1 GIBSON, DUNN & CRUTCHER LLPROBERT
E.
COOPER (SBN 35888)2 rcooper@gibsondunn.comSAMUEL
G.
LIVERSIDGE (SBN 180578)3 sliversidge@gibsondunn.com333 South Grand Avenue4 Los Angeles, California 90071-3197Telephone: 213.229.70005 Facsimile: 213.229.75206 BARTLIT BECK HERMAN PALENCHAR
&
SCOTT LLPMARK
E.
FERGUSON
(pro hac vice)
7 mark.ferguson@bartlit-beck.comSEAN
W.
GALLAGHER
(pro hac vice)
8 sean.gallagher@bartlit-beck.com54 West Hubbard Street, Suite 3009 Chicago, Illinois 60654Telephone: 312.494.4400
10
Facsimile: 312.494.4400
11
Attorneys for Plaintiff and Cross-Defendant,HEWLETT-PACKARD COMPANY
12
13
14
SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SANTA CLARA
15
HEWLETT-PACKARD COMPANY,
16
Plaintiff,
17
v.
18
ORACLE CORPORATION,
19
Defendant.20
21
ORACLE CORPORATION,22
23v.
Cross-Complainant,24 HEWLETT -PACKARDCOMPANY,Cross-Defendant.CASENO.: 1-11-CV-203163Action Filed:Trial Date:June 15,2011May 31, 2012
HEWLETT-PACKARD
COMPANY'S
NOTICE
OF
MOTION
AND
MOTION
FOR
SUMMARY
JUDGMENT
AND/ORSUMMARY ADJUDICATION ON
ORACLE CORPORATION'S
CROSS-
COMPLAINT;
MEMORANDUM
OFPOINTS
AND
AUTHORITIES
IN
SUPPORT
THEREOF
[SEPARATE STATEMENT OFUNDISPUTED FACTS ANDDECLARATION OF JAMES
1.
ZELENA YJR. FILED UNDER SEPARATE COVER]Assigned For All Purposes ToThe Honorable James
P.
KleinbergHearing Date: April30, 2012Time: 9:00
a.m.
Dept.:
1C25
2627
28
PUBLIC REDACTED VERSION
Gibson, Dunn&Crutcher LLP
HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINTCASE NO.: 1-11-CV-203163
1
TO
THIS COURT,
ALL
PARTIES, AND
TO
THEIR
ATTORNEYS
OF
RECORD:
2 PLEASE TAKE NOTICE that on April 30, 2012, at 9:00 a.m., or as soon thereafter
as
the3 matter may be heard by this Court, located at
191
N. First Street, San Jose, California 95113, Plaintiff4 and Cross-Defendant Hewlett-Packard Company ("HP") will and hereby does move the Court5 pursuant to Civil Procedure Code section 437c for summary judgment and/or summary adjUdication6
of
Defendant and Cross-Complainant Oracle Corporation's ("Oracle") cross-claims for violations
of
7 the Lanham Act (15 U.S.C.
§
1501 et seq.) (First Cause
of
Action), the False Advertising Law (Bus.8
&
Prof. Code,
§
17500 et seq.,
"F
AL") (Second Cause
of
Action), the Unfair Competition Law (Bus.9
&
Prof. Code, § 17200 et seq., "UCL") (Third Cause
of
Action), and
defamation-libel
(Fourth
10
Cause
of
Action).l
11
The grounds for this Motion, set forth in greater detail in the attached Memorandum
of
Points12 and Authorities and accompanying papers, which are incorporated herein in full by this reference, are
13
that: (1) Oracle's alleged theory
of
"non-disclosure"-Le., that HP was under some sort
of
duty or14 obligation to disclose its confidential development agreement with
Intel-is
without support in the
15
facts or the case law, and does not provide a basis for Oracle's claims; (2) the alleged "false
16
statements" identified by Oracle are non-actionable puffery, and those statements that are verifiable17 are indisputably true; (3) Oracle's claim under the UCL fails for the additional reason that the
18
undisputed facts do not establish any "unlawful" or "unfair" business practices; (4) the allegedly19 defamatory statements upon which Oracle relies are not "objectively verifiable" and therefore are not20 actionable; and (5) Oracle cannot prove causation or injury as a result
of
any
ofHP's
alleged
21
statements or non-disclosures.22 This Motion is based on this Notice
of
Motion and Motion; the accompanying Memorandum
23
of
Points and Authorities, Separate Statement
of
Undisputed Material Facts, Declaration
of
James
L.
24 Zelenay, Jr., and supporting exhibits; all pleadings and records on file in these proceedings; all
25
262728
Gibson, Dunn&Crutcher LLP
I
This Motion addresses all
of
Oracle's remaining cross-claims, because Oracle has agreed tovoluntarily dismiss its Fifth Cause
of
Action for intentional interference with contractual relationsand its Sixth Cause
of
Action for intentional interference with prospective economic advantage, andthis Court previously dismissed Oracle's Seventh Cause
of
for Fraud / Equitable Rescission.
1
HP'S
MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
ON
ORACLE'S CROSS-COMPLAINTCASE NO.: 1-11-CV-203163
1 matters
of
which judicial notice may be taken; and
on
such other evidence and argument as may be2 presented to the Court before
or
during the hearing
on
this Motion.34 DATED: March
26,2012
5
6
78
910
11
12
13
14
15
1617
18
1920
21
222324252627
28
GIBSON, DUNN
&
CRUTCHER LLPBARTLIT BECK HERMAN PALENCHAR
&
SCOTT LLPBy: /s/ Samuel
G.
LiversidgeSamuel G. LiversidgeAttorneys for Plaintiff and Cross-Defendant,HEWLETT-PACKARD COMPANY2
Gibson, Dunn
&
Crutcher LLP
HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINTCASE NO.:
l-Il-CV-203163
.
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