Yield Dynamics v. Tea Systems Corp.
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Filed 9/21/07 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT YIELD DYNAMICS, INC., Plaintiff and Appellant, v. H029604 (Santa Clara County Super. Ct. No. CV000690) ORDER MODIFYING OPINION AND DENYING REHEARING TEA SYSTEMS CORPORATION, et al., NO CHANGE IN JUDGMENT Defendants and Respondents. THE COURT: It is ordered that the opinion filed herein on August 23, 2007, be modified as follows: 1. On page 17, line 15, the word in is to be inserted between the words procedures and question so that the sentence reads: Similarly, Yield seizes upon the court s statement that the procedures in question did not perform any of the applications which make these programs commercially attractive. 2. On page 19, line 27, the word can is to be inserted between the words it and form so that the sentence reads: The factfinder is entitled to expect evidence from which it can form some solid sense of how useful the information is, e.g., how much time, money, or labor it would save, or at least that these savings would be more than trivial. 3. On page 27, line 15, the word he is changed to the so the sentence reads: The rationale for including the second category of code was obscure at best and opaque at worst, and the inclusion of the third category code that used the eight assertedly purloined routines was not self-evidently sound. 4. On page 31, lines 4, after the sentence ending time will be inferred add as footnote 19 the following footnote, which will require renumbering of all subsequent footnotes: 19 On petition for rehearing, Yield asserts that the asset purchase agreement did specify a time for delivery of the three files at issue. This assertion relies on contract language, elided from Yield s brief, which it contends required delivery of the files on the agreement s Effective Date, which was May 28, 1999, about a year and half before defendant delivered the files. What the cited provision actually states is effective as of the close of business on the Effective Date, Zavecz would sell, transfer, convey, assign and deliver . . . all of [his] right, title and interest in and to all [his] assets . . . which [he] was using or the use of which was necessary or related to . . . the operation of the Business . . . including but not limited to those listed below . . . . This is not a clear undertaking to deliver physical possession of a particular file or block of code. That the failure to do so was not viewed as an immediate breach may be inferred from the passage of a year and a half before defendant demanded delivery. Assuming he was obligated to deliver physical possession of particular property upon demand, he had a reasonable time within which to do so. 5. On page 32, line 20, the word to is inserted between the words obligated and assign so that the sentence reads: Yield argues that Zavecz breached the Inventions Agreement, under which he was obligated to assign to Yield any inventions made while he was employed by Yield. 6. On page 34, first line the numbers 11323 are changed to 1132 so the line reads: lacked the intention to perform their undertakings. (See id. at p. 1132 [ A declaration of There is no change in the judgment. Appellant s petition for rehearing is denied. Dated: I CONCUR: _________________________________ ELIA, J. ____________________________________ RUSHING, P.J.
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