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SHEPPARD,
A Limited Liability Partnership
Including Professional Corporations
RONALD J. HOLLAND, Cal. Bar No. 148687
BABAK G. 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
Email: olland@sheppardmullin.com
Attorneys for Plaintiff
ULLIN, RICHTER & HAMPTON LLP
ELECTRONICALLY
FILED
Supertor Court of Caiffornia,
County of San Francisco
12/23/2014
Clerk of the Court
BY:WILLIAM TRUPEK
Deputy Clerk
rr
byousefzadeh@sheppardmullin.com
kmatarrese@sheppardmullin.com
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
Case No. CGC-13-535864
SEPARATE STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION
Date:
Time:
Department:
Reservation No.
March 12, 2015
9:30 am
302
121714-09
SMRH:435626444.1
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTNY DA Wa
Plaintiff Bently Biofuels Company d/b/a Bently Biofuels Collection Services, LLC
(“Bently”) hereby submits the following separate statement of undisputed material facts and
supporting evidence in support of its Motion for Summary Judgment, or in the Alternative,
Summary Adjudication (“Motion”), against Defendant K. David Fisher (“Fisher”) and his
company 3D Oil&Grease (“3D”) (collectively “Defendants”). Plaintiff asserts that the following
facts are material to this action, that there is no genuine issue as to these facts, and that Plaintiff is
therefore entitled to summary judgment.
ISSUE ONE
Plaintiff succeeds on its first cause of action for Breach of Contract based on the Severance
Agreement because Defendant violated his contractual obligations under the Severance Agreement
when he used Bently’s property, confidential information and trade secrets 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.
No. | MovincG Party’s UNDISPUTED MATERIAL FACTS ‘SPONSE
AND SUPPORTING EVIDENCE
1, Fisher was employed by Got Grease, LLC as a truck
driver prior to being employed by Bently.
Deposition of K. David Fisher (“Fisher Depo.”)
31:2-7 (The Fisher Depo. is an exhibit to the
Declaration of Dorna Moini (“Moini Decl.”).
Case No. CGC-13-535864 -l-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTa BW ON
2. Bently purchased Got Grease’s business assets
pursuant to an Asset Purchase Agreement, through
which Bently acquired Got Grease’s goodwill,
customer lists, customer accounts, contract rights,
agreements, and proprietary data.
Fisher Depo. 84:18-25; Declaration of Brady (“Frey
Dec.”) J 3, 10-11, Ex. A, Asset Purchase Agreement,
Section 1.
3. Under the Asset Purchase Agreement, all assets,
customers, agreements, and goodwill of the Got
Grease business now belong to Bently.
Frey Dec., 4 3, Ex. A, Asset Purchase Agreement,
Section 1.
4, At the end of his employment with Got Grease,
Fisher signed a Settlement Agreement and Release
with Got Grease, through Got Grease’s former
owners, in which he agreed both that (1) he would
return all property and information that belongs to
the Company, including but not limited to
information about the Company’s practices,
procedures, trade secrets, customer lists, or product
marketing and (2) would not act in any manner that
might damage the other party.
Fisher Depo., Exhibit 4, Severance Agreement; see
also Fisher Depo. 144:2-6.
Case No. CGC-13-535864 -2-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTFisher’s job duties with Got Grease, and then at
Bently, involved serving Got Grease’s customers in
the Bay Area, including collecting used cooking oil
rom them and sales, promotions and management.
Fisher Depo. 31:14-17; 32:13-19; 33:10-34:6.
He also entered into collection agreements with
customers on behalf of Got Grease and negotiated
rates with customers. Fisher Depo. 45:7-14, 280:4-
4.
Got Grease dedicated a significant amount of time
and resources to compiling its customer lists,
procedures and rates over a period of several years.
Pekarek Dec., § 2-5; Luri Dec., 4 8; Fisher Depo.
55:3-10.
The Company ha: full-time personnel whose
primary job it was to identify new customers and
manage existing accounts and developed various
methods to identify potential customers and whether
they were they type of restaurant that would generate
consistent used cooking oil needs, such as
developing a method to review new restaurants’
menus online in order to determine whether the
restaurant was of a type that would generate used
cooking oil and might need Got Grease’s services.
Pekarek Dec, at §§f 2-5; Fisher Depo, 55:3-10.
Case No.
CGC-13-535864 -3-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1}| 8. Fisher became aware of Got Grease’s and Bently’s
2 customers, their contact information, their special
3 needs and preferences, their availability and pick up
4 schedules, their pricing rates with Bently. the size of
5 their bins, the amount of removal they needed, and
6 how frequently they needed their oil serviced.
7 Fisher Depo. 39:2-19; 132:7-23; 229:5-7.
819. Fisher admitted that some of this information,
9 including customer preferences, rates, and how to
0 service these customers, was not publicly available.
1 Fisher Depo. 319:2-320:9.
2\I| 10. The rates and conditions agreed upon in the oil
13 collection agreements were required to be kept
4 confidential. Frey Dec., 10, Ex. E.
Sif} 11. On September 24, 2013, Fisher established a legal
6 LLC entity, 3D, of which he is the principal and
17 founding member. Response to Request for
8 Admission No. 17; Fisher Depo. 202:19-203:16.
9H 12. Fisher has been operating an oil and grease vacuum
20 truck to collect used kitchen oil and grease with his
21 new company 3D since October 1, 2013. Fisher
22 Response to Form Interrogatory ~ General 8.2.
23 — ~
24
25
26
27
28
Case No. CGC-13-535864 ~4-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTn
oo
o 0
13. Fisher is aware that the customers he serviced while
working for Bently are Got Grease or Bently
customers and he knows of the existence of both oral
and written contracts with these customers. Fisher
Depo. 259:1-4; 259:5-260:12, Exhibit 22; Pekarek
Dec., § 9; Fisher Depo. 55:16-19.
14, Fisher continued to service Bently or Got Grease
customers after his termination, leading at least some
customers believe that he is affiliated with Bently or
Got Grease. Fisher Depo. 214:17-20.
15. In collecting used oil from Bently’s customers,
Fisher wears the same uniform that he wore at Got
Grease and with Bently, except that his current
uniform does not have the Got Grease logo. Fisher
Depo. 63:8-64:20; Depo. 265:10-266:2; Luri Dec.,
44.
16. Fisher kept the same cell phone number that he had
with Got Grease and Bently. This was the same
number that customers called him on when he was
employed by Got Grease/Bently, and through which
he helped resolve customer issues. Fisher Depo.
26:4-21; 60:10-22; 115:4-12; 223:9-224:1; 258:23-
25.
Case No, CGC-13-535864 -5-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENToo
17. Fisher sometimes takes Robert Dently, a former
Bently employee, with him to service accounts he
used to service with Got Grease or Bently, while
Dently wears a Bently uniform. Fisher Depo.
125:23-126:10, Exhibit 1, 215:25-216:6.
18. Fisher’s uniform is almost identical to the Bently
uniform. Frey Dec., {{[20-22, Exhs. J-K
19, | Fisher is aware that customers have been confused
into believing that Fisher was a Got Grease or Bently
employee. Fisher Depo. 224:20-225:6; 265:10-
266:13; Pekarek Dec. at 6; Frey Dec. at 5
20. Fisher’s activity has harmed Bently and led to
Bently’s loss of business, difficulty attracting new
customers, and difficulty retaining current customers
while having to compete with Defendants, who are
using Bently’s own customer information and
methods against it. Pckarek Dec. at {| 7-8; Delucchi
Dec. at J 5, 6; Frey Dec., 495, 7, 13, 15, 17.
Case No, CGC-13-535864 _ -6-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENToOo ff
21.
Fisher has stolen and destroyed Bently property, and
this has been documented by both Bently’s private
investigator and Bently’s own employees. Frey
Dec., J 13-14; Ex. H, Bently Biofiels Incident
Reports; See also Siragusa Dec. § 3, Exh. A,
Investigation Reports; Pekarek Dec., {| 7-8; See, e.g.,
Frey Dec., {J 15-16, Ex. I (depicting an incident on
January 21, 2014, where Fisher’s tanker truck with
3D Oil decals was seen pulling into the parking
garage at Rincon Center, and removing oil from a
large Bently container into the 3D truck with a
vacuum hose, and damaging the Bently container).
22.
In exchange for signing the severance agreement,
the Company offered Fisher a significant sum of
money, consideration which he acknowledges he
received. Fisher Depo. 146:1-20, 148:20-25.
Case No. CGC-13-535864 -7-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1j]} 23. Fisher violated his contractual obligations under the
2 Severance Agreement by using confidential
3 information about customer rates and customer
4 special needs, which he acquired during his
5 employment with Got Grease and Bently and by
gaining an unfair advantage by using the customer
lists, and information, and business strategies, that
6
7
8 have taken Bently years to develop and converting
9 them for his own use and for the profit of 3D. Fisher
0
does not have permission to use or disclose Bently’s
11 confidential information. Pekarek Dec., § 2-5; Luri
Dec., {{] 8-9; Fisher Depo. 132:7-23; 229:5-7.
2
3 |}| 24. Bently’s methods and processes for collecting
4
cooking oil have been developed and honed over
5 years, and Bently takes reasonable steps to secure
16 their confidentiality through the Employee
7 Handbook and Agreements. Luri Dec. at 4 8, Exh.
8 A; Exh. B at pp. 17-18; Delucchi Dec. at 4 3.
9 II) 25. Fisher admits that he knew both Got Grease’s and
20 Bently’s used oil pricing rates for each of their
21 customers, which gave him an advantage in beating
22 those prices and acquiring Bently’s customers.
23 Fisher Depo. 229:5-7.
24 :
25
26
27
28
Case No, CGC-13-535864 -8-
SEPARATE STATEMENT ISO PLAINTIFI'S MOTION FOR SUMMARY JUDGMENTwn
26.
Fisher knew the customers serviced by Bently, their
contact information, and their specialized needs and
preferences, all of which Fisher agreed to keep
confidential under the Severance Agreement, the
Employment Agreement, and the Employee
Handbook. Fisher Depo. 132:7-23.
27.
This data was not publicly available (a fact also
demonstrated by the customer contracts specifically
requiring that terms of the collection agreements are
to be kept confidential). Frey Dec., 10.
28.
Fisher admits that Bently’s bins were marked with
Got Grease or Bently identifications, that they were
placed on customer property, and that Bently
continues to use the Got Grease and Bently bins at
the same locations on customer premises. Fisher
Depo. 68:22-25; 70:19-71:21; 123:5-10.
29.
Fisher further admits that his company “3D.
Oil&Grease collected used cooking oil ... stored in
collection bins or containers with GOT GREASE or
BENTLY logos on them.” Response to Request for
Admission No. 14.
ISSUE TWO
Plaintiff succeeds on its first cause of action for Breach of Contract based on the
Employment Agreement because Defendant violated his contractual obligations under the
Employment Agreement when he used Bently’s property, confidential information and trade
secrets 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.
Case No, CGC-13-535864 -9-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTNo.
MOVING PARTY’S UNDISPUTED MATERIAL FACTS RESPONSE
AND SUPPORTING EVIDENCE
30.
Plaintiff incorporates Fact Nos. 1-3, 5-21, 24-25, 27-
29.
(See evidence in support of Fact Nos. 1-3, 5-21,
24-25, 27-29).
31.
On August 30, 2013, Fisher signed an Employment
Agreement, in which he agreed (1) not to disclose
Bently’s proprietary or confidential information, (2)
to abide by all Company policies, including those in
the Employee Handbook, and (3) that he would not
rivately use, misappropriate, or destroy Company
property. Fisher Depo. 129:8-130:5, Exhibit 2,
Employment Agreement; Luri Dec., 43, Exh. A.
32.
n exchange Bently offered employment to Fisher as
a Truck Driver with a starting rate of $21.50 per
our in exchange for lisher’s agreement to abide by
Bently’s policies and procedures, including an
express employment agreement not to disclose
Bently’s confidential or proprietary information,
“including but not limited to customer lists,
procedures, software, documents, designs, materials
and products. Fisher Depo. 128:15-19; 130:3-19,
Exhibit 2.
Case No.
CGC-13-535864 -10-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCo OD Gm ON
33. Fisher also agreed that all intellectual property,
including “trade secrets, techniques and processes
whether or not patentable, made or conceived either
solely or in conjunction with others during the
period of [his] employment” are the sole property of
Bently. Fisher Depo. 129:8-130:5, Exhibit 2,
Employment Agreement; Luri Dec., §j 3, Exh. A.
34, Bently employees with access to confidential
information are required to sign such agreements as
Bently relies on this information to run its business,
and secks to protect its processes, rates, and the
special needs of each of its customers from
disclosure. Luri Dec., § 3, Exh. A.
35. Bently’s Employee Handbook also specifically
required Fisher to keep Bently’s confidential
information private and not to “use confidential
information for unethical or illegal advantage,”
including sources of supply, pricing data, marketing
data and strategies, methods, processes and
techniques. Fisher Depo. 135:18-136:23, Exhibit 3,
Employee Handbook; Luri Dec., 3, Exh. B.
Case No. CGC-13-535864 -l1-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTDn wns
36.
The Employment Agreement states that “all work
materials, furniture equipment, supplies, parts,
products, telephones and vehicles are for the sole use
and operation of the Company and that any private
use, abuse, misappropriation or destruction” of
Company property is prohibited. Fisher Depo,
Exhibit 2, Employment Agreement; Luri Dec., { 3,
Exh. A.
37.
Bently supplies its customers with on-site collection
containers to store used oil pending Bently’s pickup
of the oil, and these containers, and all of their
contents are the property of Bently under the
Collection Agreements. Frey Dec., { 11, Ex. F.
38.
Under the Employment Agreement, Fisher agreed
that “all intellectual property such as inventions,
formulas, trade secrets, techniques and processes .. .
shall remain the sole property of Bently,” that he
would not to “private|ly] use, abuse,
misappropriat[e] or destr[oy] Company property.”
and that he would read and abide by the Employee
Handbook. Fisher Depo. Exh. 2; Fisher Response to
Form Interrogatory 200.3 (“relationship with GOT
GREASE was governed by written employment
policies”).
Case No.
CGC-13-535864 -12-
SEPARATE STATEMENT ISO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENToo em NN
39.
The Employee Handbook also specifically required
Fisher to keep Bently’s confidential information
private, including “sources of supply, pricing data,
marketing data and strategies.” Fisher Depo.
135:18-136:23, Exhibit 3, Employee Handbook.
40.
By providing Fisher with employment, Bently
substantially performed on the contract and no
further conditions were required for the contract.
Fisher Depo. 128:15-19, Exh. 2.
Al.
Defendants admit “that 3D OIL&GREASE
competes with BENTLY.” Response to Request for
Admission No. 18.
42.
Defendants falsified used oil manifests for a truck
that did not have a CDFA decal so they could
compete unlawfully before obtaining the proper
licensure. Fisher Depo. 195:11-197:14.
43.
Defendants knowingly operated without the legally
required licenses and permissions after their license
was revoked so as to get an unfair advantage over
Bently who operated under these requirements.
Fisher Depo. 274:10-275:1; 277:24-278:6.
ISSUE THREE
Plaintiff succeeds on its second and third causes of action for inducing breach of contract
and tortious interference with contractual relations, respectively, because Defendant induced a
breach of contract and tortiously interfered with Bently’s contractual relations because: Plaintiff
had agreements with its vendors and customers, Defendants were aware and/or had knowledge of
the same; Defendants engaged in various intentional acts that have disrupted these contracts or
Case No. CGC-13-535864 -13-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTfk BN
induced breach by Plaintiff's customers; an actual breach or disruption of Plaintiffs contracts
occurred; and the foregoing acts by Defendants caused damage to Plaintiff.
No.
MOvING PARTY’S UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE
RESPONSE
44.
Plaintiff incorporates Fact Nos. 1-3, 5, 11-21
(See evidence in support of Fact Nos. 1-3, 5, 11-
21, supra).!
45.
Got Grease had oral and written agreements with
their customers to provide oil collection services.
Pekarek Dec., 9; Fisher Depo. 55:16-19.
46.
Upon acquiring Got Grease, these agreements
belonged to Bently. Frey Dec., 43, Ex. A, Asset
Purchase Agreement, Section 1.
47.
Bently entered into exclusive collection services
agreements with many of its customers for specified
periods of time. Frey Dec., § 11, Ex. F.
48.
Some contracts were entered into “for an initial term
of 12 months [and] shall automatically renew for
another 12 months unless either party notifies the
other by Certified U.S. Mail not less than 60 days
prior to the expiration of the then-existing term of its
intention not to renew.” Frey Decl, § 11, Ex. F,
Exclusive Collection Agreements.
' To prevent unnecessary collection of pages in the Court’s file, unnecessary waste of paper and
unnecessary waste of judicial resources, Bently does not repeat each of the undisputed material
facts already listed above, but rather incorporates them by reference.
Case No. CGC-13-535864 -14-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT14
ND
49.
Other contracts state that they “shall be in place for
two years and will renew on a month-to-month basis
after the two-year term. Frey Decl,.§ 10, Ex. E,
Two-Year Oil Collection Agreements.
50.
Bently had written contracts with several customers,
which were and are currently in effect. Frey Dec.,
13, Ex. H.
Sl.
Fisher admits that most of Got Grease and Bently’s
customers were under some form of oral or written
contract. Fisher Depo. 280:10-24.
52.
Fisher kept his phone number, which is the number
that customers called him on when he was employed
by Got Grease and through which he helped resolve
customer issues. Fisher Depo. 26:4-21; 115:4-12;
223:9-224:1.
53.
From October 2013 to present, Defendants have
stolen oil out of the Company’s collection bins from
at least twenty-nine of Bently’s customers and often
misrepresented himself to those customers as an
agent or employee of the Company. Luri Dec., {{ 6;
Frey Dec., § 13.
54.
On October 6, 2013, Fisher was observed stealing
used oil from a Got Grease collection bin at Bently
customer, Limon’s property. Frey Dec., § 5, Exh. B,
Police Report.
Case No, CGC-13-535864 -15-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1]]| 55. In October 2013, Fisher wore a Got Grease uniform,
2 represented himself as a Got Grease employee to
3 restaurant employees at another restaurant, Tempest,
4 and subsequently stole used oil from Bently
5 collection bins. Pekarek Dec. at § 6; Luri Dec. at |
6; Frey Dec. at f{ 5, 7, 9, Exhs. B-C, E-F; Clutter
Dec. at § 6.
6
7
8 |] 56. On November 4 or 5, 2013, Fisher stole cooking oil
9 out of Bently’s containers located at three more
0
customers’ sites—Swiss Louis, Hook & Cook, and
1 Chowders—and also stole the containers themselves,
2 replacing them with 3D containers. Frey Dec. at § 7;
3 Exh. E.
1441) 57. On November 21, 2013, two 55-gallon barrels at the
15 Palace Hotel were found missing; in their place,
6 there were two 3D barrels. Frey Dec., § 13, Ex. H.
7\I| 58. On February 7, 2014, Fisher and his cousin, Robert
8 Dentley, stole the cooking oil out of Bently’s
9 containers at Limon Rotisserie, Skool Restaurant,
20 and Cha Cha Cha. Again, they also stole Bently’s
21 collection barrels from those locations and replaced
22 them with 3D barrels. Frey Dec. at § 9; Exh. F.
23 ~~
24
25
26
27
28
Case No. CGC-13-535864. -16-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT59.
On February 7, 2014, Fisher was observed picking
up grease at Bently’s customers such as Mosto and
Limon. On this day, Fisher rolled out a blue
container with a “Got Grease” logo on it from Limon
Restaurant, took the drum onto rollers and rolled the
drum to the side of their grease truck. Per the
investigation report: Fisher was with another man,
who lifted and placed the “Got Grease” drum on to a
Penske truck. Fisher then appeared to grab a hose
from the grease truck and unloaded grease into his
drum before he rolled the drum back into restaurant.
As the other man looked on, Fisher began to peel
off the “Bentley BioFuels” sticker. The other man
then took off the a 2nd “Bentley Bio Fuels” sticker
and placed the stickers in a nearby trashcan. Fisher
then placed the black 55 gallon onto the Penske box
truck and walked out of view.
Siragusa Dec., ff 3, 8-10, Ex. A, E-G.
60.
On June 15, 2014, Bently’s private investigator
again observed and documented Fisher vacuuming
grease out of a collection bin labeled with the Bently
logo. Siragusa Dec., {| 3, Exh. A, Investigator
Report, p. 55-56; Frey Dec., § 13, Ex. H.
61.
Bently’s customers have been angered by Fisher’s
actions and have called to complain about the stolen
oil. Pekarek Dec. at {{[ 4, 6,7; Delucchi Dec. at § 5.
Case No.
CGC-13-535864 -17-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1 |}} 62. Fisher was aware Bently had both oral and written
2 contracts with its vendors, establishing the existence
3 of a contract and knowledge of the contract. Fisher
4 Depo. 280:10-24 & 259:5-260:12; Exhibit 22.
5 ||| 63. | Fisher admits he “took possession of [Bently’s]
6 collection bins,” and he knew Bently would no
7 longer have the ability to collect the oil placed in its
8 bins pursuant to its contracts. See Fisher’s Response
9 to Bently’s First Set of Requests for Admission,
0 Request No. 12; Luri Dec., {J 5-6; Frey Dec., {4
1 5,7.
12||| 64. _| Fisher also admitted to sending out proposed
3 “Notices of Cancellation,” purporting to “cancel” the
4 contracts between Bently and its customers, a direct
5 attempt to interfere with Bently’s active contracts.
6 Fisher Depo. 262:3-18.
7
8 ISSUE FOUR
19 Plaintiff succeeds on its fourth cause of action for tortious interference with prospective
0 economic advantage because Defendant interfered with Plaintiff's economic relations by means of
4 conversion, misappropriation of trade secrets, and violations of Business and Professions Code §
» 17200 et. seq. prohibiting unfair and unlawful competition and business practices.
23 ||| No, | MOvING PARTY’s UNDISPUTED MATERIAL FACTS RESPONSE
24 AND SUPPORTING EVIDENCE
25 ||| 65. Plaintiff incorporates Fact Nos. 1-3, 5, 11-21, 45-64
26 (See evidence in support of Fact Nos, 1-3, 5, 11-
27 21, 45-64, supra).
28
Case No. CGC-13-535864 -18-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTISSUE FIVE
Plaintiff succeeds on its fifth cause of action for conversion because Defendant committed
multiple acts of conversion by wrongfully exerting dominion over Plaintiff's used oil and oil
collection bins by, inter alia, taking used cooking oil out of Plaintiff's bins, stealing or moving
Plaintiff's bins, and never turning over profits made from the sale of the used oil he stole from
Plaintiff's bins.
No.
MOVING PaRTY’S UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE
RESPONSE
66.
Plaintiff incorporates Fact Nos. 1-3, 11-12, 28-29,
45-46, 50. 52-60, 63
(See evidence in support of Fact Nos. 1-3, 11-12,
28-29, 45-46, 50. 52-60, 63, supra).
67.
Under the terms of the Collection Agreements with
customers, Bently’s containers, and any used oil
placed inside of Bently’s containers, rightfully
belong to Bently. Frey Dec., § 11, Ex. F.
68.
Fisher admitted that “3D Oil&Grease collected used
cooking oil, which its customers had stored in
collection bins or containers with GOT GREASE or
BENTLY logos on them” and that he swapped out
Bently collection bins for his own 3D collection
bins. Response to Request for Admission No. 14.
Fisher Depo, 221:23-222:1.
69.
Fisher abandoned Bently’s bins behind an industrial
complex that does not belong to Bently. Fisher
Depo. 288:7-17.
Case No.
CGC-13-535864 -19-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT70.
Fisher never informed Bently what he did with the
collection bins, nor did Fisher turn over the profits
he made from the sale of the used oil he stole from
Bently’s bins. Pekarek Dec., § 7-8.
conceai
ISSUE SIX
Plaintiff succeeds on its sixth cause of action for fraud and concealment because Defendant
ed from Plaintiff the fact that he was representing himself to be a company employee in his
interactions with Plaintiffs customers, and thus misled customers into believing he was associated
with Plaintiff when he in fact was not. Such misrepresentations and concealment caused damages
to Plaintiff.
No.
MOVING PARTY’S UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE
RESPONSE
71.
Plaintiff incorporates Fact Nos. 1-3, 11-21, 51-52
(See evidence in support of Fact Nos. 1-3, 11-21,
51-52, supra).
Defen
ISSUE SEVEN
associated with Plaintiff.
Plaintiff succeeds on its seventh cause of action for negligent misrepresentation because
ant concealed from Plaintiff the fact that he was pretending to be a company employee in
is representations to Plaintiffs customers, and thus misled customers into believing he was
No. | MovinG Party’s UNDISPUTED MATERIAL FACTS RESPONSE
AND SUPPORTING EVIDENCE
72. Plaintiff incorporates Fact Nos. 1-3, 11-21, 51-52
(See evidence in support of Fact Nos. 1-3, 11-21,
51-52, supra).
Case No. CGC-13-535864 -20-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTISSUE EIGHT
Plaintiff succeeds on its eighth cause of action for Violation of Business and Professions
Code Sections 17200, et. seq. because Defendants engaged in unfair and unlawful business
practices and unfair competition when they: converted Plaintiffs property and interfered with
Plaintiff's property to prevent it from competing; misappropriated Plaintiffs trade secrets;
misrepresented themselves to Plaintiff's customers; falsified used oil manifests for a truck that did
not have a CDFA decal so they could compete unfairly and unlawfully with Plaintiff before
obtaining proper licensure; and knowingly operating without legally required licenses to gain an
unfair advantage over Plaintiff.
No.
MOVING PARTY’S UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE
RESPONSE
2B.
Plaintiff incorporates Fact Nos. 1-72.
(See evidence in support of Fact Nos. 1-72, supra).
74.
Fisher “admits that 3D OIL&GREASE competes
with BENTLY.” Response to Request for
Admission No. 18.
75.
Fisher began used oil collection services operations
as early as October 6, 2013, before having obtained
the proper licensure from the CDFA. Fisher Depo.
254:16-257:1; 277:24-278:6; 270:1-271:4.
76.
3D and Fisher’s truck did not have the proper
licenses or decals from the CFDA to provide used oil
collection until October 29, 2013, almost a month
after he had already begun unlawfully providing
such services. Fisher Depo. 182:3-5, 195:11-196:8;
197:9-11.
Case No.
CGC-13-535864 -21-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.oo
77.
The California Department of Food and Agriculture
(“CDFA”), which licenses entities engaged in the oil
collection business, recently labeled Fisher a
“violator” of the Food and Agriculture Code and
refused to renew his license to collect used cooking
oil because of his unlawful activities. Luri Dec. at {
7, Exh. C at 4.
78.
This means that Fisher has been operating
unlawfully, and thus competing against Bently
unlawfully, for the last 10 months. Luri Dec., 7,
Ex. D.
79.
Fisher admitted that he transferred oil to Hanford
Commodities with a falsified license from another
company, KB Grease, because he and 3D did not
have the proper licensing or decal. Fisher Depo.
276:17-278:6.
80.
Fisher admitted that collecting used oil without the
proper license was unlawful, but he did not wait to
get this license (and operated without legal
authority) because he did not want to lose customers.
Fisher Depo. 254:25-255:4, 270:13-271:4, 278:20-
279:4.
81.
Fisher has been operating without a license since
February 2014. Luri Dec., 7, Ex. D.
Case No. CGC-13-535864 -22-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCO Mm IN Dw
82. Fisher also transferred used oil in a truck without
the proper registrations or decals, in violation of the
law. Fisher Depo, 277:24-278:6, 278:25-279:4.
83. Fisher falsified the legally required manifest (the
record of the transfer of used oil), as he did not have
the proper vehicle registration and decals to do so.
Fisher Depo., 168:19-21, 169:4-6, 195:11-197:14.
Dated: December 19, 2014
Case No. CGC-13-535864
Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
RONALD J. HOLLAND
BYBAK YOUSEFZADEH
DORNA MOINI
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Attorneys for Bently Biofuels Collection Services
-23-
SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Preview
BR BW ON nN a SHEPPARD, A Limited Liability Partnership Including Professional Corporations RONALD J. HOLLAND, Cal. Bar No. 148687 BABAK G. 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 Email: olland@sheppardmullin.com Attorneys for Plaintiff ULLIN, RICHTER & HAMPTON LLP ELECTRONICALLY FILED Supertor Court of Caiffornia, County of San Francisco 12/23/2014 Clerk of the Court BY:WILLIAM TRUPEK Deputy Clerk rr byousefzadeh@sheppardmullin.com kmatarrese@sheppardmullin.com 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 Case No. CGC-13-535864 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: Time: Department: Reservation No. March 12, 2015 9:30 am 302 121714-09 SMRH:435626444.1 SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTNY DA Wa Plaintiff Bently Biofuels Company d/b/a Bently Biofuels Collection Services, LLC (“Bently”) hereby submits the following separate statement of undisputed material facts and supporting evidence in support of its Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Motion”), against Defendant K. David Fisher (“Fisher”) and his company 3D Oil&Grease (“3D”) (collectively “Defendants”). Plaintiff asserts that the following facts are material to this action, that there is no genuine issue as to these facts, and that Plaintiff is therefore entitled to summary judgment. ISSUE ONE Plaintiff succeeds on its first cause of action for Breach of Contract based on the Severance Agreement because Defendant violated his contractual obligations under the Severance Agreement when he used Bently’s property, confidential information and trade secrets 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. No. | MovincG Party’s UNDISPUTED MATERIAL FACTS ‘SPONSE AND SUPPORTING EVIDENCE 1, Fisher was employed by Got Grease, LLC as a truck driver prior to being employed by Bently. Deposition of K. David Fisher (“Fisher Depo.”) 31:2-7 (The Fisher Depo. is an exhibit to the Declaration of Dorna Moini (“Moini Decl.”). Case No. CGC-13-535864 -l- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTa BW ON 2. Bently purchased Got Grease’s business assets pursuant to an Asset Purchase Agreement, through which Bently acquired Got Grease’s goodwill, customer lists, customer accounts, contract rights, agreements, and proprietary data. Fisher Depo. 84:18-25; Declaration of Brady (“Frey Dec.”) J 3, 10-11, Ex. A, Asset Purchase Agreement, Section 1. 3. Under the Asset Purchase Agreement, all assets, customers, agreements, and goodwill of the Got Grease business now belong to Bently. Frey Dec., 4 3, Ex. A, Asset Purchase Agreement, Section 1. 4, At the end of his employment with Got Grease, Fisher signed a Settlement Agreement and Release with Got Grease, through Got Grease’s former owners, in which he agreed both that (1) he would return all property and information that belongs to the Company, including but not limited to information about the Company’s practices, procedures, trade secrets, customer lists, or product marketing and (2) would not act in any manner that might damage the other party. Fisher Depo., Exhibit 4, Severance Agreement; see also Fisher Depo. 144:2-6. Case No. CGC-13-535864 -2- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTFisher’s job duties with Got Grease, and then at Bently, involved serving Got Grease’s customers in the Bay Area, including collecting used cooking oil rom them and sales, promotions and management. Fisher Depo. 31:14-17; 32:13-19; 33:10-34:6. He also entered into collection agreements with customers on behalf of Got Grease and negotiated rates with customers. Fisher Depo. 45:7-14, 280:4- 4. Got Grease dedicated a significant amount of time and resources to compiling its customer lists, procedures and rates over a period of several years. Pekarek Dec., § 2-5; Luri Dec., 4 8; Fisher Depo. 55:3-10. The Company ha: full-time personnel whose primary job it was to identify new customers and manage existing accounts and developed various methods to identify potential customers and whether they were they type of restaurant that would generate consistent used cooking oil needs, such as developing a method to review new restaurants’ menus online in order to determine whether the restaurant was of a type that would generate used cooking oil and might need Got Grease’s services. Pekarek Dec, at §§f 2-5; Fisher Depo, 55:3-10. Case No. CGC-13-535864 -3- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1}| 8. Fisher became aware of Got Grease’s and Bently’s 2 customers, their contact information, their special 3 needs and preferences, their availability and pick up 4 schedules, their pricing rates with Bently. the size of 5 their bins, the amount of removal they needed, and 6 how frequently they needed their oil serviced. 7 Fisher Depo. 39:2-19; 132:7-23; 229:5-7. 819. Fisher admitted that some of this information, 9 including customer preferences, rates, and how to 0 service these customers, was not publicly available. 1 Fisher Depo. 319:2-320:9. 2\I| 10. The rates and conditions agreed upon in the oil 13 collection agreements were required to be kept 4 confidential. Frey Dec., 10, Ex. E. Sif} 11. On September 24, 2013, Fisher established a legal 6 LLC entity, 3D, of which he is the principal and 17 founding member. Response to Request for 8 Admission No. 17; Fisher Depo. 202:19-203:16. 9H 12. Fisher has been operating an oil and grease vacuum 20 truck to collect used kitchen oil and grease with his 21 new company 3D since October 1, 2013. Fisher 22 Response to Form Interrogatory ~ General 8.2. 23 — ~ 24 25 26 27 28 Case No. CGC-13-535864 ~4- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTn oo o 0 13. Fisher is aware that the customers he serviced while working for Bently are Got Grease or Bently customers and he knows of the existence of both oral and written contracts with these customers. Fisher Depo. 259:1-4; 259:5-260:12, Exhibit 22; Pekarek Dec., § 9; Fisher Depo. 55:16-19. 14, Fisher continued to service Bently or Got Grease customers after his termination, leading at least some customers believe that he is affiliated with Bently or Got Grease. Fisher Depo. 214:17-20. 15. In collecting used oil from Bently’s customers, Fisher wears the same uniform that he wore at Got Grease and with Bently, except that his current uniform does not have the Got Grease logo. Fisher Depo. 63:8-64:20; Depo. 265:10-266:2; Luri Dec., 44. 16. Fisher kept the same cell phone number that he had with Got Grease and Bently. This was the same number that customers called him on when he was employed by Got Grease/Bently, and through which he helped resolve customer issues. Fisher Depo. 26:4-21; 60:10-22; 115:4-12; 223:9-224:1; 258:23- 25. Case No, CGC-13-535864 -5- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENToo 17. Fisher sometimes takes Robert Dently, a former Bently employee, with him to service accounts he used to service with Got Grease or Bently, while Dently wears a Bently uniform. Fisher Depo. 125:23-126:10, Exhibit 1, 215:25-216:6. 18. Fisher’s uniform is almost identical to the Bently uniform. Frey Dec., {{[20-22, Exhs. J-K 19, | Fisher is aware that customers have been confused into believing that Fisher was a Got Grease or Bently employee. Fisher Depo. 224:20-225:6; 265:10- 266:13; Pekarek Dec. at 6; Frey Dec. at 5 20. Fisher’s activity has harmed Bently and led to Bently’s loss of business, difficulty attracting new customers, and difficulty retaining current customers while having to compete with Defendants, who are using Bently’s own customer information and methods against it. Pckarek Dec. at {| 7-8; Delucchi Dec. at J 5, 6; Frey Dec., 495, 7, 13, 15, 17. Case No, CGC-13-535864 _ -6- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENToOo ff 21. Fisher has stolen and destroyed Bently property, and this has been documented by both Bently’s private investigator and Bently’s own employees. Frey Dec., J 13-14; Ex. H, Bently Biofiels Incident Reports; See also Siragusa Dec. § 3, Exh. A, Investigation Reports; Pekarek Dec., {| 7-8; See, e.g., Frey Dec., {J 15-16, Ex. I (depicting an incident on January 21, 2014, where Fisher’s tanker truck with 3D Oil decals was seen pulling into the parking garage at Rincon Center, and removing oil from a large Bently container into the 3D truck with a vacuum hose, and damaging the Bently container). 22. In exchange for signing the severance agreement, the Company offered Fisher a significant sum of money, consideration which he acknowledges he received. Fisher Depo. 146:1-20, 148:20-25. Case No. CGC-13-535864 -7- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1j]} 23. Fisher violated his contractual obligations under the 2 Severance Agreement by using confidential 3 information about customer rates and customer 4 special needs, which he acquired during his 5 employment with Got Grease and Bently and by gaining an unfair advantage by using the customer lists, and information, and business strategies, that 6 7 8 have taken Bently years to develop and converting 9 them for his own use and for the profit of 3D. Fisher 0 does not have permission to use or disclose Bently’s 11 confidential information. Pekarek Dec., § 2-5; Luri Dec., {{] 8-9; Fisher Depo. 132:7-23; 229:5-7. 2 3 |}| 24. Bently’s methods and processes for collecting 4 cooking oil have been developed and honed over 5 years, and Bently takes reasonable steps to secure 16 their confidentiality through the Employee 7 Handbook and Agreements. Luri Dec. at 4 8, Exh. 8 A; Exh. B at pp. 17-18; Delucchi Dec. at 4 3. 9 II) 25. Fisher admits that he knew both Got Grease’s and 20 Bently’s used oil pricing rates for each of their 21 customers, which gave him an advantage in beating 22 those prices and acquiring Bently’s customers. 23 Fisher Depo. 229:5-7. 24 : 25 26 27 28 Case No, CGC-13-535864 -8- SEPARATE STATEMENT ISO PLAINTIFI'S MOTION FOR SUMMARY JUDGMENTwn 26. Fisher knew the customers serviced by Bently, their contact information, and their specialized needs and preferences, all of which Fisher agreed to keep confidential under the Severance Agreement, the Employment Agreement, and the Employee Handbook. Fisher Depo. 132:7-23. 27. This data was not publicly available (a fact also demonstrated by the customer contracts specifically requiring that terms of the collection agreements are to be kept confidential). Frey Dec., 10. 28. Fisher admits that Bently’s bins were marked with Got Grease or Bently identifications, that they were placed on customer property, and that Bently continues to use the Got Grease and Bently bins at the same locations on customer premises. Fisher Depo. 68:22-25; 70:19-71:21; 123:5-10. 29. Fisher further admits that his company “3D. Oil&Grease collected used cooking oil ... stored in collection bins or containers with GOT GREASE or BENTLY logos on them.” Response to Request for Admission No. 14. ISSUE TWO Plaintiff succeeds on its first cause of action for Breach of Contract based on the Employment Agreement because Defendant violated his contractual obligations under the Employment Agreement when he used Bently’s property, confidential information and trade secrets 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. Case No, CGC-13-535864 -9- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTNo. MOVING PARTY’S UNDISPUTED MATERIAL FACTS RESPONSE AND SUPPORTING EVIDENCE 30. Plaintiff incorporates Fact Nos. 1-3, 5-21, 24-25, 27- 29. (See evidence in support of Fact Nos. 1-3, 5-21, 24-25, 27-29). 31. On August 30, 2013, Fisher signed an Employment Agreement, in which he agreed (1) not to disclose Bently’s proprietary or confidential information, (2) to abide by all Company policies, including those in the Employee Handbook, and (3) that he would not rivately use, misappropriate, or destroy Company property. Fisher Depo. 129:8-130:5, Exhibit 2, Employment Agreement; Luri Dec., 43, Exh. A. 32. n exchange Bently offered employment to Fisher as a Truck Driver with a starting rate of $21.50 per our in exchange for lisher’s agreement to abide by Bently’s policies and procedures, including an express employment agreement not to disclose Bently’s confidential or proprietary information, “including but not limited to customer lists, procedures, software, documents, designs, materials and products. Fisher Depo. 128:15-19; 130:3-19, Exhibit 2. Case No. CGC-13-535864 -10- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCo OD Gm ON 33. Fisher also agreed that all intellectual property, including “trade secrets, techniques and processes whether or not patentable, made or conceived either solely or in conjunction with others during the period of [his] employment” are the sole property of Bently. Fisher Depo. 129:8-130:5, Exhibit 2, Employment Agreement; Luri Dec., §j 3, Exh. A. 34, Bently employees with access to confidential information are required to sign such agreements as Bently relies on this information to run its business, and secks to protect its processes, rates, and the special needs of each of its customers from disclosure. Luri Dec., § 3, Exh. A. 35. Bently’s Employee Handbook also specifically required Fisher to keep Bently’s confidential information private and not to “use confidential information for unethical or illegal advantage,” including sources of supply, pricing data, marketing data and strategies, methods, processes and techniques. Fisher Depo. 135:18-136:23, Exhibit 3, Employee Handbook; Luri Dec., 3, Exh. B. Case No. CGC-13-535864 -l1- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTDn wns 36. The Employment Agreement states that “all work materials, furniture equipment, supplies, parts, products, telephones and vehicles are for the sole use and operation of the Company and that any private use, abuse, misappropriation or destruction” of Company property is prohibited. Fisher Depo, Exhibit 2, Employment Agreement; Luri Dec., { 3, Exh. A. 37. Bently supplies its customers with on-site collection containers to store used oil pending Bently’s pickup of the oil, and these containers, and all of their contents are the property of Bently under the Collection Agreements. Frey Dec., { 11, Ex. F. 38. Under the Employment Agreement, Fisher agreed that “all intellectual property such as inventions, formulas, trade secrets, techniques and processes .. . shall remain the sole property of Bently,” that he would not to “private|ly] use, abuse, misappropriat[e] or destr[oy] Company property.” and that he would read and abide by the Employee Handbook. Fisher Depo. Exh. 2; Fisher Response to Form Interrogatory 200.3 (“relationship with GOT GREASE was governed by written employment policies”). Case No. CGC-13-535864 -12- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENToo em NN 39. The Employee Handbook also specifically required Fisher to keep Bently’s confidential information private, including “sources of supply, pricing data, marketing data and strategies.” Fisher Depo. 135:18-136:23, Exhibit 3, Employee Handbook. 40. By providing Fisher with employment, Bently substantially performed on the contract and no further conditions were required for the contract. Fisher Depo. 128:15-19, Exh. 2. Al. Defendants admit “that 3D OIL&GREASE competes with BENTLY.” Response to Request for Admission No. 18. 42. Defendants falsified used oil manifests for a truck that did not have a CDFA decal so they could compete unlawfully before obtaining the proper licensure. Fisher Depo. 195:11-197:14. 43. Defendants knowingly operated without the legally required licenses and permissions after their license was revoked so as to get an unfair advantage over Bently who operated under these requirements. Fisher Depo. 274:10-275:1; 277:24-278:6. ISSUE THREE Plaintiff succeeds on its second and third causes of action for inducing breach of contract and tortious interference with contractual relations, respectively, because Defendant induced a breach of contract and tortiously interfered with Bently’s contractual relations because: Plaintiff had agreements with its vendors and customers, Defendants were aware and/or had knowledge of the same; Defendants engaged in various intentional acts that have disrupted these contracts or Case No. CGC-13-535864 -13- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTfk BN induced breach by Plaintiff's customers; an actual breach or disruption of Plaintiffs contracts occurred; and the foregoing acts by Defendants caused damage to Plaintiff. No. MOvING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONSE 44. Plaintiff incorporates Fact Nos. 1-3, 5, 11-21 (See evidence in support of Fact Nos. 1-3, 5, 11- 21, supra).! 45. Got Grease had oral and written agreements with their customers to provide oil collection services. Pekarek Dec., 9; Fisher Depo. 55:16-19. 46. Upon acquiring Got Grease, these agreements belonged to Bently. Frey Dec., 43, Ex. A, Asset Purchase Agreement, Section 1. 47. Bently entered into exclusive collection services agreements with many of its customers for specified periods of time. Frey Dec., § 11, Ex. F. 48. Some contracts were entered into “for an initial term of 12 months [and] shall automatically renew for another 12 months unless either party notifies the other by Certified U.S. Mail not less than 60 days prior to the expiration of the then-existing term of its intention not to renew.” Frey Decl, § 11, Ex. F, Exclusive Collection Agreements. ' To prevent unnecessary collection of pages in the Court’s file, unnecessary waste of paper and unnecessary waste of judicial resources, Bently does not repeat each of the undisputed material facts already listed above, but rather incorporates them by reference. Case No. CGC-13-535864 -14- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT14 ND 49. Other contracts state that they “shall be in place for two years and will renew on a month-to-month basis after the two-year term. Frey Decl,.§ 10, Ex. E, Two-Year Oil Collection Agreements. 50. Bently had written contracts with several customers, which were and are currently in effect. Frey Dec., 13, Ex. H. Sl. Fisher admits that most of Got Grease and Bently’s customers were under some form of oral or written contract. Fisher Depo. 280:10-24. 52. Fisher kept his phone number, which is the number that customers called him on when he was employed by Got Grease and through which he helped resolve customer issues. Fisher Depo. 26:4-21; 115:4-12; 223:9-224:1. 53. From October 2013 to present, Defendants have stolen oil out of the Company’s collection bins from at least twenty-nine of Bently’s customers and often misrepresented himself to those customers as an agent or employee of the Company. Luri Dec., {{ 6; Frey Dec., § 13. 54. On October 6, 2013, Fisher was observed stealing used oil from a Got Grease collection bin at Bently customer, Limon’s property. Frey Dec., § 5, Exh. B, Police Report. Case No, CGC-13-535864 -15- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1]]| 55. In October 2013, Fisher wore a Got Grease uniform, 2 represented himself as a Got Grease employee to 3 restaurant employees at another restaurant, Tempest, 4 and subsequently stole used oil from Bently 5 collection bins. Pekarek Dec. at § 6; Luri Dec. at | 6; Frey Dec. at f{ 5, 7, 9, Exhs. B-C, E-F; Clutter Dec. at § 6. 6 7 8 |] 56. On November 4 or 5, 2013, Fisher stole cooking oil 9 out of Bently’s containers located at three more 0 customers’ sites—Swiss Louis, Hook & Cook, and 1 Chowders—and also stole the containers themselves, 2 replacing them with 3D containers. Frey Dec. at § 7; 3 Exh. E. 1441) 57. On November 21, 2013, two 55-gallon barrels at the 15 Palace Hotel were found missing; in their place, 6 there were two 3D barrels. Frey Dec., § 13, Ex. H. 7\I| 58. On February 7, 2014, Fisher and his cousin, Robert 8 Dentley, stole the cooking oil out of Bently’s 9 containers at Limon Rotisserie, Skool Restaurant, 20 and Cha Cha Cha. Again, they also stole Bently’s 21 collection barrels from those locations and replaced 22 them with 3D barrels. Frey Dec. at § 9; Exh. F. 23 ~~ 24 25 26 27 28 Case No. CGC-13-535864. -16- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT59. On February 7, 2014, Fisher was observed picking up grease at Bently’s customers such as Mosto and Limon. On this day, Fisher rolled out a blue container with a “Got Grease” logo on it from Limon Restaurant, took the drum onto rollers and rolled the drum to the side of their grease truck. Per the investigation report: Fisher was with another man, who lifted and placed the “Got Grease” drum on to a Penske truck. Fisher then appeared to grab a hose from the grease truck and unloaded grease into his drum before he rolled the drum back into restaurant. As the other man looked on, Fisher began to peel off the “Bentley BioFuels” sticker. The other man then took off the a 2nd “Bentley Bio Fuels” sticker and placed the stickers in a nearby trashcan. Fisher then placed the black 55 gallon onto the Penske box truck and walked out of view. Siragusa Dec., ff 3, 8-10, Ex. A, E-G. 60. On June 15, 2014, Bently’s private investigator again observed and documented Fisher vacuuming grease out of a collection bin labeled with the Bently logo. Siragusa Dec., {| 3, Exh. A, Investigator Report, p. 55-56; Frey Dec., § 13, Ex. H. 61. Bently’s customers have been angered by Fisher’s actions and have called to complain about the stolen oil. Pekarek Dec. at {{[ 4, 6,7; Delucchi Dec. at § 5. Case No. CGC-13-535864 -17- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1 |}} 62. Fisher was aware Bently had both oral and written 2 contracts with its vendors, establishing the existence 3 of a contract and knowledge of the contract. Fisher 4 Depo. 280:10-24 & 259:5-260:12; Exhibit 22. 5 ||| 63. | Fisher admits he “took possession of [Bently’s] 6 collection bins,” and he knew Bently would no 7 longer have the ability to collect the oil placed in its 8 bins pursuant to its contracts. See Fisher’s Response 9 to Bently’s First Set of Requests for Admission, 0 Request No. 12; Luri Dec., {J 5-6; Frey Dec., {4 1 5,7. 12||| 64. _| Fisher also admitted to sending out proposed 3 “Notices of Cancellation,” purporting to “cancel” the 4 contracts between Bently and its customers, a direct 5 attempt to interfere with Bently’s active contracts. 6 Fisher Depo. 262:3-18. 7 8 ISSUE FOUR 19 Plaintiff succeeds on its fourth cause of action for tortious interference with prospective 0 economic advantage because Defendant interfered with Plaintiff's economic relations by means of 4 conversion, misappropriation of trade secrets, and violations of Business and Professions Code § » 17200 et. seq. prohibiting unfair and unlawful competition and business practices. 23 ||| No, | MOvING PARTY’s UNDISPUTED MATERIAL FACTS RESPONSE 24 AND SUPPORTING EVIDENCE 25 ||| 65. Plaintiff incorporates Fact Nos. 1-3, 5, 11-21, 45-64 26 (See evidence in support of Fact Nos, 1-3, 5, 11- 27 21, 45-64, supra). 28 Case No. CGC-13-535864 -18- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTISSUE FIVE Plaintiff succeeds on its fifth cause of action for conversion because Defendant committed multiple acts of conversion by wrongfully exerting dominion over Plaintiff's used oil and oil collection bins by, inter alia, taking used cooking oil out of Plaintiff's bins, stealing or moving Plaintiff's bins, and never turning over profits made from the sale of the used oil he stole from Plaintiff's bins. No. MOVING PaRTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONSE 66. Plaintiff incorporates Fact Nos. 1-3, 11-12, 28-29, 45-46, 50. 52-60, 63 (See evidence in support of Fact Nos. 1-3, 11-12, 28-29, 45-46, 50. 52-60, 63, supra). 67. Under the terms of the Collection Agreements with customers, Bently’s containers, and any used oil placed inside of Bently’s containers, rightfully belong to Bently. Frey Dec., § 11, Ex. F. 68. Fisher admitted that “3D Oil&Grease collected used cooking oil, which its customers had stored in collection bins or containers with GOT GREASE or BENTLY logos on them” and that he swapped out Bently collection bins for his own 3D collection bins. Response to Request for Admission No. 14. Fisher Depo, 221:23-222:1. 69. Fisher abandoned Bently’s bins behind an industrial complex that does not belong to Bently. Fisher Depo. 288:7-17. Case No. CGC-13-535864 -19- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT70. Fisher never informed Bently what he did with the collection bins, nor did Fisher turn over the profits he made from the sale of the used oil he stole from Bently’s bins. Pekarek Dec., § 7-8. conceai ISSUE SIX Plaintiff succeeds on its sixth cause of action for fraud and concealment because Defendant ed from Plaintiff the fact that he was representing himself to be a company employee in his interactions with Plaintiffs customers, and thus misled customers into believing he was associated with Plaintiff when he in fact was not. Such misrepresentations and concealment caused damages to Plaintiff. No. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONSE 71. Plaintiff incorporates Fact Nos. 1-3, 11-21, 51-52 (See evidence in support of Fact Nos. 1-3, 11-21, 51-52, supra). Defen ISSUE SEVEN associated with Plaintiff. Plaintiff succeeds on its seventh cause of action for negligent misrepresentation because ant concealed from Plaintiff the fact that he was pretending to be a company employee in is representations to Plaintiffs customers, and thus misled customers into believing he was No. | MovinG Party’s UNDISPUTED MATERIAL FACTS RESPONSE AND SUPPORTING EVIDENCE 72. Plaintiff incorporates Fact Nos. 1-3, 11-21, 51-52 (See evidence in support of Fact Nos. 1-3, 11-21, 51-52, supra). Case No. CGC-13-535864 -20- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTISSUE EIGHT Plaintiff succeeds on its eighth cause of action for Violation of Business and Professions Code Sections 17200, et. seq. because Defendants engaged in unfair and unlawful business practices and unfair competition when they: converted Plaintiffs property and interfered with Plaintiff's property to prevent it from competing; misappropriated Plaintiffs trade secrets; misrepresented themselves to Plaintiff's customers; falsified used oil manifests for a truck that did not have a CDFA decal so they could compete unfairly and unlawfully with Plaintiff before obtaining proper licensure; and knowingly operating without legally required licenses to gain an unfair advantage over Plaintiff. No. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONSE 2B. Plaintiff incorporates Fact Nos. 1-72. (See evidence in support of Fact Nos. 1-72, supra). 74. Fisher “admits that 3D OIL&GREASE competes with BENTLY.” Response to Request for Admission No. 18. 75. Fisher began used oil collection services operations as early as October 6, 2013, before having obtained the proper licensure from the CDFA. Fisher Depo. 254:16-257:1; 277:24-278:6; 270:1-271:4. 76. 3D and Fisher’s truck did not have the proper licenses or decals from the CFDA to provide used oil collection until October 29, 2013, almost a month after he had already begun unlawfully providing such services. Fisher Depo. 182:3-5, 195:11-196:8; 197:9-11. Case No. CGC-13-535864 -21- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.oo 77. The California Department of Food and Agriculture (“CDFA”), which licenses entities engaged in the oil collection business, recently labeled Fisher a “violator” of the Food and Agriculture Code and refused to renew his license to collect used cooking oil because of his unlawful activities. Luri Dec. at { 7, Exh. C at 4. 78. This means that Fisher has been operating unlawfully, and thus competing against Bently unlawfully, for the last 10 months. Luri Dec., 7, Ex. D. 79. Fisher admitted that he transferred oil to Hanford Commodities with a falsified license from another company, KB Grease, because he and 3D did not have the proper licensing or decal. Fisher Depo. 276:17-278:6. 80. Fisher admitted that collecting used oil without the proper license was unlawful, but he did not wait to get this license (and operated without legal authority) because he did not want to lose customers. Fisher Depo. 254:25-255:4, 270:13-271:4, 278:20- 279:4. 81. Fisher has been operating without a license since February 2014. Luri Dec., 7, Ex. D. Case No. CGC-13-535864 -22- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENTCO Mm IN Dw 82. Fisher also transferred used oil in a truck without the proper registrations or decals, in violation of the law. Fisher Depo, 277:24-278:6, 278:25-279:4. 83. Fisher falsified the legally required manifest (the record of the transfer of used oil), as he did not have the proper vehicle registration and decals to do so. Fisher Depo., 168:19-21, 169:4-6, 195:11-197:14. Dated: December 19, 2014 Case No. CGC-13-535864 Respectfully submitted, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP RONALD J. HOLLAND BYBAK YOUSEFZADEH DORNA MOINI SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Bently Biofuels Collection Services -23- SEPARATE STATEMENT ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT