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New Cases of Interest - March 22, 2013
Apple, Inc. v. Superior Court (2013) 56 Cal.4th 128. This is a case in which the court concludes that the provisions of Civil Code Section 1747.08, which prohibits retailers from requesting or requiring as a condition to accepting a credit card as payment personal identification from the purchaser, does not apply to online purchases in which the product is downloaded electronically.
Bigler v. Harker School (2013) 213 Cal.App.4th 727. This is an action seeking to compel arbitration based on a contract entered into by a school and the parents of a student. The trial court refused to uphold the arbitration provision in the enrollment contract which had been signed by the student's parents, finding that it was unconscionable. The court of appeal, however, reversed. The court did not find there to be procedural unconscionability in that neither oppression or surprise appeared with respect to the arbitration provision in the employment contract. The arbitration clause in fact had a separate heading of "arbitration" in bold-faced font. No attempts were made to negotiate or delete the arbitration provision. The arbitration provision also did not have any indications of substantive unconscionability. The court also concluded that the arbitration provision was sufficiently broad to be applicable to tort allegations.
Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959. This is another action involving a petition to compel arbitration. In this case there were a number of different investors who invested funds into a number of different real estate investment funds. Some of the investors had arbitration provisions in their investment agreements, while others did not. The trial court refused to proceed with arbitration finding that there was a possibility of inconsistent rulings. The court of appeal reversed and remanded. The court found though in doing this that the record lacked substantial evidence to support the findings that each of the conditions set forth in the third party litigation exception of CCP §1281.2(c) had been satisfied and although inconsistent rulings on common issues might occur, the evidence was insufficient to show that this was indeed the situation.