Free Objection - District Court of California - California

Case 5:07-cv-04507-JF

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Filed 10/11/2007

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LINDA SHAO (CA 182768) LAW OFFICE OF LINDA SHAO, APLC 28 North First Street, Suite 618 San Jose, CA 95131 Phone: 408-873-3888 Fax: 408-873-3889 Attorney for Defendant PTI Global Inc. Limited Scope of Representation for filing this Opposition only Specially appearing only UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ACTICON TECHNOLOGIES LLC Case No. C07-4507BZ OBJECTION TO EVIDENCE CONTAINED IN "DECLARATION OF CHRISTINE S. WATSON IN SUPPORT OF PLAINTIFF ACTICON TECHNOLOGIES LLC'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION"

9 10 11 12 13 14 vs. PRETEC ELECTRONICS CORPORATION, et al. Defendants Plaintiff,

15 TO THE COURT AND PLAINTIFF AND ITS ATTORNEY OF RECORD: 16 17 S. WATSON IN SUPPORT OF PLAINTIFF ACTICON TECHNOLOGIES LLC'S EX 18 19 PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION Defendant PTI Global, Inc. objects to evidence contained in "DECLARATION OF CHRISTINE

20 FOR PRELIMINARY INJUNCTION" 21 1. 22 23 24 Paragraph 8, Page 3, Lines 8 through 13: "On October 24, 2006, Defendant TOMMY HO contacted me via telephone. The following day, in a telephone conference between TOMMY HO and myself, TOMMY HO requested a description of the "Accused Products" in the FIRST COMPLAINT (which consisted of PCMCIA, CompactFlash and Secure Digital I/O from factor electronic connectors) and agreed to provide ACTICON with six years of annual sales information for PRETEC's Accused Products."

25 GROUND FOR OBJECTION: 26 27 28
Si, et al. v. CSM Investment et al, Case No. C06-07611 PVT PTI Global's Objection to Evidence Page 1

a.

Hearsay, FRE 801. Such oral promise was not mentioned in the Complaint. Such contacts, if true, violated California Business and

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Profession Code to have contacts with a party when the party was 1 2 3 4 5 6 7 2. 8 9 10 Paragraph 10: "Based on Defendant TOMMY HO's agreement on behalf of PRETEC to provide sales information for the Accused Products to ACTICON, ACTICON agreed not to seek entry of default judgement against PRETEC and did not oppose PRETEC's Motion to Change Time and filed a Statement of Non-Opposition to Pretec's Motion to Change Time on October 27, 2006..." b. represented by Counsel. Mr. Ho was alleged to be a key employee of Defendant Pretec Electronics Corporation which was represented by counsel as admitted by Mr. Watson in Page 4, Lines 22-23. Settlement discussion shall not be introduced into evidence

11 GROUND FOR OBJECTION: 12 13 14 FRE 403 (misleading): It is because as shown by Paragraph 9 of the same 15 16 17 18 19 20 21 22 3. Paragraph 11, Page 3, Lines 26-27: "That same day, October 27, 2006, a company named Pretec Technology, Inc., who was not named a defendant in the FIRST COMPLAINT, filed a Certificate of Amendment of Articles of Incorporation with the California Secretary of State to change its corporate name..." C. declaration, the alleged written email does not support an existence of the alleged agreement. Settlement discussion shall not be introduced into evidence A. B. Hearsay, FRE 801. Misrepresentation and misleading statement. FRCP Rule 60 (misrepresentation),

23 GROUND FOR OBJECTION: 24 25 26 27 28
Si, et al. v. CSM Investment et al, Case No. C06-07611 PVT PTI Global's Objection to Evidence Page 2

Misrepresentation and misleading statement. FRCP Rule 60 (misrepresentation), FRE 403 (misleading) and lack of personal knowledge: The declarant has no personal knowledge of when Pretec Technology, Inc. did the action of filing with the Secretary of State.

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4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5.

Paragraph 13, Page 4, Lines 17-22: "I never heard from PRETEC or TOMMY HO subsequent to the correspondence described in Paragraph 9 above. On November 15, 2006, I sent a follow-up email to TOMMY HO regarding his representations that he would provide PRETEC's sales figures to ACTICON and indicating that I was unable to reach him via telephone, but I never received any response to my e-mail. A true and correct copy of the November 15, 2006 e-mail is attached hereto as Exhibit "F.""

GROUND FOR OBJECTION: a. Hearsay, FRE 801 regarding Mr. Ho's agreement to provide sales figures b. Misrepresentation and misleading statement. FRCP Rule 60 (misrepresentation), FRE 403 (misleading) regarding existence of Mr. Ho's agreement: It is because as shown by Paragraph 9 of the same declaration, the alleged written email does not support an existence of the alleged agreement. c. Exhibit F is self-serving. d. Such contacts is unethical as Mr. Ho was represented by counsel. Paragraph 15, Page 5, Lines 5-7: "PRETEC, who supposedly dissolved in November 2006, issued a press release on April 4, 2007, announcing its new Rugged Industrial CompactFlash card. A true and correct copy of the press release is attached as Exhibit "H"

GROUND FOR OBJECTION: a. b. c. Irrelevant Speculation and without personal knowledge: Mr. Watson's presumption that "PRETEC press release" is new product manufactured by Pretec Electronics Corporation is pure speculation. Misrepresentation and misleading statement. FRCP Rule 60 (misrepresentation), FRE 403 (misleading). In actuality, neither Pretec Electronics Corporation nor PTI Global, Inc. did or does any manufacturing. www.pretec.com is not the website of PTI Global, Inc., nor the website of Pretec Electronics Corporation. None of the products mentioned in the press release as shown in Exhibit G has

anything to do with the patents of Plaintiff. Defendant PTI Global does not do any manufacturing . (Decl. Tom) There was no funds transferred from Pretec Electronics Corporation to PTI Global Inc. (Decl. Tom) PTI Global, Inc. only does sales. (Decl. Tom)
Si, et al. v. CSM Investment et al, Case No. C06-07611 PVT PTI Global's Objection to Evidence Page 3

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Plaintiff, without conducting minimal investigation, speculate that a press release of 1 2 3 4 5 6 7 without any foundation. 8 9 10 11 12 13 14 www.ptiglobalusa.com as shown in Paragraph 58 of the Complaint, Plaintiff should know that 15 16 17 18 19 20 21 22 Dated: October 11, 2007 23 24 25 26 27 28
Si, et al. v. CSM Investment et al, Case No. C06-07611 PVT PTI Global's Objection to Evidence Page 4

"Pretec" signifies a revival of Pretec Electronics Corporation and misinterpret Pretec Electronic Corporation's dissolution was fraudulent and that corporation is still alive was too naïve and irresponsible. Plaintiff speculation that a press release for new produce under the trademark of Pretec must be the product of Pretec Electronics Corporation is erroneous. Plaintiff further speculate the "Pretec" is "PTI Global, Inc." based on this press release is further illogical and

The contact information clearly shows that the products referred by the "Pretec" press release are all from Taiwan. Such information can easily obtained just by go to the website stated in the press release, i.e., www.pretec.com. Therefore, allegation that such a press release was issued by Pretec Electronics Corporation, a California corporation, is misleading. As Plaintiff already alleged that the website for Defendant PTI Global, Inc. is

www.pretec.com has nothing to do with PTI Global, Inc. WHEREFOR, Defendant PTI Global, Inc. respectfully moves the Court to strike the objected portion from admitting into evidence in consideration of Plaintiff's ex parte motion for TRO and motion for preliminary injunction. There is no expert witness testifying patent infringement and no finding of patent infringement. Thus, this motion should be denied in its entirety.

Law Offices of Linda Shao, APLC By: /s/ Linda Shao Linda Shao, Esq. Attorney for Defendant PTI Global, Inc. Limited Scope of Representation for this Opposition only Specially appearing only