Clarus Systems, Inc. v. Variphy, Inc.

Filed 7/31/06 Clarus Systems, Inc. v. Variphy, Inc. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

An opposed motion to dismiss this appeal has been filed by respondent Clarus Systems, Inc. (respondent) on the ground that the two orders appealed from are not appealable under Code of Civil Procedure section 904.1. We agree.

On June 8, 2006,[1] a complaint was filed by respondent in the San Francisco Superior Court seeking injunctive relief, an equitable accounting, and damages from appellants and alleging six causes of action, including statutory and common law trade secret misappropriations, breach of duty of loyalty, conversion, breach of contract, and unfair competition. The next day respondent appeared ex parte before the court and requested that: (1) an order to show cause (OSC) be issued setting a date to hear a motion for preliminary injunction, and (2) expedited discovery be allowed under a protective order. Both requests were granted by order dated June 9. A hearing on respondent's OSC for a preliminary injunction was set for July 19, and respondent was granted access, under a protective order, to certain computer equipment, software, and data in the possession of appellants so the same could be subjected to forensic testing. The items were to be delivered to respondent by June 13, and thereafter returned to appellants by June 20.

On June 21, respondent made another ex parte application, this time for an order enforcing the June 9 order with which appellants had allegedly not complied. The court granted, in part, the requested relief, and ordered appellants to provide immediate access to certain items that had been requested. Appellants have appealed from these two orders.

In opposition to respondent's motion to dismiss, appellants contend this appeal is authorized under Code of Civil Procedure section 904.1, subdivision (a)(6), which allows appeals to be brought â€