In the construction of a statute, the office of the judge is simply to ascertain and declare what the text chosen by Legislature means, “not to insert what has been omitted, or to omit what has beeninserted. . ..” Cal. Civ. Proc. Code § 1858. The judicial role in a democratic society is fundamentally to interpret laws, not to write them, as the function of a court is to declare the law and not to makeit.

03(b)(iii) should be rejected. See Cal. Code Civ. P. § 1858 (courts should not insert terms or ignore terms that alter the meaning of a contract). 2.

As noted in Vikco, this provision provides as follows: In the construction of a statute..., the office of the Judge is simply to ascertain and declare what is in terms or substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Vikco, 70 Cal.App.4th at 61 {citing Cal. Code of Civ. Proc. § 1858). Using this well-settled analysis, it is clear the Legislature did not intend to provide for a private remedy for Section 558.1.

CV-I 0-3328 RS Case 3:10-cv-03328-RS Document 181 Filed 09/02/16 Page 10 of 21 1 must presume that the California Legislature's act of enacting a post-mortem right of publicity and 2 defining it as a "property right," and excluding such language from the statute for a living person's 3 right of publicity, was intentional. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) 4 ("Where Congress includes particular language in one section of a statute but omits it in another 5 section of the same statute, it is generally presumed that the Congress action intentionally and 6 purposefully in the disparate inclusion or exclusion"); Greyhound Lines, Inc. v. County of Santa 7 Clara, 187 Cal.App.3d 480,487 (1986) (the "judicial role in interpretation of this statute is simply 8 to ascertain the intent of the Legislature [ citations omitted] not to insert what has been omitted, or 9 to omit what has been inserted") ( quoting Cal. Civ. Proc. Code § 1858). IO This clear distinction between living and post-mortem right of publicity law is further 11 reflected by the differences in case law addressing California's choice oflaw rules.

The Court should reject this transparent effort by VMware to avoid the “Licensee’s Products” restriction by effectively rewriting the terms agreed between the parties. Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1385 (2012) (rejecting interpretation that “would effectively require [the court] to read language into” the agreement); Cal. Civ. Proc. Code § 1858 (in construing an instrument, the court may not “insert what has been omitted, or [] omit what has been inserted”). Because VMware’s proposed interpretation is unreasonable on its face, it does not create a triable issue precluding summary judgment.

Effect should be given to the entire statute and in a manner that would not render any part of the statute meaningless or extraneous or suggest that the Legislature “engaged in an idle act.” Cal. Code Civ. Proc. § 1858; Woosley, 3 Cal.4th at 775-776. Moreover, she also agrees that, in interpreting a statutory scheme, the statute’s structure and purpose must be considered.

C. Reading “Action” And “Proceeding” In Context Supports An Inclusive—Not Exclusive—lIntent. Whenconstruing a contract,its language must be considered as a whole, taking its individual provisions, sentences, and words together, so as to give an effect to each part, if practicable. (Civ. Code, § 1641; Code Civ. Proc., § 1858.) A contract’s meaning “is not to be determinedbyisolating one term used bythe parties and defining it without reference to other language of the contract.”

4 Not surprisingly then, all but one 5 “preemption” case cited by Defendants involves labor matters. See Flood, 407 U.S. 258 (antitrust claim challenging MLB’s reserve system barred); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 611 (7th Cir. 1997) (inapposite 4 See Cal. Code Civ. Proc. § 1858 (“In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted . . .”); Cal. Civ. Code § 3530; see also Iselin v. United States, 270 U.S. 245, 251 (1926) (“To supply omissions transcends the judicial function”).

(i) The Inclusion of One Thing In A Statute Excludes Any Other “In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare whatis in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and wherethere are several provisionsorparticulars, such a construction is, if possible, to be adopted as will give effect to all.” Code Civ. Pro. § 1858. The enumeration ofparticulars in a statute implies the intentional exclusion of any omitted item. Garson v. Juarique (1979) 99 Cal.App.3d 769, 774.

IBM, however, proposes that it should be absolved of any payment obligations, regardless of how much revenue it derives from products containing Actuate software, and regardless of whether its Tivoli product actually qualifies as a “Natural Successor” to the licensed MRO products. IBM’s proposed reading is not only a completely implausible interpretation of anything that Actuate would have considered agreeing to from a business perspective, but flies in the face of the axiomatic principle of contract construction requiring one to “look to the agreement’s language in context and construe each provision in a manner consistent with the whole such that none is rendered nugatory.” Dupree v. Homan Professional Counseling Centers, 572 F.3d 1094, 1097 (9th Cir. 2009); see Cal. Civ. Code. § 1641 (“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”); Cal. Code Civ. Proc. § 1858 (“where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”); Westmoreland Coal Co. v. Entech, Inc., 794 N.E.2d 667, 670 (N.Y. 2003) (“A written contract Case3:09-cv-05892-JCS Document20 Filed02/12/10 Page22 of 24 FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF ACTUATE’S OPPOSITION TO MOTION TO DISMISS COMPLAINT 19 CASE NO. CV 09 5892 JCS will be read as a whole, and every part will be interpreted with reference to the whole; and