St. Matthews Chuches v. Kachavos

Filed 3/23/07 St. Matthews Chuches v. Kachavos CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, George H. Wu, Judge. Affirmed.

Deems Law Offices and Joseph E. Deems for Defendant and Appellant.

Lewis Brisbois Bisgaard & Smith, Steven G. Gatley and Jeffry A. Miller for Plaintiff and Respondent.

* * * * * *

Valerija Kachavos appeals from a judgment in favor of Saint Matthews Churches (SMC) following a bench trial. The trial court found Kachavos misappropriated a trade secret owned by SMC in violation of the Uniform Trade Secrets Act (Civ. Code, 3426 et seq.) (UTSA). The trade secret in question is the national membership list of SMC containing sensitive and confidential personal information about SMC members, including member tithes, offerings, history of contacts and personal communications with SMC. In addition to finding Kachavos misappropriated a trade secret, the court also issued a permanent injunction requiring Kachavos to return the membership list to SMC. It further ordered Kachavos to pay SMC attorney fees of $7,500. We affirm.

FACTS^[1]

SMC is a tax exempt nonprofit religious organization that has existed under different names for over 40 years. Most of SMCs membership derives from mailings that include gospel literature, evangelistic literature, books, magazines and sermon prayer letters.

SMC maintains a national membership list that includes the names of SMC members throughout the United States and personal information about them, including their address, identification number, tithes given and history of activity with SMC. The membership list includes information about SMCs members built up over time, information important to any church.

Although SMC rents mailing lists from commercial vendors, only people who respond to the mailings are placed onto SMCs membership list. The list includes both members who donate money to the ministry and those who do not.

SMC has always considered its membership list to be highly confidential, and its members in turn expect their information to be kept confidential. SMC employs unique methods in tracking and updating its membership. It considers the methods used to create and maintain the membership list to be confidential. The membership list, if sold or otherwise disclosed, would be of substantial financial benefit to another church or organization. SMC has never sold, loaned, rented or provided its membership list to any other individual or organization.

SMC takes various steps to secure its membership list from others. It keeps the list locked in a secure location. Only people who work on the list or who have a need to know have access to the list. Several employees, including Kachavos, had motion activated cameras on their personal computers because they were working with sensitive information about members donations and money reports. To maintain confidentiality, SMC has spiked its membership list by planting names on the list that would alert SMC if other organizations should attempt to use its list.

SMC created the spike system after an employee used a copy of the list to solicit funds for another organization in the late 1960s or early 1970s. The employees conduct greatly disturbed the membership and caused such a reduction in tithes and offerings that the church had to declare bankruptcy and start over. About the same time, SMC obtained a restraining order against another employee who let another organization have part of the list. SMC was able to stop this attempted use before it got too far along.

All SMC employees, including Kachavos, received employee manuals that included both a Client Confidentiality section and a Code of Ethics. SMC mandated that employees follow the Code of Ethics to maintain the integrity of the membership list.

In 1993, SMC hired Kachavos because of her proficiency with the database program that SMC used. Kachavoss main duty was to update the membership list once a month to post new information, including any tithes, donations or responses that may have come in during the preceding month. She also did passes to determine if there were membership duplications and to ensure that membership information was correctly posted to the master record. Although other people worked with Kachavos, she was the only SMC employee who did the passes for SMC from 1995 to 2002.

The passes had to be done as quickly as possible at the end of each month after membership information was updated. Therefore, Kachavos was allowed to take the membership list home to do the passes. Only highly trusted employees were permitted to work with church property at home.

When Kachavos worked at home, she would receive the membership list on a DDS (Digital Data Storage) tape, a data compression (zipped) disk or a compact disk (CD). After taking the membership list home in one of the three formats, Kachavos would download the information onto her home computers hard drive. She did the passes on her home computer and copied the new file onto one of the three formats to send back to SMC. Kachavos did not always erase the material from her home computer hard drive after she had performed her work. She sometimes maintained the information at home even after receiving the new months information. As of July 2002, Kachavos had approximately five to seven months worth of newly updated membership lists on her home computer hard drive.

In August 2002, SMC terminated Kachavoss employment.^[2] SMC vice president Ray McElrath personally terminated Kachavos and asked her to sign a written agreement. The agreement asked her to return all church property and requested her to keep the churchs activity confidential. In exchange, the agreement provided that SMC would give Kachavos three months severance pay. McElrath gave Kachavos the written document because he knew she had been working from home and had computer equipment and other property belonging to SMC.

Kachavos refused to sign the agreement and retained counsel three days later.

Kachavos subsequently returned certain church property to SMC but retained SMCs membership lists on her home computer hard drive. She did not inform SMC she had this information despite several opportunities to do so at and after her termination. Although Kachavos did not consider the SMC membership list information on her hard drive to be her personal property, she intentionally omitted listing the membership list on an inventory she prepared for SMC. She testified she believed she had to give the membership list to governmental authorities because SMC was doing something illegal. Several months after her termination, Kachavos transferred the SMC membership lists on her old computers hard drive to a new computer. In 2004, she downloaded the master membership lists onto disks. She gave the disks to her attorney and believed he gave them to several governmental agencies.

PROCEDURAL HISTORY

After discovering Kachavos had retained copies of SMCs master membership list after her termination, SMC filed this action against her for misappropriation of trade secrets and for injunctive relief.

Following Kachavoss opening statement to the court, SMC moved for judgment on the basis that counsel for Kachavos had admitted during his opening statement that Kachavos had misappropriated the membership list. The trial court denied SMCs motion, finding Kachavoss opening statement still left open the issue whether SMC kept the list with a sufficient degree of confidentiality so as to constitute a trade secret. SMC accordingly put on its evidence. After SMC concluded its case-in-chief, Kachavos moved for judgment in turn. Kachavos contended she had acquired the membership list by proper means and SMC had not met its burden of showing the membership list constituted a trade secret. After a lengthy argument, the transcription of which is largely unintelligible,^[3]the trial court denied Kachavoss motion for judgment.^[4]

Following additional argument, the trial court expressed a tentative opinion, saying it was inclined at that point to grant SMC an injunction and attorney fees of $7,500. The court stated it would give both sides an opportunity to think about the tentative ruling overnight and either party could elect to go forward, but if I make a further determination, I may decide not to award any attorneys fees at all, or I may decide to increase the attorneys fees amount.

The next morning, SMC indicated it would accept the courts tentative ruling. Counsel for Kachavos also indicated his consent so long as it was not deemed a stipulation to the judgment. Both parties waived a statement of decision.

The trial court issued a judgment based upon its tentative ruling. The court determined: (1) SMCs membership list constituted a trade secret that derived independent value and was subject to reasonable efforts under the circumstances to maintain its secrecy (see Civ. Code, 3426.1, subd. (d)(1) & (2)); (2) Kachavos obtained the membership list through improper means (see Civ. Code, 3426.1, subd. (a)); and (3) Kachavos misappropriated the membership list (see Civ. Code, 3426.1, subd. (b)(2)(B)(ii)). The judgment included a permanent injunction order requiring Kachavos and her agents, including her attorneys, to return to SMC all copies and originals of the membership list not turned over to federal authorities (see Civ. Code, 3426.2; Code Civ. Proc., 525, 526). The court retained jurisdiction to resolve any disputes over compliance with the injunction order. It also awarded SMC attorney fees of $7,500 plus costs against Kachavos (Civ. Code, 3426.4).

DISCUSSION

1. Sufficiency of Trial Evidence To Support Factual Findings

Kachavos concedes that whether information constitutes a trade secret is an issue of fact. She essentially contends, however, that the trial evidence is insufficient to support a finding that SMCs membership list is a trade secret. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Her opening brief contains only a recitation of the evidence in her favor and ignores the evidence favoring SMC. An appellant asserting that an issue of fact is not sustained by the evidence is  required to set forth in [her] brief all the material evidence on the point and not merely [her] own evidence. Unless this is done the error is deemed to be waived.  (Ibid., italics omitted.) It is clear that an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

In this case, as our recitation of the facts indicates, a substantial amount of evidence was received on SMCs behalf. Kachavos purports to attack the sufficiency of trial evidence without a fair recitation of all the evidence, favorable and unfavorable to her. We thus deem her contention to have been waived.^[5]

2. Admission of Redacted Exhibit

Kachavos contends the trial court erred in admitting only a redacted and abbreviated church membership list as an exhibit at trial. Kachavos argues the exemplar exhibit (trial exhibit 1) was only a few pages in length and one could not even determine what the paper represented from the face of the redacted exhibit alone. We find no error in the courts admission of the exemplar.

UTSA provides for the preservation of confidentiality of alleged trade secrets.^[6] Under UTSA, the court is vested with broad discretion to protect an alleged trade secret from dissemination. (Civ. Code, 3426.5; see Evid. Code, 1060; State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 650-651.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) The trial court did not exceed the bounds of reason under the circumstances.

At the start of trial, SMC moved in limine to preserve the secrecy of the membership list. The trial court mentioned the possibility of using an exemplar, and counsel for SMC suggested the use of exhibit 1, an exemplar of the original list that had certain information redacted in the interest of privacy. The court later clarified to counsel that [m]y ruling . . . was that we just use an exemplar when talking about what normally would be contained in the . . . membership list and that if either side wanted to have a specific portion or all of the list put into the record, we . . . have [an Evidence Code section] 402 on the matter.

However, Kachavos never requested an Evidence Code section 402 hearing. The court proceeded to hear evidence and heard undisputed testimony that the membership list contained sensitive information associated with individual church members, such as names, addresses, tithing and donation history and other related information. The court admitted the redacted exemplar as an exhibit and allowed SMCs counsel to use the exhibit to question witnesses.

On appeal, Kachavos argues the court erred in admitting the exhibit because [i]f an original document is available it must be used under the best evidence rule.  (Boldface omitted.) Under what is presently referred to as the secondary evidence rule, the content of a writing may be proved by otherwise admissible secondary evidence unless the court determines that (1) a genuine dispute exists concerning material terms of the writing and justice requires its exclusion, or (2) the admission of the secondary evidence would be unfair. (Evid. Code, 1521, subd. (a); see Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group (2006) 8:375, p. 8C-30.) There was no significant dispute concerning the contents of the exhibit and Kachavos made no showing that the admission of the exemplar was unfair. An employee of SMC properly authenticated the exemplar, testifying from her personal knowledge that the exhibit constituted a representative sampling of the entire membership list of SMC with all of the relevant fields. SMC proffered evidence that established the redacted list accurately represented information appearing on the original master membership list. The original itself was available in the courtroom for in camera review if the court had any questions regarding the exhibits trustworthiness or authenticity, which it did not.^[7]

Kachavos also suggests the exemplar should have been excluded as inadmissible hearsay. We disagree. Testimony from several witnesses identified the exemplar as being representative of the master list, which was created by SMC in the regular course of business, establishing its trustworthiness. (See Evid. Code, 1271.)

The court therefore did not abuse its discretion is admitting an exemplar of the membership list as an exhibit.

3. SMC Membership List as Trade Secret

Under UTSA, a trade secret consists of information, including a formula, pattern, compilation, program, device, method, technique, or process that (1) [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Civ. Code, 3426.1, subd. (d).) A customer list may qualify as a trade secret. (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1521; ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 18-21; American Credit Indemnity Co. v. Sacks (1989) 213 Cal.App.3d 622, 630-631.) Disclosure or use under UTSA must be given a broad interpretation to carry out its purposes. (See Sacks, supra, at pp. 632-633.) UTSA proscribes the disclosure or use of a trade secret, without express or implied consent, by a person who acquired such information under circumstances giving rise to a duty to maintain its secrecy or limit its use. (Civ. Code, 3426.1, subd. (b)(2)(B)(ii).) UTSA provides that an [a]ctual or threatened misappropriation may be enjoined. (Civ. Code, 3426.2, subd. (a), italics added; see also ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1018-1019.)

Appellant bears a heavy burden here. On appeal, judgments and orders of the lower courts are presumed correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If a case is tried to the court, the court need only issue a statement of decision upon request of a party. (Code Civ. Proc., 632; Cal. Rules of Court, rule 3.1590(e).) In this case, neither party requested a statement of decision. Therefore, as a reviewing court we imply all findings necessary to support the judgment so long as the record contains substantial evidence to support the implied findings. (In re Marriage of Cohn (2002) 65 Cal.App.4th 923, 928.) As noted, ante, Kachavos has waived any argument that there is no substantial evidence in the record to support the trial courts findings by her failure to fairly and fully present the evidence before the court. We will accordingly presume the trial court made all the necessary factual findings to support its determination that SMCs membership list qualifies as a trade secret.

Nevertheless, Kachavos raises various arguments. She asserts SMCs membership list had already been stolen and made public, referring to the incidents in the late 1960s or early 1970s when two employees attempted to misappropriate SMCs membership list. Kachavos also argues that SMCs solicitation letters were outsourced for printing and mailing and complains that the first SMC employee manual containing a confidentiality provision was not issued until 1999, years after SMC had begun compiling its membership list. She notes that SMC did not take advantage of various available security precautions such as electronic sensors attached to documents, locked briefcases for transporting documents or photo identifications. She questions the veracity of the SMC witnesses who testified that only a limited number of people had access to the membership list. These arguments seek to have this court reweigh the evidence. The trial court determined that SMC made reasonable efforts under the circumstances to maintain the secrecy of its membership list. The mere fact that others may have attempted to misappropriate the trade secret in the past for which SMC sought a legal remedy does not thereby make the trade secret public.

We also reject Kachavoss claim that SMCs failure to obtain from her a signed confidentiality agreement established its failure to ensure the confidentiality of the membership list. When the owner of a trade secret has taken reasonable steps to insure the secrecy of its protected information, a former employees failure to sign a confidentiality agreement alone will not defeat UTSAs protection. (American Credit Indemnity Co. v. Sacks, supra, 213 Cal.App.3d at p. 631, fn. 6 [defendants assertion she never signed confidentiality agreement does not alter our analysis].)

We further disagree with Kachavoss contention that there is no evidence she misappropriated a trade secret. There is no question that Kachavos acquired SMCs membership list under circumstances giving rise to a duty to maintain its secrecy or limit its use. Kachavos was a trusted employee who was granted the special privilege of working at home. Only those with a need to know were given access to the membership list, which Kachavos admitted contained sensitive information. Although Kachavos claims SMC never asked for its list back, the record does not support this claim. When McElrath terminated Kachavoss employment, he asked her to return all the churchs property. (Italics added.) SMC was unaware Kachavos was keeping or had kept copies of its membership lists on her personal computer hard drive instead of erasing them after finishing her months work.

The trial court properly ruled that Kachavoss failure to return SMCs membership list information upon demand was misappropriation.

4. Attorney Fees

The court may award attorney fees if it finds that willful and malicious misappropriation exists. (Civ. Code, 3426.4.)^[8] Kachavos contends the trial court erred in awarding SMC such attorney fees. We disagree.

The court has broad discretion in ruling on a motion for attorney fees under UTSA. (See Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1262 [applying bad faith standard].)  In reviewing the facts which led the trial court to impose sanctions, we must accept the version thereof which supports the trial courts determination, and must indulge in the inferences which favor its findings.  (Id. at pp. 1262-1263.)

There is substantial evidence to support attorney fees here. There was evidence Kachavos intentionally failed to disclose she had past versions of the membership list stored on her home computer even though she had numerous opportunities to inform SMC. She gave SMC an inventory that deliberately left off the membership list as an item of church property. After the termination of her employment, she transferred the membership list from the hard drive of her old computer to her new computer. She transferred the membership list again when she downloaded it from the hard drive onto data storage before giving the membership list to her attorney. Moreover, it must be presumed the trial court made whatever findings of fact are necessary to support its award of attorney fees since Kachavos did not request a statement of decision. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647, 649.)

5. Due Process

Without citing any case or other legal authority, Kachavos argues she was denied due process when the trial court gave an oral tentative decision at the conclusion of SMCs case-in-chief. She claims the trial judges comments amounted to Judicial Blackmail, denying her due process. We disagree.

The events leading to the trial courts tentative decision are as follows. Soon after appearing in this case, Kachavos filed a special motion to strike the action as a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., 425.16.) Kachavos raised substantially the same issues in her special motion to strike that she later raised at trial and in this appeal. The trial court denied the special motion to strike. SMC then brought a motion for summary judgment on the grounds that the material facts were not in dispute and Kachavos had no defense to the action. SMC contended it was entitled to judgment as a matter of law because the undisputed facts established that Kachavos had misappropriated SMCs confidential membership list. SMC argued it was entitled to a permanent injunction, attorney fees and punitive damages. The court tentatively denied SMCs motion for summary judgment, reasoning that the motion should have been brought as a motion for summary adjudication and it would be error for a court rather than a jury to award punitive damages. The court requested, and the parties provided, supplemental briefing on these issues.^[9]

After considering the parties supplemental briefing, the trial court ultimately denied SMCs motion for summary judgment. The court found that SMCs membership list was a protected trade secret and that Kachavos had kept a copy of the customer list. However, the court determined there were triable issues of fact as to whether SMC was damaged by Kachavoss conduct and whether her misappropriation was willful and malicious, a prerequisite for an award of punitive damages or attorney fees. (Civ. Code, 3426.3, subd. (c), 3426.4.)

The parties offered extensive evidence to the court in support of and in opposition to the special motion to strike and the motion for summary judgment. The parties also raised substantially the same issues during discovery disputes and in motions in limine before trial. By the time of trial, the court was well familiar with the parties positions and the evidence on which they relied.

At trial, as noted previously, SMC moved for judgment at the conclusion of Kachavoss opening statement on the basis that Kachavoss counsel had admitted she had misappropriated the membership list. The trial court denied SMCs motion, ruling the admission still left open the issue whether SMC had maintained the confidentiality of the list. SMC then put on its evidence, including evidence establishing the confidentiality of the membership list, after which Kachavos moved for judgment.

After an extended discussion, the court denied Kachavoss motion for judgment and directed Kachavoss counsel to put on his evidence. When counsel indicated he would recall Kachavos as a witness, the court asked, Why are you calling her back to the stand? Counsel responded, Well, to cover with her [sic]. The court stated, Let me put youre going to lose on . . . [the] injunction[;] the question [is,] are you going to lose on damages?

The court and counsel then drifted into a discussion of whether SMC was entitled to damages in the form of attorney fees. Once both counsel had offered their opinions on attorney fees, the court remarked, This is what the court will do. This is a tentative. I will allow both sides to think about this and decide what you are going to do tomorrow. [] I would award attorneys fees at this point in time but in the sum of $7,500. If either side is unhappy with that, they can elect to go forward ‑‑ . . . either side can elect to go forward. [] But if I make a further determination, I may decide not to award any attorneys fees at all, or I may decide to increase the attorneys fees amount. [] Thats a choice both sides have at this point. And Im not particularly enthralled with the position of either side in this litigation. Kachavoss counsel inquired, Is it the courts tentative belief that the court is going to grant an injunction in this case? The court replied, Oh, definitely. I would issue an injunction in this case.

Kachavoss counsel then inquired about the subject matter of the injunction, and the court indicated the injunction would solely require Kachavos and all of her agents, including her attorney, to return all copies of SMCs membership list in any way, shape, or form. Such an injunction, the court noted, would still leave Kachavos free . . . to talk about . . . her activities and things of that sort to any law enforcement agency. The court adjourned the court proceedings for the day to give both parties the opportunity to think about the tentative ruling overnight.

The next day, when the court reconvened, the following transpired:

THE COURT: All right. Back on the record. [] Let me ask counsel. Have you discussed what you wanted to do with this matter now?

MR. GATLEY [SMCs counsel]: On behalf of plaintiff, Your Honor, we will accept Your Honors tentative ruling.

THE COURT: All right. [] For the defense.

MR. DEEMS [Kachavoss counsel]: On the defense side, I have one piece of house cleaning ‑‑ Im going to be consistent with him but I do have one piece of house cleaning.

Kachavoss counsel went on to raise an inconsequential question regarding the handling of an exhibit. After both counsel reached an agreement regarding the exhibits handling, the court indicated it would enter a judgment consistent with the tentative decision, noting, I dont think I need to make a statement of decision since I have already made the statement of decision more or less on the record. The court then inquired, Is there anything else the court . . . needs to do other than . . . return the exhibits to respective counsel? Kachavoss counsel replied, Your Honor, the only thing that I would add to what the court has stated is that I do want the record to reflect the fact . . . that as far as the defense is concerned in this matter, that I do not consider this a stipulation to the judgment. The court indicated, I understand that. I basically . . . have issued a judgment. . . . Obviously, if the defendant disagrees with the . . . substantive ruling, there is a basis for an appeal . . . . (Italics added.) Kachavoss counsel responded, Okay.

The record thus discloses no partiality or blackmail on the part of the trial judge. The procedure the trial court followed was not a denial of due process. The court never precluded Kachavos from calling her witnesses or proceeding with her defense. After both parties had moved for an early resolution, the trial judge tentatively voiced how he would rule at that point in the case. He adjourned the court for the day to give the parties time to consider the tentative ruling overnight. The next day, SMCs counsel indicated he would accept the courts tentative ruling and, after ensuring acceptance would not preclude an appeal on the substantive merits, Kachavoss counsel did as well. Kachavos went along with the courts proposed procedure to enter an immediate judgment. She did not voice an objection, although she had ample opportunity to do so. Though Kachavos later filed written objections to the proposed judgment in the trial court, she directed her objections only to the substantive content of the proposed judgment.^[10] The parties had presented the substance of their cases in their prior motions and the court was well familiar with the parties positions and the evidence they relied upon in the case. Kachavos failed to object or make a record of any additional matters she could have or would have shown had the court continued to take evidence at trial.^[11]

6. First Amendment Right

Kachavos claims the injunction order is overbroad and a prior restraint on free speech. We disagree. The injunctive order is narrowly drawn and does not preclude Kachavos from speaking her mind with regard to SMC. It merely requires her to return all copies or originals of the membership list in her or her attorneys possession to SMC. An injunction requiring return of church property does not implicate free speech and does not constitute a prior restraint on speech. The court order, moreover, does not prevent Kachavos or her attorney from communicating with law enforcement agencies. It specifically provides that [d]efendant and her attorney of record are free to communicate and/or report to any law enforcement agency any actual, threatened or suspected violations of law. The courts injunction order therefore does not infringe on Kachavoss free speech rights.

7. Stay of Proceedings

Kachavos asserts the trial court abused its discretion by failing to stay this action pending the resolution of a federal Racketeer Influenced and Corrupt Organizations (see 18 U.S.C.A. 1961 et seq.) suit between the parties. We disagree.

When an action is brought in California that involves the same parties and the same subject matter as an action already pending in a court of another jurisdiction, the court has discretion to stay the California proceeding. (Farmland Irrigation Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) Here, there was no action involving the same parties and same subject matter pending when SMC filed the present action. Kachavos brought her RICO action in federal court only after SMC had already commenced this lawsuit. The instant action and the federal action also do not involve the same subject matters. The present action is for misappropriation of a trade secret. The federal action attacks SMCs direct mailing procedures for the transmission of evangelical materials to its members and to the general public. We find no abuse of discretion in the trial courts refusal to stay the present action in favor of the later-filed unrelated federal action.

DISPOSITION

The judgment is affirmed. Respondent is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Appellants statement of facts in her opening brief violates the rules of court in containing not a single citation to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record] and (a)(2)(C) [appellants opening brief must [p]rovide a summary of the significant facts limited to matters in the record].) We accordingly strike that portion of the opening brief and take the statement of facts primarily from the respondents brief. (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560-1561; Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 391.)

In a late-filed reply brief, Kachavos takes issue with numerous facts set forth in SMCs brief. In doing so, Kachavos mistakes our function. We do not hear evidence in the first instance or judge credibility, but rather review the record for claimed error.

^[2] The reasons for Kachavoss termination were in dispute. SMC claimed Kachavos was terminated for dishonesty and insubordination. Kachavos claimed she was wrongfully terminated. She filed a separate action against SMC after it commenced this action.

^[3] It is the appellants duty to provide this court with a sufficient record on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 518, p. 562.) Appellant failed to seek correction of the reporters transcript of the proceedings to satisfy this burden.

^[4] Counsel for Kachavos argued the evidence showed the membership list only contains the information of people who have paid money. The court responded, Exactly. Counsel rejoined, Over some period of time. To which the court replied, Thats [the] reason why its so valuable. The court explained, all the other elements are met. It is information which they have culled out over a period of time[;] . . . the initial part of that information they clearly paid for and from that, they have done more things to it. They . . . try to keep it under confidentiality, theres been testimony about cameras [and] security systems, there is a[n] employee manual that has a confidentiality provision in it. I see no evidence that they flagrantly disregarded it.

^[5] Even if Kachavos had not waived the issue, we find there is substantial evidence to support the trial courts findings based on our review of the record.

^[6] Civil Code section 3426.5 provides: In an action under this title, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

^[7] The court explained, If Coca Cola were . . . to come in here and assert somebody [stole] their secret [formula] for Co[c]a Cola[,] I dont have to see the formula itself . . . [i]n order to determine whether or not its a trade secret.

^[8] Civil Code section 3426.4 provides in pertinent part: If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys fees . . . to the prevailing party.

^[9] Kachavos admitted a court could properly award punitive damages but contended there were triable issues of fact whether such damages were justified in this case.

^[10] This is consistent with the trial courts statement (and counsels agreement) that judgment could be entered at that time while still preserving Kachavoss right to appeal the substantive ruling.

^[11] We recognize that a trial court has inherent power to provide for the orderly conduct of its proceedings and that a court trial may be conducted with less formality than a jury trial. Nevertheless, trial judges should avoid making premature announcements of intended decisions to avoid even the appearance the court has prejudged a case. In this instance, however, the parties themselves do not appear overly concerned about the procedure the court employed. Kachavos raised numerous issues during her lengthy oral argument before us but made no reference to any premature entry of judgment in either her opening or rebuttal argument. When this court raised the issue, SMCs counsel suggested the courts tentative ruling was simply an expression of its thoughts at that point in time, noting the informality that is typical in a court tried case, and Kachavos did not disagree.