The opinion of the court was delivered by: MARILYN L. HUFF
The above-captioned matter came on regularly for hearing before the Honorable Judge Marilyn L. Huff on April 26, 1993. Thomas M. Small appeared for plaintiffs and Toby L. Plevin appeared for defendant. Considering all of the papers, pleadings, motions and declarations before the court, and after hearing the matter, the court finds that no material issue of fact exists and plaintiffs are entitled to judgment as a matter of law on the copyright (state and federal) and trade secret claims.
1. Standard for summary judgment
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The opposing party "cannot rest on the mere allegations or denials of his pleading, but [the] response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. However, the opposing party does not create a genuine issue of material fact by submitting her own affidavit which contradicts her prior deposition testimony. Harkins Amusement Enterprises, Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th Cir. 1988) (citing Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975), for the proposition that a party's inconsistent affidavit given after deposition testimony, in opposition to a summary judgment motion, does not create a genuine issue of fact).
a. Copyright claims (literary works and sound recordings).
There are two basic elements to be proven in a copyright infringement action: (1) ownership of a valid copyright, and (2) copying of the copyrighted work. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 206 (9th Cir. 1988); Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987). As this court previously found in its rulings on the temporary restraining order and the preliminary injunction issued in this case, there is no issue of fact regarding plaintiffs' ownership of the copyrights on the literary works and sound recordings, published and unpublished. See also Declaration of Marilyn Pisani ("Pisani Decl."), PP 2,5,7, Exhibits C, I, L, O, R, U, X and AA; Declaration of Allan Cartwright ("Cartwright Decl."), PP 2-3, 5, 7, Exhibit B, E, and LLL; Declaration of Warren McShane ("McShane Decl."), PP 2, 5, 7, 9, Exhibits D and E.
Nor is there a genuine issue of fact regarding defendant's copying of, or directing the copying of, the copyrighted works. The undisputed evidence shows that defendant copied or directed her students to copy plaintiffs' copyrighted materials as part of a "Dynamism" course which she offered for sale. See Declaration of Gerri Salinas ("Salinas Decl."), PP 4-5, 8-11; Pisani Decl., PP 5, 7; Cartwright Decl., PP 5, 7; McShane Decl., PP 7, 9-10. Specifically, defendant would either copy the materials herself, or would give them to her students to copy. See Salinas Decl., P 8; Deposition of Enid Vien ("Vien Depo."), Vol.I, p.44, lines 3-20, p.45, lines 15-21; p.80, lines 8-19; Vol.II, P.23, lines 2-12; p.96, lines 1-12; p.143, line 18 - p.144, line 8; Deposition of Mary Volk ("Volk Depo."), p.25, line 17 - p.26, line 11. Additionally, defendant admitted in her November 4, 1992 Declaration that she must use bootleg or copied materials as part of the courses she offers her students.
Defendant's declaration in opposition to this motion contends that she never copied, or directed the copying of, the sound recordings. However, this is contradicted by her prior declaration and deposition testimony and, therefore, does not create a genuine issue of material fact. Harkins Amusement Enterprises, Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th Cir. 1988).
b. Sound recordings made prior to February 15, 1972.
There is also no factual dispute that defendant copied, or directed the copying of, L. Ron Hubbard's tape recorded lectures which were fixed on tape prior to February 15, 1972 and, therefore, are protected under California Civil Code section 980(a)(2). See Goldstein v. California, 412 U.S. 546, 552, 37 L. Ed. 2d 163, 93 S. Ct. 2303 (1973) (recordings fixed and sold prior to February 15, 1972 are not protected under federal copyright law, but may be given state protection); Lone Ranger Television v. Program Radio Corp., 740 F.2d 718, 724 (9th Cir. 1984). The uncontroverted evidence shows that defendant violated section 980(a)(2) by making copies of the recordings, or by having such copies made, without authorization. See Salinas Decl., P 8(b); Cartwright Decl., P 7. Again, defendant's declaration in opposition to the instant motion does not create a factual dispute in light of her earlier declaration and deposition testimony, which admit to copying and using "bootleg" L. Ron Hubbard tapes as part of her Dynamism courses. See Harkens Amusement Enterprises, supra, 850 F.2d at 482.
Finally, no genuine issue of fact exists as to whether defendant misappropriated plaintiffs' trade secrets in the works known generally as the "Advanced Technology." California Civil Code section 3426.1 defines a "trade secret" as information which has independent economic value from not being generally known, the secrecy of which has been reasonably protected, or reasonably attempted to be protected. A trade secret is misappropriated when, among other things, it is disclosed or used by another without consent, and at the time of disclosure or use that person knew that the secret was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. Cal. Civ. Proc. Code § 3426.1(b). Similarly, under the common law, a trade secret is determined by the extent to which the secrecy of the information is guarded, and according to the value of the information to the possessor and its competitors. See Restatement (First) of Torts, § 757, comment 6; Chicago Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir. 1982); Sinclair v. Aquarius Electronics, 42 Cal.App.3d 216, 221, 116 Cal. Rptr. 654 (1974).
The court finds that as a matter of law, plaintiffs' "Advanced Technology" qualifies as a trade secret, and that no factual dispute exists regarding defendant's misappropriation, through copying or disclosure, of these works through the courses offered to her students. See Vien Depo., Vol.I, p.97, lines 5-10; p.98, lines 8-18; Salinas Decl., P 8; McShane Decl., PP 7, 10, Exhibit C.
There is no factual dispute about whether plaintiffs have used reasonable steps to keep the materials secret. The Advanced Technology is confidential and is available only to those who have attained the proper level of spiritual training. See McShane Decl., P 3. These works are kept under tight security, are disclosed only to those who have attained the requisite level of spiritual training, and cannot be accessed without first signing an agreement to maintain their secrecy and confidentiality. McShane Decl., P 4. Indeed, plaintiff knew of the confidential nature of the materials and signed a confidentiality agreement prior to their disclosure to ...