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16CV301867
Santa Clara — Civil
TODD A. ROBERTS (SBN 129722) Electronically Filed
LAEL D. ANDARA (SBN 215416 by Superior Court of CA,
JENNIFER E. ACHESON (SBN 130833) County of Santa Clara,
DANIEL E. GAITAN (SBN 326413) on 3/4/2021 1:03 PM
ROPERS MAJESKI PC
1001 Marshall Street, Sth Floor
Reviewed By: R. Walker
Redwood City, CA 94063 Case #16CV301867
Telephone: 650.364.8200 Envelope: 5964836
Facsimile: 650.780.1701
Email: todd.roberts@ropers.com
lael.andara@ropers.com
jennifer.acheson@ropers.com
daniel.gaitan@ropers.com
Attorneys for Plaintiff and Cross-Defendant
SINCO TECHNOLOGIES PTE LTD
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA.
11 COUNTY OF SANTA CLARA
12
13 SINCO TECHNOLOGIES PTE LTD, Case No. 16CV301867
14 Plaintiff, SEPARATE STATEMENT OF
NB UNDISPUTED MATERIAL FACTS IN
Ob 5 v SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S
wu 16 XINGKE ELECTRONICS (DONGGUAN) MOTION FOR SUMMARY
CO., LTD.; XINGKE ELECTRONICS ADJUDICATION OF ISSUES
om 17 (HONG KONG) CO., LTD.; SINCOO
Ok 18
ELECTRONICS TECHNOLOGY CO.,
LIMITED.; JINLONG MACHINERY &
Date:
Time:
we June 10, 2021 at 1:30pm
Ye ELECTRONICS Co., LTD.; LIEW YEW Dept.: 1
9 SOON aka MARK LIEW; SINCO Judge: Honorable Sunil R. Kulkarni
ELECTRONICS (DONGGUAN) CO., LTD. 37
20 NG CHER YONG aka CY NG; MUI LIANG Action Filed: October 28, 2016
TJOA; JIN SHAO PING; XU SHUGONG; Trial Date: August 16, 2021
21 QUEK SEOW ENG and DOES 5 through 20, CMC: May 6, 2021
inclusive,
22
Defendants.
23
AND RELATED CROSS-ACTION
24
25
26
27
28
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4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Pursuant to Code of Civil Procedure section 437c (b), and California Rule of Court
3.1350, Plaintiff SINCO TECHNOLOGIES PTE LTD (“SINCO” or “Plaintiff’) hereby submits
the following Separate Statement of Undisputed Material Facts in Support of Adjudication as to
Plaintiffs First Cause of Action for Breach of Contract of the Fourth Amended Complaint filed
May 18, 2020 (“FAC”).
I. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FROM THE
FOURTH AMENDED COMPLAINT OF MAY 18, 2020.
ISSUE 1:
As TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT, THERE IS NO TRIABLE
ISSUE OF MATERIAL FACT THAT DEFENDANT MARK LIEW WAS EMPLOYED BY PLAINTIFF
SINCO FROM JUNE 6, 2013 TO MARCH 21, 2017 UNDER A WRITTEN CONTRACT SETTING
10
FORTH His DUTIES
11
Moving Party’s Undisputed Material Opposing Party’s Response and
12 Facts and Supporting Evidence: Supporting Evidence:
13 1 On June 6, 2013 Mr. Liew applied for
a position with SINCO as Engineering
14 Manager, wherein he acknowledged that
NB
he had previously been an employee of
Ob 5
SINCO from June 2006 to June 2012.
wu 16
Evidence:
om 17
Ok 18
. Employment Application of Mark
Liew. Declaration of Daniel E.
Ye Gaitan (““Gaitan Decl.”) Exhibit 8
9 at SINCO000016-21.
20
2. On June 10, 2013, Defendant Mark
21 Liew entered into an EMPLOYEMENT
AGREEMENT with SINCO
22 (“EMPLOYEMENT AGREEMENT”)
agreeing to all the terms and conditions of
23 the agreement
24 Evidence:
25
e EMPLOYEMENT AGREEMENT
26 of Mark Liew. Gaitan Decl
Exhibit 9 at SINCO00027-37.
27 Mark Liew’s Response to Request
for Admissions (“RFA”), Set Two,
28
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
Req. No. 62. Gaitan Decl Exhibit
38.
Mark Liew’s Response to Special
Interrogatories (“ROGS”), Set
One, Req. No. 10, 16, 19, 22, 25,
28, 31. 37, 40, 43. 46, 49, 52, 55,
61, 67, 102, 115, and 116. Gaitan
Decl Exhibit 11.
Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
Exhibit 16 at 24:13-16; 51:5-24;
55:19-22; 56:5-14; 62:20-63:15;
138:17-23; 206:9- 208:22 and
229:13-14.
10
SINCO’s Company Handbook-
11 Gaitan Decl Exhibit 51 at
SINCO576872-909.
12
3. On June 10, 2013, Defendant Mark
13 Liew agreed to abide by the terms and
conditions of the Staff Employment
14 Handbook.
NB
Ob 5
Evidence:
wu 16 e SINCO’s Company Handbook-
Gaitan Decl Exhibit 51 at
om 17 SINCO576872-909.
Ok 18
EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl
Ye Exhibit 9 at SINCO00027-37.
9
20
4, Signing the EMPLOYEMENT
21 AGREEMENT on June 10, 2013, Mr.
Liew was obligated to maintain SINCO’s
22 confidential and proprietary information,
as well as SINCO’s trade secrets.
23
24 Evidence:
e EMPLOYEMENT AGREEMENT
25 of Mark Liew. Gaitan Decl
Exhibit 9 at SINCO00027-37.
26
5. SINCO hired Mr. Liew on June 10,
27 2013, to represent SINCO, and oversee its
28
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
projects at the contract manufacturer in
China.
Evidence:
e Mark Liew’s Response to RFA Set
One, Req. No. 28, 2, 14, 17,.
Gaitan Decl Exhibit 10.
Mark Liew’s Response to Special
Interrogatories (“ROGS”), Set
One, Req. No. 10, 16, 19, 22, 25,
28, 31. 37, 40, 43. 46, 49, 52, 55,
61, 67, 102, 115, and 116. Gaitan
Decl Exhibit 11.
10 Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
11
Exhibit 16 at 24:13-16; 62:20-
12 63:15; 138:16-23; 206:9- 208:22
and 229:11-14.
13
6. Mr. Liew admitted he was hired to
14 oversee work done for SINCO at SinCo
NB
Electronics (Dongguan) Co. Ltd.,
Ob 5
(“XINGKE”) pursuant to the
wu 16 EMPLOYEMENT AGREEMENT dated
June 10, 2013, with SINCO.
om 17
Ok 18
Evidence:
Ye e Mark Liew’s Response to RFA,Set
9 One, Req. No. 28. Gaitan Decl
Exhibit 10.
20
Mark Liew’s Response to RFA,
21 Set Two, Req. No. 62. Gaitan Decl
Exhibit 38.
22 Mark Liew’s Response to Special
Interrogatories (“ROGS”), Set
23
One, Req. No. 10, 16, 19, 22, 25,
24 28, 31. 37, 40, 43. 46, 49, 52, 55,
61, 67, 102, 115, and 116. Gaitan
25 Decl Exhibit 11.
26 7. On March 3, 2017 Mr. Liew signed a
verification to his responses to ROGS Set
27 One wherein he testified “Responding
28 Party has acted at the direction of Plaintiff
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4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
pursuant to the Employment Agreement
and Plaintiff cannot now claim a breach of
contract when it was Plaintiff who
demanded the arrangement about which it
now complains.”
Evidence:
e Mark Liew’s Response to Special
Interrogatories (“ROGS”), Set
One, Req. No. 10, 16, 19, 22, 25,
28, 31. 37, 40, 43. 46, 49, 52, 55,
61, 67. Gaitan Decl Exhibit 11.
8. Mr. Liew testified that he acted at the
10 direction of SINCO pursuant to the
EMPLOYEMENT AGREEMENT dated
11
June 10, 2013, with SINCO.
12
Evidence:
13 . Mark Liew’s Response to ROGS,
Set One, Req. No. 10, 16, 19, 22,
NB
14 25, 28, 31, 37, 40, 43, 46, 49, 52,
55, 61, 64, and 67. Gaitan Decl
Ob 5
Exhibit 11.
wu 16
9. Mr. Liew’s EMPLOYEMENT
om 17 AGREEMENT dated June 10, 2013, was
Ok 18
with SINCO, and not XINGKE, and has
acknowledged that XINGKE was not a
Ye party to his EMPLOYEMENT
9
AGREEMENT.
20
Evidence:
21 e Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
22 Exhibit 16 at 59:18-61:7; 125:13-
14; and 126:12-127:20.
23
Mark Liew’s Response to Special
24 Interrogatories (“ROGS”), Set
One, Req. No. 10, 16, 19, 22, 25,
25 28, 31. 37, 40, 43. 46, 49, 52, 55,
61, 67, 102, 115, and 116. Gaitan
26 Decl Exhibit 11.
27 10. Pursuant to the EMPLOYEMENT
28 AGREEMENT dated June 10, 2013, Mr.
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
Liew also agreed to abide by specific
confidentiality obligations to SINCO.
Evidence:
. Employment Application of Mark
Liew. Gaitan Decl. Exhibit 8 at
SINCO000016-21.
EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl
Exhibit 9 at SINCO00027-37.
Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
Exhibit 16 at51:5-24; 55:19-22;
and 56:5-14.
10
11 11. The EMPLOYEMENT
AGREEMENT dated June 10, 2013,
12 included a Confidential Matters/Trade
Secrets at paragraph 16, that states:
13
“16. Confidential Matters/Trade Secrets
14
NB (a) As you are aware, you are prohibited
Ob 5 from misusing any confidential
information belonging to the SinCo
wu 16 Group. In addition to and without
prejudice to your existing duties of
om 17 confidentiality (whether arising under
Ok 18
statute, common law, equity or otherwise)
you agree to abide by the conditions set
Ye out in Schedule B regarding the use and
9 confidentiality of Restricted Information
and Restricted Materials belonging to the
20 SinCo Group.
21 LJ
22 (c) The obligations set out in Schedule B
shall survive any termination of your
23 employment howsoever arising and shall
continue for a period of five (5) years
24 from your last day of employment.”
25 Evidence:
26 e EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl-
27
Exhibit 9 at SINCO00027-37.
28
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4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
Exhibit 16 at 55:19-22.
12. Schedule B, section 2(b) to the
EMPLOYEMENT AGREEMENT dated
June 10, 2013, provided:
“not to make any commercial use [of
Restricted information]” and “not to use
the same for the benefit of [him]self or for
any third party[.]”
Evidence:
10 . EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl-
11
Exhibit 9 at SINCO00027-37.
12 Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
13 Exhibit 16 at 55:19-22 and
206:25- 207:11.
14
NB
13. Schedule B, section 4(b) to the
Ob 5
EMPLOYEMENT AGREEMENT dated
wu 16 June 10, 2013, provided that SINCO had
restricted information and materials and
om 17 that any breach of conditions in the
Ok 18
Schedule will result in irreparable harm
entitling SINCO to both monetary
Ye damages and/or equitable relief:
9
“You acknowledge that the SinCo Group
20
has developed or obtained the Restricted
Information and Restricted Materials
21
through the investment of significant time.
22 effort and expense and that the Restricted
Information and Restricted Materials
23 provide the SinCo Group with significant
advantages over its competitors. You
24
understand and agree that any breach of
the conditions in this Schedule will result
25
in irreparable harm to the SinCo Group
and that monetary damages may not be an
26 adequate remedy in the event of a breach
or threatened breach of the Schedule.
27 Accordingly, you agree that in the event
of a breach or threatened breach of the
28 conditions in this Schedule, any member
eae
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
of the SinCo Group shall be entitled to
eek equitable relief, including injunctiv:
elief and specific performance, 1
addition to all other remedies available in
law of equity.” (emphasis added.)
Evidence:
e EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl-
Exhibit 9 at SINCO00027-37.
Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
Exhibit 16 at 55:19-22 and
206:25- 207:11.
10
14. Under the terms of the
11
EMPLOYEMENT AGREEMENT dated
12 June 10, 2013, Liew was also
contractually prohibited from working for
13 both SINCO and a competitor
simultaneously:
14
NB
“You shall not engage in other
Ob 5 employment or work outside the Company
wu unless prior approval has been obtained
16 from the Company.”
om 17 Evidence:
Ok 18 . EMPLOYEMENT AGREEMENT
Ye of Mark Liew. Gaitan Decl-
9
Exhibit 9 at SINCO00027-37.
20 Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
21 Exhibit 16 at 55:19-22.
22 15. Mr. Liew acknowledged and admitted
23 that he received salary and employee
benefits from SINCO.
24
Evidence:
25
e Mark Liew’s Response to RFA,
26 Set One, Req. No. 2 and 17.
Gaitan Decl Exhibit 10.
27
28
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Mark Liew’s Response to ROGS,
Set One, Req. No. 102, 115 and
116. Gaitan Decl Exhibit 11.
Mark Liew’s Insurance Policy paid
by SINCO. Gaitan Decl Exhibit
22 at page 3 at SINCOS75097-
575104.
Mark Liew’s Pay Roll Report.
Gaitan Decl Exhibit 14 at
SINCO00042-83.
Mark Liew’s Performance
Appraisals Forms. Gaitan Decl
Exhibit 12.
10 Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
11 Exh it 16 at 46:6-12 ;130:5-12
and 164:2-9.
12 Deposition of Cy Ng dated
February, 2018 Gaitan Decl
13
Exhibit 13 at 97:8-11 and 101:11-
14 102:12.
Ob 5 16. Mark Liew was on SINCO’s payroll.
wu 16 Evidence:
om 17 . Mark Liew’s Pay Roll Report.
Ok 18
Gaitan Decl Exhibit 14 at
SINCO00042-83.
Ye . Mark Liew’s Response to RFA,
9
Set One, Req. No. 2 and 17.
20 Gaitan Decl Exhibit 10
21 17. On May 26, 2015, Jerry Darui (“Mr.
Darui”) in applying for a job at SINCO
22 confirmed that Mr. Liew was employee
for SINCO.
23
24 Evidence:
25 . Jerry Darui’s Employment
Application to SINCO. Gaitan
26 Decl Exhibit 20 at page 5 at
SINCO038298-303.
27
28
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4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
18. Mr. Liew identified SINCO under the
category of “WORK” on his “About Mark
Liew Yew Soon” page on Facebook.
Evidence:
e Mark Liew’s Facebook Profile.
Gaitan Decl Exhibit 52 at
SINCO000040-41
10 19. Mr. Liew created a Facebook post on
December 29, 2008 with the title “Boss
11 singing ‘Better Man’ 2 , which depicts an
image of Bryan Lim.
12
Evidence:
13
. Mark Liew’s Facebook Profile.
14
NB Gaitan Decl Exhibit 52 at
Ob 5 SINCO742600.
wu 16
20. On June 24, 2016, Mr. Liew
om 17 submitted a VISA application under
Ok 18
penalty of perjury, reaffirmed by his own
testimony, to the U.S. State Department
Ye identifying SINCO as his employer.
9
20 Evidence:
21 Deposition of Mark Liew dated
February 21, 2017, Gaitan Decl
22 Exhibit 17 at 321:18-322:6.
Online Non-immigrant Visa
23
Application by Liew Mark. Gaitan
24 Decl Exhibit 18 at Liew 000197-
203.
25 Mark Liew’s Response to RFA,
Set One, Req. No. 13 and 14.
26
Gaitan Decl Exhibit 10.
27 Mark Liew’s Response to RFA,
Set Two, Req. No. 69. Gaitan Decl
28 Exhibit 38.
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4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
21. On June 26, 2016 Mark Liew emailed
SINCO requesting that they would
approve a personal trip to the US.
Evidence:
e Mark Liew’s email to Cynthia.
Gaitan Decl Exhibit 21 at
SINCO001883212-213.
Deposition of Mark Liew dated
December 2, 2016 Gaitan Decl
Exhibit 16 at 65:3-13.
10 22. On June 26, 2016, Mark Liew
emailed SINCO stating “I need a letter to
11 prove I’m working and have proper
income” for his application for the US
12
VISA.
13
Evidence:
14
NB e Mark Liew’s email to Cynthia.
Ob 5 Gaitan Decl Exhibit 21 at
wu SINCO001883212-213.
16 Deposition of Mark Liew dated
om 17 December 2, 2016 Gaitan Decl
Exhibit 16 at 65:3-13.
Ok 18
Ye 23. Mr. Liew resigned from SINCO, the
9 first time on May 23, 2012, by a letter of
resignation directed and identifying Mr.
20 Ng as SINCO’s Engineering supervisor.
21
Evidence:
22
. Mark Liew’s first resignation.
23 Gaitan Decl Exhibit 23 at
SINCOQ000621-622.
24
24. On March 21, 2017, Mr. Liew
25 terminated his employment with SINCO
by signing a resignation letter which he
26
provided to SINCO employees by email.
27
Evidence
28
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Deposition of Cy Ng dated
February 12, 2018. Gaitan Decl
Exhibit 13 at 41:11-21.
Deposition of Mark Liew dated
March 08, 2018 Gaitan Decl
Exhibit 19 at 377:6-24.
25. On June 1, 2017, Judge Zayner signed
an Order granting a Preliminary Injunction
in this this action based on Mr. Liew’s
written EMPLOYEMENT AGREEMENT
with SINCO dated June 10, 2013.
Evidence
10 e Employment Application of Mark
Liew. Gaitan Decl. Exhibit 8 at
11
SINCO000016-21.
12 EMPLOYEMENT AGREEMENT
of Mark Liew. Gaitan Decl
13 Exhibit 9 at SINCO00027-37.
Judge Zayner’s Order granting an
14 Injunction against Mark Liew.
NB
5 Gaitan Decl. Exhibit 24,
Ob
wu 16 26. The Preliminary Injunction prohibited
Mr. Liew from using any of SINCO’s
om 17 trade secret information, passing himself
Ok 18
off as plaintiff SINCO, or from contacting
SINCO’s U.S. customers pursuant to his
Ye EMPLOYEMENT AGREEMENT dated
9
June 10, 2013, with SINCO.
20
Evidence
21
. Judge Zayner’s Order granting an
22 Injunction against Mark Liew.
Gaitan Decl. Exhibit 24 at 2:6-23
23
24 27. On January 2, 2019, this Court fined
Mr. Liew based on his signed stipulation
25 of contempt of the June 1, 2017,
Preliminary Injunction.
26
Evidence
27
28
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Contempt Order finding Mr. Liew
for still being in contact with
SINCO’s U.S. customers. Gaitan
Decl. Exhibit 15.
28. Mr. Liew stipulated to the terms of
the Protective Order and that he violated
section 5 of the June 1, 2017, Preliminary
Injunction in sending multiple emails
using the "sincocn.cn" domain provided
by XINGKE, three months after it had
publicly changed its name to “XINGKE”
in March of that year.
10
Evidence
11
e Contempt Order finding Mr. Liew
12
for still being in contact with
13 SINCO’s U.S. customers. Gaitan
Decl. Exhibit 15.
14
NB 29. Mr. Liew in responding to Request
Ob 5 for Admissions as to documents he
wu produced in the form of email
16 communications to he pled the 5"
om 17 Amendment to the Constitution, against
self-incrimination.
Ok 18 Evidence
Ye
9 . Responses to Request for
Admissions November 21, 2018
20 Gaitan Decl. Exhibit 25 Req. Nos.
83-91.
21
ISSUE 2:
22
AS TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT, THERE IS NO TRIABLE
23 IssuE OF MATERIAL FACT THAT DEFENDANT Cy NG WAS EMPLOYED By PLAINTIFF SINCO
FROM JUNE 9, 2003 TO JUNE 29, 2017 UNDER A WRITTEN CONTRACT SETTING FORTH HIS
24 DUTIES
25
Moving Party’s Undisputed Material Opposing Party’s Response and
26 Facts and Supporting Evidence: Supporting Evidence:
27
30. On June 3, 2003, Mr. Ng applied for
28 an engineering position with SINCO
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
Evidence:
e Cy Ng’s Employment
Application. Gaitan Decl
Exhibit 31 at SINCO743724-25
31. On March 6, 2009, Mr. Ng entered
into a Non-Disclosure Agreement with
SINCO which provided details regarding
his obligations as SINCO’s employee.
Evidence:
e Cy Ng’s Non-Disclosure
10
Agreement. Gaitan Decl Exhibit
11 32 at NG00030-31.
12 32. The Nondisclosure Agreement
dated March 6, 2009, included a
13 Confidential Information and
14 Confidential Materials clause and
NB Restrictions clause prohibiting Mr. Ng
Ob 5 from disclosing any of SINCO’s
confidential information to third parties
wu 16 or use for his own benefit during the
om 17
course of his employment and even after
termination of his employment
Ok 18 relationship at paragraph 2.
Ye
9
Evidence:
20
e Cy Ng’s Non-Disclosure
21 Agreement. Gaitan Decl Exhibit
32 at NG00030-31.
22
33. Mr. Ng accepted a salary from
23
SINCO, that was paid in Singapore
24 dollars.
25 Evidence:
26 e Deposition of Cy Ng dated
February 12, 2018. Gaitan Decl
27 Exhibit 13 at 59:19-60:8; 240:6-
28 241:7; and 379:19-380:4.
A.
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Cy Ng’s Loan Agreement.
Gaitan Decl Exhibit 34 at
SINCO337774-77.
e Cy Ng’s Insurance Policy.
Gaitan Decl Exhibit 22 at Page
5
Cy Ng’s Non-Disclosure
Agreement. Gaitan Decl Exhibit
32 at NG00030-31.
Cy Ng’s Employment
Application. Gaitan Decl
Exhibit 31 at SINCO743724-25.
34. Mr. Ng accepted a salary on behalf
10
of SINCO that was paid in Singapore
11 dollars.
12 Evidence:
13 Deposition of Cy Ng dated
February 12, 2018. Gaitan Decl
14 Exhibit 13 at 59:19-60:8; 240:6-
NB
5 241:7; and 379:19-380:4.
Ob
Cy Ng’s Loan Agreement.
wu 16 Gaitan Decl Exhibit 34 at
om
SINCO337774-77.
17 Cy Ng’s Insurance Policy.
Ok 18
Gaitan Decl Exhibit 22 at Page
Ye 5
9 Cy Ng’s Non-Disclosure
Agreement. Gaitan Decl Exhibit
20 32 at NG00030-31.
Cy Ng’s Employment
21
Application. Gaitan Decl
22 Exhibit 31 at SINCO743724-25.
23
35. Mr. Ng accepted the benefit of
24 SINCO’s payment of his related travel
costs and insurance benefits purchased
25
for him during his employment.
26
Evidence:
27
e Deposition of Cy Ng dated
28 February 12, 2018. Gaitan Decl
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
Exhibit 13 at 59:19-60:8; 240:6-
241:7; and 379:19-380:4.
e Cy Ng’s Insurance Policy.
Gaitan Decl Exhibit 22 at Page
2
36. On April 28, 2006, Mr. Ng entered
into a Loan Agreement for $30,000 with
Mr. Lim agreeing to have his payments
be withdrawn from his SINCO salary,
wherein he acknowledged he was an
employee of SINCO and that repayment
may be made from his salary from
SINCO.
10
Evidence:
11
e Cy Ng’s Loan Agreement.
12
Gaitan Decl Exhibit 34 at
13 SINCO337774-77.
14 37. On January 5, 2011, Mr. Ng signed
NB
a legal affidavit filed with the Court in
Ob 5 Singapore wherein he swore he was the
wu Engineering Director of SINCO
16
Technologies PTE Ltd.
om 17
Evidence:
Ok 18
Ye e Cy Ng’s Signed Affidavit of
9 Evidence-In-Chief. Gaitan Decl
Exhibit 35 at SINCO5S74962-
20 575081.
21 38. Mr. Ng filled out and submitted
performance appraisal forms for
22 employees that he supervised like Mr.
Liew and other SINCO employees, that
23 he would submit to SINCO.
24 Evidence:
25
e Mark Liew’s Performance
26 Appraisals Forms submitted by
Cy Ng. Gaitan Decl Exhibit 12
27 at SINCO003193.
28
-16-
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Deposition of Cy Ng dated
February 12, 2018. Gaitan Decl
Exhibit 13 at 97:8-11, 98:1-18
and 101:11-102:12.
39. Gary Chang Wei Chong sent his
resignation letter to Mr. Ng by
addressing it to Mr. Ng as “Engineering
Manager for SinCo Technologies Ptd
Limited” at Woodlands Sector 1,
number 1-02, Woodlands Spectrum.
Evidence:
e Deposition of Cy Ng dated
10 February 12, 2018. Gaitan Decl
Exhibit 13 at 265:23-279:17.
11
40. Mr. Ng verified that Darren Aw
12 submitted his resignation to “Mr. Cy Ng,
Engineering Manager, SinCo
13 Technologies Pte Limited”.
14 Evidence:
NB
Ob 5
e Deposition of Cy Ng dated
wu 16 February 12, 2018. Gaitan Decl
Exhibit 13 at 274:19 -275:8
om 17
Ok 18
41. Mr. Ng testified that he believed all
English resignations were sent to
Ye SINCO.
9
20
Evidence:
21
e Deposition of Cy Ng dated
22 February 12, 2018. Gaitan Decl
Exhibit 13 at 267:23-268:20
23
42. On June 29, 2017, Mr. Ng
24
terminated his employment with SINCO
25 by signing a resignation letter which he
emailed to employees of SINCO.
26
Evidence:
27
28
-17-
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Cy Ng Resignation Letter.
Gaitan Decl Exhibit 26 at
SINCO32923 1-33.
43. On July 24, 2018, this Court signed
an Order granting a Preliminary
Injunction in this action based on
Defendant, Mr. Ng’s Employment
Application, NDA, and Loan Agreement
with SINCO and Sworn Affidavit with
the High Court of Singapore.
The Preliminary Injunction prohibited
Mr. Ng from using any of SINCO’s
10 trade secret information, passing himself
off as plaintiff SINCO, or from using
11
“SinCo” in emails or business cards, and
12 from disclosing SINCO’s pricing
information
13
Evidence:
14 e Court Order Granting
NB
Preliminary Injunction against
Ob 5
Cy NG. Gaitan Decl Exhibit 36.
wu 16 ISSUE 3:
om 17 AS TO THE FIRST CAUSE OF ACTION, THERE Is NO TRIABLE ISSUE OF MATERIAL FACT THAT
Ok 18
DEFENDANTS XINGKE AND PLAINTIFF SINCO ALSO ENTERED A WRITTEN ONE-YEAR
SUPPLY AGREEMENT FROM JANUARY 2, 2012 To JANUARY 2, 2013.
Ye
9 Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
20
44. On January 2, 2012, SINCO and
21
XINGKE entered a Supply Agreement
22 (“SUPPLY AGREEMENT”) for the
provision of goods, including parts,
23 components, materials, goods,
equipment, facilities and all
24 services and related intellectual
properties, from XINGKE to SINCO.
25
Evidence:
26
27 e SUPPLY AGREEMENT
between SINCO and XINGKE .
28
-18-
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
Gaitan Decl Exhibit 1 at
SINCO038233-38239.
45. Article 1 of the SUPPLY
AGREEMENT dated January 2, 2012,
defines the relevant terms for Products,
and Specifications:
Evidence:
e Supply Agreement between
SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
10 SINCO038233-38239.
11 46. Article 2 of the SUPPLY
AGREEMENT dated January 2, 2012,
12 provides the specific terms and
conditions for the transaction models
13
and currency, with a price review every
14 quarter.
NB
Ob 5 Evidence:
wu 16 e Supply Agreement between
om 17
SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
Ok 18 SINCO038233-38239.
Ye
9 47. Article 2.3.3. of the SUPPLY
AGREEMENT January 2, 2012, states
20 the payment terms.
21 Evidence:
22 e Supply Agreement between
23 SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
24 SINCO038233-38239.
25 48. Articles 2.4, 2.5, and 2.6 of the
SUPPLY AGREEMENT January 2,
26 2012, states the shipping terms and
27 identify the Purchase Orders.
28 Evidence:
-19-
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Supply Agreement between
SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
SINCO038233-38239.
49. Article 3 of the SUPPLY
AGREEMENT January 2, 2012,
explains how SINCO would issue
Purchase Orders and Delivery Notices.
Evidence:
e Supply Agreement between
10 SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
11 SINCO038233-38239.
12 50. Article 7 of the SUPPLY
AGREEMENT January 2, 2012, lists
13
SINCO’s intellectual property rights —
14 stating:
NB
Ob 5 “Seller shall remove Buyer's company
name, trademark, nameplate, part no.,
wu 16 symbol and/or descriptive designs on the
Product or the packing, which are
om 17 rejected or returned by Buyer, or not
Ok 18
products ordered or customized by
Buyer.”
Ye
9 Evidence:
20 e Supply Agreement between
SINCO and XINGKE. Gaitan
21 Decl Exhibit 1 at
SINCO038233-38239.
22
23 51. Article 7.3 of the SUPPLY
AGREEMENT January 2, 2012,
24 references an Integrity Declaration and
Undertaking Seller warrants to comply
25 strictly with any and all Buyer's integrity
policies, and agrees to execute an
26
Integrity Declaration and Undertaking.
27
Evidence:
28
-20-
4813-9: 3.49.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO
TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence: Supporting Evidence:
e Supply Agreement between
SINCO and XINGKE. Gaitan
Decl Exhibit 1 at
SINCO038233-38239.
52. Article 7.2 of the SUPPLY
AGREEMENT January 2, 2012,
identifies, the confidentiality provisions
of the contract related to SINCO’s trade-
secrets, stating:
“Either party is liable for the
confidentiality of the Confidential
Information it has learned or received
10 from the other party, otherwise it shall
bear all the damages and losses incurred
11
by the other party.”
12
Evidence:
13
Supply Agreement between
14 SINCO and XINGKE. Gaitan
NB
Decl Exhibit 1 at SINCO038233-
Ob 5 38239.
wu 16
om 17
ISSUE 4:
Ok 18 AS To THE FIRST CAUSE OF ACTION, AFTER THE ONE-YEAR SUPPLY AGREEMENT EXPIRED,
Ye THERE Is NO TRIABLE ISSUE OF MATERIAL FACT THAT DEFENDANT XINGKE, AND
9 PLAINTIFF SINCO ALSO ENTERED INTO A SERIES OF ENFORCEABLE WRITTEN PURCHASE
ORDERS FOR THE PROVISION OF GooDs FROM XIN
Preview
16CV301867 Santa Clara — Civil TODD A. ROBERTS (SBN 129722) Electronically Filed LAEL D. ANDARA (SBN 215416 by Superior Court of CA, JENNIFER E. ACHESON (SBN 130833) County of Santa Clara, DANIEL E. GAITAN (SBN 326413) on 3/4/2021 1:03 PM ROPERS MAJESKI PC 1001 Marshall Street, Sth Floor Reviewed By: R. Walker Redwood City, CA 94063 Case #16CV301867 Telephone: 650.364.8200 Envelope: 5964836 Facsimile: 650.780.1701 Email: todd.roberts@ropers.com lael.andara@ropers.com jennifer.acheson@ropers.com daniel.gaitan@ropers.com Attorneys for Plaintiff and Cross-Defendant SINCO TECHNOLOGIES PTE LTD 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA. 11 COUNTY OF SANTA CLARA 12 13 SINCO TECHNOLOGIES PTE LTD, Case No. 16CV301867 14 Plaintiff, SEPARATE STATEMENT OF NB UNDISPUTED MATERIAL FACTS IN Ob 5 v SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S wu 16 XINGKE ELECTRONICS (DONGGUAN) MOTION FOR SUMMARY CO., LTD.; XINGKE ELECTRONICS ADJUDICATION OF ISSUES om 17 (HONG KONG) CO., LTD.; SINCOO Ok 18 ELECTRONICS TECHNOLOGY CO., LIMITED.; JINLONG MACHINERY & Date: Time: we June 10, 2021 at 1:30pm Ye ELECTRONICS Co., LTD.; LIEW YEW Dept.: 1 9 SOON aka MARK LIEW; SINCO Judge: Honorable Sunil R. Kulkarni ELECTRONICS (DONGGUAN) CO., LTD. 37 20 NG CHER YONG aka CY NG; MUI LIANG Action Filed: October 28, 2016 TJOA; JIN SHAO PING; XU SHUGONG; Trial Date: August 16, 2021 21 QUEK SEOW ENG and DOES 5 through 20, CMC: May 6, 2021 inclusive, 22 Defendants. 23 AND RELATED CROSS-ACTION 24 25 26 27 28 -1- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Pursuant to Code of Civil Procedure section 437c (b), and California Rule of Court 3.1350, Plaintiff SINCO TECHNOLOGIES PTE LTD (“SINCO” or “Plaintiff’) hereby submits the following Separate Statement of Undisputed Material Facts in Support of Adjudication as to Plaintiffs First Cause of Action for Breach of Contract of the Fourth Amended Complaint filed May 18, 2020 (“FAC”). I. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FROM THE FOURTH AMENDED COMPLAINT OF MAY 18, 2020. ISSUE 1: As TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT, THERE IS NO TRIABLE ISSUE OF MATERIAL FACT THAT DEFENDANT MARK LIEW WAS EMPLOYED BY PLAINTIFF SINCO FROM JUNE 6, 2013 TO MARCH 21, 2017 UNDER A WRITTEN CONTRACT SETTING 10 FORTH His DUTIES 11 Moving Party’s Undisputed Material Opposing Party’s Response and 12 Facts and Supporting Evidence: Supporting Evidence: 13 1 On June 6, 2013 Mr. Liew applied for a position with SINCO as Engineering 14 Manager, wherein he acknowledged that NB he had previously been an employee of Ob 5 SINCO from June 2006 to June 2012. wu 16 Evidence: om 17 Ok 18 . Employment Application of Mark Liew. Declaration of Daniel E. Ye Gaitan (““Gaitan Decl.”) Exhibit 8 9 at SINCO000016-21. 20 2. On June 10, 2013, Defendant Mark 21 Liew entered into an EMPLOYEMENT AGREEMENT with SINCO 22 (“EMPLOYEMENT AGREEMENT”) agreeing to all the terms and conditions of 23 the agreement 24 Evidence: 25 e EMPLOYEMENT AGREEMENT 26 of Mark Liew. Gaitan Decl Exhibit 9 at SINCO00027-37. 27 Mark Liew’s Response to Request for Admissions (“RFA”), Set Two, 28 -2- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: Req. No. 62. Gaitan Decl Exhibit 38. Mark Liew’s Response to Special Interrogatories (“ROGS”), Set One, Req. No. 10, 16, 19, 22, 25, 28, 31. 37, 40, 43. 46, 49, 52, 55, 61, 67, 102, 115, and 116. Gaitan Decl Exhibit 11. Deposition of Mark Liew dated December 2, 2016 Gaitan Decl Exhibit 16 at 24:13-16; 51:5-24; 55:19-22; 56:5-14; 62:20-63:15; 138:17-23; 206:9- 208:22 and 229:13-14. 10 SINCO’s Company Handbook- 11 Gaitan Decl Exhibit 51 at SINCO576872-909. 12 3. On June 10, 2013, Defendant Mark 13 Liew agreed to abide by the terms and conditions of the Staff Employment 14 Handbook. NB Ob 5 Evidence: wu 16 e SINCO’s Company Handbook- Gaitan Decl Exhibit 51 at om 17 SINCO576872-909. Ok 18 EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl Ye Exhibit 9 at SINCO00027-37. 9 20 4, Signing the EMPLOYEMENT 21 AGREEMENT on June 10, 2013, Mr. Liew was obligated to maintain SINCO’s 22 confidential and proprietary information, as well as SINCO’s trade secrets. 23 24 Evidence: e EMPLOYEMENT AGREEMENT 25 of Mark Liew. Gaitan Decl Exhibit 9 at SINCO00027-37. 26 5. SINCO hired Mr. Liew on June 10, 27 2013, to represent SINCO, and oversee its 28 -3- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: projects at the contract manufacturer in China. Evidence: e Mark Liew’s Response to RFA Set One, Req. No. 28, 2, 14, 17,. Gaitan Decl Exhibit 10. Mark Liew’s Response to Special Interrogatories (“ROGS”), Set One, Req. No. 10, 16, 19, 22, 25, 28, 31. 37, 40, 43. 46, 49, 52, 55, 61, 67, 102, 115, and 116. Gaitan Decl Exhibit 11. 10 Deposition of Mark Liew dated December 2, 2016 Gaitan Decl 11 Exhibit 16 at 24:13-16; 62:20- 12 63:15; 138:16-23; 206:9- 208:22 and 229:11-14. 13 6. Mr. Liew admitted he was hired to 14 oversee work done for SINCO at SinCo NB Electronics (Dongguan) Co. Ltd., Ob 5 (“XINGKE”) pursuant to the wu 16 EMPLOYEMENT AGREEMENT dated June 10, 2013, with SINCO. om 17 Ok 18 Evidence: Ye e Mark Liew’s Response to RFA,Set 9 One, Req. No. 28. Gaitan Decl Exhibit 10. 20 Mark Liew’s Response to RFA, 21 Set Two, Req. No. 62. Gaitan Decl Exhibit 38. 22 Mark Liew’s Response to Special Interrogatories (“ROGS”), Set 23 One, Req. No. 10, 16, 19, 22, 25, 24 28, 31. 37, 40, 43. 46, 49, 52, 55, 61, 67, 102, 115, and 116. Gaitan 25 Decl Exhibit 11. 26 7. On March 3, 2017 Mr. Liew signed a verification to his responses to ROGS Set 27 One wherein he testified “Responding 28 Party has acted at the direction of Plaintiff -4- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: pursuant to the Employment Agreement and Plaintiff cannot now claim a breach of contract when it was Plaintiff who demanded the arrangement about which it now complains.” Evidence: e Mark Liew’s Response to Special Interrogatories (“ROGS”), Set One, Req. No. 10, 16, 19, 22, 25, 28, 31. 37, 40, 43. 46, 49, 52, 55, 61, 67. Gaitan Decl Exhibit 11. 8. Mr. Liew testified that he acted at the 10 direction of SINCO pursuant to the EMPLOYEMENT AGREEMENT dated 11 June 10, 2013, with SINCO. 12 Evidence: 13 . Mark Liew’s Response to ROGS, Set One, Req. No. 10, 16, 19, 22, NB 14 25, 28, 31, 37, 40, 43, 46, 49, 52, 55, 61, 64, and 67. Gaitan Decl Ob 5 Exhibit 11. wu 16 9. Mr. Liew’s EMPLOYEMENT om 17 AGREEMENT dated June 10, 2013, was Ok 18 with SINCO, and not XINGKE, and has acknowledged that XINGKE was not a Ye party to his EMPLOYEMENT 9 AGREEMENT. 20 Evidence: 21 e Deposition of Mark Liew dated December 2, 2016 Gaitan Decl 22 Exhibit 16 at 59:18-61:7; 125:13- 14; and 126:12-127:20. 23 Mark Liew’s Response to Special 24 Interrogatories (“ROGS”), Set One, Req. No. 10, 16, 19, 22, 25, 25 28, 31. 37, 40, 43. 46, 49, 52, 55, 61, 67, 102, 115, and 116. Gaitan 26 Decl Exhibit 11. 27 10. Pursuant to the EMPLOYEMENT 28 AGREEMENT dated June 10, 2013, Mr. -5- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: Liew also agreed to abide by specific confidentiality obligations to SINCO. Evidence: . Employment Application of Mark Liew. Gaitan Decl. Exhibit 8 at SINCO000016-21. EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl Exhibit 9 at SINCO00027-37. Deposition of Mark Liew dated December 2, 2016 Gaitan Decl Exhibit 16 at51:5-24; 55:19-22; and 56:5-14. 10 11 11. The EMPLOYEMENT AGREEMENT dated June 10, 2013, 12 included a Confidential Matters/Trade Secrets at paragraph 16, that states: 13 “16. Confidential Matters/Trade Secrets 14 NB (a) As you are aware, you are prohibited Ob 5 from misusing any confidential information belonging to the SinCo wu 16 Group. In addition to and without prejudice to your existing duties of om 17 confidentiality (whether arising under Ok 18 statute, common law, equity or otherwise) you agree to abide by the conditions set Ye out in Schedule B regarding the use and 9 confidentiality of Restricted Information and Restricted Materials belonging to the 20 SinCo Group. 21 LJ 22 (c) The obligations set out in Schedule B shall survive any termination of your 23 employment howsoever arising and shall continue for a period of five (5) years 24 from your last day of employment.” 25 Evidence: 26 e EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl- 27 Exhibit 9 at SINCO00027-37. 28 -6- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Deposition of Mark Liew dated December 2, 2016 Gaitan Decl Exhibit 16 at 55:19-22. 12. Schedule B, section 2(b) to the EMPLOYEMENT AGREEMENT dated June 10, 2013, provided: “not to make any commercial use [of Restricted information]” and “not to use the same for the benefit of [him]self or for any third party[.]” Evidence: 10 . EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl- 11 Exhibit 9 at SINCO00027-37. 12 Deposition of Mark Liew dated December 2, 2016 Gaitan Decl 13 Exhibit 16 at 55:19-22 and 206:25- 207:11. 14 NB 13. Schedule B, section 4(b) to the Ob 5 EMPLOYEMENT AGREEMENT dated wu 16 June 10, 2013, provided that SINCO had restricted information and materials and om 17 that any breach of conditions in the Ok 18 Schedule will result in irreparable harm entitling SINCO to both monetary Ye damages and/or equitable relief: 9 “You acknowledge that the SinCo Group 20 has developed or obtained the Restricted Information and Restricted Materials 21 through the investment of significant time. 22 effort and expense and that the Restricted Information and Restricted Materials 23 provide the SinCo Group with significant advantages over its competitors. You 24 understand and agree that any breach of the conditions in this Schedule will result 25 in irreparable harm to the SinCo Group and that monetary damages may not be an 26 adequate remedy in the event of a breach or threatened breach of the Schedule. 27 Accordingly, you agree that in the event of a breach or threatened breach of the 28 conditions in this Schedule, any member eae 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: of the SinCo Group shall be entitled to eek equitable relief, including injunctiv: elief and specific performance, 1 addition to all other remedies available in law of equity.” (emphasis added.) Evidence: e EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl- Exhibit 9 at SINCO00027-37. Deposition of Mark Liew dated December 2, 2016 Gaitan Decl Exhibit 16 at 55:19-22 and 206:25- 207:11. 10 14. Under the terms of the 11 EMPLOYEMENT AGREEMENT dated 12 June 10, 2013, Liew was also contractually prohibited from working for 13 both SINCO and a competitor simultaneously: 14 NB “You shall not engage in other Ob 5 employment or work outside the Company wu unless prior approval has been obtained 16 from the Company.” om 17 Evidence: Ok 18 . EMPLOYEMENT AGREEMENT Ye of Mark Liew. Gaitan Decl- 9 Exhibit 9 at SINCO00027-37. 20 Deposition of Mark Liew dated December 2, 2016 Gaitan Decl 21 Exhibit 16 at 55:19-22. 22 15. Mr. Liew acknowledged and admitted 23 that he received salary and employee benefits from SINCO. 24 Evidence: 25 e Mark Liew’s Response to RFA, 26 Set One, Req. No. 2 and 17. Gaitan Decl Exhibit 10. 27 28 -8- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Mark Liew’s Response to ROGS, Set One, Req. No. 102, 115 and 116. Gaitan Decl Exhibit 11. Mark Liew’s Insurance Policy paid by SINCO. Gaitan Decl Exhibit 22 at page 3 at SINCOS75097- 575104. Mark Liew’s Pay Roll Report. Gaitan Decl Exhibit 14 at SINCO00042-83. Mark Liew’s Performance Appraisals Forms. Gaitan Decl Exhibit 12. 10 Deposition of Mark Liew dated December 2, 2016 Gaitan Decl 11 Exh it 16 at 46:6-12 ;130:5-12 and 164:2-9. 12 Deposition of Cy Ng dated February, 2018 Gaitan Decl 13 Exhibit 13 at 97:8-11 and 101:11- 14 102:12. Ob 5 16. Mark Liew was on SINCO’s payroll. wu 16 Evidence: om 17 . Mark Liew’s Pay Roll Report. Ok 18 Gaitan Decl Exhibit 14 at SINCO00042-83. Ye . Mark Liew’s Response to RFA, 9 Set One, Req. No. 2 and 17. 20 Gaitan Decl Exhibit 10 21 17. On May 26, 2015, Jerry Darui (“Mr. Darui”) in applying for a job at SINCO 22 confirmed that Mr. Liew was employee for SINCO. 23 24 Evidence: 25 . Jerry Darui’s Employment Application to SINCO. Gaitan 26 Decl Exhibit 20 at page 5 at SINCO038298-303. 27 28 -9- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: 18. Mr. Liew identified SINCO under the category of “WORK” on his “About Mark Liew Yew Soon” page on Facebook. Evidence: e Mark Liew’s Facebook Profile. Gaitan Decl Exhibit 52 at SINCO000040-41 10 19. Mr. Liew created a Facebook post on December 29, 2008 with the title “Boss 11 singing ‘Better Man’ 2 , which depicts an image of Bryan Lim. 12 Evidence: 13 . Mark Liew’s Facebook Profile. 14 NB Gaitan Decl Exhibit 52 at Ob 5 SINCO742600. wu 16 20. On June 24, 2016, Mr. Liew om 17 submitted a VISA application under Ok 18 penalty of perjury, reaffirmed by his own testimony, to the U.S. State Department Ye identifying SINCO as his employer. 9 20 Evidence: 21 Deposition of Mark Liew dated February 21, 2017, Gaitan Decl 22 Exhibit 17 at 321:18-322:6. Online Non-immigrant Visa 23 Application by Liew Mark. Gaitan 24 Decl Exhibit 18 at Liew 000197- 203. 25 Mark Liew’s Response to RFA, Set One, Req. No. 13 and 14. 26 Gaitan Decl Exhibit 10. 27 Mark Liew’s Response to RFA, Set Two, Req. No. 69. Gaitan Decl 28 Exhibit 38. -10- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: 21. On June 26, 2016 Mark Liew emailed SINCO requesting that they would approve a personal trip to the US. Evidence: e Mark Liew’s email to Cynthia. Gaitan Decl Exhibit 21 at SINCO001883212-213. Deposition of Mark Liew dated December 2, 2016 Gaitan Decl Exhibit 16 at 65:3-13. 10 22. On June 26, 2016, Mark Liew emailed SINCO stating “I need a letter to 11 prove I’m working and have proper income” for his application for the US 12 VISA. 13 Evidence: 14 NB e Mark Liew’s email to Cynthia. Ob 5 Gaitan Decl Exhibit 21 at wu SINCO001883212-213. 16 Deposition of Mark Liew dated om 17 December 2, 2016 Gaitan Decl Exhibit 16 at 65:3-13. Ok 18 Ye 23. Mr. Liew resigned from SINCO, the 9 first time on May 23, 2012, by a letter of resignation directed and identifying Mr. 20 Ng as SINCO’s Engineering supervisor. 21 Evidence: 22 . Mark Liew’s first resignation. 23 Gaitan Decl Exhibit 23 at SINCOQ000621-622. 24 24. On March 21, 2017, Mr. Liew 25 terminated his employment with SINCO by signing a resignation letter which he 26 provided to SINCO employees by email. 27 Evidence 28 -ll- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Deposition of Cy Ng dated February 12, 2018. Gaitan Decl Exhibit 13 at 41:11-21. Deposition of Mark Liew dated March 08, 2018 Gaitan Decl Exhibit 19 at 377:6-24. 25. On June 1, 2017, Judge Zayner signed an Order granting a Preliminary Injunction in this this action based on Mr. Liew’s written EMPLOYEMENT AGREEMENT with SINCO dated June 10, 2013. Evidence 10 e Employment Application of Mark Liew. Gaitan Decl. Exhibit 8 at 11 SINCO000016-21. 12 EMPLOYEMENT AGREEMENT of Mark Liew. Gaitan Decl 13 Exhibit 9 at SINCO00027-37. Judge Zayner’s Order granting an 14 Injunction against Mark Liew. NB 5 Gaitan Decl. Exhibit 24, Ob wu 16 26. The Preliminary Injunction prohibited Mr. Liew from using any of SINCO’s om 17 trade secret information, passing himself Ok 18 off as plaintiff SINCO, or from contacting SINCO’s U.S. customers pursuant to his Ye EMPLOYEMENT AGREEMENT dated 9 June 10, 2013, with SINCO. 20 Evidence 21 . Judge Zayner’s Order granting an 22 Injunction against Mark Liew. Gaitan Decl. Exhibit 24 at 2:6-23 23 24 27. On January 2, 2019, this Court fined Mr. Liew based on his signed stipulation 25 of contempt of the June 1, 2017, Preliminary Injunction. 26 Evidence 27 28 -12- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Contempt Order finding Mr. Liew for still being in contact with SINCO’s U.S. customers. Gaitan Decl. Exhibit 15. 28. Mr. Liew stipulated to the terms of the Protective Order and that he violated section 5 of the June 1, 2017, Preliminary Injunction in sending multiple emails using the "sincocn.cn" domain provided by XINGKE, three months after it had publicly changed its name to “XINGKE” in March of that year. 10 Evidence 11 e Contempt Order finding Mr. Liew 12 for still being in contact with 13 SINCO’s U.S. customers. Gaitan Decl. Exhibit 15. 14 NB 29. Mr. Liew in responding to Request Ob 5 for Admissions as to documents he wu produced in the form of email 16 communications to he pled the 5" om 17 Amendment to the Constitution, against self-incrimination. Ok 18 Evidence Ye 9 . Responses to Request for Admissions November 21, 2018 20 Gaitan Decl. Exhibit 25 Req. Nos. 83-91. 21 ISSUE 2: 22 AS TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT, THERE IS NO TRIABLE 23 IssuE OF MATERIAL FACT THAT DEFENDANT Cy NG WAS EMPLOYED By PLAINTIFF SINCO FROM JUNE 9, 2003 TO JUNE 29, 2017 UNDER A WRITTEN CONTRACT SETTING FORTH HIS 24 DUTIES 25 Moving Party’s Undisputed Material Opposing Party’s Response and 26 Facts and Supporting Evidence: Supporting Evidence: 27 30. On June 3, 2003, Mr. Ng applied for 28 an engineering position with SINCO -13- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: Evidence: e Cy Ng’s Employment Application. Gaitan Decl Exhibit 31 at SINCO743724-25 31. On March 6, 2009, Mr. Ng entered into a Non-Disclosure Agreement with SINCO which provided details regarding his obligations as SINCO’s employee. Evidence: e Cy Ng’s Non-Disclosure 10 Agreement. Gaitan Decl Exhibit 11 32 at NG00030-31. 12 32. The Nondisclosure Agreement dated March 6, 2009, included a 13 Confidential Information and 14 Confidential Materials clause and NB Restrictions clause prohibiting Mr. Ng Ob 5 from disclosing any of SINCO’s confidential information to third parties wu 16 or use for his own benefit during the om 17 course of his employment and even after termination of his employment Ok 18 relationship at paragraph 2. Ye 9 Evidence: 20 e Cy Ng’s Non-Disclosure 21 Agreement. Gaitan Decl Exhibit 32 at NG00030-31. 22 33. Mr. Ng accepted a salary from 23 SINCO, that was paid in Singapore 24 dollars. 25 Evidence: 26 e Deposition of Cy Ng dated February 12, 2018. Gaitan Decl 27 Exhibit 13 at 59:19-60:8; 240:6- 28 241:7; and 379:19-380:4. A. 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Cy Ng’s Loan Agreement. Gaitan Decl Exhibit 34 at SINCO337774-77. e Cy Ng’s Insurance Policy. Gaitan Decl Exhibit 22 at Page 5 Cy Ng’s Non-Disclosure Agreement. Gaitan Decl Exhibit 32 at NG00030-31. Cy Ng’s Employment Application. Gaitan Decl Exhibit 31 at SINCO743724-25. 34. Mr. Ng accepted a salary on behalf 10 of SINCO that was paid in Singapore 11 dollars. 12 Evidence: 13 Deposition of Cy Ng dated February 12, 2018. Gaitan Decl 14 Exhibit 13 at 59:19-60:8; 240:6- NB 5 241:7; and 379:19-380:4. Ob Cy Ng’s Loan Agreement. wu 16 Gaitan Decl Exhibit 34 at om SINCO337774-77. 17 Cy Ng’s Insurance Policy. Ok 18 Gaitan Decl Exhibit 22 at Page Ye 5 9 Cy Ng’s Non-Disclosure Agreement. Gaitan Decl Exhibit 20 32 at NG00030-31. Cy Ng’s Employment 21 Application. Gaitan Decl 22 Exhibit 31 at SINCO743724-25. 23 35. Mr. Ng accepted the benefit of 24 SINCO’s payment of his related travel costs and insurance benefits purchased 25 for him during his employment. 26 Evidence: 27 e Deposition of Cy Ng dated 28 February 12, 2018. Gaitan Decl -15- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: Exhibit 13 at 59:19-60:8; 240:6- 241:7; and 379:19-380:4. e Cy Ng’s Insurance Policy. Gaitan Decl Exhibit 22 at Page 2 36. On April 28, 2006, Mr. Ng entered into a Loan Agreement for $30,000 with Mr. Lim agreeing to have his payments be withdrawn from his SINCO salary, wherein he acknowledged he was an employee of SINCO and that repayment may be made from his salary from SINCO. 10 Evidence: 11 e Cy Ng’s Loan Agreement. 12 Gaitan Decl Exhibit 34 at 13 SINCO337774-77. 14 37. On January 5, 2011, Mr. Ng signed NB a legal affidavit filed with the Court in Ob 5 Singapore wherein he swore he was the wu Engineering Director of SINCO 16 Technologies PTE Ltd. om 17 Evidence: Ok 18 Ye e Cy Ng’s Signed Affidavit of 9 Evidence-In-Chief. Gaitan Decl Exhibit 35 at SINCO5S74962- 20 575081. 21 38. Mr. Ng filled out and submitted performance appraisal forms for 22 employees that he supervised like Mr. Liew and other SINCO employees, that 23 he would submit to SINCO. 24 Evidence: 25 e Mark Liew’s Performance 26 Appraisals Forms submitted by Cy Ng. Gaitan Decl Exhibit 12 27 at SINCO003193. 28 -16- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Deposition of Cy Ng dated February 12, 2018. Gaitan Decl Exhibit 13 at 97:8-11, 98:1-18 and 101:11-102:12. 39. Gary Chang Wei Chong sent his resignation letter to Mr. Ng by addressing it to Mr. Ng as “Engineering Manager for SinCo Technologies Ptd Limited” at Woodlands Sector 1, number 1-02, Woodlands Spectrum. Evidence: e Deposition of Cy Ng dated 10 February 12, 2018. Gaitan Decl Exhibit 13 at 265:23-279:17. 11 40. Mr. Ng verified that Darren Aw 12 submitted his resignation to “Mr. Cy Ng, Engineering Manager, SinCo 13 Technologies Pte Limited”. 14 Evidence: NB Ob 5 e Deposition of Cy Ng dated wu 16 February 12, 2018. Gaitan Decl Exhibit 13 at 274:19 -275:8 om 17 Ok 18 41. Mr. Ng testified that he believed all English resignations were sent to Ye SINCO. 9 20 Evidence: 21 e Deposition of Cy Ng dated 22 February 12, 2018. Gaitan Decl Exhibit 13 at 267:23-268:20 23 42. On June 29, 2017, Mr. Ng 24 terminated his employment with SINCO 25 by signing a resignation letter which he emailed to employees of SINCO. 26 Evidence: 27 28 -17- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Cy Ng Resignation Letter. Gaitan Decl Exhibit 26 at SINCO32923 1-33. 43. On July 24, 2018, this Court signed an Order granting a Preliminary Injunction in this action based on Defendant, Mr. Ng’s Employment Application, NDA, and Loan Agreement with SINCO and Sworn Affidavit with the High Court of Singapore. The Preliminary Injunction prohibited Mr. Ng from using any of SINCO’s 10 trade secret information, passing himself off as plaintiff SINCO, or from using 11 “SinCo” in emails or business cards, and 12 from disclosing SINCO’s pricing information 13 Evidence: 14 e Court Order Granting NB Preliminary Injunction against Ob 5 Cy NG. Gaitan Decl Exhibit 36. wu 16 ISSUE 3: om 17 AS TO THE FIRST CAUSE OF ACTION, THERE Is NO TRIABLE ISSUE OF MATERIAL FACT THAT Ok 18 DEFENDANTS XINGKE AND PLAINTIFF SINCO ALSO ENTERED A WRITTEN ONE-YEAR SUPPLY AGREEMENT FROM JANUARY 2, 2012 To JANUARY 2, 2013. Ye 9 Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: 20 44. On January 2, 2012, SINCO and 21 XINGKE entered a Supply Agreement 22 (“SUPPLY AGREEMENT”) for the provision of goods, including parts, 23 components, materials, goods, equipment, facilities and all 24 services and related intellectual properties, from XINGKE to SINCO. 25 Evidence: 26 27 e SUPPLY AGREEMENT between SINCO and XINGKE . 28 -18- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: Gaitan Decl Exhibit 1 at SINCO038233-38239. 45. Article 1 of the SUPPLY AGREEMENT dated January 2, 2012, defines the relevant terms for Products, and Specifications: Evidence: e Supply Agreement between SINCO and XINGKE. Gaitan Decl Exhibit 1 at 10 SINCO038233-38239. 11 46. Article 2 of the SUPPLY AGREEMENT dated January 2, 2012, 12 provides the specific terms and conditions for the transaction models 13 and currency, with a price review every 14 quarter. NB Ob 5 Evidence: wu 16 e Supply Agreement between om 17 SINCO and XINGKE. Gaitan Decl Exhibit 1 at Ok 18 SINCO038233-38239. Ye 9 47. Article 2.3.3. of the SUPPLY AGREEMENT January 2, 2012, states 20 the payment terms. 21 Evidence: 22 e Supply Agreement between 23 SINCO and XINGKE. Gaitan Decl Exhibit 1 at 24 SINCO038233-38239. 25 48. Articles 2.4, 2.5, and 2.6 of the SUPPLY AGREEMENT January 2, 26 2012, states the shipping terms and 27 identify the Purchase Orders. 28 Evidence: -19- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Supply Agreement between SINCO and XINGKE. Gaitan Decl Exhibit 1 at SINCO038233-38239. 49. Article 3 of the SUPPLY AGREEMENT January 2, 2012, explains how SINCO would issue Purchase Orders and Delivery Notices. Evidence: e Supply Agreement between 10 SINCO and XINGKE. Gaitan Decl Exhibit 1 at 11 SINCO038233-38239. 12 50. Article 7 of the SUPPLY AGREEMENT January 2, 2012, lists 13 SINCO’s intellectual property rights — 14 stating: NB Ob 5 “Seller shall remove Buyer's company name, trademark, nameplate, part no., wu 16 symbol and/or descriptive designs on the Product or the packing, which are om 17 rejected or returned by Buyer, or not Ok 18 products ordered or customized by Buyer.” Ye 9 Evidence: 20 e Supply Agreement between SINCO and XINGKE. Gaitan 21 Decl Exhibit 1 at SINCO038233-38239. 22 23 51. Article 7.3 of the SUPPLY AGREEMENT January 2, 2012, 24 references an Integrity Declaration and Undertaking Seller warrants to comply 25 strictly with any and all Buyer's integrity policies, and agrees to execute an 26 Integrity Declaration and Undertaking. 27 Evidence: 28 -20- 4813-9: 3.49. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF SINCO TECHNOLOGIES PTE LTD'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence: Supporting Evidence: e Supply Agreement between SINCO and XINGKE. Gaitan Decl Exhibit 1 at SINCO038233-38239. 52. Article 7.2 of the SUPPLY AGREEMENT January 2, 2012, identifies, the confidentiality provisions of the contract related to SINCO’s trade- secrets, stating: “Either party is liable for the confidentiality of the Confidential Information it has learned or received 10 from the other party, otherwise it shall bear all the damages and losses incurred 11 by the other party.” 12 Evidence: 13 Supply Agreement between 14 SINCO and XINGKE. Gaitan NB Decl Exhibit 1 at SINCO038233- Ob 5 38239. wu 16 om 17 ISSUE 4: Ok 18 AS To THE FIRST CAUSE OF ACTION, AFTER THE ONE-YEAR SUPPLY AGREEMENT EXPIRED, Ye THERE Is NO TRIABLE ISSUE OF MATERIAL FACT THAT DEFENDANT XINGKE, AND 9 PLAINTIFF SINCO ALSO ENTERED INTO A SERIES OF ENFORCEABLE WRITTEN PURCHASE ORDERS FOR THE PROVISION OF GooDs FROM XIN