Filed 4/9/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

AMGEN INC.,

Plaintiff and Respondent,

v.

HEALTH CARE SERVICES,

Defendant and Appellant.

 B296563

 (Los Angeles County

 Super. Ct. No. 18STCP03147)

APPEAL from an order of the Superior Court of 

Los Angeles, Mitchell L. Beckloff, Judge. Reversed. 

Xavier Becerra, Attorney General, Thomas S. Patterson, 

Assistant Attorney General, Paul Stein and Sharon L. O’Grady, 

Deputy Attorneys General, for Defendant and Appellant.

Hueston Hennigan, Moez M. Kaba and Lauren McGrory 

Johnson for Plaintiff and Respondent.
2

U.S. Chamber Litigation Center, Janet Galeria; Gibson, 

Dunn & Crutcher, Blaine H. Evanson and Shaun A. Mathur for 

Chamber of Commerce of the United States of America and 

National Association of Manufacturers as Amici Curiae on behalf 

of Plaintiff and Respondent.

Downey Brand, Annie S. Amaral; Arnold & Porter Kaye 

Scholer, Robert N. Weiner, Jeffrey L. Handwerker, and 

R. Stanton Jones for Pharmaceutical Research and 

Manufacturers of America as Amicus Curiae on behalf of Plaintiff 

and Respondent.

Shook, Hardy & Bacon, Amir M. Nassihi, Joan R. 

Camagong; GlaxoSmithKline and Marc Leonard Moore for GSK 

as Amicus Curiae on behalf of Plaintiff and Respondent.

Shook, Hardy & Bacon, Amir M. Nassihi, Joan R. 

Camagong for ViiV Healthcare as Amicus Curiae on behalf of 

Plaintiff and Respondent.

____________________________

Health and Safety Code section 127677, enacted as part of 

Senate Bill No. 17 (Stats. 2017, ch. 603, § 4), requires 

pharmaceutical manufacturers to provide 60-days’ notice to 

public and private registered purchasers, including state entities 

and health insurers, before increasing the wholesale acquisition 

cost of a drug (we will refer to the notice as a “price increase 

notice”). That statutory section further mandates that registered 

purchasers who are pharmacy benefit managers give notice to 

certain of their customers irrespective of whether those 

customers are registered purchasers. Senate Bill No. 17 does not 

impose any confidentiality obligations on the recipients of the 

price increase notices or restrict their use of the information

provided in the notices.
3

Plaintiff and respondent Amgen Inc. (Amgen) submitted a 

price increase notice by e-mail to defendant and appellant 

California Correctional Health Care Services (CCHCS) and the 

other approximately 170 registered purchasers. When Reuters 

News made a request under the California Public Records Act 

(CPRA) (Gov. Code, § 6250 et seq.) seeking the price increase 

notices CCHCS had received, Amgen filed a petition for a writ of 

mandamus blocking disclosure, commonly called a “reverseCPRA” action. Amgen invoked the trade secret privilege under 

Evidence Code section 1060, incorporated into the CPRA through 

Government Code section 6254, subdivision (k).

Amgen also moved for a preliminary injunction, which the 

trial court granted. CCHCS appeals from that order.

While this appeal was pending, the trial court sustained 

CCHCS’s demurrer to the mandamus cause of action with leave 

to amend. Amgen chose to dismiss its action instead. 

On appeal, CCHCS argues the trial court abused its 

discretion when it found, among other things, that Amgen had 

made a sufficient showing that its price increase notice met the 

definition of a trade secret despite its disclosure to more than 

170 registered purchasers and an unknown number of customers 

of pharmacy benefit managers. CCHCS further contends the 

trial court erred in finding that the balance of hardships favored 

Amgen. Amgen argues the appeal is moot following its dismissal 

of the underlying mandamus action, and that the trial court 

correctly ruled that limited disclosure of the price increase notice 

to noncompetitors did not deprive the information included in the 

price increase notice of its trade secret status.

We exercise our discretion to decide this otherwise moot 

appeal. The issues this appeal raises are capable of repetition 
4

because there will be future price increase notices. In addition, 

the issues are likely to evade review because a pharmaceutical 

manufacturer has little reason to continue to prosecute a 

mandamus action after obtaining a preliminary injunction for the 

60-day period before a price increase becomes public.

On the merits, we agree with CCHCS. Amgen has failed to 

demonstrate that once it disclosed its price increase information 

pursuant to Senate Bill No. 17, that information retained

whatever status it may previously have had as a trade secret. 

First, Amgen has failed to show that its disclosure was limited. 

Senate Bill No. 17 and Health and Safety Code section 127677 

place no limitation on the registered purchasers’ further 

dissemination of Amgen’s price increases during the 60-day 

period, including to Amgen’s competitors. Amgen provides no 

evidence that the registered purchasers have, or would, maintain 

the confidentiality of the price increase notice. 

Second, Amgen has failed to explain why, even if the price 

increase information were not disseminated to competitors, the 

registered purchasers, who sit opposite Amgen at the bargaining 

table, are not themselves capable of taking economic advantage of 

that information, thus inflicting the very harm Amgen claims a 

preliminary injunction would prevent. Indeed, as detailed below, 

the purpose of Health and Safety Code section 127677 was to 

allow the registered purchasers actively to prepare for upcoming 

price increases by, inter alia, finding cheaper alternatives to the 

drugs subject to the notices.

Given Amgen’s failure to show its price increase 

information was still a trade secret after disclosure to the 

registered purchasers, we further conclude that the trial court 
5

abused its discretion in finding that the balance of harms favored 

Amgen. 

Accordingly, we reverse the trial court’s order granting the 

preliminary injunction. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Health and Safety Code section 127677

The Legislature passed Senate Bill No. 17 in 2017 to 

increase transparency into pharmaceutical pricing. The bill’s 

author stated, “Expensive drugs and steady price increases are 

becoming commonplace with little transparency for astounding 

prices,” and explained that Senate Bill No. 17 would “shin[e] a 

light on drugs that are having the greatest impact on our health 

care dollar.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 

Unfinished Business of Sen. Bill No. 17 (2017–2018 Reg. Sess.) as 

amended Sept. 5, 2017, p. 8.)

Among other things, Senate Bill No. 17 requires 

pharmaceutical manufacturers to provide advance notice of price 

increases to statutorily defined purchasers, including state 

purchasers and health insurers. (Health & Saf. Code, §§ 127675, 

127677; Stats. 2017, ch. 603, § 4.) Supporters of the bill 

contended that providing them advance notice of price increases 

would allow them to “make changes to formularies; find 

alternatives to costly drugs; hold third-party purchasers 

accountable for prices and rebates; negotiate larger rebates and 

discounts; . . . prevent unnecessarily high payment for drugs, 

such as those with short-term price hikes where an alternative 

formulation can achieve the same result; and budget for price 

increases.” (Assem. Com. on Appropriations, Analysis of Sen. Bill 

No. 17 (2017–2018 Reg. Sess.) as amended July 20, 2017, p. 4
6

[statement of San Francisco Culinary, Bartenders, and Service 

Employees Welfare Fund]; see also Sen. Health Com., Analysis of 

Sen. Bill No. 17 (2017–2018 Reg. Sess.) Mar. 14, 2017, p. 8 [bill 

cosponsor Health Access California stated that the advance 

notice provisions of bill would give purchasers “time to adjust 

formularies, to negotiate price concessions, and to seek other 

alternatives, including obtaining alternative formulations of 

drugs for which there are therapeutic equivalents”].)

Health and Safety Code section 127677 sets forth the 

advance notice provision of Senate Bill No. 17. It requires a 

prescription drug manufacturer to provide a minimum of 60 days’ 

notice to specified recipients of an “increase in the wholesale 

acquisition cost of a prescription drug,” subject to certain 

limitations not at issue in this appeal.1 (Health & Saf. Code, 

§ 127677, subds. (a), (b).) The notice “shall include” the date and 

amount of the increase, the current wholesale acquisition cost of 

the drug, “a statement regarding whether a change or 

improvement in the drug necessitates the price increase,” and, if 

applicable, a description of that change or improvement. (Id., 

subd. (c).) 

The manufacturer must provide the notice to “each 

purchaser described in [Health and Safety Code] Section 127675” 

who “registers with the [Office of Statewide Health Planning and 

Development] for the purpose of this notification.” (Health & Saf. 

1 Notice is required only if the current wholesale 

acquisition cost of the drug is more than $40 for a course of 

therapy, and if the proposed increase “is more than 16 percent, 

including the proposed increase and the cumulative increases 

that occurred within the previous two calendar years prior to the 

current year.” (Health & Saf. Code, § 127677, subd. (a).)
7

Code, § 127677, subds. (a), (d).) The entities listed in Health and 

Safety Code section 127675 are considered “purchasers” for 

purposes of Health and Safety Code section 127677 because they 

either purchase drugs directly or because they provide 

reimbursement for prescription drug purchases by others. (See 

Health & Saf. Code, § 127675, subd. (a) [applying chapter to 

manufacturers of prescription drugs that are “purchased or 

reimbursed” by the listed entities].) 

Purchasers described in Health and Safety Code 

section 127675 include state purchasers like CCHCS, as well as 

“licensed health care service plan[s],” “health insurer[s] holding 

a valid outstanding certificate of authority from the Insurance 

Commissioner,” and “pharmacy benefit manager[s]” as 

defined under Business and Professions Code section 4430, 

subdivision (j).2 (Health & Saf. Code, § 127675, subd. (a).) 

Pharmacy benefit managers in turn “shall notify [their] large 

contracting public and private purchasers of the increase”; a

“ ‘large purchaser’ ” is defined as “a purchaser that provides 

coverage to more than 500 covered lives.” (Id., § 127677, 

subd. (e).)

Neither Health and Safety Code section 127677 nor any 

other provision enacted under Senate Bill No. 17 requires the 

purchasers to keep the price increase notices confidential or 

otherwise restricts the purchasers’ use of the information in the 

notices. 

2 A pharmacy benefit manager “manages the prescription 

drug coverage” provided by entities such as health insurers and 

health care service plans. (Bus. & Prof. Code, § 4430, subds. (a), 

(j).)
8

CCHCS provided the trial court with a list of 

approximately 170 individuals registered to receive the price 

increase notices. The registered recipients represented over 70 

public and private entities, such as the California Department of 

Public Health, the County of Los Angeles, CalPERS, Blue Shield, 

Kaiser Permanente, and CVS Health.3

B. Amgen’s disclosure

On November 15, 2018, Amgen provided notice pursuant to 

Health and Safety Code section 127677 to all registered 

purchasers, including CCHCS. The notice consisted of an e-mail 

and an attachment. The e-mail, marked “Confidential” both in 

the subject line and at the beginning of the message text (some 

capitalization omitted), stated, “Amgen is providing the enclosed 

60 day notification of potential list price actions for select drugs 

as required by California SB 17 to all registered purchasers. In 

addition to the potential list price increases included in the 

attached notification, Amgen also intends to decrease list prices 

for select products in 2019.” 

The attachment consisted of a chart of 13 drugs, listing for 

each the earliest date of a price increase, the current wholesale 

acquisition cost, and a range of possible increases in both dollar 

amounts and percentages, with zero as the bottom of each range.4 

3 It appears from the list provided by CCHCS that 

multiple employees of a single entity have registered for receipt 

of the price increase notices.

4 Amgen did not provide “a statement regarding whether a 

change or improvement in the drug necessitates the price 

increase.” (Health & Saf. Code, § 127677, subd. (c)(2).) That 

omission is not at issue in this appeal.
9

On December 3, 2018, CCHCS informed Amgen by letter 

that it had received a CPRA request from Reuters News seeking 

all price increase notices received by CCHCS from November 1 to 

November 16, 2018. CCHCS stated, “Due to the confidentiality 

disclaimer set forth in [Amgen’s] notification documents, CCHCS 

is providing this notice of its intent to disclose such records, in 

their entirety, in response to the PRA request.” CCHCS stated it 

would disclose the notice unless it received a court order to the 

contrary by December 17, 2018. CCHCS stated that it “does not 

identify a legal basis for nondisclosure of the price increase 

notifications, as the records and its contents were provided 

pursuant to a statutory obligation . . . .”

On December 11, 2018, Amgen filed a complaint and 

petition for writ of mandate “seek[ing] declaratory and injunctive 

relief ” to prevent CCHCS from disclosing its price increase 

notice. Amgen claimed its potential price increases constituted 

trade secrets privileged under Evidence Code section 1060, which 

exempted them from CPRA disclosure under Government Code 

section 6254, subdivision (k). Amgen did not challenge the 

validity of Senate Bill No. 17 or Health and Safety Code 

section 127677.

Amgen’s writ petition was directed solely at protecting the 

confidentiality of the proposed price increases disclosed in the 

price increase notice; Amgen acknowledged in later filings that 

“[i]f Amgen in fact implements an increase in the [wholesale 

acquisition cost] for any particular product, that increase can be 

disclosed.” 

The trial court granted Amgen’s unopposed ex parte 

application for a temporary restraining order. Amgen then 

moved for a preliminary injunction, which CCHCS opposed. 
10

In support of its motion, Amgen submitted a declaration 

from an employee, Rachelle Wan (Wan). Wan declared that 

“Amgen invests substantial resources in developing its pricing 

strategy” and “spend[s] considerable time, effort, and money 

determining and properly calibrating Amgen’s prices for its 

products, as well as making decisions about which products may 

see price changes and what possible changes may be 

implemented.” According to Wan, “Amgen diligently protects the 

confidentiality” of its drug pricing strategy, including through 

employee training and limiting which employees have “access to 

information regarding drug prices and potential price changes.” 

Wan attested that Amgen released the information to the 

registered purchasers “solely for the purpose of complying with” 

Health and Safety Code section 127677, and “would not otherwise 

disclose this information publicly.” 

Wan contended that public disclosure of Amgen’s potential 

price changes would put it at a “significant competitive 

disadvantage by providing Amgen’s competitors valuable nonpublic information and insights about Amgen’s pricing strategy, 

internal decision-making, internal forecasts, and a roadmap for 

Amgen’s potential actions with respect to certain of its products.” 

Wan opined that a competitor armed with information about 

Amgen’s potential future price increases could “(i) undercut 

Amgen’s prices, (ii) ‘dump’ competing drugs onto the market in 

advance to decrease Amgen’s sales, (iii) start a publicity 

campaign against Amgen’s products, or (iv) negotiate sales

contracts with potential clients and strengthen their existing 

client base,” all to Amgen’s detriment. 

The trial court issued a written ruling in Amgen’s favor on 

February 1, 2019. The trial court found that Amgen had 
11

demonstrated a reasonable probability of prevailing on the merits 

of its writ petition. Citing Wan’s declaration, the trial court 

found that Amgen had sufficiently demonstrated that the 

information in its price increase notice contained trade secrets. 

Specifically, the trial court found that Amgen had made 

reasonable efforts to maintain the secrecy of its potential price 

changes, and the pricing information had “independent economic 

value” in that Amgen “expended time, effort, and money” in 

setting the prices and its “pricing strategy provides [Amgen] with 

a competitive advantage over competitors.” 

The trial court rejected CCHCS’s argument that disclosure 

of the pricing information to the registered purchasers vitiated 

any trade secret protection, because “the law compelled [Amgen] 

to make the disclosure,” and “there is no evidence the pricing 

information in the Notice is ‘generally known to the public’ or 

[Amgen’s] competitors.” The trial court also rejected CCHCS’s 

argument that the CPRA trade secret exemption under 

Government Code section 6254, subdivision (k) was permissive, 

not mandatory, finding that “without the ability to bring a 

reverse-CPRA action, [Amgen’s] trade secret protection would be 

left to the discretion of [CCHCS].” 

The trial court acknowledged that one of the goals of 

Senate Bill No. 17 was to “ ‘improve data transparency’ ” 

regarding drug pricing, but found this goal “is not thwarted 

through recognizing a manufacturer’s trade secret information 

for up to 60 days before the price increase is effectuated.” 

Finally, the trial court found that “the balance of relative 

harms [in granting the injunction] tips in [Amgen’s] favor.” 

Despite Amgen’s disclosure of the pricing information to the 

registered purchasers, “there is no evidence those purchasers 
12

have not voluntarily complied with [Amgen’s] request to maintain 

the confidentiality of the information,” and “the audience to 

whom [Amgen] actually disclosed the pricing information was not 

[Amgen’s] competitors. Therefore, public dissemination of the 

pricing information could be harmful to [Amgen] notwithstanding 

[Amgen’s] compliance with SB 17.” 

The trial court signed an order granting the preliminary 

injunction on March 11, 2019, stating that “Amgen’s Notice or 

information contained in Amgen’s Notice shall not be disclosed by 

CCHCS to any third parties pursuant to a Public Records Act 

request or otherwise.”

5 (Footnote omitted.) The order further 

stated that “[n]othing in this Order shall prevent CCHCS from 

disclosing a price increase to the Wholesale Acquisition Cost 

(WAC) implemented by Amgen for the medications in the Notice.” 

CCHCS timely appealed from the grant of the preliminary 

injunction. Amgen applied ex parte to stay the trial court 

proceedings pending resolution of the appeal, which CCHCS 

opposed. The trial court denied the ex parte application. 

The trial court subsequently sustained CCHCS’s demurrer 

to the mandamus cause of action with leave to amend.6 Amgen 

5 CCHCS objected in the trial court to the “or otherwise” 

language in the preliminary injunction order, which arguably 

bars any public disclosure, and not just disclosure pursuant to a 

CPRA request. CCHCS does not renew this challenge on appeal; 

we therefore do not address the validity or effect on this appeal of 

the “or otherwise” language.

6 The trial court also stayed Amgen’s cause of action for 

declaratory relief and sustained the demurrer without leave 

to amend to the cause of action for injunctive relief. The 

trial court’s rulings on the demurrer are not at issue in this 

appeal. 
13

did not amend, instead voluntarily dismissing its action, thereby 

abandoning its attempt to prevent CCHCS from providing the 

price increase notification to Reuters News. Amgen represents 

on appeal that the dismissal did not “jeopardize[e] its trade 

secrets because it had already implemented the proposed price 

changes for the drugs listed in the SB 17 notice.” 

DISCUSSION

I. This Appeal Is Not Barred by the Mootness Doctrine

As an initial matter, Amgen argues that its voluntary 

dismissal of the underlying action dissolved the preliminary 

injunction CCHCS seeks to challenge, and thus the appeal should 

be dismissed as moot. As CCHCS notes, however, we “retain[ ] 

discretion to decide a moot issue if the case presents an issue of 

‘ “substantial and continuing public interest” ’ and is capable of 

repetition yet evades review.” (Citizens Oversight, Inc. v. Vu

(2019) 35 Cal.App.5th 612, 615; Conservatorship of Wendland

(2001) 26 Cal.4th 519, 524, fn. 1.) 

This is such a case. The issues involved are capable of 

repetition. We reasonably can expect that Amgen will provide 

price increase notices in the future, and will again attempt to 

enjoin disclosure of those notices under the CPRA. Indeed, at the 

hearing on CCHCS’s demurrer, Amgen’s counsel admitted, 

“[W]e’re going to have the same issue the next time a disclosure 

is made and if a C.P.R.A. request is made for that information.” 

Counsel continued, “So it becomes a repeated issue.” 

The issues raised by this case are not limited to the parties 

before us. Amici curiae GlaxoSmithKline LLC and ViiV 

Healthcare US state that they “have each been notified by state 

agencies on three separate occasions that third parties were 
14

seeking disclosure of the advance price increase submissions,” 

and both have taken legal action to prevent the public agencies 

from disclosing the submissions. 

Amgen suggests the dispute at issue in this case is unlikely 

to recur because the contents of Amgen’s future price increase 

notices may change—for example, Amgen may no longer include 

a range of possible price increases, instead listing only a specific 

increase—which in turn may affect the trade secret analysis. 

Because our resolution of this appeal does not turn on the 

contents of Amgen’s notice, we reject this argument.

The issues in this case also are likely to evade review. As 

Amgen has made clear, its goal in this litigation was to prevent 

disclosure of its proposed price increases for the 60-day period 

before Amgen implemented the new prices. Once Amgen 

implemented the price increases, it could (and did) dismiss its 

reverse-CPRA action without jeopardizing its purported trade 

secrets. Nothing prevents Amgen from taking a similar approach 

to future price increase notices, in which case the trial and 

appellate courts would never reach the merits of the case.7

We further conclude that the interrelation of trade secret 

protections and Health and Safety Code section 127677 is an 

issue of substantial and continuing public interest, given the 

7 Amgen represents that it dismissed the underlying case 

not to avoid a ruling on the merits, but out of concern that 

changes in the content of its future notices might render any 

declaratory relief based on its current notice of limited use. We 

do not question Amgen’s motives. We merely note that a 

pharmaceutical manufacturer has little incentive to continue 

prosecuting an action to protect its price increase notice once it 

has implemented the price increases publicly.
15

multiple legal actions taken by drug manufacturers to prevent 

disclosure of their price increase notices, the filing of three briefs 

by amici curiae in this case, and the fact that the disclosure in 

the case was sought by a prominent news organization.

Amgen argues that CCHCS “cannot invoke the 

discretionary exception to mootness because it voluntarily chose 

not to preserve the status quo pending this appeal” when 

it opposed Amgen’s request to stay the trial court proceedings. 

Amgen cites Fair v. United States E.P.A. (9th Cir. 1986) 795 F.2d 

851 (Fair), which declined to consider a moot appeal when it was 

“unlikely that this controversy will arise again between these 

parties,” and “[t]he sole reason this case ‘evaded review’ is the 

appellants’ failure to take requisite action,” such as posting a 

bond along with their request for a preliminary injunction or 

seeking a stay of the trial court’s judgment pending appeal. 

(Id. at p. 855.)

Fair is inapposite. As set forth above, the controversy at 

issue in this case is likely to arise again between these parties, 

and the appeal was rendered moot not through CCHCS’s 

inaction, but by Amgen’s decision to dismiss the underlying case, 

something CCHCS could not have prevented even had it agreed 

to stay the proceedings in the trial court.

Amgen’s other cited cases do not support the proposition 

that application of the mootness exception depends on the 

appellant taking action to preserve the status quo. Instead, the 

courts in those cases declined to apply the exception because they 

were not persuaded the issues in the cases were likely to recur. 

(See Building a Better Redondo, Inc. v. City of Redondo Beach

(2012) 203 Cal.App.4th 852, 867 [no exception to mootness 

applied because “the appeal of the judgment in this case presents
16

fact-specific issues that are unlikely to recur”]; Santa Monica 

Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1551 

[declining to apply an “exception for recurring controversies” to 

an otherwise moot appeal because the recurrence of issues 

concerning a particular construction project in future undefined 

projects was speculative].) Amgen also cites Wilson & Wilson v. 

City Council of Redwood City (2011) 191 Cal.App.4th 1559, but 

that case did not address any exceptions to the mootness 

doctrine.

We proceed to the merits of CCHCS’s appeal.

II. The Trial Court Abused Its Discretion by Granting 

the Preliminary Injunction

CCHCS raises several contentions on appeal. Two are 

dispositive. We agree that the trial court abused its discretion 

when it concluded that (1) Amgen had sufficiently shown its price 

increase notice is a trade secret despite its disclosure to the 

registered purchasers, and (2) Amgen sufficiently demonstrated 

it would be harmed if CCHCS disclosed Amgen’s price increase 

notice to Reuters News and other members of the public during 

the 60-day notice period under Health and Safety Code 

section 127677. We assume without deciding that the price 

increase information was a trade secret before Amgen disclosed it

to the purchasers. 

A. Standard of review

“[A] preliminary injunction is an order that is sought by a 

plaintiff prior to a full adjudication of the merits of its claim.” 

(White v. Davis (2003) 30 Cal.4th 528, 554, italics omitted.) “To 

obtain a preliminary injunction, a plaintiff ordinarily is required 

to present evidence of the irreparable injury or interim harm that 
17

it will suffer if an injunction is not issued pending an 

adjudication of the merits.” (Ibid.) 

Trial courts “ ‘evaluate two interrelated factors when 

deciding whether or not to issue a preliminary injunction. The 

first is the likelihood that the plaintiff will prevail on the merits 

at trial. The second is the interim harm that the plaintiff is 

likely to sustain if the injunction were denied as compared to the 

harm that the defendant is likely to suffer if the preliminary

injunction were issued.’ ” (ITV Gurney Holding Inc. v. Gurney

(2017) 18 Cal.App.5th 22, 28–29 (ITV Gurney).) 

“We review a trial court’s application of these factors 

for abuse of discretion.” (ITV Gurney, supra, 18 Cal.App.5th 

at p. 29.) “However, if the ‘likelihood of prevailing on the merits’

factor depends upon the construction of a statute or another 

question of law, rather than evidence to be introduced at trial, 

our review of that issue is independent or de novo.” (Marken v. 

Santa Monica-Malibu School Dist. (2012) 202 Cal.App.4th 1250, 

1261 (Marken).)

B. The California Public Records Act

Under the CPRA, “every person has a right to inspect any 

public record” except records that are “exempt from disclosure by 

express provisions of law.” (Gov. Code, § 6253, subds. (a), (b).) 

“ ‘In other words, all public records are subject to disclosure 

unless the Legislature has expressly provided to the contrary.’ ” 

(American Civil Liberties Union Foundation v. Superior Court

(2017) 3 Cal.5th 1032, 1038–1039.) “ ‘Public records’ includes any 

writing containing information relating to the conduct of the 

public’s business prepared, owned, used, or retained by any state 

or local agency . . . .” (Gov. Code, § 6252, subd. (e).) The parties 
18

do not dispute that the price increase notice that Amgen sent to 

CCHCS is a public record.8

Although the CPRA provides a mechanism to challenge an 

agency’s refusal to disclose a requested public record (see Gov. 

Code, § 6258), it provides no mechanism for a third party to 

prevent a public agency from disclosing public records. (Marken, 

supra, 202 Cal.App.4th at p. 1267.) “Therefore, third parties 

must bring an independent action for declaratory relief or 

traditional mandamus if they believe they will be adversely 

affected by disclosure.” (Pasadena Police Officers Assn. v. City of 

Pasadena (2018) 22 Cal.App.5th 147, 160, fn. 16.) This type of 

mandamus action is commonly called a “reverse-CPRA action.” 

(National Conference of Black Mayors v. Chico Community 

Publishing, Inc. (2018) 25 Cal.App.5th 570, 575, fn. 2.)

Here, Amgen bases its reverse-CPRA action on 

Government Code section 6254, which lists over two dozen 

categories of documents exempt from disclosure under the CPRA. 

Amgen claims its price increase notice is exempt from disclosure 

under subdivision (k) of that section, which exempts “[r]ecords, 

the disclosure of which is exempted or prohibited pursuant to 

federal or state law, including, but not limited to, provisions of 

the Evidence Code relating to privilege.” Amgen contends that 

subdivision (k) incorporates the trade secret privilege under 

8 Amici curiae GlaxoSmithKline LLC and ViiV Healthcare 

US argue that Amgen’s notice is not a public record. Because the 

parties have not raised this argument, we decline to address it. 

(Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 

572 [“An amicus curiae ordinarily must limit its argument to the 

issues raised by the parties on appeal, and a reviewing court need 

not address additional arguments raised by an amicus curiae”].) 
19

Evidence Code section 1060, which provides that “the owner of a 

trade secret has a privilege to refuse to disclose the secret, and to 

prevent another from disclosing it, if the allowance of the 

privilege will not tend to conceal fraud or otherwise work 

injustice.” 

The exemptions in Government Code section 6254 

“are permissive, not mandatory: They allow nondisclosure but 

do not prohibit disclosure.” (Marken, supra, 202 Cal.App.4th 

at p. 1262; see Gov. Code, § 6254, 2d to last para. [“This section 

does not prevent any agency from opening its records concerning 

the administration of the agency to public inspection, unless 

disclosure is otherwise prohibited by law”].) In other words, a 

government agency has the discretion to invoke an exemption 

under Government Code section 6254, but is not required to do 

so. Because mandamus cannot be used “ ‘to control an exercise of 

discretion’ ”(Marken, at p. 1266), a party bringing a reverseCPRA action must show disclosure is “ ‘otherwise prohibited by 

law,’ ” that is, that the government agency lacks discretion to 

disclose. (Id. at p. 1270, quoting Gov. Code, § 6254, 2d to last 

par.) Parties have brought reverse-CPRA actions, for example, 

based on the state constitutional right to privacy (Marken, at 

p. 1271) and the requirement under Penal Code section 832.7, 

subdivision (a) that peace officer personnel records remain 

confidential. (Pasadena Police Officers Assn. v. Superior Court

(2015) 240 Cal.App.4th 268, 285 (Pasadena Police).)

It is not clear to us that the trade secret evidentiary 

privilege is a broad prohibition on disclosure akin to the 

constitutional right to privacy or the statutory protection for 

peace officer personnel records. Evidentiary privileges as a 

general matter apply in a “ ‘[p]roceeding,’ ” defined in the 
20

Evidence Code as “any action, hearing, investigation, inquest, or 

inquiry (whether conducted by a court, administrative agency, 

hearing officer, arbitrator, legislative body, or any other person 

authorized by law) in which, pursuant to law, testimony can be 

compelled to be given.” (Evid. Code, § 901; see also id., § 910 

[Evidence Code privileges “apply in all proceedings”].) We are not 

aware of any authority holding that the trade secret evidentiary 

privilege bars the government from disclosing information 

outside of the context of a “proceeding,” nor has Amgen directed 

us to any such authority. 

Although the Legislature expanded the reach of the 

evidentiary privileges by incorporating them into the CPRA as 

exemptions, those exemptions, like all exemptions under 

Government Code section 6254, are not mandatory. Thus, while 

incorporation of the evidentiary privileges into the CPRA grants 

the government additional discretionary bases to refuse 

disclosure, it does not necessarily follow that the Legislature 

intended to allow third parties to assert those privileges outside 

the context of a “proceeding” to prohibit the government from 

disclosing information subject to those privileges.

In light of the above, it is not a foregone conclusion that the 

trade secret privilege under Evidence Code section 1060 is a 

proper basis for a reverse-CPRA mandamus action. Given our 

holding in Part C of our Discussion, post, that Amgen has failed 

to show its price increase notice was a trade secret after it had 

been disclosed pursuant to Senate Bill No. 17, however, we need 

not decide the question.
21

C. Amgen has failed to show a probability of 

success on the merits

CCHCS contends the trial court abused its discretion by 

concluding that Amgen had sufficiently shown that its price 

increase notice was a trade secret despite its disclosure to the 

registered purchasers. We agree. 

“ ‘[W]hether information constitutes a trade secret is a 

question of fact.’ ” (Global Protein Products, Inc. v. Le (2019) 

42 Cal.App.5th 352, 367.) The party claiming the trade secret 

privilege under Evidence Code section 1060 bears the burden of 

proving its entitlement to that privilege. (Bridgestone/Firestone, 

Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) 

Similarly, a party resisting disclosure under the CPRA bears the 

burden of proving an exemption applies. (Pasadena Police, supra,

240 Cal.App.4th at p. 290.) In this case, the record does not 

support the trial court’s finding that Amgen had met its burden.

In applying Evidence Code section 1060 and Government 

Code section 6254, subdivision (k), the trial court used the trade 

secret definition from Civil Code section 3426.1, subdivision (d), 

which is part of the Uniform Trade Secrets Act (UTSA) (Civ. 

Code, § 3426 et seq.). This was appropriate; the Evidence Code 

and case law apply the UTSA definition to the trade secret 

privilege under Evidence Code section 1060. (Evid. Code, § 1061, 

subd. (a)(1); Stadish v. Superior Court (1999) 71 Cal.App.4th 

1130, 1141 & fn. 10.)

Civil Code section 3426.1, subdivision (d) defines a trade 

secret as “information . . . that: [¶] (1) Derives 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) Is the subject of 
22

efforts that are reasonable under the circumstances to maintain 

its secrecy.” “In short, the test for a trade secret is whether the 

matter sought to be protected is information (1) that is valuable 

because it is unknown to others and (2) that the owner has 

attempted to keep secret.” (DVD Copy Control Assn., Inc. v. 

Bunner (2004) 116 Cal.App.4th 241, 251 (DVD Copy).)

Our focus here is on the first prong,9 which recognizes the 

self-evident principle that a trade secret must, in fact, be secret. 

(See 1 Milgrim on Trade Secrets (2009) § 1.03 [“Indispensable to 

an effective allegation of a trade secret is proof that the matter is, 

more or less, secret. In the absence of secrecy the property 

disappears”].) This is because the “intrinsic value” of a trade 

secret “is based upon, or at least preserved by, being safeguarded 

from disclosure.” (Pillsbury, Madison & Sutro v. Schectman

(1997) 55 Cal.App.4th 1279, 1287; see also DVD Copy Control 

Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881 [“ ‘Trade secrets 

9 Had Amgen voluntarily disclosed its purported trade 

secrets to the registered purchasers, Amgen likely would fail to 

satisfy the second prong of the trade secret definition because it 

would not have made reasonable efforts to maintain secrecy. 

(See, e.g., Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 

1454–1455 [manufacturer did not make reasonable efforts to 

maintain secrecy of information disclosed to customer without a 

secrecy agreement in place].) The trial court ruled, however, that 

Amgen’s disclosure in this case was “compelled” by the 

requirements of Health and Safety Code section 127677, the 

implication being that Amgen did everything it reasonably could 

to maintain secrecy short of violating the law. Because we 

conclude that Amgen has failed to make a sufficient showing to 

satisfy the first prong, we do not decide whether Amgen’s 

disclosure was “compelled” or what impact, if any, such a finding 

might have on the second prong of the trade secret definition.
23

are a peculiar kind of property. Their only value consists in their 

being kept private’ ”].) 

Thus, “[p]ublic disclosure, that is the absence of secrecy, is 

fatal to the existence of a trade secret. ‘If an individual discloses 

his trade secret to others who are under no obligation to protect 

the confidentiality of the information, or otherwise publicly 

discloses the secret, his property right is extinguished.’ ” (In re 

Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 304 

(Providian Credit Card), quoting Ruckelshaus v. Monsanto Co.

(1984) 467 U.S. 986, 1002.) In Providian Credit Card, for 

example, the court held that telemarketing scripts are not trade 

secrets once they are read to customers. (Providian Credit Card, 

at p. 305.) 

Amgen does not dispute that it disclosed its price increase 

notice to over 170 registered purchasers. The disclosure did not 

stop there, because those registered purchasers who were 

pharmacy benefit managers were required by statute also to 

inform their “large contracting public and private purchasers,” 

whether or not those contracting purchasers themselves were

registered.

10 (Health & Saf. Code, § 127677, subd. (e).)

Amgen provided no evidence that the recipients of the price 

increase information, whether registered purchasers or 

purchasers contracting with pharmacy benefit managers, were 

10 Senate Bill No. 17 itself contains no limitation on the 

number of purchasers entitled to receive the price increase notice, 

so long as they either meet the statutory definition and register, 

or are “large” purchasers that are contracting with a pharmacy 

benefit manager that is registered. As noted earlier, “large” 

purchasers are those that “provide[ ] coverage to more than 500 

covered lives.” (Health & Saf. Code, § 127677, subd. (e).)
24

under any contractual obligation to maintain its confidentiality, 

nor does Senate Bill No. 17 impose any confidentiality 

obligations.11 In contrast, other provisions of Senate Bill No. 17 

expressly impose confidentially requirements for certain 

information disclosed to the government. For example, Health 

and Safety Code section 1367.243 (Stats. 2017, ch. 603, § 1), 

which requires health care service plans annually to report 

information regarding pharmaceuticals dispensed under the 

plans (id., subd. (a)(2)), states that “the department shall keep 

confidential all of the information provided to the department 

pursuant to this section, and the information shall be protected 

from public disclosure.” (Id., subd. (f).) No such language 

pertaining to the price increase notices appears in Senate Bill 

No. 17.

Given the price increase notice’s disclosure to an unknown 

number of recipients, none of whom was bound to keep it in 

confidence, it would not appear that Amgen’s price increase 

notice could be called “secret.” 

The trial court found to the contrary, relying on the 

proposition that disclosed information nonetheless may retain 

trade secret status so long as it is not “generally known to the 

public or to other persons who can obtain economic value from its 

disclosure or use.” (Civ. Code, § 3426.1, subd. (d)(1); see Masonite 

Corp. v. County of Mendocino Air Quality Management Dist.

(1996) 42 Cal.App.4th 436, 451, fn. 11 (Masonite) [“limited 

11 At the hearing on Amgen’s preliminary injunction 

motion, Amgen’s counsel suggested Amgen has “confidentiality 

expectations and obligations” with its purchasers, but Amgen 

has not identified any evidence in the record supporting this 

contention. 
25

disclosure to noncompetitors does not result in loss of the trade 

secret privilege where . . . the holder of the privilege made 

reasonable efforts to maintain secrecy”].) 

The trial court found “no evidence the pricing information 

in the Notice is ‘generally known to the public’ or [Amgen’s] 

competitors.” The trial court further noted “there is no evidence 

those purchasers have not voluntarily complied with [Amgen’s] 

request to maintain the confidentiality of the information,” 

presumably referring to Amgen’s placing the term “Confidential” 

in both the subject line and text of the e-mail transmitting the 

price increase notification. 

In so concluding, the trial court misapplied the burden of 

proof and abused its discretion. As the authorities cited above 

indicate, disclosure to others, who have no obligation to maintain 

confidentiality, will destroy a trade secret. As the party asserting 

the trade secret privilege, it was Amgen’s burden to establish 

that its price increase notice remained confidential despite 

disclosure to the registered purchasers and “large” customers of 

pharmacy benefit managers. At a minimum, this would have 

required some evidence that the purchasers did not, and would 

not, disclose the information to the general public or to those 

“who can obtain economic value from its disclosure or use.” (Civ. 

Code, § 3426.1, subd. (d)(1).) Amgen presented no evidence on 

this issue. The trial court instead relied on a purported lack of 

evidence of further disclosure, thus improperly shifting the 

burden of proof to CCHCS.

Amgen argues that at the preliminary injunction stage, it 

need only show “ ‘a reasonable probability’ that it would prevail 

on the merits.” This is so, but in the absence of any evidence 

whatsoever that Amgen’s price increase notice maintained its 
26

confidentiality after disclosure to the registered purchasers and 

others, the trial court had no basis to find Amgen had a 

probability of prevailing on that critical issue, much less a 

reasonable one.

The trial court’s finding that Amgen’s disclosure was 

“compelled” does not affect our conclusion. The question here is 

not why Amgen disclosed its price increase notice, but whether 

that disclosure rendered the notice no longer confidential. 

Even assuming arguendo that the registered purchasers 

did not disseminate the price increase notice further, we would 

conclude that Amgen has failed to show that the notice 

maintained its purported trade secret status. Amgen has not

explained why the registered purchasers, who directly or 

indirectly sit on the opposite side of the negotiating table from 

Amgen, are not themselves “persons who can obtain economic 

value” from advance knowledge of Amgen’s prospective pricing 

information. (Civ. Code, § 3426.1, subd. (d)(1).) To paraphrase 

Amgen’s declarant Wan, a large purchaser negotiating deals for

Amgen’s and its competitors’ products presumably would greatly 

value insight into Amgen’s “pricing strategy, internal decisionmaking, internal forecasts,” and “roadmap[s] for Amgen’s 

potential actions.” Thus, whatever benefit Amgen may have 

derived from keeping secret its future price increases would have 

been lost once those increases were disclosed to the purchasers, 

even if the purchasers used the information solely for their own 

purposes without disclosing it further. 

Among other things, purchasers aware of upcoming price 

increases can seek less expensive alternatives from Amgen’s 

competitors, to the purchasers’ economic benefit and Amgen’s 

detriment. Indeed, the legislative history of Senate Bill No. 17 
27

indicates that this was precisely what the Legislature intended 

to happen. (See Sen. Health Com., Analysis of Sen. Bill No. 17 

(2017–2018 Reg. Sess.) Mar. 14, 2017, p. 8 [advance notice 

provision “gives purchasers . . . time . . . to seek other 

alternatives, including obtaining alternative formulations of 

drugs for which there are therapeutic equivalents”]; Assem. Com. 

on Appropriations, Analysis of Sen. Bill No. 17 (2017–2018 Reg. 

Sess.) as amended July 20, 2017, p. 4 [“the advance price 

notification will help [the purchaser] . . . find alternatives to 

costly drugs . . . and prevent unnecessarily high payment for 

drugs, such as those with short-term price hikes where an 

alternative formulation can achieve the same result”].) 

In short, Amgen has failed to explain how its purported 

trade secret maintained its confidentiality and concomitant value 

to Amgen when it was disclosed to over 170 purchasers who had 

the incentive to use the information to their benefit and Amgen’s 

detriment, and were not subject to any restrictions on using or 

further disseminating the information.

Amgen’s cited cases, some of which the trial court relied 

upon as well, are unavailing. We discuss each in turn.

Masonite, supra, 42 Cal.App.4th 436 held that air 

emissions information submitted to government regulators 

did not lose trade secret protection when those regulators, who 

were statutorily bound to maintain the confidentiality of the 

information, inadvertently disclosed the information to two 

environmental organizations.12 (Id. at pp. 450–451.) Thus, 

12 Masonite claimed trade secret status under statutes 

specific to air emissions information submitted to regulators, 

none of which is applicable to this case. (See Gov. Code, § 6254.7; 
28

despite the disclosure, the trade secret holder could prevent 

another environmental organization from obtaining the 

information through a public records request. (Id. at pp. 451, 

456.) 

The Masonite court reasoned, “We do not equate limited, 

unsanctioned acquisition of confidential information by a third 

party, such as occurred here, with more general, authorized 

dissemination to the public or competitors which results in loss of 

trade secret privileges. The public agencies which received 

the . . . information were not entitled to distribute it further, so 

Masonite maintained the protection afforded by law to prevent 

disclosure of designated trade secrets to the general public 

and competitors.” (Masonite, supra, 42 Cal.App.4th at p. 451, 

fn. omitted.) Although not applicable in that case, the Masonite 

court found the trade secret definition in Civil Code 

section 3426.1, subdivision (d), the definition at issue in the 

instant case, supports the proposition that “limited disclosure to 

noncompetitors does not result in loss of the trade secret privilege 

where . . . the holder of the privilege made reasonable efforts to 

maintain secrecy.” (Masonite, at p. 451, fn. 11.) It is for this 

proposition that Amgen cites Masonite.

The government’s inadvertent disclosure in Masonite is not 

analogous to Amgen’s disclosure under Senate Bill No. 17. 

Masonite stands for the proposition that the government’s 

erroneous disclosure of information that it is statutorily bound to 

keep confidential does not convert the information into a public 

Health & Saf. Code, § 44346; Masonite, supra, 42 Cal.App.4th at 

pp. 450–451.)
29

record, at least when the inadvertent disclosure is “limited” and 

made to “noncompetitors.” 

Here, Amgen, not the government, disclosed the price 

increase notice to the registered purchasers. Amgen did so in 

compliance with a statutory regime that, far from protecting 

Amgen’s price information, required that it be disclosed to a long 

list of potentially adverse recipients with no limitations on those 

recipients’ use or further dissemination of the information. 

Amgen cannot claim to have been unaware of the possible 

consequences of its disclosure, including the loss of trade secret 

protections; trade groups opposed Senate Bill No. 17 precisely 

because it “requires the disclosure of commercially sensitive 

pricing information” “without confidentiality protections.” 

(Assem. Com. on Appropriations, Analysis of Sen. Bill No. 17 

(2017–2018 Reg. Sess.) as amended July 20, 2017, p. 4

[summarizing joint letter of Pharmaceutical Research and 

Manufacturers of America, Biotechnology Innovation 

Organization, California Life Sciences Association, and Biocom].)

Also, as we have explained, Amgen has failed to make any 

showing that the registered purchasers were not akin to 

competitors who could derive economic value from Amgen’s 

pricing information, or that the purchasers would not further 

disseminate Amgen’s price increase notice. Indeed, the pharmacy 

benefit managers were required to disseminate it further to their 

“large” contracting purchasers. Thus, to the extent information 

may remain a trade secret despite “limited disclosure to 

noncompetitors,” such as the small number of environmental 

organizations in Masonite, Amgen has not shown that principle 

applies here. 
30

Amgen also quotes DVD Copy, supra, 116 Cal.App.4th 241, 

which stated, “Publication on the Internet does not necessarily 

destroy the secret if the publication is sufficiently obscure or 

transient or otherwise limited so that it does not become 

generally known to the relevant people, i.e., potential competitors 

or other persons to whom the information would have some 

economic value.” (Id. at p. 251.) DVD Copy does not in fact apply 

this principle, concluding instead that the evidence indicated the 

Internet disclosure in that case likely reached millions of people. 

(Id. at p. 252.) Thus, DVD Copy gives no guidance as to what it 

means for a publication to be “sufficiently obscure or transient or 

otherwise limited” that it does not destroy trade secret 

protections. Also, as we have explained, Amgen has failed to 

show that the registered purchasers were not “other persons to 

whom the information would have some economic value.” (Id. at 

p. 251.) DVD Copy therefore does not undercut our conclusion 

that Amgen has failed to show that its price increase notice 

remained a trade secret after disclosure to the registered 

purchasers.

Amgen cites American Defense Systems, Inc. v. Southern 

California Gold Products, Inc. (C.D. Cal. May 14, 2009, 

No. CV 07-7134) 2009 WL 10671854, at page *3 for the 

proposition that “limited disclosure for [a] specified purpose 

‘cannot be considered tantamount to placing plaintiff ’s trade 

secrets in the public domain.’ ” In that case, however, the trade 

secret holder had a contract with the federal government “which 

explicitly prevent[ed] general or public disclosure of trade 

secrets.” (Ibid.) Thus, the trade secret holder providing its 

products to the government under the terms of that contract did 
31

not vitiate its trade secret protections. (Ibid.) Amgen has 

demonstrated no such obligation of confidentiality here.

Amgen cites Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 

1514, 1522 (Morlife) for the proposition that information that is 

“ ‘not readily ascertainable, but only discoverable with great 

effort’ ” can be a trade secret. Morlife did not concern the legal 

effect of the disclosure of trade secrets; instead, it addressed 

whether the information in a roofing company’s customer list was 

“ ‘readily ascertainable’ through public sources” such that it 

could not constitute a trade secret in the first place. (Id. at 

pp. 1521–1522.) Assuming arguendo that principle applies here, 

it is of no help to Amgen. Even if Amgen’s price increase notice 

were not readily ascertainable by the general public (although 

Amgen provided no evidence of this), it was certainly 

ascertainable by the purchasers who received the notice without 

any limitation on using that information to their economic 

advantage.

Amgen contends in its supplemental briefing and 

emphasized at oral argument that recipients of the price increase 

notice did in fact have “a duty to maintain the secrecy and limit 

use of Amgen’s trade secrets” under the trade secret 

misappropriation statutes. (See Civ. Code, § 3426.1, 

subd. (b)(2)(A)(ii) [misappropriation includes “[d]isclosure or use 

of a trade secret” when the trade secret was “[a]cquired under 

circumstances giving rise to a duty to maintain its secrecy or 

limit its use”].) Amgen argues that CCHCS “recognized this 

duty” when it sent Amgen the letter informing Amgen of Reuters 

News’s CPRA request. Amgen further argues that Senate Bill 

No. 17 “contemplates that CCHCS will use price increase 

notifications for only a specific, limited purpose,” namely to 
32

“ ‘understand and plan for specific price increases.’ ” (Quoting 

Assem. Com. on Appropriations, Analysis of Sen. Bill No. 17 

(2017–2018 Reg. Sess.) as amended July 20, 2017, p. 3.) 

As we have discussed, nothing in Senate Bill No. 17 

requires purchasers to maintain the confidentiality of price 

increase notices. The fact that CCHCS, in light of Amgen’s 

unilaterally marking its price increase notice confidential, 

notified Amgen before responding to the CPRA request, does not 

establish that CCHCS was obligated to do so. It is telling that in 

that same letter, CCHCS stated that it had “not identif[ied] a 

legal basis for nondisclosure,” and intended to disclose the price 

increase notice absent a court order. CCHCS’s letter cannot be 

read to concede any confidentiality obligation. Even if it could, 

we would not be bound by any such concession given the absence 

of any supporting language in Senate Bill No. 17.

Furthermore, there is no language in Senate Bill No. 17 

limiting the purposes for which recipients may use the price 

increase notice. Indeed, reading limitations into the statutory 

scheme would be inimical to its purpose, given that one of the 

intended goals of Senate Bill No. 17 was to allow the purchasers 

to find less expensive alternatives for the drugs listed in the price 

increase notices. This would include use of the information in the 

price increase notice in negotiations to accomplish that goal, 

including negotiations between purchasers and Amgen’s 

competitors. 

Amgen cites federal cases in support of its 

misappropriation argument. All these cases are inapposite,

because they involve confidentiality obligations arising from 

agreements or express statutory mandates. (See Jerome Stevens 

Pharmaceut. v. Food & Drug. Admin. (D.C. Cir. 2005) 402 F.3d 
33

1249, 1252 [federal law prohibited disclosure of trade secrets at 

issue]; Kramer v. Secretary, United States Dept. of Army (2d. Cir. 

1980) 653 F.2d 726, 730 [plaintiff alleged “government employees 

agreed to honor her demand that the information, once disclosed 

[in an effort to obtain a government contract], be treated in 

confidence”]; Inteliclear, LLC v. ETC Global Holdings (C.D. Cal. 

Apr. 5, 2019, No. 2:18-cv-10342) 2019 WL 3000648, at p. *3 

[under license agreement, “Defendant had a duty to maintain in 

confidence Plaintiff ’s intellectual property”]; BladeRoom Group 

Ltd. v. Emerson Elec. Co. (N.D. Cal. 2018) 331 F.Supp.3d 977, 

984 [defendant’s written agreement to use plaintiff ’s information 

“ ‘only for the purpose of internal evaluation of whether to enter 

into a business relationship’ ” gave “ ‘rise to a duty to maintain 

secrecy’ ”].) 

Amgen argues that a holding that it lost trade secret 

protection by complying with Health and Safety Code 

section 127677 “raises significant due process and other 

constitutional questions that this Court should avoid,” such as 

whether disclosure constitutes an unconstitutional taking of 

property. (See People v. Garcia (2017) 2 Cal.5th 792, 804

(Garcia) [under the doctrine of constitutional avoidance, “a 

statute should not be construed to violate the Constitution ‘ “ ‘if 

any other possible construction remains available’ ” ’ ”].)

We note again that Amgen has not challenged the 

constitutional validity of Senate Bill No. 17, either on appeal or 

below, but instead relies solely on Evidence Code 1060 and 

Government Code section 6254, subdivision (k) as a basis to bar 

disclosure under the CPRA. Even assuming arguendo that our 

interpretation of Senate Bill No. 17 implicates constitutional 

questions, Amgen has failed to persuade us of another 
34

“ ‘ “ ‘possible construction’ ” ’ ” (Garcia, supra, 2 Cal.5th at p. 804) 

of the relevant statutes. Amgen urges us to read into Senate Bill 

No. 17 confidentiality obligations and limitations on recipients’ 

use of the price increase notice that the language and intent of 

the bill do not support. Absent those obligations and limitations,

we must conclude, based on the plain language of Civil Code 

section 3426.1, subdivision (d) and case law interpreting it, that 

Amgen has failed to show a likelihood of prevailing on its claim 

that its price increase notice satisfied the statutory definition of a 

trade secret once it was disclosed to the registered purchasers

and others. We will not, for the sake of avoiding potential 

constitutional questions, import confidentiality obligations and 

limitations into a statute that is not susceptible to such an 

interpretation. 

Amgen also argues that interpreting Senate Bill No. 17 as 

we have would “create perverse incentives encouraging 

non-compliance.” To the extent Amgen claims that the advance 

notice requirement is bad policy, that is for the Legislature to 

decide. We note again that the Legislature enacted Senate Bill 

No. 17 over the pharmaceutical manufacturers’ express objection 

that the bill “requires the disclosure of commercially sensitive 

pricing information” “without confidentiality protections.” 

(Assem. Com. on Appropriations, Analysis of Sen. Bill No. 17 

(2017–2018 Reg. Sess.) as amended July 20, 2017, p. 4.) One 

could view Amgen’s preliminary injunction motion as an attempt 

to obtain from the courts an outcome that the Legislature 

apparently rejected.

The parties debate at length whether the Legislature 

intended the price increase notices to be publicly available 

beyond those statutorily entitled to receive it. Whatever the 
35

Legislature’s intent, the effect of disclosure to the registered 

purchasers and customers of pharmacy benefit managers was the 

loss of secrecy essential to meeting the first prong of the UTSA 

trade secret definition. If the Legislature did not intend that 

effect, the Legislature may of course address the issue. Again, to 

the extent Amgen urges that we impose limitations on 

disseminating the price increase information once received by the 

registered purchasers and “large” pharmacy benefit manager

customers, that is the Legislature’s prerogative and not a matter 

for judicial fiat.

D. The trial court abused its discretion by 

concluding that the balance of harms favored 

Amgen

The trial court’s balancing of harms relied on the same 

reasoning as did its analysis of the trade secret claim: Because 

Amgen had disclosed its pricing information only to the limited 

number of registered purchasers, and not to the general public or 

its competitors, further dissemination of the information would 

be harmful to Amgen during the 60-day period defined in 

Senate Bill No. 17, tipping the balance of harms in its favor. 

As set forth above, Amgen has failed to show that 

disclosure to the registered purchasers and pharmacy benefit 

manager customers had not already placed Amgen’s price 

increase notice in the hands of those who would use it to their 

advantage and Amgen’s detriment, thus causing the very harm 

Amgen sought to prevent with its preliminary injunction. The 

trial court’s finding that “the audience to whom [Amgen] actually 

disclosed the pricing information was not [Amgen’s] competitors” 

did not factor in this patent consequence of Amgen’s disclosure or 

that this consequence was what the Legislature intended in 
36

enacting Health and Safety Code section 127677 in the first 

place. 

Amgen’s claim of harm is undercut further by the fact that 

it ultimately discloses its purported trade secret publicly when it 

implements its price increases 60 days after notifying the 

registered purchasers. To the extent a competitor can divine 

“pricing strategy, internal decision-making, internal forecasts,” 

and “roadmap[s] for Amgen’s potential actions” from price 

listings, as Wan asserted, the competitor can do so once the 

prices are public. Similarly, at that time the competitor can 

engage in the conduct predicted by Wan, including undercutting 

Amgen’s prices, dumping competing drugs on the market, 

starting a publicity campaign against Amgen, or negotiating 

deals with Amgen’s customers. Amgen has failed to explain the 

benefit of delaying these purported consequences for 60 days, 

particularly when during that period, the registered purchasers 

can use the price increase notice without limitation to Amgen’s 

detriment. 

We also observe that Amgen’s rival drug manufacturers are 

subject to the same advance notice requirements. Thus, 

whatever competitive disadvantage Amgen might suffer by 

disclosing its prices early is shared by its rivals. Amgen argues 

that some of its competitors may not comply with the notice 

requirements, but this is pure speculation. 

Amgen contends that some of the information in its price 

increase notice may not become public after 60 days and 

therefore should be entitled to protection. Wan stated in her 

declaration, “Pursuant to SB 17, Amgen may implement the price 

increases at any point after notice or Amgen may decide not to 

implement the price increases at all. Furthermore, Amgen may 
37

increase prices by any amount within the specified range 

contained in Amgen’s notices.” 

Assuming arguendo Wan correctly characterized the 

requirements of Senate Bill No. 17, she provided no evidence 

suggesting that Amgen actually has, or would, avail itself of 

these options. Her assertions appear to us to be mere argument. 

They also appear to be internally inconsistent. Given Amgen’s 

concern for the harm public dissemination of its pricing may 

cause, it seems unlikely Amgen would announce any prices it was 

not going to implement within 60 days. Indeed, were Amgen to 

disclose a proposed price increase and later retreat from 

implementing that increase, that conduct could call into question 

Amgen’s claim that it had made “efforts that are reasonable 

under the circumstances to maintain . . . secrecy.” (Civ. Code, 

§ 3426.1, subd. (d)(2).)

Amgen argues that “public disclosure of trade secret 

information constitutes irreparable harm as a matter of law.” 

This argument presupposes that Amgen’s price increase notice 

remained a trade secret after its disclosure to the registered 

purchasers and customers of pharmacy benefit managers. As we 

have already explained, we disagree with that assertion. 
38

DISPOSITION

The order granting the preliminary injunction is reversed. 

California Correctional Health Care Services is awarded its costs 

on appeal.

CERTIFIED FOR PUBLICATION.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.