1 AndrewF. Pierce (State Bar No.

101889)
Stacy Y. North (State Bar No. 219034)
2 PIERCE & SHEARER LLP
3 Woodside Corporate Center
2055 Woodside Road, Suite 110
4 Redwood City, CA 94061
Phone: (650) 843-1900
5 Fax: (650) 843-1999
6 Email: apierce@pierceshearer.com
snorth@pierceshearer.com
7
8 Attorneys for Plaintiff
9 JAMES A. PHILLS, JR.

10
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SANTA CLARA
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UNLIMITED JURISDICTION
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NOTICE OF MOTION AND MOTION FOR
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v. SUMMARY JUDGMENT, OR IN THE
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ALTERNATIVE, SUMMARY
u &l"'~ :?; 18 THE BOARD OF TRUSTEES OF THE ADJUDICATION AGAINST GARTH
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r;-.:i :-s ~ LELAND STANFORD JUNIOR SALONER
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0 20 DOES 1through25, Date: May 11, 2017
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Time: 9:00 a.m.
21 Defendants. Dept.: 6
Judge: Hon. Theodore C. Zayner
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Trial Date: None Set
23
24 AND RELATED CROSS-COMPLAINT.

25
26 TO THE PARTIES AND TO THEIR ATTORNEYS OF RECORD:

27 PLEASE TAKE NOTICE that pursuant to Code of Civil Procedure 437(c), on May 11,

28 2017, at 9:00 a.m., or as soon thereafter as the matter may be heard in Department 6 of the
above-entitled court, located at the Downtown Superior Court, 191 North First Street, San Jose,

1
PHILLS' NOTICE OF MOTION AND MSJ, OR IN THE ALTENRATIVE
SUMMARY ADJUDIA TION AGAINST SALON ER Case No. 114CV263146
 1 CA 95113, Plaintiff James A. Phills, Jr. ("Phills") will and hereby does move this court for
2 summary judgment, or in the alternative, for summary adjudication against Garth
3 Saloner's("Saloner") First Amended Cross-Complaint.
4 1. The Court should grant summary judgment in favor of Phills and against Saloner,
5 pursuant to California Code of Civil Procedure 437c(a) and 437c(p)(2), on the grounds that

6 Stanford cannot establish the elements of any of the causes of action contained in Saloner's

7 Cross-Complaint against Phills.

8 2. Alternatively, if the Court for any reason does not grant summary judgment, the

9 Court should grant summary adjudication, pursuant to California Code of Civil Procedure

10 437c(f)(l) and 437c(p)(2), on the grounds that:

11 Phills is entitled to summary adjudication on the first and second claim for relief, for

12 Invasion of Privacy and Violation of the Computer Fraud and Abuse Act, because the claims are

\0 13 barred by the statute of limitations. Both claims arise out of the same allegations, that Phills'
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u~ 1F: The second claim for relief, for Violation of the Computer Fraud and Abuse Act
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additionally fails, because the undisputed facts establish that Saloner has not sustained a loss in
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excess of $5,000 in any one year period, as required by the statute.
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Phills is entitled to summary adjudication on the third cause of action, for Violation of
22
California Computer Data and Access Fraud, because the undisputed material facts establish that
23
Phills did not act "without permission" within the meaning of California Penal Code 502.
24
Phills accessed his wife's electronic communications with passwords she provided or without
25
needing a password at all. Further, Phills was acting within the scope of his employment when
26
he checked his wife's Stanford emails. He is, thus, exempt from liability pursuant to Penal Code
27
502 (h)(2) and (i). Even if his conduct was not within the scope of his employment, Phills is
28
exempt from liability under Penal Code 502 (c), because the undisputed facts establish that his

2
PHILLS' NOTICE OF MOTION AND MSJ, OR IN THE AL TENRATIVE
SUMMARY ADJUDIATION AGAINST SALONER Case No. l 14CV263146
 1 conduct did not cause injury within the meaning of the statute. Finally, Sal oner cannot bring a
2 civil action under Penal Code 502, because he did not suffer damages or loss.
3 Phills is entitled to summary adjudication on the fifth cause of action, for Conversion,
4 because Phills did not unlawfully convert Saloner's property, and Saloner did not suffer legally
5 cognizable harm from an alleged unlawful taking.
6
This Motion is based upon this notice of motion and motion and the accompanying
7
memorandum of points and authorities; the separate statement of undisputed material facts; the
8
declarations of Stacy Y. North and Plaintiff James A. Phills, Jr.; all pleadings and papers on file
9
in this action; the anticipated reply brief; and upon such oral argument of counsel and any other
10
evidence as may be presented to the Court at the time of the hearing of this motion.
11

12
Dated: February 16, 2017 PIERCE & SHEARER LLP
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PHILLS' NOTICE OF MOTION AND MSJ, OR lN THE ALTENRATIVE
SUMMARY ADJUDIA TION AGAINST SALONER Case No. l 14CV263146