Crossdefendant Sinco Technologies Pte Ltds Amended Reply In Support of Its Demurrer To Xingkes Second Amended Crosscomplaint

Reply

Cal. Super. - 6th Dist.October 28, 2016

A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty M A J E S K K I ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16CV301867 Santa Clara - Civil TODD A. ROBERTS LAEL D. ANDARA JENNIFER E. ACHESON MARIO A. ISKANDER DANIEL A. GAITAN ROPERS MAJESKI PC 1001 Marshall Street, 5th Floor Redwood City, CA 94063 Telephone: ~~ 650.364.8200 Facsimile: 650.780.1701 Email: todd.roberts @ropers.com lael.andara@ropers.com jennifer.acheson @ropers.com mario.iskander @ropers.com daniel.gaitan @ropers.com Attorneys for Plaintiff and Cross-Defendant SINCO TECHNOLOGIES PTE LTD Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/5/2020 11:21 PM Reviewed By: R. Walker Case #16CV301867 Envelope: 4422601 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SINCO TECHNOLOGIES PTE LTD, Plaintiff, Vv. XINGKE ELECTRONICS (DONGGUAN) CO., LTD.; XINGKE ELECTRONICS (HONG KONG) CO., LTD.; SINCOO ELECTRONICS TECHNOLOGY CO., LIMITED.; JINLONG MACHINERY & ELECTRONICS CO., LTD.; LIEW YEW SOON aka MARK LIEW; SINCO ELECTRONICS (DONGGUAN) CO., LTD; NG CHER YONG aka CY NG; MUI LIANG TJOA; JIN SHAO PING; XU SHUGONG; QUEK SEOW ENG and DOES 5 through 20, inclusive, Defendants. AND RELATED CROSS-ACTION 4826-1381-9583.1 Case No. 16CV301867 CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS- COMPLAINT Date: June 12, 2020 [Contd. on Court’s Own Motion from 3/20/2020] Time: 9:00 A.M. Dept: 3 Judge: Hon. Patricia M. Lucas Trial: Not Set Complaint Filed: 10/28/16 CMC: 6/12/20 [Contd. on Court’s Own Motion from 3/20/2020] Original Cross-Complaint Filed: 7/18/19 FACC: 10/04/19 SACC: 01/17/20 CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SinCo submits this Amended Reply to address XingKe’s Opposition which, although apparently filed on April 20, 2020, was (1) ineffectively served; (2) not received therefore by SinCo’s counsel, Jennifer Acheson (nor any of its RMKB counsel of record), by e-mail on April 20, 2020, as mandated by Local Rule, Rules of Court, and the Code of Civil Procedure; and (3) not received the next business day April 21, 2020, or thereafter. Further, XingKe’s Opposition was evidently not uploaded to, or reflected by, the Court’s Docket between April 20 and 24, 2020. (Second Supp. Decl. of J. Acheson; Exhibits S - W.) It was not until April 28, 2020 that RMKB became aware that XingKe had filed Opposition papers, when XingKe'’s counsel Michael York sent an e-mail to Ms. Acheson stating that he was “concerned” by SinCo’s Reply filed on April 24, 2020, which stated that its Demurrer and Motion to Strike remained unopposed. (Decl. of J. Acheson; Exh. S.) The Court can will note that SinCo’s original Reply and Supplemental Declaration of Ms. Acheson state that as of April 24, 2020, its Demurrer and Motion to Strike remained unopposed. ! It is not clear why Mr. York waited until April 28, 2020 or four (4) days before bringing this to the attention of SinCo’s counsel, when XingKe’s counsel timely received SinCo’s Reply served by e-mail on April 24, 2020, as required by Local General Rule 6.B.(1), C.C.P. section 1010.6 (a) and (b), and C.R.C. 2.251 (c). (Decl. of J. Acheson; Exh. T.) I. XINGKE'S OPPOSITION SHOULD BE STRICKEN XingKe’s Amended Proof of Service for its Opposition to SinCo’s Demurrer and Motion to Strike the Second Amended Cross-Complaint (“SACC”) shows that it was served only by FedEx overnight delivery but not electronically on April 20, 2020. (Second Supplemental Decl. of J. Acheson; Exh. U.) As a result, SinCo has had to incur significant additional fees to its undue prejudice in preparing this Amended Reply and Second Supplemental Declaration. Santa Clara County Superior Court General Rule 6.B. (1) requires electronic service as follows: A. APPLICABLE STATUTES AND RULES OF COURT 1 SinCo asks that the additional Exhibits O through R, attached to Ms. Acheson’s Supplemental Declaration filed in SERPOIL of ihe (original Reply on April 24, 2020, but not SEE here kindly be considered as well. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Parties must comply with all requirements and conditions for electronic filing and service as set forth in Code of Civil Procedure section 1010.6(a)(1), (3), (4), (b)(1), (2), (5) and California Rules of Court (herein either “CRC,” “Rules of Court,” or “Rules”), Rules 2.250 through 2.253, 2.256, 2.257, and 2.259. (Eff. 04/29/19) B. ELECTRONIC FILING RULES THAT APPLY ONLY TO NON- CRIMINAL CASES (1) MANDATORY ELECTRONIC FILING AND SERVICE As authorized by Code of Civil Procedure section 1010.6(d) and Rules of Court, Rule 2.253(b)(1)(A), all parties represented by attorneys in all civil cases (including Family, Juvenile Dependency, and Probate cases) must file and serve documents electronically, except when personal service is required by statute or rule, and excluding ex parte applications...[or otherwise excused]. (Eff. 7/1/2019; emp. added) California Rules of Court Rule 2.251 states in part: (c) Electronic service required by local rule or court order (1) A court may require parties to serve documents electronically in specified actions by local rule or court order, as provided in Code of Civil Procedure section 1010.6 and the rules in this chapter. (Emp. added.) Code of Civil Procedure section 1010.6 provides in part: (a)(2)(A)() For cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d). (Emp. added.) In his opposition declaration, Mr. York fails to explain why he did not comply with electronic service requirements. If he believed SinCo’s counsel had not agreed to e-service, it is irrelevant since e-service is required as set forth above by General Rule 6.B. (1), C.C.P. § 1010.6 and C.R.C 2.251. The Opposition papers should be stricken as service of them on April 20, 2020 was ineffective. II. XINGKE’S ARGUMENT AND CONCLUSORY ALLEGATIONS ARE NO SUBSTITUTE FOR ESSENTIAL ELEMENTS AND SPECIFIC FACTS A. No Facts to Constitute a Coherent Claim for Breach of Implied Contract SinCo takes no issue with, and indeed expressly recognized, the standard of pleading required to survive a demurrer, namely, so long as the essential facts of some valid cause of action 4826-1381-9583.1 2 CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT R e d w o o d Ci ty R O P E R S A Pr of es si on al Co rp or at io n S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are alleged, it is sufficient even though Cross-complainants may be mistaken about their legal theory under the particular cause of action. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39.) 2 That is just not the case here. SinCo submits that even under the liberal pleading standard to be accorded, SinCo cannot possibly discern which allegations, whether taken alone or construed together as a whole, set forth the essential elements of an implied in fact contract. Even if one considers facts which might arise by reasonable implication from the allegations, SinCo is hard-pressed to identify those facts, and more importantly, the specific conduct, persons, statements, documents, and/or correspondence from which the terms of a contract could possibly be inferred. None of the allegations forming the first cause of action, i.e., “Introductory Allegations” (Paragraphs 1 through 18), “Common Allegations” (Paragraphs 19 through 54), or the “First Cause of Action for Breach of Implied Contract” (Paragraphs 55 through 80), sets forth the essential elements from which a contract could be implied. The gist of XingKe’s argument in opposition is that the formation of an implied contract is a question of fact for the jury or court to decide: 3 ...the formation of an implied contract is a question of fact and is a matter for proof at trial - not upon demurrer. By urging the Court to make such findings of fact at this early pleading stage of the case, the Demurrer completely ignores the distinction between pleading and proof. In short, the allegations of the SACC provide the SinCo with more than sufficient notice of the general scope of claims for beach of implied contract. (XingKe’s Oppos., 6: 6 -9; emp. added.) XingKe digresses. SinCo is not asking the Court to make “findings of fact;” SinCo is asking the Court to sustain its demurer because SinCo cannot even find the facts within the labyrinthine allegations which could give rise to an enforceable contract. The SACC does not, as XingKe contends, provide SinCo with notice, sufficient or at all, of bare essential terms of the claimed implied contract. XingKe’s argument is a non-sequitur because it assumes that the elements of an implied-in-fact contract have been pled. However, before the issue gets to the fact 2 See Moving Memorandum of Points and Authorities in support of Demurrer, 5: 19 - 27. 3 See also XingKe’s Opposition to Cross-Defendants’ Demurrer and Motion to Strike Second Amended Cross- Complaint, 3: 18 -25;6: 5-17. 4826-1381-9583.1 _ 3. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 finder, XingKe has to allege enough specific facts to state a cognizable cause of action for breach of an implied contract. Authorities cited by XingKe are inapposite. Division of Labor Law Enforcement v. Transpacific Trans. Co. (1977) 69 Cal. App.3d 268, 275) concerned a dispute between contracted employees and a shipping agency over whether there existed an implied contract to pay Christmas bonuses to the employees based on the agency’s past practice of doing so, or whether bonuses were a gift. The Court of Appeal affirmed the judgment after trial holding that, ...by reviewing and evaluating a host of evidence the trial court found that although respondent had paid bonuses as a gift in the past, it made neither an express nor an implied promise to pay any bonus to its employees. This finding of the trial court cannot be interpreted other than as a finding of ultimate fact which must be deemed ro have adjudicated by necessary implication all the intermediate evidentiary facts supporting the finding. (Division of Labor Law Enforcement v. Transpacific Trans. Co. (1977) 69 Cal.App.3d 268, 275; emp. added.) Division of Labor Law is inapposite because it does not address a demurrer but rather evidentiary findings after trial. Importantly, it addresses “the host of evidence” and “all the intermediary facts” which were evaluated and adjudicated by the lower court in concluding that a contract to pay bonuses could not be implied therefrom. (Division of Labor Law Enforcement, supra, 69 Cal.App.3d at 275.) A fortiori, discernible, specific facts to support an implied contract and its terms are absent from the SACC. Friedman v. Friedman ((1993) 20 Cal.App.4th 876, 888) is not authority for XingKe’s position that it has pled sufficient facts from which a contract may be inferred. Friedman is an appeal from an interlocutory order in a “Marvin” dissolution action awarding temporary spousal support. The Court of Appeal reversed the trial court’s finding that there was an implied contract between the parties “that if they separated, [respondent] would be supported by [appellant] in the same manner as if they had been legally married.” (Friedman, supra, 20 Cal. App.4th at 879.) Like Division of Labor Law, this case does not address the adequacy of a cause of action for breach of implied contract or its essential elements. If anything, Friedman supports SinCo. The Court found no evidence and no argument by respondent that the litigation in question (respondent's Marvin action) arose out of appellant's conduct (signing joint tax 4826-1381-9583.1 _4- CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 returns). (Friedman, supra, 20 Cal.App.4th at 887.) The evidence included the length (21 years) and conduct of the parties’ relationship (filing tax returns as and taking title to real property as husband and wife); and appellant’s assurances that he would “always support” respondent. A propos of this action, the Court emphasized that, 6 ¢ An implied contract *“ *... in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.’ ” (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 773...) It is thus an actual agreement between the parties, “the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621; emp. added.) (Id.) Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593), is not helpful because the issue there was whether the trial court could take judicial notice of affidavits and discovery responses in ruling on a demurrer. The Court held that a pleading valid on its face may nevertheless be subject to demurrer where matters judicially noticed by the court are inconsistent with the allegations, rendering the complaint meritless. (Del E. Webb Corp., supra, 123 Cal.App.3d at 603 - 605.) Unilab Corp. v. Angeles-IPA ((2016) 244 Cal.App.4th 622), is equally unhelpful because it affirmed a ruling on a summary judgment motion that the evidence established an independent contractor relationship between the parties and appellant had failed to establish conduct sufficient to prove an implied contract. (Unilab Corp., supra, 244 Cal.App.4th at 637 - 638.) XingKe has done nothing to address the allegations which expressly allege unlawful objects of a contract. As set forth in full in the moving papers, XingKe’s alleges in passim: 1. ...this is... a calculated scheme of retaliation by Cross-Defendants... - the principals of SinCo Singapore ... to wreak havoc upon a former ally and three innocent individuals. (Exh. N, p. 2: 15 - 19; emp. added.) 17....d. ...SinCo... [was] created and continued pursuant to a fraudulent plan, scheme, and device..., whereby the income, revenue, and profits of SinCo...were diverted by...Mr. Lim and Mr. Chee to themselves. (Exh. N, p. 5: 14 - 18; emp. added.) e. SinCo... [was] organized by said Mr. Lim and/or Mr. Chee[,] as a device to avoid individual liability and for the purpose of substituting financially irresponsible corporations, limited liability companies... (Exh. N, p. 5: 19 - 251; emp. added.) 52. Cross-Defendants then continued to perpetuate their grand scheme to destroy Xingke China, its new ownership, and employees. (Exh. N, p. 11:15 - 16; emp. added.) 4826-1381-9583.1 _5. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XingKe’s allegation that “[Y/64.] Xingke China’s implied contract with Cross-Defendants continued without interruption or issue for over ten years” alleges an ultimate legal conclusion that an implied contract existed but without supporting specific conduct to support the conclusion. In quoting Paragraphs 57 and 58, XingKe does not clarify for SinCo or the Court the specific conduct or specific individual(s) from which the existence of a valid, lawful contract can possibly be inferred. The allegations that SinCo “offered and ultimately granted XingKe China permission to use the “SinCo name, trademarks..., colors, and references for all...purposes, freely and without restrictions,” are only legal conclusions lacking any facts regarding specific conduct, time frame or identity of persons making and receiving the alleged offer, from which these ultimate conclusions, which must be disregarded by the Court. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) XingKe cites Paragraphs 60 and 61 as facts from which SinCo’s acceptance can be inferred. Paragraph 60 alleges, “Xingke China operated for years upon years as SinCo China....” Paragraph 61 alleges, Xingke China used its SinCo China name for more than ten years - from 2005 to 2017, all in accordance with its implied contract with Cross-Defendants.” These allege only very generalized statements about XingKe’s conduct, from which SinCo’s acceptance is not a reasonable inference. XingKe contends a contract is implied in Paragraphs 57, 63, 75 and 76. However, these paragraphs are similarly so general and conclusory that SinCo cannot possibly extract any definite terms. It bears repeating that an implied in fact contract requires just that - specific facts. A promise must be sufficiently definite for this Court to determine the scope of the duty; and the limits of performance must be sufficiently defined to provide some rational basis for the assessment of damages. (Civ. Code §1550; Ladas v Cal. Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) This claim does not even approach these pleading requirements. SinCo is at a loss to ascertain either the existence or terms of an actual agreement or the parties’ specific conduct from which an agreement must be inferred. 4826-1381-9583.1 -6- CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Breach of the Covenant of Good Faith Fails as Dependent on Breach of Implied Contract The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.) Where there is no underlying contract, there can be no duty of good faith arising from the implied covenant. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 819.) Here, the breach of the implied covenant claim fails since it is predicated on the breach of the implied in fact contract claim. C. Breach of Fiduciary Duty Fails to Allege Essential Elements There can be no fiduciary duty if there is no enforceable contract or other relation where a fiduciary duty is required. (Mosier v. Southern Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1044.) XingKe contends that the allegation that “[f]or a period of time, Mr. Lim was also a director and shareholder of XingKe,” is sufficient. This bare allegation is not enough to support a claim against Mr. Lim as it fails to allege any knowing undertaking. At Paragraph 102, this cause of action is also expressly premised on the alleged deficient implied contract, and all preceding allegations incorporated by reference, which are imprecise, vague, contradictory and uncertain as to parties’ legal relationships and alleged time period, e.g., “XingKe China operated for years upon years as Sinco...” ( 60), as to render this cause of action defective. D. Fraud Fails for Lack of Specificity and Not Within the Exception The fraud claim is predicated on the first cause of action for breach of implied contract, and fails for the same reasons. None of the Paragraphs quoted extensively by Xingke satisfies the required specificity for a fraud claim. (Civ. Code §1710 (3).) 4 None identifies a specific “false representation” that was purportedly “perpetuated” by Mr. Chee, or specifically when or in what manner the vague “false representation(s)” was made. Paragraph 172 states that SinCo possessed exclusive knowledge not known to [XingKe], namely the revenues, benefits, tax and other government advantages, and other monies.” SinCo does not believe this allegation fits the “ee XingKe’s Opposition to Demurrer, 7 - 11. CANES 7. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exception to the specificity requirement because it does not show that SinCo “necessarily possesses full information concerning the facts of the controversy” that XingKe does not. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.) E. Fifth Cause of Action for Negligence Fails to State a Cognizable Claim Against Bryan Lim XingKe’s opposition does not address the missing elements of a cognizable claim of negligence, other than to admit that it is premised on the first cause for breach of implied contract. F. Fraudulent Concealment Fails to State a Cognizable Claim XingKe does not oppose or even address the sixth cause of action for fraudulent concealment. It fails for the same reasons as the fraud claim fails. G. Conspiracy to Commit Fraud Not Pled with Particularity XingKe argues that the seventh cause of action states sufficient facts for a claim of conspiracy because the first through fourth and seventh causes of action state claims. However, this claim is not pled with any specificity. “Conspiracy” to “misappropriate” are pure legal conclusions, based on and incorporating the same defective allegations. H. Intentional Interference with Contractual Relations XingKe argues this claim sets for sufficient facts in that Paragraph 212 (XingKe labels as 213) alleges: Cross-Defendants knew of the existence of business relationships and agreements between Cross-Complainants and its own customers - independent of SinCo Singapore, including those in the United States. This went on for a period of more than ten years without any restriction, interference, or even concern communicated by anyone at SinCo, including Mr. Lim and Mr. Chee. (Exh. N, 39: 16 - 20.) Paragraph 213 alleges (XingKe labels as 214): Such customers. ..include: (a) Anesthesia, (b) Intel (c¢), Kee, and (d) Verizon. (Exh. N, 39: 21 - 22.) These allegations are insufficient to state a claim. They fail to allege any specific contractual relationship between XingKe and the three named companies, or how a relationship was interfered with or disrupted by SinCo, or the specific harm caused to the relationships 4826-1381-9583.1 _8- CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L Intentional Interference with Prospective Economic Advantage Although XingKe says this cause of action states sufficient facts, XingKe is mistaken. It fails to do so for the reasons discussed in the moving papers. In addition, is based on improper matter, i.e., “the initiation of this case” which is a protected communication under the litigation privilege, as discussed in the Motion to Strike. J. Business and Professions Code § 17200 Unfair Competition XingKe argues that SinCo’s alleged “scheme of portraying a unified ‘SinCo Group’ and misappropriation of XingKe’s revenue,” are sufficient. They are not. This cause of action fails to state a claim premised on any underlying predicate law. Further, XingKe impermissibly alleges that SinCo defrauded XingKe, a common law tort. III. XINGKE CONCEDES NO REASONABLE POSSIBILITY OF CURING DEFECTS AND IS ESTOPPED TO ARGUE OTHERWISE XingKe has not cured and admittedly cannot cure the serious and extensive defects of its Second Amended Cross-Complaint which were the subject of multiple written and telephonic meet and confer sessions over some seven months. (Decl. of J. Acheson; Exh. A -L.) In his meet and confer final letter of December 31, 2019, counsel for XingKe, Mr. York, stated: “...we believe that the revised Second Amended Cross-Complaint is proper and in final form... If it is still your position that the revised Second Amended Cross-Complaint is not proper, we now may be at an official impasse. We now have met and conferred in writing and orally several different times, and perhaps, it comes down to the fact that we see the issues differently.” (Decl. of J. Acheson; Exh. K; emp. added.) Xingke expressly concedes that it is unable to amend to conform to essential pleading requirements. SinCo acknowledges that to sustain a demurrer without leave to amend if there is a reasonable possibility the cross-complainant can amend the complaint to allege any cause of action 1s an abuse of discretion. (Smith v. State Farm Mut. Auto. Ins. Co. (2001) 93 Cal.App.4th 700, 711.) It is Cross-complainant’s “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) XingKe admits it cannot. XingKe is judicially estopped to argue that there is any reasonable possibility it can amend to state valid causes of action. Vis-a-vis the operative SACC, as set forth in detail in 4826-1381-9583.1 -9. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SinCo’s moving papers, at the urging of the Court, SinCo went above, beyond and to unusually extraordinary lengths to meaningfully meet and confer in good faith, precisely to avoid this demurrer (and companion motion to strike). In the parties’ final meet and confer telephone call on December 18, 2019, Mr. York indicated that he felt the causes of action were adequate, and in his confirming letter of December 31, 2019, conceded that the parties had reached impasse and there were no further revisions he could possibly make to the SACC to address SinCo’s objections. (Decl. of J. Acheson; Exh. K.) Mr. York affirmed his position that he could offer no further cures to his SACC by signing the Stipulation permitting XingKe to file its SACC, entered by Order of January 17, 2020. (Decl. of J. Acheson; Exh. M.) A complaint, or as here, a cross-complaint, shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. (C.C.P. §§430.41 (e) (1); 435.5 (e) (1).) 5 Here, XingKe has amended its Cross-Complaint twice, i.e., the FACC was filed on October 4, 2019 well after SinCo’s demurrer to the original Complaint was filed on August 2, 2019, or the same day XingKe’s Opposition to SinCo’s Demurrer was due as discussed in the moving party’s Procedural History. ¢ After 3.5 years of amended pleadings, extensive and expensive discovery, some 15 depositions, abundant written discovery, exchange of 2 million documents, and at least 5 informal discovery conferences, incredibly, XingKe alleges that it may need to amend yet again: “Cross-Defendants ... cannot know the extent of those actions/omissions until discovery has been conducted... Cross-Complainants will seek leave to amend this SACC to allege such further and additional unlawful actions/omissions when they become known to Cross-Complainants. (Exh. N (SACC), 12: 9 - 14; 54; emp. added.) Permitting yet another amended pleading is entirely futile by XingKe’s own concession. IV. CONCLUSION For all of the reasons set forth in SinCo’s Demurrer, and above Amended Reply, respectfully, SinCo asks the Court to sustain the Demurrer XingKe’s Second Amended Cross- 5 The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472 [Amendment of pleading as of course], if the amendment is made before a demurrer/motion to strike as to the original pleading is filed. (Id.) That was not the case here. idee, SipCa’s Memorandum of Points and Authorities in oT of SinCo’s Demurrer to SACC, 3:2 - 6. CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint without leave to amend. Dated: June 5, 2020 4826-1381-9583.1 Respectfully submitted, ROPERS MAJESKI PC By: TODD A. TS LXEL D. ANDARA JENNIFER E. ACHESON MARIO A. ISKANDER DANIEL E. GAITAN Attorneys for Plaintiff and Cross-Defendant SINCO TECHNOLOGIES PTE LTD “11 - CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS-COMPLAINT R O P E R S A Pr of es si on al Co rp or at io n R e d w o o d Ci ty M A J E S K K I AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NAME: SINCO TECHNOLOGIES PTE LTD V. XINGKE ELECTRONICS (DONGGUAN) CO., LTD., ET AL. ACTION NO.: 16CV301867 PROOF OF SERVICE METHOD OF SERVICE [J First Class Mail [1 Facsimile Cl Messenger Service CJ Overnight Delivery E-Mail/Electronic Delivery 1. At the time of service I was over 18 years of age and not a party to this action. 2. My business address is 1001 Marshall Street, Sth Floor, Redwood City, California 94063, County of San Mateo. 3. On June 5, 2020 I served the following documents: CROSS-DEFENDANT SINCO TECHNOLOGIES PTE LTD'S AMENDED REPLY IN SUPPORT OF ITS DEMURRER TO XINGKE’S SECOND AMENDED CROSS- COMPLAINT 4. Iserved the documents on the persons at the address below (along with their fax numbers and/or email addresses if service was by fax or email): Jeffrey C.P. Wang Edwin K. Prather Kathleen E. Alparce Prather Law Offices John Giust 245 Fifth Street, Suite 103 Michael York San Francisco, California 94103 Jessica Crabbe Email: edwin@pratherlawoffices.com WHGC, P.L.C. 1301 Dove Street, Suite 1050 Newport Beach, CA 92660 Email: JeffreyWang@whgclaw.com KathleenAlparce @whgclaw.com JohnGiust@whgclaw.com Michael Y ork @whgclaw.com JessicaCrabbe @whgclaw.com ElaineWu@WHGCLaw.com FrontDesk @ WHGCLaw.com 5. I'served the documents by the following means: a. J By United States mail: I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses specified in item 4 and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this ~Pusiness-sRyactice for collecting and processing correspondence for mailing. On the same day PROOF OF SERVICE A Pr of es si on al Co rp or at io n R O P E R S R e d w o o d Ci ty S E ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid at the address listed in Paragraph 2 above. b. O By overnight delivery: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 4. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. c. OO By messenger: I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them to a messenger for service. d. OO By fax transmission: Based on an agreement between the parties and in conformance with Rule 2.306, and/or as a courtesy, I faxed the documents to the persons at the fax numbers listed in item 4. No error was reported by the fax machine that [ used. A copy of the record of the fax transmission is attached. e. [0 By email or electronic transmission: Based on an agreement between the parties and/or as a courtesy, I sent the documents via my electronic service address (morgan.macnerland @ropers.com) to the persons at the email addresses listed in item 4. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. f By email or electronic transmission: In compliance with Code of Civil Procedure §1010.6, via my electronic business address (morgan.macnerland @ropers.com), I caused the document(s) listed above to be electronically served through One Legal for the above-entitled case upon the parties listed in item 4. The file transmission was reported as complete and a copy of the One Legal Receipt will be maintained in our case file. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Date: June 5, 2020 Yggau Mao sland Morgan MacNerland NG-V540IA9C:4852-4684-5375.1 -D PROOF OF SERVICE