Ntc of Demurrer And Demurrer To 5th Amended Complt 05172018 900am Dept 13 Atty Talarides

Demurrer

Cal. Super. - 6th Dist.August 30, 2016

No O O 00 NN O N wn A Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES N. KRAMER (SBN 154709) Email: jkramer@orrick.com ALEXANDER K. TALARIDES (SBN 268068) Email: atalarides@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 Attorneys for Defendant NVIDIA CORPORATION Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/26/2018 10:33 AM Reviewed By: V. Taylor Case #16CV299320 Envelope: 1453738 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA WELLEX CORPORATION, a California Corporation, Plaintiff, V. NVIDIA CORPORATION, a California Corporation, FABRINET USA, INC., a California Corporation, FABRINET WEST, INC., a California Corporation, and DOES 1- 20, inclusive, Defendants. Case No.: 16CV299320 DEFENDANT NVIDIA CORPORATION’S NOTICE OF DEMURRER AND DEMURRER TO FIFTH AMENDED COMPLAINT Hearing: Date: May 17,2018 Time: 9:00 a.m. Dept.: 13 Judge: Hon. James L. Stoelker Complaint Filed: August 30, 2016 DEFENDANT NVIDIA CORPORATION'S NOTICE OF DEMURRER AND DEMURRER TO FIFTH AMENDED COMPLAINT O O ©0 0 NI O N Wn Ah W N N O N N N N N N / m mm e m e m E E e d e e NOTICE OF DEMURRER TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on May 17, 2018, at 9:00 a.m., or as soon thereafter as the matter may be heard, in Department 13 of the above-entitled Court, located at 191 North First Street, San Jose, California 95113, Defendant NVIDIA Corporation (“NVIDIA” or “Defendant”) will and hereby does demur to the First Cause of Action asserted in the Fifth Amended Complaint (“SAC”) filed by Plaintiff Wellex Corporation (“Wellex” or “Plaintiff’). This demurrer is based on the grounds that the First Cause of Action asserted in the 5AC does not state facts sufficient to state a claim upon which relief can be granted against NVIDIA. NVIDIA seeks an order sustaining its demurrer without leave to amend and dismissing the First Cause of Action alleged in the SAC with prejudice. This demurrer is filed pursuant to Code of Civil Procedure Section 430.10, and is based on this Notice of Demurrer and Demurrer, the accompanying Memorandum of Points and Authorities, Request for Judicial Notice and Declaration of Alexander K. Talarides, and all papers, pleadings, documents, argument of counsel, and other materials presented before or during the hearing on these motions, and any other evidence and argument the Court may consider. Dated: April 25, 2018 JAMES N. KRAMER ALEXANDER K. TALARIDES ORRICK, HERRINGTON & SUTCLIFFE LLP ALEXANDER K. TALARIDES Attorneys for Defendant NVIDIA CORPORATION -1- DEFENDANT NVIDIA CORPORATIONS NOTICE OF DEMURRER AND DEMURRER TO FIFTH AMENDED COMPLAINT O O 0 3 OO wn hb WLW ND N O N N N N N N N N m m m em e m e m e m p k E d 8 B H R B I R E B E L 3 2a & 2 » 0 = o DEMURRER Pursuant to Code of Civil Procedure Section 430.10, NVIDIA hereby demurs generally to the SAC on each of the following grounds: 1. Demurrer to First Cause of Action for Breach of Express Contract NVIDIA demurs to the First Cause of Action for Breach of Express Contract on the ground that it fails to state facts sufficient to constitute a cause of action. Code Civ. Proc. § 431.10(e). a. The First Cause of Action fails to state a cause of action because the alleged contract on which it is based is barred by California’s “equal dignities rule.” See Civ. Code § 2309; McGirr v. Gulf Oil Corp., 41 Cal. App. 3d 246, 257-58 (1974). b. The First Cause of Action fails to state a cause of action because the alleged contract on which it is based is too uncertain to be enforceable. See Ladas v. Cal. State Auto. Ass'n, 19 Cal. App. 4th 761, 770 (1993); Bustamante v. Intuit, Inc., 141 Cal. App. 4th 199, 213-14 (2006). c. The First Cause of Action fails to state a cause of action because the alleged contract on which it is based is barred by the statute of frauds. See Civ. Code § 1624(a)(1); Paul v. Layne & Bowler Corp., 9 Cal. 2d 561 (1937). WHEREFORE, NVIDIA prays: 1. to amend; That NVIDIA’s demurrer to the First Cause of Action be sustained without leave That the First Cause of Action be dismissed with prejudice; That NVIDIA be awarded its costs incurred herein; and For such other and further relief as the Court deems just and proper. 5 DEFENDANT NVIDIA CORPORATION’S NOTICE OF DEMURRER AND DEMURRER TO FIFTH AMENDED COMPLAINT OO 0 9 O&O wn br W N N S ND ND ND ND O N N O N mm e m em mE em e d e m e d ee d p m a9 6 o 2 0 B E B g e o e a RE B B E B Dated: April 25, 2018 JAMES N. KRAMER ALEXANDER K. TALARIDES ORRICK, HERRINGTON & SUTCLIFFE LLP ‘ By: = uc / ALEXANDER K. TALARIDES Attorneys for Defendant NVIDIA CORPORATION 3. DEFENDANT NVIDIA CORPORATION'S NOTICE OF DEMURRER AND DEMURRER TO FIFTH AMENDED COMPLAINT