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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Drew C. Takaichi, Presiding Farris Bryant, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone 408.882-2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: February 18, 2021 TIME: 9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER OR AS OTHERWISE
STATED BELOW
(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY
COUNSEL AND SUBMITTED PER 3.1312(C))
EFFECTIVE JULY 24, 2017, THE COURT NO LONGER PROVIDES OFFICIAL
COURT REPORTERS FOR CIVIL LAW AND MOTION HEARINGS.
SEE COURT WEBSITE FOR POLICY AND FORMS.
TROUBLESHOOTING TENTATIVE RULINGS
If do not see this week’s tentative rulings, they have either not yet been posted or
your web browser cache (temporary internet files) is accessing a prior week’s rulings.
“REFRESH” or “QUIT” your browser and reopen it, or adjust your internet settings to
see only the current version of the web page. Your browser will otherwise access old
information from old cookies even after the current week’s rulings have been posted.
LINE # CASE # CASE TITLE RULING
LINE 1 19CV342014 Vinh Hoang vs Trung Tran et
al
Click Line 1 for tentative ruling.
LINE 2 19CV345846 Venkat Konda vs Dejan
Markovic, PhD et al
Click Line 2 for tentative ruling.
LINE 3 17CV310864 QTV Enterprise, LLC vs Hieu
Nguyen
Motion of plaintiff and cross-defendant QTV
Enterprise for order to deem requests for admission,
set two, deemed admitted is GRANTED. Monetary
sanctions of $1,035 are assessed against defendant,
cross-complainant and cross-defendant Hieu Nguyen
and ordered paid to plaintiff and cross-defendant.
LINE 4 17CV310864 QTV Enterprise, LLC vs Hieu
Nguyen
Motion of cross-defendant Quong Luong for order to
deem requests for admission, set two, deemed
admitted is GRANTED. Monetary sanctions of
$1,035 are assessed against defendant, cross-
complainant and cross-defendant Hieu Nguyen and
ordered paid to cross-defendant.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Drew C. Takaichi, Presiding Farris Bryant, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone 408.882-2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 5 17CV310864 QTV Enterprise, LLC vs Hieu
Nguyen
Motion of cross-defendant Little Saigon Plaza
Sacramento for order to deem requests for admission,
set two, deemed admitted is GRANTED. Monetary
sanctions of $1,035 are assessed against defendant,
cross-complainant and cross-defendant Hieu Nguyen
and ordered paid to cross-defendant.
LINE 6 19CV354235 Orchard Yield Fund I, LP vs
Double L. Ranches, LLC et al
No appearance required.
Hearing continued to 05.27.21 9 AM Dept. 2.
IDC held 02.08.21
LINE 7 19CV355992 Philomena Agbontaen vs
Susan Jackson
Per counsel for moving party, motion to compel is
off calendar and vacated.
LINE 8 19CV358488 Mallory Harcourt et al vs
Tesla, Inc.
IDC held 01.08.21
Parties conducting further meet and confer.
Lines 8 and 9 consolidated for hearing and continued
to 03.04.2021 9 AM Dept. 2.
LINE 9 19CV358488 Mallory Harcourt et al vs
Tesla, Inc.
See Line 8 above.
LINE 10 19cv361043 Kissinger vs Kissinger Click on Line 10 for tentative ruling.
LINE 11 19CV354420 Tracey McCarroll vs Bank of
America, N.A. et al
Motion to vacate dismissal without prejudice and to
enter judgment of dismissal with prejudice in favor
of defendant Carrington Mortgage Services, LLC is
GRANTED. No opposition filed.
LINE 12 19CV355698 Syed Zaman vs Keshav Baral
et al
Motion to consolidate uninsured motorist claim
#1002-32-5978 with case no. 19CV355698, for all
purposes, is GRANTED. No opposition filed.
LINE 13 20CV372700 John Doe vs Defendant Doe 1,
School District
Motion to seal is GRANTED.
LINE 14 2010-1-CV-
184455
Portfolio Recovery Associates,
LLC Vs M. Blakenship
Motion to vacate judgment is GRANTED, and case
will be dismissed. No opposition filed.
LINE 15 19CV349629 Cavalry SPV I LLC vs Amparo
Molden
Hearing required. Defendant shall provide proof that
funds in account are exempt by proof of direct
deposit of public benefit payments and/or social
security payments.
LINE 16
LINE 17
LINE 18
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Drew C. Takaichi, Presiding Farris Bryant, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone 408.882-2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 19
LINE 20
LINE 21
LINE 22
LINE 23
LINE 24
LINE 25
LINE 26
LINE 27
LINE 28
LINE 29
LINE 30
Calendar line 1
Case Name: Hoang v. Tran, et al.
Case No.: 19CV342014
According to the allegations of the fourth amended complaint (“4AC”), in 2016, defendant
Trung Nhat Tran (“Trung”) approached plaintiff Vinh Q. Hoang (“Plaintiff”) with an offer to
invest in real estate; later that year, Trung and defendant Nam Nhat Tran (“Nam”) offered to
find Plaintiff profitable real estate for investment, making oral promises to find profitable
investment properties for Plaintiff. (See 4AC, ¶¶ 35-37.) Trung and Nam promised that they
would use their proficiency in real estate transactions and accumulated wealth to find profitable
investment properties for Plaintiff, they would act as Plaintiff’s agent in the sale and purchase
transactions, and they would form defendant Evergreen Equity Partners, LLC (“Evergreen”)
for Plaintiff’s benefit. (See 4AC, ¶¶ 37, 50-58.) Trung encouraged Plaintiff to take a mortgage
out on his residence and rental properties to invest in the proposed real estate, and in reliance
on Trung and Nam’s representations, beginning in March 2017, Plaintiff transferred his life
savings and personal funds into Evergreen and to third parties sellers by way of escrow. (See
4AC, ¶¶ 38-40, 43.) Trung and Nam induced Plaintiff to add defendant Thoa Thi Kim Nguyen
(“Thoa”) as a signatory to Evergreen’s bank account to facilitate real estate transactions. (See
4AC, ¶¶ 41-42.)
In March 2017, after being asked by Trung to wire money from his personal account to the
seller for property located at 845 Boulder Drive in San Jose, Plaintiff noticed and objected to
the fact that Trung and Thoa’s names also appeared on the wire transfer request as “buyers,”
even though the funds were Plaintiff’s. (See 4AC, ¶ 65.) Trung presented Plaintiff a
handwritten note and assured that the investment funds were safe with Trung, with the
handwritten note as proof that the funds for Boulder belonged to Plaintiff. (See 4AC, ¶ 65.) A
grant deed was recorded for the Boulder property on March 3, 2017, listing Thoa as having a
20% interest, and Plaintiff and Trung as each having a 40% interest. (See 4AC, ¶ 66, exh. B.)
Unbeknownst to Plaintiff, on December 18, 2018, Thoa transferred the Boulder property and
signed the grant deed to defendants Kimly Huynh (“Kimly”) and Andrew Loung (“Loung”).
(See 4AC, ¶ 67.) Thoa transferred legal title of Boulder to herself and signed the deed of trust,
concealing her involvement in the transfer of Plaintiff’s ownership rights in the Boulder
property. (See 4AC, ¶ 67.) Trung later visited Plaintiff on December 21, 2018 to convince
him to sign a document entitled “Confirmation of Conveyance”; however, Plaintiff refused to
sign the document and now seeks a declaration to declare the sales transaction void and to
cancel documents related thereto. (See 4AC, ¶¶ 68-69.)
On July 7, 2017, Plaintiff purchased property known as 3543 Madrid Dr. in San Jose, with title
held in Evergreen’s name. (See 4AC, ¶ 73.) On September 12, 2017, a grant deed was
recorded wherein Evergreen transferred the Madrid property to Yu Pin Chang and Breda Shih
Jung Tai. (See 4AC, ¶ 73, exh. F.)
On May 30, 2017, Plaintiff purchased a property at 14410 Blossom Hill Rd. in Los Gatos, in
his name. (See 4AC, ¶ 74.) On June 30, 2017, a deed of trust was recorded wherein Plaintiff
was listed as the borrower of $700,000; however, Nam falsely notarized this document. (See
4AC, ¶ 74, 80.) On October 11, 2017, a grant deed was recorded transferring the Blossom Hill
property to defendants An Nguyen and To Tran; however, this document was likewise forged
and Plaintiff never received any consideration for this transfer and Plaintiff seeks a declaration
rescinding the sale as void and to cancel related documents thereto. (See 4AC, ¶¶ 74-75.)
In September 2017, Plaintiff bought property at 5680 San Felipe Rd. in San Jose; however,
unbeknownst to Plaintiff, the property was purchased in the name of Plaintiff and Trung, and
on December 14, 2017, the property was transferred to defendants Phan and Trung, and Nam
falsely notarized the transaction. (See 4AC, ¶¶ 78-80.) Plaintiff seeks to cancel the related
documents, to declare that Evergreen holds title as a trustee, and that a constructive trust and/or
resulting trust be imposed. (See 4AC, ¶ 79.)
In December 2017, Evergreen purchased property at 105 Austin Ct. in San Jose, and on
December 27, 2018, Evergreen transferred the Austin property to defendant Bach Lan Thi Le
(“Bach”) without disclosure or consideration to Plaintiff despite Plaintiff contributing the
funds. (See 4AC, ¶ 76.) Plaintiff seeks a declaration that the sale is void and to cancel related
documents thereto. (See 4AC, ¶ 77.) Also in December 2017, property at 11140 Chula Vista
Dr. in San Jose was purchased using Plaintiff’s funds from the sales proceeds of Plaintiff’s
properties, in the name of Evergreen; Plaintiff seeks an order cancelling documents related to
the sale, an order declaring that Evergreen holds title as a trustee, and that a constructive trust
or resulting trust should be imposed and for an order that Evergreen convey title to Plaintiff.
(See 4AC, ¶¶ 78-79.)
In January 2018, Trung and Nam formed Von Pauli Investment, LLC (“VPI”), again
purportedly for Plaintiff’s benefit, and again induced Plaintiff to add Thoa as a signatory for
Von Pauli’s bank account to facilitate real estate transactions. (See 4AC, ¶¶ 45-46, 59-63.)
Trung and Nam transferred and withdrew funds from Von Pauli and did not provide any
accounting or return. (See 4AC, ¶¶ 46-48, 64.)
On October 19, 2020, Plaintiff filed the 4AC against defendants Trung, Thoa, Nam, Katelyn
Phan (“Phan”), Evergreen, Tam Ngoc Nguyen (“Tam”), PHP Group, Inc. (“PHP”), Loung,
Kimly, Bach, An Nguyen, To Tran, Monroe Acceptance Company, Inc. (“Monroe”), First
American Title Insurance Company (“FATIC”), Compass Bank, asserting causes of action for:
1) Fraud, promissory fraud, concealment (against Trung, Nam, Thoa, Tam, Evergreen and
PHP);
2) Breach of fiduciary duty (against Trung, Nam, Thoa, Tam, PHP, and Evergreen);
3) Constructive fraud (against Trung, Nam, Thoa, Tam, Evergreen and PHP);
4) Constructive fraudulent transfer (against Trung, Nam, Thoa, Tam, Evergreen and PHP);
5) Constructive Trust (against Trung, Phan, Nam, Evergreen, Bach, Loung, Kimly, An
Nguyen and To Tran);
6) Resulting Trust (against Trung, Phan, Nam, Evergreen, Bach, Loung, and Kimly);
7) Conspiracy to defraud (against Trung, Nam, Thoa, Phan, Tam, Evergreen and PHP);
8) Breach of contract (against Trung and Nam);
9) Breach of the covenant of good faith and fair dealing (against Trung, Nam, Tam, PHP
and Evergreen);
10) Slander of title (against Trung, Nam, Tam, Thoa, Phan, Evergreen and PHP);
11) Conversion (against Trung, Nam, Thoa, Tam and Evergreen);
12) Accounting (against Trung, Nam, Thoa, Tam, Evergreen and PHP);
13) Common counts (against Trung, Nam, Tam, Thoa, Phan, Evergreen and PHP);
14) Cancellation (against Trung, Nam, Phan, Thoa, Evergreen, Bach, Kimly, Loung, To
Tran, Monroe, FATIC and Compass Bank);
15) Rescission (against Trung, To Tran and An Nguyen);
16) Preliminary and permanent injunction (against all defendants); and,
17) Declaratory relief (against all defendants).
Defendant Thoa demurs to the first through fourth causes of action and defendants Thoa and
Phan demur to the seventh cause of action of the 4AC.
I. DEMURRER TO THE FOURTH AMENDED COMPLAINT
First cause of action for fraud, promissory fraud and concealment
Thoa demurs to the first cause of action for fraud, promissory fraud and concealment, arguing
that the 4AC is “devoid of any factual allegations showing how, when, where, to whom and by
what means any misrepresentations were made to Plaintiff.” (Defs.’ memorandum of points
and authorities in support of demurrer (“Defs.’ memo”), p.6:6-20.) Thoa also argues that the
4AC fails to allege facts demonstrating that Thoa was under any duty to disclose anything to
Plaintiff as they had no relationship between them.
As Thoa argues, “fraud actions are subject to strict requirements of particularity in pleading.”
(Furia v. Helm (2003) 111 Cal.App.4th 945, 956; see also Nagy v. Nagy (1989) 210
Cal.App.3d 1262, 1268 (stating same); see also Small v. Fritz Companies, Inc. (2003) 30
Cal.4th 167, 184 (stating that “[i]n California, fraud must be pled specifically; general and
conclusory allegations do not suffice”).) The specificity requirement has two purposes: to
apprise the defendant of certain definite accusations against him so that he can intelligently
respond to them, and also to weed out nonmeritorious actions on the basis of the pleadings.
(See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821,
838.) “This particularity requirement necessitates pleading facts which ‘show how, when,
where, to whom, and by what means the representations were tendered.’” (Lazar v. Super. Ct.
(Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645; see also Tenet Healthsystem Desert, supra,
245 Cal.App.4th at p.838 (stating same).)
Here, the 4AC alleges that on or about December 10, 2018, Thoa transferred the Boulder
property and signed the grant deed to Kimly and Loung, knowing that Plaintiff had property
rights in Boulder, and received benefits from the transfer, while depriving Plaintiff of the
benefits of the transaction, concealing the transaction from Plaintiff with the intent of
misappropriating his funds and ownership rights in the Boulder property. (See 4AC, ¶ 67.)
While Thoa does not make any argument with regards to the specificity of this allegation, these
facts adequately allege facts supporting a cause of action for concealment.
As to Thoa’s argument regarding a duty to disclose, the 4AC alleges that Thoa knowingly
misappropriated Thoa’s funds and ownership rights in the Boulder property, and put her name
on the grant deed along with Plaintiff and Trung. Here, contrary to Thoa’s argument, the grant
deed does appear to indicate a relationship—Plaintiff and Thoa were co-owners of the Boulder
property. The FAC alleges that Thoa and the other parties to the transaction: had knowledge of
material facts regarding plaintiff’s ownership of the property that were not known to him or
reasonably discoverable by him; actively concealed the misappropriation of his funds;
transferred his interest in the property without his knowledge or consent; and, deprived
Plaintiff of any benefits of the transaction. These allegations support a duty to disclose. (See
Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831
(stating that “circumstances in which nondisclosure or concealment may constitute actionable
fraud [include]: … when the defendant had exclusive knowledge of material facts not known to
the plaintiff; [and] when the defendant actively conceals a material fact from the plaintiff”); see
also Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171, 187 (stating that “[t]here is a duty
of disclosure, inter alia, ‘when one party to a transaction has sole knowledge or access to
material facts and knows that such facts are not known or reasonably discoverable by the other
party’”).)
Lastly, Thoa asserts that Plaintiff’s investigation and discovery responses demonstrate that
Thoa is not a party with whom Plaintiff had any relationship. However, on demurrer, Thoa has
not even presented any documents supporting such an assertion. Regardless, “[o]n a
demurrer[,] a court’s function is limited to testing the legal sufficiency of the complaint.”
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 (also
stating that “[t]he hearing on demurrer may not be turned into a contested evidentiary
hearing”); see also Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200
(stating that on “demurrer we accept as true all factual allegations properly pleaded in the
complaint”).)
Thoa’s demurrer to the first cause of action is OVERRULED.
Second cause of action for breach of fiduciary duty and third cause of action for constructive
fraud
Thoa demurs to the second cause of action, asserting that the 4AC fails to allege any fiduciary
duty owed to Plaintiff. Thoa also demurs to the third cause of action for constructive fraud
arguing that the 4AC fails to allege any duty owed by Thoa to Plaintiff, including a fiduciary
duty.
The second cause of action alleges that “THOA owed a fiduciary duty to PLAINTIFF as a
party to a partnership agreement with TRUNG to appear and be introduced as PLAINTIFF’S
agent” so as to perform certain duties for the benefit of Plaintiff. (4AC, ¶¶ 134-136.) Here,
Thoa does not owe any fiduciary duty to Plaintiff as a party to a partnership agreement with
Trung. However, the 4AC also alleges that Thoa was introduced as Plaintiff’s agent to perform
duties for Plaintiff’s benefit and made representations as such. (See 4AC, ¶¶ 41-43, 45-46, 48-
52, 55-63, 67, 134-136.)
“Fiduciary duties arise as a matter of law ‘in certain technical, legal relationships’” including
relationships between a principal and agent, and can also arise as a matter of agreement where
the party “knowingly undertake[s] to act on behalf of and for the benefit of another….”
(Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631-632; see also
Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 410-411 (stating that “[a]gency is the
fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another
person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the
principal's control, and the agent manifests assent or otherwise consents so to act… [w]here
such a relationship arises, the agent assumes ‘a fiduciary duty to act loyally for the principal’s
benefit in all matters connected with the agency relationship’”).) The 4AC thus alleges that
Thoa both agreed to act on behalf of and for the benefit of Plaintiff, and also assented to be
Plaintiff’s agent. These allegations—while disputable by Thoa—are sufficient on demurrer to
establish the existence of a fiduciary duty. Again, “[o]n a demurrer[,] a court’s function is
limited to testing the legal sufficiency of the complaint.” (Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 113 (also stating that “[t]he hearing on demurrer
may not be turned into a contested evidentiary hearing”); see also Gu v. BMW of North
America, LLC (2005) 132 Cal.App.4th 195, 200 (stating that on “demurrer we accept as true all
factual allegations properly pleaded in the complaint”).)
Thoa’s demurrer to the second and third causes of action is OVERRULED.
Fourth cause of action for fraudulent transfer
Thoa demurs to the fourth cause of action for fraudulent transfer arguing that the 4AC fails to
allege fraud with sufficient specificity. For reasons stated above in the discussion regarding
the first cause of action, Thoa’s demurrer to the fourth cause of action is OVERRULED.
Seventh cause of action for conspiracy
Thoa and Phan demur to the seventh cause of action for civil conspiracy, arguing that the 4AC
“is devoid of any factual allegations alleging that Thoa Nguyen and/or Katelyn Phan
committed any tort and/or fraud as discussed in detail above.” (Defs.’ memo, p.8:16-27.) The
4AC alleges that Thoa misappropriated Plaintiff’s funds and property interest in the Boulder
property, concealing that information from Plaintiff. (See 4AC, ¶¶ 42, 46, 48-52, 55-63, 67,
84-85, 180-186.) The 4AC also alleges that Phan, Trung’s wife and employee and agent of
PHP, conspired to deprive Plaintiff of his funds and property interest in the San Felipe property
by transferring the property to herself by forging Plaintiff’s signature on the grant deed. (See
4AC, ¶¶ 4, 20, 23-30, 71-72, 81-83, 86, 180-186.) These allegations are sufficient to support
the commission of tort by Thoa and Phan. Accordingly, Thoa and Phan’s demurrer to the
seventh cause of action is OVERRULED.
The Court will prepare the Order.
Calendar line 2
Case Name: Konda v. Markovic, et al.
Case No.: 19CV345846
According to the allegations of the third amended complaint (“TAC”), in January 2009,
plaintiff Venkat Konda (“Plaintiff”) was introduced to defendant Dejan Markovic
(“Markovic”), a professor at UCLA with a focus of circuits and embedded systems. (See TAC,
¶ 50.) When an oral offer to fund Plaintiff’s company, Konda Tech, was rescinded, Markovic
contacted Plaintiff to inform him that Konda Tech could receive funding through UCLA’s
Institute for Technology Advancement (“ITA”) and suggested that Plaintiff present to ITA.
(Id.) On October 7, 2009, Plaintiff provided Konda Tech’s business presentation to Markovic
and ITA in confidence. (Id.) On October 12, 2009, just prior to presenting to ITA, Markovic,
for the first time, indicated that Plaintiff should not expect ITA to fund Konda Tech because
ITA does not fund technologies built outside UCLA. (Id.) ITA rejected funding Konda Tech
because it was built outside UCLA and had nothing to do with UCLA or Markovic. (See TAC,
¶ 51.) Markovic also asked Plaintiff to give a seminar on Konda Tech’s intellectual property
(“IP”) to Markovic’s students, including defendant Cheng C. Wang (“Wang”). (See TAC, ¶
52.) At the seminar, Plaintiff only presented non-confidential material to the students as all
materials presented were published in Konda Tech patent applications. (See TAC, ¶ 53.)
For four years, Markovic pressed Plaintiff for proprietary implementation details of the IP,
technical know-how, and business knowledge, as well as Konda Tech’s customers and
potential customers, subject to confidentiality. (See TAC, ¶ 54.) In June and July 2010,
Markovic called Plaintiff seeking permission to use Konda Tech IP in two applications for
DARPA funding and assuring Plaintiff that he would secure a license from Konda Tech should
a DARPA grant be approved for a DARPA project. (See TAC, ¶ 55.) The applications were
rejected. (See TAC, ¶ 59.) However, Markovic had disclosed proprietary information
regarding Konda Tech to Wang, and, in 2010, Markovic told Plaintiff that his students,
including Wang, were implementing Konda Tech IP as an academic project. (See TAC, ¶¶ 55,
59.) Plaintiff told Markovic that he should cease work as Markovic and his students did not
have a right to implement any such IP absent a license of the IP. (See TAC, ¶ 59.) Instead,
two months after the DARPA proposals were rejected, Markovic and Wang formed Hierlogix
to commercialize the Konda Tech IP without Konda Tech’s permission or knowledge. (See
TAC, ¶¶ 60, 68.)
In June 2011, unbeknownst to Plaintiff, Markovic and Wang presented a paper at the 2011
VLSI Circuits Symposium on the Konda Tech IP and disclosing trade secrets of Konda Tech
that were previously disclosed to Markovic in confidence. (See TAC, ¶ 65.) In April 2013,
Markovic invited Plaintiff to meet him at Stanford University while Markovic was a visiting
professor, and Markovic represented that he and his students had ceased implementing Konda
Tech IP. (See TAC, ¶ 69.) After Markovic made this misrepresentation, Markovic also asked
for the customers that Plaintiff was working with to license Konda Tech IP, and Plaintiff,
unaware of Markovic’s and Wang’s work, disclosed the customers in confidence. (Id.)
Plaintiff met with Markovic and Wang on January 28, 2014 where Markovic again
misrepresented the area of their startup, concealing from Plaintiff that Hierlogix was using
Konda Tech IP, that Markovic and Wang had presented the 2011 VLSI paper, that Wang had a
dissertation on FPGA interconnects, the Konda Tech IP, and that Markovic and Wang were
building a FPGA company, Hierlogix. (See TAC, ¶¶ 72-73.) A couple of weeks later,
Markovic and Wang published a paper at the 2014 International Solid State Circuits
Conference (“ISSCC”), again based on Konda Tech IP. (See TAC, ¶ 74.) On February 18,
2014, and again on March 5, 2014, Plaintiff, Markovic and Wang met with the co-founder and
CEO of Memoir Technologies, Inc., Dr, Sundar Iyer, where Markovic and Wang again
concealed the facts that: they and Hierlogix and their new startup Flex Logix were building
products based on Konda Tech IP; they had presented the 2011 VLSI paper based on Konda
Tech IP; Wang had a dissertation on work using Konda Tech IP; the 2014 USCC paper; and,
Markovic and Wang were associated in any way with those companies. (See TAC, ¶¶ 77-85.)
On December 18, 2015, Plaintiff met with Professor Vaughn Betz of the University of
Toronto’s Department of Electrical and Computer Engineering to discuss certain results that
Plaintiff achieved with one of the tools that utilized Konda Tech IP, and Dr. Betz asked
Plaintiff whether Flex Logix was implementing Konda Tech IP. (See TAC, ¶¶ 86-87.)
Plaintiff then investigated Flex Logix and, on January 7, 2016, Plaintiff met with Dr. Bonomi
and only then found out that Markovic and Wang had founded Flex Logix to manufacture
eFPGAs based on Konda Tech IP, including Konda Tech trade secrets that Plaintiff had
disclosed to Markovic in confidence. (See TAC, ¶¶ 88-97.)
After consulting with an attorney and exhausting a search for additional facts, on March 27,
2016, Plaintiff sent an email to Flex Logix executives and UCLA administrators regarding Flex
Logix’ infringement on the Konda Tech patents. (See TAC, ¶ 98.) Flex Logix’ CEO, Geoff
Tate, and the UCLA Dean of Engineering and Applied Science, Dr. Jayathi Murthy, responded
that they would get back to Plaintiff in a week. (See TAC, ¶ 99.) On June 25, 2016, Plaintiff
discovered the 2011 VLSI paper that plagiarized the disclosures in Konda Tech patents and
discloses implementation details derived from the unauthorized use of Konda Tech trade
secrets. (See TAC, ¶ 101.) From August 2016 to April 2017, Flex Logix and Plaintiff had
settlement negotiations; however no resolutions were achieved. (See TAC, ¶ 105.) Instead,
Tate, on multiple occasions, threatened Plaintiff that if he sued Flex Logix, Plaintiff’s career
would be over. (See TAC, ¶¶ 106-107.) Flex Logix resumed settlement discussions from
March 21, 2018 to May 20, 2018, and on October 24, 2018 and November 30, 2018 to
December 17, 2018, but those efforts were also unsuccessful. (See TAC, ¶¶ 109, 113, 125.)
Consistent with Tate’s threats, Tate then began harassing Konda Tech’s customers at the 2019
Design Automation Conference in Las Vegas. (See TAC, ¶ 128.) From September 25, 2019 to
October 1, 2019, Plaintiff engaged in a long meet and confer with defendants Steven M. Perry
(“Perry”) and Gregory P. Stone (“Stone”) of Munger, Tolles & Olson LLP (“MTO”) regarding
discovery, in which Plaintiff was told that he was required to identify his trade secrets with
particularity or that discovery would not be able to proceed. (See TAC, ¶¶ 129, 181.) Plaintiff
sent his confidential list of trade secrets as a 5 page document, marking it as “confidential” and
demanded that Markovic and Wang respond to his discovery requests now that Plaintiff’s trade
secrets were identified with reasonable particularity. (Id.)
On October 21, 2019, Perry filed a motion for protective order and a supporting declaration
which unnecessarily included a confidential list of Konda Tech’s trade secrets. (See TAC, ¶¶
130-131, 182-183.) In support of his opposition to the motion for protective order, Plaintiff
submitted a declaration by a professor at UC Davis who stated that the confidential trade secret
list was listed with adequate particularity. (See TAC, ¶¶ 133, 185.) Plaintiff informed UCLA
that a professor at UC Davis had been assisting him in support of his assertions regarding the
misappropriation of the Konda IP by Markovic and Wang. (Id.) Perry requested permission to
provide the declaration of the professor to his clients and Tate; Plaintiff did not grant such
permission. (See TAC, ¶¶ 134, 186.) Nevertheless, on January 15, 2020, the professor phoned
Plaintiff and stated that he had been threatened by some UC persons and requested to withdraw
his declaration, or else his career would be in jeopardy. (See TAC, ¶¶ 135, 187.)
Plaintiff asserts that defendants Tate, Lamond, Hebert, Perry, Stone, Dyk, Gherini, Swerdlow
and Dr. Lackman acted in concert with the board members of Flex Logix—including defendant
Wang and Dr. Lackman—and threatened and intimidated the professor at UC Davis through
agents of the UC Regents. (See TAC, ¶¶ 139-142, 145, 191, 197.) Ultimately, Plaintiff filed
an ex parte application for hearing on January 22, 2020 to withdraw the professor’s
declaration. (See TAC, ¶ 143, 195.)
On November 7, 2019, Plaintiff filed the FAC against defendants Markovic, Wang, Flex
Logix, The Regents of the University of California (“UC Regents”) and MTO, asserting causes
of action for:
1) Unfair business practices;
2) Fraud—intentional misrepresentation;
3) Fraud—concealment;
4) Misappropriations of trade secrets; and,
5) Conspiracy.
On March 9, 2020, the Court [Hon. Folan] sustained Markovic and Wang’s demurrer to each
of the causes of action, and sustained Flex Logix’ demurrer to the first and fifth causes of
action with 25 days’ leave to amend. On March 10, 2020, the Court [Hon. Folan] sustained
UC Regents’ demurrer to the fifth cause of action with 23 days’ leave to amend. On June 2,
2020, the Court [Hon. Folan] granted MTO’s special motion to strike the fourth cause of action
of the FAC and denied Plaintiff’s request for leave to file a second amended complaint.
On July 1, 2020, Plaintiff filed the SAC against Markovic Wang, Flex Logix, UC Regents,
MTO, Geoffrey Tate (“Tate”), Pierre Lamond (“Lamond”), Peter Hebert (“Hebert”), Perry,
Stone, MTO attorney Abraham B. Dyk (“Dyk”), John Garland Gherini (“Gherini”), Robert
Michael Swerdlow (“Swerdlow”), and Leslie M. Lackman (“Lackman”), asserting causes of
action for:
1) Unfair business practices (against Markovic, Wang, Flex Logix and Lackman);
2) Fraud—intentional misrepresentation (against Markovic and Wang);
3) Fraud—concealment (against Markovic and Wang);
4) Misappropriation of trade secrets (against Markovic, Wang and MTO);
5) Unfair competition—passing off (against Markovic, Wang and Flex Logix);
6) Conversion (against Markovic and Wang);
7) Abuse of process (against Markovic, Wang, Flex Logix, MTO, Tate, Lamond, Hebert,
Perry, Stone, Dyk, Gherini, Swerdlow and Lackman); and,
8) Ongoing conspiracy (against Flex Logix, UC Regents, MTO, Tate, Lamond, Hebert,
Perry, Stone, Dyk, Gherini, Swerdlow and Lackman).
On September 2, 2020, the Court [Hon. Rudy] granted MTO’s special motion to strike the
fourth, seventh and eighth causes of action against it, denied Plaintiff’s request for leave to file
a third amended complaint as to MTO, sustained Wang and Markovic’s demurrer to the first
through sixth causes of action without leave to amend and sustained Wang and Markovic’s
demurrer to the seventh cause of action for abuse of process with 20 days’ leave to amend, and
granted UC Regents’ motion to dismiss claims against them with 20 days’ leave to file a TAC.
On September 28, 2020, Plaintiff filed the TAC, asserting causes of action for:
1) Unfair business practices (against Flex Logix, Tate, UC Regents and Dr, Lackman);
2) Unfair competition—passing off (against Flex Logix);
3) Abuse of process (Markovic, Wang, Flex Logix, Lamond, Tate, Hebert, Perry, Stone,
Dyk, UC Regents, Gherini, Swerdlow and Lackman); and,
4) Ongoing conspiracy (against Flex Logix, UC Regents, Markovic, Wang, Tate, Lamond,
Hebert, Perry, Stone, Dyk, Gherini, Swerdlow and Lackman).
UC Regents, Gherini and Swerdlow specially move to strike the third and fourth causes of
action of the TAC as against Gherini and Swerdlow pursuant to Code of Civil Procedure
section 425.16.
I. UC REGENTS, GHERINI AND SWERDLOW’S SPECIAL MOTION TO STRIKE
THE THIRD AND FOURTH CAUSES OF ACTION OF THE TAC AS AGAINST GHERINI
AND SWERDLOW PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, the California
Supreme Court established the trial court’s duty in ruling on an anti-SLAPP motion to strike:
Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. 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,’ as defined in the statute. [Citation.] If the court finds [that
defendant has made its threshold showing], it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision
(b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense is based.’
(Id. at 67.)
“A defendant’s burden on the first prong is not an onerous one.” (Optional Capital, Inc. v.
Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112.) “A defendant need
only make a prima facie showing that plaintiff’s claims arise from the defendant’s
constitutionally protected free speech or petition rights.” (Id.) “[U]nder the statutory scheme,
a court must generally presume the validity of the claimed constitutional right in the first step
of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step
of the analysis, if necessary.” (Id.) “Otherwise, the second step would become superfluous in
almost every case, resulting in an improper shifting of the burdens.” (Id.)
“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only
have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal.
4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106,
1123.) “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.’” (Id. at 88-89, quoting Wilson
v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the
statute.” (Id. at 89.) “In deciding the question of potential merit, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd.
(b)(2)); though the court does not weigh the credibility or comparative probative strength of
competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence
supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the
claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
UC Regents, Gherini and Swerdlow make a threshold showing that the TAC arises from
protected activity
The third and fourth causes of action of the TAC as against Gherini and Swerdlow are
premised on the allegation that they “acted in concert either directly or indirectly through other
persons to engage in witness intimidation and tampering by threatening Prof. at UC Davis to
demand that he withdraw his declaration and changing his sworn testimony.” (TAC, ¶¶ 197;
see also TAC, ¶¶ 145, 200-206, 212.) The TAC alleges that Plaintiff withdrew the UC Davis
professor’s declaration and, on February 4, 2020, filed the declaration of Professor Vipin
Chaudhary that stated that Plaintiff’s trade secret list identified his trade secrets with
reasonable particularity. (See TAC, ¶¶ 195-196.)
UC Regents, Gherini and Swerdlow (collectively, “moving defendants”) assert that the subject
communications to the UC Davis professor were in connection with litigation, performed in the
scope of their duties as counsel for defendant UC Regents, and thus are “communicative acts
performed by attorneys as part of their representation of a client in a judicial proceeding or
other petitioning context” and thus “are per se protected as petitioning activity by the anti-
SLAPP statute.” (See Defs.’ memorandum of points and authorities in support of special
motion to strike the TAC pursuant to Code Civ. Proc. § 425.16 (“Defs.’ memo”), pp.4:22-25,
5:1-14, 6:7-28, 7:1-28, 8:1-8, citing Finton Construction, Inc. v. Bidna & Keys, APLC (2015)
238 Cal.App.4th 200, 210 (stating that “[u]nder the plain language of section 425.16,
subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all
communicative acts performed by attorneys as part of their representation of a client in a
judicial proceeding or other petitioning context are per se protected as petitioning activity by
the anti-SLAPP statute”); see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908
(stating that several decisions “have adopted a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16”), and Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1056 (stating that “filing, funding and prosecution of an action” constitutes
“communicative conduct” subject to the section 425.16); see also Kolar v. Donahue, McIntosh
& Hammerton (2006) 145 Cal.App.4th 1532, 1537 (stating that “[t]he anti-SLAPP protection
for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that
relates to such litigation, including statements made in connection with or in preparation of
litigation… [i]ndeed, courts have adopted ‘a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16’”); see also Panakosta, Partners,
LP v. Hammer Lane Management, LLC (2011) 199 Cal.App.4th 612, 635 (stating that “[t]he
right of petition encompasses the filing of a legal action and the requesting of an injunction”);
see also Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 (stating that the filing of a lis
pendens and a notice of rescission “are squarely covered by section 425.16”).)
In support of their motion, moving defendants present the declaration of Gherini, who states
that: even though Plaintiff knew UC Regents’ counsel, and knew the university and its
campuses were represented by counsel, and was a party, Plaintiff reached out to a UC Davis
faculty member without permission and solicited a declaration, and failed to inform that faculty
member that the University was a defendant in the case and, in fact, omitted its name from the
caption so as to disguise that fact; on July 8, 2020, counsel for UC Regents emailed Plaintiff
informing him that inclusion of individual attorneys for the University as defendant made
Plaintiff’s SAC subject to a special motion to strike; on July 9, 2020, counsel for UC Regents
had a phone conversation with Plaintiff to discuss deficiencies with the SAC; on July 10, 2020,
Plaintiff sent an email accusing counsel for UC Regents of witness tampering and calling them
either “disingenuous or incompetent”; counsel for UC Regents responded, rejecting the claim
of witness tampering and informing Plaintiff that he did not appreciate being called
disingenuous or incompetent, and if Plaintiff did not dismiss individual counsel for UC
Regents, they would file a special motion to strike since Plaintiff’s claims arise from their role
in defending the University in the instant litigation; and, counsel for UC Regents attempted to
meet and confer with Plaintiff, but Plaintiff responded that the time to meet and confer had
passed. (See Gherini decl. in support of special motion to strike the TAC, ¶¶ 3-10.) Attached
to the Gherini declaration is the first page of the declaration of the UC Davis professor, in
which the caption omits the University as a defendant.
In opposition, citing Blankenship v. McDonald (9th Cir. 1999) 176 F.3d 1192, Plaintiff argues
that “witness intimidation is not protected speech or otherwise protected by the litigation
privilege.” (Pl.’s opposition to Defs.’ Special motion to strike the TAC (“Opposition”), p.5:4-
12, citing Blankenship, supra, 176 F.3d at p. 1196 and 42 U.S.C. § 1985 (2).) In Blankenship,
supra, the plaintiff was appointed as a court reporter and was subpoenaed to testify in a former
employee’s hearing pursuant to complaint filed under the court’s EEO plan. (See Blankenship,
supra, 176 F.3d at p.1194.) She testified to the conduct of the judge’s in-court clerk, which
included abuse of personnel rules, use of court facilities for private business, excessive
profanity, sexist and racist jokes and comments, and notes passed between the clerk and the
judge about witnesses and attorneys that were disrespectful and rude. (Id.) Immediately
following the hearing, the judge confronted the plaintiff and plaintiff was told by the court
clerk that she would either be transferred, take medical disability, or be terminated for poor
performance; she was eventually terminated. (Id.) Plaintiff then filed a complaint alleging
violation of her first and fifth amendment rights as well a claim under 42 U.S.C. § 1985 (2).
(Id. at pp.1194-1196.) The Blankenship court affirmed the district’s court’s dismissal of the
complaint for failure to state a claim upon which relief could be granted. Here, Plaintiff does
not allege a section 1985 (2) cause of action. (See Covenant Care, Inc. v. Super. Ct. (Inclan)
(2004) 32 Cal.4th 771, 790 (stating that “statutory causes of action must be pleaded with
particularity”).) Moreover, Blankenship did not involve any conduct protected by the litigation
privilege or an abuse of process cause of action. Blankenship does not assist Plaintiff.
Here, the moving defendants demonstrate that the act or acts of which Plaintiff complains were
communications with an employee of its client, in the scope and course of their representation
of UC Regents as counsel for UC Regents, in connection with the instant litigation. Thus, the
moving defendants demonstrate that the acts of which Plaintiff complains were taken “in
furtherance of the defendant’s right of petition,” and thus makes a threshold showing that the
challenged causes of action arise from protected activity. (See Kolar v. Donahue, McIntosh &
Hammerton (2006) 145 Cal.App.4th 1532, 1537 (stating that “[t]he anti-SLAPP protection for
petitioning activities applies not only to the filing of lawsuits, but extends to conduct that
relates to such litigation, including statements made in connection with or in preparation of
litigation… courts have adopted ‘a fairly expansive view of what constitutes litigation-related
activities within the scope of section 425.16’”), quoting Kashian v. Harriman (2002) 98
Cal.App.4th 892, 908; see also Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268
(stating same); see also Coretronic Corp. v. Cozen O'Connor (2011) 192 Cal.App.4th 1381,
1388 (stating “[c]ourts have taken a fairly expansive view of what constitutes litigation-related
activity for purposes of section 425.16… [t]he anti-SLAPP statutes protect not only the
litigants, but also their attorneys’ litigation-related statements”); see also Benasra v. Mitchell
Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1185 (stating that “an attorney who
has been made a defendant in a lawsuit based upon a written or oral statement he or she made
on behalf of clients in a judicial proceeding or in connection with an issue under review by a
court, may have standing to bring a SLAPP motion”), quoting Jespersen v. Zubiate-
Beauchamp (2003) 114 Cal.App.4th 624, 629; see also Optional Capital, Inc. v. Akin Gump
Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113-114 (stating that “courts have
adopted ‘a fairly expansive view of what constitutes litigation-related activities within the
scope of section 425.16… ‘[u]nder the plain language of section 425.16, subdivisions (e)(1)
and (2), as well as the case law interpreting those provisions, all communicative acts performed
by attorneys as part of their representation of a client in a judicial proceeding or other
petitioning context are per se protected as petitioning activity by the anti-SLAPP statute…
[c]ases construing the anti-SLAPP statute hold that ‘a statement is ‘in connection with’
litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the
litigation and is directed to persons having some interest in the litigation’”).) The Court thus
turns to determine whether the plaintiff has demonstrated a probability of prevailing on the
causes of action.
In opposition, Plaintiff fails to demonstrate a probability of prevailing on the third and fourth
causes of action against UC Regents and its counsel Gherini and Swerdlow.
In opposition, Plaintiff argues that the special motion to strike is defective because the moving
defendants did not request judicial notice of the TAC. However, the TAC is the subject
pleading and is necessarily at issue; this is not a defect of the motion.
Plaintiff next argues that he “dispels the notion that ‘there is no evidence either defendant [Mr.
Gherini or Mr. Swerdlow] ‘misused the power of the court’ or had an ‘ulterior motive’ in
misusing the judicial process’… [because] the Declaration of Dr. Konda states that Mr. Gherini
and Mr. Swerdlow were involved in intimidating of the witness.” (Opposition, p.5:20-25,
citing Pl.’s decl., ¶¶ 20-24.) However, paragraphs 20-23 of Plaintiff’s declaration do not
mention Gherini or Swerdlow whatsoever. Paragraph 24 merely states that “[o]n information
and belief, Defendants Markovic, Wang, Flex Logix, Mr. Tate, Mr. Lamond, Mr. Hebert, Mr.
Perry, Mr. Stone, Mr. Dyk, UC Regents, Mr. Gherini, Mr. Swerdlow, and Dr. Lackman
engaged in witness intimidation by threatening the Professor at UC Davis to demand the
withdrawal of his declaration either directly or indirectly through other people with the ulterior
motive to have the Court grant misnamed and untimely ‘Motion for Protective Order’ filed by
Defendants Markovic and Wang. This constitutes abuse of process.” (Pl.’s decl., ¶ 24.) This
evidence, as a matter of law, is inadequate to show a probability of prevailing. (See Evans v.
Unkow (1995) 38 Cal.App.4th 1490, 1497 (stating that “sole assertion on this point in his
opposing declaration was his averment on information and belief… [t]he problem with this
averment is that information and belief, within the context of a special motion to strike a
SLAPP suit, is inadequate to show ‘a probability that the plaintiff will prevail on the claim’”);
see also Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18
Cal.App.5th 95, 118-119 (stating that “[t]o successfully defend against a special motion under
section 425.16, Plaintiff was required to state and substantiate its claims with a prima facie
showing of facts… averments made on information and belief cannot make the showing”); see
also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (stating that “[i]n
opposing an anti-SLAPP motion…declarations may not be based upon ‘information and
belief’”); see also Contreras v. Dowling (2016) 5 Cal.App.5th 394, 405 (stating that “[a]n anti-
SLAPP motion is an evidentiary motion… averments made on information and belief cannot
make the showing”); see also Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1397 (stating
that “[t]his statement on information and belief does not constitute admissible evidence
[citation] and would fall within the hearsay statements excluded by the trial court”).)
Additionally, Plaintiff again cites to Blankenship, supra, and 42 U.S.C. § 1985 (2). However,
Blankenship also noted that “allegations of witness intimidation under § 1985(2) will not
suffice for a cause of action unless it can be shown the litigant was hampered in being able to
present an effective case.” (Blankenship, supra, 176 F.3d at p.1196.) Here, Plaintiff alleges
that he subsequently withdrew the UC Davis professor’s declaration and filed a declaration by
a different professor. (See TAC, ¶¶ 195-196.) Plaintiff neither argues nor demonstrates that he
was hampered in being able to present an effective case. The record reflects that: the motion
for protective order, originally calendared for January 28, 2020, was continued, providing
additional time for Plaintiff to find an additional, substitute declaration; and, Plaintiff, in fact,
submitted a declaration from a different professor that, aside from their curriculum vitae and
personal background, was mostly identical. (See Pl.’s Opposition, p.4:8-12 (stating that “Dr.
Chaudhary, being fully aware of the withdrawal of the Professor at UC Davis’s declaration,
gave a substantially equivalent declaration (as also noted by Judge Folan in her ruling on June
18, 2020)”).) The July 24, 2020 order granting the motion for protective order did not state
that the lack of the UC Davis professor’s declaration or the inclusion of Chaudhary’s
declaration had any bearing on the Court’s decision; instead, the Court [Hon. Folan] explicitly
stated that:
At the hearing, the Court learned that another Special Motion to Strike pursuant to Code of
Civil Procedure Section 425.16 has been filed. The filing of such a motion automatically stays
discovery until the motion is ruled upon, absent a showing of good cause. Britts v. Superior
Court (2006) 145 CA 4th 1112.
The Court notes there are two Motions to Dismiss scheduled for September 1, 2020 and a
Motion to Strike and Demurrer scheduled for October 6, 2020. The Special Motion to Strike
was filed on July 20, 2020 and given a TBD date. The Court advances the hearing on the
Motion to Strike and Demurrer set for October 6, 2020 to September 1, 2020. The hearing on
the Special Motion to Strike will also take place on September 1, 2020.
The Court feels that a brief pause on the subject discovery is appropriate in light of the newly
filed Special Motion to Strike. The Court has advanced the pending hearing dates on the other
matters so that they can be heard and ruled upon at the earliest opportunity. The rulings on the
pending motions will either dispose of the case entirely or not. If the latter, discovery will
proceed and defendants Markovic and Wang must respond to the discovery which is the
subject of this Motion for Protective Order once rulings have been made on the Special Motion
to Strike, Motions to Dismiss, Motion to Strike and Demurrer which will all be heard on
September 1, 2020.
In this regard, the Court grants the Motion for Protective order pursuant to Code of Civil
Procedure 2017.020-030 for a limited time as stated above.
(July 24, 2020 order re: motion for protective order, pp.1:17-28, 2:1-4.)
Thus, it is apparent that, even if Plaintiff had presented admissible evidence in support of the
third and fourth causes of action against Gherini and Swerdlow—which he has not, Plaintiff
additionally fails to demonstrate a probability of prevailing to the extent that these causes of
action could somehow be premised on a violation of 42 U.S.C. § 1985 (2).
Separately, Plaintiff argues that “‘misuse of the judicial process’ by the University Defendants
is evidenced by their repeated anti-SLAPP motions wrongfully interposed to persuade the
Court to stay discovery by Plaintiff under California Code of Civil Procedure § 425.16 (g)
from proceeding under the California Discovery Act to aid and abet the cover up.”
(Opposition, p.6:9-15 (also stating that “The University Defendants and the other defendant
have ‘taken action ‘pursuant to judicial authority’’ in using the ploy of anti-SLAPP motions
and have succeeded with the Court up to the present date to continue to block legitimate
discovery by Plaintiff for more than a year”).) This assertion is not an alleged basis of the third
or fourth causes of action in the TAC, and thus cannot demonstrate any probability of
prevailing on the alleged causes of action as alleged in the TAC. Moreover, Plaintiff fails to
submit any evidence with regards to this previously unstated basis for the third and fourth
causes of action. That various defendants have succeeded in special motions to strike against
Plaintiff suggests that the motions were not a part of a ploy, but had legitimate grounds for
them. Plaintiff fails to demonstrate a probability of prevailing on these causes of action to the
extent that they are premised on this basis.
Plaintiff also does not address whether the alleged communications between UC Regents
counsel and the employee of its client constitute an abuse of process. As argued by moving
defendants, “the essence of the tort [of abuse of process is] … misuse of the power of the court;
it is an act done in the name of the court and under its authority for the purpose of perpetrating
an injustice.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057; see also Drum v. Bleau, Fox &
Associates (2003) 107 Cal.App.4th 1009, 1019 (stating same); see also S.A. v. Maiden (2014)
229 Cal.App.4th 27, 41 (stating same).) Witness intimidation, while wrongful, is not an act
done in the name of the court and under its authority; this Court has never ordered a witness to
be intimidated, indirectly or directly. Thus, as an additional and separate basis, Plaintiff fails to
demonstrate a probability of prevailing on his causes of action against Gherini and Swerdlow.
As Plaintiff fails to demonstrate a probability of prevailing on the third and fourth causes of
action as against Gherini and Swerdlow, the moving defendants’ special motion to strike the
third and fourth causes of action of the TAC as against Gherini and Swerdlow is GRANTED.1
1 There is a demurrer to the TAC by UC Regents, Gherini, Swerdlow and Lackman, scheduled for hearing on
March 9, 2021. As to Gherini and Swerdlow, the demurrer is limited to the third cause of action for abuse of
process, which is also alleged against Dr. Lackman. In light of the Court’s ruling, granting the special motion to
strike, the demurrer as to Gherini and Swerdlow is MOOT.
The Court will prepare the Order.
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Case Name: Kissinger vs Kissinger
Case No.: 19CV361043
On August 4, 2020, the Court granted defendant’s motion to transfer venue to El Dorado
County Superior Court. On the same day, the clerk of court served the order on plaintiff by
mail. Upon nonpayment of court fees and costs for transfer, on September 16, 2020, defendant
served plaintiff with the present motion for dismissal. On December 28, 2020, Plaintiff posted
fees and costs.
Under the facts of this case, Code of Civil Procedure section 399, subdivision (a) directs
plaintiff to pay the fees and costs to transfer the case within 30 days after service of notice of
the transfer order. A failure to pay the fees and costs permits defendant to bring a motion for
dismissal without prejudice.
It is not disputed that plaintiff is obligated by this statute to pay the fees and costs to transfer
the case, and that plaintiff failed to pay the required fees and costs within 30 days of being
served with the notice of the transfer order. Rather, plaintiff asks that the Court exercise its
discretion to not dismiss the case2 because plaintiff has now tendered the fees and costs, there
is no prejudice to defendant, and that Stasz v. Eisenberg3 cited by defendant in support of
dismissal, is factually distinguishable.
The Court has considered that plaintiff’s failure to pay extends well beyond the 30 day
payment period,4 without explanation for the delay. Although plaintiff has now paid the fees
and costs required under Code of Civil Procedure section 399, subdivision (a), this appears to
be the result of defendant having to bring the instant motion. Plaintiff suggests that defendant
is an opportunist in filing the motion shortly after the 30 day expired, and there is no evidence
of a prior demand to plaintiff to pay the fees and costs before bringing a motion. That said,
plaintiff did not timely pay the fees and costs after being served with (a) the motion on
September 16, 2020 and (b) the notice of hearing on November 13, 2020, and offers no
explanation in his opposition.
After consideration of these circumstances, and the matters stated in the pleadings filed in
support and in opposition, the motion to dismiss the complaint without prejudice pursuant to
Code of Civil Procedure section 399, subdivision (a) is GRANTED.
2 Dismissal under Code of Civil Procedure section 399, subdivision (a) is discretionary, not mandatory. 3 Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032 4 Plaintiff posted fees and costs on December 28, 2020, nearly five months after service of the Order.
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