Preview
10
11
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19CV349042
Santa Clara — Civil
Stephen H. Sutro (SBN 172168)
Suzanne R. Fogarty (SBN 154319)
Meghan C. Killian (SBN 310195)
Duane Morris LLP
One Market Plaza
Spear Tower, Suite 2200
San Francisco, CA 94105
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
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 8/25/2020 4:53 PM
Reviewed By: S. Vera
Case #19CV349042
Envelope: 4824699
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
SUNPOWER CORPORATION,
Plaintiff,
v.
MARTIN DEBONO; STANDARD INDUSTRIES
INC.; GAF ENERGY; and DOES 1-100,
Defendants.
Case No. 19-CV-349042
DECLARATION OF SUZANNE R.
FOGARTY IN SUPPORT OF
SUNPOWER CORPORATION’S
REPLY IN SUPPORT OF DEMURRER
TO STANDARD INDUSTRIES INC.’S
CROSS-COMPLAINT
Date: September 1, 2020
Time: 9:00 a.m.
Dept.: 21
Judge: Hon. Thang N. Barrett
Complaint Filed: June 14, 2019
Cross-Complaint filed: March 30, 2020
.|Vera
DECLARATION OF SUZANNE FOGARTY ISO REPLY, Case No. 19CV349042
DMI\11368550.110
11
13
14
15
16
17
19
20
21
22
23
24
25
26
27
28
I, Suzanne R. Fogarty, declare as follows:
iF Tam an attorney duly licensed to practice in all of the courts of the State of California
and am Special Counsel at Duane Morris LLP, attorney of record for Plaintiff SunPower
Corporation (“SunPower”). I have personal knowledge of all matters stated herein. If called as a
witness in this matter, I could and would competently testify thereto.
2. This declaration is submitted in support of SunPower’s Reply Brief in support of its
Demurrer to Standard’s Cross-Complaint.
3. A true and correct copy of the June 1, 2020 Arbitration Order dismissing Gabriela
Bunea’s Counter-Claim based on Section 17200 in SunPower Corporation v. Gabriela Bunea —
AAA Case 01-19-0003-9663 is attached Ex. A.
4. I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on August 25, 2020 in San Francisco, California.
Suzanne RK Fagarty
Suzanne Ryder Fogarty
2
DECLARATION OF SUZANNE FOGARTY ISO REPLY, Case No. 19CV349042AMERICAN ARBITRATION ASSOCIATION
EMPLOYMENT ARBITRATION TRIBUNAL
SUNPOWER CORPORATON,
Claimant and Counter-Respondent,
Case No. 01-19-0003-9663
ORDER RE SUNPOWER’S MOTION TO
GABRIELA BUNEA, DISMISS AMENDED COUNTERCLAIM
Respondent and Counter-Claimant.
I. INTRODUCTION
Respondent Dr. Bunea (“Respondent” or “Dr. Bunea”) filed an Amended
Counterclaim after the Arbitrator dismissed her Counterclaim and granted her leave to
amend. In her Amended Counterclaim, Dr. Bunea asserts a cause of action for Declaratory
Relief, seeking a Declaration of the parties’ rights and obligations under the 2002 Employee
Nondisclosure Agreement (the “Agreement”), and a cause of action for Unfair Competition
pursuant to Cal. Bus. and Prof. Code § 17200, based on SunPower’s alleged violation of Cal.
Bus. and Prof. Code § 16600.
SunPower moved to dismiss the Amended Counterclaim on a number of grounds,
including that there is no actual controversy to resolve, and that Respondent’s
affirmative defenses are coextensive with her Amended Counterclaim. SunPower also
moved to dismiss the § 17200 cause of action because the Agreement does notcontravene § 16600, upon which the violation of § 17200 is predicated. Further,
SunPower contends that Dr. Bunea’s Prayer for Relief seeks impermissible remedies. In
the alternative, SunPower moves to strike the allegations in the Amended Counterclaim
concerning the solicitation of Sunpower employees.
The parties fully briefed the Motion, and on May 29, 2020, held a telephonic
hearing in front of the Arbitrator. Stephen Sutro, Suzanne Fogarty and Brad Thompson of
Duane Morris, LLP appeared for SunPower. Jennifer Rappaport of SunPower also
appeared. Kevin Minnick, Dolly Hansen and Matt Umhofer of Spertus, Landes & Umhofer
LLC appeared for Dr. Bunea.
For the following reasons, SunPower’s Motion to Dismiss is GRANTED.
I. ANALYSIS
A. Declaratory Relief Standard.
Cal. Code of Civil Procedure § 1060 provides that declaratory relief only is
appropriate only where there is an “actual controversy.” Cal. Code of Civil Procedure §
1061 provides that a court (here the Arbitral Tribunal) “may refuse to exercise the power
granted by this chapter in any case where its declaration or determination is not
necessary or proper at the time under all the circumstances.” As explained below,
because there is no actual controversy about the rights and obligations of the parties
under the Agreement, a declaration of those rights and obligations is not necessary or
proper.B. There is no Actual Controversy About Dr. Bunea’s Rights and Duties Under the
Agreement.
The Agreement provides, in pertinent part, that:
1. CONFIDENTIALITY
a. “Confidential Information” means any SunPower proprietary information,
technical data, trade secrets or know-how, including, but not limited tom (sic)
research, product plans, products, services, suppliers, supplier lists,
customers, customer lists, markets, software, development inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other business information
disclosed by SunPower either directly or indirectly in writing, orally, or by
drawings or inspection of parts or equipment.
b. Employee will not, during or subsequent to the term of this Agreement, use
SunPower’s Confidential Information for any purpose whatsoever other than
the performance of his(her) responsibilities as an employee of SunPower or
disclose SunPower’s Confidential Information to any third party, and it is
understood and agreed that said Confidential Information shall remain the
sole property of SunPower.
The Agreement contains none of the covenants that courts have found violative of Cal.
Bus. & Prof. Code § 16600. It does not contain a non-compete, which the California Supreme
Court has held to be unlawful. See Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 946 (2008).
Nor does it contain a non-solicitation clause, which has been found to violate § 16600. See AVN
Healthcare v. Aya Healthcare Serv., Inc., 28 Cal. App. Sth 923 (2018); The Ret. Grp. v. Galante,
176 Cal. App. 4th 1226, 1241 (2009). The Agreement does not prohibit Dr. Bunea from using
publicly available information. Nor is there anything in the Agreement that restricts Dr. Bunea
for working for Standard/GAF Energy based on inevitable disclosure.Although Dr. Bunea appeared to argue in her Opposition to the Motion to Dismiss that
§ 16600 does not countenance any restrictions on the use of confidential or proprietary
information that is not a trade secret, she appeared to abandon that position at the hearing, and
correctly so. California courts have recognized and upheld the right of companies to protect
their confidential and proprietary information. See Jenni Rivera Enterprises, LLC v. Latin World
Entm’t Holdings, Inc., 36 Cal. App. 5th 766, 783 (2019), Morlife, Inc. v. Perry, 56 Cal. App. 4th
1514, 1519 (1997).
In sum, there is no controversy about Dr. Bunea’s rights and duties under the Agreement.
Accordingly, there is nothing for this Tribunal to adjudicate with respect to the Declaratory Relief
Cause of Action.
C. Dr. Bunea’s Action for Declaratory Relief is Coextensive With Her Declaratory Relief
Cause of Action.
Where a party’s counterclaim for declaratory relief raises the same issues as her
affirmative defenses, California courts have found it proper, and at times necessary, to dismiss
the counterclaim. See C.J.L. Construction, Inc. v. Universal Plumbing, 18 Cal. App. 4th 376, 391
(1993). The district court in Applied Materials Inc. v. Advanced Micro-Fabrication Equipment
(Shanghai), a decision relied upon by Dr. Bunea, reached the opposite conclusion, i.e., it allowed
a declaratory relief counterclaim to proceed in the face of the argument that it duplicated “facts
already at issue” in the case. /d., No. C 07-05248 JW, 2008 WL 11398914, at * 2 (N.D. Cal.
2008). However, Applied Materials analyzed the U.S. Declaratory Judgment Act, not the Cal.
Code of Civil Procedure. More importantly, Dr. Bunea’s counterclaim does not duplicate “facts
already at issue” in SunPower’s Demand, but her own affirmative defenses.By asserting her affirmative defenses, Dr. Bunea will have the opportunity to present the
defense that, despite the fact that the Agreement does not prevent her from working at
Standard/GAF Energy, SunPower’s actions (including the January 18, 2019 preservation letter)
amounted to a violation of the Inevitable Disclosure Doctrine (Twelfth Affirmative Defense). She
can also present evidence that any information she used was not confidential because the
Agreement’s definition of confidentiality is overbroad (Thirteenth Affirmative Defense). And she
can present evidence that any information she may have used is in the public domain or
generally known in the industry (Twenty-First and Twenty-Third Affirmative Defenses).
At the hearing, Dr. Bunea asserted that the declaratory relief cause of action should be
sustained because, should SunPower’s breach of contract claim fail, she will not have the remedy
of understanding her prospective rights and obligations under the Agreement. This argument is
not well taken. The Agreement is clear on its face: it does not prohibit solicitation of SunPower
employees, or the use of publicly available information, and it does not prohibit Dr. Bunea from
working for a competitor because of inevitable disclosure.
What Dr. Bunea appears to seek in her Declaratory Relief cause of action is an analysis of
what might potentially violate the Agreement in the future. But it would be impossible to
foresee every future use of information which could potentially implicate the Agreement, short
of engaging in speculation and conjecture. Cal. Code of Civil Procedure § 1060 does not permit
actions that are “conjectural, anticipated to occur in the future, or an attempt to obtain an
advisory opinion from the court.” Lee v. Silveira, 6 Cal. App. Sth 527, 546 (2016).
For all of these reasons, the cause of action for Declaratory Relief fails.D. The Cause of Action for a Violation of Section 17200 Fails.
Dr. Bunea’s cause of action for a violation of Cal. Bus. & Prof. Code § 17200 is derivative of
and based entirely on her allegation that the Agreement contravenes § 16600. Having found that
nothing in the Agreement runs afoul of § 16600, no predicate remains that is necessary to
establish a cause of action for a violation of § 17200. See Darush v. Revision LP, No. 12-cv-10296,
2013 U.S. Dist. LEXIS 60084, at *18-19 (C.D. Cal. Apr. 10, 2013) (“When a statutory claim fails, a
derivative UCL claim also fails.” (quoting Alesick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176, 1184
(2012)),
Il. CONCLUSION
Dr. Bunea’s Amended Counterclaim is hereby DISMISSED without leave to amend.
Her Amended Denial, Response and Affirmative Defenses, without the Amended
Counterclaim, shall be filed and served no later than 5 p.m. on June 12, 2020. Pursuant to
AAA Commercial Rule 47 (d) (ii), Dr. Bunea may request an award of attorneys’ fees when
she files her amended responsive pleading.
IT IS SO ORDERED. June 1, 2020
ViAtA 2A
Dana Welch
ArbitratorwoHN
PROOF 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:
DECLARATION OF SUZANNE R. FOGARTY IN SUPPORT OF SUNPOWER
CORPORATION’S REPLY IN SUPPORT OF DEMURRER TO STANDARD
INDUSTRIES INC.’S CROSS-COMPLAINT
x
BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC on
all counsel on August 25, 2020.
Jonathan 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
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
Caroline. VanNess@skadden.com
Michelle.Kao@skadden.com
Counsel for Defendant, Martin DeBono
Via Electronic Service
Counsel for Defendant, Martin DeBono
Via Electronic Service
Counsel for Defendants, Standard/GAF
Energy
Via Electronic Service
DM1\11368895.1
PROOF OF SERVICEAbraham A. Tabaie, Esq. Counsel for Defendants, Standard/GAF
Raza Rasheed, Esq. Energy
Skadden, Arps, Slate, Meagher & Flom LLP
300 S. Grand Avenue, Suite 3400 Via Electronic Service
Los Angeles, CA 90071
E-mail: atabaie@skadden.com
raza.rasheed@skadden.com
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Dated: August 25, 2020 /s/_Jean Marie Reed
Jean Marie Reed
2
DM1\11368895.1
PROOF OF SERVICE
Preview
10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CV349042 Santa Clara — Civil Stephen H. Sutro (SBN 172168) Suzanne R. Fogarty (SBN 154319) Meghan C. Killian (SBN 310195) Duane Morris LLP One Market Plaza Spear Tower, Suite 2200 San Francisco, CA 94105 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 Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/25/2020 4:53 PM Reviewed By: S. Vera Case #19CV349042 Envelope: 4824699 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SUNPOWER CORPORATION, Plaintiff, v. MARTIN DEBONO; STANDARD INDUSTRIES INC.; GAF ENERGY; and DOES 1-100, Defendants. Case No. 19-CV-349042 DECLARATION OF SUZANNE R. FOGARTY IN SUPPORT OF SUNPOWER CORPORATION’S REPLY IN SUPPORT OF DEMURRER TO STANDARD INDUSTRIES INC.’S CROSS-COMPLAINT Date: September 1, 2020 Time: 9:00 a.m. Dept.: 21 Judge: Hon. Thang N. Barrett Complaint Filed: June 14, 2019 Cross-Complaint filed: March 30, 2020 .|Vera DECLARATION OF SUZANNE FOGARTY ISO REPLY, Case No. 19CV349042 DMI\11368550.110 11 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 I, Suzanne R. Fogarty, declare as follows: iF Tam an attorney duly licensed to practice in all of the courts of the State of California and am Special Counsel at Duane Morris LLP, attorney of record for Plaintiff SunPower Corporation (“SunPower”). I have personal knowledge of all matters stated herein. If called as a witness in this matter, I could and would competently testify thereto. 2. This declaration is submitted in support of SunPower’s Reply Brief in support of its Demurrer to Standard’s Cross-Complaint. 3. A true and correct copy of the June 1, 2020 Arbitration Order dismissing Gabriela Bunea’s Counter-Claim based on Section 17200 in SunPower Corporation v. Gabriela Bunea — AAA Case 01-19-0003-9663 is attached Ex. A. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 25, 2020 in San Francisco, California. Suzanne RK Fagarty Suzanne Ryder Fogarty 2 DECLARATION OF SUZANNE FOGARTY ISO REPLY, Case No. 19CV349042AMERICAN ARBITRATION ASSOCIATION EMPLOYMENT ARBITRATION TRIBUNAL SUNPOWER CORPORATON, Claimant and Counter-Respondent, Case No. 01-19-0003-9663 ORDER RE SUNPOWER’S MOTION TO GABRIELA BUNEA, DISMISS AMENDED COUNTERCLAIM Respondent and Counter-Claimant. I. INTRODUCTION Respondent Dr. Bunea (“Respondent” or “Dr. Bunea”) filed an Amended Counterclaim after the Arbitrator dismissed her Counterclaim and granted her leave to amend. In her Amended Counterclaim, Dr. Bunea asserts a cause of action for Declaratory Relief, seeking a Declaration of the parties’ rights and obligations under the 2002 Employee Nondisclosure Agreement (the “Agreement”), and a cause of action for Unfair Competition pursuant to Cal. Bus. and Prof. Code § 17200, based on SunPower’s alleged violation of Cal. Bus. and Prof. Code § 16600. SunPower moved to dismiss the Amended Counterclaim on a number of grounds, including that there is no actual controversy to resolve, and that Respondent’s affirmative defenses are coextensive with her Amended Counterclaim. SunPower also moved to dismiss the § 17200 cause of action because the Agreement does notcontravene § 16600, upon which the violation of § 17200 is predicated. Further, SunPower contends that Dr. Bunea’s Prayer for Relief seeks impermissible remedies. In the alternative, SunPower moves to strike the allegations in the Amended Counterclaim concerning the solicitation of Sunpower employees. The parties fully briefed the Motion, and on May 29, 2020, held a telephonic hearing in front of the Arbitrator. Stephen Sutro, Suzanne Fogarty and Brad Thompson of Duane Morris, LLP appeared for SunPower. Jennifer Rappaport of SunPower also appeared. Kevin Minnick, Dolly Hansen and Matt Umhofer of Spertus, Landes & Umhofer LLC appeared for Dr. Bunea. For the following reasons, SunPower’s Motion to Dismiss is GRANTED. I. ANALYSIS A. Declaratory Relief Standard. Cal. Code of Civil Procedure § 1060 provides that declaratory relief only is appropriate only where there is an “actual controversy.” Cal. Code of Civil Procedure § 1061 provides that a court (here the Arbitral Tribunal) “may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” As explained below, because there is no actual controversy about the rights and obligations of the parties under the Agreement, a declaration of those rights and obligations is not necessary or proper.B. There is no Actual Controversy About Dr. Bunea’s Rights and Duties Under the Agreement. The Agreement provides, in pertinent part, that: 1. CONFIDENTIALITY a. “Confidential Information” means any SunPower proprietary information, technical data, trade secrets or know-how, including, but not limited tom (sic) research, product plans, products, services, suppliers, supplier lists, customers, customer lists, markets, software, development inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by SunPower either directly or indirectly in writing, orally, or by drawings or inspection of parts or equipment. b. Employee will not, during or subsequent to the term of this Agreement, use SunPower’s Confidential Information for any purpose whatsoever other than the performance of his(her) responsibilities as an employee of SunPower or disclose SunPower’s Confidential Information to any third party, and it is understood and agreed that said Confidential Information shall remain the sole property of SunPower. The Agreement contains none of the covenants that courts have found violative of Cal. Bus. & Prof. Code § 16600. It does not contain a non-compete, which the California Supreme Court has held to be unlawful. See Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 946 (2008). Nor does it contain a non-solicitation clause, which has been found to violate § 16600. See AVN Healthcare v. Aya Healthcare Serv., Inc., 28 Cal. App. Sth 923 (2018); The Ret. Grp. v. Galante, 176 Cal. App. 4th 1226, 1241 (2009). The Agreement does not prohibit Dr. Bunea from using publicly available information. Nor is there anything in the Agreement that restricts Dr. Bunea for working for Standard/GAF Energy based on inevitable disclosure.Although Dr. Bunea appeared to argue in her Opposition to the Motion to Dismiss that § 16600 does not countenance any restrictions on the use of confidential or proprietary information that is not a trade secret, she appeared to abandon that position at the hearing, and correctly so. California courts have recognized and upheld the right of companies to protect their confidential and proprietary information. See Jenni Rivera Enterprises, LLC v. Latin World Entm’t Holdings, Inc., 36 Cal. App. 5th 766, 783 (2019), Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 1519 (1997). In sum, there is no controversy about Dr. Bunea’s rights and duties under the Agreement. Accordingly, there is nothing for this Tribunal to adjudicate with respect to the Declaratory Relief Cause of Action. C. Dr. Bunea’s Action for Declaratory Relief is Coextensive With Her Declaratory Relief Cause of Action. Where a party’s counterclaim for declaratory relief raises the same issues as her affirmative defenses, California courts have found it proper, and at times necessary, to dismiss the counterclaim. See C.J.L. Construction, Inc. v. Universal Plumbing, 18 Cal. App. 4th 376, 391 (1993). The district court in Applied Materials Inc. v. Advanced Micro-Fabrication Equipment (Shanghai), a decision relied upon by Dr. Bunea, reached the opposite conclusion, i.e., it allowed a declaratory relief counterclaim to proceed in the face of the argument that it duplicated “facts already at issue” in the case. /d., No. C 07-05248 JW, 2008 WL 11398914, at * 2 (N.D. Cal. 2008). However, Applied Materials analyzed the U.S. Declaratory Judgment Act, not the Cal. Code of Civil Procedure. More importantly, Dr. Bunea’s counterclaim does not duplicate “facts already at issue” in SunPower’s Demand, but her own affirmative defenses.By asserting her affirmative defenses, Dr. Bunea will have the opportunity to present the defense that, despite the fact that the Agreement does not prevent her from working at Standard/GAF Energy, SunPower’s actions (including the January 18, 2019 preservation letter) amounted to a violation of the Inevitable Disclosure Doctrine (Twelfth Affirmative Defense). She can also present evidence that any information she used was not confidential because the Agreement’s definition of confidentiality is overbroad (Thirteenth Affirmative Defense). And she can present evidence that any information she may have used is in the public domain or generally known in the industry (Twenty-First and Twenty-Third Affirmative Defenses). At the hearing, Dr. Bunea asserted that the declaratory relief cause of action should be sustained because, should SunPower’s breach of contract claim fail, she will not have the remedy of understanding her prospective rights and obligations under the Agreement. This argument is not well taken. The Agreement is clear on its face: it does not prohibit solicitation of SunPower employees, or the use of publicly available information, and it does not prohibit Dr. Bunea from working for a competitor because of inevitable disclosure. What Dr. Bunea appears to seek in her Declaratory Relief cause of action is an analysis of what might potentially violate the Agreement in the future. But it would be impossible to foresee every future use of information which could potentially implicate the Agreement, short of engaging in speculation and conjecture. Cal. Code of Civil Procedure § 1060 does not permit actions that are “conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court.” Lee v. Silveira, 6 Cal. App. Sth 527, 546 (2016). For all of these reasons, the cause of action for Declaratory Relief fails.D. The Cause of Action for a Violation of Section 17200 Fails. Dr. Bunea’s cause of action for a violation of Cal. Bus. & Prof. Code § 17200 is derivative of and based entirely on her allegation that the Agreement contravenes § 16600. Having found that nothing in the Agreement runs afoul of § 16600, no predicate remains that is necessary to establish a cause of action for a violation of § 17200. See Darush v. Revision LP, No. 12-cv-10296, 2013 U.S. Dist. LEXIS 60084, at *18-19 (C.D. Cal. Apr. 10, 2013) (“When a statutory claim fails, a derivative UCL claim also fails.” (quoting Alesick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176, 1184 (2012)), Il. CONCLUSION Dr. Bunea’s Amended Counterclaim is hereby DISMISSED without leave to amend. Her Amended Denial, Response and Affirmative Defenses, without the Amended Counterclaim, shall be filed and served no later than 5 p.m. on June 12, 2020. Pursuant to AAA Commercial Rule 47 (d) (ii), Dr. Bunea may request an award of attorneys’ fees when she files her amended responsive pleading. IT IS SO ORDERED. June 1, 2020 ViAtA 2A Dana Welch ArbitratorwoHN PROOF 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: DECLARATION OF SUZANNE R. FOGARTY IN SUPPORT OF SUNPOWER CORPORATION’S REPLY IN SUPPORT OF DEMURRER TO STANDARD INDUSTRIES INC.’S CROSS-COMPLAINT x BY ELECTRONIC SERVICE: VIA E-Service by vendor Nationwide Legal LLC on all counsel on August 25, 2020. Jonathan 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 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 Caroline. VanNess@skadden.com Michelle.Kao@skadden.com Counsel for Defendant, Martin DeBono Via Electronic Service Counsel for Defendant, Martin DeBono Via Electronic Service Counsel for Defendants, Standard/GAF Energy Via Electronic Service DM1\11368895.1 PROOF OF SERVICEAbraham A. Tabaie, Esq. Counsel for Defendants, Standard/GAF Raza Rasheed, Esq. Energy Skadden, Arps, Slate, Meagher & Flom LLP 300 S. Grand Avenue, Suite 3400 Via Electronic Service Los Angeles, CA 90071 E-mail: atabaie@skadden.com raza.rasheed@skadden.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: August 25, 2020 /s/_Jean Marie Reed Jean Marie Reed 2 DM1\11368895.1 PROOF OF SERVICE