Deerpoint Group, Inc. v. Agrigenix, LLC

• Court: District Court, E.D. California
• Decided: August 23, 2024
• Docket: 1:18-cv-00536
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEERPOINT GROUP, INC., Case No. 1:18-cv-00536-JLT-BAM 12 Plaintiff, ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT 13 v. (Docs. 263, 265) 14 AGRIGENIX, LLC, et al. ORDER SETTING STATUS 15 Defendants. CONFERENCE 16 DATE: September 3, 2024 TIME: 1:00 p.m. 17 COURT: Hon. Barbara A. McAuliffe 18

19 Pending before the Court are the parties’ cross motions for summary judgment. On 20 September 7, 2023, Plaintiff Deerpoint Group, Inc. (“Plaintiff” or “Deerpoint”) filed its motion 21 for summary judgment. (Doc. 263.)1 On September 11, 2023, Defendant Mahoney filed his 22 motion for summary judgment. (Doc. 265.)2 The parties filed their respective oppositions and 23

24 1 Documents from the CM/ECF docket are referenced throughout this order by their CM/ECF docket number and CM/ECF pagination. 25 2 Defendant Mahoney’s motion is labeled “Defendants Agrigenix and Sean Mahoney’s Memorandum of 26 Points and Authorities in Support of Their Motion for Summary Judgment,” and Defendant Mahoney elsewhere refers to both himself and Defendant Agrigenix, LLC (“Defendant Agrigenix” or “Agrigenix”) 27 in his briefing. (Doc. 265-1.) However, as default was entered against Defendant Agrigenix, the Court considers the cross-motions for summary judgment as regarding Defendant Mahoney only. (Docs. 259, 28 260.) 1 replies, and the motions have been fully briefed. (Docs. 271-272, 276-277, 284.) The Court took 2 the matter under submission. Local Rule 230(g). 3 Having carefully considered all of the parties’ briefing and the record in this case, and for 4 the reasons detailed below, Plaintiff’s motion for summary judgment will be DENIED, and 5 Defendant Mahoney’s motion for summary judgment will be GRANTED in part and DENIED in 6 part. 7 I. BACKGROUND 8 This case has been pending for several years and in the interest of brevity, the Court 9 highlights pertinent parts of the case background. 10 Plaintiff is in the business of chemical water treatment solutions for agricultural irrigation 11 and alleges that Defendant Mahoney, one of its former employees, launched Defendant 12 Agrigenix, LLC as a direct competitor to Plaintiff using Plaintiff’s confidential, proprietary, and 13 trade secret information. On April 18, 2018, Plaintiff filed this action against Defendant 14 Agrigenix and Mahoney alleging claims for trade secret misappropriation, false advertising, two 15 claims for breach of contract, two related claims for breach of the covenant of good faith and fair 16 dealing, intentional interference with prospective economic advantage, and unfair competition. 17 (Doc. 1.) Plaintiff filed the operative Second Amended Complaint on February 24, 2020, alleging 18 eight claims for relief, described more particularly below. (Doc. 82.) 19 After the Court scheduled the case and opened discovery, numerous discovery disputes 20 arose between the parties, which the Court resolved. The disputes culminated in Plaintiff ‘s 21 motions for sanctions against Agrigenix and Mahoney. (Doc. 168.) On October 31, 2022, the 22 Court issued an order granting Plaintiff’s motion for sanctions and recommending that adverse 23 jury instructions be provided at trial. (Doc. 218.) The Court recommended that the instructions 24 should: (1) acknowledge that Agrigenix and Mahoney had a duty to preserve evidence relating to 25 Plaintiff’s complaint; (2) inform the jury that Agrigenix and Mahoney failed to preserve and 26 produce electronically stored information, which resulted in the “spoliation of evidence”; (3) 27 instruct the jury that as a result of this spoliation of evidence, the jury should presume that the 28 1 contents of the electronically stored information would have been favorable to Plaintiff and 2 unfavorable to Defendants; (4) instruct the jury on what the absent evidence would show: (a) that 3 the spoliated evidence contained confidential, proprietary, and trade secret information belonging 4 to Deerpoint with respect to the formulation, manufacture, cost, and pricing of Deerpoint products 5 and with respect to Deerpoint customers; and at the trial judge’s discretion, that (b) Mahoney and 6 Agrigenix used documents containing Deerpoint’s confidential, proprietary, and trade secret 7 information to advance the business of Agrigenix to the detriment of Deerpoint. (Id. at 39-40.) 8 On July 28, 2023, the Court entered a stipulated order in which the parties agreed to 9 dismiss Agrigenix’s counterclaims against Deerpoint with prejudice and granted the stipulated 10 entry of default against Defendant Agrigenix. (Doc. 259.) The stipulated order directed the clerk 11 of court to enter default in favor of Plaintiff with respect to the First Claim for Trade Secret 12 Misappropriation, the Second Claim for Trade Secret Misappropriation, the Third Claim for false 13 advertising, the Seventh Claim for unfair competition, and the Eighth Claim for patent 14 infringement. (Doc. 259.) The Court noted that its order did not resolve Plaintiff’s claims against 15 Defendant Mahoney. (Id. at 2.) 16 On September 7 and September 11, 2023, Plaintiff and Defendant Mahoney filed their 17 cross-motions for summary judgment. (Docs. 263, 265.) These parties filed their respective 18 oppositions on October 13, 2023, and replies on November 13, 2023. (Docs. 271-72, 276-77.) 19 Defendant Mahoney filed a Motion for Sanctions on November 13, 2023 that has been fully 20 briefed and will be addressed by separate order. (Doc. 275, 281, 286.) The motions were 21 pending before District Judge Jennifer L. Thurston. On September 13, 2023, the cross-motions 22 for summary judgment and associated request to seal were subsequently reassigned to Magistrate 23 Judge Barbara A. McAuliffe pursuant to the parties’ consent. (Doc. 267.) 24 On May 1, 2024, the Court convened a status conference to address potential resolution of 25 this matter and the related matter, Deerpoint Group, Inc. v. GAR Bennett LLC (1:23-cv-1340- 26 JLT-BAM). (Doc. 295.) However, the parties informed the Court that the parties in the instant 27 case had not settled, and the thereafter, Court took the parties’ cross-motions under submission. 28 (Id.) 1 The cross-motions for summary judgment have substantively similar arguments and 2 overlapping issues. Therefore, the parties’ positions will be addressed collectively below. 3 II. EVIDENTIARY OBJECTIONS 4 As a preliminary matter, Defendant Mahoney raises numerous objections to Plaintiff’s 5 statement of undisputed facts and to the evidence supporting Plaintiff’s opposition to Defendant 6 Mahoney’s motion for summary judgment, based on lack of foundation, lack of personal 7 knowledge, hearsay, and relevance that are duplicative of the summary judgment standard itself. 8 (Doc. 272-5, Doc. 276-2.) Plaintiff opposes these objections. (Doc. 277-1.) 9 The Court declines to address these objections individually but notes that when evaluating 10 a motion for summary judgment, a court “cannot rely on irrelevant facts, and thus relevance 11 objections are redundant.” Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 12 (E.D. Cal. 2006). In addition, “improper legal conclusions... are not facts and likewise will not be 13 considered on a motion for summary judgment.” Id.; see also Sandoval v. Cnty. of San Diego, 14 985 F.3d 657, 665 (9th Cir. 2021) (finding that district court abused its discretion where it 15 sustained “boilerplate one-word objections for ‘relevance,’ ‘hearsay’ and ‘foundation’ in motion 16 for summary judgment). In the analysis below, the Court relies only upon any evidence that may 17 be presented in an admissible form at trial in evaluating the merits of the motion for summary 18 judgment. See Fed. R. Civ. P. 56(c)(2); see also Sali Corona Reg'l Med. Ctr., 909 F.3d 996, 1005 19 (9th Cir. 2018) (“the court must review the evidence in light of what would be admissible before 20 either the court or jury” [citation omitted]); Burch, 433 F. Supp. 2d at 1119-1120 (even if 21 evidence is presented in a form that is currently inadmissible, it may be considered on a motion 22 for summary judgment so long as the admissibility defects could be cured at trial). Toward that 23 end, the objections to any evidence cited below—particularly as to objections related to 24 admissibility— are overruled. 25 The Court now turns to the parties’ cross motions for summary judgment. 26 III. LEGAL STANDARD FOR SUMMARY JUDGMENT 27 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 28 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 1 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 2 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 4 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. Summary judgment 5 must be entered, “after adequate time for discovery and upon motion, against a party who fails to 6 make a showing sufficient to establish the existence of an element essential to that party’s case, 7 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 8 317, 322 (1986). 9 The party seeking summary judgment “always bears the initial responsibility of informing 10 the district court of the basis for its motion, and identifying those portions of the pleadings, 11 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 12 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. 13 at 323. The exact nature of this responsibility, however, varies depending on whether the issue on 14 which summary judgment is sought is one in which the movant or the nonmoving party carries 15 the ultimate burden of proof. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 16 2007). If the movant will have the burden of proof at trial, it must “affirmatively demonstrate that 17 no reasonable trier of fact could find other than for the moving party.” Id. (citing Celotex, 477 18 U.S. at 323). In contrast, if the nonmoving party will have the burden of proof at trial, “the 19 movant can prevail merely by pointing out that there is an absence of evidence to support the 20 nonmoving party’s case.” Id. 21 If the movant satisfies its initial burden, the nonmoving party must go beyond the 22 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 23 evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th 24 Cir. 2009) (emphasis in original). “[B]ald assertions or a mere scintilla of evidence” will not 25 suffice in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio 26 Corp., 475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], 27 its opponent must do more than simply show that there is some metaphysical doubt as to the 28 material facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational 1 trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 2 475 U.S. at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 3 (1968)). Where, as here, the parties cross-move for summary judgment on a claim, the court is 4 required to review the evidence submitted by the parties in support of their own motions and in 5 opposition to the opposing party’s motion in deciding each summary judgment motion. Fair 6 Hous. Council of Riverside Cty., Inc., v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) 7 (finding district court was required to review the evidence properly submitted in support of 8 plaintiffs’ motion for summary judgment to determine whether it presented a disputed issue of 9 material fact precluding summary judgment on defendants’ motion for summary judgment); 10 Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011) (stating court considers each party’s 11 evidence on cross motions to evaluate whether summary judgment was appropriate). 12 In resolving a summary judgment motion, “the court does not make credibility 13 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 14 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 15 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 16 nonmoving party must produce a factual predicate from which the inference may reasonably be 17 drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), 18 aff’d, 810 F.2d 898 (9th Cir. 1987). 19 A party demonstrates summary adjudication is appropriate by “informing the district court 20 of the basis of its motion, and identifying those portions of ‘the pleadings, depositions, answers to 21 interrogatories, and admissions on file, together with affidavits, if any,’ which it believes 22 demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (quoting 23 Fed. R. Civ. P. 56(c)). 24 /// 25 /// 26 /// 27 28 1 IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT3 2 Plaintiff’s operative Second Amended Complaint alleges claims arising under federal and 3 state laws, including: (1) Trade Secret Appropriation against Defendant Agrigenix pursuant to 18 4 U.S.C. §§ 1836 et seq.; (2) Trade Secret Misappropriation pursuant to Cal. Civ. Code §§ 3426 et 5 seq. against Defendant Agrigenix; (3) False Advertising pursuant to 15 U.S.C. § 1125(a) against 6 Defendant Agrigenix; (4) Breach of Secrecy Agreement against Defendant Mahoney; (5) Breach 7 of Settlement Agreement against Defendant Mahoney; (6) Intentional Interference with 8 Prospective Economic Advantage against Defendants Agrigenix and Mahoney; (7) Unfair 9 Competition pursuant to Cal. Bus. Prof. Code §§ 17200 et seq. against Defendants Agrigenix and 10 Mahoney; and (8) Patent Infringement against Defendants Custom AG, Agrigenix, and Mahoney. 11 (Doc. 82.) 12 Plaintiff now moves for summary judgment on the Fourth and Fifth claims for relief 13 against Defendant Mahoney: Breach of Secrecy Agreement and Breach of Settlement Agreement, 14 and also on Defendant Mahoney’s affirmative defenses to patent infringement on the basis that 15 there are no genuine disputes of fact. (Doc. 263.) In Defendant Mahoney’s cross-motion, 16 Defendant Mahoney moves for summary judgment on Plaintiff’s Fourth through Eighth claims 17 for relief: Breach of Secrecy Agreement, Breach of Settlement Agreement, Intentional 18 Interference with Prospective Economic Advantage, Unfair Competition, and Patent 19 Infringement, on the basis that Plaintiff has not provided sufficient evidence to demonstrate a 20 genuine dispute of material fact on those claims. (Doc. 265.) 21 In the interest of judicial economy, the Court elects to bifurcate adjudication of the claims 22 and only addresses the parties’ motions regarding the Fourth, Fifth, Sixth, and Seventh claims for 23 relief in this order. The Court will later rule on the parties’ arguments regarding the Eighth claim 24 for patent infringement and Defendant Mahoney’s affirmative defenses of validity and 25

26 3 The Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the 27 parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly 28 reviewed and considered the evidence it deemed admissible, material, and appropriate. 1 eforceability regarding Plaintiff’s ‘179 patent, as well as Defendant Sean Mahoney’s Motion for 2 Sanctions Pursuant to Federal Rule of Civil Procedure 11. (See Doc. 263 at 23-27; Doc. 265-1 at 3 14-20, Doc. 275.) 4 A. The Parties’ Prior Settlement Agreement Resolving Mahoney’s Employment 5 Dispute with Plaintiff 6 As a preliminary matter, the parties agree they signed a “Confidential Settlement 7 Agreement and General Release” on January 8, 2018 (the “Settlement Agreement”). (See Doc. 8 263-2 at 4-17; Doc. 263 at 11-12; Doc. 265-1 at 11-12.) This Settlement Agreement resolved a 9 prior state court lawsuit initiated by Mahoney against Deerpoint and others when he departed 10 employment at Deerpoint. This Settlement Agreement is the basis for Plaintiff’s motion for 11 summary judgment. In particular, the general release in the Settlement Agreement is at issue in 12 the claims for Breach of the Secrecy Agreement and Breach of the Settlement Agreement. 13 In the Settlement Agreement, the parties agreed to a “Complete General Release” which 14 releases the parties “from any and all actions, causes of action, obligations, costs, expenses, 15 damages, losses, claims, liabilities, suits, debts, demands, and benefits (including attorneys' fees 16 and costs), of whatever character, in law or in equity, known or unknown, suspected or 17 unsuspected, matured or unmatured, of any kind or nature whatsoever, based on any act, 18 omission, event, occurrence, or nonoccurrence from the beginning of time to the date of execution 19 hereof, including but not limited to any claims or causes of action arising out of or in any way 20 relating to Plaintiff's employment, his alleged contract claims, or which have been or could have 21 been made in the [state] Lawsuit (collectively ‘the claims’) as well as any threatened claims in 22 any cross-complaint or counterclaims.” (Doc. 263-2 at 7.) The Settlement Agreement also 23 provided an “Agreement Not to Infringe or Misappropriate [Deerpoint]’s Intellectual Property,” 24 in which Defendant Mahoney acknowledged that he had access to Plaintiff’s confidential, 25 proprietary, or Trade Secret information, would not disclose or use said information, and would 26 return Plaintiff’s tangible and intangible property. (Id. at 10-12.) 27 When the scope of the Settlement Agreement was raised in an earlier motion to dismiss in 28 this case, Judge Ishii interpreted the Settlement Agreement and held that there “is actually no 1 dispute that the Settlement is broad and releases all claims that Deerpoint and Mahoney had 2 against each other, whether known or unknown, that existed on or before January 8, 2018.” (Doc. 3 26 at 9.) Judge Ishii concluded, “for the sake of clarity, to the extent that the Complaint may be 4 read to include any claims by Deerpoint against Mahoney that existed on or before January 8, 5 2018, those claims will be dismissed without leave to amend.” (Id.) 6 The Court therefore proceeds on the claims with the understanding that claims prior to 7 January 8, 2018 have been dismissed. 8 B. Plaintiff’s Motion for Summary Judgment on Fourth Claim for Relief – 9 Defendant Mahoney’s Breach of Secrecy Agreement 10 In its fourth claim for relief, Plaintiff alleges that Defendant Mahoney breached a Secrecy 11 Agreement that he signed on May 9, 2016 as part of his employment with Plaintiff. (Doc. 82 ¶¶ 12 113-122.) Plaintiff contends that Deerpoint and Defendant Mahoney entered into a written 13 contract titled “Deerpoint Group, Inc. Employees Invention and Secrecy Agreement” (“Secrecy 14 Agreement”) on May 9, 2016. (See Doc. 82 at 42-49, Doc. 92 ¶¶ 53, 114.) Generally, by the 15 terms of the Secrecy Agreement, Mahoney agreed that items such as products, equipment, data 16 sheets, reports, memoranda, notes, records, plots, sketches, plans and other tangible items to 17 which he had access as a direct result of his employment with Deerpoint are the exclusive 18 property of Deerpoint and that he could not make such items available to third parties without the 19 express authorization of Deerpoint. (Doc. 82 ¶¶ 116.) Plaintiff contends that it is entitled to 20 summary judgment for Breach of the Secrecy Agreement as no genuine dispute of material fact 21 exists given the Secrecy Agreement, Plaintiff’s performance of its obligations, and Defendant 22 Mahoney’s breach of the Secrecy Agreement. (Doc. 263 at 15-20.) Defendant Mahoney 23 responds that this claim fails because Plaintiff did not perform on its obligations to employ 24 Defendant Mahoney, and there is no evidence that Defendant Mahoney breached the Secrecy 25 Agreement. (Doc. 272 at 15-23.) 26 “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the 27 contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the 28 defendant's breach, and (4) the resulting damage to the plaintiff.” Lair v. Bank of Am., N.A., No. 1 5:23-CV-1345-WLH-SHK, 2024 WL 943945, at *2 (C.D. Cal. Jan. 26, 2024) (citing Richman v. 2 Hartley, 224 Cal. App. 4th 1182, 1186 (2014)). 3 1. Existence of Contract 4 Plaintiff contends that Deerpoint and Defendant Mahoney entered into a written contract 5 titled “Deerpoint Group, Inc. Employees Invention and Secrecy Agreement,” the Secrecy 6 Agreement, on May 9, 2016. (See Doc. 82 at 42-49, Doc. 92 ¶¶ 53, 114.) Defendant Mahoney 7 does not dispute that the Secrecy Agreement existed between the parties. (See Doc. 272-6 ¶ 1.) 8 There is therefore no genuine dispute that the first element of the claim is met. 9 2. Performance or Excused Nonperformance 10 Plaintiff next contends that Plaintiff performed its obligations under this agreement by 11 employing Defendant Mahoney until his resignation. (Doc. 82 at 44, Doc. 168-41 ¶ 6.) 12 Defendant Mahoney disputes this fact, arguing that he was wrongfully terminated rather than 13 resigning, and therefore Plaintiff did not perform on the Secrecy Agreement. (Doc. 272 at 15, 14 272-6 ¶ 2.) In support, Defendant Mahoney submits a declaration in which he states that in “early 15 October of 2017, [he] caused an employment lawsuit to be filed against Plaintiff… In response, 16 the next day Plaintiff’s owners had the HR director escort [him] out of [his] own office… [and] 17 had the HR director drive [him] home.” (Doc. 272-4 ¶ 7.) 18 The parties ultimately settled the employment claims. In the resulting Settlement 19 Agreement between Plaintiff and Defendant Mahoney, the parties resolved the employment 20 dispute and any other potential claims the parties had against each other. Also in that Settlement 21 Agreement, Defendant Mahoney acknowledged that the Secrecy Agreement remained in full 22 effect despite Defendant’s resignation or termination. (Doc. 263-2 at 10-11) (“14.3. 23 Acknowledgement of [Deerpoint]’s Confidential, Proprietary, and Trade Secret Information. 24 Plaintiff acknowledges that he had occasion to access, acquire, and generate knowledge and 25 information related to [Deerpoint]’s business and technology, which [Deerpoint] maintains as 26 confidential or proprietary in order to maintain its competitive value. Plaintiff further 27 acknowledges that [Deerpoint] considers this information proprietary.”) 28 In an earlier order on Defendant’s initial motion to dismiss, the Court noted that, 1 “[b]ecause Mahoney's misappropriation of trade secrets is clearly a material breach of the 2 [Secrecy Agreement], Deerpoint technically had the option to terminate the contract,” but 3 “Reaffirmance of the relevant portions of the [Secrecy Agreement] indicates that the various 4 obligations of the [Secrecy Agreement] remain in effect, irrespective of any contrary argument 5 that might have otherwise been possible from the Settlement.” Deerpoint Grp., Inc. v. Agrigenix, 6 LLC, 345 F. Supp. 3d 1207, 1227 (E.D. Cal. 2018). Thus, the Secrecy Agreement remained in 7 effect, and Defendant Mahoney is incorrect that he was excused from its obligations. 8 3. Breach of Contract 9 Plaintiff contends that Defendant Mahoney breached the Secrecy Agreement by retaining 10 Plaintiff’s materials after he departed from Deerpoint. (Doc. 263 at 16-17, Doc. 277 at 6-9.) 11 Plaintiff cites evidence forensically obtained from laptops used by former employees of 12 Defendant Agrigenix and offers declarations from Plaintiff’s founders suggesting that Defendant 13 Mahoney retained Plaintiff’s protected materials. (Id.) 14 Defendant, in turn, contends that there is no evidence that Defendant Mahoney took or 15 used Plaintiff’s confidential proprietary, confidential, and/or trade secret information. (Doc. 265- 16 1 at 11-12, Doc. 272 at 15-23.) Defendant further contends that any conduct predating January 8, 17 2018 has been released as part of Plaintiff’s Settlement Agreement with Defendant Mahoney. 18 (Id.) 19 The Secrecy Agreement signed by Defendant Mahoney provides, in relevant part:

20 I agree that unless I have received authorization from Company to 21 do so I shall not either during or after my employment with Company (a) disclose to any third party, (b) use, or (c) publish any 22 information which is secret and confidential to Company. Such information, it is understood, may include, but is not limited to, 23 knowledge and data relating to processes, machines, compounds and compositions, formulas, business plans, and marketing and 24 sales information originated, owned, controlled or possessed by 25 Company and which give Company an opportunity to obtain an advantage over its competitors. I further understand that as a guide I 26 am to consider information originated, owned, controlled, or possessed by Company which is not disclosed in printed 27 publications stated to be available for distribution outside Company as being secret and Confidential to Company. In instances wherein 28 1 doubt exists in my mind as to whether information is secret and Confidential to Company, I will request an opinion, in writing, 2 from Company.

3 I agree that items (including but not limited to, products, 4 equipment, data sheets, reports, memoranda, notes, records, plots, sketches, plans and other tangible items) which I possess or to 5 which I am given access to as a direct result of my employment with Company shall at all times be recognized as the exclusive 6 property of Company. I further agree that at no time, without 7 express authorization from Company, shall I make such items available to third parties and that I shall upon leaving the employ of 8 Company, deliver promptly to Company any such items (including copies thereof) which I have in my possession. 9 (Doc. 82 at 43-44). In short, the Secrecy Agreement prohibits Plaintiff from disclosing, using, or 10 publishing Plaintiff’s confidential information. Id. 11 A review of Plaintiff’s cited evidence and the record demonstrates that there is a genuine 12 dispute of fact regarding breach. For instance, Plaintiff cites email messages forensically 13 recovered by Plaintiff’s expert between Agrigenix employees as showing Defendant Mahoney’s 14 breach of the Secrecy Agreement. (Doc 263-6 at 18-19, 20-25, 26-29, 38-43, 44-48, 49-51, 52- 15 81, 84-87.) However, the email messages and documents cited are largely from the period in 16 which Defendant Mahoney and Plaintiff released claims in the Settlement Agreement; claims 17 predating January 8, 2018. See Doc. 263-6 at 18-19 (November 13, 2017 message between 18 Agrigenix employee Graham Towerton and Mahoney); Doc. 263-6 at 20-25 (email messages 19 between Mahoney and Towerton dated November 7, 2017, November 9, 2017, and December 11, 20 2017); Doc. 263-6 at 26-29 (emails between Towerton and Agrigenix employee Eva Kwong)4; 21 Doc. 263-6 at 38-43) (emails between Towerton and Kwong, including an attachment, dated 22 between November 22 and November 27, 2017); Doc. 263-6 at 44-48 (emails between Towerton 23 and Kwong dated November 27, 2017); Doc. 263-6 at 49-51 (email between Towerton and 24

25 4 Plaintiff submits the declaration of Plaintiff’s co-owner and President Deborah Miller in which she notes that the November 17, 2017 emails between Kwong and Towerton identify products that “appear to be 26 ones in high demand by Deerpoint customers at and during growing seasons prior to November 2017.” (Doc. 263-3 ¶ 18.) As the Court concludes that Defendant Mahoney was released from all claims on or 27 before January 8, 2018, this evidence also does not support Plaintiff’s conclusion that Defendant Mahoney breached the Secrecy Agreement. 28 1 Kwong dated November 27, 2017.); Doc. 263-6 at 52-81 (presentation document entitled 2 "Agrigenix LLC Launch and Corporate Structure (investor version)" dated November 2017)5; 3 Doc. 263-6 at 84-87 (emails and two attachments between Mahoney and Kwong dated December 4 13, 2017)6. In its ruling on an earlier motion to dismiss, the Court found that there “is actually no 5 dispute that the Settlement is broad and releases all claims that Deerpoint and Mahoney had 6 against each other, whether known or unknown, that existed on or before January 8, 2018.” (Doc. 7 26 at 9.) The Court concluded, “for the sake of clarity, to the extent that the Complaint may be 8 read to include any claims by Deerpoint against Mahoney that existed on or before January 8, 9 2018, those claims will be dismissed without leave to amend.” (Id.) 10 Plaintiff does not dispute that claims which existed on or before January 8, 2018 were 11 released, but contends that due to the reaffirmance of the Secrecy Agreement, Defendant 12 Mahoney remains liable if he took Plaintiff’s protected information and then failed, on a 13 continuing basis, to return the information and notes in its reply that Defendant Mahoney also 14 used Plaintiff’s confidential information after January 8, 2018. (Doc. 263 at 20, Doc. 277.) The 15 Court agrees that Defendant Mahoney remains liable for retaining Plaintiff’s materials after 16 January 8, 2018, but Plaintiff released potential claims arising on or before January 8, 2018. 17 (Doc. 26 at 9.) Plaintiff only submitted evidence of Agrigenix employees’ use of potentially 18 protected information before the release date.7 (Doc 263-6 at 18-19, 20-25, 26-29, 38-43, 44-48, 19 5 Mrs. Miller also states that the November 2017 presentation recovered by Plaintiff’s forensic expert 20 (Doc. 263-6 at 52-81) “describes what is essentially a clone of Deerpoint.” (Doc. 263-3 ¶ 17.) She states that Agrigenix’s products cover those in high demand from Deerpoint, and Agrigenix’s sample customers 21 were significant Deerpoint customers as of October 2017 or high priority prospective customers. (Id.) As the Court concludes that Defendant Mahoney was released from all claims on or before January 8, 2018, 22 this evidence does not support Plaintiff’s conclusion that Defendant Mahoney breached the Secrecy 23 Agreement. 6 Plaintiff submits a declaration from Plaintiff’s CEO and co-owner John Miller, in which he notes that the 24 attachments “disclose a few items of Deerpoint confidential and trade secret information,” and describes how the attachments contain Plaintiff’s confidential information. (Doc. 210-1 ¶¶ 6-7.) As the Court 25 concludes that Defendant Mahoney was released from all claims on or before January 8, 2018, this evidence does not support Plaintiff’s conclusion that Defendant Mahoney breached the Secrecy 26 Agreement.

27 7 An email dated January 9, 2018 between Defendant Mahoney and potential investor Cameron Dunn is included in Plaintiff’s supporting evidence. (Doc. 263-6 at 89.) However, as the content of the email does 28 not indicate it included Plaintiff’s protected materials and the attachments to the email are not viewable, 1 49-51, 52-81, 84-87.). Therefore, Plaintiff has not carried its burden Mahoney breached the 2 Secrecy Agreement. 3 Plaintiff also argues that the information found by Plaintiff’s forensic recovery expert 4 “remained in Mahoney’s possession or under his control (as owner and CEO of Agrigenix) and 5 was accessible to him directly… into 2021, when employees departed with their laptops.” (Doc. 6 277 at 7-8.) In support, Plaintiff cites exhibits to Plaintiff’s motion for sanctions. (Docs. 168-1, 7 168-26, 168-27). These exhibits include March 4, 2019 emails between Agrigenix employee 8 Towerton and IT support Chris Martinez, in which Towerton requests that Defendant Mahoney 9 be given access to various Agrigenix folders. (Doc. 168-26.) These exhibits also include a 10 screenshot of Agrigenix’s cloud file storage which Plaintiff’s counsel states was included in the 11 March 4, 2019 email. (Doc. 168-1 ¶ 22, 168-27.) However, neither of these exhibits show 12 Plaintiff’s confidential materials within those folders, Defendant Mahoney’s retention of the 13 forensically retrieved materials, or Defendant Mahoney’s involvement. This evidence therefore 14 fails to support that “no reasonable trier of fact could find other than for the moving party.” 15 Soremekun, 509 F.3d at 984 (“the movant must affirmatively demonstrate that no reasonable trier 16 of fact could find other than for the moving party”). 17 Plaintiff also argues that Defendant Mahoney “continued to [maintain possession and 18 control over Plaintiff’s materials] for years afterward as demonstrated by files recovered in 2022 19 from laptops used by Agrigenix personnel. (Doc. 263 at 17.) However, beyond an apparent 20 reference to the materials discussed by Plaintiff’s forensic expert, Plaintiff does not cite specific 21 evidence demonstrating that Defendant Mahoney possessed or used Plaintiff’s materials after 22 January 8, 2018. (See Doc. 2638, 277.) Plaintiff’s evidence fails to support summary judgment 23 for Plaintiff on this claim. 24 Plaintiff next cites Agrigenix employee Graham Towerton’s “Worklists and Logbook” 25 this email also does not show a breach of the Secrecy Agreement. (Id., Doc. 263-5 ¶ 17.) 26 8 For example, the exhibits referenced by Plaintiff predate January 8, 2018. See, e.g. Doc. 263-6 at 19 (email dated November 13, 2017); Doc. 263-6 at 21 (email dated November 7, 2017). The content of the 27 January 9, 2018 email noted as Exhibit 14 does not indicate it included Plaintiff’s protected materials and the attachments to the email are not viewable, this email also does not show a breach of the Secrecy 28 Agreement. (Doc. 263-6 at 89, Doc. 263-5 ¶ 17.) 1 documents as showing that Mr. Towerton used Deerpoint’s chemical composition information to 2 blend Deerpoint’s fertilizers and Deerpoint’s foliar “replacements,” and thus a reasonable trier of 3 fact would conclude that Mahoney directed Mr. Towerton in these actions. (Doc. 277 at 9). Mr. 4 Towerton’s notes for “1/10/18” list “Blend [Deerpoint]PG 0-21-0 w/- Formic… 0-10-0 w/- 5 Formic” and Mr. Towerton’s notes for “2/6/18” list “Formulate MTEK 240,330,420 6 replacements.” (Doc. 271-2 at 13-14.) However, Plaintiff does not directly connect Mr. 7 Towerton’s lists or apparent actions to Defendant Mahoney’s use or possession of Plaintiff’s 8 material, and this evidence therefore does not support summary judgment. Plaintiff asks the 9 Court to infer Mr. Towerton acted at Mahoney’s direction, but a reasonable trier of fact could 10 conclude the opposite inference that Mr. Towerton did not act at Mahoney’s direction. 11 As part of its argument, Plaintiff contends that Towerton acted at the direction of 12 Defendant Mahoney and therefore Towerton’s notes regarding “[Deerpoint]” and “MTEK” 13 blends show Defendant Mahoney’s use of Plaintiff’s materials. (Doc. 277 at 9 n. 5.) To show 14 that Defendant Mahoney was liable due to his direction of Defendant Agrigenix’s employees, 15 Plaintiff refers to its argument in its opposition to Defendant Mahoney’s motion for summary 16 judgment. (Doc. 271 at 13-15.) However, Plaintiff’s opposition simply notes that “a jury could 17 reasonably find Mahoney liable for wrongful acts of others at Agrigenix because he knowingly 18 consented to, approved, directed, and/or authorized their retention and use of [Deerpoint] 19 confidential, proprietary, and trade secret information” and re-cites prior cited evidence. (Id.) 20 The lack of further evidence regarding Defendant Mahoney’s authorization or direction of Mr. 21 Towerton, along with Plaintiff’s assertion that a question remains as to Defendant Mahoney’s 22 authorization and direction of Agrigenix employees fails to show that no reasonable trier of fact 23 could find other than for the moving party. Summary judgment based upon Defendant 24 Mahoney’s alleged authorization of Mr. Towerton is therefore inappropriate. 25 Plaintiff further cites evidence of a January 2018 meeting in which Plaintiff contends that 26 Defendant Mahoney and another Agrigenix employee shared a “list containing confidential 27 information about the customer’s specially designed [Deerpoint] fertilizers” with a Deerpoint 28 customer. (Doc. 277 at 8-9.) In support of this contention, declarant Nick Marchini stated that 1 Defendant Mahoney met with him in “early to mid-January” 2018 and “handed [him] a product 2 list that was identical to that of Deer Points, so much so that it had 2 products listed that I had 3 custom made for one of my orchards that no other Deer Point customer used. I made the 4 comment to him that it looks like a Deer Point Product list, don’t you think you should change it 5 up a little, to set yourself apart. He just copied Deer Point.” (Doc. 271-6 ¶ 2.) Mr. Marchini 6 further wrote that “Later on that year,” Defendant Mahoney “offered to sell [him] some products 7 that were just like Deer Point’s formulations, so much so he said they are ‘just like Deer Points.’” 8 (Id. ¶ 3.) Plaintiff further cites testimony from Agrigenix employee Nolan Sorenson that Mr. 9 Sorenson had presented Mr. Marchini with a pricing comparison of “relatively where competitor 10 products would be and then where our products are” in the form of a paper document. (Doc. 200- 11 1 at 34-35.) Sorenson testified that he could not remember who was involved in the pricing 12 comparison or whether Deerpoint pricing was on the comparison list, but that there was pricing of 13 a competitor on the list that Sorenson provided to Mr. Marchini. (Id. at 35.) 14 In response, Defendant highlights that there is no evidence that the January 2018 meeting 15 occurred after January 8, 2018 or that the product list contained products that were Plaintiff’s 16 exclusive products. (Doc. 276 at 7-8.) Indeed, it is unclear whether the meeting between 17 Defendant Mahoney and Mr. Marchini took place after the Settlement Agreement release date of 18 January 8, 2018, as Mr. Marchini stated that he met with Defendant Mahoney in “early to mid- 19 January.” (Doc. 271-6 ¶ 2.) Second, it is unclear from the cited declaration and testimony 20 whether the materials shared with Mr. Marchini were indeed Plaintiff’s confidential materials. 21 (Doc. 200-1 at 34-35, Doc. 271-6.) As there is insufficient clarity regarding whether the January 22 2018 meeting involving a product list occurred before potential claims were released and whether 23 the January 2018 and later 2018 meetings involved Plaintiff’s confidential information, a genuine 24 dispute of material fact remains on the issue of breach. 25 Plaintiff additionally contends that a declaration from Plaintiff’s CEO and co-owner Mr. 26 Miller demonstrates that possession and use of Deerpoint’s confidential information continued 27 into 2018 and beyond. (Doc. 263 at 18.) In support, Mr. Miller states, without further 28 clarification, that Defendant Mahoney “had and retained the confidential information about 1 Deerpoint’s use of… key additives,” and cites examples after the January 8, 2018 Settlement 2 Agreement release date in which he alleges that Defendant used formulations that were identical 3 to Plaintiff’s foliar product formulations or fertilizer formulas and Defendant’s manufacturing 4 instructions selected the same materials as Plaintiff’s product blend sheets. (Doc. 263-2 at 49, 5 submitted under seal.) However, Mr. Miller notes regarding the material selection, “a matter of 6 logic and common sense, the odds of this happening without copying Deerpoint confidential 7 information are essentially zero.” (Id.) He further notes that it “is theoretically possible to use 8 the percentage information appearing on [Plaintiff’s product] label to calculate the amount of 9 each element to add to the mixture in order to manufacture the formula.” (Id.) 10 Defendant responds that the NPK fertilizer blends Plaintiff claimed to own are well- 11 known in the industry and that Mr. Miller admitted that it was possible to use the percentage of 12 information on Deerpoint’s product label to calculate the amount of each element to add to the 13 mixture in order to manufacture the formula. (Doc. 272 at 11-12, Doc. 276 at 7.) The lack of 14 evidence that Defendant Mahoney retained Plaintiff’s confidential information and Mr. Miller’s 15 statements that other methods beyond using Plaintiff’s materials could have led to Agrigenix’s 16 identical products do not permit the Court to conclude that Defendant Mahoney breached the 17 Secrecy Agreement by using Plaintiff’s confidential information. Therefore, a genuine dispute of 18 material fact remains on this issue. 19 Plaintiff fails to show that no genuine dispute of material fact remains as to Defendant 20 Mahoney’s breach of the Secrecy Agreement. Accordingly, summary judgment on this claim is 21 DENIED. 22 C. Plaintiff’s Motion for Summary Judgment on Fifth Claim – Defendant 23 Mahoney’s Breach of Settlement Agreement 24 For its Fifth claim, Plaintiff alleges that Defendant Mahoney breached the Settlement 25 Agreement with Plaintiff. (Doc. 82 ¶¶ 123-133, Doc. 263-2 at 4-17) Specifically, Plaintiff 26 alleges that on January 8, 2018, Deerpoint and Defendant Mahoney entered into a Confidential 27 Settlement Agreement and General Release in which Defendant Mahoney acknowledged that he 28 had access to Plaintiff’s confidential, proprietary, or Trade Secret information, would not disclose 1 or use said information, and would return Plaintiff’s tangible and intangible property. (Id., See 2 Doc. 263-2 at 10-12.) 3 As stated above, “[t]o prevail on a cause of action for breach of contract, the plaintiff must 4 prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for 5 nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” Lair, 6 2024 WL 943945, at *2 (C.D. Cal. Jan. 26, 2024). 7 1. Existence of Contract 8 The parties agree that the Settlement Agreement was executed. (See Doc. 263 at 21; Doc. 9 272 at 15.) 10 2. Performance or Excused Nonperformance 11 Plaintiff contends that it paid the required settlement sum to Defendant Mahoney and 12 therefore fulfilled its Settlement Agreement performance. (Doc. 263 at 21.) Defendant Mahoney 13 asserts that Plaintiff did not perform on the Settlement Agreement and his obligations are 14 excused, as Section 20 of the Settlement Agreement requires that parties resolve any claims 15 arising from it through binding arbitration rather than through litigation. (Doc. 272 at 15; Doc. 16 263-2 at 13.) In support, Defendant Mahoney cites a California Supreme Court case and a 17 California Court of Appeal case in which summary judgment was granted after defendants raised 18 the existence of an arbitration agreement. See Charles J. Rounds Co. v. Joint Council of 19 Teamsters, 4 Cal. 3d 888 (1971); 24 Hour Fitness, Inc. v. Super Ct., 66 Cal. App. 4th 1199 20 (1998). Plaintiff responds that Defendant Mahoney has waived his right to arbitration and that the 21 cases cited in support of summary judgment on the Settlement Agreement claim for relief are 22 inapposite. (Doc. 277 at 14 n. 9.) 23 The cases cited by Defendant Mahoney do not support his argument that he is excused 24 from his Settlement Agreement obligations and that he should be granted summary judgment on 25 this claim. In Rounds, the California Supreme Court held that: where the only issue litigated is covered by the arbitration clause, 26 and where plaintiff has not first pursued or attempted to pursue his 27 arbitration remedy, it should be held that (1) plaintiff has impliedly waived his right to arbitrate, such that defendant could elect to 28 submit the matter to the jurisdiction of the court; (2) defendant may 1 also elect to demur or move for summary judgment on the ground that the plaintiff has failed to exhaust arbitration remedies; and (3) 2 defendant may also elect to move for a stay of proceedings pending arbitration if defendant also moves to compel arbitration. Plaintiff 3 may of course sue preliminarily to enforce its arbitration rights. 4 Rounds, 4 Cal. 3d at 899 (emphasis added). The court in 24 Hour Fitness followed Rounds, 5 stating the question was “whether a defendant as to whom all claims are arbitrable may be 6 precluded from seeking summary judgment on that basis because the plaintiff has also raised non- 7 arbitrable claims against other defendants” and concluding that the presence “of nonarbitrable 8 claims against some defendants should not defeat the right of others to seek summary judgment 9 on the basis that all claims against them are subject to arbitration.” 24 Hour Fitness, 66 Cal. App. 10 4th at 1208. These cases clarify that, under California law, a defendant is only entitled to 11 summary judgment based upon an arbitration agreement if all claims against that defendant are 12 subject to arbitration. 13 Additionally, the courts in Rounds and 24 Hour Fitness clarify the factual circumstances 14 in which their rules applied. In Rounds, the California Supreme Court noted that in the California 15 Courts of Appeal cases it followed, 16 the fact situation was similar to the one at bar: Plaintiff had sued on the contract rather than arbitrate and had never sought to pursue its 17 arbitration remedy. Moreover, each and every issue alleged in plaintiff's cause of action could have been settled through 18 arbitration procedures. Finally, defendant did not waive its right to 19 arbitration, but consistently asserted failure to pursue arbitration as an affirmative defense. 20 Rounds, 4 Cal. 3d at 895. The facts of 24 Hour Fitness were procedurally like Rounds. During 21 pre-filing discussions, defendant had advised plaintiff’s attorneys “several times that her claims 22 were subject to the arbitration agreement.” 24 Hour Fitness, 66 Cal. App. 4th at 1206. After the 23 complaint was filed, defendants moved for summary judgment on the ground that plaintiff’s 24 claims were covered by her agreement to arbitrate. Id. In both cases, defendants quickly moved 25 for summary judgment or asserted an affirmative defense based upon the arbitration agreement. 26 Here, only Plaintiff’s breach Settlement Agreement claim is covered by the Settlement 27 Agreement’s arbitration clause, while Plaintiff’s other claims for relief are not arbitrable, 28 1 including the Secrecy Agreement breach, Intentional Interference with Prospective Economic 2 Advantage, and Unfair Competition claims. This case is therefore unlike the plaintiffs’ claims in 3 Rounds and 24 Hour Fitness, which were completely covered, as to at least some defendants, by 4 an arbitration agreement. See Rounds, 4 Cal. 3d, 24 Hour Fitness, 66 Cal. App. 4th. 5 Furthermore, this case is procedurally unlike Rounds and 24 Hour Fitness. While Plaintiff 6 sued on the Settlement Agreement rather than going through arbitration, Defendant Mahoney did 7 not consistently assert Plaintiff’s failure to pursue arbitration as an affirmative defense. Instead, 8 Defendant Mahoney’s answers and motions to dismiss do not mention arbitration. (Docs. 10, 30, 9 51, 92.) Defendant Mahoney’s only reference to arbitration was made in a September 26, 2018 10 joint scheduling report, at which time Defendant Mahoney’s initial motion to dismiss was 11 pending. (Doc. 17 at 4.) In that report, Defendants noted that “Defendants have yet to answer 12 Deerpoint’s Complaint as Defendants’ motion to dismiss (ECF 10) remains pending. If made to 13 answer, Defendants may lodge counterclaims and/or may file a petition to compel arbitration of 14 some or all of the causes of action in the Complaint.” (Id.) However, Defendant Mahoney’s 15 subsequent motion to dismiss and answers do not raise arbitration as an affirmative defense or as 16 a basis for dismissal, and a motion to compel arbitration was never filed. (See Docs. 30, 51, 92.) 17 Defendant Mahoney only raised this argument five years into litigating this case. (See Doc. 272.) 18 This case is therefore unlike Rounds and the cases supporting its reasoning, where defendants 19 consistently asserted failure to pursue arbitration as an affirmative defense. See Rounds, 4 Cal. 3d 20 at 894-95. It is additionally unlike 24 Hour Fitness, where a defendant immediately informed the 21 plaintiff that her claims were covered by an arbitration agreement and quickly moved for 22 summary judgment on that basis. 24 Hour Fitness, 66 Cal. App. 4th at 1206. Accordingly, 23 Defendant Mahoney’s cited cases do not support his position that he is excused from his 24 obligations under the Settlement Agreement. 25 3. Defendant’s Breach 26 Plaintiff contends that Defendant Mahoney breached the Settlement Agreement when he: 27 (1) “violated Paragraph 14.3 of the Settlement Agreement by breaching his Secrecy Agreement as 28 detailed in the preceding section of this brief”; (2) “violated Paragraph 14.4 by failing to act as a 1 fiduciary with respect to [Deerpoint] confidential, proprietary, and trade secret information—at a 2 minimum by not taking steps to prevent use of [Deerpoint]s protected information by Agrigenix”; 3 and (3) “violated Paragraph 14.5 of the Settlement Agreement by failing to return [Deerpoint] 4 material in his possession and by providing a sworn declaration in which he stated falsely that he 5 had not provided [Deerpoint] confidential, proprietary, or trade secret information to anyone.” 6 (Doc. 263 at 21-22.) 7 However, Plaintiff’s contention that Defendant Mahoney retained or disclosed Plaintiff’s 8 protected information is based upon the same evidence submitted for the breach of the Secrecy 9 Agreement. (Id.) The Court found above that, based on the evidence presented predating January 10 8, 2018 and the record, there remained a genuine issue of material fact whether Defendant 11 Mahoney used or disclosed confidential, proprietary, or trade secret information. (See Doc. 200-1 12 at 34-35; Doc. 263-2 at 49; Doc. 271-6,) Given that Plaintiff relies upon the same evidence of 13 Defendant Mahoney retaining, using, or disclosing Plaintiff’s protected information, Plaintiff 14 again fails to show there is no dispute of material fact as to breach of the Settlement Agreement. 15 Accordingly, Plaintiff’s motion for summary judgment as to the Settlement Agreement is 16 DENIED. 17 D. Defendant’s Motion for Summary Judgment – Federal Rule of Civil Procedure 18 56(d) Does Not Prevent Defendant Mahoney From Moving for Summary 19 Judgment on Intentional Interference and Unfair Competition Claims 20 Plaintiff contends that Defendant’s motion should be denied as Federal Rule of Civil 21 Procedure 56(d) permits the Court to defer or deny Defendant’s motion for summary judgment 22 due to Defendant Mahoney’s spoliation of ESI. (Doc. 271 at 8-11.) Defendant responds that 23 Plaintiff has not followed the requirements of Federal Rule 56(d) to include an affidavit or 24 declaration specifying the facts that cannot be presented which are essential to the opposition. 25 (Doc. 276 at 4.) 26 Rule 56(d) provides that if “a nonmovant shows by affidavit or declaration that, for 27 specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer 28 considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take 1 discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). In assessing an earlier 2 version of Federal Rule 56(d), the Ninth Circuit has held that the “burden is on the party seeking 3 additional discovery to proffer sufficient facts to show that the evidence sought exists… and that 4 it would prevent summary judgment.” Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th 5 Cir. 1996) (citing Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir.1994).). The 6 Ninth Circuit further held that the supporting “affidavit must identify “the specific facts that 7 further discovery would reveal, and explain why those facts would preclude summary judgment.” 8 Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). 9 As the Court has denied Defendant’s motion for summary judgment as to the breach of 10 Secrecy Agreement and Settlement Agreement on other grounds, the Court addresses this Federal 11 Rule 56(d) argument regarding the intentional interference and unfair competition claims. 12 Plaintiff contends that proving intentional interference and unfair competition “rest in part on 13 statements made to customers,” but “spoliation of ESI has resulted in scant production of any 14 customer communications,” and “Defendants spoliated not merely information contained on 15 computers used by Mahoney, but also information contained on those of all other Agrigenix 16 personnel responsible for sales activity.” Doc. 263 at 7 n.9. For example, Mahoney bragged about 17 meeting with growers (Doc. 163-6 at 89), but because of Defendants’ destruction of ESI “it is not 18 even possible to determine who Mahoney and others spoke with or when, let alone what was 19 said.” (Doc. 271 at 10.) 20 Here, Plaintiff has not met its burden to show that the specific evidence exists or that it 21 would prevent summary judgment. Nidds, 113 F. at 921, Tatum, 441 F.3d at 1100. Plaintiff 22 argues generally that these claims “rest in part on statements made to customers” and alludes to 23 Defendant Mahoney’s meetings with growers but does not identify specific evidence about 24 Defendant Mahoney’s interference with Plaintiff’s relationships with those growers or provide 25 facts to demonstrate that such evidence existed. (Doc. 271 at 10.) Plaintiff also does not clarify 26 why it could not obtain evidence of Defendant Mahoney’s interference with its customer and 27 business relationships by other means. ESI is not the only means for Plaintiff to prove its claim. 28 Furthermore, Plaintiff does not provide supporting affidavits or declaration, only a declaration 1 from counsel Jon Michaelson stating that evidence found confirms “that spoliation included a 2 considerable volume of ESI relevant to misappropriation of Deerpoint confidential and trade 3 secret information pertaining to fertigation equipment.” (See Doc. 271; Doc. 271-1 ¶ 5.) This is 4 insufficient to satisfy the requirement that Plaintiff show “by affidavit or declaration” that it lacks 5 the specific facts to support its intentional interference and unfair competition claims for relief. 6 Accordingly, the Court declines to apply Federal Rule 56(d) to deny Defendant Mahoney’s 7 motion for summary judgment as to Plaintiff’s intentional interference and unfair competition 8 claims. 9 In its argument, Plaintiff also cites the Ninth Circuit holding that, under an earlier version 10 of Federal Rule 56(d), “parties opposing a motion for summary judgment must make ‘(a) a timely 11 application which (b) specifically identifies (c) relevant information, (d) where there is some 12 basis for believing that the information sought actually exists.’” Blough v. Holland Realty, Inc, 13 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009). Plaintiff further cites two district court cases which it 14 contends support denial of Defendant Mahoney’s motion based on the Court’s previous order. 15 See Posner v. Hillstone Rest. Grp., Inc., No. 219CV00507TLNKJN, 2022 WL 705602, at *6–7 16 (E.D. Cal. Mar. 9, 2022); CTC Glob. Corp. v. Huang, No. SACV1702202AGKESX, 2019 WL 17 4565180, at *2 (C.D. Cal. Aug. 7, 2019). 18 However, Blough aligns with other Ninth Circuit case law requiring to specifically 19 identify relevant information and provide a basis for believing that the information sought 20 actually exists via affidavit or declaration. Blough, 574 F.3d at 1091 n.5, Nidds, 113 F. at 921, 21 Tatum, 441 F.3d at 1100. Blough is also distinguishable from Posner, in which the district court 22 found that there was specific evidence that the plaintiff could have offered absent defendant’s 23 spoliation that would demonstrate a key part of the claim. Posner, No. 2:19-cv-00507-TLN-KJN, 24 2022 WL 705602, at *9 (E.D. Cal. Mar. 9, 2022) (“Here, the best evidence Plaintiff had available 25 would have been the video evidence showing the events prior to Plaintiff's slip. However, due to 26 Defendant's actions or inactions, this evidence is no longer available to Plaintiff.”) Here, Plaintiff 27 has not identified via affidavit or declaration specific information that would have been key to 28 Defendant’s intentional interference and unfair competition claims. Similarly, in CTC Glob. 1 Corp., the district court found that there were “several categories of documents that [plaintiff] has 2 shown likely were (or are) in Defendants' possession, that haven't been produced in this case, and 3 that would be relevant to a computation of damages.” CTC Glob. Corp., No. 4 SACV1702202AGKESX, 2019 WL 4565180, at *2. As Plaintiff has not shown via affidavits or 5 declarations that it cannot present facts essential to justify its opposition, the Court declines to 6 apply Federal Rule 56(d) in this instance. 7 E. Defendant’s Motion for Summary Judgment – Plaintiff’s Argument That 8 Defendant Mahoney is Automatically Liable For Agrigenix’s Torts Fails 9 Plaintiff also broadly opposes Defendant Mahoney’s motion for summary judgment on the 10 grounds that Defendant Mahoney remains liable for Agrigenix’s actions as the sole member and 11 manager of Agrigenix. (Doc. 271 at 12-16.) In support, Plaintiff cites the California Supreme 12 Court’s holding that “Directors are liable to third persons injured by their own tortious conduct 13 regardless of whether they acted on behalf of the corporation and regardless of whether the 14 corporation is also liable.” Frances T. v. Vill. Green Owners Assn., 42 Cal. 3d 490, 504, 723 P.2d 15 573, 580 (1986). This liability “does not depend on the same grounds as ‘piercing the corporate 16 veil,’ on account of inadequate capitalization for instance, but rather on the officer or director's 17 personal participation or specific authorization of the tortious act. Id. In support of its argument, 18 Plaintiff contends that a jury could reasonably find Defendant Mahoney liable for others at 19 Agrigenix’s wrongful acts because he consented to, approved, directed, and/or authorized their 20 retention and use of Deerpoint’s information, largely repeating the same evidence that supported 21 Plaintiff’s motion for summary judgment. (Doc. 271 at 12-16, 21.) However, as discussed 22 above, Plaintiff does not provide evidence regarding Defendant Mahoney’s participation in or 23 specific authorization of others’ tortious acts. Accordingly, Plaintiff’s argument that Defendant 24 Mahoney is automatically liable for other Agrigenix employees’ torts is not a basis for denying 25 Defendant Mahoney’s motion for summary judgment. 26 F. Defendant’s Motion for Summary Judgment as to Fourth Claim – Breach of 27 Secrecy Agreement 28 Defendant Mahoney contends that he is entitled to summary judgment on Plaintiff’s 1 Breach of Secrecy Agreement claim because the parties’ Settlement Agreement released causes 2 of action on or before January 8, 2018, and there is no evidence of post-January 8, 2018 wrongful 3 conduct. (Doc. 265-1 at 11-12.) Plaintiff responds that violations of the Secrecy Agreement 4 continued after the January 8, 2018 release date, including a January 2018 meeting between 5 Defendant Mahoney and a Deerpoint customer and a January 9, 2018 email between Defendant 6 Mahoney and a potential Agrigenix investor. (Doc. 271 at 16-17.) 7 The Court previously assessed Plaintiff’s cited evidence regarding these solicitations in 8 ruling on Plaintiff’s motion for summary judgment for Breach of Secrecy Agreement. See infra. 9 However, in the context of Defendant’s motion for summary judgment, and construing the 10 evidence in the light most favorable to Plaintiff, Plaintiff’s evidence regarding the January 2018 11 meeting between Defendant Mahoney and Deerpoint customer Nick Marchini creates a genuine 12 issue of material fact. Mr. Marchini stated that Defendant Mahoney met with him in “early to 13 mid-January” 2018 and “handed [him] a product list that was identical to that of Deer Points, so 14 much so that it had 2 products listed that I had custom made for one of my orchards that no other 15 Deer Point customer used. I made the comment to him that it looks like a Deer Point Product list, 16 don’t you think you should change it up a little, to set yourself apart. He just copied Deer Point.” 17 (Doc. 271-6 ¶ 2.) Mr. Marchini further wrote that “Later on that year,” Defendant Mahoney 18 “offered to sell [him] some products that were just like Deer Point’s formulations, so much so he 19 said they are ‘just like Deer Points.’” (Id. ¶ 3.) 20 While Defendant responds that there is no evidence that the January 2018 meeting 21 occurred after January 8, 2018 or that the product list contained products that were Plaintiff’s 22 exclusive products, Plaintiff’s evidence suggests that at some point in January 2018 and later in 23 2018, Defendant Mahoney met with a Deerpoint customer and may have used Deerpoint’s 24 protected information. Plaintiff has therefore raised a genuine dispute of material fact on the 25 breach of the Secrecy Agreement by using Deerpoint’s protected information. 26 Plaintiff additionally cited Mr. Miller’s declaration as demonstrating that Agrigenix’s 27 similar or identical products that were available after the Settlement Agreement release date 28 demonstrated that Defendant Mahoney still possessed or used Deerpoint’s protected material. 1 (Doc. 263 at 18, Doc. 263-2 at 49.) Defendant responds that the NPK fertilizer blends Plaintiff 2 claimed to own are well-known in the industry and that Mr. Miller admitted that it was possible to 3 use the percentage of information on Deerpoint’s product label to calculate the amount of each 4 element to add to the mixture in order to manufacture the formula. (Doc. 272 at 11-12, Doc. 276 5 at 7.) Given Defendant Mahoney’s prior access to Deerpoint materials and the potential for 6 Agrigenix’s similar or identical products to have come from the use of Deerpoint materials, 7 Plaintiff has raised an additional genuine dispute of material fact on the breach of the Secrecy 8 Agreement. As a genuine dispute of material fact remains regarding this claim, Defendant 9 Mahoney is not entitled to summary judgment for Breach of Secrecy Agreement. 10 Accordingly, Defendant Mahoney’s motion for summary judgment for Breach of Secrecy 11 Agreement is DENIED. 12 G. Defendant’s Motion for Summary Judgment as to Plaintiff’s Fifth Claim – 13 Breach of Settlement Agreement 14 Defendant Mahoney also argues that he is entitled to summary judgment on Plaintiff’s 15 Breach of Settlement Agreement claim, as this claim is duplicative of Plaintiff’s Breach of 16 Secrecy Agreement. (Doc. 265-1 at 12.) Defendant Mahoney contends that there is no evidence 17 that he took or used Plaintiff’s protected materials. (Id.) Plaintiff responds that the Settlement 18 Agreement expanded Defendant Mahoney’s obligations with respect to Plaintiff’s protected 19 materials and contends that Defendant Mahoney remains liable and violated the Settlement 20 Agreement as he failed to return documents, failed to act as a fiduciary relative to Plaintiff’s 21 information, and lied in his sworn statement about not conveying Plaintiff’s information to 22 anyone. (Doc. 271 at 18-19.) 23 Again, the parties rely upon the same evidence to show breach by Defendant Mahoney’s 24 retention or use of protected materials. As the Court previously determined that Plaintiff’s 25 evidence of the January 2018 and later 2018 meeting between Defendant Mahoney and Mr. 26 Marchini raised a genuine dispute of material fact regarding breach, Defendant Mahoney is not 27 entitled to summary judgment on the Breach of Settlement Agreement claim for relief. 28 Accordingly, Defendant Mahoney’s motion for summary judgment for Breach of 1 Settlement Agreement is DENIED. 2 H. Defendant’s Motion for Summary Judgment as to Sixth Claim – Intentional 3 Interference with Prospective Economic Advantage 4 Plaintiff pleads an Intentional Interference with Prospective Economic Advantage 5 (“IIPEA”) claim that Defendants Agrigenix and Mahoney interfered with Plaintiff’s prospective 6 economic advantage as to various relationships with Plaintiff’s customers. (Doc. 82 ¶¶ 134-140.) 7 Defendant Mahoney moves for summary judgment, contending that Plaintiff released all claims 8 against Defendant Mahoney on or before January 8, 2018, and Defendant Mahoney did not 9 disparage Plaintiff or its owners to Plaintiff’s customers after January 8, 2018 and that Plaintiff 10 cannot show the required independent wrongful act. (Doc. 265-1 at 12-13.) Plaintiff opposes this 11 motion, responding that Defendant Mahoney’s false or disparaging statements create an 12 independent wrongful act. (Doc. 271 at 19-22.)9 13 As Plaintiff would have the burden of proof on this claim at trial, Defendant “can prevail 14 merely by pointing out that there is an absence of evidence to support the nonmoving party’s 15 case.” Soremekun, 509 F.3d at 984. The elements of an IIPEA claim are: “(1) an economic 16 relationship between the plaintiff and some third party, with the probability of future economic 17 benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional wrongful 18 acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) 19 economic harm proximately caused by the defendant's actions.” Roy Allan Slurry Seal, Inc. v. 20 American Asphalt South, Inc., 2 Cal.5th 505, 512, 213 Cal.Rptr.3d 568, 388 P.3d 800 (2017). An 21 IIPEA plaintiff must allege that the defendant “engaged in an independently wrongful act in 22 disrupting the relationship.” O'Connor v. Uber Techs., Inc., 58 F. Supp. 3d 989, 996 (N.D. Cal. 23 2014) (quoting Reeves v. Hanlon, 33 Cal. 4th 1140, 1145 (2004)). “An act is ‘independently 24 wrongful’ if it is ‘unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, 25 common law, or other determinable legal standard.’” Id. 26

27 9 However, Plaintiff notes in its own motion for summary judgment that it is willing to dismiss the IIPEA claim for relief against Defendant Mahoney following a determination of damages for which Defendant 28 Agrigenix is responsible. (Doc. 263 at 6 n. 2.) 1 In its opposition to Defendant Mahoney’s motion for summary judgment, Plaintiff argued, 2 generally, that the independent wrongful act element may be satisfied in many ways, and Plaintiff 3 eventually focused its argument on an apparent Lanham Act violations. (Doc. 271 at 19-22.) 4 Additionally, in its Second Amended Complaint, Plaintiff alleges that Defendants Mahoney and 5 Agrigenix’s statement “about Deerpoint and its products and services were untrue or misleading, 6 and made to influence or tend to influence the decisions by Deerpoint’s former customers to 7 move their business to Agrigenix.” (Doc. 82 ¶ 138.) While Plaintiff initially contends that 8 Defendant Mahoney “interfered with its prospective economic advantage by making disparaging 9 statements and by making false comparisons of their products to those of DPG” and appears to 10 suggest a false statement of fact is generally actionable under common law, Plaintiff does not 11 clarify if Plaintiff is alleging defamatory statements as the underlying wrongful act. The Court 12 therefore applies a Lanham Act analysis because an element of a Lanham Act claim is a false 13 statement of fact, and Plaintiff does not clearly define any other potential independent wrongful 14 acts. (Doc. 271 at 19-22.) 15 The elements of a Lanham Act claim are: (1) a false statement of fact by the defendant in a commercial 16 advertisement about its own or another's product; 17 (2) the statement actually deceived or has the tendency to 18 deceive a substantial segment of its audience;

19 (3) the deception is material, in that it is likely to influence the purchasing decision; 20

21 (4) the defendant caused its false statement to enter interstate commerce; and 22 (5) the plaintiff has been or is likely to be injured as a result of 23 the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill 24 associated with its products. 25 Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997) (citing Cook, 26 Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 244 (9th Cir.1990)). 27 To show a statement is false “within the meaning of the Lanham Act, a plaintiff may show that 28 1 the statement was literally false, either on its face or by necessary implication, or that the 2 statement was literally true but likely to mislead or confuse consumers.” Id. (citing Castrol Inc. v. 3 Pennzoil Co., 987 F.2d 939, 943, 946 (3d Cir.1993)). 4 In determining whether there is an actionable statement of fact, courts differentiate 5 between statements of fact, opinions, and puffery. See Newcal Indus., Inc. v. Ikon Off. Sol., 513 6 F.3d 1038, 1053 (9th Cir. 2008) (“the determination of whether an alleged misrepresentation ‘is a 7 statement of fact’ or is instead ‘mere puffery’ is a legal question that may be resolved on a Rule 8 12(b)(6) motion.”) The Ninth Circuit has held that an actionable statement under the Lanham Act 9 is “a specific and measurable claim, capable of being proved false or of being reasonably 10 interpreted as a statement of objective fact.” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 11 1121 (9th Cir. 2021) (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 12 725, 730 (9th Cir. 1999)); see also Newcal, 513 F.3d at 1053 (noting that “a statement that is 13 quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may 14 be an actionable statement of fact while a general, subjective claim about a product is non- 15 actionable puffery,” and holding that a general assertion that a business provides its customers 16 with low costs and flexibility was “classic puffery”). The Ninth Circuit has also held that “mere 17 statements of opinion regarding future events” are generally not actionable, with the “well- 18 established exception—if ‘the speaker has knowledge of facts not warranting the opinion.’” 19 PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 931 (9th Cir. 2010) (quoting Richard P. v. Vista Del 20 Mar Child Care Serv., 106 Cal. App. 3d 860, 866 (Ct. App. 1980)). 21 In its opposition, Plaintiff points to four groups of evidence that it asserts are false or 22 misleading statements: (1) Defendant Mahoney’s alleged statements to Plaintiff’s employees; (2) 23 marketing of Agrigenix products as “better” or “innovative”; (3) marketing of Agrigenix products 24 by comparing itself to Deerpoint and listing product offerings that were not available; and (4) 25 marketing of Agrigenix products by using the symbol ® on product lists and by offering services 26 it did not actually provide. (Doc. 271 at 20-22.) 27 First, Plaintiff’s employee Jeff Carr states that he attended a November 2, 2017 meeting at 28 which Defendant Mahoney invited Mr. Carr and other Deerpoint employees. (Doc. 271-5 ¶¶ 2- 1 3.) Mr. Carr states that at that meeting, Defendant Mahoney said that: “Deerpoint was a horrible 2 place to work, that the Millers could not be trusted, that John Miller was crazy, and that Deborah 3 Miller was a bitch. (Mahoney also said several much more nasty things about Mrs. Miller, but I 4 don’t feel comfortable reciting those in a written statement.)” (Id. ¶ 4.) Mr. Carr also states that 5 Defendant Mahoney “explained that Deerpoint was in bad financial condition and things would 6 only get worse because he left, because he would be hiring all of the most capable people from 7 the company, and because he would be taking all of Deerpoint’s customers for Agrigenix.” (Id.) 8 Mr. Carr further states that as Plaintiff’s Director of Grower Relations, he had regular contact 9 with Plaintiff’s customers and began to see different attitudes from Deerpoint customers, 10 including asking whether Deerpoint was financially sound, asking what it was like to work with 11 Mrs. Miller, making comments that “[Mrs. Miller] must make it hard for you.” (Id. ¶ 11.) 12 Plaintiff does not show through this evidence that Defendant Mahoney made actionable 13 statements of fact. Claims based upon November 2, 2017 events are released by the Settlement 14 Agreement. (Doc. 26 at 9.) Additionally, Defendant Mahoney’s comment that Deerpoint was a 15 “horrible place to work,” his belief that the Millers could not be trusted, and his opinions 16 regarding the Millers were all opinions rather than specific, measurable claims that were capable 17 of being proved false. Arix, 985 F.3d at 1121. Defendant Mahoney’s alleged comments that 18 “Deerpoint was in bad financial shape and things would only get worse because he left” also 19 appear to be non-actionable opinions and opinions regarding future events. PhotoMedex, 601 20 F.3d at 931. While the remainder of Mr. Carr’s statement implies that Defendant Mahoney may 21 have had other contact with Deerpoint customers after January 8, 2018, Mr. Carr and Plaintiff 22 provide no evidence that Defendant Mahoney had that contact or said disparaging things to those 23 customers. (Doc. 271-5 ¶ 11.) As Mr. Carr’s declaration does not provide evidence that 24 Defendant Mahoney made actionable statements of fact that are capable of being proven false, 25 this evidence does not show a genuine dispute of material fact regarding the independent 26 wrongful act element of the IIPEA claim. 27 Second, Plaintiff submits evidence that Defendant Agrigenix employee Sorenson was told 28 to tell customers that Agrigenix products were “better” than Deerpoint’s products and Agrigenix 1 promotional materials described its products as “innovative.” (Doc. 271 at 20-21.) Plaintiff 2 points to testimony in which Mr. Sorenson testified that he was “told that our products were the 3 best” and he repeated that to customers. (Doc. 200-1 at 30.) Mr. Sorenson further testified that 4 he had no knowledge or understanding of why the Agrigenix’s products were supposedly better 5 than Deerpoint’s products but that Defendant Mahoney “would say our products were the best.” 6 (Id.) Plaintiff also points to an Agrigenix brochure listing products under the heading “Innovative 7 products,” which is alongside other headings such as “Inspired people,” “Incomparable services,” 8 and “Intelligent Equipment.” (263-2 at 31, 38.) 9 Courts have held that, when “words like ‘better’ are used, statements are usually found to 10 be puffery unless the advertisement provides a means of quantifying what ‘better’ means.” 11 Hadley v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1089 (N.D. Cal. 2017); see Edmunson v. 12 Procter & Gamble Co., 2011 WL 4041495, at *3 (S.D. Cal. Sept. 8, 2011) (“Plaintiff does not 13 allege that P & G's advertisements or packaging listed, referenced, or otherwise incorporated its 14 patents or any criteria for measuring a “better” shave.”); Southland, 108 F.3d at 1145 (holding 15 “less is more” is not measurable and thus nonactionable puffery, while “50% less mowing” is “a 16 specific and measurable advertisement claim of product superiority based on product testing and, 17 as such, is not puffery”); Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 973 (N.D. Cal. 18 2008), aff'd, 322 F. App’x 489 (9th Cir. 2009) (“generalized and vague statements of product 19 superiority such as “superb, uncompromising quality” and “faster, more powerful, and more 20 innovative than competing machines” are non-actionable puffery.”) 21 Here, Plaintiff provides no evidence that the adjective “better” was used by Defendant 22 Mahoney or Agrigenix in any quantifiable sense. Plaintiff also provides no evidence that 23 “innovative” was used in any measurable, unambiguous sense, or that it had another purpose 24 beyond matching the other positive adjectives beginning with “I” that were in the brochure. (See 25 Doc. 263-2 at 38 (“Innovative,” “Inspired,” “Intelligent”.) These items therefore do not rise 26 beyond non-actionable puffery and do not create a genuine dispute of material fact as to the 27 IIPEA independent wrongful act element. 28 Third, Plaintiff attempts to construct a false statement from Plaintiff’s brochure, claiming 1 that Defendant Mahoney and Agrigenix communicated that they “provided fertigation equipment 2 capable of performing the same functions that their target market of [Deerpoint] customers knew 3 to expect from [Deerpoint] White Boxes” while Agrigenix’s products did not have the essential 4 capabilities of Deerpoint’s White Boxes. (Doc. 271 at 20-21; see Doc. 263-2 at 31, 38.) 5 However, even assuming Defendant’s products did not offer the same capabilities as 6 Deerpoint’s White Boxes, Plaintiff provides no evidence that the alleged comparative message 7 between Agrigenix’s products and Deerpoint’s products was communicated, that the statements 8 in the brochure deceived or had the tendency to deceive a substantial segment of the audience, or 9 that the deception was material. CytoSport, Inc. v. Vital Pharms., Inc., 894 F. Supp. 2d 1285, 10 1295 (E.D. Cal. 2012) (“In order to survive summary judgment on a Lanham Act false 11 advertising claim, a claimant must show:… the statement actually deceives or is likely to deceive 12 a substantial segment of the intended audience;… [and] that the deception is material in that it is 13 likely to influence purchasing decisions”). The cited brochure does not mention Deerpoint’s 14 White Boxes or Deerpoint generally. (Doc. 263-2 at 31, 38.) Beyond a vague statement that “No 15 other ag tech team has the scientific credibility, the farm experience or the proven track record of 16 Agrigenix,” there is no reference to competitors. (Id.) Furthermore, while Plaintiff broadly 17 asserts that the brochure appealed to the “target market of [Deerpoint] customers,” Plaintiff does 18 not cite any evidence of any customers or potential customers who interpreted this brochure in 19 this manner, were deceived by it, or affected by it in their purchasing decision. Instead, Plaintiff 20 cites a declaration from farm manager Steve Ozuna, who states that Defendant Mahoney told him 21 in Spring 2018 that Agrigenix had “some boxes built with multiple pumps that could meter 22 multiple fertilizers at the same time, continuously throughout each irrigation set,” and that “his 23 boxes were in beta phase testing with some of his old clients from Deerpoint.” (Doc. 271-7 ¶¶ 3- 24 4.) However, Mr. Ozuna states that he was not contacted by Defendant Mahoney again on behalf 25 of Agrigenix following that initial call, and Mr. Ozuna did not appear to have done business with 26 Agrigenix or been influenced in his purchasing decision by speaking with Defendant Mahoney. 27 (Id.) Mr. Ozuna’s declaration also does not reference the marketing brochure cited by Plaintiff. 28 (See Doc. 271-7.) As Plaintiff has not shown that the alleged false message actually deceived or 1 was likely to deceive a substantial segment of the intended audience or that the deception was 2 likely to influence purchasing decisions, this evidence does not demonstrate that there is a 3 genuine dispute of material fact as to a Lanham Act independent wrongful act. CytoSport, 894 F. 4 Supp. 2d at 1295. 5 Fourth, Plaintiff contends that Agrigenix advertised itself as having obtained trademark 6 registrations and offering products and services it could not provide. (Doc. 271 at 21-22.) 7 Plaintiff cites materials from Defendant Agrigenix’s marketing materials which “Quantum ®,” 8 “Fusion ®,” and “Genesis ®” as Agrigenix products. (Doc. 263-2 at 31, Doc. 271-2 at 20, 23.) 9 Plaintiff concludes that because Defendant Agrigenix never applied for or obtained registered 10 trademarks, this was a false statement of fact and therefore violated the Lanham Act. (Doc. 271 11 at 21-22.) Plaintiff also provides evidence that Agrigenix advertised products and capabilities 12 that it did not have. See (Doc. 263-2 at 31) (listing “Field Scouting: Certified Crop Advisor field 13 scouting, drone fly routes” as a service and InteliFeed and SmartCrop services including “Bubble 14 trailer or skid mount attachment capabilities”); (Doc. 200-1 at 28) (Agrigenix employee Sorenson 15 testifying that Agrigenix did not offer field scouting using drones and that he did not “know if 16 [Agrigenix] had all the things listed” under the Intelifeed and Smartscrop listings); (Doc. 200-1 at 17 68) (testimony that the Agrigenix box did not have “Bubble trailer or skid mount attachment 18 capabilities.”); (Doc. 271-7 ¶¶ 3-4) (farm manager Ozuna stating that Defendant Mahoney told 19 him in Spring 2018 that Agrigenix had “some boxes built with multiple pumps that could meter 20 multiple fertilizers at the same time, continuously throughout each irrigation set,” and that “his 21 boxes were in beta phase testing with some of his old clients from Deerpoint.”) 22 Again, even assuming that the representation of registered trademarks and nonexistent 23 products were actionable false statements, Plaintiff does not attempt to show that the false 24 statement actually deceived or was likely to deceive a substantial segment of the intended 25 audience, or that the deception was likely to influence purchasing decisions. The only potential 26 customer cited was Mr. Ozuna, who does not say that he was persuaded by Defendant Mahoney’s 27 promotions or that Defendant Mahoney and Agrigenix’s promotions influenced his purchasing 28 decisions. (See Doc. 271-7.) This evidence therefore does not demonstrate that there is a genuine 1 dispute of material fact regarding an independent wrongful act predicated on a Lanham Act claim. 2 CytoSport, 894 F. Supp. 2d at 1295. 3 As Plaintiff fails to provide evidence of either actionable false statements or audience 4 deception that would support the alleged Lanham Act violation, Plaintiff has not shown an 5 independent wrongful act under the IIPEA. Because Plaintiff does not show that essential 6 element of an IIPEA claim, no genuine dispute of fact exists regarding Plaintiff’s IIPEA claim for 7 relief and Defendant is entitled to summary judgment. O'Connor, 58 F. Supp. 3d at 996. 8 Accordingly, Defendant’s motion for summary judgment is GRANTED as to Plaintiff’s Sixth 9 Claim for Relief for Intentional Interference with Prospective Economic Advantage. 10 I. Defendant’s Motion for Summary Judgment as to Seventh Claim – Unfair 11 Competition 12 Plaintiff pleads an Unfair Competition claim based upon the untrue and unfair prongs of 13 the UCL. (Doc. 82 ¶¶ 141-148.) Defendant contends that summary judgment is appropriate on 14 Plaintiff’s Unfair Competition Law (“UCL”) claim as it is entirely derivative of Plaintiff’s IIPEA 15 claim for relief. (Doc. 265-1 at 13-14.) Defendant notes that the UCL claim is only as to 16 Defendant Mahoney given the default of Defendant Agrigenix. (Id.) Plaintiff argues that its UCL 17 claim has two predicates – an untrue or misleading statement theory and a false advertising in 18 violation of federal law theory. (Doc. 82 ¶¶ 143, 145; Doc. 271 at 22-23.) 19 California's UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” 20 Cal. Bus. & Prof. Code § 17200 et seq. The three aforementioned “prongs” each maintain a 21 distinct theory of liability and basis for relief. See Cel-Tech Commc'ns, Inc. v. Los Angeles 22 Cellular Tel. Co., 20 Cal. 4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999); see also Lozano 23 v. AT & T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). Here, Plaintiff pleads a UCL 24 claim under the unlawful and unfair prongs. (Doc. 82 ¶¶ 143, 145.) 25 1. Unlawful Prong 26 “To state a claim under the unlawful prong of the UCL, a plaintiff must plead: (1) a 27 predicate violation, and (2) an accompanying economic injury caused by the violation.” Shelton 28 v. Ocwen Loan Servicing, LLC, No. 18-CV-02467-AJB-WVG, 2019 WL 4747669, at *10 (S.D. 1 Cal. Sept. 30, 2019). “By proscribing any unlawful business practice, the UCL borrows 2 violations of other laws and treats them as unlawful practices that the unfair competition law 3 makes independently actionable.” Alvarez v. Chevron Corp., 656 F.3d 925, 933 n.8 (9th Cir. 4 2011) (alterations and citations omitted). “Virtually any law—federal, state or local—can serve 5 as a predicate for an action under [the UCL].” Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 6 1074, 1094 (N.D. Cal. 2017) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal. App. 4th 7 700, 718, 113 Cal.Rptr.2d 399 (2001)). Where an “unlawful” UCL claim sounds in fraud, it too 8 must meet Rule 9(b)’s pleading standards. Hadley, 243 F. Supp. 3d at 1094. 9 Plaintiff here suggests that the predicate violations are: (1) false or misleading statements 10 and (2) false advertising in violation of federal law. (Doc. 271 at 21-22.)10 While the UCL claim 11 is plead against Defendant Agrigenix and Defendant Mahoney, Defendant Mahoney agrees that 12 the seventh claim for relief “is against Mr. Mahoney, only, as default on the claim was entered 13 against Agrigenix based upon the settlement agreement with the bankruptcy trustee.” (Doc. 265- 14 1 at 14.) 15 Regarding the first predicate of false or misleading statements, Plaintiff again alleges a 16 Lanham Act violation, citing Mr. Carr’s declaration regarding Mr. Mahoney’s November 2017 17 statements. (Doc. 271-5 ¶¶ 4, 9.) As discussed supra, Plaintiff does not provide evidence of 18 actionable statements of fact after the January 8, 2018 Settlement Agreement release date. (Id.) 19 Accordingly, the alleged false or misleading statements do not support a predicate violation. See 20 Arix, 985 F.3d at 1121; PhotoMedex, 601 F.3d at 931. 21 Regarding the second predicate of false advertising, Plaintiff argues that Defendant 22 Mahoney remains individually liable by, “for example, by directing Sorensen to tell growers that 23 Agrigenix products were ‘better’ than those of [Deerpoint].” (Doc. 271 at 22.) Plaintiff then 24 repeats the other alleged examples of false advertising used to support its IIPEA claim for relief. 25 (Id.) However, as the Court already rejected Plaintiff’s Lanham Act theory based upon the same 26

27 10 Plaintiff again appears to assert that “untrue or misleading statements” are generally actionable. (Doc. 271 at 22-23.) The Court will again analyze these predicates in the context of the Lanham Act as Plaintiff 28 does not identify a more specific predicate. 1 cited evidence, the evidence does not support a false advertising UCL predicate violation. 2 Plaintiff has therefore failed to show a genuine dispute of material fact regarding the unlawful 3 prong of its UCL claim. 4 2. Unfair Prong 5 California courts employ three different tests in determining whether a business practice is 6 “unfair” under the UCL: the balancing test, the FTC test, and the public policy test. See Allen v. 7 Hyland's, Inc., No. CV 12-1150 DMG (MANx), 2016 WL 4402794, at *3 (C.D. Cal. Aug. 16, 8 2016). The balancing test determines whether the alleged practice is immoral, unethical, 9 oppressive, unscrupulous, or substantially injurious to consumers and requires the court to weigh 10 the utility of the defendant's alleged conduct against the gravity of the harm to the alleged victim. 11 Drum v. San Fernando Valley Bar Ass'n, 182 Cal. App. 4th 247, 257, 106 Cal.Rptr.3d 46 (2010). 12 The FTC test draws on the definition of unfair appearing in § 5 of the Federal Trade Commission 13 Act and requires that: (1) the consumer injury be substantial; (2) the injury must not be 14 outweighed by any countervailing benefits to consumers or competition; and (3) it must be an 15 injury that consumers themselves could not reasonably have avoided. Drum, 182 Cal. App. 4th at 16 257, 106 Cal.Rptr.3d 46. Finally, the public policy test requires that the public policy which is a 17 predicate to a consumer unfair competition action under the “unfair” prong of the UCL must be 18 tethered to specific constitutional, statutory, or regulatory provisions. Id. at 256, 106 Cal.Rptr.3d 19 46. 20 While Plaintiff states that it pleads an unfair UCL theory in its complaint, its moving 21 papers and the record do not show evidence corresponding to any of these tests. (See, e.g., Docs. 22 263, 271, 277.) Plaintiff’s evidence does not show a substantial harm to consumers resulting 23 from Defendant Mahoney’s or Agrigenix’s actions and Plaintiff does not identify a public policy 24 tethered to specific constitutional, statutory, or regulatory provisions. (Id.) As Plaintiff has failed 25 to show unfairness under any of the tests, Plaintiff does not demonstrate that a genuine dispute of 26 material fact exists regarding the unfair prong of the UCL. 27 As Plaintiff has not shown evidence that a genuine dispute of material fact remains 28 regarding its UCL claim, Defendant Mahoney’s motion for summary judgment as to Defendant 1 Mahoney on Plaintiff’s UCL claim is GRANTED. 2 V. CONCLUSION AND ORDER 3 For the reasons stated, IT IS ORDERED THAT: 4 1. Plaintiff’s Motion for Summary Judgment as to the Fourth and Fifth Claims for Relief 5 (Doc. 263) is DENIED; 6 2. Defendant’s Motion for Summary Judgment (Doc. 265) is GRANTED in part and 7 DENIED in part as follows: 8 a. Defendant Mahoney’s motion for summary judgment on Plaintiff’s Fourth 9 Claim for Relief for Breach of Secrecy Agreement is DENIED; 10 b. Defendant Mahoney’s motion for summary judgment as to Plaintiff’s Fifth 11 Claim for Relief for Breach of Settlement Agreement is DENIED; 12 c. Defendant Mahoney’s motion for summary judgment as to Plaintiff’s Sixth 13 Claim for Relief for Intentional Interference with Prospective Economic 14 Advantage is GRANTED; 15 d. Defendant Mahoney’s motion for summary judgment as to Plaintiff’s Seventh 16 Claim for Relief for Unfair Competition is GRANTED; and 17 3. The Court sets a Status Conference for September 3, 2024, at 1:00 PM in 18 Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe to address 19 the remaining claims in this action and the status of the case. The parties shall appear 20 at the conference remotely either via Zoom video conference or Zoom telephone 21 number. The parties will be provided with the Zoom ID and password by the 22 Courtroom Deputy prior to the conference. The Zoom ID number and password are 23 confidential and are not to be shared. Appropriate court attire required. 24 IT IS SO ORDERED. 25

26 Dated: August 23, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27