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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
RONALD J. HOLLAND, Cal. Bar No. 148687
BABAK G. YOUSEFZADEH
DORNA MOINI, Cal. Bar No. 287115
Four Embarcadero Center, 7" Floor
San Francisco, California 94111-4109
Telephone: 415.434.9100
Facsimile: 415.434.3947
Email: rholland@sheppardmullin.com
byousefzade
dmoini@sheppardmullin.com
Attorneys for Plaintiff
BEN’
BIOFUELS COLLECTION S
ERVICES, LLC,
SUPERIOR COURT OF TH
, Cal. Bar No. 235974
ELECTRONICALLY
FILED
Supertor Court of Caiffornia,
County of San Francisco
12/23/2014
Clerk of the Court
BY:WILLIAM TRUPEK
Deputy Clerk
(@sheppardmullin.com
PLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY
E STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC d/b/a
BENTLY BIOFUELS COLLECTION
SERVICES, LLC,
Plaintiff,
Vv.
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
Case No. CGC-13-535864
PLAINTIFF BENTLY BIOFUELS
COMPANY LLC’S NOTICE OF MOTION
AND MOTION FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION
Filed concurrently herewith: Memorandum of
Points and Authorities, Separate Statement of
Undisputed Material Facts, Declarations of
Sigarusa, Pekarek, Luri, Delucchi, Clutter,
Frey, Moini, and [Proposed] Order
Date: March 12, 2015
Time: 9:30 am
Department: 302
Reservation No. 121714-09
Trial Date: April 6, 2015
SMRH:435631158.1
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on March 12, 2015 at 9:30 am, or as soon thereafter as this
matter may be heard in Department 302 before the Honorable Judge Ernest H. Goldsmith of the
San Francisco Superior Court located at 400 McAllister St., San Francisco, CA 94102, Plaintiff
Bently Biofuels Company d/b/a Bently Biofuels Collection Services, LLC (“Bently”) will and
hereby does move this Court, pursuant to Section 437c of the Code of Civil Procedure, for an
order granting either (1) summary judgment in favor of Bently and against Defendant K. David
Fisher (“Fisher”) and his company 3D Oil&Grease (“3D”) (collectively “Defendants”), or (2)
alternatively, if for any reason summary judgment cannot be granted, for an order that there is no
material disputed fact as to each of the following causes of action contained in the Complaint filed
in this action by Bently, and that Bently is entitled to summary adjudication as a matter of law as
to each and every one of its claims for relief as follows:
1. 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.
2. 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.
3. 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
-l-
SMRH435631158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTdisrupted these contracts or 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.
4, ISSUE FOUR: Plaintiff succeeds on its fourth cause of action for tortious
interference with prospective economic advantage because Defendant interfered with Plaintiffs
economic relations by means of conversion, misappropriation of trade secrets, and violations of
Business and Professions Code § 17200 ev. seq. prohibiting unfair and unlawful competition and
business practices.
5. ISSUE 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.
6. ISSUE SIX: Plaintiff succeeds on its sixth cause of action for fraud and
concealment because Defendant concealed from Plaintiff the fact that he was representing himself
to be a company employee in his interactions with Plaintiff's 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.
7. ISSUE SEVEN: Plaintiff succeeds on its seventh cause of action for
negligent misrepresentation because Defendant concealed from Plaintiff the fact that he was
pretending to be a company employee in his representations to Plaintiff's customers, and thus
misled customers into believing he was associated with Plaintiff.
8. ISSUE 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 Plaintiff's property
and interfered with Plaintiffs 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 not have a CDFA decal so they could compete unfairly and unlawfully with Plaintiff
-2-
SMRHA35631158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT2 || gain an unfair advantage over Plaintiff.
1 || before obtaining proper licensure; and knowingly operating without legally required licenses to
3 This Motion is made upon the grounds that there is no triable issue of material fact and that
4 || Bently is entitled to summary judgment or summary adjudication as a matter of law. This Motion
5 || is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and
1 || Dated: December 19, 2014
6 || Authorities, the Separate Statement of Undisputed Material Facts, the Appendix of Evidence
7 || Submitted in Support of Bently’s Motion and all declarations and exhibits attached thereto, all
8 || pleadings and papers on file herein, any matter of which the Court may take judicial notice, and
9 || upon such oral argument as may be presented at the hearing on this Motion.
0
Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By 4 wad wh
RONALD J. HOLLAND
BABAK YOUSEFZADEH
DORNA MOINI
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Attorneys for Bently Biofuels Collection Services
-3-
SMRH:435631 158.1
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
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o ff 12 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations RONALD J. HOLLAND, Cal. Bar No. 148687 BABAK G. YOUSEFZADEH DORNA MOINI, Cal. Bar No. 287115 Four Embarcadero Center, 7" Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Email: rholland@sheppardmullin.com byousefzade dmoini@sheppardmullin.com Attorneys for Plaintiff BEN’ BIOFUELS COLLECTION S ERVICES, LLC, SUPERIOR COURT OF TH , Cal. Bar No. 235974 ELECTRONICALLY FILED Supertor Court of Caiffornia, County of San Francisco 12/23/2014 Clerk of the Court BY:WILLIAM TRUPEK Deputy Clerk (@sheppardmullin.com PLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY E STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, Vv. K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. Case No. CGC-13-535864 PLAINTIFF BENTLY BIOFUELS COMPANY LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Filed concurrently herewith: Memorandum of Points and Authorities, Separate Statement of Undisputed Material Facts, Declarations of Sigarusa, Pekarek, Luri, Delucchi, Clutter, Frey, Moini, and [Proposed] Order Date: March 12, 2015 Time: 9:30 am Department: 302 Reservation No. 121714-09 Trial Date: April 6, 2015 SMRH:435631158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 12, 2015 at 9:30 am, or as soon thereafter as this matter may be heard in Department 302 before the Honorable Judge Ernest H. Goldsmith of the San Francisco Superior Court located at 400 McAllister St., San Francisco, CA 94102, Plaintiff Bently Biofuels Company d/b/a Bently Biofuels Collection Services, LLC (“Bently”) will and hereby does move this Court, pursuant to Section 437c of the Code of Civil Procedure, for an order granting either (1) summary judgment in favor of Bently and against Defendant K. David Fisher (“Fisher”) and his company 3D Oil&Grease (“3D”) (collectively “Defendants”), or (2) alternatively, if for any reason summary judgment cannot be granted, for an order that there is no material disputed fact as to each of the following causes of action contained in the Complaint filed in this action by Bently, and that Bently is entitled to summary adjudication as a matter of law as to each and every one of its claims for relief as follows: 1. 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. 2. 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. 3. 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 -l- SMRH435631158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTdisrupted these contracts or 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. 4, ISSUE FOUR: Plaintiff succeeds on its fourth cause of action for tortious interference with prospective economic advantage because Defendant interfered with Plaintiffs economic relations by means of conversion, misappropriation of trade secrets, and violations of Business and Professions Code § 17200 ev. seq. prohibiting unfair and unlawful competition and business practices. 5. ISSUE 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. 6. ISSUE SIX: Plaintiff succeeds on its sixth cause of action for fraud and concealment because Defendant concealed from Plaintiff the fact that he was representing himself to be a company employee in his interactions with Plaintiff's 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. 7. ISSUE SEVEN: Plaintiff succeeds on its seventh cause of action for negligent misrepresentation because Defendant concealed from Plaintiff the fact that he was pretending to be a company employee in his representations to Plaintiff's customers, and thus misled customers into believing he was associated with Plaintiff. 8. ISSUE 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 Plaintiff's property and interfered with Plaintiffs 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 not have a CDFA decal so they could compete unfairly and unlawfully with Plaintiff -2- SMRHA35631158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT2 || gain an unfair advantage over Plaintiff. 1 || before obtaining proper licensure; and knowingly operating without legally required licenses to 3 This Motion is made upon the grounds that there is no triable issue of material fact and that 4 || Bently is entitled to summary judgment or summary adjudication as a matter of law. This Motion 5 || is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and 1 || Dated: December 19, 2014 6 || Authorities, the Separate Statement of Undisputed Material Facts, the Appendix of Evidence 7 || Submitted in Support of Bently’s Motion and all declarations and exhibits attached thereto, all 8 || pleadings and papers on file herein, any matter of which the Court may take judicial notice, and 9 || upon such oral argument as may be presented at the hearing on this Motion. 0 Respectfully submitted, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By 4 wad wh RONALD J. HOLLAND BABAK YOUSEFZADEH DORNA MOINI SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Bently Biofuels Collection Services -3- SMRH:435631 158.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT