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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
SUNPOWER CORPORATION vs MARTIN DEBONO et al Hearing Start Time: 9:00 AM
19CV349042 Hearing Type: Hearing: Demurrer
Date of Hearing: 07/28/2020 Comments:
Heard By: Barrett, Thang N Location: Department 21
Courtroom Reporter: - No Court Reporter Courtroom Clerk: Donna O'hara
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
Exhibits:
- No appearance.
No one called to contest the Tentative Ruling.
The tentative ruling is adopted. See below for ruling.
Lines 2-3
Case Name: SunPower Corporation v. Martin DeBono, et al. Case No.: 19CV349042
Currently before the Court are: (1) the demurrer by defendant Martin DeBono ( DeBono ) to the fourth cause
of action of the second amended complaint ( SAC ) of plaintiff SunPower Corporation ( SunPower }; and (2)
the motion by DeBono to strike portions of the third cause of action of the SAC.
Factual and Procedural Background
This action arises out of DeBono s alleged misappropriation of SunPower s proprietary information and trade
secrets. (SAC, 1.) According to the allegations of the operative SAC, DeBono was SunPower s Executive Vice
President of Global Channels and responsible for SunPower s rooftop solar business. (SAC, 1& 25.) When
he started at SunPower, DeBono signed a non-disclosure agreement whereby he agreed to safeguard
SunPower s confidential information and work exclusively for SunPower during his employment. (Id. at 92.)
DeBono later signed an employment agreement, in which he agreed not to actively engage in any other
employment without his supervisor s prior approval. (Id. at 93.)
While he was still employed with SunPower, DeBono began covertly working for defendant Standard
Industries Inc. (Standard ). (SAC, 3 & 47.) Specifically, DeBono drafted materials and a PowerPoint
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presentation related to how Standard could take over the integrated rooftop solar market, forwarded
proprietary and confidential emails to a private email account, and uploaded over 1,700 SunPower files to a
private OneDrive account. (Id. at 2-6, 48-54, & 58-60.) The emails contained confidential guidance to
SunPower s sales team on how to explain in detail to prospective and existing customers why SunPower s
solar offerings are better than the competition, a roadmap on different ways to differentiate and distinguish
the competition, often through use of technical and product testing data, and confidential and proprietary
information about SunPower s sales strategy approach and execution. (Id. at 4 &48.) The files uploaded to
the OneDrive account contained confidential technical information regarding SunPower s research and
development of products and technology, a confidential analysis of different ways to differentiate and
distinguish the competition, often through use of technical and product testing data, and proprietary,
confidential, and trade secret information about SunPower s sales strategy approach and execution, product
development, market analysis, dealer relationships, and strategic initiatives. (Id. at 6 & 58-60.)
When DeBono left SunPower on April 6, 2018, he entered into a separation agreement whereby he agreed to
return all SunPower files and documents, not use any confidential and/or proprietary information for the
benefit of any third party, and not solicit SunPower employees for one year. (SAC, 2 & 94-97.)
However, DeBono allegedly left with over 1,700 SunPower files providing a roadmap on how to build a
successful solar business. (SAC, 2.) These files included hundreds of SunPower confidential and proprietary
documents . (Ibid.)
In May 2018, DeBono joined Standard as an Executive Vice President, Head of Solar. (SAC, 25.) DeBono
later became president of defendant GAF Energy LLC ( GAF Energy ), Standard s new rooftop solar division.
(Id. at 1&25.) DeBono immediately began using SunPower s confidential information to solicit and target
other SunPower employees for hiring by Standard to build its new rooftop solar division, GAF Energy. (Id. at
2, 8-9, & 64.) DeBono allegedly stole SunPower s proprietary information and trade secrets to help Standard
and GAF Energy leapfrog past years of work needed to develop and market an integrated rooftop solar
product. (Id.at 1,9-11, 43-44, & 65-66.)
In June 2019, SunPower filed its original complaint against De Bono, Standard, and GAF Energy (collectively,
Defendants ). Thereafter, SunPower filed a first amended complaint ( FAC ) against Defendants, alleging
causes of action for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach of duty of
loyalty; (4) aiding and abetting breach of duty of loyalty; and (5) violation of Penal Code section 502.
DeBono then filed a demurrer to the third and fifth causes of action of the FAC and a motion to strike
portions of the second cause of action of the FAC.
On February 14, 2020, the Court issued orders on DeBono s demurrer and motion to strike. The Court
overruled the demurrer to the third cause of action and sustained the demurrer to the fifth cause of action,
with leave to amend. The Court denied the motion to strike portions of the second cause of action as to
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allegations regarding DeBono s work for Standard while he was still employed with SunPower and granted
the motion as to allegations regarding DeBono s solicitation of SunPower employees after his resignation
from SunPower.
SunPower filed the operative SAC against Defendants on February 24, 2020. The SAC alleges causes of action
for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach of duty of loyalty; and (4)
violation of Penal Code section 502.
On March 30, 2020, DeBono filed a demurrer to the fourth cause of action of the SAC and a motion to strike
portions of the third cause of action of the SAC. SunPower filed oppositions to the matters on July 15, 2020.
On July 21, 2020, DeBono filed his replies. Discussion |. Demurrer
DeBono demurs to the fourth cause of action for violation of Penal Code section 502 on the ground of failure
to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).)
A. Legal Standard
The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc.
Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617,
621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be
considered under the doctrine of judicial notice [citation]. (Hilltop Properties, Inc. v. State (1965) 233
Cal.App.2d 349, 353; Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to
test the truth of the allegations [in the challenged pleading] or the accuracy with which [the plaintiff]
describes the defendant s conduct. . [Citation.] Thus, the facts alleged in the pleading are deemed to be
true, however improbable they may be. [Citation.] [Citations.] (Align Technology, Inc. v. Tran (2009) 179
Cal.App.4th 949, 958.)
B. Fourth Cause of Action
DeBono initially argues the fourth cause of action for violation of Penal Code section 502 fails to allege
sufficient facts to state a claim because it is preempted by the California Uniform Trade Secrets Act ( CUTSA ).
CUTSA provides the exclusive civil remedy for conduct falling within its terms, so as to supersede other civil
remedies based upon misappropriation of a trade secret. (Silvaco Data Systems v. Intel Corp. (2010) 184
Cal.App.4th 210, 236 (Silvaco), disapproved of on other grounds in Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310; Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 505 (Angelica) [ a prime
purpose of the [CUTSA] was to sweep away the adopting states bewildering web of rules and rationales and
replace it with a uniform set of principles for determining when one is and is not liable for acquiring,
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disclosing, or using information ... of value. ].) A cause of action is displaced where the cause of action is
based on the same nucleus of facts as the misappropriation of trade secrets claim for relief. (K.C.
Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 955, internal
citations omitted.)
Notably, CUTSA preempts claims based on the misappropriation of confidential and/or proprietary
information, whether or not that information meets the statutory definition of trade secret. (See Mattel, Inc.
v. MGA Entertainment, Inc. (2010) 782 F.Supp.2d 911, 987; see also Loop Al Labs Inc v. Gatti (N.D. Cal. 2015)
2015 WL 5158461, at *3 [ the Court agrees with the vast majority of courts that have addressed this issue,
and finds that CUTSA supersedes claims based on the misappropriation of information that does not satisfy
the definition of trade secret under CUTSA, absent a property interest conferred on that information by some
other provision of law ]; SunPower Corp. v. SolarCity Corp. (N.D. Cal., Dec. 11, 2012, No. 12-CV-00694-LHK)
2012 WL 6160472, at *3-5.)
However, CUTSA does not displace claims that are related to trade secret misappropriation, but are
independent and based on facts distinct from the facts that support the misappropriation claim. (Angelica,
supra, 220 Cal.App.4th at pp. 499 & 506.)
As preliminary matter, there is a split of federal authority as to whether CUTSA can preempt a civil claim for
violation of Penal Code section 502.
DeBono relies on federal cases holding that CUTSA can apply to claims for violation of Penal Code section 502.
(See C&H Travel & Tours, Inc. v. Chow (Sept. 26, 2018, No. 218CVOG690RGKMRW) 2018 WL 6427369, at *2
[holding that because the plaintiff s Penal Code section 502 claim was preempted by CUTSA because that
claim and trade secret claim were based on the same nucleus of facts of the defendant s computer access at
the end of his
employment]; Johnson Controls, Inc. v. Therma, LLC (Aug. 17, 2018, No. SACV1800636AGKESX) 2018 WL
6133674, at *3 [because the complaint involved only one set of alleged facts about the defendants unlawfully
having and using confidential information, the noncontract state law claims, including a claim for violation of
Penal Code section 502, were preempted by CUTSA]; Western Air Charter, Inc. v. Schembari (Oct. 6, 2017, No.
CV 17-00420-AB (KSX)) 2017 WL 10638759, at *6 [the defendant s alleged use of the email system to
misappropriate confidential information is one of the factual allegations underlying [the] misappropriation
claim, [and] therefore any claim under 502(c)(3) would be preempted by CUTSA ]; Henry Schein, Inc. v. Cook
(Mar. 1, 2017, No. 16-CV-03166-JST) 2017 WL 783617, at *5 [holding a claim for violation of Penal Code
section 502 was preempted because it relied on facts underlying the plaintiff s CUTSA claim]; Contemporary
Services Corp. v. Landmark Event Staffing Services, Inc. (Sept. 9, 2014, No. SACVO900681BROANX) 2014 WL
12586121, at *19 [claim for violation of Penal Code section 502 was preempted because it arose out of the
same common nucleus of facts as claim for trade secret misappropriation], reversed in part on other grounds
in Contemporary Services Corporation v. Landmark Event Staffing Services, Inc. (2017) 677 Fed.Appx. 314; M
Seven System Limited v. Leap Wireless International, Inc. (June 26, 2013, No. 12-CV-1424 CAB (BLM)) 2013
WL 12072526, at *3 [claim for violation of Penal Code section 502 was preempted because there was no
material distinction between that claim and the claim for trade secret misappropriation]; Band Pro Film &
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Digital, Inc. v. ARRI Inc. (Oct. 10, 2012, No. CV 12-03226-CJC(ANX)) 2012 WL 12888099, at *2 [ Many of [the
plaintiff s] state law claims rely on the same nucleus of facts giving rise to its [CUTSA] claim, including its
claims for unauthorized access to computers, receiving stolen property, violation of the UCL, and breach of
fiduciary duty. To the extent these claims rely on [the defendant s] alleged hacking and misappropriation of
information, they are superseded [by CUTSA]. ].)
Conversely, SunPower relies on federal cases which hold that CUTSA does not apply civil claims for violation
of Penal Code section 502 because (1) CUTSA only applies to common law tort claims, not statutory claims,
and (2) Penal Code section 502 falls within the third exception to preemption listed in Civil Code section
3426.7, subdivision (b). (See JEB Group, Inc. v. San Jose ||| (Mar. 31, 2020, No. CV1904230CJCAGRX) 2020 WL
2790012, at *4 [holding that because a claim for violation of Penal Code section 502 is based on a statutory
violation, not common law, it is not preempted]; Heieck v. Federal Signal Corp. (Nov. 4, 2019, No.
SACV1802118AGKESX) 2019 WL 6873869, at *4 [holding that a claim under Penal Code section 502 was not
preempted because it is not a common law tort claim and Civil Code section 3426.7, subdivision (b)(3)
provides that CUTSA does not apply to criminal remedies]; Regents of the University of California v. Aisen
(Apr. 18, 2016, No. 15-CV-1766BEN (BLM)) 2016 WL 4097072, at *8 [ The trade secrets Act may preempt
other common law claims, [but] it does not preempt the statutory 502 claim J; Synopsys, Inc. v. Ubiquiti
Networks, Inc. (2018) 313 F.Supp.3d 1056, 1074 [finding that a claim for violation of Penal Code section 502
was not preempted because no California case law explicitly address[es] whether CUTSA would preempt a
statutory claim as opposed to a common law claim].)
The federal cases relied upon by SunPower are unpersuasive. First, those cases provide that CUTSA only
applies to common law tort claims, not statutory claims. But California case law establishes that CUTSA can
preempt statutory claims. (Silvaco, supra, 184 Cal.App.4th at pp. 232, 236, & 240-241 [holding that CUTSA
can preempt a statutory claim for unfair competition under Business and Professions Code section 17200].}
Second, some of the federal cases provide that a claim under Penal Code section 502 falls within the third
exception to preemption listed in Civil Code section 3426.7, subdivision (b). However, a claim for violation of
Penal Code section 502 does not fall under Civil Code section 3426.7, subdivision (b)(3). That provision states
that [t]his title does not affect criminal remedies, whether or not based upon misappropriation of a trade
secret. (Civ. Code, 3426.7, subd. (b)(3).) Although Penal Code section 502 is a criminal statute, it also
provides civil remedies as it permits a civil claim for relief. (Regents of the University of California v. Aisen
(Apr. 18, 2016, No. 15-CV-1766-BEN (BLM)) 2016 WL 4097072, at *7 [ California Penal Code 502 generally
proscribes unprivileged access to a computer network. And although it is a criminal provision, it also
permits a civil claim for relief. J; Pen. Code, 502, subd. (e)(1) [ In addition to any other civil remedy available,
the owner or lessee of the computer, computer system, computer network, computer program, or data who
suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil
action against the violator for compensatory damages and injunctive relief or other equitable relief. ].)
Because the fourth cause of action seeks civil remedies provided under Penal Code section 502, not criminal
remedies, the claim does not fall under Civil Code section 3426.7, subdivision (b)(3).
For these reasons, the Court agrees with the federal cases relied upon by DeBono that CUTSA can apply to
civil claims for violation of Penal Code section 502.
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Next, the Court considers whether the fourth cause of action for violation of Penal Code section 502 is based
on the same nucleus of facts as the first cause of action for misappropriation of trade secrets.
In the first cause of action, SunPower incorporates the general allegations of the FAC and alleges that its
technical and business information, cost information and cost projections, sales strategies, financial results,
competitor information, information on developing, optimizing, and scaling a digital customer experience,
marketing, solar product specification, and know how related to its solar products and business constitute
trade secrets as defined by [CUTSA]. (SAC, 120-121.) SunPower further alleges that it owns and possesses
certain proprietary, confidential, and trade secret information, as alleged above, including but not limited to,
information regarding current and future products under development that are not yet publicly or
commercially available, unique and valuable manufacturing methods, as well as its strategic supply
relationships and highly detailed information regarding pricing and sales strategies. (Ibid.) SunPower s trade
secrets contained in the over 1700 documents and 60 emails , derive independent economic value, both
actual and potential, from not being generally known to other persons, businesses, or the public, who could
obtain economic value from their disclosure or use. (Id. at 122.) DeBono allegedly misappropriated the
trade secret data, documents, and information described herein by uploading them to a cloud based private
OneDrive and accessing the OneDrive and modifying some of the documents containing trade secret
information while Standard s Executive Vice President, head of solar, and by taking the other actions alleged
herein. (Id. at 126 & 128, italics added.)
In the fourth cause of action, SunPower incorporates the preceding allegations of the FAC and alleges that
DeBono s conduct, as alleged herein, violated Penal Code 502(c)(1)}, in that he knowingly accessed and
without permission used [its] data, computer, computer system, and/or computer network to devise and/or
execute any scheme and/or artifice to defraud, deceive, and/or extort and to wrongfully control or obtain
proprietary, confidential, and trade secret property and data. (SAC, 179-180.). SunPower further alleges
that DeBono s conduct, as alleged herein, violated Penal Code 502(c}(2), in that he
knowingly accessed and without permission copied and/or made use of data and/or documents from [its]
computer, computer system, and computer network. (Id. at 181.) SunPower also alleges that DeBono s
conduct, as alleged herein, violated Penal Code 502(c)(7), in that he knowingly and without permission
accessed or caused to be accessed [its] computer, computer system, or computer network. (Id. at 182.)
DeBono s actions, as alleged herein, were outside the scope of any prior authority he ever had to access,
alter, damage, modify, obtain, control, and/or use, or cause to be accessed, altered, damaged, modified,
obtained, controlled and/or used, SunPower s computer, computer system, computer network and data,
including its proprietary, confidential, and trade secret information. (Id. at 183.) SunPower specifically
alleges that DeBono secretly uploaded [its] files from a SunPower-issued computer to a private OneDrive
account and e-mailed copies of documents to his personal email in the months leading up to his departure to
Standard/GAF Energy. (Id. at 186.) DeBono took over 1,700 SunPower files by uploading them to his
private OneDrive when he left SunPower and did not return them. (Id. at 187.) DeBono later accessed at
least 12 files that he took from SunPower. (Id. at 188.) DeBono also forwarded 60 internal SunPower emails
to a private email account. (Id. at 190.) Finally, DeBono drafted a PowerPoint for Standard on SunPower
time, using his SunPower computer, and incorporating data from Greentech Media data a subscription
service paid for by SunPower. (ld. at 191-192.) DeBono then shared the PowerPoint presentation by
uploading it to his private OneDrive account and emailing it to his personal email. (Id. at 193.)
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In this Court s opinion, the fourth cause of action for violation of Penal Code section 502 appears to be based
on the same common nucleus of facts as the first cause of action for misappropriation of trade secrets, i.e.,
DeBono uploaded SunPower files to a private OneDrive account, emailed copies of SunPower documents and
internal SunPower emails to his personal email account, and used SunPower s computer systems, resources,
and data to create a PowerPoint presentation, which he uploaded to his private OneDrive account and
emailed to his personal email. The specific acts that form the basis of the claims involve the use and taking of
SunPower s confidential, proprietary, and trade secret information. Therefore, the fourth cause of action is
preempted by CUTSA.
Accordingly, DeBono s demurrer to the fourth cause of action on the ground of failure to allege sufficient
facts to state a claim is SUSTAINED, without leave to amend. 1
Il. Motion to Strike
DeBono moves to strike portions of the third cause of action for breach of duty of loyalty.
1 SunPower s objections to DeBono s argument raised for the first time in his reply, that SunPower has failed
to plead unauthorized access, are sustained. SunPower s request to strike language in DeBono s reply
concerning this argument is granted. In any event, the Court notes that in view of the Court s conclusion that
the fourth cause of action is preempted by CUTSA, the issue of whether this cause of action otherwise states
a claim under Penal Code section 502 is moot and needs not be addressed by the Court.
A. Request for Judicial Notice
In connection with its opposition, SunPower asks the Court to take judicial notice of the following court
records: (1) DeBono s demurrer to the third and fifth causes of action of the FAC; (2) DeBono s motion to
strike portions of the second cause of action of the FAC; (3) the court order on DeBono s demurrer; and (4)
the court order on DeBono s motion to strike.
These documents are generally proper subjects of judicial notice as they are court records relevant to
arguments raised in connection with the pending motion to strike. (See Evid. Code, 452, subd. (d)
[permitting judicial notice of court records]; see also People v. Woodell (1998) 17 Cal.4th 448, 455 [courts
may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the
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results reached in the documents such as orders, statements of decision, and judgments but [courts] cannot
take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings,
affidavits, testimony, or statements of fact ].)
Accordingly, SunPower s request for judicial notice is GRANTED.
B. Legal Standard
Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter
inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the
laws of this state, a court rule, or an order of the court. (Code Civ. Proc., 436.) The grounds for a motion to
strike must appear on the face of the challenged pleading or from matters of which the court may take
judicial notice. (Code Civ. Proc., 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading
as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v.
Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67
Cal.App.4th 1253, 1255.)
C. Merits of the Motion
DeBono argues the Court should strike portions of the third cause of action for breach of duty of loyalty that
are predicated on his alleged receipt and nondisclosure of a job offer from Standard and his participation in
SunPower s Voluntary Departure Program (VDP ). DeBono contends those allegations should be stricken
because he did not have a duty to disclose the job offer from Standard or to refrain from participating in the
VDP.
In opposition, SunPower asserts, among other things, that DeBono s arguments may not be considered
because Code of Civil Procedure section 435.5 precludes a party from moving to strike any portion of an
amended pleading on grounds that could have been raised by a motion to strike as to the earlier version of
pleading.
SunPower s point is well-taken. Code of Civil Procedure section 435.5, subdivision (b) provides that [a] party
moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading
was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a
motion to strike as to the earlier version
of the pleading. 2 By enacting this statute, the Legislature intended to require[ ] moving parties to assert in
their initial motion to strike all viable arguments. Any valid argument not ally asserted will be forfeited in
a subsequent motion to strike. ... This limitation streamlines the process by avoiding piecemeal motion
practice. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 644 (2017-2017 Reg. Sess.) July 11, 2017.)
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Here, DeBono s arguments do not address new allegations in the pleading or a change in SunPower s legal
theory. Instead, DeBono challenges portions of the third cause of action that were present in the FAC. Thus,
DeBono could have raised his arguments in his earlier motion to strike portions of the FAC. Because DeBono
s arguments could have been raised in his earlier motion to strike, the arguments are forfeit.
In reply, DeBono contends the instant motion does not violate Code of Civil Procedure section 435.5 because
he previously raised these arguments in his demurrer to the FAC. DeBono does not identify any legal
authority, and the Court is aware of none, providing that a party s assertion of arguments in a demurrer
excuses the party s failure to raise all viable arguments in an earlier motion to strike. Consequently, the point
is without foundation and requires no further discussion. (See Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785 [ When [a party] fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived. J; see also Guardianship of C.E.
(2019) 31 Cal.App.5th 1038, 1053 [courts need not address claim[s] for which no supporting legal authority
is provided J.)
Accordingly, DeBono s motion to strike portions of the third cause of action is DENIED.
2 The word grounds in the statute could be viewed as referring to the statutorily enumerated grounds for a
motion to strike under Code of Civil Procedure section 436, e.g., to strike out any irrelevant, false, or
improper matter inserted in any pleading. The legislative history, however, indicates that the grounds
contemplated are arguments that could have been raised in a prior motion to strike. In enacting this statute,
the Legislature expressly stated the provision was intended to require[ ] moving parties to assert in their
initial motion to strike all viable arguments. Any valid argument not initially asserted will be forfeited in a
subsequent motion to strike. ... This limitation streamlines the process by avoiding piecemeal motion
practice. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 644 (2017-2017 Reg. Sess.) July 11, 2017.)
Thus, the Court construes the term grounds as arguments that could have been raised in a prior motion to
strike.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER SUNPOWER CORPORATION vs MARTIN DEBONO et al Hearing Start Time: 9:00 AM 19CV349042 Hearing Type: Hearing: Demurrer Date of Hearing: 07/28/2020 Comments: Heard By: Barrett, Thang N Location: Department 21 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Donna O'hara Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. No one called to contest the Tentative Ruling. The tentative ruling is adopted. See below for ruling. Lines 2-3 Case Name: SunPower Corporation v. Martin DeBono, et al. Case No.: 19CV349042 Currently before the Court are: (1) the demurrer by defendant Martin DeBono ( DeBono ) to the fourth cause of action of the second amended complaint ( SAC ) of plaintiff SunPower Corporation ( SunPower }; and (2) the motion by DeBono to strike portions of the third cause of action of the SAC. Factual and Procedural Background This action arises out of DeBono s alleged misappropriation of SunPower s proprietary information and trade secrets. (SAC, 1.) According to the allegations of the operative SAC, DeBono was SunPower s Executive Vice President of Global Channels and responsible for SunPower s rooftop solar business. (SAC, 1& 25.) When he started at SunPower, DeBono signed a non-disclosure agreement whereby he agreed to safeguard SunPower s confidential information and work exclusively for SunPower during his employment. (Id. at 92.) DeBono later signed an employment agreement, in which he agreed not to actively engage in any other employment without his supervisor s prior approval. (Id. at 93.) While he was still employed with SunPower, DeBono began covertly working for defendant Standard Industries Inc. (Standard ). (SAC, 3 & 47.) Specifically, DeBono drafted materials and a PowerPoint Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 1 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER presentation related to how Standard could take over the integrated rooftop solar market, forwarded proprietary and confidential emails to a private email account, and uploaded over 1,700 SunPower files to a private OneDrive account. (Id. at 2-6, 48-54, & 58-60.) The emails contained confidential guidance to SunPower s sales team on how to explain in detail to prospective and existing customers why SunPower s solar offerings are better than the competition, a roadmap on different ways to differentiate and distinguish the competition, often through use of technical and product testing data, and confidential and proprietary information about SunPower s sales strategy approach and execution. (Id. at 4 &48.) The files uploaded to the OneDrive account contained confidential technical information regarding SunPower s research and development of products and technology, a confidential analysis of different ways to differentiate and distinguish the competition, often through use of technical and product testing data, and proprietary, confidential, and trade secret information about SunPower s sales strategy approach and execution, product development, market analysis, dealer relationships, and strategic initiatives. (Id. at 6 & 58-60.) When DeBono left SunPower on April 6, 2018, he entered into a separation agreement whereby he agreed to return all SunPower files and documents, not use any confidential and/or proprietary information for the benefit of any third party, and not solicit SunPower employees for one year. (SAC, 2 & 94-97.) However, DeBono allegedly left with over 1,700 SunPower files providing a roadmap on how to build a successful solar business. (SAC, 2.) These files included hundreds of SunPower confidential and proprietary documents . (Ibid.) In May 2018, DeBono joined Standard as an Executive Vice President, Head of Solar. (SAC, 25.) DeBono later became president of defendant GAF Energy LLC ( GAF Energy ), Standard s new rooftop solar division. (Id. at 1&25.) DeBono immediately began using SunPower s confidential information to solicit and target other SunPower employees for hiring by Standard to build its new rooftop solar division, GAF Energy. (Id. at 2, 8-9, & 64.) DeBono allegedly stole SunPower s proprietary information and trade secrets to help Standard and GAF Energy leapfrog past years of work needed to develop and market an integrated rooftop solar product. (Id.at 1,9-11, 43-44, & 65-66.) In June 2019, SunPower filed its original complaint against De Bono, Standard, and GAF Energy (collectively, Defendants ). Thereafter, SunPower filed a first amended complaint ( FAC ) against Defendants, alleging causes of action for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach of duty of loyalty; (4) aiding and abetting breach of duty of loyalty; and (5) violation of Penal Code section 502. DeBono then filed a demurrer to the third and fifth causes of action of the FAC and a motion to strike portions of the second cause of action of the FAC. On February 14, 2020, the Court issued orders on DeBono s demurrer and motion to strike. The Court overruled the demurrer to the third cause of action and sustained the demurrer to the fifth cause of action, with leave to amend. The Court denied the motion to strike portions of the second cause of action as to Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 2 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER allegations regarding DeBono s work for Standard while he was still employed with SunPower and granted the motion as to allegations regarding DeBono s solicitation of SunPower employees after his resignation from SunPower. SunPower filed the operative SAC against Defendants on February 24, 2020. The SAC alleges causes of action for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach of duty of loyalty; and (4) violation of Penal Code section 502. On March 30, 2020, DeBono filed a demurrer to the fourth cause of action of the SAC and a motion to strike portions of the third cause of action of the SAC. SunPower filed oppositions to the matters on July 15, 2020. On July 21, 2020, DeBono filed his replies. Discussion |. Demurrer DeBono demurs to the fourth cause of action for violation of Penal Code section 502 on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).) A. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice [citation]. (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant s conduct. . [Citation.] Thus, the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.] [Citations.] (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) B. Fourth Cause of Action DeBono initially argues the fourth cause of action for violation of Penal Code section 502 fails to allege sufficient facts to state a claim because it is preempted by the California Uniform Trade Secrets Act ( CUTSA ). CUTSA provides the exclusive civil remedy for conduct falling within its terms, so as to supersede other civil remedies based upon misappropriation of a trade secret. (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 236 (Silvaco), disapproved of on other grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310; Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 505 (Angelica) [ a prime purpose of the [CUTSA] was to sweep away the adopting states bewildering web of rules and rationales and replace it with a uniform set of principles for determining when one is and is not liable for acquiring, Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 3 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER disclosing, or using information ... of value. ].) A cause of action is displaced where the cause of action is based on the same nucleus of facts as the misappropriation of trade secrets claim for relief. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 955, internal citations omitted.) Notably, CUTSA preempts claims based on the misappropriation of confidential and/or proprietary information, whether or not that information meets the statutory definition of trade secret. (See Mattel, Inc. v. MGA Entertainment, Inc. (2010) 782 F.Supp.2d 911, 987; see also Loop Al Labs Inc v. Gatti (N.D. Cal. 2015) 2015 WL 5158461, at *3 [ the Court agrees with the vast majority of courts that have addressed this issue, and finds that CUTSA supersedes claims based on the misappropriation of information that does not satisfy the definition of trade secret under CUTSA, absent a property interest conferred on that information by some other provision of law ]; SunPower Corp. v. SolarCity Corp. (N.D. Cal., Dec. 11, 2012, No. 12-CV-00694-LHK) 2012 WL 6160472, at *3-5.) However, CUTSA does not displace claims that are related to trade secret misappropriation, but are independent and based on facts distinct from the facts that support the misappropriation claim. (Angelica, supra, 220 Cal.App.4th at pp. 499 & 506.) As preliminary matter, there is a split of federal authority as to whether CUTSA can preempt a civil claim for violation of Penal Code section 502. DeBono relies on federal cases holding that CUTSA can apply to claims for violation of Penal Code section 502. (See C&H Travel & Tours, Inc. v. Chow (Sept. 26, 2018, No. 218CVOG690RGKMRW) 2018 WL 6427369, at *2 [holding that because the plaintiff s Penal Code section 502 claim was preempted by CUTSA because that claim and trade secret claim were based on the same nucleus of facts of the defendant s computer access at the end of his employment]; Johnson Controls, Inc. v. Therma, LLC (Aug. 17, 2018, No. SACV1800636AGKESX) 2018 WL 6133674, at *3 [because the complaint involved only one set of alleged facts about the defendants unlawfully having and using confidential information, the noncontract state law claims, including a claim for violation of Penal Code section 502, were preempted by CUTSA]; Western Air Charter, Inc. v. Schembari (Oct. 6, 2017, No. CV 17-00420-AB (KSX)) 2017 WL 10638759, at *6 [the defendant s alleged use of the email system to misappropriate confidential information is one of the factual allegations underlying [the] misappropriation claim, [and] therefore any claim under 502(c)(3) would be preempted by CUTSA ]; Henry Schein, Inc. v. Cook (Mar. 1, 2017, No. 16-CV-03166-JST) 2017 WL 783617, at *5 [holding a claim for violation of Penal Code section 502 was preempted because it relied on facts underlying the plaintiff s CUTSA claim]; Contemporary Services Corp. v. Landmark Event Staffing Services, Inc. (Sept. 9, 2014, No. SACVO900681BROANX) 2014 WL 12586121, at *19 [claim for violation of Penal Code section 502 was preempted because it arose out of the same common nucleus of facts as claim for trade secret misappropriation], reversed in part on other grounds in Contemporary Services Corporation v. Landmark Event Staffing Services, Inc. (2017) 677 Fed.Appx. 314; M Seven System Limited v. Leap Wireless International, Inc. (June 26, 2013, No. 12-CV-1424 CAB (BLM)) 2013 WL 12072526, at *3 [claim for violation of Penal Code section 502 was preempted because there was no material distinction between that claim and the claim for trade secret misappropriation]; Band Pro Film & Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 4 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Digital, Inc. v. ARRI Inc. (Oct. 10, 2012, No. CV 12-03226-CJC(ANX)) 2012 WL 12888099, at *2 [ Many of [the plaintiff s] state law claims rely on the same nucleus of facts giving rise to its [CUTSA] claim, including its claims for unauthorized access to computers, receiving stolen property, violation of the UCL, and breach of fiduciary duty. To the extent these claims rely on [the defendant s] alleged hacking and misappropriation of information, they are superseded [by CUTSA]. ].) Conversely, SunPower relies on federal cases which hold that CUTSA does not apply civil claims for violation of Penal Code section 502 because (1) CUTSA only applies to common law tort claims, not statutory claims, and (2) Penal Code section 502 falls within the third exception to preemption listed in Civil Code section 3426.7, subdivision (b). (See JEB Group, Inc. v. San Jose ||| (Mar. 31, 2020, No. CV1904230CJCAGRX) 2020 WL 2790012, at *4 [holding that because a claim for violation of Penal Code section 502 is based on a statutory violation, not common law, it is not preempted]; Heieck v. Federal Signal Corp. (Nov. 4, 2019, No. SACV1802118AGKESX) 2019 WL 6873869, at *4 [holding that a claim under Penal Code section 502 was not preempted because it is not a common law tort claim and Civil Code section 3426.7, subdivision (b)(3) provides that CUTSA does not apply to criminal remedies]; Regents of the University of California v. Aisen (Apr. 18, 2016, No. 15-CV-1766BEN (BLM)) 2016 WL 4097072, at *8 [ The trade secrets Act may preempt other common law claims, [but] it does not preempt the statutory 502 claim J; Synopsys, Inc. v. Ubiquiti Networks, Inc. (2018) 313 F.Supp.3d 1056, 1074 [finding that a claim for violation of Penal Code section 502 was not preempted because no California case law explicitly address[es] whether CUTSA would preempt a statutory claim as opposed to a common law claim].) The federal cases relied upon by SunPower are unpersuasive. First, those cases provide that CUTSA only applies to common law tort claims, not statutory claims. But California case law establishes that CUTSA can preempt statutory claims. (Silvaco, supra, 184 Cal.App.4th at pp. 232, 236, & 240-241 [holding that CUTSA can preempt a statutory claim for unfair competition under Business and Professions Code section 17200].} Second, some of the federal cases provide that a claim under Penal Code section 502 falls within the third exception to preemption listed in Civil Code section 3426.7, subdivision (b). However, a claim for violation of Penal Code section 502 does not fall under Civil Code section 3426.7, subdivision (b)(3). That provision states that [t]his title does not affect criminal remedies, whether or not based upon misappropriation of a trade secret. (Civ. Code, 3426.7, subd. (b)(3).) Although Penal Code section 502 is a criminal statute, it also provides civil remedies as it permits a civil claim for relief. (Regents of the University of California v. Aisen (Apr. 18, 2016, No. 15-CV-1766-BEN (BLM)) 2016 WL 4097072, at *7 [ California Penal Code 502 generally proscribes unprivileged access to a computer network. And although it is a criminal provision, it also permits a civil claim for relief. J; Pen. Code, 502, subd. (e)(1) [ In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. ].) Because the fourth cause of action seeks civil remedies provided under Penal Code section 502, not criminal remedies, the claim does not fall under Civil Code section 3426.7, subdivision (b)(3). For these reasons, the Court agrees with the federal cases relied upon by DeBono that CUTSA can apply to civil claims for violation of Penal Code section 502. Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 5 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Next, the Court considers whether the fourth cause of action for violation of Penal Code section 502 is based on the same nucleus of facts as the first cause of action for misappropriation of trade secrets. In the first cause of action, SunPower incorporates the general allegations of the FAC and alleges that its technical and business information, cost information and cost projections, sales strategies, financial results, competitor information, information on developing, optimizing, and scaling a digital customer experience, marketing, solar product specification, and know how related to its solar products and business constitute trade secrets as defined by [CUTSA]. (SAC, 120-121.) SunPower further alleges that it owns and possesses certain proprietary, confidential, and trade secret information, as alleged above, including but not limited to, information regarding current and future products under development that are not yet publicly or commercially available, unique and valuable manufacturing methods, as well as its strategic supply relationships and highly detailed information regarding pricing and sales strategies. (Ibid.) SunPower s trade secrets contained in the over 1700 documents and 60 emails , derive independent economic value, both actual and potential, from not being generally known to other persons, businesses, or the public, who could obtain economic value from their disclosure or use. (Id. at 122.) DeBono allegedly misappropriated the trade secret data, documents, and information described herein by uploading them to a cloud based private OneDrive and accessing the OneDrive and modifying some of the documents containing trade secret information while Standard s Executive Vice President, head of solar, and by taking the other actions alleged herein. (Id. at 126 & 128, italics added.) In the fourth cause of action, SunPower incorporates the preceding allegations of the FAC and alleges that DeBono s conduct, as alleged herein, violated Penal Code 502(c)(1)}, in that he knowingly accessed and without permission used [its] data, computer, computer system, and/or computer network to devise and/or execute any scheme and/or artifice to defraud, deceive, and/or extort and to wrongfully control or obtain proprietary, confidential, and trade secret property and data. (SAC, 179-180.). SunPower further alleges that DeBono s conduct, as alleged herein, violated Penal Code 502(c}(2), in that he knowingly accessed and without permission copied and/or made use of data and/or documents from [its] computer, computer system, and computer network. (Id. at 181.) SunPower also alleges that DeBono s conduct, as alleged herein, violated Penal Code 502(c)(7), in that he knowingly and without permission accessed or caused to be accessed [its] computer, computer system, or computer network. (Id. at 182.) DeBono s actions, as alleged herein, were outside the scope of any prior authority he ever had to access, alter, damage, modify, obtain, control, and/or use, or cause to be accessed, altered, damaged, modified, obtained, controlled and/or used, SunPower s computer, computer system, computer network and data, including its proprietary, confidential, and trade secret information. (Id. at 183.) SunPower specifically alleges that DeBono secretly uploaded [its] files from a SunPower-issued computer to a private OneDrive account and e-mailed copies of documents to his personal email in the months leading up to his departure to Standard/GAF Energy. (Id. at 186.) DeBono took over 1,700 SunPower files by uploading them to his private OneDrive when he left SunPower and did not return them. (Id. at 187.) DeBono later accessed at least 12 files that he took from SunPower. (Id. at 188.) DeBono also forwarded 60 internal SunPower emails to a private email account. (Id. at 190.) Finally, DeBono drafted a PowerPoint for Standard on SunPower time, using his SunPower computer, and incorporating data from Greentech Media data a subscription service paid for by SunPower. (ld. at 191-192.) DeBono then shared the PowerPoint presentation by uploading it to his private OneDrive account and emailing it to his personal email. (Id. at 193.) Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 6 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In this Court s opinion, the fourth cause of action for violation of Penal Code section 502 appears to be based on the same common nucleus of facts as the first cause of action for misappropriation of trade secrets, i.e., DeBono uploaded SunPower files to a private OneDrive account, emailed copies of SunPower documents and internal SunPower emails to his personal email account, and used SunPower s computer systems, resources, and data to create a PowerPoint presentation, which he uploaded to his private OneDrive account and emailed to his personal email. The specific acts that form the basis of the claims involve the use and taking of SunPower s confidential, proprietary, and trade secret information. Therefore, the fourth cause of action is preempted by CUTSA. Accordingly, DeBono s demurrer to the fourth cause of action on the ground of failure to allege sufficient facts to state a claim is SUSTAINED, without leave to amend. 1 Il. Motion to Strike DeBono moves to strike portions of the third cause of action for breach of duty of loyalty. 1 SunPower s objections to DeBono s argument raised for the first time in his reply, that SunPower has failed to plead unauthorized access, are sustained. SunPower s request to strike language in DeBono s reply concerning this argument is granted. In any event, the Court notes that in view of the Court s conclusion that the fourth cause of action is preempted by CUTSA, the issue of whether this cause of action otherwise states a claim under Penal Code section 502 is moot and needs not be addressed by the Court. A. Request for Judicial Notice In connection with its opposition, SunPower asks the Court to take judicial notice of the following court records: (1) DeBono s demurrer to the third and fifth causes of action of the FAC; (2) DeBono s motion to strike portions of the second cause of action of the FAC; (3) the court order on DeBono s demurrer; and (4) the court order on DeBono s motion to strike. These documents are generally proper subjects of judicial notice as they are court records relevant to arguments raised in connection with the pending motion to strike. (See Evid. Code, 452, subd. (d) [permitting judicial notice of court records]; see also People v. Woodell (1998) 17 Cal.4th 448, 455 [courts may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 7 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER results reached in the documents such as orders, statements of decision, and judgments but [courts] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact ].) Accordingly, SunPower s request for judicial notice is GRANTED. B. Legal Standard Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) C. Merits of the Motion DeBono argues the Court should strike portions of the third cause of action for breach of duty of loyalty that are predicated on his alleged receipt and nondisclosure of a job offer from Standard and his participation in SunPower s Voluntary Departure Program (VDP ). DeBono contends those allegations should be stricken because he did not have a duty to disclose the job offer from Standard or to refrain from participating in the VDP. In opposition, SunPower asserts, among other things, that DeBono s arguments may not be considered because Code of Civil Procedure section 435.5 precludes a party from moving to strike any portion of an amended pleading on grounds that could have been raised by a motion to strike as to the earlier version of pleading. SunPower s point is well-taken. Code of Civil Procedure section 435.5, subdivision (b) provides that [a] party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading. 2 By enacting this statute, the Legislature intended to require[ ] moving parties to assert in their initial motion to strike all viable arguments. Any valid argument not ally asserted will be forfeited in a subsequent motion to strike. ... This limitation streamlines the process by avoiding piecemeal motion practice. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 644 (2017-2017 Reg. Sess.) July 11, 2017.) Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page B of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Here, DeBono s arguments do not address new allegations in the pleading or a change in SunPower s legal theory. Instead, DeBono challenges portions of the third cause of action that were present in the FAC. Thus, DeBono could have raised his arguments in his earlier motion to strike portions of the FAC. Because DeBono s arguments could have been raised in his earlier motion to strike, the arguments are forfeit. In reply, DeBono contends the instant motion does not violate Code of Civil Procedure section 435.5 because he previously raised these arguments in his demurrer to the FAC. DeBono does not identify any legal authority, and the Court is aware of none, providing that a party s assertion of arguments in a demurrer excuses the party s failure to raise all viable arguments in an earlier motion to strike. Consequently, the point is without foundation and requires no further discussion. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [ When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. J; see also Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053 [courts need not address claim[s] for which no supporting legal authority is provided J.) Accordingly, DeBono s motion to strike portions of the third cause of action is DENIED. 2 The word grounds in the statute could be viewed as referring to the statutorily enumerated grounds for a motion to strike under Code of Civil Procedure section 436, e.g., to strike out any irrelevant, false, or improper matter inserted in any pleading. The legislative history, however, indicates that the grounds contemplated are arguments that could have been raised in a prior motion to strike. In enacting this statute, the Legislature expressly stated the provision was intended to require[ ] moving parties to assert in their initial motion to strike all viable arguments. Any valid argument not initially asserted will be forfeited in a subsequent motion to strike. ... This limitation streamlines the process by avoiding piecemeal motion practice. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 644 (2017-2017 Reg. Sess.) July 11, 2017.) Thus, the Court construes the term grounds as arguments that could have been raised in a prior motion to strike. Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 9 of 10SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 7/28/2020 07/28/2020 Hearing: Demurrer - 19CV349042 Page 10 of 10