that it should be struck.

The court finds that it is not.

Responding Party shall give Notice.