Drink Tank Ventures LLC v. Soda (In re in Real Bottles, Ltd.)

71 Cal.App.5th 941

DRINK TANK VENTURES LLC, Plaintiff and Respondent,

v.REAL SODA IN REAL BOTTLES, LTD., et al., Defendants and Appellants.

Nos. B298881

B302215.

Court of Appeals of California, Second District, Division Two.

December 2, 2021.

[Modification of opinion (71 Cal.App.5th 528; ___ Cal.Rptr.3d ___), upon denial of rehearing.]

THE COURT.—IT IS ORDERED that the opinion filed on November 10, 2021, be modified as follows:

1. On page 6, in the second paragraph of section II.B. [71 Cal.App.5th 536, advance report, 1st par., line 2], insert a footnote at the end of the first sentence (which ends with the phrase "that Real Soda and Ginsburg had breached the NDA"), and renumber all subsequent footnotes. The new footnote should read:

4 Although the trial court refused to give Drink Tank's proposed instruction that spelled out in greater detail how Real Soda violated the NDA, there is no question that Drink Tank opted to rest its claim solely on violations of the NDA.

2. On page 17 [71 Cal.App.5th 543, advance report, 1st par., line 9], insert "(Varian Medical Systems)" immediately before the parenthesis ending the citation to

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196 [25 Cal.Rptr.3d 298, 106 P.3d 958] so that the full citation reads: (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196 [25 Cal.Rptr.3d 298, 106 P.3d 958] (Varian Medical Systems))

3. On page 20 [71 Cal.App.5th 544, advance report, last par., line 2], after the sentence "For these reasons, we conclude that the absence of subject matter jurisdiction is cognizable in this appeal," add the following sentence:

What is more, this error is cognizable without an additional showing of a miscarriage of justice. (Varian Medical Systems, supra, 35 Cal.4th 180, 199, fn. 10 [where trial court is divested of subject matter jurisdiction, the "miscarriage of justice" requirement in art. VI, § 13 of the Cal. Const. "does not and cannot reconfer such jurisdiction"]; cf. In re Jesusa V. (2004) 32 Cal.4th 588, 624 [10 Cal.Rptr.3d 205, 85 P.3d 2] [where trial court has subject matter jurisdiction, but merely acts in excess of jurisdiction, the miscarriage of justice requirement applies].)

There is no change in the judgment.

Respondent's petition for rehearing is denied.