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No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

QUINN EMANUEL URQUHART & SULLIVAN, LLP

 Charles K. Verhoeven (Bar No. 170151)

 charlesverhoeven@quinnemanuel.com

 David A. Perlson (Bar No. 209502)

 davidperlson@quinnemanuel.com

 Melissa Baily (Bar No. 237649)

 melissabaily@quinnemanuel.com

 John Neukom (Bar No. 275887)

 johnneukom@quinnemanuel.com

 Jordan Jaffe (Bar No. 254886)

 jordanjaffe@quinnemanuel.com

50 California Street, 22nd Floor

San Francisco, California 94111-4788

Telephone: (415) 875-6600

Facsimile: (415) 875-6700

Attorneys for WAYMO LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION

WAYMO LLC,

Plaintiff,

v.

UBER TECHNOLOGIES, INC.;

OTTOMOTTO LLC; OTTO TRUCKING 

LLC,

Defendants.

CASE NO. 3:17-cv-00939-WHA

PLAINTIFF WAYMO LLC’S

OPPOSITION TO DEFENDANTS’ 

MOTION TO DISMISS WAYMO’S 

UNFAIR COMPETITION CLAIM

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 1 of 8
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-1- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

I. INTRODUCTION

Defendants move to dismiss Waymo’s Unfair Competition Law (“UCL”) claim on the 

ground that it is preempted by the California Uniform Trade Secrets Act (“CUTSA”). 

Defendants’ motion should be denied because Waymo has alleged the unlawful theft by 

Defendants of a broad array of internal Waymo information, reflected in 14,000 confidential 

documents that were stolen from Waymo. Some of the information in these stolen documents

may be entitled to protection under CUTSA (which would preempt a theory of UCL liability),

while some of the information might not be entitled to protection under the CUTSA (which would 

not preempt UCL liability). A plaintiff is permitted to allege liability under both the CUTSA and 

the UCL for the improper theft of internal information, and as the case proceeds may prove its

case under the CUTSA or the UCL, or both, so long as each particular piece of mis-used 

information is covered by only one theory.

To be clear, Waymo agrees that if all the confidential Waymo information that Defendants

misappropriated is entitled to trade secret status, then the CUTSA would preempt the entirety of 

Waymo’s UCL claim. However, if Defendants misappropriated certain confidential information 

that does not rise to the level of trade secrets, then Waymo would have a viable UCL claim for 

Defendants’ misappropriation of such information. Waymo has alleged that. See Dkt. 23

(“Complaint”) ¶¶ 4, 12, 144. And California law permits that. Courtesy Temp. Serv., Inc. v. 

Camacho, 272 Cal. Rptr. 352, 360 (Cal. Ct. App. 1990) (“[E]ven if Courtesy’s customer list would 

not qualify as a ‘trade secret’ under section 3426.1, the unfair and deceptive practices of

employees in stealing Courtesy’s customers should have been enjoined under Business & 

Professions Code section 17200 et seq.”); see also City Solutions, Inc. v. Clear Channel 

Commc’ns, Inc., 365 F.3d 835, 842-43 (9th Cir. 2004) (affirming jury verdict of unfair 

competition based on defendant’s misappropriation of confidential bidding strategies, even though 

the jury also found no trade secret misappropriation); Language Line Servs., Inc. v. Language 

Servs. Assocs., LLC, No. C 10-02605, 2011 WL 13153247, at *4 (N.D. Cal. Mar. 17, 2011) (“If 

the confidential information is not a trade secret, then preemption would not apply because the 

claim would seek a civil remedy not based on the misappropriation of a trade secret.”); TMX 

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 2 of 8
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-2- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

Funding, Inc. v. Impero Techs., Inc., No. C 10-00202, 2010 WL 2509979, at *4 (N.D. Cal. June 

17, 2010) (“Regardless of whether the information is a trade secret, Defendants may be liable for a 

breach of the duty of loyalty if they utilized Teledex’s proprietary information, for conversion if 

they wrongfully deprived TMX of possession of that information, for unfair competition if they 

misappropriated TMX’s proprietary information, for interfering with TMX’s prospective 

economic advantage, and for accessing computerized information without authorization.”

(emphasis added)).

Simply put, the CUTSA does not preempt a UCL claim for misappropriation of 

information that is not a trade secret. Indeed, CUTSA itself states as much. Cal. Civ. Code 

§ 3426.7(b) (stating that CUTSA “does not affect . . . (2) other civil remedies that are not based 

upon misappropriation of a trade secret”). Thus, unless and until a determination is made that all 

of the confidential information misappropriated by Defendants qualifies as trade secrets, the UCL 

claim remains as an alternative theory of liability that may be pled in the alternative. SocialApps, 

LLC v. Zynga, Inc., No. 4:11-CV-04910, 2012 WL 381216, at *4 (N.D. Cal. Feb. 6, 2012) (“[T]o 

the extent that the allegation of ‘concepts and/or game features’ overlaps with any matters asserted 

to be trade secret information, plaintiff may plead for relief in the alternative. While CUTSA 

might preempt any relief with respect to information that is a protectable trade secret, SA may still 

be entitled to recover on a breach of confidence theory for any non-trade secret information.”); 

accord Language Line, 2011 WL 13153247 at *4 & fn. 8 (“Here, the Court finds that Plaintiff has 

properly pleaded its tort claims in the alternative to its trade secret misappropriation claim. Courts 

in this district have adopted the ‘alternative pleading’ standard for CUTSA preemption.”).

Accordingly, Defendants’ Motion to Dismiss should be denied.

II. FACTUAL BACKGROUND

This case involves a massive and wide-ranging theft of Waymo’s confidential information. 

As alleged by the operative Complaint, Defendants’ now-employee Anthony Levandowski raided 

virtually the entirety of Waymo’s confidential design server, stealing 14,000 files and 9.7 

gigabytes of “highly confidential data.” Complaint ¶ 4. While Waymo pled that at least some of 

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 3 of 8
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-3- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

the misappropriated information comprised trade secrets, Waymo alternatively pled that at least 

some of the information was just “confidential” and/or “proprietary.” See, e.g., id. ¶ 12 (“Waymo 

LLC owns all of the patents, trade secrets, and confidential information infringed or 

misappropriated by Defendants.” (emphasis added)); id. ¶ 4 (“Waymo has uncovered evidence 

that Anthony Levandowski . . . downloaded more than 14,000 highly confidential and proprietary

files shortly before his resignation.” (emphasis added)). Indeed, given the breadth and scale of the 

theft, it is highly plausible to infer that some of the stolen information comprised trade secrets 

while other pieces of stolen information were “merely” confidential and proprietary. 

Waymo’s Complaint ends with claims for relief under CUTSA, the UCL, and other 

statutes. For the UCL claim, Waymo incorporates all of its prior allegations (id. ¶ 143) and then

states that “Defendants engaged in unlawful, unfair, and fraudulent business acts and practices. 

Such acts and practices include, but are not limited to, misappropriating Waymo’s confidential 

and proprietary information.” Id. ¶ 144 (emphasis added). Notably, Waymo’s Complaint does 

not purport to impose UCL liability on Defendants based on the theft of any information afforded 

“trade secret” status under the CUTSA.

The Court has not yet made any formal determination about which of the allegedlymisappropriated pieces of information is entitled to trade secret status. 

III. ARGUMENT

A. If Defendants Misappropriated Any Confidential Information That Does Not 

Qualify as a Trade Secret, Such Misappropriation Creates a Viable UCL 

Claim

If Defendants misappropriated any confidential information that does not rise to the level 

of a trade secret, then the unfair competition laws (including the UCL) would provide a viable 

theory of relief for that misappropriation. Courtesy, 272 Cal. Rptr. at 360; City Solutions, 365 

F.3d at 842-43; Language Line, 2011 WL 13153247, at *4; TMX Funding, 2010 WL 2509979, at 

*4; SocialApps, 2012 WL 381216, at *4. As noted above, CUTSA would not preempt such a 

theory, as CUTSA states that it does not displace “other civil remedies that are not based upon 

misappropriation of a trade secret.” Cal. Civ. Code § 3426.7(b)(2).

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 4 of 8
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-4- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

To be sure, Waymo must prove that it has a property right in any non-trade secret 

information that was misappropriated in order to make out a UCL claim for such 

misappropriation. As one influential California case explained, “‘information’ cannot be ‘stolen’

unless it constitutes property. And information is not property unless some law makes it so. If the 

plaintiff identifies no property right outside of trade secrets law, then he has no remedy outside 

that law, and there is nothing unsound or unjust about holding other theories superseded.” Silvaco 

Data Sys. v. Intel Corp., 109 Cal. Rptr. 3d 27, 53 (Cal. Ct. App. 2010) (emphasis in original),

disapproved of on other grounds by Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011). 

This Court applied Silvaco’s logic just last year, noting that “[e]very district court in our circuit to 

consider this aspect of Silvaco has held that CUTSA supersedes claims based on the 

misappropriation of non-trade secret information, except where there is some other provision of 

positive law granting a property right in that information.” Total Recall Techs. v. Luckey, No. 

15-02281, 2016 WL 199796, at *6-8 (N.D. Cal. Jan. 16, 2016) (Alsup, J.) (emphasis added).1 

Thus, the operative question is whether Waymo’s Complaint raises a plausible inference 

that it has a property right in any potential non-trade secret information from the 14,000 stolen 

files, independent of the trade secret laws. If the answer to that question is “yes,” then Waymo has 

a viable UCL claim for Defendants’ misappropriation of that information. Martone v. Burgess, 

No. C 08-2379, 2008 WL 3916022, at *3 (N.D. Cal. Aug. 25, 2008) (“misappropriation of 

property that is not a trade secret” creates a viable UCL claim). 

The answer to that question clearly is “yes.” Under California law, “property is a broad 

concept that includes ‘every intangible benefit and prerogative susceptible of possession or 

disposition.’ We apply a three-part test to determine whether a property right exists: ‘First, there 

must be an interest capable of precise definition; second, it must be capable of exclusive 

 

1

 To the extent the Court’s Total Recall decision meant for the term “positive law” to be limited 

to statutory law, Waymo respectfully asks that the Court reconsider that one aspect of its decision. 

Anything that is “property” can be misappropriated, and property can be defined by either 

statutory or common law. See Kremen v. Cohen, 337 F.3d 1024, 1033 (9th Cir. 2003) (discussed 

infra). Thus, if Waymo has a statutory or common-law property right over any non-trade secret 

information, then misappropriation of that information should give rise to a viable UCL claim. 

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 5 of 8
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-5- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

possession or control; and third, the putative owner must have established a legitimate claim to 

exclusivity.’” Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) (affirming property right in 

a domain name) (quoting G.S. Rasmussen & Assocs., Inc. v. Kalita Flying Serv., Inc., 958 F.2d 

896, 903 (9th Cir. 1992)); see also City Solutions, 365 F.3d at 842-43 (affirming property right 

over confidential bidding strategy and affirming unfair competition verdict for misappropriation of 

that bidding strategy). Waymo’s confidential information qualifies as “property” under the threepart test enunciated by Kremen, whether or not this information rises to the level of a trade secret. 

First, the confidential information that Defendants misappropriated is “capable of precise 

definition.” The very fact that this information was set forth in 14,000 discrete files—the files that 

Mr. Levandowski stole—shows that this information is perfectly amenable to written description 

and definition.

Second, this confidential information is “capable of exclusive possession or control.” As 

explained in Waymo’s Complaint, its confidential information is housed on proprietary Waymo 

servers that restrict access to Waymo and its duly-authorized personnel. Complaint ¶¶ 43, 52-53, 

71.

Third, Waymo has a “legitimate claim to exclusivity” for this confidential information. 

There is nothing illegitimate about Waymo retaining exclusivity over confidential business 

information on its secure servers. Indeed, Defendants could hardly argue otherwise.

Because Waymo has a valid property right in its confidential information, Waymo would 

have a valid UCL claim for Defendants’ misappropriation of this information—again, as long as at 

least one piece of this information does not qualify as a trade secret. And Waymo’s Complaint 

raises a highly-plausible inference that Defendants misappropriated the 14,000 files that Mr. 

Levandowski stole—not just the confidential information reflected in those files, but the files 

themselves that contain that information. 

B. Defendants’ Cited Case Law Is Distinguishable

All of the case law that Defendants cite for dismissal of the UCL claim is either 

distinguishable or otherwise unhelpful to Defendants’ position. For example, Defendants cite the 

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-6- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

Silvaco and Total Recall cases discussed above. Dkt. 312 (“Mot.”) at 2:26-27, 4:17-18. But, as 

explained above, both cases contemplate that a UCL claim may arise for misappropriation of nontrade secret information for which the plaintiff could show a property right. See Total Recall, 

2016 WL 199796, at *10 (“Total Recall may seek leave to amend to assert a property right in the 

allegedly misappropriated information that could give rise to a UCL claim.”); Silvaco, 109 Cal. 

Rptr. 3d at 53 (“‘[I]nformation’ cannot be ‘stolen’ unless it constitutes property.” (emphasis in 

original)). Such is the case here: Waymo has a valid property right in its confidential information, 

whether or not this information qualifies as a trade secret.2

Defendants also cite several cases that dismissed unfair competition claims as preempted

by CUTSA because they relied on the “same nucleus of operative facts” as a CUTSA claim. Mot. 

at 4 (citing cases). But, from a review of those cases, it does not appear that any of the plaintiffs in 

those cases even tried to assert a property right in any non-trade secret information. Again, a

UCL claim for misappropriated information cannot lie unless the plaintiff plausibly asserts a 

property right in the misappropriated information. It does not appear that such an assertion was 

ever made in the cases that Defendants cite. But Waymo has made that assertion in this case—an 

assertion that is highly plausible at the 12(b)(6) stage. See Section III(A), supra. And that is a 

dispositive difference.

IV. CONCLUSION

For the foregoing reasons, Waymo respectfully requests that Defendants’ Motion to 

Dismiss be denied.

 

2

 Total Recall stated that, to avoid CUTSA preemption, non-trade secret information must be 

shown to be property “on grounds that are qualitatively different from the grounds upon which 

trade secrets are considered property.” Total Recall, 2016 WL 199796 at *6 (quoting SunPower 

Corp. v. SolarCity Corp., No. 12-CV-00694, 2012 WL 6160472, at *9 (N.D. Cal. Dec. 11, 2012)). 

Waymo has satisfied this test, because the Kremens test by which Waymo asserts property rights 

over its confidential information is “qualitatively different” from the test for deeming information 

to be a trade secret under Cal. Civ. Code § 3426.1(d). 

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-7- No. 3:17-cv-00939-WHA

WAYMO’S OPPOSITION TO MOTION TO DISMISS UNFAIR COMPETITION CLAIM

DATED: May 12, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP

By /s/ Charles K. Verhoeven

Charles K. Verhoeven

Attorneys for WAYMO LLC

Case 3:17-cv-00939-WHA Document 431 Filed 05/12/17 Page 8 of 8