Case Number: BC417818 Hearing Date: March 01, 2018 Dept: 46

Case Number: BC417818
KOMIPHARM INTERNATIONAL CO LTD VS BISSOX INCORPORATED ET AL

Filing Date: 07/14/2009
Case Type: Other Commercial/Business Tort

03/01/2018
Motion for Leave

TENTATIVE RULING

Notice on the motion is deemed sufficient. Motion for Leave to File a First Amended and Supplemental Cross-Complaint (“FACC”) is GRANTED pursuant to CCP §473 and §464. The First Amended and Supplemental Cross-Complaint is deemed served upon Cross-Defendant Lee as of the date of this hearing, 3/1/2018. Komipharm International Co., Inc. is ordered to file a free-standing copy of the First Amended And Supplement Cross-Complaint within 5 days and serve it upon Cross-Defendants. See discussion.

Arguments

The proposed FACC supplements and updates the facts and COAs to take into account developments that have occurred since the original 11/3/09 Cross-Complaint (“XC”) was filed; specifically, three foreign courts have now entered judgments relating to intellectual property that is the subject of Plaintiff’s declaratory relief claims. The German judgment has been stayed and is thus not final. The Korean judgment discusses certain equitable principles under Korean law that conflict with U.S. Patent law. Australia’s judgment is the only one that is final and does not include any aspects which conflict with U.S. Patent law principles and is otherwise appropriate for recognition. This judgment already ruled on the first two issues in the 11/3/09 XC. P seeks to add a claim recognizing and domesticating the Australian judgment. Lee will not suffer any prejudice by the FACC, because the Australian judgment relates directly to the core issues in P/X-D/X-Complainant’s declaratory relief claims and Lee fully participated in the Australian proceedings. Domestication of the Australian judgment, moreover, will limit, and possibly eliminate the need to bring in numerous witnesses from outside the U.S. to testify or have numerous documents translated. P/X-D-X-Complainant intends to dismiss all of the claims asserted in its original complaint as well as dismiss Park, such that the court will thereafter be left with only two parties and one core issue left to be resolved.

At the outset, P/X-D/X-Complainant’s motion reflects insufficient CCP §1005(b) notice. The motion was filed 2/7/18 and personally served on 2/6/18; however, due to the 2/12/18 and 2/19/18 court holidays, both the filing and personal service should have occurred no later than 2/5/18. With that said, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930. Lee has opposed the motion on the merits. The court, then, elects to rule upon the merits of the motion.

“The plaintiff and defendant, respectively, may be allowed, on motion to take a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. CCP § 464(a). Also, “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); and see § 576. A motion for leave to amend must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where (by page, paragraph and line number) the deleted allegations are located, and (3) state what allegations are proposed to be added to the previous pleading, if any, and where (by page, paragraph, and line number) the additional allegations are located. California Rules of Court (“CRC”) Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Even if the motion is unreasonably delayed, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.

P/X-D/X-Complainant’s motion reflects sufficient compliance with CRC Rule 3.1324. P/X-D/X-Complainant’s counsel explains that “Komipharm and Dr. Lee have been parties to certain foreign proceedings in judgments were entered, including proceedings in South Korea, Germany, and Australia…The Australian Proceeding concluded Lee: (1) Lee is not entitled to be recognized as an inventor, because Lee made no material contribution to the intellectual property, and (2) Lee has no ownership interest in the intellectual property under the Three Party Agreement, the only other claim for ownership, because that agreement is null and void as determined in the Korean Proceeding. The Australian Proceeding is final (i.e., not stayed for any reason) and does not include any aspects that would run afoul of U.S. Patent law. As such, Komipharm seeks to have the final ruling of the Australian Proceeding (the Australian Judgment”) recognized and domesticated by this Court.” (Strabo Decl., ¶ 4).

Lee, moreover, cannot articulate any real prejudice, inasmuch as he was an active participant in the Australia lawsuit. This case was stayed from 9/3/10-12/15/16. Any discovery related to the enforceability of the Australia lawsuit will not be complex. Trial is set for 9/19/18.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge