Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise. Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed. To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More
(Plaintiff could not allege a breach of contract claim based on a letter of intent that differed from the terms of the written agreement that the parties later signed. The letter of intent clearly indicated it was not binding but rather was a mere proposal. See SCC Acquisitions v. Central Pacific Bank (2012) 207 Cal.App.4th 859.) Read More
The FAA applies to an arbitration agreement between defendant, a paratransit provider, and plaintiff, one of its drivers. Though plaintiff was not an employer "in" interstate commerce since he drove only local, in-state routes not necessarily connected to airports or other modes of interstate commerce, his employer provided paratransit services mandated by the ADA. Plaintiff was hired to and did… Read More
Google sent emails to contributors to Google Maps stating that they could "unlock" benefits like a free terabyte of storage by making further contributions to Google Maps as Local Guides. This decision holds that the emails did not constitute enforceable unilateral offers of a terabyte of storage because the emails did not say how much content the offerees had to… Read More
Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's. Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt. Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's. Sotheby's form contract referred to only a single consignor, but… Read More
Plaintiff leased a commercial property from defendant. The lease gave plaintiff an option to buy the property at its fair market value. Plaintiff exercised the option but the parties disagreed about the fair market value. After much litigation, the trial court set the price and ordered the parties to perform, but before they could do so, the Department of Transportation… Read More
Plaintiff, who was not a licensed real estate agent or broker, adequately alleged facts that could give rise to an estoppel to plead the statute of frauds as a defense to her claim for breach of an oral contract to pay her a finder's fee in connection with the sale of real property. Plaintiff alleged that in reliance on the… Read More
The trial court correctly granted defendant summary judgment in this slip-and-fall injury suit in an exercise facility's sauna room. The release of claims in the fitness center's membership agreement absolved the fitness center of liability for ordinary negligence. Plaintiff failed to submit evidence creating a triable issue of fact as to gross negligence. She claimed to have fallen because the… Read More
Plaintiff's attorney registered to use defendant's website, agreeing to its arbitration clause, before accessing the website's picture of plaintiff and then filing suit for plaintiff, alleging that defendant's commercial use of her picture violated Ohio's right of publicity law. This decision reverses denial of defendant's motion to compel arbitration, finding there are unresolved questions of fact as to whether the… Read More
Disagreeing with Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, this decision holds that a co-tenancy clause in a shopping center lease, which allowed the tenant to drastically reduce its rent if less than 60% of the shopping center's space was leased to other tenants, was enforceable. Failure of the shopping center to meet… Read More
The San Diego city attorney sued the owner of Instacart for misclassifying its gig workers as independent contractors seeking an injunction and civil penalties under B&P Code 17200. This decision holds that defendant cannot compel arbitration of the city attorney's claim. Like the EEOC in EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, the city attorney here was not… Read More
An airline employee whose duties involved loading and unloading baggage and cargo onto and from airplanes that flew interstate routes was an employee engaged in interstate commerce and thus the FAA did not apply to the arbitration clause in his employment agreement. 9 USC 1 exempts a class of workers--not a class of their employers; so the fact that Southwest… Read More
The second sentence of the FTC Holder Rule does not limit recovery of attorney fees under state statutes that render the holder liable for those fees, even on claims that can only be brought against the holder as a result of the FTC Holder Rule. Read More
Despite CCP 1710.40'sopen-ended list of potential defenses to a sister state judgment, under the Full Faith and Credit Clause, the statute does not and cannot create an opportunity to raise defenses to the merits of the underlying claims resolved in the sister state judgment. Thus, defenses based on a contract's arbitration, forum selection and choice of law clause could not… Read More
Despite a broadly worded delegation clause, a court must always decide whether the parties entered into an arbitration agreement. And, when the defendant appeals from a trial court's decision that it did not satisfy its burden of proving the existence of an arbitration agreement, the appellate court only asks whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2)… Read More
A Delaware corporation's bylaw requiring any shareholder derivative suit be brought in Delaware Chancery Court is enforceable. Such a forum selection clause does not offend any federal statute or public policy. Read More
Under St. Agnes Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187, a court cannot hold that the defendant waived the contractual right to arbitrate solely by delayed assertion of that right, absence a showing of prejudice by the opposing party. Here, defendant waited 13 months after plaintiff filed suit to move to compel arbitration and took plaintiff's deposition… Read More
Duress by a third person who is not a party to the contract is not a ground on which a party may avoid a contract, at least so long as the other contracting party is not aware of the duress and relies on the contract in good faith. Thus, here, plaintiff could not avoid her settlement agreement with defendant on… Read More
Defendant, a Delaware corporation with headquarters in California, had a federal forum provision in its articles of incorporation which provided that any claims against it under the federal Securities Act of 1933 had to be brought in federal, not state, court. This decision affirms an order dismissing without prejudice a Securities Act suit that one of the corporation's shareholders brought… Read More
As a Juul employee, Grove obtained stock options which he exercised to buy shares of Juul stock. Grove sued Juul in California asserting a claim for the right to inspect Juul's books and records and also class and derivative claims against Juul's officers and directors. The California court first stayed the inspection claim based on the forum selection clause in… Read More
