Preview
ORIGINAL
wn
oO wm NO
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
RONALD J. HOLLAND, Cal. Bar No. 148687
BABAK YOUSEFZADEH, Cal. Bar No. 235974
DORNA MOINI, Cal. Bar No, 287115
Four Embarcadero Center, 17" Floor
San Francisco, California 94111-4109
Telephone: 415.434.9100
Facsimile: 415.434.3947
Attorneys for Plaintiff BENTLY BIOFUELS
COLLECTION SERVICES LLC d/b/a BENTLY
BIOFUELS COLLECTION SERVICES, LLC,
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/13/2015
Clerk of the Court
BY:ANNIE PASCUAL
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC d/b/a
BENTLY BIOFUELS COLLECTION
SERVICES, LLC,
Plaintiff,
v.
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
Case No. CGC-13-535864
NOTICE OF ENTRY OF ORDER
GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
[Complaint Filed: December 3, 2013]
-l- Case No. CGC-13-535864
SMRH:436722637.1
NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENTTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE IS HEREBY GIVEN that on March 12, 2015, the above-entitled Court duly
entered an Order Granting Plaintiff's Motion for Summary Judgment. Said order is attached
hereto as “Exhibit 1” and incorporated herein by reference.
Dated: March 12, 2015
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By a
ONALD J. HOLLAND
BABYK YOUSEFZADEH
ORNA MOINI
Attorneys for Plaintiff
BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a
BENTLY BIOFUELS COLLECTION SERVICES, LLC,
-2- Case No, CGC-13-535864
SMRH-436722637.1 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENTEXHIBIT 1NY DA WB wW KN
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
RONALD J, HOLLAND, Cal. Bar No. 148687 ENDORSED
BABAK YOUSEFZADEH, Cal. Bar No. 235974 suberiol cdots ea:
DORNA MOINI, Cal. Bar No, 287115 County f San Francisco
Four Embarcadero Center, 17" Floor
San a California 94111-4109 MAR 122015
Telephone: 415.434.9100
Facsimile: 415.434.3947 CLERK OF THE COURT
Email: rholland@sheppardmullin.com By: SEAN KANE
byousefzadeh@sheppardmullin.com Deputy Clerk
dmoini@sheppardmullin.com
Attorneys for Plaintiff BENTLY BIOFUELS
COLLECTION SERVICES LLC d/b/a BENTLY
BIOFUELS COLLECTION SERVICES, LLC,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC d/b/a
BENTLY BIOFUELS COLLECTION
SERVICES, LLC,
Plaintiff,
v.
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
Case No, CGC-13-535864
[RROPOSED] ORDER GRANTING
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
Date: March 12, 2015
Time: 9:30 a.m.
Dept: 302
Reservation No. 121714-09
{Complaint Filed: December 3, 2013]
-1- Case No. CGC-13-535864
SMRH:436715884.1
{PRUPOSED] ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENTCe NDA HW BF wD
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
The Motion for Summary Judgment, or in the Alternative, Summary Adjudication
(“Motion”) of Plaintiff Bently Biofuels Company LLC d/b/a Bently Biofuels Collection Services,
LLC (“Plaintiff”) against K. David Fisher and 3D Oil&Grease, LLC (“Defendants” or
“Defendant”) came on for hearing on March 12, 2015, at 9:30 a.m., before this Court in
Department 302 of this Court, the Honorable Ernest H. Goldsmith, presiding. The Court adopts its
tentative ruling as follows:
Granted. No opposition filed. Specifically, the Court finds that:
1. Plaintiff submitted 83 Undisputed Material Facts in support of 8 causes of action.
Defendants having failed to oppose Plaintiff's Motion or any of the Undisputed Material Facts,
these facts remain uncontested. Accordingly, Plaintiff has established the prima facie elements of
each of its causes of action.
2. AS TO PLAINTIFF’S FIRST CAUSE OF ACTION: Plaintiff has established the
Defendants violated his contractual obligations when he used the Employment Agreement and
Settlement Agreement and Release for his own benefit and the benefit of 3D, and against
Plaintiff's interest. Defendant’s breach of these obligations have caused harm to Plaintiff.
3. AS TO PLAINTIFF’S SECOND AND THIRD CAUSES OF ACTION: Plaintiff
has established that the Defendants induced a breach of contract and tortiously interfered with
contractual relations because: (a) Defendants were aware Plaintiff had both oral and written
contracts with its vendors; (b) the deals Defendant Fisher made while working for Got Grease
were on behalf of the Company, meaning they belonged to Got Grease; (c) Plaintiff had a
contractual right to act as the exclusive service provider for its customers and Defendants engaged
in various intentional acts that have disrupted these contracts or induced breach by customers; and
(d) an actual breach or disruption of its contracts, and resulting damage occurred as a result of
Defendants’ acts.
4. AS TO PLAINTIFF’S FOURTH CAUSE OF ACTION: Defendants engaged in
tortious interference with prospective and economic advantage, a tort which is similar to
interference with contractual relations, except that Plaintiff need not show a consummated binding
22- Case No, CGC-13-535864
SMRH:436715884.1 _EPROPOSEDTORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENTcontract. Plaintiff established that it had economic relationships with its clients for used oil
collection services, and the probability of future economic benefit from continuing those
relationships. Plaintiff established that Defendants interfered with Plaintiffs economic relations
by means of conversion, misappropriation of trade secrets, and Business and Professions Code §
17200 et. seq. (“Unfair Competition Law” or “UCL”).
5. AS TO PLAINTIFF’S FIFTH CAUSE OF ACTION: Defendants committed an act
of conversion by wrongfully exerting dominion over Plaintiff's property in denial of or
inconsistent with his rights. Plaintiff established that Defendants, knowing that the cooking oil
bins placed on customer property belonged to the Plaintiff, took used cooking oil out of Plaintiff's
bins. Plaintiff further established that Defendants took Plaintiff's oil containers from customer
premises and exchanged them for his own, while never turning over profits made from the sale of
the used oil he stole from Plaintiff's bins. As such, Plaintiff has established that Defendants’
misconduct in taking Plaintiff's used cooking oil and collection bins amount to conversion, as
does his failure to return the proceeds of selling Plaintiffs used cooking oil.
6. AS TO PLAINTIFF’S SIXTH AND SEVENTH CAUSES OF ACTION: Plaintiff
has established that Defendants engaged in fraud and negligent misrepresentation because
Defendants concealed from Plaintiff the fact that Fisher was misrepresenting himself as a
company employee in his dealings with Plaintiff's customers, and thus misled customers into
believing he was associated with Plaintiff.
7. AS TO PLAINTIFF’S EIGHTH CAUSE OF ACTION: Defendants engaged in
unfair business practices and unfair competition under Business and Professions Code 17200 (‘‘the
UCL”). Business and Professions Code 17200 borrows violations of other laws as independently
actionable under Section 17200 when committed pursuant to business activity. Plaintiff
established that: (a) 3D OIL&GREASE competes with Plaintiff; and (b) Defendants intentionally
and unfairly competed with Plaintiff when they converted Plaintiff's property and interfered with
Plaintiff's property to prevent it from competing, misappropriated Plaintiff's trade secrets,
misrepresented themselves to Plaintiff's customers, falsified used oil manifests for a truck that did
-3- Case No, CGC-13-535864
SMRH:436715884.1 APROPROSEBTORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENTCoe NAH BF wWN
Ss
not have a CDFA decal so they could compete unlawfully before obtaining proper licensure, and
knowingly operating without legally required licenses to gain an unfair advantage over Plaintiff.
a. CONVERSION: Plaintiff established that Defendants converted Plaintiff’ s
collection bins and used oil, preventing Plaintiff from transacting with its customers, unlawfully
profiting from Plaintiffs customers, and unlawfully competing with Plaintiff.
b. MISAPPROPRIATION OF TRADE SECRETS: Plaintiff established that
Defendants misappropriated Plaintiff's trade secrets by obtaining Plaintiffs customer, contact, and
price information, as well as strategies and specialized needs and preferences of customers, under
circumstances that gave rise to a duty to maintain secrecy. Plaintiff has further established that
Defendants used that information for his own benefit and for 3D’s benefit without Plaintiff's
consent, with full knowledge that the acquisition of this information was through improper means.
Lastly, Plaintiff established that Defendants used Plaintiff's proprietary information in order to
solicit Plaintiffs customers and collect the oil for his and 3D’s benefit, thus gaining an unfair
advantage over Plaintiff.
c. MISREPRESENTATION: Plaintiff has established that Defendant engaged in
unfair competition because Defendant used Plaintiff's trade name or badge, thereby deceiving and
misleading Plaintiff's customers and vendors, causing them to trade with Defendant when they
meant to trade with Plaintiff.
d. OPERATING WITHOUT LEGALLY MANDATED LICENSES AND
FALSIFIED RECORDS: Plaintiff has established that Defendant operated without legally
mandated licenses and falsified records, competing with Plaintiff unlawfully.
IT IS THEREFORE ORDERED that, Plaintiffs Motion is granted in its entirety and
that judgment be entered forthwith in favor of Plaintiff as to the issues and claims for relief set
forth above.
MAR 122015 NEST H. GOLDSMITH
DATED:
HONORABLE ERNEST H. GOLDSMITH
SAN FRANCISCO COUNTY SUPERIOR COURT
“4. Case No. CGC-13-535864.
SMRH:436715884.1 4PROPOSEDFORBER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENTCUD ew IND
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to this action. [ am
employed in the County of San Francisco, State of California. My business address is Four
Embarcadero Center, 17th Floor, San Francisco, CA 94111-4109.
On March 12, 2015, I served true copies of the following document(s) described as:
NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
on the interested parties in this action as follows:
K. David Fisher
3D Oil&Grease LLC
74 Kelloch Avenue
San Francisco, CA 94134
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the firm's practice
for collecting and processing correspondence for mailing. On the same day that the
correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on March 12, 2015, at San Francisco,
-3- Case No. CGC-13-535864
SMRH:436722637.1 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
Preview
ORIGINAL wn oO wm NO SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations RONALD J. HOLLAND, Cal. Bar No. 148687 BABAK YOUSEFZADEH, Cal. Bar No. 235974 DORNA MOINI, Cal. Bar No, 287115 Four Embarcadero Center, 17" Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Attorneys for Plaintiff BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/13/2015 Clerk of the Court BY:ANNIE PASCUAL Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, v. K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. Case No. CGC-13-535864 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Complaint Filed: December 3, 2013] -l- Case No. CGC-13-535864 SMRH:436722637.1 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on March 12, 2015, the above-entitled Court duly entered an Order Granting Plaintiff's Motion for Summary Judgment. Said order is attached hereto as “Exhibit 1” and incorporated herein by reference. Dated: March 12, 2015 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By a ONALD J. HOLLAND BABYK YOUSEFZADEH ORNA MOINI Attorneys for Plaintiff BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, -2- Case No, CGC-13-535864 SMRH-436722637.1 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTEXHIBIT 1NY DA WB wW KN SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations RONALD J, HOLLAND, Cal. Bar No. 148687 ENDORSED BABAK YOUSEFZADEH, Cal. Bar No. 235974 suberiol cdots ea: DORNA MOINI, Cal. Bar No, 287115 County f San Francisco Four Embarcadero Center, 17" Floor San a California 94111-4109 MAR 122015 Telephone: 415.434.9100 Facsimile: 415.434.3947 CLERK OF THE COURT Email: rholland@sheppardmullin.com By: SEAN KANE byousefzadeh@sheppardmullin.com Deputy Clerk dmoini@sheppardmullin.com Attorneys for Plaintiff BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, v. K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. Case No, CGC-13-535864 [RROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Date: March 12, 2015 Time: 9:30 a.m. Dept: 302 Reservation No. 121714-09 {Complaint Filed: December 3, 2013] -1- Case No. CGC-13-535864 SMRH:436715884.1 {PRUPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTCe NDA HW BF wD TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: The Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Motion”) of Plaintiff Bently Biofuels Company LLC d/b/a Bently Biofuels Collection Services, LLC (“Plaintiff”) against K. David Fisher and 3D Oil&Grease, LLC (“Defendants” or “Defendant”) came on for hearing on March 12, 2015, at 9:30 a.m., before this Court in Department 302 of this Court, the Honorable Ernest H. Goldsmith, presiding. The Court adopts its tentative ruling as follows: Granted. No opposition filed. Specifically, the Court finds that: 1. Plaintiff submitted 83 Undisputed Material Facts in support of 8 causes of action. Defendants having failed to oppose Plaintiff's Motion or any of the Undisputed Material Facts, these facts remain uncontested. Accordingly, Plaintiff has established the prima facie elements of each of its causes of action. 2. AS TO PLAINTIFF’S FIRST CAUSE OF ACTION: Plaintiff has established the Defendants violated his contractual obligations when he used the Employment Agreement and Settlement Agreement and Release for his own benefit and the benefit of 3D, and against Plaintiff's interest. Defendant’s breach of these obligations have caused harm to Plaintiff. 3. AS TO PLAINTIFF’S SECOND AND THIRD CAUSES OF ACTION: Plaintiff has established that the Defendants induced a breach of contract and tortiously interfered with contractual relations because: (a) Defendants were aware Plaintiff had both oral and written contracts with its vendors; (b) the deals Defendant Fisher made while working for Got Grease were on behalf of the Company, meaning they belonged to Got Grease; (c) Plaintiff had a contractual right to act as the exclusive service provider for its customers and Defendants engaged in various intentional acts that have disrupted these contracts or induced breach by customers; and (d) an actual breach or disruption of its contracts, and resulting damage occurred as a result of Defendants’ acts. 4. AS TO PLAINTIFF’S FOURTH CAUSE OF ACTION: Defendants engaged in tortious interference with prospective and economic advantage, a tort which is similar to interference with contractual relations, except that Plaintiff need not show a consummated binding 22- Case No, CGC-13-535864 SMRH:436715884.1 _EPROPOSEDTORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTcontract. Plaintiff established that it had economic relationships with its clients for used oil collection services, and the probability of future economic benefit from continuing those relationships. Plaintiff established that Defendants interfered with Plaintiffs economic relations by means of conversion, misappropriation of trade secrets, and Business and Professions Code § 17200 et. seq. (“Unfair Competition Law” or “UCL”). 5. AS TO PLAINTIFF’S FIFTH CAUSE OF ACTION: Defendants committed an act of conversion by wrongfully exerting dominion over Plaintiff's property in denial of or inconsistent with his rights. Plaintiff established that Defendants, knowing that the cooking oil bins placed on customer property belonged to the Plaintiff, took used cooking oil out of Plaintiff's bins. Plaintiff further established that Defendants took Plaintiff's oil containers from customer premises and exchanged them for his own, while never turning over profits made from the sale of the used oil he stole from Plaintiff's bins. As such, Plaintiff has established that Defendants’ misconduct in taking Plaintiff's used cooking oil and collection bins amount to conversion, as does his failure to return the proceeds of selling Plaintiffs used cooking oil. 6. AS TO PLAINTIFF’S SIXTH AND SEVENTH CAUSES OF ACTION: Plaintiff has established that Defendants engaged in fraud and negligent misrepresentation because Defendants concealed from Plaintiff the fact that Fisher was misrepresenting himself as a company employee in his dealings with Plaintiff's customers, and thus misled customers into believing he was associated with Plaintiff. 7. AS TO PLAINTIFF’S EIGHTH CAUSE OF ACTION: Defendants engaged in unfair business practices and unfair competition under Business and Professions Code 17200 (‘‘the UCL”). Business and Professions Code 17200 borrows violations of other laws as independently actionable under Section 17200 when committed pursuant to business activity. Plaintiff established that: (a) 3D OIL&GREASE competes with Plaintiff; and (b) Defendants intentionally and unfairly competed with Plaintiff when they converted Plaintiff's property and interfered with Plaintiff's property to prevent it from competing, misappropriated Plaintiff's trade secrets, misrepresented themselves to Plaintiff's customers, falsified used oil manifests for a truck that did -3- Case No, CGC-13-535864 SMRH:436715884.1 APROPROSEBTORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCoe NAH BF wWN Ss not have a CDFA decal so they could compete unlawfully before obtaining proper licensure, and knowingly operating without legally required licenses to gain an unfair advantage over Plaintiff. a. CONVERSION: Plaintiff established that Defendants converted Plaintiff’ s collection bins and used oil, preventing Plaintiff from transacting with its customers, unlawfully profiting from Plaintiffs customers, and unlawfully competing with Plaintiff. b. MISAPPROPRIATION OF TRADE SECRETS: Plaintiff established that Defendants misappropriated Plaintiff's trade secrets by obtaining Plaintiffs customer, contact, and price information, as well as strategies and specialized needs and preferences of customers, under circumstances that gave rise to a duty to maintain secrecy. Plaintiff has further established that Defendants used that information for his own benefit and for 3D’s benefit without Plaintiff's consent, with full knowledge that the acquisition of this information was through improper means. Lastly, Plaintiff established that Defendants used Plaintiff's proprietary information in order to solicit Plaintiffs customers and collect the oil for his and 3D’s benefit, thus gaining an unfair advantage over Plaintiff. c. MISREPRESENTATION: Plaintiff has established that Defendant engaged in unfair competition because Defendant used Plaintiff's trade name or badge, thereby deceiving and misleading Plaintiff's customers and vendors, causing them to trade with Defendant when they meant to trade with Plaintiff. d. OPERATING WITHOUT LEGALLY MANDATED LICENSES AND FALSIFIED RECORDS: Plaintiff has established that Defendant operated without legally mandated licenses and falsified records, competing with Plaintiff unlawfully. IT IS THEREFORE ORDERED that, Plaintiffs Motion is granted in its entirety and that judgment be entered forthwith in favor of Plaintiff as to the issues and claims for relief set forth above. MAR 122015 NEST H. GOLDSMITH DATED: HONORABLE ERNEST H. GOLDSMITH SAN FRANCISCO COUNTY SUPERIOR COURT “4. Case No. CGC-13-535864. SMRH:436715884.1 4PROPOSEDFORBER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCUD ew IND PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to this action. [ am employed in the County of San Francisco, State of California. My business address is Four Embarcadero Center, 17th Floor, San Francisco, CA 94111-4109. On March 12, 2015, I served true copies of the following document(s) described as: NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT on the interested parties in this action as follows: K. David Fisher 3D Oil&Grease LLC 74 Kelloch Avenue San Francisco, CA 94134 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the firm's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 12, 2015, at San Francisco, -3- Case No. CGC-13-535864 SMRH:436722637.1 NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT