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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 03/25/2022 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Kristi Temple Dept: SB Dept 4
Deputy Sheriff: Marco Diaz
Court Reporter: Mary Camacho 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: Demurrer – Filed by Defendants
The Court adopted the tentative ruling as follows:
RULING:
For the reasons set forth herein, the demurrer of defendants to the second amended complaint of plaintiff
Butler America, LLC, is continued to May 20, 2022, at 10:00 a.m.
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
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, filed Sept. 22, 2021, 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, filed Nov. 20, 2021, 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
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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.”) This motion
and the demurrer were set for hearing on December 3.
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 to stay the action as between them pending
disposition of the arbitration.
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.).
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. Also on November 19, defendants filed their motion for
sanctions pursuant to Code of Civil Procedure section 128.7.
On December 3, 2021, the court heard the demurrer of the generally appearing defendants and deemed
the demurrer sustained with leave to amend. The court further deemed the SAC as filed pursuant to that
leave to amend. Based on that ruling, the court ordered the demurrer of the specially appearing
defendants off calendar as moot. The court also continued the hearing on the motions to quash of the
specially appearing defendants to March 11, 2022, to allow Butler America the opportunity to conduct
jurisdictional discovery.
On January 3, 2022, all defendants filed their demurrer to the SAC. The demurrer is set for this hearing
date of March 25.
On January 4, 2022, Butler America filed its motions to compel further responses to special
interrogatories and further responses to requests for production of documents. These motions are set for
hearing on April 1.
On February 9, 2022, the court entered its order on the ex parte application of Butler America continuing
the hearing on specially appearing defendants’ motions to quash to May 20.
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On February 18, 2022, the court denied as moot the motion of defendants to strike the SAC as filed
without leave of court based upon the court’s ruling of December 3, 2021. The court expressed concern
about the viability of defendants’ motions for sanctions pursuant to Code of Civil Procedure section 128.7
to proceed given the current procedural posture of the case and continued the hearing on that motion to
March 18.
On March 4, 2022, defendants withdrew their then-pending motion for sanctions pursuant to Code of
Civil Procedure section 128.7.
On March 14, 2022, Butler America filed its opposition to defendants’ demurrer.
Analysis:
The demurrer to the SAC is made by both the generally appearing defendants and the specially
appearing defendants. As noted above, the motions of the specially appearing defendants to quash
service of summons on the grounds of lack of personal jurisdiction is now set for May 20. The court
expresses no present opinion as to the outcome of that motion to quash, but notes that it is more
consonant with judicial economy to address the demurrer concurrently with, or after, disposition of the
motion to quash so that the demurrer will be resolved as to all parties over whom the court has
jurisdiction. The court will therefore continue the hearing on the demurrer to be heard with the motion to
quash. The court will at that time either resolve the demurrer or set a further hearing date for the
demurrer.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kristi Temple , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 03/25/2022 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Kristi Temple Dept: SB Dept 4 Deputy Sheriff: Marco Diaz Court Reporter: Mary Camacho 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: Demurrer – Filed by Defendants The Court adopted the tentative ruling as follows: RULING: For the reasons set forth herein, the demurrer of defendants to the second amended complaint of plaintiff Butler America, LLC, is continued to May 20, 2022, at 10:00 a.m. 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 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, filed Sept. 22, 2021, 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, filed Nov. 20, 2021, 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 SC-2411 (Revised July 1, 2013) MINUTE ORDER 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.”) This motion and the demurrer were set for hearing on December 3. 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 to stay the action as between them pending disposition of the arbitration. 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.). 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. Also on November 19, defendants filed their motion for sanctions pursuant to Code of Civil Procedure section 128.7. On December 3, 2021, the court heard the demurrer of the generally appearing defendants and deemed the demurrer sustained with leave to amend. The court further deemed the SAC as filed pursuant to that leave to amend. Based on that ruling, the court ordered the demurrer of the specially appearing defendants off calendar as moot. The court also continued the hearing on the motions to quash of the specially appearing defendants to March 11, 2022, to allow Butler America the opportunity to conduct jurisdictional discovery. On January 3, 2022, all defendants filed their demurrer to the SAC. The demurrer is set for this hearing date of March 25. On January 4, 2022, Butler America filed its motions to compel further responses to special interrogatories and further responses to requests for production of documents. These motions are set for hearing on April 1. On February 9, 2022, the court entered its order on the ex parte application of Butler America continuing the hearing on specially appearing defendants’ motions to quash to May 20. SC-2411 (Revised July 1, 2013) MINUTE ORDER On February 18, 2022, the court denied as moot the motion of defendants to strike the SAC as filed without leave of court based upon the court’s ruling of December 3, 2021. The court expressed concern about the viability of defendants’ motions for sanctions pursuant to Code of Civil Procedure section 128.7 to proceed given the current procedural posture of the case and continued the hearing on that motion to March 18. On March 4, 2022, defendants withdrew their then-pending motion for sanctions pursuant to Code of Civil Procedure section 128.7. On March 14, 2022, Butler America filed its opposition to defendants’ demurrer. Analysis: The demurrer to the SAC is made by both the generally appearing defendants and the specially appearing defendants. As noted above, the motions of the specially appearing defendants to quash service of summons on the grounds of lack of personal jurisdiction is now set for May 20. The court expresses no present opinion as to the outcome of that motion to quash, but notes that it is more consonant with judicial economy to address the demurrer concurrently with, or after, disposition of the motion to quash so that the demurrer will be resolved as to all parties over whom the court has jurisdiction. The court will therefore continue the hearing on the demurrer to be heard with the motion to quash. The court will at that time either resolve the demurrer or set a further hearing date for the demurrer. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER