Motion to Vacate Judgment of Dismissal

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RICHARD R. WIEBE (SBN 121156)
425 California Street, Suite 2025
San Francisco, CA 94104
Telephone:  (415) 433-3200
Facsimile:  (415) 433-6382

THOMAS E. MOORE III (SBN 115107)
TOMLINSON ZISKO MOROSOLI & MASER LLP
200 Page Mill Road, Second Floor
Palo Alto, CA 94306
Telephone:  (650) 325-8666
Facsimile:  (650) 324-1808

ARTHUR V. PLANK (SBN 072265)
ALLONN E. LEVY (SBN 187251)
HOPKINS & CARLEY LLC
70 S. First Street
San Jose, CA 95113
Telephone:      (408) 286-9800
Facsimile:        (408) 998-4790

CINDY A. COHN (SBN 145997)
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco CA 94110
Telephone:   (415) 436-9333
Facsimile:  (415) 436-9993

Attorneys for Defendant ANDREW BUNNER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

DVD COPY CONTROL ASSOCIATION, INC.,                         Plaintiff,             v.                                           ANDREW THOMAS MCLAUGHLIN; ANDREW BUNNER; et al.,                          Defendants.

Case No. CV - 786804 DATE:  May 11, 2004 TIME:   9:00 a.m. DEPT.:  2 HONORABLE WILLIAM J. ELFVING DEFENDANT ANDREW BUNNER\'S NOTICE OF MOTION AND MOTION TO VACATE PLANTIFF DVD COPY CONTROL ASSOC., INC.\'S VOLUNTARY DISMISSAL, AND MEMORANDUM IN SUPPORT THEREOF

NOTICE OF MOTION AND MOTION TO VACATE PLAINTIFF DVD COPY CONTROL ASSOCIATION, INC.\'S VOLUNTARY DISMISSAL OF THE ACTION

TO:  PLAINTIFF DVD COPY CONTROL ASSOCIATION, INC.:

PLEASE TAKE NOTICE that on May 11, 2004, at 9:00 a.m. or as soon thereafter as the parties may be heard, defendant Andrew Bunner will move the Court for an order vacating the voluntary dismissal without prejudice filed by plaintiff DVD Copy Control Association, Inc. and entered by the Clerk on the ground that said dismissal is void and is contrary to Code of Civil Procedure sections 437c and 581.  This motion is based on the accompanying memorandum of points and authorities and the grounds stated therein, on any additional evidence, argument, or papers that may be submitted hereafter or presented at the hearing, and on the complete discovery, files, and records in this action.

Dated:  February 18, 2004               Respectfully submitted,                 

	Richard R. Wiebe Attorney for Defendant Andrew Bunner

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

INTRODUCTION

Four years ago, at the insistence of plaintiff DVD Copy Control Association, Inc. defendant Andrew Bunner was preliminarily enjoined from republishing the widely available computer program "DeCSS."  The Court issued the preliminary injunction pending a final determination on the merits of DVD CCA\'s claim that Mr. Bunner\'s republication of DeCSS misappropriated DVD CCA\'s alleged trade secrets written inside each copy of the program "CSS."  Millions of copies of CSS and the alleged trade secrets written down within it have been distributed to the public by DVD CCA\'s licensees. 

Over two years ago, Mr. Bunner, at that point having already been silenced by the injunction for almost two years, filed his motion for summary judgment to vindicate with finality his right to free speech and to determine with finality the merits of DVD CCA\'s claim.  The evidence submitted in support of that motion demonstrates that the so-called "trade secrets" are publicly available throughout the world, and that there is no merit to DVD CCA\'s trade secret claim.  

Faced with the prospect of defeat, DVD CCA chose not to contest the merits of the summary judgment motion.  Instead, it persuaded this Court to stay the summary judgment motion, continuing the hearing of Mr. Bunner\'s motion until after the Supreme Court\'s decision of DVD CCA\'s appeal.  Most recently, just seven weeks ago it persuaded the Court to extend the stay further and to continue the hearing of Mr. Bunner\'s summary judgment motion until the Court of Appeal decides the appeal pending before it.  

Now, with an imminent ruling by the Court of Appeal looming, to be followed by the long-delayed hearing on Mr. Bunner\'s still-pending summary judgment motion, DVD CCA seeks to evade the inevitable by attempting to voluntarily dismiss without prejudice the trial court action and by moving to dismiss the appeal pending before the Court of Appeal.

DVD CCA\'s purported voluntary dismissal without prejudice is ineffectual and should be vacated.  California law prohibits a plaintiff from voluntarily dismissing an action without prejudice while a defendant\'s summary judgment motion is pending and has been continued at the plaintiff\'s request.  Thus, DVD CCA\'s purported dismissal of the action is ineffectual and should be vacated, the trial court action continues to exist, and the appeal is not moot. 

ARGUMENT

Pursuant to Code of Civil Procedure sections 473, 663, and 1008, defendant Andrew Bunner hereby respectfully moves the Court to vacate the voluntary dismissal of the action without prejudice filed by plaintiff DVD Copy Control Association, Inc. on January 21, 2004, and entered by the Clerk on the same day.  For the reasons explained below, the dismissal should be vacated because it is void and was erroneously entered.

I.               Procedural Background

Mr. Bunner filed his summary judgment motion in this action on November 28, 2001, seeking a final determination on the merits of DVD CCA\'s trade secret claim.  As this Court is aware, Mr. Bunner presented an extensive evidentiary record demonstrating beyond dispute that the purported CSS trade secrets are no secrets at all but the subject of widespread public distribution and republication throughout the world.  Accordingly, he is entitled to judgment in his favor in this action.

  Mr. Bunner\'s summary judgment motion was calendared by the Court for hearing on January 29, 2002, with DVD CCA\'s opposition due January 15, 2002.  On January 10, 2002, five days before its opposition was due, DVD CCA filed an ex parte application to stay the summary judgment proceedings; over Mr. Bunner\'s opposition, the Court vacated the previously-calendared hearing date.  After the Supreme Court granted review of DVD CCA\'s appeal, DVD CCA then filed a motion to stay the summary judgment proceedings until the Supreme Court\'s decision of the appeal, which this Court granted on June 19, 2002 over Mr. Bunner\'s opposition.  After the Supreme Court\'s decision of the appeal became final, DVD CCA moved for a further stay of Mr. Bunner\'s summary judgment motion until the Court of Appeal\'s decision of the remand, which this Court granted on December 17, 2003 over Mr. Bunner\'s opposition.

Now, on the brink of an imminent ruling by the Court of Appeal and subsequent summary judgment proceedings in this Court, DVD CCA wishes to deny Mr. Bunner a decision on the merits that would finally decide whether or not CSS is a trade secret or instead is publicly available information.  It has filed with the Clerk of this Court a purported voluntary dismissal of the action without prejudice. 

II.             DVD CCA\'s Purported Voluntary Dismissal Is Without Legal Effect And Should Be Vacated

DVD CCA\'s purported voluntary dismissal is void and without effect, for California law wisely prohibits litigants from playing fast and loose with the judicial system in this fashion.  Mr. Bunner is entitled to the clarity and the certainty of a decision on the merits of his summary judgment motion, and is likewise entitled to a decision on the merits of his appeal.

A plaintiff who seeks and obtains a postponement of the hearing of a defendant\'s pending summary judgment motion instead of filing a timely opposition cannot use the delay it has obtained as an opportunity to voluntarily dismiss the action without prejudice and thereby escape a decision on the merits.  Code of Civ. Pro. § 581, subds. (b)(1), (c); Cravens v. State Board of Equalization, 52 Cal.App.4th 253, 255 (1997) ("a plaintiff may not frustrate the summary judgment statute by interposing a voluntary dismissal without prejudice in lieu of opposition to a defendant\'s motion"); Mary Morgan v. Melzark, 49 Cal.App.4th 765, 769 (1996) (no right to voluntary dismissal without prejudice where summary judgment hearing continued at plaintiff\'s request); Miller v. Marina Mercy Hospital, 157 Cal.App.3d 765, 767 (1984) (no right to voluntary dismissal without prejudice after summary judgment motion filed).  A similar rule has been applied in other procedural context as well.  Groth Bros. Oldsmobile, Inc. v. Gallagher, 97 Cal.App.4th 60, 66 (2002) (demurrer pending before hearing; no right to voluntary dismissal without prejudice); Gray v. Superior Court, 52 Cal.App.4th 165, 167 (1997) (advisory proceedings before referee pending; no right to voluntary dismissal without prejudice); Hartbrodt v. Burke, 42 Cal.App.4th 168, 169 (1996) (motion to dismiss pending; no right to voluntary dismissal without prejudice: "a plaintiff cannot defeat a defendant\'s right to obtain a determination on the merits by simply filing a voluntary dismissal when statutory authority entitles the defense to a final judgment"). 

"The thread running through all these cases seems to be one of fairness . . . ."  Gray v. Superior Court, 52 Cal.App.4th at 173.  As these cases explain, although Code of Civil Procedure section 581 permits a voluntary dismissal without prejudice before the "commencement of trial" (Code Civ. Pro. § 581, subds. (b)(1), (c)), "limitations have evolved through the courts\' construction of the term ‘commencement of trial.\'  The meaning of the term ‘trial\' is not restricted to jury or court trials on the merits, but includes other procedures that effectively dispose of the case."  Mary Morgan v. Melzark, 49 Cal. App. 4th at 769 (citations and internal quotation marks omitted). 

In the context of summary judgment proceedings in particular, it is necessary to reconcile section 581 with the policies and procedures of the summary judgment statute, Code of Civil Procedure section 437c.  "Logic and fairness dictate that the right of a plaintiff to voluntarily dismiss an action before commencement of trial is restricted not only by statutory limitations and judicial constructions of the phrase ‘commencement of trial\'; it is also limited by the dismissal procedure\'s conjunction with other judicial procedures.  The interrelationship between various provisions of the Code of Civil Procedure must be considered when interpreting any one provision so that statutory harmony is achieved."  Mary Morgan v. Melzark, 49 Cal.App.4th at 771.

Accordingly, the court in Mary Morgan held, "[w]e will not eviscerate the summary judgment procedure by permitting a plaintiff to voluntarily dismiss his or her action after commencement of a summary judgment hearing and continuation for the express and exclusive purpose of permitting the plaintiff an opportunity to present opposition evidence.  The trial court correctly determined that appellant was not entitled to dismiss its action without prejudice and reassert the same allegations that it could not, or would not, defend when challenged by respondents\' summary judgment motions."  Mary Morgan v. Melzark, 49 Cal.App.4th at 771-72; accord, Cravens v. State Board of Equalization, 52 Cal.App.4th at 255 ("a plaintiff may not frustrate the summary judgment statute by interposing a voluntary dismissal without prejudice in lieu of opposition to a defendant\'s motion").

So, too, here.  Over two years ago, Mr. Bunner filed and calendared his motion for summary judgment and submitted to the Court an undisputed evidentiary record demonstrating his entitlement to judgment in his favor.  Rather than filing an opposition within the allotted time and allowing the motion to proceed to decision, DVD CCA sought and obtained repeated postponements of the hearing and decision of the motion.  It may not now take advantage of that self-created two-year delay to voluntarily dismiss the action.

Moreover, courts have been guided by strong considerations of fairness and judicial policy in interpreting the voluntary dismissal statute.  The court in Groth Brothers well articulated how permitting unrestricted voluntarily dismissals after a dispositive motion has been presented for decision would seriously harm the judicial system:   "If [a plaintiff] could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation.  An important additional interest has also been identified.  . . . [T]he injustice to the defendant is not the greatest evil of such a practice; the wasting of the time and money of the people in a fruitless proceeding in the courts is something far more serious.  [¶]  . . .  The obvious consequence of such a statutory construction would be to prolong, rather than to terminate, lawsuits.  It would not serve the orderly and timely disposition of civil litigation.  No good reason appears why encouragement should be given to such tactics, the effect of which is to expose defendants to duplicative annoying and continuous litigation, to burden our trial court with fruitless proceedings, and to delay the ultimate resolution of the validity of the plaintiff\'s pleading."  Groth Bros. Oldsmobile, Inc. v. Gallagher, 97 Cal.App.4th at 67-68 (citations and internal quotation marks omitted).

These fundamental considerations of fairness and justice additionally support the conclusion that DVD CCA\'s purported dismissal is contrary to the purpose of the voluntary dismissal statute.  DVD CCA repeatedly stated to this Court, in January 2001, June 2001, and in December 2003, that its sole purpose in seeking a stay was to improve the quality of the Court\'s decision on the merits of Mr. Bunner\'s summary judgment motion:  "The Supreme Court\'s anticipated analysis of the important issues of California public policy at stake in this case clearly would inform this Court\'s consideration of the arguments that Mr. Bunner now advances in his Summary Judgment Motion."  5/3/02 DVD CCA Memo. In Support Of Its Motion To Stay at 6:11-13; see also 1/11/02 DVD CCA Ex Parte Application at 5:11-14 (same); 11/12/03 DVD CCA Memo. In Support Of Motion To Stay at 3:9‑12 ("The rationale behind the stay was that, because Bunner\'s appeal involves issues at the heart of the Summary Judgment Motion, this Court should wait to see how the Court of Appeal and the Supreme Court decide the matter before ruling on these issues itself.").  It told the same thing to the Court of Appeal in the writ proceedings in which Mr. Bunner sought to have the stay lifted.  7/29/02 DVD CCA Opp. To Petition For Writ Of Mandate at 3 (Ct. App. No. H024755).  

In initially seeking a stay, DVD CCA assured this Court and Mr. Bunner that Mr. "Bunner is in no way prejudiced by waiting until after the California Supreme Court has ruled to bring his motion."  5/3/02 DVD CCA Memo. In Support Of Motion To Stay at 3:5-6.  In obtaining an extension of the stay in December 2003, it again assured this Court that "Bunner\'s cries of urgency are all the less persuasive given that, under the expedited briefing schedule on remand, the matter will be fully briefed before the Court of Appeal in less than six weeks."  11/12/03 DVD CCA Memo. In Support Of Motion To Stay at 4:1-3.  And most recently, it told the Court of Appeal in December 2003 that the Court of Appeal should "allow the case to be adjudicated before the superior court" (12/22/03 DVD CCA Supp. Reply Br. at 4) and should "reject Bunner\'s suggestion that ‘DVD CCA has used the existence of this preliminary injunction appeal as an excuse for postponing for years the final resolution by the trial court of the merits of its claim\' " (id. at 3).

All of these lulling assurances by DVD CCA that Mr. Bunner would someday receive a decision on the merits of his summary judgment motion have now proved false.  DVD CCA has maintained a preliminary injunction against Mr. Bunner that for at least two years (since the filing of the summary judgment evidence) it has known cannot be justified under California\'s Uniform Trade Secret Act.  It should not be permitted to walk away from this case after its egregious impositions on California\'s court system and on Mr. Bunner. 

This case has consumed hundreds of hours of judicial time.  There were extensive preliminary injunction proceedings, discovery proceedings, an appeal of the preliminary injunction to the Court of Appeal, an appeal of the preliminary injunction to the Supreme Court, and the current remand proceedings before the Court of Appeal.  There have three motions to stay briefed and heard by this Court, and writ proceedings in the Court of Appeal and the Supreme Court challenging the stays.

Likewise, defending Mr. Bunner for over four years in this case has consumed many hundreds of hours of attorney effort worth hundreds of thousands of dollars.  In addition to the proceedings listed above, there have also been extensive document discovery and depositions.  It would be unfair and unjust in the extreme to both the judicial system and to Mr. Bunner to conclude that DVD CCA may voluntarily dismiss the action without prejudice at this late date after repeatedly postponing for years Mr. Bunner\'s pending summary judgment motion.[1]  

CONCLUSION

DVD CCA\'s purported voluntary dismissal of the action should be vacated and the Court should decide the appeal on the merits.

February 18, 2004                    Respectfully submitted,            

	Richard R. Wiebe Attorney for Defendant Andrew Bunner

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