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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 02/18/2022 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Kristi Temple Dept: SB Dept 4
Deputy Sheriff: David Allcott
Court Reporter: Shelley Cockrell 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 Termination Sanctions or in the Alternative for Protective
Order; Motion to Strike SAC
Counsel presented argument. The Court adopted the tentative ruling as follows:
RULING:
The motion to strike is denied as moot. The Court declines to provide any advisory ruling on the impact
of its ruling on the demurrer to the FAC upon defendants' pending motion for sanctions pursuant to Code
of Civil Procedure section 128.7. It will, however, continue the hearing on that motion from February 25,
2022, to March 18, 2022, to permit defendants an opportunity to evaluate whether they wish to proceed
with the motion in its current form, or to withdraw it and potentially file a new motion to reflect the current
posture of the case. If defendants determine that they will go forward on that date with the motion in its
current form, they must advise plaintiff of that fact no later than Monday, February 28, 2022, in order for
plaintiff to have sufficient opportunity to respond to the motion under the current posture of the case.
To the extent defendants' second motion seeks terminating sanctions, it is denied. To the extent it seeks
a protective order precluding all discovery, it is denied. In the interests of justice, and to prevent the case
from further devolving into chaos, the Court will issue a stay of all discovery other than that being
conducted to address jurisdictional issues, pending resolution of the motion to quash, in the manner
outlined below.
Finally, the Court directs and orders plaintiff's counsel to comply with the provisions of Local Rule 1308
no later than March 4, 2021.
Background:
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
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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, Mitchell Lipkin, Michael Bellas, and WesTele Utility Solutions, LLC filed a motion to dismiss on
March 26, 2021. Also on March 26, defendant Jimmie Garret Baker, Jr. (J Baker) filed a motion to
compel arbitration. On April 5, Butler America filed its opposition to the motion to compel arbitration. On
April 12, 2021, J Baker filed his reply as to the motion to compel arbitration.
Still in federal court, on April 16, 2021, Butler America filed its first amended complaint (FAC). The FAC
asserted 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. On April 30, defendants filed a motion to dismiss
the FAC. Butler America filed its opposition to the motion to dismiss on May 17. Defendants filed their
reply on May 24.
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. 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, 2021, 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. On September 22, 2021, the specially appearing
defendants, together with defendants WesTele and Cynthia Baker (C Baker) (the generally appearing
defendants), filed their demurrer to the FAC.
Also on September 22, 2021, defendants filed the declaration of their counsel, in compliance with the
requirements of Santa Barbara Superior Court Local Rule 1308 [Procedures on Remand from Federal
Court]. It does not appear that plaintiff filed the required declaration.
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. The motion seeks an order dismissing the action with
prejudice based upon its failure to comply with Code of Civil Procedure section 2019.210, or alternatively
for a protective order preventing Butler America from engaging in discovery, unless and until plaintiff
complies with Section 2019.210, and for sanctions of $6,150.00 against plaintiff and its attorneys. This
motion is set for hearing on February 18, 2022.
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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)
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.).
Notably, the cause of action for misappropriation of trade secrets, which had been alleged in the FAC,
was eliminated from the SAC.
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 asserted 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 argued 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, setting the hearing on the motion for February 18, 2022.
Also on November 19, 2021, defendants filed their motion for sanctions pursuant to Code of Civil
Procedure section 128.7, based upon plaintiff's pursuit of the action against them without evidence to
support its claims, and Butler America's failure to correct in its FAC the deficiencies defendants contend
they had previously outlined. This motion is now set for hearing on February 25, 2022.
On December 3, 2021, the Court deemed the demurrer to the FAC sustained, with leave to amend, and
the SAC previously filed by Butler America deemed filed pursuant to that leave to amend. For purposes
of determining when a response was due, the Court deemed the SAC to have been filed and served as
of the date of the demurrer hearing.
Also on December 3, 2021, the Court continued the hearing on the motion to quash service of summons
filed by specially appearing defendants UCOMMG, LLC, Kenneth W. Newbatt, Unified Communications
Group, Inc., Bianca Newbatt, Mitchell Lipkin, and Michael Bellas, based upon the lack of personal
jurisdiction to March 11, 2022, to permit Butler America to conduct jurisdictional discovery. It further
specified dates for supplemental opposition and supplemental reply, and set forth its expectation that the
parties would proceed with diligence to complete the jurisdictional discovery. In doing so, the Court noted
that it was aware that the scope of discovery is an issue because of the limitations of Code of Civil
Procedure section 2019.210 which, in any action alleging the misappropriation of a trade secret under
the Uniform Trade Secrets Act, requires the party to identify the trade secrets with reasonable
particularity, prior to commencing any discovery related to the trade secret(s). The Court further noted
that since there was authority that the limitation extended to any cause of action which related to the
trade secret, the elimination of the misappropriation cause of action would not necessarily mean that the
2019.210 limitation would not apply to the remaining causes of action. It further noted that it had no
occasion to make any determinations as to the propriety of any particular discovery as the matter was
currently presented to the Court.
On January 3, 2022, defendants filed their demurrer to Butler America's SAC, setting the hearing on the
demurrer for March 25, 2022.
On January 4, 2022, Butler America filed a motion to compel defendants Unified Communications Group,
Inc. and UCOMMG, LLC to provide further responses to plaintiff's first set of special interrogatories, and
a motion to compel the same defendants to provide further responses to plaintiffs first set of demands for
production. The hearings on both motions were set for April 1, 2022.
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On February 8, 2022, Butler America presented an ex parte application to continue the hearing date on
the motion to quash service of summons, based upon lack of California jurisdiction, from March 11, 2022,
to May 20, 2022, or thereafter, and to re-set the dates for filing supplemental opposition and reply
papers. The application was based upon Butler America's inability to obtain a ruling on its motions to
compel further responses to jurisdictional discovery, prior to the hearing date on the motion to quash.
On February 9, 2022, the Court granted the ex parte application, setting the hearing date on the motion
to quash on May 20, 2022, the date for plaintiff to file supplemental opposition on April 29, 2022, and the
date for defendants to file supplemental reply on May 9, 2022.
Currently before the Court for hearing are (1) defendants' motion to strike plaintiff's SAC; and (2)
defendants' motion for terminating sanctions or for protective order, based upon plaintiff's alleged
conduct of merits discovery before complying with the requirements of Code of Civil Procedure section
2019.210 in identifying with reasonable particularity the trade secrets at issue in the case. Plaintiff has
opposed both motions.
ANALYSIS: Motion to strike SAC The motion is denied as moot. In ruling on the demurrer to the FAC,
the Court found that plaintiff's unauthorized filing of the SAC was an acknowledgment that the demurrer
had merit in some respect. As a result, it sustained the demurrer with leave to amend, and deemed the
already-filed SAC to be that amendment, also deeming it to have been filed and served on the date of
the demurrer hearing, for purposes of determining when response to the SAC would be due. As a result,
the SAC is no longer an unauthorized pleading, and the sole basis for the motion to strike has been
eliminated. Consequently, the motion to strike is moot, and will be denied on that basis.
In spite of their reply acknowledgement that the motion to strike would likely now be denied, defendants
refused to take the motion to strike the FAC off calendar, appearing in their reply to seek some sort of
advisory ruling by the Court on what impact the Court's demurrer rulings had on their pending motion for
128.7 sanctions. Defendants contend that plaintiff created the problem by the unauthorized filing of the
SAC. The Court notes that defendants filed their 128.7 sanction motion directed toward the FAC, after
the SAC had been filed. Presumably, defendants were hoping that their motion to strike would preserve
the integrity of their sanction motion, by eliminating the SAC. That did not happen.
The Court does not give advisory rulings. Rather, the duty of a trial court is to decide actual
controversies, and not give opinions upon moot questions or abstract propositions. (Colony Cove
Properties, LLC v. City of Carson (2010) 187 Cal.App.4th 1487, 1509.) The Court made its previous
rulings without regard to matters which, although they may have been pending, were not properly before
it for consideration. The impact of those rulings on pending matters is also not properly before the Court
for consideration at the current time, and the Court declines to make any comment thereon.
The Court will, however, continue the hearing on defendants' 128.7 sanctions motion to allow defendants
an opportunity to evaluate the circumstances and determine whether the motion can or should proceed
to hearing in its current form, or be withdrawn and potentially refiled to reflect the current posture of the
case. The Court will continue the hearing on that motion to March 18, 2022. If defendants determine that
they will go forward on that date with the motion in its current form, they must advise plaintiff of that fact
no later than Monday, February 28, 2022, in order for plaintiff to have sufficient opportunity to respond to
the motion under the current posture of the case.
Motion for terminating sanctions or protective order To the extent defendants' motion seeks
terminating sanctions, it is denied. To the extent it seeks a protective order precluding all discovery, it is
denied, particularly given this Court's prior authorization for plaintiff to conduct jurisdictional discovery. In
the interests of justice, and as a matter of case management, the Court will, however, stay all discovery
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related to the merits of the action, pending resolution of the motion to quash for lack of jurisdiction. In
doing so, the Court is not finding that discovery inquiries which overlap jurisdictional and trade secrets
issues absolutely do not need to be answered; rather, if the parties are not able to resolve discovery
disputes after good faith meet and confer efforts, the Court will determine the nature and scope of the
information which must be provided in response to the discovery. The Court expressly reserves the right
to further continue the hearing on the motion to quash, to the extent that due process and the need to
resolve discovery disputes related to jurisdictional discovery require that result. The requests for
monetary sanctions are denied.
Code of Civil Procedure section 2019.210 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.
Defendants' sanction motion was filed when the FAC, which contained a cause of action for
misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA) was the operative
pleading. Ten days after the motion was filed, plaintiff filed its SAC, in which it eliminated its UTSA
misappropriation cause of action. Even so, the SAC continued to allege that all defendants had
converted plaintiff's confidential information and, in doing so, had intentionally interfered with plaintiff's
contractual relations and its prospective economic advantage, and committed unfair business practices.
The SAC also alleges that two individual defendants who were its former employees, and who had
executed Employment Agreements with provisions related to Trade Secret/Confidential Information and
nondisclosure agreements had breached those contracts and had, through their alleged conduct,
breached the covenants of good faith and fair dealing implied in those contracts.
Defendants' motion seeks terminating sanctions against Butler America based upon its failure to comply
with the trade secret identification requirements set forth in Code of Civil Procedure section 2019.210.
Alternatively, it seeks a protective order precluding Butler America from conducting any discovery in this
action unless or until it complies with the trade secret identification requirements of Section 2019.210.
The motion also seeks monetary sanctions against plaintiff and its attorneys in the amount of $6,150.00.
Defendants contend that plaintiff has completely failed to comply with the requirements of Section
2019.210. Plaintiff counters that its disclosures in federal court, along with the allegations of its FAC, fully
complied with Section 2019.210, and further that its elimination of the UTSA cause of action from its SAC
renders the entire matter of compliance with Section 2019.210 moot, since it applies only in actions
alleging the misappropriation of a trade secret under the UTSA. In their reply papers, defendants raise
for the first time their contention that the requirements of Section 2019.210 apply in this case regardless
of the elimination of the UTSA cause of action.
The issue of whether Section 2019.210 continues to apply to this action, in light of the elimination of the
UTSA cause of action from the SAC, has not been properly placed before this Court, and cannot be
determined based upon the information currently before the Court. Before the Court could properly
resolve the issue, the parties would need to present it in some fashion in moving papers (not for the first
time in a reply), which fully articulated the legal and factual arguments for why Section 2019.210 should
or should not continue to apply to this action. To the extent defendants seek the determination that it
continues to apply, their papers should also specifically explain how the disclosures made by plaintiff to
date (in pleadings and in the disclosures purportedly made in the federal court) are insufficient to meet
the "reasonable particularity" standard required under Section 2019.210.
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The Court has neither reviewed nor evaluated the pending demurrer to the SAC, and has no knowledge
whether the issue is addressed in any manner therein (whether characterized as a preemption of the
claims by the UTSA, or otherwise). It could also permissibly come before the Court in a properly drafted
and supported motion for protective order, or in support of or opposition to motions to compel.
While defendants appear to interpret this Court's comments (made in the course of continuing the
hearing on the motion to quash for lack of California jurisdiction) as constituting such a determination,
that is not true. The issue was also not properly before the Court at that time, and the Court was merely
commenting that, based upon the holding in Advanced Modular Sputtering, Inc. v. Superior Court (2005)
132 Cal.App.4th 826, 830, the elimination of the UTSA claim would "not necessarily imply" that the
Section 2019.210 limitation does not apply to the remaining causes of action.
Even if the Court could make that determination at this time, and even if it determined that Section
2019.210 continued to apply to this action, there is currently nothing before the Court that would cause
the court to entertain the prospect of terminating sanctions. The express provisions of Section 2019.210
only prohibit discovery related to the trade secret prior to the identification with reasonable particularity of
the trade secret at issue in the action. The Court understands that defendants made clear while this case
was pending in federal court, that they believed the federal courts required compliance with the
identification requirement at an early stage. This action is no longer pending in the federal courts, and
this court is not bound by federal standards determining the time for compliance with Section 2019.210.
Further, this action is still at the pleading stage, with a demurrer to the SAC remaining to be resolved,
and there exists authority that even in federal actions, compliance with Section 2019.210 is not required
at the pleading stage. (See Meggitt San Juan Capistrano, Inc. v. Younzhong (9th Cir. 2014) 575
Fed.Appx. 801, 803.) By its terms, compliance with Section 2019.210 is only required prior to the conduct
of discovery relating to the trade secret. There is therefore no legal basis for this court to entertain
defendants' motion for terminating sanctions, even if the this Court could, at this time, definitively
determine that Section 2019.210 applies to this case, and that plaintiff's disclosures to date do not
comply with its requirements.
Defendants' motion alternatively seeks a protective order preventing plaintiff from engaging in discovery
unless and until it complies with Section 2019.210. Again, the issue of whether Section 2019.210 applies
to this action is not properly before the Court for resolution, given the timing and contents of defendants'
moving papers. Neither is there sufficient information before the Court from which it could make that
determination.
To the extent the motion seeks an absolute preclusion of any discovery by plaintiff, it is necessarily
denied, in that this Court has already expressly permitted plaintiff to conduct discovery regarding
California jurisdiction over the defendants who are moving to quash service based upon a claim of lack of
jurisdiction.
In ruling on the prior motions, this Court noted that "discovery relating to the trade secret" may or may
not overlap with jurisdictional discovery. It also noted that it did not have any occasion to make any
determinations as to the propriety of any particular discovery, as the matter was then presented to the
court, and noted that it expected the parties to meet and confer to avoid the necessity of court
intervention to the extent practicable.
In making that comment, the Court did not find that defendants had no obligation to respond to any
jurisdictional discovery that might overlap with trade secret discovery. Rather, it merely noted the
possibility of some overlap, and recognized that without the specific discovery requests before it, it could
make no determinations as to the propriety of any individual request.
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Currently, the Court understands that plaintiff has propounded jurisdictional (and potentially other)
discovery. It understands further that defendants have responded to some of the discovery, and refused
to respond to some of the discovery, contending that it impermissibly seeks trade secret discovery. It
also understands that plaintiff has filed motions to compel further responses to the discovery, which are
set for hearing on April 1, 2022.
Given the "zeal" with which the parties have already been litigating this action, and to prevent the case
from further devolving into chaos, the Court will issue a stay of all discovery other than that being
conducted to address jurisdictional issues, pending resolution of the motion to quash. Again, this does
not mean that any discovery which has some amount of overlap with "trade secret" discovery is
automatically precluded; to the extent the parties have good faith disputes over such discovery, they will
be resolved in the course of motions to compel and/or future properly drafted and supported motions for
protective orders. This stay will include the discovery which was served by plaintiff upon the defendants
who are not challenging the court's jurisdiction over them, pending resolution of the motion to quash.
This Court notes that it has twice continued the motion to quash, in order to permit plaintiff to conduct
jurisdictional discovery. This is not a novel concept, and regularly occurs in actions in which defendants
file motions to quash based upon their contention that the State of California has no jurisdiction over
them. Indeed, while this Court's previous comments reflect its desire that the motion to quash should be
handled as expeditiously possible, it will further continue the hearing on the motion to quash if doing so
proves necessary to permit plaintiff to complete its jurisdictional discovery.
Finally, the Court denies both parties' requests for monetary sanctions.
Compliance with Santa Barbara Superior Court Local Rules 1308
Local rule 1308 provides:
After an action is removed to federal court, remand from the federal court to the state court is effected
when the federal court clerk sends a certified copy of the order on remand to the clerk of the superior
court. Documents filed in federal court after removal are not provided to the superior court. To complete
the superior court's file after remand, within 30 days of the filing of the order of remand, each party shall
file a declaration describing the material pleadings that party filed in the federal action and the pertinent
orders or rulings entered in the federal action. Certified or conformed copies of all such pleadings and
papers shall be attached to the declaration.
The parties' compliance with Rule 1308 is critical to the proper conduct of the litigation, in that federal
courts do, upon remand of an action to the state court, provide the state court with any copies of
documents filed in the action while the action was pending in the federal court. As a result, without
compliance with Rule 1308, the court's file remains incomplete in material respects.
Defense counsel complied with the requirements of Rule 1308 by filing the required declaration on
September 22, 2021. That declaration included the material pleadings filed by defendants in the federal
court, and the pertinent orders or rulings entered in the federal action.
Plaintiff has never complied with the requirements of Rule 1308. As a result, this court's file remains
incomplete, and fails to include, among other things, a proper certified or conformed copy of plaintiff's
FAC. That the FAC was attached as an exhibit to defense counsel's pre-demurrer meet-and-confer
declaration, prior to the filing of defendants' demurrer to the FAC, does not cure this critical defect.
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The Court hereby directs and orders plaintiff's counsel to comply with the provisions of Local Rule 1308
no later than March 4, 2021. If counsel fails to do so, the Court intends to issue an Order to Show Cause
why it should not issue one or more of the sanctions and penalties articulated in Code of Civil Procedure
section 575.2(a) or Santa Barbara Superior Court Local Rules 102.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kristi Temple , Deputy
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 02/18/2022 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Kristi Temple Dept: SB Dept 4 Deputy Sheriff: David Allcott Court Reporter: Shelley Cockrell 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 Termination Sanctions or in the Alternative for Protective Order; Motion to Strike SAC Counsel presented argument. The Court adopted the tentative ruling as follows: RULING: The motion to strike is denied as moot. The Court declines to provide any advisory ruling on the impact of its ruling on the demurrer to the FAC upon defendants' pending motion for sanctions pursuant to Code of Civil Procedure section 128.7. It will, however, continue the hearing on that motion from February 25, 2022, to March 18, 2022, to permit defendants an opportunity to evaluate whether they wish to proceed with the motion in its current form, or to withdraw it and potentially file a new motion to reflect the current posture of the case. If defendants determine that they will go forward on that date with the motion in its current form, they must advise plaintiff of that fact no later than Monday, February 28, 2022, in order for plaintiff to have sufficient opportunity to respond to the motion under the current posture of the case. To the extent defendants' second motion seeks terminating sanctions, it is denied. To the extent it seeks a protective order precluding all discovery, it is denied. In the interests of justice, and to prevent the case from further devolving into chaos, the Court will issue a stay of all discovery other than that being conducted to address jurisdictional issues, pending resolution of the motion to quash, in the manner outlined below. Finally, the Court directs and orders plaintiff's counsel to comply with the provisions of Local Rule 1308 no later than March 4, 2021. Background: 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 SC-2411 (Revised July 1, 2013) MINUTE ORDER 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, Mitchell Lipkin, Michael Bellas, and WesTele Utility Solutions, LLC filed a motion to dismiss on March 26, 2021. Also on March 26, defendant Jimmie Garret Baker, Jr. (J Baker) filed a motion to compel arbitration. On April 5, Butler America filed its opposition to the motion to compel arbitration. On April 12, 2021, J Baker filed his reply as to the motion to compel arbitration. Still in federal court, on April 16, 2021, Butler America filed its first amended complaint (FAC). The FAC asserted 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. On April 30, defendants filed a motion to dismiss the FAC. Butler America filed its opposition to the motion to dismiss on May 17. Defendants filed their reply on May 24. 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. 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, 2021, 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. On September 22, 2021, the specially appearing defendants, together with defendants WesTele and Cynthia Baker (C Baker) (the generally appearing defendants), filed their demurrer to the FAC. Also on September 22, 2021, defendants filed the declaration of their counsel, in compliance with the requirements of Santa Barbara Superior Court Local Rule 1308 [Procedures on Remand from Federal Court]. It does not appear that plaintiff filed the required declaration. 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. The motion seeks an order dismissing the action with prejudice based upon its failure to comply with Code of Civil Procedure section 2019.210, or alternatively for a protective order preventing Butler America from engaging in discovery, unless and until plaintiff complies with Section 2019.210, and for sanctions of $6,150.00 against plaintiff and its attorneys. This motion is set for hearing on February 18, 2022. SC-2411 (Revised July 1, 2013) MINUTE ORDER 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) 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.). Notably, the cause of action for misappropriation of trade secrets, which had been alleged in the FAC, was eliminated from the SAC. 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 asserted 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 argued 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, setting the hearing on the motion for February 18, 2022. Also on November 19, 2021, defendants filed their motion for sanctions pursuant to Code of Civil Procedure section 128.7, based upon plaintiff's pursuit of the action against them without evidence to support its claims, and Butler America's failure to correct in its FAC the deficiencies defendants contend they had previously outlined. This motion is now set for hearing on February 25, 2022. On December 3, 2021, the Court deemed the demurrer to the FAC sustained, with leave to amend, and the SAC previously filed by Butler America deemed filed pursuant to that leave to amend. For purposes of determining when a response was due, the Court deemed the SAC to have been filed and served as of the date of the demurrer hearing. Also on December 3, 2021, the Court continued the hearing on the motion to quash service of summons filed by specially appearing defendants UCOMMG, LLC, Kenneth W. Newbatt, Unified Communications Group, Inc., Bianca Newbatt, Mitchell Lipkin, and Michael Bellas, based upon the lack of personal jurisdiction to March 11, 2022, to permit Butler America to conduct jurisdictional discovery. It further specified dates for supplemental opposition and supplemental reply, and set forth its expectation that the parties would proceed with diligence to complete the jurisdictional discovery. In doing so, the Court noted that it was aware that the scope of discovery is an issue because of the limitations of Code of Civil Procedure section 2019.210 which, in any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act, requires the party to identify the trade secrets with reasonable particularity, prior to commencing any discovery related to the trade secret(s). The Court further noted that since there was authority that the limitation extended to any cause of action which related to the trade secret, the elimination of the misappropriation cause of action would not necessarily mean that the 2019.210 limitation would not apply to the remaining causes of action. It further noted that it had no occasion to make any determinations as to the propriety of any particular discovery as the matter was currently presented to the Court. On January 3, 2022, defendants filed their demurrer to Butler America's SAC, setting the hearing on the demurrer for March 25, 2022. On January 4, 2022, Butler America filed a motion to compel defendants Unified Communications Group, Inc. and UCOMMG, LLC to provide further responses to plaintiff's first set of special interrogatories, and a motion to compel the same defendants to provide further responses to plaintiffs first set of demands for production. The hearings on both motions were set for April 1, 2022. SC-2411 (Revised July 1, 2013) MINUTE ORDER On February 8, 2022, Butler America presented an ex parte application to continue the hearing date on the motion to quash service of summons, based upon lack of California jurisdiction, from March 11, 2022, to May 20, 2022, or thereafter, and to re-set the dates for filing supplemental opposition and reply papers. The application was based upon Butler America's inability to obtain a ruling on its motions to compel further responses to jurisdictional discovery, prior to the hearing date on the motion to quash. On February 9, 2022, the Court granted the ex parte application, setting the hearing date on the motion to quash on May 20, 2022, the date for plaintiff to file supplemental opposition on April 29, 2022, and the date for defendants to file supplemental reply on May 9, 2022. Currently before the Court for hearing are (1) defendants' motion to strike plaintiff's SAC; and (2) defendants' motion for terminating sanctions or for protective order, based upon plaintiff's alleged conduct of merits discovery before complying with the requirements of Code of Civil Procedure section 2019.210 in identifying with reasonable particularity the trade secrets at issue in the case. Plaintiff has opposed both motions. ANALYSIS: Motion to strike SAC The motion is denied as moot. In ruling on the demurrer to the FAC, the Court found that plaintiff's unauthorized filing of the SAC was an acknowledgment that the demurrer had merit in some respect. As a result, it sustained the demurrer with leave to amend, and deemed the already-filed SAC to be that amendment, also deeming it to have been filed and served on the date of the demurrer hearing, for purposes of determining when response to the SAC would be due. As a result, the SAC is no longer an unauthorized pleading, and the sole basis for the motion to strike has been eliminated. Consequently, the motion to strike is moot, and will be denied on that basis. In spite of their reply acknowledgement that the motion to strike would likely now be denied, defendants refused to take the motion to strike the FAC off calendar, appearing in their reply to seek some sort of advisory ruling by the Court on what impact the Court's demurrer rulings had on their pending motion for 128.7 sanctions. Defendants contend that plaintiff created the problem by the unauthorized filing of the SAC. The Court notes that defendants filed their 128.7 sanction motion directed toward the FAC, after the SAC had been filed. Presumably, defendants were hoping that their motion to strike would preserve the integrity of their sanction motion, by eliminating the SAC. That did not happen. The Court does not give advisory rulings. Rather, the duty of a trial court is to decide actual controversies, and not give opinions upon moot questions or abstract propositions. (Colony Cove Properties, LLC v. City of Carson (2010) 187 Cal.App.4th 1487, 1509.) The Court made its previous rulings without regard to matters which, although they may have been pending, were not properly before it for consideration. The impact of those rulings on pending matters is also not properly before the Court for consideration at the current time, and the Court declines to make any comment thereon. The Court will, however, continue the hearing on defendants' 128.7 sanctions motion to allow defendants an opportunity to evaluate the circumstances and determine whether the motion can or should proceed to hearing in its current form, or be withdrawn and potentially refiled to reflect the current posture of the case. The Court will continue the hearing on that motion to March 18, 2022. If defendants determine that they will go forward on that date with the motion in its current form, they must advise plaintiff of that fact no later than Monday, February 28, 2022, in order for plaintiff to have sufficient opportunity to respond to the motion under the current posture of the case. Motion for terminating sanctions or protective order To the extent defendants' motion seeks terminating sanctions, it is denied. To the extent it seeks a protective order precluding all discovery, it is denied, particularly given this Court's prior authorization for plaintiff to conduct jurisdictional discovery. In the interests of justice, and as a matter of case management, the Court will, however, stay all discovery SC-2411 (Revised July 1, 2013) MINUTE ORDER related to the merits of the action, pending resolution of the motion to quash for lack of jurisdiction. In doing so, the Court is not finding that discovery inquiries which overlap jurisdictional and trade secrets issues absolutely do not need to be answered; rather, if the parties are not able to resolve discovery disputes after good faith meet and confer efforts, the Court will determine the nature and scope of the information which must be provided in response to the discovery. The Court expressly reserves the right to further continue the hearing on the motion to quash, to the extent that due process and the need to resolve discovery disputes related to jurisdictional discovery require that result. The requests for monetary sanctions are denied. Code of Civil Procedure section 2019.210 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. Defendants' sanction motion was filed when the FAC, which contained a cause of action for misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA) was the operative pleading. Ten days after the motion was filed, plaintiff filed its SAC, in which it eliminated its UTSA misappropriation cause of action. Even so, the SAC continued to allege that all defendants had converted plaintiff's confidential information and, in doing so, had intentionally interfered with plaintiff's contractual relations and its prospective economic advantage, and committed unfair business practices. The SAC also alleges that two individual defendants who were its former employees, and who had executed Employment Agreements with provisions related to Trade Secret/Confidential Information and nondisclosure agreements had breached those contracts and had, through their alleged conduct, breached the covenants of good faith and fair dealing implied in those contracts. Defendants' motion seeks terminating sanctions against Butler America based upon its failure to comply with the trade secret identification requirements set forth in Code of Civil Procedure section 2019.210. Alternatively, it seeks a protective order precluding Butler America from conducting any discovery in this action unless or until it complies with the trade secret identification requirements of Section 2019.210. The motion also seeks monetary sanctions against plaintiff and its attorneys in the amount of $6,150.00. Defendants contend that plaintiff has completely failed to comply with the requirements of Section 2019.210. Plaintiff counters that its disclosures in federal court, along with the allegations of its FAC, fully complied with Section 2019.210, and further that its elimination of the UTSA cause of action from its SAC renders the entire matter of compliance with Section 2019.210 moot, since it applies only in actions alleging the misappropriation of a trade secret under the UTSA. In their reply papers, defendants raise for the first time their contention that the requirements of Section 2019.210 apply in this case regardless of the elimination of the UTSA cause of action. The issue of whether Section 2019.210 continues to apply to this action, in light of the elimination of the UTSA cause of action from the SAC, has not been properly placed before this Court, and cannot be determined based upon the information currently before the Court. Before the Court could properly resolve the issue, the parties would need to present it in some fashion in moving papers (not for the first time in a reply), which fully articulated the legal and factual arguments for why Section 2019.210 should or should not continue to apply to this action. To the extent defendants seek the determination that it continues to apply, their papers should also specifically explain how the disclosures made by plaintiff to date (in pleadings and in the disclosures purportedly made in the federal court) are insufficient to meet the "reasonable particularity" standard required under Section 2019.210. SC-2411 (Revised July 1, 2013) MINUTE ORDER The Court has neither reviewed nor evaluated the pending demurrer to the SAC, and has no knowledge whether the issue is addressed in any manner therein (whether characterized as a preemption of the claims by the UTSA, or otherwise). It could also permissibly come before the Court in a properly drafted and supported motion for protective order, or in support of or opposition to motions to compel. While defendants appear to interpret this Court's comments (made in the course of continuing the hearing on the motion to quash for lack of California jurisdiction) as constituting such a determination, that is not true. The issue was also not properly before the Court at that time, and the Court was merely commenting that, based upon the holding in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 830, the elimination of the UTSA claim would "not necessarily imply" that the Section 2019.210 limitation does not apply to the remaining causes of action. Even if the Court could make that determination at this time, and even if it determined that Section 2019.210 continued to apply to this action, there is currently nothing before the Court that would cause the court to entertain the prospect of terminating sanctions. The express provisions of Section 2019.210 only prohibit discovery related to the trade secret prior to the identification with reasonable particularity of the trade secret at issue in the action. The Court understands that defendants made clear while this case was pending in federal court, that they believed the federal courts required compliance with the identification requirement at an early stage. This action is no longer pending in the federal courts, and this court is not bound by federal standards determining the time for compliance with Section 2019.210. Further, this action is still at the pleading stage, with a demurrer to the SAC remaining to be resolved, and there exists authority that even in federal actions, compliance with Section 2019.210 is not required at the pleading stage. (See Meggitt San Juan Capistrano, Inc. v. Younzhong (9th Cir. 2014) 575 Fed.Appx. 801, 803.) By its terms, compliance with Section 2019.210 is only required prior to the conduct of discovery relating to the trade secret. There is therefore no legal basis for this court to entertain defendants' motion for terminating sanctions, even if the this Court could, at this time, definitively determine that Section 2019.210 applies to this case, and that plaintiff's disclosures to date do not comply with its requirements. Defendants' motion alternatively seeks a protective order preventing plaintiff from engaging in discovery unless and until it complies with Section 2019.210. Again, the issue of whether Section 2019.210 applies to this action is not properly before the Court for resolution, given the timing and contents of defendants' moving papers. Neither is there sufficient information before the Court from which it could make that determination. To the extent the motion seeks an absolute preclusion of any discovery by plaintiff, it is necessarily denied, in that this Court has already expressly permitted plaintiff to conduct discovery regarding California jurisdiction over the defendants who are moving to quash service based upon a claim of lack of jurisdiction. In ruling on the prior motions, this Court noted that "discovery relating to the trade secret" may or may not overlap with jurisdictional discovery. It also noted that it did not have any occasion to make any determinations as to the propriety of any particular discovery, as the matter was then presented to the court, and noted that it expected the parties to meet and confer to avoid the necessity of court intervention to the extent practicable. In making that comment, the Court did not find that defendants had no obligation to respond to any jurisdictional discovery that might overlap with trade secret discovery. Rather, it merely noted the possibility of some overlap, and recognized that without the specific discovery requests before it, it could make no determinations as to the propriety of any individual request. SC-2411 (Revised July 1, 2013) MINUTE ORDER Currently, the Court understands that plaintiff has propounded jurisdictional (and potentially other) discovery. It understands further that defendants have responded to some of the discovery, and refused to respond to some of the discovery, contending that it impermissibly seeks trade secret discovery. It also understands that plaintiff has filed motions to compel further responses to the discovery, which are set for hearing on April 1, 2022. Given the "zeal" with which the parties have already been litigating this action, and to prevent the case from further devolving into chaos, the Court will issue a stay of all discovery other than that being conducted to address jurisdictional issues, pending resolution of the motion to quash. Again, this does not mean that any discovery which has some amount of overlap with "trade secret" discovery is automatically precluded; to the extent the parties have good faith disputes over such discovery, they will be resolved in the course of motions to compel and/or future properly drafted and supported motions for protective orders. This stay will include the discovery which was served by plaintiff upon the defendants who are not challenging the court's jurisdiction over them, pending resolution of the motion to quash. This Court notes that it has twice continued the motion to quash, in order to permit plaintiff to conduct jurisdictional discovery. This is not a novel concept, and regularly occurs in actions in which defendants file motions to quash based upon their contention that the State of California has no jurisdiction over them. Indeed, while this Court's previous comments reflect its desire that the motion to quash should be handled as expeditiously possible, it will further continue the hearing on the motion to quash if doing so proves necessary to permit plaintiff to complete its jurisdictional discovery. Finally, the Court denies both parties' requests for monetary sanctions. Compliance with Santa Barbara Superior Court Local Rules 1308 Local rule 1308 provides: After an action is removed to federal court, remand from the federal court to the state court is effected when the federal court clerk sends a certified copy of the order on remand to the clerk of the superior court. Documents filed in federal court after removal are not provided to the superior court. To complete the superior court's file after remand, within 30 days of the filing of the order of remand, each party shall file a declaration describing the material pleadings that party filed in the federal action and the pertinent orders or rulings entered in the federal action. Certified or conformed copies of all such pleadings and papers shall be attached to the declaration. The parties' compliance with Rule 1308 is critical to the proper conduct of the litigation, in that federal courts do, upon remand of an action to the state court, provide the state court with any copies of documents filed in the action while the action was pending in the federal court. As a result, without compliance with Rule 1308, the court's file remains incomplete in material respects. Defense counsel complied with the requirements of Rule 1308 by filing the required declaration on September 22, 2021. That declaration included the material pleadings filed by defendants in the federal court, and the pertinent orders or rulings entered in the federal action. Plaintiff has never complied with the requirements of Rule 1308. As a result, this court's file remains incomplete, and fails to include, among other things, a proper certified or conformed copy of plaintiff's FAC. That the FAC was attached as an exhibit to defense counsel's pre-demurrer meet-and-confer declaration, prior to the filing of defendants' demurrer to the FAC, does not cure this critical defect. SC-2411 (Revised July 1, 2013) MINUTE ORDER The Court hereby directs and orders plaintiff's counsel to comply with the provisions of Local Rule 1308 no later than March 4, 2021. If counsel fails to do so, the Court intends to issue an Order to Show Cause why it should not issue one or more of the sanctions and penalties articulated in Code of Civil Procedure section 575.2(a) or Santa Barbara Superior Court Local Rules 102. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER