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O'Reilly v. Musk

California Court of Appeals, Sixth District
Mar 23, 2011
No. H035288 (Cal. Ct. App. Mar. 23, 2011)


JOHN O’REILLY, Plaintiff and Appellant, v. ELON MUSK, Defendant and Respondent. H035288 California Court of Appeal, Sixth District March 23, 2011


Santa Clara County Super. Ct. No. CV083172.

Duffy, J.

This appeal arises out of a postjudgment order awarding costs in favor of defendant Elon Musk. Plaintiff John O’Reilly appealed the costs order entered against him and filed an opening brief advancing his position that the order should be reversed. After the filing of respondent’s brief, O’Reilly filed a reply brief in which he indicated that he no longer wished to pursue the appeal of the costs award. We will dismiss the appeal.


O’Reilly filed this action against Musk in 2007. In July 2007, as a self-represented litigant, he filed a verified second amended complaint (complaint). The gravamen of the complaint is the claim that in 1995, Musk misappropriated O’Reilly’s trade secrets involving the sale of advertising to merchants; the trade secrets were known as the Internet Merchant Channel (IMC). Included among the six causes of action alleged in the complaint was a claim for misappropriation of trade secrets under the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.; UTSA). Musk filed a motion for summary judgment, or, in the alternative, for summary adjudication of claims (motion). The court granted the motion on the basis that Musk did not have standing to sue, one of several grounds urged by Musk. Judgment was entered in favor of Musk on August 18, 2009. O’Reilly appealed from the judgment, and in an unpublished opinion, we affirmed, concluding, inter alia, that the trial court correctly held that O’Reilly lacked standing to sue. (O’Reilly v. Musk (Sept. 28, 2010, H034863) [nonpub. opn.].)

After entry of judgment, Musk filed a memorandum of costs. O’Reilly apparently filed a motion to strike or tax costs. On January 22, 2010, the court granted O”Reilly’s motion to tax costs in part by awarding Musk costs in the sum of $13,513.76, which represented a reduction of about $8,000 of the amount of costs originally claimed by Musk. O’Reilly filed a timely notice of appeal of the costs order.

O’Reilly’s motion to strike or tax costs is not part of the record on appeal, although reference to such motion is made in Musk’s opposition and in the costs order, both of which documents are included in the record.

O’Reilly appeals separately from a postjudgment order awarding attorney fees to Musk under Civil Code section 3426.4. We ordered that the two appeals be considered together for purposes of briefing, argument, and disposition. We dispose of that appeal by separate opinion filed this date. (O’Reilly v. Musk (H035511, app. pending.).

In his opening brief, O’Reilly argued that the court erred because in awarding costs in favor of Musk, it relied on Code of Civil Procedure section 1032, subdivision (b), which entitles a prevailing party to statutory costs incurred in an action or proceeding “as a matter of right.” Musk argued that another statute, namely, Civil Code section 3426.4 (which is part of UTSA), controlled and that such statute authorized the award of costs, in the court’s discretion, where it found, inter alia, that a trade secret misappropriation claim was made in bad faith. In the respondent’s brief, Musk argued that O’Reilly waived the contention that Civil Code section 3426.4 governed the award of costs by failing to assert it below, and, in any event, the claim was meritless. In O’Reilly’s reply brief, he states simply, “Plaintiff declines to pursue his appeal of the trial court’s award of costs to Defendant.”

We will treat O’Reilly’s belated decision not to “pursue his appeal” as an abandonment of any appeal of the costs order and as an implicit request that we dismiss the appeal in accordance with rule 8.244(c) of the California Rules of Court. We shall therefore exercise our discretion to dismiss the appeal.


The appeal is ordered dismissed pursuant to California Rules of Court, rule 8.244(c)(2).

WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.

Summaries of

O'Reilly v. Musk

California Court of Appeals, Sixth District
Mar 23, 2011
No. H035288 (Cal. Ct. App. Mar. 23, 2011)
Case details for

O'Reilly v. Musk

Case Details

Full title:JOHN O’REILLY, Plaintiff and Appellant, v. ELON MUSK, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Mar 23, 2011


No. H035288 (Cal. Ct. App. Mar. 23, 2011)