Intelemotry, Inc. v. Calpine Energy Solutions, LLC

• Court: District Court, S.D. California
• Decided: April 6, 2026
• Docket: 3:25-cv-02796
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 25cv2796 DMS (BLM) INTELOMETRY, INC., a Texas

11 corporation, ORDER DENYING PLAINTIFF’S 12 Plaintiff, MOTION FOR PRELIMINARY v. INJUNCTION; DENYING 13 DEFENDANT’S REQUEST FOR CALPINE ENERGY SOLUTIONS, LLC, 14 JUDICIAL NOTICE IN SUPPORT a California limited liability company, OF ITS SUR-REPLY; SETTING 15 Defendant. DEADLINE FOR DEFENDANT’S 16 RESPONSIVE PLEADING

17 [ECF Nos. 24, 45] 18 19 Pending before the Court is Plaintiff Intelometry, Inc.’s motion for preliminary 20 injunction. (ECF No. 24; Mem. P. & A. (“MPA”), ECF No. 26.) Defendant Calpine 21 Energy Solutions, LLC filed a response in opposition. (Opp’n, ECF No. 28.) Plaintiff filed 22 a reply. (Reply, ECF No. 38.) Defendant filed a sur-reply, (Sur-Reply, ECF No. 44), and 23 request for judicial notice in support of its sur-reply. For the following reasons, the Court 24 denies Plaintiff’s motion for preliminary injunction and denies Defendant’s request for 25 judicial notice.1 26

27 1 The parties also filed several motions to seal various filings associated with the preliminary injunction 28 1 I. INTRODUCTION 2 Plaintiff provides technology and consulting services in the retail energy market. 3 (MPA 1.) Specific to this case, Plaintiff has developed a product suite called inRetail 4 Energy Transaction Suite (“inRetail” or “Platform”) which provides software applications 5 for energy suppliers managing their businesses; databases of market intelligence; and 6 consulting services for regulatory issues, market strategies, renewable energy solutions, 7 financial evaluations, and comprehensive retail market operations. (Id. at 2.) 8 The Platform reportedly embodies Plaintiff’s “unique way” of taking “complex retail 9 transactions” and presenting them at a “very granular information level.” (Id.) The 10 technology collects, cleans, aggregates, and delivers market and operational data that retail 11 energy suppliers use to stay informed on industry-specific information, manage their 12 business, and monitor market changes. (Decl. of James P. Dibble in Supp. of Mot. (“Dibble 13 Decl.”), ECF No. 24-1, ¶ 4.) For example, Platform users can “create an offer for multiple 14 products in a single deal while separating and managing the financial and volumetric 15 aspects of the transaction discretely, which allows suppliers to hedge, track and manage 16 positions at a contract and/or portfolio level.” (MPA 2.) Users can “discretely track and 17 analyze each data set” and then enter the data into economic models to evaluate risk and 18 generate strategic purchasing plans. (Id. at 2–3.) Users can also view their “energy 19 consumption and spend” and analyze transactions. (Dibble Decl. ¶ 4.) Plaintiff states that 20 the Platform’s capabilities are accomplished by Plaintiff’s “proprietary source code, 21 architectures, process flows, collection techniques, reports, and user interfaces” found 22 “nowhere else in the industry” (“Alleged Trade Secrets”). (MPA 2–3.) Plaintiff claims 23 the Platform and the Alleged Trade Secrets contain “methods of data management and 24 presentment” that are not generally known to or readily ascertainable by others in the retail 25 energy sector, and therefore carry actual and potential independent economic value to 26 market participants. (Id. at 3.) Plaintiff uses reasonable measures to protect the Platform 27 and the Alleged Trade Secrets, including confidentiality agreements with its employees, 28 personnel, vendors, supplies, customers, licensees, and other third parties. (Id.) It also 1 uses “industry standard physical and electronic security measures in its facility and in 2 connection with its electronic systems.” (Id.) The most sensitive development work is 3 shared internally on a “need to know” basis. (Id.) 4 Defendant is a retail energy supplier that serves commercial, industrial, and 5 institutional customers across the United States. (Opp’n 3.) It has licensed the Platform 6 from Plaintiff since 2005. (MPA 4; Opp’n 3.) Defendant claims to have contributed to the 7 Platform’s development over time, (Opp’n 1), which Plaintiff contests. (See Reply 5–6.) 8 On June 10, 2005, Defendant began licensing an early iteration of the inRetail 9 software to analyze American and Canadian power markets for internal use (“First 10 Agreement”).2 (MPA 4; Opp’n 3.) Per the First Agreement, Defendant retains ownership 11 of “[a]ny pre-existing idea, invention, work of authorship, drawing, design, formula, 12 algorithm, utility, tool, pattern, compilation, program, device, method, technique, process, 13 improvement, enhancement, modification, development or discovery.” (Opp’n 6.) 14 However, Defendant cannot reverse engineer, copy, or prepare derivative works of the 15 Platform or allow unauthorized third parties to use or access the Platform for any purpose 16 other than an authorized use. (MPA 4–5.) The parties agreed to not share confidential 17 information (which includes designs, drawings, models, data, documentation, source code, 18 object code, diagrams, flow charts, research, development, processes, and procedures) or 19 use the confidential information “in any way detrimental” to the other party. (Id. at 5–6.) 20 On February 10, 2006, the parties entered another agreement, which had the same 21 substantive provisions as the First Agreement, for the purpose of developing a retail power 22 pricing system later known as inRetail Pricing Pro (“Second Agreement”). (Id. at 6; Opp’n 23 3.) According to Defendant, part of this second project involved converting Defendant’s 24 existing Microsoft Excel–based system and pricing and tariff models into a software 25 application. (Opp’n 3.) Defendant reportedly uses inRetail Pricing Pro to incorporate 26

27 2 While Plaintiff made the First Agreement with Defendant’s predecessor-in-interest, Defendant is now 28 1 Defendant’s methodology for pricing models, price quotations, and prices for its 2 customers. (Id. at 4.) Defendant owns inRetail’s data inputs (e.g., Defendant’s customers’ 3 usage data and historic pricing data) and outputs (e.g., pricing quotes and models designed 4 for Defendant’s customers). (Id.) 5 Before 2008, Defendant also used Excel spreadsheets to generate reports on 6 customers’ risk exposure. (Id.) Defendant developed mathematical formulas and risk 7 models embedded in its Excel spreadsheets. (Id.) The spreadsheets then visualized 8 customer data with graphs and charts and were emailed to the customers. (Id.) Around 9 2008, Defendant decided to replace its Excel spreadsheets and email system with a 10 “customer-facing” software application. (Id. at 1, 4.) Defendant wanted a web-based 11 application that would pull data from inRetail and Defendant’s databases, incorporate 12 Defendant’s existing tools and specifications, and present that data and information to its 13 customers in a user-friendly format with enhanced graphics. (Id. at 4.) Defendant 14 reportedly introduced the idea to Plaintiff and asked Plaintiff to develop the source code 15 for the application which became known as PowerFolio. (Id. at 5.) Defendant claims to 16 be “integral to the design and development of PowerFolio,” by providing the specifications 17 and functional requirements of the application, its pre-existing models and math underlying 18 certain functions, and the “look and feel” of PowerFolio, including the user interface of the 19 customer portal. (Id.) Defendant’s purported contributions included visual mockups and 20 instructions on enhancing the application throughout the years. (Id. at 5, 6.) Plaintiff 21 claims that it had an existing product that already included many of the functions Defendant 22 desired, which eventually became PowerFolio. (Reply 5.) Plaintiff also claims it 23 performed the development of PowerFolio on the condition that the product would remain 24 Plaintiff’s intellectual property. (Id.) 25 On November 17, 2015, Plaintiff and Defendant amended the Second Agreement to 26 address the development of PowerFolio (“Amendment”). (Opp’n 6.) The Amendment 27 conveys to Defendant common law trademark rights in the “PowerFolio” name. (MPA 8; 28 Opp’n 6–7.) Plaintiff claims that the Amendment conveyed only the PowerFolio name, 1 but Plaintiff otherwise retained in full the right, title, and interests in the Platform. (MPA 2 7.) Defendant contends that the Amendment affirms that Defendant owns its inputs to 3 PowerFolio, including all data used in connection with PowerFolio, and select formulas, 4 formats, and user interfaces. (Opp’n 7.) 5 Plaintiff reports that a whistleblower revealed Defendant is working on a project, 6 called “PowerFolio3D Project Rebuild: Web Application” (“Rebuild Project”), to replicate 7 the Platform “by analyzing and copying the Alleged Trade Secrets and other confidential 8 information.” (MPA 8.) Defendant allegedly disclosed the Platform, including the Alleged 9 Trade Secrets, to a third party—Plaintiff’s competitor and an unauthorized user—and 10 requested that the third party reverse engineer the Platform. (Id.) Defendant is also 11 allegedly reverse engineering Plaintiff’s pricing system, which is contained in the Platform. 12 (Id. at 17.) As part of this scheme, Defendant’s employees were asked to bring an “existing 13 Intelometry report to a meeting to enable [Defendant] to write [Plaintiff’s] pricing system.” 14 (Id.) Plaintiff claims this project is “duplicating nearly every aspect” of the Platform— 15 similarities include the page headers and virtually identical tables, charts, and graphs. (Id. 16 at 8–16.) Plaintiff alleges when it asked Defendant to cease and desist the Rebuild Project, 17 Defendant’s CEO stated that there was no such active project. (Id. at 17.) The 18 whistleblower informed Plaintiff that these statements were false—the project remained 19 ongoing at the time of this call. (Id.) 20 Conversely, Defendant reports that it decided to build an alternative to PowerFolio 21 in September 2025, because Plaintiff planned to replace the inRetail software with a new 22 platform, but it did not have a solution to connect the new product with the PowerFolio 23 application. (Opp’n 7.) This may make PowerFolio unusable, much to Defendant’s 24 detriment. (Id.) Thus, Defendant provided documentation, including screenshots, of 25 PowerFolio’s user functions to potential consultants and told them any project to replace 26 PowerFolio had to be from scratch. (Id. at 8.) According to Defendant, no third-party 27 developer would have access to any underlying source code, and Defendant did not provide 28 the potential consultants with PowerFolio’s source code. (Id.) 1 Plaintiff now moves for a preliminary injunction “to halt [Defendant’s] 2 misappropriation of [Plaintiff’s] trade secrets and confidential information until this 3 dispute can be resolved at trial.” (MPA 1.) Defendant has ceased all work with the 4 potential third-party consultants who were provided the documentation of PowerFolio’s 5 functions pending the outcome of the motion. (Opp’n 8.) 6 II. LEGAL STANDARD 7 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 8 showing that the plaintiff is entitled to such relief.” Winter v. Nat’l Res. Def. Council, Inc., 9 555 U.S. 7, 22 (2008). “A party seeking a preliminary injunction must meet one of two 10 variants of the same standard.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th 11 Cir. 2017). Under the Winter standard, a party is entitled to a preliminary injunction if it 12 demonstrates (1) “that [it] is likely to succeed on the merits,” (2) “that [it] is likely to suffer 13 irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips 14 in [its] favor,” and (4) “that an injunction is in the public interest.” Winter, 555 U.S. at 20. 15 “A plaintiff must make a showing on all four prongs to obtain a preliminary injunction.” 16 A Woman’s Friend Pregnancy Res. Clinic v. Becerra, 901 F.3d 1166, 1167 (9th Cir. 2018) 17 (internal quotation marks, brackets, and citation omitted). 18 Under the Ninth Circuit’s “‘serious questions’ test—a ‘sliding scale’ variant of the 19 Winter test— . . . a party is entitled to a preliminary injunction if it demonstrates (1) 20 ‘serious questions going to the merits,’ (2) ‘a likelihood of irreparable injury,’ (3) ‘a 21 balance of hardships that tips sharply towards the plaintiff,’ and (4) ‘the injunction is in the 22 public interest.’” Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 23 1190 (9th Cir. 2024) (quoting All. for the Wild Rockies, 865 F.3d at 1217). “[I]f a plaintiff 24 can only show that there are serious questions going to the merits—a lesser showing than 25 likelihood of success on the merits—then a preliminary injunction may still issue if the 26 balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors 27 are satisfied.” All. for the Wild Rockies, 865 F.3d at 1217 (quoting Shell Offshore, Inc. v. 28 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)) (emphasis in original). 1 A plaintiff need only demonstrate success as to at least one of their claims to receive 2 preliminary injunctive relief. See Ozkay v. Equity Wave Lending, Inc., No. 20-cv- 3 082630JST, 2020 WL 12764953, at *2 (N.D. Cal. Nov. 25, 2020). A district court may 4 consider “the parties’ pleadings, declarations, affidavits, and exhibits submitted in support 5 of and in opposition to the [motion for preliminary injunction].” Cal. Rifle & Pistol Ass’n, 6 Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 745 F. Supp. 3d 1037, 1048 (C.D. Cal. 2024); see 7 also Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (finding district court did 8 not abuse its discretion in granting a preliminary injunction when it relied on hearsay 9 evidence and “the many exhibits, affidavits, declarations and factual allegations which 10 have been submitted . . . by all parties . . . throughout the course of this litigation”). Any 11 evidentiary issues “properly go to weight rather than admissibility.” Am. Hotel & Lodging 12 Ass’n v. City of Los Angeles, 119 F. Supp. 3d 1177, 1185 (C.D. Cal. 2015).3 13 III. DISCUSSION 14 A. Likelihood of Success / Serious Questions 15 Plaintiff carries the burden of showing a likelihood of success on the merits (or 16 alternatively, showing “serious questions going to the merits”). See A Woman’s Friend 17 Pregnancy Res. Clinic, 901 F.3d at 1167; All. for the Wild Rockies, 865 F.3d at 1135. 18 Plaintiff argues that it “has a high likelihood of success on the merits, and at the very least 19 there are ‘serious questions going to the merits’” on the federal and state trade secret 20 misappropriation claims and breach of contract claim. (MPA 18–19.) 21 1. Trade Secret Misappropriation Claims 22 Plaintiff brings trade secret misappropriation claims against Defendant under the 23

24 25 3 Prohibitory injunctions (i.e., preventing a party from taking action) are evaluated under the traditional Winter test, while mandatory injunctions (i.e., requiring a party to take an affirmative action) are subject 26 to heightened scrutiny. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). The injunction sought here—ordering Defendant to stop the Rebuild Project—is 27 prohibitory, because such an injunction prevents Defendant from taking an action. See Kimsey v. City of Sammamish, 574 F. Supp. 3d 911, 917–18 (W.D. Wash. 2021). Thus, the traditional Winter test applies. 28 1 federal Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836 et seq., and California 2 Uniform Trade Secrets Act (“CUTSA”), Cal. Civ. Code § 3426 et seq. Both require 3 Plaintiff to show that (1) it possessed a trade secret; (2) Defendant misappropriated the 4 trade secret, and (3) Defendant’s conduct damaged Plaintiff. WeRide Corp. v. Kun Huang, 5 379 F. Supp. 3d 834, 845 (N.D. Cal. 2019), modified in part, No. 5:18-CV-07233-EJD, 6 2019 WL 5722620 (N.D. Cal. Nov. 5, 2019) (citations omitted). 7 Plaintiff’s burden includes showing that the information at issue constitutes trade 8 secrets. See Agency Solutions.Com, LLC v. TriZetto Grp., Inc., 819 F. Supp. 2d 1001, 1015 9 (E.D. Cal. 2011) (citation omitted). “A ‘trade secret’ is information that (1) derives 10 independent economic value, actual or potential, from not being generally known to, or 11 readily ascertainable by other people who can obtain economic value from its disclosure 12 or use and (2) is subject to reasonable efforts to maintain its secrecy.”4 WeRide Corp., 379 13 F. Supp. 3d at 845–46 (citing 18 U.S.C. § 1839(3); Cal. Civ. Code § 3426.1(d)). To 14 establish the existence of a trade secret, a plaintiff “need not spell out the details of the 15 trade secret,” but must first “describe the subject matter of the trade secret with sufficient 16 particularity to separate it from matters of general knowledge in the trade or of special 17 persons who are skilled in the trade, and to permit the defendant to ascertain at least the 18 boundaries within which the secret lies.” TGG Mgmt. Co. Inc. v. Petraglia, No. 19-CV- 19 2007-BAS-KSC, 2020 WL 209103, at *3 (S.D. Cal. Jan. 14, 2020) (citations modified); 20 WeRide Corp., 379 F. Supp. at 845 (citations omitted). 21 Defendant argues Plaintiff failed to describe the Alleged Trade Secrets with 22 sufficient particularity. (Opp’n 15.) The Court agrees. “A description of the category, or 23 even of the subcategories of information within a category, does not comply with the 24 requirement to identify the actual matter that is claimed to be a trade secret.” Soc. Apps, 25 LLC v. Zynga, Inc., No. 4:11-CV-04910 YGR, 2012 WL 2203063, at *4 (N.D. Cal. June 26

27 4 The DTSA and CUTSA share nearly identical definitions, except the CUTSA does not include the 28 1 14, 2012). Here, Plaintiff defines the Alleged Trade Secrets as the Platform’s “proprietary 2 source code, architectures, process flows, collection techniques, reports, and user 3 interfaces.” (MPA 3.) Plaintiff has not identified a specific file name, source code line 4 numbers, or a process shared with Defendant, such that it has properly identified a trade 5 secret. See Nifty Techs., Inc. v. Mango Techs., Inc., No. 24-CV-194 JLS (AHG), 2024 WL 6 4230486, at *9 (S.D. Cal. Sept. 17, 2024). Plaintiff has offered only “the most general 7 concepts to describe what it believes is its trade secret information.” Zynga, Inc., 2012 WL 8 2203063, at *5. This is insufficient to tie the Platform’s described capabilities—a “unique 9 way” of taking “complex retail transactions” and presenting them at a “very granular 10 information level,” (MPA 2)—to a “tangible trade secret material.” Nifty Techs., Inc., 2024 11 WL 4230486, at *9 (citation omitted). Plaintiff submits as evidence a 172-document 12 reportedly shared by Defendant to a third party, titled “PowerFolio3D Website 13 Documentation” (“Rebuild Report”), that “discloses volumes of content copied directly 14 from the PowerFolio platform, including the design and content of user interfaces, explicit 15 details about how user interfaces link to one another, and the general process flow and 16 topology of the entire platform—effectively providing a blueprint to” the PowerFolio 17 system. (Reply 1.) However, Plaintiff failed to provide sufficient “evidence indicating 18 why certain information in the documentation is unique, how it differs from other 19 presentments of information generic to the industry, or how it reveals anything with respect 20 to the underlying processes that make PowerFolio work.” (Sur-Reply 7 (emphases 21 omitted).) 22 Further, many, if not all, of the Alleged Trade Secrets cannot constitute trade secrets. 23 Plaintiff argues that the Platform’s “presentment” is “different from, and not generally 24 known to or readily ascertainable by, others in the retail energy sector.” (MPA 6.) 25 However, presentments, including reports and user interfaces, are not trade secrets because 26 they are “evident to any member of the public that uses the program.” See Agency 27 Solutions.Com, LLC, 819 F. Supp. 2d at 1021; (see also Opp’n 20.) The examples provided 28 in Plaintiff’s motion—screenshots of page headers, tables, charts, and bar graphs—appear 1 to “contain generic website functions and data presentments.” (Opp’n 20.) Specifically, 2 the page headers are a row of six boxes with common names in the energy retail sector (or 3 commonly known for websites/applications) such as “home,” “meters,” “trends,” and 4 “report.” Additionally, the “Menu” design (found under Section 2.2 of the Rebuild Report) 5 is a “key component to the unique user experience that PowerFolio creates.” (See Reply 6 6 (emphasis added).) Menu options—which are seen and accessed by a user—are generally 7 known or “readily ascertainable through reasonable means.” Additionally, it appears the 8 information and instructions contained in the Rebuild Report are related to presentment 9 information and user interfaces that are generally known or readily accessible. Indeed, 10 Plaintiff argues that the Rebuild Report “discloses volumes of content . . . including the 11 design and content of user interfaces, explicit details about how user interfaces link to one 12 another, and the general process flow and topology of the entire platform.” (Reply 1 13 (emphases added).) The “Scope” of the Rebuild Report is defined as “limited to the user 14 and functional requirements for the current PowerFolio3D Web Application.” (Dibble 15 Decl., Ex. E, Rebuild Report, ECF No. 26-1, at 3.) Thus, even if Plaintiff proved that it 16 owned the presentment and user interface information—which Defendant strongly 17 contests—this sort of information cannot constitute a trade secret. 18 Some of the Alleged Trade Secrets could constitute trade secrets notwithstanding 19 the lack of particularity, such as the Platform’s source code. However, assuming Plaintiff 20 established the source code was a trade secret, Plaintiff does not provide sufficient evidence 21 of misappropriation. “‘Misappropriation’ means acquisition of a trade secret through 22 means that the party knew or should have known were improper, such as theft or breach of 23 a duty to maintain secrecy.” WeRide Corp., 379 F. Supp. 3d at 846 (citing 18 U.S.C. § 24 1839(5); Cal. Civ. Code § 3426.1(b)). Here, Plaintiff does not argue that the Rebuild 25 Report contains a source code. Defendant contends that it does not have access to this code 26 and has not attempted to distribute the code. (Sur-Reply 3) Plaintiff has not provided 27 sufficient evidence to prove the contrary. Nor has Plaintiff sufficiently established how 28 providing a third party presentment information would or did lead to the acquisition of the 1 source code. 2 Plaintiff also argues that Defendant is “working on a project to replicate or reverse 3 engineer its pricing system (modules within inRetail).” (MPA 8.) Plaintiff submits as 4 evidence an internal meeting invitation between Defendant’s employees, titled “Pricing 5 Application/RDS,” which asks participants to “bring the existing Intel report that was 6 referenced to see if it has all the data elements we would need.” (Dibble Decl., Ex. G, ECF 7 No. 26-1.) Plaintiff argues this shows Defendant is attempting to “rewrite [Defendant’s] 8 pricing system improperly.” (MPA 17.) Defendant correctly argues that Plaintiff did not 9 sufficiently show that Plaintiff attempted to reverse engineer inRetail. (See id.) Assuming 10 the pricing system is a trade secret, the current record does not support Plaintiff’s position 11 that Defendant’s “employees were asked to bring an existing Intelometry report to a 12 meeting to enable [Defendant] to rewrite [Plaintiff’s] pricing system improperly.” (Id. at 13 13–14.) In other words, Plaintiff did not prove misappropriation. For the above reasons, 14 Plaintiff has not sufficiently shown a high likelihood of success or serious questions going 15 to the merits of its trade secret misappropriation claims. 16 2. Breach of Contract Claim 17 In California, “[a] cause of action for breach of contract requires proof of the 18 following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for 19 nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the 20 breach.” CDF Firefighters v. Maldonado, 70 Cal. Rptr. 3d 667, 679 (Ct. App. 2008). The 21 parties agree that they entered into a contract; however, they disagree whether Defendant’s 22 actions—sending information relating to PowerFolio to the third party—constitutes a 23 breach. 24 First, Plaintiff argues that Defendant’s “ongoing efforts to replicate and reverse 25 engineer the Platform,” specifically inRetail’s pricing system, plainly violates its 26 contractual obligations. (MPA 18.) Similar to above, Plaintiff does not provide sufficient 27 evidence that Defendant sought to reverse engineer inRetail’s pricing system. (Opp’n 13.) 28 While the calendar meeting invitation tells participants to “bring the existing Intel[ometry] 1 report that was referenced to see if it has all the data elements we would need,” Plaintiff 2 does not provide context as to what this report could be or why that would “allow Plaintiff 3 to rewrite Defendant’s pricing system.” (Id. at 13, 14.) And while the Rebuild Report 4 contains screenshots of PowerFolio’s interface, Plaintiff does not explain how the Rebuild 5 Report would allow a third party to reverse engineer the entirety of the Platform beyond a 6 general assertion that it provides a “blueprint” to the PowerFolio system. The Court does 7 not find a high likelihood of success or serious questions going to the merits under this 8 theory. 9 Next, Plaintiff argues that Defendant’s efforts violated its agreement that it would 10 “not permit anyone to use or have access to the Software or any know-how, techniques, 11 ideas, designs, concepts, improvements, discoveries, or algorithms, employed in the 12 Software for any purpose other than the Authorized Use.” (Reply 1.) Defendant argues 13 that Plaintiff has not “seriously tried to show” that the information Defendant shared with 14 the potential third-party consultant concerning PowerFolio belong to Plaintiff rather than 15 Defendant. (Opp’n 11.) Defendant seems to argue because it “owns much of the relevant 16 intellectual property,” it had full ability to share with third parties the ideas, designs, and 17 concepts it created and contributed. (See id. at 11–12.) The Agreements indeed 18 demonstrate that Defendant contributed at least some “relevant intellectual property” and 19 retained ownership of its “pre-existing invention, work of authorship, drawing, design, 20 formula, algorithm, utility, tool, pattern,” et cetera. (Id. at 6, 11.) However, Plaintiff argues 21 that Defendant greatly exaggerated its role in the development of the Platform. (Reply 5– 22 6.) Each side submits declarations from current and former employees to prove its 23 respective position. The Agreements state that Defendant may not share, copy, or prepare 24 derivative works of the Platform and will not give third parties access to the Platform, 25 which includes PowerFolio: 26 Neither the Company nor any of the Authorized Users shall, directly or indirectly . . . reverse engineer, attempt to reverse engineer, copy, modify, or 27 prepare derivative works of the Software. Company hereby agrees that it will 28 not permit anyone to use or have access to the Software or any know-how, 1 techniques, ideas, designs, concepts, improvements, discoveries or algorithms employed in the Software for any purpose other [than] the Authorized Use. 2 3 (Dibble Decl., Ex. A, ECF No. 26-1, at 1; MPA 4–5.) This provision does not place any 4 limitations on the know-how, techniques, ideas, designs, concepts, improvements, 5 discoveries or algorithms that Plaintiff owns. In other words, regardless of ownership, 6 there is a possibility that the Agreements do not permit Defendant to share designs or 7 concepts contained in the PowerFolio application. Similarly, the confidentiality provision 8 broadly includes designs, drawings, models, diagrams, flow charts, and materials without 9 limitation to those that Plaintiff owns. (MPA 5–6.) The Rebuild Report sent by Defendant 10 contains multiple screenshots of the PowerFolio interface. (Dibble Decl., Exs. D, E, ECF 11 No. 26-1.) Thus, based on this record, the Court finds there are serious questions going to 12 the merits of Plaintiff’s breach of contract claim under this theory. 13 B. Likelihood of Irreparable Harm 14 While the Court finds there are serious questions going to the merits of Plaintiff’s 15 breach of contract claim, Plaintiff “has not demonstrated any likelihood of irreparable 16 harm.” Brandr Grp., LLC v. Elec. Arts Inc., No. 23-CV-02994-HSG, 2023 WL 4297571, 17 at *3 (N.D. Cal. June 30, 2023). Plaintiff argues that it faces “[i]ntangible injuries, such as 18 loss of intellectual property rights, damage to business goodwill and ongoing business 19 development efforts,” which are not “easily remedied by money damages.” (MPA 20.) 20 However, “preliminary injunctions are rarely issued for breach of contract claims.” Brandr 21 Grp., LLC, 2023 WL 4297571, at *3; see Telephia Inc. v. Cuppy, No. C 04-03508 SI, 2005 22 WL 588441, at *3 (N.D. Cal. Mar. 11, 2005) (“[A] claim for breach of contract can be 23 compensated by money damages, and does not warrant the issuance of a preliminary 24 injunction.”). Thus, assuming the Court finds these harms were likely to occur, “injunctive 25 remedy would nonetheless be unavailable in this court because the harm arises from breach 26 of contract, not trade secret misappropriation.” Agency Solutions.Com, LLC, 819 F. Supp. 27 2d at 1031. Plaintiff therefore fails to meet the second Winter factor as to its breach of 28 1 contract claim. 2 Considering the above and based on the current record, Plaintiff fails to meet all four 3 || Winter factors for its trade secret misappropriation claims and breach of contract claim. 4 || Accordingly, the Court must deny preliminary injunction relief. A Woman’s Friend 5 || Pregnancy Res. Clinic, 901 F.3d at 1167 (“A plaintiff must make a showing on all four 6 || prongs to obtain a preliminary injunction.”).° 7 IV. CONCLUSION AND ORDER 8 In sum, the Court DENIES Plaintiffs motion for preliminary injunction and 9 || DENIES Defendant’s request for judicial notice. Further, the Court previously tolled 10 || Defendant’s responsive pleading deadline pending the outcome of this motion. Defendant 11 || will FILE its responsive pleading within fourteen (14) days of entry of this Order. 12 IT IS SO ORDERED. Dated: April 6, 2026 2» vv, Yn. I Hon. Dana M. Sabraw 15 United States District Judge 16 17 18 19 20 21 22 23 24 200 26 ||° Because the Court did not rely on the exhibits to the sur-reply when deciding the motion, the Court DENIES Defendant’s request for judicial notice as moot. Mikulsky v. Noom, Inc., 23-cv-00285, 2024 WL 27 ||251171, at *2 n.2 (S.D. Cal. Jan. 22, 2024) (denying the defendant’ request for judicial notice of a privacy 3g || policy because the Court’s analysis did not rely on that policy). The Court also OVERRULES the parties’ objections to the declarations. 1A