This is a misappropriation of trade secrets case ? similar to plaintiff?s earlier patent litigation in federal court.? Here, plaintiff (in pro per) alleges that he is an engineer, inventor and owner of a US Patent for a computer cooling system?? According to plaintiff, he pitched his invention to Intel, but Intel was not interested.? Years later, plaintiff discovered that various companies were using a cooling system similar to what he invented.? The following averment sums it up nicely:
?[Intel] signed the Intel Corporation Non-Disclosure Agreement (CNDA) with [plaintiff] before [he] revealed and disclosed the Trade Secrets technologies and Intellectual Property (the Know-How) for cooling the Computer Center Processor Unit CPU and the CPU Cooler to Intel on and around 2004 ? Acer used and is using Intel high speed CPUs in its Products that is cooled by the Intel misappropriated and stolen Delta CPU Cooler. Acer by doing that must use Delta Trade Secrets technologies and Intellectual Property in order for the high speed high heat dissipation Intel CPUs to function.?? TAC Para 5.
The operative pleading is the Third Amended Complaint.? It contains eight (8) causes of action.? Defendants demur to all of the causes of action, mostly on statute of limitations grounds.? This is the third time the parties are here dueling over the operative pleading.? As was the case with earlier iterations, the operative pleading is sometimes hard to follow and syntaxically challenged.
Statute of Limitations
A demurrer on the ground of the bar of statute of limitations will not lie where the action may be, but is not necessarily, barred.? It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is unquestionably tardy.? This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense.??Committee for Green Foothills v. Santa Clara County Board of Supervisors?(2010) 48 Cal.4th?32, 42;?May v. City of Milpitas?(2013) 217 Cal.App.4th?1307, 1324.
Defendants contend once again that each cause of action accrued no later than April 2012, which makes the October 2016 filing too late for the claims.? The accrual argument stems from the following key averments contained in the Second Amended Complaint, but since modified in the new Third Amended Complaint:
- ?All until April 27, 2012, Plaintiff Nagui Mankaruse, thought a follow up with Paul S. Otellini, Intel CEO and President at that time by sending him a detailed letter asking him to intervene and solve the conspiracy issues of Intel during the US ?512 Patent Infringement Case ATI vs. Fifteen companies including VMI and AFTC in which INTEL was NOT a party of that lawsuit. In the same letter Nagui Mankaruse was following up on INTEL and Delta encounters of 2004 and 2007 and whether INTEL was an indirect infringer on the ?512 US Patent with using language as If he actually knows that Intel is using the US Patent ?512 technologies in fact.?? SAC Para 17.
- ?Plaintiff Nagui Mankaruse from 2010 believed that the fifteen computer Companies defendants in the case American Technology Incorporated (ATI) v. Altima Computers Inc. et al are infringing the US Patent 6,411,512. Case No. 6:10-cv-488-orl-22GJK, filed in the Federal District Court in the Central District of Florida. During that time unfortunately ATI Attorneys were compromised by Intel money in the litigation. There were incidents that Nagui Mankaruse found out conspiracy and fraud by VMI and AFTC (the last two defendants in the case), but they were not able to do it because Nagui Mankaruse was careful and usually had advanced knowledge of such wrongdoing.?? SAC Para 22.
- ?In and around January 23, 2015, in normal life setting Plaintiff Nagui Mankaruse use Amazon to check and buy merchandize from books to many different items, and many times surf Amazon website to check the price first before buying from somebody else. That time was in around the last week of January Nagui Mankaruse was surfing the web at Amazon, usually Amazon suggest and promote different merchandise, the Intel CPU Cooler pop up in Amazon website, Nagui Mankaruse out of curiosity looked at it particularly it has cheap price, apparently it was on sale for some reason. Nagui Mankaruse, made the online order, and it was delivered by mail few days later in and around February 3, 2015.? Nagui Mankaruse examined the purchased Intel CPU Cooler, found that it is the Device used the technologies disclosed to Intel in 2004, and 2007. At that time it was apparent and clear without any doubt that Intel and its executives were lying all along from 2004 until today. Nagui Mankaruse after that ordered several units of this devise from Amazon through 2015 and are available, and they are available to him until today (documented).? SAC Para 24-25.
In the new operative pleading, plaintiff includes the following averments:
- ?In and around January 23, 2015 was the first time Plaintiff Nagui Mankaruse to become suspicious of Intel have might have Misappropriated Delta CPU Cooler trade secrets technologies and Intellectual Property. While he was surfing the web to buy an item from Amazon.com he was in the process of making an Order of an item non-related to the item he was about to Order, few items non-related came on that page (Amazon advertising) one of them was CPU Cooler for Intel CPU, the very cheap price of this CPU Cooler took coupled with name of the item got the plaintiff?s attention. Plaintiff Ordered one unit he received on and around February3, 2015. The Plaintiff examined the CPU Cooler he received from Amazon and found out that the CPU Cooler has Intel Logo on it and used the Delta Trade Secrets technologies and Intellectual Property disclosed to Intel in 2004 and 2007. It was the first time the Plaintiff has an evidence indicate the date and time he knew of Intel involvement in the Misappropriation of the Delta CPU Cooler technologies and Intellectual Property disclosed to Intel in 2004 and 2007. (Documented)?? TAC Para 25.
- ?Nagui Mankaruse was always doing continuous Due Diligence, searching the web to find a respectable company to license the Trade Secrets technologies and Intellectual Property among other inventions before and after 2004. After the conclusion of the encounter between Nagui Mankaruse and Intel Corporation that ended without successful cooperation between DeltaEngineers and Intel in 2004 the search for a licensee was continuous. The search using different means including using Google Search Alert that Google sends email alerts almost daily alert emails of any information about CPU Cooler produced or come to the market with pictures and most often with videos. Search words include ?CPU Cooler, CPU, Heat Pipe,….). Plaintiff also was sending direct emails inquiring about Computer Mother Boards with CPU and CPU Coolers started getting general results for CPU Coolers later in around 2008 and beyond (NO CPU Coolers had Intel Logo came from any of the searches like the one has a receipt picture in here and the several others purchased from Amazon website on 2015 and its receipts are in Attachment No. 2 here).?? TAC Para 26.
In addition to these averments, plaintiff has attached to his opposition for this Court?s consideration letters from 2012 he claims support his ?delayed discovery? theory when in fact those writings ? which this Court takes judicial notice of ? demonstrate that plaintiff was suspicious of trade mark and patent infringement by Intel and others back in 2012.? See, e.g., Exhibit 9 to the opposition.
The general rule for defining the accrual of a cause of action sets the date as the time when, under the substantive law, the wrongful act is done, or the wrongful result occurs, and the consequent liability arises.? In other words, it sets the date as the time when the cause of action is complete with all of its elements ? the elements being generically referred to by sets of terms such as wrongdoing or wrongful conduct. ?Norgart v. Upjohn Co.?(1999) 21 Cal.4th383, 397;?K.J. v. Arcadia Unified School District?(2009) 172 Cal.App.4th?1229, 1239.? Here, plaintiff admits that he was suspicious of Intel back in 2010, and voiced that concern in May of 2012, but did not act upon that suspicion until October of 2016 when he filed suit.? There is no question that plaintiff was suspicious of wrongdoing, but the question is whether there was enough knowledge to enable plaintiff to file suit.? Courts look to whether the plaintiff has reason to at least suspect that a type of wrongdoing has injured him.??Fox v. Ethicon Endo?Surgery, Inc.?(2005) 35 Cal.4th?797, 807;?S.M. v. Los Angeles Unified School District?(2010) 184 Cal.App.4th?712, 717.? There is no question that plaintiff was suspicious of Intel more than three years prior to filing suit.
According to plaintiff, he had no reason to sue Intel until discovering in late 2015 that Intel was actually selling units with the infringing cooling system.? The clear inference is that plaintiff had no ability to make discovery earlier because Intel was not using the cooling system in 2012, 2013, or 2014.? However, plaintiff?s federal lawsuit in 2010 assumed use of the cooling systems.? Even though Intel was not a party to that lawsuit, its potential wrongdoing was on point.
This now being the third time plaintiff has attempted to plead around the statute of limitations, without success.? There is no reason to believe plaintiff will cure this, and to date his efforts were null due to the sham pleading doctrine revitalizing omitted averments.
Other Defects Not Cured
1st?COA:? Plaintiff has not identified a trade secret ? only a patent which is already public knowledge.
2nd?and 3rd?COA:? The breach of contract causes of action involve a contract between Intel and Delta Engineers, not plaintiff.
4th, 5th?and 7th?COA:? The claims for fraud, fiduciary duty and unfair practices are preempted by Civil Code ?3426.7.? See?Silvaco Data Systems v. Intel Corp.?(2010) 184 Cal.App.4th?210, 241-244;?K.C. Multimedia, Inc. v. Bank of America?(2009) 171 Cal.App.4th?939, 953; in accord,?SunPower Corp. v. SolarCity Corp., WL 6160472 at *12 (N.D. Cal. 2012).
6th?COA:? As a matter of law, outside the context of first-party insurance coverage, the implied covenant of good faith and fair dealing is not a stand-alone cause of action.??Bionghi v. Metropolitan Water Dist. of So Cal.?(1999) 70 Cal.App.4th?1358, 1370; in accord,?Avidity Partners, LLC v. State?(2013) 221 Cal.App.4th?1180, 1203.
8th?COA:? As a matter of law, there is no stand-alone cause of action called ?conspiracy.???Stueve Bros. Farms, Inc. v. Berger Kahn?(2013) 222 Cal.App.4th?303, 323-324;?Arei II Cases(2013) 216 Cal.App.4th?1004, 1022.
Demurrer SUSTAINED WITHOUT LEAVE TO AMEND.
Moving party to give notice.