F I E - eff.org · 29/10/2015  · (the "Appeal"). 1 The Appeal was brought by Bunner to contest an order granting in part DVD CCA '5 request for a preliminary injunction against

415 433 6:m P.02/11

COURT OF APPEAL OF THE STATE OF CALIFORNIASIXTH APPELLATE DISTRI cr

F I EJAt-J 2 1 2004

Cnurt ~f Appeal. Sixth App. Dist.

Appeal from the Superior Court of the State of CaliforniaCounty of Santa Clara, Honorable William J. Elfving, Presiding Judge

Case No.1-99-CV-786804

DVD COpy CONTROL ASSOCIATION'SNOTICE OF MOTION TO DISMISS APPEAL FOR MOOTNESS

WEn... GOTSHAL & MANGES UPJARED B. BOBROW

(BarNo. 133712)CHRISTOPHER J. COX

(BarNo. 151650)KIMBERLY A. SCHMITT

(Bar No. 203600)201 Redwood Shores Parkway

Redwood Shores, California 94065Telephone: (650) 802-3000

Facsimile: (650) 802-3100

~ GOTSHAL & MANGES LLPROBERT G. SUGARMAN.GREGORY S. COLEMAN..

767 Fifth AvenueNew Yark, New Yark 101 S3Telephone: (212) 310-8000Facsimile: (212) 310-8007

Attorneys for Plaintlff~RespondentDVD COpy CONTROL ASSOCIATION, INC.

NYI :\IDJ')4'04'()fTIO4!.D0C\i211 LCXlJ3

415 433 6382 P..63/11J ~ 22- 2004 15:01 ~r-!i:i

Pursuant to California Ru1es of Court 41, DVD Copy Control

Association, Inc. ("DVD CCA") hereby respectfully requests that this Court issue

an order dismissing as moot the appeal now pending in the above-captioned matter

(the "Appeal").

The Appeal was brought by Bunner to contest an order granting1

in part DVD CCA '5 request for a preliminary injunction against Bunner and

others;

PJaintiffDVD CCA has now voluntarily dismissed the2.

complaint in the superior court, thereby extinguishing the preliminary injunction;

The issue before this Court - whether the preliminary injunction3.

was correctly issued - is therefore moot.

WHEREFORE, DVD CCA hereby requests that this Court issue an

order dismissing as moot the appeal currently pending before it in this matter.

Dated: January 21,2004.

.WEn.., GOTSHAL & MANGES LLPSilicon Valley Office201 Redwood Shores ParkwayRedwood Shores, CA 94065Tel~hone: (650) 802-3000FacsImile: (650) 802-3100

IT IS SO ORDERED

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Appellate Case No.: 8021153

COURT OF APPEAL OF THE STATE OF CALIFORNIAslXm APPELLATE DISTRICT

DVD COpy CONTROLASSOCIATION, INC.,

PlaiDtiffs- Respo n den t,

v.

ANDREW BUNNER

Defendant-Appellant.

Appeal from the Superior Court of the State of CaliforniaCounty of Santa Clara, Honorable William J. Elfving, Presiding Judge

Case No. CV-786804

MEMORANDUM OF POINfS AND AUTHORITIES IN SUPPORT OFDVD COpy CONTROL ASSOCIATION'S MOTION TO DISMISS

APPEAL AS MOOT

WE~ GOTSHAL & MANORS LLPROBERT G. SUGARMAN.GREGORY S. COLEMAN..BETH L. LEMBERGER ..767 Fifth AvenueNew York, New York 10153Telephone: (212) 310-8000Facsimile: (212) 310--8007

WEn.., GOTSHAL & MANGES UPJARED B. BOBROW(BarNo. 133712)CHR.ISTOPHER J. COX(BarNo. 151650)KIMBERLY A. SCHMI1T(Bar No. 203600)201 Redwood Shores ParkwayRedwood Shores, California 94065TelephoD~: (650) 802-3000Facsimile: (650) 802-3100

Attorneys for Plaintiff-RespondentDVD COpy CONTROL ASSOCIATION, INC.

MYI;\I ZJ3$$4~~I.~a7"~

J ~ 22- 2004 15:01 ~tF 415 433 ~ P. E/11

Pursuant to Rule 41 of the California Rules of Court, DVD Copy

Control Association, Inc. ("DVD CCA ") by and through the undersigned counsel

hereby submits this Memorandum of Points and Authorities in Support of its

Motion to Dismiss the Appeal in the above-captioned matter as moot.

I. The Appeal Should Be Dismissed As Moot

them as moot when the underlying superior court action is resolved or dismissed)

Creek Care Center. 108 CaJ.App.4th 13. 133 CaJ.Rptr.2d (5th Dist. 2003);

People v. Aurelio R, 167 Cal.App.3d 52,212 Cal.Rptr. 868 (2nd Dist. 1985).1

The appeal now before this Court was brought by Bunner to contest

the issuance of a preliminary injunction by the Superior Court for Santa Clara

County in the, underlying action. DVD CCA has now voluntarily dismissed that

moot.

The dismissal of moot appeals rests on the bedrock legal principle

that courts should not render advisory opinionsJ but only opinions on actual

controversies ripe for adjudication. Coleman v. Department of Personnel

1 ~ ~ In Re Rav Gordon DavenDorl 40 F .3d 298, 299-300 (9th Cir. 1994); US. v.Ford, 650 F.2d 1141) 1142-43 (9d1 Cir. 1981).

2)-lV1:\' JJ3.5.54'4)4IqpT#OofI.D0C\42'711.0003

J~22-2004 15:02 ~~ 415 433 6:E2 P.E/11

Administration, (1991) 52 Cat.3d 1102, 1126,278 Cal.Rptr. 346; Lynch v.

Superior Court (1970) 1 Cat.3d 910, 912.83 Cal.Rptr. 670; Donato v. Board of

Barber Examiners, 56 CaI.App.2d 916,133 P .2d 490 (2nd Dist. 1943); As stAted

by the court in Donato: '7he task entrusted to us is to decide cases; the rendition

of opinions is but an incident to the perfonnance of that task."

On rare occasions appellate courts retain and decide appeals that are

moot, but only "where the issues are important and of continuing interest." See

Burch v. George, 7 Cal.4th 246,253 n.4 (1994), 866P.2d 92,96 n.4(dealing

addressing whether state will and trust rules were preempted by federal ERISA

laws),. Jasperson v. Jesstca'sNail Clinic, 216 Cal.App.3d 1099,265 Cal.Rptr. 30

(dealing with d1e validity of AIDS anti-discrimination statutes); Deronde v. The

Regents Of The University Of California, 28 Cat.3d 875,625 P.2d 220, 172

CaJ.Rptr. 677 (1981) (dealing with affinnative action in college admissions). That

is not the case here. The issues to be resolved on this appeal deal with the

particular facts of this particular case-- (i) whether th~ degree of public

dissemination of the uade secrets which are the subject of the injunction issued

below had extinguished their trade secret status; (ii) whether the efforts of the

plaintiff in this case to preserve the secrecy of the trade secrets were adequate; and

(Iii) whether this defendant knew or had reason to know that the trade secrets he

published were obtained by improper means. These issues are not "important and

of continuing interest." .Moreover, this case is only at the preliminary injunction

3NYI ,"23~SS1~~ L~71 &.0003

J ~ 22- 2004 15:02 ~lrj::- 415 433 ~ P.07/11

stage. As a resu1t the record. necessarily. is not as well developed as would be a

record after discovery and a trial on the merits. This court should not be reviewing

this case on the basis of a less d1an fully developed record. Finally> in most of the

cases in which the courts have rendered decisions despite the mootness of the

matter, it bas been at the request of both parties to the litigation. Obviously, that is

not the case here.

ll. Conclusion

For all the foregoing reasons, it is respectfully submitted that this

appeal should be dismissed.

Dated: January 21,2004

WElL, GOTSHAL & MANGES LLPSilicon Valley Office201 Redwood Shores ParkwayRedwood Shores. CA 94065Telephone:

By:CHRISTOPHER. J.ROBERT G. SUGARMANGEOFFREY D. BERMANWBll.., GOTSHAL & MANGES LLP767 Fifth AvenueNew York, NY 10153

151650)

Attorneys for PlaintiffDVD COpy CONTROL ASSOCIATION, INC.

-4N...I;\I~"'-~I.~J71'.~

JF:f'.j- 22- 2004 15:03 BD-'~ 415 433 ~ P.19.111

1.

on (dste):on (date):

: I8. (1) l'~J WIU'I prejucice (2) GJ WlI1out prejudce

b. (1) Cj:J COmplaint (2) 0 Petili>n(3) [~~I Cross-compialnt filed by (name):(4) 1_,_1 Cro68-complaintfiled by (n8me):(5) L,.' J Entire action of all patties and all causes of a~n(6) [-" ] Other (Speclfy):-

Date: January 21, 2004Christocher J. Cox. Es'l. .

(T'I'PE OR PR8ft ~ a:- l:.xJA~ D PMTYwmiOur A11'OIfEV) Attorney or party witIOut attorney for: DVD CopyAssn. Inc.

[iJ Plaintiff/Pelitioner D Oefendant/Re&pondent0 Cross-complalnant

. If dielnl8s8l ~818d is of cpccWied paIb ~Iy. of lpedlled ~ of~n ally. « of 8ped11ed ~~ ~Iy. 10 ... end ~the pa.-os. ~SM of 8dXJn. or 0tas8.a...~-~ to b8 ~

2. TO THE CLERK~~8-8bove disnissalls hereby given...Date: ~

('\'YP! ~ ~HT NAME Of' L~ TTONtEY oPARTY WITHOUT ATT~

.. If . ~;1IIInt - or ~ (F.~1y Law) ~ .."...,.r~8f - Is 011 ... tie ~ far" ~ C~)mwt IigrI ~ ~ It ~r8d by CCId8 at a:vI PIOC8d... eec8on581(i) fXO)

Attorney or party without attorney for:

C-:J Plaintiff/Petitioner

CJ Cross-complainant

0 Defendant/Respondent

3. , . . JAN 2 1 2004

8.(/j 8. Attorney or party without attomey noOOed on (date):IAN . 1 '004b. Atklmey or party without attorney not rX>tified. FiUn~r>I~ IIII~ ~ ~id!..

r :J a copy to confOrn1 r~ means to ,..um conformed copy :~rOIrI .VI'" &ecutjve

JAM . 1 2004 Clerk. by Omcer/CJerkDate:

FCJ1T\ ~ by 1M~~~~~

9IaW)CS)~.~1. 18871..~ FOIm ~REQUEST FOR DISMISSAL

4. r ,- J Dismissal entered on (date): as to only (name):5. r' ".1 Dismissal not entered as requested for the following reasons (specify):