Judge: Stephen I. Goorvitch, Case: 21STCV02371, Date: 2023-05-24 Tentative Ruling
Case Number: 21STCV02371 Hearing Date: February 15, 2024 Dept: 39
Brink
Biologics, Inc. v. Sanofi, S.A., et al.
Case
No. 21STCV02371
Motion
for Leave to Amend
Plaintiff Brink Biologics, Inc. (“Plaintiff”) filed this
action against Sanofi, S.A. (“Sanofi”), Sanofi-Aventis U.S., LLC (“SAUS”), and
Sanofi-Aventis Recherche & Developpement, S.A. (“SARD”) (collectively,
“Defendants”). Conkwest Incorporated
(“Conkwest”), a predecessor entity of Plaintiff, entered into a non-exclusive
licensing agreement with SARD on December 16, 2011. Plaintiff alleges that this agreement granted
Defendants a license to use NK-92 cells for research and development
purposes. Plaintiff alleges that
Defendants were not authorized to modify the cells or use the cells for
commercial purposes, like potency or quality control release assays. Plaintiff alleges that Defendants violated
both prohibitions, as a result of which Plaintiff terminated
the license on January 19, 2021.
Defendants filed a cross-complaint against Plaintiff stemming from this
termination. Now, Plaintiff seeks to
file a first amended complaint.
Under Code of Civil Procedure section 473, subdivision
(a)(1), “The court may,
in furtherance of justice, and on any terms as may be proper, allow a party to
amend any pleading or proceeding by adding or striking out the name of any
party, or by correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer or
demurrer. The court may likewise, in its discretion, after notice to the
adverse party, allow, upon any terms as may be just, an amendment to any
pleading or proceeding in other particulars; and may upon like terms allow an
answer to be made after the time limited by ther code.” The Court has wide discretion to
allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd.
(a)(1).) Judicial policy favors resolution
of all disputed matters between the parties and, therefore, leave to amend is
liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945.) “[I]t
is an abuse of discretion for the court to deny leave to amend where the
opposing party was not misled or prejudiced by the amendment.” (Kittredge
Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Defendants’
counsel cites Plaintiff’s delay in seeking this amendment. However, delay alone is not a basis for denial of Plaintiffs’
motion. (Higgins v. Del Faro (1981)
123 Cal.App.3d 558, 564-565.) Defendants
must show that Plaintiffs’ delay prejudiced Defendants to justify denial of the
motion. (See Hirsa v. Superior Court
(1981) 118 Cal.App.3d 486, 490.) The
Court grants the motion on the condition that new discovery is limited to that
which is not duplicative of prior discovery and is likely to develop new
evidence in support of Plaintiff’s claims.
To that end, the Court ordered Plaintiff’s counsel to file a proposed
discovery plan relating to the amendment.
The Court has reviewed the discovery plan and grants the motion on the
condition that Plaintiff’s counsel (as well as Defendants’ counsel) may not propound
any additional discovery without authorization of the Court. Specifically, the Court orders as follows:
A. Special
Interrogatories Numbers 1, 2, and 16 through 25
Plaintiff seeks an order requiring Defendants to
supplement their responses to Special Interrogatories Numbers 1, 2, and 16
through 25. There is no basis to do
so. Defendants’ responses were served on
October 6, 2021. None of the issues identified
by Plaintiff’s motion clearly occurred after that date. The mere fact that Plaintiff’s counsel
believes Defendants make misrepresentations in their discovery responses is not
a basis to order them to supplement the responses. Plaintiff’s counsel is free to impeach
Defendants’ witnesses at trial. Therefore,
the Court denies leave to propound this discovery as a condition of the
amendment.
B. Requests
for Production of Documents
Plaintiff seeks “limited additional document discovery,”
specifically: (1) Records regarding storage of the NK-92 cells, and (2) Records
and communications regarding transfers of the NK-92 cells from Defendants to
third parties. Again, these categories
were covered by prior requests for production of documents. Plaintiff’s counsel previously served Request
for Production #1, which requested:
“DOCUMENTS sufficient to identify each of YOUR uses
(e.g., antibody-dependent
cellmediated cytotoxicity (ADCC) testing,
characterization assays, potency assays, quality control testing, stability
testing, etc.) of NK-92 CELL LINES RELATING TO NK-92-RELATED COMPOSITIONS,
including the nature of such use, the date of such use, the location of such
use, the PERSONS involved with such use, the PERSONS who had access to the
NK-92 CELL LINES, and the results of such use.”
Plaintiff’s
counsel previously served Request for Product #17, which requested:
“All DOCUMENTS reflecting any COMMUNICATION between YOU
and any other PERSON or entity RELATING TO the use of NK-92 CELL LINES.”
Plaintiff’s
counsel previously served Request for Production #46, which requested:
“DOCUMENTS sufficient to identify each transfer of NK-92
CELL LINES, including the identity of the transferor, the identity of the
recipient, the date of the transfer, the volume of NK92 CELL LINES that were
transferred, and the purpose for which the recipient intended to use the NK92
CELL LINES, if known.”
Plaintiff’s
counsel previously served Special Interrogatory #19, which requested:
“Identify
all locations where you have or someone on your behalf has stored any NK-92
cells from December 16, 2011, to the present.
Plaintiff’s
counsel does not identify any reason why these responses do not address the
issues giving rise to the new claims. Therefore,
the Court denies leave to propound new document requests as a condition of the
amendment.
C. New
Special Interrogatory
Plaintiff seeks to propound a new
special interrogatory regarding whether Defendants have ever used the NK-92
cells for ADCC testing with acceptance criteria for any other
compounds/biologics other than isatuximab.
This request would be duplicative of the following special
interrogatories:
SROG #1 – Explain how you have used
or intend to use the NK-92 cells in connection with manufacturing and testing
of NK-92 related compounds.
SROG #16 – Identify every
pharmaceutical or biological material or therapeutic agent other than Sarlcisa
that you or someone on your behalf has tested or manufacturerd using NK-92
cells from December 16, 2011 to the present.
SROG #17 – Gor each material or
agent identified in your response to SROG #16, describe how the NK-92 cells
were used.
SROG #18 – For each material or
agent identified in your response to SROG #16, identify all documents relating
to that use.
The mere fact that Plaintiff’s counsel believes
Defendants make misrepresentations in their discovery responses is not a basis
to order them to supplement the responses.
Plaintiff’s counsel is free to impeach Defendants’ witnesses at trial. Therefore, the Court denies leave to propound this
discovery as a condition of the amendment.
D. PMQ
Depositions
Plaintiff’s counsel requests PMQ
testimony relating to the “subject matter of the amendments to the Complaint,
including, but not limited to, any modifications of the NK-92 cells, all uses
of the NK-92 cells for other isatuximab, and any uses of the NK-92 cells after
Brink terminated the 2011 License on January 19, 2021.” Plaintiff’s counsel had the opportunity to
take depositions on these topics.
Therefore, the Court denies leave to take these depositions as a
condition of the amendment.
E. Limited
Percipient Witness Testimony
Plaintiff’s counsel seeks to take
three additional depositions: (1) Laura Geagan, (2) Angela Virone-Oddos, and
(3) Florence Attenot. The Court authorizes
these depositions.
F. Defendants’
Additional Depositions
Defendants’
counsel seeks to re-take the depositions of Barry Simon, Peter Johnson, Jerald
Gnuschkle, and Mark Kokes. The Court cannot
conclude that these depositions are unnecessary. The
interpretation of a contract is a judicial function. (Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal.App.4th 1107, 1126, citation omitted.) In engaging in this function, the trial court
“give[s] effect to the mutual intention of the parties as it existed” at the
time the contract was executed. (Ibid.,
citing Civ. Code, § 1636.) Ordinarily,
the objective intent of the contracting parties is a legal question determined
solely by reference to the contract’s terms.
(Ibid., citing Civ. Code, § 1639.) However, extrinsic evidence is admissible to
interpret an agreement when a material term is ambiguous. (Ibid., citations omitted.)
There may be an ambiguity in the
parties’ licensing agreement. The
license states that it is a “non-commercial license” that permits Defendants to
use the NK-92 cells for “the Purpose” of the license. The “Purpose” allows Defendants to “develop
and/or manufacture the Modified Cell Line for use on Antibody Products by [Defendants]
for “[b]atch or quality control release assays for one or more Antibody
Products” and “[o]ther research and development purposes pertaining to Antibody
Products.” Yet, another provision of the
license states: “The license shall not include the sale of a Commercial Product
by [Defendants] or the use of the Cells Lines or Modified Cell Lines for batch
or quality control release assays for one or more Antibody Products.” Plaintiff takes the position that the former
language is boilerplate contract language, and the second provision is an “opt
out.” Defendants take the position that the
license allowed them to administer batch or quality control release assays in
research and development but not commercial settings. There may be ambiguity associated with this
issue because neither explanation is clearly dispositive.
G. Costs
Defendants ask the Court to
condition the amendment on Plaintiff paying the costs associated with the
additional depositions. The Court
declines to do so.
CONCLUSION
AND ORDER
Based upon the foregoing, the Court
orders as follows:
1. Plaintiff’s
motion for leave to file an amended complaint based upon the condition that
Plaintiff (and Defendants) may not conduct any discovery unless authorized by the
Court.
2. The
Court authorizes only the following discovery: (1) Depositions of Laura Geagan, Angela
Virone-Oddos, and Florence Attenot; and (2) Depositions of Barry Simon, Peter
Johnson, Jerald Gnuschkle, and Mark Kokes.
All depositions conducted in the United States shall be taken remotely
unless the parties stipulate otherwise. The
Court orders the parties to meet-and-confer to discuss when and how to take the
depositions of Angela Virone-Oddos and Florence Attenot.
3. The Court denies Defendants’ request to
order Plaintiff to pay any costs associated with this additional discovery.
4. Plaintiff’s counsel shall provide
notice and file proof of such with the Court.