By Darren Chaker - Brightwell v. Scott McMillan

DINSMORE &
SHOHL LLP
SAN DIEGO
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REPLY RE MOTION TO DISMISS AMENDED COUNTERCLAIM
JOSHUA M. HEINLEIN (SBN 239236)
joshua.heinlein@dinsmore.com
JOSEPH S. LEVENTHAL (SBN 221043)
joseph.leventhal@dinsmore.com
DINSMORE & SHOHL LLP
655 West Broadway, Suite 840
San Diego, CA 92101
Ph: (619) 400-0500
Fx: (619) 400-0501
Attorneys for Plaintiff/Counterdefendant
L. LEE BRIGHTWELL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
L. LEE BRIGHTWELL, an
individual,
Plaintiff,
v.
THE MCMILLAN LAW FIRM, APC,
a professional corporation, SCOTT A.
MCMILLAN, an individual,
MICHELLE D. VOLK, an individual,
and DOES 1 through 25, inclusive,
Defendants.
Case No. 16-CV-01696-W-NLS
PLAINTIFF/COUNTERDEFENDANT L. LEE
BRIGHTWELL’S REPLY BRIEF IN
SUPPORT OF MOTION TO DISMISS
AMENDED COUNTERCLAIM PURSUANT
TO FRCP 12(B)(6)
[NO ORAL ARGUMENT Civil Local
Rule 7.1(d)]
THE MCMILLAN LAW FIRM, APC,
a professional corporation,
Counterclaimant,
v.
L. LEE BRIGHTWELL, an
individual,
Counterdefendant.
Date: September 18, 2017
Courtroom: 3C
Judge: Thomas J. Whelan
Magistrate Judge: Nita L. Stormes
Complaint Filed: June 30, 2016
Trial: None Set
Case 3:16-cv-01696-W-NLS Document 60 Filed 09/11/17 PageID.2074 Page 1 of 5

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1.
Plaintiff/counterdefendant L. LEE BRIGHTWELL (“Brightwell”) submits
the following reply brief in support of her motion to dismiss the The McMillan Law
Firm’s (“Counterclaimant”) seventh, eighth and ninth counterclaims in
Counterclaimant’s amended counterclaim.
I. INTRODUCTION
In its opposition brief, Counterclaimant hyperbolically accuses Brightwell of
unlawfully accessing Counterclaimant’s computer data and engaging in unfair
competition. But, the allegations in the amended counterclaim do not support such
rhetoric. Instead, the allegations show Counterclaimant gave Brightwell access to
its computer systems, and that Brightwell’s conduct cannot be construed as
business conduct giving rise to liability under California’s Unfair Competition Law,
Bus. & Prof. Code § 17200 (the “UCL”). Accordingly, Counterclaimant’s seventh,
eighth and ninth counterclaims should be dismissed with prejudice.
II. THE COURT SHOULD DISMISS THE SEVENTH, EIGHTH & NINTH
COUNTERCLAIMS
A. Counterclaimant’s Seventh and Eighth Counterclaims are Meritless
Counterclaimant’s seventh counterclaim is for violation of the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”). As shown below,
Counterclaimant cannot as a matter of law allege a claim for violation of the CFAA.
Under the the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”),
there are only two circumstances in which a person may be liable for accessing a
computer when such access “exceeds authorized access.” A person may be liable
when she:
(2) intentionally accesses a computer without
authorization or exceeds authorized access, and thereby
obtains--
(A) information contained in a financial record of a
financial institution, or of a card issuer as defined in
section 1602(n) of title 15, or contained in a file of a
consumer reporting agency on a consumer, as such terms
are defined in the Fair Credit Reporting Act (15 U.S.C.

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2.
1681 et seq.);
(B) information from any department or agency of the
United States; or
(C) information from any protected computer; [or]…
(4) knowingly and with intent to defraud, accesses a
protected computer without authorization, or exceeds
authorized access, and by means of such conduct furthers
the intended fraud and obtains anything of value, unless
the object of the fraud and the thing obtained consists
only of the use of the computer and the value of such use
is not more than $ 5,000 in any 1-year period;
18 U.S.C. § 1030(a)(2) and (4). Similarly, liability attaches under Penal Code
section 502 only if a person accesses a computer without permission.
Counterclaimant admits that it provided Brightwell access to its computer
systems and network. In its opposition brief, it contends that the following vague
allegation shows it revoked that permission: “On our about January of 2015,
Counterdefendant Lee Brightwell was sequestered from the Counterclaimant’s
active network, and given a desk inside the Firm’s library, with a firewalled IP
address.” (Dkt. 51, ¶ 83.) Contrary to Counterclaimant’s contentions, this does not
allege that Brightwell’s access to Counterclaimant’s computer network was
revoked.
Moreover, a person can only be liable for access that “exceeds authorized
access” if that person also obtains information on a protected computer. Contrary
to Counterclaimant’s false allegation, Counterclaimant itself was the one that
provided Brightwell’s subdirectory to the undersigned counsel. (Heinlein Dec., ¶ 2,
Exs. 1 and 2.) Accordingly, Counterclaimant must plausibly allege facts showing
that Brightwell actually obtained such information without permission.
B. Counterclaimant’s Ninth Counterclaim Fails to State a Claim for
Unfair Competition
As previously stated, the UCL defines unfair competition as “any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising…” (Emphasis added.) “The UCL covers a wide range of

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3.
conduct. It embraces anything that can properly be called a business practice and
that at the same time is forbidden by law.” Korea Supply Co. v. Lockheed Martin
Corp., 29 Cal.4th 1134, 1143 (2003) (emphasis added).
Brightwell’s conduct in filing and pursuing a lawsuit, particularly in her
individual capacity, cannot be the basis of a UCL claim as a matter of law because
such conduct is absolutely privileged. (Cal. Civ. Code § 47(b).) Brightwell’s
alleged attorney “dine and dash,” as Counterclaimant calls it, also does not qualify
as unfair competition as Brightwell’s payment of her attorneys is not business
conduct and the alleged “dine and dash” as to other attorneys is not conduct
Brightwell committed against Counterclaimant. Therefore, it cannot form the basis
of Counterclaimant’s claim. Brightwell’s computer access also cannot form the
basis of a UCL claim as (a) such access was authorized, and (b) such access was not
business conduct. It bears repeating: an individual person engaging in conduct in
pursuit of a lawsuit is not business conduct. Counterclaimant’s UCL claim should
be dismiss with prejudice.
III. CONCLUSION
For the reasons set forth in Brightwell’s original moving papers and above,
Counterclaimant’s seventh, eighth, and ninth counterclaims should be dismissed
with prejudice.
DATED: September 11, 2017 DINSMORE & SHOHL, LLP
By: /s/ Joshua M. Heinlein
JOSHUA M. HEINLEIN
Attorneys for Plaintiff
L. LEE BRIGHTWELL
11649268v1

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4.
CERTIFICATE OF SERVICE
I certify that, on the date specified below, a true copy of this document was
served electronically upon all registered CM/ECF users in this case as identified on
the Notice of Electronic Filing.
Dated: September 11, 2017 /s/ Joshua M. Heinlein
Joshua M. Heinlein

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