Opposition Opposition To Plaintiffs Demurrer To Sang Bong Lees Crosscomplaint

Opposition

Cal. Super. - 2nd Dist.July 14, 2009

Electronically FILED by Sberior Court of California, County of Los Angeles on 03/12/2019 03:20 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 ANTON N. HANDAL, ESQ. (Bar No. 113812) tony.handal@gmlaw.com TODD J. LANGFORD, ESQ. (Bar No. 254517) todd.langford@gmlaw.com GREENSPOON MARDER LLP 401 West A Street, Suite 1150 San Diego, CA 92101 Tel: 619.544.6400 Fax: 619.696.0323 Attorneys for Defendant SANG BONG LEE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES STANLEY MOSK COURTHOUSE KOMIPHARM INTERNATIONAL CO., LTD., a Korean corporation, Plaintiff, Vv. BISSOX INCORPORATED, a California corporation; SANG BONG LEE, an individual; DEAN Y. PARK, an individual; STEVE HAN, an individual; BRYAN KIM, an individual; and DOES 1 through 10, inclusive, Defendants. AND ALL RELATED CROSS-ACTIONS. CASE NO.: BC417818 DEFENDANT SANG BONG LEE’S OPPOSITION TO PLAINTIFF KOMIPHARM INTERNATIONAL CO, LTD.S DEMURRER TO SANG BONG LEE’S CROSS-COMPLAINT Date: March 25, 2019 Time: 9:30 a.m. Dept.: 40 Judge: Hon. David Sotelo RESERVATION ID: 170602224061 OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 IL. INTRODUCTION Dr. Lee seeks to have a Korean judgment (“Korean Judgment”), as embodied in the Korean decisions referenced in Dr. Lee’s Cross-Complaint ( “Korean Decisions”) recognized and domesticated under its first cause of action. This is similar to Komipharm’s fourth cause of action in its First Amended Cross Complaint that seeks to recognize and domesticate an Australian Administrative Appeals and Tribunal’s Decision (“AAT Decision”). As discussed in further detail below, Komipharm’s Demurrer should be denied because: (1) the Korean Judgment does not contradict Dr. Lee’s claims, and in fact, supports his claims more so than the AAT Decision supports Komipharm’s claims; and (2) the Korean Judgment does not contradict Dr. Lee’s admissions and, in any event Dr. Lee’s admissions are not binding in Dr. Lee’s Cross-Complaint against Komipharm. II. FACTUAL BACKGROUND A dispute between Plaintiff Komipharm and Defendant Dr. Lee arose regarding intellectual property rights, include patent rights, for the use of sodium meta-arsenite as an anti-cancer compound, resulting in the filing of legal actions against Dr. Lee in multiple jurisdictions, including before this Court.’ Litigation in Korea resulted in a judgment that ruled the Three Party Agreement is null and void, but also contained equitable relief under Korean law declaring Dr. Lee a joint owner of the intellectual property arising from the Arsenic Project. (Joint Statement of Facts (“JSF”) at 5- 7.) While litigating these matters in South Korea, Komipharm and Dr. Lee were also disputing the ownership rights in Australian patent applications. (JSF at 5-8.) The AAT issued its AAT Decision dated November 18, 2011, which determined that the Three Party Agreement was null and void based upon the determination of a court in South Korea. The Australian Tribunal noted that “[s]hould the Supreme Court of Korea reverse the decision of the Seoul High Court, Dr Lee [sic] may then have rights to revisit his entitlement to be named as a patentee.” (JSF at 8.) The stay in this case was lifted in December 2016, after the Supreme Court of Korea issued ! The parties have submitted significant briefing to date, and thus Dr. Lee will provide an abbreviated background in its opposition. Further discussion of relevant facts and procedural history can be found in the briefing filed with respect to Dr. Lee’s Demurrer to Komipharm’s First Amended Cross-Complaint and Komipharm’s Motion for Summary Judgment. OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 its final opinion. On March 21, 2018, Komipharm filed a First Amended Cross-Complaint (FACC) that asserts causes of action for 1) declaratory relief that the Three Party Agreement is unenforceable, null and void due to the fraudulently inducement of Dr. Lee, 2) declaratory relief that Dr. Lee is not the exclusive owner of the Intellectual Property, 3) declaratory relief that Dr. Lee is not entitled to any profits derived from the Intellectual Property, and 4) domestication and recognition of a decision from the Australian Tribunal. Dr. Lee filed a demurrer to the FACC on April 20, 2018. Komipharm then filed a Motion for Summary Judgment on May 18, 2018. Dr. Lee filed a cross-complaint on October 5, 2018, asserting a single cause of action for recognition and domestication of the Korean Judgment. Komipharm filed a demurrer to Dr. Lee’s Cross-Complaint on October 16, 2018. The Court has yet to decide on Dr. Lee’s demurrer to the FACC or Komipharm’s Motion for Summary Judgement. III. KOMIPHARM’S DEMURRER SHOULD BE DENIED A. LEGAL STANDARD A demurrer will be sustained where the “pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(e). “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” C.A4. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. As long as there is a valid cause of action, a demurrer cannot stand. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1003 (A demurrer will be upheld “only if the complaint fails to state a cause of action under any possible legal theory.” (emphasis added)). Furthermore, a demurrer against a complaint will not be sustained solely because any attached exhibits contain legal conclusions that seem to conflict with facts alleged in the complaint. See Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal. App.4th 819, 823, n.5. B. THE KOREAN JUDGMENT DOES NOT CONTRADICT DR. LEE’S CLAIM Dr. Lee does seek recognition of the of the Korean Judgment as a valid and enforceable judgment, which ruled that Dr. Lee is a joint owner of certain intellectual property, specifically certain patent rights. The translation of the Korean Decision dated that November 26, 2015, does state that Dr. Lee is a joint owner of the patent right specified in attachment 1. (Ex. 6 at p. 4.) OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 However, this does not contradict that Dr. Lee is a joint owner of U.S. Pat. App. No. 10/967,357 (the “357 Application”). In other words the Korean Judgment does not state that Dr. Lee is not an owner of U.S. Pat. App. No. 10/967,357. Moreover, the Korean Decisions read in their entirety indicate that the Korean Courts determined that Dr. Lee is a joint owner of patent rights concerning the use of sodium meta-arsenite. The November 26, 2015 Korean Decision made a determination of ownership of rights in an invention, not necessarily limited to any specific patent. “At the time of the implicit agreement in this case, there was no registration of a patent regarding the invention specific to this case. [] In particular, the patent in this case is concerned with the medical use of the invention (salt of meta- arsenite, AsO2-) and its anti-cancer effect.” (Ex. 6 at p. 5.) “[I]t was uncertain at the time of the implicit agreement of whether the invention would be registered in the future.” Ibid. Based on the implicit agreement, the Korean judgment determined that Dr. Lee was a joint owner of the patent rights not limited to any specific patent. While the Korean courts used Korean Patent No. 0456831 as a reference for identifying the ownership of rights in an invention, the November 26, 2015 Korean Decision (and in fact, the other decisions in the chain of Korean decisions) cited and referred to many other patents and patent applications, including those that claim direct priority to PCT/NL02/00231. (See, e.g., Ex. 6 atp. 11.) Accordingly, the Korean judgment determined that Dr. Lee is a joint owner of patent rights concerning the use of sodium meta-arsenite. For example, the July 23, 2015 Korean Supreme Court Decision stated that: “it is consistent with empirical law that there was an implicit agreement even at the time of patent application by considering that the defendant company, which took over the right to obtain patent from Ben Rademaker, who is an inventor of the patent invention of this case, included the plaintiff as one of the patent applicants.” (Ex. 5 at p. 3.) However, Korean Patent No. 0456831 (which Komipharm asserts the Korean Judgment on joint ownership is limited to) does not list Ben Rademaker as an inventor or owner. (JSF at p.1, Ex. 2). The Korean Supreme Court then, necessarily, was referring to a patent ? The “357 Application claims priority to PCT/NL02/00231. OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 application other than Korean Patent No. 0456831. Therefore, the Korean Judgment on ownership rights of the subject patents, embodied by the Korean Decisions, refers to more than just Korean Patent No. 0456831 identified in attachment 1 of the November 26, 2015 Korean Decision. The fact that the Korean judgment does not explicitly reference the ‘357 Application is inapposite. The ‘357 Application claims priority to PCT/NL02/00231, which forms the basis of many of the patents and patent applications identified in the Korean Decisions. (JSF at p. 2; Ex. 6 at p. 11.) For example, in “Attachment 3” entitled “List of Patent Right [sic] in Each Designated Nation,” it refers to European Union Application No. EP 02722968 filed on November 10, 2004, which claims priority to PCT/NL02/00231. (JSF at p. 3; Ex. 6 at p. 11) Thus, while the ‘357 Application is not explicitly referenced in the Korean Decisions, it is nonetheless indirectly referenced through its common priority to the PCT/NL02/00231 application. Komipharm notes that the Korean Judgment fails to reference the ‘357 Application, even though the ‘357 Application was filed years before the any decision was first rendered by the Korean courts. (Opp. atp. 8.) Dr. Lee notes that the AAT Decision does not reference the ‘357 Application.” (JSF at 8, Ex. 35). The AAT Decision was rendered years after the filing of the ‘357 Application. Ibid. In fact, Komipharm is attempting to domesticate and recognize the AAT Decision as a basis of ownership in the same fashion that it now argues against with respect to Dr. Lee’s attempt to domesticate the Korean Judgment as a basis of ownership. “The Australian judgment, after Cross-Defendant Lee’s appeal, finally ruled that Cross-Defendant Lee has no ownership interest in the [357 Application] as an inventor because he made no material contributions to the [357 Application] and has no ownership interest in the [357 Application] under the Three Party Agreement because it is null and void.” 3 This is the “Australian Decision” that Komipharm is seeking domestication and recognition of in its FACC. * Pursuant to Komipharm’s responses to Dr. Lee’s Requests for Admissions, Set One, the “Intellectual Property” in dispute is limited to the ‘357 Application. See Dr. Lee’s Opp. to Komipharm’s Mot. for Summary Judgment, Langford Decl. at Ex. A, Req. for Admission No. 19. OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 FACC at 963. To the extent the Court is inclined to grant Komipharm’s Demurrer, then at least on the grounds of equity and the Court’s considerable discretion under the doctrine of comity, the Court should also grant Dr. Lee’s Demurrer to Komiharm’s fourth cause of action to domesticate the AAT Decision. See San Diego Cty. Dept of Soc. Servs. V. Norma M. (In re Stephanie M.) (1994) Cal. 4™ 295, 314. C, THE KOREAN JUDGMENT DOES NOT CONTRADICT DR. LEE’S ADMISSIONS Komipharm asserts that the Korean Judgment sought to be recognized and domesticated by Dr. Lee directly contradicts certain requests for admissions that were deemed admitted. This is simply not the case. As discussed above, the Korean Judgment determined that Dr. Lee is a joint owner of patent rights concerning the use of sodium meta-arsenite. None of the requests for admission admit that Dr. Lee is not a joint owner of the patent rights concerning the use of sodium meta-arsenite.” See Hammond Decl., 46, Exs. D-E (“RFA”). More specifically, none of the requests for admission admit that Dr. Lee did not obtain any ownership of the patent rights by way of an implied agreement. /bid. In fact, none of the requests for admission touch on an implied agreement between Dr. Lee, Mr. Yang, and/or Komipharm. /bid. The Korean Judgment does not contradict Dr. Lee’s Admissions. Furthermore, the Requests for Admissions deemed admitted constitute admissions against Dr. Lee only for Komipharm’s Cross-Complaint, and not for Dr. Lee’s Cross-Complaint against Komipharm. Section 2033, subdivision (c), of the Code of Civil Procedure provides that “[a]ny admission made by a party pursuant to such request is for the purpose of the pending action only and neither constitutes an admission by the party for any other purpose nor may be used against the party in any other action.” The California Supreme Court has held that a complaint and cross-complaint are separate actions. Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal. 3d 256, 260. The > A request for admission is preclusive only to the extent required by a literal reading of the request, and its scope and effect should be determined to accurately reflect the facts in light of other evidence. See Burch v. Gombos (2000) 82 Cal. App. 4th 352, 360. OPPOSITION TO DEMURRER EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENSPOON MARDER 401 WEST A STREET SUITE 1150 SAN DIEGO, CA 92101 TEL: 619.544.6400 FAX: 619.696.0323 RFAs were deemed admitted on October 26 and October 31, 2017. Dr. Lee’s Cross-Complaint was filed on October 5, 2018, well after the admissions were deemed admitted. In this action, there are two separate cross complaint’s constituting two separate actions.’ Accordingly, Dr. Lee’s admissions do not bar Dr. Lee’s action to recognize and domesticate the Korean Judgment. Komipharm’s arguments related to conflicting rulings and inconsistent judgments are not well founded. To a certain extent, as the Court is aware, there are already conflicting judgments between the Australian Tribunal and the Korean Courts. Ignoring the Korean Judgement (especially if Komipharm is allowed to proceed with its domestication and recognition of the AAT Decision) would continue the path of “inconsistent judgments which undermine the integrity of the judicial system.” People v. Barragan (2004) 2 Cal. 4™ 236, 254-255. Komipharm’s demurrer should be denied. IV. CONCLUSION For all of the foregoing reasons, and pursuant to the authorities cited herein, the Court is respectfully requested to deny Komipharm’s Demurrer to Dr. Lee’s Cross-Complaint.” Dated: March 12, 2019 GREENSPOON MARDER LLP Anton N. Hand Todd J. Langfor Attorneys for Defendants SANG BONG LEE %To look at it another way, Dr. Lee could have filed a separate action against Komipharm to domesticate the Korean Judgment. "If the Court is inclined to grant Komipharm’s Demurrer, Dr. Lee respectfully requests leave to file an amended cross-complaint. OPPOSITION TO DEMURRER