Zync, Inc. v. Dominik Odak et al.

The court issued an order in January 2026, based on a stipulation from the parties. That order stated, “BMW Defendants and Xperi shall each respond to the First Amended Complaint, by Motion to Dismiss, Demurrer and/or Motion to Strike, by January 26, 2026.” Any such motions or demurrers were set for hearing on May 12, 2026. The court takes judicial notice of its prior orders on its own motion. (Evid. Code, § 452, subd. (d).) 13

Only the BMW Defendants complied with the court’s order, filing a motion to dismiss, demurrer, and motion to seal on January 26, 2026. Zync opposes the motion to dismiss and the demurrer. Xperi filed an untimely demurrer on February 2, 2026, and untimely motions to dismiss and to seal on February 4, 2026, without leave of court.

Discussion of BMW Defendants’ Motion to Dismiss

The BMW Defendants’ motion to dismiss is brought under Code of Civil Procedure sections 410.30 and 418.10; they argue the case must be heard in a different forum. (See Notice of Motion at p. i:6-7.) The BMW Defendants “request for incorporation by reference,” which does not cite any provision of the Evidence Code, is denied. The request for judicial notice made in a footnote in their supporting memorandum is also denied. (Cal. Rules of Court, rules 3.1113(l) and 3.1306(c).)

The BMW Defendants’ motion is based on exhibits A and B to the declaration of counsel Lee Rubin. Those exhibits show that Zync and BMW’s German parent company, Bayerische Motoren Werke Aktiengesellschaft, entered into a confidentiality agreement in September 2021, prior to Zync and BMW entering into the Pilot Project Agreement. The agreement is in both German and English. Section 0.1 of the confidentiality agreement (exhibit B) defines “trade secrets” as “technical as well as commercial information which are not generally known or not readily accessible and therefore are of commercial value, as especially those which are marked as trade secrets” Section 0.9 defines “Connected Company” to include subsidiaries of a party to the agreement such as BMW North America LLC.

Section 1.1 further states that the confidentiality agreement “shall apply to any and all confidential information, including Trade Secrets, directly or indirectly disclosed by a Party or a Connected Company of a Party in connection with the Project, regardless of whether this information was disclosed to the other Party or to a Connected Company of this Party.” Section 9 of the confidentiality agreement states: “This Agreement shall be governed by the laws of the Federal Republic of Germany and the exclusive place of jurisdiction shall be Munich, unless a different place of jurisdiction is required by mandatory law.”

The Pilot Project Agreement (exhibit A to the Rubin declaration), which both the original complaint and the FAC allege Zync was a party to, incorporates the confidentiality agreement, including its forum selection clause. Section 5 of the Pilot Project Agreement (General Information) states, under “Confidentiality,” that the existence of the Agreement, the information disclosed within it, “as well as any other documents or information made available by Zync in connection with this Pilot Project constitute Confidential Information (as defined in the Confidentiality Agreement, dated September 12, 2021, between the parties the ‘NDA’).

All such Confidential Information shall be subject to the terms and conditions of the NDA.” Section 5 further states, under “General,” that: “Except for the NDA, this Agreement is the sole agreement with respect to the subject matter hereof and supersedes all other agreements and understandings between the Parties with respect to the same.” (Court’s emphasis.)

A defendant who has already entered a general appearance may file an inconvenient forum motion under section 410.30. (Britton v. Dallas Airmotive, Inc. (2007) 153 Cal.App.4th 127, 134–135; Global Financial Distributors Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 192 (Global Financial).) A motion to stay or dismiss under Code of Civil Procedure sections 410.30 and 418.10 that is based on a forum selection clause “is a special type of forum 14

non conveniens motion” and “[t]he factors that apply generally to a forum non conveniens motion do not control” the analysis where a mandatory forum selection clause is present. (Berg, supra, at p. 358.) “Instead, the test is simply whether application of the clause is unfair or unreasonable; if not, the clause is usually given effect.” (Drulias v. 1st Century Bancshares, Inc. (2018) 30 Cal.App.5th 696, 703 (Drulias).) “Both California and federal law presume a contractual forum selection clause is valid and place the burden on the party seeking to overturn the forum selection clause.” (Schlessinger v.

Holland America (2004) 120 Cal.App.4th 552, 558.) As the California Supreme Court has reiterated: “‘No satisfying reason of public policy has been suggested why enforcement should be denied a forum selection clause appearing in a contract entered into freely and voluntarily by parties who have negotiated at arm’s length.’” (EpicentRx, Inc. v. Superior Court (2025) 18 Cal.5th 58, 73 (EpicentRx).)

The party seeking to avoid enforcement of a forum selection clause bears the burden to show that its enforcement would be unreasonable, unless the claims at issue are based on unwaivable rights created by California statute. (Drulias, supra, 30 Cal.App.5th at p. 703.) “Claims that the previously chosen forum is unfair or inconvenient are generally rejected.” (Ibid.) “In the context of forum selection clauses, enforcement is considered unreasonable where the forum selected would be unavailable or unable to accomplish substantial justice or there is no rational basis for the selected forum.” (Id. at p. 707.) Even a California resident will normally be bound by a forum selection clause; that the selected forum may offer fewer protections than a California one (such as the right to a jury trial in civil cases) is not a basis for refusing to enforce a contractual forum selection clause. (See EpicentRx, supra, 18 Cal.5th at pp. 73-77 [discussing cases].)

The BMW Defendants’ evidence is sufficient to demonstrate that the forum selection clause in the confidentiality agreement applies to all of Zync’s claims alleged against them. The original complaint and the FAC both confirm that all alleged wrongdoing by the BMW Defendants relates to alleged theft of technology that constitutes “trade secrets” and “confidential information” as defined in the confidentiality agreement and is subject the to terms of the confidentiality agreement, including the forum selection clause, that are incorporated into the Pilot Project Agreement.

The Pilot Project Agreement is expressly subject to section 9 of the confidentiality agreement. The only logical interpretation of Section 9 of the confidentiality agreement is that the forum selection clause here is a mandatory one requiring any lawsuit arising from the disclosure or misappropriation of confidential information in connection with the Pilot Project to be brought in Munich, Germany. (See Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000, 1011 [finding clause mandatory where it stated, “the Court of Chancery of the State of Delaware (or, if such court lacks jurisdiction, any other state or federal court located within the State of Delaware) shall be the sole and exclusive forum ... for any derivative action.”]; Cal- State Business Products & Services, Inc. (1993) 12 Cal.App.4th 1666, 1672, fn. 4 [“[A]ny appropriate state or federal district court located in the Borough of Manhattan, New York City, New York shall have exclusive jurisdiction over any case or controversy arising under or in connection with this Agreement ...” found to be mandatory language].)

When the burden shifts to Zync, it is unable to demonstrate that enforcement of the mandatory forum selection clause would be unreasonable. Zync’s argument that traditional forum non conveniens analysis applies here is unpersuasive, as Zync undeniably entered into a 15

contract with Bayerische Motoren Werke Aktiengesellschaft that contains a forum selection clause. Contract interpretation is a question of law for the court, and the court finds that the incorporation of the forum selection clause into the Pilot Project Agreement applied the clause to both Zync and BMW. Zync CEO Rana Sobhanny’s claim in his opposing declaration that he did not believe the clause applied to Zync is unpersuasive. “[A] witness is incompetent to give an opinion on the meaning of the contract language.” (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 715 [interpretation of written contract is solely a judicial function unless the interpretation turns upon the credibility of extrinsic evidence].)

Zync does not argue that there is no rational basis for the selected forum, Germany, or that the courts of the Federal Republic of Germany would be unable to accomplish substantial justice. The court disagrees with Zync’s argument that the confidentiality agreement is “irrelevant” to its claims or that its claims are not based on trade secrets or confidential information as defined in the confidentiality agreement. The original complaint and the FAC contradict Zync’s argument.

Zync argues that the forum selection clause should not be enforced because Zync was fraudulently induced into signing the confidentiality agreement/NDA (presumably by nonparty Bayerische Motoren Werke Aktiengesellschaft, the only other party to that agreement). But the FAC omitted the existence of the confidentiality agreement (even though the evidence establishes that Zync was always aware of it). The FAC did not allege that confidentiality agreement (as opposed to the Pilot Project Agreement) was the product of fraud. Finally, Zync has failed to show that enforcing the previously unacknowledged forum selection clause would be “unconscionable” because of distance or the expense to Zync. (Drulias, supra, 30 Cal.App.5th at p. 703 [“Claims that the previously chosen forum is unfair or inconvenient are generally rejected.”].)

The BMW Defendants’ motion to dismiss all causes of action alleged against them in the FAC is granted. If Zync wishes to pursue this litigation, it must do so in Munich, Germany.

Discussion of the BMW Defendants’ Demurrer to the FAC

The BMW Defendants’ demurrer to the FAC’s first, second, third, fifth, sixth, and seventh causes of action on the ground that they fail to state sufficient facts as alleged against them is overruled as moot in light of the court’s ruling granting the BMW Defendants’ motion to dismiss.

Discussion of Xperi’s Motion to Dismiss

As mentioned above, Xperi failed to file its motion to dismiss by the January 2026 deadline set by this court’s prior order. The motion does not mention, much less explain, that failure. But nor does Zync comment on it in its opposition to Xperi’s motion. Because the untimely filing did not prevent Zync from filing a substantive opposition (and because both the motion and the opposition largely restate arguments from the BMW Defendants’ motion), the court will exercise its discretion to consider it on the merits.

As an initial matter, Xperi is correct that it may raise the forum selection clause in the confidentiality agreement between Zync and Bayerische Motoren Werke Aktiengesellschaft 16

that was incorporated into the Pilot Project Agreement between Zync and BMW as a potential bar to the claims alleged against it despite not having signed it. Standing to assert a contractual forum selection clause is a question of law for the court. (Bigna v. Fike (2000) 80 Cal.App.4th 229, 233.) Parties “closely related” to the contractual relationship, such as parties like Xperi that are alleged to have participated in fraudulent misrepresentations, may enforce a forum selection clause. “To hold otherwise would be to permit a plaintiff to sidestep a valid forum selection clause simply by naming a closely related party who did not sign the clause as a defendant.” (Lu v.

Dryclean-U.S.A of California, Inc. (1992) 11 Cal.App.4th 1490, 1494.) “The key to the closely related test is whether the nonsignatories were close to the contractual relationship, not whether they were close to the third party signator. This makes sense because the forum selection clause is part of the underlying contract, and it is the contractual relationship gone awry that presumably spawns litigation and activates the clause. Giving standing to all closely related entities honors general principles of judicial economy by making all parties closely allied to the contractual relationship accountable in the same forum, thereby abating a proliferation of actions and inconsistent rulings.” (Bigna, supra, 80 Cal.App.4th at p. 235.)

Here the FAC adds Xperi as a defendant for the first time and expressly alleges that it directly misappropriated Zync’s trade secrets and aided and abetted the alleged fraud and misappropriation by the BMW Defendants. Based on the FAC’s allegations, Xperi has standing the assert the contractual forum selection clause. Its motion to dismiss the causes of action in the FAC alleged against it is granted for the same reasons as the BMW Defendants’ motion.

Discussion of Xperi’s Demurrer to the FAC

Xperi’s demurrer to the FAC’s first, fourth, fifth, sixth and seventh causes of action on the ground that they fail to state sufficient facts is overruled as moot in light of the court’s ruling on Xperi’s motion to dismiss.

Associated Motions to Seal by Defendants

The BMW Defendants and Xperi have each brought motions to seal certain portions of their papers. The BMW Defendants’ motion was timely filed on January 26, Xperi’s motion was filed late on February 4. These motions are not opposed by Zync.

A court has the authority to order that a record be filed under seal if it expressly finds facts that establish: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less-restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550.)

The California Rules of Court do not define what constitutes an “overriding interest.” Instead, this has been left to case law. Different “[c]ourts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3.)

A declaration supporting a motion to seal should be specific, not conclusory, as to the facts supporting the overriding interest. If the court finds that the supporting declarations are conclusory or otherwise unpersuasive, it may conclude that the moving party has failed to demonstrate an overriding interest that overcomes the right of public access. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at pp. 301, 305.).

BMW Defendants’ Motion to Seal

The BMW Defendants move to seal portions of their motion to dismiss and demurrer. (Notice of Motion at pp. 2:16-3:7.) But the motion does not request that any part of the declaration in support of the motion to dismiss or the exhibits to that declaration be sealed, despite the declaration having been listed in the notice of lodging of documents conditionally under seal. (Notice of Lodging at p. 2:10-12.) The motion is supported by a conclusory declaration from Lee Rubin, which states that the motion should be granted because BMW North America and Zync have a contractual obligation under the Pilot Project Agreement to not disclose its existence, terms, or any documents or information exchanged between the parties. (Rubin Decl., ¶ 3.)

This overstates the scope of the “confidentiality” provision in the Pilot Project Agreement. The motion also does not seek to seal the copies of the Pilot Project Agreement or the confidentiality agreement between Zync and Bayerische Motoren Werke Aktiengesellschaft submitted with the motion to dismiss. The mere existence of a contractual choice of forum provision designating Munich, Germany as the selected forum cannot reasonably be considered a trade secret.

The BMW Defendants’ motion to seal is denied for failure to demonstrate an overriding interest that overcomes the right of public access. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at pp. 301, 305.)

Xperi’s Motion to Seal

The court will exercise its discretion to consider Xperi’s late motion to seal. Xperi seeks to seal only portions of its motion to dismiss and does not seek to seal any portion of its demurrer. (Notice of Motion at pp. 2:19 -3:11.) Unlike the BMW Defendants, Xperi also moves to seal the exhibits attached to the declaration in support of its motion to dismiss but not the declaration itself, despite that declaration being listed in its notice of lodging of documents conditionally under seal. (Id. at p. 2:8-10.) Xperi’s motion is supported by a conclusory declaration from Erik Savitt, which simply echoes the declaration in support of the BMW Defendants’ motion to seal based on Xperi’s “understanding.”

Xperi’s motion to seal is denied for failure to demonstrate an overriding interest that overcomes the right of public access. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at pp. 301, 305.)

Conclusion

The separate motions to dismiss the FAC by the BMW Defendants and Xperi are both granted. The demurrers to the FAC are both overruled as moot in light of the ruling on the motions to dismiss. Both motions to seal are denied. The court will prepare the order.

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