Free Motion for Attorney Fees - District Court of Arizona - Arizona

I 1 conspired to unlawfully take Plaintiffs proprietary information and use it to unfairly
2 establish a competing business and cause damage to Plaintiff. 2nd Supp. Cornpl. 111] 80-81.
3 Defendants argue that although they formed Sonoran Gate together, there is insufficient
4 evidence to show an unlawful conspiracy. Mot. at 15-16. Defendants further argue that their
5 actions have not caused Plaintiff any damages. ld at 16.
6 "‘For a civil conspiracy to occur two or more people must agree to accomplish an
7 unlawful purpose or to accomplish a lawful object by unlawful means, causing damages."’
8. Baker v. Stewart Title & Tritst of Phoenbt, 5 P.3d 249, 1[ 30 (Ariz. Ct. App. 2000) (quoting
_ 9 Rowland v. Union Hills Country Club, 757 P.2d 105, 110 (Ariz. 1988)); see Wells Fargo
t0 Bank v. Arte. Laborers, 38 P.3d 12, 1] 99 (Ariz. 2002). "[A] conspirator is liable for any
1 1 tottious act, even unknown, committed in furtherance of the conspiracy, including acts not
12 personally committed." Baker, 5 P.3d at 1| 31. "The existence of a conspiracy may be
13 inferred from the nature of the acts, the relationship of the parties, ‘the interests of the
14 conspirators, or other circumstances,’ and ‘express agreement or tacit concerfwill, if proven,
15 suffice to create liability.’“ Mohave Elec. Coop., Inc. v. Byers, 942 P.2d 451, 465 (Ariz. Ct.
I6 App. 1997) (citation omitted).
17 Construed in Plaintiffs favor, the evidence shows that 0’Connor and Kammeizell
18 entered into an agreement to form a competing company and sought to accomplish that goal
l 19 by unlawfully committing trespass on Plaintiffs property by taking pictures of Plaintiffs
20 gates without its knowledge or authorization. Opp’n at 17; SOF 111 13-17. Defendants
21 contend, without citing any legal authority, that while the evidence may support a claim of
22 trespass independently against each Defendant, it does not demonstrate a meeting of the
23 minds between the two. Reply at 10.
24 "Questions involving a person’s state of mind,“ however, "are generally factual
25 issues inappropriate for resolution by summary judgment? Braxton-Secret v. Robins Co.,
26 769 F .2d 528, 531 (9th Cir. 1985); see Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d
27 1283, 1302-04 (9th Cir. 1999) (reversing summary judgment for the defendants because
28 issues of fact existed regarding their intent) (citing Braxton-Secret, 769 F.2d at 531).
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1 Moreover, Plaintiff is permitted to prove that Defendants were tacitly acting in concert by
2 presenting circumstantial evidence of their close business relationship and common interests
3 and the unlawful nature of their acts. See Mohave Elec. Coop., 942 P.2d at 465 (reversing
4 summary judgment for the defendant "because a litigant can proffer circumstantial or
5 inferential evidence to prove that parties were acting in concert").
6 Plaintiff, however, has presented no evidence that it has been damaged by the alleged
7 conspiracy. As noted above, "Rule 56(c) mandates the entry of summary judgment, after
8 adequate time for discovery and upon motion, against a party who fails to make a showing
9 sufficient to establish the existence of an element essential to that party's case, and on which
10 that party will bear the burden of proof at tria1." Celotex, 477 U.S. at 322. Because Plaintiff
l l has presented no evidence of damages and merely asserts, without factual support, that "the
12 worth of [True Center] is now far less because of the tortious acts" of Defendants (Resp. at
13 18), summary judgment is required with respect to the fifth cause of action. See Baker, S
14 P.3d at 1] 30 (listing damages is an essential element of a civil conspiracy claim).
15 . 5. The Seventh Cause of Action: Breach of Contract.
16 Plaintiff alleges in the seventh cause of action that Plaintiff and K-Zell entered into
17 a nondisclosure and confidentiality agreement similar to the agreement attached to the second
18 supplemental complaint. 2nd Supp. Compl. 1] 90, Ex. A. Plaintiff further alleges that
19 K-Zell’s breach of the agreement has damaged Plaintiff Id. 1]1] 91-93.
20 K-Zell has presented evidence that the agreement was entered into by Plaintiff and
21 Donald Kammerzell in his individual capacity during the negotiations regarding the sale of
22 Tnre Center. Def.’s SOF 111] 46-48, Ex. F.'5 K-Zell argues that it is not liable for breach of
23 the agreement because it was not a party to the agreement. Mot. at 17; Reply at 1 l. K-Zell
24 further argues that it is not liable because Plaintiffs representatives testified that any breach
25 ofthe agreement has not caused Plaintiff damages. Mot. at 18; Reply at l 1; SOF 1] 50.
26
27 ‘ Exhibit F is a copy of a nondisclosure and confidentiality agreement signed by
28 Kammerzell and the late Clay Puett on February 5, 1993.
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I Plaintiff does not dispute that the agreement was between Plaintiff and Kammerzell,
2 not K-Zell. Plaintiff states only that Mrs. Puett recalls that it was the intent ofthe Puetts that
3 K-Zell would be bound by the agreement. Opp’n at 18; SOF 1] 18. Plaintiff contends,
4 without citing any legal authority, that K-Zell should be bound by the agreement because
5 Karnmerzell owns K-Zell. ld. at I9.
6 Plaintiff has not presented any evidence of an agreement between Plaintiff and K-Zell
7 or an intention by K-Zell to be bound by the agreement between Plaintiff and Kammctzell.
8 Nor has Plaintiff presented any evidence that it has been damaged or is likely to be damaged
9 by any breach of the agreement. The Court will accordingly grant the motion for summary
I0 judgment with respect to the seventh cause of action.
ll 6. The Eighth Cause of Action: Violation of the Uniform Trade
I2 Secrets Act.
13 Plaintiff alleges in the eighth cause of action that Defendants have misappropriated
I4 Plaintiffs trade secrets in violation of the Uniform Trade Secrets Act ("Act"), A.R.S.
I5 §§ 44-401 et seq. The Act defines a “trade secret" as follows:
I6 "Trade secret" means information, including a formula, pattern, compilation,
17 program, device, method, technique or process that both:
(a) Derives independent economic value, actual or potential, from not being
l8 generally known to, and not being readily ascertainable by roper means by,
I9 other persons who can obtain economic value from its disclgsure or use.
20 (Tbgillsatlgesggbgggt of efforts that are reasonable under the circumstances to
21 A.R.S. § 40l(4)(a)-(b). "Tbis rather expansive definition emphasizes the secrecy of the
22 alleged trade secret, as well as the competitive advantage afforded by it." Enter. Leasing Co.
23 of Phoenix v. Ehmke, 3 P.3d 1064,1 14 (Ariz. Ct. App. 1999). "OnIy those secrets affording
24 a demonstrable competitive advantage may properly be considered a trade secret. Value will
25 be inferred if the owner can show that the information confers upon it an economic
26 advantage over others in the industry." Id. 1] 20 (citations omitted).
27 Plaintiff alleges that the following information constitutes trade secrets: (1) what
28 works and does not work in terms of gates, (2) the different preferences that each race track
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