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19CV349042
Santa Clara — Civil
System S:
Electronically Filed
Stephen H. Sutro (SBN 172168) F
Suzanne R. Fogarty (SBN 154319) py ae Court of CA,
Meghan C. Killian (SBN 310195) ounty of Santa Clara,
Duane Morris LLP on 3/1/2021 5:04 PM
One Market Plaza Reviewed By: System System
Spear Tower, Suite 2200 Case #19CV349042
San Francisco, CA 94105 Envelope: 5939104
Tel: 415.957.3000
Fax: 415.957.3001
E-mail: SHSutro@DuaneMorris.com
SRFogarty@DuaneMorris.com
MCKillian@DuaneMorris.com
Brad Thompson (admitted pro hac vice)
Bert Greene (admitted pro hac vice)
Duane Morris LLP
Las Cimas IV
900 S. Capital of Texas Hwy., Suite 300
Austin, TX 78746-5435
Tel: 512.277.2300
Fax: 512.277.2301
E-mail: | BThompson@DuaneMorris.com
BGreene@DuaneMorris.com
Attorneys for Plaintiff,
SUNPOWER CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
SUNPOWER CORPORATION, Case No. 19CV349042
Plaintiff,
NOTICE OF ENTRY OF ORDER
v.
Dept.: 21
MARTIN DEBONO, STANDARD INDUSTRIES
INC., GAF ENERGY; and DOES 1-100, Complaint Filed: June 14, 2019
Defendants.
stem
NOTICE OF ENTRY OF ORDER, Case No. 19CV349042TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that, on February 25, 2021, the Court signed and entered the
attached Order Granting SunPower Corporation’s Motion to Compel Discovery. A true and correct
copy of the Order signed by the Court, is attached hereto as Exhibit A.
Dated: March 1, 2021
DUANE MORRIS LLP
By:__/s/ Suzanne R. Fogarty
Stephen H. Sutro (SBN 172168)
Suzanne R. Fogarty (SBN 154319)
Attorneys for Plaintiff,
SunPower Corporation
2
DM1N11836364.1
NOTICE OF ENTRY OF ORDER, Case No. 19CV349042SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
SUNPOWER CORPORATION, Case No. 19CV349042
Plaintiff,
ORDER RE: DISCOVERY MOTION
vs.
MARTIN DEBONO, et al.,
Defendants,
The motion by plaintiff SunPower Corporation (“SunPower”) for an order (1) confirming
that its second amended trade secret designation, served June 3, 2020, satisfies Code of Civil
Procedure section 2019.210 and that discovery is not stayed and (2) compelling defendant
Standard Industries, Inc. (“Standard”) to provide further responses to requests for admission, set
one (“RFA”), form interrogatories, set one (“FI”), special interrogatories, set one (“SI”), and
requests for production of documents, set one (“RPD”), and produce documents in accordance
with its further responses came on for hearing before the Honorable Thang N. Barrett on
November 24, 2020, and on December 17, 2020 in Department 21. Having taken the matter
under submission on December 17, 2020, the Court now finds and orders as follows:Factual and Procedural Background
This action arises out of defendant Martin DeBono’s (“DeBono”) alleged
misappropriation of SunPower’s proprietary information and trade secrets. (SAC, { 1.)
According to the allegations of the operative SAC, DeBono was SunPower’s Executive Vice
President of Global Channels and responsible for SunPower’s rooftop solar business. (dd. at {ff 1
& 25.) When he started at SunPower, DeBono signed a non-disclosure agreement whereby he
agreed to safeguard SunPower’s confidential information and work exclusively for SunPower
during his employment. (Jd. at § 92.) DeBono later signed an employment agreement, in which
he agreed not to actively engage in any other employment without his supervisor’s prior
approval. (/d. at | 93.)
While he was still employed with SunPower, DeBono began covertly working for
Standard. (SAC, {3 & 47.) Specifically, DeBono drafted materials and a PowerPoint
presentation related to how Standard could take over the integrated rooftop solar market,
forwarded proprietary and confidential emails to a private email account, and uploaded over
1,700 SunPower files to a private OneDrive account. (/d. at {J 2-6, 48-54, & 58-60.) The emails
contained confidential guidance to SunPower’s sales team “on how to explain in detail to
prospective and existing customers why SunPower’s solar offerings are better than the
competition,” “a roadmap on different ways to differentiate and distinguish the competition,
often through use of technical and product testing data,” and “confidential and proprietary
information about SunPower’s sales strategy approach and execution.” (Id. at J] 4 & 48.) The
files uploaded to the OneDrive account contained “confidential technical information regarding
9&6,
SunPower’s research and development of products and technology,” “a confidential analysis of
different ways to differentiate and distinguish the competition, often through use of technical and
product testing data,” and “proprietary, confidential, and trade secret information about
SunPower’s sales strategy approach and execution, product development, market analysis, dealer
relationships, and strategic initiatives.” (Id. at J] 6 & 58-60.)
When DeBono left SunPower on April 6, 2018, he entered into a separation agreement
whereby he agreed to return all SunPower files and documents, not use any confidential and/orproprietary information for the benefit of any third party, and not solicit SunPower employees
for one year. (SAC, Ff 2 & 94-97.)
However, DeBono allegedly left “with over 1,700 SunPower files providing a roadmap
on how to build a successful solar business.” (SAC, § 2.) “These files included hundreds of
SunPower confidential and proprietary documents ....” (Jbid.)
In May 2018, DeBono joined Standard as an Executive Vice President, Head of Solar.
(SAC, 25.) DeBono later became president of defendant GAF Energy LLC (“GAF Energy”),
Standard’s new rooftop solar division. (Id. at JJ 1 & 25.) “DeBono immediately began using
SunPower’s confidential information to solicit and target other SunPower employees for hiring
by Standard to build its new rooftop solar division, GAF Energy.” (/d. at {fj 2, 8-9, & 64.)
DeBono allegedly stole SunPower’s proprietary information and trade secrets to help Standard
and GAF Energy “leapfrog past years of work needed to develop and market an integrated
rooftop solar product.” (/d. at ff] 1, 9-11, 43-44, & 65-66.)
Based on the foregoing allegations, SunPower filed the operative SAC against DeBono,
Standard, and GAF Energy (collectively, “Defendants”) on February 24, 2020. The SAC alleges
causes of action for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach
of duty of loyalty; and (4) violation of Penal Code section 502.
Discovery Dispute
In June 2019, SunPower served Defendants with a trade secret designation pursuant to
Code of Civil Procedure section 2019.210. Therein, SunPower identified its trade secrets
allegedly misappropriated by Defendants as:
1. The SunPower files listed on Exhibit 1 the May 30, 2019 report entitled
“Martin DeBono OneDrive Data Collection” prepared by Kivu Consulting, Inc.
(“Kivu”), and any information derived, modified, or copied therefrom. [...]
2. The 61 internal SunPower emails authored by Cole Peyton that Mr.
DeBono emailed to his personal live.com email account on October 31, 2017,
and any information derived, modified, or copied therefrom. [...]In early July 2019, SunPower served Standard with the RFA, FI, SI, and RPD.
Thereafter, counsel for the parties met and conferred regarding SunPower’s pending
discovery and the sufficiency of SunPower’s trade secret designation. Specifically, Standard and
GAF Energy asserted that SunPower’s trade secret disclosure was inadequate. Despite these
meet and confer efforts, counsel for the parties were unable to informally resolve the discovery
dispute.
In mid-July 2019, Standard and GAF Energy filed a motion to quash discovery and for an
order barring further discovery until SunPower provided an adequate trade secret designation
under Code of Civil Procedure section 2019,.210.
In early August 2019, Standard served SunPower with objection-only responses to the
RFA, FI, SI, and RPD. Standard objected to the discovery requests on numerous grounds,
including that SunPower had not provided a trade secret designation in compliance with Code of
Civil Procedure section 2019.210.
Standard and GAF Energy’s motion proceeded to hearing on September 10, 2019. At the
hearing, the court (Hon. Mark H. Pierce) adopted its uncontested tentative ruling, which denied
the motion to the extent it sought to quash the RFA, FI, SI, RPD and granted the motion to the
extent it sought to stay discovery with respect to the claim for trade secret misappropriation until
SunPower served an adequate trade secret disclosure under Code of Civil Procedure section
2019.210. The court ordered SunPower to serve Defendants with an amended trade secret
disclosure within 30 days of the date of the filing of the order on the matter.!
The formal order on Standard and GAF Energy’s motion was entered on September 27,
2019,
On October 11, 2019, SunPower served Defendants with an amended trade secret
designation pursuant to Code of Civil Procedure section 2019.210. Therein, SunPower listed 14
1 Notably, on February 3, 2020, the court (Hon. Helen E. Williams) issued an order
denying SunPower’s application for preliminary injunction, in which it also determined that
SunPower had not identified its asserted trade secrets with sufficient reasonable particularity in
its initial trade secret designation.trade secrets and, underneath each of the 14 trade secrets, SunPower identified numerous
additional trade secrets.
Subsequently, the parties met and conferred regarding the sufficiency of SunPower’s
amended trade secret designation. Specifically, Standard and GAF Energy asserted that
SunPower’s trade secret disclosure, as amended, was still inadequate. Despite these meet and
confer efforts, counsel for the parties were unable to informally resolve the discovery dispute.
In early January 2020, SunPower filed a motion for an order (1) confirming that its
amended trade secret designation, served October 11, 2019, satisfied Code of Civil Procedure
section 2019.210 and that discovery is not stayed and (2) compelling Standard to provide further
responses to the RFA, FI, SI, and RPD, and produce documents in accordance with its further
responses.
SunPower’s discovery motion proceeded to hearing on January 28, 2020. Following the
presentation of oral argument, the Court took the matter under submission.
On April 21, 2020, the Court issued an order denying SunPower’s motion. The Court
explained that several of the trade secrets listed in the amended trade secret designation, such as
Item Nos. 5, 6, and 12, were not identified with reasonable particularity.
On June 3, 2020, SunPower served Defendants with a second amended trade secret
designation pursuant to Code of Civil Procedure section 2019.210. (Fogarty Dec., | 33 & Ex. 1.)
Subsequently, the parties met and conferred regarding the sufficiency of SunPower’s second
amended trade secret designation. Specifically, Defendants asserted that SunPower’s trade
secret disclosure, as amended, was still inadequate. Despite these meet and confer efforts,
counsel for the parties were unable to informally resolve the discovery dispute.
Discussion
Pursuant to Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and
2033.290, Sun Power moves for an order: (1) confirming that its second amended trade secret
designation satisfies Code of Civil Procedure section 2019.210 and that discovery is not stayed;
and (2) compelling Standard to provide further responses to the RFA, FI, SI, and RPD, and
produce documents in accordance with its further responses.IL Request for Judicial Notice
In connection with its moving papers, SunPower asks the Court to take judicial notice of
a court order and excerpts from various documents filed in the cases of SunPower Corporation v.
Standard Industries Inc., et al. (Santa Clara County Superior Court, Case No. 20-CV-368636)
and Standard Industries Inc., et al. v. SunPower Corporation (Santa Clara County Superior
Court, Case No. 20-CV-368810), excerpts from a September 17, 2020 hearing transcript in the
case of SunPower Corporation v. Standard Industries Inc., et al. (Santa Clara County Superior
Court, Case No. 20-CV-368636), excerpts from documents filed in the case of SunPower
Corporation v. Gabriela Buena (American Arbitration Association, Case No. 01-19-0003-9663),
and excerpts from a June 25, 2020 hearing transcript in the case of SunPower Corporation v.
Gabriela Buena (American Arbitration Association, Case No. 01-19-0003-9663).
These items are not proper subjects of judicial notice because they pertain to different
cases involving different trade secrets and, therefore, are not relevant to the material issue before
the Court. (See Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197
Cal.App.4th 282, 307 [a precondition to judicial notice in either its permissive or mandatory
form is that the matter to be noticed be relevant to the material issue before the court]; see also
Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a
court need not take judicial notice of a matter if it is not “necessary, helpful, or relevant”].)
Accordingly, SunPower’s request for judicial notice is DENIED.
Il. Request for Order Confirming Second Amended Trade Secret Designation Satisfies
Code of Civil Procedure Section 2019.210 and Discovery is Not Stayed
As a preliminary matter, SunPower initially asks the Court to issue an order confirming
that its second amended trade secret designation satisfies Code of Civil Procedure section
2019.210 and that discovery is not stayed.
“A basic principle of motion practice is that the moving party must specify for the court
and the opposing party the grounds upon which that party seeks relief.” (Luri v. Greenwald(2003) 107 Cal.App.4th 1119, 1125; see Cal. Rules of Ct., rule 3.1110(a) [motion must state
nature of order being sought and ground for issuance of such order]; see also Code Civ. Proc., §
1010 [grounds upon which motion are made must be stated in notice].)
SunPower cites Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and
2033.290 as the legal bases for its motion. But these provisions do not authorize the Court to
make the judicial declaration sought by SunPower. Code of Civil Procedure sections 2030.300,
2031.310, and 2033.290 authorize motions to compel further responses to requests for admission,
interrogatories, and requests for production of documents. (Code Civ. Proc., §§ 2030.300, subd.
(a), 2031.310, subd. (a), & 2033.290, subd. (a).) Code of Civil Procedure section 2031.320
authorizes motions to compel compliance with an agreement to produce documents. (Code Civ.
Proc., § 2031.320, subd. (a).) Thus, SunPower has not provided a legal basis, and the Court is
aware of none, for an order confirming that SunPower’s second amended trade secret designation
satisfies Code of Civil Procedure Section 2019.210 and that discovery is not stayed.
Accordingly, the motion is DENIED to the extent it seeks a declaration that SunPower’s
second amended trade secret designation satisfies Code of Civil Procedure section 2019.210 and
that discovery is not stayed.
Il. Request for Order Compelling Standard to Provide Further Responses to the
RFA, FI, SI, and RPD
Next, SunPower moves to compel Standard to provide further responses to the RFA, FI,
SI, and RPD, without objections, and produce documents in accordance with its further
responses.
A. Legal Standard
Ifa party demanding a response to a request for admission deems an objection to a
particular request is without merit or too general, that party may move for an order compelling a
further response. (Code Civ. Proc., § 2033.290, subd. (a).) If a timely motion to compel a further
response to a request for admission has been filed, the burden is on the responding party to
justify any objections or failure to fully answer. (Fairmont Ins. Co. v. Super. Ct. (2000) 22
Cal.4th 245, 255 (Fairmont).)If a party demanding a response to an interrogatory deems that an objection to an
interrogatory is without merit or too general, that party may move for an order compelling a
further response. (Code Civ. Proc., § 2030.300, subd. (a)(1)-(3).) Ifa timely motion to compel a
further response to an interrogatory has been filed, the burden is on the responding party to
justify any objection to the discovery request. (Fairmont, supra, 22 Cal.4th at p. 255; Coy v.
Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221 (Coy).)
If a party demanding a response to a request for production of documents deems that an
objection in the response is without merit or too general, that party may move for an order
compelling a further response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to
compel a further response to a request for production of documents, it is the moving party’s
burden to demonstrate good cause for the discovery sought. (Kirkland v. Super. Ct. (2002) 95
Cal.App.4th 92, 98 (Kirkland).) Once good cause has been shown, the burden shifts to the
responding party to justify any objections. ([bid.)
B. Analysis
1 Good Cause
As an initial matter, SunPower must first establish good cause for the discovery sought
by the RPD.
To establish “good cause,” SunPower must show both relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the
case) and specific facts justifying discovery (e.g., why such information is necessary for trial
preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53
Cal.4th 1113, 1117.)
The Court finds that there is good cause for the discovery sought by the RPD. For
example, the RPD ask Standard to produce: all SunPower property in its possession; documents
containing SunPower proprietary or confidential information; documents identified in
SunPower’s trade secret disclosure; documents related to any search for SunPower documents on
Standard’s network and computers; and documents related to Standard and GAF Energy’s hiring
of DeBono. The discovery sought by the requests will likely elicit evidence tending to prove ordisprove Plaintiff's claims for trade secret misappropriation, breach of contract, and breach of
duty of loyalty because the documents requested directly relate to matters alleged in the
complaint or raised during the course of discovery. Documents regarding such matters are
necessary for SunPower to evaluate the merits of its claims and to prepare the case for trial.
2. Objections
Defendants Standard, GAF Energy LLC, and Martin DeBono (collectively,
“Defendants”) object to the RFA, FI, SI, and RPD on the ground that SunPower’s trade secret
disclosure does not comply with Code of Civil Procedure section 2019.210.
“Tn any action alleging the misappropriation of a trade secret under the Uniform Trade
Secrets Act ..., before commencing discovery relating to the trade secret, the party alleging the
misappropriation shall identify the trade secret with reasonable particularity subject to any orders
that may be appropriate under Section 3426.5 of the Civil Code.” (Code Civ. Proc., § 2019.210.)
A plaintiff alleging misappropriation of a trade secret “should describe the subject matter of the
trade secret with sufficient particularity to separate it from matters of general knowledge in the
trade or of special knowledge of those persons who are skilled in the trade, and to permit the
defendant to ascertain at least the boundaries within which the secret lies.” (Diodes, Inc. v.
Franzen (1968) 260 Cal.App.2d 244, 253.)
“[S]ection 2019.210 serves four interrelated goals: ‘ “First, it promotes well-investigated
claims and dissuades the filing of meritless trade secret complaints. Second, it prevents plaintiffs
from using the discovery process as a means to obtain the defendant’s trade secrets. [Citations.]
Third, the rule assists the court in framing the appropriate scope of discovery and in determining
whether plaintiff's discovery requests fall within that scope. [Citations.] Fourth, it enables
defendants to form complete and well-reasoned defenses, ensuring that they need not wait until
the eve of trial to effectively defend against charges of trade secret misappropriation.
[Citation.]”’ [Citation.]” (Brescia v. Angelin (2009) 172 Cal.App.4th 133, 144.)
“Reasonable particularity” mandated by section 2019.210 does not mean that the
party alleging misappropriation has to define every minute detail of its claimed
trade secret at the outset of the litigation. Nor does it require a discovery referee
or trial court to conduct a miniature trial on the merits of a misappropriation claimbefore discovery may commence. Rather, it means that the plaintiff must make
some showing that is reasonable, i.e., fair, proper, just and rational [citation],
under all of the circumstances to identify its alleged trade secret in a manner that
will allow the trial court to control the scope of subsequent discovery, protect all
parties’ proprietary information, and allow them a fair opportunity to prepare and
present their best case or defense at a trial on the merits. {Citations.]
(Advanced Modular Sputtering, Inc. v. Super. Ct. (2005) 132 Cal.App.4th 826, 835 (Advanced).)
“Trade secret’ means information, including a formula, pattern, compilation, program,
device, method, technique, or process, that: [] (1) Derives independent economic value, actual
or potential, from not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use; and [{[] (2) Is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d).)
Here, the Court finds that the trade secrets listed in SunPower’s seconded amended trade
secret designation are identified with reasonable particularity. (See Advanced, supra, 132
Cal.App.4th 835 [reasonable particularity “means that the plaintiff must make some showing that
is reasonable, i.e., fair, proper, just and rational, [citation] under all of the circumstances to
identify its alleged trade secret in a manner that will allow the trial court to control the scope of
subsequent discovery, protect all parties’ proprietary information, and allow them a fair
opportunity to prepare and present their best case or defense at a trial on the merits”].)
Defendants’ argument that more details are required is not well-taken. Code of Civil
Procedure section 2019.210 requires only the identification of the alleged trade secrets. (See
Brescia, supra, 172 Cal.App.4th at p. 149.) It does not compel the provision of argument or
evidence demonstrating that the claimed trade secrets actually qualify as such, and it “does not
create a procedural device to litigate the ultimate merits of the case—that is, to determine as a
matter of law on the basis of evidence presented whether the trade secret actually exists.” (See
ibid.) Here, the level of detail provided is sufficient to meet the reasonable particularity standard
for Code of Civil Procedure section 2019.210.
Accordingly, Defendants’ objection to the discovery requests on the ground that
SunPower’s operative trade secret disclosure does not comply with Code of Civil Procedure
section 2019.210 is overruled.
-10-Cc. Conclusion
SunPower’s motion to compel Standard to provide further responses to the RFA, FI, SI,
and RPD, and to produce documents in accordance with its further responses, is GRANTED.
To allow Standard sufficient time to pursue review of this order, compliance with this
order by Standard is stayed for 30 days from the date of filing of this order. Standard shall serve
SunPower with verified, code-compliant further responses to the RFA, FI, SI, and RPD no later
than 30 days following the expiration of the stay. Standard shall also produce documents in
accordance with its further responses no later than 30 days following the expiration of the stay.
Pursuant to the agreement of the parties, Standard may assert objections that are not
based on Code of Civil Procedure section 2019.210.
IT IS SO ORDERED,
DATED: February 25, 2021 Ale
Men. Thang. sacet
Thang N. Barrett
Judge of the Superior Court
-ll-SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
DOWNTOWN COURTHOUSE
191 NorTH First STREET
SAN JOSE, CALIFORNIA 95113
CIVIL DIVISION
Stephen Holbrook Sutro
Duane Morris LLP
One Market Plaza Spear Tower #2200
San Francisco CA 94105
RE: SUNPOWER CORPORATION vs MARTIN DEBONO et al
Case Number: 19CV349042
PROOF OF SERVICE
ORDER RE: DISCOVERY MOTION was delivered to the parties listed below the above entitled case as set forth
in the sworn declaration below.
If you, a party represented by you, or a witness to be called on behalf of that parly need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the
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DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to
each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose,
CA on February 25, 2021. CLERK OF THE COURT, by Donna O'Hara, Deputy.
cc: Jonathan Alan Patchen Baker Botts LLP 101 Caliifornia St Suite 3600 San Francisco CA 94111
John McMakin Neukom Skadden Arps Slate Meagher & Flom LLP 525 University Ave Suite 1400 Palo Alto CA
94301
CW-9027 REV 12/08/16 PROOF OF SERVICEPROOF OF SERVICE
SunPower Corporation v. Martin DeBono, Standard Industries, Inc., GAF Energy;
and DOES 1 - 100
Santa Clara County Superior Court, Action No. 19CV349042
I am a citizen of the United States, over the age of 18 years, and not a party to interested in
the cause. I am an employee with Duane Morris LLP and my business address is One Market Plaza,
Spear Tower, Suite 2200, San Francisco, California 94105. I am readily familiar with this firm’s
practices for collecting and processing correspondence for mailing with the United States Postal
Service and for transmitting documents by FedEx, fax, email, messenger and other modes. On the
date stated below, I served the following documents:
NOTICE OF ENTRY OF ORDER
BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed
to the person(s) set forth below, and placed the envelope for collection and mailing
following our ordinary business practices, which are that on the same day
correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service in San Francisco, California,
in_a sealed envelope with postage fully prepaid. OR
I enclosed the documents in a sealed envelope or package addressed to the
person(s) set forth below, and deposited the sealed envelope with the United States
Postal Service, with the postage fully prepaid.
BY MESSENGER SERVICE: I enclosed the documents in an envelope or package
addressed to the person(s) set forth below and providing the package(s) to a
professional messenger service for same day delivery service.
BY PERSONAL SERVICE: I personally delivered the documents to the persons at
the addresses listed below. (1) For a party represented by an attorney, delivery was
made to the attorney or the attorney’s office by leaving the documents in an envelope
or package clearly labeled to identify the attorney being served with a receptionist or
an individual in charge of the office. (2) For a party, delivery was made to the party or
by leaving the documents at the party’s residence with some person not less than 18
years of age between the hours of eight in the morning and six in the evening.
BY OVERNIGHT DELIVERY: I enclosed the documents in a sealed envelope or
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ordinary business practices, which are that on the same day a FedEx envelope or
package is placed for collection, it is deposited in the ordinary course of business with
FedEx for overnight delivery, with all charges fully prepaid.
BY FACSIMILE: Based on a court order or an agreement of the parties to accept
service by fax transmission, I faxed the documents to the person(s) at the fax
number(s) listed below. No error was reported by the fax machine that I used. A copy
of the record of the fax transmission(s), which I printed out, is attached.
x BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC
on all counsel on March 1, 2021.
2
PROOF OF SERVICE
DM1\10284992.1Jonathan A. Patchen, Esq.
Daniel P. Martin, Esq.
Baker Botts L.L.P.
101 California Street, Suite 3600
San Francisco, CA 94111
Telephone: 415.291.6209
Counsel for Defendant, Martin DeBono
Via Electronic Service
E-mail: jonathan.patchen@bakerbotts.com
daniel.martin@bakerbotts.com
Cheryl A. Cauley, Esq.
Baker Botts L.L.P.
1001 Page Mill Road
Building One, Suite 200
Palo Alto, CA 94304
Telephone: 650-739-7500
E-mail: cheryl.cauley@bakerbotts.com
John (Jay) Neukom, Esq.
Caroline Van Ness, Esq.
Michelle Kao, Esq.
Skadden, Arps, Slate, Meagher & Flom
LLP
525 University Avenue, Suite 1400
Palo Alto, CA 94301-1908
Telephone: 650.470.4560
E-mail: john.neukom@skadden.com
Counsel for Defendant, Martin DeBono
Via Electronic Service
Counsel for Defendants, Standard/GAF
Energy
Via Electronic Service
Caroline. VanNess@skadden.com
Michelle.Kao@skadden.com
Abraham A. Tabaie, Esq.
Raza Rasheed, Esq.
Counsel for Defendants, Standard/GAF
Energy
Skadden, Arps, Slate, Meagher & Flom LLP
300 S. Grand Avenue, Suite 3400
Los Angeles, CA 90071
E-mail: atabaie@skadden.com
raza.tasheed@skadden.com
Via Electronic Service
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Dated: March 1, 2021
3
/s/_Jean Marie Reed
Jean Marie Reed
PROOF OF SERVICE
DM1\10284992.1
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19CV349042 Santa Clara — Civil System S: Electronically Filed Stephen H. Sutro (SBN 172168) F Suzanne R. Fogarty (SBN 154319) py ae Court of CA, Meghan C. Killian (SBN 310195) ounty of Santa Clara, Duane Morris LLP on 3/1/2021 5:04 PM One Market Plaza Reviewed By: System System Spear Tower, Suite 2200 Case #19CV349042 San Francisco, CA 94105 Envelope: 5939104 Tel: 415.957.3000 Fax: 415.957.3001 E-mail: SHSutro@DuaneMorris.com SRFogarty@DuaneMorris.com MCKillian@DuaneMorris.com Brad Thompson (admitted pro hac vice) Bert Greene (admitted pro hac vice) Duane Morris LLP Las Cimas IV 900 S. Capital of Texas Hwy., Suite 300 Austin, TX 78746-5435 Tel: 512.277.2300 Fax: 512.277.2301 E-mail: | BThompson@DuaneMorris.com BGreene@DuaneMorris.com Attorneys for Plaintiff, SUNPOWER CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SUNPOWER CORPORATION, Case No. 19CV349042 Plaintiff, NOTICE OF ENTRY OF ORDER v. Dept.: 21 MARTIN DEBONO, STANDARD INDUSTRIES INC., GAF ENERGY; and DOES 1-100, Complaint Filed: June 14, 2019 Defendants. stem NOTICE OF ENTRY OF ORDER, Case No. 19CV349042TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on February 25, 2021, the Court signed and entered the attached Order Granting SunPower Corporation’s Motion to Compel Discovery. A true and correct copy of the Order signed by the Court, is attached hereto as Exhibit A. Dated: March 1, 2021 DUANE MORRIS LLP By:__/s/ Suzanne R. Fogarty Stephen H. Sutro (SBN 172168) Suzanne R. Fogarty (SBN 154319) Attorneys for Plaintiff, SunPower Corporation 2 DM1N11836364.1 NOTICE OF ENTRY OF ORDER, Case No. 19CV349042SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SUNPOWER CORPORATION, Case No. 19CV349042 Plaintiff, ORDER RE: DISCOVERY MOTION vs. MARTIN DEBONO, et al., Defendants, The motion by plaintiff SunPower Corporation (“SunPower”) for an order (1) confirming that its second amended trade secret designation, served June 3, 2020, satisfies Code of Civil Procedure section 2019.210 and that discovery is not stayed and (2) compelling defendant Standard Industries, Inc. (“Standard”) to provide further responses to requests for admission, set one (“RFA”), form interrogatories, set one (“FI”), special interrogatories, set one (“SI”), and requests for production of documents, set one (“RPD”), and produce documents in accordance with its further responses came on for hearing before the Honorable Thang N. Barrett on November 24, 2020, and on December 17, 2020 in Department 21. Having taken the matter under submission on December 17, 2020, the Court now finds and orders as follows:Factual and Procedural Background This action arises out of defendant Martin DeBono’s (“DeBono”) alleged misappropriation of SunPower’s proprietary information and trade secrets. (SAC, { 1.) According to the allegations of the operative SAC, DeBono was SunPower’s Executive Vice President of Global Channels and responsible for SunPower’s rooftop solar business. (dd. at {ff 1 & 25.) When he started at SunPower, DeBono signed a non-disclosure agreement whereby he agreed to safeguard SunPower’s confidential information and work exclusively for SunPower during his employment. (Jd. at § 92.) DeBono later signed an employment agreement, in which he agreed not to actively engage in any other employment without his supervisor’s prior approval. (/d. at | 93.) While he was still employed with SunPower, DeBono began covertly working for Standard. (SAC, {3 & 47.) Specifically, DeBono drafted materials and a PowerPoint presentation related to how Standard could take over the integrated rooftop solar market, forwarded proprietary and confidential emails to a private email account, and uploaded over 1,700 SunPower files to a private OneDrive account. (/d. at {J 2-6, 48-54, & 58-60.) The emails contained confidential guidance to SunPower’s sales team “on how to explain in detail to prospective and existing customers why SunPower’s solar offerings are better than the competition,” “a roadmap on different ways to differentiate and distinguish the competition, often through use of technical and product testing data,” and “confidential and proprietary information about SunPower’s sales strategy approach and execution.” (Id. at J] 4 & 48.) The files uploaded to the OneDrive account contained “confidential technical information regarding 9&6, SunPower’s research and development of products and technology,” “a confidential analysis of different ways to differentiate and distinguish the competition, often through use of technical and product testing data,” and “proprietary, confidential, and trade secret information about SunPower’s sales strategy approach and execution, product development, market analysis, dealer relationships, and strategic initiatives.” (Id. at J] 6 & 58-60.) When DeBono left SunPower on April 6, 2018, he entered into a separation agreement whereby he agreed to return all SunPower files and documents, not use any confidential and/orproprietary information for the benefit of any third party, and not solicit SunPower employees for one year. (SAC, Ff 2 & 94-97.) However, DeBono allegedly left “with over 1,700 SunPower files providing a roadmap on how to build a successful solar business.” (SAC, § 2.) “These files included hundreds of SunPower confidential and proprietary documents ....” (Jbid.) In May 2018, DeBono joined Standard as an Executive Vice President, Head of Solar. (SAC, 25.) DeBono later became president of defendant GAF Energy LLC (“GAF Energy”), Standard’s new rooftop solar division. (Id. at JJ 1 & 25.) “DeBono immediately began using SunPower’s confidential information to solicit and target other SunPower employees for hiring by Standard to build its new rooftop solar division, GAF Energy.” (/d. at {fj 2, 8-9, & 64.) DeBono allegedly stole SunPower’s proprietary information and trade secrets to help Standard and GAF Energy “leapfrog past years of work needed to develop and market an integrated rooftop solar product.” (/d. at ff] 1, 9-11, 43-44, & 65-66.) Based on the foregoing allegations, SunPower filed the operative SAC against DeBono, Standard, and GAF Energy (collectively, “Defendants”) on February 24, 2020. The SAC alleges causes of action for: (1) trade secret misappropriation; (2) breach of written contract; (3) breach of duty of loyalty; and (4) violation of Penal Code section 502. Discovery Dispute In June 2019, SunPower served Defendants with a trade secret designation pursuant to Code of Civil Procedure section 2019.210. Therein, SunPower identified its trade secrets allegedly misappropriated by Defendants as: 1. The SunPower files listed on Exhibit 1 the May 30, 2019 report entitled “Martin DeBono OneDrive Data Collection” prepared by Kivu Consulting, Inc. (“Kivu”), and any information derived, modified, or copied therefrom. [...] 2. The 61 internal SunPower emails authored by Cole Peyton that Mr. DeBono emailed to his personal live.com email account on October 31, 2017, and any information derived, modified, or copied therefrom. [...]In early July 2019, SunPower served Standard with the RFA, FI, SI, and RPD. Thereafter, counsel for the parties met and conferred regarding SunPower’s pending discovery and the sufficiency of SunPower’s trade secret designation. Specifically, Standard and GAF Energy asserted that SunPower’s trade secret disclosure was inadequate. Despite these meet and confer efforts, counsel for the parties were unable to informally resolve the discovery dispute. In mid-July 2019, Standard and GAF Energy filed a motion to quash discovery and for an order barring further discovery until SunPower provided an adequate trade secret designation under Code of Civil Procedure section 2019,.210. In early August 2019, Standard served SunPower with objection-only responses to the RFA, FI, SI, and RPD. Standard objected to the discovery requests on numerous grounds, including that SunPower had not provided a trade secret designation in compliance with Code of Civil Procedure section 2019.210. Standard and GAF Energy’s motion proceeded to hearing on September 10, 2019. At the hearing, the court (Hon. Mark H. Pierce) adopted its uncontested tentative ruling, which denied the motion to the extent it sought to quash the RFA, FI, SI, RPD and granted the motion to the extent it sought to stay discovery with respect to the claim for trade secret misappropriation until SunPower served an adequate trade secret disclosure under Code of Civil Procedure section 2019.210. The court ordered SunPower to serve Defendants with an amended trade secret disclosure within 30 days of the date of the filing of the order on the matter.! The formal order on Standard and GAF Energy’s motion was entered on September 27, 2019, On October 11, 2019, SunPower served Defendants with an amended trade secret designation pursuant to Code of Civil Procedure section 2019.210. Therein, SunPower listed 14 1 Notably, on February 3, 2020, the court (Hon. Helen E. Williams) issued an order denying SunPower’s application for preliminary injunction, in which it also determined that SunPower had not identified its asserted trade secrets with sufficient reasonable particularity in its initial trade secret designation.trade secrets and, underneath each of the 14 trade secrets, SunPower identified numerous additional trade secrets. Subsequently, the parties met and conferred regarding the sufficiency of SunPower’s amended trade secret designation. Specifically, Standard and GAF Energy asserted that SunPower’s trade secret disclosure, as amended, was still inadequate. Despite these meet and confer efforts, counsel for the parties were unable to informally resolve the discovery dispute. In early January 2020, SunPower filed a motion for an order (1) confirming that its amended trade secret designation, served October 11, 2019, satisfied Code of Civil Procedure section 2019.210 and that discovery is not stayed and (2) compelling Standard to provide further responses to the RFA, FI, SI, and RPD, and produce documents in accordance with its further responses. SunPower’s discovery motion proceeded to hearing on January 28, 2020. Following the presentation of oral argument, the Court took the matter under submission. On April 21, 2020, the Court issued an order denying SunPower’s motion. The Court explained that several of the trade secrets listed in the amended trade secret designation, such as Item Nos. 5, 6, and 12, were not identified with reasonable particularity. On June 3, 2020, SunPower served Defendants with a second amended trade secret designation pursuant to Code of Civil Procedure section 2019.210. (Fogarty Dec., | 33 & Ex. 1.) Subsequently, the parties met and conferred regarding the sufficiency of SunPower’s second amended trade secret designation. Specifically, Defendants asserted that SunPower’s trade secret disclosure, as amended, was still inadequate. Despite these meet and confer efforts, counsel for the parties were unable to informally resolve the discovery dispute. Discussion Pursuant to Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and 2033.290, Sun Power moves for an order: (1) confirming that its second amended trade secret designation satisfies Code of Civil Procedure section 2019.210 and that discovery is not stayed; and (2) compelling Standard to provide further responses to the RFA, FI, SI, and RPD, and produce documents in accordance with its further responses.IL Request for Judicial Notice In connection with its moving papers, SunPower asks the Court to take judicial notice of a court order and excerpts from various documents filed in the cases of SunPower Corporation v. Standard Industries Inc., et al. (Santa Clara County Superior Court, Case No. 20-CV-368636) and Standard Industries Inc., et al. v. SunPower Corporation (Santa Clara County Superior Court, Case No. 20-CV-368810), excerpts from a September 17, 2020 hearing transcript in the case of SunPower Corporation v. Standard Industries Inc., et al. (Santa Clara County Superior Court, Case No. 20-CV-368636), excerpts from documents filed in the case of SunPower Corporation v. Gabriela Buena (American Arbitration Association, Case No. 01-19-0003-9663), and excerpts from a June 25, 2020 hearing transcript in the case of SunPower Corporation v. Gabriela Buena (American Arbitration Association, Case No. 01-19-0003-9663). These items are not proper subjects of judicial notice because they pertain to different cases involving different trade secrets and, therefore, are not relevant to the material issue before the Court. (See Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307 [a precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the court]; see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter if it is not “necessary, helpful, or relevant”].) Accordingly, SunPower’s request for judicial notice is DENIED. Il. Request for Order Confirming Second Amended Trade Secret Designation Satisfies Code of Civil Procedure Section 2019.210 and Discovery is Not Stayed As a preliminary matter, SunPower initially asks the Court to issue an order confirming that its second amended trade secret designation satisfies Code of Civil Procedure section 2019.210 and that discovery is not stayed. “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief.” (Luri v. Greenwald(2003) 107 Cal.App.4th 1119, 1125; see Cal. Rules of Ct., rule 3.1110(a) [motion must state nature of order being sought and ground for issuance of such order]; see also Code Civ. Proc., § 1010 [grounds upon which motion are made must be stated in notice].) SunPower cites Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and 2033.290 as the legal bases for its motion. But these provisions do not authorize the Court to make the judicial declaration sought by SunPower. Code of Civil Procedure sections 2030.300, 2031.310, and 2033.290 authorize motions to compel further responses to requests for admission, interrogatories, and requests for production of documents. (Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a), & 2033.290, subd. (a).) Code of Civil Procedure section 2031.320 authorizes motions to compel compliance with an agreement to produce documents. (Code Civ. Proc., § 2031.320, subd. (a).) Thus, SunPower has not provided a legal basis, and the Court is aware of none, for an order confirming that SunPower’s second amended trade secret designation satisfies Code of Civil Procedure Section 2019.210 and that discovery is not stayed. Accordingly, the motion is DENIED to the extent it seeks a declaration that SunPower’s second amended trade secret designation satisfies Code of Civil Procedure section 2019.210 and that discovery is not stayed. Il. Request for Order Compelling Standard to Provide Further Responses to the RFA, FI, SI, and RPD Next, SunPower moves to compel Standard to provide further responses to the RFA, FI, SI, and RPD, without objections, and produce documents in accordance with its further responses. A. Legal Standard Ifa party demanding a response to a request for admission deems an objection to a particular request is without merit or too general, that party may move for an order compelling a further response. (Code Civ. Proc., § 2033.290, subd. (a).) If a timely motion to compel a further response to a request for admission has been filed, the burden is on the responding party to justify any objections or failure to fully answer. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 (Fairmont).)If a party demanding a response to an interrogatory deems that an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. (Code Civ. Proc., § 2030.300, subd. (a)(1)-(3).) Ifa timely motion to compel a further response to an interrogatory has been filed, the burden is on the responding party to justify any objection to the discovery request. (Fairmont, supra, 22 Cal.4th at p. 255; Coy v. Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221 (Coy).) If a party demanding a response to a request for production of documents deems that an objection in the response is without merit or too general, that party may move for an order compelling a further response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to compel a further response to a request for production of documents, it is the moving party’s burden to demonstrate good cause for the discovery sought. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) Once good cause has been shown, the burden shifts to the responding party to justify any objections. ([bid.) B. Analysis 1 Good Cause As an initial matter, SunPower must first establish good cause for the discovery sought by the RPD. To establish “good cause,” SunPower must show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117.) The Court finds that there is good cause for the discovery sought by the RPD. For example, the RPD ask Standard to produce: all SunPower property in its possession; documents containing SunPower proprietary or confidential information; documents identified in SunPower’s trade secret disclosure; documents related to any search for SunPower documents on Standard’s network and computers; and documents related to Standard and GAF Energy’s hiring of DeBono. The discovery sought by the requests will likely elicit evidence tending to prove ordisprove Plaintiff's claims for trade secret misappropriation, breach of contract, and breach of duty of loyalty because the documents requested directly relate to matters alleged in the complaint or raised during the course of discovery. Documents regarding such matters are necessary for SunPower to evaluate the merits of its claims and to prepare the case for trial. 2. Objections Defendants Standard, GAF Energy LLC, and Martin DeBono (collectively, “Defendants”) object to the RFA, FI, SI, and RPD on the ground that SunPower’s trade secret disclosure does not comply with Code of Civil Procedure section 2019.210. “Tn any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act ..., before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity subject to any orders that may be appropriate under Section 3426.5 of the Civil Code.” (Code Civ. Proc., § 2019.210.) A plaintiff alleging misappropriation of a trade secret “should describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries within which the secret lies.” (Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 253.) “[S]ection 2019.210 serves four interrelated goals: ‘ “First, it promotes well-investigated claims and dissuades the filing of meritless trade secret complaints. Second, it prevents plaintiffs from using the discovery process as a means to obtain the defendant’s trade secrets. [Citations.] Third, the rule assists the court in framing the appropriate scope of discovery and in determining whether plaintiff's discovery requests fall within that scope. [Citations.] Fourth, it enables defendants to form complete and well-reasoned defenses, ensuring that they need not wait until the eve of trial to effectively defend against charges of trade secret misappropriation. [Citation.]”’ [Citation.]” (Brescia v. Angelin (2009) 172 Cal.App.4th 133, 144.) “Reasonable particularity” mandated by section 2019.210 does not mean that the party alleging misappropriation has to define every minute detail of its claimed trade secret at the outset of the litigation. Nor does it require a discovery referee or trial court to conduct a miniature trial on the merits of a misappropriation claimbefore discovery may commence. Rather, it means that the plaintiff must make some showing that is reasonable, i.e., fair, proper, just and rational [citation], under all of the circumstances to identify its alleged trade secret in a manner that will allow the trial court to control the scope of subsequent discovery, protect all parties’ proprietary information, and allow them a fair opportunity to prepare and present their best case or defense at a trial on the merits. {Citations.] (Advanced Modular Sputtering, Inc. v. Super. Ct. (2005) 132 Cal.App.4th 826, 835 (Advanced).) “Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [{[] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d).) Here, the Court finds that the trade secrets listed in SunPower’s seconded amended trade secret designation are identified with reasonable particularity. (See Advanced, supra, 132 Cal.App.4th 835 [reasonable particularity “means that the plaintiff must make some showing that is reasonable, i.e., fair, proper, just and rational, [citation] under all of the circumstances to identify its alleged trade secret in a manner that will allow the trial court to control the scope of subsequent discovery, protect all parties’ proprietary information, and allow them a fair opportunity to prepare and present their best case or defense at a trial on the merits”].) Defendants’ argument that more details are required is not well-taken. Code of Civil Procedure section 2019.210 requires only the identification of the alleged trade secrets. (See Brescia, supra, 172 Cal.App.4th at p. 149.) It does not compel the provision of argument or evidence demonstrating that the claimed trade secrets actually qualify as such, and it “does not create a procedural device to litigate the ultimate merits of the case—that is, to determine as a matter of law on the basis of evidence presented whether the trade secret actually exists.” (See ibid.) Here, the level of detail provided is sufficient to meet the reasonable particularity standard for Code of Civil Procedure section 2019.210. Accordingly, Defendants’ objection to the discovery requests on the ground that SunPower’s operative trade secret disclosure does not comply with Code of Civil Procedure section 2019.210 is overruled. -10-Cc. Conclusion SunPower’s motion to compel Standard to provide further responses to the RFA, FI, SI, and RPD, and to produce documents in accordance with its further responses, is GRANTED. To allow Standard sufficient time to pursue review of this order, compliance with this order by Standard is stayed for 30 days from the date of filing of this order. Standard shall serve SunPower with verified, code-compliant further responses to the RFA, FI, SI, and RPD no later than 30 days following the expiration of the stay. Standard shall also produce documents in accordance with its further responses no later than 30 days following the expiration of the stay. Pursuant to the agreement of the parties, Standard may assert objections that are not based on Code of Civil Procedure section 2019.210. IT IS SO ORDERED, DATED: February 25, 2021 Ale Men. Thang. sacet Thang N. Barrett Judge of the Superior Court -ll-SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NorTH First STREET SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION Stephen Holbrook Sutro Duane Morris LLP One Market Plaza Spear Tower #2200 San Francisco CA 94105 RE: SUNPOWER CORPORATION vs MARTIN DEBONO et al Case Number: 19CV349042 PROOF OF SERVICE ORDER RE: DISCOVERY MOTION was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that parly need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on February 25, 2021. CLERK OF THE COURT, by Donna O'Hara, Deputy. cc: Jonathan Alan Patchen Baker Botts LLP 101 Caliifornia St Suite 3600 San Francisco CA 94111 John McMakin Neukom Skadden Arps Slate Meagher & Flom LLP 525 University Ave Suite 1400 Palo Alto CA 94301 CW-9027 REV 12/08/16 PROOF OF SERVICEPROOF OF SERVICE SunPower Corporation v. Martin DeBono, Standard Industries, Inc., GAF Energy; and DOES 1 - 100 Santa Clara County Superior Court, Action No. 19CV349042 I am a citizen of the United States, over the age of 18 years, and not a party to interested in the cause. I am an employee with Duane Morris LLP and my business address is One Market Plaza, Spear Tower, Suite 2200, San Francisco, California 94105. I am readily familiar with this firm’s practices for collecting and processing correspondence for mailing with the United States Postal Service and for transmitting documents by FedEx, fax, email, messenger and other modes. On the date stated below, I served the following documents: NOTICE OF ENTRY OF ORDER BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the person(s) set forth below, and placed the envelope for collection and mailing following our ordinary business practices, which are that on the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in San Francisco, California, in_a sealed envelope with postage fully prepaid. OR I enclosed the documents in a sealed envelope or package addressed to the person(s) set forth below, and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. BY MESSENGER SERVICE: I enclosed the documents in an envelope or package addressed to the person(s) set forth below and providing the package(s) to a professional messenger service for same day delivery service. BY PERSONAL SERVICE: I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or the attorney’s office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party’s residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. BY OVERNIGHT DELIVERY: I enclosed the documents in a sealed envelope or package provided by FedEx and addressed to the person(s) listed below by placing the envelope or package(s) for collection and transmittal by FedEx pursuant to my firm’s ordinary business practices, which are that on the same day a FedEx envelope or package is placed for collection, it is deposited in the ordinary course of business with FedEx for overnight delivery, with all charges fully prepaid. BY FACSIMILE: Based on a court order or an agreement of the parties to accept service by fax transmission, I faxed the documents to the person(s) at the fax number(s) listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission(s), which I printed out, is attached. x BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC on all counsel on March 1, 2021. 2 PROOF OF SERVICE DM1\10284992.1Jonathan A. Patchen, Esq. Daniel P. Martin, Esq. Baker Botts L.L.P. 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: 415.291.6209 Counsel for Defendant, Martin DeBono Via Electronic Service E-mail: jonathan.patchen@bakerbotts.com daniel.martin@bakerbotts.com Cheryl A. Cauley, Esq. Baker Botts L.L.P. 1001 Page Mill Road Building One, Suite 200 Palo Alto, CA 94304 Telephone: 650-739-7500 E-mail: cheryl.cauley@bakerbotts.com John (Jay) Neukom, Esq. Caroline Van Ness, Esq. Michelle Kao, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1400 Palo Alto, CA 94301-1908 Telephone: 650.470.4560 E-mail: john.neukom@skadden.com Counsel for Defendant, Martin DeBono Via Electronic Service Counsel for Defendants, Standard/GAF Energy Via Electronic Service Caroline. VanNess@skadden.com Michelle.Kao@skadden.com Abraham A. Tabaie, Esq. Raza Rasheed, Esq. Counsel for Defendants, Standard/GAF Energy Skadden, Arps, Slate, Meagher & Flom LLP 300 S. Grand Avenue, Suite 3400 Los Angeles, CA 90071 E-mail: atabaie@skadden.com raza.tasheed@skadden.com Via Electronic Service I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: March 1, 2021 3 /s/_Jean Marie Reed Jean Marie Reed PROOF OF SERVICE DM1\10284992.1