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1 Shayna Balch Santiago (SBN 304802)
E-Mail: ssantiago@fisherphillips.com
2 FISHER & PHILLIPS LLP
3200 N. Central Avenue, Suite 1550
3 Phoenix, Arizona 85012-2487
Telephone: (602) 281-3400
4 Facsimile: (602) 281-3401
5 Kathryn M. Evans (SBN 323190)
E-Mail: kmevans@fisherphillips.com
6 FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
7 San Diego, California 92121
Telephone: (858) 597-9600
8 Facsimile: (858) 597-9601
9 Attorneys for Defendants,
UCOMMG, LLC; UNIFIED COMMUNICATIONS
10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA
NEWBATT; MITCHELL C. LIPKIN; MICHAEL J.
11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE
UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION
15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877
limited liability company, [Unlimited Jurisdiction]
16
Plaintiff, Assigned for all purposes to the
17 Honorable Donna D. Geck, Dept. 4
v.
18 DECLARATION OF KATHRYN M.
UCOMMG, LLC, a Nevada limited liability EVANS IN SUPPORT OF
19 company; UNIFIED COMMUNICATIONS DEFENDANTS’ OPPOSITION TO
GROUP, INC., a dissolved Washington PLAINTIFF’S EX PARTE
20 corporation; KENNETH W. NEWBATT, an APPLICATION RE: CONTINUING
individual; BIANCA NEWBATT, an HEARING ON DEFENDANTS’ MOTION
21 individual; MITCHELL C. LIPKIN, an TO QUASH SERVICE OF SUMMONS
individual; MICHAEL J. BELLAS, an
22 individual; JIMMIE GARRETT BAKER, JR.,
an individual; WESTELE UTILITY Date: February 9, 2022
23 SOLUTIONS, LLC, a California limited Time: 8:30 a.m.
liability company; and DOES 1 through 50,
24 inclusive,
Complaint Filed: November 20, 2020
25 Defendants. Removal Filed: January 4, 2021
FAC Filed: April 16, 2021
26 Remanded to State Court: August 3, 2021
Trial Date: Not Set
27
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
FP 43057681.1
1 DECLARATION OF KATHRYN M. EVANS
2 I, Kathryn M. Evans, hereby declare and state as follows:
3 1. I am an attorney at law duly licensed to practice before all courts in the State of
4 California. I am an associate with Fisher & Phillips LLP, counsel of record for Defendants
5 UCOMMG, LLC, Unified Communications Group, Inc., Kenneth W. Newbatt, Bianca Newbatt,
6 Mitchell C. Lipkin, Michael J. Bellas, WesTele Utility Solutions, LLC, and Cynthia Baker
7 (collectively “Defendants”). Based on my personal knowledge, I assert the facts set forth herein
8 and, if called as a witness, I could and would competently testify thereto.
9 2. My office alerted Plaintiff’s counsel to the jurisdictional issues regarding
10 Defendants UCOMMG, LLC, Unified Communications Group, Inc., Kenneth Newbatt, Bianca
11 Newbatt, Mitchell Lipkin, and Michael Bellas (collectively the “Nonresident Defendants”), along
12 with the other deficiencies in the Complaint, including Plaintiff’s complete failure to allege
13 sufficient facts to support its claims, during a phone call on January 13, 2021. Despite numerous
14 further meet and confer efforts, Plaintiff declined to amend its Complaint and my clients were
15 forced to file multiple Motions to Dismiss in federal court.
16 3. The matter was remanded to this Court on August 3, 2021 prior to the district
17 court ruling on Defendants’ motion to dismiss.
18 4. After remand, Defendants again requested that Plaintiff amend its complaint to
19 resolve the jurisdictional deficiencies and gave Plaintiff ample time to do so. Plaintiff refused to
20 file an amended pleading. As a result, the Nonresident Defendants were forced to file their
21 motion to quash service of summons for lack of personal jurisdiction on September 20, 2021.
22 5. Despite being aware of the Nonresident Defendants’ position on personal
23 jurisdiction for nearly a year, Plaintiff waited until September 27, 2021 to serve discovery
24 requests on Defendants UCOMMG, LLC and Unified Communications Group, Inc. The
25 overbroad discovery requests sought confidential and irrelevant documents related to the entities’
26 business operations, customers, and employees. Plaintiff never sought jurisdictional discovery
27 in the nine months prior and had previously filed an Opposition to the Nonresident Defendants’
28 ///
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
FP 43057681.1
1 motion to dismiss on personal jurisdiction grounds in federal court without claiming it required
2 jurisdictional discovery.
3 6. On October 29, 2021, UCOMMG and Unified served responses to the discovery
4 requests that solely sought information relating to jurisdiction and served objections to the
5 remainder of the requests.
6 7. On November 2, 2021, Plaintiff served discovery requests on Defendants Kenneth
7 Newbatt, Mitchell Lipkin, and Michael Bellas. To date, Plaintiff has not propounded any
8 discovery requests on Defendant Bianca Newbatt.
9 8. On December 3, 2021, this Court issued a ruling continuing the Nonresident
10 Defendants’ motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional
11 discovery. The Court set a supplemental briefing schedule requiring Plaintiff to serve its
12 supplemental opposition on or before February 18, 2022 and the Nonresident Defendants to file
13 a supplemental reply on or before February 28, 2022. In pertinent part, the Court’s ruling stated:
14 “To the extent that any discovery disputes arise, the parties are expected to proceed with
15 diligence so that jurisdictional discovery is completed to meet the deadlines for the
16 supplemental briefing.” The Court also acknowledged that the scope of the discovery sought
17 by Plaintiff is limited due to the mandatory trade secret disclosures required by Code of Civil
18 Procedure section 2019.210. A true and correct copy of the Court’s ruling is attached hereto as
19 Exhibit A.
20 9. In accordance with the Court’s instructions to proceed with diligence, on
21 December 9, 2021, Defendants Kenneth Newbatt, Michell Lipkin, and Michael Bellas served
22 responses to the discovery requests propounded by Plaintiff that sought purely jurisdictional
23 information. Defendants Newbatt, Lipkin, and Bellas objected to the remainder of Plaintiff’s
24 discovery requests. Plaintiff did not make any attempt to meet and confer with Defendants
25 Newbatt, Lipkin, and Bellas regarding the discovery responses and Plaintiff’s motion to compel
26 deadline has already passed.
27 10. After the Court issued its ruling on December 3, 2021, Plaintiff waited over a
28 week until Saturday, December 11, 2021 to send a two paragraph “meet-and-confer” email on
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
FP 43057681.1
1 Defendants UCOMMG and Unified Communications Group, Inc.’s discovery responses that
2 utterly failed to comply with the meet and confer requirements set forth in Code of Civil
3 Procedure section 2016.040. Specifically, Plaintiff sought to meet and confer on 24
4 interrogatories and 23 requests for production addressed to two different defendants, but Plaintiff
5 failed to address any specific discovery responses or objections with which Plaintiff took issue.
6 True and correct copies of Plaintiff’s counsel’s December 11, 2021 emails are attached hereto as
7 Exhibit B.
8 11. I responded to Plaintiff’s email on Tuesday, December 14, 2021, at 1:44 p.m.
9 explaining that Plaintiff had failed to comply with the meet and confer requirements set forth in
10 Code of Civil Procedure section 2016.040. I requested Plaintiff identify the requests upon which
11 it intends to move to compel and the authority upon which Plaintiff contends that Defendants’
12 responses were improper. I also invited a phone call to telephonically meet and confer that
13 afternoon. A true and correct copy of my December 14, 2021 email correspondence is attached
14 hereto as Exhibit C.
15 12. Plaintiff’s counsel responded the same day, stating that the purpose of the
16 December 11 email was not to “discuss the propriety of the discovery requests” but instead was
17 only to ask whether Plaintiff could have an extension of time to file motions to compel. Plaintiff’s
18 counsel then demanded an extension on its motion to compel deadlines by 45 days. At the time,
19 Plaintiff’s deadline to file a motion to compel on UCOMMG and Unified’s discovery responses
20 was only two days later on December 16, 2021. A true and correct copy of Plaintiff’s counsel’s
21 correspondence is attached hereto as Exhibit D.
22 13. I immediately responded and informed Plaintiff’s counsel that a 45-day extension
23 would be until approximately February 1, 2021. I reminded Plaintiff that its supplemental
24 opposition was due by February 18 and a 45-day extension would not leave enough time to
25 complete briefing and for the court to issue a ruling on any discovery disputes related to the
26 jurisdictional discovery. I stated that Defendants would not agree to postpone the supplemental
27 briefing deadlines or the March 11 hearing date on the motion to quash and granted a limited 2-
28 week extension on the motion to compel deadlines to allow the parties time to meet and confer.
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
FP 43057681.1
1 A true and correct copy of the email exchange between Plaintiff’s counsel and my office is
2 attached hereto as Exhibit E.
3 14. In response, Plaintiff requested an additional five-day extension on the motion to
4 compel deadline. I acquiesced to the extension but expressly reminded Plaintiff’s counsel that
5 the Court instructed the parties to proceed with diligence on the jurisdictional discovery. I also
6 reiterated that Defendants would not agree to continue the briefing schedule or hearing on the
7 motion to quash. A true and correct copy of the email exchange between Plaintiff’s counsel and
8 my office is attached hereto as Exhibit F.
9 15. Plaintiff then waited an additional week before sending four meet and confer
10 letters at 11:53 p.m. on Wednesday, December 22, 2021 and demanding supplemental responses
11 within one business day by close of business on Monday, December 27, 2021, despite knowing
12 that Friday, December 24 was a court holiday. Again, Plaintiff’s meet and confer letters were
13 utterly deficient and merely copied and pasted the same six sentences as to each and every request
14 at issue rather than providing any substantive analysis or discussion on how the discovery
15 responses were not sufficient, how each request was narrowly tailored to demonstrate
16 jurisdiction, or why the requests did not overlap with Plaintiff’s allegations that Defendants
17 misappropriated or used Plaintiff’s trade secret or “confidential” information. True and correct
18 copies of Plaintiff’s meet-and-confer letters are attached hereto as Exhibit G.
19 16. Three business days later, on December 29, I responded to Plaintiff’s inadequate
20 meet and confer letters. Despite Plaintiff’s failure to properly meet and confer, UCOMMG and
21 Unified agreed to supplement its objections and responses to several Special Interrogatories to
22 more closely track the objections and responses set forth in the individual defendants’ discovery
23 responses to the same or similar requests (which were served after Defendants had the benefit of
24 the Court’s December 3, 2021 ruling which expressly states that Plaintiff’s “eliminat[ion] of trade
25 secret claims from the SAC does not necessarily imply that the limitation of section 2019.210
26 does not apply to the remaining causes of action.”). Specifically, UCOMMG and Unified
27 responded to or agreed to respond to Form Interrogatories - General Nos. 1.1, 3.1, 3.2, 3.3, 3.4,
28 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23 and 24. As to the remaining
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
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1 discovery requests, Defendants delineated the multiple reasons why the requests were improper
2 and why Defendants objections were appropriate A true and correct copy of my meet-and-confer
3 letter is attached hereto as Exhibit H.
4 17. Plaintiff’s counsel sent an additional meet and confer letter on December 30,
5 2021, (again, the day before a Court holiday on December 31, 2021) and demanded a response
6 by the end of the day. A true and correct copy of Plaintiff’s letter is attached hereto as Exhibit
7 I.
8 18. On January 3 and 4, I responded to several emails from Plaintiff’s counsel in
9 which he requested additional extensions of time to file a motion to compel. I continued to
10 explain why Plaintiff’s discovery requests were improper and overbroad. I declined to grant any
11 additional extensions on Plaintiff’s motion to compel deadlines given the Court’s order to act
12 with diligence in order to complete any discovery prior to the supplemental briefing deadline. A
13 true and correct copy of the email exchange between Plaintiff’s counsel and my office is attached
14 hereto as Exhibit J.
15 19. On January 4, 2022, Plaintiff filed a motion to compel further responses to special
16 interrogatories and requests for production as to Defendant UCOMMG, LLC only. Plaintiff did
17 not file any motions with regard to any of the other Nonresident Defendants.
18 I declare under penalty of perjury, under the laws of the State of California, that the
19 foregoing is true and correct. Executed on this 8th day of February, 2022, at San Diego,
20 California.
21
22
Kathryn M. Evans
23
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25
26
27
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EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ
FP 43057681.1
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 12/03/2021 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Kristi Temple Dept: SB Dept 4
Deputy Sheriff: Kent McBride
Court Reporter: Michelle Sabado Case No: 20CV03877
Butler America LLC vs UCOMMG LLC et al
Parties Present:
Cameron Totten Plaintiff’s Attorney
Kathryn Evans Defendant’s Attorney
NATURE OF PROCEEDINGS: Motion: Quash Service of Summons for Lack of Personal
Jurisdiction; Demurrer to FAC
Counsel presented argument.
The Court adopted the tentative ruling as follows:
RULING:
(1) For the reasons set forth herein, the demurrer of defendants WesTele and Cynthia Baker to the
first amended complaint is deemed sustained with leave to amend with plaintiff Butler America, LLC’s
second amended complaint already on file deemed filed pursuant to that leave to amend. For purposes
of determining when a response is due, the second amended complaint is deemed filed and served
(without any extension of time for manner of service) as of December 3, 2021. The demurrer of specially
appearing defendants UCOMMG, LLC, Kenneth W. Newbatt, Unified Communications Group, Inc.,
Bianca Newbatt, Mitchell Lipkin, and Michael Bellas to the first amended complaint is ordered off
calendar as moot by the filing of the second amended complaint.
(2) For the reasons set forth herein, the motion of specially appearing defendants UCOMMG, LLC,
Kenneth W. Newbatt, Unified Communications Group, Inc., Bianca Newbatt, Mitchell Lipkin, and Michael
Bellas to quash service of summons based on the lack of personal jurisdiction is continued to March 11,
2022, at 10:00 a.m. to permit plaintiff Butler America, LLC, to conduct jurisdictional discovery. Plaintiff
Butler America, LLC, shall file and serve its supplemental opposition on or before February 18, 2022;
moving parties may file and serve a supplemental reply on or before February 28, 2022. To the extent
that any discovery disputes arise, the parties are expected to proceed with diligence so that jurisdictional
discovery is completed to meet the deadlines for the supplemental briefing.
Background:
SC-2411 (Revised July 1, 2013) MINUTE ORDER
On November 20, 2020, plaintiff Butler America, LLC (Butler America) filed its original complaint in this
action asserting eight causes of action: (1) breach of contract; (2) breach of implied covenant of good
faith and fair dealing; (3) misappropriation of trade secrets (Civ. Code, § 3426 et seq.); (4)
misappropriation of trade secrets (common law); (5) conversion; (6) intentional interference with
contractual relations; (7) intentional interference with prospective economic advantage; and (8) unfair
business practices (Bus. & Prof. Code, § 17200 et seq.).
On January 4, 2021, defendants UCOMMG, LLC (UCOMMG) and Kenneth W. Newbatt (K Newbatt)
removed this matter to federal court.
While this matter was before the United States District Court, defendants UCOMMG, K Newbatt, Bianca
Newbatt (B Newbatt), Mitchell Lipkin, Michael Bellas, and WesTele Utility Solutions, LLC (WesTele) filed
a motion to dismiss on March 26, 2021. (Evans decl. re pleadings, exhibit A.) Also on March 26,
defendant Jimmie Garret Baker, Jr. (J Baker) filed a motion to compel arbitration. (Evans decl. re
pleadings, exhibit B.) On April 5, Butler America filed its opposition to the motion to compel arbitration.
(Totten decl. re pleadings, exhibit A.) On April 12, 2021, J Baker filed his reply as to the motion to compel
arbitration. (Evans decl. re pleadings, exhibit C.)
Still in federal court, on April 16, 2021, Butler America filed its first amended complaint (FAC). (Totten
decl. re pleadings, exhibit B.) The FAC asserts five causes of action: (1) breach of contract; (2) breach of
implied covenant of good faith and fair dealing; (3) misappropriation of trade secrets (Civ. Code, § 3426
et seq.); (4) intentional interference with prospective economic advantage; and (5) unfair business
practices (Bus. & Prof. Code, § 17200 et seq.). As a consequence of the filing of the FAC, by order on
April 19, the District Court denied as moot defendants’ motion to dismiss the original complaint. (Evans
decl. re pleadings, exhibit D.) On April 30, defendants filed a motion to dismiss the FAC. (Evans decl. re
pleadings, exhibit E.) Butler America filed its opposition to the motion to dismiss on May 17. (Totten decl.
re pleadings, exhibits F, G.) Defendants filed their reply on May 24. (Evans decl. re pleadings, exhibit F.)
On July 28, 2021, the District Court, without having ruled on the motion to dismiss, ordered the parties to
show cause why the action should not be remanded to state court for lack of federal subject matter
jurisdiction. (Evans decl. re pleadings, exhibit G [order of remand].) On August 3, the District Court
issued its order remanding this action to this court and denied the motion to dismiss as moot. (Ibid.) The
order of remand was received and filed in this court on August 17.
On September 20, defendants UCOMMG, Unified Communications Group, Inc. (UCG), K Newbatt, B
Newbatt, Lipkin, and Bellas (collectively, specially appearing defendants) filed their motion to quash
service of summons for lack of personal jurisdiction. Concurrently with the motion to quash, the specially
appearing defendants, together with defendants WesTele and Cynthia Baker (C Baker) (the generally
appearing defendants), filed their demurrer to the FAC. (Note: The specially appearing defendants and
the generally appearing defendants are collectively referred to simply as the “defendants.”)
On October 5, 2021, the court entered its order on the stipulation of Butler America and J Baker to order
to arbitration the claims as between those parties, and staying the action as between them pending
disposition of the arbitration.
On November 5, 2021, defendants filed their motion for terminating sanctions or, alternatively, for a
protective order and for monetary sanctions. This motion is now set for hearing on February 18, 2022.
On November 15, 2021, Butler America filed its second amended complaint (SAC) asserting six causes
of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3)
SC-2411 (Revised July 1, 2013) MINUTE ORDER
conversion; (4) intentional interference with contractual relations; (5) intentional interference with
prospective economic advantage; and (6) unfair business practices (Bus. & Prof. Code, § 17200 et seq.).
On November 18, 2021, Butler America filed its opposition to the motion to quash and to the demurrer. In
opposition to the motion to quash, Butler America asserts that the filing of the SAC renders the motion
moot or, alternatively, the motion should be continued to give Butler America the opportunity to conduct
jurisdictional discovery. In opposition to the demurrer to the FAC, Butler America argues that the filing of
the SAC renders the demurrer to the FAC moot.
On November 19, 2021, defendants filed their motion to strike the SAC on the grounds that Butler
America failed to seek leave to file the SAC. This motion is now set for hearing on February 18, 2022.
Also on November 19, defendants filed their motion for sanctions pursuant to Code of Civil Procedure
section 128.7. This motion is now set for hearing on February 25, 2022.
Analysis:
(1) Demurrer to FAC
The demurrer to the FAC now before the court was brought by both the specially appearing defendants
and the generally appearing defendants. The demurrer by the generally appearing defendants is not
subject to the issues relating to personal jurisdiction raised by the specially appearing defendants’ motion
to quash service of summons. Accordingly, the court will first address the demurrer as to the generally
appearing defendants.
As the parties have noted, Butler America has filed a second amended complaint after the filing of the
demurrer to the FAC was filed. Ordinarily, the filing of an amended complaint renders moot a demurrer to
a prior complaint. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) The issue raised by defendants’
motion to strike the SAC (which motion is not now before the court) is that the SAC was not filed with
leave of court. “A party may amend its pleading once without leave of the court at any time before the
answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the
demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date
for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) The SAC
is, as its title indicates, the second amended complaint. Butler America filed its first amended complaint
in the federal court and, upon remand, the FAC became the operative pleading in this court. As a
consequence, the SAC was not filed as of right pursuant to section 472.
The court construes the filing of the SAC as a concession that the demurrer to the FAC is in some part
meritorious and the SAC is intended as the amended pleading to be offered in response to leave to
amend after the sustaining of the demurrer to the FAC. Because this is the first demurrer to be heard by
this court, the court would ordinarily grant leave to amend. As so construed, the court deems the SAC as
filed following the sustaining of the demurrer to the FAC with leave to amend. For purposes of filing a
response to the SAC, the court deems the SAC filed and served (without any extension as to means of
service) as of the date of this hearing and thus the time for a response runs from December 3, 2021.
Nothing in this ruling is to be construed as determining any particular argument made in the demurrer to
the FAC. The court will address any issues regarding the sufficiency of the allegations as they appear in
the SAC if and when challenged by an appropriate motion or pleading.
Based upon the filing of the SAC in response to the demurrer of the generally appearing defendants, the
demurrer to the FAC by the specially appearing parties is moot.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
(2) Motion to Quash Service of Summons
The filing of the SAC may or may not moot the motion of the specially appearing defendants to quash
service of summons on the grounds of lack of personal jurisdiction. As noted above, the SAC changes
the causes of action asserted and deletes the causes of action for misappropriation of trade secrets.
In opposition to the motion, Butler America notes that it has initiated some jurisdictional discovery, the
effect of which appears to be disputed, and, if the court is otherwise inclined to grant the motion to
quash, requests a continuance to obtain jurisdictional discovery.
“[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to
demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of
personal jurisdiction. [Citation.] The plaintiff has the right to conduct discovery with regard to the issue of
jurisdiction to develop the facts necessary to sustain this burden.” (Mihlon v. Superior Court (1985) 169
Cal.App.3d 703, 710.)
The court is not going to engage in an iterative process by which Butler America presents some evidence
to support its position and, if it is not enough, then try again. Butler America is entitled to present all of its
evidence and then have the court determine whether, when all of the evidence presented by all parties is
considered, Butler America has met its evidentiary burden. Since Butler America asserts that it needs
discovery to present all of its evidence, this matter will be continued to permit that discovery and for the
parties to file supplemental papers.
The court is also aware that the scope of discovery is an issue because of the limitations of Code of Civil
Procedure section 2019.210, which provides:
“In any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act (Title 5
(commencing with Section 3426) of Part 1 of Division 4 of the Civil Code), before commencing discovery
relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with
reasonable particularity subject to any orders that may be appropriate under Section 3426.5 of the Civil
Code.” (Code Civ. Proc., § 2019.210.)
The limitation of section 2019.210 applies (1) to an action alleging the misappropriation of a trade secret
and (2) before commencing discovery relating to the trade secret. With respect to first issue, “Code of
Civil Procedure section 2019.210 …, which provides that discovery relating to a trade secret may not
commence until the trade secret is identified with ‘reasonable particularity,’ is not limited in its application
to a cause of action under the Uniform Trade Secrets Act (UTSA) [citation], for misappropriation of the
trade secret, but extends to any cause of action which relates to the trade secret.” (Advanced Modular
Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 830.) Thus, eliminating the
misappropriation of trade secret claims from the SAC does not necessarily imply that the limitation of
section 2019.210 does not apply to the remaining causes of action.
With respect to the second issue, “discovery relating to the trade secret” may or may not overlap with
jurisdictional discovery. “The purpose of section 2019.210 is as follows: ‘First, it promotes well-
investigated claims and dissuades the filing of meritless trade secret complaints. Second, it prevents
plaintiffs from using the discovery process as a means to obtain the defendant’s trade secrets.
[Citations.] Third, the rule assists the court in framing the appropriate scope of discovery and in
determining whether plaintiff’s discovery requests fall within that scope. [Citations.] Fourth, it enables
defendants to form complete and well-reasoned defenses, ensuring that they need not wait until the eve
SC-2411 (Revised July 1, 2013) MINUTE ORDER
of trial to effectively defend against charges of trade secret misappropriation. [Citations.]’ [Citation.]”
(Advanced Modular Sputtering, Inc. v. Superior Court, supra, 132 Cal.App.4th at pp. 833–834.) Whether
discovery ostensibly aimed at jurisdictional issues would fall within discovery prohibited by section
2019.210 prior to trade secret identification would have to be determined based upon the nature of the
discovery sought applying the legal standards consistent with the purpose of section 2019.210. The court
does not have the occasion to make any determinations as to the propriety of any particular discovery as
the matter is now presented to the court. The court expects, however, that if any disputes arise as to the
propriety of discovery that the parties will exhaustively meet and confer to avoid the necessity of court
intervention to the extent practicable.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kristi Temple , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
EXHIBIT B
O'Connor, Kristy
From: Cameron Totten
Sent: Saturday, December 11, 2021 5:18 PM
To: Evans, Katie
Cc: Santiago, Shayna Balch
Subject: Butler v. Unified, et al. -- Defendant UCOMMG, LLC's Responses to Plaintiff's First Set of
Special Interrogatories
CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender
and know the content is safe.
Dear Katie,
This email is an attempt to meet and confer with regard to Defendant UCOMMG, LLC’s Responses to Plaintiff’s First Set
of Special Interrogatories, Nos. 1, 4‐7, and 9‐27. In light of the Court’s ruling on December 3, 2021, Plaintiff is entitled to
discovery regarding jurisdiction. Said interrogatories were specifically drafted to relate only to jurisdictional
issues. Moreover, the interrogatories do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its
misappropriation of trade secrets cause of action.
Accordingly, complete and straightforward responses are required. Cal. Code Civ. Proc. §§ 2030.220(a) and (b). Please
provide supplemental responses on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and
confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a
thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you.
Sincerely,
Cameron H. Totten, Esq.
Attorney
CHORA YOUNG & MANASSERIAN LLP
A Judgment Enforcement Firm
650 Sierra Madre Villa Ave., Ste. 304
Pasadena, CA 91107
Tel.: (626) 744‐1838
Fax: (626) 744‐3167
Cameron@cym.law
Chora Young LLP ‐ Pasadena Judgment Enforcements
1
O'Connor, Kristy
From: Cameron Totten
Sent: Saturday, December 11, 2021 5:20 PM
To: Evans, Katie
Cc: Santiago, Shayna Balch
Subject: Butler v. Unified, et al. -- Defendant Unified Communications Group, Inc.'s Responses
to Plaintiff's First Set of Special Interrogatories
CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender
and know the content is safe.
Dear Katie,
This email is an attempt to meet and confer with regard to Defendant Unified Communications Group, Inc.’s Responses
to Plaintiff’s First Set of Special Interrogatories, Nos. 1, 4‐7, and 9‐25. In light of the Court’s ruling on December 3, 2021,
Plaintiff is entitled to discovery regarding jurisdiction. Said interrogatories were specifically drafted to relate only to
jurisdictional issues. Moreover, the interrogatories do not relate to any trade secrets. Additionally, Plaintiff has
withdrawn its misappropriation of trade secrets cause of action.
Accordingly, complete and straightforward responses are required. Cal. Code Civ. Proc. §§ 2030.220(a) and (b). Please
provide supplemental responses on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and
confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a
thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you.
Sincerely,
Cameron H. Totten, Esq.
Attorney
CHORA YOUNG & MANASSERIAN LLP
A Judgment Enforcement Firm
650 Sierra Madre Villa Ave., Ste. 304
Pasadena, CA 91107
Tel.: (626) 744‐1838
Fax: (626) 744‐3167
Cameron@cym.law
Chora Young LLP ‐ Pasadena Judgment Enforcements
1
O'Connor, Kristy
From: Cameron Totten
Sent: Saturday, December 11, 2021 5:37 PM
To: Evans, Katie
Cc: Santiago, Shayna Balch
Subject: Butler v. Unified, et al. -- Defendant UCOMMG, LLC's Responses to Plaintiff's First Set of
Requests for Production of Documents
CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender
and know the content is safe.
Dear Katie,
This email is an attempt to meet and confer with regard to Defendant UCOMMG, LLC’s Responses to Plaintiff’s First Set
of Requests for Production of Documents, Nos. 1‐23. In light of the Court’s ruling on December 3, 2021, Plaintiff is
entitled to discovery regarding jurisdiction. Said requests were specifically drafted to relate only to jurisdictional
issues. Moreover, the requests do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its
misappropriation of trade secrets cause of action.
Accordingly, further responses are required. Accordingly, please provide supplemental responses pursuant to California
Code of Civil Procedure Sections 2031.210 and/or 2031.220 on or before Tuesday, December 14, 2021. Alternatively, if
you would like to meet and confer further or need additional time to provide supplemental responses, please let me
know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you.
Sincerely,
Cameron H. Totten, Esq.
Attorney
CHORA YOUNG & MANASSERIAN LLP
A Judgment Enforcement Firm
650 Sierra Madre Villa Ave., Ste. 304
Pasadena, CA 91107
Tel.: (626) 744‐1838
Fax: (626) 744‐3167
Cameron@cym.law
Chora Young LLP ‐ Pasadena Judgment Enforcements
1
O'Connor, Kristy
From: Cameron Totten
Sent: Saturday, December 11, 2021 5:39 PM
To: Evans, Katie
Cc: Santiago, Shayna Balch
Subject: Butler v. Unified, et al. -- Defendant Unified Communications Group, Inc.’s Responses
to Plaintiff's First Set of Requests for Production
CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender
and know the content is safe.
Dear Katie,
This email is an attempt to meet and confer with regard to Defendant Unified Communications Group, Inc.’s Responses
to Plaintiff’s First Set of Requests for Production of Documents, Nos. 1‐22. In light of the Court’s ruling on December 3,
2021, Plaintiff is entitled to discovery regarding jurisdiction. Said requests were specifically drafted to relate only to
jurisdictional issues. Moreover, the requests do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its
misappropriation of trade secrets cause of action.
Accordingly, further responses are required. Accordingly, please provide supplemental responses pursuant to California
Code of Civil Procedure Sections 2031.210 and/or 2031.220 on or before Tuesday, December 14, 2021. Alternatively, if
you would like to meet and confer further or need additional time to provide supplemental responses, please let me
know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you.
Sincerely,
Cameron H. Totten, Esq.
Attorney
CHORA YOUNG & MANASSERIAN LLP
A Judgment Enforcement Firm
650 Sierra Madre Villa Ave., Ste. 304
Pasadena, CA 91107
Tel.: (626) 744‐1838
Fax: (626) 744‐3167
Cameron@cym.law
Chora Young LLP ‐ Pasadena Judgment Enforcements
1
EXHIBIT C
O'Connor, Kristy
From: Evans, Katie
Sent: Tuesday, December 14, 2021 1:44 PM
To: Cameron Totten
Cc: Santiago, Shayna Balch
Subject: RE: Butler v. Unified, et al. -- Defendants Responses to Plaintiff's Written Discovery
Requests
Hi Cameron,
You sent your first meet and confer correspondence on these discovery responses on Saturday night. It is now Tuesday
midday. We are happy to meet and confer, however sending six emails in less than two business days and demanding a
response “immediately” is not reasonable.
Your meet and confer correspondence does not comply with Code of Civil Procedure section 2016.040, which requires
“a reasonable and good faith attempt at an informal resolution of each issue.”
Preview
1 Shayna Balch Santiago (SBN 304802) E-Mail: ssantiago@fisherphillips.com 2 FISHER & PHILLIPS LLP 3200 N. Central Avenue, Suite 1550 3 Phoenix, Arizona 85012-2487 Telephone: (602) 281-3400 4 Facsimile: (602) 281-3401 5 Kathryn M. Evans (SBN 323190) E-Mail: kmevans@fisherphillips.com 6 FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 7 San Diego, California 92121 Telephone: (858) 597-9600 8 Facsimile: (858) 597-9601 9 Attorneys for Defendants, UCOMMG, LLC; UNIFIED COMMUNICATIONS 10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA NEWBATT; MITCHELL C. LIPKIN; MICHAEL J. 11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION 15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877 limited liability company, [Unlimited Jurisdiction] 16 Plaintiff, Assigned for all purposes to the 17 Honorable Donna D. Geck, Dept. 4 v. 18 DECLARATION OF KATHRYN M. UCOMMG, LLC, a Nevada limited liability EVANS IN SUPPORT OF 19 company; UNIFIED COMMUNICATIONS DEFENDANTS’ OPPOSITION TO GROUP, INC., a dissolved Washington PLAINTIFF’S EX PARTE 20 corporation; KENNETH W. NEWBATT, an APPLICATION RE: CONTINUING individual; BIANCA NEWBATT, an HEARING ON DEFENDANTS’ MOTION 21 individual; MITCHELL C. LIPKIN, an TO QUASH SERVICE OF SUMMONS individual; MICHAEL J. BELLAS, an 22 individual; JIMMIE GARRETT BAKER, JR., an individual; WESTELE UTILITY Date: February 9, 2022 23 SOLUTIONS, LLC, a California limited Time: 8:30 a.m. liability company; and DOES 1 through 50, 24 inclusive, Complaint Filed: November 20, 2020 25 Defendants. Removal Filed: January 4, 2021 FAC Filed: April 16, 2021 26 Remanded to State Court: August 3, 2021 Trial Date: Not Set 27 28 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 1 DECLARATION OF KATHRYN M. EVANS 2 I, Kathryn M. Evans, hereby declare and state as follows: 3 1. I am an attorney at law duly licensed to practice before all courts in the State of 4 California. I am an associate with Fisher & Phillips LLP, counsel of record for Defendants 5 UCOMMG, LLC, Unified Communications Group, Inc., Kenneth W. Newbatt, Bianca Newbatt, 6 Mitchell C. Lipkin, Michael J. Bellas, WesTele Utility Solutions, LLC, and Cynthia Baker 7 (collectively “Defendants”). Based on my personal knowledge, I assert the facts set forth herein 8 and, if called as a witness, I could and would competently testify thereto. 9 2. My office alerted Plaintiff’s counsel to the jurisdictional issues regarding 10 Defendants UCOMMG, LLC, Unified Communications Group, Inc., Kenneth Newbatt, Bianca 11 Newbatt, Mitchell Lipkin, and Michael Bellas (collectively the “Nonresident Defendants”), along 12 with the other deficiencies in the Complaint, including Plaintiff’s complete failure to allege 13 sufficient facts to support its claims, during a phone call on January 13, 2021. Despite numerous 14 further meet and confer efforts, Plaintiff declined to amend its Complaint and my clients were 15 forced to file multiple Motions to Dismiss in federal court. 16 3. The matter was remanded to this Court on August 3, 2021 prior to the district 17 court ruling on Defendants’ motion to dismiss. 18 4. After remand, Defendants again requested that Plaintiff amend its complaint to 19 resolve the jurisdictional deficiencies and gave Plaintiff ample time to do so. Plaintiff refused to 20 file an amended pleading. As a result, the Nonresident Defendants were forced to file their 21 motion to quash service of summons for lack of personal jurisdiction on September 20, 2021. 22 5. Despite being aware of the Nonresident Defendants’ position on personal 23 jurisdiction for nearly a year, Plaintiff waited until September 27, 2021 to serve discovery 24 requests on Defendants UCOMMG, LLC and Unified Communications Group, Inc. The 25 overbroad discovery requests sought confidential and irrelevant documents related to the entities’ 26 business operations, customers, and employees. Plaintiff never sought jurisdictional discovery 27 in the nine months prior and had previously filed an Opposition to the Nonresident Defendants’ 28 /// 1 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 1 motion to dismiss on personal jurisdiction grounds in federal court without claiming it required 2 jurisdictional discovery. 3 6. On October 29, 2021, UCOMMG and Unified served responses to the discovery 4 requests that solely sought information relating to jurisdiction and served objections to the 5 remainder of the requests. 6 7. On November 2, 2021, Plaintiff served discovery requests on Defendants Kenneth 7 Newbatt, Mitchell Lipkin, and Michael Bellas. To date, Plaintiff has not propounded any 8 discovery requests on Defendant Bianca Newbatt. 9 8. On December 3, 2021, this Court issued a ruling continuing the Nonresident 10 Defendants’ motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional 11 discovery. The Court set a supplemental briefing schedule requiring Plaintiff to serve its 12 supplemental opposition on or before February 18, 2022 and the Nonresident Defendants to file 13 a supplemental reply on or before February 28, 2022. In pertinent part, the Court’s ruling stated: 14 “To the extent that any discovery disputes arise, the parties are expected to proceed with 15 diligence so that jurisdictional discovery is completed to meet the deadlines for the 16 supplemental briefing.” The Court also acknowledged that the scope of the discovery sought 17 by Plaintiff is limited due to the mandatory trade secret disclosures required by Code of Civil 18 Procedure section 2019.210. A true and correct copy of the Court’s ruling is attached hereto as 19 Exhibit A. 20 9. In accordance with the Court’s instructions to proceed with diligence, on 21 December 9, 2021, Defendants Kenneth Newbatt, Michell Lipkin, and Michael Bellas served 22 responses to the discovery requests propounded by Plaintiff that sought purely jurisdictional 23 information. Defendants Newbatt, Lipkin, and Bellas objected to the remainder of Plaintiff’s 24 discovery requests. Plaintiff did not make any attempt to meet and confer with Defendants 25 Newbatt, Lipkin, and Bellas regarding the discovery responses and Plaintiff’s motion to compel 26 deadline has already passed. 27 10. After the Court issued its ruling on December 3, 2021, Plaintiff waited over a 28 week until Saturday, December 11, 2021 to send a two paragraph “meet-and-confer” email on 2 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 1 Defendants UCOMMG and Unified Communications Group, Inc.’s discovery responses that 2 utterly failed to comply with the meet and confer requirements set forth in Code of Civil 3 Procedure section 2016.040. Specifically, Plaintiff sought to meet and confer on 24 4 interrogatories and 23 requests for production addressed to two different defendants, but Plaintiff 5 failed to address any specific discovery responses or objections with which Plaintiff took issue. 6 True and correct copies of Plaintiff’s counsel’s December 11, 2021 emails are attached hereto as 7 Exhibit B. 8 11. I responded to Plaintiff’s email on Tuesday, December 14, 2021, at 1:44 p.m. 9 explaining that Plaintiff had failed to comply with the meet and confer requirements set forth in 10 Code of Civil Procedure section 2016.040. I requested Plaintiff identify the requests upon which 11 it intends to move to compel and the authority upon which Plaintiff contends that Defendants’ 12 responses were improper. I also invited a phone call to telephonically meet and confer that 13 afternoon. A true and correct copy of my December 14, 2021 email correspondence is attached 14 hereto as Exhibit C. 15 12. Plaintiff’s counsel responded the same day, stating that the purpose of the 16 December 11 email was not to “discuss the propriety of the discovery requests” but instead was 17 only to ask whether Plaintiff could have an extension of time to file motions to compel. Plaintiff’s 18 counsel then demanded an extension on its motion to compel deadlines by 45 days. At the time, 19 Plaintiff’s deadline to file a motion to compel on UCOMMG and Unified’s discovery responses 20 was only two days later on December 16, 2021. A true and correct copy of Plaintiff’s counsel’s 21 correspondence is attached hereto as Exhibit D. 22 13. I immediately responded and informed Plaintiff’s counsel that a 45-day extension 23 would be until approximately February 1, 2021. I reminded Plaintiff that its supplemental 24 opposition was due by February 18 and a 45-day extension would not leave enough time to 25 complete briefing and for the court to issue a ruling on any discovery disputes related to the 26 jurisdictional discovery. I stated that Defendants would not agree to postpone the supplemental 27 briefing deadlines or the March 11 hearing date on the motion to quash and granted a limited 2- 28 week extension on the motion to compel deadlines to allow the parties time to meet and confer. 3 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 1 A true and correct copy of the email exchange between Plaintiff’s counsel and my office is 2 attached hereto as Exhibit E. 3 14. In response, Plaintiff requested an additional five-day extension on the motion to 4 compel deadline. I acquiesced to the extension but expressly reminded Plaintiff’s counsel that 5 the Court instructed the parties to proceed with diligence on the jurisdictional discovery. I also 6 reiterated that Defendants would not agree to continue the briefing schedule or hearing on the 7 motion to quash. A true and correct copy of the email exchange between Plaintiff’s counsel and 8 my office is attached hereto as Exhibit F. 9 15. Plaintiff then waited an additional week before sending four meet and confer 10 letters at 11:53 p.m. on Wednesday, December 22, 2021 and demanding supplemental responses 11 within one business day by close of business on Monday, December 27, 2021, despite knowing 12 that Friday, December 24 was a court holiday. Again, Plaintiff’s meet and confer letters were 13 utterly deficient and merely copied and pasted the same six sentences as to each and every request 14 at issue rather than providing any substantive analysis or discussion on how the discovery 15 responses were not sufficient, how each request was narrowly tailored to demonstrate 16 jurisdiction, or why the requests did not overlap with Plaintiff’s allegations that Defendants 17 misappropriated or used Plaintiff’s trade secret or “confidential” information. True and correct 18 copies of Plaintiff’s meet-and-confer letters are attached hereto as Exhibit G. 19 16. Three business days later, on December 29, I responded to Plaintiff’s inadequate 20 meet and confer letters. Despite Plaintiff’s failure to properly meet and confer, UCOMMG and 21 Unified agreed to supplement its objections and responses to several Special Interrogatories to 22 more closely track the objections and responses set forth in the individual defendants’ discovery 23 responses to the same or similar requests (which were served after Defendants had the benefit of 24 the Court’s December 3, 2021 ruling which expressly states that Plaintiff’s “eliminat[ion] of trade 25 secret claims from the SAC does not necessarily imply that the limitation of section 2019.210 26 does not apply to the remaining causes of action.”). Specifically, UCOMMG and Unified 27 responded to or agreed to respond to Form Interrogatories - General Nos. 1.1, 3.1, 3.2, 3.3, 3.4, 28 3.5, 3.6, 3.7 and Special Interrogatories Nos. 2, 13, 14, 17, 18, 22, 23 and 24. As to the remaining 4 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 1 discovery requests, Defendants delineated the multiple reasons why the requests were improper 2 and why Defendants objections were appropriate A true and correct copy of my meet-and-confer 3 letter is attached hereto as Exhibit H. 4 17. Plaintiff’s counsel sent an additional meet and confer letter on December 30, 5 2021, (again, the day before a Court holiday on December 31, 2021) and demanded a response 6 by the end of the day. A true and correct copy of Plaintiff’s letter is attached hereto as Exhibit 7 I. 8 18. On January 3 and 4, I responded to several emails from Plaintiff’s counsel in 9 which he requested additional extensions of time to file a motion to compel. I continued to 10 explain why Plaintiff’s discovery requests were improper and overbroad. I declined to grant any 11 additional extensions on Plaintiff’s motion to compel deadlines given the Court’s order to act 12 with diligence in order to complete any discovery prior to the supplemental briefing deadline. A 13 true and correct copy of the email exchange between Plaintiff’s counsel and my office is attached 14 hereto as Exhibit J. 15 19. On January 4, 2022, Plaintiff filed a motion to compel further responses to special 16 interrogatories and requests for production as to Defendant UCOMMG, LLC only. Plaintiff did 17 not file any motions with regard to any of the other Nonresident Defendants. 18 I declare under penalty of perjury, under the laws of the State of California, that the 19 foregoing is true and correct. Executed on this 8th day of February, 2022, at San Diego, 20 California. 21 22 Kathryn M. Evans 23 24 25 26 27 28 5 EVANS DEC ISO DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ FP 43057681.1 EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 12/03/2021 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Kristi Temple Dept: SB Dept 4 Deputy Sheriff: Kent McBride Court Reporter: Michelle Sabado Case No: 20CV03877 Butler America LLC vs UCOMMG LLC et al Parties Present: Cameron Totten Plaintiff’s Attorney Kathryn Evans Defendant’s Attorney NATURE OF PROCEEDINGS: Motion: Quash Service of Summons for Lack of Personal Jurisdiction; Demurrer to FAC Counsel presented argument. The Court adopted the tentative ruling as follows: RULING: (1) For the reasons set forth herein, the demurrer of defendants WesTele and Cynthia Baker to the first amended complaint is deemed sustained with leave to amend with plaintiff Butler America, LLC’s second amended complaint already on file deemed filed pursuant to that leave to amend. For purposes of determining when a response is due, the second amended complaint is deemed filed and served (without any extension of time for manner of service) as of December 3, 2021. The demurrer of specially appearing defendants UCOMMG, LLC, Kenneth W. Newbatt, Unified Communications Group, Inc., Bianca Newbatt, Mitchell Lipkin, and Michael Bellas to the first amended complaint is ordered off calendar as moot by the filing of the second amended complaint. (2) For the reasons set forth herein, the motion of specially appearing defendants UCOMMG, LLC, Kenneth W. Newbatt, Unified Communications Group, Inc., Bianca Newbatt, Mitchell Lipkin, and Michael Bellas to quash service of summons based on the lack of personal jurisdiction is continued to March 11, 2022, at 10:00 a.m. to permit plaintiff Butler America, LLC, to conduct jurisdictional discovery. Plaintiff Butler America, LLC, shall file and serve its supplemental opposition on or before February 18, 2022; moving parties may file and serve a supplemental reply on or before February 28, 2022. To the extent that any discovery disputes arise, the parties are expected to proceed with diligence so that jurisdictional discovery is completed to meet the deadlines for the supplemental briefing. Background: SC-2411 (Revised July 1, 2013) MINUTE ORDER On November 20, 2020, plaintiff Butler America, LLC (Butler America) filed its original complaint in this action asserting eight causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) misappropriation of trade secrets (Civ. Code, § 3426 et seq.); (4) misappropriation of trade secrets (common law); (5) conversion; (6) intentional interference with contractual relations; (7) intentional interference with prospective economic advantage; and (8) unfair business practices (Bus. & Prof. Code, § 17200 et seq.). On January 4, 2021, defendants UCOMMG, LLC (UCOMMG) and Kenneth W. Newbatt (K Newbatt) removed this matter to federal court. While this matter was before the United States District Court, defendants UCOMMG, K Newbatt, Bianca Newbatt (B Newbatt), Mitchell Lipkin, Michael Bellas, and WesTele Utility Solutions, LLC (WesTele) filed a motion to dismiss on March 26, 2021. (Evans decl. re pleadings, exhibit A.) Also on March 26, defendant Jimmie Garret Baker, Jr. (J Baker) filed a motion to compel arbitration. (Evans decl. re pleadings, exhibit B.) On April 5, Butler America filed its opposition to the motion to compel arbitration. (Totten decl. re pleadings, exhibit A.) On April 12, 2021, J Baker filed his reply as to the motion to compel arbitration. (Evans decl. re pleadings, exhibit C.) Still in federal court, on April 16, 2021, Butler America filed its first amended complaint (FAC). (Totten decl. re pleadings, exhibit B.) The FAC asserts five causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) misappropriation of trade secrets (Civ. Code, § 3426 et seq.); (4) intentional interference with prospective economic advantage; and (5) unfair business practices (Bus. & Prof. Code, § 17200 et seq.). As a consequence of the filing of the FAC, by order on April 19, the District Court denied as moot defendants’ motion to dismiss the original complaint. (Evans decl. re pleadings, exhibit D.) On April 30, defendants filed a motion to dismiss the FAC. (Evans decl. re pleadings, exhibit E.) Butler America filed its opposition to the motion to dismiss on May 17. (Totten decl. re pleadings, exhibits F, G.) Defendants filed their reply on May 24. (Evans decl. re pleadings, exhibit F.) On July 28, 2021, the District Court, without having ruled on the motion to dismiss, ordered the parties to show cause why the action should not be remanded to state court for lack of federal subject matter jurisdiction. (Evans decl. re pleadings, exhibit G [order of remand].) On August 3, the District Court issued its order remanding this action to this court and denied the motion to dismiss as moot. (Ibid.) The order of remand was received and filed in this court on August 17. On September 20, defendants UCOMMG, Unified Communications Group, Inc. (UCG), K Newbatt, B Newbatt, Lipkin, and Bellas (collectively, specially appearing defendants) filed their motion to quash service of summons for lack of personal jurisdiction. Concurrently with the motion to quash, the specially appearing defendants, together with defendants WesTele and Cynthia Baker (C Baker) (the generally appearing defendants), filed their demurrer to the FAC. (Note: The specially appearing defendants and the generally appearing defendants are collectively referred to simply as the “defendants.”) On October 5, 2021, the court entered its order on the stipulation of Butler America and J Baker to order to arbitration the claims as between those parties, and staying the action as between them pending disposition of the arbitration. On November 5, 2021, defendants filed their motion for terminating sanctions or, alternatively, for a protective order and for monetary sanctions. This motion is now set for hearing on February 18, 2022. On November 15, 2021, Butler America filed its second amended complaint (SAC) asserting six causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) SC-2411 (Revised July 1, 2013) MINUTE ORDER conversion; (4) intentional interference with contractual relations; (5) intentional interference with prospective economic advantage; and (6) unfair business practices (Bus. & Prof. Code, § 17200 et seq.). On November 18, 2021, Butler America filed its opposition to the motion to quash and to the demurrer. In opposition to the motion to quash, Butler America asserts that the filing of the SAC renders the motion moot or, alternatively, the motion should be continued to give Butler America the opportunity to conduct jurisdictional discovery. In opposition to the demurrer to the FAC, Butler America argues that the filing of the SAC renders the demurrer to the FAC moot. On November 19, 2021, defendants filed their motion to strike the SAC on the grounds that Butler America failed to seek leave to file the SAC. This motion is now set for hearing on February 18, 2022. Also on November 19, defendants filed their motion for sanctions pursuant to Code of Civil Procedure section 128.7. This motion is now set for hearing on February 25, 2022. Analysis: (1) Demurrer to FAC The demurrer to the FAC now before the court was brought by both the specially appearing defendants and the generally appearing defendants. The demurrer by the generally appearing defendants is not subject to the issues relating to personal jurisdiction raised by the specially appearing defendants’ motion to quash service of summons. Accordingly, the court will first address the demurrer as to the generally appearing defendants. As the parties have noted, Butler America has filed a second amended complaint after the filing of the demurrer to the FAC was filed. Ordinarily, the filing of an amended complaint renders moot a demurrer to a prior complaint. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) The issue raised by defendants’ motion to strike the SAC (which motion is not now before the court) is that the SAC was not filed with leave of court. “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) The SAC is, as its title indicates, the second amended complaint. Butler America filed its first amended complaint in the federal court and, upon remand, the FAC became the operative pleading in this court. As a consequence, the SAC was not filed as of right pursuant to section 472. The court construes the filing of the SAC as a concession that the demurrer to the FAC is in some part meritorious and the SAC is intended as the amended pleading to be offered in response to leave to amend after the sustaining of the demurrer to the FAC. Because this is the first demurrer to be heard by this court, the court would ordinarily grant leave to amend. As so construed, the court deems the SAC as filed following the sustaining of the demurrer to the FAC with leave to amend. For purposes of filing a response to the SAC, the court deems the SAC filed and served (without any extension as to means of service) as of the date of this hearing and thus the time for a response runs from December 3, 2021. Nothing in this ruling is to be construed as determining any particular argument made in the demurrer to the FAC. The court will address any issues regarding the sufficiency of the allegations as they appear in the SAC if and when challenged by an appropriate motion or pleading. Based upon the filing of the SAC in response to the demurrer of the generally appearing defendants, the demurrer to the FAC by the specially appearing parties is moot. SC-2411 (Revised July 1, 2013) MINUTE ORDER (2) Motion to Quash Service of Summons The filing of the SAC may or may not moot the motion of the specially appearing defendants to quash service of summons on the grounds of lack of personal jurisdiction. As noted above, the SAC changes the causes of action asserted and deletes the causes of action for misappropriation of trade secrets. In opposition to the motion, Butler America notes that it has initiated some jurisdictional discovery, the effect of which appears to be disputed, and, if the court is otherwise inclined to grant the motion to quash, requests a continuance to obtain jurisdictional discovery. “[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction. [Citation.] The plaintiff has the right to conduct discovery with regard to the issue of jurisdiction to develop the facts necessary to sustain this burden.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) The court is not going to engage in an iterative process by which Butler America presents some evidence to support its position and, if it is not enough, then try again. Butler America is entitled to present all of its evidence and then have the court determine whether, when all of the evidence presented by all parties is considered, Butler America has met its evidentiary burden. Since Butler America asserts that it needs discovery to present all of its evidence, this matter will be continued to permit that discovery and for the parties to file supplemental papers. The court is also aware that the scope of discovery is an issue because of the limitations of Code of Civil Procedure section 2019.210, which provides: “In any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code), before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity subject to any orders that may be appropriate under Section 3426.5 of the Civil Code.” (Code Civ. Proc., § 2019.210.) The limitation of section 2019.210 applies (1) to an action alleging the misappropriation of a trade secret and (2) before commencing discovery relating to the trade secret. With respect to first issue, “Code of Civil Procedure section 2019.210 …, which provides that discovery relating to a trade secret may not commence until the trade secret is identified with ‘reasonable particularity,’ is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) [citation], for misappropriation of the trade secret, but extends to any cause of action which relates to the trade secret.” (Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 830.) Thus, eliminating the misappropriation of trade secret claims from the SAC does not necessarily imply that the limitation of section 2019.210 does not apply to the remaining causes of action. With respect to the second issue, “discovery relating to the trade secret” may or may not overlap with jurisdictional discovery. “The purpose of section 2019.210 is as follows: ‘First, it promotes well- investigated claims and dissuades the filing of meritless trade secret complaints. Second, it prevents plaintiffs from using the discovery process as a means to obtain the defendant’s trade secrets. [Citations.] Third, the rule assists the court in framing the appropriate scope of discovery and in determining whether plaintiff’s discovery requests fall within that scope. [Citations.] Fourth, it enables defendants to form complete and well-reasoned defenses, ensuring that they need not wait until the eve SC-2411 (Revised July 1, 2013) MINUTE ORDER of trial to effectively defend against charges of trade secret misappropriation. [Citations.]’ [Citation.]” (Advanced Modular Sputtering, Inc. v. Superior Court, supra, 132 Cal.App.4th at pp. 833–834.) Whether discovery ostensibly aimed at jurisdictional issues would fall within discovery prohibited by section 2019.210 prior to trade secret identification would have to be determined based upon the nature of the discovery sought applying the legal standards consistent with the purpose of section 2019.210. The court does not have the occasion to make any determinations as to the propriety of any particular discovery as the matter is now presented to the court. The court expects, however, that if any disputes arise as to the propriety of discovery that the parties will exhaustively meet and confer to avoid the necessity of court intervention to the extent practicable. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER EXHIBIT B O'Connor, Kristy From: Cameron Totten Sent: Saturday, December 11, 2021 5:18 PM To: Evans, Katie Cc: Santiago, Shayna Balch Subject: Butler v. Unified, et al. -- Defendant UCOMMG, LLC's Responses to Plaintiff's First Set of Special Interrogatories CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Katie, This email is an attempt to meet and confer with regard to Defendant UCOMMG, LLC’s Responses to Plaintiff’s First Set of Special Interrogatories, Nos. 1, 4‐7, and 9‐27. In light of the Court’s ruling on December 3, 2021, Plaintiff is entitled to discovery regarding jurisdiction. Said interrogatories were specifically drafted to relate only to jurisdictional issues. Moreover, the interrogatories do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its misappropriation of trade secrets cause of action. Accordingly, complete and straightforward responses are required. Cal. Code Civ. Proc. §§ 2030.220(a) and (b). Please provide supplemental responses on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you. Sincerely, Cameron H. Totten, Esq. Attorney CHORA YOUNG & MANASSERIAN LLP A Judgment Enforcement Firm 650 Sierra Madre Villa Ave., Ste. 304 Pasadena, CA 91107 Tel.: (626) 744‐1838 Fax: (626) 744‐3167 Cameron@cym.law Chora Young LLP ‐ Pasadena Judgment Enforcements 1 O'Connor, Kristy From: Cameron Totten Sent: Saturday, December 11, 2021 5:20 PM To: Evans, Katie Cc: Santiago, Shayna Balch Subject: Butler v. Unified, et al. -- Defendant Unified Communications Group, Inc.'s Responses to Plaintiff's First Set of Special Interrogatories CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Katie, This email is an attempt to meet and confer with regard to Defendant Unified Communications Group, Inc.’s Responses to Plaintiff’s First Set of Special Interrogatories, Nos. 1, 4‐7, and 9‐25. In light of the Court’s ruling on December 3, 2021, Plaintiff is entitled to discovery regarding jurisdiction. Said interrogatories were specifically drafted to relate only to jurisdictional issues. Moreover, the interrogatories do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its misappropriation of trade secrets cause of action. Accordingly, complete and straightforward responses are required. Cal. Code Civ. Proc. §§ 2030.220(a) and (b). Please provide supplemental responses on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you. Sincerely, Cameron H. Totten, Esq. Attorney CHORA YOUNG & MANASSERIAN LLP A Judgment Enforcement Firm 650 Sierra Madre Villa Ave., Ste. 304 Pasadena, CA 91107 Tel.: (626) 744‐1838 Fax: (626) 744‐3167 Cameron@cym.law Chora Young LLP ‐ Pasadena Judgment Enforcements 1 O'Connor, Kristy From: Cameron Totten Sent: Saturday, December 11, 2021 5:37 PM To: Evans, Katie Cc: Santiago, Shayna Balch Subject: Butler v. Unified, et al. -- Defendant UCOMMG, LLC's Responses to Plaintiff's First Set of Requests for Production of Documents CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Katie, This email is an attempt to meet and confer with regard to Defendant UCOMMG, LLC’s Responses to Plaintiff’s First Set of Requests for Production of Documents, Nos. 1‐23. In light of the Court’s ruling on December 3, 2021, Plaintiff is entitled to discovery regarding jurisdiction. Said requests were specifically drafted to relate only to jurisdictional issues. Moreover, the requests do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its misappropriation of trade secrets cause of action. Accordingly, further responses are required. Accordingly, please provide supplemental responses pursuant to California Code of Civil Procedure Sections 2031.210 and/or 2031.220 on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you. Sincerely, Cameron H. Totten, Esq. Attorney CHORA YOUNG & MANASSERIAN LLP A Judgment Enforcement Firm 650 Sierra Madre Villa Ave., Ste. 304 Pasadena, CA 91107 Tel.: (626) 744‐1838 Fax: (626) 744‐3167 Cameron@cym.law Chora Young LLP ‐ Pasadena Judgment Enforcements 1 O'Connor, Kristy From: Cameron Totten Sent: Saturday, December 11, 2021 5:39 PM To: Evans, Katie Cc: Santiago, Shayna Balch Subject: Butler v. Unified, et al. -- Defendant Unified Communications Group, Inc.’s Responses to Plaintiff's First Set of Requests for Production CAUTION: This email originated from outside of the Firm. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Katie, This email is an attempt to meet and confer with regard to Defendant Unified Communications Group, Inc.’s Responses to Plaintiff’s First Set of Requests for Production of Documents, Nos. 1‐22. In light of the Court’s ruling on December 3, 2021, Plaintiff is entitled to discovery regarding jurisdiction. Said requests were specifically drafted to relate only to jurisdictional issues. Moreover, the requests do not relate to any trade secrets. Additionally, Plaintiff has withdrawn its misappropriation of trade secrets cause of action. Accordingly, further responses are required. Accordingly, please provide supplemental responses pursuant to California Code of Civil Procedure Sections 2031.210 and/or 2031.220 on or before Tuesday, December 14, 2021. Alternatively, if you would like to meet and confer further or need additional time to provide supplemental responses, please let me know if Plaintiff can have a thirty‐day extension to file a motion to compel by Monday, December 13, 2021. Thank you. Sincerely, Cameron H. Totten, Esq. Attorney CHORA YOUNG & MANASSERIAN LLP A Judgment Enforcement Firm 650 Sierra Madre Villa Ave., Ste. 304 Pasadena, CA 91107 Tel.: (626) 744‐1838 Fax: (626) 744‐3167 Cameron@cym.law Chora Young LLP ‐ Pasadena Judgment Enforcements 1 EXHIBIT C O'Connor, Kristy From: Evans, Katie Sent: Tuesday, December 14, 2021 1:44 PM To: Cameron Totten Cc: Santiago, Shayna Balch Subject: RE: Butler v. Unified, et al. -- Defendants Responses to Plaintiff's Written Discovery Requests Hi Cameron, You sent your first meet and confer correspondence on these discovery responses on Saturday night. It is now Tuesday midday. We are happy to meet and confer, however sending six emails in less than two business days and demanding a response “immediately” is not reasonable. Your meet and confer correspondence does not comply with Code of Civil Procedure section 2016.040, which requires “a reasonable and good faith attempt at an informal resolution of each issue.”