American Innovation Corporation vs. Raytheon Company

Opposition

Cal. Super. - 4th Dist.July 7, 2014

~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) EAST PALO ALTO ANDREW P. VALENTINE, SBN 162094 DLA PIPER LLP (US) 2000 University Avenue East Palo Alto, CA 94303-2214 Tel: 650.833.2000 Fax: 650.833.2001 KELLIN M. CHATFIELD, SBN 288389 DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101-4297 Tel: 619.699.2700 Fax: 619.699.2701 Attorneys for Defendants RAYTHEON COMPANY, TRS LLC US (fka THALES-RAYTHEON SYSTEMS COMPANY LLC), DAVID EARL STEPHENS, JAMES LEROY COTTERMAN, JR., and JAMES D. WEBER SUPERIOR COURT OF CALIF ELECTRONICALLY FILED Superior Court of California, County of Orange 09/02/2016 at 04:03:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk ORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER AMERICAN INNOVATION CORPORATION, a Wyoming corporation; NAGUI MANKARUSE, an individual, Plaintiff, Vv. RAYTHEON COMPANY, a Delaware corporation; THALES-RAYTHEON SYSTEMS COMPANY, a Delaware limited liability company; DAVID EARL STEPHENS, an individual; JAMES LEROY COTTERMAN, JR., an individual, JAMES D. WEBER, an individual; and DOES 1 through 100, inclusive, Defendants. CASE NO. 30-2014-00732670-CU-BC-CJC DEFENDANTS RAYTHEON COMPANY, TRS LLC US (fka THALES-RAYTHEON SYSTEMS COMPANY LLC), DAVID EARL STEPHENS, JAMES LEROY COTTERMAN, JR. AND JAMES D. WEBER’S OPPOSITION TO PLAINTIFF AMERICAN INNOVATION CORPORATION’S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed Concurrently with Declaration of Andrew P. Valentine] Date: Time: Dept: Judge: September 16, 2016 1:30 p.m. C11 Hon. Andrew P. Banks Complaint Filed: July 7, 2014 Trial Date: January 17, 2017 DEFENDANTS’ OPPOSITIO FOR LEAVE TO AMEND O N TO PLAINTIFF'S MOTION R WITHDRAW ADMISSION ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) EAST PALO ALTO II. III. IV. TABLE OF CONTENTS Page INTRODUCTION cities eee ete ee sates sates sabe eesabe ee sabe ee sabe ee ennes 1 RELEVANT BACKGROUND coos eesti esses saves 2 ARGUMENT .....e ee eee ees essa e esate ee sbbe ee sbbe ee bae eens 6 A. AIC Has Not Shown Mistake, Inadvertence, or Excusable Neglect....................... 7 B. Defendants Will Be Substantially Prejudiced by Amendment or WItRATAWa o.oo eee ees eee r tease are ae ee eane ae 9 C. If AIC is Allowed to Amend Its Admissions, Amendment Should Be Narrowly LIMITEd. .......cooiiiiiiiieeiiciieee cece c ce eren e eres 10 CONCLUSION cetteee ete eee sees sete sabt ee sabe ee sabe ee sabe ee sabe ee sabe eens 11 i DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) EAST PALO ALTO TABLE OF AUTHORITIES Page(s) CASES Burch v. Gombos 82 Cal. APP. 4th 352 (2002) «eee ieee eters etter st esate sateen teeta sabe ene anes 9,10 New Albertsons, Inc. v. Superior Court 168 Cal. App. 4th 1403 (2008) ...eveeiiieiieeiie etter eesti steerer e site sabe e sees steesbeeesbe anne esses saae eens 6 Solv-All v. Superior Court 131 Cal. App. 4th 1003 (2005) .eeeuvieiiieiieeiie eee eee ebe este estes sabe setae sees see saae eens 7 Transit Ads, Inc. v. Tanner Motor Livery, Ltd. 270 Cal. APP: 26 ZV CUDCD Von cusison is sumsnsn ssmsn onsmwsnss oes sass 5555045 5553575 5055555 545755558 SHR3 355-49 50555 6,7 Wilcox v. Birtwhistle 21 Cal. 4th 973 (1999) «eee eee eerste etter eset e saree erases esas ae eras ae ssss ae ssse ee sssaeans 6 Wimberly v. Derby Cycle Corp. 56 Cal. APP. 4th 618 (1997) eevee eee eters sb esate ates e ae saee sees 9 Zellerino v. Brown 298 Cal. App. 3d 1D] {1IV Niansus xmumnmonnsssiannonssssssoossseonsssmons m o m e (Hames 6 STATUTES Cal. Code Civ. P. § dee eee eee eee eee eee ee ee ee eres eset e essen seen sees snes seen anes enenan 6 Cal. Code Civ. P. § 473(D) .oeceieeeiie eee ee ete e etree star ee esas ee saae ee sabe ee ssse se ssse ee ssseeessseeensaees 6 Cal. Code Civ. P. § 2033.300.......cciiiiieeeiie cites eieeeeitee cites eae ee sae ee eases sass ee ssae ee ssseeessseessssessssseenns 6,7 Cal, Code Civ. P. § ZOBT IONE) «0550005 sus m,n in assists 255555550 55050850 857555 5085 A555 50555545 S555 S955555 2,6 Cal. Code Civ. P. § 2033.410() .vveeerrreaerieeiiie erie eiieee sees eieee saree ssseeessseeesssesesssesesssesssssesssssessnes 10 OTHER AUTHORITIES U.S. Patent NO. 6,411,512. .cciiiiiiie eee eects ee eee sere eee passim i1 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Defendants Raytheon Company, TRS LLC US (fka Thales-Raytheon Systems Company LLC) (collectively, “Raytheon’), David Earl Stephens, James L. Cotterman, Jr., and James D. Weber (collectively with “Raytheon” referred to as “Defendants”) respectfully submit this opposition to Plaintiff American Innovation Corporation’s (“AIC”) Motion for Leave to Amend or Withdraw Admission (the “Motion”), filed on August 9, 2016. L INTRODUCTION Responses to requests for admission, verified under oath, should not be taken lightly and should not be subject to amendment at a party’s whim, with every change in litigation strategy. AIC initiated the present lawsuit in July 2014 based upon alleged conduct that occurred during Mr. Mankaruse’s employment at Raytheon from 2004 to 2012. The original complaint asserted a single claim for breach of an alleged oral contract to license United States Patent No. 6,411,512 (the “512 patent”). Defendants served requests for admission (“RFAs”) on AIC in December 2014, seeking responses which would narrow the scope of issues at trial. In responses which were served and verified - under oath - over a year and a half ago, AIC admitted that the only claim it was asserting was for breach of oral contract, that it was not asserting a trade secrets claim, and that it was not asserting a claim based on conversion, misappropriation, or theft of any other technology, data, invention, or design. To justify amending its complaint to add entirely new claims based upon never-before- disclosed technology (which the Court allowed), AIC now seeks to change “admissions” into “denials” or some kind of qualified denials." AIC originally said it would bring this motion in the spring yet waited until August to file it. Now, after an unexcused delay, AIC seeks to erase its "It is not clear what Plaintiff AIC is seeking to do. It did not provide proposed or amended RFA responses as part of the meet and confer process and does not include proposed or amended RFA responses as part of its motion. 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prior admissions and wipe the slate clean. However, AIC has not established that the admissions were served as a result of mistake, inadvertence, or excusable neglect, nor has it shown that amendment or withdrawal at this late stage in the case would not be highly prejudicial to Defendants. Accordingly, AIC has not satisfied its burden under California Code of Civil Procedure Section 2033.300(b), and the Motion for Leave to Amend or Withdraw Admissions should be denied. At a minimum, AIC should not be allowed to withdraw its prior, sworn admissions wholesale. Any amendment should be narrowly tailored to the RFAs identified in the present motion and should not extend beyond the information contained in the e-mail attached to Mr. Mankaruse’s declaration, which AIC claims reflects the admissions it intended to serve. IL. RELEVANT BACKGROUND Defendants served the RFAs at issue on December 12, 2014. Declaration of Andrew P. Valentine in Support of Defendants’ Opposition to Plaintiff's Motion for Leave to Amend or Withdraw Admissions (“Valentine Decl.”), {2. The RFAs were served along with other discovery requests relating to AIC’s complaint for breach of alleged oral contract to license the ’512 patent, and sought to define the scope of the litigation. Id. Specifically, the RFAs sought to confirm that AIC’s complaint was limited to the factual allegations set forth in the breach of oral contract claim, and did not include factual allegations of alleged use of any other technical data, design, or invention. These RFAs were crucial because, since 2010, AIC and Mr. Mankaruse had filed multiple lawsuits and proceedings against Raytheon. Id. Given AIC and Mr. Mankaruse’s litigious nature with regard to Raytheon, it was important to limit the scope of the case and the issues to be litigated. The RFAs at issue in the instant motion were specifically intended to do so. On February 12, 2015 AIC served its response to Defendants’ RFAs, admitting that it did not have a claim against Defendants for use or misappropriation of trade secrets in any form. AIC responded to the relevant RFAs as follows: REQUEST FOR ADMISSION NO. 2: Admit that YOUR breach of oral contract claim is not for breach of a license to use 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) EAST PALO ALTO technical data other than use of U.S. Patent No. 6,411,512. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 5: Admit that, other than the invention claimed in U.S. Patent No. 6,411,512, YOU are not asserting a claim alleging that RAYTHEON used any other design or invention created by YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 6: Admit that, other than the invention claimed in U.S. Patent No. 6,411,512, YOU are not asserting a claim alleging that RAYTHEON used any other design or invention owned by YOU or assigned to YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 6: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 7: Admit that, other than the invention claimed in U.S. Patent No. 6,411,512, YOU are not asserting a claim alleging that RAYTHEON used any other design or invention created by YOU during the time in which you were employed by RAYTHEON. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 8: Admit that YOU are not asserting in the COMPLAINT that RAYTHEON has misappropriated any trade secret. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 13: Admit that any knowledge MANKARUSE has relating to RAYTHEON’s designs for its radar cooling systems for the FireFinder RMI Radar was learned while employed at RAYTHEON. RESPONSE TO REQUEST FOR ADMISSION NO. 13: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) EAST PALO ALTO REQUEST FOR ADMISSION NO. 14: Admit that any knowledge MANKARUSE has relating to RAYTHEON’s designs for its radar cooling systems for the Sentinel Improved Radar was learned while employed at RAYTHEON. RESPONSE TO REQUEST FOR ADMISSION NO. 14: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. REQUEST FOR ADMISSION NO. 15: Admit that any knowledge MANKARUSE has relating to RAYTHEON’s designs for its radar cooling systems for the Terminal High Altitude Area Defense Radar was learned while employed at RAYTHEON. RESPONSE TO REQUEST FOR ADMISSION NO. 15: Subject to the Preliminary Statement and General Objections above, AIC responds as follows: Admit. These responses to the RFAs were verified by Mr. Mankaruse under penalty of perjury. Importantly, yet contrary to the evidence Mr. Mankaruse puts before the Court in support of the instant motion, in the verification, Mr. Mankaruse affirmed on behalf of AIC, “I have read the foregoing RESPONSES TO REQUEST FOR ADMISSIONS and know its contents. . . . The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true.” (emphasis added.) The admissions were signed by Mr. Mankaruse and dated February 12, 13 Executedon 2//2- ,2015,at LoS Png lle / California. 14 [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 2015: 15 16 ad I/ 17 NAGUI MANKARUSE Defendants relied on these admissions, which they reasonably understood to be accurate, for more than eighteen months. Defendants have cited to these admissions in filings and at hearings before this Court. For example, Defendants cited to these admissions in their motion for summary judgment in this case, filed on November 24, 2015 (Dkt. No. 166) and in their 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition to Plaintiffs’ Motion for Leave to File a First Amended Complaint on May 20, 2016 (Dkt. No. 288). In part because of AIC’s representation to the Court that it would be moving for leave to change its responses, AIC was allowed to amend its complaint, thus mooting Defendants’ motion for summary judgment. While Defendants discussed the significance of AIC’s RFA admissions with its counsel as far back as the summer of 2015 (in the context of Raytheon’s impending motion for summary judgment), AIC did not raise any issue concerning the accuracy of its admissions until its reply to its motion for leave to file an amended complaint (May 27, 2016). Valentine Decl., |] 3, 5. It was not until August 9, 2016 that AIC sought leave from this Court to attempt to amend or withdraw its admissions to the RFAs (specifically as to Request Nos. 2, 5-8, and 13-15). AIC claims that the admissions were submitted in error by former counsel and that they “were clearly not Plaintiff AIC’s actual responses to such discovery requests.” Mot. at 3:24-25. Indeed, despite having verified the admissions under penalty of perjury, Mr. Mankaruse now concedes that he “honestly did not review the final responses” prepared by his former counsel, and that he “regret[s] not reviewing these responses because they were not correct.” Declaration of Nagui Mankaruse In Support of Plaintiff AIC’s Motion for Leave to Amend or Withdraw Admission (“Mankaruse Decl.”), {7. In support of its motion, AIC attaches copies of an e-mail sent by Mr. Mankaruse to his former counsel on February 9, 2015 (three days before he ultimately signed and verified the responses at issue). Mr. Mankaruse asserts that this communication includes “answers to Raytheon’s requests for admission, which were answered to the best of my knowledge at that time.” Mankaruse Decl., {| 3-4. While AIC claims that this e-mail to counsel evidences an intent by Mr. Mankaruse not to disclaim any trade secrets claim, the responses he provides in the e-mail do not mention a single “trade secret” and are at most equivocal as to the existence of any other claims. For example, in response to Request No. 2, Mr. Mankaruse responded, “[i]t is a breach of complete and clear oral contract to license the U.S. Patent 6,411,512 high performance cold plate and its patented technology, and applications supported by clear and convincing evidences . . . The breach of the oral contract claim is use of US Patent 6,411,512 High 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Performance Cold Plate Technology and its application as first presented in the conceptual design as presented to the team . . .” Mankaruse Decl., {4 (emphasis omitted.) In response to Request Nos. 5-7, Mr. Mankaruse responded “[w]e are not aware at this time of other illegal use of the US Patent 6,411,512 does not mean or exclude other illegal use of this patented [] technology and its application . . .” See id. (emphasis omitted.) These responses do not identify any of the alleged trade secrets that AIC now seeks to pursue. In fact, the responses in the e-mail to counsel relate only to US Patent No. 6,411,512, further supporting the admission that there is no other technology is at issue is accurate. III. ARGUMENT A party may amend or withdraw admissions only where the Court finds both that there was “mistake, inadvertence, or excusable neglect” and that “the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Cal. Code. Civ. Proc. § 2033.300(b) (“Section 2033.300”); see also Wilcox v. Birtwhistle, 21 Cal. 4th 973, 975 (1999); New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403, 1421 (2008)). Courts have recognized that a motion to amend or withdraw an admission under Section 2033.300 is to be assessed based on the same standard as relief from judgment under Code of Civil Procedure Section 473(b). See, e.g., Zellerino v. Brown, 235 Cal. App. 3d 1097, 1107 (1991) (noting that “the Legislature intended to incorporate the principles of section 473 into those provisions of the discovery act which employ similar language. . . .””); New Albertsons, 168 Cal. App. 4th at 1419 n.8 (“It appears that in borrowing language from section 473 . . . the Legislature intended that the same standard from that statute would apply to a motion to withdraw or amend an admission . . .”). Accordingly, AIC bears the burden of proving by a preponderance of evidence that it is entitled to the relief it now seeks. Transit Ads, Inc. v. Tanner Motor Livery, Ltd., 270 Cal. App. 2d 275, 279 (1969) (citing Luz v. Lopez, 55 Cal.2d 54, 62 (1960)). Here, AIC has not shown that the previously served admissions were the result of mistake, inadvertence, or 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 excusable neglect, nor can AIC show that Defendants will not be prejudiced by amendment or withdrawal at this late stage in the case. Accordingly, AIC’s motion should be denied. A. AIC Has Not Shown Mistake, Inadvertence, or Excusable Neglect AIC has failed to demonstrate that the admissions were the result of mistake, inadvertence, or excusable neglect, and therefore have not met its burden for amending or withdrawing the admissions under Section 2033.300. For an error to be excusable, it “must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances.” Transit Ads, Inc., 55 Cal. App. 2d at 279; Solv-All v. Superior Court, 131 Cal. App. 4th 1003, 1007 (2005). While AIC contends that “‘mistake, inadvertence or excusable neglect’ has been shown by the new facts discovered contradicting Plaintiff AIC’S [sic] earlier admission” (Mot. at 8:25), it does not identify the “new facts” to which it refers, nor does it explain how Mr. Mankaruse’s conduct constitutes excusable error. Indeed, while AIC claims that “it was discovered only recently that Raytheon’s designs for these devices had been used” (Mot. at 10:18-19), the motion does not identify a single newly discovered fact to support amendment or withdrawal. Rather, much like the FAC, the motion is based entirely upon a recasting of the events that occurred during Mr. Mankaruse’s employment at Raytheon, which terminated in 2012. Moreover, AIC fails to identify any “mistake.” While AIC claims that the February 9, 2015 e-mail from Mr. Mankaruse to former counsel evidence an intent to assert a trade secret claim, this simply is not the case. At most, this e-mail suggests Mr. Mankaruse’s uncertainty as to Raytheon’s use of the 512 patent. What it does not suggest is that he intended to assert a claim for misappropriation or use of trade secrets, or that he ever gave instructions to his counsel to do so. Indeed, the e-mail does not include even one mention of the “trade secrets” AIC now 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asserts, or the additional claims AIC now alleges.” Further, the responses cannot legally be the result of mistake, inadvertence or excusable neglect because Mr. Mankaruse verified the admissions under penalty of perjury. Indeed, he verified that he reviewed the admissions and that they were accurate. He cannot now claim that his alleged failure to review or correct the responses before they were served constitutes excusable error, as no reasonably prudent person would attest under oath to having reviewed a document’s contents when they had in fact not done so. The e-mail from Mr. Mankaruse to his former counsel (dated February 9, 2015) does not excuse his alleged false oath because he signed and verified the truth of the admissions three days later (on February 12, 2015). AIC does not explain what further communications Mr. Mankaruse may have had with his counsel between sending the e-mail and signing the admissions, or how any such communications would excuse his error had they occurred. And Mr. Mankaruse makes no attempt to explain why knowingly signing a verification of admissions that allegedly are not true constitutes a legal error, a mistake, or is in any way excusable. To the contrary, Mr. Mankaruse establishes that there was not a mistake with respect to signing the verification because he knowingly signed it. His alleged “mistake” is the fact that he did not read the responses. However, that was his election and is not excusable. The purpose of the verification requirement is to ensure that parties comply with discovery (reviewing and verifying the accuracy of responses) and to hold parties accountable for their responses. AIC’s delay in seeking amendment is also not excusable. AIC has been on notice of 2 On June 6, 2016, AIC served its First Amended Complaint (“FAC”). The FAC asserts claims that were previously not asserted, and that were in fact explicitly disclaimed in AIC’s responses to Request Nos. 2, 5-8, and 13-15 of Raytheon’s RFAs. In particular, the FAC asserts (1) breach of oral contract relating to alleged “Trade Secrets”; (2) breach of implied contract relating to the 512 patent and alleged Trade Secrets; (3) conversion of the alleged Trade Secrets; and (4) fraud and deceit relating to the *512 patent and alleged Trade Secrets. It is telling that it is only after serving the FAC that AIC seeks to amend or withdraw the admission in which it disclaimed the very causes of action it now alleges. See Dkt. No. 308. DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raytheon’s reliance on these specific admissions for at least nine months, when Raytheon filed its motion for summary judgment on November 24, 2015. Dkt. No. 166. Further, upon learning that AIC had filed but not served a motion to amend (later withdrawn), counsel for Raytheon sent counsel for AIC correspondence specifically pointing out the legal impact of AIC’s admissions. Valentine Decl., 4. Notwithstanding, AIC did not suggest any intent to amend these admissions until counsel raised it after an ex parte hearing on May 19, 2016, and shortly thereafter expressed a desire to do so in its reply brief to AIC’s motion for leave to file an amended complaint (filed on May 27, 2016). Id. at {5. Even still, AIC waited over two more months before filing the present motion. And, AIC still has not provided (to Defendants or the Court) any indication as to what the proposed amendments would be. Id. at 6. B. Defendants Will Be Substantially Prejudiced by Amendment or Withdrawal AIC also fails to show that Defendants will not be prejudiced by the amendment or withdrawal it now seeks. RFAs serve an important function in litigation, and permitting AIC to amend or withdraw its admissions at this late stage in the case would both vitiate the very purpose of this discovery procedure and substantially prejudice Defendants. While AIC presumes that Defendants will not be prejudiced because “trial is not scheduled until January 2017 and Responses to requests Nos. 2, 5-8, and 13-15 are clearly untrue” (Mot. at 8:26-27), they are incorrect. It is well-established that RFAs serve a different purpose than other discovery procedures. Courts have recognized that “although the principal aim of discovery procedures in general is to assist counsel to prepare for trial, requests for admission are conceived for the purpose of setting to rest triable issues in the interest of expediting trial.” Wimberly v. Derby Cycle Corp., 56 Cal. App. 4th 618, 634 (1997). Indeed, an RFA “is not a discovery device. Its objective is the same as that of a pretrial conference: [t]o obtain admissions of uncontroverted facts learned through other discovery methods, and thereby to narrow the issues and save the time and expense of preparing for unnecessary proof.” Burch v. Gombos, 82 Cal. App. 4th 352, 358-59 (2002) (quoting 2 Witkin, Evidence (3d ed. 1986) § 1553) 9 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (emphasis in original). Thus, a matter admitted in response to an RFA is “conclusively established against the party making the admission . ..” Id. (citation omitted); Cal. Code Civ. Proc. § 2033.410(a)). Here, the admissions in question were served in February 2015, more than eighteen months ago. For well over a year, Defendants have reasonably relied on the content of these admissions, and have cited them repeatedly in filings and hearings before this Court. Although AIC’s admissions have been at the forefront of the lawsuit and although it had months to do so, AIC did not indicate either that the admissions were served in error, or that they had any intent to amend or withdraw the admissions until very recently. If AIC is permitted to do so at this late stage in the case, the result will require significant additional time and expense, will be judicially inefficient, and will substantially prejudice Defendants. C. If AIC is Allowed to Amend Its Admissions, Amendment Should Be Narrowly Limited Should this Court find that AIC has satisfied its burden of showing both that there was “mistake, inadvertence, or excusable neglect” and that “the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits,” AIC should be allowed only to amend (and not to withdraw) its admissions. Furthermore, any amendment should be narrowly limited. While AIC has yet to serve a proposed amendment or to otherwise indicate how it seeks to amend its admissions, AIC should not be permitted to make statements under penalty of perjury only to recant them in their entirety at a later date. Nor should AIC be allowed to amend admissions for which it has failed to show any “mistake” or miscommunication with counsel. Any amendment, therefore, should be limited to those admissions identified in AIC’s motion (specifically, Request Nos. 2, 5-8, and 13-15), and the amended responses should conform with those identified in the February 9, 2015 e-mail from Mr. Mankaruse to his former counsel. In other words, AIC should not be allowed to amend its responses beyond what was allegedly communicated to counsel. Moreover, Mr. Mankaruse’s alleged failure to review the admissions despite having 10 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA PIPER LLP (US) EAST PALO ALTO ~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 verified their accuracy under penalty of perjury reflects directly on his credibility, and it is crucial that Defendants be permitted to cross-examine him as to these admissions at trial. If AIC’s amended claims survive to trial, Defendants should be able to question Mr. Mankaruse about his failure to recall any alleged trade secret claim in his prior discovery responses, and his statement under penalty of perjury that he had read AIC’s responses (but had not) and that he believed the responses to be true (but now disclaims). AIC should not be allowed to proceed before this Court or before a jury as though it never gave sworn responses that contradicted its present position. IV. CONCLUSION For the foregoing reasons, Plaintiff AIC’s Motion for Leave to Amend or Withdraw Admission should be denied. The instant motion is yet another attempt by Plaintiffs AIC and Mr. Mankaruse to prejudice Defendants and to delay resolution of this case, a strategy which should not be condoned by the Court. Dated: September 2, 2016 DLA PIPER TT P (TTS) By OVW ANDREW VALENTINE KELLIN M. CHATFIELD Attorneys for Defendants Raytheon Company, TRS LLC US (tka Thales-Raytheon Systems Company LLC), David Earl Stephens, James Leroy Cotterman, Jr., and James D. Weber 11 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION DLA Piper LLP (US) EAST PALO ALTO A W OO 0 NN O y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 28 PROOF OF SERVICE I am employed in the County of San Mateo, State of California. Iam over the age of 18 and not a party to the within action; my business address is 401 B Street, Suite 1700, San Diego, California 92101-4297. On September 2, 2016, [ served the documents described as: DEFENDANTS RAYTHEON COMPANY, TRS LLC US (fka THALES-RAYTHEON SYSTEMS COMPANY LLC), DAVID EARL STEPHENS, JAMES LEROY COTTERMAN, JR. AND JAMES D. WEBER’S OPPOSITION TO PLAINTIFF AMERICAN INNOVATION CORPORATION’S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF and DECLARATION OF ANDREW P. VALENTINE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION on the interested parties in this action by placing [] the original [J a true copy thereof enclosed in sealed envelopes [X as follows [] as stated on the mailing list below: Allan E. Perry, Esq. Nagui Mankaruse Allan E. Perry, Professional Corporation 7775 Starshell Drive 242 South Orange Avenue Huntington Beach, CA 92648 Tel: 714.580.3777 Brea, CA 92821 Plaintiff Nagui Mankaruse, in pro per Tel: 714.529.7000 Counsel for Plaintiff American Innovation Corporation (BY ELECTRONIC SERVICE) I served the document(s) on the person(s) listed above by submitting an electronic version of the document to One Legal, LLC, through the user interface at www.onelegal.com. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 2, 2016, at San Diego, California. Bonnie K. Lott 12 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND OR WITHDRAW ADMISSION