Yield Dynamics, Inc. v. Tea Systems Corp.

Page 503a

         Santa Clara County Super. Ct. No. CV000690

         THE COURT

         Rushing, P. J.

         It is ordered that the opinion filed herein on August 23, 2007, (154 Cal.App.4th 547; ___ Cal.Rptr.3d ___), be modified as follows:

         1. On page 17 [154 Cal.App.4th 563, advance report, 2d full par., line 1], 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 [154 Cal.App.4th 565, advance report, 1st par., line 5], 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 [154 Cal.App.4th 570, advance report, 4th full par., line 4], 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, [154 Cal.App.4th 573, advance report, 2d full par., line 7], lines 4, after the sentence ending “time will be inferred” add as footnote 19 the following footnote, which will require renumbering of all subsequent

Page 503b

         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 [154 Cal.App.4th 574, advance report, 3d full par., line 2], 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 [154 Cal.App.4th 575, advance report, 3d full par., line 13], 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.