Software Freedom Conservancy, Inc. vs. Vizio, Inc.

MOTION NO. 6 [ROA 63]: Plaintiffs Ken Satin and Advocate Law Firm, P.C.’s motion to deem admitted matters set forth in Plaintiffs’ Requests for Admissions (Set One) served on defendant Hani Habbas, is DENIED as MOOT.

On 11-21-25, Habbas’ counsel submitted a Supplemental Declaration which states Habbas served his verified responses to Plaintiff’s Requests for Admission (Set One). (ROA 90; Rasheed Decl., ¶ 3.)

Plaintiffs to give notice. 12 21-01226723 Motion for Summary Judgment and/or Adjudication

Software Freedom Defendant Vizio, Inc.’s Motion for Summary Adjudication (ROA 734) Conservancy, Inc. vs. is) GRANTED. Vizio, Inc. Plaintiff’s objections (ROA 744) are overruled.

Procedural History:

In the First Amended Complaint (FAC), Plaintiff asserts claims for breach of contract and declaratory relief related to Defendant’s use of open-source software for its smart TVs.

Defendant filed its first motion for summary judgment, or in the alternative summary adjudication, on 4/28/23. It asserted Plaintiff’s contract and declaratory relief claims failed due to (1) Copyright Act preemption and (2) Plaintiff not being an intended third-party beneficiary of the open-source software licenses. The Court denied that motion on the grounds that Plaintiff’s claims did not arise under the Copyright Act and the language of the agreements suggested that third parties such as Plaintiff were intended to benefit from the open-source license through the right to receive the source code.

Defendant filed its second motion for summary adjudication on 5/2/25, asserting the open-source licenses did not require it to provide all information necessary to permit users to reinstall modified software on Vizio’s devices. The Court granted the second motion on the grounds that the language of the agreements did not create such a duty.

Now, Defendant moves for summary adjudication as to another aspect of Plaintiff’s contract claim – whether Plaintiff has demonstrated consideration sufficient to support its direct contract allegations.

Plaintiff’s Procedural Objections:

Plaintiff contends Defendant’s motion fails to comply with Code of Civil Procedure section 437c(f)(1), which states:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party

contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Here, Defendant’s notice seeks the following relief:

“[S]ummary adjudication as to Software Freedom Conservancy, Inc.’s (“SFC’s”) first and second causes of action for breach of contract and declaratory relief, with respect to the following issue: whether there was valid consideration to support the formation of a direct contract between SFC and VIZIO based on the request for source code made by Mr. Paul Visscher.

VIZIO moves on the ground that SFC’s alleged direct contract with VIZIO is unsupported by consideration. VIZIO provided no legally valid consideration, as it merely promised to do what the GPL already requires it to do. SFC also provided no legally valid consideration, as it provided nothing to VIZIO, nor gave up any rights, when it purportedly accepted VIZIO’s written offer on the D32h-J09 Smart TV. Finally, contrary to SFC’s position, VIZIO’s preexisting rights and duties under the GPLv2 and LGPLv2.1 (collectively, “the GPL”) are not legally valid consideration either. Accordingly, SFC’s assertion that VIZIO breached a separate contract with SFC fails because the alleged contract was never formed. Resolving this question of duty as a matter of law is appropriate for summary adjudication and will significantly narrow the scope of this case for trial.” (Defendant’s Motion, p. ii.)

Plaintiff argues Vizio fails to request summary adjudication as to any issue permitted by section 437c(f)(1), i.e. whether an entire cause of action lacks merit, whether an affirmative defense lacks merit, whether a claim for damages lacks merit, or whether a defendant owed a duty. Moreover, Plaintiff asserts that if the motion is granted it will not “completely dispose[] of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Specifically, Plaintiff asserts that Vizio’s argument would not resolve the issue of its duty to perform on the contract because even in the absence of consideration, the duty may still be enforced under principles of promissory estoppel.

In reply, Defendant argues the motion properly seeks to adjudicate the issue of “contract formation,” which would dispose of the issue of Vizio’s duty to provide source code under the direct contract, and would dispose of Plaintiff’s direct-contract claim, which Vizio argues is distinct from its third-party beneficiary claim although Plaintiff strategically styled these claims as a single cause of action.

Plaintiff’s direct contract claim is based on a separate and distinct contract and legal theory from its third-party beneficiary contract claim based on the open-source licenses. Plaintiff’s decision to include both of these theories/claims in a single cause of action does not prevent the Court from separately adjudicating Plaintiff’s direct-contract claim, which is the proper subject of a motion for summary adjudication.

Summary of Undisputed Facts:

On 4/26/23, Plaintiff’s agent Paul Visscher contacted Vizio to request source code for a smart TV. (Undisputed Material Fact [UMF] 8.) Plaintiff asserts Visscher’s internet chat exchange with a Vizio representative gave rise to a direct contract between Plaintiff and Defendant, including a duty to provide machine-readable source code. (UMFs 11-12.) Visscher testified he did not provide anything in exchange for the source code. (UMF 14.)

Vizio’s written offer to provide source code pursuant to the open-source licenses, contained in the user interface of the smart TVs, stated in part the following:

“VIZIO offers to provide applicable source code upon request for a processing fee covering the cost of fulfilling the distribution, such as the cost of the medium used and shipping and handling. To make a request, please contact VIZIO at support.vizio.com.” (UMF 9.)

The licensing agreements allow Vizio to require a processing fee. (UMF 9.) However, Visscher testified he did not recall paying or agreeing to pay a processing fee. (Vizio’s Rebuttal Fact 1.) Plaintiff states Visscher received the requested source code from Vizio on 5/6/23 via USB drive. (Plaintiff’s Additional Fact 21.)

Merits:

Defendant contends mutual consideration is necessary for contract formation, and here Mr. Visscher did not provide any consideration. It asserts Vizio also did not provide consideration because Defendant’s “promise to do something that [i] is already legally obligated to do [provide source code under the open-source licenses] cannot constitute valid consideration.” (Motion, p. 1.)

Vizio has met its initial evidentiary burden to demonstrate Plaintiff/Mr. Visscher did not provide consideration in exchange for Vizio providing source code.

Plaintiff does not dispute the general principles of contract law cited by Defendant. However, Plaintiff argues (1) there was a binding “unilateral contract” which required only performance of Visscher’s act of making the request to Vizio, (2) Visscher conferred benefits/suffered detriment by providing his personal contact information and agreeing to Vizio’s processing fee, (3) Vizio has disputed the open-source licenses create a contractual duty, so it cannot inconsistently argue the preexisting duty

created by the licenses invalidates its consideration to create the direct contract, and Vizio imposed new conditions in its standing offer not required by the license, and (4) promissory estoppel creates a duty so resolving the consideration issue would not entirely resolve the direct contract claim.

The essential elements of a contract are: “‘1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.’ (Civ. Code, § 1550.)” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1231 [cleaned up].)

Although Vizio’s written offer stated a processing fee would be required to obtain source code, there is no evidence Ms. Visscher actually paid such a fee here.

1. There was no Unilateral Contract:

“‘In a unilateral contract, there is only one promisor, who is under an enforceable legal duty. The promise is given in consideration of the promisee’s act or forbearance. As to the promisee, in general, any act or forbearance, including continuing to work in response to the unilateral promise, may constitute consideration for the promise.’ (Asmus, supra, 23 Cal.4th at p. 10, 96 Cal.Rptr.2d 179, 999 P.2d 71; accord, People v. Mohammed (2008) 162 Cal.App.4th 920, 933, 76 Cal.Rptr.3d 372 [‘A unilateral contract is one in which a promise is given in exchange for some act, forbearance or thing; there is only one promisor.’].)” (Mar v. Perkins (2024) 102 Cal.App.5th 201, 214 [cleaned up].)

Defendant argues there was no unilateral contract because there Vizio did not intend that “being contacted by third parties” would constitute consideration. “Unlike a reward offer where the act of returning a lost pet, for example, is part of a requested exchange, the act of contacting VIZIO is not part of a requested exchange, but instead merely an incidental condition attached to receiving source code.” (Reply, p. 7.) Defendant asserts this offer is distinguishable from an advertisement such as in Harris v.

Time, Inc. (1987) 191 Cal.App.3d 449, 453, which stated the customer could obtain a free watch merely by opening an advertiser’s envelope. There, Defendant asserts, “the act of opening the envelope was highly valuable to the sender—it was a ‘ploy’ to solicit magazine subscriptions” because inside the envelope was a further requirement to subscribe to a magazine to obtain the item. (Reply, pp. 7- 8.)

A unilateral contract is a contract in which acceptance is demonstrated by performance. (See Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 10, fn. 4.) It does not constitute a waiver of the element of consideration beneficial to the offeree. For example, a unilateral employment contract exists when the employer offers to pay a wage in return for work, and the employee accepts by performing the work. (Ibid.)

Plaintiff analogizes this case to unilateral contracts where members of the public respond to a promotional advertisement such as in Harris, supra, which required “the opening of the envelope, with consequent exposure to Time’s sales pitch.” (191 Cal.App.3d 456.) In those cases, the advertiser obtains the benefit of the potential customer’s review and dissemination of its marketing materials.

Here, Plaintiff has not shown that Mr. Visscher making a request for source code benefitted Defendant in any way, such as providing Vizio with the benefit of Visscher’s labor or allowing Defendant to market its business. Rather, the request invoked a process that was likely a minor inconvenience to Vizio without Vizio obtaining any substantial benefit. Moreover, Mr. Visscher testified he never paid a processing fee to Vizio.

Plaintiff has not demonstrated the existence of a unilateral contract because he has not demonstrated performance of any act that benefitted Defendant, nor is there any evidence Defendant intended to create a unilateral contract via its offer to provide source code.

2. Visscher did not Confer a Benefit/Suffer Detriment by Providing Contact Information and Submitting to a Processing Fee:

“‘To constitute consideration, a performance or return promise must be bargained for.’ (Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1249, 18 Cal.Rptr.3d 187; see ibid. [‘In the typical bargain, the consideration and the promise bear a reciprocal relation of motive or inducement: the consideration induces the making of the promise and the promise induces the furnishing of the consideration’ (quoting Rest.2d Contracts, § 71, com. b, p. 173)].) ‘Put another way, the benefit or prejudice must have induced the promisor's promise.’” (People v. Wimer (2022) 74 Cal.App.5th 113, 127 [cleaned up].)

Defendant argues, “As SFC’s own case explains, ‘it is not enough to confer a benefit or suffer prejudice for there to be consideration.’ Steiner v. Thexton, 48 Cal. 4th 411, 421 (2010). Rather, the benefit or prejudice must have induced the promisor’s promise.’ SFC meets neither requirement. Merely providing contact information is neither a benefit to VIZIO nor a detriment to SFC. See Mehta, 737 F. Supp. 2d at 1197.” (Reply, p. 8 [cleaned up].)

Here, Plaintiff has not shown that providing Visscher’s contact information and agreeing to a processing fee (which was apparently never paid) constituted a benefit to Vizio or a detriment to Plaintiff. For example, Plaintiff has not demonstrated Defendant used Visscher’s contact information for any purpose other than complying with the request to provide source code. Therefore, Plaintiff has not demonstrated these aspects of the transaction demonstrate a triable issue regarding consideration.

3. Did Vizio Merely Comply with a Preexisting Duty?

Although the existence and scope of Vizio’s duty under the open-source licenses has been disputed, for purposes of this motion Vizio concedes it has a duty to provide source code under the licenses. Plaintiff has not cited legal authority holding Vizio is precluded from making such a concession for purposes of the motion, nor has Plaintiff demonstrated that Vizio’s provision of source code in response to Visscher’s request went above and beyond what was required under the open-source licenses. Therefore, Vizio has demonstrated that response to Visscher’s request were already compelled by the open-source licenses and cannot constitute consideration for a new contract.

4. Promissory Estoppel:

“California has adopted the Restatement Second of Contracts doctrine of promissory estoppel: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The doctrine employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced. Promissory estoppel binds a promissor when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.’ The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.

Courts are given wide discretion in its application. The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 944–945 [cleaned up].)

Plaintiff has not demonstrated that it adequately pled promissory estoppel in its FAC or presented evidence it detrimentally relied on Defendant’s offer. Therefore, although the issue of promissory estoppel is not raised in the motion and the Court is not adjudicating such issue, Plaintiff has not shown that promissory estoppel leaves unadjudicated issues regarding the contract claim which preclude summary adjudication under section 437c(f).