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LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) Alfred C. Pfeiffer, Jr. (Bar No. 120965) Sadik Huseny (Bar No. 224659) 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: (415) 391-0600 Facsimile: (415) 395-8095 ORACLE CORPORATION Dorian Daley (SBN 129049) Deborah K. Miller (SBN 095527) 500 Oracle Parkway M/S 5op7 Redwood Shores, California 94065 Telephone: (650) 506-5200 Facsimile: (650) 506-7114 Attorneys for Defendant and Cross-Complainant ORACLE CORPORATION

E-FILED
Apr 23, 2012 4:49 PM
David H. Yamasaki
Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-11-CV-203163 Filing #G-42217 By G. Duarte, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA HEWLETT-PACKARD COMPANY, CASE NO. 1-11-CV-203163 Action Filed: Trial Date: June 15, 2011 May 31, 2012

15 Plaintiff, 16 v. 17 ORACLE CORPORATION, 18 Defendant. 19 20 21 22 23 24 25 26 27 28

ATTORNEYS AT LAW SAN FRANCISCO

REPLY IN SUPPORT OF ORACLE CORPORATIONS MOTION FOR SUMMARY ADJUDICATION Date: May 2, 2012 Time: 1:30 PM Place: Department 1C

ORACLE CORPORATION, Cross-Complainant, v. HEWLETT-PACKARD COMPANY, Cross-Defendant.

Assigned for all Purposes to The Honorable James P. Kleinberg

REPLY IN SUPPORT OF ORACLE CORPORATIONS MOTION FOR SUMMARY ADJUDICATION CASE NO. 1-11-CV-203163

E-FILED: Apr 23, 2012 4:49 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-42217

1 2 3 4 5 B. 6 C. 7 8 9 III. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. I. II.

TABLE OF CONTENTS INTRODUCTION ............................................................................................................. 1 ARGUMENT..................................................................................................................... 1 A. HP Has Finally Admitted That It Is Impossible to Reconcile Its Position With the Concept of a Reaffirmation ................................................... 1 HP Cannot Use The Court to Write a Porting Agreement..................................... 3 HP Cannot Avoid Summary Adjudication By Claiming a Preference for Ambiguity ...................................................................................... 7 HPs Contention That It Was Unable to Tell Its Own Executive and Employees About the Porting Agreement Is Spurious................................ 9

CONCLUSION................................................................................................................ 10

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TABLE OF AUTHORITIES CASES California Lettuce Growers v. Union Sugar Co., 45 Cal. 2d 474 (1955) ............................................................................................................. 4 Forecast Homes, Inc. v. Steadfast Ins. Co., 181 Cal. App. 4th 1466 (4th Dist. 2010)................................................................................. 3 Magna Dev. Co. v. Reed, 228 Cal. App. 2d 230 (1st Dist. 1964) .................................................................................... 3 Steller v. Sears, Roebuck & Co., 189 Cal. App. 4th 175 (2d Dist. 2010).................................................................................... 9 Weddington Prods. v. Flick, 60 Cal. App. 4th 793 (2d Dist. 1998)...................................................................................... 4 White Point Co. v. Herrington, 268 Cal. App. 2d 458 (2d Dist. 1968)..................................................................................... 4 Winet v. Price, 4 Cal. App. 4th 1159 (4th Dist. 1992)..................................................................................... 9 Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107 (2d Dist. 2008)................................................................................ 10

STATUTES California Civil Code 1643.................................................................................................... 4, 7

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I.

INTRODUCTION The problem with making an argument like HPs in this case is that it eventually catches

up to you. Under stress the logic falls apart, forcing you to take positions that are so plainly wrong that no one can believe you any longer. HP first reached that point when it claimed that Oracle rejected specific porting commitments only because it wanted broad and undefined ones instead. But in opposition to Oracles Motion for Summary Adjudication, HP repeatedly passes beyond the limits of reason. It argues: Paragraph 1 of the Hurd Settlement Agreementwhich HPs Complaint refers to nine times as a reaffirmationas a whole, does not constitute[] a reaffirmation. HP Opp. to Oracle Mot. for Summ. Adj. (HP Opp.) at 14. The reason that no one in HPs Business Critical Systems (BCS) unit knew that this was a porting or product support agreement was because the settlement was confidentialeven though the confidentiality clause explicitly assumes that employees will be told, as they would have to be to perform the contract. Id. at 28. The Court can fill in the many gaps in the contract based on the parties course of dealing, including their previous formal porting agreementseven though every porting agreement the parties have executed or even proposed would bar HPs lost profits damages. Id. at 26. Because [h]ere, the course of dealing establishes a multi-year practice of porting Oracle software to HP servers without written contracts . . ., [t]his course of dealing created an implied contract . . . . Id. at 29.

HPs arguments are losing all touch with commercial reality. They ask this Court to ignore the way that rationally self-interested actors behave, to reverse the usual inferences arising 17 from terms that are proposed yet rejected, and to disregard the concept of reaffirmation that up 18 to HPs last brief defined this dispute. And thenbecause all that doesnt get HP to where it 19 needs to beHP would have this Court write the contract that Oracle indisputably refused to 20 enter by independently supplying every significant term of this alleged porting agreement, such 21 as its scope, performance standards, payment terms and duration. This is not the role of a court. 22 Courts interpret and enforce contracts; they do not write them for the parties. 23 The briefing has already covered most issues thoroughly, so we limit this Reply to four 24 points concerning HPs express contract claim. 25 26 27 28 II. ARGUMENT A. HP Has Finally Admitted That It Is Impossible to Reconcile Its Position With the Concept of a Reaffirmation

HP has now fully embraced the logical result of its ten-month effort to divorce the part of 1
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Paragraph 1 of the Hurd Settlement Agreement (the Reaffirmation Provision) that it likes from the rest of the provision. It states that the paragraph as a whole, does not constitute[] a reaffirmation. HP Opp. at 14:9 (emphasis and alteration in original). This position is spectacularly candidand plainly irreconcilable with the text of a paragraph that reads: Reaffirmation of the Oracle-HP Partnership. Oracle and HP reaffirm their commitment to their longstanding strategic relationship and their mutual desire to continue to support their mutual customers. Oracle will continue to offer its product suite on HP platforms, and HP will continue to support Oracle products (including Oracle Enterprise Linux and Oracle VM) on its hardware in a manner consistent with that partnership as it existed prior to Oracles hiring of Hurd. The term is called a reaffirmation, it consists of a reaffirmation, it was announced to the world in the parties press release as a reaffirmation, and HPs Complaint refers to it as a reaffirmation nine times. Compl. 4, 7, 10, 29 (twice), 31, 32, 33 & 79. HP has been trying to shoehorn its case into the reaffirmation rubric for ten months. For HP to now deny that Paragraph 1 is a reaffirmation is not just advocacy; it is an act of historical denial. We certainly understand HPs predicament: new, prospective obligations are not created by reaffirmation. But that is no excuse for reading the concept out of the agreement. HP makes this point while complaining about Oracles reference to Paragraph 1s title (Reaffirmation of the Oracle-HP Partnership). We disagree that the title becomes irrelevant because of Paragraph 20 of the Agreement (as we suspect HP would if the title read, Perpetual Unpaid Porting Commitment). But to simplify matters let us assume the title does not exist. The fact remains this was conceived as a reaffirmation, proposed to Oracle as a reaffirmation, and routinely referred to during negotiations as a reaffirmation; and both the first sentence of Paragraph 1 and the press release that announced the settlement explicitly use the words reaffirm and reaffirmed. HPs Sep. Stmt. of Disputed and Undisputed Mat. Facts In Opp. to Oracles Mot. for Summ. Adj. (Facts) O-29, O-32, O-43, O-44; Oracle Evidentiary Objections 10 (re Facts O-29). Oracles point thus does not rest[] on the title of Paragraph 1, cf. HP Opp. at 14:2, but on an undisputed string of facts proving that the overarching purpose of this provision was to reaffirm the relationship that was, not change it.

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We have already addressed HPs argument that the second sentence would be illusory unless construed as something more than a reaffirmation. See Oracle Opp. to HP Mot. for Summ. Adj. (Oracle Opp.) at 13-15.1 As for HPs argument that it rejected Oracles first draft of the Reaffirmation Provision because it referenced existing contractual commitments, that claim yet againignores the draft and email that followed. Oracle did not relent and accept HPs proposal to have the reaffirmation . . . include a porting commitment; Dorian Daley wrote back that this clause was intended to reaffirm and continue the existing relationship and not to put HP in a better position that it currently enjoys or result in the negotiation of a new contractual commitment. Facts O-34 (emphasis supplied). Oracle agreed to a reaffirmation, not more. B. HP Cannot Use The Court to Write a Porting Agreement

HP has now been forced to admit that the fuzzy, feel-good language in the Reaffirmation Provision would fail as a porting contract on its ownunless the Court supplies numerous detailed terms inferred from the parties course of dealing. HP acknowledges that it wants the Court to determine the scope, payment and duration terms that govern Oracle, proposing rules like (i) the 9 products listed in Exhibit A are the ones that Oracle must port, (ii) since paying Oracle to port in the past was the exception rather than the rule, Oracle is now entitled to no payment at all, and (iii) the duration of the contract is as long as HP and Intel continue to offer Itanium. See HP Opp. at 24-27; id. at 4:5-7 (inviting the Court to decide how long Oracles obligation should continue). There is no evidence whatsoever that Oracle agreed to anything like this. Indeed, it is undisputed that Oracle rejected proposals that would have encompassed most if not all of these obligations. Facts O-33, O-34, O-40. Thus, if the Court were to go down this path, it would be writing the very contract that Oracle rejected. It is black-letter law that courts will not write contracts for the parties. Magna Dev. Co. v. Reed, 228 Cal. App. 2d 230, 240 (1st Dist. 1964); Forecast Homes, Inc. v. Steadfast Ins. Co.,

HP also claims that because Paragraph 15 separately obligates the parties to issue the press release that reaffirmed the partnership publicly, Paragraph 1 cannot also serve a public relations purpose. This is baseless. The draft agreement used separate clauses for the press release and reaffirmation before the supposedly obligatory language HP relies on was added. See Facts O-32; Wall Decl. Ex. 29 (Sept. 11 draft). HPs Ann Livermore has also admitted that the Reaffirmation Provision itself had a public relations purpose. See Fox Decl. Ex. 1 (Livermore Dep. at 70:11-23).

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181 Cal. App. 4th 1466, 1476 (4th Dist. 2010) (We do not have the power to create for the parties a contract they did not make and cannot insert language that one party now wishes were there.). To be sure, filling in gaps in contracts is, in limited circumstances, a proper judicial functionbut that circumscribed authority does not put courts into the business of deal-making. In narrow instances, when the parties have already signed onto a bargain sufficiently defined to be a contract, courts can avoid vitiating the parties original intent to be bound by supplying a generally reasonable term, ascertainable by some objective standard, to fill an essential hole in their agreement. See Restatement (2d) of Contracts 204; Weddington Prods. v. Flick, 60 Cal. App. 4th 793, 811-13 (2d Dist. 1998). A court may not, however, use gap-filling to save an alleged agreement that is not otherwise sufficiently defined to be a contract. Restatement (2d) of Contracts 204. The size of the gaps of course matters to this calculus; when the gaps are in fact chasms, the contract either fails or requires a narrower construction. Weddington, 60 Cal. App. 4th at 813 (The more important the subject matter to be agreed upon, the more likely it is that the uncertainty will prevent or hinder enforcement.); see Cal. Civ. Code 1643.2 Importantly, where material missing terms are incapable of ascertainment by reference to an objective standard, gap-filling cannot be used to supply them. White Point Co. v. Herrington, 268 Cal. App. 2d 458, 466 (2d Dist. 1968). Here, HP is not asking the court to address minor matters of the sort contemplated in Weddington, or to embark on a limited inquiry like the one undertaken in California Lettuce Growers v. Union Sugar Co., 45 Cal. 2d 474 (1955)the case HP cites as particularly instructive. HP Opp. at 23:16. In Lettuce Growers, there was no doubtnot even any dispute that the parties both wanted to enter into a growing agreement whereby California Lettuce would deliver its 1949 crop of sugar beets to Union Sugar. But when a dispute arose over the price for the produce, California Lettuce tried to get out of the deal by claiming the absence of a price term
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The Restatement suggests as an illustration of this a building contract which is definite in all particulars except for a provision that the form of window fastening shall be afterwards be agreed upon. . . . This would not make the entire building contract unenforceable; by contrast, if the nature of the window fastenings was fixed by the agreement while the dimensions of the building were left to future agreement, there would be no enforceable obligation. Obviously, the question is one of degree. Weddington, 60 Cal. App. 4th at 813 (quoting 1 Williston on Contracts (4th ed. 1990) 4:28).

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rendered the contract unenforceable. The Supreme Court would not allow that opportunism, and held that where industry-standard practices and the parties own prior contracts established a flat price per ton of beets graduated on the basis of their sugar content, the contractual commitment could not be avoided. See Lettuce Growers, 45 Cal. 2d at 483. HP is not asking the Court to figure out the prevailing price of beets. It is asking the Court to create numerous material contract terms and draft a highly technical agreement from scratch. The following is a non-comprehensive list of the contract terms the Court would have to devise in order to permit this case to go forward: Terms from porting agreements. Each of Oracle and HPs past porting agreements contains numerous terms that the parties negotiated. For example, the agreements define the precise products to be ported, sometimes with exclusions (e.g., Facts O-1; Wall Decl. Ex. 21 at 1.b); the platform to which the software will be ported (id.); performance criteria (id. at 4.b); intellectual property rights in the ported works (id. at 8); the amount of money that HP has to pay Oracle for its porting efforts, both for the initial port and maintenance (id. at Attach. D); the equipment that HP is to make available to Oracle to carry out the port, and what Oracle can and cannot do with such equipment (id. at 3.a, 4.g; Attach. A, A1); public statements expressing commitment to the platform (id. at 5.c); the project management structure of the porting effort (id. at 3.b, 4.b; Attach. B); and numerous standard contractual terms including limitations of liability (id. at 10). See also Facts O-3-13; Wall Decl. Ex. 22-24. Who knows whether Oracle or HP would have agreed to the same versions of those terms when trying to wrap all porting obligations covering all Oracle products and all HP platforms into one agreementbut they surely would have addressed them. The Court cannot do all that work for the parties. A term defining the duration of Oracles porting obligations. HP admits that duration is a critical missing term, but says it is a judicial responsibility to determine how long Oracle must port its software to HP-UX. HP Opp. at 4:3-4. This is a potentially dispositive issue in this case, and at the very least has a profound effect on damages. HP is complaining only about future software. If the duration is short, so that the contract expires before Oracle releases such software,

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Oracle would not be in breach.3 Plaintiffs damages expert has already admitted that if Oracle is required to port only one more version of its software, he would have to revise his damages claim. Fox Decl. Ex. 2 (Orszag Dep. at 129:8-135:14). The market consequences of a short porting commitment, leading to an earlier end of life, are likely indistinguishable from the status quo. The Court cannot just pick a term for this obligation. Any period it selected would be arbitrary, as HPs proposed life of the platform term certainly is. Incredibly, it is based on HPs agreement with Intelclearly not part of the Oracle-HP partnership. HP Opp. at 27 n.5. A term defining Oracles duty to issue software updates and patches. HP contends that Oracle breached the Reaffirmation Provision by impermissibly departing from its past practice with respect to fixing bugs in the software it has already released to the public. Compl. 67. It remains a mystery where, precisely, HP thinks the Court should look to determine the required frequency, form, efficacy, pricing, duration, scope, and punctuality of the software fixes that HPs interpretation of the Reaffirmation Provision mandates. A term defining the range of prices that Oracle can permissibly charge customers for its products. HP contends that Oracle breached the contract with its December 1, 2010 change to the core factor that determines how many licenses a customer must buy to run Oracle database software on HP (and other) platforms. See Compl. 60-61, 67. The Reaffirmation Provision says nothing about what prices Oracle can charge its customers. Nor have the parties ever had a contract constraining Oracles pricing. HP has given no indication how the Court would identify, from their twenty-five-year course of dealing, what range of prices the parties intended to limit Oracle to charging when they drafted this agreement. Remedies provisions. Every porting agreement that Oracle and HP have ever entered or contemplated addressed numerous commercial terms that sophisticated parties consider, and every one contained a limitation of liability clause that specifically prohibited claims for lost profits:

To illustrate, if the Court decided that the duration of Oracles porting commitment should be comparable to the duration of the other limited commitments in the Hurd Settlement Agreement, the porting commitment would already have expired. See Hurd Settlement Agreement 3 (imposing a six-month term); 4 (six-month term); 7 (eighteen-month term). Each of the parties past porting agreements has also had a limited term. See, e.g., Facts O-8, O-13.

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Limitation of Liability: NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE. EACH PARTYS MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUR OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY EITHER PARTY UNDER THIS AGREEMENT. See Facts O-1, O-3, O-4, O-9; Wall Decl. Ex. 21 at 10.b, 22 at 10.b, 23 at 10.b, 24 at 10.b. As we have separately advised the Court, applying the parties course of dealing consistently would mean that HPs only damages claimfor lost profits supposedly caused by Oracles breach of the alleged porting commitmentis barred. In the end, the Court need not confront any of these issues. The proper inference to draw from the parties sometimes-contractual but mostly voluntary porting history is that the Reaffirmation Provision preserves the discretion they have historically had. See Oracle Opp. at 15-16. Their long course of dealing is not raw material from which the Court can fashion a contract they have been willing to make themselves only occasionally. The absence of all of these material deal terms simply confirms that the parties could not have intended for the Reaffirmation Provision to impose the obligations HP now claims. A narrower interpretation that uses the parties chosen language is required as a matter of law. Cal. Civ. Code 1643. C. HP Cannot Avoid Summary Adjudication By Claiming a Preference for Ambiguity

HPs most desperate argument is its effort to convince the Court that Ann Livermores testimony creates a fact dispute that only a jury can resolve. HP Opp. at 21:28-22:5. We have already addressed this at pages 9-13 of Oracles Opposition to HPs MSA, but briefly, HPs claim is that Oracle co-President Safra Catz told Ms. Livermore that Oracle intended to take on a generalized obligation to port its product suite to HP platforms indefinitely, but was unwilling to negotiate more specific (and thus narrower) obligations to port identified products on limited terms. HP Opp. at 16:16-17. This supposedly explains, without destroying HPs case, why all the contemporaneous documentary evidence shows that Oracle rejected every effort HP made to insert porting and pricing commitments into the Reaffirmation Provision.

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Now that we have seen the full version of this argument, the one additional point we can make is that Ms. Livermores testimony does not say what HP claims that it says. Each excerpt from Ms. Livermores deposition that HP has proffered says nothing more than that Ms. Catz promised that the parties business relationship generally would be unchanged by Oracles hiring of Mr. Hurd. Not a single line of testimony from Ms. Livermore goes further than that. What Ms. Livermore said (with admirable consistency) is that Ms. Catz said Oracle would continue with the existing business practices that were in place before the hiring of Mark, it would be a continuation of the business relationship as it existed before the hiring of Mark, and we would continue with the relationship in the same manner as what existed before the hiring of Hurd. HP Opp. at 6:14-26. None of these statements by Ms. Catz mentions or promises porting or pricing protection, let alone states that everything the parties had done together in their twenty-five year course of dealing would become newly obligatory. But to each of these statements by Ms. Catz, Ms. Livermore then added that she understood Ms. Catz to include in her statements the porting of their products and us getting competitive pricing or words to that effect. Id. And in every case, that is because Ms. Livermore claimed that, to her, these were defining characteristics of the partnership.4 However, Ms. Livermoredespite many opportunitiesdid not say that Ms. Catz told her that porting and pricing commitments were what Oracle meant by its promise to continue the existing business relationship. Nor could she. At her deposition, she specifically acknowledged that she and Ms. Catz did not discuss whether the Reaffirmation Provision would expand the scope of Oracles porting duties relative to what was in the parties existing, limited, porting agreements (Fox Decl. Ex. 1 (Livermore Dep. at 107:24-108:6)); she specifically acknowledged that she and Ms. Catz did not discuss whether the Reaffirmation Provision would constrain

Ms. Livermore employs the same technique of adding her spin to an innocuous statement by Ms. Catz where she claims that Safras feedback to me was that she preferred that we not try to include all the specifics and details. . . . I agreed that was probably correct, because we had such a broad, deep, expansive relationship, [and thus] we could never document all the details associated with it. See Facts H-8 (alterations in HP citation). It is absolutely true that Ms. Catz was unwilling to negotiate specific business commitments with all the necessary details. But what is missing from Ms. Livermores statement is anything indicating that Ms. Catz wanted to make a general yet contractually binding porting commitment.

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Oracles discretion to set market prices for its products (id. at 110:21-111:2); and she pointedly refused to testify that porting had come up at all in her conversation with Ms. Catz (id. at 107:24109:2) (Q. Did you ever have a conversation with Ms. Catz in which you told her that Oracles discretion as to when it would port software to HP platforms . . . would be lessened if they entered into this contract? A. I had a conversation with Safra that Oracle would continue the existing business practices that were in place before the hiring of Mark.). This is a classic case of presenting an alleged private understanding of a contract as extrinsic evidence of the parties intentions. But Ms. Livermores private understanding is irrelevant to the interpretation of the Reaffirmation Provision as a matter of law. See Steller v. Sears, Roebuck & Co., 189 Cal. App. 4th 175, 185 (2d Dist. 2010) (The parties undisclosed intent or understanding is irrelevant to contract interpretation.) (citation omitted). Perhaps it is true that Ms. Livermore thought porting was implicit in any reaffirmation. The facts remain undisputed that (a) Ms. Catz did not say that, and (b) Oracle twice rejected written porting proposals. Furthermore, HPs second effort at a porting obligation was one sentence totaling 37 words. Facts O-37. It was hardly detailed. Oracle rejected its content, not its length. Id. O39. Under these circumstances summary adjudication remains appropriate. See Winet v. Price, 4 Cal. App. 4th 1159, 1166 n.3 (4th Dist. 1992) (rejecting effort to create a jury issue with testimony of undisclosed interpretation: While this subjective intent evidence was conflicting, it was not competent extrinsic evidence, because evidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language.) (citation omitted). D. HPs Contention That It Was Unable to Tell Its Own Executive and Employees About the Porting Agreement Is Spurious

The final issue we will address is HPs answer to the fact that Martin Fink, the HP Senior Vice President who runs the multi-billion dollar BCS business and was personally involved in the Hurd settlement process (Wall Decl. Ex. 6 (Fink Dep. at 31:8-33:21; 133:4-20)), had no idea that the Reaffirmation Provision imposed any obligations on HP to support the Oracle products specifically named in the provision and therefore was not planning to do so. See Oracle Mem. in Supp. of Mot. for Summ. Adj. at 25-26. That concession means there is no chance that HP 9

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actually discharged any such obligation, which by itself bars HPs claim. It is also powerful course-of-performance evidence, because if the man charged with performing on the agreement for HP, and receiving the benefits of Oracles performance, does not even know about it, how could this be a real product support and development contract? HPs explanation for why Mr. Fink didnt know about this supposed product support agreement is nothing short of jaw-dropping: The Settlement Agreement was negotiated by HPs most senior executives, and had a provision requiring confidentiality. Thus, it was not disclosed to HP employees, including Mr. Fink. HP Opp. at 28:7-9. Paragraph 16 the Hurd Settlement Agreement says, the terms and nature of this Agreement shall remain confidential and shall not be disclosed by the Parties, or the executives, agents, attorneys employees or members of the Board of Directors of Oracle and HP[.] It thus specifically contemplates that executives like Mr. Fink and other employees of the parties will know about the terms and nature of the contract. Besides, they have to know in order to execute the contracta point Ms. Livermore made about Mr. Fink in particular: [H]e had to go back the next day and work. You know, he had to know what was agreed or what wasnt agreed. Fox Decl. Ex. 1 (Livermore Dep. at 182). This is Oracles point: the fact that Mr. Fink and his staff, by their own admission, did not know about this so-called porting and product support agreement, or that they were allegedly bound to support Oracle Enterprise Linux, is not consistent with HPs claim that this is a genuine porting and product support agreement. HP did not behave as if this reaffirmation was that kind of agreement, and no one in the BCS unit made any effort to perform HPs alleged obligations. The Court has every right to draw the inevitable conclusion. Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107, 1134 (2d Dist. 2008). III. CONCLUSION Oracle respectfully asks the Court to grant Oracles Motion for Summary Adjudication. Dated: April 23, 2012 LATHAM & WATKINS LLP By: /s/ Daniel M. Wall Daniel M. Wall Attorney for ORACLE CORPORATION

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