Apex Systems, LLC v. Sperber

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] APEX SYSTEMS, LLC, ) Case No.: 3:23-cv-02011-BEN-SBC [11] ) 12 Plaintiff, ) ORDER DENYING APEX SYSTEMS, v. ) LLC’S EX PARTE MOTION [13] ) 14 KIMBERLY J. SPERBER, an individual, ) [ECF No. 16] ) [15] Defendant. ) 16 ) [17] 18 I. INTRODUCTION 19 Plaintiff Apex Systems, LLC (“Apex”) brings its Complaint for Injunctive Relief 20 against Defendant Kimberly J. Sperber (“Sperber”) alleging breach of contract, as well as 21 state and federal statutory violations. See generally ECF No. 1. Before the Court is Apex’s 22 Ex Parte Motion seeking to: (1) advance the hearing for Apex’s Motion for Preliminary 23 Injunction, (2) commence immediate discovery from any source; (3) set a scheduling 24 conference; and (4) set an early neutral evaluation. ECF No. 1 (“Compl.”). 25 II. BACKGROUND 26 Apex brings this action seeking injunctive relief against Sperber, including specific 27 performance of an alleged agreement between the parties. [28] 1 A. Statement of Facts1 2 Apex alleges that its former employee of sixteen years, Sperber, was promoted to 3 Associate Industry Director in February 2023. Compl. at 5,2 ¶ 13. Sperber was given 4 limited and controlled access to Apex’s electronically stored information, including 5 confidential information. Id. at 5, ¶¶ 14–15. Apex alleges that “[t]hroughout her 6 employment, Sperber repeatedly promised and assured Apex that she would safeguard 7 Apex’s information assets.” Id. at 6, ¶ 18. “Most recently, on February 21, 2023, Sperber 8 entered into a Confidentiality, Nonsolicitation and Nondisclosure Agreement (the 9 “Agreement”). Id. “The agreements also function to protect the proprietary and 10 confidential data belonging to Apex’s clients . . . .” Id. In addition to promising not to 11 directly or indirectly divulge confidential information, Sperber also promised not to 12 remove or retain the confidential information, and to return all company property, records 13 and information upon termination of her employment. Id. at 6–7, ¶ 18. 14 In July 2023, a pricing issue arose with a key Apex client. Id. at 7, ¶ 19. Apex 15 responded with an audit to investigate the complaint. Id. “On July 20, 2023, following the 16 outcome of the audit, Apex provided Sperber with a Critical Review as part of a coaching 17 improvement plan because Apex had concluded that Sperber’s lack of oversight and 18 leadership contributed to serious harm to Apex’s business . . . .” Id. This included the loss 19 of $300,000, the handover of 19 contractors to a competitor, the lost trust of a longstanding, 20 key Apex customer, and the decision to discontinue business with this key customer.” Id. 21 at 7–8, ¶ 19. Apex provided Sperber an opportunity “to continue her employment and learn 22 from these serious mistakes” but instead, “Sperber secretly began discussions to join a 23 direct competitor.” Id. at 8, ¶ 19. Sperber “started misusing her trusted access to Apex 24 computer systems in order to secretly send confidential Apex records to her personal Gmail [25] 26 1 The Court omits certain allegations of fact as they are unnecessary to resolve the 27 instant Ex Parte Motion. 2 Unless otherwise indicated, all page number references are to the ECF-generated [28] 1 account.” Id. “Apex was unaware of Sperber’s secret activities during the two months 2 after her Critical Review, but was losing confidence that Sperber was able or willing to 3 move forward from her role in the serious mishandling of the key customer account which 4 led to her Critical Review.” Id. at 8, ¶ 20. “As a result, Apex terminated Sperber’s 5 employment on October 4, 2023.” Id. 6 Within hours of her termination, Apex alleges it discovered that Sperber broke her 7 promises and breached her duties to Apex regarding the confidential information. Id. at 8, 8 ¶ 21. “For example, beginning in about July 2023 and leading up to and including her last 9 day of employment on October 4, 2023, Sperber secretly removed Apex’s Confidential 10 Information in violation of Apex policies and the agreements she signed as a trusted 11 employee of Apex.” Id. “During this same time period, Apex is informed and believes 12 that Sperber was in secret discussions to join HNM Systems, which provides IT staffing 13 and consulting services in direct competition with Apex.” Id. “Throughout that time, she 14 was misusing her controlled access to Apex’s computer systems to secretly copy and send 15 to her personal Gmail account the confidential records of Apex and its customers.” Id. 16 “On October 19, 2023, Sperber announced on LinkedIn that she had started a new position 17 as Vice President of Revenue Operations at HNM Systems—the same direct competitor 18 she had been courting since receiving her Critical Review in July 2023.” Id. at 11, ¶ 33. 19 “At this time Apex does not know whether and to what extent Sperber has disclosed or 20 used Apex information in connection with her work for HNM Systems, but Apex’s 21 investigation of these and related issues is continuing.” Id. at 11–12, ¶ 34. 22 “At no point either during or after her employment termination was Sperber 23 authorized by Apex to access, copy or take for her own personal use any property, records 24 or information belonging to Apex.” Id. at 9, ¶ 26. “Apex has made repeated requests that 25 Sperber return all of Apex’s Confidential Information and other data, records and materials. 26 Sperber refused Apex’s requests.” Id. at 10, ¶ 27. “Apex continues to demand that Sperber 27 cooperate in the verified return of all Apex property and records, and that Sperber 28 accurately and completely reveal to Apex the extent of her removal, retention, use and 1 disclosure of Apex information, but Sperber refuses to do so.” Id. at 11, ¶ 34. 2 The Complaint contains additional factual allegations and Sperber, in turn, alleges 3 eight counterclaims against Apex. ECF No. 5. However, many of these allegations are 4 omitted because they are not necessary to resolve Apex’s Ex Parte Motion. 5 B. Procedural History 6 On October 30, 2023, Apex filed its Complaint against Sperber alleging: (1) breach 7 of contract; (2) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 ; and (3) 8 Unfair Business Practices, Cal. Bus. & Prof. Code § 17200 . See generally Compl. On 9 November 22, 2023, Sperber answered the Complaint and alleged counterclaims against 10 Apex for: (1) sexual harassment, in violation of Gov’t Code § 12940(j); (2) gender and 11 sexual orientation discrimination, in violation of Gov’t Code § 12940(a); (3) FEHA 12 Retaliation, in violation of Gov’t Code § 12940(h); (4) failure to prevent FEHA 13 harassment, discrimination, and retaliation, in violation of Gov’t Code § 12940(k); (5) 14 injunctive relief/declaratory judgment; (6) whistleblower retaliation, in violation of Labor 15 Code § 1102.5; (7) defamation per se, in violation of civil code §§ 45, 46; and (8) wrongful 16 termination in violation of public policy. ECF No. 5. The parties subsequently filed a Joint 17 Motion seeking an extension of time for Apex to respond to Sperber’s counterclaims, 18 which this Court granted. ECF Nos. 6, 8. On December 27, 2023, Apex answered 19 Sperber’s counterclaims. ECF No. 7. 20 On December 29, 2023, Apex filed a Motion for Preliminary Injunction, seeking a 21 Court Order: (1) prohibiting Sperber from possessing, retaining, using, disclosing, and 22 transmitting any Apex confidential information; (2) requiring Sperber to account for and 23 immediately return to Apex all original documents, records, and materials containing or 24 reflecting the Apex confidential information and all copies thereof; (3) requiring Sperber 25 to submit her computers, smartphones, electronic devices, and the credentials to her 26 personal email accounts to a third-party forensic expert of Apex’s choosing at Sperber’s 27 expense to ensure that the Apex confidential information does not exist on those computers, 28 smartphones, devices, or personal email accounts; and (4) prohibiting Sperber from 1 destroying, altering, transmitting, or moving any documents, in whatever form, that may 2 contain or reflect any of the Apex confidential information. ECF No. 9-1. On January 12, 3 2024, Sperber filed an Opposition to Apex’s Motion for Preliminary Injunction. ECF No. 4 10-1. On January 22, 2024, Apex filed a Reply in Support of its Motion for Preliminary 5 Injunction. ECF No. 12. 6 On January 25, 2024, the Court continued the hearing on Apex’s Motion for 7 Preliminary Injunction to March 25, 2024. ECF No. 13. On the same day, Apex filed a 8 Motion for Leave to File a First Amended Complaint. ECF No. 14. The Court set a hearing 9 date for the Motion to Amend the Complaint on February 26, 2024. On February 9, 2024, 10 Sperber filed an Opposition to Apex’s Motion for Leave to Amend its Complaint. ECF 11 No. 17. 12 On February 8, 2024, Apex filed an Ex Parte Motion for an Order: (1) advancing 13 the hearing on the Motion for Preliminary Injunction; (2) permitting the parties to 14 immediately seek discovery from any source; (3) setting a scheduling conference; and (4) 15 setting an early neutral evaluation conference. ECF No. 16. On February 9, 2024, Sperber 16 filed an Opposition to Apex’s Ex Parte Motion. ECF No. 18. 17 III. LEGAL STANDARD 18 “Ex parte applications are a form of emergency relief that will only be granted upon 19 an adequate showing of good cause or irreparable injury to the party seeking relief.” AF 20 Holdings LLC v. Doe, No. 12-cv-01525-LAB-RBB, 2012 WL 5304998 , at *3 (S.D. Cal. 21 Oct. 24, 2012) (quoting Clark v. Time Warner Cable, No. CV 07–1797–VBF-RCx, 2007 22 U.S. Dist. LEXIS 100716 , at *2, 2007 WL 1334965 (C.D. Cal. May 3, 2007)). “To be 23 proper, an ex parte application must demonstrate good cause to allow the moving party ‘to 24 go to the head of the line in front of all other litigants and receive special treatment.’” 25 Shawarma Stackz LLC v. Jwad, No. 21-cv-01263-BAS-BGS, 2022 WL 529255 , at *1 (S.D. 26 Cal. Jan. 14, 2022) (quoting Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 27 488, 492 (C.D. Cal. 1995)). “[I]t must be established that the moving party is without fault 28 in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of 1 excusable neglect.” Mission Power Eng’g Co., 883 F. Supp. at 492 . “The opportunities 2 for legitimate ex parte applications are extremely limited.” Greer v. Cnty. of San Diego, 3 No. 19-cv-378-JO-DEB, 2022 WL 104724 , at *1 (S.D. Cal. Jan. 11, 2022) (quoting Horne 4 v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013)) (internal 5 quotation marks omitted). 6 IV. DISCUSSION 7 Apex’s Ex Parte Motion seeks to advance the hearing date on its Motion for 8 Preliminary Injunction and contains various requests related to discovery. 9 A. Hearing Date for Apex’s Motion for Preliminary Injunction 10 Apex argues that it will be irreparably harmed if it must wait until March 25, 2024 11 for its Motion for Preliminary Injunction to be heard. ECF No. 16-1 at 3–4. Apex’s Ex 12 Parte Motion reiterates the arguments for irreparable harm made its preliminary injunction 13 briefing. Id. at 4–5. Essentially, Apex argues that Sperber stole thousands of confidential 14 files from Apex during her final months of employment, before beginning to work for an 15 Apex competitor. Id. at 3. Given the nature of the files and Sperber’s refusal to return 16 them, Apex argues it is at risk of its confidential files—detailing important business and 17 client information—being disclosed to its competitor. Id. at 4–5. Sperber argues that Apex 18 “offers no new argument or evidence to alter, change, amend or supplement any argument 19 or evidence in its Motion for Preliminary Injunction.” ECF No. 18. The Court agrees. 20 Apex’s Ex Parte Motion simply repeats the arguments made in the preliminary 21 injunction Motion—i.e., that Apex has and will continue to suffer irreparable harm. Apex 22 argues that because of this irreparable harm, the Motion must be heard as soon as possible, 23 and at the latest, February 26, 2024. However, Apex never filed a motion for a temporary 24 restraining order to indicate a sense of urgency. Apex also waited two weeks after the 25 Court continued the initial hearing date to file the instant Ex Parte Motion seeking to 26 advance the hearing. 27 In addition, Apex’s Motion for Preliminary Injunction attaches various email 28 communications between Apex and Sperber. On October 5, 2023, Sperber responded to 1 Apex’s Cease and Disease Letter, informing Apex that she did not retain documents for 2 any improper purpose or disclose any information to unauthorized persons. Sperber further 3 stated: “It is, however, my understanding that I have a legal right under applicable 4 California and federal law to retain for now certain documents related to the issues above.” 5 Ex. 3 to Declaration of Mark J. Payne, ECF No. 9-2 (“Payne Decl.”), at 31–32. Apex 6 responded on October 11, 2023, stating that Sperber did not have a right to retain any 7 property or records belonging to Apex. Id. at 31. 8 Additional communications occurred throughout October and November. On 9 October 17, 2023, Apex’s counsel sent a letter to Sperber again seeking cooperation and 10 the return/nondisclosure of the records at issue Ex. 4 to Payne Decl. at 34–35. On October 11 18, 2023, Sperber’s prior counsel responded and asked that all further communications be 12 sent to her. Sperber’s counsel also advised that Sperber was not in possession of any of 13 the materials Apex demanded and has no intention of using the materials for any 14 competitive or otherwise prohibited purpose. Ex. 5 to Payne Decl. at 38–39. Sperber’s 15 counsel further informed Apex of Sperber’s position that she was terminated as a result of 16 her voicing legitimate concerns regarding unlawful financial discrepancies. Id. at 39. 17 Apex’s counsel reached out again on October 30, 2023, regarding a number of 18 issues, including the return of Apex’s records (and potential arbitration). Ex. 7 to Payne 19 Decl. at 51. Sperber’s counsel responded on November 1, 2023, stating she was swamped 20 and to give her a few days to go over everything. Ex. 8 to Payne Decl. at 53. Apex’s 21 counsel sent another email on November 7, 2023 asking to have a Rule 26(f) conference 22 and about a stipulation to arbitrate the dispute. Ex. 10 to Payne Decl. at 59. On November 23 14, 2023, Apex’s counsel reached out again noting that they had repeatedly tried to contact 24 Sperber and her attorneys. Ex. 11 to Payne Decl. at 61. The email stated that Apex would 25 be seeking ex parte relief on various issues, including an order requiring Sperber to identify 26 and produce for forensic analysis all computers, personal data devices, phones, and 27 electronic storage devices owned by or assigned to Sperber from May 1, 2023 to present 28 on which she conducted business with Apex or stored/transferred Apex’s information. Id. 1 However, no ex parte motion was filed. 2 On November 15, 2023, Sperber’s prior counsel responded by informing Apex that 3 her firm no longer represented Sperber and was not authorized to accept notice on her 4 behalf. Ex. 12 to Payne Decl. at 63. On November 16, 2023, Apex’s counsel sent a letter 5 to Sperber’s prior counsel demanding the immediate return of all records and information 6 belonging to Apex. Ex. 13 to Payne Decl. at 66–67. On November 22, 2023, Sperber’s 7 new legal counsel sent a copy of Sperber’s answer, affirmative defenses, and counterclaims 8 to Apex’s counsel. Ex. 14 to Payne Decl. at 69. 9 Per these email communications, Apex knew Sperber’s position—i.e., her belief that 10 if she did have certain Apex’s records, she could retain them—as early as October 5, 2023. 11 Counsel for Sperber subsequently informed Apex that Sperber felt she was terminated for 12 voicing concerns related to financial discrepancies. Then, after Apex made repeated 13 attempts to contact Sperber’s counsel, no substantive response was provided. On 14 November 22, 2023, Apex was given Sperber’s answer, defenses, and counterclaims. At 15 this point, Sperber, on her own and through her counsel, had made clear that she was not 16 going to agree to Apex’s demands respecting the records at issue. If Sperber’s alleged 17 retention of documents is so urgent as to warrant the instant Ex Parte Motion, it is unclear 18 why Apex waited until December 29, 2023 to file its Motion for Preliminary Injunction. It 19 is also unclear why Apex did not file a motion for a temporary restraining order to 20 demonstrate the urgent nature of the situation. And even after the original January 29, 21 2024 hearing date was continued, Apex waited another two weeks to seek the instant Ex 22 Parte relief. 23 As a whole, Apex’s urgency argument falls flat. Apex is essentially demanding that 24 the Court hold their motion hearing on or before a particular date, without justifying its 25 own delays thus far. Apex’s actions throughout this litigation have not established the 26 urgency of the matter, and the Ex Parte Motion provides no analysis as to the reason for 27 the delays or whether such delays constitute excusable neglect. As such, Apex has not 28 relieved itself of fault in creating the urgency it now claims. Based on Apex’s multiple 1 || delays—and because the Ex Parte Motion simply reiterates arguments made in the Motion 2 Preliminary Injunction—the Court DENIES Apex’s Ex Parte Motion. The hearing 3 || date for Apex’s Motion for Preliminary Injunction remains set for March 25, 2024. 4 B. Discovery Related Requests 5 Apex’s Ex Parte Motion also contains several discovery related requests, including 6 || that the Court: (1) commence immediate discovery from any source; (2) set a scheduling 7 || conference; and (3) set an early neutral evaluation. See ECF No. 16-1 at 5—6. Since the 8 || filing of Apex’s Ex Parte Motion, Magistrate Judge Steve B. Chu has set an Early Neutral 9 || Evaluation Conference and a Case Management Conference for March 6, 2024, requiring 10 || the parties to meet and confer and make initial disclosures pursuant to Federal Rule of Civil 11 || Procedure 26. See ECF No. 21. As such, Apex’s requests to set the above conferences 12 ||are DENIED as moot. Any outstanding discovery issues can be addressed before Judge 13 }}Chu once discovery has commenced. Accordingly, Apex’s request to allow the 14 || parties to commence immediate discovery from any source is DENIED as premature. IS|}V. CONCLUSION 16 For the above reasons, the Court DENIES Apex’s Ex Parte Motion in its entirety. 17 IT IS SO ORDERED. . 18}| DATED: February 16, 2024 19 ROGER T. BENITE 20 United States District Judge [28] -9-