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Booloon v Google-Rehearing

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Booloon v Google-Rehearing Powered By Docstoc
					PETITION FOR REHEARING


To the Honorable Presiding Justice, and the Honorable Associate Justices of the

Court of Appeal of the State of California, Second Appellate District, Division

Three:


       Petitioners/appellants petition for a rehearing of the case before the court.

Gov. Code § 68081 requires a rehearing, on timely petition, when a court decides

the case on an issue not raised by the parties and for which the court did not

request supplemental briefing. In addition, the court of appeal may grant a

rehearing or may modify its decision on application of any party or on the court's

own motion. See Cal. Rules of Ct., Rules 8.268, 8.536; see Metropolitan Water

Dist. v. Adams, 19 Cal. 2d 463, 469(1942).


    I. GOV. CODE § 68081 REQUIRES A MANDATORY REHEARING AS

THE COURT DECIDED THE CASE BASED ON SEVERAL ISSUES NOT

RAISED BY THE PARTIES AND FOR WHICH THE COURT DID NOT

REQUEST SUPPLEMENTAL BRIEFING

       Gov. Code § 68081 requires a rehearing, on timely petition, when a court

decides the case on an issue not raised by the parties and for which the court did

not request supplemental briefing .



1
    A. “Element of damages” Regarding Actual and Constructive Fraud

       Causes Of Action Is An Issue Not Raised By The Parties

    The court stated:


             Defendants met their burden of showing that plaintiffs

             cannot establish the element of damages. With sworn

             declarations, plaintiffs established that Mote never

             disclosed the so-called "confidential information" he

             obtained from plaintiffs to the employees of Google who

             created and developed its search engine and that Google

             independently developed local business search and

             people search features. This is a prima facie showing that

             defendants are entitled to judgment because defendants'

             allegedly fraudulent conduct did not cause plaintiff to

             incur damages.


             [Court’s Decision Page 9]


       The “element of damages” is a new issue injected by the court that is not

    argued by either side. Assuming “plaintiffs” in “plaintiffs established that Mote

    ….” is a typo, and the correct word should be “defendants”, the statement

    regarding how defendants established “a prima facie showing that defendants

2
    are entitled to judgment” is still very confusing. The court failed to provide an

    actual analysis regarding what were the issues considered related to this

    element. As stated below (citation), this line of theory is highly problematic.

       In addition, the element of disclosure as an element replacing the element

    access is not raised by the parties and the court did not request supplemental

    briefing. It seems that the court did consider this element as an issue essential

    to the decision.


       As the issues of the “element of damages” (or cause of damages) and the

    element of “disclosure” are not raised by the parties and the court did not

    request supplemental briefing, rehearing is mandatory based on Gov. Code §

    68081.


    B. This Court Seemed To Attempt to Provide Different Standard of

       Burden Of Production and Burden of Persuasion By Introducing The

       Element Of Damages (or Cause Of Damages)

    By introducing the element of damages (or cause of damages), the court seemed

to attempt to shifted the sequence of burden of proof, and it seems that the court is

attempt to provide different standard of burden of production and burden of

persuasion on various essential elements.



3
    In its statement, supra at 2, the court seems to have conducted an analysis under

Gutierrez, and concluded that defendants have “established facts which justify a

judgment in movant’s favor” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925,

931-932 ) with the element of damages. Then, “the final step is to determine

whether the opposition demonstrates the existence of a triable, material factual

issue.” (Gutierrez at 931-932.) Then, the court framed various issues in plaintiffs’

opposition, skipping the step where defendants need to prove that “summary

judgment motion prima facie justifies a judgment” (Gutierrez at 931-932.)


    This is an approach new for both sides. It seems that the court had relief the

defendants’ prima facie burden of all essential elements, while imposing on

plaintiffs higher burden of proof (and possibly burden of persuasion).


    Since this issue is not raised by the parties and the court did not request

supplemental briefing, rehearing is mandatory based on Gov. Code § 68081.


    C. All Analysis Regarding Plaintiffs’ “Rebuttal” On Each Element

       Mentioned By The Court Are Not Briefed

    As stated above, supra at 3-4, the court seemed to have imposed on plaintiffs

higher burden of proof (and possibly burden of persuasion). Therefore, under

court’s analysis, the requirement for defendants’ burden of persuasion regarding

plaintiffs’ burden of proof on all related elements seemed to be different from what

4
were argued by the parties. Since this issue is not raised by the parties and the

court did not request supplemental briefing, rehearing is mandatory based on Gov.

Code § 68081.


     D. Issues Regarding Defendants’ Objections to Plaintiffs’ Declaration Are

         Not Briefed

    The issues regarding defendants’ objections to plaintiffs’ evidence [Court’s

decision at 10] are not raised on appeal the court did not request supplemental

briefing. Since this issue is not raised by the parties and the court did not request

supplemental briefing, rehearing is mandatory based on Gov. Code § 68081.


     E. Issues of Insufficient Evidence on the “Type of Categorization” and that

         “Description of Confidential Information was Vague” Are Not Briefed

         Issues of insufficient evidence on the “type of categorization” and that

“description of confidential information was vague” are also new issues raised by

the court. [Court’s decision at 10-11]


         These are issues not raised by the parties and for which the court did not

request supplemental briefing . Therefore, rehearing is mandatory based on Gov.

Code § 68081.




5
    II.   THE COURT MISSTATED AND OMITTED ISSUES AND

          THERE ARE MISTAKES OF LAWS IN ITS OPINION

    An omission or misstatement in the court of appeal opinion of an issue or a

material fact may be a ground for rehearing in the court of appeal. In fact, a

rehearing must be sought on this ground before it may be raised as a ground for

review in the Supreme Court, pursuant to Cal. Rules of Court, Rule 8.500(c)(2).

This ground includes: an opinion that misstates a material fact or issue, an opinion

based on a mistake of law, or an opinion that contains defective directions to the

lower court.


    Accordingly, Petitioners/Appellants petition for rehearing regarding the

following misstatements and/or omissions of issue and misstatements of law:


    A.     The Opinion Provided By The Court Lacks Detailed Analysis and

           Clear Statement of Issues And Should Constitute Misstatement Of

           Issues and Omission of Issues and Mistake of Laws If Petitioners

           Failed To Identify Them As The Results

    There seemed to be a few issues that are essential to court’s decision.

However, due to lack of detailed analysis in court’s opinion, issues that are

essential to this decision are not clear. Accordingly, Petitioners/Appellants should



6
not be bound for failing to identify the misstated or omitted issues and mistake of

law that could be essential to the decision.


    For example, there is no analysis regarding the “element of damages”. [Court’s

decision at 9] The court failed to provide the essential issues related to this

element, and what evidences were considered and what steps was taken to reach

the conclusion. A long winding sentence “[w]ith sworn declarations, plaintiffs

established that Mote never disclosed the so-called "confidential information" he

obtained from plaintiffs to the employees of Google who created and developed its

search engine and that Google independently developed local business search and

people search feature” [Court’s decision at 9] is the only explanation offered for

the decision that defendants satisfied the “prima facie showing that defendants are

entitled to judgment”. And then, the entire case is basically based on the decision

regarding this matter.


    Assuming “plaintiffs” in “plaintiffs established that Mote ….” is a typo, and the

correct word should be “defendants”, to interpret this sentence, the court seems to

indicate that the conclusion of lack of cause of damages is based on sworn

declaration by defendants only, and the issues that are essential to the conclusion

are “Mote’s no-disclosure of ‘confidential information’”, and “Google’s

independent development of local business search and people search feature”.


7
    Accordingly, all matters related to misstatement or omission of issues, mistake

of law, misstatement or omission of materials facts are based on this assumption,

and any omission or mistakes made by petitioners should be viewed under the

consideration of the Court’s defective opinions.


    B.       The Court Misstated and Omitted Issues, and Were Mistake in Law

             in The Decision That Defendants have Made A Prima Facie

             Showing That Defendants Are Entitled To Judgment

         Before the burden of producing even a prima facie case should be shifted to

    the plaintiff in advance of trial, a defendant who cannot negate an element of

    the plaintiff's case should be required to produce direct or circumstantial

    evidence that the plaintiff not only does not have but cannot reasonably expect

    to obtain a prima facie case. See Hagen v. Hickenbottom (1995, Cal App 6th

    Dist) 41 Cal App 4th 168. [DD 4]


    1. The Statement Regarding The Element of Damages

         Regarding the statement of “[d]efendants met their burden of showing that

    plaintiffs cannot establish the element of damages” [Court’s decision at 9],

    there are several problems:


    a.      The element of damages is misstated



8
         The plain interpretation of this language is that the court seems to suggest

    that plaintiffs cannot prove damages. But plaintiffs’ theory of recovery is not

    based on damages, but restitution, i.e., benefit obtained by the defendants. [AA

    24-27] There is no indication in the court’s decision to indicate the actual prove

    of “damages” or “benefit” is the issue here.


    b.      The element of causation is misstated

         If the element the court is actually referring to could be causation, meaning

    that if there are fraudulent behaviors (presumably that if defendant Mote intent

    to defraud plaintiffs and actually defrauded plaintiffs), they did not cause any

    damages, then again, because damages is not an element in the theory of

    recovery, causation related to damages should not be an issue as well.


    c.       The element of use is misstated

         If petitioners were to identify the element that responding to this case, the

    element might be “use”, meaning if defendant Google did not “use” the

    “confidential information”, then the issue or element of wrongful act, or benefit

    could be questioned.


    2. The Statement Regarding Sworn Declarations

         Regarding the statement of “[w]ith sworn declarations, plaintiffs established

    that Mote never disclosed the so-called ‘confidential information’ he obtained

9
     from plaintiffs to the employees of Google who created and developed its

     search engine and that Google independently developed local business search

     and people search feature ” [Court’s decision at 9], there are several problems:


     a.      The element of similarity and access are omitted in the statement

          As stated above, the element the court seems to be discussing about is “use”.

     The question of “use” is essentially identified in idea submission case, and can

     be analogy to the question of copying as in Copyright infringement action. See

     Teich v. General Mills, Inc., 170 Cal. App.2d 791; See also For element of

     use, the essential issues are “similarity” and “access”. See Teich v. General

     Mills, Inc., 170 Cal. App.2d 791; See also Hollywood Screentest of America,

     Inc. v. NBC Universal, Inc., 151 Cal.App.4th 631 (2007). Thus the element of

     similarity and access are omitted in the statement.


     b.      The element of substantial similarity is omitted

          Substantial similarity is sufficient to establish the element of copying (use),

     especially in summary judgment stage. See Baxter v. MCA, Inc., 812 F.2d 421,

     423 & n.2 (9th Cir. 1987) ("Absent evidence of access, a striking similarity'

     between the works may give rise to a permissible inference of copying.") Since

     decision did not mention substantial similarity, this is an issue omitted here.


     c.      The element of access might have been misstated or omitted
10
          The long winding sentence of the statement of the court did not clearly

     indicate which issues court considered in making the decision. It is possible

     that the court considered the issue of access and/or replaced it with the issue of

     disclosure. Then, this is an issue misstated or omitted here.


     d.       Disclosure is a misstated issue, and there are varies problems of

              mistake of law related to this issue

          Disclosure is not an element for determining use, supra at 10. If considering

     lack of disclosure by Mote as an element related to lack of access, is might be

     irrelevant in the view that access to the employee is an access to the

     corporation. See Nimmer on Copyright § 13.02 [A] Even if non-disclosure by

     Mote to Google is relevant to the issue of access, the access issue is not

     equivalent to the issue of disclosure by Mote to Google. Therefore, this is a

     misstated issue, and there are varies problems of mistake of law related to this

     issue.


     e.       The element of “confidential information” is omitted

          As there is a discussion related to “confidential information” in statement

     regarding plaintiffs’ burden of proof, [Court’s Decision at 10] the issue should

     have been discussed in deciding defendants’ prima facie showing, so the issue

     of “confidential information” is omitted here.

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     f.      The could be several problems of mistake of law related to

             independent creation

          From the opinion, it seems that the Court considered independent creation as

     an issued essential to the decision. Independent creation is affirmative defense

     that is available in copyright law cases. See Nimmer on Copyright § 12.10 [B] [2]

     [a] If the court rejects the standard for use based on copyright law, then whether

     independent creation could be an affirmative defense is also questionable.

     Assuming this defense is available, the prevailing view is that this defense is

     not available for summary judgment stage. See Nimmer on Copyright § 12.10 [B]

     [2] [a] Even in rare case it is permitted, evidence must be disinterested party

     and with documentary evidence, which is clearly not the case here. See

     Hollywood Screentest of America, Inc. v. NBC Universal, Inc., 151 Cal.App.4th

     631 (2007). Even under general summary judgment standard, evidence must

     be specific fact. See, ex., Kramer v. Barnes (1963, Cal App 1st Dist) 212 Cal

     App 2d 440. As there is no analysis related to this issue, there are potentially

     several problems of mistake of law.


     3. There Various Mistake of Law In Reviewing Evidence For Court To

          Decide Defendants Met Their Burden Of Production And Their Burden

          Of Persuasion In Prima Facie Showing That They Are Entitled To

          Judgment
12
      a. Defendants did not meet their burden of production to satisfy their

          burden of persuasion that plaintiffs cannot prove their prima facie

          case

      In absence of sufficient counteraffidavits, court is required to grant motion

for summary judgment where affidavit or affidavits of moving party satisfy three

requirements: they must contain facts sufficient to entitle moving party to

judgment, that is, facts establishing every element necessary to sustain judgment in

his favor; such facts must be set forth with particularity, that is, all the requisite

evidentiary facts must be stated, and not ultimate facts or conclusions of law; and

affiant must show that if sworn as witness he can testify competently to evidentiary

facts contained in his affidavit. See Kramer v. Barnes (1963, Cal App 1st Dist) 212

Cal App 2d 440; see also Goldstein v. Hoff-man (1963, Cal App 1st Dist) 213 Cal

App 2d 803.


      In view of fact that affidavits of party moving for summary judgment must

contain facts sufficient to entitle that party to judgment in action, to prevail, his

affidavits must state facts establishing every element necessary to sustain

judgment in his favor. Johnson v. Banducci (1963, Cal App 5th Dist) 212 Cal

App 2d 254. If moving party is to prevail on his motion for summary judgment,

his affidavit must furnish factual support covering every element required to
13
establish his cause of action or defense, even though opposing party presents no

countershowing or insufficient one. Johnson v. Drew (1963, Cal App 2d Dist) 218

Cal App 2d 614. Requirements that affidavit in support of motion for summary

judgment must state sufficient facts with particularity to support favorable

judgment and that affiant must show he can competently testify to evidentiary facts

stated are applicable though no counteraffidavit is filed, as well as when

counteraffidavit is insufficient. Saporta v. Barbagelata (1963, Cal App 1st Dist)

220 Cal App 2d 463.


      To satisfy the statutory requirements as to the sufficiency of affidavits in

support of a motion for summary judgment pursuant to CCP § 437c, the movant's

affidavits must state all the requisite evidentiary facts and not merely the ultimate

facts. Moreover, neither conclusions of law nor conclusions of fact are sufficient to

satisfy the statutory re-quirements. The defendant's supporting affidavits are

responsive in nature and must necessarily be addressed to the issues raised by

the complaint. See Wiler v. Firestone Tire & Rubber Co. (1979, Cal App 3d Dist)

95 Cal App 3d 621; See American Soc. of Composers, Authors & Publishers v.

Superior Court of Los Angeles County (1962, Cal App 2d Dist) 207 Cal App 2d

676; see also Pacific Architects Collaborative v. State of California (1979, Cal

App 3d Dist) 100 Cal App 3d 110; House v. Lala (1960, Cal App 2d Dist) 180 Cal



14
App 2d 412; see also Coleman v. Fitzgerald (1967, Cal App 1st Dist) 252 Cal App

2d 58.


Therefore, the court’s decision constitute mistake of law for several reasons:


            i)     Element of damages


         From the outset, since there is no “damages” alleged in plaintiffs’ First

Amended Complaint, any evidence to prove the element of “damages”, or the

element of “causation of damages” is irrelevant since it did not address “the issues

raised by the complaint”. See Wiler, supra.


            ii)    Element of causation of damages


         Assuming the court was simply mistaken about the element of “damages”,

or the element of “causation of damages” , and assuming the intent of the court is

to address the issue of use, the evidence provided by the defendants still failed to

prove “the issues raised by the complaint”. See Wiler, supra.


            iii)   Element of Use


         In establishing use, the elements of similarity and access are general

considered concurrent, and substantial similarity could be sufficient to establish the

element of copying (use), especially in summary judgment stage, see supra at 10,

lack of consideration on the evidence supporting similarity is a mistake of law.

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          iv)   Element of Access


      In considering access as the element related to the issue of use, the Court did

not seem to have reviewed the evidence as it is related to the element of access and

did not seem to have reviewed the evidence concurrently with the evidence related

to the element of similarity. In considering evidence related to access, plaintiffs’

evidence that Mote admitted that he could be giving advice to any groups including

search engine [DD 16-18] should be consider. This evidence definitively negated

any possibility for defendants to prove that it is not possible for Mote to have

access to employees in Google that could be using the information. Therefore, the

decision is based on mistake of law.


          v)    Element of Disclosure


      It seems that this is an element that court did considered. But disclosure is

not an element for determining use. Disclosure is related to access. At stated

above, lack of disclosure by Mote to Google is still irrelevant as to access to the

employee is an access to the corporation. Even if this view is rejected by the court,

to meet defendants’ prima facie showing, defendants need to show that defendant

Mote could not have access to Google employees that could be using the

confidential information, not that he did not have access. Therefore, the proof of

“never disclosed” is not the proof of “could not have access”, thus the court’s


16
decision is based on mistake of law. In addition, the defendants did not actually

prove that defendant Mote “never disclosed” the “confidential information”

because the offer to prove lacks particularity. For example, no declaration stated

clearly what is “confidential information”, therefore, prove that defendant Mote

“never disclosed” the “confidential information” is impossible.


          vi)      Objections to Declaration are only Related to Admissibility, not

                   Sufficiency of Proof


      Although plaintiffs did not object declarations as evidence regarding any

issues, what the declarations as evidence can established can still be challenged.

The court’s decision seems to suggest that these affidavits are sufficient regarding

the issues of “disclosure”, thus is directly in contradiction to the established law.

See, ex. Kramer, supra at 13.


      b. Defendants did not meet their burden of production and their

          burden of persuasion in prima facie showing of affirmative defense

          of “independent creation”

                i) Hollywood Screentest Standard


                Under Hollywood Screentest of America, Inc. v. NBC Universal, Inc.,

                151 Cal.App.4th 631 (2007), evidence must be disinterested party

                and with documentary evidence, which is clearly not the case here.

17
     ii) General Summary Judgment Standard


     General summary judgment standard, defendants’ declarations must

     meet the requirement of “particularity”. Although plaintiffs did not

     object declarations as evidence regarding the issues of “independent

     creation” (and other issues), what the declarations as evidence can

     established can still be challenged. The court’s decision seems to

     suggest that these affidavits are sufficient regarding the issues of

     “independent creation”, thus is directly in contradiction to the

     established law.


     Summary judgment procedure being drastic, movant's affidavit must

     be strictly construed, and to meet requirement of "particularity," it

     should allege evidentiary and not ultimate facts. Southern Pacific Co.

     v. Fish (1958, Cal App 2d Dist) 166 Cal App 2d 353; See also

     Martens v. Winder (1961, Cal App 1st Dist) 191 Cal App 2d 143; see

     Koret of California, Inc. v. San Francisco (1969, Cal App 1st Dist) 2

     Cal App 3d 87; Callahan v. Chatsworth Park, Inc. (1962, Cal App 2d

     Dist) 204 Cal App 2d 597; see also Rodes v. Shannon (1961, Cal App

     2d Dist) 194 Cal App 2d 743. The word "particularity" in a pleading

     or affidavit means the detailed statement of particulars. In applying

     the requirement of CCP § 437c, that facts be set forth with
18
     particularity in affidavits in support of or in opposition to motions for

     summary judgment, the test is generally whether the affidavit states

     evidentiary facts on the one hand or ultimate facts or conclusions on

     the other; the affidavits should contain evidentiary facts stated

     precisely, specifically and definitely; and legal conclusions are

     especially objectionable when they are contained in the moving

     party's affidavits. Jack v. Wood (1968, Cal App 4th Dist) 258 Cal App

     2d 639.


     In determining a motion for summary judgment the evidence

     contained in the plaintiff's affidavit, although not objected to, could

     not be considered, and therefore, the affidavit did not state facts

     sufficient to sustain a summary judgment, where it stated no

     evidentiary facts but only ultimate facts, conclusions of law, and

     argumentative matter. See Nelson v. United States Fire Ins. Co.

     (1968, Cal App 1st Dist) 259 Cal App 2d 248.


     The defendant should at least present an affidavit by some one having

     personal knowledge. See Gardenswartz v. Equitable Life Assurance

     Soc. (1937, Cal App Dep't Super Ct) 23 Cal App 2d Supp 745.

     Affidavit or declaration that is based on hearsay or conclusions and

     that contains no competent averments made by one having personal
19
           knowledge of facts is of no value in determining whether there is

           triable issue of fact. See Donnachie v. East Bay Regional Park Dist.

           (1963, Cal App 1st Dist) 217 Cal App 2d 172.

           Moving affidavits in support of summary judgment dismissing action

           as to defendant employer are insufficient where affidavits are

           comprised of ambiguous statements, conclusions, ultimate facts,

           inconsistent averments and valueless items of information, and are

           barren of evidentiary facts from which conclusion may be drawn that

           defendant employee was not acting within scope of his employment at

           time alleged liability was incurred. See Johnson v. Banducci (1963,

           Cal App 5th Dist) 212 Cal App 2d 254.


     c. There Should Not Be Shift of Burden of Persuasion

       For any element that plaintiffs required to prove, defendants must

     establish their prima facie showing in summary judgment. Defendants are

     not entitled to judgment even if plaintiffs could not meet the burden of

     production showing that are triable issue of fact, unless defendants

     established their prima facie showing in summary judgment. See, ex.,

     Saporta v. Barbagelata (1963, Cal App 1st Dist) 220 Cal App 2d 463. This

     seems to be an issue omitted by the court.


20
     C.       The Court Misstated and Omitted Issues, and Were Mistake in law

              in The Decision That plaintiffs did not meet the burden of

              production Showing That are triable issue of fact

     1. No Shift of Burden of Persuasion

          If the Court intended to shift the burden of persuasion, it would be

     misstatement of issue and mistake of law. The burden shifted to plaintiffs is

     the burden of production for proving prima facie case, not the burden of

     persuasion.

          In general, not all evidence provided by plaintiffs needs to be admissible

     evidence, as the burden of persuasion is rested on moving parties (defendants)

     throughout the proceeding.


          The summary judgment is proper only if the affidavits in support of the

     moving party would be sufficient to sustain a judgment in his or her favor and

     the opponent does not by affidavit show such facts as may be deemed by the

     judge hearing the motion sufficient to present a triable issue. Any doubts as to

     the propriety of granting the motion must be resolved in favor of the party

     opposing the motion. See Violette v. Shoup (1993, Cal App 1st Dist) 16 Cal

     App 4th 611.” [DD03]




21
        On a motion for summary judgment, the affidavits of the moving party are

     strictly construed, while those of the party opposing the motion are liberally

     construed. If the affidavits of the party opposing the motion contain factual

     averments within the general area of the issues framed by the pleadings, they

     are sufficient to make out a prima facie case. See Violette v. Shoup (1993, Cal

     App 1st Dist) 16 Cal App 4th 611.


        Purpose of motion for summary judgment is accomplished through

     presentation of proposed evidence by affidavits which are to be liberally

     construed in favor of party resisting motion to end that he will not be summarily

     deprived of full hearing available at trial of action and rights incident thereto,

     but must be directed to issues raised by pleadings. See Craig v. Earl (1961, Cal

     App 4th Dist) 194 Cal App 2d 652. [DD03]


        The facts alleged in affidavits of the party against whom a motion for

     summary judgment is made (CCP § 437c) must be accepted as true, and to be

     sufficient such affidavits need not be composed wholly of strictly evidentiary

     facts. See Avey v. County of Santa Clara (1968, Cal App 1st Dist) 257 Cal App

     2d 708.


        Provision that when the party who resists motion for summary judgment

     appears in one of specified representative capacities, his opposing affidavit may


22
     be made on information and belief, is exception to general rule that allegations

     made on information and belief are valueless and not competent testimony. See

     Miller & Lux, Inc. v. Bank of America (1963, Cal App 5th Dist) 212 Cal App 2d

     719.


     2. Misstatement of Issue of Disclosure

     In the statement regarding requiring admissible evidence by plaintiffs, [Court’s

Decision at 9] the court identified disclosure, not access. As stated above, this is a

misstatement of issue.


     3. Misstatement of Issue of Use

        The court chose “in fact used” as issue to be considered. This is a

misstatement of issue. There is no such element in existing authorities. Again, the

proof of use is by proving similarity and access, and substantial similarity may be

sufficient to prove use.


     4. Omission of Issue of Similarity

Again, the court omitted the element of similarity, particularly substantial

similarity.


     5. Issues Regarding Plaintiffs’ Production

     a. Use of the “Confidential information”

23
     i)      The declaration established use

          The language in Zhang’s declaration regarding use of “confidential

     information” is sufficient to establish the element of use. This language can be

     interpreted as the proof of use by substantial similarity, and it should be

     interpreted as such. Even if the language includes any conclusion of fact or

     law, it is still sufficient to establish the prima facie case.


          The affidavits of a party moving for summary judgment should set forth

     evidentiary and not ultimate facts; however, the party resisting the motion may

     state ultimate facts and, at least to some extent, conclusions. See Dreyfuss v.

     Burton (1966, Cal App 2d Dist) 246 Cal App 2d 629. Counteraffidavits may

     state ultimate facts and conclusions of law and need not be composed wholly of

     evidentiary facts. See Whaley v. Fowler (1957, Cal App 1st Dist) 152 Cal App

     2d 379. Because of drastic nature of summary judgments, party resisting

     motion may state ultimate facts and, to some ex-tent at least, conclusions in his

     affidavits. See Scheble v. Nell (1962, Cal App 1st Dist) 200 Cal App 2d 435.


          Affidavits filed opposing motion for summary judgment need only disclose

     evidence supporting possible defense or cause of action and need not prove it;

     better rule is that facts alleged in affidavits of the party opposing motion must

     be accepted as true, and that those affidavits, to be sufficient, need not


24
     necessarily be composed wholly of strictly evidentiary facts. See Johnson v.

     Drew (1963, Cal App 2d Dist) 218 Cal App 2d 614; see also Zancaner v.

     Louisville & N. R. Co. (1963, Cal App 3d Dist) 220 Cal App 2d 836.

     ii)   Disclosure of “Confidential Information” to Google


     As stated above, plaintiffs do not need to prove that Mote disclosed

“confidential information” to Google. The essential element for recovery is use,

and use is proved in combination of similarity and access (when proof of

substantial similarity is not enough). Thus even if the court requires the proof of

use through proof of similarity and access, access is never element need to be

proved separately. Supra, ex, at 10. As plaintiffs established similarity by

declaration (paragraph 9) and document [Exhibit B], [DD16-25] the proof of

access is established by access to Mote (and that Mote could have access to

employees of Google that could be “using” the information), and that defendant

Google’s patents (or patent applications) did not disclose this type of information.

[DD16-25]


The affidavits of a party moving for summary judgment should set forth

evidentiary and not ultimate facts; however, the party resisting the motion may

state ultimate facts and, at least to some extent, conclusions. See Dreyfuss v.

Burton (1966, Cal App 2d Dist) 246 Cal App 2d 629.


25
Affidavits filed in opposition to a motion for summary judgment, and relating to

the interpretation of a written easement agreement, were not insufficient on the

ground that the affiants admitted they could not recall the exact words spoken

during negotiations leading up to the agreement, where the matters stated in the

affidavits were unquestionably within their personal knowledge. Their inability to

recall the exact words of the discussion went only to the weight, not the

admissibility, of their evidence. Buehler v. Oregon-Washington Plywood Corp.

(1976) 17 Cal 3d 520.


     The court should not require plaintiffs to prove that Mote disclose “confidential

information” to Google, because disclosure is not an element regarding use, thus

not related to theory of recovery.


     Assuming the requirement is misstated, and the requirement is access, then

issue goes back that defendants would need to first make their prima facie showing

that this element cannot be proved, then the plaintiffs would be required to make

their showing. Defendants cannot evade their burden over this element simply

because the court injected the “element of damages” or “causation of damages”.


     b. Defendants waived objections by failing to cross appeal the issue and

        failing to obtain a ruling on that objection for the record




26
     If a party makes an evidentiary objection at trial, but fails to obtain a ruling on

that objection for the record, on appeal the party is deemed to have waived any

claim of error on this ground. See Dodge, Warren & Peters Insurance Services,

Inc. v. Riley (2003) 105 Cal. App. 4th 1414, 1421,; Rosenbluth International, Inc.

v. Superior Court (2002) 101 Cal. App. 4th 1073, 1076, n.2, 124 Cal. Rptr. 2d 844

(evidentiary objections to declaration waived because party did not obtain rulings

on them).


     D.       Issues of insufficient evidence on the “type of categorization” and

              that “description of confidential information was vague” Should

              Have No Effect On The Outcome

     1. The Appellate courts should not consider the issues of insufficient

          evidence on the “type of categorization” and that “description of

          confidential information was vague”

          This Court should not consider the issues of insufficient evidence on the

     “type of categorization” and that “description of confidential information was

     vague”. These issued are not raised by the parties on appeal nor on trial court

     stage.


          Appellate courts generally will not consider new issues or theories of law

     that a party raises for the first time on appeal, particularly a new theory of


27
     recovery or relief. See Johnson v. Greenelsh (2009) 47 Cal. 4th 598, 603, 100

     Cal. Rptr. 3d 622, 217 P.3d 1194 (court refuses to hear issue regarding no

     contest clause not raised in lower court);   Gavaldon v. DaimlerChrysler Corp.

     (2004) 32 Cal. 4th 1246, 1264(court refused to hear theory briefly argued

     during reply portion of closing argument at trial, but not discussed in

     pleadings); Western Oil & Gas Ass'n. v. Monterey Bay Unified Air Pollution

     Control Dist. (1989) 49 Cal. 3d 408, 427 n.20; Bogacki v. Board of

     Supervisors (1971) 5 Cal. 3d 771, 780; To do so would unfairly deprive the

     trial court and the opposing parties of their opportunity to decide the issue [see

     Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 847.

        This rule is stringently applied if a new theory depends on controverted

     factual questions that were not determined at trial in the context of that theory.

     See Bogacki v. Board of Supervisors (1971) 5 Cal. 3d 771, 780; Honig v. San

     Francisco Planning Department (2005) 127 Cal. App. 4th 520, 530 (rule applies

     especially to doctrine of estoppel, which includes factual elements that must be

     established in trial court). When a case is on appeal the parties are bound to the

     evidence produced in the trial court, and parties opposing or responding to the

     appeal cannot fairly be expected to disprove factual contentions that were not

     presented at trial. See Tiernan v. Trustees of Cal. State University & Col-leges



28
     (1982) 33 Cal. 3d 211, 221-222 n.15; Strasberg v. Od-yssey Group, Inc.

     (1996) 51 Cal. App. 4th 906, 920.


        The type of categorization was indicated in Google’s Patents and Patent

application, the list of which is provided by the plaintiffs. Had the issue been

raised in trial court, plaintiffs would have provided the information.


        It is obvious that defendant Google understand the type of categorization it

was using. Therefore, the fact that they did not raise this issue is because they

understand what plaintiffs were referring to.


        Defendants did not raise the issue that “confidential information” is vague as

well. As defendants did raise the same issue as reason for refusing to provide any

document to plaintiffs, defendants did not seem to make any innocent mistake

regarding this issue. [DD 00016-18]


        Had defendants raised this issue in summary judgment motion, plaintiffs

would have provided the “trade secret statement” in their opposition. In fact,

plaintiffs had already provided “trade secret statement” to the lower court and

defendants, and the hearing regarding “trade secret statement” was set after the

summary judgment hearing.


     2. The issue regarding insufficient evidence on the “type of categorization”

        is not essential regarding plaintiffs’ prima facie case
29
The element of use is established by similarity and access. Plaintiffs only need to

show that the “type of categorization” now used is similar to plaintiffs’

confidential information to establish the element of similarity. The “type of

categorization” that was used is most relevant as to the element of independent

creation, i.e., if defendants provided sufficient evidence to prove that the “type of

categorization” was the same before the disclosure of “confidential information” to

Mote, defendants could have established the element of independent creation.

Hence the burden is for defendants to show what was the “type of categorization”

that was used. Plaintiffs’ showing of what was used could rebut the claim of

independent creation, and plaintiffs did show it by pointing at relevant patents and

patent applications, and stated that the type of categorization is different. [DD16-

25]


     3. Issues regarding insufficient evidence on the “type of categorization”

        and that “description of confidential information was vague” need to be

        raised in defendants’ prima facie showing stage

        a. “Type of categorization”

        As stated above, the “type of categorization” that was used is most relevant

        as to the element of independent creation, defendants bear the burden of

        providing evidence regarding this issue, and defendants failed to do so. This

        is a definitive reason why the summary judgment reason should be denied.
30
        Had defendants made a sufficient showing that the type of categorization

        had been unchanged, plaintiffs would unlikely make any claim against

        defendants.


        b. Description of confidential information

        As defendants’ prima facie showing of lack of use is regarding the element

     of using the confidential information, any question regarding confidential

     information should be raised at this stage, but the defendants failed to do so.

     Any prima facie showing of lack of use would require definition of confidential

     information, lack of it is fatal for related issues. Therefore, this lack of clear

     definition of confidential information rendered defendants impossible to meet

     their burden of prima facie showing. Therefore, defendants cannot possibly

     obtain judgment, if the law is correctly applied.


     4. Issues regarding insufficient evidence on the “type of categorization”

        and that “description of confidential information was vague” should not

        have prevented plaintiffs to prove their prima facie case

        The different requirement regarding the standard of proof regarding relevant

     evidence provided that issues regarding insufficient evidence on the “type of

     categorization” and that “description of confidential information was vague”

     should not have prevented plaintiffs to prove their prima facie case. There is

31
     no requirement of particularity regarding evidential showing for opposing

     parties, thus plaintiffs are not prevented from proving their prima facie case.


Therefore, these issues should not have any negative effect on plaintiffs.


     E.       Adequate record re motion to leave to amend

          Appellate court's jurisdiction is not affected by lack of record. In re

     Gonsalves (1957) 48 Cal 2d 638. Therefore, even if there is any omission on

     appellants’ account, it does not affect this court’s ability to review trial court’s

     decision. [RB at 26]


     F. Record for motion to compel


          Appellants clearly stated what was sought for review. Appellants are

     seeking review to define the scope of discovery related to plaintiffs’ technology

     based on Cal Evid Code §1060, this is for an interpretation of the law that

     applies to all scopes of discovery, appellants provided sufficient evidence and

     records for this review. Specifically, appellants are seeking relief to restrict the

     scope of discovery to information related to “confidential information”, not

     “technology”. [RB at 33]


     III.    THE COURT MISSTATED THE FACTS IN ITS OPINION




32
     Accordingly, Petitioners/Appellants petition for rehearing regarding the

following misstatements and/or omissions of material facts and issue and

misstatements of law:


     A. MISSTATEMENT OF MOST RELEVANT MATERIAL FACTS:

1. The court stated:

     According to five undisputed declarations by Google employees, Google

     distinguishes between employees working on the advertising side of the

     business and those working on the search engine.

     Petitioners/Appellants’ contention:

     The declarations are disputed in several grounds for its various use. The use of

     word “undisputed” is not proper because it is confusing as to be what is

     disputed.

2. The court stated:

     Mote has worked at Google since 2006. He has spent his entire career at

Google working on the advertising side of the business, and has never worked on a

team involved with the search engine.


     Petitioners/Appellants’ contention:




33
     This statement is only supported by Mote’s declaration, and plaintiffs do not

accept it as true. Mote stated he could be giving advice to other groups, including

search engine group. [DD16-18]

3. The court stated:

     Indeed, a few months after the June 1, 2008, meeting, Zhang "started to see

     Google local business search and people search launched as general search

     features, and other changes in general searches."

     Petitioners/Appellants’ contention:

     This is evidence of suspicion of use, not as evidence of actual use. [DD16-25]

4. The court stated:

     Unfortunately, plaintiffs did not file a reporter's transcript, and thus the trial

     court's grounds for denying the motion are not in the appellate record.

     Petitioners/Appellants’ contention:

     The transcript is in the record. [SA 37-52]



5. Defendants' Motion for Summary Judgment

        a. The Court omitted to state that Mote’s statement regarding his job

           description is not supported by any other evidence.




34
        b. The Court omitted to state that all the affidavits were only regarding

             what happened in Google before June 1, 2008, no explanation regarding

             changes after June 1, 2008.

        c. The Court omitted to state the facts that nobody in the affidavits claimed

             to have created any features related to the allegation.

        d. The Court omitted to state the fact that nobody stated affirmative what is

             the confidential information



6. The Court omitted to cite any evidence provided by plaintiffs in its reciting of

     facts

7. The Court Omitted the evidence provided by plaintiffs that Google changed

     their website to delete information. [RA16-21]



8. The court stated:


     With sworn declaration, plaintiffs established that Mote never disclosed the so-

     called "confidential information" he obtained from plaintiffs to the employees

     of Google who created and developed its search engine and that Google

     independently developed local business search and people search features.

     Petitioners/Appellants’ contention:


35
     Plaintiffs never provided sworn declaration to” establish that Mote never

     disclosed the so-called “confidential information"”, or “Google independently

     developed local business search and people search features”.

10. The court stated :

     The only evidence plaintiffs cite is Zhang's August 11, 2011, declaration. In

     that declaration, Zhang stated in paragraph 9: "Defendant Google used the

     `confidential information' Plaintiffs disclosed to defendant Mote. In its website,

     Defendant Google used the type of categorization (categorizing feature terms

     according to subject terms) on search terms that plaintiffs used in the

     `confidential information' disclosed to Mote. See Exhibit B." Exhibit B, in turn,

     appears to be a print-out from a search conducted on "Google maps" on

     February 10, 2010, regarding Budget Truck Rental in Culver City.” [Court’s

     Decision at 10]

     Petitioners/Appellants’ contention:

       In disputing the statement :

       Mote did not disclose to anyone at Google anything communicated to him at

       he June 1, 2008 meeting until May 2010 when he was informed of Plaintiffs’

       threat to sue (and subsequent suit), and was forced to contemplate his

       response. Mote Decl., ¶ 10; see also Ex. V [Zhang’s May 5, 2010 letter to

       Google CEO/Chairman Schmidt].


36
      PLAINTIFFS PROVIDED:

      Defendant Google used the information Plaintiffs disclosed to Mote.

      Defendant Google used the type of categorization on search terms that

      plaintiffs used in the information disclosed to Mote. Defendant Google’s

      patents (or patent applications) did not disclose this type of categorization on

      search terms. Zhang Decl., ¶2, ¶ 6, ¶9, ¶10, ¶11, ¶12; Ex. B [A Copy of

      Google’s Webpage], Ex. C [A list of Google’s patents and patent

      applications, and list of Qin Zhang’s Patent Applications].

      [DD29-30]

     B. MISSTATEMENT OF OTHER POSSIBLE MATERIAL FACTS:

      1.    The Court stated:

      Qin Zhang, in pro. Per., for plaintiffs and Appellants.

      Petitioners/Appellants’ contention:

      Qin Zhang is not only pro se plaintiff/appellant, Qin Zhang is also attorney

      for plaintiff/appellant Booloon, Inc. [AB at 1], [RB at 1]

      2.     The court stated:

      Qin Zhang, an attorney, claims to have developed “technology in language

      processing that can be used in Internet search field.”

      Petitioners/Appellants’ contention:




37
     Plaintiffs provided declaration that Qin Zhang owns two patents on the

     related technology, which can be verified. The court should not simply treat

     it as a claim, not as an offer to prove. [DD 16-25]

     3.    The court stated:

     Kai He and Mote attended the same church and were acquaintances.

     Petitioners/Appellants’ contention:

     Plaintiffs are lack of direct knowledge regarding this matter at current time.

     At the time of the meeting, Kai He and defendant Mote told Qin Zhang that

     Kai He and Defendant Mote are good friends. [DD 16-28]

     4. The court stated:

     Mote agreed to attend the meeting with Zhang at Kai He's request.

     Petitioners/Appellants’ contention:

     Plaintiffs are lack of direct knowledge regarding this matter at current time.

     However, plaintiffs contend that Mote are motivated to obtain information

     from plaintiffs, based on calling Kai He as good friend then and stated that

     Kai He and Mote were acquaintances in his declaration. [DD 16-28], supra.

     5. The court stated:

     According to Mote, "[t]he Zhangs asked [him] for pointers so [he] referred

     them to some academic research that might address their problems."

     Petitioners/Appellants’ contention:


38
       Omission of the fact that Mote admitted plaintiffs disclosed information to

       him. [CC68-70]

     IV.      CONCLUSION

For the foregoing reasons, petitioners/ appellants respectfully requests that this

petition for rehearing be granted.




           Dated: June 11, 2012


Respectfully submitted,
Qin Zhang
Attorneys for Plaintiffs/Appellants
Booloon, Inc. and Qin Zhang




39

				
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