Blatant Lack of Standing Dooms Plaintiff’s Effort at Reversal.
Civil Code section 3426.4, a fee-shifting statute under the Uniform Trade Secrets Act, allows a court to award reasonable attorney’s fees and costs to the prevailing party if a trade secrets misappropriation claim is made in “bad faith.” Well, the Legislature did not define “bad faith,” but the appellate courts have determined that there are two components that need to be satisfied in this context, namely, (1) objective speciousness of plaintiff’s claim, and (2) plaintiff’s subjective bad faith in bringing or maintaining the claim. (FLIR Systems, Inc. v. Parrish, 174 Cal.App.4th 1270, 1275-1276 (2009).) Plaintiff hit with an adverse fee award of $126,550.13 could not convince the appellate court that the award was erroneous in the next trade secrets misappropriation case we discuss.
That case is O’Reilly v. Musk, Case No. H035511 (6th Dist. Mar. 23, 2011) (unpublished).
The reason for affirmance? Plaintiff had a critical missing element from successfully prosecuting his trade secret claim--he did not own the trade secret such that he lacked standing to pursue it. That certainly showed objective speciousness, but what about the subjective element? No problem here, because both the objective speciousness and continued pursuit of the claim can combine to satisfy the subjective element. In this one, plaintiff vehemently pursued discovery and opposed summary judgment even though he was on notice of the standing infirmity. Once he lost, no real contest on why the fee award should not be affirmed--and it was, by the Sixth District.
Blog Bonus (maybe). Woody Allen on Objectivity and Subjectivity (Love and Death, 1975):
Boris: Murder's immoral.
Sonja: Immorality is subjective.
Boris: Yes, but subjectivity is objective.
Sonja: Not in a rational scheme of perception.
Boris: Perception is irrational. It implies immanence.
Sonja: But judgment of any system or a priori relation of phenomena exists in any rational or metaphysical or at least epistemological contradiction to an abstracted empirical concept such as being or to be or to occur in the thing itself or of the thing itself.
Boris: Yeah, I've said that many times.
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