Preview
NICOLE PHILLIS (SBN 291266)
nicolephillis@dwt.com
HEATHER CANNER (SBN 292837)
heathercanner@dwt.com
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa St., Suite 2400
Los Angeles, California 90017-2566
Telephone: (213) 633-6800
Facsimile: (213) 633-6899
JEREMY MERKELSON (pro hac vice)
jeremymerkelson@dwt.com
DAVIS WRIGHT TREMAINE LLP
1301 K Street NW, Suite 500 East
Washington, D.C. 20005
Telephone: (202) 973-4260
Facsimile: (202) 973-4472
Attorneys for Plaintiff TRACE3, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
TRACE3, LLC, a California limited liability Case No. 23CV415833
corporation, Assigned to Hon. Sunil R. Kulkarni
Plaintiff, DECLARATION OF NICOLE S. PHILLIS
IN SUPPORT OF TRACE3’S OPPOSITION
vs. TO SYCOMP AND THE INDIVIDUAL
DEFENDANTS’ DEMURRERS TO
SYCOMP A TECHNOLOGY COMPANY, TRACE3’S FIRST AMENDED
INC., a California corporation; TIMOTHY COMPLAINT
CORDELL, an individual; GEOFFREY
PETERSON, an individual; DEVIN TOMCIK, Date: December 15, 2023
an individual; JOHN BARNES, an individual; Time: 9:00 a.m.
and DOES 1-10, inclusive; Dept:
Defendants.
Action Filed: May 12, 2023
Amended Complaint Filed: October 6, 2023
RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566
SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800
Fax: (213) 633-6899
DECLARATION OF NICOLE S. PHILLIS
I, Nicole S. Phillis, declare as follows:
1. I am over the age of eighteen and competent to make this declaration. I am a
partner at the law firm of Davis Wright Tremaine LLP, counsel of record for Plaintiff Trace3,
LLC (“Trace3”) in this action. I have personal knowledge of the facts set forth herein, which are
known by me to be true and correct, and if called as a witness, I could and would competently
testify thereto.
2. This declaration is being submitted in support of Trace3’s Opposition to
Defendant Sycomp A Technology Company, Inc.’s (“Sycomp”) Demurrer to Trace3’s First
10 Amended Complaint and Trace3’s Opposition to the Individual Defendants Timothy Cordell,
11 Devin Tomcik, Geoffrey Peterson, and John Barnes’ (“Individual Defendants”) Demurrer to
12 Trace3’s First Amended Complaint.
13 3. Attached as Exhibit A is a true and correct copy of the correspondence from
14 Trace3 dated September 18, 2023, in which counsel for Sycomp refused to telephonically meet
15 and confer with Trace3 before Trace3 filed its First Amended Complaint on October 6,
16 characterizing such efforts as “needless back and forth” and “a waste of our time and
17 resources.”
18 4. On October 13, 2023, Trace3 met and conferred with counsel for Sycomp
19 regarding the bases for its demurrer. During that conferral, counsel for the Individual Defendants
20 was not present, nor was it discussed that Sycomp would join in the Individual Defendants’
21 demurrer.
22 5. On October 18, 2023, I met and conferred with counsel for the Individual
23 Defendants regarding the bases for their demurrer. During that phone call, the parties primarily
24 discussed the discovery dispute and motion to compel deadlines, with an extremely limited
25 discussion of the Individual Defendants’ bases for demurrer. Counsel for the Individual
26 Defendants only conferred on Trace3’s claim for breach of the implied covenant and CUTSA
27 preemption of COAs 4-12. Trace3 learned for the first time the Individual Defendants’ many
28 other purported bases for demurrer upon service of the pleading.
AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566
SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800
Fax: (213) 633-6899
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed November 16, 2023, at Los Angeles, California.
Nicole S. Phillis
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AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566
SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800
Fax: (213) 633-6899
EXHIBIT A
Phillis, Nicole
From: Barzelay, Jeanette
Sent: Monday, September 18, 2023 11:17 AM
To: Phillis, Nicole; Dharnidharka, Rajiv; Chavin, Micah
Cc: Merkelson, Jeremy; Gruber, Marina; Canner, Heather
Subject: RE: Trace3/Sycomp - Request to Meet and Confer
[EXTERNAL]
Nicole,
Our posi on with respect to the opera ve complaint is clear, but we will restate it yet again. As I said in my email, the
grounds on which we would demur to the currently opera ve complaint are that “Trace3’s non-trade secret
misappropria on claims against Sycomp are preempted/superseded under CUTSA.” In other words, we have already
stated that we would demur not just to the UCL claim but to all non-trade secret misappropria on claims asserted
against Sycomp because all of those claims are preempted under CUTSA, as confirmed by the cases we have repeatedly
cited. See, e.g., K.C. Mul media, Inc. v. Bank of Am. Tech. & Opera ons, Inc., 171 Cal. App. 4th 939, 957-58 (2009)
(holding that CUTSA “preempts common law claims that are ‘based on the same nucleus of facts as the misappropria on
of trade secrets claim for relief,’” including “interference with contract”); Swarmify, Inc. v. Cloudflare, Inc., 2018 WL
1609379, at *3 (N.D. Cal. Apr. 3, 2018) (CUTSA “supersedes claims based on the same nucleus of facts as trade secret
misappropria on”).
The only reason our briefing to date has focused on the UCL claim is because Trace3’s TRO was based on only the trade
secret misappropria on and UCL claims and did not specifically address the claims against Sycomp for inten onal
inference with contractual rela ons, inten onal interference with prospec ve economic advantage, negligent
interference with contractual rela ons, or negligent interference with prospec ve economic advantage. To reiterate,
these claims also are preempted under CUTSA because they are dependent on the alleged trade secret
misappropria on, for the reasons we have stated and as set forth in the case law.
Trace3’s insistence that we engage in needless back and forth when our posi on is clear—as even Judge Kulkarni agreed
at last week’s CMC—and Trace3 has already indicated an intent to amend is a waste of our me and resources (while
you simultaneously accuse us of churning fees). We do not intend to engage further on this.
Thanks,
Jeane e
From: Phillis, Nicole
Sent: Monday, September 18, 2023 9:05 AM
To: Barzelay, Jeanette ; Dharnidharka, Rajiv
; Chavin, Micah
Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather
Subject: RE: Trace3/Sycomp - Request to Meet and Confer
EXTERNAL MESSAGE
Jeane e,
1
I hope you had a nice weekend.
Sycomp has repeatedly stated its intent to demur to the current, opera ve Complaint. We are not asking you to confer
on ma ers pertaining to an unfiled pleading. It is our understanding that Sycomp will only be demurring to the UCL
claim in the opera ve complaint on CUTSA grounds, yet in Court on Thursday at the CMC, Mr. Dharnidharka indicated
that Sycomp would demur to all of the other causes of ac on except the trade secrets claim. Could you please confirm
whether Sycomp contends whether any other claims aside from the UCL are subject to demurrer?
As you know, under California law affords Trace3 one opportunity to amend as a ma er of right (i.e., without leave of
court), up un l the opposi on deadline for the demurrer. (CCP 472(a).) Trace3 is not inclined to use that amendment
without the benefit of a conferral with Sycomp to understand its grounds for demurrer. The Court’s decision to set a
date for amendment by October 6 is not an order that Trace3 must amend prior to any conferral with Sycomp on its
demurrer or that Trace3 must so amend if Sycomp refuses. If Trace3 proceeds without understanding Sycomp’s basis
for demurrer, and the alleged deficiencies persist in the Amended Complaint, Trace3 will be forced to brief those issues
to the Court when they could have been resolved without mo on prac ce through the conferral and amendment
process. That does not seem to be in the interests of judicial economy or efficiency, and we are concerned about the
delay that may result from such a cadence.
In light of these concerns, is Sycomp willing to reconsider its posi on and confer with us about its an cipated
demurrer?
Please let us know as soon as possible, so we can confer with our client and make a decision as to whether Trace3 will
amend before October 6 or not.
Nicole
Nicole Phillis
Partner, Davis Wright Tremaine LLP
P 213.633.8657 C 323.401.0474 E nicolephillis@dwt.com
A 865 South Figueroa Street, Suite 2400, Los Angeles, CA 90017-2566
DWT.COM
From: Barzelay, Jeanette
Sent: Friday, September 15, 2023 3:57 PM
To: Phillis, Nicole ; Dharnidharka, Rajiv ; Chavin, Micah
Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather
Subject: RE: Trace3/Sycomp - Request to Meet and Confer
[EXTERNAL]
Nicole,
Sycomp is not under any current obligation to meet and confer pursuant to Section 430.41(a). That section requires a
demurring party to meet and confer “with the party who filed the pleading that is subject to demurrer” to determine
whether any objections can be resolved. It also expressly provides that if an amended complaint is filed, that triggers an
obligation to meet and confer “before filing a demurrer to the amended pleading.” As Trace3 is going to amend its
complaint on or before October 6 as ordered, there is no point meeting and conferring about the existing complaint,
which will be superseded when the amendment is filed. Once Trace3 files its new operative complaint, we will comply
with any statutory obligations we may have.
2
Further, as we discussed and as Judge Kulkarni agreed at yesterday’s CMC, the issues Sycomp intends to raise in any
demurrer are well-known to the Court and the parties and concern the legal issue that Trace3’s non-trade secret
misappropriation claims against Sycomp are preempted/superseded under CUTSA. We direct you again to the
authorities we have repeatedly cited on these points. See, e.g., K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations,
Inc., 171 Cal. App. 4th 939, 957-58 (2009); Mattel, Inc. v. MGA Ent., Inc., 782 F. Supp. 2d 911, 985-87, 999 (C.D. Cal.
2011); Swarmify, Inc. v. Cloudflare, Inc., 2018 WL 1609379, at *3 (N.D. Cal. Apr. 3, 2018). If Trace3’s amended complaint
pleads any claims against Sycomp that are not preempted under CUTSA, then we will address that in any pre-demurrer
meet and confer once ripe.
Thanks,
Jeanette
From: Phillis, Nicole
Sent: Thursday, September 14, 2023 4:34 PM
To: Dharnidharka, Rajiv ; Barzelay, Jeanette
; Chavin, Micah
Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather
Subject: Trace3/Sycomp - Request to Meet and Confer
EXTERNAL MESSAGE
Counsel,
I am wri ng to request to meet and confer with Sycomp as required under CCP 430.41(a)(1). Specifically, we request
that Sycomp “iden fy all of the specific causes of ac on that it believes are subject to demurrer and iden fy with legal
support the basis of the deficiencies” as required under CCP 430.41. We request to meet and confer with Sycomp
regarding this no later than September 22, 2023 in light of the Court’s guidance at today’s CMC.
Please let me know if any of the below mes work for you:
9/18: 1-3 PM PT
9/19: 10 AM – 12 PM PT; 2-4 PM PT
9/20: 1-4 PM PT
9/21: 2:30 – 4 PM PT
9/22: 9-11 AM; 1-3 PM PT
Thank you and I look forward to our conferral.
Nicole
Nicole Phillis
Partner | Davis Wright Tremaine LLP
P 213.633.8657 C 323.401.0474 E nicolephillis@dwt.com
A 865 South Figueroa Street, Suite 2400, Los Angeles, CA 90017-2566
DWT.COM
The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure,
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The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended
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4
PROOF OF SERVICE
(EService Agreement)
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 865 S. Figueroa Street, Suite 2400,
Los Angeles, CA 90017.
On November 17, 2023, I served the document described as DECLARATION OF NICOLE S.
PHILLIS IN SUPPORT OF TRACE3’S OPPOSITION TO SYCOMP AND THE
INDIVIDUAL DEFENDANTS’ DEMURRERS TO TRACE3’S FIRST AMENDED
COMPLAINT upon the interested parties in this action addressed as follows:
Rajiv Dharnidharka Attorneys for Defendant
Jeanette Barzelay SYCOMP A TECHNOLOGY COMPANY, INC.
Micah Chavin
Erin Heiferman
DLA Piper
10 3203 Hanover Street, Suite 100
Palo Alto, CA 94304-1123
11 Tel: 650-833-2000
Email: Rajiv.Dharnidharka@us.dlapiper.com
12 Jeanette.barzelay@us.dlapiper.com
Micah.Chavin@us.dlapiper.com
13 Erin.Heiferman@us.dlapiper.com
Lyn Agre Attorneys for Individual Defendants
14 Edward Shapiro TIMOTHY CORDELL, GEOFFREY
Lesa Libatique (Paralegal) PETERSON, DEVIN TOMCIK and JOHN
15 Glenn Agre Bergman & Fuentes
44 Montgomery Street, Suite 2410 BARNES
16 San Francisco, CA 94104
Telephone: 415.599.0880
17 E-Mail: lagre@glennagre.com
eshapiro@glennagre.com
18 llibatique@glennagre.com
Megan M. Reilly (Pro Hac Vice) Attorney for Individual Defendants
19 Glenn Agre Bergman & Fuentes LLP TIMOTHY CORDELL, GEOFFREY
1185 Avenue of the Americas, 22nd Floor PETERSON, DEVIN TOMCIK and JOHN
20 New York, New York 10036-2603
Telephone: (516) 551-4895 BARNES
21 Mail: mreilly@glennagre.com
22 X (VIA EMAIL) By forwarding a portable document file to the electronic mail address(es)
below from electronic mail address lisahernandez@dwt.com, at Suite 2400, 865 South
23
Figueroa Street, Los Angeles, California.
24
Executed on November 17, 2023, Los Angeles, California.
25 X (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
26
Lisa Hernandez
27
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AVIS RIGHT REMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566
SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800
Fax: (213) 633-6899
Preview
NICOLE PHILLIS (SBN 291266) nicolephillis@dwt.com HEATHER CANNER (SBN 292837) heathercanner@dwt.com DAVIS WRIGHT TREMAINE LLP 865 S. Figueroa St., Suite 2400 Los Angeles, California 90017-2566 Telephone: (213) 633-6800 Facsimile: (213) 633-6899 JEREMY MERKELSON (pro hac vice) jeremymerkelson@dwt.com DAVIS WRIGHT TREMAINE LLP 1301 K Street NW, Suite 500 East Washington, D.C. 20005 Telephone: (202) 973-4260 Facsimile: (202) 973-4472 Attorneys for Plaintiff TRACE3, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA TRACE3, LLC, a California limited liability Case No. 23CV415833 corporation, Assigned to Hon. Sunil R. Kulkarni Plaintiff, DECLARATION OF NICOLE S. PHILLIS IN SUPPORT OF TRACE3’S OPPOSITION vs. TO SYCOMP AND THE INDIVIDUAL DEFENDANTS’ DEMURRERS TO SYCOMP A TECHNOLOGY COMPANY, TRACE3’S FIRST AMENDED INC., a California corporation; TIMOTHY COMPLAINT CORDELL, an individual; GEOFFREY PETERSON, an individual; DEVIN TOMCIK, Date: December 15, 2023 an individual; JOHN BARNES, an individual; Time: 9:00 a.m. and DOES 1-10, inclusive; Dept: Defendants. Action Filed: May 12, 2023 Amended Complaint Filed: October 6, 2023 RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566 SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800 Fax: (213) 633-6899 DECLARATION OF NICOLE S. PHILLIS I, Nicole S. Phillis, declare as follows: 1. I am over the age of eighteen and competent to make this declaration. I am a partner at the law firm of Davis Wright Tremaine LLP, counsel of record for Plaintiff Trace3, LLC (“Trace3”) in this action. I have personal knowledge of the facts set forth herein, which are known by me to be true and correct, and if called as a witness, I could and would competently testify thereto. 2. This declaration is being submitted in support of Trace3’s Opposition to Defendant Sycomp A Technology Company, Inc.’s (“Sycomp”) Demurrer to Trace3’s First 10 Amended Complaint and Trace3’s Opposition to the Individual Defendants Timothy Cordell, 11 Devin Tomcik, Geoffrey Peterson, and John Barnes’ (“Individual Defendants”) Demurrer to 12 Trace3’s First Amended Complaint. 13 3. Attached as Exhibit A is a true and correct copy of the correspondence from 14 Trace3 dated September 18, 2023, in which counsel for Sycomp refused to telephonically meet 15 and confer with Trace3 before Trace3 filed its First Amended Complaint on October 6, 16 characterizing such efforts as “needless back and forth” and “a waste of our time and 17 resources.” 18 4. On October 13, 2023, Trace3 met and conferred with counsel for Sycomp 19 regarding the bases for its demurrer. During that conferral, counsel for the Individual Defendants 20 was not present, nor was it discussed that Sycomp would join in the Individual Defendants’ 21 demurrer. 22 5. On October 18, 2023, I met and conferred with counsel for the Individual 23 Defendants regarding the bases for their demurrer. During that phone call, the parties primarily 24 discussed the discovery dispute and motion to compel deadlines, with an extremely limited 25 discussion of the Individual Defendants’ bases for demurrer. Counsel for the Individual 26 Defendants only conferred on Trace3’s claim for breach of the implied covenant and CUTSA 27 preemption of COAs 4-12. Trace3 learned for the first time the Individual Defendants’ many 28 other purported bases for demurrer upon service of the pleading. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566 SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800 Fax: (213) 633-6899 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed November 16, 2023, at Los Angeles, California. Nicole S. Phillis 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566 SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800 Fax: (213) 633-6899 EXHIBIT A Phillis, Nicole From: Barzelay, Jeanette Sent: Monday, September 18, 2023 11:17 AM To: Phillis, Nicole; Dharnidharka, Rajiv; Chavin, Micah Cc: Merkelson, Jeremy; Gruber, Marina; Canner, Heather Subject: RE: Trace3/Sycomp - Request to Meet and Confer [EXTERNAL] Nicole, Our posi on with respect to the opera ve complaint is clear, but we will restate it yet again. As I said in my email, the grounds on which we would demur to the currently opera ve complaint are that “Trace3’s non-trade secret misappropria on claims against Sycomp are preempted/superseded under CUTSA.” In other words, we have already stated that we would demur not just to the UCL claim but to all non-trade secret misappropria on claims asserted against Sycomp because all of those claims are preempted under CUTSA, as confirmed by the cases we have repeatedly cited. See, e.g., K.C. Mul media, Inc. v. Bank of Am. Tech. & Opera ons, Inc., 171 Cal. App. 4th 939, 957-58 (2009) (holding that CUTSA “preempts common law claims that are ‘based on the same nucleus of facts as the misappropria on of trade secrets claim for relief,’” including “interference with contract”); Swarmify, Inc. v. Cloudflare, Inc., 2018 WL 1609379, at *3 (N.D. Cal. Apr. 3, 2018) (CUTSA “supersedes claims based on the same nucleus of facts as trade secret misappropria on”). The only reason our briefing to date has focused on the UCL claim is because Trace3’s TRO was based on only the trade secret misappropria on and UCL claims and did not specifically address the claims against Sycomp for inten onal inference with contractual rela ons, inten onal interference with prospec ve economic advantage, negligent interference with contractual rela ons, or negligent interference with prospec ve economic advantage. To reiterate, these claims also are preempted under CUTSA because they are dependent on the alleged trade secret misappropria on, for the reasons we have stated and as set forth in the case law. Trace3’s insistence that we engage in needless back and forth when our posi on is clear—as even Judge Kulkarni agreed at last week’s CMC—and Trace3 has already indicated an intent to amend is a waste of our me and resources (while you simultaneously accuse us of churning fees). We do not intend to engage further on this. Thanks, Jeane e From: Phillis, Nicole Sent: Monday, September 18, 2023 9:05 AM To: Barzelay, Jeanette ; Dharnidharka, Rajiv ; Chavin, Micah Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather Subject: RE: Trace3/Sycomp - Request to Meet and Confer EXTERNAL MESSAGE Jeane e, 1 I hope you had a nice weekend. Sycomp has repeatedly stated its intent to demur to the current, opera ve Complaint. We are not asking you to confer on ma ers pertaining to an unfiled pleading. It is our understanding that Sycomp will only be demurring to the UCL claim in the opera ve complaint on CUTSA grounds, yet in Court on Thursday at the CMC, Mr. Dharnidharka indicated that Sycomp would demur to all of the other causes of ac on except the trade secrets claim. Could you please confirm whether Sycomp contends whether any other claims aside from the UCL are subject to demurrer? As you know, under California law affords Trace3 one opportunity to amend as a ma er of right (i.e., without leave of court), up un l the opposi on deadline for the demurrer. (CCP 472(a).) Trace3 is not inclined to use that amendment without the benefit of a conferral with Sycomp to understand its grounds for demurrer. The Court’s decision to set a date for amendment by October 6 is not an order that Trace3 must amend prior to any conferral with Sycomp on its demurrer or that Trace3 must so amend if Sycomp refuses. If Trace3 proceeds without understanding Sycomp’s basis for demurrer, and the alleged deficiencies persist in the Amended Complaint, Trace3 will be forced to brief those issues to the Court when they could have been resolved without mo on prac ce through the conferral and amendment process. That does not seem to be in the interests of judicial economy or efficiency, and we are concerned about the delay that may result from such a cadence. In light of these concerns, is Sycomp willing to reconsider its posi on and confer with us about its an cipated demurrer? Please let us know as soon as possible, so we can confer with our client and make a decision as to whether Trace3 will amend before October 6 or not. Nicole Nicole Phillis Partner, Davis Wright Tremaine LLP P 213.633.8657 C 323.401.0474 E nicolephillis@dwt.com A 865 South Figueroa Street, Suite 2400, Los Angeles, CA 90017-2566 DWT.COM From: Barzelay, Jeanette Sent: Friday, September 15, 2023 3:57 PM To: Phillis, Nicole ; Dharnidharka, Rajiv ; Chavin, Micah Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather Subject: RE: Trace3/Sycomp - Request to Meet and Confer [EXTERNAL] Nicole, Sycomp is not under any current obligation to meet and confer pursuant to Section 430.41(a). That section requires a demurring party to meet and confer “with the party who filed the pleading that is subject to demurrer” to determine whether any objections can be resolved. It also expressly provides that if an amended complaint is filed, that triggers an obligation to meet and confer “before filing a demurrer to the amended pleading.” As Trace3 is going to amend its complaint on or before October 6 as ordered, there is no point meeting and conferring about the existing complaint, which will be superseded when the amendment is filed. Once Trace3 files its new operative complaint, we will comply with any statutory obligations we may have. 2 Further, as we discussed and as Judge Kulkarni agreed at yesterday’s CMC, the issues Sycomp intends to raise in any demurrer are well-known to the Court and the parties and concern the legal issue that Trace3’s non-trade secret misappropriation claims against Sycomp are preempted/superseded under CUTSA. We direct you again to the authorities we have repeatedly cited on these points. See, e.g., K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939, 957-58 (2009); Mattel, Inc. v. MGA Ent., Inc., 782 F. Supp. 2d 911, 985-87, 999 (C.D. Cal. 2011); Swarmify, Inc. v. Cloudflare, Inc., 2018 WL 1609379, at *3 (N.D. Cal. Apr. 3, 2018). If Trace3’s amended complaint pleads any claims against Sycomp that are not preempted under CUTSA, then we will address that in any pre-demurrer meet and confer once ripe. Thanks, Jeanette From: Phillis, Nicole Sent: Thursday, September 14, 2023 4:34 PM To: Dharnidharka, Rajiv ; Barzelay, Jeanette ; Chavin, Micah Cc: Merkelson, Jeremy ; Gruber, Marina ; Canner, Heather Subject: Trace3/Sycomp - Request to Meet and Confer EXTERNAL MESSAGE Counsel, I am wri ng to request to meet and confer with Sycomp as required under CCP 430.41(a)(1). Specifically, we request that Sycomp “iden fy all of the specific causes of ac on that it believes are subject to demurrer and iden fy with legal support the basis of the deficiencies” as required under CCP 430.41. We request to meet and confer with Sycomp regarding this no later than September 22, 2023 in light of the Court’s guidance at today’s CMC. Please let me know if any of the below mes work for you: 9/18: 1-3 PM PT 9/19: 10 AM – 12 PM PT; 2-4 PM PT 9/20: 1-4 PM PT 9/21: 2:30 – 4 PM PT 9/22: 9-11 AM; 1-3 PM PT Thank you and I look forward to our conferral. Nicole Nicole Phillis Partner | Davis Wright Tremaine LLP P 213.633.8657 C 323.401.0474 E nicolephillis@dwt.com A 865 South Figueroa Street, Suite 2400, Los Angeles, CA 90017-2566 DWT.COM The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this 3 communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to postmaster@dlapiper.com. Thank you. The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to postmaster@dlapiper.com. Thank you. 4 PROOF OF SERVICE (EService Agreement) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 865 S. Figueroa Street, Suite 2400, Los Angeles, CA 90017. On November 17, 2023, I served the document described as DECLARATION OF NICOLE S. PHILLIS IN SUPPORT OF TRACE3’S OPPOSITION TO SYCOMP AND THE INDIVIDUAL DEFENDANTS’ DEMURRERS TO TRACE3’S FIRST AMENDED COMPLAINT upon the interested parties in this action addressed as follows: Rajiv Dharnidharka Attorneys for Defendant Jeanette Barzelay SYCOMP A TECHNOLOGY COMPANY, INC. Micah Chavin Erin Heiferman DLA Piper 10 3203 Hanover Street, Suite 100 Palo Alto, CA 94304-1123 11 Tel: 650-833-2000 Email: Rajiv.Dharnidharka@us.dlapiper.com 12 Jeanette.barzelay@us.dlapiper.com Micah.Chavin@us.dlapiper.com 13 Erin.Heiferman@us.dlapiper.com Lyn Agre Attorneys for Individual Defendants 14 Edward Shapiro TIMOTHY CORDELL, GEOFFREY Lesa Libatique (Paralegal) PETERSON, DEVIN TOMCIK and JOHN 15 Glenn Agre Bergman & Fuentes 44 Montgomery Street, Suite 2410 BARNES 16 San Francisco, CA 94104 Telephone: 415.599.0880 17 E-Mail: lagre@glennagre.com eshapiro@glennagre.com 18 llibatique@glennagre.com Megan M. Reilly (Pro Hac Vice) Attorney for Individual Defendants 19 Glenn Agre Bergman & Fuentes LLP TIMOTHY CORDELL, GEOFFREY 1185 Avenue of the Americas, 22nd Floor PETERSON, DEVIN TOMCIK and JOHN 20 New York, New York 10036-2603 Telephone: (516) 551-4895 BARNES 21 Mail: mreilly@glennagre.com 22 X (VIA EMAIL) By forwarding a portable document file to the electronic mail address(es) below from electronic mail address lisahernandez@dwt.com, at Suite 2400, 865 South 23 Figueroa Street, Los Angeles, California. 24 Executed on November 17, 2023, Los Angeles, California. 25 X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 26 Lisa Hernandez 27 28 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 DECLARATION OF NICOLE S. PHILLIS ISO TRACE3’S OPPOSITION TO LOS ANGELES, CALIFORNIA 90017-2566 SYCOMP & INDIVIDUAL DEFENDANTS’ DEMURRERS TO FAC (213) 633-6800 Fax: (213) 633-6899