SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker Presiding
for
Department 7, Honorable Beth McGowen
Bob Gutierrez, Courtroom Clerk
Court Reporter TBA
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE:
January 12, 2017
TIME:
9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED
OTHERWISE BELOW.
(SEE RULE OF COURT 3.1312)
TROUBLESHOOTING TENTATIVE RULINGS
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LINE #
CASE #
CASE TITLE
RULING
LINE 1
16CV294186
Whisper Napier-Finnegan v Ulta Click on line 1 for ruling
Salon, Cosmetics & Fragrance,
Inc.
Ricardo Cebrero v Zakskorn
No opposition is filed. Demurring defendant Skyline
Construction Company
Decking, Inc. was dismissed as a defendant in this action
on 12/29/16. Therefore, the demurrer is MOOT. To the
extent the entity Skyline Fencing as dba remains a
defendant, the demurrer is sustained without leave to
amend.
LINE 2
16CV300560
LINE 3
2014-1-CV-270709
Nematicito, Inc. v Spectrum Five, Click on line 3 for ruling
LLC
LINE 4
2014-1-CV-270709
LINE 5
2014-1-CV-270709
Nematicito, Inc. v Spectrum Five, Click on line 3 for ruling
LLC
Nematicito, Inc. v Spectrum Five, Click on line 3 for ruling
LLC
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker Presiding
for
Department 7, Honorable Beth McGowen
Bob Gutierrez, Courtroom Clerk
Court Reporter TBA
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 6
2015-1-CV-284853
B. Lin v S. Chang
Plaintiff’s Motion to Compel Further Responses to
Requests for Production of Documents is DENIED
Plaintiff, in effect, concedes that procedurally a subpoena
on the employees whose records are sought should have
been personally served pursuant to CCP section 1985.6 by
arguing that the notice was in “substantial” compliance.
It is true that the notice to consumer served on counsel for
defendant made its way to each of the employees for
purposes of a detailed objection, probably drafted by
defendant’s counsel but personally signed by each
employee. However, defendant’s opposition to the
production based on the failure of personal service on the
employee has merit. Plaintiff provides no authority for the
position that employer’s counsel’s “involvement in the
case obviates the need for personal service”. Defendant is
in jeopardy if it elects to produce confidential documents
to which the employee has raised both procedural and
substantive objections. The objection belongs to each
employee who has not been properly served. It is
speculation to assume that counsel for the employer has
advocated all the objections that could have been asserted
by the individual employees. However, a proper service is
easily accomplished. Therefore, both parties should
anticipate a determination of this matter on the merits and
meet and confer on an appropriate protective order related
to the subpoenaed employment records with the
assumption that good cause for their production likely will
be shown. Sanctions are denied.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker Presiding
for
Department 7, Honorable Beth McGowen
Bob Gutierrez, Courtroom Clerk
Court Reporter TBA
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 7
2015-1-CV-287884
J. Tirri v T. Chadha
LINE 8
2015-1-CV-286790
Santa Clara Unified School
District v C. Stampolis
LINE 9
LINE 10
LINE 11
LINE 12
LINE 13
LINE 14
LINE 15
Plaintiff’s Motion to Compel Production of Documents
and for Monetary Sanctions is DENIED. The scope of the
document requests is defined as all documents that have
been obtained by defendants about or regarding Plaintiff
related to the collision and resulting injuries and damages.
Documents within the custody or control of counsel are
discoverable. However, it would not be a proper use of
discovery for plaintiff to seek production of documents
equally available to him. [Pantzalas v. Superior Court
(1969) 272 Cal.App.2d 499 at page 503 ] Plaintiff’s
motion must be supported by good cause justifying the
demand. [CCP section 2031.310(b)(1)] The fact that
there is no alternative source for the information sought is
an important factor establishing good cause. On the other
hand, if all the documents requested are equally available
to plaintiff, there is no showing of good cause. Good
cause would justify production if there is some category of
document which plaintiff could not obtain on his own.
Plaintiff has not suggested any such likely or potential
documents. On the contrary, the documents identified are
generally described as “pictures, X-rays, etc.” Therefore,
it is apparent that the requests are not described by
category with reasonable particularity. [CCP section
2031.030(c)(1)] Sanctions are denied to both sides. [As
an aside, the court directs plaintiff’s counsel’s attention to
Section 7 of Santa Clara Bar Association Code of
Professionalism. See Reply brief p.1, line 24-25; p.2, line
4, line 28; p.4, line 1. Such rhetoric did nothing to assist
plaintiff’s argument.]
No opposition is filed. Plaintiff’s Motion for Money
Judgment is GRANTED
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker Presiding
for
Department 7, Honorable Beth McGowen
Bob Gutierrez, Courtroom Clerk
Court Reporter TBA
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 16
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LINE 30
Calendar line 1
Case Name: Whisper Napier-Finnegan v. Ulta Salon, Cosmetics & Fragrance, Inc., et al.
Case No.: 16CV294186
This is a wrongful termination and wage and hour action brought by plaintiff Whisper
Napier-Finnegan (“Plaintiff”) against defendants Ulta Salon, Cosmetics & Fragrance, Inc., Ulta
Beauty Store #279 (“the Store”), and Deborah Bates (“Bates”) (collectively “Defendants”).
Prior to her termination, Plaintiff worked at the Store, one of the stores Bates oversaw
as District Manager. On April 21, 2016, Plaintiff filed suit against Defendants alleging they
wrongfully terminated her and failed to pay her proper wages. On October 5, 2016, she filed a
proof of service indicating she served Bates via substituted service at the Store on September
22, 2016. On December 13, 2016, Bates filed the instant motion to quash service of process on
the ground of lack of personal jurisdiction. Plaintiff opposes the motion.
Bates argues the Court lacks personal jurisdiction over her due to defective substituted
service because 1) Plaintiff did not make a reasonable attempt to personally serve her before
attempting substituted service and 2) the location of the substituted service was not her usual
place of business and the service was not calculated to give her actual notice. 1
A defendant may file a motion to quash based on the court’s lack of personal
jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) A party must comply
with the statutory procedures for service of process before a court may obtain personal
jurisdiction over a defendant. (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th
383, 387.) When a defendant challenges a lack of personal jurisdiction on the basis of improper
service, the burden is on the plaintiff to offer facts to demonstrate service was effective.
(Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The statutes defining proper
service are construed liberally with a view to avoiding unnecessary disputes over legal
technicalities if actual notice is received. (Pasadena Medi-Center Associates v. Superior Ct.
(1973) 9 Cal.3d 773, 778.)
Service may be effected by “personal delivery of a copy of the summons and of the
complaint[.]” (Code Civ. Proc., § 415.10.) Alternatively, if the party cannot be personally
served with “reasonable diligence,” a plaintiff may utilize substitute service by leaving a copy
of the summons and complaint at the person’s “dwelling house, usual place of abode, usual
place of business, or usual mailing address” with a competent member of the household or
individual in charge of the office or place of business. (Code Civ. Proc., § 415.20, subd. (b).)
Bates first argues Plaintiff did not exercise reasonable diligence when attempting to
serve her personally before trying substituted service. This failure, she argues, makes the
1
The instant motion addresses the attempted service that occurred on September 22, 2016. Plaintiff
indicates she again attempted substituted service at the Store on December 27, 2016, after the motion
was filed. (See Cooper Decl., ¶ 5 & Exh. C.) Because the service took place at the same location under
similar circumstances and because neither party has argued whether this service makes the instant
motion moot, the Court makes no determination whether that service was effective.
substituted service invalid. Plaintiff argues she was diligent because the process server made
four attempts to personally serve Bates at her home before substitute serving her.
Before attempting substituted service on an individual defendant, a plaintiff must first
attempt personal service with reasonable diligence. (Code Civ. Proc., §§ 415.20, subd. (b),
416.90; see also Bein v. Brechtel-Jochin Group, Inc. (1992) 6 Cal.App.4th 1387, 1391
(“Bein”).) “‘Ordinarily, … two or three attempts at personal service at a proper place should
fully satisfy the requirement of reasonable diligence and allow substituted service to be
made.’” (Bein, supra, 6 Cal.App.4th at p. 1391-1392, citations omitted.)
Plaintiff relies on the declaration of Gordon Cooper (“Cooper”), who states he is a
registered process server, to support her argument she was diligent in attempting personal
service. Cooper declares on four occasions he attempted service at two locations in Sacramento
County each of which he identified as her home pursuant to public records. (Cooper Decl., ¶
3.) In her reply, Bates argues she does not live in Sacramento County but fails to support her
argument with any evidentiary facts, including where she does live. As such, Bates offers no
admissible evidence to contradict Cooper’s declaration. Plaintiff, therefore, met her burden to
establish reasonable diligence in attempting personal service on Bates before resorting to
substitute service.
Bates next argues the substituted service was ineffective because the Store, where the
substituted service was performed, was not her usual place of business. She supports her
argument by declaring her “home store,” where her office is located, is not the Store. (Bates
decl., ¶ 2.) She neither identifies where this “home store” is or how often she is there.
A usual place of business where service may be effected includes a defendant’s
customary place of employment as well as his or her own business enterprise. (Judicial Council
of Cal., com., reprinted at West’s Ann. Code. Civ. Proc. foll. § 415.20, subd. (b).) In
determining whether a place may be a usual place of business, “[i]t is crucial that a connection
be shown between the address at which substituted service is effectuated and the party alleged
to be served.” (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315, citing Zirbes v. Stratton
(1986) 187 Cal.App.3d 1407, 1416-1417.) “To be constitutionally sound the form of
substituted service must be ‘reasonably calculated to give an interested party notice of the
proceedings and an opportunity to be heard … [in order that] the traditional notions of fair play
and substantial justice implicit in due process are satisfied.” (Zirbes v. Stratton, supra, 187
Cal.App.3d at p. 1417, citations omitted.)
Here, Bates admits receiving notice of the suit following the service at the Store. (Bates
Decl., ¶ 3.) She also indicates she visits the Store “a couple times a month” as part of her job
overseeing nine stores. (Bates Decl., ¶ 2.) These statements are sufficient to establish a
connection between Bates and the location of the substituted service.
Given that Bates visited the Store at least semi-monthly, the service appears reasonably
calculated to give actual notice, particularly since she does not indicate how often she could be
found at her “home store.” Accordingly, the substituted service was effective at the Store.
For these reasons, the motion to quash is DENIED.
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Calendar line 2
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Calendar line 3
Case Name: Nematicito, Inc., et al. v. Spectrum Five LLC, et al.
Case No.:
(1)
(2)
(3)
1-14-CV-270709
Defendant Spectrum Five LLC’s Motion to Vacate the Order Granting Summary
Adjudication
Plaintiffs’ and Cross-Defendants’ Motion for Judgment on the Pleadings
Plaintiffs’ and Cross-Defendants’ Motion to Amend Answer
On September 7, 2014, plaintiffs Nematicito, Inc. (“Nematicito”) and Dedi Haziza
(“Haziza”) (collectively, “Plaintiffs”) filed a complaint against defendant Spectrum Five LLC
(“Spectrum”) asserting, among others, a cause of action for breach of contract.
On December 17, 2014, defendant Spectrum filed an answer to Plaintiffs’ complaint.
On August 4, 2015, defendant Spectrum filed a notice of substitution of attorney.
On October 26, 2015, defendant Spectrum’s attorney filed a motion to be relieved. On
December 1, 2015, the court issued an order granting defendant Spectrum’s attorney’s motion
to be relieved as counsel.
On December 9, 2015, Plaintiffs filed a motion for summary adjudication of the breach
of contract cause of action asserted in the complaint with a scheduled hearing date of March 8,
2016. On January 8, 2016, Plaintiffs filed a motion to file records under seal also scheduled
for hearing on March 8, 2016.
On February 25, 2016, defendant Spectrum appeared by new counsel and filed an exparte application seeking either to vacate or continue the motion for summary adjudication. On
February 29, 2016, the court issued an order granting a continuance of the hearing on
Plaintiffs’ motion for summary adjudication to April 26, 2016.
On March 15, 2016, defendant Spectrum filed a motion for leave to amend its answer
and filed a cross-complaint. On April 7, 2016, the court granted defendant Spectrum’s motion
and, on the same date, defendant Spectrum filed its amended answer and cross-complaint.
Spectrum’s cross-complaint alleges Haziza is the inventor of two patents. (CrossComplaint, ¶¶52 – 53 and 55 – 56.) Haziza assigned the patents to Wavebender, Inc. (CrossComplaint, ¶¶54 and 57.) On or about November 27, 2013, Nematicito and Spectrum entered
into a Technology Licensing and Development Agreement (“License Agreement”) which
purportedly granted Spectrum exclusive rights over certain technology, including the two
patents. (Cross-Complaint, ¶59.) The licensed technology did not meet Spectrum’s technical
requirements. (Cross-Complaint, ¶¶61 – 63 and 65 – 66.) Unknown to Spectrum, Nematicito
did not own or have the right to transfer the technology. (Cross-Complaint, ¶68.)
Based on these general facts, Spectrum’s cross-complaint asserts the following causes
of action:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,656,359
Declaratory Judgment of Invalidity of U.S. Patent No. 7,656,359
Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,884,779
Declaratory Judgment of Invalidity of U.S. Patent No. 7,884,779
Declaratory Judgment of Patent License Obligations
Declaratory Judgment of Failure of Consideration
Declaratory Judgment of Lack of Patent Ownership
On April 11, 2016, defendant Spectrum filed a notice of removal to the United States
District Court, Northern District of California. As a result, all further state court proceedings
were automatically suspended2 including the hearing of Plaintiffs’ motion for summary
adjudication. On June 23, 2016, this court resumed jurisdiction of this action after the federal
court (Hon. Richard Seeborg) issued an order remanding the action to state court.
On June 27, 2016, Plaintiffs appeared ex-parte to reset hearing dates after remand. The
court granted Plaintiffs’ request and scheduled the hearing on Plaintiffs’ motion for summary
adjudication and motion to seal for August 18, 2016. In the order, the court expressly noted,
“Defense counsel has agreed to this date. Opposition and reply shall be based on this date.”
On July 18, 2016, Plaintiffs filed their answer to defendant Spectrum’s cross-complaint.
On July 27, 2016, defendant Spectrum made an ex-parte application to continue the
hearing on the motion for summary adjudication and for an order shortening time on a motion
to be relieved. The court denied the request for continuance but allowed defendant Spectrum’s
counsel to file a motion to be relieved by July 29, 2016 with a hearing date set for August 11,
2016.
On July 28, 2016, defendant Spectrum made another ex-parte application for
continuance of the summary adjudication hearing date on the basis that it needed to conduct
discovery. The court granted defendant Spectrum’s request and continued the hearing to
October 27, 2016.3
On September 8, 2016, the court granted defendant Spectrum’s attorney’s motion to be
relieved as counsel.
On October 27, 2016, there being no opposition, the court granted Plaintiffs’ motion for
summary adjudication and motion to file records under seal. On November 17, 2016, the court
issued an order after hearing to that effect.
On November 21, 2016, defendant Spectrum filed a substitution of counsel.
On December 7, 2016, Plaintiffs filed two of the three motions now before the court:
(1) a motion for judgment on the pleadings as to Spectrum’s cross-complaint; and (2) a motion
to amend their answer to Spectrum’s cross-complaint.
“[T]he State court shall proceed no further unless and until the case is remanded.” (28 U.S.C. §1446, subd. (d).)
Pursuant to stipulation and order dated August 11, 2016, the hearing on Plaintiffs’ motion to seal was also
continued to October 27, 2016.
2
3
On December 21, 2016, defendant Spectrum filed the third motion now before the
court, a motion to vacate the order granting summary adjudication.
Discussion
I.
Defendant Spectrum’s motion to vacate the order granting summary adjudication
is DENIED.
Defendant Spectrum seeks relief pursuant to Code of Civil Procedure section 473,
subdivision (b) which states, in relevant part, “The court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect.”
“Unless the application is accompanied by an ‘attorney affidavit of fault,’ relief is
discretionary and must be based on a showing of ‘mistake, inadvertence, surprise, or excusable
neglect.’” (Weil & Brown, et al., CAL.PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The
Rutter Group 2016) ¶5:310, p. 5-91 citing Code Civ. Proc., §473(b) and Lorenz v. Commercial
Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
“In the absence of an ‘attorney affidavit of fault,’ attorney neglect is imputed to the
client. If the neglect is ‘excusable,’ the party is excused. If ‘inexcusable,’ the client may have a
malpractice action against the attorney, but there is no ground for relief under CCP §473(b).”
(Id. at ¶5:341, p. 5-98 citing Elston v. City of Turlock (1985) 38 Cal.3d 227, 236.) “The court
inquires whether a reasonably prudent attorney might have made the same error under similar
circumstances.” (Id. at ¶5:341.1, pp. 5-98 to 5-99 citing Generale Bank Nederland, N.V. v.
Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.)
Here, the court granted summary adjudication against defendant Spectrum based on the
lack of any opposition. In seeking relief, defendant Spectrum does not attribute the error to its
attorney’s failure to file an opposition. Instead, defendant Spectrum argues it is entitled to
relief due to the fact that its attorney of record at the time, David Wei (“Wei”), failed to notify
defendant Spectrum of the significance of the motion for summary adjudication, failed to
notify defendant Spectrum of the need to file a written opposition, and failed to notify
defendant Spectrum of the statutory deadline for filing opposition. Defendant Spectrum
contends that its counsel, in advance of and on the heels of being relieved, did not adequately
apprise defendant Spectrum of the need to prepare and file opposition to the Plaintiffs’ motion
for summary adjudication.
Defendant Spectrum alludes to the idea that Wei’s neglect amounts to “positive
misconduct.” “If the attorney’s neglect amounts to ‘positive misconduct’ toward the client,
and the client is relatively free from negligence, then, even in the absence of an ‘attorney
affidavit of fault,’ the client may be entitled to relief under §473(b). The theory is that the
‘positive misconduct’ terminates the attorney-client relationship, so that the attorney’s neglect
it not imputed to the client. [¶] But positive misconduct is narrowly construed. It will be found
only where there is a total failure on the part of counsel to represent the client, amounting to a
‘de facto severance of the attorney-client relationship.’” (Id. at ¶5:355, p. 5-102 citing Daley v.
County of Butte (1964) 227 Cal.App.2d 380, 391; Carroll v. Abbott Laboratories, Inc. (1982)
32 Cal.3d 892, 898.)
Although defendant Spectrum alludes to this theory of “positive misconduct” by
attorney Wei, defendant Spectrum does not proffer sufficient evidence to support such a theory
nor does defendant Spectrum cite to any analogous legal authority justifying relief under such
circumstances. The court finds defendant Spectrum’s purported ignorance to be disingenuous.
Defendant Spectrum made no fewer than three ex-parte applications to continue the motion for
summary adjudication. Defendant cannot deny knowledge of the significance of the motion
for summary adjudication or the need to retain counsel or need to file opposition in view of
these circumstances, particularly where at least one of the requested continuances was
supported by the declaration of one of its directors and corporate counsel, Scott Crawford.
Defendant Spectrum further contends that it ought to be excused because it did not
know of the deadline to file opposition and mistakenly believed that the court would continue
the hearing on the summary adjudication hearing after relieving attorney Wei. The test for
whether a party’s neglect is excusable is one of reasonable diligence. (See Weil & Brown, et
al., CAL.PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶5:329, p. 595 citing Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) Again, the court does
not find defendant Spectrum’s neglect or mistaken belief to be excusable under the
circumstances. It is this court’s view of the factual circumstances that defendant Spectrum
knew or should have known the significance of a motion for summary adjudication and the
need to file opposition. Inclusively, defendant knew or should have known that filing
opposition necessarily involved a deadline. Similarly, in view of the multiple continuances
sought and obtained by defendant Spectrum via court order, defendant Spectrum is not entitled
to rely on its mistaken belief that the summary adjudication hearing would be continued again
at a trial setting conference without a court order.
Accordingly, defendant Spectrum’s motion to vacate that order granting summary
adjudication is DENIED.
II.
Plaintiffs’ motion for judgment on the pleadings.
A.
Requests for judicial notice.
In support of the motion for judgment on the pleadings, Plaintiffs request judicial notice
of the order re: motion for summary adjudication entered November 17, 2016. Evidence Code
section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any
court of this state.” This section of the statute has been interpreted to mean that the trial court
may take judicial notice of the existence of the court’s own records. Evidence Code section
452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions
and court documents, along with the truth of the results reached—in the documents such as
orders, statements of decision, and judgments—but [the court] cannot take judicial notice of
the truth of hearsay statements in decisions or court files, including pleadings, affidavits,
testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)
Accordingly, Plaintiffs’ request for judicial notice is GRANTED.
In opposition to the motion for judgment on the pleadings, defendant Spectrum requests
judicial notice of Plaintiffs’ Notice of Motion to Remand to State Court and Memorandum of
Points and Authorities filed in the United States District Court, Northern District of California,
case number 16-cv-01859-RS. Evidence Code section 452, subdivision (d) states that the court
may take judicial notice of “records of any court of record of the United States.” Accordingly,
defendant Spectrum’s request for judicial notice is GRANTED.
B.
Plaintiffs’ motion for judgment on the pleadings as to the first through
fourth causes of action is DENIED.
Plaintiffs move for judgment on the pleadings as to the first four causes of action
asserted in Spectrum’s cross-complaint on the basis that this court lacks subject matter
jurisdiction. “The district courts shall have original jurisdiction of any civil action arising
under any Act of Congress relating to patents, plant variety protection, copyrights and
trademarks. No State court shall have jurisdiction over any claim for relief arising under any
Act of Congress relating to patents, plant variety protection, or copyrights.” (28 U.S.C.
§1338.)
In opposition, Spectrum argues Plaintiffs should be precluded, under the doctrine of
judicial estoppel, from even making this argument because Plaintiffs argued against federal
subject matter jurisdiction in seeking remand. Judicial estoppel, sometimes referred to as the
doctrine of preclusion of inconsistent position, prevents a party from “asserting a position in a
legal proceeding that is contrary to a position previously taken in the same or some earlier
proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial
process.” (13 Witkin, Summary of California Law (10th ed. 2005) Equity, §193, p. 532 citing
Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).)
“The doctrine [of judicial estoppel] applies when: (1) the same party has taken two
positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position (i.e., the tribunal adopted the position
or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position
was not taken as a result of ignorance, fraud, or mistake.” (MW Erectors, Inc. v. Niederhauser
Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 (Niederhauser) citing
Jackson, supra, 60 Cal.App.4th at p. 183.)
However, as Plaintiffs point out in reply, the doctrine of judicial estoppel does not
apply because the federal court did not adopt Plaintiffs’ argument. In remanding, the federal
court found defendant Spectrum failed to timely remove the action and specifically ruled that
“the issue of subject-matter jurisdiction over Spectrum Five’s counterclaims need not be
reached.” Since the federal tribunal did not reach the issue of subject matter jurisdiction, the
doctrine of judicial estoppel does not apply to prevent Plaintiffs from asserting this argument.
Returning to Plaintiffs’ argument, the Plaintiffs argue simply that the first four causes
of action in the cross-complaint seek declaratory relief regarding the invalidity or noninfringement of patents and, therefore, fall within the exclusive subject matter jurisdiction of
the federal courts. In reply, however, Plaintiffs clarify their position to be that the first through
fourth cross-claim are more appropriately asserted (in this state court action) as affirmative
defenses. This concession is in response to Spectrum’s citation to Applera Corp. v. MP
Biomedicals, LLC (2009) 173 Cal.App.4th 769 (Applera). In Applera, the court wrestled with
the issue of whether a state court action for breach of a licensing agreement involving patented
products fell within the exclusive jurisdiction of the federal courts. The Applera court
ultimately determined that state court jurisdiction was proper. Plaintiffs, nevertheless, focus on
the following statement by the Applera court: “the issue of patent validity could be litigated in
this case only as an affirmative defense to payment of royalties, which cannot create federal
jurisdiction.” (Applera, supra, 173 Cal.App.4th at p. 785; emphasis added.) Here, the basis for
the Plaintiffs’ motion for judgment on the pleadings is lack of subject matter jurisdiction. On
the sole issue of exclusive subject matter jurisdiction, however, this court will only make the
determination that the issues of patent validity and non-infringement are not exclusive to the
federal court under the circumstances pleaded.
Accordingly, Plaintiffs’ motion for judgment on the pleadings as to the first through
fourth causes of action in Spectrum’s cross-complaint is DENIED.
C.
Plaintiffs’ motion for judgment on the pleading as to the entire crosscomplaint is GRANTED.
Alternatively, Plaintiffs move for judgment on the pleadings as to the entire crosscomplaint by citing to Code of Civil Procedure section 1061 which states that, “The court may
refuse to exercise the power granted by this chapter in any case where its declaration or
determination is not necessary or proper at the time under all the circumstances.” “The
declaratory relief statute should not be used for the purpose of anticipating and determining an
issue which can be determined in the main action. The object of the statute is to afford a new
form of relief where needed and not furnish a litigant with a second cause of action for the
determination of identical issues.” (California Ins. Guarantee Assn. v. Superior Court (1991)
231 Cal.App.3d 1617.) It is Plaintiffs’ contention that the cross-claims asserted by Spectrum
are redundant of affirmative defenses already asserted in Spectrum’s answer. For instance, the
cross-claims for declaratory relief regarding patent invalidity and patent non-infringement are
already raised by Spectrum’s thirty-second and thirty-fourth affirmative defenses.
In opposition, Spectrum cites Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433,
where the court wrote, “[t]he mere circumstance that another remedy is available is an
insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an
action for declaratory relief pursuant to Code of Civil Procedure Section 1060 generally are
resolved in favor of granting relief.” Code of Civil Procedure section 1062 makes it clear that
declaratory relief is cumulative to other remedies. Perhaps the distinguishing characteristic in
Filarsky is that a special statute existed to provide more appropriate relief. “[T]he court
properly may refuse to grant relief where an appropriate procedure has been provided by
special statute and the court believes that more effective relief can and should be obtained
through that procedure. … In such a situation, the superior court would abuse its discretion if
it permitted the plaintiff, by initiating an ordinary declaratory relief action, to circumvent the
particular procedures and other provisions specified in the Legislature in the statutory scheme
that was intended to govern such disputes.” (Filarsky, supra, 28 Cal.4th at p. 433.) Here,
neither party cites to any special statutes which might govern.
In opposition, Spectrum also argues that the issue of patent ownership is appropriately
raised by declaratory relief. Plaintiffs point out, however, that this issue was already
affirmatively raised in Spectrum’s eighth affirmative defense which alleges, in relevant part,
“Plaintiffs lacked proper title or authority to enter into a patent license in the first place. For
instance, Plaintiffs have come forward with no allegation that Plaintiff Nematicito ever owned
or was authorized to license patents under the Agreement. Moreover, it appears that Plaintiff
Dedi Haziza may also have lacked ownership and authority.” On the whole, the court is
inclined to agree with Plaintiffs that the cross-claims are entirely redundant of matters already
placed at issue by Spectrum’s affirmative defenses and do not create any further or
independent relief. Accordingly, Plaintiffs’ motion for judgment on the pleadings as to
Spectrum’s cross-complaint is GRANTED.
D.
Plaintiffs’ motion for judgment on the pleadings as to the entire crosscomplaint [collateral estoppel] is GRANTED.
As yet a further basis for judgment on the pleadings, Plaintiffs contend the cross-claims
are barred by the doctrine of collateral estoppel. According to Plaintiffs, the court’s ruling
granting summary adjudication serves to collaterally estop Spectrum from asserting any of its
cross-claims. “Collateral estoppel is a doctrine which prevents relitigation of issues previously
argued and resolved in a prior proceeding. [Citation.] In order to apply this principle: (1) the
issue must be identical to that decided in the prior proceeding; (2) the issue must have been
actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in
the prior proceeding; (4) the decision must have been final and on the merits; and (5)
preclusion must be sought against a person who was a party or in privity with a party to the
prior proceeding. [Citation.]” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223,
1233 (Alvarez).) “In deciding whether to apply collateral estoppel, the court must balance the
rights of the party to be estopped against the need for applying collateral estoppel in the
particular case, in order to promote judicial economy by minimizing repetitive litigation, to
prevent inconsistent judgments which undermine the integrity of the judicial system, or to
protect against vexatious litigation.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)
In opposition, Spectrum argues first that it did not have a full and fair opportunity to
litigate the summary adjudication. In support, Spectrum relies on its motion to vacate and the
arguments raised therein. However, as discussed above, the court did not find those arguments
persuasive. Additionally, Spectrum contends issues raised in its cross-complaint were not
adjudicated by the summary adjudication ruling. For example, Spectrum contends the
summary adjudication ruling did not address ownership of the patents. “For a prior
adjudication to give rise to issue preclusion, it must appear that the identical issue was actually
litigated and necessarily decided in a prior proceeding.” (Yield Dynamics, Inc. v. TEA Systems
Corp. (2007) 154 Cal.App.4th 547, 582.) Here, all of the issues raised by Spectrum’s crossclaims aim to defeat plaintiff Nematicito’s right to recover under the License Agreement. The
summary adjudication ruling determined plaintiff Nematicito is entitled to recover $586,125
under the License Agreement. The issues raised in Spectrum’s cross-claims would have to be
necessarily decided in order to reach that result.
Accordingly, Plaintiffs’ motion for judgment on the pleadings as to Spectrum’s crosscomplaint is GRANTED WITHOUT LEAVE TO AMEND. Plaintiffs raised additional
argument in their motion for judgment on the pleadings. In light of the court’s ruling, the court
did not reach any additional arguments.
III.
Plaintiffs’ motion to amend answer is unopposed and GRANTED.
Based on defendant Spectrum’s non-opposition, Plaintiffs’ motion to amend answer is
GRANTED.
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