The opinion of the court was delivered by: Hayes, Judge
The matter before the court is Defendant's Motion for Summary Judgment or in the Alternative, Partial Summary Judgment. (Doc. # 24).
Plaintiff Victor Manneh, a scientist, filed this action against his former employer Defendants Iverness Medical Innovations, Inc. and Innovations Research, LLC (collectively "Iverness"); David Scott, an employee of Iverness; and Does 1-50, in the Superior Court of the State of California for the County of San Diego. (Doc. # 1). Plaintiff alleges the following claims: (1) recision of his severance agreement; (2) declaratory relief that the severance agreement does not waive Plaintiff's claims; (3) breach of an agreement to transfer laboratory equipment to Plaintiff; (4) a common count for the reasonable value of Plaintiff's services; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) breach of Plaintiff's employment contract; and (8) intentional interference with economic advantage. Id. Plaintiff seeks to recover damages for the value of the laboratory equipment he did not receive, or alternatively, for the reasonable value of the services he performed in exchange for the equipment; for the lost profits caused by a delay in opening his own business when he did not receive the equipment; for the value of an option to purchase 7,500 shares of stock he did not receive; for not being named as an inventor on a patent; and for a business opportunity he lost because he did not receive the equipment. Id. On April 10, 2008, Defendants filed a Notice of Removal removing the case to federal court. Id. On June 15, 2009, Defendants moved for summary judgment, or in the alternative, partial summary judgment. (Doc. # 24).
I. Plaintiff's Employment Agreement and Stock Option Agreements
Plaintiff was a scientist living in San Diego when Iverness recruited him to move to Bedford, England to start and run a cardiovascular research team. (Doc. # 24, Ex. 2, Manneh Depo. at 10-18*fn1 ). Plaintiff was initially reluctant to leave San Diego and told Defendant David Scott, the Chief Scientific Officer for Iverness, that he would not do so unless he received stock options in Iverness. Id. at 77-79. On October 2, 2002, Plaintiff signed an "Employment Agreement" which laid out the terms of his employment with Iverness. (Doc. # 24, Ex. 4, Employment Agreement at 80-92). The Employment Agreement set Plaintiff's annual compensation at $140,000 and included a stock option provision that granted Plaintiff 30,000 shares of stock at $10.85 "vesting in three equal installments of 10,000 options on the date of the anniversary of the date of issue." Id. at 80. The Employment Agreement stated that Plaintiff was not eligible for a bonus. Id. The Employment Agreement stated that Plaintiff's "normal working hours shall be 37.5 hours per week, Monday to Friday with a 1/2 hour for lunch, but you may be expected to work additional hours as required by the Company and you are required to be flexible in the hours that you work." Id. at 81.
The employment agreement required three months' written notice if either party wished to terminate the employment. Id. The notice period was waivable by either party, and a provision stated "[a]t the discretion of the employer, a payment in lieu of notice may be given." Id. The employment agreement also governed the rights to intellectual property Plaintiff created while employed by Defendant Iverness. Id. at 84. When Plaintiff was acting as an employee in the United States, United States law applied and when he was acting as an employee in the United Kingdom, English law applied. Id. at 84-85. In the section under United States law, the agreement stated that all intellectual property "shall belong to and be the absolute property of the Company or such associated Company or third party as the Company may deem appropriate, subject to your statutory rights as inventor." Id. at 84.
Plaintiff relocated to Bedford, England in January of 2003. (Doc. # 24, Ex. 2, Manneh Depo. at 25-26). Upon arriving in Bedford, Plaintiff was presented with a "Non-Qualified Stock Option Agreement for Employees" which contradicted the Employment Agreement and stated that the stock would vest over a four-year period with four equal installments of 7,500 shares vesting each year. (Doc. # 24, Ex. 11, January 15, 2003 Stock Option Agreement at 106-110). Plaintiff discussed the discrepancy with Scott on January 15, 2003. (Doc. 24, Ex. 2, Manneh Depo. at 17-21). Scott told Plaintiff there had been a mistake in Plaintiff's original Employment Agreement because the three-year vesting period was against Iverness's company policy. (Doc. # 24, Ex. 4, Employment Agreement at 80-89; Doc. 24, Ex. 2, Manneh Depo. at 17-21; Doc. # 24 at 20). Plaintiff states in his declaration that in addition to Scott, he also spoke with "two other Iverness officers and directors, Jerry McAleer and Paul Hempel, about this discrepancy." (Doc. 32-3, Manneh Declaration at 3, ¶7). McAleer told Plaintiff that Iverness "does not give three-year vestings on stock options as a matter of company policy." Id.
Plaintiff states in his declaration that Scott replied that he would "find a way to fix [the] mistake if it becomes a problem later, that is, if my employment was terminated before four years." Id. at ¶8. Plaintiff states that "[i]n reliance on this promise, I signed the stock option agreement (with the incorrect four-year vesting)." Id. In March or April of 2003, an additional 5,000 shares of stock with a four-year vesting period were issued to Plaintiff. Id. at ¶ 9; Doc. # 24, Ex. 12. This second set of options could be exercised at $16.23 per share. (Doc. # 32-3, Manneh Declaration at 3, ¶9). Plaintiff states that the second stock option agreement was "a performance bonus" for introducing "several technologies for developing high sensitivity protein assays." (Doc. # 32-3, Manneh Declaration at 3, ¶ 9). Plaintiff states that in early 2007, he looked at reported compensation packages on Defendant Iverness's website and learned that "both Scott and McAleer had stock options plans, as of 2001, that had three year vestings." Id. at ¶ 40; Doc. 32-4, Ex. 21.
II. End of Plaintiff's Employment and Transfer of Equipment
In August of 2003, Plaintiff returned to San Diego "temporarily... for personal reasons." Id. at ¶10. At around the same time, Iverness acquired Genicon, a company in San Diego. Id. Defendant Scott and Plaintiff discussed relocating Plaintiff's job to San Diego. Id. The parties agreed that Plaintiff would "start up, staff and manage a research and development laboratory in San Diego for Iverness to continue the work on the cardiology meter project." Id. DefendantInnovations Research was formed in January 2004 "as an Iverness subsidiary to own and operate the new San Diego research and development laboratory." Id. Plaintiff worked in San Diego for approximately two years before Scott asked whether he would be willing to relocate to Scotland. Id. at ¶¶ 13-15; Doc. #24, Manneh Depo. at 80-81. Scott told Plaintiff that Iverness was relocating its research and development facilities and would be closing down the San Diego laboratory. Id. Plaintiff was not willing to relocate but suggested that he could instead start his own laboratory and work collaboratively with Iverness on future projects. Id.
At a meeting in London, England on July 29, 2005, Scott told Plaintiff that scientists at the Scotland facility were "working on a new electrochemical platform for the cardiology meter project" and that the team needed certain chemical reagents made. (Doc. # 32-3, Manneh Declaration at 5, ¶14). Scott had wanted Plaintiff to relocate to Scotland to oversee this project, but Plaintiff suggested that he would do the work in San Diego on an expedited schedule in exchange for the equipment in the Innovations laboratory in San Diego. (Doc. # 32-3, Manneh Declaration at 5, ¶16). Plaintiff states that he and Scott discussed the "extraordinary effort" which would be required to complete the reagent project on top of winding down the business of the Innovations laboratory. Id. at ¶ 16. Plaintiff states that Iverness "didn't have the expertise to do what they needed to do" at the Scotland office without his assistance, and his efforts were "valuable work they really badly needed." (Doc. 24, Ex. 2, Manneh Depo. at 83-84). Plaintiff states that Scott told him to begin work immediately and that a team would come to San Diego from England "to work out the details to implement the deal" for the laboratory equipment. (Doc. # 32-3, Manneh Declaration at 5, ¶16). Plaintiff states that he would have looked for a new job instead of immediately commencing work on the reagents if Scott had not made that statement. Id. Plaintiff estimates that creating the reagents would normally take about six months of work. Id. However, Plaintiff agreed to create the reagents for delivery by October 31, 2005, when the San Diego laboratory was scheduled to close. Id. at ¶¶ 16, 18, 21. Plaintiff states he also discussed the problem with his stock options with Scott and that he told Scott "that since I was leaving Iverness after three years, before the four-year vesting for the 7,500 share balance of the 30,000 shares, the four-year vesting had become a problem." Id. In response "Scott assured me again he (Scott) would fix his earlier mistake." Id.
On August 9, 2005, Plaintiff met with three Iverness employees in San Diego to discuss the "specifics of manufacturing the reagents and the possible timing for completion." Id. at ¶19. One of the employees, Oliver Davies, said the timeline would normally be six months, an assessment that Plaintiff and the other meeting participants shared. Id. However, all "agreed that the work had to be completed sooner." Id. Plaintiff states that he needed special equipment to manufacture the reagents, including a Malvern particle sizer, which he was authorized to purchase in late September. Id.
Plaintiff states in his deposition that he and Iverness employees continued to work out the details of the agreement to produce the reagents in exchange for the equipment from July 29, 2005 to September 12, 2005, when he met with Steve Howell, Andrew Gill, and David Lang, three Iverness employees from the United Kingdom, in San Diego. Id; Doc. #24, Ex. 2, Manneh Depo. at 85-86. Plaintiff characterizes this meeting as "final discussions" of the laboratory equipment agreement. (Doc. # 32-3, Manneh Declaration at 6, ¶ 20). These final discussions concerned two items of equipment which would not be included in the exchange for the reagents (one machine from the Innovations laboratory and the new particle sizer) and a possible $100,000 payment by Iverness to get Plaintiff's new business started. Id. at ¶ 21.
Plaintiff states that whether his new business would "do future work for Iverness was to be discussed between Scott or Howell and me" at some point in the future. Id.
On September 12, 2005, Plaintiff received an email from Anne Warner, Iverness's general counsel. Id. at ¶ 24. The email stated that to "wind down Innovations Research... the following needs to be done: 1) We need a copy of the lease in order to figure out how to terminate it or to transfer it to you if you intend to keep the same space. 2) You need to decide the date on which you will provide notice to the current five (?) employees.... 3) We will draft a separate severance letter for you, referring to the terms of your employment agreement. It is still my understanding that you were given notice on July 29th by Dave.... 4) Your severance letter will also contain the agreement about the handover of certain equipment if you hit the milestones to be defined by Steve Howell this week. I suggest to you that you set up a corporation between now and the close-down to transfer the equipment into." (Doc. 32-4, Ex. 15, at 193). Plaintiff replied by email that Warner was incorrect about the status of termination notices and about the agreement, and stated "Please in the future be sure of our status before announcing termination notices as you are not familiar with my discussions with Dave Scott, Olly Davis and Steve Howell. Please read my contract or ask Katie Garret to read it. We are discussing the transfer activity so both the Stirling group and Innovations Research or the new entity will mutually benefit." Id. at 194.*fn2
On September 16, 2005, Plaintiff circulated meeting minutes for the September 12, 2009 meeting with Howell, Gill, and Lang via email to the three other meeting participants and to Steve Leisenring, who "was coordinating a lot of the money wise and the activities with Iverness." (Doc. 24, Ex. 2, Manneh Depo. at 63-64). Plaintiff states the email "recorded what was agreed to" at the meeting (Doc. 32-3, Manneh Declaration at 6, ¶ 20) and allowed all participants to "put comments on my version of the meeting minutes." (Doc. 24, Ex. 2, Manneh Depo. at 65-66). Plaintiff's email states: "Summarized the meeting minutes. Will distribute Monday [S]an Diego time with your comments" (Doc. 24, Ex. 5, at 93). The meeting minutes are attached to the email as a PDF file. Id. The minutes list the meeting attendees and describe what was discussed at the meeting, laying out the progress Plaintiff had made on the reagent project, the work still to be done, and the completion date: "Final shipment of these reagents will be completed by October 31, 2005." Id. at 94-95. Finally, under the heading "AGREEMENTS," three sets of bullet points are listed:
Upon delivery of the agreed reagents IR is to receive: ! All IR equipment except for the RLS View Genicon Instrument ! $100,000 payment upon approval ! Upon evaluation of reagents and decision to pursue electrochemical approach, SMI*fn3 will contract for additional reagents and development work
Issues that need further discussion with Dave Scott or Steve Howell (or SMI representative): ! IR's new Entity and its freedom to operate: Freedom to operate on platforms that IR patented and future ideas including but not limited to a homogenous assay and micro fluidics ! Ownership of IP generated from production of GOD reagents ! Possibility of ...